Академический Документы
Профессиональный Документы
Культура Документы
BETWEEN
PUBLIC PROSECUTOR
AND
GUNASEELAN MARIAPPIN
(NRIC: 760906-07-5503)
GROUNDS OF DECISION
A) INTRODUCTION
1
[2016] 1 LNS 714 Legal Network Series
[3] The police team then arrested the two male Indians who were the
Accused and one Albert a/l Valendross (Albert). Physical searches
were carried out upon the two but nothing incriminating was found on
them. After a key was seized from the right hand of the Accused,
police gained entry into the storeroom. As the result of a search
carried out inside the storeroom, the police found a pail for storing
paint labelled Walltex. The pail contained a blue plastic with the
words Nokia Connecting People. Inside the blue plastic were found
one package wrapped with two pages from The Star newspaper
containing one compressed slab of dried plant material suspected to be
cannabis wrapped with transparent loytape.
2
[2016] 1 LNS 714 Legal Network Series
[6] SP5 handed over the exhibits to the investigating officer, SP8,
who also placed markings on the exhibits. SP8 also weighed the
cabinet the key to which was in the custody of SP8 at all times.
[7] It is the evidence for the prosecution that the Accuseds reaction
upon seeing the police and while the physical examination was
conducted was one of surprise terkejut and that he fell silent. Upon
[8] On the 2.4.2014 at around 12.30pm, SP8 took out the exhibits
Pinang where it was handed over to the chemist, SP4, who duly
3
[2016] 1 LNS 714 Legal Network Series
[11] During the raid carried out by the police on 31.3.2014, they also
discovered a pail for storing paint also inscribed with the words
Walltex and containing a blue coloured plastic in which were found
two slabs of compressed dried plant material suspected to be cannabis
and a pair of trousers marked island club. This exhibit was
discovered outside the storeroom and did not constitute the subject
matter of the charge in this case.
4
[2016] 1 LNS 714 Legal Network Series
(i) when the statement was made in the course of, or for
the purposes of, an investigation or inquiry into an
offence under or by virtue of any written law;
5
[2016] 1 LNS 714 Legal Network Series
6
[2016] 1 LNS 714 Legal Network Series
ii) She also placed several phone calls to the numbers 014-
9401527 and 017-5212838 which she said were the current
phone numbers used by Albert which she had ascertained
from his work supervisor. However, these calls went
unanswered.
7
[2016] 1 LNS 714 Legal Network Series
[17] It was on this basis that the prosecution argued for the
invocation of section 32(i) of the Evidence Act 1950.
[18] Learned counsel for the Accused on the other hand, argued that
from the very beginning, the police knew about the importance of
Albert as a witness in this case. In support he alluded to the testimony
of SP8 who agreed that Albert was an important witness and she had
notified the prosecution of this fact even before the Accused was
charged in court. In fact she went on to say that although she had
recommended when referring the investigation papers to the Attorney
Generals Chambers, that both Albert and the Accused be charged, she
received instructions to only proceed against the Accused.
[19] Learned counsel for the Accused went on to submit that in the
light of knowing the importance of Albert as a witness, the following
steps ought to have been taken to maintain contact with Albert with a
view to calling him as a witness at the trial.
8
[2016] 1 LNS 714 Legal Network Series
basis.
[20] The defence submitted further that without taking all of the
above steps but merely advertising in the newspapers, the prosecution
9
[2016] 1 LNS 714 Legal Network Series
cannot now take the easy way out and pray in aid section 32 (1) (i) as
a panacea to its lackadaisical attitude for which the Accused must now
be made to pay.
[21] It has been held that a person whose whereabouts are unknown
despite a proper search made is a person who cannot be found. See
Public Prosecutor v. Lim Bong Kat & Anor [1992] 4 CLJ 2173. The
application of the section is not automatic and sufficient evidence
must be adduced to show that despite all efforts made the person could
not be traced. See DA Duncan v. Public Prosecutor [1980] 2 MLJ 195.
The provision in section 32 (1) (i) was also considered in the case of
Public Prosecutor v. Lee Jun Ho & Ors [2009] 3 MLJ 400, where the
level of diligence expected on the part of the prosecution before the
section could be invoked was stated in no uncertain terms as follows:
10
[2016] 1 LNS 714 Legal Network Series
11
[2016] 1 LNS 714 Legal Network Series
12
[2016] 1 LNS 714 Legal Network Series
[22] The case makes it clear that the section is an exception to the
hearsay rule and that the onus to prove that a person cannot be found
lies squarely upon the shoulders of the prosecution.
[24] From a consideration of all the facts above and standing guided
by the principles espoused in the cases cited, I therefore find that the
prosecution has failed to satisfy this court that the provisions of
section 32(1)(i) of the Evidence Act 1950 have been satisfied. I
therefore dismiss the application by the prosecution to admit the
statement of the said Albert under section 32(1)(i) of the Evidence act
1950.
Impeachment Proceedings
[25] During the course of the prosecution case, the prosecution also
made an application to impeach the credibility of SP6, Madam
Samporanam a/p Saveridass.
13
[2016] 1 LNS 714 Legal Network Series
14
[2016] 1 LNS 714 Legal Network Series
15
[2016] 1 LNS 714 Legal Network Series
16
[2016] 1 LNS 714 Legal Network Series
17
[2016] 1 LNS 714 Legal Network Series
Saya selalu lupa dan saya silap beritahu IO. Saya lupa
sebab masa itu saya takut. Yang saya cakap betul di
Mahkamah.
18
[2016] 1 LNS 714 Legal Network Series
Saya tidak ingat apa yang saya beritahu IO. Saya tidak
setuju.
19
[2016] 1 LNS 714 Legal Network Series
203 respectively. They all adopt a common stand, and that is that the
evidence at the close of the case for the prosecution must be subjected
to maximum evaluation in order to determine whether a prima facie
case is made out that would justify a court in calling for the defence
of the accused. The phrase prima facie case itself has not been
statutorily defined in the above section. However, it has been the
subject of judicial pronouncement. In the case of Dato Seri Anwar
bin Ibrahim (supra), His Lordship Augustine Paul J (as he then was)
had this to say on the meaning of the phrase prima facie case:
20
[2016] 1 LNS 714 Legal Network Series
can rule that a prima facie case has been made out in
order to call for defence. Be that as it may, I am unable
to agree with the defence submission that this means that
the prosecution must prove its case beyond reasonable
doubt at that stage. A case is said to have been proven
beyond a reasonable doubt only upon a consideration
and assessment of all the evidence (see Canadian
Criminal Evidence (3rd Ed).thus, a prima facie case
as prescribed by the new section 180(1) of the Criminal
Procedure Code must mean a case which if unrebutted
would warrant a conviction. (emphasis added)
[33] In Looi Kow Chai v. Public Prosecutor [2003] 2 MLJ 65, Gopal
Sri Ram JCA (as he then was) speaking for the Court of Appeal had
this to say:
21
[2016] 1 LNS 714 Legal Network Series
22
[2016] 1 LNS 714 Legal Network Series
[35] In order for the prosecution to make out a prima facie case in
respect of the charges against the accused, it is incumbent on them to
prove the following ingredients. Firstly, that the drugs are dangerous
drugs within the meaning and definition of the Dangerous Drugs Act
1952 (DDA). Secondly, that the accused was in possession of the
impugned drugs. Thirdly, that the accused was trafficking in the drugs.
23
[2016] 1 LNS 714 Legal Network Series
[36] The results of the analysis conducted by SP4 and the Chemist
Report dated 17.7.2014 confirmed that the seized exhibit was
cannabis having a nett weight of 880 grams as defined in section 2 of
the DDA.
[38] Having heard the evidence of SP4, I do not find the evidence to
be in the category of cases that can be said to be inherently incredible.
I therefore accepted the evidence given as sufficiently proving the
nature and weight of the drugs seized. I also found that there was no
break in the chain of the drug exhibits from the time they were seized
right up to the time they were produced in court and duly identified.
24
[2016] 1 LNS 714 Legal Network Series
(a) the possessor must know the nature of the thing possessed;
[41] See Toh Ah Loh And Mak Thim v. Rex [1949] MLJ 54.
[42] In Leow Nghee Lim v. Reg [1956] 1 MLJ 28, Taylor J explained
possession as follows:
25
[2016] 1 LNS 714 Legal Network Series
26
[2016] 1 LNS 714 Legal Network Series
27
[2016] 1 LNS 714 Legal Network Series
[45] The evidence of the prosecution was that while the physical
examination was conducted on the Accused his reaction was one of
surprise terkejut and that he was silent. Upon the police discovering
the incriminating exhibits, the reaction of the Accused was said to be
one of fear and trembling terketar-ketar when answering the
questions posed by SP5. The reaction of an accused is of course
admissible and relevant under the provisions of sections 8 and 9 of the
Evidence Act 1950 (EA).
28
[2016] 1 LNS 714 Legal Network Series
29
[2016] 1 LNS 714 Legal Network Series
[49] Following from the above guidelines, the evidence that the
reaction of the Accused was one of surprise terkejut when he was
being physically examined was equivocal at best. So was the reaction
of the Accused which was said to be one of fear and trembling
terketar-ketar when answering the questions posed by SP5 upon the
exhibits being recovered. The reaction of the Accused being surprised
or terkejut when being examined is neutral because an innocent
person may also react in a similar manner. His reaction being one of
fear and trembling terketar-ketar upon answering questions posed
after the drugs were discovered is one not out of the ordinary. An
innocent person may well react with shock and trembling upon
incriminating exhibits being discovered and then having to account for
it. I therefore find that the reaction of the Accused was not one in
which it was reasonable to infer mens rea on the part of the Accused
with respect to the drugs.
[50] Apart from this, the following evidence emerges from the
prosecution case. A key to the padlock of the store where the
offending exhibits were discovered was seized from the Accuseds
right hand immediately after SP5 asked for the key to the store room.
SP5 testified that he discovered the Accuseds National Registration
Identity Card (NRIC) in a black wallet inscribed with the words
Levis on the floor of the store room. The police also found two
Nokia mobile phones and a Blackberry mobile phone.
[51] The discovery of the key to the padlock that opened the store
30
[2016] 1 LNS 714 Legal Network Series
room showed that the Accused had access inside the store room. The
discovery of the Accuseds NRIC inside the wallet found on the floor
of the store room raised an inference that the Accused had at the very
least used the store room from time to time. SP7 further testified that
that the Blackberry discovered in the store room belonged to her and
that she had given it to the Accused some 3 years ago to perform some
repairs. The overall effect of the above is that I find that it is
reasonable to infer knowledge on the part of the Accused with respect
to the drugs found.
[53] The nett weight of the drugs was 880 grams as testified to by the
Government chemist SP4. This enabled the statutory presumption
under section 37(da) (vi) DDA to be invoked against the Accused. The
said section in so far as it is relevant to this case reads:
37. Presumptions
31
[2016] 1 LNS 714 Legal Network Series
[55] I find that the questions posed to SP6 were simple ones which
required no stretch of great intellectual effort to answer. With regard
to how many keys to the padlock there were, in her statement, she said
there was only one key while on oath, there now surfaced 3 keys, one
held by herself, one by Albert and one by the Accused. Her
explanation for the contradiction was that she was forgetful and
mistakenly informed the recording officer that there only existed one
key. She said that she was also scared at the time and that is why she
mistakenly informed the recording officer that there was one key in
the possession of the Accused. I find that her evidence on oath was a
clear attempt to come to the aid of the Accused who was after all her
son. The difference between her explanation on oath and that in her
statement was starkly different and under the circumstances I found it
32
[2016] 1 LNS 714 Legal Network Series
[56] With respect to the part in her statement that stated that she did
not know where the key to the padlock was kept whereas on oath she
testified that the key was kept by the Accused on the top of the door
or in a cupboard next to the door also was a contradiction that I found
material in nature. The difference between the two again being so
stark it can hardly be said that it was not a deliberate attempt to once
again absolve the Accused. Her explanation at first that she could not
remember what she had told the recording officer and then that she
denied she could have forgotten what she said, did not inspire
confidence to say the least. I therefore found a material contradiction
existed and her explanation for the contradiction unacceptable. I
therefore find that the evidence of SP6 has been successfully
impeached.
33
[2016] 1 LNS 714 Legal Network Series
A) DEFENCE CASE
[63] The Accused testified that he has his own room in the house at
the premises at No. 1971 PBA-A, Jalan Tokong Kampung Jawi, 14200
Sungai Bakap (said premises) and he lives there with his mother,
brother and nephew. Therefore his testimony is that he has no reason
to stay in the said store room.
[64] The Accused also testified that he runs a poultry and meat
34
[2016] 1 LNS 714 Legal Network Series
business with Albert and that the place of business is at the side of his
house. He said that the storeroom is never locked because many
people go in and out and store their things there. Among the items
stored there are things belonging to his family as well as to Albert.
[66] The Accused said that things shown in the photographs Exhibit
P1 (10) to (13) outside the store room are disused things belonging to
his family and also to Albert. When referred to Exhibit P2(6) to (9),
he said that these are things found outside the store and the black
stripped trousers found in the pail for storing paint did not belong to
him but to Albert as he had seen him wearing it before.
[67] The Accused further testified that the key to the padlock to the
storeroom is kept on a wooden beam alang in front of the door to the
storeroom which he said is shown in the photograph marked as exhibit
P1(6). He said besides this key, Albert also has a duplicate key and
another duplicate key was kept in the house. This was to enable
35
[2016] 1 LNS 714 Legal Network Series
anyone who wanted to place things for storage there to easily access
the store room.
[68] He testified that the store room is also for the occupants of the
house to store things. He testified that apart from the things which
were stored there, there was also a mattress, pillow, and a fan. These
items are there because Albert frequently stays and spends the night in
the store room several nights a week. He does this, according to the
Accused, because he has family problems.
[69] The Accused also testified that besides himself, his family
members and Albert, Alberts friends including locals and foreigners
also had dropped by the store room to visit Albert to rest there in the
afternoons and at night after work. The Accused further testified that
Alberts car was also visible in the photograph Exhibit P1 (1).
[71] Finally, the Accused said that the 3 hand phones recovered
belonged to Albert. The Blackberry, exhibit P26, he said was not the
one handed to him by SP7 as he had already sold it in order to buy a
new hand phone.
[72] The duty of a trial court at the conclusion of the defence case is
set out in section 182A of the Criminal Procedure Code which reads as
follows:
36
[2016] 1 LNS 714 Legal Network Series
(2) If the Court finds that the prosecution has proved its
case beyond reasonable doubt, the Court shall find the
accused guilty and he may be convicted on it.
(3) If the Court finds that the prosecution has not proved
its case beyond reasonable doubt, the Court shall record
an order of acquittal.
[74] Section 182A states that all the evidence must be considered
by the court. It is to be noted that emphasis has been laid on the
phrase all. In Prasit Punyang v. Public Prosecutor [2014] 4MLJ 282
it was held as follows:
37
[2016] 1 LNS 714 Legal Network Series
[76] In the case of Liew Kaling & Ors v. Public Prosecutor [1960]
MLJ 306, Thompson CJ referred to the quantum of proof required to
prove a case beyond reasonable doubt when he quoted the judgment
of Denning J (as he then was) in the case of Miller v. Minister of
Pensions as follows:
38
[2016] 1 LNS 714 Legal Network Series
[78] In the case of Public Prosecutor v. Datuk Haji Harun bin Haji
Idris & Ors [1977] 1 MLJ 180, Abdoolcader J (as he then was)
explained the phrase reasonable doubt as follows:
39
[2016] 1 LNS 714 Legal Network Series
[80] Aside from the above, the correct thought process and stages
that should be followed by a trial court in the assessment and
evaluation of the defence evidence is that as encapsulated in the time
honoured decision of Mat v. Public Prosecutor [1963] 29 MLJ 263
where it was held by Suffian J (as he then was) as follows:
40
[2016] 1 LNS 714 Legal Network Series
41
[2016] 1 LNS 714 Legal Network Series
[82] Following from the above, if the court does not accept or believe
the defence raised by the accused it must not convict but must proceed
a stage further by considering whether the defence evidence has raised
in the mind of the court a reasonable doubt as to the guilt of the
accused. If it does, then the accused is nevertheless entitled to an
acquittal.
[83] In the event that a statutory presumption under the DDA were to
arise as in this case, it is also incumbent upon the accused to rebut
such presumption on a balance of probabilities.
[84] In the light of the above well-defined principles, this court being
so guided, proceeded to undertake the evaluation of the evidence for
the defence.
42
[2016] 1 LNS 714 Legal Network Series
[85] It is fairly evident that the thrust of the defence is that the said
Albert is the actual perpetrator in this affair and that the subject
matter of the charge which are the offending exhibits in fact belong to
Albert.
[86] At first blush, it is perhaps all too easy to dismiss this defence
as being fairly obvious and transparent in that it was the most
convenient defence to adopt in light of the fact that Albert was not to
be found anywhere. However, an examination of the facts as a whole
must nevertheless be undertaken to see whether the defence though
not capable of belief has nevertheless raised a reasonable doubt in
which case the Accused is entitled to be acquitted. See Mat v. Public
Prosecutor (supra). In this case, the Accused also bears the onus of
rebutting on balance of probabilities the statutory presumption of
trafficking under section 37(da)(vi) DDA.
43
[2016] 1 LNS 714 Legal Network Series
[88] Therefore the whole of the defence case must now be evaluated
in the light of and as against the earlier evidence given by the
prosecution, something that was not possible at the close of the
prosecution case.
[89] Firstly, is the assertion of the Accused that the store room is a
place amongst others, used for storing disused things by the Accused
and his family members. During the course of cross examination of
SP5, Inspector Mohd Fadly B. Shamsuddin, he had admitted that the
store room was used by the occupiers of the house at the said premises
44
[2016] 1 LNS 714 Legal Network Series
[91] The Accused also testified that there was unrestricted access to
the store room as there was no fencing around the house but there was
fencing around the store room. A perusal of the photographs shown
would reveal that the fencing to the store room was in some parts knee
high at the most and thereby not forming any form of obstruction to
anyone who might want to approach the store room. This piece of
evidence was also agreed to by SP5 who said that the house was not
fenced while the store room was, albeit by a very short fence. Access
to the store room was therefore not inhibited in any way.
[92] Next, the Accused testified that the key to the padlock to the
store room is kept on the wooden beam alang, in front of the door to
the store room. He said that the beam is visible in photograph Exhibit
P1 (6) and upon inspection this proved to be the case. It is here that
there is a divergence of evidence as it is the prosecution case that the
key was recovered from the right hand of the Accused during the raid.
45
[2016] 1 LNS 714 Legal Network Series
[93] SP5 testified that when he asked for the key to the padlock, there
ensued an argument between Albert and the Accused, after which he said
that the Accused produced a key which he then seized from his right
hand. SP5 had never mentioned where this key was produced from. Was
the key kept by the Accused at that point of time? If so, where was the
key being kept, was it in his trousers pocket, his shirt pocket, hanging
around his neck or was he holding the key all the while?
[94] In light of the fact that there was no evidence forthcoming from
the prosecution as from exactly where the Accused produced the key,
it is not altogether inconceivable that the Accuseds version that the
key was kept on top of the wooden beam was true or at the very least
capable of raising a reasonable doubt. It is also possible that the
Accused in fact had taken the key from the wooden beam on top of the
door to the store room as he had testified.
[95] Even if this were not the case, the Accused had testified that
there were duplicates kept in the house and by Albert. As Albert was
nowhere to be found, this version of course cannot be ascertained with
absolute certainty. Furthermore, there is no evidence that the police
had conducted any search in the house premises to look for the
duplicate. This lack of investigation on the part of the police ought
not to prejudice the Accused as he may well have, due to this
omission, lost a fair chance of being acquitted.
[96] In the absence of this, what the Accused said about there being
in existence a duplicate key in the house in order to enable the
occupants to store things there with ease cannot be dismissed as
something not possible to fathom. In any event, this gives rise to more
than one inference or possibilities and the Accused is to be given the
benefit of doubt in the event.
46
[2016] 1 LNS 714 Legal Network Series
[97] The fact that an argument ensued between the Accused and
Albert when SP5 asked for the key is also not without significance.
What was the argument about? Of course there is no explanation from
SP5 and the police because the conversation was in Tamil and there is
no evidence to suggest that SP5 was conversant in that language. At
the very least, it is not altogether impossible to infer from the
prevailing circumstances that the argument between the two was
regarding the key. In fact, SP5 in his evidence when asked what the
argument was about, said it was about the key. SP5 went on to say that
Albert did not know the whereabouts of the key and neither did the
Accused at the time although how SP5 was able to derive such
knowledge unless he understood Tamil is not apparent.
[99] The Accused said further that besides storage of disused things,
there was also a mattress, pillow and a fan in the store. This suggests
somewhat strongly that the place was being occupied by someone. SP5
also testified that from the presence of clothings and the pillow, he
believed that it was being occupied by someone who slept there. SP5
further said that he agreed to the suggestion that the drugs which
formed the subject matter of the charge in this case also belonged to
Albert as he had pleaded guilty to possession of the drugs in the paint
storage pail outside the store room.
[100] He also agreed that Albert had many cases before this and that
they were narcotic cases and that he was a suspect in this case and an
important witness. In re-examination, SP5 candidly said that as Albert
had pleaded guilty to the possession of the drugs found outside the
store room, there was a possibility that the drugs found inside the
47
[2016] 1 LNS 714 Legal Network Series
[101] SP8, the investigating officer, was also very candid when she
admitted that both Albert and the Accused had access to the drugs
both in and out of the store room.
[103] SP8 agreed that Albert was an important witness in this case and
that if he was not guilty, he would not have fled. SP5 further agreed to
the suggestion that the drugs recovered may have belonged to the said
Albert. She said that Albert had other cases in Seberang Perai Selatan.
SP8 then testified that when she recorded the statement of the Accused,
he said that he did not know or admit to the drugs in question.
[104] In respect of the 2 Nokia hand phones recovered from the store
room, no link can be made to the Accused as SP8 said that she did not
carry out investigation in respect of the simcards. In respect of the
Blackberry hand phone, although SP7 was called to identify it as the
one she had given to the Accused to repair, she also admitted that if
she were shown a similar colour and model, she would not be able to
tell the difference between the two.
48
[2016] 1 LNS 714 Legal Network Series
[105] She agreed that she is not one hundred per cent sure that the
Blackberry produced in court was the one she had given the Accused.
This makes the assertion by the Accused that the hand phones
belonged to Albert as not inconceivable at all.
[106] The other piece of evidence against the Accused is that his NRIC
was said to have been found in a wallet lying on the floor in the store
room. No further evidence was led as to whether the wallet had other
contents. Was there money and if so how much? Was there a driving
licence? Were there photographs? I do not think I would be met with
much objection if I were to surmise that these are the usual things
normally kept in a wallet. It therefore strikes me as odd that nothing
other than the NRIC of the Accused was found in the said wallet.
[108] At least two inferences are possible here. One is that the
Accused occupied the room and therefore it is only natural that his
personal belongings would be found there including his NRIC, a
possibility that has already been considered and found doubtful in the
light of the fact that he had his own room in the house.
[109] The other possible inference is that if it was true that the
wallet was found on the floor to the store room and contained the
49
[2016] 1 LNS 714 Legal Network Series
[110] The fact that the Accuseds NRIC was said to be in his wallet
found conveniently on the floor of the store room also reminds me of what
was said by Mah Weng Kwai JCA in the Court of Appeal case of Public
Prosecutor v. Norhazwan Abd Wahab [2014] 1 LNS 275 as follows;
SP7 testified that he recovered the Respondents wallet
containing his identity card, driving licence and
Maybank ATM card, from the bag whereas the
Respondent said that it was recovered from his rear
trouser pocket. The learned trial Judge held that it was
more probable for the wallet to be recovered from the
Respondents trouser pocket as "no sane or reasonable
man would place his wallet containing his identity card
in the bag P14 knowing that the said bag contained
proscribed drugs which attract the death penalty".
While the learned trial Judge may have been a little too
dramatic when he said that the recovery of the wallet in
the bag was "too good to be true", but what it really
pares down to is that it is highly improbable for the
Respondent to place his wallet in the bag containing the
drugs unless of course he was unaware that the bag did
in fact contain the drugs, in which case then it cannot
be said that the Respondent had knowledge of the drugs
being in the bag. (emphasis added)
50
[2016] 1 LNS 714 Legal Network Series
[113] However, does this mean that the prosecution need not exclude
the possibility of others having access to the place where the drugs
were found? The case of Public Prosecutor v. Denish a/l Madhavan
[2009] 2 MLJ 194 is often cited as authority for the proposition that
possession need not be exclusive. The source for this belief is derived
from a passage in the case by Abdul Aziz Mohamad FCJ where his
51
[2016] 1 LNS 714 Legal Network Series
52
[2016] 1 LNS 714 Legal Network Series
53
[2016] 1 LNS 714 Legal Network Series
(Emphasis added)
54
[2016] 1 LNS 714 Legal Network Series
55
[2016] 1 LNS 714 Legal Network Series
[120] On the facts of the case, the court found these factors to be
present in the following:
[121] Once again, these factors, save for the Accused having the key,
are absent from the case under consideration. In respect of the element
of exclusivity, the court observed as follows:
56
[2016] 1 LNS 714 Legal Network Series
totality and the total effect of all the evidence lead the
court to? Did it not lead to the inevitable, and the only
conclusion that Siew was found in possession of the
proscribed drugs? In our judgment the answer to the
above question must be in the affirmative. Siew was so
situated with respect to the proscribed drugs found in
the second and the third rooms in the first house that
he had 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 (Public Prosecutor v.
Denish Madhavan and Chan Pean Leon v. Public
Prosecutor applied). The learned trial judge was right
when he held that the prosecution had proved actual
possession of the proscribed drugs against Siew. Having
made the affirmative finding of possession, and as the
amount of dangerous drugs in this case was more than
15g, the learned trial judge invoked (and in our view
rightly) the presumption of trafficking under s. 37(da) of
the DDA. In our judgment, the learned trial judge was
right in calling upon Siew to enter on this defence on the
charge of trafficking against him. (Emphasis added)
[122] It will be noted that the court placed emphasis on the need to
deal with the proscribed drugs to the as owner to them exclusion of all
others when determining the test of exclusivity. The power of disposal
as constituting a necessary ingredient in possession was recently
reemphasised in Law Sie Hoe v. Public Prosecutor [2014] 1 LNS 269.
57
[2016] 1 LNS 714 Legal Network Series
58
[2016] 1 LNS 714 Legal Network Series
59
[2016] 1 LNS 714 Legal Network Series
[125] The above cases drive home the point that the element of
exclusivity and the need to exclude others from access to where the
drugs were found is of paramount importance if the prosecution are
to successfully prove possession. Although on the facts here, it is the
prosecution evidence that the storeroom was locked, this does not
make the principles pronounced in the foregoing cases irrelevant for
it must be remembered that the evidence was that it was used as a
store to keep disused things and so it is reasonable to infer that the
others in the house also had access if they had the key and they
60
[2016] 1 LNS 714 Legal Network Series
would have to have the key in order to enter and place their things
there. The possibility that Albert from all accounts also had access to
the storeroom and with this the not improbable scenario that the
drugs belonged to him for the reasons stated, would tend to negate
the element of exclusive possession on the part of the Accused.
[126] Given the circumstances above and the scenario that at the very
least, the probability that Albert as well could have access to the
storeroom as well as the not improbable version of the Accused that
Albert in fact occupies the room, leads me to the finding that it is not
possible to ascertain whether the drugs in fact belong to the Accused,
or Albert, or both of them.
61
[2016] 1 LNS 714 Legal Network Series
[128] The above pronouncement was adopted and applied by the then
Supreme Court in this country of Choo Chang Teik & Anor v. Public
Prosecutor [1991] 3 MLJ 423. The principle was also applied by
Shankar J (as he then was) in Public Prosecutor v. Aris Yunus [1989]
1 CLJ 239 where the proposition enunciated by Lord Goddard CJ in R
v. Abbot (supra) was quoted. The principle was also quoted with
approval by the Supreme Court in Shamsuddin bin Hassan v. Public
Prosecutor [1991] 3 MLJ 314.
62
[2016] 1 LNS 714 Legal Network Series
[131] Upon a consideration of all the facts above, I find that the
Accused has successfully rebutted the statutory presumption of
trafficking under section 37(da) of the DDA on a balance of
probabilities. I also find that the Accused has raised a reasonable
doubt in the prosecution case. I therefore acquit the Accused of the
charge against him.
63
[2016] 1 LNS 714 Legal Network Series
Penang
COUNSELS:
Public Prosecutor v. Mohd Jamil Bin Yahya & Anor [1993] 3 MLJ
702
Public Prosecutor v. Lim Bong Kat & Anor [1992] 4 CLJ 2173
Dato Mokhtar Hashim & Anor v. Public Prosecutor [1983] 2 MLJ 232
64
[2016] 1 LNS 714 Legal Network Series
Public Prosecutor v. Datuk Haji Harun bin Haji Idris & Ors [1977] 1
MLJ 180
65
[2016] 1 LNS 714 Legal Network Series
Choo Chang Teik & Anor v. Public Prosecutor [1991] 3 MLJ 423
66