G.Vasan a/l Gunasegran v Pendakwaraya (C-05(M)-310-08/2016)

(a) That the learned JC erred in ruling that the appellant was in custody and control of the drugs found in the vehicle despite the prosecution’s failure to exclude the possibility of access by others to the vehicle ;

(b) That the learned JC erred in law and fact when delving into the realm of speculation in arriving at conclusion that the appellant had the requisite knowledge of the existence of the drugs in the vehicle;

(c) That the learned JC erred in failing to invoke the presumption of adverse inference under section 114(g) of the Evidence Act 1950 against the prosecution’s for the failure to call, offer and/or produce witnesses that are material to the unfolding of the prosecution’s narrative; and

(d) That the learned JC erred in hastily dismissing the appellant’s defence without having accorded maximum evaluation and full judicial appreciation to it. [21] We will deal with each of the grounds advanced by the appellant in turn. Grounds (a) & (b) Possession [22] We shall deal with both grounds (a) and (b) together. The learned JC concluded that the appellant had possession of the impugned drugs and remarked as follows: “Oleh kerana beliau berseorangan di dalam kenderaan tersebut, maka tertuduh mempunyai kawalan dan jagaan ke atas kenderaan tersebut dan apa-apa barang yang dibawa di dalamnya. [Grounds of Judgment, page 12, Record of Appeal, Volume 1] … dadah yang dijumpai di dalam ruang kosong berdekatan dengan handbrek jelas terletak “in plain view” tertuduh dan berada berdekatan dengannya ketika memandu kereta tersebut. Ianya boleh dilihat dengan mata kasar. Oleh itu berdasarkan kepada warna plastic yang berbeda dengan warna hitam di persekitaran tempat dadah dijumpai tersebut dan kedudukannya dengan tertuduh adalah tidak mungkin beliau tidak mengetahui kandungannya.”. [Grounds of Judgment, page 15, Record of Appeal, Volume 1] [23] It was the submission of the learned counsel for the appellant that the mere fact that the appellant was the sole occupant in the vehicle, cannot be taken as a conclusive proof that the appellant was in possession of the drugs found in the vehicle (see Romi Amora b. Amir v. PP [2011] 4 MLJ 571). The appellant’s case, as put to PW3, was that he had given Raja a lift to Bentong prior to the arrest and the black sling bag belonged to Raja. Learned counsel for the appellant sought to show the probability of access by others in order to negate the exclusive possession on the part of the appellant. According to learned counsel, the impugned drugs i.e. exhibits P18A and P18B could have been concealed or planted there by Raja. It was contended by learned counsel that the appellant’s reaction was pertaining to the drugs found inside the cigarette box that he was alleged to have dropped and nothing to do with exhibits P18A and P18B. [24] Learned counsel further submitted that the finding of the learned JC that P18A and P18B could be seen by the naked eye was flawed because the drugs were not placed in plain view of the appellant but underneath a secret compartment. In the circumstances of the case, there was nothing to show that the appellant knew what was contained in the red and pink bags and the learned JC was in serious error when delving into the realm of speculation and in arriving at the conclusion that he did. Thus, learned counsel for the appellant submitted that the learned JC erred in failing to consider the evidence from all angles and to draw the inference that is favourable to the appellant. [25] It is trite that what constitutes possession under the Act is a question of law. However, whether a person can be said to be in possession of the impugned drugs in a given case is a question of fact depending on the particular circumstances of the case. (See Siew Yoke Keong v. PP [2013] 4 CLJ 149). [26] We have scrutinised the whole evidence on record and with respect we found that the learned counsel’s argument was misconceived. It was clearly proved that the appellant was the sole occupant of WXV 8540 and was having the sole control of the vehicle from at about 4.00 p.m, until the time of his arrest whilst at the driver’s seat inside the vehicle at about 5.20 p.m. by PW3 and his team. The keys and remote were recovered from the appellant. He was in physical proximity to the plastic bags containing the impugned drugs. All these factors, taken together, showed that the appellant could have dealt with the impugned drugs, though he was not the owner of the vehicle. For the same reason, the appellant was thus also having custody or control of the two plastic bags containing the said drugs (see PP v. Abdul Rahman Akif (supra); Parlan Dadeh v. PP [2008] 6 MLJ 19; Khairuddin Hassan v. PP [2010] 6 MLJ 145 and Aedy Osman v. PP [2011] 1 CLJ 273). [27] The presence of the two plastic bags inside the vehicle which were under the exclusive control of the appellant at the material time, and the fact that he needed to guard the plastic bags, must necessarily give rise to a strong inference that the appellant had the requisite knowledge that the two plastic bags contained the said drugs. As said by the Federal Court in PP v. Abdul Rahman Akif (supra): "... again knowledge cannot be proved by direct evidence, it can be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite...." [28] The fact that the plastic bags were found hidden in the secret compartment would not assist the appellant to negate such an inference (see Zulfikar bin Mustaffah v. PP [2001] 1 SLR 633 and PP v. Abdul Rahman Akif (supra)). From the oral evidence of PW3 and the photographs, it could be seen that the red coloured plastic was sticking out from the black coloured lid. The contrast of red accent against the neutral background is easily perceived, thus making the presence of plastic bags more noticeable. From the evidence of PW3, it is clear that little effort was required to uncover what was hidden in the secret compartment. Further, the appellant’s ATM cards were also recovered from the vehicle. Therefore, we are of the view that on the facts and in the circumstances of this case, the learned JC was correct in holding that a prima facie case had been established against the appellant. [29] We noted that during the cross-examination of PW3 and PW6, the defence had suggested to those witnesses that Raja or someone else had hidden the plastic bags in the vehicle without the appellant’s knowledge. PW3 and PW6 strongly disagreed with the suggestion. [30] Now, it is elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concern that witness and to inform such witness that other witness may contradict him or her so as to give such witness fair warning and an opportunity of explaining the contradiction and defending his or her credibility. It is grossly unfair and improper to let the evidence go unchallenged in cross-examination and afterwards argue that he or she must be disbelieved. Failure to put an accused’s version to a prosecution witness will generally be taken to mean that the accused accept the version of the prosecution witnesses. [31] It is also trite that mere suggestions in the cross-examination are not substantive evidence. Of course, if he or she admits to the suggestion put, the fact is proved. Otherwise, evidence must be led to prove the allegation. [32] In the instant appeal, not a shred of evidence was produced to substantiate the allegation. The undisputed fact was that the appellant was alone in the vehicle when he was caught with the impugned drugs. There was no possibility of the involvement of any other person/persons. [33] The next question to be considered is whether there is evidence of trafficking by the appellant. In this instant appeal, the amount of dangerous drugs involved is 28.1 grammes in weight (13.6 grammes of Heroin and 14.5 grammes of Monoacetylmorphines), which is in excess of 15 grammes; thus triggering the presumption of trafficking as provided in section 37(da) (iiia) of the Act. Further, other drug paraphernalia such as empty bottle and empty transparent packets found in the zipper bag (P12) underneath the front seat are circumstantial evidence which showed that the appellant was indeed engaged in drug trafficking activities. Therefore, on the available evidence on record, it is our finding that the learned JC had correctly called upon the appellant to enter upon his defence on the trafficking charge. Ground (c) Adverse inference [34] Learned counsel for the appellant mounted an attack on the alleged failure of the prosecution to call Corporal Norizan and Thulasi, thereby occasioning the application of the presumption of an adverse inference against the prosecution’s case. [35] On the contrary, learned Deputy Public Prosecutor submitted that there was no necessity to call Corporal Norizan because he did not play an active role during the raid. He candidly admitted that a subpoena had been served on Thulasi but she had failed to turn up in Court. He argued that the prosecution has a discretion whether or not to call a particular witness. In this instant appeal, all essential witnesses were called to unfold the narrative on which the prosecution is based. Therefore, the discretion had been exercised in a manner in which the appellant suffered no prejudice or unfairness. He further argued that the presumption does not arise in this instant appeal as there was no withholding of evidence since Corporal Norizan was offered to the defence. [36] Now, a number of witnesses may have observed a criminal occurrence and have their statements taken by the police. However, it is not necessary for the prosecution to produce each and every one of them. All that is required from the prosecution is to produce witnesses whose evidence can be believe in the unfolding of its complete narrative, that is, to prove the essential elements of the crime and in this case, custody, control, and knowledge, so as to prove the case beyond reasonable doubt. The usage of the word ‘may’ under section 114 illustration (g) of the Evidence Act 1950 gives the discretion to the court whether or not to invoke the adverse inference to a given set of facts. It is not a mandatory inference. To draw an adverse inference against the prosecution, the Court must be satisfied that the witness that was not offered was a material witness; the prosecution purposely withhold evidence which it possessed and which was always available; and that what the prosecution did was done with an ulterior motive to frustrate the defence’ (see Munusamy v. PP [1987] 1 MLJ 492, Chua Keem Long v. PP [1996] 1 SLR 510, Pekan Nenas Industries Sdn Bhd v. Chang Ching Chuen [1998] 1 MLJ 465, Nanda Kumar Kunyikanan & Anor v. PP [2011] 8 CLJ 406, Siew Yoke Keong v. PP (supra), Ong Hooi Beng & Ors v. PP [2015] 3 MLJ 812 and Ghasem Hozouri Hassan v. PP [2018] MYFC 13). [37] Applying the above principles to our instant appeal, it is our considered view that counsel’s argument is without merit. After having examined the evidence on record on its totality, we are of the considered view that the prosecution had discharged its burden by calling all essential witnesses to establish its case. It was our judgment that the learned JC was correct to find that the appellant had mens rea possession of the impugned drugs. We found no gap in the narration of the prosecution’s case. Therefore, the failure on the part of the prosecution to call Corporal Norizan and Thulasi to testify did not in any way attract the invocation of adverse inference against the prosecution. There was nothing in the record to show that the prosecution was actuated by oblique motive and was suppressing evidence favourable to the appellant in order to impair the appellant’s defence. Ground (d) Non-appreciation of the Defence [38] Learned counsel for the appellant submitted that the learned JC had erred when his Lordship had dismissed the defence as an afterthought. Our attention was drawn to the fact that it was put to PW3 and PW6 during cross examination concerning the existence and role of Raja. [39] The Federal Court, no doubt, in Alcontara a/l Ambross Anthony v. PP [1996] 1 CLJ 705, has observed at pages 718 – 719 that: ... However, failure on the part of the defence to put its case as aforesaid, can never, by itself, relieve the prosecution of its duty of establishing the charge against the accused beyond any reasonable doubt. At this stage, we would interpolate to remark - though we are digressing somewhat from the point concerning the onus of proof - that the Judge went so far as to hold 'that the defence by its failure so to put such questions to the prosecution witnesses ought not to be allowed to raise such issues at the defence stage'. In this, he was clearly wrong, since it is settled law, that although a Court may view with suspicion a defence which has not been put to the appropriate prosecution witnesses who might have personal knowledge of the points at issue, the Court is still bound to consider the defence, however weak, and to acquit if not satisfied that the prosecution has discharged the burden of proof which rests upon it.”. [40] In the case before us, it must however be noted that there was a difference scenario altogether. The appellant was not stopped from raising the defence on account that such defence was not put to the prosecution’s witnesses as was stated in the Alcontara’s decision. We have carefully scrutinized the JC’s evaluation of the defence case. In our view, to say that the learned JC failed to appreciate the defence of the appellant is totally misconceived. The learned JC did not reject the appellant’s defence on the simple ground of belated disclosure. In fact, at page 24 to page 27 Volume I of the record of appeal, it is evident that the learned JC had carefully analysed and scrutinized the defence’s case before categorising the defence as an afterthought. We say that there was nothing to show that the JC’s decision was made without proper evaluation of the appellants’ statement on oath. The learned JC’s comment on the late disclosure of Raja during trial merely goes to show the weight that the court attached to the appellant’s defence (see Teng Howe Sing v PP (supra), PP v. Badrulsham bin Baharom [1988] 2 MLJ 585). The existence of Raja was critical to the defence’s case. In such circumstances, one would have expected the appellant to extricate himself and inform SP3 or SP6 about Raja and his alleged role at the first available opportunity when he was stopped at the roadblock or when his cautioned statement was recorded. It is pertinent to observe here that the appellant and SD2 did not know the full name of Raja nor his full address except that they know that Raja stays at Kota Damansara and works as a despatch. So we are left with nothing more than the bare oral assertion of the appellant in respect of Raja’s existence and the role played by him. The evidence in this instant appeal goes to show that the defence has not given an ‘Alcontara Notice’ in the right perspective (see Phiri Mailesi (Zambian) v. PP [2013] 5 MLJ 780, Rengarajan Thangavelu v .PP [2015] 1 CLJ 993, Marimuthu Seringan v. PP [2016] 1 LNS 64). [41] Besides the defence’s failure to put their case to the material prosecution witnesses at the earliest opportunity, the learned JC also considered the inconsistencies of the defence version. The appellant had initially testified that he had sent Raja to Karak on 25.1.2014. He then changed the destination to Bentong. He made no mention of the location where Raja alighted the vehicle. The appellant seems clueless about the destination and he was not re-examined on this point to offer further explanation. We are also mindful that in his defence the appellant claimed Corporal Norizan had retrieved the ATM cards from the sling bag that belonged to Raja who had entrusted it to the appellant. We found that the appellant’s assertion did not dwell well with the prosecution’s evidence. As explained by SP6, appellant was the account holder of both ATM cards and this piece of evidence was not challenged by the defence. If the bag had truly belonged to Raja, it seems illogical for the appellant to put his own ATM cards in Raja’s bag? The appellant’s assertion that it was Corporal Norizan who had conducted the search and arrest was contradicted by PW3 and PW6, all of whom had denied that Corporal Norizan’s involvement in the raid and his alleged role. There is no reason to doubt their version of events. Their evidence were further corroborated by the search list P24 and the police report P25 which confirmed that it was PW3 who conducted the search. Thus, all in all, we found that the inconsistencies of appellant’s testimony on such a crucial issue diminished the weight that could be attached to the defence version. [42] Learned counsel also submitted that, there was no evidence of “overt act” such as an attempt to escape from which mens rea could be imputed and on the contrary the appellant had gave full cooperation to the authority. This argument, with respect, overlooks the situation at the material time. The roadblock was set up at a narrow street to enable the police officers to funnel pedestrians and vehicles. There were barriers or blocking obstacles to deny entry or exit. The whole area was guarded by 12 police officers and restricted that would make it hardly impossible to escape and even if the appellant did he would surely be arrested. [43] Since the appellant in his defence did not say anything on the purpose for which he was carrying such large amount of drugs, his defence being a defence of no knowledge (and not that he was not trafficking), there was no material before the learned JC for his Lordship to consider whether the appellant's explanation had cast a reasonable doubt in the prosecution case. In the circumstances, the learned JC was right in finding that the charges had been proved beyond reasonable doubt. It is our view that in any event, there was no material misdirection by the learned JC on this score given that the overwhelming and unrebutted evidence in this case directly implicated the appellant. Conclusion [44] An appeal is a rehearing and we have undertook this onerous task to re-evaluate the evidence. We found no difficulty in holding that based on the strength of the prosecution’s evidence considered in the light of the defence testimony and the well-recognised legal principles, that the finding of the learned JC is unassailable. Thus, we upheld the convictions and sentences by the High Court and the appeal is dismissed. So ordered. Dated: 24th October 2018 sgd. (MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia Counsel for the Appellant: Kitson Foong Messrs. Kit & Associates Advocates & Solicitors Suite 195-1, Sri Wangsaria Jalan Ara, Bangsar Baru 59100 Kuala Lumpur. Counsel for the Respondent: Adam bin Mohamed Deputy Public Prosecutor The Attorney General’s Chambers Appellate and Trial Division 62100 Putrajaya.