DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO: P-05-290-2009
SUHAIMI BIN ABD HAMID ..PERAYU
PENDAKWA RAYA ..RESPONDEN
[Dalam perkara Mahkamah Tinggi Malaya di Pulau Pinang Perbicaraan Jenayah No. 45-38-2008 Pendakwa Raya Lawan
Suhaimi bin Abd Hamid]
MOHAMED APANDI ALI, JCA
LINTON ALBERT, JCA
HAMID SULTAN ABU BACKER, JCA
GROUNDS OF DECISION
 Originally the appellant faced three charges of drug trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA) punishable under section 39B(2) DDA. The first charge concerned a total of 22.10 grammes of dangerous drugs comprising 12.22 grammes of heroin and 9.88 grammes of monoacetylmorphine; the second charge and the third charge were in relation to 39.67 grammes of methamphetamine and 0.14 of Nimetazepam respectively. At the end of the prosecution case the second and third charges were both respectively amended to one of possession of those dangerous drugs stated therein under section12(2) of the DDA. The appellant was convicted under the first charge and sentenced to death. He was also convicted under the second amended charge and the third amended charge and sentenced to imprisonment for 7 years and 12 months
respectively and both sentences to run from the date of arrest. This appeal is only in respect of the first charge.
 On 26-11-2007, a team of police personnel led by DSP Leong Wen Yew (SP4) conducted a raid on an apartment unit at Block E-07-08 Condominium Mutiara, Jalan Perda Barat, Seberang Perai, Penang. Upon arrival at the door of the apartment unit, SP4 found the grill to be padlocked and the wooden door closed as was the window nearby. SP4 knocked on the door and called out believing there were people inside. When there was no response SP4 instructed one of his men to cut the padlock after which SP4 opened the grill and the door which was not locked. Once inside the apartment unit SP4 noticed there were three bedrooms apart from the kitchen and the sitting room. The door of the first bedroom was not closed but the other two bedrooms were closed and locked. SP4 then knocked on the door of the second bedroom and the door was after that opened by a woman who turned out to be Harisun binti Abdul Rahman (SP10), the appellant’s girlfriend.
 The appellant was at that time sleeping on a mattress laid on the floor. SP4 woke the appellant up and identified himself to the appellant who then told SP4 that he was the one renting the room and that SP10 was only a visitor. SP4 then conducted a search inside the
bedroom in the presence of the appellant. SP4 found and recovered one almond chocolate tin near the mattress. Inside the tin were 12 transparent plastic and all but one containing smaller plastic each containing a substance believed to be drugs whereas one transparent plastic without smaller plastic also contained a substance believed to be drugs; there was also a pair of jeans hung on the wall near the window and inside its right pocket was a small cloth pouch inside which were 4 small plastic packets each containing a substance believed to be drugs; on the floor at the corner of the wall was a blue mug containing two packets one containing 7 small packets 5 of which believed to be heroin and the other two believed to be methamphetamine and in the other packet were found 8 small packets containing substances believed to be heroin; there was also a bag on the floor inside which there was 4 big plastic bags inside each of which were smaller plastic packets inside all of which were substances believed to be drugs; and, finally there was also another sling bag on the floor containing 1 black bag, 1 envelope, 1 box, 1 plastic packet variously containing substances believed to be drugs as well as Eramin 5 and “WY” pills. Also seized from the bedroom together with the aforesaid items were a bunch of keys, empty plastic packets, plastic sealer, and live bullets. The key used by SP4 to open
the third bedroom was one of the keys in the bunch. Meanwhile another group comprising Lance Corporal Abd Rahman Abu Bakar (SP9) and two other police personnel saw a bald headed man coming out of the lift at the 7th floor and hurriedly re-entering the lift upon seeing SP9. The person was subsequently apprehended and arrested but never taken to the apartment unit. His name was Mohd Saffian bin Azmi. The appellant and all the items seized from the apartment unit were taken to the police station and subsequently handed over to the investigation officer Inspector Runi bin Said (SP11) who kept the seized items (exhibits) in the locked iron safe in his office.
 On 3-12-2007, SP11 took out the exhibits and put them in 5 envelopes and delivered them to the chemist, one Teoh Choon Ping. On 12-5-2005 SP11 got back the exhibits together with 5 chemist reports from the chemist Teoh Choon Ping who conducted the analysis of the exhibits as set out in the 5 chemist reports which confirmed that the exhibits comprised the different types of drugs and quantities as set out in the respective three charges.
 The learned judicial commissioner concluded that the prosecution had established a prima facie case against the appellant for
each of the three charges and called upon the appellant to enter his defence.
 The appellant testified that on the 26-11-2007 at around 5.00pm he was sleeping in the second bedroom when he was suddenly awakened by some men who introduced themselves as policemen. SP10 opened the bedroom door for them to enter after they knocked on the door. When asked, he told them that the bedroom was his. He said that they then took SP10 out and handcuffed her and proceeded to ransack the bedroom and subsequently showed him various items they recovered from different parts of the bedroom. The appellant admitted most of the items shown to him were his but denied the drugs were his. He also had no idea how the empty plastic packets and the plastic sealer came to be in the room. He confirmed that Mohd Saffian bin Azmi was arrested outside the apartment unit and was brought to the police station together with him and SP10. The appellant said that SP10 came to the bedroom once a week and everytime she came he was in the bedroom. He testified that apart from him, Jamal, Mus, Rosli, Jet, Jad, Sobri Reza, Un, Wan and Pak Lah had the keys to the apartment unit and the bedroom but only Jad and Reza were authorized by him to take out goods from the bedroom. He traded in shoes, trousers and
used shirts. He said he did not know how the packets containing drugs came to be in the bedroom. The appellant suspected the culprit to be Jad whose full name was Mohd Izad because they had quarreled before. Jad was his business partner and had cheated him. He said that Jad had also been arrested for an offence under section 39B and the investigation officer was also SP11. While he was in police custody he was asked to confess and was told that if he confessed SP10 would be released. SP10 was released after he confessed. During crossexamination the appellant confirmed that SP10 did not have the keys to the apartment unit and he had to open the door every time she came and he also did so on the day in question when SP10 came at around 5.00pm. The appellant admitted that the almond chocolate tin, jeans, blue mug, sling bag and the black bag could be seen inside the bedroom and that they were all his.
 At the end of the defence case the learned judicial commissioner found that the prosecution had established its case beyond reasonable doubt and that the appellant had failed to raise a reasonable doubt in respect of the first charge, nor did the appellant succeed in rebutting the presumption of trafficking under section 37(da) of the DDA in respect of the first charge. The appellant was thus
convicted and sentenced as aforesaid. Hence this appeal against the conviction and sentence in relation to the first charge.
 The issues raised on behalf of the appellant in this appeal revolved around the question of possession of the dangerous drugs. It was submitted that the appellant did not have exclusive access to the second bedroom where the dangerous drugs were recovered from. This was borne out by the testimony of Zalilah bt Hashim (SP7) the owner of the condominium unit who testified that she rented it out to the appellant and two others, namely, Mohd Rezza Hardy bin Asmoulhardy and Khairul Anuar bin Azmi under an agreement dated 15-5-2007. This was confirmed by SP7’s husband Mohamed Suhaimy bin Abdul Samad (SP6). There was also testimony from the appellant and SP10 that numerous other persons had access to the condominium unit several of whom had the keys to it and had access to the second bedroom where the offending drugs were found.
 The fact that others have access to the condominium unit and the second bedroom does not necessarily militate against a finding of possession by the appellant as was the case in the instant appeal. It is perhaps useful to recall the statement of the law set out in Leow Nghee Lim v. Reg  1 LNS 53 on the import of “possession”.
“………… 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 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. Is is essential to keep this distinction clearly in mind, especially when applying presumptions. ”
 It is patently clear, therefore, that possession need not be exclusive, a fortiori access. Hence there is no merit in the appellant’s argument premised on the mere fact that others had access to the second bedroom. Whether there was possession depends on the factual matrix of each given situation. Here, the drugs were found in the room occupied by the appellant and the appellant had admitted to be
the owner of all the items in which the drugs were found. He denied knowledge of how the drugs could have been there which took us to the next issue raised on behalf of the appellant.
 Learned Counsel submitted that the appellant had no knowledge, custody or control of the drugs recovered from the second bedroom. It was argued that there was no overt act on the part of the appellant expressing grief, regret, pleading or aggression when the drugs were recovered, from which knowledge, custody or control could be inferred, particularly where as here, the actual drugs were not visible. A similar situation arose in PP v. Abdul Rahman Akif  4 CLJ 337 where the packages in the car from which the drugs were recovered were found variously beneath the driver’s seat and the passenger’s seat. The Federal Court had this to say at P 349 – 350:
“It is trite that what constitutes “possession” under s.37 of the Act is a question of law. (See Yee Ya Mang v. Public Prosecutor  1 MLJ 120 and Public Prosecutor v. Badrulsham bin Baharom  2 MLJ 585). It is however a question of fact whether in a given case a person can be said to be in possession of something………………………..
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  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. ”
And at p 352 – 353:
“Applying the observations set out in the authorities cited above to the facts in the present case, the irresistible inference that may be drawn in the circumstances is that the respondent all along knew about the drug found in the car. The fact that they were found hidden under the seats of the car and wrapped in Chinese newspaper would not assist him to negate such an inference. From the evidence of PWS it is clear that little effort was required to uncover what was contained in the 3 packages. Therefore, we are of the view that on the facts and in the circumstances of this case the learned trial judge, properly
directed on the law, would have come to the finding that prima facie the respondent had possession of the drug independent of the statutory presumption under s.37(d) of the Act. ”
 Similarly in the instant appeal, the various receptacles in which the drugs were found were clearly visible and although the drugs were somewhat concealed and not visible, they were easily retrievable and in these circumstances as in Abdul Rahman Akif (Supra), it could be inferred that the appellant had knowledge of and custody and control over the drugs.
 In the circumstances we find no error in the findings made and conclusion arrived at by the Learned Judicial Commissioner. The appeal is accordingly dismissed. The conviction and sentence in respect of the first charge are affirmed.
Dated: 24 Mac 2014
signed Linton Albert Judge
Court of Appeal Malaysia
For the Appellant
For the Respondent
Tetuan Suzana Ismail & Partners
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