Chan Kah Kin v Pendakwa Raya (R-05(M)-47-02/2020 & R-05(M)-63-02/2020)

(a) that the learned trial judge had misdirected himself in ruling that the prosecution had established a prima facie case at the close of the prosecution case; and

(b) the learned trial judge had misdirected himself in law by placing a heavier burden on the appellant to adduce sufficient evidence to rebut the presumption of possession under section 37(d) of the Act, as stated in the Grounds of Judgment: “Perayu perlu mengemukakan keterangan diatas beban kebarangkalian untuk mematahkan anggapan pemilikan dibawah s.37(d) Akta Dadah Berbahaya.” 1st Issue – Prima facie case [12] The appellant contends that the prosecution had failed to prove a prima facie case at the close of the prosecution, and that the learned trial judge was wrong in calling for him to enter defence. Learned counsel for the appellant submits that the prosecution had failed to prove 6 ownership of the car, and with that learned counsel argues that the element of possession and knowledge of the drugs by the appellant had not been established. [13] Now, in order to establish a prima facie case for a charge under section 39B(1)(a) of the Act, the prosecution has to establish the following elements of the offence of trafficking in drugs, namely that:

(i) the drugs are dangerous drugs within the meaning and definition ascribed in the Act;

Berdasarkan nas-nas yang dirujuk sebelum ini, saya berpendapat Tertuduh mempunyai jagaan dan kawalan ke atas 26 bungkusan plastik yang mengandungi dadah Methamphetamine yang dijumpai tersorok di bahagian bawah dashboard. Saya menimbangkan keterangan-keterangan berikut bagi membuktikan jagaan dan kawalan atas dadah berbahaya:

(i) SP2 telah menemui dadah berbahaya yang terlibat dibahagian bawah dashboard kenderaan tersebut;

Saya memutuskan pendakwaan berjaya membuktikan jagaan dan kawalan ke atas dadah-dadah yang dijumpai dibahagian bawah dashboard kenderaan tersebut dan Tertuduh 12 dianggap mempunyai pemilikan dibawah s.37(d) Akta itu dan selanjutnya dianggap mengetahui dadah-dadah yang tersembunyi.

Saya juga berpendapat bukan keperluan undang-undang bagi pendakwaan untuk membuktikan pemilikan eksklusif atas kenderaan tersebut (sila rujuk kes Denish Madhavan [supra] mengenai prinsip undang-undang ini).

Peguam Tertuduh yang terpelajar ada membangkitkan isu kegagalan pihak pendakwaan mengemukakan sijil kematian pemilik berdaftar kenderaan tersebut iaitu Lai Ngow Chin, kegagalan mengemukakan kad pendaftar kenderaan tersebut dan kegagalan memanggil Pegawai JPJ dan menggesa saya mengambil inferen bertentangan dibawah s.114(g) Akta Keterangan 1950. Saya berpendapat tanpa sijil kematian dan kad pendaftaran kenderaan tersebut tidak mencacatkan kes pendakwaan. Pembelaan tidak mempertikaikan semasa SP2 menahan Tertuduh di Kompleks ICQS Padang Besar, Tertuduh yang memandu kenderaan tersebut dan membawa dadah-dadah yang tersembunyi di bahagian bawah dashboard kenderaan tersebut. Saya berpendapat walaupun Pegawai JPJ tidak dipanggil ia tidak menjejaskan kes pendakwaan. Saya berpendapat bagi kesalahan pengedaran dadah, bukan keperluan undang-undang untuk membuktikan siapakah pemilik berdaftar kenderaan tersebut. Saya merujuk kes PP v Letchumanan Suppiah [2006] 1 CLJ 557 ada merungkai isu ini seperti berikut: [2] With due respect to the learned judge, the issue of ownership of the motorcycle was an irrelevant one. The issue was one of custody or control of the orange plastic packet in the carrier basket of the motorcycle, which in the circumstances of this case, would not involve the ownership of the motorcycle on which the accused was riding wherein in the carrier basket, within sight of the accused and the police party, was 13 found "anything whatsoever containing any dangerous drugs". Without calling the accused's brother as a witness, the prosecution was able to discharge the burden of establishing possession with knowledge of the drugs by the accused with the aid of the presumption under s. 37(d) of the Act. (paras 15)

Saya berpendapat anggapan s.114(g) Akta 1950 tidak terpakai terhadap pendakwaan sebagaimana yang cuba dihujahkan oleh pembelaan. Saya juga berpendapat walaupun SP5 (Pegawai Penyiasat) tidak melakukan siasatan bagi mendapatkan dokumen yang disarankan oleh pembelaan iaitu D44A-C dan D45, saya memutuskan ia tidak menjejaskan kes pendakwaan.

Saya turut menimbangkan hujahan peguam Tertuduh yang terpelajar berkaitan kelakuan Tertuduh semasa berada di Lorong Bas ketika ditahan pada awalnya dan di IPD Padang Besar sebaik ditemui dadah yang tersembunyi di bahagian bawah dashboard kenderaan itu, saya berpendapat tindakan atau reaksi orang yang biasa. Saya merujuk kes Savarimuthu Thevarajah v PP [2019] 1 LNS 987 dimana YA Stephen Chung Hian Guan HMR ada merungkai isu yang sama seperti berikut: Several inferences could be made from the facts, one of which was that he looked shocked and in trying to run away reflected a guilty mind. It could also be inferred that he was trying to flee from a group of strangers who approached him. We were of the view that the appellant looked shocked and tried to flee did not necessarily lead to the irresistible inference that he had knowledge of the drugs. We find support in our finding from the observation of the Federal Court in PP v. Tan Tatt Eek [2005] 4 CLJ 460; [2005] 2 MLJ 685 as follows: 14 To my mind the reaction of shock and the dropping of the bag exhibited by a person caught by surprise does not unequivocally show guilt. It could easily be the reaction of an innocent but surprised person. No firm inference can be drawn on the basis of such insufficient evident. Saya memutuskan tidak menjadi reaksi Tertuduh untuk infer pengetahuan tentang dadah berbahaya yang menjadi teras pertuduhan. [21] So it is clear that based on the evidence adduced by the prosecution, the learned trial judge had relied on the statutory presumption in s.37(d) of the Act to find that the appellant was in possession of the drugs by virtue of the appellant’s control and custody of the 26 plastic packages containing the drugs that were found hidden behind the bottom of the dashboard of the car. [22] As for the third and final element of the offence, i.e. that the appellant was trafficking in the drugs, the learned High Court Judge found that based on the definition of trafficking in s.2 of the Act, the act of the appellant in driving the vehicle with the drugs hidden in the dashboard of the car from Thailand into Malaysia via the ICQS Complex in Padang Besar would constitute direct evidence of trafficking, as this would amount to transporting or carrying the drugs. 15 Appellant’s submission [23] The appellant through his counsel submits that the learned judge misdirected himself when he did not give his reasons as to why the appellant was found to have control and custody of the drugs in the 26 plastic packages. Now, contrary to that assertion, we find that the learned trial judge did give his reasons as to why he was of the opinion that the appellant had control and custody of the 26 plastic packages. The learned judge said that the 26 plastic packages were found hidden behind the bottom of the car’s dashboard, and the appellant who had driven the car from Thailand into Malaysia across the border checkpoint was the only one in the car at that time. When the car was stopped by the police, apart from the appellant, there was no one else in the car. The appellant was in custody of the car and had custody of the 26 plastic packages found in the car. [24] The learned trial judge had also considered the argument of learned counsel for the appellant that the car was registered in someone else’s name and not the appellant. The learned judge had discounted the fact of ownership of the car, and held that the relevant evidence would be the fact of the appellant solely driving the car laden with the drugs in the 26 plastic packets, and not ownership of the car. The Investigation Officer (SP5) had informed the court that his investigations 16 show that the registered owner had died. In the circumstances of the fact of the case, we agree with the learned trial judge that the fact of the ownership of the car or the car owner’s death are not relevant facts to be established by the prosecution to prove the charge against the appellant. Hence, we agree with the learned trial judge that in the circumstances of the facts of the case, there is no necessity to prove the registered owner’s death by production of his death certificate, or to prove actual ownership of the car by production of the JPJ records. [25] In PP v Abdul Rahman Akiff [2007] 4 CLJ 337, Arifin Zakaria FCJ (as he then was) held: [24] Applying the observations set out in the authorities cited above to the facts in the present case, the irresistible inference that may be drawn in the circumstances is that the respondent all along knew about the drug found in the car. The fact that they were found hidden under the seats of the car and wrapped in Chinese newspaper would not assist him to negate such an inference. From the evidence of PW5 it is clear that little effort was required to uncover what was contained in the 3 packages. Therefore, we are of the view that on the facts and in the circumstances of this case the learned trial judge, properly directed on the law, would have come to the finding that prima facie the respondent had possession of the drug independent of the statutory presumption under s. 37(d) of the Act. Similarly, in the present appeal, the drugs were in the 26 plastic packages, which were hidden behind the dashboard of the car. When 17 discovered, little effort was needed to uncover what was contained in the 26 plastic packages. [26] Further, in PP v Abdul Rahman Akiff [supra] the Federal Court had referred to the judgment of the Singapore Court of Appeal in Zulfikar bin Mustaffah v. PP [2001] 1 SLR 633, at p. 639, where in respect of the element of possession it was held:

For the element of 'possession' (within the meaning of s. 17 of the Misuse of Drugs Act) to be established, it must not only be shown that the accused had physical control of the drugs at the relevant time; the prosecution must also prove that the accused possessed the requisite knowledge as to the contents of what he was carrying: see Warner v. Metropolitan Police Commissioner [1969] 2 AC 256; Tan Ah Tee & Anor v. PP [1978] 1 LNS 193; [1978-1979] SLR 211; [1980] 1 MLJ 49. In the course of the appeal before us, counsel for the appellant relied heavily on the fact that the contents of the bundles were securely wrapped in newspapers and could not be identified. We were accordingly invited to draw the inference that the appellant had no knowledge of the contents of the bundles.

We were unable to accede to this request. While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlers could escape liability simply by ensuring that any drugs coming into their possession are first securely sealed in opaque wrappings. Rather, the court must appraise the entire facts of the case to see if the accused's claim to ignorance is credible. As 18 Yong Pung How CJ remarked in PP v. Hla Win [1995] 2 SLR 424 (at p. 438): In the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses. [27] Applying these case authorities to the facts of the present case, we agree with the learned trial judge’s finding that the appellant had custody and control of the 26 plastic packages containing the drugs that were found inside the car driven by the appellant. The learned trial judge had scrutinized the entire evidence to ascertain whether an inference can be drawn that the appellant had control and custody of the 26 plastic packages found in the car. It is not in dispute that the 26 plastic packages were found hidden behind the dashboard of the car. The appellant was alone in the car at the material time. One other important and relevant factor is that the car was driven by the appellant from Thailand into Malaysia when he was arrested at the border crossing in Padang Besar. [28] In the circumstance, we find that the learned trial judge had correctly invoked the statutory presumption in s.37(d) of the Act, which reads: 19 In all proceedings under this Act or any regulation made thereunder-

(d) 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; The presumption is invoked once the accused is shown to have control or custody of “anything whatsoever containing any dangerous drug”. The “anything whatsoever containing the dangerous drugs” here would be the 26 plastic packages hidden in the car’s dashboard. Once that is proved then the presumption that the accused was in possession of such dangerous drugs would arise, until the contrary is proved by the accused. We find, for reasons discussed earlier, that there is sufficient evidence to find the appellant to be custody and control of the 26 plastic packages found in the car. [29] Now, as for knowledge, direct evidence of knowledge is a rarity. Knowledge must necessarily be inferred from the surrounding facts and circumstances. This was reiterated by this Court in Simon Savarimuthu Thevarajah v. PP [supra] in the following terms: On the facts before us, we were in as good a position as the trial judge to draw the inference whether the appellant had knowledge of the drugs. It is trite that proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can 20 be drawn varies from case to case. It is sufficient for the prosecution to prove facts from which it can be properly inferred that an accused person had the necessary knowledge. The court is not concerned with the knowledge of a reasonable man but is concerned with reasonable inferences to be drawn from a concrete situation as disclosed in the evidence as it affects a particular person whose knowledge is in issue (see PP v. Chia Leong Foo [2000] 4 CLJ 649; [2000] 6 MLJ 705; Parlan Dadeh v. PP (supra )). When these principles are applied to the facts, we find that there is ample evidence to infer that the appellant had knowledge of the drugs in the 26 plastic packages hidden in the car. [30] Learned counsel for the appellant submits that the learned trial judge failed to give his reasons for finding that the appellant had knowledge of the drugs found in the 26 plastic packages. Whilst we agree that the learned trial judge did not give his specific reasons for that finding, we find that based on the authorities cited above, and the objectively proven facts, we are in a position to draw that inference. The irresistible inference that can be drawn in the circumstances of the proven facts in this case is that the appellant knew all along about the drugs found in the car. The fact that they were hidden behind the dashboard of the car with some effort, the discovery of which took the police some time, and that too with the use of x-ray machine, would not assist the appellant to negate such an inference. Obviously, the intent in taking this much effort to hide the packages containing the drugs behind 21 the dashboard of the car would be to escape detection by the authorities when the car is driven across the border checkpoint at the ICQS Complex in Padang Besar. This is clear evidence of premeditation, and when the only person in the car at the material time is the appellant, then the irresistible inference is that the appellant had knowledge of the drugs in the packages hidden in the dashboard, that was being transported from Thailand into Malaysia. [31] Learned counsel for the appellant also takes issue with the learned trial judge’s comment that, based on the Federal Court’s pronouncement in Dinesh Madhavan v PP [supra], there need not be exclusive possession of the car by the appellant. The comment by the learned trial must be taken in context, where in discussing the issue of possession of the drugs, the learned judge was stating the law as clarified by Augustine Paul FCJ in Dinesh Madhavan v PP [supra] to the effect that: 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. The learned trial judge was merely stating that possession in law need not be exclusive possession, which is often confused with the element of exclusive power to deal with the object in question which is a constituent 22 element of possession. Thus, we do not find that anything of substance turns on that comment by the learned trial judge. [32] Learned counsel for the appellant further contends that what the prosecution has shown is that the appellant was only “momentarily in control of the car” and as such the appellant cannot be said to be in possession of the car. Learned counsel relied on the High Court case of PP v Chow Kam Meng [2001] 7 CLJ 387 where the Court held that there is no presumption of custody from the mere fact of driving the car where the drugs were found. Now, the facts of that case are very much different from the present case. In any event, the prosecution is not arguing possession by virtue of the appellant’s control and custody of the car, but rather by virtue of the appellant’s control and custody of the 26 plastic packages found hidden in the dashboard of the car. Therein lies the difference. When the prosecution presents its case in that manner, then if the basic facts of control and custody of the 26 packages containing the drugs are proved, then the presumption under section 37(d) of the Act would arise. Hence, we do not find any merit in the fleeting control of the car argument advanced by learned counsel. The appellant cannot be said to be a transient occupant of the car. He was in the driver’s seat having command and control of the car, and drove it across the border into Malaysia. The act of the appellant in driving the 23 car from a neighbouring country into Malaysia across border checkpoints cannot be equated to the appellant being “momentarily in control of the car”. The appellant had full control of the car at all material times. 2nd Issue – The requirement for the appellant to rebut the s.37(d) presumption on a balance of probabilities. [33] Learned counsel for the appellant further submits that the learned trial judge had misdirected himself in law when stating that the appellant needs to rebut the presumption under s.37(d) of the Act on a balance of probabilities. Learned counsel further submits that the statutory presumption in s.37(d) of the Act is not applicable in this case and that the appellant ought to have been acquitted and discharged without defence being called. [34] We do not find any merit in this argument. It is well established that when any statutory presumption is invoked against an accused, then it is incumbent upon the accused to rebut that presumption on a balance of probabilities. See: PP v Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89. The fact that the court had invoked the statutory presumption, which then imposes a burden to rebut the presumption on a balance of probabilities does not mean that the learned trial judge had imposed a higher burden. The obligation to rebut on a balance of probabilities is a 24 requirement of the law, and not of the judge personally. Hence, we find no misdirection by the learned trial judge, as alleged. [35] There is also another issue raised by the learned counsel for the appellant. Counsel asserts that at the end of the defence case there was no finding by the learned trial judge that the prosecution had proved its case beyond reasonable doubt. This, according to learned counsel is a misdirection in law that prejudices the appellant. [36] We note from the Grounds of Judgment that the learned trial judge had considered at length the appellant’s evidence adduced during the defence case. In paragraph 55 of the Grounds of Judgment, the learned trial judge summarises the appellant’s contention, and from paragraphs 56 to 72 there is in depth consideration and analysis of the defence raised by the appellant. Having done that, the learned trial judge concludes in paragraph 73:

Saya telah menimbangkan pembelaan Tertuduh dan berpendapat atas imbangan kebarangkalian, Tertuduh gagal mematahkan anggapan pengetahuan dibawah s.37(d) dan gagal menimbulkan sebarang keraguan yang munasabah atas kes pendakwaan iaitu pengedaran dadah berbahaya iaitu Methamphetamine seberat 19,293.6 gram secara terus bergantung kepada peruntukan s.2 Akta itu. Saya berpendapat Tertuduh bersalah dan disabitkan atas pertuduhan [P1]. 25 Hence, we find that there is proper appraisal of the defence case by the learned judge and the complaint by the learned counsel for the appellant that there is no finding of the prosecution having proved its case beyond reasonable is wholly unfounded. [37] Section 182A CPC sets out the duty of the trial court at the end of the defence case. The court must consider all the evidence adduced before the court to decide whether the prosecution has proved its case beyond reasonable doubt. In this regard, in Prasit Punyang v. PP [2014] 7 CLJ 392, Azahar Mohamed JCA (now Chief Judge of Malaya) held that: In accordance with the provisions of s. 182A(1) of the Criminal Procedure Code, it is the bounden duty of the learned JC, at the conclusion of the trial, to consider all the evidence adduced before him and shall decide whether the prosecution has proved its case beyond reasonable doubt. The legislature has advisedly used the term all the evidence. The emphasis must be on the word all. We find that the learned trial judge had considered all the evidence adduced before him in coming to the conclusion that the prosecution had proved its case beyond reasonable doubt, and convicting the appellant. All aspects of the appellant’s defence was considered by the learned trial judge. 26 [38] In the final analysis, we are satisfied that the appellant had custody and control of the 26 plastic packages and that he knew that they contained drugs, the possession of which is prohibited under the Act. Thus, the presumption under section 37(d) was correctly invoked. In the premise, the next issue is whether the defence had, on the balance of probabilities, successfully rebutted the statutory presumption of possession under s. 37(d) of the Act. (See PP v. Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89 as applied in Ng Chai Kem v. PP [1994] 2 CLJ 593). We find that the appellant did not offer any credible evidence whatsoever which goes towards rebutting that presumption. Therefore, the presumption under s. 37(d) of the Act stands unrebutted. There is evidence of trafficking in the said drugs, by way of transporting and carrying it across the border by the car, which constitutes an act of trafficking as defined in s.2 of the Act. Having considered the evidence of the defence and construing it in totality with the evidence of the prosecution, we find that the appellant has failed to raise any reasonable doubt. Thus, we are satisfied that the prosecution has established its case beyond reasonable doubt. Wherefore, we find that the decision of the learned trial judge in convicting the appellant on the charge and sentencing him to mandatory death as prescribed under the Act is correct and safe. 27 [39] Thus, we dismissed the appeal and affirmed the conviction and sentence of the High Court. Dated this 20th day of November 2021. -sgd-Vazeer Alam Mydin Meera Judge Court of Appeal Putrajaya Peguamcara bagi pihak Perayu: Dato’ Naran Singh (bersama Amrick Singh Sandu) Tetuan Naran Singh & Co. Peguambela dan Peguamcara No. 39, First Floor, Market Street 30000 Ipoh Perak Peguamcara bagi pihak Responden: Dhia Izyan binti Mohd Akhir Timbalan Pendakwa Raya (TPR) Jabatan Peguam Negara Bahagian Perbicaraan dan Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 Putrajaya