LEE WAI PING (NO. K/P: 901023-08-5261)

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO: J-05(M)-172-06/2020 ANTARA LEE WAI PING (NO. K/P: 901023-08-5261) … PERAYU DAN PENDAKWA RAYA … RESPONDEN (DALAM PERKARA MENGENAI MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU KES JENAYAH NO. JA-45A-54-12/2017 Antara PENDAKWA RAYA Dan LEE WAI PING (NO. K/P: 901023-08-5261) 1 CORAM: KAMALUDIN BIN MD. SAID, JCA GUNALAN A/L MUNIANDY, JCA HASHIM BIN HAMZAH, JCA JUDGMENT INTRODUCTION [1] This is an appeal that arises from a decision of the Johor Bahru High Court [‘JBHC’] that found the Appellant guilty and convicted him of the following charges: PERTUDUHAN PERTAMA “Bahawa kamu pada 14 Mac 2017, antara jam 3.15 pagi hingga 3.30 pagi di dalam bilik dua sebelah kanan, rumah nombor 17, Jalan Sutera 1, Taman Sentosa di dalam Daerah Johor Bahru, di dalam Negeri Johor Darul Takzim telah didapati mengedar dadah berbahaya iaitu 3,4 Methylenedioxymethaphetamine (MDMA) seberat 93.6 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” 2 PERTUDUHAN KEDUA “Bahawa kamu pada 14 Mac 2017, antara jam 3.15 pagi di tepi Jalan Sutera 3, Taman Sentosa di dalam Daerah Johor Bahru, di dalam Negeri Johor Darul Takzim telah didapati memiliki dadah berbahaya iaitu 3,4 Methylenedioxymethaphetamine (MDMA) seberat 6.17 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(1) Akta yang sama.” PERTUDUHAN KETIGA “Bahawa kamu pada 14 Mac 2017, antara jam 3.15 pagi di tepi Jalan Sutera di dalam Daerah Johor Bahru, di dalam Negeri Johor Darul Takzim telah didapati memiliki dadah berbahaya iaitu Nimetazepam seberat 0.02 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 12(3) Akta yang sama.” [2] In respect of the 1st charge, he was sentenced to death for the trafficking offence. For the 2nd charge he was sentenced to 2 ½ years’ imprisonment and whipping of 3 strokes, and for the 3rd charge he was sentenced to 1 year imprisonment. The custodial sentences were to run concurrently from the date of arrest. 3 THE PROSECUTION CASE [3] On 14.3.2017 at approximately 3.15 am based on information received, Inspector Mohamad Afis bin Zaniah (PW 6) and 7 members of the narcotics team of the IPD Johor Bahru Selatan stopped a Perodua Alza bearing the registration number JMX 5928 on Jalan Sutera 3, Taman Sentosa, Johor Bahru, Johor. The suspect, a Chinese man was seated at the driver’s seat. [4] PW 6 introduced himself and then instructed the suspect to alight from the vehicle in order to conduct a physical examination on the suspect. As a result of the said physical examination, PW 6 recovered in the front left side pocket of the suspect’s trousers, one (1) translucent plastic packet containing 2 small translucent plastic packets containing 25 pills believed to be ecstasy and 23 pills believed to be ecstasy and 3 Erimin 5 pills. [5] Other items recovered by PW 6 from the front left side pocket of the suspect’s trousers were 2 keys. As a result of PW 6 questioning the suspect regarding the said keys, the suspect led the police to the house bearing the address No. 17, Jalan Sutera, Taman Sentosa, Johor Bahru (“the Premises”). [6] Upon arrival at the Premises, it was found that the main gate was not locked. PW 6 instructed the suspect to open the grille door after which PW6 and his team entered the premises and found no one in the premises. [7] Upon entering the premises, the living room of the premises had its lights on. There were 2 rooms to the left and 3 rooms to the right. The 4 suspect showed PW6 and his team the suspect’s room which was the second room on the right. PW6 instructed the suspect to open his room using the key found in the suspect’s front left side pocket of his trousers. A search of the room was conducted and a plastic container was found next to the toilet at the side of the white rack in the said room. [8] PW6 examined the plastic container and found the following: (i) 3 translucent plastic packets each containing 200 pills suspected to be ecstasy; (ii) 5 translucent plastic packets each one containing 25 pills suspected to be ecstasy; (iii) 1 translucent plastic packet containing crystal-like substance suspected to be syabu; (iv) 2 translucent plastic packets containing what was suspected to be ketamin, and (v) 9 tin foils each one containing 10 pills suspected to be Erimin 5. [9] The suspect showed no reaction when the exhibits were recovered and remained silent. PW6 took the suspect and the exhibits back to IPD Johor Bahru Selatan for further action. [10] On 14.3.2017, PW6 handed the accused, all the seized items, and all documents including Taman Pelangi Report 2058/2061/17, Exhibit P15 and P16 to the investigating officers, Insp Shah Rizam bin Salleh (PW2). [11] Wong Khai Fatt (PW5) the owner of the premises, confirmed that the suspect had rented the room from him from October 2016 until the 5 date the suspect was arrested by the police. PW5 further confirmed that the suspect rented the second room on the right in the house. PW5 confirmed that he had cleaned the room prior to the suspect moving into the room and that there were no suspicious items found. FINDING OF TRIAL JUDGE AT THE END OF THE PROSECUTION CASE [12] Founded on PW4’s testimony and Chemist Report (Exhibit P12), the Learned Judicial Commissioner [“LJC”] found that the prosecution has proven the nature and weight of all the impugned drugs framing the subject matter of the three charges. [13] From the evidence given in regard to the movement of the exhibits from the time the exhibits were recovered until the time the exhibits were produced in court, there was no fatal break in the chain of exhibits and he was therefore satisfied that the drugs produced in court were the same drugs seized by the police during the raid. [14] The items were found in the front left side pocket of the accused. Here, the accused had actual possession of the impugned drugs which were found in the front left side pocket of his trousers. It would have been highly improbable if not impossible for the accused not to have known that the impugned drugs were in his pocket. Furthermore, it would have been difficult for someone else to place the impugned drugs in the accused’s front left side pocket without the accused being aware. [15] Pertaining to Tran, the accused’s Vietnamese girlfriend, there was no information about this person except that her name was Tran. The accused could offer no more to the police other than her name. The 6 accused did not know her full name or her phone number. This lack of information made it challenging for the police to locate Tran. [16] The evidence before the court is that the accused had the keys to the grille and the room door. There was no evidence that Tran had keys to the room. There was no evidence that Tran had access to the room. [17] Based on the evidence, the LJC to found that the accused had custody, control and possession of the impugned drugs. The prosecution has made out the elements of possession. Therefore, the prosecution has proven a prima facie case against the accused for the 2nd and 3rd charges. [18] The prosecution was relying on the statutory presumption of trafficking of drugs for the first charge. The prosecution has established possession of the impugned drugs. The LJC therefore found that the prosecution has succeeded in invoking the statutory presumption of trafficking against the accused under s.37(da)(xxii) of the DDA 1952. The accused is hereby called to make his defence. THE DEFENCE CASE [19] The accused chose to give evidence under oath. No other witnesses were called to give evidence. According the accused, his girlfriend who is a Vietnamese woman by the name of Tran wanted to rent the room located at No. 17, Jalan Sutera 4, Taman Sentosa for herself. At the point time of signing the tenancy agreement, PW5 required a Malaysian to sign the tenancy. The accused signed the tenancy agreement on behalf of Tran. It was Tran that stayed in the room at the house. He was given a set of keys to the said room and the house to enable him to visit her at any time. 7 [20] On 14.3.2017 at around 2 am, he went to the premises to pick up Tran. After picking up Tran, they went to a restaurant called Little Vietnam located at Jalan Sutera 2, Taman Sentosa. While he was eating at the restaurant, a group of policemen stopped the accused and conducted a body search but did not find anything illegal. The police then proceeded to ask the accused the location of the premises for the keys they had found in his pocket. The accused felt that there was nothing to hide and lead the police to the premises. [21] Upon reaching the premises, the accused took the policemen to Tran’s room where the police conducted a search. The accused saw the police recover several transparent containers under the shelf next to the bed. According to the accused, he had never seen the containers before when he was in the room. The accused said the last time he was in the room was 2 days before he was arrested. FINDING OF TRIAL JUDGE AT THE END OF THE DEFENCE CASE [22] Despite Tran being the alleged girlfriend of the accused, the accused was unable to provide the police with anything more than her name “Tran”. The accused could not give her full name which made it difficult for the police to locate her. The Court finds its puzzling that the accused could not remember anything about Tran even though the accused had allegedly known her for six months. [23] The impugned drugs were found on the accused in his trouser pocket and in a room which he led the police to. The accused had the keys to open the main grille and the door to the room where the impugned drugs were recovered. The LJC found that the accused had custody, 8 control and knowledge of the impugned drugs. Thus, the accused had possession of the impugned drugs. [24] Here, nothing was known of the existence of Tran except she is a Vietnamese national and that PW5 had met her. These particulars are insufficient to enable the prosecution to conduct investigation to enable the prosecution to rebut the defence story. DECISION AND SENTENCE BY THE TRIAL JUDGE [25] The LJC found that the accused had failed to raise a reasonable doubt as to possession of the impugned drugs. The accused had also failed to rebut the statutory presumption under S 37(da) of the Dangerous Drugs Act, 1952 on the balance of probabilities. There was no reasonable doubt raised as to the possession of the impugned drugs. The LJC found that the prosecution had successfully proven their case beyond reasonable doubt pursuant to S 182A (2) of the Criminal Procedure Code against the accused. [26] For the first charge, the LJC sentenced the accused to death by hanging by the neck until he is dead. [27] With regard to the second charge, the LJC imposed a sentence of imprisonment for a term of two and a half years from the date of arrest and whipping of three (3) strokes. [28] For the third charge, the LJC imposed a sentence of imprisonment for a term of one year from the date of arrest. [29] The imprisonment sentences for the second and third charges were to run concurrently. 9 SUBMISSION BY THE APPELLANT [30] Counsel for the Appellant submitted that the LJC erred when she ruled that the prosecution had made out a prima facie case as possession had not been made out. There was no maximum evaluation of the evidence tendered by the prosecution. Many aspects of the evidence that point to the existence of the appellant's girlfriend and her access and occupation of the room were not considered. [31] These aspects can be gathered from the following: (a) the evidence of the landlord, SPS; (b) the evidence of the raiding officer, SP6; and (c) the evidence of the investigating officer, SP7. [32] The above aspects of the evidence found no mention in the judgment of the LJC. There was certainly no maximum evaluation conducted by the LJC. This omission is an appealable error which warrants appellate intervention as these aspects point to the fact that the appellant was not in possession of the drugs in the room. [33] The LJC further failed to appreciate that this is not a case of S 27, Evidence Act, 1950 where in the appellant led to the discovery of the drugs and there was also no forensic evidence, like DNA or fingerprint evidence, linking the appellant to the drugs. [34] The LJC also erred in failing to adequately appreciate the defence of the appellant. The appellant maintained that he had no knowledge of the presence of the drugs in the room as the occupant was his girlfriend, a Vietnamese by the name of Tran. Tran had access to the room as she 10 had a set of keys and in actual fact it was Tran who wanted to rent the said room but because she was a foreigner, the appellant signed the tenancy agreement. The appellant kept a few pieces of his clothing in the room and the last occasion he was in the room was 2 days before the arrest and the appellant had informed the police about Tran. [35] The LJC failed to appreciate that there was nothing incredible or unreasonable about Tran being an occupier, as this assertion could be supported by the evidence led by the prosecution and that the appellant by informing the police at the very first opportunity had complied with the direction laid down in Teng Howe Sing v PP [2009] 3 CLJ 733. SUBMISSION BY THE RESPONDENT [36] The Respondent submitted that it is not wholly correct to say that the LJC had failed to make an affirmative finding on the element of knowledge in the drug trafficking charge. The argument that the LJC had only relied on SP6’s testimony that drugs were found in the Appellant’s trousers pocket and Appellant’s reaction when the SP6 introduced himself as a police officer to the Appellant is per se flawed. Reference is made to the Grounds of Judgment at Enclosure 7 page 36 where the LJC had made an affirmative finding on the element of knowledge of the impugned drugs found in the room. [37] The Respondent submitted that the evidence as a whole led only to the conclusion that at all material times, the offending drugs in the said room were in the custody and control of the Appellant. The irresistible inference that must be drawn in the light of the evidence was that the Appellant all along knew about the drugs found in the said room. 11 [38] The LJC did not err when she held that based on the available evidence, Tran did not have access to the said room. Pertaining to Tran, the LJC found that there was no information about this person except that her name was Tran and that the Appellant could offer no more information to the police other than her name. The Appellant could not furnish her full name or phone number making it difficult for the police to locate Tran. [39] Therefore, the Respondent submitted that based on the available evidence, it was not Tran whom had free access to the said room and subsequently had possession of the impugned drugs in the said room. The evidence all points irresistibly to the Appellant alone having possession of the impugned drugs in the said room. [40] The same type of drugs in similar packaging was found in the Appellant’s trousers pocket just before the search of the room was conducted, thus, showing that possession of the drugs by the Appellant in the said room was not accidental and goes to show knowledge by the Appellant. Further, to extrapolate, any fingerprint evidence/DNA would be merely corroborative evidence. Mere absence of it did not in any way cause a gap/doubt in the prosecution's case based on the available evidence. [41] The Respondent also submitted that the oral testimony of PW6 does not in any way contradict the Search List which was a contemporaneous document. There was no other plastic container seized to cause any confusion/ or any inferences in favour of the Appellant. And in fact, all exhibits seized were also marked and there was no break in the chain of evidence. 12 OUR DECISION [42] Upon careful consideration of the appeal papers, particularly the grounds as per the Petition of Appeal, the material facts, the issues that arose for our determination and the principles of law applicable to the offences of trafficking in and possession of, dangerous drugs, we state our reasons for our determination of this appeal in favour of the Respondent. Our conclusion was that the Learned Judicial Commissioner [‘LJC’] was not shown to have gone plainly wrong in finding the charges against the Appellant to have been proved beyond any reasonable doubt. [43] In view of the crux of the defence case that the room in question was solely occupied by the said Tran was on the premise that her personal effects were at the material time found in the room, we would at the outset make reference to the Federal Court case of Ghasem Hozouri Hassan v Public Prosecutor [2019] 6 MLJ 231, where it was held that: “… [30] In Siew Yoke Keong, this court held that the presence of the ladies clothing (two female upper garments and two pairs of female jeans) along with male clothing the third room of the first house did not mean that no possession was established against the accused. The crucial question was whether accused was so situated with respect to the proscribed drugs found in the second and third rooms of the first house that he had the power to deal with the drugs as owner to the exclusion of all other persons, and when the circumstances were such that he may be presumed to intend to do so in case of need. 13 [31] Thus, from the above, when we talk about the issue of custody and control, what is crucial is that the accused must be so situated that he can deal with the proscribed drugs as if it belonged to him, and it must 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 (he had animus possidendi). The intention to deal with the drugs here refer to the element of knowledge. [32] We must not lose sight of the fact that more often than not the accused claims ignorance of the drugs to rebut/negate the element of knowledge. Thus, 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 witnesses …”. [44] It would also be instructive to be guided by a case squarely in point, Phiri Mailesi (Zambian) v PP [2013] 1 LNS 391; [2013] 5 MLJ 760 where the Court of Appeal through Hamid Sultan bin Abu Backer, JCA on what is known as the ‘Alcontara Notice’ had this to say: “It is pertinent to note that the ‘Alcontara Notice’ must have sufficient particulars in right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story or version. It must also be given at the earliest opportunity at the material time of the arrest or at least upon counsel taking instruction from the accused to conduct its defence. In addition the defence’s version should be put at the prosecution state and the story must be maintained at the defence stage. There will be a duty placed on the judge even at the prosecution stage to 14 positively evaluate the story of the accused relating to ‘Alcontara Notice’ before evaluating the prosecution case and applying the maximum evaluation as Alcontara case places the onus on the prosecution to rebut or sufficiently explain that they have discharged that onus. In the instant case evidence will show that the deference has not given an ‘Alcontara Notice’ in the right perspective …” [45] We would now proceed to address the 1st ground of appeal, being that the LJC had failed to make an affirmative finding on the element of knowledge in the drug trafficking charge, wherein LJC had only relied on SP6’s testimony that drugs were found in the Appellant’s trousers pocket and as to his reaction when the SP6 introduced himself as a police officer to the Appellant. In the Learned DPP’s [‘LDPP’s’] submission, this contention is plainly flawed. [46] As urged upon us by the LDPP, we proceed to scrutinise how the LJC went on to make an affirmative finding on the element of knowledge in respect of the impugned drugs in the room and reproduce this part of the judgment as per paragraph 75 as follows: “… In this case, the impugned drugs were found on the accused in his trouser pocket and in a room which he led the police to. The accused had the keys to open the grille and the door to the room where the impugned drugs were recovered. With reference to the cases cited above, the court finds that the accused had custody, control and knowledge of the impugned drugs. Thus, the accused had possession of the impugned drugs”. 15 [47] Based on the evidence, as given by witnesses called by the prosecution, it is sufficient in proving the essential elements of custody, control and knowledge. Taken together it provides a complete narrative of facts to establish actual possession whereby: (a) The Appellant had free access to and from the said premise; (b) The Appellant had rented the room since October 2016; (c) The keys to the grille door and room door was handed to the Appellant by PW5; (d) The keys to the grille and the room doors were found in the Appellant’s trousers pocket which show that the Appellant had custody and control and was so situated with respect to the drugs found in the said room that he had the power to deal with the drugs as owner to the exclusion of all other persons, and when the circumstances were such that he may be presumed to intend to do so in case of need shows that the Appellant had knowledge; (e) The element of knowledge can further be inferred from the large quantity of drugs that were in plain view in the said room; (f) This is further reinforced by the fact the same type of drugs in similar packaging was found in the Appellant’s trousers pocket just before the search of the room was conducted. Similar fact evidence-Sections 14 and 15 Evidence Act 1950 16 is applicable to show that possession of the drugs in the said room was not accidental. [48] The question that surfaced before us was whether this admissible evidence alluded to leads only to one conclusion namely, that at all material times, the offending drugs in the said room was in the custody and control of the Appellant. [49] In our considered view, upon careful appraisal of the evidence, the Respondent’s contention was correct that the only irresistible inference that must reasonably be drawn in the light of the proven facts was that the Appellant knew all along about the drugs seized from the said room. This despite her affirmative finding of actual knowledge on the Appellant’s part in a later part of her judgment. [50] We are satisfied that the LJC had in principle taken the correct approach by considering all the evidence adduced in its totality and thereafter, made an affirmative finding that the ingredients of the charge had been made out to establish a prima facie case. [51] We agree with the LDPP that the precise definition of possession is as per the judgment in Chan Pean Leon v PP [1956] 22 MLJ 237 at pages 239, where Thomson, J defined possession as the following: “… “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 17 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 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 direct evidence. It can only be proved by inference from the surrounding circumstances … 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 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 shows such an intention. Or it must be clear that the circumstances in which it is found show 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 here must be something in the evidence to satisfy the Court that the person 18 who is physically in a position to deal with the thing as his own had the intention of doing so … [52] It is trite that the element of knowledge cannot and need not be proved by direct evidence, being a metal element. It is crucial that for an inference of knowledge to be safely made there must exist sufficient surrounding circumstances and indirect evidence from which it can reasonably be inferred that the accused must have had knowledge of the offending substance and its nature within his custody and control. In order to amount to proof, there should not be any ragging doubt that he may not have known of its existence at the place of discovery. There should not be any gap in the material evidence leading to and contrary inference that he lacked knowledge of the said substance. [53] We find it instructive to be guided by another old but leading authority cited by the Respondent, Leow Nghee Lim v Reg [1956] 22 MLJ 28 where Taylor J in discussing the definition of possession stated the following at pages 30: “… The word ‘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 … The word ‘possession’ is a vague and general word which cannot be closely defined. Without at least general knowledge there cannot be possession but there can be possession without full and exact knowledge …” [54] In our view, the LJC was, on the totality of the facts as found to have been proved justified in finding that the vital element of knowledge had 19 been proved against the Appellant for his defence to be called to answer the charges he faced. [55] We will now proceed to address the 2nd important ground of appeal, namely, that the prosecution had failed to exclude access of others to the said room of discovery resulting in possession of the drug exhibits not having been made out against the Appellant. [56] The question of the need for the prosecution to prove that the accused had the power to deal with the drugs to the exclusion of all others was deliberated by the Federal Court in Siew Yoke Kheong v PP [2013] 4 CLJ 149 where the judgment of the Federal Court encapsulates what amounts to possession: “So, in our judgment in the circumstances of this case, the presence of the ladies clothing (two female upper garments and two pairs of female jeans) along with male clothing in the third room of the first house does not mean that no possession was established against Siew. The crucial question is whether Siew was so situated with respect to the proscribed drugs found in the second and third rooms of the first house that he had the power to deal with the drugs 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. In other words, Siew must be so situated that he can deal with the proscribed drugs as if it belonged to him, and it must 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 (he had animus possidendi). Invariably this is a fact which can only be proved by inference from surrounding circumstances of this case. It 20 must be clear from the circumstances in which the proscribed drugs were found, that Siew had the intention of dealing with the drugs as if they belonged to him. The list of such possible circumstances is not exhaustive. One example of such circumstances given by Thompson J in Chan Pean Leon (supra) is a case where an article is found in a locked room where one holds the key. In the present case, Siew was in possession of the keys to the locked first house in which large amount of dangerous drugs were found in two locked rooms; the keys to which were kept at the locations known to Siew. This brings us back to the circumstances and sequences established by the evidence in this case”. [57] In regard to the question of possession of the drugs recovered from the room concerning which the Appellant contended that the LJ failed to adequately appreciate the defence evidence, it is important for us to note, amongst others, that dangerous drugs of the same type were found on the Appellant’s person before the raid was carried out at the premises. This fact, in our view, has bearing on the element of knowledge on the Appellant’s part as to the drugs recovered from the room that was locked at the material time with, as the evidence showed, only the Appellant having access to it. The fact of the same type of drugs by the accused carried in his person was recognised by the Court of Appeal in Ali Hosseinzadeh Bashir v Public Prosecutor [2015] 1 CLJ 918, the Court of Appeal held the following at pages 924 and 929: “[4] When the bag was opened and the contents removed, Senior Customs Officer Elangovan a/l Rethnesamy (‘SP5’) found two packets of crystalline substances hidden in two secret compartments on the right and left walls of the bag. A check on the 21 jacket also revealed a hidden packet containing crystalline substances. SP5 had to make a small cut at the bulging section of the jacket to retrieve the packet. [5] The crystalline substances found in the Appellant’s bag and jacket were sent for analysis and were confirmed by the chemist to contain 540.9g of methamphetaminie. Possession without lawful authority of 50g or more of this drug attracts the presumption of trafficking under s.37(da)(xvi) of the Dangerous Drugs Act 1952 (‘the DDA’). [6] On these facts, the learned trial judge was satisfied that a prima facie case had been established against the appellant and he then called upon the appellant to enter his defence. Having heard the defence he found that the appellant’s explanation failed to cast any reasonable doubt in the prosecution case. Accordingly, he found the appellant guilty as charged … ... But the fact is he was also carrying a packet of drug hidden in his jacket and it was not his case that he was also asked by Ashgar to wear the jacket on his trip to Malaysia. To our mind the presence of the same type of drug in the appellant’s jacket dispels any doubt as to his knowledge about the drugs in the bag. The learned trial judge was therefore right in finding that the appellant had knowledge of the drugs. This finding by necessary implication means that the appellant had failed to rebut the presumption of knowledge. Failure to rebut the presumption means he had knowledge of the drugs …”. 22 [58] As to the 2nd main limb of the Appellant’s defence that there was no adequate appreciation of his defence, his case was in essence, as summarised in the defence counsel’s submission as follows: (i) The appellant maintained that he had no knowledge of the presence of the drugs in the room as the occupant was his girlfriend, a Vietnamese by the name of Tran; (ii) Tran had access to the room as she had a set of keys; (iii) In actual fact it was Tran who wanted to rent the said room but because she was a foreigner, the appellant signed the tenancy agreement; (iv) The appellant kept a few pieces of his clothing in the room and the last occasion he was in the room was 2 days before the arrest; and (v) The appellant had informed the police about Tran. [59] Before us, the Appellant contended that the LJC in considering the defence the LJC had erred in failing to appreciate the following purportedly important factors: (a) That there was nothing incredible or unreasonable about Tran being an occupier, as this aspect could be supported by evidence led by the prosecution; 23 (b) That the appellant by informing the police about Tran at the very first opportunity had complied with the direction laid down in Teng Howe Sing v PP [2009] 3 CLJ 733 where the Federal Court observed: “[31] In Badrulsham’s case, the court was of the view that the failure of the accused to inform the raiding officers that the white plastic bag belonged to Noor Azlan at the time of his arrest and only revealing this information during the interrogation two hours after his arrest, goes some way to support the case for the prosecution. [32] Applying the principle in Badrulsham’s case to the facts of the instant case, the learned trial Judge was correct to conclude that the appellant had two opportunities to provide information about “Ho Seng”, i.e, at the time of his arrest and five days later during recording of his cautioned statement but he failed to do so. We are therefore of the view that in the circumstances, the appellant’s failure to provide relevant information about “Ho Seng” for the police to carry out a through investigation into the probability of his defence, entitled the learned trial judge to disbelieve him”. Additionally, that the Appellant’s credibility was enhanced when he had protested his innocence at the earliest possible stage. [60] We would now proceed to analyse the evidence on the issue at hand and the approach taken by the LJC in resolving this issue before arriving 24 at her finding that the Appellant’s version had failed to raise a reasonable doubt in the prosecution case. [61] The principal question that arose for our determination was whether the LJC had made an erroneous finding that based on the available and plainly wrong evidence Tran did not in fact have access to the room of discovery. In this regard, importantly, we have to take note of the factors that the LJC had considered before arriving at the said finding at the conclusion of the trial. [62] Briefly, the factors that the LJC had considered in her analysis of the evidence are as follows. Firstly, that it was the Appellant who had signed the tenancy agreement [‘TA’] with the owner of the premises [PW5] for rental of the said room. Regarding the issue of others having access to the room, that it was the Appellant who had the keys to the grille door as well as the room door which were found in his left front trousers pocket without any evidence that Tran had the keys to the room as well. [63] Secondly, pertaining to Tran, the Appellant’s Vietnamese girlfriend, the LJC found that there was no information about this person except that her name was Tran and that the Appellant could offer no more information to the police other than her name. Also that he could not furnish her full name or phone number making it difficult for the police to locate Tran. We share her view this lack of information called into question the credibility of his version. [64] We agree with the Respondent that premised on the available evidence, the LJC was justified in concluding that it was only the Appellant who had free and exclusive access to the said room and that the totality 25 of the evidence pointed irresistibly to the impugned drugs to have been in the possession of the Appellant at the material time of the recovery by the raiding party. [65] It would appear that the LJC was well aware of the defence had proffered by the Appellant. It was that based on the testimonies of PW2 and PW5 the Appellant’s girlfriend, a Vietnamese national does in fact exist and had occupied the room where the drugs were found and that in law the onus is on the prosecution to prove that the Appellant had exclusive possession of the incriminating exhibits. [66] This is clearly not an instance where the trial judge had purportedly failed or omitted to take into consideration the evidence of material witnesses [PW2 & PW5] on the issue at hand and of the scene of recovery. Having considered the evidence in its entirety, including the presence of women’s personal belongings in the said room, the LJC held the view that this would be the usual modus operandi for those dealing with dangerous drugs to place such items in a place where the dangerous drugs are kept to raise the defence that the exhibits were not in their custody and control. [67] While the above may be the LJC’s personal view, based on the LJC’s reasoning, we are not convinced that the LJC’s finding was erroneous and against the weight of unchallenged evidence. In view of the totality of the evidence that we have alluded to. The Respondent was right to contend that the evidence concerning the presence of the said items in the room ought to be only given minimal weight and would be insufficient to contradict the irresistible inference from the facts that the 26 Appellant had possession of the impugned drugs to the exclusion of all other persons. [68] This position is consistent with the judgment in the Federal Court case of Siew Yoke Keong v PP [2013] 4 CLJ 149 as follows: “[35] So, in our judgment in the circumstances of this case, the presence of the ladies clothing (two female upper garments and two pairs of female jeans) along with male clothing in the third room of the first house does not mean that no possession was established against Siew. The crucial question is whether Siew was so situated with respect to the proscribed drugs found in the second and third rooms of the first house that he had the power to deal with the drugs 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. In other words, Siew must be so situated that he can deal with the proscribed drugs as if it belonged to him, and it must 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 (he had animus possidendi). Invariably this is a fact which can only be proved by inference from surrounding circumstances of this case. It must be clear from the circumstances in which the proscribed drugs were found, that Siew had the intention of dealing with the drugs as if they belonged to him. The list of such possible circumstances is not exhaustive”. [69] It is settled law that the concept of “exclusive possession” is non- existent in criminal law and the duty of the prosecution is only to prove possession of the offending article. 27 [70] If the prosecution succeeds in doing so, the question of exclusive possession would not arise as the matters ends here. [See PP v Denish Madhavan [2009] 2 CLJ 209] [71] We are satisfied that considering the overall evidence, particularly the insufficiency of the defence evidence relating to Tran being the occupier of the said room, the LJC had made a fair finding that the prosecution did not fail to exclude access of others to the said room resulting in possession proven having been against the Appellant. This is as apart from PW5 meeting Tran when the room was rented out and once when the air conditioning of the room was not working as well as the presence a few items presumably belonging to a woman, no other evidence was available to show that Tran had free access to the room where the impugned drugs were recovered. [72] We have duly noted the trite principle that where a gap surfaces in the case for the prosecution, the onus is on the prosecution, not on the defence, to bridge that gap, failing which there would be no prima facie case for the accused to answer. As observed by the Court of Appeal in Lean Siew Boon & Anor v PP [2014] 2 MLJ 572 where Tengku Maimun Binti Tuan Mat, JCA (now CJ) said inter alia: “In the circumstances, we agree with the appellants that there is a gap in the prosecution’s case which had not been bridged (see Abdullah Zawawi v Public Prosecutor [1985] 2 MLJ 16). The onus is not on the defence to prove the possibility of others having access to the said unit but on the prosecution to exclude such possibility (see Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 3 MLJ 1)”. 28 [73] We have taken note of the LJC’s approach to the purported gap in the prosecution case in regard to the existence of Tran as the actual occupier of the said room. The thrust of the defence submission on this issue was that due notice, now known as the ‘Alcontara Notice’ had been given to the prosecution of the facts relating to Tran. In our view, the LJC was correct in holding that: “The ‘Alcontara Notice’ is required to be given at the earliest opportunity. It is also required that the ‘Alcontara Notice’ must have sufficient particulars in the right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story.” [74] She was also correct in holding that there must be prompt disclosure in the cautioned statement with sufficient particulars which is the first opportunity to do so. [75] As justifiably correctly done by the LJC, guidance was sought from the Court of Appeal judgment in Rengarajah Thangavelu v PP [2015] 1 CLJ 993 where it was remarked that: “In respect of ground (i) we have meticulously looked into the cautioned statement. There was no sufficient information for the police to investigate the case in relation to the person ‘Pandian’ who the appellant says gave the drugs to him. And also there was no sufficient information of the person who the appellant says the drugs were supposed to be handed over to by him as per ‘Pandian’s’ direction. 29 From the decided cases, the information in the cautioned statement without sufficient information of ‘Pandian’ and the purported recipient is a story and is not a good ‘Alcontara Notice’ for placing an obligation on the part of the prosecution to rebut the same. The story if true, places the burden on the appellant to rebut trafficking on the balance of probabilities. That is to say, he may have to call ‘Pandian’ or the purported recipient to give evidence in support of his case. However, if he has given a good ‘Alcontara Notice’ the obligation will be for the prosecution to track down ‘Pandian’ or the purported recipient to ascertain the truth of the appellant’s story to the satisfaction of the court. A bad ‘Alcontara Notice’ does not help the appellant at all but imposes an obligation on the appellant to lead evidence in relation to his story to rebut trafficking, that too on a balance of probabilities. In Phiri Mailesi (Zambian) v PP [2013] 1 LNS 391; [2013] 5 MLJ 780, the Court of Appeal, through Hamid Sultan bin Abu Backer JCA on ‘Alcontara Notice’ had this to say: “It is pertinent to note that the ‘Alcontara Notice’ must have sufficient particulars in the right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story or version. It must also be given at the earliest opportunity at the material time of the arrest or at least upon counsel taking instruction from the accused to conduct its defence. In addition, the defence’s version should be put at prosecution stage and to positively evaluate the story of the accused relating to ‘Alcontara Notice’ before evaluating the prosecution case and applying the maximum evaluation as Alcontara case places the onus on the prosecution to rebut or sufficiently explain that they have 30 discharged that onus. In the instant case evidence will show that the defence has not given an ‘Alcontara Notice’ in the right perspective.” [76] Having taken cognisance the above principle and the facts before her, the LJC concluded, to our minds not erroneously that nothing was known of the existence of Tran except that she is a Vietnamese national and that PW5 had met her and that these particulars, with reference to the case of Alcontara A/L Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705 and the case of Rengajaran Thangavelu v PP [2015] 1 CLJ 993 are insufficient to enable the prosecution to conduct an investigation to rebut the defence story. [77] Accordingly, we did not find any merit in the Appellant’s contention that as a result of inadequately investigating the existence of Tran at the material time as allegedly the sole occupier of the said room there had arisen a gap in the prosecution case which the prosecution had failed to bridge. [78] On the contrary, as the notice in regard to Tran was vague and lacking in sufficient material particulars, the question, of any gap in the prosecution case pertaining to the impugned drugs did not arise at all. In any event, the conclusion of the LJC on this point was a pure finding of fact based on the evaluation of the evidence and the credibility of material witnesses that should not be disturbed on appeal. [79] In our judgment, the LJC had properly evaluated the evidence as a whole which is apparent from her grounds of judgment and her reasoning in support of the findings of fact that she had made on the critical issues 31 that arose for determination. As she had viewed the whole of the evidence adequately and had in mind relevant considerations, there was no question of the LJC having misdirected herself in not carrying out a maximum evaluation of the evidence led by the prosecution or having failed to judicially appreciate the evidence led by the Appellant in his defence. Hence, she had not fallen foul of the settled principle on the duty of the trial Court as expounded by the Federal Court in Gooi Loo Seng v PP [1993] 2 MLJ 137: “Clearly, therefore, the trial judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that non-direction amounts to misdirection, for in the words of Pickford J in R v Bund ‘… the trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence. We must treat the failure of a trial judge sitting alone, to direct himself correctly in the same way as a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred. Accordingly, we have no alternative but to allow the appeal, quash the conviction and to substitute in lieu thereof, an order of acquittal and discharge.” 32 CONCLUSION [80] We do not propose to comment on the 3rd and 4th Grounds dealt with by the Respondent in the PP’s Submission in Reply as these grounds have not been pursued in the Appellant’s Written Submission. [81] For the reasons aforementioned, we agree with the Respondent’s position that this appeal is baseless and devoid of merits in fact or law based on the totality of evidence before the Trial Court and the principles applicable to the issues in dispute relating to the possession of and trafficking in dangerous drugs. [82] To sum up, we are fully convinced that the LJC at the conclusion of the trial had adequately analysed and weighed the defence evidence and tested the same against the evidence led at the prosecution stage. Having conducted this exercise, it was on the entirety of the evidence that the LJC had made a finding of fact that the defence had failed to raise a reasonable doubt as to the possession of the impugned drugs as per the charge and had also failed to rebut on a balance of probabilities the statutory presumption of trafficking under 37(da) of the DDA. [83] Ultimately, that the charge against the Appellant had been proven beyond any reasonable doubt. To our minds, the LJC had adopted the correct approach in arriving at her decision to find the Appellant guilty as charged and accordingly, to convict him. [84] It was incumbent for us to appreciate the well settled principle that an appellate court would be slow to interfere with a trial judge’s decision 33 based on credibility of witnesses and the making of findings of fact is a function reserved by law exclusively for the trial judge. [85] Upon adequately assessing and having evaluated the defence evidence, the LJC made a finding of fact that the Appellant lacked credibility and was unable to raise any reasonable doubt in the case made out against him. We do not see any serious flaw in her finding that the case of his defence did not amount to more than a bare denial. Neither in her appraisal of the entire facts of the case before coming to this conclusion. [86] As pointed out to us by the Respondent, in the Federal Court case of D.A. Duncan v PP [1980] 2 MLJ 195, it was decided categorically that a bare denial was not enough to raise a reasonable doubt: “… The defence was, in effect a simple denial of evidence connecting the appellant with the four boxes. We cannot see any plausible ground for saying that the four boxes were not his. In this circumstances of the prosecution evidence, the High Court came, in our view, to the correct conclusion this denial did not cast a doubt on the prosecution case against the appellant.” [87] In conclusion, we held that there were no merits at all in the grounds of appeal advanced by the Appellant that the LJC had erred in law or fact or was plainly wrong in deciding as she did. [88] There was patently sufficient judicial appreciation of the evidence adduced by both sides and application of the correct principles in arriving at her decision. We were, therefore, inclined to dismiss this appeal and 34 uphold the decision of the High Court. We would conclude that the conviction of the Appellant and sentence passed on him was, under circumstances, safe and ought to be affirmed. Dated: 07 March 2022 - sgd - GUNALAN A/L MUNIANDY Judge Court of Appeal Putrajaya COUNSEL FOR THE APPELLANT Messrs. Hisyam Teh Haji Hisyam Teh Poh Teik (together with Leong Xin Wen and Yong Jei Beng) COUNSEL FOR THE RESPONDENT Attorney General Chambers Puan How May Ling, Deputy Public Prosecutor 35