Back
COURT OF APPEAL , PUTRAJAYA
PP – Appellant
Versus
RAZALI JOHARI – Respondent
[Criminal Appeal No: W-05-9-2002]
JUDGMENT
Gopal Sri Ram JCA:
[1] The accused (respondent before us) was charged for trafficking in 738.31 grams of cannabis, an offence punishable under s. 39B(2) of the Dangerous Drugs Act 1952 ("the Act") . At the close of the prosecution's case the learned trial judge, acting on the evidence before him, amended the charge to one of possession under s. 6 of the Act punishable under s. 39A(2) . The accused pleaded guilty to the amended charge and was sentenced to 12 years imprisonment from the date of his arrest. Whipping was also imposed. The prosecution being dissatisfied with the decision of the learned judge to amend the charge appealed to this court. We heard and dismissed the appeal. The reasons for our decision are now produced.
[2] The facts of the case are these. On 24 October 2000 at about 5.15am, PW7 (Chief Inspector Chia Aik Chin) acting on information that he had received conducted a raid on a house in Jalan Datuk Keramat, Kuala Lumpur. The front door was unlocked. So, the police party entered. PW7 found four men lying asleep on the floor of the living room. Two members of the police party, namely, PW7 and PW8 went to the middle part of the house. There they found a room (we will refer to it for convenience as the middle room) that was padlocked. They then went to the kitchen and found the accused sleeping there. They searched the accused and found a bunch of three keys in his trouser pocket. One of these opened the padlocked middle room. On being questioned, the accused made certain statements (including pointing at a bag) about the occupation of the middle room and its contents. It is in evidence that PW7 found a shoebox containing 190 clear packets of dry leaves. There was a leather bag on a shelf in the room. It was found to contain 290 clear packets of dry leaves and two compressed materials one wrapped in clear plastic and the other in foil. Subsequent chemical examination found these exhibits to contain a total of 738.31 grams of cannabis. It is also in evidence that while in the room the police found a pair of trousers from which they extracted the accused's identity card and some cash.
[3] At the trial, the prosecution sought to adduce the statements made by the accused to the police at the scene. The learned judge excluded these on the grounds that they were made after arrest and without a caution having been administered. We are in agreement with the learned judge's decision on this point. Whether a person was under arrest in given circumstances is a pure question of fact. See, PP v. Kang Ho Soh . On the facts before him, the learned judge was entirely correct in holding that the accused was under arrest at the point of time at which he made the statements in question. It is settled law that any statement made by a person after his or her arrest is inadmissible unless made under caution. See, Jayaraman Velayuthan & Ors v. PP ; Public Prosecutor v. Kang Ho Soh . And, in this context, for purposes of determining admissibility, acts of pointing or other gestures are regarded as statements. See, Emperor v. Nga Kyaing AIR [1926] Rang 1120; Khabiruddin v. Emperor AIR [1943] Cal 644; Lee Lian v. Public Prosecutor[1956] 1 MLRH 222; [1956] MLJ 191; Lim Kah Wan v. Public Prosecutor ; Asan Tharayil v. State of Kerala [1981] Cri LJ 1165; Y Jeyamuraly Yesiah v. PP; [2007] 5 MLJ 224; [2007] 5 CLJ 605 . It follows from these authorities that the statements, including any gestures, such as pointing, made by the accused after his arrest were inadmissible as they were made in the absence of a prior caution.
[4] The other point made by the prosecution was that the mere finding of the drug in the room occupied by the accused was sufficient to bring home the charge of trafficking. The learned judge rejected this argument. We are in agreement with the learned judge. It has been repeatedly held that to constitute trafficking there must be proof of some overt act on the part of an accused and that mere passive possession is ins
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
