Mervyn Chan V Pendakwa Raya


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[Mahkamah Tinggi Sabah & Sarawak di Miri Rayuan Jenayah No: 46-01-2010(MR)


Antara Mervyn Chan Dan


Pendakwa Raya]








[1] The appellant was charged and convicted by the High Court in Miri with trafficking in dangerous drugs (methamphetamine) under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA), and sentenced to death under s. 39B(2). The charge read:


“That you on the 29th day of January, 2010 at about 1.05 pm in front of Pejabat Poslaju, Jalan Pos, Miri, in the district of Miri, in the State of Sarawak, on your behalf, did traffic in dangerous drugs, to wit,


460 grams of Methamphetamine and you thereby committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under section 39B of the same Act.”


[2] We affirmed both the conviction and sentence, and thereby dismissed the appeal. We were satisfied that the trial judge was correct in his findings on the evidence and the law. In our view, there was overwhelming evidence pointing to the guilt of the accused/appellant.


[3] We now provide our grounds.


[4] The detailed background facts are sufficiently set out in the learned trial judge’s judgment. It is not necessary to repeat them here, except to summarise the primary facts.


[5] The appellant was at the time of the arrest, a Chinese Interpreter at the


High Court, Miri. He was caught in possession of a Poslaju parcel containing




the proscribed drugs just outside the front gate of the Poslaju Office in Miri, where he had gone to collect the parcel. He had driven there with his friend, Raymond Sim (PW9), described by the appellant as his best friend.


[6] The Poslaju slip on the parcel (Exhibit P10 (a)) named the intended recipient as “Mervin” Chan and the contact phone number as 012-8501282. ( “1282”).


[7] Two Nokia hand phones were seized by the police bearing the “1282” number (P11) and the number 019-8498585 (“8585”) (P12). The prosecution argued that both phones were seized from the appellant upon his arrest, but the appellant disputed this, stating that the “1282” number belonged, and was used by, Raymond Sim (PW9). The appellant relied on the data contained in phone number “8585” that was admitted by him as his. In phone number “8585”, the number “1282” was assigned to “Raymond Sim” in the phone memory. It was therefore the position of the appellant that the parcel was intended for PW9 and he had gone to the Poslaju Office to collect it for PW9 who had requested him to do so.


[8] The written submission for the appellant contained the gist of the primary argument:


“The Appellant’s mobile phone is registered in his own name had the number 019-8498585 (Exhibit P12) …


It has to be pointed out here before proceeding any further that human beings such as the witnesses in this case are capable of




giving false evidence but the data retrieved from P11 and P12 and the itemized phone bills and other documents such as PW9’s passport do not. The data retrieved from P11 (“1282”) and P12 (“8585”) and the itemized Phone bills will show the innocence of the Appellant and the evidence extracted therefrom fits in and rests well with the testimony of the Appellant but not with that of the Prosecution witnesses in particular with that of PW2 (ASP Gabriel) and PW9 (Raymond Sim).


Firstly, Exhibit P12 (“8585”) which PW2 admitted seizing from the Appellant at the time of arrest, upon being examined in Open Court showed that the phone number that appeared on the Poslaju slip (“1282”) (P11) was assigned to PW9. (Raymond Sim) in the phone memory. This shows that PW9 was in possession of Exhibit P11 (“1282”) and was the intended recipient of the Poslaju parcel. The Appellant, at no point of time after his arrest, had the opportunity to tamper with Exhibit P12 (“1282”) as it was in possession of the police…


Secondly, Exhibit P11 (“1282”) was operated and examined in Open Court by PW2. P11 (“1282”) had the phone number (“8585”) (Exhibit P12) which is the Appellant’s phone number, assigned in its memory to the Appellant’s name (“MERVYN”)… This fact together with the fact that P12 showed that the number “1282” (P11″) is assigned to “Raymond Sim” (PW9), irresistibly indicates that Exhibit P11 (“1282”) did not belong to the Appellant and was not in the Appellant’s possession and in fact indicates that P11 was used by and in the possession of PW9. Again, at no point in time is there any evidence to show that the Appellant tampered with P11 to alter the data in it…




Thirdly, it should be noted that Exhibit P11 (“1282”) had a tendency to follow PW9 (Raymond Sim) in the days before the Appellant’s arrest and there is no evidence that Exhibit P11 (“1282″) was with or used by the Appellant prior to 29th January 2010….”


[9] Thus, in this appeal the appellant had sought to rely heavily on the electronic data in an attempt to show that the parcel actually belonged to PW9, since the number “1282” allegedly belonged to PW9. The appellant was merely requested by PW9 to collect the parcel for him. The appellant was therefore an innocent or momentary carrier without knowledge of the exact nature of the contents of the parcel.




[10] The prosecution’s case rested on a sequence of events that led to the appellant being caught “red-handed” in possession of the 460 grams of Methamphetamine hidden in the Poslaju parcel that contained a box allegedly of a health product sent from a company in Damansara Utama, Selangor, described as “Beauty Lumierie, 28A & 30A, Jalan SS21/62, 47400 Damansara Utama, Selangor”. Acting on information received, the police intercepted the parcel. PW2 (ASP Gabriel ak Risut), the Head of the Narcotics Department IPD Miri, intercepted the parcel at the Maskargo office, which he then brought to the Poslaju Office. The police then arranged for the parcel to be delivered to the recipient named, namely Marvyn Chan of “Kompleks Mahkamah Miri”. A police corporal, disguised as a Poslaju worker, followed PW10 (Hafez bin Edris), a Poslaju Mail Operator, to the




Court Complex to deliver the parcel. PW2 was also on standby at the Court Complex.


[11] The hand phone number of the intended recipient on the parcel being the “1282” number, PW10 made a call to this number when he arrived at the Court Complex. Someone who claimed to be Mervyn Chan answered the call, and he was asked to come down to collect the parcel. That person did not appear but another court staff, PW6 (Zamie bin Hadni), came instead and asked whether he could collect the parcel on behalf of Mervyn Chan, but was told only Mervyn Chan could collect the parcel.


[12] While PW10 was on the way back to the Poslaju Office, he received a call from hand phone number “8585”. The caller, whose voice sounded like the person PW10 spoke to earlier when he called number “1282”, asked where his “barang” was, to be told that it was being returned to the Poslaju Office, and he could collect it from that office.


[13] The appellant was the person who eventually collected the parcel at around 1.00 p.m. the same day from the Post Assistant, Shirley ak Nyegang (PW5).


[14] The appellant was arrested by Lance Corporal Andrew ak Engkok (PW7) at the entrance of the Poslaju Office. He had the parcel under his arm. The appellant, according to PW7’s evidence, appeared surprised and shocked. He immediately lowered the parcel that he was holding.




[15] PW9, who accompanied the appellant to the Poslaju Office, was also arrested. At the JSJN Miri office, the parcel was opened in front of both the appellant and PW9, and was found to contain two boxes with four empty bottles and twelve transparent plastic packets containing crystalline substances suspected to be syabu. The appellant again merely showed shock and surprise. At all times from the time of his arrest up to the time he was brought to the JSJN did the appellant protest his innocence, or even told the police that the package belonged to PW9 and that he was merely collecting it for PW9.


[16] The crystalline substances were analysed by the chemist (PW1; Rami Gendang) who found them to contain 460 grams of Methamphetamine. The prosecution relied on the affirmative evidence of possession, and invoked the presumption of trafficking under s. 37(da) of the DDA.


[17] At the stage of the prosecution case, the appellant attempted to argue that there was a break in the chain of custody in the handling of the drugs. It was suggested that there was a mix-up in the exhibits; PW1 had said he received 12 envelopes from PW16 (Insp. Mohd Halid) and further testified that he kept “another 12 envelopes and put them in a bigger envelope marked E and put it in a locked cabinet inside the strong room”. It was questioned whether the correct 12 envelopes were taken out for the chemical analysis. The identity of the samples was also questioned on the basis of a discrepancy in the testimony relating to plastic packet P8(b) which supposedly had a tear at the bottom. PW16 had stated in evidence that the packet as having a tear, not a hole or burn mark, but that it had been closed. PW2 had stated that it was a burn make caused by the hot red seal wax that




was applied to the covering envelope that melted the envelope and affected the plastic packet. The exhibit that was produced in Court had a small hole in it.


[18] The prosecution, on the other hand, argued that there was no gap in the chain of evidence in the handling of the seized drugs between the time when PW2 seized the drugs from the accused, to the time when he handed them over to PW16 at the JSJN office. PW16 as the Investigating Officer had kept them inside his locked cabinet, and when he took them out to be forwarded to the chemist (PW1), they had been properly labeled and sealed with the PDRM 399 mark. They were so identified by PW1 as being the drugs sent for analysis.




[19] At the close of the prosecution case, the learned trial judge concluded that his lordship was satisfied on the evidence and on the principles of law, a prima facie case had been established, stating: “It is clear to me that the accused was knowingly in possession of the drugs”.


[20] Referring to the argument of break in the chain of evidence, the learned trial judge said:


“Learned counsel for the accused submitted that there was a break in the chain of evidence regarding the drug exhibits. According to counsel PW1 testified that she received 24 plastic packets when there should be 12 packets. With due respect, I do not find this to




be borne out by the evidence. I have examined PW1’s evidence carefully and it is clear to me that her evidence taken in its entirety shows that she only received 12 packets from the police and not 24 as alleged by counsel…Further, her testimony is that she examined only 12 packets. That part of her evidence was not challenged at all in cross-examination and it is therefore deemed to be admitted:


Wong Swee Chin v PP…Browne v Dunn…”


[21] This conclusion is obviously a strong finding of fact by the trial judge on the evidence, which should not be interfered with on appeal without good justification.


[22] We also found upon a reading of the Judgment and considering the evidence at the close of the prosecution case, as disclosed in the Appeal Record, that the trial judge’s conclusion, upon conducting a maximum evaluation of the evidence, was correct. There were indications, however, that the trial judge had applied a double presumption with references to presumption of mens rea possession under s. 37(d) and s. 37(da)(xvi) of the DDA, but viewed as a whole it was apparent that the trial judge found the ingredient of possession established by affirmative evidence and drew the inference of knowledge from the clear affirmative evidence of actual possession. The appellant was caught red-handed in actual custody and control of the parcel just outside the gate of the Poslaju Office in circumstances where it was clear that he must have had knowledge of the nature of the contents.


[23] The reference to the Federal Court decision in Muhammed Hassan v PP [1998] 2 CLJ 170 showed the trial judge was fully aware of the rule




against double presumption and abided by it. See the trial judge’s comment at page 16 of the Judgment: “Possession must in all cases be established by affirmative evidence to invoke the presumption of trafficking.”


[24] The trial judge correctly applied the principles of law as laid down in PP v Abdul Rahman Akif [2007] 4 CLJ 337, PP v Badrulsham bin Baharom [1988] 2 MLJ 585, and Mohd Farid bin Mohd Sukis & Anor [2002] 3 AMR 3457. As stated in, for instance, PP v Badrulsham bin Baharom, supra, “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 and omissions”. The trial judge stated in this context:


“In the present case the accused was caught red handed with the passage, which was addressed to him. He was also the person who collected the package from PW5 at the Poslaju counter. He had earlier called PW10 to inquire about the package after failing to show up despite being told by PW10 to come down to collect it. He did not explain to PW10 why he was unable to come down to collect the package. Based on the records at P37 and P38 the time gap between PW10’s call to number 012-8501282 and the call by the accused to PW10 using number 019-8498585 was 10 minutes. The accused must have sensed something amiss and wanted to make sure his illicit activity had not been detected by the authorities…”


[25] The learned trial judge further observed:


“It is possible that after receiving the call from PW10 the accused, wherever he was, asked PW6 to collected the package on his behalf. As for the call made to PW10 using number 019-8498585,




there is no doubt whatsoever that it was made by the accused. It could not have been any other person having regard to the name and address written on the package at the Poslaju Office. It cannot be a coincidence that one and half hours after PW10 received the call from number 019-8498585, which was registered in the accused’s name, the accused came to the Poslaju office to collect the package…


The alleged confusion over the ownership of cell phone number 019-8501282 is but an attempt by the accused to casts doubts in the prosecution’s case that it was him who answered PW10’s call on the morning of 29th January 2010. Despite his initial uncertainty I accept PW2’s evidence that cell phones P11 and P12 were seized from the accused which he handed over to the Investigating Officer for further action. P12 used the number 012-8501282.


The fact that the accused called PW10 to enquire about the package after PW10 called number 012-8501282 shows that he knew about the arrival of the package. The connection between the first call, the second call and the accused’s act of collecting the package at the Poslaju Office is all too obvious. It connects the dots on the question as to who the real owner of the package was.”


[26] With the obvious audio-visual advantages, and especially with the correct application of the principles of law, we agreed with the strong findings by the learned trial judge at the close of the prosecution’s case that there was a prima facie case to call upon the accused to enter on his defence within the meaning of s.180(3) and (4) of the CPC. Consistent with the elaboration by case law, the learned trial judge had addressed the issues of maximum evaluation of the evidence (include evaluation of the credibility of




witnesses for the prosecution and proof of every essential ingredient of the offence), the test of proof beyond reasonable doubt on the available evidence, and the caution that if evidence is capable of differing inferences, the inference most favourable to the accused should be preferred. We have noted that the trial judge fully applied the governing principles in Balachandran v PP [2005] 1 AMR 321 and PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457.




[27] The appellant elected to give evidence on oath, and called five other witnesses for the defence, including the brother of PW9, Ronald Sim (DW6). The thrust of the defence case was to place the ownership of the drugs on PW9, the appellant being just an innocent or momentary carrier of the parcel who had been asked to collect the parcel by PW9. The defence attempted to establish that the “1282” number belonged to PW9. We have alluded to the detailed log of calls being made between the “1282” number and the “8585” number. DW6 testified that his brother (PW9) had access to the “1282” number, but not the appellant. He, however, confirmed that this number was actually registered in the name of an Indonesian worker employed by his company, i.e. Santo Hendraman, who apparently disappeared when the appellant and PW9 were arrested. The trial judge was clearly unimpressed with DW6’s testimony, observing that this witness had come to court “to tell deliberate lies in an attempt to save the accused”. The relevant passage in the judgment noted:




“The accused called DW6 to support his defence. It is plain that the primary purpose of calling DW6 was to show that the accused had no access to cell phone number 012-8501282 but that his brother did. I have considered DW6’s assertion and I have no doubt that DW6 had come to this court to tell deliberate lies in an attempt to save the accused. I do not accept his evidence that PW9 occasionally had access to cell phone number 012-8501282. He mentioned Santo Hendraman who according to him owned cell phone number 0128501282 but conveniently claimed that this person disappeared after PW9 and the accused were arrested. I am inclined to believe that this Santo Hendraman is a fictitious character which DW6 conjured up to cast doubts on the testimony of PW9.”


[28] The appellant tried to persuade the court that all the calls from number “1282” made on 29.1.2010 to his phone number (“8585”) were made by PW9, to which PW9 had vehemently denied. Even the appellant had to concede that when he called PW9 at 10.00 a.m. to invite him for lunch, it was made to PW9’s personal phone number, not the “1282” number. See the following exchanges during the cross-examination of the appellant (DW1):


“Q: Put to you that Raymond received a phone call from you at about 10.00


a.m. on 29.1.2010 when he was at his mother’s shop, agree?


A: For the 10.00 a.m. call yes.


Q: Why was it necessary for Raymond to use two different handphone


numbers when he called you that day?


A: He used three different numbers as he owns 3 handphones.


Q: Put to you that Raymond Sim never called you using 0128501282 at any


occasion prior to your arrest on that day.


A: I disagree.




Q: Put to you that you were the one who invited Raymond Sim for lunch and


Raymond Sim was only informed by you that you would be collecting the parcel when you were in your car with him for lunch.


A: I disagree.


Q: Put to you were the one who invited him for lunch and not for the other thing.


A: I disagree.”


[29] Although calls were made to and from the “1282” number, the evidence could not establish PW9 was the caller or recipient as the case may be. The fact remained that two handphones were seized from the appellant on his arrest, and one of them carried the “1282” number. The learned trial judge, in assessing the evidence, chose to disbelieve the appellant, but accepted PW9’s testimony that he had nothing to do with the drugs and the number “1282” did not belong to him. The trial judge also rejected the allegation that PW9 had tricked the appellant into accepting the parcel. This was what the trial judge said in this connection:


“The clear impression I get from the accused’s explanation is that having been caught with the drug he had to try to push the blame on PW9 as a convenient scapegoat His case is that although the package containing the drug was addressed to him it was intended for PW9. It is obvious that his explanation is tailored to counter PW9’s evidence that he never asked the accused to collect the package and never owned cell phone number 012-8501282. The accused took pains to stress the point that each time he communicated with PW9 on 29th January 2010 it was to number 012-8501282. He seemed to be obsessed with this number perhaps because this was the cell phone number written on the package…




Given the importance of his evidence and the grave implication it has on the defence case I have paid particular attention to PW9’s demeanour while he was giving evidence particularly under crossexamination. I am satisfied that he is a witness of truth and that it is safe to rely on his testimony. I am mindful of the fact that demeanour or being unshaken in cross-examination is not the acid test for truth because an accomplished liar can be a convincing witness but in the case of PW9 I have no reason to doubt his credibility and reliability as a witness.”


[30] We were in agreement with his lordship’s assessment, since on the totality of the evidence at the close of trial, the evidence, direct, circumstantial and inferential, showed overwhelmingly that culpability rested with the appellant. The appellant failed to cast a reasonable doubt on the prosecution’s case, even after considering his, and his own witnesses’ evidence.




[31] In the premises, we affirmed the findings on conviction and sentence of the High Court, and dismissed the appeal. The erudite observations by the High Court at the conclusion of the Judgment deserves mention, and we quote:


“I am convinced that no one asked the accused to collect the package. It was his package and he went to collect it. PW9 is the accused’s best friend. There is no reason for him to put his best friend’s life on the line. Even the accused himself when asked in cross-examination could not think of a reason why PW9 would want




to victimize him. The simple truth is, the accused tempted fate and got caught.”








Court of Appeal




Dated: 16th January 2015 Counsels/Solicitors


For the appellant: Ranbir Singh Sangha (Orlando Chua with him) Messrs Rambir S. Sangha & Co. Advocates & Solicitors No. 1372, 2nd Floor, Jalan Kubu Centrepoint Commercial Centre Phase II, Sarawak, 98000 Miri


For the respondents: Farah Ezlin Binti Yusof Khan Deputy Public Prosecutor Attorney General’s Chambers Blok C3 & Aras 2, Aras 1-8, Pusat Pentadbiran Kerajaan Persekutuan, 62512, WP Putrajaya



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