THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 189 ENGLISH

Kang Tian Nam v Pendakwa Raya and Another Appeal
Suit Number: Rayuan Jenayah Nos. P-05(M)-73-02/2017 & P-05(M)-75-02/2017 

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal

Criminal law – Whether the appellants had exclusive possession of the car in which the impugned drugs were discovered – Whether the trial court failed to appreciate the defence of the appellants – Whether the evidence of a police officer ought to have been rejected as it was contradictory

JUDGMENT

INTRODUCTION

[1] The first appellant (Kang Tian Nam) and second appellant (Tok Chee Wei) were jointly charged in the Penang High Court with trafficking in 390 grams of methamphetamine. At the conclusion of the trial, the appellants were convicted and sentenced to death pursuant to s 39B(2) of the Dangerous Drugs Act 1952 (DDA 1952). This is the appellants’ appeal against their conviction and sentence.

[2] The charge preferred against the appellants is as follows:

"Bahawa kamu bersama-sama pada 20/11/13 jam lebih kurang jam 1.50 petang di hadapan rumah No. 5, Lorong Seri Tambun 5, Taman Tambun Mas 14100 Simpang Ampat, di dalam Daerah Seberang Perai Selatan di dalam Negeri Pulau Pinang telah mengedar dadah berbahaya jenis Methamphetamine seberat 390 gram dan dengan itu, kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta DADAH Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”

SALIENT FACTS

[3] The facts that were found by the learned trial Judicial Commissioner (JC) may be summarised as follows:

a) On 20.11.2013 at about 1:50 pm, ACP Mohd. Nasri bin Omar (SP5) and his team apprehended and detained a Honda Accord bearing registration No. PGJ 9389 in front of a house bearing postal address No. 5, Lorong Seri Tambun 5, Taman Tambun Mas, Simpang Ampat, Pulau Pinang. The 1st appellant was driving the car whilst the 2nd appellant was sitting in the front passenger seat.

b) SP5 approached the car and identified himself as a police officer. After the occupants in the car refused to comply with SP5’s instructions to open the doors, SP5 broke the front passenger side window. The 1st and 2nd appellants were arrested after they got out of the car. SP5 asked the appellants whether they were carrying anything illegal. After SP5 repeated his questions a few times, the 1st appellant indicated to the area below the driver’s seat. When SP5 then asked the appellants what was hidden under the driver’s seat, the appellants remained silent. The appellants appeared to be in a state of fear and anxiety. SP5 recovered a red plastic package and a black package under the driver’s seat. The said packages contained 390 grams of methamphetamine.

FINDINGS AT CLOSE OF PROSECUTION CASE

[4] In finding that the prosecution had made up a prima facie case and calling on the appellants to enter on their defence the learned JC made the following findings.

a) The learned JC found that the drugs had been properly identified and marked by the police and the chemist.

b) The analysis carried out by the chemist (SP4) had identified the substances in the red and black packages as methamphetamine which is listed in the First Schedule of the DDA 1952; as such the fact that the chemist did not in his witness statement say that substances were dangerous drugs within the meaning of s 2 of the DDA 1952 is not a material defect.

c) No adverse inference could be drawn against the prosecution’s failure to call four individuals who were arrested in the house where the 1st appellant resided. The four individuals were not in the car when the 1st and 2nd appellants were arrested.

d) The conduct and behaviour of the two appellants before and during the arrest was evidence of common intention on the part of the two appellants.

e) The existence of other person’s DNA in the car did not negate the evidence which showed that the appellants had joint possession, knowledge, control and custody of the drugs in question.

DEFENCE CASE

[5] The 1st appellant’s defence may be summarised as follows:

a) On the morning of 11.12.2013, he called his brother in law Ang Chin Hooi to return his Honda Accord motorcar. The 1st appellant wanted to use the car to go over to house No. 5. Taman Tambun Mas (‘Lim’s house’) to see one Lim Kheng Kok in order to (i) hand over a tenancy agreement to Lim, and (ii) to take back his Naza Citra motorcar. The 1st appellant also telephoned the 2nd appellant to ask him to accompany the 1st appellant to Lim’s house and to drive the Naza Citra motorcar back to the 1st appellant’s house.

b) At about 1:30 pm, Ang arrived at the 1st appellant’s house and handed over the Honda Accord motorcar and the car keys to the 1st appellant. The 1st appellant drove off with the 2nd appellant in the front passenger seat. At about 1:45 pm, they arrived in front of Lim’s house. The 1st appellant noticed a group of persons outside the house. Then about 10 individuals ambushed and surrounded the 1st appellant’s car. Brandishing guns they shouted at the appellants to get out of the car. The appellants were shocked, worried and apprehensive and feared being shot or robbed. Later one of the men identified himself as police and the front right passenger window was broken by the men. After the appellants got out of the car; there was no struggle as the appellants did not try to run away.

c) At the same time of the 1st appellant was being arrested, the police had also conducted an ambush at Lim’s house. The 1st appellant saw Lim being arrested by the police.

d) Meanwhile, the police examined the car and found a green and another black plastic bag under the driver’s seat. When the police asked him about the bags the 1st appellant denied any knowledge or ownership of the same. The two plastic bags could not be seen because they were hidden under the driver’s seat and hidden from sight. He denied showing SP5 the location of the two plastic bags in the car.

e) He informed the police that many other people stayed in his house and used his car, including Ang. Later, he brought the police to his house where the police arrested four persons in the house including Ang. The police also found drugs in Ang’s room.

[6] The 2nd appellant also give evidence in his defence which is as follows:

a) On the morning of the day in question the 1st appellant telephoned him and asked if he could accompany the 1st appellant to Lim’s house and to take back the 1st appellant’s Naza Citra motorcar. The 1st appellant also informed him that the tenancy agreement for Lim’s house was going to end and he wanted to talk to Lim about it.

b) When he arrived at the 1st appellant’s house at about 1:20 pm the 1st appellant informed him that Ang Chin Hooi will be handing over the Honda Accord motorcar to the 1st appellant. Later Ang Chin Hooi arrived and handed over the Honda Accord motorcar and the car keys to the 1st appellant.

c) After that the 2nd appellant entered the Honda Accord motorcar and sat on the front passenger’s seat whilst the 1st appellant sat in the driver’s seat.

d) As they were approaching Lim’s house their car was set upon by a group of men who later identified themselves as police officers. He was confused, worried and scared by the sudden turn of events and raised his hands for fear of being shot.

e) After the front passenger side windows were broken and the door unlocked, the 2nd appellant went out of the car where he was beaten. He was then handcuffed behind his back and made to sit down on the road facing away from the motorcar. Later the police came and told him and the 1st appellant that they had found plastic bags under the driver’s seat containing drugs.

f) The 2nd appellant denied having knowledge and possession of the drugs. He told the police party that he only accompanied the 1st appellant to Lim’s house.

FINDINGS OF THE HIGH COURT AT CLOSE OF DEFENCE CASE

[7] In holding that the appellants have failed to raise a reasonable doubt on the prosecution case the learned JC made the following key findings:

(i) The fact that the drugs were found under the driver’s seat and could not be seen with the naked eye did not preclude the fact that the appellants have knowledge and possession of the drugs. Knowledge of the drugs could be inferred from the surrounding circumstances.

(ii) When the drugs were being examined by the police party the 1st appellant remained silent. The 2nd appellant’s evidence that he told the police party that he did not have any knowledge of the drugs is an afterthought as it was not put to SP5 in cross-­examination. If the appellants did not know of the existence of the drugs they would have said so immediately after being told of the discovery of the drugs under the driver’s seat.

(iii) On the evidence it is clear that the appellants had knowledge of the drugs that was found in the car. The defence of the appellants that they did not put up a struggle or make any attempt to run away was rejected as they had no opportunity to do so as they were suddenly surrounded by the police party before they could even begin to realise that they were in danger of being arrested.

(iv) The learned JC rejected the 1st appellant’s evidence that he wanted to see Lim to hand over the tenancy agreement because no tenancy agreement was found in the car.

(v) Even though the learned JC accepted the fact that the 2nd appellant was only a passenger in the car, the learned JC concluded that the 2nd appellant’s defence was a lie because it was inconsistent with the overt acts of the appellants.

SUBMISSION

[8] Before us, learned counsel for the appellants advanced three principal grounds of appeal: (i) the appellants did not have exclusive possession to the Honda Accord in which the drugs were discovered, (ii) the learned JC failed to appreciate the defence of the appellants, and (iii) SP5’s evidence ought to have been rejected as it is contradictory.

[9] On the first ground, learned counsel argued that the cautioned statement of Ang Chin Hooi (exh. D33) confirmed that Ang stayed at the same house with the 1st appellant. Ang had admitted to being a drug addict and had bought drugs from his friend. Ang had used the Honda Accord in the morning of the day in question. Ang had returned the Honda Accord to the 1st appellant on the day in question. Subsequently, the police raided Ang’s house and arrested him. The police recovered drugs and drug paraphernalia from Ang’s room in the house. Further, neither of the appellants’ DNA was found on items seized in the Honda Accord. The absence of the appellants’ DNA corroborates the defence that other persons had access to the Honda Accord. As such, it is not safe to hold and find the appellants to have sole custody, control and possession of the Honda Accord and the drugs recovered therein.

[10] Secondly, learned counsel argued that according to SP5’s police report (exh. D26) SP5 and a police party had conducted a raid on Lim’s house where they arrested Lim Kheng Kok on the day in question prior to apprehending the appellants. This proves the appellants’ story that when they arrived the police was in the midst of conducting a raid at Lim’s house. SP5 is not a credible witness as SP5 had initially denied that he had arrested Lim Kheng Kok at the 1st appellant’s house on the day in question. Further, the appellants’ defence is also corroborated by another police report by SP5 (exh D28) which confirmed that after the 1st appellant led the police to the 1st appellant’s house, SP5 arrested Ang Chin Hooi and the other occupants and recovered drugs in Ang’s room. Learned counsel also argued that the Alcontara Notice had been given as the defence version had been put to the prosecution at the earliest opportunity and was not rebutted or verified by the prosecution even though they had ample opportunity to do so. As such, the defence is not an afterthought or a bare denial.

[11] Lastly, learned counsel argued that SP5’s evidence is contradictory. SP5 said that they observed the Honda Accord and saw the appellants behaving suspiciously but that material fact was not mentioned in SP5’s police report (exh D26).

[12] In his written submission, learned counsel also argued that apart from the fact that the 2nd appellant was a passenger in the Honda Accord at the time of arrest there is nothing to connect the 2nd appellant with the drugs recovered in the car. The fact that the 2nd appellant resisted arrest by refusing to open the door is neutral evidence as SP5 also agreed that anyone in the same position would be in a state of shock. As such, the conviction and sentence against the 2nd appellant is unsafe.

DECISION

[13] We will first deal with the 2nd appellant’s appeal. It is trite that knowledge, which is necessary to establish possession could only be proved by inference from the surrounding circumstances. The drugs in question were hidden from plain sight under the driver’s seat. There was no evidence to show that the 2nd appellant had exclusive use of the car or was he the owner or driver of the car. There was also no evidence to show that the 2nd appellant had custody and control of the Honda Accord prior to his arrest or that he had the opportunity or ability to access or place the drugs under the driver’s seat and the power of disposal of the drugs in question. As such, there was no evidence to prove that the 2nd appellant had custody, control and possession of the drugs recovered in the Honda Accord. We also do not find any evidence or circumstance from which it might be inferred that the 2nd appellant must have been acting in concert the 1st appellant or vice versa in pursuance of a concerted plan to traffic the drugs. Common intention was not proved as there was no evidence to draw any inference of a pre-arranged plan. The mere fact that the 2nd appellant was found as a passenger in the Honda Accord was insufficient to draw an inference of a common intention to traffic the drugs that were found under the driver’s seat. Accordingly, the prosecution had failed to make out a prima facie case of possession and the 2nd appellant should not have been ordered to enter on his defence on the charge of trafficking.

[14] The 1st appellant was the registered owner of the Honda Accord and was at the material time driving the car. The fact that he was going over to Lim’s house to take back his Kia Citra motorcar and to hand over a tenancy agreement to Lim did not detract from the inference that he had the knowledge, custody, control and possession of the drugs under his car seat. On these facts, we are not persuaded that the prosecution has failed to establish a prima facie case against the 1st appellant for trafficking in the drugs. Insofar as the defence of the 1st appellant is concerned, we agree with the findings of the learned JC that it is an afterthought. The 1st appellant’s assertion that the drugs were attributed to Ang Chin Hooi is also far-fetched and unbelievable. We have scrutinised the totality of the evidence and find that there is no merit in the grounds advanced by learned counsel for the defence.

[15] In conclusion, the 2nd appellant’s appeal is allowed. The 2nd appellant is discharged and acquitted; the conviction and sentence against the 2nd appellant is set aside. The 1st appellant’s appeal is dismissed. The conviction and sentence of the High Court against the 1st appellant is affirmed.

sgd

Vernon Ong
Judge
Court of Appeal
Malaysia

Dated: 7th June 2018

COUNSEL

For the Appellant: Hussaini bin Abdul Rashid (S. Rethinakumar with him), Messrs. Hussain & Co

For the Respondent: Jasmee Hameeza binti Jaafar, Timbalan Pendakwa Raya, Jabatan Peguam Negara

Legislation referred to:

Dangerous Drugs Act 1952, Sections 2, 39B(2)

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