1. Three individuals charged with possession and trafficking of dangerous drugs under the Dangerous Drugs Act 1952 and common intention under the Penal Code. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 )
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2020 MarsdenLR 659
HIGH COURT (PENANG)
AHMAD SHAHRIR MOHD SALLEH, JC
Public Prosecutor – Plaintiff
Versus
Loo Seong Chin & Ors – Defendant
CRIMINAL TRIAL NO PA – 45A – 32 – 08/2016
Advocates:
Devkumar K Kumaraendran (Teh See Khoon with him) (Kumar & Co) for the first accused.
Jayaraj Thurairaj (T Jayaraj & Co) for the second accused.
Maanveer Singh (Preeya Singaravelu with him) (Maanveer Singh Dhillon & Co) for the third accused.
Devkumar K Kumaraendran (Teh See Khoon with him) (Kumar & Co) for the first accused.
Jayaraj Thurairaj (T Jayaraj & Co) for the second accused.
Maanveer Singh (Preeya Singaravelu with him) (Maanveer Singh Dhillon & Co) for the third accused.
Important Points
Possession and knowledge of dangerous drugs can be inferred from the proximity of the accused to the contraband and the presence of packaging paraphernalia. Common intention is established through circumstantial evidence of participation, while belated defences not raised during cross-examination are viewed with suspicion.
Subject
Criminal Law - Drug Offences
Act Referred
Dangerous Drugs Act 1952: S.12(2), S.39A(1), S.39B(1)(a), S.37(da)(xvi)
Penal Code: S.34
Criminal Procedure Code: S.180, S.182A
Penal Code: S.34
Criminal Procedure Code: S.180, S.182A
Headnote
(A) Dangerous Drugs Act 1952 - Sections 39A(1), 39B(1)(a), 39B(2), and 37(da)(xvi) - Penal Code - Section 34 - Criminal Procedure Code - Sections 180 and 182A - Possession and trafficking of dangerous drugs - Common intention - Knowledge and custody - Statutory presumption of trafficking - Belated defence - Possession involves the element of custody or control and knowledge of the thing alleged to be in possession; a person is in possession if they are in a position to deal with the item or if it is presumed they intended to deal with it (Paras 15-16) - Knowledge is generally facts-centric and normally inferred from surrounding circumstances, such as the presence of items conducive for packing and distributing drugs (Paras 26-29).
(B) Penal Code - Section 34 - Common intention - Common intention is a state of mind that may be pre-arranged or arise during the commission of the offence; it can be inferred from factual circumstances, including presence at the scene for the purpose of facilitating or promoting the commission of the offence (Paras 30-31).
(C) Criminal Procedure Code - Section 182A - Evaluation of defence - A defence that is not revealed during investigation nor confronted to relevant prosecution witnesses during cross-examination is considered an afterthought, which is difficult to believe and arouses suspicion as to its veracity (Paras 62-63).
Facts of the case:
Three individuals were arrested during a raid in a room where they were found sitting and encircling a small zipper bag containing heroin and methamphetamine. Also found in the room were a digital weighing device, a plastic sealer, a modified glass canister for use as a bong, and other packaging materials. One of the accused occupied the room. The accused claimed they were in the living room at the time of the raid and were only brought into the room by the police, further alleging that the drugs belonged to another occupant of the apartment.
Findings of Court:
The court found that the proximity of the three accused to the drugs and the presence of packaging paraphernalia established a strong inference of possession and knowledge. The circumstances of the arrest at 1:30 am, with the accused wide awake and encircling the contraband, established a common intention to traffic. The defence's version was found to be in direct contrast with the prosecution's evidence and was deemed a belated afterthought.
Issues: Whether the prosecution established a prima facie case; whether the accused had possession and knowledge of the dangerous drugs; whether there was common intention among the accused to traffic the drugs; and whether the defence raised a reasonable doubt.
Ratio Decidendi: Possession and knowledge can be reasonably inferred when accused persons are found in close proximity to contraband and drug-packaging equipment. Common intention is established when the accused's presence at the scene facilitates the crime. A defence that is not raised during the cross-examination of prosecution witnesses is treated as a belated afterthought and carries minimal weight in rebutting the prosecution's case.
Result: Convicted on both charges; sentenced to death.
(B) Penal Code - Section 34 - Common intention - Common intention is a state of mind that may be pre-arranged or arise during the commission of the offence; it can be inferred from factual circumstances, including presence at the scene for the purpose of facilitating or promoting the commission of the offence (Paras 30-31).
(C) Criminal Procedure Code - Section 182A - Evaluation of defence - A defence that is not revealed during investigation nor confronted to relevant prosecution witnesses during cross-examination is considered an afterthought, which is difficult to believe and arouses suspicion as to its veracity (Paras 62-63).
Facts of the case:
Three individuals were arrested during a raid in a room where they were found sitting and encircling a small zipper bag containing heroin and methamphetamine. Also found in the room were a digital weighing device, a plastic sealer, a modified glass canister for use as a bong, and other packaging materials. One of the accused occupied the room. The accused claimed they were in the living room at the time of the raid and were only brought into the room by the police, further alleging that the drugs belonged to another occupant of the apartment.
Findings of Court:
The court found that the proximity of the three accused to the drugs and the presence of packaging paraphernalia established a strong inference of possession and knowledge. The circumstances of the arrest at 1:30 am, with the accused wide awake and encircling the contraband, established a common intention to traffic. The defence's version was found to be in direct contrast with the prosecution's evidence and was deemed a belated afterthought.
Issues: Whether the prosecution established a prima facie case; whether the accused had possession and knowledge of the dangerous drugs; whether there was common intention among the accused to traffic the drugs; and whether the defence raised a reasonable doubt.
Ratio Decidendi: Possession and knowledge can be reasonably inferred when accused persons are found in close proximity to contraband and drug-packaging equipment. Common intention is established when the accused's presence at the scene facilitates the crime. A defence that is not raised during the cross-examination of prosecution witnesses is treated as a belated afterthought and carries minimal weight in rebutting the prosecution's case.
Result: Convicted on both charges; sentenced to death.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Prosecution alleged joint possession and trafficking; defence denied knowledge, contested the location of arrest, and attributed ownership of the drugs to another occupant. (Para 9 , 10 , 49 , 50 )
3. The court inferred possession and knowledge from the accused encircling the drugs and the presence of packaging materials, rejecting the belated defence as an afterthought. (Para 17 , 18 , 19 , 20 , 21 , 24 , 26 , 27 , 29 , 34 , 35 , 55 , 57 , 58 , 60 , 62 , 67 , 68 )
4. Possession and knowledge of drugs can be inferred from the accused's proximity to the contraband and the presence of drug-packaging paraphernalia. (Para 15 , 16 , 30 , 31 )
5. Accused convicted of possession and trafficking of dangerous drugs and sentenced to death. (Para 70 , 71 )
6. How is possession and knowledge of dangerous drugs established when direct evidence is lacking?
Possession involves custody, control, and knowledge. These can be inferred from surrounding circumstances, such as the accused being in close proximity to the drugs and the presence of items used for packaging or consuming the substances. (Para 15 , 16 , 21 , 26 , 27 , 29 )
7. What constitutes common intention in the context of joint drug offences?
Common intention is a state of mind that can be pre-arranged or develop on the spot. It is inferred from factual circumstances, such as presence at the scene to facilitate the crime and acts having a direct nexus to the offence. (Para 30 , 31 , 35 )
8. What is the legal effect of a defence raised for the first time during trial that was not mentioned during investigation?
Such a defence is considered an afterthought, which smacks of recent invention and arouses suspicion regarding its veracity. While the court must still consider it, its probability is viewed as minuscule if not raised at the first available opportunity. (Para 58 , 60 , 62 , 63 )
9. What is the standard for establishing a prima facie case at the close of the prosecution?
A prima facie case is established when the prosecution adduces credible evidence proving each ingredient of the offence which, if unrebutted or unexplained, would warrant a conviction. (Para 11 , 12 )
Ahmad Shahrir Mohd Salleh JC:
JUDGMENT
Introduction
[1]All the 3 accused are charged with 2 offences under the Dangerous Drugs Act 1952. The first charge is a charge under section 12(2)section 39A(1)section 39B(1)(a)section 39B(2)section 34Penal Code
The charges
[2]The charges proffered against the 3 accused read as follows:
“Pertuduhan Pertama
Bahawa kamu bersama-sama pada 02.08.2015 jam lebih kurang 1:30 pagi, di alamat No. 4, Tingkat Bawah, Jalan Mesra 2, Blok 19, Taman Mesra, Butterworth, di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang, telah didapati di dalam milikan kamu dadah 2.32 gram (2.01 gram Heroin dan 0.31 gram Monoacetylmorphines). Oleh itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2)Akta Dadah Berbahaya 1952seksyen 39A(1)Akta Dadah Berbahaya 1952seksyen 34Kanun Keseksaan
Pertuduhan Kedua
Bahawa kamu bersama-sama pada 02.08.2015 jam lebih kurang 1:30 pagi, di alamat No. 4, Tingkat Bawah, Jalan Mesra 2, Blok 19, Taman Mesra, Butterworth, di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang, didapati telah mengedar dadah berbahaya jenis Methamphetamine seberat 69.30 gram. Oleh itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a)Akta Dadah Berbahaya 1952seksyen 39B(2)seksyen 34Kanun Keseksaan
The prosecution’s case
[3]The complainant, ASP Juhaida binti Abdul Rahman (PW4) together with her raiding team carried out a raid on 02.08.2015 at No. 4, Ground Floor, Jalan Mesra 2, Block 19, Taman Mesra, Butterworth, Perai. There were 2 rooms at the ground floor apartment. When PW4 arrived at the apartment, PW4 saw the front door was opened and she went straight in.
[4]PW4 saw one Mak Chee Hong (PW5) was lounging at the living room. PW4 went in towards the 2nd room on the left and found the door to the 2nd room was closed but not locked. PW4 and her team went inside the 2nd room and saw all the three accused persons in there. The three accused persons were sitting in the room facing each other. When PW4 searched the 2nd room, she found the following items:
(a)a small blue-coloured “Hello Kitty” zipper bag (Exhibit P23) on the floor close to the position where the three accused persons were sitting. The “Hello Kitty” zipper bag contained 2 transparent plastic packets. Each of the transparent plastic packet contained substance suspected to be dangerous drugs;
(b)a glass canister which has been modified for use as a bong (Exhibit P27);
(c)a digital weighing device (Exhibit P25);
(d)a lighter (Exhibit P26);
(e)a plastic sealer (Exhibit P24);
(f)a transparent plastic packet containing a number of plastic packets (Exhibit P28);
(g)a straw (Exhibit P29); and
(h)a reminder notice dated 24.06.2015 (Exhibit P30) for outstanding telephone bill issued on behalf of the Telekom Malaysia Berhad.
[5]PW4 also searched the other room but did not find anything incriminating. The other room was occupied by the 1st accused’s father, Lu Ah Bah @ Loo Choon Huat (PW6). During the raid, PW4 said the other room was locked from the inside. PW4 seized all the items found in the 2nd room and arrested the three accused persons together with PW5 and brought them all to the Police Contingent Headquarters, Seberang Perai Utara. PW4 lodged a police report to record the seizure and the arrest vide Mak Mandin Report No. 2710/15 (Exhibit P20). The three accused persons and PW5 together with all the items seized were then handed over to the investigating officer, Inspector Nur Rafida binti Mustapah (PW7). PW6 was not arrested together.
[6]When PW4 entered the apartment, she saw PW5 was lounging at the living room. According to PW5, he occupied the living room and slept there. PW5 said the 1st accused occupied the 2nd room on the left and the 1st accused’s father, PW6, occupied the other room. When the raid took place, PW5 said he was asleep and awaken by the commotion caused by the raid. PW5 confirmed in evidence that all the three accused persons were arrested in the 2nd room on the left. PW5 identified the 2nd and 3rd accu
