[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v 1. ) Michael Ting Siew Su (WA-45A-4-02/2021)

1.

MICHAEL TING SIEW SU ROBINSON AK SUMPING JUDGMENT Case of the prosecution [1] Having meticulously assessed the evidence presented by the prosecution and subjected it to maximum evaluation, this court arrived at the following factual determinations. [2] The prohibited drugs were found within the physical control of both accused individuals. This establishes factual possession. [3] At time of raid and subsequent arrest, the accused persons were situated in close proximity to the aforementioned drugs. This proximity further supports the finding of possession and potential control. [4] The matter of accessibility to the hotel room rented by both accused persons is unambiguous, as they were the sole possessors of the access cards, granting them exclusive entry. This demonstrates their control over the premises where the drugs were found, strengthening the inference of possession. [5] The illicit drugs discovered were not concealed but were openly handled by the accused. It is packaged as High-Class Chinese Tea. The open handling suggests a lack of attempt to hide the drugs, which can be indicative of knowledge and intention. [6] The conduct exhibited by the accused at the point of the raid aligns with that of individuals found in possession of contraband, specifically the drugs in this instance. This observation constitutes a pertinent fact as outlined in section 8(2) of the Evidence Act 1950 (EA/Act 56), which addresses the relevancy of conduct. [7] In totality, the Court finds in the absence of evidence to the contrary, that both accused persons were in mens rea possession of the prohibited drugs. Mens rea, or guilty mind, is a crucial element for drug offences, requiring proof that the accused knew of the existence and nature of the drugs. [8] Given the substantial weight of the seized drugs, which is 16,418.9 grams of methamphetamine (meth), the presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952 (DDA/Act 234) is activated, placing upon the accused the onus to rebut it on a balance of probabilities, a standard of proof exceeding that of merely raising a reasonable doubt. This provision specifically states that where the weight of the dangerous drug exceeds a certain limit, the accused is presumed to be trafficking unless the contrary is proved. [9] Based on these established facts, this court had concluded that the prosecution has presented credible evidence establishing a prima facie case against both accused individuals on the charge of trafficking in methamphetamine, a dangerous drug, with common intention under section 34 of the Penal Code (PC/Act 574), read together with Section 39B(1)(a) of the DDA. Common intention requires proof of meeting of minds and concerted action amongst both the accused persons, and in furtherance of that plan to traffic dangerous drugs. At end of the case of prosecution, the proof of common intention, is the fact that both the accused persons were found in the hotel room 1108 at Pullman Hotel with the dangerous drugs. [10] Consequently, both accused persons were directed to enter their defence, as the prosecution has successfully discharged its bounden duty to establish a prima facie case at the end of its case. That order was made on the basis there has been prima facie evidence established by the prosecution for an offence of drug trafficking in furtherance of common intention of both the accused persons pursuant to section 34 of the PC. Case of the defence [11] The three available options for presenting their defence, as outlined in section 173 (ha) of the Criminal Procedure Code (CPC/Act 593) were duly explained to the accused. [12] Following the court's direction for both accused persons to enter on their defence, they elected to testify under oath from the witness box to defend themselves. [13] The first accused reiterated his denial of knowledge regarding true nature of the impugned drugs contained within suitcase P43 (P17 – P36); P14, P15A and P16A found in the hotel room, asserting them to be merely high-class Chinese tea. However, in order to gain an acquittal, the burden now shifts to the accused persons to raise a reasonable doubt in the case of prosecution as established, and to rebut the presumption of trafficking on a balance of probabilities. [14] The undisputed facts remain that the first accused travelled from Sibu, Sarawak on the instruction of an individual referred to as Ah Long, who had also financed his travel and accommodation at the luxurious Pullman Hotel. The instruction was for him to subsequently meet an individual by the name of Ahok, from whom he received a suitcase containing the drugs, which was to be stored or kept at the hotel room 1108 before transporting it subsequently to Sarawak. [15] Despite his denial of knowledge, the circumstances under which he was found in possession of the suitcase containing the impugned drugs, would have necessarily alerted him to the contents, considering the fact he was acting under the instruction of Ah Long to have met Ahok, from whom the impugned suitcase was received. Had it merely been high-class Chinese tea, it could have been transported openly and without secrecy. These circumstances gave rise to inferences that the first accused was aware of the suitcase containing dangerous drugs. Furthermore, evidence of knowledge is rarely direct but is typically inferred from the surrounding circumstances (See PP v Ong Ah Chuan (1981) 1 MLJ 64). That too was the basis for this court to have ordered him to defend himself against the charge. [16] His defence was not simply a denial; he affirmatively identified Dang Chee Ho (also known as Ahok) as the individual with whom he communicated and who handed him the suitcase containing the drugs. Dang Chee Ho is not a fictitious person but a real individual who was also implicated in the drug trafficking operation, along with the intended recipient of the drugs in Sarawak. However, this plan was thwarted by the arrest of the accused persons. [17] The clarity of his claim, was supported in fact by investigation officer (IO) of the case, who was fully aware of the existence of Dang Chee Ho, but not inquired further. Thus, claim by the first accused is inherently logical in terms of time and circumstances presented by him, having the effect of dislodging the case of the prosecution for an offence of drug trafficking. It has to be iterated that evidence led by the prosecution was helmed by the testimony of the case IO, which stood uncontroverted till conclusion of trial, although he was vehemently cross-examined. (See by analogy the case of Ling Tee Huah v PP (1982) 2 MLJ 324). To that extent, defence of the accused is unmotivated by falsity when he chose to implicate Dang Chee Ho. [18] The entire transaction and dealings were orchestrated by the first accused, while the second accused was at all material times acting as his assistant, readily available at his command. The second accused was merely instructed to accompany the first accused. Consequently, sworn testimony of the second accused, offering a plausible explanation for his presence and lack of knowledge or intention, carries sufficient weight raising a reasonable doubt with regard to his common intention with the first accused to traffic the impugned drugs. [19] Distinct from the role played by the second accused, it becomes apparent that it was the first accused who had engaged directly with Dang Chee Ho and Ah Long in Sarawak concerning what was ostensibly presented as high-class Chinese tea, but in reality, dangerous drugs. His direct involvement in the arrangements and handling of the suitcase containing the impugned drugs raises a strong inference of him having knowledge of it. A simple minded human being like the first accused, would not be risking his liberty to travel all the way to Kuala Lumpur to act on the instruction of Ah Long, whom he knows, then to meet up Dang Chee Ho and receive the impugned drugs, seemingly high-class Chinese tea, if not for his own pecuniary gain. Evidentially, the first accused did not implicate the second accused, save for being candid that he merely accompanied him to Kuala Lumpur. Issue of common intention [20] In terms of the law, common intention is pivotal for establishing joint criminal liability. It includes a prior meeting of minds of individuals, and in the present case, the first and second accused to commit the criminal act of drug trafficking. It is never sufficient to merely echo that they acted together; they must have shared the intention to commit the act of trafficking. Presently, the second accused being a handyman for the first accused, per se, is insufficient to prove common intention to traffic drugs. A handyman typically performs odd jobs, like in the present case to accompany the first accused to Kuala Lumpur; bringing up the suit case from the basement car park to room 1108 at Pullman Hotel; does not at all suggest involvement in or knowledge of illegal activities like drug trafficking, which took place at the behest of the first accused alone. [21] Therefore, for common intention to be established, the prosecution needs to prove beyond reasonable doubt that the second accused was aware of the drug trafficking activity by the first accused and actively participated in it with the shared goal of trafficking. Pursuant to testimony of the second accused, juxtaposed with the surrounding circumstances, he could be inferred to be doing legitimate work for the first accused without any knowledge of the first accused’s illicit ventures. As such, simply being employed by or associated with the first accused who deals with drugs does not equate to having a common intention to traffic. The prosecution needs to prove that second accused knew of the first accused’s drug trafficking activities; that both of them had an understanding or agreement to traffic drugs. This could be express or inferred from their conduct; that the second accused performed acts that were specifically in furtherance of this shared intention to traffic drugs. This could involve for example – assisting in packaging or storing drugs, transporting drugs, acting as a lookout during a drug transaction, having access to areas where drugs were kept, knowing their purpose and receiving payment for services directly related to drug trafficking. [22] While the relationship between the first and second accused might be a starting point for investigation, it is not a standalone piece of evidence that automatically proves common intention. The prosecution needs to present concrete evidence demonstrating the second accused person’s knowledge, agreement, and active participation in the drug trafficking operation with the first accused to successfully establish common intention under section 34 of the PC. [23] Presently, the evidence available only points to the following: • The second accused merely accompanied the first accused to Kuala Lumpur. • The deal and transaction involving the impugned drugs was entirely transacted by the first accused, without knowledge of the second accused. The second accused was not part of the negotiated deal between the first accused, Ah Long and Dang Chee Ho. • He was only a passive participant, perhaps without full knowledge of the illicit activities of the second accused or without having agreed to participate in them. • The first accused was the principal actor, making all the arrangements and decisions with regard to trafficking drugs. • The actions by the second accused, do not demonstrate active participation in the core elements of drug trafficking. • Even with the presence of the second accused, the prosecution still bears the heavy burden of proving beyond a reasonable doubt, that the second accused shared the common intention with the first accused to traffic drugs. • The evidence under oath by the first and second accused, do not show that the second accused knew that the purpose of the trip to Kuala Lumpur was to collect drugs; he was not aware that the items being transported to Sarawak were dangerous drugs, but only as high-class Chinese tea; he does not know the exact nature of Dang Chee Ho’s visit at the Pullman hotel to meet up with the first accused. • There was no communication, explicit or implicit between the first and second accused indicating that the second accused agreed to participate in the drug trafficking operation. • There is also no evidence to show, indicating that the second accused stand to gain financially by trafficking drugs. • Although the second accused was carrying the suit case up to room 1108 at Pullman Hotel, he only knew of it containing high-class Chinese tea, as it was packed such and not dangerous drugs. [24] Evidence of the second accused juxtaposed with that adduced by the prosecution also shows the following: • He had no knowledge of the dangerous drugs. • He has raised a reasonable doubt on the case of prosecution that he did not know of the impugned drugs, what more that the first accused was involved in that act. • His defence is not a bare denial, but circumstantially, it is only probable that the second accused does not know of the dangerous drugs for the reasons alluded to above, thus tilting the balance of probabilities in his favour. • The account by him, serves to be a plausible story which is detailed and consistent as to why he was with the first accused and that he had no reason to suspect the existence of the drugs. • It is also iterated that the first accused did not at any point in his testimony implicated or incriminated the second accused on the clandestine activity he was involved in. • The explanation by the second accused is believable and consistent with the facts and surrounding circumstances of the case. The denial by the second accused is not merely bare but plausible as he has constructed a convincing and credible narrative, supported by the available evidence, showing that he genuinely did not know about the drugs and had no intention to traffic them, despite his presence and association with the first accused. (See: Mat v PP (1963) MLJ 263). Acquittal of the second accused [25] In the upshot, the second accused, Robinson anak Sumping, is hereby acquitted and discharged of the charge for an offence of drug trafficking, as he has successfully raised a reasonable doubt on the case of prosecution which is anchored on joint liability by way of common intention with the first accused and has also rendered a probable story as to why he was found with the first accused, tilting the balance of probabilities in his favour. The defence raised by him is not a denial, but a crime attributed to the first accused who was the mastermind who had dragged him to the fore at room 1108 of Pullman Hotel. Considering his defence, this court has thus arrived at a finding of fact that he did not have any common intention with the first accused to traffic dangerous drug, but only to accompany him to Kuala Lumpur. Status of the first accused [26] However, in respect of the first accused, he has presented tangible evidence indicating his role as only a transporter acting on behalf of Dang Chee Ho, establishing that he was not the primary or actual trafficker but was at all times in mens rea possession of the substantial quantity of meth. He has also been successful in directing the blame on the prosecution, that they ought to have pursued criminal prosecution against Dang Chee Ho, whose involvement in the dealings and transaction with the first accused is evident and also well-known to this case IO SP6, as agreed by him in his own testimony. There has not been a successful cross-examination yielding any adverse result than that testified by the first accused. That leaves for this court to adhere to the principle of proportionality prevailing in the administration of criminal justice suggesting that those with the most significant involvement should be the primary target. In this case it is not only the first accused Michael Ting Siew Su but also the individual Dang Chee Ho. [27] To recap, the position of the case vis a vis the facts and circumstances is the following; • The first accused was caught in a debt trap with Ah Long • Ah Long had approached him, to render assistance to him to pay off the debt, if he was able to travel to Kuala Lumpur and transport back drugs to Sarawak. • The items to be transported back is camouflaged to be high-class Chinese tea so that it has a colour of concealment, to avoid being detected by the enforcement authority. • The first accused readily agreed to this clandestine activity and he is supposed to meet up Ahok, who is in fact Dang Chee Ho, whom actually came to the Pullman Hotel where the first accused was staying. • The first accused on his own is not proven to have known the source of the drugs before it is transported to Sarawak. It is at the instance of Dang Chee Ho who procured the drugs for him packed as high-class Chinese tea. • The transaction is fortified by the presence of Dang Chee Ho at the hotel. • The investigation officer of the case is fully aware of the role played by Dang Chee Ho, and the information received by the raiding team that there would be in operation a clandestine drug trafficking activity which has to be foiled instantly. • Hence the arrest of the first accused. • The second accused was arrested, as he was present together with the first accused and in close proximity with the suit case containing high-class Chinese tea and nothing more. • The first accused had committed the clandestine criminal activity as he was motivated by a debt trap he is embroiled with. • Ultimately with the existence of Dang Chee Ho, who was in fact a real individual whom had negotiated a deal with Ah Long vis the first accused is the actual trafficker, who had sourced the drugs in order to be transported by the first accused to Sarawak. • Essentially, he was the actual trafficker known also to the case IO, but escaped the long arms of the law. • That would be disproportional, as in law the primary culprit is Dang Chee Ho and not the first accused alone, although he was fully aware of the clandestine transaction and activity in which he was a directly a party. • He was in possession of the impugned drugs at the point of raid and arrest, thus has to face the wrath of the law, not for drug trafficking but for a lesser offence of possession of the impugned drugs. • He shall not escape criminal liability by claiming he does not have knowledge of the impugned drugs found in room 1108 at Pullman Hotel, although it was packaged as high-class Chinese tea and to be transported to Sarawak. To reiterate, if it is only high-class Chinese tea, it could have been transported with ease and conspicuously, but not so in this case. The clandestine mode and manner, is obviously known to the first accused since the time the deal was hatched by Ah Long. In a nutshell and conclusion [28] The legal landscape in drug trafficking cases is complex with application of the statutory presumption and the critical element of common intention under the DDA. The key principles that this court must adhere to, are in particular concerning evaluation of evidence at the conclusion of a trial; the rebuttal of presumption; and the establishment of an evidential link between the accused and the impugned drugs. [29] At the close of the defence case, this court's duty is to consider totality of the evidence adduced, from the very inception of trial until end of the defence. The testimony of the accused must be juxtaposed with the evidence led by the prosecution. If the defence evidence raises a reasonable doubt, even on the prima facie case previously established, then the accused is entitled to an acquittal. This principle is fundamental to criminal jurisprudence and underscores the burden of proof resting on the prosecution to prove its case beyond reasonable doubt. Section 182A (1) of the CPC mandates that at the close of the defence case, the court shall consider all the evidence adduced in the trial. [30] The Federal Court in the case of PP v Mohd Radhi Yaakob (1991) 3 MLJ 169 emphasized that at the end of the whole case, this court must subject all evidence, both for the prosecution and defence, to a maximum evaluation. If the defence evidence, when considered with the prosecution's case, raises a reasonable doubt, the accused must be acquitted. In the same case, the two-stage test was clarified. • Stage 1 (Prima Facie): At the close of the prosecution's case, the court determines if a prima facie case of possession (and thus the presumption of trafficking under Section 37(da)) has been established. If so, the defence is called. • Stage 2 (Beyond Reasonable Doubt): At the end of the defence case, the court must then consider if the accused has rebutted the presumption of trafficking on a balance of probabilities. The accused can still raise a reasonable doubt on the element of possession by providing a credible explanation. [31] The crucial aspect of the present case is the evidential link between the accused persons and the impugned drugs. For a charge involving common intention under Section 34 of the PC, read with section 39B of the DDA, the prosecution must prove that both accused persons shared a common plan or purpose to traffic drugs. Mere presence or passive facilitation, without evidence of shared intention or active participation in the trafficking enterprise, may not suffice to establish common intention. The quantity of drugs, while activating presumptions, does not automatically establish the requisite mental element - knowledge and intention or common intention for all involved. [32] The observation that the evidential link of the impugned drugs with Dang Chee Ho and not the first accused alone is critical. If Dang Chee Ho is identified as the actual trafficker, with the first accused merely facilitating his activity (e.g., as a carrier at his instance), it weakens the case against the first accused for actual trafficking, and even more so against the second accused. As the first accused was merely in possession of the impugned drugs before it is supposed to be taken by him to Sarawak at the instance and request of Dang Chee Ho, it points more towards a lesser offence of possession, rather than trafficking. [33] For the foregoing reasons, the first accused is found guilty by this court and convicted for a lesser offence of possession of dangerous drug pursuant to section 12(2) of the DDA read together with section 39A (2) of the DDA, premised on the same facts and evidence presented before this Court. This is made possible by the law, pursuant to section 169 (2) of the CPC. The distinction between trafficking and possession for the purpose of trafficking lies in the intention and the activities undertaken. The testimony of the first accused merely suggest an intention to transport, without any further details or evidence of it, as before that took place, the transaction in its entirety was stymied by the raiding team. [34] Pursuant to the finding of guilty and conviction, this court then proceeded to hear the plea in mitigation by the first accused before meting out an appropriate and proportional sentence according to the law, as found in section 39A (2) of the DDA. His plea is the following:

PB Latarbelakang OKT – masih tidak berkahwin.

Berhutang dengan Ah Long.

Kemiskinan tegar.

Reman sejak 1.7.2020.

Penuh kerjasama telah diberikan.

Kesalahan pertama OKT.

Hukuman pemenjaraan yang dipohon – haruslah minima selama 5 tahun. The aggravating factors raised up by the prosecution are the following:

Kesalahan serius.

Kekerapan berlaku kes-kes dadah.

Mohon satu hukuman yang berat.

Berat dadah – 16,418.9-gram meth. Following to that, the sentence meted out by the court is: Setelah mengambil kira peruntukan undang-undang, hujahan oleh kedua-dua pihak pendakwaan dan pembelaan –

Tempoh pemenjaraan selama 15 tahun diperintahkan, berkuatkuasa dari tarikh tangkap pada 1.7.2020.

Hukuman sebatan sebanyak 10 kali seperti yang diperuntukan oleh undang-undang diperintahkan. First accused found guilty and convicted on a lesser offence of drug possession. Second accused acquitted and discharged. Dated 29 July 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur Parties DPP Nur Aqilah Ishak and DPP Izalina Haji Abdullah of the Attorney General’s Chambers (AGC) for and on behalf of the prosecution. DC Muhammad Amir Aizat bin Abdul Rani and Muhd Akmal Amsyar bin Muhamad Ali of Tetuan Shamsuddin & Co for the First Accused. DC V Saravanan of Tetuan Edmund, Saravanan & Babu for the Second Accused.