Chan Kah Kin (No KP: 850407-01-5337)

DALAM MAHKAMAH RAYUAN MALAYSIA, PUTRAJAYA [BIDANG KUASA RAYUAN] RAYUAN JENAYAH NO: R-05(M)-47-02/2020 & R-05(M)-63-02/2020 ANTARA CHAN KAH KIN (NO KP: 850407-01-5337) ... PERAYU DAN PENDAKWA RAYA ... RESPONDEN (Dalam Perkara Mahkamah Tinggi Malaya di Kangar Dalam Negeri Perlis Perbicaraan Jenayah No. RA-45A-03-12/2017 Pendakwa Raya Lawan Chan Kah Kin) KORUM ABDUL KARIM BIN ABDUL JALIL, HMR VAZEER ALAM BIN MYDIN MEERA, HMR ABU BAKAR BIN JAIS, HMR JUDGMENT OF THE COURT Introduction [1] The appellant drove a car from Thailand into Malaysia on 19.2.2017 via the Padang Besar border crossing in Perlis. At the ICQS Complex Padang Besar the appellant was detained and taken with the car to IPD Padang Besar, where an inspection of the car was carried out 1 by a police team. The police found 19,293.6 grams of Methamphetamine behind the dashboard of the car. Consequently, the appellant was charged for an offence of trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act (“Act”), and convicted by the High Court. He was sentenced to mandatory death by hanging pursuant to section 39B(2) of the Act. [2] The appellant being dissatisfied with the High Court’s judgment appealed against conviction and sentence. He filed two Notices of Appeal, one through his solicitors, which was registered as Rayuan Jenayah No: R-05(M)-47-02/2020, and the other through the Pusat Koreksional Perlis, Jabatan Penjara Malaysia, which was registered as Rayuan Jenayah No: R-05(M)-63-02/2020. The appeals are in effect the same. [3] We heard and dismissed the appeal for the following reasons. The Charge [4] The charge against the appellant read: “Bahawa kamu pada 19 Februari 2017, jam lebih kurang 5.05 petang di perkarangan IPD Padang Besar, Padang Besar, Perlis, di dalam daerah Padang Besar, di dalam Negeri Perlis, telah didapati mengedar dadah berbahaya iaitu jumlah berat 19,293.6 gram dadah jenis Methamphetamine dan dengan itu kamu telah melakukan kesalahan dibawah seksyen 39B(1)(a) Akta Dadah 2 Berbahaya 1952 yang boleh dihukum dibawah seksyen 39B(2) Akta yang sama. Background facts [5] On 19.2.2017, ASP Soh Thong Keng (SP2) from the Pasukan Tindakan Khas, Jabatan Siasatan Jenayah Narkotik, Bukit Aman, Kuala Lumpur, acting on information received led a police team to the ICQS Complex at Padang Besar, Perlis. The police team waited in ambush at the ICQS Complex Padang Besar. At about 4.48pm SP2 stopped a Nissan Grand Livina car bearing registration number CCX 5686 (“the car”) being driven by the appellant from Thailand into Malaysia through the ICQS Padang Besar. The appellant was arrested and the car detained. As the IQCS Complex was not conducive for the police to conduct a search of the car, the appellant was handcuffed and placed in the back seat of the car and driven by the police to the compound of the IPD Padang Besar, Perlis. [6] The car was then thoroughly examined by means of x-ray scanning and physical search. After about two hours of intensive search, the police found 26 plastic packages hidden in the dashboard of the car containing substance suspected to be dangerous drugs. SP2 lodged two police reports as regards the arrest of the appellant and the seizure of the case exhibits. 3 [7] A Search List was done by SP2, and the appellant together with the seized items were handed over to the Investigation Officer ASP Poobalan (SP5). SP5’s investigation revealed that the car was registered in the name of one Lai Ngow Chin, who was deceased at the time of the commission of the offence. [8] The 26 plastic packages and their contents were sent for chemical analysis at the Jabatan Kimia Malaysia, where the chemist En Khairuzzaman bin Mustafa (SP3) analysed and found the contents of the 26 plastic packages to be Methamphetamine weighing 19,293.6 grams. Methamphetamine is a dangerous drug listed in the First Schedule to the Act. [9] The accused was accordingly charged for an offence under section 39B(1)(a) of the Act. [10] At the close of the prosecution case, the learned trial judge found that the prosecution had proved a prima facie case, and called upon the appellant to enter his defence. The appellant gave sworn testimony. At the end of the defence case, the learned trial judge found that the prosecution had successfully discharged its burden to prove the case beyond reasonable doubt, and thus convicted the appellant as charged and sentenced him to mandatory death by hanging. 4 The appeal [11] The appellant raised several grounds in the Petition of Appeal. However, during the appeal proper, learned counsel for the appellant confined the grounds of appeal to only two main issues, namely the first and fifth grounds of appeal stated in the Petition, which are: (a) that the learned trial judge had misdirected himself in ruling that the prosecution had established a prima facie case at the close of the prosecution case; and (b) the learned trial judge had misdirected himself in law by placing a heavier burden on the appellant to adduce sufficient evidence to rebut the presumption of possession under section 37(d) of the Act, as stated in the Grounds of Judgment: “Perayu perlu mengemukakan keterangan diatas beban kebarangkalian untuk mematahkan anggapan pemilikan dibawah s.37(d) Akta Dadah Berbahaya.” 1st Issue – Prima facie case [12] The appellant contends that the prosecution had failed to prove a prima facie case at the close of the prosecution, and that the learned trial judge was wrong in calling for him to enter defence. Learned counsel for the appellant submits that the prosecution had failed to prove 5 ownership of the car, and with that learned counsel argues that the element of possession and knowledge of the drugs by the appellant had not been established. [13] Now, in order to establish a prima facie case for a charge under section 39B(1)(a) of the Act, the prosecution has to establish the following elements of the offence of trafficking in drugs, namely that: (i) the drugs are dangerous drugs within the meaning and definition ascribed in the Act; (ii) the accused was in possession and had knowledge of those drugs; and (iii) the accused was trafficking in the drugs. [14] The trial court is required in law to decide at the end of the prosecution case whether the prosecution has made out a prima facie case against the accused. This is provided in section 180(1) of the Criminal procedure Code. In this regard, the law requires the trial judge to conduct a maximum evaluation of the evidence before the court. This requires a positive evaluation of the credibility and reliability of all evidence adduced in order to establish if all the ingredients of the offence have been established. See: Looi Kow Chai & Anor v. PP [2003] 6 1 CLJ 734; [2003] 2 AMR 89, Balachandran v. PP [2005] 1 CLJ 85, and PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457; [2005] 6 AMR 203. [15] The learned High Court Judge had correctly stated his duty and function at the close of the prosecution to make a finding whether the prosecution had established a prima facie case. This is found at paragraphs 11 to 13 of the Grounds of Judgment. The learned trial judge had particularly referred to the Federal Court’s pronouncement in Balachandran v PP [2005] 1 CLJ 85, where the Court held: "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 result is that the 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 had if a 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." [16] The learned trial judge considered one by one the elements of the offence and made positive findings in favour of the prosecution in respect of each one of them. 7 [17] Now, in respect of the first ingredient that the seized drugs are dangerous drugs within the Act, SP3 the chemist had confirmed that from his analysis he found the substance in the 26 plastic packages to be Methamphetamine weighing a total of 19,293.6 grams. SP3 further confirmed that Methamphetamine is a dangerous drug as defined in the First Schedule to the Dangerous Drugs Act. This is also contained in his Laporan Kimia (P14). [18] The learned judge further considered the chain of evidence as regards the custody and movement of the drugs from the time of seizure to the time of their production in court, and found that there was no break in the chain of evidence. As such the learned judge was satisfied that the drugs produced in court were the drugs seized by the police. Thus, we find that the learned trial judge had quite correctly found that the first element of the offence had been proved by the prosecution. In fact, there wasn’t any serious challenge by the defence as regards the prosecution’s fulfillment of this first element. [19] As for the second element, the learned trial judge had done a maximum evaluation of the prosecution evidence as regards the issue of possession and knowledge of the drugs by the appellant. As for possession the learned trial judge explained the concept of possession in law in his Grounds of Judgment, where he states as follows: 8 32. Berpandukan kes Chan Peon Leon (supra) menjadi prinsip mantap untuk membuktikan seseorang itu mempunyai “milikan” perlu ditunjukkan orang itu mempunyai kawalan dan jagaan, serta pengetahuan ke atas sesuatu benda dan bebas untuk menguruskan/mengendalikan benda berkenaan dengan mengecualikan orang lain (power of disposal of to the exclusion of others). Dengan lengkapnya seseorang itu dikatakan mempunyai “exclusive possession” ke atas sesuatu benda. Makna “exclusive possession” telah dihuraikan di dalam kes PP v Denish Madhavan [2009] 2 CLJ 209; [2009] 2 MLJ 194 di mana antara lain, Mahkamah Persekutuan di muka surat 217-218 memutuskan: [16] Before proceeding to consider the reasons for the Court of Appeal's decision, we will say a few words about "exclusive" possession. It is inappropriate to speak of possession of an article in criminal law as exclusive possession. One is either in possession or not in possession, although one could be in possession jointly with another or others. To say that the prosecution of a drug case fails because there has been no proof of exclusive possession is apt to convey the wrong impression that it is only in cases where possession is entirely with one person, - that is, "exclusive" - that a conviction is possible. When the learned trial judge said "The accused sought to negative the proof of exclusive possession...", we take it that he meant no more than that the respondent sought to show that he was not in possession of the drugs because he had no knowledge of their existence and that the drugs could have been placed in his bags by some other person or persons. [17] The idea of exclusivity features in the meaning of "possession" in criminal law as one of the elements 9 necessary to constitute possession. As Taylor J said in Leow Nghee Lim v. Reg. [1955] 1 LNS 53: ... It is often said that 'possession must be exclusive'. This is ambiguous. Possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. Custody likewise may be sole or joint and it has the same element of excluding others. The main distinction between custody and possession is that a custodian has not the power of disposal. The statement that 'possession must be exclusive' is often due to confusion of the fact to be proved with the evidence by which it is to be proved. It is essential to keep this distinction clearly in mind, especially when applying presumptions. [18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17, said that "possession" for the purposes of criminal law involves possession itself - which some authorities term "custody" or "control" - and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th edn, p. 304), in which the exclusive element mentioned by Taylor J appears: A moveable thing is said to be in the possession of a person when he is so 10 situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. [19] Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession. [20] The learned trial judge then went on to apply the law to the facts, and that is found in paragraphs 33 onwards of the Grounds of Judgment: 33. Berdasarkan nas-nas yang dirujuk sebelum ini, saya berpendapat Tertuduh mempunyai jagaan dan kawalan ke atas 26 bungkusan plastik yang mengandungi dadah Methamphetamine yang dijumpai tersorok di bahagian bawah dashboard. Saya menimbangkan keterangan-keterangan berikut bagi membuktikan jagaan dan kawalan atas dadah berbahaya: (i) SP2 telah menemui dadah berbahaya yang terlibat dibahagian bawah dashboard kenderaan tersebut; (ii) semasa kenderaan tersebut ditahan, hanya Tertuduh seorang yang memandu kenderaan jenis Grand Livina. Fakta ini disahkan oleh SP2 dan SP4. ... ... 35. Saya memutuskan pendakwaan berjaya membuktikan jagaan dan kawalan ke atas dadah-dadah yang dijumpai dibahagian bawah dashboard kenderaan tersebut dan Tertuduh 11 dianggap mempunyai pemilikan dibawah s.37(d) Akta itu dan selanjutnya dianggap mengetahui dadah-dadah yang tersembunyi. 36. Saya juga berpendapat bukan keperluan undang-undang bagi pendakwaan untuk membuktikan pemilikan eksklusif atas kenderaan tersebut (sila rujuk kes Denish Madhavan [supra] mengenai prinsip undang-undang ini). 37. Peguam Tertuduh yang terpelajar ada membangkitkan isu kegagalan pihak pendakwaan mengemukakan sijil kematian pemilik berdaftar kenderaan tersebut iaitu Lai Ngow Chin, kegagalan mengemukakan kad pendaftar kenderaan tersebut dan kegagalan memanggil Pegawai JPJ dan menggesa saya mengambil inferen bertentangan dibawah s.114(g) Akta Keterangan 1950. Saya berpendapat tanpa sijil kematian dan kad pendaftaran kenderaan tersebut tidak mencacatkan kes pendakwaan. Pembelaan tidak mempertikaikan semasa SP2 menahan Tertuduh di Kompleks ICQS Padang Besar, Tertuduh yang memandu kenderaan tersebut dan membawa dadah-dadah yang tersembunyi di bahagian bawah dashboard kenderaan tersebut. Saya berpendapat walaupun Pegawai JPJ tidak dipanggil ia tidak menjejaskan kes pendakwaan. Saya berpendapat bagi kesalahan pengedaran dadah, bukan keperluan undang-undang untuk membuktikan siapakah pemilik berdaftar kenderaan tersebut. Saya merujuk kes PP v Letchumanan Suppiah [2006] 1 CLJ 557 ada merungkai isu ini seperti berikut: [2] With due respect to the learned judge, the issue of ownership of the motorcycle was an irrelevant one. The issue was one of custody or control of the orange plastic packet in the carrier basket of the motorcycle, which in the circumstances of this case, would not involve the ownership of the motorcycle on which the accused was riding wherein in the carrier basket, within sight of the accused and the police party, was 12 found "anything whatsoever containing any dangerous drugs". Without calling the accused's brother as a witness, the prosecution was able to discharge the burden of establishing possession with knowledge of the drugs by the accused with the aid of the presumption under s. 37(d) of the Act. (paras 15) 38. Saya berpendapat anggapan s.114(g) Akta 1950 tidak terpakai terhadap pendakwaan sebagaimana yang cuba dihujahkan oleh pembelaan. Saya juga berpendapat walaupun SP5 (Pegawai Penyiasat) tidak melakukan siasatan bagi mendapatkan dokumen yang disarankan oleh pembelaan iaitu D44A-C dan D45, saya memutuskan ia tidak menjejaskan kes pendakwaan. 39. Saya turut menimbangkan hujahan peguam Tertuduh yang terpelajar berkaitan kelakuan Tertuduh semasa berada di Lorong Bas ketika ditahan pada awalnya dan di IPD Padang Besar sebaik ditemui dadah yang tersembunyi di bahagian bawah dashboard kenderaan itu, saya berpendapat tindakan atau reaksi orang yang biasa. Saya merujuk kes Savarimuthu Thevarajah v PP [2019] 1 LNS 987 dimana YA Stephen Chung Hian Guan HMR ada merungkai isu yang sama seperti berikut: Several inferences could be made from the facts, one of which was that he looked shocked and in trying to run away reflected a guilty mind. It could also be inferred that he was trying to flee from a group of strangers who approached him. We were of the view that the appellant looked shocked and tried to flee did not necessarily lead to the irresistible inference that he had knowledge of the drugs. We find support in our finding from the observation of the Federal Court in PP v. Tan Tatt Eek [2005] 4 CLJ 460; [2005] 2 MLJ 685 as follows: 13 To my mind the reaction of shock and the dropping of the bag exhibited by a person caught by surprise does not unequivocally show guilt. It could easily be the reaction of an innocent but surprised person. No firm inference can be drawn on the basis of such insufficient evident. Saya memutuskan tidak menjadi reaksi Tertuduh untuk infer pengetahuan tentang dadah berbahaya yang menjadi teras pertuduhan. [21] So it is clear that based on the evidence adduced by the prosecution, the learned trial judge had relied on the statutory presumption in s.37(d) of the Act to find that the appellant was in possession of the drugs by virtue of the appellant’s control and custody of the 26 plastic packages containing the drugs that were found hidden behind the bottom of the dashboard of the car. [22] As for the third and final element of the offence, i.e. that the appellant was trafficking in the drugs, the learned High Court Judge found that based on the definition of trafficking in s.2 of the Act, the act of the appellant in driving the vehicle with the drugs hidden in the dashboard of the car from Thailand into Malaysia via the ICQS Complex in Padang Besar would constitute direct evidence of trafficking, as this would amount to transporting or carrying the drugs. 14 Appellant’s submission [23] The appellant through his counsel submits that the learned judge misdirected himself when he did not give his reasons as to why the appellant was found to have control and custody of the drugs in the 26 plastic packages. Now, contrary to that assertion, we find that the learned trial judge did give his reasons as to why he was of the opinion that the appellant had control and custody of the 26 plastic packages. The learned judge said that the 26 plastic packages were found hidden behind the bottom of the car’s dashboard, and the appellant who had driven the car from Thailand into Malaysia across the border checkpoint was the only one in the car at that time. When the car was stopped by the police, apart from the appellant, there was no one else in the car. The appellant was in custody of the car and had custody of the 26 plastic packages found in the car. [24] The learned trial judge had also considered the argument of learned counsel for the appellant that the car was registered in someone else’s name and not the appellant. The learned judge had discounted the fact of ownership of the car, and held that the relevant evidence would be the fact of the appellant solely driving the car laden with the drugs in the 26 plastic packets, and not ownership of the car. The Investigation Officer (SP5) had informed the court that his investigations 15 show that the registered owner had died. In the circumstances of the fact of the case, we agree with the learned trial judge that the fact of the ownership of the car or the car owner’s death are not relevant facts to be established by the prosecution to prove the charge against the appellant. Hence, we agree with the learned trial judge that in the circumstances of the facts of the case, there is no necessity to prove the registered owner’s death by production of his death certificate, or to prove actual ownership of the car by production of the JPJ records. [25] In PP v Abdul Rahman Akiff [2007] 4 CLJ 337, Arifin Zakaria FCJ (as he then was) held: [24] Applying the observations set out in the authorities cited above to the facts in the present case, the irresistible inference that may be drawn in the circumstances is that the respondent all along knew about the drug found in the car. The fact that they were found hidden under the seats of the car and wrapped in Chinese newspaper would not assist him to negate such an inference. From the evidence of PW5 it is clear that little effort was required to uncover what was contained in the 3 packages. Therefore, we are of the view that on the facts and in the circumstances of this case the learned trial judge, properly directed on the law, would have come to the finding that prima facie the respondent had possession of the drug independent of the statutory presumption under s. 37(d) of the Act. Similarly, in the present appeal, the drugs were in the 26 plastic packages, which were hidden behind the dashboard of the car. When 16 discovered, little effort was needed to uncover what was contained in the 26 plastic packages. [26] Further, in PP v Abdul Rahman Akiff [supra] the Federal Court had referred to the judgment of the Singapore Court of Appeal in Zulfikar bin Mustaffah v. PP [2001] 1 SLR 633, at p. 639, where in respect of the element of possession it was held: 21. For the element of 'possession' (within the meaning of s. 17 of the Misuse of Drugs Act) to be established, it must not only be shown that the accused had physical control of the drugs at the relevant time; the prosecution must also prove that the accused possessed the requisite knowledge as to the contents of what he was carrying: see Warner v. Metropolitan Police Commissioner [1969] 2 AC 256; Tan Ah Tee & Anor v. PP [1978] 1 LNS 193; [1978-1979] SLR 211; [1980] 1 MLJ 49. In the course of the appeal before us, counsel for the appellant relied heavily on the fact that the contents of the bundles were securely wrapped in newspapers and could not be identified. We were accordingly invited to draw the inference that the appellant had no knowledge of the contents of the bundles. 22. We were unable to accede to this request. While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlers could escape liability simply by ensuring that any drugs coming into their possession are first securely sealed in opaque wrappings. Rather, the court must appraise the entire facts of the case to see if the accused's claim to ignorance is credible. As 17 Yong Pung How CJ remarked in PP v. Hla Win [1995] 2 SLR 424 (at p. 438): In the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses. [27] Applying these case authorities to the facts of the present case, we agree with the learned trial judge’s finding that the appellant had custody and control of the 26 plastic packages containing the drugs that were found inside the car driven by the appellant. The learned trial judge had scrutinized the entire evidence to ascertain whether an inference can be drawn that the appellant had control and custody of the 26 plastic packages found in the car. It is not in dispute that the 26 plastic packages were found hidden behind the dashboard of the car. The appellant was alone in the car at the material time. One other important and relevant factor is that the car was driven by the appellant from Thailand into Malaysia when he was arrested at the border crossing in Padang Besar. [28] In the circumstance, we find that the learned trial judge had correctly invoked the statutory presumption in s.37(d) of the Act, which reads: 18 In all proceedings under this Act or any regulation made thereunder- (d) any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug; The presumption is invoked once the accused is shown to have control or custody of “anything whatsoever containing any dangerous drug”. The “anything whatsoever containing the dangerous drugs” here would be the 26 plastic packages hidden in the car’s dashboard. Once that is proved then the presumption that the accused was in possession of such dangerous drugs would arise, until the contrary is proved by the accused. We find, for reasons discussed earlier, that there is sufficient evidence to find the appellant to be custody and control of the 26 plastic packages found in the car. [29] Now, as for knowledge, direct evidence of knowledge is a rarity. Knowledge must necessarily be inferred from the surrounding facts and circumstances. This was reiterated by this Court in Simon Savarimuthu Thevarajah v. PP [supra] in the following terms: On the facts before us, we were in as good a position as the trial judge to draw the inference whether the appellant had knowledge of the drugs. It is trite that proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can 19 be drawn varies from case to case. It is sufficient for the prosecution to prove facts from which it can be properly inferred that an accused person had the necessary knowledge. The court is not concerned with the knowledge of a reasonable man but is concerned with reasonable inferences to be drawn from a concrete situation as disclosed in the evidence as it affects a particular person whose knowledge is in issue (see PP v. Chia Leong Foo [2000] 4 CLJ 649; [2000] 6 MLJ 705; Parlan Dadeh v. PP (supra )). When these principles are applied to the facts, we find that there is ample evidence to infer that the appellant had knowledge of the drugs in the 26 plastic packages hidden in the car. [30] Learned counsel for the appellant submits that the learned trial judge failed to give his reasons for finding that the appellant had knowledge of the drugs found in the 26 plastic packages. Whilst we agree that the learned trial judge did not give his specific reasons for that finding, we find that based on the authorities cited above, and the objectively proven facts, we are in a position to draw that inference. The irresistible inference that can be drawn in the circumstances of the proven facts in this case is that the appellant knew all along about the drugs found in the car. The fact that they were hidden behind the dashboard of the car with some effort, the discovery of which took the police some time, and that too with the use of x-ray machine, would not assist the appellant to negate such an inference. Obviously, the intent in taking this much effort to hide the packages containing the drugs behind 20 the dashboard of the car would be to escape detection by the authorities when the car is driven across the border checkpoint at the ICQS Complex in Padang Besar. This is clear evidence of premeditation, and when the only person in the car at the material time is the appellant, then the irresistible inference is that the appellant had knowledge of the drugs in the packages hidden in the dashboard, that was being transported from Thailand into Malaysia. [31] Learned counsel for the appellant also takes issue with the learned trial judge’s comment that, based on the Federal Court’s pronouncement in Dinesh Madhavan v PP [supra], there need not be exclusive possession of the car by the appellant. The comment by the learned trial must be taken in context, where in discussing the issue of possession of the drugs, the learned judge was stating the law as clarified by Augustine Paul FCJ in Dinesh Madhavan v PP [supra] to the effect that: Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession. The learned trial judge was merely stating that possession in law need not be exclusive possession, which is often confused with the element of exclusive power to deal with the object in question which is a constituent 21 element of possession. Thus, we do not find that anything of substance turns on that comment by the learned trial judge. [32] Learned counsel for the appellant further contends that what the prosecution has shown is that the appellant was only “momentarily in control of the car” and as such the appellant cannot be said to be in possession of the car. Learned counsel relied on the High Court case of PP v Chow Kam Meng [2001] 7 CLJ 387 where the Court held that there is no presumption of custody from the mere fact of driving the car where the drugs were found. Now, the facts of that case are very much different from the present case. In any event, the prosecution is not arguing possession by virtue of the appellant’s control and custody of the car, but rather by virtue of the appellant’s control and custody of the 26 plastic packages found hidden in the dashboard of the car. Therein lies the difference. When the prosecution presents its case in that manner, then if the basic facts of control and custody of the 26 packages containing the drugs are proved, then the presumption under section 37(d) of the Act would arise. Hence, we do not find any merit in the fleeting control of the car argument advanced by learned counsel. The appellant cannot be said to be a transient occupant of the car. He was in the driver’s seat having command and control of the car, and drove it across the border into Malaysia. The act of the appellant in driving the 22 car from a neighbouring country into Malaysia across border checkpoints cannot be equated to the appellant being “momentarily in control of the car”. The appellant had full control of the car at all material times. 2nd Issue – The requirement for the appellant to rebut the s.37(d) presumption on a balance of probabilities. [33] Learned counsel for the appellant further submits that the learned trial judge had misdirected himself in law when stating that the appellant needs to rebut the presumption under s.37(d) of the Act on a balance of probabilities. Learned counsel further submits that the statutory presumption in s.37(d) of the Act is not applicable in this case and that the appellant ought to have been acquitted and discharged without defence being called. [34] We do not find any merit in this argument. It is well established that when any statutory presumption is invoked against an accused, then it is incumbent upon the accused to rebut that presumption on a balance of probabilities. See: PP v Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89. The fact that the court had invoked the statutory presumption, which then imposes a burden to rebut the presumption on a balance of probabilities does not mean that the learned trial judge had imposed a higher burden. The obligation to rebut on a balance of probabilities is a 23 requirement of the law, and not of the judge personally. Hence, we find no misdirection by the learned trial judge, as alleged. [35] There is also another issue raised by the learned counsel for the appellant. Counsel asserts that at the end of the defence case there was no finding by the learned trial judge that the prosecution had proved its case beyond reasonable doubt. This, according to learned counsel is a misdirection in law that prejudices the appellant. [36] We note from the Grounds of Judgment that the learned trial judge had considered at length the appellant’s evidence adduced during the defence case. In paragraph 55 of the Grounds of Judgment, the learned trial judge summarises the appellant’s contention, and from paragraphs 56 to 72 there is in depth consideration and analysis of the defence raised by the appellant. Having done that, the learned trial judge concludes in paragraph 73: 73. Saya telah menimbangkan pembelaan Tertuduh dan berpendapat atas imbangan kebarangkalian, Tertuduh gagal mematahkan anggapan pengetahuan dibawah s.37(d) dan gagal menimbulkan sebarang keraguan yang munasabah atas kes pendakwaan iaitu pengedaran dadah berbahaya iaitu Methamphetamine seberat 19,293.6 gram secara terus bergantung kepada peruntukan s.2 Akta itu. Saya berpendapat Tertuduh bersalah dan disabitkan atas pertuduhan [P1]. 24 Hence, we find that there is proper appraisal of the defence case by the learned judge and the complaint by the learned counsel for the appellant that there is no finding of the prosecution having proved its case beyond reasonable is wholly unfounded. [37] Section 182A CPC sets out the duty of the trial court at the end of the defence case. The court must consider all the evidence adduced before the court to decide whether the prosecution has proved its case beyond reasonable doubt. In this regard, in Prasit Punyang v. PP [2014] 7 CLJ 392, Azahar Mohamed JCA (now Chief Judge of Malaya) held that: 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 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. We find that the learned trial judge had considered all the evidence adduced before him in coming to the conclusion that the prosecution had proved its case beyond reasonable doubt, and convicting the appellant. All aspects of the appellant’s defence was considered by the learned trial judge. 25 [38] In the final analysis, we are satisfied that the appellant had custody and control of the 26 plastic packages and that he knew that they contained drugs, the possession of which is prohibited under the Act. Thus, the presumption under section 37(d) was correctly invoked. In the premise, the next issue is whether the defence had, on the balance of probabilities, successfully rebutted the statutory presumption of possession under s. 37(d) of the Act. (See PP v. Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89 as applied in Ng Chai Kem v. PP [1994] 2 CLJ 593). We find that the appellant did not offer any credible evidence whatsoever which goes towards rebutting that presumption. Therefore, the presumption under s. 37(d) of the Act stands unrebutted. There is evidence of trafficking in the said drugs, by way of transporting and carrying it across the border by the car, which constitutes an act of trafficking as defined in s.2 of the Act. Having considered the evidence of the defence and construing it in totality with the evidence of the prosecution, we find that the appellant has failed to raise any reasonable doubt. Thus, we are satisfied that the prosecution has established its case beyond reasonable doubt. Wherefore, we find that the decision of the learned trial judge in convicting the appellant on the charge and sentencing him to mandatory death as prescribed under the Act is correct and safe. 26 [39] Thus, we dismissed the appeal and affirmed the conviction and sentence of the High Court. Dated this 20th day of November 2021. -sgd- Vazeer Alam Mydin Meera Judge Court of Appeal Putrajaya Peguamcara bagi pihak Perayu: Dato’ Naran Singh (bersama Amrick Singh Sandu) Tetuan Naran Singh & Co. Peguambela dan Peguamcara No. 39, First Floor, Market Street 30000 Ipoh Perak Peguamcara bagi pihak Responden: Dhia Izyan binti Mohd Akhir Timbalan Pendakwa Raya (TPR) Jabatan Peguam Negara Bahagian Perbicaraan dan Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 Putrajaya 27