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2021 MarsdenLR 155
FEDERAL COURT PUTRAJAYA
CHAN WEI LOON – Appellant
Versus
PP & ANOTHER APPEAL – Respondent
[Criminal Appeal Nos: 05(M)-145-06-2018(N) & 05(M)-146-06-2018(N)]
Possession must be established to prove trafficking in drug manufacturing cases, contrary to prior rulings, emphasizing the need for control and custody.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 2, 39B – Appeal against death sentence – Appellants charged with drug trafficking; High Court found them guilty – The Court of Appeal affirmed the conviction of the 1st appellant and acquitted the 2nd on one charge, leading to an appeal before the apex court – The essential ingredient of possession for drug manufacturing was questioned – The court emphasized possession as necessary to prove trafficking in drug manufacturing despite previous rulings to the contrary; conviction quashed on multiple grounds – Drugs found in premises rented by appellants led to conviction issues based on possession and control – Evidence showed contradictions about the location of arrest and possession of the drugs, requiring that all reasonable doubts favor the appellants. (Paras 54-96)
(B) Burden of proof – The prosecution must establish control and custody for trafficking cases; a failure to prove possession renders conviction unsafe, mandating acquittal for the appellants on the first charge. (Paras 93-96)
(C) In light of trial error and contradiction, the apex court's ruling necessitated a critical examination of the definitions and previous rulings on manufacturing and trafficking under the Dangerous Drugs Act.
[1] In the High Court at Seremban, Chan Wei Loon, the appellant in appeal No: 05(M)-145-06-2018(N), (1st appellant), and Lai Kar Meng,the appellant in appeal No: 05(M)-146-06-2018(N), (2nd appellant) (collectively referred to herein as the appellants) were charged on two charges of drug trafficking under the Dangerous Drugs Act 1952 ( DDA 1952).
[2] The High Court found the appellants guilty of both charges and had sentenced the appellants to death.
[3] The appellants appealed to the Court of Appeal. The Court of Appeal unanimously dismissed the 1st appellant's appeal and affirmed his conviction and sentence on both charges. The appeal by the 2nd appellant was also dismissed in respect of the 1st charge. However, the Court of Appeal allowed the 2nd appellant's appeal against conviction and sentence on the 2nd charge. Therefore, the 2nd appellant was acquitted and discharged on the 2nd charge.
[4] Thereby the appeal before us, by the 1st appellant against conviction and sentence on both charges; and by the 2nd appellant, against conviction and sentence on the 1st charge. The Public Prosecutor (the respondent) did not appeal against the decision of the Court of Appeal in acquitting and discharging the 2nd appellant on the 2nd charge.
[5] To appreciate the issue, we shall now lay out the background facts leading to the charges, as encapsulated by the Court of Appeal, with slight modifications.
The Case For The Prosecution
(A)The 1st Charge
[6] Acting upon information received, in the early hours on 23 October 2010, SP14 (ASP Nik Ezanee bin Mohd Faizal) with a team of police officers, raided a two-storey shophouse at No: 185, Jalan Haruan 5/6, Kawasan Komersil Oakland, Seremban ('the said shophouse'). He divided his men into four teams wherein he headed the first team; Insp Basri bin Husin (SP33) led the second team, SI Halim headed the third team; and Sjn Mustapha was head of the fourth team. Each of the teams was assigned with specific roles.
[7] Upon arrival at the said shophouse, the teams took their respective positions assigned to them. SP14 and his group positioned themselves at about 20 meters away from the said premises, facing the front portion of the said shophouse.
[8] At about 8.50 am, SP14 saw a black coloured KIA motorcar bearing the registration number NBM 3614 ('the said car') stopped in front of the said shophouse. Both the driver and sole passenger of the said car exited the car and walked towards the said shophouse. He identified the 1st appellant as the driver of the said car. The 1st appellant was wearing glasses and had a sling bag slung across his shoulders. SP14 further identified the 2nd appellant as the passenger of the car, who was earlier seated at the front passenger seat, next to the 1st appellant.
[9] The said shophouse was rented out to the 1st appellant by its owner, SP-12 (Harendran a/l Perisamy), for a period of one year vide a tenancy agreement (exh P 129). There was an express prohibition (vide cl 2.7) against subletting, assigning, or part with the legal or actual possession of the said premises or any part thereof to any person or persons except with the prior consent in writing of the landlord SP-12.
[10] SP14 saw the 2nd appellant opening the door of the said shophouse whereupon both the appellants then entered the premises. About 15 minutes later, both the appellants emerged from the premises and proceeded to pray at the praying alter, located in front of the premises. After they were done, both went back inside the said premises.
[11] The raiding team sprang into action at about 9.30 am. Two members from SP14's team broke open the front door of the said shophouse and another team proceeded to forcefully enter from the rear door of the said premises. When SP14 and his team rushed into the said shophouse, both the appellants ran towards him and his team. It resulted in the arrest of both the appellants in no time.
[12] The premises is a double-storey shophouse. Both the appell
