[1998] 4 CLJ PP v.

Ong Cheng Heong 209

PP a

v.
ONG CHENG HEONG
HIGH COURT MALAYA, KANGAR b
VINCENT NG J
[CRIMINAL TRIAL NO: 45-01-98]
17 SEPTEMBER 1998
[1998] CLJ JT(11)
CRIMINAL LAW: Dangerous Drugs Act 1952, s. 39B(1)(a) - Trafficking in c
cannabis - End of prosecution - Whether prima facie case made out - Meaning
of prima facie - Dangerous Drugs Act 1952, ss. 37(d), 37(da), 37(h), 39B(1)(a)
- Criminal Procedure Code, ss. 180, 182A
CRIMINAL LAW: Dangerous Drugs Act 1952, s. 39B(1)(a) - Possession of d
cannabis - Meaning of possession - Whether must prove exclusivity of custody
and control - Dangerous drugs recovered from boot of motorcar - Accused
in control and management of vehicle - Whether ipso facto putting accused
in custody and control of all items therein
CRIMINAL PROCEDURE: Prosecution - Close of prosecution - Prima facie e
case - Degree of proof required to establish prima facie case - Whether proof
beyond reasonable doubt - ‘Prima facie’ - Whether of one and same import
as ‘beyond reasonable doubt’ - Evaluation of evidence - Whether ‘maximum
evaluation’ coterminous with ‘beyond reasonable doubt’ - Criminal Procedure
Code, ss. 180, 182A f

CRIMINAL PROCEDURE: Prosecution - Close of prosecution - Trafficking

in cannabis - Proof - Prima facie standard of proof - Precise nature and
quantity of drugs - Whether required proof beyond reasonable doubt -
Dangerous Drugs Act 1952, s. 39(B)(1)(a)
g
EVIDENCE: Expert evidence - Evidence of chemist - Dangerous drugs -
Trafficking in cannabis - Testimony by chemist that cannabis is also Indian
Hemp - Whether charge unsustainable - Test carried out on 179.40 grams
of samples - Whether fatal to charge of trafficking - Whether necessary to
test at least 200 grams of plant material - Dangerous Drugs Act 1952, ss. 2, h
39B(1)(a)
EVIDENCE: Presumption - Section 114(g) Evidence Act 1950 - Tendering
of bank withdrawal slips - Failure to call bank officer - Whether adverse
presumption to be drawn against prosecution - General provision in s. 114 -
Whether applicable to items not in search list i
 Current Law Journal
210 1998 [1998] 4 CLJ

a The accused was charged under s. 39B(1)(a) of the Dangerous Drugs Act 1952
(‘the Act’) for trafficking in 2,870g of cannabis at a police road block at
Simpang Empat, Perlis. The offensive drugs were recovered from the boot of
a car (‘P12’) owned and driven by the accused. The chemist testified that the
samples of the plant material that he tested, which grossed 179.40g were
b cannabis as defined under s. 2 of the Act, but added that cannabis was
synonymous with Indian Hemp. The chemist evidence apart, PW6, the front
passenger of P12 at the material time, affirmed however that: (i) he never saw
the accused putting anything into P12’s boot; (ii) he and the accused had slept
at one Ah Aun’s house at No. 13, Jalan Indah, Taman Indera Indah, Kuala
c Perlis the night before the arrest, and on that night, the keys to P12 were left
on a table in the hall of the house; (iii) Ah Aun had driven P12 on the day
of the alleged offence and had access to its keys then; and (iv) both he and
Ah Aun had access to the boot of P12 during the material period before they
were stopped at the police road block. PW6 was separately charged in the
Magistrate’s Court for having on his person a small quantity of heroin during
d
the said car ride, and he had pleaded guilty to that charge.
Before the learned judge, the prosecution did not challenge PW6’s testimony
aforesaid. It was also evident that, notwithstanding that PW6 had asserted that
Ah Aun was not a fictitious figure, no step was taken by the police to locate
e Ah Aun or the owner or occupier of house No. 13, Jalan Indah. The
prosecution, nonetheless, sought to criminally link the accused to the drug
exhibits by adducing evidence that the Thai market value of the offensive drugs
amounted to about RM2,500, and that the accused, prior to his arrest, had
withdrawn RM2,500 from an automatic teller machine for the purpose of
f purchasing the drugs in Thailand.
The defence argued that no prima facie case of trafficking or possession of
the offensive drugs had been made out against the accused, and the court,
therefore, ought to acquit and discharge the accused without calling for his
defence. And, as the Court of Appeal in Lt Kol Yusof Abdul Rahman v. Kol
g Anuar Md Amin had ruled that the degree of proof required to establish a
prima facie case was proof beyond reasonable doubt, an acquittal was all the
more justified, upon the facts of the case. The preliminary issues that arose
were: (i) whether the prosecution, at the end of its case here, had made out a
prima facie case of trafficking or possession of the drug exhibits against the
h accused; (ii) whether ‘prima facie’ and ‘beyond reasonable doubt’ could be
of one and the same import, and in any case whether ‘maximum evaluation’
could be said to be coterminous or synonymous with ‘beyond reasonable
doubt’; (iii) whether, notwithstanding the prima facie standard of proof required
to be established at the end of the prosecution case, some ingredients of the
i charge, such as the precise nature and quantity of the drug exhibits, need to
be proved beyond reasonable doubt.
[1998] 4 CLJ PP v. Ong Cheng Heong 211

Held: a

[1] The terms ‘prima facie’ and ‘beyond reasonable doubt’ have been
accorded statutory recognition by Act A979, particularly by ss. 180 and
182A thereof. By these sections, Parliament has made clear that the two
expressions ought to be distinguished from each other. It follows that,
b
to equiparate ‘prima facie’ with ‘beyond reasonable doubt’ as being
equipollent in degree or standard of proof, especially now, is to fly in
the face of the clear will of Parliament as expressed in the Amendment
Act.
[2] The rationale in Lt Kol Yusof drew its inspiration largely from the dicta c
of Buhagiar J in Saminathan & Ors v. Public Prosecutor as much as it
was guided by the definition of ‘prima facie’ in Black’s Law Dictionary
and Mozley and Whiteley’s Law Dictionary. But Buhagiar J in
Saminathan & Ors had only dealt with the phrases ‘reasonable doubt’
and ‘beyond reasonable doubt’, and not with ‘prima facie’. The assertion d
by the two law dictionaries inter alia that “a prima facie case can be
overthrown only by rebutting evidence” can no longer hold water in view
of the deliberate deletion of the words “which if unrebutted would
warrant his conviction” from the old s. 180 of the Criminal Procedure
Code (‘the Code’). Consequently, the Court of Appeal in Lt Kol Yusof
e
could not be right when it ruled that the degree of proof required to
establish a prima facie case is proof beyond reasonable doubt. Be that
as it may, Lt Kol Yusof’s ruling in this respect may not be followed as
the decision predated the amendments in Act A979 and its dicta on what
constitutes ‘prima facie’ was only obiter.
f
[3] In the light of the amendments in Act A979, a prima facie case is a
case which is sufficient to call for an answer, whilst prima facie
evidence is evidence which is sufficient to establish a fact in the absence
of any evidence to the contrary but is not conclusive. It follows that
there should be credible evidence on each and every essential ingredient g
of the offence.
[3a] It is true that courts will have to carry out a maximum evaluation of
the evidence when determining whether a prima facie case has been
made out under s. 180 of the Code. The terms ‘maximum evaluation’
and ‘beyond reasonable doubt’, however, are not coterminous or h
synonymous. Maximum evaluation simply means evaluation, on a prima
facie basis, of each and every essential ingredient of the charge as tested
in cross-examination. It connotes a quantitative rather than qualitative
evaluation, and focuses on the evidential burden in terms of evidence
led rather than on pursuasive burden in terms of qualitative degree of i
proof.
 Current Law Journal
212 1998 [1998] 4 CLJ

a [4] In this case, notwithstanding the words of the chemist that the exhibits
were also Indian Hemp, the accused’s argument in this respect must fail.
Section 2 of the Act clearly provides that “cannabis means any part of
any plant of the genus cannabis from which there is found to be present
resin irrespective of its quantity, and by whatever name the plant may
b be designated.”
[5] Certain ingredients of the charge, such as the identity and precise nature
of the drug exhibits, were not the kind of ingredients that the defence
could, when called, be in a position to refute or disprove, in order to
raise a reasonable doubt. That being so, at the ‘prima facie’ stage of
c the trial, such ingredients must be proved beyond reasonable doubt. The
position would remain so, notwithstanding that the words “which if
unrebutted would warrant his conviction” had been removed from s. 180
of the Code by Act A979.

d [5a] It follows that in this case, since only 179.40g of the plant material were
tested and confirmed conclusively – beyond reasonable doubt – to be
cannabis, the accused could only be called upon to enter on his defence,
if at all, upon an amended charge of possession and not trafficking, even
if a sufficient prima facie case had been made out on the other
ingredients of the charge.
e
[6] Section 90A(2) of the Evidence Act 1950 implies that a document which
derives its existence solely through the production of a computer may
only be tendered to the court by – or through a certificate signed by –
the person who is responsible for the management of that computer. In
f this case, PW3, when tendering the computer print-out on the particulars
and ownership of car No. WDV 3265, did not claim any responsibility
“for the conduct of the activities for which the relevant computer was
used.” Further, his declared designation as Supervisor at the Registration
Department, RIMV Perlis, did not necessarily put him in management
g of – or in the conduct of activities pertaining to – the operation of the
computer which produced P9A and P9B. The computer print-outs P9A
and P9B were therefore inadmissible.
[6a] The inadmissibility of P9A and P9B notwithstanding, the fact remains
that the evidence of PW6 that the said car belonged to the accused had
h not been challenged. The court must assume that PW6 was reliable
unless there were cogent reasons to hold otherwise. In the circumstances,
P12 must be taken as being owned by the accused.

i
[1998] 4 CLJ PP v. Ong Cheng Heong 213

[7] As motorcar No. WDV 3265 in this case was not “anything whatsoever a
containing” the compelling presumption did not arise and s. 37(d) of
the Act was inapplicable. This apart, s. 37(h) of the Act was also
inapplicable, as the boot of the car was not a “specially constructed
(compartment) for the purpose.”
b
[8] Without the presumption under s. 37(d) of the Act, the vital question
to determine was whether the prosecution had made out a prima facie
case of possession of the drug exhibits. Possession here means having
control of the drug exhibits, combined with evidential or criminal proof
of actual knowledge thereof. Also, for possession to be established, the
prosecution must prove beyond reasonable doubt exclusivity of custody c
and control of the drugs. In other words, it must be shown that it was
the accused, and the accused alone, who had possession of the drugs.
[9] The prosecution had failed to make out a prima facie case of exclusive
custody and/or control of the drug exhibits against the accused, indeed d
not even on a ‘minimal evaluation’ basis. In the first place, the
devastation wrought on the question of exclusivity of possession by the
unchallenged narrative of PW6 was starkly apparent. Secondly, the court
could not be unmindful that ownership of vehicle P12, with his mere
presence therein and possession of the keys thereto at the time of his
e
arrest, without more, could not be made a ground to call the accused
to enter on his defence. The control and management of a vehicle by a
person does not ipso facto put him in custody, control or management
over all items therein.
[10] The facts as adduced also showed that: (i) it could well be that the two f
plastic bags containing the offensive drugs had been placed in the boot
of P12 by some other person other than the accused; (ii) the accused’s
hands or fingernail clippings were not examined for traces of cannabis
or cannabinoids; (iii) the plastic wrappers (P5B and P6B) and the
newspapers (P5C, P6C(1-3), P6G) were also not dusted for finger prints; g
and (iv) no step was taken to trace Ah Aun although he was not a
fictitious character. The prosecution has also failed to establish, by way
of strong circumstantial evidence, a prima facie case of criminal
possessory linkage between the accused and the dangerous drugs, or his
criminal knowledge (mens rea) thereof.
h
[11] The ratio in Alcontara Ambross v. Public Prosecutor [1996]1 CLJ 705
must be carried to its logical conclusion, and an adverse presumption
under the general provision of s. 114 of the Evidence Act 1950 could
be drawn, to the effect that the non-listed items in the search list were
not found on the person of the accused, considering that a i
 Current Law Journal
214 1998 [1998] 4 CLJ

a contemporaneously prepared search list would essentially be complete

and exhaustive on the items relevant and essential to the case against
the accused. In any event, an adverse presumption must be drawn against
the prosecution under s. 114(g) of the Evidence Act 1950 for not calling
the bank officer when tendering the three bank withdrawal slips. These
b bank slips must be completely disregarded and it followed that the
evidence from the investigating officer concerning the RM2,500
withdrawal was without any basis and no weight should be accorded to
it.
[12] From the evidence taken cumulatively, it could not be concluded that
c the prosecution had made out a prima facie case against the accused
on trafficking, or even on possession of the drug exhibits. Upon PW6’s
unimpeached testimony, the car and the boot was, at the material time,
accessible to no less than three persons, namely the accused, Ah Aun
and himself. PW6’s evidence, considered in its entirety, had indeed left
d the accused clean and dry.
[Accused acquitted and discharged without his defence being called.]
Cases referred to:
Abdullah Zawawi Yusoff v. PP [1993] 4 CLJ 1 (refd)
e Alcontara Ambross Anthony v. PP [1996] 1 CLJ 705 (refd)
Arulpragasan Sandaraju v. PP [1996] 4 CLJ 597 (refd)
Chee Chiew Heong v. PP [1981] 1 CLJ 43 (refd)
Choo Teck Soon v. PP [1954] 20 MLJ 63 (refd)
Choo Yoke Choy v. PP [1992] 4 CLJ 1791 (foll)
Chow Kok Keong v. PR [1998] 2 CLJ 469 (refd)
f Dalip Bhagwan Singh v. PP [1997] 4 CLJ 645 (refd)
De Silva v. PP [1964] 30 MLJ 81 (refd)
Haw Tua Tau v. PP [1981] 1 CLJ 123 (refd)
Ho Seng Seng v. Rex [1951] MLJ 225 (cit)
Khoo Hi Chiang v. PP [1994] 2 CLJ 151 (refd)
Koon Chye Hin v. PP [1961] MLJ 105 (refd)
g
Kumaraguru & Ors v. PP [1994] 2 CLJ 53 (refd)
Lee Chee Meng v. PP [1992] 1 CLJ 345 (refd)
Lee Cheng (f) v. Seow Pang Kwang [1960] 26 MLJ 1 (refd)
Leow Nghee Lim v. Reg [1956] 22 MLJ 28 (refd)
Lin Lian Chen v. PP [1992] 1 CLJ 2086 (cit)
h Lt Kol Yusof Abdul Rahman v. Kol Anuar Md Amin [1997] 2 CLJ 752 (refd)
Mohd Said Samad v. PP [1998] 2 CLJ 161 (cit)
Muhammed Hassan v. PP [1998] 2 CLJ 170 (cit)
Munusamy v. PP [1987] 1 CLJ 250 (refd)
Muthusamy v. PP [1948] MLJ 57 (foll)
Ong Ah Chuan v. PP [1981] 1 MLJ 289 (refd)
i PP v. Alcontra Ambross Anthony [1993] 1 CLJ 206 (refd)
[1998] 4 CLJ PP v. Ong Cheng Heong 215

PP v. Aris Yunus [1989] 1 CLJ 239 (refd) a

PP v. Bacho Samsudin [1994] 1 CLJ 143 (refd)
PP v. Balasingham [1959] 25 MLJ 193 (foll)
PP v. Basri Salihin [1993] 1 CLJ 420 (refd)
PP v. Chin Yoke [1940] MLJ 47 (refd)
PP v. Ismail Atan [1992] 2 CLJ 1253 (refd)
PP v. Kang Ho Soh [1991] 3 CLJ 2914 (refd) b
PP v. Kau Joo Huat [1988] 1 CLJ 477 (refd)
PP v. Khoo Boo Hock & Anor [1992] 1 CLJ 971 (refd)
PP v. Lai Ah Bee [1974] 2 MLJ 74 (refd)
PP v. Lim Teong Seng & Ors [1946] MLJ 108 (refd)
PP v. Lin Lian Chen [1991] 1 MLJ 316 (cit)
c
PP v. Mansor Mohd Rashid & Anor [1997] 1 CLJ 233 (refd)
PP v. Mohd Fairus Omar [1997] 3 CLJ Supp 260 (refd)
PP v. Mohd Nasir Shaharuddin & Anor [1994] 2 MLJ 576 (refd)
PP v. Peter Yeoh & Anor [1993] 1 CLJ 78 (refd)
PP v. Saad Mat Takraw & Anor [1998] 3 CLJ 380 (cit)
PP v. Saimin & Ors [1971] 2 MLJ (refd) d
PP v. Saw Kok Leong [1993] 4 CLJ 83 (refd)
PP v. Tang Chew Weng [1969] 2 MLJ 17 (refd)
PP v. Tom It Cheong [1991] 1 CLJ 160 (refd)
PP v. Yap Boon Chang [1992] 2 CLJ 1257 (cit)
PP v. Yap Hai Ling [1990] 1 CLJ 983 (refd)
PP v. Zulkifli Omar [1998] 1 CLJ 1079 (refd) e
Pang Chee Meng v. PP [1992] 1 CLJ 39 (refd)
Pavone v. PP [1984] 1 MLJ 77 (refd)
Phoon Liat Sum v. PP [1950] 16 MLJ 205 (foll)
R v. Abbott [1955] 2 All ER 899 (refd)
R v. Harper [1989] 2 All ER 208 (refd)
Saminathan & Ors v. PP [1955] 21 MLJ 121 (refd) f
Soo Seng Huat v. PP [1968] 1 MLJ 80 (refd)
Syed Ali Syed Abd Hamid & Anor v. PP [1982] 1 MLJ 132 (cit)
Tai Chai Keh v. PP [1948-49] MLJ Supp 105 (refd)
Tan Boon Kean v. PP [1995] 4 CLJ 456 (refd)
Teh Geok Hock v. PP [1989] 2 CLJ 977 (refd) g
Yee Ya Mang v. PP [1972] 1 MLJ 120 (refd)

Legislation referred to:

Criminal Procedure Code, ss. 2, 180, 182A
Dangerous Drugs Act 1952, ss. 2, 37(d), (da), (h), 39B(1)(a)
Evidence Act 1950, ss. 90A(1), (2), (3), 114 h
Evidence Order 1950, s. 3
Penal Code, s. 34

Other sources referred to:

Black’s Law Dictionary, 4th edn
Law Dictionary, Mozley & Whiteley’s, 1993, 11th edn, p 208 i
Oxford Companion of Law, p 987
 Current Law Journal
216 1998 [1998] 4 CLJ

a For the accused - Jagdeep Singh Deo; M/s Karpal Singh & Co
For the prosecution - Abdul Razak Musa (Ms Quah with him)

Reported by WA Sharif
JUDGMENT
b
Vincent Ng J:
Before this court the abovenamed accused was charged, to wit:
Bahawa kamu pada 16/9/97 jam lebih kurang 1.50 petang di Sekatan Jalanraya
c di hadapan Balai Polis Simpang Empat, di dalam Daerah Kangar, di dalam
Negeri Perlis didapati dibawah kawalan kamu mengedar dadah iaitu ganja
seberat 2,870 gram yang mana menyalahi peraturan di bawah Seksyen 39B(1)(a)
Akta Dadah Berbahaya, 1952 (Pindaan 1983). Oleh yang demikian kamu telah
melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 39B(2) akta
yang sama.
d
The facts of prosecution’s case was elicited principally from Insp. Su That
a/l Frat Kong (PW5) during examination in chief. He gave the following
account of what happened.
On 16 September 1997 at about 12.15pm, acting on information, he led a
e police party comprising seven police personnel namely, Insp. Shaiful Azmi,
D/SM 50934 Mohd. Nor, D/K 97660 Ku Ahmad Zamri, D/Kpl Wan Zin Wan
Sulaiman (PW7), D/Kpl Baderi, D/Kpl Nicolas and Kpl. Musa to Balai Polis
Simpang Empat, to conduct a road block in front of Simpang Empat, Perlis,
Police Station. At about 1.50pm he stopped a Proton Wira car bearing
f registration No. WDV 3265 (P12) heading towards Alor Setar from the
direction of Kangar. He then instructed that the car be driven into the Balai
Polis Simpang Empat for inspection. There were two Chinese males in the
car. The accused was at the wheel and one named Foo Fang Meng (PW6)
was seated at the front passenger seat. On frisking the accused, he found
g
nothing incriminating on this person. But when Foo Fang Meng was frisked
by D/K Ku Ahmad Zamri, the latter recovered from his right front trousers
pocket, a transparent plastic packet, within which were two straw tubes
containing white powdery substance suspected to be heroin. The plastic packet
was in turn placed in an empty (20 sticks) Dunhill cigarette box. As instructed
by him the accused opened the boot of P12 by lifting the boot lever.
h
Upon inspection of the boot, PW5 found two plastic bags (P5A and P6A), a
luggage bag of clothes and an open cardboard box, also containing clothes.
P5A is a blue-black ‘Cardini’ plastic bag containing two packets of compact
dried plant material suspected to be cannabis (P5F and P5J) wrapped in two
i pieces of Siamese character newspapers (P5C and P5G). And, P6A is a green
[1998] 4 CLJ PP v. Ong Cheng Heong 217

‘Mun On Taylor’ plastic bag, wherein he found another two packets (P6F and a
P6J) wrapped in Siamese and Chinese character newspapers respectively
(P6C1-3 and P6G) containing compact dried plant material, also suspected to
be cannabis. In both P5A and P6A but on top of P5F, P5J, P6F and P6J were
men’s clothes. When the drug exhibits were opened, the accused, who was
beside him, appeared frightened. When the passenger compartment of P12 was b
checked by three members of the raiding party, they found nothing
incriminating. Besides P5A and P6A and their contents, PW5 also seized
certain personal belongings of the accused, including, one Motorola handphone
(P13), one N.E.C. pager (P13A), and a wallet (P13B) containing: cash of
RM103 (P13C); six credit and A.T.M cards (P13D1-P13D6); an identity card; c
a Public Bank Berhad cheque book (P13E); and a Maybank Savings Account
book (P13F). A search list (P14) was issued on the items recovered. When
P5F, P5J, P6F and P6J were weighed in the Simpang Empat, Police Station,
they gave a rough total weight of 2,870 grams. He also recovered one ignition
and two other keys (P15A to P15C) and handed them over to the investigating
d
officer C/Insp. Mohd. Ismail bin Ibrahim (PW8).
The testimony of D/Kpl Wan Zin Wan Sulaiman (PW7) supported in material
particulars the story of PW5, save that he added the following further
particulars. P5A and P6A was taken out from the central portion of the boot
of P12 when he made a search, under PW5’ s instructions. Upon opening P5A e
he found a yellow shirt and a pair of green trousers (P5K and P5L
respectively). P5F and P5J were together wrapped in a transparent plastic piece
(P5B). P6A which was also recovered, contained a yellow ‘T’ shirt and a long
sleeve “Batik” shirt (P6K and P6L respectively), under which he found the
two other packets, P6F and P6J in a transparent plastic wrapper (P6B). f
There were six other witnesses who testified namely: L/Kpl Rosdi bin Ismail
(PW1 – the store keeper); L/Kpl Mohd Tajuddin bin Ariffin (PW2 – the
photographer); En. Sobri bin Husin (PW3 – from JPJ); En. Shaharudin Hassan
(PW4 – Government Chemist); En. Foo Fang Meng (PW6 – the front
passenger in P12 who was subsequently charged and convicted for possession g
of a small quantity of heroin on his person at the time of travelling in P12);
K/Insp. Mohd. Ismail bin Ibrahim (PW8 – the investigating officer). To avoid
repetition, I would propose to discuss in detail, only in the course of my
deliberation, portions of the evidence of some of the witnesses, that are
material to the issues raised. h

After eight (8) witnesses had testified in support of the prosecution’s case,
the learned deputy offered eight witnesses to the defence and closed his case.
The accused’s counsel Encik Jagdeep Singh Deo suggested that the offered
witnesses to be called, be named as soon as and only should the defence be
called. He then proceeded to make a lengthy submission of no-case-to-answer, i
 Current Law Journal
218 1998 [1998] 4 CLJ

a a substantial portion of which dealt with the nature of the ‘prima facie’
standard of proof that the court ought to apply at the close of the prosecution
case – post-amendment to s. 180 of the Criminal Procedure Code.
Though, based on the date (16 September 1997) of the alleged offence in the
current charge, the prosecution and the defence were on common ground on
b
the standard of proof to be applied at the close of the prosecution case, yet,
because learned counsel for the accused, Encik Jagdeep Singh Deo had made
a ponderous and vigorous submission on the proper construction to apply to
the term ‘prima facie’ it behoves this court to deal with this issue at length
and with sufficient deliberation. The agreed applicable standard is the prima
c facie standard of proof imposed by the recent Criminal Procedure Code
(Amendment) Act No. A979 of 1997 (Act A979). As Parliament has not spelt
out the meaning of ‘prima facie’ it is left to the courts to do so.
On the first day of his submission on the issue of what constitutes a ‘prima
d facie’ case, counsel cited a Court of Appeal decision in Lt Kol. Yusof bin
Abdul Rahman v. Kol. Anuar bin Md. Amin [1997] 1 MLJ 562 (Lt. Kol. Yusof)
where it was held (see Held (3) at p. 563) that:
The degree of proof required to establish a prima facie case is proof beyond
all reasonable doubt.
e
And, this was precisely the words learned counsel adopted in his startling
submission. He further submitted that pursuant to the ratio in the Federal Court
decision in Dalip Bhagwan Singh v. PP [1997] 4 CLJ 645 (pertaining to the
operation of stare decisis), Lt. Kol. Yusof is an authority binding upon this
court and must be followed, as the latest authority of superior jurisdiction on
f
record. Apparently, it is an authority currently followed by a number of courts.
The above quoted headnote under Held (3) was quite correctly gleaned from
the following dicta of the Court of Appeal in Lt. Kol. Yusof expressed in this
way (at p. 578):
g
The degree of proof required to establish a prima facie case is easiest
demonstrated by asking ourselves what the court should do after the defence
is called, if the accused elects to remain silent, calls no evidence, and cannot
come up with any good reason why the earlier conclusion was wrong, eg, by
bringing new authorities which take a different view of the law or pointing
h out some inherent weaknesses in the prosecution case he may have overlooked
earlier. Thus unqualified, and unrebutted the court has to convict on the very
same material. Nobody would dare suggest as a matter of prudence that the
degree of proof required at this stage is not proof beyond all reasonable
doubt. (Emphasis added)

i
[1998] 4 CLJ PP v. Ong Cheng Heong 219

It was a decision made prior to the Amendment Act A979, though the a
judgment also revealed that: “Encik Karpal Singh said that Parliament was in
the process of restoring the effect of Haw Tua Tau by amending the Criminal
Procedure Code (FMS Cap 6) (‘the Code’) and handed us copies of the Bill
which he said was about to be gazetted.”
b
For this reason, it was submitted that this court should attach authoritative
weight or accord compelling pursuasive effect to the rationale in Lt. Kol. Yusof,
though that decision was made before the Amendment Act A979 was gazetted.
So, it was ingeniously put forward to this court that the issue was not whether
to apply the ‘prima facie’ test or ‘beyond reasonable doubt’ test, but whether c
‘prima facie’ ought to be construed as ‘beyond reasonable doubt’. Irrespective
of the manner in which the issue was framed or couched by counsel, I cannot
help noting that it was an attempt to hark back on the celebrated issue
concerning the standard or degree of proof, which has now been finally and
well settled by the amendment vide Act A979; it is unmistakably a revisit of d
the two cause celebre Khoo Hi Chiang v. PP [1994] 1 MLJ 265 (Khoo Hi
Chiang) and Arulpragasan a/l Sandaraju v. PP [1997] 1 MLJ 1 (Arulpragasan)
which overturned the ratio in Haw Tua Tau v. PP [1981] 2 MLJ 49 (Haw
Tua Tau).
There was also this celebrated Federal Court decision in Tan Boon Kean v. e
PP [1995] 3 MLJ 514 (Tan Boon Kean) – notably, not mentioned in the Lt.
Kol. Yusof judgment – which restored the effect of Haw Tua Tau. Khoo Hi
Chiang and Arulpragasan (by a majority decision) held that the ‘case’ required
to be made out by the prosecution under s. 180 is a ‘beyond reasonable doubt
case’, whereas the ratio decidendi in Hua Tua Tau and Tan Boon Kean f
postulated the requirement of only a ‘prima facie case’ at the close of the
prosecution case. Undeniably, creditable, strenuous and erudite efforts have
been made by both Edgar Joseph Jr (FCJ) and Mohamed Azmi (FCJ) in Khoo
Hi Chiang, Arulpragasan and Tan Boon Kean to expound comprehensively –
with no stone unturned, so to say – their contrary views in ‘the great standard- g
of-proof devide’; which became an issue of tedious, tortured and tortuous
debate in legal circles. And now, Parliament in its ascribed eternal wisdom
has opted for the realistic and practical construction of what constitutes a ‘case
made out’, by the amendment in Act A979, to restore the effect of Haw Tua
Tau and use of the ‘prima facie’ standard of proof at the close of case for
h
the prosecution. This amendment, in my view, would also entail legislative
reaffirmation of part of the dictum – as underscored hereunder – in Pavone
v. PP [1984] 1 MLJ 77 (not discussed in Khoo Hi Chiang) where Edgar
Joseph Jr J (as he then was) enjoined the courts to adopt the following –
eminently sensible – approach:
i
 Current Law Journal
220 1998 [1998] 4 CLJ

a Now, the sole question at the close of the case for the prosecution is whether
or not a prima facie case has been made out, that is to say, whether there is
some evidence (not inherently incredible) which, if believed, establishes the
essential elements of the offence charged. If there is such evidence, then the
defence must be called but care must be taken to leave suspended the question
of the veracity and accuracy of recollection of witnesses until after the close
b of the case for the defence. This applies even where, as here, the defence elects
to remain silent and calls no evidence. Consequently, in a proper case, there
is nothing illegal in a Magistrate or a President, or a Judge sitting alone or
with Assessors, calling for the defence upon prima facie evidence being
adduced and then proceeding to acquit and discharge even when the accused
elects to remain silent and to call no evidence if not satisfied that the charge
c
has been established by the prosecution beyond all reasonable doubt. (Emphasis
added)

Hence, it would be unnecessary and otiose for me to add or say more in

support of either side of the great devide – without seeming to rehash – besides
d what I have already said in Kumaraguru & Ors v. PP [1994] 1 MLJ 256
(Kumaraguru) where I had opined (at p. 263-H):
The close of the prosecution’s case and the close of the defence’s case
necessarily involve two very different stages of the trial and, upon the principles
enunciated in Haw Tua Tau – approved and applied in the Federal Court
e decision of A Ragunathan v. PP ([1982] 1 MLJ 139) – also necessarily involve
two different standards of proof, neither of which could be similar or dispensed
with if the court has to suspend judgment at the close of the prosecution stage.
It is highly essential that this dichotomy in the two entirely different stages,
which in turn necessitates two distinctly different standards of proof should be
consciously maintained by the court at both the stages. Logically, the rationale
f employed in deciding to call the accused to enter upon his defence, which is
based on asking certain hypothetical questions, could not be the same rationale
for the conviction of the accused, in our system of justice which permits one
and only one standard of proof for conviction; and that is that each and every
essential element of the offence has to be proved beyond reasonable doubt.
g The point taken by counsel became an intellectual discourse between bench
and bar upon an issue that had confounded the courts until the amendment
by Act A979. Yet, the same issue – apparently dressed differently – now
revived before me, threaten to further keep the courts befuddled and bemused
ad infinitum. Could both ‘prima facie’ and ‘beyond reasonable doubt’ rationally
h be one and the same in import? Now, in comes along Lt. Kol. Yusof,
introduced by counsel, for curial inspection of its rationale.

i
[1998] 4 CLJ PP v. Ong Cheng Heong 221

So, on Lt. Kol. Yusof, I am minded to be frugal with words. The rationale a
for that decision drew its inspiration largely from the dicta of Buhagiar J in
Saminathan & Ors v. PP [1955] 21 MLJ 121, which was extensively quoted;
and was guided also by the definition of ‘prima facie’ in Black’s Law
Dictionary (4th Ed) and in Mozley and Whiteley’s Law Dictionary (11th Edn,
1993 – at p. 208), both of which state, (in virtually similar terms) that “A b
litigating party is said have a prima facie case when the evidence in his favour
is sufficiently strong for his opponent to be called on to answer it. A prima
facie case, then, is one which is established by sufficient evidence, and can
be overthrown only by rebutting evidence adduced by the other side.”
After careful perusal of the quoted dissertation in Saminathan and Ors, I c
cannot help but note that Buhagiar J had only dealt with and discussed the
construction of the phrases ‘reasonable doubt’ and ‘beyond reasonable doubt’
but not ‘prima facie’. Also to be noted in that judgment, is that, having
correctly expressed his views that, it “is a rule of prudence rather than law
that requires more stringent proof in criminal than in civil cases” (though, d
Amendment Act A979 has now elevated this ‘rule of prudence’ to a statutory
provision), and that, the “background for the rule of prudence that requires
more stringent proof in criminal than in civil cases is the presumption of
innocence which came to maturity about 1865”, it is, in my opinion, rather
incongruous and inconsistent for Buhagiar J to go on to hold that the definition e
of ‘proved’ in s. 3 of the Evidence Ord 1950 “applies to civil and to criminal
cases and to prosecution and defence” (ie with the same probative effect) –
the year 1820 decision in R v. Burdett, cited therein, notwithstanding.
Under the definition provision in s. 3: “a fact is said to be ‘proved’ when,
after considering the matters before it, the court either believes it to exist or f
considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists.”
In this regard it is pertinent to bear in mind that though our system of criminal
jurisprudence operates under the principle of presumption of innocence, such
presumptions have no application, and are totally alien to civil law. Also to g
be borne in mind is that, for a conviction of an accused, the essential
ingredients of the offence would not only have to be ‘proved’ but, essentially,
‘proved beyond reasonable doubt’ – this, it must surely be, by ‘a rule of
prudence’ requiring a ‘more stringent proof’. Thus, there is clearly a distinct
dichotomy of the pursuasive burden or standard of proof applicable in criminal h
cases on the one hand and civil cases (save in cases of fraud and forgery) on
the other; the same standard of proof cannot apply.
Concerning the very similar definition of ‘prima facie’ in Black’s and Mozley
and Whiteley’s dictionaries, it is highly pertinent now to examine the precise
nature of the amendments in Act A979, and their implications. The old s. 180 i
of the Code stated:
 Current Law Journal
222 1998 [1998] 4 CLJ

a When the case for the prosecution is concluded the Court, if it finds that no
case against the accused has been made out which if unrebutted would
warrant his conviction shall record an order of acquittal, or, if it does not so
find, shall call on the accused to enter on his defence. (Emphasis added)

The new s. 180 in Act A979 reads:

b
(i) When the case for the prosecution is concluded, the Court shall consider
whether the prosecution has made out a prima facie case against the
accused.

(ii) If the Court finds that the prosecution has not made out a prima facie
c case against the accused, the Court shall record an order of acquittal.

(iii) If the Court finds that a prima facie case has been made out against
the accused on the offence charged the Court shall call upon the accused
to enter on his defence. (Emphasis added)

Thus, the deliberate deletion of the words ‘which if unrebutted would warrant
d
his conviction’ from the old s. 180 of the Code is significant. By this deletion,
surely, the second limb of the definition of ‘prima facie’ in the two law
dictionaries – which goes on to suggest that such prima facie case can be
overthrown only by rebutting evidence – could no longer be applicable now.
And further, to make its intention crystal clear the Legislature added a new
e provision s. 182A which provides:
(i) At the conclusion of the trial, the Court shall consider all the evidence
adduced before it and shall decide whether the prosecution has proved its case
beyond reasonable doubt. (ii) If the Court finds that the prosecution has
proved its case beyond reasonable doubt, the Court shall find the accused
f
guilty and he may be convicted thereon. (iii) If the Court finds that the
prosecution has not proved its case beyond reasonable doubt, the Court shall
record an order of acquittal. (Emphasis added).

Notably, from the aforesaid fresh provisions, the two time honoured phrases
g
‘made out a prima facie case’ and ‘proved its case beyond reasonable doubt’
were thrice repeated in each of the two ss. 180 and 182A of the Code
respectively, and pertaining to two different stages of the trial. Hence, at long
last the expressions ‘prima facie’ and ‘beyond reasonable doubt’ have gained
statutory recognition – such legal cliches or ‘rule of prudence’ have now been
elevated to a statutory provision. And, most importantly, the legislative intent
h
of Parliament has also now been made manifest in no uncertain – nay, crystal
clear – terms, to the effect that the two expressions ought to be distinguished
one from the other. This construction could perhaps more appropriately be
bolstered by an apt quotation from the judgment of Thomson CJ in Lee Cheng
(f) v. Seow Pang Kwang [1960] 26 MLJ 1, who had this to say (at p. 3):
i
[1998] 4 CLJ PP v. Ong Cheng Heong 223

It is axiomatic that when different words are used in a statute they refer to a
different things and this is particularly so where the different words are, as
here, used repeatedly.

This approach is consistent with the approach taken by the courts in several
other Commonwealth countries. In Malaysia, particularly since the decision of
the Privy Council in the case of Haw Tua Tau, this has also been the approach b
taken by the Supreme Court and the Federal Court (except in the case of Khoo
Hi Chiang in 1993) prior to Arulpragasan’s case.
In PP v. Zulkifli b. Omar ([1998] 1 CLJ 1079 and Judgment Today 4/98), I
had expressed the view that “the duty of the court is to reflect the concern c
of Parliament and also, which is sometimes forgotten, to reflect the concern
of the public about these matters”. The corollary to that being: it is also
incumbent on the courts to give expression and implement the manifest
intention of the Legislature expressed in crystal clear terms (as on this issue)
to the effect that there must necessarily be a distinction between the words
d
‘prima facie’ on the one hand and ‘beyond reasonable doubt’ on the other, in
criminal prosecutions. To equiparate ‘prima facie’ with ‘beyond reasonable
doubt’ as being equipollent in degree or standard of proof, especially now,
would be to fly in the face of the clear will of Parliament as expressed in
Amendment Act no. A979; and with its gazetting, the courts should not
continue to apply the beyond-reasonable-doubt test under the guise of or e
couched as a ‘prima facie’ standard.
Furthermore, after a reflective study of Lt. Kol. Yusof and mulling over dicta
in that judgment, with the greatest respect, I found myself unable to agree
with its rationale for deciding that the degree of proof required to establish a f
prima facie case is proof beyond all reasonable doubt. Additionally, besides
the consideration that the decision in Lt. Kol. Yusof predates the amendments
in Act A979, I also find that it is not an authoritative judicial precedent which
is binding and must be followed under the principle of stare decisis, as the
dicta therein on what constitutes ‘prima facie’ was an obiter dictum rather than
g
ratio decidendi. And, it is material to note that though the ‘prima facie’ issue
was raised, discussed and deliberated by the Court of Appeal in Lt. Kol. Yusof
the views expressed therein in no way – not an iota – affected the outcome
of the appeal, as was revealed by the following passage in that judgment (at
p. 579): “We entirely agree with the view of the learned High Court judge
that had the court martial applied the Khoo Hi Chiang test it would have still h
called for the defence”, and further down (at p. 580): “We agree with the
learned judge in the court below that the failure to resort to r. 101(2) was
sufficient ground for the refusal to exercise any discretion for prerogative relief
in the accused’s favour.”
i
 Current Law Journal
224 1998 [1998] 4 CLJ

a For all the above reasons, I rejected counsel’s initial submission that the degree
of proof required to establish a prima facie case is proof beyond all reasonable
doubt. Then, on the following day, counsel changed tack and advanced a point,
which I must say, was as fresh as the seasonal wintry winds of Perlis. He
submitted that to consider whether a prima facie case has been made out under
b s. 180 of the code, the court would have to carry out a maximum evaluation
of the evidence. This, I am inclined to agree as I find a common unifying
thread or common denominator that runs through the three celebrated cases,
Khoo Hi Chiang, Tan Boon Kean and the majority and minority judgments
in Arulpragasan, being that: the determination whether a prima facie case has
c been made out would essentially involve a maximum evaluation of the
evidence led by the prosecution. Unfortunately, the expression ‘maximum
evaluation’ was not specifically defined in any of the cases. This is how it
was put by Azmi FCJ in Tan Boon Kean (at p. 534):
we are, therefore, of the opinion that the court below is only bound by the
d ratio of Khoo Hi Chiang that at the close of the case for the prosecution, the
duty of the court is to carry out a maximum evaluation of the evidence
which, according to PP v. Chin Yoke [1940] MLJ 47 and followed in
Munusamy v. PP [1987] 1 MLJ 492 at pp. 497-498, necessarily means that
the court must consider the whole evidence of the prosecution as tested in the
cross-examination, on the essential ingredients of the charge. (Emphasis added)
e
Whereas, the crucial view of the Supreme Court in Khoo Hi Chiang was
summarised by Edgar Joseph Jr SCJ (at p. 290) as follows:
Consequently, the duty of the court, at the close of the case for the prosecution,
is to undertake, not a minimal evaluation of the evidence tendered by the
f prosecution in order to determine whether or not the prosecution evidence is
inherently incredible – the Haw Tua Tau test – but a maximum evaluation
of such evidence, to determine whether or not the prosecution has established
the charge against the accused beyond all reasonable doubt. (Emphasis added)

Thus, upon careful study of the judgments, I gather that, in essence, the only
g part where the opposing views in the ‘great standard-of-proof devide’ seriously
differ is on the question whether to equiparate maximum evaluation with
beyond all reasonable doubt – as if the two phrases are coterminous or
synonymous. It cannot in my view be coterminous. Thus, to me, maximum
evaluation simply means evaluation, on a prima facie basis, of each and every
h essential ingredient of the charge as tested in cross-examination. In other
words, maximum evaluation connotes quantitative rather than qualitative
evaluation of the evidence; with focus more on the evidential burden in terms
of evidence led, rather than the pursuasive burden in terms of qualitative degree
of proof.
i
[1998] 4 CLJ PP v. Ong Cheng Heong 225

What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face a
of it or at first glance. To me, in the light of the Amendment Act A979,
perhaps the most appropriate definition of ‘a prima facie case’ could be found
in the Oxford Companion of Law (p. 987), which has it as: “A case which is
sufficient to call for an answer. While prima facie evidence is evidence which
is sufficient to establish a fact in the absence of any evidence to the contrary, b
but is not conclusive”. (Emphasis added). It would follow that there should
be credible evidence on each and every essential ingredient of the offence.
Credible evidence is evidence which has been filtered and which has gone
through the process of evaluation. Any evidence which is not safe to be acted
upon, should be rejected. c
Reverting to the current case it is necessary for this court to consider whether,
from the evidence led on all the essential elements of the charge as tested in
cross-examination, a prima facie case has been made out, being a case which,
though not conclusive, is sufficient to call for an answer. Both the prosecution
and the defence rested on the common ground that: (a) the case against the d
accused is wholly based on circumstantial evidence, because when PW5 frisked
the accused, he found nothing incriminating on this person; (b) as a motor
car (vehicle bearing registration no. WDV 3265 in the instant case) is not
‘anything whatsoever containing’ the compelling presumption does not arise
and s. 37(d) is inapplicable (see Syed Ali bin Syed Abd. Hamid & Anor v. e
PP [1982] 1 MLJ 132 and Lin Lian Chen v. PP [1992] 2 MLJ 561); (c) s.
37(h) is also inapplicable, as the boot of the said car is not a ‘specially
constructed (compartment) for the purpose’; (d) hence, before considering
whether s. 37(da) could be invoked, possession has to be proved by way of
evidential or factual finding of possession, through having custody and control f
or management coupled with proof of actual knowledge or circumstances
clearly pointing to knowledge of the dangerous drugs (see also Muhammed
bin Hassan v. PP [1998] 2 MLJ 273, Mohd. Said bin Samad v. PP [1998] 2
MLJ 294, and PP v. Saad Mat Takraw & Anor ([1998] 3 CLJ 380 and
Judgment Today 9/98).
g
Let us now, within the confines of the four above common denominators,
examine the evidence led by the prosecution, through issues raised by counsel
in his no-case-to-answer submission, whether, a prima facie case, such as I
have defined above, has been made out.
h
Chemist Evidence
The issue taken on this score was two-fold, namely: if the drug exhibits could
also be Indian Hemp the current charge is unsustainable; and the failure of
the prosecution to conclusively show that at least 200 grams of the plant
material was cannabis. PW4 in the course of his testimony had readily agreed i
 Current Law Journal
226 1998 [1998] 4 CLJ

a when cross-questioned that cannabis is synonymous with Indian Hemp and the
drug exhibits P5F, P5J, P6F and P6J could also be Indian Hemp. Thus, counsel
said, though he had taken the same issue earlier – about two months ago –
in Saad Mat Takraw, and this court had therein observed that the point was
‘a feeble challenge, uttered in virtual undertones with tongue in cheek’, he
b has perforce to again bring up this issue in the current case, but not with
‘tongue in cheek’, as PW4 had clearly confirmed that P5F, P5J, P6F and P6J
which he had analysed could also be called Indian Hemp. I am also impelled
to observe that this Indian Hemp issue could be likened to a flotsam that keeps
resurfacing in the wake of certain apparent historical freaks of legislation.
c Notwithstanding the above candid words of PW4 on the exhibits being also
Indian Hemp, I would nevertheless hold that the current attack by learned
counsel is untenable and again fails. The ready answer to this is found in (the
interpretation) s. 2 of the Act, which provides that: “Cannabis means any part
of any plant of the genus cannabis from which there is found to be present
d resin irrespective of its quantity, and by whatever name the plant may be
designated.” (Emphasis added). Most importantly, he did assert that samples
of the plant material he tested were conclusively cannabis as defined under s.
2 of the Act. The essence distilled from his evidence could be stated thus: a
plant material which contains the two principal active generic compound of
e cannabinoid namely, tetrahydrocannabinol and cannabinol is called cannabis
in Malaysia, Indian Hemp in India and Marijuana in United States of America.
It is precisely due to the presence of these two deleterious active chemical
compounds in the plant material of the genus cannabis that criminalises the
possession or trafficking thereof; also, precisely why the third and fourth tests
f would be crucial. Thus, if it is really a spade here, it does not matter one
nought whether it is also called a shovel in the United States of America.
For example, it is common knowledge that paracetamol (medication for pain
and fever) is the chemical generic for panadol, coxa 500, milidon, setromol,
setamol and uphamol.
g Concerning the need for the chemist to test at least 200 grams or more of
the plant material, through the taking of a total sample of 200 grams or more
of same, in order for the court to call the defence on a charge of trafficking,
reference is made to what I had earlier said in Saad Mat Takraw (supra) at
p. 401 to 403 and I do not propose to say more. The only question, yet to be
h asked is: whether at the ‘prima facie’ stage of the trial, this ingredient of the
charge, namely, the precise nature and quantity of the drug exhibits would
have to be proved beyond reasonable doubt.

i
[1998] 4 CLJ PP v. Ong Cheng Heong 227

In PP v. Peter Yeoh & Anor [1993] 1 CLJ 78, on the issue taken concerning a
the identity of the drug exhibits, I expressed the following views (at p. 82):
“It is useful to note that the second ground raised by the defence counsel is
not a rebuttable element of the ingredients of the charge as envisaged under
s. 180 of the Criminal Procedure Code. As such, I would be indulging in a
spurious exercise in semantics by calling for the defence due to the lesser b
burden placed on the prosecution at this stage, in order to apply the heavier
beyond-reasonable-doubt-test burden and acquit both the accused persons
should they decide to remain silent – nay a curious and circuitous manner of
calling a spade a spade.” Similarly, in PP v. Saw Kok Leong [1993] 4 CLJ
83, I opined (at p. 87): “However, where there are no markings or initials to c
give the offending items an identity of its own, the Court must examine with
special care, in order to be satisfied beyond doubt (even at the stage of close
of the prosecution case), that there is not even a single serious gap in the
chain of handling the offending item.” And, subsequently, in Kumaraguru &
Ors v. PP [1994] 1 MLJ 254 (at p. 264) I again had occasion to state: “Even
d
then, it is this court’s view that the expression ‘if unrebutted’ would seem to
confine the application of the lower ‘prima facie’ test at the close of the
prosecution’s case, to only the rebuttable (essential) elements of the charge.
Whereas, in respect of certain essential elements of the charge which are not
of the rebuttable type, eg the identity of the offending exhibits, the prosecution
would have to establish such irrebuttable elements upon a higher beyond e
reasonable doubt test in order for the defence to be called.”
In my considered view, the removal of the phrase “which if unrebutted would
warrant his conviction” by the Legislature in the Amendment Act A979, neither
diminish nor detract from the validity or rationale of my views in the above f
three cases, as certain ingredients of the charge eg, the identity and precise
nature of drug exhibits, are not the kind of ingredients that the defence could,
when called, be in any position to refute or disprove, in order to raise a
reasonable doubt: see also PP v. Lim Teong Seng & Ors [1946] MLJ 108;
and, Tan Boon Kean v. PP [1995] 3 MLJ 514 (at 528 para H to I).
g
In the case now before me, PW4 conceded that the total or gross weight of
the 32 random samples that he had taken from P5F, P5J, P6F and P6J was
179.40 grams out of the total 2,718 grams of the plant material. Consequently,
as only 179.40 grams was tested and confirmed conclusively – beyond
reasonable doubt – to be cannabis, I would hold that, even if a sufficient prima h
facie case has been made out on the other ingredients of the charge, the
accused could be called upon to enter on his defence, only upon an amended
charge of possession and not trafficking.

i
 Current Law Journal
228 1998 [1998] 4 CLJ

a Motor Car No. WDV 3265 (Exhibit P12)

It was also submitted that the prosecution has failed to comply with the
provisions of the Evidence Act 1950, in particular s. 90A(2) thereof, and
certificates (P9A and P9B) tendered by PW3 ought to be inadmissible as
evidence.
b
In this era of computers and information technology, even the Evidence Act
would have to be brought abreast with the period. On this, the words of Steyn
J in R v. Minors and R v. Harper [1989] 2 All ER 208 (at p; 210) is apropos.
He said:
c
The law of evidence must be adapted to the realities of contemporary business
practice. Mainframe computers, minicomputers and microcomputers play a
pervasive role in our society. Often the only record of a transaction, which
nobody can be expected to remember, will be in the memory of a computer.
The versatility, power and frequency of use of computers will increase. If
d computer output cannot relatively readily be used as evidence in criminal cases,
much crime (and notably offences involving dishonesty) will in practice be
immune from prosecution. On the other hand, computers are not infallible. They
do occasionally malfunction. Software systems often have ‘bugs’. Unauthorised
alteration of information store on a computer is possible. The phenomenon of
a ‘virus’ attacking computer systems is also well established. Realistically,
e therefore, computers must be regarded as imperfect devices.

And so, a new provision – Section 90A – was legislated into being. Section
90A(1) to (3) read as follows:
(1) In any criminal or civil proceeding a document produced by a computer,
f or a statement contained in such document, shall be admissible as evidence of
any fact stated therein if the document was produced by the computer in the
course of its ordinary use, whether or not the person tendering the same is
the maker of such document or statement.

(2) For the purposes of this section it may be proved that a document was
g produced by a computer in the course of its ordinary use by tendering to the
court a certificate signed by a person who either before or after the production
of the document by the computer is responsible for the management of the
operation of that computer, or for the conduct of the activities for which
that computer was used. (Emphasis added)

h (3) (a) It shall be sufficient, in a certificate given under subsection (2), for
a matter to be stated to the best of the knowledge and belief of the
person stating it.

(b) A certificate given under subsection (2) shall be admissible in

evidence as prima facie proof of all matters stated in it without proof
i of signature of the person who gave the certificate.
[1998] 4 CLJ PP v. Ong Cheng Heong 229

In my analysis, s. 90A(2) in essence, implies that a document which derives a

its existence solely through the production of a computer could only be
tendered to the court by – or through a certificate signed by – the person who
is responsible for the management of that computer. It stands to reason that,
if such certificate is tendered, the opposing party is entitled to cross-examine
its (the certificate) maker if so desired. The courts have to be mindful that b
the failure of a computer, or a software programme, may occasionally result
in total failure to supply the required information, or in the supply of
unintelligible or obviously wrong information.
When PW3 tendered the two computer print-out, P9A and P9B, he only
introduced himself as the supervisor of the registration department of vehicles c
in the R.I.M.V. Perlis (‘mengawal selia bahagian pendaftaran kenderaan’) and
he did not claim any responsibility ‘for the conduct of the activities for which
the relevant computer was used’. His declared designation does not necessarily
put him in management of – or in the conduct of activities pertaining to –
the operation of the computer which produced P9A and P9B; not to mention d
that even in his registration department there are a number of officers including
himself who may be holding varied and myriad functions unconnected with a
computer. I would therefore rule the computer print-out, P9A and P9B,
inadmissible. But this is not the end of the matter. Though the tendering of
the two said print-out comprise the major plank in the prosecution case, yet e
there is also unchallenged testimony from PW6 that the car P12 belonged to
the accused. The court must assume that the witness is reliable unless there
are cogent reasons to hold otherwise: See De Silva v. PP [1964] 30 MLJ 81;
and Koon Chye Hin v. Public Prosecutor [1961] MLJ 105. The point taken
by the defence therefore fails, and I find that the car P12 is owned by the f
accused.
Yet another flotsam from Saad Mat Takraw was refloated by the learned
deputy when he submitted that, as the definition of ‘trafficking’ in s. 2 of
the Act is very wide, this court could consider invoking that provision as an
alternative to s. 37(da): See Ong Ah Chuan v. PP [1981] 1 MLJ 289; and g
Teh Geok Hock v. PP [1989] 3 MLJ 162. Again, for the same reasons I had
set out in detail in Saad Mat Takraw (at p. 406 and 407), which I do not
think it necessary to repeat, I would reject this contention: see Chow Kok
Keong v. PR [1998] 2 AMR 1401.
h
I shall now turn to the very pith and kernel of the no-case-to-answer
submission. Without the presumption under 37(d), the vital question for this
court to determine (even before the question of trafficking) is: whether the
prosecution has made out a prima facie case, of possession of the drug exhibits
as understood in criminal law. And, possession here means having custody
and control, combined with evidential or criminal proof of actual knowledge, i
 Current Law Journal
230 1998 [1998] 4 CLJ

a or circumstances clearly and irresistably pointing to knowledge, of the drug

exhibits (see Lin Lian Chen (supra) – p. 567).
Possession – through having control and custody – in order to incriminate a
person, must be such that the possessor must know the nature of the thing
possessed: See PP v. Kau Joo Huat [1988] 2 MLJ 91; Choo Teck Soon v.
b
PP [1954] 20 MLJ 63; and PP v. Basri bin Salihin [1994] 2 MLJ 476. Having
exclusive custody and control implies and involves having knowledge both of
the drugs and the nature thereof: See Ho Seng Seng v. Rex [1951] MLJ 225;
PP v. Kang Ho Soh [1991] 3 CLJ 2914. And, for the purpose of criminal
liability, without exclusive custody and control of the drugs, the mere fact that
c the accused had knowledge thereof is insufficient to incriminate: See PP v.
Basri bin Salihin (supra); PP v. Mohd Nasir bin Shaharuddin & Anor [1994]
2 MLJ 576; Choo Yoke Choy v. PP [1992] 2 MLJ 632; PP v. Lai Ah Bee
[1974] 2 MLJ 74; Yee Ya Mang v. PP [1972] 1 MLJ 120; PP v. Khoo Boo
Hock & Anor [1992] 1 CLJ 971; PP v. Kau Joo Huat (supra); and PP v.
d Mohd Fairus bin Omar [1998] 5 MLJ 729.
There is a welter of authoritative precedents binding upon this court, which
held that for possession to be established, accessibility by others to the place
where the drugs are found, should be excluded by evidence led by the
prosecution: See PP v. Kang Ho Soh (supra) – where the accused had sole
e
custody and control of the car for being its sole occupant, ala PP v. Alcontra
a/l Ambross Anthony [1993] 1 CLJ 206; and, also PP v. Tang Chew Weng
[1969] 2 MLJ 17 – where there was “absence of any evidence of any one
nearby with access to the sleeping berth, a defence for the accused to put up
and not to be anticipated, least of all by the trial president”. The onus is “not
f on the defence to proof possibility of access by others but on the prosecution
to exclude such possibility,” and the “question must be answered in favour
of the accused if there are more than one ways in which the evidence adduced
by the prosecution might be viewed,” such as “implicating the appellant or
the wife or both of them or the informer or even Muhammad (the other man
g living in the house)” – Per Edgar Joseph Jr SCJ in Abdullah Zawawi bin Yusoff
v. PP [1993] 3 MLJ 1 (see also Tai Chai Keh v. PP [1948-49] MLJ Supp.
105). In other words, exclusivity of custody and control of the drugs ought
to be established by the prosecution. Thus, in Choo Yoke Choy v. PP [1992]
2 MLJ 632, the Supreme Court held that, “The prosecution therefore has to
h establish beyond reasonable doubt that the appellant alone had possession of
the drugs or that both he and his wife had joint possession of the drugs”:
See PP v. Basri bin Salihin (supra); PP v. Muhamad Nasir bin Shaharuddin
& Anor (supra); and also Pang Chee Meng v. PP [1992] 1 MLJ 137. The

i
[1998] 4 CLJ PP v. Ong Cheng Heong 231

prevailing law was further buttressed by Abdul Hamid Omar (LP) when he a
said (at p. 142), to wit: “In the light of the material contradictions and the
circumstances surrounding, we are not satisfied that the prosecution had proved
exclusive custody and control of the drugs found in the room.”
Incidentally – also on the question of exclusivity – it has been decided in Lee
b
Chee Meng v. PP [1992] 1 MLJ 322 that to be an ‘occupier’ of the room or
premises within the meaning of s. 37, the accused must have exclusive
occupation or exclusive use and care or management of the room or premises
where the offending exhibit is found (see also PP v. Aris bin Yunus [1989] 1
CLJ 239; and, R v. Abbott [1955] 2 All ER 899 – where two people were
jointly indicted and evidence did not point to one rather than the other, and c
there was no evidence that they were acting in concert). And, occupation is
presumed on prove of care or management and control – but it has to be
exclusive occupation: see PP v. Yap Hai Ling [1990] 1 CLJ 983. Indeed,
perhaps upon the ‘futility rationale’ (discussed below), exclusivity of possession
is an essential ingredient to be established by the prosecution before defence d
can be called, even on a prima facie standard of proof, not only on a charge
of trafficking but also on one of possession. Hence, the following pre – Khoo
Hi Chiang (supra) cases illustrate the consistent line of approach taken by the
courts, where it has been held that without such exclusivity even a prima facie
case cannot be said to have been made out: see PP v. Yap Hai Ling [1990] e
1 CLJ 983; PP v. Tom It Cheong [1991] 1 CLJ 160; PP v. Bacho bin
Samsudin [1994] 1 CLJ 143; PP v. Ismail bin Atan [1992] 2 CLJ 1253; PP
v. Aris bin Yunus (supra).
Thus, it is trite law that evidence of custody, control and knowledge can be
rebutted by evidence appearing in the prosecution case: See Leow Nghee Lim f
v. Reg [1956] 22 MLJ 28; Soo Seng Huat v. PP [1968] 1 MLJ 80; and Chee
Chiew Heong v. PP [1981] 2 MLJ 287. And so, since PW6 was not merely
offered to the defence, but called by the prosecution to testify, his testimony
has now become an integral part of the recorded evidence, which the court
would have to examine carefully, as it would play a major if not crucial role g
in its deliberation whether to call for the defence. PW6’s testimony was
unchallenged by either side, and could greatly assist the court to determine
whether the accused had: (a) exclusive custody and control; and (b) knowledge
of the nature of the drugs exhibits.
h
PW6 said that both he and the accused left Johore for Perlis on the night of
14 September 1997, reached Perlis on the morning of 15 September 1997, and
went straight to the house of one named Ah Aun. The purpose of coming to
Perlis was to see Ah Aun. The last occasion he drove P12 was when they
were on the highway from Johore to Perlis. At Perlis they passed a night with
i
 Current Law Journal
232 1998 [1998] 4 CLJ

a Ah Aun in Ah Aun’s house. During their stay in Perlis, they did not go
anywhere, not even to Langkawi. He was very sure of this as he had slept
beside the accused in Ah Aun’s house. On the following morning, on
16 September 1997 the accused woke him up after he (the accused) had taken
a shower. Soon thereafter, at around 10am, he saw Ah Aun driving the
b accused’s car (P12) back and carrying home some food he had bought for
breakfast. After breakfast at Ah Aun’s house they stayed there until about 12
noon, when they left Perlis for Johore. The last day he held the car key to
P12 was on the night of 14 September 1997. The last time he saw the car
boot of P12 opened was on the morning of 15 September 1997 when he
c opened it to take out a shirt for a change of clothes. The keys to P12 (P15A-
C) were not kept by the accused when they are at Ah Aun’s house as he had
placed them on a table in the living room. And, he does not know to whom
the two plastic bags, P5A and P6A, belong or when they were placed in the
boot. He did not see the accused put anything into the car boot.
d On 16 September 1997, at about 1.50pm, when he was arrested, he was
travelling in car P12 as a front passenger, with the accused at the wheel. He
admitted that upon his arrest and being frisked by the police, they recovered
from his right, front trousers pocket, a plastic packet and two straw tubes of
heroin contained in a Dunhill cigarette packet (20 sticks size). As the result
e of which, he was charged in the Kangar Magistrate’s Court, for possession of
heroin. He pleaded guilty to the charge, and was sentenced to two weeks
imprisonment and a fine of RM2,000 – in default six months imprisonment.
He further asserted that he had never seen either of the two plastic bags (P5A
and P6A) or their contents, at any time before he was arrested.
f Hence, the devastation wrought on the question of exclusivity of possession,
by the narrative of PW6, was even then starkly apparent, as he had given
affirmative evidence to the effect that: (a) Ah Aun was not a fictitious
character and indeed the accused and PW6 stayed in his house; (b) Ah Aun
drove the car (P12) and he thereby had access to its keys on the morning of
g 16 September 1997 (the day of the alleged offence); (c) the key to P12 was
left on a table in the hall of Ah Aun’s house; (d) the boot of P12 was clearly
assessible to PW6 and Ah Aun during the material period before the accused
and PW6 was stopped at the police road block; (e) he did not see the accused
put anything into the car boot. And, most importantly, PW6’s adverse
h testimony was not challenged and neither was he impeached by the prosecution
though they would have had his ‘112 statement’. Where a prosecution witness
whose earlier statement is favourable to the prosecution gives evidence
favourable to the defence, he should be discredited in accordance with the
procedure laid down in detail in the judgment of Taylor J in Muthusamy v.
i Public Prosecutor [1948] MLJ 57. The evidence elicited from PW6 was highly
[1998] 4 CLJ PP v. Ong Cheng Heong 233

material and relevant to the defence. Even if he was an interested witness a

(there was no such suggestion by the prosecution), I would nevertheless repeat
the principle clearly enunciated in PP v. Balasingham [1959] 25 MLJ 193 by
Ismail Khan J, who said: “There is no legal presumption that an interested
witness should not be believed. He is entitled to credence until cogent reasons
for disbelief can be advanced in the light of evidence to the contrary and the b
surrounding circumstances”. This principle, I had occasion to affirm in similar
terms, in PP v. Yap Boon Chang [1992] 2 CLJ 1257.
From the nature of the evidence led, I have no difficulty to conclude that the
prosecution has failed to make out a prima facie case of exclusive custody
and/or control of the drug exhibits against the accused – indeed, not even on c
a ‘minimal evaluation’ basis, if I may add. This court cannot be unmindful
that ownership of vehicle P12, with his mere presence therein and possession
of the keys thereto at the time of his arrest, without more, cannot and must
not be made grounds to call the accused to enter on his defence (see also PP
v. Aris bin Yunus (supra)). d

The above conclusion notwithstanding, it further behoves me to also consider

whether the prosecution had succeeded in their endeavour to establish a prima
facie case of – what I would express as – criminal possessory linkage coupled
with and presence of criminal knowledge (mens rea) of the dangerous drugs,
e
by adducing strong circumstantial evidence, clearly pointing to such linkage
and knowledge. The prosecution had succeeded in establishing that, the
accused, at the time of his arrest: was driving car no. WDV 3265 (P12) with
PW6 as his front passenger; owned P12; had the ignition key to P12; and,
thereby also had access to the boot of P12. In this regard, the court has to
bear in mind that control and management of a vehicle by a person does not f
ipso facto put him in custody, control or management over all items in the
vehicle. I would propose to deal with the above issue under captions as
follows:
Demeanour Of The Accused g
PW5 said that the accused who was beside him appeared scared when the drug
exhibits were opened. However, this witness also said that immediately before
the boot was inspected, two straws of heroin contained in a Dunhill cigarette
packet was recovered D/K Ku Ahmad Zamri from the right-front-trouser pocket
of PW6. Thus, in my view the alleged appearance of the accused during the h
search of the boot, is equivocal in nature as his ‘scared look’ could be
attributable to his having seen the discovery by the police of the heroin on
the person of PW6. This piece of evidence even if true is therefore of little
consequence. I find my view here bolstered by compelling dicta of Edgar
Joseph Jr (SCJ) in Abdullah Zawawi bin Yusoff (supra), who, on a similar i
point, had this to say (at p. 9):
 Current Law Journal
234 1998 [1998] 4 CLJ

a “We now come to what does seem to us to be evidence of a potent kind against
the appellant, namely his conduct in taking to his heels upon Insp Mat Yusoff
announcing the discovery of the drugs in the box. This conduct of the appellant
was consistent with his having known of the presence of the drugs in the box
before their discovery, indicating thereby a sense of guilt. On the other hand,
it was conduct equally consistent with the appellant having been in a state of
b pure panic, bearing in mind that it was only after Insp Mat Yusoff announced
the discovery of the drugs that the appellant took to his heels. An innocent
man faced with the prospect of arrest on a capital charge might foolishly react
in that way.” See also Saad bin Mat Takraw & Anor (supra).

P5K And P5L Found In P5A

c
PW6 said that the yellow shirt (P5K) and a pair of green trousers (P5L) belong
to the accused while a long sleeve batik shirt (P6L) was his. He does not
know to whom the yellow ‘T’ shirt (P6K) belong. When he left P6L in the
boot of P12 on the morning of 15 September 1997 he did not place it in P6A
d (the plastic bag). He is unaware when the yellow shirt, the green trousers, the
yellow ‘T’ shirt and the long sleeve Batik shirt (exh. P5K, P5L, P6K and P6L
respectively) were placed in P5A and P6A (the two plastic bags). In
conjunction with this feature of PW6’s testimony, evidence was also led from
PW5 to the effect that four packets of the plant material suspected to be
e
cannabis (P5F, P5J, P6F and P6J) were found in two open plastic bags, one
bearing ‘Cardini’ (P5A) and the other, bearing ‘Mun On Taylor (P6A). And,
both P5A and P6A contain the pieces of clothing P5K, P5L, P6K and P6L.
The yellow shirt and the green pair of trousers (P5K and P5L) were placed
on top of and covering P5F and P5J, whilst the yellow ‘T’ shirt and long
sleeve batik shirt (P6K and P6L) covered P6F and P6J. To further dovetail
f
PW5’s evidence, the investigating officer PW7 said that P5K, P5L and P6K
fitted the body-size of the accused whereas P6L fitted PW6.
However, the potency of this aspect of the prosecution case was diluted to
nought by PW5’s acknowledgement that P5K, P6K and P6L were about the
g same size. And that, besides P5A and P6A, there were many other things in
the boot of the car, including a bag of clothes and an open cardboard box
also containing clothes and other items. The bag of clothes had a zip which
was not locked, and appeared in photo exh. P8E to be damaged and not in
working condition. It was for this reason that, he readily agreed that it was
h possible for someone to place P5A and P6A containing the said packets of
plant material and then cover them with whatever clothing found in the boot
of the car. And, also, it could well be that P5A and P6A with their contents
had been placed in the boot of P12 by some other person besides the accused.

i
[1998] 4 CLJ PP v. Ong Cheng Heong 235

Clearly, I could think of at least three possible inferences that could be drawn a
from the above evidence, namely: the accused may have placed P5A and P6A
with the drugs and covered them with his own clothing P5K, P5L and P6K,
and PW6’s long sleeve batik shirt (P6L); or, similarly PW6 may have done
just that, and used his long sleeve batik shirt (P6L) and the accused’s clothing,
P5K, P5L and P6L to cover the offending exhibits; or, the much featured b
character Ah Aun may have planted P5A and P6A in the boot of the car (to
which he clearly had access) and covered their contents with whatever clothing
readily available from the said zip-bag of clothes and the said open cardboard
box depicted in photo P8E. I note with interest that circumstances somewhat
similar to our instant case also obtained in the case of Choo Teck Soon v. c
PP [1954] 20 MLJ 63 where Wilson J had occasion to make the following
remark: “There is no evidence that the tin was in the car at the time the car
was parked and it is obvious that any person who so desired could have
planted the tin of chandu there during the night. In these circumstances the
appeal must succeed and the conviction and sentence be quashed.”
d
It is trite law that where circumstantial evidence points to two or more
inferences, it should be resolved by ascribing the more favourable inference
to the accused: See Lin Lian Chen (supra); and, Phoon Liat Sum v. PP [1950]
16 MLJ 205 – “some of the evidence on which they were based was capable
of a construction equally in favour of the accused” – Per Hill J. At any rate, e
the above evidence against the accused could at the most go to make up only
one of the myriad strands in a hangman’s rope of circumstantial evidence,
since such evidence is essentially, of juxtaposition of his clothes with the
offending exhibits. As such, due to the above frailities of the prosecution
evidence, if it is yet intended to show a physical linkage between the accused f
and the offending exhibits, through evidence of his having handled them, it
is indeed unfortunate that (as confirmed by the investigating officer) the
accused’s hands or fingernail clippings were not examined for traces of
cannabis or cannabinoids; and neither the transparent plastic wrappers P5B,
P6B nor the newspapers P5C, P6C(1-3) and P6G were dusted for fingerprints.
g
Indeed, according to the government chemist (PW4), the said two plastic
wrappers and even some portions of the said newspapers had smooth and flat
surfaces, and the usual practice is for finger prints to be lifted from flat or
smooth surfaces.
Ah Aun is not a fictitious character. The accused and PW6 had to pass the h
night and put up at some abode somewhere, when they arrived in Perlis from
Johore, especially as there was not a scrap of evidence that either or both of
them had stayed in a hotel or went across the Malaysian-Thai border. When
cross-questioned, PW8 said that the premises address where both of them had
stayed for the night, was given as No. 13 Jalan Indah, Taman Indera Indah, i
 Current Law Journal
236 1998 [1998] 4 CLJ

a Kuala Perlis. Thus, as it was a permanent premises in Perlis with a specific

and fixed address, I fail to understand why no steps were taken to trace the
identity of the owner of premises No. 13; who could very well turn out to be
the character ‘Ah Aun’ or – if not so – lead the police to ‘Ah Aun’. It is a
truism that all legitimate permanent premises with fixed addresses must
b necessarily have registered owners. The investigating officer admitted that he
did not take any steps to locate the house owner or occupier, though he
claimed to have visited the address on 19 September 1997, and twice further,
to look for Ah Aun. Hence, for my decision on this point, I need do no more
than to accept, with respect, and repeat the views of the Supreme Court in
c Pang Chee Meng (supra) expressed (at p. 142) in the following terms: “If
some of these claimed witnesses cannot be traced, it was a combination of
unhappy circumstances in this case. The accused cannot be penalised for lack
of ingenuity in police investigations depriving him of the time-honoured benefit
or doubt.”
d The RM2,500 Issue
Evidence was also introduced by the prosecution, which if accepted by this
court, may go to satisfy at least the lower prima facie degree of proof
applicable at this stage of the trial. The investigating officer (PW8) said that
from his investigations, and bearing in mind the fact that out of the six
e
wrapper pieces of newsprint papers (P5C, P5G, P6C(1-3) and P6G) five of
them were in Siamese and one in Chinese language, he came to the conclusion
that the offending exhibits were obtained from Thailand. And, he understands
that a kilo of cannabis there costs between RM800 to RM1,000. More potently,
he then went on to state that his investigations revealed that a sum of RM2,500
f had been withdrawn from the Automatic Teller Machine (A.T.M.) “on 15
September 1997”, and among the six cards seized from the accused was a
Maybank Visa (classic) card and a Maybank Master card. However, when
questioned by counsel he admitted that no international passport was recovered
from the accused or the car (P12); and contradicted himself on the source of
g the offending exhibits when he agreed that his investigations confirmed the
accused had not made any trip to Thailand.
Then, at the eleventh hour, after defence counsel had completed cross-
examination of the last witness (PW8), the learned deputy sought the court’s
leave to effect, what may be termed as ‘emergency repairs to defects in its
h
case’ – per Mohtar Abdullah J in PP v. Lin Lian Chen [1991] 1 MLJ 316 –
by tendering three further exhibits. This, I allowed, subject to right of the
defence to cross-examine on the fresh exhibits. PW8 said that he found three
bank-withdrawals slips from the accused’s wallet (P13B), to wit: two slips
indicating two withdrawals effected at Kuala Perlis through the Maybank
i
[1998] 4 CLJ PP v. Ong Cheng Heong 237

A.T.M. by a CR Card (‘dari CR Card’) on 15 September 1997 for an aggregate a

amount of RM2,000; and, one slip indicating a withdrawal effected at Masai,
Johore also through the Maybank A.T.M machine, by a Visa Card (‘dari Visa’)
on 13 September 1997 for RM500. The three bank-withdrawals slips were
admitted and marked as exhs P13G(1-3).
b
When cross-questioned he acknowledged that the exhs P13G(1-3) were not
listed in the search list (P14). He further acknowledged that P13G(1-3)
contained no name or account number or other particulars to associate or link
any of them (the three slips) to any of the said six cards, including the
Maybank Master Card and the Maybank Visa (Classic) Card. The court’s
inspection of P13G(1-3) confirmed that this was so. Also noted was that the c
two slips pertaining to the two alleged withdrawals from Kuala Perlis contained
the unexplained word ‘CR Card’ rather than ‘Visa Card’ or ‘Master Card’ (the
two Maybank card seized). A measure of guidance on the topic of search list
could be gleaned from a passage in the judgment of Edgar Joseph Jr FCJ in
Alcontara a/l Ambross Anthony v. PP [1996] 1 MLJ 209 which read (at p. d
the 220-G): “We must add that, in a situation such as this, where there was
an acute conflict of evidence on a material point, namely, the result of the
search of the person of the accused, and a search list contemporaneously
prepared by the police was presumably in existence, a copy thereof, ought, in
all fairness, to be tendered in evidence or its non-production accounted for, e
the sanction for not doing so being the presumption, that if produced, it would
have been unfavourable to the prosecution. (See s. 114(g) Evidence Act 1950).”
Thus, therein, it was held to be “an error on a most material point which was
directly relevant to the defence ..” when, in the grounds of judgment of the
High Court, mention was made of a certain cash item listed in a search list f
that was not tendered as an exhibit by the prosecution. Obviously and clearly,
the net effect of the adverse presumption drawn in that case would be that
the said cash item was not in fact recovered from the accused in the amount
as alleged by the prosecution witness.
Although, in the current case the search list was in fact tendered as exh. P14, g
yet it would follow by force of logic that since “there was an acute conflict
of evidence on a material point” – namely, whether in fact the three bank
slips were recovered from, and any withdrawal was effected by the accused
– the fact that none of the slips was listed in P14, would attract the adverse
presumption against the prosecution under the general provision of s. 114 of h
the Evidence Act 1950; and I so hold, albeit only pertaining to the bank slips.
The ratio in Alcontara (supra) must be carried to its logical conclusion, as
surely, it cannot be rational to hold that so long as a contemporaneously
prepared search list – however deficient in its itemisation – becomes a court
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 Current Law Journal
238 1998 [1998] 4 CLJ

a exhibit, all other items not in the list but allegedly recovered from the accused
could be tendered in evidence without attracting such adverse presumption,
that the non-listed items were not so found on the person of the accused. It
is entirely logical and reasonable for the court to presume that a
contemporaneously prepared search list would essentially be complete and
b exhaustive on the items relevant and essential to the case against the accused,
as it is a fact which is “likely to have happened, regard being had to the
common course of natural events, human conduct ...”; to hold otherwise would
be to negate the whole purpose of requiring a contemporaneous search list to
be prepared.
c Furthermore, even though the three bank slips were admitted, yet because of
the lack of any useful particulars that could be gleaned from the slips, it
became of vital importance that the three alleged withdrawals, from Kuala
Perlis and Masai, be proved by affirmative evidence from the relevant officer
of the bank which issued the said two Maybank Credit Cards. The evidence
d of withdrawals was of the potent kind and it is therefore necessary to enlighten
the court. Thus, it came as no surprise then, that learned counsel urged the
court to draw an adverse inference against the prosecution under s. 114(g) of
the Evidence Act 1950, for its failure to call the bank officer to render
evidence pertaining to the withdrawal transactions dated 13 and 15 September
e amounting to RM2,500; being also the reputed equivalent Thai-market value
of the offending exhibits.
The approach the court should take on the application of s. 114(g) has been
quite plainly summarised by Chong Siew Fai CJ (Sabah & Sarawak) in PR
v. Mansor bin Mohd. Rashid & Anor [1996] 3 MLJ 560. What he said was
f this (at p. 579):
Much had been canvassed before us respecting the drawing of adverse inference
under s. 114(g) of the Evidence Act 1950 from the non-calling of Cholar and
Amran. Whether or not such an inference should be drawn is not a matter of
an inflexible rule but depends upon the circumstances of each particular case.
g In determining this issue, the question to consider is whether the existence of
a fact or a state of things (ie, Cholar introducing PW9 and was present at the
meetings; Amran staying in room ‘K’) makes the existence of another fact or
state of things so likely that it may be presumed to exist. The answer must
naturally vary according to the circumstances, the nature of the fact required
h to be proved and its importance in the controversy, the usual and commonly
recognized mode of proving it, the nature, quality and cogency of the evidence
which had not been produced and its accessibility to the party concerned.
(Emphasis added).

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[1998] 4 CLJ PP v. Ong Cheng Heong 239

Applying the above guidelines in the instant case, I would have no hesitation a
to allow the defence to invoke s. 114(g) against the prosecution as:
(a) considering the dearth of probative information contained in the three slips,
it was of utmost importance that the officer from Maybank be called; (b) there
was hardly any problem in calling such officer and no reasons were advanced
for not calling him; and, (c) it is the usual and commonly recognised mode b
of establishing such proof against an accused. In criminal jurisprudence, the
court is ever mindful of the two abiding principles encapsulated in the
following adages: he who alleges the affirmative is enjoined to prove by
affirmative evidence and not by surmise or conjectures; and, when a man’s
life or liberty is at stake, the courts are cautioned to expect the best evidence. c
Consequently, this court must perforce draw the adverse presumption under
s. 114(g) against the prosecution for not calling the bank officer on exh.
P13G(1-3), and these three bank slips should be completely disregarded. As I
see it, the only useful purpose the three bank slips – considering the paucity
of incriminating particulars therein – could serve would be as a cue to prompt
d
the prosecutor to take the obvious steps necessary to drive home proof of that
aspect of the evidence essential to the unfolding of the narrative. It would
also follow that the piece of evidence from the investigating officer concerning
the RM2,500 withdrawal is without any evidential foundation or basis and no
weight at all should be accorded to it. It is trite law that evidence that merely
engender suspicion and surmise – however compelling – ought to be e
disregarded unless such evidence attains the requisite high level of criminal
proof.
In the event, after having studied thoroughly all the evidence led by the
prosecution including the testimony of PW6, which was unchallenged and of f
considerable import, and after giving careful thought to all the arguments put
forward by both sides, I do not see how, from the evidence taken cumulatively,
I could conclude that the prosecution has made out a prima facie case against
the accused on trafficking, or even on possession of the drug exhibits. In a
nutshell, it is unfortunate that the prosecution had themselves undermined their
g
case, which was crushed under the weight of adverse, unimpeached testimony
from their own witness (PW6), to the effect that the car and the boot was,
during the material period, clearly accessible to no less than three persons (the
accused, Ah Aun and himself). Indeed, his evidence, when considered in its
entirety, has the nett effect of leaving the accused clean and dry. PW6 was
an ex-convict, convicted by admission, for possession of heroin on his person h
while travelling on the day in question, as a front passenger in car no. WDV
3265 driven by the accused. Yet, nonetheless, he was not charged in the
current charge on the basis of common intention (under s. 34 of the Penal
Code) for reasons privy only to the prosecution. Whereas, the accused who
now stands in the dock before this court, is deemed to be clothed with the i
presumption of innocence until proven guilty of the charge.
 Current Law Journal
240 1998 [1998] 4 CLJ

a Bearing in mind the fundamental principle in criminal cases, that the abiding
burden rests upon the prosecution throughout until the conclusion of the trial,
to prove its case, it would be unjust, unsafe and wholly futile (this could be
termed the ‘futility rationale or approach’) to call upon the accused to enter
on this defence just to see whether he would in his evidence self-incriminate,
b when, after careful consideration of the evidence led by the prosecution on
the essential ingredients of the offence, acquittal of the accused upon a higher
degree of proof is virtually inevitable (as in the case at hand), even should
the accused elect to remain silent and calls no witness. Thus, quite correctly,
in PP v. Saimin & Ors [1971] 2 MLJ, Sharma J held that the magistrate’s
c reasoning for calling the accused to enter on his defence was defective when
he said, to wit: “I am making this ruling not because I am satisfied with the
case of the prosecution but because I want the accused to explain for himself.”
Conclusion

d The prosecution has not made out a prima facie case on either trafficking or
possession of the drug exhibits, and the accused is acquitted without calling
upon him to enter on his defence.