Abdullah Bin Atan v Public Prosecutor (05(M)-56-02/2019(J); Didengar Bersama 05(M)-205-09/2018(W); 05(M)-206-09/2018(W); 05(LB)-207-09/2018(W))

05(M)-56-02/2019(J) between Abdullah bin Atan (“Abdullah”) v

(ii) 05(M)-205-09/2018(W) between Mohamad Reza Ghaem Panah Nezamali (“Reza”) v Public Prosecutor;

(iii) 05(M)-206-09/2018(W) between Hasan Javadipirouz Avazali (“Hasan”) v Public Prosecutor; and

(iv) 05(LB)-207-09/2018(W) between Public Prosecutor v Mahmood Yary Mohammad (“Mahmood”), MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 4 were heard together as they raised a common point of law, i.e. whether, in the trial of a charge for drug trafficking under section 39B of the Dangerous Drugs Act 1952 (“the DDA”), the presumption of trafficking in section 37(da) of the DDA constitutes credible evidence for the prosecution to make out a prima facie case under section 180(4) of the Criminal Procedure Code (“the CPC”). [2] Abdullah was convicted by the High Court at Johor Bahru while Mahmood, Reza and Hasan were convicted by the High Court at Kuala Lumpur, for the offence of trafficking in dangerous drugs. They were sentenced to death under section 39B of the DDA. [3] Aggrieved by the decision of the High Court, they appealed to the Court of Appeal. The Court of Appeal dismissed the appeals by Abdullah, Reza and Hasan but allowed the appeal by Mahmood. Hence the appeals before us by Abdullah, Reza and Hasan against the decision of the Court of Appeal affirming their convictions and sentence, and by the Public Prosecutor against the acquittal and discharge of Mahmood. Background Facts Appeal No. 56 (Abdullah’s case) [4] The charge against Abdullah reads: “Bahawa kamu pada 15/5/2016 jam lebih kurang 04.45 petang, di bilik sewa Nombor 16-01, Jalan Permas 4/4, Bandar Baru Permas Jaya, dalam Daerah Johor MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 5 Bahru, dalam Negeri Johor, telah didapati mengedar dadah berbahaya jenis Cannabis seberat bersih 4,213 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952, dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”. [5] Briefly, the narrative of the prosecution’s case is as follows. On 15.5.2016, Insp. Mohd Nasaruddin bin Adnan (“SP4”) and his team were on duty at the Permas Jaya area, where SP4 saw Abdullah standing by the road side. After observing Abdullah for about 15 minutes, SP4 approached Abdullah. SP4 introduced himself as a police officer. Abdullah immediately took flight. SP4 gave chase and Abdullah was apprehended. [6] A body search was conducted on Abdullah. Nothing incriminating was found. Abdullah had a set of keys which were seized by SP4. [7] It was the prosecution’s case that upon interrogation, Abdullah disclosed information that led to the discovery of the impugned drugs at No. 16-01, Jalan Permas 4/4, Permas Jaya, Johor Bahru (“the premises”), a double storey shop house. SP4 and his men gained entry to the premises using one of the keys seized from Abdullah. According to SP4, upon further questioning, Abdullah pointed to a room. The room was locked and using another key from the set seized earlier, SP4 unlocked the door. Upon gaining access, SP4 asked Abdullah where he kept the drugs. Using his right foot, Abdullah indicated that the drugs were under a table in the room. MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 6 [8] SP4 recovered an orange plastic bag wherein there were 5 compressed slabs. On analysis by the chemist, the drugs were confirmed to be Cannabis, the subject matter of the charge. [9] The learned trial judge found that the prosecution had made out a prima facie case against Abdullah. Pursuant to section 27 of the Evidence Act 1950, the learned judge admitted the information given by Abdullah, upon which the drugs were found. His Lordship found that the statement under section 27 “enabled knowledge of the existence and the whereabouts of the drugs and its nature to be attributed to the accused. As the accused had such knowledge, the mental element required to establish possession was therefore present.”. [10] Having found that Abdullah had actual possession of the impugned drugs, and given the weight of the drugs which exceeded the statutory minimum amount, his Lordship invoked the presumption under section 37(da) of the DDA to hold that the prosecution had also proven the element of trafficking. In the circumstances, Abdullah was ordered to enter on his defence. [11] Abdullah’s defence was essentially that he had no knowledge of the drugs. He testified that the drugs belonged to one Annie who stayed in the same room with him. [12] In evaluating the defence, the learned trial judge made inter alia, a finding of fact that there was no personal documentation of any kind in the MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 7 name of Annie found in the room. Neither was there any item to indicate the presence of a female. [13] The learned trial judge concluded that the existence of Annie was concocted by Abdullah to exculpate himself. His Lordship found that Abdullah failed to rebut on a balance of probabilities the statutory presumption under section 37(da) of the DDA and had failed to raise a reasonable doubt on the prosecution’s case. Abdullah was thus convicted and sentenced to death. [14] In the Court of Appeal, two grounds were advanced to support Abdullah’s appeal i.e. that the learned trial judge erred in admitting the statement under section 27 of the Evidence Act 1950 and that the learned judge erred in failing to give due consideration to the fact that Annie had access to the room and the impugned drugs. [15] The above grounds found no favour with the Court of Appeal. Abdullah’s appeal was thus dismissed and the sentence and conviction affirmed. Appeals No. 205, 206 and 207 (Reza, Hasan and Mahmood’s cases) [16] Mahmood, Reza and Hasan, all Iranian nationals were jointly charged as the first, second and the third accused respectively, for an offence under section 39B(1)(a) of the DDA. The charge against them reads: MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 8 “Bahawa kamu bersama-sama pada 11/2/2012 jam lebih kurang 5.00 petang di seunit rumah No. 9, Jalan Dutamas Melor 1, Changkat Kiara Bayu Off Jalan Dutamas, dalam Daerah Sentul, dalam Bandaraya Kuala Lumpur, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 15,821 gram. Oleh yang demikian, kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 38B(2) Akta yang sama serta dibaca bersama dengan seksyen 34 Kanun Keseksaan.”. [17] The prosecution’s case against them may be summarised thus. The police had conducted surveillance on No. 9 Jalan Dutamas Melor 1, Changkat Bukit Kiara Bayu (“the house”) beginning from 6.2.2012 where movements by individuals as well as vehicles going in and out of the house were monitored. This was done from the adjacent Prima Duta Condo’s water reservoir tank located within 500 meters from the said house, by using binoculars. For the purpose of recording movements of a white Proton Persona car with registration number WWB 1217 (“the car”), surveillance was also conducted at the gate of the guard post. [18] On 11.2.2012 at about 4.50 pm, the car was seen entering the gate and it stopped at the said house. One man was seen exiting the car and another was seen coming out from the house. Both were then seen entering the house. The police moved in. They broke the front door of the house. ASP Didi Fairuz bin Zainal Abidin (“SP8”) immediately headed to the top floor of the house. He saw three men fleeing the house through the roof. One was described as wearing a white shirt and a long jeans while the other two were described as wearing shorts and, shirtless. MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 9 [19] From the prosecution’s narrative, the three men fleeing the house were the accused persons who were then arrested and brought to the house. In the house, police discovered boxes of drugs containing 15,821 grammes of Methamphetamine alongside other evidence, which essentially established the fact that the house was used to manufacture drugs. [20] The trial judge made positive findings that the three accused were in possession of the drugs and given the weight of the drugs, his Lordship invoked the presumption of trafficking under section 37(da) of the DDA, to find that a prima facie case of trafficking had been established against the three accused. The three accused were thus ordered to enter their defence. [21] In gist, Mahmood’s defence was based on identification: it was contended that at the time of the arrest, he was not wearing a white shirt as asserted by the prosecution, but a blue floral shirt. Mahmood’s version was that he was working at 1001 Nights Restaurant & Club as a delivery man and that he was at the house to deliver food. He denied fleeing the house through the roof. [22] Reza and Hasan both relied on the same principal defence that they had no knowledge of the drugs. They contended that they only went to the house upon invitation of one Mehdi and that they had been spending time drinking until the time of the arrest. [23] The learned trial judge found that the defences were bare denials and that all the accused had failed to rebut the presumption of trafficking on a balance of probabilities and had failed to raise a reasonable doubt on the MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 10 prosecution’s case. They were accordingly convicted and sentenced to death. [24] On appeal, the Court of Appeal quashed Mahmood’s conviction. The Court of Appeal found that the learned trial judge erred in law and fact in finding that Mahmood had custody and control of the impugned drugs. The conviction of Mahmood was found to be wholly unsafe, as there was no evidence to show that Mahmood resided at the house and that he was at the house during the whole operation. The Court of Appeal found that on the day the raid took place, Mahmood had been at the house for 8 minutes and this was held to be insufficient to establish custody and control of the impugned drugs on his part. [25] As regards Reza and Hasan, the Court of Appeal found that the learned trial judge did not err when he found both Reza and Hasan to be in possession of the impugned drugs. From the direct evidence adduced by the prosecution which included the scientific evidence of DNA profile and finger prints of Reza and Hasan which placed them on the 4th floor of the house where the drugs were found, the Court of Appeal opined that it was fair to infer that they must have knowledge of the drugs when they fled from the house to evade arrest. Proceedings in the Federal Court [26] Before us, Abdullah, Reza and Hasan raised a common point of law, i.e. that the trial judge erred in invoking the presumption of trafficking under MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 11 section 37(da) of the DDA to hold that the prosecution had established a prima facie case. [27] In essence, the arguments on this point of law are as follows:

section 180(4) of the CPC required the prosecution to prove each ingredient of the offence by “credible evidence”.

(ii) a prima facie case can only be found on “credible evidence”. A statutory presumption does not amount to evidence;

(iii) no “credible evidence” had been adduced to prove the ingredient of trafficking;

(iv) as such, the trial judge was not entitled to find that a prima facie case of trafficking had been made out; and

reliance on the presumption under section 37(da) of the DDA is in breach of section 180(4) of the CPC. [28] In response, the prosecution submitted that:

the presumption of trafficking under section 37(da) of the DDA was introduced by Parliament to strengthen the law pertaining to drug offences and to assist law enforcers. The Court should consider the intention of the Parliament in interpreting section 37(da) of the DDA; MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 12

(ii) laws enacted by the legislature are presumed to be constitutional. The court cannot give a legislative provision a different meaning than what was intended by legislature to avoid encroaching into the powers of the legislature;

(iii) the presumption of trafficking under section 37(da) of the DDA is a rebuttable presumption, and therefore does not deny the accused the right to a fair trial;

(iv) the presumption of trafficking is a common practice in other jurisdictions that advocate fundamental rights and equality;

section 180(4) of the CPC is a law of general application for prosecution to establish sufficient evidence for prima facie case. The DDA is a specific law. Any conflict between the provisions in the two laws may typically be resolved by the maxim generalia specialibus non derogant; and

(vi) the presumption of trafficking under section 37(da) of the DDA is credible evidence. [29] Insofar as Reza and Hasan were concerned, they had also raised issues of fact in contending that the courts below erred in their findings on the ingredient of possession for the following reasons: MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 13

that they had no custody and control of the drugs for the reasons that they were merely guests at the house;

(ii) that they were not the owners or tenants of the house;

(iii) that there was possibility of access by others;

(iv) that their fingerprints were not found on the impugned drugs;

that undue emphasis was placed on the conduct of running away; and

(vi) that the surveillance team and the raiding team were unable to confirm the identity of the men seen coming in and out of the house and the men fleeing the scene during the raid. [30] Reza and Hasan had further contended that their defence had not been adequately, fairly and sufficiently considered by the learned trial judge and the Court of Appeal, and that this non-direction amounted to a misdirection prejudicial to their conviction. [31] On the prosecution’s appeal, learned DPP essentially argued that the Court of Appeal erred in acquitting Mahmood as –

the presence of Mahmood for 8 minutes in the house, taken together with the earlier surveillance, the escape and the arrest together with Reza and Hasan show that Mahmood had custody and control and knowledge of the impugned drugs;

(ii) the arrest of Mahmood was not accidental; MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 14

(iii) the surveillance on the car seen driven by a male, entering the house and staying for prolonged hours just 5 days prior to the arrest show knowledge and possession of the impugned drugs by Mahmood; and

(iv) it may be inferred from the presence of Mahmood together with Reza and Hasan before the raid and the immediate fleeing from the said house that there was a prior meeting of minds for the purpose of trafficking in the impugned drugs. Our Decision

Issue of Law [32] The point of law raised in these appeals concerns the interpretation of subsections (1) and (4) of section 180 of the CPC which read: “Procedure after conclusion of case for prosecution

(1) 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. ...

For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 15 offence which if unrebutted or unexplained would warrant a conviction.”. [33] Section 180(4) in its present form was introduced vide section 22 of the Criminal Procedure Code (Amendment) Act 2006 [Act A1274]. The original version of section 180 reads: “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.”. [34] Act A1274 was enacted to provide for the standard of proof at the end of the prosecution case. Prior to the Privy Council decision in Haw Tua Tau v PP [1981] 2 MLJ 49, the consistent judicial opinion was that at the close of the prosecution case, the burden on the prosecution was to adduce evidence to prove their case beyond all reasonable doubt. The judge must not necessarily accept all the prosecution evidence at face value, but must weigh the evidence to decide whether it is safe to convict upon such evidence standing alone (see PP v Chin Yoke [1940] MLJ 47; PP v Fong Ah Tong & Cheong Chi Shen [1940] MLJ 20; Soo Sing & Ors v PP [1951] MLJ 143). [35] The legal position was altered by the Privy Council decision in Haw Tua Tau (supra), an appeal from the Singapore Court of Criminal Appeal. In interpreting the Singapore equivalent of section 180 of the CPC, Lord Diplock held that: MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 16

the section only required the prosecution to make out a case against the accused by adducing some evidence of primary facts;

(ii) the test at the close of the prosecution’s case is a pure hypothetical question of law, i.e. whether there is some evidence (not inherently incredible) which, if the court were to accept as accurate, would establish each essential element of the offence. It is not a question of fact as to whether the prosecution has already establish a case beyond reasonable doubt against the accused;

(iii) at the close of the prosecution’s case, the court must act on the presumptions that: a. all evidence of primary facts is true, unless it is inherently so incredible that no reasonable person would accept it as being true; and b. there will be nothing to displace inferences as to further facts which would reasonably be drawn from the primary facts, in the absence of any further explanation. [36] The decision of the Privy Council suggests that at the close of the prosecution’s case, the court is only required to undertake a minimal evaluation of the evidence. When the court finds that the prosecution has made out a prima facie case, it merely means that the facts are not inherently MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 17 incredible and there is some evidence that goes to each essential element of the offence (see Mallal’s Criminal Procedure, 6th ed (Kuala Lumpur: MLJ, 2001) at I3161). [37] Haw Tua Tau led to a series of conflicting decisions. In Khoo Hi Chiang v PP [1994] 1 MLJ 265 and Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1, our apex court expressly departed from Haw Tua Tau. It was held that at the close of the prosecution’s case, the court must undertake a maximum evaluation of the prosecution evidence to determine whether the prosecution has established the charge against the accused beyond all reasonable doubt. The 1997 Amendment [38] In order to re-establish the prima facie test, in 1997, Parliament vide Act A979, amended section 180 of the CPC. The amended section 180 of the CPC reads: “180. (1) 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.

If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal. MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 18

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.”. [39] The purpose of the amendment was to reinstate the law as stated in Haw Tua Tau, and to thereby depart from Khoo Hi Chiang and Arulpragasan. The amendment was to clarify that the standard of proof at the close of the prosecution’s case is prima facie and not beyond reasonable doubt (see Hansard, House of Representatives, Second Reading of Criminal Procedure Code (Amendment) Bill 1996 on 18.12.1996 at 13-16, 47-48). [40] The amendment however did not lead to a return to Haw Tua Tau. Subsequent to the amendment, in Looi Kow Chai & Anor v PP [2003] 2 MLJ 65; Balachandran v PP [2005] 2 MLJ 301; PP v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393, the courts in interpreting the amended section 180 CPC, have held that:

to establish a prima facie case, the prosecution must adduce evidence beyond reasonable doubt, such that the evidence must be sufficient to convict the accused if he remains silent;

(ii) the court must undertake a maximum evaluation of the prosecution evidence, including carefully scrutinising the credibility of the prosecution witnesses. MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 19 The 2006 Amendment [41] It was against the background of these decisions that section 180 of the CPC was again amended by Parliament in 2006 vide Act A1274 to insert subsection (4) in the present terms (see Hansard, House of Representatives, Second Reading of Criminal Procedure Code (Amendment) Bill 2004 on 13.7.2006 at 32). By tracing its legislative history, it is apparent that the whole purpose of section 180(4) of the CPC was to clarify Parliament’s intention for the threshold to be applied at the close of the prosecution’s case. [42] The purpose of section 180(4) CPC was thus not to exclude the use of presumptions, inferences, or anything other than direct evidence, to establish a prima facie case. On the contrary:

the Privy Council in Haw Tua Tau itself expressly envisaged that inferences may be drawn from the primary facts adduced, and the court must presume such inferences to be true at the close of the prosecution’s case; and

(ii) statutory presumptions have often been invoked by the prosecution in order to establish a prima facie case of drug trafficking in previous cases. No concern was raised in Parliament as to the use of presumptions when considering amendments to section 180 of the CPC (see: Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169; Tan Boon Kean v PP [1995] 3 MLJ 514). MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 20 [43] Section 180(4) of the CPC must be read in light of its context and legislative purpose. By so doing, the phrase “credible evidence proving each ingredient of the offence” in section 180(4) means that the prosecution may prove each ingredient of the offence either:

by adducing credible direct evidence of that ingredient;

(ii) by drawing inferences of fact, i.e. adducing credible circumstantial evidence, from which the ingredient can be inferred; or

(iii) By invoking presumptions of law, i.e. adducing credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists. [44] As to what constitutes ‘a prima facie’ case, the judgment of Vincent Ng J (as he then was) in PP v Ong Cheng Heong [1998] 4 CLJ 209 is instructive. Although Ong Cheng Heong was decided prior to the amendment in 2006, we respectfully endorse his Lordship’s views, at pg. 225: “What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. … 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 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, but is not conclusive”. (Emphasis added). It would follow that there should be credible evidence on each and every ingredient of the offence. Credible evidence is evidence which has been filtered and which has MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 21 gone through the process of evaluation. Any evidence which is not safe to be acted upon, should be rejected.”. At pg. 224, his Lordship said: “… to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every 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 persuasive burden in terms of qualitative degree of proof.”. [45] The only basis of learned counsel’s contention that the presumption in section 37(da) cannot be invoked to establish a prima facie case under section 180 of the CPC, is that presumption is not evidence. Hence, it was argued that in relying on such presumption, it cannot be said that the prosecution has “adduced credible evidence proving each ingredient of the offence” under section 180(4) of the CPC. The argument is premised purely on semantics. [46] Indeed, a presumption is not evidence; rather, it is a rule of evidence stating how a particular fact can be proved, as supported by the following authorities: “A presumption has no probative value and is not evidence, being nothing more than a rule of law which assists a party in making out a MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 22 prima facie case” (see Michigan Law Review, “Presumptions as Evidence in Criminal Cases” at 504); “Presumptions are a special mode of proving facts which must otherwise be proved by evidence. Where there is direct evidence to prove the presumed facts, the presumptions do not need to be applied (see PP v Chia Leong Foo [2000] 4 CLJ 649 at 668).”. [47] Presumptions of fact and law operate in every legal system. The use of presumptions has always been standard judicial practice. This Court has endorsed the use of the presumption in section 37(da) of the DDA by the prosecution to establish a prima facie case of drug trafficking. What is required of the prosecution is to adduce credible evidence of the basic facts (i.e. the nature and amount of the drug and, possession), in order to rely on the presumption of trafficking in section 37(da). [48] In Muhammad bin Hassan v Public Prosecutor [1998] 2 MLJ 273, the issue was whether at the close of the prosecution’s case, the Court, in a trafficking case, could make a finding of ‘custody and control’ to presume possession and then on that presumption, further presume trafficking. This Court held that the use of presumption over presumption was unduly harsh and oppressive. Nevertheless, it was unanimously recognised that the presumption of trafficking may be invoked only once a finding of actual possession is made. Chong Siew Fai CJSS said the following at pages 288- 289, 292: MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 23 “The wordings in sub-ss (d) and (da) of s 37 are clear and unequivocal. That being so, their meanings must be determined from the language employed and the two subsections must be taken to mean exactly what they respectively say. … In our view, there is clear undeniable distinction between the word ‘deemed’ used in s 37(d) and the word ‘found’ employed in s 37(da) of the Act. The ‘deemed’ state of affairs in s 37(d) (ie deemed possession and deemed knowledge) is by operation of law and there is no necessity to prove how that particular state of affairs is arrived at. There need only to be established the basic or primary facts necessary to give rise to that state of affairs, ie the finding of custody and control. Such presumptions as under s 37(d) (and for that matter, the one under s 37(da)) are sometimes described as ‘compelling presumptions’ in that upon proof of certain facts by a party (in our present case, proof of custody or control in s 37(d) by the prosecution), the court must in law draw a presumption in its favour (ie presumptions of possession and knowledge) unless the other party proves the contrary. Such a presumption has the compelling force of law. It is a deduction which the law requires the trial court to make. On the other hand, the word ‘found’ in the opening phrase of s 37(da) connotes a finding after a trial by the court. … In our view, to constitute ‘possession’ under s 37(da) of the Act, so as to be capable of forming one of the ingredients thereunder thereby MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 24 giving rise to the presumption of trafficking, there must be an express affirmative finding (as opposed to legal presumption) of possession as understood in criminal law, based on evidence. … We would further add that in so construing as we do, we see no injustice to the prosecution. In a proper case where the evidence so warrants and the amount of the dangerous drug reaches or exceeds the quantity specified in s 37(da), there is nothing to prevent a trial court from coming to a factual finding of possession as understood in criminal law, thereby attracting the presumption of trafficking under the said s 37(da) which, of course, is rebuttable.”. [49] Applying the above passage in Muhammad bin Hassan, ‘based on evidence’ therefore refers to the finding of possession and not the finding of trafficking (see also PP v Tan Tatt Eek [2005] 2 MLJ 685). [50] Another case on point is Public Prosecutor v Yuvaraj [1969] 2 MLJ 89, where the accused was charged with corruption before the Sessions Court but was acquitted at the end of the trial. The question before the Privy Council was whether the legal burden shifted to the accused, and if it did, what was the requisite standard of proof. The relevant statute in that case also contained a presumption of corrupt intent. Lord Diplock observed as follows, at page 92, in respect of how presumptions operate as regards the ingredients of an offence: MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 25 “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a (sic) fact’s being “disproved” there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that that fact does not exist. In their Lordships’ opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it it is more likely than not that the fact does not exist. The test is the same as that applied in civil proceedings: the balance of probabilities. … in the absence of any statutory provision reversing the burden of proof the court determines whether a fact the existence of which is a necessary ingredient of a criminal offence has been “proved” or “not proved” by the prosecution upon whom the onus lies to prove it. It is merely another way of saying that the prosecution must not only prove the existence of the first two factual ingredients of the offence, viz. (1) that a gratification was paid or given to or received by the defendant and (2) that at the time of the payment, gift, or receipt he was in the MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 26 employment of a public body, but must also satisfy the court that the circumstances in which the gratification was paid, given or received give rise beyond reasonable doubt to an inference of fact that it was paid, given or received with a corrupt motive. This is the ordinary way in which the prosecution satisfies the burden of proving the motive with which an act was done by the defendant where the onus of doing so lies with the prosecution. In their Lordships’ view it gives no sufficient effect to the reversal of the ordinary onus of proof by an express statutory provision that a fact which constitutes an ingredient of a criminal offence shall be deemed to exist “unless the contrary is proved.”. [51] In Ex Parte Tan Swee Eng [1941] 1 MLJ 191, Terrell, Ag. CJ (F.M.S.) at page 192 adopted and applied the rule of construction in Webb v Outrim

AC 81: “When a particular form of legislative enactment, which has received authoritative interpretation, whether by judicial decision or by a long course of practice, is adopted in the framing of a later Statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to be the meaning which has been so put upon them.”. [52] The presumptions in section 37(a) to (j) of the DDA have been in place since the promulgation of the Dangerous Drugs Ordinance 1952. The presumption of trafficking in section 37(da) of the DDA was inserted in 1997. These statutory presumptions long pre-date the insertion of section 180(4) MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 27 of the CPC in 2006. Therefore, when section 180(4) of the CPC was introduced, Parliament is presumed to be aware of the existing law and of the specific manner and method in which trafficking cases are proved i.e. on a presumption basis upon a finding of fact of possession. Had Parliament intended the drastic consequence of effectively repealing a long-established statutory provision, one would expect Parliament to have said so in clear terms (see Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 at [33]). [53] Furthermore, the DDA is a specific Act relating to and dealing with trials in respect of dangerous drugs. The CPC, on the other hand, is a law of general application. Where there is a conflict between a specific law and a general law, the conflict may be resolved in one of two ways. The first is via the maxim generalia specialibus derogant. The second is the doctrine of harmonious construction. [54] The former Federal Court had the occasion to consider the operation of the CPC and the DDA in Public Prosecutor v Chew Siew Luan [1982] 2 MLJ 119. In Chew Siew Luan, the question was whether the provisions relating to bail in the CPC were applicable to a trafficking charge preferred under the DDA. The Federal Court unanimously held that the provisions of the DDA will apply to the exclusion of the CPC. This is what Raja Azlan Shah CJ (Malaya) (as His Majesty then was) said: “Now, the Criminal Procedure Code (F.M.S. Cap. 6) which came into force on 1.1.1927 is an enactment regulating criminal proceedings in general in the former Federated Malay States. It was amended and MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 28 extended throughout Malaysia by the Criminal Procedure Code (Amendment and Extension) Act, 1976 on 10.1.1976. It cannot be gainsaid that it is a written law within the meaning assigned in section 2 of the Interpretation Act, 1967. The Dangerous Drugs Act 1952 (Revised – 1980) is an Act specifically designed to regulate the importation, exportation, manufacture, sale and use of, inter alia, dangerous drugs, and “to make special provisions relating to the jurisdiction of courts in respect of offences thereunder and their trial, and for purposes connected therewith”. In other words, the Act is in substance a special law passed by Parliament in derogation of the rights of a person concerning the granting of bail in an otherwise ordinary case. We further note in particular that section 41B of the Act is an entirely new section introduced by the Dangerous Drugs (Amendment) Act, 1978 (A A426) and became operative on 10.3.1978. Generalibus specialia derogant is a cardinal principle of interpretation. It means that where a special provision is made in a special statute, that special provision excludes the operation of a general provision in the general law. … It would be erroneous to apply expressions used and provisions made in one statute to another and entirely different one in complete disregard of the latter’s express stipulations in the light of its specific purpose and object. On the other hand, it is a sound, and, indeed, a well-known principle of construction of a statute that the purport of words and expressions used in a legislative measure must take their colour from the context in which they appear. … The provisions MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 29 regulating the granting of bail under the Dangerous Drugs Act must be construed in the context of that Act and not in that of the Criminal Procedure Code and to that extent the general provisions of the Criminal Procedure Code must ex necessitate yield to the specific provisions of section 41B of the Dangerous Drugs Act in that regard. We should perhaps also observe en passant that any other construction would result in nullifying the purport and effect of the provisions of section 41B(1)(c) of the Dangerous Drugs Act …”. [55] The above observation by the then CJ (Malaya) fits squarely into the present appeals. In that regard, the opening words of section 37 of the DDA are important. They provide: “In all proceedings under this Act or any regulation made thereunder …” and the section then sets out specific presumptions, in this case, of trafficking under section 37(da). For convenience, the relevant portion of section 37(da) of the DDA on presumption of trafficking is reproduced below: “37. In all proceedings under this Act or any regulation made thereunder — (da) any person who is found in possession of— …

(vi) 200 grammes or more in weight of cannabis; ….

(xvi) 50 grammes or more in weight of Methamphetamine; MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 30 otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug;”. [56] The fundamental rule in criminal law is that the prosecution must prove every element of the offence charged beyond reasonable doubt, and that the accused bears no onus of proof. This general rule is however subject to exceptions as there is a limit to what the prosecution can reasonably be expected to prove. The English common law authorities codified in our written law affirmatively recognise that it is lawful in certain cases to shift the onus to the accused to exculpate himself in certain situations. These situations include defences which relate to facts especially within the knowledge of the accused including the proof of lawful authority; or where a statutory presumption provides that a particular fact is presumed to exist unless the contrary is proved (see PP v Gan Boon Aun [2017] 3 MLJ 1; Alma Nudo Atenza v Public Prosecutor & another appeal [2019] 4 MLJ 1 and Jazlie Jaafar v Public Prosecutor [2020] 2 CLJ 28). [57] The role of presumptions in the wider context of the criminal legal system may be simplified thus: where a statutory presumption is invoked to presume the existence of certain fact as being the ingredient of the offence, the onus then shifts to the accused to disprove the presumed fact on the balance of probabilities and to thereby exculpate himself from the charge. If he does so, he earns an acquittal. If he does not, he is guilty of the charge. [58] Section 180(4) of the CPC and section 37(da) of the DDA must be read harmoniously, applying the doctrine of harmonious construction. In a MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 31 nutshell, the doctrine requires that the legislation be construed in a way which would achieve a harmonious result and that construction should favour coherence in the law (see Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muzaidi bin Mukhtar [2020] 1 MLJ 141 at paragraphs 78-79). A harmonious construction would limit ‘credible evidence’ to the actual finding of possession, as propounded in Muhammad bin Hassan (supra), and once that is established successfully, it would invoke the presumption of trafficking. Defence will then be called on trafficking where the legal burden would shift to the accused to disprove trafficking. [59] Reverting to learned counsel’s interpretation of the two sections respectively of the CPC and the DDA and his argument that reliance on the presumption under section 37(da) of the DDA is in breach of section 180(4) of the CPC, those arguments if acceded to, would render section 37(da) superfluous or in the words of this Court in Chew Siew Luan, “would result in nullifying the purport and effect” of the provisions of section 37(da) of the DDA. Further, to sustain learned counsel’s argument that the learned trial judge was not entitled to find a prima facie case of trafficking by invoking the presumption of trafficking under section 37(da), would render section 37(da) otiose. Learned counsel for Abdullah indeed conceded during oral argument that his submission was in effect an attempt to convince us to do away with the presumptions regime of the DDA. [60] On a proper construction, to make out a prima facie case under section 180(4) of the CPC, credible evidence is still required for a prima facie finding of actual possession. It is then that the presumption of trafficking kicks in for the accused to disprove on a balance of probabilities that he did not traffic in MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 32 the dangerous drugs. Any other construction would be against the weight of settled judicial precedent. It would also render the entire presumption regime superfluous, devoid of any utility and would effectively amount to a repeal of section 37(da) of the DDA. [61] To conclude on this issue, it is our unanimous view that having found that actual or affirmative possession of the impugned drugs by the accused had been established based on credible evidence and the weight of the drugs in question exceeded the statutory limit, the learned trial judges were entitled to find that a prima facie case had been made out under section 180(4) of the CPC, by invoking the presumption of trafficking under section 37(da) of the DDA. This approach is correct in law.

(ii) Issues of Fact [62] We now move to the issues of fact raised by Reza and Hasan, where they challenge the prosecution’s version of their arrest. It was contended that knowledge and possession of the drugs stated in the charge had not been proven against them and that the learned trial judge had failed to adequately evaluate the defence case. For the record, learned counsel for Abdullah confined his oral and written submission on the issue of law as discussed above and did not pursue any challenge on the facts. For the record too, we are satisfied with the findings of facts by the courts below. [63] In essence, the defence of Reza and Hasan was that they had been drinking with one Mehdi at the 1001 Nights Restaurant & Club. Mehdi had invited Reza and Hasan to his house which was the same house where the MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 33 drugs were found. It was their evidence that Mehdi drove both of them to the house in a Mercedes Benz car. At the house, they continued drinking from a glass beaker until they fell asleep. [64] The learned trial judge found their version, particularly relating to Mehdi, to be improbable for the reason inter alia that Mehdi was not immediately informed to the police and that the name Mehdi was only brought up during trial; that there was no Mercedes Benz car seen by the surveillance team and that there was no person by the name of Mehdi found at the house when the raid took place. The Court of Appeal found no error in the learned trial judge’s assessment of the evidence. It formed the view that the learned judge was entitled to come to the finding as he did. [65] The Court of Appeal had also considered the fact that Reza and Hasan did not own the house and neither were they tenants occupying it under any tenancy agreement. The tenancy agreement was in fact found to be fictitious and that someone had gone to great lengths to hide the actual tenancy. Notwithstanding, the Court of Appeal acknowledged the fact that Reza and Hasan were the only ones found in the house. Apart from the presence of Mehdi asserted by them, no other possibility was raised as to how they came to be the only ones at the house. And since they contended that they did not flee, which was contrary to the evidence of the prosecution witnesses, no explanation was forthcoming from both of them as to why they had fled from the crime scene. [66] We find no reason to depart from the findings of the Court of Appeal. At the time of arrest, Reza and Hasan were the only persons in control of the MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 34 premises. We agree with the Court of Appeal that looking at the whole evidence, it is highly improbable that their presence was coincidental. If indeed Mehdi was the culprit and was the cause of their predicament, common sense dictates that they inform the police about Mehdi soon after their arrest, and not wait until trial. And even if Mehdi is a real character, the version as presented by Reza and Hasan could not have raised any reasonable doubt on the prosecution’s case. [67] Considering all the facts and circumstances of this case, we find no error in the inference drawn by the learned trial judge that Reza and Hasan knew that the substances found in the house were illicit drugs. The discovery of various apparatus, laboratory equipment and chemical substances in the house and the testimony of the chemist on the use and functions of those apparatus, equipment and substances, lend credence to the proposition that the house was used as a clandestine drug laboratory. [68] We agree with the Court of Appeal that the overwhelming inference is that Reza and Hasan could not have no knowledge of what was transpiring in the house given the evidence that was adduced against them. More so, when the scientific evidence placed them at the 4th floor of the house where the impugned drugs were found. Although this was not the usual type of trafficking as it involved the manufacturing of drugs, based on the evidence of the prosecution, there was no error in the finding of the courts below that the element of custody and control and knowledge had been proven and that actual possession of the impugned drugs had been established. MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 35 [69] While we accept that there was an error of fact made by the learned trial judge in respect of Hasan’s clothing when he was arrested, we are of the view that such error did not vitiate the conviction of Hasan and did not occasion a miscarriage of justice. We have taken the liberty to examine the appeal records and we find that on the totality of the evidence, the convictions of both Reza and Hasan are safe. [70] In respect of Mahmood, the Court of Appeal found that there was no evidence establishing the fact that it was Mahmood who was seen entering the house during the surveillance period and none of the witnesses testified that it was Mahmood who was seen in the car. We find no appealable error in the finding of the Court of Appeal that Mahmood had been at the house for only 8 minutes when he was apprehended, and that this was insufficient to establish custody and control of the impugned drugs on his part. [71] Significantly, despite the extensive scientific investigations at the house, no DNA or fingerprint of Mahmood was found on any items in the house. When apprehended, Mahmood had with him his passport and access card to his own apartment at another premises. When Mahmood was arrested, he was wearing clothes which did not match the description by SP8 as the someone that he saw fleeing from the house through the roof. Mahmood was wearing shoes when he was arrested and he was not injured, whereas Reza and Hasan were not wearing shoes and they were injured, which according to the prosecution’s narrative, the injuries were sustained when Reza and Hasan jumped off the roof. MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 36 [72] Mahmood’s version of his defence that he went to the house to deliver food was mentioned in his statement to the police. Although no investigations were carried out in this respect, there was evidence from other witnesses i.e. Insp Kumbat anak Tan (SP21), Amir Mohamad Ghareh (SD2) and Hamidreza Rabiei Mohamad Taghi (SD5) that Mahmood was working at 1001 Nights Restaurant & Club. [73] The above facts and circumstances in our view support Mahmood’s version. We therefore see no reason to disturb the conclusion of the Court of Appeal that the element of possession was not proven by the prosecution against Mahmood. Conclusion [74] For the reasons adumbrated above, we find that –

the proposed interpretation of section 180(4) of the CPC to exclude presumptions is unsustainable as such a reading is unsupported by its legislative purpose, and leads to far-reaching consequences in criminal law;

(ii) on the totality of the evidence, the convictions of Abdullah, Reza and Hasan are safe. Their appeals are unanimously dismissed and their convictions and sentence by the courts below are accordingly affirmed; MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 37

(iii) on the totality of the evidence, the conviction of Mahmood is unsafe. The prosecution’s appeal is consequently dismissed and the order of acquittal and discharge by the Court of Appeal is affirmed. Dated: 26th August 2020 signed (TENGKU MAIMUN BINTI TUAN MAT) Chief Justice of the Federal Court, Malaysia Counsel/Solicitors Appeal No. 05(M)-56-02/2019(J) For The Appellant: Teh Poh Teik (Sukhaimi bin Mashud with him) Messrs Teh Poh Teik & Company For The Respondent: Mohd Dusuki bin Mokhtar, Deputy Public Prosecutor (Asmah binti Musa, Deputy Public Prosecutor with him) Attorney General’s Chambers of Malaysia MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 38 Appeal No. 05(M)-205-09/2018(W) For The Appellant: Teh Poh Teik (Sukhaimi bin Mashud with him) Messrs Teh Poh Teik & Company For The Respondent: Mohd Dusuki bin Mokhtar, Deputy Public Prosecutor (Nahra binti Dollah, Deputy Public Prosecutor with him) Attorney General’s Chambers of Malaysia Appeal No. 05(M)-206-09/2018(W) For The Appellant: Kitson Foong (Chew Jee San with him) Messrs Kit & Associates For The Respondent: Hanim binti Mohd Rashid, Deputy Public Prosecutor Attorney General’s Chambers of Malaysia MPRJ 05(M)-56-02/2019(J); 05(M)-205-09/2018(W); 05(M)-206-09/2018(W) & 05(LB)-207-09/2018(W) , 39 Appeal No. 05(LB)-207-09/2018(W) For The Appellant: How May Ling, Deputy Public Prosecutor Attorney General’s Chambers of Malaysia For The Respondent: Kamarul Hisham (Syafiqah binti Sofian with him) Messrs The Chambers of Kamarul Hisham & Hasnal Rezua