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2024 MarsdenLR 2717
HIGH COURT MALAYA KUALA LUMPUR
PP – Appellant
Versus
TAN YI HONG – Respondent
[Criminal Trial No: WA-45A-45-12/2020]
The prosecution must prove both possession and knowledge of dangerous drugs for a trafficking charge; mere proximity is insufficient for conviction.
Headnote:(A) Dangerous Drugs Act 1952 - Section 39B(1)(a) - Accused acquitted of drug trafficking charge due to lack of evidence proving possession and knowledge of drugs found in car - Prosecution failed to establish prima facie case against accused - No evidence of handling or knowledge of drugs found. (Paras 22, 24)
(B) Criminal Procedure Code - Section 180(4) - Burden of proof lies with prosecution to establish prima facie case against accused, requiring credible evidence for each ingredient of the offence. (Paras 5, 6)
(C) Evidence Act 1950 - Section 8(2) - Conduct of accused at arrest not sufficient to infer knowledge of drug possession, as panic behavior expected under circumstances. (Paras 12, 18)
Facts of the case:
The accused was arrested in a car where dangerous drugs (MDMA) were found. Evidence indicated the car was accessible to multiple individuals, raising doubt about the accused's possession and knowledge of the drugs. (Paras 3, 7, 14)
Findings of Court:
The court found no affirmative evidence of possession or knowledge of the drugs by the accused, leading to the conclusion that the prosecution failed to prove its case beyond reasonable doubt. (Paras 17, 22)
Issues: The main issues included the determination of possession, knowledge of the drugs, and the credibility of the prosecution's evidence. (Paras 9, 11, 20)
Ratio Decidendi: The court ruled that mere proximity to the drugs without evidence of knowledge does not constitute a crime, emphasizing the need for the prosecution to prove conscious possession. (Paras 20, 22)
Result: The accused is acquitted and discharged of the charge of drug trafficking. (Para 24)
JUDGMENT
Preface
[1] The accused, Tan Yi Hong in this case was acquitted and discharged of the charge for an offence of drug trafficking on 10 August 2023. Brief grounds of judgment were read out in open court. I had informed parties, if an appeal is lodged to the court of Appeal, a full written judgment of this court would be rendered, which is the following.
[2] The accused stood charged for an offence of drug trafficking pursuant to s 39B(1)(a) of the Dangerous Drugs Act 1952 ( DDA /Act 234).
Evidence Tendered By Prosecution
[3] The prosecution had adduced evidence via its witnesses. The crucial ones are the member of the raiding or search party comprising PW3 and PW4, who had testified:
• They had ambushed the accused who was inside the car PNJ 3918 at a car park at Condominium Kiara East, off Jalan Ipoh, Batu 5, Kuala Lumpur.
• He was alone inside the car on the driver's seat.
• They had opened the driver's seat door and ejected the accused from the seat.
• Upon ambush, he was found with P15 and P31.
• It was dangerous drugs, referred to as MDMA weighing 1130.99 grams. Those were pills. It was confirmed by the chemist PW2 via report P13.
[4] P15 was found inside a rose gold bag with label "Duria", kept on the floor of the front passenger side of the car. On the other hand, P31 was found inside the glove compartment, which was kept in the form of a package wrapped in white and orange "poslaju" plastic bag.
Burden Of Proof
[5] Pursuant to s 180(4) of the Criminal Procedure Code (CPC), at the end of the case of prosecution, it is bounden duty of the prosecution to make out a prima facie case against the accused. In that respect, it has to adduce:
• Credible evidence.
• Proving each ingredient of the offence of trafficking of dangerous drug.
• Which if not rebutted or explained by the accused, would warrant a conviction.
[6] When deciding on the proof tendered by prosecution, this court has to embark on a maximum evaluation of the evidence proffered, being:
• Positive evaluation of the credibility and reliability of all the evidence adduced.
• To determine if the ingredients of the offence under s 39B(1)(a) DDA have been established.
• Any reasonable doubt would be resolved in favor of the accused, thus entitling no prima facie case proven against him.
Evaluation
[7] Perusing and evaluating the evidence adduced via prosecution witnesses there has been proof of the following:
• The accused was seated on the driver's seat inside the car in question at time of arrest and search.
• No one else was found inside the car.
• P15 and P31 were found inside the car. P15 was in a bag on the floor of the front passenger side of the car whereas P31 was inside the glove compartment.
• The car was registered in the name of PW5, who is sister to the accused.
• The car was used by all and sundry, including the accused, his sister PW5 and another sister, mother and also workers at the restaurant where the accused works.
• The investigation officer of the case, SP6, has confirmed in her testimony, she could not negate the possibility that other persons had access to the car at the material time.
• On top of that another individual by the name of Lee Siew Heng who is referred to as Ah Heng also handles the car. He has a tyre shop nearby the restaurant and familiarly known to the family of the accused.
• At point of arrest, accused was in a state of fright, simply because he was accosted by a group of policemen who were with plain clothes and some were armed.
• After arrest, P15 and P31 were seized from the car, and as it was found inside the car with the accused, thus he was also arrested.
• On chemical analysis, P15 and P31 were concluded to be dangerous drugs, namely MDMA which were in the form of pills.
[8] Evidence available is only to that extent. The other end of proof is to be formed by way of circumstances and inferences, which must point irresistibly to the accused who was charged for trafficking of the said dangerous drugs.
The Law
