Aniell Sabhneni (BA-45A-54-03/2022)

The accused persons were charged with the following charge:

1 The first charge was as follows: Bahawa kamu bersama-sama pada 25/6/2021, jam lebih kurang 10.00 malam, bertempat di rumah No 1, Jalan Diamond 13, 43500 Semenyih, Dalam Daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan, bagi mencapai niat bersama, telah didapati mengedar dadah berbahaya iaitu Cannabis seberat 315.3 gram, dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan. Hukuman: Hendaklah dihukum gantung mati atau dihukum dengan pemenjaraan seumur hidup dan hendaklah, sekiranya tidak dihukum gantung mati, dihukum dengan sebatan tidak kurang daripada 12 sebatan.

1.2 The second charge was as follows: Bahawa kamu bersama-sama pada 25/6/2021, jam lebih kurang 10.00 malam, bertempat di rumah No 1, Jalan Diamond 13, 43500 Semenyih, Dalam Daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan, bagi mencapai niat bersama, telah didapati menanam pokok jenis Cannabis (berat bersih 245.5 gram, 40.4 gram, 17.5 gram, 18.2 gram, 31.4 gram, 2.2 gram, 17.8 gram, dan 70.4 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 6B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 6B(3) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan. Hukuman: Hendaklah dihukum dengan pemenjaraan seumur hidup dan sebatan tidak kurang daripada 6 sebatan.

At the end of the prosecution case, I found that the prosecution had failed to make out a prima facie case against the accused persons. Therefore I acquitted and discharged them. My reasons now follow.

The prosecution called the following witnesses to prove their case: SP1:Sjn Rokidin Bin ArshadJurustorSP2:Dr Nur Nazihah Binti Md ShahariAhli KimiaSP3:Lim Mei YenSaksi AwamSP4:Yeow Cheah HungSaksi AwamSP5:Wong Ying WaiSaksi AwamSP6:Sjn Mohamad Zaki Bin HussinJurufotoSP7:Sjn Syed Al-MalekJurustorSP8:ASP Nazarudin Bin Haji Abdul RahimPengaduSP9:Ahmad Dahlan Bin UbaidahAhli Kimia DNASP10:ASP G/20946 Wan Amir Ikmal Bin Wan MohamadForensik Tempat Kejadian

The brief facts of the prosecution case as taken from the DPP's submission is as follows:

1 Bertindak atas maklumat dadah yang diterima, pada 25/06/2021, jam lebih kurang 2200 hrs, SP8 bersama Insp G/25990, Sjn 136731, D/Sjn/W 140123, Kpl 136742, Kpl 146455, D/Kpl 176225 dan D/Kpl 178962 telah pergi ke alamat rumah No 1 Jalan Diamond 13, 43500 Semenyih, Selangor.

2 Sampai di alamat tersebut dapati pintu rumah dalam keadaan berkunci, SP8 ketuk pintu rumah dan memberitahu kedatangan Polis beberapa kali.

3 Pintu rumah telah dibuka oleh 1 lelaki warganegara Singapura iaitu penama B1 Aniell Sabhneni (OKT1) dan SP8 telah perkenalkan diri sebagai Polis dengan menunjukkan kad kuasa Polis dan pemeriksaan badan telah dibuat ke atas badan B1, namun tiada barang salah dan dadah dijumpai.

4 Seterusnya SP8 telah jalankan pemeriksaan ke atas rumah B1 iaitu di alamat No 1 Jalan Diamond 13, 43500 Semenyih, Selangor. Pemeriksaan ke atas keseluruhan kawasan rumah telah tahan 1 lelaki warganegara Singapura penama B2 Nethan Sabhneni (OKT2) yang sedang duduk di meja makan di ruang dapur aras pertama rumah tersebut dan seterusnya pemeriksaan di aras kedua dalam rumah tersebut SP8 dan pasukan serbuan telah tahan 1 lelaki warganegara Singapura bernama Sethan Sabhnei (OKT3) sedang berdiri di dalam bilik sebelah kiri di aras kedua rumah itu.

5 Seterusnya SP8 telah bertanya dalam bahasa yang mudah difahami kepada ketiga-tiga penama adakah ada menyimpan apa-apa barang salah, ketiga-tiga penama hanya mendiamkan diri. Seterusnya disaksikan ketiga-tiga penama dan pasukan serbuan yang hadir, SP8 jalankan pemeriksaan di aras no. (3) dalam bilik pertama dari sebelah kiri rumah tersebut telah menjumpai (1) khemah canvas kain berwarna hitam/silver di bilik no. (1) dari sebelah kiri di aras no.(3) telah menjumpai (3) plant grow beg berwarna hitam di mana plant grow beg yang SP8 tanda (a1) dapati sebatang pokok disyaki ganja (anggaran ketinggian: 53 inci), (a2) (anggaran ketinggian: 49 inci) dan (a3) (anggaran ketinggian: 24 inci).

6 Pemeriksaan selanjutnya di luar khemah canvas kain berwarna hitam/silver dalam bilik tersebut SP8 telah menjumpai (1) bekas plastik berwarna merah yang berpenutup hitam yang SP8 tanda C di mana pemeriksaan di dalam bekas plastik tersebut dapati (23) bekas botol kaca lutsinar yang SP8 tanda C1 hingga C23 tersebut mengandungi dedaun kering disyaki dadah jenis ganja dengan anggaran berat yang SP8 tanda C1 40.8 gram; C2 17.7 gram, C3 26.7 gram, C4 44.7 gram, C5 0.1 gram, C6 7.7 gram, C7 11.00 gram, C8 35.6 gram, C9 16.5 gram, C10 12.2 gram, C11 0.2 gram, C12 11.2 gram, C13 12.9 gram, C14 23.4 gram, C15 13.9 gram, C16 15.7 gram, C17 22.4 gram, C18 12.1 gram, C19 17.1 gram, C20 13.6 gram, C21 16.2 gram, C22 15.8 gram dan C23 10.5 gram. Pemeriksaan selanjutnya di aras yang sama di dalam bilik no.

bertentangan dengan tangga aras (3) telah menjumpai khemah canvas kain berwarna hitam/silver telah menjumpai

plant grow beg hitam di mana yang SP8 tanda (B1) dapati sebatang pokok disyaki ganja (anggaran ketinggian: 15 inci), (B2) dapati sebatang pokok disyaki ganja (anggaran ketinggian: 14 inci), (B3) dapati sebatang pokok disyaki ganja (anggaran ketinggian: 27 inci), (B4) dapati sebatang pokok disyaki ganja (anggaran ketinggian: 4.7 inci) dan (B5) dapati sebatang pokok disyaki ganja (anggaran ketinggian: 9 inci). Pemeriksaan selanjutnya di aras bawah SP8 telah rampas (3) batang anak kunci dan di atas kabinet tv dalam rumah tersebut.

8 Pemeriksaan lain-lain bahagian dalam rumah tersebut tidak menjumpai apa-apa barang salah mahu pun dadah. SP8 rampas barang kes dan tangkap ketiga-tiga penama tersebut untuk dibawa ke pejabat Bahagian Siasatan Jenayah Narkotik IPD Kajang Selangor untuk tindakan selanjutnya. Sebab-sebab tangkapan telah diberitahu sepertimana peruntukan di bawah Seksyen 28A KPJ kepada ketiga-tiga penama tersebut dan diakui faham.

9 Kesemua barang kes dirampas, OKT-OKT ditangkap dan dibawa ke BSJND Kajang untuk tindakan lanjut.

10 SP8 kemudiannya telah serahkan B1, B2 dan B3 dan kesemua barang kes yang dirampas kepada Pegawai Penyiasat Insp G/25387 Jasveer Singh a/l Awtar Singh (SP13), beserta Laporan Polis Semenyih 3858/21, borang bongkar bagi pemeriksaan di No 1 Jalan Diamond 13, 43500 Semenyih, Selangor, borang serah menyerah dan barangbarang kes.

11 SP13 telah membuat tandaan semula kepada 8 pokok yang dirampas dengan tandaan JSA, JSB, JSC, JSD, JSE, JSF, JSG, JSH, JSl dan 23 botol kaca dengan tandaan JSD1 hingga JSD23.

12 Barang kes yang dirampas telah dihantar ke Jabatan Kimia Malaysia untuk dianalisa oleh ahli kimia Dr Nur Nazihah (SP2) mendapati bahawa barang yang dirampas dari OKT-OKT adalah pokok-pokok jenis Cannabis dan 23 botol kaca bertanda JSD1 hingga JSD23 mengandungi dadah jenis cannabis sejumlah 315.3 gram.

The Dangerous Drugs Act states : Restriction on planting or cultivation of certain plants

(1) No person shall—

either on his own behalf or on behalf of any other person, plant or cultivate any plant from which raw opium, coca leaves, poppy-straw or cannabis may be obtained either directly or indirectly;

allow any plant, from which raw opium, coca leaves, poppystraw or cannabis may be obtained either directly or indirectly, to be planted or cultivated by some other person on land owned or occupied by him or in any receptacle on such land; or

allow any plant, from which raw opium, coca leaves, poppy straw or cannabis may be obtained either directly or indirectly, planted or cultivated by some other person on land owned or occupied by him or in any receptacle on such land, to remain on such land or in such receptacle.

Any person who contravenes this section shall be guilty of an offence against this Act and shall be punished on conviction with imprisonment for life and with whipping of not less than six strokes.

Any person found on land or who occupies land on which, or any person found in possession of any receptacle in which, any plant, from which raw opium, coca leaves, poppy-straw or cannabis may be obtained either directly or indirectly, is planted or cultivated shall be presumed, until the contrary is proved, to be the person who planted or cultivated such plant. Trafficking in dangerous drugs

(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—

traffic in a dangerous drug;

offer to traffic in a dangerous drug; or

do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug. The court's duty at the end of the prosecution case

Section 180(1) of the Criminal Procedure Code ("CPC") provides that at the conclusion of the prosecution's case, the court shall consider if the prosecution has established a prima facie case against the accused person. Section 180 of the Criminal Procedure Code states:

Procedure after conclusion of case for prosecution

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.

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.

Mozley and Whiteley's Law Dictionary (11th edn) defines a prima facie case as: "A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side."

In PUBLIC PROSECUTOR v ONG CHENG HEONG [1998] 6 MLJ 678 ; [1998] 4 CLJ 209, the learned judge Vincent Ng held : "What then constitutes a 'prima facie case'? 'Prima facie' means on the face of it or at first glance. To me, in the light of Act A979, perhaps the most appropriate definition of a 'prima facie case' could be found in the Oxford Companion of Law (p 987), which has it as: A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive. (Emphasis added.) It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected."

In the Federal Court case of Abdullah bin Atan v Public Prosecutor and other appeals [2020] 6 MLJ 727 FC, Tengku Maimun Chief Justice (as she then was) said: "[42] The purpose of s 180(4) of the 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:

(a)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

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 s 180 of the CPC (see: Mohamad Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169; Tan Boon Kean v Public Prosecutor [1995] 3 MLJ 514). [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 s 180(4) means that the prosecution may prove each ingredient of the offence either:

(a)by adducing credible direct evidence of that ingredient;

(b)by drawing inferences of fact, ie adducing credible circumstantial evidence, from which the ingredient can be inferred; or

(c)by invoking presumptions of law, ie adducing credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists. [58] Section 180(4) of the CPC and s 37(da) of the DDA must be read harmoniously, applying the doctrine of harmonious construction. In a 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 Muziadi bin Mukhtar [2020] 1 MLJ 141 at paras 78-79). A harmonious construction would limit 'credible evidence' to the actual finding of possession, as propounded in Muhammed bin Hassan, 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."

In the Federal Court case of Ariff Arhannan bin Che Udin v Public Prosecutor [2022] 3 MLJ 157 FC, Abdul Rahman Sebli FCJ (as he then was) opined: "[19] Given the imperatives of s 37(d) and 37(da) of the DDA, there are effectively two ways in which a prima facie case of trafficking under s 39B(1)(a) of the Act can be established by the prosecution at the close of its case :

by invoking the statutory presumption of trafficking under s 37(da), provided it is proved by actual or affirmative evidence that the accused was in possession of the drug. This is presumed trafficking; or

by invoking the statutory presumption of possession and knowledge of the nature of the drug under s 37(d), provided it is proved that the accused had custody or control of the drug. Read with the definition of trafficking under s 2 and taking into account the amount of the drug, an inference of trafficking can be drawn. This is trafficking by inference: Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor [1981] 1 MLJ 64; [1980] 1 LNS 181."

In order for the prosecution to make out a prima facie case for the trafficking charge against the accused persons, it is necessary for the prosecution to prove the following three elements of the offence under section 39B of the Act. There are first, the drugs involved must be a dangerous drug as specified in the First Schedule to the Act. Secondly, the drugs were in the possession of the accused persons and thirdly, the accused persons were trafficking in the said drugs. Lastly all of them had a common intention to do so as stated in section 34 of the Penal Code.

For the second charge under section 6 of the DDA, the prosecution must prove that the plants are cannabis plants as defined in section 2 of the DDA, the accused persons planted the cannabis plants, and they had a common intention to do so. The DDA defines "cannabis" as any part of any plant of the genus Cannabis from which there is found to be present resin irrespective of its quantity, and by whatever name the plant may be designated.

For the first charge as far as the first element goes, there is no dispute that the drugs in this case was 315.3 grams of cannabis, and for the second charge that the plants were of the genus Cannabis from which there is found to be present resin irrespective of its quantity.

It is the remaining two elements that have not been proven by the prosecution id est the drugs were in the possession of the accused persons and that they were trafficking the same with common intention. The issues in this case

There were four main issues raised by the defence to say that the prosecution has failed to establish a prima facie case against the accused persons.

The prosecution failed to prove the accused persons had custody care and knowledge of the drugs and cannabis plants that were found in the house

there was a break in the chain of evidence and a doubt on the identity of the drugs

material contradictions in the evidence of the prosecution witnesses

the failure of the investigating officer ( I.O ) to do a proper investigation

In this case the reaction of the accused persons were consistent with that of innocence and not having knowledge of the drugs and cannabis plants. This was supported by the evidence of the RO SP8 who said there was no scuffle or attempt to run by the accused persons. In fact SP8 said the accused persons gave cooperation to the police during the raid. The first accused had opened the main door for the police, whereas the second accused was eating at the dining table and the third accused was sleeping in the room. Therefore the conduct of the accused persons were consistent with that of not having knowledge of the drugs and cannabis plants. See the case of Low Thiam Teck v PP [2015] 3 MLJ 134. The mere presence of the accused is not enough to prove knowledge. See Wong Nyet Wah v PP [1962] MLJ 312.

It has to be borne in mind that the raid by SP8 was the second raid conducted on that day. The first raid was done by the commercial crime team headed by ASP Ahmad Yutri. Therefore they were the ones who were first to arrive at the scene. That being the case, the prosecution should have called at least one of the commercial crime raiding team to give evidence as it was essential to the unfolding of the narrative on which the prosecution case was based. It was also important because the commercial crime team can say what they saw in the house and more importantly what they did to secure the crime scene pending the arrival of the narcotics team. They can also throw light on how the crime scene was handed over to the narcotics team, and whether the accused were arrested or not. It would be quite surprising if the commercial crime team just up and left the crime scene unattended and the accused persons were let loose in the house. This is what the RO SP8 seems to suggest from his evidence because he said that he made a surveillance for about an hour. This created a yawning gap in the unfolding of the prosecution's case. See the case of TI CHUEE HIANG v PUBLIC PROSECUTOR[1995] 2 MLJ 433, where the Supreme Court stated: "...it is clear law that the prosecution must have in court all witnesses from whom statements have been taken, but they have a discretion whether to call them or not. (See Teh Lee Tong v PP [1956] MLJ 194.) That discretion, however, must be exercised having regard to the interests of justice, which includes being fair to the accused (per Lord Parker CJ in R v Oliva [1965] 3 All ER 116 at p 122[1965] 2 WLR 1028 at p 1035), and to call witnesses essential to the unfolding of the narrative on which the prosecution case is based, whether the effect of their testimony is for or against the prosecution (per Lord Roche in the Ceylon Privy Council case of Seneviratne v R [1936] 3 All ER 36 at p 49, applied in R v Nugent [1977] 3 All ER 662; [1977] 1 WLR 789).

There was a break in the chain of evidence regarding the drugs exhibits. The raiding officer SP8 said there were 8 plant grow bags and this was stated in P57 the Borang Pemeriksaan. However in P58 Borang Serah Terima between SP8 and the IO SP 13 it showed only 4 plant grow bags. Furthermore in P65 the pictures taken of the house, it shows at least 11 plant grow bags. SP 8 in his evidence also admitted that there was a break in the chain of evidence as regards the drugs exhibits. There was also no evidence led as to who had planted the cannabis plants in the house. There were no items of the accused persons found at the third floor where the plants were found neither were there any DNA or fingerprints of the accused persons found on that floor or on the drugs and cannabis plants.

Another issue was that there was a Ford Ranger vehicle parked outside the house which was denied by SP8. However SP13 confirmed the presence of the vehicle and said it was confiscated by SP8. SP13 also said that the Ford Ranger pick up was also seen entering the area about 60 minutes before the raid. This was according to the CCTV footage. The IO said that the accused persons came back to the house that day from Singapore. The failure by the prosecution to tender the CCTV recording

It is the duty of the prosecution to make available the best evidence that can prove their case. Here the best evidence would have been the CCTV recording to show who came in or out of the residential housing estate. The recording would also confirm the fact whether the accused persons arrived at the house one hour before the raid in the Ford Ranger. However the IO failed to obtain the CCTV recording from the guard house although he told the court that he had seen the footage of the recording.

In the case of SEE KEK CHUAN v PP [2013] 6 MLJ 885, the Court of Appeal said: [29] The importance of the CCTV footage cannot be doubted. It would clear the lingering doubt of whether Ah Fatt carried the black bag and threw it to the floor and bolted at the lobby of the said hotel leaving the appellant to face the music, so to speak, or it was the appellant who was all alone was seen by PW3 carrying the black bag in his right hand and entering the lobby of the said hotel and was placed under arrest by PW3. Had the CCTV footage being produced, the High Court judge would be in a better position to verify the prosecution's version. Bereft of the CCTV footage, the High Court judge should have invoked the presumption under s 114(g) of the Evidence Act 1950 bearing in mind 'that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it' and acquitted and discharged the appellant without calling for his defence. [30] Right from the very start, the importance of the CCTV footage was highlighted by the defence. PW4 was categorical when he testified that the police had requested and was given the CCTV tape. PW9 testified that there were CCTVs focused at 32 locations at the said hotel and also at the lobby. These CCTVs would surely verify the version of the prosecution if tendered. Yet, not a single CCTV tape was produced and tendered by the prosecution. [33] In our judgment, the non-production of the CCTV footage amounts to a withholding or suppression of evidence and if it was produced, it would be unfavourable to the prosecution and, consequently, the adverse presumption under s 114(g) of the Evidence Act 1950 must be invoked against the prosecution. [34] It goes without saying that the non-production of the CCTV footage had disadvantaged or prejudiced the defence and the truth of the prosecution's case could not verified. Indeed in a criminal trial, fairness must be displayed by the prosecution. And the concepts of a fair trial and fairness have been recognised by our Malaysia Courts in Cheak Yoke Thong v Public Prosecutor [1984] 2 MLJ 119 (FC); Goi Ching Ang v Public Prosecutor [1999] 1 MLJ 507 (FC); Tan Hun Wah v Public Prosecutor and another appeal [1994] 1 MLJ 382; [1994] 1 AMR 113 (SC); Azahan bin Mohd Aminallah v Public Prosecutor [2005] 5 MLJ 334; [2004] 6 AMR 810 (CA); and Public Prosecutor v Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193; [2006] 2 CLJ 129 (FC).

If the CCTV recordings were taken by the IO, it could have been ascertained when the Ford Ranger driven by the accused persons arrived at the house. It could also be determined when the commercial crime team raided the house. Also what time the narcotics team conducted their raid, and most importantly whether any other person or persons came in or out of the house. Therefore this court is deprived of a complete investigation which could have assisted the court in coming to a just decision. The failure of the IO to investigate the case fairly

A sound and thorough investigation rests on three main foundations, namely diligence, fairness and independence.

The IO in this case failed to investigate the visitors book and RFID log located at the guard house which could have determined the ingress and egress of vehicles in that residential area. This would have helped the court to determine whether the prosecution version was what actually happened.

The IO admitted in cross examination that there were clothes belonging to others besides the three accused that were found in the house but he never investigated who those clothes belonged to. There were also various shoes in the house that were not confiscated. Besides that there were documents found in the house by the IO in the name of others including Chinese names like Siaw Kim Yaw but were never confiscated or investigated.

The IO did not investigate the Ford Ranger that was parked outside the house. The IO saw the car coming in towards the house in the CCTV recordings. But the IO didn't investigate anything regarding who was driving the car or as regards its owner. This again was a failure on the IO's part to properly investigate this case. This would also establish the fact that the accused persons had just arrived at the house one hour prior to the first raid by the commercial crime team.

The IO also stated that he found a lot of things piled up just outside the house as in the pictures P40 (4 & 5) when he went there on 28.6.2021. However the RO had said in evidence that there was no such things that were piled up outside the house when he left the scene. The RO had also said that before and after the raid the house was not as in P40 (8 & 9). The IO on the other hand said that the house was as in P40 (8 & 9). The house had been locked by the RO and the keys were handed over to the IO.

This raises the question who had entered the house between the time the RO raided the place and the IO came? The RO had raided the house on 25.6.2021 at 10 pm whereas the IO visited the scene on 28.6.2021 at about 3 pm. What was the person or persons looking for? How did he or they entered the house? Did they have a spare key and how did they acquire it? How did the things come to be piled up outside the house as the RO had said that the house was not as in P40 (8 &9). All these questions were left unanswered. The IO did not investigate the said questions.

In Rahmani Ali Mohamad v Public Prosecutor[2014] 6 MLJ 525, the Court of Appeal opined: [15] Even more, no investigation at all was carried out by PW8 to disprove the appellant's version of fact, particularly concerning Mohd Reza, which was given by the appellant at the earliest possible opportunity. In this regard, PW8 said that he did not investigate the appellant's handphone because 'saya terlepas pandang'. PW8 also said, 'saya tak periksa rekod-rekod panggilan keluar masuk OKT 2. Jika disiasat mungkin boleh dapat maklumat lanjut'. The appellant cannot be penalized for lack of ingenuity, negligence or inadvertence on the part of the investigator depriving him of the time honoured benefit of doubt (see Pang Chee Meng v. Public Prosecutor [1992] 1 CLJ Rep 265; [1992] 1 CLJ 39; [1992] 1 MLJ 137). The manner in which PW8 had conducted his investigations left many stones unturned and material gaps exists. Based on this omission, an inference in the appellant's favour ought therefore to have been drawn by the learned High Court judge at the close of the prosecution case (see Lee Kwan Woh v. Public Prosecutor [2009] 5 CLJ 631; [2009] 5 MLJ 301 and Alcontara a/l Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705; [1996] 1 MLJ 209). [16] In our judgment, the appellant's right to a fair trial has been compromised as a result of the failure of PW8 to carry out investigation to verify the appellant's version of fact. The appellant may thereby have lost a chance which was fairly opened to him of being acquitted and that there had been occasioned a failure or a miscarriage of justice (see Mraz v. The Queen (1953) 93 CLR 493 quoted with approval in Lim Hock Boon v. Public Prosecutor [2007] 4 CLJ 114; [2007] 1 MLJ 46).'

See also the Court of Appeal case of Ghasem Gharezadehsharbiani Hassan v Public Prosecutor [2014] 5 MLJ 433 and Lee Kwan Woh v PP [2009] 5 MLJ 301 FC.

Finally it is pertinent to recall what was said by Justice Sharma in Public Prosecutor v Saimin & ORS [1971] 2 MLJ 16, where his lordship said : "It is the duty of the prosecution to prove the charge against the accused beyond all reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer. The proof of a case against the accused depends for its support not upon the absence or weakness of the explanation on his part but on the positive affirmative evidence of his guilt given by the prosecution."

Therefore based on what has been adumbrated above, the three accused persons were acquitted and discharged for the two charges against them. Note : This judgment is subject to correction of typographical errors, grammatical mistakes and editorial formatting, if any.

The Criminal Procedure Code: A Commentary with Appellate Practice & Procedure (3rd Ed, Sweet & Maxwell)

The Penal Code A Commentary (Sweet & Maxwell, 2023)

Public Prosecutor V Ong Cheng Heong [1998] 6 Mlj 678 ; [1998] 4 Clj 209

Abdullah bin Atan v Public Prosecutor and other appeals [2020] 6 MLJ 727 FC

Ariff Arhannan bin Che Udin v Public Prosecutor [2022] 3 MLJ 157 FC

Low Thiam Teck v PP [2015] 3 MLJ 134

Wong Nyet Wah v PP [1962] MLJ 312

Ti Chuee Hiang V Public Prosecutor[1995] 2 MLJ 433

See Kek Chuan V Pp [2013] 6 MLJ 885

Rahmani Ali Mohamad v Public Prosecutor[2014] 6 MLJ 525

Ghasem Gharezadehsharbiani Hassan v Public Prosecutor [2014] 5 MLJ 433

Lee Kwan Woh v PP [2009] 5 MLJ 301 FC.

Public Prosecutor v Saimin & ORS [1971] 2 MLJ 16