THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 158 ENGLISH

Keong Gim Chye v Public Prosecutor and Another Appeal
Suit Number: Criminal Appeal Nos. P-05(M)-371-10/2016 & P-05(M)-373-10/2016 

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal – Whether the conviction safe

Criminal law – Whether the trial court erred in law and in fact when it found the appellants guilty of the offence of trafficking by way of manufacturing – Whether there was any nexus between the appellants and the act of manufacturing – Whether there must be evidence of an ongoing act of manufacturing by the appellants before a case of manufacturing can be established against the appellants

Criminal law – Whether the failure of the prosecution to call the alleged real trafficker to negate the defence of the appellants has compromised its own case

JUDGMENT

Introduction

[1] The appellants were jointly charged and tried in the High Court at Penang with two offences of trafficking in dangerous drugs under the Dangerous Drugs Act, 1952 (‘the Act’) read with section 34 of the Penal Code. The charges read as follows:

First Charge:

“Bahawa kamu bersama-sama pada 12.5.2011 jam lebih kurang 7.45 malam di alamat no. 3, Lgk Lumba Kuda, 11400 Ayer Hitam, di dalam daerah Timur Laut, di dalam negeri Pulau Pinang telah didapati mengedar dadah berbahaya iaitu Methamphetamine sejumlah 6,312.85 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan.”

Second Charge:

“Bahawa kamu bersama-sama pada 12.5.2011 jam lebih kurang 7.45 malam di alamat no. 3, Lgk Lumba Kuda, 11400 Ayer Hitam, di dalam daerah Timur Laut, di dalam negeri Pulau Pinang telah didapati mengedar dadah berbahaya iaitu Heroin dan Monoacetylmorphines sejumlah 74.6 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan.”

[2] At the end of the prosecution’s case the learned High Court Judicial Commissioner (‘the learned JC’) found that the prosecution had proven a prima facie case against both the appellants in respect of both the charges. The appellants were ordered to enter upon their defence on both the charges.

[3] At the conclusion of the trial, the learned JC found both the appellants guilty and convicted them on both the charges. They were then sentenced to the mandatory death penalty prescribed under the Act.

[4] Aggrieved with the convictions and sentences, the appellants appealed to this court. We heard their appeals on 2.3.2018, wherein at its conclusion we unanimously dismissed their appeals. We affirmed both the convictions and sentences imposed by the learned JC. We now give our reasons for the decision.

The Prosecution’s case in brief

[5] The factual matrix of the prosecution’s case were well encapsulated in the learned JC’s grounds and may be summarized as follows. On 12.5.2011 at around 7.45 p.m. based on information received, Inspector Gan Chee Liang (SP6) and a police raiding party arrived at the house at No. 3, Lgk Lumba Kuda, 11400 Ayer Hitam (“the said house”). The said house was a double-storey corner terrace house with an automatic fence gate which was closed at the time. In the porch, there were two (2) cars parked. SP6 forced open the automatic gate in order to gain access to the porch area. SP6 then proceeded to the direction of the door of the said house and found that the front door was a wooden door with part glass. The door was shut. There was also a grill which was padlocked.

[6] SP6 then instructed members of the raiding team to cut open the padlock to the grill and to break open the wooden door in order to gain access inside the house. As soon as the police entered the house, SP6 shouted loudly, “Police” several times. At that time, SP6 saw the first appellant run down the staircase and head in the direction of the kitchen area. According to SP6, at that time the first appellant appeared to be in an agitated ‘gelisah’ state and was promptly arrested by SP6. At the same time, the other members of the raiding team headed by Detective Sargeant Major Mohd Dalila bin Mansor (SP11) proceeded to the upper floor of the said house.

[7] The first appellant was handcuffed and guarded by Corporal Nasir. SP6 headed upstairs and was informed by SP6 that the second appellant was arrested while trying to flee through the balcony of the upstairs master bedroom. SP6 and SP11 then brought the second appellant downstairs. SP6 conducted physical examination on both the appellants. SP6 recovered one remote control and four (4) keys (ex. P401 A-D) from a dark blue pouch bag worn by the first appellant. From the second appellant, SP6 recovered one remote control and two (2) keys (ex. P402 A-B).

[8] Both the appellants were then brought by SP6 upstairs to conduct an examination. In the presence of both the appellants, SP6 discovered dangerous drugs and various apparatus used for manufacturing drugs in all the three (3) rooms upstairs. These include slow cookers, hot plates, glass and plastic bottles and weighing scale. Chemist, Teoh Choon Ping (SP2) was called and visited the said house on 13.5.2011. SP2 carried out an examination of the said house and confirmed that the said house was used to process the dangerous drugs, Methamphetamine and to “cut” the drugs which is a process used to dilute the thickness of Heroin.

[9] SP2 further confirmed that all the apparatus found in the said house were used to process drugs. SP2 testified that the liquid substances found were iodine, chloroform, ethanol, acetone, caffeine, diethyl ether, chloroquine and methanol. SP2 testified further that all the liquid were substances that could be used to manufacture Methamphetamine from Heroin base.

[10] All the exhibits recovered from the said house suspected to be dangerous drugs were sent to SP2 for analysis. SP2 testified that base on his analysis, the substances recovered from the said house contained 6,312.85 grammes of Methamphetamine and 74.6 grammes of Heroin and Monoacetylmorphines. SP2 confirmed that Methamphetamine, Heroin and Monoacetylmorphines were listed in the First Schedule of the Act.

Findings at the end of the prosecution’s case

[11] After considering all the evidence adduced by the prosecution witnesses, the learned JC found that the prosecution had proven a prima facie case against both the appellants on both the charges. Learned JC was satisfied that the prosecution through the evidence of SP2 had proven that the drugs are dangerous drugs within the meaning and definition of the Act. The learned JC accepted the evidence of SP2 and the chemist report (ex. P15) prepared by the witness that the substances recovered from the said house contained 6,312.85 grammes of Methamphetamine and 74.6 grammes of Heroin and Monoacetylmorphines respectively. SP2 also confirmed that Methamphetamine, Heroin and Monoacetylmorphines were listed in the First Schedule of the Act.

[12] As for the elements of possession and trafficking, the learned JC accepted and relied on the evidence of SP2 that the said house were used to manufacture Methamphetamine and to conduct a ‘Heroin cutting process’ in order to reduce the purity of its content. The discovery of various items, the apparatus and various liquid in the said house prompted the SP2 holding that the said house was used for the manufacturing of dangerous drugs. Thus, the learned JC held that the element of trafficking had been proven by virtue of the definition of ‘trafficking and manufacture’ under section 2 of the Act as follows:

“trafficking”

includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act.

“manufacture”

in relation to a dangerous drug, includes-

(a) the making, producing, compounding and assembling of the drug;

(b) the making, producing, compounding and assembling a preparation of the drug;

(c) the refining or transformation of the drug into another dangerous drug; and

(d) any process done in the course of the foregoing activities.

[13] The learned JC relied on PP v Chia Leong Foo [2000] 6 MLJ 705; Azhar Lazim v PP [2012] 1 LNS 262 and Lee Boon Siah & Ors v PP [2014] 3 CLJ 584 where it was held that in the case of drugs manufacturing under section 2 of the Act, it is not necessary for the prosecution to prove possession. In any event, learned JC hold that possession could be inferred from the circumstances of the instant case such as an attempted act of fleeing on the part of both the appellants which is admissible under section 8 of the Evidence Act 1950, the DNA of the appellants found on items recovered in the said house and that at the time of raid, only the appellants were found in the said house. This is further supported from the evidence of recovery of the house remote controls and a bunch of keys from the physical possession of the appellants.

[14] The learned JC hold that the prosecution had succeeded in proving the element of the common intention between the appellants to engage in the process of manufacturing the impugned drugs which formed the subject matter of the charges. The learned JC relied on Mohd Shamsul bin Abdul Aziz @ Abdul Azis v PP and another appeal [2016] 3 MLJ 215 and Sahri Tahe v PP and other appeals [2016] 4 MLJ 69.

[15] After being satisfied that all the elements of the two charges had been established, the learned JC held that the prosecution had proven a prima facie case against the appellants on both the charges. Thus, the appellants were called upon to enter their defence on the two charges.

The Defence

[16] The first appellant elected to give evidence under oath. The first appellant is the sole witness for his defence. The defence of the first appellant had been summarised by the learned JC as follows:

“[71] The defence of the first accused was that he was a methamphetamine addict and his presence at the said house that day was to obtain his supply of drugs for his own consumption. He described the method he employed in consuming the drugs. He gave the price of purchasing the drug. His defence was that one Tan Beng Tatt had requested his help in renting the said house. He however denied occupying the house.

[72] The first accused testified that the possible reason Tan Beng Tatt requested him to do this favour was that the said Tan Beng Tatt had wanted to conceal his true intention from his wife which was that he wanted to rent the house for Bao Bao who was his mistress, to reside.

[73] The first accused said that he agreed to acquiesce to this request as he was a childhood friend of the said Tan Beng Tatt and was dependent upon him for sub-contract work plumbing and to satisfy his addiction for the drugs which Tan Beng Tatt supplied. To that end, the first accused met up with the broker, SP4, and the solicitor, SP8, and being pressured by Tan Beng Tatt and Bao Bao, signed the tenancy agreement. The first accused said that the reason he used the National Identity Registration Card (NRIC) of one Tan Kok Shin to rent the house was that the latter was from Perak and not from Penang.

[74] The first accused testified that on the day of the arrest on 12.5.2011 at around 7 p.m. he went to the house to purchase some drugs. He said that Bao Bao invited him inside the house. Bao Bao then told him that the drug were not yet ready and said she wanted to go out for a while. She then handed over the keys and the remote to the auto gate to him and told him to lock the door to the house.

[75] The first accused said that at the time he experienced some stomach pains and needed to pass motion in the toilet downstairs but he found it to be in a dirty condition. The first accused said that he went upstairs to use the toilet there and he came across the second accused who was in the living room upstairs. The first accused testified that he went downstairs and saw some people outside the door but before he could take the keys from the kitchen to open the main door, he was arrested by the police.

[76] The first accused also denied that he had worn around his waist a dark blue pouch at the time he was arrested. He also said that contrary to the prosecution evidence, he did not run but was making his way to the kitchen to retrieve the house keys when he was arrested. He also said that he was arrested by Malay policemen and that no Chinese policeman arrested him. He said the Chinese policemen together with Malay policeman proceeded upstairs. He denied that he was processing drugs at the house that day.”.

[17] The second appellant likewise elected to give evidence under oath and he is the sole witness for his defence. His evidence had been summarised by the learned JC as follows:

“[77] The second accused said that he went to the said house on the day of the incident at around 5 p.m. also for the purpose of purchasing some drugs which he needed for personal consumption as he was a drug addict. He also described the method employed in consuming the drugs. He said that he obtained his supply of drugs from a female by the name of Bao Bao. He said he met Bao Bao at a Karaoke lounge. Bao Bao introduced him to Tan Beng Tatt. He also described how much the drugs cost. When he arrived at the house, the said Bao Bao invited him inside the house and invited him upstairs. The second accused said that he did not follow Bao Bao upstairs but just stood in the middle of the stairs.

[78] Not long after, Bao Bao came downstairs and informed the second accused that the "thing” was not yet ready. He said that he did not know what the "thing” meant. Bao Bao then told him that she wanted to go out for a while. At the same time the first accused arrived at the house. Bao Bao introduced the first accused to him.

[79] After Bao Bao left the house, the first accused went upstairs to use the toilet. The second accused said that after the first accused came downstairs, he proceeded upstairs in order to use the toilet to pass motion and after he came out of the toilet, he was arrested by the police. The second accused said that during the whole time he was at the house up until the time the first accused arrived, he merely stood in the middle of the stairs. He denied trying to escape arrest by climbing over the balcony.

[80] Both accused said that this was not the first time they purchased drugs at the said house. They however testified that on previous occasions, they had only purchased the drugs from across the fence or at the car porch. Both accused also agreed that previously, they would place an order beforehand for the purchase of the drugs. Both accused also testified that they arrived at the house that day by getting a lift from others. Both said that they did not know the other prior to that day.

[81] The thrust of the defence of both accused was that the true traffickers were the said Tan Beng Tatt and Bao Bao who was a guest relations officer at a KTV and the formers mistress. They said that Tan Beng Tatt was also arrested that day.”.

[18] After a careful analysis of the evidence given by the appellants, the learned JC concluded that the appellants had not succeeded in raising a reasonable doubt on the prosecution’s case. The learned JC made the following findings:

(a) The involvement of Bao Bao was never raised during the cause of the prosecution case nor was her existence or her personal particulars given to the police during investigation to enable them to conduct any meaningful investigation. This omission on the part of the defence can justifiably entitled this aspect of the defence case to be characterised as an afterthought;

(b) It is not reasonable of the appellants version that they were drugs addicts were true, for the Bao Bao to leave them in the said house unattended and unsupervised with such a large quantity of drugs in the said house;

(c) The appellants claimed that they were not the true traffickers but the said Bao Bao or Tan Beng Tatt were in fact the true traffickers. But the presence of both the appellants and their conducts in attempting to flee does not support their version that they were there only to purchase drugs;

(d) It is not reasonable for the appellants to merely be there to purchase drugs to be found upstairs where the drugs happened to be;

(e) The real estate agent, Ng Eu Huat (SP4) and the lawyer, Tye Suit Yean (SP8) who prepared the tenancy agreement confirmed that it was the first appellant who produced a copy of National Identity Registration Card (P23) of an individual named Tan Kok Shin for the tenancy agreement. SP4 and SP8 said that the first appellant introduced himself as Mr. Tan Kok Shin;

(f) A National Registration Department search done by the investigating officer, ASP Salim bin Ewin (SP12) in respect of the P23 reveal that it belong to the individual by the name of Tan Kok Shin. However, the photograph of the said Tan Kok Shin was different from that displayed in P23. The inference that can be justifiably be drawn from this is that the first appellant had wanted to conceal the fact that he was the true tenant of the said house and to evade that he intended to use the said house for manufacturing drugs activities in the said house;

(g) No one else were found at the said house at the time of the raid. All the facts and circumstances of the case showed that it was the two appellants who had access, control and occupancy of the said house. Although Tan Beng Tatt is not a fictitious character having been arrested on the same day and subsequently charged for a drug offence, it was in relation to some other place and not the said house;

(h) On the evidence, the learned JC found that Bao Bao was a figment of imagination of the appellants concocted in order to bolster their defence and to afford a reason to account for their presence at the said house at the time of the raid.

[19] The learned JC rejected the appellants defence as their defence does not raise any reasonable doubt in the prosecution case. In rejecting the defence’s version, the learned JC had considered PP v Saimin [1971] 2 MLJ 16; Mat v PP [1963] 29 MLJ 263; PP v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393; Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209; Mohamad Radhi Yaakob v PP [1991] 3 CLJ 2073; Yee Wen Chin v PP [2008] 6 CLJ 773 and Ooi Chun Huat v PP [2015] 1 LNS 896.

[20] Both the appellants were thus convicted and sentenced to suffer the mandatory death penalty under section 39B(2) of the Act on both of the charges. Hence, their appeals before us.

The Appeals

[21] Before us, learned counsel for both the appellants raised the following two main grounds of appeal, namely:

(a) That the learned JC erred in law and in fact when his Lordship found that the appellants guilty of the offence of trafficking by way of ‘manufacturing’; and

(b) That the failure of the prosecution to call Tan Beng Tatt to negate the defence of the appellants has compromised its own case.

[22] As regard to the first ground, the learned counsel submitted that the learned JC erred when his Lordship ruled that the prosecution had successfully proven a case of manufacturing against the appellants contrary to the evidence adduced by the prosecution. It was argued that there is no evidence that the appellants were engaged in the act of manufacturing of Methamphetamines at the time of the police raid. There must be evidence that the appellants were in the act of manufacturing i.e. either ‘making’, ‘producing’, ‘refining’, or ‘doing any process done of the foregoing activities’, that is, to manufacture the impugned drugs in both the charges. The appellants were never caught doing one of the above acts. Learned counsel relied on the following cases to support his arguments:

(i) Lee Boon Siah & Ors v PP [2014] 3 CLJ 584;

(ii) PR v Saravana Kumar & Anor [2014] 1 LNS 722;

(iii) Ong Hooi Beng & Ors v PP [2015] 3 MLJ 812; and

(iv) Wong Hong v PP [2013] 1 LNS 489

[23] Learned counsel further argued that:

(a) There is no nexus between the appellants and the act of manufacturing. No traces of drugs were found on the persons of the appellants and no traces of fingerprints of both the appellants were found;

(b) The chemist (SP2) could not confirm whether there was processing of the drugs on the date of the raid; and

(c) The DNA evidence relied by the prosecution is not admissible as there was a break in the chain of evidence. The DNA of others were also found in the said house.

[24] On the second ground of appeal, learned counsel posited that the failure on the part of the prosecution to call Tan Beng Tatt had compromised its case. It’s the case of the appellants that Tan Beng Tatt is a real person and the real trafficker. Relying on Masoumeh Gholami Khaveh v PP [2013] 5 CLJ 59, learned counsel argued that it is incumbent for the prosecution to produce Tan Beng Tatt or at least tender his statement to negate the prosecution’s case. The learned counsel further argued that Tan Beng Tatt may not be important to the prosecution but indeed important to the defence.

Our Decision

[25] We had the opportunity of perusing the appeal records including the learned JC’s grounds of judgment. The learned JC relied on the chemist (SP2) evidence in his finding that there was manufacturing setting found in the said house. Question whether the said house was used for drugs manufacturing is a question of fact within the purview of the learned JC as a trier of fact. It is trite law that this Court should be very slow in interfering with findings of fact by the trial judge.

[26] We disagree with the learned counsel submission that there must be evidence of an ongoing act of manufacturing by the appellants before a case of manufacturing can be established against the appellants. What SP2 said was that he is not sure whether there was manufacturing process done on the specific date of 12.5.2011, the date when the said house was raided by the police team. We have examined the appeal records especially the evidence given by SP2, we are of the considered view that there were irrefragable evidence that the said house had been used to manufacture drugs as evinced by the presence of the huge numbers of paraphernalia, drugs precursors, apparatus, laboratory items and drugs found in the said house.

[27] We agree with the learned JC’s findings at pages 16-21 of the Appeal Record Volume 1 regarding the same issue which we reproduce below:

"[25] SP2, the chemist, testified that from his examination of the house and the implements and articles found in there, the house were being used to manufacture Methamphetamine and to conduct a “heroin cutting process” in order to reduce the purity of its content.

[26] SP2 said that he came to this conclusion as a result of inter alia, the following. In the room marked as M1 on his sketch plan, he found 1 blue container with white powder suspected to be drugs and various items like metal basins, a hot plate and slow cooker that had traces of powder suspected to be drugs.

[27] In the room marked N1 on the sketch plan were found various laboratory items such as a retort stand, plastic bottles, a bottle containing colourless liquid as well as plastic containers filled with red powder suspected to be red phosphorus.

[28] In room marked Q1, there were found laboratory items including a retort stand, glass beakers containing chocolate coloured liquid, weighing instrument, glass and plastic bottles. SP2 testified that the items discovered was capable of being used to mix and to cut or to thin drugs.

[29] From his analysis of the liquid discovered in the apparatus in the rooms, SP2 confirmed they contained amongst others, iodine, chloroform, ethanol, caffeine, diethyl ether, chloroquine and methanol. SP2 said that iodine and phosphorous were some of the ingredients used to produce Methamphetamine. SP2 also said that chloroform, ethanol and methanol were organic reagents needed to produce chemical reaction while caffeine, chloroquine were substances used to add into heroin in order to reduce its purity.

[30] The above evidence clearly showed that the house were used for the manufacturing of dangerous drugs.

[32] From the testimony of SP2, the implements and substances found there clearly indicated that what was being carried out at the house was manufacturing as defined under section 2 of the DDA. The net weight of the drugs would also enable the fair inference to be made that it was for purposes of trafficking.

[33] In Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705, it was held:

It must be observed that most of the acts that constitute ‘trafficking’ as defined in s 2 of the Act like, for example, keeping, concealing, storing, transporting and carrying dangerous drugs involve the prerequisite element of possession unlike, for instance, the sale and supply of dangerous drugs which need not necessarily involve possession as demonstrated by Pendakwa Raya v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 5560. It making, producing, compounding, assembling, refining or transformation of the offending drugs. For that reason, in our judgment, unlike for example the act of keeping, concealing, storing, transporting and carrying dangerous drugs which constitute ‘trafficking’ as defined in s. 2 of the DDA that involve the requirement of possession, the manufacturing of dangerous drugs as in the present case does not involve possession (see: PP v. Chia Leong Foo [2000] 4 CLJ 649; [2000] 6 MLJ 705 and Public Prosecutor v. Mansur Md Rashid & Anor [1997] 1 CLJ 233; [1996] 3 MLJ 560). In other words, possession of the impugned drugs need not be proven in a case involving ‘manufacturing’ before the trafficking definition in s. 2 of the DDA can be invoked. (Emphasis added)

[37] From a distillation of the above-mentioned authorities, unlike those cases which involve the act of keeping, concealing, storing, transporting and carrying dangerous drugs which constitute ‘trafficking’ as defined in s. 2 of the DDA that involve the requirement of proving possession, in the case of manufacturing under section 2, it is unnecessary for the prosecution to prove possession. In any event, possession could be inferred from the circumstances of the instant case.

[38] What is evident from the facts of the case, was that there was no one else besides both accused who were in the house at the time of the raid by the police. The prosecution evidence also indicated that at the time of the raid, the first accused was seen running downstairs and toward the direction of the back door while the second accused was arrested while trying to escape from the upstairs balcony.

[39] The forensic evidence which revealed DNA profiles consistent with both accused persons on a face mask, towel and jeans found at the house further established their presence at the house. The fact that there was no forensic evidence found on other items for example, fingernails clippings did not prejudice the prosecution case in the light of the other overwhelming evidence.

[40] There were various equipment and instruments for manufacturing drugs found in the rooms upstairs. Drugs of various types were also found there. The chemist, SP2, visited the house on 13.5.2011 at around 5.10 p.m. and carried out an examination of the house. He confirmed that the house was used to process Methamphetamine and to “cut” the drugs which is a process used to dilute the thickness of Heroin.

[41] The act of fleeing on the part of both the accused at the time of the raid amounted to evidence admissible under section 8 of the Evidence Act 1950 and following what was enunciated in Parlan Bin Dadeh v Public Prosecutor [2008] 6 MLJ 19, the inference can justifiably be made that from such conduct, both accused had the requisite knowledge of the existence of the drug manufacturing implements and knew the nature of the drugs found in the said house and were manufacturing drugs there.”.

[28] Once manufacturing setting is proven, it is no longer incumbent upon the prosecution to prove the element of possession as was decided in Chia Leong Foo, supra. In Lee Boon Siah & Ors, supra, this Court reiterate the position in Chia Leong Foo, supra, as follows:

"[31] It is true, as argued by learned counsel for the all the accused persons, that there was no eye witness who saw any of the accused persons in the act of making, producing, compounding, assembling or refining the impugned drugs. Still in our judgment, even without the evidence, there were a number of pieces of evidence as we have enumerated above that incriminated all the five accused persons in the commission of the offence. All of which leads us to conclude that all the five accused had knowledge and were involved in the manufacturing of methamphetamine because they were in a drug manufacturing setting in the factory premise. The clothes of all the accused persons, toothbrush as well as canned food and instant noodles were found in the middle room at the lower floor. A total of eight mattresses and pillows were also found. These show that they were in the said factory during the day and night. According to PW5, all the accused persons were in a state of fright and their clothing were in disarray, as if they had just completed carrying out some work. All the five accused persons were working in the said factory premise and that they were not there by accident. They were participants in the making and producing methamphetamine in the said factory. All this admissible circumstantial evidence when taken together, irresistibly and unmistakably lead to the conclusion that the five accused persons were actively involved in the manufacturing of methamphetamine in the said factory. As the Court of Appeal said in Idris v. Public Prosecutor [1960] 1 LNS 40; [1960] MLJ 296, circumstantial evidence should be such that when you look at all the surrounding circumstances, you find such a series of undersigned, unexpected coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion.

[32] For the proper determination of this issue, it must be borne in mind that, as stated in s. 2 of the DDA, the term ‘manufacture’ includes numerous and diverse processes of procedures namely making, producing, compounding, assembling, refining or transformation of the offending drugs. For that reason, in our judgment unlike for example the act of keeping, concealing, storing, transporting and carrying dangerous drugs which constitute ‘trafficking’ as defined in s. 2 of the DDA that involve the requirement of possession, the manufacturing of dangerous drugs as in the present case does not involve possession (see: PP v. Chia Leong Foo [2000] 4 CLJ 649; [2000] 6 MLJ 705 and Public Prosecutor v. Mansur Md Rashid & Anor [1997] 1 CLJ 233; [1996] 3 MLJ 560). In other words, possession of the impugned drugs need not be proven in a case involving ‘manufacturing’ before the trafficking definition in s. 2 of the DDA can be invoked.”.

[29] We found that the learned counsel’s complaint on the first ground of appeal bereft of any merit.

[30] We now move to the second ground of appeal canvassed before us by the learned counsel. This issue regarding Tan Beng Tatt had been considered at great length by the learned JC in his grounds at pages 43-51 of the Appeal Record Volume 1 which merited our reproduction in extensso as follows:

“[111] As alluded to earlier, it was obvious from the nature of the defence led by both accused that there were not the true traffickers but that the said Bao Bao and or the said Tan Beng Tatt were in fact the true traffickers.

[112] Where such a defence is led, there is authority for the proposition that there is necessity imposed upon a trial court to follow the “Radhi Direction”. The “Radhi Direction” is so named after the case bearing its name cited as Mohamad Radhi Yaakob v. PP [1991] 3 CLJ 2073. The “Radhi Direction” was explained by Gopal Sri Ram JCA (as he then was) in the case of Yee Wen Chin v. PP [2008] 6 CLJ 773 as follows:

[12] The section is relevant to the present case in the following way. In the course of cross-examining the prosecution witnesses it was extracted from PW5 that the information he had received was that Woo Kok Meng was trafficking in drugs at the place in question. The defence quite properly took advantage of this fact to demonstrate that Woo was the real trafficker and that the accused was entirely innocent. The accused was clearly entitled to do this in view of the decision in Mohamad Radhi v. Public Prosecutor [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311 SC. That case is authority for the proposition that a person charged with trafficking is entitled to an acquittal on that charge by showing that he was a mere possessor of the drugs whilst another was the true trafficker. Whenever such a defence is taken two separate exercises must be carried out by the trial judge. He must first determine as a fact whether that other is a real person or a mere figment of the accused’s imagination invented for the purpose of the trial. Next, if he finds that other person to be real the judge must then determine whether that other person is the real trafficker. This is called the Radhi direction and must be administered by a court unto itself when such a defence is taken. See, Sochima Okoye v. Public Prosecutor [1995] 3 CLJ 371 CA. (emphasis added)

[113] The accused of course are not contending that they were mere possessors but that they were there in order to purchase drugs for their own consumption. They are however contending that the said Bao Bao and or the said Tan Beng Tatt were in fact the true traffickers. The presence of both the accused upstairs at the time of the raid however, does not support their version that they were there to only purchase drugs. It will be recollected that the first accused was arrested while descending the staircase from upstairs while the second accused was arrested upstairs. The drugs and other substances and drug manufacturing equipment were all found upstairs.

[114] It is not reasonable for the accused persons who were merely there to purchase drugs to be found upstairs where the drugs happened to be. As stated earlier, the explanation of the accused that they were both upstairs in order to pass motion in the toilet upstairs was too much of a coincidence to be true or to cast a reasonable doubt in the prosecution case.

[115] The real estate agent, SP4 and the lawyer, SP8, who prepared the tenancy agreement (P24) confirmed that it was the first accused who produced a copy of a National Identity Registration Card (NRIC) of an individual named Tan Kok Shin (P23) for the purpose of preparing the tenancy agreement.

[116] Both SP4 and SP8 also testified that although the name on the NRIC was that of Tan Kok Shin, the photograph was that of the first accused. Both witnesses further said that the first accused introduced himself as Mr Tan. SP8 confirmed that on 10.2.2011 it was the first accused who attended at her office together with SP4 in order to sign the tenancy agreement. SP8 further confirmed that it was the first accused who was the tenant.

[117] A National Registration Department (JPN) search done by the investigating officer, SP12, in respect of the NRIC no. displayed on P23 revealed that it did belong to an individual by the name of Tan Kok Shin. However, the photograph of the said Tan Kok Shin was different from that displayed in P23.

[118] A consideration of the circumstances above clearly show that the copy of the NRIC used by the first accused for the purpose of renting the said house was a forged NRIC. During the course of the defence case, the first accused confirmed that the individual by the name of Tan Kok Shin was not involved in the rental of the house and neither was the first accused acquainted with or had previously met with the said Tan Kok Shin.

[119] The explanation given by the first accused that the NRIC of the said Tan Kok Shin was used to prepare the tenancy agreement because he was from Perak and not from Penang rings as a desperate and hollow attempt to justify the first accused’s version as to the necessity of using the forged NRIC.

[120] The version of the first accused that it was pursuant to the request of Tan Beng Tatt that he rented the house using a forged NRIC because the said Tan Beng Tatt wanted to conceal from his wife the fact that he wanted to house his mistress, the said Bao Bao there, cannot be believed nor does it raise a reasonable doubt in the prosecution case.

[121] Although the character of Tan Beng Tatt as being the one in possession of the drugs was raised during the course of the prosecution case, the version raised by the defence that it was at his request that the first accused had rented the said house had only surfaced for the first time during the defence case. This entitles the defence in respect of this issue to be justifiably characterised as an afterthought.

[122] If, as the first accused contended, the said Tan Beng Tatt had requested for his assistance for the purpose described, the first accused could have very well used his original and true NRIC in order to rent the house. This would have had the desired effect of concealing the true tenant of the said house and so fulfilled the intentions of the said Tan Beng Tatt. Why was there a further need for the first accused to use a forged NRIC in order to achieve this purpose?

[123] I find that the inference that can be justifiably be drawn from this course of action is that the first accused had wanted instead to conceal the fact that he was the true tenant of the said house and so evade detection that he intended to use the said house to further his and the second accused drug manufacturing activities there.

[124] A similar modus was employed in the case of Ooi Chun Huat v PP [2015] 1 LNS 896, (also a drug trafficking case), as evident from the following except:

[12] Having analysed the evidence as a whole, it is important to note that the Appellant had an exclusive control over the said house. It was evident from SP10’s testimony that the tenancy agreement was executed between his brother and the Appellant. Appellant had used someone else’s identity to execute the said tenancy agreement which had expired on 31.12.2011. The tenancy agreement was extended by the Appellant himself. However, the new agreement was yet to be executed at the time of his arrest. The Appellant’s conduct of using someone else’s identity for the tenancy agreement shows his intention to cover of his illegal activities. (Emphasis added)

[125] The first accused had during the course of the case for the prosecution, denied that he had rented the said house and in fact had challenged the evidence of both SP4 and SP8 which said that it was the first accused who had used the name of Tan Kok Shin to rent the house with the obvious aim of advancing the defence that it was the latter who was the tenant.

[126] The version given during the defence case that it was the first accused who in fact had rented the house using a forged NRIC of the said Tan Kok Shin in order to fulfil the request of Tan Beng Tatt results in a contradiction and is inconsistent with the stand previously taken. The said Tan Beng Tatt’s arrest that day was confirmed to be in relation to another case. The defence version therefore cannot be believed and neither does it raise a reasonable doubt in the prosecution case.

[127] What is not in dispute is that despite the defence raised by the accused persons, no one else was present at the said house on the day of the raid besides them. The defence of the second accused also that he was at the house for the sole purpose of purchasing drugs also cannot hold true or raise a reasonable doubt as by his own explanation he intended that day to purchase one set of a drug known as “Ice” which costs RM650. However, according to the search list (P407), among the personal items recovered from him was a sum of only RM80.00.

[128] According to the evidence of the second accused, when he entered the said house, he never went upstairs until he used the upstairs toilet. This was after the first accused said that he used the same toilet. According to the second accused, he just stood in the middle of the stairs having earlier rejected the invitation of the said Bao Bao to come upstairs.

[129] However according to the first accused, when he arrived at the said house, he only saw the said Bao Bao alone at the house and after she left the house, he went upstairs to use the toilet where he met the second accused at the living area upstairs. This version by the first accused would mean that the second accused, was already upstairs where the drugs and the said drug manufacturing equipment was kept.

[130] This in turn meant that the second accused would have the requisite knowledge of the existence of the drugs and the manufacturing equipment upstairs and further fortifies the prosecution evidence that the second accused was arrested upstairs and while attempting to escape arrest by climbing over the balcony. The evidence of the second accused therefore that he had only stood in the middle of the stairs without going upstairs until he used the toilet is not probable, cannot be believed and neither does it raise a reasonable doubt in the prosecution case. Both accused testified that prior to the incident that day they had never encountered or known SP6 and SP11. Both accused further agreed that there was no cause or motive for SP6 and SP11 to “frame up” both of them. Having no axe to grind therefore, the account of the raiding party in the mode and manner of arrest and of what transpired during the raid can reasonably be believed.

[131] The above analysis of the defence therefore raises the irresistible inference of the complicity of the first and second accused in the drug manufacturing activities carried out at the said house and their common intention in doing so pursuant to section 34 of the Penal Code. The evidence of the chemist, SP2 who conducted an examination of the said house had stated that the said house was used to manufacture Methamphetamine and a process known as "cutting” drugs which was a process employed to dilute the purity of Heroin.

[132] Both accused were not at the said house by sheer coincidence as contended but in pursuance of a carefully orchestrated plan to carry out the manufacturing of the drugs that formed the subject matter of the charges in those very house. This plan had been very carefully laid out by the first accused renting the said house using a forged NRIC in order to no doubt conceal the true nature of the activity being carried out there.

[133] As to the submission of learned counsel for the first accused that the manner of the cross examination conducted by the prosecution had amounted to an admission of the defence version, the overall tenor of the prosecution challenge was that both accused were manufacturing drugs at the said house and this part of the case was put to the defence. That being the case, I do not find that the prosecution can be said to have at any time acceded or agreed to the version of the defence case that they were at the house for the sole purpose of merely purchasing the drugs.

[134] Learned defence counsel submitted that based upon the prosecution’s opening statement, it was incumbent upon them to make out a case of manufacturing per se and the prosecution cannot now attempt to instead rely upon the general definition of the acts of trafficking as listed in section 2 of the DDA. The position in respect of an opening statement has already been considered at the prosecution stage. See Timhar Jimdani Ong & Anor v PP (supra). Manufacturing is in fact also one of the acts of trafficking described in section 2 DDA.

[135] The defence alluded in support to parts of SP2’s testimony which said he was unable to confirm whether there was drug processing carried out on 12.5.2011. As alluded to during the course of the case for the prosecution, SP2 had confirmed that he visited the house on 13.5.2011 at around 5.10 p.m. and carried out an examination of the house and he confirmed that the house was used to process Methamphetamine and to “cut” the drugs which is a process used to dilute the thickness of Heroin. SP2 had also gone into some amount of details as to the reasons he came to the conclusion he did. This had been dealt with during the analysis of the prosecution case earlier and it is therefore unnecessary to repeat what he said.

[136] Given this evidence from SP2, coupled with the rest of the evidence above including the discovery of drug manufacturing equipment and implements together with the discovery of the drugs at the house leads to the conclusion that the prosecution has successfully proven a case of manufacturing against both accused beyond reasonable doubt. There was thus no merit to the submission of learned counsel in this respect.

[137] All the facts and circumstances of the case showed that it was the two accused who had access, control and occupancy of the said house. Although Tan Beng Tatt was not a fictitious person having been arrested that day and subsequently charged for a drug offence, it was in relation to some other place and not the said house. I find on the facts therefore that it was both accused persons rather than Tan Beng Tatt who were the true traffickers at the said house.

[138] On the evidence, I find that the said Bao Bao was a figment of the imagination of the accused persons concocted in order to bolster their defence and to afford a reason to account for their presence at the house at the time of the raid. See Mohamad Radhi Yaakob v. PP (supra).

[139] The defence of both the first and second accused for the reasons given do not raise any reasonable doubt in the prosecution’s case. This court therefore convicts both accused in respect of both charges under section 39B(1)(a) DDA and sentences both accused to suffer death by hanging.”.

[31] Once again we found the learned counsel complaint on the second ground of appeal are bereft of any merit. We found learned JC had not committed any appealable error in his findings and conclusion which warranted an appellate intervention.

Conclusion

[32] For all the reasons above stated, we held that there were no merit in the appellant’s appeal. The convictions are safe and amply supported by cogent and overwhelming evidence. Therefore, we unanimously dismissed the appellants’ appeal. The convictions and sentences of the High Court are affirmed.

Dated: 15 May 2018

signed

KAMARDIN BIN HASHIM
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellants: Hisyam Teh Poh Teik, Messrs. Teh Poh Teik & Co, Suite 11.08, 11th Floor, Menara TJB, No. 9, Jalan Syed Mohd Mufti, 80000 Johor Bahru

For the Respondent: Dhiya Syazwani Izyan bte Mohd Akhir, Deputy Public Prosecutor, Attorney General’s Chambers, Putrajaya

Legislation referred to:

Dangerous Drugs Act 1952, First Schedule; Sections 2, 39B(2)

Evidence Act 1950, Section 8

Penal Code, Section 34

Judgments referred to:

Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209

Azhar Lazim v PP [2012] 1 LNS 262

Lee Boon Siah & Ors v PP [2014] 3 CLJ 584

Masoumeh Gholami Khaveh v PP [2013] 5 CLJ 59

Mat v PP [1963] 29 MLJ 263

Mohamad Radhi Yaakob v PP [1991] 3 CLJ 2073

Mohd Shamsul bin Abdul Aziz @ Abdul Azis v PP and Another Appeal [2016] 3 MLJ 215

Ong Hooi Beng & Ors v PP [2015] 3 MLJ 812

Ooi Chun Huat v PP [2015] 1 LNS 896

PP v Chia Leong Foo [2000] 6 MLJ 705

PP v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393

PP v Saimin [1971] 2 MLJ 16

PR v Saravana Kumar & Anor [2014] 1 LNS 722

Sahri Tahe v PP and Other Appeals [2016] 4 MLJ 69

Wong Hong v PP [2013] 1 LNS 489

Yee Wen Chin v PP [2008] 6 CLJ 773

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