Pragasam a/l Shger v Pendakwa Raya (A-05(SH)-132-02/2018)

(a) 16 transparent plastic packets filled with substance suspected to be heroin;

(b) A plastic container filled with powdery substance suspected to be heroin together with a green spoon; 4

(c) 2 transparent plastic packets believed to contain methamphetamine; and

(d) 2 tin of boxes in blue and white colour. Each contained 25 transparent plastic packets contained substance suspected to be heroin. All together there were 50 of such plastic packets. [6] There were also other items found, namely a digital scale, a pack of empty plastic packages and a sealer found on the table inside the 1st room. The appellant’s passport and bank account books were found inside the top drawer of the table. [7] The appellant and the items found in the house were brought to IPD Ipoh for further investigation and a police report was subsequently lodged by SP 5. The items found and the appellant were later handed over to the Investigating Officer, SP 6. [8] The suspected drugs items were sent to the chemist for analysis by SP 6, and the chemist report showed that all the suspected substances were dangerous drugs as defined in the DDA and found to contain 101.2 grams heroin and 8.9 grams of monoacetylmorphines (combined weight of 110.1 grams) and 36.6 grams of methamphetamine. THE FINDINGS OF THE LEARNED TRIAL JUDGE AT THE END OF THE PROSECUTION’S CASE: [9] The appellant was found to be alone in the house at the time of the raiding and he was found where the drugs were openly laid out on the table in the 1st room together with all the apparatus and paraphernalias 5 associated with drugs trafficking. In addition the appellant’s personal documents, namely his passport and bank accounts books were also found inside the table’s drawer. [10] The appellant was found to be in custody and control of the drugs in question. Thus, the presumption of possession was invoked by the learned trial Judge under section 37(d) of the DDA. [11] Due to the weight of the drugs, the learned trial Judge also invoked the presumption of trafficking under section 37(da)(iiia) of the DDA. THE CASE FOR THE DEFENCE: [12] The said house was occupied by his friend, “Seelan”. The appellant contended that Seelan had called him and asked him to come over to the house as he wanted to repay the appellant the RM2000.00 that he owed him. Whilst Seelan and his friend left the house to get the money, Seelan told the appellant to wait at the house. Before leaving, Seelan entered the 1st room and closed the door. [13] When the police raiding team entered the house, the appellant was in the hall of the house. The documents seized, namely the bank books, passport of the appellant were found inside a “PUMA” sling bag at the hall. There was also an “Air Asia” ticket itinerary to Vietnam (D39) inside the bag. The appellant said that he brought the passport and the itinerary to convince Seelan that he needed the money for his travel as Seelan has always been stalling and giving excuses when the appellant demanded back for his money. 6 [14] The drugs and the items found by the police were not found on top of the table as alleged by SP 5 but inside the 3 drawers of the table. [15] The appellant denied knowing or ever met with SP 4 at the house. [16] 3 vehicles were seized from the premises which are an Iswara Aeroback registration JKN 6527, a Yamaha 135L registration number AKH 7670 and a Honda Wave motorcycle registration number JMJ 3767. All the 3 vehicles were seized under the Dangerous Drugs (Forfeiture of Property) Act 1988. In cross examination of SP 5, SP 5 said that he did not know that the Honda Wave motorcycle belonged to Seelan. An electric bill D41 and water bill D42 relating to the house were produced and they did not bear the name of the appellant. [17] SD 2, Wong Lok Hai who is the Assistant Registrar of the Lower Court Ipoh confirmed that one “Thana Silan a/l Tajamuniady” had been charged for traffic offences involving a motorcar JKN 6527 for driving with an expired motor vehicle license and without a valid insurance. The charge sheet was marked as D44. The fines for the offence had been paid. As for the motorcycle JMJ 3767, Thana Silan was charged with similar offences committed on 28.1.2016 and the fines were accordingly paid. The charge sheet was marked as D45. Both vehicles were at the house at the time of the raid and the police had seized the same. [18] SD 3, Nalini a/p Narayanasamy testified that she had rented the house to Seelan since 1.5.2015. She confirmed that she had never seen the appellant before at the house. The rental was RM500.00 per month. Every time she visited the house, Seelan was always alone. The last visit which she made to the house was in April 2016. SD 2 also confirmed that 7 the 1st room was occupied by Seelan. SD 3 remembered the motorcycle number of Seelan as JMJ 3736 and the car number of Seelan as JKN

SD 3 confirmed that she had only seen Seelan in the house at the time when she visited the house. THE FINDINGS OF THE LEARNED TRIAL JUDGE AT THE END OF THE DEFENCE CASE : [19] There is no reason for the court to doubt the testimony of SP 5 as to the circumstances of how the drugs were found. [20] SP 5 denied that a “PUMA” sling bag was found at the hall and that D39 was found in the sling bag together with other documents seized. The court found that there was no reason for SP 5 to lie on this. [21] The appellant testified in cross examination that he booked the Air Asia ticket through Seelan as his cousin worked for a ticketing agent. Therefore, Seelan already knew that the appellant was going to Vietnam and as such there was no need for the appellant to convince Seelan by bringing his passport and the itinerary as claimed. The court found that D39 and the PUMA sling bag were not in the house at the time of the arrest. [22] There was no reason for SP 4 to lie. The court disbelieved the appellant when he said that he did not know SP 4 at all. [23] The mere existence of Thana Silan or Seelan does not detract from the fact that: 8

(i) the appellant was in possession of the drugs at the time of the arrest;

(i) no evidence was adduced to indicate that it was the appellant who had the care and management of the said house;

(i) Chan Ming Cheng v PP [2002] 3 MLJ 733 which had imposed a sentence of 20 years imprisonment and 12 strokes for 154.3 grams of heroin. Here the accused had 2 prior convictions of similar nature;

(v) Teoh Chin Hwa v PP [2000] 1 MLJ 687 where the accused pleaded guilty to an offence of possession of 156.3 grams of monoacetylmorphines and the Court imposed a sentence of 28 years imprisonment and 10 strokes of whipping. [32] As for the 2nd charge under section 12(2) which was punishable under section 39A(2) of the DDA, at the hearing of the appeal before us, as both parties agreed that there has been no appeal on the 2nd charge by the prosecution, we therefore maintained the conviction and sentence imposed by the learned trial Judge on the 2nd charge. Signed by: Zabariah Mohd Yusof Judge Court of Appeal, Putrajaya. Date: 29.1.2020 12 COUNSEL: Ranjit Singh for the Appellant [Messrs. Ranjit Gill & Co] TPR Tetralina binti Ahmed Fauzi for the Respondent [Attorney General’s Chambers]