Krishnan Murthy A/L Paidyya v Pendakwa Raya (J-05(M)-7-01/2017 & J-09(M)-9-01/2017)

1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. J-05(M)-7-01/2017 BETWEEN KRISHNAN MURTHY A/L PAIDYYA …APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT HEARD TOGETHER WITH CRIMINAL APPEAL NO. J-05(M)-9-01/2017 BETWEEN GAYATHRY A/P SUBRAMANIAM …APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT (In The Matter Of The High Court Of Malaya At Johor Bahru Criminal Trial No. 45A-31-11/2014 Between Public Prosecutor 2 And

1. Krishnan Murthy a/l Paidyya

2. Gayathry a/p Subramaniam) CORAM: MOHD. ZAWAWI SALLEH, JCA AHMADI HAJI ASNAWI, JCA KAMARDIN HASHIM, JCA JUDGMENT [1] For the purposes of this judgment, the appellant in Criminal Appeal No. J-05(M)-7-01/2017 (Krishnan Murthy a/l Paidyya) will be referred to as the ‘1st appellant’ and the appellant in Criminal Appeal No. J-05(M)-9- 01/2017 (Gayathry a/p Subramaniam) will be referred to as the ‘2nd appellant’. [2] The appeals by both appellants were in respect of their convictions and sentences in the court below on the two following amended charges: 1st Amended Charge: “Bahawa kamu bersama-sama pada 25.5.2014, jam lebih kurang 9.15 malam di alamat 19-08, Block C, Apartment Sri Impian, Jalan Larkin Perdana 1, Larkin Perdana, dalam Daerah Johor Bahru, dalam Negeri 3 Johor Darul Takzim telah didapati mengedar dadah berbahaya campuran Heroin dan Monoacethylmorphines berat bersih 272.14 gram (184.64 gram heroin dan 87.50 gram Monoacethylmorphines). Oleh yang demikian, 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 dibaca bersama seksyen 34 Kanun Keseksaan. 2nd Amended Charge: Bahawa kamu bersama-sama pada 25.5.2014 jam lebih kurang 9.15 malam di alamat 19-08, Block C, Apartment Sri Impian, Jalan Larkin Perdana 1, Larkin Perdana, dalam Daerah Johor Bahru, dalam Negeri Johor Darul Takzim telah didapati mengedar dadah berbahaya jenis Methamphetamine berat bersih 112.96 gram. Oleh yang demikian, 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 seksyen 34 Kanun Keseksaan”. [3] At the end of the hearing, we dismissed the appeals after due consideration of the issues raised and submissions made by both parties. [4] We now furnish our grounds. The Case For The Prosecution [5] On 25.5.2014, SP-6 (ASP Mohd. Zaidi Bin Said) together with a team of narcotic officers (comprising of 7 other members) from Bukit Aman, raided an apartment block at No. 19-08, Block C, Apartment Sri 4 Impian, Jalan Larkin Perdana 1, Johor Bahru. The raid was conducted at about 9.15 p.m. [6] At the location, PW-6 found that the grill door to the said apartment unit was closed but not locked and the main door was opened. SP-6 opened the grill door and entered the said apartment unit with his men. [7] Once inside the apartment unit, SP-6 shouted ‘Police!’ and found both appellants in the hall of the unit. SP-6 found that both were in the state of panick and appeared frightened. [8] SP-6 proceeded to show his authority card to both the appellants upon which both of them turned apprehensive and frightened. [9] The 2nd appellant was the 1st appellant’s girlfriend and both were cohabiting in the said apartment unit. 5 [10] SP-6 then conducted a physical examination on the 1st appellant while a police woman examined the 2nd appellant. No incriminating items were found on both the appellants. [11] The team proceeded to examine the hall of the apartment. They did not find anything incriminating. [12] SP-6 together with other members of his team, next proceeded to investigate the first room. There was a bed and mattress inside the room. SP-6 found a black bag (marked as exhibit P25) with the word ‘Defender’ written on it. The bag was zipped. [13] SP-6 unzipped the said bag and found 8 transparent plastic packets containing substance suspected to be drugs inside the bag, a weighing machine and a plastic heat sealer. [14] SP-6 also found a black and white coloured shoe bag with the word ‘AL’ written on it in the said room. Inside the said shoe bag, SP-6 found 5 transparent plastic packets containing substance suspected to be drugs and a transparent plastic packet containing white crystalline substance. 6 [15] SP-6 then inspected the other rooms inside the said apartment unit but nevertheless, did not recover any drugs. [16] SP-6 then seized from both the appellants several other exhibits, namely their identity cards, electricity bills, 2 set of keys, a tenancy agreement and clothes belonging to both the appellants. [17] The substance suspected to be drugs were sent to the chemist, SP- 2 (Puan Siti Zubaidah bt. Hanapi), for analysis. She confirmed that the same contained Heroin and Monoacetylmorphines weighing 272.14 gram and Methaphetamine weighing 112.96 grams, constituting the subject matter of the two charges (hereinafter referred to as ‘the impugned drugs’). SP-2 also confirmed that the said drugs were dangerous drugs as listed in the First Schedule of the Dangerous Drugs Act, 1952 (hereinafter referred to as ‘the DDA 1952’). [18] At the end of the prosecution’s case, the learned trial judge found that both the appellants had physical possession of the said drugs. The learned trial judge also found that both appellants were presumed to have been trafficking in the said drugs under s.37(da) of the DDA 1952 on 7 account of its weight, until the contrary is proved. The learned trial judge henceforth found that the prosecution had established a prima facie case against both the appellants on the charges proffered and ordered both the appellants to enter their defences. The Defence Of The 1st Appellant [19] Both the appellants contended that they were not in possession of the impugned drugs found in the said room. [20] According to the appellants, it was one Gunalan who was in possession of the same. [21] Gunalan was a friend of Suria Murthy (SD-6), the elder brother of the 1st appellant. [22] There were 3 rooms in the apartment. The master bedroom was occupied by both the appellants whilst the first room was occupied by SD- 6 and the third room was used as a prayer room. 8 [23] Both the appellants had stayed in the said apartment unit for about 2 months before the police raid. [24] The 1st appellant had allowed SD-6 to occupy the first room as SD- 6 was going through a divorce proceedings with his wife. [25] An access card (D55) and a set of house keys (D52) were given to SD-6. SD-6 had a Toyota Camry. [26] From 23.5.2014 to 25.5.2014, both the appellants went for holidays in Melaka. They went with the 1st appellant’s older brother, SD-7 ( Sathia Murthy), and his wife and three of SD-7’s friends. [27] The 1st and 2nd appellant returned home on 25.5.2014 at about 9.00 p.m. [28] When the 1st appellant entered his apartment unit, he saw SD-6 with Gunalan. SD-6 informed him that Gunalan had wanted to put up the night 9 in the apartment by sharing SD-6’s room. Both SD-6 and Gunalan were then about to leave for dinner. This was the first time he had met Gunalan. [29] After both SD-6 and Gunalan left, the 1st appellant joined the 2nd appellant at the hall to rest. [30] Both the appellants were shocked when the police entered their apartment. Both the appellants were physically searched. Nothing incriminating was found on them though. [31] The police then searched SD-6’s room. They found two bags. The bags were brought to the hall together with some documents and some cloths of both the appellants. [32] SP-6 then enquired Gunalan’s whereabouts. The 1st appellant replied that he had gone out with SD-6. [33] The appellants were eventually brought to IPK Johor. The 1st appellant saw Gunalan and three others in the police lock up. 10 [34] The crux of the 1st appellant’s defence was that he had no knowledge of the presence of the two bags in SD-6’s room and as such cannot be said to be in possession of the impugned drugs found in the two bags. [35] In support of the various aspects of his defence, the 1st appellant called SD-3 (Uma Mageswary a/p Subramaniam), SD-4 (Yap Oi San), SD-5 (Sri Raman a/l Appman), SD-6 (Suria Murthy a/l Paidyya) and SD-7 (Sathia Murthy a/l Paidyya). The Defence Of The 2nd Appellant [36] The defence of the 2nd appellant was similar with the defence of the 1st appellant. [37] She testified that she and the 1st appellant and SD-6 had stayed in the said apartment unit for about two months prior to it being raided by the police. 11 [38] The room that was occupied by SD-6 used to be the room where she and the 1st appellant used to keep their unused things. [39] She and the 1st appellant had never entered the said room since the day SD-6 moved in. [40] SD-6 was given a set of keys and one access card (exhibits D52 and D55 respectively). [41] The 2nd appellant reaffirmed that on 23.5.2014, she, the 1st appellant and other relatives had gone to Melaka for holidays and came back to Johor Bahru on 25.5.2014 at about 9.00 p.m. [42] When she arrived at the apartment unit with the 1st appellant, SD-6 and Gunalan were there and were on their way out for dinner. [43] She did not know Gunalan and that was the first time she had met Gunalan. 12 [44] She was told by SD-6 that Gunalan would be putting up the night at the apartment unit, sharing SD-6’s room. [45] After SD-6 and Gunalan left the apartment for dinner, the police team arrived and raided the apartment. The 2nd appellant then reiterated the 1st appellant’s narrative of what happened thereafter. The Appeal Before Us [46] Both the appellants’ raised four (4) grounds of appeal. The main thrust of those grounds can be summarised as follows:

(ii) that mens rea possession of the impugned drugs has not been sufficiently proven against both the appellants. The element of possession was said to be proven merely on account that both the appellants were having the care, control and management of the said apartment unit; 13

(iii) that the non-calling of Gunalan by the prosecution is fatal and warranted the invocation of the adverse inference rule to operate against the prosecution under s.114(g) of the Evidence Act, 1950; and

(iv) that the existence of a common intention under s.34 of the Penal Code against both the appellants had not been proven. Our Decision Ground (i) and (ii) – that the 1st appellant’s defence was not properly appreciated by the learned trial judge and no mens rea possession of the impugned drugs [47] Learned counsel for the 1st appellant submitted that the defence of the 1st appellant was not properly appreciated by the learned trial judge, in particular the evidence of SD-6. Of particular concern was SD-6’s evidence that he was in the midst of divorcing his wife and for that reason he had left his matrimonial home to live with his brother, the 1st appellant, and had occupied the said room (first room) for at least two months prior to the police raid led by PW-6. It was also SD-6’s testimony that on the date in question, Gunalan, a fellow tourist guide from Penang, had asked SD-6’s favour to put up the night in his room. Thereafter, Gunalan had 14 come to the apartment unit, carrying two bags with him and placed the two bags inside SD-6’s room. They next decided to go out for dinner, leaving the two bags behind. As they were about to leave, they met both the appellants who had just arrived home from their holidays. Gunalan was then introduced to both the appellants, having met them for the first time. [48] SD-6 added that he was given a set of house keys and an access card to gain entry into the said apartment by the appellants. SD-6 also said that when he returned to the apartment at about 11.30 p.m., he saw things in the apartment scattered about. He could not reach the appellants and the two bags brought by Gunalan were not in his room. He was told by a neighbour (SD-4) that both the appellants were taken away in handcuffs. He also said that he had return alone to the apartment as Gunalan had followed two Indian men who came and enquired about the two bags while they were having their dinner. [49] Learned counsel for the 1st appellant also submitted that there was no proper appreciation and consideration of the evidence of SD-4 (Mrs. Yap Qi San), the appellants’ neighbour, staying at No 19-07, who had given evidence corroborating the evidence of both the appellants and SD- 15

6. SD-4 confirmed that a person by the name of Suria had stayed in the 2nd appellant’s apartment. She was told by the 2nd appellant that Suria was the elder brother of the 1st appellant, her fiance. She had also met Suria on several occasions. She also said that on a night in May 2014, she had seen both the appellants being taken away in handcuffs. About an hour later, Suria (SD-6) came to her apartment and inquired about the whereabouts of the appellants. [50] Learned counsel also submitted that the testimonies of SD-3 (Uma Mageswary a/p Subramaniam), SD-5 (Sri Raman a/l Appman) and SP-7 (Sathia Murthy a/l Paidyya), who had all testified in court in support of the 1st appellant’s version of the events, were not considered. It was further argued that the testimonies of these witnesses were not challenged. Verily, the learned trial judge had failed to comply with the requirements of s.182A of the Criminal Procedure Code (‘CPC’). [51] It was finally submitted that in the light of the testimonies of the defence witnesses, the prosecution had failed to prove that both the appellants had exclusive possession of the room where the drugs were found as it was occupied by SD-6 at all material times. SD-6 had access to the said apartment unit and the said room and had allowed Gunalan to 16 place the 2 bags carried by him in the room. In all the circumstances of the case, both the appellants had no knowledge of the drugs in the two bags in the room occupied by SD-6. [52] Meanwhile, learned counsel for the 2nd appellant submitted that both the appellants were not in the said apartment unit for a few days as they had spent their holidays elsewhere and on the day in question, they were at home for about 15 minutes before the police arrived. Their conduct of being panicky, apprehensive and frightened upon being approached by SP-6 and his men is no ground to infer that both the appellants knew about the drugs inside the two bags in the said room. It was submitted that it was a natural reaction for both the appellants to have reacted in that manner in all the circumstances of the case. [53] Learned counsel for the 2nd appellant further submitted that the learned trial judge’s finding that since the 1st and 2nd appellant had the exclusive control, care and management of the apartment unit to the exclusion of others, the impugned drugs which were found in the first room hence belonged to both the appellants with knowledge was wrong as the test of knowledge was not done separately. This plainly is a misdirection by way of none direction. It was also submitted that it was equally wrong 17 for the learned trial judge to have found that mens rea possession of the impugned drugs had been proven merely on the basis that both the appellants were having the care, control and management of the said apartment unit. [54] It is not in dispute that the 1st and 2nd appellants were the tenants of the three room apartment unit. At all material times the appellants were occupying the master room, the first room was where the impugned drugs were found and the third room was converted into a prayer room. [55] It was the contention of both the appellants that SD-6 (Suria Murthy) was occupying the said first room, he was given a set of keys and an access card to gain entry into the apartment and the said room, and on the date in issue, Gunalan had come to the said apartment to spend the night in the first room with SD-6’s consent and Gunalan had brought and placed the said two bags containing the impugned drugs he had carried with him in the said room. [56] Hence, from the outset it is very important to determine whether in fact SD-6 was the occupier of the first room. 18 [57] The learned trial judge had deliberated the issue at length and factually found, at p.24, Jilid 1, Rekod Rayuan (‘RR’) that: “Likewise in the instant case, the 1st and 2nd accused have possession of the key and access card to unit 19-08, Block C, Apartment Sri Impian and the 1st room where the impugned drugs were found. SP-6 found no other sign or articles of any human habitation or occupation which condition and state of the apartment unit said that there could not have been other tenant, other occupied or other users. The Court was of the view that the 1st and 2nd accused must have the exclusive possession of the apartment unit and the keys to it must lead to the inevitable deduction that the 1st and 2nd accused have possession custody and control of the impugned drugs in the bag found in the first room. The defence of the 1st and 2nd accused was more of a bare denial that they have knowledge of the impugned drugs found in the bag P25. The Court was of the view their explanation that the first room was used by SD-6 and on the night of the incident one Gunalan had brought two bags one of which was P25 was uncorroborated other then what SD-6 had averred”. [58] Clearly, the learned trial judge had considered the evidence of SD- 6 and had dismissed the same on account of want of corroboration, contrary to the submissions of learned counsels. [59] Earlier, the learned trial judge had referred to a passage from the Federal Court case of PP v Zulkifli Arshad [2010] 6 CLJ 121, where at p.128, the Court agreed with the reasons given by the learned trial judge as to why the drugs found in the third bedroom amount to trafficking by the respondent: “The learned trial judge dealth with the 2nd charge as follows: 19 It was clearly proved that cannabis was recovered from a house that was under the sole control and management of the accused. The latter was proved by the following undisputed facts; (i) that the accused was the tenant of PS31-3. (ii) that the accused had possession of the keys to PS31- 3 and the 3rd bedroom, and (iii) that PS31-3 was a bare and empty house totally bereft of all signs or articles of any human habitation or occupation, which condition and state of PS31-3 said that there could not have been other tenants, other occupiers or other users of PS31-3, and further said that the accused must have had exclusive possession of PS31-3. That the accused had exclusive possession of PS31-3 and the keys to the 3rd bedroom must lead to the inevitable deduction that the accused had possession of the drugs in the 3rd bedroom.” [60] We were in full agreement with the findings made by the learned trial judge. [61] It is pertinent to note that both the appellants did not make any protestation to SP-6 or even later, to the investigating officer, SP-7 (ASP Lalitha a/p Nagarajan), that the impugned drugs did not belong to them, that the said room where the impugned drugs were found was occupied by SD-6 for the past two months and that on the day in issue SD-6 had brought in a fellow tourist guide from Penang, one Gunalan, to put up the night in SD-6’s room. [62] For obvious reasons, common sense would require that the name or names of those of interest to the defence, in particular in cases involving 20 the blame game as here, ought to be revealed at the earliest possible opportunity to avoid it being branded as a recent invention. And, that first possible opportunity to give notice of this defence must occur at the point of the discovery of the impugned drugs in the said first room – see Teng Howe Sing v PP [2009] 3 CLJ 733, at pp. 749-750; PP v Badrulsham bin Baharom [1987] 1 LNS 72; [1988] 2 MLJ 585, at p. 591. [63] Hence, being the core or crux of the defence, it is only to be expected that the factum of SD-6’s occupation of the said room and the presence of Gunalan preceding the police raid should be revealed at the first possible opportunity. Instead, according to SP-6, when the two bags were investigated in the presence of both the appellants and when the impugned drugs were found inside the two bags, both the appellants merely reacted in the following fashion (at p. 59, Jilid 2, RR): “Reaksi kedua-dua penghuni apabila saya jumpa barang kes, mereka kelihatan takut dan cemas. Apabila saya menjumpai barang kes di dalam beg pakaian dan beg kasut, kedua-dua mereka hanya tunduk sahaja….”. [64] Earlier, SP-6 had identified both the appellants as the ‘penghuni’ of the apartment unit. 21 [65] SP-6 had also earlier testified, at p. 58 of the same Jilid, that: “….Selepas ditunjukkan kad kuasa, kedua-dua penghuni kelihatan cemas dan takut…”. [66] It seems to us that the conduct of both the appellants, enumerated above, would suggest that they had knowledge of the drugs inside the said two bags in the first room. The fact that both the appellants “hanya tunduk sahaja” upon the discovery of the impugned drugs, showed their resignation of the fact that the said drugs had been discovered from their possession. [67] We have scrutinised the evidence in its entirety and found no evidence suggesting that Gunalan was to put up the night in the said room upon the concurrence of SD-6. No cloths or other personal items belonging to Gunalan were found in the two bags allegedly brought into the room by Gunalan to indicate that he had wanted to put the night in the said room as would normally and reasonably be done by one who had wanted to put up the night at another’s abode. No other bag was brought in by Gunalan apart from the two aforesaid bags. 22 [68] Hence, on the evidence, we were in full agreement with the findings of the learned trial judge upon the issue of Gunalan’s presence when His Lordship stated at p. 23, Jilid 1, RR of his grounds of judgement: “The Court could not find an iota of evidence which could link Gunalan to the discovery of the drugs in the 1st room. Any reference that the drugs belonged to Gunalan was without any basis. Police did not find any personal belonging of Gunalan such as bag containing his clothes if he had come all the way from Penang and to stay at the said apartment at the material time. It does not make sense”. [69] Likewise, we found no evidence to suggest that SD-6 was also staying in the said room. According to the investigating officer, SP-7, there was nothing to suggest that the said room was occupied by SD-6. SP-7 further stated that the said room was occupied by both the appellants and there were articles belonging to them found in the said room. The arresting officer, SP-6, also could not find any personal items belonging to SD-6. There were no clothes belonging to SD-6. Apart from a bed and mattress, there was also no other article, documentary evidence or otherwise to indicate that the room was occupied by SD-6. The documents that were retrieved were all in either the 1st or 2nd appellant’s name. SP-7 thus testified (at p. 0114, Jilid 2, RR): “Hasil siasatan saya bilik di mana beg mengandungi dadah dijumpai adalah bilik Krishnan Murthy dan Gayathry di mana barang Krishnan dan Gayathry dijumpai di dalam bilik seperti pakaian dan dokumen peribadi dan percakapan owner rumah telah sahkan OKT-1 menyewa rumah 23 tersebut. Hasil siasatan saya, saya tidak menjumpai apa-apa penemuan yang membolehkan ada akses orang lain kepada apartment tersebut”. [70] The fact that two toothbrush were found in the bathroom adjacent to the first room is no indication that SD-6 was staying in the said room. In addition, no DNA profile belonging to SD-6 was found in the apartment unit. Only the DNA profiles of both the appellants were extracted from the clothes and other items retrieved from the apartment unit. The only other DNA profiles were mixed DNA profiles from four other persons taken for purposes of comparison. [71] In regard to the set of house keys and access card, allegedly given to SD-6 by the appellants, the testimony of SP-7 is most pertinent. SP-7 testified that the family members of both the appellants did not have the duplicate keys to the apartment unit. After the 2nd appellant was charged in Court, the family members of the 1st appellant had contacted her (SP- 7) for the keys to the said apartment to remove the belongings of the 1st appellant. SP-7 then returned the said keys to the owner of the apartment and told the family members to get in touch with the owner. This evidence was not challenged. 24 [72] We opined that this evidence had a ring of truth. If it is true that all these while SD-6 had in his possession the set of house keys and access card to the said apartment unit, then there is no need for the family members to approach SP-7 for the keys to the apartment unit to remove the appellants’ belongings. It appeared to us that the house keys and access card that was tendered in Court by SD-6 was procured after the arrest of both the appellants, as was suggested by the learned DPP. [73] The learned DPP further submitted that SD-6 is an interested witness and that the defence will have to bring in SD-6 for SD-6 to bring in Gunalan’s purported role. We were most inclined to agree with her. [74] Nevertheless, on evidence, we agreed that there was a character called “Gunalan” and according to SP-7, this “Gunalan” was arrested elsewhere at a snooker centre. Her investigation though, revealed that this Gunalan had nothing to do with the discovery of the impugned drugs in the first room. We have no cogent reason to disbelieve SP-7’s testimony. 25 [75] As regards to SD-4, a tenant occupying unit No. 19-07, Block C, Apartment Sri Impian, Larkin, who had claimed to be the immediate neighbour of both the appellants, the prosecution’s challenge was pivoted upon the contention that she was never a neighbour of both the appellants on account that she was not even able to produce the tenancy agreement entered between her and the owner of the said apartment unit, a gentleman whom she called Uncle Chong. On the other hand, SP-7’s testimony regarding the same apartment unit allegedly tenanted by SD-4 at p. 0122, Jilid 2, RR, was unchallenged: “Nama jiran yang saya rakam ialah Towiyah. Saya ada rakam percakapan Towiyah, alamat iaitu di Blok C, 19-07, Apartment Impian. HP No. 017-29677070. Selain warga asing, ini kemungkinan sukar untuk datang”. [76] We were in full agreement with the learned DPP. It is rather strange these days for one to have entered into a tenancy agreement without a written agreement. It is also quite strange for SD-4 to have known SD-6 by his name “Suria” and knew that Suria is the elder brother of the 1st appellant as told to her by the 2nd appellant but nevertheless, did not know the 1st appellant’s name, who was then the 2nd appellant’s boyfriend. 26 [77] It appeared to us that the evidence of SD-4 harboured too much of a coincidence to carry much credence. In our appellate capacity, we are of course competent to make such findings on account that the proceedings before us is a continuation of the proceedings before the learned trial judge. [78] We were satisfied that the prosecution had proven that both the appellants had exclusive care, control and management of the said apartment unit where the impugned drugs were found and hence had possession of the impugned drugs. The submission that SD-6 was occupying the said room where the impugned drugs were found is a non-starter. Hence, on the facts as enumerated above, the failure of the learned trial judge to consider the evidence of SD-4, SD-6 and the other witnesses called upon by the defence, is not fatal. Nevertheless, the learned trial judge had indeed considered the evidence of SD-6 though not in the fashion as demanded by learned counsels. [79] Be that as it may, the evidence is overwhelming to indicate that both the appellants were having mens rea possession of the impugned drugs to wit, it is not disputed that the appellants are the tenants of the apartment unit ; the Tenancy Agreement is under the name of the 2nd appellant ; the 27 appellants had the access key to the apartment ; the appellants had sole custody, control, management and exclusive possession of the said apartment unit ; and, the drugs were found in the first room of their apartment unit. In such event it must lead to the inevitable deduction that the appellants had possession of the drugs in the first room (see – PP v Zulkifli Arshad (supra)). By virtue of its weight, both of them were presumed to have been trafficking the said drugs under s.37(da) (iiia) and

(xvi) of the DDA 1952. Ground (iii) – Invocation Of The Adverse Inference Rule Against The Prosecution Under Section 114 (g) Of The Evidence Act, 1950 [80] Learned counsel for the 2nd appellant submitted that the evidence of SP-7 revealed that Gunalan was arrested together with four other Indian males. The DNA profiles of these five persons were collated. Gunalan’s name also appeared in exhibit D54, a letter written by SD-6 to SP-7 offering himself to be a witness in the case. Gunalan’s name also appeared in the Chemist Report, exhibit D49 (on DNA analysis). Gunalan’s name was also frequently mentioned by both the appellants and SD-6. 28 [81] Thus, it was submitted that in such event, Gunalan is a very important witness for the prosecution and must testify for the prosecution or at the very least offered to the defence. None of these were initiated by the prosecution. Hence, it is not only proper but equally timeous to invoke the presumption under s.114 illustration (g) of the Evidence Act, 1950, to operate against the prosecution. [82] It is trite law that the business of calling witnesses to the stand is entirely a prosecutorial discretion subject only to the condition that there should be no oblique motive or suppression of evidence (see Khoon Chye Hin v PP [1966] 27 MLJ 105) ; that the full narrative/onus of proof is fully discharged (see Abdullah Zawawi v PP [1985] 2 MLJ 6) ; and the materiality/essentiality of the witnesses to the prosecution case. Where the witnesses not produced are not material or where the evidence to be given is largely redundant, no presumption under s.114 illustration (g) operates against the prosecution (see – Chua Keen Long v PP [1996] 1 SLR 510). The Supreme Court in Munusamy v PP [1987] 1 MLJ 492, further laid down the rule, amongst others, that adverse inference can only be drawn for non-production of not just any witness but an important and material witness to the prosecution. 29 [83] We have scrutinised the facts and evidence and agreed with the prosecution’s submission that Gunalan was not arrested together with both the appellants but elsewhere at a snooker centre, without the two bags. It was the testimony of SP-7 that the said Gunalan had nothing to do with the drugs found in the two bags inside the first room. [84] It thus appeared that in so far as the prosecution is concerned, Gunalan is neither material nor essential for the prosecution to unfold its narrative and establish its case. [85] It is also apparent that the prosecution’s case was grounded firmly upon the testimonies of SP-6 and SP-7. And, the Court is not in the business of questioning the prosecution’s preference of which witness to be called to the stand. [86] Hence, as long as SP-6 and SP-7 were able to give evidence of the commission of the offence of trafficking the said drugs by the appellants, which we found that the prosecution had successfully established so, there is absolutely no reason why Gunalan should be called to testify, nor why any presumption should be invoked that his evidence, if produced, 30 would have been against the prosecution. Gunalan was not called simply because the prosecution’s case was never grounded upon his testimony. Equally, he was not called because the essentiality and materiality of his evidence was of no significance and was never part of the prosecution’s narrative. [87] We were also satisfied that there has not been any suppression of evidence nor oblique motive on the part of the prosecution in not calling Gunalan. Equally, we found the onus of proof has been fully discharged. Thus the failure to call Gunalan or to offer him to the defence is no ground to warrant the invocation of the presumption under s.114 illustration (g) of the Evidence Act, 1950, against the prosecution. [88] The defence version that it was Gunalan who had brought in the two bags containing the impugned drugs and had placed the two bags in the said room has no leg to stand on upon the grounds enumerated in the earlier paragraphs (in respect of the discussion relating to Grounds (i) and

(ii) of the appeal). Further it is preposterous to expect Gunalan to come to the stand and declare that the two bags containing the impugned drugs were brought by him. No amount of cross-examination would change his stand. 31 [89] Verily, on the evidence adduced, we were with the learned trial judge when he found, at p. 23, Jilid 1, RR: “The fact that SD-6 has the other access card key to the apartment unit was immaterial because it was not the defence case that the drugs found in the room occupied by SD-6 belonged to SD-6. Instead the drug belonged to Gunalan. So where was the tangible evidence found at the scene of the crime i.e in the said room which could point to Gunalan having brought the 2 bags and stayed in the said room other than an averment by the 1st, 2nd accused and SD-6. The fact that Gunalan was also arrested at a different place after the raid at the apartment unit does not mean that Gunalan was implicated with the discovery of the drugs in the apartment unit. The Court has to decide based on cogent tangible evidence and not on mere conjecture that Gunalan could have stayed in the said room where the drugs were found just because his named was mentioned by the 1st, 2nd accused and SD-6. The Court could not find an iota of evidence which could link Gunalan to the discovery of the drugs in the 1st room. Any reference that the drugs belonged to Gunalan was without any basis. Police did not find any personal belonging of Gunalan such as bag containing his clothes if he had come all the way from Penang and to stay at the said apartment at the material time. It does not make sense….” [90] For all the reasons given, we opined that under these circumstances, the presumption under s.114 illustration (g) of the Evidence Act, 1950, does not apply against the prosecution. Ground (iv) – Prove Of Common Intention [91] In his ground of judgment at p.15, Jilid 1, RR, the learned trial judge found: 32 “On the issue of common intention, the Court found that the prosecution too has succeeded in proving that there was evidence that the 1st and 2nd accused had a prior concert or pre-planned in the participation in an offence. Common intention can be formed previously or in the course of the occurrence and in the spur of the moment. The existence of a common intention is a question of fact in each case to be proved as a matter of inference from the circumstances of the case. In the instant case from the facts could be inferred to suggest there was a prior concert or pre-planned in the participation of the offence in that the impugned drugs were found in the 1st room where the 1st and 2nd accused had exclusive care and management of the said room with the knowledge of the existence of the drugs in the two bags”. [92] We were with the learned trial judge on the aforesaid exposition of the law on common intention (see – Mahbub Shah v Emperor, AIR 1945 PC 118 ; Sabarudin b. Non & Ors v PP [2005] 4 MLJ 37 ; Manikumar Sinnappan & Ors v PP [2017] 3 CLJ 505 ; Dato’ Mokhtar b. Hashim & Anor v PP [1983] 2 MLJ 232 ; Farose Tamure Mohamad Khan v PP & Other Appeals [2016] 9 CLJ 769 ; [2016] 6 MLJ 311). Nevertheless, the learned trial judge’s findings of the existence of a common intention in furtherance of the commission of the said offence by both the appellants was criticised by learned counsel for the 2nd appellant on the grounds that there cannot be a common intention when both the appellants had no knowledge of the drugs inside the two bags in the room occupied by SD-

6. 33 [93] We do not wish to repeat the discussion on whether SD-6 was the occupier of the said first room where the drugs were found at the material time. Suffice for us to fall back on our earlier concurrent finding with the learned trial judge that there was no evidence that the said room was occupied by SD-6 and that the evidence was overwhelming that only both the appellants had the sole custody, control, management and exclusive possession of the said apartment unit and hence the inevitable deduction must be drawn that the appellants had possession of the impugned drugs in the said room. [94] Nonetheless, on the facts and evidence, there were overwhelming evidence that the appellants had committed the offence in furtherance of the common intention of all. Both the appellants were the tenants and occupiers of the said apartment unit ; the keys and access card to the apartment were with them ; the door to the said room was not locked at the time of the police raid ; and, both the appellants had full control, management, exclusive use and access of the apartment and the three rooms therein. Both the appellants were so situated to the impugned drugs that they have the power to deal with it to the exclusion of all other persons, and when the circumstances are such that they may be presumed to intend to do so in case of need (see – Chan Pean Leon v 34 PP [1956] 22 MLJ 237). The evidence is more than sufficient to fasten both the appellants with possession of the impugned drugs. [95] In addition, both the appellants themselves would have special knowledge of the drugs inside the said room (see s.106 of the Evidence Act, 1950). In our view, the irresistible inference from such situation overwhelmingly points to the presence of the meeting of minds of both of them to commit the offence with common intention as found by the learned trial judge, enumerated above. There was no failure by the learned trial judge to direct his mind on the issue of the pre-arranged plan to commit the offence by both the appellants. Conclusion [96] We found no merit in the appeals by both the appellants. We found their convictions to be safe. Hence, the appeals against their convictions are dismissed and the sentences handed down upon them by the High Court are affirmed. So ordered. 35 Dated: 4th December 2018 ( AHMADI HAJI ASNAWI ) Judge Court of Appeal, Malaysia Counsel Solicitors:- For the 1st Appellant: Hisham Teh Poh Teik T/N Teh Poh Teik & Co. Peguambela & Peguamcara For the 2nd Appellant: Afifuddin Ahmad Hafifi T/N Salehuddin Saidin & Co. Peguambela & Peguamcara For the Respondent: Mangai Mahandran Timbalan Pendakwa Raya Jabatan Peguam Negara 62100 Putrajaya