[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v NG BOON KIAN (WA-45-24-04/2022)

1.

NG BOON KIAN (IC NO. 770713 – 10 – 5381) MOHAMMAD HAFIZ CHEAH BIN ABDULLAH (IC NO. 680128 – 10 – 7045)

TAN OANH TUYEN (PASSPORT NO. C8914587) JUDGMENT Preface [1] Accused Ng Boon Kian (OKT 1) and Mohammad Hafiz Cheah bin Abdullah (OKT 2) were charged with multiple drug offences. It extends to both trafficking of dangerous drugs and also possession of it and poison, in furtherance of common intention of both of them. As for the charge for an offence of drug trafficking, the trial concluded with the court only finding them guilty of the offence of possession of dangerous drugs and not trafficking of the same. This judgment outlines involvement of other accused persons; maximum evaluation of the evidence proffered in the case; this court's findings; legal principles applied; and sentences imposed. [2] Two other individuals who were foreigners, Hu Rong (OKT3) and Tan Oanh Tuyen (OKT4), were jointly charged with them. Save for the offence of drug trafficking, they were jointly charged for possession of dangerous drugs and poison, also in furtherance of common intention of all of them. They were acquitted of the charges by this court at the end of the prosecution's case, as the prosecution was unsuccessful in proving a prima facie case against both of them for the said charges, simply because although they were arrested together at the premises in which the dangerous drugs and poison were found, the evidence adduced does not in any manner whatsoever link them with the said drugs and poison. They were found to be passive occupants at the premises. This court’s decision to acquit and discharge them at that stage, was after a maximum evaluation of all the evidence tendered by the prosecution and vehemently cross-examined by the accused persons via their counsel. [3] For the record, as for the case involving OKT 2, 3 and 4, no appeal is made to the Court of Appeal (CA), either by the prosecution or OKT 2. This appeal is only by OKT 1. Charges [4] Charges against the accused persons, are for the following offences. Save for the first charge which involves OKT 1 and OKT 2, the remaining charges involves OKT 1, 2, 3 and 4. • First Charge (P2): Trafficking 911.57 grams of methamphetamine (meth), an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA/Act 234) read with Section 34 of the Penal Code (PC/Act 574) and punishable under section 39B (2) of the DDA. • Second Charge (P6): Possession of 20.14 grams of meth, an offence under section 12 (2) of the DDA read with section 34 of the PC, and punishable under section 39A (1) of the DDA. • Third Charge (P4): Possession of 4.48 grams of meth, an offence under section 12(2) of the DDA read with section 34 of the PC and punishable under section 12 (3) of the DDA. • Fourth Charge (P8): Possession of 2.19 grams of meth and ketamine, an offence under section 12(2) of the DDA read with Section 34 of the PC and punishable under section 12 (3) of the DDA. • Fifth Charge (P10): Possession of 0.02 grams of heroin and monoacetylmorphines, an offence under section 12(2) of the DDA read with section 34 of the PC and punishable under section 12 (3) of the DDA. • Sixth Charge (P12): Possession of 0.64 grams of flubromazolam, an offence under section 30(3) of the Poisons Act 1952 read with section 34 of the PC and punishable under section 30 (5) of the Poisons Act 1952. Case of Prosecution and Maximum Evaluation of Evidence Adduced [5] To reiterate, this court had meticulously considered all evidence, submissions, and legal arguments put forth by the prosecution, whose witnesses were cross-examined at length by the defence. [6] It had come to light that the case of prosecution rests on the argument that OKT1 and OKT2 had control of the apartment, in which the assortment of drugs and poison was found, thus establishing possession with knowledge (mens rea possession) of the said drugs. The evidence adduced also showed that OKT2 was tenant of the apartment and handled payment of rental for it. OKT 1 too had paid rental, thus fortifying a causal link with the premises. On the aspect of control over the premises by OKT 1 and OKT 2, it was so proved by the prosecution, and there is no evidence to the contrary. Real evidence in the form of tenancy agreement P16, shows OKT 2 had agreed to rent the premises with effect from 9.10.2020 to 8.10.2021. Rentals were paid to the owner, SP1 and proof of payment, P17 was in the name of both OKT 1 and OKT 2. It is also in evidence that OKT 2 had been identified by the real estate agent SP2, and it was revealed that OKT 2 had used another person’s name to sign the tenancy agreement to prevent disclosure of his identity, on the pretext that since he is a Muslim, he does not wish to reveal that he was staying at the premises with his companion cum partner. [7] Therefore, this court acknowledges the strength of circumstantial evidence tendered by prosecution pointing toward establishing a strong link between the accused OKT 1 and OKT 2 having control of the premises and inside it, the drugs and poison were found. Evidence adduced by the prosecution was sufficiently strong to overcome the defence by both of them on non-exclusive possession of the premises as well as alternative scenarios advanced by them. It is apparent that they were found together with the drugs and poison stored at the said unit. However, their arguments are, that accessibility of the premises is to all and sundry, thus someone else is also in a position to store or plant the drugs at the said unit. But the fact remains at the material point of time, it was only OKT 1 and OKT 2 who were residing there with their female companion OKT 3 and OKT 4, as admitted to by them. Circumstantially, it has been proven by the prosecution that OKT 1 and OKT 2 were found with physical possession of the impugned drugs stored at room 1 and 2; the Lazada box (P23) containing drugs stored at room 3, forming subject matter of the first charge P2. Room 3 at the premises was maintained as a store room. Thus, for all intents and purposes, both OKT 1 and OKT 2, were able and willing to deal with the said drugs and poison as they wish, since it was at their disposal. (See by analogy the case of PP v Kau Joo Huat (1988) 2 MLJ 91). [8] On that basis, it was found by this court that the impugned drugs and poison, subject matter of all the charges against them, were in their mens rea possession at the material time of arrest, search and seizure by the raiding officer (RO) SP7. This court on the evidence adduced had also found that there has not been direct evidence of trafficking of the dangerous drug meth as stated in the first charge P2, in furtherance of common intention of both OKT 1 and OKT 2. However, section 37 (da) (xvi) of the DDA allows for presumed trafficking of the said drugs, as weight of the dangerous drugs meth, exceeds 50 grams. [9] Ruling by the court at the intermediate stage of the trial, at end of the prosecution case is the following: For decision at the end of case of prosecution. Brief grounds of judgement read out in open court.

OKT 1 led the raiding team to the condo unit at 25-01, Benteng 8, No. 439, Jalan Klang Lama, Petaling, Brickfields, where the impugned drugs and poison were found.

OKT 2 is the tenant at the unit and he was present inside the unit when the raiding team entered, as he had opened it up for them.

Before leading to discovery, OKT 1 was arrested with one Tin Kee Cheong (TKC) and Naziah but they were not called as witnesses for prosecution.

Are they material to the unfolding of the prosecution narrative? They may not be as they do not have any connection with the condo unit, pursuant to the evidence tendered by the prosecution.

OKT 1 stays there with OKT 3 (girlfriend).

OKT 2 stays with OKT 4 (girlfriend).

So OKT 3 and 4 are only companions of OKT 1 and 2.

When the raid took place, they were there at the unit - other than being found there at time of raid, there is no incriminating evidence connecting them to the impugned drugs and poison.

But there is evidence in the form of CCTV footing, OKT 1 was carrying a Lazada box into the unit.

The same Lazada box with the impugned drugs were found in the unit during the raid.

Counsel for OKT 1 had argued that the CCTV footing of OKT 1 carrying the Lazada box has no bearing to the narrative of the prosecution as it was recorded 4 days before raid. So, issue raised is that the drugs could have been stored by someone else other than OKT 1. He also went on to say it could be TKC and/or Naziah. But the evidence tendered shows the Lazada box was not found with OKT 1, TKC and Naziah when they were together. It was only found during the raid at the unit, and captured by the CCTV footing when OKT 1 was carrying the said box into the impugned unit. There is also no evidence showing there were other people at the unit, aside OKT 1, 2, 3 and 4.

This is purely a case of recovery of drugs and poison populated at the unit when the raid took place. The unit seems to be a storage place for the impugned drugs and poison. The weight of drugs as for the first charge is large in quantity.

On that score, on a maximum evaluation of the evidence tendered to this court, this court finds there is a prima facie case established against OKT 1 and 2 for all the charges preferred against them. As for the charge of trafficking of dangerous drug meth as in P2, they were presumed to be trafficking of the said drugs pursuant to section 37 (da) of the DDA. Thus, they are ordered to enter on their defence.

As for OKT 3 and 4, since there is nothing incriminating connecting them to the drugs, they are acquitted and discharged of the charges against them. Case of the Defence [10] Both OKT 1 and OKT 2 opted to testify under oath. The defence advanced by OKT 1 is the following: He was arrested with two others, Tin Kee Cheong and Noraziah bt Mohd Yusof, at a different location (No. 18-3A, Gen KL Residence) and was later brought to the apartment at No. 25-01, Benteng 8, Jalan Klang Lama. The second, third, and fourth accused were already at the apartment when the police raided it. OKT 1 did not have an access card or keys to the apartment; the police instructed the security guard to use his card and the second accused opened the door for them. OKT 1 and the second accused both testified that the police searched the three rooms for drugs without the accused being present. The arrested individuals were instructed to squat in the living hall and were unable to see what the police were doing in the rooms. Both accused denied any knowledge of the drugs found by the police. OKT 1 admitted to bringing a Lazada box to the apartment on or about 7.2. 2021, which contained Chinese New Year items. He left the box with the first, second, and third accused and did not know what happened to it afterward. There is doubt as to whether the box OKT1 brought was the same one found by the police in Room No. 3 on 13.2.2021. OKT 2 was also unsure if it was the same box. Room No. 3 was never locked and was accessible to anyone in the apartment at any time. There is no evidence that OKT 1 had a key to the room. Even if it was the same Lazada box, it does not mean OKT 1 placed the drugs inside, as anyone with access to Room No. 3 could have done so between 7.2.2021 and 13.2.2021. OKT 1 stated he did not go to the apartment between 7.2.2021 and 13.2.2021. OKT 2 was unsure if OKT 1 visited during that period. The prosecution did not produce any evidence regarding the whereabouts of the Lazada box during that time. OKT 2 rented the apartment and sublet Room No. 2 to OKT 1, who paid the landlord RM2,000 as advance rental for the room. OKT 1 rented Room No. 2 for his girlfriend (OKT 4) to stay in and would only visit and stay overnight occasionally. OKT 1 argues he had no physical custody, control, or knowledge of the drugs found in the apartment, including those in Room No. 2. Since OKT 4 occupied Room No. 2, she should explain the presence of drugs there. The defence submits there is a "clear break in the chain of evidence" regarding the Lazada box because there is no proof of who had custody or control of it from 7.2.2021 to 13.2.2021. The prosecution failed to call OKT 3 and OKT 4 as material witnesses, and the benefit of this doubt should be given to OKT 1, as their testimony might have been favourable to him. Evaluation [11] This court must consider the accused's defence, no matter how weak or unreasonable, and view all evidence objectively. The defence argues that OKT 1's story is neither weak nor unreasonable. Even if the court does not believe the defence, it must consider if it raises a reasonable doubt about the accused's guilt. The defence submits that OKT 1's defence has raised sufficient reasonable doubt to warrant his acquittal from the charge of drug trafficking. The defence prays for the court to acquit OKT 1 of all charges. [12] The defence of bare denial by both OKT 1 and OKT 2, was controverted by the prosecution. The seeming contradiction between testimony of OKT 1 and the RO on his presence with one Tin Kee Cheong (TKC) at the premises during the arrest, search and seizure of dangerous drugs, came to nothing as it was confirmed by the RO that OKT 1 was arrested together with TKC, and OKT 1 was brought to the premises. The claims made by the defence on non-exclusive possession was weak and not credible, and it did not raise a reasonable doubt in the case against them, particularly so on their feeble attempt to shift blame onto OKT 3 and OKT 4 who were acquitted by this court. [13] Focus of the defence was on the challenge mounted on control of the premises and possession of the dangerous drugs and poison found inside it with the requisite knowledge. It was argued neither OKT 1 and OKT 2 had exclusive control over the premises, as others including OKT 3 and OKT 4 had access to it. Further, it was also highlighted that there was a clear break in the chain of evidence with regard to the Lazada box, containing the largest quantity of drugs, attracting the offence of drug trafficking, claiming that anyone else could have placed the said box containing drugs inside the premises. It was claimed by OKT 1 that he did not go into the premises for the period from 7.2.2021 to 13.2.2021. But the proven fact remain that the said box was carried into the premises effortlessly by OKT 1, as depicted by tangible evidence in the form of a CCTV recording. This court could take judicial notice that OKT 1 need not be present at the premises at all times, but the fact remains that the Lazada box was carried into the premises by him and left there, as it was the same box found by the raiding officer and his team on the day of raid and seizure. Legal Principles Applied and Findings [14] After evaluating all the evidence adduced pursuant to section 182A

read together with section 182A (2) of the Criminal Procedure Code (CPC/Act 593), this court was satisfied that the defence and explanation put forward was insufficient to raise a reasonable doubt, thus the case of prosecution has been proven beyond all reasonable doubt. The absence of any evidence from OKT 1 that casts a reasonable doubt on the prosecution’s case renders the prima facie case established is now proven beyond reasonable doubt, save for the offence of drug trafficking as per the first charge, P2. (See PP v Mohd Radzi Abu Bakar (2006 1 CLJ 457) For charge P2, premised on the same facts and evidence adduced, pursuant to section 169

of the Criminal Procedure Code (CPC/Act 593), this court had found both OKT 1 and OKT 2 guilty of the offence of possession of dangerous drug meth under section 12 (2) of the DDA and punishable under section 39A (2) of the DDA. Reasons are the following: • Claim by the defence, to shift blame to the acquitted individuals OKT 3 and OKT 4 was unwarranted in law as it was not so advanced during cross-examination of the prosecution witnesses (PWs). This goes to show fragility of their defence and the shifty stance taken on by them. • It is recognized by this court that the prosecution's evidence, while sufficient to prove possession, did not meet proof of trafficking beyond a reasonable doubt, in respect of the of the first charge involving 911.57 grams of meth. • This court's view is that while the accused had possession of the drugs, proof by the prosecution falls short of trafficking albeit the invocation of presumed trafficking pursuant to section 37 (da)

(xvi) of the DDA. It was successfully rebutted by both OKT 1 and OKT 2, as there were no further overt acts by both them in relation to the impugned drugs forming subject matter of the charge P2. Till conclusion of trial, the prosecution was only able to show to the court that the said impugned drugs were stored at the premises by both OKT 1 and OKT 2. It is also in evidence, that the raid of the RO on the premises is after arrest of OKT 1 with TKC and Naziah, hence in the absence of their evidence, they could have been altogether co-possessors of the impugned drugs for the purpose of trafficking. • The evidence of control over the rented premises and physical access was sufficient to prove that OKT 1 and OKT 2 were in joint possession of the significant quantity of drugs, but lacks independent evidence of distribution and sale for the presumption of trafficking to militate against them. As such, finding of guilty and conviction for the lesser offence of possession is warranted in accordance with the facts and circumstances of the case. [15] It is also apparent that entire case of the prosecution against OKT 1 and OKT 2 hinges on the successful rebuttal of the statutory presumption of trafficking. Nonetheless, they had failed to raise a reasonable doubt on mens rea possession of the impugned drugs and poison but they had been successful in displacing the presumption of trafficking for the offence in charge P2. The law is also trite, whereby to rebut the presumption of trafficking, both OKT 1 and OKT 2 must adduce admissible evidence to displace the balance in their favour, which is by far a lower standard of proof expected of them than proving a case beyond reasonable doubt, bestowed on the prosecution. For the purpose of proof of charge P2, they have been successful to show to the court that they were not alone dealing with the impugned drugs, as the testimony of the RO shows beyond doubt that the case against OKT 1 and OKT 2 in respect of charge P2, is one of recovery of drugs, preceded by the arrest of OKT 1 together with TKC and Naziah. [16] The most critical factor is the absence of independent evidence that normally accompany a trafficking operation. There is no evidence of sale or distribution as the facts do not mention the discovery of weighing scales or other paraphernalia for dividing the drugs, like small, individual packets or packaging materials meant for street sale, unexplained amounts of cash consistent with drug sales. The impugned drugs were simply found inside the premises. This supports a narrative of storage rather than trafficking. [17] While the quantity of drugs makes a consumption claim highly unbelievable, but as it was found inside the premises as shown in P23, it is a place of storage for future use. Both OKT 1 and OKT 2 were charged premised on joint control of the premises and the prosecution could not successfully pin the intent to traffic on either or both of them. OKT 1 was arrested outside the premises. While he had access and paid rent, proving control over the premises, his physical presence only at the time of raid undermines a claim that he was actively engaging in a trafficking act at the premises. The successful rebuttal of the presumption hinges on this court’s acceptance that while both OKT 1 and OKT 2 knew of and controlled the impugned drugs, as mens rea possession is proven, the surrounding evidence, made it equally and more probable that the purpose of possession was for something other than trafficking, like bulk storage for use or simply being the custodian for a third party who could not be definitively linked to either of the accused. [18] Hence, this is a fit and proper case for the court to conclude that the intent element of trafficking, despite the application of presumption of trafficking, is not proven, but the physical element of possession with knowledge remains proven, justifying the reduction to a charge for an offence of drug possession. [19] It is also concluded that the conviction rests on a finding of passive possession due to the absence of an overt act demonstrating trafficking. This conclusion is the ensuing result of this court’s decision to reduce the charge after the presumption of trafficking was rebutted. The lack of an overt act, such as selling, packaging or preparing to distribute was the crucial gap the defence had exploited. The evidence only proved they were custodians of the drugs by virtue of control over the premises. This amounts to passive mens rea possession. (See the case of Mohammad Toqeer Afzal PR (2017) 5 MLJ 646 CA, a decision by Abdul Karim JCA (later FCJ). [20] In sum total, at the highest the prosecution could prove that both OKT 1 and OKT 2 had control over the premises and the impugned drugs were there and they knew it was there. It is not proven that both OKT 1 and OKT 2 took steps by way of overt acts to move, divide or sell the drugs. Therefore, the presumption of trafficking was displaced because the evidence could not move beyond passive possession to demonstrate the active intent inherent in an overt act of trafficking. The overt acts are actions demonstrating intent to traffic. These actions are physical manifestations that possession is not for personal use but for sale or distribution. The absence of these facts is what allowed both the accused persons to rebut the presumption. To reiterate, such overt acts include – packaging and preparation; presence of paraphernalia for breaking the bulk; individual packets used to portion the drug for sale; large unexplained cash; incriminating messages or calls; and of course, result of surveillance of the premises indicative of walk-up sales. [21] In the absence of such overt acts, this court is justified in finding that the prosecution’s evidence was limited to the quantity and the accused persons’ control over the premises, without the above overt acts being convincingly proven. This had paved way to the defence to successfully argue that the possession though large, was passive storage and not an active step towards distribution. On that score, one has to be mindful of the defences that could be raised by the accused, as decided by His Lordship Abdul Rahman Sebeli JCA (later CJSS) in the case of PP v Ahmad Juweni & Anor Appeal

6 CLJ 630 CA, in his usual fashion, as the following: [16] But this is not to say that just because the presumption of trafficking under s. 37 (da) had been activated, the only option open to the respondent in answer to the trafficking charges was to put up the defence that the drugs were not for the purpose of trafficking, in rebuttal of the presumption under s. 37 (da). It was entirely for him to decide on his line of defence. [17] He could decide to put up the defence that the drugs were not for the purpose of trafficking in rebuttal of the presumption under s. 37 (da), or he could put up the defence of no knowledge of the drugs in rebuttal of the presumption under s. 37 (d), (which does not apply presently, as the court has made an affirmative finding of possession before invoking the presumption of trafficking) or he could put up the defence that he was even in custody or control of the drugs, i.e. that he was not even in physical possession of the drugs. … [26] The defence of having no knowledge of the presence of the drug, such as the defence that the respondent put up in the present case (also in the present case), is a different proposition altogether. Such defence is a total avoidance of criminal liability as the accused expects a complete acquittal because if he succeeds in proving that he had no knowledge of the drug, he is not only entitled to be acquitted of the trafficking charge but is also not liable to be convicted of the lesser offence of possession because knowledge is an essential ingredient of both the offence of trafficking and the offence of possession … [22] Given the circumstances of the case, the unlocked room and the time gap in the chain of custody of the Lazada box, the prosecution could not conclusively prove the element of trafficking against OKT 1 and OKT 2. Since it is only possession of dangerous drugs, subject matter of charge P2, the remaining charges which bears the offences of possession of drugs and poison, had enabled this court to arrive at a swift finding of mens rea possession, as the entire assortment of dangerous drugs and poison were with them in the premises which were under their control and custody. Finding of Guilty and Conviction [23] Ensuing from the above, both accused persons OKT 1 and OKT 2 are found guilty and convicted on all the charges as above. Brief grounds of judgment read out in open court at conclusion of trial is the following: For decision at conclusion of trial Brief grounds of judgment read out in open court. Evaluating all the evidence adduced in this case, the following are this court’s findings: • the defence has argued that they have successfully raised a "reasonable doubt." • The prosecution's case, while built on a solid foundation of circumstantial evidence regarding tenancy and control of the premises in which the impugned drugs and poison were found, and although vulnerable to the issues and arguments raised by the defence about non-exclusive possession and the break in the chain of evidence concerning the Lazada box, but with the prevailing evidence led by the prosecution, only leaves the case of prosecution against the two accused persons intact. • The most serious charge of drug trafficking, under section 39B of the DDA is directly tied to the drugs in Room No. 3, which was unlocked and accessible to multiple people. The defence has argued that someone other than the accused could have placed the drugs in the box during the six-day window when OKT1 was allegedly not present and the whereabouts of the box were unknown. • For the court to convict, it must be convinced beyond a reasonable doubt that: o The accused had knowledge of the impugned drugs and poison. o The accused had mens rea possession of the drugs and poison. • The defence’s arguments directly challenge both these points. • The lack of exclusive possession, the non-exclusive access to Room No. 3, and the critical time gap concerning the Lazada box are not "bare denials." They are substantive arguments that introduce reasonable alternatives to the prosecution's theory of the case. However, it is this court’s view, the defence has been unsuccessful in raising a reasonable doubt to warrant an acquittal, particularly on the most serious charge of trafficking. The prosecution's case which strongly rely on the inference of possession and knowledge from the accused's presence and tenancy, which was attempted to be countered by highlighting the non-exclusive nature of that presence and control, has been unsuccessful. • The legal principle is that if a reasonable doubt exists, even if the court disbelieves the defence, the accused must be acquitted. However, after having carefully weighed the credibility of the witnesses, the prosecution's circumstantial case is strong enough to overcome the plausible alternative scenarios presented by the defence. • Given the high standard of beyond a reasonable doubt, the defence’s arguments are feeble as against the evidence tendered by the prosecution. The feebleness is demonstrated by both the accused persons shifting the blame on to the two women accused persons who were acquitted. That shift is unwarranted in law, as it was never their defence which was advanced during the case of the prosecution when the prosecution witnesses were cross-examined at length. • But considering the nature of the evidence in this case, for all the preferred charges against both the accused persons, at the conclusion of trial, one of which is that OKT 1 at point of arrest, was brought to the premises and not arrested in situ, there is only evidence of possession proven against both of them, including the charge where the subject matter is 911.57 grams of Methamphetamine. Thus, premised on the same evidence adduced in the case, the accused is found guilty and convicted on the following:

For the first charge – possession of 911.57 grams of Methamphetamine, pursuant to section 12 (2) of the DDA read together with section 39A (2) of the DDA, read with section 34 of the Penal Code.

For the second charge – possession of 20.14 grams of methamphetamine, pursuant to section 12 (2) of the DDA read together with section 39A (1) of the DDA and section 34 of the Penal Code.

Third charge – for possession of 4.48 grams of meth, pursuant to section 12 (2) of the DDA punishable under section 12 (3) of the DDA read with section 34 of the Penal Code.

Fourth charge – for possession of 2.19 grams of Methamphetamine and Ketamine, an offence pursuant to section 12(2)/ (3) of the DDA read with section 34 of the Penal Code.

Fifth charge – for possession of 0.02 grams of heroin and monoacetylmorphines, an offence pursuant to section 12(2)/ (3) of the DDA read with section 34 of the Penal Code.

Sixth charge – for possession of 0.64 grams of Flubromazolam, an offence pursuant to section 30(3) of the Poisons Act 1952 read with Section 34 of the Penal Code. [24] As for the first charge, it was only for an offence of possession of 911.57 grams of meth, whereas for the remaining charges to wit, possession of dangerous drugs and poison, are for the cited offences under the DDA and Poisons Act and punishable under the same law, in the following sequence: • First Charge: Possession of 911.57 grams of meth, an offence under section 12(2) of the DDA read with section 34 of the PC, punishable under section 39A (2) of the DDA. • Second Charge: Possession of 20.14 grams of meth, an offence under section 12(2) of the DDA read with section 34 of the PC and punishable under section 39A (1) of the DDA. • Third Charge: Possession of 4.48 grams of meth, an offence under section 12(2) of the DDA read with section 34 of the PC, punishable under section 12(3) of the DDA. • Fourth Charge: Possession of 2.19 grams of meth and ketamine, an offence under section 12(2) of the DDA read with section 34 of the PC, and punishable under section 12 (3) of the DDA. • Fifth Charge: Possession of 0.02 grams of heroin and Monoacetylmorphines, an offence under section 12(2) of the DDA read with section 34 of the PC, punishable under section 12

of the DDA. • Sixth Charge: Possession of 0.64 grams of poison flubromazolam, an offence under section 30(3) of the Poisons Act 1952 read with Section 34 of the Penal Code, punishable under section 30 (5) of the Poisons Act 1952. [25] Before sentencing OKT 1 (since OKT 2 is not appealing) according to law pursuant to section 183 of the CPC, this court had then proceeded to hear their plea in mitigation, which comprises the following:

DC for Accused 1 – Pray for a lenient sentence.

Father is physically incapacitated

Did not resist arrest – no violence involved.

No agent provocateur (AP) involved.

Sentence to run from the date of arrest and concurrently. First charge – minimum 5 years, whipping not less than 10 strokes, maximum 30 years imprisonment. Second Charge – 2 to 5 years, whipping 3 to 9 years. Third charge – fine not exceeding RM100,000 and imprisonment not exceeding 5 years or both Fourth charge – same Fifth charge – same Sixth charge – fine not exceeding RM10,000 or imprisonment not exceeding 5 years or both. …

1.

Kesalahan serius Mohon satu hukuman yang berat – yang deteren.

Faktor peribadi hanya boleh dipertimbangkan sedikit.

Mohon hukuman berasingan – sebab dadah yang berbeza.

After having considered the following –

Plea in mitigation by the accused persons

Aggravating factors submitted by the DPP

Nature of the offence Manner in which the impugned drugs were found Sentence [26] Having considered his plea in mitigation as well as submission on the aggravating factors by the prosecution, specially so weight of the impugned drugs and poison, this court had decided to pass the following sentence with its respective effect: Ng Boon Kian (OKT1) • First Charge: Twelve (12) years imprisonment and whipping ten

strokes. • Second Charge: Three (3) years imprisonment and whipping three (3) strokes. • Third Charge: Three (3) years imprisonment. • Fourth Charge: Two (2) years imprisonment. • Fifth Charge: One (1) year imprisonment. • Sixth Charge: One (1) year imprisonment. The above sentences are to take effect in the following manner, which is in sync with section 282 (d) of the CPC: For the sentences of imprisonment imposed for the first, second, and third charge, it is to run consecutively - adding up to a total of eighteen (18) years. Sentences of imprisonment imposed for the fourth, fifth, and sixth charges are to run concurrently with the sentence meted out for the first and second charge. Sentence of whipping which adds up to a total of thirteen (13) strokes is to be inflicted on him consecutively. Finally, the sentences of imprisonment imposed are to take effect from the from the date of arrest of OKT 1 on 13.2.2021. Dated 30 November 2025 SGD Muniandy Kannyappan Judge, High Court (2) Criminal Kuala Lumpur Parties DPP Izalina Hj Abdullah of the Attorney General’s Chambers (AGC) for and on behalf the prosecution. DC JT Chong of Messrs. JT Chong Associates for and on behalf of the First Accused (OKT 1).