Daniel Ee (BA-45-35-04/2022)

The accused is charged with the following charges: The Charge (Case Number: BA-45A-55-03/2022) Bahawa kamu pada 27.1.2021 jam lebih kurang 6.30 pagi bertempat di No.19, Jalan Lorong Bunga Matahari 3B, Taman Maju Jaya, di dalam Daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan telah mengedar dadah jenis METHAMPHETAMINE berat bersih 136.64 gram. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama. Hukuman: Jika disabitkan dengan kesalahan hendaklah dijatuhkan hukuman mati atau penjara seumur hidup dan juga hendaklah disebat tidak kurang 15 sebatan jika tidak dihukum dengan hukuman mati. The Charge (Case Number: BA-45-28-03/2022) Bahawa kamu pada 27.1.2021 jam lebih kurang 6.30 pagi bertempat di No.19, Jalan Lorong Bunga Matahari 3B, Taman Maju Jaya, di dalam Daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah jenis 3,4-METHYLENEDIOXYMETHAMPHETAMINE (MDMA) berat bersih 2.04 gram. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 12(3) Akta yang sama. Hukuman: Jika disabitkan dengan kesalahan hendaklah di denda tidak lebih RM100,000 atau penjara tidak lebih 5 tahun atau kedua-duanya sekali. The Charge (Case Number: BA-45-29-03/2022) Bahawa kamu pada 27.1.2021 jam lebih kurang 6.30 pagi bertempat di No.19, Jalan Lorong Bunga Matahari 3B, Taman Maju Jaya, di dalam Daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah jenis METHAMPHETAMINE berat bersih 26.09 gram. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39A(1) Akta yang sama. Hukuman: Jika disabitkan dengan kesalahan hendaklah di penjara tidak kurang 2 tahun tetapi tidak lebih 5 tahun dan diwajibkan sebatan rotan antara 3 hingga 9 sebatan. The Charge (Case Number: BA-45-35-04/2022) Bahawa kamu pada 27.1.2021 jam lebih kurang 6.30 pagi bertempat di No.19, Jalan Lorong Bunga Matahari 3B, Taman Maju Jaya, di dalam Daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan telah didapati memiliki racun berjadual di dalam kawalan dan simpanan serta pengetahuan kamu tanpa sebarang permit atau kebenaran dari pihak berkuasa di bawah Akta Racun 1952, iaitu 15.93 gram jenis ETIZOLAM dan PHENAZEPAM yang disenaraikan di bawah Jadual Ketiga Akta Racun, dan dengan itu, kamu telah melakukan suatu kesalahan di bawah Seksyen 30(3) Akta Racun 1952 dan boleh dihukum di bawah Seksyen 30(5) Akta yang sama. Hukuman: Denda tidak melebihi RM10,000 atau penjara tidak melebihi 4 tahun atau kedua-duanya.

The accused claimed trial against all the charges when the court interpreter read all the charges to him in Mandarin.

The judgment of this court addresses the drugs found in two separate locations of the house - a. Outside the house - for the charge under section 39B DDA 1952, the drugs were found in the cushion in the veranda area of the house (for ease of reference, this Court referred to it as "the garage" as referred by the prosecution witnesses); b. For charges other than section 39B DDA 1952, PW3 found the drugs in the room on the first floor of the house when the accused pointed his finger at the box on the mattress.

The prosecution called 5 witnesses as follows: PW1 Joseph Ee (the Accused's father/Owner of the house) PW2 Chong Gan Hwa (the Accused's mother) PW3 ASP Mohd Nassrul Safre (Raiding Officer) PW4 Dr Saravana Kumar a/l Jayaram (Chemist) PW5 Insp Mohamad Khairie Ridhwan bin Azmi (Investigation Officer)

On 27.1.2021 at about 6.30 am, a Raiding Officer (PW3) headed a team of 7 police from Balai Polis Pandan Indah for a special task force to patrol the Pandan Indah area to prevent house-breaking cases.

Two team members approached the accused, standing in front of a house at No. 19, Jalan Lorong Bunga Matahari 3B, Taman Maju Jaya, Hulu Langat, Selangor—an intermediate two-storey terrace link house with only two bedrooms on the first floor of the house.

While the two team members approached the accused, the accused tried to escape towards the house. The two team members managed to apprehend the accused. Later, PW3 approached the accused, introduced himself as a police officer, and showed him his authority card.

The accused introduced himself as Daniel Ee. PW3 conducted a physical body search on the accused and found two handphones in the accused's pocket trousers.

PW3 searched the garage area and found and seized a few items suspected of house-breaking tools. Upon further search by PW3 around the area, he found a green and white striped cushion with a plastic written as Cotton Comfortable Natural containing 4 packets of transparent plastics. The Chemist (SP5) identified the drugs found in the garage as containing 136.64 grams of methamphetamine, which relates to the charge under section 39B DDA 1952.

PW3 handcuffed both the accused's hands at the back. PW3 did not administer any caution under section 37B DDA 1952. PW3 then asked the accused if he kept any incriminating items, and the accused replied, "ada simpan barang di tingkat atas rumah". The accused led PW3 and the police team to his room at the upper level of the house and, with both hands handcuffed at the back, pointed with his finger to a bag that contained 14 phones believed to be from house-breaking activities he had carried out.

The accused also pointed to an Oppo handphone box on the mattress in the same room. PW3 examined the box and found as follows: a) 1 packet of transparent plastic contained crystal chunks suspected as Syabu with an estimated weight of 42.5 grammes; b) 8 pieces of red/silver aluminium foils carried 80 pills suspected as Erimin 5 with an estimated weight of 23 grammes; 6 c) 1 packet of transparent plastic consisted of 17 red pills suspected as Yaba with an estimated weight of 1.9 grammes; d) 1 packet of transparent plastic contained 8 blue pills suspected as Ecstasy with an estimated weight of 3.1 grammes; e) 1 packet of transparent plastic carried a pink pill suspected as Ecstasy with an estimated weight of 0.7 grammes; f) 1 packet of transparent plastic consisted of 7 grey pills suspected as Ecstasy with an estimated weight of 3.5 grammes.

PW3 seized all the items, brought the accused to the Narcotics Office, IPD Ampang Jaya, and handed them to the Investigation Officer PW5 as evidenced by Borang Serah-Menyerah Barang kes. The items were in his custody throughout and were also in good condition.

Section 180(1) of the Criminal Procedure Court provides the court's duty at the end of the prosecution case to decide if the prosecution succeeded in proving a prima facie case.

The cases of PP v Dato' Seri Anwar Ibrahim (No.3) [1999] 2 CLJ 215; [1999] 2 AMR 2017; [1999] 2 MLJ 1, Balachandran v PP [2005] 1 CLJ 85 and PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457; [2005] 6 AMR 203 respectively laid down clear principles of law that at the end of the prosecution case, the evidence must be subject to a maximum 7 evaluation for the court to determine whether the prosecution succeeded to establish a prima facie case.

For the prosecution to establish a prima facie case, the prosecution must prove the following ingredients of the offence:

That the drugs are dangerous drugs within the meaning of DDA 1952 and the Poisons Act 1952.

(ii) The accused was in possession of the drugs;

(iii) The accused was trafficking in the said drugs. Identity of the drugs [16] PW5 confirmed that the drugs analysed by him were the prescribed drugs under the DDA 1952 and the Poison Act 1952. Possession of the drugs [17] The prosecution argued that the accused was in possession of the drugs based on the following narratives-For The Charge Under Case No. BA-45A-55-3/2022 [18] The prosecution maintained his argument that the accused had custody and control – possession and knowledge of the prescribed drugs in light of the close proximity of the drugs by the accused. [19] PW3 searched the garage area and found tools suspected of being used for housebreaking. A further search by PW3 at the garage area found a green and white-stripes cushion which contained a wallet marked as P14 and four packets of drugs marked as exhibit P15 (A-D). The accused's identity card P14A, and his driving license P14B, were inside P14. [20] PW3 then handcuffed the accused with both hands at the back after finding the drugs. [21] The accused's father (PW1) gave evidence that at the time of the incident, he occupied the house with his wife, PW2, the accused and the accused's brother. The accused is married, and his wife rarely comes home to his house. If she returned to the house, she would sleep on the couch on the ground floor. [22] The prosecution referred PW1 to the crime scene pictures P11(4). He testified that the things in the garage area belonged to the accused and were kept there to be sold as second-hand items. Among the things were foldable mattresses, clothes and other items. [23] PW1 could not recall the last time he entered the area because it was full of the accused's belongings. The prosecution argued that the accused had full access to the garage area where PW3 found the drugs in the cushion. Furthermore, the prosecution also argued that the evidence given by PW2 further strengthened the argument that the accused had full access to the garage area, as PW2 saw at the material time before PW3 arrested the accused that the accused was sleeping on the floor in the garage area. [24] Thus, the prosecution contends that there was direct knowledge of the accused on the drugs found in the cushion, as PW3 found the accused personal belongings in the cushion. The prosecution referred to the Court of Appeal decision in Hooman Khanloo V Public Prosecutor [2015] 5 MLJ 199 to support his contention. See also PP v Parlan Dadeh [2009] 1 CLJ 717 and PP v Mohd Farid Mohd Sukis & Anor (2002) 3 MLJ 40. [25] The prosecution invoked the presumption under section 37(da) DDA 1952 to establish trafficking. For The Charge under cases no BA-45-28-3/2022, BA-45-29-3/2022 & BA-45-35-4/2022 [26] PW3 gave the evidence that after the drugs were found in the cushion, the accused was handcuffed and asked whether he kept any incriminating things, to which the accused led PW3 and the police team to his room on the upper level of the house. In that room, the accused showed PW3 a bag that contained 14 mobile phones. [27] The accused, while both his hands were handcuffed at the back, pointed to a mobile phone box (P16) with his finger. PW3 examined P16 and found 1 packet of plastic with drugs P17A, 8 pieces of aluminium foils with pills P18 (A – H), 1 packet of plastic with drugs P19A and 3 packets of plastics with drugs P20 (A-C) and a weighing machine P21. [28] There was no one in the room during the search. The room was only occupied by the accused, as per PW1. Even though the accused was married with three kids, the accused's wife rarely returned to the house. She would stay at her parents' house. Even if she came to PW1's house, she would stay on the ground floor with her kids most of the time. [29] In fact, on the night in question, PW1 stated that the accused's wife was sleeping on the couch in the living hall. This evidence supports PW3's evidence that he saw someone sleeping on the couch in the living hall when the raid happened. [30] The investigation by PW5 on the room's access shows that only the accused has full access. Based on PW5's investigation of the accused's wife, she lives separately at her parents' house in Pandan Mewah. She seldom brings their kids to stay at PW1's house, and even if they did, she would sleep with her kids in the living hall. [31] The investigation of PW5 aligned with evidence of PW1. This proves that the only person with full access to the room is the accused. [32] On the part of the knowledge of the drugs and poisons found in the accused's bedroom, the prosecution submitted that the accused pointed a finger to the mobile phone box where it contained those illegal items. [33] The prosecution relied on section 8 of the Evidence Act 1950. The accused's act of pointing his finger to the box containing the drugs amounts to conduct, which shows that he knew of the drugs and poisons in the mobile phone box. The prosecution refers to the Federal Court case of Amathevelli A/P P Ramasamy v PP [2009] 2 MLJ 367. See also Khairuddin Bin Hassan V PP (2010) 7 CLJ 129. [34] The prosecution argued that section 37B DDA 1952 is irrelevant and inapplicable based on the facts of the case. [35] The prosecution invoked the presumption of knowledge under section 37(da) DDA 1952. THE DEFENCE CONTENTIONS [36] The crux of the defence arguments are as follows: a) The prosecution has failed to prove that the accused has control or custody of the drugs found in both locations because of failing to exclude access by third parties to the drugs. Therefore, the prosecution was unable to prove possession; b) The prosecution has failed to prove actual or direct knowledge of the drugs found in both locations by failing to adduce credible evidence as to the conduct of the accused person; c) The prosecution has failed to prove the pre-requisite conditions to rely on the act of leading to discovery by the accused person; d) The prosecution has failed to close the gap in the narrative of the prosecution's case because of material contradictions in evidence by the prosecution's witnesses; e) The prosecution has failed to prove that the chain of custody of the incriminating exhibits, i.e. the drugs, was intact from the time it was discovered to the time it was handed over to the investigation officer; and f) The prosecution has failed to prove that the accused person was trafficking in the said drugs due to the failure to establish control or custody, knowledge and, therefore, possession. Without the requisite element of possession, the accused person cannot be said to be able to traffic the drugs. ANALYSIS AND FINDINGS OF THE COURT Maximum evaluation of the prosecution's case [37] At the close of the prosecution's case, this court must subject the evidence of the prosecution to maximum evaluation, which includes examining the credibility of the prosecution's witnesses. If more than one inference arises due to the evaluation, the one favourable to the accused must be preferred. [38] For the prosecution to succeed at this stage, the prosecution must prove the ingredients of the offence that the Acts prescribed the drugs as dangerous drugs; the accused were in possession of the drugs. As to the trafficking charge, the accused was trafficking in the said drugs. [39] As regards the identity of the drugs, the court is satisfied that the defence did not dispute the identity of the drugs. The chemist's report (P27) confirmed that the substances seized by PW3 were dangerous drugs under Part III Schedule 1 DDA 1952 and Third Schedule of Poisons Act 1952. [40] The ingredient of possession is the most critical and vital to the charge under the DDA 1952 and the Poison Act 1952. The prosecution argued that possession, meaning custody, control or knowledge, is established through the evidence of actual possession. Possession – failure to prove that there was no access by third parties [41] It is incumbent upon the court to revisit the most celebrated case of Chan Pean Leon v PP [1956] MLJ 237 regarding possession, where Thompson J said: "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." [42] Hence, the prosecution needs to prove that the accused is so situated with the drugs that he has the power to deal with the drugs in question. [43] In the instant case, the prosecution relied heavily on the evidence of PW3. To begin with, it is worth mentioning that PW3 was not a narcotic officer and did not administer any caution to the accused when PW3 made admission to the drugs in the house. [44] Based on the narratives of the case, PW3 did not find the drugs on the accused. Instead, for the charge under section 39B DDA 1952, PW3 found the drug during his search in the garage area. [45] The prosecution argued that the accused had possession of the drugs in the garage because only the accused kept his items to be sold as second-hand items in the garage area. In other words, the accused had full access to the garage area. PW1 also showed that the garage area was messy and full of things belonging to PW1 and the accused. The area where PW3 found the cushion was marked as "D" by PW3. [46] The prosecution also asserted that the accused had close proximity to the drugs in the cushion, as PW2 saw him sleeping on the floor near the cushion. [47] However, this court finds that close proximity alone is insufficient. The Court of Appeal in Romi Amora Amir v PP [2011] 1 CLJ 870 held: "unless knowledge is proved, an item, however closed to a person, could just be miles away." [48] The defence negates the issue of possession by arguing that the garage area is an open area outside the house accessible to all the house's occupants (7 members). The defence argued that the prosecution failed to call the accused's brother and wife to exclude the probability of the drug being placed in the cushion by someone who also had access to the garage, and the accused had no knowledge of the drugs. The court noted that those witnesses were offered to the defence by the prosecution if the court called the accused to enter his defence. [49] The burden is on the prosecution to exclude access by other parties to the drugs, as emphasised by several landmark cases on this point. The burden is not on the defence to prove the possibility of access by others. Instead, it is the prosecution that excludes such a possibility. The court found that such an issue must be answered in favour of an accused if there is more than one inference that can be drawn from the evidence adduced by the prosecution. See the Supreme Court decision in Choo Yoke Choy v PP [1992] 1 CLJ Rep 43 and PP v Denish a/l Mahadevan [2009] 2 MLJ 194. [50] During the cross-examination, even the investigating officer, PW5, agreed with the defence counsel that the evidence of the accused's brother and sister is material to the prosecution's case. [51] Thus, failure by the prosecution to call the accused's brother and the accused wife is damaging to the prosecution's case as the prosecution has not proven that the accused had full access to the garage area. Conflicting evidence by the prosecution witnesses [52] The case became critical for the prosecution as there was conflicting evidence from the prosecution witnesses regarding the accused's wallet in order to prove knowledge by the accused. The prosecution argued that the accused had knowledge about the drugs as PW3 found the drugs together with the accused's personal belongings in the cushion, i.e. the accused's IC and driving license. The prosecution relied on the dissenting judgment of Ahmad Asnawi JCA in Hooman Khanloo v Public Prosecutor [2015] 5 MLJ 199 to support his argument that there was no necessity to invoke section 37(d) DDA 1952 if there was direct evidence of knowledge drawn against the accused. [53] On this, the court cannot agree with the prosecution's reliance on the dissenting judgment of the case in Hoomen Khanloo. Thus, the court dismissed the prosecution's reliance on the dissenting judgment. Credibility of the evidence given by PW3 [54] Coming back to the issue regarding the accused's wallet, during the cross-examination by the defence, PW1 and PW2, the accused parents gave consistent evidence that the accused's wallet was at the staircase of the house. [55] However, PW3 gave conflicting evidence when he said the accused's wallet was found in the cushion with the accused's belongings, i.e. IC and driving license. [56] Thus, the Court found two conflicting evidence regarding the accused's wallet. For that, the court is mindful of the police officer as the prosecution witness and the extent of reliability of his evidence. See Mohamed Ali v PP [1962] 1 LNS 129 and Syahrani Ishak v PP [2017] 1 LNS 503. [57] The evidence on the wallet is material to show knowledge. The contradictory evidence by PW1 and PW2 against PW3 created doubt as to whether the accused's wallet was indeed found in the cushion, as testified by PW3. Thus, the assertion by the prosecution that the accused knew about the drugs as his IC and driving license in the cushion, which was uncorroborated by other prosecution witnesses, has created doubt in the prosecution's case. The Court also noted that the conflicting evidence came from the prosecution's own witnesses. PW2 As Hostile Witness on the specific conflicting statement [58] The defence conceded with the conflicting statement made by PW2 regarding the accused's wife sleeping in the accused's room or on the couch in the ground floor area at the time the accused was arrested. Thus, the defence agreed that the court should consider only the inconsistent part, and PW2 is considered hostile regarding those statements. [59] This court found that the conflicting statement is immaterial to the case. Nonetheless, the contradictory statement proved the presence of the accused's wife in the house, which is detrimental to the prosecution's case as it shows that the accused's wife had access to the house and the garage area. [60] Further, the prosecution asserted only the specific part of PW2's evidence as a hostile witness. Thus, the rest of the evidence by PW2 is not expunged or disregarded by the court. [1] Having noticed that PW1 and PW2 are the accused parents, the court may consider that the witnesses are interested witnesses as urged by the prosecution. Be that as it may, the court is mindful of the decision in Balasingam v PP [1959] MLJ 193 on page 194, where the Court held: "After all there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of the evidence to the contrary and the surrounding circumstances." [61] Considering the evidence in totality, the court believes that PW1 and PW2 are reliable witnesses regarding the evidence on the wallet. PW2 corroborated PW1's evidence that the accused's wallet was on the staircase at the material time. To further support the court's conclusion, the evidence given by PW1 was not treated as hostile by the prosecution. PW3 did not administer the caution statement under section 37B DDA 1952 [62] The defence counsel argued that section 37B DDA 1952 is applicable. The defence further argued that the statement made by the accused that "ada simpan barang salah dalam rumah" was a confession when PW3 asked whether he had kept any incriminating evidence is equivalent to a statement within the ambit of section 37B DDA 1952. [63] The court is of the view that failure by PW3 to administer caution is fatal to the prosecution's case. See Ngu Chee Wui v PP [2015] 9 CLJ

CONCLUSION [64] In the final analysis, the court found that the prosecution had failed to prove the essential ingredients of possession under DDA and the