THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 6 ENGLISH

Muniandy A/L S Subramaniam v Public Prosecutor
Suit Number: Criminal Appeal No. A-05(M)-212-08/2015 

Criminal Law – Possession of drugs – What constitutes possession – Whether the appellant had the sole custody and control of the drugs

Criminal Law – Presumption of trafficking in drugs – Section 37(da) of the Dangerous Drugs Act

Criminal Law – Whether the trial judge was wrong in finding that the prosecution had proven a prima facie case that the appellant had the sole custody and control of the drugs – Whether the defence had raised a reasonable doubt against the prosecution’s case

 JUDGMENT

[1] The appellant was convicted and sentenced accordingly by the Ipoh High Court on 10.7.2015 in respect of the following charges:

Pertuduhan Pertama:

Bahawa kamu, pada 22 October 2011 jam lebih kurang 4.45 petang, di dalam rumah No Blok C-1-3 (Kondo), Jalan Impiana 2, Taman Meru Impiana, di dalam Daerah Kinta, di dalam Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 336.5 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah s.39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s.39B(2) Akta yang sama.

Pertuduhan Kedua:

Bahawa kamu, pada 22 October 2011 jam lebih kurang 4.45 petang, di dalam rumah No Blok C-1-3 (Condo), Jalan Impiana 2, Taman Meru Impiana, di dalam Daerah Kinta, di dalam Negeri Perak Darul Ridzuan, telah memiliki dadah berbahaya iaitu Ketamine seberat 3.92 gram, dan dengan itu kamu telah melakukan satu kesalahan di bawah s.12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s.39A(1) Akta yang sama".

Pertuduhan Ketiga:

Bahawa kamu, pada 22.20.2011, jam lebih kurang 4.45 petang, di dalam rumah No Blok C-1-3 (Condo), Jalan Impiana 2, Taman Meru Impiana, di dalam Daerah Kinta, di dalam Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya iaitu Heroin seberat 504.17 gram, dan dengan itu kamu telah melakukan satu kesalahan di bawah s.39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s.39B(2) Akta yang sama.

Pertuduhan Keempat:

Bahawa kamu, pada 22 October 2011 jam lebih kurang 4.45 petang, di dalam rumah No Blok C-1-3 (Condo), Jalan Impiana 2, Taman Meru Impiana, di dalam Daerah Kinta, di dalam Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya iaitu Monoacetylmorphines seberat 212.03 gram, dan dengan itu kamu telah melakukan satu kesalahan di bawah s.39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s.39(B)(2) Akta yang sama.

[2] The trial was heard before two different High Court judges. The first learned trial judge heard the prosecution’s case and decided that a prima facie case had been proven against the appellant upon all the charges. Thereafter the learned trial judge went into retirement.

[3] The second learned trial judge proceeded to hear the defence case. There was no application to hear the case de novo or to re-call any of the prosecution’s witnesses by either party.

[4] At the end of the defence’s case, the second learned trial judge found the appellant guilty and convicted him of all the charges against which the defence was called by the first trial judge. Hence, the appeal before us.

[5] For the purpose of this appeal, we only had the benefit of reading the grounds of judgment written at the end of the defence case by the second learned trial judge. For ease of reference, we shall hereinafter refer to the second learned trial judge as ‘the learned Judicial Commissioner’.

The Prosecution’s Case

[6] On 22.10.2011 at about 4.30 pm, SP5 (Insp. Ikwan Hilmi bin Ismail, from Bahagian Gerakan Operasi, JSJN, Bukit Aman) led a police team fully clad in black bullet-proof uniforms emblazoned with a fist-sized word "POLICE" and bullet-proof helmets, conducted a raid on a condominium unit at Taman Meru Impiana, Kinta, Perak (“the Condo”). They gained entry into the Condo by breaking open its front door using a gadget called the "Door-ram". SP5 shouted "Police!" and led his team into the Condo.

[7] Inside the Condo were 3 men sitting on a sofa. They were SP6, SP7 and the appellant. The three of them stood up and were told to sit down. SP6 and SP7 immediately fell on their knees. The appellant, however, ran towards the balcony and jumped out of the Condo located on the first floor and landed on the ground floor. SP5 saw the appellant writhing in pain upon landing and trying to flee but was apprehended by SP8 who was tasked to secure the rear part of the Condo on the ground floor. The appellant was brought back to the Condo.

[8] SP5 conducted a body search on SP6, SP7 and the appellant and found nothing incriminating. However, a search on the Condo led by SP-5 found the following items:

(i) On a chair in the living area, a box printed with the words "APEX DIGITAL ELECTRONIC SCALE" (P14A) containing 3 packets (P14 (1)-(3)) of substances suspected to be drugs;

(ii) At the bottom left part of the altar/ cabinet located in the prayer room, a box printed with the word "KIMBALL" (P19A) containing substances suspected to be drugs;

(iii) A box with the word "JATI" (P12A), found together with the "KIMBALL" box inside the altar/ cabinet, containing substances suspected to be drugs and a sealer (P26);

(iv) At the inner top part of the same altar/ cabinet, 8 packages wrapped in newspaper sheet containing plastic packages, each containing substances suspected to be drugs.

[9] SP5 also confiscated the following items:

(i) 2 set of keys and an access card written ‘MERU IMPIANA’ found by SP5 from the right pocket of the pants worn by the appellant; the first set consisted of 4 keys whilst the second set had 3 keys; from the first set of 4 keys, SP5 managed to open the doors to the Condo i.e. the padlock and the grille door;

(ii) 2 sets of keys taken from SP7; SP5 tested the keys but none of the keys could open the doors to the Condo; thus, the keys to the doors of the Condo were the ones found with the appellant;

(iii) a photo frame with the photograph of the appellant and a woman found on a table beside the bed in the master bedroom; and

(iv) some clothings from one of the room and some cash from the bag in the living area of the Condo.

[10] The substances suspected to be drugs were sent to the government chemist (SP3, Nor Hazili binti Adnan) who confirmed that the impugned substances were dangerous drugs as defined under the Dangerous Drugs Act, 1952 (hereinafter referred to as ‘the DDA’). The drugs were particularized in SP3’s report (exhibit P45) as follows:

(i) 336.5 grams of Methamphetamine;

(ii) 3.92 grams of Ketamine;

(iii) 504.17 grams of Heroin;

(iv) 212.03 grams of Monoacetylmorphines.

[11] SP4 (Krishnan a/l P. Krishnasamy), the owner of the Condo, testified that at the material time the Condo was rented by the appellant. The keys to the Condo were handed over to him by SP4. The monthly rental was paid by the appellant in cash to SP4 through SP7 (Eilayaraja a/l Krishnasamy). SP7 was SP4’s brother and a friend of the appellant.

[12] SP7 testified that the appellant had stayed in the Condo for 6 to 7 months prior to the raid. The Condo was vacant for about two years before it was rented out to the appellant. Prior to that, SP7 and his family were staying in the Condo. SP7 had returned all the keys to the Condo to SP4. SP7 denied that at the time of the incident he was staying at the Condo together with his female friend (SD2, Tharanee a/p Veerapatran).

[13] SP6 (Jeyakumar a/l Arujunan) and SP7 testified that on the day of the incident, they came over to the Condo to collect the rent and 'duit mercun' from the appellant. SP4 confirmed that he had asked SP7 to collect the rent. The Registration Book ("Buku Daftar Keluar Masuk") kept by the security services of the Condo (P61) showed that SP7 came to the Condo on the day of the incident as a visitor.

Findings by the learned Judicial Commissioner upon re-evaluation of the prosecution’s evidence

[14] The learned Judicial Commissioner, in the light of the fact that Her Ladyship had only presided over the case after the defence had been called by the first learned trial judge, made the following observation upon going through the prosecution’s evidence at the end of the defence case (at page 23-24, Rekod Rayuan, Jilid 1):

“[32] I pause here to state that at the prosecution stage, this case was heard by the former learned High Court Judge who later retired after ordering the accused to enter his defence.

[33] The case was then heard before me at the defence stage. I am well aware that at the prosecution stage, it was the former High Court Judge who had the audio visual advantage of assessing the credibility of the witnesses. The learned High Court Judge had called for the accused to enter his defence and His Lordship must have evaluated the evidence adduced at the prosecution's stage at a maximum evaluation and hence his ruling.

[34] Nonetheless, I am not hampered in exercising the said maximum evaluation again as recorded by His Lordship as the first judge in this case although I am left with only the cold-print of the prosecution's witnesses' evidence and not as to their demeanour. Guided by the decision of the Court of Appeal in the case of Ranjit Singh a/l Jit Singh v. Public Prosecutor [2012] 5 MLRA 29; [2012] 6 MLJ 316; [2012] 6 MLJ 316, I have taken the liberty to do the maximum evaluation again as I should. Furthermore, the learned defence counsel did not make any application to re-call or re-summon any of the prosecution's witnesses nor had he made any application for the case to be re-heard…”

[15] We found nothing wrong with the learned Judicial Commissioner's exercise of re-evaluating the prosecution’s case, on account that, firstly, it was done at the end of the defence case, and secondly, it was done based entirely on the evidence recorded before the first trial judge without having the benefit of witnessing the demeanour of the prosecution’s witnesses. There were ample authorities in support of the validity of such exercise being done.

[16] Having re-evaluated the prosecution’s evidence, the learned Judicial Commissioner found:

(i) the prosecution had proven a prima facie case of mens rea possession of the drugs against the appellant, based upon the following findings:

(a) that the appellant was the sole occupant of the Condo;

(b) that the appellant had the sole custody and control of the drugs and the requisite knowledge of the drugs which were in his custody and control (on the authorities of Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237, Wong Nam Loi v PP [1997] 3 MLJ 795 and PP v Badrulsham Bin Baharom [1988] 2 MLJ 585); and

(c) the appellant’s conduct of jumping off the Condo to the ground floor led to an irresistible inference that the appellant knew about the drugs found in the Condo. His conduct was corroborative of the fact that apart from having custody and control of the boxes containing the impugned drugs, the appellant also knew exactly what were inside the said boxes;

(ii) since the amount of the drugs found were more than 50 grammes of Methamphetamine (the First charge), more than 15 grammes of Heroin (the Third charge) and more than 15 grammes of Monoacetylmorphines (the Fourth charge), the presumption of trafficking in the said drugs under s.37(da) of the DDA was applicable against the appellant.

The Defence

[17] The appellant testified that the Condo belonged to SP7. He was only renting one of the rooms in the Condo and had been renting the same for about four months prior to the incident. SP7 and his friend SD2 were also staying in one of the rooms in the Condo and both had the keys to the Condo.

[18] On the day of the incident, the appellant returned to the Condo at about 1.30 p.m. SD2 came later and they sat together in the living area. SD2 came to the Condo to request for some money from SP7 who subsequently arrived with SP6. SP7 brought with him a white box which he placed on the chair. SP6 carried two brown boxes with him. SP7 and SP6 then went into the prayer room. They came out from the prayer room 15 minutes later without the boxes and sat in the living area. The appellant saw SD2 requesting money from SP7 and SP7 handed over some money to SD2. SD2 then called his brother Vicky to take her home.

[19] The appellant then heard a sound of someone trying to open the grille door. The appellant looked through the kitchen window and saw 4 men wearing face masks standing at in front of the grille door. The men then kicked the wooden door and entered the Condo. They were all clad in black attire with guns in their hands. The appellant thought they were robbers.

[20] The four men attacked the appellant and he fought back. There were RM28,000.00 cash in the Condo. The scuffle that ensued dragged him to the balcony and he fell off the balcony to the lower floor. As a result, he suffered some injuries. He felt dizzy and his vision became blurred. He was also hit by the men. He was brought back to the Condo and could not remember what happened in the Condo.

[21] The appellant denied having knowledge of the content of the boxes brought to the Condo by SP7 and SP6 on the day of the incident.

[22] SD2’s evidence was consistent with the appellant’s. During the trial, SD2 produced the key to the Condo said to have been held by her all along.

Findings At The End Of The Defence Case

[23] The learned Judicial Commissioner found that the appellant's defence was a complete denial of having anything to do with the said drugs and shifted the culpability to SP7 and SP6. It was also not his defence that the said drugs were meant for his own consumption.

[24] The learned Judicial Commissioner proceeded to reject the following evidence of the defence:

(i) that SP7 and SD2 were staying together with the appellant at the Condo during the incident;

(ii) that the boxes P14 (A), P19 (A) and P12 (A) were brought to the Condo by SP7 and SP6;

(iii) that the appellant thought that the men who entered the Condo were ‘robbers’ and there was a scuffle between him and the robbers that led to his fall.

[25] Consequently, the learned Judicial Commissioner found that the appellant had failed to raise a reasonable doubt upon the truth of the prosecution's case in respect of his possession and knowledge of the said drugs and had equally failed to rebut the presumption of trafficking in the said drugs on the balance of probabilities. In the event the appellant had failed to raise a reasonable doubt upon the prosecution’s case. On the other hand, the prosecution had succeeded in establishing their case beyond a reasonable doubt.

The Grounds Of The Appeal

[26] The grounds of the appeal may be stated to hinge on the basis of the following contention:

(i) that the learned trial judge was wrong to find that the prosecution had proven a prima facie case that the appellant had the sole custody and control of the drugs; and

(ii) that the defence had raised a reasonable doubt against the prosecution’s case.

Ground (i) - whether a prima facie case had been proven against the appellant

[27] Learned counsel argued that the prosecution had failed to prove on a prima facie case basis that the appellant had the sole custody and control of the drugs upon the following grounds:

i. the possibility of access to the Condo by SP4 as the owner of the Condo;

ii. the access by SP7 and SD2 who were co-tenants and co-occupants of the Condo;

iii. the presence of SP6 and SP7 in the Condo together with the appellant during the raid;

iv. the discrepancies in the evidence of SP4 and SP7 that SP6 and SP7 went to the Condo to collect the rent and ‘wang mercun’ from the appellant wherein; firstly, SP4 said the monthly rental was RM520.00 and then said it was RM600.00 while SP7 said it was RM500.00. Secondly, the evidence of SP4 showed that the rent would normally be collected from the appellant by SP7 in the first week of the month but the incident happened on 22.10.2011, and finally there was no evidence to show that the rental money and ‘wang mercun’ were recovered from either SP7 or SP6;

v. the evidence of SP5 that SP6 and SP7 too were ‘shocked and flustered’ and ‘tried to run’ when the police entered the Condo;

vi. the fact that SP6 and SP7 were initially charged together with the appellant upon the same charges and subsequently discharged and detained under the Dangerous Drugs (Special Preventive Measures) Act 1985; and

vii. the lack of finger-print or DNA evidence against the appellant.

[28] We would consider the credibility of SP6 and SP7 first. Apparently, the first learned trial judge in calling for the defence on account of all the charges must have found SP6 and SP7 to be credible witnesses.

[29] The learned Judicial Commissioner upon re-evaluating the evidence of the prosecution’s witnesses had concluded that (at page 25, Rekod Rayuan, Jilid 1):

"[36] On a maximum evaluation of the evidence adduced by the prosecution, this Court found that there was nothing incredible in the evidence so adduced.”

[30] Now, as to the discrepancies in the evidence of SP6 and SP7 relating to the reason for their presence at the Condo during the raid as highlighted to us by the learned counsel, upon the totality of the prosecution’s evidence, we found the discrepancies to be minor and an insignificant factor in determining their credibilities as witnesses of truth. Thus, we found no reason to fault the decision of both learned trial judges to accept that part of their evidence to find them as credible witnesses upon the totality of their evidence weighted against the totality of the prosecution’s case.

[31] Apparently, the learned Judicial Commissioner’s findings that the appellant had the sole custody and control of the drugs were based on Her Ladyship’s findings that:

(i) the appellant was the sole occupant of the Condo;

(ii) SP6 and SP7 were guests on the day of the incident;

(iii) that the boxes containing the said drugs i.e. P14(A), P19(A) and P12(A) were already there when SP6 and SP7 came over;

(iv) only the personal belongings of the appellant were found in the Condo;

(v) there was no evidence to show that other persons had access to the Condo.

[32] The learned Judicial Commissioner had deliberated on the issue of custody and control of the drugs, especially in light of the presence of SP6 and SP7 at the time of the arrest, in the following terms (at page 26-28, Rekod Rayuan, Jilid 1):

"[38] The evidence of SP5 and SP8 were corroborated by SP6 and SP7 who were present and arrested together with the accused in the said Condo. The combination of their evidence in entirety had proven that the accused was the sole occupant of the Condo. The accused rented and stayed in the Condo months prior to his arrest. The keys to the Condo were found to be in his possession.

[39] SP6 and SP7 were guests on the day of incident who came over to collect the rent and 'duit mercun' from the accused at the Condo. SP7 was found to have written on the Registration Book ("Buku Daftar Keluar Masuk") kept by the Security of the Condo (P61) the reason he came to the Condo on the day of incident as "visit". Obviously, SP7 could not be said to have lived in the said Condo or having access to it. SP7 had surrendered the keys to the Condo to SP4 when he moved out from the Condo.

[40] SP7 and SP6 further testified that they did not bring the boxes containing the drugs ie P14(A), P19(A) and P12(A) to the Condo on the day of the incident as the boxes were already there when they came over.

[41] The accused's personal belongings were found in the said Condo. No other personal belongings of some other persons were found in the said Condo. Not even the belonging of accused's wife. There was no evidence from the prosecution witnesses to show that there were other persons who had access to the Condo and the impugned drugs.

[42] Upon considering the evidence in entirety, it was clear that the accused was the only person who had the custody and control of the impugned drugs found in the Condo.”

[33] On the issue raised by the defence relating to ‘exclusive possession’ in regards to the possibility of access to the Condo by ‘Tamil’ and Tharani” or “Tharimi” (SD2), the learned trial judge had comprehensively dealt with the issue that it merits to be cited here in extenso (at pp. 34-36, Rekod Rayuan, Jilid 1):

“[52] In cross-examination, suggestions were also put to SP7 that two persons by the name of 'Tamil' and 'Tharimi' were staying with the accused at the Condo. SP7 disagreed. According to SP7 'Tamil' was staying in Puncak Jelapang and he would not know if 'Tamil' did come over to the Condo when the accused was staying there. 'Tharimi' was SP7's female friend. SP7 stated that 'Tharimi' used to come over to the Condo but she did not stay there. SP7 further said that 'Tharimi' would only come over to the Condo during his presence. SP7 stated that both 'Tamil' and 'Tharimi' never had the keys to the Condo.

[53] This court was of the considered view that even though the accused was not caught red handed with the drugs, there was no evidence to show there were other persons having free access to the Condo. This court is always reminded that there should not be any confusion as to the term 'exclusive possession'. In the case of PP v. Denish a/l Madhavan [2009] 2 MLJ 194; the Federal Court explained the term 'possession' in drugs trafficking case and stated:

"[16] Before proceeding to consider the reasons for the Court of Appeal's decision, we will say a few words about 'exclusive' possession. It is inappropriate to speak of possession of an article in criminal law as exclusive possession. One is either in possession or not in possession, although one could be in possession jointly with another or others. To say that the prosecution of a drug case fails because there has been no proof of exclusive possession is apt to convey the wrong impression that it is only in cases where possession is entirely with one person, - that is, 'exclusive' - that a conviction is possible. When the learned trial judge said 'The accused sought to negative the proof of exclusive possession...', we take it that he meant no more than that the respondent sought to show that he was not in possession of the drugs because he had no knowledge of their existence and that the drugs could have been placed in his bags by some other person or persons.

[17] The idea of exclusivity features in the meaning of 'possession' in criminal law as one of the elements necessary to constitute possession. As Taylor J said in Leow Nghee Lim v. Reg; [1956] MLJ 28:

... It is often said that 'possession must be exclusive'. This is ambiguous. Possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. Custody likewise may be sole or joint and it has the same element of excluding others. The main distinction between custody and possession is that a custodian has not the power of disposal. The statement that 'possession must be exclusive' is often due to confusion of the fact to be proved with the evidence by which it is to be proved. It is essential to keep this distinction clearly in mind, especially when applying presumptions

[18] Thomson J in Chan Pean Leon v. Public Prosecutor [1956] 1 MLJ 237, said that 'possession' for the purposes of criminal law involves possession itself-which some authorities term 'custody' or 'control' - and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th Ed), at p 304), in which the exclusive element mentioned by Taylor J appears:

A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.

[19] Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession." (Emphasis added)

[54] The defence in this case asserted and aimed to show the probability of access by others as a matter to negative exclusive possession: it was to assert that the drugs found in the boxes at the living area and in the altar/ cabinet in the prayer room could have been concealed or planted there by these other persons. They even suggested that SP6 and SP7 could have the custody and control of the impugned drugs. But bare assertions or mere suggestions could not be said to be evidence that raised reasonable doubts. There was no reason for this Court to disbelieve SP7 when he said that both 'Tamil' and 'Tharimi' did not stay at the Condo. There was no reason for this Court to reject the evidence of SP7 when he stated that 'Tharimi' did not have the key to the Condo and would only be there during his (SP7) presence. The fact remained that the suggestions put to the prosecution witnesses about other persons having access to the Condo remained as suggestions. They were not evidence.”

[34] Having considered the above passages, we failed to find any misappreciation of facts or misapplication of law by the learned Judicial Commissioner that warrants our intervention. We were satisfied that Her Ladyship, in arriving at the findings that the appellant had the sole custody and possession of the drugs, had rightly taken into consideration all the relevant facts and circumstances of the prosecution’s case.

[35] In the light of such overwhelming evidence against the appellant, we found that the mere fact that SP6 and SP7 too were said by SP5 to be ‘shocked and flustered’ and ‘tried to run’ when the police entered the Condo, and the fact that both of them had initially been charged together with the appellant, were insufficient to negate the findings that the appellant had the sole custody and control of the drugs therein.

[36] Similarly, given the fact and circumstances surrounding the recovery of the drugs, the evidence of finger-print or DNA would only be corroborative at best and the lack of either or both of them would be of no consequence to the findings that the appellant had the sole custody and control of the drugs.

[37] In the final analysis, we found ourselves in full agreement with Her Ladyship’s finding that based on the evidence so adduced, the appellant had the sole custody and control of the drugs found in the Condo which additionally, was solely occupied by him at the material time.

[38] Consequently, we would affirm Her Ladyship’s finding of actual or mens rea possession against the appellant based on the authorities of Chan Pean Leon v Public Prosecutor; Wong Nam Loi v PP; and PP v Badrulsham Bin Baharom.

Ground (ii) - whether the defence had raised a reasonable doubt against the prosecution’s case

[39] It was submitted before us that the learned Judicial Commissioner had failed to carry out a fair and just assessment of the defence case. It was further submitted that the appellant had given reasonable explanation on the circumstances that led to the discovery of the drugs so as to raise a reasonable doubt against the prosecution’s case.

[40] Apparently, the defence was twofold. Firstly, SP7 and SD2 were staying at the Condo with the appellant. Secondly, the boxes containing the drugs were brought to the Condo by SP7 and SP6 on the day of the incident.

[41] Having read the learned Judicial Commissioner’s lengthy analysis and reasoning on why Her Ladyship decided not to accept the defence version that SP7 and SD2 were staying at the Condo and that the boxes containing the drugs were brought to the Condo by SP7 and SP6, we found that the learned Judicial Commissioner had painstakingly scrutinized every detail of the defence version of events and meticulously explained the discrepancies found in them that led to Her Ladyship’s conclusion that they were concoctions of lies and made up stories. Her Ladyship concluded that both the appellant and SD2 were lying through their teeth in Court.

[42] Based on such comprehensive reasoning, it would require a complete detour of reasoning on our part to disagree with the learned Judicial Commissioner’s findings that the defence story were plain lies and made up stories.

[43] Even if we were to accept that SD2 had the key to the Condo, we referred hereto the case of Nagalingam a/l P Vellupillay v Public Prosecutor [2015] 3 MLJ 92 whereby the appellant in that case relied on the possibility of access by the appellant’s wife to the room in which the drugs were found. Abdul Wahab Patail JCA in delivering the judgment of the Court, said as follows:

"[22] The crux of the defence is that the appellant did not have sole custody and control of the room in which the drugs were found. It was submitted that the High Court erred when it failed to accept that because SD2, Thenmoly a/p Satiyel, the wife of the appellant, had access to the drugs, a reasonable doubt had been established.

[23] From the foregoing, the finding was a finding of fact on the evidence.

[24] Furthermore, the relevance of exclusive access and control of a premise or room pertains to proof that he had possession of things found in the room. Whether he has possession of the things in the room is always a finding to be made upon the particular facts and circumstances. That another has access to the room does not mean he cannot be held to be in possession of the drugs found in the room if such access is only, for example, in his presence. The idea of exclusivity was explained in Public Prosecutor v Denish a/l Madhavan [2009] 2 MLJ 194; [2009] 2 CLJ 209 (FC)…

[25] Thus, that fact of non-exclusive possession does not negate guilt. Even if the submission that the appellant did not have exclusive access and control because his wife also had access were accepted, it would only mean on the facts of this case that they both had joint possession. The High Court considered the defence that the appellant's wife, SD2 had access and held…

[26] There was no evidence of access at the material time to the room let alone the substances containing the dangerous drugs by SD2. Her access to the drugs is purely speculative.”

[44] Similarly in this case, we would say that the existence of any connection between SD2 and the drugs was purely speculative as there was nothing in evidence to suggest that SD2 had any inkling of knowledge about the existence of the drugs in the Condo. The mere fact that she had the key to the Condo would not change the fact that it was only the appellant who had the requisite knowledge about the drugs.

[45] Therefore, based on the evidence before us, we were satisfied that Her Ladyship’s findings that the appellant had failed to rebut the earlier findings that the appellant was the sole occupant of the Condo and under the circumstances of the case had the sole custody and control and knowledge of the drugs found in the Condo were based on sound and proper assessment of the facts and the law. We thus have no reason to interfere with the findings.

[46] With regards to the explanation by the appellant on the circumstances leading to his ‘fall’ from the Condo to the ground floor, we were satisfied that the learned Judicial Commissioner had sufficiently clarified why the explanation was unacceptable. We need not have to repeat here what those circumstances were. It would suffice for us to say here that under such circumstances, it would be totally illogical for anybody to mistake the police raiding team as ‘robbers’. Even SP6 and SP7 knew that as their evidence showed that they knew that the men who entered the Condo were policemen. Clearly, such an explanation by the appellant warranted outright rejection.

[47] Thus, given the detail explanation by the learned Judicial Commissioner, we were assured that the appellant’s complaint that Her Ladyship had failed to carry out a fair and just assessment of the defence case were bare assertions and entirely devoid of merit. In the final analysis, we were satisfied that the defence case had been properly and adequately considered by the learned Judicial Commissioner.

[48] Based on the evidence so adduced, we found that the defence had failed to raise a reasonable doubt against the prosecution’s case that he had mens rea possession of the drugs and, for the first, the third and the fourth charges, he had failed on the balance of probabilities to rebut the presumption of trafficking in the said drugs.

The Conclusion

[49] Having considered the evidence in its totality, we were assured and satisfied that both the learned trial judges had not committed any error in fact or in law that requires our intervention or correction. We were in agreement that the convictions by the learned Judicial Commissioner were safe and firmly supported by the totality of the evidence. We thereby dismissed the appellant’s appeal and affirmed the convictions and the sentences meted out by the learned Judicial Commissioner in respect of all the charges.

Dated: 4th January 2018

AHMADI HAJI ASNAWI
Judge
Court of Appeal, Malaysia

COUNSEL

For the Appellant: Rajit Singh, T/N: Rajit Gill & Co, Peguambela & Peguamcara

For the Respondent: Aslinda Ahad, Timbalan Pendakwa Raya, Jabatan Peguam Negara, 62100 Putrajaya

Legislation referred to:

Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), Sections 12(2), 37(da), 39A(1), 39B(1)(a), 39B(2)

Dangerous Drugs (Special Preventive Measures) Act 1985

Judgments referred to:

Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237

Wong Nam Loi v PP [1997] 3 MLJ 795

PP v Badrulsham Bin Baharom [1988] 2 MLJ 585

Nagalingam a/l P Vellupillay v Public Prosecutor [2015] 3 MLJ 92

Notice: The Promoters of Malaysian Judgments acknowledge the permission granted by the relevant official/ original source for the reproduction of the above/ attached materials. You shall not reproduce the above/ attached materials in whole or in part without the prior written consent of the Promoters and/or the original/ official source. Neither the Promoters nor the official/ original source will be liable for any loss, injury, claim, liability, or damage caused directly, indirectly or incidentally to errors in or omissions from the above/ attached materials. The Promoters and the official/ original source also disclaim and exclude all liabilities in respect of anything done or omitted to be done in reliance upon the whole or any part of the above/attached materials. The access to, and the use of, Malaysian Judgments and contents herein are subject to the Terms of Use.