Mohd Ali Bin Bahar v Pendakwa Raya (S-05(SH)-211-06/2023)

MUSLIADI BIN ALI ... APPELLANTS AND PUBLIC PROSECUTOR ... RESPONDENT [In the matter of the High Court in Sabah and Sarawak at Tawau Criminal Trial No. TWU-45A-2/3-2021]

Mohd Ali Bin Bahar

Musliadi Bin Ali CORAM: RAVINTHRAN N. PARAMAGURU, JCA COLLIN LAWRENCE SEQUERAH, JCA AHMAD KAMAL BIN MD. SHAHID, JCA JUDGMENT OF THE COURT

Mohd Ali bin Bahar ( $ 1^{\mathrm{st}} $ Appellant) and Musliadi bin Ali $ (2^{\mathrm{nd}} $ Appellant) (who collectively will be referred to as the Appellants) were charged with trafficking 1,368.8 grams of methamphetamine, which is an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act). The charge read as follows: "That both of you, on the 9th day of October 2020, at about 10:20 p.m., located at the Kg. Inderasabah Tawau jetty area, in the district of Tawau, in the state of Sabah, did on your own behalf traffic in a dangerous drug to wit 1,368.8 gram of Methamphetamine and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under Section 39B(2) of the same Act, read with section 34 of the Penal Code."

At the end of the case for the defence, the Appellants were convicted of the said offence and sentenced to life imprisonment, which is 30 years imprisonment, and also ordered to undergo 15 strokes of the whip.

On 9 October 2020, at about 7.30 pm, SI Amran bin Sulaiman (PW3) received a tip-off concerning drug-trafficking at the jetty area in Kg Inderasabah, Tawau.

After a briefing, PW3 and his team left IPD Tawau at about 8.15 pm for the jetty area. They arrived at their destination at about 9.15 pm. At 10.15 pm, while they were observing the area, PW3 saw two (2) men approaching the jetty on foot in a suspicious manner. One (1) of them was holding a bag in his right hand. They were heading toward a boat and then boarding it.

PW3 and his team ran towards them, whereupon he identified himself as a police officer and showed his authority card. The man who held the bag threw the bag into the sea. Both were attempting to flee but were apprehended following a scuffle.

While both were being arrested, there was an Angkatan Pertahanan Maritim Malaysia (APMM) boat making its rounds nearby, and assistance was rendered in towing the seized boat to the Pangkalan Pasukan Polis Marin in Tawau.

PW3 retrieved the dark gray Bruno Manfred bag (P9), which was thrown into the sea.

Inside the bag (P9) were two (2) green Chinese tea packets with the word "GUANYINWANG."

Both the green Chinese tea packets had a plastic packet inside, which contained a plastic packet with crystalline substances. The crystalline substances in the two (2) plastic packets were suspected to be methamphetamine.

Both the arrested persons were later identified as the Appellants. The man who held and threw the bag (P9) into the sea was the $ 2^{n d} $ Appellant. All these items were seized, and the seizure list was issued by PW3 and signed by both the Appellants.

PW3 gave evidence that in the journey back to IPD Tawau with the Appellants, the seized items were in his custody. When they arrived at IPD Tawau on 10 October 2020 at about 12.30 am, SP3 weighed the suspected drug, which had a gross weight of 2,103.4 grams. He marked the plastic packets with a crystalline substance using the letters "SI" and numbers/letters, and signed them. He also wrote the date of the seizure on the plastic packets with crystalline substance.

PW3 also lodged a police report on the arrest and the seizures (P14) at about 3 am before handing over the Appellants, the plastic packets with crystalline substance, the seizure list, together with the police report (P14) to Inspector Syed Muhammad Iqbal bin Syed Yassin (PW4) at IPD Tawau for investigations at about 3.20 am. The handover was recorded in the Borang Serah Menyerah Barang Kes (P16).

PW4 testified that he placed the plastic packets with crystalline substance in a steel cabinet, which only he had the key to and access to. On 22 October 2020, PW4 took a sealed box marked "SI," containing the plastic packet with the crystalline substance and a request for chemical analysis, and handed them over to the chemist, Rita Tie Ung Ha (PW1), at 10.57 am.

On 29 October 2020, at about 4 pm, PW4 collected the same box from PW1 at her office in Kota Kinabalu. PW1 had affixed to it the Jabatan Kimia Malaysia seal and the unique serial number she had assigned, viz., 20-FR-S-03710. At the same time, PW4 also collected three (3) copies of the report prepared by PW1, which set out her findings after analysing the crystalline substances.

PW1 confirmed in court that after analysis, she issued a chemist's report stating that the crystalline substance found in the bag (P9) was methamphetamine with a net weight of 1,368.8 grams. Findings of the High Court Judge at the end of the Prosecution case

After citing the relevant authorities of PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 2 MLRA 590; [2005] 6 MLJ 393; [2005] 6 AMR 203 and Balachandran v PP [2005] 1 CLJ 85, [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1 AMR 321, the learned High Court Judge (HCJ) subjected the evidence of the prosecution to the maximum evaluation test. In this case, the prosecution elected to prove actual possession and common intention against both the Appellants, which the learned HCJ found that the prosecution had successfully proved.

This is based on the fact that both the Appellants were observed approaching the jetty. They had boarded the boat together. The $ 2^{n d} $ Appellant was holding a bag (P9) in his right hand that was later confirmed to contain drugs. When PW3 identified himself as a police officer, the $ 2^{n d} $ Appellant had thrown the bag (P9) into the sea. Both Appellants were attempting to flee but were apprehended following a scuffle. This established physical custody.

From the conduct of both Appellants, the learned HCJ drew an inference that they had knowledge of the content of the bag (P9). With respect to the common intention, the learned HCJ was of the view that common intention may be inferred from the act of the Appellants when: a. both of them approached the boat from the jetty and boarded the boat together; b. the $ 2^{\mathrm{nd}} $ Appellant, who was carrying the bag (P9), threw it into the sea when the police appeared; and c. both Appellants tried to escape, and there was a scuffle.

Moreover, the common intention is manifested in the cautioned statements of both Appellants (D1 and D2). Apart from the other incriminating statements, the $ 1^{\mathrm{st}} $ Appellant admitted that he threw his mobile phone into the sea. In his cautioned statement, the $ 2^{\mathrm{nd}} $ Appellant said that the $ 1^{\mathrm{st}} $ Appellant instructed him to throw the bag (P9) into the sea. The instruction had been confirmed by the $ 1^{\mathrm{st}} $ Appellant in his cautioned statement (D1).

With respect to the content of the bag (P9), the learned HCJ accepted the evidence of PW1, who analysed the crystalline substance found in the plastic packets. His Lordship noted that the expertise of PW1 and her findings were not challenged. Thus, His Lordship found that the prosecution had proved that the crystalline substance found in the plastic bag carried by the $ 2^{\mathrm{nd}} $ Appellant contained methamphetamine with a weight of 1,368.8 grams. Methamphetamine is a dangerous drug listed in the Act. As for the elements of trafficking, the learned HCJ found that the prosecution was entitled to invoke the presumption afforded under section 37(da)(xvi) of the Act.

While the name "Tarding", who was claimed to be the owner/trafficker of the drugs by the Appellants, was undoubtedly mentioned in the Appellants' cautioned statements (D1 and D2), no sufficient particulars were given about "Tarding". In the absence of such material particulars, PW4 could not reasonably be expected to trace the said "Tarding" even if he exists. Such an Alcontara notice may be deemed defective.

For the above reasons, His Lordship found that the prosecution had successfully established a prima facie case.

When the Appellants were called to enter their defence, the Appellants elected to give evidence on oath. The Appellants sought to show that they had attempted to flee from the boat since they were undocumented migrants. According to the Appellants, they were instructed to deliver the bag (P9), which contained the alleged drugs, to the sea, the border between Malaysia and Indonesia. Their defence was essentially that of innocent carriers.

The Appellants relied on their cautioned statements (D1 and D2) and essentially stated that a person named "Tarding" was the real owner and/or the trafficker of the drugs.

The main passage in the cautioned statement (D1) on "Tarding" reads as follows: "Pada hari Rabu tanggal 07/10/2020, TARDING telefon aku dan suruh aku tunggu dibawah pokok mangga depan rumah arwah Hj Kerani di Kg. Inderasabah. Lebih kurang jam 9.00 malam, TARDING sampai disitu dan dia serahkan sama aku satu beg. Aku tanya dia apa dalam beg itu dan dia cakap 'batu'. Aku cakap dekat dia aku takut untuk bawa 'barang' begini tapi dia pujuk aku, dia cakap dia mahu bagi upah RM 5000 .00 jika aku hantar beg ini. Aku berfikir sekejap dan aku setuju untuk hantar beg ini. Aku tanya TARDING, dimana beg ini mahu dihantar. Dia cakap hantar di Pancang Lampu Merah (Sempadan Laut Malaysia-Indonesia) nanti ada orang tunggu sana. TARDING juga bagitahu aku suruh simpan beg ini dulu dimana-mana sebelum dia bagi arahan untuk aku bergerak. Aku bawa beg itu dan simpan di rumah aku. Pada jam 6.00 petang tanggal 09/10/2020, TARDING telefon aku dan dia suruh aku gerak malam itu jugak. TARDING cakap ada perahu kayu di jeti untuk aku guna dan dia suruh aku panggil si MUS, untuk teman aku kerana aku tidak pandai bawa perahu. Aku pergi panggil si MUS, dan aku cakap TARDING ada bagi kita kerja. MUS tanya kerja apa dan aku cakap hantar 'barang' ke Pancang Lampu Merah. Aku bagitahu si MUS, TARDING bagi upah RM 5000.00 dan kita akan bahagi dua. Dalam jam 10.00 malam, aku pergi ambil beg yang aku simpan di rumah aku dan aku dengan MUS berjalan menuju ke jeti dan aku telefon TARDING bagitahu aku mahu jalan sudah. Aku dan MUS turun ke perahu dan aku letak beg itu didalam perahu. Sewaktu MUS baru hidupkan enjin perahu, tiba-tiba datang sekumpulan lelaki dan mereka menjerit Polis. Kerana terkejut, aku terus mencampakkan telefon yang aku pegang dan aku telah mengarahkan MUS untuk campak beg itu kedalam air. Waktu itu juga dua orang Polis telah lompat kedalam perahu kami. Aku dan MUS cuba untuk melarikan diri tetapi tidak sempat kerana tibat-tiba ada bot Maritim datang dari arah laut merapat ke perahu kami. Aku dan MUS digari oleh Polis. Polis telah ambil beg itu dari atas air dan Polis itu telah buka beg itu dihadapan aku dan MUS dan aku tengok didalamnya ada dua bungkusan plasti (sic) warna hijau. Polis terus periksa didalam bungkusan plastik hijau itu dan aku nampak ada bungkusan plastik lutsinar berisi dadah syabu.” (emphasis added)

The $ 2^{\mathrm{n d}} $ Appellant's cautioned statement (D2) was largely consistent with the $ 1^{\mathrm{s t}} $ Appellant's narrative.

Notwithstanding the above, the Appellants denied that they signed the cautioned statements (D1 and D2).

Both the Appellants also contended that a person named "Nurintang binti Umar", whom they affirmed as the wife of "Tarding", was arrested together with both of them when the case was first mentioned at the Tawau Magistrate Court. Findings of the learned HCJ at the end of the Trial

At the end of the trial, the learned HCJ had considered all the issues raised by the defence. His Lordship found no merit in them and found that the Appellants had failed to rebut the statutory presumption of trafficking on a balance of probabilities, and to cast reasonable doubt on the prosecution's case in other material respects. The HCJ found, among others: a. The Appellants' denial that they signed the cautioned statements (D1 and D2) was never put to the relevant prosecution witnesses, and PW4's testimony that they signed the cautioned statements (D1 and D2) out of their own free will was not challenged. b. "Tarding" is a fictitious character. Even if "Tarding" exists, the cautioned statements (D1 and D2) clearly show that both the Appellants knew that the "barang"/"batu", which they had agreed to carry and deliver, was syabu. c. Even if the cautioned statements (D1 and D2) were to be disregarded and assuming "Tarding" exists, leaving the Appellants' assertion that they did not know the contents of the bag (P9) as the bone of contention, a reasonable man similarly circumstanced would have been put on inquiry as to the genuineness of the request to carry the bag (P9) to the border to an unnamed person waiting there. The Appellants could have declined to transport or carry the bag, but they did not, as the prospect of making money to pass them by. At one point, the $ ^{2} $ $ ^{nd} $ Appellant agreed that the benefit was "lumayan/mewah". The accused persons were, at best, wilfully blind and must therefore be taken to have known of the drugs in the bag (P9).

The learned HCJ also found that, in the absence of a purchaser of the drugs at the time the Appellants were arrested, however, brings them within limb a) of section 39B(2A) of the Act.

The Appellants were therefore convicted of the offence as per the charge. Both were sentenced to life imprisonment (30 years) and 15 strokes of the whip. It was further ordered that both of them are to be referred to the Immigration Department after completing their sentence, as they are undocumented migrants.

Aggrieved with the decision, both Appellants appeal to the Court of Appeal.

Based on the Petition of Appeal, the Appellants canvass the following grounds in this appeal: i. The failure of the learned HCJ to invoke and apply to call the wife of "Tarding" by the name of "Nurintang binti Umar" to testify in court. ii. The failure of the learned HCJ to call the person named "Tarding" as a witness and failure to consider him as the main culprit; and iii. The learned HCJ erred when His Lordship did not consider the various aspects of the evidence that spoke in favour of the Appellants, including the non-calling of the material witness by the prosecution, which ought to entail the drawing of adverse inferences. Our Findings The failure of the learned HCJ to invoke and apply to call the wife of "Tarding" by the name of "Nurintang binti Umar" to testify in court. The failure of the learned HCJ to call the person named "Tarding" as a witness, and the failure to consider him as the main culprit.

We will deal with the two (2) issues together as they relate to the same facts.

Both of the Appellants had mentioned a person by the name of "Tarding" in their cautioned statements (D1 and D2).

According to the Appellants, this person was actually the one who had instructed both of the Appellants to deliver the bag (P9), which contained the alleged drugs, to the area of Pancang Lampu Merah, located at the sea and also a border between Malaysia and Indonesia.

Further, the Appellants submitted that if we look at the statements given by both of the Appellants in their cautioned statements (D1 and D2) respectively, the description given pertaining to the physicality of a person named "Tarding" was totally the same and identical. As such, it cannot be said that "Tarding" was a fictitious character or an afterthought.

Both the Appellants also contended that a person named "Nurintang binti Umar," whom they affirmed as the wife of "Tarding", was arrested together with both of the Appellants when the case was first mentioned at the Tawau Magistrate's Court.

As such, to be taken into consideration, the absence of "Nurintang Binti Umar" and "Tarding" to be called as witnesses and to testify in court pertaining to the bag (P9), which contained the said alleged drugs, is really important for the Appellants to defend and present their case.

The Appellants submitted that since both of the Appellants have disclosed a person named "Nurintang binti Umar" and "Tarding" during the defence stage, then it is the Prosecution's duty to identify whether these witnesses are crucial and/or important to assist the court in discovering the truth.

Having perused the Grounds of Judgment (GOJ), we find that the learned HCJ carefully considered the evidence to determine whether "Nurintang binti Umar" (the wife of "Tarding") and "Tarding" exist as alleged by the Appellants when His Lordship said as follows: - "57. Learned counsel for the accused tried to elicit evidence that Tarding's wife was arrested and was at the Magistrates' Court during remand proceedings with his clients, in an attempt to bolster the defence claim that Tarding is a real person and the culprit. The purpose was also to show that as an arrestee, Tarding and her recorded statement ought to have been produced in court.

However, the cross-examination question "Saya telah dimaklumkan oleh kedua-dua Tertuduh bahwa pada masa sebutan kes mereka di buat di Mahkamah Majistret, isteri kepada Tarding ada ditahan dan di bawa ke Mahkamah Majistret pada pertama kali kedua-dua mereka di bawa ke Mahkamah Majistret untuk sebutan. Kamu tahu perkara itu?" does not avail the accused, since PW4 disagreed and there was no evidence of any kind to indicate the existence of such a state of affairs. See NOP, Q & A 161.

Next, whether Tarding exists or is a fictitious character.

I find that Tarding is a fictitious character. Earlier, when considering whether the prosecution had made out a prima facie case against the accused, the court had scrutinized D1 and D2 and found that while the accused had referred to a person named Tarding, the Alcontara notice was insufficient as the name, address and telephone number of Tarding was conspicuously absent.

Now, when the accused gave evidence, they both admitted that they had not revealed the full or real name of Tarding, and his telephone number.

While the 1 $ ^{st} $ accused testified that Tarding resided in Kg Inderasabah and that the police had shown him a video and asked him whether that was Tarding's house, such and event was never put to PW3 or PW4. The 1 $ ^{st} $ accused claimed that Tarding's wife, Nurintang Binti Umar/Diana, was apprehended and subsequently produced in the Magistrates' Court together with the accused on the same day but that is no more than a bare assertion.

There is no merit in the complaint that the statement of Tarding's wife was recorded and not produced, and that she was not offered as a witness. The facts of Rosli Bin Yusoff v PP [2021] 5 MLRA 150 are far apart and can be readily distinguished. There, the Federal Court held that arrestees must be made available to the defence. The apex court further held that the prosecution's discretion to call such witnesses as it requires to unfold its narrative is subject to good faith; and witnesses investigated by the police and whose statements have been recorded must be offered to the defence. But in the instant case, there is no tangible or credible evidence that Nurintang binti Umar/Diana is Tarding's wife and was ever arrested or had her statement recorded.

If there is any truth that the $ 1^{\mathrm{st}} $ accused knew of Tarding's address or house location, he would surely have been eager to disclose such information when he was giving his cautioned statement given his perilous situation. As for the $ 2^{\mathrm{nd}} $ accused, though he also said in D2 that he knew where Tarding's house was, he too did not provide any material details.

The lack of material details concerning Tarding, both when the accused were having their cautioned statements recorded and during the trial, leads one to form the view that Tarding is a fictitious character.

The evidence of DW3, a resident of Kampung Inderasabah, was of no help to the accused. Apart from averring that he knew Tarding and gave the purported name of Tarding's wife, he agreed that he did not produce any evidence to show that these persons exist. See NOP, Q & A 350.

Even if Tarding exists, D1 and D2 clearly show that both the accused knew of the barang/batu which they had agreed to carry and deliver was syabu.

It remains to be mentioned that on the day fixed for delivery of the decision, learned counsel for the accused persons sought to inform the court that DW3 had told him of Tarding's arrest. Reference was made to a newspaper cutting.

The learned DPP took issue with the newspaper cutting. He pointed out that it did not even state who was arrested.

As for the CMS record on certain remand proceedings which was also produced by the defence at the same time, the record only mentioned one Tarnadi Bin Aras and one Budin Bin Asri. The prosecution pertinently pointed out that throughout the trial, there was no mention of Tarding's full or real name, let alone if it was either Tarnadi Bin Aras or Budin Bin Asri. The defence brought up these matters as part of its submission. These matters are tantamount to evidence from the bar and, are in any case, of no probative value." (emphasis added)

Based on the above, we find that the defence, despite its characterisation as an afterthought, was given due consideration by the learned HCJ. However, it was dismissed because the weight of evidence was overwhelming against it.

Based on the findings of the learned HCJ, we find that the failure of the investigating officer (IO) to trace "Nurintang binti Umar" and "Tarding" is immaterial to the case of the prosecution and did not occasion a miscarriage of justice. As observed in the Federal Court decision of Jorge Crespo Gomez v PP [2020] 5 MLRA 492; [2020] 5 MLJ 250; [2020] 6 AMR 773; [2020] 8 CLJ 292, cited by the learned HCJ, the critical question in a drug trafficking trial is whether the prosecution had proved that the accused had trafficked in the drugs in question. There may well have been another trafficker within the chain of transactions relating to the same drugs. However, the prosecution's failure to investigate or apprehend other persons involved in the trafficking, even when their role may have been more serious, does not exonerate an accused if the evidence is sufficient to establish the elements of the offence against him.

Thus, in the instant case, the police cannot be faulted for not investigating the said "Nurintang binti Umar" and "Tarding" as throughout the trial, there was no mention of "Tarding's" full or real name, address, and telephone number.

Even though the Appellants mentioned a person named "Tarding" in their cautioned statements (D1 and D2), we find that the Alcontara notice was insufficient as the name, address, and telephone number of "Tarding" were conspicuously absent.

Further, we agree with the learned HCJ's findings that the Appellants claimed that "Tarding's" wife, "Nurintang binti Umar," was apprehended and subsequently produced in the Magistrate's Court together with the Appellants on the same day is a bare assertion.

More importantly, we find that both of the Appellants admitted in their cautioned statements (D1 and D2) that they both knew the content of the bag (P9) i.e. batu (syabu) and both of them consistently admitted to the fact that they were on the move to deliver the bag as requested by "Tarding", thus admitted the control and custody of the drugs.

This is also consistent with the fact that both the Appellants were trying to run away, and the $ 2^{\mathrm{nd}} $ Appellant threw the bag into the water, which is relevant under section 8 of the Evidence Act 1950 to show the element of knowledge of the Appellants.

Therefore, we are of the view that any other names, i.e., "Nurintang binti Umar" and "Tarding" mentioned, submitted by them, and as canvassed in their petition of appeal, must be called by the prosecution as material witnesses are immaterial. The prosecution must prove mere possession, not ownership.

The evidence of PW3 and their versions as put during the prosecution case, as per cautioned statements (D1 and D2), affirmatively confirmed the element of possession as legally required to be proven by the prosecution. The evidence is thus overwhelming.

Therefore, we are of the view that no issue of "Tarding" was the 'the actual trafficker' in this case should arise as both the Appellants admitting the fact 'aku tanya dia apa ada dalam beg itu dan dia cakap 'batu'. Aku cakap dekat dia aku takut untuk bawa 'barang' begini tapi dia pujuk aku, dia cakap dia mahu bagi upah RM5000.00 jika aku hantar beg ini. Aku berfikir sekejap dan aku setuju untuk hantar beg ini'.

Based on the above, we are of the view that even if "Tarding" exists, cautioned statements (D1 and D2) clearly show that both the accused knew of the 'barang/batu' which they agreed to carry and deliver was syabu.

The principle is best explained in the following passage from the Court of Appeal case of Pendakwa Raya Lwn Klong K'djoanh & Satu Lagi Rayuan [2016] 5 CLJ 533; [2016] MLJU 1644; [2016] MLRAU 187 when it was held: - [33] Di bawah s.39B(1), apa yang perlu dibuktikan ialah milikan dan kawalan dengan pengetahuan dan bukannya kepunyaan (ownership). Walaupun diandaikan dadah itu kepunyaan Brave, tetapi tertuduh dengan penuh pengetahuan membawanya ke Malaysia dari India, itu sudah cukup untuk memenuhi kehendak s.39B(1) ADB. Isu sama ada Brave atau adik Brave adalah pemilik beg P24, tidak relevan sama sekali bagi pertuduhan di bawah s.39B(1) ADB." (emphasis added)

Given the above, we find that the submission of the Appellants' counsel that both the Appellants actually have no knowledge of the content of the bag (P9) and they were only to deliver the said Exhibit for the sole reason they would receive a sum amount of money from "Tarding" is untenable and devoid of merit.

In the premises, we reiterate that these grounds of appeal are wholly without merit, as we find that these issues were meticulously dealt with by the learned HCJ in his GOJ. The learned HCJ erred when His Lordship did not consider the various aspects of the evidence that spoke in favour of the Appellants, including the non-calling of the material witness by the prosecution, which ought to entail the drawing of adverse inferences

The Appellants submitted that "Tarding" was affirmed and accepted by the Prosecution witnesses from cautioned statements (D1 and D2). Therefore, PW4, the IO, ought to locate him but made a lack approach in locating "Tarding". Counsel therefore urged us to draw an adverse inference against the prosecution on the basis that potentially favourable evidence had been withheld.

We are of the view that there is no material to draw an adverse inference against the prosecution in view of the non-calling of material witnesses, i.e., "Nurintang binti Umar" and "Tarding" to testify in court.

It is trite law that an adverse inference may only be drawn under section 114 illustration (g) of the Evidence Act 1950 where there is suppression of not just any evidence, but material evidence. Thus, the element of suppression and materiality with regard to the evidence in question must be demonstrated. The principle is best explained in the following passage from the judgment of Mohd Azmi SCJ (as His Lordship then was) in Munusamy Vengadasalam v PP [1987] CLJ (Rep) 221; [1986] 1 MLRA 292; [1987] 1 MLJ 492. [2] ... It is essential to appreciate the scope of s.114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case". (emphasis added)

Based on the facts in the present case, we find that though the name "Tarding" was undoubtedly mentioned in the cautioned statements (D1 and D2), insufficient particulars were given about Tarding, such as his full name, telephone number, and address details. In the absence of such material particulars, PW4, the IO, could not reasonably be expected to trace the said Tarding even if he exists. Such and Alcontara notice may be said to be faulty. See Jorge Crespo Gomez (supra).

On this issue, we find that the learned HCJ had meticulously dealt with in his GOJ in paragraphs 57, 58, 79 to 85, 95 to 97, and based on the reasons given by the learned HCJ, we agree with his findings and we see no misdirection on the part of the learned HCJ for failing to draw an adverse inference.

Counsel for the Appellants submitted that the prosecution failed to prove knowledge of the contents of the bag (P9) on the part of his clients. Knowledge is the critical element in the offence of possession or trafficking of drugs, and it must be proved beyond a reasonable doubt. Proof of knowledge, as stated in the Federal Court case of Parlan bin Dadeh v PP [2008] 6 MLJ 19; [2019] 1 CLJ 717; [2008] 2 MLRA 763, is often a matter of inference from proven facts.

In the instant case, the submission of counsel for the Appellants on the issue of knowledge is that while the Appellants acknowledged that they had been asked by "Tarding" to carry the bag (P9), they said they did not know the contents of the bag (P9). Their defence was essentially that of an innocent carrier.

We find no merit in this ground of appeal for the following reasons. In the instant case, we find that the Appellants were observed approaching the boat from the jetty, they had boarded the boat together, the $ 2^{\mathrm{nd}} $ Appellant was carrying and had thrown the bag (P9) into the sea and thus attempted to get rid of the incriminating evidence from which knowledge could be inferred and their conduct in attempting to escape could be likewise be taken as evidence of their knowledge of the subject drugs.

In cross-examination, the defence sought to show that the Appellants had attempted to flee since they were undocumented migrants. While the court is mindful that more than one inference can be drawn from the facts, the inference more favourable to the accused is to be drawn. The court is also mindful that the explanation was not put to PW3 and PW4 during their cross-examination.

Further, we find that based on the cautioned statements (D1 and D2), both the Appellants admitted the physical possession and knowledge of the drugs seized by the police. Thus, mens rea possession has already been proven and admitted by both the Appellants.

On the facts as set out in the $ 1^{\mathrm{st}} $ Appellant's cautioned statement, (D1), he said that "Tarding" had called him on 7 October 2020, the $ 1^{\mathrm{st}} $ Appellant knew that the bag (P9) which he was asked by Tarding to deliver to Pancang Lampu Merah contained "batu," but he was persuaded by Tarding to do so for RM5,000.00. The $ 1^{\mathrm{st}} $ Appellant knew that the consignment was methamphetamine. When asked what he meant by "batu," the $ 1^{\mathrm{st}} $ Appellant answered: "Dadah syabu la sebab di kampung kami panggil "batu."

On the facts as set out in the $ 2^{n d} $ Appellant's cautioned statement, he said that the $ 1^{s t} $ Appellant had asked him to deliver "barang" to Pancang Lampu Merah for RM2,500.00. The $ 2^{n d} $ Appellant asked what the "barang" was, and the $ 1^{\mathrm{st}} $ Appellant told him it was "batu." When asked what he meant by "batu," the $ 2^{\mathrm{nd}} $ Appellant answered: "Setahu aku batu tu dadah syabu."

The narration of events of the arrest effected by PW3 on both the Appellants was corroborated and confirmed by the Appellants in their cautioned statements (D1 and D2). Thus, PW3's veracity and credibility were undoubtedly substantiated by the defence.

We find the learned HCJ also considered the Appellant's conduct at the time of their arrest under section 8 of the Evidence Act 1950. His Lordship in his GOJ said as follows: - [90] Moreover, it is noteworthy that the $ 2^{\mathrm{nd}} $ accused admitted he threw P9 into the sea, although he denied knowing the contents of P9. There was a scuffle, and both tried unsuccessfully to flee. Such conduct, taken together, speaks of the accused's knowledge of the subject drugs. See the Evidence Act 1950, Section 8."

The learned HCJ further stated in his GOJ at paragraph 91 that: "And even if D1 and D2 were to be disregarded and assuming Tarding exists, leaving the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused's assertion that they did not know the contents of P9 as the bone of contention, a reasonable man similarly circumstanced would have been put on inquiry as to the genuineness of the request to carry P9 to the border to an unnamed person waiting there. he The accused could have declined to transport or carry the bag, but they did not the prospect of making money to pass them by. At one point, the $ 2^{\mathrm{nd}} $ accused agreed that the benefit was "lumayan/mewah," (emphasis added)

Further, based on the evidence of PW3 and PW4 and cautioned statements (D1 and D2) of the Appellants, there is a credible basis for inferring that the Appellants had prior knowledge of the contents of the bag (P9).

For the above reasons, there is no merit in the ground of appeal that the prosecution failed to prove that the Appellants had knowledge of the contents of the said bag (P9) that he was carrying.

For this element of the charge, the Federal Court in Farose Tamure Mohamad Khan v. PP and other Appeals [2016] 6 MLRA 337; [2016] 6 MLJ 277; [2016] 6 AMR 1; [2016] 9 CLJ 769, held that: [53] Common intention, distinguished from the same or similar intention, requires proof that the criminal act was done in pursuance of a pre-arranged plan [Mahbub Shah (supra)]. Such pre-planning may develop on the spot or in the course of commission of an offence, the crucial test being the plan must precede the commission of the offence (Namasiyiam Dorasamy v. PP & Other Cases [1987] 1 MLRA 73; [1987] 2 MLJ 336; [1987] CLJ Rep 241). [54] A common intention may be often be difficult to prove by way of direct evidence in practice, but it can be inferred from the circumstances of the case and the conduct of the accused (Dato' Mokhtar Hashim & Anor v. PP [1983] 1 MLRA 7; [1983] 2 MLJ 232; [1983] CLJ Rep 101). [66] The existence of a common intention is question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. Direct evidence as proof is difficult to procure because common intention is essentially a state of mind. Invariably inferences have to be relied upon arising from such acts or conduct of the accused, the manner in which the accused arrived at the scene, the nature of injury caused by one or some of them or such other relevant circumstances available. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether there is a common intention to commit the offence for which the accused could be convicted. The facts and circumstances of each case might vary. As such, each case should be decided based on the facts involved." (emphasis added)

From the conduct of both Appellants, an inference can be drawn that they had knowledge of the content of the bag (P9). With respect to the common intention, we are of the view that common intention may be inferred from the act of the Appellants when: a. both of them approached the boat from the jetty and boarded the boat together; b. the $ 2^{\mathrm{nd}} $ Appellant, who was carrying the bag (P9), threw it into the sea when the police appeared; and c. both Appellants tried to escape, and there was a scuffle.

Moreover, the common intention is manifested in the cautioned statements of both Appellants (D1 and D2). Apart from the other incriminating statements, the $ 1^{\mathrm{st}} $ Appellant admitted that he threw his mobile phone into the sea. In his cautioned statement, the $ 2^{\mathrm{nd}} $ Appellant said that the $ 1^{\mathrm{st}} $ Appellant instructed him to throw the bag (P9) into the sea. The instruction had been confirmed by the $ 1^{\mathrm{st}} $ Appellant in D1.

Based on the aforesaid reasons, we find that the learned HCJ after taking into account the totality of the circumstances of this case i.e. the conduct of the Appellants at the time of their arrest and the cautioned statements (D1 and D2) of the Appellants, had arrived at a conclusion that there was a common intention between the Appellants to commit the offence. We see no reason to disagree with the learned HCJ's findings on this issue. Whether the Appellants signed the cautioned statements (D1 and D2)

It is interesting to note that both the Appellants had introduced their cautioned statements and had them marked as D1 and D2 during the prosecution's case. However, the $ 1^{\mathrm{st}} $ Appellants disclaimed any knowledge and disagreed with the contents of the cautioned statements (D1). The $ 2^{\mathrm{nd}} $ Appellant denied he signed the cautioned statement (D2).

We are of the view that if both the Appellants disputed the cautioned statements (D1 and D2), they should not have tendered the cautioned statements and asked these statements to be marked as D1 and D2.

The Defence did not provide any sample signature or any evidence from a handwriting expert in support of their allegation of the allegedly forged signatures in both the cautioned statements (D1 and D2).

We find that both the Appellants denied they signed the cautioned statements (D1 and D2), but the assertion was never put to the relevant prosecution witnesses. More importantly, we find that PW4's testimony that the Appellants signed the cautioned statements (D1 and D2) out of their own free will was not challenged.

On this issue, the learned HCJ had stated in his GOJ as follows: - "66. Although learned counsel for the accused had introduced the accused's cautioned statements and had them marked as D1 and D2 during the prosecution's case, his clients sought to disassociate themselves from D1 and D2 when their defence was called.

The $ 1^{\mathrm{st}} $ accused disclaimed any knowledge of and disagreed with the contents of D1 (see NOP, Q & A 190 and 199). However, it was not until he was re-examined that he denied having signed D1. See NOP, Q & A 244.

The $ 2^{n d} $ accused denied he signed D2.

Both the accused did not provide any sample signatures or any evidence from a handwriting examiner in support of their allegation of the allegedly forged signatures in D1 and D2, although the $ 1^{\mathrm{st}} $ accused agreed that "permalsuan tandatangan adalah satu perkara yang sangat serius."

The $ 1^{\mathrm{st}} $ accused contradicted himself, when he testified that he had just seen the signature in D1 ("saya baru nampak"), but in next breath, he testified that he had first sighted the signature in D1 when his lawyer visited him in prison less than a month ago.

Under cross-examination, the $ 1^{\mathrm{st}} $ accused agreed that "perkara tentang tandatangan ini tidak pernah dibangkitkan sebelum hari ini". See NOP, Q & A 254-258. While the $ 2^{\mathrm{nd}} $ accused professed ignorance when it was put to him that the handwriting issue was never raised till the last day of the trial (NOP, Q & A 310), the truth of the matter is that both accused only denied they signed D1 and D2 when they gave evidence.

As noted earlier, the assertion was never put to the relevant prosecution witnesses, and PW4's testimony that the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused signed D1 and D2 out of their own free will was not challenged.

D1 and D2 were tendered by learned counsel for the accused who asked for these statements to be marked, without so much of a whiff that the signatures of his clients were forged or not authentic.

The $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused admitted that they were questioned, and their information/explanation （“keterangan”）was reduced into writing （“telah dicatit”）.

There is no good reason to accept the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused's attempt to disown D1 and D2. Their denials are incapable of casting reasonable doubt on the prosecution's case. (emphasis added)

Given the facts and circumstances of the case and the reasons given by the learned HCJ, we see no reason to disagree with His Lordship's findings that the Appellants signed the cautioned statements (D1 and D2) voluntarily.

In conclusion, we find no merit in all the grounds raised before us during oral arguments, in the Memorandum of Appeal, and in the written submission.

To recapitulate, the High Court correctly found that a prima facie case had been established and accordingly called for the defence. The element of possession and common intention was satisfied by the fact that PW3 observed the Appellants approaching the jetty on foot in a suspicious manner. The $ 2^{\mathrm{nd}} $ Appellant was holding a bag (P9) which contained the drugs in question in his right hand. They were heading toward a boat and then boarding it. The $ 2^{\mathrm{nd}} $ Appellant, who was carrying the bag (P9), threw it into the sea when the police appeared. Both Appellants tried to escape but were apprehended following a scuffle. The Appellants admitted in their cautioned statements (D1 and D2) that they knew that the contents of the bag (P9) contained drugs. An inference of knowledge of the drugs was therefore properly drawn. There was no break in the chain of evidence with respect to the drugs. The chemist's (PW1) expertise, which verified both the nature of the drugs and their weight, was not successfully impugned. The presumption of trafficking was not rebutted on a balance of probabilities when the Appellants gave evidence, and no reasonable doubt was raised in relation to the prosecution's case.

For the above reasons, we find that the conviction is safe. In respect of the sentence, we note that the High Court imposed the minimum penalty, which is life imprisonment or 30 years' incarceration, together with 15 strokes of the whip, which we find reasonable and no reason to disturb. We therefore dismissed the appeal against conviction and sentence. The decision of the High Court is accordingly affirmed. Dated: 30 January 2026 Ahmad Kamal Bin Md Shahid Judge Court of Appeal Malaysia PARTIES APPEARING For the Appellant: Mr. Mohd Ridwan B. Usman (together with Mr. Abdul Gani Zelika [Messrs Johari, Zelika & Amin] For the Respondent: DPP Mohd Amril Bin Johari [Public Prosecutor, Attorney General's Chambers]