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2021 MarsdenLR 2757
COURT OF APPEAL PUTRAJAYA
CHAN KAH KIN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: R-05(M)-47-02-2020 & R-05(M)-63-02-2020]
Possession of dangerous drugs can be established via statutory presumption, with ownership of the vehicle being irrelevant to the charge of trafficking.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 39B(1)(a) and 39B(2) – Trafficking in dangerous drugs – Appellant charged with possession of 19,293.6 grams of Methamphetamine found hidden in car – Conviction and mandatory death sentence upheld – Court ruled ownership of car irrelevant, focusing on possession and control over the drugs. (Paras 1-39)
(B) Presumption of possession – Section 37(d) presumption considered by trial judge, requiring accused to rebut this presumption on a balance of probabilities. (Paras 32-34)
Facts of the case: Appellant drove from Thailand into Malaysia, where drugs were discovered within his vehicle. Police concluded possession and trafficking due to established control over the drugs hidden in the dashboard.
Findings of Court: The prosecution successfully proved that the appellant had knowledge and possession of multiple drug packages, satisfying the criteria for trafficking as per the Act.
Issues: Validity of the prima facie case; sufficiency of evidence on possession; applicability of statutory presumption.
Ratio Decidendi: Appellant’s control and knowledge of drugs inferred from circumstantial evidence; ownership of vehicle not required to substantiate the charge.
Result: Appeal dismissed, conviction and death sentence affirmed.
JUDGMENT
Introduction
[1] The appellant drove a car from Thailand into Malaysia on 19 February 2017 via the Padang Besar border crossing in Perlis. At the ICQS Complex Padang Besar the appellant was detained and taken with the car to IPD Padang Besar, where an inspection of the car was carried out by a police team. The police found 19,293.6 grams of Methamphetamine behind the dashboard of the car. Consequently, the appellant was charged for an offence of trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act ("Act"), and convicted by the High Court. He was sentenced to mandatory death by hanging pursuant to s 39B(2) of the Act.
[2] The appellant being dissatisfied with the High Court's judgment appealed against conviction and sentence. He filed two Notices of Appeal, one through his solicitors, which was registered as Rayuan Jenayah No: R-05(M)-47-02/2020, and the other through the Pusat Koreksional Perlis, Jabatan Penjara Malaysia, which was registered as Rayuan Jenayah No: R-05(M)-63-02/2020. The appeals are in effect the same.
[3] We heard and dismissed the appeal for the following reasons.
The Charge
[4] The charge against the appellant read:
"Bahawa kamu pada 19 Februari 2017, jam lebih kurang 5.05 petang di perkarangan IPD Padang Besar, Padang Besar, Perlis, di dalam daerah Padang Besar, di dalam Negeri Perlis, telah didapati mengedar dadah berbahaya iaitu jumlah berat 19,293.6 gram dadah jenis Methamphetamine dan dengan itu kamu telah melakukan kesalahan dibawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum dibawah s 39B(2) Akta yang sama"
Background Facts
[5] On 19 February 2017, ASP Soh Thong Keng (SP2) from the Pasukan Tindakan Khas, Jabatan Siasatan Jenayah Narkotik, Bukit Aman, Kuala Lumpur, acting on information received led a police team to the ICQS Complex at Padang Besar, Perlis. The police team waited in ambush at the ICQS Complex Padang Besar. At about 4.48pm SP2 stopped a Nissan Grand Livina car bearing registration number CCX 5686 ("the car") being driven by the appellant from Thailand into Malaysia through the ICQS Padang Besar. The appellant was arrested and the car detained. As the IQCS Complex was not conducive for the police to conduct a search of the car, the appellant was handcuffed and placed in the back seat of the car and driven by the police to the compound of the IPD Padang Besar, Perlis.
[6] The car was then thoroughly examined by means of x-ray scanning and physical search. After about two hours of intensive search, the police found 26 plastic packages hidden in the dashboard of the car containing substance suspected to be dangerous drugs. SP2 lodged two police reports as regards the arrest of the appellant and the seizure of the case exhibits.
[7] A Search List was done by SP2, and the appellant together with the seized items were handed over to the Investigation Officer ASP Poobalan (SP5). SP5's investigation revealed that the car was registered in the name of one Lai Ngow Chin, who was deceased at the time of the commission of the offence.
[8] The 26 plastic packages and their contents were sent for chemical analysis at the Jabatan Kimia Malaysia, where the chemist En Khairuzzaman bin Mustafa (SP3) analysed and found the contents of the 26 plastic packages to be Methamphetamine weighing 19,293.6 grams Methamphetamine is a dangerous drug listed in the First Schedule to the Act.
[9] The accused was accordingly charged for an offence under s 39B(1)(a) of the Act.
[10] At the close of the prosecution case, the learned trial judge found that the prosecution had proved a prima facie case, and called upon the appellant to enter his defence. The appellant gave sworn testimony. At the end of the defence case, the learned trial judge found that the prosecution had successfully discharged its burden to prove the case beyond reasonable doubt, and thus convicted the appellant as charged and sentenced him to mandatory death by hanging.
The Appeal
[11] The appel
