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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



PENDAKWA RAYA ------ RESPONDEN




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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


Introducti on
[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, J alan 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 prosecutions case, the
learned J udicial 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:
Bahawa kamu pada 12 Mei 2008 jam lebih kurang 10.30 malam, di
rumah No: 53. Jalan Sembilang 1, Taman Teluk Pulai, Klang, di dalam
daerah Klang, di dalam Negeri Selangor Darul Ehsan telah memiliki
dadah berbahaya, iaitu candu mentah seberat sejumlah 8181 gram
tanpa kebenaran yang sah di bawah Akta Dadah Berbahaya 1952
atau mana-mana peruntukan di bawahnya, dan oleh yang demikian
kamu telah melakukan suatu kesalahan yang boleh dihukum di
bawah section 39A(2) Akta Dadah Berbahaya 1952.
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[3] The appellant claimed trial to the amended charge and gave
evidence under oath. At the end of the defence case, the learned J C 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 J C.
The case for the prosecuti on
[6] Within a narrow compass, the prosecutions 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.
[7] The police party forcefully broke into the said house through the
front door after they failed to secure any response from the occupants of
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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 J ing 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 J ing. SP4 recovered at the store room
downstairs a box (exhibit P5 ) with the words Mi nyak 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:
(a) an electricity bill (exhibit P57 );
(b) an income tax return (exhibit P59 );
(c) a letter from EON bank (exhibit P60 );
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(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 J ing and there he seized the birth certificate of the
appellant (exhibit P56 ), the passport of Chen J ing (exhibit P75 ), and
the marriage certificate of Chen J ing 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 J ing was his tenant. Chen J ing had rented a room in
the said house.
[14] The prosecution did not call Chen J ing as a witness and her 112
statement was also not tendered.
[15] On these set of facts, the learned J C 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
[16] The main plank of the appellants defence was that he had no
knowledge nor possession of the raw opium in the said room of the said
house. The appellant testified that the said room of the said house was also
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accessible to Chen J ing, Goo Aik Hiang and Khoo Teck Huat. The
appellant also testified that he occupied the master bedroom upstairs whilst
Chen J ing and her husband occupied the room where the al at penghi sap
candu was found. These rooms were identified and described as rooms
G and F respectively in the sketch plan before the learned J C.
Anal ysi s
[17] The evidence showed that Chen J ing 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 J ing 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 J ing 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 J ing 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?
(b) whether she was in possession of the raw opium in question?
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(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 J C in her written grounds of judgment made specific
findings of fact pertaining to Chen J ing and her husband in relation to the
said house. The learned J C factually held that both Chen J ing 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
J ilid 2, the learned J C 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:
Walau bagaimanapun berdasarkan fakta khusus dan hal keadaan
kes ini, ketiadaan beliau tidak menunjukkan bahawa OKT tidak
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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.

[21] We are constrained to say, with respect, that the learned J C had
gone off tangent and had completely misdirected herself when she held
that the absence of Chen J ing had no consequence and that based on the
evidence adduced it was sufficient to hold that the appellant had knowledge
and control of the raw opium in the said house. Now, since the learned J C
had earlier found that Chen J ing was a tenant and occupant of the said
house and had free access to the entire house including the room where
the raw opium was found by SP4, it can also be argued that Chen J ing too
just like the appellant had knowledge, custody, control and possession of
the raw opium in the said room.
[22] Without putting Chen J ing to the stand and subjecting her to
cross-examination, there is a wide gap in the prosecutions case. We
acknowledge that the prosecution has the full and complete discretion to
decide as to whether Chen J ing should be called as a witness. But if the
failure to call Chen J ing would undermine the prosecutions case and
prevent the prosecution from proving its case beyond reasonable doubt,
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then the Court has no choice but to acquit the appellant (Ti Chuee Hiang v
Publ ic Prosecutor [1995] 2 MLJ 433, S.C.; and Publi c Prosecutor v
Asnawi bi n 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 J ing was in possession of the raw opium;
(b) that Chen J ing was in joint possession of the raw opium together
with her husband bearing in mind that the learned J C had earlier
found that both of them had free and untramelled access to the
said house;
(c) that Chen J ing 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 J ing to bridge the gap in the prosecutions
case. It cannot be denied that Chen J ing 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 J ilid 2):

BON UNTUK MEMBERI KETERANGAN DI BAWAH SEKSYEN 118
KANUN PROSEDUR JENAYAH

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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.
Bertarikh 29HB MEI 2008

Di hadapan
Sgd. (Illegible) Sgd: (Illegible)
MAJISTRET Tandatangan
MAHKAMAH MAJISTRET
KLANG.

[25] Inspector Bakar bin J asa (SP8) was the investigating officer of
the case. Under cross-examination, SP8 admitted that a witness statement
had been recorded from Chen J ing. At page 70 of the appeal record at J ilid
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.

[26] The prosecution led evidence to show that concerted attempts to
secure the attendance of Chen J ing in Court were futile. SP8 testified about
the various efforts and steps undertaken to trace and locate Chen J ing and
her husband but to no avail. In our judgment, all these futile efforts would
certainly qualify the admission of the section 112 statement of Chen J ing to
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be admitted under section 32 of the Evidence Act 1950. But unfortunately
no reason was proffered by the prosecution as to why Chen J ings 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 J ing in person but rather because of the
failure of the prosecution to tender the section 112 statement of Chen J ing
bearing in mind that the prosecution had in its possession the section 112
statement of Chen J ing. We agree with the submission of learned counsel
and towards this end it is opportune to refer to the case of Munusamy v.
Publ ic 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 J ing 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.
[28] The factual matrix showed that the appellant was not alone in the
said house when SP4 and his police party gained access inside the said
house. Chen J ing and a child of about 4 years old were also there inside
the said house. Yet, the learned J C invoked the presumption under section
37(d) of the DDA against the appellant and found him to be in possession
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of the raw opium. In our judgment, before the learned J C could invoke
section 37(d) of the DDA against the appellant the prosecution ought to
have excluded Chen J ing 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 J ing as a witness or if the prosecution were to tender the
section 112 statement of Chen J ing. Alas, all these were not done. The
Federal Court in Ibrahi m 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 J ing or even Chen J ings 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.
[29] It is trite law that the onus is not on the appellant to prove the
possibility of access to the raw opium by others but rather that onus falls on
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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
Publ ic 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 J C.
Secondly, after the appellants defence was called for the charge of
possession, the additional appeal record do not show that the three
alternatives had been explained to the appellant. Thirdly, the appellant was
not accorded the legal right to recall and examine witnesses based on the
amended charge as required under section 162 of the CPC.
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[32] The learned J C 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 J C 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 J C to
infer that the appellant had knowledge of the drugs inside the said house
on account of the appellants failure to open the front door to the said
house.
[34] Finally, there were wrong inferences made by the learned J C
based on speculations which were not supported by the available evidence.
Her Ladyship speculated that if the drugs inside the said house belonged to
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Chen J ings 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 J C 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
J udge, Court of Appeal,
Malaysia


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Counsel


(1) For the Appellant Accused : Mr. Hisyam Teh Poh Teik
with Mr. S. Parameswaran
and Mr. J ayaprakash


Solicitors : Messrs Teh Poh Teik & Co
Advocates & Solicitors
J ohor Bahru, J ohore



(2) For the Prosecution Respondent: DPP Miss Mangajarkarasi
a/p Krishnan
Attorney-Generals Chambers
Putrajaya






Cases referred to in this ex tempore judgment:


(1) Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433, S.C.

(2) Publ ic Prosecutor v Asnawi bi n Yusuf [2011] 4 MLJ 16, CA.

(3) Munusamy v. Publi c Prosecutor [1987] 1 MLJ 492, SC.

(4) Ibrahi m Mohamad & Anor v. PP [2011] 4 CLJ 113, FC.

(5) Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 3 MLJ 1,
SC.