[Pendakwa Raya] v Chong Kok Choy (BA-45-22-07/2019)

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CHONG CHEE WAH …TERTUDUH PERBICARAAN JENAYAH NO: BA-45-21-07/2019 PENDAKWA RAYA …PENDAKWAAN

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CHONG JIA XIN …TERTUDUH PERBICARAAN JENAYAH NO: BA-45-22-07/2019 PENDAKWA RAYA …PENDAKWAAN

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CHONG CHEE WAH …TERTUDUH PERBICARAAN JENAYAH NO: BA-45-22-07/2019 PENDAKWA RAYA …PENDAKWAAN

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…TERTUDUH GROUNDS OF JUDGMENT Introduction of prosecution case [1] All 6 accused were initially charged by the Public Prosecutor with a charge of trafficking and charges of possession of drugs under the Dangerous Drugs Act, read with section 34 of the Penal Code. This Court having heard the witnesses and having perused the documentary evidence, at the close of the prosecution case came to a finding that the drugs were found in 2 separate locations, the first discovery was said to be at a house and the second, in a car. [2] As the charges of the drugs found in the house were not before this Court added with the opening statement not disclosing anything to this effect and with the absence of any submissions by the prosecution on the relevancy of the evidence pertaining to the drugs found at the said house to the charges of the drugs found in the car either in the opening statement nor in the course of the trial), the accused persons being OKT4 to OKT6 charged in case BA-45A-51-05/2019 (trafficking charge) and case BA-45- 22-07/2019 (possession charge) were found by this Court, not linked to the drugs in the car hence acquitted and discharged at the close of the prosecution case without defence being called. [3] For clarity and completeness, it is necessary to highlight that as trial progressed, the defence particularly OKT1 objected to some of the facts relating to the drugs found in the house that were captured in the witness statements of the raiding team. Having heard submission by the counsel for the accused and with the prosecution not putting forward any objection to the defence’s move to have the said facts removed, this Court expunged partially those facts relating to the drugs recovered at the house as being prejudicial and irrelevant. This is merely to explain the deletion found in those witness statements of the raiding team. [4] The drugs found in the car, were discovered in 2 places being in “a red bag” seen “thrown into” the car by OKT1. Two bags were recovered “close to” OKT3 who was the front passenger and OKT2 was the driver. The two bags each contained 110 and 90 plastic packets totalling 110 grams of Ketamine (which formed the trafficking charge) and 24 grams of 3,4 Methylenedioxymethamphetamine (MDMA) which formed the possession charge. The other possession charges of 21grams of Ketamine and 4 grams of 3,4 MDMA relate to the drugs found in 47 plastic packets hidden in a speaker in the car boot. Pandan Indah Report 18603/18 tendered as P45. [5] The words in the inverted commas above formed part of the facts in issue as to whether a bag or two bags were initially seen by the raiding team held by OKT1, whether OKT1’s action was throwing the bag or bags or handing the bag or bags to OKT3 and the position of the bag or bags when recovered in the car. [6] The charges are as follows: Trafficking charge BA-45A-51-05/2019 of 110grams of Ketamine found in 200 plastic packets in “the bag or bags” “close to” OKT3: “Bahawa kamu bersama-sama pada 10 Oktober 2018 jam lebih kurang 7.50 malam di Persimpangan Jalan Perdana 4/3, di dalam Daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Ketamine berat bersih 110 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan”. 1st charge of possession BA-45-21-07/2019 of 21 grams of Ketamine against OKT2 and OKT3 (drugs in the boot): The charge reads as above to cater for the drugs analysed to be 18 grams of Ketamine in 37 yellow plastic packets written “CAUTION” marked as “LC2 to LC38” and 3 grams of Ketamine in 10 silver plastic packets written “CAUTION” marked as “LC39 to LC48”, recovered hidden in a speaker inside the car boot. 6 2nd charge of possession BA-45-22-07/2019 of 24grams of 3,4 MDMA against all the accused (drugs in the bag or bags seen thrown or handed over by OKT1) The charge reads as above to cater for the drugs analysed to be 13 grams of 3,4 Methylenedioxymethamphetamine (MDMA) in 110 yellow plastic packets written “CAUTION” marked as “LA2 to LA111” and 11 grams of 3,4 MDMA in 90 yellow plastic packets written “CAUTION” marked as “LB2 to LB91”, recovered from “the bag or bags” found “close to” OKT2 in the car. 3rd charge of possession BA-45-22-07/2019 of 4grams of 3,4 MDMA against OKT2 and OKT3: (drugs in the boot) The charge reads as above to cater for the drugs analysed to be 3 grams of 3,4 MDMA in 37 yellow plastic packets written “CAUTION” marked as “LC2 to LC38” and 1 gram of 3,4 MDMA in 10 silver plastic packets written “CAUTION” marked as “LC39 to LC48”, recovered hidden in a speaker inside the car boot. Prosecution evidence [7] Acting on information received by SP8 ASP Mohd Faizal on 10.10.2018 at about 1000hrs he received the information from Bukit Aman intelligence as follows (as produced in the witness statement PSP8): “3. Pada 10.10.2018…terima maklumat … berkenaan aktiviti pengedaran dadah yang akan berlaku pada 10.10.2018 jam lebih kurang 1700hrs sehingga 2000hrs bertempat di sekitar Jalan Perdana 43, 55300 Kuala Lumpur. Pengedaran ini melibatkan seorang lelaki Cina yang tinggal di alamat no.15-3A, Jalan Perdana, 4/8 Pandan Perdana, Cheras Kuala Lumpur. Rumah lelaki Cina tersebut juga disyaki menjadi tempat pengedaran dadah. Pengedaran dadah ini akan berlaku di mana lelaki Cina tersebut akan membuat serahan barang disyaki dadah kepada seseorang menaiki kereta jenis Mazda no. pendaftaran WXF 4020”. [8] No objection was raised by any of the counsels for the accused on this paragraph. Counsel for OKT1 and OKT2 in fact, cross-examined SP8 on this. There were other paragraphs in PSP8 objected to by the defence being parts of paragraph 9 to paragraph 15. These statements contained the discovery of a key to house No. 15-3A Jalan Perdana, found in the pockets of the pants worn by OKT1 who then led the raiding team to the said house where packaging of substance believed to be drugs, by a few other suspects, were taking place. [9] The prosecution agreed to this objection. This Court having scrutinised the statements in those paragraphs added with the stand by the prosecution not objecting to the defence’s submission, agreed that the said statements be expunged as the statements being prejudicial. Although there was no objection on the statement in para 3 PSP8 as extracted in para 7 of this judgment, a similar ruling would apply to this statement, it having the same prejudicial substance (see: Alcontara Ambross Anthony v PP [1996] 1 CLJ 705 (FC) information of an Indian transporting drugs in an identified car ruled inadmissible and prejudicial, Emery Shazmal Abd Malek v PP [2016] 9 CLJ 644 (COA) on urine test being positive but charge not before the court ruled to be prejudicial). [10] With this deletion, the evidence of SP8 can be summarised to be that acting on information received, a group of surveillance team in 3 patrol cars were directed to the vicinity of Jalan Perdana 4/3 with all 3 to take their respective position at the car park in front of Vietnam Restaurant, car park in front of the 7 Eleven and car park in front of the workshop near Abadi Restaurant Abadi. [11] At about 1945hrs SP8 saw a Mazda car number WXF 4020 stopping at the junction of Jalan 4/3. At the same time, a Chinese man (later identified as OKT1) was seen walking in front of the row of shops, in a suspicious manner non-stop looking left and right whilst carrying with him “bag” slung on his right shoulder, and heading towards the junction of Jalan 4/3. [12] Instruction was given by SP8 to the surveillance team positioned at the front of 7 Eleven headed by D/Sjn Guna (SP11), for all to make any arrest should there be delivery made between the man and the car. SP8 was then notified by SP11 that SP11 saw a Chinese man (OKT1) delivered the bag through the car window, to the passenger seated at the front. [13] SP8 then ordered for the ambush with 2 patrol cars headed to the centre of the junction to obstruct any getaway whilst SP11’s team then successfully apprehended the Mazda car. OKT1, however attempted to escape by running away at the row of shop houses but was subsequently arrested in front of Hangat Supermarket and was brought to the car. [14] On a body search done on OKT1, a set of keys were found in the pocket of his pants. Evidence was adduced in the witness statement PSP8 to show that this set of keys were the house key of No. 15-3A, Jalan Perdana but was included in parts of the statement earlier expunged by this Court having agreed with counsel for OKT1 that the charge in relation to the drugs found in that said house irrelevant for the purpose of the present charge. On inspection of the car, SP8 found OKT3 seated at the front passenger and OKT2 was the driver. [15] SP8 also recovered 2 bags in red when SP8 opened the left front door. The cross-examination questions by OKT1 also admitted 2 bags were handed by OKT1 but no personal belongings of OKT1 found in these 2 bags. This Court observed that no further questions were asked by the prosecution to SP8, on the specific position of the 2 bags when recovered, neither was this stated in the search list P46. P46 merely states “di dalam kenderaan WXF 4020”. SP11 D/Sjn Guna’s testimony on this as to the exact position of the 2 bags recovered, doubtful. This Court is of the view that this is crucial to explain custody or control of the bags if knowledge on the part of OKT3 of the contents of the bags, may follow. This is equally linked to explain the act of OKT3 in responding to OKT1’s action of either “throwing” or “handing” the bags to OKT3. [16] Further inspection of the car, SP8 recovered a black speaker in the boot hidden in it 1 black plastic containing 37 yellow coloured packets written “CAUTION” and 10 silver coloured packets containing substance believed to be drugs. 2 red plastics each containing 4 and 5 wraps of 5 bottles of ‘Vitagen’ drink believed to contain drugs (see: search list P48) [17] The 2 red bags in the car each contained 110 plastic packets and 90 plastic packets of substance analysed by the chemist SP9 to be Ketamine of 110 grams and 3,4 MDMA of 24 grams. The 47 packets in the boot contained Ketamine of 21 grams and 4 grams of 3,4 MDMA. No traces of drugs found in the ‘Vitagen’ drinks. [18] The Mazda car belonged to Mohd Adil Bin Mohd Mahayudin SP2 but since 24.2.2018, the car with its set of keys were no longer with him as they were handed over to one Chong Chee Wah (OKT6) and subjected to an agreement with the said one Chong Chee Wah to continue payment of the said car to the bank (see: P19 Agreement between Mohd Adil and Chong Chee Wah of Eko Indra Jaya Holding Sdn Bhd). A police report as protection to himself was lodged by SP2 tendered and marked as P18. [19] SP11 D/Sjn Guna’s testimonies on the relevant and admissible facts, was consistent with SP8’s testimony and most importantly, said he was 20 meters away form OKT1 and saw OKT1 handed the red bag to the front passenger of the car. SP11 said he also saw OKT2 pulled down the car window and was smiling when she received the bags from OKT1. When cross-examined only did SP11 say he saw 2 red bags on the floor of the passenger side when he opened the front door of the said passenger. Challenge by the defence: Findings by this Court [20] The defence challenged the version given by both SP8 and SP11 to suggest that to the contrary, the correct version of the story was as follows: a) that SP11’s version to say that he was able to see OKT3 unwind the window of the passenger was ultimately admitted by SP11 that he in fact could not see as it could either be OKT3 passenger or OKT2 driver, having agreed that the windows are power windows which function by automatic operation and not manually; b) the act of OKT1 when delivering the bags was throwing and not hand over but disagreed by SP11; c) SP11 unable to see OKT3 smiled at OKT1 to give rise to an inference of OKT3’s familiarity with OKT1 or OKT1 known to OKT3 but this was disagreed by SP11; d) As to exhibit P19, the original owner SP2 agreed he had never met with Chong Chee Wah, said to be OKT6. [21] SP7 Tan Yoke Neng a representative from Eko Indra Jaya Holding was called to confirm the handing over of the Mazda car to Chong Chee Wah. However, the identity of OKT6 and the handing over of the car to OKT6 remains unsubstantiated, as this Court agrees with the defence that whether the ownership of the car had passed from SP2 to OKT6 via SP7 remains unproven by the prosecution. This is arrived at as there some disparity in relation to the signatures of the seller at page 5 of P19. Both SP2 and SP7 agreed the signature at the top and the signature at the bottom left were different with both pointing the said signature at the top belonging to the other. [22] The re-examination however, did not explain this difference. Instead, SP7 maintained he saw OKT6 signing P19. SP2 on the other hand clearly said he had never met with OKT6, did not say anything to the effect that he (SP2) was present at the time of signing P19. The identity of the purchaser OKT6 in the accused dock was never identified as the same Chong Chee Wah by SP2 despite SP2 in communication with OKT6 to remind OKT6 when in default of monthly payment as no phone bills of SP2 tendered. [23] The difference in the signature on P19 was not explained by both SP2 or SP7. Due to the absence of OKT6’s identification by SP2 at the trial, the finding reached by this Court despite the presence of the identity card number of OKT6 in P19 and the absence of any suggestion by the defence that OKT6’s IC was lost or his data compromised, and although it was said by SP7 that they (SP7 and OKT6) were together to lodge a police report P40 as cover for the handing over of the car to OKT6 that took place on 24.2.2018, the burden remains with the prosecution to prove the element of possession of the car on OKT6. [24] All that was proven was what happened on 24.2.2018. There is a gap as to who had possession, custody or control of the car from February 2018 to the date of the arrest October 2018. No registration card of the said car was tendered nor any receipts by the Hong Leong Bank significant to the agreement P19 was produced to show who paid those instalments. [25] As to OKT3’s defence, she had her cautioned statement tendered through the Investigating Officer SP12 and marked as D64. Her cautioned statement states that she asked OKT2 for a lift to a temple in Ampang for her prayer and on reaching Jalan Perdana 4/3, OKT2 stopped the car and OKT2 unwind her window. A Chinese man (OKT1) then thrown 2 red bags through her window. D64 would become relevant to the challenge put forward by the defence on the manner the 2 bags were delivered alleged by OKT3 intended for OKT2. [26] At this juncture, D64 although may show consistency, remains to be tested by cross-examination of OKT3 and based on Ali Hossein Basher v PP [2015] 1 CLJ 918 COA at page 928, in the judgment by Abdul Rahman Sebli JCA emphasized the necessity for the defence to put their case to the prosecution but qualify the position of such suggestion as follows: “[23] It must be understood that what counsel puts or suggests to a witness in cross-examination is not evidence. They are merely suggestions and to give notice to the prosecution that the defence has a different version of the events. They prove nothing and will remain nothing unless confirmed by the witness or by the party on whose behalf the suggestions are made when his turn comes to give evidence”. [27] With this in mind and based on the totality of the evidence adduced by the prosecution, this Court concluded to the extent as follows: a prima facie case proven: A. Trafficking charge of 110grams Ketamine and possession of 24grams of 3,4 MDMA i. OKT4-OKT6 acquitted and discharged as no evidence available to link all OKT4-OKT6 with the drugs found in the bags handed by OKT1 to OKT3 and/or OKT2; ii. OKT1 to OKT3 called to enter their defence as OKT1 to OKT3 were found to be in custody and control of the 2 bags found on the floor of the Mazda car as OKT1 was seen holding those bags and handed them to OKT3 and subsequently recovered on the floor of the car near OKT3; iii. OKT2 was in custody and control of the particular car; iv. Having been in custody and control of the car and the bags, moved this Court to invoke the presumption of knowledge and possession under section 37(d) of the Act.1 This satisfy the charge of possession of 24grams 3,4 MDMA and 110grams of Ketamine; v. The trafficking charge of 110gram Ketamine further attracts the section 2 act of delivery and transporting with intend to transfer possession of those drugs from one individual to another against OKT1 to OKT3 (see: PP v Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129); vi. Irrespective of the drugs contained in aluminium packets, knowledge is proven by way of the presumption under section 37(d). B. Possession of 21grams of Ketamine and 4 grams of 3,4 MDMA [28] For the drugs hidden in the speaker, OKT2 and OKT3 were called to enter their defence as both were travelling in the said car. The nature of the packets in the 2 red bags found on the floor of the car and the packets hidden in the speaker are of the same packaging with the brand “CAUTION” on these packets hence it cannot be said to be a mere coincidence. 1 Section 37. Presumptions. In all proceedings under this Act or any regulation made thereunder— …

any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug [29] With the key to the car in OKT2’s custody and OKT2 having control of the car by driving it and OKT3 receiving from OKT1 the 2 bags containing similar packets found in the speaker in the boot, OKT3 had placed the 2 bags on the floor near her seat, this goes to show that OKT3 similarly had control and custody of the car as otherwise OKT2 would have indicated where to place the 2 bags but in the absence of any suggestion to the Investigating Officer SP12 of such, it can be deduced that it did not transpire in this manner. [30] This shows OKT3 was able to exercise her own option where to place the bags and chose to place them close to her. This equally shows custody and control by both OKT2 and OKT3 of the car and the speaker in the car. The same presumption under section 37(d) is triggered as both OKT2 and OKT3 are in custody and control of the car and thus, are deemed to be in possession of the drugs in the speaker and deemed to know the nature of the drugs. Defence story of OKT1 [31] OKT1’s defence was that on that day, he was at his friend’s house known as Goh Teik Kok. OKT1 wanted to eat out and have his meal at a nearby restaurant and Goh had sought help to deliver a bag to a friend named as OKT2 but unfamiliar or a stranger to OKT1. This bag was identified by OKT1 when exhibit P11 photo (1) of a red bag with aluminium packets in it was shown. Up to this extent, the statement by OKT1 that he was asked to deliver just one bag is consistent with his identification of the photo of the bag in P11(1). [32] Goh said he had given OKT2 the phone number of OKT1 and said OKT2 will be in touch with OKT1. Goh had also given a set of his house keys to enable OKT1 easy access to the house. OKT1 said he did not know the contents of the bag although he could see the look alike drink packets in the bag. No further questions were asked by OKT1 to Goh. [33] On reaching the restaurant, OKT1 received a call from OKT2 notifying OKT1 of OKT2’s arrival in silver Mazda car, its registration number and asked OKT1 to proceed to the said junction. OKT1 walked to the junction and turned left and right to cross the road when a silver Mazda slowly approached OKT1 before stopping. The man in the car then introduced himself as OKT2 and asked for the bag. OKT1 said he was unable to see if there were anyone else in the car as it was dark. [34] OKT1 then handed the bag and suddenly an unmarked car appeared and blocked the Mazda. OKT1 was shocked as the Mazda car was ambushed by many plain clothes men. OKT1 thought they were gangster and ran. He was apprehended not far away by 2 men known later to be policemen and brought back to the junction where the Mazda car was. OKT1 said he and OKT2 with OKT3 were brought to the police station. Cross-examinations of OKT1 and findings by this Court [35] OKT1, although agreed he was just about 3 feet away from the car, was unable to see inside the car as it was dark. When crossed-examined further by the DPP, OKT1 agreed that the light inside the car was in fact on. OKT1 also said he did not hand over the bag but in fact threw the bag into the car through the window. OKT1 also changed his version to say that when OKT1 was reaching the junction it was Goh who had called him informing of the arrival of the car and not OKT2. [36] A big part of OKT1’s testimony is inadmissible being hearsay as the purpose of OKT1’s statement on Goh is to refute knowledge on the part of OKT1 of the contents of the bag and to show the arrival of the Mazda car was by arrangement between Goh and OKT2, these therefore aimed at the truth of the statement. As Goh was not called, these resulted in the statements being merely hearsay evidence, thus inadmissible (see: PP v Dato Seri Anwar Bin Ibrahim (No.3) (1999) 2 MLJ 10). [37] When cross-examined by OKT2, OKT1 then changed his story and said OKT2 called him (OKT1) and told OKT1 that he (OKT2) will be in a silver Mazda and he (OKT2) will unwind the window and asked OKT1 to throw a bag into the car as OKT1 said there will be a number of cars on the said road and he would be unable to stop. [38] OKT1 in fact agreed with the suggestion by the DPP that OKT1 had thrown 2 bags (instead of one) to Goh’s friend (OKT2) through the window on the passenger side. OKT1 when cross-examined further by OKT2 in fact, said he waved to the Mazda car when he saw the car before the window of the passenger being unwind opened and OKT1 proceeded to throw the bags in. [39] The inconsistent testimony by OKT1 of the phone conversation which initially suggesting it was Goh then finally changed to OKT2 who made the call to OKT1, to this Court’s finding, apart from it being inadmissible evidence, also being unreliable as in addition to Goh not called as witness, no phone bills were tendered to prove who actually made the call. [40] Counsel for OKT2 subpoenaed the registrar of the lower court SD2 to tender the notes of proceeding (NOP) of the Ampang Session Court case BC-S2-62D-36-10/2018 relating to the forfeiture of property charge under section 3(1)(A) DDA (FOP) of house no 15-3A Jalan Perdana 4/8 (see: D66-D74). OKT1 pleaded guilty in this forfeiture case. [41] OKT1 objected to this move on the basis that the facts in the witness statement of SP8 pertaining to the drugs in the house were expunged as being prejudicial and irrelevant, furthermore the FOP incident happened on a different date hence this action by counsel for OKT2, merely a move to paint a bad picture of OKT1’s character. The prosecution submitted that the said FOP NOP being relevant to show knowledge. Counsel for OKT2 submitted that the exhibits P1 to P6 being relevant to this present case. Exhibits P1 to P6 are inclusive of the Pandan Indah Report 018603/18 tendered as P3 in that FOP case and in this present case as exhibit P45. [42] Counsel for OKT2 submitted the basis for the NOP being relevant specifically on the application of the Evidence Act 1950 and vital for it to be admitted under which provision of the said Act. This Court, observed that apart from Pandan Indah Report P45 and P3 being one and the same report, this Court noted that contrary to the submission by counsel for OKT1, the FOP action and this present charge relate to one and the same incident on 10.10.2018 as OKT1 then led the raiding team to house No.15- 3A Jalan Perdana 4/8. [43] Having heard submissions by all parties, this Court admitted the NOP of the Session Court. The case of PP v Mohamad Roslan Bin Desa Criminal Appeal No. K-05-47-2005 reported in [2011] 4 MLJ 826 a decision by the Court of Appeal, referred to by counsel for OKT1 was overturned by the Federal Court on 18.1.2010 in Criminal Appeal No. 05- 28-2007(K) comprising of Arifin Bin Zakaria CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak) and James Foong Cheng Yuen (see: [2010] MLJU 2237). [44] In any event, the tendering of the FOP NOP is merely relied upon by this Court to show the key found on OKT1, is to house No.15-3A Jalan Pandan Perdana, and nothing more. Other facts contained in the “Fakta Kes” tendered as P1 in the FOP proceeding to show processing of drugs are not relied upon by this Court as those facts contained in the witness statement of SP8 was already ruled by this Court as prejudicial and irrelevant. [45] In any event, the presumption under section 37(d) was invoked by this Court at the close of the prosecution case, to satisfy the element of knowledge of the drugs in the packets in the bag thrown into the car. Thus, the FOP NOP did not operate to cloud this Court’s mind to show OKT1’s guilty knowledge but OKT1’s own inconsistent testimony in Court which was admitted by OKT1 himself, that moved this Court to conclude that OKT1 had failed to rebut the presumption of knowledge and possession. [46] This being the case, OKT1 had failed to rebut the presumption of knowledge and possession under section 37(d). This renders the trafficking charge under section 2 remain intact and proven beyond reasonable doubt. Defence of OKT2 [47] The cross-examination of OKT2 against OKT1 suggest that OKT1 intended to deliver the bags to his son Chong Chee Wah OKT6 who would be coming in the Mazda car. Further, OKT1 agreed with the suggestion by OKT2 that with the recovery of a set of house keys, OKT1 was brought to the said house but, OKT1 had not disclosed the name of OKT2 as one of the suspects to the raiding team. This suggests absence of knowledge on the part of OKT2. [48] This Court is of the view that firstly, there was no suggestion to the prosecution witnesses that the driver of the Mazda car being OKT6 and not OKT2. Hence, this is a belated defence on identity. Secondly, the examination in chief of OKT2 himself confirmed the fact that he (OKT2) was the driver of the Mazda car that material time. Although it was said by OKT2 borrowed from a friend, it was 4-5 days ago before the ambush or arrest. Thirdly, the non-disclosure by OKT1 of OKT2 as a suspect when the house was raided, is immaterial as the raid at the said house only took place after the arrest of all the three accused at the junction. This means, the identity of OKT2 already known as the driver having custody and control of the car. [49] As highlighted earlier, the NOP of FOP is not used to lend support to the evidence of knowledge on the part of OKT1 as it was a move initiated by counsel for OKT2 and not the prosecution. It is therefore a game of shifting the blame to another accused and not for the purpose of rebutting the defence tasked on the prosecution’s shoulder. OKT1 and OKT2 are known to each other as the consistent fact from the both of the accused that OKT1 waved to OKT2 who was in the Mazda car was mutually supported by OKT2. [50] Hence, OKT1’s evidence that he was unable to see who was in the car, found by this Court to be improbable. OKT2 also said in cross-examination that she and Chong Chee Wah (OKT6) were not good friends yet OKT2 said in his EIC that he was in custody of the car for about 4-5 days. Yet, in cross-examination, he disagreed with the fact that he had custody and the period of custody to be 4-5 days. [51] In the absence of any other evidence from OKT2 to explain how he was in custody of the Mazda car; this Court ruled that OKT2 has failed to rebut the presumption of knowledge and possession under section 37(d) on balance of probability and failed to raise a reasonable doubt on the section 2 charge. Defence of OKT3 [52] OKT1 agreed that the act of OKT1 throwing the bag and the Mazda car being apprehended happened within a short time of 30 seconds. OKT1 furthermore, agreed with the suggestion by counsel for OKT3 that there was no other car that was involved in restraining the Mazda car from leaving the scene but the Mazda car was in fact stopped by a group of people. [53] As these suggestions were only raised for the first time during the defence case and not earlier, this moved this Court to rule that the suggestion as belated. However, as OKT1 had given his answers to these questions and particularly on the short span of time between the throwing and the arrest being consistent with both OKT1 and OKT3’s version, the late disclosure only goes towards the weight to be attached to this evidence. More so, SP11 agreed that the ambush of the car was done immediately upon OKT1’s delivery of the bags. [54] This is added with OKT3’s version to explain her presence in the car on that day was first contained in her cautioned statement D64, being the first opportunity, she could avail herself to. This same reason for her (OKT3’s) presence in the car was repeated by her witness (SD4 who confirmed OKT3’s version that she was on her way to a temple for prayer). The version explaining OKT3’s presence in the car to attend a prayer and sought for a lift from OKT2, was not denied by OKT2 but reinforced it. Furthermore, OKT2 admitted that he was the person who had un-wind the window. On OKT3’s explanation of purpose she was present, OKT2 similarly repeated the same reason as given by OKT3. [55] On this basis, this Court concludes that OKT3 had rebutted the presumption of knowledge and possession under section 37(d). Such being the case, OKT3 has raised a reasonable doubt to the prosecution case and is acquitted and discharged of all charges. Sentencing of OKT1 and OKT2 [56] Before sentence was passed, this Court invited parties to submit and mitigate on what the right and appropriate sentence to be passed on both the accused. Having heard both the mitigation put forward by the both counsels for OKT1 and OKT2 and the submission by the prosecution who candidly did not seek for a death sentence but instead moved for an appropriate sentence be passed, this Court imposed the following: Trafficking charge of 110grams Ketamine against OKT1 and OKT2 section 39B 30 years imprisonment with OKT2 be whipped 12 strokes. OKT1 escaped the whipping sentence because of his age Possession charge section 12(2) punishable section 12(3) of 24 grams of 3,4 MDMA against OKT1 and OKT2 5 years imprisonment Possession charge of 21grams of Ketamine under section 12(2) punishable under section 39A(1) against OKT2 5 years imprisonment and 3 strokes of whipping Possession charge section 12(2) punishable section 12(3) of 4 grams of 3,4 MDMA against OKT2 5 years imprisonment All sentences of imprisonment to run concurrently. Ketamine: how much is a lot to trigger trafficking or enhanced penalty [57] It is vital to highlight that upon perusal of the provisions in the DDA in totality, it is apparent that Ketamine is a drug that does not attract an increased penalty based on the prescribed amount of the drug, unlike certain other drugs such as cannabis or heroin. It is not catered under the presumption of trafficking in section 37(da) because there is no prescribed weight neither is it catered under the increased penalty section 39A(1) nor 39A(2). It is however, listed in part III of the 1st schedule of section 12(2). [58] Be that as it may, the Public Prosecutor in his wisdom in so far as the 21grams of Ketamine is concerned, in this particular case had opted for the penalty under section 39A(1) when issuing the transmission certificate under section 41A(1) of the Act. This, in fact was the reply by the learned DPP when queried by this Court, on the position of this drug Ketamine when a charge under 12(2) punishable under 39A(1) was preferred as opposed to 3,4 MDMA of 24 grams merely carry the charge under section 12(2) punishable under 12(3), despite it is punishable under section 39A(1) if more than 5 grams but less than 30, in accordance with the weight prescribed by the said section. [59] This Court, having looked at the totality of the evidence, formed the view that either this was an oversight on the part of the Public Prosecutor when a 12(2)/39A(1) and 12(2)/12(3) were erroneously interchanged or a matter of act of discretion by the PP exercising his power envisaged by the Federal Constitution. [60] Having looked at the provisions of the DDA and the facts in this case, the drugs Ketamine of 21grams against OKT2 (OKT3 was given an acquittal) be it in section 12(2)/12(3) or 12(2)/39A(1) relate to a charge of possession, which this Court came to the said finding and conviction entered. The distinction is merely a section 39A offence carry a whipping sentence. The passing of the 3 strokes of whipping sentence by this Court is merely to comply with the section 39A provision. Signed (NURULHUDA NUR’AINI BTE MOHAMAD NOR) Judge High Court of Shah Alam (Criminal 3) Selangor Darul Ehsan Date: 29th October 2024 COUNSEL For the prosecution: Mohd Mukhzany Fariz Deputy Public Prosecutor Pejabat Penasihat Undang-Undang Shah Alam Selangor Darul Ehsan For the accused No. 1: Suzana Ismail Messrs. Suzana Ismail & Partners Advocates & Solicitors No. 26, Jln. Galena 7/24, Alam Villa, Seksyen 7 40000 Shah Alam Selangor For the accused No. 2: Stanley C. Augustin Messrs. Stanley Augustin & Co Advocates & Solicitors No. 21, Jln 11/5 46200 Petaling Jaya Selangor For the accused No. 3: S. Narasimhan Messrs. Narasimhan & Associates Advocates & Solicitors No. 2-2-2 Pangsapuri Seri Gembira Jalan Trolak 9, Taman Bamboo 51200 Wilayah Persekutuan