1

Digest :

 

251 Dangerous Drugs Ordinance (Malaysia) -- s 12(2)

4 [251] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 12(2) – Possession of heroin – Sentencing principles – Discretion of court under Criminal Procedure Code to order bond not applicable to s 12(2) – Offence of possession of dangerous drugs – Factors to be taken into consideration in assessing sentence – Public interest – Whether provision for binding over under s 294 Criminal Procedure Code applicable – Criminal Procedure Code (FMS Cap 6), ss 173A and 294.

Summary :

In this case, the respondent had pleaded guilty to a charge of possession of dangerous drugs. In mitigation, he stated that this was his first offence and that he was threatened that if he did not sell the drugs he would be assaulted. He was bound over under s 294 of the Criminal Procedure Code. The case came before the High Court in revision.

Holding :

Held: (1) the discretion to order a bond under s 294 of the Criminal Procedure Code cannot be applied to an offence under s 12(2) of the Dangerous Drugs Ordinance 1952 because there is an alternative punishment of either a fine or imprisonment provided in that section; (2) in the circumstances of this case, a sentence of six months' imprisonment would be appropriate.

Digest :

Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256 High Court, Ipoh (Hashim Yeop A Sani J).

252 Dangerous Drugs Ordinance (Malaysia) -- s 12(2)

4 [252] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 12(2) – Possession of opium – Statutory presumption – Knowledge alone not sufficient – Dangerous Drugs Ordinance 1952, ss 12(2) and 37(b), (d) and (g) – Presumption under – Possession not established by evidence – Whether various presumptions raised – Custody and control – Knowledge.

Summary :

The accused was in a room in a house under the raised platform floor of which were found three tins of opium lying on the ground. Access to the location of the tins was from outside the house by crawling under the house. This was an appeal by the Public Prosecutor against an order of acquittal and discharge in the lower court where the respondent had been charged under s 12(2) of the Dangerous Drugs Ordinance 1952. The Public Prosecutor contended on appeal that the accused was the occupier of the premises. Reliance was placed on three presumptions contained in the ordinance, viz s 37(b), (d) and (g).

Holding :

Held: (1) mere presence in one of the two rooms of the house without more did not show that the accused had or appeared to have the care or management of the house and the presumption that she was the occupier could not be raised; (2) where the possession is not established by evidence, the prosecution has to prove that the accused had in her custody or under her control the drug before she could be deemed, until the contrary be proved, to be in possession of the drug and to know the nature of the contents. In this case as the three tins were found under the floor boards and access was possible only from outside, the prosecution did not raise the presumption; (3) knowledge by itself that the drug was concealed in the premises was not sufficient to fasten possession on the accused. It was only one of the ingredients of possession.

Digest :

Public Prosecutor v Lai Ah Bee [1974] 2 MLJ 74 High Court, Penang (Chang Min Tat J).

253 Dangerous Drugs Ordinance (Malaysia) -- s 12(3)

4 [253] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 12(3) – Possession of heroin – Chemist's report – Dangerous drugs – Possession of 0.10 gm of heroin – Notice given by defence requiring chemist to give evidence – Chemist not present – No objection by defence – Admission of chemist's report – Effect of – Sentence – Possession of 0.10 gm of heroin – Reduction of sentence – Dangerous Drugs Ordinance 1952, s 12(3) – Criminal Law Procedure Code (FMS Cap 6), s 399(i)(b) – Evidence Act 1950, s 32.

Summary :

The appellant was found to be in a possession of a box of cigarettes; in the box was a tube of greyish substance found to contain 0.10g of heroin. The appellant was served with the chemist's report. His counsel gave notice under s 399(i)(b) of the Criminal Procedure Code (Cap 6) to the prosecution re-quiring the presence of the chemist at the trial. At the trial, the prosecution did not call the chemist. When the investigating officer tendered the report as evidence, the defence did not raise any objection. The question for the court's determination was whether a chemist's report, in respect of which the prosecution had disregarded a notice under the said s 399(i) by an accused person to examine the chemist at the trial and the defence at the trial not objecting to the report being admitted as evidence, should be excluded from consideration by a trial court.

Holding :

Held: (1) the duty to see that a trial was conducted in a proper and fair manner did not lie merely on the court and the prosecution but on the defence as well. Since the admission of the report would have affected the accused, it was a matter for the defence to inform the court, particularly at the time when the report was tendered as evidence, that it wanted the chemist to be called; (2) the inaction or silence of the defence at this juncture could only be construed as a withdrawal or waiver of the notice and that it had no objection to the report being admitted; (3) as the facts indicated that the appellant was an addict and not a pusher, the sentence of imprisonment was set aside and a fine of RM400 in default four months' imprisonment was imposed.

Digest :

Mohamed bin Abdul Rahman v Pendakwa Raya [1979] 1 MLJ 252 High Court, Johore Bahru (Syed Othman J).

254 Dangerous Drugs Ordinance (Malaysia) -- s 2

4 [254] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 2 – Definition of Indian hemp – Prosecution must prove that it was Indian hemp within meaning of s 2

Digest :

Sallehuddin bin Yahya v Public Prosecutor [1979] 2 MLJ 138 High Court, Sibu (Tan Chiaw Thong J).

See CRIMINAL LAW, Vol 4, para 242.

255 Dangerous Drugs Ordinance (Malaysia) -- s 2

4 [255] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 2 – Definition of Indian hemp – What constitutes Indian hemp – Unlawful possession

Summary :

The appellant was charged with the unlawful possession of more than 401lbs of Indian hemp and was convicted and fined RM1,000 or six months' imprisonment in default of payment. It was argued for the appellant that although the substance found on the appellant formed a part of a species of a plant or plants known as cannabis sativa it did not constitute the finished product known as Indian hemp as defined in s 2 of the Dangerous Drugs Ordinance 1952.

Holding :

Held: (1) the mere fact that the plants were of a species known as cannabis sativa did not justify the inference that they were Indian hemp within the meaning of the Ordinance; (2) although the appellant was in possession of something from which Indian hemp might be constituted or manufactured, there was no adequate evidence upon which he could properly be convicted of unlawful possession of Indian hemp or an ascertained quantity of Indian hemp.

Digest :

Teoh Soo Tok v Public Prosecutor [1961] MLJ 74 High Court, Penang (Rigby J).

256 Dangerous Drugs Ordinance (Malaysia) -- s 30(2), (7)

4 [256] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 30(2), (7) – Forfeiture of vehicle – Gratuitous bailment – Bailor entitled to possession – Meaning of 'possession' – Dangerous Drugs Ordinance 1952, s 30(2) and (7) – Meaning of 'owner' – Meaning of 'possession'.

Summary :

This was an appeal against the forfeiture of a motor car under s 30(2) of the Dangerous Drugs Ordinance 1952. One Ong had pleaded guilty to a charge of possession of opium. The facts showed that the opium was concealed in a compartment which had been constructed under the rear seat of the car. The car was registered in the name of the appellant and the insurance policy was also in his name. The car had been lent by the appellant to Ong on the understanding that he was to return the car at the end of 14 days if he was not able to dispose of it. After the conviction of Ong, proceedings were taken with regard to the disposal of the car and the appellant was given opportunity of showing cause why the vehicle should not be forfeited. The learned President at the hearing held that Ong was the owner of the motor car for the purpose of s 30(2) of the Dangerous Drugs Ordinance and ordered that the car be forfeited to the government. On appeal it was argued that the learned President was wrong in his interpretation of s 30(2) and (7) of the Dangerous Drugs Ordinance.

Holding :

Held: (1) on the facts, the relationship between the appellant and Ong was that of a gratuitous bailment revocable at the will of the bailor and therefore the appellant who was the bailor had the right to immediate possession of the motor car; (2) as the appellant had the right to possess the car, he was the person entitled to possession and therefore the owner of the motor car for the purpose of s 30 of the Dangerous Drugs Ordinance; (3) as there was evidence to show that the offence was committed by Ong without the knowledge, consent or connivance of the appellant, the provision of s 30(2) of the Dangerous Drugs Ordinance applied and the car should not have been forfeited; (4) (per Buhagiar J) 'ÒPossessionÓ is a word of ambiguous meaning and its legal senses do not coincide with the popular sense. In common speech, a man is said to possess or to be in possession of anything of which he has the apparent control, or from the use of which he has the Òright of possessionÓ. ÒRight of possessionÓ, Òlegal possessionÓ, Òpossession in lawÓ, Òright to possessionÓ, Òconstructive possessionÓ, Òphysical possessionÓ, are phrases occurring in reports and in books and some of them are often used interchangeably, and careful attention must in every case be paid to the context. It is, I think, misleading to look for an interpretation of ÒpossessionÓ in definitions given generally to that word by reference to the criminal law. The question of possession for the purposes of criminal law is approached in method different from that in question of civil liability. Thus, for purposes of civil law, the decided cases, upon the whole, support the principle that knowledge is not essential to possession, while in criminal matters Òa man has not possession of that of the existence of which he is unawareÓ.'

Digest :

Loke Tham Chuan v Public Prosecutor [1955] MLJ 3 High Court, Ipoh (Buhagiar J).

Annotation :

[Annotation: Section 30(2) and (7) of the Federation's Dangerous Drugs Ordinance 1952 was similar to those of s 30(2) and (7) of the Dangerous Drugs Ordinance (Cap 137, 1955 Ed) of Singapore.]

257 Dangerous Drugs Ordinance (Malaysia) -- s 30(2)

4 [257] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 30(2) – Forfeiture of vehicle – Hire-purchase agreement – Forfeiture of vehicle in which raw opium was found – Vehicle in possession of hirer under hire-purchase agreement – Whether offence committed without knowledge, consent or connivance of owner – Whether owners entitled to possession – Dangerous Drugs Ordinance 1952, s 30(2).

Summary :

In this case, raw opium was found in a secret compartment in a car and the car was seized. The car was owned by the appellants but it had been hired out under a hire-purchase agreement to one Hong Siew Han. The hire-purchase agreement provided that hiring shall ipso facto determine if the hirer shall fail to observe or perform any of the provisions of the agreement and that the hirer shall, during the continuance of the hiring, not use or suffer to be used the vehicle in contravention of any law in force by reason of which the vehicle may be liable to seizure, confiscation or forfeiture or whereby the owner would become liable to or exposed to any penalty. At the inquiry held in the sessions court, the hirer was represented by counsel but no claim to the vehicle was made on his behalf. The learned President held that the hirer of the car was entitled to possession of it and he ordered the car to be confiscated. The appellants appealed.

Holding :

Held: (1) as the vehicle had been used for the conveyance of opium, this ipso facto determined the hiring and gave the appellants an immediate right to its possession; (2) as there was no evidence to show that the appellants had received the instalments after seizure of the car with knowledge of such seizure by the customs, the appellants should not be prejudiced by such acceptance.

Digest :

Eu Tong Sen Finance Ltd v Public Prosecutor [1965] 2 MLJ 29 High Court, Ipoh (Ong J).

258 Dangerous Drugs Ordinance (Malaysia) -- s 30(2)

4 [258] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 30(2) – Forfeiture of vehicle – Necessity of establishing complicity of owner of vehicle – Onus on owner to prove no knowledge, consent or connivance – Dangerous Drugs Ordinance 1952, s 30(2) – Forfeiture of lorry – Onus on owner of lorry to show that offence was committed without his knowledge, consent or connivance.

Summary :

In this case, the appellant appealed against the order of the President of the Sessions Court by which the appellant's lorry was forfeited under s 30(2) of the Dangerous Drugs Ordinance 1952. It was argued that it was necessary to establish some degree of complicity on the part of the owner of a vehicle before the forfeiture of the vehicle could be ordered.

Holding :

Held: (1) under s 30(2) of the Dangerous Drugs Ordinance 1952, it is not incumbent on the prosecution to prove complicity on the part of the owners; (2) in order to avoid forfeiture, the owner must prove to the satisfaction of the court that the offence was committed without his knowledge, consent or connivance and as the appellant in this case had failed to discharge the onus on him, the order for forfeiture was rightly made.

Digest :

Heng Hwang Kong v Public Prosecutor [1957] MLJ 15 High Court, Alor Setar (Hill J).

259 Dangerous Drugs Ordinance (Malaysia) -- s 30(3), (7)

4 [259] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 30(3), (7) – Forfeiture of vehicle – Onus on claimant to show that he was owner of vehicle

Summary :

The car which was driven by one Soh Lin Chong was stopped by customs officers and was found to contain a large quantity of raw opium hidden in secret compartments. The car was seized and, in the event, Soh Lin Chong together with two others were convicted of being parties to a criminal conspiracy to commit the offence of being in possession of the opium found in the car in contravention of s 120(b) of the Penal Code and s 6 of the Dangerous Drugs Ordinance 1952. In due course, the claimant claimed to be the owner of the car and in terms of s 30(3) of the Dangerous Drugs Ordinance was given an opportunity to show cause why it should not be forfeited. The learned President, in his judgment, said: 'The claimant has satisfied me as I find I am unable to say that his story is any less unlikely than the contrary', and ordered that the car be delivered to the claimant. The Public Prosecutor appealed on the grounds that (a) the learned President misdirected himself in law with regard to the quantum of proof that was necessary to support the claimant's claim, and (b) the evidence clearly showed that the true owner of the car was not the claimant but the convicted person Chan Lye Kim.

Holding :

Held: (1) what the claimant had to do to discharge the onus that lay upon him was to show that his story was more likely than the contrary; (2) it was not sufficient for the claimant to show that he was the proprietor or the registered owner of the car. What he had to show was that he was the owner in the sense in which that word is used in s 30(7) of the Dangerous Drugs Ordinance. The claimant having failed to show that he was the owner for the purpose of the Ordinance, his claim ought to have been dismissed. The order in the sessions court for the return of the car to the claimant was set aside.

Digest :

Public Prosecutor v Ng Cheng Sooi [1953] MLJ 233 High Court, Ipoh (Thomson J).

260 Dangerous Drugs Ordinance (Malaysia) -- s 30(7)

4 [260] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 30(7) – Forfeiture of vehicle – Hire-purchase agreement – Breach of agreement – Dangerous Drugs Ordinance 1952, s 30(7) – Forfeiture of vehicle used in commission of offence – Vehicle not liable to forfeiture when used in breach of agreement.

Summary :

Held: a car used in the commission of an offence under the Dangerous Drugs Ordinance 1952, will not be liable to forfeiture against the hirer when the agreement for the hire purchase of the car contains a provision that the use of the car in contravention of the law by the hire-purchaser constitutes a breach of the agreement and such use was without the knowledge or consent of the hirer.

Digest :

Public Prosecutor v Patani Motors Co Ltd [1957] MLJ 129 High Court, Alor Setar (Hill J).

Annotation :

[Annotation: See also Public Prosecutor v Eu Tong Sen Finance Co Ltd [1958] MLJ 31.]

261 Dangerous Drugs Ordinance (Malaysia) -- s 30

4 [261] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 30 – Forfeiture of vehicle – Hire-purchase agreement – Car returned to hirer – Raw opium – Importation – Forfeiture of vehicle used therefor – Motor car under hire-purchase agreement – Dangerous Drugs Ordinance 1952, s 30.

Summary :

This was an appeal against an order in respect of a motor car used for the commission of an offence of importing raw opium into the Federation contrary to the Dangerous Drugs Ordinance 1952 ('the Ordinance'). The car was lent to the accused by T who in turn had obtained it from the respondents under a hire-purchase agreement. The accused was convicted and the court directed the customs to issue a notice to the owner of the motor car to show cause why the car should not be forfeited in accordance with the provisions of s 30 of the Ordinance. The respondents and T appeared at the hearing in pursuance of the notice and the President ordered the car to be returned to the respondents. On appeal by the Public Prosecutor, it was argued that the agreement between T and the respondents, which purported to be a hire-purchase agreement, was not in fact a hire-purchase agreement, and that T had not denied that she had permitted the use of the vehicle for the purpose of carrying opium. The respondents maintained that the appellant was not entitled to look behind the agreement and that T, the hirer, had committed a breach of cl 5(b) of the agreement by permitting the use of the vehicle in contravention of a statute.

Holding :

Held: (1) in this case, there was no evidence that the offence had been committed with the knowledge, consent or connivance of T. That being so, if the agreement was a hire-purchase agreement, she had not committed a breach of it; (2) if on the other hand the agreement was not a hire-purchase agreement but a security for a loan, it was unenforceable because it did not comply with the provisions of the Bills of Sale Enactment. In either event, T was entitled to possession of the vehicle and not the respondents. The order of the President was therefore wrong.

Digest :

Public Prosecutor v Eu Tong Sen Finance Co Ltd [1958] MLJ 31 High Court, Johore Bahru (Hepworth J).

262 Dangerous Drugs Ordinance (Malaysia) -- s 33

4 [262] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 33 – Attempted exportation of drugs – Amendment of charge

Digest :

Tan Wang Keng v Public Prosecutor [1962] MLJ 47 High Court, Johore Bahru (Adams J).

See CRIMINAL LAW, Vol 4, para 241.

263 Dangerous Drugs Ordinance (Malaysia) -- s 37(a)

4 [263] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(a) – Statutory presumption – No proof of custody or control of drug – Presumption could not be invoked

Digest :

Low Geok Yeok v Public Prosecutor [1982] 2 MLJ 346 High Court, Penang (Gunn Chit Tuan J).

See CRIMINAL LAW, Vol 4, para 298.

264 Dangerous Drugs Ordinance (Malaysia) -- s 37(b), (d), (g)

4 [264] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(b), (d), (g) – Statutory presumption – Custody and control – When presumptions could be raised

Digest :

Public Prosecutor v Lai Ah Bee [1974] 2 MLJ 74 High Court, Penang (Chang Min Tat J).

See CRIMINAL LAW, Vol 4, para 261.

265 Dangerous Drugs Ordinance (Malaysia) -- s 37(d), (da)

4 [265] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d), (da) – Statutory presumption – Custody and control – Not rebutted – Sentencing policy – Charge of trafficking in heroin – Custody and control of heroin – Presumption of possession – Presumption of trafficking – Presumptions not rebutted – Balance of probability – Sentence.

Summary :

In this case, a party of customs officers conducted an investigation into a drug smuggling case. The accused was seen leaving her hotel and carrying a green suit case and a sling bag. She boarded a taxi and was driving towards Bayan Lepas Airport. At the airport, the accused was seen wheeling the green suit case to the check-in counter. The accused was detained and brought to the Customs Passengers Examination Hall. The suit case was examined in the presence of the accused and 22 plastic packages suspected to be drugs were found concealed within the walls of the suitcase. The chemist report confirmed that the 22 plastic bags contained 534g of heroin. The accused was questioned by a customs officer and subsequently a cautioned statement was recorded from her. In her cautioned statement and in her evidence, the accused claimed that the bag was given to her by a male Chinese whom she met and with whom she had fallen in love.

Holding :

Held: (1) when the accused was stopped by the customs officers, she had in her custody or under her control heroin weighing 534g. In the circumstances, the presumption of possession under s 37(d) and of trafficking under s 37(da) of the Dangerous Drugs Ordinance 1952 arose; (2) on the evidence and on a balance of probabilities, the presumptions had not been rebutted by the accused; (3) the relationship between drugs and violent crimes is one of the most serious issues facing our criminal law. In the condition now prevailing severe sentences are necessary. There is too much of this sort of crime being committed in this country and the necessity for severe measures for its repression are matters on which the Legislature has found it necessary to enact special laws. The accused should therefore be sentenced to death.

Digest :

Public Prosecutor v Saubin Beatrice [1983] 1 MLJ 307 High Court, Penang (BTH Lee J).

Annotation :

[Annotation: On appeal to the Federal Court, the sentence was altered to imprisonment for life. No grounds of judgment were given.]

266 Dangerous Drugs Ordinance (Malaysia) -- s 37(d), (da)

4 [266] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d), (da) – Statutory presumption – Custody or control by itself does not amount to trafficking until presumptions are invoked

Digest :

MW Barret v Public Prosecutor [1982] 2 MLJ 284 High Court, Alor Setar (Syed Agil Barakbah J).

See CRIMINAL LAW, Vol 4, para 291.

267 Dangerous Drugs Ordinance (Malaysia) -- s 37(d), (da)

4 [267] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d), (da) – Statutory presumption – Rebuttable presumption – Presumption rebutted by cautioned statement – Dangerous drugs – Possession of 1146.33 gms heroin and 81.03 gms morphine – Trafficking – Cautioned statement not considered – Conviction quashed – Dangerous Drugs Ordinance 1952, ss 37(d) & (da), 39B.

Summary :

The appellant in this case was found by customs officers asleep in a train on 8 March 1977. Next to her, close to her face, was found a parcel which was later found to contain 1,146.33g of heroin and 81.03g of morphine. Since the accused was found to be in possession of the parcel which contained the drugs, then by virtue of s 37(d) of the Dangerous Drugs Ordinance 1952 she would be deemed to be in possession of and to know of the existence of such drugs until the contrary is proved. Section 37(da) provides that proof of possession of more than 100g of heroin or morphine raises a rebuttable presumption that the possession is for the purpose of trafficking. The defence was called and at the conclusion of the trial, the accused was convicted of the offence of trafficking in the drugs contrary to s 39B of the Dangerous Drugs Ordinance1952, and was given the mandatory term of life imprisonment. It was found that the learned President had ignored the cautioned statement of the accused which was put in evidence by the prosecution and so formed part of the prosecution's case.

Holding :

Held, allowing the appeal: (1) the presumption in s 37(d) that possession of the container in which the dangerous drug is found is deemed to be possession of the drug itself is a rebuttable one; (2) a presumption can be rebutted from the evidence adduced by the prosecution; (3) in the present case, the presumption had been rebutted by the cautioned statement; (4) the defence ought not to have been called at the close of the prosecution's case. The presumption had been rebutted. All that had been proved by the prosecution at that stage was that she was in possession of a parcel. There was no evidence to show that the accused knew that the parcel contained heroin and morphine; (5) there would be no order of a retrial and the conviction should be quashed and sentence set aside.

Digest :

Chee Chiew Heong v Public Prosecutor [1981] 2 MLJ 287 High Court, Ipoh (Chan J).

268 Dangerous Drugs Ordinance (Malaysia) -- s 37(d), (g)

4 [268] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d), (g) – Statutory presumption – Car does not constitute 'premises' – Onus of proof of knowledge – Dangerous Drugs Ordinance 1952 – Possession of opium Presumption under s 37(d) and (g) – Onus of proof of knowledge – Admissibility – Court has no jurisdiction to amend recorded sentence in the absence of accused.

Summary :

A tin containing opium was found in the luggage boot of the motor car of which the appellant was the owner. On being questioned by the inspector as to what was inside the tin, the appellant was alleged to have replied: 'chandu'. The learned President considered whether there was a presumption against the appellant under para (d) or (g) of s 37 of the Dangerous Drugs Ordinance 1952 ('the Ordinance'). However, he did not feel that it was necessary to come to a conclusion, presumably as a result of the admission in the evidence of the statement of the appellant. The record showed that the appellant was convicted and sentenced to a fine of RM5,000 and six months' imprisonment, but after the case and in the absence of the appellant, the learned President fixed the period in default of fine (which he overlooked at the time of sentencing the appellant) as 12 months.

Holding :

Held: (1) the reply of the appellant was inadmissible under s 113(iii) of the Criminal Procedure Code, and s 27 of the Evidence Ordinance 1950 did not apply in this instance; (2) no presumption under s 37(g) of the Ordinance can arise because a car does not constitute 'premises' within the meaning of the Ordinance; (3) the presumption under s 37(d) can only arise after it has been proved that the appellant knew what was in the tin. The onus of proving this is on the prosecution; (4) the learned President had no jurisdiction to amend the recorded sentence in the absence of the accused.

Digest :

Choo Teck Soon v Public Prosecutor [1954] MLJ 63 High Court, Kuala Lumpur (Wilson J).

269 Dangerous Drugs Ordinance (Malaysia) -- s 37(d)

4 [269] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d) – Statutory presumption – 'Anything whatsoever containing' – Does not include a motor car

Digest :

Public Prosecutor v Salleh bin Saad [1983] 2 MLJ 164 High Court, Alor Setar (Syed Agil Barakbah J).

See CRIMINAL LAW, Vol 4, para 262.

270 Dangerous Drugs Ordinance (Malaysia) -- s 37(d)

4 [270] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d) – Statutory presumption – Burden of proof

Digest :

Hee Soon Jim v R [1955] SCR 22 Supreme Court, Sarawak, North Borneo and Brunei (Rogers J).

See CRIMINAL L=LAW, Vol 4, para 243.

271 Dangerous Drugs Ordinance (Malaysia) -- s 37(d)

4 [271] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d) – Statutory presumption – Possession of prepared opium – Opium in cooking pot in cabinet used as meatsafe – Whether cabinet in accused's custody or control

Summary :

Held: the prosecution had not established that the appellant had custody or control of the cabinet and therefore, presumption of possession of the opium under s 37(d) of the Penal Code did not arise.

Digest :

Sng Yong Khon v R [1956] SCR 42 Supreme Court, Sarawak, North Borneo and Brunei (Smith Ag CJ).

272 Dangerous Drugs Ordinance (Malaysia) -- s 37(d)

4 [272] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d) – Statutory presumption – Presumption can only arise if accused had knowledge

Digest :

Choo Teck Soon v Public Prosecutor [1954] MLJ 63 High Court, Kuala Lumpur (Wilson J).

See CRIMINAL LAW, Vol 4, para 284.

273 Dangerous Drugs Ordinance (Malaysia) -- s 37(d)

4 [273] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d) – Statutory presumption – Presumption rebutted by showing accused had no power of disposal over drugs – Balance of probabilities – Dangerous drugs – Accused charged with possession of 3029 gms of heroin and 184.28 gms of morphine – 'Possession' – 'Control' – 'Power of disposal' – Meaning of – Dangerous Drugs Ordinance 1952, s 37(d).

Summary :

The accused in this case was alone in the house when the police raided it on 20 January 1977. 3,029g of heroin and 184.28g of morphine were found in packages lying on the floor of his bedroom. He was originally charged by the prosecution for an offence of trafficking in dangerous drugs on the relevant date under s 39B(1)(a) of the Dangerous Drugs Ordinance 1952. The charge was later amended to one of possession of dangerous drugs. The accused pleaded not guilty to the amended charge. In his defence, the accused told the court that he left his house at about 3.00pm on the day in question for his night-club at Butterworth. As he was checking his stocks there, two Europeans, who were his customers, came to look for him. One of them, known as Mark Philips, told him that he wanted to meet a friend at the accused's residence. Thereupon, the three left for the residence. Whilst they were in his house, a male Chinese arrived there on a motor cycle. The two Europeans went out to meet him. The accused saw the male Chinese hand over two packets of article to Mark Philips who brought them into his house. The two Europeans then left the house leaving the packages in his room. Subsequently, the premises were raided by the police. The accused denied that he knew the packages contained heroin.

Holding :

Held: (1) in a case such as this, where the burden has shifted on to an accused to rebut a presumption under s 37(d) of the Dangerous Drugs Ordinance 1952, the burden can also be said to be discharged by merely showing on the balance of probabilities, that he did not have possession and did not know the nature of the drugs; (2) if the accused could show, on the balance of probabilities, that although he had something in his custody or under his control yet he did not have the power of disposal, then he would have rebutted the presumption under s 37(d) of the Dangerous Drugs Ordinance 1952, and would have shown that his custody or control of the things concerned did not in the circumstances amount to possession under the said ordinance; (3) in this case, although the accused had custody or control over the packages concerned at the time the police officers raided his house, he did not have the power of disposal over the said packages in the sense of being able to deal with them in the circumstances as owner to the exclusion of all others including the said two Europeans.

Digest :

Public Prosecutor v Ang Boon Foo [1981] 1 MLJ 40 High Court, Penang (Gunn Chit Tuan J).

274 Dangerous Drugs Ordinance (Malaysia) -- s 37(d)

4 [274] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d) – Statutory presumption – Prima facie case

Digest :

Public Prosecutor v Ong Chang Sow [1954] MLJ 82 High Court, Ipoh (Thomson J).

See CRIMINAL LAW, Vol 4, para 246.

275 Dangerous Drugs Ordinance (Malaysia) -- s 37(d)

4 [275] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37(d) – Statutory presumption – Prima facie case established

Digest :

DA Duncan v Public Prosecutor [1980] 2 MLJ 195 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 299.

276 Dangerous Drugs Ordinance (Malaysia) -- s 37A(1)

4 [276] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37A(1) – Admissibility of accused's admissions – 'After his arrest' – Actual, not constructive, arrest

Digest :

Public Prosecutor v Salleh bin Saad [1983] 2 MLJ 164 High Court, Alor Setar (Syed Agil Barakbah J).

See CRIMINAL LAW, Vol 4, para 262.

277 Dangerous Drugs Ordinance (Malaysia) -- s 37A

4 [277] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 37A – Cautioned statement – Statements made to police officer of or above rank of sergeant and to senior officers of customs – Statement inadmissible since customs officer not a senior officer of customs

Digest :

MW Barret v Public Prosecutor [1982] 2 MLJ 284 High Court, Alor Setar (Syed Agil Barakbah J).

See CRIMINAL LAW, Vol 4, para 291.

278 Dangerous Drugs Ordinance (Malaysia) -- s 38

4 [278] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 38 – Evidence of analysis in writing – Notice under Evidence Ordinance (Cap 6) to accused of prosecution's intention to produce analyst's certificate – Whether applicable to certificate under s 38

Summary :

Held: the provision in the Evidence Ordinance (Cap 6) requiring ten days' notice to an accused is not applicable when a certificate of analysis under s 38 of the Dangerous Drugs Ordinance 1952 is produced by the prosecutor.

Digest :

Chuon Choon Hiong v R [1956] SCR 1 Supreme Court, Sarawak, North Borneo and Brunei (Lascelles J).

279 Dangerous Drugs Ordinance (Malaysia) -- s 38

4 [279] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 38 – Evidence of analysis in writing – Notice under Evidence Ordinance (Cap 6) to accused of prosecution's intention to produce analyst's certificate – Whether applicable to certificate under s 38

Summary :

The provision regarding ten days' notice to an accused under s 9(1)(b) of the Evidence Ordinance (Cap 6) is inapplicable when evidence of analysis is given under s 38 of the Dangerous Drugs Ordinance 1952.

Digest :

Tan Kheng Chay v R [1956] SCR 16 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ).

Annotation :

[Annotation: Chuon Choon Hiong v R [1956] SCR 1 followed.]

280 Dangerous Drugs Ordinance (Malaysia) -- s 38

4 [280] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 38 – Evidence of analysis in writing – Notice under Evidence Ordinance (Cap 6) to accused of prosecution's intention to produce analyst's certificate – Whether applicable to certificate under s 38

Digest :

Hii Chung Toh v R [1956] SCR 102 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ< Rogers and Bodley JJ).

281 Dangerous Drugs Ordinance (Malaysia) -- s 39

4 [281] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39 – Trafficking in dangerous drugs – Amended charge – Consent of Public Prosecutor not obtained – Dangerous drugs – Trafficking – Amended charge – Acquittal – Dangerous Drugs Ordinance 1952, ss 37(b) & (g), 39B(1)(a), 39B(1)(c), 39B(3) – Criminal Procedure Code (FMS Cap 6), s 214(i).

Summary :

The accused was originally charged with trafficking in dangerous drugs on 21 July 1976 at TBG 13-6 Jalan Harper, Kelang under s 39B(1)(a) of the Dangerous Drugs Ordinance 1952 ('the Ordinance'). On 25 November 1976, the Public Prosecutor issued his written consent to prosecute under s 39B(3) of the said Ordinance. At the trial, on 19 September 1977, the learned Deputy Public Prosecutor amended the charge in two respects: The offence was alleged to have been committed at TBG 1306A, Jalan Harper, Kelang and the offence alleged was that of doing an act preparatory to trafficking under s 39B(1)(c) of the Ordinance. No consent of the Public Prosecutor had been obtained on the amended charge.

Holding :

Held, acquitting and discharging the accused: (1) the trial was a nullity as the Public Prosecutor had not given his consent on the amended charge; (2) the facts as found in this case did not support either charge.

Digest :

Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45 High Court, Kuala Lumpur (Harun J).

282 Dangerous Drugs Ordinance (Malaysia) -- s 39

4 [282] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39 – Trafficking in dangerous drugs – Conviction inconsistent with evidence – Dangerous drugs – Charge of trafficking in dangerous drug – Evidence of admission to customs officer – Whether admissible – Failure to produce bag in which dangerous drug alleged to be found – Dangerous Drugs Ordinance 1952, ss 37, 37A & 39.

Summary :

This was an appeal from the decision of the President of the Sessions Court, Kangar, by the appellant who had been convicted for trafficking in cannabis and sentenced to life imprisonment. The facts were that a customs officer boarded a Bangkok express train bound for Butterworth at Padang Besar Railway Station to check the luggage of passengers. He saw the appellant with a bag by his side. The customs officer alleged that the appellant admitted that the bag next to him was his and at the request of the customs officer, the appellant unzipped it. The customs officer searched the bag and found seven packages of cannabis concealed in the fold of some clothing. The customs officer alleged that the appellant admitted that the seven packages belonged to him and identified them to be marijuana. The accused was arrested and later charged. At the trial, the alleged admissions of the appellant to the customs officer was admitted in evidence and the learned President in his grounds of judgment said that the prosecution's case was reinforced by the oral admission of the appellant. In his defence, the appellant denied making the oral admission. He said that he told the customs officer that the bag and cannabis belonged to his friend, who had earlier been arrested for another offence relating to drugs found in his bag. He called his friend as a witness and the friend admitted owning the bag and the seven package of cannabis found therein. The bag was not produced by the prosecution as it was stated that it had been returned to the appellant.

Holding :

Held, allowing the appeal: (1) since the customs officer in this case was not a senior officer of customs, the alleged admissions were rendered inadmissible on the ground that they are not statements made in accordance with s 37A of the Dangerous Drugs Ordinance 1952; (2) in this case, the learned President did not rely on the presumptions under the ordinance but he called for the defence on the strength of the other evidence, reinforced by the appellant's admissions to the customs officer. However, it required much stronger and more convincing evidence than the evidence brought in this case for the prosecution to prove the charge against the appellant without the aid of the presumptions; (3) in this case, the production of the bag was material as the facts and surrounding circumstances involved not one bag but different bags and the discovery of cannabis in two of them leading to the arrest of the other person and the appellant almost at the same time and place are all matters which have to be considered in fairness to the defence; (4) in this case there were irregularities, wrong inferences and improper admission of evidence, which occasioned a failure of justice and could not be cured by s 422 of the Criminal Procedure Code. The learned President had failed to apply the correct test in considering the defence and the conviction was therefore against the weight of the evidence.

Digest :

MW Barret v Public Prosecutor [1982] 2 MLJ 284 High Court, Alor Setar (Syed Agil Barakbah J).

283 Dangerous Drugs Ordinance (Malaysia) -- s 39A

4 [283] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39A – Possession of heroin – Sentencing principles – Inadequate sentence – Respondent convicted of offence under s 39A, Dangerous Drugs Ordinance 1952 – Binding over – Whether sentence adequate – Principles of sentencing – Criminal Procedure Code (FMS Cap 6), s 294 – Dangerous Drugs Ordinance 1952, s 39A.

Summary :

The respondent, a 20-year-old youth, was convicted of an offence under s 39A of the Dangerous Drugs Ordinance 1952. The learned President ordered that he be bound over for two years. The Public Prosecutor appealed against the inadequacy of the sentence.

Holding :

Held, allowing the appeal: (1) unless the courts take a firm stand in the matter, the whole purpose of the legislature in enacting s 39A of the ordinance which imposes a minimum mandatory term of imprisonment of three years and a maximum of 14 years would be lost; (2) considering the amount and quantity of the drugs found in his possession, the respondent was not merely an addict but an operator of somewhat greater significance; (3) the order of the learned President should be set aside and the respondent sentenced to imprisonment for three years.

Digest :

Public Prosecutor v Yeoh Eng Khuan [1976] 1 MLJ 238 High Court, Ipoh (Abdoolcader J).

284 Dangerous Drugs Ordinance (Malaysia) -- s 39B(1)(a)

4 [284] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B(1)(a) – Trafficking in dangerous drugs – Prima facie case not made out – Accused not in possession of drugs or occupier of kitchen where drugs found – Dangerous drugs – Dangerous drug manufacturing – Failure of prosecution to prove custody or control of drug or that accused had manufactured drug – Accused given benefit of doubt – Dangerous Drugs Ordinance 1952, s 39B(1)(a) & 39B(2).

Summary :

The accused appealed against the conviction and sentence of the sessions court. He was charged with trafficking in dangerous drugs (manufacturing) of 56g raw opium and 3.5g chandu dross under s 39B(1)(a) of the Dangerous Drugs Ordinance 1952. The facts revealed that a customs party raided No 94 MacAlister Lane. In the kitchen they found two stoves which were on the fire. On one was an enamel basin containing a dark brown vegetable material which was raw opium and some brownish coloured liquid which was raw opium extract. In the other pot on the fire was a dark viscous liquid which contained 1,109g of chandu. A senior customs officer went to the back portion. He saw somebody running into the direction of the bathroom and chased him and found only the appellant in it. He did not see the fire escape and did not know whether the figure had escaped through the fire escape.

Holding :

Held: (1) the learned President should have acquitted and discharged the appellant at the close of the case for the prosecution which had not made out a prima facie case against him; (2) there was no evidence that the appellant was in exclusive occupation of the kitchen where the two stoves were found and therefore he could not be held to be the occupier of it; (3) the prosecution also did not prove who was in custody or control of the stoves containing the dangerous drug in question and therefore it was not even able to prove who was in possession of the drug in question as the presumption under s 37(a) of the Dangerous Drugs Ordinance 1952 could not be invoked; (4) the benefit of the doubt should have been given to the appellant. The appeal should be allowed and the conviction quashed accordingly.

Digest :

Low Geok Yeok v Public Prosecutor [1982] 2 MLJ 346 High Court, Penang (Gunn Chit Tuan J).

285 Dangerous Drugs Ordinance (Malaysia) -- s 39B(1)(a)

4 [285] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B(1)(a) – Trafficking in dangerous drugs – Prosecution had proved their case beyond reasonable doubt – Charge of trafficking in dangerous drugs – Denial of accused – No doubt cast on prosecution case – Sentence – Dangerous Drugs Ordinance 1952, ss 37 and 39.

Summary :

In this case, the appellant had been convicted of trafficking in dangerous drugs and sentenced to life imprisonment and whipping of six strokes. He appealed against the conviction and sentence.

Holding :

Held, dismissing the appeal: the prosecution in this case had proved their case beyond reasonable doubt and the defence had not cast any doubt on the case for the prosecution that the appellant had custody, control and possession of the dangerous drugs.

Digest :

DA Duncan v Public Prosecutor [1980] 2 MLJ 195 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

286 Dangerous Drugs Ordinance (Malaysia) -- s 39B(1)(a)

4 [286] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B(1)(a) – Trafficking in dangerous drugs – Sentence – First offenders – Death sentence – Sentence – Charge of trafficking in dangerous drugs – Death sentence substituted for that of life imprisonment – Dangerous Drugs Ordinance 1952, s 39B(1)(a).

Summary :

The respondents had pleaded guilty to a charge of trafficking in dangerous drugs. They had been caught red-handed in the processing of a large quantity of heroin. The learned trial judge took into consideration that the respondents were first offenders and had pleaded guilty and he sentenced them to life imprisonment. The Public Prosecutor appealed.

Holding :

Held: the appellants should have been sentenced to death, notwithstanding that they were first offenders and had pleaded guilty, as they were engaged in manufacturing heroin in a systematic and in a big way.

Digest :

Public Prosecutor v Oo Leng Swee & Ors [1981] 1 MLJ 247 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

287 Dangerous Drugs Ordinance (Malaysia) -- s 39B(1)(a)

4 [287] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B(1)(a) – Trafficking in dangerous drugs – Transfer of case – Whether judge had power to transfer – Dangerous drugs – Trial of offences – Power of Attorney General – Dangerous Drugs Ordinance 1952, ss 39 and 41A.

Summary :

The respondents in this case were charged with offences under the Dangerous Drugs Ordinance 1952, and after preliminary inquiries were held they were committed to stand trial at the High Court. When the cases came up before the High Court, the learned judge made orders transferring the cases for trial in the Special Sessions Court. The Public Prosecutor applied for the trials in the Special Sessions Court to be stayed and for the learned judge to refer certain questions to the Federal Court, by which in effect the Federal Court was asked to give a ruling whether the learned judge had power to transfer these cases to the subordinate court and, if so, whether he properly exercised that power.

Holding :

Held: (1) the transfer of the cases from the High Court to the Special Sessions Court was not proper in the circumstances; (2) the power of a judge of the High Court to transfer a case under s 25(2) of the Courts of Judicature Act 1964 (Act 91) and item 12 of its Schedule was subject to the discretion of the Attorney General under art 145(3) of the Federal Constitution to choose the forum in which persons charged under s 39B(1)(a) of the Dangerous Drugs Ordinance were to be tried; the power conferred under art 115(3) on the Attorney General would override the power of the High Court to transfer, so that the judge had no power to transfer such cases as in the present case on his own motion for trial in a subordiante court.

Digest :

Public Prosecutor v Lim Shui Wang & Ors [1979] 1 MLJ 65 Federal Court, Kuala Lumpur (Suffian LP, Gill CJ (Malaya).

288 Dangerous Drugs Ordinance (Malaysia) -- s 39B(1)(c)

4 [288] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B(1)(c) – Trafficking in dangerous drugs – Appellant found filling drugs into a plastic tube – Dangerous drugs – Trafficking – Heroin and morphine – Appellant found filling drugs into a plastic tube – Dangerous Drugs Ordinance 1952, s 39B(1)(c).

Summary :

The police raided the premises at No 12A Jalan Sarawak, Kuala Lumpur, and found the appellant filling drugs into a plastic tube. On seeing the police, the appellant tried to escape by jumping from the first floor. In the room, the police recovered 18 plastic packets and 72 plastic tubes containing 55.37g of heroin and 8.58g of morphine and 249 empty plastic tubes. The room was rented by one Ah Kee. In his defence, the appellant claimed that he was a drug addict and had gone on that day to see Ah Kee to buy drugs. Ah Kee was not in so he helped himself by pouring the drugs into a plastic tube when the police arrived. The learned President convicted him of the offence of drug trafficking. He appealed.

Holding :

Held, dismissing the appeal: there was ample evidence to support the finding of the learned President. If the purpose of the appellant in visiting the room was merely to help himself to drugs, all he had to do was to pick up a few of the 72 filled plastic tubes. There was no necessity to fill a new plastic tube.

Digest :

Sin Cheok Choong v Public Prosecutor [1979] 1 MLJ 92 High Court, Kuala Lumpur (Harun J).

289 Dangerous Drugs Ordinance (Malaysia) -- s 39B(1)

4 [289] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B(1) – Trafficking in dangerous drugs – Sentencing policy – Sentence – Death sentence – Should be imposed in proper case – Trafficking in dangerous drug – Dangerous Drugs Ordinance 1952, s 39B(1).

Summary :

In this case, the appellants had been convicted of a charge of trafficking in 1,550.1g of heroin. Hong Hoo Chong, the second appellant, was sentenced to imprisonment for life and 14 strokes of the rotan. He appealed against the sentence and the Public Prosecutor cross-appealed against the sentence imposed.

Holding :

Held: in the circumstances of this case, the imposition of a term of imprisonment for life is wholly inadequate as it does not reflect the gravity of the offence and the circumstances of the case against the appellant, his record of previous convictions, the public interest involved in respect of crimes of this nature and a sufficient factor of deterrence to others of his ilk. The sentence of death should therefore be substituted for the sentence of imprisonment for life and whipping.

Digest :

Loh Hock Seng & Anor v Public Prosecutor [1980] 2 MLJ 13 Federal Court, Penang (Raja Azlan Shah CJ (Malaya).

290 Dangerous Drugs Ordinance (Malaysia) -- s 39B

4 [290] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B – Trafficking in dangerous drugs – Amendment of charge – Public Prosecutor's consent – Evidence of agent provocateur – Charge of trafficking in dangerous drugs – Use of agent provocateur – Cautioned statement – Consent of Public Prosecutor – Amendment of charge – Prosecution conducted by Deputy Public Prosecutory – Dangerous Drugs Ordinance 1952, ss 39B & 40A.

Summary :

In this case, the accused was charged with trafficking in dangerous drugs. A police officer acted as agent provocateur in this case to buy the drugs from the accused. The accused gave a cautioned statement admitting that he sold the drugs. The accused was originally charged 'jointly' with some other persons and the Public Prosecutor had consented to the institution of this charge. At the trial, the charge was amended to read 'on his own behalf'. The prosecution was conducted by a Deputy Public Prosecutor.

Holding :

Held: (1) by virtue of s 40A of the Dangerous Drugs Ordinance 1952, the evidence of the agent provocateur needed no corroboration to found a finding by the court; (2) the cautioned statement was made voluntarily and was admissible in evidence; (3) although the charge had been amended after the consent given for the prosecution by the Public Prosecutor, as the prosecution was conducted by the Deputy Public Prosecutor, the consent of the Public Prosecutor was implicit. The amendment of the charge by the Deputy Public Prosecutor was proper and the court had jurisdiction to try the accused under the amended charge; (4) in this case, the defence had failed to raise any reasonable doubts in the case for the prosecution and therefore the accused must be found guilty of the charges; (5) in view of the fact that the accused was a first offender and had got himself involved only three months before he was arrested and that the amount of drugs was not very substantial, a sentence of life imprisonment was adequate.

Digest :

Public Prosecutor v Mohamed Halipah [1982] 1 MLJ 155 High Court, Muar (Yusof Abdul Rashid J).

291 Dangerous Drugs Ordinance (Malaysia) -- s 39B

4 [291] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B – Trafficking in dangerous drugs – Defence of duress – Defence rejected – Sentence reduced – Dangerous drugs – Trafficking of 2,700 gms of cannabis – Defence of duress rejected – Sentence reduced from life imprisonment and whipping to life imprisonment only – Dangerous Drugs Ordinance 1952, ss 37A & 39B.

Summary :

The appellant was found guilty of trafficking on his own behalf in dangerous drugs, to wit 2,700g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Ordinance 1952, on 27 December 1977 at the railway station, Perlis. He was sentenced to life imprisonment and four strokes of the rotan. He appealed against both the conviction and sentence. The appellant admitted that he carried the two bags containing cannabis but maintained that he did so under threat from a male Thai whom he met by chance in a hotel. The man threatened him with a pistol and told him to carry the two bags across the border to the railway station, Padang Besar, and if he did so, the Thai promised to pay him RM400, but if he did not do so he would be shot.

Holding :

Held, dismissing the appeal: (1) there was nothing to suggest that when the appellant placed the bags on the platform and went to purchase the ticket, duress was present or continued to be present; (2) the element of truth is required but the element of probability is the main factor so that if the court accepts the defence story as probable even though it is not convinced of the truth, then the defence has succeeded in proving to the contrary the presumption that has arisen. In this case, the learned President applied the correct test and concluded that the alleged threat was improbable; (3) as regards the sentence, in view of the seriousness of the offence, the imposition of life imprisonment was justified. However, in the light of extenuating circumstances which led him to commit the offence and as he was a first offender, he should be spared the rotan.

Digest :

Mohamed Yusof bin Haji Ahmad v Public Prosecutor [1983] 2 MLJ 167 High Court, Alor Setar (Syed Agil Barakbah J).

292 Dangerous Drugs Ordinance (Malaysia) -- s 39B

4 [292] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 39B – Trafficking in dangerous drugs – Statutory presumption under s 37(d) rebutted by cautioned statement

Digest :

Chee Chiew Heong v Public Prosecutor [1981] 2 MLJ 287 High Court, Ipoh (Chan J).

See CRIMINAL LAW, Vol 4, para 283.

293 Dangerous Drugs Ordinance (Malaysia) -- s 4(1)

4 [293] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 4(1) – Importation of raw opium – Absolute prohibition – Mens rea only in mitigation – Dangerous Drugs Ordinance, s 4(1) – Importation of raw opium – Absolute prohibition – Mens rea.

Summary :

This was an appeal against the conviction of the appellant on a charge under s 4(1) of the Dangerous Drugs Ordinance 1952. On appeal, the question was raised whether the wording of the section indicated an absolute prohibition or whether it was necessary for the prosecution to prove mens rea in order to secure a conviction.

Holding :

Held: (1) the provisions of s 4(1) of the Dangerous Drugs Ordinance amount to an absolute prohibition of the import of raw opium and therefore it is unnecessary for the prosecution to prove mens rea or knowledge; (2) the lack of knowledge of the accused is a matter for mitigation of sentence.

Digest :

Lim Eng Soon v Public Prosecutor [1953] MLJ 166 High Court, Johore Bahru (Storr J).

Annotation :

[Annotation: Reference may be made to Ong Aik Phow v R [1937] MLJ 73.]

294 Dangerous Drugs Ordinance (Malaysia) -- s 40A

4 [294] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 40A – Agent provocateur – Evidence of agent provocateur needs no corroboration to found a finding by court

Digest :

Public Prosecutor v Mohamed Halipah [1982] 1 MLJ 155 High Court, Muar (Yusof Abdul Rashid J).

See CRIMINAL LAW, Vol 4, para 294.

295 Dangerous Drugs Ordinance (Malaysia) -- s 41B

4 [295] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 41B – Bail not to be granted – Quantity of drugs not ascertained – Bail dependent on quantity – Section not applicable

Digest :

Ho Huan Chong & Ors v Public Prosecutor [1980] 2 MLJ 289 High Court, Seremban (Ajaib Singh J).

See CRIMINAL LAW, Vol 4, para 263.

296 Dangerous Drugs Ordinance (Malaysia) -- s 5

4 [296] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 5 – Exportation of raw opium – Mens rea – Attempted exportation – Attempted export of opium – Dangerous Drugs Ordinance 1952, ss 5(1) and 33 – Whether mens rea necessary – 'Export' – Meaning of.

Summary :

The appellant whilst driving his car, and after he had passed the customs station at Johore Bahru en route to Singapore, was stopped on the causeway in Johore territory, and 270 lbs of raw opium was found in his car. The learned President, following the decision in Public Prosecutor v Lee Tuah Suah [1948] MLJ 55, amended the charge from one of exporting to one of attempting to export under the Dangerous Drugs Ordinance 1952 on the ground that before there could be any export, the goods must actually leave the territorial limits of the Federation. It was argued for the appellant that as he was unaware of the existence of the opium in his car, he could not be found guilty of the offence charged because mens rea is a ncessary element in the commission of an attempt to commit an offence.

Holding :

Held: (1) s 5 of the Dangerous Drugs Ordinance imposes an absolute prohibition against the export of raw opium without licence and the absence of knowledge of the drug is no defence. Though in the normal meaning of the word 'attempt' there must be actus reus and mens rea, it is not illogical to hold that where there is an absolute prohibition against the doing of an act, there may also be an absolute prohibition against the making of an attempt without a requirement for mens rea. The appellant was therefore guilty of attempting to export even if he did not know the opium was in his car; (2) (per curiam) the law as to what constitutes 'export' appeared to have been settled since 1948 following the judgment of Taylor J in Public Prosecutor v Lee Tuah Suah [1948] MLJ 55. The court could therefore give no 'ruling' on the matter.

Digest :

Tan Wang Keng v Public Prosecutor [1962] MLJ 47 High Court, Johore Bahru (Adams J).

Annotation :

[Annotation: As to mens rea where there is absolute prohibition, see Ong Aik Phow v R [1937] MLJ 73; [1937] SSLR 12.]

297 Dangerous Drugs Ordinance (Malaysia) -- s 6

4 [297] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 6 – Possession of Indian hemp – Prosecution must prove that it was Indian hemp within meaning of s 2 – Discretion of appellate court to order a retrial – Dangerous drugs – Indian hemp – Possession of – Prosecution must prove that it was Indian hemp within meaning of Dangerous Drugs Ordinance – Dangerous Drugs Ordinance 1952, ss 2 & 6.

Summary :

The applicant in this case was charged in the lower court with possession of Indian hemp. The government chemist gave evidence in court that he analysed the contents of 40 of the 198 rolls handed to him for analysis and he found them to be cannabis. He further stated that cannabis was also known as Indian hemp and ganja. No one involved in the trial took the trouble to ascertain from him whether the Indian hemp mentioned by him was that which falls within the definition of 'Indian hemp' in s 2 of the Dangerous Drugs Ordinance 1952. The applicant applied under s 66(1) and (6)(a) of the Courts of Judicature Act 1964 (Act 91) to have reserved for the decision of the Federal Court alleged questions of law of public interest which had arisen in the course of the appeal of the applicant against his conviction. The court ordered a retrial and the applicant argued that it was in conflict with authorities cited.

Holding :

Held: (1) s 316(b) of the Criminal Procedure Code gives an appellate court a discretionary power in suitable cases to order a retrial; (2) in a trial of this sort, when the substance analysed was described as Indian hemp by the expert witness, he should have been asked to clarify whether the Indian hemp stated by him was of the type as defined in s 2 of the Dangerous Drugs Ordinance; (3) if the chemist had been asked to elaborate on what was meant by the Indian hemp mentioned in his evidence, there was nothing to suggest that his answer would invariably be that the Indian hemp meant the type of Indian hemp as defined in s 2 of the Dangerous Drugs Ordinance. The point should in the interests of justice have been clarified in the lower court; (4) hence, as in this case, where an appellate court considers that it is in the interests of justice which do not prejudice the appellant, the appellate court has the discretionary power to order a retrial in an appeal; (5) the questions posed did not involve any question of law of public interest as required by s 66(1) of the Courts of Judicature Act. No reference to the Federal Court should therefore be allowed.

Digest :

Sallehuddin bin Yahya v Public Prosecutor [1979] 2 MLJ 138 High Court, Sibu (Tan Chiaw Thong J).

298 Dangerous Drugs Ordinance (Malaysia) -- s 6

4 [298] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 6 – Possession of opium – Burden of proof

Summary :

The magistrate was justified in finding that the appellant had failed to discharge the onus which had shifted to her to show that there was a reasonable probability that she was not in possession of the drugs and that she did not know the nature of the drugs.

Digest :

Hee Soon Jim v R [1955] SCR 22 Supreme Court, Sarawak, North Borneo and Brunei

299 Dangerous Drugs Ordinance (Malaysia) -- s 6

4 [299] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 6 – Possession of opium – Custody or possession while asleep – Dangerous drugs – Possession of opium – Opium found in bags in berth of accused on railway coach – Accused found sleeping in berth – Whether accused could be said to be in possession of opium – Dangerous Drugs Ordinance 1952.

Summary :

The facts in this case were that in the course of the search of the night mail train from Penang, the police found opium in two bags which were in the sleeping berth occupied by the accused on the train. The accused was found sleeping in the berth. The learned President of the Sessions Court acquitted the accused at the close of the prosecution case as he said: 'As far as I am aware, there is no law to say or presume that a sleeping man is conscious of anything at all.' The Public Prosecutor appealed.

Holding :

Held , allowing the appeal: the learned President was wrong in holding that a person otherwise in custody or possession loses the awareness of the custody or possession when he is asleep and in this case, the accused should have been called upon to enter on his defence.

Digest :

Public Prosecutor v Tang Chew Weng [1969] 2 MLJ 17 High Court, Ipoh (Chang Min Tat J).

300 Dangerous Drugs Ordinance (Malaysia) -- s 6

4 [300] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 6 – Possession of raw opium – Evidence of customs officer conniving in commission of offence – Whether customs officer an accomplice – Corroboration

Summary :

Held: the customs officer in such circumstances is not an accomplice and his evidence did not require in law to be corroborated.

Digest :

Ng Car Lee v R [1956] SCR 20 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ).

301 Dangerous Drugs Ordinance (Malaysia) -- s 6

4 [301] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 6 – Possession of raw opium – Onus of proof – Statutory presumption – Position different from Singapore's – Dangerous Drugs Ordinance 1952, s 6 – Unlawful possession of raw opium – Onus of proof.

Summary :

In this case, the evidence was that a party of customs officers entered the house of the respondent and found under a bed a locked box which later was found to contain raw opium. The key of this box was not in the possession of the respondent but in the possession of a neighbour. At the close of the prosecution case, the learned President acquitted and discharged the accused as he found that there was no case to answer on the charge under s 6 of the Dangerous Drugs Ordinance 1952. He relied on the decision of the Singapore High Court in the case of Ho Seng Seng v R [1951] MLJ 225, and held that the prosecution had not discharged the onus of showing that the respondent knew that the box contained opium.

Holding :

Held: (1) the Singapore case referred to was not an authority for the learned President to follow as the decision was based on the wording of the Singapore Dangerous Drugs Ordinance which was different from the wording of the Federation ordinance; (2) s 37(d) of the Dangerous Drugs Ordinance raises a presumption that a person is in possession of a dangerous drug if he is found to have in his custody or control anything whatever containing the dangerous drug and therefore the learned President was wrong in holding in this case that there was no prima facie case against the accused.

Digest :

Public Prosecutor v Ong Chang Sow [1954] MLJ 82 High Court, Ipoh (Thomson J).

302 Dangerous Drugs Ordinance (Malaysia) -- s 6

4 [302] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 6 – Possession of raw opium – Opium found on land – Accused owner of land but not occupier – Valid reason for visiting land – Accomplice evidence

Summary :

Held: allowing the appeal: (1) the prosecution had not established that the appellant was the occupier of the land and therefore the presumption under s 37 did not arise; (2) the trial magistrate had misdirected himself in assessing the credibility of an accomplice appearing as a witness for the prosecution; (3) it is sufficient for it to be recorded in the grounds of decision that the witness was believed or disbelieved where the credibility of a witness is concerned.

Digest :

Lim Chai Leng v R [1957] SCR 5 Supreme Court, Sarawak, North Borneo and Brunei (Lascelles J).

303 Dangerous Drugs Ordinance (Malaysia) -- s 6

4 [303] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 6 – Possession of raw opium – Sentence – Discretion of court – 'Liable on conviction to a fine of $10,000' – Whether mandatory – Dangerous Drugs Ordinance 1952, s 6.

Summary :

The appellant in this case was convicted of unauthorized possession of a quantity of raw opium, contrary to the provisions of s 6 of the Dangerous Drugs Ordinance 1952. The relevant words in that section are that a convicted person 'shall be guilty of an offence against this ordinance and liable on conviction to a fine of RM10,000 or to imprisonment for a term not exceeding five years or to both such fine and imprisonment'. The learned President sentenced him to a fine of RM10,000 or 18 months' imprisonment in default of payment.

Holding :

Held: the penalty of a fine of RM10,000 provided under s 6 of the ordinance is not mandatory. It is in fact the maximum penalty provided and the court has discretion to impose a fine of any sum within the maximum amount of RM10,000. Fine reduced to RM2,000.

Digest :

Khor Seek Pok v Public Prosecutor [1958] MLJ 170 High Court, Penang (Rigby J).

304 Dangerous Drugs Ordinance (Malaysia) -- s 9(1)(a)

4 [304] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 9(1)(a) – Possession of prepared opium – Mens rea

Summary :

Held, allowing the appeal: mens rea is not an element in the offences constituted by s 126(10(a) of the Customs Ordinance 1952 and s (1)(a) of the Dangerous Drugs Ordinance 1952, the liability in either case being an absolute one.

Digest :

R v Kung Sie Chew [1958] SCR 55 Supreme Court, Sarawak, North Borneo and Brunei

305 Dangerous Drugs Ordinance (Malaysia) -- s 9(1)(b)

4 [305] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 9(1)(b) – Possession of prepared opium – Opium in cooking pot in cabinet used as meatsafe – Whether cabinet in accused's custody or control

Digest :

Sng Yong Khon v R [1956] SCR 42 Supreme Court, Sarawak, North Borneo and Brunei.

See CRIMINAL LAW, Vol 4, para 276.

306 Dangerous Drugs Ordinance (Malaysia) -- s 9(1)(b)

4 [306] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 9(1)(b) – Possession of prepared opium – Plea of guilty, effect of – Sentence – Dangerous Drugs Ordinance 1952 – Whether evidence of delivery of chemist's report is necessary where accused had pleaded guilty to the charge – Sentence – Criminal Procedure Code, s 427(1).

Summary :

This was an appeal against the conviction and sentence of the appellant for possession of prepared opium. At the trial, the appellant pleaded guilty. On appeal, it was argued that the conviction was bad as there was no evidence that a copy of the chemist's report had been delivered to the appellant as required by s 427(1) of the Criminal Procedure Code.

Holding :

Held: (1) as the appellant had pleaded guilty, there was no question of the prosecution proving their case and therefore it was not necessary for the learned magistrate to have evidence that the provisions of s 427(1) of the Criminal Procedure Code had been complied with; (2) if the court felt a sentence of imprisonment was necessary to effect a cure, it should have the assistance of expert medical opinion in deciding how long was required in the case of the accused, and to impose a prison sentence to effect a cure without such medical evidence can only lead to possible injustice to an accused person.

Digest :

Eng Song Hai v Public Prosecutor [1954] MLJ 38 High Court, Malacca (Bellamy J).

307 Dangerous Drugs Ordinance (Malaysia) -- s 9(2)

4 [307] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – s 9(2) – Possession of prepared opium – Chemist's report, delivery of – Admissibility – Dangerous Drugs Ordinance1952 Possession of prepared opium Delivery of copy of chemist's report Criminal Procedure Code, s 427(1).

Summary :

This was an appeal from the conviction of the appellant on a charge under s 9(2) of the Dangerous Drugs Ordinance 1952. It appeared that there was no evidence before the trial court to show that the copy of the chemist's report had been delivered to the accused as required under the proviso to s 427(1) of the Criminal Procedure Code.

Holding :

Held: to render the report of the chemist admissible in evidence, the prosecution must satisfy the court by oral evidence that the provisions of the proviso to s 427(1) of the Criminal Procedure Code has been complied with, that is to say, that a copy thereof has been delivered to the accused within the time stipulated in the proviso, and until the prosecution has done this the report cannot be received in evidence.

Digest :

Chong Peng v Public Prosecutor [1954] MLJ 39 High Court, Malacca (Bellamy J).

308 Dangerous Drugs Ordinance (Malaysia) -- ss 12(2), 39A

4 [308] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – ss 12(2), 39A – Possession of heroin – Quantity of drugs not ascertained – Bail dependent on quantity – Prosecution should not mention quantity – Bail – Dangerous drugs – Having under control – Dangerous Drugs Ordinance 1952, ss 12(2) & (3), 39A and 41B.

Summary :

The applicants in this case applied for bail. They were jointly charged with having under their control 7.4g of heroin, an offence under s 12(2) and punishable under s 39A of the Dangerous Drugs Ordinance 1952. They applied on several grounds and the High Court in this case considered the ground 'that there was no certainty that the amount of heroin recovered was 7.4g'. The prosecution said that the three persons were arrested in a hotel room and from one of them the police recovered a powdery substance 7.4g in weight and suspected to contain heroin. This powdery substance had been sent to the chemist for analysis. The prosecution conceded that it was not in a position to say definitely that the amount of heroin would amount to 7.4g as stated in the charge as the chemist had not yet ascertained the actual amount of heroin to be found in the powdery substance.

Holding :

Held: (1) where the granting of bail is dependent on the quantity of any dangerous drug, then the exact amount of this dangerous drug which is to be stated in the charge assumes great importance. The prosecution should therefore refrain from mentioning the amount of the drug if the prosecution was not in a position to ascertain the exact amount of the drug when an accused person was first charged in court. Otherwise the charge need not state the quantity of the drug concerned and if there was no other valid reason why bail was not granted the accused should be offered bail; (2) in this case, the provisions of s 41B could not be invoked because the relevant condition in sub-s (1)(b) of s 41B had not been strictly fulfilled; (3) in the absence of any other valid impediment to the granting of bail, the three accused persons ought to be released on bail. The court allowed bail in the sum of RM3,000 with one surety each.

Digest :

Ho Huan Chong & Ors v Public Prosecutor [1980] 2 MLJ 289 High Court, Seremban (Ajaib Singh J).

Annotation :

[Annotation: The chemist's report was made available to the learned magistrate on 12 February 1980 wherein the amount of heroin was stated to be 4.22g out of the total of 7.4g of the powdery substance. The prosecution thereafter amended the charge to one under s 12(2) and punishable under s 12(3) of the Dangerous Drugs Ordinance 1952. The first accused pleaded guilty and was convicted and sentenced to a day's imprisonment and a fine of RM1,500. The prosecution withdrew the charge against the second and third accused.]

309 Dangerous Drugs Ordinance (Malaysia) -- ss 39A, 12(2)

4 [309] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – ss 39A, 12(2) – Possession of heroin – Quantity of drug not ascertained – Bail dependent on quantity – Prosecution should not mention quantity

Digest :

Ho Huan Chong & Ors v Public Prosecutor [1980] 2 MLJ 289 High Court, Seremban (Ajaib Singh J).

See CRIMINAL LAW, Vol 4, para 263.

310 Dangerous Drugs Ordinance (Malaysia) -- ss 39B(1)(a), 37(d)

4 [310] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – ss 39B(1)(a), 37(d) – Trafficking in dangerous drugs – Charge amended to one of possession

Digest :

Public Prosecutor v Ang Boon Foo [1981] 1 MLJ 40 High Court, Penang (Gunn Chit Tuan J).

See CRIMINAL LAW, Vol 4, para 278.

311 Dangerous Drugs Ordinance (Malaysia) -- ss 6,4(1)

4 [311] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – ss 6,4(1) – Possession of raw opium – Trafficking – Sentence – Disposal of seized property

Summary :

This was an appeal against sentences imposed on the appellants who were convicted on charges of importing raw opium and possession of opium under ss 4(1) and 6 of the Dangerous Drugs Ordinance (Cap 119). They were sentenced to two years' imprisonment on the first charge and 15 months' imprisonment on the second charge. No application was made for the disposal of opium in the lower court.

Holding :

Held: (1) where a person is found to have possession of opium in such quantity as to show positively and convincingly that he is engaged in trafficking in such drug, the proper sentence is a deterrent sentence. A fine can never be a deterrent sentence; (2) an application for the disposal of the seized property, the opium in this case, should have been made in the lower court as soon as the court had delivered judgment.

Digest :

Lasoo & Anor v Public Prosecutor [1965] 1 MLJ 235 High Court, Sibu (Lee Hun Hoe CJ).

312 Dangerous Drugs Ordinance (Malaysia) -- ss 6, 37(d)

4 [312] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – ss 6, 37(d) – Possession of raw opium – Statutory presumption – When applicable

Summary :

The appellant in this case was the owner of a motor lorry, of which the second accused in the case was the driver and the third accused the attendant. On 12 February 1955, the lorry was stopped by custom officers on the main road just outside Teluk Anson. At the time the lorry was stopped, the driver and the appellant were sitting in front of the lorry in the driver's cabin. The seat in the cabin consisted of a sort of wooden box divided into two compartments, the top of which has a hinged lid upon which the occupants sit. The driver and the appellant were sitting on top of this box, the attendant was in the rear. In the box which was not locked in the compartment immediately under where the appellant was sitting was found a small leather bag. In this bag under some worn out personal clothing were found four slabs of raw opium. The prosecution relied on the presumption under s 37(d) of the Dangerous Drugs Ordinance 1952. The learned President held that the statutory presumption arose against the appellant and the driver but not against the attendant. After hearing the evidence for the defence, he acquitted the driver and convicted the appellant. From his grounds of judgment, it was clear that the President convicted the appellant because he held that the presumption contained in s 37(d) of the Ordinance operated against him, as he held that the lorry came within the words 'anything whatsoever containing' the opium.

Holding :

Held: (1) a vehicle in which a drug is being carried does not ipso facto fall within the words 'anything whatsoever containing any dangerous drug' and therefore in such a case the presumption contained in s 37(d) of the Dangerous Drugs Ordinance does not arise; (2) as in this case the learned President had made it clear that apart from the presumption he would not have convicted, the conviction could not stand and must be set aside.

Digest :

Tong Peng Hong v Public Prosecutor [1955] MLJ 232 High Court, Ipoh (Thomson J).

313 Dangerous Drugs Ordinance (Malaysia) -- ss 9(1)(b), 10(2)(a)

4 [313] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – ss 9(1)(b), 10(2)(a) – Possession, proof of – Plea of guilty – Dangerous drugs – Possession – Dangerous Drugs Ordinance 1952, ss 9(1)(b) & 10(2)(a).

Summary :

This was an appeal against sentence. The accused, having pleaded guilty to the two charges against him under ss 9(1)(b) and 10(2)(a) of the Dangerous Drugs Ordinance 1952, could not appeal against his conviction because of the provisions of s 305 of the Criminal Procedure Code. The accused asked the court to exercise its revisionary powers under s 325(i) of the code. At the trial, the charges were read over to the accused, explained and understood by him. He pleaded guilty thereto. He admitted the facts but in mitigation stated that the exhibits were not his and that they had been left behind by a friend. In spite of what the accused said, the learned President found him guilty and convicted him on the two charges.

Holding :

Held: (1) the proof of 'possession' is the very essential ingredient of the offences under the Dangerous Drugs Ordinance 1952; (2) a plea of guilty only amounts to an admission that the accused committed the acts alleged against him and not an admission of the guilt under a particular section of the ordinance. If he pleads guilty under an erroneous view of the law, his conviction cannot stand. In such a case, the plea of guilty does not avail because he cannot be said to have committed the offence in question in the eyes of the law; (3) therefore, the appeal was allowed and the case sent back for retrial before another President; (4) (per Sharma J) '... A plea of guilty may be accepted by the court and the accused convicted on it, but the court is not bound to accept a plea of guilty in all cases. The court must carefully consider whether the accused has fully understood the nature of the charge to which he pleads guilty. The accused is not to be taken at his word when he pleads guilty unless the plea is expressed in unmistakable terms with full appreciation of the essential ingredients of the offence. This rule of law is applied with all the greater stringency when the offence charged is complicated or serious.'

Digest :

Heng Kim Khoon v Public Prosecutor [1972] 1 MLJ 30 High Court, Ipoh (Sharma J).

314 Dangerous Drugs Ordinance (Malaysia) -- ss 9(1)(b), 10

4 [314] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – ss 9(1)(b), 10 – Possession of prepared opium, smoking pipes and utensil – Sentence – Distinction between addicts and pushers – Dangerous drugs – Possession of opium smoking utensils – Possession of opium – Drug addict or pushers – Assessment of sentence – Dangerous Drugs Ordinance 1952, ss 9(1)(b) and 10.

Summary :

The appellant aged 37 had pleaded guilty to two charges under the Dangerous Drugs Ordinance 1952. The first charge was under s 10 of the Ordinance for being in possession of two smoking pipes and other opium utensils. The second charge was under s 9(1)(b) for being in possession of ten ounces of prepared opium and eleven ounces of opium dross. He had one previous record for similar offences, and the learned President sentenced him to six months imprisonment on each of the two charges, the sentences to run concurrently. The appellant was dissatisfied with the said order on the grounds, inter alia, that he was now undergoing treatment at the General Hospital, Kuala Lumpur, and that the learned President erred in law in not seeking medical evidence before imposing the sentence of imprisonment.

Holding :

Held: (1) in assessing sentence involving drugs, a distinction should be made between possession of such drugs by addicts and possession by pushers or carriers; (2) under the circumstances, and having regard to the small quantity of chandu involved, the sentence imposed was manifestly excessive as it served no useful purpose and a sentence of fine would be imposed instead.

Digest :

Tan Tai Hee v Public Prosecutor [1974] 1 MLJ 229 High Court, Kuala Lumpur (Mohamed Azmi J).

315 Dangerous Drugs Ordinance (Malaysia) -- ss 9, 28(d), (g)

4 [315] CRIMINAL LAW Dangerous Drugs Ordinance (Malaysia) – ss 9, 28(d), (g) – Possession of prepared opium – Cautioned statement

Summary :

The appellant was convicted by the President of the Sessions Court, Alor Setar, on the charge of having in his possession prepared opium, an offence under s 9(1)(b) of the Dangerous Drugs Ordinance 1952, punishable under s 9(2) of the same ordinance. The opium was found under the stairs of the premises occupied by the appellant, a place where he admitted he sometimes kept goods. Counsel for the appellant objected to the admission of the first statement made by the appellant which was taken in accordance with the provisions of s 28(d) and (g) of the ordinance. The caution administered to the accused before he made his statement was as follows: 'You are warned before this statement is recorded that you are bound by law to give information to a customs officer which may be reasonably required from you and which it is in your power to give, and whatever information you may give shall be true information only, and it is brought to your notice that any refusal or neglect to give information as aforesaid or giving of information which you know or have reason to believe to be false will constitute an offence under the Dangerous Drugs Ordinance No 30 of 1952 and that this statement may be used as evidence either for or against you.' Hill J in his judgment said: 'It seems clear to me, however, that the above warning offends against s 24 of the Evidence Ordinance... By its wording this warning contains, if no promise, certainly a threat and inducement and in this case, it certainly proceeded from a person in authority. In my opinion, it was sufficient to give the appellant grounds which would have appeared to him reasonable for supposing that he would gain an advantage or avoid some evil.' In conclusion, the learned judge remarked: 'Indeed, I doubt if the provisions of s 28, which are so fundamentally opposed to established principles and procedure concerning the administration of justice, were ever intended to apply to such persons.'

Digest :

Heah Chin Kim v Public Prosecutor [1954] MLJ xxxiii High Court, Kedah (Hill J).

316 Dangerous Drugs Ordinance (Singapore) -- s 10(2)(b)

4 [316] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – s 10(2)(b) – Frequenting place used for smoking or consuming opium – Interpretation of section – Place must be currently used – Consumption of prepared opium – Dangerous Drugs Ordinance (Cap 137), s 10(2)(b) – Interpretation.

Summary :

The appellants were charged with being found in a place used for the purpose of smoking prepared opium, contrary to s 10(2)(b) of the Dangerous Drugs Ordinance (Cap 137, 1955 Ed). The subsection reads: 'If any person smokes or otherwise consumes prepared opium or frequents any place or places used for the purpose of smoking or otherwise consuming prepared opium, he shall be guilty of an offence....'

Holding :

Held: s 10(2)(b) must be interpreted to mean that the place in question must have been contemporaneously or currently used for smoking or otherwise consuming prepared opium.

Digest :

Ang Hian & Ors v R [1959] MLJ 255 High Court, Singapore (Rose CJ).

Annotation :

[Annotation: Compare ss 11 and 19 of the Misuse of Drugs Act (Cap 185, 1985 Ed)]

317 Dangerous Drugs Ordinance (Singapore) -- s 10(2)(b)

4 [317] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – s 10(2)(b) – Frequenting place used for smoking or consuming opium – Meaning of 'frequent' – Dangerous Drugs Ordinance 1951, s 10(2)(b) – Frequenting – Meaning of.

Summary :

The short point in this case was upon the meaning of the word 'frequent' in s 10(2)(b) of the Dangerous Drugs Ordinance 1951. In a number of English cases quoted herein, the word had been extended to mean being in a place long enough for the purpose or intent in hand, but in these cases the wrongful purpose or intent was an essential ingredient of the charge.

Holding :

Held: in s 10(2)(b), no intent or purpose need be proved so that the word 'frequent' contained therein could not be given the meaning of being in a place long enough. It could only be given its ordinary meaning of 'visiting often', so that a person committed an offence under this section if he visited a number of similar premises on one occasion each.

Digest :

R v Tan Ah Inn & Ors [1953] MLJ 65 High Court, Singapore (Brown J).

318 Dangerous Drugs Ordinance (Singapore) -- s 10(2)

4 [318] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – s 10(2) – Possession of opium-smoking utensils – No opium found – Whether sufficient evidence of possession – Dangerous drugs – 'Possession' of opium needle – Whether fiddling amounts to possession – Evidence.

Summary :

Held: in the absence of any evidence that the accused was smoking opium, the mere fact of his proximity to articles used for smoking opium does not constitute sufficient evidence of possession to justify a conviction.

Digest :

Ong Chong Hin v R [1959] MLJ 96 High Court, Singapore (Rose CJ).

Annotation :

[Annotation: See now s 9 of the Misuse of Drugs Act (Cap 185, 1985 Ed).]

319 Dangerous Drugs Ordinance (Singapore) -- s 30(7)

4 [319] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – s 30(7) – Forfeiture of vehicle – Meaning of 'owner' – Whether magistrate had made order for forfeiture – Dangerous Drugs Ordinance 1951, s 30(7) – Meaning of 'owner' – Criminal Procedure Code (Cap 21), s 296 – Order – Whether magistrate's ruling as to ownership within s 30(7) Dangerous Drugs Ordinance amounts to an order.

Summary :

The proceedings started with the prosecution of a Chinese for alleged unlawful possession on board a motor sampan of raw opium in contravention of the Dangerous Drugs Ordinance 1951 ('the Ordinance'). That Chinese was acquitted but the magistrate held that an offence under the ordinance had been committed, and under s 30(3) asked the owner to show cause why the vessel should not be forfeited. After hearing the evidence of the appellant and of a witness called by him, the magistrate decided that Tay Koon Tien, who was apparently steering the boat at the time it was stopped by customs officers, was the owner at the material time within the meaning of s 30(7) of the Ordinance, and thereupon called him under the same section to show cause. At that point, counsel for the appellant gave notice of appeal and the proceedings were adjourned.

Holding :

Held: (1) in connection with a criminal cause or matter, the word 'order' is confined to those final decisions of the court which affect parties to the proceedings in respect of their person or property; (2) in holding that Tay Koon Tien was the owner of the vessel, the learned magistrate did not make anything in the nature of a conclusive order in relation to the vessel. As the magistrate had not made an order for forfeiture, this appeal was premature.

Digest :

Gng Eng Hwoo v R [1954] MLJ 256 High Court, Singapore (Whitton J).

Annotation :

[Annotation: Sir John Woodroffe in his Criminal Procedure in British India defines 'order' as the formal expression of a decision of a criminal court not being a judgment of acquittal or conviction.]

320 Dangerous Drugs Ordinance (Singapore) -- s 37(c), (d)

4 [320] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – s 37(c), (d) – Statutory presumption – Possession of prepared opium and smoking utensils – Knowledge of accused – 'Custody', 'control' and 'possession' – Dangerous Drugs Ordinance (Cap 137), s 37(c) and (d) – Possession – Statutory presumption – Onus of proof – 'Custody, control and possession' – meaning of.

Summary :

In this case, a party of three detectives made a raid on the attic of a premises, and on entering the attic, two of the detectives saw the appellant holding a confectionery tin in his hands and attempting to get out of the attic through an opening. On examination, the tin was found to contain a phial of chandu dross,an opium pipehead, a rag and some tools. The appellant was charged with possession of prepared opium and smoking utensils in contravention of ss 9 and 10(2) respectively of the Dangerous Drugs Ordinance (Cap 137, 1955 Ed) ('the Ordinance'). In his defence, the appellant said that he went to the premises in question with a friend to see the occupier to buy a fishing net, but was told by the occupier's wife that her husband was out. She asked them to go to the roof garden and wait, so they went upstairs and sat in the attic, and about ten minutes later, he said, the detectives entered the attic. He denied holding the tin at any time, or ownership of it or its contents. The appellant was convicted. On appeal he contended, inter alia, that there was no evidence of possession.

Holding :

Held: (1) as regards the charge of possession of prepared opium, the presumption in s 37(d) of the Ordinance applied. A person has a thing in his custody if he has actual physical control over it; (2) to invoke the presumption, it is not necessary for the prosecution to prove that the person knew that the thing was a dangerous drug. The purpose of a statutory presumption is nullified if the prosecution has to prove the very thing that is to be presumed; (3) the conviction on both charges could be supported without having recourse to the presumption under s 37(d) of the Ordinance. As the opium pipe-head and the chandu and chandu dross were found in the attic, the presumption arose under s 37(c) of the Ordinance that the attic was used for the smoking of chandu by a human being and that the occupier permitted the attic to be used for such purpose. As the contents of the confectionery tin were in the appellant's physical control, and as the circumstances justified the inference that the appellant intended to exercise control over them for his own purposes, he was rightly found to be in possession of the contents of the tin.

Digest :

Neo Koon Cheo v R [1959] MLJ 47 High Court, Singapore (Ambrose J).

321 Dangerous Drugs Ordinance (Singapore) -- s 37(d)

4 [321] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – s 37(d) – Statutory presumption – Burden of proof – Knowledge of accused – Dangerous drugs – Possession – Onus of proof – Knowledge.

Summary :

The appellant was caught by a detective while he was carrying a parcel containing raw opium from the boot of the car which he had driven to a certain house. He stated that the parcel was given to him by a friend to deliver and that he did not know the contents thereof. His friend was called to give evidence in support. The detective however stated that the appellant when caught tried to get away and that the parcel smelt like raw opium. The prosecution relied on s 37(d) of the Dangerous Drugs Ordinance 1951, and submitted that the burden of proof shifted to the appellant to prove that he did not know what was in the parcel.

Holding :

Held: before the burden of proof shifted from the prosecution to the defence, the onus was upon the prosecution to prove to the satisfaction of the court that the appellant knew that the raw opium was in the parcel. From the evidence as a whole, it is probable that the appellant was an innocent carrier and was unaware of the contents.

Digest :

Tan Peng Heng v R [1954] MLJ 89 High Court, Singapore (Brown Ag CJ).

Annotation :

[Annotation: Caution should be taken when construing s 37(d) of the Federation Dangerous Drugs Ordinance 1952, which is different from the wording of the Singapore Dangerous Drugs Ordinance 1951 see Public Prosecutor v Ong Chang Sow [1954] MLJ 82.]

322 Dangerous Drugs Ordinance (Singapore) -- s 37

4 [322] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – s 37 – Statutory presumption – Possession of utensils for preparing opium – Accused fiddling with opium needle – Dangerous drugs – 'Possession' of opium needle – Whether fiddling amounts to possession – Evidence.

Digest :

Ong Chong Hin v R [1959] MLJ 96 High Court, Singapore (Rose CJ).

See CRIMINAL LAW, Vol 4, para 312.

323 Dangerous Drugs Ordinance (Singapore) -- s 37

4 [323] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – s 37 – Statutory presumption – Proximity to opium-smoking utensils – No opium found – Whether sufficient evidence of possession

Digest :

Ong Chong Hin v R [1959] MLJ 96 High Court, Singapore (Rose CJ).

See CRIMINAL LAW, Vol 4, para 312.

324 Dangerous Drugs Ordinance (Singapore) -- ss 10(2)(b), 37(c)

4 [324] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 10(2)(b), 37(c) – Frequenting place used for smoking or consuming opium – Scope of section – Applicability of statutory presumption – Presumption – Person found in, or escaping from a place used for the purpose of smoking opium – Construction

Summary :

The appellant in this case was convicted of being found in a place used for the purpose of smoking prepared opium, contrary to s 10(2)(b) of the Dangerous Drugs Ordinance (Cap 137, 1955 Ed). In his grounds of decision, the learned magistrate said, 'Upon taking all the evidence produced in support of the prosecution, I held that a prima facie case against the accused had been made out with the aid of s 37(c) which, if unrebutted, would warrant the conviction of the accused.' It was contended for the appellant that the inference to be drawn from this passage was that the learned magistrate relied, at any rate in part, upon the presumption section of the ordinance, and was therefore presumably not completely convinced by the facts as deposed to by the prosecution witnesses.

Holding :

Held: (1) the purpose of s 10(2)(b) of the ordinance is to penalize only those persons who are found in or escaping from a place that is used for the purpose of smoking opium. The section cannot be stretched to cover a case of a person being found in a place which is not being used for the purpose of smoking opium, and therefore the presumption clause, having regard to the principles of interpretation, would be inapplicable. Section 37(c) of the ordinance expressly states that the presumption that the premises are used for the purpose of smoking or consuming a dangerous drug is subject to the escape clause 'until the contrary is proved'; (2) if the evidence adduced by the prosecution, or the cumulative effect of the evidence adduced both by the prosecution and by the defence, leads the court to the conclusion that the premises in question are not being currently used for the smoking of opium, then it would seem that the contrary has been proved; (3) the learned magistrate's reference to the presumption section cannot be regarded as derogating from the authority of his finding on the facts; (4) in the present case, it is abundantly clear that there was ample material upon which the learned magistrate could and indeed must have found that the premises were in fact being used for the smoking of opium. There was therefore no need for any invocation of a presumption;the appeal must be dismissed and the conviction and sentence affirmed.

Digest :

Ho Aw Huan v R [1960] MLJ 177 High Court, Singapore (Rose CJ).

325 Dangerous Drugs Ordinance (Singapore) -- ss 30, 6

4 [325] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 30, 6 – Forfeiture of vehicle – Possession of raw opium – Negligence no ground for forfeiture – Some degree of complicity of owner necessary – Dangerous Drugs Ordinance 1951, ss 6, 30 & 40 – Protection of informers, s 40 – Forfeiture of car in which opium was found, s 30 – Negligence no ground for forfeiture – Some degree of complicity of owner is necessary.

Summary :

The first appellant, Seah Choon Yong, was the owner of the motor car in which opium was found; the second appellant, Tay Kai Kee, borrowed the car from the first appellant. The opium was found under the rear seat of the car in which the second appellant was driving in company with another person, who was not present at the trial. The second appellant was charged with being in possession of raw opium under s 6 of the Dangerous Drugs Ordinance 1951 ('the Ordinance'). Evidence by the second appellant at the trial appeared to show that he had given information of the opium two days prior to his arrest to the detective who stopped the car and arrested him. The second appellant was convicted. The first appellant (the owner of the car) was called upon to show cause why the car should not be forfeited in accordance with s 30 of the Ordinance. All knowledge that the car was to be used for the conveyance of opium was denied. It was also argued by counsel for the defence that even if the owner had knowledge of the fact, the second appellant had informed the police and thus he was an informer in accordance with s 40 of the Ordinance and the car was used as a police trap to catch the criminals and therefore, there was no mens rea. The forfeiture of the car was ordered. On these facts, the first appellant appealed against the forfeiture. The accused (the second appellant) appealed against conviction and sentence.

Holding :

Held: from the evidence, the second appellant appeared to have acted as a police informer before the offence was committed and, if his story was true, he was guilty, if at all, in a purely technical sense and therefore the case should be sent back for a retrial. The decision on the forfeiture of the car must necessarily await the retrial of the whole case, as the learned Chief Justice did not think that negligence was a ground for forfeiture.

Digest :

Seah Choon Yong & Anor v R [1954] MLJ 173 High Court, Singapore (Murray-Aynsley CJ).

Annotation :

[Annotation: Cases with similar facts may be decided differently under s 28 of the Misuse of Drugs Act (Cap 185, 1985 Ed), which empowers the court to order forfeiture of a vehicle used in connection with an offence under the Act, unless it is established by the owner that the vehicle was unlawfully in the possession of another person without the owner's consent. Nevertheless, it is unlikely that the court can or will exercise its discretion to do so unless some degree of complicity at least is established on the part of the owner.]

326 Dangerous Drugs Ordinance (Singapore) -- ss 37(c), 10(2)(b)

4 [326] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 37(c), 10(2)(b) – Statutory presumption – Frequenting place used for smoking or consuming opium – Applicability of presumption

Digest :

Ho Aw Huan v R [1960] MLJ 177 High Court, Singapore (Rose CJ).

See CRIMINAL LAW, Vol 4, para 315.

327 Dangerous Drugs Ordinance (Singapore) -- ss 4, 5, 6, 7

4 [327] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 4, 5, 6, 7 – Possession of raw opium – Act of revenue officer in the course of his duty – Burden of proof

Digest :

R v Ismail [1959] MLJ 148 High Court, Singapore (Rose CJ).

See CRIMINAL LAW, Vol 4, para 323.

328 Dangerous Drugs Ordinance (Singapore) -- ss 4, 5, 6

4 [328] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 4, 5, 6 – Possession of opium – Dangerous Drugs Ordinance 1951, ss 4, 5 and 6 – Possession.

Summary :

In this case, the appellant was charged for importing 174lbs of raw opium, an offence contrary to s 4(1) and punishable under s 4(2) of the Dangerous Drugs Ordinance 1951; alternatively, for possession of the said opium contrary to ss 4 and 5 and punishable under s 6 of the said ordinance. The learned district judge found the appellant guilty on the alternative charge and sentenced him to two and a half years' rigorous imprisonment. The undisputed facts briefly were as follows: at about 6.10 am on 31 May 1951, a party of revenue officers chased, stopped and searched a motor sampan with the appellant as the sole occupant, heading for land. In the aft, underneath a loose board, they found 52 slabs of a black substance, and in the fore, another 27 slabs, which were subsequently proved by the chief chemist to be raw opium. The appellant's defence was that he had no knowledge that there was opium aboard as on 21 May 1951, some ten days before his arrest, he had hired out the sampan for two weeks to one Tan Hu Chin, who had come to him on the afternoon before the day of his arrest, and told him that the sampan had broken down outside the breakwaters and that the appellant should carry out the repairs immediately. He stated that at the time of his arrest, he was on his way to return the sampan to Tan Hu Chin. Tan Hu Chin gave evidence and stated that he himself had taken delivery of the opium in question from a ship lying outside the breakwaters and concealed it in the sampan when it was discovered at the time of the appellant's arrest. The learned district judge found it (a) 'exceedingly difficult to believe that the accused had no knowledge that the opium was in the boat', (b) 'hard to believe' Tan, whom he was convinced was 'a stooge who was prepared to take the rap for money', and (c) proved that the appellant was fully aware that there was in the sampan opium of which he had the custody and control. The appellant was accordingly convicted and sentenced to two years and six months' imprisonment. The appellant appealed on the grounds inter alia that: (a) there was no evidence to support the finding of the learned district judge that the appellant was fully aware that there was opium in the sampan, (b) the learned district judge did not, as he might have done, find that any of the presumptions contained in s 37 of the Dangerous Drugs Ordinance 1951 arose and therefore did not consider, as he should then have done, whether the appellant had rebutted such presumption.

Holding :

Held: the evidence justified the finding of the district judge, who had in his judgment dealt with all relevant matters.

Digest :

Sim Chwee Chua v R [1951] MLJ 227 High Court, Singapore (Murray-Aynsley CJ).

329 Dangerous Drugs Ordinance (Singapore) -- ss 48, 36

4 [329] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 48, 36 – Exception under s 48 – Possession of raw opium – Act of revenue officer in the course of his duty – Burden of proving exception – Dangerous drugs – Act of revenue officer in the course of his duty – Burden of proof – Exception – Dangerous Drugs Ordinance (Cap 137), ss 36 and 48.

Summary :

The first respondent, a revenue officer, was charged that 'he on or about 29 May 1958 at about 8.15pm in motor sampan No SC 6875 at sea off Master Attendant's pier, did have in his possession raw opium, to wit: 40lbs gross, otherwise than under and in accordance with an authorization such as is referred to in ss 4 and 5 of the Dangerous Drugs Ordinance (Cap 137, 1955 Ed) ('the Ordinance'), or with a regulation made under s 7 of the said Ordinance contrary to and punishable under s 6 of the Dangerous Drugs Ordinance (Cap 137, 1955 Ed)'. At the close of the prosecution evidence, the respondents were acquitted without having been called upon for their defence. The learned district judge who tried the case concluded his grounds of decision as follows: 'The prosecution proved a few minor points tending to raise suspicion against the first accused, but these were outweighed by the many material points shown in his favour. It is needless to say that mere suspicion is not enough to rebut the presumption of innocence in a criminal case, though it may well form the basis of a disciplinary inquiry against the officer. The prosecution therefore failed to establish a case against the first accused, and it was the duty of the court to acquit him forthwith. It was clearly shown that the second accused was his informer at the time and as such, he also had to be acquitted on both charges without his defence being called.' From this decision the Public Prosecutor appealed.

Holding :

Held: (1) it is clear from s 36 of the Dangerous Drugs Ordinance that the burden of proving the exception under s 48 rests upon the defence; (2) if at the end of the prosecution case there were not sufficient facts to establish affirmatively that the exception under s 48 had been established, then the proper course is for the defendants to be called upon for their defence.

Digest :

R v Ismail [1959] MLJ 148 High Court, Singapore (Rose CJ).

330 Dangerous Drugs Ordinance (Singapore) -- ss 6, 37(d)

4 [330] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 6, 37(d) – Possession of raw opium – Statutory presumption – Onus of proof of accused's knowledge – Meaning of 'possession', 'custody' and 'control' – Dangerous Drugs Ordinance 1951, ss 6 and 37 – Possession – Onus of proof – Words 'control' and 'custody' – Meaning of.

Summary :

The appellant was charged and convicted by the learned district judge of possession of 385[1/2] tahils of raw opium, an offence punishable under s 6 of the Dangerous Drugs Ordinance 1951 ('the Ordinance'). The prosecution proved that when arrested, the appellant was carrying a basket and, on examination of its contents, there was found to be over 30 pounds of opium. The learned district judge took the view that the prosecution, having proved that the opium was in the basket which the appellant was carrying, s 37(d) of the Ordinance had the effect of shifting the onus to the appellant to prove that he did not know that it was there. The appellant who was sentenced to three years' rigorous imprisonment, appealed on the grounds inter alia that the learned district judge had misdirected himself upon the burden of proof.

Holding :

Held: (1) the onus of proving that the appellant knew the parcel he was carrying contained a dangerous drug was upon the prosecution; (2) the learned district judge had misdirected himself upon the burden of proof. Appeal allowed, conviction and sentence quashed.

Digest :

Ho Seng Seng v R [1951] MLJ 225 High Court, Singapore (Brown Ag CJ).

Annotation :

[Annotation: This case was not followed in Neo Koon Cheo v R [1959] MLJ 47. At any rate, such a case will now be decided differently by virtue of s 18 of the Misuse of Drugs Act (Cap 185, 1985 Ed).]

331 Dangerous Drugs Ordinance (Singapore) -- ss 6, 40, 30

4 [331] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 6, 40, 30 – Possession of raw opium – Police informer – Motor vehicle used as police trap – Whether forfeiture of vehicle valid

Digest :

Seah Choon Yong & Anor v R [1954] MLJ 173 High Court, Singapore (Murray-Aynsley CJ).

See CRIMINAL LAW, Vol 4, para 316.

332 Dangerous Drugs Ordinance (Singapore) -- ss 9, 10(2)

4 [332] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 9, 10(2) – Possession of prepared opium – Possession of smoking utensils – Statutory presumptions – 'Custody', 'control' and 'possession'

Digest :

Neo Koon Cheo v R [1959] MLJ 47 High Court, Singapore (Ambrose J).

See CRIMINAL LAW, Vol 4, para 321.

333 Dangerous Drugs Ordinance (Singapore) -- ss 9, 37

4 [333] CRIMINAL LAW Dangerous Drugs Ordinance (Singapore) – ss 9, 37 – Possession of prepared opium – Meaning of 'possession' – Rebuttal of statutory presumption – Bare carrier – Dangerous Drugs Ordinance 1951, ss 9 & 37 – Possession of prepared opium – Presumption arising from custody or control – Presumption may be rebutted by circumstances appearing in the prosecution evidence.

Summary :

This was an appeal from the conviction of the appellant on a charge of possession of prepared opium. The facts were that the police, apparently acting on information received, raided a coffee shop and in a drawer of the counter found a cigarette tin containing nine small packets of prepared opium. They arrested the shopkeeper, the appellant. The police did not find any pipe or other utensil. The drawer was not locked; it contained about 15 small books, in which sales to credit customers were entered and other articles indicating that the appellant and his assistants all had access to the drawer. The learned magistrate convicted the appellant of possession of the opium.

Holding :

Held: (1) on the fact, the learned magistrate was wrong in holding that the assistants did not have access to the drawer; (2) the facts showed that the appellant and his assistants had joint control of the drawer in which the tin of opium was found; (3) the circumstances of the case, including the fact that the quantity of opium was small, show possession by one person and are equally consistent with the possession being that of one of the assistants; (4) therefore, the presumption under s 37 of the Dangerous Drugs Ordinance 1951 did not operate in this case, so as to make the appellant guilty of possession of prepared opium. The meaning of 'possession' expounded and discussed; (5) (semble) (1) the characteristics of 'possession' stated in Toh Ah Loh & Mak Thim v R [1949] MLJ 54 do not apply, without qualification, to the Dangerous Drugs Ordinance; (6) (semble) the presumptions against a person accused under the Dangerous Drugs Ordinance do not necessarily require rebuttal by defence evidence. They may be rebutted by circumstances appearing in the prosecution evidence; (7) (semble) the inferences to be drawn from control and custody depend, in part, on whether the quantity is suggestive of trafficking or of individual consumption; (8) (semble) a bare carrier does not have possession but if he has knowledge that the goods carried include opium, he may be convicted of abetment of possession.

Digest :

Leow Nghee Lim v R [1956] MLJ 28 High Court, Singapore (Taylor J).

334 Drug Dependants (Treatment and Rehabilitation) Act (Malaysia) -- s 4(1)(b)

4 [334] CRIMINAL LAW Drug Dependants (Treatment and Rehabilitation) Act (Malaysia) – s 4(1)(b) – Detention – Right of making representations – Criminal Law – Dangerous drugs – Treatment and rehabilitation – Order of detention – Right of representations – Validity of order – Drug Dependants (Treatment and Rehabilitation) Act 1983, ss 4(1)(b) & 6(1)(a).

Summary :

The applicant was produced before the magistrate at Port Dickson under s 4(1)(b) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 (Act 283) ('the Act'). He asked for bail and when he was produced again on 13 April 1987, the learned magistrate ordered the applicant to be detained for two years at Pusat Serenti, Tampin. The father of the applicant then applied to the High Court for the magistrate's order to be set aside on the grounds, inter alia, that the applicant was not represented by counsel at the hearing on 13 April 1987.

Holding :

Held, allowing the application: (1) even without reference to art 5(3) of the Federal Constitution, it is incumbent on the learned magistrate to give the applicant the opportunity of making representations; (2) there is no record that the applicant here was given that opportunity of making representations which is not the same as making appeals and pleas. Making representations means the right to protest which, by necessary implication and reading it in the context of art 5(3) of the Constitution, is a right to challenge whatever is being brought against him. On this ground alone, the order of the learned magistrate made under s 6(1)(a) of the Act is invalid.

Digest :

Hoo Thian Siang v Public Prosecutor [1988] 2 MLJ 401 High Court, Seremban (Mustapha Hussain J).

335 Drug Dependants (Treatment and Rehabilitation) Act (Malaysia) -- s 6(1)(a)

4 [335] CRIMINAL LAW Drug Dependants (Treatment and Rehabilitation) Act (Malaysia) – s 6(1)(a) – Detention order – No notes of proceedings recorded by magistrate – Improper order – Order of detention made by magistrate under s 6 of the Drugs Dependants (Treatment and Rehabilitation) Act 1983 – No notes of proceedings recorded – Whether magistrate had complied with requirements of law – Drug Dependants (Treatment and Rehabilitiation) Act 1983, s 6 – Federal Constitution, arts 5 & 151(1)(a).

Summary :

The detainee had been detained by an order of the learned magistrate under s 6 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 (Act 283) ('the Act'). The detainee had been arrested by the police on suspicion of being a drug dependant and had been taken to the General Hospital where he was examined by a medical officer. The learned magistrate subsequently ordered him to be detained under s 6(1)(a) of the Act. It was contended in this case that the learned magistrate had not complied with the mandatory provisions of the Act in that she had failed to make any record on whether she had complied with the various subsections of s 6, namely, sub-ss (1), (3), (4) and (5).

Holding :

Held: in this case, in the absence of the record of proceedings kept by the learned magistrate, it was impossible to hold that the mandatory requirements of the law had been complied with and therefore the application must be granted and a writ of habeas corpus issued.

Digest :

Re Roshidi bin Mohamed [1988] 2 MLJ 193 High Court, Kangar (Mohamed Arif J).

Annotation :

[Annotation: The appeal to the Supreme Court was heard by Lee Hun Hoe CJ (Borneo), Wan Suleiman and Wan Hamzah SCJJ, and dismissed on 12 October 1987.]

336 Drug Trafficking (Confiscation of Benefits) Act (Singapore) -- Consfication order

4 [336] CRIMINAL LAW Drug Trafficking (Confiscation of Benefits) Act (Singapore) – Consfication order – Apportionment – Whether sufficient basis for apportionment to be made – Whether apportionment material

Summary :

The appellant was arrested while in possession of 18 sachets of heroin containing 12.14g of heroin. He admitted that the drugs were his. The appellant's urine sample tested positive for heroin consumption. However, at no time in custody did the appellant make any complaint that he suffered from heroin withdrawal. The appellant's defence was that the drugs were for his own consumption and that at the time of his arrest he consumed between one and two sachets of heroin a day. The prosecution's expert witness opined that the appellant was a mild addict. The district judge convicted the appellant. He also made a confiscation order for S$142,184.59 under the Drug Trafficking (Confiscation of Benefits) Act (Cap 84A, 1993 Ed) (DTA) against the appellant. The prosecution alleged the appellant derived benefits amounting to S$142,184.59 from drug trafficking. In arriving at this figure, the appellant's drug consumption expenses based on the appellant's alleged rate of consumption was taken into account. The value of the appellant's realisable assets was S$77,876.63. The district judge ordered a default sentence for the balance. On appeal, it was argued that the district judge ought to have made an apportionment of the drugs. The appellant also appealed against the confiscation order.

Holding :

Held, dismissing the appeal against conviction but allowing the appeal against the confiscation order in part: (1) on the facts, there was some credible evidence upon which an apportionment could have been made. However, any apportionment in this case would not have been material; (2) the defence required the appellant's long statement only for the purpose of showing consistency. The application was made when a prosecution witness was being cross-examined. The district judge was entitled to refuse the application at this stage. As no fresh application was made again after the appellant had given evidence, the appellant had no cause for complaint; (3) on the facts, there was no basis for the court to disagree with the district judge's finding that the appellant's income was not from illegal bookmaking activities; (4) the appellant's figure for his rate of consumption had already been rejected by the district judge when he convicted the appellant of trafficking. It would have been incongruous and contradictory, therefore, that they should have been relied on when computing the appellant's hidden income. On the facts, a fairer estimation of the amount of benefits derived from trafficking should not have exceeded S$116,844.59; (5) the amount recoverable under a confiscation order could not be more than the realisable amount as defined in s 8 of the DTA; (6) the default sentence should have been for the amount recoverable and not the balance. There should have been no default sentence for any balance sum. The balance was not recoverable unless an application under s 7(6) of the DTA by the prosecution was successful; (7) (per curiam) with regard to the admission of statements at trial, different considerations would have applied to statements made by other witnesses as opposed to statements made by the accused. The court could imagine situations where cross-examination might have been hampered without sight of the witness's statement.

Digest :

Png Chong Hua v Public Prosecutor [1997] 2 SLR 417 High Court, Singapore (Yong Pung How CJ).

337 Drug Trafficking (Confiscation of Benefits) Act (Singapore) -- ss 6, 7, 8 & 10

4 [337] CRIMINAL LAW Drug Trafficking (Confiscation of Benefits) Act (Singapore) – ss 6, 7, 8 & 10 – Confiscation of benefits – Calculation of benefits – Amount of benefits derived greater than realisable assets – Amount recoverable not more than realisable amount – Whether default sentence could be imposed on balance

See criminal law, para VIII [60].

Digest :

Png Chong Hua v Public Prosecutor [1997] 2 SLR 417 High Court, Singapore (Yong Pung How CJ).

338 Election Offences Act (Malaysia) -- s 10(e), (f), (g)

4 [338] CRIMINAL LAW Election Offences Act (Malaysia) – s 10(e), (f), (g) – Bribery by inducing electors to vote – Whether election void

Summary :

The petitioner who stood as an independent and polled second in the Sarawak State Election filed the petition to have the election declared void on the basis of bribery in the form of vote-buying and excessive spending by the respondents. The petitioner argued that (i) RM10 notes were distributed to the voters when they attended a function organized by the respondents; (ii) the distribution of the money was in connection with the election; (iii) the money was given to the voters with the intention of geting the voters to vote for the respondent; and (iv) those acts had extensively prevailed so as to affect the result of the election. Photographs showing the repondents distributing money at people at the function, were tendered as exhibits. A further issue which arose was in relation to the statndard of proof of the allegation of bribery.

Holding :

Held, declaring the election void: (1) the allegation of bribery was an allegation of a criminal offence and hence, proof had to be beyond reasonable doubt; (2) based on the facts and evidence, bribery had been established within the meaning of s 10(e) and (f) of the Election Offences Act 1954; (3) since a sizeable number of people at the function were bribed, that was sufficient to constitute extensive prevalence which affected the result of the election; (4) since the election of the respondents was affected by extensively prevalent bribery, the said election had to be declared void; (5) there was however no evidence to show that there was excessive expenditure by the respondents.

Digest :

Donald Lawan V Abang Wahed bin Abang Muzi & Ors Election Petition No 26-01-96-1 (SG).

339 Election Offences Act (Malaysia) -- ss 10(a), 11(1)

4 [339] CRIMINAL LAW Election Offences Act (Malaysia) – ss 10(a), 11(1) – Bribery by inducing electors to vote – Intention must be proved – Unnecessary to prove inducement to vote for a certain political party – Sentence – Bribery – Inducing electors to vote – Appeal against conviction and sentence – Fine enhanced – Election Offences Act 1954, ss 10(a) & 11(1).

Summary :

The appellant was charged on three counts of giving cash RM5 to each of the three electors on 19 September 1979 in order to induce them to vote and thereby committed offences under s 10(a) of the Election Offences Act 1954 (Act 5), punishable under s 11(1) thereunder. The learned magistrate convicted him of all the charges and sentenced him to five days' imprisonment and RM100 fine in default two weeks' imprisonment under each offence. The imprisonment sentences were to run consecutively. The appellant appealed.

Holding :

Held: (1) the offence of corrupt practice may, in law, be committed irrespective of whether the person, who is otherwise liable, is or is not an agent for any political party or election candidate; (2) what is material therefore is the intention of the giver of the money, not that of the elector who was given the money; (3) it is unnecessary to prove inducement to vote for a certain political party. It is sufficient if it is proved that money was given in order to induce the elector to vote; (4) in determining whether there had been bribery, the court will always look to the essence of the transaction whether the act was done with a view to influencing a voter in relation to his vote. The intention of a person against whom a charge of bribery is made must be proved and this may be established from his acts and other circumstances of the case; (5) the appellant had not shown how the learned trial magistrate failed to give any or any proper or adequate consideration to the defence of the case or how the verdict was unreasonable or unsatisfactory or could not be supported as alleged; (6) the appeal against conviction was dismissed. The sentences were varied: the imprisonment sentences were to be made concurrent and the fine under each offence was increased from RM100 to RM250. In default of payment of the sum of $150 being the increased amount under each offence, the appellant was to be imprisoned for two weeks.

Digest :

Abu Seman v Public Prosecutor [1982] 2 MLJ 338 High Court, Sibu (Chong Siew Fai J).

340 Election Offences Ordinance (Malaysia) -- s 10(a)

4 [340] CRIMINAL LAW Election Offences Ordinance (Malaysia) – s 10(a) – Bribery and corruption – Promise to pay RM1,000 for charity for use within constituency – Whether a corrupt practice – Elections – Petition to declare election void – Election Offences Ordinance 1954, s 10(a) – Promise to pay $1,000 for charity for use within constituency if elected – Whether a corrupt practice.

Summary :

Section 10(a) of the Election Offences Ordinance 1954 reads: '... every person who... promises... any money... for any elector or voter in order to induce any elector or voter to vote shall be deemed guilty of the offence of bribery.'

Holding :

Held: a general promise to give RM1,000 a month for the purpose of charity or welfare within the constituency constitutes an infringement of the section.

Digest :

Koh Yin Chye v Leong Kee Nyean [1961] MLJ 67 High Court, Ipoh (Smith J).

341 Emergency (Essential Powers) Ordinance (Malaysia) -- s 2(1)

4 [341] CRIMINAL LAW Emergency (Essential Powers) Ordinance (Malaysia) – s 2(1) – Corrupt practice – Accused using his public office for pecuniary or other advantage – Whether accused a public officer – Meaning of 'corrupt practice' – Prevention of Corruption Act 1961 (Act 57), s 2 – National Tobacco Board (Incorporation) Act 1973 (Act III), ss 4 & 11

Summary :

D was charged in the sessions court with committing corrupt practice, an offence punishable under s 2(1) of the Emergency (Essential Powers) Ordinance 1970. D, a member of the National Tobacco Board ('the board') at the material time was alleged to have used his public position for his pecuniary advantage in that he participated at a meeting of the board, a public body, held on 10 November 1970 wherein a decision was taken to award a contract for the supply of 39,722 bags of fertilizer to M Bhd, of which he was the chairman and shareholder. At the close of the prosecution's case, the charge was amended by the learned President of the sessions court. D claimed trial to the amended charge and was convicted and sentenced to one day imprisonment and a fine of RM2,000 in default six months' imprisonment. A appealed against the sentence passed by the learned President. D appealed against his conviction and sentence.

Holding :

Held, setting aside the order of the learned President: (1) in the instant case, D was a public officer within the meaning of s 2(1) of the Emergency (Essential Powers) Ordinance 1970 when he was a member of the board. The duties of the board listed in s 11 of the National Tobacco Board (Incorporation) Act 1973 are public duties and as a member of the board, D discharged his duty which the public were interested. Furthermore, D was given remuneration as a member of the board; (2) in the instant case, D committed corrupt practice while being a member of the board. The learned judge was of the opinion that the fact that D was present at the meeting of the board held on 10 November 1979 was sufficient in the circumstances for him to be regarded in law to have used his public position or office for his pecuniary or other advantage. It was immaterial that the contract for the supply of the bags of fertilizer was given to M Bhd, a separate legal entity, as whatever benefits the company got from the decision of the board would certainly benefit D. The prosecution had accordingly established a prima facie case against D in respect of the original charge; (3) it was wrong for the learned President to have amended the charge as the amended charge was in respect of the meeting of the board held on 27 February 1980 at which no further decision was made whereby D used his public position for his pecuniary advantage. In the circumstances, the learned judge set aside the order of the learned President and ordered that the case be sent back to the learned President and ordered that the defence be called in respect of the original charge.

Digest :

Public Prosecutor v Arrifin bin Salleh Federal Territory Criminal Appeal No 52-44-86 High Court, Kuala Lumpur (Zakaria Yatim J).

342 Emergency (Essential Powers) Ordinance (Malaysia) -- s 2(1)

4 [342] CRIMINAL LAW Emergency (Essential Powers) Ordinance (Malaysia) – s 2(1) – Corruption in approval of plans – 'Public officer' – Whether Commissioner of the Malacca Municipality a 'public officer' within Prevention of Corruption Act 1961 (Act 57)

Summary :

The accused was charged for failing to attend Rukun Tetangga duties without reasonable cause, an offence under s 31(1)(e), punishable under s 44 of the Emergency (Essential Powers) Ordinance 1969. He pleaded guilty to all charges and was sentenced. All that was recorded after the charges were read and explained to the accused, who understood the nature of the charge and the consequences of the plea, were 'Facts as per charge.' Thereafter was the 'plea in mitigation' before the sentence. The High Court called for the record and acted in revision.

Holding :

Held, setting aside the sentence on all four charges: (1) the trial was a nullity. The accused had pleaded guilty to improper charges. He should have been charged for an offence under reg 31(1)(e) of the Essential (Community Self-Reliance) Regulations 1975 and punishable under reg 44 of the same regulations; (2) the learned magistrate had failed to record the facts of the case which he should have done on a plea of guilty. This was necessary in order to ascertain whether the accused, especially if he was not represented by counsel, had understood the charge or charges preferred against him and that he really intended to plead guilty; (3) the learned magistrate had failed to put on record a conviction against the accused in all the four charges.

Digest :

Public Prosecutor v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah Ag CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 1856.

343 Emergency (Essential Powers) Ordinance (Malaysia) -- s 2(1)

4 [343] CRIMINAL LAW Emergency (Essential Powers) Ordinance (Malaysia) – s 2(1) – Corruption in approval of plans – Mens rea – Charge of corruption – Corrupt practice in approval of plans – Accused called to enter on their defence – Whether there was mens rea – Doing of an act forbidden by statute – Necessity not shown – Whether accused had rebutted prosecution case – Sentence – Municipal Ordinance (SS Cap 133), s 43(1) – Emergency (Essential Powers) Ordinance 1970, s 2 – Prevention of Corruption Act 1961, s 2.

Summary :

In this case, the first accused was the Commissioner of the Malacca Municipality and also the executive chairman and shareholder of a housing development concern, Almac. Almac had submitted a layout plan and two sets of building plans for the approval of the municipal council and the plans were passed by the first accused. He was charged that in approving the plans, he had used his public office for his pecuniary advantage and had thereby committed offences against s 2(1) of the Emergency (Essential Powers) Ordinance 1970. The second accused was charged with abetment of the offence on the two occasions when he sat in the committee. At the trial, the learned trial judge, at the close of the prosecution case, held that of the two essential ingredients of the offence against the first accused, the prosecution had established his guilty mind but not that he was a public officer. He therefore acquitted and discharged the accused ([1979] 1 MLJ 166). On appeal by the Public Prosecutor, the Federal Court held that on a proper construction, the first accused was a public officer within the meaning of s 2 of the Prevention of Corruption Act 1961 (Act 57), and sent the case back to the High Court with the order to call for the defence ([1979] 1 MLJ 174). At the continuation of the trial, the issue before the High Court was whether the defence had adduced sufficient evidence from which the court could hold that there was no guilty mind or that a doubt had been cast on the prosecution's evidence of the state of mind. The learned trial judge in his judgment considered the ruling of the Federal Court on the issue of whether the first accused was a public officer. He expressed the view that the Federal Court was wrong but said that he would nevertheless not disregard the decision of the superior court. He held that the prosecution had failed to prove beyond a reasonable doubt that the first accused approved the plans with an ulterior motive or that he abused his position as commissioner for his own pecuniary or other advantage. He therefore acquitted both the accused ([1980] 1 MLJ 117). The Public Prosecutor appealed.

Holding :

Held: (1) it is necessary to reaffirm the doctrine of stare decisis which the Federal Court accepts unreservedly and which it expects the High Court and other inferior courts in a common law system such as ours, to follow similarly. The doctrine of stare decisis requires more than lip service; (2) in this case, at no time did the first accused or the second accused ever declare their interests in Almac. They were therefore in breach of the statutory provisions of s 43(1) of the Municipal Ordinance (SS Cap 133), and the doing of the act forbidden by statute supplied the mens rea; (3) the accused were actively engaged in the development of the housing estate and this clearly showed that they knew that Almac's plans would be submitted for approval. There was evidence of purposiveness and haste in the approval of the plans which further established the knowledge of the accused; (4) no occasion arose for the first accused to act ex necessitate or to fear an action in law; (5) the offences in this case, were serious but in view of the circumstances of the case, the sentences imposed would be RM2,000 on each charge on the first accused and RM1,000 on each charge on the second accused.

Digest :

Public Prosecutor v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 276 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

344 Emergency (Essential Powers) Ordinance (Malaysia) -- s 2

4 [344] CRIMINAL LAW Emergency (Essential Powers) Ordinance (Malaysia) – s 2 – Corruption in approval of plans – Mens rea not established – 'Public officer'

Digest :

Public Prosecutor v Datuk Tan Cheng Swee & Ors [1980] 1 MLJ 117 High Court, Malacca (Ajaib Singh J).

See CRIMINAL LAW, Vol 4, para 1855.

Annotation :

[Annotation: See the Federal Court's decision at [1980] 2 MLJ 276.]

345 Emergency (Essential Powers) Ordinance (Malaysia) -- ss 31(1)(e), 44

4 [345] CRIMINAL LAW Emergency (Essential Powers) Ordinance (Malaysia) – ss 31(1)(e), 44 – Failure to attend to Rukun Tetangga duties without reasonable cause – Plea of guilty – Improper charges – Trial a nullity – Rukun Tetangga – Failure to attend to Rukun Tetangga duties without reasonable cause – Improper charges – Plea of guilt – Failure of magistrate to record facts of the case and conviction – Trial a nullity – Emergency (Essential Powers) Ordinance 1969, ss 31(1)(e), 44 – Essential (Community Self-Reliance) Regulations 1975, regs 31(1)(e) & 44 – Criminal Procedure (FMS Cap 6), s 176.

Summary :

The accused was charged for failing to attend Rukun Tetangga duties without reasonable cause, an offence under s 31(1)(e), punishable under s 44 of the Emergency (Essential Powers) Ordinance 1969. He pleaded guilty to all charges and was sentenced. All that was recorded after the charges were read and explained to the accused, who understood the nature of the charge and the consequences of the plea, were 'Facts as per charge.' Thereafter was the 'plea in mitigation' before the sentence. The High Court called for the record and acted in revision.

Holding :

Held, setting aside the sentence on all four charges: (1) the trial was a nullity. The accused had pleaded guilty to improper charges. He should have been charged for an offence under reg 31(1)(e) of the Essential (Community Self-Reliance) Regulations 1975 and punishable under reg 44 of the same regulations; (2) the learned magistrate had failed to record the facts of the case which he should have done on a plea of guilty. This was necessary in order to ascertain whether the accused, especially if he was not represented by counsel, had understood the charge or charges preferred against him and that he really intended to plead guilty; (3) the learned magistrate had failed to put on record a conviction against the accused in all the four charges.

Digest :

Public Prosecutor v Abdul Aziz [1978] 2 MLJ 155 High Court, Alor Star (Syed Agil Barakbah J).

346 Emergency (Public Order and Prevention of Crime) Ordinance (Malaysia) -- s 4(1)

4 [346] CRIMINAL LAW Emergency (Public Order and Prevention of Crime) Ordinance (Malaysia) – s 4(1) – Detention for drug trafficking – Detention within scope and ambit of the Ordinance – Detention under Emergency (Public Order and Prevention of Crime) Ordinance 1969 – Trafficking in drugs as member of international drug distribution syndicate – Whether order for detention within scope and ambit of ordinance – Meaning of 'public order' – Emergency (Public Order and Prevention of Crime) Ordinance 1969.

Summary :

These three appeals from the decisions of the High Court reported in [1976] 2 MLJ 83 and [1976] 2 MLJ 133 were heard together and raise the question whether a person suspected of being engaged in drug trafficking may lawfully be detained under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The sole question on the appeals was whether the grounds on which the orders for detention were made were outside the scope and ambit of the ordinance.

Holding :

Held, dismissing the appeal: the grounds on which the orders of detention were made against the appellants, namely trafficking in drugs, was within the scope and ambit of the Emergency (Public Order and Prevention of Crime) Ordinance 1969, and therefore the applications of the appellants were rightly dismissed.

Digest :

Re Application of Tan Boon Liat & Ors; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors and other actions [1977] 2 MLJ 18 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

347 Emergency (Public Order and Prevention of Crime) Ordinance (Malaysia) -- ss 3, 4, 12

4 [347] CRIMINAL LAW Emergency (Public Order and Prevention of Crime) Ordinance (Malaysia) – ss 3, 4, 12 – Detention for alleged involvement in secret society activities – Whether detention legal – Detention under Emergency (Public Order and Prevention of Crime) Ordinance 1969 – Order of detention authorizing detention at Pulau Jerejak Rehabilitation Centre – Person detained at Muar police station before removal to Pulau Jerejak – Whether detention legal – Habeas corpus issued – Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss 3, 4 & 12.

Summary :

In this case, the respondent was first arrested by the police on 1 October 1986 for alleged involvement in secret society activities. He was remanded in custody on an order by a magistrate for 14 days and released on 14 October 1986. On the same date, he was re-arrested and detained under s 3 of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. He was detained in police custody for a period of 60 days as allowed by s 3 of the ordinance. The period of 60 days expired on 13 December 1986. He was however detained in the Muar police station until sometime in the morning of 16 December 1986, when he was removed to the Pulau Jerejak Rehabilitation Centre pursuant to a detention order made by the Deputy Minister of Home Affairs, pursuant to s 4(1) of the ordinance. The order was to take effect from 12 December 1986 and a copy of the order was served on the respondent on 14 December 1986. The order clearly stated that the respondent was to be detained at the Pulau Jerejak Rehabilitation Centre. On an application for habeas corpus, the learned trial judge held that the respondent's detention at Muar police station from 14 December 1986 until 16 December 1986 was unauthorized and illegal. He therefore made an order granting habeas corpus to the respondent. (See [1988] 1 MLJ 45.) The appellant appealed.

Holding :

Held, dismissing the appeal: (1) in the present case, the language of the detention order is clear and unambiguous. According to the detention order, the respondent was to be detained at the Pulau Jerejak Rehabilitation Centre and nowhere else; (2) the learned trial judge was correct in holding that for the period 14 December 1986 until the morning of 16 December 1986, the respondent could not be said to be in lawful custody or detention. In the circumstances, the continued detention of the respondent should not be allowed.

Digest :

Public Prosecutor v Koh Yoke Koon [1988] 2 MLJ 301 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

348 Emergency (Public Order and Prevention of Crime) Ordinance (Malaysia) -- ss 4(1), 5(2)

4 [348] CRIMINAL LAW Emergency (Public Order and Prevention of Crime) Ordinance (Malaysia) – ss 4(1), 5(2) – Detention for drug trafficking – Grounds on which order made – Whether drug trafficking within purview of Ordinance – 'Public order' – Dangerous drugs – Trafficking in drug as a member of an international drug distribution syndicate.

Summary :

The applicant had been served with a detention order by the Minister of Home Affairs, the grounds being in effect that he was trafficking in drugs as a member of an international drug distribution syndicate. The applicant applied for a writ of habeas corpus and challenged the validity of the order of detention on the contention that the grounds on which the order was made was dehors the purview and ambit of the ordinance. It was argued that the scope of the ordinance was limited and that it applied and was intended to apply only for the purposes of suppressing activities involving violence and preventing crimes of violence. Reliance was placed on the preamble to the ordinance. Section 4(1) of the Emergency (Public Order and Prevention of Crime Ordinance) empowers the minister to make a detention order if he is satisfied that it is necessary to do so with a view to preventing any person from acting in any manner prejudicial to public order or where it is necessary for the suppression of violence or the prevention of crimes involving violence.

Holding :

Held, dismissing the application: (1) where the enacting words of the section are clear, the preamble cannot operate to restrict that meaning. The preamble cannot be invoked for the purpose of creating ambiguity in a statute; (2) it is abundantly clear that trafficking in drugs as a member of an international drug distribution syndicate, which was the ground on which the order of detention against the applicant was made, strikes at the very core of public order, and any person indulging in such activities must necessarily be acting in a manner prejudicial to public order.

Digest :

Re Application of Tan Boon Liat @ Allen; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 2 MLJ 83 High Court, Ipoh (Abdoolcader J).

349 Emergency (Rubber Control) Regulations (Malaysia) -- reg 4(1)

4 [349] CRIMINAL LAW Emergency (Rubber Control) Regulations (Malaysia) – reg 4(1) – Recent possession of stolen property – Explanation given by accused – Principle to be applied in possession cases

Summary :

Where the only evidence against the accused is that he was in unlawful possession of property, the court may infer guilty knowledge (a) if the accused has offered no explanation or (b) if it is satisfied that any explanation offered is untrue; but if the explanation offered leaves the court in doubt as to whether it is true or not, the case has not been proved and the proper verdict should be not guilty.

Digest :

Tan You v Public Prosecutor [1951] MLJ 218 High Court, Malacca (Abbott J).

350 Emergency Regulations (Malaysia) -- reg 4(1)(a)

4 [350] CRIMINAL LAW Emergency Regulations (Malaysia) – reg 4(1)(a) – Possession of firearms – Defence of duress – Duress must be imminent, extreme and persistent – Emergency Regulations 1948, s 4(1)(a) – Possession of firearm – Defence of duress – Penal Code, s 94.

Summary :

The appellant was convicted under reg 4(1)(a) of the Emergency Regulations 1948 for being in possession of a firearm, to wit, a revolver. In giving their opinions, the assessors added a rider that the appellant had acted under duress. The learned trial judge subsequently directed the assessors on the law relating to duress. On appeal, it was contended that the learned trial judge had erred in directing the assessors that only fear of immediate death would be a sufficient excuse.

Holding :

Held: the learned trial judge was correct in his direction, as duress to be pleaded successfully must be imminent, extreme and persistent.

Digest :

Tan Seng Ann v Public Prosecutor [1949] MLJ 87 Court of Appeal, Kuala Lumpur (Willan CJ, Callow and Russell JJ).

351 Emergency Regulations (Malaysia) -- reg 4(1)(a)

4 [351] CRIMINAL LAW Emergency Regulations (Malaysia) – reg 4(1)(a) – Possession of firearms – Defence of duress under s 94 of the Penal Code applies to offences under the Emergency Regulations

Digest :

Lim Ah Tong v Public Prosecutor [194849] MLJ Supp 158 Court of Appeal, Kuala Lumpur (Spenser-Wilkinson, Russell and Briggs JJ).

See CRIMINAL LAW, Vol 4, para 779.

352 Emergency Regulations (Malaysia) -- reg 4(1)(b)

4 [352] CRIMINAL LAW Emergency Regulations (Malaysia) – reg 4(1)(b) – Possession of ammunition – Meaning of possession – Alleged possession in five different places contained in one charge – Emergency Regulations 1948, reg 4(1)(b) – Possession of ammunition – Alleged possession in five different places contained in one charge – Whether irregular – Corroboration – Burden of proof.

Summary :

This appeal raises, inter alia, one important point, namely, whether the charge which alleged possession of a hand grenade at five different places over a period exceeding 12 months was bad.

Holding :

Held: (1) possession is of its nature continuous, and so long as the appellant continued to be in possession, the offence was continuing. It was open to the prosecution to charge a continuous act of possession over a period of time. The particulars of the places where possession would be proved could well have been omitted from the charge, but since the charge alleged one continuous offence, there is no irregularity; (2) (per Murray-Aynsley CJ, dissenting) if the words of the charge are to be given their natural meaning, five distinct acts of possession are alleged, not one act of continuous possession. This is bad on two grounds: the number of the acts and the time over which they are distributed. The court is not entitled to consider what in point of fact was proved at the trial, still less what the prosecution announced its intention of proving.

Digest :

Lee Teng Tai v Public Prosecutor [1953] MLJ 2 Court of Appeal, Kuala Lumpur (Mathew CJ (FM).

Annotation :

[Annotation: For a case in which the Court of Appeal held that where the appellant was not proved to have exclusive control of the places in which the arms and ammunition were found the conviction must be quashed, see Tai Chai Keh v Public Prosecutor [1948-49] MLJ Supp 105.]

353 Emergency Regulations (Malaysia) -- reg 4(1)

4 [353] CRIMINAL LAW Emergency Regulations (Malaysia) – reg 4(1) – Possession of firearms, ammunition and explosives – Common intention

Digest :

Lee Yoon Choy v Public Prosecutor [1948-49] MLJ Supp 167 Court of Appeal, Kuala Lumpur (Willan CJ, Spenser-Wilkinson and Russell JJ).

See CRIMINAL LAW, Vol 4, para 712.

354 Emergency Regulations (Malaysia) -- reg 4(2A)

4 [354] CRIMINAL LAW Emergency Regulations (Malaysia) – reg 4(2A) – Possession of ammunition – Defence of 'lawful excuse' – Defences under the Penal Code

Summary :

The appellant was arrested in Johore by members of the security forces operating against terrorists. At his trial on a charge of being in possession of ammunition contrary to the Malayan Emergency Regulations 1951, he put forward the defence that he had been captured by terrorists and was acting under duress. He sought to give evidence of what the terrorists had said to him but the trial judge ruled that the evidence was inadmissible unless they were called. The appellant was convicted. On appeal,

Holding :

Held: evidence of a statement made to a witness by a person who was not himself called as a witness was not hearsay and was admissible when it was proposed to establish by evidence, not the truth of the statement, but the fact that it was made; statements could have been made to the appellant by the terrorists which, whether true or not, if they had been believed by the appellant might have induced in him an apprehension of death such as to provide a defence under the Malayan Penal Code; accordingly, the evidence should have been admitted and the appeal would be allowed.

Digest :

Subramaniam v Public Prosecutor [1956] MLJ 220 Privy Council Appeal from the Federation of Malaya (Lord Radcliffe, Lord Tucker and Mr LMD de Silva).

355 Emergency Regulations (Malaysia) -- reg 4(2A)

4 [355] CRIMINAL LAW Emergency Regulations (Malaysia) – reg 4(2A) – Possession of ammunition – Various defences in General Exceptions of the Penal Code not excluded

Digest :

Public Prosecutor v Chin Kiang Yin [1956] MLJ 217 High Court, Ipoh (Thomson J).

See CRIMINAL LAW, Vol 4, para 760.

356 Emergency Regulations (Malaysia) -- reg 4

4 [356] CRIMINAL LAW Emergency Regulations (Malaysia) – reg 4 – Possession of firearms – 'Joint possession' – No common intention

Digest :

Kong Wai & Anor v Public Prosecutor [1948-49] MLJ Supp 170 Court of Appeal, Kuala Lumpur (Willan CJ, Spenser-Wilkinson and Russell JJ).

See CRIMINAL LAW, Vol 4, para 704.

357 Emergency Regulations (Malaysia) -- reg 5

4 [357] CRIMINAL LAW Emergency Regulations (Malaysia) – reg 5 – Consorting with a person in possession of firearms and explosives – Common intention – Joint possession of firearms

Digest :

Lee Yoon Choy v Public Prosecutor [1948-49] MLJ Supp 167 Court of Appeal, Kuala Lumpur (Willan CJ, Spenser-Wilkinson and Russell JJ).

See CRIMINAL LAW, Vol 3, para 949.

358 Employment of Foreign Workers Act (Singapore) -- s 5

4 [358] CRIMINAL LAW Employment of Foreign Workers Act (Singapore) – s 5 – Employment of foreign workers without valid work permit – Workers employed on trial basis – No mention of payment – Whether respondent employed workers – Whether respondent should have been called on for defence at close of prosecution case

Summary :

The respondent was prosecuted in the subordinate courts under s 5 (1) of the Employment of Foreign Workers Act (Cap 91A) on two charges of employing foreign workers during the period 7 March 1992 to 12 March 1992, without having first obtained valid work permits for them. Both foreign workers were Malaysian and were discovered on the premises of the respondent's hairdressing salon on 12 March 1992 during a raid by officials from the Ministry of Labour ('the MOL'). In the course of their testimony in the court below, both the Malaysians confirmed that they had worked at the respondent's hair salon for the period of time alleged in the charges, the work in question being the provision of hairdressing cum cleaning services between the hours of 9.30am and 7.30pm daily. Whilst working at the said salon, they had received free accommodation and meals from the respondent, but neither of them had yet been paid any money up to the time of the MOL raid on 12 March 1992. Furthermore, both women had been told by the respondent that there existed only one vacancy for the permanent position of hairdresser at her salon and that they would have to work for a trial period of some one to two weeks before the respondent made up her mind as to the more suitable 'candidate'. Throughout the relevant period (ie 7 March 1992 to 12 March 1992) the respondent was aware of the nationality of the two women, having been duly informed from the outset. Indeed she had told them that she would apply for a work permit in respect of the 'candidate' she eventually chose. At the close of the prosecution case, it was submitted by counsel for the respondent below that since both PW1 and PW2 had only been 'trying out' for the same vacancy and since neither of them had received any remuneration during their period of work at Sweeney Le Saloon, the respondent could not be said to have 'employed' them in the sense given to that term under s 2 of the Immigration Act (Cap 133) (there being no definition of the term in the Employment of Foreign Workers Act itself). The submission was accepted by the district judge who acquitted the respondent without calling for her defence. The prosecution appealed against that order of acquittal.

Holding :

Held, allowing the appeal: (1) one of the employment inspectors from the ministry who had conducted the raid, testified that when the MOL inspectors arrived at the respondent's salon, one of the Malaysians had opened the door for the inspectors when they came to the salon. She had further testified that she had been providing hairdressing and cleaning services at the salon from 7 March 1992 up to the day of the raid itself. Plainly, therefore, the inference to be drawn from the evidence was that she had been found working on the premises. The other Malaysian for her part had also clearly been found working there. She had been in the act of assisting another hairdresser in the perming of a customer's hair when the MOL inspectors made their appearance; (2) under s 189(1) of the Criminal Procedure Code (Cap 68), at the conclusion of the case for the prosecution, the trial court may record an order of acquittal only if it finds that 'no case against the accused has been made out which if unrebutted would warrant his conviction'. All that is required of the prosecution at the stage it concludes its case is the adduction of some evidence (not inherently incredible) which, if the trial judge were to accept as accurate, would establish each essential element in the alleged offence. In the context of the present case, this required the prosecution to produce some credible evidence at the close of its case of the respondent's having employed the two Malaysians; (3) in this task, the prosecution was aided by the provision made in s 6 of the Employment of Foreign Workers Act for a presumption of employment vis-a-vis persons found working on the premises. There was reliable evidence that the two Malaysians had been found working on the premises of the respondent's salon. The presumption of employment in s 6 therefore sprang into operation against the respondent and the burden shifted onto her at that juncture to rebut the presumption by adducing evidence to the contrary. The evidence as to non-payment could then perhaps have been adduced by her in her defence, or indeed any other evidence her counsel deemed fit to call. In any event, the fact remained that the prosecution had at the close of its case made out against the respondent a prima facie case.

Digest :

Public Prosecutor v Tham Kwai Lian [1995] 1 SLR 293 High Court, Singapore (Yong Pung How CJ).

359 Environmental Public Health Act (Singapore) -- s 20(1), 21(1)

4 [359] CRIMINAL LAW Environmental Public Health Act (Singapore) – s 20(1), 21(1) – Littering – Parking coupon tabs – Size and nature of objects discarded to be considered on sentencing – Sentence manifestly excessive

Summary :

A was charged with littering and fined S$400. He was accused of having thrown parking coupon tabs onto the ground. A denied that he was guilty of the offence. He alleged that the charge had been brought against him by the complainant, an engineer with the Ministry of Environment, after a dispute over a parking space.

Holding :

Held, allowing the appeal: (1) the trial judge found as a fact that A had thrown parking coupon tabs and the appellate court would not interfere with this finding; (2) however, the amount of litter was miniscule. In assessing the proper sentence to mete out in a case of littering, the size and nature of the objects discarded must be considered. To throw parking coupon tabs on the ground is one of the least serious of possible littering offences. It was manifestly excessive to impose a fine amounting to nearly half the maximum fine; (3) it was clear that A was defending himself as a matter of principle. Ordinarily, littering offences are compounded but for some reason no offer of composition was made to A. He had incurred considerable expense and inconvenience. This was an appropriate case for an order discharging A absolutely.

Digest :

Lee Ah Sin v Public Prosecutor Magistrate's Appeal No 89-91-01 High Court, Singapore (Rajendran J).

360 Environmental Public Health Act (Singapore) -- s 40

4 [360] CRIMINAL LAW Environmental Public Health Act (Singapore) – s 40 – Possession of food unfit for human consumption – Whether offence is one of strict liability

Summary :

On 9 November 1987, R was found in possession of a basket of snow peas which when tested was found to contain 38.34ppm of carbon disulphide. Evidence was led at R's trial that the permissible level of carbon disulphide in food was less than 5ppm. The peas in R's possession were unfit for human consumption. R claimed that he had imported the peas and that he would not sell the peas unless the health inspector had inspected them. R claimed that he had no intention of selling the peas if they were found to be unfit for human consumption. The district judge took the view that the there was absence of knowledge that the peas were contaminated and that they were intended for human consumption and acquitted R. The prosecution appealed.

Holding :

Held, allowing the appeal and convicting R: (1) there was a presumption that mens rea was required before a person could be held to be guilty of a criminal offence. This presumption could be displaced where the statute was concerned with the issue of social concern and public safety where it could be shown that the creation of strict liability would be effective to promote the objects of the statute; (2) on a literal reading of s 40 of the Environmental Public Health Act (Cap 95) ('the Act'), there was no word or phrase in it that suggested that the essence of the offence was that the person who had in his possession the article intended for human consumption should know or be aware that the article was unfit for such purpose; (3) public safety required that the vegetable importer should bear the consequence of importing food unfit for human consumption. The difficulties that an importer would face in ensuring that the vegetables are safe for human consumption were difficulties that the importer would have to live with and do his best to overcome; (4) the imposition of strict liability was in these sort of cases necessary for the protection of the public and that was what the legislature had intended when it enacted s 40; (5) there was no provision in the Act under which health officers were required or empowered to 'approve' articles of food as being fit for human consumption. The fact that the ministry did inspect vegetables imported did not exonerate the importer or other person selling food for human consumption from his obligation under s 40 of the Act to ensure that the food was fit for human consumption; (6) the offence was committed if R had in his possession any article of food intended for human consumption which was unfit for such purpose.

Digest :

Public Prosecutor v Teo Kwang Kiang [1992] 1 SLR 9 High Court, Singapore (Rajendran J).

361 Essential (Security Cases) Regulations (Malaysia) -- regs 21, 22

4 [361] CRIMINAL LAW Essential (Security Cases) Regulations (Malaysia) – regs 21, 22 – Murder – Whether the Attorney General's certificate could be challenged

Digest :

Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232 Federal Court, Kuala Lumpur (Raja Azlan Shah LP, Abdul Hamid and Abdoolcader FJJ).

See CRIMINAL LAW, Vol 4, para 729.

362 Excise Enactment (Malaysia) -- s 63

4 [362] CRIMINAL LAW Excise Enactment (Malaysia) – s 63 – Bribery – Offer of illegal gratification – Defective charge

Summary :

Held: a charge of bribery under s 63 of the Excise Enactment 1923, should state what was the bribe offered, who was the public servant to whom it was offered, and what was the duty to induce the neglect for which it was offered. But if these particulars come out in evidence, their omission may not be a ground for setting aside the conviction.

Digest :

Sanmugam v Public Prosecutor [1924] 4 FMSLR 190 High Court, Federated Malay States (Sir Lionel Woodward CJC).

363 Excise Ordinance (Straits Settlements) -- s 3

4 [363] CRIMINAL LAW Excise Ordinance (Straits Settlements) – s 3 – Possession of illicit chandu – Guilty knowledge necessary

Summary :

Being 'in possession of illicit chandu' under the Excise Ordinance IV of 1870, means possession with a guilty knowledge. Where it was shown that the appellant was a brothel keeper and lived in the brothel that some illicit chandu was found in a room of the house, which was occupied by one of the prostitutes, and when it was found, both he and the woman denied they smoked opium, which statement was proved to be false,

Holding :

Held: there was no evidence of guilty knowledge.

Digest :

Ong Ah Huat v Opium Farmer [1878] 3 Ky 100 High Court, Straits Settlements (Wood J).

364 Excise Ordinance (Straits Settlements) -- s 3

4 [364] CRIMINAL LAW Excise Ordinance (Straits Settlements) – s 3 – Possession of illicit chandu – Proof of custody or control – Illegal search

Summary :

Before a person can be convicted of 'knowingly being in possession of illicit chandoo', it must be shown affirmatively, by direct and reasonable evidence, that the place where the chandoo was found, was occupied by him, so that the things, in such place, must be under his control or custody. Therefore, where it was shown that certain chandoo was found hidden away in a room in which the prisoner was found at the time of the search, but it was not shown that he was the occupier of the room, but merely had access thereunto along with many others,

Holding :

Held: (1) there was not that direct and reasonable evidence of the chandoo being in his control or custody, and the conviction was quashed; (2) an illegal entry into a house, in search of illicit chandoo, although it might be the subject of an action, does not make the finding of any chandoo illegal, so as to render the 'possession' of such chandoo, no offence.

Digest :

Tek Wee v Opium Farmer [1881] 3 Ky 132 High Court, Straits Settlements (Wood J).

365 Excise Ordinance (Straits Settlements) -- s 5

4 [365] CRIMINAL LAW Excise Ordinance (Straits Settlements) – s 5 – Breaking bulk without fraud – Transit of opium – Forfeiture of contraband articles

Summary :

The appellant, having obtained a permit for conveying two chests of opium by certain specified boats to Kulim, in the Malayan territory, proceeded with the chests in such boats up to the mouth of the Kulim river. On arrival at Kulim river, he found that there was not sufficient water to permit these boats going up the river: he accordingly engaged smaller boats but these were too small to take in a single whole chest. The appellant accordingly, with the view of carrying on the transit of the opium to Kulim in these latter boats and without any fraudulent motive, broke the bulk, placed the 80 balls of each chest into gunny bags, and put them in the smaller boats.

Holding :

Held: he had committed an offence under s 5 of the Excise Ordinance IV of 1870, as amended by s 1 of Ordinance VI of 1879. The forfeiture of illicit or contraband articles on conviction of the offender is imperative on magistrates.

Digest :

Low Chu v Opium Farmer [1883] 3 Ky 156 High Court, Straits Settlements (Wood J).

366 Excise Ordinance (Straits Settlements) -- s 7(2)

4 [366] CRIMINAL LAW Excise Ordinance (Straits Settlements) – s 7(2) – Importation of chandu – Chandu found on ship – Whether 'Chinchew' or Nacodah 'deemed to have imported'

Summary :

Held: the 'Chinchew' or Nacodah of a ship on board of which illicit chandu is found in a box which is in no way shown to be his, is not to be 'deemed to have imported' the chandu within s 7(2) of the Excise Ordinance 1870 simply because he is the responsible person on board and the ownership of the box cannot be traced to any other persons.

Digest :

Ing Ah Meng v Opium Farmer [1890] 4 Ky 627 High Court, Straits Settlements (Wood J).

367 Excise Ordinance (Straits Settlements) -- s 84

4 [367] CRIMINAL LAW Excise Ordinance (Straits Settlements) – s 84 – Forfeiture of vehicle – Power of magistrate – Forfeiture of ship where illicit chandu found

Summary :

Held: a magistrate has no power under the Excise Ordinance IV of 1870 or VI of 1879, or IV of 1884, to order the forfeiture of a ship on board of which illicit chandu is found. The Supreme Court is the proper tribunal for making such order.

Digest :

Re SS 'Chi Yuen' [1884] 3 Ky 176 High Court, Straits Settlements (Ford Ag CJ).

Annotation :

[Annotation: This case is no longer law.]

368 Excise Ordinance (Straits Settlements) -- s 9

4 [368] CRIMINAL LAW Excise Ordinance (Straits Settlements) – s 9 – Possession of pills containing morphia – Medical practitioners

Summary :

Held: medical practitioners, in possession of pills containing morphia for medical purposes, are protected by s 19 of Excise Ordinance IV of 1870.

Digest :

R v Wee Kim Chuan [1890] 3 SLJ 9 Magistrate's Court, Straits Settlements (Mr Logan).

369 Export of Rubber (Restriction) Enactment (Malaysia) -- s 18

4 [369] CRIMINAL LAW Export of Rubber (Restriction) Enactment (Malaysia) – s 18 – Wilfully using a forged document – Meaning of 'wilfully' – Mens rea necessary – Mere negligence not enough

Summary :

Held: it must be proved that the accused wilfully used a forged document. 'Wilfully' is not defined but has been said to be the same as 'voluntarily'. It occurs in s 477A of the Penal Code in the phrase 'wilfully and with intent to defraud'. As defined in s 39, 'voluntarily' implies either actual intention, or knowledge, or reason to believe. A person cannot be said to wilfully use a counterfeit document unless there is some degree of mens rea. Probably actual knowledge is necessary, but at the least he must have reason to believe the document to be counterfeit. There was no evidence in this case to prove the existence of any mens rea at all. The learned magistrate found negligence, but there was no evidence to support that finding, and mere negligence, even if proved, would not be sufficient to justify a conviction under this section.

Digest :

Barbour v Public Prosecutor [1923] 4 FMSLR 264 High Court, Federated Malay States (Reay JC).

370 Federal Territory (Planning) Act (Malaysia) -- Carrying out development works on premises without a development order

4 [370] CRIMINAL LAW Federal Territory (Planning) Act (Malaysia) – Carrying out development works on premises without a development order – Whether accused ought to be found guilty for a continuing offence of not carrying out works in accordance with the approved plan – Federal Territory (Planning) Act 1982, ss 20 & 26

See criminal procedure, para VIII [70].

Digest :

Meow Loong Onn v Public Prosecutor [1997] 2 MLJ 612 High Court, Kuala Lumpur (KC Vohrah J).

371 Films Act (Singapore) -- ss 21, 29

4 [371] CRIMINAL LAW Films Act (Singapore) – ss 21, 29 – Possession of uncensored films – Uncensored videotapes – Meaning of 'film'

Summary :

A pleaded guilty to a charge of possession of 413 uncensored videotapes. He was fined S$100 per tape but as the maximum fine that could be imposed was S$20,000, he was fined a lump sum of S$20,000. He appealed against the sentence.

Holding :

Held, allowing the appeal: (1) the definition of 'film' in s 2 of the Films Act (Cap 107) ('the Act') must be applied to its true construction. The word film in ss 21 and 29 must be enlarged to include other things that would not be regarded as a 'film' within the meaning which the word ordinarily means. There was nothing in ss 21 and 29 of the Act that required every videotape to be treated as a separate film; (2) the broadest possible sense in which the word 'film' could be used to mean a videotape was a videotape with some sequence of visual images but it was to be a record capable of being used as a means of showing that sequence as a moving picture, then it would be ill-founded to say that every videotape, even when it was part of a cinematograph film, must be treated as a film entire unto itself. It would make nonsense of ss 21 and 29 to say that possession of every videotape without a certificate would expose a person to prosecution under the Act; (3) where the sequence of visual images of a moving picture were recorded in more than one videotape, the person in possession of more than one videotape of the same moving picture commits one offence. A was therefore only in possession of 127 uncensored films and would be fined S$12,700 (S$100 per tape).

Digest :

Lui Chang Soong v Public Prosecutor [1992] 1 SLR 734 High Court, Singapore (KS Rajah JC).

372 Firearms (Increased Penalties) Act (Malaysia) -- s 3

4 [372] CRIMINAL LAW Firearms (Increased Penalties) Act (Malaysia) – s 3 – Discharge of firearm – Accused drew pistol when arrested but shot himself instead of arrester – Whether a scheduled offence within item 3 of Schedule to the Act committed

Summary :

The accused and another unidentified person robbed PW8 when one of them pointed a gun at PW8. PW8 then shouted that he had been robbed whilst his friend ran after the two men and managed to retrieve the money. PW8 heard a gun-fire. PW9, a member of the public, also heard the gun fire and saw the accused running past him with a pistol in his hand. He chased after the accused and there was a struggle. During the struggle, the accused then turned around and drew his pistol and shot himself in his stomach. The accused was charged with an offence under s 3 of the Firearms (Increased Penalties) Act 1971 ('the 1971 Act') and an offence under s 8 of the Arms Act 1960. The issues before the court were whether: (a) a scheduled offence had been committed by the accused; (b) PW9 was a person lawfully empowered to make an arrest; and (c) whether a non-bailable and seizable offence had been committed in the view of PW9.

Holding :

Held, convicting the accused: (1) the pistol was not discharged accidentally. The accused had held on to the pistol after the first discharge which meant that he never intended to release the pistol to PW9; (2) from the evidence, it was clear that PW9 chased after the accused with the intention of arresting him and that when he caught up with the accused, the accused drew his pistol and consequently there was a struggle. That was tantamount to committing a scheduled offence as enumerated in item 3 of the Schedule to the 1971 Act, ie the preventing or resisting by any person. The evidence given by PW9 showed that the accused had discharged the pistol and that the accused himself was hurt in the process. It was clear that the accused discharged the pistol at the time when he was committing the scheduled offence and the evidence clearly showed that the accused did intend to cause death to or to hurt PW9 when he discharged the pistol notwithstanding that PW9 was not hurt. The fact that it was the accused who was hurt in the process was irrelevant; (3) PW9 was lawfully empowered to make the arrest because he was a private person arresting the accused who, in his view, committed a non-bailable and seizable offence; (4) a private person meant a member of the public or a citizen as opposed to a police officer; (5) the words 'in his view' must be given a liberal interpretation. They mean not only 'within his sight' but also 'in his presence'. When a man was found committing a non-bailable and cognizable offence and then tries to escape, the whole was to be treated as one single transaction and any person who either saw him committing the offence or found him running away immediately after the commission of the offence would be entitled to arrest him. Those words would cover situations where although the private person did not actually witness the non-bailable and seizable offence being committed, he was certain that those persons running away or trying to escape were the offenders themselves as he was in such close proximity to the scene of the crime; (6) PW9 was certain that the accused had committed robbery when armed which was a non-bailable and seizable offence. He was not chasing after them because he was of the opinion that they had committed an offence of robbery. He was certain that the accused had committed the offence as he heard the sound of gun-fire and heard cries for help to chase the robbers and immediately saw two persons, one of whom was armed, running past him. Under such circumstances, the whole episode was one single transaction and the action of the accused in running away was part of that transaction. The offence was committed within the sight of PW9 and hence fell within the meaning of the words 'in his view' and accordingly PW9 was entitled to arrest the accused by virtue of s 27 of the Code.

Digest :

Public Prosecutor v Sam Hong Choy Criminal Trial No 57-1-92 High Court, Johor Bahru (Mohd Ghazali J).

373 Firearms (Increased Penalties) Act (Malaysia) -- s 3

4 [373] CRIMINAL LAW Firearms (Increased Penalties) Act (Malaysia) – s 3 – Discharge of firearm – Robbery – Death sentence – Robbery with discharge of firearm – Whether prosecution case proved – Identity of accused disputed – Merits of defence – Firearms (Increased Penalties) Act 1971, s 3.

Summary :

The accused robbed certain people, including PW2, who were gambling. In the course of the robbery, the accused fired a shot from the firearm that he was carrying and injured PW2. The accused was charged with an offence punishable under s 3 of the Firearms (Increased Penalties) Act 1971 (Act 37). The accused denied robbing and shooting PW2 although he admitted being at the scene of the crime. The defence also disputed the identification of the accused by PW2.

Holding :

Held: (1) the prosecution had proved their case beyond all reasonable doubt; (2) there was no doubt that the accused was positively identified by PW2; (3) the accused was convicted and sentenced to death.

Digest :

Public Prosecutor v Chiong Cheng Wah [1988] 3 MLJ 56 High Court, Penang (Mohamed Dzaiddin J).

374 Firearms (Increased Penalties) Act (Malaysia) -- s 3

4 [374] CRIMINAL LAW Firearms (Increased Penalties) Act (Malaysia) – s 3 – Discharging firearm with intention to escape from lawful custody – Whether accused was in lawful custody

Summary :

D was charged with discharging a shot from a firearm with the intention of escaping from lawful custody on 12 July 1987, an offence which is punishable under s 3 of the Firearms (Increased Penalties) Act 1971 ('the Act'). D was earlier arrested for four offences of armed robbery on 12 January 1986. Since then D was remanded in custody until 27 December 1986 when he was convicted and sentenced by the magistrate for the four offences. The magistrate sentenced D to one year's imprisonment from the date of his arrest and one stroke of rotan for each of the four offences. The imprisonment sentences were to run concurrently and were recorded in the notes of proceedings. Subsequently, the magistrate altered the date of commencement of the imprisonment sentences to the date of sentence. Consequently, the date of commencement of the imprisonment sentences in D's four warrants of commitment and the four charge sheets were also altered. The prosecution did not call the magistrate as a witness. The prison records officer gave evidence that had the imprisonment sentences commenced on 12 January 1986 and had there been remission of the imprisonment sentences, D would have been released on 11 September 1986. The prosecution adduced evidence that it was when D was taken to hospital for treatment that he seized a revolver from a prison warder, X. D was then alleged to have shot at X while trying to escape. There was also evidence that D later brandished the revolver to force a taxi driver to help him escape.

Holding :

Held, convicting D on a lesser charge: (1) the prosecution had to establish three ingredients of the charge, namely that D had discharged a shot at X, that D had the intention to cause death or grievous hurt to X and that D was in lawful custody at the time the offence was alleged to have been committed; (2) if the magistrate had altered the date of commencement of the imprisonment sentences after she had pronounced the sentences, this was improper and contrary to s 278 of the Criminal Procedure Code (FMS Cap 6). This was because such alteration could not be considered a rectification of a clerical error which may be made at any time. There was also no proof that the alteration was made before the court rose for the day or at the time sentence was passed and in the presence of D. The magistrate had no power to alter after she had pronounced sentence on D and had signed her notes of proceedings; (3) there were thus grave doubts as to whether D was in lawful custody at the time of the incident. D could not therefore be found guilty under s 3 of the Act; (4) the prosecution had however proved beyond reasonable doubt that D was guilty of an offence under s 33 of the Arms Act 1960. D was sentenced to four years' imprisonment from the date of conviction and to four strokes of rotan.

Digest :

Public Prosecutor v Yap Thiang Wah [1992] 1 MLJ 206 High Court, Johore Bahru (LC Vohrah J).

375 Firearms (Increased Penalties) Act (Malaysia) -- ss 4, 9

4 [375] CRIMINAL LAW Firearms (Increased Penalties) Act (Malaysia) – ss 4, 9 – Exhibiting a firearm – Whether s 34 of the Penal Code can be invoked to punish person other than the one who exhibited firearm – Whether such person can be charged jointly under ss 392 and 397 of the Penal Code – Penal Code, ss 392 & 397

Digest :

Tan Chew Man v Public Prosecutor [1977] 2 MLJ 247 Federal Court, Kuala Lumpur (Gill CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 1132.

376 Firearms and Ammunition (Unlawful Possession) Ordinance (Malaysia) -- s 3

4 [376] CRIMINAL LAW Firearms and Ammunition (Unlawful Possession) Ordinance (Malaysia) – s 3 – Possession of firearms – Arms property of or under immediate control of government – Arms Enactment, Johore, ss 1(ii), 3, 4, 53 and 54 – Firearms and Ammunition (Unlawful Possession) Ordinance 1946 – Arms the property of or under the immediate control of the government.

Summary :

The accused was charged with possession of a firearm which was not a firearm he was duly licensed to carry under the Arms Enactment of Johore. On the facts, it appeared that the accused was an auxiliary police constable and had got hold of the unregistered weapon in an attempt to aid police informers.

Holding :

Held: when the accused succeeded in getting hold of the unregistered weapon, he was acting within the scope of his duty and the weapon was therefore under the immediate control of the accused as an auxiliary police officer and a member of the government of Johore, and he therefore required no licence under the Arms Enactment to justify his possession.

Digest :

Public Prosecutor v Talib bin Ahmad [1950] MLJ 61 High Court, Muar (Laville J).

377 Firearms and Ammunition (Unlawful Possession) Ordinance (Malaysia) -- s 3

4 [377] CRIMINAL LAW Firearms and Ammunition (Unlawful Possession) Ordinance (Malaysia) – s 3 – Possession of firearms – Person in possession must have power to deal with thing as owner to exclusion of all others – Firearms and Ammunition (Unlawful Possession) Ordinance 1946, s 3 – Possession of pistol – Meaning of 'possession' – Person to be in possession must have power to deal with thing as owner to the exclusion of all others.

Summary :

The evidence in this case showed that accused No 1 negotiated for the sale of a pistol to a detective police constable and that he arranged for its production at the scene of delivery, handled the weapon there, delivered it to the detective police constable and received from him $300 which he kept exclusively to himself as the price thereof. The evidence also showed that accused No 2 received a bundle containing the pistol and handed the bundle to accused No 3, who actually handed it to the detective police constable. The accused were all charged with possession of the pistol under s 3 of the Firearms and Ammunition (Unlawful Possession) Ordinance 1946.

Holding :

Held: (1) in order to make the possession of anything criminal, there must be consciousness on the part of the accused that he is in possession of the prohibited article, unless it is explicitly stated that mere possession without knowledge is an offence, and as there was no evidence that accused No 2 knew that the pistol was concealed in the bundle and as his handling was of so remote and fleeting a nature as to exclude the idea of criminality, he cannot be convicted of the offence of possession under the ordinance; (2) the 'possession' of the third accused was also so remote from the intention of the ordinance and so fleeting that it should be considered rather as handling than possession, and cannot import any criminality; (3) it was clear that accused No 1 was so situated with regard to the pistol that he had the power to deal with it by negotiating a sale of it and he was therefore in possession of the pistol.

Digest :

Public Prosecutor v Govindan Kurup & Ors [1947] MLJ 150 High Court, Malayan Union (Laville J).

378 Firearms and Ammunition (Unlawful Possession) Ordinance (Malaysia) -- s 3

4 [378] CRIMINAL LAW Firearms and Ammunition (Unlawful Possession) Ordinance (Malaysia) – s 3 – Possession of firearms and ammunition – Proof of criminal possession – Conscious and exclusive possession – Firearms and Ammunition (Unlawful Possession) Ordinance (Ordinance No 28 of 1946), s 3 – Definition of unlawful possession – Proof of criminal possession of arms and ammunition – Conscious and exclusive possession – Explosives Enactment Johore Laws No 56 – Arms Enactment Johore Laws No 64.

Summary :

The three accused were charged with unlawful possession of arms and ammunition, to wit, two Lewis guns, 272 rounds of Sten ammunition, and l86 rounds of .303 ammunition. The evidence was that the arms and ammunition were found in a car driven by the second accused and in the back of which were sitting the first and third accused. The question was whether the accused or any one of them was in possession of the arms and ammunition.

Holding :

Held: (1) to prove criminal possession in normal circumstances, the prosecution must prove: (a) conscious possession and (b) exclusive possession; (2) where any one of three men may be the person in possession or all three jointly, and the evidence is merely one of juxtaposition of all three to the article in question, and the juxtaposition is such that from it an equal inference in regard to any of the three can be drawn, it is impossible for the court to choose between the three men; (3) where the juxtaposition is one which precludes an inference of guilty knowledge on the part of any or all of the accused, no inference as to such knowledge can be drawn. Without such knowledge, the theoretic power of the disposal of the article in question which may exist in any or all of them jointly and severally will not suffice for a conviction; (4) the Firearms and Ammunition (Unlawful Possession) Ordinance (No 28 of 1946) is in its essence one that merely increases the penalty for unlawful possession of arms and ammunition above the maximum laid down in other ordinances or enactments dealing with such possession and does not stultify or abrogate the provisions of any other law dealing with arms or ammunition, and the prosecution must prove that the provisions of some other law dealing with unlawful possession of arms and ammunition still in force have been broken, and in order to do this it is open to them to use all powers given them for that purpose by the said law; (5) where the said law, as in the case of the Arms Enactment of Johore, lays down that every person who is proved to have had in his possession or under his control anything whatever containing any arms shall, until the contrary be proved, be deemed to have been in possession of those arms, then when an accused person is proved to have had in his possession or control anything containing arms, the onus is on him to prove that he was not in possession of those arms. The presumption raised is rebuttable, but the rebutting evidence must go to show absence of knowledge of the gun or absence of power of disposal and control of the gun.

Digest :

Public Prosecutor v Wong Peng Wah & Ors [1948] MLJ 131 High Court, Johore Bahru (Laville J).

379 Firearms and Ammunition (Unlawful Possession) Ordinance (Malaysia) -- s 3

4 [379] CRIMINAL LAW Firearms and Ammunition (Unlawful Possession) Ordinance (Malaysia) – s 3 – Possession of firearms and ammunition – Single act being an offence under two or more distinct provisions of the law providing widely different punishments – Arms Enactment, s 4(ii) – Rule 76 of Rules made under s 5 of the Explosives Enactment – Possession of a shot gun and possession of cartridges – Whether person in possession can be prosecuted under the Arms Enactment and under the rules made under the Explosives Enactment after the coming into force of the Firearms and Ammunition (Unlawful Possession) Ordinance 1946 – Single act being an offence under two or more distinct provisions of the law providing widely different punishments – Interpretation and General Clauses Enactment, s 27 – Interpretation Ordinance (SS), s 4(g) – District judge cannot refuse to try charge under Arms Enactment on ground that he has no jurisdiction to try case – After hearing the case he may exercise his discretion under s 177 of the Criminal Procedure Code to transfer case to a higher court – Criminal Procedure Code, s 173(a) and (b).

Summary :

The accused was charged before a district court under s 4(ii) of the Arms Enactment and under r 76 of the rules made under s 5 of the Explosives Enactment respectively with being in possession of a shot gun and with being in possession of four cartridges. On the day upon which the accused was before the district court, the Firearms and Ammunition (Unlawful Possession) Ordinance 1946 had come into force. The district judge thought it right to frame new charges under s 3 thereof and as the maximum punishment under that section was ten years' rigorous imprisonment, he transferred the case to the magistrate to hold a preliminary inquiry with a view to the committal of the accused to the Assizes. It was against this order of the district judge framing the new charges and remitting the case for preliminary inquiry that the appeal was brought on behalf of the Public Prosecutor.

Holding :

Held: (1) by virtue of s 27 of the Interpretation and General Clauses Enactment (corresponding to s 4(g) of the Interpretation Ordinance of the Straits Settlements) where the law provides, either in the same or different enactments, for different penalties for the same offence, both or all of the provisions as to punishments are intended to stand side by side and it is left to the proper authorities to decide under which of the different provisions the offender shall be prosecuted and punished; (2) in this case, the order made by the district judge remitting the case to the magistrate's court for preliminary inquiry was wrong, as the district judge had jurisdiction to try the accused under the two charges preferred against him and should therefore have proceeded to hear the evidence or at least to hear the prosecution open the case; (3) the district judge can act under s 177 of the Criminal Procedure Code if upon the facts of the case, it appears to him that the case ought to be tried by the High Court and in that case, he can either transfer by sending the case to a magistrate or himself proceed under Chapter XVII of the Criminal Procedure Code.

Digest :

Public Prosecutor v Viran [1947] MLJ 62 High Court, Malayan Union (Spenser-Wilkinson J).

380 Firearms and Ammunition (Unlawful Possession) Ordinance (Singapore) -- s 3

4 [380] CRIMINAL LAW Firearms and Ammunition (Unlawful Possession) Ordinance (Singapore) – s 3 – Possession of ammunition

Summary :

{bb]Held: possession, in order to incriminate a person, must have the following characteristics: the possessor must know the nature of the thing possessed, must have in him a power of disposal over the thing, and lastly must be conscious of his possession of the thing. If these factors are absent, his possession can raise no presumption of mens rea, without which (except by statute) possession cannot be criminal.

Digest :

Toh Ah Loh & Anor v R [1949] MLJ 54 Court of Criminal Appeal, Singapore (Gordon-Smith Ag CJ, Laville and Brown JJ).

See ARMS AND EXPLOSIVES, Vol 1, para 721.

Annotation :

[Annotation: See also Oh Eng Thye v Public Prosecutor [1954] MLJ 1; Tan Peng Heng v R [1954] MLJ 89; Lee Boon Gan v R [1954] MLJ 103; Loke Tham Chuan v Public Prosecutor [1955] MLJ 3; Leow Nghee Lim v R [1956] MLJ 28; Ho Seng Seng v R [1951] MLJ 225; and Sim Chwee Chua v R [1951] MLJ 227. See also the observations of Taylor J on 'possession' and 'possession by carrier' in Ang Kim Kow v R [1956] MLJ 143 at pp 1445, and the observations of Thomson J on what amounts to possession in Chan Pean Leon v Public Prosecutor [1956] MLJ 237, where he distinguished the cases of Toh Ah Loh and Lee Boon Gan.]

381 Firearms and Ammunition (Unlawful Possession) Ordinance (Singapore) -- s 3

4 [381] CRIMINAL LAW Firearms and Ammunition (Unlawful Possession) Ordinance (Singapore) – s 3 – Possession of firearms and ammunition – Possession by carriers – Firearms and Ammunition (Unlawful Possession) Ordinance 1946 – Unlawful possession of ammunition – Meaning of possession – Possession by carriers.

Summary :

The appellant and four persons were jointly charged with unlawful possession of ammunition, to wit, bombs. The evidence for the prosecution was that five persons were in a hired car which was stopped by the police. In the car were found sacks containing explosives. The five men later led the police to a spot in a swampy scrub near a creek where the bombs from which the explosives were taken had been opened; one of the prisoners pointed out the exact spot where parts of the cases were buried in the mud. Inspections revealed that the bombs had been stolen from a RAF depot. The appellant in this case was the driver of the hired car. In his defence, the appellant said that two days before he had conveyed the party and some implements to a place near the landward side of the creek; he was then engaged to go again two days later to bring some sacks of what he was told to be 'fertilizer'; he went accordingly, waited some distance from the creek till the persons returned, helped them to load the sacks and was driving back towards the main road when the police stopped the car. The appellant was convicted and he appealed. The grounds of appeal were that: (a) the appellant had never been to the swamp before the arrest and therefore there was no evidence that he had participated in the dealing with the bombs; (b) the directions as to the law of possession given to the jury were unsatisfactory.

Holding :

Held: (1) the jury was insufficiently directed as to the points they should consider in deciding whether the appellant (as distinct from the other accused) participated in dealing with the bombs themselves, which were the subject of the charge; (2) there was an insufficient analysis of the circumstances in which the appellant conveyed the goods, with relation to the law of possession by carriers, to enable them to appreciate fully the distinction in law between the case against the appellant and the case against the other accused; (3) for these reasons, the conviction of the appellant was unsatisfactory and must be quashed.

Digest :

Ang Kim Kow v R [1956] MLJ 143 Court of Criminal Appeal, Singapore (Whyatt CJ, Taylor and Tan Ah Tah JJ).

382 Food Control (Rice Milling) Regulations (Malaysia) -- reg 5

4 [382] CRIMINAL LAW Food Control (Rice Milling) Regulations (Malaysia) – reg 5 – Operating a rice mill without a licence – Meaning of 'purpose' – Misdirection – Food control – Rice mill – Operating without licence – Charge made – Total misdirection by magistrate – Awarded charge – Opportunity to be heard on amended charge – Case sent back to magistrate to decide on the merits – Control of Supplies Act 1961, s 22(1) & (2) – Food Control (Rice Milling) Regulations 1950, reg 5.

Summary :

The respondents were charged under reg 5 of the Food Control (Rice Milling) Regulations 1950 as follows: 'That you on the 6th day of February 1968 at premises No C4497, Batu 31/2 Malim Road, Melaka in the State of Melaka, did, without a licence from the State Secretary Melaka, operate a mill driven by an engine for the purpose of milling padi into rice and that you have thereby committed an offence under reg 5 of the Food Control (Rice Milling) Regulations 1950 punishable under s 22(i) of the Control of Supplies Act 1961.' The learned magistrate after calling for the defence acquitted and discharged the respondents on three grounds, namely: (a) the rules and byelaws of the respondents provided for the production of animal food from padi, (b) the honorary secretary of the respondents appeared to be a truthful witness, and (c) the defence had cast a reasonable doubt as to the strength of the prosecution case. On appeal,

Holding :

Held, allowing the appeal: the learned magistrate had totally misdirected himself. The matter before the magistrate was a simple question of law, namely, whether on the facts there was a breach of reg 5 of the Food Control (Rice Milling) Regulations 1950.

Digest :

Public Prosecutor v Sharikat Perusahan Makanan Haiwan Berkerjasama2 [1969] 2 MLJ 250 High Court, Malacca (Sharma J).

383 Forces Proclamation (Malaysia) -- s 5(1)

4 [383] CRIMINAL LAW Forces Proclamation (Malaysia) – s 5(1) – Possession of military goods – Necessity of showing that possession is effective and exclusive – Evidence of co-accused

Summary :

The appellant was charged with three others with the possession of military goods contrary to s 5(1) of the Forces Proclamation (Proclamation 50). The evidence was that the four accused were in a car stopped by the police, in which were found two wheels and 12 coils, which were alleged to be military property. No attempt was made to prove that one or some or all of the accused had any control over or the power to dispose of the goods. The only evidence against the appellant was that of his co-accused.

Holding :

Held: (1) where possession imports criminality, it must be proved that the possession is effective and exclusive, that is, that the person or persons charged have the control over and the disposition of the goods found with them and that no other persons have; (2) the evidence of a co-accused against his fellow accused should be given even less weight than that accorded to the evidence of an accomplice, and requires strong corroboration; (3) in this case, there was no corroboration of the evidence of the co-accused by untainted evidence; (4) in this case, the prosecution had failed to make out a case against the accused and all of them should have been discharged at the close of the prosecution.

Digest :

Seah Chay Tee v Public Prosecutor [1948] MLJ 77 High Court, Johore Bahru (Laville J).

Annotation :

[Annotation: The above case was not followed in Daud v Public Prosecutor [1958] MLJ 168 as to what weight should be given to the evidence of the co-accused. See also Tai Chai Keh v Public Prosecutor [1948-49] MLJ 105.]

384 Forest Enactment (Malaysia) -- s 30(g)

4 [384] CRIMINAL LAW Forest Enactment (Malaysia) – s 30(g) – Possession of logs without authority – Prosecution must prove 'knowledge' – Mens rea – Liability of company for acts of its servants – Sabah Forest Enactment 1968, s 30(g).

Summary :

The respondents were charged with an offence for possession of 13 logs bearing the property hammer marks of the North Borneo Timber Bhd Group, without lawful authority or legal right, under s 30(g) of the Forest Enactment 1968. They were acquitted as the learned magistrate held that knowledge was an ingredient of the offence and mere possession was not sufficient to convict. The Public Prosecutor appealed.

Holding :

Held, dismissing the appeal: (1) as the word 'knowingly' is used in s 30(g) of the Forest Enactment, the learned magistrate was right in taking the view that the prosecution must prove knowledge in respect of the offence of possession; (2) in the circumstances of the case, it could not be inferred that the company had knowledge in the matter.

Digest :

Public Prosecutor v Teck Guan Co Ltd [1970] 2 MLJ 141 High Court, Kota Kinabalu (Lee Hun Hoe J).

385 Gambling Ordinance (Malaysia) -- s 7(2)

4 [385] CRIMINAL LAW Gambling Ordinance (Malaysia) – s 7(2) – Gaming – Whether game of 'See Goh Lak' was gaming within meaning of the Ordinance – Whether place where game was played was common gaming house

Summary :

The five respondents were jointly charged with the offence of gambling a game of 'See Goh Lak' in a public place punishable under s 7(2) of the Gambling Ordinance 1957 (Cap 138) ('the Ordinance'). The respondents pleaded guilty. The prosecution tendered one porcelain bowl and three dices as evidence. The learned magistrate dismissed the charge and released the respondents unconditionally on the ground that the game 'See Goh Lak' was not prohibited in the Ordinance. In his grounds of decision, he stated that he exercised his discretion to discharge the respondents unconditionally pursuant to s 173(g) of the Criminal Procedure Code (FMS Cap 6) ('the CPC'). The public prosecutor appealed, contending, inter alia: (a) that since the respondents pleaded guilty, it was not incumbent upon the prosecution to prove the modus operandi of the case and whether it was a game for money or money's worth; and (b) alternatively, that since the respondents had pleaded guilty to something which was not an offence, the learned magistrate could not accept the plea but should have rejected it and set the case down for trial.

Holding :

Held, dismissing the appeal: (1) the learned magistrate arrived at his decision after having considered the evidence contained in the brief facts of the case and other exhibits tendered. It could not be on account of him considering it 'at any previous stage of the case' as spelt out under s 173(g) of the CPC. The learned magistrate had fallen into error by quoting s 173(g) of the CPC as the basis for the exercise of his discretion. The discharge under s 173(g) cannot amount to an acquittal; (2) under the law, if the discharge amounts to an acquittal, the respondents could not be prosecuted any further on the same charge after the order was made unless and until the order was set aside by the appellate court. If the discharge did not amount to an acquittal, the prosecution's prerogative remained as to whether in the future the respondents would or would not be charged on the same charge; (3) having heard all the prosecution's evidence as contained in the brief facts of the case, an accused is entitled to an acquittal if upon such hearing the court finds that no case against him has been made out which if unrebutted would warrant his conviction; (4) the learned magistrate by discharging the respondents unconditionally had found that the prosecution had not proved the charge, ie it had failed to make out a prima facie case. The discharge must therefore be construed as amounting to an acquittal notwithstanding that he said that he was acting pursuant to s 173(g) of the CPC. His error had not occasioned a failure of justice and therefore was curable by s 422 of the CPC; (5) the discharge must be one of acquittal under s 173(f); (6) the game of 'See Goh Lak' was not one of those specified in the First or Second Schedule to the Ordinance; (7) it is the cardinal principle of criminal law that the prosecution must prove its case beyond a reasonable doubt. The mere presence of the exhibits at the scene or mere possession of them by the respondents could not be an inference that the game they played was one of chance or mixed chance and skill, or for money or money's worth; (8) in the circumstances, the place where the game was played could not be said to be a common gaming house and the game played by the respondents was not gaming within the meaning of the Ordinance. Hence, the fact that it was played in a public place would not contravene s 7(2) of the Ordinance; (9) the learned magistrate was obliged to set the case down for trial and reject the plea only in circumstances under s 173(c), which was not the case here for the respondents pleaded guilty unequivocally and did not claim to be tried.

Digest :

Public Prosecutor v Ng Mong Kia & Ors [1993] 3 CLJ 384 High Court, Kuching (Abdul Kadir J).

386 Homicide Ordinance (HK) -- Murder

4 [386] CRIMINAL LAW Homicide Ordinance (HK) – Murder – Common intention – Accused acting as lookout – Knowledge – Inference to be drawn

Summary :

The appellant was convicted of murder. His appeal to the Court of Appeal was dismissed and he appealed to the Privy Council. The evidence at trial revealed that there had been a gang clash between two rival triad societies. After the clash, members of one society sought out the deceased (a member of the rival society) seeking revenge. The appellant had helped find the deceased but took no part in the fight. He merely acted as a lookout. In the fight that followed, the deceased suffered cuts to the head and neck from which injuries he later died. The appellant's main ground of appeal was that the trial judge had not directed the jury as to an alternative verdict of manslaughter.

Holding :

Held, dismissing the appeal (1) the test of mens rea here was subjective. It was what the individual accused in fact contemplated that mattered. As in other cases where the state of a person's mind had to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution; (2) this was a revenge attack by members of one triad society upon the members of another. It took place at 4am, after a prolonged search and after reinforcements had been summoned; (3) it was not fairly open to the jury on the evidence before them to bring in an alternative verdict. The appellant must have foreseen that the infliction of serious bodily harm was a possible incident of the common unlawful enterprise and yet he still participated in it.

Digest :

Lai Chi-Hong v R [1992] 2 CLJ 1119 Privy Council Appeal from Hong Kong (Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Goff of Chieveley and Lord Browne-Wilkinson).

387 Homicide Ordinance (HK) -- Murder

4 [387] CRIMINAL LAW Homicide Ordinance (HK) – Murder – Common intention – Participation in common unlawful enterprise – Death caused by another participant – Mens rea necessary for conviction of murder

Summary :

D, the deceased, was assaulted and killed by a group of youths, of which A was one. The fatal blow was inflicted by P. P was tried by jury and convicted of manslaughter. A was arrested after P's trial. He was indicted for murder. The Crown offered to accept a plea of guilty to manslaughter from A but the offer was refused. A was convicted of murder. He appealed on three grounds: firstly, that evidence of P's conviction for manslaughter should not have been excluded; secondly, that the jury had been misdirected by the trial judge as to the participation of an accomplice in a common unlawful enterprise; and thirdly, that it was an abuse of process to prosecute A for murder when the principal offender had only been convicted of manslaughter.

Holding :

Held, dismissing the appeal: (1) evidence of P's conviction for manslaughter was inadmissible at A's trial. The decision in that trial was irrelevant to the present trial; (2) if two persons A and B participate in a common unlawful enterprise, there is sufficient mens rea for B to be convicted of murder if he realizes that A may kill or intentionally inflict serious injury and A does kill someone in the course of the venture; (3) the doctrine of abuse of process and the remedy of refusal to allow a trial to proceed are well established. There must always be a residual discretion to prevent anything which savours of abuse of process; (4) having reviewed the case, the Privy Council could find no aspect of the case which could credibly be described as an abuse of process, ie something so unfair and wrong that the court should not allow a prosecutor to proceed. The fact that the verdict was inconsistent with that in the trial of the principal offender did not make it an abuse of process for the prosecution to proceed with a charge that was justified by the evidence.

Digest :

Hui Chi-ming v R [1991] 3 All ER 897 Privy Council Appeal from Hong Kong (Lord Bridge, Lord Oliver, Lord Goff, Lord Jauncey and Lord Lowry).

388 Immigration Act (Singapore) -- s 57(1)(c), (iii)

4 [388] CRIMINAL LAW Immigration Act (Singapore) – s 57(1)(c), (iii) – Conveying prohibited immigrant into Singapore – Sentencing – Whether sentence in accordance with law

See criminal law, para V [53].

Digest :

Shekhar a/l Subramaniam v Public Prosecutor [1997] 2 SLR 744 High Court, Singapore (Yong Pung How CJ).

389 Immigration Act (Singapore) -- s 57(1)(d)

4 [389] CRIMINAL LAW Immigration Act (Singapore) – s 57(1)(d) – Harbouring overstayers – Statutory presumption – Strict liability – Overstayers found on accused's premises – Rebutting presumption – Accused's burden of proof

Summary :

R was charged with having harboured three Indian nationals knowing them to be overstayers. At his trial, R gave evidence that he did not know the Indian nationals were illegal overstayers and that he merely gave them shelter at his premises at the request of the labour officers, pending a reply from the Ministry of Labour on their complaint that they had not been paid their wages. R was acquitted and the prosecution appealed.

Holding :

Held, allowing the appeal and convicting R: (1) the prosecution had proven the essential ingredients of the charges and the presumption under s 57(7) of the Immigration Act (Cap 133) ('the Act') clearly arose, until the contrary was proved, that R had harboured the three Indian overstayers knowing them to be persons who had acted in contravention of the provisions of the Act or the regulations. The effect of the presumption was to make s 57(1)(d) of the Act, under which R was charged, a strict liability offence; (2) to rebut the presumption, it was not enough for R merely to deny knowledge of the acquisition of knowledge. Even if R proved to the satisfaction of the court that he in fact did not know that the three Indians were overstayers, he was still not entitled to be acquitted unless he proved on a balance of probabilities that he could not have reasonably known that they were overstayers; (3) it was clear from the enhanced punishments under s 57(1)(ii) of the Act that the legislature intended to curb the problems of illegal immigrants, overstayers and employment of illegal immigrants by discouraging the employment or harbouring of such persons. This would not be achieved if mere negligence and recklessness on the part of the accused to enquire about the status of the illegal immigrant or overstayer, if he knows or has reason to believe that the person was a foreigner, would be sufficient to rebut the presumption of knowledge; (4) the trial judge failed to give sufficient weight to the fact that the three Indian overstayers had been given amnesty and the charges against them were withdrawn. They had no reason to be evasive in their evidence for fear of inculpating themselves. They had nothing to gain. The trial judge erred in hesitating to accept their evidence.

Digest :

Public Prosecutor v Vadivelu [1992] 1 SLR 105 High Court, Singapore (FA Chua J).

390 Immigration Act (Singapore) -- ss 2, 57

4 [390] CRIMINAL LAW Immigration Act (Singapore) – ss 2, 57 – Definition of employment – Scope – Whether person employing an illegal immigrant on behalf of another is liable

Summary :

The respondent was charged for having employed an illegal overstayer in contravention of s 57(1)(e) of the Immigration Act (Cap 133) ('the Act'). The prosecution alleged that the respondent had employed an illegal immigrant in a pork lard factory styled as Soh Tai Sun Suppliers. The respondent had, in the presence of her husband who was the sole proprietor of the factory, approached the illegal immigrant and engaged him to heat the pork lard and re-pack them in aluminium tins. The respondent paid for the services. The defence contended that the running of the factory was sublet to one Rattan Singh and that the respondent did not employ the illegal immigrant. The defence produced documents reflecting such arrangement with one Rattan Singh but claimed that he could not be located during the trial. An independent witness for the defence indicated that he visited the factory thrice a week but on none of those occasions had he seen the respondent at the factory. The learned district judge before whom the trial proceeded ruled that the defence had raised a reasonable doubt in the prosecution's case and acquitted the respondent. The district judge held that the respondent did not employ the illegal immigrant and at the most, it was Soh Tai Sun Suppliers who had employed the illegal immigrant. The public prosecutor appealed and contended that the respondent had employed the illegal immigrant in view of the fact that the wages were paid by the respondent, and the definition of employment under the Act did not require that the benefit of employment must accrue directly to the employer (in this case to the respondent).

Holding :

Held, dismissing the appeal: (1) the word 'employ' in s 2 of the Act connotes a creation of a contract of some sort but not necessarily a normal contract of employment; (2) although the definition of employment under the Act does not necessarily require that the benefit of the employment must directly accrue to the person engaging his services, it does not extend to persons who are merely performing physical acts of engaging employees or paying them on behalf of another. In such a case, he may have abetted the offence but the present charge did not refer to abetment; (3) such an interpretation of the word 'employment' is fortified by the presence of s 57(2) of the Act; (4) in the instant case, the business was solely owned and run by the husband of the respondent and the employer in this case was Soh Tai Sun Suppliers and not the respondent although the respondent may have engaged the services of the illegal immigrant on behalf of her husband; (5) there was no evidence that the respondent had employed the illegal immigrant in her personal capacity.

Digest :

Public Prosecutor v Yap Baby [1993] 3 SLR 633 High Court, Singapore (Yong Pung How CJ).

391 Immigration Act (Singapore) -- ss 6,15, 57

4 [391] CRIMINAL LAW Immigration Act (Singapore) – ss 6,15, 57 – Employing overstayer – Strict liability – Presumption of knowledge under s 57(8) – Whether appellant was an 'occupier' within meaning of s 2

Summary :

The appellant was charged with employing an overstayer, one Subramaniam Murugan, an offence punishable under s 57 of the Immigration Act (Cap 133) ('the Act'). The prosecution led evidence to show that Subramaniam Murugan was an illegal overstayer and that he had been employed by the appellant. Apart from the testimony that the appellant had not inquired about the immigration status of Subramaniam, the prosecution did not adduce any evidence to show that the appellant had employed him knowing that he was an overstayer. The prosecution submitted that the offence under s 57 of the Act was one of strict liability and that mens rea need not be proved. In this respect, the prosecution relied on the presumption of knowledge contained in s 57(8) of the Act. The appellant was convicted and sentenced to six months' imprisonment. He appealed.

Holding :

Held, dismissing the appeal: (1) a strict liability offence is one in which the components of the offence do not include mens rea, in the sense of guilty knowledge. A presumption of mens rea which operates in certain circumstances can never turn an offence, of which an essential element is guilty knowledge, into a substantive strict liability offence. The presumption merely obviates the need for proof of mens rea. The correct interpretation of the Act, therefore, should be that mens rea is an essential component in every offence under s 57(1) but need not be proved in the specific instances set out in ss 57(6)(8), in which an offender is presumed to have the necessary mens rea; (2) be that as it may, the presumption laid down in s 57(8) did apply in the instant case and by operation, the learned magistrate was perfectly entitled to hold that the appellant had a case to answer notwithstanding the prosecution's failure to adduce evidence of mens rea. It was clear that Subramaniam was in contravention of s 15 of the Act and an illegal overstayer. He was found in a place not used solely for residential purposes, namely, the Changi Airport Terminal II worksite and was engaged in activity, which must give rise to the inference that he was doing work there; (3) the only question that was left to be decided was whether the appellant was an 'occupier'. The definition of the word 'occupier' in s 2 of the Act is non-exhaustive. An independent contractor, such as the appellant, who supplies labour is a person carrying on building operations within the meaning of 'occupier' in s 2. The appellant was therefore presumed to know that Subramaniam was an overstayer. The appellant had not rebutted this presumption and he was therefore rightly convicted; (4) (obiter) the social implications of unrestricted immigration, which the Act attempts to curb, are obvious. It is toward the controlling of such immigration and toward the proper enforcement of the Act that in practice, the courts have treated s 57(1) as if it does impose a strict liability, and have placed a high obligation on the part of the employer of foreign workers to establish that they were not illegal immigrants or overstayers before employing them. This strict approach, certainly as regards s 57(1)(e), must be taken. To allow an employer to evade the section by doing what would, in effect, amount to wilfully shutting his eyes to the immigration or employment status of his foreign employee, would make proper control and enforcement impossible. It could not be placing too onerous a duty upon employers in Singapore to require them to screen their foreign workers before employing them to ensure compliance with immigration policy and the law.

Digest :

Naranjan Singh v Public Prosecutor Magistrate's Appeal No 398-91-01 High Court, Singapore (Yong Pung How CJ).

392 Immigration Ordinance (Singapore) -- s 6

4 [392] CRIMINAL LAW Immigration Ordinance (Singapore) – s 6 – Illegal stay in Singapore – Whether mens rea necessary – Prohibition order not brought to notice of accused – Immigration – Control of entry – Prohibition order made against person living in Federation regularly visiting family in Singapore – Order not brought to notice of accused – Lack of provision for publication of order of any kind as made in present case – Arrest and prosecution of accused – Whether mens rea essential in such cases – Immigration Ordinance (Cap 102), ss 6, 9 and 57.

Summary :

The appellant who was born in China about the year 1900, after living in Singapore with his wives and children, left Singapore in 1954 in circumstances apparently of some suspicion. At the beginning of 1955, he was living in the Federation of Malaya and he visited his family daily at Singapore, returning each night to the Federation. On 28 May 1959, the minister, acting under s 9 of the Immigration Ordinance (Cap 102, 1955 Ed) ('the Ordinance'), made an order prohibiting the appellant from entering Singapore, but there was no evidence at the trial from which it could properly be inferred that the order had in fact come to the notice or attention of the appellant. At sometime more than ten days before 29 June 1959, the appellant began to live in Singapore. On 29 June, the appellant was arrested and was duly charged under s 6(2) of the Ordinance and convicted on 27 August 1959 by the magistrate. On the High Court dismissing his appeal without stating any reasons, he appealed by special leave to the Board. It was argued for the appellant that: (a) the absence of any evidence of the guilty intent of the appellant was fatal to the validity of his conviction; (b) if mens rea was an essential ingredient of an offence under s 6(3) of the Ordinance, then the onus of proof of its existence lay upon the prosecution.

Holding :

Held: the presumption is that mens rea or evil intention or knowledge of the wrongfulness of the act is an essential ingredient of every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered. Observations of Wright J in Sherras v de Rutzen [1895] 1 QB 918 and Lord Du Parcq in Srinivas Mall Bairolia v King Emperor ILR 26 Patna 460 followed. In this case, the application of the rule that mens rea is an essential ingredient of every offence has not been ousted by the terms or subject matter of the ordinance, and the appellant's conviction cannot stand. Observations made on ss 6 and 9 of the Immigration Ordinance.

Digest :

Lim Chin Aik v R [1963] MLJ 50 Privy Council Appeal from Singapore (Viscount Radcliffe, Lord Evershed and Lord Devlin).

393 Internal Security Act (Malaysia) -- s 57(1)

4 [393] CRIMINAL LAW Internal Security Act (Malaysia) – s 57(1) – Possession of firearms and ammunition – Defence denied – Failure of accused to rebut prosecution's case

Summary :

A was charged with unlawful possession of a firearm, an offence under s 57(1)(a) of the Internal Security Act 1960 and punishable under the same section. The firearm, a revolver Colt .38 Special, was recovered from A after he was caught by the police. A had attempted to escape from a police party which had raised a house but was caught after a short chase. X who led the police party to the house was an accomplice of A when A committed an earlier robbery. In his defence, A denied being in possession of the revolver belonged to someone else in the house and that the police had framed him by planting the revolver at the spot from where the revolver was alleged to have been recovered by the police. The revolver was sent to the government chemist for examination and was found to be serviceable. Counsel for A in the course of his submission urged the court to disregard the evidence of X and the admission of A in cross-examination relating to an earlier robbery when A had pointed the revolver at a Chinese couple on the ground that it offended s 54 of the Evidence Act 1950 as being evidence of bad character and consequently irrelevant.

Holding :

Held, finding A guilty: (1) having regard to the totality of the evidence, the court was satisfied that A had failed to rebut the prosecution's case. The court did not find A a credible witness; (2) the evidence of X and the admission of A in cross-examination relating to the earlier robbery was admissible, forming part of the res gestae of the fact in issue under s 8 of the Evidence Act 1950 as being conduct which influenced the fact in issue, that is, the question of his being in possession of the revolver and under s 9 of the same Act as explaining the fact in issue; (3) after considering all of the evidence presented by the prosecution and the defence as a whole, the court found A guilty as charged. A was accordingly convicted and sentenced to death.

Digest :

Public Prosecutor v Junaidi bin Abdullah Criminal Trial No 24 of 1984 High Court, Johore Bahru (LC Vohrah J).

394 Internal Security Act (Malaysia) -- s 57(1)

4 [394] CRIMINAL LAW Internal Security Act (Malaysia) – s 57(1) – Possession of firearms and ammunition – Definition of 'firearm' and 'ammunition' – Whether exhibits seized were 'firearm' and 'ammunition' – Whether expert evidence of armourer and chemist on exhibits to be disregarded – Whether there was break in chain of evidence before exhibits sent to armourer and chemist – Internal Security Act 1960, s 2

Digest :

Sun Kam Heng v Public Prosecutor [1992] 2 MLJ 826 Supreme Court, Malaysia (Mohamed Azmi, Peh Swee Chin and Edgar Joseph Jr SCJJ).

See CRIMINAL LAW, Vol 4, para 383.

395 Internal Security Act (Malaysia) -- s 57(1)

4 [395] CRIMINAL LAW Internal Security Act (Malaysia) – s 57(1) – Possession of firearms and ammunition – Identity of exhibits – Exhibits were kept in safe of police officer who was neither called nor offered by prosecution to defence – Whether exhibits produced in court were that seized from accused – Whether expert evidence of armourer and chemist to be disregarded if there was break in chain of evidence before exhibits sent to armourer and chemist

Summary :

The appellant was convicted in the High Court of two charges under s 57(1) of the Internal Security Act 1960 ('the Act'). The appellant was firstly charged with having in his possession a firearm and the second charge was that he had in his possession a round of ammunition. The prosecution evidence showed that the appellant had robbed Ong Chee Kew ('Ong') at gunpoint. After the robbery, the appellant was pursued by Ong and during the pursuit, the appellant fired shots at Ong. The appellant then stopped a passing car and at gunpoint, forced its driver, Tan Chee Kean ('Tan'), to drive off. The police were subsequently alerted and they pursued Tan's car. During the pursuit, the appellant fired a shot at the police. Tan's car was finally stopped and the appellant was arrested after a struggle. The firearm and the ammunition were then handed on the same day to the investigating officer ('the IO') who kept the exhibits in the safe of DSP Bahadom ('Bahadom') for three days. Subsequently, the exhibits were enclosed in envelopes which were sealed by the IO. The IO then sent the exhibits to the armourer for test firing. The armourer claimed that the key to Bahadom's safe was held exclusively by Bahadom. After the test firing by the armourer, the exhibits were returned to the IO in sealed envelopes. The IO then sent the exhibits to the government chemist in sealed envelopes, also for the purpose of test firing. The exhibits were finally returned to the IO also in sealed envelopes. The appellant appealed to the Supreme Court against his conviction.

Holding :

Held, allowing the appeal: (1) the burden was on the prosecution from beginning to end to prove beyond reasonable that the subject matter of the charges which had been produced in the trial court were the very things which had been snatched from the hands of the appellant on the date, time and place mentioned in the charges; (2) the police officers who had arrested the appellant had not made any mark on the firearm snatched from the appellant's hand such as a scratch mark nor was the firearm enclosed in a sealed envelope with an appropriate endorsement thereon duly initialled or signed. These omissions became significant, bearing in mind that the firearm produced in the trial court bore no serial number and there was a conflict of evidence as to who actually snatched the firearm from the appellant's hand; (3) the armourer's claim in respect of the key to the safe was worthless as evidence on the ground that such a claim was hearsay because Bahadom was not called; (4) there was no evidence that the firearm which had been snatched from the appellant's hand had been enclosed in a sealed envelope when placed in the safe nor was the safe register produced to demonstrate to the court beyond reasonable doubt what the safe contained during the three days when the firearm was kept in the safe; (5) the evidence regarding the movement of the exhibits to the armourer, the chemist and then back to the IO did not repair the gap in the prosecution case regarding the whereabouts of the exhibits during the three days when the exhibits were allegedly lying in Bahadom's safe. Bahadom was neither called nor offered by the prosecution to the defence. There was also no explanation in the trial and the appellate courts for these glaring omissions; (6) the entire expert testimony of the armourer and the report of the chemist had been directed towards establishing that the exhibits were 'firearm' and 'ammunition' as defined in s 2 of the Act. If there was a break in the chain of evidence at any time before the exhibits were allegedly sent to the armourer, then the testimony of the armourer and the chemist report would have to be disregarded as being irrelevant to the charges. In such circumstances, without the armourer's testimony and the chemist's report, there would be insufficient evidence that what had been snatched from the appellant's hand came within the definitions of 'firearm' and 'ammunition' in s 2 of the Act; (7) there was nothing in the trial judge's judgment to indicate that he had directed his attention to such infirmities in the prosecution case.

Digest :

Sun Kam Heng v Public Prosecutor [1992] 2 MLJ 826 Supreme Court, Malaysia (Mohamed Azmi, Peh Swee Chin and Edgar Joseph Jr SCJJ).

396 Internal Security Act (Malaysia) -- ss 57(1), 58(1)

4 [396] CRIMINAL LAW Internal Security Act (Malaysia) – ss 57(1), 58(1) – Possession of firearms and ammunition – Consorting with Indonesian armed forces – Availability of defences of mistake and accident under Penal Code, ss 76, 78 & 80

Summary :

The appellant was convicted on charges of consorting, possession of arms and possession of ammunition in contravention of s 57(1)(a), (b) and 58(1) of the Internal Security Act 1960. The evidence connecting the appellant with the items of ammunition mentioned in the charge was very tenuous and on appeal this was conceded and conviction on this charge was set aside. The other grounds of appeal were: (a) the statement made by the appellant to the police was wrongly admitted in evidence, as it was made under the influence of physical attacks previously made on the appellant. There was also the possibility of misunderstanding because the appellant and the police officer who took the statements from him spoke different dialects of the Hokkien dialect; (b) the trial judge wrongly refused to refer to statements made to the police by two Indonesian witnesses; (c) the appellant was entitled to the defences of mistake and accident under the Penal Code because when the appellant and the other Indonesian left Indonesia in the aircraft they were of the impression that they were on a practice flight and not on an invasion of Malaysia; and (d) on the evidence, the appellant was a member of the Indonesian military forces (he was wearing Indonesian military uniform at the time of arrest) and that he was a prisoner of war and was therefore entitled to the benefit of the Geneva Conventions although this matter was not raised at the trial.

Holding :

Held: (1) the statement of the appellant was rightly admitted, as the learned trial judge had rejected the appellant's story and found that the statement was voluntary. As there was evidence to show that persons speaking the Hokkien dialect can understand each other irrespective of whatever variety of the dialect of that language was spoken and as there was no evidence to the contrary the court was not prepared to hold that there was any possibility of misunderstanding between the appellant and the police officer who took his statement; (2) the learned trial judge was wrong in refusing the invitation by counsel to refer to statements made by the witnesses but the case fell within the proviso to s 60(1) of the Courts of Judicature Act 1964 as there had been no substantial miscarriage of justice; (3) although the appellant was entitled to avail himself of the defences set out in the Penal Code, this ground of appeal was without any substance in view of what the court had already said in Tan Hua Lam v Public Prosecutor [1966] 1 MLJ 147; (4) as the appellant was born in Johore, it must be presumed that whatever the position as regards his citizenship he was a Johore national and was, therefore, not entitled to the benefit of the Geneva Conventions.

Digest :

Lee Hoo Boon v Public Prosecutor [1966] 2 MLJ 167 Federal Court, Kuala Lumpur (Thomson LP, Harley Ag CJ (Borneo).

Annotation :

[Annotation: This case was dissented from by the Federal Court in Ooi Hee Koi v Public Prosecutor; Ooi Wan Yui v Public Prosecutor [1966] 2 MLJ 183. On appeal, see [1968] 1 MLJ 148.]

397 Internal Security Act (Malaysia) -- ss 57(1), 58(1)

4 [397] CRIMINAL LAW Internal Security Act (Malaysia) – ss 57(1), 58(1) – Possession of firearms and ammunition – Consorting with Indonesian armed forces – Prisoner of war – Consorting with armed Indonesians – Possession of firearm and ammunition – Claim to be 'prisoners of war' – Geneva Conventions Act 1962, 3rd Schedule, art 4 – Internal Security Act 1960, ss 57 and 58.

Summary :

OHK, the appellant in the first appeal, was convicted on charges of possession of a firearm, possession of ammunition and consorting with members of Indonesian armed forces in contravention of ss 57(1)(a), (b) and 58(1) of the Internal Security Act 1960. He pleaded guilty to the third charge, but claimed trial on the other charges. OWY, the other appellant, had claimed trial on three similar charges, with the same result. The material evidence in both cases was very much the same. They were members of an armed force of paratroopers who were air-dropped over the Labis area in Johore in the early hours of 2 September 1964. On the person of OHK was found his identity card, No 3019104, which indicated that his place of birth was 'China' and that he was a 'a citizen of the Federation of Malaya'. OHK in his statement to a police officer said, inter alia, that he had come over from China with his parents at the age of two to reside in Pontian, Johore. OWY was not in possession of any identity card and no evidence was given as to the kind of card issued to him under the National Registration Act 1959. In his cautioned statement, OWY said inter alia that he was born in China and that in 1948 when he was 12 his father brought him to Malaya. It was contended for the appellants that they were and should be treated as 'prisoners of war' as defined in art 4 of the Third Schedule to the Geneva Conventions Act 1962, and as such they should be entitled to all the benefits of the relevant conventions.

Holding :

Held: (1) the question of OHK's allegiance could not be resolved by the mere production of his identity card (which stated that he was born in China and that he was a citizen of the Federation of Malaya), because unlike a passport, an identity card does not confer rights but imposes obligations. Proof of the truth of the allegation as to this appellant's status rested on the prosecution. The prosecution offered no such proof, notwithstanding that both in the identity card and the cautioned statement, the appellant's place of birth was evident. This appellant was therefore a prisoner of war and was entitled to the benefit of the Geneva Conventions; (2) consequently he should have been held to be a prisoner of war and was also entitled to the benefit of the Geneva Conventions; (3) in the case of OWY, the prosecution had failed to prove that he was a person owing allegiance at any relevant time to His Majesty the Yang di-Pertuan Agong;in criminal matters, where life and liberty are at stake, the court will not hesitate to reject even a recent decision of its own, if it is satisfied that all relevant considerations and historical circumstances were not before it in the earlier case.

Digest :

Ooi Hee Koi v Public Prosecutor and another appeal [1966] 2 MLJ 183 Federal Court, Kuala Lumpur (Barakbah LP, Ong Hock Thye FJ and Ismail Khan J).

398 Internal Security Act (Malaysia) -- ss 57, 2, 47

4 [398] CRIMINAL LAW Internal Security Act (Malaysia) – ss 57, 2, 47 – Possession of firearms and ammunition – Security offences – Validity of the Essential (Security Cases) Regulations 1975 – Power of the Attorney General – Meaning of 'firearm'

Summary :

The four appeals were heard together as some of the grounds of appeal overlap. In Criminal Appeal No 40, the accused had been sentenced to death for the offences of possession of firearm contrary to s 57 of the Internal Security Act 1960 (Act 82). The accused in Criminal Appeal No 46 had similarly been sentenced to death. In Criminal Appeal No 39, the accused had been sentenced to life imprisonment for the offence of consorting with the accused in Criminal Appeal No 40. In Criminal Appeal No 43, the accused was acquitted of the offences of possession of firearm and ammunition contrary to s 57 of the Internal Security Act. The main points taken on behalf of all the accused were that: (a) the Essential (Security Cases) Regulations 1975, by virtue of which the accused were tried, were void because the Emergency (Essential Powers) Ordinance No 1, under the authority of which the regulations were made, had lapsed and ceased to be law by effluxion of time and by force of changed circumstances; (b) the Essential (Security Cases) Regulations 1975 were ultra vires the Emergency (Essential Powers) Ordinance, as it was alleged that the Yang di-Pertuan Agong had sub-delegated his powers to the Attorney General; (c) there was no evidence to show that the areas concerned were 'security areas' and reference should have been made in the charges to the proclamation making the areas 'security areas'; (d) the power given to the Attorney General to discriminate as between persons alleged to be in possession of firearms or ammunition and charging them with different offences contravenes art 8 of the Federal Constitution and is therefore void; (e) there had been mala fides when the Attorney General elected to charge the accused under the Internal Security Act; (f) the powers of the Attorney General should have been exercised by him personally and not by a Deputy Public Prosecutor. In Criminal Appeal Nos 39 and 40, it was argued that the statements made by the accused under caution to the police should not have been admitted in evidence. In Criminal Appeal No 43, it was argued that as the evidence showed that the pistol 'did not fire off' the ammunition inserted in it, it was not a firearm within the meaning of s 2 of the Internal Security Act. Held: (1) the 1969 Proclamation of Emergency has not been revoked nor annulled by Parliament. The Emergency (Essential Powers) Ordinance has not been revoked or annulled. Therefore they are still in force; (2) even if there has been sub-delegation by the Yang di-Pertuan Agong, the Essential (Security Cases) Regulations 1975 were not ultra vires the Emergency (Essential Powers) Ordinance as they come within the language of reg 2(1) and 2(2) of the said Ordinance; (3) by virtue of Proclamation PU(A) 148/68, the Yang di-Pertuan Agong had proclaimed all areas in the Federation to be security areas for the purposes of Pt II of the Internal Security Act, and by virtue of s 12 of the Revision of Laws Act 1968 (Act 1), under which the Internal Security Act had been revised, references to Pt II should be read as references to Pt III of the revised Act; (4) under s 57(1)(a) of the Evidence Act 1950 (Act 56), the court is bound to take judicial notice of all laws and regulations and therefore by virtue of s 56 of the Act, the Proclamation in this case need not be proved nor the fact that the locus in each case was in the Federation. Although ideally the prosecution should quote the Proclamation in the charges to help the defence and the courts, failure to do so is not fatal; (5) the Attorney General has power to discriminate between persons alleged to be in possession of firearms or ammunition and to charge them differently. As in England, the Attorney General in Malaysia is permitted to take into account the public interest when deciding what charge or charges to prefer against an accused; (6) the Attorney General was not acting mala fide in charging the accused under the Internal Security Act, as the accused came within the scope of ss 57 and 58 of the Internal Security Act; (7) in Criminal Appeal Nos 39 and 40, the learned trial judge should not have ruled that the cautioned statements were admissible until he had heard the evidence of and on behalf of the accused on this issue and considered their counsel's submissions. As the only evidence that the second accused knew that the first accused had a gun was contained in his cautioned statement and that of the first accused, it would be unsafe to allow his conviction to stand and therefore his appeal would be allowed and his conviction quashed; (8) in Criminal Appeal No 43, the evidence showed that the pistol could be adapted for the discharge of a bullet and therefore was a firearm within the meaning of s 2 of the Internal Security Act. In any event, under reg 21(b) of the Essential (Security Cases) Regulations 1975 (as amended), the firearms and ammunition are deemed to have been serviceable and the onus of proof to the contrary was on the accused.

Digest :

Tan Han Seng Johnson v Public Prosecutor and other appeals [1977] 2 MLJ 66 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

399 Internal Security Act (Malaysia) -- ss 57, 47, 80, 81

4 [399] CRIMINAL LAW Internal Security Act (Malaysia) – ss 57, 47, 80, 81 – Possession of firearms and ammunition – Proof of proclamation of security area – Sanction of public prosecutor

Summary :

In this case, the accused had been charged with two charges for possession of firearms and ammunition at Ipoh which was a security area by virtue of PU(A) 148/69. The evidence showed that the firearms and ammunition were found in a plastic bag and purse under the driver's seat of the car belonging to and driven by the accused. The court held that a prima facie case had been established and called on the accused for his defence. The accused elected to make a written statement from the dock.

Holding :

Held, convicting the accused: (1) the court has to take judicial notice of all laws and regulations, and therefore, the proclamation need not be proved in view of s 56 of the Evidence Act 1950 (Act 56); (2) in regard to the sanction of the public prosecutor, the crucial factor is the offence itself and not so much the exact details which must be the same as the charges. Although the time and place mentioned in the sanction and in the charges are different, the offence in this case was a continuous one and there was no reason to amend the charges as regards the time and place; (3) the date of the proclamation was wrongly given in the charge and the court found it necessary to amend the charges as regards the date of the proclamation. It is not, however, strictly necessary to quote the notification reference in the charges and therefore, the amendment to the charges was purely procedural; (4) the provision for the laying down of the proclamation before the Houses of Parliament is merely directory and not mandatory, and the relevant proclamation is therefore valid without the need to ascertain whether it had been so laid; (5) the court having earlier found that the prosecution had established a prima facie case against the accused, on the basis of the accused's prepared statement, the court was of the opinion that his mere denial through this statement from the dock had not raised any doubt on the prosecution's case. The accused was therefore convicted on the two charges as amended as regards the date of the proclamation.

Digest :

Public Prosecutor v Lee Ah Ha [1989] 1 MLJ 120 High Court, Ipoh (Abdul Malek J).

400 Internal Security Act (Malaysia) -- ss 57, 58, 69

4 [400] CRIMINAL LAW Internal Security Act (Malaysia) – ss 57, 58, 69 – Possession of firearms and ammunition – Consorting with Indonesian armed forces – Defence of duress – Mitigating factor

Summary :

The appellant had been convicted of a charge under the Internal Security Act 1960 for consorting with Indonesian armed forces and sentenced to death. The defence raised was one of duress, that is that the appellant did what he did by reason of having been under the threat of death. On appeal,

Holding :

Held: (1) the effect of s 69 of the Internal Security Act 1960 is to deprive a person accused of an offence punishable with death under Pt II of the Act of the right to set up fear as something affecting his criminal responsibility and, therefore, the trial judge was right in disregarding any defence based on threats and fear of death inspired by threats; (2) the appellant's story of threats should have been considered as something that might have afforded mitigating circumstances and as the learned trial judge had failed to apply his mind to this matter, the sentence would be reduced to one of imprisonment for life.

Digest :

Tan Hoi Hung v Public Prosecutor [1966] 1 MLJ 288 Federal Court, Johore Bahru (Thomson LP, Barakbah CJ (Malaya).

401 Johore Stolen Property and Habitual Criminals Enactment (Malaysia) -- s 2(i)

4 [401] CRIMINAL LAW Johore Stolen Property and Habitual Criminals Enactment (Malaysia) – s 2(i) – Possession of cigarettes reasonably suspected to be stolen – Original charge under Penal Code altered

Digest :

Liang Huay Hoo v Public Prosecutor [1948] MLJ 39 High Court, Malayan Union (Bostock Hill J).

See CRIMINAL LAW, Vol 4, para 1226.

402 Kidnapping Act (Malaysia) -- s 3(1)

4 [402] CRIMINAL LAW Kidnapping Act (Malaysia) – s 3(1) – Abduction of child – Accused persons alleged to have abducted child in furtherance of common intention – No prima facie evidence that child taken away by compulsion and that ransom money paid to accused persons – No evidence of complicity for offence of abduction – First and third accused persons never identified –

Summary :

A were charged with abducting X, aged six years, for ransom in furtherance of the common intention of them all, an offence punishable under s 3(1) of the Kidnapping Act 1961 read with s 34 of the Penal Code (FMS Cap 45). A3 gave a cautioned statement which the prosecution sought to tender in support of the prosecution's case. A objected to the statement being used as evidence at the trial on the ground that it was not made voluntarily. A trial within a trial was accordingly held to determine whether the statement was admissible as evidence. In the trial within a trial, the Deputy Public Prosecutor applied to (a) impeach the credit of Z, a prosecution witness in the main trial and (b) tender two station diaries and one lock-up diary simultaneously as evidence.

Holding :

Held, acquitting A1 and A3 at close of prosecution's case and convicting A2 on amended charge of robbery: (1) in the instant case, the cautioned statement was inadmissible in evidence. No proper caution had been given to A3 as it had not been properly and fully explained so that A3 did understand it. Furthermore, the cautioned statement was obtained under oppressive circumstances. The burden was on the prosecution to prove beyond reasonable doubt that the statement was voluntarily made; (2) the Deputy Public Prosecutor's application to tender two station diaries and one lock-up diary simultaneously as evidence in the trial within a trial was rejected by the learned judge. The learned judge was of the view that these diaries are usually used for refreshing of memory rather than evidence of fact stated therein. As these diaries are not public documents and are only admissible if the makers of those entries were called, the learned judge ruled that they were not admissible as evidence; (3) the learned judge was also of the view that the application of the Deputy Public Prosecutor to impeach the credit of Z could not be entertained as there was so far at this stage of the proceeding no contradiction in Z's evidence in court in the trial within a trial; (4) in the instant case, the identification parade was not properly conducted. The learned judge took the view that it was not safe to convict A on the identification evidence relied upon by the prosecution; (5) in the instant case, the evidence given by the complainant, a young girl aged six years at the time of the incident, had to be corroborated. The evidence must be scrutinized with special care as children have the tendency to invent and distort; (6) in the instant case, only A2 had been positively identified by the mother of the complainant at the time the abduction was alleged to have taken place. In view of the fact that the prosecution had not been able to adduce prima facie evidence that the taking away of the complainant was by compulsion, that the ransom money was paid to the accused persons or that there was evidence of complicity against A1 and A3 for the offence of abduction under s 3(1) of the Kidnapping Act 1961 read with s 34 of the Penal Code (FMS Cap 45), the learned judge accordingly acquitted A1 and A3; (7) as for A2, the charge was amended by the learned judge to one of robbery, an offence punishable under ss 392 and 397 of the Penal Code (FMS Cap 45). A2 pleaded guilty to the amended charge; (8) in the instant case, the learned judge took into consideration the following mitigating factors in passing sentence: (a) A2 had pleaded guilty; (b) he was a first offender; (c) the stolen properties were recovered; (d) no violence or brutality was committed by A2; and (e) A2 had shown remorse. However, A2 was armed with a knife at the time of the robbery. The learned judge accordingly sentenced A2 to six years' imprisonment and two strokes of the cane, the sentence of imprisonment to run from the date of his arrest.

Digest :

Public Prosecutor v Chan Choon Keong & Ors [1989] 2 MLJ 427 High Court, Kuala Lumpur (Faiza Tamby Chik JC).

403 Kidnapping Act (Malaysia) -- s 3(1)

4 [403] CRIMINAL LAW Kidnapping Act (Malaysia) – s 3(1) – Kidnapping for ransom – Abduction of boy – Common intention – Consent of father – Kidnapping – Robbery – Common intention to commit – Kidnapping Act 1961, s 3(1) and Penal Code, s 34.

Summary :

The appellants were convicted of abducting a boy with intent to hold him for ransom in pursuance of a common intention punishable under s 3(1) of the Kidnapping Act 1961, read with s 34 of the Penal Code. On appeal, it was contended that (a) the learned trial judge was wrong in law in failing to consider that although the boy himself was incapable of giving his consent, the circumstances indicated that consent was granted by the father of the child, and (b) although there was a common intention to commit robbery, there was no common intention in respect of kidnapping.

Holding :

Held: (1) the first submission ignored the circumstances of fear induced by the three appellants. These circumstances of fear deprived the consent or any voluntariness; (2) the second and third appellants who remained in the room while the first appellant was demanding RM5,000 or the son were giving mute aid to the first appellant in his demands, and later remained in the house on guard for a sufficient time for the first appellant to abduct and take away the child. All this evidence was sufficient to justify an inference that there was common intention.

Digest :

Foon Bernard v Ors & Public Prosecutor [1968] 2 MLJ 117 Federal Court, Kuala Lumpur (Azmi CJ (Malaya).

404 Kidnapping Act (Malaysia) -- s 3(1)

4 [404] CRIMINAL LAW Kidnapping Act (Malaysia) – s 3(1) – Kidnapping for ransom – Abduction of boy – Trial before judge with aid of assessors – Failure of justice – Trial before judge with aid of assessors – Failure to record reasons given by assessors for their opinions – Not mere irregularity – Failure of justice – Kidnapping Act 1961, s 3(1) – Criminal Procedure Code (Cap 21), ss 197, 198 & 422.

Summary :

This was an appeal against conviction for an offence contrary to s 3(1) of the Kidnapping Act 1961 (Act 41/1961). The accused were tried by a judge with the aid of assessors. At the end of the summing-up, the learned trial judge asked each assessor for his opinion on a number of questions and each of the assessors gave his answers to these questions. The learned trial judge agreed with their opinions and accordingly convicted the first and third appellants and sentenced them to death. On appeal it was argued, inter alia, that the learned trial judge should have ascertained from each assessor the reasons for his opinion, that these reasons should be recorded and that the admitted failure of the learned trial judge to do so vitiated the trial. [bbHeld: the reasons given by the assessors might have influenced the learned trial judge's judgment and the omission by the learned trial judge to ascertain the reasons for the opinion of the assessors had occasioned a failure of justice within the meaning of s 422 of the Criminal Procedure Code (Cap 6).

Digest :

Loh Kheng Meah & Ors v Public Prosecutor [1970] 1 MLJ 11 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Ali FJJ).

405 Kidnapping Act (Singapore) -- s 3

4 [405] CRIMINAL LAW Kidnapping Act (Singapore) – s 3 – Kidnapping for ransom – Abduction of boy – Sentence – Principles of sentencing – Maximum sentence – Kidnapping Act (Cap 101), s 3 – Death sentence – Maximum punishment – Principles applicable and circumstances to be taken into account – Plea of guilty – Carrying arms and weapons – Caning, when to be imposed – Meaning of'rampant'.

Summary :

Section 3 of the Kidnapping Act (Cap 101, 1970 Ed) provides that a person guilty of an offence under that section shall be punished on conviction with 'death or imprisonment for life and shall if he is not sentenced to death, also be liable to caning'. The five appellants pleaded guilty to a charge under s 3 of the said Act. The trial court of two judges sentenced them to death. The trial judges took the view that the alternative sentence of life imprisonment should be imposed only when there were exceptional circumstances which did not justify the imposition of the death sentence. The trial judges were influenced in arriving at the sentence by a statement from the learned Solicitor General that kidnapping was rampant and on the increase in Singapore.

Holding :

Held: (1) the legislature had given the courts a very limited discretion with regard to sentence by s 3 of the Kidnapping Act, the discretion being limited to the imposition of one of three sentences, the maximum being death and the minimum being imprisonment for life. The third was imprisonment for life with caning; (2) it is a long and well-established principle of sentencing that the Legislature in fixing the maximum penalty for a criminal offence intends it only for the worst cases. The maximum sentence would be appropriate for the worst cases of the offence when the manner of the kidnapping or the acts or conduct of the kidnappers are such as to outrage the feelings of the community; (3) the trial judges erroneously took the view that the alternative sentence of life imprisonment should be imposed only when there were some very exceptional circumstances which do not justify the imposition of the death sentence, and on this erroneous view they came to the conclusion that there was no reason why the death sentence should not be imposed on all the accused; (4) on the statistics that were before the court (which were not available to the trial judges), it was clear that the crime of kidnapping for ransom was neither rampant nor on the increase in Singapore; (5) as two of the appellants were armed with pistols and one with a dagger, it was appropriate to impose a sentence of caning on all the accused.

Digest :

Sia Ah Kew & Ors v Public Prosecutor [1974] 1 MLJ 125 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Kulasekaram JJ).

406 Liquors Revenue Ordinance (Singapore) -- ss 28(1), 83(1)

4 [406] CRIMINAL LAW Liquors Revenue Ordinance (Singapore) – ss 28(1), 83(1) – Possession of dutiable liquor – Forfeiture of motor car – Meaning of 'or conveyances' – Discretion of magistrate – Liquors Revenue Ordinance (Cap 225), ss 28(1) and 83(1) – Possession of dutiable liquor – Forfeiture of motor car – Construction of statutes – The ejusdem generis rule – Criminal Procedure Code, s 182(f).

Summary :

The appellant and another accused were convicted of being in possession of dutiable liquor, an offence under s 28(1) of the Liquors Revenue Ordinance (Cap 225). The evidence was that at 5pm on 1 July 1946, two revenue officers took up their position in a back lane between Angus Street and Fisher Street in order to wait for a certain car, No S 4819, which it was anticipated would contain dutiable liquor. At about 5.30pm, car No S 4819 duly arrived. Before the revenue officers could reach the car, a woman jumped out of the back seat and escaped. The car then started off immediately and collided into a wall. In the car, when the revenue officers came up, were the driver (in the driving seat) and the appellant in the back seat. On the floor at the back of the car was a gunny sack. The appellant had his feet on the gunny sack, which on being opened was found to contain a motor car tube containing samsu. A further search revealed two more tubes containing samsu behind the cushion in the back seat. The learned magistrate convicted the appellant and the driver and also ordered the liquor and the motor car to be confiscated. The appellant appealed against his conviction and sentence and against the order for forfeiture of the motor car.

Holding :

Held: (1) the facts showed that the appellant was only an innocent passenger in the car and therefore the magistrate should have acted under s 182(f) of the Criminal Procedure Code and acquitted him without calling upon him to make his defence; (2) as there is no common feature in the words preceding 'or conveyances' in s 83(1) of the Liquors Revenue Ordinance and no common genus or category to which they all belong, the ejusdem generis rule has no application to the subsection and therefore the word 'conveyances' must be given its full and natural meaning, which includes motor cars; (3) under s 83(1) of the Liquors Revenue Ordinance, the magistrate had no discretion and was bound to order the forfeiture of the car which the revenue officers had seized.

Digest :

Tai Theong & Anor v R [1947] MLJ 11 High Court, Singapore (Brown J).

407 Liquors Revenue Ordinance (Straits Settlements) -- s 28

4 [407] CRIMINAL LAW Liquors Revenue Ordinance (Straits Settlements) – s 28 – Possession of dutiable liquor – Meaning of 'possession' – Knowledge necessary – Liquors Revenue Ordinance (Cap 225), s 28 – Possession of dutiable liquor without knowledge.

Summary :

Held: the mere fact that a parcel found to contain dutiable liquor handed by a rickshaw puller to the appellant's daughter, was seized by a revenue officer before she had time to examine its contents, unaccompanied by any circumstance indicating that the girl or the appellant knew it was liquor or intended to retain it, does not constitute possession within the meaning of, and therefore is not sufficient to support a conviction under, s 28 of the Liquors Revenue Ordinance (Cap 225). A person is not guilty of the offence of possession if he is not aware of the possession. There must be some evidence from which it can reasonably be inferred that the accused knew the general nature of the thing alleged to be in his possession, such as length of time he had the object, evidence that he was expecting it, evidence of course of business, or any other evidence from which an inference of the general nature of the thing can be inferred.

Digest :

Chiah Tian v R [1937] MLJ 105 High Court, Straits Settlements (McElwaine CJ).

408 Local Government Ordinance (Singapore) -- s 213

4 [408] CRIMINAL LAW Local Government Ordinance (Singapore) – s 213 – Licensing of stalls – Delay in granting licence – Inference that bribe expected – General observations on corrupt practices – Sentence – Bribery and corruption – Sentence – Circumstances to be taken into account in assessing.

Summary :

Held: it is essential not only that an officer should be incorruptible, but he should manifestly appear to be incorruptible.

Digest :

Wong Cheong Kim v Deputy Public Prosecutor [1962] MLJ 304 High Court, Singapore (Rose CJ).

Annotation :

[Annotation: In this case, Rose CJ made general observations on corrupt practices and their relevance to sentences on conviction, and the need to distinguish between various forms. In R v Teo Cheng Lian [1949] MLJ 170, Gordon-Smith J said that 'Bribery and corruption of officialdom is like a cancer which may grow and destroy the whole body....Operative treatment at the commencement may or may not be a cure but it is worth trying. Like Caesar's wife, officials (including judges) must be above suspicion, and lack of confidence in this respect strikes at the whole foundation of good government.']

409 Local Government Ordinance (Singapore) -- s 248

4 [409] CRIMINAL LAW Local Government Ordinance (Singapore) – s 248 – Nuisance order – Whether extent of repairs justified a closing order – Test of 'unfit for human habitation' – Local Government Ordinance 1957, s 248(3) and (7) – Abatement order – Whether extent of repairs justified a closing order – Test of 'unfit for human habitation'.

Summary :

Held: under s 248(7) of the Local Government Ordinance 1957, whether a house is unfit for human habitation does not depend on whether it is capable of repair. The relevant question to be decided is whether the nature and extent of the repairs that are necessary are reasonably justifiable, having regard to the expense involved in relation to the value of the property.

Digest :

Kweh Kim Hock v City Council of Singapore [1961] MLJ 327 High Court, Singapore (Rose CJ).

410 Local Government Ordinance (Singapore) -- s 248

4 [410] CRIMINAL LAW Local Government Ordinance (Singapore) – s 248 – Nuisance order – Whether magistrate competent to vary abatement order to that of closing order at subsequent hearing

Summary :

Held: a magistrate has no jurisdiction to make a further order at a subsequent time upon a fresh summons regarding the same default under s 284 of the Local Government Ordinance when at the original hearing he had made an abatement order under that section. These matters being quasi-criminal in their nature, the normal rule as to strict construction of a penal statute should apply and ambiguity should be resolved in favour of the subject.

Digest :

Re Sim Khoon Seng's Application [1963] MLJ 9 High Court, Singapore (Rose CJ).

411 Merchandise Marks Ordinance (Malaysia) -- ss 12, 30

4 [411] CRIMINAL LAW Merchandise Marks Ordinance (Malaysia) – ss 12, 30 – Possessing goods with counterfeit trade mark for the purpose of trade – Compounding of offence – Plea of guilty – Wrong procedure

Summary :

The defendants had been charged for an offence under s 12 of the Merchandise Marks Ordinance 1950 ('the Ordinance'). At the hearing, counsel for defendants informed the court that the three defendants were agreeable to compounding the case under s 30 of the Ordinance on certain terms, which included that the defendants should plead guilty and that the prosecution should not press for a deterrent sentence. Accordingly the defendants pleaded guilty, the facts were given and the defendants were acquitted and discharged.

Holding :

Held: (1) the procedure adopted in this case was not that which should be done where it is intended to compound a case. The practice is for the prosecutor to apply to the court for permission to compound the case or to inform the court that the parties have come to a settlement; (2) as the defendants had pleaded guilty, the magistrate was bound under s 182(m)(ii) of the Criminal Procedure Code (Cap 21) to pass sentence according to law: the order of acquittal and discharge is contrary to s 182(m)(ii) of the Criminal Procedure Code and is further not authorized under s 30(4) of the Ordinance, which merely says that the compounding, if allowed, should have the effect of an acquittal, so that if proceedings should be subsequently instituted upon the same facts the defendants could plead 'autrefois acquit'; (3) in the circumstances, the order of acquittal and discharge must be set aside and instead, the defendants bound over under s 290 of the Criminal Procedure Code to be of good behaviour for one year.

Digest :

Re Chang Cheng Hoe & Ors [1966] 2 MLJ 252 High Court, Penang (Ong Hock Sim J).

412 Merchant Shipping Ordinance (Malaysia) -- s 313(b)

4 [412] CRIMINAL LAW Merchant Shipping Ordinance (Malaysia) – s 313(b) – Alteration of 'load line mark' – Whether mens rea excluded – Actus reas not proved – Merchant shipping – Alteration of 'load line mark' – Merchant Shipping Ordinance 1952, s 313(b) – Whether excludes mens rea.

Summary :

The accused, as the registered owner of a boat, was convicted in the magistrate's court at Penang of altering the load line mark on the said boat, an offence punishable under s 313(b) of the Merchant Shipping Ordinance 1952 ('the Ordinance'), and was sentenced to a fine of RM450. The learned magistrate, however, considered that an important point of law affecting the public interest required decision, and remitted the matter to the High Court under the provision of s 317 of the Criminal Procedure Code. The question for the opinion of the High Court was whether the Legislature has, by virtue of the wording of s 313(b) of the said Ordinance by necessary implication excluded mens rea.

Holding :

Held: (1) the legislature has not by the wording of s 313(b) of the Ordinance excluded mens rea by necessary implication; (2) in this case, it was not proved at the hearing where, when and by whom the load line of the boat had been so altered, and there was no finding of fact by the learned magistrate on these points. As no actus reus had been proved, the question of exclusion of mens rea by necessary implication did not arise; (3) the conviction and sentence must therefore be quashed.

Digest :

Public Prosecutor v Lim Teik Heng [1962] MLJ 364 High Court, Penang (Hepworth J).

413 Mining Enactment (Malaysia) -- s 90

4 [413] CRIMINAL LAW Mining Enactment (Malaysia) – s 90 – 'Work on land by ground sluicing' – Purpose of mining must be proved – Penal statute – Construction – Benefit of any doubt.

Summary :

The appellants were charged that they did 'work on land by ground sluicing' in contravention of s 90 of the Mining Enactment (FMS Cap 147). It appeared that when the Inspector of Mines visited the land, he found the four appellants at work. Two of them were holding monitors and the other two were sluicing the land. The appellants in their defence stated that they were trying to make a pond by use of the monitors and by sluicing the land.

Holding :

Held: the words 'work on land by ground sluicing' in s 90 have to be read in the context of the Mining Enactment. In this case, the prosecution had failed to prove that the sluicing of the land and the use of monitors were for the purpose of mining and therefore the conviction of the appellants must be set aside.

Digest :

Chye Chong & Ors v Public Prosecutor [1975] 1 MLJ 214 High Court, Ipoh (Sharma J).

414 Minor Offences Act (Malaysia) -- s 14

4 [414] CRIMINAL LAW Minor Offences Act (Malaysia) – s 14 – Using offensive words – Whether prosecution evidence had proved offensive words were uttered with intent to provoke or which was likely to occasion breach of peace

Summary :

The respondent was charged with uttering offensive words to a police officer, Inspector Murugesan ('Murugesan'), which was likely to occasion a breach of the peace, an offence punishable under s 14 of the Minor Offences Act 1955 ('the Act'). At the time, the respondent uttered the offensive words, Murugesan was in police uniform and there were three other police personnel with him. No members of the public were present. The respondent did not attempt to beat Murugesan. The magistrate acquitted the respondent without calling for his defence on the ground that the words were not uttered with the intention to provoke a breach of the peace. The prosecution appealed to the High Court against the respondent's acquittal.

Holding :

Held, dismissing the appeal: (1) the prosecution has to prove three ingredients of the offence under s 14 of the Act, namely that the accused has uttered the words complained of, the words uttered are abusive in nature and the words are uttered with intent to provoke a breach of the peace or the words uttered are likely to occasion a breach of the peace. In respect of the third ingredient of the offence under s 14 of the Act, it is a subjective test as to whether the words are uttered with intent to provoke a breach of the peace and it is an objective test in ascertaining whether the words uttered are likely to occasion a breach of the peace; (2) the evidence in this case merely proved the first two ingredients of the offence with which the respondent was charged.

Digest :

Public Prosecutor v Don bin Abdullah Criminal Appeal No 41-205-91 High Court, Penang (Vincent Ng JC).

Annotation :

[Annotation: The judgment was delivered in Bahasa Malaysia.]

415 Minor Offences Act (Singapore) -- s 14(f)

4 [415] CRIMINAL LAW Minor Offences Act (Singapore) – s 14(f) – Using abusive words – Particulars of charge – Charge – Using abusive words – Minor Offences Act (Cap 102), s 14(f).

Summary :

The appellant was convicted under the Minor Offences Act (Cap 102) on the following charge: 'You DEB Rajapaksha that you on 14.7.71 at about 10am at High Street, Singapore, did use abusive words to one KM Oli Mohamed and that you have thereby committed an offence under s 14(f), Cap 102, 1970 Ed.'

Holding :

Held, allowing the appeal: (1) the charge was bad as the essential ingredient of the charge was not contained in it; (2) merely using abusive words is not an offence under any law: an accused person must be charged under that particular subsection of the Minor Offences Act with either using abusive words with intent to provoke a breach of the peace, or, if it was a case where the abusive words were such whereby they were likely to cause provocation, those words must be in the charge.

Digest :

Rajapaksha v Public Prosecutor [1974] 2 MLJ 5 High Court, Singapore (Wee Chong Jin CJ).

Annotation :

[Annotation: Now see s 13(f) of the Minor Offences Act (Cap 184, 1985 Ed).]

416 Minor Offences Act (Singapore) -- ss 13(f), 23

4 [416] CRIMINAL LAW Minor Offences Act (Singapore) – ss 13(f), 23 – Breach of the peace – Intention to cause breach of the peace – Meaning of 'breach of the peace'

Summary :

PW1, a policeman, saw A and another male Indian quarrelling loudly. They smelt strongly of liquor. When PW1 asked to check their particulars, A got angry and said 'fuck you' to him. PW1 then arrested A, who was charged with behaving in a disorderly manner by shouting at the top of his voice contrary to s 23 of the Minor Offences Act (Cap 184) and with using abusive words to PW1 with intent to provoke a breach of the peace contrary to s 13(f) of the Minor Offences Act (Cap 184). A pleaded guilty to the first charge but his plea on the second charge was qualified. The magistrate accordingly directed A to stand trial on the second charge.

Holding :

Held, dismissing the second charge: (1) the prosecution had to prove that when A uttered the words in question, he did so with the intention of causing apprehension of acts of violence or with the intention of provoking such acts. On the facts of the case, there was no such intention. A was only expressing his anger and annoyance at PW1. He quietly accompanied PW1 when arrested. There was no violence or cause for fear of violence. A was accordingly acquitted on the second charge; (2) on the first charge of disorderly behaviour, A was fined S$400.

Digest :

Public Prosecutor v Vardarajan [1990] 2 MLJ xlii Magistrate's Court, Singapore (S Surenthiraraj, Magistrate).

417 Minor Offences Enactment (Brunei) -- s 24(e)

4 [417] CRIMINAL LAW Minor Offences Enactment (Brunei) – s 24(e) – Possession of housebreaking implements – Entry upon property of another with intent to commit theft – Prima facie case established

Digest :

Public Prosecutor v Chong Ing Chu [1984] 1 MLJ 391 High Court, Bandar Seri Begawan (Garcia J).

See criminal law, Vol , para 685.

418 Minor Offences Enactment (Malaysia) -- s 14(1)

4 [418] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 14(1) – Carrying another person on a one-seater bicycle – 'Pedal bicycle seated for one person' – Minor Offences Enactment (Cap 46) s 14(1) – Meaning of expression 'pedal bicycle seated for one person'.

Summary :

The respondent was charged under s 14(1) of the Minor Offences Enactment (Cap 46) with riding a bicycle and carrying another person on the carrier of his bicycle. He was acquitted by the magistrate on the ground that the carrier of the bicycle was a seat. The Public Prosecutor appealed and the appeal was referred to the Court of Appeal under s 53 of the Courts Enactment (Cap 2).

Holding :

Held: the acquittal by the magistrate was wrong because the expression 'pedal bicycle seated for one person' in s 14(1) of the Minor Offences Enactment means a pedal bicycle designed to carry one person on a seat, and the carrier did not convert a one-seater bicycle into a two-seater bicycle.

Digest :

Public Prosecutor v Chong Seng [1937] MLJ 15 Court of Appeal, Federated Malay States (Jessel Ag CJ, Whitley and Aitken JJ).

419 Minor Offences Enactment (Malaysia) -- s 25

4 [419] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 25 – Disorderly behaviour in public places – Alternative charge under the Penal Code – Whether irregularity curable

Digest :

Supramaniam & Ors v Public Prosecutor [1939] MLJ 229 High Court, Federated Malay States (Murray-Aynsley J).

See CRIMINAL LAW, Vol 4, para 805.

420 Minor Offences Enactment (Malaysia) -- s 28(i)

4 [420] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 28(i) – Armed with an offensive weapon – 'Offensive weapon' – Parang is not an offensive weapon

Summary :

The appellant was charged with and convicted of the following offence: 'That you... did go armed with an offensive weapon, to wit, a long parang, contrary to the provisions of s 28(i) of the Minor Offences Enactment (Cap 46).'

Holding :

Held: a parang cannot be regarded as an offensive weapon within the meaning of the section. To hold otherwise would render liable to punishment most of the agriculturists in Malaya. An offensive weapon in the section means an instrument primarily intended for other purposes.

Digest :

Sarban Singh v Public Prosecutor [1941] MLJ 210 High Court, Federated Malay States (Poyser CJ).

421 Minor Offences Enactment (Malaysia) -- s 32

4 [421] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 32 – Dealing in secondhand goods without a licence – 'Dealing' – Goldsmith who buys secondhand jewellery

Summary :

held: a goldsmith who buys secondhand jewellery to melt down and sell in some other form deals in secondhand goods within the meaning of s 32 of the Minor Offences Enactment 1920.

Digest :

Tan Weng Chee v Public Prosecutor [1925] 5 FMSLR 125 High Court, Federated Malay States (Farrer-Manby JC).

422 Minor Offences Enactment (Malaysia) -- s 32

4 [422] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 32 – Dealing in secondhand goods without a licence – 'To deal in' – Goldsmith who buys secondhand jewellery – Form of articles when sold immaterial

Summary :

Toh Lim Poh carried on the trade of a goldsmith in Kuala Lumpur; he had no licence to deal in secondhand goods. On 25 March 1925, between 11 am and noon, his firm bought a pair of secondhand gold bangles, apparently for the purpose of being melted down and manufactured into other articles for sale. When his shop was subsequently searched by the police, other gold articles were found in a drawer, five of which were admittedly secondhand. He was charged with dealing in secondhand goods without licence and convicted. Toh Lim Poh appealed and the appeal was reserved under s 57 of the Courts Enactment 1918 for the decision of the Court of Appeal.

Holding :

Held: 'to deal in' can mean 'to buy', and a goldsmith who buys secondhand jewellery can be convicted under this section and it does not matter in what form the articles are sold.

Digest :

Toh Lim Poh v Public Prosecutor [1925] 6 FMSLR 10 High Court, Federated Malay States (Woodward CJ).

423 Minor Offences Enactment (Malaysia) -- s 34(f)

4 [423] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 34(f) – Loitering – Sentence – Minor Offences Enactment (Cap 46), s 34(f) – Charge of loitering – Sentence.

Summary :

The respondent was found loitering on the Klang Road at about 3.15am on 30 July 1952. He pleaded guilty to the offence contrary to s 34(f) of the Minor Offences Enactment (Cap 46) and was fined RM5. The learned magistrate stated that he took into consideration the fact that the respondent had been in the lock-up for a month and that no previous conviction had been brought to the notice of the court, and he considered that a further term of imprisonment would not be justifiable.

Holding :

Held: it was not open to the magistrate to pass a sentence of a fine under s 34 of the Minor Offences Enactment.

Digest :

Public Prosecutor v Cheng Fah [1955] MLJ 63 High Court, Kuala Lumpur (Wilson J).

Annotation :

[Annotation: Section 34(f) of the Minor Offences Enactment (Cap 46) reads: 'any person found between the hours of 11pm and 6am loitering on any public road or private property and not giving a satisfactory account of himself may be taken into custody by any police officer without a warrant, and shall be liable to imprisonment for six months...'.]

424 Minor Offences Enactment (Malaysia) -- s 35(i), (iii)

4 [424] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i), (iii) – Possession of property suspected stolen or fraudulently obtained – Accused must be in actual possession or actually conveying – Not possible to alter conviction to one under s 35(iii) – Minor Offences Enactment, s 35(i) – Possession of property reasonably suspected of being stolen or fraudulently obtained – Accused must be actually found in possession or found actually conveying – Whether conviction under s 35(i) of the Minor Offences Enactment can be altered to one under s 35(iii) where accused is not actually found in possession.

Summary :

In this case, a sergeant major of police, on information received, went to the premises of a bus company in Kajang and there found four motor lorry tyres, two nearly new and two retreaded. The director of the bus company later informed the sergeant major that he had purchased the tyres from the accused. The accused was then charged for being in possession of the tyres, being property reasonably suspected of being stolen. At the trial before the magistrate, the accused gave evidence on his own behalf and stated that he had sold these tyres to the bus company for $500, that he had driven a lorry belonging to his brother during the Japanese occupation and that when the Japanese insisted on purchasing the lorry, he managed to replace the good lorry tyres with old wornout tyres, and that is how he came to be in possession of these four tyres which were, admittedly, practically unused. The accused appealed against his conviction under s 35(i) of the Minor Offences Enactment (Cap 46).

Holding :

Held: (1) under s 35(i) of the Minor Offences Enactment, the basis of the right of the police to call for an explanation of the accused's possession is that the accused is actually found in possession or found actually conveying and that as in this case the accused was not found in possession of the tyres, the subsection was wrongly invoked and the conviction under the sub-section was wrong; (2) it was not possible to alter the conviction to one under s 35(iii) as (a) had the accused been tried for an offence against sub-s (iii), his statements made to the police would have been inadmissible in evidence, and (b) the offences under the two subsections are so different in character that it by no means follows that the court which is satisfied under the one will necessarily be satisfied on the same evidence under the other, nor is it certain that the defence put forward by the accused would have been the same.

Digest :

Chong Kon Lip v Public Prosecutor [1946] MLJ 165 High Court, Malayan Union (Spenser-Wilkinson Ag J).

425 Minor Offences Enactment (Malaysia) -- s 35(i), (iv)

4 [425] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i), (iv) – Possession of property suspected stolen or fraudulently obtained – 'Possession' – Minor Offences Enactment (Cap 46) s 35(i), (ii), (iii), (iv) – Defence – Meaning of 'possession'.

Summary :

In this case, an inspector found in the house of the respondent a number of articles which might reasonably be suspected of being stolen, but at the conclusion of the case for the prosecution the magistrate acquitted and discharged the respondent without calling for his defence, relying on R v Kwek Chang Seng 6 SSLR 35, which was quoted with approval in the case of Yee Ngok v Public Prosecutor [1947] MLJ 136.

Holding :

Held: sub-s (iv) of s 35 of the Minor Offences Enactment (Cap 46) was not brought to the notice of the learned judge in the case of Yee Ngok v Public Prosecutor. Subsection (iv) of s 35 definitely states that the word 'possession' in sub-ss (i), (ii) and (iii) includes 'possession in a house, building, ship, vessel, boat or other place as well as possession in a public road or place'.

Digest :

Public Prosecutor v Marimuthu [1948] MLJ 194 High Court, Kuala Lumpur (Russell J).

426 Minor Offences Enactment (Malaysia) -- s 35(i)

4 [426] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i) – Possession of property suspected stolen or fraudulently obtained – Acquittal from a previous charge under the Penal Code – Autrefois acquit

Digest :

Public Prosecutor v Surjan Singh [1939] MLJ 109 High Court, Federated Malay States (Aitken J).

See CRIMINAL LAW, Vol 4, para 1252.

427 Minor Offences Enactment (Malaysia) -- s 35(i)

4 [427] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i) – Possession of property suspected stolen or fraudulently obtained – Character of accused – Minor Offences Enactment (Cap 46) s 35(i) – Possession of property reasonably suspected of being stolen – Evidence – Accused's character.

Summary :

The appellant, a well known public character from the police's point of view, was found trying to pawn a paper umbrella worth a few cents. He was arrested, tried and convicted under s 35(i) of the Minor Offences Enactment (Cap 46), which reads as follows: 'Any person who has in his possession or conveys in any manner anything which may be reasonably suspected of being stolen or fraudulently obtained shall, if he fails to account satisfactorily how he came by the same, be liable to a fine of fifty dollars, or to imprisonment for three months.'

Holding :

Held: the character of the accused, by itself, is not sufficient to raise reasonable grounds for suspicion that the property has been stolen.

Digest :

Ali v Public Prosecutor [1940] MLJ 276 High Court, Federated Malay States (Murray-Aynsley J).

428 Minor Offences Enactment (Malaysia) -- s 35(i)

4 [428] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i) – Possession of property suspected stolen or fraudulently obtained – Charged alternatively under Penal Code for dishonestly receiving stolen property – Charge defective

Digest :

Banta Singh v Public Prosecutor [1941] MLJ 154 High Court, Federated Malay States (Howes J).

See CRIMINAL LAW, Vol 4, para 1225.

429 Minor Offences Enactment (Malaysia) -- s 35(i)

4 [429] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i) – Possession of property suspected stolen or fraudulently obtained – No actual possession – 'Possession' – Prima facie case established – Minor Offences Enactment, s 35(i) – Accused originally charged under s 411 of the Penal Code for dishonestly retaining stolen property – Charge amended to one under s 35(i) of the Minor Offences Enactment at end of prosecution case – Accused not found in possession of property.

Summary :

In this case, the accused was originally charged under s 411 of the Penal Code for dishonestly retaining stolen property, to wit, a new gearbox belonging to the PWD. At the end of the prosecution case, the district judge held that there was not sufficient evidence that the property in question was stolen property and amended the charge to one under s 35(i) of the Minor Offences Enactment (Cap 46). The accused was convicted on this charge and sentenced to three months' rigorous imprisonment. He appealed against sentence. The accused was not found in the actual possession of the property, which was found in the possession of a Malay, who gave evidence at the trial, saying that he had been asked by the accused to sell the property. This witness also said that he had previously seen the property in the accused's truck and that he had taken it to the accused's house at the request of the accused.

Holding :

Held: (1) as the accused was not found in actual possession of the property, the conviction under s 35(i) of the Minor Offences Enactment cannot stand; (2) further, possession under s 35(i) of the Minor Offences Enactment only applies to possession in the streets or in a public place and not to possession in a house; (3) on the facts, there was evidence which, if believed, established a prima facie case that the gearbox was stolen property and that it was retained by the appellant and therefore a new trial must be ordered.

Digest :

Yee Ngok v Public Prosecutor [1947] MLJ 136 High Court, Malayan Union (Willan CJ).

Annotation :

[Annotation: R v Kwek Chang Seng (1900) 6 SSLR 35 followed.]

430 Minor Offences Enactment (Malaysia) -- s 35(i)

4 [430] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i) – Possession of property suspected stolen or fraudulently obtained – Suspicion – Grounds for suspicion – Suspicion must be reasonable – Minor Offences Enactment (Cap 46) s 35(i) – Fraudulent possession of property – Property reasonably suspected of being stolen – Duty of prosecution to prove to the satisfaction of the court that there exist reasonable grounds for suspicion.

Summary :

Held: under s 35(i) of the Minor Offences Enactment (Cap 46), it is for the court to be satisfied that the circumstances were such that the police officer had grounds for suspicion that the property in the accused's possession was stolen property and that such suspicion was reasonable. Unless those conditions can be shown to have been fulfilled, the accused should not be called upon for an explanation.

Digest :

Munusamy v Public Prosecutor [1937] MLJ 93 High Court, Federated Malay States (Terrell Ag CJ).

431 Minor Offences Enactment (Malaysia) -- s 35(i)

4 [431] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i) – Possession of property suspected stolen or fraudulently obtained – Suspicion – Police officer must have reasonable suspicion – Minor Offences Enactment (Cap 46), s 35(i) – Possession of property stolen or fraudulently obtained – Reasonable suspicion by the police – Application of s 113 of the Criminal Procedure Code (Cap 6).

Summary :

Held: a police officer acting under s 35(i) of the Minor Offences Enactment (Cap 46) must have reasonable suspicion at the time he so acts that the property in possession of the accused has been stolen or fraudulently obtained. Any explanation given by the accused to the police can be used in evidence against him because the provisions of s 113 of the Criminal Procedure Code (Cap 6) have no application to a prosecution under s 35 of the Minor Offences Enactment.

Digest :

Tan Hoe Seng v Public Prosecutor [1936] MLJ 273 High Court, Federated Malay States (Aitken J).

432 Minor Offences Enactment (Malaysia) -- s 35(i)

4 [432] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35(i) – Possession of property suspected stolen or fraudulently obtained – Suspicion – Possession of article must be a suspicious circumstance – Minor Offences Enactment (Cap 46), s 35(i) – Theft – Insufficient evidence of – Charge amended to one of fraudulent possession of property – Whether amendment permissable.

Summary :

Held: where a prosecution for theft breaks down for lack of or insufficient evidence, it is improper for the magistrate to amend the charge to one of fraudulent possession of the stolen property under s 35(i) of the Minor Offences Enactment (Cap 46). To succeed on the latter charge, it must be shown that the possession of the article alleged to have been stolen is a suspicious circumstance within the meaning of the section, but possession of an article in common use such as an oil drum is not such a suspicious circumstance where there is no evidence that the article possessed is the one stolen. If from the circumstances alleged against an accused it is impossible for the person in whose mind suspicions are aroused to say that he suspects that the goods were stolen and not fraudulently obtained or vice versa, a charge under s 35(i) of the Minor Offences Enactment is not maintainable.

Digest :

Gurunathan Chettiar v Public Prosecutor [1939] MLJ 229 High Court, Federated Malay States (Murray-Aynsley J).

433 Minor Offences Enactment (Malaysia) -- s 35

4 [433] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 35 – Possession of property suspected stolen or fraudulently obtained – Two other charges under the Criminal Procedure Code and Penal Code – Charge under the Criminal Procedure Code should be heard last

Digest :

Indut v Public Prosecutor [1939] MLJ 129 High Court, Federated Malay States (Murray-Aynsley J).

See CRIMINAL LAW, Vol 4, para 1234.

434 Minor Offences Enactment (Malaysia) -- s 4(iv)

4 [434] CRIMINAL LAW Minor Offences Enactment (Malaysia) – s 4(iv) – Letting off fireworks without a licence – Liability of occupier of house from or in which fireworks are let off – 'Let off'

Summary :

Held: under s 4(iv) of the Minor Offences Enactment, the occupier of a house is responsible only for preventing the firing of crackers, or the discharging of fireworks upon or from his premises by any person over whom he can exercise control,. It would be a great hardship to the occupier of the house if the terms of the subsection are construed strictly, as then he would be liable for the act of any trespasser who chooses to set fire to or discharge fireworks from his house or the verandah of his house.

Digest :

Chong Song Fong v Public Prosecutor [1932] 1 MC 148 Court of Appeal, Federated Malay States (Thorne Ag CJ).

435 Minor Offences Enactment (Straits Settlements) -- s 35(1)

4 [435] CRIMINAL LAW Minor Offences Enactment (Straits Settlements) – s 35(1) – Possession of goods reasonably suspected stolen or fraudulently obtained – Possession must be in a public place

Summary :

Held: s 35(1) of the Minor Offences Enactment 1856 which enacts that whoever has in his possession, or conveys in any manner, anything which may be reasonably suspected of being stolen or fraudulently obtained, shall, if he fail to account satisfactorily how he came by the same, be liable to a penalty not exceeding $50 or to imprisonment with or without hard labour for any term not exceeding three months only applies to possession in the streets or a public place, and not to possession in a house.

Digest :

R v Kwek Chang Seng [1899] 6 SSLR 35 Court of Appeal, Straits Settlements (Cox CJ, Law and Leach JJ).

Annotation :

[Annotation: See now s 37 of the Minor Offences Act (Cap 187, 1985 Ed). It should be noted that s 38(4) enacts that the word 'possession' in sub-ss (1), (2) and (3) includes possession in a house, building, ship, vessel, boat or other place as well as possession in a public road or place.]

436 Minor Offences Ordinance (Malaysia) -- s 14

4 [436] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 14 – Using threatening, abusive and insulting words provoking a breach of peace – Whether charge bad for duplicity – Charge of using threatening, abusive and insulting words whereby a breach of the peace was likely to be occasioned – Whether charge bad for duplicity – Contradictions and discrepancies in evidence – Matter of credibility for trial judge – Minor Offences Ordinance 1955, s 14.

Summary :

In this case, the appellant had been convicted on a charge of using threatening, abusive and insulting words on a police officer whereby a breach of the peace was likely to be occasioned, an offence under s 14 of the Minor Offences Ordinance 1955. On appeal, it was argued (a) the charge was bad for duplicity; and (b) in view of the contradictions and discrepancies in the evidence of the complainant, he was not a witness worthy of credit on whose evidence it would be safe to found a conviction.

Holding :

Held: (1) s 14 of the Minor Offences Ordinance 1955 creates one offence, that of conduct tending to provoke a breach of the peace. The charge in this case was not bad for duplicity; (2) the question in regard to contradictions and inconsistencies in the evidence was basically one of credibility and was essentially one for the trial judge. The appeal court could not therefore interfere with the decision of the trial judge.

Digest :

Triptipal Singh v Public Prosecutor [1974] 1 MLJ 59 High Court, Penang (Chang Min Tat J).

437 Minor Offences Ordinance (Malaysia) -- s 28(k)

4 [437] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 28(k) – Loitering with intent to commit an offence – Charge defective – Minor Offences Ordinance 1955, s 28(k) – Loitering with intent to commit an offence – Necessity to prove that person is a suspected person or reputed thief – Charge.

Summary :

In this case, the accused was charged as follows: 'That you on 10.11.56 at about 1.30am at Batu Lane, Kuala Lumpur, were found loitering in a public place with intent to commit a seizable and non-bailable offence and that you have thereby committed an offence punishable under s 28(k) of the Minor Offences Ordinance 1955.' It was argued on appeal that the charge was defective as it was not alleged that the accused was a suspected person.

Holding :

Held: the charge in this case was defective and therefore the conviction must be set aside.

Digest :

Chan Chong v Public Prosecutor [1957] MLJ 246 High Court, Kuala Lumpur (Sutherland J).

438 Minor Offences Ordinance (Malaysia) -- s 29(1), (5)

4 [438] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 29(1), (5) – Possession of property suspected stolen or fraudulently obtained – Previous convictions – Notice of enhanced penalties – Charge amended – Possession of property reasonably suspected of being stolen or fraudulently obtained – Previous convictions – Conviction and sentence – Minor Offences Ordinance 1955, s 29(1) and (5).

Summary :

This revision arose on the application of the prosecutor for the purpose of regularizing the conviction and sentence of the prisoner who was charged with and convicted of the offence of possession of property reasonably suspected of being stolen or fraudulently obtained under s 29(1) of the Minor Offences Ordinance 1955 ('the Ordinance') and sentenced to four months' imprisonment. Under s 29(1), the maximum sentence for the offence is three months' imprisonment or a fine not exceeding RM100 or both. In this case, the prisoner had admitted to seven previous convictions, which rendered him liable to the enhanced penalty provided by s 29(5) of the Ordinance. On revision, the learned judge directed that the conviction as recorded against the prisoner under s 29(1) be expunged from all police and prison records and a conviction under s 29(5) be substituted therefor. In the course of his judgment, the judge dealt with the practical question as to the proper subsection which an offender with previous convictions should be charged. To charge him under s 29(5) would be tantamount to disclosing to the magistrate the fact of his previous convictions, which would be clearly undesirable if the offender claims trial on the charge. On the other hand, if he is charged under s 29(1) and pleads guilty, can his plea be then recorded as being made under s 29(5)? The learned judge suggested that the proper course would be to serve upon the accused, contemporaneously with the charge, a notice to the following effect: 'Take notice that at your trial on the charge annexed hereto under s 29(1) of the Minor Offences Ordinance 1950, you are liable, upon conviction, to the enhanced penalties provided by s 29(5) of the said Ordinance by reason of the fact that you have been previously convicted of an offence punishable under this section (or Chapter XII or Chapter XVII of the Penal Code)'.

Digest :

Re Mat Junus bin Ridu [1959] MLJ 129 High Court, Penang (Rigby J).

439 Minor Offences Ordinance (Malaysia) -- s 29(1)

4 [439] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 29(1) – Possession of property suspected stolen or fraudulently obtained – Burden of proof of prosecution – Grounds for suspicion – Suspicion must be reasonable

Summary :

This was an appeal from a case where the accused who had a number of previous convictions was convicted and sentenced to one year's imprisonment for having in his possession a fountain pen suspected of having been stolen or fraudulently obtained and of failing to give a satisfactory account as to how he came to be in possession of it, contrary to s 29(1) of the Minor Offences Ordinance 1955.

Holding :

Held: (1) for a prosecution to succeed on a charge under this section, it is first incumbent upon it to satisfy the court beyond reasonable doubt that the police officers had grounds for suspicion at the time of arrest that the property in the possession of the accused was stolen, and second that the suspicion was reasonable; (2) on the facts of this case, the circumstances did not justify a reasonable suspicion. The accused should therefore have been discharged without having his defence called.

Digest :

Woo Hon Weng v Public Prosecutor [1958] 3 MC 143 High Court, Penang (Rigby J).

Annotation :

[Annotation: Munusamy v Public Prosecutor [1937] MLJ 93; [1936] FMSLR 194 followed.]

440 Minor Offences Ordinance (Malaysia) -- s 29(1)

4 [440] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 29(1) – Possession of property suspected stolen or fraudulently obtained – Explanation of accused – Unsatisfactory evidence of prosecution – Fraudulent possession of property – Reasonable suspicion – Explanation of accused – Minor Offences Ordinance 1955, s 29(1).

Summary :

This was an appeal against the conviction of the appellant on a charge of having in his possession six car jacks which according to the charge was reasonably suspected of being stolen and in respect of which he failed to give a satisfactory account of how he came by the same. The goods were found in the appellant's shop and he produced a witness to show that he had bought them from another shop.

Holding :

Held, allowing the appeal: in this case, in view of the unsatisfactory evidence produced by the prosecution, there was no basis for calling, upon the accused to enter on his defence and in any event, the learned magistrate should in this case have accepted the explanation of the accused which could reasonably be true.

Digest :

Tan Kim Lue v Public Prosecutor [1971] 1 MLJ 174 High Court, Malacca (Sharma J).

441 Minor Offences Ordinance (Malaysia) -- s 29(1)

4 [441] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 29(1) – Possession of property suspected stolen or fraudulently obtained – Questions to be asked by magistrate in coming to decision – Minor Offences Ordinance 1955, s 29(1) – Fraudulent possession of property – Question to be asked by the magistrate in coming to a decision.

Summary :

This was an appeal from the decision of the learned magistrate who convicted the appellant for an offence under s 29(1) of the Minor Offences Ordinance 1955.

Holding :

Held: in such cases, there are two questions which have to be decided one way or the other before there could be any decision as to whether the appellant was to be convicted: (1) was the accused carrying something that might be reasonably suspected of being stolen?; (2) if it was something reasonably suspected of being stolen, did he give a satisfactory account of how he came by it? The first question must be answered by the magistrate on a consideration of all the surrounding circumstances. The second question again was for the magistrate to decide in the light of the circumstances as a whole. It was a question for the magistrate as a reasonable prudent man to decide whether or not the explanation given to the police or in court to the magistrate himself was a satisfactory explanation. In this case, the learned magistrate had not made it clear in his grounds of judgment that he did put these questions to himself and therefore an order for retrial was made.

Digest :

Arunasalam Thevar v Public Prosecutor [1956] MLJ 109 High Court, Ipoh (Thomson J).

442 Minor Offences Ordinance (Malaysia) -- s 29(1)

4 [442] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 29(1) – Possession of property suspected stolen or fraudulently obtained – Suspicion – Grounds for suspicion – Suspicion must be reasonable – Possession of suspected stolen property – Suspicion – Minor Offences Ordinance 1955, s 29(1) – Conviction under.

Summary :

Before a conviction can be made under s 29(1) of the Minor Offences Ordinance 1955, it must be proved in the first place that the property in possession of which the accused person is found is something 'which may be reasonably suspected of being stolen'. That suspicion may attach to the property in a number of ways. It may arise from the nature of the property, as where a beggar is found in possession of a diamond ring. It may arise from the behaviour of the accused person, as where he runs away when approached by a police office. There must, however, be something in the circumstances which gives reasonable ground for suspicion. In this case, the appellant was a man of very bad character with a number of previous convictions. About midnight on 21 January, a police inspector, found a bicycle without its dynamo in Jalan Tallala. For a reason he did not state in evidence, the inspector went straight to the appellant's house where he was found asleep. The inspector asked him where the dynamo of the bicycle was, but the appellant denied all knowledge of this dynamo and the inspector and another police officer then searched the house; they found a motor cycle dynamo at the side of the appellant's bed. The appellant and his brother gave evidence from which it was fairly clear that the appellant's brother had something to do with the theft of the dynamo which was missing from the bicycle found by the police in the street. As regards the motor cycle dynamo which was in fact found in the possession of the appellant, both witnesses agreed that this was given to the appellant by his brother who said he had had it from a friend to be sold.

Holding :

Held: there was nothing inherently suspicious in being in possession of an old dynamo and in fact that dynamo was not the stolen one for which the police were looking.

Digest :

Kuan Hing Wah v Public Prosecutor [1960] MLJ 193 High Court, Kuala Lumpur (Thomson CJ).

443 Minor Offences Ordinance (Malaysia) -- s 29(1)

4 [443] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 29(1) – Possession of property suspected stolen or fraudulently obtained – Suspicion – No grounds for suspicion – Possession of property reasonably suspected of having been stolen – Minor Offences Ordinance 1955, s 29(1) – Possession of transistor radio and silver paper knife – Failure to produce document of title.

Summary :

In this case, the appellant after being questioned by the police led a police officer to a house from where he brought out a 'National' transistor radio and a silver paper-knife which he handed to the police officer. He said that he got these things from a friend, who was unable to produce any document of title. On this he was arrested, charged, and sentenced to three months' imprisonment.

Holding :

Held: the appellant was wrongly convicted. There was nothing inherently suspicious in being in possession of a transistor radio nor was there anything inherently suspicious in being in possession of a silver paper-knife.

Digest :

Abdul Razak v Public Prosecutor [1961] MLJ 105 High Court, Kuala Lumpur (Thomson CJ).

444 Minor Offences Ordinance (Malaysia) -- s 29(1)

4 [444] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 29(1) – Possession of property suspected stolen or fraudulently obtained – Unsatisfactory evidence of prosecution – Explanation of accused – Minor offences – Fraudulent possession of property – Reasonable suspicion – Explanation of accused – Minor Offences Ordinance 1955, s 29(1).

Digest :

Tan Kim Lue v Public Prosecutor [1971] 1 MLJ 174 High Court, Malacca (Sharma J).

See CRIMINAL LAW, Vol 4, para 424.

445 Minor Offences Ordinance (Malaysia) -- s 31

4 [445] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 31 – Armed with an offensive weapon – Mere possession not an offence – Offensive weapon – Offence of going armed with an offensive weapon – Mere possession of offensive weapon not an offence – Credibility of witness – Duty of magistrate – Minor Offences Ordinance (Cap 56), s 31.

Summary :

The appellant appealed against his conviction for an offence of going armed with offensive weapons, to wit, a penknife and metal pipe, an offence under s 31 of the Minor Offences Ordinance (Sarawak Cap 56).

Holding :

Held: the mere possession of an offensive weapon in a public place is not offence; it can only become an offence when it is for otherwise than a lawful purpose.

Digest :

Ling Kai Huat v Public Prosecutor [1965] 1 MLJ 3 High Court, Sibu (Lee Hun Hoe JC).

Annotation :

[Annotation: See also Re Abdul Latiff [1960] MLJ 198. Reference may also be made to the editorial note: 'Possession of Offensive Weapons' in [1956] MLJ xiv.]

446 Minor Offences Ordinance (Malaysia) -- s 31

4 [446] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 31 – Arrest without warrant – When police officer can arrest without a warrant – Seizure of goods of suspect – Improper exercise of powers by police officer

Digest :

Lee Piew v Public Prosecutor [1963] MLJ 94 High Court, Kuala Lumpur (Ong J).

See CRIMINAL LAW, Vol 4, para 835.

447 Minor Offences Ordinance (Malaysia) -- s 33

4 [447] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 33 – Affray in a public place – 'Public place' – Whether a hotel is a public place – Affray – Definition – Public place – Whether hotel can be a public place – Interpretation Ordinance (Sarawak Cap 1), s 3 – Minor Offences Ordinance (Sarawak Cap 56), s 33.

Summary :

This was an appeal by the Public Prosecutor against the acquittal of the respondents who were charged with committing the offence of affray in a hotel. The learned magistrate held that a hotel could not be regarded as a public place and therefore the offence of affray could not be established.

Holding :

Held: (1) the meaning of public place depends to a great extent upon the context and the object of a particular ordinance, and a public place would seem to include a place to which the public are accustomed to resort without being interferred with though there is no legal right to do so; (2) in this case, the learned magistrate should have heard the evidence before deciding that the hotel was not a public place and therefore there must be a new trial; (3) (semble) the definition of 'affray' in the ordinance would appear to conflict with the definition by the House of Lords in Button v Director of Prosecutions [1965] 3 WLR 1131, and therefore should be reconsidered.

Digest :

Public Prosecutor v Chen Geok Len & Anor [1967] 1 MLJ 59 High Court, Sibu (Lee Hun Hoe J).

448 Minor Offences Ordinance (Malaysia) -- s 34(1)

4 [448] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 34(1) – Possession of property suspected stolen or fraudulently obtained – Burden of proof of accused – Where court is in doubt – Minor Offences Ordinance, s 34(1) – Fraudulent possession of property – Burden on accused person – Courts Ordinance 1948, s 34.

Summary :

This was a reference made to the Court of Appeal as a result of a certificate given by the Public Prosecutor under s 34 of the Courts Ordinance 1948. The question asked in the reference was whether in a trial under s 34(1) of the Minor Offences Ordinance, the failure or otherwise of an accused person to account satisfactorily how he came by the property is to be judged by whether what he said in explanation might reasonably have been true and not by whether he was telling the truth.

Holding :

Held: the proper test to be applied in cases of this kind is that laid down in R v Aves [1950] 2 All ER 330, that is where the only evidence on such a charge is that the accused person was found in possession of property recently stolen and the explanation offered is one which leaves the court in doubt as to whether it is true or not, the case has not been proved, and therefore, the accused should be discharged and acquitted.

Digest :

Wang Kai Heng v Public Prosecutor [1951] MLJ 109 Court of Appeal, Federation of Malaya (Foster Sutton CJ, Taylor and Wilson JJ).

449 Minor Offences Ordinance (Malaysia) -- s 34(1)

4 [449] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – s 34(1) – Possession of property suspected stolen or fraudulently obtained – Confession – Evidence – Minor Offences Ordinance, s 34(1) – Settlement to police officer by person suspected of offence under s 34(1) Minor Offences Ordinance that he had taken goods from a godown – Confession – Whether improper admission of such statement can be cured under s 448 of the Criminal Procedure Code – Evidence Ordinance, ss 25, 26 and 168.

Summary :

In this case, the accused had been convicted of being in possession of 9[1/2] yards of cloth which was reasonably suspected of being stolen or fraudulently obtained, contrary to s 34(1) of the Minor Offences Ordinance. The case for the prosecution was that at 8.50pm on 28 June 1946, two police officers of the Singapore Harbour Board Police were on patrol near the Harbour Board Traffic Office. They saw a man walking with something gripped under his armpit, in the direction of gate 5. They flashed their torches on him, and the man ran about 20ft towards the fence which borders Keppel Road. When he reached the fence, he threw the bundle over the fence into Keppel Road. As soon as the man started to run, the two policemen gave chase and while they were giving chase over that distance of 20ft, they kept their torches flashed on to the man all the time. They caught him after he had thrown the bundle over the fence, and the man whom they caught was the accused. One of the police officers recovered the bundle from Keppel Road, and it was found to contain cloth tied in a handkerchief. The accused was asked what he was doing, and he replied that he had taken the cloth from godown 14. The police officer who had questioned the accused went to godown 14, where he found a lot of cloth similar to the cloth contained in the bundle. The accused in his defence denied knowledge of the cloth. He said he was coming out of a lavatory when he heard the noise of someone running and he was arrested. He was convicted and sentenced to six weeks' rigorous imprisonment and he appealed against his conviction and sentence.

Holding :

Held: (1) the accused's statement to the police officer that he had taken the cloth from godown 14 was improperly admitted in evidence, contrary to s 26 of the Evidence Ordinance, as it was a confession made by him while he was in the custody of a police officer; (2) s 488(f) of the Criminal Procedure Code and s 168 of the Evidence Ordinance are applicable to such a case and the appellate court has to consider whether on the facts of the case and assuming that there had been no evidence of the confession, the learned magistrate must inevitably have arrived at the same conclusion as he in fact did; (3) as in this case, it was clear that the learned magistrate must inevitably have convicted the accused upon the evidence of the police officers that they had not lost sight of the accused in their chase of him and without the evidence of the confession, the conviction must be upheld and the appeal be dismissed.

Digest :

Sambu v R [1947] MLJ 16 High Court, Malayan Union (Brown J).

450 Minor Offences Ordinance (Malaysia) -- ss 29(1), 31

4 [450] CRIMINAL LAW Minor Offences Ordinance (Malaysia) – ss 29(1), 31 – Possession of property suspected stolen or fraudulently obtained – Seizure of goods of suspect – Improper exercise of powers by police officer

Digest :

Lee Piew v Public Prosecutor [1963] MLJ 94 High Court, Kuala Lumpur (Ong J).

See CRIMINAL LAW, Vol 4.

451 Minor Offences Ordinance (Singapore) -- s 26(1)

4 [451] CRIMINAL LAW Minor Offences Ordinance (Singapore) – s 26(1) – Carrying of offensive weapon – Vegetable knife – Determination of whether weapon offensive or not – Sentence – Minor Offences Ordinance (Cap 24), s 26(1) – Offensive weapon – Vegetable knife – Circumstances of the case to be taken into consideration in determining whether a weapon is offensive or not.

Summary :

The respondent was charged with carrying an offensive weapon, namely, a knife. He pleaded guilty and was fined S$30 or one month's rigorous imprisonment in default. The learned district judge in his grounds of judgment said, 'He was carrying an ordinary vegetable knife which was a tool of his trade.' It appeared that the respondent was found with the knife concealed on his person at 12.10am in Geylang Serai, where there had recently been an affray between Malays and Dutch soldiers and civilians. The Public Prosecutor appealed on the ground that the sentence was inadequate.

Holding :

Held: (1) whether a weapon is offensive or not is a question of fact depending on the circumstances of each particular case, and there was evidence in this case that the respondent was carrying an offensive weapon; (2) in the circumstances of the case, the penalty imposed was inadequate.

Digest :

Deputy Public Prosecutor v Salamat [1946] MLJ 155 High Court, Singapore (Murray-Aynsley CJ).

452 Minor Offences Ordinance (Singapore) -- s 34(1)

4 [452] CRIMINAL LAW Minor Offences Ordinance (Singapore) – s 34(1) – Possession of property suspected stolen or fraudulently obtained – Construction of section – Meaning of 'fails to account satisfactorily' – Minor Offences Ordinance (Cap 24), s 34(1) – Meaning of 'fails to account satisfactorily' discussed.

Summary :

In this case, the magistrate found that the circumstances in which the goods were found gave rise to a suspicion that the goods in question were being illegally imported.

Holding :

Held: this was not enough to justify conviction under s 34(1) of the Minor Offences Ordinance (Cap 24). Conviction quashed.

Digest :

Ong Seah Thor v R [1951] MLJ 223 High Court, Singapore (Murray-Aynsley CJ).

Annotation :

[Annotation: See now s 37(1) of the Minor Offences Act (Cap 184, 1985 Ed).]

453 Minor Offences Ordinance (Singapore) -- s 34(1)

4 [453] CRIMINAL LAW Minor Offences Ordinance (Singapore) – s 34(1) – Possession of property suspected stolen or fraudulently obtained – Explanation of accused – Minor Offences Ordinance (Cap 24), s 34(1) – Fraudulent possession of property – Onus on accused person.

Summary :

In this case, the learned magistrate convicted the appellant on a charge under s 34(1) of the Minor Offences Ordinance (Cap 24) and in his grounds of judgment said, 'The matter to be decided in this case is whether the explanation of the accused as to his possession of the bicycle was a reasonable and probable explanation, and such that the court was bound to accept his explanation.'

Holding :

Held: this was considerably beyond what was required of an accused person under the section and therefore the conviction cannot stand.

Digest :

Yap Poh Heng v R [1949] MLJ Supp 36 High Court, Singapore (Murray-Aynsley CJ).

454 Minor Offences Ordinance (Straits Settlements) -- s 32

4 [454] CRIMINAL LAW Minor Offences Ordinance (Straits Settlements) – s 32 – Found wandering without explanation – Onus on prosecution

Summary :

Held: before a conviction can be had under s 32 of Ordinance 13 of 1872, for being 'found wandering about without being able to give any satisfactory account of oneself', the prosecution must show that all, and not one or more only, of the conditions mentioned in the section existed.

Digest :

R v Beh Hooie & Anor [1878] 3 Ky 103 High Court, Straits Settlements (Wood J).

455 Minor Offences Ordinance (Straits Settlements) -- s 33(c)

4 [455] CRIMINAL LAW Minor Offences Ordinance (Straits Settlements) – s 33(c) – Servant permitting prostitutes to remain on premises – Liability of employer – Knowledge – Capacity in which prostitutes remained on premises – Ordinance 96 (Minor Offences), s 33(c) – Permitting prostitutes to resort – Act of servant – Liability of employer – Capacity in which prostitutes resorted.

Summary :

Held: the licensee of a cafe is guilty of an offence if his servant in the course of his employment knowingly permits prostitutes to meet or remain in the licensed premises, but it must be proved that the prostitutes were on the premises as prostitutes.

Digest :

R v Mohamed Ali [1933] MLJ 74 High Court, Straits Settlements (Terrell J).

Annotation :

[Annotation: See now Women's Charter (Cap 353, 1985 Ed).]

456 Minor Offences Ordinance (Straits Settlements) -- s 34(1)

4 [456] CRIMINAL LAW Minor Offences Ordinance (Straits Settlements) – s 34(1) – Possession of property suspected stolen or fraudulently obtained – Article in common use – Accused's explanation – Reasonable suspicion – Statements of accused – Criminal Procedure Code, ss 2, 31(1)(d), 5, 121(1), ss 123 and 124 – Minor Offences Ordinance, s 34(1) – Admissibility of statements made to the police – Power of police to investigate.

Summary :

The appellant was convicted under s 34(1) of the Minor Offences Ordinance on a charge of being in possession of a fountain pen of the value of $5, reasonably suspected of being stolen or fraudulently obtained. On appeal, the conviction was quashed as it was found that there was no ground for suspicion against the accused.

Holding :

Held: it is for the court to be satisfied that there was reasonable ground for suspicion and the court has not before it at that stage any record of the accused's antecedents. The guilt of the accused depends, not on whether the police officer thinks he has reasonable grounds to suspect, but on whether the court considers that there are reasonable grounds to suspect that the property was stolen or fraudulently obtained.

Digest :

Vellasamy v R [1941] MLJ 233 High Court, Straits Settlements (McElwaine CJ).

See criminal procedure, x-ref 37.

457 Minor Offences Ordinance (Straits Settlements) -- s 35

4 [457] CRIMINAL LAW Minor Offences Ordinance (Straits Settlements) – s 35 – Possession of property suspected stolen or fraudulently obtained – Distinction between fraudulent possession and possession of recently stolen property under the Penal Code – Duty of magistrate

Summary :

Held: the distinction between cases of fraudulent possession under s 35 of Ordinance No 96 (Minor Offences) and the possession of recently stolen property under the Penal Code and the common law of England was carefully considered by Hyndman-Jones J in this case. He held that when the property had been identified as belonging to any particular person, the ordinance will not apply at all; there can be no 'unlawful possession' when the order is known. He also held that if the accused gives an account, prima facie reasonable of his possession, it is the duty of the magistrate to ascertain the truth or otherwise of the account.

Digest :

R v Chan Ah Soo [1902] 7 SSLR 85 High Court, Straits Settlements (Hyndman-Jones J).

458 Minor Offences Ordinance (Straits Settlements) -- ss 15(d), 4

4 [458] CRIMINAL LAW Minor Offences Ordinance (Straits Settlements) – ss 15(d), 4 – Obstruction of public footway – 'Abutting' – 'Subject to all rights of property'

Summary :

An open verandah used by the public as a footpath was separated from the road by a strip of land about one foot wide, which was concreted over. The owner of the land on which the verandah stood and of the adjoining premises obstructed the verandah by allowing goods to rest upon it.

Holding :

Held: an offence under s 15(d) of Ordinance No 96 (Minor Offences) had been committed as the word 'abutting' in s 4 does not necessarily involve actual contiguity and the words 'subject to all rights of property' in s 4 do not sanction acts which would prevent the use of the verandah as a public road for foot-passengers.

Digest :

R v Heng Ah Teng [1928] SSLR 77 Court of Appeal, Straits Settlements (Murison CJ, Sproule and Prichard JJ).

Annotation :

[Annotation: Stockport Corp v Rollinson (1910) 102 LT 567 followed.]

459 Misuse of Drugs Act (Singapore) -- 8(a), 33

4 [459] CRIMINAL LAW Misuse of Drugs Act (Singapore) – 8(a), 33 – Possession of vegetable matter containing cannabinol – Defence that recorded cautioned statements were not that of the accused – Absence of accused's fingerprints on exhibits – Whether an inference that exhibits were not in accused's possession – Direct and strong circumstantial evidence linking accused to drugs found

Summary :

The accused was charged with possession of a quantity of vegetable matter containing cannabinol and tetrahydrocannabinol which were controlled drugs, without any authorisation under the Misuse of Drugs Act. The drugs were recovered from a rubbish chute of the flat in which the accused was arrested from. The accused claimed that three-quarters of the cautioned statement recorded from him were not his and that he had not read the statement before he signed it. He alleged that what was recorded in the statement was contextually different from what he had told the recording officer and that he was not invited to make any alterations, corrections or deletions to the statement. The accused also submitted that he had nothing whatsoever to do with the vegetable matter recovered from the rubbish bin, stating that the absence of his fingerprints on the exhibits as well as the discovery of some other person's fingerprints on one of the exhibits favoured the inference that the exhibits were not in the possession of the accused.

Holding :

Held, convicting the accused: (1) it was incumbent on the trial court to review and evaluate all the evidence presented at the trial both by the prosecution and the defence with a view to satisfying itself whether the prosecution had indeed discharged the ultimate burden placed on it in proving the case against the accused beyond a reasonable doubt; (2) there was little doubt that the accused was prepared to utter deliberate lies in court with a view to extricating himself from a material aspect in relation to his throwing something into the rubbish chute; (3) the accused did make the entire s 122(6) statement voluntarily and was clearly telling lies in court when he mentioned that except for the first two sentences in his s 122(6) statement, the rest were not his, that they were made out by the recording officer and that he did not read the statement before he signed it; (4) a conscious lie such as the one uttered by the accused in court in relation to one of the most material issues, out of a realisation of guilt and fear of truth tended in many ways to corroborate the guilt of the accused; (5) nothing could be more tenuous than the defence's submission on the absence of the accused fingerprints. If this submission were to be accepted, then what an offender could do to secure an acquittal was simply to let an unknown person handle the exhibits beforehand and take steps not to leave his fingerprints on the exhibits. There was both direct and strong circumstantial evidence to link the accused to the tetrahydrocannabinol and cannabinol found in the vegetable matter contained in the black bag.

Digest :

Public Prosecutor v Manogaran s/o R Ramu (No 2) Criminal Case No 44 of 1996—High Court, Singapore (Rubin J).

460 Misuse of Drugs Act (Singapore) -- ss 5(1), 17

4 [460] CRIMINAL LAW Misuse of Drugs Act (Singapore) – ss 5(1), 17 – Trafficking in a controlled drug – Possession of diamorphine for the purpose of trafficking – Control and knowledge of existence of drugs – Whether presumption of trafficking rebutted

Summary :

The appellant was tried in the High Court on two charges of trafficking in diamorphine. 11.09g of the drugs contained in 22 sachets were recovered from the master bedroom of the appellant's rented flat. The 11.09g formed the subject matter of one charge. Another 480.1g of drugs, contained in 17 packets, were recovered from an adjoining bedroom (the second bedroom). In respect of this quantity, the appellant was jointly charged with one Kua and tried jointly. Kua was eventually acquitted of the charge. Insp Chow, a member of the CNB raiding party, testified that he recorded a statement from the appellant immediately after having completed a search of the flat. In the statement, the appellant admitted that there were ten or more packets of `pei hoon' in a bag which he claimed belonged to Kua. The appellant asserted that this statement was fabricated. In his defence, the appellant claimed that Kua was his sub-tenant who had rented the second bedroom. He asserted that Kua came to the flat every morning, but always kept the second bedroom locked when he was not there. He did not know that there were drugs in the second bedroom. As for the 22 sachets recovered from the master bedroom, he claimed that these were meant for his consumption. The trial judge found that the appellant had possession of the drugs in the second bedroom and had failed to rebut the presumption of trafficking. He also rejected the appellant's allegation that the statement recorded by Insp Chow was a fabrication. Consequently, he convicted the appellant on an amalgamated charge of trafficking in 491.19g of diamorphine. On appeal, the appellant denied having had possession of the drugs found in the second bedroom. He maintained that he had no knowledge of the drugs and that Kua was the one who had brought the drugs to the second bedroom.

Holding :

Held, dismissing the appeal: (1) there was ample evidence that the appellant had control and knowledge of the drugs found in the second bedroom. He was the one who had rented the two bedrooms and at the material time was in occupation thereof. There was no mention of any sub-letting to Kua in either the disputed statement to Insp Chow or a s 122(6) statement recorded later. Moreover, he had maintained that Kua always kept the door to the second bedroom locked, but the door was in fact wide open when the search was conducted. It was extremely telling that the appellant was unable to explain this away; (2) the disputed statement which the appellant made orally to Insp Chow provided clear admission that he had knowledge of the existence of the drugs in the second bedroom. The statement showed that he knew that the bag contained more than ten packets of heroin; (3) it had been proved that the appellant had possession of the drugs found in the second bedroom. He admitted to both ownership and possession of the drugs found in the master bedroom. The presumption arose under s 17 that he had the drugs in his possession for the purpose of trafficking. On the evidence, he had not rebutted this presumption.

Digest :

Chua Kiat Ann v Public Prosecutor [1997] 1 SLR 98 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

461 Misuse of Drugs Act (Singapore) -- s 14

4 [461] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 14 – Chemist's certificate – Certificate signed by senior scientific officer – Whether valid

Digest :

Chia Beng Chye v Public Prosecutor [1980] 2 MLJ 171 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, TS Sinnathuray and Chua JJ).

See CRIMINAL LAW, Vol 4, para 458.

462 Misuse of Drugs Act (Singapore) -- s 15(2)

4 [462] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 15(2) – Statutory presumption – 'Transport' – Burden of proof – Misuse of drugs – Controlled drugs – Trafficking in – Diamorphine – Comparison of Canadian legislative provisions on drugs with that of Singapore – Misuse of Drugs Act 1973, ss 2, 3, 6, 15 & 16(2) – Narcotics Control Act 1960-61 (Canada), ss 2(i), 3, 4, 5, & 8.

Summary :

The appellant was found carrying on his person two packages tucked under his socks, one on each leg. These were removed at the customs checkpoint at Woodlands, Singapore. The two packages were found to contain 137.78 gms of diamorphine. The facts indicated that the appellant had travelled from Kuala Lumpur in a private taxi with the taxi driver and three other passengers including one Wong Hon Kok. In his defence, the appellant admitted that the person who gave him the two packages told him that they contained heroin and that although he had not opened the packages and seen the contents, he had no reason to disbelieve what he had been told about their contents. The appellant also said that he had been promised S$1,000 for carrying the two packages from Kuala Lumpur to Singapore. The appellant told the trial court that the person who gave him the two packages was Wong Hon Kok, the said fellow passenger. The trial court found that even if what the appellant claimed was true, nevertheless he had transported the two packages from Kuala Lumpur to Singapore knowing that they contained heroin and that he was guilty of 'trafficking' within the meaning of the Act. He was convicted and sentenced to death. He appealed. Counsel for the appellant contended that the act of the appellant of carrying the heroin from Kuala Lumpur to Singapore did not constitute 'trafficking' within the definition of 'traffic' as laid down in the Misuse of Drugs Act 1973.

Holding :

Held, dismissing the appeal: (1) when it is proved that the quantity of diamorphine which the accused person was transporting (in the dictionary sense of the term) was two or more grams, a rebuttable presumption arises under s 15(2) that the accused had the said controlled drug in his possession for the purpose of trafficking. Proof of the act of transporting plus the presumption under s 15(2) would constitute a prima facie case of trafficking which if unrebutted would warrant his conviction; (2) in those circumstances, the burden of proof would clearly shift to the accused and he would have to rebut the case made out against him. If he could convince the trial court by a preponderance of evidence or on balance of probabilities that the drug was for his own consumption, he would be entitled to an acquittal.

Digest :

Wong Kee Chin v Public Prosecutor [1979] 1 MLJ 157 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

463 Misuse of Drugs Act (Singapore) -- s 15(c)

4 [463] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 15(c) – Statutory presumption – 'Trafficking' distinguished from 'possession'

Digest :

Poon Soh Har & Anor v Public Prosecutor [1977] 2 MLJ 126 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Choor Singh and D'Cotta JJ).

See CRIMINAL LAW, Vol 4, para 460.

464 Misuse of Drugs Act (Singapore) -- s 15

4 [464] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 15 – Statutory presumption – Whether constitutional – Burden of proof

Digest :

Ong Ah Chuan v Public Prosecutor and another appeal [1981] 1 MLJ 64 Privy Council Appeal from Singapore (Lord Diplock, Lord Keith of Kinkel, Lord Scarman and Lord Roskill).

See CRIMINAL LAW, Vol 4, para 456.

465 Misuse of Drugs Act (Singapore) -- s 16(1), (2)

4 [465] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 16(1), (2) – Statutory presumption – Trafficking in a controlled drug – Failure to rebut presumption – Misuse of drugs – Controlled drug – Trafficking in – Possession of 292.6 gms of diamorphine – Appeal against conviction – Misuse of Drugs Act 1973, s 16(1) & (2).

Summary :

The appellant in this case together with two other passengers in a taxi entered Singapore from Johore Bahru. At the customs checkpoint, a customs officer noticed that his trousers were bulging and he touched both pockets. The customs officer asked the appellant to take out the contents of the right trouser pocket. The appellant took out a parcel found to contain 20 plastic packets of whitish powder. The appellant said that it was 'obat', which means medicine in the Malay language. He was arrested and brought to the customs office at Woodlands where he took out from his left and rear trouser pockets two more parcels. The latter parcels contained another 24 plastic packets of whitish powder and brownish solid. On analysis, they were found to contain 292.6g of diamorphine. The appellant claimed that he was unaware that the three parcels contained diamorphine. He believed that they contained powder for whitewashing and said that they were given to him by his friend for delivery to Singapore. The trial judges rejected his evidence. They found that he had not succeeded in rebutting the onus cast upon him of rebutting the presumptions raised against him by virtue of s 16 of the Misuse of Drugs Act 1973.

Holding :

Held, dismissing the appeal: it was a clear case, on the evidence and the findings of fact by the trial judges, of trafficking in a Class 'A' controlled drug, diamorphine, and as the quantity of diamorphine exceeded beyond doubt 15g, the sentence of death was mandatory.

Digest :

Tan Ah Lam v Public Prosecutor [1979] 1 MLJ 155 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

466 Misuse of Drugs Act (Singapore) -- s 16(1), (4)

4 [466] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 16(1), (4) – Statutory presumption – Heroin found in letter box – Possession of keys to letter box – Strict proof – Knowledge

Digest :

Poon Soh Har & Anor v Public Prosecutor [1977] 2 MLJ 126 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Choor Singh and D'Cotta JJ).

See CRIMINAL LAW, Vol 4, para 460.

467 Misuse of Drugs Act (Singapore) -- s 16(2)

4 [467] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 16(2) – Statutory presumption – No corresponding section in the Canadian Narcotics Control Act 1960-1961

Digest :

Wong Kee Chin v Public Prosecutor [1979] 1 MLJ 157 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 572.

468 Misuse of Drugs Act (Singapore) -- s 16

4 [468] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 16 – Statutory presumption – Burden of proof – Evidence of possession – Meaning of 'possession'

Digest :

Tan Ah Tee & Anor v Public Prosecutor [1980] 1 MLJ 49 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and Chua JJ).

See CRIMINAL LAW, Vol 4, para 446.

469 Misuse of Drugs Act (Singapore) -- s 17(c)

4 [469] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17(c) – Statutory presumption – Defence that drugs were for own consumption – Whether one offence or 70 offences should have been charged – Dangerous drugs – Trafficking – Accused charged with trafficking 67.49 gms of diamorphine – Defence that drugs were for own consumption – Misuse of Drugs Act (Cap 185, 1985 Ed), ss 5(a) & 33.

Summary :

On 5 August 1984, the accused and one Ong Hong Yiat drove towards the Woodlands Customs Checkpoint and were stopped by the narcotics officers for inspection. A narcotics detector dog NDD Clyde was led into the car. It went to the back of the front passenger seat, wagged its tail and refused to leave the area. According to the dog's handler, the dog gave an abnormal response to the area thus indicating the presence of heroin. The accused in the course of the search said in Hokkien, 'Help me, I was given a bundle and I kept it in the cassette box.' The accused led SNO Lim to the car, opened the door and removed a cassette box from under the front passenger seat. When the said box was opened, it was found to contain a parcel wrapped in newspaper and some cassette tapes. The parcel was found to contain seven bags and in each were ten sachets of a granular substance. The said 70 sachets were found to contain a total of 276.6g of granular substance with a diamorphine content of 67.49g. Ong Hong Yiat was also searched and two sachets containing 1.7 gms of diamorphine were found in her handbag. At the time of arrest, there was found in the said car currency notes amounting to S$19,327, M$3,425 and US$6, which belonged to the accused. The amount of cash found on Ong Hong Yiat was S$2,714.50. Urine samples of the accused and Ong were found to contain morphine. The police found two bunches of keys on the accused. One of the keys was his room key for No 31, Jalan Wong Ah Fook. The said premises were raided and two sachets were found on the premises. They contained 0.80g and 1.17g of heroin. One plastic straw discovered on the premises was found to contain 0.124g of heroin. On 8 August 1984, the accused was sent to Changi Prison Hospital and was found to have drug withdrawal syndrome. The doctor who examined him testified that on the basis of his symptoms, the accused was a moderate heroin addict within his classification of mild, moderate and heavy addiction. On 5 August 1984, the accused made a statement under s 121(6) of the Criminal Procedure Code (Cap 113, 1970 Ed) to a senior narcotics officer. The procedure prescribed by law was duly followed. The accused said in Hokkien, 'I brought the peh hoon into Singapore. My girlfriend who was arrested did not know anything. For each trip I was paid S$1,000. I am a peh hoon addict and was forced to do it because of financial difficulties. I have to support my mother and three younger sisters.' At the hearing, the accused did not challenge the admissibility of his confession. At the end of the prosecution case, the court found that the prosecution had adduced sufficient evidence against the accused. The defence was called and the accused elected to give evidence on oath. His defence was that he was a heroin addict and that he brought the heroin into Singapore for his own consumption. His explanation for the amount of cash found in his possession was that he was an illegal moneylender and an operator of a gambling den, from which activities he made S$4,000 and S$3,000 respectively each month.

Holding :

Held: (1) the accused had not on a balance of probabilities rebutted the presumption that he was trafficking in heroin as charged. Even in the absence of the statutory presumption of trafficking, the irresistible inference from the facts was that the accused intended to and did traffic in heroin at the time of his arrest; (2) the prosecution had proved beyond reasonable doubt that the accused had in his possession on 5 August 1984, at the Woodlands Customs Checkpoint, not less than 67.49g of heroin for the purpose of trafficking; (3) neither s 17 nor the definition of controlled drug is qualified in any way as to the manner in which the diamorphine is possessed by or found in the possession of an accused person. The said section applies where a person is proved or presumed to have had in his possession a prescribed amount of diamorphine. It does not matter that the said amount of diamorphine is compounded or mixed with or in any substance so that it is not of 100% purity, nor does it matter that the diamorphine or mixture or compound of which it is part is found in one container or package or in several containers or packages. What matters is the amount of diamorphine, however mixed in any substance or packed, that is found in the possession of the accused at any one time; (4) the accused should be convicted as charged and sentenced to death.

Digest :

Public Prosecutor v Sim Mai Tik [1987] 2 MLJ 578 High Court, Singapore (TS Sinnathuray J and Chan Sek Keong JC).

Annotation :

[Annotation: See also the Court of Criminal Appeal's decision, [1988] 3 MLJ 363.]

470 Misuse of Drugs Act (Singapore) -- s 17(c)

4 [470] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17(c) – Statutory presumption – Defence that drugs were for own consumption – Whether one offence or 70 offences should have been charged – Meaning of 'contained' – Dangerous drugs – Trafficking in 70 plastic bags of diamorphine – Appellant not a mere heroin addict – Abundant evidence to justify trial judge's findings – Whether one trafficking offence or 70 trafficking offences should have been charged – Misuse of Drugs Act (Cap 185, 1985 Ed), ss 2 & 17(c).

Summary :

The appellant was convicted and sentenced to death by the High Court on a charge of trafficking in 70 plastic bags of diamorphine weighing more than 67.49g. He appealed against the conviction contending that: (a) the trial judges erred in rejecting the appellant's evidence that the heroin found in his possession was for his own consumption; (b) the trial judges were wrong in rejecting the appellant's explanation for the things found in his room in Johor Bahru; (c) the trial judges misdirected themselves on the effect of his statement made under s 121(6) of the Criminal Procedure Code (Cap 113, 1970 Ed), part of which statement was retracted by the appellant; (d) the trial judges were wrong in holding that the appellant could lawfully be charged for one offence of trafficking when he should have been charged with 70 offences of trafficking in such quantity of drugs as were found contained in each of 70 sachets. The appellant submitted that the definition of 'controlled drug' in s 2 and the words 'contained in any controlled drug' in s 17(c) of the Misuse of Drugs Act (Cap 185, 1985 Ed) must be read strictly to apply to such quantity of diamorphine contained in any controlled drug that was packed in each of the 70 individual sachets, and not to the combined quantity of diamorphine found in all 70 sachets.

Holding :

Held, dismissing the appeal: (1) the issue of whether the heroin found in the appellant's possession was for his own consumption was a straight question of fact and credibility, and the trial judges did not attach any credence to the appellant's evidence. There was abundant evidence to justify the finding that the appellant was not a mere heroin addict; (2) the trial judges' finding that the things found in the appellant's room in Johor Bahru were things which a trafficker of drugs could be expected to have was an inference which the trial judges were entitled to draw from the totality of the evidence; (3) the trial judges were entirely correct in rejecting the appellant's explanation for retracting part of the statement voluntarily given under s 121(6) of the Criminal Procedure Code; (4) the words 'anything that contains' and 'contained' appearing in s 2 and s 17(c) of the Misuse of Drugs Act refer to the content of the compound, mixture or receptacle in the possession of the accused person, and has nothing whatever to do with how the compound, mixture or receptacle is packed or mixed by the accused person. It is plain beyond all doubt that what matters is the prescribed minimum weight of the substance or product listed in the First Schedule found contained in any compound, mixture or receptacle, however packed or mixed, in the possession of the accused person at any given time.

Digest :

Sim Mai Tik v Public Prosecutor [1988] 3 MLJ 363 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, LP Thean and Rajah JJ).

471 Misuse of Drugs Act (Singapore) -- s 17

4 [471] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Delivering drugs to their alleged owner not a defence – Passive bailee

Summary :

The accused was charged with trafficking diamorphine. During the trial, his evidence was contradicted on material points by his investigation statements. His explanation for the discrepancies was that as he was very cold and wanted to finish with the recording of his statements, he had agreed with the investigation officer's questions and had made up his answers. The judge found that his explanations did nothing to shore up his credibility and instead showed that he was careless about the truth and given to lie deliberately and repeatedly. His witnesses were unable to support his defence that the drugs were not his and that he was holding the drugs as a bailee for somebody else. Defence counsel submitted that a bailee in passive possession of drugs cannot be said to be trafficking.

Holding :

Held, sentencing the accused to death: (1) transporting drugs to deliver them to their alleged owner is not a defence to trafficking; (2) with the amendments made to the Misuse of Drugs Act (Cap 185) in 1993 (ie the amended s 17 and a new s 5(2)), a passive bailee may be convicted of trafficking unless he rebuts the presumption.

Digest :

Public Prosecutor v Lau Mui Hai Criminal Case No 30 of 1995 High Court, Singapore (Kan Ting Chiu J).

472 Misuse of Drugs Act (Singapore) -- s 17

4 [472] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Knowledge of presence of drugs admitted – Election by accused to remain silent when defence called – Conclusion that appellant trafficked in drugs irresistible

Summary :

The appellant was tried in the High Court on a charge of drug trafficking. He was arrested at a car park in Toa Payoh. A plastic bag containing seven packets of a white granular substance was found on the floorboard of his car in front of the driver's seat. One of the arresting officers, ASP Lim, testified that the appellant had told him that the substance found in his car was 'pek hoon' (heroin) and revealed to him another seven packets similarly concealed in the sill next to the front passenger's seat. The 14 packets of substance recovered from the appellant's car were analyzed to contain not less than 532.3g of diamorphine. The appellant also made a written statement to the investigating officer, admitting that he knew that there were drugs concealed in his car at the material time. At trial, the appellant challenged the voluntariness of this statement. The trial judge rejected the appellant's contentions and admitted his written statement into evidence. When the appellant was called to enter his defence, he elected to remain silent and failed to call any evidence in his favour. He was accordingly convicted and sentenced to death. The appellant appealed. Before the Court of Appeal, appellant's counsel contended that his client had accepted his advice that he could not make out any valid argument on his behalf. The court confirmed through the court interpreter that the appellant fully understood and accepted his counsel's advice.

Holding :

Held, dismissing the appeal: (1) the court had carefully examined the entire record of appeal and was unanimously in agreement that the appellant had been properly convicted; (2) the appellant's admission to ASP Lim that he knew that there were drugs in his car was properly admitted into evidence by the trial judge. By electing to remain silent and failing to call any evidence in his favour, the appellant had failed to rebut the presumption raised under s 17 that he had the drugs in his possession for the purpose of trafficking. Thus, the conclusion that the appellant had trafficked in drugs was irresistible; (3) the appellant's statement to the investigating officer was also properly admitted by the trial judge. The trial judge's rejection of the appellant's complaints as to the voluntariness of the statement was based entirely on his assessment of the credibility of the appellant, which an appellate court could not lightly displace.

Digest :

Ng Chye Meng v Public Prosecutor [1994] 2 SLR 809 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

473 Misuse of Drugs Act (Singapore) -- s 17

4 [473] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – No necessity to prove overt act – Accused to rebut on balance of probabilities – Larger the amount of drugs the more difficult to rebut – Irrelevant that intended object was not completed

Summary :

The accused, charged with trafficking in 46.56g of diamorphine, was seen standing with a black plastic bag at a bus-stop along Changi Road by police on routine patrol. In this black plastic bag were: a Malboro cigarette containing 62 packets of drugs, one red polythene bag containing 29 packets of drugs, three newspaper wrapped bundles containing 8, 14 and four packets of drugs respectively (a total of 46.43g). The accused also had one packet of drugs (0.13g) and a stick and empty straw in his shirt pocket. While in the police vehicle, the accused was questioned through an interpreter who was then a National Service Probationary Inspector and he made certain oral admissions. The accused also made an oral admission that the contents of the black plastic bag contained 'peh hoon'. Morphine was detected in the accused's urine sample. The accused's defence was that he was only going to traffic in four packets of drugs and therefore, below 15g on the day in question. The rest of the drugs was for his own consumption.

Holding :

Held, convicting the accused on the amended charge of trafficking in 46.43g of diamorphine: (1) the amendment to s 17 of the Misuse of Drugs Act (Cap 185) ('the Act') was intended to overcome the shortcomings highlighted in the observations of the Court of Appeal in Poon Soh Har v Public Prosecutor. The phraseology of the amendment is unambiguous. It provides that once a person is proved to have had in his possession more than 2g of diamorphine, he is presumed until the contrary is proved to have trafficked in a controlled drug. The presumption is justified on the ground that the harm and damage caused by purveyors of drugs is so great and proof of trafficking so difficult to establish that the law must shift the burden to the accused. The phrase 'until the contrary is proved' shifts the burden to the accused to prove on a balance of probabilities that he was not trafficking in diamorphine. It was therefore unnecessary to prove any overt act on the part of the accused; (2) on the wording of s 122(5) of the Criminal Procedure Code (Cap 68) that any statement made 'in the hearing of any police officer of or above the rank of a sergeant shall be admissible at his trial' even though the person who asked the questions and obtained the answers was an officer below the rank of a sergeant, the interpreter was a police officer above the rank of a sergeant, so such statements given in his hearing were admissible. However, these admissions by the accused in the police vehicle could not be relied on as they were recalled many days later and the sequence of questions and answers was probably not recorded in the way it was given; (3) there was no doubt that the accused was a drug addict and was suffering from withdrawal symptoms while in police lock-up. However, his explanation that he was in the habit of carrying the drugs with him all the time as he could not retain them in his rented room was disbelieved. Leaving aside the 62 packets and the one packet in his shirt pocket, the remaining 55 packets were packed in four separate bundles of eight, 14, 29 and four packets respectively. The packing of the drugs into four separate bundles did not support the accused's defence that the remainder was for his own consumption as if they were, there was no need for them to be packed separately as had been done; (4) proof of the purpose for which an act is done has always presented a problem in criminal proceedings as in the absence of an express admission by the accused, it is a matter of inference from what he did. If an accused is caught conveying from one place to another a much larger quantity of controlled drugs than is likely to be needed for his own consumption, the inference that he was conveying them for the purpose of trafficking in them is irresistible. The larger the amount of drugs, the stronger the inference that they were not intended for personal consumption and the more convincing the evidence needed to rebut it (per Lord Diplock in Ong Ah Chuan v Public Prosecutor); (5) the accused's explanation that he was carrying the drugs for the limited purpose of selling only four packets and that the remainder was for his own consumption was not acceptable. The accused had not proved the contrary on a balance of probabilities. Granting that he was an addict, his course of conduct on the day in question in fact pointed to the opposite direction that he was at Changi Road to sell the drugs in his possession save for that one packet found in his shirt pocket. The fact that he did not bring his intended object to fruition was irrelevant in the scheme of the Act.

Digest :

Public Prosecutor v Tan Nguah Siah Criminal Case No 54 of 1992 High Court, Singapore (Rubin JC).

474 Misuse of Drugs Act (Singapore) -- s 17

4 [474] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Trafficking – 'Transport' – Purpose of transportation

Summary :

The first appellant was charged with the amended charge of trafficking in not less than 29.57g of diamorphine by delivery of 25 sachets of drugs in three envelopes to the second appellant. The second appellant was charged with the amended charge of trafficking in the same drugs by transporting them. Both appellants were tried jointly in the High Court and sentenced to death. On appeal, the first appellant argued that there was a break in the chain of evidence pertaining to the possession of the seized drugs and to their packaging and storage. The first appellant, who conducted his own defence at the trial, had cross-examined one Insp Chow, who was the arresting officer for the second appellant, as to the handling of the drug exhibits. Insp Chow had testified he had placed each of the three envelopes seized from the second appellant (which contained the drugs which were the subject matter of the charge) in a separate plastic bag provided by the Scene of Crime Unit (SCU). The three SCU bags were then placed in a white plastic bag. The drugs were then passed to Insp Chew, the arresting officer for the first appellant, for handling and safekeeping. However, Insp Chew on being further examined, stated that he had received from Insp Chow one SCU plastic bag containing the white plastic bag which further contained the three envelopes. There was thus a discrepancy in the evidence of Insp Chow and Insp Chew. The exhibits were also not immediately marked and sealed by Insp Chew when he received them from Insp Chow, but were kept in his personal steel cabinet for almost 2[1/2] days before they were sent to the Department of Scientific Services for analysis. The submission was that the exhibits sent for testing were not the same drugs seized by Insp Chow from the second appellant as there was a break in the chain of evidence. The second appellant's submission was that he had bought the drugs in question on part credit from the first appellant for the consumption of himself and his girlfriend as they were heroin addicts. Evidence was given at the trial as to his and his girlfriend's rates of consumption. Also, it was in evidence that some ten sachets of drugs out of the 25 had been passed to him by the first appellant for his safekeeping. Counsel reiterated that the second appellant's oral admission to Insp Chow that he would sell drugs to his friends if they came to him for heroin had been retracted. The submission was that the second appellant had not trafficked in the drugs by merely transporting them to his flat from the car park where the first appellant's car was parked and where the transaction took place. On the basis that there was some evidence that some of the drugs were being intended for the second appellant's and his girlfriend's consumption, the trial judge had given the second appellant due allowance of seven sachets out of the 25 that were the subject matter of the charge. This left a balance of 18 sachets (with a pro-rated diamorphine content of 21.29g). The trial judge thus amended the charge to read 'more than 15g and not more than 29.57g' and convicted the second appellant on that basis. The second appellant also appealed against this mode of assessment and apportionment.

Holding :

Held, dismissing the appeals: (1) with respect to the first appellant's appeal, there was no break in the chain of evidence as there was no confusion as to the identity of the actual exhibits seized from the second appellant, namely, the three airmail envelopes and the 25 sachets, despite the confusion over the SCU bag; (2) as the second appellant was in physical possession of the 25 sachets of heroin and was in the act of conveying them to his flat, he was in that sense transporting the 25 sachets of heroin; (3) whether an act of conveyance of drugs amounted to trafficking by transportation depended on the purpose of the conveyance at the time of the conveyance. This purpose was not determined by reference to the intended use at the intended destination but by the ultimate intended use of the drugs. The correct test was the state of mind of the transporter at the time he was transporting the drugs; (4) when a person was in possession of more than 2g of diamorphine while transporting, there was a statutory presumption against him that he was trafficking in the drug he transported. The burden was on such a person to rebut the presumption on a balance of probabilities; (5) in the light of the evidence before the court, the trial judge was right in finding that the second appellant had not rebutted the presumption of trafficking, and that he had admitted to Insp Chow that he sold drugs to his friends. The fact that some of the quantity of heroin could have been for the second appellant's own and his girlfriend's consumption did not rebut the presumption in the light of his own admission that he would sell the drugs to his friends when they came to him for drugs; (6) the trial judge's approach in apportioning and pro-rating the drugs was conjectural and erroneous, as there was no reliable evidence as to the rates of consumption of heroin by the second appellant and his girlfriend, the purity of the heroin consumed, the purity of the heroin in the 25 sachets, the manner in which the heroin was consumed and the separate weight and purity of each sachet of heroin. In the circumstances, the trial judge should have convicted the second appellant of the original charge of trafficking in not less than 29.57g of diamorphine, and not amended the charge to reflect the assumed consumption; (7) (per curiam) counsel must act with responsibility in the conduct of the cases they are entrusted with and not make a submission of 'no case' at the end of the prosecution's case in a criminal trial just for the sake of making a submission.

Digest :

Ong Lee Koon & Anor v Public Prosecutor [1995] SLR 750 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

475 Misuse of Drugs Act (Singapore) -- s 17

4 [475] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Trafficking – Possession – Whether proved beyond reasonable doubt

Summary :

On 23 June 1993, a team of officers trailed one Loo Koon Seng (Loo) who led them to a flat in Jalan Lokam, which they raided. The first and second respondents, who were in the flat, were arrested. The third respondent who returned to the flat a while later attempted to flee from the scene, but was also arrested. Forty-one packets of a powdery substance containing not less than 54.20g of diamorphine were found in the hall of the flat. Two more packets of substance containing not less than 6.77g of diamorphine were found hidden away in the kitchen. The three respondents were jointly charged with the offence of trafficking in 60.97g of diamorphine in furtherance of a common intention. At trial, a cautioned statement of the first respondent which implicated the three respondents was admitted. This was retracted by the first respondent. The defence of the three respondents was one of bare denial. Although they were the occupiers of the rented flat, they claimed that they did not know of the drugs in the flat. Loo, a close friend of the second respon-dent, was the key witness for the defence. Loo, who had access to the flat, testified that the drugs belonged to him. He described in detail how he packed the drugs concerned and where he hid them. He was on his way to collect the drugs for delivery to one Ah Huat when he was apprehended. It was also Loo's testimony that the three respondents did not know about the drugs in the flat at all. Despite the evidence of Loo to the contrary, the trial judge was of the view that the first and second respondents knew of and were in passive possession of the 41 packets of drugs which were present in the hall. However, he accepted that they did not know of the two packets found in the kitchen. As for Loo's evidence, the trial judge found Loo to be intimately connected to the drugs. By placing reliance on Loo's evidence, the trial judge decided that the first and second respondents had rebutted the presumption of trafficking within s 17 of the Misuse of Drugs Act (Cap 185) (the Act) and he convicted them of the reduced charge of possession of 54.20g of controlled drugs. As for the third respondent, the trial judge found that there was a 'lurking doubt' that the third respondent was in possession of any of the drugs in the flat and hence the third respondent was acquitted. On appeal, the prosecution submitted that, on the evidence adduced, the third respondent, like the first and second respondents, was in possession of the drugs in the flat. Next, the prosecution referred to some comments made by the trial judge about the defence evidence throwing a reasonable doubt on the prosecution's case and contended that the trial judge had applied the wrong standard of proof for rebutting the presumption under s 17 of the Act. Lastly, the prosecution urged that Loo's evidence was not credible. As such, the respondents had not rebutted on a balance of probabilities the presumption of trafficking.

Holding :

Held, dismissing the appeal: (1) s 17 of the Act, as it was prior to the amendment in 1993, applied to the present case. The prosecution was therefore required to prove beyond reasonable doubt the fact of possession in order to avail itself of the presumption of trafficking within s 17; (2) the learned judge had applied the correct test with regard to the defence evidence, namely, whether it raised a reasonable doubt on the prosecution case and not whether the court was convinced of the truth of every aspect of the evidence. He had also accurately set out the law on the presumption of trafficking within s 17 when satisfied that possession had been proved beyond reasonable doubt with regard to the first and second respondents; (3) similarly, upon the available evidence, the trial judge had not erred in his application of the law when he considered whether the first and second respondents had successfully rebutted the presumption of trafficking within s 17 on a balance of probabilities; (4) the various objections raised by the prosecution as to Loo's evidence had been canvassed before the trial judge. Having reviewed the evidence of Loo and considered the submissions of the prosecution, no reason was found to upset the trial judge's findings of fact. In the event, it was affirmed that the first and second respondents had successfully rebutted the actus reus of the presumption of trafficking on a balance of probabilities; (5) as for the third respondent, upon a consideration of all the evidence, there was no reason to reverse the trial judge's decision that he was not in possession of the drugs in the flat.

Digest :

Public Prosecutor v Wan Yue Kong & Ors [1995] 1 SLR 417 Court of Appeal, Karthigesu and LP Thean JJA and Goh Joon Seng J)

476 Misuse of Drugs Act (Singapore) -- s 17

4 [476] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Trafficking – Presumption of trafficking – Possession must be proved and not presumed before presumption may arise – Standard of proof required to rebut presumption – Whether presumption rebutted

Digest :

Public Prosecutor v Wan Yue Kong & Ors [1995] 1 SLR 417 Court of Appeal, Karthigesu and LP Thean JJA and Goh Joon Seng J).

See CRIMINAL LAW, Vol 4, para 580.

477 Misuse of Drugs Act (Singapore) -- s 17

4 [477] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Trafficking – Whether appellant knew substance he possessed was drugs – Whether ownership of drugs a prerequisite to the act of trafficking

Summary :

The appellant was arrested with not less than 149.84g of heroin in his possession. He put up a struggle when officers from the Central Narcotics Bureau (CNB) tried to arrest him. After the arrest, the appellant replied in response to questions posed by a CNB officer that there were two pounds of 'peh hoon' in the plastic bag which he was carrying. Then, the appellant was brought back to a flat rented by his sister. The front room of the flat which the appellant used when he visited the flat was searched. From a locked cupboard in the room used exclusively by the appellant, more heroin was recovered. This extra quantity of drugs formed the subject matter of a second charge which was stood down at the commencement of the trial. Paraphernalia usually associated with drug trafficking and a large sum of cash were also found in the cupboard. The appellant's defence was that he thought the substance in his possession was medicine. He was asked to help one Ah Leong pack and seal medicine to be supplied to prostitutes. He used the room in the flat for this purpose. All the drugs belonged to Ah Leong. When he was arrested, he told the officers that the substance was 'eok' meaning medicine in the Hokkien dialect. He explained that the large sum of money was lent or given to him by his three sisters. The three sisters denied this and their evidence was unchallenged. Although Ah Leong was brought to court and identified, he did not testify on behalf of the appellant. It transpired that Ah Leong had also been arrested by the police. The trial judge rejected the defence that the appellant did not know that the substance was drugs. It did not matter in the least that the drugs belonged to Ah Leong. The appellant had not rebutted the statutory presumption of trafficking and was accordingly convicted. On appeal, counsel submitted that the trial judge should not have accepted the version given by the CNB officers of the exchange between the appellant and one of the CNB officers, especially since the appellant had put up a struggle prior to the arrest. Secondly, the appellant's defence that he did not know the substance was drugs should have been accepted. Thirdly, the trial judge should have accepted that Ah Leong was the true owner of the drugs. Finally, the evidence of the paraphernalia, the cash and the extra quantity of drugs should not have been admitted.

Holding :

Held, dismissing the appeal: (1) the answers were given by the appellant in the presence of four CNB officers who gave evidence that he said that there were two pounds of 'peh hoon' in the plastic bag. The trial judge accepted their evidence and was justified in so doing; (2) the question whether the drugs belonged to Ah Leong was wholly immaterial. The ownership of the drugs was not a prerequisite to the act of trafficking; (3) the evidence of the paraphernalia and cash was relevant and was correctly admitted. The trial judge only took into account the fact that the appellant had not explained satisfactorily how he came by the sum of money in the cupboard when he considered the appellant's credibility. The trial judge had not erred; (4) as for the additional quantity of drugs, the evidence was admitted by the trial judge subject to its relevance. In the light of the defence that the appellant thought that all the substance in his possession was medicine, the evidence of the additional amount of drugs was not relevant to the charge. However, the trial judge had not erred because he disregarded the evidence totally; (5) the defence of the appellant that he was packing and sealing medicine for Ah Leong was incredible. He had intimate contact with the drugs and must have known that the substance in the plastic bag was heroin. The trial judge's finding that the appellant knew the content of the plastic bag was drugs was unimpeachable. The paraphernalia and the unexplained cash in his possession also gave rise to an inference that he was trafficking in the drugs. In the event, the appellant had not successfully rebutted the statutory presumption of trafficking.

Digest :

Chan Hock Wai v Public Prosecutor [1995] 1 SLR 728 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

478 Misuse of Drugs Act (Singapore) -- s 17

4 [478] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Trafficking – Whether presumption rebutted – Defence of personal consumption – Whether statement involuntarily made due to drug withdrawal

Summary :

The appellant was convicted on a charge of trafficking by transporting diamorphine. Two statements were recorded from the appellant by the investigation officer on his arrest. The first was a s 122(6) statement recorded five days after arrest, and the second ('the investigation statement') was recorded a day after that. The appellant had challenged the voluntariness of the two statements. At the end of the voir dire, the statements were ruled to have been made voluntarily and admitted as evidence. The appellant's defence at trial was that the drugs were meant for his own consumption. At the end of the trial, the trial judge found that the appellant had not rebutted the presumptions of trafficking under s 17 of the Act and convicted him. On appeal, it was again contended that the statements had not been made by the appellant voluntarily. It was further contended that the trial judge's evaluation of the defence's expert evidence on the withdrawal symptoms suffered by the appellant was flawed and that the evidence should not have been given the same consideration at the voir dire and at the trial.

Holding :

Held, dismissing the appeal: (1) the s 122(6) and the investigation statements were made by the appellant voluntarily. For the effects of withdrawal from drugs to affect the drug user's medical and psychological condition to render any statement he makes involuntary, he must be in a state of near delirium. This was not proved; (2) the expert evidence was given different considerations at the voir dire and at the trial. At the voir dire, the issue was whether the appellant's will had been sapped as a result of his addiction and withdrawal from the drugs such that the statements were made involuntarily. At trial, the issue was whether he could rebut the presumption of trafficking by showing that he was such a heavy user of heroin and that he had the financial ability to purchase such a large quantity of diamorphine for his own consumption; (3) however, the underlying feature of the expert evidence at both stages was to determine the amount of drugs the appellant had been using during the period before his arrest. The trial judge had adequately considered the expert evidence at both stages in determining the relevant issues.

Digest :

Garnam Singh v Public Prosecutor [1994] 2 SLR 243 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

479 Misuse of Drugs Act (Singapore) -- s 17

4 [479] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Trafficking – Whether presumption rebutted by reason of subnormal intellect of accused taken together with entrapment operation

Summary :

The respondents were jointly tried in the High Court on charges of drug trafficking under the Misuse of Drugs Act (Cap 185) ('the Act'). The first respondent (Rozman) was charged with having trafficked in a bundle A containing 1040.8g of cannabis by delivering it to one Tan Keng Ann ('Tan'). The second respondent ('Razali') was charged with having abetted Rozman in the commission of the offence. The third charge jointly charged both Rozman and Razali with having in their possession one other bundle B containing not less than 943.3g of cannabis. Tan was a CNB agent provocateur. The prosecution adduced evidence at trial showing that Tan had met Rozman on 24 November 1993. Upon Tan's request, Rozman agreed to procure cannabis for sale to Tan at S$1,800. The next day, Rozman raised the price to S$1,850. Tan agreed, and they arranged to conclude the deal at the bus-stop opposite Bukit Timah Shopping Centre that evening. Tan met Rozman at the bus-stop and noticed a male Malay, later ascertained to be Razali, seated nearby close to a motor cycle. Tan and Rozman then arranged for the cannabis to be handed over at the Kentucky Fried Chicken Restaurant at Bukit Timah Shopping Centre. While Tan made his way there, other CNB officers observed Rozman talking to Razali. Rozman and Razali then approached the motor cycle, from which Rozman retrieved something and thereafter proceeded to meet Tan. Razali remained seated under a tree close to the motor cycle. After meeting Tan and showing to him the cannabis in bundle A, Rozman was arrested. Razali was also arrested shortly after. Bundle B was found on the motor cycle and Razali's thumbprint was found on bundle B. Two voluntary long statements recorded from Rozman were admitted without any objection from the defence. These contained inculpatory statements which implicated Razali. In his defence, counsel for Rozman claimed that he did not have the mens rea of trafficking on account of his subnormal intellect. Evidence was given by Ms Gerrian Wuts, a clinical psychologist, that Rozman was educationally subnormal and of borderline IQ and that he could be easily manipulated by others and, in addition, that might not have been able to discern right from wrong. Razali testified that he was merely obliging Rozman by giving him a lift on his motor cycle to Bukit Timah Shopping Centre. He did not know or suspect that the two bags which held the bundles of cannabis A and B contained anything illegal. He had merely taken out bundle B and held it out of curiosity, which explained the presence of his thumbprint on the bundle. While Rozman had voluntarily given the long statements which were incriminating evidence as against Razali, Rozman had retracted those statements during the trial. Rozman explained that Razali was not involved in the drug activities. He had only implicated Razali out of anger and spite, because the latter had sought to put the entire responsibility for the drugs on him. The learned trial judge held that the evidence had given rise to a grave doubt as to the extent of Rozman's criminal responsibility, having accepted Ms Wuts' opinion as to Rozman's subnormal intellect, and having regard to the entrapment operation leading to his arrest. Rozman was convicted on two charges of possession under s 8 of the Act. As for Razali, the trial judge accepted his defence and acquitted him of both charges, holding that he had satisfactorily explained his presence at the scene. The prosecution appealed.

Holding :

Held, allowing the appeal: (1) there was no force or coercion exerted on Rozman such that his will was overborne by the CNB operatives. There was no evidence to show that Rozman had either been manipulated by the CNB operatives or that they had taken an active role in persuading Rozman to sell the drugs without his willing and active participation; (2) neither was he mentally retarded at all material times. He might have been a person of low intellect, but he was not so intellectually disabled as to be incapable of knowing the nature of his act or of discerning that the act was wrong and contrary to law. Rozman's 'low intellect' and his disposition of being easily susceptible to manipulation by others could not be a defence to a criminal charge. Neither did these factors diminish or eradicate the presence of mens rea. He was guilty of the charge of trafficking in the drugs in bundle A; (3) nor could it amount to a rebuttal of the presumption of mens rea of trafficking in relation to bundle B. Rozman had not rebutted the presumption of trafficking under s 17 of the Act; (4) the two voluntary statements given by Rozman were confessions which implicated Razali in very clear terms, and if true, could be accepted by the court as evidence against Razali; (5) the learned judge had not considered whether the explanation given by Rozman for retracting the statements was credible. Having regard to the evidence, the court was unable to accept Rozman's explanation; (6) an accused person could be convicted on his own confession, even if it was retracted, if the court was satisfied that it was made voluntarily and that it was true, and there was no need for corroborative evidence to support it. This principle applied equally to the present situation, where the confession was sought to be used against a co-accused; (7) what emerged from the facts, primary and inferential, were these: Rozman and Tan made arrangements for the sale and delivery of one kilogram of cannabis to Tan; Rozman negotiated the price for the cannabis and thereafter acted consciously and purposefully to procure the cannabis to sell to Tan;Rozman was not of unsound mind;bundle B came into Rozman's possession without any effort or inducement on the part of the CNB operatives, and it was never suggested that Rozman had been manipulated to bring along bundle B. The fact that he was educationally subnormal or suffering from some intellectual disability did not absolve him of any criminal responsibility for his actions;the confessions of Rozman as against Razali were cogently corroborated by the circum-stantial evidence; the totality of the circumstantial evidence supported fully what Rozman had said in the statements. Such circumstantial evidence and the statements, taken together, led irresistibly to the conclusion that Razali was engaged in a conspiracy with Rozman; that he abetted Rozman in the commission of the offence of trafficking in the drugs in bundle A; and that he knew that bundles A and B contained drugs.

Digest :

Public Prosecutor v Rozman bin Jusoh & Anor [1995] 3 SLR 317 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

480 Misuse of Drugs Act (Singapore) -- s 17

4 [480] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Trafficking – Whether rebutted – Whether drugs were for appellant's consumption

Summary :

The appellant was found to be in possession of eight big packets and 14 smaller packets of granular substance containing not less than 11.68g of heroin and 11.40g of heroin respectively, and a further 46 straws of granular substance containing 2.44g of heroin at the time of his arrest. After his arrest, the appellant, a drug addict, complained of withdrawal symptoms and was examined by one Dr Leow, who found the appellant to be a mild heroin abuser. In his defence, the appellant claimed that he was a trafficker in respect of the drugs in the eight big packets and the 46 straws. He admitted that the drugs in the 14 packets were for his own consumption. He said he consumed one 9.5cm straw of drugs each weekday and more on weekends. The amount of drugs in each 9.5cm straw was equivalent to that in three to four 3.5cm straws. In cross-examination, the prosecution sought to impeach his credit by referring to a s 121(1) statement made by him a day after his discharge from the hospital. The appellant claimed that the nine material portions of the statement which were contradictory to his evidence in court were untrue. The trial judge found many improbabilities in the defence. Further, he found that the prosecution had successfully impeached the appellant's credit. As a result, he disbelieved the defence of the appellant and convicted him of trafficking in more than 15g but less than 25.52g of heroin. On appeal, counsel for the appellant submitted that the trial judge had erred in finding (a) that the appellant's credit had been successfully impugned by the prosecution and (b) that the appellant was only a mild drug addict and not a moderate one.

Holding :

Held, dismissing the appeal: (1) the trial judge found that the statement and the appellant's evidence in court contained two irreconcilable versions and much of his evidence had been discredited by the prosecution. The trial judge was entitled to come to this conclusion; (2) the trial judge's view that the appellant had exaggerated his rate of consumption of heroin, and that he was only a mild abuser of heroin, was justified on the evidence before the court; (3) the appellant had not successfully rebutted the presumption of trafficking under s 17 of the Misuse of Drugs Act (Cap 185).

Digest :

Veerarajoo v Public Prosecutor [1995] 1 SLR 521 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

481 Misuse of Drugs Act (Singapore) -- s 17

4 [481] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Whether rebutted

Summary :

The appellant was convicted of trafficking in 24.97g of diamorphine under s 5 of the Misuse of Drugs Act (Cap 185) ('the Act'). On 19 June 1991, a team of narcotics officers mounted a surveillance operation in the vicinity of a bus stop along Woodlands Road. At about 10.30am, the appellant was seen walking along the pavement towards the bus-stop in the same direction as the traffic, carrying a white plastic carrier bag. The appellant then put the plastic bag on a seat of the bus stop and then went on to sit on the railings at the rear of the bus-stop. Thereafter he was arrested and the said drugs were recovered from the plastic bag. The appellant's fingerprints were found on the plastic bag. The appellant's defence during his trial was that he had found the plastic bag containing the drugs at the bus-stop and had touched it out of curiosity. The appellant's s 121 statement, which contained some inculpatory evidence, was admitted during the trial. On appeal it was contended on behalf of the appellant that his s 121 statement was made involuntarily and therefore had been wrongly admitted.

Holding :

Held, dismissing the appeal: (1) the appellant's s 121 statement was made voluntarily; (2) even without the statement, all other evidence gave rise to a strong irresistible inference that he knew the contents of the plastic bag and therefore had possession of the drugs found there. Once possession was proved, as had been proved in this case, the presumption of trafficking in the drugs under s 17 of the Act arose which the appellant had to rebut on a balance of probabilities and he had failed to do so.

Digest :

Lim Swee Thong v Public Prosecutor [1994] 1 SLR 713 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

482 Misuse of Drugs Act (Singapore) -- s 17

4 [482] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Whether rebutted

Summary :

The appellant was convicted of trafficking in 45.06g of diamorphine, an offence under s 5(a) and punishable under s 33 of the Misuse of Drugs Act (Cap 185) ('the Act'). He was arrested by police officers on 8 March 1993 at Tanjong Katong Road. At the time of his arrest, the appellant had in his possession a plastic bag containing the said drugs. When questioned by the arresting officer as to what the drugs were for, the appellant replied that he wanted to sell it to a Malay boy. On appeal it was argued by defence counsel that the drugs found in the appellant's possession were for his own consumption.

Holding :

Held, dismissing the appeal: (1) the evidence of the arresting officer relating to the appellant's oral statement was sufficient to warrant the conviction of the accused; (2) owing to the quantity of drugs found in the possession of the appellant, the presumption of trafficking in that quantity of drugs arose under s 17 of the Act and the appellant has not rebutted the presumption.

Digest :

Siew Sin Sin v Public Prosecutor Criminal Appeal No 68 of 1993 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

483 Misuse of Drugs Act (Singapore) -- s 17

4 [483] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Statutory presumption – Whether rebutted – Accused claiming to be mere custodian of drugs for third party

Summary :

The appellant was convicted of the offence of trafficking in not less than 105.24g of diamorphine, found in his possession in the apartment in which he rented a room. The diamorphine was found, along with the paraphernalia for packing the drugs into sachets, in a black Samsonite briefcase at the bottom of a locked cupboard. The appellant knew the combination lock number of the briefcase and the whereabouts of the key to the cupboard. The appellant admitted to possession of the drugs, but contended that he had merely kept the drugs for one Supramaniam as a favour. The learned judicial commissioner held that his version of events was incapable of belief. On appeal, counsel repeated the contention that his role was limited to that of a custodian.

Holding :

Held, dismissing the appeal: (1) by virtue of s 17 of the Misuse of Drugs Act (Cap 185), the appellant's act of possession was presumed to constitute both the actus reus and the mens rea of trafficking. The onus was upon the appellant to negate this on the balance of probability. The appellant's only evidence of his omission to traffic was his own statement to the officers and his oral testimony in court, which the trial judge had dismissed as inconsistent and incapable of belief; (2) furthermore, a review of the evidence revealed that there were positive indications that the appellant had not been an innocent bystander. Together with the presence of the presumption in s 17 of the Misuse of Drugs Act, the contradictions within the appellant's evidence and the learned trial judge's findings, they made the appellant's guilt plain.

Digest :

Ramond Selva Clement v Public Prosecutor [1994] 3 SLR 515 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

484 Misuse of Drugs Act (Singapore) -- s 17

4 [484] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Trafficking in a controlled drug – Presumption of trafficking – Accused found in possession of drugs – Prima facie case established – Common intention with co-accused immaterial – Whether accused suceeded in rebutting presumption on a balance of probabilities

See criminal law, para VII [53].

Digest :

Tan Chuan Ten & Anor v Public Prosecutor [1997] 2 SLR 348 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

485 Misuse of Drugs Act (Singapore) -- s 17

4 [485] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 17 – Trafficking in a controlled drug – Whether presumption of trafficking rebutted

Summary :

The appellant was charged with trafficking in not less than 26.07g of heroin on 7 July 1995. On the day of his arrest, following an operation mounted by CNB officers, the appellant was seen carrying a paper carrier bag containing two `Airmail' envelopes with S$6,000 and a handphone inside, and a key in his hands. These items, together with a pager, were seized from him. The appellant subsequently led the CNB officers to his flat whereby the key which was seized from him was used to open the door of his flat. A search of the flat resulted in the discovery of 31 sachets of heroin and other drug related items. The scientific analysis revealed that the 31 sachets seized contained, in total, not less than 26.07g of diamorphine. There was no dispute by the defence that the appellant was in exclusive possession of the 31 sachets of substance containing 26.07g nett of diamorphine. Thus the prosecution, having proved beyond a reasonable doubt that the appellant possessed the heroin in question, could rely on the presumption of trafficking under s 17 of the Misuse of Drugs Act (Cap 185). The onus lay on the appellant to rebut this presumption on a balance of probabilities. The crux of the defence was that all the heroin was for the appellant's personal consumption. To prove that the appellant was a severe addict who could consume so much heroin, Drug Rehabilitation Centre records were tendered and expert evidence was adduced to show that it was possible for the appellant to attain a high level of consumption in a short period of time through a phenomenon known as `reinstatement'. However, the prosecution's expert evidence disputed the theory of `reinstatement' and contended that there was a direct correlation between drug withdrawal symptoms and the severity of addiction. Thus, in view of the appellant's past drug detention records and withdrawal symptoms displayed on the night of his arrest, the prosecution contended that he was not a severe addict. Defence counsel further argued that, as the appellant had shared his drugs with his girlfriend, Siti, the court should deduct the quantity consumed by the latter. The trial judge rejected the defence's expert evidence and concluded that the appellant was a moderate drug addict. Thus, the personal consumption defence failed. He found that the appellant was buying heroin in larger quantities and repacking it in empty plastic sachets for the purpose of trafficking. He also did not accept defence counsel's argument that the quantity of heroin consumed by Siti should be taken into account. Consequently, the trial judge held that the appellant had failed to rebut the presumption in s 17 of the Misuse of Drugs Act and sentenced him to death. The appellant appealed.

Holding :

Held, dismissing the appeal: (1) even if the appellate court adopted a view that was most favourable to the appellant by accepting the `reinstatement' theory', the onus was still on the appellant to prove that it was more likely than not that he was a severe addict before he could even begin to rebut the presumption of trafficking. Mere reliance on the textbook phenomenon of `reinstatement' per se to claim that he had increased his heroin dosage dramatically such that, at the time of his arrest, he was a severe addict, was insufficient to rebut the presumption of trafficking; (2) where the respective theories tendered by expert witnesses had been carefully and dispassionately weighed by the trial judge, and a clear conclusion in fact having been reached by him, it would not be proper or safe, or in accordance with sound practice, that an appellate court should reverse the conclusion in fact at which he arrived. Based on the approach of value, impressiveness and reliability taken by the trial judge, there were no reasons to reverse his finding that the appellant was only a moderate addict; (3) under the meaning of `give' in the Misuse of Drugs Act, it would not be open to an accused to argue that there should be an apportionment of drugs simply on the basis that he had shared some of it gratuitously with another person. On the contrary, once the court had found that an accused `gave' drugs - and this contemplated only a physical act without reference to ownership - to another for whatever reason, be it for consumption or safekeeping, the accused would also be liable for trafficking in that amount which he had given; (4) on the facts, the trial judge was correct to hold that by leaving the heroin in the open tissue box, the appellant was inviting Siti to partake in consuming drugs. Although he never handed the heroin personally to Siti, the act of making the heroin available in the tissue box, knowing that Siti knew where to obtain the drugs for consumption was clear evidence that he intended to part with the ownership of the heroin in question and `give' the same to her. It was as if he were placing the heroin in her hands. He was thus guilty of trafficking in the amount which he had given to her as well. Based on the totality of the evidence, the appellant had failed to rebut the presumption of trafficking.

Digest :

Muhammad Jeffry v Public Prosecutor [1997] 1 SLR 197 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Chao Hick Tin JJ).

486 Misuse of Drugs Act (Singapore) -- s 18(1)(a), (2)

4 [486] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 18(1)(a), (2) – Statutory presumption – Rebuttal of presumption of knowledge of substance – Burden of proof

Summary :

The accused was charged with importing 3,468g of diamorphine in contravention of s 7 of the Misuse of Drugs Act. A prima facie case was made out that the accused had imported the heroin under s 18(1)(a) and (2) of the Misuse of Drugs Act, and the presumption arose under those sections that the accused was in possession of the substance and knew that the substance was heroin. The accused claimed that he had been befriended by a wealthy gem trader in Bangkok who, knowing he was an illegal Burmese immigrant in Thailand, offered him an opportunity to carry gems for him out of Thailand via Singapore to the Philippines for US$3000. All travel arrangements, including a false passport for the accused's use, and contacts in Singapore and the Philippines were made by the gem trader and a third person for the accused. The accused was given a packed bag and told that the bag would be checked through to the Philippines and that he would not have to collect it. While in transit in Singapore, the accused was instructed by airline staff to collect the bag and then reboard for the flight to the Philippines. While collecting the bag, he was approached by a customs officer who directed him to a counter and emptied the bag. This was the first time the accused had opened the bag. The customs officer asked the accused to accompany him. The bag was again emptied and a senior customs officer cut its lining and asked the accused what was inside, to which he replied 'stones'. The accused's view of the cut in the bag was obscured and he could not see the white powder. The substance was then tested and after the test was complete, the accused asked the customs officer if the contents were drugs. The accused was questioned by a customs duty surveillance officer and he explained the background to his involvement. The customs duty surveillance officer later made a note of this conversation with the accused. The customs duty surveillance officer did not provide the CNB officers with a copy of these notes. The accused was later formally charged with the offence of importing diamorphine and a statement was taken under s 122(6) of the Criminal Procedure Code ('the CPC') in which he indicated that he had nothing to say.

Holding :

Held, acquitting and discharging the accused: (1) by s 18(1)(a) of the Misuse of Drugs Act read together with s 18(2), a presumption arises that the accused was in possession of the powder and knew that it was heroin. The onus was then on the accused to rebut this presumption. On the balance of probabilities, the court was satisfied that the accused did not know that the bag contained heroin; (2) possession was not disputed in this case and the rebuttal of the presumption turned on the evidence which required the court to be satisfied that the claim that the accused did not know that the substance was heroin was more likely to be true than not. The mere possibility that the claim may be true was insufficient; (3) the existence of the gem trader and his involvement in making the arrangements for the accused was conclusively established by the extensive investigations of the defence counsel and the assertion that the accused was a courier of gems could no longer be challenged. It then became a question of whether the accused ought to have known that he was carrying heroin instead. The evidence of the accused was accepted and this presumption was rebutted; (4) no adverse inferences were drawn from the fact that the accused did not make any comment in his s 122(6) statement. The accused had given information to the chief customs officer prior to the s 122(6) statement and there may well have been some miscommunication with the accused about the need for him to give a statement under s 122(6); (5) in relation to the notes of the conversation with the customs duty surveillance officer, very little weight could be given to any details of a conversation which was only transcribed into writing many hours later.

Digest :

Public Prosecutor v Hla Win Criminal Case No 2 of 1995 High Court, Singapore (S Rajendran J).

487 Misuse of Drugs Act (Singapore) -- s 18(4)

4 [487] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 18(4) – Statutory presumption – Drugs found on one appellant with knowledge and consent of the other – Common intention – Knowledge and consent – Agreement between appellants to deal in drugs – Penal Code (Cap 224), s 34

Summary :

The appellants were charged with trafficking in 600.8g of diamorphine and 9,317g of opium in furtherance of the common intention of them both. The appellants had negotiated with one Michael, a narcotics officer, for the sale of the drugs to be packed in tin cans. They had arranged to deliver the drugs at Sea View Hotel where they were arrested. The trial judge found the appellants guilty of the charges against them. He rejected the first appellant's defence that he did not know the contents of the tin cans and found that the first appellant played an important role as the person who determined the price of the drugs and the person who brought the drugs into Singapore from India. As for the second appellant, the trial judge found that he was not a truthful witness and that he was the principal negotiator in the sale of the drugs. The trial judge also found that the second appellant knew that the first appellant had the drugs with him on the day of the latter's arrest and that the second appellant consented to the first appellant carrying the drugs for delivery to Michael pursuant to the agreement to sell the drugs to Michael. The appellants therefore had joint possession of the cans containing diamorphine and opium. The trial judge finally held that there was overwhelming evidence of common intention on the part of each of the appellants to traffic in the drugs. The appellants appealed. The first appellant sought, inter alia, to challenge the trial judge's finding that he had knowledge of the contents of the can in which the drugs were found. The second appellant argued firstly that the trial judge failed to give sufficient consideration that no drugs were found on him, secondly, that he had no knowledge of the first appellant's intention to traffic in drugs and thirdly, that the trial judge had erred in finding a common intention to traffic in drugs.

Holding :

Held, dismissing the appeal: (1) the first appellant's first ground of appeal, ie that he was merely an innocent carrier for the second appellant for the traffic of drugs has no merit. There was no reason to disagree with the trial judge's finding that the first appellant played an important role in the sale of drugs to the extent that he determined the price and went to India to bring in the drugs. The evidence showed that when the issue of the price of the drugs came up, the second appellant had to confer with the first appellant before giving a reply. The trial judge had disbelieved the first appellant's allegation that he did not know English. There is no reason to disagree with the trial judge's findings since he had the advantage of being able to observe the witnesses and assess their credibility; (2) further, the first appellant's defence was all the more tenuous for the following reasons. By the appellant's own evidence, he knew enough English to complete the immigration forms when he entered Singapore. It is difficult to believe that what little conversation he had with Michael was done solely with hand signals. His unquestioning nature was, to say the least, incredible. He readily acted on the second appellant's instructions without question on many occasions; (3) whether the first appellant had knowledge of the contents of the can in which the drugs were found is a question of fact arrived at by the judge based on the truthfulness and veracity of a witness before him. The appellate court would and should be slow to intervene in such a situation. At most, the first appellant could argue that there was some dispute as to whether the first appellant handed Michael the whole bag or plastic bag with two cans or just the partially opened can. This however, does not distract from the undeniable fact that there was in existence a partially opened can from which the trial judge drew inferences that the first appellant must have known the contents of the can. More importantly, the court doubted that the appellant had succeeded in rebutting the presumption of possession and knowledge raised against him in s 18(1) and (2) of the Misuse of Drugs Act; (4) the trial judge had found as a fact that the second appellant negotiated with Michael for the sale of drugs. Although the drugs were found in the possession of the first appellant, the second appellant clearly knew and consented to it in that there was an agreement between the appellants to deal with the drugs. By the same token, common intention to traffic in drugs was manifest from the circumstances. The appellants acted in concert pursuant to a prearranged plan to sell the drugs.

Digest :

Hartej Sidhu & Anor v Public Prosecutor [1994] 2 SLR 598 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

488 Misuse of Drugs Act (Singapore) -- s 18

4 [488] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 18 – Statutory presumption – Onus on accused to rebut presumptions – Ownership of drugs immaterial

Summary :

The appellant was convicted of importing 2,388g of diamorphine into Singapore, an offence under s 7 and punishable under s 33 of the Misuse of Drugs Act (Cap 185) ('the Act'). The appellant arrived at Changi International Airport on 20 December 1990 from Bangkok. He was arrested at the Day Room Centre at the Airport and found to be in possession of the said drugs which were recovered from a suitcase belonging to the accused. The appellant's defence during his trial was that he did not know diamorphine was contained in the suitcase and that he was carrying it for someone whom he had met on board the plane from Bangkok. The trial judge found the appellant guilty irrespective of whether the suitcase and the drugs were his. On appeal, it was argued by the appellant that the trial judge had erred when he accepted that the appellant's evidence that the contents of the suitcase did not belong to the appellant and yet found that this was not an answer to the charge of importation.

Holding :

Held, dismissing the appeal: (1) and (b) to know the nature of the drug by virtue of s 18(2). The onus was then on the appellant to rebut the two presumptions on a balance of probabilities. The appellant has not rebutted these presumptions; (2) in such a case as this, the initial onus was on the prosecution to prove possession of any thing containing a controlled drug (in this case, the suitcase and the keys to the suitcase), after which the appellant was presumed; (a) to have the drug in his possession by virtue of s 18(1) of the Act;even if the appellant's contentions were true that the drugs did not belong to him, he was still found with the possession of the drugs. Ownership of the drugs was immaterial for the offence that the appellant had been found guilty of.

Digest :

Mufutaw Salam v Public Prosecutor Criminal Appeal No 12 of 1993 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

489 Misuse of Drugs Act (Singapore) -- s 18

4 [489] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 18 – Statutory presumption – Possession – Suitcase containing controlled drug checked in at airport and in custody of airport staff – Whether accused had possession of suitcase – Whether possession means physical possession

Digest :

Van Damme Johannes v Public Prosecutor [1994] 1 SLR 246 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See CRIMINAL LAW, Vol 4, para 550.

490 Misuse of Drugs Act (Singapore) -- s 18

4 [490] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 18 – Statutory presumption – Presumption of knowledge of nature of drug – Statements to police – Effect of not including material facts of defence in s 122(6) statement – Good character of accused – Relevance in establishing credibility of accused – Criminal Procedure Code (Cap 68), ss 122(6) & 123 – Evidence Act (Cap 97, 1990 Ed), ss 55 & 56

Summary :

The appellant, a female Hong Kong resident, was tried and convicted on a charge of importing a controlled drug into Singapore, an offence under s 7 of the Misuse of Drugs Act (Cap 185) ('the Act') and punishable under s 33 of the Act. On 26 July 1992, the appellant arrived in Changi Airport. A routine customs search of her two bags revealed a total of 22 packets of substance containing not less than 4,103.7g of diamorphine within the linings of two winter jackets found inside the two bags. Her defence at trial was that she was carrying hashish (cannabis). On appeal, the appellant contended that the trial judge failed to consider the good character evidence of the appellant and that the judge had erred in finding that the appellant had not, on a balance of probabilities, established lack of knowledge of the drugs seized from her.

Holding :

Held, dismissing the appeal: (1) evidence of good character is generally relevant to the credibility of an appellant as a witness. However, because of the nature of the appellant's defence and her own admission at trial that she thought she was carrying cannabis into Singapore, the evidence of her good character and good family background would not be of any material assistance to rebutting the presumption in s 18 of the Act; (2) the appellant, having admitted to be in possession of the drugs, had failed to discharge the burden placed on her to rebut the presumptions under s 18(2) of the Act; (3) (per curiam) if an accused refused to include or mention in her s 122(6) statement any particulars of the defence which she wished to rely on at trial, the court is entitled to draw such inferences from that failure as might appear proper at the trial.

Digest :

Tsang Kai Mong Elke v Public Prosecutor [1994] 1 SLR 651 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

491 Misuse of Drugs Act (Singapore) -- s 18

4 [491] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 18 – Statutory presumption – Presumptions of possession and knowledge – Whether appellant had successfully rebutted presumptions

Summary :

The appellant was convicted on a charge of trafficking 9,504g of cannabis. As a result of a Central Narcotics Bureau (CNB) operation, the appellant was introduced by an informer known as 'Amin' to an undercover CNB agent at the McDonald's restaurant in Boon Lay. A deal for the sale of the drugs was negotiated and concluded. Subsequently the CNB agent and the appellant boarded the former's car and drove towards a carpark in front of the McDonald's where the appellant had intimated that his friend would be waiting. As they entered the carpark, they alighted from the car. The appellant's friend then arrived in another car and pulled up in front of them. The appellant proceeded towards his friend's car and retrieved a bag from the rear passenger seat of the car which he subsequently placed in the trunk of the CNB agent's car. The contents of the bag were later analyzed to be 9,504g of cannabis. Apart from one Cpl Chua, all the other CNB officers who testified had seen the appellant handle the bag containing the drugs. At trial the prosecution sought to admit the appellant's statement made under s 122 of the Criminal Procedure Code (Cap 68). The appellant challenged the voluntariness of the statement. At a trial within a trial, the statement was found to be voluntarily made and was admitted into evidence. On appeal, a number of grounds of appeal were raised. Firstly, the two statements made should have been inadmissible. Secondly there were several facets of the case which rendered it unsatisfactory, namely, there were no fingerprints to incriminate the appellant and the evidence of one Cpl Chua, which produced a discrepancy in the prosecution case, should have been held in favour of the appellant. Finally, the non-production of Amin, the informer, should have raised a presumption against the prosecution under s 116 illustration (g) of the Evidence Act.

Holding :

Held, dismissing the appeal: (1) words to the effect of 'you had better tell the truth' or its equivalent could not, in the circumstances, amount to a threat or inducement. Each case had to be looked at individually. Although the words were coupled with further statements that the appellant would be beaten up and sent to the gallows, they were not sufficient to give the appellant any reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature by giving the statements. In any event the trial judge's finding that the appellant was lying and that there were no such threats or inducements would not be disturbed; (2) although the fingerprint expert was not called and there were no prints to implicate the appellant, there was no primary or statutory obligation to undertake a fingerprint examination, particularly in this case where the appellant was apprehended with the offending material. In any event, once possession was prima facie established, it was for the appellant to explain how he came into possession of the drugs. There was no impropriety on the part of the investigating officers to suppress any evidence which might support the appellant's case; (3) the discrepancy between Cpl Chua's evidence from the rest of the other CNB officers' evidence could be attributed to a faulty observation or recollection on Cpl Chua's part at that time. In the circumstances, the discrepancy was minor and not fatal to the prosecution case in light of the overwhelming evidence in the prosecution's favour. There was no reason to overturn the trial judge's findings that the other CNB officers were not witnesses of truth as there was no basis on which the trial judge had unreasonably come to that conclusion; (4) quite apart from the statutory protection afforded to informers under s 23 of the Misuse of Drugs Act, the non-production of Amin did not affect the outcome of the case as there was overwhelming evidence in favour of the prosecution.

Digest :

Osman bin Din v Public Prosecutor [1995] 2 SLR 129 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

492 Misuse of Drugs Act (Singapore) -- s 18

4 [492] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 18 – Statutory presumption – Whether rebutted

Summary :

The appellant, a Nepalese national, was convicted of having imported 1,004.1g of diamorphine into Singapore under s 7 and punishable under s 33 of the Misuse of Drugs Act (Cap 185) ('the Act'). The appellant was arrested on 11 February 1993 at Changi International Airport upon his arrival from Haadyai. The said drugs were recovered from the inner linings of a bag the appellant was carrying. The appellant's defence during his trial was that he thought the bag contained opium. The bag was handed to him by a friend in Bangkok. The same defence was mounted on appeal.

Holding :

Held, dismissing the appeal: by virtue of s 18(2) of the Act the appellant was presumed to know the nature of the drug he was carrying and on the facts the presumption had not been rebutted.

Digest :

Budha Man Gurung v Public Prosecutor Criminal Appeal No 67 of 1993 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

493 Misuse of Drugs Act (Singapore) -- s 29

4 [493] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 29 – Mandatory death penalty – Discrimination between classes of traffickers – Whether constitutional

Digest :

Ong Ah Chuan v Public Prosecutor and another appeal [1981] 1 MLJ 64 Privy Council Appeal from Singapore (Lord Diplock, Lord Keith of Kinkel, Lord Scarman and Lord Roskill).

See CRIMINAL LAW, Vol 4, para 456.

494 Misuse of Drugs Act (Singapore) -- s 2

4 [494] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 2 – 'Anything that contains' – Meaning of

Digest :

Sim Mai Tik v Public Prosecutor [1988] 3 MLJ 363 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, LP Thean and Rajah JJ).

See CRIMINAL LAW, Vol 4, para 610.

495 Misuse of Drugs Act (Singapore) -- s 2

4 [495] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 2 – 'Controlled drug' – Meaning of

Digest :

Public Prosecutor v Sim Mai Tik [1987] 2 MLJ 578 High Court, Singapore (TS Sinnathuray J and Chan Sek Keong JC).

See CRIMINAL LAW, Vol 4, para 611.

496 Misuse of Drugs Act (Singapore) -- s 2

4 [496] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 2 – 'Controlled drug' – Trafficking – Burden of proof

Summary :

The two appellants, T and L, were charged jointly for trafficking in 459.3g of diamorphine, an offence under s 3(a) of the Misuse of Drugs Act 1973. The facts showed that on 3 September 1976, two narcotics officers observed the appellants emerging from Block A of Far East Mansions, Kim Yam Road, Singapore, and walking towards a parked car. T was carrying a plastic bag. On reaching the car, T handed the plastic bag to L and unlocked the car door. They then drove to Dickson Road followed by the two narcotics officers. At Dickson Road, L alighted from the car carrying the plastic bag. Cheong, one of the narcotics officers, went up to her and identified himself and asked her what was in the said plastic bag. L looked stunned and dropped the plastic bag. Cheong seized the plastic bag and after a violent struggle arrested her. T was also arrested by Teo, the other narcotics officer. The plastic bag was found to contain brownish solids which were analysed by the government chemist and found to contain 459.3g of diamorphine. Both appellants denied knowledge of the contents of the said plastic bag. They did not call any witness to give evidence on their behalf. The learned trial judges found them guilty as charged. They appealed against their convictions.

Holding :

Held, dismissing the appeals: (1) it is a fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This is a common law rule which is not embodied in any legislative enactment but is English in origin; (2) s 3 of the Misuse of Drugs Act prohibits trafficking in a controlled drug save in the circumstances specified therein. Consequently, the prosecution was under no necessity to prove a prima facie case of lack of authorization and it was for each appellant to prove that he or she was authorized to do the prohibited act; (3) under the Misuse of Drugs Act, where a person is in possession of a bag which contains in fact a controlled drug, it is presumed that he is in possession of and knows the nature of the controlled drug unlike in the United Kingdom, where there is only a prima facie strong inference that he is in possession of its contents; (4) thus under the said Act, the burden rests on the accused to prove on a balance of probabilities that he was not in possession of and did not know the nature of the controlled drug which was contained in the bag.

Digest :

Tan Ah Tee & Anor v Public Prosecutor [1980] 1 MLJ 49 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and Chua JJ).

497 Misuse of Drugs Act (Singapore) -- s 2

4 [497] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 2 – 'Traffic' – 'Delivery' – Whether intended return of drugs to owner constituted delivery within the meaning of trafficking

Digest :

Lee Yuan Kwang & Ors v Public Prosecutor [1995] 2 SLR 349 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See CRIMINAL LAW, Vol 4, para 603.

498 Misuse of Drugs Act (Singapore) -- s 2

4 [498] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 2 – 'Traffic' – Meaning of 'transport' – Statutory presumption

Digest :

Wong Kee Chin v Public Prosecutor [1979] 1 MLJ 157 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 572.

499 Misuse of Drugs Act (Singapore) -- s 2

4 [499] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 2 – 'Traffic' – Meaning of 'transport' – Transportation for own consumption not trafficking

Digest :

Ong Ah Chuan v Public Prosecutor and another appeal [1981] 1 MLJ 64 Privy Council Appeal from Singapore (Lord Diplock, Lord Keith of Kinkel, Lord Scarman and Lord Roskill).

See CRIMINAL LAW, Vol 4, para 456.

500 Misuse of Drugs Act (Singapore) -- s 2

4 [500] CRIMINAL LAW Misuse of Drugs Act (Singapore) – s 2 – 'Traffic' – No evidence of trafficking – Evidence of past criminal activities tendered – 'Trafficking' distinguished from 'possession'

Digest :

Poon Soh Har & Anor v Public Prosecutor [1977] 2 MLJ 126 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Choor Singh and D'Cotta JJ).

See CRIMINAL LAW, Vol 4, para 460.

1