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1997 MarsdenLR 1896
COURT OF APPEAL, KUALA LUMPUR
SHAIK DAUD ISMAIL, JCA
WONG NAM LOI – Appellant
Versus
PUBLIC PROSECUTOR – Respondent
CRIMINAL APPEAL NO: P 05-86-94
Possession of illicit drugs requires proof of both physical custody and subjective knowledge. In the absence of direct evidence, knowledge may be inferred from an accused person's behavior, inconsistent or incriminating conduct, and voluntary statements made during or after the discovery of the contraband.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a) and 39B(2) - Trafficking in drugs - Conviction and death sentence - Appellant charged with trafficking in 20,269.5 grams of heroin found in a refrigerator inside a vehicle driven by him - Prosecution must prove custody, control, and knowledge to establish possession - Mere proof of custody and control is insufficient without proof of knowledge - Knowledge can be inferred from surrounding circumstances and conduct of the accused - Statements leading to discovery are admissible - Trial court's findings of fact regarding knowledge are not to be disturbed unless perverse.
Facts of the case:
The appellant was stopped at a road block while driving a vehicle containing a refrigerator. Upon examination, police discovered blocks of heroin weighing 20,269.5 grams inside the refrigerator. The appellant denied knowledge of the contents, claiming he was an innocent carrier who agreed to transport the item for a friend. The trial court convicted the appellant and sentenced him to death, finding that he had knowledge of the illicit cargo based on his conduct and oral statements made to the police.
Findings of Court:
The court held that while the prosecution successfully established custody and control, it also sufficiently proved the appellant's guilty knowledge through his silence during the discovery, his incriminating gestures towards the hidden items, and his subsequent admissions and bribery attempts. The court found these statements to be voluntary and the trial judge's reliance on such evidence to be proper.
Issues: The main issues were whether the prosecution sufficiently established the appellant's knowledge of the drugs to support a conviction for trafficking, and whether the oral statements and gestures made by the accused were properly admitted as evidence.
Ratio Decidendi: Possession requires full and exact knowledge of the existence and whereabouts of the chattel. Knowledge, in the absence of direct evidence, may be inferred from surrounding circumstances, including the accused's conduct during search and discovery, and voluntary admissions. Once the prosecution has established a prima facie case through both direct evidence and necessary inferences, the burden shifts to the defense to raise reasonable doubt, which the appellant failed to do.
Result: Appeal dismissed; conviction and sentence confirmed.
Shaik Daud Ismail JCA:
The appellant was convicted by the Penang High Court for an offence of trafficking in 20,269.5 grams of heroin alleged to have been committed on 28 July 1989 in front of the Nibong Tebal Police Station, an offence under s. 39B(1)(a) and punishable under s. 39B(2) of the Dangerous Drugs Act 1952, (Act). He was accordingly sentenced to death.
The facts leading to the arrest of the appellant are not in dispute and they are that at 6.50 am on 28 July 1989 the appellant was seen driving a motor van bearing registration number BCR 7161 along the main trunk road from Butterworth to Nibong Tebal. It so happened that at about that time the police had put up a road block in front of the Nibong Tebal Police Station and when the appellant arrived at the said road block, he was stopped. On examination of the van the police found a twin door refrigerator lying on its side behind the driver's seat. In the glove compartment was also found the appellant's international passport, driving licence, Public Services Vehicle licence badge, income tax assessment notice and two receipts issued by the London Hotel in Penang.
When the refrigerator was examined by the police, they found inside, four plastic bags containing a total of eighty blocks of white substance wrapped in plastic sheets, believed to be heroin and indeed confirmed by the government chemist to be heroin weighing 20,269.5 grams. The appellant was the driver and sole occupant of the van transporting the refrigerator in which the police recovered the heroin.
The appellant in his defence on oath testified that he was a businessman dealing in plastic bags prior to 28 July 1989. On 4 July 1989 he went to Padang Besar, near the Perlis Thai border where he met a friend simply known to him as "Lim". Apparently this Lim requested him to take a refrigerator and a slot machine to Kuala Lumpur, which request he casually agreed. He then parked the van in the compound of a mosque in Padang Besar, and proceeded to Thailand by taxi. He claimed that between 21 July 1989 and 25 July 1989 he was in Haadyai Thailand, where he purchased some Korean ginseng and two deer penises. He returned to Padang Besar, took his van and drove it to a spot in front of the Padang Besar Taxi Stand, commonly used by him and other traders. There he met Lim again and once more Lim repeated his request about the refrigerator and slot machine to be delivered to Kim Mun Used Car in Kuala Lumpur.
The appellant agreed and soon after Lim and two others brought a refrigerator and a slot machine. The appellant said that as he was busy trading, he handed over the van keys to Lim who loaded the refrigerator and the slot machine. The appellant said that the refrigerator doors were shut and a string was tied around it. The appellant said that he had known Lim for eight years and had no reason to suspect anything and as such he did not inspect the refrigerator. At about 6 pm on 25 July 1989 he left Padang Besar for Penang and arrived in Penang at 9 pm the same night. That night, the appellant testified that he slept in the van but for the next two nights he slept at a hotel called London Hotel in Georgetown, hence the receipt from the hotel. He did not, however, explain why he slept in the van the first night. At 5.30 am on 28 July 1989, he left Penang for Kuala Lumpur where he was stopped and detained at the road block at Nibong Tebal. He testified that he only knew that the refrigerator contained "something" when it was being unloaded from the van when the refrigerator door opened and "something" fell out. He was asked by one of the police officers what it was and he replied that he did not know. The sum total of the appellant's defence is that he had no knowledge whatsoever of the contents of the refrigerator. In other words his defence is that he was an innocent carrier of the refrigerator which in fact belonged to Lim, and furthermore he himself did not load it into his van but Lim did.
Whilst the prosecution
