[TIMBALAN PENDAKWA RAYA] v Cheng Sim Chen (Zheng Xincheng) (JA-45A-19-04/2021)

NG BOON KEAT (NO K/P: 940513-01-5997) DIBICARAKAN BERSAMA [PERBICARAAN JENAYAH NO: JA-45A-23-04/2021]

LIM QI YAN (NO K/P: 951027-04-5609) GROUNDS OF JUDGMENT BACKGROUND [1] The charges proffered against the five (5) Accused before this Court are as follows: a) CHENG SIM CHEN (FIRST ACCUSED) has been charged with THREE (3) CHARGES, namely: i) “Bahawa kamu pada 15 Mei 2020 pada jam lebih kurang 2020 hrs bertrmpat di DHL Express Sdn Bhd, No. 69, Jalan I-Park, SAC 8, Taman Perindustrian I-Park SAC Senai, dalam daerah Kulai, di dalam Negeri Johor darul Ta’zim, telah memiliki dadah berbahaya jenis 3, 4- Methylenedioxymethamphetamine (MDMA) berat bersih 27.95 gram, dan dengan itu kamu telah melakukan suatu kesalahan dibawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen yang sama. (CASE 19) ii) “Bahawa kamu pada 15 Mei 2020 pada jam lebih kurang 2020 hrs bertempat di DHL Express Sdn Bhd, No. 69, Jalan I-Park, SAC 8, Taman Perindustrian I-Park SAC Senai, dalam daerah Kulai, di dalam Negeri Johor darul Ta’zim, telah mengedar dadah berbahaya jenis Methamphetamine berat bersih 691.57 gram, dan dengan itu kamu telah melakukan suatu kesalahan dibawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen 39B(2) Akta yang sama. (CASE 21) iii) “Bahawa kamu pada 15 Mei 2020 pada jam lebih kurang 2020 hrs bertempat di DHL Express Sdn Bhd, No. 69, Jalan I-Park, SAC 8, Taman Perindustrian I-Park SAC Senai, dalam daerah Kulai, di dalam Negeri Johor darul Ta’zim, telah memiliki dadah berbahaya jenis Ketamine berat bersih 218.01 gram, dan dengan itu kamu telah melakukan suatu kesalahan dibawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen yang sama. (KES 24) b) CHIN KOH LUN (SECOND ACCUSED) and NG BOON KEAT (THIRD ACCUSED) are jointly charged as follows: “Bahawa kamu pada 15 Mei 2020 pada jam lebih kurang 2020 hrs bertempat di DHL Express Sdn Bhd, No 69, Jalan I-Park, SAC 8, Taman Perindustrian I-Park SAC Senai, dalam daerah Kulai, di dalam Negeri Johor Darul Ta’zim, telah mengedar dadah jenis Methamphetamine berat bersih 730.99 gram, dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan.( CASE 22) c) TEE YU HENG (FOURTH ACCUSED) dan LIM QI YAN (FIFTH ACCUSED) were jointly charged as follows: “Bahawa kamu pada 15 Mei 2020 pada jam lebih kurang 2020 hrs bertempat di DHL Express Sdn Bhd, No 69, Jalan I-Park, SAC 8, Taman Perindustrian I-Park SAC Senai, dalam daerah Kulai, di dalam Negeri Johor Darul Ta’zim, telah mengedar dadah jenis Methamphetamine berat bersih 1064.98 gram, dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B Akta Dadah Berbahaya 1952 (Pindaan 1980) dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan.( CASE 23) [2] During the course of trial, these 5 separate charges were heard together simultaneously. [3] All the Accused pleaded not guilty to the charges and claimed trial. The prosecution has called 18 prosecution witnesses and presented 45 exhibits to prove their case. THE PROSECUTION’S CASE [4] This case involves drugs found at DHL Express Sdn Bhd, No. 69 Jalan I-Park SAC 8, Taman Perindustrian I-Park SAC Senai, Johor (“DHL Senai”) on 15.05.2020 at approximately 8:20 pm, comprising of: a) 3 (three) boxes each containing a set of speakers and woofers, wherein the speakers contained hidden aluminum foil packages containing dangerous drugs; b) 1 (one) box containing samples of wooden boards, wherein between the boards were inserted packages wrapped in tape containing dangerous drugs; and c) 4 (four) packages containing samples of wooden boards, wherein between the boards were inserted packages wrapped in tape, containing dangerous drugs (the seized items) as stated in Senai Police Report No. 2564/20 (Exhibit P15). [5] Acting on information, on 15.05.2020 at approximately 8:20 pm, Insp Than Jia Jun (SP3) along with a team of police officers, went to DHL Senai to meet the then manager of DHL Senai, Mr. Hiew Chee Yung (SP18) at it’s Meeting Room. There, SP3 received and examined the seized items from SP18 as stated in the Seizure List (Exhibit P14) and Senai Police Report No. 2564/20 (Exhibit P15). [6] SP3 then seized the items as they were suspected of containing dangerous drugs for further action. The seized items were then submitted and identified by SP3 based on the markings made on the seized items as per Exhibit P4 to P11. [7] On 16.05.2020 at approximately 0630 hours, SP3 handed over the seized items to the investigating officer of this case, Insp Nurul Ainie Binti Mohd Arifin (SP14), at the JSJN IPK Johor as recorded in the packages Handover Form (Exhibit P17) for further action. [8] Insp Nurul Ainie Binti Mohd Arifin (SP14) then had conducted investigation into the seized items by tracing the individuals who brought/sent these packages to DHL for delivery to the addresses listed on the packages, all of which are in Singapore. The investigation by SP14 found that Exhibits P4 to P11 were received from customers who visited the DHL Service Points with Waybill Numbers at the following branches: a) Bukit Indah - SP15 P4 1099918971 b) Taman Sutera - SP16 P5 2137178374, SP17 P6 2137204263 c) Taman Molek - SP17 P7 5543221670, SP15 P8A(1) 2137194301, SP15 P9A(1) 2137164584, SP15 P10A(1) 2137174071, SP15 P11A(1) 2137183926 [9] Subsequently, the seized items were sent to the Chemistry Department for analysis, and the Chemist Report 21-FR-J-02687 (Exhibit P21) dated 20.09.2020 confirmed that the seized items contained the following dangerous drugs: a) 691.57 grammes of Methamphetamine b) 218.01 grammes of Ketamine c) 27.95 grammes of MDMA d) 730.99 grammes of Methamphetamine e) 1064.98 grammes of Methamphetamine [10] The employees who had received Exhibits P4 to P11 from customers at the DHL Service Points were called to testify, namely Nurul Nasirah Binti Md Nasir (SP15/DHL Branch Taman Molek), Chye Mei Fong (SP16/DHL Branch Bukit Indah), and Amas Azlina Binti Ahmad (SP17/DHL Branch Taman Sutera). All the packages in question were referred to SP15, SP16, and SP17. They were still able to identify the items they received based on the Waybill Number still affixed to the items, the receipts issued by their respective branches, and the security checked stickers containing their signatures that were still found on the items. (Exhibit P34.) [11] All of the dangerous drugs were seized from DHL Senai. Meanwhile, the intended delivery of the goods to the address in Singapore was made through 3 DHL branches, namely in Bukit Indah, Taman Sutera, and Taman Molek. BURDEN OF PROOF AT THE END OF PROSECUTION’S CASE [12] At the end of the prosecution’s case, it is the duty of the prosecution to prove a prima facie case against the Accused as provided by s. 180(1) Criminal Procedure Code (CPC). This principle is enshrined in the cases of PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457 and Balachandran v. PP [2005] 1 CLJ 85; [2005] 2 MLJ 301. [13] In doing so, the prosecution must prove the following ingredients related to all the Amended Charges under s. 39B(1)(a) DDA: a) The drugs are dangerous drugs as listed under the First Schedule of the DDA; b) The accused had possession and knowledge of the drugs; c) The accused at the time, date, and place mentioned in the charge committed the offence of trafficking the dangerous drugs. ANALYSIS AND THIS COURT FINDINGS AT THE END OF THE PROSECUTION’S CASE a) THE SEIZED ITEMS ARE DANGEROUS DRUGS AS LISTED IN THE FIRST SCHEDULE OF THE DANGEROUS DRUGS ACT (1952) [14] The seized items were sent to the Chemistry Department for analysis, and the Chemistry Report 21-FR-J-02687 (Exhibit P21) dated 20.09.2020 confirmed that the seized items contained the following dangerous drugs: a) 691.57 gram Methamphetamine b) 218.01 gram Ketamine c) 27.95 gram MDMA d) 730.99 gram Methamphetamine e) 1064.98 gram Methamphetamine [15] The testimony of SP1 as an expert witness in dangerous drug was accepted as credible evidence in the absence of any evidence in rebuttal. b) THE ACCUSED HAD POSSESSION AND KNOWLEDGE OF THE DRUGS [16] Considering that there are 5 Accused in this case, the analysis regarding the sending of seized items through the DHL service points would be discussed separately for each of the Accused. Meanwhile, the analysis regarding the receipt of the seized items by DHL Senai until they were handed over to SP3 would be discussed together. Analysis Of Sending Of Goods Through DHL Service Points The First Accused - CHENG SIM CHEN [17] Prosecution Witness SP16 Chye Mei Fong from DHL Bukit Indah testified that according to the invoice, the package was sent by one Raymond Cheng. S : Berdasarkan invoice ini, siapa yang menghantar? J : Raymond Cheng, Yang Arif. S : Berdasarkan P39 ini, bilakah Puan terima package? J : 15.05.2020, Yang Arif. S : Masa itu masih dalam tempoh Perintah Kawalan Pergerakan. Betul? J : Betul, Yang Arif. S : Ada tak apa-apa prosedur SOP di cawangan Taman Bukit Indah ini berkenaan dengan SOP Pandemik COVID? J : Perlu mematuhi SOP untuk Mysejahtera. Bila pelanggan masuk, pelanggan perlu mencatit tarikh, nama dan nombor telefon, dan memeriksa suhu badan. [18] Although it was the Standard Operating Procedure (SOP) for the usage MySejahtera at the material time, no MySejahtera record verification was tendered during the trial to confirm whether the sender was actually the First Accused. Although the name "Raymond Chen" was printed on the DHL box (exhibit P13(128)), which is alleged to be linked to the Accused, there isn’t any positive confirmation of his identity. [19] SP16 also testified that the package which was being sent was opened for inspection and she found no illegal substance inside it. This clearly shows that the package was opened for inspection by the DHL staff. SP16's testimony confirms that she did not find any illegal substance inside the box. [20] The prosecution also produced Jayabalan A/L Ponnusamy (SP12), the Grab driver who was instructed by the First Accused to deliver a package to the DHL Service Point at Bukit Indah. This witness could only identify the package that had been re-packed by DHL but could not identify the original package that he had brought at the Accused instruction. S : Encik tengok kelapan-lapan keping gambar ini. Encik boleh cam ke mana satu kotak yang Encik terima, kalau tengok kelapan-lapan gambar ini? J : Saya ingat pada gambar yang Pertama ini. Yang warna kuning. S : package yang…? J : package yang kuning DHL, selepas dipack. S : Sebelum dipack, ada tak gambar dia? J : Itu saya kurang jelas. [21] SP12's testified that the Accused declared the package contained "machinery parts" and SP12 admitted that he did not open the package nor detect any smell or suspicious item. Even though he stated that he was instructed by the First Accused to send the package to DHL, his oral testimony was not supported by any other corroborating evidence. [22] It is clear that the prosecution had failed to present any direct evidence that the First Accused sent, delivered, or was involved in any act of trafficking and/or possession of drugs at the place and on the date specified in the charges. SP12's testimony itself refers to a delivery alleged to have occurred at DHL Bukit Indah on May 11 or 12, 2020, and not at DHL Senai on May 14 or 15, 2020. The significant discrepancy in terms of the date and location constitutes a material contradiction that raises serious doubts as to whether the facts referred to by the prosecution witness is the same facts detailed in the charge. [23] Further, at the stage of delivering the package to DHL service point, no evidence was tendered regarding the presence of any illegal substance in the box/package sent to the service point allegedly at the request of the First Accused despite the parcel being inspected by the staff of DHL. The same goes to the charges of drug possession against the First Accused. The Second and Third Accused – CHIN KOH LUN and NG BOON KEAT The Second Accused – CHIN KOH LUN [24] The testimony of Nurul Nasirah Binti Md Nasir (SP15/DHL Branch Taman Molek) states that she inspected the package which was to be sent and after the inspection, she affixed a security sticker on the DHL box. S : You panggil apa itu? J : Security Checked. That’s mean kami dah check barang itu. Dan after dah tampal security checked itu, saya atau receiver tak boleh open lah.” [25] SP15 has confirmed that the "security checked sticker" was affixed by her on Exhibits P7 to P11 after the package was inspected by her together with the customer named "Ng Boon Keat," where SP15 also issued receipts for the five (5) packages received as per Exhibit P38(1-5). This means that at the time of SP15's inspection SP15 did not find any illegal or suspicious substance before the box was sealed with the security sticker. [26] Cheong Tin Choy (SP13/Manager of DHL Branch Taman Molek) was called to testify about the (19) copies of DHL Branch Taman Molek receipts, namely Exhibit P28(1-8)and P29(1-11), sent by one "Chin Koh Lun" to an address in Singapore between April 23, 2020, and May 14, 2020, with the contents being "Wood Sample." The receipts of Exhibit P28(1-8) and P29(1-11) were seized at the Third Accused house and motorcycle parked within the premises. [27] The Prosecution argued that Exhibits P28 and P29 seized from the Second Accused relates similar facts that can be accepted by the Court under Sections 11, 14, and 15 of the Evidence Act 1950, given that they bear strikingly similar characteristics to Exhibit P38, which is the receipt for Exhibits P7 to P11 received by SP15. [28] However, there is no evidence before the Court that the previous deliveries contained any illegal drugs. [29] Similar to the First Accused, at the stage of delivery of packages at DHL service point, no evidence was tendered regarding the presence of illegal substance in the boxes/packages sent to the service point. [30] On the contrary, the element of possession was also not proven with the existing facts rendering that the Accused Chin Koh Lun had no control and custody over the drugs that are the subject of the charge. The Third Accused – NG BOON KEAT [31] The Third Accused was arrested together with his friend named Chan Wei Liang (who has been since released) while his car was parked on 16.05.2020, at around 3 pm. When he was arrested, no illegal substance were found on him and he did not attempt to escape. [32] In this case, there were two individuals named "NG BOON KEAT" who were arrested by the police. The first arrest was on 16.05.2020 at 12:30 am and the second arrest was at 3 pm on the same day. Both arrests were made because the name "NG BOON KEAT" was written on the courier package. [33] Although the names of the two individuals were the same, the identity card numbers of both individuals are different. The fact that a wrongful arrest occurred indicates that the police did not have the actual identity details of “NG BOON KEAT" other than the name on the courier package. This raises a reasonable inference that the police failed to identify the actual "NG BOON KEAT" related to this case. [34] SP13 and SP15, who were employees at DHL Taman Molek at the time of the incident, were never asked to conduct an identification parade at the police station to confirm the identity of the real “NG BOON KEAT”. SP13 was also never asked to identify the Third Accused in Court, while SP15 had clearly stated that he could not identify the Third Accused when asked to do so. [35] The fact that the identity of the Third Accused becomes doubtful is once again shown in the cross-examination of SP14 (investigating officer) as follows, where it was revealed that no identification parade was conducted and the arrest of the other "NG BOON KEAT" was made prior the arrest of the Third Accused: S: Setuju dengan saya, tangkapan ini tidak dijalankan kawad cam? J: Betul. S: Put: Tiada no kad pengenalan bagi OKT 3 dicatitkan dalam nama client? J: Betul. S: Yang ditulis hanya Ng Boon Keat? J: Betul. S: Put: Setuju nama Ng Boon Keat adalah satu nama yang biasa? J: Betul. S: Adakah Insp. tahu bahawa pada hari yang sama iaitu 16/5/2020 terdapat satu lagi tangkapan ke atas penama Ng Boon Keat? J: Ya saya tahu. [36] Furthermore, the signatures of the Third Accused on the package and the caution statement (D35) were different, and no explanation was given regarding this: S: Rujuk rakaman percakapan OKT 3 mukasurat 1 sahaja. Ini adalah rakaman percakapan OKT3 – Ng Boon Keat dan B16? J: Betul. S: Cross refer dengan P34 (7), (9), (11), (13), (15), tandatangan di dalam P34 sangat berlain dengan tandatangan OKT 3 di rakaman percakapannya? J: Betul. [37] The prosecution also failed to call the other individual named “NG BOON KEAT”, who was arrested to exclude that individual as the person named on the courier package. There are two NG BOON KEAT in this case, and there are no witnesses to confirm that the Third Accused is the actual NG BOON KEAT listed on the courier package. [38] DHL Taman Molek employee also could not identify the package nor the Third Accused: S: Tadi puan kata dalam satu hari mungkin ada banyak parsel dan mungkin ada sikit parsel? J: Betul. S: Jadi sebenarnya Puan tak boleh ingat dan pastikan nama-nama customer? J: Betul. S: Tadi Puan telah dirujuk gambar P34, Puan sebenarnya tak boleh camkan dan sahkan nama Ng Boon Keat? J: Betul. [39] SP10 (the driver who delivered the courier package from DHL Taman Molek to DHL Senai) stated that he could not identify the package when asked during the main examination: S: Kalau saya minta En camkan parsel yang dipungut pada 15.05.2020, boleh cam? J: Tak pasti sebab semua kotak sama. S: Kalau saya tunjuk dapat cam atau tak dapat cam? J: Kalau kotak memang cam. S: Boleh camkan lihat pada barang di atas meja, boleh camkan? J: Tak cam. S: Adakah ini barang-barang yang dipungut? J: Tak cam. S: Kenapa tak dapat cam? J: Sebab kotak sama. [40] No one could testify as to the movement of the courier package until the time it was placed on the DHL Senai conveyor belt. Also, there are no witnesses who could say with certainty that the courier packages on the conveyor belt are the same courier packages and it has not been tampered with by any third party. Moreover, at the material time, there were two workers who were working as X-ray operators at DHL Senai and 8 other workers who had access to the package. The Fourth and Fifth Accused - TEE YU HENG dan LIM QI YAN The Fourth Accused - TEE YU HENG [41] Amas Azlina Binti Ahmad (SP17/DHL Branch Taman Sutera) testified that while she was on duty at DHL Taman Sutera on 15.05.2020, she received two (2) packages from an individual named “Tee Yu Heng (No. ID: 020506-08-0959)" and issued receipts (Exhibit P41), Airway Bill (Exhibit P42), Customer Detail Form (Exhibit P43), and Commercial Invoice (Exhibit P44). [42] At the time of the arrest, the Fourth Accused was not present together with the seized items at DHL Senai, therefore there is no element of possession over the seized items. According to SP8, the Fourth Accused willingly came to the police station when was required to do so. [43] SP17 testified that during the delivery of goods at DHL Taman Sutera, the items to be delivered was checked and no illegal substance was found. Then the box was wrapped and the waybill was affixed to it. [44] In exhibits P41A and B, the sender's name was not even stated. The MySejahtera record to identify the sender was also not submitted. All of this raises questions about the identity of the person who sent the items, whether they were sent by the Fourth Accused or not. [45] SP17 also identified P41(a) and (b), namely waybill No. 2137178374 and 2137204263. The bottom right corner of this document reads 'Tee Yu Heng' ID No.020506-00-0959, which was the delivery SOP for goods. Accordingly this indicates the sender who had come with his identification card. [46] According to SP17, if the person sending the goods uses someone else's identification card or if the identification card is different, she would require verification. If the sender doesn’t use their own identification card, she will accept the item, but if any issues arises, the person whose name is on the package must take responsibility. [47] She would also not take note if someone sends items using another person's identification card. She identified P5 and P6 based on the security check on the Fourth Accused. Her testimony is based on DHL’s SOP and not of what had taken place in respect of the package linked to the Fourth Accused. [48] Based on such testimony, I conclude that the prosecution has failed to prove the true identity of the sender and the fact that the Fourth Accused had sent the package. The Fifth Accused - LIM QI YAN [49] The prosecution has failed to present any evidence, whether direct or circumstantial, regarding the joint intention of the Fifth and Fourth Accused in accordance with section 34 of the Penal Code. Moreover, no evidence was presented to show whether the Fifth and Fourth Accused knew each other or had any dealings that would suggest a common intention. [50] The prosecution also failed to present any evidence in the form of fingerprint or DNA analysis linking the Fifth Accused to the package, considering that no incriminating items were seized from the Fifth Accused. [51] None of the prosecution witnesses have linked the Fifth Accused to the seized drug. In fact, the investigating officer SP8 stated that the Fifth Accused was arrested for a different case. [52] The investigation conducted by SP14, Insp Nurul Ainie Binti Ariffin, also showed that the Accused had no custody or control over the drugs. The testimony of SP14 is as follows: S: Oleh itu Puan, berdasarkan keterangan Puan tentang bagaimana rampasan dibuat dan tempat di mana rampasan ini dibuat, Puan boleh setuju dengan saya pada tarikh, masa dan tempat pertuduhan ini dikenakan ke atas kesemua tertuduh di dalam Mahkamah ini pada 15.05.2020 JAM 8.20 malam di DHL Express Senai, kesemua tertuduh ini pada waktu dan tempat tersebut tidak ada apa-apa jagaan dan kawalan tentang barang kes dadah ini. Betul? J: Pada waktu…? S: Pada waktu rampasan. J: Betul. [53] The gist of establishing a case of drug trafficking against an accused is the proof of possession. It is my considered view that to prove possession, the prosecution must prove to this court the presence of both the physical and mental elements against the accused. [54] In the locus classicus case of Chan Pean Leon v. Public Prosecutor [1956] 1 MLRH 44 Thomson J had stated this: “Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th edn, p 304): A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me…” Analysis Of the Seized Items Upon Arrival at DHL Senai [55] After picking up the goods from the DHL service points, the DHL driver handed them over to the staff at DHL Senai. [56] Meanwhile, at DHL Senai, according to SP18, there were 8 workers who handled package processing. He himself does not know what the 8 workers did with the packages, and no CCTV footage was presented in testimony. None of the workers testified during trial. [57] According to the raiding officer, Insp Than Jia Jun (SP3), on 15.5.2020 at 8:20 pm, he, along with the raiding team from the Johor IPK Narcotics Criminal Investigation Department, went to DHL Senai where the company's Operations Manager, Mr. Hiew Chee Yung (SP18), handed over to him three (3) boxes and five (5) plastic packages suspected to contain dangerous drugs, which were then taken back to the JSJN Johor office for further action. S: Setuju dengan saya, ketika rampasan ini dibuat kesemua tertuduh di dalam Mahkamah ini yang telah dicamkan oleh Inspektor tidak berada di tempat tersebut? Betul kan? J: Setuju. S: Setuju dengan saya apabila Pengurus Operasi DHL tersebut menyerahkan kesemua kotak dan juga bungkusan plastik ini, Inspektor telah mengambil alih kawalan dan jagaan kesemuanya daripada pihak DHL. Betul? J: Betul. S: You took over control and custody of all the boxes and packaging. Betul? J: Betul. S: Maknanya di sini juga, sebelum barang-barang ini diserahkan kepada Inspektor, ianya adalah di bawah kawalan dan jagaan Mr. Hiew Chee Yong tersebut. Betul? J: Betul. ....... [58] At all material times, all the Accused and any other persons had no authority to enter or had access to the place where the drugs were seized, namely at DHL Senai. This matter was confirmed by SP18, Hiew Chee Yung, who was the Operations Manager at DHL Senai during cross-examination: S: Saya nak tanya Mr. Hiew. Selain daripada pekerja-pekerja DHL Senai, termasuk Mr. Hiew sendiri dan juga 8 orang ini, pihak luar/orang luar adakah mereka boleh masuk dan berurusan dengan package-package ini? Tidak boleh kan? J: Tidak boleh. S: Jadi hanya pihak DHL Senai, Mr. Hiew sendiri dan 8 orang pekerja ini mempunyai kuasa eksklusif dengan barangbarang ini semua. Betul? Orang luar tak boleh. J: Betul. [59] SP5 is the X-ray technician who stored the packages in the high value cage before handing them over to SP18. He said that besides him, the team leader, supervisor, and manager also had access to this high value cage. During the cross-examination, SP5 agreed that he would not know whether anyone else had access to the high-value cage or not when he took his break at 5 pm. [60] Furthermore, there are no records of the handover of the seized items by SP18 to SP3 before they were taken back to IPK. During cross-examination, SP3 provided the following testimony: S: Put: kita tak dapat pengesahan apa barang yang dirampas dari En Hiew sebab tiada tandatangan dari En Hiew? J: Betul. [61] Moreover, the prosecution failed to present any documentation or complete handover records to prove the transfer of the packages from the DHL van driver to the conveyor belt until they reached SP3 (Insp. Than Jia Jun). Neither those who were involved in the process testified in court. [62] This is further compounded by the confusion regarding the number of boxes opened by SP3 at DHL Senai, the Police Station, and also at the IPK. [63] This contradiction is material and raises the question of how the five (5) plastic packages seized at DHL Senai have later turned out into one (1) box and four (4) plastic packages. [64] No explanation was given by SP3 and SP14 regarding this contradiction. Moreover, SP3 further testified of the existence of the five (5) plastic packages he seized when cross-examined as follows: S: Boleh tak Inspektor sahkan sequence cerita kita ini dalam Perenggan 4 bahawa selepas ketiga-tiga bungkusan kotak itu dibuka dan diperiksa setiap satunya, Mr. Hiew telah menyerahkan lagi 5 bungkusan plastik kepada Inspektor tetapi Inspektor tak periksa di sana dan bawa balik ke balai. Betul cerita ini? J: Betul [65] The prosecution, through its witnesses, had failed to provide explanations and close the gaps that have arisen. This failure is fatal to the prosecution's case. At the same time, the investigating officer (SP14) provided another conflicting version which added further confusion to the chain of custody when she testified as follows during the cross-examination of SP14 (By the Defendant's Counsel Tee Yu Heng): S: Adakah Inspektor mempunyai pengetahuan berapa kotak yang ada di DHL apabila Inspektor Than datang? Berapa kotak kesemuanya? J: Ada 8. S: Berapa kotak yang telah dibuka di sana dan berapa kotak yang dibawa balik ke IPK? J: Lapan-lapan. S: Kesemuanya 8? J: 8. [66] According to SP14, no plastic packages were seized by SP3 except for a total of eight (8) boxes. No explanation for these discrepancies were given. [67] From the evidence presented, several important aspects of this case were never investigated nor presented in Court, and this has denied the Accused their right to a fair trial. The failures are as follows:- a) CCTV footage at the DHL branch to identify the true identity of the package sender, how the packages were handled, and the movement of the packages; b) Mysejahtera records; c) CCTV footage from DHL Senai to identify the movement of the packages from the moment it was received at DHL Senai until it was handed over to SP3; d) The investigation of the intended recipient of the goods in Singapore which could have been easily conducted with the cooperation of the Singaporean authorities, who have had a very good working relationship with the Malaysian Police. [68] This was acknowledged by the SP14 herself: S: Ada Puan siasat tak penerima-penerima ini sama ada dia mengenali Chin Koh Lun ini dan adakah mereka pernah berhubung berkenaan dengan barang barang yang dihantar ini? J: Tiada. S: Puan boleh setuju dengan saya? Dalam kes pengedaran dadah di bawah tajuk menghantar ini, siasatan terhadap penerima ini adalah penting untuk tujuan siasatan dan juga pendakwaan di Mahkamah. Betul? J: Betul. ………. S: Jadi bolehlah kalau begitu saya cadangkan bahawa dari segi siasatan Puan keseluruhannya untuk kes terhadap anak guam saya ini, terdapat ketinggalan-ketinggalan yang penting yang menjadikan siasatan Puan tidak lengkap sepenuhnya. Betul? J: Betul. ………… S: Jadi boleh Puan sahkan dalam Mahkamah pada hari ini, rakaman CCTV tersebut di Service Point Taman Molek ini penting bukan, untuk siasatan dan juga perbicaraan kita? J: Betul. …….. [69] Thorough investigation before prosecution of a case is crucial. The Court of Appeal in Mohd Helmi Akmal Bin Mohd Ali v. PP [2017] MLJU 393 had said the following: “Dalam hubungan ini, barangkali suai manfaat jika kami perturunkan beberapa petikan keputusan Mahkamah Agung India yang menekankan bahawa siasatan hendaklah dijalankan dengan adil dan saksama. Siasatan bukan sahaja tertumpu kepada pengumpulan keterangan yang boleh menunjukkan bahawa tertuduh telah melakukan kesalahan tetapi meliputi juga pengumpulan keterangan yang boleh menentukan tertuduh tidak melakukan kesalahan yang menjadi hal perkara yang disiasat.” [70] The Federal Court in Zaifull Bin Muhammad & Anor v PP [2013] 2 CLJ 383 had this to say on discrepancies in evidence: “(2) It was incumbent on the prosecution to offer some explanation for the discrepancies. With the discrepancies left unexplained, it created a reasonable doubt as to the identity of the drug exhibit. In the circumstances, the defence should not have been called at the close of the prosecution case. As such, it would not be safe to uphold the appellants’ convictions…” [71] All these failures have in themselves raised serious doubts about the identity of the courier packages, particularly whether the packages received at the DHL service point is the same packages/boxes that were ultimately presented in Court. [72] Therefore, the prosecution's argument that DHL Senai only had intermediary possession of the packages in question before they were delivered to the recipient, and that the Accused had actual custody and control over P4 to P11, is flawed and unconvincing. [73] The prosecution's argument that the chain of evidence throughout the trial is unbroken from the date of seizure until the packages were presented in court, is not supported by the evidence presented in court. [74] Put simply, I find there was a serious break in the chain of evidence led by the prosecution. The consequence is grave. In the Supreme Court case of [1987] 1 MLJ 220, Abdul Hamid CJ (later LP) held as follows: “Insofar as the trial Court is concerned, its duty is essentially to decide whether on the evidence before it the prosecution has proved its case, and if there are unsatisfactory features in the prosecution case to determine whether, in the light of such features, the prosecution case fell short of proof beyond reasonable doubt (Abdullah Zawawi 's case, supra ). We would observe at this point that the law is clear in that "it is unnecessary to call evidence to ensure there is no break in the chain of evidence." (Su Ah Ping v. Public Prosecutor [1979] 1 LNS 100; [1980] 1 MLJ 75. But where a doubt as to the identity of an exhibit arises, a failure to adduce evidence to provide the necessary link in the chain of evidence would be fatal to the prosecution case. In the instant case there was such a failure.” [75] The prosecution has requested a joint trial for all 5 Accused. This joint trial is based on the seizure of drugs from 3 boxes and 5 packages at DHL Express Sdn Bhd, Senai, Johor, on 15.05.2020. However, there is no direct or indirect evidence linking or associating each of the Accused with one another, nor with the drugs seized at DHL Senai. There is also no oral or documentary evidence showing conspiracy or common intention, as required under Section 163 of the Criminal Procedure Code. There is also no evidence tendered that all the Accused knew each other. Presumption under s.37(d) [76] Siti Norma Yaakob FCJ had in PP v Tan Tatt Eek & Other Appeals [2005] 2 MLJ 685 observed the following: “In essence, the presumption under s 37(d) works as follows. Once it is proved that a person has control and custody of a dangerous drug, he is deemed not only to be in possession of the drug but is also deemed to have knowledge of the nature of the drug until the contrary is proved. As such, without the evidence of custody or control, the rebuttable presumption of possession and knowledge cannot arise.” [77] Based on the above provisions and decided cases, to activate the presumption under section 37(d), the prosecution must first prove that all the Accused had custody and control over "anything whatsoever containing any dangerous drug," specifically the eight (8) packages/boxes seized from DHL Senai. [78] In Roslan Hanapi v. PP [2015] 6 CLJ 464 the Court of Appeal had ruled as follows:- “[22] But for the presumption under s.37(d) to apply, the prosecution must first establish custody or control of "anything whatsoever containing any dangerous drug", in this case the bag containing the 320 bottles of heroin. It is only when either custody or control had been established that the appellant would be presumed to have had knowledge of the drug. To be in custody of a thing is to have physical care of the thing whilst to be in control is to have charge or dominion over the thing. Short of an express admission, proof of having charge or dominion is a matter of inference from the surrounding circumstances. [23] On the evidence we found that neither custody nor control had been established against the appellant. Mere proximity to the bag containing the drug cannot by any stretch of the imagination be equated with custody or control. It must further be shown that the appellant either had physical care of the bag or had charge or dominion over the bag. The presumption under s. 37(d) of the DDA therefore had no application against the appellant.” [79] In Muhammed Hassan v Pendakwa Raya [1998] 2 MLJ 273, the Federal Court decided that to raise the presumption of possession and knowledge under Section 37(d), the court must first find that the accused had something in their custody or under their control that contained drugs; and Conversely, to raise the presumption of distribution under Section 37(da), a finding that the accused was in possession of drugs is required. “(3)To come to the presumptions of possession and knowledge under s 37(d) of the Act, one need only to arrive at a finding of having had ‘in custody or under control anything whatsoever containing’ the drug whereas to arrive at the presumption of ‘trafficking’ under s 37(da), a finding of being ‘in possession’ of the drug is necessary.” [80] Based on the testimony before this court, it is clear that the prosecution has failed to prove the crucial element of possession, whether direct possession or presumed possession by the Accused, thus the element of trafficking has also failed to be proven. The Charge Pursuant To Section 34 of The Penal Code (Common Intention) [81] The principles regarding common intention was explained by the Federal Court in the case Farose Tamure Mohamad Khan v. PP & Other Appeals [2016] 6 MLRA 337: “[47] It is helpful to analyse s 34 in terms of these elements:

a criminal act;

(ii) participation in doing of the act;

(iii) a common intention between the parties; and

(iv) the act must be done in furtherance of the common intention. … [49] It is widely acknowledged that s 34 is a rule of evidence which embodies the common sense principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually (Krishna Rao Gurumurthi v. PP & Another Appeal [2009] 1 MLRA 23; [2009] 3 MLJ 643; [2009] 2 CLJ 603). … [52] Presence is not necessary to constitute participation in every case. It is sufficient for the accused to have done an act with some nexus to the offence (Sabarudin Non v. PP & Other Appeals [2004] 2 MLRA 441; [2005] 4 MLJ 37; [2005] 1 CLJ 466; [2005] 1 AMR 4 and Manikumar Sinnapan & Ors v. PP [2016] 2 MLRA 1). [53] Common intention, distinguished from the same or similar intention, requires proof that the criminal act was done in pursuance of a pre-arranged plan (Mahbub Shah (supra)). Such pre-planning may develop on the spot or in the course of commission of an offence, the crucial test being the plan must precede the commission of the offence (Namasiyiam Doraisamy v. PP & Other Cases [1987] 1 MLRA 73; [1987] 2 MLJ 336; [1987] CLJ Rep 241). [54] A common intention may be often be difficult to prove by way of direct evidence in practice, but it can be inferred from the circumstances of the case and the conduct of the accused (Dato' Mokhtar Hashim & Anor v. PP [1983] 1 MLRA 7; [1983] 2 MLJ 232; [1983] CLJ Rep 101). [82] Additionally, in the case of King Seng Hock And Anor v. PP [2013] 1 MLRA 364 The Court of Appeal decided: [88] … To constitute common intention it is necessary that the intention of each of them is known to the rest of them and shared by them (Tillu Ahir and Others v. Rex AIR (36) [1949] Allahabad 89). However, the common intention can be determined by looking at the known facts and circumstances which existed before the commencement of the criminal act bearing in mind the criminal act is committed in furtherance of that common intention (Nazir and Others v. Emperor [1948] 49 Cr LJ 271: and Rishideo Pande v. State of Uttar Pradesh [1955] Cr LJ 873). [83] Meanwhile, in the case of Seyedmohsen Namazivaj Seyedreza v. PP & Other Appeals [2024] MLRAU 15 The Court of Appeal decided: “Common intention is a question of fact. The proof of common intention is the matter of inference from the circumstances. It is derived from the conduct of the three accused. This inference of their involvement in the manufacturing of methamphetamine in the said factory can be gathered when the three accused were seen together before the premises were raided. They were not there by accident or coincidence. The three accused were arrested at the premise. There was more than credible evidence that can be inferred that the three accused acted in concert or were participant in the manufacturing setting of methamphetamine in the said factory. All these acts when combined together proved the nexus between the three accused persons and the dangerous drugs exhibits seized. With the noticeable odour of chemicals and the running of the fans firmly establishes not only knowledge but also a common intention of the three accused to manufacture the drugs. [84] During the course of trial no evidence and/or proof was presented, either directly or by inference, that showed a common intention between the Second Accused and the Third Accused as well as the Fourth and Fifth Accused in accordance with section 34 of the Penal Code. e) THE ACCUSED AT THE TIME, DATE AND PLACE STATED IN THE CHARGE HAD COMMITED AN OFFENCE OF TRAFFICKING DANGEROUS DRUGS [85] In the absence of proof beyond reasonable doubt that the Accused had possession, namely, the control and custody of the dangerous drugs, the question of whether the Accused committed the offence of trafficking the dangerous drugs does not arise. Therefore, the Prosecution has failed to prove this crucial ingredient. FINDING OF THIS COURT [86] Section 180(1) of the Criminal Procedure Code (CPC) states that the standard of proof for the prosecution at the end of the prosecution case is to proof a prima facie case beyond reasonable doubt. When the prosecution case is concluded, the Court shall consider whether the prosecution has established a prima facie case against the Accused. If the Court finds that the prosecution has not proven a prima facie case against the Accused, the Court shall record an order of discharge and acquittal. If the Court finds that a prima facie case has been made against the Accused for the alleged offence, the Court shall call the Accused to defend themselves. [87] It is a well-established legal principle that the Court must conduct a maximum evaluation of the evidence presented by the prosecution at the trial stage when deciding whether to call the Accused to enter his defence. PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, Ooi Kow Chai & Anor v. PP [2003] 1 CLJ 734 [88] In this case, it is clear that the prosecution relies entirely on inferential evidence to prove the possession of drugs by the Accused. Regarding this issue, the recommendation of the Supreme Court in the case of Choo Chang Teik v. PP[1991] 3 CLJ 2387; [1991] 1 CLJ (Rep) 54 needs to be taken into consideration where the Supreme Court stated the following on page 2391 (page 59): “... we feel that in offences involving capital punishment such as trafficking in drugs, evidence by inference alone is not sufficient to support a conviction of the appellant without some proof of the element of control.” [89] In Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1 Federal Court has this to say: “Before parting with the case, it is necessary to state that from the facts and circumstances of this appeal it would appear to us that the investigation had been somewhat shoddy. Undoubtedly, heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the life and personal liberty of a citizen is a precious one guaranteed by art 5 of the Federal Constitution and its deprivation shall be only in accordance with law. Thus, before accusing an innocent person of the commission of a grave crime like the one punishable under s 302 of the PC, an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Therefore, greater care and circumspection are needed by the investigating agency in this regard.” [90] From the analysis of the case facts, it is clear that there are many gaps and questions in the Prosecution's case that require answers. However, those answers were not provided through the Prosecution witnesses. Therefore, this Court finds that the Prosecution has failed to establish a prima facie case on maximum evaluation against the Accused based on the analysis of the facts that have been considered above. The Federal Court in the case of Sia Soon Suan v PP [1966] 1 MLJ 116 has summarised as follows: “Nevertheless, the requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether this court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else. This is axiomatic.” CONCLUSION AT THE END OF THE PROSECUTION’S CASE [91] Based on the maximum evaluation of the evidence presented by the prosecution, this Court finds that the prosecution has failed to establish a prima facie case against the Accused and therefore this Court acquit and discharge all the 5 Accused without being called to enter their defence. Dated 02-04-2026 - TT - Abdul Fareed bin Abdul Gafoor Judicial Commissioner High Court 3 (Criminal) Johor Bahru Prosecution : TPR Foo Fang Leong Counsels : First Accused: Veeranesh Babu A/L Kumaresan Second Accused: Muhammad Bin Abd. Kadir Khairulnadiah Hasni Binti Yusof Third Accused: Chuah Shyue Chien Gan Chee Cheng Kenji Soh Xin Da Fourth Accused: Dato’ Mandave Singh Gill Fifth Accused: Haji Abdul Hamid Menon Bin Abdullah