[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v LOKE SEEN YOONG (WA-45A-25-03/2021)

High Court of Malaysia31 Jan 2024

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1 THE HIGH COURT OF MALAYA IN THE FEDERAL TERRITORY OF KUALA LUMPUR (CRIMINAL DIVISION) CRIMNAL TRIAL NO. WA – 45A – 25 – 03/2021 BETWEEN PUBLIC PROSECUTOR AND ACCUSED LOKE SEEN YOONG JUDGMENT Background Facts and Charges [1] The accused in this case faces two separate charges, for two separate and distinct offences. They were jointly tried pursuant to section 165 (1) of the Criminal Procedure Code (CPC/Act 593), as the offences committed by the accused was committed in the course of one single transaction, in view of proximity of time, place, continuity of action and common design to be in possession and trafficking of dangerous drug. [2] The offences committed are: • trafficking of dangerous drug methamphetamine (meth) weighing 191.6 grams pursuant to section 39B (1) (a) of the Dangerous Drugs Act 1952 (DDA/Act 234) and punishable under section 39B (2) of the DDA (P2A – first charge); • possession of dangerous drug meth weighing 4.41 grams pursuant to section 12 (2) of the DDA and punishable under section 12 (3) of the DDA (P2B – second charge). [3] The impugned drugs as stipulated in the charges were found in the following places: • in the trouser pocket of the accused worn by him, which was tendered as exhibit P9A and P9B, weighing 4.41 grams and • another in one black plastic bag on the floor mat at the passenger’s side of the car, next to the driver’s seat, which was tendered as exhibit P10 and P11 (1-5), weighing 191.6 grams. [4] The car in which the impugned drug was found, bearing registration no. WPD8168, owned by the accused, was in fact driven by him. He had alighted from the car at point of arrest and raid. He was in control of the car at the material time of arrest, raid, search and seizure of the impugned drug. Proof required [5] In order prove the offence of drug trafficking, the prosecution bears the burden of proof, and it has to prove beyond reasonable doubt of the following: • firstly, the accused was in possession of the dangerous drug; • secondly, he has knowledge of the nature of the said impugned drug found in his possession at the material time of arrest, raid search and seizure; • thirdly, he was in mens rea possession of said dangerous drug for the purpose of trafficking. If the prosecution fails to prove any one of these ingredients of the offence, the accused could be acquitted of the preferred charge for an offence of drug trafficking against him. [6] For the offence of possession of the impugned drug, the prosecution bears the same burden that the accused was in mens rea possession of it and that he has knowledge of its nature. Decision at end of the case of prosecution [7] This court, after having heard the witnesses for prosecution whom were all subjected to vehement cross-examination and after evaluating their testimony on a maximum evaluation basis on their credibility as witnesses; quality and reliability of their evidence as proof of each ingredient of the offences committed by the accused for the two preferred charges against him, has to arrive at a finding that there is credible evidence pursuant to section 180 (4) of the CPC, to make out a prima facie case against the accused pursuant to section 180 (1) of the CPC. [8] On the offence of possession of dangerous drug meth, found inside the trouser pocket of the accused, obviously he was in physical possession of it, as the drug was found inside his trouser pocket, worn by him. Inferentially, in the absence of evidence in rebuttal, he has knowledge of its nature as a dangerous drug. Thus, the accused was in mens rea possession of the said dangerous drug, forming subject matter of the second preferred charge against him. [9] On possession of dangerous drug meth, at point of arrest, raid, search and seizure, it was contained in one black plastic bag (P10) on the floor mat of the passenger’s side which is next to his seat in the car bearing registration number WPD8168, owned and driven by the accused. At point of his arrest, there was no one else inside the car. Ensuing from that, this court was able to make an affirmative finding of possession of the said dangerous drug with ease. As he owns the car, and at the material time he was also in control of the said car, inferentially he ought to have known what he was carrying in his car. As owner of the car, he has the power not to accept anything contraband (at any point of time) including the dangerous drug from being placed in his car. He has even the choice to have the contraband removed, if he finds it in his car, and it does not matter who leaves it behind in his car. Moreover, the impugned drug was not found hidden or concealed but in an open and conspicuous manner. The impugned drug was not found far away from him but just next to him on the floor mat of the passenger seat, which points to a circumstance, which is unrebutted that he has knowledge of the nature of the said drug. [10] There has also been unrefuted proof that the impugned drugs found inside his car and on his body inside his trouser pocket, were in fact seized from him, and the same was later produced in court as exhibits, forming evidence in support of the two preferred charges against him. [11] To reiterate, proof as to knowledge of the nature of the impugned drug found on him and inside the car, forming the mental element of the offence or mens rea, need not be direct but could be inferred from the circumstances in which it was found on and with him. The pivotal fact is, he was alone with the said drugs. Moreover, the black plastic bag containing the impugned drug were in small five (5) plastic packets, which per se brings about an inference that it was readily packed for distribution. The manner in which it was found constitutes an overt act on the part of the accused which points to possession for the purpose of trafficking. Obviously with that weight of meth, it is definitely not meant for personal consumption but for distribution. [12] Flowing from the above, for the first preferred charge of drug trafficking, this court was able to arrive at an affirmative finding of mens rea possession of the impugned drug meth, and by virtue its weight 191.6 grams, the presumption of trafficking pursuant to section 37 (da) (xvi) of the DDA (50 grams or more in weight of meth) is applicable, and it is for the accused to rebut or displace it on a balance of probabilities. [13] Premise on that plank, pursuant to section 180 (4) of the CPC read together with section 180 (1) of the same, the accused was ordered to enter on his defence to both the preferred charges against him pursuant to section 180 (3) of the CPC. Case of the defence [14] Sequentially, the three options available to the accused under the law was read and explained to him, in the Cantonese dialect he understands. He chose to testify from the witness box and subject himself to cross-examination by the prosecution represented by the deputy public prosecutor (DPP). In law, he is also entitled to call his own witness or witnesses to testify on his behalf, to bolster his defence. [15] Ensuing from that, the accused defended himself by testifying in the witness box and also tendering supporting evidence by calling his brother SD2 as his witness. By virtue of the finding made at the end of the case of prosecution that a prima facie case has been established, it is understood in law that there has been credible evidence proffered on the following: • The subject matter of the charges has been confirmed by the chemist SP4 as meth, a dangerous drug pursuant to the DDA. • The chain of evidence from the point of time the drugs were picked up at the scene of crime by the raiding officer SP1 and subsequently handled by the chemist and investigation officer remained unbroken, as the same drugs were also produced in court as proof against the accused. • The dangerous drugs are found to be in mens rea possession of the accused. • That constitutes the charge of possession pursuant to section 12 (2) of the DDA against the accused. • For the charge of trafficking of dangerous drug, the statutory presumption of trafficking pursuant to section 37 (da) (xvi) DDA applies. Burden of proof [16] It is settled law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offences with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case. In the course of the prosecution case, like the present, the statutory presumption of trafficking could be relied on to prove the essential ingredient of trafficking for the first preferred charge. When that occurs, the particular burden of proof as opposed to the general burden shifts to the accused to rebut such presumption on a balance of probabilities. Therefore, for the preferred charge for an offence of drug possession, the accused has to only raise a reasonable doubt on the proven case by the prosecution and/or his guilt. Whereas, on the preferred charge of drug trafficking, he bears a heavier burden of proof to displace the statutory presumption of trafficking applied against him, by affording proof to the contrary. (As succinctly put by Mohammed Azmi SCJ in the case of Mohammad Radhi bin Yaakob v PP (1991) 3 MLJ 169). [17] Thus, the pivotal issue to be decided by this court at the conclusion of trial against the accused, pursuant to section 182A (1) of the CPC is to consider all the evidence tendered in the case, which would necessarily include the evidence tendered by the prosecution at the close of its case, which was subjected to vehement cross-examination by the accused via his counsel. All the evidence has to be considered and evaluated by this court in order to arrive at a finding and conclusion, that the prosecution has proved its case beyond reasonable doubt, and consequently, if the accused has been successful in raising a reasonable doubt on the mens rea possession of the dangerous drugs and also successful in rebutting the presumption of trafficking on a balance of probabilities. Evaluation of the defence version [18] On that plank, the defence of the accused as testified by him and supported by his brother SD2 is that the entire sequence of events as evidenced by the prosecution narrative via its witnesses that the dangerous drug was in his mens rea possession is untrue and the individual who is blameworthy is one Onn Chai and not him. Therefore, he ought to be acquitted of the charges. [19] It is also raised as a defence that the dangerous drug as analysed by the chemist SP4 lacks probity, as SD3 Dr Vanitha who is the superior to SP4 had testified that there has been an absence of a GCMS test for the said dangerous drug, without which a decision could not be arrived at on the nature of the drugs analysed. [20] Simultaneously, it is also alleged that there has been a break in chain of evidence linking the dangerous drugs picked up at the scene of crime and later tendered in this court as proof via exhibits against the accused. [21] Essentially, in a nutshell, his defence is: • That it was Onn Chai who had borrowed the car of the accused three to four days before he was arrested on 23.7.2020. • The impugned drugs inside his car belongs to Onn Chai. • He has no knowledge of the contents of the black plastic bag which was found on the floor mat on the passenger’s side, next to the seat of the driver. • That the chemist SP4 did not comply with the procedure when analyzing the drugs in question. [22] However, the salient facts of case distilled from testimony of the prosecution witnesses, and the finding of this court therefrom, negates the defence advanced by the accused are the following: • At point of arrest on 23.7.2020, the raiding officer SP1 saw the car bearing registration no. WPD8168 driven by the accused. • There was no one else inside the car and the car belongs to him pursuant to the search obtained from the Road Transport Department (JPJ), P27A and P27B. • Upon exiting from the car, the accused was searched and on him was found a packet containing meth (P9A) in the right front pocket of the trousers or shorts he had worn on that day. • On search of the car, SP1 found one black plastic bag on the floor mat of the passenger’s side next to the driver’s seat, in which was found five (5) plastic packets also containing meth (P10 and P11 (1-5). It goes to show him alone, and not Onn Chai or SD2 who was concerned with the impugned drug, but the accused alone, on the presence of the black plastic bag which has to be taken care of him, as it was within his close physical proximity and control to the exclusion of others. (See authorities like Foo Jua Eng v PP

1966

MLJ 197; Surentheran Selvaraja v PP (2006) 1 MLJ 641). • Found too RM3500 cash, a Hong Leong Bank Card (P25). • The chemist SP4 had analyzed the impugned drugs found, which was confirmed to be meth vide report P24. • The accused who chose to call another chemist as SD3, who is SP4’s superior to raise doubt on the chemical analysis conducted by SP4, that he did not comply with the necessary procedure when conducting the analysis. The testimony by SD3 turned up against the defence, as she had confirmed in no uncertain terms, that SP4 had conducted a correct analysis of the dangerous drug and his report P24 prepared was in fact approved by her as the final report on the analysis. That piece of evidence is overwhelming and it displaces the absence of any GCMS test as contended by the DC. Even without the GCMS test, SP4 was able to identify the nature of the dangerous drugs he had analyzed with ease. That analysis by SP4 stays unrefuted by the accused until end of the trial. The defence counsel (DC) had attempted to request this court to rely on an authority from the US Supreme Court in the case of Malendaz Diaz v Massachusetts 557 US 305 (2009), but the ratio decidendi of that authority, albeit being persuasive is on the reception of scientific or forensic evidence in the absence of the expert testifying in court. But, in the present case, SP4 was present to testify and he was vehemently cross-examined by the DC on the test and analysis he had embarked on with the impugned drugs, to which he came out unscathed and his testimony unrefuted. This court has accepted the opinion of SP4, now confirmed by SD3 and their confirmatory testimony on the nature and identity of the dangerous drug is by itself credible in the absence of contradictory opinion evidence by another chemist. As such, there is also no necessity for the chemist to show in detail what he did in his laboratory when analyzing the dangerous drugs. (See the oft quoted authorities like Munusamy v PP (1987) 1 MLJ 492; PP v Lam San (1991) 3 MLJ 426). [23] The version of the accused linking Onn Chai with the impugned drugs is a predictable story conjured up to fit into the defence of the accused in order to alienate himself from the said drugs. The identity of Onn Chai was not even known by SD2, his brother. So is the accused but told in court that he has met him at the Sg Buloh prison and allegedly known him for a period of ten (10) years. The probability of the story is also highly unlikely, as the drug found in the accused trouser pocket is of the same nature with that found in the car, which is meth. It was also identified and confirmed by the accused that P9A could fit his trouser pocket, when the photograph of it, P19B was shown to him. He too had confirmed the trouser worn by him vide photograph P7A. [24] On that score, non-production of the trouser by the prosecution as proof, as contended by the DC for accused is misplaced for the following reasons: • The impugned drug was not found in a container apart from the accused. • It was found on his body inside the trouser pocket. • It was his wearing apparel. • SP1 is not in a position to seize the trousers or shorts the accused was wearing at the material time. • To seize it later too does not make a difference, as the accused was already under arrest. • But the photographs taken is of assistance to show the shorts he was wearing, as in P7A and impugned drug was A1 as in photograph P9A. • The search list P12 also depicts the seizure of the impugned drug found inside the pocket of the shorts of the accused followed by P16, the police report made by SP1. • In fact, pursuant to section 20 (b) of the CPC, SP1 is entitled in law search the arrestee (later accused) and place in safe custody all articles other than necessary wearing apparel (which includes the shorts the accused was wearing) found upon him, which there is reason to believe were the evidence of crime may be detained (which includes the impugned drug found in the pocket of the shorts). • Likewise, non-production of the rubber band which was together with P10 does not alter the fact that the impugned drug was found inside the trouser pocket of the accused, which was admitted to by the accused that it could fit his trouser pocket, when he identified the photograph showing the impugned drug as A1. Findings and conclusion [25] Evaluating the defence advanced by the accused in the manner provided by section 182A of the CPC, arising therefrom the following are this court’s findings: • The existence of Onn Chai does not in any manner whatsoever favour the defence, as to start with his positive identification is not made available or furnished to the investigation officer of the case for it to amount to an Al Contara notice as required under the law, so that the investigation officer is able to identify and track Onn Chai in order to investigate his role in the case forming the preferred charges against the accused. • The accused himself or his brother SD2 are unable to offer sufficient and positive identification of Onn Chai, albeit them claiming to know him for a very long time. • Although the accused bears no burden to prove his defence, but in order to rebut the preferred charge of drug trafficking, he has to tender evidence to displace the presumption of trafficking applied against him on a balance of probabilities. Thus, he is duty bound to produce positive evidence on the existence of Onn Chai and not just merely throwing in a red herring to inform the court that if at all anyone is blameworthy in the case against the accused is Onn Chai, which in law is insufficient to tilt the balance in his favour. • Likewise, the accused is also unable to negate the charge of mens rea possession of the dangerous drug found inside his trouser packet. • To sum up, the purported individual Onn Chai who is blamed on could be a fictitious character, named to suit the afterthought defence of the accused, which in fact is also a belated disclosure, only raised for the first time in court and not at the earliest opportunity when he was investigated. That per se renders the defence as lacking in probity and viewed with suspicion. • On Onn Chai’s blameworthiness, there is also no police report lodged by the accused to give a colour of credibility or probity to his defence. • On the alleged break in chain of evidence, it is found that there has been no reasonable doubt raised, as the proof offered by the prosecution when tendering the impugned drugs as proof against the accused, is supported by the existence of the dangerous drugs itself in the form of P9A, P10 and P11 (1-5); continually handled by the raiding officer SP1 and the investigation officer, as well as the chemist. Testimony to this is also the documentary proof in the form of photos P7A, P19; search list P12; police report P16; on site report P26 and the chemist report P24 preceded by the proof via Pol 31 document and official receipt from the Chemistry Department. As for the drugs found in the car, there has been real evidence in the form of the car via photograph at P13 and car keys P15. • Challenge was also made on the procedure observed and followed by the chemist when conducting his chemical analysis by calling SD3 who is the chemist SP4’s superior. The challenge made is found to be insignificant in view of the testimony of SD3 herself that she had confirmed the analysis of SP4, hence culminating into a chemist report P24. To that extent, the opinion of the chemist on the nature of the dangerous drugs stands unrefuted. [26] Therefore, pursuant to the mantra in Mat v PP (1963) 1 MLJ 263, this court has evaluated and considered the explanation afforded by the accused with a fine-tooth comb, and it is found that it does not raise a reasonable doubt as to his guilt as per the preferred charges. So is also the situation with regard to the rebuttal offered purportedly to displace and rebut the statutory presumption of law pursuant to section 37 (da) of the DDA, as it does not amount to an innocent nor a probable explanation, as Onn Chai seems only to be a fictitious individual who is created as a recent invention by the accused and his brother SD2 to alienate the accused from the impugned drugs found on him as well as in his car. On that plank the prosecution has proved a case beyond reasonable doubt against the accused which stands not dislodged by the accused. (See the case of Ling Tee Huah v PP (1982) 2 MLJ 324). [27] In view of the above findings by this court at the conclusion of trial, pursuant to section 182A (1) of the CPC, the prosecution has been successful in proving a case beyond reasonable doubt against the accused. Ensuing from that, and in accord with section 182A (2) of the CPC, the accused is found guilty and convicted on the preferred charges against him. Thereafter, before a fair, proportional and appropriate sentence is meted out, plea in mitigation by the accused is heard. Sentence [28] His plea to this court via his counsel is for this court not to sentence him to death but only a period of imprisonment as provided for under the law. He is aware of the sentence that could be meted out against him, which includes, for the offence of drug trafficking under section 39B (2) of the DDA, a sentence of death or imprisonment up to a period of thirty (30) years. If a period of imprisonment is imposed, he is also to whipped up to twelve (12) times. But since he is 53 years old at the date of conviction, he is excepted from the punishment of whipping, pursuant to section 289 (c) of the CPC. As for the offence of drug possession, he is aware that the period of imprisonment would be up to five (5) years. He had also prayed for the sentences for both the offences as contained in the preferred charges against him to run concurrently, as it was pursuant to the same arrest. He had also prayed for the sentence of imprisonment to take effect from the date of arrest. On familial grounds, he is supposed to be taking care of his father, who is an OKU. [29] The DPP appearing for the prosecution, on the other hand had submitted on the aggravating factors found in the case against the accused, which includes, that although the case does not involve large scale operation of drug possession and trafficking, but the accused person being a small-time operator, has been proven to be highly effective with his clandestine activity, to avoid detection. Further, in sync with the aim of sentencing, which is general and specific deterrence, the punishment meted out has to have an effect of cutting of future offenders to try such drug operation and from having easy access to the drugs. Therefore, a severe punishment is prayed for, which could be the death penalty. The DPP agrees that no whipping can be imposed, due to the age factor of the accused. It was further implored to this court that if a sentence of imprisonment is passed, it ought to take effect consecutively, although it could take effect from the date of arrest, which was on 23.7.2020. At point of conviction the accused had served a period of 3 years 6 months. [30] After having heard the plea in mitigation by the accused via his able and diligent counsel as well as submission on the aggravating factors by the DPP, this court concludes on the following axis: • The sentence meted out has to be proportionate to the crime committed by the accused. • As the offences committed by the accused is by nature drug offences, it per se attracts a deterrent sentence in view of the scourge of drug offences in the country. • The sentence passed has to reflect both specific deterrence to the accused to refrain him from reoffending and general deterrence to prevent other individuals from attempting to commit such crimes. • One paramount consideration, is also the weight of the drugs involved in the case, which is 191.6 grams of meth trafficking and meth possession of 4.41 grams. • Another factor considered is that the involvement of the accused was in transporting or carrying the dangerous drug meth weighing 191.6 grams. • In view of the factors alluded to, this court finds that meting out a death penalty may be inappropriate but a sentence of imprisonment up to 30 years is appropriate for the offence under section 39B (1) (a) DDA. • As for the offence punishable under section 12 (3) DDA, a sentence of one (1) year is appropriate, considering the fact that the legal provision provides for the penalty of fine first, followed by custodial option. • As the offences were committed in the course of one single transaction, which is proximity of place and time, continuity of action and one common design to be in possession of drug and also trafficking of it, the one-transaction principle applies. Thus, the sentences passed would take effect concurrently. • Therefore, pursuant to section 183 of the CPC, the accused is ordered to suffer imprisonment for a period of thirty (30) years which is to take effect from the date of arrest on 23.7.2020. • As he is 53 years old, he is excepted from the sentence of whipping under section 289 (c) of the CPC. Accused found guilty, convicted and sentenced accordingly. Dated 27 December 2024 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties DPP Zaileen Nadia Zubir of the Attorney General’s Chambers (AGC) for and on behalf of the Prosecution. Defence Counsel (DC) Mah Kah Keong of Messrs. Nazri Aziz Masura Mak & Tan, assigned by the Court, for and on behalf of the accused.

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Case metadata

Court: High Court of Malaysia
Decision date: 31 Jan 2024
Case number: WA-45A-25-03/2021
Coram: YA Tuan Muniandy a/l Kannyappan
Practice area: Criminal Justice - Trial - Charge of drug trafficking and possession - found guilty and convicted - issues raised - accused not blameworthy but another individual
Version: Alasan Penghakiman 1
Published: 26 Dec 2024
Source ID: 62db3d50-278f-40b3-bcb1-4e679fcd3b71

Catchwords

Criminal Justice - Trial - Charge of drug trafficking and possession - found guilty and convicted - issues raised - accused not blameworthy but another individualchemist evidence lacks accuracybreak in chain of evidence - existence of another individual is only a fictitious character - unbroken chain of evidence - confirmatory evidence of the chemist and his superior - accused unable to rebut statutory presumption of trafficking - case proven beyond reasonable doubt - accused found guilty and convicted - sentence of imprisonment for a period of thirty years preferred to that of death - sentence of whipping excepted - accused more than 50 years of age

Parties

[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] - pendakwa-raya - ejudgment_parties
LOKE SEEN YOONG - accused - ejudgment_parties

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[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v LOKE SEEN YOONG (WA-45A-25-03/2021)

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[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v LOKE SEEN YOONG (WA-45A-25-03/2021)

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