Low Wei Beng

IN THE HIGH COURT OF MALAYA IN JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM CRIMINAL APPEAL NO. : JA-42H-4-04-2018 BETWEEN LOW WEI BENG AND PUBLIC PROSECUTOR BEFORE YA DR SHAHNAZ BINTI SULAIMAN JUDICIAL COMMISSIONER, HIGH COURT MALAYA, JOHOR BAHRU IN OPEN COURT GROUNDS OF DECISION INTRODUCTION [1] This is an appeal against the decision of the learned Sessions Court Judge (SCJ) at Johor Bahru given on 16 April 2018. The appellant was convicted and sentenced for two offences under section 8 of the Firearms (Increased Penalties) Act 1971 and under section 8(a) of the Firearms Act 1960 respectively. 1 THE CHARGE [2] The appellant was charged in the Sessions Court at Johor Bahru for two (2) charges as follows: “Pertuduhan Pertama Bahawa kamu pada 14 Oktober 2015 jam lebih kurang 10.00 malam di halaman rumah No. 54, Jalan Hang Tuah 3, Taman Skudai Baru, Skudai, di dalam Daerah Johor Bahru, di dalam Negeri Johor, telah mempunyai dalam milikan kamu senjata api sepucuk pistol model Beretta U.S.A. Corp. ACKK. MD-MADEIN USA No. Siri BER402329 Z dan satu kelopak pistol PB CAL 9 PARA MADE U.S.A. tanpa kebenaran yang sah dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah Seksyen 8 Akta Senjata Api (Penalti Lebih Berat) 1971.” [3] Section 8 of the Firearms (Increased Penalties) Act 1971 is punishable with an imprisonment term which may extend to fourteen years and with whipping with not less than six strokes. Pertuduhan Kedua “Bahawa kamu pada 14 Oktober 2015 jam lebih kurang 10.00 malam di halaman rumah No. 54, Jalan Hang Tuah 3, Taman Skudai Baru, Skudai, di dalam Daerah Johor Bahru, di dalam Negeri Johor, telah ada dalam milikan kamu 11 butir peluru jenis 9mm Luger PMC tanpa kebenaran yang sah dan dengan itu, kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah Seksyen 8(a) Akta Senjata 1960.” 2 [4] The offence is punishable for a term not exceeding seven years imprisonment or to a fine not exceeding ten thousand ringgit or to both. [5] The appellant claimed trial, was found guilty and convicted on both charges. Upon conviction, the appellant was sentenced to 9 years imprisonment from the date of arrest (15 October 2015) and 6 strokes for the first charge and 3 years imprisonment to run concurrently for the second charge. FACTS OF THE CASE [6] The facts of the case are that on 14 October 2015 at approximately 8.50pm, while Inspector Nadzrul (PW 3) was on duty visiting the lockup at Skudai Police Headquarters, North Johor Bahru, the appellant had called out to PW 3. [7] As PW 3 approached the appellant, the appellant said to PW 3, “Tuan, saya mau cakap dengan Tuan”. PW 3 then asked the appellant what he wanted to say, to which the appellant replied, “Tuan, saya simpan pistol, boleh tunjuk”. PW 3 then wrote this information on a piece of white paper which was signed by both PW 3 and the appellant. However, the information written on the said piece of white paper stated “Tuan, simpan pistol, boleh tunjuk”. [8] Based on the said information and directed by the appellant, PW 3 and his team were led to No. 54, Jalan Hang Tuah 3, Taman Skudai Baru, Skudai. Upon arrival at the said house, the appellant pointed to bushes in the compound of the house. PW 3 searched the bushes and found a black plastic bag (Exhibit P29). 3 [9] An examination of P29 by PW 3 revealed a black pistol (Exhibit P5) and eleven (11) 9mm bullets (Exhibit P10 a-c & P11 a-h). PW 3 then prepared a search list (Exhibit P19) which was signed by the appellant. This search list (Exhibit P19) together with the items found were handed over to Inspector Liew Choon Yong (PW 11). [10] On 18 October 2015, PW 11 handed over the items to PW 1 for a serviceability test. The result of PW 1’s test found that Exhibit P5 and P10 a- c and P11 a-h were found to be in working condition and serviceable. [11] The appellant claimed trial to the charges. At the end of the prosecution case, the learned SCJ ruled that the prosecution had established a prima facie case against the appellant for both charges and called upon the appellant to enter his defence. [12] The defence’s contention was that pistol and bullets were packaged by a person named ‘Ah Bee’ and that it was Ah Bee who had put away the pistol on 24 September 2015 or 25 September 2015. The appellant’s recorded statement supports this assertion. DUTY OF COURT IN APPEALS [13] The duty upon a court hearing an appeal from a subordinate court is set out in s. 316 of the Criminal Procedure Code and reads: “316. Decision on appeal At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may: 4 (a) in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be made, or that the accused be re- tried, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction or in an appeal as to sentence: (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried; or (ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence; (c) in an appeal from any other order, alter or reverse such order.” [14] The Privy Council in the case of Sheo Swarp v The King Emperor AIR [1934] PC 227 held that before the appellate court interferes with findings of fact, it must keep in mind several considerations. Lord Russell held: “…the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witness; (2) the presumption of innocence in favour of the accused, a presumption is certainly not weaken by the fact that he has been acquitted at his trail; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that 5 the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.” [Emphasis added] [15] In the case of Periasamy Sinnapan v. PP [1996] 3 CLJ 187, Gopal Sri Ram JCA, (as His Lordship then was) said: “In the state of the law, what was the duty and function of the learned judge on appeal? His duty and function have been the subject of discussion in a great many cases and for purposes we find it sufficient to refer to two of these. In Lim Kheak Teong v. PP [1985] 1 MLJ 38, the sessions court acquitted the accused on two charges under the Prevention of Corruption Act 1961, after having heard his defence. On appeal, the High Court set aside the order of acquittal and substituted therefor an order of conviction. The accused applied under the now repealed s. 66 of the Courts of Judicature Act 1964 to reserve a question of law. In allowing the application and quashing the conviction, the Federal Court, whose judgment was delivered by Hashim Yeop Sani FJ (later CJ, Malaya) said (at pp 39-40): ... we gave leave because firstly we felt that there was no proper appraisal of Sheo Swarup v. King-Emperor AIR 1934 PC 227 and secondly purporting to follow Terrell Ag CJ in R v. Low Toh Cheng [1941] MLJ 1, the appellate judge went into conflict with the trend of authorities in similar jurisdictions. 6 With respect, what Lord Russell of Killowen said in Sheo Swarup was that although no limitations should be placed on the power of the appellate court, in exercising the power conferred ‘the High Court should and will always give proper weight and consideration to such matters’ as: (1) the views of the trial judge on the credibility of the witnesses; (2) the presumption of innocence in favour of the accused; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. Lord Reid reiterated this same principle in Benmax v. Austin Motor Co Ltd [1955] AC 370 at p 375 where he quoted from Lord Thankerton’s judgment in Watt (or Thomas) v. Thomas [1947] 1 All ER 582 that: Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion. 7 The learned appellate judge held that the learned President had ‘misdirected himself on the explanation of the accused.’ Given the facts as stated in the appeal record, can it be said that there was a misdirection? Or can it be said that the decision of the learned President was ‘plainly unsound’? (Watt (or Thomas) v. Thomas). On the facts of this case we do not think so.” [Emphasis added] [16] In P’ng Hun Sun v. Dato’ Yip Yee Foo [2013] 6 MLJ 523, the Court of Appeal held: “When the finding of the trial judge is factual, however the fact finders decision cannot be disturbed on appeal unless the decision of the fact finder is plainly wrong (see China Airline Ltd v. Maltran AirCorp. Sdn Bhd & Anor Appeal [1996] 2 MLJ 517; [1996] 3 CLJ 163; Zahara bt. A. Kadir v. China Airline Ltd v. Maltran AirCorp. Sdn Bhd & Anor Appeal [1996] 2 MLJ 517; [1996] 3 CLJ 163; Zahara bt. A. Kadir v. Ramuna Bauxite Pte Ltd & Anor [2011] 1 LNS 1015; Kyros International Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] 2 MLJ 650; [2013] 1 LNS 1. The findings of fact of the trial judge can only be reversed when it is positively demonstrated to the appellate court that; a) By reason of some non-direction or misdirection or otherwise the judge erred in accepting the evidence which he or she did accept; or 8 b) In assessing and evaluating the evidence the judge has taken into account some matter which he or she ought not to have taken into account; or c) It unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he or she cannot have taken proper advantage of his or her having seen and heard the witnesses; or d) In so far aside the Judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witness which he or she accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer.” [Emphasis added] [17] Thus with reference to the cases quoted above, an appellate court should be slow to interfere with the findings of a trial judge unless there is some non-direction or misdirection which resulted in the trial judge erring in the acceptance of evidence, or if the judge had taken into consideration some matter which ought not to be taken into account, or if the evidence shows or for some unsatisfactory reason given by the judge that he or she could not take advantage of having heard or seen the witnesses, or where the judge has relied on manner and demeanour when there are other circumstances which show that the evidence of the witness is not credible. 9 ISSUES [18] Based on the appellant’s written and oral submissions, the main issues the appellant raised can be summarised as follows: (i) The learned SCJ had erred when he found that the prosecution had proven a prima facie case and called for defence to be entered; (ii) The learned SCJ had erred when he held that the appellant was in possession of the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h), based on his conduct under section 8 of the Evidence Act 1950; and (iii) The learned SCJ has erred when he failed to consider the defence case. THE LAW [19] Pertaining to the first charge, section 8 of the Firearms (Increased Penalties) Act 1971 provides: “Any person who is in unlawful possession of a firearm shall be punished with imprisonment for a term which may extend to fourteen years and with whipping with not less than six strokes.” [20] Section 2 of the Firearms (Increased Penalties) Act 1971 defines unlawful possession as: “unlawful possession of a firearm” means possession, custody or control of a firearm, or the carrying thereof, in contravention of the Arms Act 1960.” 10 [21] With regard to the second charge, section 8(a) of the Firearms Act 1960 states: “Any person who in contravention of the provisions of this Act - (a) has in his possession, custody or control, or carries or uses any arm or ammunition without an arms licence or arms permit in that behalf or otherwise than as authorized by the licence or permit or, in the case of ammunition, in quantities in excess of those so authorized; or (b) fails to comply with any condition or to observe any restriction subject to which an arms licence or arms permit is held by him, shall, on conviction, be liable in respect of any such contravention to imprisonment for a term not exceeding seven years or to a fine not exceeding ten thousand ringgit or to both.” ANALYSIS [22] These issues raised will be deliberated individually below. (i) The learned SCJ had erred when he found that the prosecution had proven a prima facie case and called for defence to be entered. [23] The learned SCJ in assessing the prosecution case had held that the prosecution had proven a prima facie case and called for defence to be entered. In his Grounds of Judgment, the learned SCJ considered the ingredients which the prosecution had to prove under both the charges. The ingredients for the offence are: (i) Possession; 11 (ii) Arm or ammunition; and (iii) Without a licence or valid permit [24] Counsel for the appellant admitted that the learned SCJ had made a correct finding of law but submitted the learned SCJ had erred when finding that the prosecution had fulfilled all the ingredients for both the said charges. [25] It was the appellant’s contention that the ingredient “possession” was not fulfilled by the prosecution. Counsel for the appellant submitted this was due to the fact that the appellant was in the police custody in relation to a kidnapping case, and was therefore not in “possession” of the exhibit. [26] The prosecution’s case was that the appellant had informed PW 3 that he had wanted to speak to PW 3. PW 3 asked the appellant what he wanted to say, to which the appellant replied, “Tuan, saya simpan pistol, boleh tunjuk”. PW 3 then wrote this information on a piece of white paper which was signed by both PW 3 and the appellant. However, the information written on the said piece of white paper stated “Tuan, simpan pistol, boleh tunjuk”. The word “saya” was eliminated from the sentence. [27] Following from this, the appellant led the police to the premises No. 54, Jalan Hang Tuah 3, Taman Skudai Baru, Skudai. Upon arrival at the said house, the appellant pointed to bushes in the compound of the house. PW 3 searched the bushes and found a black plastic bag (Exhibit P29). Exhibit P29 contained a black pistol (Exhibit P5) and eleven (11) 9mm bullets (Exhibit P10 a-c & P11 a-h). [28] It was argued by counsel for the appellant that the appellant was not in possession of the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a- 12 h). The argument put forward was that the appellant was in the police custody in relation to a kidnapping case and therefore could not be in possession of the pistol and bullets. [29] Nonetheless, the police would not have been able to recover the pistol (Exhibit P5) and the pistols (Exhibit P10a-c & P11 a-h) had the appellant not led the police and pointed to the bushes in the garden of No. 54, Jalan Hang Tuah 3, Taman Skudai Baru, Skudai. This is because the items recovered were not visible to someone conducting a search. It was only with the information from the appellant that the police were able to recover the items. [30] The learned SCJ in his grounds of decision considered the case of Chan Pean Leon v PP [1956] MLJ 237 pertaining to “possession”. In Chan Pean Leon v PP [1956] MLJ 237, Thomsom J stated: “possession” itself as regards the criminal law is described as follows in Stephen’s Digest, 9th edn, p 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 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. 13 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. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intent 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 shews such an intention. Or it must be clear that the circumstances in which it is found shew such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the court that the person who is physically in a position to deal with the thing as his own had the intention of doing so.” 14 [Emphasis added] [31] The learned SCJ found that there was enough evidence to prove that the appellant was in possession of the exhibit, even though the appellant was in police custody. [32] This included the evidence of PW3, L/Cpl Mohd Ashraff bin Ehsan, the sentry (PW 9) and PW 11 that the house was fenced and locked at the time of the incident. Furthermore, the bushes where the exhibits were recovered were within the compound of the house which were not accessible as it was fenced and locked. [33] Moreover, no one could have entered into the compound from 9 October 2015 as the compound was cordoned by the police to stop anyone from entering the house. The appellant in examination in chief stated that the last time he went to the house was on 28 September 2015. [34] The learned SCJ agreed with the prosecution’s contention that the appellant went to the house on 28 September 2015 and hid the firearm and ammunition in the bushes. [35] This court finds that the learned SCJ had correctly found the appellant had possession and control of the firearms and ammunition under the first and second charge respectively. [36] It is noted the house was not cordoned from 28 September 2015 to 9 October 2015. The last time the appellant was at the house was on 28 September 2015. Nonetheless, the appellant led PW 3 and the team to the recovery of the items. The pistol and the bullets were recovered in bushes in the compound of No.54, Jalan Hang Tuah 3, Taman Skudai Baru, Skudai. 15 The items recovered were not visible to anyone. The appellant led PW 3 and team to the discovery of the pistol and bullets. This indicates the knowledge that the appellant had as to the whereabouts of the items. This establishes that the appellant was in possession and control of the firearms and ammunition. [37] The firearms and the ammunition were found to be serviceable after undergoing tests for serviceability. This is evidenced by the testimony of PW 1 and the firearms report (Exhibit P2). There was no evidence to show that the appellant had a permit or licence to keep the firearm or the ammunition. [38] The ingredients of the offence the appellant was charged for, specifically under section 8 of the Firearms (Increased Penalties) Act 1971 and section 8(a) of the Firearms Act 1960 had been fulfilled. Therefore, I find that the learned SCJ was correct in finding that the prosecution had made out a prima facie case against the appellant with regard to both the charges and consequentially called for his defence. (ii) The learned SCJ had erred when he held that the appellant was in possession of the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h), based on his conduct under section 8 of the Evidence Act 1950. [39] From the facts of the case, the appellant led the police to a house bearing the address No 54, Jalan Hang Tuah 3, Taman Skudai Baru, Skudai in Johor Bahru. Once at the said premises, the appellant pointed to the bushes in the garden of the house. A search of the bushes led to the discovery of a black plastic bag which contained the incriminating exhibits in this case. 16 [40] Counsel for the appellant contended that the learned SCJ had erred when he held that the appellant’s conduct of pointing to the bushes was relevant to display that the appellant had knowledge of the firearm and is relevant under section 8 of the Evidence Act 1950. [41] Section 8 of the Evidence Act 1950 states: “(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 - The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 - When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant.” [42] Based on the facts of the case, the plastic bags could not have been recovered had it not been for the information provided by the appellant. The appellant informed PW 3 he knew where the items were kept. The appellant subsequently led PW 3 and the police team to the premise No 54, Jalan 17 Hang Tuah 3, Taman Skudai Baru, Skudai, where the appellant pointed to the bushes. The conduct of the appellant in pointing to the bushes where the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h) were recovered, to my mind is admissible in evidence as conduct under section 8 of the Evidence Act 1950 through the evidence of PW3. [43] The discovery of the exhibits in the bush itself provides the security that the information was given by the appellant and this can be admitted under section 27 of the Evidence Act 1950. [44] In Prakash Chand v State, AIR [1979] SC 400 the Supreme Court of India stated: “For example, the evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where the stolen articles or weapons which have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any information contemporaneously with or antecedent to any such conduct falls within the purview of section 27 of the Evidence Act.” [45] The discovery of the exhibits (P5, P10 a-c & P11 a-h) based on the information provided by the appellant can be allowed under section 27 of the Evidence Act 1950. Section 27 of the Evidence Act 1950 states: “When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.” 18 [46] Sarkar’s Law of Evidence by Lexis Nexis provides the following explanation pertaining to section 27 of the Indian Evidence Act: “The section permits the proof of all kinds of information whether contained in a confession or not and therefore goes beyond the provisions of ss. 25 and 26. When the information contained in the statements (whether amounting to a confession or not) made by an accused person in police custody are confirmed by the finding of some object or fact, the danger disappears; for the discovery of the stolen goods, the instrument of crime, the dead body, the clothes which the deceased were wearing or any other material thing, which are capable of being perceived by the senses demonstrates conclusively that these portions at least of the confessions cannot have been false. In such a case so much of the information given by the accused as relates distinctly to the fact thereby discovered becomes relevant under s. 27. The word “it” in the phrase “Whether it amounts to a confession or not” refers to information. … The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only of the information which was the clear, immediate and proximate cause of the discovery. Section 27 of the Indian Evidence Act is founded on a principle that even though the evidence relating to the confessional or other statements made by a person while he is in the custody of 19 a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence. (Geejaganda Somaiah v. State of Karnataka, 2007 CrLJ 1792 (1797) : AIR 2007 SC 1355 : 2007 AIR SCW 1681 : 2007 (3) Crimes 38 : 2007 (3) SCC (Cri) 135). As the section is alleged to be frequently misused by the police, the Courts are required to be vigilant about its application. The Court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the section must be viewed with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The Court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of s. 27 the Evidence Act. (Geejaganda Somaiah v. State of Karnataka, 2007 Cr LJ 1792 (1797) : AIR 2007 SC 1355 : 2007 AIR SCW 1681 : (2007) 3 Crimes 38 : (2007) 3 SCC (Cri) 135). The following are the requirements or condition for application of Section 27 of the Evidence Act: 20 (1) That consequent to the information given by the accused, it led to the discovery of some fact stated by him. (2) The fact discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused. (3) Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information. (4) The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition ie, the knowledge of the accused of the place where the object was produced and the knowledge that it was there. (5) only such portion of the information as is distinctly connected with the said discovery is admissible. (6) The discovery of the fact must relate to the commission of some offence. Fact discovered therefore, has to be a combination of both the elements, that is, physical object and mental condition. (Amitsingh Bhikamsingh Thakur v. State of Maharashtra (2007) 2 SCC 310 (321, 322) : AIR 2007 SC 676; Anter Singh v. State of Rajasthan (2004) 10 SCC 657; State v.Mohd. Afzal (2003) 107 DLT 385 (Del); Azab Ali v. State of Tripura (2009) 1 Gauh LR 621 (Gauh-DB); Prithviraj v.State of Rajasthan, 2004 Cr LJ 2190 (Raj) : 2004 (4) Raj LW 2224 : 2004 (2) Raj LR 514; Surajbhan v. State of Rajasthan 2004 Cr LJ (NOC) 289 21 (Raj) : 2004 (2) Raj LW 874 : 2003 (3) Raj LR 463 ]. It can be very well concluded that allowed to be proved is the information, such part thereof, as related distinctly to the fact thereby discovered. The word “distinctly”, means “directly”, “indubitably”, “strictly” and “unmistakably”. As per the settled proposition of law a statement made by the accused should be split up and so much of the statement that is the immediate cause of discovery will be a legal evidence under Section 27 of the Evidence Act. Recovery affected under s. 27 would become relevant and important, if only the recovered items were used in the commission of offence. (Onteru Venkata Suba Reddy v. State of A.P., 2008 CrLJ 2870 (2873): 2008 (2) Andh LT (Cri) 89 (AP-DB)). [Emphasis added] [47] Based on the facts of the case, the information with led to the discovery of the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h) has fulfilled the requirements as stated above. Therefore, I find that the evidence was correctly admitted at the trial. [48] In Yee Ya Mang v. Public Prosecutor [1971] 1 LNS 156; [1972] 1 MLJ 120 it was stated: “… when it is proved that the accused made a statement to the effect “I have concealed the articles at a particular place and I will produce them” and if those articles are discovered in consequence of that statement, that would be evidence of his possession even though those articles were kept or concealed in another man’s property, 22 because unless he had possession he would not have kept them at that place.” [49] Hence, based on the deliberation above, I cannot find a defect in the learned SCJ’s admission of the information given by the appellant. I therefore find that the learned SCJ had admitted the correctly admitted the evidence at trial. (iii) The learned SCJ has erred when he failed to consider the defence case. [50] Counsel for the appellant submitted that the learned SCJ had failed to consider the defence case. [51] The appellant had in cross examination by the prosecution stated that he himself had packaged the exhibit and hid the exhibit in the bushes within the compound of the house. This supports the prosecution’s contention that the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h) were recovered as a result of the appellant’s act of packaging and hiding the exhibits in the bushes. [52] The learned SCJ found that it was clear that the firearms and ammunition was in the possession and control of the appellant when the appellant followed the orders of “Ah Bee” to keep the firearm. In cross examination, the appellant agreed that even though the firearm belonged to “Ah Bee”, but it was he the appellant who had and kept the firearm. [53] In court the appellant also testified that “Ah Bee” stayed in house No 112, Jalan Hang Tuah 1, Taman Skudai Baru and not at the place of incident where the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h) were 23 covered. The premise where the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h) were recovered was at No. 54, Jalan Hang Tuah 3, Taman Skudai Baru, Skudai. [54] The learned SCJ found that there was no nexus between “Ah Bee” and the place of the incident, and therefore it is not possible for “Ah Bee” to have hidden the firearm. Moreover, there was no evidence to support the assertion that the firearm was hidden by “Ah Bee”. [55] Furthermore, the learned SCJ made a distinction between “ownership” and “possession” in the evaluation of the defence case. While “Ah Bee” may be the owner of the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a- h), it was the appellant who had possession of the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h). The learned SCJ therefore found that the defence had failed to raise a reasonable doubt in the prosecution case. [56] Based on the evidence, I find there was no link between “Ah Bee” to the place of the incident. The appellant gave evidence that “Ah Bee” was the owner of the items. The concept of ownership and possession, to my mind, differs. In this case, the appellant was the one who packaged the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h) and hid the items in the bushes. While “Ah Bee” allegedly had ownership of the item, he did not have possession of the same. This is due to the fact that it was the appellant who had packaged the pistol (Exhibit P5) and bullets (Exhibit P10 a-c & P11 a-h) and hid them in the bushes. It was the appellant who had possession of the items. [57] Therefore, I find no fault in the learned SCJ’s finding that the defence had failed to raise a reasonable doubt in the prosecution case. 24 DECISION [58] Considered in entirety and on the available evidence, this court finds that the learned SCJ had not erred in fact or in law in finding that the defence had not succeed in raising a reasonable doubt in the prosecution case. [59] The learned SCJ had the advantage of hearing the witnesses and therefore the findings made by the learned SCJ had taken into account the demeanour and testimony of the witnesses. [60] It would appear to my mind there is no convincing argument to meddle with the findings of the learned SCJ. Therefore, I find that this case does not warrant an appellate interference. The appellant’s appeal against the conviction for both charges are hereby dismissed. The conviction by the learned SCJ of the appellant for both charges are upheld. SENTENCE [61] The learned SCJ in handing down the sentence took into consideration that the offence was a serious offence. This, according to the learned SCJ, was evident from the provision of the sentence itself. [62] The learned SCJ in deciding on the sentence gave foremost consideration to the public interest. Reference was made to the case of Rex v Kenneth John Ball (35 Civil Appeal R 164). The learned SCJ considered the mitigating factors including the fact that the appellant is a first time offender. [63] I find that the learned SCJ had correctly considered public interest which is the foremost consideration. In deciding on the sentence, the learned SCJ considered the sentencing trends in Ooi Sim Yin v PP [1990] 1 CLJ 25 223, Ibrahim Ahmad v PP [2011] 9 CLJ 159 and Lee Choon Peng v PP [2015] 1 LNS 108. [64] This court is of the view that the learned SCJ has not erred on principle in passing the sentence and neither were the sentences excessive. The appeals against the sentences are hereby dismissed. The sentences passed by the learned SCJ on the appellant in respect to both charges are affirmed. Dated: 21 April 2020 (SHAHNAZ BINTI SULAIMAN) Judicial Commissioner High Court of Malaya, Johor Bahru Counsel:- For the Appellant: M/s Freda Sabapathy & Co Unit UG-02, Ground Floor, Menara TJB, No 9, Jalan Syed Mohd Mufti, 80000 Johor Bahru Johor For the Respondent: Timbalan Pendakwa Raya, Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Ja’afar Muhammad, Kota Iskandar, Nusajaya Johor. 26