Public Prosecutor v Lee Chwee Kiok  1 MLJ 45:
 1 MLJ 45
PUBLIC PROSECUTOR v LEE CHWEE KIOK
OCRJ KUALA LUMPUR
SELANGOR CRIMINAL TRIAL NO 2 OF 1977
19 September 1977
Criminal Law and Procedure — Dangerous Drugs — Trafficking — Charge amended — No consent of Public Prosecutor on the amended charge — Whether trial was a nullity — Dangerous Drugs Ordinance, 1952, ss 37(b) & (g), 39B(1)(a), 39B(1)(c), 39(B)(3) — Criminal Procedure Code (FMS Cap 6), s 214(i)
Dangerous Drugs — Trafficking — Amended charge — Acquittal — Dangerous Drugs Ordinance, 1952, ss 37(b) & (g), 39B(1)(a), 39B(1)(c), 39(B)(3) — Criminal Procedure Code (FMS, Cap 6), s 214(i)
The accused was originally charged with trafficking in dangerous drugs on July 21, 1976 at TBG 1306 Jalan Harper, Kelang under section 39B(1)(a) of the Dangerous Drugs Ordinance. On November 25, 1976 the Public Prosecutor issued his written consent to prosecute under section 39B(3) of the said Ordinance. At the trial, on September 19, 1977, the learned Deputy Public Prosecutor amended the charge in two respects: The offence was alleged to have been committed at TBG 1306A, Jalan Harper, Kelang and the offence alleged was that of doing an act preparatory to trafficking under section 39B(1)(c) of the Dangerous Drugs Ordinance. No consent of the Public Prosecutor had been obtained on the amended charge.
Held, acquitting and discharging the accused:
the trial was a nullity as the Public Prosecutor had not given his consent on the amended charge;
the facts as found in this case did not support either charge.
Cases referred to
Abdul Hamid v Public Prosecutor  MLJ 231
Lim Seo v R  MLJ 304
Lyn Hong Yap v Public Prosecutor  MLJ 226
Gulamoydeen bin Mohamed Haniffa (Deputy Public Prosecutor) for the Public Prosecutor.
Radzi bin Tan Sri Sheikh Ahmad for the accused.
In this case the accused was charged under section 39B of the Dangerous Drugs Ordinance. At the close of the case for the prosecution, I heard the submissions of both counsel and then directed the jury to return a verdict of not guilty under section 214(i) of the Criminal Procedure Code. They did so, whereupon I acquitted and discharged the accused. My reasons for taking this course are as follows:
The accused was originally charged with trafficking in dangerous drugs on July 21, 1976 at TBG 1306, Jalan Harper, Kelang under section 39B(1)(a) of the Dangerous Drugs Ordinance. On November 25, 1976 the Public Prosecutor issued his written consent to prosecute under section 39B(3) of the said Ordinance. She was first produced before the Magistrate at Kelang on December 16, 1976 and at the close of the preliminary inquiry on January 28, 1977 she was committed to stand trial at the High Court on the same charge.
When the trial commenced before me however on September 19, 1977, the learned Deputy Public Prosecutor amended the charge in two respects:
The offence was alleged to have been committed at TBG 1306A, Jalan Harper, Kelang.
The offence, alleged was that of doing an act preparatory to trafficking under section 39B(1)(c) of the Dangerous Drugs Ordinance.
The question is whether the court has jurisdiction to proceed with the trial on the amended charge without a fresh consent by the Public Prosecutor. As the matter is res integra I proceeded with the trial to save the public expense, the witnesses and jury being present in court. It will be observed that although the original and amended charges are two distinct offences, they are both created by the same section of the law viz. section 39B(1) and both carry the same penalty. Both require the consent of the Public Prosecutor under section 39B(3). The learned Deputy Public Prosecutor argued that the amendment was technical and as the Public Prosecutor had given his consent on the original charge he was at liberty to amend the charges in the manner he did. I do not think so. It was held in Abdul Hamid v Public Prosecutor  MLJ 231 that a consent to prosecute “is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side”. The Public Prosecutor has clearly exercised his mind in respect of the original charge when he gave his consent to prosecute some four months after the alleged offence. It was incumbent on him however to exercise the same degree of deliberation in respect of the amended charge. He has not done so. In Lim Seo v Regina  MLJ 304 counsel was given sanction to prosecute undersection 379 of the Penal Code but he proceeded under section 381 of the Penal Code instead. It was held that counsel cannot depart from the specific authorisation of the Public Prosecutor. It seems to me that the same principles apply here. The facts of the case were fully before the Public Prosecutor at the time of giving his consent and he could have elected to proceed on the amended charge then. He did not do so. It would appear therefore that the Public Prosecutor has not given his consent to prosecute under the amended charge. That being so, the trial is a nullity on the authority of Lyn Hong Yap v Public Prosecutor  MLJ 226.
Be that as it may, the facts as I found them did not support either charge. In the first place there is the confusion about the address. It is clear from the evidence that the police party raided house no. TBG 1306. The confusion began when they found a water bill at TBG 1306 in the name of the accused but the address given was TBG 1306A. There is no evidence that house number TBG 1306 and TBG 1306A are in fact the same house nor is there evidence to show that there is no house numbered TBG 1306A. A reasonable inference is that these numbers indicate two separate houses and if that be so a doubt arises if the accused had the care and management or was the occupier of the premises TBG 1306 Jalan Harper. This fact is important since the prosecution was relying on the presumptions under section 37(b) and (g) of the Dangerous Drugs Ordinance. I found on the evidence that these two presumptions did not apply.
Secondly, the drugs were found in tins under the kitchen. These tins were found amongst other tins which were empty. There was no evidence to connect the accused with these tins and as I had found
1979 1 MLJ 45 at 46
that the presumption of ‘occupier’ did not apply to the accused, the presumption of knowledge of the concealment of the drugs under section 37(g) did not arise either.
Thirdly, the quantities of drugs found were insufficient to raise the presumption of trafficking under section 37(da):
Found in premises
Minimum Quantity under section 37(da)
It was this fact that led to the amendment of the alleged offence. I pause here to observe that there is no change in the quantities found by the police and at the trial. This fact was known to the prosecution throughout and certainly to the Public Prosecutor when he signed the consent on November 25, 1976. The evidence did not disclose any fact of trafficking as defined in section 2 other than that of concealment. As the evidence stood it was insufficient to support a charge under section 39B(1)(a).
Turning now to the amended charge. Packing drugs in small packets is preparatory to trafficking within the meaning of section 39B(1)(c) but there was no evidence that the accused packed these drugs or that she had anything to do with them.
The drugs were certainly concealed under the kitchen at TBG 1306 Jalan Harper. Who concealed the drugs there? I found as a fact that the accused did not.
Solicitors: Radzi bin Tan Sri Sheikh Ahmad.