Ch`Ng Ah Teong V Pendakwa Raya


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RAYUAN JENAYAH NO. P-05-162-2010 (Mahkamah Tinggi di Pulau Pinang Perbicaraan Jenayah No. 45-26-2005)




















[1] The appellant was charged with an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) for trafficking in 73.0




grammes of dangerous drugs comprising 64.6 grammes of heroin and 8.4 grammes of monoacetylmorphine. He was found guilty and convicted of the offence charged and sentenced to death under section 39B(2) of the Act. He appealed but his appeal was dismissed and his conviction and sentence by the High Court were thus affirmed. We now give our reasons for dismissing his appeal against the conviction and sentence.


[2] At the trial before the High Court the prosecution called only four witnesses. The facts established were these. On 21-7-2004 at 9.30 pm ASP Shaharuddin bin Abdullah (SP4) led a police party comprising himself, two officers and seven other police personnel on a lookout at the Kompleks Belia dan Sukan, Batu Uban, Timur Laut District, Penang. They were divided into three different groups stationed at different parts of the entrance to the Kompleks. After about ten minutes SP4 saw a motorcycle PEL 4219 coming into the vicinity of the Kompleks and then stopped near a security booth. SP4 then saw the appellant alighting from the motorcycle with a package held in his right hand. SP4 quickly apprehended the appellant and arrested him. The appellant begged to be released. The package was seized from the appellant. SP4 inspected the contents of the package and found material he suspected to be dangerous drugs. The suspicions of SP4 were confirmed when it was established




from an analysis conducted by SP2, the government chemist that the material inside the package comprised 64.6 grammes of heroin and 8.4 grammes of monoacetylmorphine.


[3] On the facts aforesaid, the High Court concluded that there was actual mens rea possession of the dangerous drugs and because the heroin seized was more than 15 grammes the presumption of trafficking in dangerous drugs was invoked pursuant to section 37(da) of the Act. The appellant was accordingly called to enter his defence.


[4] In his defence, the appellant testified to his own version of the events that took place on 21-7-2004. He testified that he took a bus at around 7.00 pm to go to the Kompleks intending to exercise at the gymnasium there. He finished his exercise at the gymnasium at 9.30 pm. After that he went out to see whether his friend who was supposed to take him home had arrived. He went to the place where motorcycles were parked because he was told by his friend Ah Boy that Ah Boy would wait for him there. Ah Boy had also told him that his motorcycle had broken down and would borrow the appellant’s brother’s motorcycle. When the appellant was at the motorcycle parking lot he saw his brother’s motorcycle there with the key still stuck to the ignition but did not see Ah Boy. As the appellant was going towards the motorcycle some people




whom he did not recognize rushed towards him and arrested him. He was then handcuffed. The men were ordinarily dressed and were not wearing any uniform. They then went to the motorcycle and took a package from it and told him that the package contained drugs. The appellant did not know anything at all but admitted that the package was shown to him.


[5] The High Court ruled that the appellant’s defence was an afterthought and did not raise any reasonable doubt on the prosecution case. The presumption of trafficking under section 37(da) of the Act remained unrebutted. The prosecution had therefore proved its case beyond reasonable doubt. The appellant was accordingly convicted of the offence under section 39B(1)(a) of the Dangerous Drugs Act and sentenced to death.


[6] The grounds canvassed before us by learned counsel for the appellant fell under two main broad grounds, namely, in relation to whether there was a prima facie case against the appellant at the end of the prosecution case and the failure of the prosecution to establish the custody and control of the drugs by the appellant and his knowledge of the drugs.




[7] As to whether the prosecution had established a prima facie case it was argued that there was failure on the part of the prosecution to establish the appellant’s knowledge of the drugs or to adduce evidence of any drug trafficking transaction. We find no merit to these arguments because the appellant was simply caught red handed with the package containing the drugs.


[8] It is perhaps useful to refer to the case of PP v. Mardini Hussin [2005] 7 CLJ 495 where the accused was convicted for the offence of trafficking in dangerous drug on an identical factual matrix as the instant appeal. In that case, the accused was caught red handed alighting from his motorcycle holding a newspaper package which contained cannabis. Abdul Hamid Embong, J (as he then was) said at P 500:


“This common sense approach of Lord Diplock’s as termed by the Court of Appeal in Mohd Yazri’s case brought me to the conclusion that the accused was in possession of the said cannabis in the sense that he knew the nature of the drugs he possessed, was aware of it and had a power of disposal over it and indeed intended to transfer it to someone, in other words he was in possession with mens rea of that cannabis (see Toh Su Kuan v. PP [2005] 3 CLJ 740). The cannabis slab of which the




accused was in control and custody, was loosely wrapped in a newspaper which could be easily opened. The slab had a cut at one of its corners, exposing the dried leaf materials inside. It could be easily seen if one were to open the newspaper wrapping. This together with the large amount of cannabis involved may bring this court to draw an inference of possession against the accused. As was stated by Taylor J in Leow Nghee Lim v. Reg [1956] 22 MLJ 28:


“The inference to be drawn from control and custody, depend in part. On whether the quantity is suggestive of trafficking or of individual consumption”.


In this case, there was no suggestion by the defence that the cannabis found in the accused’s possession was for his personel consumption.


As for knowledge, it is trite law that this may be inferred from the circumstances of each case. It is incumbent upon this court therefore to consider the various surround factors such as from where the drugs was found, how it was recovered, the reaction of the accused on being accosted by the police, the manner it was




kept, the weight of the drugs recovered etc. to come to an inference of knowledge (see Surentheran Selvaraja v. PP [2005] 2 CLJ 264. Court of Appeal decision). Thomas J in Tong Peng Hong v. PP [1995] 21 MLJ 232 made a most pertinent remark on inferring knowledge when His Lordship said:


“If something is found for example in a bag which I am carrying or in a box to which I hold the key it is extremely reasonable to suppose, unless I produce some satisfactory evidence to the contrary, that I know all about it”.


[9] There was also no merit in the proposition that there was failure on the part of the prosecution to call any other witness in support of SP4’s version of the appellant’s arrest because under section 134 of the Evidence Act 1950 no particular number of witnesses shall in any case be required for the proof of any fact. The inconsistencies in the evidence of SP3 the investigation officer Chief Inspector Hasbullah Ali bin Abas and SP4 in relation to the place where the appellant and the exhibits were handed over to SP3 by SP4 and the inconsistency as to when the report of the arrest was made do not militate against the finding of a prima facie case because these are inconsequential inconsistencies which do not affect the core of the prosecution case.




[10] Learned Counsel for the appellant relied on YAP CHIN CHAI V. PP [2010] 4 CLJ where it was held that where there was failure to first establish possession the invocation of the presumption of trafficking was premature and untenable.


[11] In the instant appeal there was a positive finding of actual mens rea possesion of the drugs by the appellant and the presumption of trafficking was correctly invoked.


[12] Hence reliance on YAP CHIN CHAI was misplaced.


[13] In the circumstances aforesaid the second ground of appeal relating to the argument that there was failure to establish exclusive custody and control of the drugs and the appellant’s knowledge of the drugs is a non starter because the appellant was caught red handed holding the package in which the drugs were found and in the absence of a reasonable explaination the only inference that could be drawn was that the appellant had knowledge of the drugs and had custody and control of the drugs.


[14] For the reasons and in the circumstances aforesaid the appeal was dismissed. The conviction and sentence imposed by the High Court are affirmed.




Dated: 28 February 2014




For the Appellant


For the Respondent




Linton Albert


Judge, Court of Appeal Malaysia


Hisham Nazir


Messrs Hisham Nazir & Co. Peguam bagi pihak Perayu No. 17-3, Jalan Bandar 16 Bandar Pusat Puchong,


47100 Puchong


Selangor Darul Ehsan


(Ruj. Kami: HNC.ASG.179.12.HN)


Nadia Hanim binti Mohd Tajuddin Timbalan Pendakwa Raya Bahagian Perbicaraan dan Rayuan Aras 5, Jabatan Peguam Negara No. 45, Lot AG7 Presint 4, Persiaran Perdana 62100 Putrajaya



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