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DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU

DI DALAM NEGERI JOHOR DARUL TA'ZIM

PERBICARAAN JENAYAH NO: (MT-5) 45-67, 68 & 69 2005

PENDAKWA RAYA

LAWAN

1. CHAN TAI WEE

2. VIVIAN YEO SIAW PING

DI DALAM MAHKAMAH TERBUKA

DI HADAPAN Y.A. DATO' HUE SIEW KHENG

PESURUHJAYA KEHAKIMAN

GROUNDS OF JUDGMENT

1. The following charges were preferred against both accused:

(i) First charge:

Bahawa kamu bersama-sama pada 7 Julai 2004 jam lebih kurang6.00 petang, di tempat letak kereta Pelangi Leisure Mall, TamanPelangi, di dalam daerah Johor Bahru, di dalam Negeri Johor DarulTazim, dengan niat bersama telah didapati mengedar dadahberbahaya iaitu 128.78 gram 3-4 Methylenedioxymethamphetamine(MDMA), dan dengan itu kamu telah melakukan suatu kesalahan dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh

JB-MT5-45-67-68-69-2005/PP v Chan Tai Wee & 1YL


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dihukum di bawah Seksyen 39B(2) Akta yang sama dibacabersama Seksyen 34 Kanun Keseksaan.

(ii) Second charge:

Bahawa kamu bersama-sama pada 7 Julai 2004 jam lebih kurang9.00 malam, di rumah No. 21, Jalan Jerau 5, Taman Pelangi, didalam daerah Johor Bahru, di dalam Negeri Johor Darul Tazim,telah didapati memiliki dadah berbahaya iaitu 6.6 gramNimetazepam, dan dengan itu kamu telah melakukan suatukesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952dan boleh dihukum di bawah Seksyen 12(3) Akta yang sama.

(iii) Third charge:

Bahawa kamu bersama-sama pada 7 Julai 2004 jam lebih kurang9.00 malam, di rumah No. 21, Jalan Jerau 5, Taman Pelangi, didalam daerah Johor Bahru, di dalam Negeri Johor Darul Tazim,dengan niat bersama telah didapati mengedar dadah berbahayaiaitu 56.1 gram 3-4 Methylenedioxymethamphetamine (MDMA),dan dengan itu kamu telah melakukan suatu kesalahan di bawah

Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan bolehdihukum di bawah Seksyen 39B(2) Akta yang sama dibacabersama Seksyen 34 Kanun Keseksaan.

(iv) Fourth charge:

Bahawa kamu bersama-sama pada 7 Julai 2004 jam lebih kurang9.00 malam, di rumah No. 21, Jalan Jerau 5, Taman Pelangi, di

dalam daerah Johor Bahru, di dalam Negeri Johor Darul Tazim,dengan niat bersama telah didapati mengedar dadah berbahayaiaitu 955.8 gram Ketamine, dan dengan itu kamu telah melakukansuatu kesalahan di bawah Seksyen 39B(1)(a) Akta DadahBerbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2)

Akta yang sama dibaca bersama Seksyen 34 Kanun Keseksaan.



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house). The second accused was also brought along. Using thebunch of keys recovered from the pocket of the first accused, SP7and his men gained access to the said house. There were 3 rooms inthe said house. A search was made in respect of the first room whichwas unlocked. 4 strips of Erimin 5 totaling 40 pills were recovered inthe drawer of the plastic cabinet as shown in photograph Ex. P18.This is the subject matter of the second charge.

6. SP7 further testified that the second room was locked. He thenasked the first accused for the key. SP7 said the first accused thenwent to the plastic cabinet in the hall as shown in photographs Ex.P18E and P18Fwhere he produced a key and gave it to SP7. Drugswere recovered from the second room. The various items seizedfrom the second room are as listed in the search list (Ex. P33). ABorang Serah Menyerah (Ex. P34)was also prepared. These items

are the subject matter of the third and fourth charge.

7. For ease of reference and to obviate confusion, I will refer to thecharges as submitted by the learned defence counsel: i.e. the firstcharge will be referred to as the car charge, the second charge asthe first room charge and the third and fourth charge as the secondroom charge.

The car charge

8. It is submitted by the defence that the prosecution has not made outa prima facie case against the second accused for the followingreasons:



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i) She was a mere passenger and as such could not be said tohave custody, control or possession of the car.

ii) There is no evidence of any physical nexus between the giftwrapped box and her.

iii) The only evidence is that of proximity which cannot be equatedwith possession although learned counsel conceded that incertain circumstances proximity can give rise to an inference ofknowledge as held in the cases ofSurenthiran a/l Selavarajah vPP [2005] 3 AMR 56 and PP v Karim AB Jabar [2008] 5 CLJ173. However, it was argued that the facts of the two (2) citedcases are dissimilar to the present case. In Surenthirans case(supra) , the packet of drugs was positioned between the feet ofthe appellant while he was driving and he was also the owner ofthe car. In Karims case (supra) , he was the sole occupant ofthe car and the package was on the front passenger seat. Theamount of cannabis was a hefty 103.84 kilograms.

iv) The conduct of the second accused, which was challenged,was attributed to the fact that SP7 and his men were not inuniform and they had advanced upon the occupants of the carsuddenly. The action of SP7 and his men in suddenly blockingand surrounding the accused would certainly, it was submittedgive rise to anxiety and confusion. It was submitted that theconduct of the accused here was not one of fright or struggle toevade arrest and as held by the Federal Court in Parlan Dadehv PP[2009] 1 CLJ 717-

Conduct like the flight of an accused is a more positive act

and is easily established. On the other hand conduct like the

accused looking stunned, nervous, scared or frightened is

very often a matter of perception and more detailed evidence

may be required.



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v) It was further submitted that as the drugs were found in the car,the statutory presumption in section 37(d) of the DangerousDrugs Act (DDA) 1952 did not apply. The case ofPP v Lin Lian

Chen [1992] 2 MLJ 561 was relied on.

vi) In respect of the first accused, it was submitted that:

a) though the first accused is the driver and owner of the car

in question, the mere act of transporting does not amount

to trafficking (see Ong Ah Chuan v PP[1981] 1 MLJ 64);

b) there was no overt act on the part of the first accused;

neither was there any physical nexus or contact between

the first accused and the gift wrapped box; and

c) the same argument was adopted in respect of theconduct of the first accused.

vii) As for the second, third and fourth charges in respect of thedrugs found in the first and second room of the house the mainthrust of the defence rested upon what learned defence counselreferred to as the Siow Long factor.

viii) The argument was advanced that a person by the name of

Siow Long also had access to the said house. It is thecontention of the accused that Siow Long was the actualtrafficker and that Siow Long was not a fictitious character but areal, live person because of the following:



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9. It is not disputed that the drugs in respect of the car charge wererecovered somewhere near the footrest of the front passenger seatthough the exact placement is disputed. It was also not disputed thatthe car belonged to the first accused.

10. With regard to the contention that possession cannot be fastenedonto the second accused because she was a mere passenger andtherefore had no custody, control or possession of the car, I am of theview that the fact that the second accused had no custody, control orpossession of the car by itself does not negative possession inrespect of the drugs if there is evidence to the contrary.

11. In this case, the box containing the impugned drugs were giftwrapped and point to an attempt at concealment under the guise ofan innocuous gift. Both accused were not strangers as theevidence showed, they were co-habiting at the material time.

12. I agree with the submission of the defence that the fact that they werepanic stricken and in a state of confusion because they found

themselves suddenly surrounded by a group of people did notconclusively prove guilty knowledge.

13. However, taking the evidence in its totality, I am satisfied that theelement ofmens rea possession has been proved by the prosecutionand that both accused were acting in concert at all times.

14. In respect of the drugs found in the house, the evidence led by theprosecution showed that the tenancy agreement Ex. P30 bore onlythe names of SP6 the landlady and the first accused as the tenant.SP6 had testified that the keys to the house were given to bothaccused.



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15. PW7 had given evidence that the keys to the house were recoveredfrom the first accused who opened the door of the house with thesekeys when brought there by the police party.

16. I agree with the defence that the evidence led by the prosecution withregard to the key to the second room to be inadmissible as no cautionwas administered to the second accused.

17. I find that there is a nexus between the drugs that were recoveredfrom the car with the drugs recovered from the house as gift wrappingpapers similar to the wrapper on the box that contained the drugs

found in the car were also found in the house. The wrapping paperswere tendered as Ex. P49AandP49B.

18. The prosecutions contention that Siow Long did not exist wassupported by the evidence of the photographs taken of the secondroom which the accused claimed to be occupied by Siow Long. Thephotographs Ex. P18NandP18O show that there are no clothings orpersonal effects in the room and appear to be not lived in.

19. Viewed in its totality, I find that there is no credible evidence thatSiow Long is a real person and I find that mens rea possession ofthe drugs recovered from both rooms of the house have been provedby the prosecution.

Trafficking

20. Trafficking is defined in section 2 of the Act as-

trafficking includes the doing of any of the following acts, that is to

say, manufacturing, importing, exporting, keeping, concealing,

buying, selling, giving, receiving, storing, administering,



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transporting, carrying, sending, delivering, procuring, supplying or

distributing any dangerous drug

21. Trafficking was explained by Lord Diplock in the off-cited case ofOng

Ah Chuan v PP[1981] 1 MLJ 64 as follows:

Proof of the purpose for which an act is done, where such purpose

is a necessary ingredient of the offence with which an accused is

charged, presents a problem with which criminal courts are very

familiar. Generally, in the absence of an express admission by the

accused, the purpose with which he did an act is a matter of

inference from what he did. Thus, in the case of an accused

caught in the act of conveying from one place to another controlled

drugs in a quantity much larger than is likely to be needed for his

own consumption the inference that he was transporting them for

the purpose of trafficking in them would, in the absence of any

plausible explanation by him, be irresistible even if there were no

statutory presumption such as is contained in section 15 of the

Drugs Act.

As a matter of common sense the larger the quantity of drugsinvolved the stronger the inference that they were not intended forthe personal consumption of the person carrying them

22. In respect of the first charge, which is 128.78 grams of MDMA theweight is well above the weight which triggers the presumption undersection 37(da) of the Dangerous Drugs Act 1952. The same appliesfor the third and fourth charge.

23. As the quantity of the drugs found in their possession is much largerthan is likely to be needed for their own consumption the inferencethat they were transporting (in respect of the first charge) and keepingthem for the purpose of the trafficking (in respect of the third and

fourth charge), in the absence of any plausible explanation by them,is irresistible and should be drawn.

24. As for the second charge, the prosecution has clearly proved a caseof possession against them as the drugs were found concealed in adrawer in their room.



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25. Being satisfied that aprima facie case had been proved in respect ofeach charge, both accused were called to enter upon their defenceon all 4 charges.

The defence

26. Both accused elected to give evidence on oath. Essentially theirdefence was that they had no knowledge of the drugs found in the carand in both rooms of the house and hence could not be said to be inpossession of the drugs seized.

27. Briefly, the defence was that the second accused was the fianc ofthe first accused and that she was three (3) months pregnant with hischild. At the material time, both of them were working at a disco, hewas a bar tender and she as a waitress.

28. They were living together in the house raided and were occupying thefirst room whilst the second room was occupied by Siow Long, an oldfriend of the first accused.

29. On the day in question both of them had gone to the Leisure Mall atTaman Pelangi to do some grocery shopping in preparation for thevisit by the second accuseds mother the next day who was bringingalong with her, the second accuseds 1 year old child. They weregoing to the Giant supermarket at Leisure Mall to purchase items likemilk powder and diapers for the child.

30. Both accused said they were shocked when the gift box that was

recovered from the car contained drugs as they had no knowledge ofthe drugs.

31. According to the first accused he had told SP7 that Siow Long hadborrowed his car that day and had just returned the car to him beforethey went to Leisure Mall. Both denied ownership of the gift box.



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32. The first accused denied that he had used the key to the secondroom, which was locked, to open the second room, because the roomwas occupied by Siow Long.

33. Both accused denied any knowledge of the drugs recovered from thesecond room and their room i.e. the first room, which was not locked.

34. The defence also relied on the cautioned statement of the secondaccused (D55) to corroborate their evidence that Siow Long is not afictitious character.

The car charge

35. To corroborate their evidence that their purpose in going to LeisureMall was for the innocuous purpose of grocery shopping and nottrafficking, the second accuseds mother (SD3) was called. SD3

confirmed that she did in fact arrive in Johor Bahru from Kuching withher granddaughter on 8.7.2004 at about 9.00 p.m. via Air Asia. SD3said she waited for the second accused at the Senai Airport till about12.00 midnight after which she took a taxi to lodge at a hotel.

36. The second accused in her evidence said she had requested theinvestigating officer (SP8) to check whether her mother had arrived.SP8 however said he could not remember.

37. As stated earlier, the main thrust of the defence was the Siow Longfactor. At the close of the prosecutions case, I found no credibleevidence of his existence, other than D55, an exculpatory statementof the second accused.



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38. However, at the defence stage, both accused testified that they hadprior to moving house to the house in question from where the drugswere recovered, Siow Long had already been staying with them at ahouse in Taman Sentosa. The reason for shifting was because thetenancy in respect of the Taman Sentosa house had expired.

39. The move from the house in Taman Sentosa to Taman Pelangiinvolved both accused, Siow Long, the second accuseds brotherFabian Yeo and three (3) other workers.

40. Fabian Yeo was called as a defence witness. He confirmed he hadmet Siow Long in the Taman Sentosa house and that Siow Long was

also involved in their shifting house.

41. Taking these pieces of evidence together and also the fact that SiowLong had been put to SP7 when SP7 was being cross-examined andthe cautioned statement (D55) of the second accused, and havingconsidered the fact that the I.O. (SP8) failed to conduct a properinvestigation into the existence of Siow Long I find that it is more thanprobable that Siow Long Is not a fictitious character.

42. That being so, I find the evidence of the accused that Siow Long

occupied the second room and kept the room locked at all times to beneither incredible nor improbable. The drugs that are the subjectmatter of the third and fourth charge and the wrapping paper werefound in the second room which the prosecution has already provedwas locked. As for the drugs in the first room, since the room was notlocked, the defence have raised a reasonable doubt as to whetherthey could have been planted by Siow Long.

43. The first accused had testified under oath that Siow Long had

borrowed his car before he and the second accused left for LeisureMall. Both of them denied seeing the box when they were in the car.

44. The position of the box in the car was disputed by the accused. Bothdisputed SP7s evidence that the box was found at Y as marked by



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SP7. They insisted they saw SP7 recovering the box from the spotmarked Z in Ex. P16D which was a position not as visible as Y.

45. Even though SP7 was challenged on this in his cross-examination, no

other police officer involved in the arrest of the accused was called tocorroborate SP7s evidence that the box was indeed recovered fromY.

46. Due to this conflict of evidence, as held in Muhamad Yatim bin AbuBakar v PP[1950] MLJ 57, the correct approach to adopt would be todecide whether the version of the accused had raised a reasonabledoubt and not on the basis of which side had spoken the truth.

47. Having considered all the above, I was satisfied that the defence hadraised a reasonable doubt on the prosecutions case in all the four (4)charges and accordingly acquitted and discharged both accused ofall four (4) charges.

(DATO HUE SIEW KHENG)Judicial CommissionerHigh Court MalayaJohor Bahru



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DATE: 1st JANUARY 2010

KAUNSEL

En. Akram bin Mohd. Gharib (TPR), En. Mohd. Daud Ismail (TPR) - Pej. Penasihat

Undang-Undang Negeri Johor, Nusajaya bagi pihak pendakwaan.

En. Hisham Teh Tetuan Teh Poh Teik & Co., Peguambela dan Peguamcara, JohorBahru bagi pihak kedua-dua tertuduh.

MT5-45-67,68,69-2005/ChanTaiWee&1YL/DHSK/zj


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