Subparagraph
(iii) when there are two inferences, the inference most favourable to the Appellant ought to be adopted. It was submitted that this was a serious error of law and on this ground alone the conviction ought to be set aside. [15] On the second ground, accepting the evidence of the prosecution, it was submitted that the learned trial judge ought to have asked himself at the end of the defence case whether it was a case of possession and not trafficking. It was submitted that the facts spoke in favour of possession and not trafficking. There was no overt act of trafficking on the part of the Appellant who was in passive possession of the same only. The drugs were not packed in small packets which were in four plastic packets. Further, the amount of heroin was 82.38 grams which was 5.4 times the prescribed limit. The Appellant relied on the following authorities: Wan Amirul Mubin bin Wan Kamaruddin v PP Criminal Appeal No. 05-169-08-2017 (T) Federal Court; Sia Swee Seong v PP [2018] 1 CLJ 647; Zaruna bt Yusof v PP [2016] 1 MLJ 860; Ooi Hock Leong v PP [2014] 5 MLJ 858. [16] It was submitted that the presumption of trafficking was always rebuttable and on the facts there was no affirmative evidence of trafficking. The Appellant submitted that the trafficking should be set aside and be substituted with one of possession punishable under section 39A(2) of DDA, citing the cases of PP v Tan Tatt Eek [2005] 6 AMR 543 and Fakhrurrazi Hasan v PP [2017] 2 CLJ 125. Page 7 of 20 The Respondent’s submission [17] Similarly the Respondent put forward two grounds in its submission. First, the Respondent submitted that the Appellant had the custody and control of the drugs which were found inside the black plastic bag which he was holding in his hand. It was submitted that SP4 had testified that at the time the Appellant was arrested, the Appellant looked frightened and was crying asking the police not to arrest him. [18] It was submitted that at the material time the Appellant did not inform SP4 that someone had just given the black plastic bag to him or that it did not belong to him or that he did not know of the contents of the bag although he was given the opportunity to explain but did not do so. It was submitted that the allegations about the bus driver and that the real trafficker was Anandaraj could not be true because these were not put to SP4 and SP5 but only raised during the defence case so that the prosecution was not given the opportunity to investigate these allegations, relying on the case of Alcontara a/l Embros Anthony v PP [1996] 1 CLJ 705. [19] Second, it was submitted that the testimony of SP4 was consistent and was not seriously challenged by the defence in cross-examination. It was submitted that the learned trial judge had found SP4 to be credible and accepted his evidence as such. It was submitted that the learned trial judge had also found that the Appellant had failed to raise any doubt on the prosecution case. [20] The Respondent submitted that based on his conduct, the Appellant knew of the contents of the black plastic bag he was carrying Page 8 of 20 and he knew of the nature of the drugs, citing the case of Parlan Dadeh v PP [2009] 1 CLJ 717. It was submitted that based on the evidence that the Appellant was in possession of the drugs. Our Decision [20] We refer to the two grounds canvassed by the Appellant. It seems there is a contradiction between the two. In the first ground, the Appellant submitted that the learned trial judge had erred in invoking the presumption of trafficking under section 37(da) of DDA because there was sufficient evidence to find trafficking under section 2 of DDA. However, in the next breadth, it was submitted that at the end of the defence that it should only be a case of possession and not of trafficking. In any event, we shall deal with the issues and submissions before us. [21] It was submitted that there was no need to resort to presumptions where there is direct evidence of the facts to be presumed. It was submitted that the learned trial judge had erred in invoking the presumption under section 37(da) of DDA of trafficking when his lordship could have invoked section 2 of the Act as accepting the evidence of SP4 that the Appellant was carrying (the black plastic bag). It was submitted that the invocation of the section 37(da) presumption had seriously prejudiced the Appellant which had placed a heavier burden on the Appellant, citing the case of PP v Chia Leong Foo (supra). [22] In that case the accused was riding a motorcycle which was registered in the name of the accused and carrying a pillion rider. PW6 followed the motorcycle and shouted ‘police’ at the accused but the Page 9 of 20 accused accelerated his motorcycle. While the accused was trying to escape, he took out a white bag and threw it away and the accused lost control and knocked into a road divider and fell down. They got up and tried to escape but were arrested. It was found that the bag which the accused had thrown away contained ten plastic packets suspected to contain heroin. On the facts adduced by the prosecution, the learned High Court Judge (as he then was) found the accused in possession of the bag containing the dangerous drug and was transporting such dangerous drug at the material time. Therefore he ruled that it was inappropriate for the prosecution to rely on the presumption provided by the Act. That case on whether it was necessary to rely on presumption of trafficking can be distinguished on the facts of the case. [23] The presumption of trafficking works as follows, when an accused is proved to have dangerous drugs in his possession and to have been moving them from one place to another (a) the mere fact of moving them from one place does not of itself amount to trafficking within the meaning of the definition in section 2 of DDA; but if the purpose for which they are being moved was to transfer possession from the accused to some other person at their intended destination the accused is guilty of the offence of trafficking, whether that purpose was achieved or not; (b) if the quantity of a dangerous drug is in excess of the minimum quantity specified for that drug in section 39B(1)(a), that section creates a rebuttable presumption and the onus lies on the accused to satisfy the court, upon the balance of probabilities: Ong Ah Chuan v Public Prosecutor Koh Chai Cheng v Public Prosecutor [1981] 1 MLJ 64 (emphasis added). Page 10 of 20 [24] In this case, SP4 received information of a drug case. In Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 3 MLJ 1, the Supreme Court highlighted the danger of relying on a tip-off as there was a possibility that the drugs might be planted to implicate the accused and the onus was on the prosecution to exclude such possibility. Based on the evidence adduced in the court below, it was not in dispute as follows: [i] The Appellant was carrying the black plastic bag containing the four packets of white powdery substances when he was arrested by SP4 at the R&R Machap. [ii] There was no evidence that the drugs were planted to implicate the Appellant. [iii] SP2 carried out the analysis of the white powdery substances. He testified that they contained 82.38 grams heroin. His chemist report was tendered as exhibit P4 without any objection. Counsel for the Appellant did not cross-examine or challenge SP2 on the analysis carried out and the identity, nature and weight of the white powdery substances which contained 82.38 grams heroin. [iv] The learned trial judge found that there was no tampering or break in the chain of evidence. Based on the appeal record, we agreed with his findings as such. [25] Although the Appellant submitted that there was sufficient evidence to find trafficking pursuant to section 2 of DDA, at the end of the defence it was contended that it should be a case of possession. From the submission made, it would appear that the Appellant did not challenge the fact that he was in possession of the heroin. For completeness, we shall deal with this. [26] As stated above, it was not in dispute that at the time he was arrested, the Appellant was carrying the black plastic bag containing the box which was gift-wrapped. SP4 tore the gift-paper wrapping the Page 11 of 20 box and found four packets of white powdery substances, each packet wrapped with newspaper, inside the box. The question is, did the Appellant know of the contents of the bag that he was carrying? The Appellant contended that the plastic bag containing the box did not belong to him and he did not know the contents of the bag because Anandaraj asked him to pick up the package from a bus at the R&R Machap. [27] On evidence adduced, on the day in question, on 4.1.2016, at about 7.48 a.m., SP4 received a call on his mobile phone from an unknown male that an unidentified man was using a Honda vehicle to pick up a package believed to be dangerous drugs from a bus at the R&R Machap. SP4 subsequently lodged a police report on the information received (see exhibit D17). In cross-examination, SP4 denied that he and his officers had spoken to a bus driver or that the bus driver was the informant or that some of his officers used the bus to the R&R Machap because of the word “bas saya” which SP4 explained was a typing mistake. SP4 denied that he waited for the bus to arrive at the R&R Machap or that he saw the Appellant taking a package from a bus or from a compartment of a bus. It was lastly put to SP4 that the Appellant went to the place of incident on the instruction of his partner by the name of Anandaraj and SP4 replied that he was not sure. That was the extent of the cross-examination of SP4. It was not put to SP4 that the black plastic bag did not belong to the Appellant or that he was asked by someone to carry it or to hold it momentarily or that the Appellant did not know of the contents of the black plastic bag or that he did not know that it contained the heroin or dangerous drugs. Page 12 of 20 [28] The evidence established that after SP4 arrived at the R&R Machap at about 9.30 a.m., he saw an Indian man (the Appellant) carrying a black plastic bag walking towards a white Honda vehicle which was parked nearby. It was not in dispute that this Honda vehicle was registered in the name of the Appellant’s sister (SP6) and that the Appellant drove this Honda vehicle to the R&R Machap. SP4 approached and apprehended the Appellant and seized the plastic bag. At that time SP4 did not see the Appellant taking the black plastic bag from a bus nor did he see any bus parked there. SP4 also did not see him taking or giving the black plastic bag to anyone. After the Appellant was apprehended, SP4 said the Appellant looked scared, crying and begged not to be arrested. At that time the Appellant did not give any denial or explanation or that he was a drug addict or that it was for his own consumption. Of course he was entitled to remain silent. [29] The learned trial judge had directed himself and dealt with the testimony of SP4 and found him to be a credible and truthful witness whose testimony was not seriously challenged. The learned trial judge heard, listened and watched the witnesses during the trial and had the audio and visual advantage and an appellate court will be slow to disturb with the findings of credibility of witnesses unless the findings were perverse or against the weight of evidence or that the trial judge was plainly wrong: UEM Group (previously known as United Engineers (M) Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2018] Supp MLJ 363; Wan Mazuki bin Wan Abdullah v Public Prosecutor [2018] Supp MLJ 401. Although it was put to SP4 that the Appellant went to the R&R Machap on the instruction of Anandraj to pick up a package from a bus, at the end of the prosecution’s case Page 13 of 20 there was no evidence as such and these allegations remained as bare allegations. The Appellant had yet to testify and or adduce such evidence. [30] Proof of knowledge is often a matter of inference. It would be sufficient for the prosecution to prove facts from which it could be properly inferred that the accused had the necessary knowledge. Knowledge is generally inferred from proved facts and circumstances: Emmanuel Yaw Teiku v Public Prosecutor [2006] 5 MLJ 209; Fakhrurrazi Hasan v Public Prosecutor (supra). The learned trial judge, after considering the facts and circumstances, found that the Appellant knew of the contents and nature of the black plastic bag he was carrying and that he knew that it contained dangerous drugs. The learned trial judge had made a finding that the Appellant was in possession of the drugs. We have scrutinized the evidence and we were unanimous in our decision that the learned trial judge was not plainly wrong in his finding that the Appellant was found to be in possession of the drugs. [31] At the trial the prosecution did not lead direct evidence of trafficking against the Appellant but relied on the presumption under section 37(da) of DDA that the Appellant was trafficking in the drugs. As stated, at the end of the prosecution case, on evidence adduced, SP4 received information of a man intending to pick up a package believed to be dangerous drugs at the R&R Machap. Acting on the information, SP4 with some policemen went to the R&R Machap where he saw the Appellant carrying the black plastic bag walking towards the Honda vehicle parked nearby. There was no evidence of Page 14 of 20 his sister being involved or that there were drugs inside the Honda vehicle. [32] On the evidence as such that the Appellant was found to be carrying and in possession of the black plastic bag containing 82.38 grams heroin, the prosecution relied on the presumption of trafficking. Under section 37(da) of DDA, any person, who is found in possession of 15 grams or more in weight of heroin, shall be presumed, until the contrary is proved, to be trafficking in the said drug. Based on the findings of facts that the Appellant was in possession of the black plastic bag containing 82.38 grams of heroin, the presumption under section 37(da) of DDA applied in this case: Public Prosecutor v Yuvaraj [1969] 2 MLJ 89. The learned trial judge was correct in saying that based on the weight of heroin in the possession of the Appellant that the presumption under section 37 (da) of DDA applied. [33] We refer to Ong Ah Chuan’s case (supra) set out above on what amounts to trafficking under section 2 of DDA. There was no merit in the submission of the Appellant that there was sufficient evidence to find trafficking under section 2 of DDA or that the learned trial judge could have invoked section 2 of DDA that the Appellant was in fact trafficking in the drugs. On the evidence before us, we were unable to agree with the submission of the Appellant that the learned trial judge had erred in invoking the presumption under section 37(da) of DDA which had seriously prejudiced the Appellant in placing a heavier burden on the Appellant on a balance of probabilities. [34] In defence, the Appellant testified that at the material time he was working at Hotel Harmoni which was owned by Anandaraj using Page 15 of 20 a rented premise belonging to Eng Hiap Seng Sdn Bhd (EHS). In 2015 the hotel and Anandaraj were in debts and offered the Appellant to be a partner in the hotel business. The Appellant agreed and paid RM30,000.00 to settle the rentals owing to EHS and the salaries of employees of the hotel. The Appellant produced the receipts (exhibits D20, D21 and D24) and a draft agreement dated 5.1.2016 and called SD4 to confirm these. [35] The Appellant testified that on 4.1.2016 at 6.00 a.m. he was at the hotel together with Anandaraj and SD3 and Anandaraj asked him to pick up a package on his behalf and that Anandaraj had given the Appellant’s phone number to a bus driver who would contact the Appellant. The Appellant said he then received a call from the bus driver asking him to wait at the exit of R&R Machap and the bus driver would arrive there before 9.00 a.m. The Appellant went there using the Honda vehicle. When he arrived, he did not see anything. Then a Pacific Express bus arrived and he met the bus driver, a Malay, and two passengers who came down from the bus, identifying themselves as police, and arrested him. He said SP4 and other police then arrived using a Camry vehicle and that SP4 spoke to the bus driver who pointed out the package in the bus. He said SP4 instructed him to take the package from the bus and handcuffed him. The Appellant said Anandaraj and the bus driver did not tell him of the contents of the package and he did not examine and did not know of the contents of the package. He said he did not know who put the package in the bus and it did not belong to him. [36] The Appellant then explained why he was crying and begged not to be arrested because on 1.1.2016 he consumed ‘syabu’ and his Page 16 of 20 urine specimen taken by the police tested positive. He said he was afraid that his family might find out. This explanation was not put during the prosecution’s case but raised at the defence stage. [37] The Appellant called several other witnesses for the defence. SD3 testified that he was present and heard Anandaraj asking the Appellant to pick up a package on behalf of Anandaraj. SD5, the elder brother of the Appellant, testified that he went to the house of the bus driver in Kedah asking him to come to court as a witness for the defence but he was not at home. SD5 then met the bus driver (SD6) in Butterworth and served a subpoena who refused to sign and did not want to be a witness. However, subsequently SD6 was persuaded to testify. [38] SD6 testified that on 3rd or 4th of January, 2016 he drove a bus from Butterworth to Johor Bahru (JB). At Larkin Central he received a package containing a box which was gift-wrapped and phone number from a Malay bus driver working for Starmart Express whom he did not know and who told him it belonged to Batumali a/l Muniandy (Batumali) and asked SD6 to deliver it at the R&R Machap. SD6 was asked and said that on the way to JB he met Batumali at KL Perhentian at 3.00 a.m. that morning, who was also working for Pacific Express but since was no longer working for the company. The defence produced the identity card and driving license of Batumali as exhibit D30. SD6 was asked and he said Batumali asked him to deliver the package at R&R Machap. SD6 said that he did not check and did not know the contents of the package because he knew Batumali. He was referred to exhibit D17 and he said he was not the person who gave the information to the police. Page 17 of 20 [39] He said he called the phone number which was given to him and informed the receiver to pick up the package at R&R Machap. He said he did not give the time for the meeting but left for R&R Machap after he made the call and could not remember the time of his arrival. Upon arrival he saw a white vehicle and he parked in front of this vehicle. He opened the luggage compartment and an Indian man took the package and gave him RM20.00. [40] Reading the appeal record, in particular the evidence of the witnesses for the defence, it was clear there were contradictions in the defence. At the prosecution’s case, it was put that Anandaraj had asked the Appellant to pick up the package from a bus at the R&R Machap on behalf of Anandaraj. The defence called SD3 who confirmed that he heard Anandaraj asking the Appellant to pick up the package at the R&R Machap. It was not a case whether Anandaraj was a real person or otherwise but a case of the defence trying to push the blame on Anandaraj. However, SD6 never mentioned Anandraj or that Anandaraj had asked him to deliver the package at the R&R Machap. He did not say that Anandaraj gave the phone number of the Appellant to him to enable him to contact the Appellant. Instead SD6 testified that it was Batumali who asked him to deliver the package at the R&R Machap and another Malay bus driver gave him the package and phone number of the Appellant at Larkin Central. The testimony of SD6 contradicted the evidence of the Appellant and that of SD3. There was no explanation for these contradictions. [41] Although it was put to SP4 that Anandaraj had asked the Appellant to pick up the package and SP4 had testified that when he arrived at R&R Machap, he saw the Appellant carrying the black Page 18 of 20 plastic bag walking towards the Honda vehicle. However, the Appellant’s version was different. He testified that when the bus arrived and he approached the bus, two persons came down from the bus, identified themselves as police and arrested him but waited for SP4 to arrive who (SP4) instructed the Appellant to take the package from the bus and then handcuffed him. Based on the testimony of the Appellant, his version was that he did not carry the black plastic bag walking towards the Honda vehicle. His testimony as such was never put to the witnesses of the prosecution. Failure to put a crucial defence to the prosecution’s witnesses not only goes to the credibility of the accused but also tantamount to an acceptance of the testimony of the prosecution’s witnesses: Wong Swee Chin v PP [1981] 1 MLJ 212. [42] Further, SD6 who purportedly drove the bus did not testify that two policemen were inside the bus who on coming down from the bus had arrested the Appellant. SD6 did not mention of the presence of any policemen or of SP4 at the R&R Machap. SD6 did not say that SP4 had instructed the Appellant to take the package from the luggage compartment of the bus. These not only contradicted the testimony of the Appellant but confirmed the testimony of SP4 that when SP4 arrived at the R&R Machap, SP4 did not see any bus there except the Appellant carrying the black plastic bag walking towards the Honda vehicle. However SD6 did not explain why Batumali did not give the package and phone number to him since he met Batumali at KL Perhentian earlier in the morning instead of the driver from Starmart Express handing the package and phone number to him at Larkin Central. Page 19 of 20 [43] There was no explanation for these contradictions. The defence did not call Anandaraj. It explained that it could not find him. The defence also did not call Batumali and the Malay driver who purportedly gave the package and phone number to SD6 at Larkin Central to clear these contradictions and doubts. On evidence, the learned trial judge was not plainly wrong in not accepting the evidence of the witnesses for the defence. He was not wrong in dismissing the contention of the defence that Anandaraj was the real trafficker. [44] At the end of the trial, the defence submitted whether it was a case of possession and not trafficking. As stated above, however the defence took inconsistent positions whether the Appellant was in possession of the drugs. Based on his testimony, the Appellant’s version was that he did not carry the black plastic bag but was instructed by SP4 to take it from the luggage compartment of the bus. This was akin to a denial that he was in possession of the drugs. Based on his version, this not only contrasted the contention of the defence that he was a passive or innocent carrier. It also contrasted the position put to the witnesses of the prosecution. On evidence, the Appellant went to the R&R Machap in the Honda vehicle and took the package from the bus. When SP4 arrived there, he saw the Appellant carrying the black plastic bag. Although the Appellant subsequently said that he consumed ‘syabu’ and his urine specimen taken by the police tested positive, the Appellant never contended that he was a drug addict or that the heroin was for his own consumption. SD6 had contradicted the contention of the Appellant that Anandaraj had asked the Appellant to pick up the package from a bus at the R&R Machap. The learned trail judge had dealt with the evidence and he was not wrong to come to the conclusion that the Appellant had failed to rebut Page 20 of 20 the presumption under section 37(da) that he was trafficking in the drugs: see Raman a/l Kunjiraman v Public Prosecutor [2018] Supp MLJ 86. [45] After having scrutinized the record of appeal, there were no merits in the appeal and we had affirmed the decision of the learned trial judge. Therefore the appeal was dismissed. Dated: 20th December 2018 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellant: Hisyam Teh Poh Teik with Charan Singh Messrs. Teh Poh Teik & Co For Respondent: DPP Muhammad Azmi bin Mashad with DPP Mohd Zain bin Ibrahim Attorney General Chambers