Lee Sheue Ning v Pendakwa Raya (P-05(M)-453-10/2022)

Lim Teck Hock (NRIC No.: 600913-01-6269)

Lee Sheue Ning (NRIC No.: 921215-01-6170)] CORAM: HADHARIAH BINTI SYED ISMAIL, HMR AZMAN BIN ABDULLAH, HMR AZMI BIN ARIFFIN, HMR JUDGMENT OF THE COURT INTRODUCTION [1] There are four (4) separate appeals before this Court emanating from the decision of the High Court dated 27.09.2022 in convicting and sentencing the Appellants for the offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 [Act 234] ("the DDA"). [2] At the High Court, there were two (2) cases heard together which were Criminal Trial No. PA-45A-30-06/2019 and PA-45A-30-06/2019 involving two (2) accused as follows:

Lim Teck Hock (No. Kad Pengenalan: 600913-01-6269) ("the First Accused"); and

Lee Sheue Ning (No. Kad Pengalan: 921215-01-6170) ("the Second Accused"). [3] At the conclusion of the trial, the learned High Court Judge found both Appellants guilty as per the charges and ware sentenced to death by hanging. Aggrieved with the conviction and sentence, the Appellants now appealed to this Court. We heard the appeals on the 22.11.2023. At the conclusion of the submissions, we dismissed the Appellants' appeal on conviction but we allowed the appeals on sentence. We now provide our reasons for the decision. THE PROSECUTION'S CASE [4] Both Appellants were charged at the High Court as follows: In Criminal Trial No.: PA-45A-31-06/2019 "Bahawa kamu bersama-sama pada 1.11.2018 jam lebih kurang 3.20 pagi di sebuah rumah beralamat 113-12A-12B Gold Coast Resort Persiaran Bayan Indah 11900 Bayan Lepas, di dalam Daerah Barat Daya, di dalam Negeri Pulau Pinang, bagi mencapai niat bersama, telah mengedar dadah berbahaya jenis Heroin dan Monoacetylmorphines seberat 77.8 gram. Oleh itu, 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 dan dibacakan bersama Seksyen 34 Kanun Keseksaan." In Criminal Trial No.: PA-45A-30-06/2019 "Bahawa kamu bersama-sama pada 1.11.2018 jam lebih kurang 3.20 pagi di sebuah rumah beralamat 113-12A-12B Gold Coast Resort Persiaran Bayan Indah 11900 Bayan Lepas, di dalam Daerah Barat Daya, di dalam Negeri Pulau Pinang, bagi mencapai niat bersama telah mengedar dadah berbahaya jenis Methamphetamine seberat 1517.3 gram. Oleh itu, 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 dan dibacakan bersama Seksyen 34 Kanun Keseksaan." [5] The prosecution's case was established by the evidence of 13 witnesses and accepted by the learned High Court Judge. The brief facts of the case which we put in a nutshell is that on 01.11.2018 at around 3.20 a.m., Inspektor Shamsul Safri (SP10) and together with his team from Jabatan Siasatan Jenayah Narkotik Bukit Aman went for special operation which they had raided a house situated at 113-12A-12B Gold Coast Resort, Persiaran Bayan Indah, 11900 Bayan Lepas, Pulau Pinang ('the Premise'). When they arrived at the premise, SP10 had ordered member of the raid team to break the grill and front door. [6] Subsequent to that, they had entered into the Premise and went to the master bedroom which they found one Chinese man (the First Accused) and one Chinese woman (the Second Accused) lying on the bed. SP10 introduced himself and continued to search the room. SP10 had found two (2) bags in the closet as follows:

one (1) white bag written "SUNSHINECARD" (exhibit P14); and

one (1) pink bag written "LOVELY BEAR" (exhibit P15) [7] Upon examination of Exhibit 14, it contains one (1) transparent plastic packet containing white substance of suspected heroin (exhibit P14(A)) and 4 pink/green plastic packages with a star pattern each containing white lumps of suspected heroin (exhibit P14(B) to P14(E)). Exhibit 15 was found to contain one (1) plastic packet of Chinese tea written "Qing Shan" containing powder/crystal lumps suspected of syabu (type drug) (exhibit P15(A)) and 8 transparent plastic packets each containing powder/crystal lumps of also suspected syabu (exhibit 15(B) to P15(I)). [8] SP10 then had handed over the two accused together with the siezed items to Inspector Muhammad Izwan, the Investigating Officer (SP13) for further action. The seized items include three (3) toothbrushes (exhibits P8H(1), P8I(1) and P8J(1)) from the bathroom of the main room and 4 pieces of clothing (exhibits P22G, P22H, P22I and P22J) from the wardrobe in the same room which was seized later by SP13. The seized toothbrushes and clothes were sent for DNA analysis and through the Chemical Report (DNA) (exhibit P7) by the Chemist, Chan Xin Yi (SP1), showed that DNA profiles of both the accused matched with the seized items. [9] While the seized items which are suspected of being drugs were sent by SP13 to the Chemist, Khairuzzaman bin Mustafa (SP2), for analysis. Based on the Chemical Report (Drugs) in exhibit P11 which was prepared by SP2, SP2 confirmed that the seized items contain dangerous drugs such as heroin, monoacetylmorphines and methamphetamine listed in the First Schedule of the DDA. [10] For the complete facts on the investigation by the police, we respectfully relied on the grounds of judgment by the learned High Court Judge. FINDING OF THE LEARNED TRIAL JUDGE [11] At the end of the prosecution case, the key findings of the learned trial judge are best summed up as follows:

Having examined the oral testimony and written statement of SP2 together with the Chemical Report in Exhibit P11, the High Court found that the suspected drugs were heroin, monoacetylmorphines and methamphetamine as listed in the First Schedule of the DDA. The evidence of SP10 and SP13 clearly showed that the drugs seized by SP10 at the Premise were the same drug that had been handed over to SP13 and then to SP2 for analysis. Thus, the type, weight and identity of the drugs have been proven by the Prosecution.

The High Court Judge was satisfied after having considered the evidence: (a) the two accused were in bed together in the room during the raid; (b) there is no evidence of access by other persons to the room; (c) there were clothes of both accused seized from the room; and (d) there are DNA traces of the two accused on the exhibits P8D(1), P8G(1), P8H(1), P8I(1) and P8J(1) taken from the room, and only the two accused had access to the room.

The High Court also found from the evidence that: (a) both exhibit bags P14 and P15 containing drugs were found in the room; (b) the two bags were found in the wardrobe at the place marked X in exhibit P16(13) and (14); (c) the two bags were in the same section where there were the clothes of the two accused; (d) the condition of the bag is exposed and unzipped; and (e) the fearful reaction of the two accused during the inspection by SP10, showing that the two accused had knowledge and control or custody over the two bags and the their content.

The absence of DNA evidence on bags and drugs packages and also CCTV footage did not affect the prosecution's case because they are only corroborative.

The High Court found that the Prosecution has successfully proved the elements on possession of drugs against both accused as per the charges and therefore the presumption of drug trafficking under section 37(da)(iiia) and (xvi) of the DDA has also been successfully raised against them.

The High Court was also satisfied that there is a common intention between the two accused in committing the offense as per both charges.

The prosecution has successfully established prima facie case against both the accused in the First Charge and the Second Charge. Accordingly, both accused were ordered to enter their defence. [12] The defence raised by both the accused were as follows:

The Premise were accessed by "Raymond" and "Weeson" for a period of 2 weeks before both accused moved into the Premise on or about 28-29 October 2018. Though tenancy agreement was dated 8.10.2018, it was then occupied by friends of the First Accused i.e. Raymond Neoh and Weason Lim up until both appellants moved in.

"Raymond" and "Weason" have duplicated the keys and access cards for the Premise.

The two bags containing drugs belonged to "Raymond". Personal belongings of both Raymond and Weason were also left in the Premise but were not seized by the police;

Even though the two accused lived in the main room but the clothes in the closet did not belong to them

The two Accused did not know the content of the two bags because they were zipped.

The Second Accused first saw the bags when SP10 removed them from the main bedroom wardrobe. [13] At the end of the defence's case, the learned High Court Judge was of the view that the testimony of the two accused regarding "Raymond" and "Weeson" could not raise reasonable doubts against the Prosecution's case. It was also the learned High Court Judge's view that the defence failed to rebut the presumption of trafficking under section 37(da)(iiia) and (xvi) of the DDA for both the charges. In addition to that, both the accused failed to raise doubt as to their common intention under section 34 of the Penal Code in committing the offence. [14] Hence, the learned High Court Judge found that the Prosecution had proved the case beyond reasonable doubt against both accused under both charges. THIS APPEAL [15] Before us, the appeal was argued mainly on the following grounds:

the evidence proves that others also had access to the said unit at the time of arrest; and

the failure of the learned High Court judge to negate the involvement of Raymond and Weason. [16] Counsel for both the Appellants/accused submitted that it is unsafe to find that both accused were the only tenants of the premise at the time of arrest and to find that the drugs belongs to them with the exclusion of others. The counsel relied on the following reasons:

The presence of an unidentified dna profile from the report in Exhibit P7.

The evidence of the raiding office [SP10] that checks on all 3 rooms in the said unit confirms that they were occupied at that time.

There were clothes hung in the cupboard which were not recovered by the police. The owners of these clothes were said to be unknown.

The owner of the Premise, SP5, was unable to identify both accused as the tenants who rented the said house nor were the one who signed the tenancy agreement. SP5 even testified that no access cards were required in the lifts of the said premise. SP5 also confirmed that there were previous tenants to the said unit.

No CCTV recordings or prints screens were tendered showing anyone carrying both bags containing drugs found in the cupboard in the said unit on the 12th floor.

The forensics officer, SP9 were unable to detect fingerprints of both accused at the premise.

The fingerprints from the drugs packages did not belong to either the accused.

Though both appellants were shocked and scared during the arrest, the raiding officer SP10 confirms that this is a normal reaction when your bedroom is raided. [17] The learned counsel of both the accused further contended that Raymond and Weason were arrested in Jelutong Report 7244/18 in which their photos were shown to both accused. Therefore, since Raymond and Weason arrest was said to be related and connected the factual matrix and defence of both the accused, the counsel submitted that both Raymond and Weason should have been offered or called to negate the defence of the accused. Since neither were offered to the defence nor called by the prosecution, failure to do so leaves the defence unrebutted and falls short of proving the case beyond reasonable doubt. This was said to invite an adverse inference against the prosecution. There were also two (2) sworn version of events lingering and unresolved which the defence submitted that the defence's sworn version must be negated. Therefore, the benefit of the doubt should be given to both the accused and adverse inference be raised against the prosecution under Section 114[g] of the Evidence Act 1950. In this regard, the defence counsel relied on the case of Public Prosecutor v. Chia Leong Foo [2000] 6 MLJ 705, PP v. Raja Sharif [2009] 1 LNS 509 and the case of PP v. Iskandar Mohammad Yusof [2006] 6 CLJ 379. [18] The public prosecutor, on the other hand submitted that based on the evidences before the Court, the prosecution had successfully proved the case beyond reasonable doubt. The Appellants have control and custody over the drugs as well as having knowledge of their existence and an inference can be made that the Appellants have possession against the drugs. [19] It was submitted further that SP13's testimony has supported that the accused had occupied the premise before the raid based on the confiscation of the document "work completion advice form SN: A370396" by SP13 in master bedroom which stated the date of completion by TIME communication company was on 17.10.2018 and this form was signed by the First Accused. [20] The prosecutor also submitted that even though the defence evokes the existence of other occupants who live in the premise before the raid, but from the evidence of SP13 which was based on his investigation, there was no other occupants nor the nominees "Raymond" and "Weason" who live in the premise. In addition, SP12's testimony also supports that an inspection of another room was made and it was found that there were no traces of other occupants. Evidence by SP9, SP10, SP3 and SP13 were also clear and consistent stating that clothes seized by SP13 were in the same closet where the bag containing drugs were found. [21] On the issue of unidentified DNA profile, the learned public prosecutor submitted that although SP1 states that there is a mixed profile of minor contributors which cannot be conclusively identified and there are case items that where the DNA profile is weak/inconclusive for comparison DNA, it just means that the DNA profile is not enough for making comparisons or incomplete for interpretation and instead of meaning the existence of other occupants/third parties who occupy the premise. [22] On the failure of SP5 to identify both accused, it was submitted by the prosecution that SP4 as a home agent who manages the rental between both the accused with SP5 has positively identify the them and confirm the house was rented to both the accused and rental agreement in the name the Second Appellant since 08.10.2018. [23] Furthermore, it was also submitted by the learned prosecutor that the drugs weighing 77.8 grams & Methamphetamine weighing 1517.3 grams certainly not for personal use. The total weight prove that it is for distribution purposes and in fact the packaging were intended to facilitate distribution and indicates it is for commercial purposes. OUR DECISION [24] The crux of the Appellants' argument is that on the issue of control and custody over the drugs whereby their contention was that there were other persons who have access to the Premise (i.e. Raymond and Weason). We have considered this but we find that the prosecution had proved the case beyond reasonable doubt. From the evidence of the Prosecution witnesses, namely SP12 and SP13, shows that there were no other occupants in the Premise. [25] Not even that, SP4 also had positively identify and confirm that the Premise was rented to both the accused and rental agreement in the name of the Second Appellant since 08.10.2018. Thus, this is not the case where the Appellants only has momentary custody of the bags full of drugs. Both the Appellants live in the Premise with the bags in their control and custody. It is difficult for us accept the Appellants' defence that the bag belongs to other occupants when the bag itself was found in their own room and in the closet that they kept their personal belongings. [26] In the circumstances, we are of the view that the Appellants had failed in their defence about the existence of Raymond and Weason. We are guided by the decision of the Federal Court in the case of Sathya Vello v Public Prosecutor [2022] 4 MLJ 111 which held as follows: [96] But the rule does not apply where a statute presumes a fact 'unless the contrary is proved'. Thus, where statutory presumptions such as the ones in s 37(d) and s 37(da) of the DDA come into play, it is not sufficient for the accused to merely cast a reasonable doubt in the trial court's mind as to whether or not the presumed facts exist. The accused must affirmatively prove by admissible evidence that the presumed facts do not exist, and the standard of proof is the civil standard of proof, ie proof on the balance of probabilities: see Public Prosecutor v Yuvaraj. In Miller v Minister of Pensions [1947] 2 All ER 372 Lord Denning explained what constitutes sufficient discharge of the burden of proving a case on the balance of probabilities: If the evidence is such that the tribunal can say 'We think it more probable than not' the burden is discharged, but if the probabilities are equal, it is not." [27] From the facts of these appeals, we find that the Appellants failed to show the admissible evidence regarding the existence of Raymond and Weason. It comes to our mind that how the subsequent tenant can actually know about the previous tenant. We have also perused the Jelutong Report 7244/18 (see Record of Appeal Vol.3 in Encl. 19 at page 111.pdf), and we only find Weason's name in that report without Raymond. Interestingly, the report was about the arrest of few names on 01.11.2018 at the address located at No.21 Changkat Minden Jalan 2, 11700 Gelugor Pulau Pinang. So, the only coincidence here is that both the Appellants and the person names Weason were arrested at the same date. But this fact is not enough to show that the drugs found with the Appellants at the Premise belongs to Weason. [28] Based on the aforesaid reasons, we find that the learned High Court judge did not fall into error in the event he negated the involvement of Raymond and Weason. As such, the learned High Court Judge was correct in his finding that the defence failed to cast doubt with regard to the presumption of drug trafficking under section 37(da)(iiia) and (xvi) of the DDA. [29] Having perused the appeal records, the grounds of judgement of the learned High Court Judge and the submissions by parties both oral and written, we unanimously find that there is no merit in the Appellants' appeals on conviction. There is no reason for us to disturb the finding by the learned High Court Judge. We find that the learned High Court Judge was correct in his finding that a prima facie case was established by the prosecution at the end of the prosecution case and that the prosecution had successfully proven its case against the appellants beyond reasonable doubt at the conclusion of the trial. We are also of the view that based on the settled principles of law on common intention, there was sufficient evidence to infer common intention of both the appellants. Hence, the decision of the learned High Court Judge in convicting the appellants on the charges read with section 34 of the Penal Code was not wrong. [30] Therefore, all appeals on conviction are hereby dismissed. [31] With regard to the sentence, following the abolishment of s 39B(2A) of the DDA by the Abolishment of Mandatory Death Penalty Act 2023 [Act 846], the court is no longer bound only by the conditions stated in that provision to pass a sentence of life imprisonment. Since we are of the view that these appeals before us are not exceptionally serious and outweighed the mitigating factors, we find that life imprisonment and whipping should be the preferred sentence. According to section 3 of the Criminal Justice Act 1953 [Act 345] which was amended in 2007, where any person is treated as having been sentenced or is hereafter sentenced to imprisonment for life, such sentence shall be deemed for all purposes to be a sentence of imprisonment for thirty years. This provision, when read together with section 15 of Act 846, allows this Court to impose sentence of not less than 30 years and not more than 40 years. CONCLUSION [32] It was for all the reasons above stated that we dismissed both the Appellants' appeal and affirmed the conviction. We agree to set aside the sentence to death by hanging imposed by the High Court. We sentence the Appellants with 30 years imprisonment for the first charge and also 30 years imprisonment for the second charge. Both sentences to run concurrently. Pursuant to section 289 of the Criminal Procedure Code, it provides that females, males sentenced to death and males above the age of 50 shall not be whipped. -sgd- (AZMAN BIN ABDULLAH) Judge Court of Appeal Malaysia Putrajaya Date of Decision : 22 November 2023 Grounds Issued : 6 June 2024 Legal Representation For the Appellant : Hussaini bin Abdul Rashid [Messrs Hussaini & Co. (Penang)] For the Respondent : Mohd Fuad bin Abdul Aziz [Attorney General's Chambers]