1. ) Akahimo / Akanimo (BA-45A-160-12/2022)

RAVENDARAN A/L THEVATHESAN GROUNDS OF JUDGMENT Introduction [1] All of the accused were jointly charged with an offence under the Dangerous Drugs Act 1952 ('DDA') for trafficking in methamphetamine, in conjunction with Section 34 of the Penal Code. The charge drafted by the prosecution against them is as follows: That you, all together, on 24/05/2022, at around 6.00 pm, located in a parking lot in front of Da Chong Qing Steamboat Restaurant, B-22-G & B23-G, Jalan C180/1, Dataran C180/1, Batu 11, Hulu Langat District, in the state of Selangor Darul S/N qqxqdNOB0SNm5qCX/8sdg Ehsan, has found traffic in a dangerous drug, METHAMPHETAMINE (Net Weight: 24,753 grammes). Therefore, you have committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under Section 39B(2) of the same Act and read together with Section 34 of the Penal Code. Punishment: If found guilty of the offence, can be punished to death penalty or life imprisonment and should the punishment given is not death penalty, be punished of whipping of not less than 12 strokes. [2] This court has heard and thoroughly evaluated the testimonies of the prosecution witnesses, examined the presented exhibits, and reviewed the arguments put forth by both parties. At the conclusion of the prosecution's case, it failed to establish a prima facie case against the Second and Third Accused; therefore, they were acquitted and discharged without their defence being called. This conclusion arises from the absence of any evidence indicating that the Second and Third Accused were involved in the trafficking of dangerous drugs. Merely being present at the scene, without any additional evidence, does not constitute a prima facie case. S/N qqxqdNOB0SNm5qCX/8sdg [3] This court has also determined that the prosecution has successfully established a prima facie case against the First and Fourth Accused, that they were jointly engaged in trafficking the dangerous drugs as charged. The prosecution has proven that the First and Fourth Accused were in possession of the dangerous drugs and had knowledge of the substances, which permits the presumption under Section 37 (da) of the DDA to operate. Consequently, the First and Fourth Accused were ordered to enter their defence. [4] At the conclusion of the defence case, after carefully considering the evidence presented by both the First and Fourth Accused, I have determined that the Fourth Accused has successfully established a reasonable doubt in the prosecution's case. Consequently, the Fourth Accused was acquitted and discharged from the charge. [5] In contrast, I found that the First Accused failed to raise any reasonable doubt on the prosecution's case. Therefore, the First Accused was found guilty as charged and sentenced to life imprisonment with 16 strokes of rattan. Brief Facts [6] On 24 May 2022, at approximately 3:00 pm, acting on information received, DSP Mohd Nazri bin Ismail (SP6), Inspector Mohd Rashidi S/N qqxqdNOB0SNm5qCX/8sdg bin Abdul Rahman @ Abdul Rahim (SP7), along with their team from Jabatan Siasatan Jenayah Narkotik, Ibu Pejabat Kontinjen Selangor conducted observations in the parking area in front of Da Chong Qing Steamboat Restaurant, B-22-G & B-23-G, Jalan C180/1, Dataran C180/1, Batu 11, Hulu Langat, Selangor. At the time of the incident, one Mercedes Benz (MB) car, registration number PQG 6626, arrived, followed by another car, a Toyota Vios (TV) with registration number WTM 4877, which both stopped at the same location. [7] Subsequently, SP6 and SP7 observed the First Accused exiting from the front passenger door of the MB and proceeding directly to a Perodua Bezza (PB) registration number ALH 5070 parked nearby. During the observation, SP7 said the driver of the MB, identified as the Fourth Accused, rolled down the window and used a remote control to unlock the adjacent PB. Concurrently, SP6 and SP7 noted the Second Accused exiting from the driver’s side of the TV and standing outside. The Third Accused was also seen leaving the front passenger door of the TV and taking the driver’s seat. [8] The distance between the vehicles was quite close. According to SP6's and SP7’s testimonies, they observed the First Accused exit the MB and approach the PB, where he opened the left rear door S/N qqxqdNOB0SNm5qCX/8sdg and removed a brown box. SP7 stated that the box was in an open state. [9] Consequently, SP6, SP7 and their team executed a raid and successfully apprehended all the Accused despite all of them attempting to flee. As the police approached and introduced themselves as police officers, SP6 and SP7 noticed that the First Accused had released the box he was holding to the ground and attempted to flee but was successfully apprehended by the police after a brief struggle. [10] After being detained, SP6 carried out an inspection of the box and found that it was a brown box labelled "Shipping Mark," which contained ▪ (11) packages of Chinese tea labelled; "Guanyinwang" Inside each of those packages, there was a transparent plastic bag containing a substance suspected to be drugs Syabu. ▪ (3) packages of Chinese tea labelled "Guanyinwang" Inside each of those packages, there was 55 transparent plastic bags containing a substance suspected to be drugs Syabu. ▪ (25) transparent plastic bag containing a substance suspected to be drugs Syabu. S/N qqxqdNOB0SNm5qCX/8sdg [11] Further examination of the MB, revealed one (1) remote control for the PB located in the storage compartment between the driver and the front passenger. This remote control was subsequently inspected and confirmed to be the key to the PB where the drug was found. [12] The items were sent to the Malaysian Department of Chemistry, and based on the analysis results, Dr Saravana Kumar a/l Jayaram (SP5) confirms that the drug is Methamphetamine, weighing 24,753 grams. The Court’s Duty At The End Of The Prosecution’s Case [13] The law regarding the prosecution’s burden of proof at the end of its case is well established. Section 180 of the Criminal Procedure Code provides: Procedure after conclusion of case for prosecution 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. S/N qqxqdNOB0SNm5qCX/8sdg

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.

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 offence which if unrebutted or unexplained would warrant a conviction. [14] At the end of the prosecution's case, it is well established that the standard of proof required of the prosecution is to establish a prima facie case. A prima facie case is one that is sufficiently strong for the accused to be called upon to answer. After conducting a maximum evaluation of the evidence, if the court concludes that a prima facie case has been established, it must call for the defence. If the accused then elects to remain silent, the court must proceed to convict him. This implies that the evidence presented must be of such a nature that it can only be overturned by evidence in rebuttal. (Refer to Balachandran v. PP [2005] 1 CLJ 85 FC; Looi Kow Chai & Anor v. Pendakwa Raya [2003] 1 CLJ 734 FC; PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457 FC) S/N qqxqdNOB0SNm5qCX/8sdg Whether The Prosecution Has Proven Its Case [15] The elements of the charge under Section 39B (1) (a) of the DDA that must be proven by the prosecution are as follows:

that the drug is a dangerous drug within the definition of the Dangerous Drugs Act 1952;

(ii) all the accused were in possession of the drug;

(iii) they were trafficking in the drug; and

(iv) they did so in furtherance of a common intention.

that the drug is a dangerous drug within the definition of the Dangerous Drugs Act 1952; [16] In this case, there is unequivocal evidence that the seized item is methamphetamine, weighing 24,753 grams, which is defined as a dangerous drug under Section 2 of the First Schedule of the DDA. This has been substantiated by the testimony of the chemist and the Chemist Report, which has been submitted and marked as Exhibit P14. Break in Chain of Evidence [17] Counsel for the First Accused contended that there was a significant break in the chain of evidence concerning the identity of the drug. This break occurred when the prosecution failed to account for the drug's whereabouts from 15:50 hours on 27 May 2022, when the S/N qqxqdNOB0SNm5qCX/8sdg Investigating Officer (SP10) removed the items from storage, until 31 May 2022, when the drug was actually sent to the Chemist. There was also no explanation provided regarding the press conference held about the drug. Furthermore, it was argued that the absence of the brown box labelled "Shipping Mark,", which was seized on the date of the incident, is fatal and significantly detrimental to the prosecution's case. [18] The prosecution argued that there was no break in the chain of evidence regarding the drug from the time it was seized until it was sent to the Chemist for analysis. They submitted that a comprehensive explanation had been provided by the witnesses regarding the chain of custody of the drug. [19] Concerning the whereabouts of the drug from May 27, 2022, until it was sent to the chemist on May 31, 2022, SP10 clarified that after retrieving the exhibits from storage, he proceeded to conduct a press conference during this period. He emphasized that the drug remained under his close supervision until it was dispatched to the chemist. Throughout cross-examination, he consistently denied any mixing of evidence between this case and others. He asserted that the drug presented at the press conference was exclusively related to this case. I accept his explanation as credible, as the hearing has established that the seized drug is indeed the same substance S/N qqxqdNOB0SNm5qCX/8sdg seized from the First Accused. This is the same drug that was examined by the chemist and the same one for which all the Accused have been charged. I conclude that this does not create a reasonable doubt in the prosecution's case. There was no break in the chain of evidence as the drug was positively identified by the prosecution witnesses, particularly SP5, SP6 and SP10, based on the markings made on it as well as by SP7, based on the photographs P7 (1) – (8). I refer to the Court of Appeal’s case Gunalan Ramachandran v PP [2004] 4 CLJ 551 as decided by Abdul Hamid Mohamad & Denis Ong JJCA: [6] In a drug trafficking case, the chain of evidence is more important for the period from the time of recovery until the completion of the analysis by the chemist. Even then it does not necessarily mean that if the exhibit is passed from one person to another, every one of them must be called to give evidence of the handing over from one person to another and if there is a break, even for one day, the case falls. There should be no confusion between what has to be proved and the method of proving it. What has to be proved is that it is the substance that was recovered that was analysed by the chemist and found to be heroin, cannabis etc, and it is for the trafficking of that same substance that the accused is charged S/N qqxqdNOB0SNm5qCX/8sdg with. The proof of the chain of evidence is only a method of proving that fact. The fact that there is a gap does not necessarily mean that that fact is not proved. It depends on the facts and circumstances of each case. (pp 568 g-h & 569 a-c) [20] Regarding the brown box labelled “Shipping Mark” that was seized at the scene and subsequently replaced by SP10 at the request of SP5, clarification has been provided by both SP5 and SP10. According to the witnesses, the brown box was worn and damaged, leading SP5 to discard it. This is evident from the photograph of the box marked P7 (1). In court, both witnesses firmly refuted any claims of an exchange or confusion regarding the seized drug. Their explanation was reasonable, and the absence of the brown box did not undermine the prosecution's case, as the labelling of the seized drug was orderly and unambiguous. The seized items were meticulously documented in both the Borang Senarai Geledah P29

– (10) and Borang Serah Terima Barang Kes P30 (1) – (4). SP6, SP7, and SP10 provided detailed accounts confirming that the exhibit was indeed seized and properly marked. All drug evidence bore the markings of SP6 and SP10 and was identified by both witnesses in conjunction with SP5. Additionally, the witnesses have S/N qqxqdNOB0SNm5qCX/8sdg identified the brown box labelled “Shipping Mark” through the photograph in P7.

(ii) all the accused were in possession of the drug

(iii) they were trafficking in the drug [21] As mentioned before, this court has acquitted and discharged the Second and Third Accused from the charge without their defence being called after finding that the prosecution failed to establish a prima facie case against them. At the same time, this court found that the prosecution had successfully established a prima facie case against the First and Fourth Accused and called them to enter their defence. [22] The court found that the prosecution has proven that the First and Fourth Accused had in their possession the dangerous drug and had knowledge of the drug, which allows for the presumption under Section 37 (da) of the Dangerous Drugs Act to apply. ‘Found’ in possession means an affirmative finding of possession by the court based on adduced evidence. Refer to the Federal Court case of Alma Nudo Atenza v. PP & Another Appeal [2019] 5 CLJ 780, The presumption of trafficking under this section can only operate when the prosecution successfully proves that both the Accused are in possession of the dangerous drug Methamphetamine in excess of 50 grams. The proof of 'possession' means that the prosecution S/N qqxqdNOB0SNm5qCX/8sdg must prove both the physical and mental elements (knowledge) of the Accused regarding the dangerous drug Methamphetamine. Section 37 (da) DDA states as follows:- (da) any person who is found in possession of- …

(xvi) 50 grammes or more in weight of Methamphetamine; … 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; [23] The dangerous drug is said to be in the possession of both the Accused when they are in a position, whether physically or mentally, that enables them to deal with it as an owner, to the exclusion of all others. I refer to the case of Chan Pean Leon v PP (1956) 22 MLJ 237, where Thomson J elucidated the concept of ‘possession’ as follows: "Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th Edn., p. 304): "A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, S/N qqxqdNOB0SNm5qCX/8sdg and when the circumstances are such that he may be presumed to intend to do so in case of need." To put it otherwise, there is a physical element and a mental element, which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. [24] To establish the mental element or intention, one must consider the surrounding circumstances of the case. In Chan Pean Leon (supra), Thomson J further explained: Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. [25] Through the testimonies of the prosecution witnesses, particularly SP6 and SP7, it has been established that the Fourth Accused rolled down the window and used a remote control to unlock the adjacent PB. Subsequently, the First Accused exited the MB and approached S/N qqxqdNOB0SNm5qCX/8sdg the PB, where he opened the left rear door and removed a brown box containing drugs that was in an open state. When SP6 and his team executed a raid, the First Accused dropped the box he was holding to the ground and attempted to flee; however, he was successfully apprehended by the police after a brief struggle. Meanwhile, the Fourth Accused also attempted to escape, resulting in a collision with the front left side of the PB and the door of the TV. This incident caused damage to the left front bumper of the PB, the driver's door, and the rear passenger door on the right side of the TV, as well as damage to both the front and rear bumpers of the MB. Subsequently, The PB’s remote control was found in the storage compartment between the driver and the front passenger of the MB. [26] Through this evidence, I find that the First Accused had in his possession and had knowledge of the drug in question when he lifted out the box containing the drug from the PB and released it to the ground upon realizing that there was a raid by the police and tried to flee. The conduct of the First Accused is admissible to show that he has knowledge of the drug. There was no explanation from the First Accused during the cross-examination of SP6 and SP7 as to why he dropped the box and attempted to flee from the scene. S/N qqxqdNOB0SNm5qCX/8sdg [27] The same applies to the actions of the Fourth Accused, who rolled down the window of the MB and used the remote key in his hand to unlock the PB, thereby allowing the First Accused to retrieve the box containing the drug. This indicates that he also possessed the aforementioned drug. Furthermore, the Fourth Accused's attempt to flee the scene, which caused damage to the surrounding vehicles, underscores his awareness of the illicit substances involved. During the cross-examination of SP6 and SP7, no explanation was given as to why he tried to flee the scene. I refer to the Federal Court’s case of Parlan Dadeh v. PP [2009] 1 CLJ 717, where it was decided: [36] The law relating to evidence of conduct is thus patent. If there is no evidence to show that the conduct is influenced by any fact in issue or relevant fact as required by s. 8 then it is not admissible as it would then be an equivocal act justifying inferences favourable to the accused being drawn. If it satisfies the requirement of s. 8 it is admissible. It must be observed that the degree of proof required to establish evidence of conduct would depend on the nature of the conduct. Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like the accused looking stunned, nervous, scared or S/N qqxqdNOB0SNm5qCX/8sdg frightened is very often a matter of perception and more detailed evidence may be required. Once admitted the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it inadmissible. The onus is on the accused to explain his conduct pursuant to s.

Such explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstance (see R v. Stephenson [1904] 68 JP 524). The onus may be discharged even in the course of the case for the prosecution, for example, by way of cross-examination of relevant witnesses. If not so done it can be discharged only at the defence stage. However, the evidence admissible under the section must be confined to what is necessary for the purposes enumerated [28] Moreover, the substance in question weighs a net 24,753 grammes and was located in a box lifted by the First Accused. In this situation, it is evident that the Accused was aware that there was something heavy inside the box, especially since it was in an open state. It would have taken only a very brief moment for the First Accused to inspect and look inside the box. It is implausible to assert that the Accused knew he was lifting the box but was unaware of its contents. I refer to the case of Warner v. Metropolitan Police S/N qqxqdNOB0SNm5qCX/8sdg Commissioner [1968] 2 ALL ER 356 where it has been decided as follows: If, however, someone deliberately assumes control of some package or container, then I would think that he is in possession of it. If he deliberately so assumes control knowing that it has contents, he would also be in possession of the contents. I cannot think that it would be rational to hold that someone who is in possession of a box which he knows to have things in it is in possession of the box but not in possession of the things in it. If he had been misinformed or misled as to the nature of the contents, or if he had made a wrong surmise as to them, it seems to me that he would nevertheless be in possession of them. " [29] I am also guided by the Federal Court in the case of PP v. Abdul Rahman Akif [2007] 4 CLJ 337, which cited the case of Warner v. Metropolitan Police Commissioner (supra) and concluded: [24] Applying the observations set out in the authorities cited above to the facts in the present case, the irresistible inference that may be drawn in the circumstances is that the respondent all along knew about the drug found in the car. The fact that they were found hidden under the seats of the car and wrapped in Chinese newspaper would not assist him to S/N qqxqdNOB0SNm5qCX/8sdg negate such an inference. From the evidence of PW5 it is clear that little effort was required to uncover what was contained in the 3 packages. Therefore, we are of the view that on the facts and in the circumstances of this case the learned trial judge, properly directed on the law, would have come to the finding that prima facie the respondent had possession of the drug independent of the statutory presumption under s. 37(d) of the Act. [30] I accept the testimony of SP7, who stated that the box was in an open state when it was lifted by the First Accused. This testimony arose during cross-examination by the First Accused’s own counsel and remained consistent throughout SP7's testimony. Concerning the testimony from SP6, which does not state the same, I note that the same question was never directed at this witness. Consequently, it cannot be said that there is a contradiction between the evidence provided by SP6 and SP7. Meanwhile, concerning SP10's testimony, which agreed with the First Accused's defence counsel's assertion that the box was in a closed condition, I found SP10's account on this matter to be less credible than that of SP7. SP7 was present at the scene and directly observed the situation involving the MB, the PB and the First Accused, whereas SP10 was not present during the incident and, therefore, lacked knowledge of S/N qqxqdNOB0SNm5qCX/8sdg the specific details that transpired. Furthermore, when he agreed with the suggestion made by the defence counsel of the First Accused, he did not reference any statements made by the witnesses under Section 112 of the Criminal Procedure Code. Instead, he based his response solely on his memory. Momentary Custody And Control [31] Counsel for the First Accused asserts that the First Accused had only "momentary custody and control" over the box containing the dangerous drug. Consequently, they claim that the elements of custody, control, and possession cannot be established. However, as I have previously mentioned, this is not a situation in which the First Accused merely held the box containing the drug for a brief period. Rather, the First Accused actively approached the PB car, which housed the drug, and retrieved the box, which was in an open state, from the vehicle. He also tried to flee the scene upon realizing the police presence. Therefore, it cannot be said that the First Accused had only momentary custody and control of the drug; instead, it is evident that the First Accused was actively engaged in dealing with the drug. [32] This case can be distinguished from the case referred to by the First Accused’s counsel, where in the case of Simon Savarimuthu Thevarajah v. PP [2020] 5 CLJ 105, the accused was handed over S/N qqxqdNOB0SNm5qCX/8sdg a box containing the offensive drugs by a police witness acting as a representative of a courier service. The Court of Appeal held that at the time the box was delivered to the accused and when he was arrested, he was not afforded the opportunity to open and examine the contents of the box. Therefore, the court in that case decided that the mere fact that the accused had momentary custody or control of the box prior to his arrest does not establish that he had possession and, consequently, knowledge of its contents. [33] Similarly, the case of PP v. Tony Omorodion Ogbion [2021] MLRHU 640 also involves drugs that were delivered to an address and accepted by the accused. The drugs were found in plastic packages sealed and cemented in ceramic horse statutes and kept in seven big wooden crates. The bill of lading stated that the consignee was "Alex Jo", not the accused. There was also a handphone number stated on the bill of lading, which did not belong to the accused. According to the witness who delivered the seven crates, the individual he spoke to on the phone informed him that someone would be there to receive the wooden crates, but that person he spoke to was not the accused. Consequently, the High Court ruled that the accused's temporary custody and control of the wooden crates did not equate to knowledge of the drugs. S/N qqxqdNOB0SNm5qCX/8sdg [34] In essence, I found that the prosecution has successfully proven the ingredient of 'possession,' which includes both the physical and mental elements, indicating that the First and Fourth Accused had in their possession 24,753 grammes of Methamphetamine and were aware that they possessed the dangerous drug. Therefore, the presumption under Section 37 (da) of the DDA comes into operation. Given that the quantity of the drug exceeds a weight of 50 grams, the First and Fourth Accused are deemed, until proven otherwise, to have trafficked in the dangerous drug Methamphetamine.

(iv) they did so in furtherance of a common intention. [35] To prove a common intention between the First and the Fourth Accused, the prosecution must demonstrate the connection or nexus between them to show that they had a shared intent to traffic in the drug. I refer to the case of Namasiyiam Doraisamy v Public Prosecutor [1987] CLJ Rep 241, where Syed Agil Barakbah SCJ states: In law, common intention requires a prior meeting of the minds and presupposes some prior concert. Proof of holding the same intention or of sharing some other intention, is not enough. There must be proved either by direct or by circumstantial evidence that there was (a) a common intention S/N qqxqdNOB0SNm5qCX/8sdg to commit the very offence of which the accused persons are sought to be convicted and (b) participation in the commission of the intended offence in furtherance of that common intention. [36] The connection or nexus can be observed through the testimonies of the prosecution witnesses, which illustrate the interrelationship between the First and Fourth Accused. The Fourth Accused was the driver of the MB, and he drove the vehicle to the scene together with the First Accused. At that time, the First Accused stopped and parked the MB close to the PB, which was already at the scene. The Fourth Accused used a remote control to unlock the door of the PB. Simultaneously, the First Accused exited the MB and proceeded to the left rear passenger side of the PB, where he retrieved a box containing the drug. During the raid, the First and Fourth Accused attempted to flee. The actions of the First Accused, who sought to escape, and the Fourth Accused, who aggressively rammed into surrounding vehicles, render it implausible for them to have been unaware of the drug's presence in the brown box. Upon their detention, both the First and Fourth Accused exhibited signs of anxiety and fear. Notably, a remote control for the PB was later recovered from the MB driven by the Fourth Accused. These facts collectively indicate that both Accused were cognizant of the drug's S/N qqxqdNOB0SNm5qCX/8sdg existence. Therefore, the prosecution has successfully established the element of common intention as outlined in Section 34 of the Penal Code. The non-existence of individuals by the name of Farid and Kwan [37] The defence contended that two individuals were involved in this incident, both of whom were allegedly agent provocateurs from the Narcotics Division of the Selangor Contingent Police Headquarters in Shah Alam. However, the testimonies of SP6, SP7 and SP10 clearly and consistently refute the existence and presence of these individuals, namely Farid and Kwan. Therefore, I conclude that the allegations lack a solid foundation, as there is no evidence to support the existence of Farid and Kwan. CCTV [38] The prosecution has called witnesses SP6, SP7 and SP10, confirming the existence of CCTV footage from the scene of the incident. However, it is important to note that the CCTV did not clearly capture the area where the accused were apprehended. Consequently, I find that this footage does not assist either the prosecution or the defence, as it is recorded from a considerable distance away from the actual scene. While CCTV evidence, if deemed admissible, can serve as corroborative evidence, in this S/N qqxqdNOB0SNm5qCX/8sdg instance, I conclude that a prima facie case is established, even in the absence of this footage. [39] In conclusion, after conducting a maximum evaluation of the evidence presented by the prosecution and carefully examining the arguments from both parties, I find that the prosecution has successfully established a prima facie case against the First and Fourth Accused for trafficking in the dangerous drug Methamphetamine (Net Weight: 24,753 grammes) by invoking the presumption under Section 37(da) of the DDA. Therefore, they are required to enter their defence in response to the charges against them. Defence Case for The First Accused [40] Other than calling Mr Haziq Abdullah Bin Abdul Aziz (SD2), a lawyer who did research on news portals in Malaysia that reported the press conference held on this case, as his witness, the First Accused chose to give a sworn statement in his defence. He testified that he had been searching for a job in Cambodia but was unsuccessful due to the challenges posed by the Covid-19 pandemic. During this difficult time, he had very little money when he received a call from Farid, who informed him of a job opportunity in Malaysia that promised good earnings and the means to sustain himself. Farid explained that he and a friend named Kwan were S/N qqxqdNOB0SNm5qCX/8sdg currently engaged in money exchange transactions and offered the First Accused a position as an intermediary between the exchangers. He would be compensated between RM10,000 and RM15,000 for each transaction. Farid elaborated that in money exchange dealings, both the buyer and the seller prefer to keep their identities confidential, which is why a middle person is necessary to facilitate the transaction. The First Accused felt that this was an excellent opportunity to earn substantial money without the need for a full-time job. [41] After coming to Malaysia, he met Farid and Kwan quite often to discuss his job scope. Basically, what Farid and Kwan want is simple: they don't want their identity to be revealed because they themselves are acting as an agent for another party, and when they receive the money from a third party, the First Accused has to take the money and pass it to the money changer. The identity of Farid and Kwan is not to be revealed in these transactions as they are afraid they will be caught by the authorities as they are local Malaysians, so they want a foreigner to be the middle person. [42] On the day of the incident, the First Accused was driven by Farid and Kwan in a black-tinted BMW and stopped in front of a Chinese restaurant where there was a silver car (the PB) right in front of the restaurant. They then showed him a brown box inside the PB and S/N qqxqdNOB0SNm5qCX/8sdg told him that it had money in it and needed to be given to the money changers. Out of curiosity, the First Accused asked if he could take a look inside the box. However, he was stopped and told that the box was sealed and taped and that opening it would require breaking the tape. He was then instructed to simply follow their orders to ensure that the commission was paid once the job was completed. [43] They parked the BMW approximately 100 to 200 meters away from the silver car and waited for the money changer to arrive. After about 20 minutes, Farid informed the First Accused that the money changer had arrived in the MB. Using the First Accused's phone, Farid called the money changer and instructed him to approach the MB to verify that the Indian man inside was indeed the money changer. Once this was confirmed, Farid and Kwan directed him to go to the PB and retrieve the brown box they had shown him earlier. They insisted that he bring the box to them first before handing it over to the money changers, as they intended to place a "half-torn note" on the box prior to the exchange. [44] As the First Accused approached the PB and opened the back door, he lifted the brown box and took a few steps toward the black BMW. Suddenly, the area was ambushed by more than ten individuals, and chaos erupted as numerous cars collided with one another. The S/N qqxqdNOB0SNm5qCX/8sdg First Accused was shocked and recalled that ten men came rushing toward him, and in his fear, he dropped the box onto the ground. He carried the box only for 10 seconds. Believing that they were attempting to rob him, he chose not to resist or fight back. He claimed that he never tried to flee. [45] The men identified themselves as police officers and said to him that he was carrying a box filled with drugs. He told the officers that he was merely a middleman and that the box was intended for a money exchange. He also pointed out a black BMW where Farid and Kwan were inside. The police responded affirmatively, stating that they were already aware of Farid and Kwan, as those individuals were undercover officers working alongside them. [46] The First Accused stated that he did not know the Second, Third, and Fourth Accused, asserting that he had no involvement with them. He further contended that the first time he saw the key to the Perodua Bezza was in court. He denied that he had ever been in the MB. Defence Case for the Fourth Accused [47] The Fourth Accused testified under oath that the First Accused had contacted him to arrange an exchange of 35,000 Baht for Malaysian Ringgit, as the Fourth Accused was indeed engaged in the money exchange business. The First Accused instructed him to meet at Alif S/N qqxqdNOB0SNm5qCX/8sdg Bistro Restaurant, located in Cheras Selatan. For safety reasons, the Fourth Accused sought the assistance of the Second and Third Accused. He then drove to Alif Bistro, arriving around 6:05 PM in the MB, while the Second and Third Accused travelled in the TV. Upon arriving at Alif Bistro, he observed the First Accused standing and holding a car key, which he identified as the key for the PB, as shown in photograph P18. The First Accused then approached the MB, and the Fourth Accused invited him to enter. As he did so, he continued to hold the black car key. [48] At that moment, his wife called, and he answered the call. The First Accused instructed him to drive a little further ahead and then told him to stop. While he was still engaged in conversation with his wife, the Second Accused approached the left side of the car, where the First Accused was seated. The Fourth Accused rolled down the windows on both sides of the car and introduced the Second Accused to the First Accused for the purpose of exchanging money from Baht to Ringgit. Throughout this exchange, he continued his conversation with his wife and was also vaping with a black cover vape. While vaping, he extended his hand holding the vape outside the car. [49] The Fourth Accused further testified that he observed the First Accused pressing the button on the black car key he had been S/N qqxqdNOB0SNm5qCX/8sdg holding earlier. This action was also witnessed by the Second Accused. As the First Accused exited the vehicle, the Fourth Accused was still engaged in conversation with his wife about his sister, who was critically ill with cancer, while simultaneously vaping from a black device, which he held in his right hand. Within moments, when the First Accused stepped out, he was unexpectedly surrounded by a crowd. At that moment, his car was blocked, and the TV was also obstructed. Feeling panic for his safety, he attempted to flee the scene. This is due to the presence of numerous men dressed in plain clothes, leading him to believe they intended to rob him. The Fourth Accused stated that he had only met the First Accused on the day of the incident and denied any knowledge of the drug found in the box. He also testified that he did not realise that the First Accused had left the black car keys in his vehicle, as he was preoccupied with his conversation and vaping. [50] The Fourth Accused called the Second and Third Accused as his witnesses, together with a person named Tan Long Hooi, who was at the scene. All of these witnesses support and confirm the testimony provided by the Fourth Accused. S/N qqxqdNOB0SNm5qCX/8sdg The Court's Duties at the Conclusion of the Defense Case [51] Section 182A of the Criminal Procedure Code stipulates that at the conclusion of the defence, the Court must consider all the evidence presented and determine whether the prosecution has proven its case beyond reasonable doubt. I refer to the Federal Court case of Balachandran v. PP (supra); the standard of proof beyond reasonable doubt has two aspects: the legal burden on the prosecution to prove its case beyond reasonable doubt, while the evidential burden of proof on the part of the Accused to raise a reasonable doubt. The case states: Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s. 182A(1) of the Criminal Procedure Code. [52] In this case, the prosecution can certainly rely on the presumption provided by law to establish the essential elements of the charge. In S/N qqxqdNOB0SNm5qCX/8sdg this situation, the particular burden of proof, as opposed to the general burden of proof, shifts to the defence to rebut that presumption on the balance of probabilities, which from the defence the defence's perspective, is heavier than the burden of casting a reasonable doubt, but it is certainly lighter than the burden of the prosecution to prove beyond reasonable doubt. This is in accordance with the decision made by the Supreme Court in the case of Mohamad Radhi Yaakob v. Public Prosecutor [1991] 1 CLJ Rep 311: "It is a well established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case. In the course of the prosecution case, the prosecution may of course rely on available statutory presumptions to prove one or more of the essential ingredients of the charge. When that occurs, the particular burden of proof as opposed to the general burden, shifts to the defence to rebut such presumptions on the balance of S/N qqxqdNOB0SNm5qCX/8sdg probabilities which from the defence point of view is heavier than the burden of casting a reasonable doubt, but it is certainly lighter than the burden of the prosecution to prove beyond reasonable doubt. [53] What does reasonable doubt mean? It has been explained in the case of Public Prosecutor v. Saimin & Ors [1971] CLJU 115. According to Judge Sharma, reasonable doubt is the uncertainty that causes you to hesitate about the truth of the conclusion you have reached. The case states: It has again been said that "reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there.' Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence." S/N qqxqdNOB0SNm5qCX/8sdg Whether The Prosecution Has Successfully Proven Its Case Beyond Reasonable Doubt • Fourth Accused [54] Regarding the Fourth Accused, the court find that the defence presented by the Fourth Accused has raised reasonable doubt. Consequently, the Fourth Accused is acquitted and discharged. The primary evidence linking the Fourth Accused to the drug found in the PB is the remote key discovered beside him in the MB. SP7 testified that he saw the Fourth Accused pressing the key to unlock the PB. However, the Fourth Accused testified that he did not know the First Accused prior to the incident and only interacted with him for the purpose of money-changing. He denied ever pressing the button on the remote key of the PB, asserting instead that he was on the phone with his wife and vaping throughout the conversation, with his hand holding the black vape protruding outside the car. His account was corroborated by the testimonies of the Second and Third Accused. Aside from that, the statement indicating that the Fourth Accused pressed the PB’s remote key only came from SP7 and not from SP6. There is a possibility that SP7 mistakenly thought that the black vape held by the First Accused was PB's key which led me to decide that there is doubt on this issue. The court finds that S/N qqxqdNOB0SNm5qCX/8sdg the prosecution's reliance solely on this evidence to establish the Fourth Accused's connection to the drug is inadequate. This evidence raises a reasonable doubt to the prosecution's case, as it is insufficient to establish a definitive link between the Fourth Accused and the drug. • First Accused [55] Regarding the First Accused, the court has thoroughly assessed the evidence presented both at the defence and the prosecution stages. The court found that the prosecution has proven its case beyond reasonable doubt that the First Accused has trafficked in a dangerous drug, namely Methamphetamine, weighing 24,753 grammes, which constitutes an offence under Section 39B(1)(a) of the DDA and is punishable under Section 39B(2) of the same Act. [56] The court found that the First Accused failed to rebut the presumption under Section 37 (da) of the DDA on the balance of probabilities that the drug found in the First Accused's possession, specifically in the brown box he was carrying, was intended for trafficking, as the quantity was substantial, weighing 24,753 grammes, which exceeds the statutory limit of 50 grams of Methamphetamine. S/N qqxqdNOB0SNm5qCX/8sdg [57] I find that the evidence presented by the First Accused is nothing more than a denial and does not effectively raise any reasonable doubt to the prosecution's case. The First Accused claimed that he was informed by Farid that the box contained money intended for the money changer while asserting that he had no knowledge of the drug contained within. He admitted to lifting the box, closing the PB’s door with his body, and moving several steps forward toward the alleged black BMW. However, upon examining the image in P7(1), which depicts the condition of the box and its contents at the time of the seizure, it is evident that the box is large enough to accommodate a net weight of 39,996.1 grams of substances (refer to Chemist Report (P14) regarding the net weight of all the substances). When he lifted the box, he surely realised that it was very heavy, indicating that it did not contain money but rather substances like drugs. Furthermore, when the box was seized, it was found to be open. Before the First Accused lifted the box, he must have seen and known that its contents were not money. His action of dropping the box and attempting to flee the scene is consistent with his knowledge of the drug. Additionally, his explanation that he did not try to flee was merely a bare assertion, lacking reasonable and full details. Therefore, his assertion that the box contained money is difficult to believe. S/N qqxqdNOB0SNm5qCX/8sdg [58] The First Accused denied having been in the MB with the Fourth Accused and also claimed ignorance regarding the PB’s remote key found in the MB. However, he did acknowledge having seen the brown box inside the PB prior to his meeting with the Fourth Accused. Furthermore, he admitted to approaching the PB, opening the door, and lifting the brown box. His own testimony indicates that he had access to the PB but failed to clarify how he managed to gain that access. It is important to note that the First Accused's evidence is inconsistent with the testimonies of the prosecution witnesses, particularly the raiding officers SP6 and SP7. Given this context, I find myself more inclined to believe the accounts provided by the prosecution witnesses, specifically SP6 and SP7, who observed the First Accused exiting the MB's car and subsequently approaching and opening the PB's car. I also find their explanation regarding the source of the key to the PB, which was obtained from the MB, to be credible. [59] The Fourth Accused testified that during his initial meeting with the First Accused to arrange an exchange of Baht for Ringgit, he observed the First Accused holding the key to the PB. Subsequently, he invited the First Accused into his car and drove to the scene in question. There, he witnessed the First Accused unlock the PB using the key he was holding. The Fourth Accused saw the S/N qqxqdNOB0SNm5qCX/8sdg First Accused approach the PB, open the door, and retrieve a brown box, which he described as being in an open state. These accounts are corroborated by the testimonies of the Second and Third Accused, who were also at the scene. Although the Fourth Accused did not contest the fact that the PB’s remote key was seized from the MB, he asserted that it was the First Accused who had left the key in the MB. [60] In his testimony, the First Accused attributed blame to two individuals, Farid and Kwan. He claimed that they were present at the scene in a black-tinted BMW. Furthermore, he asserted that after his arrest, Farid and Kwan engaged in a conversation with him. He alleged that they were, in fact, undercover officers working alongside the raiding team. However, these claims were categorically denied by the prosecution’s witnesses, who testified that such individuals did not exist. During the defence case, it became evident that the First Accused failed to substantiate his assertions that Farid and Kwan were present at the scene and had any connection to the drug found inside the brown box. Additionally, the Second, Third and Fourth Accused testified that they had neither seen a black-tinted BMW at the scene nor observed the First Accused conversing with the alleged individuals. Notably, the evidence presented by the Fourth Accused and his witnesses aligns S/N qqxqdNOB0SNm5qCX/8sdg with the testimonies of the prosecution's witnesses, thereby reinforcing the prosecution's case. Their evidence is admissible and should be given weight, as it does not place them in the role of an accomplice. Furthermore, the rule of practice concerning the corroboration of accomplices does not apply in this instance, as it is relevant only to witnesses adduced by the prosecution. I refer to the case of PP v. Mohd Amin Mohd Razali & Ors [2002] 5 CLJ 281, which states: It is my finding that based on the above relevant facts adduced through the evidence of OKT2 it has been shown that it has not only implicated OKT2 in the commission of the offence but his evidence had also implicated the other accused persons who were present at Bukit Jenalik during the said relevant period. Almost all the evidence given by OKT2 in actual fact had confirmed and strengthened the prosecution case on many aspects of the case beginning from the preparation stage done by the members of the Al-Ma'unah group until they were arrested and detained at Bukit Jenalik. On the law when several accused are tried jointly and one of them gives evidence on his own behalf incriminating a co-accused, it has been laid down that the accused who has given the incriminating evidence is not placed in the position S/N qqxqdNOB0SNm5qCX/8sdg of an accomplice, nor does the rule of practice with regard to the corroboration of an accomplice apply to such a case, for that rule applies only to witnesses called for the prosecution. The case of Public Prosecutor v. Yeoh Teck Chye [1981] CLJU 93; [1981] 1 LNS 93; [1981] 2 MLJ 176 can be cited as an authority for the said proposition wherein his Lordship Wan Suleiman FJ in delivering the judgment of the Federal Court at pp. 181-182 had this to say: It is well settled that where the prisoners are tried jointly, and one of them gives evidence on his own behalf incriminating a co-prisoner, the prisoner who has given incriminating evidence is not placed in the position of an accomplice, nor does the rule of practice with regard to the corroboration of an accomplice apply to such a case for the rule applies only to witnesses called for the prosecution (See R v. Barnes & Richards 27 Cr. Appeal R 154). On the same point even in s. 30 of Evidence Act in substance it, says the same thing, whereby the court may take into account such incriminating evidence against a co-accused. Therefore in my view it is safe for the court to put weight to the S/N qqxqdNOB0SNm5qCX/8sdg evidence of OKT2 which incriminate other co-accused persons in this case. Statutory Declaration Signed by The First Accused (D46) [61] Concerning the Statutory Declaration D46, which was signed by the First Accused prior to the commencement of the trial and subsequently tendered by the Fourth Accused’s counsel during the defence stage, I choose to disregard this exhibit. It asserts that the First Accused wished to plead guilty; however, in the proceedings before me, the First Accused has not entered a plea of guilty and has explicitly requested to be tried. It is imperative that the First Accused is afforded a fair trial, free from the influence of such a sworn declaration. Conclusion [62] At the end of the defence case, the Court found that the prosecution had successfully proven its case beyond reasonable doubt that the First Accused possessed and was aware that he was in possession of the dangerous drug known as Methamphetamine. The Court also determined that the First Accused is deemed to have trafficked in the dangerous drug based on the quantity exceeding the statutory weight of 50 grams, as stipulated in Section 37 (da) of the DDA. Furthermore, the Court found that the defence had failed to raise S/N qqxqdNOB0SNm5qCX/8sdg any reasonable doubt in the prosecution's case and to rebut the presumption of trafficking. Consequently, the First Accused is convicted of the charge against him. Sentence [63] Counsel for the First Accused submitted that the First Accused is 46 years old and has never been married. Previously, he worked as a nightclub manager. His mother is 70 years old, and he has two siblings, aged 45 and 41. He suffers from elephantiasis, which makes it difficult for him to walk. This is the first case involving the First Accused, as there are no prior records. The First Accused requested the court's discretion to impose a minimum sentence of imprisonment rather than the death penalty. [64] The prosecution urged that the death penalty be imposed against the First Accused, saying that this is a serious crime, the First Accused is a foreign national, and the quantity of drugs involved is substantial, with a significant amount seized. The prosecution requested a deterrent sentence, emphasizing that as a foreign national, he should not be allowed to commit offences with impunity. [65] I have carefully considered the arguments presented by both sides and have prioritised the public interest in determining the appropriate sentence for the First Accused, particularly given that drugs represent a significant threat to our nation. Additionally, the S/N qqxqdNOB0SNm5qCX/8sdg Defendant's background, being 46 years old and suffering from elephantiasis, along with having no prior criminal record, has been acknowledged by the Court as a mitigating factor. Consequently, I sentenced the First Accused to life imprisonment from the date of his arrest, along with 16 strokes of the rattan as an alternative to the death penalty. The Court has opted against imposing a minimum sentence of rattan due to the substantial quantity of drugs involved, specifically a net weight of 24,753 grams of methamphetamine. DATED 20 JUNE 2024 ROSZIANAYATI BINTI AHMAD Judicial Commissioner High Court of Malaya Shah Alam, Selangor Darul Ehsan S/N qqxqdNOB0SNm5qCX/8sdg Counsels: For the prosecution Mohd Mukhzany Fariz Deputy Public Prosecutor Kamar Peguam Negara Aras 5, No 45,Lot 4G7, Presint 4, Persiaran Perdana 62100 Putrajaya For the 1st Accused Sivahnanthan Ragava Chambers Of Sivahnanthan Ragava Tingkat 15, Dpulze, Lingkaran Cyber Point Timur, Cyber 12, 63000 Cyberjaya, Selangor For the 2nd, 3rd and 4th Accused S. Selvam with him Aman Shah Tetuan Selvam Shanmugam & Partners No.10-09, Office Suite, 10th Floor, Kompleks Mutiara, Batu 3 1/2, Jalan Ipoh, Kuala Lumpur. S/N qqxqdNOB0SNm5qCX/8sdg