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1 IN THE HIGH COURT OF MALAYA AT TAIPING IN THE STATE OF PERAK DARUL RIDZUAN CRIMINAL TRIAL NO. AB - 45A - 1 - 03/2019 BETWEEN
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AB-45A-1-03/2019
High Court of Malaysia11 Nov 2022
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“e of common intention of all of them. Thus, the alleged crime against them was committed in the course of one single transaction, entailing a joint trial of the charges pursuant to section 170 of the Criminal Procedure Code (CPC/Act 593). The offences were alleged to be committed on 31.7.2018 at about 10.30 **Note : Se”
“er will be used to verify the originality of this document via eFILING portal 2 JUDGMENT [1] The accused persons, in this case, three of them, were charged for commission of two offences under the Dangerous Drugs Act 1952 (DDA/Act 234). The first being an offence under section 39B (1) (a) DDA punishable under section 3”
“aid by the policemen bespeaks of their state of mind and conduct which is a relevant fact influenced by the fact in issue which is, possession of the dangerous drugs, pursuant to section 8 (2) of the Evidence Act 1950 (EA/Act 56). • Since it is a relevant fact, it is rendered admissible as evidence against all three ac”
“sion of dangerous drugs committed by the accused persons arising from the same raid, arrest, search and seizure. As the accused persons were found together with the dangerous drugs, section 34 of the Penal Code (PC/Act 574) is cited as their mode of participation in the crime, which was in furtherance of common intenti”
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1 IN THE HIGH COURT OF MALAYA AT TAIPING IN THE STATE OF PERAK DARUL RIDZUAN CRIMINAL TRIAL NO. AB - 45A - 1 - 03/2019 BETWEEN
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BERABAKARAN PILLAI A/L VIJAYAN TULASI NATHAN A/L MUNIANDY JUDGMENT [1] The accused persons, in this case, three of them, were charged for commission of two offences under the Dangerous Drugs Act 1952 (DDA/Act 234). The first being an offence under section 39B (1) (a) DDA punishable under section 39B (2) DDA for trafficking 21.8 g of dangerous drugs comprising 9.1 g heroin and 12.7 g of monoacetylmorphines. The second charge is for an offence under section 12 (2) DDA punishable under section 39A (1) DDA for being in possession of 1.74 g of methamphetamine. Both the charges emanate from offences of trafficking and possession of dangerous drugs committed by the accused persons arising from the same raid, arrest, search and seizure. As the accused persons were found together with the dangerous drugs, section 34 of the Penal Code (PC/Act 574) is cited as their mode of participation in the crime, which was in furtherance of common intention of all of them. Thus, the alleged crime against them was committed in the course of one single transaction, entailing a joint trial of the charges pursuant to section 170 of the Criminal Procedure Code (CPC/Act 593). The offences were alleged to be committed on 31.7.2018 at about 10.30 am, in a house located at no. 63, Lorong Pengkalan Maju 2, Taman Pengkalan Maju, 34700, Simpang in the district of Taiping, Perak. [2] Six witnesses were called by the prosecution to prove its case, at the end of which it was decided that a prima facie case was proven against all three accused persons for the offences committed by them as adumbrated in the two charges preferred against them, pursuant to section 180 (1) CPC read together with section 180 (4) CPC, thus calling upon them to enter on their defence pursuant to section 180 (3) CPC. [3] Facts of case as revealed from the narrative of prosecution via its witnesses are the following: • The crime took place on 31.7.2018 in a house located at no. 63, Lorong Pengkalan Maju 2, Taman Pengkalan Maju, 34700, Simpang in the district of Taiping, Perak. • Raid was undertaken by the raiding officer SP5 assisted by SP4 and four other policemen. • Before the raid took place, the policemen were briefed by SP5. Two of them were tasked to guard the back of the house, whereas SP5, SP4 and two other policemen were guarding the front of the house. • The raiding team took their position and they were surveilling the house for a good 15 to 20 minutes from a distance of about 30 – 50 meters away from the house. • It is revealed and unrebutted that there was no movement to and from the house during the entire period of surveillance by the raiding party. • In front of the house, there was a motorcar and a motorcycle parked. • The raid then took place. The outside gate to the house was open and partially ajar. The grill door to the house was also left opened. The main wooden door to the house was closed but not locked, thus enabling the raiding team who were guarding front of the house to enter into the house with ease. • When they entered the house, voices of people having conversation was heard from the third room at the left of the house. • On examination, it was revealed that three Indian men were inside the room having a conversation. In front of them on a table were found some plastic packets. • SP5 introduced himself as a police officer. When they were asked for their identity card, they refused to cooperate and hand it over. They decided to liberate themselves. SP5 then took steps to restraint and arrest them, resulting in a forceful struggle, after which a scuffle took place between the three Indian men and policemen including SP5 and SP4. The scuffle continued from the said room until the living room and to the porch of the said house. • The three Indian men were then arrested, later identified in court as the three accused persons. • Resulting from the scuffle, one policeman was injured on his arm. The first accused Maniarasan was also injured on his right eye; the second accused on his left eyebrow, knee and mouth and the third accused on his nose. • Therefore, the liberation, struggle and scuffle were grave and vigorous, causing injuries to all of them, including the raiding team whom had entered the house from the front. • Consequent to the raid, search and seizure of incriminating substances took place inside the said room, wherein one transparent plastic packet and another five transparent plastic packets suspected to contain dangerous drugs were found and seized. • The impugned drugs were then sent to the Chemistry Department for chemical analysis as to its nature, later confirmed by the chemist SP1 to be dangerous drugs, its weight as alluded to earlier and specified respectively in the two charges preferred against all three accused persons. • The said impugned drugs were tendered in court as exhibits in this order. As for the one plastic packet – P8, P8(A) and P8(B); and the five plastic packets – P9, P9(A), P9(B), P9C (1-5). [4] Henceforward, at the end of the case of prosecution, it was proven by the prosecution with credible evidence, free from reasonable doubt that: • The dangerous drugs were seized from the three accused persons. • They were in possession of the impugned drugs. • Basis being – o only three of them were inside the said room at the time of raid, arrest, search and seizure and no one else; o literally there was no movement of other individuals to and from the house throughout the entire period of surveillance by the raiding team; o they did not cooperate with the policemen at the material time but had attempted to liberate themselves from restraint and arrest resulting in a grave and vigorous scuffle which took place amongst the policemen and the three accused persons, leading to infliction of injuries on all of them; o the three accused persons were aggressive in their behavior to the policemen; and o the impugned drugs were found on the table in front of them in a conspicuous manner, unhidden from the naked eye. • Proof of knowledge on the existence and nature of the dangerous drugs does not come in the form of direct evidence, but has to be inferred by this court premised on inferential evidence premised on the circumstance in which the incriminating substances were found with the accused persons. (See the plethora of case authorities like Surentharan Selvarajah v PP (2005) 2 CLJ 264; Ibrahim Mohamed v PP (2011) 4 CLJ 113; and the Singapore case of PP v Hla Win (1995) 2 SLR 424). • In the present case, all three accused persons were found with the impugned drugs. It was found with them conspicuously on a table when they were together without any other individuals inside the room. They were standing near the impugned drugs and the plastic packets containing it could be seen by the naked eye. • Thus, they were in close proximity to the impugned drugs. • Hence, they were conscious of possession of the impugned drugs. • When they were confronted by the raiding party, they became aggressive and decided to liberate themselves from any form of restraint and arrest. The accused persons’ state of mind may be gathered from the evidence as to what they did and how they reacted to the police officers who were carrying out the raid. (See: PP v Badrulsham bin Baharom (1988) 2 MLJ 585). • The aggression came about only after SP5 introduced himself as a police officer. • Their close proximity to the impugned drugs and aggressive conduct at the material time of raid by the policemen bespeaks of their state of mind and conduct which is a relevant fact influenced by the fact in issue which is, possession of the dangerous drugs, pursuant to section 8 (2) of the Evidence Act 1950 (EA/Act 56). • Since it is a relevant fact, it is rendered admissible as evidence against all three accused persons pursuant to section 60 (1) (a) and (c) EA via direct testimony of SP4 and SP5, as they had seen and perceived the conduct of all the three accused persons with their own sense of sight and touch. • The incriminating substances were confirmed to be dangerous drugs by the chemist SP1 pursuant to her chemical analysis. Her testimony in court had lend support to the nature and identity of the substances. • This court had accepted the opinion of SP1, as her evidence was not inherently incredible and uncontroverted by the accused persons, as there was no cross-examination by their counsel. Since, her evidence in court was credible and free from reasonable doubt, it was accepted. (See: Munusamy v PP (1987) 1 MLJ 492). • On the first charge of trafficking of dangerous drug, its constituent need not be proven as the case of the prosecution is not anchored on section 2 DDA, but premised on invocation of the statutory presumption found in section 37 (da) (iiia) DDA, which provides that pursuant to an affirmative finding of possession of the dangerous drugs by the three accused persons, which is 21.8g - comprising a mix of 9.1g heroin and 12.7g monoacetylmorphines, preceding the act of trafficking of the same, they are presumed under the law to be trafficking the dangerous drugs. Factually, section 37 (da) (iiia) DDA provides: any person who is found in possession of a total of 15 grammes or more in weight of heroin, morphine and monoacetylmorphines or a total of 15 grammes or more in weight of any two of the said dangerous drugs; otherwise than in accordance with the authority of this Act or any other written law, shall be presumed until the contrary is proved, to be trafficking in the said drug. (emphasis is mine) • Thus, it is for the accused persons to prove to the contrary that they were not trafficking the said dangerous drugs. • For support that this court has to make an affirmative finding of possession before invoking the statutory presumption of trafficking under section 37 (da) (iiia) DDA, see the case of Muhammad Hassan v PP (1998) 2 CLJ 170 which was favorably endorsed in the case of Alma Nudo Atenza v PP (2019) 4 MLJ 1. Both are decisions of the apex Court. • On the second charge, it is a neat and simple case fortified by the prosecution through its witnesses, of possession of the dangerous drug by all the three accused persons entitling this court to also arrive at an affirmative finding of possession of 1.74g of methamphetamine. • Another ingredient of both the charges is the mode of participation of the crime by all three accused persons which is stipulated in the charges to be in furtherance of common intention of all them. It is also fulfilled, as all the three accused persons were found together with the impugned drugs, in close proximity to it at the time of raid, arrest, search and seizure. • Meeting of their minds was so prevalent with regard to possession of the impugned drugs and it is inferred with ease from the prevailing circumstance and they were in complicit at all material times, also proven by their aggressive behavior and conduct with the policemen in order to free themselves from arrest and of course to flee the crime scene. • They were caught red-handed with the impugned drugs by SP5 and his team. • The scuffle and flight out of the third room to the living room and porch of the said house, with eventual physical restraint and arrest by force, syncs with subsection 15 (1) and (2) CPC. Thus, the action by the policemen to have arrested them in situ with the impugned drugs is in accordance with law. • The inference as to common intention is drawn premised on the totality of the circumstances alluded to above which establishes meeting of minds and fusion of ideas of all the three accused persons resulting in them having conscious possession of the impugned drugs at the material time of raid and arrest. It is definitely not based on their mere presence in front of the table on which the impugned drugs were found. (See: Joginder Singh AIR 1994 SC 461; Akloo Ahir (2010) Cri LJ 3822 (SC); Bhaba Nanda AIR 1977 SC 2252). [5] A myriad of other issues were also raised by the defence when cross-examining the prosecution witnesses. It was thus contended and stressed that, by virtue of those issues, a prima facie case was unsuccessfully proven by the prosecution. The issues are: Existence of two other individuals at the house [6] It was contended that there were two other individuals who were also arrested at the material time, who were one Vasanthan and another Premila. It was further contended that the said house was also accessible to the mother of the first and second accused as well as their friends. But the fact remains, both Vasanthan and Premila were not seen in the room with the impugned drugs. Premila who is the wife to the first accused was with her baby in the first room to the house and Vasanthan was elsewhere in the house and as a result of a motor vehicle accident, he was incapacitated, hence immobile. Their presence at the house does not matter a jot, as locus in quo of the crime was at the third room to the house. The impugned drugs were not found scattered all over the house but only on a table at the third room where the three accused persons were proximately in front of it. Moreover, there is also no evidence
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pursuant to the prosecution’s narrative, linking them to the impugned drugs. Therefore, albeit they were arrested together with the three accused persons but released and not charged with them. Judicial notice ought to be taken that to a home, there is bound to be visitors and guests including the mother to the first and second accused as well as mother in law to Premila and grandmother to the baby. Friends of the accused persons who come visiting them, cannot be taken willy-nilly to have knowledge of the incriminating substances found in the third room to the house. They are merely invitees. Thus, when the impugned drugs were found in close proximity with the three accused persons, they enjoy exclusive possession of it to the exclusion of all others who may be staying or living in the said house or had paid a visit to the house. (See: Leow Nghee Lim v Reg (1959) 22 MLJ 28). Moreover, it is in evidence that the first accused Maniarasan was the chief tenant of the house, as proven by the tenancy agreement P11 tendered in court via SP2. That documentary proof confirms that the first accused, Maniarasan was the tenant, although SP2, the landlady was not in a position to identify or recognize him so, but all the same she too did not deny that he was the tenant. So, the first accused being the chief tenant had exclusive enjoyment of the house and for all intents and purposes, he is the master of the house and he decides who comes in and do not come into the house. Likewise, he too decides who he wants to be with at the third room where the impugned drugs were found. Naturally, the first accused would not want to attribute criminal liability to his wife Premila and his brother Vasanthan. Existence of police report D1 lodged by mother to first accused [7] There is a police report in the form of D1 lodged by the mother to the first and second accused, stating that the second accused was not arrested at the house but at a field outside the house and then brought over to the house. This was denied by both SP4 and SP5 and they maintained, he was arrested inside the house. The investigation officer of the case SP6 had testified on the arrest of all the three accused persons. He had stated “Berdasarkan siasatan saya, ada yang ditangkap di dalam rumah dan ada yang ditangkap di ruang tamu”. The defence took issue on this testimony contending that SP6 contradicts SP4 and SP5 on the place of arrest of the second accused and also that SP6’s testimony in effect supports the police report D1 lodged by the mother to the first and second accused. This court opines, it is not a contradiction or inconsistency as the fact remains, as a result of the raid which took place, all the three accused persons had behaved aggressively leading to a vigorous and forceful scuffle continuing to the living room and the porch, as such they were not immediately arrested in the third room where the drugs were found but at the front of the house. On that score, the testimony of SP4 and SP5 prevails over the testimony of SP6 who was not present at the scene of crime when the raid and arrest took place. Moreover, SP6 did not testify to say that the second accused was arrested outside the precinct of the house but within the house, which includes the living room and car porch. To that extent, D1 lodged by the mother on arrest of the second accused is insignificant, as it was lodged later in time, seemingly to support the defence raised by the second accused, distancing himself from the impugned drugs. Moreover, she was not present at the said house, when the raid took place. She appeared in the episode much later. Seizure List P17 was not made in situ [8] Buildup by the defence was on the preparation of seizure list P17 by SP5, the raiding officer. He had told the court it was made in situ at the house, which is the place of raid, search and seizure. Whereas the investigation officer SP6 had testified, he saw SP5 preparing P17 at his office back at the police station. The hype up came about because when SP6 was re-examined, he had testified he saw SP5 preparing P17 at his office. Leaving it as it is, it is opined that the place where P17 was made is insignificant and irrelevant as opposed to its content which would be confirming of the raid, search and seizure. (See section 64 CPC). Surveying the testimony of SP5, he could have prepared P17 in situ as he had copies of it with him at the point of raid, which stood unrebutted after he was vehemently cross-examined. For that reason, the testimony of SP6 alluded to by the defence does not come across as an inconsistency or contradiction as the testimony of the author of P17 who is SP5 prevails and the exhibits tendered in court coincides with P17, which serves as a material piece of evidence. Moreover, the place at which P17 was prepared and completed does not prejudice the accused persons. Right to fair trial to all the three accused persons is guaranteed at all times, whereby both SP5 and SP6 were vehemently cross-examined and P17 was subject to extreme scrutiny during their cross-examination. This court too takes judicial notice of the fact that when P17 was prepared by SP5, various exigencies could have emerged arising from the raid and arrest. Keys to the house [9] Existence of keys to the house with SP5 was argued to be a mystery. SP5 had testified he did not seize any keys to the house, as during the raid, arrest, search and seizure, he and his team had entered the house without any keys as it was left opened. After leaving the house, they went away to obtain further information including identity card of one Vasanthan from his mother, who is also the mother of the first and second accused. But later after two days, when SP6 went to the house for investigation, he testified that SP5 had assisted him to open up the house by using keys, but as to where he got the keys from, SP6 seems to have no knowledge. He too did not receive those keys from SP5. Resulting from that, it was contended by the defence that in all probabilities, SP5 had another set of keys to the house, also linking it with some looming thoughts that some other individual may have given him the keys, with which he entered the said house for the raid. That is far-fetched as the fact of the matter is that all entries to the house was unlocked at that material time, thus no keys were required. That per se negates the doubt raised that the keys to the house may have been given to SP5 by some other individual. The revelation made, does not tantamount to be a doubt on the case of the prosecution, nor it fortifies the defence theory that the house in which the impugned drugs were found was accessible to many and not only to the three accused persons. The salient evidence which remained uncontroverted is that when SP5 and his team entered the house, he did not use any keys as the wooden door to the house was opened. Moreover, SP6’s going to the house later with the assistance of SP5 does not refute the fact that the impugned drugs which was seized were in fact found inside the third room on the table with the accused persons proximate to and merrily having a conversation. Therefore, existence of the keys with SP5, as testified by SP6 does not alter the narrative of prosecution as to where the impugned drugs were found at the material time of raid, and that it was found and seized in situ at the third room to the house. Accessibility to the room [10] It was contended by the defence that the room in which the impugned drugs were found is accessible not only to the three accused persons but to many others, including Vasanthan, Premila, mother to the first and second accused, friends of the accused persons and so forth. Further during cross-examination of the investigation officer SP6, he was asked if the third room in which the impugned drugs were found, also contain items necessary for kitchen use, thus any one who have access to the house could also have access to the room, to which SP6 had answered yes. The defence took issue on this, stating that the room in which the impugned drugs were found was accessible to all and sundry as it contained the necessaries for kitchen use. But once again, the fact remains, the impugned drugs at time of raid was found on a table with the three accused persons together so proximate to it and having a conversation, facing the table. Therefore, even if the room were to contain items for kitchen use, it would not negate the fact that the impugned drugs were found conspicuously on the table visible to the naked eye and easily spotted by the raiding team. Taking cue from the defence, it cannot be a case where a room would be designated specifically to keep incriminating items, as such items are always found together with other personal and household items which is for use by the owner or tenant of the said house. Thus, it is not strange for the third room to the house to have been doubled up as storage place for kitchen items for use by the first accused and his family. The third accused does not live in the said house [11] It was also contended by the defence that the third accused Tulasi Nathan is not a family member of the first and second accused but a relative and he does not live with them, thus again distancing himself from the impugned drugs. This was confirmed by SP6 in his investigation. But once again, the fact remains he was found in proximity to the impugned drugs at the material time of raid and arrest. So, his presence as a guest in the house holds no water as he was together with the first and second accused at the material time facing the table on top of which was the impugned drugs, placed conspicuously. He was found to be in conversation with the first and second accused, facing the impugned drugs which was unhidden and placed on the table. His behavior and conduct too was aggressive when confronted by SP5 during the raid, reflecting his state of mind at the material time vis possession of the impugned drugs. Non-calling of Premila and Vasanthan [12] An issue seriously taken up by the defence was that both Vasanthan and Premila who were present in the house but not in the third room, although arrested but later released were not called as witnesses for the prosecution. It is a fact they were not called, and the non-calling does not leave a gap in the case of the prosecution as Premila was with a baby and Vasanthan was incapacitated and immobile due to a motor vehicle accident. Thus, their presence at the scene of crime does not assist the narrative of the prosecution to prove its case against the three accused persons who were found together with the impugned drugs. Vasanthan was elsewhere at the said house and Premila was in the first room with her baby. [13] The law demands that, it is not for this court at the end of the case of prosecution to conjure or surmise on the probabilities of the case, specially so when in the present case, all three accused persons were found in close proximity with the impugned drugs and with their aggressive conduct at the material time of raid and arrest, demonstrating their state of mind, only points to one probability that they were in mens rea possession of the dangerous drugs which forms the subject matter of the charges against them in this court. Therefore, on the totality of the evidence proffered by the prosecution which forms its narrative, and on a maximum evaluation of it, this court at the end of the case of prosecution, had decided:
a
A prima facie case of trafficking in furtherance of common intention of all three accused persons is made out for the first charge for an offence of drug trafficking pursuant to section 39B (1) (a) DDA read together with section 34 PC, punishable under section 39B (2) DDA. In that direction, this court was able to make an affirmative finding of mens rea possession of the dangerous drug, thus triggering the presumption of drug trafficking by virtue of the weight of drugs involved, to wit 21.8 g comprising 9.1 g heroin and 12.7 g of monoacetylmorphines pursuant to section 37 (da) (iiia) DDA.
b
Likewise, a prima facie case of mens rea possession also in furtherance of common intention of all three accused persons is also made out on the second charge for an offence of possession of 1.74 g of methamphetamine pursuant to section 12(2) DDA punishable under section 39A (1) DDA read together with section 34 PC. [14] Pursuant to the above findings, all three accused persons were called upon to enter their defence to both the charges pursuant to section 180(3) CPC. As required under the law, the three options available to them were read and explained to them individually. Each of the accused persons had opted to testify as witness under oath, thus subject to cross-examination by the deputy public prosecutor (DPP). [15] It is settled law; the prosecution bears the burden of proof to prove the offences committed by the accused persons beyond reasonable doubt. On the other hand, the accused persons bear no burden of proof to prove their innocence, but to only raise a reasonable doubt on the case of prosecution or their guilt. [16] But for the offence of drug trafficking contained in the first charge, as the presumption of drug trafficking was invoked, the accused persons bears a higher burden on a balance of probabilities to displace the said presumption of trafficking. In order to earn an acquittal on the first charge, the accused persons bear a higher burden under the law, by adducing positive evidence to displace the presumption of trafficking, which is necessarily lower than the burden of proof borne by the prosecution to prove its case beyond reasonable doubt against all three accused persons. (See: Mohamad Radhi bin Yaakub v PP (1991) 3 MLJ 169 at page 171). [17] As for the offence contained in the second charge, which is for an offence of only mens rea possession of dangerous drug pursuant to section 12(2) DDA punishable under section 39A (1) DDA, the accused persons have to only raise a reasonable doubt on the case of prosecution or their guilt in order to obtain an acquittal. [18] Defence advanced by the accused persons in a nutshell is that: • At time of raid there were six persons at the said house, which includes Vasanthan and Premila as well as her child, an infant. • The third accused does not live at the said house but came to the house a day earlier with the sole purpose of borrowing the car belonging to the first accused in order to meet up an appointment with a doctor at Taiping Hospital. • Before the said raid and arrest, an individual by the name of “Kumar” had come into the house and used the washroom. He came by himself. Before entering the house, Kumar had a conversation at the car porch with the first, third accused and Vasanthan. • Kumar presumably left the house and at about 10.30 am on 31.7.2018. • The first and third accused as well as Vasanthan were arrested at the car porch to the house and Premila was arrested at the first room to the house. • The second accused was purportedly arrested at a field situated at Pengkalan Maju and brought into the house by policemen on a motorcycle. • It is alleged that SP5 entered the house alone and came out with a black plastic package which is not known to any of the accused persons. Thus, he may have planted the impugned drugs at the said room. • Then they were all taken to in a car to the mother’s house at Taman Kaya, to take the identity card of the arrestee Vasanthan from his mother. • The mother was called as a defence witness SD4. • It is alleged that the three accused persons were beaten up during the arrest and when remanded in custody. [19] After having heard the testimony of each of the accused persons who had testified on oath as witness SD1, SD2 and SD3 followed by another witness SD4, mother to the first and second accused, it is clear and apparent, the presumption of trafficking had been displaced by them, but they have been unable to raise a reasonable doubt on the mens rea possession of the impugned drugs also forming subject matter of the first charge. [20] They have been successful in displacing the presumption by adducing evidence to this court that there was one real individual by the name of Kumar, who in all probability is the real trafficker of the dangerous drugs. Sufficient details of his existence and whereabout was given to the investigation officer of the case and also evidenced in court. Thus, an Alcontra Notice was given to the prosecution on his existence and role in their case which was unrebutted by the prosecution until the end of case of defence, albeit all the three accused persons and their witness SD4 were vehemently cross-examined. Thus, existence of Kumar is proven to be real during the case of the defence. (See: Alcontra s/o Ambross Anthony v PP
1996
1 MLJ 209. [21] However, it is trite law, trafficking of dangerous drugs is preceded by mens rea possession of the impugned drugs, to wit possession of the dangerous drugs with knowledge of its existence and nature as dangerous drugs. It was proven via credible evidence free from reasonable doubt by the prosecution on the following terms: • The impugned drugs were in fact found at the third room to the house at no. 63, Lorong Pengkalan Maju 2, Taman Pengkalan Maju, Simpang, Taiping. • At point of search and seizure of the impugned drugs, it was found on a table at the third back room to the said house in the presence of all three accused persons. • The three accused persons were in close proximity to the said drugs. • Their conduct at the material time of raid, search and seizure which remained uncontroverted, was telling of their state of mind, as they had attempted to flee the scene, leading to a scuffle with the raiding officer SP5. To reiterate, such aggressive conduct bears testimony to their criminal culpability, as it serves to be a material piece of evidence and a relevant fact pursuant to section 8 (2) EA, pointing towards the salient fact that they would not behave in that vigorous manner if they were not caught with the incriminating items. They were in fact caught red-handed with the impugned drugs found on the table in front of them. • Strangely, it was alleged SP5 came out of the house with the plastic bag. Thus, for him to have planted the said drugs at the said room in the house is unintelligible. • Premised on the veracity of the police report D1 lodged by SD4, which was investigated into by SP6, it was unearthed that the second accused, also son to SD4 was in fact arrested together with the first and third accused persons and not at the field as alleged to be by SD4 in her police report. The defence had argued that the report D1 prevailed as the investigation officer SP6 had wavered when he testified on the place of arrest of the second accused. He is said to have contradicted and the contradiction referred to was that the arrest was outside the room. But as the narrative of the prosecution unfolds, upon raid on the third room, all the three accused persons had attempted to flee and they all had ran to the front part of the house, following a grave and vigorous scuffle, finally leading to the arrest of all three of them. It simply does not mean that the second accused was arrested at another place, as alleged to be by SD4 in her police report D1. To that extent, her version in court purportedly supported by the police report made by her could be summed up to have been made with the sole purpose of exonerating her son from criminal liability and nothing more. • Although other individuals by the name of Vasanthan and Premila were present at the premises at the material time of raid, arrest, search and seizure, it is borne out by evidence that Vasanthan was incapacitated after a motor vehicle accident and was rendered immobile and Premila who is the wife to the first accused was found in another room with her baby. Vasanthan’s incapacity and immobility is supported by documentary proof in the form of medical reports; D4, D5 and D6 tendered by his own mother, SD4. Premila’s baby was handed over to SD4, thus confirming the fact that Premila was in fact found in another room with her baby far away from the impugned drugs. It is not hidden by the prosecution that those two individuals exist and were present at the scene of the crime but not together or proximate to the impugned drugs together with the three accused persons, for them to be latched with any criminal liability. Even with their presence at the said house during the time of raid, search and seizure, it was proven by the prosecution without any reasonable doubt that it was only the three accused persons who were found in possession of the impugned drugs and not Vasanthan, Premila, SD4 or anyone else. • Witness for the defence SD4 who is mother to the first and second accused as well as Vasanthan, had offered evidence to support the defence. But she was not present at the scene of crime when the raid, arrest, search and seizure took place. It goes to show she does not live at the said house. But she had stressed in court her son, the second accused was arrested at a field nearby and then brought to the house. She added on to say, she and her husband had been around at the field to witness the arrest. In the first place, her evidence seems bizarre, as though she had the sixth sense that the son was going to be arrested and she had gone to the field. Secondly, she had claimed her husband to have suffered a stroke and yet able to ferry her to the said field but when pushed to tell the truth during cross-examination, she had merely testified her husband was healthy enough to ferry her around. As a trial judge, I am in a position to observe, analyse and comment on demeanour of a witness. Although demeanour is not the touchstone of credibility of a witness, but it lends weight to determine a witness's credibility. As for SD4, she comes across as a witness who had rehearsed a script in order to testify with the ulterior motive of distancing her sons, especially the second accused and their relative the third accused from the arrest that had taken place and the impugned drugs found with them at point of raid and arrest. She had gone on to testify that she was daring enough to lodge a police report D1 on the arrest of her son, the second accused and that it has to be true, as otherwise she would have been investigated for lodging a false report. One has to be mindful of the fact that, the investigation officer of the case SP6, had to move on with the investigation of the case and not to be belaboured by such reports like D1 which does not take the case any further, as it was best in the order of events for him to rely on the narration of SP5 the raiding officer and his team, including SP4. They are in a more credible position to inform SP6 on the arrest of the second accused and not SD4 who was on equal position with SP6, whom were absent at the locus in quo. [22] Pursuant to section 182A (1) CPC, at the conclusion of trial, this court is duty bound to consider all the evidence adduced before it and decide whether the prosecution has proved its case beyond reasonable doubt. Premised on the totality of the evidence led by the prosecution, juxtaposed with the testimony of the accused persons and their witness SD4, a case of mens rea possession has been proven beyond reasonable doubt, pursuant to section 182A (2) CPC against all the three accused persons, forming subject matter of the first charge as condition precedent to trafficking of dangerous drug and the second charge which is only for possession of dangerous drug and find them guilty of the same. [23] In the upshot, for the first charge, all three accused persons were found guilty of a lesser offence of possession of the said dangerous drugs, pursuant to section 12(2) DDA punishable under section 39A
2
DDA. This is made possible by virtue of section 158 CPC read together with 169 (2) CPC which renders the following:
2
When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.
Preamble
Pursuant to section 158 (2) CPC, the alteration of the charge for a lesser offence was explained to the accused in the presence of their counsel. As for the second charge for an offence of possession of dangerous drugs as originally charged, they were also found guilty for an offence punishable under section 39A (1) DDA 1952. Hence, all the three accused persons are convicted for the said offences and sentenced accordingly after having heard their plea in mitigation and submission on aggravating factors by the DPP. Notes on the plea in mitigation and the sentence meted out, in its original form are the following: Mitigation 1st accused 29 tahun. Pekerja kedai runcit, Semasa tangkapan umur 18 tahun. Anak baru lahir, sekarang umur 4 tahun. Isteri bekerja untuk menanggung keluarga. Pesalah pertama. 2nd accused 28 tahun Penjual cendol, Belum berkahwin, Tinggal bersama dengan ibu dan bapa. Bapa mendapat strok dan tidak dapat membantu keluarga. Ibu menanggung keluarga. Pesalah pertama. 3rd accused 37 tahun Pekerja kilang kelapa sawit, Belum berkahwin dan menanggung ibunya yang berumur 58 tahun – mempunyai penyakit kencing manis dan darah tinggi. Pesalah pertama. Dadah – 21.8 g bagi pertuduhan pertama. Jumlah yang kecil, ketiga-tiga tertuduh berada dalam tahanan sejak 31.7.2018. Pertuduhan kedua – 1.74 g methamphetamine – jumlah yang kecil. Fakta seperti yang diputuskan oleh mahkamah. Mohon hukuman dari tarikh tangkap. Mohon sebatan yang minima. Memandangkan dadah yang dijumpai ditempat yang sama – mohon hukuman pemenjaraan serentak, tetapi sebatan – berturutan. TPR Kes telah selesai. Pertuduhan pertama (P1) – hukuman minima 5 tahun penjara, 10 kali sebatan. Hukuman maksima penjara seumur hidup; Pertuduhan kedua (P2) – hukuman minima 2 tahun; 3 kali sebatan Maksima – hukuman 5 tahun; 9 kali sebatan. Berat dadah – P1 – berat adalah 21.8 g – (heroin 9.1 gram; monoacetylmorphine 12.7 gram) 4 kali ganda berat dari had statutori dibawah seksyen 39A (2) (d). P2 – berat dadah 1.74 g methamphetamine. Tidak dinafikan – mereka pesalah pertama. Bukan merupakan faktor peringanan hukuman. Mohon hukuman yang setimpal. Berdasarkan nas-nas – mohon hukuman antara 14 hingga 18 tahun bagi pertuduhan pertama. Bagi pertuduhan kedua – mohon hukuman 2 hingga 3 tahun. Mahkamah mempunyai budibicara samada untuk kenakan hukuman secara serentak atau berasingan. Faktor yang boleh diambil kira – tarikh; tempat kejadian; jenis kesalahan. DC Pertuduhan pertama – budibicara harus mengambil kira mereka sebagai pesalah pertama. Hukuman penjara – antara 7 hingga 8 tahun. Masa yang telah berlalu – adalah diluar kawalan. Pertuduhan kedua – asalkan hukuman pemenjaraan berjalan serentak. Keputusan Mahkamah berkenaan Hukuman Setelah mengambil kira faktor-faktor peringanan hukuman yang telah dihujahkan serta faktor pemberatan hukuman yang telah dikemukakan oleh TPR, mahkamah juga akan mengambil kira kepentingan awam serta keseriusan kesalahan yang telah dilakukan oleh ketiga-tiga orang tertuduh. Berpandukan itu, Mahkamah memerintahkan hukuman-hukuman seperti berikut: Untuk pertuduhan pertama bagi kesalahan dibawah seksyen 12 (2) ADB 1952 yang boleh dihukum dibawah seksyen 39A (2) ADB 1952 • Hukuman penjara selama 12 tahun untuk tiap-tiap seorang tertuduh. • Hukuman tersebut untuk berkuatkuasa mulai tarikh tangkap pada 31.7.2018. • Hukuman sebatan – 10 kali sebatan yang merupakan jumlah sebatan minima yang ditetapkan dibawah seksyen 39A (2) ADB 1952. Untuk pertuduhan kedua bagi kesalahan dibawah seksyen 12 (2) ADB 1952 yang boleh dihukum dibawah seksyen 39 A (1) ADB 1952. • Hukuman penjara selama 4 tahun penjara diperintahkan, • Juga untuk berkuatkuasa mulai dari tarikh tangkap pada 31.7.2018 • Hukuman sebatan sebanyak 3 kali yang juga merupakan yang minima dibawah undang-undang.. Juga diperintahkan, hukuman pemenjaraan bagi kesalahan pertama dan kedua akan berkuatkuasa secara serentak, bermakna setiap orang tertuduh akan menjalani hukuman pemenjaraan selama 12 tahun. Hukuman sebatan hanya boleh berkuatkuasa secara berasingan*, bermakna setiap orang tertuduh akan disebat sebanyak 13 kali sebatan. *See section 288(1) and (5) CPC as well as the case of PP v Peter Ting Chiong King
1987
1 MLJ 42. Dated 19 February 2024 SGD Muniandy Kannyappan Judge High Court. DPP Azrul Faidz Abdul Razak and DPP Sariza Binti Ismail, Deputy Public Prosecutors of the Attorney General’s Chambers for the prosecution. Charan Singh and Noorfarihah Binti Arshad of Messrs. Nurul & Charan, for all three accused persons.
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