Low Song Kim v Pendakwa Raya (P-05(M)-91-02/2018)

Low Song Kim

Nantawan Aranratchapisan] CORAM: KAMARDIN BIN HASHIM, JCA RHODZARIAH BINTI BUJANG, JCA MOHAMAD ZABIDIN BIN MOHD DIAH, JCA 2 JUDGMENT [1] The appellant was charged, together with one Thai lady named Nantawan Aranratchapisan, with two offences under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”), to wit, trafficking in 101.06 grams of heroin and 16.34 grams of monoacetylmorphines (first charge) and 647.19 grams of methamphetamine (second charge). The two charges reads as follows:- “Pertuduhan Pertama Bahawa kamu bersama-sama pada 21 hb Disember 2013, jam lebih kurang 4.30 pagi, di No. 3 Tingkat Lorong Merbau 5, Taman Merbau, Bagan Ajam, Butterworth, di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang, telah memperedarkan dadah berbahaya iaitu Heroin seberat 101.06 gram and Monoacetylmorphines seberat 16.34 gram (keseluruhan berat 117.4 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 dan dibaca bersama seksyen 34 Kanun Keseksaan.” “Pertuduhan Kedua Bahawa kamu bersama-sama pada 21 hb Disember 2013, jam lebih kurang 4.30 pagi, di No. 3 Tingkat Lorong Merbau 5, Taman Merbau, Bagan Ajam, Butterworth, di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang, telah memperedarkan dadah berbahaya iaitu Methamphetamine seberat 647.19 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta 3 Dada Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan.” [2] At the close of the prosecution case, only the appellant was called to give his defence to the charge whilst the lady was discharged and acquitted. After hearing his defence, the learned Judicial Commissioner convicted the appellant of both charges and sentenced him to the mandatory death penalty under section 39B(2) of the DDA. We heard his appeal against the said convictions and sentence on 09/10/2019 and dismissed the same. Our reasons for so deciding are in this judgment. However before delving into them, we would give a brief summary of the case for both sides. The Prosecution Case [3] Based on information received, ASP Poobalan a/l Krishnasamy (PW9) led a team of police personnel to the address as stated in the charge, which is a fenced up single storey terrace house with 3 rooms. They arrived there just half an hour before the time stated in the charge and saw that the house were brightly lit whilst the gate and the sliding door to the house was not locked but the main grille was. According to PW9, after his repeated knockings on the grille, the appellant was seen coming from the first room at the right side of the house and opening the grille with a key he obtained from the same room after 4 PW9 identified himself as a police officer. The lady was found in one of the three rooms in the house though not the same one as stated above. Nothing incriminating was found in any of the three rooms or on the appellant and the lady. The drugs as stated in the charge were actually found on a table in the sitting room and they are:

(i) 5 transparent plastic containing heroin and monoacetylmorphines in a box with the words “Classic Selection Steel AISI 304” written on it.

(v) One plastic container ‘Elianware’ containing 4 transparent plastic packets of 30.76 grams of pseudoephedrine was also found on the said table. [4] Besides these drugs, on the floor were found a box containing empty plastic packets, an electronic weighing scale and one weighing scale. Behind a cupboard in the sitting room were found a host of liquidefied chemicals such as sodium hydroxide, methanol and 5 acetone, 3 electric stoves and strainers (alat penapis). From a television cabinet in the sitting room were also found the appellant’s international passport and a framed photograph of him with another man. The appellant’s DNA was also found on a razor blade which was in the house as well as on a pair of short pants in a laundry basket which was near the washing machine. [5] The prosecution also produced a statement under section 112 of the Criminal Procedure Code recorded from one Ooi Choon Boay which states that the house was rented out by her to the appellant before the raid. The learned Judicial Commissioner therefore found on the evidence that the appellant not only had custody and control of the drugs but knowledge too given that they were found on the table which was laid out in the open. As for the lady, the learned Judicial Commissioner found that she was just a domestic servant in the house whose border-pass shows that she only came there to work 16 days before the raid. In respect of the element of trafficking, the learned Judicial Commissioner invoked the presumptions under section 37(da)(iiia) and section 37(da)(xvi) of the DDA, respectively for the two charges. 6 The Defence [6] The appellant gave sworn evidence in his defence and called the lady as his witness (DW2). He said he only went to the house a few hours before the raid that is at 11.00 p.m. to accompany the lady at the request of his friend named Tan whose BMW car was parked at the car porch whilst Tan and his family went to Kuala Lumpur for 3 days. The drugs were actually not found on the table as testified by PW9 but in the third room in the house and the house was accessible to others. The lady also testified that the third room where the drugs were found were used not just by Ooi Choon Boay who came to the house often but also by Tan, his wife and children. The learned Judicial Commissioner found the defence did not raise any reasonable doubt on the prosecution’s case on the following grounds:-

(i) It is illogical for Tan to ask appellant who was just a casual friend to look after his house with the valuable drugs in the house whilst he was away as the appellant was a lorry driver with flexible working time.

(v) It is completely illogical for Tan to leave such valuable drugs without securing them because the evidence of PW9 was that all 3 rooms were wide-opened and Tan could not have just left the drugs in the third room without locking it 8 for according to PW9, the market value of heroin is around RM3,500 – RM4,000 per kilogram, whereas for methamphetamine it was RM90,000 – RM100,000 per kilogram.

(i) Wrong finding by the learned Judicial Commissioner that the defence was an afterthought;

(v) Break in the chain of evidence in respect of the drugs seized. 10 We would consider the points raised below but not necessarily in the order as listed above. We begin with the issue on the break in the chain of evidence. Break In The Chain Of Evidence [8] Learned counsel highlighted the evidence of PW9 that when PW13 and the Sgt. Abdul Wahab Bin Hassan (PW12) came to the scene he was there and all the drugs were still on the table at the sitting room. PW9 then said that the drugs were put in a box/green bag but the photographs taken at the scene [Exh. 108(4)] did not show the existence of the said box/green bag. PW13 confirmed in evidence that no such box/green bag was handed over to him and that the photograph Exh. P108 (6) which was taken at the scene did not show the drugs exhibits as shown in the photographs marked as Exh. P36 (1 – 8) on the table. PW12 who came to the scene to take ‘swab dadah’ from the appellant and the lady testified that he did not see the drugs on the table. Therefore, learned counsel submitted that the said drugs were never found on the table as alleged by the prosecution or alternatively the drug exhibits have been compromised because they were moved before any labelling or marking were done and the said markings were not made in the presence of the appellant. 11 [9] The learned Deputy Public Prosecutor (DPP) on the other hand submitted that at the trial, the defence never challenged the markings and identification of the drug exhibits and based on the evidence of PW9 and PW13, there was no break in the chain of evidence. She however admitted in her oral submission before us that as shown in Exh. P108 (4) (at page 68 of the Appeal Record Volume 3) there was a green bag seen on the floor next to the sitting room table but it was not stated in the search list. However, that bag, submitted the learned DPP was not material evidence for the charge. [10] With respect, we do not see any merit in this issue raised for we agree with the learned DPP that the green bag or box had nothing to do with the drugs which were on the table because as testified by PW13, for they were just receptacles used to place the drug exhibits, and to carry them after their seizures. As shown in the photographs Exh. P108 (4), (5) and (6) there were lots of other things found near and around the sitting room table and unless they were connected in one way or another with the drugs seized, it is pure common sense, not just the law, that the prosecution need not have to tender them in court. The relevancy of the evidence, in other words is the paramount consideration. 12 [11] As for the evidence of PW12, what is clear is he arrived at the scene at 10.30 a.m. as per his witness statement at page 286 of the Appeal Record Volume 2B and based on the handing over note (Exh. P140 at page 112 Volume 3 of the Appeal Record) signed by Sgt. Tahir Jalaludin Bin Ngah (PW14) and PW13 the exhibits were handed over at 11.00 a.m. Obviously PW12 arrived at the tail end of the raid which started at 4.30 a.m. conducted in the house and without further elucidation from the witnesses and evidence to the contrary, it is safe to infer that by then, the police team were already winding down their operation and the drugs would not be on the table anymore. We are fortified in our view above from the evidence of PW9 who, even though he said earlier that the drugs were on the table in the sitting room, explained in his subsequent answers to questions posed to him in re-examination that when PW12 and PW13 arrived, he had put the drugs in a box beside the green bag. That evidence of his at pages 142-143 of the Appeal Record, Volume 2A is reproduced below: “TPR: Kamu ditanya Peg1: Di mana keduduk barang-barang kes dadah P44, P46, P48, P60 dan P62 serta P64 berada semasa pasukan D10 membuat siasatan? Semua ada di atas meja di bahagian ruang tamu. Peg1: Dalam keadaan asal telah berubah? Berubah ke bahagian tengah ruang tamu. 13 Peg1: Rujuk P108(4), ada atau tidak barang-barang dadah yang kamu rampas berada di atas meja seperti yang kamu katakan dalam gambar No. 4? Pada masa ini barang dadah tidak ada. Peg1: Tadi kamu kata barang-barang dadah semasa D10 sampai masih ada di tempat asal atas meja sedangkan dalam gambar ini diambil pada jam 9.45 a.m. tidak ada, mana pergi barang dadah ini? Saya telah simpan di hadapan meja, ada kotak, susun di dalam, bawah meja. TPR: Sila jelaskan sewaktu D10 sampai, barang-barang kes yang dijumpai di atas meja berada di mana? Pada masa D10 sampai di tempat kejadian, barang-barang kes iaitu dadah yang dijumpai di atas meja di ruang tamu semua telah diambil dan dimasukkan ke dalam kotak, saya letakkan di bawah tepi meja di atas lantai ruang tamu tersebut dan dalam kawalan saya. Disebabkan itu, unit D10 yang mengambil gambar ruang tamu seperti P108(4), barang kes tidak ada di atas meja iaitu pada kedudukan asal semasa menjumpainya.” As for the labelling or markings of the exhibits, there is no legal requirement and we were not appraised of one that these actions be done in situ where they were found and in the presence of an accused. Thus, we did not find any merit on the issue raised above. 14 Exh. 153 [12] Section 32(1)(i) of the Evidence Act 1950 allows the tendering of statements by persons not a witness at the trial on relevant facts as evidence. The said sub-section reads: “Section 32 Evidence Act 1950: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

32.(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases: ... ...

(i) when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an offence under or by virtue of any written law; and ...” (emphasis added) [13] This statement of Ooi Choon Boay was tendered as she had in the said statement stated that she sub-lets the house to the appellant. The learned Judicial Commissioner at paragraph 5 of his judgment mentioned the efforts made by both the PW13 who was the original Investigating Officer of the case and Insp. Anastasya Binti Abdul Ghafar (PW15) who was the substitute Investigating Officer of the 15 case to trace her and this is reflected in pages 103-104 of Volume 2A of the Appeal Record and pages 161-163 of the same volume, respectively. The summary of the evidence is reproduced by the learned DPP in her written submission and we have taken the liberty to do the same below: “SP11: Pernyataan Saksi WSP11 m/s 283-284 Jilid 2B

Keterangan SP11 di m/s 103 & 104 Jilid 2A a)

2.2016 – Arahan diberikan kepada Kpl Abd Ghani bin Ariffin untuk menyerahkan sapina kepada penama yang beralamat di No. 18, Taman Merbau, Bagan Ajam. Sapina tidak dapat diserahkan kerana dimaklumkan oleh bapa penama bahawa penama tidak tinggal di alamat tersebut dan penama bekerja di Alor Setar dan tinggal di Kepala Batas. b)

22.3.2017 – Terima diari siasatan dari Kpl Marzukai bin Roni untuk menyerahkan sapina kepada penama di alamat No. 29 Bukit Pinang, 06200 Kepala Batas. Sapina tidak dapat diserahkan kerana dimaklumkan oleh seorang penghuni di rumah iaitu Chong Vee Teng tersebut bahawa beliau telah berpisah dengan penama selama empat tahun dan tidak mengetahui di mana penama berada. Penyerah sapina juga telah menghubungi penama melalui nombor telefon 016- 4478824 namun gagal. c)

24.3.2017 – Siaran akhbar melalui Sinchew Daily (Northern Region) SP15: Pernyataan Saksi WSP15 m/s 6-8 RRT Keterangan SP15 di m/s 161-163 Jilid 2A 16 a) 5.10.2017 – Siaran akhbar melalui Oriental Daily b) 5.10.2017 – Arahan diberikan kepada D/SM Mohamad bin Haris untuk menyerahkan sapina kepada penama yang beralamat No. 209 Bukit Pinang, 6200 Kepala Batas Kedah @ No. 18 Taman Merbau, Pulau Pinang. Sapina tidak dapat diserahkan di alamat No. 209 Bukit Pinang kerana dimaklumkan oleh penghuni rumah tiada penama Ooi Choon Boay c) Kemudian arahan diberikan untuk mengesan penama di No. 18 Taman Merbau dan dimaklumkan oleh bapa penama bahawa penama telah beberapa tahun tidak balik dan penama tinggal di Alor Setar, Kedah tetapi bapanya tidak mengetahui alamat dan nombor telefon penama d) 7.11.2017 – semakan telah dibuat dengan Jabatan Pengangkutan Jalan dan pada 10.11.2017 dimaklumkan oleh Jabatan pengangkutan Jalan bahawa tiada rekod kenderaan yang wujud atas nama penama e) 7.11.2017 – semakan telah dibuat dengan Jabatan Pendaftaran Negara dan pada 13.11.2017 dimaklumkan oleh Jabatan Pendaftaran Negara bahawa alamat terkini penama adalah di 209

Bukit Pinang, 06200 Kepala Batas, Kedah f)

11.2017 – semakan telah dibuat dengan Jabatan Imigresen dan pada 14.11.2017 dimaklumkan oleh Jabatan Imigresen bahawa tiada rekod terkini penama g) 7.11.2017 – semakan telah dibuat dengan Kumpuan Wang Simpanan Pekerja dan pada 20.11.2017 dimaklumkan oleh Kumpulan Wang Simpanan Pekerja bahawa tiada maklumat alamat terkini penama.” 17 [14] Learned counsel for the appellant has cited to us the Federal Court’s decision in Sim Tiew Bee v Public Prosecutor [1973] 2 MLJ 200 on the interpretation of the aforesaid section 32, the relevant excerpts of which he had reproduced in his main written submission and which we would do the same below as well:- “It is therefore admissible in evidence provided it is proved that the maker is dead, cannot be found, or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable. (Section 32(b) of the Evidence Act.) ... ... ... This finding is not supported by evidence. The condition precedent to the reception of the document should be independent evidence that it would involve such delay and expense as would seem unreasonable. In the case of Chainchal Singh v Emperor AIR 1946 PC 1 at p 2 evidence given by a witness in a judicial proceeding was to be used under section 33 of the Indian Evidence Act in a subsequent judicial proceeding on the ground that the witness was incapable of giving evidence. It was held by Lord Goddard that: “Where it is desired to have recourse to this section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the 18 witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence”.” (emphasis added) [15] Guided by this case authority we are more than satisfied that serious efforts have been made by PW13 and PW15 to trace this Ooi Choon Boay and the failure of the prosecution to release her on bond as submitted by learned counsel does not prejudice the reception of the said evidence by the learned Judicial Commissioner. Neither is the fact that two other names mentioned by Ooi Choon Boay in her statement i.e. Low Wei Chong (whom Ooi Choon Boay states stayed with her in the house) and one Kok whom she also rented the house to, both not being called by the prosecution to testify, fatal to the prosecution case because these were individuals who occupied the house before Ooi Choon Boay sub-let it to the appellant. Further, the learned Judicial Commissioner had at paragraph 37 of his judgment warned himself to only give light weight to the said evidence because 19 Ooi Choon Boay was not cross-examined by the defence counsel but said in the same paragraph that he considered other corroborative evidence that the appellant rented the house before the raid and his arrest and this is in line with what this court had advised in S.P Rajnath K Saudrapandian & 1 Lagi v Pendakwa Raya [2017] 1 LNS 1223. It is a consideration of the law and application of it which in our view, His Lordship had rightly made. Non-Consideration Of The Defence [16] The remaining three issues listed by learned counsel for the appellant can be encapsulated under this one issue as in the title above. The basic thrust of the defence is that the appellant had no possession of the drugs found in the house for he was only in the house to look after the house on behalf of Tan. Learned counsel for the appellant submitted that against the learned Judicial Commissioner’s finding, that defence is not an afterthought or mere denial as stated by His Lordship and had failed in his evaluation of the defence to follow the Radhi’s direction given by the Supreme Court in the case of the same name, that is, Mohamad Radhi Yaakob v Public Prosecutor [1991] 1 CLJ (Rep) 311 which reads as follows: 20 “To earn an acquittal, the Court may not be convinced of the truth of the defence story or version. Raising a reasonable doubt in the guilt of the accused will suffice. It is not, however, wrong for the Court to be convinced that the defence version is true, in which case the Court must order an acquittal. In appropriate cases it is also not wrong for the Court to conclude that the defence story is false or not convincing, but in that instance, the Court must not convict until it asks a further question that even if the Court does not accept or believe the defence explanation, does it nevertheless, raised a reasonable doubt as to his guilt? It is for this reason that in dealing with the defence story or explanation, the majority of Judges rightly prefer to adopt straight away the legally established “reasonable doubt” test, rather than to delve in the “believable and convincing” test before applying the “reasonable doubt” test.” [17] When we considered learned counsel’s submission on these issues and the evidence highlighted to us, it is firstly true as admitted by PW13 that the appellant had mentioned Tan’s name to him during his remand but as considered by the learned Judicial Commissioner, simply giving his name, not even his full name we would add, without any other personal particulars is insufficient to negate his possession of the drugs. Equally true is the fact that there was no evidence adduced by the prosecution as to the owner of the BMW car parked at the driveway of the house but as rightly submitted by the learned DPP, the drugs were found in the house and not in the car. Contrary and with respect, to the contention of learned counsel, the learned Judicial Commissioner did evaluate the defence and had clearly stated his 21 reasons for rejecting the same which we had summarised earlier and one of which, we again reiterate for its importance and significance – finding it illogical that Tan, and we would also agree (even if he does exist) to leave such valuable drugs lying around the house unsecured, assuming that the drugs were found in the unlocked third bedroom as alleged by the appellant. We noted the evidence of PW9 at page 92 of the Appeal Record Volume 2A that the estimated market (or street) value of the drugs seized was between RM120,000.00 to RM130,000.00, which is no mean sum. We must also say that His Lordship had rightly considered the other evidence produced by the prosecution such as the DNA of the appellant on the short pants and razor blade, his framed photograph and what is equally damaging, his international passport in the house. For someone who was supposed to stay there for two days, the presence of these last two personal items, even if we are prepared to excuse the first two (but which we do not) have not been reasonably explained by the appellant. The existence of photographs of others, for example, as shown in Exh. P38