Subparagraph
(vi) The trial judge misdirected himself on the law and the facts on the issue of common intention on the part of the appellants. Our deliberation and decision The issue of the appellants’ conduct in running away when the police raided the house [14] Counsel for the appellants submitted that the trial judge misdirected himself in giving too much weight to the appellants’ conduct in attempting to run away from the house. On this issue, firstly, the appellants’ conduct in fleeing from the scene is admissible under section 8 of the Evidence Act 1950 as their conduct of running away from the police has a direct bearing on the fact in issue as the drugs were found in the said house. In this regard, the appellants has to explain their conduct as required by section 9 of the same Act. This has been lucidly explained by the Federal Court in Parlan bin Dadeh v PP [2008] 6 MLJ 19 as follows: “[39] In this case, the reaction of the appellant in looking stunned or shocked upon being approached by the police is clearly admissible under s 8 since it has the direct bearing on the fact in issue as the drugs found were tucked away in the front of the jeans worn by him. The explanation for his reaction must therefore be offered by he himself as required by section 9. The court cannot, on its own, offer an explanation for his reaction. However, in his defence, the appellant did not offer any explanation at all for his reaction upon being approached by the police. It can be validly used as evidence against him. The inference to be drawn from the evidence of conduct of the appellant against 10 the background of the other evidence is that he knew what he was carrying (see Deputy Public Prosecutor v Brooks).” (emphasis added) [15] Further, in another Federal Court case of Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113, the issue of conduct was dealt with in the following manner: “[17] Whilst the conduct of the accused fleeing the scene may be a relevant factor to be considered, such conduct however must be weighed against the circumstances of the case. This is because even an innocent man may feel panicky and try to evade arrest when wrongly suspected of committing a crime. It is a common instinct of self-preservation. ….. [20] Based on the above s. 8(2) of the Evidence Act 1950, there are two types of conduct which is relevant, namely prior and subsequent conduct. Evidence of conduct is an equivocal act and is capable of more than one interpretation. Accordingly, evidence of conduct must not be referred to in isolation. Instead, conduct must be considered with other evidence or circumstances. (emphasis added) [16] Reverting to the present case, we find, the learned trial judge was correct in assessing the appellants’ conduct of running away from the police, together with other evidence before him in order to make a finding as to the significance of the said conduct. Assessment has to be made by the trial judge as to whether the conduct of fleeing from the scene was due to pure panic, being afraid of armed men raiding the 11 house or because the appellants knew about the drugs in the house. Here the trial judge has made his findings of fact that the appellants’ conduct in running away from the house showed that they have knowledge of the drugs in the house. In the grounds of judgment, at paragraph 50, the trial judge said this: “50. …Semasa diserbu polis, Tertuduh 1 dan Tertuduh 2 melarikan diri ke bahagian dapur. Daripada “conduct” mereka ini menunjukkan mereka ada pengetahuan mengenai dadah-dadah berbahaya tersebut (rujuk keputusan kes Parlan Dadeh v PP (2009) 1 CLJ 717). Mereka tidak perlu melarikan diri kerana SP10 telah memperkenalkan diri sebagai polis sebelum rumah itu dipecah masuk. Oleh itu, Mahkamah membuat dapatan secara affirmative bahawa kedua dua Tertuduh mempunyai milikan ke atas rumah tersebut dan dadah berbahaya tersebut pada masa material. “ [17] Here, based on the evidence before him and having assessed the credibility of the witnesses, the trial judge had made his finding that the appellants’ conduct in running away together with the other evidence, pointed to the fact that they have knowledge of the drugs in the house. On the same issue, it is also instructive to make reference to a Federal Court case of Samundee Devan Muthu al Kerishnan v PP [2010] 3 CLJ 269 where Mohd Ghazali Yusoff FCJ said this: “[15] We also of the view that the contemporaneous conduct of the appellant in attempting to run away when PW7 identified himself as ‘police’ is relevant and admissible pursuant to s.8 of the Evidence Act 1950 under the circumstances of the instant appeal. Such conduct, of course not to be taken in isolation but together with all the other circumstances of the case. That would be the correct approach to circumstantial. (see Chan Chwen Kong v PP [1962] 1 LNS 22) 12 .. [17] We find the evidence adduced by the prosecution before the learned trial judge showed that the appellant was clearly in possession of the plastic packages and that he had knowledge of the contents of the packages. The facts denote the said dangerous drugs were in his custody and control. He was in possession of a set of keys one of which was used to open the boot of the motorcar in which the dangerous drugs were found. He was clearly aware of the packages when he was approached by the police and consequently attempted to run away. The combined strength of these facts gave rise to a strong inference that the appellant had mens rea possession of the packages containing the dangerous drugs and he had knowledge of the dangerous drugs. There was evidence of possession of the dangerous drugs independent of s. 37(d) of the Act.” (emphasis added) [18] Likewise in the instant case, the strength of the established facts give rise to a strong inference that the appellants had knowledge of the impugned drugs in the house. The trial judge had correctly carried out his duty in assessing the evidence including the conduct of the appellants before he came to his decision. As such, we find, there was no misdirection by the trial judge on this issue. [19] In relation to this, it is also trite law that the appellate court should be slow in disturbing the finding of fact by the trial judge based on credibility of witnesses and who had the advantage of seeing and hearing the witnesses unless the trial judge had wrongly evaluated the facts. (see Amri Ibrahim & Anor v PP [2017] 1 MLJ 629 (FC), Tan Kim Ho & Anor v PP [2009] 3 CLJ 236 (FC)) 13 [20] The Federal Court in Lee Ah Seng & Anor v PP [2007] 5 CLJ 1 has also dealt with the same issue and held as follows: “the approach to be taken by the appellate court when dealing with a trial court’s assessment of credibility of witness is well established by high authorities. The credibility of a witness is primarily for the trial judge. An appellate court should always be slow in disturbing such findings of fact arrived at by the judge who had audio-visual advantage of the witness, unless there are substantial and compelling reasons for disagreeing with the finding.” (emphasis added) [21] In the instant case, there is no substantial or compelling reasons for this court to interfere with the finding of fact by the trial judge with regards to the conduct of the appellants in fleeing from the scene. The trial judge’s assessment of SP5’s evidence [22] In regard to this issue, counsel for the appellants contended that the trial judge erred in giving too much weight to the evidence of SP5, in particular that she rented a room from the 2nd appellant. This is due to the fact that the house was rented to a person name Chong Yiew Cheing by its owner, SP4 and as such, the room could not have been rented to SP5 by the 2nd appellant. 14 [23] The fact that SP5 rented the room from the 2nd appellant is crucial to show that the 2nd appellant had the control or is an occupier of the house and would also demolished the defence that the appellants were only present in the house on the day of the incident which was on 9.9.2013 as a guest to Ah Chong. In her evidence, SP5 unequivocally said that she rented the room from the 2nd appellant with the monthly rental of RM500. She rented the room to place her product including slimming product and as a place to rest when she delivered the product to her customer in Kuala Lumpur. She stays in Taiping, Perak and usually stayed in the room about 6 days a month. [24] Having perused the evidence of SP5, particularly the evidence through cross-examination, we find that the fact that SP5 rented the room from the 2nd appellant was not challenged by the defence. The defence only suggested to SP5 that she was the main tenant of the house which she denied. In her evidence, upon being questioned by the defence counsel, she answered as follows: “Q: Setuju, oleh kerana kamu penyewa bilik itu kamu adalah penyewa utama? A: Tidak setuju. Q: Cadangan, kamu tidak perlu sewa bilik itu kerana kamu ke situ 6 kali sebulan? A: Saya sewa bilik itu kerana ada aircon. Q: Stok itu kamu letak di mana dalam rumah? A: Dalam luggage pakaian saya.” 15 [25] The failure to cross-examine SP5 on the crucial fact that she rented the house from the 2nd appellant amounting to the acceptance of SP5 testimony in regard to the said fact. (see Wong Swee Chin v PP [1981] 1 MLJ 212). This fact also supported the finding of the trial judge that the appellants’ defence was an afterthought. [26] Further, the trial judge had also made his finding that SP5 rented the room from the 2nd appellant with monthly rental of RM500. In his grounds of judgment at paragraph 24, he said this : “24. SP5 adalah seorang perempuan China yang menyewa sebuah bilik di rumah tersebut dari tertuduh 2 dengan bayaran sewa RM500 sebulan. Dia tiada pengetahuan mengenai dadah yang dirampas di rumah tersebut di bahagian bawah di ruang tamu.” [27] Here, we have no reason to interfere with the trial judge’s finding of fact as it was supported by evidence and had evaluated the facts correctly especially in the absence of any challenge on the crucial fact as alluded to earlier. In the circumstances, the contention by the defence on this issue is without merit. The serious lapses in the police investigation [28] On this issue, counsel for the appellants raised several reasons to support the contention of lapses in the investigation which were, failure on the part of the police to conduct chemical examination on the 16 slimming tea found in PW5’s bag, failure to locate Ah Chong and failure to locate SP5 for the purpose of recall by the defence. [29] As to the slimming tea found in SP5’s bag, SP10 has explained that the tea were in the form of sachet (“uncang”) and totally different from the packets that contained crystalline substances that were found in the hall of the house. Hence, SP10 did not confiscate SP5’s bag which contained the said tea. Consequently, the issue of not conducting any chemical examination on the slimming tea does not arise or affects the prosecution’s case. [30] Next, the Investigating Officer had taken all the necessary measures to locate Ah Chong or his full name Chong Yew Chieng, including, with the help of other government agencies as reflected in his witness statement. However, his attempt was unsuccessful. In any event, the prosecution only need to prove possession of the drugs by both the appellants and not the ownership or the tenancy of the house. In this regard, it is of assistance to refer to the oft-quoted case of Chan Pean Leon v PP [1956] 1 MLJ 237 which explained the meaning of possession in the following words: “‘Possession’ itself as regards the criminal law is described as follows in Stephen’s Digest (9th Ed page 304): A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as the owner to 17 the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in the case of need.” (emphasis added) [31] Further, both appellants were in close proximity with the drugs as the drugs were found at the hall of the said house. In fact, both appellants in their testimonies confirmed that they saw the packets at the hall when they entered the house. Here, close proximity of the appellants with the drugs is a fact that can establish actual possession of the drugs. This court in the case of PP v Karim AB Jabar [2008] 5 CLJ 173 has the occasion to deal with this issue and opined as follows: “[4] …. The proximity of the respondent to the drugs at the front passenger seat is a fact relevant to establish actual physical possession. [5] In Public Prosecutor v Foo Jua Eng [1965] 1 LNS 137, the accused was charged with assisting in carrying on a public lottery. The evidence showed that the accused had been found by the police in a room, seated about three feet away from a dressing table on which the relevant exhibits were found. The Magistrate acquitted the accused. The prosecution appealed. In allowing the appeal, Raja Azlan Shah J (as His Royal Highness then was) said this: “With regard to the mental element, the learned Magistrate rightly directed his mind that knowledge or consciousness would depend on the surrounding circumstances. However, he failed to direct his mind adequately on the facts. He directed his mind to the circumstances when the respondent tried to close the door on the PW1. But he failed to consider the other circumstance which, taken together, may well be that 18 the element of possession was proved. The circumstance is the physical proximity of the respondent to the exhibit in question. [6] So too here, the learned judge having accepted the prosecution’ evidence as to the finding of the drugs, the identification of the police officer and the scuffle, failed to direct himself as to the proximity of the drugs to the respondent. Indeed, nowhere in his judgment, did the trial judge address his mind to this fact. There is the added circumstance that the respondent was driving the car from one point to another with the proscribed drugs in it.” (emphasis added) [32] Clearly, premised on the established facts in the present case as alluded to earlier, the learned trial judge was correct in his finding that actual possession of the drugs by the appellants had been established by the prosecution. [33] In addition, the failure to locate SP5 for further cross examination by the defence is not fatal to the prosecution’s case nor prejudice the defence. The defence was given ample opportunity to cross-examine SP5 which they did extensively and in the present case after re-examination of SP5 was concluded and upon request made by the defence counsel, the defence was again given another opportunity to cross-examine SP5 on his monthly income. [34] In the circumstances, we are of the view that there was no lapses in the investigation of the present case by the police and the prosecution 19 had established its case beyond reasonable doubt without any gaps that affect its case. The issue of double presumptions [35] In relation to this issue, counsel for the appellants submitted that in reading the grounds of judgment of the trial judge it would appear that the trial judge had applied both the presumption of possession under section 37(d) and the presumption of trafficking under section 37(da) of the DDA at the close of the prosecution case and this is illegal. [36] Having read the trial’s judge grounds of judgment, we disagree with this contention. The trial judge had clearly made an affirmative finding of actual possession of the drugs by the appellants and thereafter had invoked the presumption of trafficking under section 37(da). This is reflected in the grounds of judgment at paragraphs 50 and 51 as follows: “50. .. Oleh itu, Mahkamah membuat dapatan secara affirmatif bahawa kedua-dua Tertuduh mempunyai milikan ke atas rumah tersebut dan dadah berbahaya tersebut pada masa material.