SOO TING YU v PP [2024] MLRAU 2024

COURT OF APPEAL

CRIMINAL PROCEDURE – SENTENCING – DRUG TRAFFICKING

Facts

1.      On 29 March 2019, a police team led by PW6 went to South City Hotel, Kuala Lumpur upon receiving information related to drug trafficking.

2.      Once arrived, they went to Room 307 where the Appellant stayed and while in the room, the police found no incriminating items on the Appellant. They only found the Appellant’s personal belongings ie identity card, passport and handphone on the table inside the room.

3.      PW6 then asked the Appellant regarding the whereabouts of the drugs to which the Appellant had pointed towards the bed.

4.      After searching the bed, the police had found a plastic bag containing drugs which were kept in six (6) separate plastic packings under the said bed.

5.      The drugs were sent for analysis and it was later found out to be Ketamine weighing 1687.1 gram, a dangerous drug under the First Schedule of the Dangerous Drugs Act 1952 (“Act 234”).

6.      The Appellant was convicted and sentenced to death after the learned Judicial Commissioner (“JC”) held that the Appellant was in possession of the drugs and had intended to traffic the said drugs.

7.      The Appellant then appealed against his conviction.

Issues

1.    Whether the learned JC had failed to sufficiently assess the evidence indicating that the Appellant did not possess the hotel room and the drugs found inside exclusively.

1.    Whether the learned JC had failed to sufficiently assess the evidence indicating that the Appellant did not possess the hotel room and the drugs found inside exclusively.

(a)  The Appellant contended that the conviction against him was not based on reliable evidence since the prosecution had failed to demonstrate that the Appellant had an exclusive control over Room 307 and that third parties were unable to access it because the police did not investigate who had access to the said room prior to the Appellant checking in.

(b)  The Appellant’s defence was that the drugs might be planted by another occupier who had stayed there or that he might have been framed by Alex who he claimed to be someone who had promised to find him job in Kuala Lumpur.

(c)  However, the Court held that the act of the Appellant pointing towards the bed indicated that he was aware of the drugs beneath the bed and it clearly suggested that he was the individual who concealed them there.  Furthermore, the Appellant was alone during the raid and the room was registered under the Appellant’s name.

(d)  It was unreasonable and unlikely to say that the drugs were planted by other people due to the fact that no one would simply left such a high value subject matter like drugs unattended especially when it was found out that the approximate value of 1 kilogram of ketamine itself was about RM50,000.00.

(e)  Reference was made to Section 27 of the Evidence Act 1950 (“Act 56”) which provides that –

“How much of information received from accused may be proved

27. (1) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.”

(f)     The above provision clearly stated that information admissible under Section 29 of the Act 56 includes not only the accused’s statement but as well as his act or conduct such as pointing out which led distinctly to the discovery of a fact.

(g)  Therefore, the Court held that the act of the Appellant’s action of indicating towards the bed, which subsequently led to the discovery of the drugs, was pertinent and admissible under Section 27 and Section 8 of the Act 56.

(h)   Section 8 of the Act 56 goes on to explain that any fact which shows the existence of a motive can be relevant. This provision provides that –

“8. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue of relevant fact.

(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

(i)      In this present case, the Appellant’s awareness of the drugs concealed beneath the bed implies that only the Appellant and not any hotel guest, could have hidden the drugs in that location.

The Court of Appeal unanimously dismissed the Appellant’s appeal and affirmed the conviction.  However, the Court commuted the death sentence and substituted it with 30 years imprisonment and 12 strokes of cane since there were strong mitigating factors which did not warrant the death sentence.

1.      In the case of drug trafficking, the Court must be satisfied that the accused had exclusive possession of the dangerous drug to sustain a conviction for trafficking.

2.      Pursuant to Section 37 (da) of the Act 234, the ingredients to prove the offence of drug trafficking includes –

(a)    The substance must be a dangerous drug,

(b)    The accused has custody and control over the dangerous drugs,

(c)    The weight of the dangerous drugs exceeded the permitted limit, and

(d)    The accused had knowledge of the nature of the dangerous drugs.

3.      In the present case, although the Appellant did enter his defence to cast doubt against the prosecution’s case, his defence was simply one of denial and protestation of innocence when the Appellant suddenly denied that he had pointed to the bed when he is being asked by the police about the drugs.

4.      The Appellant’s defence stating that he had been framed by Alex or that the drugs had been left by previous hotel guest did not raise any reasonable doubt at all since the hotel receptionist on duty was never being cross-examined to prove that the Appellant’s occupation of the room was determined earlier by Alex and that the said room had been arranged earlier to be allocated for the Appellant.

5.      The fact that the Appellant knew the drugs were under the bed already suggested that he was the one who had concealed it under the bed and he indeed had knowledge of it and was in possession of it.