[2021] 6 CLJ Chan Wei Loon v.

PP & Another Appeal 623

A CHAN WEI LOON v. PP & ANOTHER APPEAL

FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ZALEHA YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ
B [CRIMINAL APPEAL NOS: 05(M)-145-06-2018(N)
& 05(M)-146-06-2018(N)]
6 MAY 2021

CRIMINAL PROCEDURE: Appeal – Appeal against conviction and sentence –

C Accused persons charged with two counts of drug trafficking – Accused persons
convicted, found guilty and sentenced to death – Machines and drugs found in shop
house and house – House allegedly used to store drugs purportedly manufactured in
shop house – Whether elements of charge proven – Whether prima facie case
established – Whether accused persons manufacturing drugs when arrested –
D Whether defence probable – Whether conviction and sentence safe – Dangerous
Drugs Act 1952, ss. 2 & 39B(2)
CRIMINAL LAW: Penal Code – Section 34 – Common intention – Offence of
trafficking in drugs – Accused persons convicted, found guilty and sentenced to death
– Machines and drugs found in shop house and house – House allegedly used to
E store drugs purportedly manufactured in shop house – Whether conviction and
sentence safe – Dangerous Drugs Act 1952, ss. 2 & 39B(2)
The appellants were each charged at the High Court with two counts under
s. 39B(2) of the Dangerous Drugs Act 1952 (‘DDA’), read together with
s. 34 of the Penal Code, for the offence of drug trafficking, said to have taken
F
place at a double-storey shop house (‘shop house’) (‘first charge’) and a
double-storey house (‘house’) (‘second charge’) (‘charges’). The prosecution’s
narrative disclosed that, acting upon information received, a team of police
officers had positioned themselves near the shop house. The second appellant
was seen opening the door of the shop house before entering with the first
G appellant. The police then forcefully entered the premises and arrested the
appellants on the ground floor. Powdery substances, various machines
suspected of being used to manufacture drugs and thousands of pills were
found in the shop house. On the same day, the police had also raided the
house rented by the first appellant. There, 26,543g of Nimetazepam and 348
H pieces of Eramin 5 pills were found and seized. A chemist, who visited the
shop house at the request of the police, confirmed that the machines were
used to manufacture Eramin 5 pills. At the end of the prosecution’s case, the
trial judge, satisfied that the prosecution had established a prima facie case
against the appellants in respect of the charges, ordered the appellants to enter
I their defence. In their defence, the appellants submitted that (i) they were
business partners; (ii) after entering into a tenancy agreement to rent the shop
624 Current Law Journal [2021] 6 CLJ

house, the appellants only occupied the upper floor while the ground floor A
was sublet to one Ah Gu; (iii) Ah Gu and his friends, with the help of the
appellants, moved in various machines into the shop house to start his
business of producing men’s supplements; (iv) the appellants never entered
the ground floor once Ah Gu’s business went fully operational. The ground
floor was closed most of the time and the access card the appellants had could B
only open the grille door of the shop house and not the ground floor of the
same; (v) the first appellant also offered Ah Gu and the latter’s friend
(‘Ah Weng’) to stay with him at the house since there were vacant rooms;
(vi) the appellants took the master bedroom while Ah Gu and his girlfriend
and Ah Weng occupied the other rooms; (vii) on the day of the incident, the C
appellants were arrested on the upper floor of the shop house; and (viii) the
machines and powdery substances belonged to Ah Gu. At the end of the
defence's case, the trial judge found that the appellants failed to raise any
reasonable doubt on the prosecution’s case and failed to rebut the
presumption under s. 37(b) of the DDA invoked against them in both charges
D
on the balance of probabilities. The appellants were found guilty of the
charges and sentenced to death. Upon appeal, the Court of Appeal affirmed
the decision of the High Court on the first charge against the appellants and
the second charge against the first appellant but acquitted and discharged the
second appellant on the second charge. Hence, the present appeals.
E
Held (acquitting and discharging appellants on first charge; ordering
accordingly for second charge)
Per Zaleha Yusof FCJ delivering the judgment of the court:
(1) If a person is charged with manufacturing dangerous drugs, it is the duty
of the prosecution to prove that, at the time of the police raid, the F
accused person was in action, namely, engaged in the acts of
‘manufacture’ as defined by s. 2 of the DDA ie, he was in the act of
producing, making or refining drugs. The evidence of such act must be
there. The appellants were ‘clean’ at the time of their arrest; there were
no traces of drugs found on their persons, nails nor the clothes that they
G
were wearing. There was also no evidence of the processing of the drugs.
Therefore, there existed no nexus between the appellants and the act of
‘manufacturing’. (paras 77, 90 & 94)
(2) The prosecution submitted that the appellants were arrested on the
ground floor while the defence's story was that they were arrested on the H
upper floor. The police report made by the prosecution witness, police
officer SP14, was in contradiction with his answers during examination-
in-chief and cross-examination. The address in the original charge itself
was ‘Lot 185-1’ which was the address of the upper floor of the shop
house before it was amended much later to ‘Lot 185’. There was grave
I
doubt on the question of whether the appellants were arrested on the first
or ground floor of the premises and the benefit of the doubt ought to be
resolved in favour of the appellants. (paras 79, 80, 87 & 88)
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 625

A (3) The fact that the appellants carried a few of the machines into the shop
house explained how their fingerprints were found on some of the
machines. There were many of others too; there were multiple
fingerprints of unknown individuals found on several machines which
could not be traced in the police database. Therefore, that could not
B point to an irresistible inference that the appellants manufactured
dangerous drugs in the premises. Their conduct of running towards the
police upon arrest also did not point to their guilt as, if you do something
wrong, you would definitely run away from the police; not towards
them. (paras 92 & 94)
C (4) The conviction on the first charge was unsafe. The appeal of the
appellants on the first charge was allowed and the conviction was
quashed. The sentence of death was also set aside. The appellants were
acquitted and discharged on the first charge. (para 96)
(5) As the house in the second charge was purportedly used to store the
D drugs purportedly manufactured by the first appellant, if the first charge
against the first appellant failed, then the second charge must also fail.
The second charge against the second appellant must be reduced to mere
possession. Therefore, on the second charge, the conviction was
quashed, the sentence of death under sub-s. 39B(2) of the DDA against
E the second appellant was set aside and substituted with an offence
punishable under sub-s. 12(3) of the DDA. The second appellant was
sentenced to imprisonment for a period of five years. (paras 98 & 99)
Bahasa Melayu Headnotes

F Perayu-perayu masing-masing dituduh di Mahkamah Tinggi dengan dua

pertuduhan bawah s. 39B(2) Akta Dadah Berbahaya 1952 (‘ADB’), dibaca
bersama-sama s. 34 Kanun Keseksaan, atas kesalahan mengedar dadah, yang
dikatakan berlaku di sebuah rumah kedai dua tingkat (‘rumah kedai’)
(‘pertuduhan pertama’) dan sebuah rumah dua tingkat (‘rumah’) (‘pertuduhan
kedua’) (‘pertuduhan-pertuduhan’). Naratif pihak pendakwaan mendedahkan
G
bahawa, bertindak atas maklumat yang diterima, satu pasukan polis telah
mengambil kedudukan berdekatan di rumah kedai. Perayu kedua dilihat
membuka pintu rumah kedai sebelum memasukinya bersama-sama perayu
pertama. Pihak polis kemudian memasuki premis tersebut secara paksa dan
menahan perayu-perayu di tingkat bawah. Bahan serbuk, pelbagai mesin
H yang disyaki digunakan untuk membuat dadah dan ribuan pil dijumpai di
dalam rumah kedai tersebut. Pada hari yang sama, pihak polis juga menyerbu
rumah yang disewa oleh perayu pertama. Di situ, 26,543g Nimetazepam dan
348 biji pil Eramin 5 ditemukan dan dirampas. Ahli kimia, yang melawat
rumah kedai tersebut atas permintaan pihak polis, mengesahkan mesin-mesin
I di situ diguna untuk menghasilkan pil Eramin 5. Pada penutup kes pihak
pendakwaan, hakim bicara, berpuas hati pihak pendakwaan telah
626 Current Law Journal [2021] 6 CLJ

membuktikan kes prima facie terhadap perayu-perayu berkenaan pertuduhan- A

pertuduhan, memerintahkan perayu-perayu membela diri. Dalam pembelaan
mereka, perayu-perayu menghujahkan (i) mereka adalah rakan kongsi;
(ii) selepas memasuki perjanjian sewaan untuk menyewa rumah kedai,
perayu-perayu hanya menghuni tingkat atas manakala tingkat bawah
disewakan pada seorang bernama Ah Gu; (iii) Ah Gu dan rakan-rakannya, B
dengan bantuan perayu-perayu, memindah masuk pelbagai mesin ke dalam
rumah kedai untuk memulakan perniagaannya iaitu menghasilkan ubat kuat
lelaki; (iv) perayu-perayu tidak pernah menjejakkan kaki ke tingkat bawah
sebaik sahaja perniagaan Ah Gu beroperasi sepenuhnya. Tingkat bawah
biasanya ditutup dan kad akses perayu-perayu hanya boleh membuka pintu C
gril rumah kedai dan bukan tingkat bawah; (v) perayu pertama juga
mempelawa Ah Gu dan rakannya ('Ah Weng') untuk tinggal bersama-
samanya di rumah kerana terdapat bilik-bilik kosong; (vi) perayu-perayu
menghuni bilik utama manakala Ah Gu dan teman wanitanya dan Ah Weng
menghuni lain-lain bilik; (vii) pada hari kejadian, perayu-perayu ditahan di
D
tingkat atas rumah kedai; dan (viii) mesin-mesin dan bahan-bahan serbuk
dimiliki oleh Ah Gu. Pada penutup kes pembelaan, hakim bicara mendapati
perayu-perayu gagal membangkitkan apa-apa keraguan munasabah terhadap
kes pendakwaan dan gagal menyangkal anggapan bawah s. 37(b) ADB yang
dibangkitkan terhadap mereka dalam kedua-dua pertuduhan atas imbangan
kebarangkalian. Perayu-perayu didapati bersalah atas pertuduhan- E
pertuduhan dan dijatuhkan hukuman mati. Atas rayuan, Mahkamah Rayuan
mengesahkan keputusan Mahkamah Tinggi untuk pertuduhan pertama
terhadap perayu-perayu dan pertuduhan kedua terhadap perayu pertama
tetapi melepas dan membebaskan perayu kedua terhadap pertuduhan kedua.
Maka timbul rayuan-rayuan ini. F

Diputuskan (membebaskan dan melepaskan perayu-perayu daripada

pertuduhan pertama; memerintahkan sewajarnya untuk pertuduhan
kedua)
Oleh Zaleha Yusof HMP menyampaikan penghakiman mahkamah:
G
(1) Jika seseorang dituduh membuat dadah berbahaya, pihak pendakwaan
berkewajipan membuktikan, semasa serbuan polis, tertuduh sedang
melakukannya, iaitu melakukan tindakan-tindakan ‘manufacture’ seperti
yang ditafsir oleh s. 2 ADB iaitu dia sedang membuat, menghasilkan
atau menghalusi dadah. Keterangan tindakan sedemikian mestilah ada.
Perayu-perayu ‘bersih’ semasa ditahan; tiada kesan dadah pada badan H
mereka, kuku mahupun pakaian yang mereka pakai. Tiada juga
keterangan pemprosesan dadah. Oleh itu, tiada pertalian antara perayu-
perayu dan tindakan ‘manufacturing’.

I
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 627

A (2) Pihak pendakwaan menghujahkan bahawa perayu-perayu ditahan di

tingkat bawah manakala naratif pembelaan adalah mereka ditahan di
tingkat atas. Laporan polis yang dibuat oleh saksi pendakwaan, pegawai
polis SP14, bercanggah dengan jawapannya semasa pemeriksaan utama
dan pemeriksaan balas. Alamat dalam pertuduhan asal sendiri ialah ‘Lot
B 185-1’ iaitu alamat tingkat atas rumah kedai sebelum lewat dipinda
menjadi ‘Lot 185’. Terdapat keraguan serius sama ada perayu-perayu
ditahan di tingkat atas atau bawah premis dan manfaat keraguan
diselesaikan berpihak pada perayu-perayu.
(3) Fakta bahawa perayu-perayu mengangkat beberapa mesin ke dalam
C rumah kedai menjelaskan bagaimana cap jari mereka dijumpai pada
beberapa mesin. Terdapat banyak orang lain juga; wujud beberapa cap
jari individu-individu yang tidak dikenali yang dijumpai pada beberapa
mesin yang tidak boleh dikesan dalam pangkalan data polis. Oleh itu,
tidak boleh disimpulkan bahawa perayu-perayu membuat dadah
D berbahaya di premis. Tindakan mereka yang berlari ke arah pihak polis
semasa tangkapan juga tidak menunjukkan kebersalahan mereka kerana,
jika seseorang itu melakukan kesalahan, dia pasti melarikan diri dari
pihak polis; bukan ke arah pihak polis.
(4) Sabitan pertuduhan pertama tidak selamat. Rayuan perayu-perayu
E terhadap pertuduhan pertama dibenarkan dan sabitan dibatalkan.
Hukuman mati juga diketepikan. Perayu-perayu dilepaskan dan
dibebaskan daripada pertuduhan pertama.
(5) Oleh kerana rumah dalam pertuduhan kedua dikatakan diguna untuk
menyimpan dadah yang didakwa oleh perayu pertama, jika pertuduhan
F pertama terhadap perayu pertama gagal, maka pertuduhan kedua juga
semestinya gagal. Pertuduhan kedua terhadap perayu kedua mesti
dikurangkan menjadi setakat milikan. Oleh itu, untuk pertuduhan kedua,
sabitan dibatalkan, hukuman mati bawah sub-s. 39B(2) ADB terhadap
perayu kedua diketepikan dan diganti dengan kesalahan bawah
G sub-s. 12(3) ADB. Perayu kedua dijatuhkan hukuman penjara lima
tahun.
Case(s) referred to:
Lee Boon Siah & Ors v. PP [2014] 3 CLJ 584 CA (refd)
Lim Son Heng v. PP [2014] 1 LNS 414 CA (refd)
H Mohan Singh Lachman Singh v. PP [2002] 3 CLJ 293 CA (refd)
Ong Hooi Beng & Ors v. PP [2015] 1 LNS 63 CA (refd)
Ooi Hock Kheng v. PP [2014] 1 LNS 685 CA (refd)
People of the State of Michigan v. Ronald Wayne Mashell 265 Mich App 616 (refd)
PP v. Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129 FC (refd)
PP v. Chia Leong Foo [2000] 4 CLJ 649 HC (refd)
I PP v. Denish Madhavan [2009] 2 CLJ 209 FC (refd)
PP v. Lee Eng Kooi [1993] 2 CLJ 534 HC (refd)
628 Current Law Journal [2021] 6 CLJ

PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233 FC (refd) A

R v. Farir Crim. LR 745 (refd)
US v. Brooks 438F. 3d 1231 (2006) (refd)
US v. Chesher 678R 2d 1353 (1982) (refd)
US v. Lewis 621 F 2d 1382 (1980) (refd)
US v. Sullivan 919 R. 2d 1403 (refd)
B
Legislation referred to:
Criminal Procedure Code, s. 112(5)
Dangerous Drugs Act 1952, ss. 2, 12(3), 37(b), (da), 39B(1)(c), 39B(2),
First Schedule
Evidence Act 1950, s. 32(1)(i)
C
For the 1st appellant - Kee Wei Lon & Low Wei Loke; M/s Low
For the 2nd appellant - Ramkarpal Singh & Harshaan Zamani; M/s Karpal Singh
& Co
For the respondent - Mohd Dusuki Mokhtar & Nahra Dollah; DPPs
[Editor’s note: For the Court of Appeal judgment, please see Chan Wei Loon & Anor
v. PP [2018] 1 LNS 709 (overruled).] D

Reported by Najib Tamby

JUDGMENT
Zaleha Yusof FCJ: E

[1] In the High Court at Seremban, Chan Wei Loon, the appellant in
appeal No: 05(M)-145-06-2018(N), (first appellant), and Lai Kar Meng, the
appellant in appeal No: 05(M)-146-06-2018(N), (second appellant)
(collectively referred to herein as the appellants) were charged on two
charges of drug trafficking under the Dangerous Drugs Act 1952 (DDA F
1952).
[2] The High Court found the appellants guilty of both charges and had
sentenced the appellants to death.
[3] The appellants appealed to the Court of Appeal. The Court of Appeal G
unanimously dismissed the first appellant’s appeal and affirmed his
conviction and sentence on both charges. The appeal by the second appellant
was also dismissed in respect of the first charge. However, the Court of
Appeal allowed the second appellant’s appeal against conviction and
sentence on the second charge. Therefore, the second appellant was acquitted H
and discharged on the second charge.
[4] Thereby the appeal before us, by the first appellant against conviction
and sentence on both charges; and by the second appellant, against conviction
and sentence on the first charge. The Public Prosecutor (the respondent) did
not appeal against the decision of the Court of Appeal in acquitting and I
discharging the second appellant on the second charge.
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 629

A [5] To appreciate the issue, we shall now lay out the background facts
leading to the charges, as encapsulated by the Court of Appeal, with slight
modifications.
The Case For The Prosecution

B The First Charge

[6] Acting upon information received, in the early hours on 23 October
2010, SP14 (ASP Nik Ezanee bin Mohd. Faizal) with a team of police
officers, raided a two-storey shop house at No: 185, Jalan Haruan 5/6,
Kawasan Komersil Oakland, Seremban (‘the said shop house’). He divided
C his men into four teams wherein he headed the first team; Insp. Basri bin
Husin (SP33) led the second team, SI Halim headed the third team; and Sjn
Mustapha was head of the fourth team. Each of the teams was assigned with
specific roles.
[7] Upon arrival at the said shop house, the teams took their respective
D positions assigned to them. SP14 and his group positioned themselves at
about 20 meters away from the said premises, facing the front portion of the
said shop house.
[8] At about 8.50am, SP14 saw a black coloured KIA motorcar bearing
the registration number NBM 3614 (‘the said car’) stopped in front of the said
E
shop house. Both the driver and sole passenger of the said car exited the car
and walked towards the said shop house. He identified the first appellant as
the driver of the said car. The first appellant was wearing glasses and had a
sling bag slung across his shoulders. SP14 further identified the second
appellant as the passenger of the car, who was earlier seated at the front
F passenger seat, next to the first appellant.
[9] The said shop house was rented out to the first appellant by its owner,
SP12 (Harendran a/l Perisamy), for a period of one year vide a tenancy
agreement (exh. P129). There was an express prohibition (vide cl. 2.7) against
subletting, assigning, or part with the legal or actual possession of the said
G
premises or any part thereof to any person or persons except with the prior
consent in writing of the landlord SP12.
[10] SP14 saw the second appellant opening the door of the said shop house
whereupon both the appellants then entered the premises. About 15 minutes
H later, both the appellants emerged from the premises and proceeded to pray
at the praying alter, located in front of the premises. After they were done,
both went back inside the said premises.

I
630 Current Law Journal [2021] 6 CLJ

[11] The raiding team sprang into action at about 9.30am. Two members A
from SP14’s team broke open the front door of the said shop house and
another team proceeded to forcefully enter from the rear door of the said
premises. When SP14 and his team rushed into the said shop house, both the
appellants ran towards him and his team. It resulted in the arrest of both the
appellants in no time. B
[12] The premises is a double-storey shop house. Both the appellants were
purportedly arrested by SP14 and his team on the ground floor.
[13] SP14 and his team thoroughly examined the said shop house. On the
ground floor, he found various types of machines and substance suspected of
C
being used to manufacture illicit drugs and also substance suspected to be
drugs in several black coloured plastic bags.
[14] The complete list of machines, powdery substance and other related
items seized from both the appellants by SP14, were as itemised in the search
list, exh. P181, for the first appellant and search list, exh. P182, for the D
second appellant.
[15] On 25 October 2010, at about 10.50am, the chemist, Dr Vanitha
a/p Kunalan (SP6) visited the said shop house and examined the machines
and the various types of substance found therein at the request of the police.
At the end of the examination and analysis, she found that the said shop E
house had been used to process and manufacture ‘Eramin 5’ pills.
[16] The items found by SP6 were listed by the learned trial judge in
para. 20 of her grounds of judgment as follows:
[20] SP-6 mengesahkan: F
(a) Terdapatnya serbuk ‘Nimatezepam’ ditempat-tempat berikut:
(i) Mesin di ruang tengah premis eksibit P16, dan
(ii) Mesin ketuhar di ruang belakang premis (eksibit P20A)
(b) Bahan-bahan kimia yang diperlukan bagi penghasilan pil tersebut, G
iaitu:
(i) Cellulose di bahagian tengah premis (eksibit B6A dan B7A);
(ii) Starch (kanji) di bahagian belakang premis (eksibit P162);
(iii) Aspartame di bahagian tengah premis (eksibit P148E); H
(iv) Mentol di bahagian ruang tengah premis (eksibit P151A);
(v) Lactose di mesin bahagian ruang tengah Premis (eksibit P16);
(vi) Magnesium strearate di bahagian tengah ruang premis (eksibit
P152);
I
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 631

A (vii) Hydropopylmethyl cellulose di bahagian belakang premis

(eksibit P160A dan P161A); Dan
(viii) Ethanol di bahagian tengah ruang premis (eksibit P154E)
(c) Pewarna yang telah digunakan untuk penghasilan tablet berwarna
oren. Warna oren ini adalah campuran tiga jenis warna, iaitu:
B
(i) Erythrozines di bahagian tengah ruang Premis (eksibit P148G);
(ii) Tartrazine di bahagian tengah ruang premis (eksibit P147B dan
P147C) dan
(iii) Ponceau 4R di bahagian tengah ruang premis (eksibit P148H).
C
(d) Terdapat mesin-mesin yang digunakan dalam penghasilan tablet ini
untuk menghasilkan serbuk berwarna oren. Mesin-mesin tersebut
adalah seperti berikut:
(i) Mesin di ruang tengah (eksibit P16) bertanda B1 dalam rajah
kasar (eksibit P127).
D
Mengikut SP6, mesin ini digunakan untuk mencampurkan dan
mengaulkan bahan-bahan ramuan iaitu Nimatezepam, Lactose,
Magnesium, Strearate, Cellulose, Menthol, Hydropylmenthl
Cellulose, Starch, Aspartame dan 3 pewarna iaitu Tartrzine,
Ponceau 4R dan Erythrozine;
E
(ii) Mesin di ruang hadapan premis (eksibit P14) (bertanda A1
dalam rajah kasar).
Mesin ini digunakan selepas mengeluarkan “dough” daripada
mesin B1. Mesin ini berfungsi sebagai pembentuk untuk
mengeluarkan bahan dan serbuk berwarna oren daripada
F ‘dough’ tersebut.
(iii) Oven di bahagian belakang premis (eksibit P20A dan P20B).
Hasil daripada serbuk oren ini akan dimasukkan ke dalam oven
(eksibit P20A dan P20B) menggunakan tray-tray dalam oven
tersebut bagi tujuan pengeringan (dalam gambar 40 hingga 43
G (eksibit P5).
(iv) Mesin pengayak di bahagian tengah premis (eksibit B17).
Bahan yang dikeringkan tadi ini akan dimasukkan ke dalam
mesin pengayak (gambar 28 hingga 29 (eksibit P5). Tujuannya
adalah untuk mengasingkan ketulan dan serbuk berwarna oren.
H
Jadi yang keluar daripada mesin ini adalah serbuk warna oren
yang halus.
(v) Mesin di ruang hadapan premis (tandaan A2) (eksibit P.14).
Serbuk halus berwarna oren ini akan dimasukkan ke dalam
I mesin bagi membentuk pil-pil yang berwarna oren. Pil-pil
berwarna oren ini mempunyai logo yang sama dengan acuan
‘tableting’ mesin ini.
632 Current Law Journal [2021] 6 CLJ

(vi) Mesin di bahagian hadapan premis (bertanda C8 eksibit P18). A

Mesin digunakan untuk memasukkan pil-pil berwarna oren itu

ke dalam kepingan aluminium (gambar 34 (eksibit P5) (eksibit
P27a dan P27b) bagi tujuan pembungkusan.
[21] Selepas memeriksa mesin-mesin dan menganalisa bahan-bahan yang
ditemui, SP6 telah menyediakan laporan kimia, eks. P24. B

[17] Mohd. Helmi b Rasdi (SP4), an assistant mechanical engineer attached

with JKR Cawangan Mekanikal, Negeri Sembilan, was also asked by the
police to certify the serviceability/operability of the abovesaid machines.
[18] SP4 found the machines he had examined, namely: C

(i) machines marked A1 and A2 (exh. P14) as shown in photographs no.

19, 21 and 22 (exh. P5) at the front portion of the shop house;
(ii) machine marked (exh. P16) shown at photographs no. 25 and 26 of
exh. P5 and the machine marked B5 (exh. P17) shown at photograph no.
D
30 of exh. P5 at the middle portion of the said shop house; and
(iii) one machine comprising of two ovens (exh. P20A and P20B) and one
set of compressor as shown in photographs no. 30, 33, 34, 37 and 38
of exh. P5, at the rear portion of the said shop house; were all in good
condition, serviceable and could be operated upon. E
[19] SP14 also seized thousands of orange coloured pills from various
places inside the said shop house, on the ground floor in which he later
handed them over to the investigating officer, Insp Juliana binti Kassim
(SP40). The latter eventually re-marked the exhibits with the markings J1,
J2(i), J2(ii), J2(iii), J2(iv), J2(v), J2(vi), J2(vii), J2(viii), J2(ix), J2(x) and F
J2(xi). In court, the exhibits were marked as P61A, P62, P64A, P65A,
P66B, P67A, P68A, P69A, P70A, P72A and P73A respectively.
[20] In her report, SP6 stated that she analysed the said exhibits and found
them to contain 20,000.21g of Nimetazepam, the subject matter of the first
amended charge, exh. P63. SP6 also confirmed that Nimetazepam is a G
scheduled drug under the First Schedule of the ‘DDA’ 1952.
[21] At the end of the prosecution’s case, the learned trial judge found that
the prosecution had established a prima facie case against both the appellants
in respect of the first amended charge and both the appellants were ordered
H
to enter their defence.
The Second Charge
[22] On the same day ie on 23 October 2010, at about 2pm, SP33 together
with SP34 (D/Corp. Sarbani bin Abdullah) and four other officers raided a
house number 861, Jalan S2 D23, Garden City Homes, Seremban 2, Negeri I
Sembilan (‘the said house’) upon SP14’s instruction.
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 633

A [23] The said house was purportedly rented by the first appellant
commencing from 1 June 2010, from its owner through the services of a
housing agent (SP37) vide a tenancy agreement, exh. P207. SP38, who was
SP37’s assistant confirmed that he had taken the first appellant to visit the
said house prior to the signing of the tenancy agreement by the landlord and
B the first appellant. SP38 also confirmed that he had handed the keys of the
said house to the first appellant. Both SP37 and SP38 identified the first
appellant as the tenant of the said house at the material time of the police
raid.
[24] The first appellant was taken by the police to the said house in the said
C raid.
[25] The said house is a double-storey terrace house. It took about
15 minutes for SP33 and his party to reach the said house from the said shop
house that was earlier raided by SP14.

D [26] SP33 found the front door of the said house locked. He used the keys
retrieved from the first appellant front right trousers pocket to open the said
door. Once opened, SP33 entered the said house together with the first
appellant and members of his team.
[27] The front door led SP33 and his party to the main hall. At the main
E hall, SP33 saw and subsequently seized the following exhibits:
(i) one blue drum (‘tong’) (marked A, exh. P189) containing a transparent
plastic packet which further contained white powdery substance
(‘serbuk putih’) (exh. P189A);

F (ii) one blue drum (marked A1, exh. P190) containing a transparent plastic
packet which further contained white powdery substance (exh. P190A);
(iii) one blue drum (marked A2, exh. P91) containing white powdery
substance (exh. P191A);
(iv) one blue coloured box (marked A3, exh. P192) containing 20 pieces of
G
plastic containers (marked A3a, exhs. P193, P194A to P194T).
These exhibits were found at the location marked X in the sketch plan (see
exh. P195).
[28] In a room located on the same (ground) floor of the said house, SP33
H found and seized a luggage bearing the brand of ‘World Proof Polo King’
(exh. P197). Inside the said luggage were six plastic packets containing
substances suspected to be drugs.
[29] In the master bedroom located on the upper (first) floor of the said
house, SP33 seized a green pail (exh.t P85). Inside the pail was a small bottle
I written with the word ‘Bird Nest’ (exh. P85A) containing 348 pieces of
Eramin 5 pills (exh. P85B).
634 Current Law Journal [2021] 6 CLJ

[30] SP33 also found and arrested a Vietnamese woman (Nguyen Thi Thu A
Trang), then lying on a mattress in the master bedroom. Investigation
revealed that she was a GRO at one of the night spots in town and was taken
home by the first appellant for “a little bit of fun”.
[31] There were several clothes seized from the said house. In addition, an
Astro bill in the first appellant’s name (exh. P237) and the second appellant’s B
passport (exh. P241) and bank account book (exh. P242) were seized from
the said house.
[32] The exhibits and the Vietnamese woman were subsequently brought
back to IPD, Seremban and handed over to SP47 (Insp. Mohd. Airul Shukri
C
@ Remy bin Saini), the investigating officer in respect of these seizures from
the said house.
[33] SP47 subsequently re-marked the six packets of suspected drug
exhibits recovered from the luggage exh. P197 with the markings R26, R27,
R28, R29, R30 and R31 respectively. In court, the said exhibits were marked D
as exhs. P83A, P83B, P83C, P84A, P84B and P84C respectively.
Pieces of Eramin 5 pills (exh. P85B) were sent to the chemist, SP6, to
identify the nature, contents and weight of the said substances.
[34] SP6 analysed the said exhibits and found them to contain 26,543g of
E
Nimetazepam, the subject matter of the second charge. Her report on this is
exh. P82.
[35] At the time of the commencement of the trial against both the
appellants, the Vietnamese woman could no longer be found. Her
whereabouts was unknown. The learned trial judge consequently allowed the F
prosecution’s application to admit the Vietnamese woman’s statement
recorded under s. 112(5) of the Criminal Procedure Code in evidence under
s. 32(1)(i) of the Evidence Act 1950. Her Ladyship’s reasons in allowing so
were set out in her grounds of judgment at paras. 68, 69, 70 and 74. The
Court of Appeal were with the learned trial judge and could find no error to
G
invalidate the admission of the said document in evidence, which was
marked as exh. D227.
[36] The Vietnamese woman stated in exh. D227 that on the night before
the incident, she was working as a GRO at Pusat Hiburan Solid Gold,
Seremban and had entertained both the appellants until the wee hours of the H
morning. Finally, she was paid RM300 by the first appellant to sleep with
him. Then, she was taken home by the first appellant, with the second
appellant tagging along. All the three slept in the same room on the first
(upper) floor. There were no other occupants in the said house. She was
arrested by the police the next day, still sleeping, in the same room she had
I
slept with the first appellant.
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 635

A [37] At the end of the prosecution’s case, the learned trial judge also found
that the prosecution had established a prima facie case against both the
appellants in respect of the second charge and both the appellants were
ordered to enter their defence.
The Case For The Defence
B
[38] Both the appellants gave an unsworn written statement from the dock
and their defence appeared strikingly identical.
[39] Both the appellants stated that they were engaged in providing alarm
and CCTV service business at the said shop house.
C
[40] The first appellant further stated that he had entered into a tenancy
agreement to rent the said double-storey shop house. However, he had sublet
the ground floor of the shop house to his old acquaintance, one Ah Gu.
Hence, he had only occupied the upper (first) floor to run his business with
the second appellant.
D
[41] The said Ah Gu had earlier examined the ground floor of the shop
house where he had come with Ah Kam and Ah Weng before agreeing to rent
the ground floor from the first appellant.
[42] Thereupon, the said Ah Gu and his friends started to move in various
E types of machines and other related stuff and accessories to start his business.
When queried, Ah Gu told both the appellants that he had wanted to produce
‘Ubat Kuat Untuk Lelaki’.
[43] Both the appellants stated that they had assisted Ah Gu to carry the
machines and other related stuff and had placed them inside the ground floor
F of the said shop house and had also been chatting and smoking cigarettes with
Ah Gu and his friends there.
[44] The first appellant also offered Ah Gu and Ah Weng to stay with him
at the said house (House No. 861, City Homes) since there were vacant
rooms in the said house. The Vietnamese woman was Ah Gu’s girlfriend.
G
[45] Ah Gu and his girlfriend occupied one of the rooms on the upper floor
while Ah Weng occupied the room next to Ah Gu’s room. Meanwhile, the
first and second appellants took the master bedroom for themselves.
[46] Both the appellants averred that they had never entered the ground
H floor portion of the shop house once Ah Gu’s business went fully
operational. The said portion was closed most of the time and the access card
they both had could only open the grille door of the shop house and not the
ground floor of the same.

I
636 Current Law Journal [2021] 6 CLJ

[47] Both the appellants claimed that on the day of the incident, both of A
them were chatting and doing their own thing on the first (upper) floor of the
shop house when the police broke open the door of the first floor and arrested
both of them. They insisted that they were arrested on the first floor of the
shop house before they were taken down to the ground floor.
[48] Both the appellants also insisted that the police had to forcefully break B
open the door of the ground floor as no keys to open the said door were
available from either of the appellants.
[49] When the door was finally forced open, both the appellants claimed
that they saw boxes, drums and powdery substance of unknown origin all
C
over the ground floor. The first appellant claimed that he had told the police
that the boxes, drums, machines and powdery substance therein belonged to
Ah Gu. However, the police refused to listen.
[50] Both the appellants also denied having knowledge of the drugs seized
by SP33 and his team at the said house involving the second charge. D
[51] At the end of the defence’s case, the learned trial judge found that both
the appellants had failed to raise any reasonable doubt in the prosecution’s
case and had also failed to rebut the presumption under s. 37(b) of the DDA
invoked against them in both the charges on the balance of probabilities. Both
the appellants were eventually found guilty by the High Court of both the E
charges and were sentenced to death on both counts.
[52] Aggrieved, the appellants appealed to the Court of Appeal; which as
alluded to earlier affirmed the decision of the High Court on the first charge
against both the appellants and the first charge against the appellant but
acquitted and discharged the second appellant on the second charge. F

The Charges
[53] The original first charge against the appellants stated the address of the
offence as ‘Rumah Kedai Lot 185-1’. However, the address in the original
charge was amended on 18 March 2013, after the prosecution had called 16 G
witnesses. Thus, the two charges against the appellants now read as follows:
Tuduhan Pertama (Pindaan):
Bahawa kamu pada 23hb Oktober 2010, di premis rumah kedai Lot 185,
Jalan Haruan 5, 5/6, Pusat Komersial Oakland II, di dalam daerah
Seremban, di dalam Negeri Sembilan, dengan niat bersama telah H
melakukan perbuatan bagi tujuan mengedar dadah berbahaya iaitu
Nimetazepam seberat 20,000.21 gram dan dengan itu melakukan suatu
kesalahan di bawah seksyen 39B(1)(c) Akta Dadah Berbahaya 1952 (Akta
234) yang boleh dihukum di bawah s.39B(2) Akta yang sama dan dibaca
bersama seksyen 34 Kanun Keseksaan.
I
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 637

A Pertuduhan Kedua:
Bahawa kamu pada 23hb Oktober 2010, lebih kurang jam 2.15 petang, di
rumah No. 861, Jalan S2 D23, City Homes di dalam Daerah Seremban,
di dalam Negeri Sembilan dengan niat bersama telah mengedar dadah
berbahaya iaitu Nimetazepam seberat 26,543 gram dan dengan itu telah
B melakukan suatu kesalahan di bawah seksyen 39B(1)(b) Akta Dadah
Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang
sama di baca bersama dengan seksyen 34 Kanun Keseksaan.
Our Analysis And Decision
[54] On the first charge, the appellants raised three issues before us, namely
C possession, double presumptions and access by the third party. However, the
main focus was the issue of possession; namely, whether possession is an
essential ingredient in a case involving manufacturing of dangerous drugs and
thus it needs to be proven before the trafficking definition in s. 2 of the DDA
1952 can be invoked.
D
[55] On this, the learned trial judge found that the shop house was used as
a drug manufacturing factory based upon the seizure of various types of
machines, apparatus and chemical substance that can be used to process drugs
that were found at the ground floor of the said shop house where both the
appellants were arrested. The learned trial judge took the view that it was
E unnecessary for the prosecution to prove possession in manufacturing cases
and the findings on manufacturing is sufficient to prove the offence of
trafficking by manufacturing. This can be seen in the following paragraphs
in the grounds of judgment of Her Ladyship:
[27] Mahkamah memutuskan berdasarkan keadaan premis yang diserbu
F yang menjadi kilang/makmal memproses dadah, adalah jelas bahawa
OKT-OKT telah melakukan atau menjalankan pengedaran dadah secara
terus “direct or actual trafficking.”
41. Mahkamah memutuskan memandangkan pihak pendakwaan telah
membukti bahawa kedua-dua OKT tersebut memproses/mengilang dadah
G maka elemen pemilikan adalah tidak perlu dibuktikan. Mahkamah
bersandarkan kepada keputusan Lee Boon Siah v. PP …
[42] Keputusan kes Lee Boon Siah adalah kedudukan undang-undang hari
ini iaitu bagi pertuduhan ‘manufacturing’ pihak pendakwaan tidak perlu
membuktikan ‘possesion’ – milikan. Ini adalah kerana Seksyen 2
H memperuntukkan secara khusus definisi perkataan ‘manufacture’ iaitu
termasuk ‘making, producing, compiling and assembling of the drug’ tidak
seperti perbuatan lain yang didefinisikan sebagai ‘trafficking’.
[49] Atas isu ini Mahkamah bersetuju dengan hujahan pendakwaan
bahawa memandangkan pihak pendakwaan telah berjaya membuktikan
premis tersebut adalah mempunyai peralatan memproses/mengilang
I
dadah, maka kedua-dua OKT telah melakukan pengedaran secara terus
638 Current Law Journal [2021] 6 CLJ

– direct trafficking seperti yang telah diputuskan oleh kes Lee Boon Siah A
v. PP (supra) di mana pihak pendakwaan tidak perlu membuktikan elemen
milikan.
[56] In affirming the decisions of the learned trial judge, the Court of
Appeal found as follows:
B
[63] In all the circumstances of the case though, the statement stated at
para 32 of Lee Boon Siah v. PP (supra) represents the correct proposition of
the law relating to cases involving drug manufacturing. Hence, the learned
trial judge did not commit any error of law when she ruled that the ruling
in Lee Boon Siah v. PP (supra) applied unequivocally to the facts of the
present case. C
[64] It is very important to note that in this instant appeal, the case for
the prosecution was not based on custody of control thereby invoking the
notion of mens rea possession of the said drugs or attracting the
presumption of possession and knowledge under s. 37(d) of the DDA or
invoking the presumption of trafficking under s. 37(da) of the same Act.
Rather, the persecution founded its case of trafficking of the said drugs D
on ‘manufacturing’, one of the acts that constitute trafficking within the
definition of s. 2 of the DDA.
[67] In our judgement, for the reasons enumerated below, the act of
manufacturing dangerous drug is one of those acts of trafficking where
the element of possession of the drugs would assume little relevance or E
no relevance at all.
[71] By its plain and ordinary meaning of ‘manufacture’ or ‘manufacturing’
given by renowned dictionaries and by the DDA itself as enumerated
above, it appears to us that in essence, it is all about the doing of an act,
action, state or occurrence, more specifically the doing or the making of F
something whether manually or by machines. Hence, in the context of s.
2 of the DDA, what needs to be proven is the making, producing,
compounding and assembling of the drug or a preparation of the drug or
refining or transformation of the drug into another dangerous drug or any
other process done in the course of the foregoing activities. In such event,
happening or occurrence, there is no requirement to prove possession of G
the impugned drugs as the process of making or producing, etc. in itself
had excluded the element of possession of the same.
[57] In essence, the Court of Appeal was of the view that possession was
not an essential ingredient in a case involving manufacturing of drugs and
thus need not be proven before the trafficking definition under s. 2 of the H
DDA 1952 can be invoked. The learned trial judge did not err in finding that
the prosecution had proven that the appellants were engaged in the
manufacturing of the impugned drugs and that ‘manufacturing’ was itself an
act of trafficking under s. 2 of the DDA 1952 which did not require
possession to be proven. The quantity of drugs manufactured was immaterial I
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 639

A as the act of trafficking was not dependent on the quantity of drugs that was
manufactured. Hence, even if only one gram of dangerous drug was
manufactured, it was still trafficking and could attract s. 39B of the DDA
1952 into motion.
[58] This view was further reflected in paras. 72 to 74 of the Court of
B Appeal’s ground of judgment. For those reasons, the Court of Appeal was of
the view that possession is not an essential ingredient in a case involving
manufacturing of drugs and thus it need not be proven before the trafficking
definition in s. 2 of the DDA can be invoked.
[59] Mr. Ram Karpal Singh for the second appellant whose oral submission
C
was adopted by Mr. Kee Wei Lon for the first appellant, argued that the High
Court and Court of Appeal had erred when they held that it was unnecessary
for the prosecution to prove possession in cases of manufacturing. The courts
below had relied on Lee Boon Siah & Ors v. PP [2014] 3 CLJ 584. However,
learned counsel submitted, it is pertinent to note that the Court of Appeal in
D Lee Boon Siah, supra, did not consider the question of whether a
‘manufacturing’ case under s. 2, DDA 1952, requires proof of possession
first save for its reliance on the cases of PP v. Chia Leong Foo [2000] 4 CLJ
649; [2000] 6 MLJ 705 and PP v. Mansor Md Rashid & Anor [1997] 1 CLJ
233; [1996] 3 MLJ 560; when those cases were not “manufacturing” but
E were instead ‘sale’ cases under s. 2 of DDA 1952.
[60] Both learned counsel for the appellants submitted that there must be
an overt act of “manufacturing” and mere presence in the premises in which
the machines were found cannot, in itself, amount to trafficking. The case of
Ooi Hock Kheng v. PP [2014] 1 LNS 685; [2014] 5 MLJ 585 was cited
F although it was not a “manufacturing” case but it was submitted that the
principle in Ooi Hock Kheng, supra, applies equally to “manufacturing” cases;
namely, that there must be some overt act of trafficking before a definition
under s. 2, DDA 1952 is applied and further, if the drug in question is not
listed under s. 37(da), DDA 1952; such as Nimetazepam in this case, there
G ought to be direct evidence of trafficking or affirmative evidence of
trafficking since the presumption of trafficking does not apply.
[61] Mr Ram argued that if mere presence without proof of possession is
sufficient to prove the offence of manufacturing, than a security guard who
was engaged to guard the premises, and has touched the machine would be
H found guilty just because of his presence and his fingerprint is found on the
machine. This, he said, cannot be the case. He cited cases from the United
States (cases of People of the State of Michigan v. Ronald Wayne Mashell 265
Mich App 616; US v. Sullivan 919 R. 2d 1403; US v. Lewis 621 F. 2d 1382
(1980); US v. Chesher 678R. 2d 1353 (1982) and US v. Brooks 438F. 3d 1231
I (2006) and a case from the United Kingdom (R v. Farir) Crim. LR 745 to
show that in other jurisdictions, possession and overt acts need to be proven
in manufacturing of drugs cases.
640 Current Law Journal [2021] 6 CLJ

[62] On the other hand, the prosecution took the stand that possession is A
not an essential ingredient in a trafficking case involving manufacturing of
drug cases and thus it need not be proven before the trafficking definition in
s. 2 of the DDA 1952 can be invoked. The line of submission of the learned
DPP, Dato Mohd. Dasuki was similar to the approach taken by the learned
judges of the High Court and Court of Appeal in this case. B
[63] As alluded to earlier, the appellants were charged for trafficking in
dangerous drugs under s. 39B of the DDA 1952. The said s. 39B provides
as follows:
39B Trafficking in dangerous drug.
C
(1) No person shall, on his own behalf or on behalf of any other person,
whether or not such other person is in Malaysia:
(a) Traffic in a dangerous drugs;
(b) Offer to traffic in a dangerous drugs; or
D
(c) Do or offer to do an act preparatory to or for the purpose of
trafficking in dangerous drug.
(2) Any person who contravenes any of the provisions of subsection (1)
shall be guilty of an offence against this Act and shall be punished
on conviction with death.
E
[64] So, what is trafficking? Trafficking is defined by s. 2 of the DDA 1952
as follows:
“trafficking” includes the doing of any of the following acts, that is to say,
manufacturing, importing, exporting, keeping, concealing, buying, selling,
giving, receiving, storing, administering, transporting, carrying, sending, F
delivering, procuring, supplying or distributing any dangerous drug;
[65] As can be seen, manufacturing is one of the acts of trafficking. What
constitutes as “manufacture” can also be found in the definition section of
s. 2 of DDA 1952 which says:
G
“manufacture”, in relation to a dangerous drugs, includes:
(a) The making, producing, compounding and assembling of the drug;
(b) The making, producing, compounding and assembling a preparation
of the drug;
(c) The refining or transformation of the drug into another dangerous H
drug; and
(d) Any process done in the course of the foregoing activities

I
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 641

A [66] Although the DDA 1952 does not specifically state the ingredients to
be proven when one is charged for trafficking, decisions of our apex court
have shown that one of the main elements that needs to be established is
the accused is in possession of the dangerous drugs. One of such cases is
PP v. Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129; [2006] 3 MLJ 193,
B wherein Ariffin Zakaria FCJ (as His Lordship then was) had at p. 140 (CLJ);
p. 201 (MLJ) stated the following:
… In order to sustain a conviction for an offence under section 39B of
the Act, there has to exist a positive finding of possession by the trial
judge independent of the statutory presumption under section 37(d) of
C the Act and such a finding has to be unequivocal ...
[67] His Lordship had further stated that the mere act of carrying is not
sufficient to constitute the offence of trafficking.
[68] The parties, as well as the learned trial judge had placed reliance on
the case of Lee Boon Siah, supra. In that case, the accused persons were
D
convicted for trafficking based on ‘manufacturing’. However, we noted, in
that case there was evidence adduced showing that the accused persons were
caught in the act of manufacturing at the time of the police raid. The relevant
passages are reproduced:
[9] In the said factory, PW5 conducted a search at the lower floor of the
E
said factory and found a brown metallic coloured Honda Odyssey car
registration plate no. SDL 5443L. Next, PW5 and his team proceeded to
the back door of the factory. When the back door was opened, PW5
found all the five accused persons. They were in a state of fright and their
clothings were in disarray as if they had just completed carrying out some
F work. All the five accused persons were then handcuffed. After that, they
were taken to the front area of the factory.
And the Court of Appeal explained the nexus in this manner:
[30] Even more to the point, as correctly found by the learned trial judge,
there was a nexus between the five accused persons and the dangerous
G drugs exhibits seized. The five accused were arrested in the factory
premise. The five accused persons were actually arrested in the premise
of the factory because there was a wall encircling the perimeter of the said
factory. Tellingly, the clothes of the accused also had methamphetamine
stains: t-shirt of the 1st accused; blue jeans pants brand name “Exhaust”
of the 2nd accused: and shirt brand “Camel” of the 3rd accused. PW4 also
H confirmed that, apart from 2nd and 4th accused, “hand swab” of the right
and left hand collected by PW9 from all the five accused persons at the
factory contained methamphetamine. PW12 confirmed that the DNA
profile of all the accused persons were found on the following items:
underwear and toothbrush (1st accused); underwear (2nd accused); glove
(3rd accused); cotton swipe (4th accused); and glove (3rd, 4th and 5th
I accused persons).
642 Current Law Journal [2021] 6 CLJ

[69] The Court of Appeal in Lee Boon Siah, supra, had held that the A
manufacturing of the dangerous drugs in that case did not involve possession.
However, it was clear from the facts of that case, not only that the appellants
there were found and caught on the same floor where the machines were, the
clothes they were wearing and their hands had stains of the same drugs found.
There was therefore no doubt they were in control and custody of the said B
machines and hence, having possession of the drugs.
[70] As such, even though the Court of Appeal in Lee Boon Siah, supra held
that the manufacturing of the drug in that case did not involve possession,
the facts showed that the element of possession did exist in that case.
C
[71] The learned DPP had referred to another Court of Appeal decision in
Lim Son Heng v. PP [2014] 1 LNS 414; [2014] 6 MLJ 109 to support his
argument that possession need not be proven in manufacturing of dangerous
drugs case as in that case the premises was opened with the key found on the
body of the accused person and in the premises, dangerous drugs were found
together with various utensils and tools which were suspected to be used for D
manufacturing dangerous drugs. So, even though there was no eyewitness
who saw the accused in the act of making or producing the impugned drugs,
the court still found him guilty of manufacturing.
[72] With due respect to the learned DPP, the accused in Lim Son Heng,
E
supra was arrested as he was leaving the premises after locking the grille and
the main door. When he was arrested, and when he opened the grille and the
door of the premises, there was no one else in the premises and the drugs
together with several illicit drug-making utensils were discovered in the
unlocked main room of the premises. Therefore, the Court of Appeal found
he had control, custody, knowledge and hence possession of the drugs. The F
Court of Appeal held inter alia;
(2) There was no doubt the appellant had possession of all things inside
the premises to the exclusion of others. The keys to the premises
were recovered from him; the evidence of four witnesses identified
him as the tenant of the premises … All the doors to the rooms in G
the premises were also unlocked showing that the appellant enjoyed
complete custody and control of the place and of the items found
therein. The evidence when taken together led to the conclusion
that at all times the offending drugs were in the appellant’s custody
and control and the irresistible inference was that he had knowledge
of the drugs. The prosecution had made out a case of actual H
possession … .
[73] In our view, Lim Son Heng, supra, is another case to illustrate that
possession is still an essential ingredient in a case involving manufacturing
of dangerous drugs and thus it needs to be proven before the trafficking
I
definition in s. 2 of the DDA 1952 can be invoked. The general rule in our
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 643

A view is, for a person to be trafficking in dangerous drugs, he must have the
drugs in his possession. Even though the DDA 1952 does not explicitly
define “possession”, earlier decisions of our courts have established that
possession must be with mens rea, that the person must be aware of his
possession, that he has the exclusive power to deal with the drugs.
B [74] On “possession”, this court in PP v. Denish Madhavan [2009] 2 CLJ
209 at pp. 217 to 218 had stated the following:
[17] The idea of exclusively features in the meaning of “possession” in
criminal law as one of the elements necessary to constitute possession.
As Taylor J said in Liow Ngee Lim v. Reg. [1955] 1 LNS 53:
C
… it is often said that “possession must be exclusive”. This is
ambiguous. Possession need not be exclusive to the accused. Two
or more persons may be in joint possession of chattels, whether
innocent or contraband. The exclusive element of possession
means that the possessor or possessors have the power to exclude
D other persons from enjoyment of the property.
Custody likewise may be sole or joint and it has the same element
of excluding others. The main distinction between custody and
possession is that a custodian has not the power of disposal. The
statement that “possession must be exclusive” is often due to
E
confusion of the fact to be proved with the evidence by which it
is to be proved. It is essential to keep this distinction clearly in
mind, especially when applying presumptions.
[18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17, said
that “possession” for the purposes of criminal law involves possession
itself – which some authorities term “custody” or “control” - and
F knowledge of the nature of the thing possessed. As to possession itself
he cited the following definition in Stephen’s Digest (9th edn, p.304), in
which the exclusive element mentioned by Taylor J appears:
A moveable thing is said to be in the possession of a person when
he is so situated with respect to it that he has the power to deal
G with it as owner to the exclusion of all other persons, and when
the circumstances are such that he may be presumed to intend to
do so in case of need.
[19] Once the elements needed to constitute possession are established,
including the element of exclusive power to deal, then what is established
H is possession, not exclusive possession. So much for exclusive possession.
[75] Thus it is clear to our mind that trafficking cases require proof of
possession with the exception of a few such as in cases of sale and supply of
dangerous drugs as decided by this court in PP v. Chia Leong Foo [2000]
4 CLJ 649; [2006] 6 MLJ 705 at pp. 660-661 (CLJ); p. 717 (MLJ) as
I follows:
644 Current Law Journal [2021] 6 CLJ

It must be observed that most of the acts that constitute ‘trafficking” as defined A
in s.2 of the Act like, for example, keeping, concealing, storing, transporting and
carrying dangerous drugs involve the prerequisite element of possession unlike, for
instance, the sale and supply of dangerous drugs which need not necessarily involve
possession as demonstrated by Pendakwa Raya v. Mansor bin Mohd. Rashid &
Anor [1996] 3 MLJ 560. It follows that a person cannot keep, conceal, store,
transport or carry dangerous drugs within the meaning of ‘trafficking’ in B
the Act without being in possession of them. Proof of further facts to
establish any one of these acts is therefore sufficient to make out a case
of trafficking. Thus it is true, as the (then) Supreme Court observed in Teh
Geok Hock v. PP [1989] 3 MLJ 162 (at p. 163), that ‘... the definition in the
Act sounds artificial and not according to the ordinary meaning of the
word “trafficking” which is normally understood to mean to trade in, buy C
or sell, any commodity, albeit often with sinister implication’. The offence
is therefore complete upon proof of the relevant act that constitutes
‘trafficking’ as defined in s. 2 of the Act and the purpose of such act is
not material. The weight of the dangerous drugs involved is not a
determinative factor (see Leong Siew Hoong v. PP [1988] 1 MLJ 396).
D
Personal consumption may be set up to explain the possession of the
drugs (see Cohen Lorraine Philis & Anor v. PP [1989] 3 MLJ 289; Ng Chai
Kem v. PP [1994] 2 MLJ 210; Chow Kok Keong v. PP [1998] 2 MLJ 337).
(emphasis added)
[76] In another case of Ong Hooi Beng & Ors v. PP [2015] 1 LNS 63, the
E
appellants were charged under s. 39B(1)(c) of the DDA 1952 with an offence
of doing an act preparatory to trafficking in dangerous drugs, almost similar
to the appeal before us. They were arrested during a raid on a factory under
the style and name of Zmas Synergy Sdn Bhd which was suspected to be used
as a clandestine drug processing laboratory. Their charge was for
manufacturing of the drugs which is an act of trafficking by definition of F
s. 2 of the DDA 1952. All the appellants denied any involvement in drug
processing. However, at the time of their arrest all of them were inside the
factory where the drugs and drug manufacturing apparatus were found. Not
only that, traces of methamphetamine were found on the appellants’
fingernails, hair and clothing. And they were not able to explain how those G
traces came to be found there. The Court of Appeal agreed with the trial
judge that the traces of methamphetamine found on the appellants’
fingernails, hair and clothing indicated that they had knowledge of the drugs
and this evidence was compelling evidence which showed their active
involvement in processing the drug at the factory. In other words, they had H
mens rea possession.
[77] Looking at the DDA 1952 further, the word “manufacturing” or the
definition of “manufacturer” under s. 2 of the DDA 1952 is used as a verb.
Verbs have traditionally been defined as words that show action or state of
being. What it means, if a person is charged with manufacturing the I
dangerous drugs, it is the duty of the prosecution to provide that at the time
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 645

A of the police raid, the accused person is in action, namely, is engaged in the
acts of “manufacture” as defined by s. 2 of the DDA 1952; for example, he
was in the act of producing or making or refining the drugs. The evidence
of such act must be there. This was what happened in Ong Hooi Beng, supra,
and even Lee Boon Siah, supra.
B [78] Generally, we are of the view that possession is an essential ingredient
to be proven for manufacturing cases. But of course there will always be
exceptions depending on the facts and circumstances of a particular case. For
example, when an accused person is caught giving instruction to others to
process the drugs when he himself is not having the drugs on his body or not
C touching the machine. His presence there is not mere presence but for the
purpose of manufacturing the drugs. The nexus is there, or, as in the case of
Lim Son Heng, supra, even though the accused was not caught in action, based
on the facts and circumstances of the case, he was still found to be in
possession of all things inside the premises.
D [79] Coming back to the instant appeal. Had trafficking been proven here?
The premises of the first charge was a double-storey shop house. The drugs
and the apparatus were found on the ground floor of the premises. That was
not in dispute. What was in dispute was where the appellants were when the
police raided the premises. The prosecution said they were arrested at the
E ground floor. The defence’s story was they were at the first or upper floor.
[80] However, having perused the notes of proceedings, we found that the
evidence of the prosecution witnesses on this was not convincing. SP14 in
his police report marked as D184 had in para. 3 stated that they went to the
premises no Lot 185-1, Jalan Haruan 5/6, Pusat Komersial Oakland II,
F Seremban.
Saya telah memecah (1) pintu grill (Berscan) dan (2) pintu kayu sebelum
masuk ke ruang hadapan premises tingkat (1). Saya dapati ada (2) lelaki
Cina berlari menuju kearah saya.

G [81] He further stated in para. 6 of the report that after arresting and
searching the bodies of the two appellants:
saya seterusnya menjalankan pemeriksaan di bahagian bawah rumah
kedai tersebut bermula dari bahagian hadapan, tengah dan belakang.
[82] However, during the trial, SP14 said the appellants were arrested at
H the ground floor of the premises. During examination-in-chief, SP14 said he
had instructed SP33 to inspect the first floor and that the appellants were
arrested at the ground floor. He further contradicted himself when during
cross-examination he denied saying he had instructed SP33 to inspect the first
floor.
I
646 Current Law Journal [2021] 6 CLJ

[83] SP33 however in his evidence said SP14 did instruct him to inspect A
the first floor and he did together with other team members including SP34.
[84] But SP34 in his evidence said he never went to the first floor of the
premises, instead he was asked to guard the back of the premises. He even
agreed with the defence’s suggestion that SP33 had lied when SP33 told the
court that SP34 went upstairs together with SP33. B

[85] We were of the view that where the appellants were actually arrested
in this case was extremely important to appreciate, as unlike the factual
matrix in Lee Boon Siah, supra, it is doubtful whether they actually had
control and custody of the items found on the ground floor if they were
C
caught or arrested on the first floor.
[86] The evidence in D184 and the oral evidence of the three said witnesses
clearly contradicted each other and this contradiction was not mere
contradiction but material contradiction as the lives of the appellants hinge
upon the evidence. Our curiosity was further raised as D184 was never D
produced by the prosecution but the defence. What was it that the
prosecution was trying to hide? When SP14 made his police report, D184,
he was definitely aware of the existence of the first floor (tingkat 1) and the
ground floor (tingkat bawah). This was in stark contrast with his evidence in
court.
E
[87] The original charge itself read “Lot 185-1” which as confirmed by
SP12, the landlord, as the address of the first floor of the said premises. This
address was amended to “Lot 185” only after the prosecution had called 16
witnesses.
[88] In the light of the contradictions inherent in the prosecution evidence, F
we could not but agreed with learned counsel for the appellants that there was
grave doubt on the question of whether the appellants were arrested on the
first or ground floor of the said premises and the benefit of the doubt ought
to be resolved in favour of the appellants. Or course we were aware that there
will always be discrepancies and contradictions in a case. However, in light G
of D184 and the sudden amendment to the charge, the evidence of the
prosecution witnesses must be treated with caution and looked upon with
suspicion. We adopt with approval what Vincent Ng JC (as he then was) had
said in PP v. Lee Eng Kooi [1993] 2 CLJ 534; [1993] 2 MLJ 322:
In such a case where the prosecution leads two sets of evidence, each one H
of which contradicts and strikes at the other and shows it to be unreliable,
the court will be left with no reliable and trustworthy evidence upon which
a conviction of the accused might be based.

I
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 647

A [89] With due respect to the learned trial judge, we found Her Ladyship’s
mind was clouded with her view that it was unnecessary for the prosecution
to prove possession in case of manufacturing. Hence, she had clearly failed
to give proper evaluation, in fact no evaluation at all, to the material
contradiction of the evidence of the material witnesses especially SP14, SP33
B and SP34 on whether the appellants were arrested on the ground or first floor
of the premises which in our view was relevant to the question whether the
appellants had control and custody of the dangerous drugs and the apparatus
found on the ground floor. Those can clearly be seen in para. 50 of
Her Ladyship’s grounds of judgment as follows:
C [50] Dengan demikian Mahkamah memutuskan hujahan pembelaan
mengenai percanggahan keterangan di antara saksi-saksi pendakwaan
berkenaan fakta bahawa kedua-dua OKT ditangkap di tingkat bawah
adalah tidak perlu dipertimbangkan.
[90] Our view is clear. The case of Lee Boon Siah, supra, and the case of Ong
D Hooi Beng, supra can readily be distinguished from the instant case. In those
two cases, the present of the drugs on the appellants’ persons was a key
element which provided the nexus between the appellants and the
preparatory act of processing the drug. In consequence, they were arrested
while they were engaging in the act of manufacturing. While in the instant
E
appeal, there were no traces of drugs found on the persons of the appellant
at the material time when they were caught. There were also no traces of
drugs on their nails or clothes they were wearing then. There was also no
evidence of the processing of the drugs found then, not even by the chemist.
Therefore, we could not find any nexus between the appellants and the act
of manufacturing.
F
[91] It was the version of the first appellant that he had rented the premises
in the first charge to start a business dealing with CCTV and alarm system.
The second appellant was his business partner. However, due to the rough
start-up of the business, the first appellant had decided to sub-rent the ground
G
floor to his friend by the name of Ah Gu, Ah Kam and Ah Weng. Not long
after that Ah Gu had sought the help of the appellants and some other friends
to move some machines into the shop; to be used to manufacture “ubat kuat
lelaki”.
[92] There was evidence of SP4 which confirmed that the machines could
H not be carried into the building by merely two persons without the help of
any forklift. There were multiple fingerprints of unknown individual found
on several machines which could not be traced in the police database. There
were also the fingerprints of one Daniel Yeng Lin Saifullah on lifting card,
J5, on the machines marked as A2 and A3. Besides, two cigarette butts
I
recovered from the ground floor contained DNA of “Male 1”.
648 Current Law Journal [2021] 6 CLJ

[93] The evidence laid down above pinpoints the access possibility by the A
third party to the ground floor. It is trite that the burden is on the prosecution
to exclude access of the said ground floor by others to prove that the
appellants were exclusively in custody and control of the dangerous drugs
and the machines found on the ground floor. The prosecution had failed to
establish such evidence when the onus is not on the defence to prove B
possibility of access by others, but on the prosecution to exclude such
possibility. The burden of proving its case at every stage lies on the
prosecution. The only task of the accused is to raise a reasonable doubt as
to the truth of the prosecution’s case. See: Mohan Singh Lachman Singh v. PP
[2002] 3 CLJ 293; [2002] 3 MLJ 291. C
[94] We therefore agreed with learned counsel for the appellants that the
fact that the appellants were seen carrying a few of the said machines into
the premises explained how their fingerprints were found on some of the
machines. But there were many of others too. Therefore that could not point
to an irresistible inference that the appellants manufactured dangerous drugs D
in the premises. Their conduct of running towards the police upon arrest also
in our view did not point to their guilt as if you do something wrong, you
would definitely run away from the police not running towards them. To top
it all off, there was a doubt as to where actually the appellants were arrested.
Not only that, the appellants were “clean” at the time of the arrest. No drugs E
or traces of drugs were found on their person.
[95] We could not find any nexus to connect the appellant with the act of
manufacturing. To reiterate, in our view, whether or not possession is
necessary ingredients to be proven in a case involving manufacturing of
dangerous drugs, would depend on the facts and circumstances of a particular F
case. In this instant appeal based on the facts and circumstances on when and
how the appellants were arrested, we were of unanimous view that
possession needs to be proven. Unfortunately, the prosecution in our view
had failed to do so. The courts below in our view had misdirected themselves
by way of non-directions in not considering the ingredient of possession.
G
[96] On the totality of the evidence before us, we found that the conviction
on the first charge on this ground alone was unsafe. We need not consider
the other issues. We therefore allowed the appeal of both the appellants on
the first charge and quashed the conviction as ordered by the High Court and
affirmed by the Court of Appeal, and set aside the sentence of death. H
Consequently, we ordered both the appellants to be acquitted and discharged
on the first charge.
[97] On the second charge, for the purpose of appeal before us, the second
charge was only against the first appellant. It was the learned trial judge’s
finding that the premises of the second charge was used to store the drugs I
manufactured in the first charge:
 [2021] 6 CLJ Chan Wei Loon v. PP & Another Appeal 649

A (86) … bahawa premis 861 digunakan untuk menyimpan (storing) dadah

yang dirampas ataupun yang diproses di premis no. 185.
…
(124) … dengan jenis dadah yang sama yang diproses di premis rumah
kedai dan yang dijumpai di rumah 861 adalah keterangan yang sangat
B relevant dan kukuh bahawa dadah-dadah yang diproses oleh OKT1 dan
OKT2 disimpan di premis 861.
[98] Learned counsel for the first appellant submitted that as premises in
for the second charge was purportedly used to store the drugs purportedly
manufactured by the first appellant, if the first charge against the first
C appellant fails, the second charge must also fail and the second charge against
the first appellant must be reduced to mere possession.
[99] We found merit in this argument. Especially so when there were other
occupants in the house at the time of the raid. Hence, on the second charge,
we quashed the conviction, set aside the sentence of death under
D
sub-s. 39B(2) against the first appellant and substituted for an offence
punishable under sub-s. 12(3) of the DDA 1952. After taking into
consideration the mitigation put forward by the first appellant, we sentenced
the first appellant to imprisonment for a period of five years with effect from
the date of arrest.
E