[K45D-1/10-2011]

(PP V. Mohana Dass A/L Velayutham)

Jurisdiction: MALAYSIA
IN THE HIGH COURT IN SABAH & SARAWAK
AT KOTA KINABALU

Parties: Complainant: Public Prosecutor

Accused: Mohana Dass A/L Velayutham

File Number: K45D-1/10-2011

Issues: Whether the element of possession of drugs has been

proved?
Whether the accused has raised a reasonable doubt in his
defence?

Hearing Dates: 2 - 4 April 2012,

10 May 2012,
29 30 August 2012,
12 13 September 2012, 19 September 2012

Defence stage
26 October 2012,
14 November 2012,
11 December 2012, 24 December 2012, 28 December 2012

Clarification of submission: 5 February 2013

Date of Decision: 8 February 2013

Judge: HONOURABLE JUSTICE DATUK DAVID WONG

DAK WAH

Representation: For Public Prosecutor: DPP Naziah Binti Mokhtar

Royal Malaysian Customs
Department

For Accused: Mr. Rakhbir Singh

M/S Rakhbir Sing & Co.
Kota Kinabalu, Sabah
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JUDGMENT

On the 19.9.2012, I had ruled that the prosecution had proved a prima facie case

3 against the accused, upon which I called the accused to enter his defence. I

shall now set out my reasons for my decision.

Prima facie case:

6 The accused is charged with the trafficking of dangerous drugs under Section

39B (1)(a) of the Dangerous Drugs Act 1952 (Act 234) (DDA)and punishable

with death by hanging under Section 39B(2) of the same Act.

9 For defence to be called the prosecution is required to prove that the accused on

31.7.2011 at about 4.30 p.m at Kota Kinabalu Airport, Terminal Two, in the

District of Kota Kinabalu did traffic in dangerous drugs, namely 4674.3

12 grammes of Ketamine. (prohibited drugs)

Standard of proof:

At the end of the prosecution case I am required to determine whether the

15 prosecution has made out a prima facie case against the accused. I had in the

case of Public Prosecutor v Chung Chung Kiang & Others [2008] 8MLJ 650

came to the conclusion that the phrase prima facie case means beyond

18 reasonable doubt. My reasons for that view are fully set out in that judgment

and I adopt those reasons here. It is of interest that in the recent case of Public

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Prosecutor v Ramanathan Chelliah (2009) 3 CLJ 300 the Court of Appeal

21 through the judgment of Zainun Ali JCA had this to say:

On the question of the standard of proof, our view is simply this. Though the
majority decision in Arulpragasan held that the test at the close of the
24 prosecutions case was beyond reasonable doubt which means a maximum
evaluation of evidence should be undertaken by the court, the decision in Tan
Boon Kean went the other way. It stood for the prima facie test.

27 However it must be noted that the Federal Court in Tan Boon Kean agreed with
the principle established in Khoo Hi Chiang that the quantum of proof at the
close of the prosecutions case is based on the maximum evaluation of evidence.

30 The terminology may differ, but both the majority and minority were united on
the point that the court must undertake a maximum evaluation of evidence at the
close of the prosecutions case.

33 This observation is manifested in Looi Kow Chai & Anor v. Public Prosecutor
[2003] 1 CLJ 734. And again in the Federal Court case of Balachandran v.
Public Prosecutor [2005] 1 CLJ 85, the maximum evaluation test was applied.
36 Augustine Paul FCJ speaking for the Federal Court held that at the close of the
prosecutions case, the court must undertake a positive evaluation of the
credibility and reliability of all evidence adduced by the prosecution.

39 In view of the above, the trial judge in this appeal had, in our view, applied the
correct standard of proof in following the case of Tan Boon Kean (in her
grounds of judgment). Even if she had referred and followed the standard
42 determined by Khoo Hi Chiang based on the above analysis, the trial judge
applied the same standard of proof, ie, maximum evaluation of the evidence
since the difference between the standard of proof in both Tan Boon Kean and
45 Khoo Hi Chiang is basically a difference in semantics. The importance lies in its
quantum which in both, are the same.

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Thus, in our view the trial judge in applying the correct standard of proof at the end
48 of the prosecutions case had not misdirected herself.

Prosecution case

51 On 31.7.2011, the accused was a passenger on an Airasia flight from Shenzen to

Kota Kinabalu. At about 4.30 pm, the accused after collecting his luggage was

requested by one customs Officer, namely Muhammad Hafiz Bin Hassan (PW4)

54 to have it scanned. That luggage is grey in colour and was admitted as an

exhibit P23 (the luggage). It had a luggage tag with a number 1301891 (P27)

which corresponded to the luggage tag (P26) found in the accuseds passport.

57 The result of the scan of the luggage gave rise to a suspicious image, upon

which PW4 sought the help of a fellow officer (PW5) to examine the luggage.

PW5 then requested for the passport from the accused and also requested the

60 accused to open the luggage for examination. The accused then complied and

opened it with ease with his key.

PW5 then found clothes only inside the luggage. Sensing something was not

63 right, PW4 and PW5 removed all the clothing and scanned the luggage again

which also gave rise to another suspicious image. PW4 then re examined the

luggage and found that there was a secret compartment in the luggage and

66 inside the same contained 8 plastic bags containing white powder.

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Upon discovery of the 8 plastic bags with white powder, PW4 and PW5

detained the accused. Thereafter, the narcotics team from the Customs

69 Department led by Customs Officers Aderis Ambutit Wexler (PW7) has arrived

in Terminal 2 at about 6.00 pm. Preliminary tests made on the content of one of

the plastic packaging they found positive Ketamine. The accused and the

72 exhibits then were brought back to the office by PW7 and Customs

Enforcement team for thorough inspection.

All 8 transparent plastic packaging were marked by PW6 with the notation C1,

75 C2, C3, C4, C5, C6, C7 & C8 (respectively exhibit P5 to P12). These exhibits

and the accused were then handed over to the Investigating Officer of the

Customs Officer Fardly Harris Bin Salleh (PW8). P5 to P12 together were then

78 were stored in a locked cabinet in his office until 9.8.2011 when the same were

sent for chemical analysis to the chemist Ahmad Nazri bin Husain (PW1).

Relevant receipts were issued by the appropriate people.

81 The results of chemical analysis conducted by PW1 confirmed white crystalline

powder material in P5 to P12 is Ketamine weighing 4674.3 grams.

Contents in the 8 plastic bags proven to be Ketamine?

84

In my opinion, the prosecution had successfully proven that the substance

seized is Ketamine weighing 4674.3 grams. In coming to my conclusion I

87 applied the principle stated in the case of Munusamy v Public Prosecutor

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(1987) 1 MLJ 492 and that is the chemists evidence is to be accepted at its face

value unless it is inherently incredible. Munusamys rationale was adopted by

90 the Supreme Court in Public Prosecutor v Lam San (1991) 3 MLJ 426. This is

what Hashim Yeop A Sani CJ (Malaya) said in that case:

93 Two things are implicit in that passage. First, unless the evidence is so inherently
incredible that no reasonable person can believe it to be true, it should be accepted as
prima facie evidence. Secondly, so long as the evidence is credible, there is no necessity
96 for the chemist to show in detail what he did in his laboratory

In my view the chemists (PW1) evidence had been quite comprehensive in that

99 he had explained to the court how he got the substance from the police and how

he had conducted his test and came to his conclusion.

Learned counsel attacked the evidence of PW1 by referring the Court to section

102 37(j) of the DDA which states as follows:

(j) when any substance suspected of being a dangerous drug has been seized and such
105 substance is contained in a number of receptacles, it shall be sufficient to analyse
samples of the contents of a number not less than ten per centum of such receptacles
and if such analysis establishes that such samples are all of the same nature and
108 description, it shall be presumed, until the contrary is proved, that the contents of all
the receptacles were of the same nature and description as the samples so analysed
and if such analysis establishes that such samples consist of or contain a dangerous
111 drug, it shall be presumed, until the contrary is proved, that the contents of all the
receptacles consist of or contain the same proportion of such drug;

114 Relying on the above section, learned counsel for the accused submits that

PW1s report suffers the fatal flaw of not using 10% of the drugs seized for
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testing. With respect I agree with the learned DPP when she referred to the case

117 of Muhammad Yusuf v PP [2011] 9 CLJ 488 where the Court of Appeal in

reference to section 37(j) DDA states as follows:-

The 10% stated in s. 37(j) DDA referred to the number of receptacles in which the
120 offending drugs were found and not to the weight and amount of the drugs found in or
the samples taken from such receptacles. In this instance, PW6 had homogenised the
contents of each of the packages before taking the sample and he had tested the
123 contents of each package. Thus, the provision of s. 37(j) DDA had no application here.

At page 496 & 497 the Court also stated as follows:-

126 We find no merit in this submission. It was explained by Abdul Hamid Mohamad JCA
(as he was then) in Gunalan Ramachandran & Ors v. PP [2004] 4 CLJ 551 that the
10% mentioned in s. 37(j) DDA refers to the number of receptacles in which the
129 offending drugs are found and not to the weight of the drugs found in or the sample
taken from such receptacles. What this means is that if drugs are found in say 30
receptacles, then under s. 37(j) it is permissible to analyse samples taken from the
132 contents of not less than 10% of the receptacles before it can be presumed that the
contents of all the receptacles consists of or contain drugs of the same nature and
description as the sample analysed.
135
However, as pointed out by the learned judge, the section does not lay down what
quantity or percentage of the substance found in the 10% of receptacles must be used
138 for analysis - that is a matter which is left to the Chemist who is doing the analysis to
determine whether the quantity taken as a sample for analysis is sufficient for the
purpose required. In PP v. Lam San [1991] 3 CLJ 2410; [1991] 1 CLJ (Rep) 391 the
141 Supreme Court (per Hashim Yeop Sani CJ Malaya) held that in regard to the evidence
of a chemist, so long as his evidence is credible, there is no need for the Chemist to
show in detail what he did in his laboratory.
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Reverting to the facts here the Chemist (PW6) had homogenized the contents of each of
the three packages before taking a sample from each to analyse. Accordingly the
147 contents of all three packages were tested. Accordingly the provisions of s. 37(j) have
no application to the facts here. The learned trial judge said in his judgment that he
accepted the findings of the Chemist that the substance he analysed was
150 methamphetamine weighing 359.13 grams. We see no error in the learned judges
decision. The Chemist had 21 years experience and had all the necessary academic,
profession and on the job training to enable him to give his opinion on the substance
153 analysed. The Chemist had also weighed the contents of each package and gave the
weight before and after analysis. He also described the type of tests done to determine
the type of drug found in each package. The Chemist had clearly given credible
156 evidence which was not subjected to cross-examination. The learned judge was correct
in accepting his evidence.

159 In the case at hand, PW1 had homogenised all the white substances found in the

8 plastic bags and took six samples from each of the 8 homogenised bags for

analysis. I see no problem in this manner of analysis and hence accept the

162 conclusion of PW1 that the 8 plastic bags contained Ketamine.

Did the accused traffic in prohibited drugs?

165 Trafficking under the DDA involves the element of possession and what that

means can be found in the following passage of Gopal Sri Ram JCA (as he then

was) in PP v. Mohd Radzi bin Abu Bakar [supra]:-

168 Now, as to what the ingredients of possession in law is has been established by
a long line of cases. We find it unnecessary to discuss all of them here. Suffice
that we refer to two of them. In Toh Ah Loh & Mak Thim v Rex [1949] MLJ 54.
171 Gordon-Smith Ag CJ when delivering judgment of the Singapore Court of

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Appeal explained the meaning in law of the word possession when appearing
in a statute. His Lordship said:

174 Possession, in order to incriminate a person, must have the following

characteristics. The possessor must know the nature of the thing
possessed, must have in him a power of disposal over the thing, and
177 lastly must be conscious of his possession of the thing. If these
factors are absent, his possession can raise no presumption of mens
rea, without which (except by statute) possession cannot be criminal.

180 The second is Saad Ibrahim v Public Prosecutor [1968] 1 MLJ 158
where Yong J stressed the necessity of establishing the ingredient of
knowledge on the part of an accused before he could be incriminated
183 with possession. His Lordship there said:

In my opinion mere possession is one thing and possession

with mens rea is another. Possession which incriminates must
186 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
189 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
192 this case.

We would also mention the learned judgment of Lim Beng Choon J in

Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585,
195 which contains a full discussion of the several cases on the point.

We accept these authorities as correctly stating the law.

198 In Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585, Lim

Beng Choon J stated what possession means:

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.I believe it is well settled at least by our Courts that to establish possession

201 by an accused person of any dangerous drugs or to impute to him possession of
the said drugs it must be first shown that he had knowledge of the drugs which
were found to be in his possession. The earliest authority, which I could find,
204 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

207 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
210 Woodrow 16 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
213 of the possession.

Has the prosecution proved that the accused had knowledge that the
contents in the luggage contained drugs?

216 In deliberating on the issue I was left with circumstantial evidence as opposed

to direct evidence in the form of a confession by the accused and I kept in mind

what Edgar Joseph Jr SCJ said in Public Prosecutor v Lin Lian Chen (1992) 2

219 MLJ 561 at 567 and that was:

It is trite law that where the prosecution is relying on circumstantial evidence,

the onus upon it is a very heavy one and that evidence must point irresistibly to
222 the guilt. If there are gaps in it, then that will not be sufficient

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225 Defences contention:

Learned Counsel for the defence submitted that the prosecution had failed

miserably in proving that the accused had any knowledge of the prohibited

228 drugs found in the secret compartment in the luggage and his reasons are these:

1. The prosecution did not conduct any fingerprint lifting on the 8 plastic

packing of the drugs in view of the undisputed presence of two other

231 persons in the Vikneswaran or Chin Kon Hee (also known as Ah Meng).

2. The prosecution did not call Chin Kon Hee as a witness to shed light what

234 had happened in the hotel in Shenzen.

3. The prosecution did not go to Shenzen to view the CCTV footage of the

237 hotel where the accused, Vikneswaran or Chin Kon Hee were staying.

4. One of the clothes from din the luggage which the accused was asked to

240 wear did not fit him.

5. The incomplete investigation conducted by the investigating officer.

243

DPPs contention:

Learned DPP in her submission stated as follows:-

246 8. Elemen Pengetahuan (Knowledge)

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8.1 Pengetahuan OKT ke atas dadah yang dibawa oleh beliau boleh dibuat
berdasarkan inference. Prinsip ini diputuskan dalam kes Parlan Dadeh v PP [2009] 1
249 CLJ 717 (TAG 2) di mana diputuskan di mukasurat 718 seperti berikut;

Proof of knowledge is very often a matter of inference. The material from which the
inference of knowledge can be drawn varies from case to case. It would be sufficient for
252 the prosecution to prove facts from which it could properly be inferred that the accused
had the necessary knowledge.

8.2 Mahkamah Persekutuan dalam kes Parlan Dadeh telah merujuk kepada kes
255 Emmanuel Yew Teiku v PP [2006] CLJ 597 di mana diputuskan;

It should be borne in mind that the proof of intention or knowledge is generally inferred
from the proved facts and circumstances. It is difficult to do so by other means
258 unless there is clear admission by the person himself.

8.3 Prinsip yang sama dinyatakan di dalam kes Wong Nam Loi v PP [1998] 1
CLJ 37 di mana diputuskan;

261 In most cases, knowledge cannot be adduced by direct or tangible evidence but only by
reference from the surrounding circumstances.

8.4 Inferens boleh dibuat bahawa OKT mempunyai pengetahuan ke atas dadah
264 yang dibawanya berdasarkan keadaan bagaimana dadah tersebut disembunyikan.
Dalam kes ini dadah disembunyikan di kedua-dua bahagian atas dan bawah lantai
P23 tersebut.

267 8.5 Keadaan bagaimana dadah tersebut disorokkan atau disembunyikan

menunjukkan OKT mempunyai pengetahuan mengenai dadah tersebut. Prinsip ini
dinyatakan dalam kes PP v Abdul Rahman Akif [2009] 4 CLJ 337 (TAG 4) di
270 mukasurat 339 seperti berikut;

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
273 knowledge.

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The irresistible inference to be drawn in the circumstances of the present case is that
the respondent all along knew about the drugs found in the car. The fact that they were
276 found hidden under the seats of the car and wrapped in Chinese newspaper would not
assist him to negate such an inference.

8.6 Mahkamah Persekutuan dalam kes Abdul Rahman Akif telah merujuk kepada
279 kes Zulfikar bin Mustaffah v PP [2001] 1 SLR 633. Kes yang sama telah dirujuk oleh
Mahkamah Rayuan dalam kes Hoh Bon Tong v PP [2010] 5 CLJ 240 di mukasurat
267;

282 And what Yong Pung How CJ Singapore said in Zulfikar Mustaffah v Public
Prosecutor [2001] 1 SLR 633, CA, at pp. 639 to 640, are germane to the
occasion at hand. There his Lordship said:

285 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
288 prosecution must also prove that the accused possessed the requisite
knowledge as to the contents of what he was carrying. In the course of
appeal before us, counsel for the appellant relied heavily on the fact
291 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
294 bundles.

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
297 whether the requisite knowledge was absent, this factor should still not be
given too much weight. Otherwise, drug peddlers could escape liability simply
by ensuring that any drugs coming into their possession are first securely
300 sealed in opaque wrappings. Rather, the court must appraise the entire facts
of the case to see if the accuseds claim to ignorance is credible.

8.7 Mahkamah Rayuan dalam kes Teh Hock Leong v PP [2008] 4 CLJ 764
303 memutuskan di mukasurat 769 seperti berikut;

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Turning to the facts of the present instance, we agree with the learned
trial judge that the method employed to bring the drugs in question
306 from Thailand into Malaysia was done in a most cunning fashion to
escape detection by the authorities. The method employed to convey or
transport a drug may sometimes furnish evidence of knowledge. For
309 example, an attempt to carefully conceal a drug may indicate an
intention to avoid detection and thereby point to knowledge.

Findings of the Court

312 To recap, for the accused to be incriminated with trafficking of the prohibited

drugs, the element of possession on the part of the accused must be proved.

Possession is as defined in the cases cited above requires physical control over

315 the controlled drug and knowledge of the existence of the thing itself, that is, the

existence of the prohibited drug but not the nature of the drug.

From the evidence of the prosecution, it was my considered view that there is

318 direct proof that the accused had custody and control of the drugs through his

possession of the keys to the luggage. As for knowledge, I found direct

evidence by virtue of drawing an inference from the manner in which the drugs

321 were packed and concealed in the luggage. It can be easily seen that the

luggage was specially made and designed to conceal and intend to avoid

detection of the prohibited drugs. The extra compartment cannot be easily

324 opened and in fact had to be opened by a screw driver. The amount of drugs,

namely 4674.3 grammes, hidden cannot be said to be a small amount, hence

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cannot have any inference of self consumption. To illustrate my description, I

327 can do no better than attach the photos of the luggage tendered in Court:

330

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333

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Hence taken all the evidence in its totality, I had found that the prosecution had

336 proven a prima facie case for trafficking.

Defence:

The accused (DW1) gave evidence under oath and in brief it is this.

339 The idea of going to Shenzen originated from Vickneswaran as the accused was

owed RM4000.00 by Vickneswaran and the trip was to set off that debt. The

accused agreed to the idea and went to Shenzen with Ah Meng also known as

342 Chin Kon Hee (DW2), a friend of Vickneswaran and Vickneswaran. The trip to

Shenzen and the presence of DW2 for the trip was informed to the accused at

the Mines Wonderland in Balakong.

345 Upon arrival at Shenzen, DW2 brought the accused and Vickneswaran to a

hotel to check in and thereafter left them there and said he would come back

tomorrow morning. During the trip most of the time by both the accused and

348 Vickneswaran were spent shopping and entertainment with the help of DW2.

On the day of departure to Kota Kinabalu, DW2 in the morning had contacted

the accused and Vickneswaran to get ready to go back to Malaysia.

351 What transpired that morning is crucial to the defence and it is this. According

to the accused, DW2 and a lady friend came to the room and the accused

opened the door for them. The accused saw DW2 and the lady friend brought 2

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354 bags (a black bag and a silver bag (P23)). After Vickneswaran came out from

the shower, the accused took his shower and when came out from the shower,

he was told by DW2 that his bags zipper was damaged and he had transferred

357 his clothing into the luggage (P23).

At the airport, the accused carried and checked-in the luggage and was given the

keys to it by Vickneswaran when they were already on the plane.

360 What happened after that was as stated by me earlier on when I was dealing

with the prosecution case. In brief, the luggage was scanned and later found to

have contained the drugs hidden in a secret compartment.

363 The Law:

The issue which confronts me is whether the accused has raised a reasonable

doubt.

366 It would be opportune at this time to remind myself what that entails.

In Balachandran v PP [2005] 1 CLJ 85 at page 100, the Federal Court said this:

Proof beyond reasonable doubt involves two aspects. While one is the legal burden on
369 the prosecution to prove its case beyond reasonable doubt the other is the evidential
burden on the accused to raise a reasonable doubt. Both these burdens can only be
fully discharged at the end of the whole case when the defence has closed its case.

372 In Adekunle Johnson Oshodi v Public Prosecutor & Other Appeals [1998] 1

CLJ 515 at page 528, the Court said this:

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However, with the maximum evaluation of the prosecution's evidence at the close of
375 the prosecution's case before calling for the defence, it was axiomatic that having
called for the defence the court was satisfied that there was no doubt whatsoever in
the prosecution's case.

378 In the present case, that doubt sufficiently to dislodge the prosecution must therefore
arise from the defence. The accused therefore had the evidentiary burden of raising a
doubt to any of the primary facts relied upon by the prosecution, and even the only
381 applicable statutory presumption under s.37(da) of drug trafficking was itself
dependent of primary facts. Failing to raise a doubt to the primary facts each accused
was to rebut the presumption of trafficking on a balance of probabilities (see Yuvaraj
384 v. PP [1969] 2 MLJ 217), with proof that it was more probable he was respectively
not trafficking in dangerous drugs. Then, if on the totality of the prosecution's case
and the defence, the court is left with any doubt or reservation as to the guilt or
387 innocence, then following time honoured practice in criminal trials, the accused
would be acquitted.

Learned counsel for the accused in his submission in essence contends that the

390 accused had no knowledge of what was inside the luggage as it was not him

who had packed the bag. To substantiate that contention, learned counsel refers

to the following evidence or inference:

393 1. There is evidence from DW4 (officer from Airasia) to infer that the

luggage did not belong to the accused as it was DW2 who had checked in

the luggage at LCCT in KL. Learned counsel refers to exhibit D4 to

396 show the weight of the luggage during check in is similar to that of what

was weighed during trial.

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399 2. The prosecution did not call Vicknesswaran and DW2 (Chin Kon Hee) as

their witnesses.

402 3. The person Vickneswaran is not fictitious as his father had testified that

he has a son by that name.

405 4. Lack of finger prints on the plastic bags containing the drugs and

5. Non production of CCTV footages from the LCCT, Kuala Lumpur,

408 Shenzen airport, Shenzen hotel and LCCT Kota Kinabalu.

With respect to learned counsel for the defence, for a charge of this nature, the

ownership of the luggage is not important as submitted by learned DPP for the

411 simple reason that the charge requires the element of control and knowledge of

the drugs. And I have held earlier that those two elements had been proved by

inferential evidence set out earlier. Hence the evidence of DW4 on the weight of

414 the luggage does not help the accused.

As for the failure to extract finger prints from the plastic bags containing the

drugs and lack of CCTV evidence, let me just say that ideally if they are

417 available the prosecutions case would no doubt be much stronger. But the

prosecutions duty is not required to prove its case beyond all doubts; it is only

to prove its case beyond reasonable doubt.

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420 Reverting to the crucial evidence that the accused was in the shower when DW2

and his lady friend on the date of departure to Kota Kinabalu, this was denied

by DW2 himself who said as follows:

423 Q: Selepas itu sebelum kamu mahu balik bersama Aboy dan accused, kamu ada
ke bilik hotel di mana diorang duduk ketuk pintu dan masuk.

A: Masa mahu balik saya ada beritahu pukul berapa saya tunggu di bawah

426 Q: Masa kamu sampai di hotel di mana Aboy tinggal, diorang sudah habis mandi
atau tidak?

A: Mungkin sudah.

429 Q: Siapa yang belum habis mandi?

A: Saya tak tahu sebab saya tak naik saya tunggu di lobby

Q: Masa kamu masuk bilik itu, apa kamu buat dalam bilik itu?

432 A: Saya masuk panggil diorang pergi makan itu saja.

One cannot escape from the fact that the evidence of DW2 is that of the defence

435 and is contrary to the evidence of the accused. No attempt was made by learned

counsel to impeach this witness; hence the evidence of the accused has been

damaged by his own witness. In the words of the learned DPP, the defence

438 collapses which I agree. In the case of Lim Guan Eng v PP (1998) 3 CLJ 769 at

page 788, this is what the Court says on the nature of DW2s testimony:

Now among the general rules that govern judicial appreciation of evidence in both
441 civil and criminal cases in the adversarial system of justice there is one of

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fundamental importance, a party is bound by the evidence of witnesses whom he calls

in proof of his case.

444 Further there is no evidence from the accused as to how long he was in the

shower. This is important in view of the manner in which the drugs were

concealed in a secret compartment in the luggage and the evidence from the

447 accused stating that both Vickneswaran and DW2 had to repack that bag as the

accuseds bag was damaged. Hence the totality of evidence does not support

the contention that the accused was totally ignorant of what he was carrying. In

450 short, his defence is a mere denial.

My conclusion is consistent to what Arifin bin Zakaria FCJ (as he then was)

inferred in the case of PP v Abdul Manaf bin Muhamad Hassan (2006) 2 CLJ

453 129:

In the present case, the drug was carried in small plastic packets each containing
small quantity of the drug. According to the evidence, 39.77 grammes of heroin was
456 found in a number of small plastic packets tucked in his waist, while 50 small plastic
packets containing 9.09 grammes of heroin was found in the right side pocket and
another 30 small plastic packets containing 5.57 grammes of heroin was found in the
459 left side pocket of the track top he was wearing. 20 small plastic packets were found in
each of the right and left pockets of his trousers, containing a total of 7.55 grammes of
heroin. Judging from the manner the drug was being carried ie. in small plastic
462 packets and taking into account the total amount of the drug involved, the reasonable
inference that may be drawn is that the respondent was in fact carrying it for the
purpose of trafficking. And bearing in mind the large quantity of the drug involved, it
465 cannot be seriously contended that the drug was for his own consumption. In any event,
it was never suggested in his defence that it was so. His defence was a mere denial that

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the drug was ever found on him. This was rejected by the learned trial judge. We are
468 satisfied he was not just a passive carrier. Armed with these facts, we are satisfied that
had the learned trial judge properly directed himself, he would nonetheless have come
to the same finding. In the circumstances, we hold that the Court of Appeal ought to
471 have applied the proviso to s 60(1) of the CJA and uphold the conviction and sentence
notwithstanding the misdirection by the learned trial judge. For above reasons, this
appeal is allowed and the order of the Court of Appeal is set aside. Accordingly, the
474 conviction and sentence imposed by the High Court are reinstated and affirmed.

As for the non calling of Vickneswaran (whose existence is not disputed) as a

witness, it is my view that it is not detrimental to the prosecutions case. It is

477 not a case of suppression of evidence as there is evidence in Court that he

cannot be found either by the prosecution or the defence. It may well be that he

has some connection to the prohibited drugs seized but his absence in this trial

480 does not detract the prosecution evidence that the accused had a prima facie

case to answer for reasons stated above.

Having considered the accuseds testimony and his explanation by way of

483 defence, I find for the reasons stated above that his explanation is not reasonable

and probable. Hence I find that his defence has not cast a reasonable doubt on

the prosecution case or of his guilt.

486 Having considered all the evidence in its totality, I find that the prosecution has

proved its case against the accused beyond reasonable doubt. I accordingly find

the accused guilty of the charge and convict him for the offence charged.

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489 I sentence the accused to death. He is to be hung by the neck till he is dead.

All the exhibits are to be disposed off by the police only after the accused has

exhausted his right of appeal.

492

(DAVID WONG DAK WAH)

Judge

495

498

501

504

507

510 Notice: This copy of the Court's Reasons for Judgment is subject to formal
revision.

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