[Pendakwa Raya] v Saik Siew Chye (WA-45A-33-02/2022)

The Accused was charged for trafficking dangerous drugs on two (2) counts under the Dangerous Drugs Act 1952 (“DDA”) as envisanged below:

At the conclusion of the trial, this Court had acquitted and discharged him from both charges.

Dissatisfied, the Public Prosecutor had filed an appeal to the Court of Appeal.

Herewith are the Grounds of Judgement for the decision.

The fact of the case is quite straight forward. Acting on information received, on 15.1.2021, at 15:10 p.m., ASP Mohd Idzhar bin Mohamed (SP3) with his team had stopped a Proton Exora Car, with the registration number WXX 5191 driven by the Accused. It was stopped at the main entrance of the car park of the Capsquare Residences.

The Accused attempted to flee as the said car had moved slightly forward at that material time. Consequently, SP3 had knocked the windscreen of the said car causing the top left side of the same to crack.

SP3 then introduced himself as a Police Officer. In the midst of the team affecting arrest on the Accused, the Accused put up a struggle by pushing away the hands of these Police Officers who were trying to have him handcuffed at that material time.

After giving caution under Section 37B (1) (b) of the Act, SP3 then conducted a search upon the said car and discovered the following items behind the passenger seats of the said car:

five (5) blue colour cooler boxes (i.e., P15 till P19) that contained one hundred (100) aluminium packages of powdered and granular substances (which upon subsequent analysis conducted by SP4, was found to be 77,941.3 grammes of Ketamine, being the subject matter of the First Charge); and

three (3) polystyrene boxes (i.e., P20 till P22) that contained one hundred and fifty-four (154) green colour plastic wrappings of compact granular substances (which upon subsequent analysis conducted by SP4, was found to be 32,656 grammes of Heroin and 935.4 grammes of Monoacetylmorphines, being the subject matter of the Second Charge). [9] The Accused looked nervous when the dangerous drugs were discovered in those boxes. SP3 then seized all of the aforesaid items and the said car together with its key and remote control. SP3 then brought the Accused and the seized items to the office of the Narcotic Criminal Investigation Department of IPD, Dang Wangi. [10] After he had completed all the documentations, SP3 then handed over all the documentations, seized drugs and the Accused to SP5 who was the Investigating Officer of this case. [11] On 21.10.2021, SP5 sent all the seized drugs to the Chemist for analysis. On analysis, the Chemist, SP4 found the drugs to be:

77,941.3 grammes Ketamin;

(ii) 32,656 grammes Heroin; and

(iii)

935.4 grammes Monoacetylmorphines. The Accused’s version put during Prosecution’s case [12] In essence, the Accused’s version suggested during the Prosecution’s case was that the car was rented earlier on 12.1.2021 by one Alex, who asked the Accused to collect it from SP2 without any documentation on behalf of Alex. The Accused then handed the car at night to Alex. Alex did inform the Accused that the said rented car is to be used to transport disinfectant powder from Kuala Lumpur to Chng Ewe Hin (“Chng”) (who was later arrested together with the Accused and classified as B5 by the Investigating Officer) and Hor Wei Yee (“Hor”) (who was classified as B3 by the Investigating Officer) at Sungai Petani, Kedah. According to the Accused, both of them were his business partners. [13] On 15.1.2021 the Accused, upon Alex’s request has collected the said car (Proton Exora) at around 3:00 p.m. from Alex at “Chamber 3 Restaurant”, which was about 500 metres away from the Accused’s Residence, i.e. the Capsquare Residences. The car was then laden with blue coloured cooler and polystyrene boxes (the drug exhibits). [14] The Accused who already knew Alex for 2 years believed Alex upon being told that the content of the boxes in the car was disinfectant powder and to be transported by Alex to Alex’s business partners i.e Hor and Chng. To satisfiy himself, the Accused had indeed opened one of the blue coloured cooler boxes to feel the texture and was satisfied it was disinfectant powder. [15] Convinced with Alex’s request to keep the car for a few days in order for Alex to process and obtain permit to cross districts/borders to Sungai Petani as MCO had been imposed at that material time, he agreed to take the car home and keep the car for 2 to 3 days for Alex as the location between IPD Dang Wangi where Alex would be applying for his permit was nearby to the Accused’s rented condo in Capsquare Residences. [16] In essence the Accused’s version was that the drugs seized was not his but it was Alex’s. He also did not have knowledge of the same because of the manner they were stored in the 2 types of containers. It was the Defence’s version that during the arrest, the Accused had told SP3 about the ownership of the drugs by Alex and his non-knowledge about the same. The Accused also did mention regarding Alex and his role to SP5 (Investigating Officer) but when he narrated this to SP5, he was beaten up. (See Exhibit D34 - Medical Report from attending Dr. HKL) C. THE CHARGES [17] Pertuduhan Pertama (“1st Charge”) Bahawa kamu pada 15.1.2021 jam lebih kurang 3.10 petang bertempat di lorong pintu masuk utama, tempat letak kereta The Capsquare Residences, Persiaran Capsquare dalam daerah Dang Wangi Wilayah Persekutuan Kuala Lumpur telah didapati mengedar dadah berbahaya iaitu 77,941.3 gram ketamine. Oleh yang demikian kamu telah melakukan kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama. [18] Pertuduhan Kedua (“2nd Charge”) Bahawa kamu pada 15.1.2021 jam lebih kurang 3.10 petang bertempat di lorong pintu masuk utama, tempat letak kereta The Capsquare Residences, Persiaran Capsquare dalam daerah Dang Wangi Wilayah Persekutuan Kuala Lumpur telah didapati mengedar dadah berbahaya iaitu 32,656 gram Heroin dan 935.4 gram Monoacetylmorphines. Oleh yang demikian kamu telah melakukan kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama. D. ANALYSIS AND FINDING OF THIS COURT At Prosecution’s Stage [19] To prove a prima facie case, the Prosecution has to prove the following ingredients:

The Accused has custody and control and knowledge of the drugs in his possession (mens rea possession).

The drugs are dangerous drugs as listed in the Act with the specified weight.

For the Second charge, based on the weight, the Accused was presumed to be trafficking the dangerous drugs (the presumption under Section 37 (da) was triggered). [20] In Chan Pean Leon v. Public Prosecutor [1956] CLJU 17; [1956] 1 LNS 17, Thompson J went on to state as follows: “Possession” itself as regards the criminal law is described as follows in Stephen's Digest (9th Ed), p 304): “A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.” [21] It is the duty of the Prosecution to prove that the Accused had custody or control and knowledge of the drugs. Direct evidence on knowledge is very difficult to come by. Invariably the Prosecution has to rely on circumstantial evidence like the conduct of the Accused looking worried, panicked, trying to flee/abscond etc, (see Parlan Bin Dadeh [2008] 6 MLJ 19 (FC). Others include deliberate concealment to avoid detection from the authorities eg. suitcase with false bottom, drugs concealed inside “MILO” packaging etc. Put it in another way, it is trite law that proof of knowledge is very often a matter of inference from the surrounding circumstances, like in this case whereby the Accused looked nervous and attempted to flee. [22] As the drugs were found in a car driven by the Accused and upon maximum evaluation, and based on the various renowned authorities, such as Balachandran v. PP [2005] 2 MLJ, Looi Kow Chai & Anor v. PP [2003] and PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457, this Court has found that the Prosecution had successfully proved a prima facie case and the defence was ordered to be called. Defence’s Case [23] The Accused gave his evidence under oath. As already laid down during the Prosecution’s stage, the essence of his defence was that the drugs in question were not his but Alex’s and that at the time he was arrested the drugs were not in his possession (within the meaning of the Act) and that he has no knowledge at all of the same being in the rented car he was driving. [24] Against the Prosecution’s challenge that the Accused’s defence was a bare denial, this Court has evaluated the whole evidence - both the Prosecution’s and the Defence’s and this Court, after considering the totality of the evidence ruled as follows:

Whether the Accused rented the car? [25] In line with the entrenched principle of law that an Accused’s duty is just to raise a reasonable doubt on the Prosecution’s case (whilst rebutting any form of presumption raised against him), this Court found that the Defence’s story is very probable and plausible and that Alex is not a fictitious character as SP2 confirmed that Alex contacted him inquiring about availability of any car for rental. From the totality of the evidence, this Court also believed that it was Alex who had rented the car, and that the Accused took the car from SP2 on Alex’s behalf. [26] This was because the Accused did not himself sign any documents pertaining to the renting of the said car from SP2. Further, SP2 had never photocopied any Identification Card (IC) of the Accused nor collected any deposit from the Accused for the renting of the said car. [27] Further, it was also in evidence that it was Alex who had negotiated with SP2 as to the rental amount and that SP2 does not know the Accused prior to 12.1.2021. [28] Hence this Court, in giving the benefit of the doubt to the Accused ruled that, on 12.1.2021, SP2 had in effect handed over the said rented car together with its key and its remote control to the Accused. The Accused later handed the car to Alex. On 15.1.2021 the Accused, on Alex’s request had collected the car from Alex again, which was already laden with the boxes aforesaid for him to keep temporarily at his condo’s car park. [29] Further, the Accused’s version that when he told the Police the moment he was arrested, about Alex’s link to the drugs, he was beaten up by the Police further weakened the Prosecution’s case as it was indeed in evidence that he suffered injuries whilst in custody (see the Medical Report – D34).

Whether the Accused has any knowledge of the drugs in the cooler and polystyrene boxes and whether willful blindness doctrine does apply [30] The Accused testified that he was convinced with Alex’s explaination that the contents of the boxes are packages of disinfectant powder. He put his hands against the aluminium packages in one of the cooler boxes. He felt that the texture of the contents indeed felt like disinfectant powder as claimed by Alex. Alex had also convinced the Accused that the other boxes contained the same items, i.e disinfectant powder. [31] Looking at the evidence in totality, this Court opined that eventhough the situation did not give rise to any suspicion on the part of the Accused, but the Accused had taken steps to inquire regarding the contents of the cooler boxes and the polystyrene boxes, and this investigative steps undertaken by the Accused is very significant for his defence as this negates the application of the doctrine of willful blindness against him. [32] The Federal Court in Maria Elvira Pinto Exposto v. PP [ 2020] 5 CLJ 1 at page 17, had ruled the following with regards to the doctrine of willful blindness: [41] The law only requires the accused to inspect or enquire when reasonable cause for obvious suspicion arises, and if the accused takes no step or effort to dispel this lingering suspicion then he or she is presumed to have known and accepted the risk of that suspicious endeavour. The facts of this case do not warrant the application of the doctrine of wilful blindness to the appellant. The appellant could not be said to have shut her eyes to the obvious when there was nothing or even remotely suspicious to begin with. [42] In Tan Kiam Peng v. PP [2008] 1 SLR 1 it was held: ... wilful blindness was treated as the legal equivalent of actual knowledge. To establish wilful blindness, there had to be the appropriate level of suspicion that led to a refusal to investigate further. If controlled drugs were slipped into a respondent person’s bag without his or her knowledge, no offence under the Act would have been committed. On the other hand, if a respondent knew that he or she was carrying controlled drugs, merely inquiring as to the nature of the drugs might not be sufficient. If the respondent chose to assume such a large risk by trafficking drugs without establishing the true nature of the drugs he or she was carrying, this was wilful blindness. [33] See also the case of Sansregret v. The Queen [1985] 1 SCR 570, Supreme Court of Canada. [34] Based on the authority of Maria Elvira Pinto Exposto (supra), the Accused has proven that eventhough he has no reason to suspect anthing illegal yet he has taken extra steps to investigate further by pressing his hand on the content of one of the aluminium packages in the cooler box and upon investigation, was satisfied that it was indeed disinfectant powder as claimed by Alex. [35] As to whether his conduct in purportedly trying to flee, looked nervous or putting up a struggle can infer knowledge, this Court ruled that in the circumstances of the case, by looking at the CCTV recording (D27) this Court is inclined to discount it. Further, it is not uncommon for any person to be nervous after being accousted with plain clothes men, all training their guns at him. [36] In the case of Reza Mohd Shah Ahmad Shah v. PP [2005] 4 CLJ 581 where Abdul Kadir Sulaiman JCA (as he then was) held as follows: “But in our view, just because the appellant took flight and threw the plastic bag containing dangerous drug does not point to one and only conclusion that he knew what he was carrying was the dangerous drug, cannabis. In the circumstances, other inferences can be made such as that he did so because he may be carrying any other prohibited goods other than the cannabis or that he was panicky and therefore chose to run away and throw out the bag he was carrying more so, in this case, when the police confronted him were not in uniform.” [37] Hence, this Court ruled that the Accused has no knowledge about the drugs and should be acquitted and discharged.

Whether the failure to call Alex to testify has greatly undermined the Prosecution’s case [38] Looking at the evidence in totality, this Court ruled not only the Prosecution has a duty to call Alex to close the gap or to unfold the actual narratives, the circumstances of the case here further warranted the Prosecution to call Alex as rebuttal evidence or to offer explaination as to the actual role of Alex in light of the Accused’s testimony. This the Prosecution has failed. Such failure is fatal and the benefit of such failure by the Prosecution be given to the Accused. Further an adverse inference be invoked against the Prosecution under Section 114 (g) of the Evidence Act.

Poor and Incomplete Investigation [39] As alluded earlier, Alex should be called to testify, if not for the insufficient efforts by the Investigating Officer, SP5. SP5 had merely called Alex’s phone number that was provided by SP2 and no other diligent efforts were made for the purpose of tracing and investigating Alex after the call was unanswered. This Court observed that under cross examination by the Defence, she (SP5) has admitted that SP2 did mention to her the existence of Alex. SP5 also admitted that she was fully aware that there was no document of whatsoever nature which may suggest that the Accused was indeed the hirer of the said rental car. [40] In the case of Rahmani Ali Mohamad v. PP [2014] 7 CLJ 405, the Court said “The appellant cannot be panalised for lack of ingenuity, negligence or inadvertence on the part of the investigator depriving him of the time honoured benefit of doubt”. Further such failure to trace and investigate Alex had hampered the Accused’s defence thus contributing to the denial of a fair trail, as decided in PP v. Tan Teng Siong [2021] 1 LNS 2159.

Involvement of others – No exclusivity [41] This Court also observed that the Accused had also alerted of the involvements of several others (apart from Alex) who were arrested and charged together with him namely Royce, Abdul, Chng (B5), Ong and Hor (B3) in the Magistrate’s Court for the same offence read together with Section 34 of the Penal Code (Common Intention). Evidently, this showed that they were involved with these same drugs. This was more profound as the charge sheet showed those witnesses were listed as B2 to B6 (Accused 2 to Accused 6) and the Accused here as B1 (see D11). [42] Hence an impression had already being cast that it might will be that the Accused had no exclusive possession of the drugs in the car as the same might be in the possession of the 5 witnesses above. It is trite that it is the duty of the Prosecution and not the defence to discount the possibility of other people having access to those drugs. (See Abdullah Zawawi Yusoff v. PR [1993] 4 CLJ 1). Such failure has created a doubt and the benefit of such doubt should be given to the Accused. [43] Further, no explaination was given by the Prosecution/DPP as to why the Public Prosecutor did not issue consent to charge those witnesses together with the Accused here for trafficking the same drugs in this Court. [44] Further in this case, the Accused was arrested following a tip off i.e information received. It is trite that the Court should be wary of convicting an Accused person based on information received, as there is a possibility of the drugs being planted to implicate the Accused (see Ibrahim Mohamad & Anor [2011] 4 CLJ 113). [45] It is also trite law that all the short comings/infirmities caused by the Prosecution, the benefit of such must be given to the Accused.

Failure to offer material witnesses to the Defence and/or failure to offer their statements to the Defence [46] This Court recalled that at the conclusion of the Prosecution’s case, the Defence had requested those material witness (above) to be offered. The Prosecution rejected the request and also did not provide their recorded statements inspite of SP5 (IO) conceeding that their statements were taken. This further undermined the Prosecution’s case as it has given rise to “suppression of evidence” on the part of the Prosecution and an adverse inference should be invoked against the Prosecution. D. CONCLUSION [47] As propounded in Mat v. PP [1963] 1 LNS 82, if the Court accept the Accused’s explaination, the Court must acquit him. But even if the Court does not believe the Accused’s explaination but that explaination has raised a reasonable doubt in the Judge’s mind, the Accused is entitled to an acquittal. Taking the evidence in totality, this Court is satisfied that the Accused has successfully raised a reasonable doubt and rebutted the presumption of trafficking. Further, it is not safe to convict him, with many doubts lingering in the Court’s mind. [48] In the upshot, the Accused is acquitted and discharged. Dated: 4th April 2024 (DATO’ AHMAD BIN BACHE) Judge Criminal High Court 1 Kuala Lumpur Parties: Public Prosecutor/ Encik Mohd Isa bin Mohamed Appellant: Pendakwa Raya Kamar Peguam Negara Bahagian Perbicaraan dan Rayuan Aras 5, No. 45, Lot 4G7, Presint 4 Persiaran Perdana 62100 PUTRAJAYA Accused’s/Respondent’s: Encik Kee Wei Lon Solicitors: (Encik Low Wei Loke bersamanya) TETUAN LOW No. 13B (2nd Floor) Jalan Helang 13 Bandar Puchong Jaya 47300 Puchong SELANGOR