Q-05(M)-27-01/2016 - Chong Joon Hong v Public Prosecutor (No. Q-05(M)-27-01/2016 berkaitan dengan No. Q-05(M)-28-01/2016)

It should be pointed out that at the time of raid and as can be seen in photographs marked exhibit P13(13), besides the Skynet box which was sealed with cello tape, the rest of the seized drug exhibits were not hidden but were placed uncovered on the floor of the bedroom. According to PW4, the 2nd accused was sitting on the mattress marked B in the photograph marked exhibit P6(20). Judging from the proximity of the 2nd accused to the drug exhibits strewn openly on the floor, it is not far-fetched to say that the 2nd accused, who lived in the same room, must have knowledge about the presence of the drugs in the bedroom.

Thus, it is fair and logical inference that both accused knew there were drugs in the Skynet box that the 1st accused had brought back and kept in their bedroom. That explained why both accused kept quiet and refused to answer PW4 who asked them whether they had kept any illegal drugs and that the possession of these drugs exhibits was for the common intention of trafficking.

PW4 testified that after the body search on the 1st accused yielded nothing, he asked both accused whether they kept any type of illegal drugs, both kept quiet and refused to cooperate. While the 1st accused reacted quite visibly by knocking his heads against the wall and uttering “C” repeatedly, the 2nd accused was passive, sitting on the mattress. After the 1st accused was calmed down, PW4 repeated the same question, again both kept quiet.

I agree with the DPP that if indeed the 2nd accused had no nexus with the drugs kept in the bedroom, it is inconceivable that she would just keep silent and remain passive. If the 2nd accused was ignorant of the presence of the drugs being stored in the Skynet Box, one would expect her to tell the raiding party that she did not know. In my view, the 2nd accused passivity and silent is consistent with a person who had knowledge of the illegal contents of Skynet box.

I am aware of the cautioned statements of the 2nd accused [exhibits D1 and D2] in which the 2nd accused stated that she had no knowledge of the offending items in the Skynet Box. It was submitted that exhibits D1 and D2 were admitted as evidence without objection by the prosecution. Thus, there is evidence to show that the 2nd accused has no nexus with the drugs mentioned in the charges. The 2nd accused must, therefore, be discharged and acquitted without her defence being called.

With respect, I do not agree. I agree with the DPP that the mere admission of the 2nd accused’s cautioned statements as exhibits does not amount to admission of the contents therein. In my view, the fact that the 2nd accused did not, at the first opportunity, deny knowledge when PW4 asked her and the 1st accused twice whether they had kept any illegal drugs, has rendered the denial of knowledge of the existence of the drugs an afterthought.”. [28] We were in full agreement with the learned trial Judge’s assessment of the evidence and the findings made by her. The existence of a common intention is a question of fact to be proved mainly as a matter of inference from the surrounding circumstances of the case. It pre-supposes prior concert which requires a pre-arranged plan of the accused participating in an offence and such pre-arranged plan may develop on the spot or during the course of the commission of the offence [See Wan Yurillhami Wan Yaacob & Anor v. PP [2010] 1 CLJ 17]. Mere silent when confronted by questions could only show acquiesce despite repeated calls by the police officers. It is rather strange that not a single protest was uttered by the second appellant during the whole episode. Her mere silent was no ground to negate the evidence stacked against her. Further, she had turned a blind eye to the drugs that were in her plain view. In our considered view, in all the circumstances of the case, it could be safely inferred that the second appellant had equally harboured the common intention to commit the offence and had participated in the commission of the offence. Ground (ii): Mens rea possession [29] It is perhaps convenient at the outset to briefly state the law on “possession” where the drugs were found in a place or area under the control or custody of an accused. The prosecution is required to prove the twin elements of possession i.e. (i) the appellants had custody or control of the impugned drugs and (ii) the appellants knew of the presence of the impugned drugs and intend to control its disposal (see Leow Nghee Lim v. Reg [1956] MLJ 28, Public Prosecutor v. Mohd Radzi Bin Abu Bakar [2005] 6 AMR 203 and Director of Public Prosecutions v. Wishart Brooks [1974] AC 862). [30] Factors that may be considered in determining whether an accused is in possession of the impugned drugs include his or her access to the place where the drugs were found and his or her physical proximity to the drugs. Further, possession need not be exclusive; a person may be deemed to be in joint possession of a drug which is in the physical custody and control of another, if he or she wilfully shares with the other the right of control over the drugs (see Toh Ah Loh and Mark Thim v. Rex [1949] 1 MLJ 54, Chan Pean Leon v. Public Prosecutor [1956] 1 MLJ 237, Public Prosecutor v. Muhammad Nasir bin Shaharuddin & Anor [1994] 2 MLJ 576, Fun Seong Cheng v. Public Prosecutor [1997] 3 SLR 523, Public Prosecutor v. Badrulsham bin Baharom [1998] 2 MLJ 585, Public Prosecutor v. Abdul Rahman Akif [2007] 4 CLJ 337, and Ibrahim Mohamad v. Public Prosecutor [2011] 4 CLJ 113). [31] With the above principles at the forefront of our mind, we now proceed to consider the appeals. [32] Learned counsel for the appellants argued that the learned trial Judge erred in holding that the prosecution had succeeded in establishing mens rea possession against the appellants. Learned counsel for the appellants drew our attention to the following facts: i. The Skynet box was couriered from Johore to Kuching by one Yap Tong Kiat and the receiver was one Peter Khoo; ii. PW13, a staff of Skynet Courier, testified that the Skynet box was collected by one Wan Adep from the Kuching Skynet office. However, PW13 could not confirm the actual person who collected the box because she did not check the identity card of the receiver as the handing over of the box was made based upon the reference number stated in the consignment form P35; iii. The Skynet box was given to the first appellant by one Jeddy Anak Taging; iv. Failure of the prosecution to call Jeddy Anak Taging would attract adverse inference under section 114(g) of the Evidence Act 1950; and v. There was doubt on the oral evidence of PW4 as regards to the conduct of the first appellant as the conduct was not mentioned in the police report (P15). [33] Thus, learned counsel for the appellants submitted that the learned trial Judge erred in failing to consider the evidence from all angles and to draw the inference favourable to the appellants. [34] In reply, learned Deputy Public Prosecutor (“DPP”) submitted that the totality of the evidence reasonably supports the conclusion that the appellants were in possession of the prescribed drugs at the material time. The evidence relied upon by the prosecution that were accepted by the learned trial Judge were as follows: i. At the material time, the appellants were occupying the said bedroom; ii. The door was locked from inside; iii. Only the appellants had the key to the room; iv. The first appellant was seen carrying the Skynet box; v. The mobile number 013-8965047 was traced to mobile phone H2 which was seized from the first appellant; and vi. The impugned drugs were scattered openly on the floor. [35] In our view, based on the above evidence, it was clear that there was “affirmative link” between both appellants and the impugned drugs. The simple most important link or connection between both appellants and the impugned drugs was the simple fact that the packages and boxes that contained the impugned drugs were in their plain view. This evidence constituted strong “presence” and “proximity”. They were not merely present inside the bedroom with the impugned drugs cached away somewhere but the impugned drugs were right under their noses. They were the only persons present in the house and the bedroom when the raid was conducted. This was the second link. Only the appellants had access to the bedroom as the key were with them. This was the third link. [36] In our view, the totality of this circumstantial evidence was sufficient to support the learned trial Judge’s finding that both appellants had custody and control of the impugned drugs found inside the bedroom. [37] With regard to the requisite knowledge on the part of both appellants, learned counsel submitted that the appellants could not have known that the Skynet box contained the impugned drugs since the said box was securely sealed. Learned DPP in her reply, vehemently argued that the appellants’ reluctance to cooperate with PW4 and their state of nervousness indicated that they had knowledge of the impugned drugs in the Skynet box and the impugned drugs that were scattered openly on the floor. She contended that the evidence of conduct was admissible under section 8 of the Evidence Act, 1950, for it had direct bearing to the fact in issue i.e. whether the first appellant has knowledge of the impugned drugs. She cited the celebrated case of Parlan bin Dadeh v. Public Prosecutor [2008] 6 MLJ 19 in which the Federal Court stated in page 45: “In this case the reaction of the appellant in looking stunned or shocked upon being approached by the police is clearly admissible under s.8 since it has a direct bearing on the fact in issue as the drugs were tucked away in the front of the jeans worn by him.”. [38] The law is clear – there is no possession by a man until he knows what he has got (see: Warner v. Metropolitan Police Commissioner [1968] 2 All ER 356. It is important to note that actual knowledge, as opposed to presumed knowledge under section 37(d) of the DDA, 1952, is a matter of fact, which in the nature of things cannot be proved by direct or tangible evidence. Unlike in a case where there is evidence of negotiated sale of dangerous drugs, in the present case, proof of the existence of actual knowledge is a matter of drawing inferences from the proved facts and the surrounding circumstances. It must be judged from his or her outward acts or omission (see: Ong Ah Chuan v. Public Prosecutor [1981] 1 MLJ 64, Syed AM bin Syed Abdul Hamid & Anor v. Public Prosecutor [1982] 1 MLJ 132 and Wong Nam Loi v. Public Prosecutor [1997] 3 MLJ 705). [39] After having scrutinised the evidence in its totality, we agreed with the submission of the learned DPP that the evidence of conduct considered in the light of the evidence adduced, necessarily indicated that the appellants had knowledge of the impugned drugs. The method employed by the appellants to bring the drugs in question from Johore into Kuching was done in a cunning fashion to escape detection by the authorities. Generic terms such as “hp covers” were used to disguise the contents of the Skynet box. The sender “Yap Tong Kiat”, the receiver “Peter Khoo” and “Wan Adep” were all fictitious characters. All these were done discreetly to avoid scrutiny and to prevent potential detection. An attempt to carefully conceal a drug, coupled with the appellants’ conduct, points to knowledge. As regards to the police report, it was our view that the alleged omission or inconsistencies highlighted by the learned counsel did not affect the prosecution’s case. [40] In our judgment, since the prosecution had proved the fact that the appellants were in control of the bedroom where the impugned drugs were found there is a strong inference that the appellants knew that the impugned drugs were there all along. It calls for an explanation by the appellants in order to rebut the said strong inference. Support for this proposition can be found in the House of Lords’ case of Warner v. Metropolitan Police Commissioner (supra). The appellant in Warner had picked up two parcels from a cafe which he believed had contained scent. However one parcel contained amphetamine sulphate tablets, a substance specified in the Schedule to the Drugs (Prevention of Misuse) Act 1964 (c 64) (“the 1964 Drugs Act”) and possession of which would, without lawful authority, be an offence under section 1(1). Lord Wilberforce observed as follows: “In all such cases, the starting point will be that the accused had physical control of something — a package, a bottle, a container — found to contain the substance. This is evidence — generally strong evidence — or possession. It calls for an explanation: the explanation will be heard and the jury must decide whether there is genuine ignorance of the presence of the substance, or such an acceptance of the package with all that it might contain, or with such opportunity to ascertain what it did contain or such guilty knowledge with regard to it as to make the statutory possession.”. [41] Our Federal Court also adopted the point made by Lord Wilberforce. In Public Prosecutor v. Abdul Rahman bin Akif [2007] 5 MLJ 1, in delivering the judgment of the Federal Court, Arifin Zakaria FCJ (as His Lordship then was) agreed with the following speech of Lord Morris in Warner v. Metropolitan Police Commissioner (supra): “If there is assent to the control of a thing, either after having means of knowledge of what the thing is or contains or being unmindful whether there are means of knowledge or not, then ordinarily there will be possession. If there is momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains then, ordinarily, I would suppose that there would not be possession. If, however, someone deliberately assumes control of some package or container, then I would think that he is in possession of it. If he deliberately so assumes control knowing that it has contents, he would also be in possession of contents. I cannot think that it would be rational to hold that someone who is in possession of the box but not in possession of the things in it. If he had been misinformed or misled as to the nature of the contents, or if he had made a wrong surmise as to them, it seems to me that he would nevertheless be in possession of them.”. [42] The first appellant’s conduct, considered in the light of the evidence adduced, justifiably necessitated some explanation from him. The explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstances (see R v. Stephenson [1904] 68 JP 524). However, the first appellant did not offer any explanation. The inference drawn from the evidence of conduct of the appellants will remain as he had not explained them pursuant to section 9 of the Evidence Act 1950 Act 1950 (see Parlan Dadeh (supra), Amathevelli P. Ramasamy v. Public Prosecutor [2009] 3 CLJ 109). [43] We found no merits in the submission of the learned counsel on behalf of the appellants that the learned trial Judge had failed to consider the evidence from all angles. On the totality of the evidence in the present case, it was our judgment that the learned trial Judge was correct to find that the appellants had mens rea possession of the impugned drugs. We found no gap in the narration of the prosecution’s case. Therefore, failure to call Jeddy Anak Taging to testify did not in any way attract the imposition of adverse inference against the prosecution. Further, PW12 had made diligent efforts to trace Jeddy Anak Taging and there was no suppression or withholding of evidence on the part of the prosecution. Ground (iii): Non-appreciation of the defence case [44] It is trite law that the appellants’ unsworn statements from the dock were evidence. However, their unsworn statements were not subject to the acid test of cross-examination. Consequently, their unsworn statements would not carry the same weight as opposed to oral evidence given by a witness under oath for which the said witness would be cross-examined. In the case of Dato’ Seri Anwar Ibrahim v. Public Prosecutor & Anor Appeal [2015] 2 CLJ 145, Ariffin Zakaria CJ held at page 199 as follows: “… In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross-examination by the prosecution nor can he be questioned by the trial judge. (Lee Boon Gan v. Regina [1954] 1 LNS 39; [1954] 1 MLJ 103; Udayar Alagan & Ors v. Public Prosecutor [1961] 1 LNS 146; [1962] 1 MLJ 39; Mohamed Salleh v. Public Prosecutor [1968] 1 LNS 80; [1969] 1 MLJ 104; Juraimi Husin v. Public Prosecutor [1998] 2 CLJ 383; [1998] 1 MLJ 537)” [45] Though an unsworn statement carries little weight, it is still incumbent upon the learned trial Judge to subject the statement to the appropriate judicial appreciation in the context of the entirety of the evidence (see Mohamed Salleh v. Public Prosecutor [1968] 1 LNS 80; [1969] 1 MLJ 104). [46] To recapitulate, the gist of the appellants’ defence was that they had no knowledge of the content of the Skynet box. The learned trial Judge, after a careful consideration of the appellants’ unsworn statements D2 and D3 and also the second appellant’s cautioned statement D1, rejected their assertion of lack of knowledge. The finding was made after the learned trial Judge had scrutinized the totality of the evidence, the credibility of witnesses and how they fared in cross-examination. [47] We have carefully scrutinized the learned trial Judge’s evaluation of the defence case. In our view, to say that the learned trial Judge failed to adequately appreciate the defence of the appellants was totally misconceived. The learned trial Judge did not reject the appellants’ defence on the simple ground that the unsworn statements carried no weight. In fact, at pages 555 to page 560 of the Record of Appeal, it was evident that her Ladyship had carefully analysed and scrutinized the defence’s case before reaching a conclusion that the defence is improbable and their existence was crafted to throw the blame onto one Jeddy Anak Taging. This was a finding of fact and we as the appellate court should be slow in interfering with such finding [See Andy bin Bagindah v. Public Prosecutor [2000] 3 CLJ 289, Wjchai Onprom v. Public Prosecutor [2006] 3 CLJ 724]. Conclusion [48] The learned trial Judge held that the defence put forth by the appellants had failed to create any doubt in the prosecution’s case. We were in total agreement with her Ladyship’s finding. The prosecution had led sufficient evidence to prove the case against the appellants beyond reasonable doubt. In our view, the grounds of appeal advanced by the appellants to impugn the decision of the learned trial Judge were not impressed with merit. Consequently, we dismissed the appeals and affirmed the convictions and sentences imposed by the High Court. So ordered. Dated: 6th March 2018 sgd. (DATO’ MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia Counsel for the Appellants: Osman Ibrahim Messrs. Osman Ibrahim & Co. Advocates Advocates & Solicitors Lot 262, 2nd Floor Wisma Bidar Section 9, Jalan Satok 93400 Kuching, Sarawak. Roger Chin Messrs. Roger Chin & Co. Advocates Advocates & Solicitors 547, Level 2 Jalan Tun Ahmad Zaidi Adruce 93400 Kuching, Sarawak. Counsel for the Respondent: Tengku Intan Suraya binti Tengku Ismail Deputy Public Prosecutor The Attorney General’s Chambers Appellate and Trial Division 62100 Putrajaya.