DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN)
RAYUAN JENAYAH NO: B-05-50 TAHUN 2011
[MAHKAMAH TINGGI SHAH ALAM NO: 45-155 TAHUN 2008]
ANTARA
PENDAKWA RAYA --- PERAYU
DAN
ANG KIAN CHAI --- RESPONDEN
RAYUAN JENAYAH NO: B-05-121 TAHUN 2011
[PERBICARAAN JENAYAH SELANGOR NO: 45-155 TAHUN 2008]
ANTARA
ANG KIAN CHAI --- PERAYU
DAN
CORAM:
(1) ABDUL MALIK BIN ISHAK, JCA (2) AZHAR BIN HJ MA’AH, JCA (3) AZIAH BINTI ALI, JCA
ABDUL MALIK BIN ISHAK, JCA
DELIVERING THE EX TEMPORE JUDGMENT OF THE COURT
Introduction
[1] This is an ex tempore judgment of this Court.
[2] The appellant was charged for trafficking in dangerous drugs, to wit, 8181 grammes of raw opium on 12.5.2008 at about 10.30 p.m. at house number 53, Jalan Sembilang 1, Taman Teluk Pulai, Klang, in district of Klang in the State of Selangor Darul Ehsan, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) punishable under section 39B(2) of the DDA. At the end of the prosecution’s case, the learned Judicial Commissioner (“JC”) held that a case of possession had been made out and reduced the charge to one of possession punishable under section 39A(2) of the DDA. That amended charge reads as follows:
[3] The appellant claimed trial to the amended charge and gave evidence under oath. At the end of the defence case, the learned JC found the appellant guilty of possession of 8181 grammes of raw opium and sentenced the appellant to 13 years imprisonment from the date of arrest and no whipping was ordered because the appellant was more than 50 years old.
[4] Aggrieved by that decision, the appellant lodged an appeal against his conviction and sentence on the amended charge.
[5] The prosecution too filed a cross-appeal in respect of the reduction of the trafficking charge to one of possession. The appeal of the prosecution was against the whole decision of the learned JC.
The case for the prosecution
[6] Within a narrow compass, the prosecution’s case may be stated as follows. Acting on information received, Sub-Inspector Yusuf bin Ishak (SP4) led a police party and raided a house on the date and time as per the amended charge. Initially, upon arrival, SP4 and his police party kept a close observation on the said house and they swung into action at approximately 10.30 p.m.
the said house to have both the front grille and the front wooden door opened.
[8] The appellant was at the hall of the said house at the material time and he was placed under arrest. A female Chinese lady from China by the name of Chen Jing who was about seven (7) months pregnant was also arrested on the upper floor of the said house. She had with her a child of about 4 years old. She was duly arrested outside the main bedroom.
[9] SP4 conducted a search of the said house and it was witnessed by both the appellant and Chen Jing. SP4 recovered at the store room downstairs a box (exhibit “P5”) with the words “Minyak Masak Saji”
written on it. SP4 examined the box and found inside it six black plastic packages of raw opium. The government chemist analysed and confirmed the raw opium to be dangerous drugs weighing 8181 grammes. SP4 also found a set of “alat penghisap chandu” in the cupboard of the next room.
All the room doors of the said house were not locked and the police party had easy access to it.
[10] In the hall, the following documentary exhibits in the name of the appellant were recovered:
(d) a letter from Bukit Rimau development (exhibit “P61”); and
(e) a letter from Genting (exhibit “P64”).
[11] And a water bill in the name of Khoo Teck Huat (exhibit “P58”) was also recovered.
[12] SP4 examined the main or master room of the said house occupied by Chen Jing and there he seized the birth certificate of the appellant (exhibit “P56”), the passport of Chen Jing (exhibit “P75”), and the marriage certificate of Chen Jing and her husband by the name of Goo Aik Hiang (exhibit “P76”).
[13] Investigations showed that the appellant was the owner of the said house and Chen Jing was his tenant. Chen Jing had rented a room in the said house.
[14] The prosecution did not call Chen Jing as a witness and her 112 statement was also not tendered.
[15] On these set of facts, the learned JC found that there was a prima facie case of possession under section 39A(2) of the DDA and called the appellant to enter his defence.
The defence of the appellant
accessible to Chen Jing, Goo Aik Hiang and Khoo Teck Huat. The appellant also testified that he occupied the master bedroom upstairs whilst Chen Jing and her husband occupied the room where the “alat penghisap candu” was found. These rooms were identified and described as rooms
“G” and “F” respectively in the sketch plan before the learned JC. Analysis
[17] The evidence showed that Chen Jing is a very material witness to the unfolding of the factual matrix of the whole case bearing in mind that she was also arrested and was a suspect but she was subsequently released. Without a doubt, Chen Jing was a tenant and an occupant of the said house and she had access to the unlocked room where the raw opium was found.
[18] If produced as a witness by the prosecution or if offered for cross-examination to the defence, Chen Jing would be able to give a true account of what had transpired in the said house in relation to the raw opium. In our judgment, if called, Chen Jing would be able to answer the following nagging questions:
(a) whether she had knowledge of the presence of the raw opium in the said room?
(c) whether her husband by the name of Goo Aik Hiang had knowledge and/or possession of the raw opium in the said room? (d) whether Khoo Teck Huat had knowledge and/or possession of
the raw opium in the said room?
(e) whether she was jointly in possession of the raw opium together with the appellant or together with her husband or together with Khoo Teck Huat?
[19] The learned JC in her written grounds of judgment made specific findings of fact pertaining to Chen Jing and her husband in relation to the said house. The learned JC factually held that both Chen Jing and her husband were occupants of the said house and that they had free and complete access to the said house. At page 136 of the appeal record at Jilid 2, the learned JC had this to say in her written grounds of judgment:
”Mengikut keterangan, pihak polis telah berusaha berbagai cara untuk mencari dan mengesan Chen Jing dan suaminya untuk dijadikan saksi-saksi pendakwaan tetapi gagal. Jika pun Mahkamah tidak membuat sebarang andaian negatif ke atas kegagalan ini pada hakikatnya pada masa kejadian Chen Jing adalah penghuni dan mempunyai akses bebas di rumah tersebut. Di samping itu dengan ketiadaan suaminya Goo Aik Hiang sebagai saksi Mahkamah tidak dapat ‘rule out’ beliau juga sebagai penghuni dan mempunyai akses di rumah tersebut di mana dadah dan alatan menghisap dadah dijumpai.”
[20] Continuing at the same page and spilling over to page 137, her Ladyship had this to say:
mempunyai kawalan ke atas rumah, bilik dan barang-barang kes yang dijumpai di dalamnya pada masa serbuan dibuat dalam kes ini. Ketiadaannya hanya sekadar dia tidak dituduh bersama OKT mengikut siasatan yang dijalankan. Bagi Chen Jing setelah menjalankan siasatan pihak pendakwaan memilih untuk tidak mendakwanya bersama OKT. Dari fakta dan hal keadaan kes sama ada Chen Jing ada ataupun tidak, keterangan yang dikemukakan oleh pihak pendakwaan adalah mencukupi bahawa OKT mempunyai kawalan ke atas rumah tersebut serta pengetahuan dan kawalan ke atas barang-barang kes berkenaan.”
then the Court has no choice but to acquit the appellant (Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433, S.C.; and Public Prosecutor v Asnawi bin Yusuf [2011] 4 MLJ 16, CA).
[23] In our judgment, the following inferences should be construed against the prosecution in favour of the appellant:
(a) that Chen Jing was in possession of the raw opium;
(b) that Chen Jing was in joint possession of the raw opium together with her husband bearing in mind that the learned JC had earlier found that both of them had free and untramelled access to the said house;
(c) that Chen Jing together with the appellant had joint possession of the raw opium; and
(d) that the appellant alone was in possession of the raw opium. [24] At the very least the prosecution should have tendered the section 112 statement of Chen Jing to bridge the gap in the prosecution’s case. It cannot be denied that Chen Jing was put on a bond to appear as a witness. That bond was executed pursuant to section 118 of the Criminal Procedure Code (“CPC”) and the bond was marked as exhibit “P77” and it was worded in this way (see page 202 of the appeal record at Jilid 2):
Saya CHEN JING, T/Lahir: 29.5.1978 Pasport No. G 15039702, berumur 29 tahun, tinggal di Teluk Pulai, Klang Selangor, dengan ini adalah terikat untuk hadir di Mahkamah Tinggi di Shah Alam Selangor pada tarikh dan masa yang akan ditetapkan dan kemudiannya untuk memberi keterangan dalam perkara tentang pertuduhan di bawah seksyen 39B ADB 1952 terhadap ANG KIAN CHAI (52 tahun), KPT 550703-10-6255, dalam hal keingkaran saya ke atasnya, saya adalah terikat untuk melepaskan kepada YANG DIPERTUAN AGONG jumlah sebanyak RM20.00. the case. Under cross-examination, SP8 admitted that a witness statement had been recorded from Chen Jing. At page 70 of the appeal record at Jilid 1, the notes of evidence showed the following exchange:
“S: Dalam siasatan Inspektor telah maklumkan bahawa arahan untuk melepaskan Chen Jing kerana beliau tidak mempunyai pengetahuan seperti yang dinyatakan oleh Inspektor.
J: Benar. Bukan dia tiada pengetahuan kerana dia seorang penyewa dan tidak tahu berkenaan dadah tersebut keterangan daripada beliau negatif tidak tahu menahu berkenaan dadah tersebut.
S: Itu yang dikatakan di dalam statement. J: Benar.”
be admitted under section 32 of the Evidence Act 1950. But unfortunately no reason was proffered by the prosecution as to why Chen Jing’s section 112 statement was not tendered.
[27] Learned counsel for the appellant implored this Court to invoke section 114(g) of the Evidence Act 1950 not because of the failure of the prosecution to produce Chen Jing in person but rather because of the failure of the prosecution to tender the section 112 statement of Chen Jing bearing in mind that the prosecution had in its possession the section 112 statement of Chen Jing. We agree with the submission of learned counsel and towards this end it is opportune to refer to the case of Munusamy v. Public Prosecutor [1987] 1 MLJ 492, SC. There the Court said that the withholding of a material document and its non production would be fatal.
Likewise here, the withholding of section 112 statement of Chen Jing must be held to be detrimental to the case for the prosecution because that statement was a material document that would assist the Court to arrive at a just decision.
of the raw opium. In our judgment, before the learned JC could invoke section 37(d) of the DDA against the appellant the prosecution ought to have excluded Chen Jing from having custody or control of the raw opium at the material time. This exclusion can only be achieved if the prosecution were to call Chen Jing as a witness or if the prosecution were to tender the section 112 statement of Chen Jing. Alas, all these were not done. The Federal Court in Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113 held that the non-tendering of the statement of the owner of the vehicle or the failure of the prosecution to call the owner of the vehicle as a witness raised the pertinent question of who was in actual control of the vehicle immediately prior to the date of arrest. The Federal Court also held that it was the duty of the prosecution to exclude the possibility that other individuals could not have had custody or control of the vehicle immediately prior to the date of arrest. Now, applying the principles in that case to the present appeal at hand, we categorically say that the prosecution had failed to exclude the possibilities that Chen Jing or even Chen Jing’s husband (Goo Aik Hiang) or even Khoo Teck Huat whose name was on the water bill of the said house could have had custody or control or access to the raw opium.
the prosecution to prove to the Court that others could not possibly had access to the raw opium. To put it in another way, it is the duty of the prosecution to exclude such possibility and to prove that the appellant had exclusive possession of the raw opium (Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 3 MLJ 1, SC).
[30] In regard to the amended charge as reproduced in the early part of this judgment, we have this to say. It does not disclose any offence of possession because section 6 of the DDA has not been incorporated in the amended charge. Section 6 of the DDA relates to possession of raw opium while section 39A(2) of the DDA is the punishment section.
[31] To compound the matter further, the additional appeal record that was ordered by this Court on 11.1.2012 to be tendered as part of the existing appeal record showed glaring errors. Firstly, after the amended charge of possession was read to the appellant, there was nothing to show that the appellant’s plea was taken and recorded by the learned JC.
[32] The learned JC is entitled to amend the charge to one of possession provided the evidence adduced would support that amendment. Here, the evidence falls short of possession because others also had access to the raw opium.
[33] The learned JC misdirected herself when she adversely commented on the conduct of the appellant in not opening the front door of the said house to the police. It must be borne in mind that from the evidence of SP4, it is clear that SP4 did not identify himself as a police officer at the time when he knocked at the front door of the said house.
Consequently, the appellant did not know even though he was at the hall of the said house at the material time that the police were outside the front door and wanted the appellant to open the front door of the said house.
Furthermore, the evidence showed that after SP4 and his police party had gained access inside the said house, the appellant did not attempt to flee or put up a struggle. In our judgment, it is plainly wrong for the learned JC to infer that the appellant had knowledge of the drugs inside the said house on account of the appellant’s failure to open the front door to the said house.
[34] Finally, there were wrong inferences made by the learned JC based on speculations which were not supported by the available evidence.
Chen Jing’s husband or to Khoo Teck Huat then they would have kept the doors to their rooms locked when they were not inside the said house.
From the evidence adduced, all the doors to the rooms were not locked and thus the speculations of the learned JC were far fetched to say the least.
[35] For all these reasons, we are not inclined to record a verdict of guilty against the appellant based on such slender evidence. We accordingly allow the appeal of the appellant. The conviction and sentence for possession of the raw opium are hereby set aside.
[36] In regard to the cross-appeal by the prosecution, we dismiss it forthwith.
[37] We set the appellant free.
1.3.2012 Dato’ Abdul Malik bin Ishak Judge, Court of Appeal,
Counsel
(1) For the Appellant Accused : Mr. Hisyam Teh Poh Teik with Mr. S. Parameswaran and Mr. Jayaprakash
Solicitors : Messrs Teh Poh Teik & Co
Advocates & Solicitors
Johor Bahru, Johore
(2) For the Prosecution Respondent: DPP Miss Mangajarkarasi a/p Krishnan
Attorney-General’s Chambers
Putrajaya
Cases referred to in this ex tempore judgment:
(1) Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433, S.C.
(2) Public Prosecutor v Asnawi bin Yusuf [2011] 4 MLJ 16, CA.
(3) Munusamy v. Public Prosecutor [1987] 1 MLJ 492, SC.
(4) Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113, FC.
