DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. 05-64-2002 (J)
ANTARA
PENDAKWA RAYA … PERAYU
DAN
ABDUL RAHMAN BIN AKIF … RESPONDEN
CORAM: AHMAD FAIRUZ BIN SHEIKH
ABDUL HALIM, CJ (MALAYSIA)
RICHARD MALANJUM, CJ (SABAH &
SARAWAK)
ARIFIN ZAKARIA, FCJ
2
JUDGMENT OF THE COURT
Background:
The respondent was charged with an offence of trafficking in
dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act
1952 (“the Act”) in the High Court at Johor Bahru for trafficking
in cannabis weighing 4,826.9 grammes. He was convicted and
sentenced to death by the said court. On appeal to the Court of
Appeal, the conviction and sentence was set aside and substituted
with an offence under s 6, punishable under s 39A(2) of the Act.
The respondent was sentenced to 18 years imprisonment and 10
strokes. The prosecution now appeals to this Court against the
decision of the Court of Appeal.
Prosecution’s Case:
On 9.5.1996, at about 1.00 am, acting on information received,
ASP Nordin (PW5) and a team of police officers from Narcotics
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Unit Johor Bahru conducted a surveillance in the area of Jalan
Kubur, Bakar Batu, Johor Bahru. At about 3.30 am, PW5 saw a car
bearing registration No. TT 2161 approaching the surveillance area
and it came to stop under a shed. PW5 and Detective Sergeant
Badron (PW6) noticed that the respondent was the driver of the car
and he was alone in the car.
When the respondent came out from the car and was about to lock
the car, PW5 and his team moved towards the respondent, he
introduced himself as police officer and arrested the respondent.
PW5 then administered caution under s 37A of the Act to the
respondent and asked whether there was any contraband inside the
car. When the respondent answered in the negative PW5 then took
possession of the car key and conducted a search inside the car.
He found one package under the driver’s seat and two packages
under the front passenger’s seat. The 3 packages were found to
contain 5 blocks of compressed plant material. The chemist,
Mision bin Sulaiman (PW4), analyzed the 5 blocks of compressed
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plant material and confirmed that they were cannabis as defined
under s 2 of the Act having a net weight of 4,826.9 grammes. The
respondent was accordingly charged for trafficking of the cannabis
under s 39B(1)(a) of the Act.
Before the learned trial Judge PW6 in his evidence testified that he
saw the respondent was alone inside the car when the car TT 2161
was approaching the surveillance area. He followed the car closely
until it came to be parked under a shed near the said area.
Ghazali Mohd (PW8) who runs a business under the name of “Zag
Agency & Services” stated that the car bearing registration number
TT 2161 was rented to the respondent since 27.9.1995 at a monthly
rental of RM1,300.00.
The chemist (PW4) in his evidence testified that he conducted the
four standard tests namely the physical examination, microscopic
examination, Duquenois Levine test and Thin Layer
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Chromatography test on the 5 blocks of compressed plant material.
He confirmed that the said plant material was cannabis as defined
in s 2 of the Act having a net weight of 4,826.9 grammes.
When the prosecution sought to tender the respondent’s cautioned
statement which was recorded on 11.5.1996, that is 2 days after his
arrest, this was objected to by the defence on the ground that the
cautioned statement was not voluntarily made by the respondent.
A trial-within-trial was conducted and at the end of which the
learned trial judge held that the cautioned statement was
voluntarily made by the respondent. The cautioned statement was
accordingly admitted in evidence.
At the end of the prosecution’s case the learned trial judge held
that a prima facie case had been made out against the respondent
and then called upon the respondent to enter his defence.
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The respondent testified on oath that, on 8.5.1996, at around
9.00 pm he left Kuala Terengganu heading towards Johor Bahru
driving the car TT 2161 to meet an Indonesian man by the name of
“Jiri”. He met Jiri at the Mamak stall in Taman Sentosa, Johor
Bahru. Jiri requested for the car key to put packages of cloth
samples inside the car which were to be delivered to the
respondent’s employer. The respondent claimed that he did not
know the actual content of those packages. Thereafter, the
respondent and Jiri went to Tebrau at Jiri’s request to meet Rozita.
The respondent dropped Jiri at a nightclub in Tebrau before
proceeding to Johor Bahru where he expected to collect more cloth
samples from Jiri. At about 4.30 am, 9.5.1996, when the
respondent parked his car in front of a shop, several police officers
rushed towards him and arrested him as he was coming out from
the car. The respondent claimed that he was shocked. In answer
to questions by PW5, he said he did not know what was the
“barang” and where the “barang” was placed inside the car.
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Finding of the High Court
The learned trial Judge found that the respondent has custody and
control over the said cannabis at the time of the arrest. And since
the cannabis was found in the car driven by the respondent, this
goes to prove that the respondent was transporting the cannabis to
Jalan Kubur. Besides that the respondent had through his caution
statement confessed to the fact that he was transporting the said
cannabis to Jalan Kubur for sale. The learned trial Judge held that
the element of trafficking as defined in s 2 of the Act was thus
satisfied. On the totality of the evidence, the learned trial Judge
found that the respondent failed to raise any reasonable doubt on
the prosecution’s case and failed to rebut the statutory
presumption under s 37(da) on the balance of probabilities. The
respondent was found guilty for trafficking under s 39B(1)(a) of
the Act and sentenced to death.
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Finding of the Court of Appeal:
Gopal Sri Ram JCA, delivering judgment of the Court of Appeal,
stated that the main issue in the appeal was directed at the
admission of the cautioned statement allegedly made voluntarily
by the respondent two days after his arrest.
On this issue, the Court of Appeal agreed with the submission for
the defence that the learned trial Judge ought not in the
circumstances of the present case to have admitted the cautioned
statement. On that premise the Court of Appeal held that the
charge of trafficking cannot be sustained, thus setting aside the
conviction and sentence imposed by the High Court and
substituted the same with the offence of possession under section 6
of the Act, punishable under s 39A(2) of the Act. The respondent
was sentenced to 18 years imprisonment and 10 strokes.
9
The Appeal
Having held that the trial court had erred in admitting the
cautioned statement, the Court of Appeal set aside the conviction
under s 39B(2) of the Act. The court, however, went on to hold
that there was sufficient evidence establishing beyond doubt that
the respondent had custody and control of the 3 packages
containing 5 blocks of compressed plant material and, relying on s
37(d) of the Act, it held that there is presumed possession of the
drug. The prosecution, however, contended that in the
circumstances of this case, independent of the presumption under s
37(d) of the Act, there is ample evidence for the court to draw an
inference that the respondent knew what was contained in the 3
packages.
We agree with the submission of the prosecution that the proper
approach to be adopted by the appellate court in the circumstances
is that, having held that the cautioned statement was wrongly
admitted, then it is for the court to scrutinize in totality other the
10
evidence before it to see whether, quite apart from the cautioned
statement, there is sufficient evidence to support the finding of the
trial court. Regrettably the Court of Appeal failed to adopt such a
course before coming to its conclusion. Hence, it falls upon this
court to conduct such an exercise. The incontrovertible facts as
found by the trial court was that the 3 packages were found in the
car driven by the respondent. He was the only person in the car at
the material time. One package was found under the driver’s seat
and two packages under passenger’s seat. PW 8 gave evidence
that the car was in the possession of the respondent for more than 7
months prior to his arrest. In the circumstances we think the trial
Judge was right to hold that at the material time the 3 packages
were in the custody and control of the respondent. Indeed the
Court of Appeal agreed with the trial Judge. But mere custody and
control is not sufficient to establish possession for the purpose of
the Act, there has to be established knowledge of such drug by the
respondent. In Chan Pean Leon v. Public Prosecutor (1956) 22
MLJ 237 Thomson J dealt with the issue of possession under the
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Common Gaming Houses Ordinance, 1953 and at pg. 239 he
observed:
“ “Possession” itself as regards the criminal law is
described as follows in Stephen’s Digest (9th Edition,
page 304):
‘A moveable thing is said to be in the
possession of a person when he is so situated
with respect to it that he has the power to
deal with it as owner to the exclusion of all
other persons, and when the circumstances
are such that he may be presumed to intend
to do so in case of need.’
To put it otherwise, there is a physical element and a
mental element which must both be present before
possession is made out. The accused must not only be
so situated that he can deal with the thing as if it
belonged to him, for example have it in his pocket or
have it lying in front of him on a table. It must also be
shewn that he had the intention of dealing with it as if it
belonged to him should he see any occasion to do so, in
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other words, that he had some animus possidendi.
Intention is a matter of fact which in the nature of
things cannot be proved by direct evidence. It can only
be proved by inference from the surrounding
circumstances. Whether these surrounding
circumstances make out such intention is a question of
fact in each individual case. If a watch is in my pocket
then in the absence of anything else the inference will
be clear that I intend to deal with it as if it were my own
and accordingly I am in possession of it. On the other
hand, if it is lying on a table in a room in which I am
but which is also frequently used by other people then
the mere fact that I am in physical proximity to it does
not give rise to the inference that I intend to deal with
it as if it belonged to me. There must be some evidence
that I am doing or having done something with it that
shews such an intention. Or it must be clear that the
circumstances in which it is found shew such an
intention. It may be found in a locked room to which I
hold the key or it may be found in a drawer mixed up
with my own belongings or it may be found, as
occurred in a recent case, in a box under my bed. The
possible circumstances cannot be set out exhaustively
13
and it is impossible to lay down any general rule on the
point. But there must be something in the evidence to
satisfy the court that the person who is physically in a
position to deal with the thing as his own had the
intention of doing so.”
And further down on the same pg. he added:
“Here again knowledge cannot be proved by direct
evidence, it can only be proved by inference from the
surrounding circumstances. Again the possible variety
of circumstances which will support such an inference
is infinite.”
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 (1972)
1 MLJ 120 and Public Prosecutor v. Badrulsham bin Baharom
(1988) 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.
And in relation to drug found in a vehicle Shankar J in Pendakwa
14
Raya v. Kang Ho Soh (1992) 1 MLJ 360, after considering a
number of authorities, at pg. 371 stated:
“…. those cases do not decide that in all cases a person
who is in sole charge of a vehicle cannot be found to be
in possession of articles being carried in it. As
Thomson J himself said in Tong Peng Hong v. PP at p
233:
‘If something be 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 …’
Again, at p 234:
‘I am not saying for one moment that a drug
may not be found in a vehicle in such
circumstances as would in the absence of
disproof or explanation lead the court to the
conclusion, quite independently of any
15
statutory presumption, that it was in the
possession of the person in control of the
vehicle.’ ”
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 [2000] 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.
In this regard it is pertinent to refer to the observation of the
Singapore Court of Appeal in Zulfikar bin Mustaffah v. PP [2001]
1SLR 633, at pg. 639:
“21. 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
16
had physical control of the drugs at the relevant time;
the prosecution must also prove that the accused
possessed the requisite knowledge as to the contents of
what he was carrying: see Warner v. Metropolitan
Police Commissioner [1969] 2 AC 256; Tan Ah Tee &
Anor v PP [1978-1979] SLR 211; [1980] 1 MLJ 49. In
the course of the appeal before us, counsel for the
appellant relied heavily on the fact 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 bundles.
22. 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
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 sealed in opaque wrappings. Rather, the court
must appraise the entire facts of the case to see if the
accused’s claim to ignorance is credible. As Yong
17
Pung How CJ remarked in PP v. Hla Win [1995] 2 SLR
424 (at pg. 438):
‘In the end, the finding of the mental state of
knowledge, or the rebuttal of it, is an
inference to be drawn by a trial judge from
all the facts and circumstances of the
particular case, giving due weight to the
credibility of the witnesses.’ ”
(Emphasis added)
In Ramis a/l Muniandy v Public Prosecutor [2001] 3 SLR 534, the
Singapore Court Appeal again propounded on the question of
knowledge necessary to established possession and at pg. 541
states:
“Knowledge of drugs
The starting point in the consideration of this
issue was that we had already concluded that the drugs
was already on Ramis’s motorcycles when he entered
the vicinity and that he had physical control of the
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drugs. In the absence of any reasonable explanation by
Ramis, these facts were sufficient to lead to a strong
inference that Ramis knew that the bag found on his
motorcycle contained drugs.
In Tan Ah Tee (supra), Wee Chong Jin CJ,
delivering the judgment of the court, said ([1978-1979]
SLR 211 at 217-218; [1980] 1 MLJ 49 at pg. 52):
‘Even if there were no statutory
presumptions available to the prosecution,
once the prosecution had proved the fact of
physical control or possession of the plastic
bag and the circumstances in which this was
acquired by and remained with the second
appellant, the trial judges would be justified
in finding that she had possession of the
contents of the plastic bag within the
meaning of the Act unless she gave an
explanation of the physical fact which the
trial judges accepted or which raised a doubt
in their minds that she had possession of the
contents within the meaning of the Act.’ ”
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The issue of knowledge necessary to establish possession came to
be considered by the English House of Lords in the case of Warner
v. Metropolitan Police Commissioner [1968] 2 All E.R. 356, which
was considered and relied upon by the Singapore Court of Appeal
in Zulfikar bin Mustaffah v. PP (supra). In Warner the following
question was posed to their Lordships:
“Whether for the purpose of section 1 of the Drugs
(Prevention of Misuse) Act, 1964, a defendant is
deemed to be in possession of a prohibited substance
when to his knowledge he is in physical possession of
the substance but is unaware if its true nature.”
At pg. 367 Lord Reid addressed the issue as follows:
“The object of this legislation is to penalise possession
of certain drugs. So if mens rea has not been excluded
what would be required would be the knowledge of the
accused that he had prohibited drugs in his possession.
It would be no defence, though it would be a mitigation,
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that he did not intend that they should be used
improperly. And it is commonplace that, if the accused
had a suspicion but deliberately shut his eyes, the court
or jury is well entitled to hold him guilty. Further, it
would be pedantic to hold that it must be shown that the
accused knew precisely which drug he had in his
possession. Ignorance of the law is no defence and in
fact virtually everyone knows that there are prohibited
drugs. So it would be quite sufficient to prove facts
from which it could properly be inferred that the
accused knew that he had a prohibited drug in his
possession. That would not lead to an unreasonable
result.”
In the same case Lord Morris answered the question in following
manner:
“If there is assent to the control of a thing, either after
having the means of knowledge of what the thing is or
contains or being unmindful whether there are means of
knowledge or not, then ordinarily there will be
possession. If there is some momentary custody of a
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thing without any knowledge or means of knowledge of
what the thing is or contains then, ordinarily, I would
suppose that there would not be possession. If,
however, someone deliberately assumes control of
some package or container, then I would think that he is
in possession of it. If he deliberately so assumes
control knowing that it has contents, he would also be
in possession of the contents. I cannot think that it
would be rational to hold that someone who is in
possession of a box which he knows to have things in it
is in possession of the box but not in possession of the
things in it. If he had been misinformed or misled as to
the nature of the contents, or if he had made a wrong
surmise as to them, it seems to me that he would
nevertheless be in possession of them.”
Reverting to the present case, it is therefore incumbent upon the
court to scrutinize the entire evidence before the court to see
whether an inference can be drawn against the respondent that he
knew about the drug in the 3 packages found in the car. It is not in
dispute that the 3 packages were found hidden in the car under the
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driver’s seat and under the front passenger’s seat. He was alone in
the car at the material time. One other important factor of
relevance is that the car had been in his possession for the past 7
months prior to his arrest.
It is true that the trial Judge did not make any finding on the issue
of knowledge necessary to establish possession of the drugs, as he
relied on the cautioned statement in coming to his finding. The
Court of Appeal on the facts correctly found that there was
sufficient evidence to find the respondent to be in custody and
control of the 3 packages found in the car and relying on the
presumption under s 37(d) of the Act the Court of Appeal went on
to hold that the respondent was in presumed possession of the
drug.
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
23
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 PW5 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.
The next question is whether there is evidence of trafficking by the
respondent in the said drug. In this case the amount of cannabis
involved is 4,826.9 grammes in weight, which is well in excess of
200 grammes, thus triggering the statutory presumption of
trafficking as provided in s 37(da) of the Act. Therefore, on the
facts of this case it is our finding that the trial Judge had correctly,
24
albeit for different reasons, called upon the respondent to enter
upon his defence on the charge.
The Defence
We have set out the respondent’s defence in the earlier part of this
judgment. To recapitulate he said that on the day in question, he
came to Johor Bahru, from Kuala Terengganu to collect cloth
samples. The 3 packages found in the car was put there by one
Indonesian man by the name of Jiri. This took place when he met
Jiri at a Mamak stall in Taman Sentosa, Johor Bahru. Jiri told him
they contained cloth samples. He did not know the actual contents
of the 3 packages. After that he proceeded to Johor Bahru to
collect more cloth samples from Jiri, but before that happened he
was arrested by the police. He told the court that the cloth samples
were meant for his employer in Kuala Terengganu. He worked for
his employer on a commission basis. The learned trial Judge in his
judgment pointed out that the name Jiri, was only raised for the
first time in his defence. It is also important to note that this
25
alleged meeting with Jiri, took place at around 3.30 am on
9.5.1996.
Finding of this Court on the defence raised
It is trite law that the court need not be convinced of the defence
story to entitle the accused to an acquittal. The burden of proof on
the accused is indeed a light one which is merely to cast a
reasonable doubt on the prosecution’s case. (See Illian & Anor v.
Public Prosecutor (1988) 1 MLJ 421). In the present case the
respondent’s defence was that although he knew about the
existence of the three packages in the car, which he claimed were
put in the car by Jiri, but he had no knowledge that they contained
drug. He was informed by Jiri that they contained cloth samples.
Upon close scrutiny we find his story to be highly improbable for
the following reasons. Firstly, if it is true that he came to Johor
Bahru to collect cloth samples from Jiri, the question is what was
the need to meet Jiri at around 3.30 in the morning. Certainly this
could have been done at a more convenient time. Secondly, if the
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3 packages contained cloth samples as claimed by the respondent
the question arises why should they be hidden under the seats of
the car as found by the police. The manner in which the three
packages were concealed in the car goes to show that the appellant
knew of the content of the three packages. In the circumstances,
we find his story about the meeting with Jiri to be highly fictitious.
It was no more than an attempt to show that he had no knowledge
of the content of the 3 packages. In the final analysis, we are
satisfied beyond reasonable doubt that the respondent had custody
and control of the three packages and he knew that they contained
drug. Having so found the next issue is whether the defence had,
on the balance of probabilities, successfully rebutted the
presumption of trafficking under s 37(da) of the Act. (See P.P. v.
Yuraray (1969) 2 MLJ 89 as applied in Ng Chai Kem v. P.P.
(1994) 2 MLJ 210). In the present case the respondent did not
offer any explanation whatsoever which goes towards rebutting the
said presumption. It is our finding, therefore, that the presumption
under s 37(da) of the Act stands unrebutted.
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The Decision of this Court
On the above premises the appeal herein is allowed and
accordingly the order of the Court of Appeal is hereby set aside.
The conviction and sentence imposed by the High Court are
accordingly reinstated and affirmed.
Dated: 22nd June 2007
( DATO’ ARIFIN BIN ZAKARIA )
Federal Court Judge
Malaysia
28
Date of Hearing : 1.8.2006
Date of Decision : 22.6.2007
Counsel for Appellant : Manoj Kurup
Timbalan Pendakwa Raya
Solicitors for Appellant : Peguam Negara Malaysia
Counsel for Respondent : Hazman Ahmad
Solicitors for Respondent : Tetuan Raja Badrol Hazman