[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v LEE YU HUAT (WA-45A-19-07/2020)

The Accused faces three charges. One charge is for drug trafficking 3,797.2 grams of methamphetamine. The second charge is for drug possession of 0.78 grams of 3.4-Methylenedioxymenthamphetamine (MDMA). The other charge is for drug possession of 0.78 grams of ketamine. The charge for drug trafficking under s39B Dangerous Drugs Act 1939 (DDA) carries a penalty of death or life imprisonment with minimum whipping of 12 strokes. The charges for drug possession under s12(2) DDA provides the penalty of a fine not more than RM100,000 or imprisonment for not more than five years or to both.

The drug trafficking offence was said to have been committed on 24.12.2019 at approximately 4.25pm at the side of the road in front of Shamelin Star Residence Rigel, Lorong 1/19, Taman Shamelin Perkasa, Cheras, Kuala Lumpur. The drug possession was allegedly committed on the same date at 5.20pm at F1-18-8 Kondominium Sg Besi 2, Cheras, Kuala Lumpur.

At 1pm on 24.12.2019 the Complainant (SP4) received information from the public that there was someone of Chinese ethnicity who was trafficking drugs using a black Honda Accord with the registration plate WA 2266 K. With a team of seven other police officers, SP4 monitored the road in from of Shamelin Star Residence Regal, Lorong 1/91, Taman Shamelin Perkasa, 56100 Kuala Lumpur at around 4.25pm.

After 15 minutes of recognisance, SP4 sighted a black Honda Accord with the said registration plate stopped at the side of the road. He saw a man of Chinese ethnicity which appeared suspicious to him, stepped out from the driver’s seat.

SP4 and the police team introduced themselves and apprehended him. A physical body search was conducted. A Honda remote control was seized from his right hand. The man witnessed SP4 searched the car where a black plastic bag was retrieved from behind the seat of the back passenger seat.

A further examination of the black plastic bag resulted in the discovery of five green plastic bags with the label ‘Qing Shan’ where in each of the five green plastic bags contained one clear plastic with contents suspected methamphetamine. They were seized together with two keys and two white access cards.

The man is the Accused. He was arrested. SP4 and the police team then set off to F1-18-8 Kondominium Sg Besi 2, No 1 Jalan Besi Kawi, Off Lebuhraya Sungai Besi, 57100 Kuala Lumpur, directed by the Accused. The apartment door was opened using the keys seized from the Accused. The apartment was empty and a search was conducted witnessed by the Accused.

Three black packets written on them ‘James Bond’ with contents suspected to be MDMA powder was found on a small table in the living room and one bottle labelled ‘Ribena’ was found with liquid inside it suspected to be MDMA. Also seized was the Accused’s Malaysian passport.

SP4 explained the reasons for the Accused’s arrest to him and the seizure forms were duly signed (P18 and P19). The Accused was taken to the Cheras police station for further action. SP4 had weighed the contrabands seized. All items were marked by SP4 before he lodged the first information reports (P20A-B, C). SP4 thereafter surrendered all items including the car to the investigating officer SP12. They were documents (P21, P22).

SP12 recorded all items which were kept under his custody. SP12 had conducted finger dusting that did not yield any results. The items were photographed. The suspected drugs were sent to be analysed by the chemist (SP1). Vide the chemist report (P10), SP1 confirmed the drugs to weigh 3,797.2 grams of methamphetamine which is listed in Schedule 2 DDA. The drugs found at the house in the black packets labelled ‘James Bond’ were 0.60 grams of MDMA and 0.33 grams of ketamine. The liquid in the ‘Ribena’ bottle was 0.18 grams of MDMA and 0.45 grams of ketamine.

The Prosecution called 12 witnesses. The black Honda Accord was brought to the court compound of the Kuala Lumpur Court Complex on 24.11.2022 and marked as Exhibit P35.

Through SP1 there was no reasonable doubt that the drugs retrieved were those described in the charges. The chemist report (P44) prepared under s399 Criminal Procedure Code (CPC) is admissible. There was also no reasonable doubt raised as to the weight. There was no break in the chain of evidence. All the drugs were positively identified by SP4, SP12 and SP1. The Defence did not throw any challenges as to this element. See Balachandran a/l Selvaratnam v Public Prosecutor [2005] 1 CLJ 85.

For the charge of drug trafficking, the Prosecution submitted that the Accused had direct possession of the drugs in the black Honda Accord. This is based on the evidence that the Accused had in his right hand the remote control of the car. There was no one else in the car and he had alighted from the driver’s seat.

The location of where the drugs were discovered according to the Prosecution which was in a special hidden compartment of the car showed that he knew of the drugs he was in possession of. The Prosecution further relied on the evidence that he was shocked and taken aback at the time of apprehension which the Prosecution submitted showed conduct on his part that displayed his guilt.

As to the drugs found in the apartment, the Prosecution relied on the evidence that the keys and card access to it was found on the Accused’s person. It was him that directed the police to the apartment and no one else was there. The drugs found in the apartment together with his passport showed that he was in possession of them. The prosecution cited few cases which were Public Prosecutor v. Limneswaran A/L Jegathesan [2019] 1 LNS 494, Public Prosecutor v Kenny Chai Sok Peng [2019] 1 LNS 1568 and PP v Vinod Raj Uthayakumar [2019] 1 LNS 845.

The Prosecution implored this Court to invoke the presumption under s37(da)(xvi) DDA that provided that any person in possession of more than 50 grams in weight of methamphetamine shall be presumed, unless contrary is proved, to be trafficking drugs.

In the submissions for the defence, it was stressed that SP12 had the day after the Accused was arrested applied on 25.12.2019 for remand that cited one of the reasons as to locate the accomplice and trafficker. SP12 had also recorded the statement of two member of the public, one Tan Ken Hong [NRIC No: 960910-33-5247] and Chin Yoon Choy [NRIC No; 661108-10-6041]. The evidence adduced at trial was that they had confirmed that they saw one Ng Tze Hao [NRIC No: 911123-08-6199] and one Chan Wai Kit [NRIC No: 870215-10-5731] had used the black Honda Accord two days prior to the Accused’s arrest. It was also witnessed that Ng and Chan had carried a black bag into the car.

The Defence submitted that the Prosecution had failed to show any exclusive possession of the dangerous drugs by the Accused. The Defence challenged the presumption of s37(h) DDA as it was contended that the Prosecution had failed to prove that the compartment at the back of the Honda Accord was classified as special compartment. The Defence pointed out that the witnesses the Prosecution called to testify the normal body for Honda Accord cars (SP9 and SP11) were not experts.

The Alcontara Notice was given to the police at a very early stage according to the Defence that raised reasonable doubts to the Accused’s possession but raised suspicions that the drugs in the car were Ng Tze Hao and Chan Wai Kit’s. The Defendant submitted that the Radhi Direction applied in this case and that the Prosecution had failed to prove that there was wilful blindness on the part of the Accused over the drugs found in the car as well as the apartment.

The Defence additionally invited this Court to invoke adverse inference under s114(g) Evidence Act 1950 when the Prosecution had failed and/or refused to call Tan Ken Hong and Chin Yoon Choy to testify at trial.

This Court was most concerned about the fact that the investigation had knowledge of other people’s purported involvement pertaining the car and the drugs. Evidence shows that it was SP12 who had supplied the names of Ng Tze Hao and Chan Wai Kit when he answered the question as to whom did the public (Tan Ken Hong and Chin Yoon Choy) inform him carried a black plastic bag into the car.

This most certainly created reasonable doubt in this Court’s mind as to the element of possession of the dangerous drugs by the Accused. There were no efforts taken by investigation to even locate Tan Ken Hong and Chin Yoon Choy. With such material information that they have, this Court is left with no choice but to conclude that the Prosecution was hiding something not favourable to them. It is most appropriate to invoke adverse inference against them for the non-calling of Tan Ken Hong and Chin Yoon Choy with regards to the charge of drug trafficking. See Chin Kek Shen v Public Prosecutor [2013] 5 MLJ 827; Munusamy Vengadasalam v PP [1987] 1 MLJ 492; [1987] 1 CLJ 250, Dato’ Seri Anwar Ibrahim v Public Prosecutor [2004] 1 MLJ 177; [2003] 4 CLJ

[23] Moreover, this Court found that the contention that the location of the drugs was a special hidden compartment were not proven by the Prosecution. This case started with the drugs found in the special hidden compartment. But towards the end, in the midst of challenged hurled at the testimonies of SP9 and SP11 on the make of the Honda Accord, the Prosecution had not addressed or replied on s37(h) DDA. [24] In this case, the Prosecution had failed to show that the location was a compartment specially constructed and designed for the purpose of concealment. No experts were called. This Court found that SP9 did not have the necessary qualification, experience, or expertise. In fact, SP9 admitted that he did not have proof that he had ever worked with Honda. SP11 testified he could not confirm that the additional compartment was a result of modification. Their knowledge on the matter was insufficient for this Court to hold them as experts in Honda Accord cars. [25] In concluding this case, it is imperative to address a significant concern that has emerged from the proceedings – the inadequacy of the police investigation that preceded this trial. The role of law enforcement in our justice system is foundational, serving not only to enforce the law but to ensure that justice is pursued with diligence, integrity, and respect for the legal rights of all individuals. [26] Regrettably, in this instance, the investigation conducted was not just inadequate, but egregiously so, falling far below the standards expected of competent law enforcement. This substandard investigation has had severe consequences, not least the unwarranted consumption of precious judicial time and resources, which could have been allocated to other cases where the need for justice is urgent and clear. See Rahmani Ali Mohamad v PP [2014] 6 MLJ 525; Bunya AK Jalong v Public Prosecutor [2015] 5 MLJ 72; 1 [2015] 5 CLJ 893, Pang Chee Meng v. Public Prosecutor [1992] 1 MLJ 137. [27] More critically, this investigation's deficiencies led to the remanding of the accused in custody, an action that, given the insufficiency of evidence, was both unjust and unnecessary. The principle that an individual is innocent until proven guilty is a cornerstone of our legal system. In this case, the evidence presented did not meet the threshold of establishing guilt prima facie, let alone beyond reasonable doubt. This Court’s decision [28] There is reasonable doubt raised on the charge of drug trafficking for the reasons aforementioned. The Prosecution had failed to established a prima facie case for this charge. The Accused is hereby acquitted and discharged of the charge under s39B(1) DDA. [29] However as to the two charges of possession under s12 DDA, this Court finds that the elements have been fulfilled and a prima facie case is made out against the Accused. The Accused is ordered to enter his defence to the said two charges. [30] This Court explained the decision to the Accused in Bahasa Malaysia. The Accused confirmed he understood them. His counsel then explained the three options that are available to him under the CPC. [31] The second and third charges were read to the Accused in Bahasa Malaysia. The Accused confirmed he understood the charges, their nature and consequences of his plea. To each of the two charges of possession under s12 DDA, the Accused pleaded guilty. [32] The Prosecution confirmed the facts as per the findings of this Court. The Deputy Public Prosecutor submitted that the time spent already in prison ought to serve as a lesson for the Accused. [33] This Court sentences the Accused to ten months imprisonment for each charge. Both ten months imprisonment sentences are to run concurrently. Effective from the date of his arrest. The Accused was hereby free to go. DATED 21 DECEMBER 2023 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA KUALA LUMPUR For the Prosecution: DPP Fatin Hanum Abdul Hadi DPP Nik Mohd Fadli bin Nik Azlan DPP Mohamad Shahrizzat bin Amadan Deputy Public Prosecutors For the Accused: Maanveer Singh Dhillon and Intern Lim Sheng Zhen T/n Maanveer Singh Dhillon & Co.