NG CHAN KEONG v Pendakwa Raya (M-05(SH)-157-04/2024)

This appeal arises from the conviction of the Appellant, Ng Chan Keong, by the High Court of Malaya at Melaka for trafficking in dangerous drugs, namely methamphetamine weighing 2,782 grammes, contrary to section 39B(1)(a) of the Dangerous Drugs Act 1952 (“the DDA”).

The charge in its original form is reproduced: “Bahawa kamu pada 2.10.2018 jam lebih kurang 5.00 petang, di tepi lorong kecemasan KM215 arah KL-JB Lebuhraya Utara-Selatan di daerah Alor Gajah, di dalam Negeri Melaka telah mengedar dadah berbahaya iaitu jenis Methamphetamine seberat 2,782gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama.”

Being dissatisfied with both conviction and sentence, the Appellant appealed to this Court.

Having heard learned counsel for the Appellant and learned Deputy Public Prosecutor for the Respondent, and having carefully considered the entire record of appeal, the notes of proceedings, the exhibits, the authorities cited and the written submissions of both parties, we unanimously dismissed the appeal and affirmed the conviction and sentence imposed by the High Court.

We now set out our reasons.

The prosecution case was principally established through the evidence of SP5, SP7, SP10 and SP11 together with the scientific evidence of SP3 and SP4.

On 2 October 2018, SP5 and SP7 were performing patrol duties along the Pedas–Ayer Keroh sector of the North-South Expressway. SP5's role was to monitor vehicle particulars through the MCOPS system whilst SP7 drove the patrol vehicle.

At approximately KM217, SP5 observed a silver Mercedes-Benz SLK200 bearing registration number WBX 9122 travelling in the fast lane and flashing its headlights at vehicles ahead. Upon conducting an MCOPS check, SP5 discovered that the registered vehicle corresponding to registration number WBX 9122 was recorded as grey rather than silver. This discrepancy immediately aroused suspicion.

SP5 and SP7 attempted to stop the vehicle by activating the siren and signaling with a red flag. Instead of stopping, the driver accelerated. A pursuit then ensued involving another patrol vehicle occupied by SP10 and his colleague.

The chase continued until KM215 where the vehicle finally came to a stop at the emergency lane. SP5 approached the vehicle and found that the Appellant was the sole occupant. After examining the Appellant's identification documents, SP5 directed him to open the boot of the vehicle.

The Appellant initially claimed that the boot could not be opened because it was defective. However, after being pressed, he retrieved a key from the driver's side compartment and opened the boot. Inside the boot was a cardboard box bearing the words "Kong Guan". The box was wrapped in transparent plastic and sealed with adhesive tape. Upon being instructed by SP5, the Appellant opened the box.

The box contained four green packets bearing Chinese characters. One packet was opened in the presence of the Appellant and SP5 observed compressed crystalline material which he immediately suspected to be dangerous drugs. The Appellant was arrested on the spot.

Subsequent analysis by SP3 confirmed that the contents of the four packets contained methamphetamine with a net weight of 2,782 grammes. The chemist's report was admitted as Exhibit P16. A further search of the vehicle revealed a white bag containing approximately RM100,000.00 in cash.

Investigations conducted thereafter revealed that the vehicle driven by the Appellant was in fact a cloned vehicle and that the chassis number had been tampered with. SP8 and SP9 confirmed that the genuine Mercedes-Benz bearing registration number WBX 9122 remained in Kuala Lumpur on the material date.

The exhibits were marked, sealed, handed over to the investigating officer SP11, secured in a locked cabinet, photographed, repackaged and subsequently delivered to the Chemistry Department for analysis.

The Appellant elected to give evidence on oath.

His defence was essentially that he was merely an employee of one "SD2", a person allegedly involved in vehicle brokerage activities. According to the Appellant, SD2 had instructed him to drive the vehicle from Genting Highlands to Johor Bahru. He claimed that he had no knowledge of the contents of the boot and had not inspected the vehicle before commencing his journey.

The Appellant further asserted that he was merely transporting money amounting to RM180,000.00 and SGD9,300.00 for delivery to a woman known as Amy. He denied deliberately failing to stop for the police and maintained that he did not realise that the police vehicle was attempting to stop him. He also denied reluctance in opening the boot and disputed the prosecution's account regarding the search. SD2 was called as a defence witness.

SD2 claimed that the Appellant worked for him in relation to vehicle transactions. He further alleged that the seized Mercedes-Benz had been pledged as collateral by an individual named James in respect of a money-lending transaction.

Significantly, SD2 admitted that he did not know James's full identity and had obtained no proper documentation establishing ownership of the vehicle. His evidence on the existence of loan documentation was inconsistent and emerged only during cross-examination.

The learned High Court Judge found SP5, SP7, SP10 and SP11 to be truthful and reliable witnesses.

The learned Judge rejected the Appellant's account that he was unaware of the police pursuit. The learned Judge further found that the Appellant's explanation concerning SD2, the vehicle, the large amount of cash and the circumstances in which he came into possession of the vehicle was inherently improbable.

The learned Judge concluded that the Appellant had possession, custody and control of the dangerous drugs found in the vehicle. Having found possession established, the learned Judge invoked the statutory presumption of trafficking under section 37(da) of the DDA.

The defence was rejected as an afterthought and incapable of rebutting the statutory presumption on a balance of probabilities.

Before us, learned counsel for the Appellant advanced four principal complaints as follows:

the learned Judge failed to elect between direct trafficking under section 2 DDA and presumed trafficking under section 37(da) DDA;

possession and knowledge were not proved;

the chain of custody was defective; and

the defence was not properly evaluated. Issue 1: Whether the Learned Judge Failed to Elect Between Section 2 and Section 37(da) DDA [26] This formed the central plank of the Appellant's appeal. Reliance was placed on Jorge Crespo Gomez v PP [2020] 8 CLJ 292, Ugonna Philip Nwankwo v PP [2016] 2 CLJ 247, Seyedalireza Seyedhedayatollah Ehteshamiardestastani v PP [2014] 4 CLJ 406, Masih Perviaz v PP [2022] 3 CLJ 230 and Ahrjun Chandran v PP [2022] 1 LNS 1883. [27] The Appellant submitted that the learned Judge simultaneously relied on section 37(da) and section 2 DDA and thereby failed to identify the legal basis of conviction. We are unable to agree. Having carefully considered the record of proceedings, we find no merits in this complaint. [28] The ratio emerging from the case Jorge Crespo Gomez (supra) is not that every reference to facts capable of amounting to trafficking under section 2 DDA automatically invalidates reliance upon section 37(da) DDA. Rather, the Federal Court emphasised the necessity for the trial judge to identify clearly the basis upon which trafficking is established so that the accused knows the burden he is required to discharge. [29] Similar concerns arose in Ugonna Philip Nwankwo and Seyedalireza (supra) where the trial courts vacillated between alternative findings and failed to indicate whether possession and trafficking were established by evidence or by statutory presumptions. [30] We are of the considered view that those cases involved genuine ambiguity. In the present appeal, there was no such ambiguity. The record demonstrates that the learned Judge expressly invoked the presumption under section 37(da) DDA when calling upon the Appellant to enter his defence. In those circumstances, the legal position is clear; once possession of drugs had been established and statutory threshold was made, the presumption of trafficking arose thereby placing upon the Appellant the burden of rebutting that presumption on a balance of probabilities. We find that the learned Judge consistently proceeded on the basis that possession had been established and that trafficking arose through the operation of the statutory presumption. [31] The reference in paragraph [59] of the High Court judgment that the Appellant was "transporting" the drugs was merely descriptive of the surrounding facts of the case rather than an independent or alternative legal basis for the conviction. It was not a separate legal foundation for conviction. It was to us, a passing remark and does not form part of the ratio of the case. [32] We therefore find that the authorities relied upon by the Appellant are distinguishable on their facts. The learned Judge made a clear election and affirmative finding that the presumption of trafficking under section 37(da) DDA had arisen. In the circumstances we find there is no misdirection occurred and that the Appellant was fully aware of the burden placed upon him and suffered no prejudice whatsoever. Possession, Knowledge and Control [33] We next consider whether possession and knowledge were proved. Possession in drug trafficking cases is not confined to physical handling. It encompasses custody, control and knowledge. [34] The Appellant was the sole occupant and driver of the vehicle. The boot key was retrieved by the Appellant himself. The Appellant had exclusive control over the vehicle. The drugs were concealed within the boot of that vehicle. More importantly, the surrounding circumstances pointed strongly towards knowledge. The Appellant failed to stop despite visual signals, flashing lights and sirens. The pursuit extended for approximately two kilometres and when questioned, he claimed not to have noticed the police. [35] We are of the considered view that the learned Judge correctly rejected this explanation. It is difficult to conceive how a motorist could remain unaware of two police patrol vehicles signaling him to stop over such a distance. The evidence shows that the Appellant was driving a relatively low profile vehicle, whereas the patrol vehicles driven by SP5 and SP7 were larger Mitsubishi patrol vehicles. The attempt to stop the Appellant was not limited to the activation of flashing lights. The evidence reveals that SP5 lowered his window and signaled the Appellant using a red flag while the police sirens were activated. In the light of the flashing lights, sirens, visual signs and sustained pursuit over a considerable distance, it is difficult to accept the Appellant was wholly unaware that the police were attempting to stop him. [36] The Appellant was also initially reluctant to open the boot. His explanation that the boot was defective was contradicted by the fact that he was able to produce the key and open it shortly thereafter. [37] The conduct of an accused person immediately before arrest may properly be considered as circumstantial evidence of guilty knowledge. Taken cumulatively, we find that these circumstances established knowledge beyond reasonable doubt. Chain of Custody [38] The Appellant further challenged the integrity of the exhibits. It was argued that SP5 was not a narcotics officer and that certain procedures normally undertaken by narcotics personnel were absent at the point of seizure. It was submitted that SP5 did not record markings on the drug packets nor documented the gross weight in a manner typically undertaken by narcotic officers. We find no merit in this complaint. [39] The law does not require perfect handling of exhibits. What is required is reasonable assurance that the exhibits analysed by the chemist are the same exhibits recovered from the accused. What is also material is the fact that the four packets of drugs were recovered from the vehicle driven by the Appellant. The Appellant was asked to tear open one of the packets following which markings were made at the Alor Gajah District Police Headquarters. The investigating officer subsequently repacked the exhibits before handing them over to SP3 at approximately 4.30pm after the initial recovery earlier that afternoon. All the relevant witnesses who handled the exhibits were called to testify and the exhibits were properly identified in court. The chemist analysed sealed exhibits bearing corresponding markings and we find that the minor tear in one packet did not undermine the identity of the exhibits and do not cast any doubt on the identity and integrity of the exhibits. The weighing process was also conducted using calibrated equipment thereby ensuring the reliability of the measurement obtained. Significantly, when the Appellant was called to enter his defence, the four packets of drugs were confirmed to be the very packets recovered from the vehicle he had been driving. We are therefore satisfied that the chain of custody remained intact and no reasonable doubt arises in respect of the identity or integrity of the drug exhibits. Evaluation of the Defence [40] The Appellant's account depended almost entirely on SD2. [41] The learned Judge devoted considerable attention to SD2's testimony and provided cogent reasons for rejecting it. SD2 who is the Appellant’s employer claimed to be involved in money-lending activities. He testified that his normal practice was to obtain identification documents, loan particulars and supporting documentation from borrowers. Yet in relation to the alleged borrower James, none of those safeguards was observed. According to SD2, a vehicle of substantial value was accepted as collateral from a person whose full identity he did not know. No ownership documents were obtained. No meaningful verification was undertaken. [42] Only during cross-examination did SD2 introduce the existence of a supposedly lost document. The learned Judge was fully entitled to regard this evidence as contrived. The defence narrative also failed to explain convincingly why the Appellant was entrusted with a cloned vehicle, a substantial quantity of cash and a journey extending from Genting Highlands to Johor Bahru. [43] The Appellant's conduct following his arrest bears the hallmarks of a selective and self-serving narrative. Although he lodged a police report (D56) almost two months later, the report focused exclusively on an alleged discrepancy in the amount of cash seized. Notably absent, was any mention of what he now advances as the very foundation of his defence; that the money belonged to SD2 and was being transported for delivery to him. Such a glaring omission is inconsistent with the conduct of an innocent person and substantially erodes the credibility of his belated account. [44] It is a settled principle that the burden of proof in a criminal trial rests throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt in respect of the charge preferred against him. Pursuant to section 182A of the Criminal Procedure Code (“CPC”), the Court is required, at the conclusion of the trial, to consider the entirety of the evidence adduced and determine whether the prosecution has discharged that burden. Where the Court is satisfied that the charge has been proved beyond reasonable doubt, a conviction must necessarily follow. [45] It is equally well established that an accused person is not required to prove his innocence. It is sufficient if the defence succeeds in raising a reasonable doubt as to the prosecution’s case, thereby entitling the accused to an acquittal (see Mohammad Radhi Yaakob v PP [1991] 3 CLJ 2073). [46] In Ghasem Hozouri Hassan v PP [2018] 6 CLJ 133 at p. 158, the Federal Court clarified the proper application of the Radhi direction. The Court held that a trial judge must consider whether the defence, even if not accepted, nevertheless raises a reasonable doubt in the prosecution’s case. Such consideration need not be expressed in any rigid or formulaic manner, provided that the judgment demonstrates that the substance of the defence has been duly addressed. As observed by the Supreme Court in Mohammad Radhi Yaakob (supra), “To satisfy this test it is not so much the words used by the judge, but rather the actual application of the test to the facts of the case that matters.” [47] In the present case, although the learned Judge did not expressly state that the defence had failed to raise a reasonable doubt, a fair and holistic reading of the grounds of judgment demonstrates that the correct legal approach was adopted. The finding that the prosecution had proved its case beyond reasonable doubt was reached only after a careful and comprehensive evaluation of the evidence, including the defence advanced by the Appellant. [48] The grounds of judgment reveal that the learned Judge specifically considered the defence contention that Ah Ben and/or James were the actual traffickers. Having examined the evidence in its totality, His Lordship found that theory to be untenable, having regard to its inherent improbabilities and its inconsistency with the objective evidence adduced at trial. [49] The learned Judge undertook a detailed examination of the defence case and identified the material contradictions, improbabilities, and inconsistencies therein. His Lordship further assessed those aspects against the objective evidence before the Court. Such an exercise constituted the requisite judicial evaluation of the defence. In those circumstances, the finding that the prosecution had established its case beyond reasonable doubt necessarily carried with it the conclusion that the defence had failed to raise any reasonable doubt. The requirements of section 182A of the CPC were therefore duly satisfied. [50] Accordingly, this Court is satisfied that the learned Judge correctly appreciated and applied the burden and standard of proof. No misdirection in law or principle has been demonstrated in this regard. We unanimously find that the learned Judge was correct in concluding that the defence was inherently improbable and we find no basis to interfere with the learned Judge’s evaluation on the defence. Conclusion [51] Upon our own evaluation of the evidence, we are satisfied that the prosecution established possession, knowledge and custody of the dangerous drugs beyond reasonable doubt. The quantity of methamphetamine recovered triggered the statutory presumption of trafficking under section 37(da) of the DDA. The Appellant failed to rebut that presumption on a balance of probabilities. [52] The findings of fact made by the learned Judge were amply supported by the evidence and disclose no appealable error. The conviction is therefore safe. Accordingly, the appeal is dismissed and the conviction and sentence imposed by the High Court are affirmed. Dated: 15 June 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS:

Subash A/L Ramasamy

Chuah Shyue Chien [Arissa Tan, Chien & Co. (Johor Bahru)] Counsel for the Respondent:

Ng Siew Wee [Deputy Public Prosecutor