[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v SUREN A/L RAMACHANDARAN (WA-45A-28-01/2022)

There is sufficient credible evidence proving each and every ingredient of the offence as per charges P2, P3 and P4 pursuant to section 180 (1) read with 180 (4) of the CPC.

The evidence adduced points toward mens rea possession of the impugned drug being subject matter of charges P2, P3 and P4.

As for P2, since the impugned drug is above the statutory limit prescribed under section 37 (da) (xvi) of the DDA 1952, the presumption of trafficking is invoked against the accused, and it is for him now to rebut the said presumption on a balance of probabilities.

As for charges P3 and P4, is for the accused to raise a reasonable doubt on the prima facie case made out by the prosecution against him. Thus, the accused is now ordered to enter on his defence to the offences charged as per charges P2, P3 and P4. The three options available to the accused is now read and explained to the accused. Read to him in the National Language. The accused chooses to testify from the witness box. The Case of the Defence [7] The accused (DW1) elected to give evidence on oath. His defence is centred on the innocent agent narrative. He contends that:

He operates a legitimate car rental business, Avvni Enterprise;

(ii) The Ford Ranger and parking lot 111 were secured for a client, one Logendran, at the behest of DW2, Bala Murali using his Maybank card; and

(iii) The green sling bag (P44) was placed in the Perodua Axia by Logendran, and the accused was unaware of the illicit contents within the bag or the Ford Ranger. Findings of the Court Rebuttal of the Presumption of Trafficking for Charge P2 [8] Under section 37 (da) of the DDA, the burden shifted to the accused to rebut the presumption of trafficking on a balance of probabilities. Having analysed the testimonies of DW1, DW2 and DW3, corroborated by the rental invoice booklet (exhibit D74), this court finds:

The accused has established a reasonable probability that his involvement was transactional;

(ii) The prosecution failed to provide concrete evidence of distribution or carrying out acts of trafficking beyond the mere fact of possession; and

(iii) Consequently, the accused has successfully rebutted the intent to traffic. The burden reverted to the prosecution proving trafficking beyond a reasonable doubt, which, in the face of the business rental narrative, they have failed to do. Failure to Raise a Reasonable Doubt on Possession [9] While the accused successfully rebutted the intent to traffic, he faced a secondary hurdle, raising a reasonable doubt on the element of knowledge and possession. This court finds the claim of total ignorance by the accused regarding the drugs to be untenable for the following reasons:

It is highly improbable that an individual would carry a vehicle’s remote control inside a personal bag containing his own IC and bank cards without exercising some degree of mental and physical control over the contents in the said vehicle;

(ii) The accused was the registered owner of both vehicles and the person who personally paid for the parking lot;

(iii) While the explanation by the accused regarding the rental business is believable enough to rebut a presumption on a balance of probabilities, it is not sufficient to negate the overwhelming circumstantial inference of knowledge of the items, including the impugned drugs he was effectively storing in the vehicles. [10] Furthermore, the evidence led in this trial establishes that the individual known as Logendran is a real person and not a mere fiction. Despite the inability of the prosecution to produce him as a witness, owing to him being untraceable, his police statement was nonetheless tendered to the court. While, this court is cognizant that such a statement carries low probative value because it has not been subjected to cross-examination on material issues, most notably the discovery of the impugned drugs found in the Ford Ranger, he remains a witness material to the case of the prosecution and its narrative. Specifically, his testimony was essential to rebut the explanation given by the accused that he was merely an innocent agent acting for Logendran; consequently, the failure to call him invites the court to invoke an adverse inference under section 114 (g) of the Evidence Act 1950, on the basis that his testimony would have been unfavourable to the prosecution. However, notwithstanding this inference, the fact remains that the accused cannot thereby dissipate from the mens rea possession of the impugned drugs; the act of storing the impugned drugs within the vehicles remains conduct for which the accused has failed to provide a sufficient legal or factual rebuttal, by raising a reasonable doubt to negate his knowledge and control of the dangerous drugs. [11] Existence of Logendran in the unfolding narrative does not in any manner negate the fact that the accused was having possession with knowledge of the dangerous drugs at point of arrest, search and seizure. In fact, the tangible evidence proffered by the prosecution, which has remained unrebutted, strengthens a case of joint possession, together with Logendran. As decided by Taylor J in the oft quoted case of Leow Nghee Lim v Reg (1955) 1 LNS 33, possession need not be exclusive to the accused as two or more persons may be in joint possession of the contraband and the exclusive element of possession means the possessor have the power to exclude other persons from enjoyment of the property. The accused in the present case, is able to do so as the two vehicles legally belongs to him, as he owns them. Further, knowledge on his part of the dangerous drugs, squarely fits a case of possession. The existence of Logendran, only strengthens the possibility of a shared criminal enterprise, with the accused. [12] Finding by this court on conclusion of trial is as follows: For decision at conclusion of trial. Brief grounds of judgment read out in open court. Decision of this court is premised on the facts and law. On a maximum evaluation of all the evidence adduced in this case, pursuant to section 182A of the CPC, the findings of this court are:

The Accused has successfully rebutted the presumption of trafficking.

But he has been unsuccessful in raising a reasonable doubt on the underlying element of possession with knowledge or mens rea possession of the dangerous drugs.

The Accused (DW1) and his witness (DW2) successfully discharged the heavy burden of proof (on a balance of probabilities) to rebut the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act

Despite successfully rebutting the intent to traffic, the Defence failed to create a reasonable doubt that Suren had the requisite knowledge and control (physical and mental possession) over the drugs because of the strong physical links which are: • The circumstantial evidence is too strong to dismiss the element of knowledge • The Perodua Axia car was driven by him at point of arrest and raid. • The Ford Ranger was registered in Suren’s name. • The key and remote for the Ford Ranger were found in his personal sling bag, alongside his ID and bank cards. • Suren paid for the secure Parking Lot 111 where the vehicle was stored. • Due to the direct physical link between Suren's personal items (key/ID) and the vehicle containing the substantial quantity of drugs, the Court can infer that Suren must have had knowledge of the drugs’ presence, even if he believed he was storing them for someone else. • The Accused's explanation, while raising doubt on trafficking intent, does not raise a reasonable doubt on the basic element of possession with knowledge (physical and mental control).

Since the intent to traffic is rebutted, but possession with knowledge is proven beyond reasonable doubt (by the failure of the defence to raise a reasonable doubt), the charge for an offence of trafficking is reduced to one of possession under section 12 (2) of the DDA punishable under section 39A (2) of the DDA.

The Accused is thus found guilty and convicted for the lesser offence of Possession of Dangerous Drugs for – • 217.95g Methamphetamine – charge P2 – section 12 (2) punishable under section 39A (2) of the DDA • possession of 95.92g Cannabis – charge P3 – section 6 punishable under section 39A (2) of the DDA, as originally charged. • possession of 0.22 grams of cannabis – charge P4 – section 6 - punishable under the same provision, also as originally charged. Conclusion [13] The law mandates that when a presumption of trafficking is rebutted the underlying possession remains proven beyond a reasonable doubt, then the court must convict on the lesser charge. [14] On a maximum evaluation of the entire body of evidence, this court finds that the accused had mens rea possession of the impugned drugs, but lacked the specific intent to traffic. Accordingly, the court orders as follows:

Charge P2 – the charge under section 39B (1)(a) DDA is reduced to possession under section 12 (2) DDA and punishable under section 39A (2) DDA. The accused is found guilty and convicted of this reduced charge; and

(ii) Charges P3 and P4 – the accused is found guilty and convicted of possession of the impugned drugs. [15] Next on the appropriate sentence meted out by this court, after having heard the plea in mitigation by the accused and submission on aggravating factors by the prosecution, is accordingly as follows: For Sentence

Plea in mitigation DC 3 charges (P2, P3 and P4).

P2 - charge reduced to offence punishable under section 39 A (2) DDA -

217.95 grams - minimum 5 years, maximum 30 years and whipping 10 strokes (mandatory)

P3 - cannabis - 95.92 grams - section 6 DDA - punishable under section 39A

- minimum 5 years, maximum 30 years and whipping 10 strokes (mandatory).

P4 - 0.22 grams of cannabis - punishable under section 6 of the DDA - imprisonment not more than 5 years or fine. Accused 40 years old. Arrest and remand since 11.8.2021. Unmarried and single. Studied a degree in IT. Own business - car rental. Accused was staying with his parents - aged. He supports the family. Parents - unhealthy - many sicknesses. Accused - heart disease and asthma - can be life threatening if medical supervision is not given. Physically vulnerable - long custodial sentence would lead him to suffer more. First offender - no previous conviction (confirmed by DPP) – a strong mitigating factor before sentencing. R v Ball - public interest is best served - if the offender is given a chance to move away from criminal ways to honest living. He is remorseful. Not to make such mistake in future. P2 and P3 - mandatory 20 strokes. Taking that into account - pray for a minimum sentence of imprisonment - of 6 to 10 years. P2 - not more than 8 years. P3 - not more than 6 years. P4 - minimum imprisonment of 1-month imprisonment. All sentences of imprisonment to run concurrently, as it was a joint trial. Accused be given a second chance - pray for a lower imprisonment sentence. DPP No objection for the imprisonment to run concurrently. For P2 - reduced charge - 217.95 grams of meth. Recent CA case - decided on 11.3.2025 - 312 grams of meth - on appeal - sentence was increased to 12 years from the date of arrest and no whipping because the accused was over 50 years old. Another case - 104.91 grams of meth - the CA decided based on the weight - 10 years’ imprisonment and 10 strokes of whipping. This is a full trial case - large quantity of drugs - meth and cannabis - I pray the weight to have some bearing on the sentence - and to reflect the seriousness of the offence. Trend of sentencing - 8 to 10 years - based on the type of drugs. DC Fed Court - meth 727.1 grams - 9 years’ imprisonment - no whipping because he is above 50 years old. CA - cannabis - 502.9 grams - 9 years’ imprisonment. Cases - much higher in weight. To take into account the whipping of 20 strokes. Accused I am not well. My parents are very ill and old. No one to look after like me. My siblings - have their own life to look after the family. My parents are to be sent to the old folks’ home. Pray for mercy and leniency. I am aware of the mandatory sentence of whipping.

After having considered the following factors Facts and circumstances of the case.

Plea in mitigation.

Public interest.

Nature of offence - possession of dangerous drugs - to be abhorred.

Accused is to be whipped with 20 strokes. The following is the sentence meted out –

P2 - 7 years’ imprisonment and 10 strokes of whipping.

P3 - 6 years’ imprisonment and 10 strokes of whipping.

P4 - 1-month imprisonment. All sentences of imprisonment to run concurrently and to take effect from the date of arrest. Sentence of whipping of up to 20 strokes to take effect consecutively. DC There are two cars - Ford Ranger No. RR7597 (P62) and Perodua Axia No WD 599F (P63). Pray for the cars to be released. DPP DC to write in to the AGC for consideration of release. DC agrees to write in for progress of the matter. [16] In determining the appropriate custodial sentence, this court has duly considered the operation of law regarding the charges in P2 and P3. The accused is not spared the sentence of whipping, which carries a mandate of 10 strokes for each charge. Although the relevant penal provisions prescribe both imprisonment and whipping, these two forms of punishment are distinct and specific under the law. Consequently, it is appropriate that they be treated as separate components of the overall sentence meted out by this court. Given that the accused is already subject to a total of 20 strokes of whipping, this court deems it fit for him to serve a sentence of imprisonment, which is proportional. Thus, the sentence of seven (7) and six (6) years imprisonment is meted out, to take effect concurrently, which this court finds it to be reasonable, sufficient and proportional to the gravity of the offences and the overall criminality of the accused. Convicted and Sentenced Accordingly. Dated 3 May 2026 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties DPP Zaileen Nadia Zubir of the Attorney General’s Chambers for and on behalf of the Prosecution. DC Dato’ Rajpal Singh together with DC Tiew Poh Nie of Messrs. Rajpal, Firah & Vishnu for and on behalf of the accused.