Harvinder Singh A/L Joginder Singh v Pendakwa Raya (J-05(SH)-34-01/2016)

In this case there are two related appeals, where the accused was charged with trafficking in drugs under section 39B (1)(a) of the Dangerous Drugs Act 1952 (‘DDA’).

At the close of the defence case, the learned High Court judge found that the accused had only committed an offence under section 6 of the DDA, which is punishable under section 39A(2) of the same Act. The accused was accordingly sentenced to 14 years imprisonment and 10 strokes of the rotan.

Both the accused and the prosecution appealed against this decision. The accused appealed both in respect of the finding of guilt under section 6, as well as the sentence imposed pursuant to section 39A(2) of the DDA. The prosecution appealed against the reduction of the charge to one under section 6, maintaining that the learned judge had erred in failing to convict the accused under section 39B DDA. 3

Very briefly, this is a case where the accused testified that he went to the house of SP-4 (the star prosecution witness) to purchase RM100-00 worth of syabu. He left his home at about 7.30 p.m. on a motorcycle. He was carrying nothing else (save for his helmet on his head and his jacket which he wore (according to him and his mother, and corroborated by the friend whom he was visiting, namely SP-4).

When he arrived at the premises in Taman Munsyi (not SP- 4’s home, but a house belonging to SP-4’s friend) he parked his motorcycle outside the house and placed his jacket and helmet on the same. At this point, SP-4 emerged from the house and handed him keys to the car parked in front of the house. The vehicle belonged to SP-4’s wife, SP-6.

SP-4 asked the accused to pick up his friend by the name of ‘Saintis’ from a prescribed place. The accused stated that he knew ‘Saintis’ by that name as he had met him before at the same premises.

SP-4 was the ‘star’ prosecution witness. SP-4’s version of events, on the other hand, is that the accused asked to borrow his car and for that purpose came by to the house at Taman Munsyi. SP-4 says that he asked a few questions and the accused then took the car. SP-4 states that the accused took the car at 6.30 p.m. SP- 4’s testimony on this point is contradicted by his wife, SP-6, who testified that SP-4 took the car out from 5 - 5.30 p.m., and then returned home and went out again at 8 pm and returned at 8.30 p.m. 4

If SP-4 had given the car to the accused at 6.30 p.m., then he could not have returned home and had his dinner as stated by his own wife.

The accused then drove the car to a point near where he was to pick up Saintis. This was between 8.40 and 8.50 p.m. As soon as he arrived, he realized that there was a police ambush waiting for him (pursuant to a tip off to the raiding officer). The police raiding team found nothing on the accused’s person, but found two plastic bags containing two containers sealed with sellotape, with cannabis within these containers, weighing approximately 4.8 kg. The two plastic bags were on the floor well or foot rest of the passenger’s seat, adjacent to the driver’s seat.

The accused denied all knowledge of the drugs, maintaining that they were not his, that he had not even noticed the plastic bags until he was driving mid-way to pick up Saintis, and that in any event, he was not particularly suspicious, as the two plastic bags contained boxes, one of which was marked Sustagen which he assumed to be milk powder.

The accused was arrested. He pointed the police to SP-4, so they went to the house where SP-4 was, and found other drugs, namely syabu there. The accused was charged with trafficking. SP- 4 was released in respect of the drugs marked as P7A and B.

SP-4’s evidence, which the prosecution relies upon heavily, but which the trial judge does not appear to have accepted, impliedly, is his statement that there was nothing in the car (i.e. no 5 P7A and B) when he handed over the keys to the accused. SP-4 also denied all knowledge of the 4.8 odd kg of cannabis in P7A and B.

SP-4 however, confirms two important things: (a) The accused was not carrying anything when he turned up at the Taman Munsyi house; (b) the drugs which were found in sealed boxes and placed in plastic bags (P-7A and B) did not belong to the accused.

The judge found the existence of a prima facie case at the close of prosecution, but after hearing the defence concluded, inter alia, as follows:

It was reasonable for the accused to infer that the plastic bags contained milk powder, as the containers, one of which was marked Sustagen, were sealed, and then placed in containers.

However even if the accused had no mens rea knowledge about the drugs, he remained in ‘passive’ possession of the drugs, hence the reduction of the case to a charge under section 12(2). The Dissenting View [15] It is evident from the foregoing, that the trial judge, who had the audio-visual advantage, believed the accused when he said that he did not know that there were 4 kg of cannabis in the two plastic bags. If he did not know that the two plastic bags contained 6 cannabis, then it follows that he could not possibly have possession of the drugs, because knowledge is not mere physical custody, but includes mens rea knowledge of the existence of those drugs. It would further follow, therefore, that the accused could not possibly be trafficking either. [16] It therefore appears that the learned judge erred in law in his comprehension and application of the law on ‘possession’, there cannot be ‘passive possession’. Possession necessarily includes knowledge of the existence of the drugs. Therefore there should be appellate intervention only on this issue of law. It would, however, follow that the accused should be acquitted because neither possession nor trafficking was established. [17] In the Singapore Court of Appeal case of Toh Ah Loh & Mak Thim v Rex (1949) 15 MLJ 54, Gordon-Smith Ag. C.J stated: “Possession, in order to incriminate a person, must have the following characteristics. The possessor must know the nature of the thing possessed, must have in him a power of disposal over the thing, and lastly must be conscious of his possession of the thing. If these factors are absent, his possession can raise in presumption of mens rea, without which (except by statute) possession cannot be criminal.” [18] The High Court in Saad Ibrahim v PP [1968] 1 MLJ 158 referred to and followed the case of Toh Ah Loh (above). Yong J (as he then was) distinguished between “mere possession” and “possession with mens rea”. 7 [19] Mohd Saari JCA in the Court of Appeal case of Basil bin Omar v PP [2003] 1 MLJ 191 explained that: “Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case.” [20] In the case of Basil (above), the court found from the conduct of the accused that he had knowledge that he was carrying drugs – inter alia he tried to avoid the police roadblock, he tried to run away and put up a struggle when caught. [21] Gopal Sri Ram (JCA) (as he then was) in PP v Karim Ab Jabar [2008] 5 CLJ 173, stated that: “….the essence of circumstantial evidence is not the effect of the individual strands of evidence but the combined effect of all the circumstances when taken together… not only must the prosecution prove the factum of physical possession but also the knowledge of the respondent as to the nature and quality of drug possessed… The mental element in a crime must, in the absence of an admission by the respondent, be established through circumstantial evidence from which admissible inferences may be drawn.” The Majority View [22] My learned brothers differ with my analysis. They are of the view that the learned judge erred in his assessment of the facts. The primary reason for this is the submission by the prosecution that SP- 8 4’s statement that there were no drugs, i.e. that P7A and B were not in the car when he handed over the keys to the accused, was not challenged. As such that becomes, it is argued, a statement of truth. They are of the further view that the only inference that can be drawn from this is that the accused placed the drugs in the car. No other inference is either reasonable or plausible, in their view. The Dissenting View [23] Again I beg to differ with my learned brothers on this point. I take the view that although not cross-examined on this sole statement, it is not possible to state with any degree of certainty that the only or sole conclusion or inference to be drawn is that the drugs were placed in the car by the accused. Other inferences are possible, namely that:

SP-4’s statement is not without doubt, given the other parts of his evidence, which are inaccurate – in short his credibility is in issue. SP-4’s evidence has to be assessed as a whole. The weight or probative value to be accorded to his evidence should not be inordinate or excessive, given the inconsistencies in his testimony, and the evidence of his wife, in relation to his habits and mental state, which show that it is unsafe to rely on his evidence alone, to convict the accused of trafficking, particularly on the basis of one unchallenged sentence of his testimony;

The learned trial judge, who had the audio-visual advantage, after hearing SP-4 and the defence case, 9 concluded that it was reasonable for the accused to believe that the plastic bags contained sealed containers of milk powder, and secondly, that the accused was only in momentary or temporary possession of the car as he only drove it for 20 minutes. There is insufficient basis for an appellate court to overturn or reverse this finding of fact, based on the sole consideration that SP-4 was not cross-examined on his statement to the effect that the bags, P7A and B were not in the vehicle when the keys to the vehicle were given to the accused;

There was no evidence that SP-4 had inspected the car prior to handing over the keys;

There was no reason for the accused to “borrow” SP-4’s car to “carry” or “collect” such drugs when he had his own motor-cycle and could easily have done so without the use of a car. For this reason, the accused’s version of events to the effect that he came to purchase syabu from SP-4 and was instructed/directed to fetch ‘Saintis’ from a designated place, appeared far more plausible and credible. This was clearly the finding/thinking of the trial judge who accepted the defence case to the effect that the accused had no knowledge of the contents of the plastic bags;

The background relating to SP-4, as testified by his wife, SP-6 cannot simply be ignored. It is relevant evidence by his own wife, which evidences the fact that he is a user of 10 drugs, and he suffers from mental illness. Taken together with the accused’s version of events that he went to purchase syabu from SP-4 at premises other than his home, it is equally plausible that the drugs in question belonged to SP-4. [24] Given these facts, it appears to me that taken cumulatively, these matters are sufficient to cast a reasonable doubt on the veracity of the prosecution’s case. In other words it is not beyond reasonable doubt that the accused is a trafficker of the 4.8 odd kilograms of cannabis. [25] Further, the facts of our present case can be distinguished from the Court of Appeal case of Roslan bin Sabu @ Omar v Public Prosecutor [2006] 5 MLJ 244. In that case, the court held that the accused was guilty of “wilful blindness” and had “shut his eyes to what was obvious”. He “could not have missed the glaring sight of the drugs since the plastic used to wrap them was transparent, and so were the two carrier bags”. The Court of Appeal in the case of Roslan referred to the factual matrix in two other cases (discussed below) and commented that in those cases, there was a likelihood that due to the colour of the bag or wrapper containing the drugs, the accused might not have known what the contents were. [26] In PP v Tan Tatt Eek [2005] 2 MLJ 685, the plastic bag containing the drugs was orange while in Taib Mohamad v PP [2002] 3 MLJ 476, the plastic bag containing the drugs was black and the drugs were wrapped with brown tape. In the latter case, KC 11 Vohrah JCA in the Court of Appeal held that in was not possible for the accused to know that the bag contained cannabis. [27] In the former case, the Federal Court by a majority decision of 4:1 upheld the principle against double presumptions as laid down in Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ

The Federal Court in Muhammad bin Hassan had decided that to constitute 'possession' under s 37(da) of the Act, there must be an express affirmative finding of possession and not a legal presumption of possession as provided in s 37(d) of the Act. After the case of PP v Tan Tatt Eek [2005] 2 MLJ 685 settled the law on double presumptions, another panel of the Federal Court (only 3 members instead of 5) decided that the High Court had erred in finding the accused guilty of trafficking in dangerous drugs, and affirmed the decision of the Court of Appeal in convicting the accused on a reduced charge of possession. [28] In addition, in the case of Roslan (above), James Foong JCA (as he then was) stated”: “There must be direct proof or inference that the accused knew what he was carrying was illicit drug…. To successfully infer such knowledge in this kind of situation, there must only be one exclusive inference to this fact to the exclusion of other possibilities.” [29] In the present case, there are multiple inferences which may be drawn, as postulated in paragraph 23 above. 12 [30] It is trite in criminal law that an accused should be given the benefit of the doubt. As far back as 1948, Spenser Wilkinson J in the Court of Appeal case of Tai Chai Keh v Public Prosecutor [1948 – 49 MLJ Supp. 105] stated: “Where there is more than one inference which can reasonably be drawn from a set of facts in a criminal case, we are of the opinion that the inference most favourable to the accused should be adopted.” [31] This sentiment was reiterated in 2009 by KN Segara JCA in the case of Sridhar v Arunasalam v PP [2009] 6 CLJ 595, although His Lordship did not refer to the case of Tai Chai Keh. His Lordship went on further to say that the prosecution must prove its case without relying on any adverse inference against the accused: “….the well-settled principles in criminal law that an accused must be accorded the benefit of any inference favourable to him from a given set of facts must be strictly adhered to and the prosecution cannot shirk its responsibility to prove its case beyond a reasonable doubt by invoking any adverse inferences from the said facts, to establish any ingredient of the offence.” [32] For the reasons above, it is my view that this is an unsafe conviction and the accused should therefore be acquitted. [33] I do not agree that the finding of the learned trial judge of guilt under section 6 of the DDA, should be enhanced to one of guilt under section 39B of the DDA. For these reasons, I am constrained to dissent from the majority. Accordingly Appeal No. J-05(SH)-34- 13 01/2016 is allowed and Appeal No. J-05(SH)-36-01/2016 is dismissed. Nallini Pathmanathan Judge Court of Appeal Malaysia Dated : 1st Disember 2016 For the Appellant : Dato’ Jagjit Singh a/l Bay Singh (Wan Muhd Ariff Akeer bin Wan Normazlan with him) Tetuan Jagjit Ariff & Co Peguambela & Peguamcara Suite D1-1-9 Solaris Dutamas No. 1 Jalan Dutamas 1 50480 Kuala Lumpur For the Respondent : Puan Tetralina binti Ahmed Fauzi