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2024 MarsdenLR 2648
COURT OF APPEAL PUTRAJAYA
SEYEDMOHSEN NAMAZIVAJ SEYEDREZA – Appellant
Versus
PP & OTHER APPEALS – Respondent
[Criminal Appeal Nos: P-05(M)-577-12/2019 P-05 (M)-595-12/2019 & P-05 (M)-609-12-12/2019]
In drug manufacturing cases, possession need not be proven to establish trafficking under the Dangerous Drugs Act 1952, as direct evidence of manufacturing suffices for conviction.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 2, 39B(1)(a) and 39B(1)(c) – Appeal against conviction and death sentence for drug trafficking by manufacturing methamphetamine – The trial judge amended the charge from s 39B(1)(c) to s 39B(1)(a) after establishing a prima facie case – The court found sufficient evidence of manufacturing without needing to prove possession – The prosecution's evidence was deemed overwhelming, leading to the conviction of the appellants. (Paras 1-58)
(B) Common intention – The court held that common intention can be inferred from the conduct of the accused and the circumstances surrounding the case – The presence of the accused at the scene during the raid and the evidence of drug processing established their complicity. (Paras 45-47)
Facts of the case: The appellants were charged with manufacturing methamphetamine after a police raid revealed a drug processing operation at a premises in Penang, where they were found present with significant quantities of chemicals and equipment. (Paras 1-12)
Findings of Court: The court upheld the trial judge's findings that the prosecution had proven the case beyond a reasonable doubt, affirming the conviction and death sentence. (Paras 57-58)
Issues: The main issues included whether the trial judge erred in amending the charge and whether possession needed to be proven for a manufacturing charge. (Paras 13-26)
Ratio Decidendi: The court ruled that for manufacturing dangerous drugs, possession does not need to be proven, and the evidence presented was sufficient to establish the appellants' involvement in the drug trafficking operation. (Paras 28-30)
Result: Appeal dismissed; conviction and sentence affirmed. (Paras 57-58)
JUDGMENT
Introduction
[1] This is an appeal against the conviction and sentence of the three (3) Appellants ie SeyedMohsen Namazivaj SeyedReza (first appellant), Balakrishnan a/l Jaganathan (second appellant) and Mohammad Abbasi Younes (third appellant) on the amended charge under s 39B(1)(a) of the Dangerous Drugs Act 1952 .
[2] All the three Appellants were found guilty and convicted of the offence by the Penang High Court. They were each sentenced to death.
[3] Being dissatisfied with the said decision, the three Appellants appeal to this Court.
The Charge
[4] To begin with, initially there were four (4) accused charged in the High Court at Georgetown, Penang under s 39B(1)(c) of the Dangerous Drugs Act 1952 .
[5] They were as follows:
i) Balakrishnan a/l Jaganathan as the first accused;
ii) Mohammad Abbasi Younes as the second accused;
iii) SeyedMohsen Namazivaj SeyedReza being the third accused; and
iv) Lacheme Devi a/p Balasundram being the fourth accused.
[6] The original charge preferred against all the four accused reads as follows:
"Bahawa kamu bersama-sama pada 20 Ogos 2015jam lebih kurang 2210 hrs di premis No 57B, Perindustrian Kecil Taman Sri Rambai, dalam Daerah Seberang Perai Tengah, di dalam Negeri Pulau Pinang telah melakukan suatu perbuatan bagi persediaan bagi tujuan mengedar dadah berbahaya jenis Methamphetamine seberat 48,623 gram. Oleh itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(c) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta yang sama dan dibaca bersama s 34 Kanun Keseksaan."
[7] At the end of the prosecution case, the learned High Court Judge found that a prima facie case of trafficking by way of manufacturing was established against all the accused and amended the charge to one of an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 . The four accused were called upon to enter their defence on the amended charge. They elected to give evidence under oath.
[8] At the end of the defence case, the learned trial judge acquitted and discharged the 4th accused for having successfully raised a reasonable doubt in the prosecution case. Whilst the present three appellants/accused were convicted and sentenced to suffer death. Against the said order, the three appellants appeal.
[9] We will for convenience in this appeal, refer the three appellants in the manner they were referred to in the High Court.
The Prosecution's Case
[10] The case of the prosecution was well laid out by the learned trial judge in his grounds of judgment which is reproduced herein:
"1. The prosecution's evidence shows that the police had targeted a premise for surveillance at the address of 57B, Perindustrian Kecil Taman Sri Rambai, dalam Daerah Seberang Perai Tengah, Penang ("the premise").
2. The surveillance was carried out by 2 separate teams of police officers at different times. The first team was led by ASP Mohd Suhaimi (SP7). SP7 testified that on 19 August 2015 at about 9AM he had received a tip off of drug processing taking place at the premise.
3. SP7 arrived outside the premise at 5PM on 19 August 2015 and started the surveillance from a distance of 50 to 70 meters where he could see the entrance of the premise. SP7 divided his team into a number of groups each with their respective instructions. At 5PM SP7 saw a lorry with a red head arrive at the premise. He saw an Indian man later identified in Court as the 1st accused alighting from the lorry. The 1st accused carried out a few boxes from the lorry and brought them into the premise. The 1st accused then left the premise.
4. At about 6.41 pm the same day SP7 saw the 1st accused return to the premise in a black MyVi car bearing the registration number WVT 3454. This time the 2nd 3rd and 4th accused who were with the 1st accused alighted from the car and entered into the premise.
5. At about 9.30 pm SP7 saw the 1st and 4th accused leaving the premise and return at 10.30 pm bringing back food packets and they again entered the premise. None
