Tan Chun Cheng v Public Prosecutor (S-05(M)-335-06/2018 & S-05(M)-336-06/2018)

the impugned drugs, i.e. methamphetamine, is listed as a dangerous drug in the First Schedule to the Act with the net weight as specified in the charge;

the drugs were in the joint possession of the appellants at the relevant time and place stipulated in the charge;

the appellants committed the act of trafficking the drugs at the relevant time and place specified in the charge; and

the appellants had the common intention to commit the offence, as stipulated in section 34 of the Penal Code. 6 See: PP v Poh Chee Huong [2016] 10 CLJ 123 (CA). [11] The element of possession was found to have been proved by application of the statutory presumption in section 37(d) of the Act. In this regard, the learned trial judge had in the Grounds of Judgment stated: The prosecution will adduce evidence to show that the car belongs to the 1st Accused. The prosecution will rely on s. 37A of the Act to invoke the presumption provided under s. 37(d) of the Act to show that both Accused were found to have custody of the black plastic bag containing the dangerous drugs [P15] and therefore, be deemed to have been in possession and know the nature of the drugs. Section 37A of the Act also allows the prosecution to invoke the presumption under s. 37(da) of the Act as the weight of the drugs is 239.04 grams of Methamphetamines which automatically triggered the presumption of trafficking – s. 37 (da)(xvi) of the Act. Both Accused is therefore presumed to be trafficking in the dangerous drugs. ... The prosecution applies the rule of double presumptions i.e. ss. 37(d) and 37(da) of the Act under the new section 37A vide Dangerous Drugs (Amendment) Act 2014 (Act A1457) which come into force on 15.02.2014. Section 37(d) of the Act, already provided “deemed possession and deemed knowledge” unless the other party proves the contrary and there need only be established “finding of custody or control”. As such, there need only to established positive evidence of facts i.e. the prosecution needs to prove that both the Accused had custody or control over exhibit P18 at the material time, therefore it is presumed that the Accused was in possession of P15, a black plastic bag containing P8, the impugned drug. 7 [12] The learned trial judge further found that the following evidentiary facts proves that both appellants had custody and control of P15 in which the drugs (P8) were found, and held as follows: Such evidence clearly proved that both the Accused were having custody or control of P15 in which P8 was found at the material time. The prosecution had also invoked the presumption of knowledge of the drugs under section 37(d) of the Act and in the result, with the aid of the presumption, the prosecution had proven both the Accused had knowledge and possession of the said drugs found in P18 containing P8. [13] As for the element of trafficking, the learned High Court judge found that it had been proved by application of the presumption under section 37(da)(xvi) of the Act as the weight of the drugs exceeded the statutory threshold stipulated therein. In this regard, the learned trial judge held: As a chain reaction for proving possession, the prosecution can invoke the presumption of trafficking under the double presumption rule. Adherence, to the presumption of trafficking under section 37(da)(xvi) clearly the amount 293.04 grams of Methamphetamine automatically triggered the presumption of trafficking, it is undoubtedly large amount and definitely not for personal consumption but the drug must be for the purpose of trafficking. Hence, the learned judge’s findings of possession and trafficking was based on the statutory presumptions in the Act. The learned trial judge had justified the use of the double presumption of possession and trafficking as in sections 37(d) and 37(d)(xvi) of the Act by reference to the Court of Appeal’s decision in Alma Nudo Atenza v PP [2017] 1 LNS 979 8 CA (which has since been overruled by the Federal Court in Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780). [14] As for the element of common intention, the learned trial judge found that “the totality of the evidence points to the irresistible conclusion that both Accused persons did in furtherance of common intention, traffic in the drugs, and in particular found the evidence to show that there exists an element of participation by both appellants in the commission of the offence. The defence case [15] The appellants’ case be summarized as follows:

Two days before the arrest the 1st appellant, who is the registered owner of the Myvi car, had allowed an individual by the name of Simon to use the car. The said Simon had also used the car previously. The appellants and Simon had used the car to carry on an illegal sale and distribution of contraband cigarettes.

In the morning of 19.12.2016, the 1st appellant and his wife Windy Clyres binti Peter (PW2) used the Myvi car to purchase household items from Donggongon Market, Penampang. 9

In the afternoon of 19.12.2016, the 1st appellant and Simon had loaded the car with contraband cigarettes. This was witnessed by PW2. Further, PW4, a member of the police raiding party, in his testimony confirmed that he saw boxes of contraband cigarettes in the boot when the Myvi car was searched at Tower Industrial Centre, but he does not know of what happened to the contraband cigarettes after the arrest of the appellants and the seizure of the car. (The learned DPP confirmed before us, that such contraband were found in the boot of the car.)

At about 4.30pm on 19.12.2016, the 1st appellant drove the car with the 2nd appellant in the passenger seat to Towering Industrial Centre, Penampang, to distribute and sell the contraband cigarettes. Upon arriving at Towering Industrial Centre, the car was stopped by PW3 and the appellants were arrested. PW3 then conducted a search of the car and seized a black package from the front passenger seat.

The 2nd appellant denied having said “Ada, bawah seat sini” in answer to PW3’s question “Ada kamu membawa apa-apa barang salah?” Both appellants testified that they were asked by PW3 to stand at the back of the car during inspection of the same at Towering Industrial Centre. 10

The appellants maintained at trial that apart from them, others had access to the Myvi car, namely Simon and PW2.

The appellants also contended that the caution under section 37(1)(b) of the Act was never explained to them. Findings of trial judge at end of the defence case [16] The learned trial judge had considered at length the various issues raised by the defence and concluded that the appellants had failed to cast any reasonable doubt in the prosecution case. And accordingly held as follows: ... I find that the prosecution had established their case beyond reasonable doubt. Whereas the defence failed to raise a reasonable doubt in the prosecution case. As well as the double presumption of ss 37(d) and (da) of the Act had not been rebutted by the defence beyond reasonable doubt. The appellants were thus convicted and sentenced to death. The appeal [17] Learned counsel for the appellants canvassed several grounds of appeal, which can be summarized as follows:

that the application of the double presumption under sections 37(d) and 37(da)(xvi) of the Act is unconstitutional, and hence, the charge of trafficking has not been established; 11

to prove possession of the incriminating substance, i.e. the drugs, the prosecution must exclude others who would have had access to the Myvi car where the package containing the drug was found. The element of exclusive control and custody of the car is a prerequisite to proving possession of the package found in the car;

that the caution under section 37(1)(b) of the Act was never explained to the appellants and hence any statements made by the appellants to the police after their arrest are inadmissible; and

misdirection by the learned trial judge from the failure to properly evaluate the evidence in light of the police raid being carried out following a public tip-off. First issue – double presumption [18] The learned High Court judge had indeed invoked both presumptions under sections 37(d) and 37(da)(xvi) of the Act. The Federal Court had in a recent decision declared section 37A of the Act as unconstitutional, thus striking down the application of double presumption. See: Alma Nudo Atenza v PP & Another Appeal (supra) reversing the decision of the Court of Appeal. The effect of that decision of the Federal Court is that the law is as that pronounced in Muhammed Hassan v Public Prosecutor [1998] 2 CLJ 170. Hence, we are of the view that the finding 12 of guilt by application of the double presumption in sections 37(d) and 37(da)(xvi) of the Act is untenable in law, and therefore erroneous, unsafe and ought to be set aside. [19] Though the Federal Court decision was made post the High Court judgment in this case, it is nevertheless applicable to this appeal. By the doctrine of stare decisis and the principle of prospective overruling, we have to apply the law as it stands to all pending proceedings, including this appeal, which is a pending proceeding. See Veheng Global Traders Sdn Bhd v AmGeneral Insurance (formerly known as Kurnia Insurance

(M) Bhd) & Another appeal [2019] 7 CLJ 687; Ling Peek Hoe & Another v Ding Siew Ching & Another Appeal [2017] 5 MLJ 385; Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311. Thus, on this ground alone the appeal must be allowed. Second issue - possession [20] If that is so, can this court reduce the charge to one of possession under section 39A(2) of the Act, and find the appellants guilty on this lesser charge and sentence them accordingly. We are of the view that this court has the jurisdiction and power to do so, provided that there is sufficient evidence to invoke the presumption of possession under section 37(d) of the Act. See: Muhammed Hassan v Public Prosecutor [1998] 2 CLJ 170. 13 [21] However, when the collective evidence is considered, we do not find the element of possession being proved. The fact is that the 1st appellant is the registered owner of the Myvi. However, that by itself does not mean that anything and everything found inside the car necessarily belongs to the owner. In PP v Muhamad Nasir Shaharuddin & Anor [1992] 1 LNS 8; [1994] 2 MLJ 576, possession was explained in the following manner: Possession is not defined in the DDA. However, it is now firmly established that to constitute possession, it is necessary to establish that; (a) the person had knowledge of the drugs; and (b) that the person had some form of control or custody of the drugs. To prove either of these two requirements, the prosecution may either adduce direct evidence or it may rely on the relevant presumptions under s 37 of the DDA. In respect of the drugs in the plastic package found in the car, the prosecution relies on the statutory presumption in section 37(d) of the DDA that reads: In all proceedings under this Act or any regulations made thereunder:

any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall until the contrary is proved, be deemed to have known the nature of such drug. Thus, in order to rely on section 37(d) of the DDA, the prosecution must show that the appellants had in their custody or control the Myvi car, as well as the plastic package. It must be shown that the appellants had 14 exclusive joint possession of the plastic package, meaning that they must have the power to exclude all other persons from enjoyment of the chattel. See: PP v Denish Madhavan [2009] 2 CLJ 209 FC. [22] The law is trite that the onus is on the prosecution to rule out access by others to the car. See Hussin Bin Sitorus v Public Prosecutor [2012] 3 MLJ 782 (CA). Accessibility by others to the place where the drugs were found should be excluded by the prosecution by adducing cogent evidence. In this case, apart from the 1st appellant, the evidence shows that his wife (PW2) and Simon also had access to the car and had also used the car from time to time. In fact in examination in chief PW2 testified that there were two keys to the Myvi car, one held by the 1st appellant and the other by PW2. The evidence of PW2 also shows that Simon, who is the 1st appellant’s business partner, had frequently borrowed the car. The last occasion being two days before the arrest of the appellants. Both the 1st appellant and Simon had used the Myvi car for the purposes of selling and distributing contraband cigarettes. PW2 further testified that because of the strong cigarette smoke smell in the car, she often left the car windows wound down when it was parked at their apartment. These evidence of PW2 were delivered in the course of her testimony as a witness for the prosecution and thus forms part of the prosecution’s case. Hence, we find that the prosecution had failed to exclude accessibility to 15 the car by others, apart from the appellants. The drugs could have been placed in the car by any one of those having access to it and then tipping-off the police. When such a possibility exists, it must be resolved in favour of the appellants. [23] Further, the prosecution had invoked common intention under section 34 of the Penal Code to make both the appellants culpable. Section 34 of the Penal Code makes a person liable for an offence carried out by another with whom he shared common intention to commit the offence. Section 34 of the Penal Code states: When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. Thus, section 34 of the Penal Code recognises the principle of ‘vicarious liability’ in criminal jurisprudence. For section 34 to apply, it is not necessary to show some overt act on the part of the accused. The prosecution’s case can rest on circumstantial evidence. See: Suresh v State of Uttar Pradesh AIR [2001] SC 1344, and Hari Ram v State of Uttar Pradesh [2004] 3 LRI 523 (SC), which were followed by the Court of Appeal in Sabarudin Non v PP & Other Appeals [2005] 1 CLJ 466 CA. [24] Additionally, the existence of common intention is a question of fact in each case to be proved mainly as a matter of inference from the 16 circumstances of the case. Common intention presupposes prior concert or a meeting of the minds before the commission of the offence. Such intention may have developed from pre-planning prior to the offence, or in the course of commission of the offence, or at the spur of the moment. See: Sabarudin Non v PP & Other Appeals [2005] 1 CLJ 466 CA; Namasiyiam Doraisamy v Public Prosecutor & Other Cases [1987] CLJ Rep 241 SC. However, we do not find any evidence of pre-planning or meeting of the minds, either direct or circumstantial in this case. Nor do the evidence give rise to an inference that the appellants were in joint possession of the drugs. [25] In the present case, the appellants were both seated in the Myvi car within which the drugs were found. Mere proximity to the thing seized does not necessarily equate to possession of it. Thus, in Low Thiam Teck v Pendakwa Raya [2014] MLJU 1005, the Court of Appeal held that: On the issue of proximity to the drugs, we agreed with learned counsel that physical proximity to the drugs per se is insufficient to prove possession without proof of knowledge. Except for the evidence of proximity, there was nothing in the conduct of either the appellant or the 2nd accused at the time of their arrest upon which a prima facie inference could be made that the appellant or both of them had knowledge of the drugs. At the highest, the evidence merely showed that perhaps the appellant had some momentary custody of the bags together with the 2nd accused. In such circumstances there was no possession (per Lord Morris in Warner v Metropolitan Police Commissioner [1968] 2 All ER 356). 17 Thus, physical proximity of the accused persons to the package per se is insufficient to establish possession. The prosecution has the duty to prove exclusive control and custody of the chattel and also knowledge of its contents by the appellants by additional evidence. This, the prosecution has failed to do. See also PP v Abd Razak Termizi [2011] 4 MLJ 76 CA. [26] Fingerprint analysis and/or DNA matching are vital investigative tools that the police could have utilised to establish control, custody and knowledge of the drugs by accused persons and to also rule out possession by others. In this regard, it would be apposite to refer to the observation of the Federal Court in Chan King Yu v Public Prosecutor [2009] 1 MLJ 457, where the court held as follows: The plastic bag with its content that was recovered from the dustbin where the appellant had allegedly thrown it was not sent to the fingerprint department for analysis at all. Despite this the trial judge and the judges of the Court of Appeal never once considered the failure of the police to send this vital piece of the evidence for fingerprint analysis…. [27] Similarly, Zainun Ali J (as she then was) in PP v Mok Kar Poh [2001] 5 CLJ 206 made the following observation: Next comes the question of the fingerprints of the accused. It is the defence’s contention that the failure of the prosecution to dust the six packages for fingerprints and the failure to take hand swaps or nail clippings from the accused to show whether there are traces of drugs on his hands, would be to their detriment, since it does not show any link between the accused and the drugs. Possession is also not to be inferred in the absence of this nexus. 18 Although this court concedes that the above methods in some situations are merely procedural, it would be a wise prosecution which would do all things necessary to bring home the charge. It is almost careless and capricious to say that since the accused was arrested on the spot and his identity is known, what good would taking fingerprints and nail clippings do? It is this court’s view that it would be prudent for the prosecution not to be oblivious to the obvious methods required to close the gap. Thus it is clear from the facts and surrounding circumstances, that the question of custody and control and by necessary implication, possession which is in nature, is not made out by the prosecution. Since knowledge is a vital element to impute possession and in the absence of any evidence of actual knowledge, it therefore cannot be said with conviction that the circumstances clearly and irresistibly point to the fact that the accused had knowledge of the said drugs. [28] Further, we do not find any evidence from which inference could be drawn to the effect that the appellants had the power or intent to deal with the drugs jointly, as if they were the owners. Neither do we find any evidence showing that the appellants had the power of disposal to the exclusion of others over the drugs that were seized. [29] Therefore, in the overall, we find that the element of custody and control of the package containing the drugs, which is a prerequisite for the presumption of possession to arise under section 37(d) of the Act, has not been established. Hence, possession was not proven. See: Azizan Bin Yahaya v Public Prosecutor [2013] 1 MLJ 180 (CA); Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360; [1991] 3 CLJ 2914. 19 Third issue – administering of caution [30] In Jayaraman & Ors v Public Prosecutor [1982] 2 MLJ 306 the Federal Court adopted the words of Lord Devlin in Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 (PC) as to when an arrest occurs: An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will if necessary, use force to prevent the individual from going where he may want to go. It does not occur when he stops an individual to make inquiries. This is consonant with the provisions of section 15(1) of the Criminal Procedure Code which reads:

In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action. Now, the evidence of the arresting officers PW3 and PW4, as well as the appellants, shows that the appellants’ liberty were curtailed and restrained when PW3 and his team of police officers stopped the car and started to search the car. The appellants’ freedom of movement was curtailed. They were asked to stand behind the car when the car was searched. Hence, the appellants were for all intents and purposes under arrest. 20 [31] Any statements made to a police officer by a person after arrest is inadmissible unless the statutory preconditions laid down by section 37B of the Act are satisfied (previously it was section 37A(1)). See: Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360. And the statutory requirement is that the arresting officer must have administered the caution as stipulated in section 37B(1)(b) of the Act. The evidence of PW4, who is said to have translated the caution given by PW3 in Bahasa Malaysia to Mandarin, is that he did not explain the caution to the appellants. In Mohd Zaiham Mislan v PP [2010] 1 CLJ 1, the Federal Court held that though the then section 37A(1) of the Act (the predecessor to section 37B(1)(b)) was silent on whether the caution needed to be explained, there may still be a requirement for it to be explained in appropriate cases or circumstances. [32] And more recently, on the requirement to explain the caution to a person under arrest, my learned sister Zabariah Mohd Yusof JCA (now FCJ) had in PP v Tiong Wee Kiet [2018] 7 CLJ 716 held as follows: [41] ... There was no evidence of the exact words of the caution, and neither was there evidence that the caution was explained and if explained, what was the explanation like (refer to Ngu Chee Wui v. PP [2015] 9 CLJ 562). A mere reading of the caution would not be sufficient. The consequences of the caution must be explained to the accused as the implication of the answers given after the caution is read is very crucial and can incriminate the accused person (refer to PP v. Mohd Fuzi Wan Teh & Anor [1989] 2 CLJ 652; [1989] 2 CLJ (Rep) 341). 21 [42] The caution is to alert the accused that he has the right to remain silent. Hence, the rationale for the caution to be properly read and administered using the words which would be properly understood by the accused person. Thus, this Court has reiterated the principle that the mere reading of the caution would not suffice. There is a requirement in law for the caution and its consequences to be explained to the accused. However, as admitted by PW4, the nature and consequence of the caution was never explained to the appellants. Hence, we find that the statements made by both appellants to PW3, or for that matter to any other arresting officer, after the arrest, including the two statements relied on by the prosecution are inadmissible. Thus, we find that the learned judge had erred in admitting these statements and relying on them when making her findings. [33] When these statements are excluded from the body of evidence, we find that there is insufficient evidence to connect the appellants to the drugs seized from inside the car. At best the evidence of the prosecution against the 1st appellant is that he was the registered owner of the car and, that the 2nd appellant was a transient passenger. And that they were both in the car in which the drugs were found. In the circumstance, there is no evidence of common intention to traffic in the drugs by joint possession of the same. As possession of the drugs had not been positively proved, we find that the learned trial judge had misdirected 22 herself in calling for the appellants to enter their defence and convicting them on a charge of trafficking. Fourth issue – misapplication of the standard of proof [34] Further, we find that the learned judge had misdirected herself when she found that “the double presumption of ss 37(d) and (da) of the Act had not been rebutted by the defence beyond reasonable doubt”. The onus on the appellants to rebut any presumption under sections of ss 37(d) and (da) of the Act is on balance of probabilities and not beyond reasonable doubt. See: Mohamad Radhi Yaakob v. PP [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311 (SC). Hence, the learned trial judge had applied the wrong standard of proof. Conclusion [35] In the premise of the above, we are of the view that the conviction of the appellants is unsafe. Thus, we allowed the appeal and set aside the conviction and sentence, and ordered that the appellants be acquitted and discharged. Dated this 12th day of February 2020. Sgd Vazeer Alam Mydin Meera Judge Court of Appeal 23 Counsel/Solicitors For Appellant: Encik Dominic Chew Tetuan Hairul Vaiyron & Co Ground & 1st floor Lot 4 Block 25, Penampang New Township 88200 Kota Kinabalu Sabah For Respondent: DPP Nik Syahril bin Nik Ab Rahman Pendakwa Raya Timbalan Pendakwa Raya Jabatan Peguam Negara Putrajaya