Leong Kwang Yew v Pendakwa Raya (S-05(SH)-371-09/2023)

The Appellant was charged with trafficking 213.58 grams of methamphetamine.

The charge was framed in the following manner: “That you on the 11.9.2018 at about 8.30 pm located at B-02-GC, 2/F, Block B, Jesselton Condominium, Jalan Bersatu did on your own behalf traffic in a dangerous drug to wit 213.59 grams of Methamphetamine and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under Section 39B(2) of the same Act”

At the trial, the Respondent/prosecution called 9 witnesses, while the Appellant testified on his own behalf and also called 1 other witness, his daughter (DW2).

At the end of the trial, the Appellant was convicted as per the charge. He was sentenced to life imprisonment, which is 30 years’ imprisonment under section 3 of the Criminal Justice Act 1953 and section 57 of the Penal Code. The sentence was ordered to take effect from the date of the Appellant’s arrest on 11 September 2018.

The Appellant was also sentenced to undergo 5 strokes of whipping, notwithstanding section 39B(2) of the Dangerous Drugs Act 1952 which prescribes a minimum of 12 strokes of whipping. The prosecution thus lodged an appeal against the sentence.

All references are to the appeal against conviction, save in the conclusion where we deal with the prosecution’s appeal against sentence.

On 11 September 2018, at about 640pm, acting on a tip-off, Insp Mohd Zulfadli Bin Abd Rashid (PW2) led a team of police personnel and arrested the Appellant and one other individual at the Zing Bar at the Imago Mall in Kota Kinabalu. A Watsons bag purportedly containing drugs was seized. The contents are not the subject matter of the charge.

The Appellant and the other individual were then brought to IPD Kota Kinabalu for further investigation.

According to ASP Samsualan Bin Samsudin (PW5), he had administered the statutory caution under the Dangerous Drugs Act 1952 to the Appellant, while at IPD Kota Kinabalu in the following manner: “Adalah tanggungjawab saya untuk memberi amaran kepada kamu bahawa kamu tidak perlu menjawab ataupun menjawab apa-apa soalan yang saya berikan tetapi apa-apa keterangan ataupun jawapan yang diberikan oleh tertuduh akan dijadikan sebagai keterangan”.

The learned trial Judge (“LTJ”) found that PW5 had administered the caution as the words were reproduced in the police report (exhibit P19), a contemporaneous document, and the Appellant understood what was said with the assistance of Lance Corporal Te Cang Xiong (PW7).

After the caution had been administered, the Appellant was asked: “Ada apa-apa barang salah lagi?” to which he replied: "Ada lagi syabu di rumah kondo saya Kawasan Damai".

At about 8.10pm on the day of his arrest, the Appellant led PW5 and his team to the condominium he rented from Chong Jia Ruey (PW4), that is, Unit B-02-GC, 2/F, Block B, Jesselton Condominium, Jalan Bersatu Damai Luyang, Kota Kinabalu.

The door to the condominium was opened by the Appellant’s wife.

After the raiding team had been introduced as police personnel, the Appellant and the raiding team entered the condominium.

The Appellant led PW5 and his team to the first room of the condominium. He led them towards a bedside drawer cabinet located next to the bed in the said room. He opened the drawer and took one green plastic bag P8 with a big plastic transparent bag (P9A) and a smaller plastic transparent bag (P9B), both containing crystalline substances suspected to be drugs.

The analysis conducted by the chemist Siti Marlindah Jimir (PW1) showed that there was a net weight of 213.59 grams of methamphetamine. She set out her findings in the chemist report marked as P12.

The LTJ accepted PW1’s findings, and was satisfied that the drugs seized by PW5 at the condominium were the same drugs produced at the trial.

At the close of the prosecution’s case, the LTJ took cognisance of the Federal Court’s guidance in PP v Mohd Radzi Bin Abu

(at) the close of the prosecution's case, subject the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinise the credibility of each of the prosecution's witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused;

(ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is 'Yes', then a prima facie case has been made out and the defence should be called. If the answer is 'No' then, a prima facie case has not been made out and the accused should be acquitted…”

The LTJ held that the prosecution had made out a prima facie case at the close of its case, and ordered the Appellant to enter his defence.

The LTJ dealt with the defence that the Appellant’s bedroom was accessible to other persons including two of his staff, Lim Thian Hauw and Joong Yung Hau, who would enter the bedroom to clean the same on a daily basis. Although these workers were not registered with the authorities, they had been introduced to the Appellant by his friends and stayed in another room in the condominium. The Appellant further ran the defence that his family members who stayed in the condominium also had unrestricted access to the room concerned.

Having considered the defence, the LTJ held that “although other people may have access to the bedroom, the nature of where the drugs were kept in the private drawer of the room was such that it situated the accused with the drugs in such manner as to point to his exclusive possession of the same. There was nothing to suggest that other occupants of the condominium routinely kept their personal effects in the accused's bedroom and drawer.”

At the end of the trial, the LTJ found “no reason or evidence to suggest that the police would want to frame the Accused in this case. Given the Accused's cautioned statement and the absence of any evidence in rebuttal there is nothing for this court to disbelief (sic) the version of the prosecution in this case as to the events while the section 37B caution was being administer and as to the events in the bedroom.”

In the upshot, the LTJ “found that the Accused was in actual possession of the drugs which has been analysed and confirmed to be methamphetamine being "dangerous drugs" of a weight of 213.59g both as provided in the Dangerous Drugs

Having made a finding of actual possession, His Lordship then followed the decision of the Federal Court in Zulkifli Arshad [2010] 6 CLJ 121 and invoked the statutory presumption of trafficking under section 37(da)(xvi) of the Dangerous Drugs Act 1952.

His Lordship concluded, on the evidence, that the Appellant had failed to rebut the presumption of trafficking.

The prosecution was held to have proved its case against the Appellant beyond reasonable doubt. Grounds of Appeal, the High Court’s Findings, and Our

Broadly, the Appellant raised 3 grounds in his appeal. See Enclosure 36.

Whether Statutory Caution Properly Administered

First, it was submitted that the LTJ failed to consider that the statutory caution was not properly administered to the Appellant.

It was alluded that since PW5 stated in his police report of 11 September 2018 that he read the caution under section 37A(1)(b) to the Dangerous Drugs Act 1952 to the Appellant, PW5 could not have done so because there is no such statutory provision.

In his witness statement DWSP1, the Appellant averred that he is not fluent in Bahasa Malaysia and could not remember the specific cautionary words by PW5. The Appellant did not expressly deny that PW5 had administered the statutory caution to him.

PW5 clarified that while he referred to a non-existent section 37A(1)(b) in his police report, he should have stated section 37B(1)(b).

Apart from the LTJ finding that the Appellant understood the caution with the assistance of PW7, there was no indication as to which part of the caution or words in the national language the Appellant could not understand. Ho Tze Kean v PP & Another Appeal [2018] 3 CLJ 71 and PP v Tiong Wee Kiet [2018] 7 CLJ 716 are thus to be distinguished on their facts.

The LTJ cannot be faulted for accepting the legal requirements for a statutory caution under the Dangerous Drugs Act 1952 had been met. Indeed, “words to the like effect” are allowed under 37B(1)(b).

It bears repeating that upon being asked “Ada apa-apa barang salah lagi?” after the statutory caution had been administered, the Appellant was able to respond: "Ada lagi syabu di rumah kondo saya Kawasan Damai".

(ii) Whether Others had Access to the Drawer

Next, the second issue raised by the Appellant who argued that the prosecution had failed to exclude the culpability of others who had access to his bedroom, and the drawer where the drugs were found.

We are mindful that the Appellant had denied making the response and leading PW5 and his team to his condominium, and ultimately the bedside cabinet drawer in his bedroom. As noted by the LTJ, there was no evidence that the others who had access to the bedroom routinely kept their belongings in the drawer of the bedside cabinet in the Appellant’s bedroom. The LTJ correctly described the drawer (where the subject drugs were found) as private, since there were personal items found there including a photograph of the Appellant and his wife, and an electricity bill.

It is highly unlikely that the drugs could have been discovered, if not for the Appellant’s response: "Ada lagi syabu di rumah kondo saya Kawasan Damai".

Moreover, the Appellant must have had actual knowledge where the drugs were located. Otherwise, he could not have led PW5 and his team to his bedroom and pointed to the drawer. The appellant then opened the drawer, and took out the plastic bag containing two other plastic bags containing the subject drugs.

Even if one were to discount the Appellant’s incriminating words, the Appellant’s conduct in leading PW5 and his team to the condominium, pointing to the drawer and handing over the drugs kept in plastic packages are evidence of conduct which would be admissible under section 8 of the Evidence Act

Such conduct is not an inadmissible statement. See Ariff Arhannan Bin Che Udin [2022] 4 CLJ 1; [2022] 3 MLJ 157.

It is all too apparent that only someone with prior and actual knowledge could have led the police to the exact and private place where the drugs were kept, together with the Appellant’s personal items.

In addition, reference may be made to the borang senarai geledah (P16), where the plastic bag containing the subject drugs was stated to be found “di dalam almari bilik” and signed by the Appellant and PW5.

On a perusal of the trial evidence, there is no discernible motive for the police, in particular, PW5, to frame the Appellant. They did not even know each other before the Appellant was arrested. It is pertinent to note that in Sri Ganesh A/L Java Balan v. PP and Other Appeals [2022] 2 CLJ 546; [2021] MLJU 2642, Ravinthran Paramaguru JCA (now FCJ) had occasion to hold: "Whilst we acknowledge that frame up of innocent citizens by the police cannot be discounted in some cases, the court must give weight to that defence only on credible evidence that suggests it and not on mere speculation; otherwise prosecution of criminal cases in this country would be frustrated at every turn (see PP v. Mohamed Ali [1962] CLJU 129; [1962] 1 LNS 129; [1962] 1 MLJ 257)."

On a related note, the Appellant argued that the prosecution had failed to call or offer his wife as a witness although she too would have access to the drawer where the drugs were kept.

We find no merit in that argument. The prosecution is not obliged to call the Appellant’s wife, Ho Yen Ling, as a witness because her evidence was not necessary for the unfolding of the prosecution’s narrative for the purpose of proving its case. There was no evidence that her appearance in court had been suppressed. So, no adverse inference is to be drawn under section 114(g) of the Evidence Act 1950. See the decision of the Supreme Court in Munusamy Vengadasalam v PP [1986] 1 MLRA 292; [1987] 1 MLJ 492. See also the decision of the Federal Court in Ghasem Hozouri Hassan v PP [2018] 6 CLJ

133.

In any event, the prosecution could not call or offer the Appellant’s wife as a witness, as she could not be found despite the efforts made to locate her. The prosecution called Insp Abang Nikhafizi (PW8) to give evidence on the efforts made, including the production of an investigation diary (P42).

Similarly, any argument that the workers Lim Thian Hauw and Joon Yung Hau ought to have been called has to be given short shrift. After their arrests, they were detained at Simpang Renggam in Johore under section 6 of the Special Preventive Measures Act 1985. They need not be produced in court since their testimony was unnecessary to prove the charge against the Appellant, considering his own incriminating conduct.

After all, it was the Appellant himself who provided the information about the drugs, led the police to his bedroom in the condominium, and opened the drawer to hand over the drugs to

(iii) Whether Finding was of Actual or Presumed Possession at the Close of the Prosecution’s Case

We now come to the third issue raised by the Appellant.

The Appellant argued that the LTJ failed to specify, when ordering him to enter his defence, whether it was on the finding of actual possession or presumed possession at the close of the prosecution’s case. He professed to be prejudiced because it left him uncertain as to the specific legal burden he had to meet.

If the finding of a prima face case was predicated on actual possession, he would then have to rebut the presumption of trafficking on a balance of probabilities under section 105 of the Evidence Act 1950. But if the finding of a prima face case was predicated on presumed possession, he would only have to raise a reasonable doubt over the element of trafficking.

The Appellant relied on, among other cases, Imran Zakaria v PP [2022] 2 CLJ 396 which in turn relied on Seyedalireza Seyedhedayatollah Ehteshamiardestani v PP [2014] 4 CLJ 406 where the Appellant was found with a trolley bag ('P27') containing 2,849 grams of methamphetamine at the Kuala Lumpur International Airport. The defence was that P27 belonged to one Alizadeh Vahid, another passenger on the same flight as evidenced by the passenger manifest P39A. The Appellant’s explanation was that Alizadeh had already checked in two bags, and would have to pay for the excess weight of P27. Hence, Alizadeh asked him and he agreed to check in the third bag P27 for Alizadeh. On arrival at the Kuala Lumpur International Airport, Alizadeh asked the Appellant to take the bag as Alizadeh was going to the wash room. The Appellant was looking for Alizadeh when he was stopped by SP5 which eventually led to the discovery of the drugs.

The trial judge considered matters which were not in evidence and speculated that the appellant could have picked up a name from the passenger list.

The Court of Appeal also found the findings by the trial judge at the close of the prosecution’s case flawed. In delivering the judgment of the Court of Appeal, Tengku Maimun JCA (as Her Ladyship then was) held that “the learned trial judge had adverted to both presumptions under s. 37(d) and (da) and also to s. 2 of the Act without electing whether the appellant was found to be in actual possession of the drugs and was presumed to be trafficking under s. 37(da) or whether the appellant was presumed to be in possession of the drugs under s. 37(d) and was found to be trafficking under s. 2 of the

It was in such circumstances that the Court of Appeal found “the approach of not electing or making a finding on which presumption that was invoked but by merely relying on the alternative, is most undesirable. It reflects the uncertainty on the part of the trial judge to make a finding. The trial judge ought to make the necessary finding ie, whether it was actual or presumed possession and whether it was presumed or actual trafficking based on the evidence before her. We are further of the view that it is important that such a finding be made as it impacts the burden placed on the defence.”

The material facts of the instant appeal are markedly different.

Although the LTJ did not make a finding as to whether the possession was actual or presumed at the close of the prosecution’s case, he did not make alternative findings - as happened in Seyedalireza (supra) - which may have led to double presumptions at the end of the trial. In fact, the LTJ expressly made a finding of presumed trafficking at the end of the trial, as may be garnered from a perusal of his grounds of judgment. There was only 1 presumption which was applied. The LTJ must have found there to be actual possession, otherwise it would offend the law against double presumptions.

On a separate note, the facts of the case, especially the Appellant’s incriminating statement as well as conduct, were such that actual possession was clear as could be, without any need to invoke a presumption of knowledge, such as when an accused is in custody of a couriered package simpliciter. The Appellant’s statement on the drugs in the condominium, his conduct in leading the police to his condominium, pointing to the drawer, and handing over the drugs to PW5, speak eloquently of actual knowledge.

In fact, the prosecution made it clear at the start of the trial that its case was premised on presumed trafficking under section 37(da) of the Dangerous Drugs Act 1952, as may be discerned from a perusal of the opening speech P3. In other words, it would have to establish actual possession.

The Appellant did not show how he had been prejudiced by the LTJ’s omission to state whether he had to meet a case of presumed trafficking or actual trafficking at the defence stage. See the decision of the Federal Court in Sathya Vello v. Public Prosecutor [2022] 5 CLJ 659; [2022] 4 MLJ 111, paragraphs 57-61 and 74 et seq, which went further. While the decision was set aside on review, there are no full grounds provided by the subsequent panel of the Federal Court.

In the instant appeal, there is no evidence to suggest that the defence took it easy because it thought that only a reasonable doubt need to be raised when a presumption was not invoked. No real or discernible prejudice accrued to the Appellant.

Ultimately, there was no substantial miscarriage of justice. If at all necessary, recourse may be made to section 60 of the Courts of Judicature Act 1964 to affirm the decision of the High Court. Section 60, which was not raised in Seyedalireza (supra), reads: “(1) At the hearing of an appeal the Court of Appeal shall hear the appellant or his advocate, if he appears, and, if it thinks fit, the respondent or his advocate, if he appears, and may hear the appellant or his advocate in reply, and the Court of Appeal may thereupon confirm, reverse or vary the decision of the High court, or may order a retrial or may remit the matter with the opinion of the Court of Appeal thereon to the trial court, or may make such other order in the matter as to it may seem just, and may by that order exercise any power which the trial court might have exercised: Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.”

For the reasons given, we are of the view that there is no merit in any of the grounds of appeal against conviction under section 39B(1)(a) of the Dangerous Drugs Act 1952 which were canvassed before us.

We find the conviction of the Appellant to be safe, and accordingly affirm it.

As for the prosecution’s appeal against the sentence of 5 strokes of whipping, there is merit.

The LTJ fell into error when he passed a sentence in contravention of section 39B(2) of the Dangerous Drugs Act 1952 which prescribes that, where the death penalty is not imposed, the convicted person shall be punished with life imprisonment and “whipping of not less than twelve strokes.” The LTJ’s sentence of 5 strokes of whipping is hereby set aside and substituted with an order of 12 strokes of whipping.

In respect of the sentence of life imprisonment which was ordered to take effect from the date of arrest (11 September 2018) - in lieu of the death penalty – it was an exercise of discretion with which we find no reason to disturb.

To sum up the punishment, the Appellant is to serve the sentence of life imprisonment and undergo the minimum 12 strokes of whipping. Dated the 3rd day of June 2026 (Lim Hock Leng) Judge Court of Appeal, Putrajaya, Malaysia Counsel for the Appellant Dominic Chew [Tetuan P J Perira & Dasan] Counsel for the Respondent DPP Abdul Malik bin Ayob [Jabatan Peguam Negara]