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Pendakwa Raya v Phoon Wai Yee &Amp; 1 Lagi [2009] MYMHC 25 (7 April 2009)

DI DALAM MAHKAMAH TINGGI DI JOHOR BAHRU

DI DALAM NEGERI JOHOR DARUL TAKZIM

PERBICARAAN JENAYAH NO. (MT-1) 45-6-2006

PENDAKWA RAYA

LAWAN

1. PHOON WAI YEE

2. YANG KOH SENG DI DALAM MAHKAMAH TERBUKA

DI HADAPAN Y.A. TUAN VERNON ONG LAM KIAT

PESURUHJAYA KEHAKIMAN

GROUNDS OF JUDGMENT

The accused persons are charged with an offence of trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 (`DDA') for trafficking in 1,640.62 gram 3,4 ­

Methylenedioxymethamphetamine (MDMA). The charge reads as follows: Bahawa kamu dengan niat bersama, pada 8 Disember 2004, jam lebih kurang 5:30 petang, di tempat letak kereta, Hotel Merlin Inn, North Wing, Jalan Tenteram, di dalam daerah Johor Bahru, di dalam negeri Johor Darul Ta'zim, telah didapati mengedar dadah berbahaya sejumlah 1,640.62 gram 3,4 -

Page 2 of 32

Methylenedioxymethamphetamine (MDMA), oleh yang demikian 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 dan dibaca bersama seksyen s 34 Kanun Keseksaan.

Prosecution's case

On the night of 6.12.2004 DSP Giam Kar Hoon (PW7) received information from his `informer' of a proposed sale of ecstasy pills. PW7 then organised a raiding party. At a briefing on 7.12.2004 PW7 instructed ASP Khoo Say Ping (PW8) to go undercover as a buyer of the ecstasy pills. PW7 instructed ASP Lee Choon Peng (PW12) to form an ambush and arrest party. At about 8:00 p.m. PW7 and PW8 met the informer at the lobby of Hotel Merlin Inn. PW7 introduced the informer known as Jacky to PW8. The informer said that a supplier by the name of Small Boy wanted to supply ecstasy pills. The informer also said that he was waiting for a call from the supplier to meet the buyer. Later that night the informer received a telephone call from Small Boy. According to the informer the supplier wanted him to bring the buyer to a restaurant in Stulang close to Hotel Eden. At about 10:00 p.m. PW8 and the informer went to a Chinese restaurant in front of Hotel Eden to meet the supplier of the ecstasy pills called `Small Boy' (identified as the 2nd

accused person). When they got

there the informer made a telephone call. The informer then informed PW8 that the supplier will be coming in 20 to 30 minutes. Meanwhile, PW7 was inside another nearby restaurant. About 20 minutes later a Chinese man (identified as the 2nd

accused) appeared. The informer introduced the 2nd accused as the supplier. The 2nd

accused then introduced himself as Small

Boy to PW8. The 2nd

accused asked PW8 how many pills PW8 wanted to

buy. PW8 said that he wanted to buy RM200,000.00 worth. The 2nd accused said that could be arranged. He said that there were two types of pills ­ cop burung and cop itik. The total will be notified because the prices for cop burung and cop itik were different. The 2nd accused also said that

the transaction could only take place the following day. After giving the 2nd accused a lift to Plaza Pelangi, PW8 and the informer returned to Hotel Merlin Inn and met PW7. After briefing PW7 on what transpired PW7 instructed PW8 to book 2 rooms in the hotel for the operation. PW7 also instructed the informer to return to the hotel the next day. Page 3 of 32

On 8.12.2004 at about 9:30 a.m. the informer came into room 613 to see PW8. At 10:00 a.m. PW8 went into room 612 without the informer. In room 612 PW7 gave a briefing to PW8, ASP Teoh Paik Leng, ASP Charun (PW11) and PW12. PW8 was instructed to meet the 2nd accused at the

hotel lobby. PW12 was to form a team outside Hotel Merlin Inn and Hotel Blue Wave. ASP Charun was to arrange for a car to be used by the informer. PW7 handed over RM200,000.00 cash to PW8. PW7 asked PW8 to try to have the pills delivered to the room failing which the drugs were to be placed in a car which will be provided. PW8 then left room 612 and returned to room 613. At about 12:30 p.m. PW11 informed PW7 that the car for the operation was parked along the road near Hotel Blue Wave. PW7 then telephoned the informer and asked him to collect the keys from PW11 and to bring the car to the basement car park in Hotel Blue Wave. PW7 also received information from PW12 that his team was ready and on standby. PW7 informed PW12 about the car to be used in the operation. At about 3:30 p.m. the 2nd

accused telephoned PW8 asking where he

was. PW8 told the 2nd

accused that he was in Hotel Merlin Inn and the 2nd accused said that he will be there in half an hour. PW8 then called PW7 and informed that the 2nd

accused was on his way. PW7 then informed

PW12 via walkie talkie. At about 3:50 p.m. PW8 and the informer went down to the hotel lobby. The 2nd

accused arrived at about 4:00 p.m. in a

taxi and came over to the table where PW8 was sitting. They talked for about 15 minutes after which PW8 invited the 2nd

accused to his room.

Inside the room the 2nd

accused asked to see the money. PW8 showed the

money to him and invited him to count. The 2nd

accused said that it was

not necessary and that he could supply 17,000 pills of cop burung and cop itik. PW8 asked for the pills to be delivered to room 613. The 2nd accused

said that his friend bringing the pills will not go to the room. PW8 then suggested that the pills be placed in a car parked nearby. The 2nd accused

agreed and PW8 asked the informer to arrange for the car. The informer left the room. The 2nd

accused then asked PW8 about the type and colour

of the car. PW8 said that he did not know and he would telephone Jacky. PW8 then telephoned PW7 pretending to speak to Jacky asking about the car. PW7 said that he would call back with the information. About 2 minutes later PW7 telephoned PW8 and informed that the car was a blue Proton Saga no. JCN 5262. PW8 then informed the 2nd accused. The 2nd

accused asked the car to be parked in the basement of Hotel Merlin Inn North Wing. PW8 called PW7 to inform accordingly. A while later the 2nd Page 4 of 32

accused received a telephone call. The 2nd

accused informed PW8 that his

friend had arrived at the basement but did not see the blue Proton Saga. PW8 then called PW7 asking about the car. PW7 said that he would check and call back. After 1 to 2 minutes PW7 called back saying that the car was at Hotel Blue Wave. PW8 then asked the 2nd

accused if the

transaction could take place at Hotel Blue Wave. He replied in the negative and asked the car to go to the basement of Hotel Merlin Inn North Wing. PW8 then phoned PW7 and asked for the car to driven to the basement. At about 5:10 p.m. the 2nd

accused said that he would go down to check

that the transaction went smoothly. PW8 asked the 2nd accused to go

down first and he would join up in 5 minutes. After the 2nd accused left the

room PW8 called PW7 to inform that the 2nd

accused had gone down to the

lobby. PW8 then went down to the lobby. PW8 saw the 2nd accused sitting

alone. PW8 asked the 2nd

accused if the transaction had been settled.

The 2nd

accused said his friend had already left the hotel premises but was asked to return to the basement of the hotel. A few minutes later the 2nd accused received a telephone call and he informed PW8 that his friend had arrived and that he would go to make sure that everything was alright. The 2nd

accused then left the lobby. PW8 telephoned PW7 to inform that the 2nd

accused was on his way to the basement. A few minutes later PW7 telephoned PW8 and said that the 2nd

accused had been arrested and he

could stand down.

During the intervening period, at about 4:45 p.m., PW7 testified that he received information via walkie talkie that a black Honda Jazz no. JHL 686 was in the vicinity of Hotel Merlin Inn. There was only a Chinese man inside the car. PW7 also called and informed the informer to bring the car to the Hotel Merlin Inn North Wing car park. He also asked the informer to lock the car but to leave the boot unlocked and to hand over the car keys to ASP Charun after that. At about 5:10 p.m. PW7 received a call from PW8 informing that Small Boy had gone down to the lobby. PW7 also informed PW12 about the Honda Jazz which was last seen parked along the road nearby the entrance of Hotel Merlin Inn North Wing. There was another car with 3 Chinese men inside parked behind the Honda Jazz. PW7 then received information that Small Boy was walking towards the Honda Jazz. Small Boy then opened the boot of the Honda Jazz and took out a brown bag. Small Boy was then seen walking with the said bag towards Hotel Merlin Inn North Wing. At this PW7 ordered PW12 to apprehend and arrest the 2nd

accused and all the Chinese men inside a car parked behind the Page 5 of 32

Honda Jazz. At about 5:35 p.m. PW7 was informed via walkie talkie that all the Chinese men had been arrested. Meanwhile PW7 received the car keys from ASP Charun. When PW7 got to Hotel Merlin Inn North Wing he saw 3 Chinese men in handcuffs. At the basement car park PW7 saw 2 Chinese men who were arrested and nearby the Proton Saga no. JCN

5262. PW7 identified the 2 Chinese men as the 1st accused and 2nd

accused. PW7 handed the car keys to PW12. Before PW12 opened the boot he administered the caution to both accused persons. PW12 opened the boot and found 2 bags ­ a brown paper bag (P11) and a green canvas bag (P13). Inside the said bags were found many newspaper wrapped packages containing transparent plastic packets. On examination PW12 found that the plastic packets contained many pills suspected to be ecstasy pills.

According to PW7's testimony in court, on 8.12.2004 he attended a briefing at Hotel Merlin Inn together with ASP Teoh Pek Leng, PW8, ASP Charun and PW7. He was instructed by PW7 to make preparations for the apprehension of the suspects involved. At about 12:30 p.m. PW12 gave a briefing to his team members. They were to take up positions around Hotel Merlin Inn. By 3:00 p.m. PW12's teams had taken up their respective positions. PW12 was at the road leading to the car park of Hotel Grand Bluewave. At about 4:00 p.m. PW7 informed PW12 that a Chinese man had arrived at Hotel Merlin in a taxi to meet PW8. At about 5:00 p.m. PW7 informed PW12 that the things would be placed inside a Proton Saga no. JCN 5262 driven by the informer. At about 5:15 p.m. a black Honda Jazz no. JHL 686 stopped in front of Hotel Merlin Inn. A Chinese man exited the car and went into Hotel Merlin Inn. A little while later a Chinese man came out of Hotel Merlin Inn walking towards the Honda Jazz. The Chinese man opened the boot and took out a bag and walked towards Hotel Merlin Inn North Wing. PW7 then ordered PW12 to arrest the Chinese man with the bag. He was also ordered to arrest all the Chinese men in a car parked behind the Honda Jazz. When PW12 and his team arrived at the Hotel Merlin Inn car park to arrest the Chinese man they saw him walking out of the car park and arrested him. PW12 then asked the Chinese man (identified as the 2nd accused) if he put anything in car JCN 5262 in the car park. The 2nd accused answered in the affirmative. By that time PW12 was informed that the driver of the Honda Jazz had also been arrested and he instructed the other suspect (identified as the 1st accused) and the

Honda Jazz to be brought to the car park of Hotel Merlin Inn North Wing. Page 6 of 32

PW12 said that he administered the caution to the two accused persons. PW7 then gave PW12 a car key to JCN 5262 for the examination. PW7 also informed PW12 that when the said car was parked in the car park the boot was not locked. PW12 opened the boot of the said car and found inside a big bag (P11) inside of which was a green bag (P13). PW12 took out the green bag and placed it next to the big bag. Inside the big bag PW12 found 10 packets (P11 A ­ J) containing white pills suspected to be drugs. Inside the green bag PW12 also found 7 packets (P13A ­ G) containing red pills. PW12 then examined the rest of the boot but did not find anything. PW12 then closed the boot and examined the rest of the car and did not find anything illicit. PW12 also examined the Honda Jazz but did not find anything illicit. PW12 drew up a search list (P22) of the items seized at the operation. Both accused persons also signed on P22. PW12 then handed over all the exhibits and the cars to Chief Inspector Mohd Nasir the investigating officer.

Chief Inspector Mohd Nasir bin Jappiry (PW13) testified that on 9.12.2004 he received the exhibits and a search list (P22) from PW12. PW13 issued a Borang Serah Menyerah (P23) in acknowledgement of the said exhibits. PW13 said that he kept the exhibits in a metal cabinet to which he had the only access. On 17.12.2004 PW13 handed over the exhibits to the chemist En. Muhammad Yazid. In acknowledgement of the exhibits En. Muhammad Yazid issued him a receipt (P10). On 25.2.2005 PW13 received the exhibits and a chemist report (P15) from En. Muhammad Yazid.

En. Muhammad Yazid bin Ibrahim (PW4) testified that on 17.12.200 4 he received the exhibits from PW13 for which a receipt (P10) was issued. PW4 said that he conducted two tests, namely (i) Gas Chromatography Mass Spectrophotometry test (GCMS) and (ii) Gas Chromotography test (GC) on the substances contained in exhibits P11(a ­ j) and P13 (a ­ g). He concluded that the net weight of the substances in P11 contained 943.03 gram 3,4 - Methylenedioxymethamphetamine (MDMA). In P13 he concluded that the net weight of the substances were 697.59 gram 3,4 - Methylenedioxymethamphetamine (MDMA). 3,4 -

Methylenedioxymethamphetamine (MDMA) is listed in the First Schedule of the DDA.

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Learned deputy submitted that the drugs were in the possession of both accused persons. PW7 testified that he was informed over the walkie talkie that Small Boy approached the Honda Jazz and after taking a bag from the car walked towards Hotel Merlin Inn North Wing. PW7's evidence is supported by PW12 who testified that the 2nd

accused had taken a bag

from the said car and walked towards Hotel Merlin Inn North Wing. The owner of the Honda Jazz (PW6) had testified that he loaned the car to the 1st

accused for about 1 week prior to the date of arrest. This shows that at the material time the bag containing the drugs in the car was in the possession of the 1st

accused. The evidence of PW7 and PW12 also show

that the 2nd

accused person had possession of the bag as he took the bag from the car. The conduct of the 2nd

accused person shows that he knew

that the bag was in the car. Further the 2nd

accused took the bag with the

intention of putting it in the boot of the Proton Iswara JCN 5262. This was in furtherance to the agreement between the 2nd accused and PW8. In the premises learned deputy submitted that there is evidence of physical and mens rea possession of the drugs by both accused persons (Chan Pean Leon v PP [1956] 22 MLJ 237; PP v Abd. Rahman Akif [2007] 4 CLJ 337; PPv Govindan Kurup & Ors [1947] 1 MLJ 150).

Learned deputy also submitted that the drugs in question have been examined by the chemist and found to be 1,640.62 gram 3,4 - Methylenedioxymethamphetamine (MDMA) which is listed in the First Schedule of the DDA. The court is entitled to accept the evidence of the chemist on its face value without the necessity for him to go into details of what he did in the laboratory step by step unless it is inherently incredible or the defence calls evidence in rebuttal by another expert (Balachandran v PP [2005] 1 CLJ 85). Learned deputy further submitted that as the amount of the drugs is in excess of the proscribed weight of 50 grams, the presumption of trafficking under s 37(da) DDA is invoked against both the 1st

and 2nd

accused persons.

Defence's submission

Learned counsel for the 1st

accused raised the following issues.

Firstly, the 1st

accused person's name was not mentioned during the discussion at the Chinese restaurant in Stulang. This shows that the 1st accused person had no role in the said discussion. Further, the 1st Page 8 of 32

accused was only identified by PW12 as the person driving the Honda Jazz. The person who opened the boot of the Honda Jazz was the 2nd accused. There is nothing to show that when the 1st accused entered Hotel

Merlin Inn that he knew about the drugs. There is no evidence that the drugs were concealed or hidden in the Honda Jazz linking the 1st accused

with knowledge of the drugs. Accordingly, it was contended that there is no evidence to show that the 1st

accused had control, custody or knowledge of

the drugs found in the said car (PP v The Eng Wah [1999] 8 CLJ 451; Syed Ali bin Syed Abdul Hamid & Anor v PP [1982] 1 MLJ 132; Choo Yoke Choy v PP [1992] 2 MLJ 632). Secondly, PW7 had testified that when the 1st accused was arrested he did not try to run away. This show that the 1st accused did not know about the drugs in the Honda Jazz (Abdullah Zawawi bin Yusoff v PP [1993] 3 MLJ 1).

Learned counsel for the 1st

accused further submitted on the question

of whether one or two bags were taken out from the Honda Jazz. According to PW7 only one bag was taken out. However, PW7 found two bags in the Proton Saga JCN 5262 in the basement of the Hotel Merlin Inn North Wing. Due to the doubt as to the origin of the second bag there is a gap in the prosecution case (Lee Chee Meng v PP [1992] 1 MLJ 322; Yusoff Bin Kassim v PP [1992] 2 MLJ 183).

It was also contended that the exhibits have been tampered with. According to PW12 there were 3,000 pills in the bag marked B. However, the investigating officer PW13 found 7,000 pills. The additional 4,000 pills are not accounted for. Further, PW13 only handed over the exhibits to the chemist on 17.12.2004, after a delay of 9 days (PP v Teh Eng Wah, supra). Learned counsel also submitted that the investigation conducted by PW13 was incomplete. Firstly, there is the discrepancy of the pills as aforesaid. Secondly, PW13 showed the photographer the place where the incident occurred. Thirdly, the delay in sending the exhibits to the chemistry department. And finally, the tampering of the exhibits due to the mixing with exhibits of other cases in the metal cabinet (Muhammad bin Hassan v PP [1988] 2 MLJ 273).

Page 9 of 32

Learned counsel for the 2nd

accused submitted on 2 grounds, namely,

(1) that there are serious doubts as to the identity of the drug exhibits; and (2) that it was fatal for the prosecution when it failed to call or produce the `informer' for cross-examination. On the first ground, it was submitted that there is a discrepancy as to the number of pills seized between the evidence of PW12 and PW13. PW12 the raiding officer testified that he counted the pills and that (i) the total number of the pills in the bag marked "A" (from packets A1 to A10) were 9280 pills, and (ii) the total number of pills in the bag marked "B" (from packets B1 to B7) were 3,000 pills. According to PW13 the investigating officer the total number of pills from bags marked "A" and "B" were 9280 pills and 7,000 pills respectively. The number of pills increased by 4,000 pills by the time the exhibits reached PW13. No explanation was offered by the prosecution as to this material discrepancy. Only one inference can be drawn, and that is that the drug exhibits have been tampered with to the prejudice of the accused persons. In addition, PW13 also said that the number of pills in A3 was 990 pills. However, according to the chemist PW4, the number of pills in A3 was 995. This also means that by the time the drugs were sent to the chemist the number of pills in bag "A" had increased by 5 pills. Again the prosecution failed to give any explanation on this discrepancy. The drugs exhibits must have been tampered with. It is therefore incorrect for PW12 and PW13 to say that the total number of pills seized from bag "A" were 9,280pills. On the second ground, both PW12 and PW13 testified that the gross weight of the drugs was 2,200 grams. However, the chemist testified that the nett weight of the pills was 2,206.54 grams. This means that the nett weight of the pills is more than the gross weight by 6.54 grams. This discrepancy was not explained by the prosecution. The cumulative effects of these discrepancies in the number of pills and the weight have destroyed the prosecution's case. It is not proven that the drugs produced in court were the actual ones seized and sent to the chemist. There ought to be no discrepancies or doubts as to the identity of the drugs at least up to the point they reach the chemist (Gunalan Ramachandran & Ors v PP [2004] 4 CLJ 551).

The identity issue is fatal for the prosecution. There is no evidence by PW12 as to what he did with the exhibits after he had seized them. PW12 only said that the drugs were in the boot of JCN 5262 when it was driven to the police station. He made marking and then they were handed over to PW13. The exhibits were seized at about 5:30 p.m. on 8.12.2004 Page 10 of 32

but they were handed over to PW13 on 12:30 a.m. on 9.12.2004. PW12 had custody of the exhibits for about 7 hours. What did PW12 do with the exhibits during that period? PW12 failed to testify that at all material times the drugs exhibits were in his custody. He also failed to testify as to how he kept the exhibits before they were handed over to PW13. There is no evidence as to whether the drugs exhibits were kept under lock and key. In the premises, looking at the discrepancies, the exhibits must have been tampered with. The 17 packets from bags "A" and "B" were not sealed and could be opened very easily. A vital link in the prosecution case seems to be missing. The facts in Teoh Hoe Chye v PP [1987] 1 MLJ 220 are similar in that it involved an agent provocateur and evidence was led to show that there were negotiations for the purchase of the drugs (Yeong Kia Heng v PP [1992] 1 CLJ 364; PP v Lee Hock Lai [2004] 1 CLJ 57; Lee Chee Meng v PP [1992] 1 MLJ 322; PP v Saas bin Mat Takraw & Anor [1998] 3 MLJ 784; Shamsudin bin Hassan v PP [1991] 3 MLJ 314; Pavone v PP [1986] 1 MLJ 423).

Learned counsel for the 2nd

accused person also contended that the

informer is not a mere provider of information. He had immersed himself in the operation to arrest the 2nd

accused. The roles played by the informer

began on the night of 6.12.2004 when he gave the information to PW7. He then met PW7 and PW8 at Hotel Merlin Inn on 7.12.2004. He also drove PW8 in his car to the restaurant to meet the supplier. He was present at the meeting with PW8 and the supplier. The informer then went back to the hotel where together with PW7 and PW8 they discussed on the next course of action. Learned counsel submitted that when the informer took part in the discussion of the operation to lay the trap, he had crossed the line and assumed the mantle of that of an agent provocateur. PW7 also testified that on 8.12.2004 he instructed PW11 to arrange for a car for the informer to use. Subsequently PW7 telephoned the informer and asked him to get the car keys to JCN 5262 from PW11. PW7 also telephoned the informer to bring JCN 5262 to the basement car park of Hotel Merlin Inn North Wing. He also instructed the informer to lock the car except the boot and to return the keys to PW11. PW8 testified to the roles played by the informer. PW8 said that he went to the restaurant with the informer. There the informer made a phone call to the 2nd

accused. The informer also gave a lift to the

2nd

accused to Plaza Pelangi. PW7 instructed the informer to come to Hotel Merlin Inn the next day, 8.12.2004. The informer came to PW8's room no. 613 at 9:30 a.m. PW8 then went to PW7's room no. 612. When Page 11 of 32

PW8 returned from room no. 612 the informer was still in his room. At about 3:50 p.m. PW8 and the informer came down from the room to the hotel lobby. When the 2nd

accused came all 3 of them (including the

informer) were talking. The informer was in the room when PW8 showed the 2nd

accused the money and when PW8 asked the informer to arrange a car for the transaction. The informer then left the room. The informer later called back PW8 to inform that the car would be parked at the basement of Hotel Merlin Inn North Wing. It was submitted that the informer's role is restricted only to that of giving information. He was very much involved in the operation. Therefore the informer belongs to the class of witnesses as `essential to the unfolding of the narratives on which the prosecution is based" (as described in Senevitratne v R [1936] 3 All ER 36) or is an `important and material witness to the case (Munusamy v PP [1987] 1 MLJ 492). As an agent provocateur who has not been called, there are 4 consequences. Firstly, the prosecution's failure to produce the informer is fatal to the prosecution case. The informer was not offered to the defence. There was no evidence to show that the informer cannot be traced (see Ti Chuee Hiang v PP [1995] 2 MLJ 433 FC; Chan Chor Shuh v PP [2003] 2 MLJ 26 CA). Secondly, the adverse inference under paragraph (g) of s 114 Evidence Act should be invoked against the prosecution (PP v Rashid bin Ismail [2001] 1 AMR 1149; PP v Mohd Fahmi bin Hamzah [2002] 6 MLJ 340). Thirdly, the 2nd

accused's defence has been seriously prejudiced or disadvantaged. If the informer was produced, the following aspects can be confirmed by him, namely (i) that the informer is Jackie and a gambler, (ii) that the informer was a distributor of pirate and pornographic VCD and DVD, (iii) that the informer owed the 2nd

accused RM12,000.00, (iv) that on

7.12.2004 the 2nd

accused called the informer and threatened to beat him up, and (v) that the actual trafficker is one Michael who was also present at the restaurant (Md Desa b Hashim v PP [1995] 3 MLJ 350; R v Russell- Jones [1995] 3 All ER 239). Fourthly, there is a gap in the prosecution case without the informer's evidence. There is no evidence of trafficking and as such it cannot be said that the prosecution has made a prima facie case as a vital link in the prosecution case is missing (Abdullah Zawawi v PP [1985] 2 MLJ 16; Looi Kow Chai & Anor v PP [2003] 2 AMR 89). The law

Page 12 of 32

In a charge under s 39B(1)(a) DDA to which s 2 also applied, the onus lies upon the prosecution to prove the following ingredients of the offence viz:

(1) that the accused had possession of the dangerous drugs in question; (2) that the accused did traffic in the dangerous drugs in question. In proving the said ingredients the prosecution may elect to invoke the presumption of possession under s 37(d) or the presumption of trafficking under s 37(da). If the prosecution elects not to invoke the presumption of possession under s 37(d), then it is incumbent upon the prosecution to adduce evidence so as to establish that the accused had possession of the dangerous drugs independent of the statutory presumption. If, on the other hand, the prosecution elects not to invoke the presumption of trafficking under s 37(da) then it is incumbent upon the prosecution to adduce evidence that the accused was trafficking in the dangerous drugs within the meaning as defined in s 2 DDA. Possession

What constitutes `possession' under s 37 is a question of law (see PP v. Abdul Rahman Akif [2007] 4 CLJ at p. 349). In Yee Ya Mang v. Public Prosecutor [1972] 1 MLJ 120 the appellant was charged under s 9(a) of the Arms Act, 1960 for having in his possession a pistol and three rounds of ammunition, without an arms licence or an arms permit. The pistol and the three rounds of ammunition were not found in the house occupied by the appellant but at a spot in a rubber estate pointed out by the appellant. In the course of police investigations the appellant said that he had a revolver. Subsequently, he took the police officer to the spot where the revolver was found. The spot pointed out by the appellant was a pit, covered by pieces of wood, underneath which was found a plastic bag. Inside the plastic bag was a stocking containing the subject matter of the charge. About an hour earlier the appellant had taken the police to a different spot in another rubber estate from which a toy pistol was recovered. Sharma J described `possession' in the following manner:

The word `possession' implies a physical capacity to deal with the thing as one likes to the exclusion of everyone and a determination to exercise that physical power on one's own behalf. It implies dominion and consciousness in the mind of the person having `possession' that he not only has such Page 13 of 32

dominion but also that he can exercise it. In the present case if, for example, the accused had gone alone to the spot in question and took out the loaded pistol from the place of concealment, the loaded pistol could be said to be in the possession of the accused as it lends support to the conclusion that it was within his exclusive knowledge as to where this pistol was kept concealed in the rubber estate. There may, however, be cases where a court is not justified in presuming possession of the person who had mere knowledge of the articles concealed. A good deal depends upon whether the production was accompanied by information given by the accused in custody as would be admissible under section 27 of the Evidence Ordinance. Such information can be relied on by the prosecution as incriminating evidence against the accused along with the production or discovery of the articles in question but the mere production of such articles by itself would not necessarily prove his possession. It would at the most show that he had knowledge where the articles were kept or concealed. Thus, 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, because unless he had possession he would not have kept them at that place. When, however, the accused without stating that he had concealed those articles merely produces them from a place to which other people could have access, it would not be sufficient to establish his possession even though the articles may be found carefully concealed and hidden because that is quite consistent with any person having done so and the accused might merely have knowledge of it. In the absence of any incriminating statement made by the accused leading to the discovery of the articles, their production alone from another man's land cannot be sufficient to establish the accused's possession. It may at the most show his knowledge that the articles were concealed there.

This principle was discussed at length by Lim Beng Choon J in the case of Public Prosecutor v. Badrulsham Bin Baharom [1988] 2 MLJ 585 at p 588: I believe it is well settled at least by our courts that to establish possession by an accused person of any dangerous drugs or to impute to him possession of the said drugs it must first be shown that he had knowledge of the drugs which were found to be in his possession. The earliest authority, which I could find, that expounded this principle is the case of Chiah Tian v. Rex where the then Chief Justice of Singapore said at p. 106: "In my opinion, possession to be an offence must be possession under such circumstances that a court is justified in finding that the accused (or the servant in cases of constructive possession) was conscious of the possession. As Pollock C. B. put it in The Queen v. Woodrow 16 Page 14 of 32

L.J.M.C. 122, `a man can hardly be said to be in possession of anything without knowing it' and I think that a person is not guilty of the offence of possession if he is not aware of the possession." (Emphasis supplied)

This principle was expounded with great clarity in the case of Leow Ngee Lim v. Regina at p. 31:

"In some of the cases it has been said that without knowledge there can be no possession. In others, `in possession' has been read as `knowingly in possession' by application of the doctrine of mens rea. In some instances either view leads to the same result but not in all. The dicta does not make what degree of knowledge is meant. Also in some of the statues, `possession' and `knowledge' have been treated separately and much confusion has resulted.

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. This is recognised in the present Drugs Ordinance which provides, by the presumption already cited, that if a man has custody or control of a drug the onus of proving, first that he did not have possession, and secondly that he did not know the nature of the drug, shall be shifted to him."

(emphasis supplied)

Then in Saad bin Ibrahim v. Public Prosecutor Yong J was quite emphatic as to the requirement of the element of knowledge on the part of the possessor before he could be criminally incriminated with possession of a prohibited article. Thus his Lordship said at p. 159:

"In my opinion mere possession is one thing and possession with mens rea is another. Possession which incriminates must have certain characteristics. The possessor must be aware of his possession, must know the nature of the thing possessed and must have the power of disposal over it. Without these characteristics possession raises no presumption of mens rea. Without mens rea possession cannot be criminal except in certain cases created by statute, which is not applicable in this case."

The principle of possession with mens rea has been steadfastly adhered to by our courts in construing the word possession as used in section 37(d) of the Act. Although there can hardly be any dispute that the existence of this element of knowledge is necessary to establish possession the difficulties lie in applying this principle to the facts of each individual case bearing in mind that notwithstanding the shifting of the burden of rebutting possession of the dangerous drugs to the accused upon the successful invocation of the Page 15 of 32

presumption under s 37(d) of the Act, all that is required of the accused to rebut the presumption is for him to show upon a balance of probabilities that he was not aware of the dangerous drugs which were said to be under his possession. Knowledge being an element of the state of mind of a person, the obvious question is: how is one to prove the element of knowledge in order to establish possession. However that may be, certain modes of proof are acceptable as sufficient to distinguish between a genuine and a feigned defence. Those modes of proof are acceptable because unless a defendant confesses that he has the necessary knowledge which is an element of his state of mind such element must be judged from his outward acts or omissions.

As mere custody and control is insufficient to establish possession for the purpose of the DDA, knowledge of such drug by the accused must be established. However, whether or not in a given case a person can be said be in possession of something is a question of fact. In Chan Pean Leon v. Public Prosecutor [1956] 22 MLJ 237 Thomson J dealt with the issue of possession under the Common Gaming Houses Ordinance 1953 and at p. 239 he observed:

"Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th

Edition, page 304):

A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do in case of need.

To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but is 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 Page 16 of 32

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 exhaustively and it is impossible to lay down any general rule on this point. But there must 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.

And further down on the same page he added:

Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. That knowledge cannot be proved by direct evidence was also reiterated in the judgment of the Privy Council in Ong Ah Chuan v. Public Prosecutor [1981] 1 MLJ 64 appearing at page 69:

Proof of the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with which criminal courts are very familiar. Generally, in the absence of an express admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus, in the case of an accused caught in the act of conveying from one place to another controlled drugs in a quantity larger than is likely to be needed for his own consumption the inference that he was trafficking in them would, in the absence of any plausible explanation by him, be irresistible ­ even if there were no statutory presumption such as contained in section 15 of the Drugs Act. (Emphasis added)

And further down in the same page:

Whether the quantities involved is large or small, however, the inference is always rebuttable. The accused himself best knows why he was conveying the drugs from one place to another and, if he can satisfy the court upon the balance of probabilities only, that they were destined for his own consumption he is entitled to be acquitted of the offence of trafficking under section 3. The question of knowledge necessary to establish possession was enunciated by the Federal Court in PP v. Abdul Rahman Akif [2007] 4 CLJ Page 17 of 32

337 where three packages containing cannabis were recovered from under the driver's and the front passenger's seats in a car driven by the accused. At p 349 Arifin Zakaria FCJ(now CJM) speaking for the Federal Court said: Therefore, the presence of the 3 packages in the car without a plausible explanation from the respondent could give rise to a strong inference that he had knowledge that the packages contained drug or things of similar nature. (see also Lim Beng Soon v. Public Prosecutor [2000] 4 SLR 589) We further agree with the prosecution that the fact that the drug was found wrapped in newspaper is no ground for saying that an inference could not be drawn against the respondent that he had the requisite knowledge. In this regard it is pertinent to refer to the observation of the Singapore Court of Appeal in Zulfikar bin Mustaffah v. PP [2001] 1 SLR 633, at p. 693:

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] 1 AC 256; Tan Ah Tee & Anor v. PP [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 peddlars 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 Yong Pung How J 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. (emphasis added)

In Ramis a/l Muinandy v.Public Prosecutor [2001] 3 SLR 534, the Singapore Court of Appeal again propounded on the question of knowledge necessary to establish possession and at p. 541 states:

Knowledge of drugs

The starting point in the consideration of this issue was that we had already concluded that the drugs was already on Ramis's motorcycles when he entered the vicinity and that he had physical control of the Page 18 of 32

drugs. In the absence of any reasonable explanation by Ramis, these facts were sufficient to lead to a strong inference that Ramis knew that the bag found on his motorcycle contained drugs.

In Tan Ah Tee (supra), Wee Chong Jin CJ, delivering the judgment of the court said ([1978-1979] SLR 211 at 2170218; [1980] 1 MLJ 49 at pg. 52): Even if there is no statutory presumption available to the prosecution, once the prosecution had proved the fact of physical control or possession of the plastic bag and the circumstances in which this was acquired by and remained with the second appellant, the trial judges would be justified in finding that she had possession of the contents of the plastic bag within the meaning of the Act unless she gave an explanation of the physical fact which the trial judges accepted or which raised a doubt in their minds that she had possession of the contents within the meaning of the Act. The issue of knowledge necessary to establish possession came to be considered by the English House of Lords in the case of Warner v. Metropolitan Police Commissioner [1968] 2 All ER 356, which was considered and relied upon by the Singapore Court of Appeal in Zulfikar bin Mustaffah v. PP (supra). In Warner the following question was posed to their Lordships: Whether for the purpose of section 1 of the Drugs (Prevention of Misuse) Act, 1964, a defendant is deemed to be in possession of a prohibited substance when to his knowledge he is in physical possession of the substance but is unaware of its true nature.

At p. 367 Lord Reid addressed the issue as follows: The object of this legislation is to penalise possession of certain drugs. So if mens rea has not been excluded what would be required would be the knowledge of the accused that he had prohibited drugs in his possession. It would be no defence, though it would be a mitigation, that he did not intend that they should be used improperly. And it is commonplace that, if the accused had a suspicion but deliberately shut his eyes, the court or jury is well entitled to hold him guilty. Further it would be pedantic to hold that it must be shown that the accused knew precisely which drug he had in his possession. Ignorance of the law is no defence and in fact virtually everyone knows that there are prohibited drugs. So it would be quite sufficient to prove facts from which it could properly be inferred that the accused knew that he had a prohibited drug in his possession. That would not lead to an unreasonable result.

In the same case Lord Morris answered the question in the following manner: If there is assent to the control of a thing, either after having the means of knowledge of what the thing is or contains or being unmindful whether there are means of knowledge or not, then ordinarily there will be possession. If there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains then, ordinarily, I would suppose that there would be no possession. If, however, someone deliberately assumes control of some package or container, then I would think that he is Page 19 of 32

in possession of it. If he deliberately so assumes control knowing it has contents, he would also be in possession of the contents. I cannot think that it would be rational to hold that someone who is in possession of a box which he knows to have things in it is in possession of the box but not in possession of the things in it. If he had been misinformed or misled as to the nature of the contents, or if he had made a wrong surmise as to them, it seems to me that he would nevertheless be in possession of them. More recently the Federal Court in the case of PR v Denish A/L Madhavan (Rayuan Jenayah No. 05-72-2005(J)) considered the propriety of treating possession of an article in criminal law as exclusive possession. It is instructive to reproduce what Abdul Aziz Bin Mohamad FCJ said at paragraph nos. 16 ­ 19:

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 must 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 necessary to constitute possession. As Taylor J said in Leow Nghee Lim v Reg. [1965] 22 MLJ 28: " ... 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 Page 20 of 32

18. Thomson J, in Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237, said that "possession" for the purposes of criminal law involves possession itself ­ which some authorities term "custody" or "control" ­ knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th Edition, 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 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. Burden and Standard of Proof at Close of Prosecution's Case At the close of the prosecution's case, it is the duty of the court to consider whether the prosecution has made out a prima facie case against the accused. In this respect, Section 180 of the Criminal Procedure Code (`CPC') provides as follows:

Section 180

(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused.

(2) If the Court finds that a prima facie case has not been made out against the accused, the Court shall record an order of acquittal.

(3) If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.

What is the standard of proof on the prosecution at the close of its case? Subsection (1) makes it clear that the standard of proof is on the prosecution to make out a prima facie case. Subsection (2) provides that the court shall record an order of acquittal if a prima facie case has not Page 21 of 32

been made out. On the other hand, if a prima facie case has been made out subsection (3) provides that the accused shall be called upon to enter his defence. Thus, whether or not the accused is acquitted or called upon to enter on his defence at the close of the prosecution case turns on the meaning of the phrase `prima facie case'.

In Balachandran v. PP [2005] 1 CLJ 85 the Federal Court when called upon to consider the standard of proof on the prosecution at the close of the case for the prosecution has this to say at p 99: A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal. The phrase "prima facie case" is defined in similar terms in Mozley and Whitley's Law Dictionary, 11th

edn as:

A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side. 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 hand 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. And continuing at p. 100,

The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case of the prosecution. If there is any such doubt there can be no prima facie case.

Page 22 of 32

In order to determine whether the elements of the offence have been established, the Court must undertake a positive evaluation of the credibility and reliability of all the evidence adduced. In this regard the court must undertake a maximum evaluation of the prosecution evidence. In PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457 the Federal Court has this to say at p 465:

After the amendments to ss 173(f) and 180 of the CPC, the statutory test has been altered. What is required of a subordinate court and the High Court under the amended section is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter on his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the accused's favour, then it is the duty of the court to draw the inference that is favourable to the accused. See, Tai Chai Keh v PP [1948-49] MLJ Supp 105; PP v Kassim b Soeb [1974] 1 MLJ 230. If the court, upon a maximum evaluation of the evidence placed before it at the close of the prosecution case, comes to the conclusion that a prima facie case has not been made out, it should acquit the accused. If, on the other hand, the court after conducting a maximum evaluation of the evidence comes to the conclusion that a prima facie case has been made out, it must call for the defence. If the accused elects to remain silent, the court must proceed to convict him. It is not open to the court to then re-assess the evidence and to determine whether the prosecution had established its case beyond a reasonable doubt. The absence of any evidence from the accused that casts a reasonable doubt on the prosecution's case renders the prima facie case, one that is established beyond a reasonable doubt. Put shortly, what the trial court is obliged to do under ss 173(f) and 180 of the CPC is to ask itself the question: If the accused elects to remain silent, as he is perfectly entitled to do, am I prepared to convict him on the evidence now before me? See, Dato Mokhtar b Hashim & Anor v PP [1983] 2 MLJ 232. If the answer to that question is in the affirmative, then the defence must be called. And if the accused remains silent, he must be convicted. If the answer is in the negative, then the accused must be acquitted. (Emphasis added) In short the steps that should be taken by this Court at the close of the prosecution's case are as follows:

1. At the close of the prosecution's case, subject the evidence led by the prosecution in its totality to maximum evaluation. Carefully scrutinise the credibility of each of the prosecution's witnesses. Take into Page 23 of 32

account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused;

2. Ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence before me? If the answer to that question is "Yes", then a prima facie case has been made out and the defence should be called. If the answer is "No" then, a prima facie case has not been made out and the accused should be acquitted;

3. After the defence is called, the accused elects to remain silent, then convict;

4. After the defence is called, the accused elects to give evidence, then go through the steps set out in Mat v. PP [1963] 263. Findings of the court at the end of the prosecution case In the circumstances aforesaid did the accused have possession of the dangerous drugs? Before the accused can be criminally incriminated with possession of the dangerous drugs the requirement of knowledge on the part of the accused must be satisfied. The accused must be aware of his possession, must know the nature of the thing possessed and must have the power of disposal over it (Saad Ibrahim v PP, supra). Knowledge is an element of the state of the mind of a person. To establish possession the element of knowledge must be judged from his outward acts or omissions. Knowledge cannot be proved by direct evidence. It can only be inferred from the surrounding circumstances. The purpose with which he did an act is a matter of inference from what he did. In short, it is for the Court to draw an inference from all the facts and circumstances of this case, giving due weight to the credibility of the witnesses (PP v Abdul Rahman Akif, supra). In this case the evidence shows that acting on information received from the informer PW7 and PW8 set up a meeting with the 2nd

accused. On 7.12.2004 PW8 and the informer met with the 2nd accused at a Chinese restaurant. At the meeting the 2nd accused asked

PW8 how many pills PW8 wanted to buy. PW8 answered that he wanted to buy RM200,000.00 worth. The 2nd

accused agreed to supply 2 types of

pills the following day. PW8 and the informer then gave the 2nd accused a

lift to Plaza Pelangi before returning to Hotel Merlin Inn. On 8.12.2004 at Page 24 of 32

about 3:30 p.m. the 2nd

accused telephoned PW8 asking where he was. At

about 4:00 p.m. the 2nd

accused then arrived in a taxi and met with PW8

and the informer at the hotel lobby. After talking for about 15 minutes they went up to room 613 where PW8 showed the 2nd

accused the money. The

2nd

accused said that he could supply 17,000 pills. It was agreed between PW8 and the 2nd

accused that the pills would be put into a car parked in the basement car park of Hotel Merlin Inn North Wing. The 2nd accused then

received a telephone call and he informed PW8 that his friend had arrived at the basement car park but the car was no where to be seen. After some delay the 2nd

accused left the room. PW8 joined the 2nd

accused later at

the hotel lobby. The 2nd

accused informed PW8 that his friend had already

left the hotel but was told to come back to the basement car park. Subsequently, the 2nd

accused received a telephone call and he left the hotel lobby. In the meantime, PW12 the arresting officer was outside Hotel Grand Blue Wave. PW12 saw a Honda Jazz stopped outside Hotel Merlin Inn. He also saw a Chinese man exiting the Honda Jazz and entered Hotel Merlin Inn. Not long after PW12 saw a Chinese man coming out from Hotel Merlin Inn walking towards the Honda Jazz. That man then opened the boot of the Honda Jazz, took out a bag and walked towards Hotel Merlin Inn North Wing. PW12 was then instructed to arrest the suspects. PW12 went to the basement car park of Hotel Merlin Inn North Wing. The suspect was arrested as he was walking out of the car park. At the same time PW12's other team had also arrested the driver of the Honda Jazz. Both the suspect and the driver of the Honda Jazz were brought to the car park of Hotel Merlin Inn North Wing. In the presence of both the suspects PW12 opened the boot of JCN 5262 where he found a bag containing another bag in which the drugs exhibits were found.

The chemist PW4 testified that he had thoroughly examined and analysed the exhibits submitted to him by PW13. He conducted the standard tests on the exhibits recovered and concluded that the net weight substances were 943.03 grams 3,4 ­ Methylenedioxymethampthetamine (MDMA) and 697.59 grams MDMA. MDMA is listed in the First Schedule of the DDA. PW4 prepared a chemist report (P15) for the analysis of the said exhibits. PW4 has been a chemist with the Chemistry Department for more than 14 years. He holds a B. Sc degree majoring in chemistry and had given expert evidence in court on more than 50 occasions. His expert evidence had been accepted in other drugs cases. The Court accepts his findings with regard to the technique of identification and methodology of Page 25 of 32

analysis of the dangerous drugs. The Court is satisfied with the manner in which the analysis was conducted by PW4. There is no other evidence to challenge or contradict PW4's findings. Accordingly, the Court accepts PW4's findings as true and accurate.

Upon a scrutiny of the prosecution evidence one feature is apparent. There is no direct evidence as to who put the drugs in the boot of JCN

5262. There is, however, evidence of surrounding circumstances. Small Boy (the 1st

accused) met with PW8 and the informer at the Chinese restaurant. The 1st

accused had offered to supply pills worth

RM200,000.00 to PW8. The 1st

accused had in pursuance to the

agreement, called at Hotel Merlin Inn the following day to see PW8 and the informer. The 1st

accused wanted to see the money and he was shown the money by PW8. After the 1st

accused was satisfied that the money was in

place he telephoned his friend (the 2nd

accused) to make the drop. The 2nd

accused was seen arriving in a Honda Jazz. He exited from the Honda Jazz and entered Hotel Merlin Inn. The 1st

accused then took a bag from

the boot of the Honda Jazz. In the premises it can be reasonably inferred both the 1st

accused and the 2nd

accused were acting in concert. The 1st

accused had negotiated the sale of the pills. The 2nd accused was the

person delivering the pills. As agreed between the 1st accused and PW8,

the pills were to be placed in the boot of JCN 5262 in the basement car park of Hotel Merlin Inn North Wing. After both the accused persons were arrested, they were brought to the car JCN 5262. When the boot was opened by PW12, he found the drugs inside the bags. In the circumstances aforesaid it can be reasonably inferred that the 1st accused

and the 2nd

accused played their respective roles in furtherance of the agreement to traffic in the drugs. It can also be reasonably inferred that the drugs in the boot of JCN 5262 were put there by the 2nd accused after he

had taken them from the Honda Jazz. The Court is also satisfied that the prosecution witnesses, in particular, PW7, PW8 and PW12 are credible witnesses. PW7's evidence is substantially corroborated by PW8 and PW12. Their evidence is consistent and their credibility has withstood the test under cross-examination.

Turning now to the two main grounds of contention raised by learned defence counsels for the 1st

and 2nd

accused. The first ground relates to

the identity of the drugs exhibits and the second ground relates to the failure to call the informer for cross-examination. Page 26 of 32

(i) Identity of the drugs exhibits

According to PW12 the arresting officer bag marked "A" contained 9,280 pills weighing about 2,900 grams and bag marked "B" contained 3,000 pills weighing about 2,200 grams. PW13 the investigating officer testified that bag marked "A" contained 9,280 pills weighing 2,900 grams whilst bag marked "B" contained 7,000 pills weighing 2,000 grams. There is a discrepancy between the number of pills in bag "B" of 4,000 pills. There is, however, no discrepancy in the weight of the pills in bag "B". There is also another discrepancy in the number of pills in the packet marked "A3". According to PW13 the investigating officer, the number of pills in "A3" were 990 pills. However, the chemist PW4 said that the number of pills in "A3" were 995. There is an increase of 5 pills. Finally, there is a discrepancy in the weight of the pills in bag marked "B" (bag B1 to B7). PW12 and PW13 testified that the gross weight of the pills was 2,200 grams. However, the chemist PW4 testified that the net weight of the pills was 2,206.54 grams.

What is the cumulative effect of these discrepancies in number of pills and the weight? No explanation was given by the prosecution to account for the discrepancies. Learned deputy submitted that there is no break in the chain of evidence. The difference between the net and gross weight of 6.54 grams was very little and insignificant. The charge in this case involves 1,640.62 grams. As to the discrepancy on the number of pills, learned deputy argued that there was no possibility that the drugs exhibits had been tampered with. PW12 had taken back the drugs exhibits to the police station and he had marked the exhibits before handing them over to PW13 the investigating officer. All the exhibits had been identified by PW12 and PW13 and the chemist PW4. There is no evidence of tampering. It was also contended that the additional number of 5 pills in packet "A3" is not fatal because it does not change the identity nor weight of the drugs exhibits. It has been established through the process of identification that the drugs exhibits are one and the same. In support learned deputy cited PP v Chong Soon Wah [2008] 9 CLJ 153. In that Page 27 of 32

case the chemist testified that the gross weight of the drugs found in the glove compartment of the car was 458.08 grams whilst the investigating officer said it was 455 grams., giving rise to a difference of 3.08 grams. The High Court held that it was a small difference bearing in mind that the investigating officer had explained that he had used a normal weighing instrument. The difference was so nominal and it did not prejudice the accused. In Gunalan Ramachandran & Ors v PP [2004] 4 CLJ 551 (CA), the Court of Appeal held that the difference of 0.08 grams is too small to cast any doubt on the evidence of the drugs exhibits. Learned deputy also cited PP v Hong Ho Aik (Per. Jenayah No. MT3-45-29-2004 Johor Bahru High Court) where the High Court held that the difference in the gross weight of the drugs exhibits might be because the different weighing instrument used by PW12, PW13 and the chemist PW4. . The Court agrees with the prosecution's submission that the discrepancy in the weight of the drugs exhibits are minimal and of no prejudice to the accused. The discrepancy of 6.54 grams when viewed against the charge of 1,640.62 grams is too small to cast any doubt on the evidence of the drugs exhibits. The Court also agrees that the discrepancy in the number of extra 5 pills is too small. The total number of pills found in packet "A3" is 995 pills. Take away 5 pills there remains 990 pills. The discrepancy is so small so that there is no prejudice to the accused persons.

What about the discrepancy in the 4,000 extra pills found in bag "B"? In this case the weight of the pills in bag "B" is the same notwithstanding the discrepancy in the number of pills. The Court is of the view that in a case of this nature, it is the weight of the drugs exhibits that is material. The fact that there is a discrepancy in the number of pills, be it an extra 4,000 pills, does not prejudice the accused as the weight of the drugs are the same. More importantly, the drugs exhibits have been properly accounted for. The drugs exhibits have been kept by PW12 after their recovery before being handed over to PW13. PW13 issued an acknowledgement for the drugs exhibits. PW13 kept the drugs exhibits in a metal cabinet to which he has sole access. The drugs exhibits were then handed over to the chemist. The chemist issued an acknowledgement receipt for the same. After the examination and analysis were completed Page 28 of 32

the chemist returned the drugs exhibits to PW13. The Court is satisfied that the drugs exhibits were properly handled and accounted for by PW12, PW13 and the chemist PW4. There is no evidence of tampering of the drugs exhibits. Accordingly, the Court finds that there are no doubts as to the identity of the drugs exhibits.

(ii) Prosecution's failure to call the informer for cross-examination The key question is whether the informer is a mere informer or an agent provocateur. An informer is generally regarded as one who supplies or gives information relating to the offence to the enforcement agencies with a view that the offender be arrested. The Cambridge Advanced Learner's Dictionary 2nd

Edn defines an `informer' as a person who gives

information in secret, especially to the police. Whether the informer is an informer or an active agent provocateur would depend on the facts of this case. Examining the myriad roles played by the informer in the prosecution's narrative, the informer's role is not restricted to merely the giving of information. The informer played a substantial and significant role in the operation. He was responsible for setting up the initial meeting between Small Boy and PW8. He drove PW8 to the Chinese restaurant for the meeting. He telephoned Small Boy at the Chinese restaurant. He was present throughout the meeting with PW8 and Small Boy. After the meeting he gave Small Boy a lift to Plaza Pelangi. He was also involved in the subsequent discussions with PW7 and PW8 to lay the trap. Beyond that he also assisted in bringing the car JCN 5262 to the car park for the drop. Having been seen by the 1st

accused the informer's identity is also

no longer a secret.

The prosecution elected not to call the informer to the witness stand. The Court recognises that the prosecution has a complete discretion as to the choice of witnesses to be called at the trial. However, it is also trite that the prosecutorial discretion is subject to its overriding duty to call all of the necessary witnesses to establish proof against the accused beyond all reasonable doubt. In this case the informer was clearly not only an informer. He had played a very active role throughout the operation. He had assumed the character of an agent provocateur. He had put the 2nd accused in touch with the undercover agent PW8. Without his intervention the 1st

and 2nd

accused persons might never have been arrested. He is an Page 29 of 32

important and material witness to the prosecution's case. (see Munusamy v PP [1987] 1 MLJ 492). In the circumstances, the informer falls within the category of witnesses described by Lord Roche in Senevirante v R [1936] 3 All ER 36 as `witnesses essential to the unfolding of the narratives on which the prosecution case is based'. In Ti Chuee Hiang v PP [1995] 2 MLJ 433 (SC) the informer had put the appellant in touch with the undercover agent. The informer enticed the appellant to walk into a deliberate trap which had been planned and organised by the police. The informer accompanied the police undercover agent to the place to meet the appellant. The informer departed only after the appellant has arrived. The informer was the active instrument without whose intervention, the appellant might never have been even arrested. His identity was no longer a secret and thus he lost the protection from disclosure of identity normally accorded to informers under s 40 of the DDA. The Supreme Court held that the prosecution's failure to call the informer or offer to the defence was fatal to the prosecution case. Edgar Joseph Jr FCJ speaking for the Supreme Court said at p 142:

Having said that it is in our view clear law that while the prosecution has a complete discretion as to the choice of witnesses to be called at the trial (see, eg Adel Muhammed el Dabbah v AG of Palestine [1944] AC 156 at pp 167 ­ 169; [1944] 2 All ER 139 at pp 143 ­ 144), the most basic limitation upon prosecutorial discretion in the presentation of a case is that it also has a duty to call all of the necessary witnesses to establish proof against the accused beyond all reasonable doubt, and if, in the exercise of its discretion, it fails to fulfil this obligation ­ which is nothing less than a statutory duty ­ the accused must be acquitted.

In the present case, the informer, having regard to his role, was not a mere informer, but had assumed the mantle of an agent provocateur for it was he who had put the appellant in touch with the undercover agent, Lian. Indeed, he was the active instrument without whose intervention, the appellant might never have been even arrested. His identity was no longer a secret and thus, he had lost the protection from disclosure of identity normally accorded to informers under s 40 of the Act. In these circumstances, he came within the category of witnesses described by Lord Roche in Seneviratne, as `witnesses essential to the unfolding of the narratives on which the prosecution case is based'. The same might be said of the informer's friend.

Yet, neither the so-called informer nor his friend, whose testimony would have been essential to the unfolding of the narrative on which the prosecution case was based, was called by the prosecution or even made Page 30 of 32

available to the defence to be called as defence witnesses nor any explanation vouchsafed to the trial judge for these glaring omissions. We hasten to add, that in a case such as the present, where it was never suggested by the prosecution that either of these individuals was not capable of belief, it would not have sufficed for the prosecution to have merely made them available to the defence to be called as defence witnesses, as such a course would have put the defence to the disadvantage of not having been able to cross-examine them on any point on which they might support the prosecution case. In our view, having regard to the circumstances of the present case, it was the obligation of the prosecution to call and examine these individuals as their witnesses or, at least, to have offered them for cross-examination by the defence, or in default, to have explained why they were unable or unwilling to call them as the case may be. We say so because without their testimony there was a gap in the narrative of the prosecution case. Moreover, there was no suggestion that their testimony would have been obviously hostile to the prosecution or otherwise unreliable, in which case, `the prosecutor will ensure that the accused is given the opportunity to call the witness' (per the High Court of Australia in Richardson). We also observed that although counsel for the appellant did, in the course of his address in the court below, criticise the prosecution for failing to call the informer, nowhere in his judgment did the judge direct his attention to this point. This, in our view, was a serious misdirection by way of non-direction which had occasioned a grave miscarriage of justice. In Chan Chor Shuh v PP [2003] 2 MLJ 26 (CA) the prosecution relying on s 40 of the DDA did not call or offer the informer as a witness. In that case the informer had communicated with the appellant. He had arranged the rendezvous with the appellant in order to accompany the appellant to return the hired car. He was also present at the time of the arrest. The Court of Appeal held that the informer was essential to the unfolding of the narrative of the prosecution's case and should have been called as a witness. Speaking at p 151 PS Gill JCA (as he then was) said: We are, on reflection, not in total agreement with the learned judge on this aspect, on his treatment of the defence, especially in respect of the role of Wong Lou Kat. Even though there is a paucity of evidence whether the said Wong Lou Kat was an agent provocateur, we felt in view of the role he played both in the prosecution's and defence's version, he should have been produced as a prosecution witness, or at the least offered to the defence. The undisputed facts remain that the said Wong Lou Kat was present at the time of the arrest, and equally there was communication between him and the Page 31 of 32

appellant, prior to the appellant's arrest. In fact he arranged the rendezvous with the appellant in order to accompany the appellant to return the hired car. A distinct possibility that was not considered by the trial judge was the fact that there could have been a pre-arrangement between the appellant and the said Wong Lou Kat about a pick-up, at the rendezvous, suggested by the said Wong Lou Kat. This is a plausible possibility which should have been borne out in the learned trial judge in his grounds of judgment. With regret, this was not done. If we were to accept this possibility as mentioned above, it somehow throws a different complexion to the entire case. We thus find the lack of application of the learned judge of this possible defence, a miscarriage of justice.

We wish to emphasize here this is not the usual run of the mill case, when the police merely acted on a tip off, by an informer, who is invariably not present, but is a case where the informer was not only present at the time of the arrest, but was in dialogue with the appellant prior to the arrest, and had dealing with the appellant as regards the hiring of the car prior to the arrest of the appellant. We are of the concerted view that Wong Lou Kat was essential to the unfolding of the narrative of the prosecution's case and should have been called as a witness. The trial judge's rejection of the need to call him based on the fact that he was an informer is in our view misplaced. In the present case there is no evidence whatsoever to show that the informer cannot be traced or located. No explanation was forth coming from the prosecution. As the informer is an important and material witness he ought to have been called as a witness. The non production of the informer is not merely on account of the prosecution's failure to obtain evidence. In the light of the evidence and in the circumstances of this case, it amounts to a withholding or suppression of evidence, namely, the non-production of an important and material witness to the prosecution case. Failure to call the informer as a witness leads to the inference that if he had been called, his evidence would have been unfavourable to the prosecution. The outcome is that the presumption under s 114(g) of the Evidence Act 1950 must be invoked against the prosecution. In PP v Rashid bin Ismail [2001] 1 AMR 1149 the prosecution did not call one Saniah bt Mohd Tahir nor tendered her statement. Saniah was the first person the police party saw when they raided the premises. Saniah was in the house when the accused was arrested. She was alleged to have taken the packages from a room and handed them to the accused for him to get rid of. She was also arrested with the accused and taken to the police station. Though she was not charged the High Court found that she was a Page 32 of 32

material witness. In the circumstances of that case the High Court invoked the adverse inference under s 114(g) of the Evidence Act 1950 against the prosecution. (see also PP v Mohd Fahmi bin Hamzah [2002] 6 MLJ 340) For the foregoing reasons the Court finds that there is a gap in the prosecution's case. The prosecution has failed to make out a prima facie case against the accused persons (see Abdullah Zawawi v PP [1985] 2 MLJ 16). Accordingly the 1st

and 2nd

accused persons are hereby acquitted

and discharged.

(VERNON ONG LAM KIAT)

JUDICIAL COMMISSIONER

HIGH COURT MALAYA

JOHOR BAHRU

DATED: 7TH

APRIL 2009

COUNSEL

Jean Sharmila & Azreen ­ Pejabat Penasihat Undang-Undang Negeri Johor, Johor Bahru ­ for prosecution.

Iszam & Hazlan ­ Tetuan Iszam Kamal & Hazlan, Selangor ­ for OKT1. Hisham Teh Poh Teik, Sukhaimi & MJ Pereira ­ Tetuan Teh Poh Teik & Company, Johor Bahru ­ for OKT2.

VO-j-45-6-2006/2009/mj

Context