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2011 MarsdenLR 2836
ZALEHA ZAHARI, SULAIMAN DAUD, BALIA YUSOF WAHI
LEE KONG MENG – Appellant
Versus
PP – Respondent
The court affirmed the conviction for drug trafficking, establishing that knowledge and control inferred from the accused's conduct and the quantity of drugs are sufficient to invoke the presumption of guilt under the Dangerous Drugs Act.
Headnote:(A) Dangerous Drugs Act 1952 - Section 39B(1)(a) - Penal Code - Trafficking in dangerous drugs - 2nd accused charged with trafficking in 5425 grams of cannabis - 1st accused acquitted due to lack of evidence showing common intention or control over drugs - Appellant convicted based on evidence showing he placed drugs in boot of taxi, establishing control and knowledge - Campus judge found defendant's denial insufficient to rebut presumption of trafficking - (Paras 1-15)
(B) Burden of proof - Presumption of trafficking invoked, burden on accused to negate presumed knowledge of drugs - Judge held evidence of conduct and drug quantity sufficient to infer knowledge, affirming conviction and sentence of death. (Paras 14-16)
Facts of the case:
The 2nd accused, along with another, was charged with trafficking 5425 grams of cannabis. Evidence from police and taxi driver indicated he placed the drugs in the taxi's boot and exhibited behaviors suggesting knowledge of its illegal contents.
Findings of Court:
The trial court found strong evidence of the 2nd accused's ownership and control of the drugs, affirming the conviction based on established drug trafficking presumption.
Issues: The main issues were whether the 2nd accused had control of the drugs and knowledge of their nature.
Ratio Decidendi: The court concluded that the 2nd accused's acts of placing drugs in the taxi and his subsequent actions warranted the inference of knowledge regarding the illegal contents of the bag.
Result: Appeal dismissed.
Lee Kong Meng (the 2nd accused in the High Court/Appellant in this appeal) was charged together with Wai Hap Kuen (the 1st accused) under section 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") read together with section 34 of Penal Code with trafficking in dangerous drugs, ie, 5425 grams cannabis. The 1st accused was acquitted and discharged at the end of the prosecutions case. The trial Judge however held that the prosecution had proved a prima facie case against the 2nd accused and called upon the 2nd accused to enter his defence. On 13.03.08, the High Court Judges found the 2nd accused guilty as charged, convicted him, and then imposed the mandatory sentence of death upon him. Hence this appeal.
We dismissed the 2nd accused appeal against conviction and sentences for the following reasons.
The High Court Judges Decision
The High Court Judges appraisal of the evidence adduced by the prosecution, his findings and decision are as follows:
On 18.8.2003 ASP Tan Boon Hooi (SP2) received information of drug trafficking activities by usage of a taxi at Danau Indah Condominium. At about 3.00 a.m. SP2, together with five other officers, went to Danau Indah Condominium to carry out surveillance and observation. At about 4.50 a.m., SP2 saw a taxi, registration No. HWA 8844, entering the Condominium complex. About 10 minutes later the said taxi proceeded to make its way out of the complex. SP2 stopped the taxi near the security post and identified himself as a police officer. The three persons in the taxi were instructed to get out of the taxi. The driver of the taxi was identified as Lee Fok Keong (SP6), the passenger seated in the front seat was Wai Hap Kuen (the 1st accused), whilst the passenger seated in the rear seat was Lee Kong Meng (the 2nd accused).
The result of a search of the taxi carried out by SP2 was the recovery of black plastic bag (Exhibit P31) containing a box (Exhibit 32) which in turn contained 6 compressed blocks wrapped in aluminium (Exhibit P24 A-C) from the boot of the taxi suspected to be cannabis. All three persons in the taxi, together with the exhibits recovered, were then brought to IPK Narkotik Kuala Lumpur then subsequently handed to the Investigating Officer, Chief Inspector Yap Huat Tian (SP8).
The taxi driver, Lee Fook Keong (SP6), testified that on 18.8.2003, the 1st accused was a passenger in his taxi from Cheras to a coffee shop at Pandan Indah. At a bus stop in front of the coffee shop he stopped. The 2nd accused then entered the taxi and sat at the rear passenger seat. The 2nd accused asked SP6 to go to Taman Desa. As SP6 was unfamiliar with the area, the 2nd accused gave SP6 directions how to get there. When they arrived at Taman Desa, the 2nd accused asked SP6 to enter the condominium complex. SP6 did so. SP6 missed the entrance to the car park of the Condominium, which was on the upper level. SP6 refused to reverse in order to enter the upper level of the car park when the 2nd accused asked him to do so.
The 2nd accused then went out of the taxi and told SP6 to wait for him as he wanted to pick up something. The 1st accused remained in the taxi. About 10 minutes later the 2nd accused returned asked SP6 to open the boot of the taxi, which SP6 did by pulling a lever in the taxi. SP6 saw the 2nd accused putting a black plastic bag in the boot of the taxi. The 2nd accused then re-entered the taxi and asked SP6 to exit out of the Condominium complex. On their way out they were all detained.
Based on these evidence, at the end of the prosecutions case, in respect of the 1st accused, the High Court Judges finding was that, there was no evidence to show that the black plastic bag containing the incriminating drugs was under the custody and control of the 1st accused. Nor was there any evidence of a pre-arranged plan between the 1st and 2nd accused to traffic in dangerous drugs. There was no evidence of a common intention between the 1st accused with the 2nd Appellant to do so.
