[Pendakwa Raya] v Visvamurthy A/l Apparasamy (AA-45A-11-12/2019)

VISVAMURTHY A/L APPARASAMY [NRIC NO.: 790331-08-6291] 15

M THIYAGU A/L MURTY [NRIC NO.: 920102-08-5415]

SATHIASELAN A/L AYAKANU 20 [NRIC NO.: 920130-08-6167]

SIAH CHIN AUN [NRIC NO.: 820519-07-5521] 25 GROUNDS OF JUDGMENT Introduction [1]. This case arises from a drug operation uncovered at a factory in Gopeng, Perak, involving 426.79 kilograms of 30 Methamphetamine, one of the largest seizures to come before this court. The four accused, namely; Visvamurthy a/l Apparasamy (OKT1), M. Thiyagu a/l Murty (OKT2), Sathiaselan a/l Ayakanu (OKT3), and Siah Chin Aun (OKT4), were jointly charged under section 39B(1)(a) of the 35 Dangerous Drugs Act 1952 (“DDA”) read together with section 34 of the Penal Code for trafficking of 426,792.2 grams of Methamphetamine on 4.12.2018 at a factory in Gopeng, Perak. The charge reads as follows: “Bahawa kamu bersama-sama pada 4 Disember 2018, jam lebih 40 kurang 7:45 malam, di alamat, No. 65, Jalan Industri 4/2, Kawasan Perindustrian Gopeng, 31600 Gopeng, di dalam Daerah Kampar, Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya iaitu sejumlah berat 426792.2 gram Methamphetamine dan oleh yang demikian, kamu telah 45 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.” 50 [2]. At the close of the prosecution’s case, this court found that a prima facie case of trafficking had been established and accordingly invoked section 180 of the Criminal Procedure Code to call the accused to enter their defence. The prosecution’s evidence demonstrated two critical elements: 55 first, the recovery of a substantial quantity of Methamphetamine amounting to 426,792.2 grams; and secondly, the presence of the accused in close proximity to the drugs, namely at the rear compartment of the lorry where the drugs were concealed. These circumstances trigger the 60 statutory presumption of trafficking under section 37(da)(xvi) DDA. All four accused elected to give evidence on oath in their defence. [3]. After hearing both sides, examining the submissions filed by the prosecution’s and defence’s at the end of the defence 65 case, and conducting a maximum evaluation of the whole of the evidence, the court finds that while trafficking has not been proven beyond reasonable doubt, the prosecution has nevertheless proved the lesser offence of possession under section 12(2) DDA, punishable under section 39A(2) DDA, 70 by virtue of sections 158 and 169(2) CPC. Background Facts [4]. The prosecution called eleven (11) witnesses. SP4 (the raiding officer) and SP6 (the lorry driver) provided the primary factual narrative. 75 [5]. The evidence establishes that on the evening of 4 December 2018, SP4’s raiding team positioned themselves near the factory unit at No. 65, Jalan Industri 4/2, Gopeng Industrial Area, following specific intelligence gathered that the premises and a white Isuzu lorry were being used for drug-related 80 activities. The team maintained surveillance as sunset fell, and at approximately 7.40 to 7.50 p.m., three vehicles, a white Isuzu lorry WVR 2767, a Nissan Navara, and a Perodua Myvi, were seen entering the compound. Their coordinated arrival, the unlit factory interior, and the absence of other traffic or 85 usual industrial activity heightened the raiding team’s suspicions and prompted the operation. [6]. SP4 and his team entered the compound through an unlocked main gate and proceeded directly to the lorry. Upon opening the rear compartment, they found all four accused inside the 90 enclosed cargo space, situated close to several cardboard boxes. With the aid of a torchlight, SP4 observed twenty-two

boxes in the rear compartment and their tops open. Inspection of one torn green plastic packet revealed a crystalline substance, and further checks uncovered a total of 95 650 similar packets suspected to contain Methamphetamine. The record discloses no contemporaneous innocent explanation from any of the accused for their presence in such a confined area with the open boxes and their mobile phones lights on. This absence of explanation, along with the narrative 100 of the scene in the rear compartment of the lorry, provided an important basis for the court’s subsequent findings on custody, control, and knowledge. [7]. Upon announcing their presence, SP4 and his team saw the accused attempt to move out of the lorry, prompting their 105 immediate arrest. Whether any struggle occurred is not material to the issues before the court. No weapons were found. The officers secured the 22 boxes and sent the exhibits for analysis. The chemist’s unchallenged report confirmed the substance to be Methamphetamine, weighing 426792.2 110 grams, forming the core evidential basis of the prosecution’s case. [8]. The defence narrative placed considerable emphasis on the existence of a third party known as “Encik Mat” or “Che Mat”, said to be the individual who rented the lorry from SP6, 115 retained the keys, instructed OKT3 on the movement of the load, and ultimately exercised control over the cargo allegedly containing machinery. Through this narrative, the accused sought to disassociate or distance themselves from the boxes found in the lorry, asserting that they merely complied with Che 120 Mat’s instructions and awaited further directions. The defence argued that Che Mat’s connection with SP6 was real and not fabricated, pointing to SP6’s own evidence that Che Mat met him at Starbucks, negotiated the rental, and later telephoned him after departing the café. This, the defence contended, 125 showed that Che Mat was a genuine figure whose involvement was material and should have been investigated by the police. The defence also highlighted that the prosecution did not produce any call logs from OKT3’s seized mobile phone. SP4 confirmed that the phone was taken and handed to SP11, 130 however, no records were tendered. This, they argued, deprived the court of the best evidence to verify whether OKT3 communicated with Che Mat on 4 December 2018 as alleged. The defence argued that without a proper investigation into Che Mat’s role, the possibility that other persons had access 135 to the lorry and its contents could not be ruled out. [9]. The accused advanced a narrative suggesting that the lorry had been in Che Mat’s custody for several hours before the raid, relying on SP6’s admission that he and Che Mat were together at Starbucks for about one-and-a-half hours, during 140 which Che Mat mentioned returning to Kuala Lumpur. From this, the defence argued that Che Mat and others could have accessed the lorry and placed the 22 boxes inside, and that SP4, having only seen the lorry arrive at 7.30 p.m., lacked visibility over any prior movements or possible tampering. 145 They further contended that the prosecution failed to establish a nexus between the accused and the drugs because the lorry was not produced as an exhibit for inspection, invoking Abdul Rashid Hanapi v PP [2022] CLJU 454; [2022] 4 MLRA 190 to argue that the absence of a vital link to the exhibit weakened 150 the prosecution’s case. The defence also maintained that the boxes were only exposed after the raid when police opened the pallets, contrary to SP4’s testimony that the boxes were already visible when the accused were discovered in the compartment. 155 [10]. While the evidence suggests that Che Mat may indeed exist and may have had some involvement, this does not alter the court’s conclusion on the accused’s custody, control, and knowledge. The suggestion that a third party could have placed the drugs in the lorry remains speculative and is 160 unsupported by any evidence. The accused were found inside the confined rear compartment, in close proximity to the open boxes containing a large quantity of Methamphetamine, with their mobile phones illuminated. They offered no immediate explanation to vindicate themselves. The prosecution’s 165 evidence was clear, consistent, and credible, and the overall circumstances firmly establish the accused’s custody, control, and knowledge. The defence’s alternative theory does not create any reasonable doubt and is therefore rejected. [11]. Finally, the defence argued that the prosecution bore the 170 burden of excluding third-party access. They maintained that Che Mat’s identity, movements, and communications constituted reasonable avenues of inquiry which the investigating officer failed to pursue. The defence submitted that it was not their burden to call Che Mat, as his existence 175 was disclosed in the prosecution’s own evidence through SP6; rather, it was the duty of the prosecution to investigate him thoroughly to ensure there were “no gaps or weak links”, consistent with Bunya Jalong v PP [2015] 5 MLJ 72; [2015] 4 MLRA 491; [2015] 5 CLJ 893. The absence of such an 180 investigation, coupled with the lack of documentary materials such as invoices or delivery orders to establish a legitimate machinery consignment, was said by the defence to raise a reasonable doubt on the accused’s knowledge and possession of the drugs. The defence ultimately relied on this gap to claim 185 that they were present merely to assist in moving items for storage, had no knowledge of Methamphetamine hidden in the boxes, and reasonably believed that the cargo related to machinery as conveyed by Che Mat. Issues for Determination 190 [12]. The key issues for determination are: a) whether the prosecution has proven possession (custody, control, and knowledge)? b) whether the prosecution has proven knowledge? c) whether trafficking was proven? 195 d) whether a conviction for a lesser offence is permissible? Court finding Issue A: Whether the prosecution has proven possession of the drugs 200 [13]. The events at the point of arrest remain the key point of evidence in deciding whether they had custody and control of the drug. The prosecution led clear and consistent testimony from SP4 and SP8 that all four accused were physically inside the rear cargo space of the Isuzu lorry, in immediate proximity 205 to the 22 boxes, which were later confirmed to contain Methamphetamine. Both officers testified that the accused were found sitting or positioned along the left and right interior panels of the lorry’s cargo compartment. This was a closed, confined space, and no one else was inside. Their presence in 210 such an enclosed area is a strong indicator of custody and control. Their accounts were coherent, unshaken, and corroborated by contemporaneous conduct observed during the raid. Against this, the defence asserted that the accused were never inside the lorry and had merely arrived to assist in 215 removing furniture or machinery. That narrative of the defence cannot stand. SP4 and SP8 clearly saw the boxes lying openly on the lorry floor, some already partly opened. Given how the boxes were arranged and how close the accused were inside the same lorry, it is simply not believable that they could be 220 there without realising that the lorry was carrying a contraband substance. [14]. The defence placed significant weight on the figure of “Che Mat”, said to have rented the lorry, controlled the keys, issued instructions, and maintained control over the cargo. They 225 argued that the incomplete investigation into his identity and the absence of call logs from OKT3’s mobile phone created reasonable doubt as to who truly exercised custody. While these arguments were duly considered, they do not displace the direct and credible testimony of the raiding officers, nor do 230 they negate the legal significance of the accused being found inside an enclosed compartment with large quantities of visible contraband. Whatever may be said about earlier movements of the lorry, the role of Che Mat, or investigative lapses relating to mobile-phone extraction, these matters relate to peripheral 235 circumstances before the raid. The Dangerous Drugs Act focuses on possession at the material time, and at the moment the raid occurred, only the four accused were present with the drugs. The court therefore, cannot accept submissions that the mere introduction of a third party, unsupported by 240 documentary proof, call records, or independent testimony, breaks the chain of custody or negates control. [15]. The principle in PP v Maniarasan Pillai Vijayan & Ors [2024] CLJU 294; [2024] MLRHU 230 applies squarely to the present case, where possession may be inferred from proximity, the 245 exclusivity of presence, and conduct within a confined space. Justice Muniandy Kannyappan expressed in these words: “…All three accused persons were found with the impugned drugs. It was found with them conspicuously on a table when they were together without any other individuals inside the room. 250 They were standing near the impugned drugs and the plastic packets containing it could be seen by the naked eye. Thus, they were in close proximity to the impugned drugs. Hence, they were conscious of possession of the impugned drugs.” 255 [16]. Basically, the court in Maniarasan (supra) held that a person found inside a room containing drugs can be treated as having custody and control of those drugs, even without proof of physical handling. In the present case, although the drugs were found in the rear compartment of a lorry, that enclosed 260 space operates in the same way as a room for evidential purposes. Actual handling of the drugs is unnecessary. The statutory concept of possession includes joint possession, satisfied where the accused are in circumstances indicating knowledge of the presence of the substance and the ability to 265 exercise control over the area in which it is found. SP4 candidly conceded that he could not identify who opened the boxes or tore the A1 package. Still, such gaps do not weaken the inference of possession arising from their collective presence with exposed contraband. On the whole of the evidence, the 270 court finds that custody and control have been proven beyond a reasonable doubt. Issue B: Whether knowledge was proven [17]. The court has also carefully considered the defence version on the issue of knowledge. The accused sought to justify their 275 presence by relying on three connected explanations. First, they claimed to be involved in a small livestock and animal-feed business under “Sathia Thiyagu Agro Farm Enterprise,” for which the said factory premises were used as a store. Secondly, they said they had gathered at the factory that night 280 for routine work after meeting earlier in the area. Thirdly, they testified that “Che Mat” was the person who arranged for the white Isuzu lorry to come to the factory and had allegedly asked them to keep the machine there because he needed temporary storage before moving it elsewhere. They said that 285 “Che Mat” brought the lorry carrying the machine to the factory so they could keep it overnight, as the intended destination for the machine was already closed. They further claimed that he had agreed to lend them the lorry later that night to transport furniture and mattresses to an old folks’ home. These 290 explanations were intended to suggest that the accused were engaged in a genuine business and charitable work. [18]. However, when these explanations are tested against the objective evidence, they do not hold together and are far from the truth. The alleged business had no documents or records 295 to support its existence. Any witness, messages or identifiable destination never corroborated the furniture-moving plan. The reason for all four accused being at the factory that night also remains vague and does not align with the defence narrative. The court accepts that “Che Mat” may have existed, but his 300 limited involvement does not support the wider story the defence attempts to build around him. [19]. Knowledge must be inferred from surrounding circumstances, as recognised in Surentheran Selvaraja v PP [2005] 1 MLRA 165; [2006] 1 MLJ 641; [2005] 2 CLJ 264; [2005] 3 AMR 56, 305 270, where the Court of Appeal held that although there was no direct evidence that the accused knew about the drugs, such knowledge may be inferred from the proven facts. In that case, the drugs were found in a red plastic bag placed on the floor of the driver’s area, positioned between the accused’s 310 feet, where he would necessarily notice it while driving. As he was the driver and sole occupant of the vehicle, and had allowed the bag to remain there, the court inferred that he was aware of its presence and was exercising custody and control over it. Abdul Aziz Mohamad JCA stated: 315 ““There is, if at all, very seldom available direct proof of the knowledge that is necessary to constitute possession. In almost every case, proof of knowledge has to be by way of inference from the proven circumstances… In any given case, whether knowledge is inferable depends on the particular circumstances 320 of the case and a proper appreciation of them……the inescapable inference… can only be that he knew of the existence of the bag… and that therefore he was in custody or control of it.”’ 325 [20]. In Surentheran Selvaraja (supra), the court also referred to Toh Su Kuan v PP [2002] 2 MLRA 526; [2005] 3 CLJ 740; [2006] 6 AMR 775, where knowledge was likewise considered in light of surrounding circumstances. Gopal Sri Ram JCA observed: 330 “In our judgment, the manner in which the packets were fastened to the appellant's person shows at the highest that he had knowledge the packets contained some prohibited substance, perhaps, drugs or perhaps some other substance which was unlawful to have in one's possession. But it certainly does not 335 prove that the appellant knew the packets contained heroin, the drug which forms the subject matter of the charge.” [21]. In the present case, the open boxes, the torn packet exposing crystalline substances, and the fact that all the accused were 340 found inside the enclosed cargo compartment together with those boxes leave no realistic room for an innocent explanation. Their claim that they were merely waiting to move “furniture” is unsupported by any physical or objective evidence. As for the fourth accused, his assertion that he went 345 to the factory only to do “kerja sedikit” is vague, unparticularised, and does not withstand scrutiny. The court finds these explanations unreliable and improbable. On the contrary, the inescapable inference from the surrounding circumstances is that the accused had both knowledge and 350 possession of the drugs. [22]. Although Maniarasan’s case (supra) involved fleeing and resisting arrest, that case makes clear that such actions only strengthen an already existing inference. In this case, the inference stands firmly on its own. The accused were in 355 exclusive presence with the drugs, the substances were visible, and no credible innocent explanation was offered. Overall, the court finds that knowledge has been proven beyond a reasonable doubt. Issue C: Whether trafficking was proven 360 [23]. The prosecution relied heavily on the statutory presumption of trafficking under section 37(da) DDA, triggered by weight. However, that presumption is not automatic; it only arises after possession is first proven beyond a reasonable doubt and after the prosecution has sufficiently excluded reasonable 365 alternative inferences arising from the surrounding circumstances. Although possession has been established, the evidence reveals several events that materially complicate proof of trafficking. Of particular significance is the defence evidence concerning third-party involvement by an individual 370 known as “Che Mat” and the unidentified workers allegedly linked to him. Their access to the lorry, their participation in loading materials earlier in the day, and the absence of any meaningful investigation into their whereabouts introduced a real rather than speculative narrative on how the drugs came 375 to be inside the vehicle. The prosecution did not rule out these possibilities, which weakens the basis for a finding of trafficking. [24]. Further, the prosecution must do more than show that a large amount of drugs was found. It must also prove, either directly 380 or through the legal presumption, that the possession was connected to trafficking. While direct proof is rare, certain signs usually support such an inference, such as repacking tools, weighing scales, bundles arranged for delivery, or actions showing the drugs were being moved for distribution. None of 385 these indicators was present in this case. SP4 did not see the accused moving any of the boxes, and there were no items suggesting the drugs were being prepared for sale or distribution. The prosecution also produced no surveillance footage, phone records, transport instructions, or documents 390 linking the accused to any wider trafficking operation [25]. In light of these gaps, the court is not satisfied that the prosecution has met the burden required under section 39B DDA. The presumption of trafficking cannot be relied upon when critical factual uncertainties remain unresolved, 395 especially where there is possible third-party access to the lorry and the complete absence of indicators typically associated with trafficking activities. The totality of the evidence points to possession but falls short of establishing trafficking beyond a reasonable doubt. The charge under 400 section 39B DDA is therefore not proven. Issue D: Whether a conviction for a lesser offence is permissible [26]. Section 158 of CPC allows the court to convict an accused of a lesser offence when only some elements of the original charge are proven. In contrast, section 169(2) CPC permits 405 the substitution of an alternative offence supported by the facts. In this case, the prosecution has successfully established possession, namely custody, control, and knowledge of Methamphetamine, and that such possession was joint within the meaning of section 34 of the Penal Code. 410 The element that remains unproven is the trafficking, which is required under section 39B(1)(a) of DDA. [27]. In light of these findings, the established facts satisfy the elements of possession under section 12(2) DDA, with the punishment prescribed under section 39A(2) DDA being of 415 substantial weight. As in Maniarasan’s case (supra), where the court relied on careful inference to determine possession and knowledge, the same approach supports substituting the present charge with the lesser offence. 420 Conviction [28]. Upon a complete and balanced evaluation of all the evidence, the court finds that the prosecution has not proved the charge 425 of trafficking under section 39B DDA beyond a reasonable doubt. Significant uncertainties remain regarding the trafficking element, and these doubts must properly be resolved in favour of the accused. [29]. Nevertheless, the prosecution has proven, to the requisite 430 standard, that all four accused were in joint possession of the Methamphetamine under section 12(2) DDA, punishable under section 39A(2) DDA, pursuant to sections 158 and 169(2) CPC. The court therefore convicts each accused of the lesser offence under section 12(2) DDA, punishable under 435 section 39A(2) DDA. Sentences [30]. Since the quantity of drugs seized, 426.79 kg of Methamphetamine is undeniably immense. Even so, in sentencing under section 12(2) DDA read with section 39A(2) 440 DDA, the court must balance punishment and deterrence with the rehabilitative purpose that the law envisages. The objective is that, while serving a substantial and meaningful sentence, the accused may reflect, repent, and ultimately return to society as responsible and law-abiding individuals. Although 445 there is no prior case involving drug weight of this scale, the decisions in PP v. Maniarasan Pillai Vijayan & Ors [2024] MLRHU 230; [2024] CLJU 294, Agnesh Gajanan Balasundram Pillai (Sri Ganesh A/L Jaya Balan, Appellant In The First Appeal) v. PP (Sri Ganesh A/L Jaya Balan, 450 Appellant In The First Appeal) [2022] 2 MLRA 293, and Bong Sing Seng v. PP [2023] 8 CLJ 505; [2023] 6 MLJ 219; [2023] MLRAU 171, indicate a sentencing range between 10 and 20 years. The accused in the present case, aged between 33 and 46, still have many productive years ahead of them; 455 what they choose to make of their lives upon release is a responsibility they owe both to themselves and to their families. A sentence of 15 years therefore, reflects the gravity of the offence while preserving the opportunity for rehabilitation. 460 [31]. Accordingly, each accused is sentenced to 15 years’ imprisonment and 12 strokes of the cane, with the sentence to run from the date of arrest. Conclusion [32]. In this case, while the surrounding circumstances establish 465 possession and knowledge beyond a reasonable doubt, the evidence falls short of proving trafficking as charged. However, the circumstances in this case were such that the law permits a conviction for a lesser offence where the proven facts support it. The substitution to possession under section 12(2) 470 DDA read with section 39A(2) DDA ensures that the accused are held accountable in proportion to the evidence established. The sentence imposed reflects the gravity of the quantity involved while allowing the prospect of rehabilitation and eventual reintegration into society. 475 Dated : 10 February 2026 480 [MOSES SUSAYAN] JUDGE 485 HIGH COURT IN MALAYA AT IPOH, PERAK 490 495 Counsel 500 For the Prosecution : Geetha Jora Singh Deputy Public Prosecutor Prosecution Unit [Perak State Legal Advisor 505 Offices] Ipoh, Perak For the Accused no. 1 & 4 : GC Tan Advocates and Solicitors 510 [Messrs GC Tan & Co.] Penang For the Accused no. 2 & 3 : Mohd Hafiz bin Jalaludin (together with Mohd Izhar bin 515 Ahmad Azmi & Mohd Yusri bin Mohd Yusoff) Advocates and Solicitors [Messrs Alif, Hafiz & Partners] Ipoh, Perak 520 525 Headnotes: CRIMINAL LAW: Dangerous drugs – Trafficking and possession – Charge under s 39B(1)(a) DDA read with s 34 Penal Code – Whether custody and control established – Whether knowledge inferred from 530 surrounding circumstances – Accused found inside enclosed lorry compartment in close proximity to open boxes containing methamphetamine – Defence relying on third-party “Che Mat” and alleged investigative gaps – Whether third-party access created reasonable doubt – Whether statutory presumption of trafficking 535 under s 37(da) applicable – Absence of repacking tools, distribution indicators or movement for sale – Trafficking not proven beyond reasonable doubt – Possession (custody, control and knowledge) established – Whether conviction for lesser offence permissible – Application of ss 158 and 169(2) Criminal Procedure Code – Whether 540 particulars of charge supported lesser offence – Substitution to offence under s 12(2) punishable under s 39A(2) DDA SENTENCING – Exceptionally large quantity (426.79 kg) – No direct trafficking activity proved – Range of sentence under s 39A(2) – Consideration of gravity of offence, proportionality, deterrence and 545 rehabilitative objective – Accused aged 33–46 with prospect of reintegration into society.