Case Brief

1. Citation: [2015]3MLJ 134

2. Case Name: Low Thiam

Teck V Public Prosecutor

3. Court name: Court of Appeal

Putrajaya

4. Date of decision :15

September 2014

5. Prior proceeding: The

Appellant was found guilty for trafficking 9.8762g of drugs of heroin and was sentence to
death by the High Court. He then appealed.

6. Facts: The Appellant (Low)

and two others were charged with an offence under S. 39B (1)(a) of DDA 1952 read with
Section 34 of the Penal Code but were acquitted and discharged at the end of the prosecution
when the trial judge ruled there was doubt over the total weight of the heroine involved. The
prosecution appealed against the appellant’s acquittal. The appeal was allowed and the
Appellant was asked to enter defence. During the defence stage, the Appellant had submitted,
he was only driving the car as instructed by his employer, the second accused. He did not
recognize the third accused nor had any knowledge of the contents of the three bags. He also
submitted there were no bags placed in between the two front seats of the car at the material
time. He was surprised when a person whom identified himself as a police officer
approached him while drawing a pistol against him when he was standing at the lift area of
the hotel. The trial court dismissed the Appellant’s defence as a bare denial and concluded
that the he had knowledge, custody, and control of the heroine at the material time. The trial
judge invoked the presumption of trafficking against him under Section 37(da)DDA1952.

7. Objectives of parties: The

objective of the Appellant was for the court to reverse the conviction and the sentence while
the Prosecution‘s objective was for the court to affirm the conviction and sentence against the
Appellant.

8. Theories of parties: The

Appellant had acted reasonably when he was arrested and mere physical proximity is not
sufficient to prove knowledge. Plus, the issue of common intention was not addressed by the
judge. The prosecution submitted that the Appellant had knowledge of the drugs because of
his conduct during arrest and his physical proximity with the drugs. The prosecution had
submitted the case of Public Prosecutor v Abdul Rahman bin Akif [2007]5MLJ1.

1. Issues: a) Whether the learned

judge had erred in drawing an inference of knowledge
b) Whether the learned judge had failed to evaluate whether, on the evidence,
common intention had been proved
c) Whether the trial judge had erred in making the inference of possession based on
physical proximity without proof of knowledge.

9. Judgment: The court find the

learned judge in evaluating the prosecution evidence rendered his basis for making the
inference of knowledge based on the Appellant’s conduct while he was arrested was
unsupportable. As for the issue of common intention, the court failed to find any evidence to
prove that there was pre-planning between the Appellant, the second accused and the third

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 accused or with either one of them. The court also failed to find any link between the first
accused and the third accused.

10. Reasoning (Rule,

Explanation and Application):
Knowledge is an essential ingredient in possession besides physical possession. This is due to
the fact that the prosecution had failed to establish any evidence upon which an inference of
knowledge about the drugs in the car can be made. In this case, there is no evidence of fear
adduced and no attempt to escape or a struggle to put up against the police. Therefore, a
physical possession of the drugs without proving the element of knowledge is insufficient.
The court further states that there was nothing in the conduct of the appellant or the second
accused except for the evidence of proximity, that can prove upon a prima facie case that they
had knowledge of the drugs.
Common intention as stated under section 34 of the Penal Code requires a pre-arranged plan
of the accused who participates in the offence. Therefore, there is no evidence as to the
connection of the appellant with the third accused or as to the common intention with either
the second or third accused or with both of them in committing the offence.

Rule, Explanation and Application:

Knowledge is an important element in possession. The court refers to the case of Public
Prosecutor v Basri bin Salihin, whereby the principle in this case shows that the person needs
to know the nature of the things possessed through having the custody as well as control in
order to convict a person. Moreover, in the case of Public Prosecutor v Salleb bin Zakaria &
Anor, it has been stated that the prosecution had failed to establish the element of possession
without proving knowledge.
Common intention is stated under section 34 of the Penal Code. The court follow the
principle in Sabarudin bin Non & Ors v Public Prosecutor and Khoo Hi Chiang v Public
Prosecutor And Another Appeal, in which it states that the common intention pre-supposes
prior concert, which requires for the accused to make a pre-arranged plan while participating
in an offence. In Wan Yurillhami bin Wan Yaacob & Anor v Public Prosecutor, it has been
mentioned that a pre-planning may occur during the course of the commission of the offence
or on the spot, but the important test is that the plan must precede the act constituting the
offence.

11. Concurring opinion: Not

available

12. Dissenting opinion: Not

available

13. Policy: Not available

14. Dicta: Not available

15. Disposition: The Appellate

Court reverses the decision

16. Comments: We do agree with

the court’s decision whereby the issue of common intention is crucial for the learned judge to
assess before convicting the appellant. According to the case of Sabarudin bin Non & Ors v
Public Prosecutor, it has specifically mentioned about the importance of the element of pre-
planning before committing an offence and that it must be proved before a person is convicted
of such offence. Furthermore, the proof of actual knowledge needs to be properly evaluated
so that the accused can be proven to have the possession and control of the drugs. The court
referred to the case of Public Prosecutor v Salleh bin Zakaria & Anor with regards to the

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 above issue. Lastly, in terms of the impact that it brings towards the society socially, Article
8(1) of the Federal Constitution has spoken about people having equal protection of the law
and this has shown that the High Court judge was wrong in discriminating the defence
witness’s statement. This is to prevent unfairness in the process of making judicial decisions.
We strongly disagree with the High Court’s decision in making a decision solely on the
demeanor of the accused and neglected the witness’s statement.

17. Significance of the case: This

case followed the rules set out in previous cases. However, there is still no new cases
referring to this case nor is there any new case overruling the decision set by this case. Hence
it is still good law. This case emphasizes on the importance of the element of knowledge to
prove possession in drug cases and that mere physical proximity is not sufficient to prove
knowledge. Furthermore, in proving common intention, the element of pre- planning must be
proved.