Hooman Khanloo v Public Prosecutor [2015] 5 MLJ

Court of Appeal

Criminal Procedure – Trial – Dangerous Drugs Act 1952 (Act 234) (‘DDA’)

1.      The Appellant, an Iranian national, was convicted and sentenced to death for trafficking 61.74g of methamphetamine.

2.      Police found the drugs in a hotel room rented by the Appellant, along with his wristwatch and passport in a drawer.

3.      The Appellant’s urine tested positive for methamphetamine.

4.      A police officer testified that the Appellant appeared panicky during the search and was shocked and frightened when the drugs were found.

5.      The Appellant claimed he had no knowledge of the drugs and suggested they could have been placed by his friends or hotel housekeeping.

6.      However, the trial Court dismissed the Appellant’s defence as implausible, ruled that he knowingly possessed the drugs, and applied the presumption of trafficking under Section 37(da) of the Dangerous Drugs Act [Act 234] (“DDA”).

7.      During appeal, the Appellants also argued that the prosecution did not prove he had exclusive use and possession of the hotel room and drugs.

1.      Whether the prosecution had to prove that the Appellant had exclusive use of the hotel room and exclusive possession of the drugs.

2.      Whether the presumption under Section 37(d) of the DDA must be invoked when it was proved that the Accused had custody or control of drugs.

3.      Whether the Appellant failed to rebut the presumption of trafficking or cast a reasonable doubt on the prosecution’s case.

Ratio

1.    Whether the prosecution had to prove the Appellant had exclusive use of the hotel room

(a)      The Court held that there was no requirement under the law that the prosecution must prove the Appellant had exclusive use of the room.

(b)      Similarly, there is no requirement for the prosecution to prove that the Appellant had sole possession of the drugs to invoke the presumption of trafficking.  It is sufficient by only proving that the Appellant was in the same room where the drugs were found.

(c)      Therefore, since the Appellant’s mens rea possession was already proven by the prosecution, the Court held that whether he had exclusive use of the room was irrelevant.

(d)      The Court also found no merit on the Appellant’s argument.

(e)      It was also highlighted in the judgement that in order to prove a charge under Section 39B of the DDA, the prosecution must show that the accused possessed the drugs and without having to prove the exclusive possession of the room.

2.    Whether the presumption under Section 37(d) of the DDA must be invoked when it was proved that the Accused had custody or control of drugs

(a)      Given that the drugs was found in the Appellant’s possession at the time of his arrest, it is reasonable to infer that he also had custody or control of the same drugs.

(b)      Under Section 37(d) of the DDA, the Appellant is presumed to have knowledge of the drugs, thus the legal burden has shifted to him to prove otherwise.

(c)      Furthermore, according to Section 37 of the DDA, the Court held that the presumption of knowledge under Section 37(d) remains valid even when the presumption of trafficking under Section 37(da) applies to the Appellant.

(d)      There is a distinction between these two presumptions: trafficking is assumed based on “possession,” whereas knowledge is assumed based on having custody or control of the drug.

(e)      The Court referred to the case of Public Prosecutor v Denish a/l Madhavan [2009] 2 MLJ 194 –  

“that proof of possession need not be exclusive to the accused. It is therefore unnecessary for the prosecution to prove exclusive possession of the drug…”

(f)        Regarding knowledge, it is a necessary requirement for drug trafficking as it is the sine qua non of ‘possession’.  Section 37(d) of the DDA provides as below:

 “37. In all proceedings under this Act or any regulation made thereunder –

(a)  any premises shall be deemed to be used for a purpose if they are used for that purpose even on one occasion only;

(b)  a person, until the contrary is proved, shall be deemed to be the occupier of any premises, if he has, or appears to have, the care or management of such premises;

(c)  if any syringe and dangerous drug suitable for hypodermic injection, or any pipe and dangerous drug suitable for smoking be found in any premises, it shall be presumed, until the contrary is proved, that the premises are used for the purpose of the administration of a dangerous drug to, or the smoking or consumption otherwise of a dangerous drug by, a human being and that the occupier permits such premises to be used for such purpose;

(d)  any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.”

(g)      The Court ruled that a trial judge does not required to invoke the presumption under Section 37(d) of the DDA if there is already sufficient evidence of direct possession and knowledge that can be inferred from proven facts.

(h)      The presumption under Section 37(d) of the DDA is only intended to allow the court to assign knowledge when there is no direct evidence from which to draw an inference of knowing against the accused person.

(i)        The Court is of the view that the presumption of possession of the aforementioned drugs only applies to any person found to have had anything containing dangerous drugs in his possession or under his control but not to any dangerous drugs discovered in the accused person’s physical custody or control.

(j)        Thus, if the evidence shown to the Court is sufficient to prove knowledge, the presumption shall not be applied.

3.    Whether the Appellant failed to rebut the presumption of trafficking or cast a reasonable doubt on the prosecution’s case

(a)      The Appellant had attempted to raise a defence of ‘no knowledge,’ but the defence did not address the requirement to prove that the drugs was not intended for trafficking.  Consequently, the presumption of trafficking remained unrebutted.

(b)      The Appellant also did not provide explanation to the Court on how did his wristwatch and passport ended up in the same drawer as the drugs.  Although he suggested the possibility that someone else left the drugs in the room, this claim had to be assessed.

(c)      On the evidence, it was shown that the Appellant’s defence was a bare denial.  He did not provide any reasonable explanation as to why did he become panic during the search and asked to be released when the drugs was found.

(d)      By virtue of Section 9 of the Evidence Act 1950, he is required to explain his conduct.  Reference was made to the case of Parlan bin Dadeh v Public Prosecutor [2008] 6 MLJ 19 –

 “A bare denial is not sufficient to dislodge the evidence established by the prosecution.”

(e)      The trial judge found that it was insufficient to rebut the presumption of knowledge.  Therefore, the Court held that the Appellant’s defence was a late fabrication intended to avoid responsibility.

1.    According to the golden statutory interpretation, common words should be understood in their ordinary meanings and technical words in their technical meanings, unless it leads to unreasonable interpretation.

2.    There are two things presumed under Section 37(d) of the DDA.   The first is ‘possession’ of the drugs, secondly ‘knowledge’ as to the nature of the drugs.

3.    In Public Prosecutor v Hamid Shamsi Kavishashi [2015] 3 CLJ 789, the Court held that the term ‘possession’ in Section 37(d) of the DDA cannot be interpreted strictly as it is understood in criminal law, which requires both physical and mental elements.