Subparagraph
(vi) That the trial judge had failed to appreciate the defence case. Control, Custody and Knowledge of the Impugned Drugs. [15] On these issues, counsel for appellant submitted that other persons which were the wife, Hajijah, their adopted child and Supriadi had access to the house and the 3rd room where the drugs were found was not locked and was rented by Supriadi. As such, no inference can be drawn that the appellant had control or custody of the said drugs in the room. More so, the 3rd room was occupied by Supriadi. 8 [16] As for the 2nd Charge, it was the appellant’s contention that the evidence before the Court does not establish the fact that the appellant had control or custody of the drugs found in the car. Apart from the keys and the car remote control was seized from the appellant, no forensic evidence was produced to link the appellant with the drugs found at the gear console of the said car. [17] It was also submitted that the prosecution had failed to prove that the appellant had knowledge of the impugned drugs found in the car and in the house. Further, the presumption under section 37(d) is not applicable in the present case to presume knowledge of the said drugs. [18] To begin with, as we are aware, in order to establish the charge of trafficking in dangerous drugs specified under 1st Schedule of the DDA 1952 as the 1st charge proffered against the appellant, the element of possession and trafficking must be proved by the prosecution. Possession can be proved by presumed possession under section 37(d) or independent of this provision, that is by direct or circumstantial evidence. As regard to element of trafficking, it can be established by way of presumption under section 37(da) where the weight of drugs in possession of the accused is as stated therein or by way of direct or circumstantial evidence proving any of the act stipulated under the definition of trafficking under section 2 of the same Act. [19] The Federal Court in the case of Public Prosecutor v Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193 at page 203, explained the application of the presumption’s provisions in the following words: 9 “[17] It ought to be stated at the outset that the decision in Muhammad bin Hassan only prohibits the use of double presumptions under ss 37(d) and 37(da) of the Act. It is therefore, open to the prosecution to rely on either of the presumptions. In other words, the prosecution may positively prove possession without relying on the presumption under s 37(d) of the Act and go on to rely on the presumption of trafficking under 37(da) of the Act to support a charge under s 39B of the Act. See Tunde Apatira & ors v Public Prosecutor; Msimanga Lesaly v Public Prosecutor [2005] 4 MLJ 314, a decision of Court of Appeal which was confirmed by this Court in Federal Court Criminal Appeal No 05 – 27 of 2004(K). Conversely, the prosecution may rely on the presumption under s 37(d) to prove possession and seek to prove by affirmative evidence (independent of the presumption under section 37(da)) that the accused was in fact trafficking in the dangerous drugs.” (emphasis added) [20] It is also trite law that the presumed possession may be invoked where the primary facts of custody or control and knowledge of the impugned drugs have been proved. Section 37(d) states: “(d) any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug;” 10 [21] In relation to this issue, it is apposite to make reference to the Federal Court case of Ibrahim Mohamad v PP [2011] 4 CLJ 113 where the issue of possession was explained in the following manner: “The law is well settled that having only custody or control over the said drugs is insufficient to establish “possession”. The physical act of control or custody must be accompanied with evidence that the accused had knowledge of the said drugs. In the absence of any statutory presumptions, knowledge has to be proved either by direct evidence or circumstantial evidence. Mere knowledge alone without exclusivity of either physical custody or control or both is insufficient in law to constitute possession let alone trafficking.” (emphasis added) [22] The meaning of “control” and “custody” had been lucidly elaborated by Taylor J in the case of Leow Nghee Lim v Reg [1959] 22 MLJ 28 which need no further mention here. [23] Further, the meaning of “possession”, was also discussed in the often-quoted case of Chan Pean Leong v PP [1956] 1 MLJ 237, where Thomson J explained that a person is in possession of a thing when he is so situated with respect to it and has the power to deal with it as owner when the circumstances arises. [24] Reverting to the present case, the established facts inter alia were that the appellant was alone about 10 feet from the car and was behaving suspiciously. He was seen nervous when PW2 accosted him and introduced himself as police officer. Thereafter, the pertinent fact was that 11 the keys and remote control of the car was seized from the appellant which the remote control was later used to open the said car. The drugs were then found at the gear console of the car. Next, the appellant showed the police his house not far from the car and the grille of the front door was open by PW2 using the key seized from the appellant. It was not disputed that dangerous drugs were then found in the 3rd room of the house. [25] Based on these established facts, first and foremost, the car where the drugs were found was opened using the remote control seized from the appellant. The said car was also registered under the name of the appellant’s wife. It is a reasonable inference that the appellant was using the said car at the material time as the key and remote control was with him. Further, the grille of the front door of the said house was also opened using the key seized from the appellant and the house was rented to the appellant by PW5. The evidence viewed in totality, showed that the appellant had control and custody of the drugs found in the car as well as in the 3rd room of the house. [26] Now, with regards the appellant’s knowledge of the impugned drugs, the appellant’s conduct acted suspiciously when was first sighted by the police and was nervous when PW2 introduced himself as police officer, considered with other relevant facts in this case, are relevant for an inference that he knew about the drugs seized by the police in the car and in the house not far from the car. The appellant’s conduct is admissible under section 8 of the Evidence Act 1950 and the appellant need to explain his conduct as required under section 9 of the same Act which the appellant failed to do. 12 [27] On the issue discussed above, it is instructive to cite the Federal Court case of Samundee Devan Muthu Kerishnan v PP [2010] 3 CLJ 269 where the facts have some similarity with the present case. In that case, Mohd Ghazali Yusoff FCJ delivering the judgment of the court said this: “[15] We also of the view that the contemporaneous conduct of the appellant in attempting to run away when PW7 identified himself as ‘police’ is relevant and admissible pursuant to s.8 of the Evidence Act 1950 under the circumstances of the instant appeal. Such conduct, of course not to be taken in isolation but together with all the other circumstances of the case. That would be the correct approach to circumstantial. (see Chan Chwen Kong v PP [1962] 1 LNS 22) … [17] we find the evidence adduced by the prosecution before the learned trial judge showed that the appellant was clearly in possession of the plastic packages and that he had knowledge of the contents of the packages. The facts denote that the said dangerous drugs were in his custody and control. He was in possession of a set of keys one of which was used to open the boot of the motorcar in which the dangerous drugs were found. He was clearly aware of the packages when he was approached by the police and consequently attempted to run away. The combined strength of these facts gave rise to a strong inference that the appellant had mens rea possession of the packages containing the dangerous drugs and he had knowledge of the dangerous of the dangerous drugs. There was evidence of possession of the dangerous drugs independent of s. 37(d) of the Act. (emphasis added) (see also: Parlan Dadeh v PP [2009] 1 CLJ 717 (FC)) 13 [28] Likewise in the case of G Vasan Gunasegaran v PP [2018] 1 LNS 1604, where this Court opined as follows: “[26] We have scrutinised the whole evidence on record and with respect we found that the learned counsel’s argument was misconceived. It was clearly proved that the appellant was the sole occupant of WXV 8540 and was having the sole control of the vehicle from at about 4.00 p.m., until the time of his arrest whilst at the driver’s seat inside the vehicle at about 5.20 p.m. by PW3 and his team. The keys and remote were recovered from the appellant. He was in physical proximity to the plastic bags containing the impugned drugs. All these factors, taken together, showed that the appellant could have dealt with the impugned drugs, though he was not the owner of the vehicle. For the same reason, the appellant was thus also having custody or control of the two plastic bags containing the said drugs (see PP v. Abdul Rahman Akif (supra); Parlan Dadeh v. PP [2008] 6 MLJ 19; Khairuddin Hassan v. PP [2010] 6 MLJ 145 and Aedy Osman v. PP [2011] 1 CLJ 273). [27] The presence of the two plastic bags inside the vehicle which were under the exclusive control of the appellant at the material time, and the fact that he needed to guard the plastic bags, must necessarily give rise to a strong inference that the appellant had the requisite knowledge that the two plastic bags contained the said drugs. As said by the Federal Court in PP v. Abdul Rahman Akif (supra): “…again, knowledge cannot be proved by direct evidence, it can be proved by inference from the surrounding circumstances. Again, the possible variety of circumstances which will support such an inference is infinite….” (emphasis added) [29] In another Federal Court case of Ghasem Hozouri Hassan v PP [2018] 6 CLJ 133 at paragraph 37, Md Raus Sharif CJ (as he then was) said this: 14 “[37] To recapitulate, based on the above narrative, we find that the witnesses called by the prosecution were sufficient in proving the essential elements of custody, control, and knowledge. Taken together, they provide a complete narrative of facts which established actual possession. The prosecution was able to prove that the appellant had free access to and from the said premises (showing custody or control); that he had been staying there for almost a week (showing custody or control); that the keys to the premises' main door and door to first bedroom were found in his bag containing his passport (showing custody or control). The element of knowledge can be inferred from the fact that the large quantity of drugs was at all times in the appellant's plain view. This was further reinforced by the fact that the appellant's fingerprints were found on one of the incriminating packages” (emphasis added) [30] In connection to this, one of the issues raised by the appellant was that there are other persons who had access to the house and in particular the 3rd room which was rented to one Supriadi. In this regard, firstly, it is trite law that possession need not be exclusive to the accused as clearly explained by Taylor J in Leow Nghee Lim v Reg [1956] 1 MLJ 28 at page 31 as follows: “The dictionary definition brings in the idea of exclusiveness. It is often said that "possession must be exclusive." This is ambiguous. Possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property.” 15 [31] On the same issue of exclusive possession, the Federal Court in PP v Denish Madhavan [2009] 2 CLJ 209 lucidly explained as follows: “[16] Before proceeding to consider the reasons for the Court of Appeal’s decision, we will say a few words about “exclusive” possession. It is inappropriate to speak of possession of an article in criminal law as exclusive possession. One is either in possession or not in possession, although one could be in possession jointly with another or others. To say that the prosecution of a drug case fails because there has been no proof of exclusive possession is apt to convey the wrong impression that it is only in cases where possession is entirely with one person, – that is, “exclusive” – that a conviction is possible. When the learned trial judge said “The accused sought to negative the proof of exclusive possession …”, we take it that he meant no more than that the respondent sought to show that he was not in possession of the drugs because he had no knowledge of their existence and that the drugs could have been placed in his bags by some other person or persons. [17] The idea of exclusivity features in the meaning of “possession” in criminal law as one of the elements necessary to constitute possession. As Taylor J said in Leow Nghee Lim v. Reg. [1955] 1 LNS 53: … It is often said that ‘possession must be exclusive’. This is ambiguous. Possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. Custody likewise may be sole or joint and it has the same element of excluding others. The main distinction between custody and possession is that a custodian has not the power of disposal. The statement that ‘possession must be exclusive’ is often due to confusion of the fact to be proved with the evidence by which it is to be proved. It is essential to keep this distinction clearly in mind, especially when applying presumptions. 16 [18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17, said that “possession” for the purposes of criminal law involves possession itself – which some authorities term “custody” or “control” – and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen’s Digest (9th edn, p. 304), in which the exclusive element mentioned by Taylor J appears: A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. [19] Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession.” (emphasis added) [32] Coming back to the present case, even if there was someone else had access to the house, the appellant could not be said to have no possession of the things in the house and in this instant case the drugs in the 3rd room. Based on the evidence alluded to earlier, inter alia that the keys to the house were found on him showed that the appellant had the element of the power to deal with the impugned drugs to the exclusion of other persons. [33] The facts in the present case is almost similar with the case of Lim Soon Heng v Public Prosecutor [2014] 6 MLJ 109 where its decision was affirmed by the Federal Court. In that case this Court decided as follows: 17 “[12] Coming back to the present case, the learned deputy public prosecutor (‘the DPP’) had with care took us through a number of pieces of evidence that established possession of the impugned drugs on the part of the appellant. Apart from the fact that PW4 saw the appellant coming out from the said premises and locked the grilled door with a padlock, what is more glaring was the fact that the keys to the said premises were recovered by PW7 from the appellant. These keys were later used by the police to unlock the padlock and the main door of the said premises. The next point which has a strong bearing on the issue is the evidence of Loke Kuan Chui (‘PW6’), Loke Kuan Yin (‘PW9’), Lau Wui Hong (‘PW12’) and Wong Chee Yee (‘PW15’), who confirmed and identified the appellant as the tenant who rented the premises. Their evidence when considered in its entirety showed that the appellant had care and management over the said premises at that material time. Even more to the point is that several documents and receipts bearing his name were also found in one of the rooms of the premises (see search list, exh P17 Items 47–52). In our judgment, all this admissible evidence when taken together lead to the conclusion that at all material time, the offending drugs were in the custody and control of the appellant and further the irresistible inference that could be drawn in the circumstances was that the appellant all along knew about the drugs found in the premises. Accordingly, in our judgment, the prosecution had made up a case of actual possession, independent of the presumption of possession under s 37(d) of the DDA. In view of s 37(da) of the DDA, the appellant was correctly presumed by the learned High Court judge, to be trafficking in the said drugs unless he proved to the contrary on the balance of probabilities. …. [15] On the facts of the present case, there can be no doubt that the appellant had possession of all the things inside the premises to the exclusion of other people. This is evidenced from the fact that he made sure he locked the grille door with a padlock before he left the premises, the keys to the premises were found with him. In such a situation, the appellant ‘has the power to exclude other 18 persons from the enjoyment of the property’ as explained by Taylor J in Leow Nghee Lim.” (emphasis added) [34] As regard to the character of one Supriadi who was said had rented the 3rd room of the house, the trial judge had made his finding that the appellant contention could not be accepted or raised any reasonable doubt to the prosecution’s case. This finding was based inter alia on the facts that when the appellant was arrested and the drugs was found in the car and the 3rd room of the house, the appellant did not inform the police at all about Supriadi. Further, Supriadi was not mentioned in the appellant’s cautioned statement. This late disclosure about Supriadi entitled the trial judge to disbelieve the appellant’s story. (Teng Howe Sing v PP [2009] 3 CLJ 733 (FC)). [35] The trial judge also has taken into account that there were no mattress, pillow or towel in the 3rd room to support the appellant’s contention that Supriadi occupied the said room. We do not see any misapprehension of fact or error of the finding of facts by the trial judge. [36] Counsel for the appellant also submitted that the trial judge committed an error of fact at paragraph 21 of the grounds of judgment when the trial judge stated that the drugs were found in the kitchen which in fact it was recovered in the 3rd room of the house. Having perused the grounds of judgment in totality, we are of the view that the statement at paragraph 21 about the recovery of the drugs in the kitchen was an 19 oversight by the trial judge. Other than paragraph 21, the trial judge did address his mind and mentioned about the drugs was found in the 3rd room. This can be seen in the following paragraphs: