Puan Nik Rabi‘atul ‘Adawiyah Binti Soupy and Puan Navini Rajikumara v SARAVANAN A/L MILERAVANAN (CB – 83D – 02 – 11/2017 (M))

Substances seized were dangerous drugs as being specified under the DDA (identity of the drugs).

The accused has in his possession dangerous drug to wit cannabis.

The accused has mes rea possession over the impugned drug.

There was no break in the chain of evidence. [ 15 ] In deciding whether the given elements have been proven, I will consider and decide each of the element in seriatim. [ 16 ] The first issue is regarding the identity of the drugs. From the facts of the case, PW5 has seized plastic packets (P7) containing slabs of dried leaves from the accused’s pocket. The packets and its contents were sent to PW3 for analysis. After a physical, chemical and confirmatory examination on the substance retrieved from P7, PW3 concluded that they contained cannabis. Her finding was recorded in a report at P9. [ 17 ] According to prosecution, the evidence of PW3 as an expert witness and in reference to the reports prepared by her at P9 helped to illume the identity of the drugs retained from P7. Whilst prosecution has managed to hitch their wagon to the evidence of PW3, defence counsel took the field by merely denying that police 6 has seized three transparent plastic packets (P7 (A – C) containing cannabis from the accused’s trouser. [ 18 ] In this case, PW3 is a government chemist. She has performed physical, chemical and confirmatory examination on the substances retrieved from P7 and concluded her findings as to the elementary nature and identity of the substance in a chemist report at P9. Given the qualification of PW3 to give evidence as a chemist and that her expertise was not challenged by the defence, the Court was of the considered opinion that the evidence of PW3 as a chemist is incapable of erring. All things considered, I am satisfied that PW3 has given infallible evidence as to the identity of substances retrieved from P7 which proved P7 (A – C) to have contained cannabis as defined in the Dangerous Drugs Act 1952. For that her evidence is accepted by this Court (Public Prosecutor v. Lin Lian Chen [1990] 2 CLJ Rep 746; Munusamy Vengadasalam v. PP [1987] CLJ Rep 221; PP v. Mohd Shahiqbal Baharuddin [2019] 1 LNS 1569). [ 19 ] Moving to the second element i.e. whether the accused has in his possession the impugned drugs. For the said element, it will be assayed collectively with the issue on mens rea over the impugned drugs. [ 20 ] Prosecution submitted that the accused has custody and control over the three transparent plastic packets (P7 (A – C) which were found inside his pocket. By applying the presumption under section 37(d) of the DDA, it is submitted that the accused is deemed to have known the nature of such drugs especially having taken the fact that cannabis has a very distinct smell. Confronted with 7 overwhelming evidence on actus reus and mens rea element presented by the prosecution, defence merely submit that prosecution has failed to prove that the accused has custody, control, possession over the drugs seized. [ 21 ] From the facts of the case, the accused was charged with an offence of having in possession cannabis following the seizure of three transparent plastic packets (P7 (A – C) containing cannabis inside a pocket of a trouser worn by him. Accordingly, facts can be proved either by testimony of the witness which tells, exhibits which shows or elseways inferred from the surrounding circumstance. For a fact to have incriminating value, both the actus reus and mens rea must be present. [ 22 ] In this case, the plastic packets (P7 (A – C) containing cannabis were found inside a pocket of a trouser worn by the accused. Accordingly, having the capacity to deal with an item (including its contents) to the exclusion of another person is a propitious characteristic of possession under the law as being articulated in Leow Nghee Lim v. Reg. [1955] 1 LNS 53 and Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17. The same dogma has been espoused and kudized in various cases and to name few: PP v. Mohd Shahiqbal Baharuddin [2019] 1 LNS 1569, PP v. Denish Madhavan [2009] 2 CLJ 209, Samsuri Tumin v. PP [2011] 1 LNS 834). Applying the concept from the above dictum, I am of the opinion that the accused has actual possession over P7 and its contents which were found inside his pocket. [ 23 ] As to the element of knowledge over the impugned drugs, prosecution submitted that as accused has custody and control 8 over the three transparent plastic packets (P7 (A – C) which were found inside his pocket, presumptive mens rea follows. By applying the presumption under section 37(d) of the DDA, it is submitted that the accused is deemed to have known the nature of such drugs especially having taken the fact that cannabis has a very distinct smell. [ 24 ] As for the element of animus possidendi, I am on bounden duty to keep my finding on the right path and not be swayed by confusion regarding direct or presumed mens rea. For that I am guided by the principle enunciated in the case of Nguyen Quoc Tuan v. PP [2016] 1 LNS 1536 and Low Kai Gie v. PP [2019] 1 LNS 1807 (see also Khalid Mehmood v. PP & Another Appeal [2020] 1 CLJ 683, PP v. Khee Thuan Giap [2017] 1 LNS 1838). Accordingly, the Court of Appeal in the said cases dictate that where actual possession is proved, there is no necessity to invoke presumption of knowledge under section 37 (d) of the DDA (see also Parlan Dadeh v. PP [2009] 1 CLJ 717). As P7 and its contents were found inside the accused’s pocket, it evinced that he has actual mens rea possession of the drugs. [ 25 ] As an addition, PW5 in his testimony stated: “Semasa rampasan, tiga peket plastik ini ada mengandungi ketulan daun mampat dedaun kering disyakki dadah jenis ganja. Saya syakki ia adalah ganja sebab saya cam melalui bau”. To the said statement, the accused simply denied that he has knowledge of the cannabis retrieved from his pocket. Insofar as circumstances are concerned, prosecution did a real hatchet job against the ploy put up by the accused. It was rightly pointed out that, with a very distinct smell of cannabis emitting from P7, it is implausible for the accused to 9 say that he does not know what was inside his pocket. Over long hauled debate on mens rea possession, the Court in Adel Zarabi v. PP [2014] 1 LNS 1783 and Hamidi Bin Mohd Isa & Anor v. Public Prosecutor [2013] 3 MLJ 481 had made the verdict stick by taking judicial notice of the strong smell of cannabis to show that a person has knowledge of the drugs in his possession. Without resolving to the presumptive mens rea and applying the principle enunciated in the above and in reference to the case of Ezeamama Chijioke Chidi Darlington v. PP [2020] 1 LNS 8, I am of the opinion that the accused has knowledge of the drugs found on his person i.e. inside a pocket of a trouser worn by him. [ 26 ] Pummeled by the issue of failure to support the case with finger print and DNA test, prosecution make reference to the case of Tan Lay Hwa v. PP [2016] 1 LNS 507 as well as Gunalan Ramachandran & Ors v. PP [2004] 4 CLJ 551. It is argued that on its evidentiary nature, the tests (fingerprint and DNA test) were merely corroborative and given the strength of evidence adduced orally through the witnesses, prosecution bade the Court to savor all evidence that has been proved through the witnesses, whose testimony are believable, consistent and corroborative to each other. [ 27 ] In this case, the accused was charged based on the seizure of three transparent plastic packets (P7 (A – C) containing cannabis which were found inside a pocket of a trouser worn by him (P15). The accused was positively identified by the witnesses and a cloth fitting of the trouser (P15) fits the accused perfectly. Asides than that, there was no incriminating evidence found on the body of two other arrestee. In my considered opinion, where the identity of a 10 culprit is clearly proven, DNA and fingerprint test are merely a nickel and dime in this case as compared to the overall evidence presented by the witnesses (PP v. Khee Thuan Giap [2017] 1 LNS 1838). [ 28 ] A force with equal strength is the dicta passed in PP v. Ni Komang Yuningsih [2017] 1 LNS 720 whereupon Mokhtarudin Baki JCA stated the following: “The DNA evidence or fingerprint lifting are only corroborative in nature when all other important ingredients of the offence, i.e. custody and control, and knowledge are proven”. Consequently, after weighing the issue raised by counsel against the evidence presented before the Court, I am of the considered opinion that prosecution won the argument to the nth degree. [ 29 ] Another point worth mentioning is the chain of evidence. After seizing the items, PW5 has them penned in the search lists (P17). Upon arriving at the police station, he made his markings on the items. All items seized were kept under his custody until they were handed over to PW6. After receiving the items seized, PW6 made her markings on the said items. She kept the items under lock and key inside a deedbox. Only she has the access to the deedbox. The drugs were then sent to PW3 to be analyzed. PW3 too, managed to identify the markings on the exhibits. During trial, both PW5, PW6 and PW3 had positively identified the markings on the items. The exhibits produced during trial were the same items seized with the same marking as being as stated by PW5, PW6 and PW3. In the premise, I also hold that there was no break in the chain of evidence from the time the drugs were seized, tested and analyzed until production in Court as handled by PW5, PW6 and PW3 following the Federal Court case of Su Ah Ping v. Public 11 Prosecutor [1979] 1 LNS 100 (see also Prabhagaran Kegobalu v. PP [2019] 1 LNS 673, Shahrizal Abdul Ghani v. PP [2014] 1 CLJ

[ 30 ] Counsel also blew the whistle on PW3’s findings when she decided to weigh three transparent plastic packets (P7 (A – C) together, not separately. Her action, according to counsel, has led prosecution case to doubt as the weight of each packet was not verified. Despite not agreeing to her action, defence has not pointed out to Court why her action of weighing P7 (A – C) together has caused her physical, chemical and confirmatory examination on the substance retrieved from P7 to be inherently incredible. [ 31 ] PW3 is a government chemist, she is both academically qualified and fit to do all test on the substance retrieved from P7 and she has given her reason for weighing P7 together. As the law recognizes her to be an expert (PP v. Steven Lagang [2019] 1 LNS 1541), I see no reason of not accepting her evidence, furthermore, what is good for the goose is good for the gander. It follows therefore, chemical analysis conducted by her and what method used by her are not open to any question (Munusamy Vengadasalam v. PP [1987] CLJ Rep 221). [ 32 ] In every aspect of evidence presented by the prosecution, in my considered opinion, prosecution has managed to establish prima facie case against the accused. The accused was called to enter defence to the charge framed against him. After the three alternatives consequent upon such finding were explained to the accused, he elected to give sworn evidence. 12 DEFENCE CASE [ 33 ] The accused gave sworn evidence and called upon four other witness to support his defence i.e. Marutha Muthu (DW2), Devan (DW3), Mariamma (DW4) and Janaki (DW5). [ 34 ] The accused testified that on the said day, DW3 and he went to the house to visit DW2. All three of them were at the kitchen, doing cannabis. Police came and DW2 was arrested at the front of the house, subsequently DW3 and the accused were arrested at the kitchen. A quick frisk by the police found nothing on DW2 and DW3 but police found two packet plastic containing cannabis inside his pocket. After they were handcuffed, a man came out from the kitchen bringing with him another packet of cannabis. Later, they were taken to his house at M573, Lot 53, Jalan Karak by a van. Only DW2 and he were brought into the house. Police made a search inside the house and found another packet of cannabis. He denied the packet was his. During cross examination, the accused admitted wearing a jeans (P15) where packets containing cannabis were found. He also admitted attesting his signature in Borang Bongkar (P17) which specificated three packets plastic containing cannabis were found inside a pocket of a jeans (P15) worn by him. [ 35 ] The second witness for defence was DW2. He lived at the house. On the said afternoon, he said he went outside the house to pick up a call whilst the accused and DW3 were inside the house. Police came and he was arrested followed by the accused and DW3. He didn’t see any packet plastic being confiscated from the 13 accused’s pocket. Later, all three of them were taken to Saravanan’s house by a van. Only he and the accused were brought into the house. Police made a search inside the house and found another packet plastic containing cannabis. When asked by the DPP, he denied that he was “menghisap dadah” during the raid. He was elsewhere when police made body search on the accused and found plastic packets containing cannabis. After the arrest, all three of them were taken to Saravanan’s house. [ 36 ] DW3 was the third witness called. He said on the said date, he was at house No. 10, Taman Pinggiran Netas, Bt 3, Jalan Karak with the accused and DW2 when police made a raid on the house. Initially DW2 and the accused were arrested as they were coming out from the back door of the kitchen. He was arrested later inside the house. He admitted that the packet containing cannabis found on the table inside the house was his. He was charged for the said packet and pleaded guilty. He was ordered to stay inside the house whilst the DW2 and the accused were taken outside the house. Despite being inside the house and affirming not observing body search conducted on the accused, he claimed seeing the police seizing two packet plastic containing cannabis from the accused’s pocket. Afterward, all three of them together with five policemen rode a car to Saravanan’s house. Only the accused and DW2 were taken inside the house. During cross examination, he said he was arrested inside the house. He admitted that he did not see where police confiscated the packet plastic from Saravanan. 14 [ 37 ] DW4 lived next to the accused’s house. She saw PW5 took the accused and DW2 inside the house. [ 38 ] DW5 was the final witness called by the defence. She was the wife of the accused. On the said date, police came to her house. She claimed to have stayed at the yard (“halaman rumah”) with PW5, the accused and DW2 whilst the other policemen searched her house. After ½ hour, she was told that police have found a packet of plastic containing cannabis inside the house. During cross examination, she said she was at the living room when police were searching her house. When asked, she admitted to be willing to do anything she could to save the accused. [ 39 ] All in all, the accused said that prosecution failed to prove a case was made against him beyond reasonable doubt. He prayed for his acquittal by denying culpability to the charge framed against him, refuting that P7 (A-C) were seized from his pocket. DUTY OF THE COURT AT THE CLOSE OF DEFENCE CASE [ 40 ] At the conclusion of the trial, the Court shall consider all evidence adduced before it and shall decide whether prosecution has proved its case beyond reasonable doubt. If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it. If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal. There are multitudinous of cases on the duty of the Court at the end of defence case such as the encapsulated in the time- 15 honored decision of Mat v. Public Prosecutor 1963 29 MLJ 263 and Public Prosecutor v. Mohd Radzi Bin Abu Bakar [2005] 6 MLJ

FINDINGS OF THE COURT AT THE CLOSE OF DEFENCE CASE [ 41 ] After rounds of attack by the counsel, prosecution managed to plow their case against the accused with great strength. Grappled with strong evidence of actus reus and mens rea, the accused chose to deny the charge by stating that P7 (A – C) were not his for he claimed to be having in his possession two packet plastic of cannabis. To support his claim, he called DW2, DW3, DW4 and DW5 in support. [ 42 ] Before dwelling into the defence raised by the accused, I am going to bring to notice my intention of embracing all of the findings that I made at the end of prosecution case. [ 43 ] Taken the above fact, I now come to my judgment at the end of defence case. In fulfillment of the Court’s duty at the end of defence case, I evaluated the strength of evidence presented by prosecution on the basis of maximum evaluation by putting it to test against the testimony given by the accused and all witnesses called by the defence. [ 44 ] Whilst prosecution stated that three packet plastic containing cannabis were seized from the accused’s pocket, defence on the other hand claimed that there were only two packet plastic containing cannabis seized from the accused’s pocket. Plainly the version presented by the prosecution and defence were in total 16 conflict with each other. Faced with two conflicting evidence, I am compelled to adopt the test stipulated in Mat v. PP [1963] 1 LNS 82 in order to verify which version is more credulous than another. [ 45 ] In my mind, I find prosecution witnesses as credible and truthful. Not only they remained stoic and consistent in giving evidence throughout trial, their evidence was also supported by documentary evidence such as Borang Senarai Geledah (P17) which itemized every item seized from the accused including three packet plastic containing cannabis. Though a search list cannot be taken as admission of guilt, it gives evidence of item seized from the accused. Abdul Wahab Patail J in PP v. Kesavan Petchayo @ Balakrishnan [2000] 1 LNS 235 is quoted as saying: “A search list is an acknowledgement of the items taken by a police officer during a search”. Thus, when the accused attested his signature in P17, he acknowledged that there were three packets plastic containing cannabis seized from his pocket. [ 46 ] Perusing the evidence of both PW5 and the accused, it came to my sense that PW5’s version was more credible as it was backed by documentary evidence such as search list and police report whilst the accused’s testimony was not backed by any and to boot his (the accused) evidence, in many material aspects, contradicts the evidence of DW2 and DW3. For instance, the accused said: “Semasa penggeledahan, Maruta Muthu (DW2) dan Devan (DW3) ada bersama saya pada masa itu. Mereka nampak dua bungkusan dadah sahaja dikeluarkan”. However, when DW2 gave evidence, he said: “Saya tidak nampak polis ambil apa-apa dari poket seluar Saravanan” and when DW3 gave evidence, he said: “Masa polis 17 check Saravanan (the accused) dan Baloo (DW2), saya tidak nampak sebab saya ada dalam rumah”. [ 47 ] If points in the above are insubstantial to prove my findings, I would also highlight the fact that there exists no room for PW5 to fabricate the evidence when preparing the search list. The search list at P17 was prepared subsequently after arrest and was handed over to the accused tout de suite for him to scrutinize before attesting his signature to it, hence there lies no room to fabricate evidence in the search list. The Court of Appeal in Ho Kok Leong v. PP & Another Appeal [2019] 1 LNS 451 stated that when there is nothing inherently probable in the evidence and in the absence of any motive to concoct evidence, the evidence of a police officer who is merely discharging his duty should be accepted. I believed there lies no motive for PW5 to concoct evidence nor does has he any reason to fabricate evidence against the accused. The above perlustration proves that PW5 evidence to be fair dinkum and for that reason the Court felt more won over towards credence in PW5 (PP v. Sanjay Singh Chauhan [2017] 1 LNS 424). [ 48 ] Despite being assailed persistently by the counsel, prosecution witnesses were on the up and up as their evidence remained unshaken all throughout trial. However, defence went downhill all the way the moment DW1, DW2 and DW3 gave evidence. There were many a time when they snarled on their own word. For instance, the accused and DW3 in their statement admitted that all three of them were doing cannabis before they were arrested by the police. However, DW2 claimed he was not doing drug prior to the arrest. 18 [ 49 ] All prosecution witnesses confirmed that the accused, DW2 and DW3 were arrested at No. 32, Jalan PSJ 2, Pinggiran Netas Jaya, Mentakab and their story was supported by the evidence of DW2 who is the owner of the house. Whilst prosecution witnesses remained consistent in giving evidence as to material facts of the case, defence witness on the other hand gave conflicting evidence with one another. For example, DW1 and DW2 stated that they were arrested at No. 32, Jalan PSJ 2, Pinggiran Netas Jaya, Mentakab whereas DW3 confidently informed the Court that they were arrested at No. 10, Taman Pinggiran Netas, Bt 3, Jalan Karak – a totally different address. Taken that DW3 was at the scene when they were all arrested by PW5, there was no rhyme or reason why he was at odds as to material fact except to rule that he (DW3) was untrustworthy. [ 50 ] Another sore point for the defence was conflict of facts regarding the arrest. According to the accused, DW2 was arrested first but DW3 testified that the accused and DW2 were arrested first. Not only they were inconsistent in facts regarding the arrest, they were also not in agreement with each other when it comes to the vehicle used to transport them to the police station. During trial, the accused as well as DW2 told the Court that they rode a van to the police station with PW5 and his men whilst DW3 boldly said that all three of them together with five other policemen rode a car to the police station. All of the above findings show that their inconsistencies regarding material facts were like a cancer that kills the host. [ 51 ] After complecting the facts of the case, I find prosecution witnesses are more reliable as there exists no interest or motive 19 for the police officer to frame the accused. On the other hand, defence witnesses were family members, friends and neighbor who have known the accused for quite a long time. Even DW5 in her testimony admitted that she is willing to do whatever it takes to save the accused. It is also important to note here that DW5, when answering questions asked by the prosecution, constantly turned to the accused and seek his approval or indication before answering the questions posed. Her action (in doing such) caught my eyes and she was reprimanded several times but kept on doing the same over and over again, hence her demeanor was recorded in the notes of evidence. To encapsulate my point, I would like to quote the decision in the case of PP v. Muhamed Ali [1962] 1 LNS 129 where Thomson KH has stated as follows: When a police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted. [ 52 ] That being said, I am satisfied to rule this judgment: After having considered the defence in totality of the evidence presented, I find that no doubt on prosecution’s case and in the circumstances, I find that prosecution has proved its case beyond reasonable 20 doubt. Therefore, I find the accused guilty and accordingly convict the accused of the offence charged against him. THE SENTENCE [ 53 ] In this case the accused has been convicted with an offence which is punishable under section 39A (1) of the DDA. An offence section 39A (1) of the DDA carries the punishment of an imprisonment for a term which shall not be less than 2 years but shall not exceed 5 years and shall also be punished with whipping of not less than 3 strokes but not more than 9 strokes. [ 54 ] To reach an appropriate sentence, the Court has to consider the nature and the seriousness of the offences that the accused has been found guilty of, the personal circumstances of the accused as well as the interests of society. I also had to take into consideration the main purposes of punishment; namely retribution, deterrence, prevention and rehabilitation. [ 55 ] In his mitigation, the accused prayed that his sentence be reduced to the minimum as he has, at one time, been under remand for quite some time before he was bailed out. He is a sole breadwinner of a family of two asides having to care for his disabled wife and ageing mother. [ 56 ] The DPP on the other hand sought maximum custodial sentence against the accused having regard to the interest of the public, the nature and seriousness of the offence. 21 [ 57 ] With regards to sentencing, I would like to quote the decision by Hashim Yeop A. Sani J in Public Prosecutor v. Loo Choon Fatt [1976] 1 LNS 102 where his Lordship is quoted as saying: Presidents and magistrates are often inclined quite naturally to be over sympathetic to the accused. This is a normal psychological reaction to the situation in which the lonely accused is seen facing an array of witnesses with authority. The mitigation submitted by a convicted person will also normally bring up problems of family hardship and the other usual problems of living. In such a situation the courts might perhaps find it difficult to decide as to what sentence should be imposed so that the convicted person may not be further burdened with additional hardship. This in my view is a wrong approach. The correct approach is to strike a balance, as far as possible, between the interests of the public and the interests of the accused. [ 58 ] Drug is notoriously known as enemy of the state (Mohamad Daud B. Hj. Druis, et all (2015). Ancaman Dadah Dan Pengurusan Keselamatan Di Malaysia: Penilaian Semula Pendekatan Perlaksanaan Dan Keberkesanannya. International Journal of Environment, Society and Space, 2015, 3 (1), 28 – 43). As prosecution has rightly pointed out, the crime of narcotics is a crime affecting all walk of life that the Court in Public Prosecutor v. Erwin Bin Hardy [2007] MLJU 492 has given a carte blanche to take judicial notice of the rampancy of the offence under the DDA. [ 59 ] Despite concerted effort by PDRM and other agencies in combating the crime, it still run-of-the-mill, evidently by the 22 upsetting figure of such crime being registered in the Court. In this regard, I am of the same mind with the submission of the prosecution when she implored that sentences passed must reflect the intention of the legislature when drafting drug-related laws along with the ongoing efforts of the Royal Malaysian Police and the National Anti-Drug Agency in enforcing the law in combating drugs offence (PP v. Ahmad Bohari Mohamad Noor & Yang Other [2017] 1 LNS 1093). [ 60 ] Crime of narcotics, if not keep in check, will bring about wretchedness to future generation. It mandates exacting action in order to protect the interest of the public (Hafiz Fathullah v. PP [2016] 1 LNS 989; Balanchandran v. PP [2005] 1 CLJ 213) among which by outweighing the interest of the public over the offenders’ or even singling out any credit or discount to the offender who pleads guilty (Tia Ah Leng v. PP [2004] 1 LNS 252). [ 61 ] The Court in Public Prosecutor v. Ooi Teng Chian [2006] 1 MLJ 213 has held that the larger the quantity of drugs involved, the harsher the sentence should be. The sentence imposed must act as a reminder to prevent public from committing the same offence alongside of protecting public interest. Mohtarudin Baki JCA in PP v. Muhammad Saifullah Awang [2016] 3 CLJ 784 stated the following: A deterrent sentence must be passed to strengthen public confidence that an offense of this nature will be severely punished by the Court. A long imprisonment term by the court will create fear in the minds of future offenders 23 besides sending a message to the public about the seriousness of this offense. [ 62 ] Basing on the dictum as discussed in the above and the accused having been convicted of a drug offence under section 39A (1) of the DDA, I hereby sentence the accused to an imprisonment for a period of 36 months with effect from 08 November 2019 and 04 strokes of whipping.