[Pendakwa Raya] v 1. ) Radhakrishnan Syam (NA-45A-5-05/2019)

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ABDUL KALAM SAJEEV SALIM SABEER (Didengar bersama) PERBICARAAN JENAYAH NO: NA45-3-05/2019

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ABDUL KALAM SAJEEV SALIM SABEER GROUNDS OF JUDGMENT

The five accused persons in this case were apprehended in connection with a suspected illegal methamphetamine laboratory located deep in an oil palm plantation located near the town of Rantau. The five accused persons were Indian nationals. PP v Radhakrishnan Syam & Ors 2 2. They were charged with with two counts of drug trafficking under section 39B of the Dangerous Drugs Act 1952 and one count of possession of a substance regulated under the Poisons Act 1952. BACKGROUND FACTS The charges 3. The accused persons stood accused of trafficking 1,510.17 grams of methamphetamine and 2,789.56 grams of ketamine. They were also charged with possession of pseudoephedrine under section 9(1) of the Poisons Act 1952. The three charges against the accused persons read as follows: The methamphetamine charge "Bahawa kamu bersama-sama pada 3 Ogos 2018 jam lebih kurang 6.30 petang, bertempat di rumah Lot 3619 Kawasan Takau Mukim Linggi, di dalam daerah Port Dickson, di dalam negeri, Negeri Sembilan Darul Khusus, telah didapati mengedar dadah berbahaya jenis "Methamphetamine" berat bersih 1510.17 gram. Dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(C) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan" The ketamine charge "Bahawa kamu bersama-sama pada 3 Ogos 2018 jam lebih kurang 6.30 petang, bertempat di rumah Lot 3619 Kawasan Takau Mukim Linggi, di dalam daerah Port Dickson, di dalam negeri, Negeri Sembilan Darul Khusus, telah didapati mengedar dadah berbahaya jenis "Ketamine" berat bersih 2789.56 gram. Dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(C) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan" The pseudoephedrine charge "Bahawa kamu bersama-sama pada 3 Ogos 2018 jam lebih kurang 6.30 petang, bertempat di rumah Lot 3619 Kawasan Takau Mukim Linggi, di dalam daerah Port Dickson, di dalam negeri, Negeri Sembilan Darul Khusus, telah ada dalam milikan kamu bersama-sama bahan yang mengandungi "Pseudoephedrine" dengan berat bersih 996.2 gram. Dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 9(1) Aka Racun 1952 dan boleh dihukum di bawah Seksyen 32(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan" The raid 4. A police raid was conducted on 3 August 2018 at about 6.20pm at the Seri Mariamman temple located on Jalan Rantau – Linggi, based on intelligence received by the police. The first accused, Radhakrishnan Syam, was PP v Radhakrishnan Syam & Ors 3 apprehended together with one Rajan A/L Gaju at the Seri Mariamman temple, when they were filling a water container carried on a Mazda pick-up truck.

Rajan and Radhakrishnan led the police to a second location, which was located deep in an oil palm plantation, and which was accessible through a lane located at the side of the temple. This second location was fenced off with zinc sheets.

When police raided the second site, they apprehended the second to fifth accused persons within the fenced area. Inside the fencing were a cement single-storey building and a wooden goat shed on stilts.

It was the prosecution’s case that the single-storey building was a laboratory for manufacturing drugs. Various apparatus were recovered from the building, including a weighing scale, a plastic bag sealer, heating devices and plastic and glass containers of various description. Also recovered were fluids in containers (including bottles marked ethanol) as well as substances in crystalline and powder form (including a bag marked caustic soda flake).

Outside the building were located two large electricity generators. DNA material recovered 9. The police recovered a toothbrush that was wedged on the outside of a window frame of the building. Five other toothbrushes and a metal band believed to be tongue-scraper were recovered from a blue plastic bag found hanging on a window frame on the inside of the building. Also recovered from inside the building were two hairbrushes. DNA testing of these items of grooming revealed the presence of DNA from the first, third, fourth and fifth accused. The analysis of the prohibited substances 10. Some of the material recovered was sent for analysis to the Department of Chemistry. The government chemist in this case, Dr Saravana Kumar Jayaram (PW4), testified that his analysis revealed the existence of the following substances: PP v Radhakrishnan Syam & Ors 4 Police Marking Exhibit numbers Drug/substance type Net weight (grammes) Original container Chemist dept container

SA5(b) P311b

SA2a P15

SA19 P17

SA20 P18

SA21 P19

SA22 P20

SA23 P21

S2 P33 P39 Methamphetamine 439.1

S4 P34 P40 Methamphetamine 295.9

S7 P35 P41 Methamphetamine 69.87

S3 P36 P42 Ketamine 794.5

S5 P37 P43 Ketamine 337.8

S6 P38 P44 Ketamine 235.6

Both methamphetamine and ketamine are prescribed as “dangerous drugs” in Part III of the First Schedule to the Dangerous Drugs Act 1952. Pseudoephedrine is prescribed in the First Schedule to the Poisons Act 1952. The tenancy 12. Subsequent police investigation showed that the land on which the single-storey building and goat shed were located belonged to one Mr Geva Krishnan (PW3), who at trial testified that he had let out the property in question to one Prema B Khaan Balasingam. Prema M Khaan Balasingam was never called to testify. The accused persons 13. The accused persons were all Indian nationals from a village called Kollam in the state of Kerala, India.

Sections 39B(1) and (2) of the Dangerous Drugs Act 1952 read as follows: PP v Radhakrishnan Syam & Ors 5 Trafficking in dangerous drug

No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—

traffic in a dangerous drug;

offer to traffic in a dangerous drug; or

do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than fifteen strokes.

The term “trafficking” is defined in section 2 of the Act in the following manner: "trafficking" includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;

In the charge, the accused persons were expressed to be charged under section 39B(1)(C). There is, of course, no section 39B(1)(C)—with the upper case “C”. The correct reference should be to section 39B(1)(c). There was no reason to suppose that the charge was defective, as the accused persons were under no misconception regarding the case that was mounted against them, and indeed, the point had not been raised by defence counsel at all, suggesting that they too did not consider the error to be one that prejudiced the accused persons in any way.

The offence under subsection (c) relates to acts that are preparatory to the act of trafficking. However, the expression “trafficking” itself is widely defined. It may thus be observed that some preparatory acts may themselves be trafficking for the purposes of the definition in section 2. For instance, the act of manufacturing may be preparatory to a subsequent act of selling dangerous drugs, but manufacturing itself falls within the definition of trafficking.

The prosecution may, in certain circumstances, rely on the presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952. Where PP v Radhakrishnan Syam & Ors 6 reliance is not placed on the presumption of trafficking, then positive evidence must be led in order to prove actual trafficking.

To do so, the prosecution must still prove possession even if what is being alleged is some other act of trafficking, such as manufacturing or storing dangerous drugs. In the recent Federal Court case of Chan Wei Loon v PP [2021] 6 CLJ 623, it was held: [P]ossession is still an essential ingredient in a case involving manufacturing of dangerous drugs and thus it needs to be proven before the trafficking definition in s. 2 of the DDA 1952 can be invoked. The general rule in our view is, for a person to be trafficking in dangerous drugs, he must have the drugs in his possession. Even though the DDA 1952 does not explicitly define "possession", earlier decisions of our courts have established that possession must be with mens rea, that the person must be aware of his possession, that he has the exclusive power to deal with the drugs. … [78] Generally, we are of the view that possession is an essential ingredient to be proven for manufacturing cases. But of course there will always be exceptions depending on the facts and circumstances of a particular case. For example, when an accused person is caught giving instruction to others to process the drugs when he himself is not having the drugs on his body or not touching the machine. His presence there is not mere presence but for the purpose of manufacturing the drugs. The nexus is there, or, as in the case of Lim Son Heng, supra, even though the accused was not caught in action, based on the facts and circumstances of the case, he was still found to be in possession of all things inside the premises.

In order to establish possession, the prosecution must show that the drugs were in the custody or under the control of an accused person, and that he knew that which was in his custody or under his control was a drug subject to the prohibition under the Dangerous Drugs Act 1952: see, for example, PP v Abdul Rahman Akif [2007] 4 CLJ 337. There were thus a physical element and a mental element to be proven.

The mens rea of possession is frequently established by an inference from the surrounding circumstances. SECTION 9 OF THE POISONS ACT 1952 22. Section 9 of the Poisons Act 1952 reads as follows: PP v Radhakrishnan Syam & Ors 7 Section 9. Packaging, labelling and storing of poisons.

No person, whether licensed under this Act or not, shall knowingly sell, supply, keep or have in his possession or under his control or store any poison otherwise than in accordance with the regulations made under this Act and in force relating to the possession, containers, packaging, labelling or storing of such poison.

In any proceedings under this section if any person is proved to have sold, kept or had in his possession or under his control or stored any poison he shall be deemed to have done so knowingly, unless the contrary is proved by him.

Any person who contravenes subsection (1) shall be guilty of an offence against this Act.

It may be observed that the offence under section 9(1) requires both a physical element and a mental element to be proven. Under section 9(2), once the physical element is proven, the accused is deemed to have the requisite mens rea. The accused may rebut this legal presumption by adducing evidence on a preponderance of probabilities.

In relation to the offence of trafficking under section 39 of the Dangerous Drugs Act 1952, it fell to the prosecution to prove in this case:

that the drugs in question were methamphetamines and ketamine;

that the accused persons were trafficking the drugs in question. For this purpose, the prosecution must first prove that the accused persons were in possession of the drugs. To do so, the prosecution will need to establish that:

the drugs were in the custody of the accused persons or were under their control; and

(ii) they knew that the substance in question were drugs;

1510.17 grams of methamphetamine; and

2789.56 grams of ketamine.

having established possession, the prosecution must prove that the accused persons committed one or other of the acts of trafficking in the definition that term in section 2 of the Dangerous Drugs Act 1952, unless the prosecution was relying on the presumption of trafficking under section 37(da). PP v Radhakrishnan Syam & Ors 8 The identity of the substances 25. As explained earlier, material that were suspected to be dangerous drugs had been sent to the Department of Chemistry for analysis. Dr Saravana Kumar Jayaram (PW4), testified that his analysis revealed the existence of the following substances:

Dr Saravana further testified that both methamphetamine and ketamine were listed in the First Schedule to the Dangerous Drugs Act 1952.

I was satisfied based on Dr Saravana’s testimony that the substances recovered were “dangerous drugs” for the purposes of section 39B(1), and within the meaning of that expression under section 2 of the Dangerous Drugs Act 1952. Possession of the drugs 28. As explained at paragraph 19 ante, possession must still be proven before one of the acts of trafficking may be invoked. In this case, I was satisfied that both elements of possession—that the drugs were under custody and control of the accused persons and that that which was in their custody or under their control was a drug subject to the prohibition under the Dangerous Drugs Act

This finding is explained in the following paragraphs.

It will be recalled that the first accused, Radhakrishnan Syam, was apprehended together with one Rajan A/L Gaju at the Seri Mariaman temple, located next to the main road, some three kilometres away from the suspected laboratory and goat shed. Rajan A/L Gaju was a Malaysian national who was not charged together with the accused persons in this case.

According to the testimony of the raiding officer (ASP Soh Thong Keng, PW8), the second accused, Fazil Farook, was arrested inside the compound of the area fenced off with zinc sheets, in the space between the cement building and the goat shed. The third and fourth accused, Sainulabdeen Siyad and Abdul Kalam Sajeev respectively, were apprehended in the living or main room of the cement building, while the fifth accused, Salim Sabeer, was detained in one of the two other rooms in the building. PP v Radhakrishnan Syam & Ors 9 31. ASP Soh further testified that the main door of the cement building was not locked. In the living room was a refrigerator that contained food items. At the end of the this room were two metal beds. There were bags and clothing placed near the beds.

There were two other rooms in the building. In the first room were paraphernalia suspected of being used in the manufacture of methamphetamines. The second room was used as a store room for chemical substances in both liquid and solid form.

The drugs in this case were recovered from the living room and the first room. (The first room was located closer to the main door of the building, while the second room was to the rear of the building.)

Among the items recovered from the scene were toothbrushes. One toothbrush (Exhibit P154a), which was wedged on the outside of a window frame, was found to contain the DNA of the first accused, Radhakrishnan Syam. Five other toothbrushes and a metal tongue-scraper were found in a blue plastic bag hanging by a nail on the inside of the window. The DNA of the third accused, Sainulabdeen Siyad, was detected on one of the toothbrushes (Exhibit P157b) and the metal scraper (Exhibit P157f).

Police recovered two hairbrushes (Exhibits P159a and P159b) from the top of a box that had been placed against a wall in the living room of the building. This box appeared to serve as makeshift table. Hair recovered from one of the hairbrushes were found to belong to the fifth accused, Salim Sabeer. Swabs taken from the hairbrushes revealed that they contained the DNA belonging to Radhakrishnan, Sainulabdeen and Abdul Kalam Sajeev (the first, third and fourth accused respectively). The evidence relating to the collection and recording of the grooming and hygiene implements was led at trial through Mr Udiasoorian Samireddy (PW13), who was the forensics officer in charge of the case.

The DNA evidence thus placed all except the second accused in the living room of the building. (It may be observed that the toothbrush Exhibit P154a, from which Radhakrishan’s DNA was recovered was found wedged on the window frame on the outside of the building, and thus did not establish his presence inside the building. The other toothbrush and the metal scraper (Exhibit P157f) containing the DNA of Sainulabdeen (Exhibit P157b), however, were found in a plastic bag hanging on a nail inside the building.) The DNA evidence corroborated the testimony of the raiding officer, PW8, who testified that the second to fifth accused had all been arrested within the compound of PP v Radhakrishnan Syam & Ors 10 the fenced off area and that the main door to the building in which the drugs were found had not been locked. As far as the first accused was concerned, even though he was not arrested at the fenced off area, his DNA was found on one of the toothbrushes and a hairbrush recovered from the building, which placed him at the scene.

In the course of trial, five inspection forms were marked as exhibits through the raiding officer, ASP Soh. These inspection forms recorded that personal identification documents belonging to the accused persons had been recovered by the raiding team from inside the single-storey building. The material details were as follows:

Radhakrishnan’s passport recorded as having been found in a bag that was hanging by one of the beds (Exhibit P136);

a copy of an e-visa issued to Fazil Farook was found in a waist bag hanging at the head of one of the beds (Exhibit P137);

a copy of an e-visa issued to Sainulabdeen was found in a luggage bag located under one of the beds (Exhibit P138);

a passport issued in the name of Abdul Kalam Sajeev was found in a backpack inside the building (Exhibit P139); and

a passport belonging to Salim Sabeer was found in a backpack beside one of the beds (Exhibit P140).

Each of the inspection forms was countersigned by the relevant accused persons. ASP Soh was challenged on the ability of the accused persons to understand Bahasa Melayu (the language in which the forms were written), on whether the forms had been translated into Malayalam for the benefit of the accused persons and on whether ASP Soh had recorded in any police report where he had recovered these passports and other identification documents (he had not). However, the defence did not directly put to ASP Soh that he had not recovered the personal identification documents from bags located inside the single-storey building.

If the inspection forms were never translated into Malayalam or otherwise explained to the accused persons, then the fact that the accused persons had countersigned the forms cannot, in my considered view, amount to an admission by them that the various items had indeed been recovered from PP v Radhakrishnan Syam & Ors 11 the place recorded in the forms. Nonetheless, the inspections forms at Exhibits P136 to P140 still constituted evidence that ASP Soh had recovered the personal identification documents belonging to the accused persons from inside the building in question. The court was entitled to attach the appropriate weight to the evidence that was constituted by the inspection forms.

In Leow Nghee Hin v R [1956] MLJ 28, it was held that it is possible for more than one person to be in possession of a thing. The key consideration was whether the accused persons in this case had the power to exclude others from enjoyment of the property or thing.

More recently, in Ghasem Hozouri Hassan v PP [2018] 6 CLJ 133, the Federal Court held as follows: [27] Based on the pronouncement of this court in Denis Mahadevan as reproduced above, possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. Custody likewise may be sole or joint and it has the same element of excluding others. The main distinction between custody and possession is that a custodian has not the power of disposal. 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.

What amounts to the physical element of possession—the animus possidendi—depends on the circumstances of each case. It is not possible to exhaustively list the operative factors in of all possible circumstances, nor is possible to lay down any general rule on the point: see the judgment of Thomson J in Chan Pean Leon v PP [1956] 1 MLJ 237, which was endorsed by the Federal Court in Ghasem Hozouri Hassan v PP.

I was of the view that, based on the facts of the present case, the element of physical possession was proven. The factors that I have taken into account in arriving at this finding were as follows:

the second to the fifth accused persons were apprehended within the compound of the fenced off area. Indeed, the third to the fifth accused were found within the building that was suspected by police to be the drugs manufacturing laboratory; PP v Radhakrishnan Syam & Ors 12

the DNA evidence found on items of grooming not only placed the first, third, fourth and fifth accused persons within the building where the drugs were found, but also supported the inference that these accused persons had been living in the premises. Why else would toothbrushes be found on the premises but for the fact that these accused persons had been staying there for extended periods;

the passports and other identification documents belonging to the accused persons had been recovered from different bags that were found in the building. As explained above, the raiding officer was not directly challenged in cross-examination regarding the assertions contained in the inspection forms that the documents were recovered from inside the building at the time of the raid. His testimony was accordingly unshaken. The inference of fact that could be drawn was that the accused persons must have had access to the inside of the building, where the dangerous drugs were found;

the inference of fact that the accused persons were staying at the premises was further supported by the presence of food in the refrigerator, bags and clothing and the two bedsteads and mattresses. These were items that we found inside the house;

the drugs in question had been found in the living room and in the first room of the building. The proximity of the drugs to the place in which the accused persons had been living supported the inference that the drugs had been in the custody and control of the accused persons. Furthermore, the drugs were not hidden from view, which meant that the accused persons could not have not known of their presence in the building; and

the photographs adduced at trial (see for example, Exhibits P266 to P288) showed that the compound was cordoned by a zinc fence that was beyond the head height of the average person. This fact, together with the fact that the compound was located deep in an oil palm estate, excluded the possibility that there could have been others involved in the custody and control of the drugs.

Each of the factors above may not have been on their own capable of establishing the element of physical possession; however, taken together they established proof of this element of the offence on the criminal standard. PP v Radhakrishnan Syam & Ors 13 45. At trial, the defence sought to challenge on the testimony of PW8 regarding the location of arrest of the third to fifth accused persons, and whether the main door to the building was locked. It was also put to ASP Soh that the hairbrushes had been recovered from the pockets of the accused persons, rather than from the living room of the building.

In this regard, it is apposite to remind myself of the salutary words of Thompson CJ in PP v Mohamed Ali [1962] 1 MLJ 257: When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If he says he saw a cow jumping over the moon his evidence is, of course, not to be accepted, but if he says he saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of thing we all see every day of our lives) there is not the slightest justification for refusing to believe him. Of course if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a Police witness or not, who gives evidence on affirmation, should normally be accepted.

In this case, there was nothing in the evidence of ASP Soh, the raiding officer, that was inherently improbable. I would also observe that his testimony remained unshaken in cross-examination. Having also had the advantage of observing the PW8’s testimony in person, I saw no reason to disbelieve his testimony, and accepted it as being representative of the actual events that had transpired.

It was not sufficient for the prosecution to merely prove that the accused had physical possession of the drugs. The mental element of possession must also be proven: that the accused persons knew the nature of the drug, or put another way, that the substance recovered from the building were dangerous drugs.

Short of a confession, the mens rea of possession would almost always have to be inferred from the surrounding circumstances. At the end of the prosecution’s case, I was able to infer from the evidence adduced up to that point that the accused persons knew that the substance found in the building were drugs. The critical items of evidence were:

the drugs were not hidden in either the living room or the first room in the building. Instead, they were kept in the open. From the very appearance of, for example, the methamphetamine packets (see PP v Radhakrishnan Syam & Ors 14 exhibits P183 to P188), it would have been obvious even to the untrained eye that the crystalline and powdered substances were drugs;

ASP Soh (PW8) testified that there was a strong chemical smell that permeated throughout the building. The pervasive smell suggested that the accused persons could not have not known that the substance recovered from the premises were drugs;

PW8 further testified that the accused persons appeared scared when they were apprehended, from which it may be inferred that they knew that the game was up; and

the keeping of the substances in a building that was located deep within an oil palm estate suggested that the accused persons must have known the nature of the items stored there. Why else would the substances be stored in a remote location, except to keep them away from prying eyes.

Here again I was of the view that each of the items of evidence were not by themselves decisive but taken together provided a foundation from which the court infer the requisite mens rea. Taken cumulatively, these items of evidence were sufficient to establish that the accused knew that the substance in the building in which they were occupying were dangerous drugs. The element of mens rea for possession was thus proven.

The accused persons were charged with having together contravened section 39B(1)(c) of the Dangerous Drugs Act 1952. Under section 34 of the Penal Code, liability is established if it can be proven that the accused persons had acted together in furtherance of a common intention. Section 34 provides as follows:

Each of several persons liable for an act done by all, in like manner as if done by him alone 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.

The Court of Appeal in Sabarudin Bin Non v Public Prosecutor [2005] 4 MLJ 37 cited with approval the following passage from the Indian case of Suresh v State of Uttar Pradesh AIR 2001 SC 1344: PP v Radhakrishnan Syam & Ors 15 Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the common sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gain saying that a common intention pre-supposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.

I was satisfied that the common intention of the accused persons can be properly inferred from the circumstances of the presence case. The key factors in this regard were the fact that there were a large quantity of drugs that were found in an unconcealed location in the premises, and the fact that all the accused persons had access to the rooms in which the drugs were found. Trafficking 54. It will be recalled that the charge against the accused persons was framed under section 39B(1(c) of the Dangerous Drugs Act 1952, for committing an act preparatory to trafficking. The keeping and storing of a dangerous drug could be said to be an act that is preparatory to another act of trafficking, for example, selling or transporting the drugs in question. Furthermore, as can be seen from paragraph 15 ante, the definition of “trafficking” in fact includes keeping and storing dangerous drugs.

On the facts of the present case, I was of the view that the prosecution had sufficiently established that dangerous drugs had been kept and stored by the accused persons at the premises in question. As previously explained, the methamphetamine had been sealed in transparent plastic bags. No attempts had been made to conceal either the methamphetamine or the ketamine. It may thus be inferred that the drugs in question had been kept and stored by the accused persons, as the location at which the drugs were found meant that they could not have not known of their existence.

In their written submissions, learned counsel for the accused persons submitted on the following additional points: PP v Radhakrishnan Syam & Ors 16

it was submitted that the court ought to have drawn an adverse inference for the failure by the prosecution to call certain witnesses to testify at trial;

it was contended that the photographs tendered at trial ought not be admissible as they were not primary evidence; and

it was further contended that the government chemist, PW4, did not possess sufficient expertise to testify regarding the nature and quantity of drugs/poisons said to have been recovered from the scene.

Each of these three points are addressed in turn in the following paragraphs. Adverse inference under section 114(g) of the Evidence Act 1950 58. It was advanced by the defence that the court ought to have invoked an adverse inference under section 114(g) of the Evidence Act 1950 on account of the contended failure by the prosecution to call certain witnesses:

The tenant of the land in question. At trial, the prosecution called as a witness the owner of land on which the alleged laboratory and goat pen were located. Mr Geva Krishnan (PW3) testified that he had let out the land in question to one Prema B Khaan Balasingam, through a tenancy agreement dated 15 March 2018. He had advertised the land on mudah.my and Prema had answered his advertisement. PW3 further testified that, at the time he let out the land, there was already the building and goat pen on it, but that they were empty. He visited the land three times thereafter, and observed that there were five workers working at the location and that the zinc fence had been put up around the perimeter of the land. These workers were not the accused persons. About three months after the tenancy agreement was signed, PW3 was himself incarcerated in prison, so he knew of no further information after this date. Dato’ Hariharan Singh for the accused persons submitted that Prema B Khaan Balasingam ought to have been called by the prosecution in order to give evidence on what had transpired on the land in question PP v Radhakrishnan Syam & Ors 17 from the date of the tenancy agreement, 15 March 2018 until the date of raid on 3 August 2018. Section 114(g) of the Evidence Act 1950 permits the court to draw an inference against a party that withholds evidence. The court may presume that the evidence, if adduced, would be adverse against that party. The presumption can only arise if there has been a withholding or suppression of evidence. The mere failure to adduce relevant evidence will not give rise to an adverse inference. Mohamed Azmi SCJ explained in Munusamy v PP [1987] 1 MLJ 492: It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case. Presumptions ought not be drawn automatically. The circumstances of the case must be examined carefully to determine whether the presumption is justified. Ong J in Mohamed Ali v PP [1962] 1 MLJ 230 stated as follows: In drawing presumptions under section 114 of the Evidence Ordinance, 1950, it is to be observed that what the section says is that the existence of certain facts may be presumed which the court "thinks likely to have happened" in the circumstances of the particular case. Presumptions of fact must not be drawn automatically, or, as it were, by rule of thumb, without first considering whether in the circumstances of each particular case there were adequate grounds to justify any presumption being raised. Even, with regard to presumptions of law, Devlin L.J. said recently in Berry v British Transport Commission [1961] 3 WLR 450 463: "… Presumptions of law ought to be used only where their use is strictly necessary for the ends of justice. They are inherently undesirable – in the sense that 'estoppels are odious', and the 'doctrine should never be applied without a necessity for it'; per Bramwell L.J. Baxendale v Bennett (1878) 3 QBD 525, CA 529 – because they prevent the court from ascertaining the truth, which should be the prime object of a judicial investigation, and because if they are allowed to multiply to excess, the law will become divorced from reality and will live among fantasies of its own." PP v Radhakrishnan Syam & Ors 18 I was satisfied that, on the facts of the present case, there existed no basis in law for the invocation of an adverse inference for the failure by the prosecution to call Prema B Khaan Balasingam to testify. In circumstances where the drugs were recovered from a concealed place in the premises, and the accused disavows knowledge of the existence of the drugs, then the issue of who was the lawful occupier of the premises comes to the fore. Could the drugs have been placed in the premises before the accused came onto the premises? Did the accused know of the existence of the drugs? Was it possible to exclude the involvement of the lawful occupier? These would all be facts in issue where the drugs were concealed within the premises. By contrast, the evidence in the present case established that the drugs were found in the open and in unconcealed locations in the building alleged to be the laboratory. The evidence also placed the accused persons inside the building. The implication of these basic facts were that the accused persons could not have not known of the existence of the suspicious crystalline and powdered substance neatly packed into transparent plastic packages. Put another way, even if Prema B Khaan Balasingam was complicit in the arrangement to set up a meth lab deep in a plantation estate in Rantau, this did not in any meaningful way detract from the culpability of the accused persons under section 39B of the Dangerous Drugs Act 1952;

Rajan A/L Gaju, who was the subject of initial police survelliance. It will be recalled that Rajan had been detained by the police together with the first accused at the Seri Mariamman temple. In the course of trial, evidence was received that the police had obtained intelligence regarding a drug syndicate that was masterminded by man of Indian ethnicity who used a Mazda four wheel drive truck bearing the registration MCY 5242. This man, according to the defence, was Rajan. Evidence was also received that Rajan had been separately charged with other drugs-related offences (not related to the present charges). Learned counsel for the accused persons submitted that Rajan A/L Gaju ought to have been called by the prosecution as he would have been able to reveal the whole episode of events that led to the arrest of the accused persons. The failure by the prosecution to do, it was submitted, entitled the court to draw an adverse inference. PP v Radhakrishnan Syam & Ors 19 In my considered judgment, the same observations apply as they do in respect of Prema B Khaan Balasingam. Even if Rajan were called to testify, it would not change the basic fact that the accused persons were found to be in close proximity with the drugs. Rajan may well have been the mastermind—or at the very least the lynchpin of the operations—but whether or not this was true had no effect on the culpability of the accused persons;

The Chinese couple. At trial, Sarjan Mohd Rozek bin Azmi (PW17) testified that he had been stationed at the compound within the plantation between 10am and 11.30pm on 4 August 2018 in order to monitor and control access to the scene of the suspected crime. He was asked whether he saw a Chinese couple present on the premises. He answered that he did not. When the investigating officer (ASP Nursaiful Asrar, PW18) testified, the existence of the Chinese couple was put to him in cross-examination: DH: Setuju dengan saya, rumah tempat kejadian. Kawasan ini ada rumah, zink di sekeliling dan kawasan kambing di depan tempat-tempat air minuman untuk lembu. Ini adalah rajah kasar. ASP bersetuju dengan saya, semasa siasatan ada menunjukkan ada sepasang suami isteri berbangsa Cina pernah mengakses melalui tempat berpagar. Semasa penyiasatan mendapati ada orang mengakses melalui pagar belakang ke pagar depan. Ada? SP18: Ada It was advanced for the defence that the prosecution ought to have called the sentry officer who was on duty before 10am on 4 August 2018, who could have revealed that the area had been accessible to other individuals. The failure by the prosecution to do so—it was argued—amounted to a withholding of evidence, as the prosecution had an ulterior motive for not producing the evidence. In my considered judgment, the same analysis and conclusion in the two preceding subparagraphs applied here too. The proximity of the accused to the drugs that were unconcealed, which was established through their physical presence inside the building at the time of arrest, the recovery of personal identification documents and/or by PP v Radhakrishnan Syam & Ors 20 the DNA evidence, meant that the access of other persons to the compound was not a fact in issue in this case. In addition and no less significantly, the presence of the Chinese couple was not in fact properly before the court. The investigating officer (SP18) was not present at the scene and thus was not competent to testify regarding the presence of anyone else at the compound. He could testify that he had been told by someone else that a Chinese couple had been present, but this testimony was inadmissible for the purposes of establishing the truth or otherwise of the statement. The admissibility of the photographs 59. At trial, Korperal Saiful bin Yaacub (PW10) testified that he had taken the photographs that were tendered at trial. According to PW10, the photographs were taken using a Canon EOS 600D digital camera, which utilised a memory card. The image files were then copied from the memory card into a pen drive using a computer. The contents of the pen drive was then copied again onto a CD-R (recordable compact disc). The photographs tendered at trial were printed from this CD-R.

The image files that were contained in the pen drive and in the memory card had been deleted by PW10.

Dato’ Hariharan for the defence submitted that the photographs were thus inadmissible on account that they were not primary evidence.

Dato’ Hariharan was entirely correct that the photographs tendered were not primary evidence. Had the photographs been printed directly from the memory card, then they would have been primary evidence: see Explanation 3 to section 62 of the Evidence Act 1950. In this case, the photographs had not been printed directly from the memory card.

Once the image files were copied onto the pen drive, the images on the pen drive became secondary evidence of the originals: see section 63(b). As a general rule, documents must be proved in court by the adduction of primary evidence: section 64. Secondary evidence may, however, be adduced provided one or other of the requirements of section 65(1) have been met. Section 65(1), which is material for the present purposes, provides as follows: PP v Radhakrishnan Syam & Ors 21 Section 65. Cases in which secondary evidence relating to documents may be given.

Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

when the original is shown or appears to be in the possession or power—

of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it, and when after the notice mentioned in section 66 such person does not produce it;

when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time;

when the original is of such a nature as not to be easily movable;

when the original is a public document within the meaning of section 74;

when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence;

when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.

Of particular relevance is paragraph (c). In my considered view, based on a plain reading of his provision, once evidence is led that the original had been destroyed or lost, then secondary evidence of the original becomes admissible.

The presence of the comma after the word “lost” makes it clear that the two scenarios described in paragraph (c) are disjunctive. This means that, once evidence is led that the original has been destroyed or lost, there will be no further need to show that the person seeking to adduce the document has not been in default or neglect in failing to produce the original.

In this case, SP10 testified that he had deleted the originals. This was, in my judgment, sufficient to fulfil the first limb in section 65(1)(c) of the Evidence PP v Radhakrishnan Syam & Ors 22 Act 1950. The photographs were accordingly admitted into evidence and marked as exhibits. The qualifications of the government chemist 67. It was contended by counsel for the defence that the prosecution had failed to establish that that government chemist who had been called to testify, Dr Saranava Kumar Jayaram (PW4), was indeed an expert for the purposes of section 45 of the Evidence Act 1950.

I was of the view that this contention was not made out. Dr Saravana had been a government chemist since 2003. In his testimony in court, he very clearly explained the methods that he had employed to identify the substances tested, as well as to ascertain the net weight of those substances. These methods included gas chromatography-mass spectrometer and Fourier transform infrared spectroscopy, which were used to identify the drugs/poison in this case. In order to ascertain the quantity of the drugs/poison recovered, the substances recovered were first homogenised and then samples taken from the homogenised material. These samples were analysed using a gas chromatography-flame ionisation detector instrument, in order to arrive at the net weight of the drugs/poison in the sample, from which the net weight of the drugs/poison recovered could be deduced. In the list of training that Dr Saravana had undertaken, there included those relating to gas chromatography. This, coupled with the absence of challenge from the defence on his credentials, were sufficient in my view to establish the expertise of Dr Saravana in analysing the drugs/poison involved in this case. Decision at the end of the prosecution’s case 69. At the end of prosecution’s case, based on a maximal evaluation of the evidence adduced up to that point, I formed the view that a prima facie case had been made out against the accused persons under section 39B(1)(a) of the Dangerous Drugs Act 1952.

Each of the elements of the offence of trafficking has been established:

Dr Saravana Kumar Jayaram (PW4), testified that his analysis revealed the existence of 1510.17 grams of methamphetamine and 2789.56 grams of ketamine from material recovered during the police raid. Both methamphetamine and ketamine are listed in the First Schedule to the Dangerous Drugs Act 1952; PP v Radhakrishnan Syam & Ors 23

the accused persons were in possession of the drugs, for the reasons explained in paragraphs 28 to 50 ante; and

by having kept and stored the dangerous drugs on the premises in question, they had trafficked the drugs.

The prosecution had thus established a prima facie case for the charge under section 39B(1) of the Dangerous Drugs Act 1952 without reliance on any presumption under section 37 of the Dangerous Drugs Act 1952. The defence was called to present their case. THE PROSECUTION’S CASE: SECTION 9(1) OF THE POISONS ACT 1952 72. The accused persons were charged under section 9(1) of the Poisons Act 1952 for knowingly having in their possession 996.2 grams of pseudoephedrine otherwise than in accordance with the regulations made under the Poisons Act

Pseudoephedrine is an alkaloid of ephedra, which is listed in the First Schedule to the Poisons Act 1952. It is accordingly a “poison” for the purposes of section 9(1). At trial, Dr Saravana, the government chemist (PW4) testified that pseudoephedrine is listed in the First Schedule. His testimony was not challenged under cross-examination.

The pseudoephedrine was recovered from a plastic zip lock bag located in the first room of the building (Exhibit P19, which is depicted in the photograph at Exhibit P59). Like the dangerous drugs that were found in the building, the plastic bag containing the pseudoephedrine was not concealed from sight.

For the same reasons explained at paragraphs 28 to 45 ante, I found that the prosecution has proven that accused persons were in physical possession of the pseudoephedrine.

As explained in paragraph 23 ante, the offence under section 9(1) comprises both a physical element and a mental element. Under section 9(2), once physical possession is proven, the accused is deemed to have the requisite mens rea. The accused may rebut this legal presumption by adducing evidence on a preponderance of probabilities.

I thus found that the prosecution had proven a prima facie case in respect of the charge for possession of pseudoephedrine under section 9(1) of the Poisons Act 1952, and the accused were called upon to present their defence to this charge. PP v Radhakrishnan Syam & Ors 24

All the accused persons in this case elected to give sworn testimonies. Their testimonies were received through witness statements.

The key thrust of the defence was that none of the accused persons had access to the inside of the building, as the front door of the building, according to the accused persons, was locked at all material times. If their contentions were found to be true, or if a reasonable doubt was raised as to their access to the inside of the building, then the defence would have successfully refuted the element of physical possession, and the accused persons would have been entitled to acquittal. The evidence from the accused persons 79. The accused persons were friends from a village called Kollam in Kerala, India. They spoke Malalayam and a little Tamil. They could understand neither English nor Bahasa Melayu. They were recruited by an agent in India to work in Malaysia. The second accused, Fazil Farook, made contact with Rajan A/L Gaju, with whom terms were agreed. In April 2018, all the accused persons except Abdul Kalam Sajeev (the fourth accused) arrived in Malaysia by bus from Thailand. The fourth accused would join them later, in July of 2018. Here, they were met by Rajan who brought them to a house in Sunway Semenyih, Kajang. Also living in the house were Rajan and his family: Rajan’s mother and his brother. Rajan arranged for the necessary visa applications.

The four accused persons who arrived in Malaysia earlier were put to work by Rajan as goat hands. They testified that they commuted daily to the compound where the goat pen was located. According to them it was a 40- minute commute each way. Learned DPP in this case submitted that it was extremely unlikely that the journey from Sunway Semenyih to the plantation in Rantau would only take 40 minutes. I was however of the view that the duration of such a journey was not a fact of which I could take judicial notice, given the absence of any evidence to contradict that of the accused persons.

The accused persons worked every day of the week between 7am and 6pm. Their daily tasks included feeding the goats twice a day with hay that would be periodically delivered by a Chinese man in a lorry. At trial, evidence was received from the sentry officer (PW17) that 21 goats had been removed from the scene while he was on duty, substantiating the accused persons’ version of events that there had indeed been goats on the premises. There was no water PP v Radhakrishnan Syam & Ors 25 supply at the premises, and hence water had to be collected from the temple, which was approximately 3 kilometres away, located by the main road.

According to the accused persons, they were not permitted inside the building that was located in the compound. They testified that its front door was padlocked.

The evidence of the accused persons was that, because of the long working hours, Radhakrishnan would cook for them, utilising the space at the side of the building in the compound. They would also shower and brush their teeth in the lavatory attached to the house, which was accessible from the outside of the building.

They further testified that the compound was accessed by many people, including persons whom they named as Ravi, Thiagu and Prakash, and villagers who would walk through the compound to get to the oil palm plantation located at the back of the compound.

According to the accused persons, none of them were arrested inside the house, contrary to the testimony of ASP Soh, the raiding officer. By their version of events, at the time the police raided the premises, Fazil Farook was walking towards the gate, Sainulabdeen and Salim Sabeer were cleaning the goat shed and Abdul Kalam was feeding the goats.

After they were arrested, all the accused were said to have been made kneel on the ground. A body search was conducted and the accused persons were asked to turn out their pockets. The hairbrushes, according their testimonies, were retrieved from the pockets of Sainulabdeen and Abdul Kalam.

A further critical portion of their testimony was that their passports and other identification documents were recovered not from inside of the building, but from a sling bag held Rajan.

Counsel for accused persons drew the court’s attention to the fact that, although 209 photographs had been taken by the police photographer, there was not a single photograph taken of the personal identification documents, of the bags from which they were said to have been recovered nor of the mobile phones that were said to have been seized at the same time. PP v Radhakrishnan Syam & Ors 26

For the charge under section 39B(1) of the Dangerous Drugs Act 1952, the role of the court is to consider whether the accused persons have raised a reasonable doubt regarding any part of the prosecution’s case. Analysis and findings 90. The physical evidence in this case—the DNA evidence and the personal identification documents—placed the accused persons inside the house. There were material differences between the version of events put forth by the prosecution witnesses (primarily ASP Soh (PW8), the raiding officer, and former ASP Udiasoorian Samireddy (PW13), the forensics officer, who by the time of trial had retired from service) on the one hand, and the testimonies of the accused persons, on the other. It ultimately boiled down to:

whether ASP Soh was telling the truth, regarding the recovery of the passports from inside the building, regarding the unlocked front door and regarding the arrest of the third, fourth and fifth accused persons inside the building in question; and

whether Mr Udiasoorian was telling the truth, regarding the recovery of the blue plastic bag containing the toothbrushes and metal band and the recovery of the hair brushes, from inside the building.

The testimony of ASP Soh was not inherently improbable, and as such due weight ought to be accorded to his evidence. Furthermore, having observed the demeanour of ASP Soh in the course of trial, I saw no reason to disbelieve his testimony.

The version of events put forth by the defence was that the hairbrushes were recovered not from the inside of the building but from the pockets of the accused persons. This was never put to Mr Udiasoorian. I was also of the view that the fact that Mr Udiasoorian had already retired by the time of trial gave greater credence to his testimony. Nothing could conceivably be gained by his giving false testimony under oath. If the defence was correct, then it must necessarily follow that Mr Udiasoorian had staged the scene of the raid, by placing the hair brushes and the blue plastic bag containing the dental implements inside the building so that the police photographer could record their position as such. PP v Radhakrishnan Syam & Ors 27 93. I preferred the testimonies of PW8 and PW13 over what I viewed were self-serving testimonies from the accused persons. More than just that, I found that the evidence of the defence did not raise any reasonable doubt. The possibility that both ASP Soh and Mr Udiasoorian concocted a version of events to implicate the accused persons were in my considered judgment so infinitesimally small so as to be incapable of raising a reasonable doubt on the prosecution’s case.

In the following paragraphs, I address specific points raised by defence in their written submissions. The non-attendance of Rajan A/L Gaju 95. It will be recalled that Rajan A/L Gaju was the person who had been under police surveillance in connection with a suspected drugs manufacturing syndicate. Although he was initially detained together with the accused persons, he was never charged for the offences that were the subject matter of the present case. Rajan was, however, charged for a separate drug trafficking offence, and had been placed in remand pending the completion of trial for that case.

It was always the intention of the defence to call Rajan as a witness. He was interviewed by the defence while in prison, and a draft witness statement had been served on the prosecution.

Rajan was slated to be last witness for the defence. On 13 October 2022 (after the last accused person testified), the court was informed that Rajan had already been discharged and acquitted less than 10 days earlier, on 4 October

Subsequent efforts to locate Rajan came to naught.

Learned counsel for the defence referred the court to the case PP v Asnawi Yusuf [2012] 3 CLJ 41, a decision of the Court of Appeal. According to counsel, the failure by the prosecution to secure the attendance of Rajan entitled the accused persons to be acquitted, based on the principles established in PP v Asnawi Yusuf. The accused in that case was the respondent before the Court of Appeal. The High Court had acquitted the accused, and the prosecution appealed. The respondent was charged with trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952. It was alleged that he had offered to sell cannabis to a police agent posing as a purchaser. The accused was detained having driven up to the rendezvous point in a white Proton Iswara, which was found to contain 28 kilograms of cannabis. When detained, the accused explained that he did not know that the packages in the car contained cannabis, PP v Radhakrishnan Syam & Ors 28 and that the car belonged to one Abdul Rahman and that the packages belonged to one Fakrullah. According to the respondent, Fakrullah had promised him RM300 to drive the car, and had stepped out of the car immediately before the police officers arrested him.

Three acquaintances of the accused, including Abdul Rahman, had been detained subsequent to the arrest of the accused. These three persons were offered as witnesses by the prosecution to the defence at the end of the prosecution’s case. When the defence attempted to secure the attendance of these potential witnesses, they were told that the witnesses could not be traced.

Both the High Court and the Court of Appeal were of the view that the non-production of the three potential witnesses raised a reasonable doubt. The Court of Appeal held: [18] It was the view of the learned trial judge that the failure of the prosecution to make available the three missing witnesses offered to the defence at the close of the prosecution case raised a reasonable doubt on the prosecution case. The learned trial Judge felt that their production would go towards establishing the existence of Fakrullah and the role played by him and consequently raising a doubt in the prosecution case. We agree with the findings made by the learned trial judge.

The Court of Appeal expressed the view that it was incumbent upon the prosecution to secure the attendance of witnesses that it had offered to the defence, and that if there was breach of this duty, the accused person was entitled to be acquitted: [22] Learned defence counsel gave ample warning to alert the court and especially to the learned Deputy Public Prosecutor that it was h's intention to call those witnesses including, but not limited to, M Dahlan, Edy Shahputra and Abdul Rahman. [23] Now, perhaps curiously, when learned defence counsel wanted the above-named three witnesses to testify, the public prosecutor said that all of them were not available. The reason proffered was that they cannot be traced as they are Indonesians! Such reason is simply untenable and indefensible particularly in a case involving the liberty of an individual. We have provisions in our laws to ensure that this should not have happened. It is clear law that when witnesses are offered by the prosecution to the defence at the end of the case for the prosecution, it is the bounden duty of the prosecution to avail these witnesses for the defence. If in the exercise of this duty, the prosecution fails to fulfill this obligation, the accused must be acquitted.

In my considered judgment, the key question determining whether an acquittal ought to be ordered is whether the non-attendance of a witness that PP v Radhakrishnan Syam & Ors 29 had been offered to the defence has raised a reasonable doubt in the prosecution’s case. In PP v Asnawi Yusuf, the fact in issue was whether the accused knew that the packages contained cannabis—which went towards the mens rea for possession. The attendance of the three witnesses could establish whether or not Fakrullah did exist, and whether or not Fakrullah had asked to borrow Abdul Rahman’s Proton Iswara. Their testimony could have supported the version of events put forth by the defence, and hence their non-attendance was material to the determination of the guilt of the accused.

By contrast, in the present case, the objective facts established the presence of the accused persons in the house (see paragraphs 34 to 39, ante). The element of physical possession of the dangerous drugs and poison could be inferred from the surrounding circumstances (see paragraph 43), as could the mental element of possession (see paragraph 49). Whether or not Rajan was called to testify would not change or negate these findings. Put another way, there was no live fact in issue that could be resolved by the attendance of Rajan. I was thus of the view that the non-attendance of Rajan would not have been capable of raising a reasonable doubt regarding the guilt of the accused persons, which was established from inferences drawn from the objective facts in this case. The failure of the prosecution to cross-examine the accused persons on critical points of evidence

When the accused persons testified, the prosecution did not cross-examine the accused persons on certain critical items of evidence. These included:

the testimony of the accused persons that the building from which the dangerous drugs and pseudoephedrine were recovered was locked and that the accused persons did not have access to the inside of the building;

their evidence that the third to fifth accused persons had been arrested outside the building, together with the second accused, and not inside it as per the testimony of PW8;

their evidence that the passports and other personal identification documents had been recovered from a sling bag worn by Rajan; and

their evidence that the hairbrushes (on which DNA material belonging to the first, third, fourth and fifth accused persons were found) were PP v Radhakrishnan Syam & Ors 30 retrieved from the pockets of Sainulabdeen (the third accused) and Abdul Kalam (the fourth accused).

The effect of a failure to cross-examine a material witness of the opposing party on a fact in issue was explained by the Federal Court in Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212: Mr. Jagjit Singh also raised as one of his main grounds of appeal that the trial judge erred in law when he held that the failure of the defence to cross examine the two prosecution witnesses on the ammunition actually found in the trouser pockets of the appellant at the time of his arrest (the subject-matter of the third charge) constituted a clear admission of the charge of possession by the appellant. We consider that statement of the law as a misdirection. A correct statement of the law is that failure of the defence to cross-examine the prosecution witnesses on the matter merely goes to the credibility of their testimony, to wit, the fact that they found the ammunition in the appellant's trouser pockets remains unshaken. On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness's testimony. But as is common with all general rules there are also exceptions as pointed out in the judgment of the Supreme Court of New Zealand in Transport Ministry v Garry [1973] 1 NZLR 120, 122 where Haslam J. said at page 122:— "In Phipson on Evidence 11th edition paragraph 1544 the learned authors suggest examples by way of exception to the general principle that failure to cross-examine will amount to an acceptance of the witness's testimony, viz, where '… the story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy … or when counsel indicates that he is merely abstaining for convenience, e.g., to save time. And where several witnesses are called to the same point it is not always necessary to cross-examine them all.'”

In my considered view, the failure by the prosecution to cross-examine the accused persons on these portions of their testimony does not mean that the court is bound to accept the testimony of the accused persons as truth. The reasons are twofold:

First, the witnesses for the prosecution have already given testimony putting forth a contrary position. Hence there is no question of the prosecution having accepted the testimony of the defence witnesses. Contrast this position with the situation where the witnesses for the prosecution did not provide any testimony regarding a particular fact in issue. If a contrary fact is then raised by the defence, and the prosecution chooses not to cross examine the defence witness on that PP v Radhakrishnan Syam & Ors 31 fact, then there will only be one version of events that is properly before court. In such circumstances, the court ought to accept that version as being representative of the truth, provided of course that the rule in Browne v Dunn has been complied with: which is that that version of events must have been put to the material witness of the prosecution; and

Secondly, as pointed out by the Federal Court in Wong Swee Chin v PP, the effect of the failure to cross-examine the witness of the opponent goes to the weight of the testimony of that witness. The credibility of that testimony must be still evaluated against the version of events put forth by the witness of the opposing party, as well as against the overall probabilities of the case.

Dato’ Hariharan for the defence referred the court to the case of PP v Cheah Leong Foo [2000] 6 MLJ 705. In that case, a witness for the defence provided testimony that differed from the version of events that had been put forth by the witness for the prosecution. It was held that the prosecution’s failure to cross examine the defence witness sufficiently raised a reasonable doubt as to whether the prosecution’s version was true.

In my considered judgment, PP v Cheah Leong Foo does not stand for a general proposition of law that a reasonable doubt must arise in all such circumstances where the prosecution has failed to cross examine the defence witness on the fact in dispute. Rather, the court must still proceed to weigh the relative merits of the competing assertions, mindful of the standard of proof that must be discharged by the respective parties. The ordinary principles would apply on evaluating the evidence of the witness of the defence: does the court believe the defence witness? If so, it must acquit. If it does not believe the witness, the court must proceed to ask itself a further question: has the testimony of the witness given rise to a reasonable doubt? If the answer is in the affirmative, then court must acquit.

Having evaluated the testimonies of the witnesses in this case, I was of the view that the testimonies of the accused persons have not given rise to any reasonable doubt regarding their culpability on the charges.

Conclusion and sentence For the reasons explained above, I convicted all four accused persons under the trafficking charges.

PP v Radhakrishnan Syam & Ors 32 Having found all the elements of the offence of trafficking under section 39B(1)(c) have been made out, and that the defence has not raised any reasonable doubt, I sentenced all the accused persons to death by hanging, which was the statutorily mandated sentence for drug trafficking.

Had a discretion been available to me to impose a custodial sentence instead, I would have done so. The accused persons in this case were clearly not the masterminds of the meth lab. They were Indian nationals who clearly would not have had the wherewithal to organise the rental of the premises, or its outfitting with equipment (which would have represented a substantial investment outlay).

ACT 1952 In relation to the charge under section 9(1) of the Poisons Act 1952, the court is to consider whether firstly, the accused persons have raised a reasonable doubt as to the element of physical possession, and secondly whether the statutory presumption of knowledge under section 9(2) of the Poisons Act 1952 has been rebutted on a balance of probabilities. If the defence was able to successfully do either of these, the accused persons were entitled to be acquitted.

Analysis and findings The same analysis as set out in paragraphs 90 to 93 above applied in relation to the charge under section 9(1) of the Poisons Act 1952. The evidence adduced during the case of defence was incapable of raising a reasonable doubt as to the element of physical possession.

No evidence was adduced by the accused persons that they had the necessary approvals under the regulations issued pursuant to the Poisons Act 1952 to be in possession of pseudoephedrine.

The next question to be determined was whether the defence has successfully rebutted the presumption of knowledge under section 9(2). I was of the view that it had not. As explained, the thrust of the evidence adduced during the case of the defence was to establish that the accused persons did not have access to the inside of the building, where the dangerous drugs and poison (within the meaning of the Poisons Act 1952) were found, and by so doing to negate the element of physical possession. Having carefully considered the evidence adduced by the defence, I formed the view that there was nothing that PP v Radhakrishnan Syam & Ors 33 would cause me to conclude that the presumption of knowledge had successfully been rebutted on a balance of probabilities.

I accordingly convicted all the accused persons for the charge of possession of 996.2 grams of pseudoephedrine under section 9(1) of the Poisons Act 1952.

Sentence Section 9(1) of the Poisons Act 1952 is punishable under section 32 by a fine of up to RM50,000 and a custodial sentence of up to five years. Taking into account the fact that almost a kilogram of pseudoephedrine had been found in the possession of the accused, and after hearing the arguments of counsel on mitigating factors, I sentenced all the accused persons to imprisonment for a term of four years, to commence from the date of their arrest. 31 May 2023 Azizul Azmi Adnan Judge High Court Seremban For the prosecution: Tuan Husni Fairos bin Ramly—Deputy Public Prosecutor For the all the accused persons: Dato’ Hariharan Tara Singh, Ms Tania Scivetti & Ms Effa Azuan binti Aidrul Hisham—Messrs Scivetti & Partners