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2009 MarsdenLR 4399
FEDERAL COURT PUTRAJAYA
PP – Appellant
Versus
LIM HOCK BOON – Respondent
[Criminal Appeal No: 05-74-2005(B)]
[1] I have the advantage of reading the two grounds of judgments of my learned brothers Abdul Aziz Mohamad FCJ and Nik Hashim FCJ. Both judgments dealt at length on the legal position of possession. And I do not need to go into them again.
[2] As regards the respondent's defence that the drug could have been put in the car by any one of the three persons named by him, I agree with the learned trial judge that for reasons given by him that the respondent has not raised any reasonable doubt in the prosecution's case.
[3] I therefore allow the appeal and set aside the orders of the Court of Appeal. The conviction and sentence of the High Court are restored.
Background Facts
[4] The respondent was convicted and sentenced to death by the Kuala Lumpur High Court on 23 August 2004 for trafficking in dangerous drugs, ie, 892.4 grams of cannabis under s 39B of the Dangerous Drugs Act 1952 (the Act). On appeal, the Court of Appeal allowed the appeal and set aside the conviction and sentence imposed. The prosecution now appeals to this Court against the decision of the Court of Appeal.
[5] The facts are that on 28 January 2000 at about 2am Chief Inspector William Kuyal (PW8) of the Narcotic Division at the Police Headquarters in Kelang together with a police party comprising six officers proceeded to a Shell petrol station at Jalan Batu Tiga Lama, Kelang. There he and his party laid an ambush. An hour later, a silver Proton Saga No BDH 8872 came into the petrol station. It was driven three or four times through and around the forecourt of the petrol station. There was only one person in the car. It was the respondent. He was the driver. PW8 witnessed all this. When the car came to a halt, he and his party approached it. PW8 identified himself to the respondent as a police officer. The car's engine was still running. He switched it off and took possession of the ignition key. He noticed that the respondent appeared to be in a state of panic and was sweating. On realizing that they were the police the respondent pleaded for help to release him. He also made certain statements to PW8. These statements were expunged by the trial Court as being inadmissible for want of a caution. The car was searched. The police found a newspaper - wrapped package beneath the front passenger seat. Subsequent chemical examination revealed that the package contained 892.4 grams of cannabis. The respondent was later charged for trafficking in the drugs. At the end of the prosecution case, his defence was called. He gave his evidence on oath.
The Defence
[6] According to the respondent, who was the sole witness in his defence, his car BDH 8872 had been borrowed by his brother, Lim Hock Kee, the day before. He had returned the car at about 8pm on 27 January 2000. At about 9.30pm the respondent used the car to pick up a friend, one Ah Ba, and together, they went to a karaoke lounge. Whilst there Ah Ba told the respondent that he wanted to take something from the car and asked the respondent for the keys. The respondent obliged. Ah Ba returned after a while. At about 1.30am on 28 January 2008 the respondent and Ah Ba left the karaoke lounge. They stopped for supper. On the way home, Ah Ba complained of stomach ache and wanted to use a toilet. The respondent stopped at the said Shell petrol station and Ah Ba alighted from the car and went to the toilet. While he was waiting for Ah Ba, the police pounced on him. However, the respondent admitted that he did circle in the vicinity of the station a few times because he said his car could not remain stationary long with the engine running as it would overheat.
The High Court's Decision
[7] On convicting the respondent, the learned High Court judge (Zulkefli J) (now FCJ) made the following findings:
6(i) The respondent owned the car and had used it for 1 1/2 years prior to the arrest. He was alone in the car when he was arrested. Based on these facts the respondent had actual possession of th
