Gopi Kumar A/L Subramaniam v Pendakwa Raya (W-05(M)-114-02/2018)

1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE CRIMINAL JURISDICTION) CRIMINAL APPEAL NO: W-05(M)-114 & 115-02/2018 BETWEEN GOPI KUMAR A/L SUBRAMANIAM … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the matter of the High Court at Kuala Lumpur Criminal Trial No: 45A-5 & 6-1/2017 Between Public Prosecutor And Gopi Kumar a/l Subramaniam] CORAM AHMADI HAJI ASNAWI, JCA ABDUL RAHMAN SEBLI, JCA KAMARDIN HASHIM, JCA JUDGMENT OF THE COURT [1] In the High Court at Kuala Lumpur, the appellant was charged with offences specified in the following three charges: First Amended Charge “Bahawa kamu pada 22 Jun 2016 jam lebih kurang 12.45 malam di dalam kereta Proton Perdana Nombor Pendaftaran WJN 9556, di kawasan tepi Jalan 10/18A, Taman Mastiara, Batu 5, Jalan Ipoh, di dalam Daerah Sentul, Wilayah Persekutuan Kuala Lumpur telah didapati mengedar dadah berbahaya jenis Cannabis berat bersih 45,290 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen 39B(2) Akta yang sama.” 2 Second Amended Charge “Bahawa kamu pada 22 Jun 2016 jam lebih kurang 1.45 pagi di dalam Rumah bernombor 43, Jalan 15/18A, Taman Mastiara, Batu 5, Jalan Ipoh, di dalam Daerah Sentul, Wilayah Persekutuan Kuala Lumpur telah didapati mengedar dadah berbahaya jenis Heroin berat bersih 18.4 gram dan Monoacetylmorphines berat bersih 2.25 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen 39B(2) Akta yang sama.” Third Amended Charge “Bahawa kamu pada 22 Jun 2016 jam lebih kurang 1.45 pagi di dalam rumah bernombor 43, Jalan 15/18A, Taman Mastiara, Batu 5, Jalan Ipoh, di dalam Daerah Sentul, Wilayah Persekutuan Kuala Lumpur telah didapati dalam milikan kamu dadah berbahaya jenis Methamphetamine berat bersih 16.20 gram. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen 39A(1) Akta yang sama.” [2] He claimed trial to the charges at the conclusion of which he was found guilty of all three. For the first and second charges, he was sentenced to death whilst for the third charge, he was sentenced to 4 years imprisonment with effect from his date of arrest and 5 strokes of the rotan. His appeal was only against his convictions for the first and second charges, which we dismissed by a unanimous decision after hearing arguments by both sides. These are the grounds of our decision. [3] The salient facts are as follows. On 22.6.2016 acting on information received at about 5 pm, ASP Shaiful Hezereen bin Shariman (SP5) together with Inspector Ismail bin Jamal Abidin (SP6) and 10 other police personnel carried out surveillance at Jalan 15/18A, Batu 5, Jalan Ipoh, Taman Mastiara, Kuala Lumpur. 3 [4] At about 1.00 am, an orange Perodua Myvi with registration No. WC4077L stopped in front of house No. 43 at the same address. SP5 and his raiding party rushed towards the car and instructed the driver (the appellant) to get out of the car. He alighted from the car as instructed, followed by a woman who was carrying a one year old child. When he came out of the car, the appellant was carrying a sling bag on his shoulder. [5] SP5 examined the sling bag and found one remote alarm, a car key, a bunch of keys and the appellant’s identity card inside the bag. Using the remote alarm and key taken from the appellant, SP5 opened the door of a Proton Perdana with registration No. WJN9556 which was parked nearby. No one was inside the car. [6] Inside the Proton Perdana, SP5 found at the rear seat two big bags containing 48 slabs of dried plant material suspected to be ganja. Also found in the Proton Perdana was a business card in the name of “Gopi” and “Mohana” (later confirmed to be the appellant’s wife’s name). [7] At about 1.45 am on the same day, SP6 and his party proceeded to house No.43. On their arrival, the grill and the door to the house were locked. Using one of the keys taken from the appellant, SP6 opened the grill and door. There was no one inside the house. He and his team went upstairs to conduct a search. In the first room they found 6 plastic packets containing substances suspected to be dangerous drug. [8] In the second room they found 4 more plastic packets containing substances suspected to be dangerous drug. The third room and the rooms downstairs were also searched but no drug was found. 4 [9] The drugs seized from the Proton Perdana and from house No.43 were sent to the Chemistry Department for analysis. The 48 slabs of dried plant material found inside the Proton Perdana were confirmed by the Chemist to be cannabis weighing 45,290 grammes, (the subject matter of the first charge), whilst those found in house No.43 were confirmed to be heroin weighing 18.4 grammes and monoacetylmorphines weighing 2.25 grammes (the subject matter of the second charge) and methamphetamine weighing 16.20 grammes (the subject matter of the third charge). All these drugs are listed as dangerous drugs in the First Schedule to the Dangerous Drugs Act 1952 (“the DDA”). [10] On these primary facts, the learned Judicial Commissioner (“JC”) found that a prima facie case had been established against the appellant. Accordingly, he called upon the appellant to enter on his defence. It was his finding that the appellant had knowledge of the cannabis slabs found in the Proton Perdana and the drugs found inside the rooms at house No.43. This finding can be found at paragraphs 42 and 48 respectively of the grounds of judgment: Drugs found in the Proton Perdana “42. Meneliti kepada tindakan Tertuduh yang seperti laloq, mabuk, beratkan badan, ketakutan, risau dan gelisah semasa dadah-dadah berbahaya ditemui di dalam kereta Proton Perdana tersebut setelah ditangkap, adalah suatu yang munasabah untuk mahkamah ini membuat satu inferen dengan menggunapakai kes Tong Peng Hong v. Public Prosecutor (supra) bahawa Tertuduh mempunyai pengetahuan tentang dadah tersebut.” Drugs found in house No.43 “58. Dalam kes ini, saya berpuas hati bahawa pihak pendakwaan telah berjaya membuktikan Tertuduh mempunyai jagaan dan kawalan ke atas dadah Heroin dan 5 Monoacetylmorhines yang menjadi hal perkara asas dalam pertuduhan. Tertuduh juga didapati mempunyai pengetahuan “Mens Rea” terhadap dadah tersebut.” [11] It is pertinent to note that the learned JC made this finding after a careful assessment and evaluation of the evidence. As for the credibility of the prosecution witnesses, this is what the learned JC found at paragraph 80 of his grounds of judgment: “Dalam meneliti penghujahan peguambela dan cara mana keterangan (SP5) (SP6) yang sangat konsisten dengan laporan polis, saya tiada mempunyai apa-apa alasan untuk meragui kebenaran dan kredibiliti saksi-saksi pendakwaan terutamanya (SP5) (SP6) yang menyatakan dengan tegas bahawa 2 beg besar yang mengandungi dadah-dadah berbahaya ditemui diatas tempat duduk belakang dalam kereta Perdana tersebut. Tiada alasan dan tiada kelebihannya kepada (SP5) (SP6) untuk bercakap bohong bagi menganiaya Tertuduh yang menghadapi hukuman mati.” [12] When called upon to state his defence, the appellant chose to give sworn evidence. Essentially, his defence was to shift the blame on one Thiyagarajan for the presence of the cannabis slabs in the Proton Perdana. According to him, Thiyagarajan was the last person who used the car on 20.6.2016. He said he had no knowledge of the drugs. [13] As for the drugs found in house No.43, his explanation was that there were others who had access to the house, including his relatives. He said the house had also been broken into. [14] Having given careful consideration to the defence case, the learned JC found that the appellant failed to raise any reasonable doubt in the prosecution’s case and that the prosecution had proved its case beyond all reasonable doubt. It was also his finding that the appellant failed to rebut the statutory presumption under section 37(da) of the DDA. We 6 reproduce below his penultimate finding (in capital letters as they appear in the notes of proceeding): “DENGAN YANG DEMIKIAN, SAYA BERPUASHATI BAHAWA PEMBELAAN TERTUDUH ADALAH TIDAK MUNASABAH LANGSUNG DAN TIDAK MEMBANGKITKAN SEBARANG KERAGUAN MUNASABAH ATAS IMBANGAN KEBARANGKALIAN DALAM KES PENDAKWAAN. SAYA JUGA BERPUAS HATI BAHAWA PEMBELAAN TELAH GAGAL UNTUK MEMATAHKAN ANGGAPAN SEKSYEN 37(d)(da) AKTA DADAH BERBAHAYA 1952. SEBALIKNYA SAYA BERPUASHATI BAHAWA PIHAK TIMBALAN PENDAKWA RAYA TELAH BERJAYA MEMBUKTIKAN KES INI MELAMPAUI KERAGUAN YANG MUNASABAH (BEYOND ALL REASONABLE DOUBT).” [15] In the appeal before us, the appellant raised only one ground, which is access to the Proton Perdana and to the rooms in house No.43. It was argued that there was a possibility that the drugs had been placed in the car and in the rooms by others without the appellant’s knowledge. What the appellant meant to say was that he was not in exclusive possession of the drugs. [16] With due respect, the issue is not whether others had access to the drugs, but whether the drugs were in the appellant’s possession at the material time. Others may have had access to the drugs but the law is not concerned with exclusive possession. The law is only concerned with possession: See PP v Denish Madhavan [2009] 2 CLJ 209 where Abdul Aziz Mohamad FCJ delivering the judgment of the Federal Court said at paragraph [16]: “It is inappropriate to speak of possession of an article in criminal law as exclusive possession. One is either in possession or not in possession, although one could be in possession jointly with another or others. To say that the prosecution of a drug case fails because there has been no proof of exclusive possession is apt to convey the wrong 7 impression that it is only in cases where possession is entirely with one person, that is, “exclusive” – that a conviction is possible.” [17] Thus, even if others had access to the Proton Perdana and the rooms in house No.43, the appellant would still be criminally liable if he was in possession of the drugs, either by himself or jointly with others. [18] In the present case, it was a firm finding by the learned JC that the appellant was in mens rea possession of the drugs in the Proton Perdana and in the rooms at house No.43 as he had knowledge of the drugs. By virtue of section 37(da) (iiia) and (vi) of the DDA, he was presumed to be trafficking in the drugs as the weights exceeded the prescribed minimum. [19] In the case of the cannabis found in the Proton Perdana, the weight was 226 times in excess of the prescribed minimum of 200 grammes, and in the case of the heroin and monoacetylmorphines found in house No.43, their combined weight was almost 5 times in excess of the prescribed minimum of 15 grammes. [20] Whether the drugs in the appellant’s possession were for the purpose of trafficking or otherwise is primarily a question of fact. Trafficking is proved if the appellant’s act falls within the definition given by section 2 of the DDA. However, where the statutory presumption under section 37(da) of the DDA is triggered, as in this case, the burden was on the appellant to prove that the drugs in his possession were not for the purpose of trafficking and not for the prosecution to prove that he was trafficking in the drugs. 8 [21] The procedure is that where mens rea or affirmative evidence of possession has been proved, the presumption of trafficking under section 37(da) of the DDA must be invoked by the court. In the Federal Court case of Muhammed Hassan v Public Prosecutor [1998] 2 CLJ 170 FC; [1998] 2 MLJ 273, Chong Siew Fai CJ (Sabah & Sarawak) in dealing with the presumptions under section 37(d) and (da) of the DDA said: “The ‘deemed’ state of affairs in s. 37(d) (ie, deemed possession and deemed knowledge) is by operation of law and there is no necessity to prove how that particular state of affairs is arrived at. There need only to be established the basic or primary facts necessary to give rise to that state of affairs ie, the finding of custody or control. Such presumptions as under s. 37(d) (and for that matter, the one under s. 37(da)) are sometimes described as “compelling presumptions” in that upon proof of certain facts by a party (in our present case, proof of custody or control in s. 37(d) by the prosecution), the court must in law draw a presumption in its favour (ie, presumptions of possession and knowledge) unless the other party proves the contrary. Such a presumption has the compelling force of law. It is a deduction which the law requires the trial court to make.” (emphasis added) [22] Where a statutory presumption such as the presumption under section 37(da) of the DDA applies, the principle in Mat v Public Prosecutor [1963] 1 LNS 82; [1963] MLJ 263 has no application. The legal burden where a statutory presumption applies can be only discharged if the accused can prove, on the balance of probabilities that the drug in his possession was not for the purpose of trafficking. [23] To entitle him to an acquittal, it will not be sufficient for him to merely cast a reasonable doubt in the prosecution’s case as to whether or not the drug was for the purpose of trafficking. He must prove it by admissible evidence. 9 [24] Thus, if the appellant failed to rebut the presumption by proving that the drugs were not for the purpose of trafficking, the consequence would be a conviction: See Public Prosecutor v Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89. In that case the Judicial Committee of the Privy Council held as follows: “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such finding will have the consequence of a conviction.” (emphasis added) [25] Public Prosecutor v Yuvaraj (supra) was a corruption case, but in Cohen Lorraine Philis & Anor v PP [1989] 2 CLJ 956; [1981] 1 CLJ Rep 18, which was a drug trafficking case, the then Supreme Court recognised that the law on statutory presumptions as stated in the Privy Council case has become “part of our law”. The ratio decidendi of the case is therefore applicable in drug trafficking cases. [26] Having regard to the totality of the evidence and the applicable principles in an appeal of this nature, which involved findings of fact which in turn involved the question of the credibility of the witnesses, we were not convinced that the learned JC was wrong in finding the appellant guilty of the first and second charges. 10 [27] On the evidence before him, the learned JC was perfectly entitled to come to the verdict, given his finding that the appellant was in possession of the drugs and that he failed to rebut the presumption of trafficking under section 37(da)(iiia) and (vi) of the DDA. [28] The presumption of trafficking could not have been rebutted by the appellant’s mere assertion in his defence that others could have access to the drugs. A valid defence would be where the drugs were for the appellant’s own consumption, as raised successfully in Cohen Lorraine Philis (supra). That was not the defence raised by the appellant and there was no such evidence before the court. [29] Even without the statutory presumption of trafficking under section 37(da) of the DDA, given the large amount of the drug, in particular the 45,290 grammes of cannabis found in the Proton Perdana, a valid inference could be drawn that the drug was for the purpose of trafficking: See Ong Ah Chuan v Public Prosecutor [1980] 1 LNS 181; [1980] 1 MLRA 283; [1981] 1 MLJ 64, a Privy Council decision. [30] It was for all the aforesaid reasons that we dismissed the appellant’s appeal and affirmed the decision of the learned JC. Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 4 July 2019. 11 For the Appellant: K.A. Ramu (Assigned) of Messrs K.A. Ramu & Associates. For the Respondent: Wong Poi Yoke, Deputy Public Prosecutor of the Attorney General’s Chambers.