Pendakwa Raya v Abdul Hafiz Bin Abdul Latip (Q-05(SH)-122-03/2017 dan Q-05(SH)-123-03/2017)

There were two appeals before us which arose from the decision of the High Court at Kuching. The first appeal is by the prosecution/appellant (referred to herein as "the appellant") against the decision of the High Court in convicting the accused under a reduced charge of section 39A(2) of the Dangerous Drugs Act 1952 ("the DDA 1952") instead of the original charge under section 39B(1)(a) of the DDA 1952 in respect of the first charge.

The second appeal is a cross-appeal by the accused/respondent (referred to herein as "the accused") against conviction under the reduced charge of section 39A(2) of DDA 1952 of which the accused was sentenced to 18 years imprisonment and 10 strokes in respect of the first charge; and conviction under section 6 of DDA 1952 where the accused was sentenced to 1 year imprisonment in respect of the second amended charge. Both imprisonments were ordered to run concurrently from the date of the arrest (15.7.2015).

The charges preferred against the accused, in its original language, read as follows: First Charge "Bahawa kamu pada 25.7.2015 jam lebih kurang 2.30 pagi, di No. 7871, Taman Uni-Garden, Lorong 7B2, Jalan Datuk Mohd Musa, 94300 Kota Samarahan, dalam daerah Kota Samarahan, dalam Negeri Sarawak telah mengedar dadah berbahaya iaitu cannabis seberat 1099.8 gram dan oleh yang demikian, kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama." Second Amended Charge "Bahawa kamu pada 25.7.2015 jam lebih kurang 2.30 pagi, di hadapan rumah No. 7871, Taman Uni-Garden, Lorong 7B2, Jalan Datuk Mohd Musa, 94300 Kota Samarahan, dalam daerah Kota Samarahan, dalam Negeri Sarawak telah ada dalam milikan kamu dadah berbahaya iaitu Cannabis sejumlah 0.64 gram dan oleh yang demikian, kamu telah melakukan kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama."

At the end of the prosecution's case, the learned trial judge found that the prosecution had succeeded in establishing a prima facie case against the accused and had ordered the accused to enter upon his defence on both charges. After considering the defence's case, the learned trial judge amended and reduced the first charge to one of possession under section 6 of the DDA 1952, punishable under section 39A(2) of the same. The accused was convicted and sentenced to 18 years imprisonment with effect from his date of arrest and 10 strokes of whipping. As for the second amended charge, the trial judge found the accused guilty and convicted him under section 6 of the Act. The accused was sentenced to 1 year imprisonment with effect from the date of arrest.

We had heard the appeal and after hearing the parties, we unanimously allowed the prosecution's appeal. We set aside the order of the High Court and substituted with the order of conviction and sentence the accused under section 39B(2) for the offence of trafficking in dangerous drugs. We also unanimously dismissed the accused's appeal. We now furnish our reasons.

The prosecution's evidence was as follows. Acting on information received, on 25.7.2015 at about 1.30 a.m., a police team from Jabatan Siasatan Jenayah Narkotik, IPK Sarawak, led by Inspector Thomas ak Untol (PW10) approached a Malay male in front of RHB Bank, Taman Uni-Garden, Kota Samarahan, known later as Abdul Hafiz bin Abdul Latip, the accused. The accused was sitting in the driver's seat of a Proton Saga with the engine on. PW10 conducted a body search on the accused. Nothing incriminating was found on the accused. Examination on the car also found nothing incriminating. SP10 noticed a brown sling bag on the front passenger seat, next to the accused. Upon examination on the brown sling bag 'Kiekers' (P9), PW10 found that it contained the identity card of the accused, a car key with remote control attached to a key-holder (P12(A)) and one small key (P12(B)). Later, PW10 asked the accused to lead the police to his house.

At about 2.30 a.m., the accused took PW10 and the police team to a house No. 7871, Taman Uni-Garden, Lorong 7B2, Jalan Datuk Mohd Musa. It was a double-storey terrace house. The grill was locked with a padlock and the front door was locked from inside. The accused knocked on the door several times and was subsequently opened by PW9, the accused's wife. There were two cars parked at the porch, a Perodua Viva and a Toyota Avanza (Avanza) bearing registration number QAJ 3897. The Avanza was locked. PW10 asked for the key. The accused told him that the key was inside the sling bag. SP10 took the key-holder and used the remote to unlock the Avanza. In the glove compartment, PW10 found a black zipped spectacle case (P18A) containing one compressed lump dried of leaves inside a transparent plastic packet (P18B) suspected to be ganja. The accused was arrested.

PW10 then proceeded into the house. Examination on the living room at the ground floor found nothing incriminating. There was a store room located on the ground floor. The door of the store room was locked. PW10 asked for the key. The accused said he did not have the key to the store room. P10 then instructed D/Kpl Harman bin Ismail (PW11) to use one small key (P12(B)) found inside the sling bag (P9) to unlock the door of the store room. PW11 succeeded in unlocking the door. PW10 instructed PW11 to examine the store room. On the floor of the store room, PW11 found the following items: (i) one tied black plastic bag (P19(1)) containing eight (8) packets of transparent plastic (P19 (2-9)) each containing compressed lump of dried leaves, (ii) two tied black plastic bags (P20 & P21), each containing one compressed lump of dried leaves, (iii) one transparent wrapping plastic containing one compressed lump of dried leaves (P22). On the floor of another ground floor room, SP10 found two knives (P24A & P24B), one digital weighing scale (P11) and one metal grinder (P23). Later, PW10 lodged a police report via Kota Samarahan Rpt/004739/15 (P36) on the arrest. A search list was issued (P38). PW10 also made a correction report to correct his earlier report P36 on the exact location of items/exhibits seized (P37). PW10 made the necessary markings on the drugs and items seized before he handed them over to the investigating officer, Insp. Mohd Mustafa bin Mohd Wardi (PW13).

The exhibits were sent to the Chemistry Department for analysis. Upon analysis by the Chemist, Mohd Riduan Md Bakhir (PW5), he confirmed that the exhibits were Cannabis with a total net weight of 1099.8 grammes and 0.64 grammes, respectively (P4). Cannabis is defined under section 2 of DDA 1952.

The learned trial judge accepted the evidence of the Chemist (PW5) on the nature and weight of the drugs where PW5 had also testified that he found traces of cannabis on the two knives (P24A & P24B) and the metal grinder (P23).

We noted from the grounds of judgment that the learned trial judge had considered at great length the submission of the learned counsel for the accused. It was submitted before the trial judge that the prosecution has failed to make out a prima facie case against the accused, including that: (a) the accused did not have exclusive possession and knowledge of the drugs found in the Avanza and in the store room, (b) the failure to investigate by the investigating officer of persons who had access to the Avanza and also to the room on the ground floor and the store room, (c) material discrepancies in the evidence of PW4, PW8, PW9, PW10 and PW11 that had led to two conflicting versions on the prosecution's case, and (d) the application of presumptions under s. 37 of DDA 1952.

The learned trial judge made a finding that the accused was in possession and had knowledge of the drugs found in the Avanza and the store room of the house. In respect of the first charge, the learned trial judge invoked the presumption under section 37(da) of the DDA 1952 to find the accused was trafficking in the impugned drugs, cannabis weighing 1099.8 grammes.

We reproduce the findings of the learned trial judge at the end of the prosecution's case, as follows (pp. 54-55 Appeal Record Volume 1): "75. On the facts and circumstances of the case, the accused was in possession of 200 gm or more in weight of cannabis found in the storeroom of the house. Based on this fact, the presumption under s. 37(da) applied. Pursuant to s.37(da) of DDA, a person who is found in possession of 200 gm or more in weight of cannabis shall be presumed, until the contrary is proved, to be trafficking in the said drug. Based on the quantity of the drugs found, it was much larger than was likely for his consumption. It was never suggested that the accused was a drug addict or that the cannabis found was for his own consumption. In the absence of any plausible explanation given by the accused or evidence to the contrary, based on the presumption under s. 37(da), the accused was presumed to be trafficking the drugs. At the end of the prosecution's case, the accused has not, on a balance of probabilities, rebutted the presumption of trafficking under s.37(da) of DDA."

Having found that the prosecution had established a prima facie case against the accused, the learned judge called upon the accused to enter his defence.

In respect of the drugs found in the Avanza, the accused's defence may be summaried as follows:

the accused and his wife (PW9) was operating a rental car business;

on 22.7.2015 around noon, the Avanza was rented to one Harris bin Matali (DW5);

on 24.7.2015 at noon, DW5 returned the Avanza to him;

the accused did not check the Avanza since he trusted DW5 who was his regular customer;

he did not lock the Avanza which was parked in the porch of the house;

the Avanza was not locked when SP11 conducted a search on the car;

the accused denied possession and knowledge of the drugs found in the Avanza. [16] In respect of the drugs found in the store room of the house, the accused's defence may be summarised as follows:

he held an open house for Hari Raya celebration on 24.7.2015;

his friends and relatives came to the house and they were in the ground floor room playing games, karaoke and 'lepak-lepak' and they left his house about 11.45 p.m.;

later at about 1.00 pm the accused left the house to meet his friend by the name of Dollah at RHB Bank;

the doors to the ground floor room and store room were always open and unlocked;

the store room and the room on the ground floor were accessible to others;

he has no knowledge on why the door to the store room was locked on that night;

he denied possession and knowledge of the drugs found in the store room. Findings of The Learned Trial Judge At The Conclusion of The Trial Drugs in the Avanza [17] At the end of the trial, the learned trial judge found that the defence of the accused in respect of the drugs found in the Avanza were highly improbable and not credible and failed to raise any reasonable doubt on the prosecution's case. [18] The learned trial judge stated as follows (p. 69 at para 108 Appeal Record Volume 1): "At the material times the accused had the use and possession of the Avanza. He had the key and remote of the Avanza. These were kept inside his sling bag from which they were taken to unlock the Avanza in the presence of the accused. The drug was found in the glove compartment of the Avanza in his presence. He did not lead any evidence that someone else had a set of the key or remote with access to the Avanza. He did not say that someone had duplicated the key and remote so that he, she or they had access to the Avanza without his knowledge. PW9 and DW5 denied that the drug belonged to them. Based on the facts and circumstances of the case, the defence had failed to raise any doubt that someone else had access to the Avanza at the material times. This irresistibly pointed to the accused having the custody, control and possession of the drug in the Avanza. It also pointed to him having knowledge of the nature of the drug found in the Avanza when they were found in his presence." [19] The accused was thus convicted on the second amended charge and sentenced to one year imprisonment with effect from his date of arrest. Drugs in the store room [20] The learned judge found that the defence of the accused has failed to raise any reasonable doubt on the prosecution's case that the accused was in possession and knowledge of the drugs found in the store room. [21] The learned judge, however, ruled that the prosecution has failed to show that the accused used the metal grinder, digital scale and pen knives for the purpose of trafficking the drugs. His Lordship held that in the absence of an overt act of the accused within the definition of trafficking under s.2 of the DDA 1952, the possession only amounted to passive possession. Consequently, the learned trial judge convicted the accused under a reduced charge of s.39A(2) of DDA 1952. The accused was accordingly sentenced to 18 years imprisonment and 10 strokes of whipping. [22] We reproduce below the learned judge's reasoning in substituting the first charge to one under section 39A(2) at the end of the defence's case (pp. 73 to 74 Appeal Record Volume 1): "114. Has the defence raised any doubt on the prosecution's case that the accused was trafficking in the drugs? The accused denied he was trafficking the drugs. Although the quantity of drugs involved was in excess of the statutory minimum prescribed under s.37(da) of DDA, a defence of self-consumption or self-administration might be available: see Cohen Lorraine Philis & Anor v PP [1989] 3 MLJ 289; Ng Chai Kem v PP [1994] 2 MLJ 210. In this case the accused did not say that the drugs were for his consumption.

However, to constitute an offence of trafficking, it involves something more than passive possession or self-administration of the drugs: see Ong Ah Chuan v PP [1981] 1 MLJ 64. The evidence showed that at the material time the accused was sitting in the Proton Saga in front of the RHB Bank. At that material times he was not manufacturing, importing, exporting, buying, selling, giving, receiving, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drugs. The prosecution did not lead any evidence that he was concealing or storing the drugs. The prosecution did not submit that the accused used the metal grinder, digital scale and pen knives for the purpose of trafficking the drugs. The drugs were found in the Avanza and in the storeroom. Based on the evidence the accused was in possession of the drugs found. This amounted to passive possession of the drugs.

His passive possession of the drugs did not constitute an act of trafficking of the drugs which did not come within the definition of 'trafficking' under s.2 of DDA. This raised a doubt on the prosecution's case that the accused was trafficking the drugs and had rebutted the presumption under s.37(da) of DDA. Any benefits of doubt should be given to the accused and the conviction for trafficking under s.39B was unsustainable: see Chow Kok Keong v Public Prosecutor [1998] 2 MLJ 469." The Appeals The Prosecution's appeal [23] Learned deputy public prosecutor (DPP) for the appellant raised only one ground of complaint, that is in respect of the learned judge's decision in amending the first charge to one of possession of the dangerous drugs under s. 6 of the DDA 1952 and punishable under s. 39A(2) of the same. Learned DPP submitted that the trial judge erred in law and in fact and had contradicted himself after he ruled that the prosecution had proved a prima facie case against the accused based on the presumption under s. 37(da) of DDA 1952 but subsequently ruled that the prosecution evidence did not reveal any offence of trafficking by the accused, thus substituting it with a lesser charge. The accused's appeal [24] Learned counsel for the accused raised the following three grounds of appeal:

that the learned trial judge erred in law and facts when His Lordship ruled that the prosecution had proved a prima facie case against the accused on both charges.

that the learned trial judge erred in his finding that PW3, PW4, PW8 and PW9 were credible witnesses, contrary to the evidence adduced.

that the learned judge erred in law in that His Lordship failed to appreciate the defence case. Our decisions The accused's appeal [25] We shall deal first with the accused's appeal. We take the first and second complaints together since both relate to each other. Learned counsel for the accused submitted that the learned judge had failed to take into consideration that the store room and the Avanza where the drugs were found were used and accessible by many other people. Learned counsel further contended that the evidence given by PW3 (Lau Yieng Fung), PW4 (Abdul Latip bin Sapong), PW7 (Sapiee Ahmad), PW8 (Fadzliana bt Shibli) and PW9 (Dayang Nurhanisah bt Awang Khalid) had cast doubt on the prosecution's case and favourable to the defence. [26] We noted from the grounds of the learned judge that His Lordship had carefully considered the evidence before him. Appraisal of the grounds of judgment of the trial judge, we find that His Lordship spent a good part of his judgment assessing the evidence not only of PW3, PW4, PW7, PW8 and PW9, but also of the other witnesses for the prosecution (pp. 25 to 46 Appeal Record Vol.1). His Lordship was constantly mindful of the contradictions of the evidence before him. The learned trial judge had considered PW4's evidence, the father of the accused who testified that the Avanza was bought and registered under PW7's name. PW4 and PW7 were siblings. Both PW4 and PW7 testified that the accused had taken over the Avanza from PW7 who was transferred to Bintulu. PW7 testified that he had sold the Avanza to PW4 sometime in November 2007. PW7 explained that the car remained registered under his name since PW4's loan application was rejected by the bank. Since then, the Avanza was left with the accused. PW4 said the accused was operating a car rental business. PW4 further testified that he used to visit the accused's house and will always use the room upstairs. The key and remote control to the Avanza was found from the sling bag which belonged to the accused and which contained the accused's identity card and the key to the store room. PW9 had said that the sling bag belonged to the accused. Both PW4 and PW7 had denied any knowledge of the drugs found in the Avanza. His Lordship had also considered PW9's evidence, the accused's wife. PW9 too had denied knowledge of the drugs found in the Avanza and in the storeroom of the house. His Lordship had also examined PW9's testimony which he found contradicted with other witnesses. PW9 testified that on the 24.7.2015, her husband (the accused) had an open house for raya which started from afternoon till midnight and guests including PW8 and her family only left the house at around 12.00 a.m. However, PW9's evidence was in constrast with evidence of PW8 (Fadzliana) who did not say that it was an open house for raya. According to PW8, on 24.7.2015 at about 6.00 p.m., she received a call from PW9 for her car to be rented out. At about 9.10 p.m. she drove her car, a Proton Saga to the accused's house and handed over her car. Her husband came to pick her up. She did not say that she was invited for the open house. His Lordship had also considered that in PW9's statement to the police, PW9 did not mention that they had an open house on 24.7.2015. In fact, it was PW9's own admission that she had left her house at about 2.00 p.m. and only came back to the house at about 8.00 p.m. The raya open house issue was crucial since the defence of the accused was that his friends and guests were at the house till midnight and had accessed to the rooms including the store room which, according to PW9 and the accused, was usually unlocked. The learned trial judge made a finding that the door to the store room was locked on 24.7.2015 until it was unlocked by PW10 using the key found in the sling bag seized from the accused. In a nutshell, His Lordship had considered the alleged contradictions in the evidence of the prosecution's witnesses and found that the contradictions were minor in nature in relation to the use and access of the store room. We are mindful that in the assessment of the credibility of witnesses is assessing credibility is best left to the trial judge who had the audio visual advantage of witnesses' demeanour at trial. We see no compelling reasons which required our intervention hereof. [27] Learned counsel for the accused submitted that there was no evidence that the accused had possession and knowledge of the drugs found in the Avanza and in the storeroom. The accused's defence was that he had no knowledge of the presence of the drugs in the Avanza and the drugs in the store room, and that therefore he was not in possession of it. [28] The question of others having access to the storeroom was considered by the trial judge. His Lordship found that there was no evidence that someone had opened or unlocked the door of the store room or that someone had access and put the drugs inside the store room on 24.7.2015. What constitutes possession under the DDA 1952 is a question of law. However, whether possession has been proved in a given case is a question of fact and the circumstances that vary from case to case. In this respect, His Lordship relied on the cited authorities in PP v Abdul Rahman Akif [2007] 4 CLJ 337 (p. 24 Appeal Record Vol.1); Public Prosecutor v Denish a/l Madhavan [2009] 2 MLJ 104 (p. 32 Appeal Record Vol.1); Samundee Devan Muthu Kerishnan v PP [2010] 3 CLJ 269 and Nasruddin Daud v PP [2010] 2 CLJ 322 (p. 46 Appeal Record Vol.1), to come to a finding that the accused had possession and knowledge of the drugs that were recovered in the store room. [29] In Suhaimi Abdul Hamid v PP [2014] 1 LNS 268, Linton Albert JCA had said as follows: [9] The fact that others have access to the condominium unit and the second bedroom does not necessarily militate against a finding of possession by the appellant as was the case in the instant appeal... [10] It is patently clear, therefore, that possession need not be exclusive, a fortiori, access. Hence there is no merit in the appellant's argument premised on the mere fact that others had access to the second bedroom. Whether there was possession depends on the factual matrix of each given situation. Here, the drugs were found in the room occupied by the appellant and the appellant had admitted to be the owner of all the items in which the drugs were found." [30] SP10 testified that the store room was locked and he had asked the accused and PW9 as to the whereabout of the key to the store room. Both replied that they did not know where the key to the store room was kept. Using one of the keys from the sling bag that was found from the accused, SP10 managed to open the door to the store room. In other words, the accused knew where he had kept the key (P12B) but refused to inform SP10 when he was asked. On the floor of the store room, PW10 and PW11 found the following items: " (i) Beg plastic warna hitam berikat mengandungi (8) paket plastic lut sinar yang masing-masing berisi ketulan-ketulan mampat daun-daun kering disyaki dadah jenis ganja; (ii) beg plastic warna hitam berikat mengandungi (1) ketulan mampat daun-daun kering disyaki dadah jenis ganja; (iii) beg plastic warna hitam berikat mengandungi daun-daun kering disyaki dadah jenis ganja; (iv) (1) ketulan mampat daun-daun kering disyaki dadah jenis ganja". The drugs were not concealed. The house was occupied by the accused, his wife (PW9) and their two children of minor age. [31] PW10 then proceeded to the other room of the ground floor, where he found a metal grinder (P23), one digital scale (P11) and two pen knives (P22A & P22B). On analysis, PW5 confirmed traces of cannabis on the two knives (P4). There was also the presence of some residue plant materials in the metal grinder (P23), which upon analysis confirmed as cannabis (P4). It was not concealed. According to PW3 (Lau Ruen Lung) the house owner, the house was rented out to the accused and PW9 for a tenancy of one year commencing from 1 May 2015 (P5). Having considered all the circumstantial evidence adduced before him, His Lordship made an affirmative finding that the accused was in custody and control, that was an actual possession and knowledge of the nature of the drugs in the store room. [32] On the drugs found in the Avanza, His Lordship found that the accused had the use and possession over the Avanza of which the key and remote control of the same were kept in the sling bag that was found on the accused which also contained his identity card. PW9 and PW5 denied that the drugs in the Avanza belonged to them. The learned trial judge found that the accused had custody and control, and knowledge of the nature of the drugs in the Avanza. [33] In the case of Modjtaba Hosseinzadeh Majid v Public Prosecutor [2015] MLJU 502, the Court of Appeal had held at para (43): Knowledge that forms an integral part of possession can either be established through direct evidence or it can be reasonably inferred from the set of circumstances in a given case. Indeed in the case of Gunalan a// Ramachandran & Ors v PP [2004] 4 MLJ 489, it was said at page 506 therein by the Court that 'Knowledge is to be inferred from the facts and surrounding circumstances of a case.' [34] We did not find any error on the part of the learned judge on the above said findings. In our judgment, the learned judge was right in calling upon the accused to enter his defence on the charges against him. We are satisfied that the learned trial judge was right in holding that a prima facie case of trafficking in dangerous drugs in respect of the first charge and possession of dangerous drugs in respect of the second charge had been made out against the accused. [35] It is settled law that an appellate court will not interfere with a trial judge's findings of fact based on the trial judge's assessment on the credibility and veracity of witnesses at trial, unless the findings are clearly unsupported or against the weight of evidence. Discrepancies will always be there in evidence of a witness but what a judge has to determine is whether the discrepancies are minor or material. In the final analysis it is for the trial judge to determine which part of the evidence of a witness he is to accept and which one to reject. A heavy burden is imposed on an appellant who wishes to set aside finding of facts by the trial judge (see Tay Kheng Hong v Heap Moh Steamship Co. Ltd. [1964] MLJ 87; Dato' Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 1 MLJ 84 (FC); Che Omar bin Mohd Akhir v Public Prosecutor [1999] 2 MLJ 689 (CA); Lai Kim Hon & Ors v Public Prosecutor [1981] 1 MLJ 84 (FC); Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209)). On the evidence before the learned trial judge, it cannot be said that His Lordship's findings were against the weight of evidence. [36] We turn next to the third ground of appeal raised by the learned counsel for the accused that the learned judge erred in convicting the accused by imposing a higher burden on the accused which had caused a failure of justice. Learned counsel for the accused also contended that the trial judge failed to give a judicial appreciation to the defence's case. It was contended too that the trial judge had erred when he held that the accused's defence has failed to raise a reasonable doubt on the prosecution's case. [37] His Lordship at the end of the prosecution's case (p. 55 Appeal Record Volume1) had stated as follows: "77. In a criminal trial the onus of proving the guilt of an accused person beyond reasonable doubt, which never shifts, lies throughout on the prosecution. It is not upon the accused to prove his innocence. The burden on him is merely to offer an explanation which may reasonably be true or which raises a reasonable doubt as to his guilt: see Saminathan & Ors v Public Prosecutor [1955] 21 MLJ 121; Public Prosecutor v Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180. In considering the defence the court is guided by the principles set out in the case of Mat v Public Prosecutor [1963] 1 MLJ 263 and in the case of Mohamad Radhi bin Yaakob v PP [1991] 3 CLJ 2013. I also refer to s.182A of CPC." [38] At the end of the defence's case, His Lordship at pp. 72 to 73 of the Appeal Record Volume 1, concluded as follows: "113. At the close of the defence case, the court has to decide whether the defence has raised any reasonable doubt on the prosecution's case. On the evidence adduced, the defence has failed to raise any doubt on the prosecution's case that the accused was in possession of the drugs and nature of the drugs in the Avanza and in the storeroom. The defence has also failed to raise any doubt that the accused was in possession of the metal grinder, digital scale and two pen knives found in the ground floor room." [39] On perusal of the Appeal Record, we noted that the learned trial judge had extensively dealt with the defence case and made his finding as stated at pp. 70 to 72 Appeal Record Volume 1. His Lordship alluded to the evidence of each of the defence witnesses, namely DW2, DW3, DW4 and DW5. His Lordship found that the defence of the accused was a mere denial and insufficient to cast a reasonable doubt on the prosecution's case. In dealing with the defence's case, the learned trial judge said as follows:

In respect of the drugs found in the storeroom, the defence submitted that the accused and his wife had a Raya celebration in the house on 24.7.2014 and there were many family members and friends who brought friends who were present, including DW2, DW3, DW4 and DW5 who had been to the house many times. They said they had kept or left things including books and shirts in the storeroom. They said the door of the storeroom was always open but sometimes it would lock by itself due to wind from the opposite window or lock malfunction. They said on 24.7.2015 people were going in and out of the ground floor room, some were playing computer games and some having karaoke. They said they saw someone entered and came out of the storeroom. The defence submitted therefore many people had access to the storeroom and that the accused did not have exclusive control or possession of the storeroom where the drugs were found. It was submitted that these had raised doubts that the accused was in possession of the drugs or that he knew of the drugs in the storeroom.

Was the door of the storeroom closed and locked at the material times? PW9 had testified that on 24.7.2015 after she took the oven, blender and other items from the storeroom to prepare food for the day, the door was locked to prevent her children playing inside the storeroom. She did not say that she had subsequently opened the door. The accused also testified that the door of the storeroom was locked when the police wanted to inspect it on 25.7.2015 at about 2.00 a.m. and that PW10 had asked PW11 to take the key from the sling bag to unlock the door of the storeroom. The accused did not say that someone unlocked and opened the door or had locked it after that or he opened it during the open house or he had locked it when he left the house to meet his friend at the RHB Bank. Based on what PW9 and the accused had said that the door was locked, these contradicted the evidence of DW3, DW4 and DW5 that on 24.7.2015 the door of the storeroom was always open. Although DW5 said when he rented the Avanza there was a sticker with the word 'store' on a key attached to the keyholder, photograph 12 of P1 contradicted him on this allegation.

Although DW3, DW4 and DW5 had said that they saw someone had entered and came out from the storeroom and implied that this 'someone' had put something inside the storeroom, they did not mention any name or describe this 'someone' or that they knew this 'someone' bearing in mind this was a Raya celebration for family members and friends. None of them were able to pinpoint or describe this 'someone' or when this 'someone' had entered and left the storeroom or what he brought or put inside the storeroom. When PW9 gave evidence during the prosecution's case, she did not say that DW3, DW4 and or DW5 had told her that they saw someone had entered and came out from the storeroom during the open house. She also did not inform the prosecution about this before the trial. If this had happened or this 'someone' existed, PW9 would have testified as such but she did not, bearing in mind that PW9 and the accused had said that the door of the storeroom was locked at the material times. What DW3, DW4 and DW5 had said that they saw someone had entered and came out from the storeroom was inherently improbable. Therefore it was probable that it did not happen or this 'someone' did not exist or did not enter the storeroom. A prudent man under the circumstances of the particular case would act upon the supposition that it did not happen or this 'someone' did not exist or did not enter the storeroom. This would exclude that this 'someone' had entered and put the drugs inside the storeroom or that someone else had access to the storeroom." [40] We are satisfied that the learned trial judge has not misdirected himself in any way on the burden of proof to occasion an error either on the law or the facts to warrant appellate intervention. His Lordship had considered the totality of the evidence adduced before him in light of the well established principles enunciated in Mat v PP [1963] 1 LNS 82; [1963] 1 MLJ 263; Mohammad Radhi Yaacob v PP [1991] 3 CLJ 207, and in compliance of section 182A of the Criminal Procedure Code (Act 593). [41] We therefore found no merits or substance in the third ground of appeal by the accused. The prosecution's appeal [42] We now turn to the prosecution's appeal. The sole ground of appeal by the appellant was that the learned trial judge erred in convicting the accused under the reduced charge of section 39A(2) of DDA 1952 instead of the original charge under section 39B(1)(a) of DDA in respect of the first charge. Learned DPP contended that the trial judge had erred in his finding at the end of the defence case that the prosecution had only succeeded in proving a case of possession. It was submitted that the accused had not successfully rebutted the statutory presumption. Thus, the accused ought to be found guilty and convicted for trafficking in dangerous drugs. [43] By way of a reiteration, at the end of the prosecution's case the learned trial judge at pp. 54 to 54 Appeal Record Volume 1, made the following findings: "75. On the facts and circumstances of the case, the accused was in possession of 200 gm or more in weight of cannabis found in the storeroom of the house. Based on this fact, the presumption under s. 37(da) applied. Pursuant to s.37(da) of DDA, a person who is found in possession of 200 gm or more in weight of cannabis shall be presumed, until the contrary is proved, to be trafficking in the said drug. Based on the quantity of the drugs found, it was much larger than was likely for his consumption. It was never suggested that the accused was a drug addict or that the cannabis found was for his own consumption. In the absence of any plausible explanation given by the accused or evidence to the contrary, based on the presumption under s.37(da), the accused was presumed to be trafficking the drugs. At the end of the prosecution's case, the accused has not, on a balance of probabilities, rebutted the presumption of trafficking under s.37(da) of DDA." [44] In dealing with the issue whether the accused was trafficking in the drugs, the learned trial judge (at p. 73 Appeal Record Volume 1) made the following findings: "114. Has the defence raised any doubt on the prosecution's case that the accused was trafficking in the drugs? The accused denied he was trafficking the drugs. Although the quantity of drugs involved was in excess of the statutory minimum prescribed under s.37(da) of DDA, a defence of selfconsumption or self-administration might be available "see Cohen Lorraine Philis & Anor v PP [1989] 3 MLJ 289; Ng Chai Kem v PP [1994] 2 MLJ 210. In this case the accused did not say that the drugs were for his consumption." [45] It is settled law that at the conclusion of the trial it is incumbent for the court to consider whether on the balance of probability the defence has rebutted the statutory presumption of trafficking under s.37(da) as a separate exercise. [46] We noted that the trial judge had embarked into that in evaluating whether the accused's defence had rebutted the statutory presumption and His Lordship made the following findings (p. 74 Appeal Record Volume 1): "115. The prosecution did not lead any evidence that he was concealing or storing the drugs. The prosecution did not submit that the accused used the metal grinder, digital scale and pen knives for the purpose of trafficking the drugs. The drugs were found in the Avanza and in the store room. Based on the evidence the accused was in possession of the drugs found. This amounted to passive possession of the drugs.

His passive possession of the drugs did not constitute an act of trafficking of the drugs which did not come within the definition of 'trafficking' under s.2 of DDA. This raised a doubt on the prosecution's case that the accused was trafficking the drugs and had rebutted the presumption under s.37(da) of DDA. Any benefits of doubt should be given to the accused and the conviction for trafficking under s.39B was unsustainable: see Chow Kok Keong v Public Prosecutor [1998] 2 MLJ 469." [47] With the greatest respect to the learned trial judge, it is our view that the learned trial judge had acted on a wrong premise. It was the prosecution's case that the prosecution relied on the presumption in s. 37(da) of DDA 1952. Therefore, it is incumbent upon him to see whether the evidence before him was justified in coming to the conclusion that the accused had rebutted the statutory presumption. The learned trial judge had made his finding that the accused was only in passive possession of the drugs and for that it did not constitute an act of trafficking of the dangerous drugs. [48] We noted that there was not an iota of evidence coming from the accused during trial that had challenged the amount of the drugs stated in the respective charge against him. Neither was there any evidence from the accused that the drugs were for his own consumption. In fact, the accused had denied having anything to do with the drugs. [49] Has the defence raised any doubt on the prosecution's case that the accused was trafficking in dangerous drugs? The established case law has set out some guidelines in considering whether the presumption has been rebutted. In this regard, we refer to the case of Lim Heng Boon v Public Prosecutor [2014] 5 MLJ 259, where His Lordship Abdul Malik Ishak JCA had said as follows: [52] So the appellant had to rebut the operative presumption of trafficking under s.37(da) of the DDA on the balance of probabilities. That level of rebuttal places a highest evidentiary burden on the appellant (Public Prosecutor v Yuvaraj [1969] 2 MLJ 89 (PC)). [53] In order for the appellant to rebut this presumption of trafficking that had been invoked against him, he had to establish two things. First, the appellant could lead by way of an affirmative evidence before the trial court that the subject matter of the charge was not dangerous drugs, to wit, heroin and monoacetylmorphines as defined under s2 of the DDA, and even if it was monoacetylmorphines, its weight had not exceeded 15g. Secondly, even if the appellant fails to do that, he would have to lead affirmative evidence on the balance that his conduct was not consistent with trafficking. And if the appellant fails to do that, a verdict of conviction against him must necessarily follow." [50] Coming back to the instant appeal. The learned trial judge at the end of the prosecution's case had ruled that the defence had failed to raise any reasonable doubt on the prosecution's case and the defence also had failed to adduce any evidence to rebut the presumption of trafficking under s.37(da) of the DDA on the balance of probabilities. Thus, the accused was called to enter his defence. In other words, His Lordship was satisfied that a prima facie case of trafficking of the dangerous drugs had been proved against the accused with the assistance of a presumption under s.37(da). The total weight of the cannabis in the store room was 1099.8 grammes. The first black plastic bag (P19(1)) contained eight (8) small packets of transparent plastic (P19 (2-9)) each contained compressed lump of dried leaves, another two tied black plastic bags (P20 & P21), each contained one compressed lump of dried leaves, and the third transparent wrapping plastic contained one compressed lump of dried leaves (P22). SP5, the chemist confirmed that a metal grinder (P23) and two pen knives (P12A & P12B) each had traces of cannabis. We are of the view that the traces of cannabis in P23, P12A and P12B cannot be a co-incident. Obviously, the large amount of the drugs found with some packed in small packages were not for personal consumption and is sufficient to invoke the presumption under s.37(da)(vi) of the DDA 1952. In light of these evidence, we failed to comprehend the basis of the learned trial judge's finding that there was no convincing evidence produced by the prosecution that the accused was trafficking in dangerous drugs but a mere possession of the impugned drugs. We are of the view that the learned trial judge erred in his evaluation of evidence and the application of section 37(da)(vi) of the DDA 1952. In our judgment the accused has failed to rebut the presumption of trafficking under section 37(da)(vi) of the same. [51] Having regard to the totality of the evidence, it is our unanimous finding that the charge of trafficking had been proven beyond reasonable doubt against the accused. [52] For the reasons aforesaid, we allowed the prosecution's appeal. The order of the High Court is set aside and substituted with the order of conviction under section 39B(1)(a) of DDA 1952. The accused is sentenced to death as provided by the law. As for the appeal by the accused against conviction and sentence under section 6 of DDA 1952, we dismissed the appeal and affirmed the decision of the learned High Court Judge. (YAACOB HAJI MD. SAM) Judge Court of Appeal Malaysia Counsel: For the appellant (prosecution): Wan Shaharuddin bin Wan Ladin Deputy Public Prosecutor Attorney-General's Chambers No.45, Persiaran Perdana, Precinct 4, 62100 Putrajaya For the respondent (accused): Osman Ibrahim Messrs Osman Ibrahim & Co. Advocates and Solicitors Lot 262, 2nd Floor Wisma Bidar Section 9, Jalan Sintok, 93400 Kuching, Sarawak