Ibni Ladja Bin Lakibul v Public Prosecutor (S-05(M)-419-11/2016 (PHL)

Ibni Ladja Bin Lakibul

Juris Bin Rualdes] 2 CORAM: DAVID WONG DAK WAH, JCA HAMID SULTAN BIN ABU BACKER, JCA KAMARDIN HASHIM, JCA JUDGMENT OF THE COURT [1] The appellants were charged and tried before the High Court at Tawau for an offence of trafficking in dangerous drugs under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (‘the Act’) punishable under Section 39B(2) of the Act. Both were convicted and sentenced to death by the learned Judicial Commissioner of the High Court (‘learned JC’). [2] The charge against both the appellants read as follows: “Bahawa kamu bagi mencapai niat bersama pada 29hb. September 2014 jam lebih kurang 10.30 pagi, bertempat di tepi Jalan Tengah Nipah, di dalam daerah Lahad Datu, di dalam negeri Sabah, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 2125.1 gram, dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dan dibaca bersama dengan Seksyen 34 Kanun Keseksaan.” [3] Aggrieved by the conviction and sentence, the appellants appealed to this Court. We heard their appeals on the 25.9.2017 and 3

26.9.2017. We had unanimously dismissed the appeals. We now provide our reasons. The Prosecution’s Case [4] The prosecution’s case may be summarized as follows. Based on information received, on 29th September 2014 at about 10.30 a.m one Inspector Mohd Nor Bin Ariffin (PW6) and his team which included Inspector Wahid Bin Sujani (PW7) made an observation along Jalan Nipah Tengah – Tungku. During the observation, PW6 saw the target car, a blue Perodua Kancil bearing registration number JGE 6031 (‘the Kancil car’) with two men inside the same travelling towards Lahad Datu. PW6 alerted the Mobile Patrol Unit (MPV) supervisor, Sjn. Datu Ali Nagiah Bin Datu Ali (PW8) who then together with his man, set up a road block at the junction near the EON workshop. [5] PW6 followed the Kancil car and upon reaching the junction, PW6 saw two MPV personnel signaling for the driver of the Kancil car to stop. The Kancil car did not stop and sped off. The MPV car then gave chase and managed to stop the Kancil car about 1 kilometre away. In the process, the Kancil car was seen by PW6 to have rammed into the MPV. The driver of the Kancil car was later identified as Juris Bin Rualdes (the 4 second appellant) and the male passenger was later identified as Ibni Ladja Bin Lakibul (the first appellant). They were both then arrested. [6] The police then inspected the Kancil car and found a white sack (guni) in the trunk of the Kancil car. Inside the white sack (P2) the police found one black bag with the words “Rancini” (P3) containing seven (7) boxes with the words “Custard Pie” (P11 – P17) wrapped with brown cellotape. Inside each of the seven (7) boxes, the police recovered a transparent plastic packet containing clear crystallized substances suspected to be dangerous drugs. [7] All the seven (7) plastic packets (P11 – P17) containing the clear crystallized substances were later sent to the Chemist, Biling a/k Peter Raig (PW3) for analysis. PW3 confirmed that he received the exhibits from the investigating officer, Inspector Fadzli Bin Ramli (PW10). PW3 also confirmed, upon analysis that the clear crystallized substances found in the seven (7) plastic packets (P11 – P17) contained Methamphetamine weighing 2,125.1 grams. Methamphetamine is a dangerous drugs listed in the First Schedule of the Act. 5 Findings at the end of the Prosecution’s Case [8] The learned JC accepted the evidence of PW3 on the drugs analysis. The learned JC was satisfied that there was no defect in PW3’s analysis and that there was no serious challenge by the defence on the identity of the impugned drugs. The learned JC accepted the evidence of PW3 as to the type and weight of the impugned drugs, the subject matter of the charge. [9] As for the element of possession, the learned JC held that both the appellants had joint custody and control of the white sack containing the impugned drugs found in the Kancil car’s trunk. Both the appellants were the only persons in the Kancil car. The learned JC inferred that the appellants had the requisite knowledge of the impugned drugs based on the fact that the appellants did not stop when they were directed to do so. Instead they sped when they saw the police. Based on the factual matrix of the case, His Lordship found that the appellants had possession of the impugned drugs by way of direct evidence. [10] As for the element of trafficking, the learned JC invoked the statutory presumption under Section 37(da)(xvi) of the Act based on the weight of the impugned drugs which well exceeded the minimum weight of 50 grams to trigger the presumption. 6 [11] After being satisfied that all the element of the charge had been proven, the learned JC held that the prosecution had established a prime facie case against both the appellants on the charge proffered. Thus both the appellants were call upon to enter their defence. The Defence [12] Both the appellants elected to give evidence under oath. The first appellant testified that in the morning of 29.9.2014, he received a telephone call by one Daud asking for assistance to take something (barang) at Felda Lokbuani, Lahad Datu. He did not know Daud but nevertheless agreed to assist him. He then called the second appellant to accompany him. They then proceeded to Felda Lokbuani, Lahad Datu in the Kancil car belonging to the second appellant and driven by the second appellant. At Felda Lokbuani, he collected the white sack from one Abdul Momin bin Sulaiman (‘Abdul Momin’). The white sack was tied with a white string. He did not know what was inside the white sack and he did not open it. He did not asked Abdul Momin what was inside the white sack. When he received the white sack, Abdul Momin was seated on a motorcycle. He placed the white sack inside the Kancil car and he had told the second appellant that there is a “barang” inside the white sack. 7 [13] The first appellant further testified that they then went back to Lahad Datu. Upon reaching Jalan Tengah – Nipah, the police stopped them and they were both arrested by the police and the white sack was seized by the police. The first appellant stated that the police open the white sack at the police station and not at the place he was arrested. [14] The first appellant also told the Court that Inspector Wahid (PW7) had asked him where he collected the white sack (“Dimana kau ambil karung putih?”) to which he replied that “dari Abdul Momin Bin Sulaiman”. He told the police that he did not know the contents of the white sack until the police opened it. He also testified that besides PW7, he also mentioned about Abdul Momin to Inspector Mohd Fadli (PW10), the investigating officer. [15] In his evidence under oath, the second appellant told the court that he worked as an unlicensed taxi driver (teksi sapu). On 29.9.2014 at about 7.00 a.m, he received a call from first appellant requesting for his assistance to go to Felda. He asked the first appellant “pergi mana?” and the first appellant told him that to Lokbuani. He told the first appellant that his charges was RM100 for the trip and the first appellant agreed to it. They then proceeded to Felda Lokbuani ini his car. 8 [16] He drove the car and upon reaching Kpg. Telisai and upon seeing a motorcycle from the opposite direction, the first appellant asked him to press his horn and the motorcycle then stopped by the roadside. He then made a U-turn, approached the motorcycle and parked his car about 10 feet in front of the motorcycle. The first appellant then alighted from the car. He saw the man on the motorcycle handing over the “barang” to the first appellant. The first appellant then walked towards the car and placed the white sack on the passenger seat of the car. He then transferred the white sack to the boot of the Kancil car and drove back to Lahad Datu. [17] The second appellant further stated that upon reaching Jalan Tengah – Nipah, he saw one petrol car at the EON junction. He slowed down his car and passed the petrol car. He saw one policeman whom he knew i.e Romzi who waved his hands. He did not suspect anything and proceeded to drive. About after half a kilometer, he heard the sound of the siren of the police car before he stopped his car. Thereafter the police car rammed (himpit) his car. The first appellant came out of the car and the police officer directed him to get out from the car as well and handcuffed him and transferred him to the police car. 9 [18] The second appellant denied any knowledge about the content of the white sack. The police did not show the content of the white sack at the place where he was arrested together with the first appellant. He did not have any interactions with the motorcyclist who handed over the white sack to the first appellant. He did not mention about the motorcyclist during the police investigation as he was not asked about it. [19] Having evaluated the evidence of the appellants, the learned JC found that the appellants had failed to raise a reasonable doubt on the prosecution’s case. The learned JC further held that the appellants had failed to rebut the presumption of trafficking under section 37(da) of the Act earlier invoked against them, on the balance of probabilities. [20] The learned JC held that the first appellant’s version in respect of a person by the name Daud who had called him to take the “barang” from Felda Lokbuani was just an afterthought and cannot be believed as this person named Daud was never raised or put to the prosecution’s witnesses. [21] On the defence of an innocent carrier put up by the appellants, the learned JC rejected the defence as both of them were guilty of wilful 10 blindness. Any reasonable man would be cautious when someone simply said the white sack contained “barang” when asked about its contents and would have queried further. There was no explanation from the appellants why the appellants were requested to collect the white sack from Abdul Momin when the evidence showed that Abdul Momin himself riding a motorcycle towards Lahad Datu when they met him at Telisai. Learned JC criticized the defence’s reaction when they strongly objected to call Abdul Momin as a rebuttal witness by the prosecution. The learned JC held that the existence of Abdul Momin and his purported role is a mere manufactured evidence of both the appellants. [22] The learned JC was satisfied that the prosecution had proven their case against both the appellants beyond reasonable doubt. The appellants were then convicted and sentenced to death. The Appeal [23] Before us learned counsel for the first appellant canvassed the following three (3) issues:

No prima facie case;

Conduct of the first appellant; and

Failure to call Abdul Momin. 11 [24] On the first issue, learned counsel submitted that the learned JC misdirected himself to the fact that just because the first appellant was a passenger in the Kancil car, he must have had the custody and control of the impugned drugs. Learned counsel argued that no prima facie case had been established by the prosecution against his client solely based on the fact that the first appellant was just a mere passenger in the Kancil car. [25] On the second issue, learned counsel misdirected himself where His Lordship relied on the so call conduct of the first appellant in attempting to run away from the scene of the incident to fastened knowledge of the impugned drugs. Learned counsel argued that there was no evidence to show that the first appellant had attempted to run away from the police. [26] The third issue was related to Abdul Momin. Learned counsel submitted that Abdul Momin is a real person and not a fictitious character. Alcontara’s Notice had been given to the prosecution but Abdul Momin was not called as a witness. Learned counsel submitted that Abdul Momin was a material witness and was the real trafficker. Therefore it was argued that the learned JC erred when His Lordship 12 failed to invoke adverse inference in favour of the defence under section 114(g) of the Evidence Act 1950 for the failure of the prosecution to call the witness. [27] Learned counsel for the second appellant adopted the submissions by learned counsel of the first appellant. Besides, learned counsel for the second appellant had another complaint when the learned JC criticized the second appellant’s defence for failure to inform the police about Abdul Momin. Learned counsel refuted the claim by saying that the second appellant did inform the police about the role of Abdul Momin. Our Decision [28] We shall now deal with the first and second issues as they are interrelated with each other on whether learned JC had correctly decided that there was a prima facie case established by the prosecution against both the appellants. From the learned JC’s judgment, we observed that His Lordship had subjected the evidence adduced by the prosecution’s witnesses to a maximum evaluation before holding that the three main elements of the charge had been prima facie established. The learned JC accepted the evidence adduced as credible evidence. These could be seen from pages 10 – 11 of the Appeal Record Volume 1: 13 “[6] There is no dearth of authorities that dealt with the standard of proof of a prima facie case. Simply put the standard of proof of a prima facie case is now a prima facie evidence and not conclusive or beyond reasonable doubt evidence. A prima facie case is made out where there is sufficient credible evidence establishing each essential ingredients of the offence for a supposition of guilt if it is not answered by the Accuse (Public Prosecutor vs Sukumaran a/l Sundram [1999] 4 MLJ 426). The court must embark on a maximum evaluation process of the evidence adduced by the prosecution on each essential ingredient of the offence. [7] Hence the test of a prima facie is whether the prosecution has adduced credible evidence to prove each essential ingredients of the offence which if unrebutted or unexplained would warrant a conviction. In the case of PP vs Mohd Radzi Bin Abu Bakar [2006] 1 CLJ 457 it was stated that: “…put shortly, what the trial court is obliged to do under section 173(f) and section 180 of the Criminal Procedure Code is to ask itself the question. If the Accused elects to remain silent as he is perfectly entitled to do so, am I prepared to convict him on the evidence now before me? If the answer to the question is in the affirmative then a prima facie case has been made out and the defence should be called. If the answer is “No” then a prima facie case has not been made out and the Accused should be acquitted”. [8] With the above principle in mind I shall now consider whether the prosecution had adduced credible evidence that supports the ingredients of the offence. As a trier of facts I must subject the evidence adduced by the prosecution to a maximum evaluation test (Looi Kow Chai v Public Prosecutor [2003] 1 CLJ 734).” 14 [29] The learned JC in his assessment of the evidence of the prosecution’s witnesses relied on the direct evidence for the element of possession and further His Lordship relied on overt act of both the appellants in attempting to run away from the police to fastened the element of knowledge on both of them. Whereas for the element of whether the exhibits recovered were a dangerous drugs under the Act, the evidence of PW3 were not disputed and not seriously challenged by the defence. The learned JC relied on the facts that only both the appellants were inside the Kancil car. The second appellant was behind the wheels and the first appellant was the passenger. The Kancil car did not stop when asked to do so by the police. Instead, they sped off with hot pursuit by two police cars. The Kancil car try to ram into the police car in the process to escape the police team. When the Kancil car was finally managed to a halt, the impugned drugs were recovered by the police from the trunk of the Kancil car. The learned JC also received and relied on the evidence that the first appellant was the one who collected the sack from a man, ‘Abdul Momin’ and put it in the trunk of the Kancil car. [30] We found that the learned JC had correctly inferred from the conducts of both the appellants to hold that both the appellants had 15 custody and control of the drugs exhibits and at the same time had the prerequisite knowledge of the same. Evidence as to the conduct of both appellants are receivable under section 8 of the Evidence Act 1950 and both the appellants are duty bound to give an explanations about it as required under Section 9 of the same Act. Sections 8 and 9 of the Evidence Act 1950 thus provides: Motive, preparation and previous or subsequent conduct

(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct or any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 – The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 – When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant. Facts necessary to explain or introduce relevant facts

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue 16 or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant so far as they are necessary for that purpose. [31] As to the element of trafficking, the learned JC relied on the statutory presumption under Section 37(da)(xvi) of the Act as the weight of the drugs exhibits involved were more than the minimum 50 grams to trigger the statutory presumption under the Act. The learned JC was entitled to invoke the statutory presumption following the decision of Augustine Paul, J (as he then was) in PP v. Hairul Din bin Zianal Abidin (2001] 6 MLJ 146. [32] We had the opportunity to peruse the Appeal Records and we agreed with the learned JC’s finding that the prosecution had succeeded in establishing a prima facie case against both the appellants based on the evidence available before the Court. Therefore we see no merits in the first and second grounds of the appeal raised by the learned defence counsel. [33] The third issue raised by both defence counsel was in respect of Abdul Momin. We have perused the Appeal Records and discovered 17 that the name Abdul Momin came out the first time when PW6 gave evidence under cross-examination. PW6 denied any involvement of Abdul Momin in this case and denied any knowledge about this so called person. The evidence of PW6 under cross are as follows: “Q237 : Saya katakan kamu bahawa bila kamu menyoal OKT sama ada dia ada membawa barang salah OKT 1 memberitahu kamu nama seorang iaitu Mokmin yang memberi karung putih kepada beliau di Kg. Telisai Tungku. Setuju? : Tidak setuju. Q238 : Saya katakan kepada kamu bahawa OKT 1 ada memberitahu kamu nombor telefon Mokmin di dalam handphonenya. Setuju? : Tidak setuju. ….. Q280 : Saya katakan kepada kamu bahawa sebelum taklimat dibuat kamu sudah mendapat maklumat mengenai pengedaran dadah dari sumber kamu iaitu Mokmin. Setuju? : Tidak setuju. Q281 : Saya katakan kepada kamu bahawa maklumat ini yang kamu dapat sebelum tangkapan telah diberitahu oleh OKT 1 kepada kamu nama Mokmin. Setuju? : TIdak setuju. ….. Q287 : Kamu tahu dimana Mokmin sekarang? : Saya tidak kenal Mokmin. Q288 : Adakah kamu tahu Mokmin ataupun Abdul Mokmin Bin Sulaiman masih lagi dipenjara? : Saya tidak tahu. 18 Q289 : Saya katakan kepada kamu bahawa hanya Mokmin yang tahu kandungan karung putih ataupun beg hitam yang mengandungi syabu? : Tidak setuju.” [34] PW10, the investigating officer’s evidence under cross examination stated: “Q433 : Saya katakan kepada kamu bahawa dalam memory handphone ada nombor Abdul Mumin Bin Sulaiman. Setuju? : Tidak setuju. Q434 : Saya katakan kepada kamu bahawa maklumat yang diberikan kepada Inspektor Wahid (PW7) adalah dari Abdul Mumin Bin Sulaiman. Setuju? : Tidak. Q435 : Adakah kamu tahu sama ada Abdul Mumin Bin Sulaiman pernah ditangkap oleh polis? : Tidak. Q436 : Saya katakan kepada kamu bahawa Abdul Mumin ini adalah orang yang wujud? : Tidak. Q437 : Saya katakan kepada kamu bahawa Abdul Mumin Bin Sulaiman pernah dituduh di Mahkamah Lahad Datu atas kesalahan Imigresen. Setuju? : Tidak. Q438 : Saya katakan kepada kamu bahawa Abdul Mumin dijatuhkan hukuman pada 11.02.2015 atas Criminal Case LHD-62PT-197/3-2015 setuju? : Tidak. 19 ….. Q454 : Saya katakan kepada kamu sejurus OKT 1 ditangkap dia ada beritahu pegawai serbuan mengenai Abdul Mumin Bin Sulaiman ataupun Mokmin. Setuju? : Tidak tahu. Saya tidak pernah diberitahu. ….. Q459 : Sebagai Pegawi Penyiasat tahukah kamu bahawa maklumat daripada OKT 2 memaklumkan dalam percakapan tersebut bahawa karung guni telah diserahkan oleh seorang penunggang motorsikal kepada OKT 1 dimana karung tersebut telah diambil daripada depan bakul motorsikal itu? : Ya. Q460 : Sebagai Pegawai Penyiasat, adakah kamu menyiasat lebih dalam mengenai dengan maklumat mengenai dengan seorang penunggang motorsikal memberikan 1 karung guni yang berisi kepada OKT 1? : Tiada maklumat lanjut diterima mengenai penunggang motorsikal cuma timbulkan nama saja. Q : Saya katakan kepada kamu bahawa penunggang motorsikal yang dikatakan oleh OKT 2 ialah Abdul Mumin Bin Sulaiman yang beliau tidak kenali nama tapi OKT 1 mengetahui nama penunggang itu? : Tidak.” [35] Under re-examination, PW10 said as follows: “Q465 : Sebelum hari ini kamu ada pengetahuan atau tidak ke atas penama Abdul Mumin Bin Sulaiman yang dituduh di 20 Mahkamah Lahad Datu sepertimana yang dinyatakan oleh DC 2? : Tidak. ….. Q468 : Rujuk Q461 Notes of Proceeding, saya katakan kepada kamu bahawa penunggang motorsikal yang dikatakan oleh OKT 2 ialah Abdul Mumin Bin Sulaiman yang beliau tidak kenali nama tapi OKT 1 mengetahui nama penunggang itu? : Tidak. Court : Tidak apa, tidak tahu, tidak diberitahu atau apa? : Saya tidak tahu samada Abdul Mumin ini wujud atau tidak.” [36] On a further cross examination by defence counsel, PW10 told the court that he only knew that Abdul Momin was detained in the Tawau Prison after the first appellant gave evidence in court and he (PW10) was asked by the learned DPP to record his (Abdul Momin) statement. PW10 told the court that Abdul Momin was detained under the Immigration Act and nothing to do with the drugs recovered from the Kancil car. PW10 explained that he did not investigate Abdul Momin earlier as the first appellant only inform him (PW10) the name without giving any particulars. At page 319 of the Appeal Record Volume 2(A), PW10 said: 21 “A : OKT 1 ada menyatakan nama Momin. Namun maklumat berkenaan Momin tidak lengkap dan hanya nama saja disebutkan.” [37] In Alcontara a/l Ambross Anthony v PP [1996] 1 CLJ 705 the Federal Court opined that there must be prompt disclosure of the appellant’s defence at time of his arrest or at time he is interviewed and his cautioned statement recorded. Particulars of the appellant’s defence must be supplied in order for an efective investigation to be carried out by the police. The police cannot be blamed for lack of investigation if full particulars were not forwarded promptly to the police. [38] In Teng Howe Sing v. PP [2009] 3 CLJ 733 the Federal Court further elaborate on this same issue on Alcontara’s Notice and failure to disclose earlier all information about the appellant’s defence where Zulkefli Makinudin, FCJ (now PCA) said that: “[30] With regard to the above contention of the appellant it is our judgment that it is misconceived. By commenting on the failure of the appellant to provide all relevant information regarding “Ho Seng” to the police at the time of his arrest or when his cautioned statement (D2) was recorded five days after arrest does not mean that the learned trial judge had imposed on the appellant a duty to speak/disclose them in his cautioned statement nor did he draw any adverse inference against the appellant. The learned trial judge’s comments on the late disclosure of the real identity of “Ho Seng” at the defence stage merely goes to 22 show the weight that the court attached to the appellant’s defence which is permitted by the law. On this point we would like to refer to the case of PP v. Badrulsham bin Baharom [1988] 2 MLJ 585, wherein Lim Beng Choon J at p. 591 said that: … So we are left with nothing more than the bare oral assertion of the accused that it was Noor Azlan who asked him to collect the bag on behalf of the former and that the accused himself had no knowledge of the contents of P3. If that be the case, one would hardly imagine that he would not have told either PW3 or PW5 at the railway station at Alor Setar at the time of his arrest that P3 belonged to Noor Azlan instead of saying that there was nothing in P3. [31] In Badrulsham’s case, the court was of the view that the failure of the accused to inform the raiding officers that the white plastic bag belonged to Noor Azlan at the time of his arrest and only revealing this information during the interrogation two hours after his arrest, goes some way to support the case for the prosecution. [32] Applying the principle in Badrulsham’s case to the facts of the instant case, the learned trial Judge was correct to conclude that the appellant had two opportunities to provide information about “Ho Seng”, ie, at the time of his arrest and five days later during recording of his cautioned statement but he failed to do so. We are therefore of the view that in the circumstances, the appellant’s failure to provide relevant information about “Ho Seng” for the police to carry out a thorough investigation into the probability of his defence, entitled the learned trial judge to disbelieve him.”. [39] Similarly in the present appeal before us, there was belated disclosure by the appellants of the real identity of Abdul Momin. We are 23 of the considered view that the learned JC was correct when His Lordship made a finding that the existence and the purported role of Abdul Momin was a merely manufactured evidence by both the appellants. At pages 40 – 41 of the Appeal Record volume 1, the learned JC stated that: “[63] The existence of Abdul Momin and the role he played as shown in the evidence of the 1st accused could not rebut the presumption of trafficking on the accused. The fact as proved by the Prosecution’s witnesses show that the 1st accused was in possession of the said drug at the time of the arrest. In the circumstances I am of the considered opinion that the non-calling of Abdul Momin, assuming that Abdul Momin exist and the person who was had been identified by the 1st accused was indeed Abdul Momin, is not fatal for Prosecution’s case. [64] Be that as it may, the evidence of the 2nd accused with regard to Abdul Momin had destroyed any probability of the existence or role of Abdul Momin. He (2nd accused) told the Court that he did not inform the police about the presence of Abdul Momin during the investigation. However, in his earlier evidence, he testified that he saw a man on a motorcycle handed over the white sack to the 1st accused. This man was identified by the 1st accused as Abdul Momin. It is also proven that the 2nd accused was seated in the car some ten (10) feet away from Abdul Momin and he could see the whole incident clearly. [65] The 2nd accused then clarified that he did not tell the presence of Abdul Momin to the police because the police did not ask him about Abdul Momin. I find this explanation unreasonable. The 2nd accused was arrested and investigated for a drug trafficking offence which carries a death sentence. If it is true that Abdul Momin exist, the 2nd 24 accused would have informed the police about this fact which is very favourable to his case. Unfortunately, he did not tell the police about this important fact based on a trivial excuse. [66] In circumstances, I am of the opinion that the existence of Abdul Momin and his purported role is a mere manufactured evidence of both the accused.”. [40] On the non-calling of Abdul Momin as a witness during the prosecution’s case, we agreed with learned DPP’s submission that this cannot be done as the particulars and the whereabout of this person were only disclosed during the defence case and when the prosecution wanted to put in Abdul Momin as their rebuttal witness, the defence strongly objected. We are of the view that the prosecution should not be blamed for the non-calling of this witness. Further, we hold that learned JC erred when His Lordship disallowed the prosecution’s moved to call Abdul Momin as their rebuttal witness to rebut defence contention that they were merely an innocent carrier without knowledge and that Abdul Momin was the real trafficker. For the same reason we disagree with the learned defence counsel argument that adverse inference under section 114(g) of the Evidence Act 1950 to be invoked against the prosecution for the failure to call Abdul Momin. Anyway, based on the factual matrix of this case, we do not think that Abdul Momin was an 25 important witness to form part of the narrative of the prosecution’s case (see Munusamy v. PP [1987] 1 MLJ 492). [41] We find all the issues raised by both the appellants devoid of any merit. The learned JC was correct in finding that the defence failed to raise a reasonable doubt on the prosecution’s case and that the prosecution had proved its case against both the appellants beyond reasonable doubt. Conclusion [42] Based on the totality of the evidence, it is our judgment that the convictions of the appellants were safe. We therefore unanimously dismissed the appeal and we affirmed the convictions and sentence of the High Court. Dated: 4th December 2017. Signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia 26 Counsel/Solicitors For the First Appellant: Ram Singh Kamarudin Mohmad Chinki (with him) Messrs Ram Singh & Co No. 27 (Lot 16), Taman Luyang, Phase 2, Jalan Enggang, Lorong Zirafah 2, Luyang 88300 Kota Kinabalu. For the Second Appellant: Datuk Norbert Chin Messrs Norbert Chin & Co 1st Floor, Lot 59(4), Block G, Ruang Singgah Mata 3, Asia City 88300 Kota Kinabalu. For the Respondent: Norinna Bte Bahadun Muhamad Azmi Bin Mashud Deputy Public Prosecutors Attorney General’s Chambers Putrajaya 27