LOKE SEEN YOONG v Pendakwa Raya (W-05(SH)-61-02/2024)

The Appellant was charged before the High Court in Kuala Lumpur with two offences. The first charge is under section 39B(1)(a) of the Dangerous Drugs Act 1952, and the second charge under section 12(2) read together with section 12(3) of the same Act.

The charges read as follows: First Charge “Bahawa kamu pada 23 Julai 2020 jam lebih kurang 7.00 malam, bertempat di kawasan tepi jalan, Jalan Perkasa, Taman Maluri, dalam Daerah Wangsa Maju, di dalam Wilayah Persekutuan Kuala Lumpur, telah mengedar dadah berbahaya Methamphetamine berat 191.6 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” Second Charge “Bahawa kamu pada 23 Julai 2020 jam lebih kurang 7.00 malam, bertempat di kawasan tepi jalan, Jalan Perkasa, Taman Maluri, dalam Daerah Wangsa Maju, di dalam Wilayah Persekutuan Kuala Lumpur, telah didapati memiliki dadah berbahaya iaitu 4.41 gram Methamphetamine dan oleh itu kamu telah melakukan 3 satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 12(3) Akta yang sama”

At the close of the defence case, the learned High Court Judge found the Appellant guilty, convicted the Appellant on the charges, and imposed the following sentences: i. In respect of the first charge, the Appellant was sentenced to 30 years’ imprisonment from the date of arrest. ii. In respect of the second charge, the Appellant was sentenced to one year imprisonment, to run concurrently from the date of arrest.

No sentence of whipping was imposed as the Appellant has attained the age of 53 years at the time the sentence was passed by the learned High Court Judge.

Being dissatisfied with the said decision, the Appellant appealed to this Court.

In brief, the facts of the prosecution’s case are as follows.

On 23 July 2020, at approximately 7.00 p.m., SP1 and his team were at Jalan Perkasa, Taman Maluri, Wangsa Maju. In the course of his observation, SP1 sighted a black Honda Civic 4 bearing registration number WPD 8168, driven solely by the Appellant, which had stopped by the roadside. SP1 confirmed that no person had alighted from the said vehicle throughout the period of his observation.

SP1 and his team then approached the vehicle, whereupon SP1 identified himself as a police officer and requested the Appellant to exit the vehicle. SP1 proceeded to conduct a body search on the Appellant and discovered one packet containing methamphetamine in the front right pocket of the shorts worn by the Appellant (Exh. P9A).

SP1 subsequently conducted a search of the vehicle and recovered a black plastic bag placed on the driver’s side floor mat. Inside the said plastic bag were five plastic packets containing methamphetamine (Exhs. P10 and P11 (1–5)).

SP1 also recovered cash in the sum of RM3,500 together with a Hong Leong Islamic bank card (Exh. P25) from within the vehicle.

Upon analysis, SP4 confirmed that the substances recovered from the driver’s floor mat were methamphetamine weighing 191.6 grammes, while the substance found in the Appellant’s pocket was methamphetamine weighing 4.41 grammes.

Having considered the evidence adduced at trial, the learned High Court Judge found that the prosecution had succeeded in 5 establishing a prima facie case at the close of its case, thereby calling for the Appellant to enter his defence.

In respect of the second charge of possession, the learned High Court Judge found that the impugned drug was discovered in the Appellant’s trouser pocket, which he was wearing at the material time. This, in the view of the court, constituted clear evidence of physical possession. In the absence of any credible rebuttal, knowledge of the nature of the drug was properly inferred, thereby establishing mens rea possession on the part of the Appellant.

As for the first charge, the learned High Court Judge found that the larger quantity of methamphetamine, weighing 191.6 grammes, was recovered from a black plastic bag placed on the floor mat adjacent to the driver’s seat in a vehicle owned and driven solely by the Appellant. The Appellant was alone in the vehicle at the material time, and the drugs were found in an open and conspicuous manner within his immediate proximity and control. These circumstances irresistibly pointed towards possession coupled with knowledge.

The learned High Court Judge further held that the nature, quantity and packaging of the drugs being divided into five packets supported an inference of possession for the purpose of trafficking. In light of the weight of the drugs, the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952 was engaged, thereby shifting the 6 evidential burden onto the Appellant to rebut the presumption on a balance of probabilities.

Turning to the defence, the learned High Court Judge rejected the Appellant’s version that the drugs belonged to one “Onn Chai” who had allegedly borrowed the vehicle. The court found this account to be a bare denial and an afterthought, unsupported by any credible evidence. The failure to provide any meaningful particulars or to lodge any report concerning this alleged individual rendered the defence inherently improbable and devoid of probative value.

The learned High Court Judge also rejected the challenge mounted against the chemist’s evidence. The testimony of the chemist (SP4), corroborated by his superior (SD3), was accepted as cogent and reliable. The absence of a GCMS test did not detract from the validity of the analysis, and the chain of custody of the exhibits was found to be intact and unbroken.

Upon a maximum evaluation on the totality of the evidence, including the defence, the learned High Court Judge concluded that the Appellant had failed to raise any reasonable doubt in respect of the possession charge and had similarly failed to rebut the statutory presumption of trafficking. The prosecution had therefore proved its case beyond reasonable doubt.

Accordingly, the Appellant was found guilty and convicted on both charges.

The gravamen of the appeal may be distilled into the following principal issues:

Alleged break in the chain of custody;

Failure on the part of the learned High Court Judge to properly evaluate the Defence under Section 182A CPC;

Dispute as to the recovery of exhibit P9A;

Absence of possession: knowledge, custody and control;

Proximity insufficient to establish possession;

Absence of forensic link (Fingerprint/DNA Evidence); and

Inapplicability of the doctrine of wilful blindness. Our Analysis and Findings [21] Foremost, it must be reiterated that the law on possession is neither novel nor obscure. As articulated in Chan Pean Leon v PP [1956] 22 MLJ 237 and consistently affirmed, possession comprises both a physical element and a mental element; custody and control coupled with animus possidendi. [22] It is our finding that the facts of the present case admit of only one conclusion; the drugs were found on the Appellant’s person, additional drugs were found within his immediate reach in a vehicle exclusively under his control and he was alone at the material time. In PP v Mohd Radzi Abu Bakar [2005] 6 MLJ 393, the Federal Court emphasised that possession may be inferred from surrounding circumstances. [23] In the present appeal, the circumstances are not merely suggestive, they are compelling. The Appellant was in a position to exercise dominion over the drugs to the exclusion of all others. That is the very essence of possession. [24] Knowledge, as the mental element, seldom admits of direct proof. As observed by the Federal Court in Parlan Dadeh v PP [2008] 6 MLJ 19, it is most often established by inference. [25] In the present case, several factors converge. Firstly, the Appellant was alone with the drugs. The drugs were in open view and within reach, the same type of drug was found both on his person and in the vehicle and the drugs were packaged in a manner consistent with distribution. The presence of the same drug on the Appellant’s person is particularly damning. As held in Ali Hosseinzadeh Bashir v PP [2015] 1 CLJ 918 such a fact effectively dispels any suggestion of ignorance. We are satisfied that the inference of knowledge drawn by the learned High Court Judge is not only reasonable, it is in fact irresistible. [26] We now turn to address the issues raised by the Appellant.

Alleged Break in the Chain of Custody [27] The Appellant contends that there were material gaps in the chain of custody of the impugned exhibits, thereby casting doubt on the identity and integrity of the drugs tendered in evidence. In particular, it is argued that the prosecution failed to account for the movement and safekeeping of the exhibits at critical stages, including the period between arrest and the lodging of the police report, the handling of the exhibits during forensic processes, and the unexplained loss of certain physical features (such as the rubber band on exhibit P10). It is further contended that the failure to properly mark and distinguish the exhibits raises the real possibility of contamination or interchange between the items seized. [28] We are unable to agree with the Appellant’s contention that there existed a material break in the chain of custody so as to vitiate the prosecution’s case. The learned High Court Judge had meticulously evaluated the evidence relating to the handling of the exhibits from the point of seizure to their production in court, and was satisfied that the chain remained intact. [29] The purported gaps highlighted by the Appellant are, in our view, peripheral and do not go to the root of the identity of the exhibits. The drugs seized were consistently identified, marked, analysed and produced through the testimony of the relevant witnesses, including the raiding officer, investigating officer and chemist. There was no credible evidence of tampering or substitution. As such, we find no basis to disturb the learned High Court Judge’s finding that the integrity of the exhibits was preserved.

Failure to Properly Evaluate the Defence under Section 182A CPC [30] The Appellant submits that the learned High Court Judge failed to give due consideration to the defence, in particular the evidence relating to one “Onn Chai”, who was said to have borrowed the vehicle and to have been responsible for the impugned drugs. It is argued that this defence was not an afterthought but had been put to the prosecution witnesses during cross-examination and was corroborated by defence witnesses. The rejection of this defence is said to be erroneous and contrary to the evaluative duty imposed under section 182A of the Criminal Procedure Code. [31] This particular complaint is equally without merit. The judgment of the learned High Court Judge demonstrates a careful and structured evaluation of the defence case, including the evidence relating to the alleged involvement of “Onn Chai”. [32] The learned High Court Judge was plainly entitled to reject this defence. The alleged individual was not properly identified, no report was lodged, and the evidence in support thereof was vague and inconsistent. The defence was correctly characterised as a bare denial and an afterthought, lacking in probative value. We find no misdirection in the learned High Court Judge’s approach.

Dispute as to the Recovery of Exhibit P9A [33] A central plank of the appeal is the contention that exhibit P9A was not recovered from the Appellant’s trouser pocket, but was instead found together with the other packets in exhibit P10. It is argued that the learned High Court Judge erred in accepting the prosecution’s version in the absence of corroborative physical evidence, such as the production of the Appellant’s trousers, and in the face of alleged inconsistencies in the prosecution’s case. [34] This contention was fully ventilated at trial and rejected by the learned High Court Judge on the evidence. The finding that P9A was recovered from the Appellant’s person is a finding of fact grounded in the testimony of the prosecution witnesses, which the learned High Court Judge found to be credible. [35] There is no basis for appellate interference. The non-production of the Appellant’s trousers does not detract from the cogency of the direct evidence of recovery, particularly where photographic and contemporaneous documentary evidence were available.

Absence of Possession: Knowledge, Custody and Control [36] The Appellant contends that he did not have custody, control or knowledge of the drugs found in the vehicle. It is argued that the impugned drugs were brought into the vehicle by “Onn Chai”, and that the Appellant lacked the requisite “power of disposal”, an essential element of possession. The Appellant further submits that any alleged custody was merely transient and insufficient in law to constitute possession. [37] We are satisfied that the learned High Court Judge correctly found that the Appellant was in possession of the impugned drugs. The drugs were found both on his person and within his vehicle, which he owned and exclusively controlled at the material time. [38] As stated earlier and at the risk of repetition, the concept of “possession” in law encompasses custody, control and knowledge. In the present case, the proximity of the drugs, their open placement, and the Appellant’s exclusive control of the vehicle give rise to a compelling inference of possession. The Appellant’s assertion that he lacked “power of disposal” is wholly untenable in the circumstances.

Proximity Insufficient to Establish Possession [39] The Appellant argues that mere proximity to the drugs, without more, is insufficient to establish possession or knowledge. In this regard, reliance is placed on authorities to contend that the learned High Court Judge erred in drawing an inference of possession solely from the Appellant’s presence in the vehicle and the proximity of the drugs. [40] While it is trite that proximity per se is insufficient to establish possession, the present case involves far more than mere proximity. The Appellant was alone in the vehicle, the drugs were found in open view within his immediate reach, and a further quantity was found on his person. These cumulative facts irresistibly support the inference that the Appellant had knowledge of the drugs.

Absence of Forensic Link (Fingerprint/DNA Evidence) [41] It is further contended that the absence of fingerprint or DNA evidence linking the Appellant to the impugned exhibits undermines the prosecution’s case, particularly in circumstances where possession and knowledge are disputed. [42] The absence of fingerprint or DNA evidence is not fatal to the prosecution’s case. Such evidence is corroborative in nature and not a sine qua non for proving possession. The prosecution may rely on circumstantial evidence, and in the present case, the surrounding circumstances overwhelmingly establish the Appellant’s possession and knowledge of the drugs.

Inapplicability of the Doctrine of Wilful Blindness [43] The Appellant submits that the doctrine of wilful blindness ought not to have been invoked, as there was no evidence to suggest that he deliberately shut his eyes to the obvious. Rather, it is argued that he had neither knowledge nor reasonable opportunity to ascertain the contents of the impugned bag prior to his arrest. [44] In light of our findings on actual knowledge and possession, it is unnecessary to invoke the doctrine of wilful blindness. In any event, the facts disclose a situation where the Appellant had actual knowledge of the presence and nature of the drugs, rendering the doctrine inapplicable. Alternative Submission on Conviction [45] In the alternative, the Appellant contends that even if possession were established, the conviction for trafficking under section 39B(1)(a) is unsafe and ought to be reduced to a lesser offence of possession under section 39A(2) of the Dangerous Drugs Act 1952. [46] Given the quantity of methamphetamine involved, the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952 was properly invoked. The burden therefore shifted to the Appellant to rebut the presumption on a balance of probabilities. The defence advanced, premised on the alleged involvement of “Onn Chai”, fell far short of displacing this presumption. The learned trial judge was correct in so holding. Conclusion [47] In the final analysis, we find that the learned High Court Judge had properly directed himself on both the law and the facts, and that his findings are amply supported by the evidence on record. The Appellant has failed to demonstrate any appealable error warranting appellate intervention. Accordingly, the appeal is dismissed, and the conviction and sentence imposed by the High Court are affirmed. Dated: 6 April 2026 Sgd NOORIN BINTI BADARUDDIN Judge Court of Appeal Malaysia LIST OF COUNSELS: Counsel for Appellant:

Mah Kah Keong [Nazri Aziz Masura Mak & Tan (Kuala Lumpur)] Counsel for Respondent:

TPR Atiqah Binti Abdul Karim Husaini [Attorney General’s Chamber]