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Malayan Law Journal Unreported/2018/Volume/Public Prosecutor v Bathumalai a/l Krishnan - [2018] MLJU
646 - 10 June 2018

[2018] MLJU 646

Public Prosecutor v Bathumalai a/l Krishnan

HIGH COURT (JOHOR BAHRU)
COLLIN SEQUERAH J
CRIMINAL TRIAL NO 45A-39-11 OF 2016
10 June 2018

Mohd Fazaly Ali bin Mohd Ghazaly (Lydiana Mansor, Mohammad Arif Aizuddin bin Masrom and Hani
Ismail with him) (The Law Chambers of Fazaly Ali) for the accused.

Nur Iffa Zarilla binti Abd Rahman (Deputy Public Prosecutor, Pejabat Penasihat Undang-Undang Negeri
Johor) for the respondent.

Collin Sequerah J:

GROUNDS OF DECISION

A) INTRODUCTION

[1] The Accused abovenamed was charged as follows :

" Bahawa kamu pada 6 April 2016 jam lebih kurang 11.00 pagi, di No 12, Jalan Impian Ria 12, Taman Impian Jaya,
Senai, dalam daerah Kulai, dalam Negeri Johor Darul Takzim telah didapati mengedar dadah berbahaya jenis
Cannabis berat bersih 451 gram. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 39B
(1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama.[#65533]?

B) PROSECUTION CASE

[2] On 6.4.2016 at around 11a.m. Inspector Calvin Louis Edmond (SP3) and a team of police from the
Jabatan Siasatan Jenayah Narkotik, IPD Johor conducted a raid on house no.12, Jalan Impian Ria 12,
Taman Impian Jaya, Senai, Johor.

[3] SP3 said that he found the back door of the house to be unlocked and he went in and identified himself
as a police officer to a male Indian seated on the sofa in the living room. The male Indian was later identified
as the Accused.

[4] A physical check on the Accused revealed nothing incriminating. A search conducted in the back room
nearest the kitchen revealed a pair of jeans lying on a bed. Inside one of the pockets of the jeans was found
one transparent plastic packet containing substance suspected to be Cannabis. Some personal
documentation of the Accused was also found in the pocket of the said jeans.

[5] Further examination conducted in the said room revealed a black plastic bag containing a white plastic
bag with the wordings "KFC[#65533]? and which in turn was found to contain compressed dried plant
material suspected to be Cannabis. This black plastic bag was found on the floor behind a cupboard.

[6] An Astro Bill bearing the said address of the house in the name of the Accused was also found in the
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living room of the said house. SP3 then brought the exhibits and the Accused back to the police station.

[7] The drug exhibits were sent to the Chemist Department and found to contain 3.05 grams nett of Cannabis
which were found in the pocket of the said jeans and 451 grams nett of Cannabis found in the plastic bag
behind the cupboard in the room.

[8] The latter formed the subject matter of the charge in this case while the former was the subject matter of
a charge under section 6 of the Dangerous Drugs Act 1952. Both charges were initially to be jointly tried
until the Accused pleaded guilty and was sentenced for the charge under section 6 of the Dangerous
Drugs Act 1952.

C) DUTY OF COURT AT THE END OF THE PROSECUTION CASE

[9] The duty of the court at the end of the prosecution case is set out in Section 180(1) of the Criminal
Procedure Code (CPC) which stipulates that when the case for the prosecution is concluded the Court shall
consider whether the prosecution has made out a prima facie case against the accused.

[10] The cases of PP v Dato' Seri Anwar Bin Ibrahim (No.3) [1999] 2 AMR 2017;; [1999] 2 MLJ 1, Looi Kow
Chai & Anor v PP [2003] 2 AMR 89, Balachandran v PP [2005] 1 CLJ 85 and PP v Mohd Radzi Bin Abu
Bakar [2005] 6 AMR 203 respectively lay down the proposition that at the end of the case for the
prosecution, their evidence must be subject to maximum evaluation in order to determine whether a prima
facie case is made out.

[11] In Looi Kow Chai v Public Prosecutor (supra), the Court of Appeal held :

"It therefore follows that there is only one exercise that a judge sitting alone under s 180 of the CPC has to undertake
at the close of the prosecution case. He must subject the prosecution evidence to maximum evaluation and to ask
himself the question: if I decide to call upon the accused to enter his defence and he elects to remain silent, am I
prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the
negative then no prima facie case has been made out and the accused would be entitled to an acquittal[#65533]?.

(Emphasis added)

C) ANALYSIS OF THE PROSECUTION CASE

Ingredients of the offence of trafficking

[12] In order for the prosecution to make out a prima facie case in respect of the charges against the
Accused, it is incumbent on them to prove the following ingredients. Firstly, that the drugs are dangerous
drugs within the meaning and definition of the Dangerous Drugs Act 1952 ("the DDA[#65533]?). Secondly,
that the Accused was in possession of the impugned drugs. Thirdly, that the Accused was trafficking in the
drugs.

i) The drugs are dangerous drugs within the meaning and definition of the DDA

[13] The evidence of the chemist SP2 was affirmative that the results of her analysis of the drugs was that it
contained 451 grams of Cannabis nett. SP2 also confirmed that the said drugs were dangerous drugs as
listed in the First Schedule to the DDA.

[14] The cases of PP v Lam San [1991] 1 CLJ (Rep) 391;; [1991] 3 MLJ 426, Munusamy Vengadasalam v
PP [1987] CLJ (Rep) 221 and Balachandran v PP [2005] 1 CLJ 85 respectively all held that the court is
entitled to accept the testimony of the chemist at face value without the necessity of him or her going into the
details of their analysis.
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[15] This is unless the evidence is so inherently incredible. I do not find the testimony of SP2 to be in that
category. In any event, the method of analysis of SP2 was not subject to severe challenge and I therefore
accept the testimony of SP2 as sufficiently proving this ingredient of the offence in respect of the charge.

[16] From the evidence adduced, I also was satisfied that the chain of exhibits of the impugned drugs were
sufficiently proven by the prosecution.

ii) The accused was in possession of the said drugs

[17] In a charge of trafficking in dangerous drugs, possession is the most important ingredient. Unless there
is direct evidence of trafficking, proof of possession is a necessary step towards proving trafficking. The
prosecution can prove "possession[#65533]? either by direct evidence or employing in aid the presumption
under s 37(d) of the DDA.

[18] In relation to proof of direct possession, the law was taken to be settled as early as 1949 that
possession in order to incriminate a person, must have the following characteristics :

(a) The possessor must know the nature of the thing possessed;
(b) He must have a power of disposal over it and;
(c) He must be conscious of his possession of the thing.

[19] See Toh Ah Loh & Mak Thim v Rex [1949] MLJ 54.

[20] However, in PP v Kau Joo Huat [1988] 2 MLJ 91, it was held that power of disposal is not an essential
ingredient.

[21] In Leow Nghee Lim v Reg [1956] MLJ 28, Taylor J explained "possession[#65533]? as follows :

"The word "possession[#65533]? is a vague and general word which cannot be closely defined. Without at least
general knowledge there cannot be possession but there can be possession without full and exact knowledge.
This is recognised in the present Drugs Ordinance which provides, by the presumption already cited, that if a man has
custody or control of a drug the onus of proving, first that he did not have possession, and secondly that he did not
know the nature of the drug, shall be shifted to him.[#65533]? (Emphasis added)

[22] In Chan Pean Leon v PP [1956] MLJ 237, Thompson J said :

... "possession[#65533]? itself as regards the criminal law is described as follows in Stephen's Digest, 9th edn, p 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.[#65533]?

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 shown that he had the intention of dealing with it as if it belonged to him should he see any
occasion to do so, in 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
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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 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. (Emphasis added)

[23] In PP v Muhamad Nasir b Shaharuddin & Anor [1994] 2 MLJ 576, possession was discussed in the
following manner :

"Possession is not defined in the DDA. However, it is now firmly established that to constitute possession, it is
necessary to establish that; (a) the person had knowledge of the drugs; and (b) that the person had some form of
control or custody of the drugs. To prove either of these two requirements, the prosecution may either adduce direct
evidence or it may rely on the relevant presumptions under s 37 of the DDA.[#65533]?

[24] In PP v Abdul Rahman b Akif [2007] 4 AMR 269;; [2007] 5 MLJ 1, the court after quoting what
Thompson J had said in Chan Pean Leon v PP (supra) held further as follows :

"It is trite that what constitutes "possession[#65533]? under s 37 of the Act is a question of law (see Yee Ya Mang v
PP [1972] 1 MLJ 120 and PP v Badrulsham b 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.[#65533]?

[25] Implicit to the issue of determining whether one has possession or not is the issue or concept of
exclusive possession.

[26] The concept of exclusive possession has been the subject of some confusion. The prosecution has
often advanced the submission that possession need not be exclusive for it to incriminate.

[27] The case often cited as authority for that proposition is the case of Public Prosecutor v Denish a/l
Madhavan [2009] 2 MLJ 194. The source for this belief is derived from a passage in the case by Abdul Aziz
Mohamad FCJ where his Lordship held as follows :

"Before proceeding to consider the reasons for the Court of Appeal's decision, we will say a few words about 'exclusive'
possession. It is inappropriate to speak of possession of an article in criminal law as exclusive possession. One
is either in possession or not in possession, although one could be in possession jointly with another or
others. To say that the prosecution of a drug case fails because there has been no proof of exclusive
possession is apt to convey the wrong impression that it is only in cases where possession is entirely with
one person, -- that is, 'exclusive' -- that a conviction is possible. When the learned trial judge said 'The accused
sought to negative the proof of exclusive possession...', we take it that he meant no more than that the respondent
sought to show that he was not in possession of the drugs because he had no knowledge of their existence and that
the drugs could have been placed in his bags by some other person or persons.[#65533]?

(Emphasis added)

[28] A careful reading of the above passage would indicate that what is intended to be conveyed is that
possession need not be exclusive to the accused and that it can be joint as well. The Learned Judge
however goes further to explain as follows :

"The idea of exclusivity features in the meaning of 'possession' in criminal law as one of the elements
necessary to constitute possession. As Taylor J said in Leow Nghee Lim v Reg [1956] MLJ 28:

... 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
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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 it 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. It is
essential to keep this distinction clearly in mind, especially when applying presumptions

Thomson J in Chan Pean Leon v Public Prosecutor [1956] MLJ 237, said that 'possession' for the purposes of criminal
law involves possession itself -- which some authorities term 'custody' or 'control' -- and knowledge of the nature of the
thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th Ed), at p 304),
in which the exclusive element mentioned by Taylor J appears:

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.

Once the elements needed to constitute possession are established, including the element of exclusive power
to deal, then what is established is possession, not exclusive possession. So much for exclusive
possession.[#65533]?

(Emphasis added)

[29] It is to be noticed from the above passage therefore that what the Learned Judge had in mind was that it
is inappropriate to speak of possession as being exclusive in the sense that possession can only be
established by the prosecution if it is proven that only the accused was in possession. This is apt to convey
the wrong impression that possession cannot be jointly held.

[30] There is nothing however in the judgement to convey the view that the element of "exclusivity "has been
done away with. As expressed in the judgement and upon reliance on earlier case law, the element of
exclusivity of possession was expressed to be proven when the possessor has the power to exclude other
persons from enjoyment of the property.

[31] The definition of possession itself was expressed to be when a person is so situated with respect to a
thing 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.

[32] It appears that the apprehension of the learned judge in Public Prosecutor v Denish a/l Madhavan with
the use of the phrase "exclusive possession[#65533]? stems from the tendency it has to mislead one into
thinking that possession can only be proven if one person alone had possession as this can convey the
wrong impression that possession cannot be joint.

[33] But quite apart from that, the judgement does not do away with the definition of possession as
expressed in the older cases referred to, that make it clear that the element of exclusivity in proving
possession is not done away with.

[34] I am fortified in expressing my view above by the exhaustive treatment on this subject by En Hisyam
Abdullah alias Teh Poh Teik in his book "Drugs Trafficking And The Law[#65533]?. The learned author
has set out to explain with brevity and clarity the elements that go to make up criminal possession and has
resorted in that endeavour to draw from principles enunciated from the most recent decisions.

[35] In fact in the case of Denish Madhavan itself (supra), as observed by the learned author, the
Federal Court found such exclusivity on the facts of the case itself from the following :

i) That the accused was the tenant of the premises;

ii) The clear confession by the accused that there were more cannabis under the bed; and
iii) The act of the accused in taking out three bags of cannabis from under the bed.
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[36] These factors on the other hand are noticeably absent in this case. A recent decision of the Federal
Court adopted a very similar approach to Denish Madhavan. The Federal Court case of Siew Yoke Keong v
Public Prosecutor [2013] 3 MLJ 630 held inter alia, the following :

"So, in our judgment in the circumstances of this case, the presence of the ladies clothing (two female upper garments
and two pairs of female jeans) along with male clothing in the third room of the first house does not mean that no
possession was established against Siew. The crucial question is whether Siew was so situated with respect to
the proscribed drugs found in the second and third rooms of the first house that he had the power to deal with
the drugs 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. In other words, Siew must be so situated that he can deal with the
proscribed drugs as if it belonged to him, and it must be shown that he had the intention of dealing with it as if
it belonged to him should he see any occasion to do so (he had animus possidendi) . Invariably this is a fact
which can only be proved by inference from surrounding circumstances of this case. It must be clear from the
circumstances in which the proscribed drugs were found, that Siew had the intention of dealing with the drugs as if they
belonged to him. The list of such possible circumstances is not exhaustive. One example of such circumstances given
by Thompson J in Chan Pean Leon is a case where an article is found in a locked room where one holds the key. In
the present case, Siew was in possession of the keys to the locked first house in which large amount of
dangerous drugs were found in two locked rooms; the keys to which were kept at the locations known to
Siew.[#65533]? (Emphasis added)

[37] It will be observed from the decision that an important element considered by the apex court in deciding
whether to fasten possession upon the accused is whether in all the circumstances he had the power to deal
with the drugs as owner to the exclusion of all other persons should the need arise. He must also be so
situated that he can deal with the drugs as if they belonged to him.

[38] On the facts of the case, the Federal Court in Siew's case found these factors to be present from the
following :

i) The accused had in his possession the keys to the first house;
ii) He was the tenant of the first house:
iii) Evidence of information leading to discovery under section 27 of the Evidence Act 1950
was admitted by him pointing to sets of keys which led to the discovery of drugs in some of the
rooms in the house.

[39] Once again, these factors are absent from the case under consideration. In respect of the element
of exclusivity, the court observed as follows :

"The question is what is the combined effect of all the circumstantial which we have set out? Where did the totality and
the total effect of all the evidence lead the court to? Did it not lead to the inevitable, and the only conclusion that Siew
was found in possession of the proscribed drugs? In our judgment the answer to the above question must be in the
affirmative. Siew was so situated with respect to the proscribed drugs found in the second and the third rooms
in the first house that he had 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 (Public Prosecutor v
Denish Madhavan and Chan Pean Leon v Public Prosecutor applied). The learned trial judge was right when he
held that the prosecution had proved actual possession of the proscribed drugs against Siew. Having made the
affirmative finding of possession, and as the amount of dangerous drugs in this case was more than 15g, the learned
trial judge invoked (and in our view rightly) the presumption of trafficking under s 37(da) of the DDA. In our judgment,
the learned trial judge was right in calling upon Siew to enter on this defence on the charge of trafficking against
him.[#65533]?

(Emphasis added)

[40] It will be noted that the court placed emphasis on the need to deal with the proscribed drugs as owner to
the exclusion of all others when determining the test of exclusivity.

[41] This was recently reemphasised in Law Sie Hoe v Public Prosecutor [2014] 1 LNS 269. In doing so, the
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Court of Appeal placed reliance on the case of Toh Ah Loh & Mak Thim v Rex (supra).

[42] The need to exclude others who could have access to the place where the drugs were concealed
has been underscored by the decision in Ibrahim Mohamad & Anor v Public Prosecutor [2011] 4 CLJ 113
where the Federal Court speaking through Zulkefli Makinudin FCJ (as His Lordship then was) had this to say
:

"It is our finding that there is no evidence to prove that both the accused were exclusively in custody and control of the
vehicle prior to their arrest. There are so many favourable inferences that can be made from the existing factual matrix
of this case. The vehicle could have been previously rented to a third party or Zainuddin could have taken possession
of the said vehicle after the summons incident in Kedah.[#65533]?

[43] Although the factual matrix there involved a motor vehicle, the position with regard to a house or room is
no different. The main thing to note was that the element of exclusivity was considered an essential element
in order to prove custody, control and possession as was the need to exclude others to the place where the
drugs were found concealed.

[44] The need for the prosecution to exclude others to the drugs was also decisive in the case of Husin
Sitorus v Public Prosecutor [2012] 7 CLJ 205 as borne out by the following passage :

"There is a welter of authoritative precedents which have held that for possession to be established,
accessibility by others to the place where the drugs are found should be excluded by evidence by the
prosecution (PP v. Kang Ho Soh [1991] 3 CLJ 2914;; [1991] 3 CLJ (Rep) 557 HC, PP v. Tang Chew Weng [1969] 1
LNS 141 HC. The onus is not on the defence to prove possibility of access by others but on the prosecution to
exclude such possibility and the issue must be answered in favour of the appellant if there were more than one
way in which the evidence adduced by the prosecution might be viewed such as in the present case,
implicating the appellant or the other persons who were present in the boat. (Abdullah Zawawi Yusoff v. PP
[1993] 4 CLJ 1 SC). In other words exclusivity of custody and control of the drugs ought to be established by
the prosecution.[#65533]?

(Emphasis added)

[45] The Court of Appeal case of Azizan Yahaya v Public Prosecutor [2012] 8 CLJ 405, held with
respect to the element of exclusivity :

"We find from the evidence adduced by the prosecution that though the room where the drugs were found was
occupied only by the appellant and SP4 but it is pertinent to note that evidence also showed that the room was
accessible to all the other occupants in the house. SP4 testified that she and the appellant occupied the main
bedroom and the children occupied the other two rooms. In cross-examination SP4 agreed that everybody in the house
had access to the room (p. 28 appeal record). The room was unlocked. Thus whilst the occupants of the room
were the appellant and SP4 both of whom would have had complete access to the room, it is also apparent that
their three children too had access to the room. Yet SP4 was not charged although she was remanded.

We find that the testimony of SP4 regarding access to the room was hardly challenged. SP5 under cross-examination
had also agreed that the appellant's children probably had access to the appellant's room. He was not re-examined on
this issue. We agreed with learned counsel that the learned judge had failed to analyse or assess these testimonies.
The prosecution has failed to discharge its bounden duty of excluding access to the appellant's room by
others.[#65533]?

(Emphasis added)

[46] All the above cases drive home the point that the element of exclusivity and the need to exclude others
from access to the place where the drugs were found is of paramount importance if the prosecution are to
successfully prove custody, control or possession.
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[47] Now, applying the principles expressed in the above cases, can it be safely held on the available
evidence that the element of exclusivity in order to find possession that incriminates was proven by the
prosecution ?

[48] It is not in dispute that the impugned drugs were discovered in the back room nearest to the kitchen.
The principle testimony regarding the crucial question of accessibility to the back room nearest the kitchen or
room no.3 ("the said room[#65533]?) of the house came from its other permanent occupants, namely Geetha
a/p Ramasamy (SP4), the wife of the Accused, and Krishnakumari a/p Bathumalai (SP5), the daughter of the
Accused.

[49] SP4 testified that the back room nearest to the kitchen ("the said room[#65533]?) in the said house was
her husband's, (the Accused) room. However, SP4 also said that sometimes the friends of the Accused
would come over and sleep over in the said room. SP4 said that she only goes into the room to clean it. She
also said that the room is always left unlocked.

[50] SP4 also testified that she was not at the house on the day of the Accused's arrest on 6.4.2016 but at
the house of her friend. SP4 said that she had stayed over at her friends place since the night of 3.4.2016.
SP4 also said that she, SP5 and the Accused had the duplicate keys to the house.

[51] During cross examination, SP4 agreed that the Accused had often brought his friends and his girlfriend
to the said room. She agreed that they stayed over. SP4 in fact agreed that she had left the house several
days before the arrest of the Accused because of an argument she had with him regarding the fact that the
Accused's girlfriend by the name of Citra had often slept over in the said room.

[52] She said that these arguments had erupted often. She also said that the said Citra had come over often
and that she (SP4) had also been beaten by the Accused when she tried to put a stop to this. SP4 also said
that she had informed the fact that the Accused's friends and his girlfriend had often stayed over at the said
room to the police during investigations.

[53] SP4 also testified that a friend of the Accused named Ragu often spent the night in the room. She
agreed that not all of the clothing in the said room belonged to the Accused. SP4 identified two pieces of
clothing in the cupboard in the room as belonging to the said Ragu and marked them on the photograph P7
(C) as A1 and A2 respectively.

[54] SP4 said that when Ragu stayed overnight, he would stay in the said room. SP4 said that she was sure
that the clothing she identified in the said photographs belonged to Ragu because she was the one who
washed these shirts.

[55] SP4 agreed that if the door to the said room was opened, one cannot see what was behind the
cupboard because the door would block the view. SP4 agreed that the set of keys belonging to the Accused
had not been found until that time.

[56] In re-examination, SP4 said that she did not know when Citra and Ragu had last come over to the room
but also re-emphasised that the room was used by the Accused and his friends.

[57] SP5, the daughter of the Accused, confirmed that the last room or room no.3 was used by her father,
the Accused and his friends. She said that the room was not locked and she does not enter the room.

[58] SP5 confirmed that the night before the arrest of the Accused, her mother, SP4, was not there. She said
that SP4 had left the house on 4.4.2016 and had only come back on 7.4.2016. SP5 said that the reason SP4
left the house was because she had a misunderstanding and an argument with the Accused.

[59] SP5 said that she saw her father's friend on the night of 5.4.2016. On 6.4.2016 before she left for
school, she again saw her father's friend in room no.3. She said that at the time although her father was at
home, he was not in the said room. While his friend slept in the room no.3 the night before, her father slept in
the living room.
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[60] SP5 confirmed that on the night of 5.4.2016 and in the morning of 6.4.2016, her father's friend by the
name of Ragu was in the house and stayed in room no.3 which she identified from the photographs as
Exhibit P6 (K).

[61] SP5 agreed when it was put to her that the source of the argument between SP4 and the Accused was
because the latter had often brought a person nemed Citra to stay in room no.3. SP5 further agreed that until
today she does not know where her father's house keys were.

[62] In re-examination, she said that she did not know when was the last time the Accused had brought Citra
over.

[63] The raiding officer, SP3, said that he found an Astro Bill in the house in the name of the Accused. He
said the reaction of the Accused was one of surprise at the presence of the police.

[64] SP3 confirmed that the said room was opened and not locked. He agreed in cross-examination that the
black plastic bag containing the drugs was not visible when he entered the room and that the raiding party
had taken time to find it.

[65] SP3 also agreed that the said room was accessible to all occupants in the house. In re-examination,
SP3 agreed that if no examination had been carried out in the room, he could not have found the plastic bag
behind the cupboard.

[66] SP7, the investigating officer (I.O) of the case, said that he was not informed about the persons named
Ragu and Citra during investigations. He agreed however that SP4 had said that on the day of the arrest she
was not at home and staying with a friend.

[67] SP7 said he was informed that this was because there was an argument between SP4 and the
Accused. SP7 said he asked SP4 the reason for the argument but was told that it was a personal matter.

[68] SP7 also testified that according to his investigations, when SP3 first entered the room, he could not see
the package. He agreed that SP3 had to conduct a search first before the package was found.

[69] SP7 agreed that SP3 had to dip his hand into the back of the cupboard in order to retrieve the package
and that it was hidden from view. SP7 also agreed that the said room was accessible to everyone in the
house. He agreed still further that there were no keys found on the Accused at the time of arrest and that the
said room no.3 had no keys and could not be locked.

[70] A consideration of the above evidence by the prosecution in summary, show that the said room was not
locked, the friends of the Accused often frequented and sometimes stayed over in the room, the Accused
often brings his girlfriend named Citra to stay over in the said room and on the day of arrest, a person named
Ragu had slept over in the said room while the Accused slept in the living room. SP4 also said that there
were two shirts of Ragu in the cupboard which she identified from the photographs, as he had often stayed
over.

[71] Although SP7 testified that he was never informed about the said persons by the name of Ragu and
Citra, he agreed that SP4 told him that on the day of the arrest she was not at home but staying over with a
friend because she had an argument with the Accused. SP7 said that when he asked her what the reason for
the argument was, SP4 said it was over a personal matter. SP4 related what the personal matter was all
about which concerned a person named Citra frequently staying over in the said room upon the invitation of
the Accused.

[72] An evaluation of the evidence adduced by the prosecution clearly show that room no.3 was not in the
exclusive occupation of the Accused. There was evidence that the room had been frequented by friends of
the Accused and especially two persons by the name of Citra and Ragu.

[73] In regard to the said Ragu it was also confirmed that there were two shirts of his hanging in the
cupboard in the said room. There was evidence that the said room was not locked and there was free
 Page 10

access to the room by all those who occupied the house.

[74] It must be remembered that all this evidence emanated primarily from SP4 and SP5 who although are
the wife and daughter respectively of the Accused, were also witnesses called by the prosecution.

[75] Their evidence, it must be noted, was not impeached. Therefore although connected by relationship ties
to the Accused, unless successfully challenged by the prosecution itself, their evidence stands intact and
credible.

[76] It is also pertinent to note that SP3 who was the raiding officer also said that the room was not locked on
the day of the arrest. His evidence also shows that the packet which contained the impugned drugs was not
immediately visible when one was in the said room. This being the case it cannot also be fairly inferred that
the Accused would have necessarily had sight of it while in the room.

[77] As there was evidence that there was unrestricted access to the said room, it cannot also be fairly
inferred that the Accused had kept the packet behind the said cupboard. The packet could very well have
been placed or hidden behind the cupboard by any of the other persons who had frequented the said room.
There was also no conduct displayed on the part of the Accused from which knowledge of the incriminating
exhibits could be inferred.

[78] Furthermore, SP7 agreed that there was no forensic evidence in the form of DNA or fingerprints on the
package. While the absence of evidence of fingerprints and DNA normally does not result in prejudice to the
prosecution case, being merely corroborative in nature, where there is little or no evidence to connect the
accused to a crime, its absence assumes greater importance.

[79] The case of Gunalan a/l Ramachandran & Ors v PP [2004] 4 MLJ 489, often relied on by the
prosecution for the proposition that such forensic evidence is merely corroborative can be distinguished as
in that case, it was held that in view of the proof of possession, the inability to lift finger print impressions
from the packets for analysis and the failure to take hand swabs and fingernail clippings did not affect the
finding of possession. However, unlike that case, on the facts here, the prosecution are hard pressed to
prove direct evidence of possession.

[80] In all the circumstances therefore, there was no exclusivity of possession by the Accused of the drugs in
the said room. As referred to above, case law is clear that quite apart from the fact that possession can be
joint, the ingredient of exclusivity of possession must be proven in order to incriminate an accused. The
prosecution had also failed to prove custody or control on the part of the Accused and therefore cannot also
invoke in aid the statutory presumption of possession and knowledge in section 37(d) DDA.

[81] On the facts, and for the reasons given above, as the prosecution has failed to prove exclusivity of
possession on the part of the Accused, I find that the prosecution has failed to prove the ingredient of
possession.

Can the conviction of the Accused under section 6 DDA be used to connect the Accused to the
present charge?

[82] The prosecution further submitted that the fact that the drugs found in the pocket of the jeans belonging
to the Accused were Cannabis and therefore similar in type to the drugs found in the plastic package, an
inference can be made on the facts that the Accused had knowledge of the drugs found in the said package.
It would not be out of place to say that although not stated expressly, the prosecution were also attempting to
rely on similar fact evidence.

[83] The Cannabis found in the jeans constituted the subject matter of a charge of possession under
section 6 DDA against the Accused. That charge has already been disposed of and the Accused upon
conviction is now undergoing sentence in respect of that charge. The issue now is whether the fact that
Cannabis was found in the jeans of the Accused found in the said room can be admitted and used to connect
the Accused to the present charge.
 Page 11

[84] A similar fact, as its name suggests, is a fact that is of the same type or fact as another. Translating this
into legal language, it may be said that similar fact evidence is therefore evidence of the fact of the
commission of one or more previous offences but of a similar nature being used as evidence to connect the
Accused to the commission of another offence.

[85] Now, the only purpose of admitting the fact of the commission of one offence in evidence in the charge
involving another offence can only be for the purpose of proving that an accused by his propensity in
committing one offence is also very likely to have committed another offence of a similar nature.

[86] The rule against similar fact evidence was first defined in the celebrated case of Makin v AG for
New South Wales [1894] AC 57, by the Privy Council through Lord Herschell as follows :

"... it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused had been
guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the
accused is a person likely from his criminal conduct or character to have committed the offence for which he is being
tried.[#65533]?

[87] Whatever be the intention of the prosecution in advancing this submission, the undoubted effect would
be to prove that the Accused, by having drugs of a similar nature in his jeans pocket is therefore likely
because of his tendency to such criminal conduct to have also committed the offence for the drugs found in
the said package.

[88] This brings the attempt by the prosecution within the prohibition warned against in Makin v AG for New
South Wales. The rule in Makin was later reformulated by the House of Lords in DPP v Boardman [1975] AC
421, where it was held that in deciding the question of admissibility, the judge should weigh the probative
value of the evidence against its prejudicial effect. If the similar fact evidence was so weak, so unreliable or
so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it should be
excluded.

[89] The admission of similar fact evidence is given statutory recognition in the provisions of the Evidence
Act 1950 by way of sections 14 and 15 respectively. These sections make relevant and therefore
admissible similar fact evidence under certain circumstances. However, case law has shown that there is
still a discretion reserved to the trial judge to admit or not to admit the evidence if its prejudicial value
outweighs its probative force.

[90] Whereas the Boardman test required that there be "striking similarity[#65533]? before such
evidence was admitted, the case of DPP v P [1991] 2 AC 447 held that "striking similarity[#65533]? was not
an essential element in every case. In the case of PP v Yap Chai Yee (and Another Appeal) [2015] AMEJ
1644;; [2016] 1 MLJ 1, the Court of Appeal held :

"On the issue of similar fact evidence - whether there is similarity between the offence of possession of 30.40g of
cannabis for which the appellant was arrested earlier and charged and the present charge of trafficking in 993.8g of the
same drug and whether similarity of the offences is a prerequisite, the case of PP v Mohamad Roslan b Desa -
Mahkamah Persekutuan Rayuan Jenayah No. 05-28-2007(K) was referred. The Federal Court, in a judgment delivered
by Arifin Zakaria CJ (Malaya) (as he then was) stated the following as the proper test for admission of similar fact
evidence.

The courts below rejected the similar fact evidence on the basis that there was no striking similarity between what
happened in the earlier case and the present case. It should perhaps be noted that the House of Lords in DPP v P had
retracted from the test laid down in Boardman as to the requirement of "striking similarity[#65533]? and said that it was
inappropriate to single out "striking similarity[#65533]? as an essential element in every case. But following Boardman it
was held that the essential feature of admissibility of such evidence is whether its probative force in support of the
charge is sufficiently great to make it just to admit the evidence notwithstanding that its prejudicial effect on the
accused tending to show that he was guilty of another offence. Whether the evidence has sufficient probative value to
outweigh its prejudicial effect must in each case be a question of degree. The test has since been authoritatively laid
down in DPP v P in terms of probative value as against its prejudicial effect. There is force in saying that the decision in
DPP v P is in line with ss 14 and 15 of the Evidence Act as "striking similarity[#65533]? has never been a
requirement of the said sections.[#65533]?
 Page 12

[91] In particular it must be noted what was said in PP v Mohamad Roslan b Desa, Mahkamah
Persekutuan Rayuan Jenayah No. 05-28-2007(K), by Ariffin Zakaria CJ (Malaya) (as His Lordship the
Chief Justice then was), that whether the evidence has sufficient probative value to outweigh its prejudicial
effect must in each case be a question of degree and that the test has since been authoritatively laid down in
DPP v P in terms of probative value as against its prejudicial effect.

[92] This pronouncement reinforces the position that there is vested in the trial judge a discretion to exclude
such evidence if the prejudicial nature outweighs its probative value.

[93] It also establishes the position that it is not necessary in deciding whether to admit similar fact
evidence, that there must exist "striking similarity[#65533]?. Therefore whether or not there exists "striking
similarity[#65533]? the judge is required to conduct a balancing exercise as referred to above.

Further, in the case of Wong Kok Chun v PP [2012] MLJU 115, it was held :

"Dalam kes Saludin Surif pihak pendakwa mengemukakan keterangan melalui saksinya, SP12, bahawa dia pernah
pergi ke rumah di mana dadah telah dirampas untuk menghisap ganja dengan perayu. SP12 juga memberi keterangan
bahawa sebelum rumah tersebut diserbu oleh polis dia ada menghisap ganja yang diberikan oleh perayu. Perayu
merupakan penyewa utama rumah tersebut. Mahkamah Rayuan, melalui Shaik Daud Ismail HMR, telah memberi
pandangan berikut:

"Apart from this, the appeal records show that the learned judge admitted evidence highly prejudicial to the
appellant through the testimony of SP12. SP12 was allowed to adduce evidence that he had frequently visited the
premises in order to smoke ganja sometimes with the late Mohd Musa and sometimes with the appellant and that the
appellant had smoked ganja in that premises before. The testimony of SP12 that just before the police raided the
premises he had smoked ganja in the premises which ganja was allegedly provided by the appellant. The learned
judge admitted all these simply on the ground that there was no challenge of this in cross-examination and that there
was no reason for him to reject such evidence. With respect, we hold that the learned judge erred in law on this issue,
as it is trite law that inadmissible evidence remains inadmissible whether challenged or not. We hold that all the
testimony of SP12 in connection with the appellant, are highly prejudicial and ought to be excluded. The
general rule is that evidence showing the accused had committed any other offence other than those charged,
or has a disposition to commit the kind of offence charged, is inadmissible for the purpose of showing that he
had committed or likely to have committed the offence with which he is charged. Having admitted and
considered the highly prejudicial evidence, it is obvious that this had influenced the learned judge to hold that appellant
had exclusive possession, custody or under his control the offending drugs.[#65533]? (Emphasis added)

[94] In the case of Jalil b Yunus v PP [2010] 1 AMR 68;; [2009] MLJU 877, the above passage in the case
of Saludin b Surif v PP [1997] 3 AMR 2867 was also cited with approval. Similarly in Lim Hong Siang v PP
[2008] MLJU 716, Saludin b Surif v PP was also cited in a similar vein.

[95] In the case of Chin Kek Shen v PP [2013] 7 CLJ 435, the Court of Appeal speaking through Hamid
Sultan bin Abu Backer JCA said as follows :

"We are also of the considered view that it was plainly wrong and/or perverse for the court to consider the earlier
plea of guilt by the appellant to a reduced charge at the prosecution stage. Such a consideration which is
irrelevant in criminal jurisprudence in the instant case has caused a mistrial and/or miscarriage of justice as it
clouded the court from acting fairly and reasonably without bias whatsoever in assessing the defence version.
It must not be forgotten the requirement of impartiality is a principle of natural justice and a patent breach as in the
instant case will compromise any decision making process.[#65533]? (Emphasis added)

[96] Further, in the case of Chia Meng Leng v PP [2013] 5 AMR 629;; [2013] 2 CLJ 926, it was held :

"(d) The appellant's second submission

However, there is another reason why we should set aside the conviction. In the present case, Encik Hisyam
 Page 13

brought to our attention that what the learned trial judge did, to the prejudice of the appellant, was to make
findings adverse to the appellant from certain portions of the notes of proceedings of the other trial. For, the
learned trial judge, in her grounds of judgment, said:

"Dalam kes MT3, eks D36 menunjukkan bahawa kereta JGN 9430 di mana dadah dijumpai adalah milik tertuduh (Chia
Meng Leng). "

And, further, down the same page of her grounds, the learned trial judge said:

"Melalui keterangan eks D36, dadah yang dijumpai dalam kereta JGN 9430 adalah sama dengan jenis dan sifat
dadah dijumpai dalam kereta Wira JET 9981 yang dipandu oleh tertuduh pada masa beliau ditangkap.[#65533]?

With respect, we accept learned counsel's contention that it was wrong in law to import this prejudicial
evidence from the notes of evidence of the other trial to make a finding in the present case that is detrimental
to the appellant. Exhibit D36 was tendered by the defence in support of the defence's case (and solely to show the
impeachment proceeding, and to challenge the credibility of PW2 - see s 146 of the Evidence Act 1950). Yet, here
we have a paradoxical situation where the learned trial judge, instead of accepting exh D36 as supporting the defence's
case regarding the credibility of PW2, because of the impeachment proceeding in the previous trial, proceeded to make
use of the notes of evidence to make adverse findings against the appellant. This is a serious error that warrants
appellate intervention. Other than for the purpose of challenging the credibility of PW2, the evidence of the other trial is
irrelevant and inadmissible for the purpose of the present trial.[#65533]?

(Emphasis added)

[97] Finally, in order to further fortify what was held in the above mentioned cases, in the case of PP v
Jazri b Johari [2011] 4 AMR 55;; [2011] 1 LNS 181, the High Court hearing a charge of drug trafficking,
where the prosecution attempted to adduce evidence of other drugs found in the car, which did not form part
of the subject matter of the charge, disallowed such application and in so doing said as follows :

"This court was of the considered view that the prosecution cannot rely on s 11 of the Evidence Act 1950 to adduce
evidence of the other drugs found in the car because the evidence of one crime not reduced to a legal certainty as in
a conviction cannot provide evidence of another unconnected crime. The section also cannot apply to facts which have
already been made relevant by other provisions of the Act such as similar fact evidence which has been declared
relevant by ss 14 and 15 of the Evidence Act 1950.[#65533]?

[98] In the case of Junaidi b Abdullah v PP [1993] 2 AMR 2209;; [1993] 4 CLJ 201, the Supreme Court
held :

"On the principle laid down in Makin's case and Boardman's case, we are of the opinion that where the
purpose of adducing evidence of similar facts or similar offences is justifiable on ground of relevancy and
necessity to rebut any defence which would otherwise be open to the accused (in addition to those under ss
14 and 15 of the Evidence Act) it is admissible in evidence provided the probative value of such evidence
outweighs its prejudicial value. There must be a real anticipated defence to be rebutted and not merely "crediting the
Accused with a fancy defence[#65533]? as emphasised by the Privy Council in Noor Mohamed v the King at p
192.[#65533]? (Emphasis added)

[99] Therefore it is clear that even in those cases falling under sections 14 and 15 of the Evidence
Act 1950, the test for its admission is whether the probative value of such evidence outweighs its prejudicial
value. The court is thus not immunised from having to carry out a balancing exercise on this aspect. This
was made clear in the Court of Appeal case of Azahan b Mohd Aminallah v PP [2004] 6 AMR 810;; [2005] 1
CLJ 374 which held :

"A court when deciding whether to admit similar fact evidence must carry out a balancing exercise by
weighing the probative value of such evidence against its prejudicial effect as impliedly required by ss 14 and
15 of the Evidence Act 1950. The court would be justified in admitting the evidence where (its probative value
is outweighed by its prejudicial effect) . See Boardman v Director of Public Prosecutions [1975] 3 AC 421; Director
of Public Prosecutions v P [1991] 2 AC 447; Junaidi Abdullah v PP [1993] 4 CLJ 201; [1993] 3 MLJ 217; PP v Teo Ai
 Page 14

Nee [1995] 2 SLR 69; Tan Meng Jee v PP [1996] 2 SLR 422; Lee Kwang Peng v PP [1997] 3 SLR 278.[#65533]?

In Tan Meng Jee v PP Yong Pung How CJ when delivering the judgment of the Singapore Court of Appeal said of the
equipollent provisions in the Singapore Evidence Act:

"Be that as it may, we are of the opinion that the admission of similar fact evidence, at least for the purposes
identified in ss 14 and 15 of the evidence Act, should be governed by the balancing test adopted by the
House of Lords in Boardman's case. Such an approach is warranted both in principle as well as on the
wording of the legislation itself. As to the former, it has been argued above that the rationale of the rule
excluding similar fact evidence is so that every person charged with an offence may only be convicted upon
being proved to have committed the acts within the charge. It would be subverting established jurisprudence
to allow a conviction based on the particular disposition of the accused - based on the contention that the
accused is that type of person who would commit such an offence. On the other hand, there may be cases where
the interest of justice clearly outweigh any prejudicial dangers inherent in the evidence.[#65533]?

With respect we entirely agree with the aforesaid dictum, coming as it does from so authoritative a source as His
Honour the Chief Justice of Singapore. Further, like His Honour, we also find Illustration (o) to s 14 of the Evidence
Act to be relevant.[#65533]?

(Emphasis added)

[100] Although the above cases referred to may not be on all fours with the facts of this case, the sentiments
of these cases in no uncertain terms express that any form of prejudicial evidence (whether it is categorised
as similar fact evidence under s. 14 or 15 of the Evidence Act 1950) or a case of drawing inferences
from one charge in order to connect an accused with another charge, ought to be excluded if a tribunal of
fact upon conducting a balancing exercise finds that such prejudicial evidence outweighs its probative value.

[101] To allow the prosecution to use the facts in one charge, albeit one that resulted in a conviction, to infer
knowledge in respect of another charge would not only be unfair to the accused but would also be to in a
way relieve them of the burden of proving separately each of the charges beyond a reasonable doubt. This is
anathema to the principle that the prosecution at all times bears the legal burden to prove an offence beyond
reasonable doubt.

[102] In this regard, it must not be lost sight of, that under the sacrosanct provisions of the Federal
Constitution in Article 5(1), no person shall be deprived of his life or personal liberty save in accordance with
law. I find that to accede to the contention of the prosecution would be to infringe the process of a fair trial
against the accused.

[103] The issue of breach of the fairness rule was encapsulated in the Federal Court case of Lee Kwan
Woh v PP [2010] 2 AMR 231 at 242;; [2009] 5 CLJ 631 at 644 as follows :

"We also find support for the view we have expressed from the judgment of Lord Diplock in Ong Ah Chuan v PP [1981]
1 MLJ 64, where, when dealing with Articles 9 and 12 of the Singapore Constitution which are identical to Articles 5 and
8 respectively he said:

"In a constitution founded on the Westminster model and particularly in that part of it that purports to assure to all
individual citizens the continued enjoyment of fundamental liberties or rights, references to 'law' in such contexts as 'in
accordance with law', 'equality before the law', 'protection of the law' and the like, in Their Lordships' view, refer to a
system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the
common law of England that was in operation in Singapore at the commencement of the Constitution. It would have
been taken for granted by the makers of the Constitution that the 'law' to which citizens could have recourse for the
protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those
fundamental rules.

It is clear from this passage that the rules of natural justice, which is the procedural aspect of the rule of law, is an
integral part of Articles 5(1) and 8(1). In short, procedural fairness is incorporated in these two articles.[#65533]?

Drawing the threads together, it is clear from the authorities that it is a fundamental right guaranteed by Article 5(1) that
a person's life (in its widest sense) or his or her personal liberty (in its widest sense) may not be deprived save in
accordance with state action that is fair both in point of procedure and substance. Whether an impugned state action is
substantively or procedurally fair must depend on the fact pattern of each case. However, when the principle is applied
to a criminal case, what it means is that an accused has a constitutionally guaranteed right to receive a fair trial by an
 Page 15

impartial tribunal and to have a just decision on the facts. If there is an infraction of any of these rights, the accused is
entitled to an acquittal.[#65533]?

[104] If I accede to the submission advanced by the prosecution, it will tantamount to taking into
consideration the facts leading to the commission of an offence involving possession, which penalties upon
conviction carry imprisonment or a fine, in order to infer that the accused must also have knowledge of the
drugs in the said package which forms the subject matter of a charge under section 39B (1) (a) of the DDA,
and which upon conviction carries the death penalty. By no stretch of the imagination can this be said to be
in accord with the rules of a fair trial. The prejudice which would occasion the Accused otherwise would be
patently obvious and would far outweigh any probative value.

[105] There was further no evidence that although the subject matter of both charges were Cannabis, they
necessarily emanated from the same source. In fact, there were two separate chemist's reports for each
charge.

[106] I therefore declined for the reasons given above to admit the evidence of the previous charge and
conviction under s. 6 DDA or make the inference that as the drugs found in the jeans were of a similar type
as the drugs found in the package, this fact can be used to connect the Accused to the present charge.

[107] As earlier alluded to, the essential element of possession of the impugned drugs has not been proven.
Without proof of possession, there can be no issue of trafficking as possession is an essential ingredient and
the gravamen of the charge of trafficking.

[108] On the facts, there was no evidence of direct trafficking. Having failed to prove possession, the charge
of trafficking must necessarily fail.

[109] Having carefully sifted through the evidence, I asked myself the all-important question, which is "were I
to call for the defence of the Accused and he elected to remain silent, would I convict him of the
charge?[#65533]? The answer to the question posed was in the negative.

[110] Upon conducting a maximum evaluation of the evidence, I therefore hold that the prosecution has
failed to make out a prima facie case against the Accused in respect of the charge of trafficking under
section 39B (1) (a) of the DDA. In accordance with section 180(2) Criminal Procedure Code, I acquit and
discharge him without calling upon him to make his defence.