Mogan Raj a/l Ravi v Pendakwa Raya (W-05(M)-431-09/2017, W-05(M)-434-09/2017, W-05(M)-435-09/2017)

1 CRIMINAL APPEAL NO. W-05(M)-431-09/2017

1. MOGAN RAJ A/L RAVI

2. SHANKAR A/L MUTHUSAMY … … CRIMINAL APPEAL NO. W-05(M)-434-09/2017

1. MOGAN RAJ A/L RAVI

2. SHANKAR A/L MUTHUSAMY … … CRIMINAL APPEAL NO. W-05(M)-435-09/2017

1. MOGAN RAJ A/L RAVI

2. SHANKAR A/L MUTHUSAMY … … 2 [In The High Court Of Malaya At Kuala Lumpur Criminal Trial No.: 45A-86-12/2016, 45-34-05/2017 & 45-35-05/2017 Public Prosecutor Vs.

1. Mogan Raj a/l Ravi

2. Shankar a/l Muthusamy] CORAM: RHODZARIAH BINTI BUJANG, JCA MOHAMAD ZABIDIN BIN MOHD DIAH, JCA RAVINTHRAN A/L PARAMAGURU, JCA JUDGMENT [1] The two appellants in all the three appeals listed above were charged and convicted of a total of six charges, four under the Dangerous Drugs Act 1952 (“DDA”) and two under the Firearms (Increased Penalties) Act 1971 (“Firearms Act”) which were separately registered in three cases. Hence, the three appeals now before us. The details of the charges and registration numbers here and below are as follows:-

(ii) Appeal No. W-05(M)-434-09/2017 / 45-34-05/2017 Bahawa kamu bersama-sama pada 17/05/2016 lebih kurang jam 03.45 petang bertempat di rumah bernombor 3, tingkat 23, Duta Ria Kondominium, Jalan Dutamas Raya, dalam Daerah Sentul, dalam Bandaraya Kuala Lumpur, Wilayah Persekutuan telah didapati dalam milikan kamu dadah merbahaya iaitu heroin dan monoacetylmorphines (berat bersih) 3.61 gram. Oleh itu kamu telah melakukan satu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum 4 di bawah Seksyen 39A (1) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan.” Bahawa kamu bersama-sama pada 17/05/2016 lebih kurang jam 03.45 petang bertempat di rumah bernombor 3. tingkat 23, Duta Ria Kondominium, Jalan Dutamas Raya, dalam Daerah Sentul di dalam Bandaraya Kuala Lumpur, Wilayah Persekutuan telah didapati didalam milikan kamu dadah berbahaya iaitu cannabis (berat bersih) 17.61 gram. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah Seksyen 6 Akta Dadah Berbahawa 1952 dan boleh dihukum di bawah Seksyen yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan.”

(iii) Appeal No. W-05(M)-435-09/2017 / 45-35-05/2017 Bahawa kamu bersama-sama pada 17/05/2016 jam lebih kurang 3.45 petang di rumah bernombor 3, tingkat 23, Duta Ria Kondominium, Jalan Dutamas Raya, dalam Daerah Sentul, Wilayah Persekutuan Kuala Lumpur, di dapati dalam milikan kamu terdapat senjata api iaitu sepucuk pistol jenis GLOCK 19 GEN 4 MADE IN AUSTRIA – Nombor siri SRN 245 yang di simpan di atas siling bilik air di dalam bilik tidur utama. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 8 Akta Senjata Api (Penalti lebih berat) 1971 dibaca bersama Sek 34 Kanun Keseksaan.” Bahawa kamu bersama-sama pada 17/05/2016 jam lebih kurang 3.45 petang di rumah bernombor 3, tingkat 23, Duta Ria Kondominium, Jalan Dutamas Raya, dalam Daerah Sentul, 5 Wilayah Persekutuan Kuala Lumpur, telah melakukan kesalahan memiliki amunisi, iaitu satu kelopak peluru warna hitam mengandungi 10 butir peluru hidup jenis 9mm LUGER jenis AP 14 dan 36 butir peluru hidup jenis 9mm LUGER jenis AP 14 yang dibungkus dalam plastik warna merah jambu yang disimpan di atas siling bilik air di dalam bilik tidur utama. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 8(a) Akta Senjata 1960 (Akta 206) yang boleh dihukum di bawah Seksyen 8 Akta yang sama dibaca bersama Sek 34 Kanun Keseksaan.” [2] For the first appeal, the appellants were sentenced to death in respect of both charges. For the second appeal, it was four years imprisonment for the first charge and two years imprisonment for the second charge. In respect of the third appeal, it was ten years imprisonment for the first charge and five years imprisonment for the second charge. All imprisonment terms were ordered to run from the date of arrest by the learned High Court Judge (HCJ). [3] We heard the three appeals on the 18/11/2019 and affirmed the convictions and sentences passed by His Lordship in respect of the second and the third appeal except on the effective dates of the imprisonment terms. However, for the first appeal we substituted both convictions with that of possession under section 6 of the DDA which is punishable under section 39A (2) and sentenced each of the 6 appellants to 15 years and 10 strokes of the rotan for the first charge and eight years and ten strokes of the rotan for the second charge to take effect from the date of arrest and to run concurrently with the sentences passed in the second appeal but consecutive to those passed in the third appeal. Both appellants as well as the respondent (Public Prosecutor) are aggrieved with our decision and have filed their respective notices of appeal against it. That of the Public Prosecutor was only against both the sentences that we passed in respect of the substituted convictions in the first appeal. The Prosecution Case [4] The discovery of the drugs, pistol and bullets which led to the arrests of the two appellants in a condominium unit in Duta Ria Condominium as stated in the charge, which we would henceforth refer to as Unit 3, was precipitated by the arrest of one Murugaya a/l Raguvathy (“Murugaya”) by a team of police personnel led by ASP Shaiful Hezreen Bin Shahriman (PW2). The detention of Murugaya was at the carpark of the said Condominium whilst he was in a Perodua Myvi car with registration number W3232Q and PW2 did so based on information received on drug activities of a suspect using that car. After his arrest, PW2 and his team were led by Murugaya to his condominium unit (Unit 4) which was on the same floor as that of 7 Unit 3, that is, the 23rd floor and which is right beside it. This was after PW2 found a set of keys in Murugaya’s right trouser pocket. From their raid in that Unit 4, PW2 found four packets of methamphetamine, one packet containing suspected two Estacy pills and one packet of suspected cannabis. A tenancy agreement for Unit 3 was also found there which aroused PW2’s suspicion and prompted him to go over and knocked on its door a few times. When that went unanswered, he went back to Unit 4 and from the balcony of that Unit 4 (which he described as a ‘corridor’ in his evidence) he saw two men running into a room in Unit 3. PW2 then ordered two of his men, Lance Corporal Danial and Constable Khairul Izwan to leap over from the said balcony of Unit 4 to Unit 3 which they did. Thereafter Constable Khairul Izwan proceeded to open the door to Unit 3 for PW2 and the rest of their team to enter. [5] PW2 then went to the very room that he saw the two men entering which was the master bedroom and found both the appellants hiding at the side of the bed there. When asked by PW2 whether they kept anything illegal in Unit 3, they both kept quiet. Their subsequent check of Unit 3 disclosed the drugs as per the charges above at the following places: 8

(ii) A bag brand ‘CONVERSE’ below the first door of the kitchen cabinet with 10 slabs of cannabis;

(iii) A bag containing 4 plastic packets with the words ‘Sky Net’ written on the packets containing slabs of cannabis; and

(iv) 2 plastic packets of heroin and 2 plastic packets of slabs of cannabis. [6] In the ceiling of the toilet in the said master bedroom of Unit 3 were found the pistol with the 10 bullets and a package containing the 36 live bullets, which were the subject matter of the charges under the Firearms Act. The pistol upon examination by Insp. Mohd Riyad Solehin Abd Rahim (PW10) was found to be serviceable. [7] Other than the above evidence, the prosecution also relied on the evidence of PW2 who testified that a set of keys which includes that to the main door of Unit 3 were found in the trouser’s pocket of each of the appellants and from the 2nd appellant, the access card to 9 the condominium complex were also found with his set of keys. The 2nd appellant’s set of keys includes one for the master bedroom and two other rooms in Unit 3. Further evidence tendered against the 2nd appellant came from the testimony of the chemist, Nurul Hamizan Abdul Hamid (PW11) who said the 2nd appellant’s DNA was found on a tooth brush [Exh. P57(7)] and a towel [Exh. P57(1)] and where for that latter item he was the main contributor. Both these items were seized from Unit 3 by Detective Sargent Mohamad from the Forensic Unit. As for the 1st appellant, the prosecution also relied on the discovery of two bank account books from CIMB Bank found on the dressing table in the master bedroom and a bank statement in his name in a bag found on a table next to the window in the said bedroom. [8] The prosecution also called one Jasmit Kaur (PW4), Liew Lai Beng (PW5) and Choon Hoong (PW7) to testify against the two appellants. PW4 was legally the tenant for Unit 3 and a tenancy agreement (Exh. P17B) was tendered as evidence by the prosecution. The landlord was one Mohammad Azmi Bin Mohd Dahlan. However PW4 denied that she signed on that agreement although she confirmed that her identity card number and name on the agreement are correct. She said she had given a photocopy of her identity card 10 to the 1st appellant in order to borrow RM2,000.00 for her husband’s treatment at Institut Jantung Negara. PW5 was the estate agent who prepared the tenancy agreement and testified that he dealt with the 1st appellant who wanted to rent Unit 3 for his staff and later gave him a photocopy of PW4’s identity card. He said he passed 5 sets of Unit 3’s keys to the 1st appellant including the front door key. A photograph of 5 sets of keys and access card is also attached to the agreement (see pages 65 – 66 of the Appeal Record Volume 3) which supports PW5’s further evidence about the handing over of the keys with the tenancy agreement to the 1st appellant. He also said he never met PW4 despite his repeated request to the 1st appellant to do so and it was the 1st appellant who handed Exh. P17B to him after the purported execution by PW4. PW5 also said the landlord was in Philippines at that time and one Yeow Guat Lee (PW8) signed on behalf of the landlord based on a letter of authorization from him. [9] As for PW7, he testified that at that material time, he stayed on the same 23rd floor of the condominium but the sixth unit which was right in front of the Unit 3 and 4. His evidence is that he had seen the two appellants going in and out of Unit 3 and 4 but could not confirm if they both stayed in that Unit 3. 11 [10] Based on the aforesaid evidence, the learned HCJ found both the appellants had custody and control of the drugs as stated in the charge and raised both the presumptions under section 37(d) and 37(da)(vi) of DDA against them to prove the elements of possession and trafficking as required under the charge. [11] In respect of the pistol and bullets, His Lordship based his finding that they both had possession and knowledge of the same because of these four facts: “(i) OKT1 and OKT2 tidak membuka pintu utama unit 23-3 apabila diketuk oleh pihak polis.

(ii) OKT1 dan OKT2 berlari ke bilik tidur apabila SP2 menjenguk dari koridor luar unit 23-3.

(iii) OKT1 and OKT2 bersembunyi di tepi katil dalam bilik tidur utama unit 23-3 berkenaan.

(iv) OKT1 dan OKT2 hanya berdiam diri apabila ditanya sama ada terdapat barang salah dalam rumah tersebut tanpa menafikannya.” [12] The learned HCJ also used the same evidence as stated above to find evidence of common intention against them and in paragraph 26 of his judgment, His Lordship stated clearly that he was not relying on the DNA evidence tendered at the trial because the Forensic Officer who took the samples for the DNA test were not called to give 12 evidence. His Lordship also dealt with the contradictions in the evidence of PW5, PW9, PW2 and PW4 raised by the defence at paragraphs 32 – 37 of his judgment and found that the said contradictions were not material so as to affect the credibility of the witnesses. Thus, the learned HCJ ruled that a prima facie case has been made out by the prosecution against both appellants. The Defence [13] Both the appellants gave sworn evidence and tendered their caution statements (Exhs. D76 and D77 respectively). Their common defence is that both were staying in Unit 4 with Murugaya who was the 1st appellant’s sales manager in the rental car company, MS Carworld owned by the appellants. The 1st appellant stayed in the master bedroom with his girlfriend, Renuka Devi (DW3) and the 2nd appellant and Murugaya in the other two rooms, respectively. The 2nd appellant said he paid the 1st appellant RM500.00 per month as rental for his room. On the day in question, both of them were in Unit 4 when the police brought Murugaya to the said Unit 3 and then all of them were brought to Unit 3 which was rented by Murugaya for his uncle after one of the policemen found the key to Unit 3 in Murugaya’s room. The 1st appellant also claimed that his two CIMB Bank 13 books and bank statement were found in his room in Unit 4 and not in Unit 3 as testified by PW9. The tenancy agreement for Unit 3 was in fact found on the table in Unit 3 and not in Unit 4, said the appellants. [14] Both appellants denied any knowledge of the drugs, pistol and bullets found in Unit 3 and testified that Murugaya told them that if they each pay RM200,000.00 they could be released and Murugaya’s uncle, whom the 1st appellant said had once in a while visited Unit 3 as told to him by Murugaya, could help to facilitate the said release. DW3, corroborated their evidence above and said as did the appellants that in 2015, Murugaya’s uncle did stay in Unit 3 for a week with his family during the school holidays. In short, their defence is that Murugaya was the actual culprit for he was in possession of Unit 3 and hence all the drugs, pistol and bullets found therein. [15] We pause here to note that Murugaya was not called by the prosecution at the trial but offered to the defence at the close of its case. However, they failed to produce him when the defence accepted the offer because he was missing. We noted from page 116 of the Appeal Record titled ‘Rekod Rayuan Tambahan (Nota Keterangan)’, it was recorded that after learned counsel for the 14 appellants raised the issue that Murugaya was not made available to them, the learned Deputy Public Prosecutor (“DPP”) wanted to recall PW9 to explain the actions he had taken on this but this request was refused by the learned HCJ. However, in his judgment, the learned HCJ specifically considered the absence of Murugaya and held at paragraph 65 that the undeniable fact is that Murugaya was never in Unit 3 when the police raided the place. Then in paragraphs 67 – 69 His Lordship said as follows: “[67] Sehubungan itu, bagi saya, jika Murugaya dapat dikemukakan, keterangan membantu OKT1 dan OKT2 yang besar kemungkinan dinyatakan oleh beliau antaranya adalah:

(ii) Murugaya menyewa unit 23-3 untuk pakchiknya.

(iii) Kunci unit 23-3 tersebut ada pada Murugaya yang diambil oleh polis dari biliknya semasa serbuan di unit 23-4. [68] Pada pandangan saya, isu-isu ini telah dihuraikan sebelum ini berdasarkan keterangan yang dikemukakan oleh OKT1 dan OKT2 dalam pembelaan mereka dan dapatan saya, ianya bertentangan dengan keterangan yang ada dan dapatan fakta telah dibuat berhubung isu-isu berkenaan. [69] Sehubungan itu juga, keterangan Murugaya jika hadir memberi keterangan tidak dapat membantu kes pembelaan untuk menimbulkan keraguan yang munasabah terhadap kes 15 pendakwaan. Oleh itu juga, kegagalan pendakwaan mengemukakan saksi Murugaya ke mahkamah tidak memprejudis kes pembelaan. Tambahan pula, mahkamah telah dimaklumkan bahawa Murugaya tidak dapat dikesan untuk dibawa ke Mahkamah.” [16] As for the defence, after due consideration of the evidence, the learned HCJ found that both appellants have failed to rebut the two presumptions raised by His Lordship and equally failed to raise any reasonable doubt on the prosecution’s case in respect of all the charges framed against them. His Lordship’s reasons for that conclusion as stated by him in paragraph 66 are as follows: “[66] Asas dapatan saya ini berasaskan keterangan saksi-saksi pendakwaan dan seterusnya keseluruhan keterangan setelah pihak pembelaan memberi keterangan. Dapatan saya antara lain adalah:

(ii) Kelibat OKT 1 dan OKT2 dilihat dari koridor luar unit 23- 4, berlari ke dalam bilik di rumah unit 23-3.

(iii) OKT1 dan OKT2 kemudian ditemui bersembunyi di dalam bilik tidur utama unit 23-3 setelah sebelum itu pintu unit 23-3 tersebut tidak dibuka apabila diketuk oleh pihak polis.

(iv) OKT1 yang menyewa unit 23-3 atas nama SP4 yang mana SP4 tiada pengetahuan mengenainya dan kad 16 pengenalan SP4 telah digunakan untuk penyewaan unit ini.

(vi) Keterangan bahawa OKT1 dan OKT2 tiada di unit 23-3 semasa serbuan dibuat tidak dapat diterima berasaskan keseluruhan keterangan. Saya juga telah mempertimbangkan pernyataan beramaran kedua-dua OKT iaitu D76 dan D77 dan dapatan saya berdasarkan keseluruhan keterangan adalah pembelaan OKT1 dan OKT2 ini menjurus kepada penafian bahawa mereka tidak berada di unit 23-3 ketika pihak polis membuat serbuan.” [17] The learned HCJ in his earlier consideration at paragraph 56 have held that the evidence of PW2 seeing a glimpse of two persons running to the room in Unit 3 is not inherently improbable and that there was no reason for PW2 to make up his evidence to frame both appellants. He was just doing his job as a police officer to curb drug activities and the defence of both appellants that the police were not in Unit 3 was a mere denial. [18] Further, said His Lordship, their contention that Unit 3 was rented for Murugaya’s uncle was never brought up during the prosecution case but only in the defence. His Lordship then 17 scrutinized the material aspect of PW4’s and PW5’s evidence as stated earlier and held that as uninterested witnesses they have no reason to fabricate their evidence against the appellants. The Appeal [19] Before us, learned counsel for the appellants centered his submission on two main issues, that is, the invocation of the double presumptions and the failure of the learned HCJ to appreciate the defence case. In connection with that latter issue, learned counsel highlighted to us the respondent’s failure to make available Murugaya to them to be called as their witness and another failure to call the two named policemen who jumped over the balcony of Unit 4 to Unit 3. The consistency of the caution statements of both appellants Exh. D76 and Exh. D77 respectively appearing at pages 186 to 189 of Volume 3 of the Appeal Record with their testimonies in court was also highlighted to us as evidence of the credibility of the defence. We would start our consideration with this last issue first. Consideration Of The Defence [20] As stated earlier the crux of the defence is that the appellants were arrested in Unit 4, not Unit 3, and had nothing to do with that Unit

3. Also as narrated earlier, in their respective testimonies the 18 appellants said that it was Murugaya who rented that Unit 3 for his uncle who visited it once in a while and who even stayed there one week in 2015. In other words, the evidence of PW2 implicating them was totally fabricated. [21] With respect, we could not find the evidence to impute any motive on PW2 to lie in court and implicate the two appellants. The learned HCJ who had the audio-visual advantage which we do not possess had made a specific finding on his credibility and we have no reason to disparage that finding of His Lordship. As held by the Federal Court in Lai Kim Hon & Ors v Public Prosecutor [1981] 1 MLJ 84: “The principle of law governing appeals in criminal cases on questions of fact is well established, in that the Appeal Court will not interfere unless the balance of evidence is grossly against the conviction especially upon a finding of a specific fact involving the evaluation of the evidence of a witness founded on the credibility of such witness.” [22] This caution was also reiterated by the Federal Court in Chew Wai Keong & Anor v Public Prosecutor & Another Appeal [2018] 3 CLJ 681 where the court held as follows: 19 “It is trite law that the view of the trial judge as to the credibility of a witness must be given proper weight and consideration. An appellate court should be slow in disturbing such finding of fact arrived at by a trial judge, who had the advantage of seeing and hearing the witness, unless there were substantial and compelling reasons for disagreeing. (per Hasan Lah FCJ in Amri Ibrahim & Anor v. PP [2017] 1 CLJ 617).” [23] Furthermore, there is authority from our apex court in Md Zainudin Raujan v Public Prosecutor [2013] 4 CLJ 21 which affirmed a drug trafficking conviction based on the sole testimony of a police witness, PW5 whom the trial judge had found to be a credible witness and whose evidence, held the Federal Court is not required by law to be corroborated. Given the same circumstance in this case before us, including the non-calling of other police witnesses present at the scene, we are moved to apply the ratio decidendi in the said case on the assessment and credibility of a witness here. [24] As for the failure to call Murugaya and the two policemen who jumped from Unit 4 to Unit 3 (particularly in respect of Murugaya), which according to the appellants’ petition of appeal raises an adverse inference under section 114 (g) of the Evidence Act 1950 against the respondent, it is salutary to remember that the Supreme Court in Munusamy Vengadasalam v PP [1987] 1 MLJ 492 have stated that the invocation of that section is only when there has been withholding 20 or suppression of the evidence and not merely for failure to adduce such evidence. Further, it is the prosecutorial discretion on which witness it should call to prove its case against an accused beyond reasonable doubt as held by the same court in Abdullah Zawawi Omar v PP [1985] 2 MLJ 16. As was further elucidated in Ghazalee Kassim & Ors v Public Prosecutor [2009] 4 CLJ 737: “[19] The court will only invoke s. 114(g) of the Evidence Act for failure to call a witness if it is of the opinion that the prosecution does so to withhold or suppress evidence which, if produced could be construed against the prosecution or otherwise in favour of the accused. The prosecution can also, in the alternative, offer to the defence any witness which they do not wish to call. As to which witness the prosecution chooses to call is entirely up to them. Calling a wrong witness may be detrimental to their case. The same goes if they fail to call a material witness. This is where s. 114(g) of the Evidence Act may be invoked by the court.” (emphasis added) [25] The learned DPP submitted and we do agree with her that Murugaya is not a material witness for them because he was not arrested in Unit 3 although going by the defence he was crucial to theirs because as stated by the learned HCJ, Murugaya’s evidence may corroborate their defence that both appellants were arrested in Unit 4, that Murugaya rented Unit 3 for his uncle and Unit 3 was opened with a key obtained from him. Learned counsel for the 21 appellants in his oral submission before us said that there was no attempt made to trace him which we could not agree because his absence at the trial would have been satisfactorily explained had the learned HCJ allowed the recall of PW9 do so which regrettably was not done but which rejection, in our view does not impact negatively on the prosecution’s case. [26] In saying this we appreciate learned counsel’s submission based on this court’s decision in PP v Asnawi Yusuf [2012] 3 CLJ 41, [2011] 4 MLJ 16 where it was held that “it is the bounden duty of the prosecution to secure the attendance of witnesses once they were offered as witnesses to the defence.” However this must be tied to the efforts (or the lack of them) made by the prosecution to do that. In other words, that adverse reference could not be raised simply on a per failure se to make an offered witness available to the defence and in this case before us it was no fault of the prosecution that such evidence was not presented to the court. The refusal by the learned HCJ to recall PW9 to explain his efforts to trace Murugaya may amount to a misdirection but the Federal Court in Tunde Apatira & Ors. v Public Prosecutor [2001] 1 CLJ 381 held, after considering the proviso to section 92 (1) of the Courts of Judicature Act 1969 which 22 is in pari materia with that under section 60 (1) of the same Act and applicable to the Court of Appeal, as follows: “The expression “miscarriage of justice” appears in the proviso to s. 92(1) of the Courts of Judicature Act 1964. A similar expression, “failure of justice” appears in s. 422 of the Criminal Procedure Code. They mean the same thing. For, the same result follows when justice either fails or miscarries. The proviso reads as follows: Provided that the Federal Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. So it comes to this. As a general rule this court will, in the normal course of events, quash a conviction where there has been a misdirection. Exceptionally, a conviction will be upheld despite a misdirection where this court is satisfied that a reasonable tribunal would have convicted the accused on the available evidence on a proper direction. The decision of this court in Alcontara Ambross Anthony v. PP [1996] 1 CLJ 705 exemplifies the general rule, while that in Khoo Hi Chiang v. PP [1994] 2 CLJ 151 illustrates the exception. Having scrutinised the record with care, we are satisfied that this is an appropriate case for the application of the proviso.” (emphasis added). Based on our consideration of the overwhelming evidence against the appellants in this case, it qualifies as an exception mentioned by the Federal Court above. 23 [27] As for not being supplied with Murugaya’s statement, we noted from the notes of proceeding at page 116 of the Supplementary Appeal Record titled “Rekod Rayuan Tambahan (Nota Keterangan)” learned counsel for the appellants did complain of the same and said as follows: “PB: I would like to record that prosecution offered 3 witnesses, one is Murugaya, Renuka and one more is manager from their management who has in fact already left the Condominium Management. We would like put on record that this inspite the fact that Murugaya was offered to the defence but never made available to the defence at any stage and neither was his statement supply or shown to defence. And with that YA the defense close their case.” [28] With respect, as clearly noted above, learned counsel for the appellants never said that he had requested for the said statement but was not given the same and neither did he expressed an intention to tender the same, of course upon sight of it, which he was fully entitled to do through PW9 by recalling him to the stand. [29] As for the two policemen who leaped across the balcony, whose evidence in our view would only corroborates that of PW2, it is trite law that evidence must be weighed and not counted and this is 24 exemplified by the clear provision of section 134 of the Evidence Act 1950 which provides: “134. No particular number of witness shall in any case be required for the proof of any fact.” [30] The Federal Court in Balachandran v Public Prosecutor [2005] 2 MLJ 301 had clearly stated that where the evidence of a witness does not require corroboration, the prosecution is not obliged to tender such corroborative evidence because such a requirements would conflict with the said section 134. Therefore, held the Federal Court, the testimony of a single witness, if believe, is sufficient to establish any fact. Here in this case before us, the learned HCJ as stated earlier had expressly stated that PW2 was a credible witness. Further the learned DPP in her reply informed the court that the two policemen were in fact offered to the defence which learned counsel never refuted in his final reply submission. [31] Learned counsel also questioned the improbability of that act being done at the height of 23 floors and 5 feet between the two balconies. However, when we examined the cross-examination of PW9 on this issue, it was only put to him that it was dangerous to jump 25 from one balcony to the other, which he agreed and not that it was an improbable or an impossible act. That evidence at page 20 of the same Appeal Record (Nota Keterangan) reads: “S. Setuju rumah 23-3 dan 23-4 di tingkat 23? Setuju. S. Ikut kamu balkoni antara rumah lebih kurang 5 kaki? Setuju. S. Setuju amat bahaya untuk melompat dari satu balkoni ke balkoni lain di tingkat 23? Ya.” Subsequently, at page 26 of the same volume it was put to PW9 that no such act of leaping from the balcony happened. However, in re-examination at page 27, PW9 explained himself as follows: “S. Tadi dicadang bahaya untuk lompat koridor kamu setuju tapi kamu arah untuk lompat kenapa? Sebab jarak dekat dan saya pilih anggota yang berbadan kecil dan ringan untuk lompat.” [32] Given the above facts and the offering of the two policemen to the defence, we would agree with the learned DPP that their absence did not create any gap in the prosecution case because their evidence was only corroborative of that of PW9 and no adverse inference 26 should be drawn against the prosecution based on the same reason earlier stated which is that there was no suppression or withholding of the evidence. The Caution Statements [33] In both their caution statements, the two appellants merely state that they were arrested in Unit 4 and not Unit 3 and that Unit 3 was opened with keys obtained from Murugaya who was arrested earlier than them. They never mentioned as per their sworn testimonies that Murugaya rented Unit 3 for his uncle which we must now stress is different from the version put during the prosecution case which is that Murugaya rented the unit. As again rightly pointed out by the learned DPP, the best person to testify about the actual tenant for Unit 3 would be PW5, the estate agent who dealt with the tenancy agreement but that alleged fact was not put to him. As also highlighted by the learned DPP and this was similarly done in the court below, the defence itself said Murugaya’s uncle stayed there with his family only for one week in 2015 though he visited the place on and off. Whereas the evidence of PW7 is clear that both appellants have been seen by him coming in and out of Unit 3 also. Although DW3 also frequented Unit 3, all these facts do not impinge on the finding of possession against the two appellants because, firstly the law as decided by the Federal Court in 27 PP v Denish Mahavan [2009] 2 CLJ 209 is that there need not be exclusive possession of the premises where the drugs are found in order to establish possession of the drugs. The court held at paragraph 16 as follows: “[16] Before proceeding to consider the reasons for the Court of Appeal’s decision, we will say a few words about “exclusive” possession. It is inappropriate to speak of possession of an article in criminal law as exclusive possession. One is either in possession or not in possession, although one could be in possession jointly with another or others. To say that the prosecution of a drug case fails because there has been no proof of exclusive possession is apt to convey the wrong impression that it is only in case where possession is entirely with one person – that is, “exclusive” – that a conviction is possible.” (emphasis added) [34] Here, from the credible evidence of PW2, the conduct of the two appellants refusing to open the door to Unit 3 despite PW2’s repeated knockings as well as hiding beside the bed in the master bedroom after knowing that the police were attempting to gain entry into Unit 3 could not raise any other inference but that of guilt. The Federal Court’s decision in Parlan Dadeh v Public Prosecutor [2009] 1 CLJ 717 on the relevancy of such conduct which was not explained by the appellants is applicable in this case. 28 [35] In saying all the above, we do not dispute the evidence as alluded by the defence that the two appellants were actually residing in Unit 4 because even if they did, the fact of their residence does not negate their possession of the drugs, the pistol and bullets found in Unit 3 for it is not a requirement of the law that they must reside there in order to satisfy that element of possession under the DDA and the Firearms Act. The elements to prove possession are after all custody and control as well as knowledge and as narrated earlier, the evidence of PW5 and PW7 when considered together with their possession of the keys to Unit 3 and the CIMB documents in the 1st appellant’s name shows that Unit 3 was accessible to the appellants. [36] Lastly, also in relation to the issue of access, learned counsel highlighted to us the evidence adduced at the trial from PW9 as per page 73 of the Appeal Record (Nota Keterangan) that twenty-five finger prints were lifted from the impugned exhibits tendered in court and until the day he gave evidence in court, there was no result obtained whose fingerprints were these. The learned DPP agreed that this was so but countered that submission by saying that it was never put to PW9 that Murugaya’s finger print was one of the said twenty-five. Given their defence that Murugaya was the real culprit in this case, the presence of his, or his uncle’s finger print for that matter, 29 should have indeed been put to the witness. Nonetheless, case authorities is clear that finger print evidence is only corroborative evidence. This was held by the Supreme Court of India in Gade Laksmi Mangaraju v State of Andra Pradish AIR [2007] Supreme Court 2677 and quoted in this court’s decision in Amala Johnson v PP [2019] MLJU 128 which also referred to the Supreme Court’s decision in Public Prosecutor v Mansor Md. Rashid & Anor [1997] 1 CLJ 233 where Chang Siew Fai (CJ Sabah and Sarawak) held it was only where the identity of a culprit is in question or is required to be proved would finger print evidence be a great significance and value. In view of the clear evidence in this case based on the testimony of PW2 on the arrest of the appellants and the discovery of the drugs, pistol and bullets, as well as the evidence of PW5, PW7 and PW11, that finger print evidence is to us of no significance for without the said evidence the appellants have been proved to be in legal possession of both the drugs, pistol and bullets found in Unit 3. Double Presumptions And Sentences [37] However, in view of the invocation of the double presumptions which has been ruled unconstitutional in Alma Nudo Altenza v PP & Anor [2019] 5 CLJ 780, we have decided to set aside the convictions on the drug trafficking charges and substitute the same under section 30 6 of the DDA. Upon hearing submissions from both parties and considering their mitigation, to wit, both appellants have no previous convictions, that the 1st appellant was only 27 years old at the material time with aged parents and a sister still studying whereas the 2nd appellant has a wife with two young children (aged 9 and 5 respectively) as well as aged parents to support, we decided to impose a sentence of 15 years imprisonment and 10 strokes of the rotan for the 1st charge and 8 years plus 10 strokes of the rotan for the second charge. Both sentences were ordered to run concurrently and with that imposed in Appeal No. 434 but consecutive to that imposed for the possession of the pistol and bullets in Appeal No. 435 because these are distinct offences although the discovery of the offences were made at the same time. [38] Thus Appeal No. 431 in respect of the drug trafficking charges were allowed whereas the other two were dismissed and the decision of the learned HCJ in respect of them was affirmed. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 20th January 2020 31 Parties Appearing: For The 1st Appellant in W-05(M)-431-09/2017: Gooi Soon Seng Ooi Pen Lyn (Messrs Gooi & Azura) For The 2nd Appellant in W-05(M)-431-09/2017: Gooi Soon Seng Ooi Pen Lyn (Messrs Gooi & Azura) For The Respondent in W-05(M)-431-09/2017: Pn. Dhiya Syazwani Izyan Binti Mohd Akhir (Attorney-General’s Chamber) For The 1st Appellant in W-05(M)-434-09/2017: Gooi Soon Seng Ooi Pen Lyn (Messrs Gooi & Azura) For The 2nd Appellant in W-05(M)-434-09/2017: Gooi Soon Seng Ooi Pen Lyn (Messrs Gooi & Azura) For The Respondent in W-05(M)-434-09/2017: Pn. Dhiya Syazwani Izyan Binti Mohd Akhir (Attorney-General’s Chamber) 32 For The 1st Appellant in W-05(M)-435-09/2017: Gooi Soon Seng Ooi Pen Lyn (Messrs Gooi & Azura) For The 2nd Appellant in W-05(M)-435-09/2017: Gooi Soon Seng Ooi Pen Lyn (Messrs Gooi & Azura) For The Respondent in W-05(M)-435-09/2017: Pn. Dhiya Syazwani Izyan Binti Mohd Akhir (Attorney-General’s Chamber) Cases Referred To:

(1) Lai Kim Hon & Ors v Public Prosecutor [1981] 1 MLJ 84;

(2) Chew Wai Keong & Anor v Public Prosecutor & Another Appeal [2018] 3 CLJ 681;

(3) Md Zainudin Raujan v Public Prosecutor [2013] 4 CLJ 21;

(4) Munusamy Vengadasalam v PP [1987] 1 MLJ 492;

(5) Abdullah Zawawi Omar v PP [1985] 2 MLJ 16;

(6) Ghazalee Kassim & Ors v Public Prosecutor [2009] 4 CLJ 737;

(7) PP v Asnawi Yusuf [2012] 3 CLJ 41, [2011] 4 MLJ 16;

(8) Tunde Apatira & Ors. v Public Prosecutor [2001] 1 CLJ 381;

(9) Balachandran v Public Prosecutor [2005] 2 MLJ 301;

(10) PP v Denish Mahavan [2009] 2 CLJ 209;

(11) Parlan Dadeh v Public Prosecutor [2009] 1 CLJ 717; 33

(12) Gade Laksmi Mangaraju v State of Andra Pradish AIR [2007] Supreme Court 2677;

(13) Amala Johnson v PP [2019] MLJU 128;

(14) Public Prosecutor v Mansor Md. Rashid & Anor [1997] 1 CLJ 233;

(15) Alma Nudo Altenza v PP & Anor [2019] 5 CLJ 780.