PP

[2021] MLRSU 78 v. Cheong Kim Hui pg 1

PP
v.
CHEONG KIM HUI

Magistrate Court, Kuala Lumpur

Mohamad Fared Abdul Latif M
[Arrest Case No: WA-83D-9286-09/2019]
8 October 2021

Case(s) referred to:

Abdullah Zawawi bin Yusoff v. PP [1993] 1 MLRA 416; [1993] 3 MLJ 1; [1993] 4
CLJ 1 (refd)
Balachandran v. PP [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1 CLJ 85;
[2005] 1 AMR 321 (refd)
Chan Pean Leon v. Public Prosecutor [1956] 1 MLRH 44; [1956] 1 MLJ 237(refd)
Gooi Loo Seng v. PP [1993] 1 MLRA 227; [1993] 2 MLJ 137; [1993] 3 CLJ 1;
[1993] 2 AMR 1135 (refd)
Loh Hock Seng & Anor v. Public Prosecutor [1979] 1 MLRA 264; [1980] 2 MLJ
13 (refd)
Mazlani Mansor v. Public Prosecutor and other appeals [2013] MLRAU 320;
[2014] 2 MLJ 18 (refd)
Munusamy Vengadasalam v. Public Prosecutor [1986] 1 MLRA 292; [1987] 1
MLJ 492; [1987] CLJ 221 (refd)
Muhamad Radhi Bin Yaakob v. Public Prosecutor[1991] 1 MLRA 158; [1991] 3
MLJ 169; [1991] 1 CLJ 311 (refd)
Mat v. PP [1963] 1 MLRH 400; [1982] 1b MLJ 13; [1963] MLJ 263 (refd)
Nor Afizal Azizan v. PP [2012] 5 MLRA 20; [2012] 6 MLJ 171; [2012] 6 CLJ 370
(refd)
PP lwn. Mohammad Habibul Hassan Khan [2020] MLRHU 857 (refd)
Public Prosecutor v. Norashikin Yusof & Anor [2018] MLRHU 1999; [2019] 7
MLJ 277 (refd)
Pang Chee Meng v. PP [1991] 1 MLRA 608; [1992] 1 MLJ 137; [1992] 1 CLJ
(Rep) 265 (refd)
Parlan Bin Dadeh v. PP [2008] 2 MLRA 763; [2008] 6 MLJ 19; [2009] 1 CLJ 717
(refd)
Pendakwa Raya v. Abdul Halim Bin Ishak & Anor [2013] MLRAU 235; [2013] 9
CLJ 559 (refd)
Pendakwa Raya v. Johar Mustafa [2003] 4 MLRH 9; [2004] 5 CLJ 187 (refd)
Pendakwa Raya lwn Lim Chsung Meng Dan Seorang Lagi [2016] 5 MLRA 224
(refd)
Pendakwa Raya lwn. Mohd Safwan Husain [2017] MLRAU 169; [2017] 5 MLJ
255; [2017] 7 CLJ 685 (refd)
PP v. Idzham Shafiee [2006] 2 MLRH 368; [2006] 4 MLJ 236; [2006] 6 CLJ 243
(refd)
PP v. Mohd Radzi Abu Bakar [2005] 2 MLRA 590; [2005] 6 MLJ 393; [2006] 1
CLJ 457; [2005] 6 AMR 203 (refd)
 PP
pg 2 v. Cheong Kim Hui [2021] MLRSU 78

PP v. Ooi Teng Chian [2005] 2 MLRA 199; [2006] 1 MLJ 213; [2005] 4 CLJ 557;
[2006] 2 AMR 136 (refd)
PP v. Saimin & Ors [1971] 1 MLRH 91; [1971] 2 MLJ 16 (refd)
PP v. Sim Joo Liong [2014] MLRHU 1340 (refd)
PP v. Wan Hasrul Nizam Wan Hizamuddin [2017] 3 MLRH 208; [2017] 10 MLJ
68; [2017] 4 CLJ 389 (refd)
Public Prosecutor v. Chia Leong Foo [2000] 1 MLRH 764; [2000] 6 MLJ 705;
[2000] 4 CLJ 649 (refd)
Public Prosecutor v. Jafa Daud [1981] 1 MLRH 800; [1981] 1 MLJ 315(refd)
Public Prosecutor v. Loo Choon Fatt [1976] 1 MLRH 23; [1976] 2 MLJ 256 (refd)
Public Prosecutor v. Mansor Mohd Rashid & Anor [1996] 2 MLRA 35; [1996] 3
MLJ 560; [1997] 1 CLJ 233 (refd)
Romi Amora Amir v. PP [2010] 3 MLRA 246; [2011] 4 MLJ 571; [2011] 1 CLJ
870 (refd)
Saludin bin Surif v. PP [1997] 1 MLRA 348; [1997] 3 MLJ 317; [1997] 3 CLJ 529;
[1997] 3 AMR 2867 (refd)
Shah Rehan bin Abdul Rahman v. Pendakwa Raya [2015] 4 MLRA 168; [2015] 4
CLJ 71; [2015] 3 MLJ 337(refd)
Public Prosecutor v. Tan Khee Sen [2020] MLRHU 674 (refd)
Tia Ah Leng v. Public Prosecutor [2004] 2 MLRA 284; [2004] 4 MLJ 249; [2004]
4 CLJ 77; [2004] 5 AMR 93 (refd)

Legislation referred to:

Criminal Procedure Code, ss 173(h), (ha), (m)(i), (ii)
Dangerous Drugs Act 1952, ss 12(2), 12(3), 15(1)(a), 31A, 39A(1), 37B(1)(d)
Evidence Act 1950, s 114(g)

Other(s) referred to:

Criminal Procedure In Malaysia (3rd Ed) at ms 49

Counsel:
For the public prosecutor:Abdul Khaliq Nazeri; DPP
For the accused:Zulkifli Awang; M/s Nur Omar Zul Awang & Co

[The accused is guilty.]

JUDGMENT

Mohamad Fared Abdul Latif M:

Introduction

[1] The accused herein is charged with two charges under s 39A(1) of the
Dangerous Drugs Act 1952 and s 12(2) of the Dangerous Drugs Act 1952
respectively.

[2] Upon reading the charges, the accused has pleaded not guilty and claimed
trial for both charges.
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 3

The Prosecution Case

[3] On 25 June 2019 at about 9.45 pm, Corporal Sahwal Bin Karia ("PW1")
with his task force team consisting of Corporal Sylvester James ("PW2"),
Corporal Zamzuri, Lans Corporal Careca, Lans Corporal Shaiful Sharikin,
Constable Suresh and Lans Corporal Nicholas were on patrol around Bandar
Sri Permaisuri and saw Cheong Kim Hui ["the accused"] seated alone in a
silver Proton Saga FLX car bearing its registration number WYC 6193 ["the
said Saga car"] which was parked at a dark and quiet parking area next to
Restoren 26 Mixed Rice.

[4] Upon seeing the accused in a suspicious condition, PW1 approached the
car and showed his authority card to the accused. The accused was agitated
and shocked. Thereafter, PW1 questioned the accused whether he has any
illegal substances with him. The accused responded with "yes" and handed
over with his right hand to PW1, one red-coloured paper bag, with "Baker's
Cottage" written on it ["Exhibit P7"], under the front seat of the driver's seat in
the said Saga car.

[5] PW1 conducted an inspection on Exhibit P7, sighted by the accused, PW2
and the task force team, further found 20 butterfly-patterned, pink plastic
packages ["Exhibit P9(1-20)"] wrapped in one white cloth inscribed with
"Nature Way" ["Exhibit P8"] suspected to be MDMA with its estimated
weight of 220 gram.

[6] Thereafter, PW1 contacted his chief police at the police station, ASP
Kumaresan Naidu and PW1 was instructed to carry out the arrest on the
accused. A search list was prepared and signed by the accused and
PW1["Exhibit P11"].

[7] On 25 June 2019 at about 10.30 pm, the accused together with Exhibit P7,
Exhibit P8 and Exhibit P9(1-20) were brought to the Salak Selatan police
station and thereupon, a police report: Salak South 7116/7117/19 was lodged
by PW1 ["Exhibit P1"].

[8] On 26 June 2019 at about 12.20 pm, the accused together with Exhibit P7,
Exhibit P8 and Exhibit P9(1-20) were handed over by PW1 to Inspector
Kalidasan a/l v. Rajakumar ["PW5"]. This is evident from the Handover
Form was prepared and signed between PW1 and PW5 ["Exhibit P12"].
Exhibit P7, Exhibit P8 and Exhibit P9(1-20) were kept and locked safely, at all
times, in PW5's metal cabinet inside his room.

[9] On 28 June 2019 at about 10.00 am, PW5 submitted an envelope marked
as "K" and sealed with "Polis Di-Raja Malaysia 448" ["Exhibit P6"] containing
Exhibit P7, Exhibit P8 and Exhibit P9(1-20) to the government chemist, Wan
Farah Nasuha Binti Wan Iskandar ["PW3"] at Jabatan Kimia Malaysia for
analysis. Exhibit P7, Exhibit P8 and Exhibit P9(1-20) were in a good condition
when received by PW3. Ensuing to that, an official receipt from Jabatan
Kimia Malaysia was issued ["Exhibit P14"].
 PP
pg 4 v. Cheong Kim Hui [2021] MLRSU 78

[10] The analysis conducted has confirmed that Exhibit P9(1-20) contained
dangerous drugs 5.11 gram of MDMA and 5.50 gram of Ketamine; both are
listed under the First Schedule of the Dangerous Drugs Act 1952. Exhibit
P9(1-20) were homogenised, and the remainder was put in a separate plastic
bag provided by Jabatan Kimia Malaysia ["Exhibit P10"]. A chemist's report
was prepared by PW3 ["Exhibit P15"].

[11] Cheong Tack Wai ["PW4"] being the owner ["Exhibit P16"] of the said
Saga car who also happened to be a sibling to the accused, was called in to
support the prosecution's case. PW4 testified that on the day that the accused
was arrested, the car was driven by the accused.

The Charges

[12] As indicated above herein, the accused is, then, charged under s 39A(1) of
the Dangerous Drugs Act 1952 and s 12(2) of the Dangerous Drugs Act 1952,
respectively. Both charges are:

1st Charge

Bahawa kamu pada 25 June 2019 jam lebih kurang 9.45 malam di tepi
Restoren 26 Mixed Rice, No 26, Jalan Sri Permaisuri 9, Bandar Sri
Permaisuri, Cheras 56000, di dalam daerah Cheras, Wilayah
Persekutuan Kuala Lumpur telah ada dalam milikan kamu dadah
berbahaya iaitu 5.11 gram MDMA. Oleh yang demikian, kamu telah
melakukan satu kesalahan di bawah s 12(2) Akta Dadah Berbahaya
1952 dan boleh dihukum di bawah s 39A(1) Akta yang sama.

2nd Charge

Bahawa kamu pada 25 June 2019 jam lebih kurang 9.45 malam di tepi
Restoren 26 Mixed Rice, No 26, Jalan Sri Permaisuri 9, Bandar Sri
Permaisuri, Cheras 56000, di dalam daerah Cheras, Wilayah
Persekutuan Kuala Lumpur telah ada dalam milikan kamu dadah
berbahaya iaitu 5.50 gram Ketamine. Oleh yang demikian, kamu telah
melakukan satu kesalahan di bawah s 12(2) Akta Dadah Berbahaya
1952 dan boleh dihukum di bawah s 12(3) Akta yang sama.

The Prima Facie Case

[13] It is incumbent upon the prosecution to prove a prima facie case against
the accused. See s 173(h) of the Criminal Procedure Code.

[14] Reference is made to the case of PP v. Mohd Radzi Abu Bakar [2005] 2
MLRA 590; [2005] 6 MLJ 393; [2006] 1 CLJ 457 at pp 465 and 466 para 12;
[2005] 6 AMR 203. The Federal Court had this to say:

[12] After the amendments to ss 173(f) and 180 of the CPC, the
statutory test has been altered. What is required of a Subordinate
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 5

Court and the High Court under the amended sections is to call for the
defence when it is satisfied that a prima facie case has been made out at
the close of the prosecution case. This requires the court to undertake
a maximum evaluation of the prosecution evidence when deciding
whether to call on the accused to enter upon his or her defence. It
involves an assessment of the credibility of the witnesses called by the
prosecution and the drawing of inferences admitted by the prosecution
evidence. Thus, if the prosecution evidence admits of two or more
inferences, one of which is in the accused's favour, then it is the duty
of the court to draw the inference that is favourable to the accused.

[Emphasis Added]

[See also Looi Kow Chai v. PP [2002] 2 MLRA 383; [2003] 2 MLJ 65;
[2003] 1 CLJ 734; [2003] 2 AMR 89 and Balachandran v. PP [2004] 2
MLRA 547; [2005] 2 MLJ 301; [2005] 1 CLJ 85; [2005] 1 AMR 321].

[15] The law is trite that to prove a prima facie case against the accused, this
Court is subject to a maximum evaluation taking into consideration the
totality evidence given by the prosecution's witnesses inclusive of their
credibility and reliability, and the fulfilment of the requirements under ss
39A(1) and 12(2) of the Dangerous Drugs Act 1952 by the prosecution.

The Analysis

[16] From the cursory reading of ss 39A(1) and 12(2) of the Dangerous Drugs
Act 1952, the ingredients are of the same nature. What differs is on the weight
of the dangerous drugs which carries different punishments under both
sections; respectively.

[17] In Public Prosecutor v. Tan Khee Sen [2020] MLRHU 674, the learned
Judicial Commissioner Shahnaz Binti Sulaiman has laid down the ingredients
required to be proven relating to possession of dangerous drugs. That is:

[37] With regard to the second, fourth, fifth, sixth and eight charges
relating to possession of drugs under the Dangerous Drugs Act 1952,
the ingredients are:

(i) drugs are dangerous drugs, within the meaning and

definition of the Dangerous Drugs Act 1952 (DDA); and

(ii) the Accused was in possession of the impugned drugs.

[18] This Court finds no hesitation to accept the evidence given by PW3 on the
drug analysis done as indicated in Exhibit P15. There was no defect in PW3's
analysis and there was no challenge by the defence on the identity of Exhibit
P9(1-20). PW3 confirmed that Exhibit P9(1-20) is listed as dangerous drugs in
the First Schedule of the Dangerous Drugs Act 1952, to wit: MDMA weighing
5.11 gram and Ketamine weighing 5.50 gram.
 PP
pg 6 v. Cheong Kim Hui [2021] MLRSU 78

[19] This Court refers to the case of Public Prosecutor v. Chia Leong Foo [2000]
1 MLRH 764; [2000] 6 MLJ 705; [2000] 4 CLJ 649 where it was held that:

"As the evidence of a chemist on the analysis of drugs by him is not

evidence of opinion but evidence of fact, he need not gibe particulars
of the tests carried out by him in his evidence. It follows that his
report, tendered in evidence under s 399(1), also need not contain such
particulars. In any event it has been held by the trilogy of the (then)
Supreme Court cases of Munusamy Vengadasalam v. PP [1986] 1
MLRA 292; [1987] 1 MLJ 492; [1987] CLJ (Rep) 221, PP v. Lam San
[1991] 1 MLRA 219; [1991] 3 MLJ 426; [1991] 1 CLJ (Rep) 391 and
Khoo Hi Ciang's case that the court is entitled to accept the evidence of
the chemist on its face value without the necessity for him to go into
details of what he did in the laboratory step by step unless it is
inherently incredible or the defence calls evidence in rebuttal by
another expert. Thus, if the accused is dissatisfied with the conclusion
reached by the chemist it is for him to summon the chemist as a
witness for that purpose or adduce evidence in rebuttal. This has not
been done by the accused in this case. The chemist report tendered in
evidence in this case is therefore not defective.

[20] Therefore, this Court opines that the first ingredient is proven on the
nature and the weight of Exhibit P9(1-20) forming the subject matter of this
case.

[21] For the second ingredient, "possession" depends on the particular facts of
each case. It must be proven that the accused had custody or control over the
impugned drugs (actus reus), and he had the intention of dealing with it (mens
rea). In Chan Pean Leon v. Public Prosecutor [1956] 1 MLRH 44; [1956] 1 MLJ
237, it was held:

"Possession" itself as regards the criminal law is described as follows in

Stephen's Digest (9th Edition, p 304):-

"A moveable thing is said to be in the possession of a person

when he is so situated with respect to it that he has the power
to deal with it as owner to the exclusion of all other persons,
and when the circumstance are such that he may be presumed
to intend to do so in case of need."

To put it otherwise, there, is a physical element and a mental element

which must both be present before possession is made out. The
accused must not only be so situated that he can deal with the thing as
if it belonged to him, for example have it in his pocket or have it lying
in front of him on a table. It must also be shown that he had the
intention of dealing with it as if it belonged to him should he see any
occasion to do so, in other words, that he had some animus possidendi.
Intention is a matter of fact which in the nature of things cannot be
proved by direct evidence. It can only be proved by inference from the
surrounding circumstances. Whether these surrounding circumstances
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 7

make out such intention is a question of fact in each individual case. If

a watch is in my pocket then in the absence of anything else the
inference will be clear that I intend to deal with it as if it were my own
and accordingly I am in possession of it. On the other hand, if it is
lying on a table in a room in which I am but which is also frequently
used by other people then the mere fact that I am in physical
proximity to it does not give rise to the inference that I intend to deal
with it as I it belonged to me. There must be some evidence that I am
doing or having done something with it that shews such an intention.
Or it must be clear that the circumstances in which it is found shew
such an intention. It may be found in a locked room to which I hold
the key or it may be found in a drawer mixed up with my own
belongings or it may found, as occurred in a recent case, in a box
under my bed. The possible circumstances cannot be set out
exhaustively and it is impossible to lay down any general rule on the
point. But there must be something in the evidence to satisfy the Court
that the person who is physically in a position to deal with the thing as
his own had the intention of doing so.

[Emphasis Added]

[22] The case of Chan Pean Leon (supra) was cited approvingly in Pendakwa
Raya lawan Lim Chsung Meng Dan Seorang Lagi [2016] 5 MLRA 224. It was
held by the Court of Appeal that:

[25] It is perhaps convenient at the outset to briefly state the law on

"possession" where the drugs were found in a place/area under the
control of an accused. A determination of whether there is
"possession" depends on the particular facts of each case. Factors that
used to be considered in determining whether an accused is in
possession of the drugs found in a place/area under his or her control
include his or her knowledge that the drugs were in the place/area, his
or her access to the place/area where the drugs were found and his or
her physical proximity to the drugs.

[26] The possession prohibited by law need not be actual physical

custody and control of the drugs; it is sufficient if the prosecution
proves that the accused had knowledge of its presence and the power
and intent to control its disposal. Further possession need not be
exclusive; a person may be deemed to be in joint possession of a drug
which is in the physical custody and control of another person, if he or
she wilfully shares with the other the right of control over the drug.

[Emphasis added]

[23] As alluded above, "possession" depends on the peculiarity of the facts in

each case. Hence, to determine what amounts to "possession", there are factors
to be considered, and this includes that the impugned drugs found with the
accused are under his control, his access to the place where the impugned
drugs were found and the physical proximity between the accused and the
 PP
pg 8 v. Cheong Kim Hui [2021] MLRSU 78

impugned drugs. It signifies the ability of the possessor to exercise the power
to deal with the impugned drugs to the exclusion of others coupled with his
knowledge of the impugned drugs. The law is trite that the onus is on the
prosecution to rule out access by others to the said Saga car by adducing
cogent evidence. See Abdullah Zawawi bin Yusoff v. PP [1993] 1 MLRA 416;
[1993] 3 MLJ 1; [1993] 4 CLJ 1, Pang Chee Meng v. PP [1991] 1 MLRA 608;
[1992] 1 MLJ 137; [1992] 1 CLJ (Rep) 265, Saludin bin Surif v. PP [1997] 1
MLRA 348; [1997] 3 MLJ 317; [1997] 3 CLJ 529; [1997] 3 AMR 2867 dan
Gooi Loo Seng v. PP [1993] 1 MLRA 227; [1993] 2 MLJ 137; [1993] 3 CLJ 1;
[1993] 2 AMR 1135.

[24] Reverting to the present case, this Court finds that Exhibit P9(1-20) is
under the control and/or custody of the accused. The circumstances of this
case reveal that the accused was seated alone in the said Saga car. There was
no one else in the vicinity other than the accused. PW1 proceeded to ask the
accused on whether he has any illegal substances in which he responded in the
affirmative; the accused handed over Exhibit P7 to PW1 (on this note, this
Court will elaborate further in the ensuing paragraphs) taken under the front
seat of the driver's seat in the said Saga car. Upon further inspection made,
PW1 found that Exhibit P7 contained Exhibit P8 and Exhibit P9(1-20). PW1
testified and corroborated by PW2 that from the accused's face and reaction,
he was anxious and shocked. Reliance to be placed in Parlan Bin Dadeh v. PP
[2008] 2 MLRA 763; [2008] 6 MLJ 19; [2009] 1 CLJ 717. The Federal Court
states that:

The reaction of the appellant in looking stunned or shocked upon

being approached by the police was clearly admissible under s 8 of the
Evidence Act 1950 ("the Act") since it has a direct bearing on the fact
in issue as the drugs found were tucked away in the front of the jeans
worn by him. The explanation for his reaction must therefore be
offered by the appellant himself as required by s 9 of the Act.
However, as the appellant did not offer any explanation for his
reaction upon being approached by the police, it could be validly used
as evidence against him. In the circumstances, the inference to be
drawn from the evidence was that he knew what he was carrying.

[25] To further strengthen the prosecution's case, PW4 testified that on the day
when the accused was arrested, the said Saga car was driven by the accused.
The counsel for defence has attempted to raise one issue in his written
submissions, through PW4, that the said Saga car was borrowed and used by
the accused's friends before and on the day of his arrest. If this Court were to
believe this statement, the accused must have mentioned his friends' names to
PW1 and PW5. Regrettably, it was not done.

[26] Further, PW1 and PW5 were asked in their cross examination by the
learned defence's counsel on the alleged fact that the accused was waiting for
his friend in the said Saga car. The answers given by PW1 and PW5 were in
the negative.

[27] In PW1's evidence:

 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 9

PB : Katakan, Orang Kena Tuduh sebenarnya sedang menunggu

seseorang yang pergi ke dalam restoren tersebut. Setuju atau tidak?

SP1 : Tidak tahu.

PB : Setuju, kamu tidak ada ada tanya kepada Orang Kena Tuduh, dia
sedang tunggu siapa ketika itu?

SP1 : Ada.

PB : Dan, beliau ada beritahu sedang tunggu seseorang?

SP1 : Dia diam.

[28] In PW5's evidence:

PB: Katakan, dalam siasatan Orang Kena Tuduh sendiri ada

mengatakan barang dijumpai semasa tangkapan adalah bukan milik
beliau?

SP5: Tidak setuju.

...

PB: Orang Kena Tuduh dalam siasatan ada beritahu barang tersebut
adalah milik kawan beliau bernama Cheng Tek Chun. Setuju?

SP5: Tidak setuju.

...

PB: Katakan, terdapat individu lain semasa tangkapan Orang Kena

Tuduh?

SP5 Tidak setuju.

The Need For CCTV

[29] If this was the case, PW5 is compelled to conduct further necessary
investigation to get full analysis of the case, through and through, so that
justice can be upheld. This, of course, includes the need to get the CCTV in the
vicinity where the accused was arrested. Therefore, the argument put forth by
the learned defence's counsel insofar as to the failure of PW5 to obtain and
investigate any CCTV in the vicinity nearby, must fail.

Section 114(g) Of The Evidence Act 1950

[30] Furthermore, the learned defence's counsel urged this Court to invoke
"adverse inference" under s 114(g) of the Evidence Act 1950 for PW5's failure
 PP
pg 10 v. Cheong Kim Hui [2021] MLRSU 78

to record statements from the owner or the workers of Restoren 26 Mixed Rice
where the accused was apprehended to investigate on the operating hours of
Restoren 26 Mixed Rice or the existence of the alleged accused's friend.

[31] Section 114(g) of the Evidence Act 1950 states:

114. Court may presume existence of certain fact.

The Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course of
natural events, human conduct, and public and private business, in
their relation to the facts of the particular case.

ILLUSTRATIONS

The Court may presume-

(a) .....

(b) .....

(c) .....

(d) .....

(e) .....

(f) .....

(g) that evidence which could be and is not produced would if

produced be favourable to the person who withholds it;

(h) .....

(i) .....

[Emphasis added]

[32] In Munusamy Vengadasalam v. Public Prosecutor [1986] 1 MLRA 292;

[1987] 1 MLJ 492; [1987] CLJ 221, Mohamed Azmi SCJ (as he then was)
observed at p 494:

It is essential to appreciate the scope of s 114(g) of the Evidence Act

1950 lest it be carried too far outside its limit. Adverse inference under
that illustration can only be drawn if there is withholding or
suppression of evidence and not merely on account of failure to obtain
evidence. It may be drawn from withholding not just any document,
but a material document by a party in his possession nor for non-
production of just any witness but only an important and material
witness to the case.
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 11

[Emphasis added]

[33] It is the discretionary right of the prosecutor to call any witnesses he or

she deems fit to call as guided in Public Prosecutor v. Norashikin Yusof & Anor
[2018] MLRHU 1999; [2019] 7 MLJ 277 (cited approvingly the case of
Munusamy (supra). Collin Sequerah J at High Court Johor Bahru states at para
111:

[111] No doubt, it is the prerogative of the prosecution to call

witnesses they deem fit. However, where the said witnesses are
essential to the unfolding of the narrative upon which the prosecution
case is based, failure to call these witnesses will result in a gap in the
prosecution case and result in them failing to prove a prima facie case
(see Abdullah Zawawi Omar v. Public Prosecutor [1985] 1 MLRA 103;
[1985] 2 MLJ 16; [1985] CLJ 19).

[Emphasis added]

[34] Therefore, s 114(g) of the Evidence Act 1952 is activated when the
essential witness in unfolding the prosecution's narrative is failed to be called.

[35] In the case before this Court, the accused was apprehended alone in the
said Saga car by PW1 and the task force team. There was no one else in the
vicinity nearby. In fact, this was confirmed in the evidence of PW1 and PW2.
Even if the prosecution decided to call the owner or the workers of Restoren
26 Mixed Rice, it does not in any way essential to the narrative unfolded in the
prosecution's case and the prosecution, through their witnesses produced
before this Court, had evidently filled in the gaps to support the case.
Henceforth, the attempt by the learned defence's counsel to invoke "adverse
inference" under s 114(g) of the Evidence Act 1950 must also fail.

The Fingerprints Analysis

[36] It was ventilated further by the learned defence's counsel that PW5 failed
to conduct fingerprint analysis on Exhibit P9(1-20). Had this been done, such
analysis could be able to indicate the owner of Exhibit P9(1-20).

[37] Fingerprint analysis would play a vital role and of great significance to the
prosecution's case. In Public Prosecutor v. Mansor Mohd Rashid & Anor [1996]
2 MLRA 35; [1996] 3 MLJ 560; [1997] 1 CLJ 233, the Federal Court decides
that:

We also find ourselves in agreement with the learned deputy public

prosecutor that the learned trial judge had erred in law when he
faulted PW13, the investigating officer, for not lifting the fingerprints
off the wrappings of the cannabis and for not taking photographs of
the streetlight in front of the house No 129. Where the identity of the
culprit is in question or required to be proved. Fingerprint evidence
would be of great importance and immense value. In the present case
 PP
pg 12 v. Cheong Kim Hui [2021] MLRSU 78

under appeal, however, the charge alleged trafficking in the form of

sale and there was evidence indicating the identities of the alleged
offenders and the sale transaction. Fingerprint evidence on the
newspaper wrapping, white plastic and the loytape. Therefore,
assumed little value or signifance.

[38] This raises an issue, whether in the absence of this fingerprint analysis
would cause fatality to the prosecution's case. In Mazlani Mansor v. Public
Prosecutor and other appeals [2013] MLRAU 320; [2014] 2 MLJ 18, it was held
by the Court of Appeal that one can still be in possession of incriminating
substances without being in physical contact with it. It states:

[30] With regard to the absence of the appellant's finger prints on the
incriminating items, we find that not much weight can be attached to
such evidence either because in criminal law, a person may still be in
possession of a movable thing without actually being in physical
contact with it. What is required is that he is so situated with respect to
it that he has the power to deal with it as owner to the exclusion of all
others which, as we found earlier, in the case here.

[39] In this case, at the risk of repetition, Exhibit P7, Exhibit P8 and Exhibit
P9(1-20) were handed over by the accused to PW1 and sighted by PW2 and
the task force team. The accused was seated alone in the said Saga car in a
suspicious condition and there was no one else in the vicinity nearby. When
the accused was asked by PW1 if he was awaiting someone else there, the
accused remained silent.

[40] This is further evident from PW5 that the accused did not mention any
name who would be the real culprit in this case. PW5 further agreed with the
learned defence's counsel that no fingerprints were found in this case.

[41] In PW5's evidence:

PB : Setuju, cap jari memang tidak timbul dalam kes ini?

SP5 : Setuju.

[42] Be that as it may, this Court finds that there is no necessity to conduct
fingerprint analysis as the investigation of PW5 is whole and complete even if
there were no fingerprints found. It is pertinent to note that in the above cited
cases, nowhere to be found that such fingerprint analysis is mandatory. It will
not create ambiguities in the prosecution's case. Consequently, this Court is
unpersuaded with the argument, and it must also fail.

[43] From these strings of evidence led by the prosecution, this Court finds that
the accused, at all material times, had custody and/or control over Exhibit
P9(1-20) to the exclusion of others.

[44] Moving on to the issue of knowledge ie, whether the accused had the
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 13

intention of dealing with Exhibits P9(1-20). It was canvassed by the learned

defence's counsel that the response of the accused by saying "yes" and
thereafter, handed over Exhibit P9(1-20) to PW1 cannot be admitted as
evidence for the reason that there was no caution administered by PW1 when
the accused was arrested. However, this is rather unfortunate as both parties
failed to make any references to any legal authorities to be dealt with.

[45] This Court takes the liberty to refer to s 37B(1) of the Dangerous Drugs
Act 1952 and reproduce herewith in verbatim for ease of reference.

37B. Admission of statement in evidence.

(1) Where any person is charged with any offence against this Act, any
statement, whether such statement amounts to a confession or not or
is oral or in writing, made at any time, whether before or after such
person is charged and whether in the course of a police investigation
or not and whether or not wholly or partly in answer to questions, by
such person to or in the hearing of any police officer of or above the
rank of Inspector or any police of customs and whether or not
interpreted to him by any other police officer or senior officer of
customs or any other person concerned or not in the arrest, shall
notwithstanding anything to the contrary contained in any written
law, be admissible at his trial in evidence and, if such person tenders
himself as a witness, any such statement may be used in cross-
examination and for the purpose of impeaching his credit:

Provided that no such statement shall be admissible or used as

aforesaid-

(a) .....

(b) in the case of a statement made by such person

after his arrest, unless the Court is satisfied that a
caution was administered to him in the following
words or words to the like effect-

"It is my duty to warn you that you are not

obliged to say anything or to answer any
question, but anything you say, whether in
answer to a question or not, may be given in
evidence":

Provided that a statement made by

any person before there is time to
caution him shall not be rendered
inadmissible in evidence merely by
reason of no such caution having
been given if it has been given as soon
as possible.
 PP
pg 14 v. Cheong Kim Hui [2021] MLRSU 78

[Emphasis added]

[46] From the abovementioned section, it is noted that a statement made by an

arrested person to a police officer above the rank of Inspector shall be
admissible provided caution was administered to the arrested person.

[47] In a recent development on the terminology of "arrest" which was

elucidated in extenso by the Court of Appeal in Pendakwa Raya lwn. Mohd
Safwan Husain [2017] MLRAU 169; [2017] 5 MLJ 255; [2017] 7 CLJ 685, this
Court noted that the discussion in Mohd Safwan Husain (supra) regarding the
meaning of "arrested person" was made under s 31A of the Dangerous Drugs
Act 1952. This, perhaps, could shed light to the discussion herein as the words
"after his arrest' under s 37B(1) of the Dangerous Drugs Act 1952 implies an
"arrested person". In Mohd Safwan Husain, it was held:

[21] Dalam mencari resolusi pada isu undang-undang yang

ditimbulkan, amat ketepatan untuk dimulakan dengan peruntukan
undang-undang yang diperdebatkan dalam rayuan ini. Seksyen 31A(1)
dan (1A) ADB 1952 memperuntukkan:

(1) When any person is arrested on a charge of committing an

offence against this Act-

(a) which is of such a nature; or

(b) which is alleged to have been committed under

such circumstances,

as give reasonable grounds for believing that an examination

of this person will afford evidence as to the commission of an
offence against this Act, it shall be lawful for a medical officer
acting at the request of any police officer not below the rank of
Sergeant, or any other officer in charge of a police station, or
any officer of customs, and for any person acting in aid of a
medical officer and under his direction, to make such an
examination or examinations of the person arrested as may be
reasonably necessary in order to ascertain the facts which may
afford such evidence, and to use or cause to be used such force
as may be reasonably necessary for that purpose.

(1A) For the purpose of preservation of evidence, it shall be

lawful for a police officer not below the rank of Sergeant or
any officer of customs to require an arrested person to provide
a specimen of his urine for the purposes of an examination
under subsection (1) if it is not practicable for the medical
officer or the person who is acting in aid of or on the direction
of a medical officer to obtain the specimen of the urine within
a reasonable period.
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 15

Secara amnya, peruntukan seksyen ini dengan jelas, antara

lain, membantu pihak polis dalam mengerakkan jentera
siasatan dengan memberikan keabsahan (validity/lawfulness)
ke atas tindakan mereka dalam menguatkuasakan ADB 1952
terutamanya dalam melakukan pemeriksaan ke atas mana-
mana orang yang telah ditangkap (person arrested).
Peruntukan s 31A(1A) ini dengan jelas memberikan kuasa
kepada pegawai polis, atas pangkat yang dinyatakan, untuk
merujuk seseorang yang telah ditangkap kepada pegawai
perubatan atau mereka yang dibenarkan bagi tujuan
pemeriksaan orang yang ditangkap tersebut untuk mencari
apa-apa bukti bagi kesalahan yang dilakukan di bawah ABD
1952. Pemeriksaan tersebut boleh merangkumi pemeriksaan
luaran dan dalaman tubuh seseorang yang ditangkap itu.
Pemeriksaan dalaman termasuklah pengambilan darah, air
kencing, air mani, dan sebagainya. Tidak dinafikan seksyen
ini amat relevan dalam siasatan bagi kesalahan di bawah s
15(1)(a) ADB 1952. Dicatat lanjut, dengan s 31A(1A),
pegawai polis dalam pangkat yang diperuntukkan dibenarkan,
bagi tujuan pemeliharaan sesuatu bukti, untuk meminta
seseorang yang ditangkap (an arrested person) memberikan
spesimen air kencingnya bagi tujuan pemeriksaan di bawah s
31A(1) jika pengambilan spesimen itu oleh seseorang pegawai
perubatan tidak praktikal dilakukan dalam tempoh yang
munasabah. Jika segala kehendak seksyen ini diikuti, tindakan
pengambilan spesimen dan pemeriksaan yang dilakukan itu
akan menjadi sah (lawful) (rujuk s 53 Indian Criminal
Prosedure Code yang ini pari materia dengan s 31A(1) kita;
dan kes Jamshed v. State of UP [1976] CriLJ 1680, Ananth
Kumar Naik v. The State of Andhra Pradesh [1977] CriLJ 1797,
Anil Anantrao Lokhande v. The State of Maharashtra [1981]
CriLJ 125, bagi penjelasan skop pemakaian seksyen ini).

[22] Jelasnya, peruntukan ini secara khusus memberikan keabsahan ke

atas tindakan pihak polis itu (termasuk pegawai perubatan dan yang
berkenaan) apabila melakukan sesuatu siasatan ke atas gulungan
orang yang disebut melalui perkataan dan ungkapan yang digunakan
dalam peruntukan s 31A itu sendiri. Dalam s 31A, ungkapan yang
digunakan ialah 'Apabila mana-mana orang ditangkap' (When any
person is arrested), dan dalam s 31A(1A) pula digunakan kata sifat
(adjective) dalam bentuk 'an arrested person'. Kami berpendapat
daripada ungkapan dan kata sifat tersebut, peruntukan ini akan
terpakai apabila seseorang yang diperiksa itu merupakan seorang yang
telah ditangkap. Dari sudut ini, kami bersetuju dengan keputusan YA
pesuruhjaya kehakiman.

[23] Bagaimanapun itu bukan penyudahnya. Persoalannya, daripada

ungkapan any person is arrested, person arrested atau an arrested
person itu bilakah seseorang itu dikatakan telah ditangkap (arrested)?
 PP
pg 16 v. Cheong Kim Hui [2021] MLRSU 78

Bagi tujuan itu, sudah semestinya kita perlu memulakan dengan

pencarian apakah yang dimaksudkan dengan perkataan 'tangkapan'
(arrest)? Akta Dadah Berbahaya 1952 tidak mentakrifkan perkataan
itu. Mimi Kamariah Majid dalam Criminal Procedure In Malaysia (3rd
Ed) di ms 49 menyatakan:

According to Halsbury's Law of England, arrest consists in the

siezure or touching of a person's body with a view to his
restraint; words may, however, amount to an arrest if, in the
circumstances of the case, they are calculated to bring, and do
bring, to a person's notice that he is under compulsion and he
thereafter submits to the compulsion. [Penekanan ditambah.]

Tentang cara tangkapan dilaksanakan, ini telah diperuntukkan dalam

s 15 KPJ seperti mana yang berikut:

15(1) In making an arrest the police officer or other person

making the same shall actually touch or confine the body the
body of the person to be arrested unless there is a submission
to the custody by word or action.

Kedua-dua pihak dalam rayuan sekarang ini bersetuju dengan

keputusan kes locus classicus Shaaban & Ors v. Chong Fook Kam &
Anor [1969] 1 MLRA 153; [1969] 2 MLJ 219 (PC) yang memutuskan:

An arrest occurs when a police officer states in terms that he is

arresting or when he uses force to restrain the individual
concerned. It occurs also when by words or conduct he makes
it clear that he will if necessary, use force to prevent the
individual from going where he may want to go. It does not
occur when he stops an individual to make inquiries.

Begitu juga dalam kes Holgate-Mohammed v. Duke [1984] AC

437(HL) diputuskan di ms 441 begini:

An arrest occurs when a police officer states in terms that he is

arresting or when he uses force to restrain the individual
concerned. It occurs also when by words or conduct he makes
it clear that he will if necessary, use force to prevent the
individual from going where he may want to go. It does not
occur when he stops an individual to make inquiries.

Begitu juga dalam kes Holgate-Mohammed v. Duke [1984] AC

437(HL) diputuskan di ms 441 begini:

The word 'arrest'... is a term of art. First, it should be noted

that arrest is a continuing act: it starts with the arrester taking
a person into his custody. (sc By action or words restraining
him from moving anywhere beyond the arrester's control), and
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 17

it continues until the person so restrained is either released

from custody or, having been brought before a magistrate, is
remanded in custody by the magistrate's judicial act.
[Emphasis added.]

[24] Bagaimanapun, kami mendapati pemakaian prinsip di atas telah

mencipta beberapa pendekatan untuk menentukan bilakah sesuatu
tangkapan telah berlaku. Kami tidak berniat untuk menyusuri setiap
pendekatan tersebut tetapi memadai untuk memetik beberapa kes
untuk melihat prinsip am yang boleh terpancar daripada kes-kes
tersebut. Dalam kes Public Prosecutor v. Shee Chin Wah [1997] 3
MLRH 500; [1998] 5 MLJ 429; [1997] 5 CLJ 472, YA Suriyadi H
(ketika itu) di ms 481 dengan jelas telah membentangkan pendekatan-
pendekatan tersebut:

The relevant provision with regard to arrest is s 15 of the

Criminal Procedure Code and it reads:

15(1) In making an arrest the police officer or other

person making the same shall actually touch or
confine the body of the person to be arrested unless
there be a submission to the custody by word or
action.

A simple reading of the above provision will impress any

reader that some restraining of the liberty of the person by
certain acts, physical or otherwise, is required, which will
immobilise him although actual arrest will become
unnecessary if there is submission to the arrestor. In Shaaban
& Ors v. Chong Fook Kam & Anor [1969] 1 MLRA 153; [1969]
2 MLJ 219 at p 220, Lord Devlin said:

An arrest occurs when a police officer states in terms

that he is arresting or when he uses force to restrain
the individual concerned. It occurs also when by
words or conduct he makes it clear that he will, if
necessary, use force to prevent the individual from
going where he may want to go. It does not occur
when he stops an individual to make inquiries.

By virtue of attempts by jurists to interpret the meaning of

arrest, two schools of thought have germinated, one requiring
actual arrest whilst the other sufficiently satisfied if a person is
already in a state of being watched or guarded to prevent his
escape. As for the latter view, the issue of whether in a
particular case a person was under arrest at a given moment of
time, is a question of fact to be decided according to the facts
of each case. To mention a few cases, this view is clearly
reflected in Sambu v. R [1946] 1 MLRH 356; [1947] 1 MLJ 16,
 PP
pg 18 v. Cheong Kim Hui [2021] MLRSU 78

PP v. Salamah binte Abdullah & PP v. Ong Eng Kiat [1947] 1

MLRH 619; [1947] MLJ 178 and Tan Shu En & Anor v. PP
[1948] 1 MLRA 162; [1948] 1 MLJ 196. In the classic case of
Jayaraman & Ors v. PP [1982] 1 MLRA 20; [1982] 2 MLJ 306;
[1982] CLJ 130, the court was of the view that mere inquiries
or even a request 'not to leave the compound of the temple' did
not tantamount to having the accused under arrest. In other
words something extra was required for a person to be
considered as under arrest. With the advent of PP v. Salleh
Saad [1979] 1 MLRH 457; [1983] 2 MLJ 164 the mood swung
to actual arrest and not constructive arrest. This case was
strongly supported by PP v. Lim Kin Ann [1987] 2 MLRH 162;
[1988] 1 MLJ 401 and PP v. Tan Chye Joo & Anor [1988] 2
MLRH 707; [1989] 2 MLJ 253.

The case of Krishnan v. PP [1986] 1 MLRA 239; [1987] 1 MLJ

292; [1987] CLJ 145 saw an interesting development in the
law when Their Lordships in the Supreme Court enunciated
that the accused was already under arrest when he was being
pursued to his house by the police. Wan Adnan J (as he then
was) in Tan Chye Joo , even though after Krishnan,
distinguished the facts of Krishnan with that of the case before
him by alluding to the remarks of the police witness and the
lack of evidence to show that there was an attempt by the
arrestee to escape.

Peh Swee Chin J (as he then was) in PP v. Rosyatimah bte

Neza & Anor [1988] 2 MLRH 121; [1989] 1 MLJ 360; [1989] 2
CLJ 364 created a ripple again when His Lordship endorsed
the constructive arrest concept and at the same time adding
that a person was under arrest if 'from the circumstances it can
be implied that his personal liberty has been restrained'. Three
years later, the issue of arrest made its appearance again in PP
v. Kang Ho Soh [1991] 2 MLRH 216; [1992] 1 MLJ 360;
[1991] 3 CLJ 55 when His Lordship Mahadev Shankar J (as
he then was) said at p 2917:

But whether in a particular case a person was under

actual arrest at a given moment of time is a question
of fact, to be decided according to the circumstances
of each case.

Having considered the relevant views of those eminent judges

I found myself to be in complete agreement with the view of
Mahadev Shankar J not only due to its sensibleness and
pragmatism but is in full consonant (sic) with the statutory
provision.

[25] Mengenai pelbagai pendekatan ini lagi, YA Abdul Hamid

Mohamad H (ketika itu), dalam kes Public Prosecutor v. Abdul Rahim
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 19

Kalandari Mustan [1997] 4 MLRH 657; [1998] 5 CLJ 566, setelah

merujuk kes- kes berkaitan isu ini, berpandangan:

Kes-kes ini tidak dapat di 'reconciled'. Walau bagaimanapun saya

berpendapat bahawa penggunaan kata-kata 'actual arrest' dan
'constructive arrest' adalah 'unfortunate'. Undang-undang cuma
menyebut 'arrest' (tangkapan). Apa yang jelas ialah sama ada
tangkapan telah berlaku atau tidak terletak kepada keadaan sesuatu
kes. Perkataan 'awak ditangkap' atau yang serupa dengannya dan
seseorang itu digari bukanlah satu kemestian. Hakikat bahawa seorang
itu akan dihalang daripada beredar dari tempat itu juga tidak
semestinya bererti dia telah ditangkap. Mengatakan sebaliknya adalah
keterlaluan. Ia bererti setiap kali seorang pegawai polis menahan
seseorang untuk meminta kad pengenalannya orang itu telah
ditangkap kerana dalam keadaan seperti itu pun tentu sekali pegawai
polis itu akan menghalang orang itu daripada pergi dari situ tanpa
memperdulikan permintaannya.

[26] Diperhatikan kebanyakan daripada kes-kes tersebut melibatkan

penentuan kebolehterimaan sebagai keterangan kenyataan seseorang
tertuduh yang dibuat setelah ditangkap (after arrest) di bawah s 37
ADB 1952 atau pun s 113 KPJ. Dari situ telah timbul konsep
tangkapan sebenar (actual arrest), tangkapan secara konstruktif
(constructive arrest), tangkapan simbolik (symbolic arrest), dan yang
terbaru konsep tangkapan secara teknikal (technical arrest - seperti
mana disentuh dalam Teoh Meng Kee v. Public Prosecutor [2014] 5
MLRA 404; [2014] 5 MLJ 741; [2014] 7 CLJ 1034 yang melibatkan
kematian seorang saksi semasa dalam jagaan pihak berkuasa
(custodial death)). Apa yang jelas pendekatan tersebut diambil bagi
tujuan penentuan isu tangkapan dalam konteks perundangan tertentu
berkenaan.

[27] Pendekatan tersebut ditimbulkan juga dalam rayuan ini. TPR

menegaskan bahawa tangkapan bagi maksud s 31 ADB 1952
merangkumi tangkapan secara konstruktif, manakala peguam
responden pula berhujah bahawa tangkapan di situ bermakna hanya
tangkapan sebenar (yang dipersetujui oleh YA pesuruhjaya
kehakiman).

[28] Kami telah meneliti dan mempertimbangkan penghujahan kedua-

dua pihak dan kes-kes yang dirujuk. Kami tidak berkecenderungan
untuk mengikut pendekatan-pendekatan tersebut. Setelah meneliti kes-
kes di atas, kami bersetuju dengan pandangan bahawa pendekatan-
pendekatan tersebut sukar untuk diseragamkan (reconcile) dan agak
malang (unfortunate) untuk digunakan seperti mana dikatakan oleh
YA Abdul Hamid Mohamad H (ketika itu) dalam PP v. Abdul Rahim
Kalandari Mustan . Pada kami, dalam semua perundangan yang
berkenaan sama ada dalam KPJ atau pun ADB 1952, apa yang perlu
ditentukan adalah sama ada telah berlakunya satu tangkapan atau
tidak. Kami berpendapat penentuan isu tersebut akan bergantung pada
 PP
pg 20 v. Cheong Kim Hui [2021] MLRSU 78

fakta dan keadaan sesuatu kes itu. Inilah prinsip am yang terpancar
daripada pertimbangan kes-kes di atas.

[48] All considered, the Court of Appeal in Mohd Safwan Husain (supra) went
on to decide:

[37] Setelah membuat pertimbangan yang mendalam serta setelah

mengambil kira keseluruhan premis di atas, kami menjawab isu
undang-undang yang dikemukakan secara negatif. Kami mendapati
penggunaan dikotomi tangkapan sebenar atau tangkapan konstruktif
tidak tepat di sini dan tidak membantu dalam resolusi issue yang
dirujuk. (Lihat kes R v. Whitfield [1970] S.C.r 46 (Kanada) yang telah
menolak konsep sebegitu termasuk tangkapan simbolik). Pendekatan
yang sebaiknya adalah sama ada telah berlakunya sesuatu tangkapan
atau tidak. Penentuan isu ini seterusnya akan bergantung pada
keadaan dan fakta sesuatu kes itu (PP v. Lim Hock Boon, supra). Pada
pengamatan kami YA Pesuruhjaya Kehakiman telah terkhilaf dalam
penghakimannya apabila mengambil pendekatan secara dikotomi
tersebut. Walaupun kami gagal menemukan isu tangkapan ini
dihujahkan di kedua-dua peringkat mahkamah, kami mendapati YA
Pesuruhjaya Kehakiman telah gagal menilai fakta-fakta di atas dalam
membuat inferens bahawa responden pada masa pengambilan
spesimen dilakukan dia belum lagi ditangkap. Kami dapati YA
Pesuruhjaya Kehakiman telah juga gagal untuk menilai laporan P6
bersama-sama dengan keterangan yang diberikan oleh SP3 serta skop
pemakaian peruntukan s 31 dan 31 ADB 1952. Kami juga dapati, jika
hendak dikatakan spesimen air kencing itu tidak sah diambil daripada
responden sekalipun, YA Pesuruhjaya Kehakiman seharusnya, setelah
mendapati isu (a) dan (b) bermerit terutamanya memutuskan
spesimen air kencing dalam P10 mengandungi methamphetamine,
mendapati perayu telah berjaya membuktikan suatu kes prima facie ke
atas responden.

[Emphasis Added]

[49] As cited above, to constitute whether a person has been arrested or not
depends wholly on the facts and circumstances of each case. This Court agrees
to the proposition propounded in Mohd Safwan Husain (supra) and is bound
stare decisis to its principle.

[50] Coming back to the peculiarity of this case, on the night when the incident
took place, the accused was asked by PW1 if he has with him any illegal
substances in which the accused responded with a "yes" and handed over
Exhibit P7 containing Exhibit P8 and Exhibit P9(1-20) by his right hand to
PW1. Upon finding out the illegal substances suspected to be dangerous drugs,
PW1 called ASP Kumaresan Naidu and subsequently, he was instructed to
carry out the arrest on the accused. This is evident during PW1's examination-
in-chief, he stated that "Seterusnya, pemeriksaan ke atas tubuh badan dan
kereta tidak menjumpai barang salah yang lain. Kemudian, saya jalankan
semakan ke atas kad pengenalan menggunakan aplikasi EMMS PDRM.
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 21

Seterusnya, dapati penama dilaporkan masih dikehendaki bersabit PUDU

3609/2018 di bawah s 15(1)(a) Akta Dadah Berbahaya 1952. Saya
maklumkan kepada Ketua Polis Balai, ASP Kumaresan Naidu dan arahannya
adalah jalankan tangkapan".

[51] It was further corroborated in Exhibit P1 lodged by PW1. It reads:

... Semakan keatas nombor pendaftaran WYC6193 mendapati

m/kereta tersebut didapati tiada rekod hilang. Saya maklum KPD
ASP Kumaresan Naidu /l Vengho dan arahannya jalankan tangkapan
keatas suspek serta rampas kesemua barang kes dan bawa balik ke
Balai Polis Salak Selatan untuk tindakan lanjut...

[52] Regarding the position of all the task force team when the accused was
found next to Restoren 26 Mixed Rice, PW1 had this to say:

PB: Semasa itu, Koperal di sebelah pintu mana?

SP1: Di pintu pemandu.

PB: Team yang lain berada di mana?

SP1: Anggota yang lain berada di belakang saya. Dan rapat.

[53] For PW2, his evidence is this:

PB: Semasa perkenalkan diri sebagai polis, siapa yang kenalkan?

SP2: Koperal Sahwal.

PB: Kamu berada di bahagian mana ketika itu?

SP2: Di belakang Koperal Sahwal.

PB: Setuju, anggota lain mengelilingi kereta Orang Kena Tuduh?

SP2: Tidak. Berada di belakang sebelah kanan.

[54] As indicated above, this confirms that PW1, PW2 and the task force team
were neither restraining nor surrounding the accused. There was no force used
to prevent the accused from driving away with the said Saga car. On the
contrary, what was transpired on that fateful night, in this Court's considered
view, was just an inquiry made by PW1 to the accused. Nothing more. Thus,
the accused was not, for all intents and purposes, under arrest.

[55] Even if the approach taken by this Court in the preceding paragraph is
wrong, this Court hastens to add that the statement by the accused was made
to PW1 who was a corporal below the rank of Inspector at that time. Again, it
does not fall squarely within the purview of s 37B(1) of the Dangerous Drugs
 PP
pg 22 v. Cheong Kim Hui [2021] MLRSU 78

Act 1952. Ab Karim Haji Ab Rahman J in PP lwn. Mohammad Habibul

Hassan Khan [2020] MLRHU 857 at para 28 says:

[28] Mahkamah ini mendapati pernyataan itu boleh dibuat dihadapan

SP4 seorang Hall Warden Universiti kerana Hall Warden Universiti
tidak termasuk dalam ruang lingkup kehendak s 37B(1) Akta Dadah
Berbahaya 1952. Seksyen 37B(1) menyatakan:

[56] The learned judge further explained at para 29 where:

[29] Seksyen 37B(1) memperuntukkan perkara mengenai pernyataan

yang dibuat "to or in the hearing of any police officer of or above rank
of Inspector or any senior custom officer' yang tentunya SP4 bukan
tergolong dalam pegawai-pegawai berkenaan. Oleh itu Mahkamah ini
memutuskan kehendak perenggan 37B(1)(a) dan (b) tidak terpakai dan
pernyataan OKT dihadapan SP4 bahawa barang itu adalah ganja
relevant dan boleh diterima. Releventnya (SIC) adalah setakat
menunjukkan pengetahu (SIC) Tertuduh mengenai barang di dalam
beg itu adalah "cannabis" tidak lebih dari itu.

[57] From the above quoted case, this Court is convinced to accept the
admissibility of the statement made by the accused to PW1, a corporal, and it
is only relevant insofar as to the knowledge of the accused on exh 9(1 - 20).

[58] From the circumstances of the case and guided by Chan Pean Leon
(supra), it is of this Court's view to invoke the presumption under s 37(d) of the
Dangerous Drugs Act 1952. It is presumed that the accused had knowledge of
the impugned drugs and the legal burden shifted to the accused to rebut the
presumption on the balance of probabilities.

Chain Of Evidence

[59] Pertaining to the movement of the exhibits from the time it was
discovered by PW1 until the time it was produced to PW3 by PW5, this Court
finds that there was no break in the chain of evidence. This Court is satisfied
that exhibit P7, exhibit P8 and exhibit P9(1-20) were the same seized by PW1.

[60] At the end of the prosecution's case, after analysing the evidence given by
5 prosecution's witnesses and the documents tendered into this Court together
with the submissions submitted by both counsels, on a maximum evaluation
as guided in Mohd Radzi Abu Bakar (supra), the prosecution has succeeded to
prove a prima facie case against the accused on both charges. Thus, the
accused is called to enter his defence.

[61] The options required under s 173(ha) of the Criminal Procedure Code
have been explained in a language conversant to the accused.

The Defence Case

[62] The case was fixed for continued trial on 8 September 2021. The defence
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 23

decided to call upon the accused to give his sworn testimony from the witness
box.

[63] It is of the accused's evidence that on the day of his arrest, a friend known
to the accused for about 5 months, by the name of Chang Tick Jun, called the
accused to take him for a meal at a restaurant unknown to the accused. The
accused drove the said Saga car belonging to his brother and was shared
between the accused and his friends.

[64] According to the accused, Chang Tick Jun brought with him a bag and
put it inside the car. When Chang Tick Jun went out of the car, he did not
bring the bag with him. The accused did not ask Chang Tick Jun about the
contents in the bag.

[65] After a while, a group of policemen approached the accused who was
waiting in the said Saga car. The police asked the accused whether he is guilty
of any sort and inquired from the accused what is in the bag under the front
seat of the driver's seat in the said Saga car. The accused responded that he did
not know what is in the bag and it was belonging to his friend, Chang Tick
Jun. He requested the policemen to wait for his friend to come back. However,
Chang Tick Jun did not turn up.

[66] The accused further testified that during recording his statement, he did
inform the police about the owner of the bag. When the police confiscated his
phone, he was unsure whether at that time, did he give Chang Tick Jun's
contact number to the police or not.

Burden Of Proof At The End Of The Defence Case

[67] This Court must consider all the evidence adduced in court and to decide
whether the prosecution has proven his case beyond reasonable doubt as
enshrined under s 173(m) (i) of the Criminal Procedure Code.

[68] If the prosecution has successfully proven his case beyond reasonable
doubt, this Court has to find the accused guilty and consequentially be
convicted for the offences charged under s 173(m) (ii) of the Criminal
Procedure Code.

[69] This Court refers to the case of Balachandran v. PP [2004] 2 MLRA 547;
[2005] 2 MLJ 301; [2005] 1 CLJ 85; [2005] 1 AMR 321. It states that:

... Proof beyond reasonable doubt involves two aspects. While one is
the legal burden on the prosecution to prove its case beyond
reasonable doubt the other is the evidential burden on the accused to
raise a reasonable doubt. Both these burdens can only be fully
discharged at the end of the whole case when the defence has closed
its case. Therefore a case can be said to have been proved beyond
reasonable doubt only at the conclusion of the trial upon a
consideration of all the evidence adduced as provided by s 182A(1) of
the Criminal Procedure Code. That would normally be the position
 PP
pg 24 v. Cheong Kim Hui [2021] MLRSU 78

where the accused has given evidence. However, where the accused
remains silent there will be no necessity to re-evaluate the evidence in
order to determine whether there is a reasonable doubt in the absence
of any further evidence for such a consideration. The prima facie
evidence which was capable of supporting a conviction beyond
reasonable doubt will constitute proof beyond reasonable doubt.

[Emphasis Added]

[70] Reference is also made to the case of Romi Amora Amir v. PP [2010] 3
MLRA 246; [2011] 4 MLJ 571; [2011] 1 CLJ 870, the Court of Appel decides
that:

[9]. To exacerbate matters, again in the grounds of judgment when

discussing the evidence at the defence stage, the learned judge made
no attempts to discuss the facts that led to the invocation of s 37(da) of
the Act or make a maximum evaluation of the evidence in relation to
it. This failure went against the enunciation of the Federal Court in
Balachandran v. PP [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1
CLJ 85; [2005] 1 AMR 321 in that a presiding judge must undertake a
maximum evaluation exercise at the end of the prosecution and again
at the defence stage....

[Emphasis Added]

[71]"Reasonable doubt" has been explained in the case of PP v. Saimin & Ors
[1971] 1 MLRH 91; [1971] 2 MLJ 16 that:

It has again been said that 'reasonable doubt' is the doubt which makes
you hesitate as to the correctness of the conclusion which you reach. If
under your oaths and upon your consciences, after you have fully
investigated the evidence and compared it in all its parts, you say to
yourself I doubt if he is guilty, then it is a reasonable doubt. It is a
doubt which settles in your judgment and finds a resting place there."
Or as sometimes said, it must be a doubt so solemn and substantial as
to produce in the minds of the jurors some uncertainty as to the verdict
to be given. A reasonable doubt must be a doubt arising from the
evidence or want of evidence and cannot be an imaginary doubt or
conjecture unrelated to evidence.

[Emphasis Added]

[72] From the legal authorities stated above, the defence has the burden to
show reasonable doubts based on the maximum evaluation to procure an
order of discharge and acquittal.

Whether The Statutory Presumption Under Section 37(dD) Of The Dangerous

Drugs Act 1952 Is Rebutted
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 25

[73] The invocation of the statutory presumption under s 37(d) of the

Dangerous Drugs Act 1952 attracts the need for the defence to rebut such
presumption on the balance of probabilities in so far as to the knowledge of the
accused on the impugned drugs. This has been elucidated in the case of
Muhamad Radhi Bin Yaakob v. Public Prosecutor [1991] 1 MLRA 158; [1991] 3
MLJ 169 at p 171; [1991] 1 CLJ 311, it states:

It is a well-established principle of Malaysian criminal law that the

general burden of proof lies throughout the trial on the prosecution to
prove beyond reasonable doubt the guilt of the accused for the offence
with which he is charged. There is no similar burden placed on the
accused to prove his innocence. He is presumed innocent until proven
guilty. To earn an acquittal, his duty is merely to cast a reasonable
doubt in the prosecution case. In the course of the prosecution case,
the prosecution may of course rely on available statutory presumptions
to prove one or more of the essential ingredients of the charge. When
that occurs, the particular burden of proof as opposed to the general
burden, shifts to the defence to rebut such presumptions on the
balance of probabilities which from the defence point of view is
heavier than the burden of casting a reasonable doubt, but it is
certainly lighter that the burden of the prosecution to prove beyond
reasonable doubt.

[Emphasis Added]

[74] In the case before this Court, this Court finds that the accused failed to
rebut the statutory presumption under s 37(d) of the Dangerous Drugs Act
1952 on the balance of probabilities on the following grounds.

[75] According to the evidence adduced by the accused, he did not know what
was contained in the Exhibit P7 placed under the front seat of the driver's seat
in the said Saga car as it belonged to his friend, Chang Tick Jun. He was
waiting for Chang Tick Jun who went out to buy meal. During recording his
statement, he was unsure whether he did give Chang Tick Jun's contact
number to the police as his phone was confiscated.

[76] Putting the accused's evidence against the evidence given by the
prosecution witnesses, none of the above was put to the witnesses during the
prosecution case by the defence especially on PW1, PW2 and PW5. This
Court finds that the evidence given by the accused that he did not give his
contact number to the police because his phone was confiscated, is
unreasonable and cannot be accepted. Reference is made to Exhibit P11 and
the evidence by PW1 and PW2, nothing to show that the phone of the accused
had been confiscated. Had this been done, surely, such an action must have
been reflected on Exhibit P11.

[77] The accused had an ample of time to convey any information to the police
about the whereabouts or the contact number of Chang Tick Jun to the police
as the accused had known Chang Tick Jun for about 5 months and it was
during the cross-examination by the learned Deputy Public Prosecutor that he
 PP
pg 26 v. Cheong Kim Hui [2021] MLRSU 78

testified; before the whole fiasco happened, Chang Tick Jun was the one who
called and asked the accused to accompany him to buy meal.

[78] Further, this Court finds that it is also unreasonable for the accused to say
that, during his cross examination by the learned Deputy Public Prosecutor, he
was afraid to give the contact number of Chang Tick Jun to the police as his
phone was confiscated. As a prudent man, whilst he is being investigated for
having with him any incriminating substances or suspected to have committed
an offence, it is crucial that he must make the police aware of the facts that he
is innocent by providing all the details required to avail himself from the
suspected crime so that the police investigations can be done, through and
through. However, in this case, none of that was made by the accused. In fact,
during the prosecution case, it was put by the learned defence counsel that the
name of the accused's friend is Cheng Teck Chun and not Chang Tick Jun. It
is rather odd for this to happen as what was said by the accused, he has been
friend with Chang Tick Jun for about 5 months. To aggravate the matter
further, such name was put by the defence counsel to PW5 only ie the
investigating officer and not towards PW1 and PW2 who confiscated the
impugned drugs and arrested the accused. Therefore, the evidence given by the
accused in his testimony that he had informed to PW1 and PW2 at the time of
the incident, is of recent innovation and thus, an afterthought.

[79] As alluded above, the evidence given by the accused is nothing more than
just a bare denial. It is trite that the defence of bare denial can never be a good
defence. Reference is made to the case of Shah Rehan bin Abdul Rahman v.
Pendakwa Raya [2015] 4 MLRA 168; [2015] 4 CLJ 71; [2015] 3 MLJ 337.

[80] Further, it is in this Court's considered view that such evidence is also an
afterthought and of recent innovation in so far as to the existence of Chang
Tick Jun and the fact whereby his phone was confiscated by the police. The
learned defence counsel must have been aware that, the defence case must be
put at earliest opportunity during the prosecution case from running the risk of
being criticised for having kept his defence "up his sleeves" so to speak and be
branded as a "recent innovation". Refence is made to the case of Pendakwa
Raya v. Johar Mustafa [2003] 4 MLRH 9; [2004] 5 CLJ 187.

[81] All the above considered, it is in the opinion of this Court that the accused
failed to rebut the statutory presumption of s 37(d) of the Dangerous Drugs
Act 1952 on the balance of probabilities in respect of his knowledge of the
impugned drugs.

[82] It was ventilated by the learned defence counsel that there were not
fingerprints found on the impugned drugs to pinpoint that such impugned
drugs belonged to the accused. On this point, this Court does not wish to
elaborate further as it has been discussed and answered at length herein above.
The argument put forth by the learned defence counsel on this point must fail.

[83] With respect to the custody and/or control of the impugned drugs, the
defence had failed to raise any reasonable doubts based on the reasons stated
in the preceding paragraphs herein.
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 27

Decision

[84] After considering all the evidence indicated above, this Court finds that
the prosecution has successfully proven their case against the accused on both
charges beyond reasonable doubt. In reliance to the case of Mat v. PP [1963] 1
MLRH 400; [1982] 1b MLJ 13; [1963] MLJ 263, this Court is satisfied beyond
reasonable doubt as to the accused's guilt and thus, must be convicted.

[85] In relation to the 1st charge, this Court finds the accused guilty and be
convicted under s 39A(1) of the Dangerous Drugs Act 1952.

[86] In relation to the 2nd charge, this Court finds the accused guilty and be
convicted under s 12(3) of the Dangerous Drugs Act 1952.

[87] Hence, the accused is ordered to put his mitigating factors before this
Court pass any sentence.

Mitigating Factors

[88] It was pleaded by the learned defence counsel that the accused is of 29
years of age. He is still a bachelor and taking care of his mother aged 50- year-
old and his sister. His income came from his work as a lorry driver with
monthly income of RM1,300.00. Due to the movement control order during
the COVID 19 pandemic, his has limited source of income. He regretted his
crime and not to commit the same offence or any other offences in the future.

[89] Further, this is the first offence committed by the accused and has never
convicted for any offences. The learned defence counsel has referred to PP v.
Wan Hasrul Nizam Wan Hizamuddin [2017] 3 MLRH 208; [2017] 10 MLJ 68;
[2017] 4 CLJ 389 and Nor Afizal Azizan v. PP [2012] 5 MLRA 20; [2012] 6
MLJ 171; [2012] 6 CLJ 370.

[90] From the aforesaid, the learned defence counsel pleaded that by giving
lenient sentences, the public interest is served and best served if the accused is
living his life to an honest living. Reliance is made to Rex v. Kenneth John Ball
[1951] 35 Cr App R 164.

Aggravating Factors

[91] In responding to the arguments by the defence, the prosecution has

pleaded for severe sentences against the accused on both charges.

[92] The learned Deputy Public Prosecutor has pointed out the case of
Pendakwa Raya v. Abdul Halim Bin Ishak & Anor [2013] MLRAU 235; [2013]
9 CLJ 559. It was held by the Court of Appeal that a severe sentence must be
warranted against the drug offenders to show the element of denunciation.

[93] The court must also take into consideration the public interest and the
amount of the drugs involved. Reliance has been placed on PP v. Ooi Teng
 PP
pg 28 v. Cheong Kim Hui [2021] MLRSU 78

Chian [2005] 2 MLRA 199; [2006] 1 MLJ 213; [2005] 4 CLJ 557; [2006] 2
AMR 136.

[94] Furthermore, it was further ventilated by the learned Deputy Public

Prosecutor that the cases involving drugs are rampant as in Tia Ah Leng v.
Public Prosecutor [2004] 2 MLRA 284; [2004] 4 MLJ 249; [2004] 4 CLJ 77;
[2004] 5 AMR 93.

[95] Having said of the above, the prosecution has pleaded for severe sentences
be imposed on the accused as lessons, considering the weight of the drugs, to
wit, 5.11 grammes of MDMA and 5.50 grammes of Ketamine as exhibited as
Exhibit P9(1-20). The prosecution has also called five prosecution witnesses to
prove their case.

Sentencing

[96] Given the mitigating and the aggravating factors put forward by both
parties, the accused was sentenced to:

i. The 1st charge - an imprisonment term for a period of forty (40)

months from the date of conviction ie, 30 September 2021 and four (4)
strokes of rattan; and

ii. The 2nd charge - an imprisonment for a period of eighteen (18)

months from the date of conviction ie, 30 September 2021.

(Both sentences run concurrently).

[97] The reasons for both sentences are as herein below.

The Sentencing Principles

[98] It is trite that once a person is found guilty and convicted, the court shall
pass sentence according to law.

[99] It was observed by Mohamed J (as His Lordship then was) in Public
Prosecutor v. Jafa Daud [1981] 1 MLRH 800; [1981] 1 MLJ 315 where it states:

A 'sentence according to law' means that the sentence must not only
be within the ambit of the punishable section, but it must also be
assessed and passed in accordance with established judicial principles.
In assessing sentence, one of the main factors to be considered is
whether the convicted person is a first offender. It is for this purpose
that before passing sentence, a Magistrate is required to call for
evidence or information regarding the background, antecedent and
character of the accused.

[Emphasis Added]

(see also Zaidon Shariff v. Public Prosecutor [1996] 3 MLRH 34; [1996]
 PP
[2021] MLRSU 78 v. Cheong Kim Hui pg 29

4 CLJ 441 and Bhandulananda Jayatilake v. Public Prosecutor [1981] 1

MLRA 304; [1982] 1 MLJ 83; [1981] )

[100] It is in the forefront of mind that the utmost consideration is of public

interest. Reference is made to PP v. Idzham Shafiee [2006] 2 MLRH 368;
[2006] 4 MLJ 236; [2006] 6 CLJ 243.

[101] In this case, both sentences were given within the prescribed punishment
under s 39A(1) of the Dangerous Drugs Act 1952 and s 12(3) of the Dangerous
Drugs Act 1952; respectively. This Court adopts the principle enunciated in
PP v. Sim Joo Liong [2014] MLRHU 1340.

[102] Hence, in this case, this Court must make an exercise to balance between
the public interest and the interest of the accused.

[103] It is the considered view of this Court that the prescribed punishment
under s 39A(1) of the Dangerous Drugs Act 1952 and s 12(3) of the Dangerous
Drugs Act 1952 are crystal clear to show the intention and the seriousness of
the Parliament so that the offence committed must be judged seriously for the
public interest. Therefore, such intention must be reflected through the
sentences imposed by our courts in accordance with law.

[104] As submitted and pointed out by the learned Deputy Public Prosecutor
to the case of Public Prosecutor v. Ooi Teng Chian (supra) at p 229 para 25
where the Federal Court states:

[25] It is well establised that sentencing in drug offences must reflect

the public interest to be served as it is an on-going national problem.
The weight of the drugs involved is another factor to be considered. In
this case, the amount of dangerous drugs involved is very substantial.
In such circumstances, neither the guilty plea of the accused nor the
fact that he is a first offender can be considered to favourably in favour
of the accused. Thus, we were of the view taht the sentence imposed
by the learned trial judge was unadequate. According, we increased
the term of imprisonment to 15 years. The imposition of the 10 strokes
of rattan was retained.

[105] In Tia Ah Leng v. Public Prosecutor (supra), the Court of Appeal was of
the opinion that the effort of the legislature to curb and deter drug related
offences must be upheld and supported and that the courts should also help to
curb these activities by imposing stringent punishments provided by the law.
The Court of Appeal agreed and refered to the cases of Loh Hock Seng & Anor
v. Public Prosecutor [1979] 1 MLRA 264; [1980] 2 MLJ 13 and Public
Prosecutor v. Loo Choon Fatt [1976] 1 MLRH 23; [1976] 2 MLJ 256.

[106] Having said aforesaid, this Court views that both sentences were given
appropriately given the facts and the circumstances of this case. The amount of
the impugned drugs found with the accused was quite substantial involving
two different types of drugs defined under the Dangerous Drugs Act 1952. In
respect of the mitigating factors put forth by the learned defence counsel
 PP
pg 30 v. Cheong Kim Hui [2021] MLRSU 78

whereby the accused is taking care of his 50-year-old mother and his sister by
working as a lorry driver with monthly income of RM1,300.00 and also a first
time offender are not sufficient to justify lesser punishments. It carries less
weight against the public interest on the scale of justice.

[107] In addition to that, the whole trial has taken time and cost of the parties
involved. Hence, the accused cannot be justified to have lesser punishments in
contrast to the case of Zaidon Shariff v. PP (supra).

[108] In a word, both sentences given were justified by taking into account the
facts and circumstances of this case and thus, passed in accordance with law.

Conclusion

[109] Based on the facts and circumstances herein above, this Court finds the
accused guilty and be convicted under s 39A(1) of the Dangerous Drugs Act
1952 and s 12(3) of the Dangerous Drugs Act 1952 and sentenced accordingly.
This Court so orders.