Megala Nathan A/L Mariappan v Pendakwa Raya (N-09(H)-224-06/2022)

The appellant was charged in the Magistrates Court under section 12(2) of the Dangerous Drugs Act 1952 (‘DDA 1952’), which is punishable under section 39A(2) of the same Act. He was found guilty and sentenced to four years of imprisonment commencing from the date of conviction, along with four strokes of whipping. He appealed to the High Court, but his appeal was unsuccessful, as the court dismissed it and upheld the conviction and sentence imposed by the Magistrates' Court.

The appellant subsequently sought leave to appeal under section 50(2) of the Courts of Judicature Act 1964. The legal question presented was: “Presumption tidak dinyatakan diakhir kes pendakwaan, samada keputusan Mahkamah Majistret tersebut betul ataupun boleh dibangkitkan semula.” Essentially, the legal question was whether the Magistrate Court’s decision was correct since it did not state the presumption at the conclusion of the prosecution’s case. The appellant was granted leave, leading to this appeal. 3 Brief facts

The charge against the appellant read as follows: “Bahawa kamu pada 05 July 2018 jam lebih kurang 1.20 tengahari di hadapan bengkel pusat servis kenderaan A&H Automaster Sdn Bhd, Pusat Perindustrian Ringan Senawang, Seremban, Negeri Sembilan telah disyaki memiliki bahan dadah berbahaya jenis Methamphetamine berat bersih 16.13 gram. Oleh itu kamu telah melakukan suatu kesalahan di bawah Sek. 12(2) Akta Dadah Berbahaya 1952 (234) dan boleh dihukum di bawah Sek: 39A(1) di bawah Akta yang sama.”

The police team that arrested the appellant had been briefed on his drug trafficking activities prior to his arrest. On the afternoon of 5 July 2018, the police team observed the appellant standing next to his car for ten minutes before apprehending him. During their search of the car, they discovered drugs that were central to the charges against him. The drugs were found in a bag inside the vehicle.

The prosecution called seven witnesses to support their case. The learned Magistrate determined that the prosecution had established a prima facie case and called upon the appellant to enter his defence. The appellant called two witnesses: himself and a colleague from work. In his defence, the appellant denied ownership of the bag and claimed that he did not have exclusive access to the car, as his work colleagues 4 also placed their belongings in it and that the rear doors could not be locked. The learned Magistrate concluded that the issues raised in the appellant’s defence appeared to be afterthoughts and ruled that the appellant had not raised a reasonable doubt. The appellant's appeal to the High Court was unsuccessful, prompting him to apply for leave to appeal to this court on a question of law. On 19 May 2022, this court granted leave regarding the legal question posed by the appellant.

The primary issue in this appeal is whether the Magistrate's failure to indicate that she has invoked the presumption of possession under section 37(d) DDA 1952 at the end of the prosecution’s case had resulted in a miscarriage of justice for the appellant. The appellant's argument consists of two main points: first, the learned Magistrate did not specify whether she invoked the presumption under section 37(d) at the conclusion of the prosecution's case; and second, she failed to state in her judgment that she had invoked this presumption at the end of the prosecution’s case.

The appellant's counsel argued that the appellant would only need to raise a reasonable doubt if the learned Magistrate had indicated that he was in actual possession of the drugs. In contrast, if the presumption of possession under section 37(d) DDA 1952 was invoked, the burden would be on the appellant to rebut this presumption based on a balance of probabilities. 5 The appellant claimed he suffered prejudice because he could not adequately prepare his defence, not knowing the Magistrate's finding on possession at the end of the prosecution’s case.

It was further submitted that the learned Magistrate only found presumed possession against the accused at the end of the defence's case, and not at the end of the prosecution's case. The appellant's counsel contended that the High Court erred in stating that the learned Magistrate had made a finding of presumed possession when calling for the accused's defence, as it was only at the conclusion of the defence's case that such a finding was made in her judgment.

The prosecution bears the legal burden of proving the charge against the accused beyond a reasonable doubt, by adducing sufficient evidence to prove every single element of the offence alleged in order to establish a prima facie case, which if not rebutted or unexplained, will result in a conviction; section 180(4) CPC, Balachandran v PP [2005] 1 CLJ 85 (FC).

The duties of a trial judge are outlined in section 180 of the Criminal Procedure Code (‘CPC’), which states the following: Procedure after conclusion of case for prosecution

(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused.

If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.

If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.

For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. [11] Section 180 CPC outlines the procedure a trial judge must follow to determine if the prosecution has established a prima facie case against the accused. This provision is straightforward and clearly defined. The trial judge is required to evaluate all evidence presented by the prosecution on a maximum evaluation basis; PP v Mohd Radzi Bin Abu Bakar [2005] 6 AMR 203 (FC). [12] The accused will only be called to enter his defence if a prima facie case has been proven against him, for he would otherwise be entitled to an acquittal; section 180(2) and (3) CPC. The primary task of a trial judge at the end of the prosecution's case is to determine whether he would be willing to convict the accused if the accused chooses to remain silent when the defence is called. If the judge's answer is negative, then no prima facie case has been made against the accused, and he should be acquitted; Looi Kow Chai & Anor v PP [2003] 1 CLJ 734. [13] Therefore, when a trial judge calls for the accused to enter his defence, it necessarily means that he has been satisfied that the prosecution has established the elements of the offence that the accused was charged with, which, if unrebutted, would warrant a conviction against the accused. [14] There is no requirement under section 180 CPC for the trial judge to specify reasons or provide grounds for determining a prima facie case. Section 180 should be understood in its plain context. One of the issues raised in the Federal Court case, PP v Sandrasegaran Nithenanham [2024] 4 CLJ 823, was the High Court judge's failure to indicate which limb of section 300 of the Penal Code (‘PC’) he relied upon in his decision to call for defence. Nordin Hassan FCJ, in delivering the judgment for the apex court, stated that the trial judge is not obligated to do so, as section 180 CPC does not require the trial judge to provide reasons when calling for a defence. His Lordship elaborated as follows: “[27] The provision of s. 180 of the CPC is plain and unambiguous that at the end of the prosecution case, the duty of the trial judge is to determine whether the prosecution has made out a prima facie case as required under sub-s.180(1)…….. …….. [29] There is nothing under ss. 180, 182A or other related provisions of the CPC that requires the trial judge to state specifically which limb of s. 300 of the Penal Code that the prosecution has proved, in particular before calling the accused to enter his defence. Further, the trial judge is also not required to give any reason for calling the accused to enter his defence. Any decision of the court that requires as such, would add something that is not required under the law or put words in a plain and unambiguous provision of the law. The court’s duty is to interpret law passed by the Parliament but not to interpret the subjective intention of the Parliament.” [15] Although the case involves a murder charge under section 300 PC, the key takeaway from the decision is that a trial judge must first determine whether the prosecution has established a prima facie case. The judge is only required to call for a defence if he is satisfied that a prima facie case exists. Consequently, in this instance, the learned Magistrate is not obligated under section 180 CPC to inform the appellant whether she has invoked a presumption of possession against him. Additionally, it is well established in law that a trial judge is not legally required to provide his judgment or reasoning when calling for a defence; PP v Sandrasegaran Nithenanham (supra), Yap You Jee v PP & other appeal [2015] 7 CLJ 897 (CA). [16] A relevant case is the Federal Court's decision in Sathya Vello v PP [2022] 5 CLJ 659. The appellant was charged with two counts of drug trafficking under section 39B DDA 1952. He was found guilty by the High Court, and the Court of Appeal affirmed this decision, dismissing his appeal. One of the issues raised at the apex court was the trial judge's failure at the High Court to specify whether the defence was called on the basis of presumed trafficking or direct trafficking. The appellant argued that this lack of clarity deprived him of the necessary information to prepare his defence effectively. Similar to the case of PP v Sandrasegaran Nithenanham, in referring to section 180 CPC, the court held that there was no requirement for the trial judge to inform the accused of the reason for calling for his defence. The court referenced section 180 CPC and held that there was no requirement for the trial judge to inform the accused of the reason for calling for his defence. Rahman Sebli FCJ (now CJSS), who delivered judgment for the court, also held: [60] The case was also applied in the Court of Appeal case of Yap You Jee v. PP & Other Appeals [2015] 7 CLJ 897 through the judgment of Tengku Maimun Tuan Mat JCA (as the Right Honourable Chief Justice then was). So, if the law does not require the trial judge to give any reason for calling for the accused’s defence, there is no reason why he is required to inform the accused at the close of the prosecution case whether any presumption of law applies against him. In any case, even if there is a failure to do so at this stage of the trial, it does not ipso facto and for that reason alone, render the decision to call for the defence fatally flawed. What will be fatal is not to comply with s. 180 at all. (emphasis added) [17] The respondents in PP v Muhammad Azizul Hafiz Wahib & anor [2024] CLJU 1241 were initially convicted for an offence under section 12(2) DDA 1952. The High Court, however, allowed the respondents’ appeal and set aside the conviction and sentence passed against the respondent, on the basis that the learned Magistrate had failed to inform the accused that she had raised a presumption under section 37(d) DDA 1952 and that this failure had occasioned a miscarriage of justice against the respondent. In allowing the prosecution’s appeal, this court held that the failure to do so did not impair the prosecution’s case, nor did it prejudice the respondent. [18] The case of Seyedalireza Seyedhedayatollah Ehteshamiardestani v PP [2014] 406 (CA), cited by the respondent's counsel, is not relevant to the issues in this appeal. In that case, this court had acquitted and discharged the appellant’s conviction under section 39B DDA 1952 as the High Court misdirected itself by way of a non-direction in not electing or making a finding on which presumption under section 37(d) and (da) of the DDA 1952 was invoked and relied on the alternative. It was further held that there must be a certainty as to the presumption before defence was called. The court however did not set any requirement for the trial court to indicate to the accused whether presumption has arisen against him. In the other cases cited by the appellant's counsel, William John a/l Sandanasamy v Public Prosecutor [2021] MLJU 2272 (HC) and Imran Zakaria v PP [2022] 2 CLJ 396 (CA), the appellants' appeals were allowed by the High Court and this court, respectively, because it could not be conclusively determined from the judgments whether the trial judges had relied on a presumption or direct evidence at the end of the prosecution’s case. The decisions in these two cases do not support the respondent's arguments in this appeal. [19] We have reviewed the learned Magistrate’s judgment and agree with the High Court’s decision in affirming the Magistrate Court’s decision. Although the learned Magistrate did not explicitly state in her judgment that she had invoked the presumption of possession at the conclusion of the prosecution’s case and had only stated it at the end of the defence’s case, this omission is not detrimental to the appellant as the learned Magistrate was not required to inform the appellant about the invocation of the presumption when calling for the defence. Ultimately, what matters is that the learned Magistrate was certain in applying the presumption against the appellant. From the judgment, it is clear that the learned Magistrate did invoke the presumption, even though she only mentioned it at the end of the prosecution’s case in her decision. Conclusion [20] We are satisfied that there are no appealable errors that warrant our appellate intervention, and find that the conviction against the appellant is safe. The appellant’s appeal is therefore dismissed. Dated: 27 January 2025. - sgd - (MOHAMED ZAINI MAZLAN) JUDGE COURT OF APPEAL, MALAYSIA Counsel for the Appellant Paul Krishnaraja Selladurai, Amy Chong & Virochean Stephan Soosai. [Messrs Paul, Amy Chong & Associates] Counsel for the Respondent Tengku Shahrizam bin Tuan Lah & Syarifah Khairiah binti Syed Akmal [Attorney General’s Chambers] _