Ang Kok San V Pendakwa Raya


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(Perbicaraan Jenayah Pulau Pinang: 45-48-2007)












Mohamed Apandi Ali, JCA Linton Albert, JCA Mohd Zawawi Salleh, JCA








[1] This is an appeal against conviction and sentence imposed by the High Court, Penang on 3.3.2010. The Appellant was charged with one count of the offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA 1952”), in that on 15.3.2006, at about 6.00 p.m., at Room 501, Hotel Continental Jalan Pulau Pinang, District of Timur Laut, Pulau Pinang, trafficked in 2164.9 grammes of methamphetamine, a dangerous drug, and was sentenced to death under section 39B(2) of the Act.


[2] We heard this appeal on 10.4.2013. Having heard the submissions and upon perusal of the Appeal Records, we unanimously dismissed the appeal and affirmed the conviction and sentence imposed by the High Court.


The Prosecution’s Case


[3] The evidence adduced by the prosecution shows that on 15.3.2006 at about 8.45 a.m., a police party, comprising Inspector Azri bin Ramli (SP6) and Chief Inspector Balasubramaniam a/l Rajoo (SP8), conducted a surveillance at the Pudu Raya Bus




station. SP6 then saw the Appellant with a black sling bag over his shoulder boarding a bus no. JGX 9166. The bus left the station for the northern region at about 9.45 a.m.


[4] SP6, SP8 and the other police officers tailed the bus. It stopped at Juru Toll Plaza and SP6 saw the Appellant alighted with a few other passengers. The Appellant was still carrying the black sling bag over his shoulder. The Appellant was seen boarding another bus no. PGD 2906. The policemen followed.


[5] On arriving at the Sungei Nibong Bus Station, SP 6 saw the Appellant alighted from the bus with the black sling bag. The Appellant headed towards the taxi stand with one Abdul Rashid (SP7) and they both took a cab no. HP 1489 and proceeded towards Hotel Continental, Georgetown.


[6] Both the Appellant and SP7 checked into the said hotel. SP6 and SP8 continued their surveillance and at about 4.30 p.m., the Appellant emerged from the hotel lobby and left in a Volvo car. The sling bag was not seen with the Appellant.




[7] SP6 tailed the Volvo car which stopped at Dato’ Keramat Road. The Appellant and the driver went into a restaurant and they left at about 6.00 p.m.


[8] When the Volvo reached the hotel, SP6 and his men blocked the Volvo and arrested the Appellant and the driver. SP6 conducted a body search on the Appellant and found an identity card bearing the name ‘Ang Chwee Huat’ and a passport bearing the name of ‘Ang Kok Hoe’. SP6 also found 2 padlock keys inside the pocket of the Appellant’s trousers.


[9] A review of the CCTV footage led the Appellant to room No.501, registered under SP7’s name. The raiding team went to the said room and opened the room with the hotel spare key. Upon entry, SP6 saw SP7 sleeping on a single bed. A black Samsonite bag was found near the empty bed.


[10] The bag was locked. SP6 used one of the keys recovered from the Appellant to open the bag. Inside the bag were 3 envelopes containing white powdery and crystallite substance. The content of envelopes were later analysed by SP1 and found to




contain 2164.90 grammes of methamphetamine, the subject matter of the charge.


[11] Other items found in the bag were a bottle of perfume, a electric shaver with “AKH” initials, a mobile phone charger and a man’s brief. SP6 then seized and marked the exhibits, and prepared a search list. All the seized items were handed over to Inspector Ramli bin Mahad (SP13).


[12] At the end of the prosecution’s case, the essential and basic finding by the learned trial Judge was that the Appellant was in possession of the drugs i.e. that he had custody or control of the drugs and knowledge of what they were. By reason of their amount, the Appellant was presumed under section 37(da)(iv) of DDA 1952 to be trafficking in the said drugs. The Appellant was ordered to enter his defence.


The Defence Case


[13] The nub of the Appellant’s defence was that he had no knowledge of the presence of the drugs in the bag. He sought to establish his defence by putting the blame on SP7 to be the actual person carrying the sling bag. The Appellant also denied that the




keys were recovered from him but stated that the keys were found inside the hotel room No. 501.


[14] After considering the evidence as a whole, the learned trial Judge held that the defence raised was a bare denial and it could not raise a reasonable doubt on the prosecution’s case. The Appellant also failed to rebut the statutory presumption under section 37(da)(iv) of DDA 1952.


The Grounds of Appeal


[15] Before us, the conviction of the Appellant has been challenged on the following grounds:


(a) That the learned trial Judge had misdirected himself when he failed to appreciate that SP7 could have access to the black sling bag; and


(b) That the learned trial Judge had misdirected himself when he failed to rule that the element of ‘knowledge’ was not proved.


[16] We must say at the outset that the two grounds advanced by the Appellant relate to the findings of the fact made by the trial Judge. It is trite that where facts in issue are accepted or believed




by the trial court and no question of misdirection arises, an appellate court, will not ordinarily interfere with such findings of fact made by the trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the finding or that if the same facts were before the appellate court, it would not have come to the same decision as the trial Judge. This is because findings of fact made by a trial court are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an appellant satisfactorily proves that they are wrong. The trial court saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence, the Court of Appeal will not interfere with them. An appellate court may, however, interfere with such findings in circumstances such as where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. [See Thenegaran a/l Murugan & Anor v. PP [2013] 2 MLJ 855; Lim Kheak Teong v.




PP [1985] 1 MLJ 381; Periasamy s/o Sinnapan & Anor v. PP


[1996] 2 MLJ 557; Tan Thong Jin v. PP [2002] 3 MLJ 695].


Ground (a): The possibility of SP7 having access to the bag


[17] The questions of SP7 having access to the sling bag were considered by the learned trial Judge both after the close of the prosecution’s case and in evaluating the whole case after hearing the defence.


[18] His Lordship did make findings on the evidence relating to access by SP7. He found that SP7 had no reason to falsely implicate the Appellant. The key to the padlock was found on the Appellant. In our judgment, the learned trial Judge was right in doing so.


[19] It must be highlighted that the Appellant was seen carrying the bag containing the dangerous drugs from the Pudu Raya bus station in Kuala Lumpur to Hotel Continental in Georgetown, Penang. The man seen on the CCTV footage also had a black back with him. The nexus between the Appellant and the bag was further supported by the other items recovered from the said bag




particularly the electric shaver with the Appellant’s deceased brother’s initials.


[20] Such being the case, there is no dispute that the bag belonged to the Appellant and he was in possession of it.


[21] The next question to be dealt with is who placed the envelopes in the Appellant’s bag? The most reasonable inference is that it was the Appellant who did so. That in itself points to an assertion by the Appellant of dominion over the envelopes and their contents.


[22] We find no error in the trial Judge’s conclusion that the Appellant had control and custody of the sling bag which contained the dangerous drug.


Ground (b): Whether the Appellant had knowledge of the dangerous drugs


[23] In order to implicate the Appellant for possession of dangerous drugs, the prosecution must also prove that he had knowledge of the dangerous drugs that he was in possession of. As decided by a long line of cases, knowledge can be proved by (1) inference from the surrounding facts and circumstances [see PP v. Salleh Zakaria & Anor [2010] 4 CLJ 671] or, (2) by relying




on the statutory presumption of knowledge in section 37(d) of the DDA 1952 [See PP v. Lim Hock Boon [2009] 3 CLJ 430].


[24] It is, therefore, incumbent upon the court to scrutinize the entire evidence adduced before it to see whether an inference can be drawn against the Appellant that he knew about the drug in the 3 envelopes found in the bag.


[25] Short of any admissible admissions or confessions by an accused, the court in determining the element of knowledge will have to appreciate the totality of the evidence adduced including all circumstances relating to the arrest of an accused and his conduct – outward acts or omissions.


[26] In Ong Ah Chuan v. PP [1981] 1 MLJ 64, Lord Diplock said:


“Proof of the purpose for which an act is done, where such purpose is a necessary ingredient for 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. ”




[27] In discussing the same point, Augustine Paul J (as he then was) in PP v. Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 stated that:


“…As I have said in PP v. Chia Leong Foo [2000] 6 MLJ 705 in reliance on cases such as Chan Pean Leon v. PP [1956] MLJ 237, PP v. Badrulsham bin Baharom [1988]


2 MLJ 585 and PP v Phua Keng Tong [1986] 2 MLJ 279 proof of knowledge is very often a matter of inference. I consider it necessary to repeat what Thean J (as he then was) said in PP v Phua Keng Tong [1986] 2 MLJ 279 at p 286.


‘However, in this case, like in many others, proof of knowledge or belief on the part of an accused is a matter of inference from facts. In the case of RCA Corp v. Custom Cleared Sales Pty Ltd [1978] FSR 576; 19 ALR 123, the Court of Appeal in New South Wales in dealing with the question of knowledge of infringement of copyright said at p 478


Except where a party’s own statements or gesture are relied upon, proof of knowledge is always a matter of inference, and the material from which the inference of the existence of actual knowledge can




be inferred varies infinitely from case to case. ’


And the Court further said, at p 579:


‘It seems to us that the principle is more accurately put by saying that a court is entitled to infer knowledge on the part of a particular person on the assumption that such a person has the ordinary understanding expected of persons in his line of business, unless by his or other evidence it is convinced otherwise. In other words, the true position is that the court is not concerned with the knowledge of a reasonable man but is concerned with reasonable inferences to be drawn from a concrete situation as disclosed in the evidence as it affects the particular person whose knowledge is in issue. In inferring knowledge, a court is entitled to approach the matter in two stages; where opportunities for knowledge on the part of the particular person are proved and there is nothing to indicate that there are obstacles to the particular person acquiring the relevant knowledge, there is some evidence from which the court can conclude that such person has knowledge.




[28] On the issue of how inferences are to be drawn, the same learned Judge in a subsequent decision of PP v. Reza Mohd Shah b. Ahmad Shah [2002] 4 MLJ 13 observed as follows:


“Thus, in drawing inferences from proved facts, the court is entitled to infer knowledge on the part of a person on the assumption that such a person has the ordinary understanding expected of him. The court is not concerned with the knowledge of a reasonable man but with reasonable inferences to be drawn from a situation. There are many circumstances from which knowledge can be inferred. One instance is the inference to be drawn from the act of a person absconding or fleeting from the scene of a crime. ”


[29] In the present case, according to SP6, the Appellant look fearful when the drugs were discovered. The displayed reaction of fear was consistent with the facts that the Appellant had knowledge of the drugs in the bag.


[30] Further, the Appellant’s name is ‘Ang Kok San’. However, his travel document borne the name ‘Ang Kok Hoe’ (his deceased




brother) and his identity card borne the name of ‘Ang Chwee Huat’. He also introduced himself as Ang Kok Hoe to SP7. Further, the duo checked into the hotel under SP7’s name, though it was the Appellant who paid the bill. As the learned trial Judge had rightly pointed out, these were attempts by the Appellant to camouflage his real identity in order to avoid detection.


[31] In Syed Ali Syed Abdul Hamid & Anor v PP [1982] CLJ Rep 340, the Federal Court in dealing with the issue of lies observed as follows:


“Apart from the fact that appellant No.2 had possession and control of the car during the relevant period, i.e. between the evening of 13 August and forenoon of 15 August 1977 and the fact that he had opportunity to conceal the opium in the car during the period, there are two other circumstances which go to show the appellant No.2 had the necessary knowledge. We recall that he told PW4 that the purpose of borrowing the car was to go to Trengganu.


This was a deliberate lie as he never intended to go to Trengganu at all but to Singapore, which he did. We also recall that he told PW 4 that he needed the car for two days. And as such there was o reason at all for him to see PW 14 again in the evening asked for




permission to use it further on the 15 August. Such permission was already given to him. In other jurisdictions a false statement made by an accused person concerning the surrounding circumstances in which an offence was committed whilst he had an opportunity to commit the offence can be regarded as a corroboration of the evidence against him. Eade v.


The King [1924] 34 CLR 154 and also Regina v. Lucas [1981] 3 WLR 120 also R v. Tripodi [1961] V.R. 186.


We accept the decisions in these cases to be good law. In this case we hold that the representation he made to PW4 regarding the purpose of borrowing the car was a deliberate lie and is therefore a corroborative evidence against him for which he must explain. Such lie is a reflection of his consciousness of guilt as regards the use he intended to make of the car in question. ”


[32] Applying the observations set out in the authorities cited above to the facts of the present case, we are of the opinion that the inference to be drawn from the evidence of conduct against the background of the other evidence is that the Appellant had knowledge of the drugs found in the bag.


[33] On the facts and circumstances of this case, the learned trial Judge had properly directed himself on the law, and had came to




the correct finding that the Appellant had possession of the drug independent of the statutory presumption under section 37(d) of the DDA 1952.


[34] It is trite that the burden of proof on the Appellant is merely to raise a reasonable doubt on the prosecution’s case. We have set out the Appellant’s defence in the earlier part of this judgment. The Appellant’s defence was that the bag was not his and SP7 was the one carrying the bag. Upon close scrutiny of the evidence, we find his story to be highly improbable for the two reasons. Firstly, the bag was locked to which he hold the key. Secondly, the Appellant’s personal belongings were found inside the bag.




[35] In our considered view, the prosecution had led sufficient evidence to prove the case against the Appellant beyond reasonable doubt. The Appellant also failed to rebut the statutory presumption of trafficking invoked against him.


[36] There is no merit in the grounds of appeal advanced by the Appellant. As such, we dismissed the appeal and affirmed the conviction and sentence imposed by the High Court.




Dated: 3 May 2013






Court of Appeal Malaysia


Counsel for the Appellant: Amirul Ridzuan bin Hanif Tetuan Hanif & Co Peguambela & Peguamcara Wisma Tek Lee No: 38, Jalan Tun Perak 50050 Kuala Lumpur


Counsel for the Respondent: Nurulhuda Nur’aini binti Mohd Nor Bahagian Perbicaraan dan Rayuan Jabatan Peguam Negara Putrajaya



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