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2021 MarsdenLR 3233
HIGH COURT MALAYA KUALA LUMPUR
PP – Appellant
Versus
MUHAMMAD NG WAH LING – Respondent
[Criminal Trial No: WA-45A-9-05/2020]
Prosecution must establish possession and knowledge for drug trafficking charges; failure to administer proper statutory caution impacts admissibility of evidence.
Headnote:(A) Dangerous Drugs Act 1952 – Section 39B(1)(a) and (2) – Evidence Act 1950 – Section 32(1)(i), 37B – Accused charged with trafficking in Methamphetamine – Prosecution failed to prove possession and knowledge of drugs found in vehicle – Statutory caution not adequately administered – Prosecution's application to admit statement from car's registered owner deemed inadmissible – All evidence regarding drugs was ruled inadmissible – Accused acquitted. (Paras 1, 44, 115, 145)
Facts of the case: The Accused was arrested near a 7 Eleven after police observed a transaction, allegedly leading to the seizure of Methamphetamine found in the boot of a vehicle he directed police to. The ownership and possession of the vehicle were in question, as was the administration of a statutory caution.
Findings of Court: The prosecution did not demonstrate that the drugs were in the Accused's possession nor that he was aware of their presence, holding that a lack of statutory caution rendered many of the Accused's statements inadmissible.
Issues: Whether the prosecution established a prima facie case against the Accused regarding possession and trafficking of drugs and whether the statutory caution was adequately administered.
Ratio Decidendi: The court emphasized the necessity of administering a caution to uphold an accused's right to remain silent and not self-incriminate. Insufficient evidence regarding possession and knowledge led to a ruling in favor of the Accused. (Paras 49, 85, 115)
Result: Accused acquitted.
JUDGMENT
Introduction
[1] The Accused abovenamed was charged with the following:
"Bahawa kamu pada 24 October 2019 jam lebih kurang 12.05 tengahari bertempat di tepi pagar Gereja Katolik Antonius Catholic Church Jalan Robertson di dalam daerah Dang Wangi dalam Wilayah Persekutuan Kuala Lumpur telah mengedar dadah berbahaya jenis Methamphetamine [berat bersih : 761.3 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta yang sama."
Prosecution Case
[2] The narrative advanced by the prosecution revealed that on 24 October 2019 at around 12.05 am, the complainant, Inspector Mohd Haszaruddin bin Kamaruzzaman (PW2) headed a team of police from the Bahagian Siasatan Jenayah (Criminal Investigation Unit) IPD Dang Wangi, Kuala Lumpur to conduct an observation in front of 7 Eleven G-3 Idaman Robertson, No. 2, Jalan Robertson, 50150 Kuala Lumpur.
[3] After conducting an observation for around 15 minutes, the complainant and his team saw two (2) male Chinese walking into the said 7 Eleven shop. After several minutes, the two (2) male Chinese exited the 7 Eleven shop.
[4] At that juncture, the complainant and his team approached the two (2) male Chinese and introduced themselves as senior police officers and displayed their authority card.
[5] The two (2) male Chinese were placed under arrest and a physical examination was carried out on them but nothing incriminating was found. However, the physical examination carried out on the male Chinese Muslim who was subsequently identified as the Accused revealed a set of keys in the right front pocket of his jeans.
[6] Among the set of keys were three (3) keys bearing the "Honda" logo and one (1) unbranded remote-control device. PW2 then asked the Accused about the set of keys recovered and the Accused in response motioned towards a motor vehicle located about 30 meters from where they stood.
[7] The Accused then led PW2 and the rest of the raiding party to a motor vehicle.
[8] PW2 upon approaching the vehicle found that it was a black Honda Accord 2.0 bearing a registration number WJC 9872 (vehicle) in a locked condition.
[9] PW2 then asked the Accused if he kept any incriminating items and the Accused replied that it was in the boot of the vehicle.
[10] Using the set of keys recovered from the Accused, PW2 opened the boot of the vehicle and asked the Accused to retrieve a box located in the boot.
[11] The Accused retrieved from the boot one (1) brown box with the wordings "INSTANT NOODLE SHRIMP TOM YAM FLAVOUR MAMA" wrapped with transparent plastic.
[12] PW2 seized the said box and opened it in front of the Accused and took out one (1) green plastic packet with the writing "CHINESE PIN WEI" and found inside one (1) aluminum paper wrapping containing one (1) transparent plastic packet that contained one (1) compressed crystal substance suspected to be Methamphetamine weighing approximately 1020 grams gross.
[13] PW2 seized all the exhibits while further examination conducted on the said vehicle revealed nothing more incriminating.
[14] PW2 then said that he was led by PW4 to a black Mercedes car bearing the registration number VCV 7227 which was parked about 15 meters from the said Honda vehicle.
[15] An examination conducted in the Mercedes car revealed nothing incriminating.
[16] PW2 brought all the exhibits, the Accused and PW4 back to the Bahagian Siasatan Jenayah Narkotik Daerah ("BSJND") Dang Wangi, Kuala Lumpur and handed the exhibits together with the Accused to the investigating officer on 24 October 2019 at around 10.00 am.
[17] After arrival at the BSJND IPD Dang Wangi, PW2 weighed the drug exhibits and found it to be 1,020 grams gross. PW2 made markings on each of the wrappings around the compressed crystal lump which he identified in Court as being the markings he made.
[18] PW2 prepared the Search List (Exhibit P15) and the Acknowledgment of Handover of Exhibits Form (Exhibit P16) to
