SELVARAJOO A/L KASINATHAN

JA-45A-24-04/2019 Kand. 26 12/04/2022 15:32:37 IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM CRIMINAL TRIAL NOS: JA-45A-6-02/2019 & JA-45A-24-04/2019 PUBLIC PROSECUTOR AND SELVARAJOO A/L KASINATHAN GROUNDS OF JUDGMENT INTRODUCTION [1] The accused was charged with the following three charges: “Pertuduhan pertama Bahawa kamu pada 13.7.2018 jam lebih kurang 0900 malam, di alamat A-10-03, Pangsapuri Puncak Kempas Utama, Jalan Kempas 2/6, Taman Kempas Utama dalam daerah Johor Bahru, di dalam Negeri Johor Darul Ta’zim telah mengedar dadah berbahaya, iaitu Heroin seberat 61.10gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Pertuduhan kedua Bahawa kamu pada 13.7.2018 jam lebih kurang 0900 malam, di alamat A-10-03, Pangsapuri Puncak Kempas Utama, Jalan 1 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal Kempas 2/6, Taman Kempas Utama dalam daerah Johor Bahru, di dalam Negeri Johor Darul Ta’zim telah mengedar dadah berbahaya, iaitu Methamphetamine seberat 272.67gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Pertuduhan ketiga Bahawa kamu pada 13.7.2018 jam lebih kurang 0900 malam, di alamat A-10-03, Pangsapuri Puncak Kempas Utama, Jalan Kempas 2/6, Taman Kempas Utama dalam daerah Johor Bahru, di dalam Negeri Johor Darul Ta’zim telah didapati ada dalam milikan kamu dadah berbahaya, iaitu Cannabis seberat 47.01gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A(1) Akta yang sama.” THE PROSECUTION CASE [2] The learned Deputy Public Prosecutor called a total of 13 witnesses for the prosecution case. [3] The prosecution case is established on the following facts. On 13 July 2018, Mohd Nasirudin bin Adnan (SP6) and his team from the IPK Johor narcotics criminal investigation department detained and searched the accused by the side of the road at Setia Tropika 1/21 Taman Setia Tropika, Johor Bahru. 2 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal [4] As a result of the search conducted, a bunch of keys were found which consisted of a road tax, Yamaha 135LC motorcycle key, key with “Lock” written on it and key with “Ezon” written on it. Upon inspection of the accused’s jeans that he was wearing, an Imperial Horse’s brand wallet was found in the right rear pocket which contained a white access card written “Otis-HID-ID”. [5] SP6 took the accused to the Security Police’s Office Setia Tropika. SP6 questioned the accused and read to the accused caution statement as per section 37(1)(b) Dangerous Drugs Act 1952. The accused informed that one of the keys is his house key and the access card is the access card to his house. [6] SP6 then took the accused to Pangsapuri Puncak Kempas Utama, Jalan Kempas Utama 2/6, Taman Kempas Utama, Johor Bahru. The complainant and the raiding team, together with the accused entered into the said condominium gate using the access card found in the wallet of the accused. Then, the accused took the complainant and the officers to the condominium unit with the address B-04-10. [7] On 13 July 2018 at 9pm, the accused person directed the complainant and the raiding officers to address A-10-03, Pangsapuri Puncak Kempas Utama, Jalan Kempas Utama, Taman Kempas Utama, Johor Bahru. [8] Upon arriving at the address, the accused opened the gate with the key written “Lock”. Then the accused used the access card written “Otis- HIS-ID” and pressed number 654321* on the door lock. After the door was successfully opened, the complainant and raiding officers entered the 3 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal house. As a result from the inspection of the unit, the following items were found on the table before the TV: i) 9 transparent plastics containing white lumps and powder suspected to be heroin; ii) 3 transparent plastics containing crystals suspected to be heroin; iii) 2 compressed lumps wrapped with black wrapping containing white lumps and powder suspected to be heroin; and iv) 1 compressed lump wrapped with brown wrapping containing dried leaves suspected to be cannabis. [9] The complainant also seized mixed bills amounting to RM3350.00 cash on the same table. The complainant then seized the case items brought the items with the accused to the narcotics criminal investigation department IPK Johor for further action. [10] The case items were taken to the Department of Chemistry Malaysia for analysis. The chemist confirmed that the items are 61.10grammes of heroin, 272.67grammes of methamphetamine and 47.01grammes of cannabis, which are dangerous drugs. CONCLUSION OF PROSECUTION CASE [11] At the end of the prosecution case, the court is to decide if the prosecution has established a prima facie case. In this regard, section 180 (1) of the Criminal Procedure Code provides: 4 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal “Section 180, Procedure after conclusion of case for prosecution. (1) 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. (2) If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal. (3) If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence. (4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.” [12] Founded on subsection 180(1) of the Criminal Procedure Code, it is the duty of the court to consider whether the prosecution has established a prima facie case against the accused at the end of the prosecution case. [13] The phrase “prima facie case” is defined in Mozley and Whitley’s Law Dictionary (11th Edn) as: “A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be 5 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal overthrown only by rebutting evidence adduced by the other side.” [14] In the Federal Court case of Balachandran v Public Prosecutor [2005] 1 CLJ 85, the court stated: “A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal. The phrase “prima facie” is defined in similar terms in Mozley and Whitelay’s Law Dictionary, 11th edn as: A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then is one which established sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side. The result is that he force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen. On the other hand, prima facie case has not been made out it means that there is no material evidence which can be believed in the sense as described earlier. In order to make a finding either way the court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established… The test at the close of the case for prosecution would therefore be: Is the 6 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative, then a prima facie case has been made out.” [Emphasis added] [15] The Court of Appeal in the case of Public Prosecutor v Tan Sri Kasitah Gaddam [2009] 6 MLJ 494 stated the following pertaining to a prima facie case: “A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of every prosecution witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.” [Emphasis added] [16] A court must therefore exercise maximum evaluation of the evidence when determining whether the prosecution had proven a prima 7 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal facie case against the accused. Thus, in order to determine a prima facie case, a judge is required to conduct a maximum evaluation of all the evidence before him. The evidence of the prosecution witnesses must be subject to strict critical scrutiny. This includes a positive evaluation of the credibility and reliability of all evidence adduced in order to establish if the ingredients of the offence have been established. ANALYSIS AT END OF PROSECUTION CASE [17] Section 39B of the Dangerous Drugs Act 1952 provides: “Section 39B. Trafficking in dangerous drug. (1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia— (a) traffic in a dangerous drug; (b) offer to traffic in a dangerous drug; or (c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug. (2) 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. (2A) In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less 8 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal than fifteen strokes, may have regard only to the following circumstances: (a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested; (b) there was no involvement of agent provocateur; or (c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and (d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia. (2B) For the purposes of subsection (2A), “enforcement agency” means— (a) the Royal Malaysia Police; (b) the National Anti-Drugs Agency; (c) the Royal Malaysian Customs Department; (d) the Malaysian Maritime Enforcement Agency; or (e) any other enforcement agency as may be determined by the Minister. (3) A prosecution under this section shall not be instituted except by or with the consent of the Public Prosecutor: Provided that a person may be arrested, or a warrant for his arrest may be issued and executed, and any such person may 9 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal be remanded in custody notwithstanding that the consent of the Public Prosecutor to the institution of a prosecution for the offence has not been obtained, but the case shall not be further prosecuted until the consent has been obtained. (4) When a person is brought before a Court under this section before the Public Prosecutor has consented to the prosecution the charge shall be explained to him but he shall not be called upon to plead, and the provisions of the law for the time being in force relating to criminal procedure shall be modified accordingly.” [18] In respect of the charge preferred against the accused, the prosecution is required to prove the ingredients to establish a prima facie case. [19] In this instant case for an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952, the ingredients are – (i) drugs are dangerous drugs, within the meaning and definition of the Dangerous Drugs Act 1952 (DDA); (ii) the accused was in possession of the impugned drugs; and (iii) the accused was trafficking in the drugs. 10 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal [20] For an offence under section 6 of the Dangerous Drugs Act 1952, ingredients required to be proven by the prosecution are: (i) drugs are dangerous drugs, within the meaning and definition of the Dangerous Drugs Act 1952 (DDA); and (ii) the accused was in possession of the impugned drugs. (i) drugs are dangerous drugs, within the meaning and definition of the Dangerous Drugs Act 1952 (DDA); [21] The chemist, Puan Nur Hafiza binti Md Yusop (SP 2) concluded her analysis in her chemist report [Exhibit P8] and oral evidence that the drugs seized from the crime scene are confirmed to be as follows: (i) one envelope that contained: (a) 1 plastic packet (marked as EZ4) with white crystals and weight total of 24.39grammes, found to contain 17.39grammes of Methamphetamine; and (b) 1 plastic packet (marked as E10) with brown lumps and powder weight total of 14.61grammes, found to contain 0.33grammes of Heroin, (ii) 9 plastic packets (marked as E1-E9) with brown lumps and powder weight total of 2548.89grammes, found to contain 58.62grammes of Heroin, 11 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal (iii) 3 plastic packets (marked as EZ1-EZ3) with white crystals weight total of 363.90grammes, found to contain 255.45grammes of Methamphetamine, (iv) 1 compressed package (marked as B1) which was wrapped with adhesive tape contained: (a) a plastic packet with white crystals weight total of 11.90grammes, found to contain 8.50grammes of Methamphetamine, (b) a plastic packet with white powder weight total of 54.62grammes, found to contain 1.25grammes of Heroin, (v) 1 compressed package (marked as B2) which was wrapped with adhesive tape contained: (a) a plastic packet with white crystals weight total of 12.30grammes, found to contain 8.72grammes of Methamphetamine, (b) a plastic packet with white powder weight total of 53.89grammes, found to contain 1.23grammes of Heroin, (vi) 1 compressed package (marked as B3) which was wrapped with adhesive tape contained plants that was compressed into lumps was found to be 47.01grammes of Cannabis. 12 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal [22] Before proceeding any further, this Court formally notes that there was a slight discrepancy on the weight of the drugs in the charge sheet compared to the chemist report. Total weight from the charge sheet was stated to be 61.10grammes of Heroin, 272.67grammes of Methamphetamine and 47.01grammes of Cannabis; whilst from the chemist report, Heroin was found to be 61.43grammes and Methamphetamine to be 290.06grammes. [23] Nevertheless, this is not fatal to the present case as this court has the power to invoke section 156, illustration (d) Criminal Procedure Code (CPC) and regard this error as immaterial. Section 156 of the CPC reads as follows: “Section 156. Effect of errors No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by that error or omission. ILLUSTRATIONS (a) A is charged under section 242 of the Penal Code with “having been in possession of counterfeit coin, having known at the time when he became possessed of it that the coin was counterfeit” the word “fraudulently” being omitted in the charge. Unless it appears that A was in fact misled by this omission the error shall not be regarded as material. (b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out 13 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal incorrectly. A defends himself, calls witnesses, and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material. € A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from these facts that the omission to set out the manner of the cheating was, in this case, a material error. (d) A is charged with the murder of John Smith on the 6 June, 1910. In fact the murdered person’s name was James Smith and the date of the murder was the 5 June, 1910. A was never charged with any murder but one, and had heard the inquiry before the Magistrate which referred exclusively to the case of James Smith. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial. € A was charged with murdering James Smith on the 5 June, 1910, and John Smith (who tried to arrest him for that murder) on the 6 June, 1910. When charged for the murder of James Smith he was tried for the murder of John Smith. The witnesses present in his defence were witnesses in the case of James Smith. The Court may infer from this that A was misled and that the error was material.” [Emphasis added] [24] It is impossible for the accused to be misled by the slight difference of weight as all the impugned drugs were presented before the court during trial before all parties and were correctly identified by prosecution 14 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal witnesses. There is no issue on the identity of the said drugs, thus the clerical error does not in any way affect the legality of the charge. [25] Moreover, as her ladyship Aziah Ali JCA (as her ladyship once was) in the case of Ekwe Sampson Odii v Pendakwa Raya [2016] MLJU 1696 stated: “[28] With regard to the discrepancies in the gross weight of the drugs as stated in the initial charge sheet and the weight and the gross weight obtained by the chemist, we refer to Hasbala Mohd Sarong v PP [2013] 6 CLJ 945 wherein the Federal Court said amongst others that the weighing done by the chemist is the determining factor in the weight of the drugs and forms the basis of the charge, rather than the weighing process by the police since it is common knowledge that the weighing process undertaken by the police after the seizure of the drugs is only for classification purposes in the determination of the charge that will most likely to be preferred against the accused and/or arrested person. More often than not the disparity in weight of the drugs recorded is inevitable due to different weighing methods preferred and the different weighing apparatus used by the police force and the chemist department. Hence we find no merit in this issue.” [Emphasis added] [26] The court is entitled to accept the opinion of the expert when the opinion of the chemist is limited to the nature and identity of the substance. 15 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal The Federal Court in the case of Munusamy Vengadasalam v PP [1987] CLJ (Rep) 221 held: “We are therefore of the view, that in this type of cases where the opinion of the chemist is confined only to the elementary nature and identity of the substance, the Court is entitled to accept the opinion of the expert of its face value, unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion. So long as some credible evidence is given by the chemist to support his opinion, there is no necessity for him to go into the details of what he did in the laboratory, step by step.” [Emphasis added] [27] Furthermore, in Balachandran v Public Prosecutor [2005] 2 MLJ 301 the court held that the evidence of the chemist is to be taken at face value. The court held that: “It has been held by the trilogy of the (then) Supreme Court cases of Munusamy v. PP [1987] 1 MLJ 492, PP v Lam Sam [1991] 3 MLJ 426 and Khoo Hi Chiang v. PP [1994] 1 MLJ 265 that the court is entitled to accept the evidence of the chemist on its face value without the necessity for him to go into details of what he did in the laboratory step by step unless it is inherently incredible or the defence calls evidence in rebuttal by another expert. The rationale of this view is lucidly explained in Khoo Hi Chiang v. PP [1994] 1 MLJ 265 where it was held that the evidence of a chemist on dangerous drugs analysed by him is one of 16 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal fact and not of opinion. In the circumstances the evidence of a chemist is not controlled by s. 51 of the Evidence Act 1950 thereby making it unnecessary for him to testify on the test conducted by him in arriving at his conclusion. The evidence of the chemist is therefore sufficient. The trial judge had accepted it. The defence did not seriously challenge the evidence beyond merely putting to the chemist that his analysis was improper and inadequate. The chemist disagreed with the suggestion. This submission of counsel cannot therefore be sustained.” [Emphasis added] [28] Founded on the evidence of SP2 [Exhibit P8] and the authorities referred to, this court finds that the prosecution has proven the nature and weight of the impugned drugs which is the subject matter of the charge. This court henceforth finds that the prosecution has fulfilled the first ingredient of the offence. [29] Pertaining to the movement of the exhibits from the time the exhibits were recovered until the time the exhibits were produced in court, this court found no fatal break in the chain of exhibits and is therefore satisfied that the drugs produced in court were the same drugs seized by the police during the raid. (ii) The accused was in possession of the disputed drugs. [30] The second ingredient requires the prosecution to prove that the accused had possession of the impugned drugs. Before this court 17 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal considers whether the prosecution has proven possession in this case, it would be prudent to consider the meaning of possession. This court alluded to the case of Toh Ah Loh And Mak Thim v Rex [1949] MLJ 54 the court stated that: “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.” [31] The requirement of knowledge of the thing possessed is an essential ingredient of possession. In Leow Nghee Lim v Reg [1956] 1 MLJ 28, the meaning of the “custody’’, “control” and “possession” were elaborated as reproduced below: “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 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:- 18 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal “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] [32] In the case of Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237, possession was explained as follows: “Possession” itself as regards the criminal law is described as follows in Stephen’s Digest (9th Edition, page 304): 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 circumstance 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, 19 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal for example have it in his pocket or have it lying in front of him on a table. It must also be shown 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… … 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] [33] From the authorities quoted above, possession can be described as when a person is in a position that he has the power to deal with it as the owner to the exclusion of all others, and when the circumstances are that he may be presumed to intend to do so. [34] The prosecution argued that the accused person had possession of the impugned drugs as the circumstances in this case reveal that the accused person had led the police to the apartment which was rented by the accused person. The said apartment could be opened with the keys that were found on the accused person. The accused person had pressed the pin number 654321* which enabled the door to be opened by the accused person. It was further argued that the accused person had the care and management of the said apartment where the impugned drugs were recovered. The learned Deputy Public Prosecutor submitted that the 20 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal DNA of the accused person on was found on the clothes seized from the apartment A-10-03. For these reasons, the prosecution contended that the accused had possession of the impugned drugs. [35] With regard to the issue of exclusive possession, the evidence before this court is that there were other individuals, Sri Taran and his girlfriend who had access to the apartment where the impugned drugs were found. Both Sri Taran and his girlfriend were not called as witnesses by the prosecution to give evidence in court. Instead, the learned Deputy Public Prosecutor sought to admit Sri Taran’s section 112 statement under the exception of hearsay as provided in Section 32(1)(i) Evidence Act 1950, with the justification that Sri Taran was not able to be found despite efforts being made. [36] For this application to succeed, the condition precedent for an application of section 32 of the Evidence Act 1950 must be satisfied by the Prosecution. Paragraph 32(1)(i) states: “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 circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases: (i) when the statement was made in the course of, or for the purposes of an investigation or inquiry into an offence or by virtue of any written law” 21 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal [37] Under paragraph 32(1)(i) of the Evidence Act 1950, a statement made by a person which cannot be called as a witness is admissible in evidence, provided that: (a) The maker is dead; (b) The maker cannot be found; (c) The maker has become incapable of giving evidence; or (d) The attendance of the maker cannot be procured without an amount of delay or expense which is unreasonable in the circumstances of the case. [38] In PP v Norfaizal bin Mat (No2) [2008] 7 MLJ 792, Low Hop Bing J (as his Lordship then was) rejected the prosecution’s application to admit the section 112 statement by invoking paragraph 32(1)(i) of the Evidence Act 1950 on the basis that the efforts expanded by the prosecution and the police were somewhat lackadaisical and lacklustre. [39] What about the efforts taken by the police in this case? The police advertised in the newspapers once in their efforts to locate the whereabouts of Sri Taran. This court found that the police was given the address of Sri Taran by the National Registration Department (Jabatan Pendaftar Negara) [Exhibit 24], which included his late father’s address at 262, Lorong Teja 2, Taman Keladi 08000 Sungai Petani, Kedah and his other siblings at No, 237, Lorong Teja 2, Taman Keladi 08000 Sungai Petani, Kedah. However, no further effort wastaken by the police to locate Sri Taran at these addresses. 22 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal [40] It is the view of this court that this is a capital offence which warrants a mandatory death sentence upon conviction. This Court is unconvinced that the police has sufficiently carried out their search and that something out of the ordinary course of investigation has been done to obtain the attendance of Sri Taran or his girlfriend. [See: PP v Lee Jun Ho [2009] 3 MLJ 400; [2009] 4 CLJ 90.] [41] For this reason, the court is of the opinion that the section 112 statement given by Sri Taran should not be allowed as evidence in this court. [42] Moreover, counsel for the accused person raised the importance of Sri Taran as a witness in this case and section 114 illustration (g) of the Evidence Act 1950 on the omission to produce Sri Taran. This court is also of the opinion that Sri Taran is indeed a material witness that should be produced in court to unfold the truth of the prosecution case. [43] The failure to locate material witnesses amounts to a misdirection that has occasioned a miscarriage of justice. In Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137 Abdul Hamid Omar LP said: “If some of these claimed witnesses cannot be traced, it was a combination of unhappy circumstances in this case. The accused cannot be penalized for lack of ingenuity in police investigations depriving him of the time-honoured benefit of the doubt.” 23 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal [44] Failure to exclude access of Sri Taran and his girlfriend to the house, in the view of this court, is fatal to the accused person’s charge which requires exclusive possession, control and knowledge for the said drugs. [45] Pertaining to the issue of the contradictory statement, learned counsel for the accused raised the issue on the evidence given by witnesses were contradictory. Specifically, learned counsel referred to the contradiction between SP6 and SP11 where the former witness gave evidence that 654321* as the password while SP11 stated the password as 654321 without *. [46] The question before this court therefore is whether this contradiction is material. I am of the view that this is not a material discrepancy to warrant the evidence to be unreliable. [47] The learned counsel for the accused also raised an issue on the contradictory statement on whether SP6 or ASP Shaari found the bunch of keys confiscated from the accused. Similarly, this court is of the view that both police officers were at the scene during investigation. Therefore, this does not raise an issue in the prosecution’s case. [48] On the issue pertaining to test-fitting of clothes by the accused person, reference was made to section 37B of the Dangerous Drugs Act 1952 which allows statements given by an accused person to be admissible at trial as evidence, with a condition that caution must be administered to him prior to the statement being made. [49] What amounts to a statement was construed in the case of Hendra Kozama v PP [2018] MLJU 11, where the Court of Appeal made reference 24 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal to the High Court case of Pendakwa Raya v Premakumar A/L Balan [2009] MLJU 1198 and held as follows: “[35] On the issue of test-fitting of clothes, it was not disputed that SP9 did not administer the requisite caution under the then section 37A of the Act. We agreed with the learned counsel’s submission that the evidence of test- fitting is inadmissible. We see no reason to depart from the decision of Zamani A Rahim JC (as he then was) in PP v. Premakumar Balan & Anor [2010] 3 CLJ 736 following Jeffery Tan J (as he then was) in PP v. Cheah Ooi Por & Anor [1995] 1 LNS 180, where it was stated: “[21] In the course of investigations, both the accused were subjected to a test fitting of the clothes found in the respective travelling bags. Interestingly enough, the investigating officer candidly admitted that no caution was administered before the test fitting was carried out. [22] The act of this demonstration can be equated with a statement, and therefore the safeguards of a statutory caution would apply to cover any admissions or confessions, including actions of the accused tantamount to statement. [23] In the Court of Appeal case of Y. Jeyamuraly Yesiah v. PP [2007] 5 CLJ 605, a majority decision held that the conduct of the appellant, namely, in picking up a biscuit tin and handing it to SP4 in response of her request to hand over any prohibited item in his custody or under his control amounts to a statement which fall within the contemplation of s. 37A of the Act. The majority decision are of the view that the word “statement” 25 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal appearing in s. 37A of the Act must be construed as including actions. [24] The majority decision held at p. 632 as follows: Thus, we hold that actions such as pointing or nodding or handing over physically an item in response to a question or request are statements within the contemplation of s. 37A of the Act or is tantamount to information received from a person accused of any offence in the custody of a police under s. 27(1) of the Evidence Act 1950 depending upon the circumstances of the case. [25] Similarly, in the Penang High Court Criminal Trial No: 45-12-95 PP v. Cheah Ooi Por & Anor (unreported). His Lordship Jeffery Tan J (as he then was) at p. 14 of the judgment, in upholding the objection of the defence had this to say: Defence counsel, however lodged a strong objection to the admission of the evidence - that OKT1 was requested by the investigation officer to try on P160, the pair of trousers with the pagers hanging in the middle hall, and it fitted OKT1 - which the prosecution intimated it was proceeding to adduce. It was not in dispute the statutory caution under s. 37A(1)(b) was not read to the accused, but the prosecution however contended that the intended evidence was not a statement within the meaning of s. 37(1) of the Act, and therefore admissible despite the absence of a caution. However, spoken words by an accused is not the only form of statement envisaged in s. 37A requiring a caution to be read to an accused after his arrest before it can be admitted. In PP v. Siew Sung [1965] 1 LNS 140, Ong Hock Thye Ag, CJ (as he then was) held as inadmissible, having regard to s. 113 of the CPC (which is in pari materia 26 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal with proviso (b) to s. 37A(1)), evidence that 2 days after the raid the accused came to the police station and opened a pin table. In Lim Kah Wan v. PP [1985] 2 CLJ 473; ; [1985] CLJ (Rep) 530, Edgar Joseph Jr J (as he then was) held the nodding of the accused’s head as part of the accused’s verbal statement that led to the discovery of a fact, and hence admissible under s. 27(1) of the Evidence Act (see also Lee Lian & Ors v. PP [1956] 1 LNS 54 where Thompson J (as he then was) held that “statement must be construed as including actions such as pointing out a person. In the instant case, while the testing on of P160 was not a verbal statement from the accused, yet the message from the act was equally audible, and was a statement envisaged by s. 37A(1) and inadmissible without a prior caution. The prosecution’s application to adduce that evidence was accordingly rejected. [26] Applying the above principle to the facts in this case, I hold that the test-fitting of the clothes by both accused are action or conduct amounting to statement envisaged in s. 37A(1) and as no prior caution was administered, the conduct of test- Page 7 of 15 Hendra Kozama v Public Prosecutor .... fitting were inadmissible.”. [Emphasis added] [50] Based on the case mentioned above, the word statement was construed to incorporate spoken words and even actions. The act of demonstration by the accused through test fitting clothes as instructed by the investigating police and opening doors is therefore equivalent to a 27 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal statement. Hence, for that evidence of the test-fitting to be admitted, caution must be administered. [51] In this case, there was no record to show that caution was administered to the accused person before the change of clothes and prior to the opening of doors. Hence, applying section 37B of the Dangerous Drugs Act 1952 this act of the accused person, in the view of this court, is not and cannot be admitted as evidence. [52] Learned counsel for the accused person raised the issue relating to the omission of the prosecution to call the nurse who took the blood specimen of the accused person for DNA comparation. This omission was submitted to amount to a break in the chain of evidence. [53] However, this court agrees with the learned Deputy Public Prosecutor by referring to the case of Gunalan Ramachandran v PP [2004] 4 MLJ 489; [2004] 4 CLJ 551 where the Court of Appeal stated: “[41] First, by way of a general observation, I am of the view that, in a drug trafficking case what is important is that it must be proved that it is the substance that was recovered that was sent to the chemist for analysis and it is that same substance that is found to be heroin or cannabis etc and it is in respect of that substance that an accused is charged with trafficking. So, the chain of evidence is more important for the period from the time of recovery until the completion of the analysis by the chemist. Even then it does not necessarily mean that if the exhibit is passed from one person to another, every one of them must be called to give evidence of the handing over from one person to another and if there is a break, even for one 28 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal day, the case falls. There should be no confusion between what has to be proved and the method of proving it. What has to be proved is that it is the substance that was recovered that was analysed by the chemist and found to be heroin, cannabis etc, and it is for the trafficking of that same substance that the accused is charged with. [42] The proof of the chain of evidence is only a method of proving that fact. The fact that there is 'a gap', does not necessarily mean that that fact is not proved. It depends on the facts and circumstances of each case. There may be a gap in the chain of evidence. But, if for example, during that 'gap' the exhibits are sealed, numbered with identification numbers, there is no evidence of tempering, there is nothing that would give rise to a doubt that that exhibit is the exhibit that was recovered in that case and that was analysed by the chemist, the fact that there is a gap, in the circumstances of the case, may not give rise to any doubt of that fact.” [54] In PP v Tukiman bin Demin [2008] 8 CLJ 856, Justice Mohd Zawawi Salleh (now FCJ) held: “21.4. The drugs were not found on the accused but in the room to which several person have equal access. The presence of SP7, SP10 and Samiun bin Mohd Dah and other bachelors (‘budak-budak bujang’) in the house, raise some doubts as to whether it could be said affirmatively that the drugs were in the possession of the accused or either one of them or all of them are in joint possession of the said drugs. Where possession is not clear, as in the present case, when the offending drugs may be attributed to more than one individual, possession requires some nexus, link, or 29 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal other connection between the accused and the offending drugs. In this case, there is no evidence of additional incriminating circumstances implicating the accused such as finger prints, incriminating statements, efforts to avoid arrest or the offending drugs were concealed in any portion of the room. The bare-bones of the prosecution case is the contraband was found in the accused’s room. Under the circumstances, the prosecution’s case is barren of establishing linking or demonstrating a nexus between the accused and the offending drugs.” [Emphasis added] [55] In this instant case as discussed above, it is the view of this court that the prosecution had failed to exclude others from the apartment where the impugned drugs were recovered. Sri Taran and his girlfriend were not called as prosecution witnesses and could not be located by the police. Efforts to locate Sri Taran, in the view of this court, was wanting. [56] Founded on the analysis of the evidence before this court, this court opines that the prosecution had failed to prove that the accused person had possession of the impugned drugs. [57] For the above stated reasons, this court therefore finds that the prosecution has failed to fulfil the second ingredient of this offence. [58] In relation to the third charge against the accused person under section 6 of the Dangerous Drugs Act 1952, this court finds that the prosecution had failed to prove a prima facie case against the accused person. 30 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal (iii) the accused was trafficking in the said drugs [59] For the third ingredient, the prosecution relied on presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952. [60] As this court has found that the prosecution has failed to prove the accused person had possession of the impugned drugs, it follows therefore that the presumption of trafficking pursuant to section 37 (da) of the Dangerous Drugs Act 1952 does not arise. DECISION [61] In the upshot, upon a maximum evaluation of the evidence and for the reasons expressed above, I am satisfied and I find that the prosecution has failed to prove prima facie that the accused had possession over the impugned drugs in respect of all the three charges. [62] In accordance with section 180(2) of the Criminal Procedure Code, I acquit and discharge the accused without calling upon him to make his defence. Dated: 31 March 2022 (SHAHNAZ BINTI SULAIMAN) Judicial Commissioner High Court of Malaya, Johor Bahru 31 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel :- For the Prosecution: Puan Nor Azizah binti Muhammad Timbalan Pendakwa Raya Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato’ Jaafar Muhammad Kota Iskandar, Iskandar Puteri Johor. For the Accused: Encik Nor Shahid bin Abd Malik Nor Shahid Abd Malik & Associates No. 33-02, Jalan Adda 3/1, Taman Adda Heights 81100 Johor Bahru Johor. 32 MTJB JA-45A-6-02/2019 & S/NJA-45A-24-04/2019 tbB2hCXKREaQDCFSKr4txg **Note : Serial number will be used to verify the originality of this document via eFILING portal