Lai Thai Leong v Public Prosecutor (Q-05(M)-296-06/2018)

The appellant was charged with drug trafficking and the charge against him was as follows: “That you on the 12.5.2016 at about 11.00 am, at the parking space No. 251, in front of GDEX Express Sdn.Bhd. (Kuching Branch) Mo.307, Ground Floor, Jalan Tun Ahmad Zaidi Adruce, Central Park Commercial Centre in the district of Kuching, in the state of Sarawak, did traffic in dangerous drugs, to wit, 855.8 gram Methamphetamine and thereby you have committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under section 39B(2) of the same Act.”

The appellant claimed trial to the charge at the conclusion of which he was found guilty by the learned Judicial Commissioner (JC) and was sentenced to death.

This was the appellant’s appeal against his conviction and sentence, which we dismissed by a unanimous decision after hearing the parties. These are the grounds of our decision. 3

The prosecution’s case is as follows: i) The main witness for the prosecution is one Insp. Mohd Khairil bin Johar (PW6) who led a team of police personnel to arrest the accused outside the GDEX office in Kuching. ii) On the morning of 12.5.016, PW6 received information that a parcel by the consignment number 4910730366 was about to arrive in Kuching by way of courier service through the GDEX office. PW6 then positioned himself and his men around the office. iii) PW6 saw the accused came and entered the GDEX office. He recognized the accused as he had on a separate occasion in the past, arrested the accused. iv) At around 11.00 am, PW6 saw the accused came out of the office holding a box in his hand and walking towards a car parked in the nearby parking lot in front of the GDEX office. v) PW6 approached the accused from the back and upon tapping on the accused’s shoulder, he introduced himself as a police officer. vi) When the accused realized his presence, the accused immediately threw the box to the ground. The accused looked frightened and resisted the arrest, and as a result, a minor scuffle ensued before the accused was arrested. 4 vii) Upon arresting the accused, PW6 found that the consignment number that he had received matched the consignment number on the box. However, the accused’s name was not on the box. viii) After the accused was arrested, PW6 then proceeded to open the box and checked the contents of the box at the parking lot in front of the office. ix) PW6 found 16 different types of “Chinese Health Food” packed in plastics wrapped and 3 boxes of “Gula Cube Sugar Prai” which contained crystalline substances that he suspected to be “syabu”. x) PW6 then took the accused with the box back to the Narcotic office, at the Sarawak Police contingent.

At the close of the prosecution’s case, the learned JC found that the prosecution had made out a prima facie case against the appellant. The appellant was called upon to enter his defence.

When called upon to state his defence, the appellant chose to give evidence on oath. 5

The appellant’s defence is that on 12.5.2016, he was approached and restrained from behind by a police (PW6) who was later arrested him after he came out of the GDEX office when he was on his way to his car. He was shocked and surprised at that time and as a result, he dropped the said box to the ground. He denied that he had a scuffle with the police as alleged by the prosecution witnesses. He further stated that after the arrest, he was brought to Sungai Maong Police Station in his car together with three (3) other police officers. The appellant stated that the said box was brought in the police car and that the said box was opened and examined at the Sungai Maong Police Station instead. After that, upon arriving at the IPK Sarawak, although the said box was inspected there, he was not present when the inspection was carried out as he was at the pantry of the office some 24 feet away. In his evidence, he also stated that he collected the said box as instructed by a person named Susanti, a wife to his friend named Ah Ngu for which he would be paid RM200 to pick up and deliver the parcel. The appellant also said that he was supposed to send the said box to Susanti’s house somewhere at Mile 7 and based on previous occasions he was supposed to place the box in a workshop near the house. In his defence also, the appellant had informed the police about the arrangement he had 6 with Susanti and whereabouts of Susanti’s house, but the police did not investigate the matter any further.

The learned JC found that the defendant’s defence was a bare denial and a recent invention which failed to raise a doubt on the prosecution’s case and therefore it follows that the defence was also not capable of rebutting the presumption of trafficking on the balance of probabilities. Hence the appellant was convicted and sentenced to death.

Based on the Petition of Appeal and submissions before us, the issues can be summarized as follows:

The learned JC erred to have found a prima facie case when the prosecutor need failed to prove the essential ingredients of the charge;

Break in the chain of the evidence.

Learned counsel for the appellant submitted that the learned JC had erred in law and in fact in finding the prosecution had proven a prima facie case at the end of prosecution’s case against the appellant when the 7 prosecution had failed to prove the essential ingredients of the original charge within the ambit of maximum evaluation of evidence and which is against the weight of evidence adduced.

On the issue of the prima facie, the learned JC in his judgment has stated inter alia, as follows: “[57] At the end of the prosecution’s case, based on the evidence, I am of the view that the prosecution had proven the element of possession without the need to resort to the presumption under section 37(d) of the Dangerous Drugs Act 1952. In arriving at the finding as above, I have considered the challenge raised by the defence that the act by the accused of throwing the box to the ground, after PW6 approach him cannot be taken as an indication that he knew the contents of the box. It has been decided in numerous cases that the whether a person has knowledge of the things in his custody and control is difficult to be proven by way of direct evidence. It is however, may be inferred from the circumstances of the case. ……………………….. … [59] After having considered the evidence, I am more inclined to agree with the prosecution’s contention that in this case the element of knowledge may be inferred when the accused threw the box to the ground after PW6 introduced himself as police officer and the accused tried to resist the arrest. The evidence showed that he knew something incriminating was in the box. [60] I do not believe that the accused’s action was a natural reaction unless he knew something was not right with the box. … in the circumstances, the accused’s action was consistent with a person who suddenly found himself with an incriminating substance at his disposal, and 8 the only way to distance himself from the evidence was to throw it to the ground and attempt to resist and flee from being arrested.”

We found no reason to disturb the finding of the learned JC.

The evidence shows that from the moment the appellant left the GDEX Express office walking towards his car, he was the only one holding the box and for this reason he had custody and control over the said box during the arrest.

In Emmanuel Kamano v Public Prosecutor [2019] MLJU 342, Abdul Rahman Sebli (now FCJ) states: “[22] As for the factors that the court takes into consideration in determining “possession” (as the word is understood in criminal law), reference may be made to the speech by Lord Pearce in the House of Lords case of R v Warner [1969] 2 A.C. 256 at page 304-306: “If a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents. But can this be rebutted by evidence that he was mistaken as to its contents? As in the case of goods that have been ‘planted’ in his pocket without his knowledge, so I do not think that he is in possession of contents which are quite different in kind from what he believed. Thus the prima facie assumption is discharged if he proves (or raises a real doubt in the matter) either (a) that he was a servant or bailee who had no right to open it and no 9 reason to suspect that its contents were illicit or were drugs or (b) that although he was the owner he had no knowledge of (including a genuine mistake as to) its actual contents or of their illicit nature and that he received them innocently and also that he had no reasonable opportunity since receiving the package of acquainting himself with its actual contents. For a man takes over a package or suitcase at risk as to its contents being unlawful if he does not immediately examine it (if he is entitled to do so). As soon as maybe he should examine it and if he finds the contents suspicious reject possession by either throwing them away or taking immediate sensible steps for their disposal.”

Based on the evidence in the present case, there was no dispute that the drug was found in the appellant’s custody and under his control at the time of his arrest. Therefore, it was clear that the drug was in his possession and that by his action, it was clear he knew the nature of the drug, in this case, Methamphetamine.

It was contended for the appellant that in the present case since the box was inspected in front of GDEX, the police should have made a search list and marked the drugs at the said place instead of carrying the tasks at IPK Sarawak. 10

In evaluating the issue of break in the chain of evidence, the learned JC made finding at the relevant paragraphs: “[30] In respect of this point, PW6 had explained in his evidence when he was cross-examined that although the box was inspected in front of the GDEX office, the place was not suitable to mark the drugs found or to prepare the search list. [32] Given his evidence was not shaken during cross-examination, I do not see any reasons not to accept PW6’s evidence on this point. At this stage, it is also to be noted that the defence had also raised the issue that PW6 had stopped at the Sungai Maong Police Station after the seizure of the box at the GDEX Express and PW10 confirmed this in the cross-examination. [33] After having perused the evidence, I do not find merits on this argument as well. In the re-examination, PW10 had corrected herself by saying her evidence that PW6 had stopped by the Sungai Maong Police Station was a mistake and she was unaware what PW6 had told her. [34] In the circumstances, I accept that based on the facts, PW6 had not stopped at the Sungai Maong Police Station. In the circumstances, I do not find there was a break in the chain of evidence based in these two points as well.”

PW6 had explained in his evidence when he was cross-examined that although the box was inspected in front of the GDEX office, the place was not suitable to mark the drugs found or to prepare the search list. PW6 had 11 explained the steps that he had taken to ensure the box or the drugs were in his custody all the way from the GDEX office to IPK.

The defence had also raised the issue that PW6 had stopped at the Sungai Maong Police Station after the seizure of the box at the GDEX office and PW10 confirmed this in the cross-examination. However, in the re-examination, PW10 had corrected herself by saying her evidence that PW6 had stopped by the Sungai Maong Police Station was a mistake, and she was unsure what PW6 had told her.

Based on the above evidence before him, the learned JC was correct to come to the findings that there was no break in the chain of the evidence.

As to the element of knowledge, it is the appellant’s case that he thought the said box contained tonic foods. He said he was instructed by Susanti via WeChat application whom he has known to sell bird nest, tonic foods and cosmetics. The appellant clearly had no chance to check on the content of the box as it is from the evidence that the said box was sealed and yet to be opened by the appellant in this case. 12

Having considered the appellant’s explanation, the learned JC rejected his defence of no knowledge. It was the learned JC’s finding that the appellant knew about the drug and his reasons are as follows: “83. Based on the above case, the defence of such nature carries little weight. Be that as it may, I will now consider his defence. In his defence, the accused could not provide the address of the house except to mention the locality of the house eventhough he admitted that he had been there on different occasion in the past. He also mentioned that Susanti’s husband is no stranger to him as he had worked with her husband in the past doing odd jobs. He also mentioned that he had been paid with RM200 to pick up and deliver the box. As to the place where he was supposed to deliver the box, he said he had in the past sent the box to Susanti’s house and placed it at a spot in the workshop near the house. He stated in cross-examination the place where he place the box was unguarded.

The prosecution had cross-examined the accused on the defence raised.

His defence in my view is not credible and merely a denial of his involvement with the offence. I find his defence that he was asked by Susanti to pick up the box was an invention to deflect his involvement in the offence. This can be seen in the cross-examination. He was not able to give details of Susanti or the whereabouts of the house where he was supposed to deliver the box. When pressed further in the cross-examination, who he was supposed to deliver the box, he gave a very unconvincing evidence that the box was supposed to be left at an unguarded spot near the house, eventhough he would have been paid RM200 to deliver the box. I do not think, it is a credible story for somebody to pay someone RM200 to deliver 13 a box for such a short distance and then to leave the said box unattended. For the sender, if it is true that he or she has to pay RM200 to deliver a box, the items contained therein must be quite valuable, and it makes no sense for the box to be delivered at a spot where no one would be around to receive it. I think the accused was merely creating a story as he could not explain why or who was supposed to receive the box.”

We agreed with the learned JC that the appellant had actual knowledge over the drug found in the box he was holding. Based on the evidence adduced particularly the conduct by the appellant being frightened and anxious, had a scuffle with PW6 and tried to escape as well as the act of throwing the box on the ground showed that the appellant had knowledge of the content of the box and from the moment the appellant left the GDEX Express office walking towards his car, he was the only one holding the box and for this reason, he had custody and control over the said box during the arrest.

We found no merit in any of the appellant’s complaints. On the totality of the evidence and for the reasons given by the learned JC, we agreed with his finding that the appellant had knowledge of the drug.

Whether or not the appellant knew about the drug is primarily a question of fact and the principle is settled that an appellate court does not 14 readily interfere with findings of fact made by the trial court unless it can be shown that the finding is perverse.

In the present case, there was nothing to stop the appellant from examining the box that Susanti asked him to collect.

We were satisfied that there was no appealable error on the part of the learned JC that warranted our appellate intervention. We viewed the conviction of the appellant was safe. We therefore dismissed this appeal and affirmed the order of the High Court. Dated 17 July 2020 Signed HANIPAH BINTI FARIKULLAH Judge Court of Appeal Malaysia Putrajaya 15 Counsel/Solicitors: For the Appellant: Osman Ibrahim Messrs Osman Ibrahim & Co. Advocates Lot 262, 2nd Floor Section 9 Jalan Satok, 93400 Kuching