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HAIRUL DIN BIN ZAINAL ABIDIN v PUBLIC PROSECUTOR [2004] 1 MLJ 539 CRIMINAL APPEAL NO W–05–8 OF 2001 COURT OF APPEAL (KUALA LUMPUR) DECIDED-DATE-1: 23 SEPTEMBER 2003 MOKHTAR SIDIN, MOHD SAARI AND ABDUL AZIZ MOHAMAD JJCA CATCHWORDS: Criminal Law - Dangerous Drugs Act (Malaysia) - ss 6, 39A(2) - Drug possession Difference in weight of drugs satisfactorily explained - Difference due to higher gross weight found by police and lower nett weight found by chemist - Lower nett weight stated in charge against accused - Whether difference a material discrepancy Whether benefit of doubt given to accused HEADNOTES: The appellant was convicted by the High Court on an amended charge of drug possession under s 6 of the Dangerous Drugs Act 1952 (‘the Act’) punishable under s 39A(2) thereof. He was sentenced to ten years’ imprisonment and ten strokes of the rotan. He appealed against both conviction and sentence. On appeal counsel for the appellant argued that: (i) the appellant should be punished under s 6 rather than under s 39A(2) since the actual weight of the drugs was not established; (ii) there was a material gap in relation to the weight of the drugs found in the possession of the appellant. The weight of the drugs as weighed by the police was 26g more than as weighed by the chemist. The charge against the appellant stated the weight of the drugs to be 953.2g — the weight established by the chemist. Held, dismissing the appeal and affirming the conviction and sentence: (1) The trial judge knew of the difference in weight and had explained the difference in his judgment. The drugs weighed by the police was weighed with masking tape wrapped around the drugs whereas the drugs weighed by the chemist was weighed without the masking tape. The 26g difference was due to the weight of the masking tape. In fact, the appellant was given the benefit of the doubt when the weight stated in the charge was the lesser weight (see paras 10–11). (2) Even with the lesser weight, the amount of drugs in the appellant’s possession far exceeded the prescribed amount under s 39A(1)(f) of the Act which is 50g. There was therefore no merit in counsel’s submission and the trial judge was right in sentencing the appellant under s 39A(2) of the Act (see para 11). (3) The trial judge correctly applied the principles of sentencing in sentencing the appellant. No new issue was raised in mitigation on appeal. Thus, there was no ground for the Court of Appeal to disturb

the sentence imposed by the trial judge (see para 13). [Bahasa Malaysia summary Perayu telah disabitkan oleh Mahkamah Tinggi atas pertuduhan pindaan memiliki dadah di bawah s 6 Akta Dadah Berbahaya 1952 (‘Akta tersebut’) [*540] yang boleh dihukum di bawah s 39A(2). Beliau dijatuhkan hukuman penjaran sepuluh tahun dan sepulun sebatan rotan. Beliau merayu terhadap kedua-dua sabitan dan hukuman. Semasa rayuan, peguam bagi pihak perayu telah berhujah: (i) perayu sepatutnya dihukum di bawah s 6 dan bukan di bawah s 39A(2) memandangkan berat sebenar dadah tersebut tidak dibuktikan; (ii) terdapat jurang yang material berkaitan berat dadah yang ditemui berada dalam milikan perayu. Berat dadah yang ditimbang oleh polis adalah lebih 26g daripada yang ditimbang oleh ahli kimia. Pertuduhan terhadap perayu menyatakan berat dadah sebagai 953.2g — berat yang dibuktikan oleh ahli kimia. Diputuskan, menolak rayuan dan mengesahkan sabitan dan hukuman: (1) Hakim perbicaraan mengetahui perbezaan berat tersebut dan telah menjelaskan perbezaan tersebut dalam penghakiman beliau. Dadah yang ditimbang oleh polis telah ditimbang dengan pita penutup yang melilit dadah tersebut manakala dadah yang ditimbang oleh ahli kimia tidak ditimbang dengan pita penutup. Perbezaan 26g tersebut disebabkan oleh pita penutup tersebut. Bahkan, perayu tidak berasa sangsi apabila berat dalam pertuduhan tersebut adalah lebih kurang (lihat perenggan-perenggan 10–11). (2) Walaupun dengan berat yang lebih kurang, jumlah dadah dalam milikan perayu masih melebihi jumlah yang ditetapkan di bawah s 39A(1)(f) Akta tersebut iaitu 50g. Oleh itu tiada merit dalam hujah peguam dan sememangnya hakim perbicaraan betul dalam menjatuhkan hukuman perayu di bawah s 39A(2) Akta tersebut (lihat perenggan 11). (3) Hakim perbicaraan telah dengan betul menggunakan prinsip-prinsip penghukuman dalam menjatuhkan hukuman ke atas perayu. Tiada persoalan baru yang ditimbulkan dalam mitigasi semasa rayuan. Oleh itu, tiada alasan untuk Mahkamah Rayuan campur tangan dalam hukuman yang dikenakan oleh hakim perbicaraan tersebut (lihat perenggan 13).] Notes For case on the Dangerous Drugs Act 1952 ss 6, 39A(2), see 4 Mallal’s Digest (4 th Ed, 2003 Reissue) para 147.

Legislation referred to Dangerous Drugs Act 1952 ss 6, 39A(1)(f), (2), 39B

Appeal from Criminal Trial No 45–46 of 2000 (High Court, Kuala Lumpur)

Gobind Singh Deo (Karpal Singh & Co) for the appellant. Shahrizal bin Shaari (Deputy Public Prosecutor, Attorney General’s Chambers) for the respondent. [*541] Mokhtar Sidin JCA: [1] (delivering judgment of the court):

[2] 1 The appellant in this appeal appealed against the sentence imposed by the High Court for an offence under s 6 of the Dangerous Drugs Act 1952 (‘the Act’) and punishable under s 39A(2) of the Act. The appellant was originally charged in the High Court under s 39B of the Act but at the close of the case for the prosecution the learned trial judge amended the charge to one under s 6 of the Act. The appellant was sentenced to ten years imprisonment from the date of his arrest and also ten strokes of the rotan after he elected to remain silent when the amended charge was read to him. [3] 2 The facts as stated by the learned judge were, on 16 June 2000, Chief Inspector Yap Huat Tian led a police party to a flat number Block 4, Desa Tun Razak, Sungei Besi, Kuala Lumpur. At about 11.15pm, Chief Inspector Yap Huat Tian who was at a higher floor of the flat saw the appellant walking towards the lift. Chief Inspector Yap Huat Tian then instructed Lance Corporal Lim Hee Jiang and Corporal Romli to arrest the appellant. Chief Inspector Yap Huat Tian then came down to the ground floor. When he reached the ground floor he saw that the appellant had already been arrested by Lance Corporal Lim Hee Jiang and Corporal Romli. Lance Corporal Lim Hee Jiang gave evidence that when he and Corporal Romli identified themselves as police officers the appellant attempted to run away. [4] 3 When Lance Corporal Lim arrested the appellant, he took possession of a white plastic bag with the word ‘Starmart’ which the appellant was holding. Lance Corporal Lim then handed over the plastic bag to Chief Inspector Yap. Chief Inspector Yap opened the plastic bag in front of the appellant and inside it, Chief Inspector Yap found a packet wrapped in old newspapers. [5] 4 In the packet, Chief Inspector Yap found some plant materials wrapped with masking tape which he suspected to be cannabis. After analysis, the chemist confirmed the plant materials to be cannabis weighing 953,2g. At the close of the case for the prosecution, the learned counsel for the appellant submitted that the prosecution failed to make out a prima facie case against the appellant based on two grounds: (i) the prosecution failed to prove the weight of the dangerous drugs; and

(ii) in a case of trafficking, as in this case, knowledge of possession of the dangerous drugs must be proved by direct evidence. [6] 5 The learned judge found that there was no merit on the first ground submitted by the appellant’s counsel but upheld the second ground raised by. the appellant's counsel in that the prosecution failed to prove by way of direct evidence that the appellant had knowledge that in his possession, was the drug ‘cannabis’. Even though there was evidence to show that the appellant attempted to run at the time of his arrest, that was not sufficient to show that he had knowledge of the drug. [7] 6 In his judgment, the learned judge stated that the evidence by the prosecution

proved that the appellant had only possession of the cannabis [*542] to which the appellant's counsel conceded. The learned judge then proceeded to amend the charge against the appellant to one under s 6 of the Act punishable under s 39A(2) of the Act. When the amended charge was read to the appellant he claimed trial to the amended charge. After the three alternatives were read and explained to him, the appellant elected to remain silent. The learned judge then found the appellant guilty of the amended charge and convicted the appellant. [8] 7 In mitigation, the appellant’s counsel submitted that the appellant was 27 years of age at the time of the trial and unmarried. The learned deputy public prosecutor stated that the appellant had no previous convictions but pressed for a deterrent sentence in view that the amount of cannabis found to be in the possession of the appellant was 26 times more than the permissible limit. [9] 8 The learned judge then sentenced the appellant to ten years imprisonment and ten strokes of the rotan. [10] 9 Being dissatisfied with that decision the appellant appealed to this court against his conviction and sentence. Before us, the learned counsel for the appellant submitted that the amended charge against the appellant was under s 6 of the Act, and as such he should be punished under the same s and not under s 39A(2) of the Act. The punishment under s 6 of the Act is a fine not exceeding RM20,000 or an imprisonment not exceeding five years or both. The appellant’s counsel submitted that the weight of cannabis found by the chemist was different from the weight found by the police. As such, there was a material gap as to the weight of cannabis found to be in the possession of the appellant. The appellant’s counsel submitted further that the onus of proof was on the prosecution to prove the actual weight of cannabis found to be in the appellant’s possession. Failure by the prosecution to do so would warrant the benefit of doubt be given to the appellant. Since the actual weight of cannabis was not proved the punishment to be imposed on the appellant should be under s 6 and not under s 39A(2) of the Act. In this respect, the learned trial judge in his judgment stated: With regard to the first objection raised by learned counsel it was his contention that the weight of the dangerous drugs as found by PW2 was different from that stated in the chemist report. He said that this means the evidence advanced by the prosecution in relation to the weight of the dangerous drugs is contradictory and unsatisfactory and as such ought to be rejected. This submission is answered by the evidence of PW2 who having said that there was a difference in the weight of the dangerous drugs as weighed by him and as stated in Exhibit PI6 said in re-examination that he weighed the dangerous drugs together with the masking tape. It must, however, be observed that the weight referred to in exh P16 is the ‘berat bersih’. That explains the difference in the weight of the dangerous drugs as weighed by PW2 and the chemist. Surely, the nett weight of the dangerous drugs must be different compared to its weight when weighed with the masking tape. It follows that the difference in weight must be due to the weighing of the exhibit by PW2 together with the masking tape. In any event, the evidence of PW2 clearly establishes that the whole of the dangerous drugs that he received was sent to the chemist for analysis. He was not cross-examined in any way on this issue. What therefore PW2 and the

chemist weighed was the whole of the dangerous drugs seized … [*543] [11] 10 It is clear from the above passage that the learned trial judge knew of the difference in weight and he explained why there was a difference in weight in that the weight taken by PW2 included the masking tape while the weight given by the chemist was the weight of the cannabis alone without the masking tape. As can be seen, the difference in weight was 26g which would be the weight of the masking tape. I see no fault in the explanation given by the learned judge and I could not find any reason not to accept the explanation given by him. [12] 11 The weight of cannabis stated in the charge was 953.2g which was the nett weight of cannabis as found by the chemist. The weight as found by PW2 would be 26g more than the 953.2g as stated in the charge. In my view, the appellant was given the benefit of the doubt when the weight stated in the charge was the lesser weight. Even with this lesser weight the cannabis found to be in the possession of the appellant far exceeded the prescribed weight of cannabis under s 39A(l)(f) which is 50g. I see no merit in the submission of the appellant's counsel. The learned judge was right in amending the charge where the punishment should be under s 39A(2) of the Act. [13] 12 In respect of the appeal by the appellant against the sentence imposed by the court, I would only have to refer to the judgment of the learned trial judge where he stated: In his plea in mitigation, learned counsel merely said that the accused is aged 27 and is unmarried. The learned Deputy Public Prosecutor informed the Court that the accused had no previous convictions and prayed for an appropriate sentence as the weight of drugs involved in this case is about 20 times more than the prescribed limit. It is settled law that any sentence to be passed must be a balance between the public interest to be served and the interests of the person to be sentenced. The manner in which public interest is affected by drug abuse has been appropriately dealt with in PP v Loo Choon Fatt [1976] 2 MLJ 256. The position is the same, if not worse, today (see Ang Chai Seng v PP [2000] 2 MLJ 35). The seriousness of the drug menace must therefore be reflected in the sentence to be passed so that the requirements of public interest can be served effectively. At the same time it must be realized that the proper sentence for each drug offence depends on its own peculiar circumstances. It has been held that the weight of the drugs found on a person plays a significant role in assessing the appropriate sentence (see Zaidon Shariff v PP [1996] 4 CLJ 441). In this regard I refer to PP v Tia Ah Leng [2000] 5 MLJ 401 where I had the occasion to say at p 412: ‘As the penalties for drug offences under the Act vary dependent on the weight of drugs involved the imposition of the maximum sentence in a particular case will be guided by the weight though it cannot be the yardstick in all cases. In saying this I refer to R v Laurentiu and Bechru (1992) 63 A Crim R 402 where Wood J observed that it is not entirely appropriate to place too

much emphasis on the precise quantity of the drug involved, because in some cases the possession relates to that of an intermediary of principal in the course of an enterprise that is judged particularly criminal, whereas in other cases the possession may be that of the end user. Be that as it may, I must immediately observe that these mitigating circumstances may be displaced in a particular case where the quantity of drugs involved is large. This is because quantity can in fact supply evidence of motive (personal need versus greed), degree of involvement, and potential for damage to [*544] community as well as being an indicator of the gravity of the offence (see Sentencing: State and Federal Law in Australia (2nd Ed) by Fox and Freiberg p 1009). A claim of possession for mere personal consumption may also be not sustainable if the street value of the drugs is disproportionate to the financial standing of an accused. The mitigating effect of merely being an intermediary may also be weakened if the quantity of drugs is large thereby indicating active involvement in the enterprise. The absence of any of these circumstances in favour of an accused would be an indication of his heinous intention and thereby militate against innocent possession with the result that the imposition of the maximum sentence may be justified.’ The plea in mitigation of the accused consisted of a mere statement of his age and marital status. He did not give evidence so as to enable the Court to ascertain the role he played in being found in possession of the dangerous drugs. Neither did he state anything to that effect in his plea in mitigation. The weight of the dangerous drugs involved does not support the inference that he kept them for his own consumption. In the circumstances, bearing in mind the principles of sentencing that I have referred to and the fact that the accused is a first offender I convicted him and imposed a sentence of ten years imprisonment and ten strokes of the rotan. [14] 13 It is clear to me that the learned judge had applied the correct principle of sentencing when he imposed the sentence on the appellant. Before us, the appellant’s counsel repeated the same mitigation that he did in the court below. No new issue was raised in respect of the mitigation. As such, I could not find any ground to disturb the sentence imposed by the learned judge. [15] 14 For the above reasons, we dismissed the appeal in respect of conviction and the sentence. We affirmed the conviction and the sentence imposed by the learned judge. ORDER: Appeal dissmissed. Conviction and sentence affirmed. LOAD-DATE: 05/21/2008
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© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal TEH GEOK HOCK V PUBLIC PROSECUTOR [1989] 3 MLJ 162 CRIMINAL APPEAL NO 72 OF 1987 SUPREME COURT (KUALA LUMPUR) DECIDED-DATE-1: 21 JULY 1989 HASHIM YEOP A SANI CJ (MALAYA), HARUN HASHIM AND MOHAMED YUSOFF SCJJ CATCHWORDS: Criminal Law - Dangerous drugs - Trafficking in - Defence that drug was for own consumption and not for trafficking - Whether accused being an addict could also be a drug trafficker - Meaning of trafficking - Burden on accused to rebut presumption -

Dangerous Drugs Act 1952, ss 2, 37 & 39B Evidence - Presumption - Burden on accused to rebut - Dangerous Drugs Act 1952, ss 2, 37 & 39B Words and Phrases - 'Trafficking' - Dangerous Drugs Act 1952, s 2 HEADNOTES: In this case the appellant had been charged with trafficking in a dangerous drug, to writ, heroin. When the appellant was arrested he had ten small plastic packets of heroin concealed in the front part of his underpants. The defence of the appellant was that he was at the material time a severe drug addict and that the heroin found on him was for his own consumption. The learned trial judge accepted the evidence of the defence that the appellant was a drug addict on the day of his arrest and that in all probability the addition was quite severe. The learned judge however considered whether the appellant, being an addict, could not also be a drug trafficker within the meaning of the Act. After considering the evidence he rejected the explanation on the ten packets of heroin found on the person of the appellant and was satisfied that the appellant was trafficking in the drugs as charged and convicted the appellant. The appellant appealed. Held, dismissing the appeal: (1) The definition of 'trafficking' in the Dangerous Drugs Act is wide and includes not only buying and selling but also carrying, concealing and keeping. (2) Considering the case from the evidence of both the prosecution and the defence the facts proved fall squarely into the definition of trafficking in the Dangerous Drugs Act. The appellant was found in possession, custody and control of the heroin the weight of which is more than 15 g. This invoked the presumption of trafficking under s 17 of the Act. There is the undisputed evidence of concealment. The appellant also admitted that he bought the drugs for his friends and that he would distribute the drugs to his friends. Finally in his cautioned statement he stated he wanted to sell the drugs to a person he named. (3) Although the concluding paragraph of the judgment of the learned judge was not couched in clear language to reflect the proper test to be applied, however after reading the whole of his judgment the court was satisfied that what the learned judge meant to say was that having viewed the totality of the evidence he was satisfied that the presumption of trafficking was not rebutted on a balance of probability. (4) There was ample evidence in this case to convict the appellant on a charge of trafficking in a dangerous drug under the Act and the appeal is accordingly dismissed and the sentence confirmed. Cases referred to Ong Ah Chuan v PP [1981] 1 MLJ 64 PP v Yuvaraj [1969] 2 MLJ 89 Akin Khan bin Abdul Rahman v PP [1987] 2 MLJ 217 Legislation referred to

Dangerous Drugs Act 1952 ss 2, 37, 39(B)(2) Misuse of Drugs Act (Cap 185, 1985 Ed) [Sing]

Sidney Augustin ( K Siva Segara with him) for the appellant. Ng Aik Guan (Deputy Public Prosecutor) for the respondent. LAWYERS: Sidney Augustin ( K Siva Segara with him) for the appellant. Ng Aik Guan (Deputy Public Prosecutor) for the respondent. JUDGMENTBY: HASHIM YEOP A SANI CJ (MALAYA)

(delivering the judgment of the court): The appellant is charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') that on 20 December 1983 at about 12.50am at No 8, Tepian Loke Yew, Off Jalan Loke Yew, Kuala Lumpur did on his own behalf traffic in a dangerous drug, to wit, 36.97 gm of heroin, thereby committing an offence punishable under s 39B(2) of the Act. Immediately before his arrest the appellant was with three other male Chinese in a Honda Civic car bearing registration no AAK 2646 which was stopped by the police at the place mentioned in the charge. The appellant was at the time of his arrest 20 years 10 months old. Throughout the trial the appellant never disputed the fact that at the time of his arrest he had ten small plastic packets of heroin concealed under the front part of his underpants. The packets contained a total of 86.74 g nett of a light brown powdery substance which on analysis the chemist found to contain 36.97 g of heroin. The prosecution's case was straightforward. The heroin being 36.97 g, the appellant was presumed under s 37(da)(i) to have been trafficking in the drug until the contrary is proved. Thus the learned judge called upon him to make his defence. The appellant gave his evidence on oath and also called five other witnesses. The crux of his defence is that he was at the material time a drug addict, and a severe one at that, and that the heroin found [*163] on his person was for his own consumption. Defence counsel both in the court below and before us valiantly canvassed the proposition that since there was overwhelming evidence that the appellant was a hardcore addict at the time of his arrest, the presumption of trafficking has been rebutted on the balance of probability and that the heroin found on him was for his own consumption and not for trafficking. It seems quite clear to us that the learned judge accepted the evidence of the defence that the appellant was a drug addict on the day of his arrest and that in all probability the addiction was quite severe. Then the learned judge asked himself whether the

appellant, being an addict, could not also have been a drug trafficker within the meaning of the Act. To satisfy himself the learned judge considered the evidence of the defence relating to the ten packets of heroin found concealed on the person of the appellant. The learned judge found from the evidence that the appellant's drug addiction required him to use half a packet of heroin a day. The appellant in his evidence said that the whole amount would last him 30 days. He also said that he bought the ten packets to share with his two friends and that the two friends had also contributed towards the purchase. Under cross-examination the appellant said that he had contributions from his friends to buy the ten packets of heroin which cost $ 600. The defence also relied on the cautioned statement of the appellant made to DW2, Insp Saliman. He said he gave the statement voluntarily. The intention of the defence was to show by way of a voluntary statement that the appellant was a drug addict. However in the cautioned statement itself in response to the question, 'Mengapa dadah yang didapati pada kamu itu banyak?' ('Why was the amount of drug found on you so much?') the reply by the appellant was, 'Sebab saya hendak jual kepada Saw Chai yang bekerja di Paris Pub.' ('Because I wanted to sell to Saw Chai who was working in Paris Pub'.) It is quite clear then that although the learned judge accepted the evidence that the appellant was a drug addict, he rejected his explanation of the ten packets of heroin found on his person. He was satisfied that the appellant was trafficking in the drugs as charged and convicted the appellant. 'Trafficking' is defined in the Act as follows: 'Trafficking' includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug. True, the definition in the Act sounds artificial and not according to the ordinary meaning of the word 'trafficking' which is normally understood to mean to trade in, buy or sell, any commodity, albeit often with sinister implication. See also the Shorter Oxford English Dictionary. The definition of 'trafficking' in the Act is wide and includes not only buying and selling, but also carrying, concealing and keeping. It is totally different from the definition of the word 'traffic' in the Singapore Misuse of Drugs Act. In the Singapore provision to 'traffic' in a controlled drug so as to constitute an offence of trafficking involves something more than passive possession or selfadministration of the drug. See Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64. Considering this case from the evidence of both the prosecution and the defence the facts proved fall squarely into the definition of 'trafficking' in our Act. The appellant was found in possession, custody and control of the said heroin the weight of which is more than 15 gm. This invoked the presumption of trafficking under s 37 of the Act. There is the undisputed evidence of concealment (ten packets of the heroin found concealed in the underpants of the appellant). The appellant also admitted that he bought the drugs for his friends and that he would distribute the drugs to the friends. Finally in his cautioned statement he stated that he wanted to sell the drugs to one Saw Chai working in Paris Pub. To digress a little we would like to point out that the concluding paragraph of the judgment of the learned judge was not couched in a clear language to reflect the

proper test to be applied. See PP v Yuvaraj [1969] 2 MLJ 89. However, after reading the whole of his judgment we are satisfied that what the learned judge meant to say was that having viewed the totality of the evidence he was satisfied that the presumption of trafficking was not rebutted on the balance of probability. This court had occasion to deal with a similar language lapse in a case also under s 39B(2) of the Act ( Akin Khan bin Abdul Rahman v PP [1987] 2 MLJ 217) which also referred to PP v Yuvaraj [1969] 2 MLJ 89. In this case there was ample evidence to convict the appellant on a charge of trafficking in a dangerous drug under the Act. The appeal is accordingly dismissed and the sentence confirmed. Appeal dismissed. SOLICITORS: Solicitors: Augustin Negrin & Co. LOAD-DATE: June 3, 2003
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© 2008 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal PDF Print Format PUBLIC PROSECUTOR v YAP FOOK CHOY [2004] 4 MLJ 304 CRIMINAL TRIAL NO 47–04 OF 2001 HIGH COURT (KOTA KINABALU) DECIDED-DATE-1: 14 JUNE 2004 SULONG MATJERAIE J CATCHWORDS: Criminal Law - Dangerous Drugs Act (Malaysia) - s 37(d) - Possession of drugs Whether the accused had physical control and knowledge of the impugned drugs Dangerous Drugs Act 1952 s 37(d) Criminal Law - Dangerous Drugs Act (Malaysia) - s 37(da) - Trafficking - Weight of Methaphetamine was 152.43g - Whether amount of drugs supported charge of trafficking - Dangerous Drugs Act 1952 s 37(da) Criminal Procedure - Trial - Prima facie case - Whether prosecution had made out a prima facie case Evidence - Expert evidence - Chemist’s analysis of substance - Chemist blended crystalline substances into a powder of uniform homogenous concentration for testing - Whether amount and weight of samples tested used to determine whether crystalline substances were Methamphetamine insufficient - Whether chemist’s opinion could be relied on - Dangerous Drugs Act 1952 s 37(j) Evidence - Witness - Failure to call witness - Accused stated that drugs could have belonged to ‘Lau Yeh’ - ‘Lau Yeh’ not called as witness - Whether ‘Lau Yeh’ a fictitious character HEADNOTES: The accused was charged with trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 (‘DDA’). At about 2.30pm on 17 April 2001 the accused’s vehicle was stopped by police. The accused was alone and upon inspection of the vehicle the police found a red plastic bag on the floor of the front left hand side of the passenger’s seat containing a box with four clear plastic bags and another red paper envelope on the dashboard at the left front side of the vehicle, both containing a crystalline substance suspected to be Methamphetamine. These substances were later analysed by a Government Chemist and found to be a crystalline substance of the same nature and description. The chemist weighed the substance in each packet and blended the contents to a powder of uniform homogenous concentration and then tested random and representative samples of the homogenous powder using four

types of tests. The powder from all the crystalline substances contained Methamphetamine and, after a quantitative test for concentration and purity, the chemist established that the net combined weight of Methamphetamine was 152.43g. The accused claimed to have no knowledge of the packets containing the drug and that they may have belonged to another person to whom he owed money called ‘Lau Yeh’ who had also been in his vehicle earlier that day. The issues raised at trial were: (1) whether a prima facie case had been made out by the prosecution; (2) whether the amount and weight of the samples tested used to determine whether the crystalline substances were Methamphetamine were insufficient and whether the opinion of the chemist should be relied upon; (3) whether the person [*305] called ‘Lau Yeh’ existed; (4) whether the acussed was in possession of the drugs and (5) whether the amount of drugs supported a charge of trafficking. Held, finding the accused guilty, convicting him of trafficking and imposing the death sentence: (1) ‘Prima facie’ means on the face of it or at first glance and a ‘prima facie case’ is a case which is sufficient to call for an answer. ‘Prima facie evidence’ is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive. There should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected; ( PP v Ong Cheng Heong [1998] 6 MLJ 678, [1998] 4 CLJ 209) (see para 57). (2) The prosecution had made out a prima facie case against the accused which if it remained unrebutted would warrant a conviction. This finding was based on an objective assessment of the evidence adduced in court (see para 58). (3) Unless the opinion of a Government Chemist is so inherently incredible, the court is entitled to accept such opinion at face value as true and accurate unless the defence calls evidence in rebuttal by another expert to contradict that opinion; K Saravanan a/l S Karuppiah v PP [2002] 4 CLJ 144, [2002] 3 MLJ 465 and Munusamy v PP [1987] 1 MLJ 492 followed. The Government chemist had carried out a detailed analysis of the impugned substance and he had testified positively that his tests showed the substance to be Methamphetamine. The evidence given by the chemist was satisfactory and could not be faulted (see paras 51, 54 and 55) (4) What is required for testing is that the actual amount or weight of samples taken for testing be given by the chemist in order to comply with s 37(j) of the DDA. Although the substance in four plastic bags was mixed and blended into a homogenous powder for testing the actual weight of the content of each plastic bag was identified, determined and given by the chemist; the amount tested by the chemist was sufficient to determine that the drug was Methamphetamine; and according to the chemist, blending the crystalline substance to a homogenous powder meant that if any part of the powder were to be taken for qualitative or quantitative analysis, it will produce a similar percentage of concentration or purity and even if the entire content was tested, the purity of the Methamphetamine found will be similar and the outcome will be the same; Loo Kia Meng v PP [2000] 3 MLJ 664, [2000] 3 CLJ 653 distinguished (see para 54).

(5)

From the testimonies of the accused and DW3, although they both know ‘ Lau Yeh’, his real name was not known. ‘Lau Yeh’ is a ‘loan shark’ yet there was no interest on the loan of RM100,000. More surprising, there was no loan agreement and neither was there any security offered for the loan. Both witnesses also failed to provide the place where ‘Lau Yeh ’ could be found. Even the simple thing like the registration plate number of ‘Lau Yeh’s’ motorcycle could not be provided by them. ‘Lau Yeh ’ was only a fictitious character (see para 85). (6) The accused was seen to be driving slowly in a busy street at Inanam and when he was stopped he was in a state of shock. He asked PW2: ‘ Boss, kita pergi ke hadapan, kita boleh cerita’ and when the impugned drug was found the accused uttered the words ‘Ada sikit barang’. The irresistible inference was that the accused must have had knowledge of the impugned drugs inside the red plastic bag as well as the red paper envelope at the dashboard on the left front side of the vehicle and therefore that the accused had physical control of the impugned drug (see paras 94 and 95). (7) Due to the weight of the drug involved, the accused was presumed under s 37(da)(xvi) of the DDA, until the contrary is proved, to be trafficking in the said drug. After careful examination and evaluation of the evidence in its entirety, and perusal of all the authorities filed into this court, there was overwhelming evidence to show that the prosecution had proved its case beyond any reasonable doubt and that the defence failed to raise any reasonable doubt on the prosecution case (see paras 97 and 99). [Bahasa Malaysia summary Tertuduh telah dituduh mengedar dadah berbahaya di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 (‘ADB’). Pada 2.30pm pada 17 April 2001 kenderaan tertuduh telah dihentikan oleh polis. Tertuduh berseorangan dan setelah polis memeriksa kenderaan itu polis telah menjumpai satu beg plastik merah di atas lantai di sebelah kiri bahagian hadapan tempat duduk penumpang yang mengandungi satu kotak dengan empat beg plastik jernih dan satu sampul surat merah di atas papan pemuka pada sebelah kiri bahagian hadapan kenderaan itu, kedua-duanya mengandungi bahan berhablur yang disyaki Methamphetamine. Bahan ini kemudiannya dianalisakan oleh seorang Ahli Kimia Kerajaan dan didapati adalah bahan berhablur yang mempunyai sifat dan gambaran yang sama. Ahli kimia itu telah menimbang bahan di dalam setiap paket dan menyebatikan kandungan itu kepada bedak yang mempunyai kepekatan seragam yang sama dan telah menguji sampel-sampel rawak dan representatif bedak yang seragam itu menggunakan empat jenis ujian. Semua bedak daripada bahanbahan berhablur mengandungi Methamphetamine, dan selepas ujian kuantitatif untuk kepekatan dan ketulenan, ahli kimia itu mendapati bahawa jumlah berat bersih Methamphetamine adalah 152.43g. Tertuduh tidak mengaku mempunyai pengetahuan tentang paket-paket itu yang mengandungi dadah dan berkata bahawa ia mungkin dipunyai oleh seorang kepada siapa beliau terhutang wang dipanggil ‘Lau Yeh’ yang berada di dalam kenderaan beliau pada hari itu. Isu-isu yang dibangkitkan di perbicaraan itu adalah: (1) sama ada kes prima facie telah dibuktikan oleh pihak pendakwaan; (2) sama ada jumlah dan berat sampel-sampel [*306] yang diuji yang digunakan untuk menunjukkan sama ada bahan berhablur itu adalah Methamphetamine tidak mencukupi dan sama ada pendapat ahli kimia itu patut diikut; (3) sama ada orang yang bernama ‘Lau Yeh’ wujud; (4) sama ada tertuduh mempunyai milikan dadah itu dan (5) sama ada jumlah dadah itu menyokong

pertuduhan pengedaran. Diputuskan, mendapati tertuduh bersalah, menyabit beliau mengedar dadah dan mengenakan hukuman mati: (1) ‘Prima facie’ bermakna pada permukaannya atau pada pertama kali pandang dan ‘prima facie case’ adalah kes yang mana memadai untuk meminta jawapan. ‘Prima facie evidence’ adalah keterangan yang mencukupi untui membuktikan fakta dalam ketiadaan keterangan bercanggah, tetapi tidak muktamad. Sepatutnya terdapat keterangan yang boleh dipercayai pada setiap bahagian kesalahan itu. Keterangan yang boleh dpercayai adalah keterangan yang telah diuji dan telah dinilaikan. Sebarang keterangan yang tidak selamat digunakan patut ditolak; ( PP v Ong Cheng Heong [1998] 6 MLJ 678, [1998] 4 CLJ 209) (lihat perenggan 57). (2) Pihak pendakwaan telah membuktikan kes prima facie terhadap tertuduh yang jika ia tidak dipatahkan akan mewajibkan sabitan. Keputusan ini berdasarkan penaksiran keterangan yang dikemukakan di mahkamah yang objektif (lihat perenggan 58). (3) Kecuali jika pendapat seorang Ahli Kimia Kerajaan sukar dipercayai, mahkamah ini berhak menerima pendapat sebegitu berdasarkan nilai lahirnya sebagai benar dan tepat kecuali jika pihak pembelaan mengemukakan keterangan mematah oleh pakar yang lain untuk menyangkal pendapat itu; K Saravanan a/l S Karuppiah v PP [2002] CLJ 144, [2002] 3 MLJ 465 dan Munusamy v PP [1987] 1 MLJ 492 diikut. Ahli kimia kerajaan telah menjalankan analisa yang terperinci bahan yang dipersoalkan dan beliau telah memberi keterangan secara positif bahawa ujian beliau menunjukkan bahan itu sebagai Methamphetamine. Keterangan yang diberikan oleh ahli kimia adalah memuaskan dan tidak dapat disalahkan (lihat perenggan 51, 54 dan 55). (4) Apa yang diperlukan untuk menguji adalah bahawa jumlah atau berat sampel-sampel yang diambil untuk ujian sebenarnya diberikan oleh ahli kimia untuk mematuhi s 37(j) ADB. Walaupun bahan di dalam empat beg plastik telah dicampur dan disebatikan menjadi bedak seragam untuk diuji berat sebenar kandungan setiap beg plastik dikenal pasti, ditentukan dan diberi oleh ahli kimia; jumlah yang diuji oleh ahli kimia adalah cukup untuk menentukan bahawa dadah itu adalah Methamphetamine; dan mengikut ahli kimia itu, menyebatikan bahan berhablur kepada bedak seragam bermakna bahawa jika sebarang bahagian daripada bedak itu diambil untuk analisa kualitatif atau kuantitatif, ia akan menghasilkan peratus kepekatan atau ketulenan yang sama dan jika seluruh kandungan itu diuji, ketulenan Methamphetamine yang didapati akan sama dan keputusannya adalah sama; Loo Kia Meng v PP [2000] 3 MLJ 664, [2000] 3 CLJ 653 dibezakan (lihat perenggan 54). [*307] (5) Daripada keterangan tertuduh dan DW3, walaupun mereka berdua mengenali ‘ Lau Yeh’, nama sebenar beliau tidak diketahui. ‘Lau Yeh’ adalah seorang ‘loan shark’ tetapi tidak terdapat faedah pada pinjaman RM100,000. Apa yang lebih memeranjatkan adalah tidak terdapat perjanjian pinjaman ataupun cagaran untuk pinjaman itu. Kedua-dua saksi juga gagal memberitahu tempat di mana ‘Lau Yeh’ boleh dijumpai. Perkara yang semudah nombor plet pendaftaran motorsikal ‘Lau Yeh’ juga tidak dapat dibekalkan oleh mereka. ‘Lau Yeh’ hanyalah satu rekaan (lihat perenggan

85). Tertuduh telah dilihat memandu di jalan yang sibuk di Inanam dan dan apabila beliau dihentikan, beliau di dalam keadaan terperanjat. Beliau bertanya kepada PW2 ‘Boss, kita pergi ke hadapan, kita boleh cerita’ dan apabila dadah yang dipersoalkan dijumpai, tertuduh berkata ‘Ada sikit barang’. Inferens yang tidak dapat dibendung adalah bahawa tertuduh mesti mempunyai pengetahuan mengenai dadah yang dipersoalkan di dalam beg plastik berwarna merah dan sampul surat merah di atas papan pemuka di sebelah kiri bahagian hadapan kenderaan itu dan oleh itu tertuduh mempunyai kawalan fizikal dadah yang dipersoalkan itu (lihat perenggan 94 dan 95). (7) Oleh kerana berat dadah yang terlibat, tertuduh dianggap di bawah s 37(da)(xvi) ADB, sehingga dibuktikan sebaliknya, mengedar dadah itu. Setelah penelitian dan penilaian keterangan secara menyeluruh, dan penelitian semua autoriti yang difailkan di dalam mahkamah ini, terdapat keterangan yang amat sangat untuk menunjukkan bahawa pihak pendakwaan telah membuktikan kesnya melebihi keraguan yang munasabah dan pihak pembelaan gagal membangkitkan keraguan munasabah pada kes pihak pendakwaan (lihat perenggan 97 dan 99).] (6) Notes For cases on s 37(d) of the Dangerous Drugs Act (Malaysia), see 4 Mallal’s Digest (4 th Ed, 2003 Reissue) paras 163–168. For cases on s 37(da) of the Dangerous Drugs Act (Malaysia), see 4 Mallal’s Digest (4 th Ed, 2003 Reissue) paras 192–201. For cases on prima facie case, see 5 Mallal’s Digest (4 th Ed, 2001 Reissue) paras 4160–4175. For cases chemist’s analysis of substance, see 7(1) Mallal’s Digest (4 th Ed, 2001 Reissue) paras 1366–1368. For cases on failure to call witness, see 7(1) Mallal’s Digest (4 th Ed, 2001 Reissue) paras 2589–2592. For meaning of and presumption of possession of dangerous drugs, see 11 Halsbury’s Laws of Malaysia, para [190.549]. For trafficking in dangerous drugs, see 11 Halsbury’s Laws of Malaysia, para [190.582]. For opinion of experts, see 12 Halsbury’s Laws of Malaysia, paras [210.117]– [210.128]. For failure to call witnesses, see 12 Halsbury’s Laws of Malaysia, paras [210.035]. [*308]

Cases referred to Chan Pean Leon v PP [1956] MLJ 237 K Saravanan a/l S Karuppiah v PP [2002] 4 CLJ 144, [2002] 3 MLJ 465 Kesavan a/l Petchayo @ Balakrishnan v PP [2003] 2 MLJ 209, [2003] 1 CLJ 846 Leow Nghee Lim v Reg [1956] MLJ 28 Loo Kia Meng v PP [2000] 3 MLJ 664, [2000] 3 CLJ 653 Muhammad b. Hassan v PP [1998] 2 CLJ 170

Munusamy v PP [1987] 1 MLJ 492 PP v Ong Cheng Heong [1998] 6 MLJ 678, [1998] 4 CLJ 209 PP v Tang Kheng Teong & Anor [1997] 3 MLJ 637 Tong Peng Hong v PP [1955] MLJ 232 Wong Nam Loi v PP [1997] 3 MLJ 795 Legislation referred to Criminal Procedure Code s 180(3), 277 Dangerous Drugs Act 1952 ss 37(d), 37(da), 37(da)(xvi), 37(j), 37A(1)(b), 39B(2), First Schedule Norliza Yusoff (Attorney-General’s Chambers) for the prosecution. Cedric Choo (Cedric Choo & Co) for the defendant. Sulong Matjeraie J: [1] 1 The accused, Mr Yap Fook Choy, was charged upon the following charge: That you, on 17 April 2001 at around 2.30pm, in front of Choon Nyen Fatt Supermarket, Pekan Inanam, in the District of Kota Kinabalu, in the State of Sabah, on your own behalf, did traffic in a dangerous drug, to wit 152.43 grammes of Methamphetamine, and you have thereby committed an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 (Revised 1980) and punishable under s 39B(2) of the same Act. Case of the Prosecution [2] 2 According to the evidence led by the prosecution, on 17 April 2001 at around 2.30pm, ASP Fisol bin Salleh (‘PW2 ’) led a police party comprising Chief Inspector Ederian Masaat, Chief Inspector Afandi Bakar, Detective Sergeant Major Japri Bakul @ Henry, Lance Corporal Sabturani bin Maul and Constable Ibrahim Mahadi, all of the Narcotics Branch, Police Headquarters, Kepayan, Kota Kinabalu and conducted an anti-narcotics operation at Pekan Inanam, Mengattal, Kota Kinabalu. [3] 3 At about 2.30pm with the assistance of his men, PW2, ASP Fisol stopped one vehicle Suzuki Vitara, purplish in colour, bearing plate registration number SA 8202 L (vehicle) driven slowly by a male Chinese driver, later identified as Yap Fook Choy, the accused, in front of Choon Nyen Fatt supermarket, Inanam. The accused was alone inside the vehicle. PW2 then approached the vehicle and opened its driver’s door. When PW2 introduced [*309] himself as a Police Officer by showing his warrant card, the accused was in a state of shock and said: ‘Boss kita pergi ke hadapan, kita boleh cerita’. This request was ignored by PW2. [4] 4 PW2 ordered the accused to get out of his vehicle and with the help of Detective Corporal Sabturani, Constable Ibrahim bin Mahadi, and assisted by Detective Sergeant Major Japri Bakul, PW2 personally made an inspection inside the vehicle. [5] 5 In the presence of the accused, PW2 found a red plastic bag on the floor of the front left hand side of the passenger’s seat. PW2 asked the accused as to what was inside the red plastic bag, and the accused said: ‘ada sikit barang’. PW2 immediately administered to the accused the statutory caution under s 37A(1)(b) of the Dangerous Drugs Act 1952 (‘DDA’).

[6] 6 PW2 then took possession of the red plastic bag and when he opened the said plastic bag in front of the accused, he found inside it one blue/white box with the writing of ‘Tape Dispenser’. PW2 opened the said box and found four (4) clear plastic bags containing a crystalline substance which PW2 suspected to be Methamphetamine. PW2 ordered his men to handcuff the accused. [7] 7 A further search was conducted on the other parts inside the vehicle and PW2 found one red paper envelope with the writing ‘Good Ties Good Times at Parkson’ on the dashboard at the left front side of the vehicle. Inside the red paper envelope PW2 found one clear plastic bag containing a crystalline substance suspected to be Methamphetamine. A body search was made on the accused’s person by PW2 but he found nothing incriminating except for a few personal items of the accused such as a chocolate coloured wallet (‘P25’) containing RM600 cash (‘P27’), driving licence (‘P26’), ATM Mayban Finance Card (‘P28’) and two hand phones (mobiles) of Nokia (‘P23’) and Siemens (‘P24’) brand. Having searched the vehicle PW2 took possession of all the exhibits seized both from the accused’s person and the vehicle and he personally drove the vehicle away. The exhibits were at all times in the personal possession of PW2. [8] 8 When PW2 drove the vehicle, the accused was sitting at the back passenger seat escorted by Detective Corporal Sabturani, Constable Ibrahim Mahadi. They went to the residence of the accused but found nothing incriminating. While there, all the exhibits were in the possession of PW2. Later, the accused was taken to the Narcotics Department of the District Police Headquarters, Karamunsing, Kota Kinabalu where, in his (the accused’s) presence PW2 made markings on all the exhibits seized. PW2 drew up the search list and weighed the seized suspected drug. While driving the vehicle, PW2 kept all the exhibits on his lap. [9] 9 PW2 made a Police Report on the arrest and the seizure of exhibits made under Menggatal Police Report No. 1540/2001. Thereafter all the seized exhibits together with the accused were handed over to the Investigating Officer, PW5 Chief Inspector Zulfakar bin Abdul Aziz (‘IO’). [*310] [10] 10 The vehicle driven by the accused ie the Suzuki Vitara SA 8202 L was bought by the accused for the use of PW4 Liew Chwee Ing, his wife. The accused had been the registered owner of the said vehicle since 1996. [11] 11 The above facts as made out by the Prosecution are not disputed by the defence as reflected in their submission of no case to answer at encl 30 duly filed and read in this court. The Evidence of the Chemist [12] 12 PW1 En Shaari bin Desa, the Chemist, gave evidence that he has worked as a chemist since 1992. He has an Honours Degree in Science (Chemistry) from the Universiti Kebangsaan Malaysia, Bangi where he graduated in 1991. He is a member of the Institute of Chemists and had followed in service training and had also exposed himself to the workings of senior chemists during the tenure of his service. Since 1997 he has analysed dangerous drugs which includes among others cannabis, methamphetamine, heroin, monoacetylmorphines, 3, 4 Methylenedioxyamphetamine, Ketamine, codine. He had given evidence in both the High Court as well as the lower

courts. [13] 13 PW1 took great care in analyzing the exhibits handed over to him by PW5 Chief Inspector Zulfakar bin Abd Aziz. [14] 14 The exhibits were kept in a locked steel cabinet in the strong room at the Narcotics division of the Chemistry department Malaysia, Kota Kinabalu. Only PW1 has the key to the steel cabinet whereas the keys to the strong room were kept by the Director of Chemistry Department, Sabah. [15] 15 The exhibits were: (1) the red plastic bag which contains the four clear plastic bags containing a crystalline substance and (2) a red paper envelope which contains one clear plastic bag containing a crystalline substance. [16] 16 The markings on the four clear plastic bags found in the red plastic bag were a signature on each one of them; the date of 17 April 2001 and they were numbered A1, A2, A3 and A4, and to each of them the Chemist marked (KK)FOR 691/01-0 followed by capital letter ‘S’ and were respectively marked S1, S2, S3 and S4. [17] 17 In the meantime the red paper envelope had a marking of the letter ‘B’, a signature and was dated 17 April 2001. Inside it the clear plastic bag was marked ‘B1’ which contained a crystalline substance. [18] 18 The chemist found that the contents of the five packets were a crystalline substance of the same nature and description. He weighed them using an electronic scale ‘Sartorius’ model BP221S, code ‘MB 15’. Before weighing was done, the accuracy and competency of the scale was verified using two standard weights; one with a weight of 1.000gm and the other 100.000gm in weight. Thereafter the electronic scale was confirmed to be in good working condition. [*311] [19] 19 The weight of the clear crystalline substance in respect of the four plastic bags exhs P10A, P10B, P10C and P10D were 49.3972g, 49.3320g, 49.3888g and 49.2661g respectively, and thus having a combined weight of 197.3841g. [20] 20 The weight of the clear crystalline substance found in the plastic B1 (exh P13) was 5.0466g. [21] 21 PW1 re-emphasised that the crystalline substances found were of the same nature and description. After weighing had been done, PW1 mixed and blended the contents from plastic bags P10A, P10B, P10C and P10D using a ‘Sumeet’ commercial blender in order to achieve a powder of uniform homogenous concentration. The blending process took five (5) minutes. When cross examined as to the purpose of blending the crystalline substance from P10A, P10B, P10C and P10D for five minutes, PW1 replied: ‘Tujuan ketulan hablur putih dikisar ialah untuk menjadi ianya homogen bermaksud, mana-mana bahagian pada serbuk tersebut sekiranya diambil untuk analisis qualitatif dan quantitatif akan memberikan peratus ataupun nilai kepekatan yang seragam.’

[22]

This court’s translation:

‘The purpose of blending the white crystallized substance is to make it homogenous, which means, should any part of the powder be taken for qualitative and quantitative analysis, it will produce a similar percentage of concentration.’ Tests Undertaken [23] 22 Three colour tests were undertaken. The first: Marquis Reagent test where PW1 took random and representative samples of the homogenous powder. The outcome of the Marquis Reagent test was that PW1 found the presence of ‘Primary Amine’ group in the said homogenized powder. [24] 23 The second colour test, the ‘Simon’s’ test found the presence of ‘Secondary Amine’ in the said homogenized powder. A third test was done by using ‘Silver Nitrate’ and this resulted in the finding indicating the presence of a salt base known as ‘Hydrochloride’. [25] 24 After the three colour tests were done, PW1 concluded that the crystalline substance blended to become homogenized powder containing ‘Methamphetamine Hydrochloride’. Further, a fourth test was conducted by PW1 using Gas Chromatography-Mass Spectrometry (GC-MS) by taking random representative samples from the homogenized powder. The machine used was ‘Shimadzu’ and the column used was HP-5.4. [26] 25 From the analysis undertaken using the said machine, it was confirmed that the blended homogenized powder contained ‘Methamphetamine’, that is the type of dangerous drug as listed in the First Schedule of the Dangerous Drug Act 1952. [*312] [27] 26 After the existence of Methamphetamine has been established, a quantitative test was undertaken by PW1 to ascertain its percentage of concentration or purity. For this test, PW1 employed a machine ‘Gas Chromatography Flame Ionic Detector’ — ‘Shimadzu’ column HP-5 and used 24 replicates from random and representative samples. PW1 explained that 24 replicate samples were used as this is the standard practice. PW1 said that based on statistics for chemistry analysis, the minimum samples for quantitative analysis was 21. He has in fact exceeded the minimum requirement by using 24 replicates. The outcome of this quantitative test showed that the percentage of concentration or purity of Methamphetamine in the crystalline substance was 75.31% after allowing a margin of error of O.94%. PW1 therefore concluded that the net weight of Methamphetamine from the homogenous powder from A1l, A2, A3 and A4 (exhs P10A, P10B, P10C and P10D) was 148.64g. [28] 27 Here this court notes that this weight of 148.64g exceeds the 50g stipulated under s37(da)(xvi) of the DDA. [29] 28 The total weight used for quantitative analysis was 0.3386g. For colour tests and the test using GCMS an amount of 7.12g was used. [30] 29 PW1 conducted the same test on the crystalline substance found in the clear plastic bag found in the red paper envelope ‘B1’ (‘P13’) adopting the same

methods as hereinbefore mentioned except that he used ‘Mortar’ to turn the said crystalline substance into powdery form. PW1 used 0.72g for colour and GCMS tests and 0.1133g was used in the quantitative test coming from six representative and random samples. From the various tests done on the contents of exh P13, PW1 concluded that the amount of Methamphetamine found there from was 75.24% after allowing a margin of error of 0.94%. The net weight of Methamphetamine found was 3.79g. [31] 30 Hence the total combined weight of Methamphetamine found was 152.43g, the amount mentioned in the charge against the accused. [32] 31 It is of interest to note that PW1 gave evidence that the time taken to undertake quantitative analysis of the 24 replicate samples was 16 working hours. This is not taking into account that the reagent and the machines Gas Chromatography Flame Ionic Detector may not be ready and in good order for it requires maintenance once the replicate samples exceeds 100. [33] 32 When cross examined, PW1 disagreed with the learned counsel for the accused that the amount and weight of samples used to determine that the crystalline substance contained methamphetamine was insufficient. PW1 stood firmly on his position that the amount and weight of the representative samples taken at random was clearly sufficient for the purpose of determining whether the drug methamphetamine was found in the homogenized powder. Further it was confirmed by PW1 that the degree of concentration or purity of methamphetamine will not change even if more samples are used. PW1 even went to the extent to state that even if the entire contents of the homogenized powder from the crystalline substance were to be analysed, the degree of concentration or purity of methamphetamine will remain the same. [*313] Analysis and Testing Guidelines for Methamphetamine. [34] 33 PW1 informed this court that the method of testing methamphetamine adopted by him is based on the United Nations Manual entitled: ‘ Recommended Method for Testing Amphetamine and Methamphetamine’. This manual, according to PW1 is accepted and used by all chemists who are working and dealing with Narcotics at the Chemistry Department, throughout Malaysia to test the drug Methamphetamine. [35] 34 It could therefore be observed that what PW1 had done with the crystalline substance found was firstly he weighed it and mixed the contents of exhs P10A, P10B, P10C and P10D together with the help of a Sumeet commercial blender in order to homogenize the powder so that every part would be the same as the others. He applied the three colour tests on random and representative samples of the powder by using three reagents known as Marquis, Simon’s and silver nitrate and found that the homogenized substance contained Methamphetamine Hydrochloride. The fourth test carried out involved the use of Gas Chromatography Mass Spectrometry. The outcome of the analysis using Gas Chromatography Mass Spectrometry confirmed that the homogeneous powder contained Methamphetamine, a type of dangerous drug listed in the First Sch of the DDA. [36] 35 After the existence of the drug Methamphetamine had been confirmed, a

final quantitative test was conducted and this employed the usage of a Gas Chromatography Flame Ionic Detector on 24 replicates random and representative samples. From this test PW1 concluded that the degree of concentration or purity of Methamphetamine was 75.31% after allowing a margin of error of 0.94%. He concluded further that the crystalline substance found in the four clear plastic bags P10A, P10B, P10C and P10D contained a net weight of 148.64g of Methamphetamine. [37] 36 A similar test was done in respect of the contents of the clear plastic bag found in the red paper envelope B1 exh P13 with a conclusion that the net weight of Methamphetamine found therein was 3.79g. Hence the total amount of Methamphetamine under the charge was 152.43g. [38] 37 It is pertinent to re-emphasise here that the chemist, PW1 pointed out that the purpose of blending the white crystallized substance was to make it homogenous, which means, if any part of the powder were to be taken for qualitative or quantitative analysis; it will produce a similar percentage of concentration of Methamphetamine. This is what happened in this instant case. It means therefore that even if less than 24 replicate representative and random samples were employed for analysis, the result would be the same. The converse will also be true in that PW1 gave evidence that even if the entire samples were analysed, the percentage of concentration or purity of Methamphetamine will still be similar. Evidence of other Prosecution Witnesses [39] 38 PW3, Mr Oh Sen Toh works as a Foreman at Hiap Loong Tyre Shop, Penampang Towering Centre, Kota Kinabalu. He testified that on 17 April [*314] 2001 the accused came to his work place to do wheel alignment in respect of his car – Isuzu Invader and not the Suzuki Vitara. After the job was completed he said the accused paid the money and left the premises. PW3 did not see if the accused returned to PW3 ’s work place after doing his wheel alignment and he did not see if the accused brought another car there. He did not see if the accused had taken any other vehicle to his tyre shop. [40] 39 The next prosecution witness was the wife of the accused, PW4, Mdm Liew Chwee Ing, a house wife who has to look after three (3) children. Sometimes she does a bit of selling through ‘direct selling’. She uses the vehicle: Vitara registration number SA 8202 L. The accused bought the vehicle. [41] 40 On 17 April 2001 PW4 used the vehicle at 5.45am to send her child to school and came back at 6.30am during which time the accused was still asleep in their house. When she sent her child to school, the child was seated on the passenger’s seat in front. She did not notice any red plastic bag on the floor of the passenger’s seat. Her child did not complain that there was any red plastic bag there as well. The vehicle was parked outside the house in front of the gate which was always open. She went out for breakfast with the accused at about 9am in the vehicle Vitara. The accused drove and PW4 sat on the passenger’s seat on the left but she did not see any red plastic bag on the floor. They went home at about 12 mid-day and immediately thereafter the accused left the house and used the Vitara. PW4 confirmed that on 17 April 2001 she did not see any red plastic bag on the floor of the Vitara. PW4 also testified that after that she did not use the vehicle Vitara. [42] 41 The last witness for the prosecution was PW5 Chief Inspector Zulfakar bin Abdul Aziz, the Investigating Officer. He testified that on 17 April 2001 PW2 ASP Fisol

came to his office handing over to him the accused and the relevant exhibits: one red plastic bag marked AA dated 17 April 2001 containing a white/blue box with the writing ‘Tape Dispenser’ marked ‘A’. Inside the said box there were four (4) plastic bags each marked A1, A2, A3 and A4. PW5 was also handed one red paper envelope marked ‘B’ containing one plastic bag marked B1. PW5 was also handed one vehicle Suzuki Vitara registration number SA 8202 L together with the keys. Further PW2 also handed over to him the Police Report (‘P20’), Form CID 47 (‘P21’), lists (‘P22’) and all the personal items of the accused, exhs P23, P24, P25, P26, P27, P28. All these items were kept by PW5 under locked cabinet while the accused was sent to the lock up. Only PW5 had the key to the locked cabinet. Photographs of the relevant exhibits were taken before PW5 sent them to the Chemistry Department together with form POL 31 on 19 April 2001. Court’s Finding after the Conclusion of the Case for the Prosecution [43] 42 Both the learned deputy public prosecutor and learned counsel for the accused submitted at the end of the case for the prosecution. Having considered their submissions and after perusing the authorities offered, this court finds that a prima facie case has been made out against the accused on the offence charged and under the provision of s 180(3) of the Criminal [*315] Procedure Code, the accused was called upon to enter his defence. Three alternatives were notified to the accused that he could take in his defence: (i) to testify on oath and subject himself to cross examination;

(ii) to make an unsworn statement from the dock which will not render him liable to be cross examined; (iii) to remain silent. [44] 43 The accused chose to give evidence on oath.

[45] 44 This court will now give the reason why it made a finding that the prosecution has made out a prima facie case against the accused and called upon him to enter his defence. [46] 45 It is obvious that the prosecution’s case was straight forward and was not contradicted. The evidence of PW2 ASP Fisol bin Salleh on what transpired has been accepted by the accused through his learned counsel and this is reflected in his submission at encl 30 which was filed and read in open court. This court therefore accepts as true and accurate, the narration of PW2 on what had happened on 17 April 2001 at 2.30pm. [47] 46 The vehicle Suzuki Vitara SA 8202 L is owned by and registered under the name of the accused. When the police stopped the said vehicle it was the accused who drove the vehicle. According to PW2, the accused was in a state of shock when his driver’s door was opened by PW2 who identified himself as a Police Officer by showing his warrant card. The accused then said ‘Boss kita pergi ke hadapan, kita boleh cerita’. When the accused was asked by PW2 as to what was inside the red plastic bag found on the floor of the front left hand side of the passenger’s seat, he replied: ‘ada sikit barang’. Why did the accused say ‘boss, kita pergi ke hadapan, kita boleh cerita’? Learned defence counsel said that ‘such words uttered in the Malay language can also suggest that the accused intends to bribe the police officer, or that

the accused intends to move his car to a better spot to prevent obstruction’. He also submitted that as there could be many inferences both favourable and unfavourable the one favouring the accused must be adopted. [48] 47 It must be appreciated that the police should know better to avoid unnecessary obstruction. That is the duty of the police and for the accused to suggest that the words ‘boss, kita pergi ke hadapan, kita boleh cerita’ were uttered to prevent obstruction is quite unacceptable to this court. The other alternative inference suggested by learned counsel for the accused that he intends to bribe the police officer may be the unfavourable inference that he is postulating to. Clearly those words impute something more than meets the eyes. [49] 48 The usage of the words ‘ada sikit barang’ by the accused clearly indicate his knowledge of the impugned red plastic bag found at the floor of the vehicle. He was alone, he drives the vehicle and he owns the vehicle. The other person, PW4 Mdm Liew Chwee Ing who has access to the vehicle has got to be excluded from being in the know about the impugned red plastic [*316] bag as she testified that when they went home around 12 noon, the accused drove the vehicle. She was seated at the left hand side of the vehicle on the passenger’s seat. She did not see any red plastic bag on the floor. Soon after that PW4 testified that the accused left the house using the said vehicle. He was stopped by the police at 2.30pm the same day where the police found the impugned red plastic bag containing a white/blue box which in turn contained four clear plastic bags containing a crystalline substance suspected to be Methamphetamine. The police also recovered from the vehicle one red paper envelope inside which was a plastic bag containing a crystalline substance suspected to be Methamphetamine as well. [50] 49 Suffice it to say here that the suspicion that the said crystalline substance was in fact Methamphetamine was confirmed by PW1 following the various tests he carried out. These tests are done in accordance with the United Nations Manual entitled ‘ Recommended Method for Testing Amphetamine & Methamphetamine’ which is being followed by all the chemists working in the Chemistry Department throughout Malaysia. [51] 50 The opinion of PW1 is confined to the elementary nature and identity of the substance. PW1 is essentially an independent expert witness assisting the court to determine the identity of the impugned substance. It is the considered view of this court that Government Chemists who work in the Government’s Chemistry Department are public servants who are obliged to follow certain investigatory methods and procedures for the analysis of drugs as defined by their Department. The procedure followed by PW1 in analyzing the alleged drug is in consonance with the procedure recommended by the United Nations which has been adopted for use by all the chemists working in the Department of Chemistry throughout Malaysia. Further the opinion given by the chemist PW1 is basic as it only involved the identification of the impugned drug. [52] 51 The crystalline substance found had become a homogenized powder and PW1 said in no uncertain terms that even if the entire impugned drug was analysed the outcome will be the same as the outcome from the 24 replicate samples that he analysed. Further unless the opinion of PW1 is inherently so incredible, this court is entitled to accept such opinion at face value as true and accurate unless the defence calls evidence in rebuttal by another expert to contradict PW1 ’s opinion per Mohd Noor Ahmad JCA (as he then was) in K Saravanan a/l S Karuppiah v Public

Prosecutor [2002] 4 CLJ 144 at p 152 (also [2002] 3 MLJ 465), Munusamy v Public Prosecutor [1987] 1 MLJ 492, Supreme Court’s decision. [53] 52 The decision of this court to accept the evidence of PW1 is fortified by the fact that in Public Prosecutor v Tang Kheng Teong & Anor [1997] 3 MLJ 637 Abdul Malek Ahmad JCA (as he then was) said: ‘It was incorrect for the judge to reject the chemist’s evidence for not having complied with the provisions of the Act in conducting the chemical analysis on the drugs recovered. In regard to the evidence of the chemists, unless the evidence is so inherently incredible that no reasonable person can believe it to be true, it should be accepted as prima facie evidence’. [*317] [54] 53 The same sentiments have also been expressed in the Court of Appeal decision in Kesavan a/l Petchayo @ Balakrishnan v Public Prosecutor [2003] 2 MLJ 209, [2003] 1 CLJ 846 where Gopal Sri Ram JCA at p 214 said ‘The evidence sufficiently establishes beyond a reasonable doubt that for the purpose of analysis, a sufficient sample was taken of the substance in question in order to establish that it was indeed heroin and monoacetylmorphine, respectively’. [55] 54 Learned counsel for the accused offered Loo Kia Meng v Public Prosecutor [2000] 3 MLJ 664, [2000] 3 CLJ 653 as the authority to say that the chemist has failed to analyse samples of at least 10% of the substance contained in the receptacles before concluding that it was drugs. With great respect this court is of the considered view that Loo Kia Meng is distinguishable from this instant case. In Loo Kia Meng the appellant was convicted on 15 August 1995 for an offence of trafficking in 4,105g of cannabis. In our instant case the drug found is Methamphetamine. Secondly the Court of Appeal held in Loo Kia Meng that what the learned judge held was that he found that the appellant was in custody and control of the two packages therefore the presumption under s 37(d) of the DDA applies and he was deemed to be in possession of the cannabis. Having made that finding he then invoked the presumption under s 37(da) of the DDA. In other words he used the presumption of possession under s 37(d) of the DDA to invoke the presumption of trafficking under s 37(da) of the DDA. Therefore Shaik Daud Ismail JCA held that the learned judge fell into the same error as the learned judge in Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273, [1998] 2 CLJ 170. This is not so in this instant case. Further in Loo Kia Meng the Court of Appeal held that pursuant to s 37(j) of the DDA, the chemist is required to give the actual amount or the actual weight of the samples taken in order to comply with that section. In our instant case what needs to be appreciated is that the crystalline substance found in the four transparent plastic bags was mixed and blended turning the contents into a homogenous powder. The actual weight of the content of each of the plastic bags had been identified and determined and given by the chemist to this court. Lastly what was more significant is that the chemist took representative samples at random and has testified positively that the result of his tests showed that the crystalline substance was Methamphetamine. The chemist went on to say that since the crystalline substance had been homogenized the amount tested is sufficient to determine that the drug was Methamphetamine. It was also the considered view of the chemist that the purpose of blending the white crystallized substance is to make it homogenous, which means, if any part of the powder were to be taken for qualitative or quantitative analysis, it will produce a similar percentage of concentration or purity. The chemist added even if the entire content was tested, the purity of the Methamphetamine found will be similar and the outcome will be the same. It is clear that the chemist in this instant case has carried out a detailed

analysis of the impugned substance and he testified positively that the result of his tests showed clearly that the impugned substance is Methamphetamine, a drug listed in the First Sch of the DDA. [*318] [56] 55 This court is therefore satisfied that the evidence given by the chemist was satisfactory and cannot be faulted. [57] 56 The question before this court is whether on the evidence adduced thus far by the prosecution, it had proven its case against the accused on a prima facie basis. [58] 57 There exists a plethora of authorities on the meaning of a prima facie case. Quoting Vincent Ng J in Public Prosecutor v Ong Cheng Heong [1998] 6 MLJ 678, [1998] 4 CLJ 209, ‘ “Prima facie” means on the face of it or at first glance’ ... . Prima facie case (is) “A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive”. It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected’ at p 691. [59] 58 Based on what has been discussed above, it was therefore the finding of this court that the prosecution had made out a prima facie case against the accused which if it remains unrebutted would warrant a conviction. This finding is based on an objective assessment of the evidence adduced in this court. The accused was therefore called upon to enter his defence. As indicated earlier, the accused chose to give evidence under oath. Accused’s Defence [60] 59 The accused is a 43 year old man and worked in the construction business as a sub-contractor. He is married to PW4 and they have three children. Giving evidence on oath, the accused told the court that on 17 April 2001, driving the vehicle Vitara, he arrived at Hiap Loong workshop around 1pm to get the tyre alignment done. It was during the lunch break and while waiting he received a call from one, ‘Lau Yeh’, who asked the accused to see him regarding some money matters. Without doing the repair work, the accused drove the vehicle Vitara to Jalan Lintas near the Taman Ria junction to meet ‘Lau Yeh’. [61] 60 He saw ‘Lau Yeh’ standing beside a small motorbike: blue coloured Suzuki and observed that he was hugging his helmet with both hands against his stomach with the hollow side facing his stomach. As ‘Lau Yeh’ entered his car on the left hand side of the passenger’s seat, he (‘Lau Yeh’) placed his helmet on the floor of the vehicle with the hollow part of the helmet facing on to the floor of the front passenger’s seat. [62] 61 When ‘Lau Yeh’ entered the car he was sweating and smoking. Though he was talking normally he looked nervous. He was never like that before and the accused suggested that it may be because ‘Lau Yeh’ had been waiting too long under the sun or that he was tired. ‘Lau Yeh’ demanded for payment of money that the accused owed him.

[*319] [63] 62 The accused also testified that he had borrowed twice from ‘Lau Yeh’ who is also a money lender (Ah Long). On the first occasion he borrowed RM50,000 and had settled the same. On the second occasion, he borrowed RM150,000 and had paid RM50,000 and the outstanding sum payable by the accused to ‘Lau Yeh’ was RM100,000. [64] 63 The accused testified that ‘Lau Yeh’ was in his car talking for about 20 minutes and while inside he took the whole tissue box from the dash board and put it on his lap to wipe out his sweat. [65] 64 When ‘Lau Yeh’ left the vehicle, the accused proceeded to Inanam to visit his site. While driving in front of Choon Nyen Fatt Supermarket Sdn Bhd, Lorong Inanam Point 2, Inanam his vehicle was stopped by a group of police officers led by PW2, who conducted a search in the accused’s vehicle. PW2 found a red plastic bag (exh P7) on the floor of the front passenger’s seat. When exh P7 was opened, PW2 found one blue/white box and inside it PW2 found four clear plastics containing the offending drugs. [66] 65 The accused testified that he had no prior knowledge of P7 or its content except after it being pointed out by the police during the search. He told the court that was the first time he saw it. He further told the police officers that the impugned P7 was not his and that he did not know who it belonged to. The accused alleged that one of the police officers threw the package to the accused and he was asked to keep quiet. The accused spoke to one of them to ask him whether they can move the car and talk later because he did not want his vehicle to block the traffic. The police thereafter pushed the accused’s vehicle to the side and checked his vehicle. He was asked to sit at the back of the car as they drove to his house at Foh Sang in Kota Kinabalu. In the car, the accused testified that he informed them that some one had earlier on left his car but this was ignored. After checking his house, the accused was brought to Karamunsing (the police station) and detained. [67] 66 As to the impugned drug found in the red envelope (exh P11) at the dashboard inside the vehicle, the accused testified he had no knowledge of it and its contents and claimed that it was shown to him for the first time at the Police Station at Karamunsing on 18 April 2001 by a police officer. He testified that the said police officer told him that P11 was found on the dash board of the vehicle, placed under a tissue box. [68] 67 The second defence witness was ASP Tan Guan Chai (‘DW2 ’), the then Head of the Narcotics Departments, at Ibu Pejabat Daerah at Karamunsing, Kota Kinabalu. DW2 testified that he was the one who took the cautioned statement of the accused in Mandarin (exh D1) on 19 April 2001 at 2.30pm two days after the date of arrest. The accused in exhibit D1 absolutely denied any knowledge of the offending drugs found in the vehicle. He also mentioned to the police officers about ‘Lau Yeh’ the person whom he last met and who had entered and sat in the front passenger seat of his vehicle just before his arrest on 17 April 2001. [*320] [69] 68 The third and last defence witness was Yap Sing Keong (‘DW3 ’). DW3 is the nephew of the accused in that the accused is the younger brother of his father.

DW3 manages a motorcycle shop at Likas. He also testified that before his arrest, the accused did mention to him that he owed money from someone and approached DW3 for help as he needed to pay the debt. As the amount was rather large, DW3 could not afford it and could not assist. The accused had mentioned to DW3 about the ‘Ah Long’ (money lender) from whom he owed money. [70] 69 DW3 also testified that when he met the accused three to four times at the prison and the accused requested him to look for ‘Lau Yeh’. PW3 tried to but was unsuccessful. [71] 70 DW3 testified that ‘Lau Yeh’ was his regular customer for a period of three to four years, and ‘Lau Yeh’ regularly came to his shop to repair his motorcycle. Despite that, DW3 could not remember the registration plate of ‘Lau Yeh’s motorcycle. Evaluation of the Evidence of Defence Witnesses [72] 71 In the examination in chief, the accused, DW1 did testify that he owns two vehicles, one Isuzu Invader and a Suzuki Vitara. Though he spoke about the loss of the keys for the Vitara, the confusion, contradictions he created and caused must have resulted in the learned counsel for the DW1 in rightfully not pursuing this point in his final submission. Likewise, this court can see no reason to deliberate on it save to note the credibility of the accused. [73] 72 What is perhaps pertinent to record is that though PW3 saw the accused coming to repair the alignment in respect of the Isuzu Invader he did not see the accused returning to the Tyre shop with the Suzuki Vitara (‘Vitara’). [74] 73 Any suggestion to say that someone may have put the impugned drug inside the Vitara after the accused allegedly went to Hiap Loong Tyre shop would not hold water as during cross examination the accused said when he entered the Vitara after receiving the phone call from ‘Lau Yeh’ he did not see any red plastic bag or anything on the passenger’s seat. Therefore at the time he went into the Vitara heading for Inanam at Hiap Loong Tyre Shop (that is if the accused did go there) exhs P7 and P8 were not at the respective places as found by the police. It also strengthened the testimony of PW4 that when she first used the Vitara she did not notice any red plastic bag, neither did her daughter see anything. This remains true as when the accused sent PW4 back at about 12 noon, PW4 did not see any plastic bag on the floor of passenger’s front seat of the Vitara. By one stroke, this evidence ruled out PW4 may have put the drug inside the Vitara and rules out someone planting the drug when the accused was inside the office of Hiap Loong Tyre shop to read newspapers as he alleged. [*321] The Existence or Non-existence of ‘Lau Yeh’ [75] 74 In his testimony, the accused said he met ‘Lau Yeh’ and observed in great detail the manner in which he held his helmet whilst waiting for the accused. The accused also testified to the court that ‘Lau Yeh’ hugged his helmet with both hands against his stomach with the hollow side facing his stomach. Further, the accused observed the manner the helmet was placed on the floor of the vehicle. But despite being so observant, after ‘Lau Yeh’ left his vehicle the accused did not see any red plastic bag on the floor of passenger’s seat. During cross examination, the accused

testified and marked in a photograph produced in the court the location of the exhibit P7 and it is obvious that there was nothing blocking his vision! The fact that the plastic bag was red in colour would make it easily noticeable. Upon being stopped at Inanam by PW2 and his men, the accused said in his cautioned statement (exh D1) from line 32 to 44: ‘Apabila saya berada di kawasan berdekatan dengan Maybank (sic) Finance, saya telah ditahan oleh beberapa orang yang tidak dikenali. Mereka memperkenalkan diri mereka sebagai polis dan ingin membuat pemeriksaan. Mereka terus buka pintu kereta saya membuat pemeriksaan dan terus juga menjumpai satu beg plastik warna merah yang berisi satu kotak warna biru/putih yang mengandungi beberapa bungkusan plastik berisi bahan-bahan hablur putih di kiri tempat duduk saya.’ (Emphasis added.) [76] 75 It is obvious therefore that exh P7 was there all along when the accused was on the way to Inanam because in his evidence as well as his cautioned statement, the accused said after ‘Lau Yeh’ left his car, he went straight to Inanam. This is another instance when the accused chose not to tell the truth. [77] 76 Another instance is that during examination in chief the accused testified that ‘Lau Yeh’ was in his car for 20 minutes and when he was cross examined he said ‘Lau Yeh’ was with him for 10 minutes. [78] 77 The accused also failed to testify if he did or did not say: ‘ada sikit barang’, when he was asked by PW2 upon the discovery of P7 in his vehicle. [79] 78 The accused also denied knowledge of the existence of exh P11 and said in his evidence in chief that he was first shown P11 on 18 April 2001, one day after his arrest at the Karamunsing Police Station. However in his cautioned statement (D1) at p 4 line 62 he was asked thus: ‘Ada apa-apa barang yang lain dijumpai selain dari bungkusan barang yang terletak di bawah tempat duduk penumpang itu?’ [80] His reply from line 65 of p 4 to line 3 of p 5 (D1) which says:

‘Ada suatu bungkusan yang kecil lagi dijumpai di atas ‘Dashboard’. Saya bertanya lagi kepada polis yang membuat pemeriksaan apa itu barang.’ (Emphasis added.) [81] 79 The reply given here indicates clearly that P11 was found when the police searched the vehicle and not the day following the arrest. [*322] [82] 80 So much about the impugned P7 and P11. What about ‘Lau Yeh’? Does he exist or not? It was said that ‘Lau Yeh’ was a ‘loan shark’ and the accused still owed him RM100,000. ‘Lau Yeh’ was also the person the accused was alleged to be with when the accused lost his Vitara key. He was also the person who came into the vehicle of the accused when the accused was on the way to Inanam. He was nervous and sweating and sat on the front passenger’s seat and smoking at the same time. It was ‘Lau Yeh’ who pressed the accused for the payment of money owed. The accused

knew him for one year plus but his name was not known to the accused. [83] 81 Despite the fact that the accused has not paid the amount of RM100,000 the accused gave evidence that his wife and family has never been harassed by ‘Lau Yeh’ and said that his wife told him that nobody ever came for the debt. The loan given by the ‘loan shark’ ‘Lau Yeh’ is interest free. Furthermore there was no loan agreement and no security for the loan. [84] 82 The accused also claimed that ‘Lau Yeh’ is in Kuala Lumpur but the police were never notified about this fact. But why was ‘Lau Yeh’ not produced in court? [85] 83 As regards the motorcycle plate number of SA 4019 allegedly owned by ‘Lau Yeh’ as mentioned in his cautioned statement, the accused said he was not sure of the number. When told by the learned deputy public prosecutor that SA 4019 is the registered number of a lorry registered in the name of Lembaga Letrik Sabah, the accused said that he was not sure if the ending alphabet was A, B or C and said that it is the combination of the above mentioned four numbers. [86] 84 The testimony of DW3 about ‘Lau Yeh’ was not helpful either. DW3 testified that ‘Lau Yeh’ was his regular customer for the last three to four years. In fact six months after the accused was arrested ‘Lau Yeh’ still came to see DW3 to repair his motorcycle. Despite being a regular customer, DW3 never knew the real name of ‘Lau Yeh’. Further, DW3 testified that he does not know the motorcycle registration plate number of ‘Lau Yeh’!!! [87] 85 What is obvious from the testimonies of the accused and DW3 is that though they both know ‘Lau Yeh’, his real name is not known. ‘Lau Yeh’ is a ‘loan shark’ yet there is no interest on the loan of RM100,000. More surprising is that there is no loan agreement and neither was there any security offered for the loan. Both witnesses also failed to provide the place where ‘Lau Yeh’ could be found. The accused said that ‘Lau Yeh’ is in Kuala Lumpur and DW3 said that ‘Lau Yeh’ is from Seremban. That being the case, why was ‘Lau Yeh’ not called by them to give evidence in court if ‘Lau Yeh’ really existed. Even the simple thing like the registration plate number of ‘Lau Yeh’s’ motorcycle could not be provided by them. The number given by the accused was the registration number of Lembaga Letrik Sabah. In the case of DW3, despite the fact that ‘Lau Yeh’ is a regular client of his for a period of three to four years, he does not know the plate number either. DW3 is involved in the ‘business’ of motorcycles as his business is the selling of motorcycles. It is quite incredible, despite the industry or business that he is in and the [*323] fact that he claims ‘Lau Yeh’ to be his regular client for three to four years, that DW3 cannot remember the registration number of ‘Lau Yeh’s’ motorcycle if ‘Lau Yeh’ does exist and is not a fictitious character introduced to create a plausible story in order to escape punishment. It is the view of this court therefore that ‘Lau Yeh’ is only a fictitious character. [88] 86 On the testimony of DW3, this court has to be cautious as the deputy public prosecutor told this court that DW3 was inside this court following the proceedings during the prosecution stage. He is also an interested party as the accused is his uncle. [89] 87 This court is not satisfied with the manner in which both the accused and DW3 answered the questions put to them by the learned deputy. Their demeanour and their way of responding to the questions posed by the learned deputy give rise to

the doubt that this court has as to their credibility. This court has great reservations as to whether both the accused and DW3 are truthful witnesses. Was the Accused in Possession of the Impugned Drug? [90] 88 In the cautioned statement (D1) of the accused that he made on 19 April 2001, two days after he was arrested, he said of the police team led by PW2, after his car was stopped at Inanam: ‘Mereka terus buka pintu kereta saya membuat pemeriksaan dan terus menjumpai satu beg plastik warna merah mengandungi beberapa paket bungkusan plastik berisi bahan-bahan hablur putih di tepi tempat duduk penumpang di sebelah kiri tempat duduk saya’. (Emphasis added.) [91] 89 At p 4 line 65 and p 5 lines 1 to 3 of D1 the accused said: ‘ Ada suatu bungkusan yang kecil lagi dijumpai di atas “Dashboard” ’. [92] 90 This shows that when the vehicle in which the accused was driving was stopped, the impugned drug was in his vehicle. He was alone in control of the car. [93] 91 The accused wife (‘PW4 ’) who had earlier on used the vehicle testified that when she was sent home at 12 noon by the accused using this vehicle, she said she sat on the passenger’s left front seat. She did not see any red plastic bag on the floor of the vehicle. The accused left the house in the same car, going as he claimed to the Hiap Loong Tyre Shop at Penampang Towering Centre, Kota Kinabalu. The accused also gave evidence that when he left the tyre shop responding to the call of ‘Lau Yeh’, he did not see anything on or near the passenger’s seat on the front left hand side of the vehicle. From there he allegedly went to see ‘Lau Yeh’. After about 20 minutes with ‘Lau Yeh’ he headed for Inanam where he was stopped by PW2. [94] 92 This court is well aware that the following ingredients must be proved beyond any reasonable doubt by the prosecution: (a) (i) The accused was in possession of the drug in that: he had some form of custody and control;

(ii) he had knowledge of the drug. (b) The said drug is a dangerous drug under DDA and the weight of such drug should be 50g or more.

[95] 93 On the facts of the case and based on the arguments outlined above, this court agrees with the learned deputy public prosecutor that the accused had physical control of the impugned drugs. [96] 94 This court has also examined the authorities at encll 31, 33 and other supplementary authorities given by learned counsel for the accused which includes, inter alia Chan Pean Leon v Public Prosecutor [1956] MLJ 237 at p 239, Leow Nghee Lim v Reg [1956] MLJ 28 at p 29 and Tong Peng Hong v Public Prosecutor [1955] MLJ 232. In Wong Nam Loi v Public Prosecutor [1997] 3 MLJ 795, Shaik Daud JCA (as he then was) said ‘In most cases knowledge cannot be adduced by direct or tangible evidence but only by inference from the surrounding circumstances’. It can readily be recognized that in drug cases it is difficult to get direct evidence. The modus operandi of drug traffickers has become more sophisticated but let us examine

the conduct of the accused. The evidence established is that the accused was seen to be driving slowly in a busy street at Inanam. When the accused was stopped at Inanam, he was in a state of shock. He asked PW2: ‘Boss, kita pergi ke hadapan, kita boleh cerita’ and when the impugned drug was found the accused was asked as to what it was, he was heard to utter the words ‘Ada sikit barang’. It is the view of this court that from the above mentioned surrounding circumstances the irresistible inference is that the accused must have had knowledge of the impugned drugs inside the red plastic bag as well as the red paper envelope at the dashboard on the left front side of the vehicle. [97] 95 Applying the facts of this case, which has been discussed earlier, on the authorities offered, this court can only make one finding. This court finds that the accused has possession of the impugned drug in the vehicle Suzuki Vitara. Chain of Evidence [98] 96 It is the considered view of this court there was no break in the chain of evidence from the time the arrest was made on the accused until the alleged methamphetamine reached the chemist and lastly produced in this court. Amount of the Drug Methamphetamine Found [99] 97 PW1, the chemist, has testified that following the tests that he conducted based on the existing Recommended Method for Testing Amphetamine and Methamphetamine by the United Nations, the impugned drug found in the vehicle was Methamphetamine. No evidence was adduced by the defence to dispute this finding. The defence did not call any other chemist or other [*324] expert to challenge the procedure and method used by PW1 in analyzing Methamphetamine. The net weight of Methamphetamine found in exhs P10A, P10B, P10C and P10D was 148.64g. This figure of 148.64g exceeds the ‘50g’ envisaged under s 37(da)(xvi) of the DDA. On this figure alone, the accused shall be presumed until the contrary is proved, to be trafficking in the said drug. The contrary was never proved. [100] 98 If the figures of 148.64g were to be added with the contents of P11 which PW1 gave as 3.79g of Methamphetamine, then the grand total of Methamphetamine found is 152.43g, the amount mentioned in the charge. [101] 99 After careful examination and evaluation of the evidence in its entirety, and after perusal of all the authorities filed into this court, there is overwhelming evidence to show that the prosecution has proved its case beyond any reasonable doubt and that the defence failed to raise any reasonable doubt on the prosecution case. [102] 100 This court therefore finds that the accused is guilty of the offence charged and hereby convicts him. The sentence under s 39B(2) of the DDA is mandatory. This court therefore sentences him to death. Pursuant to s 277 of the Criminal Procedure Code, this court directs that he be hanged by the neck till he is dead. [103] 101 It is further ordered that the exhibits which are in police custody shall remain there for safe keeping until after the final disposal of appeal to the highest appellate body and may only be dealt with in accordance with the law after the final decision of the highest appellate body has been made.

ORDER: Accused found guilty, convicted of trafficking and death sentence imposed.. LOAD-DATE: 05/21/2008
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© 2008 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal PDF Print Format PUBLIC PROSECUTOR v REZA MOHD SHAH BIN AHMAD SHAH [2002] 4 MLJ 13 CRIMINAL TRIAL NO 45–10 OF 2001 HIGH COURT (KUALA LUMPUR) DECIDED-DATE-1: 27 AUGUST 2002 AUGUSTINE PAUL J CATCHWORDS: Criminal Law - Dangerous drugs - Trafficking - Presumption - Possession of dangerous drugs - Whether there was evidence to show that the accused had possession of the drugs by merely holding a bag containing the drugs - Whether prosecution had made out a prima facie case and proved its case beyond reasonable doubt against the accused - Dangerous Drugs Act 1952 s 37(da) HEADNOTES: The accused was charged with an offence of trafficking in dangerous drugs. He claimed trial to the charge. Briefly stated, the facts of the case was that on 14 August 2000, Inspector Mohamad Alpiyang bin Ali (‘PW2 ’) led a party of police to a reserve land near the railway track at Pantai Dalam, Kuala Lumpur. They stationed themselves near some squatter houses there. PW2 said that they observed the accused walking suspiciously from the railway track towards them. He saw the accused carrying a plastic bag (‘exh P3’) in his right hand. The accused was about ten metres away at that time. There was no one else there. The accused tried to enter the reserve land through a hole in a fence, which separated the reserve land from the railway track. PW2 shouted ‘Police’ at the accused that was then about three metres away from him. The accused ran immediately and threw the bag that he was carrying. PW2 took possession of the bag from where it was thrown. The accused contended that mere holding of exh P3 did not mean that he was trafficking in it. In any event, the accused said that he was not in possession of exh P3 as it had been put to PW2 that the accused was not carrying it. He also said that the credibility of PW2 was questionable, as he had said that he had initialled the exhibits before handing them to PW5 while PW5 had said that the exhibits were initialled in his presence. Held, convicting the accused: (1) In his evidence, PW2 said that he handed over the exhibits to PW5 after he had placed markings on them. On the other hand, PW5 said that the exhibits were marked by PW2 in his presence. The court agreed that there was a contradiction. However, it did not cast any doubt in the

chain of custody of the exhibits from the time they were seized until they were produced in court. What was produced in court was what was seized at the scene. In fact, none of the witnesses was cross-examined on the issue. In the circumstances, the difference in the evidence in this area was not material and did not affect the substance of the testimony of PW2 (see p 18D –F). (2) The court is entitled to infer knowledge on the part of a person on the assumption that such a person has the ordinary understanding expected of him. The court is not concerned with the knowledge [*14] of a reasonable man but with reasonable inferences to be drawn from a situation. There are many circumstances from which knowledge can be inferred. One instance is the inference to be drawn from the act of a person in absconding or fleeing from the scene of a crime (see p 20B –C). (3) The fact that the accused was carrying exh P3 with its contents followed by the speed at which he ran and threw it upon being confronted showed that there was a clear nexus between his conduct and the offence in question. He wanted to part possession with what constituted the offence. It was a clear indication of his guilty mind. This was sufficient to infer that the accused had knowledge of the existence of the dangerous drugs in exh P3. As the cannabis weighed more than 200g, the presumption contained in s 37(da) of the Dangerous Drugs Act 1952 must therefore be invoked. The accused was thus presumed to have been trafficking in the drugs. This meant that the prosecution had made out a prime facie case against the accused (see pp 23B –C, 24G). (4) In the circumstances and judged against the background of the facts of the case, the court was unable to accept the defence advanced by the accused. He had therefore not succeeded in rebutting the presumption raised against him. Neither had he raised any reasonable doubt to show that he was not in possession of exh P3 at the material time. The court was therefore satisfied that the prosecution had proved its case against the accused beyond reasonable doubt. Accordingly, the court found him guilty and sentenced him to death (see pp 25H –26A). Bahasa Malaysia summary Tertuduh dipertuduh dengan kesalahan mengedar dadah berbahaya. Dia menuntut perbicaraan terhadap pertuduhan. Secara ringkas, fakta kes adalah bahawa pada 14 Ogos 2000, Inspektor Mohamad Alpiyang bin Ali (‘SP2 ’) telah mengetuai sepasukan polis ke tanah rizab berhampiran lintasan jalan keretapi di Pantai Dalam, Kuala Lumpur. Mereka mengambil kedudukan berhampiran beberapa rumah setinggan di sana. SP2 berkata bahawa mereka memerhati tertuduh berjalan dalam cara yang membangkit rasa syak wasangka dari lintasan jalan keretapi menuju ke arah mereka. Beliau nampak tertuduh membawa suatu beg plastik (‘eksh P3’) dengan tangan kanannya. Tertuduh berada kira-kira sepuluh meter darinya pada masa itu. Tiada orang lain di sana. Tertuduh cuba memasuki tanah rizab melalui satu lubang dalam pagar, yang mengasingkan tanah rizab daripada lintasan jalan keretapi. SP2 menjerit ‘Polis’ kepada tertuduh yang berada kira-kira tiga meter darinya. Tertuduh terus lari dan mencampak beg yang dibawanya. SP2 memperolehi beg itu dari tempat ia dibuang. Tertuduh berhujah bahawa memegang eksh P3 semata-mata tidak bermakna bahawa ia mengedarnya. Walau [*15] bagaimanapun, tertuduh berkata bahawa ia tidak memiliki eksh P3 kerana ia dikemukakan kepada SP2 bahawa tertuduh tidak membawanya. Ia juga berkata bahawa kebolehpercayaan SP2 diragukan, kerana ia telah mengatakan bahawa dialah orang yang menanda dengan

nama singkatan nama sendiri ekshibit-ekshibit sebelum menyerahkannya kepada SP5 manakala SP5 berkata bahawa ekshibit-ekshibit tersebut telah ditanda dengan singkatan nama dalam kehadirannya. Diputuskan, menyabitkan tertuduh: (1) Dalam keterangannya, SP2 berkata bahawa beliau telah menyerah ekshibit-ekshibit kepada SP5 setelah beliau meletak tanda-tanda pada mereka. Sebaliknya SP5 berkata bahawa ekshibit-ekshibit telah ditanda oleh SP2 dalam kehadirannya. Mahkamah bersetuju bahawa ini merupakan satu percanggahan. Namun demikian, ia tidak mewujudkan apa-apa keraguan dalam rangkai kawalan ekshibit dari masa mereka dirampas sehinggalah masa dikemukakan di mahkamah. Apa yang dikemukakan di mahkamah merupakan benda yang dirampas di tempat kejadian. Pada hakikatnya, tidak seorang pun daripada saksi diperiksa balas atas isu ini. Dalam keadaan ini, perbezaan dalam keterangan dalam perkara ini tidak material dan tidak menjejaskan dasar keterangan SP2 (lihat ms 18D –F). (2) Mahkamah berhak membuat inferens pengetahuan terhadap pihak seseorang atas anggapan bahawa orang demikian memiliki kefahaman biasa yang dijangkakan. Mahkamah tidak mengendahkan pengetahuan seorang munasabah tetapi dengan inferens munasabah yang boleh dibuat dari sesuatu keadaan. Pelbagai keadaan wujud dari mana pengetahuan boleh dibuat inferens. Satu contoh adalah inferens yang boleh dibuat dari perbuatan seseorang dalam melarikan diri dari tempat kejadian jenayah (lihat ms 20B –C). (3) Hakikat bahawa tertuduh membawa eksh P3 dengan kandungannya disusuli dengan kelajuan yang mana ia lari dan mencampakkannya apabila bersemuka menunjukkan bahawa wujudnya perkaitan yang nyata di antara kelakuannya dan kesalahan berkenaan. Ia ingin berpisah dengan apa yang membentuk kesalahan tersebut. Ini jelas menunjukkan keadaan salah mindanya. Ini adalah mencukupi untuk membuat inferens bahawa tertuduh tahu tentang kewujudan dadah berbahaya dalam eksh P3. Oleh kerana berat kanabis melebihi 200g, anggapan yang termaktub dalam s 37(da) Akta Dadah Berbahaya 1952 dengan itu mestilah timbul. Justeru itu, tertuduh dianggap telah mengedar dadah itu. Ini bermakna bahawa pihak pendakwaan telah membukti satu kes prima facie terhadap tertuduh (lihat ms 23B –C, 24G). [*16] (4) Dalam keadaan demikian dan dilihat berdasarkan latar belakang fakta-fakta kes, mahkamah tidak boleh menerima pembelaan yang dibentangkan oleh tertuduh. Dengan itu, ia tidak berjaya menyangkal anggapan yang dibangkitkan terhadapnya. Dia tidak juga membangkitkan apa-apa keraguan munasabah untuk menunjukkan bahawa ia tidak memiliki eksh P3 pada masa material. Maka mahkamah puas hati bahawa pihak pendakwaan telah membukti kesnya terhadap tertuduh melampaui keraguan munasabah. Oleh itu, mahkamah mendapatinya bersalah dan menjatuhkan hukuman mati (lihat ms 25H –26A).] Notes For cases on Dangerous Drugs Act 1952 s 37(da), see 4 Mallal’s Digest (4th Ed, 200 Reissue) paras 97–104.

Cases referred to Abdullah Zawawi bin Yusoff v PP [1993] 3 MLJ 1 Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209 Chan Pean Leon v PP [1956] MLJ 237 Chan Kwok Keung & Anor v The Queen [1990] 1 CLJ 411 Director of Public Prosecutions v Wishart Brooks [1974] AC 862 Mohamed Ali v PP [1962] MLJ 230 Neo Koon Cheo v R [1959] MLJ 47 PP v Badrulsham bin Baharom [1988] 2 MLJ 585 PP v Chia Leong Foo [2000] 6 MLJ 705 PP v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 PP v Letchumanan [2000] 4 MLJ 449 PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 PP v Phua Keng Tong [1988] 2 MLJ 279 Legislation referred to Dangerous Drugs Act 1952 s 37(da)

Appeal from Arrest Case No B81–22 of 2000 (Magistrate’s Court, Kuala Lumpur) Azhar bin Abdul Hamid (Deputy Public Prosecutor, AG’s Chambers) for the prosecution. Ameenuddin Ibrahim ( Ameen & Co) for the accused. AUGUSTINE PAUL J:: [1] The accused was charged with an offence of trafficking in dangerous drugs in the following terms: Bahawa kamu pada 14 Ogos 2000 jam lebih kurang 12.15 tengahari, di kawasan tanah rezab jalan keretapi, Jalan Pantai Dalam, Brickfields, Kuala Lumpur, Wilayah Persekutuan telah mengedar dadah berbahaya iaitu 795.3g kanabis dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s 39B(2) Akta yang sama. [*17] [2] He claimed trial to the charge. Briefly stated, the facts of the case are that on 14 August 2000, Inspector Mohamad Alpiyang bin Ali (‘PW2 ’) led a party of police officers consisting of detectives Abdul Halim bin Hj Man, Razak bin Abdul Majid and Manokaran to a reserve land near the railway track at Pantai Dalam, Kuala Lumpur. They stationed themselves in the vicinity of some squatter houses there. PW2 said that they observed the accused walking suspiciously from the railway track towards them. He saw the accused carrying a plastic bag (‘exh P3’) in his right hand. The

accused was about ten metres away at that time. There was no one else there. The accused tried to enter the reserve land through a hole in a fence which separated the reserve land from the railway track. PW2 shouted ‘Police’ at the accused who was then about three metres away from him. The accused ran immediately and threw the bag that he was carrying. PW2 took possession of the bag from where it was thrown. He said that he is sure that it is the bag that the accused threw. Detective Abdul Halim bin Hj Man chased the accused, arrested him and brought him to PW2. PW2 opened the bag. As he then said: Hasil pemeriksaan beg plastik itu yang saya jalankan di dalamnya terdapat dua bungkusan keratan akhbar. Setiap satu bungkusan dibungkus dengan tiga helaian keratan akhbar. Di dalamnya terdapat satu bungkusan plastik yang berisi tumbuhan-tumbuhan kering yang saya syaki dadah ganja. Saya telah mengarahkan Det/Sjn Halim untuk menggari suspek dan jalankan pemeriksaan ke atas badannya. Tiada barang salah lain yang dijumpai. [3] The accused and the exhibits were then brought to the Brickfields Police Station. The two packets containing what was suspected to be dangerous drugs were marked as exhs P6 and P7. In his cross-examination, PW2 disagreed that the accused was not carrying exh P3. He also denied that he did not make any observation as testified by him. He then said: Semasa mengenalkan diri sebagai polis, saya berada di kawasan sampah yang terbakar. Saya setuju ada banyak sampah di tempat itu. Apabila OKT hendak melarikan diri beliau terus melepaskan beg plastik tersebut. Saya tidak setuju saya tidak boleh nampak OKT lepaskan beg plastik. OKT membuang beg plastik di tepi pagar. Tidak benar OKT ditangkap oleh Sjn Halim dan selepas ditangkap dibawa ke tempat itu untuk cari sesuatu. Tidak benar OKT dipukul oleh Sjn Halim. Saya tidak setuju OKT tidak berlari dan tidak buang beg plastik. [4] In his re-examination PW2 said: Apabila saya nampak tertuduh melepaskan beg plastik itu pandangan saya tidak terlindung oleh pagar atau pun semak. (Saksi dirujuk kepada ID10A) Pandangan saya dari sini ke landasan keretapi tidak terlindung. Tidak ada tandas di kawasan itu. Sjn Halim tangkap OKT dalam kawasan E di ID8. OKT tiada dipukul. [5] Chong Yong Kiong (‘PW4 ’) is a chemist attached to the Chemistry Department, Petaling Jaya. He analyzed the contents of exhs P6 and P7 and found them to contain 795.3g of cannabis as defined in s 2 of the Dangerous Drugs Act 1952. Inspector Benedictson Avina ak Jekes (‘PW5 ’) and [*18] Inspector R Azizan bin Ibrahim (‘PW1 ’) testified on the custody of the exhibits after they were handed over to them. [6] In his submission at the close of the case for the prosecution, learned counsel for the accused contended that merely because the accused was holding exh P3 does not mean that he was trafficking in it. In any event, he said, the accused was not in possession of exh P3 as it had been put to PW2 that the accused was not carrying it. He also said that the credibility of PW2 is questionable as he had said that he had initialled the exhibits before handing them to PW5 while PW5 had said that they were

initialled in his presence. He also said that the direction from which the accused allegedly came meant that PW2 could not have seen him clearly because of the undergrowth. In his submission, the learned deputy public prosecutor said that the contradiction with regard to the marking of the exhibits is not material. He said that the fact the accused was carrying exh P3 for some distance meant that he had custody of it. The accused’s knowledge of the contents of exh P3 is established by the acts of the accused in dropping it and running away. Hence, the learned deputy public prosecutor said, there is direct evidence of possession. He then said that as the cannabis weighed more than 200g, the presumption of trafficking is triggered. [7] I shall first deal with the credibility of PW2 in relation to the different points of time at which he had initialled the exhibits. In his evidence, PW2 said that he handed over the exhibits to PW5 after he had placed markings on them. On the other hand, PW5 said that the exhibits were marked by PW2 in his presence. I agree that this is a contradiction. But it does not cast any doubt in the chain of custody of the exhibits from the time they were seized till they were produced in court. What was produced in court is what was seized at the scene. As a matter of fact none of the witnesses were cross-examined on this issue. In the circumstances, it is my view that the difference in the evidence in this area is not material and does not affect the substance of the testimony of PW2. The submission by learned counsel that the accused was not in possession of exh P3 as it had been put to PW2 that the accused was not carrying it cannot be sustained. As I said in Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 121: A suggestion in cross-examination can only be indicative of the case put forward or the stand taken by the party on whose behalf the cross-examination is being conducted, but to no extent whatsoever can it be a substitute for evidence if it is clearly repudiated by the witness to whom it is made. In this regard, it was observed in Emperor v Karimuddi Sheikh 1932 AIR Cal 375: ‘Mere suggestions by a pleader or advocate for the accused do not amount to evidence of the fact suggested, unless they are either partly or wholly accepted by the witness for the prosecution.’ [8] As PW2 had denied the suggestion put to him, it cannot be considered as evidence at this stage. It is only an indication of the defence to be advanced by the accused. The further submission that PW2 could not have seen the accused clearly is negatived by his evidence that he did in fact see the accused clearly. In the circumstances, I am unable to hold that the credibility of PW2 is questionable. On the contrary, his evidence is credible. [*19] [9] It is now appropriate to consider whether the prosecution had made out a prime facie case against the accused. On the facts of this case, the prosecution must establish that the accused was in possession of the dangerous drugs before the issue of trafficking in them can arise for consideration. In order to prove possession, the prosecution must show that the accused had custody or control of the dangerous drugs and that he had the required knowledge of the thing possessed. Custody or control can be proved by direct evidence or by drawing inferences from proved facts. As I said in Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705 in reliance on cases such as Chan Pean Leon v Public Prosecutor [1956] MLJ 237, Public

Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 and Public Prosecutor v Phua Keng Tong [1988] 2 MLJ 279, proof of knowledge is very often a matter of inference. The inference can be drawn from proved facts or as provided by law. In Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705, I expressed the view that every effort must be made to prove knowledge by direct evidence before resort can be had to a presumption provided by law. In support, I refer to Mohamed Ali v Public Prosecutor [1962] MLJ 230 where Ong J (as he then was) said at p 232: Presumptions of fact must not be drawn automatically, or as it were, by rule of thumb, without first considering whether in the circumstances of each particular case there were adequate grounds to justify any presumption being raised. Even, with regard to presumptions of law, Devlin LJ said recently in Berry v British Transport Commission [1961] 3 WLR 450, 463: ‘ … Presumptions of law ought to be used only where their use is strictly necessary for the ends of justice. They are inherently undesirable — in the sense that ‘estoppels are odious’, and the ‘ doctrine’ should never be applied without a necessity for it’; per Bramwell LJ Baxendale v Bennett (1878) 3 QBD 525, at p 529 — because they prevent the court from ascertaining the truth, which should be the prime object of a judicial investigation, and because if they are allowed to multiply to excess, the law will become divorced from reality and will live among fantasies of its own.’ [10] With regard to proof of knowledge from facts that have been established, I consider it necessary to repeat what Thean J (as he then was) said in Public Prosecutor v Phua Keng Tong [1986] 2 MLJ 279 at p 286: However, in this case, like in many others, proof of knowledge or belief on the part of an accused is a matter of inference from facts. In the case of RCA Corp v Custom Cleared Sales Pty Ltd (1978) FSR 576; 19 ALR 123, the Court of Appeal in New South Wales in dealing with the question of knowledge of infringement of copyright said at p 478, ‘ Except where a party’s own statements or gestures are relied upon, proof of knowledge is always a matter of inference, and the material from which the inference of the existence of actual knowledge can be inferred varies infinitely from case to case.’ And the court further said, at p 579: ‘It seems to us that the principle is more accurately put by saying that a court is entitled to infer knowledge on the part of a particular person on the assumption that such a person has the ordinary understanding expected of persons in his line of business, unless by his or other evidence it is convinced otherwise. In other words, the true position is that the [*20] court is not concerned with the knowledge of a reasonable man but is concerned with reasonable inferences to be drawn from a concrete situation as disclosed in the evidence as it affects the particular person whose knowledge is in issue. In

inferring knowledge, a court is entitled to approach the matter in two stages; where opportunities for knowledge on the part of the particular person are proved and there is nothing to indicate that there are obstacles to the particular person acquiring the relevant knowledge, there is some evidence from which the court can conclude that such person has knowledge.’ [11] Thus, in drawing inferences from proved facts, the court is entitled to infer knowledge on the part of a person on the assumption that such a person has the ordinary understanding expected of him. The court is not concerned with the knowledge of a reasonable man but with reasonable inferences to be drawn from a situation. There are many circumstances from which knowledge can be inferred. One instance is the inference to be drawn from the act of a person in absconding or fleeing from the scene of a crime. In dealing with this issue, I said in Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705 at pp 721-722: A typical example of such conduct is the absconding or flight of a person after the commission of an offence. But evidence of mere absconding or flight is not such a vital circumstance which can be considered to show that the absconder was having any guilty mind (see Bhagat Bahadur v State (1996) Cri LJ 2201). Such conduct must be considered in the totality of the evidence adduced (see Mansor bin Mohd Rashid’s case). For it to be capable of amounting to an admission of guilt there must be a nexus between his conduct, his flight and the offence in question. As Lord Ackner said in Chan Kwok Keung & Anor v The Queen (1990) 1 CLJ 411 at p 413: ‘It is common ground that conduct, and in particular the flight of an accused after an offence has been committed, may be tantamount to an admission by him of his guilt of that offence and as such admissible evidence. Their Lordships’ attention was invited by Mr Duckett QC on behalf of the crown to a number of Australian authorities which illustrate this proposition. But each case must depend on its own particular facts. In those cases to which their Lordships were referred, the flight of the accused had occurred within a short space of time of the offence being committed and in circumstances which clearly connected the accused with the offence. In this case the appellants were found stowed away nearly ten months after the commission of the crime. The prosecution led no evidence to suggest that they had been in hiding for all or any part of this period. Indeed there was no evidence as to whether any and if so what efforts had been made by the police to find them and with what result. Leung, in his statement to the police after his arrest, gave them some information as to where the appellants were living or working, but no evidence was given as to whether these leads were followed up and if so with what result. It would in their Lordships’ opinion be quite wrong for the jury to have taken it for granted that the appellants, during all or any part of this relatively lengthy period, had been evading capture for this offence. That was not the case as

presented by the prosecution, and very appropriately the judge in his summing-up never suggested to the jury that they were entitled to make such an assumption. [*21] In order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question. In this case the prosecution produced no evidence to establish that either of the appellants had been hiding away or otherwise behaving in an unusual manner to this period of nearly ten months. There was therefore no material which could have justified the jury inferring that the only reasonable explanation for the appellants stowing away on the ship from Hong Kong to Macau was that they were on the run, because they knew they might be arrested and charged with this murder. There could have been a variety of other reasons for their having stowed away nearly ten months after the murder.’ Evidence of such conduct can be explained away by the accused as provided by s 9 of the Evidence Act 1950 (see Ling Ngan Liong v PP [1964] MLJ 20; Choo Chang Teik & Anor v PP [1991] 3 MLJ 423). However, the onus is on the accused to explain his conduct. Thus, in Mansor bin Mohd Rashid’s case, the Federal Court held that the intention of the accused persons to flee, when considered in the light of the evidence adduced, justifiably necessitated some explanation from them. A failure to put forward any explanation of absconding after the occurrence of a crime is a point in favour of the prosecution (see Parmeshwar v R AIR 1941 Orissa 517). [12] The manner of proving knowledge by drawing inferences can be seen in cases such as Director of Public Prosecutions v Wishart Brooks [1974] AC 862 and Neo Koon Cheo v R [1959] MLJ 47. In Director of Public Prosecutions v Wishart Brooks , a number of police officers saw a van with its engine running parked on a lay-by near an airstrip. On the approach by the police officers, the respondent, who was the driver, and others who were in the cab of the van attempted to run away. The respondent was caught by the police. In the body of the van, which was neither visible nor accessible from the cab, were 19 sacks containing over 1,000 pounds of ganja. The respondent’s conviction was quashed by the Jamaican Court of Appeal on the ground that it was not shown that he had more than mere custody or charge of the van and its contents and that there was no evidence that he had possession of the ganja. The Privy Council, in allowing the appeal, held that the technical doctrines of the civil law about possession were irrelevant to this field of criminal law and added at pp 866-867: In the ordinary use of the word ‘possession’, one has in one’s possession whatever is, to one’s own knowledge, physically in one’s custody or under one’s physical control. This is obviously what was intended to be prohibited in the case of dangerous drugs. Question (1) and the reason given for the answer, however, suggest that, in addition to the mental element of knowledge on the part of the accused, which

the Court of Appeal had chosen to deal with separately in questions (2) and (3), the word ‘possession’ imported into this criminal status as a necessary ingredient of an offence against public health the highly technical doctrines of the civil law about physical custody without ownership as a source of legal rights in the actual custodian against third parties and about the legal relationships between owner and custodian which bring about the separation of property and possessory rights in chattels. If this is the implication to be drawn from this part of the judgment in Reg v Livingston (1952) 6 JLR 95 it is, in their Lordship’s view, wrong. These [*22] technical doctrines of the civil law about possession are irrelevant to this field of criminal law. The only actus reus required to constitute an offence under s 7(c) is that the dangerous drug should be physically in the custody or under the control of the accused. The mens rea by which the actus reus must be accompanied is the kind of knowledge on the part of the accused that is postulated in questions (2) and (3). Upon the evidence, including his own statement to the police, the 19 sacks of ganja were clearly in the physical custody of the respondent and under his physical control. The only remaining issue was whether the inference should be drawn that the respondent knew that his load consisted of ganja. Upon all the evidence and in particular the fact that he and other occupants of the van attempted to run away as soon as they saw the uniformed police approaching the magistrate was, in their Lordships’ view, fully entitled to draw the inference that the defendant knew what he was carrying in the van. [13] In Neo Koon Cheo v R , a raid was made by a detective sergeant, a detective corporal and a detective on the attic of No 26, New Bridge Road, on 21 January 1958 at about 8.20pm. On entering the attic, the detective corporal and the detective saw the appellant holding a confectionery tin in his hands and attempting to get out of the attic through an opening on the left side of the attic. On examination, the tin was found to contain a phial of chandu, a small tin of chandu dross, an opium pipe-head, a rag and some tools. In holding, in the alternative, that the evidence was sufficient to make a case against the appellant for possession of prepared opium and smoking utensils, Ambrose J said at p 50: If my interpretation of s 37(d) of the Ordinance is not correct, the conviction on the first charge can be supported without having recourse to the presumption under s 37(d). The fact that the appellant was seen attempting to take the confectionery tin and its contents out of the attic as soon as the detectives entered the attic raises the inference that the appellant was endeavouring to put the tin and its contents out of sight and the further inference that he had knowledge of the nature of the contents of the tin. As the opium pipe-head and the chandu and chandu dross were found in the attic, it must be presumed, until the contrary is proved, under s 37(c) of the Dangerous Drugs Ordinance that the attic was used for the purpose of smoking of chandu by a human being and that the occupier permitted the attic to be used for such purpose. The appellant was not the occupier of the premises but a friend of the occupier. Nevertheless, the presumptions under s 37(c) makes both the inferences irresistible. As the contents of the

confectionery tin were in the appellant’s actual physical control, and as the circumstances justified the inference that the appellant intended to exercise control over them for his own purposes, he was, in my opinion, rightly found to-be in possession of the chandu and chandu dross. [14] The evidence of PW2 shows that the accused was carrying exh P3 for some distance. When PW2 shouted ‘Police’, the accused ran and threw it. PW2 then picked it up. It contained the dangerous drugs. The fact that the accused was carrying exh P3 and that he threw it when confronted clearly shows that he had custody and control of it together with what it contained. The remaining matter for consideration is whether he had knowledge that he was carrying the dangerous drugs in respect of which he had been [*23] charged. As proof of knowledge is very often a matter of inference, the conduct of the accused prior to his arrest is brought into sharp focus. He ran and threw exh P3 when PW2 shouted ‘Police’. In Chan Kwok Keung & Anor v The Queen [1990] 1 CLJ 411, referred to in a passage from Public Prosecutor v Chia Leong Foo which I have reproduced earlier, it was held that in order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question. The facts reveal that the accused had custody and control of exh P3 at the material time. It contained the dangerous drugs which formed the offence alleged against him. When the word ‘Police’ was shouted he immediately ran and threw it. The fact that the accused was carrying exh P3 with its contents followed by the speed at which he ran and threw it upon being confronted show that there is a clear nexus between his conduct and the offence in question. He wanted to part possession with what constituted the offence. It is a clear indication of his guilty mind. This is sufficient to infer that the accused had knowledge of the existence of the dangerous drugs in exh P3. I pause to add that the facts of this case must be contrasted with those in Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 3 MLJ 1, Public Prosecutor v Letchumanan [2000] 4 MLJ 449 and Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 where the flight of the accused was found to be of no consequence as there was no nexus between the dangerous drugs seized and the conduct of the accused. The inference drawn in this case that the accused had knowledge of the existence of the dangerous drugs does not suggest that he knew that it was cannabis. With regard to the extent and nature of knowledge of the dangerous drugs that the prosecution must prove, I consider it necessary to reproduce what I had said in Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor at pp 420-421: It must be observed that in proving this element the obligation of the prosecution is only to establish that the accused had knowledge, either by direct evidence or by way of inference, of the existence of the dangerous drug but not its qualities. This stand has been consistently taken by the Singapore Courts following Warner v Metropolitan Police Commissioner [1969] 2 AC 256 which was approved in Tan Ah Tee & Anor v PP [1980] 1 MLJ 49. It is sufficient for me to refer to Sim Teck Ho v PP [2000] 4 SLR 39 where Yong Pung How CJ said at pp 42-43: ‘The appellant was charged with trafficking in a controlled drug, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) (‘ the Act’). Section 5(2) of the Act states that a person commits

the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking. Section 17(c) of the Act provides a presumption concerning trafficking. It states that any person proved to have possession of more than 2g of diamorphine shall be presumed to have that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose. The key issue in this appeal was whether the trial judge was right in finding that the appellant was in possession of the diamorphine contained in the bag. Numerous cases have established that possession encompasses [*24] the element of physical control as well as an element of knowledge. For example, in Fun Seong Cheng v PP [1997] 3 SLR 523, it was said by Karthigesu JA, in delivering the judgment of the Court of Appeal: 53 … Clearly in order to prove that the appellant was in possession, he must have physical control over the drugs. It is a matter of fact whether someone had physical control over an item … 54 Physical control is not enough for the purpose of proving possession. There needs to be mens rea on the part of the accused.” Karthigesu JA went on to cite a portion of Lord Pearce’s judgment in Warner v Metropolitan Police Commissioner [1969] 2 AC 256, a decision of the House of Lords which involved the meaning of ‘possession ’ for the purpose of s 1 of the Drugs (Prevention of Misuse) Act 1964. Lord Pare’s dicta had been cited in extensio with approval by the Court of Appeal in Tan Ah Tee & Anor v PP [1978-1979] SLR 211; [1980] 1 MLJ 49. Wee Chong Jin CJ in delivering the judgment of the court, said that the word ‘possession’ for the purpose of the Act should be construed as Lord Pearce had construed it. His Lordship had said in Warner at p 305: ‘One may, therefore, exclude from the ‘possession’ intended by the Act the physical control of articles which have been ‘planted’ on him without his knowledge. But how much further is one to go? If one goes to the extreme length of requiring the prosecution to prove that ‘possession’ implies a full knowledge of the name and nature of the drug concerned, the efficacy of the Act is seriously impaired, since many drug pedlars may in truth be unaware of this. I think that the term ‘possession’ is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse.’ Therefore, in order to prove possession, the prosecution must prove that there is first, physical control over the controlled drug, and second, knowledge of the existence of the thing itself, that is the existence of the controlled drug, but not the name nor nature of the

drug. [15] Thus, it is not necessary for the prosecution to prove that the accused had knowledge of the nature of the drugs. It follows that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis. However, there is no further evidence to show that he was trafficking in the dangerous drugs. As the cannabis weighed more than 200g, the presumption contained in s 37(da) of the Dangerous Drugs Act 1952 must therefore be invoked. The accused is thus presumed to have been trafficking in the drugs. This means that the prosecution has made out a prime facie case against the accused. Accordingly, I called upon him to enter his defence to the charge preferred against him. The three alternatives were explained to the accused. He elected to give evidence on oath. [16] In substance, the defence of the accused is that he was not carrying exhs P3 and that PW2 was not at the scene. As he said in his evidence: Saya berjalan ke arah landasan keretapi untuk pergi ke gerai makan. Reban ayam di sini saya punya. Saya dari kawasan depan bengkel melalui lorong yang ada anak panah. Kemudian saya melalui lorong tepi reban ayam menuju ke tandas untuk cuci tangan saya. Selepas itu, saya menuju ke kawasan pagar [*25] yang berlubang. Saya keluar melalui pagar berlubang itu. Kemudian seorang lelaki berumur dalam 35 tahun panggil saya. Kemudian dia terus memegang saya. Apabila orang itu panggil saya, dia ada di belakang saya. Lebih kurang dalam jarak 10–11 meter. Beliau dengan seorang lain. Dia terus memegang saya. Dia terus menggari saya. Baru dia memperkenalkan diri. Mereka anggota polis. Pada masa itu, saya tidak memegang apa-apa barang. Kemudian dua anggota polis memukul saya. Dua anggota polis ini tidak ada memberi keterangan dalam kes ini. Mereka tanya saya di manakah barang. Saya tidak tahu apa barang yang mereka maksudkan. Kemudian salah seorang dari anggota polis itu menunjuk kepada longgokan sampah. Dia mengambil satu bungkusan plastik berwarna putih jernih lutsinar. Jarak di antara tempat saya dan longgokan sampah lebih kurang 8–9m. Anggota polis pergi terus dan mengambil barang itu. (Saksi dirujuk kepada P10). Gambar A dan D ialah kawasan sampah. Selepas barang diambil, dia membawa saya menuju ke depan kawasan bengkel. Kemudian salah seorang anggota polis mengeluarkan telefon bimbit dan membuat satu panggilan. Dalam masa 15 minit, dua kereta datang. Satu kereta Proton Perdana berwarna hijau. Satu lagi Proton Saga berwama biru. Dari Perdana keluar seorang. Dari Proton Saga, dua orang keluar. Kemudian dia mengambil saya dan letak saya dalam kereta Proton Saga. Saya diambil ke Balai Polis Brickfields. Perkara seperti yang dikatakan oleh SP2 tidak berlaku. Saya nampak SP2 di depan kawasan bengkel sahaja. Dia yang membawa kereta Perdana. Dia keluar dari kereta itu. Jarak dari tempat saya ditangkap ke tempat bengkel lebih kurang 60m. Dari tempat bengkel tidak boleh nampak tempat yang saya ditangkap. Sebab ia terlindung di belakang reban ayam dan semak-semak samun. Orang dari bengkel buang sampah di tempat sampah itu. Pada masa itu, ada pekerja lain yang menuju ke kawasan yang sama. Tidak benar tangkapan berlaku pada 12.00 tengah hari.

[17] The testimony of the accused that PW2 was not at the scene was not put to him in the course of his cross-examination. That, on its own, does not mean that this part of the defence must be rejected. As Edgar Joseph Jr FCJ said in Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209 at p 218: … it is settled law that, although a court may view with suspicion a defence which has not been put to the appropriate prosecution witnesses who might have personal knowledge of the points at issue, the court is still bound to consider the defence, however weak, and to acquit if not satisfied that the prosecution has discharged the burden of proof which rests upon it. [18] Ordinarily, it may have been necessary for the prosecution to have recalled PW2 for the purpose of rebutting this part of the evidence of the accused. However, PW2 was cross-examined at length on the basis that he was at the scene. As he had given affirmative evidence of his presence at the scene there was no need for him to have been recalled for the purpose of rebutting what he had already confirmed. In the circumstances and judged against the background of the facts of the case, it is my view that this part of the evidence of the accused is a concoction. This casts doubt on the credibility of his evidence that he was not carrying exh P3. It is also in the nature of a bare denial. Thus, I was unable to accept the defence advanced by the [*26] accused. He had therefore not succeeded in rebutting the presumption raised against him. Neither has he raised any reasonable doubt to show that he was not in possession of exh P3 at the material time. I was therefore satisfied that the prosecution had proved its case against the accused beyond reasonable doubt. Accordingly, I found him guilty. I imposed the only sentence allowed by law, that is to say, the sentence of death. I further directed that the accused be hanged by the neck till he is dead. ORDER: Accused convicted. LOAD-DATE: 05/21/2008
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Court of appeal
© 2008 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal PDF Print Format Reza Mohd Shah bin Ahmad Shah v Public Prosecutor [2006] 2 MLJ 223 CRIMINAL APPEAL NO W–05–34 of 2002 COURT OF APPEAL (PUTRAJAYA) DECIDED-DATE-1: 13 OCTOBER 2005 ABDUL KADIR SULAIMAN, ARIFIN ZAKARIA AND NIK HASHIM JJCA CATCHWORDS: Criminal Law - Drug trafficking - Dangerous Drugs Act 1952 - s 39B(1)(a) - Whether direct evidence of possession adduced - Whether necessary for prosecution to prove directly or inferentially that accused had knowledge of the dangerous drug - Whether prosecution ought to have invoked statutory presumption of possession - Whether prima facie case of trafficking made out against accused - Whether proma facie case of possession made out instead - Dangerous Drugs Act 1952 s 37(d), (da) Evidence - Character of accused - Conduct of accused running away and throwing bag containing drugs when confronted by non-uniformed police officers - Inferences from

such conduct - Whether sufficient to infer knowledge of the drugs - Whether such conduct could sustain other inferences Evidence - Presumptions - Drug trafficking - Presumption of possession - Whether direct evidence to sustain possession of dangerous drugs in existence - Whether factual matrix favoured recourse to the statutory presumption of possession Dangerous Drugs Act 1952 s 37(d), (da) HEADNOTES: The appellant was convicted and sentenced to death in the High Court for trafficking in dangerous drugs, to wit 795.3g of cannabis. In convicting the appellant, the trial judge made a positive/direct finding of possession without recourse to the statutory presumption of possession under s 37(d) of the Dangerous Drugs Act 1952 (‘the Act’). Upon this positive/direct finding of possession, the trial judge then applied the statutory presumption of trafficking under s 37(da) of the Act. In establishing positive/direct possession, the trial judge found the element of custody or control of the cannabis proved by the following direct evidence: (a) the appellant was seen carrying a plastic bag (‘exh P3’) for some distance; (b) when confronted by police officers, the appellant ran and threw exh P3 away; (c) when exh P3 was recovered, it was found to contain cannabis. With regard to the element of knowledge, the trial judge found that the conduct of the appellant in running away when confronted and throwing away exh P3 evinced a clear nexus between his conduct and the offence in question. Such conduct was an indication of his guilty mind and was sufficient to infer that he had knowledge of the existence of the cannabis in exh P3. The appellant appealed against conviction and sentence. [*224] Held, allowing the appeal: (1) The conduct of the accused in running and throwing the bag (exh P3) away could also give rise to the inference that the appellant was behaving in the manner he did in respect of any other offence relating to what was contained in exh P3. The trial judge did not realize this. Such conduct of the appellant did not also point to the one and only conclusion that he knew what he was carrying was the dangerous drug cannabis. Such conduct could also give rise to the inference that he acted as he did because he was carrying some other prohibited goods or that he panicked upon being confronted by non-uniformed police officers (see paras 9–11); Sim Teck Ho v Public Prosecutor [2000] 4 SLR 39 distinguished and Ton Su Kuan v Public Prosecutor [2005] 3 CLJ 740 followed. (2) The Court of Appeal could not agree with the trial judge’s conclusion that it was not necessary for the prosecution to prove that the appellant had knowledge of the nature of the drug. In the instant case, with reference to the offence the appellant was charged with, it was necessary for the prosecution to prove directly or inferentially that the appellant had knowledge of the dangerous drug in the bag (exh P3). Here, in view of the appellant’s conduct, it was necessary for the prosecution to have invoked the statutory presumption under s 37(d) of the Dangerous Drugs Act 1952 to deem the appellant in possession of the cannabis and to have known that exh P3 contained the cannabis. Since

the statutory presumption had not been invoked, no prima facie case had been made out against the appellant. (see paras 12, 13). (3) In the instant case, the issue of trafficking in the cannabis could not arise as possession of the said drug by the appellant was not made out by the prosecution. There was no direct evidence of possession with the requisite knowledge based on the evidence tendered. However, with the aid of the statutory presumption provided by s 37(d) of the Act, the prosecution had made out a prima facie case for an offence under s 6 of the Act for being in possession of the cannabis. The appellant’s defence at the trafficking trial ought to have been considered as a defence on the reduced charge of possession. His defence however was a mere denial and he had not rebutted the presumption raised against him under s 37(d) of the Act. The Court of Appeal found that on the facts, the prosecution had proved its case against the appellant on the reduced charge of possession beyond reasonable doubt. Accordingly, the Court of Appeal substituted the conviction and sentence for trafficking with a conviction and sentence for possession (see paras 14–18). Perayu telah disabit dan dijatuhkan hukuman mati di Mahkamah Tinggi kerana mengedar dadah berbahaya, iaitu sejumlah 795.3g kanabis. Dalam mensabitkan perayu, hakim perbicaraan telah membuat penemuan positif/langsung berhubung milikan tanpa bantuan andaian statutori milikan di bawah s 37(d) Akta Dadah [*225] Berbahaya 1952 (‘Akta tersebut’). Berdasarkan penemuan positif/langsung milikan ini, hakim perbicaraan kemudiannya telah menggunakan andaian statutori pengedaran di bawah s 37(da) Akta tersebut. Dalam membuktikan milikan positif/langsung, hakim perbicaraan mendapati elemen milikan atau kawalan kanabis dibuktikan melalui keterangan langsung berikut: (a) perayu telah dilihat dari jauh sedang membawa sebuah beg plastik (‘eksh P3’); (b) apabila bertembung dengan pegawai polis, perayu lari dan membaling eksh P3; (c) apabila eksh P3 ditemui, ia didapati mengandungi kanabis. Berhubung elemen pengetahuan, hakim perbicaraan mendapati bahawa perlakuan perayu melarikan diri apabila didatangi polis dan membaling eksh P3 memperlihatkan neksus antara perlakuan beliau dan kesalahan yang dipersoalkan. Perlakuan sedemikian merupakan petanda fikiran bersalah beliau dan adalah memadai untuk membuat kesimpulan bahawa beliau mempunyai pengetahuan tentang kewujudan kanabis itu dalam eksh P3. Perayu telah mengemukakan rayuan terhadap sabitan dan hukuman. Diputuskan, membenarkan rayuan tersebut: (1) Perlakuan tertuduh melarikan diri dan membaling beg itu (eksh P3) juga menimbulkan inferens bahawa perayu berkelakuan seperti mana sepatutnya berhubung apa-apa kesalahan lain berkaitan dengan apa yang terkandung dalam eksh P3. Hakim perbicaraan tidak sedar hal ini. Perlakuan perayu yang sedemikian juga tidak menunjukkan kepada hanya satu kesimpulan bahawa beliau mengetahui apa yang beliau bawa itu adalah dadah berbahaya kanabis. Perlakuan tersebut juga menimbulkan inferens bahawa beliau telah bertindak sepertinya kerana beliau sedang membawa barangan larangan lain atau bahawa beliau panik apabila didatangi pegawai polis yang tidak berseragam itu (lihat perenggan 9–11); Sim Teck Ho v Public Prosecutor [2000] 4 SLR 39 dibeza dan Ton Su Kuan v Public Prosecutor [2005] 3 CLJ 740 diikut. (2) Mahkamah Rayuan tidak bersetuju dengan kesimpulan hakim perbicaraan bahawa ia tidaklah perlu untuk pihak pendakwa membuktikan bahawa perayu

mempunyai pengetahuan tentang sifat dadah itu. Dalam kes semasa, berdasarkan rujukan kepada kesalahan perayu yang telah dituduhkan itu, adalah perlu untuk pihak pendakwa membuktikan secara langsung atau secara inferens bahawa perayu mempunyai pengetahuan tentang dadah berbahaya dalam beg itu (eksh P3). Di sini, berdasarkan perlakuan perayu, adalah perlu untuk pihak pendakwa untuk menggunakan andaian statutori di bawah s 37(d) Akta Dadah Berbahaya 1952 untuk menganggap perayu mempunyai milikan kanabis itu dan telah mengetahui bahawa eksh P3 mengandungi kanabis. Memandangkan andaian statutori tidak digunakan, tiada kes prima facie telah dibuktikan terhadap perayu (lihat perenggan 12, 13). (3) Dalam kes semasa, persoalan tentang pengedaran kanabis tidak timbul kerana milikan dadah tersebut oleh perayu tidak dibuktikan oleh pihak pendakwa. Tidak ada keterangan langsung tentang milikan dengan pengetahuan yang diperlukan berdasarkan keterangan yang dikemukakan. Namun, dengan bantuan andaian statutori yang diperuntukkan oleh s 37(d) Akta tersebut, pihak pendakwa telah membuktikan satu kes prima facie untuk kesalahan di bawah s 6 Akta tersebut kerana memiliki kanabis. Pembelaan perayu semasa [*226] perbicaraan pengedaran itu sepatutnya dipertimbangkan sebagai pembelaan untuk mengurangkan pertuduhan milikan. Pembelaan beliau bagaimanapun hanyalah satu penafian dan beliau tidak mematahkan andaian yang ditimbulkan terhadapnya di bawah s 37(d) Akta tersebut. Mahkamah Rayuan mendapati bahawa berdasarkan fakta-fakta berikut, pihak pendakwa telah membuktikan kesnya terhadap perayu berdasarkan pengurangan pertuduhan milikan yang melampaui keraguan munasabah. Sewajarnya, Mahkamah Rayuan telah menggantikan sabitan dan hukuman untuk pengedaran itu dengan satu sabitan dan hukuman untuk milikan (lihat perenggan 14–18). Notes For cases on character of accused generally, see 7(1) Mallal’s Digest (4th Ed, 2003 Reissue) paras 559–589. For cases on drug trafficking, see 4 Mallal’s Digest (4th Ed, 2003 Reissue) paras 290– 391. For cases on presumptions on drug trafficking, see 7(1) Mallal’s Digest (4th Ed, 2003 Reissue) paras 1954–1957.

Cases referred to Muhammed bin Hassan v PP [1998] 2 MLJ 273 PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 Sim Teck Ho v PP [2000] 4 SLR 39 Taib bin Mohamad v PP [2002] 3 MLJ 476 Ton Su Kuan v PP [2005] 3 CLJ 740 Warner v Metropolitan Police Commissioner [1969] 2 AC 256 Legislation referred to Dangerous Drugs Act 1952ss 6, 37(d), (da)(vi), 39A(2) Drugs (Prevention of Misuse) Act 1964 [UK] s 1

Appeal from: Criminal Trial No 45-10 of 2001 (High Court, Kuala Lumpur)

Edmund Bon (Nik Mohamed Ikhwan with him) (Chooi & Co) for the appellant. Tuan Meor Hashimi bin Abdul Hamid for the respondent (Public Prosecutor, Attorney General’s Chambers) for the respondent. Abdul Kadir Sulaiman JCA (delivering judgment of the court):: [1] The appellant was charged in the High Court with an offence of trafficking in dangerous drug, to wit, cannabis. The charge in Bahasa Malaysia is in the following terms: Bahawa kamu pada 14 Ogos 2000 jam lebih kurang 12.15 tengahari, di kawasan tanah rezab jalan keretapi, Jalan Pantai Dalam, Brickfields, Kuala Lumpur, Wilayah Persekutuan telah mengedar dadah berbahaya iaitu 795.3 gram cannabis dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s 39B(2) Akta yang sama. [*227] [2] After a full trial, the learned judge found the appellant guilty of the charge and proceeded to convict him accordingly. The judge relied on the fact of actual possession of the substance without having to rely on the presumption provided by s 37(d) of the Dangerous Drugs Act 1952 (‘the Act’), and upon the application of the presumption under s 37(da) of the Act thereof, the substance being above the statutory minimum weight of 200g, found him to be trafficking in the substance, having ruled that the appellant failed to raise any reasonable doubt as to the prosecution’s case. The substance in this case is cannabis, a form of dangerous drug. [3] This is an appeal by the appellant against his said conviction upon the charge and the mandatory sentence thereby imposed by the learned judge. We heard the appeal on 10 May 2005. At the end of it, we allowed the appeal of the appellant by setting aside the decision of the learned Judge and in its place we substituted with the finding of guilty upon a reduced charge of being in possession of cannabis under s 6 and sentenced the appellant under the increased penalty provided by s 39A(2) of the Act, to a term of 18 years imprisonment to take effect from the date of arrest, which was on 14 August 2000, with whipping of 10 strokes. We now provide our reasons for so doing. [4] The learned judge found actual possession of cannabis in the appellant on the evidence before him. The evidence of PW2 shows that the respondent was seen carrying exh P3, a plastic bag, for some distance. When confronted, he ran and was seen throwing exh P3 away. When recovered, exh P3 was found to contain cannabis. As to the custody and control of exh P3 in the appellant, on the evidence, there cannot be any doubt. Therefore, the remaining matter for his consideration is whether the appellant had knowledge that he was carrying the dangerous drug in respect of which he had been charged, ie cannabis. In other words, the issue is whether the appellant had the knowledge that he was carrying cannabis. For such conduct of the appellant, which is running away when confronted and at the same time throwing away the plastic bag containing cannabis, the learned judge held:

The fact that the accused was carrying exh P3 with its contents followed by the speed at which he ran and threw it upon being confronted show that there is a clear nexus between his conduct and the offence in question. He wanted to part possession with what constituted the offence. It is a clear indication of his guilty mind. This is sufficient to infer that the accused had knowledge of the existence of the dangerous drugs in exh P3. [5] However, the learned judge was mindful that the inference drawn in this case that the appellant had knowledge of the existence of the dangerous drug does not suggest that he knew that it was cannabis. But relying on his own decision in the case of Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 following the Singapore case of Sim Teck Ho v Public Prosecutor [2000] 4 SLR 39, he was satisfied that the appellant had knowledge of the existence of cannabis in exh P3. He relied his findings on a dicta of Yong Rung How CJ in the case of Sim Teck Ho, where the learned CJ said at p 43: The appellant was charged with trafficking in a controlled drug, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) (‘the Act’) . Section 5(2) of the Act states that a person commits the offence of trafficking in a controlled drug if he has in his possession that drug [*228] for the purpose of trafficking. Section 17(c) of the Act provides a presumption concerning trafficking. It states that any person proved to have possession of more than 2g of diamorphine shall be presumed to have that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose. [6] The learned CJ in Sim Teck Ho, then cited the dicta of Lord Pearce in Warner v Metropolitan Police Commissioner [1969] 2 AC 256, a decision of the House of Lords involving the meaning of ‘possession’ for the purpose of s 1 of the Drugs (Prevention of Misuse) Act 1964 as follows: I think that the term ‘possession’ is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance and mistake as to its qualities is not an excuse. In conclusion, the learned CJ said: Therefore, in order to prove possession, the prosecution must prove that there is first, physical controlled over the controlled drug, and second, knowledge of the existence of the thing itself, that is the existence of the controlled drug, but not the name or nature of the drug. [7] Thus, relying on those cases in the House of Lords and in the Singapore Court, the learned judge, in our present case, followed the decision he made in Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor, where he concluded at p 420 thus: It must be observed that in proving this element the obligation of the prosecution is only to establish that the accused had knowledge, either by direct evidence or by way of inference, the existence of the

dangerous drug but not its qualities. [8] Having gone through the report in Sim Teck Ho, ourselves, we are of the view that the case can be easily distinguished from the present case before us on the peculiar facts and circumstances prevailing in the case. The Singapore Court of Appeal in that case affirmed the decision of the High Court at first instance. Refer to paras 5– 9 of the report, in particular, for the reasons. [9] In our view, owing to the peculiar facts and circumstances presenting themselves in the Singapore case, without having to resort to any statutory presumption, the accused there can safely be inferred to have been in possession of the controlled drugs, diamorphine, and to have known the nature of the controlled drugs. However, in our present case, the inference of possession of cannabis and the knowledge by the appellant that the dangerous drug contained in exh P3 is cannabis was deduced only from the fact that the appellant ‘was carrying exh P3 with its contents followed by the speed at which he ran and threw it upon being confronted’ which according to the learned judge would show that there is a clear nexus between his conduct and the offence in question. From the facts, the learned judge was of the view that the appellant wanted to part possession with what constituted the offence and a clear indication of his guilty mind which is sufficient to infer that the appellant had knowledge of the existence of the dangerous drug which in this case is cannabis in exh P3 but without little realizing that from the conduct of the appellant it could [*229] also clearly be inferred that he could have behaved in the manner he did in respect of any other offence relating to what was contained in exh P3. [10] In support of the findings of the learned judge on the issue of possession of the dangerous drugs, cannabis, the learned deputy for the respondent, submitted that the appellant was seen by the police ambush team headed by PW2 carrying in his right hand exh P3 which contained dangerous drug. The appellant’s movement was under surveillance of the ambush team and was seen walking alone in a suspicious manner. When the word ‘polis’ was uttered he took flight. In the course of it, the appellant threw to the ground the plastic bag he was then carrying. The said bag was subsequently found to contain cannabis. So, on the facts, the learned deputy submitted that the said dangerous drug, was in his possession. The appellant’s action in running away when confronted, and at the same time throwing away the plastic bag can be inferred that the appellant had the knowledge that the plastic bag contained the dangerous drug. By running away, it shows that the appellant had the knowledge in regard to the drug in the plastic bag. By throwing away the plastic bag, the appellant wanted to part with possession of the drug. [11] But in our view, just because the appellant took flight and threw the plastic bag containing dangerous drug does not point to one and only conclusion that he knew what he was carrying was the dangerous drug, cannabis. In the circumstances, other inferences can be made such as that he did so because he may be carrying any other prohibited goods other than cannabis or that he was panicky and therefore chose to run away and throw out the bag he was carrying more so, in this case, when the police who confronted him were not in uniform. In Ton Su Kuan v Public Prosecutor [2005] 3 CLJ 740 where the circumstances were very much stronger against the accused in that case than those in the present case but this court held that they were insufficient to constitute proof of possession of the very drug stipulated in the charge. The accused in that case was charged with the capital offence of trafficking in 1,584.93g of heroin and was sentenced to death in the High Court. The evidence for the prosecution was that the drug was found in 356 packets in different parts of the

accused’s person: 62 packets in the left shoe, 60 packets in the right shoe, 57 packets strapped to the left shin, another 57 packets strapped to the right shin, 60 packets tied to the waist in front and 60 packets fastened to the waist at the back. This court there said as follows: In our judgments, the manner in which the packets were fastened to the appellant’s person shows at the highest that he had knowledge the packets contained some prohibited substance, perhaps, drugs or perhaps some other substance which was unlawful to have in one’s possession. But It certainly does not prove that the appellant knew the packets contained heroin, the drug which forms the subject matter of the charge. [12] The learned judge in his judgment at p 22 of the appeal record said that in the nature of the charge, it is not necessary for the prosecution to prove that the appellant had knowledge of the nature of the drug. With respect, we cannot agree with such conclusion. By the operation of our Dangerous Drugs Act 1952, in relation to the charge, it is necessary for the prosecution to prove directly or inferential that the appellant had the knowledge of the nature of the dangerous drug he was carrying in the plastic bag. Knowledge in a person is a thing which cannot be seen or [*230] perceived. It can be deduced only from the overt act or conduct short of his own admission. The legislature in its wisdom, realizing the difficulty of establishing by direct evidence of this fact of knowledge, introduced a statutory presumption which is rebuttable, by way of s 37(d) of the Act. In Taib bin Mohamad v Public Prosecutor [2002] 3 MLJ 476, this court said at p 480: We have examined the evidence adduced in the case at the prosecution stage of the trial to see if the facts disclosed that the accused had actual knowledge of the nature of the drugs so that the judge could have relied on such facts to infer knowledge without resorting to s 37(d) of the Act in which case the invoking of the presumption of trafficking under s 37(da) of the Act would have been correct in law. We did not find sufficient evidence for the judge to infer that the accused had knowledge that the material was cannabis. … the mere throwing of the bag without more cannot constitute knowledge of the contents of the bag. … There being no evidence from which his knowledge of the drugs could be inferred, the learned judge could not and should not have called the accused to make his defence on the charge of trafficking but the accused because of the presumption of knowledge of the drug raised under s 37(d) of the Act, could be called upon his defence on a charge of possession of the cannabis. [13] Therefore, upon the conduct of the appellant, only the statutory presumption in s 37(d), can assist the prosecution to deem the appellant to have been in possession of such drug, cannabis and to have known that exh P3 contained cannabis, the subject matter of the charge. However, the learned Judge and the prosecution did not avail themselves of the provisions of s 37(d) thereof. So, on the facts, we disagreed with the learned judge that in the present case involving the appellant, he could be inferred to have the knowledge that what he possessed was the dangerous drug, cannabis. Short of invoking the statutory presumption provided by s 37(d) upon the conduct of the appellant, no prima facie case has been made out against the appellant

that he was in possession of cannabis with the requisite knowledge. [14] Now, having erroneously inferred from the conduct of the appellant to have produced direct evidence of possession of cannabis in him, the learned judge upon the weight of the cannabis found, invoked the presumption contained in s 37(da) thereof thereby presuming the appellant to have been trafficking in such dangerous drug. But as correctly pointed out by the learned judge, the prosecution must first establish that the appellant was in possession of the dangerous drugs before the issue of trafficking in them can arise for consideration. In the circumstances of the view we formed, the issue of trafficking in the said dangerous drug would not at all arise as the issue of possession of the drug by the appellant was not made out by the prosecution. [15] However, that is not the end of the matter in that the appellant ought to be acquitted entirely of the charge. As stated earlier, there is no direct evidence of possession with the requisite knowledge based on the evidence tendered. But, with the aid of the statutory presumption provided by s 37(d) of the Act, on the facts, the prosecution had made out a prima facie case for an offence under s 6 of the Act for being in possession of the said dangerous drug, cannabis, and as the weight of [*231] cannabis involved is more that 50g, is liable to be punished under s 39A(2) of the Act, if found guilty. Consequently, the appellant ought to have been called to enter his defence for such possession. [16] To digress, a question may be asked. Now that with the aid of the statutory presumption provided by s 37(d) of the Act, knowledge of the possession of cannabis is imputed on the appellant, why cannot the appellant be proceeded with the trial for the offence of trafficking by invoking another statutory presumption under s 37(da) (vi) of the Act, as the weight of cannabis possessed was 200g or more? The answer to that is to be found in the celebrated decision of Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273. The facts are similar to the present case against the appellant in our present case. On the evidence, the learned trial judge held that a prima facie case had been made out against the accused and that the prosecution had also successfully raised the statutory presumptions under s 37(d) and 37(da) of the Act. The learned trial judge then called on the accused to enter upon his defence on a trafficking charge. On the totality of the evidence, the learned trial judge found that the accused had failed to raise any reasonable doubt on the prosecution’s case and had failed to rebut the statutory presumptions under s 37(d) and 37(da) on a balance of probabilities. The accused was accordingly found guilty of the offence of trafficking and was accordingly convicted. The accused appealed. The Federal Court in disposing the appeal held at pp 288–289 as follows: In our view, to constitute ‘possession’ under s 37(da) of the Act, so as to be capable of forming one of the ingredients thereunder thereby giving rise to the presumption of trafficking, there must be an express affirmative finding (as opposed to legal presumption) of possession as understood in criminal law, based on evidence. Continuing at p 858, the Federal Court ruled as follows: In our view, on the wording of s 37(da) as it stands, to read the presumption of possession (ie possession as understood in criminal law, with knowledge) provided in s 37(d) into s 37(da) so as to invoke against an accused a further presumption of trafficking (ie presumption upon presumption) would not only be ascribing to the phrase ‘found in

possession’ in s 37(da) a meaning wider than it ordinarily bears but would also be against the established principles of constructions of penal statutes and unduly harsh and oppressive against the accused. We are not unaware that, as a general principle, a statute may place the burden of proof on an accused by necessary implication and without doing so expressly. This depends on the construction of the particular legislation. But a court should be extremely cautious and slow to infer from a statute that Parliament intended to impose on the defendant an onerous duty to prove his innocence in a criminal case. Furthermore, offences involving the trafficking of dangerous drugs are among the most serious in a criminal calendar. Any ambiguity in s 37(da) should be resolved in favour of the accused by placing the burden of proving possession of the substances involved on the prosecution. We would further add that in so construing as we do, we see no injustice to the prosecution. In a proper case where the evidence so warrants and the amount of the dangerous drugs reaches or exceeds the quantity specified in s 37(da), there is nothing to prevent a trial court from coming to a factual finding of possession as understood in criminal law thereby attracting the presumption of trafficking under the said s 37(da) which, of course, is rebuttable. [*232] Accordingly, we held that the learned trial judge had erred in law in using the presumption of possession under s 37(d) of the Act to invoke the presumption of trafficking under s 37(da) thereof. [17] Reverting back to our present case involving the appellant, on the view we expressed earlier, there is no express affirmative finding of possession as understood in criminal law but for the legal presumption under s 37(d) of the Act, the appellant cannot be called to enter his defence on the trafficking charge. [18] But having called for the appellant to enter his defence on the original charge of trafficking in such drug and heard the evidence tendered by the appellant, the learned judge convicted him on the charge of trafficking in the dangerous drug, cannabis. On our part, upon the view we took, the appellant’s defence at the trial should have been considered as a defence on the reduced charge of possession in the dangerous drug, cannabis. Considering the defence put up by the appellant which in substance a mere denial of the evidence led by the prosecution particularly the carrying and the throwing away of exh P3, we were of the view that the appellant had not succeeded in rebutting the presumption raised against him under s 37(d) of the Act. Neither has the appellant raised any reasonable doubt as to his custody and control of exh P3 which contained the dangerous drug, cannabis. We were therefore, satisfied that the prosecution had proved its case against the appellant on the reduced charge of possession, beyond reasonable doubt. Consequently, we found the appellant to be guilty of an offence under s 6 of the Act and it is for these reasons we allowed the appeal against the conviction on trafficking and the sentence of death and substituted therefor a conviction for possession of cannabis under s 6 of the Act and sentenced him to 18 years imprisonment to take effect from the date of arrest, which was on 14 August 2000, plus the minimum of 10 strokes of the rattan as so provided by s 39A(2) of the Act, which we considered as fair in the circumstances of the case,

after considering the submissions on the sentence to be imposed, from the learned counsel for the appellant on his behalf and from the learned deputy for the respondent. [19] My learned brothers, Arifin Zakaria and Nik Hashim JJCA have read this judgment in draft and concurred with it. ORDER: Appeal allowed. LOAD-DATE: 05/22/2008
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[2009] MLJU 0005 © 2009 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) Malayan Unreported Judgments Public Prosecutor v Reza Mohd Shah bin Ahmad Shah

FEDERAL COURT (PUTRAJAYA) CRIMINAL APPEAL NO 05-40-2005(W) DECIDED-DATE-1: 16 JANUARY 2009 HASHIM BIN DATO' HJ. YUSOFF, FCJ, ZAKI BIN TUN AZMI, PCA ABDUL AZIZ BIN MOHAMAD, FCJ JUDGMENTBY: Hashim bin Dato' Hj. Yusoff, FCJ

JUDGMENT [1] The Respondent was convicted and sentenced to death by the High Court for an offence of trafficking 795.3 grammes of cannabis. On appeal, the Court of Appeal substituted the conviction under 39B(2) Dangerous Drugs Act 1952 (“the Act”) with one under Section 6 of the Act and imposed a sentence of 18 years imprisonment with effect from his date of arrest i.e. 14/08/2000, plus the minimum of 10 strokes of whipping under section 39A(2) of the Act. The Public Prosecutor is now appealing against the decision of the Court of Appeal. [2] The brief facts are quite straight forward. The Respondent was seen by Inspector Mohamad Alpiyang bin Ali (PW2) carrying in his right hand exhibit P3, a plastic bag for some distance. When PW2 shouted “police”, the Respondent immediately ran and was seen throwing exhibit P3 away. Upon recovery of exhibit P3 by PW2, it was found to contain the offending 795.3 grammes of cannabis. [3] The crux of this appeal revolves on the issue whether the accused/Respondent, without the aid of the statutory presumption under section 37(d) of the Act of “deemed possession” had knowledge of the nature of the dangerous drugs. [4] The learned DPP submitted that the Court of Appeal was of the view that just because the Respondent took flight and threw the plastic bag containing the dangerous drugs did not point to the one and only conclusion that he knew what he was carrying was the dangerous drug, cannabis. In the circumstances, other inferences can be made such as that he did so because he may be carrying any other prohibited goods other than cannabis or that he was panicky and therefore chose to run away and throw away the bag he was carrying more so, in this case, when the police who confronted him were not in uniform. (See: paragraph 11 of the Grounds of Judgment of the Court of Appeal). [5] It is the learned DPP’s submission that the prosecution is not relying on Section 37(d) of the Act for the presumption of knowledge against the Respondent. The prosecution is basing its case simply on the conduct of the Respondent which offers no other explanation but that he knew he was carrying dangerous drugs. [6] Learned counsel for the Respondent however submitted that the trial Judge found that “it is not necessary for the prosecution to prove that the accused had knowledge of the nature of the drugs. It follows that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis.” (See page 22 – 23 of the Appeal Record). He then referred to several local

authorities which have interpreted that “actual possession” requires proof that the possessor must have known the nature of the drug which was being carried. (See: Tan Teck Chew v PP [2002] 2 MLJ 321 ; Taib Bin Mohamed v PP [2002] 3 MLJ 476 , 480-481 and Toh Su Kuan v PP [2005] 3 CLJ 740 , 744-745. [7] In the instant appeal, the learned trial Judge had said in his Grounds of Judgment (at page 11 of the Appeal Record) that, relying on the case of PP v Phua Keng Tong [1988] 2 MLJ 279 , as proof of knowledge is very often a matter of inference, the conduct of the Respondent prior to his arrest is brought into sharp focus. The fact that the accused was carrying exhibit P3 with its contents followed by the speed at which he ran and threw it upon being confronted by the police, show that there is a clear nexus between his conduct and the offence in question i.e. that he wanted to part possession with what constituted the offence. It is a clear indication of his guilty mind. This is sufficient to infer that the accused had knowledge of the existence of the dangerous drugs in exhibit P3. I agree with the learned trial Judge on this point. [8] In the case of Warner v Metropolitan Police Commissioner [1968] 2 ALL ER 356 , the appellant was tried on a charge that he had in his possession a substance specified in the schedule to the Drugs (Prevention of Misuse) Act 1964 namely 20,000 tablets containing amphetamine sulphate. Lord Reid at page 367, had this to say: “Further it would be pedantic to hold that it must be shown that the accused knew precisely which drugs he had in his possession. Ignorance of the law is no defence and in fact virtually everyone knows that there are prohibited drugs. So it would be quite sufficient to prove facts from which it would properly be inferred that the accused knew that he had a prohibited drug in his possession.” [9] The case of Abdullah Zawawi Bin Yusof v PP [1993] 3 MLJ 1 is distinguishable because in that case the Appellant took to his heels as soon as he had heard DPC Mohd Hashim’s announcement of the discovery of the wooden box containing a plastic bag wherein the cannabis was found. In the instant appeal, the Respondent already threw the plastic bag (P3) away even before its cannabis contents were discovered by the police. [10] I am also unable to agree with the Court of Appeal on its finding that on the facts of this case, that it could not be inferred the Respondent did have the knowledge that what he possessed was the dangerous drug, cannabis for reasons as stated earlier above. Clearly on the evidence before the trial Judge, the Respondent was in possession and having custody and control of the plastic bag which contained the cannabis. His running away and throwing away the plastic bag (P3) are the overt acts from which the learned trial Judge had correctly inferred that the Respondent knew the nature of the contents of the said plastic bag (P3) to be cannabis. The learned trial Judge also came to the conclusion that the Respondent’s defence was in the nature of a bare denial and doubted the credibility of his evidence that he was not carrying exhibit P3. As such he was unable to accept the defence advanced by the Respondent that PW2 was not at the scene as PW2 was cross-examined at length on the basis that he was at the scene. [11] The learned trial Judge had appropriately considered the defence and gave his reasons why he had rejected it. The statutory presumption of trafficking under section 37(da) is applicable in this case as the amount of cannabis is more than 200 grammes in weight. The Respondent was also held by the trial Judge to have failed to rebut the said presumption against him and that the prosecution had proved its case, beyond

reasonable doubt. [12] On the evidence available in this case I am of the view that the Court of Appeal had erred in disturbing the findings of facts by the trial Judge. For the reasons adumbrated above, I therefore allow this appeal and set aside the order of the Court of Appeal and restore the conviction and sentence imposed by the High Court.

Nurulhuda Nuraini bt Mohd Noor (Deputy Public Prosecutor, Jabatan Peguam Negara) for the appellant Edward Boon Tai Soon (Nik Mohamed Ikhwan with him) (Chooi & Co) for the respondent LOAD-DATE: 02/17/2009
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[2009] MLJU 0020 © 2009 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) Malayan Unreported Judgments Public Prosecutor v Reza Mohd Shah bin Ahmad Shah (Dissenting avail MLJU (09) 0005) FEDERAL COURT (PUTRAJAYA) RAYUAN JENAYAH NO 05-40-2005(W) DECIDED-DATE-1: 16 JANUARY 2009 ABDUL AZIZ BIN MOHAMAD, FCJ, HASHIM BIN DATO' HJ. YUSOFF, FCJ, ZAKI BIN TUN AZMI, PCA JUDGMENTBY: Abdul Aziz bin Mohamad, FCJ

JUDGMENT [1] In the High Court, the prosecution relied on evidence of actual knowledge to prove the element of knowledge that is necessary for possession in criminal law. The evidence relied on was that of the respondent, upon being aware of police presence, when their leader shouted “Police!”, immediately running away and throwing the plastic bag containing two packages of cannabis that he was carrying. The prosecution did not choose to rely on the presumption of knowledge in section 37(d) of the Dangerous Drugs Act 1952. That was because if they did, then, by reason of this court’s decision in Muhammed bin Hassan v Public Prosecutor [1990] 2 MLJ 273 , they would not have been able to rely also on the presumption of trafficking in section 37(da), arising from possession of the requisite amount of drug. [2] The presumption of knowledge in section 37(d) is in the following terms: (d) “custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug;”

[3] The judgment of the High Court is reported as Public Prosecutor v Reza Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13 . This is what the learned trial judge said at page 23 C-F: “The fact that the accused was carrying [the plastic bag] with its contents followed by the speed at which he ran and threw it upon being confronted show that there is a clear nexus between his conduct and the offence in question. He wanted to part possession with what constituted the offence. It is a clear indication of his guilty mind. This is sufficient to infer that the accused had knowledge of the existence of

the dangerous drugs in [the plastic bag] . . . The inference drawn in this case that the accused had knowledge of the existence of the dangerous drugs does not suggest that he knew that it was cannabis. With regard to the extent and nature of knowledge of the dangerous drugs that the prosecution must prove, I consider it necessary to reproduce what I had said in Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor at pp 420-421.” [4] There follows the passage reproduced from Mohd Farid, reported in [2002] 3 MLJ 401 , in which the learned trial judge began by saying, “It must be observed that in proving this element [of knowledge] the obligation of the prosecution is only to establish that the accused had knowledge . . . of the existence of the dangerous drug but not its qualities”. He then quoted a passage from the Singapore case of Sim Teck Ho v PP [2000] 4 SLR 39 , at pages 42-43, where Yong Pung How CJ, after quoting a passage from the speech of Lord Pearce in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 , at page 305, concluded that, as regards knowledge, proof of possession requires proof of “knowledge of the existence of the thing itself, that is the existence of the controlled drug, but not the name nor nature of the drug”. [5] Then following the end of the passage reproduced from Mohd Farid, the learned trial judge said, “Thus, it is not necessary for the prosecution to prove that the accused had knowledge of the nature of the drugs. It follows that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis.” [6] The grounds of judgment of the Court of Appeal are reported as Reza Mohd Shah Ahmad Shah v PP [2005] 4 CLJ 581 . The Court of Appeal took the view that the prosecution had to prove knowledge of the particular drug in question, that is cannabis, and said at page 585 d-e that “the issue is whether the appellant had the knowledge that he was carrying cannabis”. The Court of Appeal arrived at the following conclusion at page 587 g-h: “But in our view, just because the appellant took flight and threw the plastic bag containing dangerous drug does not point to one and only conclusion that he knew what he was carrying was the dangerous drug, cannabis. In the circumstances, other inferences can be made such as that he did so because he may be carrying any other prohibited goods other than cannabis or that he was panicky and therefore chose to run away and throw out the bag he was carrying more so, in this case, when the police who confronted him were not in uniform.” [7] The Court of Appeal therefore found that the prosecution had failed to prove actual knowledge but the court had recourse to the presumption of knowledge in section 37(d) and found the respondent guilty of possession under section 6 of the Act. Recourse being had to the presumption in section 37(d), it was not possible, because of Muhammed bin Hassan (supra), to also have recourse to the presumption of trafficking in section 37(da). [8] There are two aspects to the judgment of the Court of Appeal as regards knowledge. The first aspect is regarding the type or extent of knowledge that is required for proof of possession. To the Court of Appeal it must be knowledge of the particular drug in question, in this case cannabis. The learned DPP understood the learned trial judge to mean that the requisite knowledge need not be “as to the exact

nature or quality” of the drug, and maintained in this appeal that the learned trial judge was right. The second aspect is the view of the Court of Appeal that other inferences could be drawn from the respondent’s act of running away and throwing the plastic bag than that he knew he was carrying cannabis, such as that he knew he was carrying some other prohibited goods or that he became panicky when confronted by men not in police uniform. To the learned DPP that was mere speculation on the part of the Court of Appeal. Learned counsel for the respondent’s submission in this appeal has been confined to those two aspects. [9] The second aspect can be disposed of briefly. I think it is fanciful to say that the respondent took flight and threw the plastic bag because he probably knew that he was carrying some other prohibited goods. In the absence of any indication to the contrary, the inference must be that he knew that he was carrying what he was in fact carrying, namely, a prohibited drug. It is also in my judgment fanciful to admit the probability that the appellant acted as he did because he became panicky when confronted with men not in police uniform. If he had thought that they were, say, robbers pretending to be police officers in order to rob him of his belongings, he would have fled without throwing the plastic bag. [10] As regards the first aspect, learned counsel for the respondent submitted that this appeal by the Public Prosecutor revolved around the following “narrow question of legal interpretation” which he framed in his written submission: “For a Court to find an accused guilty for possession of dangerous drugs i.e. 'actual possession’ as understood in criminal law without the aid of the statutory presumption under section 37(d) of ‘deemed possession’, must the prosecution prove beyond a reasonable doubt that the accused had knowledge of the nature of the dangerous drugs (in addition to having knowledge of the existence of the dangerous drugs)?” [11] The question obviously arose from the learned trial judge’s finding that with proof that the respondent had knowledge that there existed dangerous drugs in the plastic bag, the prosecution did not also have to prove that the respondent had knowledge of the “nature” of the drugs. Obviously, in framing the question, the learned trial judge was construed as saying that to prove possession it is not necessary to prove knowledge of the “nature” of the thing possessed. But it is clear to me, after considering as a whole all that the learned trial judge said on the question of knowledge, as I have set out, including what was said by him and by Yong Pung How CJ in the passage reproduced from Mohd Farid, that was not what the learned trial judge meant. What he meant was that with proof of knowledge that what was in the plastic bag were dangerous drugs, the prosecution did not also have to prove that the respondent knew what type of dangerous drugs they were or their name or exact qualities. That was what he meant by the “nature” that the prosecution did not have to prove knowledge of. He did not mean to say that the prosecution did not have to prove knowledge of the “nature” of the drugs as dangerous drugs. That he did find the prosecution had proved when he spoke of knowledge of the existence of dangerous drugs in the plastic bag. He meant that the respondent knew that there were dangerous drugs in the plastic bag or, in other words, that the respondent knew that what the plastic bag contained were dangerous drugs. That was what the learned trial judge meant when he said that the respondent “wanted to part possession with what constituted the offence” and that it was “a clear indication of his guilty mind”. The respondent had a guilty mind because he knew that he had dangerous drugs in his

possession. [12] To the learned trial judge, therefore, for the prosecution to prove that the respondent was in possession of cannabis the prosecution need only prove, as regards knowledge, that the respondent had knowledge that what he was carrying were dangerous drugs. The prosecution did not also have to prove that he knew that the dangerous drugs were cannabis. Therefore once knowledge that the thing carried was dangerous drugs was proved, possession of the particular drug, that is cannabis, was proved. That was why the learned trial judge, while saying that proof by inference “that the accused had knowledge of the existence of the dangerous drugs does not suggest that he knew that it was cannabis”, nevertheless concluded “that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis”. [13] I am sure that the learned trial judge was not unaware of the authorities, such as those that I will be mentioning later, that say that possession in criminal law requires knowledge of the nature of the thing possessed and that he was not disagreeing with those authorities. In Mohd Farid, after the passage reproduced in his judgment in the present case, he had said, at page 421 H-I,in reference to Director of Public Prosecutions v Wishart Brooks [1974] AC 862 and Neo Koon Cheo v R [1959] MLJ 47 , “Both these cases support the proposition that knowledge of the nature of the drugs possessed can be inferred from the circumstances of the case”. He was speaking of proof by inference of knowledge of “the nature of the drugs possessed”. I think it is a matter of his understanding of what is meant by “nature of the drugs possessed”. When he said in the present case that the prosecution did not have to prove knowledge of the nature of the drugs he must have said it on a view of “nature” as meaning name or type or exact qualities. But if “nature” means nature as a dangerous drug, then, when he said that the accused had knowledge of the existence of the dangerous drugs, which I understand to mean that the accused knew that there were dangerous drugs in the plastic bag, the learned trial judge must be taken to be saying, consistently with the authorities, that the prosecution did have to prove, and did prove, knowledge of the nature of the dangerous drugs, but nature as dangerous drugs. [14] The “question of legal interpretation” that learned counsel for the respondent posed is that of the meaning of the word “nature” in section 37(d). As to why the meaning of a word in a statutory provision is relevant in this case that does not rely on the provision, this became clear as oral submission progressed. The respondent’s counsel contended that “nature” in section 37(d) means the particular type or name of the dangerous drug. On that basis he argued that to prove actual possession in a case that does not rely on the presumption in section 37(d), it must be proved that the accused knew the name or type of the dangerous drug concerned – as being knowledge of the “nature” of the drug – because if it were not so, the burden of proving possession in a case that does not rely on the presumption would be lower than that in a case that does. This is a fallacious argument. Even if, in a case that does not rely on the presumption, the knowledge that is necessary to be proven as knowledge of the nature of the drug is knowledge as to the name or actual type of the drug, the burden on the prosecution in a case that relies on the presumption will always be lower, because in such a case all that the prosecution would need to prove is custody or control of the thing containing the dangerous drug. [15] Learned counsel for the respondent submitted that the Dangerous Drugs Act 1952 being a penal statute, it should be construed strictly, and if there is any

ambiguity in the meaning of the word “nature” in section 37(d), the construction that is in favour of the accused should be favoured. But he did not cite any authorities on the meaning of the word “nature” in section 37(d), probably because there are none. Instead he cited the following five authorities. [16] In Tan Teck Chew v Public Prosecutor [2002] 2 MLJ 321 , K.C. Vohrah JCA said in the Court of Appeal, at page 324 G-H, “There was of course no finding of knowledge of heroin in the bag. The trial judge had to rely on s 37(d) . . . to infer as a presumption that he knew of the nature of the heroin”, and, at page 326 H-I, he spoke of the appellant failing to rebut the presumption in s 37(d) “that he knew that what was contained in the bag was heroin”. That case cannot, by those statements, be taken as authority for contending that “nature” in section 37(d) means the particular type or name of the dangerous drug because the question of the meaning of “nature” did not arise in that case. Since the dangerous drug that was the subject of the charge in that case was heroin it was natural to speak of knowledge as knowledge as to heroin. The same may be said of Taib bin Mohamad v Public Prosecutor [2002] 3 MLJ 477 where K.C. Vohrah JCA said in the Court of Appeal, at page 480 HI, “ . . . the judge should only have called the accused to make his defence on the charge of the possession of the cannabis based on the presumption under s 37(d) . . . that he knew that [sic] nature of the drug . . . ”, and, at page 481 H-I, “ . . . his defence . . . did not rebut the presumption of knowledge under s 37(d) . . . that he knew the nature of the material he was carrying was cannabis”. [17] In Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237 , the charge was of assisting in carrying on a public lottery and the question of possession concerned certain counterfoils. The case did not concern any statutory presumption of possession. Speaking of the mens rea aspect of possession, Thomson J, at page 239 (upper right), said, “ . . . it is necessary to prove that the person in possession knows the nature of the thing possessed” and added, as an example, “If . . . it was a lottery document it must be proved that he knew it was a lottery document”. The latter statement cannot be taken as authority for the proposition that in a drug case possession requires proof of knowledge of the particular drug in respect of which the accused is charged. That is because the statement does not involve the idea of a particular type of lottery document. Lottery document was spoken of as a general class, like dangerous drug. Applied to dangerous drug, that statement becomes “If . . . it was a dangerous drug, it must be proved that he knew it was a dangerous drug”, and not the type or name of the particular dangerous drug as well. [18] A similar situation is to be found in Toh Ah Loh and Mak Thim v Rex [1949] 15 MLJ 54 . It was a case of possession of ammunition in ammunition boxes. GordonSmith Ag. CJ said at page 55 that in order for possession to incriminate, the possessor “must know the nature of the thing possessed” and that as regards the accused in that case the jury must be satisfied that “he knew the boxes contained ammunition”. The case concerned ammunition as a general class and not any particular type of ammunition. [19] Of the five cases relied on by learned counsel for the respondent in support of his contention that “nature” in section 37(d) means the particular name or type of the dangerous drug concerned, Toh Su Kuan v PP [2005] 3 CLJ 740 , a drug case, is the only case which may be understood to rule that knowledge of the nature of the thing possessed must be exact or specific knowledge. In that case the prosecution did not rely on section 37(d) but sought to prove possession by evidence. The accused was found to carry 356 packets of heroin concealed at various parts of his body. The

learned trial judge held that the manner in which the packets were concealed indicated knowledge that the packets contained heroin. On appeal it was submitted on behalf of the accused that from the manner in which the packets were concealed the accused might be taken to have known that he was carrying some illicit substance but not its precise nature. The Court of Appeal agreed and held that the accused ought not to have been called to enter upon his defence. The Court of Appeal said, at page 746: “In our judgment, the manner in which the packets were fastened to the appellant’s person shows at the highest that he had knowledge the packets contained some prohibited substance, perhaps, drugs or perhaps some other substance which was unlawful to have in one’s possession. But it certainly does not prove that the appellant knew that the packets contained heroin, the drug which forms the subject matter of the charge. It follows from what we have said thus far that from the totality of the evidence led by the prosecution that the vital ingredient of mens rea possession required by s. 37(da)(i) had not been established. On that ground alone the learned judge ought not to have called the appellant to enter upon his defence. And this is a case where the learned deputy took the position that this was either a case of actual trafficking or no offence.” That decision was relied on by the Court of Appeal in the present case. [20] The learned DPP informed us that the Public Prosecutor’s appeal against that decision had been withdrawn because the warrant of arrest against the accused, who had been released following his success in the Court of Appeal, could not be executed. In my judgment, the decision was, with respect, an erroneous decision. Nik Hashim FCJ has also said so quite recently in Parlan bin Dadeh v Public Prosecutor [2008] 6 MLJ 19 . [21] In my judgment, where possession of a dangerous drug is concerned, to prove the element of guilty knowledge or mens rea the prosecution need only prove that the accused knew the nature of the particular dangerous drug that he was in possession of as a dangerous or prohibited drug. The prosecution need not also prove knowledge as to the name, type or exact qualities of the dangerous drug. When the authorities say that for proof of possession in criminal law it is necessary to prove that the possessor knew the nature of the thing possessed, they mean knowledge of what the thing essentially or basically is. I share the view of Taylor J, who said in Leow Nghee Lim v Reg. [1956] 22 MLJ 28 , at page 31 (upper left), “Without at least general knowledge there cannot be possession but there can be possession without full and exact knowledge”. [22] Not only is that, to my mind, a fair and just construction of what is meant by knowledge of the nature of the thing possessed, but were the meaning to be as may be inferred from the decision in Toh Su Kuan (supra), in cases of trafficking in a dangerous drug where the prosecution seek to rely on the presumption of trafficking by reason of possession of the requisite amount of the drug, such as the present and many other cases that are likely to arise, where guilty knowledge can only be inferred from circumstances, the accused will always be acquitted without their defence being called because it will always be argued that while the circumstances show that they knew they had in their possession a dangerous drug, the circumstances do not show beyond reasonable doubt that they knew what type of drug it was or its name or

exact qualities, and it would be virtually impossible to defeat the argument. In my judgment, therefore, the Court of Appeal erred in holding that the prosecution had to prove that the respondent knew that what he was carrying was actually cannabis. [23] As to the meaning of “nature” in section 37(d), I do not think it really matters what the extent of the meaning is, because the presumption is rebuttable. The moment custody or control of the thing containing the dangerous drug is established, knowledge of the nature of the drug is presumed. If nature means only nature as a dangerous drug, the accused is entitled to prove, if he can, that he did not know that the contents of the thing he was in custody or control of were a dangerous drug. If, as contended by learned counsel for the respondent, nature means only the name, type or exact qualities of the dangerous drug, or if it means also that besides nature as a dangerous drug, the accused is still entitled to prove, if he can, that he did not know that the contents of the thing that he was in custody or control of were a dangerous drug and it would inevitably follow that he did not know the name, type or exact qualities of the dangerous drug. [24] For the reasons that I have given I would allow the appeal, set aside the orders of the Court of Appeal and confirm the conviction and sentence by the High Court.

Nurulhuda Nuraini bt Mohd Noor (Deputy Public Prosecutor, Jabatan Peguam Negara) for the appellant Edmund Bon Tai Soon (Nik Mohamed Ikhwan with him) (Chooi & Co) for the respondent LOAD-DATE: 03/09/2009
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© 2008 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal PDF Print Format Public Prosecutor v Reza Mohd Shah bin Ahmad Shah [2009] 2 MLJ 490 CRIMINAL APPEAL NO 05–40 OF 2005(W) FEDERAL COURT (PUTRAJAYA) DECIDED-DATE-1: 16 JANUARY 2009 ZAKI AZMI CHIEF JUSTICE, ABDUL AZIZ MOHAMAD AND HASHIM YUSOFF FCJJ CATCHWORDS: Criminal Law - Dangerous Drugs Act (Malaysia) - s 37(d) - Trafficking - Presumption under s 37(d) of the Dangerous Drugs Act 1952 - Whether inference drawn from direct evidence sufficient to show possession - Whether knowledge proved Words and Phrases - ‘Nature’ - Whether ‘nature’ in s 37(d) of the Dangerous Drugs Act 1952 required prosecution to prove respondent knew name or type of dangerous drug concerned - Dangerous Drugs Act 1952 s 37(d) HEADNOTES: The accused/respondent was carrying in his right hand a plastic bag when he was apprehended by a Police Inspector. However, when the Police Inspector who was dressed in plain clothes shouted ‘police’, the respondent immediately started running and threw away the plastic bag that he was carrying. Upon recovery, the said plastic bag was found to contain 795.3g of cannabis, the dangerous drug. The respondent was thereafter charged with the offence of trafficking in 795.3g of cannabis. At the trial the prosecution relied on the evidence of actual knowledge to prove the element of knowledge that is necessary for possession in criminal law and did not choose to rely on the presumption of knowledge in s 37(d) of the Dangerous Drugs Act 1952 (‘the Act’). The respondent’s defence was in the nature of a bare denial. At the close of the trial, the respondent was convicted and sentenced to death by the High Court for the offence of trafficking. In his judgment the trial judge stated that the fact that the respondent was carrying the plastic bag with its contents followed by the speed at which he ran and threw it upon being confronted showed that there was a clear nexus between his conduct and the offence in question ie that he wanted to part possession with what constituted the offence. The trial judge therefore concluded that the

inferences drawn from the direct evidence were sufficient to show that the accused had possession of the cannabis and since he failed to rebut the statutory presumption of trafficking under s 37(da) the prosecution had proved its case beyond reasonable doubt. The respondent appealed to the Court of Appeal, which took the view that the prosecution had to prove knowledge of the particular [*491] drug in question, which in this case was cannabis, and that just because the respondent took flight and threw the plastic bag containing the dangerous drugs did not point to the one and only conclusion that he knew that what he was carrying was the dangerous drug, cannabis. Based on this the Court of Appeal found that the prosecution had failed to prove actual knowledge but the court had recourse to the presumption of knowledge in s 37(d) and found the respondent guilty of possession under s 6 of the Act. This was the prosecution’s appeal against that decision by the Court of Appeal. This appeal revolved on the issue as to whether the respondent, without the aid of the statutory presumption under s 37(d) of the Act of ‘deemed possession’ had knowledge of the nature of the dangerous drugs. Held, allowing the appeal and restoring the conviction and sentence imposed by the High Court: (1) (per Abdul Aziz Mohamad FCJ) There were two aspects to the judgment of the Court of Appeal as regards to knowledge. The first aspect was that it must be knowledge of the particular drug in question, in this case cannabis; while the second aspect was that other inferences could be drawn from the respondent’s act of running from the police and throwing away the plastic bag of cannabis such that he knew he was carrying some other prohibited goods or that he became panicky when confronted by men not in police uniform. The second aspect could be disposed by the fact that in the absence of any indication to the contrary, the inference must be that he knew he was in fact carrying, namely a prohibited drug. In addition, if he knew that they were say robbers pretending to be police officers in order to rob him he would have fled without throwing the plastic bag (see paras 8–9). (2) (per Abdul Aziz Mohamad FCJ) When the trial judge said that the prosecution did not have to prove that the respondent had knowledge of the ‘nature’ of the drugs, he meant that the prosecution did not have to prove knowledge of the ‘nature’ of the drugs as dangerous drugs. He meant that the respondent knew that there were dangerous drugs in the plastic bag and that because of this knowledge the respondent had a guilty mind. Therefore, according to the trial judge, for the prosecution to prove that the respondent was in possession of cannabis the prosecution needed to only prove, as regards knowledge, that the respondent had knowledge that what he was carrying were dangerous drugs. Thus, once knowledge that the thing carried was dangerous drugs was proved, possession of the particular drug, ie cannabis, was proved (see paras 11–12). (3) (per Abdul Aziz Mohamad FCJ) Where possession of a dangerous drug is concerned, to prove the element of guilty knowledge or mens rea [*492] the prosecution need only prove that the accused knew the nature of the particular dangerous drug that he was in possession of as a dangerous or prohibited drug. The prosecution need not also prove knowledge as to the name, type or exact qualities of the dangerous drug. This is a fair and just construction of what is meant by knowledge of the nature of the thing possessed and the Court of Appeal erred in holding that the prosecution had to prove that the respondent

knew that what he was carrying was actually cannabis (see paras 14, 21– 22). (4) (per Hashim Yusoff FCJ) The Court of Appeal erred in its finding that on the facts of this case it could not be inferred that the respondent did have the knowledge that what he possessed was the dangerous drug, cannabis. The trial judge had correctly inferred that the respondent, by his act of running away from the police and throwing away the plastic bag, had showed that he knew the nature of the contents of the said plastic bag to be cannabis. The trial judge had also appropriately considered the defence advanced by the respondent and gave his reasons why he rejected it (see paras 31, 34–35). Tertuduh/responden sedang membawa di tangan kanannya satu beg plastik ketika diberkas oleh seorang Inspektor Polis. Tetapi, apabila Inspektor Polis yang berpakaian preman menjerit ‘polis’, responden dengan segera melarikan diri dan membuang beg plastik yang sedang dibawanya. Apabila ditemui, beg plastik tersebut didapati mengandungi 395.3g kanabis, dadah berbahaya. Responden kemudiannya didakwa atas kesalahan mengedar 795.3g kanabis. Ketika perbicaraan pihak pendakwaan bergantung kepada keterangan pengetahuan sebenar untuk membuktikan elemen pengetahuan yang mana adalah penting bagi milikan di dalam undang-undang jenayah dan tidak memilih untuk bergantung kepada anggapan pengetahuan di dalam s 37(d) Akta Dadah Berbahaya 1952 (‘Akta’). Pembelaan responden adalah bersifat penafian kosong. Di akhir perbicaraan, responden telah disabitkan dan dihukum mati oleh Mahkamah Tinggi atas kesalahan mengedar. Di dalam penghakimannya, hakim bicara menyatakan bahawa fakta bahawa responden membawa beg plastik bersama dengan kandungannya diikuti dengan kepantasan ketika dia berlari dan membuangnya apabila didatangi menunjukkan bahawa terdapat hubungan di antara tindakannya dan kesalahan yang dipersoalkan iaitu bahawa dia hendak melepaskan diri daripada barang yang membentuk kesalahan tersebut. Hakim bicara oleh itu memutuskan bahawa inferens yang dibuat daripada keterangan terus adalah cukup untuk membuktikan bahawa tertuduh mempunyai milikan kanabis dan oleh kerana responden telah gagal untuk mematahkan anggapan statutori mengedar di bawah s 37(da), pihak pendakwaan telah membuktikan kesnya melangkaui batas keraguan yang munasabah. Responden merayu kepada [*493] Mahkamah Rayuan, yang berpandangan bahawa pihak pendakwan perlu membuktikan pengetahuan terhadap butiran dadah yang dipersoalkan, yang mana di dalam kes ini adalah kanabis, dan hanya kerana responden melarikan diri dan membuang beg plastik yang mengandungi dadah berbahaya tidak menunjukkan satu-satunya kesimpulan bahawa responden mengetahui bahawa apa yang dibawanya adalah dadah berbahaya, kanabis. Berdasarkan perkara ini Mahkamah Rayuan mendapati bahawa pihak pendakwaan telah gagal untuk membuktikan pengetahuan sebenar tetapi mahkamah telah menggunakan anggapan pengetahuan di dalam s 37(da) dan mendapati responden bersalah atas milikan di bawah s 6 Akta. Ini adalah rayuan pihak pendakwaan terhadap keputusan Mahkamah Rayuan. Rayuan ini berkisarkan atas isu sama ada responden, tanpa bantuan anggapan statutori di bawah s 37(d) Akta ‘dianggap memiliki’ mempunyai pengetahuan mengenai sifat dadah berbahaya tersebut. Diputuskan, membenarkan rayuan dan mengekalkan sabitan dan hukuman yang dikenakan oleh Mahkamah Tinggi: (1) (oleh Abdul Aziz Mohamad HMP) Terdapat dua aspek penghakiman Mahkamah Rayuan berkenaan dengan pengetahuan. Aspek pertama adalah ianya mestilah pengetahuan butiran mengenai dadah yang dipersoalkan,

dalam kes ini adalah kanabis; sementara itu aspek kedua adalah inferens lain yang boleh dilihat daripada tindakan responden yang lari daripada polis dan membuang beg plastik kanabis dengan itu responden tahu yang dia membawa barang larangan yang lain atau dia menjadi panik apabila didatangi oleh lelaki yang tidak memakai pakaian seragam polis. Aspek kedua boleh ditentukan dengan fakta bahawa dalam ketiadaan mana-mana petunjuk kepada yang bertentangan, inferens mestilah bahawa responden tahu bahawa dia sebenarnya membawa, dadah berbahaya. Selanjutnya, jika responden mengetahui bahawa mereka adalah perompak yang menyamar sebagai pegawai polis yang ingin merompaknya responden seharusnya melarikan diri tanpa membuang beg plastik tersebut (lihat perenggan 8–9) . (2) (oleh Abdul Aziz Mohamad HMP) Apabila hakim bicara menyatakan bahawa pihak pendakwaan tidak mempunyai bukti bahawa responden mempunyai pengetahuan mengenai ‘sifat’ dadah, maksud beliau bahawa pihak pendakwaan tidak perlu membuktikan pengetahuan berkenaan dengan ‘ sifat’ dadah sebagai dadah berbahaya. Beliau maksudkan bahawa responden mengetahui bahawa terdapat dadah berbahaya di dalam beg plastik dan disebabkan pengetahuan ini responden mempunyai minda bersalah. Oleh itu, menurut hakim bicara, bagi pihak pendakwaan untuk membuktikan bahawa responden [*494] adalah dalam milikan kanabis pihak pendakwaan hanya perlu membuktikan, berkenaan dengan pengetahuan, bahawa responden mempunyai pengetahuan bahawa apa yang dibawanya adalah dadah berbahaya. Oleh itu, apabila pengetahuan bahawa barangan yang dibawa adalah dadah berbahaya telah dibuktikan, milikan dadah tertentu tersebut, iaitu kanabis telah dibuktikan (lihat perenggan 11–12) (3) (oleh Abdul Aziz Mohamad HMP) Di mana berkenaan dengan milikan dadah, untuk membuktikan elemen pengetahuan bersalah atau mens rea, pihak pendakwaan hanya perlu membuktikan bahawa tertuduh mengetahui sifat tertentu dadah berbahaya tersebut bahawa tertuduh adalah dalam milikan dadah berbahaya atau dadah yang diharamkan. Pihak pendakwaan juga tidak perlu membuktikan pengetahuan berkenaan dengan nama, jenis atau kualiti sebenar dadah berbahaya. Ini adalah pentafsiran yang adil dan saksama berkenaan dengan maksud pengetahuan sifat barangan yang dimiliki dan Mahkamah Rayuan telah terkhilaf dalam memutuskan bahawa pihak pendakwaan perlu membuktikan bahawa responden tahu bahawa apa yang dibawanya adalah kanabis (lihat perenggan 14, 21–22). (4) (oleh Hashim Yusoff HMP) Mahkamah Rayuan telah terkhilaf di dalam keputusannya bahawa atas fakta kes ini ianya tidak boleh disimpulkan bahawa responden mempunyai pengetahuan bahawa apa yang dimilikinya adalah dadah berbahaya iaitu kanabis. Hakim bicara membuat kesimpulan yang betul bahawa responden, dengan tindakannya melarikan diri daripada polis dan membuang beg plastik telah menunjukkan bahawa dia mengetahui sifat kandungan beg plastik tersebut adalah kanabis. Hakim bicara juga dengan sewajarnya mempertimbangkan pembelaan yang dikemukakan oleh responden dan memberikan alasan mengapa beliau menolaknya (lihat perenggan 31, 34–35). Notes For cases on s 37(d) of the Dangerous Drugs Act, see 4 Mallal’s Digest (4th Ed, 2005 Reissue) paras 187–193.

Cases referred to Abdullah Zawawi bin Yusof v PP [1993] 3 MLJ 1, SC Chan Pean Leon v PP [1956] MLJ 237, HC Director of Public Prosecutions v Brooks (Wishart) [1974] AC 862, PC Leow Nghee Lim v Reg [1956] MLJ 28, HC Muhammed bin Hassan v PP [1998] 2 MLJ 273, FC Neo Koon Cheo v R [1959] MLJ 47, HC Parlan bin Dadeh v PP [2008] 6 MLJ 19, FC PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401, HC [*495] PP v Phua Keng Tong [1986] 2 MLJ 279, HC PP v Reza Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13, HC Reza Mohd Shah bin Ahmad Shah v PP [2006] 2 MLJ 223; [2005] 4 CLJ 581, CA Sim Teck Ho v PP [2000] 4 SLR 39, CA Taib bin Mohamad v PP [2002] 3 MLJ 476, CA Tan Teck Chew v PP [2002] 2 MLJ 321, CA Toh Ah Loh and Mak Thim v Rex [1949] MLJ 54, CA Toh Su Kuan v PP [2005] 3 CLJ 740, CA Warner v Metropolitan Police Commissioner [1968] 2 All ER 356; [1969] 2 AC 256, HL Legislation referred to Dangerous Drugs Act 1952ss 6, 37(d), (da), 39A(2), B(2) Drugs (Prevention of Misuse) Act 1964 [UK] Appeal from: Criminal Appeal No W-05–34 of 2002 (Court of Appeal, Putrajaya)

Nurulhuda Nuraini bt Mohd Noor (Deputy Public Prosecutor, Attorney General’s Chambers) for the appellant. Edward Boon Tai Soon (Nik Mohamed Ikhwan with him) (Chooi & Co) for the respondent. Abdul Aziz Mohamad FCJ:: [1] In the High Court, the prosecution relied on evidence of actual knowledge to prove the element of knowledge that is necessary for possession in criminal law. The evidence relied on was that of the respondent, upon being aware of police presence, when their leader shouted ‘Police!’, immediately running away and throwing the plastic bag containing two packages of cannabis that he was carrying. The prosecution did not choose to rely on the presumption of knowledge in s 37(d) of the Dangerous Drugs Act 1952 (‘the Act’). That was because if they did, then, by reason of this court’s decision in Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273, they would not have been able to rely also on the presumption of trafficking in s 37(da), arising from possession of the requisite amount of drug. [2] The presumption of knowledge in s 37(d) is in the following terms: (d) any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until

the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug. [*496] [3] The judgment of the High Court is reported as Public Prosecutor v Reza Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13. This is what the learned trial judge said at p 23C –F: The fact that the accused was carrying (the plastic bag) with its contents followed by the speed at which he ran and threw it upon being confronted show that there is a clear nexus between his conduct and the offence in question. He wanted to part possession with what constituted the offence. It is a clear indication of his guilty mind. This is sufficient to infer that the accused had knowledge of the existence of the dangerous drugs in (the plastic bag)… The inference drawn in this case that the accused had knowledge of the existence of the dangerous drugs does not suggest that he knew that it was cannabis. With regard to the extent and nature of knowledge of the dangerous drugs that the prosecution must prove, I consider it necessary to reproduce what I had said in Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor at pp 420–421. [4] There follows the passage reproduced from, Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401, in which the learned trial judge began by saying, ‘It must be observed that in proving this element (of knowledge) the obligation of the prosecution is only to establish that the accused had knowledge … of the existence of the dangerous drug but not its qualities’. He then quoted a passage from the Singapore case of Sim Teck Ho v Public Prosecutor [2000] 4 SLR 39, at pp 42–43, where Yong Pung How CJ after quoting a passage from the speech of Lord Pearce in Warner v Metropolitan Police Commissioner [1969] 2 AC 256, at p 305, concluded that, as regards knowledge, proof of possession requires proof of ‘knowledge of the existence of the thing itself, that is the existence of the controlled drug, but not the name nor nature of the drug’. [5] Then following the end of the passage reproduced from Mohd Farid, the learned trial judge said, ‘Thus, it is not necessary for the prosecution to prove that the accused had knowledge of the nature of the drugs. It follows that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis’. [6] The grounds of judgment of the Court of Appeal are reported as Reza Mohd Shah bin Ahmad Shah v Public Prosecutor [2006] 2 MLJ 223; [2005] 4 CLJ 581. The Court of Appeal took the view that the prosecution had to prove knowledge of the particular drug in question, that is cannabis, and said at p 585d–e that ‘the issue is whether the appellant had the knowledge that he was carrying cannabis’. The Court of Appeal arrived at the following conclusion at p 587g–h: But in our view, just because the appellant took flight and threw the plastic bag containing dangerous drug does not point to one and only conclusion that he knew what he was carrying was the dangerous drug, cannabis. In the [*497] circumstances, other inferences can be

made such as that he did so because he may be carrying any other prohibited goods other than cannabis or that he was panicky and therefore chose to run away and throw out the bag he was carrying more so, in this case, when the police who confronted him were not in uniform. [7] The Court of Appeal therefore found that the prosecution had failed to prove actual knowledge but the court had recourse to the presumption of knowledge in s 37(d) and found the respondent guilty of possession under s 6 of the Act. Recourse being had to the presumption in s 37(d), it was not possible, because of Muhammed bin Hassan, to also have recourse to the presumption of trafficking in s 37(da). [8] There are two aspects to the judgment of the Court of Appeal as regards knowledge. The first aspect is regarding the type or extent of knowledge that is required for proof of possession. To the Court of Appeal it must be knowledge of the particular drug in question, in this case cannabis. The learned DPP understood the learned trial judge to mean that the requisite knowledge need not be ‘as to the exact nature or quality’ of the drug, and maintained in this appeal that the learned trial judge was right. The second aspect is the view of the Court of Appeal that other inferences could be drawn from the respondent’s act of running away and throwing the plastic bag than that he knew he was carrying cannabis, such as that he knew he was carrying some other prohibited goods or that he became panicky when confronted by men not in police uniform. To the learned DPP that was mere speculation on the part of the Court of Appeal. Learned counsel for the respondent’s submission in this appeal has been confined to those two aspects. [9] The second aspect can be disposed of briefly. I think it is fanciful to say that the respondent took flight and threw the plastic bag because he probably knew that he was carrying some other prohibited goods. In the absence of any indication to the contrary, the inference must be that he knew that he was carrying what he was in fact carrying, namely, a prohibited drug. It is also in my judgment fanciful to admit the probability that the appellant acted as he did because he became panicky when confronted with men not in police uniform. If he had thought that they were, say, robbers pretending to be police officers in order to rob him of his belongings, he would have fled without throwing the plastic bag. [10] As regards the first aspect, learned counsel for the respondent submitted that this appeal by the public prosecutor revolved around the following ‘narrow question of legal interpretation’ which he framed in his written submission: [*498] For a court to find an accused guilty for possession of dangerous drugs ie ‘actual possession’ as understood in criminal law without the aid of the statutory presumption under s 37(d) of ‘deemed possession’, must the prosecution prove beyond a reasonable doubt that the accused had knowledge of the nature of the dangerous drugs (in addition to having knowledge of the existence of the dangerous drugs)? [11] The question obviously arose from the learned trial judge’s finding that with proof that the respondent had knowledge that there existed dangerous drugs in the plastic bag, the prosecution did not also have to prove that the respondent had knowledge of the ‘nature’ of the drugs. Obviously, in framing the question, the learned

trial judge was construed as saying that to prove possession it is not necessary to prove knowledge of the ‘nature’ of the thing possessed. But it is clear to me, after considering as a whole all that the learned trial judge said on the question of knowledge, as I have set out, including what was said by him and by Yong Pung How CJ in the passage reproduced from Mohd Farid, that was not what the learned trial judge meant. What he meant was that with proof of knowledge that what was in the plastic bag were dangerous drugs, the prosecution did not also have to prove that the respondent knew what type of dangerous drugs they were or their name or exact qualities. That was what he meant by the ‘nature’ that the prosecution did not have to prove knowledge of. He did not mean to say that the prosecution did not have to prove knowledge of the ‘nature’ of the drugs as dangerous drugs. That he did find the prosecution had proved when he spoke of knowledge of the existence of dangerous drugs in the plastic bag. He meant that the respondent knew that there were dangerous drugs in the plastic bag or, in other words, that the respondent knew that what the plastic bag contained were dangerous drugs. That was what the learned trial judge meant when he said that the respondent ‘wanted to part possession with what constituted the offence’ and that it was ‘a clear indication of his guilty mind’. The respondent had a guilty mind because he knew that he had dangerous drugs in his possession. [12] To the learned trial judge, therefore, for the prosecution to prove that the respondent was in possession of cannabis the prosecution need only prove, as regards knowledge, that the respondent had knowledge that what he was carrying were dangerous drugs. The prosecution did not also have to prove that he knew that the dangerous drugs were cannabis. Therefore once knowledge that the thing carried was dangerous drugs was proved, possession of the particular drug, that is cannabis, was proved. That was why the learned trial judge, while saying that proof by inference ‘that the accused had knowledge of the existence of the dangerous drugs does not suggest that he [*499] knew that it was cannabis’, nevertheless concluded ‘that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis’. [13] I am sure that the learned trial judge was not unaware of the authorities, such as those that I will be mentioning later, that say that possession in criminal law requires knowledge of the nature of the thing possessed and that he was not disagreeing with those authorities. In Mohd Farid, after the passage reproduced in his judgment in the present case, he had said, at p 421H –I, in reference to Director of Public Prosecutions v Wishart Brooks [1974] AC 862 and Neo Koon Cheo v R [1959] MLJ 47, ‘Both these cases support the proposition that knowledge of the nature of the drugs possessed can be inferred from the circumstances of the case’. He was speaking of proof by inference of knowledge of ‘the nature of the drugs possessed’. I think it is a matter of his understanding of what is meant by ‘nature of the drugs possessed’. When he said in the present case that the prosecution did not have to prove knowledge of the nature of the drugs he must have said it on a view of ‘nature’ as meaning name or type or exact qualities. But if ‘nature’ means nature as a dangerous drug, then, when he said that the accused had knowledge of the existence of the dangerous drugs, which I understand to mean that the accused knew that there were dangerous drugs in the plastic bag, the learned trial judge must be taken to be saying, consistently with the authorities, that the prosecution did have to prove, and did prove, knowledge of the nature of the dangerous drugs, but nature as dangerous drugs.

[14] The ‘question of legal interpretation’ that learned counsel for the respondent posed is that of the meaning of the word ‘nature’ in s 37(d). As to why the meaning of a word in a statutory provision is relevant in this case that does not rely on the provision, this became clear as oral submission progressed. The respondent’s counsel contended that ‘nature’ in s 37(d) means the particular type or name of the dangerous drug. On that basis he argued that to prove actual possession in a case that does not rely on the presumption in s 37(d), it must be proved that the accused knew the name or type of the dangerous drug concerned — as being knowledge of the ‘nature’ of the drug — because if it were not so, the burden of proving possession in a case that does not rely on the presumption would be lower than that in a case that does. This is a fallacious argument. Even if, in a case that does not rely on the presumption, the knowledge that is necessary to be proven as knowledge of the nature of the drug is knowledge as to the name or actual type of the drug, the burden on the prosecution in a case that relies on the presumption will always be lower, because in such a case all that the prosecution would need to prove is custody or control of the thing containing the dangerous drug. [*500] [15] Learned counsel for the respondent submitted that the Dangerous Drugs Act 1952 being a penal statute, it should be construed strictly, and if there is any ambiguity in the meaning of the word ‘nature’ in s 37(d), the construction that is in favour of the accused should be favoured. But he did not cite any authorities on the meaning of the word ‘nature’ in s 37(d), probably because there are none. Instead he cited the following five authorities. [16] In Tan Teck Chew v Public Prosecutor [2002] 2 MLJ 321, KC Vohrah JCA said in the Court of Appeal, at p 324G –H, ‘There was of course no finding of knowledge of heroin in the bag. The trial judge had to rely on s 37(d) … to infer as a presumption that he knew of the nature of the heroin’, and, at p 326H –I, he spoke of the appellant failing to rebut the presumption in s 37(d) ‘that he knew that what was contained in the bag was heroin’. That case cannot, by those statements, be taken as authority for contending that ‘nature’ in s 37(d) means the particular type or name of the dangerous drug because the question of the meaning of ‘nature’ did not arise in that case. Since the dangerous drug that was the subject of the charge in that case was heroin it was natural to speak of knowledge as knowledge as to heroin. The same may be said of Taib bin Mohamad v Public Prosecutor [2002] 3 MLJ 476 where KC Vohrah JCA said in the Court of Appeal, at p 480H –I, ‘… the judge should only have called the accused to make his defence on the charge of the possession of the cannabis based on the presumption under s 37(d) … that he knew that (sic) nature of the drug …’, and, at p 481H –I, ‘… his defence … did not rebut the presumption of knowledge under s 37(d) … that he knew the nature of the material he was carrying was cannabis’. [17] In Chan Pean Leon v Public Prosecutor [1956] MLJ 237, the charge was of assisting in carrying on a public lottery and the question of possession concerned certain counterfoils. The case did not concern any statutory presumption of possession. Speaking of the mens rea aspect of possession, Thomson J at p 239 (upper right), said, ‘… it is necessary to prove that the person in possession knows the nature of the thing possessed’ and added, as an example, ‘If … it was a lottery document it must be proved that he knew it was a lottery document’. The latter statement cannot be taken as authority for the proposition that in a drug case possession requires proof of knowledge of the particular drug in respect of which the

accused is charged. That is because the statement does not involve the idea of a particular type of lottery document. Lottery document was spoken of as a general class, like dangerous drug. Applied to dangerous drug, that statement becomes ‘If … it was a dangerous drug, it must be proved that he knew it was a dangerous drug’, and not the type or name of the particular dangerous drug as well. [*501] [18] A similar situation is to be found in Toh Ah Loh and Mak Thim v Rex [1949] MLJ 54. It was a case of possession of ammunition in ammunition boxes. Gordon-Smith Ag CJ said at p 55 that in order for possession to incriminate, the possessor ‘must know the nature of the thing possessed’ and that as regards the accused in that case the jury must be satisfied that ‘he knew the boxes contained ammunition’. The case concerned ammunition as a general class and not any particular type of ammunition. [19] Of the five cases relied on by learned counsel for the respondent in support of his contention that ‘nature’ in s 37(d) means the particular name or type of the dangerous drug concerned, Toh Su Kuan v Public Prosecutor [2005] 3 CLJ 740, a drug case, is the only case which may be understood to rule that knowledge of the nature of the thing possessed must be exact or specific knowledge. In that case the prosecution did not rely on s 37(d) but sought to prove possession by evidence. The accused was found to carry 356 packets of heroin concealed at various parts of his body. The learned trial judge held that the manner in which the packets were concealed indicated knowledge that the packets contained heroin. On appeal it was submitted on behalf of the accused that from the manner in which the packets were concealed the accused might be taken to have known that he was carrying some illicit substance but not its precise nature. The Court of Appeal agreed and held that the accused ought not to have been called to enter upon his defence. The Court of Appeal said, at p 746: In our judgment, the manner in which the packets were fastened to the appellant’s person shows at the highest that he had knowledge the packets contained some prohibited substance, perhaps, drugs or perhaps some other substance which was unlawful to have in one’s possession. But it certainly does not prove that the appellant knew that the packets contained heroin, the drug which forms the subject matter of the charge. It follows from what we have said thus far that from the totality of the evidence led by the prosecution that the vital ingredient of mens rea possession required by s 37(da)(i) had not been established. On that ground alone the learned judge ought not to have called the appellant to enter upon his defence. And this is a case where the learned deputy took the position that this was either a case of actual trafficking or no offence. That decision was relied on by the Court of Appeal in the present case. [20] The learned DPP informed us that the public prosecutor’s appeal against that decision had been withdrawn because the warrant of arrest against the accused, who had been released following his success in the Court of Appeal, could not be executed. In my judgment, the decision was, with respect, an erroneous decision. Nik Hashim FCJ has also said so quite recently in Parlan bin Dadeh v Public Prosecutor [2008] 6 MLJ 19.

[*502] [21] In my judgment, where possession of a dangerous drug is concerned, to prove the element of guilty knowledge or mens rea the prosecution need only prove that the accused knew the nature of the particular dangerous drug that he was in possession of as a dangerous or prohibited drug. The prosecution need not also prove knowledge as to the name, type or exact qualities of the dangerous drug. When the authorities say that for proof of possession in criminal law it is necessary to prove that the possessor knew the nature of the thing possessed, they mean knowledge of what the thing essentially or basically is. I share the view of Taylor J who said in Leow Nghee Lim v Reg [1956] MLJ 28, at p 31 (upper left), ‘Without at least general knowledge there cannot be possession but there can be possession without full and exact knowledge’. [22] Not only is that, to my mind, a fair and just construction of what is meant by knowledge of the nature of the thing possessed, but were the meaning to be as may be inferred from the decision in Toh Su Kuan, in cases of trafficking in a dangerous drug where the prosecution seek to rely on the presumption of trafficking by reason of possession of the requisite amount of the drug, such as the present and many other cases that are likely to arise, where guilty knowledge can only be inferred from circumstances, the accused will always be acquitted without their defence being called because it will always be argued that while the circumstances show that they knew they had in their possession a dangerous drug, the circumstances do not show beyond reasonable doubt that they knew what type of drug it was or its name or exact qualities, and it would be virtually impossible to defeat the argument. In my judgment, therefore, the Court of Appeal erred in holding that the prosecution had to prove that the respondent knew that what he was carrying was actually cannabis. [23] As to the meaning of ‘nature’ in s 37(d), I do not think it really matters what the extent of the meaning is, because the presumption is rebuttable. The moment custody or control of the thing containing the dangerous drug is established, knowledge of the nature of the drug is presumed. If nature means only nature as a dangerous drug, the accused is entitled to prove, if he can, that he did not know that the contents of the thing he was in custody or control of were a dangerous drug. If, as contended by learned counsel for the respondent, nature means only the name, type or exact qualities of the dangerous drug, or if it means also that besides nature as a dangerous drug, the accused is still entitled to prove, if he can, that he did not know that the contents of the thing that he was in custody or control of were a dangerous drug and it would inevitably follow that he did not know the name, type or exact qualities of the dangerous drug. [*503] [24] For the reasons that I have given I would allow the appeal, set aside the orders of the Court of Appeal and confirm the conviction and sentence by the High Court. Hashim Yusoff FCJ:: [25] The respondent was convicted and sentenced to death by the High Court for an offence of trafficking 795.3g of cannabis. On appeal, the Court of Appeal substituted the conviction under s 39B(2) of the Act with one under s 6 of the Act and imposed a sentence of 18 years imprisonment with effect from his date of arrest ie 14 August

2000, plus the minimum of ten strokes of whipping under s 39A(2) of the Act. The public prosecutor is now appealing against the decision of the Court of Appeal. [26] The brief facts are quite straight forward. The respondent was seen by Inspector Mohamad Alpiyang bin Ali (‘PW2 ’) carrying in his right hand exh P3 (‘P3’), a plastic bag for some distance. When PW2 shouted ‘police’, the respondent immediately ran and was seen throwing exh P3 away. Upon recovery of exh P3 by PW2, it was found to contain the offending 795.3g of cannabis. [27] The crux of this appeal revolves on the issue whether the accused/respondent, without the aid of the statutory presumption under s 37(d) of the Act of ‘deemed possession’ had knowledge of the nature of the dangerous drugs. [28] The learned DPP submitted that the Court of Appeal was of the view that just because the respondent took flight and threw the plastic bag containing the dangerous drugs did not point to the one and only conclusion that he knew what he was carrying was the dangerous drug, cannabis. In the circumstances, other inferences can be made such as that he did so because he may be carrying any other prohibited goods other than cannabis or that he was panicky and therefore chose to run away and throw away the bag he was carrying more so, in this case, when the police who confronted him were not in uniform (see para 11 of the grounds of judgment of the Court of Appeal). [29] It is the learned DPP’s submission that the prosecution is not relying on s 37(d) of the Act for the presumption of knowledge against the respondent. The prosecution is basing its case simply on the conduct of the respondent which offers no other explanation but that he knew he was carrying dangerous drugs. [*504] [30] Learned counsel for the respondent however submitted that the trial judge found that ‘it is not necessary for the prosecution to prove that the accused had knowledge of the nature of the drugs. It follows that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis’ (see pp 22–23 of the appeal record). He then referred to several local authorities which have interpreted that ‘actual possession’ requires proof that the possessor must have known the nature of the drug which was being carried (see Tan Teck Chew v PP [2002] 2 MLJ 321; Taib bin Mohamed v PP [2002] 3 MLJ 476, at pp 480–481 and Toh Su Kuan v Public Prosecutor [2005] 3 CLJ 740, at pp 744–745. [31] In the instant appeal, the learned trial judge had said in his grounds of judgment (at p 11 of the appeal record) that, relying on the case of Public Prosecutor v Phua Keng Tong [1986] 2 MLJ 279, as proof of knowledge is very often a matter of inference, the conduct of the respondent prior to his arrest is brought into sharp focus. The fact that the accused was carrying exh P3 with its contents followed by the speed at which he ran and threw it upon being confronted by the police, show that there is a clear nexus between his conduct and the offence in question ie that he wanted to part possession with what constituted the offence. It is a clear indication of his guilty mind. This is sufficient to infer that the accused had knowledge of the existence of the dangerous drugs in exh P3. I agree with the learned trial judge on this point. [32] In the case of Warner v Metropolitan Police Commissioner [1968] 2 All ER 356,

the appellant was tried on a charge that he had in his possession a substance specified in the schedule to the Drugs (Prevention of Misuse) Act 1964 namely 20,000 tablets containing amphetamine sulphate. Lord Reid at p 367, had this to say: ‘Further it would be pedantic to hold that it must be shown that the accused knew precisely which drugs he had in his possession. Ignorance of the law is no defence and in fact virtually everyone knows that there are prohibited drugs. So it would be quite sufficient to prove facts from which it would properly be inferred that the accused knew that he had a prohibited drug in his possession’. [33] The case of Abdullah Zawawi bin Yusof v Public Prosecutor [1993] 3 MLJ 1 is distinguishable because in that case the appellant took to his heels as soon as he had heard DPC Mohd Hashim’s announcement of the discovery of the wooden box containing a plastic bag wherein the cannabis was found. In the instant appeal, the respondent already threw the plastic bag (P3) away even before its cannabis contents were discovered by the police. [34] I am also unable to agree with the Court of Appeal on its finding that on the facts of this case, that it could not be inferred the respondent did have the knowledge that what he possessed was the dangerous drug, cannabis for [*505] reasons as stated earlier above. Clearly on the evidence before the trial judge, the respondent was in possession and having custody and control of the plastic bag which contained the cannabis. His running away and throwing away the plastic bag (P3) are the overt acts from which the learned trial judge had correctly inferred that the respondent knew the nature of the contents of the said plastic bag (P3) to be cannabis. The learned trial judge also came to the conclusion that the respondent’s defence was in the nature of a bare denial and doubted the credibility of his evidence that he was not carrying exh P3. As such he was unable to accept the defence advanced by the respondent that PW2 was not at the scene as PW2 was cross-examined at length on the basis that he was at the scene. [35] The learned trial judge had appropriately considered the defence and gave his reasons why he had rejected it. The statutory presumption of trafficking under s 37(da) is applicable in this case as the amount of cannabis is more than 200g in weight. The respondent was also held by the trial judge to have failed to rebut the said presumption against him and that the prosecution had proved its case, beyond reasonable doubt. [36] On the evidence available in this case I am of the view that the Court of Appeal had erred in disturbing the findings of facts by the trial judge. For the reasons adumbrated above, I therefore allow this appeal and set aside the order of the Court of Appeal and restore the conviction and sentence imposed by the High Court. ORDER: Appeal allowed. Court of Appeal order set aside. High Court’s conviction and sentence affirmed. LOAD-DATE: 04/10/2009
Search Terms [(public prosecutor v mohd reza)](28) View search details Source [Malayan Law Journal]

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