THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 32 ENGLISH

Harvinder Singh A/L Joginder Singh v Public Prosecutor and Another Appeal
Suit Number: Criminal Appeal Nos. J-05(SH)-34-01/2016 & J-05(SH)-36-01/2016 

Criminal Law – Dangerous Drugs Act 1952 – Possession of drugs under section 6 of the Dangerous Drugs Act 1952 – Trafficking in drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952

Criminal Law – Whether the accused had knowledge of the drugs – Whether the accused had full or partial possession of the drugs – Whether there was affirmative evidence of trafficking in drugs

JUDGMENT

[1] For the purpose of this judgment, the parties shall be referred to as they were in the High Court at Johor Bahru. Therein the accused was levelled with the following charge:

"Bahawa kamu pada 25 November 2013 jam lebih kurang 9.00 malam, di tempat letak kereta di tepi Jalan Jati, Nusa Bestari Jaya, dalam daerah Johor Bahru, dalam negeri Johor Darul Takzim, telah didapati mengedar dadah berbahaya jenis cannabis berat bersih 4854 gram. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a), Akta Dadah Berbahaya, 1952, dan boleh dihukum di bawah seksyen 39B(2), Akta yang sama.”

[2] At the end of the defence’s case, the learned trial judge found that the accused was only in passive possession of the said drugs. Consequently, the charge against the accused was amended to one of mere possession under s.6 of the Dangerous Drugs Act, 1952 (hereinafter referred to as the ‘DDA’) and punishable under s.39A(2) of the same. Accordingly, the accused was sentenced to 14 years of imprisonment and 10 strokes of the rattan.

[3] Aggrieved by the said decision, both the parties embarked upon these appeals. Criminal Appeal No. J-05(SH)-34-01/2016 is the accused’s appeal against his conviction and sentence upon the charge as amended by the learned trial judge under s.6/39A(2) of the DDA, whereas Criminal Appeal No. J-05(SH)-36-01/2016 is the Public Prosecutor’s appeal against the said amendment and the eventual conviction and sentence thereunder.

[4] We allowed the Public Prosecutor’s appeal by a majority decision, our learned sister, Justice Nallini Pathmanathan, dissenting, and found the accused guilty of the offence as originally preferred against him under s.39B(1)(a) of the DDA and accordingly sentenced him to suffer the death penalty under s.39B(2) of the same. Correspondingly, we dismissed the accused’s appeal for want of merit. We now proffer our grounds.

[5] For practical purposes, the issues raised by the parties herein will be handle interchangeably.

The Case For The Prosecution

[6] Acting upon information received relating to a drug trafficking activity, on 25.11.2015, SP-8 (Insp. Satisyaselan a/l Balakrishnan) with members of his team of police officers conducted a surveillance exercise within the vicinity of Jalan Jati, Nusa Bestari Jaya, Johor Bharu. He arrived at the scene at about 8.15 p.m.

[7] At about 8.50 p.m., SP-8 saw a Perodua Viva motorcar bearing the registration number JMQ 4755 passed by where he was and then stopped at the parking lot along Jalan Bestari Jaya, Johor Bahru, as indicated in the charge.

[8] SP-8, together with members of his team next approached the said motorcar and introduced himself as a police officer to the driver of the said motorcar. SP-8 identified the accused as the driver of the said motorcar. He was alone inside the motorcar.

[9] The accused switched off the motorcar engine and came out of the motorcar as instructed by SP-8’s.

[10] The accused was physically examined. However, nothing incriminating was found upon his person.

[11] SP-8 next proceeded to investigate the inside of the said motorcar. He found two (2) plastic bags at the footrest of the front passenger seat. SP-8 opened the said plastic bags and found:

(i) inside the plastic bag with the printed word ‘MASLEE’ (exhibit P10A) was a blue box with the word ‘SUSTAGEN’ (exhibit P10A(1)) printed on it. Inside this blue box were 2 slabs of compressed plant materials suspected to be cannabis wrapped in 2 aluminium foils and transparent plastic packages (exhibits P10A(i) and P10A2(ii) respectively); and

(ii) inside the plastic bag with the printed words ‘RED MODANI BY MODANI’ (exhibit P10B) was a cake box with the words ‘MAYFLOWER CAKE HOUSE’ printed on it (exhibit P10B(1)). Inside this cake box were 3 slabs of compressed plant materials suspected to be cannabis wrapped in 3 aluminium foils (exhibits P10B(i)(ii) and (iii) respectively).

[12] SP-8 thereafter effected the arrest of the accused and the seizure of the said incriminating exhibits.

[13] Pursuant to the arrest of the accused, SP-8 together with his team, proceeded to raid SP-4’s house (Paraswaran a/l Balan, also known as Prem) and upon investigation, found ‘syabu’ in the said house. SP-4 was promptly arrested.

[14] SP-8 said that he handed the accused and the incriminating exhibits to the investigating officer, SP9 (Insp. Siri bin Piuh), soon after the arrest of SP-4.

[15] The chemist, SP-3 (Liew Chyi), testified that he had analysed the 5 packages (exhibits P10A1(i), P10A2(ii), P10B(i), (ii) and (iii)) and found it to contain a total of 4854 grams of cannabis (hereinafter referred to as ‘the said drugs’) as defined under s.2 of the DDA and listed in the First Schedule of the Act. SP-3 also prepared a report of her analysis, exhibit P13.

[16] The learned trial judge was satisfied that on the facts and evidence, the prosecution had established a prima facie case against the accused upon the charge preferred and hence, ordered the accused to enter his defence.

The Case For The Defence

[17] The accused gave evidence on oath.

[18] On 25.11.2013, between 7.00 p.m. to 7.30 p.m., he went to Taman Munshi Ibrahim, Tampoi, to visit his friend, Prem (SP-4).

[19] He went on a motorcycle with the registration number JPN 658. He did not carry anything with him except his helmet and jacket. Her mother, Jito Kaur a/p Mal Singh (DW-2), confirmed the same in her testimony.

[20] He arrived at SP-4’s house between 8.30 p.m. to 8.40 p.m. As he was removing his helmet and jacket, SP-4 gave him the key to his motorcar and told him to pick-up his friend named ‘Scientist’ who was then waiting at Desa Bestari Golf Club.

[21] He parked his motorcycle outside SP-4’s house and left his helmet and jacket on the motorcycle.

[22] He said that the area where the motorcar was parked was a bit dark. He took the motorcar and drove off.

[23] He first noticed the two (2) plastic bags (exhibit P10A(1) and P10B(1)) at the front passenger footrest of the motorcar when he stopped at the traffic lights. There was a box in each of the plastic bag but he could not see its contents as they were wrapped.

[24] He called SP-4 to ask him about the two plastic bags, wherein SP- 4 told him to leave the boxes in the motorcar and not to disturb them.

[25] He thought that the box in one of the bags contained baby milk powder because he saw the words ‘SUSTAGEN’ printed on the box.

[26] The accused arrived at Desa Bestari Golf Club at about 8.50 p.m. to 9.00 p.m. He parked the motorcar next to Hong Leong Bank. He was about to call ‘Scientist’ when SP-8 came and knocked on the front driver’s seat window and introduced himself as a police officer.

[27] He was asked to step out of the car. He told SP-8 about ‘Scientist’ who was around the area and as soon as ‘Scientist’ appeared at the scene, the police gave chase. However, ‘Scientist’ managed to escape.

[28] The police conducted a body search on him and found nothing incriminating upon him.

[29] The police took out the boxes from the two plastic bags and took out a few packages wrapped in aluminium foils and found the contents to be compressed plant materials suspected to be cannabis.

[30] He disagreed that he was shivering when the police was investigating the contents of the 2 boxes but admitted that he was shocked when told that the boxes contained cannabis.

[31] He told the police that SP-4 gave him the motorcar. Subsequently he took the police to SP-4’s house.

[32] The police found ‘syabu’ at SP-4’s house and as a result SP-4 was arrested.

[33] He reiterated that it was not true that he had borrowed the motorcar at 6.30 p.m. as he was still at his house during that hour.

[34] He said that he arrived at SP-4’s house between 8.30 p.m. to 8.40 p.m. and was arrested by the police at about 9.00 p.m.

[35] He produced his cautioned statement (exhibit D24) in evidence to fortify his defence.

[36] The learned trial judge found that the accused’s defence was premised upon the contention that he had no knowledge that the two plastic bags (exhibits P10A and P10B) inside the motorcar contained the impugned drugs.

[37] The learned trial judge also found that the evidence relating to ‘Scientist’ and that SP-4 had asked the accused not to disturb the bags inside the car were never mentioned in the accused’s cautioned statement, D24. However, the accused had mentioned that he saw the two plastic bags at the footrest but did not know the contents of the bags. This is consistent with the accused’s evidence in court.

[38] The trial judge also found that the accused had possession of the said motorcar momentarily i.e. for only 20 minutes from the time he started to drive the motorcar until he was arrested. Within that time, the accused could not have had the opportunity to examine the contents of the two bags.

[39] The learned trial judge further found that there was no affirmative evidence that the ingredient of the charge in respect of trafficking had been proved without the aid of presumption or on direct evidence. The defence had succeeded in casting a reasonable doubt upon the prosecution case on the original charge under s.39B(1)(a) of the DDA. On the other hand, the learned trial judge found that the prosecution had succeeded in proving an offence of passive possession of cannabis under s.6 of the same-see p.33, Jilid 1, RR. Hence, the charge was accordingly amended and the accused was convicted of an offence under s.6 and was sentenced under s.39A(2) of the DDA thereof.

The Appeals Before Us

[40] The Public Prosecutor posited the following grounds:

(i) the learned trial judge was in error when he found that the accused had no knowledge that the two (2) plastic bags (exhibits P10A and P10B) inside the motorcar contained the impugned drugs;

(ii) the learned trial judge was in error when he found that the prosecution had only succeeded in proving that the accused was only in passive possession of the said drugs; and

(iii) the learned trial judge was in error when he found that no affirmative evidence of trafficking had been proven without the aid of the presumption or on direct evidence.

[41] Meanwhile, learned counsel for the accused canvassed the following:

(i) the learned trial judge erred in law when he amended the charge at the end of the defence’s case, instead of at the end of the prosecution’s case;

(ii) there is no record of the accused’s conviction or finding of guilt for any offence;

(iii) there is no appreciation of the evidence at the close of the prosecution’s case;

(iv) SP-4 is not a credible nor a reliable witness; and

(v) the learned trial judge had failed to consider the version favourable to the accused.

Our Decision

[42] We will first deal with the Public Prosecutor’s appeal in Criminal Appeal No. J-05(SH)-36-01/2016.

Ground (i) - knowledge of the accused in respect of the said drugs

[43] At pp.23 and 24 of Jilid 1, Rekod Rayuan (‘RR’), the learned trial judge in his grounds of judgment found that the said drugs were found in the two (2) plastic bags placed at the footrest of the front passenger seat of the motorcar driven by the accused. The accused was alone in the motorcar, and on the facts and evidence as presented by the prosecution, the accused was deemed to have possession and knowledge that the contents of the two plastic bags were dangerous drugs. Hence, the prosecution had succeeded in proving that the accused had possession of the said drugs and on the issue of trafficking, it could rely on the acts of trafficking as defined under s.2 of the Act, in particular, the acts of transporting and concealing the said drugs inside the car.

[44] However, at the end of the defence’s case, the learned trial judge found, amongst others, at p. 32, 33, Jilid 1, RR:

“...The Court had also observed that the period the accused was at SP4’s house was between 8.30 p.m. to 8.40 p.m. and he was arrested at about 9.00 p.m. as stated in the charge sheet exhibit P2 which was about 20 minutes after he had driven the motorcar. The evidence that was led by the accused and by the prosecution was that he did not stop anywhere except at the place where he was arrested. Within the 20 minutes that the accused had the motorcar with him, there was no opportunity for the accused to examine the contents in the two boxes P10A and P10B respectively. It could be said that the accused possession of the motorcar was only momentarily i.e. just about 20 minutes before he was arrested. However the incontrovertible facts of the case was that the accused admitted seeing the two plastic bags on the footrest at the front passenger seat of the said motorcar. It was the accused own admission that he saw the two plastic bags at the footrest at the front seat of the said motorcar and thought that they were baby powder milk because he saw the word ‘Sustagen’ written on one of the boxes. The court was of the view that there was no affirmative evidence that the ingredient of charge in respect of trafficking had been proved by the prosecution without the aid of the presumption or on direct evidence.”

[45] Earlier, in response to the accused’s testimony that he thought one of the boxes contained baby milk powder as the word ‘Sustagen’ was printed on it, the learned trial judge opined:

“...The Court was of the view that it was a reasonable inference to draw after seeing one of the boxes had the word ‘Sustagen’ written on it that the contents could be powder milk for infant.”

[46] Upon these findings by the learned trial judge, the learned Deputy Public Prosecutor (‘DPP’) submitted that the learned trial judge had found that the accused had no knowledge of the contents of the boxes inside the two plastic bags and that there is no affirmative evidence to prove the ingredient of trafficking in the said drugs without the aid of the presumption or direct evidence. Hence, upon these grounds the charge against the accused was reduced to one of mere possession.

[47] The learned DPP further submitted that what the learned trial judge did was wrong in law. When assessing the defence, he cannot revisit his earlier findings which formed the basis of calling the accused to enter his defence and substituted it with something else. It was also submitted that the learned trial judge was blowing hot and cold on the issue of the accused’s knowledge of the said drugs inside the plastic bags and trafficking in the said drugs. Finally, the learned DPP brought our attention to the following ruling by the Federal Court in Duis Akim & Ors. v PP [2013] 9 CLJ 692, at p.70:

"[38] We note that when assessing the defence the learned trial judge surprisingly revisited his earlier findings upon which he called for the defence. Such approach is quite contrary to the principle of maximum evaluation of the evidence adduced at the close of the prosecution’s case. Indeed in his judgment the learned trial judge made it very clear that he had conducted a maximum evaluation of the evidence adduced by the prosecution before calling for the defence.

[39] In PP v Khong Soh [1966] 1 LNS 141; [1966] 2 MLJ 137 Macintyre J said this at p. 139:

Having held that a prima facie case had been made out against the respondent, the learned president should have given his reasons for holding why the respondent’s evidence had created a reasonable doubt in his mind.

[40] Thus, in the present case the learned trial judge, having given the evidence before him the maximum evaluation before calling for the defence, should have therefore focused on whether the defence had cast a reasonable doubt in the prosecution’s case and even if it did not, whether as a whole the prosecution had proved its case beyond reasonable doubt before finding the appellants innocent or guilty for the offence as charged.”

[48] We were entirely with the submissions of the learned DPP. As suggested by high authority, the learned trial judge cannot probate and reprobate over his earlier findings of the accused’s knowledge in respect of the said drugs. Rather, he should have focused on whether the defence had cast a reasonable doubt in the prosecution’s case. Going by his ruling that the accused had no knowledge of the said drugs inside the plastic bags, then the proper ruling should be an outright acquittal of the accused of the charge levelled against him and not amending the charge to one of mere possession as one of the ingredient of possession is also the presence of knowledge of the drugs.

[49] We shall now evaluate the propriety of the learned trial judge’s finding in respect of the accused’s knowledge relating to the said drugs and the resultant amendment of the charge preferred against the accused.

[50] In respect of the same, SP-4 said that at the material time, the motorcar JMQ 4755 was registered under his wife’s name, SP-6 (Kalarani a/p Palanival). He knew the accused as a friend and he had lent his motorcar to the accused a number of times in the past. The last time he lent his motorcar to the accused was on 25.11.2013 (the day of the accused’s arrest) at about 6.30 p.m. The accused had asked SP-4 to use the said motorcar as the accused had wanted to go out.

[51] SP-4 continued that he gave the key to the motorcar to the accused. He further testified that when he handed over the motorcar key to the accused, the 2 plastic bags marked as P10A and P10B were not inside the motorcar.

[52] SP-4 also testified that his wife (SP-6) did not use the said motorcar on 25.11.2013.

[53] In cross-examination, SP-4 denied that he had asked the accused to pick-up someone by the name of ‘Scientist’ at the Boss Club. SP-4 also said that he handed over the motorcar to the accused at his friend’s house, one Balan, at Taman Munshi Abdullah, at about 6.30 p.m. and that when the accused arrive at Balan’s house, he had with him only a jacket and a helmet.

[54] SP-6 testified that she used the motorcar to ferry her children to school. She said the last time she saw the motorcar was on 25.11.2013. On that date she did not use the motorcar to ferry her children as it was a school holiday. SP-6 disagreed that the drug found inside the motorcar belonged to her husband (SP-4).

[55] According to her recollection of the events on 25.11.2013, SP-4 had used the said motorcar at about 5.30 p.m. and had come back at about 6.00 p.m. and he went out again at about 8.00 p.m. and returned home at about 8.30 p.m. After dinner, SP-4 went out again and it was only 2 days later that the police came to tell her that SP-4 had been arrested in connection with a drug offence.

[56] The crux of SP-4’s evidence is that when he handed the said motorcar to the accused, the two plastic bags containing the said drugs were not anywhere inside the motorcar (see p.50, Jilid 1, RR). He said that it was the accused who had wanted to borrow the said motorcar and denied that he had handed the motorcar to the accused and had asked the accused to fetch ‘Scientist’ using the said motorcar. SP-4’s testimony in respect of the same was not challenged by the defence. It was also not the prosecution’s case that SP-4 had called the accused over to his house to run errand for him.

[57] In addition, it was not suggested to SP-4 that the drugs found inside the two plastic bags in the motorcar were his or that SP-4 had placed the drugs inside the motorcar or that SP-4 had wanted to entrapped the accused. SP-4’s evidence was intact and was uncontroverted until the end. More importantly, the learned trial judge did not find SP-4 to be an unreliable witness nor a witness unworthy of credit.

[58] In such event there is no reason to disbelieve SP-4’s testimony that at the material time of handing the motorcar over to the accused, the said incriminating exhibits were not inside the motorcar. The learned trial judge apparently had ignored and rejected the most vital part of SP-4’s testimony. Worst still the learned trial judge did not assign any reason whatsoever for so doing.

[59] It is apparent that the accused was solely in control of the motorcar from the time he borrowed the motorcar from SP-4 at about 6.30 p.m., until the time of his arrest whilst at the driver’s seat inside the motorcar at about 9.00 p.m. by SP-8 and his team (according to SP-4; or from 8.30 p.m./8.40 p.m. to 9.00 p.m. according to the accused). By reason of the same, he was thus also having in his custody or control the two plastic bags containing the said drugs placed at the footrest of the front passenger seat-see PP v Abdul Rahman Akif [2007] 4 CLJ 337; Parlan bin Dadeh v PP [2008] 6 MLJ 19; Khairuddin bin Hassan v PP [2010] 6 MLJ 145; and Aedy Osman v PP [2011] 1 CLJ 273. The presence of the two plastic bags inside the motorcar which was under the exclusive control and use by the accused at the material time, must necessarily give rise to a strong inference that the accused had the requisite knowledge that the two plastic bags contained the said drugs. As said by the Federal Court in PP v Abdul Rahman Akif (supra) “...again knowledge cannot be proved by direct evidence, it can be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite...”

[60] In addition, bearing always the evidence of SP-4 that the two plastic bags containing the said drugs were not inside the said motorcar when he handed the motorcar over to the accused and that the accused did not bring anything with him when he came to his house except his jacket and helmet, it is reasonable to make the fair inference that the accused had, somewhere along the way after leaving SP-4’s house, picked the two plastic bags containing the said drugs and placed it at the footrest of the front passenger seat of the motorcar. In such event he must have known the contents of the two plastic bags. Nonetheless, in the absence of an express admission by the accused, the prosecution was compelled to rely on circumstantial evidence, i.e the fact that the accused had physical control of the two plastic bags, to impute knowledge on the part of the accused of the drugs concealed inside the said two plastic bags. In all the circumstances of the case, there is indeed sufficient evidence to make an affirmative finding that the accused had mens rea possession of the said drugs.

[61] In our view, the accused’s defence that he had no knowledge of the drugs inside the two plastic bags is woefully indefensible against the entirety of the evidence stacked against him. On the same footing, we found that the learned trial judge’s finding that the accused had no knowledge of the said drugs inside the plastic bags is woefully out of sync with the entire evidence adduced before the court by both sides of the divide.

[62] Even if the accused’s possession of the said motorcar was only for about 20 minutes as contended by the defence and picked up by the learned trial judge (from between 8.30 p.m. or 8.40 p.m. when he took the car from SP-4 to 9.00 p.m. when he was arrested by SP-8), the accused still has all the time in the world to pick up the said drugs along the way before his arrest. 20 minutes is not a short time though. Only the accused has the answer where he went to after picking up the motorcar from SP-4 up to the time of his arrest by SP-8. The law does not require SP-8 to follow the accused from the moment the accused left SP-4’s house to make up a case against him. The law neither require the police witnesses to physically witnessed the accused picking up the said two plastic bags along his journey to fasten culpability upon him.

[63] In addition, the learned trial judge found that the accused’s testimony in Court that he had called SP-4 about the two plastic bags at the footrest of the front passenger seat and that SP-4 had told him to leave the plastic bags and not to touch them was not stated or mentioned in his cautioned statement, exhibit D24. Indeed the said finding by the learned trial judge was correct. In our view this evidence is very important to link SP-4 with the said drugs as was apparently attempted by the accused in his defence and also to show the accused’s lack of knowledge of the said drugs inside the two plastic bags. Yet the accused failed to mention the same in his cautioned statement. The accused’s omission to state such an important event in his cautioned statement goes into the root of his credibility. There is no excuse for the accused not to mention so in his cautioned statement as the same was the foundation of the crux of his defence. It fortified SP-4’s evidence without more that the two plastic bags containing the said drugs were not inside the motorcar at the material time he handed the motorcar over the accused.

[64] Now, learned counsel complained that SP-4 is not a credible witness on the grounds that SP-4 had contradicted himself when he said that there was nothing inside the motorcar at the material time he gave the motorcar key to the accused but at the same time said that he did not see the accused carrying anything except for his jacket and helmet when he came to Balan’s house to borrow his motorcar. We asked ourselves in what manner would these two statements contradict each other. We found none. We opined that PW-4 was merely narrating what he saw and knew factually when he handed the motorcar to the accused.

[65] Learned counsel also submitted that SP-4’s testimony that he handed the motorcar to the accused at 6.30 p.m. was contradicted by SP- 6 (his wife) when SP-6 said that up to 8.30 p.m. SP-4 was still at home having dinner. In addition SP-6 also testified that the accused took the motorcar at about 8.40 p.m. Learned counsel further submitted that there were also contradictions in respect of the motorcar alarm system amongst these witnesses.

[66] We agreed that there were contradictions in respect of the issues enumerated by learned counsel above. However, we were of the view that the said contradictions were minor and inconsequential on account that it did not detract the fact that the accused had indeed borrowed the said motorcar from SP-4. It is also of no consequence in the light of SP- 4’s uncontroverted testimony that at the time he handed the motorcar over to the accused, the two plastic bags containing the said drugs were not inside the motorcar. Further, it was not suggested to SP-4 that the said drugs were his or that the said drugs were placed inside the motorcar by him or that SP-4 had entrapped the accused.

[67] Learned counsel also complained that the learned trial judge did not take into account that SP-4 was also a drug addict and a mental patient. However, the law is trite that there is no presumption that just because SP-4 is a drug addict and a mental patient, then he is to be treated as a witness unworthy of credit and hence he should not be believed. He is entitled to credence until cogent reason for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances-see Balasingham v Public Prosecutor [1959] 25 MLJ 193; Megendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1. SP-4’s evidence will thus be assessed and weighed like that of any other witness and be subjected to the vagaries of cross-examination to test his veracity. Thereafter it is the trial judge’s role to make a finding on SP-4’s veracity with a view of whether to accept or to reject his evidence, in whole or in part, or not at all at the end of the trial, having seen and heard him. We found that the learned trial judge did not rule that SP-4 is a witness unworthy of credit. We have no reason compelling enough to find otherwise.

[68] On the same footing we found no evidence to suggest that SP-4’s mental condition is such that he is wholly incompetent to testify. The burden is upon the defence to provide proof of SP-4’s mental condition if they assert that SP-4 is not legally fit to testify on account of the same-see s. 103 of the Evidence Act, 1950.

[69] Learned counsel also submitted that SP-4 had indeed entrapped the accused with having possession of the said drugs. Again, the burden is upon the accused to prove that he had committed the offence as a result of the said entrapment by SP-4. We have scrutinised the evidence and found nothing to suggest that the accused had discharged the said burden. We have tooth-combed the entire Notes of Proceedings looking for evidence and reasons that would have propelled SP-4 to take such drastic measures to entrap the accused to commit a capital offence. We found none. Not a single piece of evidence was adduced to support the accused’s contention that he was entrapped by SP-4. Equally, not a single reason was advanced by the accused why SP-4 would want to entrap him. Further, it has not been shown that SP-4 have an axe to grind against the accused to propel him to manufacture such evidence and testify adversely against the accused in a capital offence. There is also nothing in the evidence to suggest that SP-4 had an oblique motive to fix the accused in the commission of a capital offence. Finally, there is nothing inherently improbable in the testimony of SP-4 to warrant rejection. Hence, in the event we found no merit nor substance in learned counsel’s submissions that the accused was entrapped by SP-4 to commit the offence.

[70] In addition, we do not think that the accused could raise this defence when it was never put to SP-4 that he had entrapped the accused or that he had placed the said drugs at the front footrest of the passenger seat of the motorcar or that the said drugs were his.

Grounds (ii) and (iii) - whether the accused was only in passive possession of the said drugs and evidence of trafficking in the said drugs

[71] At the end of the defence’s case, the learned trial judge, at the risk of being repetitive, said, amongst others, at p.32, 33, Jilid 1, RR:

“...It was the accused own admission that he saw the two plastic bags at the footrest at the front passenger seat of the said motorcar and thought that they were baby powder milk because he saw the word ‘Sustagen’ written on one of the boxes. The Court was of the view that there was no affirmative evidence that the ingredient of the charge in respect of trafficking had been proved by the prosecution without the aid of the presumption or on direct evidence.”

[72] Thereafter, the charge against the accused was reduced to one of mere possession under s.6 of the DDA and punishable under s.39A(2) of the same Act.

[73] It is most unfortunate that the learned trial judge did not assign any reason for the aforesaid finding. It appears that the said finding simply jumped out of nowhere.

[74] Hence, the learned DPP submitted that the learned trial judge had come to a wrong surmise and brought our attention to the following oft quoted passage from the Privy Council case of Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 at pp. 68, 69:

"To ‘traffic’ in a controlled drug so as to constitute the offence of trafficking under section 3 involves something more than passive possession or self­-administration of the drug; it involves doing or offering to do an overt act of one or other of the kinds specified in paragraph (a) of the definition of ‘traffic’ and trafficking in section 2.

...

...Generally, in the absence of an express admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus in the case of an accused caught in the act of conveying from one place to another controlled drugs in quantity much larger than is likely to be needed for his own consumption, the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explaination by him, be irresistible-even if there were no statutory presumption such as contained in section 15 of the Drugs Act.

As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them, and the more convincing the evidence needed to rebut it...”

[75] It was thus the further submission of the learned DPP that the conduct of the accused in carrying or transporting the said drugs in the manner he did falls squarely within the aforesaid dictum. In addition, the accused did not proffer any plausible explaination for carrying or transporting the said amount of drugs.

[76] We were with the learned DPP’s submissions. By all account the amount of drugs carried or transported by the accused is huge. It is in excess of 4 kilogrammes, whereas the statutory limit to trigger the presumption of trafficking is only 200 grammes. There was no plausible explaination from the accused to account why he had carried or transported such a huge amount of drugs in the manner he did except to aver that he had no knowledge of the said drugs at the footrest of the front passenger seat of the motorcar. The said drugs were carefully concealed to avoid detection by the authorities. In addition, there is no evidence that the said drugs were for the personal consumption of the accused. It is neither the accused’s defence that the said drugs were for his own consumption. It is also not in dispute that the quantity of the drugs involved is much larger than is likely to be needed for his own consumption. Hence, the inference arises from the quantity involved alone that the drugs were being carried or transported for the purpose of transferring possession of them to another person and not solely for the accused’s own consumption-see Ong Ah Chuan v PP (supra).

[77] In PP v Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193, the Federal Court opined that “...judging from the manner the drug was being carried, i.e. in small plastic packets and taking into account the total amount of the drug involved, the reasonable inference that may be drawn is that the respondent was in fact carrying it for the purpose of trafficking. And bearing in mind the large quantity of the drug involved, it cannot be seriously contended that the drug was for his own consumption...”

[78] Meanwhile, this Court in Wjchai Onprom v PP [2006] 3 CLJ 274, ruled that “...Here the appellant was caught conveying a large quantity of cannabis from Thailand to Malaysia. In view of the amount involved, it is safe to infer that the drugs was intended for a third person or persons, known or unknown. That other person or persons, may, to borrow Lord Diplock’s words, be the actual customer or a distributor or another dealer. So this is not a case of mere passive possession.”

[79] We found the accused in familiar territory. In all the circumstances of the case, it is reasonable and plain common sense to infer that the accused must have known of the existence of the drugs in the 2 plastic bags and in view of the large quantity and the manner it was packed and concealed, it could reasonably be inferred that the accused was carrying or transporting the same for the purpose of trafficking. Verily, on the facts and evidence, there is no need to even invoke the statutory presumption under 37(da) of the DDA to affirmatively find that the accused was trafficking in the said drugs.

Conclusion

[80] For all the reasons given, we allowed the Honourable Public Prosecutor’s appeal and correspondingly dismissed the accused’s appeal. The decision of the learned trial judge is set aside and substituted with a conviction under the original charge preferred against the accused. Accordingly the accused is sentenced to death by hanging by a rope around his neck until he expired under the law.

[81] My learned brother, Justice Kamardin Hashim has gone through this judgment in draft. He is with me.

Dated: 22nd January 2018

AHMADI HAJI ASNAWI
Judge
Court of Appeal, Malaysia

COUNSEL

For the Appellant: Dato Jagjit Singh a/l Bant Singh, T/N Jagjit Ariff & Co., Peguambela & Peguamcara

For the Respondent: Tetralina Bt. Ahmed Fauzi, Timbalan Pendakwa Raya, Jabatan Peguam Negara, 62100 Putrajaya

Legislation referred to:

Dangerous Drugs Act 1952, Sections 2, 6, 37(da), 39A(2), 39B(1)(a), 39B(2) , First Schedule

Evidence Act 1950, Section 103

Judgments referred to:

Aedy Osman v PP [2011] 1 CLJ 273

Balasingham v Public Prosecutor [1959] 25 MLJ 193

Duis Akim & Ors. v PP [2013] 9 CLJ 692

Khairuddin bin Hassan v PP [2010] 6 MLJ 145

Megendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1

Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64

Parlan bin Dadeh v PP [2008] 6 MLJ 19 

PP v Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193

PP v Abdul Rahman Akif [2007] 4 CLJ 337

Wjchai Onprom v PP [2006] 3 CLJ 274

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