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1993 MarsdenLR 1360
HIGH COURT, PENANG
VINCENT NG KIM KHOAY, JC
PUBLIC PROSECUTOR – Appellant
Versus
TAN AH HUAT – Respondent
CRIMINAL TRIAL NO. 47(58)-13-87
The failure to mark or initial drug exhibits immediately upon seizure is not fatal to the prosecution's case, provided the court is satisfied through other circumstantial evidence and testimony that the identity and integrity of the seized exhibits were maintained.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a), 39B(2), 37(d) and (da) - Drug trafficking - Failure to mark or initial drug exhibits at the time of seizure - Effect of non-marking on evidentiary value - Requirement to establish chain of custody and identity of exhibits - Standard of proof in drug trafficking cases.
(B) Evidence - Circumstantial evidence - Weight of circumstantial evidence in proving possession and knowledge - Whether an accused can be convicted based on exclusive control of a vehicle where illicit drugs were found - Rebuttal of presumptions under the Act.
Facts of the case:
The accused was charged with drug trafficking after being found in control of a vehicle containing a significant quantity of heroin. A police witness observed the accused handling a plastic bag containing drug packets recovered from the vehicle's boot. The accused asserted that he had lent the vehicle to an acquaintance for several hours during the day and denied knowledge of the contents. The defense challenged the identity of the drug exhibits, noting they were not marked or initialed by the seizing officer until two days post-seizure.
Findings of Court:
The court found that the non-marking of drug exhibits is not inherently fatal to the prosecution if the chain of custody is established through other evidence. The court concluded that the identification of the drugs was sufficiently established despite the administrative lapse in marking. The defense's narrative regarding the borrowing of the vehicle was rejected as a fabrication (an 'intangible creature of convenience').
Issues: Whether the failure to mark drug exhibits immediately upon seizure creates fatal doubt regarding their identity, and whether the accused successfully rebutted the statutory presumptions of trafficking and possession.
Ratio Decidendi: While marking and initialling drug exhibits immediately upon seizure is desirable for evidentiary clarity, it is not an absolute requirement for the validity of the case if the court is satisfied through other evidence that the integrity of the exhibits was maintained. The prosecution establishes a case when evidence, including exclusive custody of the vehicle, outweighs the defense's unsubstantiated claims.
Result: Accused found guilty and sentenced to death.
Vincent Ng Kim Khoay JC:
The Accused was charged as follows:
Bahawa kamu pada 18 September 1986, jam lebih kurang 12.20 tengahari di hadapan rumah No. 29, Jalan Siakap 12, Seberang Jaya, Perai, dalam Daerah Butterworth, dalam Negeri Pulau Pinang, bagi pihak diri kamu sendiri telah mengedar dadah merbahaya, iaitu 601.0 gram heroin dan dengan itu kamu telah melakukan kesalahan di bawah s. 39B(1)(a) Akta Dadah Merbahaya 1952 (Semakan 1980) dan boleh dihukum di bawah s. 39B(2) Akta yang sama.
The prosecution case centered around only one material witness namely D/K Abu Bakar bin Murad (PW2) who testified as follows:
On 18 September 1986 at about 12.20 p.m. he made his rounds alone on his motor cycle in the area of Mak Mandin and when he reached Jalan Began Lallang, he saw a grey coloured Datsun Sunny motor car bearing registration No. PBG 7171 (P2) travelling from the direction of Bagan Lallang towards Permatang Pauh. He then stopped at the Jalan Bagan Lallang/Jalan Mak Mandin junction. When P2 reached Jalan Permatang Pauh/Jalan Bagan Lallang junction it turned left. At that time the weather was fine and the windshield of P2 was clear and he could see it's driver who was a male Chinese, as it was travelling at a slow speed. There was then many vehicles but he tried to trail P2. P2 was then travelling at 20 to 25 k.p.h. It turned right and entered Jalan Hussein Onn. He followed P2 for 25 minutes for around 6 kilometres.
P2 then pulled up in front of a house (later ascertained as bearing address No. 29) at Jalan Siakap 12 Seberang Jaya, Perai, Butterworth, Penang ("the said house"). P2 had not made any other stops during the period under his observation. When P2 pulled up, PW2 also stopped at a road junction at a distance of around 35 to 40 metres from where P2 had pulled up. He had a clear view of the vicinity of the said house in front of which P2 had pulled up. The said house bore address No. 29, as shown in P30E.
He then saw the driver, who was the male Chinese, get out from the car (P2), look left and right and proceed to open the boot of P2. PW2 then approached and reached the male Chinese driver who was then in the act of lifting a plastic bag P6 containing P8(A) to (C) from the boot of P2. He immediately identified himself as a police officer and caught hold of the male Chinese from behind. This resulted in the latter putting up a little struggle and dropping P6 back into the boot of P2. The male Chinese was then handcuffed. PW2 was at the time not wearing police uniform. The male Chinese was identified by this witness as the accused. PW2 then examined the contents of the plastic bag (P6) and discovered three packages wrapped in newspapers [P8(A) to (C)], and upon unwrapping one of the three packages, he found a plastic packet containing pink coloured granules (ketul-ketulan) which he suspected to be heroin. PW2 then instructed the accused to get back into the front passenger seat of P2 and he (PW2) drove same together with the accused and the contents of the boot of P2 to the police station, and left his (PW2) motorcycle at the scene of the offence.
PW2 arrived at the police station at around 1.20 p.m., got the accused out and in the presence of the accused, PW2 examined the boot of P2, wherein he found the following:
(a) One plastic bag (P6) containing three packages wrapped in newspaper [P8(A) to (C) mentioned earlier. (b) one yellow paper bag (P10) containing 4 plastic packets [P11(A) to (D)] containing a white powder suspected to be drugs. (Later confirmed as caffeine). (c) one plastic packet containing a whitish substance suspected to be heroin base (P13). (d) one box (P18) containing weighing instruments (P19). (e) one plastic packet (P15) containing empty plastic packets (P16). (f) one metal basin (P21). (g) one sieve (P23). (h) one wooden spoon (P25).
After PW2 had examined the boot of P2 he took the aforesaid exhibits and the accused to the Cawangan Anti-Dadah office and wrote out a search list (P31) listing out al
