Tn. Mohd. Radzi bin Abdul Razak v En. S. Narashiman a/l Subramaniam (PERBICARAAN JENAYAH NO: 45A-30-06/2018)

The said team arrived at the said place at around 9.10 p.m. and proceeded straight to Level 10 of Blok B. SP3 instructed that an observation be made of the said place. After about 30 minutes, SP3 saw 2 male Indians come out from the lift.

One of them was seen holding a red plastic bag. This person was later identified as the accused. SP3 then approached the 2 men. After a physical search was carried out, the said plastic bag was seized. SP3 said that at the time, both men appeared restless.

SP3 inspected the plastic bag and found inside another clear plastic bag which contained another aluminium foil wrapped around a block of dried leaves believed to be drugs. SP3 had identified the accused as the one who held the said plastic bag. 3

SP3 then arrested both men and proceeded to the police station. On the way back to the police station, the said plastic bag was under the care and control of SP3 until it was handed over to SP4.

SP3 lodged a police report (P9). SP3 handed over the incriminating exhibits to SP4 on the same day together with (P9), the search list (P10) and Acknowledgment of Handover of Exhibits or “Borang Serah Menyerah” (P11).

The exhibits seized were sent for analysis to SP2, the Chemist, who confirmed that they contained Cannabis with a nett weight of 237 grams.

Evidence was given that the other male Indian arrested together with the accused was one Kesavan a/l Arumugam. Attempts were made by the prosecution to locate his whereabouts but according to them, upon checking his last known address, his whereabouts were unable to be ascertained. Application by the prosecution to admit the statement of Kesavan a/l Arumugam under section 32(1) (i) Evidence Act 1950 (“EA”) 4

The prosecution during the course of the testimony of SP10, the investigating officer of the case, made an application to admit the witness statement of the said Kesavan a/l Arumugam (‘Kesavan”).

The application was made on the basis that the said person was unable to be located despite attempts being made by the prosecution. It was accordingly urged upon this court to admit the witness statement pursuant to the provisions of section 32(1) (i) Evidence Act 1950 (“EA”).

The defence on the other hand, not surprisingly objected to the application on grounds that insufficient attempts were made by the prosecution in locating the said person.

Section 32(1) (i) Evidence Act 1950 reads:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the 5 circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an offence under or by virtue of any written law; [14] In respect of the law on this subject, the case of Public Prosecutor v Mohd Jamil Bin Yahya & Anor [1993] 3 MLJ 702 held as follows: “The scope of the first principle may be briefly indicated by terming it the necessity principle. The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing. The second principle which is termed circumstantial guarantee of trustworthiness, is in the nature of a practical substitute for the ordinary test of cross-examination. We see that under certain circumstances the probability of accuracy and trustworthiness of statement is practically sufficient, if not quite equivalent to that of statements tested in the conventional manner.” 6 [15] In the case of Public Prosecutor v Michael Anayo Akabogu [1995] 4 CLJ 79, it was held: “The scope of the first principle may be briefly indicated by terming it the necessity principle. The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane or otherwise unavailable for the purpose of testing. The second principle which is termed circumstantial guarantee of trustworthiness, is in the nature of a practical substitute for the ordinary test of cross-examination. We see that under certain circumstances the probability of accuracy and trustworthiness of statement is practically sufficient, if not quite equivalent to the statements tested in the conventional manner.” [16] It has been held that a person whose whereabouts are unknown despite a proper search made is a person who “cannot be found”. See Public Prosecutor v Lim Bong Kat & Anor [1992] 4 CLJ

[17] The application of the section is not automatic and sufficient evidence must be adduced to show that despite all efforts made 7 the person could not be traced. See DA Duncan v Public Prosecutor [1980] 2 MLJ 195. [18] The provision in section 32 (1) (i) EA was also considered in the case of Public Prosecutor v Lee Jun Ho & Ors [2009] 3 MLJ 400, where the level of diligence expected on the part of the prosecution before the section could be invoked was stated in no uncertain terms as follows: “Section 32 of the Evidence Act 1950 is an exception to the general rule that hearsay evidence is inadmissible. Under s 32(1) of the Act, one of the circumstances under which such a statement becomes admissible is where the person who made the statement ‘cannot be found’. This was the basis upon which the prosecution tried to invoke when they attempted to produce and tender ID66 and ID67. For a witness to be clothed as ‘who cannot be found’ within the meaning of s 32(1) of the Evidence Act 1950, such determination is a finding of fact, of which the onus is upon the prosecution to prove. From facts adduced, I find that the police has failed to take all reasonably practicable steps to trace the witnesses. In fact there was not a single proactive effort by the police to procure the 8 attendance of such material, relevant and important eye-witnesses. There was no attempt to fully utilise the prevailing and available provisions of the Criminal Procedure Code, in order to secure the attendance of the witnesses. The police failed to invoke the provisions of Criminal Procedure Code; which empowers the court to issue a warrant in lieu of or in addition to summon a witness and to require that person to execute a bond for his appearance in court. The police also failed to invoke the provisions of s 118(1) of the Criminal Procedure Code whereby the police officer who desires any person, who is acquainted with the circumstances of a case, to be present in court, shall require that person to execute a bond to appear at the trial court. The prosecution also failed to utilise the provisions of s 396 of the Criminal Procedure Code whereby the public prosecutor may apply to court for any witness of any sizeable offence that intends to leave Malaysia and that witness's presence at the trial to give evidence is fatal for the trial, to be committed to the civil prison until trial or until he shall give satisfactory security that he will give evidence at the trial. .......In view of the above circumstances especially of the omissions by the police to take all reasonably practicable steps in 9 tracing the witnesses, and guided by the following cases (on s 32(1) of the Evidence Act):

Public Prosecutor v Mohamed Said [1984] 1 MLJ 50;

(ii) Public Prosecutor v Mohd Jamil bin Yahya & Anor [1993] 3 MLJ 702; [1994] 1 CLJ 200;

(iii) Public Prosecutor v Gan Kwong [1997] MLJU 144; [1997] 2 CLJ Supp 433;

(iv) Public Prosecutor v Chow Kam Meng [2001] MLJU 386; [2001] 7 CLJ 387;

Public Prosecutor v Mogan Ayavoo [2004] 3 CLJ 623; and

(vi) Public Prosecutor v Norfaizal bin Mat (No 2) [2008] 7 MLJ 792. I hold that the prosecution has failed to meet the requirements and the prerequisites of s 32(1) of the Evidence Act 1950. I accordingly ruled that the statements, ID66 and ID67 are inadmissible, as evidence for the prosecution.”(emphasis added) [19] The case makes it clear that the section is an exception to the hearsay rule and that the onus to prove that a person cannot be found lies squarely upon the shoulders of the prosecution. [20] The application of section 32(1) EA is therefore not automatic in nature. As it is an exception to the hearsay rule, the provision must 10 be applied strictly. Applying the tests above to the facts of the case, the necessity principle entails asking the question, have the police taken all necessary steps to ascertain the whereabouts of the maker of the statement. [21] The evidence of the investigation officer (I.O), SP4, was that it was decided that only the accused was to be charged. The said Kesavan was released as a result. [22] SP4 acknowledged that Kesavan was an important witness. Evidence was given that two attempts were made to locate him by placing a phone call on 23.11.2018 and by visiting his last known address on 26.11.2018 but to no avail. [23] If, by the prosecutions own admission the said Kesavan was an important witness, why was he released unconditionally? Applying the tests enunciated in the above cases, the necessity principle entails asking the question, have the police taken all necessary steps to ascertain the whereabouts of the maker of the statement? [24] Some of the available steps and procedures that can be invoked 11 in order to secure the attendance of a potential witness are as follows: i) Issuing a summons under section 34(2) of the Criminal Procedure Code (CPC) or requesting one to be issued by the court. ii) Invoking the inherent powers of the police as stipulated in section 111(1) of the CPC to request the said witness to report to the nearest police station on a daily or weekly basis. iii) Requesting from the courts whilst investigations were still ongoing, the imposition of restrictions under section 111(2) of the CPC. iv) Issuing a summons under section 35 of the CPC to important witnesses well before any suspects were charged in court. v) Applying under section 36 of the CPC to leave summonses at the last known address of the witness. vi) Having exhausted the above steps, to then issue a warrant of arrest under section 47 of the CPC. vii) If having failed to effect arrest on the witness after issuing the warrant of arrest, to request the court to issue a warrant of arrest under section 49 of the CPC. 12 viii) Requiring the person to execute a bond pursuant to section 118 CPC. viii) Should any of the above steps be still unsuccessful, to then place an advertisement in the local newspapers. ix) Utilising the provisions of section 404 of the CPC which allows for a bond to be executed against the witness with a guarantor to ensure attendance at court. [25] In the case of PP v Norfaizal Mat (No.2) [2008] 8 CLJ 576, it was held: “It was necessary for the prosecution and the police to make diligent search and reasonable exertion in order to procure Azril, otherwise the court is unable to come to a finding that Azril could not be found, in which case, his statement would be inadmissible under s. 32(1)(i) of the Evidence Act 1950. Mere ignorance of the whereabouts of Azril was not sufficient to invoke the section. The efforts expended by the prosecution and the police herein were somewhat lackadaisical and lackluster. Where the proceedings concern a capital charge warranting mandatory death sentence upon conviction, the court was reasonably entitled to expect more strenuous efforts of greater tenacity. 13 In the circumstances, ID26 could not be admitted as evidence.” (emphasis added) [26] It is evident that insufficient attempts were made to ascertain the whereabouts of Kesavan and whatever attempts were made by SP4 came too late in the day. [27] As pointed out above, there were several available weapons in the armoury of the prosecution under the Criminal Procedure Code that could and ought to have been resorted to by the prosecution to secure the attendance of the said Kesavan. [28] The pithy attempts made by SP4 therefore could under no circumstances be regarded as sufficient to categorise Kesavan as being a person who could not be found within the meaning of 32(1)(i) of the Evidence Act 1950. [29] As held in the above case, where the case concerned a capital offence, more strenuous efforts were called for. [30] In premises, I dismissed the prosecutions application. 14 C) DUTY OF COURT AT THE END OF THE PROSECUTION CASE [31] The duty of the court at the end of the prosecution case is set out in Section 180(1) of the Criminal Procedure Code (CPC) which stipulates that when the case for the prosecution is concluded the Court shall consider whether the prosecution has made out a prima facie case against the accused. [32] The cases of PP v Dato’ Seri Anwar Bin Ibrahim (No.3) [1999] 2 AMR 2017; [1999] 2 MLJ 1, Looi Kow Chai & Anor v PP [2003] 2 AMR 89, Balachandran v PP [2005] 1 CLJ 85 and PP v Mohd Radzi Bin Abu Bakar [2005] 6 AMR 203 respectively lay down the proposition that at the end of the case for the prosecution, their evidence must be subject to maximum evaluation in order to determine whether a prima facie case is made out. [33] In Looi Kow Chai v Public Prosecutor (supra), the Court of Appeal held: “It therefore follows that there is only one exercise that a judge sitting alone under s 180 of the CPC has to undertake at the close of the prosecution case. He must subject the prosecution evidence to maximum evaluation and to ask himself the question: if I decide 15 to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative then no prima facie case has been made out and the accused would be entitled to an acquittal”. D) ANALYSIS OF THE PROSECUTION CASE Ingredients of the offence of trafficking [34] In order for the prosecution to make out a prima facie case in respect of the charges against the Accused, it is incumbent on them to prove the following ingredients. Firstly, that the drugs are dangerous drugs within the meaning and definition of the Dangerous Drugs Act 1952 ("the DDA"). [35] Secondly, that the Accused was in possession of the impugned drugs. Thirdly, in respect of the First Charge of trafficking, that the Accused was trafficking in the said drugs. The drugs are dangerous drugs within the meaning and definition of the DDA [36] The chemist, SP2, after analysing the exhibits confirmed that it was Cannabis weighing 237 grams nett. These findings were also 16 contained in a Chemist Report (P7). It was further given in evidence that Cannabis is as defined in section 2 of the DDA. [37] The cases of PP v Lam San [1991] 1 CLJ (Rep) 391; [1991] 3 MLJ 426, Munusamy Vengadasalam v PP [1987] CLJ (Rep) 221 and Balachandran v PP [2005] 1 CLJ 85 respectively all held that the court is entitled to accept the testimony of the chemist at face value without the necessity of him or her going into the details of their analysis. [38] I therefore find that the prosecution had proven the nature and weight of all the impugned drugs forming the subject matter of the charge. [39] From the evidence given as to the movement of the exhibits from the time they were recovered until the time they were produced in court, I also found that there was no fatal break in the chain of exhibits. I was satisfied therefore that the drugs produced in court were the same drugs seized by the police during the raid. The Accused was in possession of the impugned drugs 17 [40] Possession can be either actual or presumed. Presumed possession and knowledge is upon the invocation of section 37(d) DDA by proof of custody or control. [41] Possession has nowhere been statutorily defined. However in Toh Ah Loh And Mak Thim v Rex [1949] 1 MLJ 54, the court observed: “Possession, in order to incriminate a person, must have the following characteristics. The possessor must know the nature of the thing possessed, must have in him a power of disposal over the thing, and lastly must be conscious of his possession of the thing.” [42] The requirement of the possessor to have knowledge of the thing possessed however, is still an essential ingredient of possession. In Leow Nghee Lim v Reg [1956] 1 MLJ 28, the phrases custody, control and possession was explained as follows: “Custody means having care or guardianship; goods in custody are in the care of the custodian and, by necessary implication, he is taking care of them on behalf of someone else. You cannot take 18 care of goods unless you know where they are and have the means of exercising control over them. Custody therefore implies knowledge of the existence and whereabouts of the goods and power of control over them, not amounting to possession. Control must be proved as a fact and it must arise from the relation of the person to the goods, irrespective of whether they are contraband. Probably the most helpful definition of possession is:— "The relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing admits, to the exclusion of other persons." This definition does not express, but it does imply that the meaning of the word includes some element of knowledge. A man must know of the existence of a chattel and have some idea of its whereabouts before he can exercise any control over it. The word possession therefore implies some knowledge but not necessarily full or exact knowledge.”(emphasis added) [43] In Neo Koon Cheo v Reg [1959] 1 MLJ 47, the phrases custody, control and possession were discussed as follows: 19 “What does the word "custody" mean? According to the view expressed by Brown, Ag. C.J., in Ho Seng Seng v Rex (1951) MLJ 225, it means watching over or keeping safe. With great respect to the learned Judge, I am unable to agree with his view that the difference between "control" and "custody" is that "control" implies a power of disposal while "custody" does not. I have given the most careful consideration to the meaning of the word "custody" in section 37(d) of the Ordinance under consideration and have come to the conclusion that it means actual physical control. The word "control" in the same section must, therefore, be construed to mean any form of control other than actual physical control. Other names for "custody" are "physical possession," “de facto possession" and "detention." It is referred to in 25 Halsbury's Laws (2nd Edn.) 194, para. 327, in these terms: "The word 'possession' may mean effective, physical or manual control, or occupation, evidenced by some outward act, sometimes called de facto possession or detention." I would adopt the following definitions of "custody" and "possession" given by the eminent American jurist, Roscoe Pound, in his "Introduction to American Law": 20 "Custody is a mere condition of fact, a mere physical holding of or physical control over the thing. Where custody (exercised by oneself or by another) is coupled with the mental element of holding for one's own purposes, there is possession." Support for my view that "custody" means actual physical control is to be found in Regulation 6(2)(b) of the Dangerous Drugs Regulations, 1951, which provides as follows:— "For the purposes of these Regulations: — a person shall be deemed to be in possession of a drug or preparation if it is in his actual custody or is held by any other person subject to his control or for him or on his behalf." From this it follows that under this Regulation a drug is in a person's actual custody if it is held by him and not by someone else, i.e. if it is in his actual physical control.”(emphasis added) [44] In Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237, possession was defined in the following terms: "Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th Edition, page 304):— 21 "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." To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact 22 that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shews such an intention. Or it must be clear that the circumstances in which it is found shew such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so.”(emphasis added) [45] From a distillation of the above, custody is defined as having care or guardianship over goods which by implication means that the person is keeping the goods on behalf of someone else. This implies knowledge of the existence and whereabouts of the goods and power of control over them short of having possession. [46] Possession is when a person is so situated with respect to a thing that he has the power to deal with it as owner to the exclusion of 23 all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. [47] The authorities are also clear that it must be proven that the accused had the requisite mental element or knowledge of the impugned exhibit in order to be in possession. It is equally clear that such knowledge cannot in the absence of an admission be proven by direct evidence but by way of inference from the surrounding circumstances. [48] The circumstances disclose that after the police conducted an observation for around 20 minutes at the scene, the lift at Level 10 of Block B opened and two male Indians who were the accused and Kesavan a/l Arumugam emerged from the lift. [49] SP3 was categorical when he testified that when the lift door opened he saw the accused holding a red plastic bag which upon inspection was found to contain the impugned drugs. [50] However, the defence submitted that the said plastic bag was either found on the lift floor or if the accused was in fact holding it, he did it at the behest of Kesavan a/l Arumugam at the time and 24 was therefore only a momentary carrier without knowledge of the contents. [51] The defence also alluded to the Opening Speech by the prosecution which stated that the complainant literally collided or chanced upon the accused. [52] This, it was submitted, was at variance with the testimony of SP3. It was therefore suggested that there existed a danger that SP3 was attempting to bolster his testimony against the accused. [53] The defence further submitted the fact that the Search List (P10) was also signed by Kesavan a/l Arumugam and the sum of RM120.00 found on him although this was not listed in P10 indicated that the drugs in fact belonged to the said Kesavan. [54] It was also submitted by the defence that because the quantity of drugs recovered was small and the arrest which was carried out at about 9.40 p.m. lasted only 10 minutes whereas the arrest report was made only at 3.01 a.m. involving a time lapse of 5 hours, the delay was attributable to the fact that there was actually a 25 negotiation between the police and the detainees as to whom should bear the responsibility for the impugned drugs. [55] Firstly, with respect to what was stated in the opening speech by the prosecution, the Court of Appeal in Timhar Jimdani Ong & Anor v. PP [2010] 1 MLJ 775 held that the prosecution’s failure to mention the details in the opening speech before the commencement of the trial is not fatal as the opening speech is not evidence. The Court of Appeal said: “One of the purposes of s.179 of the CPC is to satisfy the court that the charge against an accused person is not frivolous and that there is some material evidence for proceeding against him….. The opening statement is not an evidence. It is thus not a requirement that this statement shall contain elaborate details. The omission of the mention of any part of the prosecution evidence in its opening statement….. is inconsequential and not destructive to the prosecution case.” [56] It therefore cannot be taken without more that if what was said in the opening statement is at variance with the evidence that unfolds, this must mean that there exists a contradiction. 26 [57] SP3 said that it was the accused who was holding the red plastic bag and not the said Kesavan. He stood firm on this point when challenged that it was otherwise. [58] There was no indication or suggestion by the defence or from the evidence that the accused and SP3 were known to each other prior to the arrest that day. There can therefore exist no good reason for SP3 to fabricate or concoct evidence just in order to frame the accused. [59] The submission that because the Search List (P10) was also signed by Kesavan a/l Arumugam and the sum of RM120.00 found on him, although this was not listed in P10, indicated that the drugs in fact belonged to the said Kesavan, was mere conjecture and speculation on the part of the defence without any basis. [60] As explained in the case of San Soo Ha v PP [1968] 1 MLJ 34, the purpose of complying with the procedures regarding a search list is to merely ensure that incriminating articles obtained as a result of a search were in fact recovered and by so doing to exclude the possibility of any concoction or malpractice of any kind. It was also held there that failure to comply with the provision 27 relating to the search list may cast doubt on the bona fides of the parties conducting the search. [61] I do not think however, that the position as regards a search list can go any further and especially to necessarily lead to the conclusion that the drugs in fact belonged to the said Kesavan. [62] The defence also alleged that the delay in lodging the police report was indicative of the fact that there were actually negotiations taking place with regards to whom the blame for carrying the drugs ought to be assigned to. [63] The conclusion suggested by the defence here again is mere speculation and conjecture. Under all the circumstances, I am satisfied that the credibility of SP3 stood intact and I see no reason to disbelieve him. I also found that it was not necessary for his evidence to be corroborated as this was not a case which required corroboration as a matter of law or of prudence. In any event, as alluded to earlier, I found SP3’s evidence to be credible. [64] Therefore I am satisfied that it was the accused who in fact was holding the red packet containing the impugned drugs in his hand 28 and that the said packet was not carried by the said Kesavan nor was it found on the floor in the lift. I also find that based upon the evidence the arrests took place outside the lift and not inside the lift as suggested by learned counsel for the accused. [65] This is so far as the actus reus of the charge goes. With regard to the mens rea or the element of knowledge, there was evidence that both the accused and the said Kesavan looked fearful and nervous ”ketakutan dan gelisah”. [66] This display of conduct is sufficient to raise the inference of knowledge on the part of the accused. See section 8 of the Evidence Act 1950 and the case of Parlan Bin Dadeh v Public Prosecutor [2008] 6 MLJ 19. [67] In the absence of such explanation for his reaction upon being approached by the police, it could be validly used as evidence against the accused. On the evidence there was no such explanation forthcoming. In the circumstances, the legitimate inference to be drawn from the evidence was that the accused knew what he was carrying. 29 [68] Although the evidence disclosed that a similar reaction emanated from the said Kesavan, this does not negate the inference of knowledge on the part of the accused as it was the accused who was holding the said plastic bag. [69] Under all the circumstances therefore, I find that the accused had actual as opposed to presumed possession of the impugned drugs. The accused was trafficking in the said drugs [70] The testimony of SP2 confirmed that the nett weight of the impugned drugs after analysis weighed 237 grams of Cannabis. This was confirmed in a Chemist Report (P7). [71] The elements of possession and the nature and weight of the Cannabis have been proven by the evidence adduced. The presumption under section 37 DDA reads as follows:

Presumptions In all proceedings under this Act or any regulation made thereunder—

……. 30

…….

…….

…… (da) any person who is found in possession of—

(vi) 200 grammes or more in weight of cannabis otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug. [72] As the weight of the Cannabis here has been proven to be a total of 237 grams which is above the prescribed weight of 200 grams under section 37 (da) DDA, the statutory presumption of trafficking has arisen against the accused. [73] It was now incumbent on the accused to rebut such presumption on a balance of probabilities in order to earn an acquittal. See PP v Yuvaraj [1969] 2 MLJ 89. Other issues Section 114(g) [74] Learned counsel for the accused submitted that the adverse inference under section 114(g) of the Evidence Act 1950 ought to 31 be invoked against the prosecution for failing to call the said Kesavan. [75] I do not however agree to this as the prosecution’s inability to call Kesavan does not arise from any motive on their part in concealing or suppressing evidence but more from a lack of initiative and efforts in securing his attendance after his release. See Munusamy v PP [1987] 1 MLJ 492. I found no merit therefore in the defence submission on this point. No forensic evidence [76] Although there was no evidence of dusting for fingerprints or DNA evidence here, it is trite that such evidence is at best corroborative. In the light of direct evidence that it was the accused who held the plastic bag containing the impugned drugs, such omission was not fatal to the prosecution case. Decision at the end of the prosecution case [77] Upon a maximum evaluation of the evidence, and for the reasons expressed above, I found that the prosecution had proven a prima facie case against the accused in respect of the charge as 32 preferred pursuant to section 180(3) Criminal Procedure Code (CPC) and I called upon him to enter on his defence. [78] After the three alternatives were explained to him, the accused elected to give sworn testimony. E) DEFENCE CASE [79] The accused testified that he lived with his maternal grandmother at Block A, PPR, Kg Baru, Air Panas, Setapak, Wangsa Maju because his immediate family disowned him due to the fact that he is a drug addict. [80] The accused said that he was jobless and he does odd jobs around PPR, Kg Baru, Air Panas to earn money for his food and drugs. [81] The accused said that he knew a person by the name of Kesa or “abang Kesar” for a period of 6 months but does not know his full name. According to the accused, Kesa frequently came over to the flats where the accused was staying. 33 [82] When there the said Kesa will request the accused to buy food and drinks for him and in return Kesa would give him some tips in the form of money which the accused would then use to buy drugs for himself. [83] The accused said that on 12.2.2018 at around 9.00 to 9.30p.m., he was in the vicinity of Block B when he saw Kesa hurriedly entering the Block while holding a red plastic bag. [84] Upon seeing this, the accused followed Kesa in the hope of getting some money from him. Upon entering the lift together with Kesa, the latter pressed the button to the 11th floor. The accused noticed that Kesa was still holding the red plastic bag. [85] The accused testified that as the lift door opened at the 11th floor and as he stepped out, he was apprehended by some unknown males which he later found to be the police. They conducted a physical search on him but found nothing incriminating. [86] The accused then said that the police also detained Kesa in the lift and conducted a body search on him as a result of which they 34 found motorcycle keys, some money, a gold chain and a gold ring. Nothing was seized from the accused. [87] The police then recovered the red plastic bag from the floor inside the lift and told the accused and Kesa that the red plastic bag belonged to the both of them. [88] The accused said that at all times he noticed that the plastic bag was carried by Kesa until the lift reached the 11th floor. The accused maintained that he had never carried the plastic bag and that he does not know the contents of the said plastic bag. He also said that he does not know how the red plastic bag came to be on the floor of the lift. [89] The accused said that he and Kesa were then arrested and brought to the IPD at Wangsa Maju where he was subject to interrogation and was asked to admit that the impugned drugs belonged to him. Upon his refusal to do this, the accused said that he was beaten up by the police. [90] The accused during the course of cross examination denied when it was suggested to him that Kesa was a fictitious character. He 35 also denied that he carried the plastic bag and maintained that it was carried by Kesa. [91] Although he said he was assaulted by the police, the accused however admitted that he did not lodge any police report regarding his assault by the police for fear that they might do something to him and that he was unable to bear being beaten. F) DUTY OF THE COURT AT THE CONCLUSION OF THE TRIAL [92] The duty of a trial court at the conclusion of the defence case is set out in section 182 A of the Criminal Procedure Code (CPC) which imposes an obligation upon the court to consider all the evidence to decide whether the prosecution has proved its case beyond reasonable doubt. [93] See also Prasit Punyang v Public Prosecutor [2014] 4 MLJ 282 and also Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773. In the former case, the Court of Appeal speaking through Azahar Mohamed JCA (“as His Lordship then was”), held: “In accordance with the provisions of s 182A(1) of the Criminal Procedure Code, it is the bounden duty of the learned JC, at the 36 conclusion of the trial, to consider all the evidence adduced before him and shall decide whether the prosecution has proved its case beyond reasonable doubt. The legislature has advisedly used the term all the evidence. The emphasis must be on the word all.”(emphasis added) [94] Aside from the above, the correct thought process and stages that should be followed by a trial court in the assessment and evaluation of the defence evidence is that as encapsulated in the time honoured decision of Mat v Public Prosecutor 1963 29 MLJ 263, where it was held by Suffian J (as he then was) as follows: “The position may be conveniently stated as follows: –

If you are satisfied beyond reasonable doubt as to the accused's guilt Convict.

If you accept or believe the accused's explanation Acquit.

If you do not accept or believe the accused's explanation Do not convict but consider the next steps below. 37

If you do not accept or believe the accused's explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt Convict.

If you do not accept or believe the accused's explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt Acquit.” [95] The approach in Mat v Public Prosecutor was endorsed by the Federal Court as being the correct one to adopt when evaluating the evidence of the defence case in Public Prosecutor v Mohd Radzi Bin Abu Bakar [2005] 6 MLJ 393. [96] If a statutory presumption has arisen as it has here, it is incumbent on the Accused to rebut such presumption on a balance of probabilities in order to secure an acquittal. See PP v Yuvaraj [1969] 2 MLJ 89. G) ANALYSIS OF THE DEFENCE CASE [97] The position adopted by the defence is that it was not the accused but a person whom he knew as Kesa who brought the red plastic 38 bag containing the impugned drugs into the lift with him. The testimony of SP3 also confirmed that a person named Kesavan a/l Arumugam was arrested together with the accused that day. [98] However, the accused testified that when the lift opened at the 11th floor, the said plastic bag was found by the police on the floor of the lift. There was however no evidence to indicate when the plastic bag left the hand of the said Kesa and came to be found on the floor of the lift. The accused in evidence said that he does not know how the plastic bag came to be on the floor of the lift. [99] The accused was found in the lift with the said Kesa, having by his own admission followed after Kesa in the hope that he might receive some money from Kesa as he has in the past. SP3 also testified that there were only two persons in the lift, namely, Kesavan or “Kesa” and the accused. It is therefore inconceivable that he could not have explained how the plastic bag went from being with Kesa to ending up on the floor of the lift. [100] The accused himself denied that he carried the packet. This however, is in direct contradiction to the evidence of the raiding 39 officer (SP3) that it was the accused who was carrying the said plastic bag. [101] There was no evidence of any prior relationship between SP3 and the accused nor was there any evidence to suggest that SP3 or any of the other members of the raiding party had known the accused prior to the arrests. [102] This being the case, it is difficult to envisage that there was any axe to grind on the part of SP3 or any of the members of the raiding party that would give rise to any reason or motive for them to want to frame the accused. [103] This being the case, I find no reasons to disbelieve SP3 when he said he saw the accused carrying the red plastic bag when the lift door opened. Once again, it bears repetition that SP3 was categorical when he also said that the other person was not carrying anything. [104] I therefore disbelieve the accused’s version of events that it was the said Kesa who carried the plastic bag and that when the lift door opened, the packet was found on the floor of the lift. 40 [105] The version of the accused also did not raise a reasonable doubt as to his possession of the impugned drugs and neither did it rebut the statutory presumption of trafficking on a balance of probabilities. [106] I also therefore find that the version of the accused is but a mere bare denial that he carried the said plastic bag. The accused also, contrary to the prosecution evidence, testified that the arrest took place not on the 10th floor but on the 11th floor instead. Again, I find no reason to disbelieve the prosecution evidence that the arrests did in fact take place on the 10th floor. [107] The photograph tendered (P 4B(D)) of the place of incident also showed the lift area on the 10th floor. There could be no reason why the police photographer took a photograph of the 10th floor if the incident actually happened on the 11th floor. [108] The reaction of the accused at the time of arrest was also said to be one of “ketakutan and gelisah” or scared and nervous. As already explained during the analysis of the case for the prosecution, such reaction is relevant under section 8 of the 41 Evidence Act 1950 and also the principle expressed in Parlan Bin Dadeh v Public Prosecutor (supra) to indicate a guilty mind. [109] Under all the circumstances and in the absence of a plausible explanation for such reaction, the inference is that the accused knew that the red plastic bag he was carrying contained cannabis. [110] As for the fact that the accused did not run away when arrested, it must be appreciated that under the circumstances, having just exited the lift at the 10th floor of the Block and being confronted by the members of the raiding party, any opportunity for fleeing the scene was undoubtedly non-existent or minimal at best. [111] SP3 also said that the lighting at the lift area was bright so there is no room to argue or contend that he may have been mistaken that he in fact saw the accused holding the said red plastic bag. [112] As for any CCTV evidence, SP3 had already explained that there was no CCTV in the area in any event. The lack of forensic evidence in the form of DNA or fingerprints on the plastic bag, being corroborative in any event, also did not prejudice the prosecution case in light of the direct evidence in this case. 42 [113] The accused also led evidence that he is a drug addict. However, although the accused was tested positive for drugs as confirmed by SP3, SP3 could not remember for what substance that was. SP3 also denied that the accused got drugs from Kesa because the former was unemployed. [114] Therefore, besides the fact that the accused himself said that he was a drug addict, there was no other evidence to indicate that he was a mere drug addict. There were no medical reports nor any history of drug addiction adduced or tendered to support this. There was also no apparatus such as syringes, instruments for smoking like paper rolls or like implements found on the accused to indicate that he was a drug addict. [115] In any event, even if the accused was an addict, or even if, as testified to by SP3, he did consume drugs, this does not of itself establish that he was not also trafficking in the drugs. There is no principle that establishes that someone who consumes drugs does not also traffic in it. [116] Under all the circumstances of the case, and after considering all the evidence, I find that the accused has failed to raise a 43 reasonable doubt as to possession of the impugned drugs nor has he rebutted the statutory presumption of trafficking under section 37(da) DDA on a balance of probability. [117] I find therefore that the prosecution had successfully proven their case beyond reasonable doubt pursuant to 182A (2) CPC against the accused. [118] I therefore convict the accused of the charge of trafficking under section 39B(1)(a) DDA. Submissions on Sentence [119] Before I proceeded to sentence the Accused, I invited the defence and the prosecution to submit on the provisions of section 39B section (2A) DDA. The amended section 39B DDA [120] Section 39B of the DDA was amended vide the Dangerous Drugs (Amendment) Act 2017 [Act A1558] and came into effect on 15th March 2018 P.U. (B) 127. The amended section 39B in so far as is relevant reads: 44

Trafficking in dangerous drug

No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—

traffic in a dangerous drug;

offer to traffic in a dangerous drug; or

do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than fifteen strokes.

In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:

there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;

there was no involvement of agent provocateur; or

the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and 45

that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

For the purposes of subsection (2A), "enforcement agency" means—

the Royal Malaysia Police;

the National Anti-Drugs Agency;

the Royal Malaysian Customs Department;

the Malaysian Maritime Enforcement Agency; or

any other enforcement agency as may be determined by the Minister. [121] A perusal of the Hansard of 30.11.2017 will reveal that in the relevant Parliamentary Debate, the then Honourable Minister Dato’ Sri Azalina said in response to a question posed: “Yang Berhormat tanya saya tentang perkataan ‘and’ dalam hujung seksyen 39B(2A) (d). Dasar yang telah ditentulah ialah supaya perenggan (d) menjadi sesuatu yang kehendak kepada mandatori iaitu perlu dipenuhi sekiranya mahkamah ingin mempertimbangkan untuk menjatuhkan hukuman penjara seumur hidup. Dalam hal ini, (a), (b) dan (c) – (a), (b), (c) dibaca secara (sic) injunctive tetapi akan dibaca secara conjunctive dengan 46

(d). Maknanya (d) itu adalah keperluan utama untuk hakim menggunakan kuasa budi bicara.” [122] Continuing in the same vein, the Honourable Minister continued: “Kerajaan tidak bersetuju dengan penggantian perkataan ‘and’ dengan perkataan ‘or’ di akhir frasa (2A)(c). Diperhatikan bahawa terletaknya perkataan ‘and’ di akhir fasal (2A) (c) bermaksud mahkamah hendaklah mengambil fasal (2A)(d) secara bersama atau conjunctive dengan salah satu daripada (2A) (a), (b) atau (c) atau mana-mana kombinasi daripada ketiga-tiganya. Dalam kata lain, pertimbangkan terhadap fasal (2A)(d) adalah wajib dalam setiap kes di mana mahkamah membuat pertimbangan sama ada hendak menjatuhkan hukuman penjara seumur hidup dengan sebatan.” [123] Hansard also reveals the following, also from the same Minister as follows: “Kerajaan tidak bersetuju dengan cadangan untuk mengeluarkan perkataan ‘only’ dalam fasal (2A) dan juga tidak bersetuju dengan pindaan hukuman yang dicadangkan. Kerajaan berpandangan 47 bahawa pengeluaran perkataan ‘only’ tersebut akan membuka luas faktor-faktor yang boleh diambil kira oleh mahkamah dalam memutuskan hukuman. Keadaan ini juga akan membawa kepada situasi ketidakseragaman dalam hukuman sebagaimana berlakunya sebelum tahun 1983.” [124] Finally, the Honourable Minister also said: “Diperhatikan di sini bahawa faktor-faktor (a), (b) dan (c) berkaitan dengan kesalahan spesifik yang telah pun dilakukan oleh tertuduh. Hanya factor (d) yang berkaitan dengan satu kelebihan yang boleh diperolehi agensi penguatkuasaan dalam usaha mengendalikan pengedaraan dadah. Olehitu, factor

harus wajib dipertimbangkan oleh makhamah jika niat dan semangat di sebalik pindaan ini hendak dizahirkan iaitu memperkasa agensi penguat kuas a dalam memerangi pengedaran dadah dan melindungi kepentingan masyarakat.” [125] A plain reading of section (2A) will indicate that paragraphs (a) to

are meant to be read disjunctively while paragraph (d) must be read conjunctively with either of the requirements in (a) to (c). The 48 phrase ‘and’ just before paragraph (d) makes this clear. The requirement under paragraph (d) is therefore mandatory. [126] It is also clear that the phrase ‘only’ in the opening words of section (2A) means the court can only consider the matters enumerated in paragraphs (a) to (d) in deciding whether to exercise the discretion. The Hansard references further reinforces this view. Sentence [127] Having heard submissions from respective parties, I found nothing in the evidence to suggest that the requirement under paragraph

was satisfied. [128] There was no evidence to show that the Accused had assisted an enforcement agency in disrupting drugs trafficking activities. [129] Having considered the submissions of all parties, I found that there was no material upon which I could have exercised such discretion to sentence the accused to imprisonment for life and whipping. I therefore sentenced the Accused to be hanged by the neck until he was dead. 49 Dated: 11 July 2019 sgd. ( COLLIN LAWRENCE SEQUERAH ) Judge High Court of Malaya Kuala Lumpur Counsels: For the Prosecution … Tn. Mohd. Radzi bin Abdul Razak Public Prosecutor [Attorney General’s Chambers] For the Respondent … En. S. Narashiman a/l Subramaniam [Messrs. Narasimhan & Associates]