Low Kai Gie v Pendakwa Raya (P-05(M)-92-02/2018)

1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE CRIMINAL JURISDICTION) CRIMINAL APPEAL NO: P-05(M)-92-02/2018 BETWEEN LOW KAI GIE (NO. K/P: 841124-07-5415) … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the matter of the High Court at Pulau Pinang Criminal Trial No: 45A-46-11/2016 Between Public Prosecutor And Low Kai Gie] CORAM ABDUL RAHMAN SEBLI, JCA ZABARIAH MOHD YUSOF, JCA MOHAMAD ZABIDIN MOHD DIAH, JCA JUDGMENT OF THE COURT [1] In the High Court at Pulau Pinang, the appellant was charged with drug trafficking and the charge against him was as follows: “Bahawa kamu pada 29hb Mac 2016, jam lebih kurang 10.00 malam, di tepi Jalan Kampung Simpah, Mak Mandin, di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang, telah mengedar dadah berbahaya iaitu sejumlah 146.9 gram Methamphetamine dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh di hukum di bawah Seksyen 39B(2) Akta yang sama.” 2 [2] He claimed trial to the charge at the conclusion of which he was found guilty and sentenced to death, hence the present appeal. Having heard arguments by both sides, we unanimously dismissed his appeal and affirmed his conviction and sentence. These are the grounds of our decision. [3] The material facts on which the learned trial judge found the appellant guilty of the offence can be found in the following paragraph of his grounds judgment: “[69] Saya telah memberikan pertimbangan dan analisa yang sewajarnya ke atas keterangan-keterangan yang telah dikemukakan oleh pihak pendakwaan dan pembelaan yang diketengahkan oleh OKT, saya berpuas hati bahawa semasa OKT ditangkap, OKT sedang membawa beg silang dengan cara disilang di bahu kanan OKT yang diketahui oleh OKT akan isi kandungannya. Hasil daripada pemeriksaan yang dijalankan oleh SP4 ke atas beg tersebut, telah menemui 4 bungkusan plastik lutsinar yang di dalam keempat-empat bungkusan tersebut mengandungi dadah yang telah disahkan oleh SP3 sebagai Methamphetamine. Ini membuktikan bahawa dadah tersebut berada dalam milikan fizikal OKT tanpa perlu saya bergantung kepada anggapan dibawah seksyen 37(d). Memandangkan dadah tersebut dalam jumlah yang banyak maka saya pasti ia bukan untuk kegunaan sendiri malah saya bergantung kepada anggapan di bawah seksyen 37(da)(xvi) bahawa dadah tersebut dimiliki oleh OKT bagi tujuan pengedaran.” [4] It was a finding by the learned trial judge that the sling bag in which the drug was found was in the physical possession of the appellant and that he knew about the drug. It was a finding that the appellant was in mens rea possession of the drug. In view of the large amount of the drug, the presumption of trafficking under section 37(da)(xvi) of the Dangerous Drugs Act 1952 (“the DDA”) applied against the appellant. The provision reads as follows: 3 “37. In all proceedings under this Act or any regulations made thereunder – (da) any person who is found in possession of –

(xvi) 50 grammes or more in weight of Methamphetamine; otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug;” [5] The learned judge was right in invoking the presumption, which shifted the legal burden to the appellant to prove that the drug was not for the purpose of trafficking rather than for the prosecution to prove that the drug was for the purpose of trafficking. In fact, once the learned judge found that mens rea possession had been established by the prosecution, he must invoke the presumption: See Muhammed Hassan v Public Prosecutor [1998] 2 CLJ 70; [1998] 2 MLJ 273 FC; PP v Zulkifli Arshad [2010] 6 CLJ 121 FC; Attan bin Abdul Ghani v PP [1970] 2 MLJ 143 HC. [6] Where the statutory presumption of trafficking under section 37(da) has been triggered by proof of actual possession (as opposed to presumed possession), there is absolutely no necessity for the court to invoke the presumption of possession and knowledge under section 37(d). There is no such necessity simply because actual evidence of possession and knowledge, the two factual elements presumed by section 37(d) upon proof of custody or control, must already have been established by the prosecution for the presumption under section 37(da) to be applicable. The presumption under section 37(da) cannot be invoked without proof of mens rea possession. [7] What is prohibited by Muhammed bin Hassan is for the court to use the presumption of possession and knowledge under section 37(d) to further invoke the presumption of trafficking under section 37(da), hence 4 the rule against double presumption or presumption upon presumption. Proof of “possession” for the purpose of section 37(da) must be established by actual evidence direct or circumstantial and not by presumed possession and knowledge under section 37(d). [8] Attan bin Abdul Ghani was a case on section 14 of the Prevention of Corruption Act, 1961. In dealing with this provision, Sharma J said: “Once it is proved that the gratification has been paid or received then in the words of section 14 of the Act "Such gratification shall be deemed to have been paid or given or received corruptly… " The presumption at once arises under the section. This presumption is a presumption of law and it is obligatory on the court to raise it in every proceeding for an offence under section 3 or 4 of the Act provided it is proved that the gratification had been paid, given or received.” (emphasis added) [9] In the context of a criminal proceeding under section 39B(1)(a) of the DDA, once it is proved that the accused was in mens rea possession of the drug, it is obligatory on the part of the court to raise the presumption of trafficking under section 37(da). Obligatory means compulsory: See the Concise Oxford English Dictionary (Eleventh Edition, Revised). [10] The quantum of proof required to discharge the burden is proof on the balance of probabilities, which is heavier than the evidential burden of merely to cast a reasonable doubt in the prosecution’s case. Failure to discharge the burden must result in a conviction: PP v Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89. 5 [11] In order to succeed in this appeal, the appellant must show that the learned trial judge was plainly wrong in either of the following findings of fact:

(1) that the appellant had knowledge of the drug; or

(2) that the appellant failed to rebut the presumption of trafficking under section 37(da)(xvi) of the DDA. [12] Both are questions of fact which no doubt involve the question of the credibility of the witnesses. The guiding principle is that it is no part of the function of the appellate court both in criminal and civil cases to make its own findings of fact. This function is reserved by the law to the trial court: See the Federal Court case of PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 where the court said at page 475: “[31] We were then invited by the learned deputy to make our own findings on the evidence and to restore the conviction entered by the learned trial judge on the basis of the proviso to s. 92(1) of the Courts of Judicature Act 1964. Reliance was placed on the decision of this court in Tunde Apatira (supra). [32] Now, it is settled law that it is no part of the function of an appellate court in a criminal case – or indeed any case – to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. The reason is obvious. An appellate court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial court. [33] The further principle established by this court in Muhammed Hassan v Public Prosecutor is that where s. 37(da) is relied on by the prosecution, it is for the trial court to make a specific finding that the accused was in possession in the legal sense. In the absence of such a finding, it is not open to an appellate court to fill the gap and make the finding. A suggestion by counsel for the prosecution that this court is entitled to make its own findings of fact was firmly rejected.” 6 [13] But of course we are mindful of what the Federal Court said in the later case of Lee Ah Seng v PP [2007] 5 CLJ 1, as follows: “Clearly, an appellate court does not and should not put a brake and not going any further the moment it sees that the trial judge says that that is his finding of facts. It should go further and examine the evidence and the circumstances under which that finding is made to see whether, to borrow the words of HT Ong (CJ Malaya) in Herchun Singh’s case ([1964] 2 MLJ 209) ‘there are substantial and compelling reasons for disagreeing with the finding.’ Otherwise no judgment would ever be reversed on question of fact and the provision of s. 87 CJA 1964 that an appeal may lie not only on a question of law but also on a question of fact or on a question of mixed fact and law would be meaningless.” [14] We shall first deal with the question whether the learned trial judge’s finding on mens rea possession was supported by the evidence, not perverse and was arrived at after a proper and adequate evaluation of the evidence. If that had been the case, then we must defer to the trial court’s finding. [15] The crucial part of the prosecution’s evidence which the learned trial judge accepted as the truth was that the appellant tried to run away when SP4 identified himself as a police officer and refused to co-operate when SP4 wanted to inspect the sling bag that he was carrying. In accepting the prosecution’s evidence, the learned judge found no reason for the police witnesses to fabricate evidence against the appellant as they were merely carrying out their duties. [16] With such evidence before him, the learned trial judge was perfectly entitled to come to the finding that the appellant had knowledge of the drug. In order for us to reverse this finding of fact, the appellant must show 7 that the learned judge had failed to take proper advantage of his having seen and heard the witnesses giving evidence. [17] We were not persuaded that the learned judge had failed to do so. Nor did we find that there was insufficient judicial appreciation of the evidence. Therefore, we rejected learned counsel’s contention that the learned trial judge was wrong in finding that the appellant knew about the drug. [18] As to the question whether the appellant had succeeded in rebutting the presumption of trafficking under section 37(da)(xvi) of the DDA, the learned trial judge after directing his mind to the principle laid down by the Federal Court in Mohamed Radhi bin Yaakob v PP [1991] 3 MLJ 169 went on to evaluate the evidence given by the appellant and his witness (SD2) and found, rightly in our view, that the appellant’s defence deviated from the defence that he put to the prosecution witnesses during their cross examination at the prosecution stage of the case. [19] It was for this reason that the learned judge found the appellant’s defence to be a bare denial although his explanation was lengthy. In any event, he learned judge found that the explanation did not raise any reasonable doubt in his mind as to the truth of the prosecution’s case. We found nothing wrong with this finding. On this point, the Federal Court’s observations in Tan Kim Ho & Anor v PP [2009] 3 CLJ 236 are instructive: “[33] In our adversarial system of justice, the duty of each party is to show that his case is the truth. This is done by him adducing his own witnesses to support his contention. When it is the plaintiff or prosecutor who is adducing the evidence, his witnesses are subject to cross examination by the defence or the accused person. When a prosecution witness makes a statement of fact which is disagreed to by the defence it becomes the defence’s 8 duty to, in whatever way, put to the plaintiff or prosecution witness that what the witness has said is not true. In addition, he could also use the plaintiff’s or prosecution’s witnesses to adduce evidence to support his defence and to indicate what his defence is. This he is required to do to enable the plaintiff or prosecution to bring out evidence to disprove what the defence intends to adduce. If the defence does not in any way indicate by cross examination of those facts, those statements by the plaintiff’s or prosecution witnesses must be accepted as true. Even if the plaintiff’s or prosecution’s witness does not say anything relating to the defence case, it is still the duty of the defence to bring out his case during the plaintiff’s or prosecution’s case. In fact this duty to disclose his defence during the prosecution’s case is more relevant in criminal cases than in civil. This is particularly so when the plaintiff or prosecution’s witness is relevant to the fact in issue. In criminal cases, the prosecution does not know what the defence is going to be, except in alibi, until the defence adduces its evidence. [34] The failure of a party to put questions to his opponent’s material witnesses in cross-examination is said by Gopal Sri Ram JCA in Aik Ming (M) Sdn Bhd & 8 Ors v Chang Ching Chuen & 3 Ors & Another Case [1995] 3 CLJ 639 to be an abandonment of the pleaded case and may be barred from raising it in argument thereafter.” [20] It is pertinent to note that the appellant did not raise as his defence that the drug was not for the purpose of trafficking, although the burden was on him to rebut the presumption of trafficking under section 37(da)(xvi) of the DDA. Rather, his defence was that the drug was not found in the sling bag that he was carrying but was found in the Myvi. [21] It was a defence that he was not even in physical possession of the drug at the time of his arrest, let alone to be trafficking in the drug. If true, the presumption of trafficking under section 37(da)(xvi) of the DDA did not even apply against him as physical possession with knowledge or mens rea possession is a factual prerequisite for the invocation of the presumption. 9 [22] Subject to what we have to say in a moment on the appellant’s line of defence, the failure by the appellant to adduce any evidence to discharge his legal burden of proving that the drug was not for the purpose of trafficking is fatal because by such failure, there was no material before the court for the learned judge to make a finding that the presumption of trafficking under section 37(da)(xvi) of the DDA had been rebutted by the appellant. Evidence that the drug was not found in the appellant’s possession but in the Myvi, even if true, is not evidence in rebuttal of the presumption. [23] Be that as it may, the appellant would still be entitled to an acquittal if he succeeded in raising a real and reasonable doubt in the court’s mind as to whether or not the drug was in his physical possession at the time of his arrest. It is the lighter evidential burden of merely to introduce evidence which does not require proof on the balance of probabilities, unlike the requirement to rebut the presumption under section 37(da) of the DDA. [24] The defence was however rejected by the learned trial judge for the reason that if indeed the drug was found in the Myvi and not in the appellant’s physical possession as claimed by him, the police would have arrested the car owner, one Siew Chee Wei who was with the appellant at the material time. [25] The legal position therefore remains that the appellant was in mens rea possession of the drug and he failed to discharge his burden of proof under section 37(da)(xvi) of the DDA that the drug was not for the purpose of trafficking. It must follow that he must be convicted of the offence charged: PP v Yuvaraj (supra). 10 [26] The grounds of judgment shows that in finding the appellant guilty of the offence charged, the learned trial judge had carefully and meticulously evaluated the entire evidence as required by section 182A(1) of the Criminal Procedure Code. He was clear on the issues of law involved and the evidence that was required to establish facts necessary to bring home the charge against the appellant. [27] There was no misdirection on the law, nor was there mishandling of the facts by the learned trial judge. There was in the circumstances no basis for us to disturb the finding of guilt by the learned judge. [28] It was for all the reasons aforesaid that we found the conviction to be safe. Accordingly, we dismissed the appeal and affirmed the conviction and sentence. signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 22 November 2019. For the Appellant: Ranjit Singh and Tan Guat Cheng of Messrs GC Tan & Co. 11 For the Respondent: Samihah binti Rhazali, Deputy Public Prosecutor of the Attorney General’s Chambers.