SANTANASAMY A/L MUTHIAH v Pendakwa Raya (W-05(M)-302-08/2020)

The appellant, (1st accused) was charged under section 39B(1)(a), section 12(2) and section 6 of the Dangerous Act 1952 (“the DDA”) with two other accused persons, namely Thierruselvan a/l Kasinathan (2nd accused) and James a/l Santhanasamy (3rd accused). For ease of reference the charges are reproduced as follows: - First Charge: “Bahawa kamu bersama-sama pada 14.02.2018 jam lebih kurang 11.40 pagi di rumah No. 23, Jalan 89/86, Taman Sri Rampai, dalam Daerah Wangsa Maju, Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 85.03 gram. Oleh itu, kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama serta dibaca bersama seksyen 34 Kanun Keseksaan.” Second Charge: “Bahawa kamu bersama-sama pada 14.02.2018 jam lebih kurang 11.40 pagi di rumah No. 23, Jalan 89/86, Taman Sri Rampai, dalam Daerah Wangsa Maju, Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah didapati dalam milikan kamu 3 dadah berbahaya iaitu heroin seberat 10.13 gram. Oleh itu, kamu telah melakukan kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(2) Akta yang sama serta dibaca bersama seksyen 34 Kanun Keseksaan” Third Charge: “Bahawa kamu bersama-sama pada 14.02.2018 jam lebih kurang 11.40 pagi di rumah No. 23, Jalan 89/86, Taman Sri Rampai, dalam Daerah Wangsa Maju, Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah didapati mengedar dadah berbahaya iaitu Cannabis seberat 7.48 gram. Oleh itu, kamu telah melakukan kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dibaca bersama seksyen 34 Kanun Keseksaan.”

At the end of the prosecution’s case, the learned trial judge found a prima facie case against the appellant and two other accused on all the charges proffered against them and called upon them to enter the defence.

At the end of the defence’s case, the learned trial judge found the following:

First Charge - The appellant had failed to raise a reasonable doubt in the prosecution’s case and failed to rebut the presumption under section 37(da). He was convicted and sentenced to death. Whereas both the 2nd and 3rd accused were acquitted and discharged on the said charge.

Second charge - the appellant had failed to raise a reasonable doubt in the prosecution’s case. The appellant was convicted and sentenced to 11 years and 10 strokes. However, both the 2nd and 3rd accused were acquitted and discharged on the said charge.

Third charge - The appellant and both the 2nd and 3rd accused had failed to raise a reasonable doubt in the prosecution’s case. They were convicted and sentenced two years imprisonment from the date of arrest. In respect of the appellant the sentence to run concurrently from date of arrest. [4] Aggrieved, the appellant appealed to this court against his conviction and sentence on each charge. We heard the appeal. After carefully considering all the submission in writing and that made orally by both parties, we unanimously dismissed the appeal. Our reasons for doing so now follow. THE PROSECUTION’S CASE [5] The appellant was riding a motorcycle near a school, when he was accosted by SP7 and four (4) other police officers. SP7 claimed that the appellant had acted suspiciously. SP7 had upon questioning the appellant, proceeded to do a body search, and found three transparent plastic packets containing substances which he suspected were heroin. SP7 also seized a set of six keys from the appellant and asked where he lived. [6] The appellant then led SP7 and his team to a double storey house which was about 500 meters away. The gate to the house was closed, but not locked. The door to the house however was locked. SP7 then used one of the keys taken from the appellant to unlock the door, and proceeded to enter the house with his team. SP7 saw the second and third accused in the living hall. According to SP7 they looked nervous. He then searched them but found nothing incriminating. [7] SP7 went on to search the house and found two transparent plastic packets containing what he suspected to be cannabis, on a wooden cabinet next to the staircase in the living hall. He then asked all three of them whether there were any other drugs kept in the house. They remained quiet. SP7 then went up to the first floor together with the appellant. There were three rooms on the first floor. SP7 went into one of the rooms. The room was unlocked. He had, upon inspecting the room, found a zipped cupboard. In the cupboard was a brown bag inscribed with the mark “Converse”. In the bag was a plastic bag containing several transparent plastic packets tied up with rubber bands containing substances which were suspected to be drugs. SP7 seized all the items suspected to be drugs. The appellant and both the 2nd and 3rd accused were then arrested and handed over to the investigating officer, SP8, together with the seized items. [8] SP8 subsequently handed over the seized items suspected to be drugs to SP3, a chemist at the Chemist Department of Malaysia, for analysis. SP3 had, upon analysing the substances suspected to be drugs, found:

(a)

85.03 gram of methamphetamine;

(b)

10.13 gram of heroin, and

(c)

7.48 gram of cannabis. The cannabis was contained in the two transparent plastic packets found on top of the wooden cabinet in the living hall, which is the subject matter of the third charge. The drugs found in the zipped cupboard in the room on the first floor were methamphetamine and heroin, the subject matter of the first and second charge respectively. [9] Two days after the arrest, SP8, SP5 and the forensic team went to the house and seized the following items:

one blue towel;

one black shorts;

one white t-shirt;

a pair of brown shoes; and

one black shirt. [10] These items were then sent to the Chemist Department of Malaysia for analysis by SP9. Blood samples were taken from the appellant and both the accused by SP6. The report prepared by SP9 in gist, identified the appellant and the second accused’s DNA on some of the items seized. FINDING OF THE LEARNED TRIAL JUDGE AT THE END OF THE PROSECUTION’S CASE [11] The key findings of the learned trial judge at the end of the prosecution’s case were as follows: -

The learned trial judge was satisfied that SP3’s evidence and his comprehensive report P27 is not inherently incredible and the drugs seized from the appellant and the other two accused were of the type and weight as set out in his report and as set out in the charges against them. Therefore, the prosecution has proven that the drugs seized are scheduled as dangerous drugs under the DDA 1952.

(ii) The appellant and the other two accused were in custody and control of exhibit P10, P11, P13 and P16 and the drugs found on the wooden cabinet next to the staircase in the living hall and in a brown bag inscribed with the mark “Converse” (P10) kept in the zipped cupboard.

(iii) The appellant and both the accused were the only persons present in the house where the drugs were found in the living hall and in the room. They knew of the presence of the impugned drugs and intend to control its disposal.

(iv) It was revealed during the course of trial that the house was initially rented to a man named Nagendran and his wife, Banu. Sometime in September 2017, Banu had informed SP2 that her relative or brother wanted to continue the tenancy. SP8, the investigation officer discovered that Nagendran and his wife no longer stayed there. According to the neighbour next to the house, that a couple with a child had lived in the house, but had moved out three months before the raid. Therefore, the learned trial judge had accepted the evidence of SP8 that there was no evidence to suggest that Nagendran and his family were living in the house during the raid.

The key to the house found on the appellant was used to open the house. The facts that his DNA was found on some of the items in the house, and the room where some of the drugs were found also infers that he is an occupant.

(vi) That in furtherance of their common intention under section 34 of the Penal Code, the drugs seized were under their custody and control at the material time.

(vii) The prosecution had established actual possession of the drugs under all three charges against the appellant and two other accused.

(viii) It is decisively established that the drugs seized were methamphetamine and weighed more than 50 grams. Therefore, the presumption under s.37(da) is applicable against them, and they are therefore deemed to be trafficking as per the 1st charge. THE DEFENCE The Appellant [12] The appellant stated that Nagendran was a friend, and had in January 2018 offered him to stay at the house, as he was looking for a place to stay arising from domestic issues that he was facing at that time. The appellant took up Nagendran’s offer, and moved into the house late January 2018. He claimed that Nagendran had made a set of keys for him and retained his own set. The appellant stayed in what he termed as room number 2 on the first floor. This was the room with the zipped cupboard, where the methamphetamine and heroin were found. The appellant stated that he shared the cupboard with Nagendran and that latter had also placed his belonging in the cupboard. He also stated that the second accused was also a tenant, and occupied the first room on the first floor, and that the third accused would use the third room, also on the first floor, to keep his clothes. The Second Accused [13] The second accused was introduced to Nagendran by a mutual friend, and had taken up the offer to rent a room in the house. He moved in sometime in February 2018, he too was given a set of keys to the house. He stayed in the first room on the first floor. The Third Accused [14] The third accused counted the appellant as a friend, but claimed that he was not a tenant. He worked as an attendant at Kuala Lumpur Hospital, and would only go over to the house to rest and sleep whenever he was working late-night shift. He would keep his work clothes in the third room on the first floor whenever he came over. Unlike the appellant and second accused, the third accused claimed that he does not have any keys to the house, and that he would be let in by the appellant whenever he came over. FINDING OF THE LEARNED TRIAL JUDGE [15] The material part of the learned trial judge’s finding at the end of the defence case can be gleaned from the following passages: At page 32 of the Grounds: - “[50] The common thread of all three accused is that although they stayed in the house (in the case of third accused occasionally), they did not have exclusive access to the house, as Nagendran, Banu and friends had equal access to the house. They also claimed that Nagendran kept his belongings in the house, and that the drugs found were most likely his. [51] I am of the opinion that the defence raised by the accused is unsubstantiated. Their contention that Nagendran and company would from time to time visit the house is incomprehensible, particularly as Nagendran was no longer a tenant. It would have been acceptable if Nagendran was still living there. It is not disputed that Nagendran who used to rent the house no longer lives there. I find it very difficult to accept their claim that Nagendran would come over with his friends, and that his wife would cook in the kitchen while they remain upstairs.” [16] Premised on the above finding the learned trial judge had concluded at page 33 of the Grounds that: “[52] I am more inclined to accept the evidence proffered by SP8, who in inspecting the house concluded that the house was more like as bachelor pad, as there were no evidence that there were other belongings that would belong to a married couple with children. The first accused’s contention that he had shared the zipped cupboard with Nagendran is implausible, for the simple reason that a married man could not have possibly shared the same cupboard, more so with his wife’s clothing.” [17] To conclude, the learned trial judge had ruled at the end of the defence that the defence raised by the appellant and the other two accused is unsubstantiated. Their contention that Nagendran and company would from time to time visit the house is incomprehensible, particularly as Nagendran was no longer a tenant. [18] As regards the first and second charge the learned trial judge found that both the 2nd and 3rd accused had no knowledge of the drugs found in the bag that was in the zipped cupboard. Therefore, they were acquitted and discharged of the said charges. However, the learned trial judge was satisfied that despite the appellant admitting that he had stored his belongings in the zipped cupboard in the room, it is evidently clear that both the 2nd and 3rd accused used the other two rooms on the first floor. It is unlikely that they would use or have access the zipped cupboard particularly as the appellant had stored his clothes and belongings in it. Therefore, the cupboard is not a common cupboard and it follows that there is no common intention between them that would fulfil section 34 of the Penal Code. [19] In respect of the third charge, the learned trial judge was satisfied that the appellant and both the 2nd and 3rd accused have failed to raise any reasonable doubt of possession of the drugs as to their involvement to negate the provisions of s.34 of the Penal Code. Therefore, they were found guilty and were convicted under s.6 of the DDA 1952. ISSUES AND OUR DECISION [20] Before us, the learned counsel for the appellant had canvassed three (3) main issues to be determined in this appeal. First Issue: Whether the substance Was Dangerous Drugs within the meaning of section 2 of the Act? [21] It is clear that the trial judge had considered the evidence of SP3 and his comprehensive report in respect of his analysis of the drugs seized and concluded that his evidence is not inherently incredible and that the drugs seized from the appellant were of the type and weight as set out in her report, and as set out in the charges against the appellant. Therefore, the learned trial judge found that the drugs seized are scheduled as dangerous drugs under s.2 of the DDA 1952, and listed in the First Schedule of the Act. [22] There are plethora of cases of which the evidence of the chemist can be accepted on its face value and that it is unnecessary for the chemist to go into the details of what he did in the laboratory, unless it is inherently incredible, or when the defence has called evidence in rebuttal through another expert. Hence the evidence of SP3 in respect of his analysis is sufficient to prove that the substance analysed is the impugned drugs as defined under DDA as per the charges. It is also established through the testimonies of SP7, the raiding officer and SP8, the investigation officer that the drugs produced in court were the same as seized by the SP7 and handed over to SP8, the investigation officer. (see Balachandran v PP [2005] 1 CLJ 85). Issue 2: Whether the appellant had possession of the Dangerous Drugs [23] Learned counsel submitted that the case for the prosecution has always been that the impugned drugs were found inside the house where the appellant and two other accused were living. It was argued that the appellant has no possession over the drugs. There is a possibility that others have access to the said house where the drugs were found. In this respect, SP8 had also admitted that the drugs were in an open area as opposed to an area which was neither hidden nor concealed. It is reiterated that the prosecution had failed to exclude the possibility of others having access to the house where the drugs were found (see Ibrahim Mohammad & Anor v PP [2011]4 CLJ 113 (FC)). [24] In the upshot the learned counsel submitted that the prosecution failed to prove that the appellant has knowledge of the drugs found in the place accessible to others. Mere physical proximity does not give rise to the inference that they intend to deal with it as if it belongs to them (see Gooi Loo Seng v PP [1993] 3 CLJ 1, Chan Pean Leon v Public Prosecution [1956] 22 MLJ 237). [25] Learned counsel further submitted that in the absence of any incriminating conduct on the part of the appellant such as no scuffle or attempts to abscond showed that he has no knowledge of the drugs (see Public Prosecution v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393). [26] It is trite also that 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 PP v Abdul Rahman Akif [2007] 4 CLJ 337. [27] In the instant appeal, the evidence adduced in court through direct evidence of SP1, the owner of the house that she had left it to SP2, Ng Ching Seng, an estate agent to rent out the house. SP2, testified that he had rented the house to Nagendran from April 2016. Sometime in September 2017 Banu, Nagendran’s wife has informed SP2 that her relative wanted to continue with the tenancy. There was no tenancy agreement as he had based it on trust. SP2 also stated that Nagendran had been staying in the house with his wife Banu, and their children. Whilst SP8 testified that he had made attempts to contact Nagendran and his wife through a telephone number given to him by SP2 and he had managed to contact Banu. SP8 then suggested to Banu to meet her. However, his attempts were futile as Banu kept giving excuses. When SP8 traced the telephone number, he discovered that the number was registered to Nagendran. Subsequently SP8 managed to obtain Nagendran’s address from the National Registration Department and he went there but discovered that Nagendran did not live there. SP8 had decided not to pursue them anymore. [28] It is convenient at this stage to briefly state the law on possession where the drugs were found in a place or area under the control of an accused. It is trite that the two elements required to prove possession are physical control and knowledge. To satisfy the physical element the accused must be shown to be in proximity to the drugs to enable him to deal with it, as if it belonged to him. As for the mental element, or mens rea, it must be shown that the accused had the intention of dealing with it (see PP v Abdul Rahman Akif [2007] 5 MLJ 237 (FC), Chan Pean Leon v PP [1956] 22 MLJ 237 (HC). Suffice to say that a physical element and a mental element, both must be present before possession is made out. It must also be shown that the accused had the intention of dealing with it as if it belonged to him. Intention is a matter of fact which cannot be proved by direct evidence. Therefore, possession requires a finding of fact that the accused had physical control over the drugs and that he had the requisite intention to deal with it. Mere fact that the accused had knowledge of the drugs is insufficient to incriminate him. (see Husin Sitorus v PP [2012] 7 CLJ 2005 (CA). [29] With the above principles at the forefront of our mind, we now proceed to consider this important issue. [30] We have carefully reviewed the Appeal Record and found that the prosecution had proved that the appellant had control and custody of the impugned drugs found in the said house. We find that the prosecution had adduced the facts, evidence and the circumstances as follows: -

In the course of trial, it was revealed that the house was initially rented to a man named Nagendran and his wife, Banu.

SP1, the owner of the house had left to her relative SP2, an estate agent to rent out to Nagendran from April 2016 to February 2018 but no tenancy agreement was signed as he had based it on trust.

SP2 testified that sometime in September 2017, Banu had informed him that her relative or brother wanted to continue the tenancy.

SP8 the investigation officer had made sufficient effort to locate Nagendran and his wife but to no avail. Based on the condition of the house, which he claimed did not resemble the conditions of a family occupying the house he concluded that the house more like a bachelor pad.

The learned trial judge had accepted the SP8’s evidence that no evidence to suggest that Nagendran and his family were living there. In addition, the keys of the house found on the appellant was used by SP7 to open the house. It could only mean that the appellant lived there and had unrestricted access. More so his DNA was found on some of the items in the house and room where some of the drugs were seized.

It is not disputed that the cannabis (subject matter of the third charge) was found on a wooden cabinet next to the staircase in the living hall. The two transparent packets of cannabis were in clear sight as they were in an open area. At the time of the police raided the house, both the accused were in the living hall. At that material time the two packets of cannabis placed in two transparent plastic packets were in close proximity to them.

In our view, based on the above evidence, it is clear that there was “affirmative link” between the appellant and both the 2nd and 3rd accused and the impugned drugs. The single most important link or connection between them with the impugned drugs was the simple fact that the cannabis was openly placed in the living hall, in an open area. It was also not disputed that they lived in the said house. Therefore, it is safe to infer knowledge on their part as the drugs were clearly visible.

As alluded to earlier, the learned trial judge had made the finding that the appellant and both the 2nd and 3rd accused were living in the house and no other persons there during the raid. The drugs were also found in close proximity to them. We agree with the learned trial judge’s finding that there is sufficient evidence to infer that there was a prior meeting of minds between all of them and therefore it was done in furtherance of the common intention under s.34 of the Penal Code.

As for the drugs found in the first and second charges, it is in evidence that the appellant had knowledge of the drugs found in the bag that was in the zipped cupboard. It is admitted by the appellant that the zipped cupboard was used by him to store his belongings. The appellant’s contention that there was other belonging that would belong to a married couple with children cannot hold water as it was not borne out by evidence. In any event, in our view it is simply implausible for a married to share the same cupboard, more so with his wife’s clothing. We agree with the learned trial judge that there was no evidence that there was other belonging that would belong to a married couple and children found in the zipped cupboard. It is also unlikely that both the other accused would use or have access to the zipped cupboard. [31] In the circumstances, we found that the learned trial judge has not erred in finding that the appellant has the physical possession of the impugned drug in the bag found in the zipped cupboard i.e. methamphetamine and heroin, as stated in the first and second charges. In the light of the above fact, we agree with the learned trial judge that the appellant has failed to rebut the presumption of trafficking under s.37(da) DDA 1952 in respect of the first charge on the balance of probabilities. CONCLUSION [32] All told, we unanimously found no reason to reverse the conviction and sentence passed by the learned trial judge. We find that there is overwhelming evidence that supports the conviction, and the conviction is safe. The appeal therefore stands dismissed and we so order. Dated: 9 February 2023 -sgd-AHMAD NASFY YASIN Judge Court of Appeal Malaysia Putrajaya Counsel/ Solicitors For the Appellant: Sivaruban s/o Sivasubramaniam (Messrs. S.S Ruban & Associates) For the Respondent: Datin Asmah binti Musa (Wong Poi Yoke with her) Deputy Public Prosecutors (Attorney General’s Chambers)