1. ) Prakash A/L Renganathan (JA-45A-35-04/2021)

Prakash A/L Renganathan (NRIC:920503-01-5063), Suresh A/L Sundaramokan (NRIC:930815-08-5529), Naventhran Pathar A/L Arumugam (NRIC:990309-08-6179) and Viknesvaran A/L Rajandharan (NRIC:011228-01-1501) were arrested on 9.9.2020 and charged with trafficking 985.60gram of Cannabis under Dangerous Drugs Act 1952.

Bahawa kamu dituduh dengan kehendak Pendakwa Raya dan pertuduhan terhadap kamu dibacakan seperti berikut: "Bahawa kamu bersama-sama pada 9 September 2020 pada jam lebih kurang 10.30 malam di tepi Jalan Mawar 1, Taman Tampoi Indah, dalam daerah Johor Bahru di dalam Negeri Johor Darul Ta'zim, telah mengedar dadah jenis Cannabis seberat bersih 985.60gram, dengan itu kamu telah melakukan suatu kesalahan dibawah seksyen 39B (1)(A) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen 39B (2) Akta yang sama dan dibacakan bersama Seksyen 34 Kanun Keseksaan." Summary of the prosecution case.

On 9.9.2020, at approximately 10.00pm, ASP Mohd Nasaruddin bin Adnan (SP1) and his men conducted an "Agent Provocateur" operation at Jalan Mawar 1, Taman Tampoi Indah, Johor Bahru. During this operation, D/KpI Vuthaya Kumar Rao a/I Subramaniam (SP4) (Boy) acted as the undercover agent with the objective to purchase 1 kilogram of ganja for RM4,800.00.

SP4 was provided with a phone number to contact an Indian man to arrange the purchase and cash payment of RM4,800.00.

Upon arrival at the location, SP4 called the number and the $ 1^{\mathrm{st}} $ accused answered. Once the arrangements were finalised to purchase the drugs, the $ 1^{\mathrm{st}} $ accused called another person $ (2^{\mathrm{nd}} $ accused).

Subsequently, SP4 followed the $ 1^{\mathrm{st}} $ accused to a Proton Preve with the registration number WXK 6985 (Car) which was parked approximately 20 meters away. The $ 2^{\mathrm{nd}} $ accused was in the driver's seat and the $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused were passengers.

In the presence of SP4, the $ 2^{\mathrm{nd}} $ accused reached under his seat and produced a compressed block of plant material wrapped in plastic suspected to be ganja (compressed block).

Upon receiving the pre-arranged signal of SP4 removing his cap, SP1 and his men moved in to make the arrest. The $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused were arrested inside the Car. The $ 1^{\mathrm{st}} $ accused attempted to flee but was apprehended after a brief struggle. The $ 5^{\mathrm{th}} $ accused who was acting as a lookout on a nearby motorcycle was also arrested.

The compressed block was recovered by SP4 who handed it over to SP1. After which, the raiding team together with the $ 1^{st} $ accused proceeded to the $ 1^{st} $ accused's house where Gayathrey a/p Arumugam was arrested. She was subsequently released from the police station the following day without being charged.

All the accused including Gayathrey and the compressed block were taken to the police station IPK. The relevant police reports (P4) and (P15) were lodged by SP1. The investigation was subsequently taken over by Insp Muhamad Saifuddin bin Che Anawa (SP5).

On 14.9.2020, the compressed block was sent to the chemist department for analysis. The receipt of which is marked as exhibit P20.

At the close of the prosecution case, based on maximum evaluation of the testimonies of the witnesses and credible evidence, under s180 of the Criminal Procedure Code (CPC), I found that prima facie had been made out against the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused for the charge P2 and called upon them to enter their defence.

However, in respect of the $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused, I find that the prosecution failed to make out a prima facie case against them. Accordingly, I acquitted both $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused of the charge P2 and discharged them forthwith. See the case of Abdullah bin Atan v PP [2020] MLJU 1244 (FC). No appeal had been filed against the acquittal.

An appeal had been filed by the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused respectively against their conviction.

In coming to my decisions, there are 5 issues which I had to decide: i. whether the impugned drugs seized on 9.9.2020 are dangerous drugs as listed in the $ 1^{\mathrm{st}} $ schedule Part III of s2 of the Dangerous Drugs Act 1952 (DDA); ii. whether the negotiated sale between the $ 1^{\mathrm{st}} $ accused and the agent provocateur (SP4) amounted to trafficking as in s2 of Dangerous Drugs Act.; iii. whether all 4 accused had committed the offence with a common intention under s34 of Penal Code (PC); iv. whether there was a break in the chain of evidence as presented by the prosecution; v. whether the prosecution had successfully made out a prima facie case against all 4 accused according to the charge P2. FIRST ISSUE Whether the impugned drugs seized on 9.9.2020 are dangerous drugs as listed in the $ 1^{\mathrm{st}} $ schedule Part III of s 2 of the Dangerous Drugs Act 1952 (DDA).

The testimony of SP6 and her chemist report P19 showed that the compressed block drugs recovered was Cannabis with a net weight 985.6 grams.

The accused respectively did not challenge SP6's testimony nor her analysis in P19. However, the $ 1^{\mathrm{st}} $ accused challenged the calibration of the machine which was used to carry out the analysis of the drugs. The certificate of calibration is marked as D25.

The challenge relates to the date of the calibration where the date of calibration was carried out on 23.1.2018. The certificate of the calibration was issued on 13.2.2018. Since 2018, no further calibration has been performed. In response, the chemist officer Liew Chyi (SP6), testified that the certification issued is valid for 3 years. Consequently, the certificate issued on 13.2.2018 would be valid until 12.2.2021. See page 239 and page 240 of NOP: Page 239: PEMERIKSAAN BALAS PEGUAMBELA OKT 1 "S : Puan saya merujuk kepada sijil kaliberasi atau pun digunakan sebagai certificate of caliberation. Puan pertama sekali setuju dengan saya bahawa peraturan menghendaki bahawa ada sijil kaliberasi untuk setiap tahun, setuju? J : Saya tidak setuju Yang Arif. S : Melihat kepada certificate of caliberation, boleh beritahu Mahkamah bahawa tarikh sijil kaliberasi untuk alat timbangan? J : Ya, tarikh kaliberasi adalah pada 23.01.2018. S : Puan sijil kaliberasi ini adalah date of issue ialah 23.01.2018 kan? J : Ya betul." Page 240: PEMERIKSAAN BALAS PEGUAMBELA OKT 2 "S : So soalan saya, setiap certificate of caliberation, validity untuk berapa lama? J : Untuk 3 tahun Yang Arif. S : Ini ditentukan oleh siapa? J : Ini ditentukan oleh Jabatan Kimia Malaysia."

Since the $ 1^{\mathrm{st}} $ accused did not adduce any evidence to contradict SP6's evidence, I find this issue to be irrelevant.

Other than the challenge of the calibration certificate by the $ 1^{\mathrm{st}} $ accused, SP6 analysis and her report P19 was not challenged by all 4 accused. The acceptance of expert evidence from the chemist by court has been well established in the off-cited case of Munusamy v PP [1987] 1MLJU 492 (SC).

Since the evidence of SP6 is unchallenged, I am satisfied that the drugs seized on 9.9.2020 are Cannabis and are of the type listed as dangerous drugs under Part III of s2 of DDA. SECOND ISSUE Whether the negotiated sale between the $ 1^{\mathrm{st}} $ accused and the agent provocateur (SP4) amounted to trafficking as in s2 of Dangerous Drugs Act.

The prosecution had sought to establish that the sale of the drugs by the $ 1^{\mathrm{st}} $ accused to SP4 (agent provocateur) amounted to trafficking under s2 of DDA. As such there is no necessity to prove possession on the part of the $ 1^{\mathrm{st}} $ accused. See s2 of DDA; Section 2. Interpretation. "trafficking" includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;

See the case of Sayat Ahmad Nazir Ahmad v PP [2014] 7 CLJ 1025 (CA); [2014] 3MLJ 405 where the learned judge opined as follows: “(2) A case of trafficking founded on s.2 of the DDA does not require the court to invoke a presumption of possession, custody or control. A case of trafficking under s.2 of the DDA was sustainable when there is evidence to that effect which necessarily include the buying and selling of dangerous drugs."

See also the case of PP v Mansor Md Rashid & anor [1997] 1 CLJ 233 (FC);[1996] 3 MLJ 560.

On 9.9.2020, the agent provocateur D/KPI Kumar (SP4) contacted the $ ^{1st} $ accused who then approached SP4's car. The $ ^{1st} $ accused asked SP4 'Are u Boy?' to which SP4 replied 'yes.' The negotiation for sale took place in the car when the $ ^{1st} $ accused entered the car and counted the money (RM4,800.00) passed to him by SP4. Once satisfied, he called another individual ( $ ^{2nd} $ accused) to confirm that SP4 had the money and to meet them.

Subsequently the $ 1^{\mathrm{st}} $ accused got out of the car and instructed SP4 to follow him. The $ 1^{\mathrm{st}} $ accused and the agent provocateur D/KPL Kumar (SP4) then went to a stationary car where the $ 2^{\mathrm{nd}} $ accused was seated in the driver's seat.

Upon reaching the driver's side, SP4 asked to see the rokku which the $ 2^{\mathrm{nd}} $ accused duly obliged. At that point, SP4 signalled SP1 who moved in to arrest all 4 accused. Upon seeing the police, the $ 2^{\mathrm{nd}} $ accused dropped the rokku satu buku onto the car floor. The $ 2^{\mathrm{nd}} $ accused was subsequently arrested and the rokku retrieved by SP4.

The $ 1^{\mathrm{st}} $ accused attempted to flee but was apprehended by the police. The $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused were passengers in the car. See page 104 of the NOP; "S : Bagi lelaki dan serah kepada Kpl ini, serah dia macam mana? Dia buka tingkap ke serah dekat pintu ke macam mana? J : Dia belum serah lagi Yang Arif. Maksudnya bila saya dah sampai dekat kereta Preve itu saya tanya mana barang saya, that means dia telah ambil dan tunjukkan ini barang you. Lepas itu dia tanya, duit cukup tak. Masa itu saya dah bagi signal dekat team serbuan. S : Isyarat itu adalah dengan mencampakkan topi? J : Buka topi. S : Ok, Kpl berkenaan dengan lelaki yang di bahagian pemandu itu, dia duduk di bahagian pemandu kan? J : Ya Yang Arif. S : Ada orang lain tak di dalam kenderaan tersebut kalau Kpl masih ingat? J : Ada 2 orang. S : 2 orang duduk di mana? J : 1 sebelah pemandu dan seorang lagi belakang."

The admissibility of the evidence of agent provocateur SP4 is provided for in s40A of DDA which reads as follows: Section 40A. Evidence of agent provocateur admissible.

Notwithstanding any rule of law or the provisions of this Act or any other written law to the contrary, no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or abetted the commission of an offence by any person under this Act if the attempt to abet or abetment was for the sole purpose of securing evidence against such person.

Notwithstanding any rule of law or this Act or any other written law to the contrary, and that the agent provocateur is a police officer whatever his rank or any officer of customs, any statement, whether oral or in writing made to an agent provocateur by any person who subsequently is charged with an offence under this Act shall be admissible as evidence at his trial.

In the off-cited case of Wan Mohd Azman Hassan v PP [2010] 4 CLJ 529 (FC) where his lordship Dato Abdul Hamid Embong FCJ had opined as follows: "[10] An agent provocateur may thus be defined as one who provokes or suggests the commission of an offence to another person hoping that the latter will go along with his suggestion so that the other person may be convicted of the offence the agent provocateur suggested. In the Dictionary of Law by LB Curzon, he is defined as a person: who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds to inform against him in respect of such offence. [12] As for the creditworthiness of an agent provocateur as a witness Spencer Wilkinson J in Teja Singh made the following remarks: It appears from the extract above quoted that the learned author of Roscoe's Criminal Evidence classed agents provocateur in the same category as spies, informers and detectives. I have no doubt that there may be witnesses in any of these categories who may be wholly unworthy of credit but in my view the credit of any such witness depends upon the facts of each particular case and not upon the particular label which can be attached to him. [13] This observation of the creditworthiness of an agent provocateur is now enshrined in s 40A(1) of the Act which now provides that presumption on creditworthiness."

The evidence of SP4 is corroborated by the evidence of SP1 who was part of the team who had arrested all 4 accused.

Additionally, the court should take into consideration the conduct of $ 1^{\mathrm{st}} $ accused under s8 of Evidence Act (EA) namely the $ 1^{\mathrm{st}} $ accused's attempt to evade arrest by fleeing when he saw the police coming towards the car constitutes relevant evidence for the court to consider under s8 of EA. S8 Motive, preparation and previous or subsequent conduct

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

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Since a sale was negotiated between the $ 1^{\mathrm{st}} $ accused and SP4 through the telephone conversation and the subsequent events, the offence of trafficking by way of sale is considered complete once the drugs were delivered to SP4. See the case of Murulikrishna a/I Nokia v PP and other appeals [2026] MLJU 777 (CA). [49] First, the prosecution's case did not depend on proving possession by inference or presumption. It was founded upon proof of a negotiated sale and delivery. The offence of trafficking by way of sale is complete once the accused, pursuant to a concluded agreement, delivers the dangerous drugs to the intended buyer."

I am satisfied that the necessary element of selling within the definition of trafficking under s2 of DDA has been established against the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused. THIRD ISSUE Whether all 4 accused had committed the offence with a common intention under s34 of Penal Code (PC).

It is well established that when an offence is committed by multiple individuals in furtherance of a shared or pre-arranged plan, each participant is held equally accountable. Under the doctrine of joint criminal liability, each involved party is treated as if they had committed the crime entirely on their own.

S. 34 of the Penal Code (PC): "Section 34. Each of several persons liable for an act done by all, in like manner as if done by him alone. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone."

It is clear that under s34 of PC, the parties must not only participate in the design but also in the action of an offence. Merely sharing a common intention is not sufficient but must also entail actual participation in the commission of the offence by doing some act in furtherance of the common intention. See the case of Ong Teik Thai [2017] 4 MLJ 421 (FC) where his lordship Ahmad Maarop FCJ opined as follows: "with approval the decision of the Court of Appeal in Sabarudin Non v. PP & Other Appeals [2005] 1 CLJ 466 as to the necessary elements under Section 34 of the Penal Code. The principles may be distilled as follows:

the criminal act should have been done by more than one person,

when taken cumulatively, the doing of each individual act resulted in the commission of a criminal offence in furtherance of a common intention of all of them,

the act which bears a nexus to the offence need not be very substantial and need not necessarily be overt as even a covert act is enough if it was done by the co-accused in furtherance of the common intention,

in certain circumstances, an omission can amount to an act,

if the person keeps the common intention in his mind but does not do any act at the scene, he cannot be fastened with a liability for common intention."

Common intention requires prior consent or pre-planning. There must be an intention to commit the crime and the accused can only be convicted if such an intention has been shared by all the accused. It requires a prearranged plan with the prior meeting and agreement of minds. The necessary inference of common intention can be deduced from the evidence adduced or the circumstances of the case. It is a question of fact and a matter of inference from the circumstance of the case. See the case of Wan Yurihami Wan Yaacob & Anor v. PP [2010] 1 CLJ 17 (FC) where His lordship has stated as follows: [29] It is a well established principle of law in dealing with the criminal liability under s.34 of the PC that a pre-concert or pre-planning may develop on the spot or during the course of the commission of the offence, but the crucial test is that such plan must precede the act constituting the offence. The existence of such common intention is a question of fact and in each case it may be provided as a matter of inference from the circumstances of the case."

In the present case, there must have been a prearranged plan involving the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused as evidenced by the phone call between the $ 1^{\mathrm{st}} $ accused and $ 2^{\mathrm{nd}} $ accused. Following that call, the $ 1^{\mathrm{st}} $ accused led SP4 to approach the Car to complete the drugs transaction.

The defence counsel for the $ 1^{\mathrm{st}} $ accused submitted that the testimony of SP4 is unreliable as the handphone allegedly used to contact the $ 1^{\mathrm{st}} $ accused was never produced as evidence in court. Additionally, SP4 was unable to recall either the phone number he supposedly used or the number he purportedly called. Consequently, the defence counsel asserts that the incident described by SP4 never occurred. In fact, the $ 1^{\mathrm{st}} $ accused was arrested in front of his apartment's shop-lot when he came down to park his car. Needless to say, the $ 1^{\mathrm{st}} $ accused denies ever walking with SP4 to the Car.

However, the evidence of SP4 regarding the phone calls cannot be excluded under s40A of DDA. See the federal court case of Wan Mohd AzmanHassan (supra) where his lordship opined at para 15: [15] Under s 40A of the Act, the evidence of the agent provocateur cannot be excluded in the exercise of judicial discretion (see Evidence Practice and Procedure, 3rd edn by Augustine Paul). An otherwise admissible evidence such as this one under s 40A of the Act does not become inadmissible merely because it had been improperly or unfairly obtained. Section 40A(2) of the Act affirms this admission notwithstanding any other laws, written or otherwise, to the contrary. He may thus relate the full story of what happened in his negotiations with the drugs seller and any statements made by the latter to him shall be admissible in evidence. In R v. Smurthwaite & R v. Gill [1994] 1 All ER 898, the English Court of Appeal (Criminal Division) in dismissing the appeals of two persons convicted of soliciting to murder founded on the evidence of an undercover police officer held as follows: A judge had no discretion to exclude otherwise admissible evidence merely on the ground that it had been obtained improperly or unfairly and the evidential requirement in s 78 of the 1984 Act that prosecution evidence might be excluded having regard to the circumstances in which it was obtained had not altered the substantive rule of law that entrapment or the use of an agent provocateur did not per se afford a defence in law to a criminal charge. However, if the judge considered that in all the circumstances the obtaining of the evidence in that way would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, he could exclude it. Accordingly, it was not open to the appellants to claim that had it not been for the undercover officers acting as agent provocateurs they would not have solicited the murder of their spouses and on the facts the tape recordings were in each case an accurate and unchallenged record of the actual offence being committed. They had accordingly been properly admitted in evidence."

Furthermore, the failure to produce the handphone does not undermine the testimony of SP4. After all, the subject matter of the charge P2 is possession of the drugs in the Car and not the phone. Had it been available, the phone would merely serve as corroborative evidence. To suggest that without the evidence of the phone or the recollection of the phone numbers meant that the telephone call never occurred is flawed.

If the call had never taken place, the subsequent events involving both $ 1^{\mathrm{st}} $ and the $ 2^{\mathrm{nd}} $ accused in the Car would not have transpired. Moreover, SP4 provided an account of the conversation between himself and the $ 1^{\mathrm{st}} $ accused. See page 96 of NOP. "S : Kpl, sila lihat perenggan 4 Kpl ada nyatakan bahawa Kpl telah pergi ke satu jalan di tepi Jalan Mawar 1, Taman Tampoi Indah 81200 Johor Bahru. Dan Kpl telah menghubungi lelaki India tersebut. Lepas itu Kpl ada cakap masa panggilan Kpl telah dijawab, Kpl telah memberitahu ingin membeli roku 1 buku, boleh jelaskan pada Mahkamah apa maksud benda yang berlaku itu? Boleh tak jelaskan? J : Pada jam 9.30 Insp Nasir telah arahkan saya pergi ke alamat di tepi Jalan Mawar 1, Taman Tampoi Indah, 81200 Johor Bahru. Dan selepas sampai di sana Insp Nasir telah memberikan saya 1 nombor telefon dan menyuruh saya menghubungi untuk membeli roku 1 buku, bermaksud dadah jenis ganja seberat 1 kilogram. S : Apa maksud roku 1 buku itu? Boleh tak explain? J : Roku 1 buku bermaksud dadah jenis ganja seberat 1 kilogram. S : Itu bahasa apa? J : Roku 1 buku itu adalah Bahasa Tamil. S : Ok lepas itu so apa yang dinyatakan dalam perenggan 4 selepas dah tanya roku 1 buku, baru lelaki tersebut tanya perenggan selepas itu. Seterusnya dalam perenggan 5, nombor 4 Kpl ada call lelaki tersebut dan lelaki tersebut telah tanya dekat mana Kpl berada dan Kpl telah bagitahu dekat tepi Jalan Mawar, Taman Tampoi Indah 81200 Johor Bahru, betul? J : Betul Yang Arif. S : Lepas itu Kpl boleh bagitahu Mahkamah masa kejadian Kpl menggunakan nama siapa? J : Saya menggunakan nama saya sebagai Boy. S : Dan yang saya menaiki kereta Axia dan memperkenalkan nama saya Boy itu adalah merujuk kepada Kpl lah? J : Ya. S : Selepas itu dalam penyata saksi perenggan 5 ada dinyatakan jumlah, berapa banyak jumlah yang dipersetujui antara Kpl dan lelaki India tersebut? J RM4800.00. S : Agak-agak Kpl, perbualan di antara Kpl di perenggan 4 itu sehingga perenggan 5 itu berapa lama perbualan tersebut? Anggaran berapa lama? Masih ingat? J : Tak ingat Yang Arif. S : Selepas itu Kpl ada bagitahu dekat perenggan 5 juga setelah Kpl dah bersetuju dengan lelaki tersebut Kpl telah mematikan telefon betul? J : Betul Yang Arif. S : Selepas itu apa berlaku? J : Selepas itu saya telah memberitahu kepada Insp Nasir tentang perbualan saya. S : Lepas itu apa maksud dekat sini, selepas itu dia matikan telefon saya terus memberitahu kepada Insp Nasir berkaitan harga yang ditawarkan oleh lelaki India dan pada masa sama juga lelaki India tersebut akan datang ke kereta saya. Maksudnya macam mana? Boleh jelaskan? J : Maksudnya lepas saya matikan telefon, saya telah memberitahu Insp Nasir B1 telah setuju akan jual dadah jenis ganja berat 1kg dengan harga ini."

The case of Idris bin Harun v PP [2009] CLJU 660 (CA) where the court said as follow: "It is a consistent testimony that there was a prior arrangement between SP6 and the appellant for the delivery of the offending drugs and it had crystallised. In the circumstances, we are of the opinion that the evidence led by the prosecution in respect of the telephone conversation is well supported by the evidence of the sequence of events that took place at the scene of crime. There is no need therefore for any further corroborative evidence of any recording of any conversation between SP6 and the appellant nor is there any need to produce the telephone bills of SP6 or the appellant as corroborative evidence."

The contention that the $ 1^{\mathrm{st}} $ accused was arrested in front of his apartment shop lot while parking his car does not resonate with the facts. It was only by following the $ 1^{\mathrm{st}} $ accused to the Car that SP4 met the $ 2^{\mathrm{nd}} $ accused who was in the Car. Without the $ 1^{\mathrm{st}} $ accused's specific directions, SP4 would not know where the car or drugs were located.

Additionally, when SP4 raised his concern about security, the $ 1^{\mathrm{st}} $ accused pointed out a person on a nearby motorbike whose role was to act as a lookout. That person Arul a/l Marimuthu (Arul) was subsequently arrested but released by police following an investigation. The arrest report is in P4. The conversation is at 100 of NOP. "S : Ok selepas cukup kira tersebut Kpl ada cakap semasa dia kira duit saya, saya telah tanya mana jamma. Boleh bagitahu Mahkamah jamma itu apa? J : Jamma itu adalah barang. Dalam Bahasa Tamil jamma itu bermaksud kod dia. Maksudnya barang salah. S : Lepas itu Kpl juga ada cakap, apa Kpl cakap semasa Kpl tanya mana jamma, dan Kpl cakap apa lagi? J : Saya cakap mana jamma, maksud saya mana barang, dia cakap bila saya tanya mana barang, saya cakap cepat sikit saya nak keluar daripada tempat sini sebab saya takut. S : Lepas itu? J : Lepas itu Mukuti cakap you jangan risau, sini ada jaga air saya. S : Yang jaga air ini dia memberitahu saya jangan takut, you nampak tak lelaki yang duduk atas motor itu adalah tani pakuruvan jaga air saya. Boleh bagitahu Mahkamah apa maksud tani pakuruvan? J : Tannipakruvan bermaksud jaga air. S : Jaga air itu dalam konteks ini macam mana? J : Jaga air itu akan memberitahu sekiranya ada polis datang ke apa.

Despite attempts by the police to locate Arul, he could not be found and was not called as a witness. Consequently, the prosecution sought to admit a statement by Arul recorded under s112 of Criminal Procedure Code. It is incumbent on the police to show that they took all reasonable steps to secure Aruls' attendance. See the case of PP v Lee Jun Ho & ors [2011] 6 MIJ 220 (CA). Furthermore, the law requires strict proof to explain the non-availability of Arul. See the case of Tee Hock keong v PP [2021] 1 LNS 497 (CA).

Initially during trial, I overruled the objection from the $ 2^{n d} $ accused counsel and admitted the s112 statement from Arul as exhibit P27. However, subsequent review of the steps which the police took to secure the attendance of Arul led me to conclude that the police had failed to strictly comply with the requirements of s32 of EA. I am constrained to rule P27 as inadmissible as evidence of hearsay. As such, P27 will not be taken into consideration. See the case of Shamugam s/o Kanapathy v Pappah d/o Chinniah Nadar [1994] 2 CLJ 265 at page 269, his lordship Edgar Joseph Jr, SCJ had opined as follows: "Counsel for the defendant had objected to the admissibility of the two letters, P3 and P4, on the ground that it was hearsay, the uncle not having been called to testify. Counsel for the plaintiff replied that he would comply with s 32 of the Evidence Act 1950. I overruled the objection subject to compliance with s 32 of the Evidence Act 1950. At the end of the day, however, no attempt had been made to comply with the strict requirements of s 32; not even the prerequisites of that section, let alone any of the exceptions laid down therein. In my view, therefore, these letters are inadmissible in evidence being hearsay, and I rule that they are worthless as evidence."

The conversation about Arul between SP4 and the $ 1^{\mathrm{st}} $ accused was not denied by the $ 1^{\mathrm{st}} $ accused. This implies that if the $ 1^{\mathrm{st}} $ accused intended only to park his car in front of his apartment shop-lot, no conversation about Arul or identifying Arul as a lookout person would have occurred. Consequently the $ 1^{\mathrm{st}} $ accused's claim that he was merely parking his car at the time of his arrest is highly improbable.

Furthermore, given Arul's minor role, if any, his absence is not considered material to the drugs transaction between SP4 and $ 1^{\mathrm{st}} $ accused. The principle establishing the prosecution's absolute discretion in selecting which witnesses to call is well settled in law. See the case of Ti Chuee Hiang v PP [1995] 2 MLJ 443 (FC).

The accused contended that since Arul was initially arrested and remanded with all the accused meant that he was a suspect. An adverse inference under s 114(g) EA should be drawn on the failure to call Arul as a witness. The defence cited the case of Abdul Hadi Ahmad v PP [2014] 2 CLJ 145 (CA). The facts of the case of Abdul Hadi Ahmad are as follows: i. The appellant (Abdul Hadi Ahmad) on 4.7.2004 was arrested for suspected trafficking of drugs in the car BES 1104 on the roadside in front of Sunway Lagoon Resort Hotel (Hotel) at Jalan PJS 11/15, Bandar Sunway, Petaling Jaya, Selangor. At the same time, Rezky Mulya (Rezky) was apprehended in the Hotel lobby. A search conducted by SP5 on Rezky and his car WHA 470 did not reveal any incriminating items. However, SP5 testified that he smelled cannabis when he opened the car boot WHA 470. ii. Both the appellant and Rezky were taken to the police station at IPK, Selangor along with the seized drugs. At the station, both men signed the search list, marked as exhibit P15. iii. Both appellant and Rezky were remanded and subsequently charged under s 34 of Penal Code in the Magistrate Court. While. Rezky was released from this charge, he immediately re-arrested under the Dangerous Drugs Act (Special Preventive Measures) Act 1985. After serving a 60-month sentence, Rezky was deported back to Indonesia. iv. In the meantime, the appellant was charged for an offence under s39B(2) DDA in the Shah Alam High Court (case No: 45A -120-2005). Although Rezky was named as the 16th witness on the prosecution's list, he was never called to testify because his whereabouts could not be determined following his deportation. v. During cross examination, prosecution witness SP11 admitted that Rezky was an important witness to the events leading to the arrest of both the appellant and Rezky. vi. The Court held that failure to produce Rezky as a witness resulted in the appellant being prejudiced and deprived his rights to a fair trial."

In our case, Arul who was on his motorbike near the scene of the incident played no role in the drug transaction. It was the $ 1^{\mathrm{st}} $ accused who identified Arul as a lookout person to SP4. However, there was no interaction whatsoever between Arul and $ 1^{\mathrm{st}} $ accused including SP4. Had the $ 1^{\mathrm{st}} $ accused not identified him, the police would likely have remained unaware of Arul's presence. More than mere identification by the $ 1^{\mathrm{st}} $ accused is required.

Although Arul was initially arrested along with all the accused, he was released following a police investigation. Arul's testimony, if available, would be that of a bystander who observed the sequence of events from the initial call between the $ 1^{\mathrm{st}} $ accused and SP4 to the handing over of the drugs by the $ 2^{\mathrm{nd}} $ accused in the Car. Given that testimony of SP4 is admissible under s40 DDA, Arul's absence as a witness does not prejudice the accused to a fair trial.

The $ 2^{\mathrm{nd}} $ accused claimed that there was no proof such as phone recordings, details of the numbers called and no phones produced in court to verify that SP4 had contacted anyone. He alleged that it was doubtful whether SP4 had called the $ 1^{\mathrm{st}} $ accused (Prakash) or that the $ 1^{\mathrm{st}} $ accused had called the $ 2^{\mathrm{nd}} $ accused.

However, it is undisputed that the $ 1^{\mathrm{st}} $ accused was with SP4 at the time of the arrest. If so, how did the $ 1^{\mathrm{st}} $ accused meet SP4? Since there was no evidence suggesting that SP4 knew or had previous dealings with $ 1^{\mathrm{st}} $ accused, his presence at the meeting could only be explained by the phone call between the $ 1^{\mathrm{st}} $ accused and SP4.

Following the phone call between them, the $ 1^{\mathrm{st}} $ accused contacted the $ 2^{\mathrm{nd}} $ accused. Thereafter they walked to the car where the $ 2^{\mathrm{nd}} $ accused was the driver and the other 2 accused were passengers. The arrest occurred after the $ 2^{\mathrm{nd}} $ accused handed over the drugs to SP4. The facts of our case are distinguishable from those in the Federal Court of Chan King Yu v PP [2009] 1 CLJ 601(FC).

In Chan King Yu's case, the learned Judge opined that the telephone details were essential as they would lead to the discovery of Man Chai who played a key role in the arrest. The existence of Man Chai was disclosed by the accused in his cautioned statement. Hence the failure to disclose the details of the phone meant that the accused's version of Man Chai's involvement was not investigated.

Contrast with the facts in the case of Chan King Yu, the details of the phone numbers here are unnecessary because they would only confirm a call took place between the $ 1^{\mathrm{st}} $ accused and $ 2^{\mathrm{nd}} $ accused.The fact the phone call took place cannot be denied as it was specifically because of this call that the $ 1^{\mathrm{st}} $ accused and SP4 approached the Car. Without that call to the $ 2^{\mathrm{nd}} $ accused by the 1st accused, SP4 would have been unaware of the drugs and that the $ 2^{\mathrm{nd}} $ accused was keeping them inside the car.

Moreover, the evidence of SP4 as agent provocateur on the calls is admissible under s 40A of DDA as dealt with in paragraph above. Since there was direct evidence from SP4, the phone numbers and phone would only be corroborative evidence. It is critical to highlight that the $ 2^{\mathrm{nd}} $ accused was caught in the act of passing the drugs to SP4. Additionally, there have been no allegations of malice or bad faith directed toward SP4 nor any motive suggested to falsely implicate either of the accused.

The $ 2^{\mathrm{nd}} $ accused raised the issue of discrepancies between the testimonies of the arresting officer (SP1) and SP4 regarding who found the drugs and location of all 5 accused at the time they were arrested.

As to who found the drugs, SP1 stated in both his witness statement PSSP1 and police report TAMPOI/013605/20 (P4) that SP4 had handed the drugs to him. However, the Search List (P5), stated that it was SP1 who had found the drugs. When SP4 was questioned about P5, he agreed that it was incorrect as it was him who had found the drugs.

I do not find these discrepancies to be fatal. The evidence of SP1 and SP4 showed the $ 2^{\mathrm{nd}} $ accused passed the drugs to SP4. It was only after SP4 gave the agreed sign that SP1 and his officers arrived at the scene. This sequence of events was documented in SP1's statement PSSP1 and P4. Given that the search list P5 was prepared by SP1, the mention of his own name can be considered a clerical error.

As to the location of the 5 accused, in his statement PSSP1 and report P4, SP1 stated that after the 5 accused were arrested, he brought them towards the said Proton Preve. See para 10 of PSSP1: "10. Setelah kelima-lima suspek ditahan, saya bawa kesemua suspek ke arah kereta Proton Preve tersebut dan ejen provocator D/KpI 175889 Kumar menyerahkan (1) ketulan mampat daun-daun kering disyaki dadah ganja (ditandakan mn)(A/B: 1020 gram) kepada saya."

However, SP4's evidence was that the $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused did not leave the Car until the police arrested them. In fact, SP1 in his narratives in PSSP1 and P5 failed to mention the $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused leaving the Car. See para 6 to 9 of PSSP1: "6. (T1) telah datang berjumpa dengan ejen provocator D/kpl 175889 Kumar ditepi jalan itu. Selepas (10) minit datang sebuah kenderaan jenis Proton Preve berwarna perak no pendaftaran WXK 6985 yang dinaiki oleh (3)(L)(1) iaitu (T2) (T3) dan (T4) berhenti di tepi Jalan Mawar 1, Tampoi Indah 81200, Johor bahru. (T1) bersama ejen provocator telah pergi ke arah kereta jenis Proton Preve tersebut.

Saya nampak ejen provocator D/Kpl 175889 Kumar telah memberi isyarat kepada pasukan serbuan dan saya bersama anggota serbuan terus membuat serbuan terhadap kereta itu. Butir-butir diri:- (T1) Prakash A/L Renganathan Kpt:920503-01-5063 (T2) Suresh A/L Sundaramokan Kpt:930815-08-5529 (T3) Naventhran Pathar A/L Arumugam Kpt:990309-08-6179 (T4) Viknesvaran A/L Rajandharan (akuan lisan) Kpt:011228-01-1501

(T2) telah ditangkap oleh ejen provocator D/kpl 175889 Kumar. (T3) dan (T4) pula ditangkap oleh D/Sjn 121484 (Amer), Kpl 143893 (Shafiq), D/Kpl/W 167132 (Emiliani) dan Konst 210550 (cyprian).

(T1) telah cuba melarikan diri dan berjaya ditangkap oleh saya dan L/kpl 192755 (Coliver) setelah berlaku pergelutan. (T5) yang sedang duduk diatas motosikal honda future no pendaftaran JPA 5047 berhampiran (T1) - (T4) ditangkap pula telah ditahan oleh D/Sjn 156076 (Faizal). Butir-butir diri: (T5) Arul A/L Marimuthu (Akuan Lisan) KPT: 860929-40-5075”

Consequently SP1's statement remains unclear regarding his claim that he brought the 5 accused to the Car. Given that the 3 accused were already in the car, his statement could only logically refer to the $ 1^{\mathrm{st}} $ accused, who attempted to run away and Arul. Although SP1 offered no explanation for this discrepancy during trial, it is not deemed to be material. There was no dispute as to the location of the respective accused at the time of the incident. None of the accused had claimed that they were arrested elsewhere and subsequently brought to the scene.

Regarding the search list P5 in which the $ 2^{\mathrm{nd}} $ accused highlighted discrepancies involving the lack of signature of the arresting officer SP1 and Gayathrey a/p Arumugam (Gayathrey). In his examination in chief, SP1 clarified that while the arrest of the 4 accused, Arul and Gayathrey were carried out around 9pm on 9.9.2020, they did not arrive at the police station until after midnight on 10.9.2020. Since the formal marking took place in the presence of all 6 of them, Gayathrey was requested to sign P5 as a witness. See page 13 & 14 of NOP. “S : Boleh bagitahu saya di dalam search list tersebut siapa tandatangan? J : T2 Prakash, T2 Nevindran, T3 Suresh, T4 Vikneswaran, T5 Arul dan 1 lagi perempuan yang ditahan di rumah tersebut Yang Arif. S : Soalan saya di mana tandatangan ASP? J : Tiada Yang Arif. S : Boleh jelaskan kenapa tiada? J : Sepatutnya saya menandatangani di sebelah bawah sebelah kanan, pegawai yang menjalankan pemeriksaan. Akan tetapi kesilapan di sini OKT yang menandatangani borang ini Yang Arif. Maaf Yang Arif. S : Tapi boleh bagitahu Mahkamah adakah ini borang yang ASP telah meminta keenam-enam termasuk Gayathrey ini untuk tandatangan? J : Betul Yang Arif. S : Soalan saya seterusnya, kenapa Gayathrey yang mana tidak ditahan di tepi Jalan Mawar, Taman Tampoi Indah Johor Bahru itu diminta untuk tandatangan dalam borang ini? J : Borang senarai geledah ini saya keluarkan kepada OKT di pejabat IPD JBU memandangkan faktor keselamatan Yang Arif. Untuk kes ini, pada ketika itu lebih kurang pukul 1 pagi dah 10.9, kita buat tangkapan 9.9 Yang Arif tapi borang ini dikeluarkan 10.9 lebih kurang pukul 12.30 hingga 1 pagi Yang Arif di pejabat JBU. Jadi pada ketika itu, Gayathrey ada dekat pejabat sekali dan menandatangani borang ini. S : ASP cakap apa tadi, satu persatu? J : Gayathrey juga ditangkap dalam serbuan ini tetapi dalam report berasingan Yang Arif. Jadi ketika berada di pejabat JBU Gayathrey juga menyaksikan rampasan dan saya tandatangan dadah tersebut Yang Arif. S : Tadi ASP ada maklumkan juga berkenaan tarikh, boleh maklumkan kejadian 9.9 kenapa borang geledah 10.9? J : Untuk faktor keselamatan Yang Arif, selepas buat serbuan saya terus membawa kesemua OKT ke IPD JBU. Jadi borang ini dikeluarkan lebih kurang pukul 12 tengah malam - 1 pagi di pejabat IPD JBU. Jadi tarikh itu dah bertukar Yang Arif daripada 9 ke 10hb."

Since Gayathrey witnessed P5, the defence argued that Gayathrey is a material witness. However, it is undisputed that Gayathrey was not arrested near the Car but rather in the apartment which the $ 1^{\mathrm{st}} $ accused led the police. Gayathrey's testimony would not provide any insight into the drugs transaction occurring in the Car. Furthermore, she was arrested after the 4 accused and Arul. Given such circumstances, the fact that Gayathrey signed P5 does not make her a material witness.

The defence submitted that P5 is incomplete due to the absence of SP1's signature and specific details of the police report and police station. SP1 in the re-examination clarified that when he prepared P5, he had not yet lodged the report. However, SP1 admitted to omitting his signature on P5. Considering the preceding events and the lateness of the night, this omission is not fatal. Ultimately, all 4 accused, Arul and Gayathrey who witnessed the marking, duly signed P5. See page 69 and 70 of NOP; "S : ASP sila lihat P5, can I lump sum all the question from the lawyer $ 2^{\mathrm{nd}} $ accused and $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused about P5. Ok, ASP tadi untuk berkenaan P5 itu berkenaan lawyer tertuduh kedua, ketiga dan keempat, ada tanya berkenaan dengan P5 tersebut. Mereka cadangkan kepada ASP bahawa P5 ini bukan ASP yang buat. ASP tak setuju. ASP kata ASP yang buat. Betul? J : Betul Yang Arif. S : Juga mereka ada cadangkan bahawa P5 ini tak lengkap, betul? J : Betul Yang Arif. S : Tak lengkap sebab tak ada nombor report, tak ada nombor balai juga tak ada tandatangan ASP. J : Betul Yang Arif. S : Dan juga untuk lawyer OKT 3 dan 4 ada cakap dokumen P5 inipenting. Betul? J : Betul Yang Arif. S : Jika kalau benda ini penting disebabkan ia digunakan untuk pendakwaan. ASP jawab tak pasti. J : Betul Yang Arif. S : Soalan saya, boleh tak beritahu Mahkamah kenapa ASP cakap benda ini penting tapi benda ini tak lengkap. Boleh jelaskan pada mahkamah? J : Dengan izin Yang Arif, untuk borang geledah format dibuat oleh kita sendiri Yang Arif. Cuma nombor balai dan nombor report ketika kita menulis borang geledah belum ada, so memang kita tak tulis. Benda ini kita dah tulis dah selesai baru kita buat report Yang Arif. So masa ketika itu nombor report dengan nombor balai memang belum ada Yang Arif. S : Bagaimana dengan lengkap itu, tandatangan, bagaimana? J : Lengkap bermaksud column balai, column nombor report, nombor geledah jika ada dalam bracket. Jadi itu tidak menjadi satu kewajipan Yang Arif. S : Tandatangan? J : Tandatangan maaf Yang Arif tandatangan memang saya lupa turunkan dekat sini Yang Arif."

The $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused contended that they neither knew nor participated in the drugs transaction. The $ 3^{\mathrm{rd}} $ accused had been invited to dinner by the $ 2^{\mathrm{nd}} $ accused. After dinner, the $ 2^{\mathrm{nd}} $ accused was supposed to fetch him home.

Meanwhile the $ 4^{\mathrm{th}} $ accused who had earlier attended a job interview at Flextronic in Taman Teknologi, Skudai, Johor, asked the $ 2^{\mathrm{nd}} $ accused for a ride home with him. The $ 4^{\mathrm{th}} $ accused had called the $ 2^{\mathrm{nd}} $ accused from Paradigm Mall. The $ 2^{\mathrm{nd}} $ accused agreed to the request provided that the $ 4^{\mathrm{th}} $ accused meet him at a restaurant at Jalan Mawar 2.

The $ 4^{\mathrm{th}} $ accused subsequently walked to the restaurant to meet the $ 2^{\mathrm{nd}} $ accused. The relevant school certificates (P23) of the 4th accused were found in the Car's seat pocket. See the written statement of the 4th accused recorded under s 37(A) of DDA as exhibit D24.

Hence were both the $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused at the wrong place at the wrong time? The evidence adduced the testimony of SP1 and SP4 relates more towards the involvement of the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused. It is noted that although mobile phones of both accused were seized by police, no incriminating information was found.

Moreover, the discovery of the $ 4^{th} $ accused's school certificates P23 within the Car's seat supports the $ 4^{th} $ accused's account. Additionally, SP4's stated that the $ 3^{rd} $ and $ 4^{th} $ accused did not participate in the drugs transaction. See page 166 of NOP. "S : Setuju OKT 3 dan 4 ini tidak terlibat dengan transaksi jual beli dadah tersebut?

It is trite that proof of proximity alone is insufficient to establish knowledge and possession. See the case of Romi Amora Amira v PP [2011] 1 CLJ 870 where the learned judge succinctly opined as follows: "Unless knowledge is proved, an item however close to a person, could just be miles away."

Regarding the $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused, reliance on the proximity of being in the Car with the 2nd accused is insufficient. The prosecution had to provide evidence of any pre-arranged plan between them and either the $ 1^{\mathrm{st}} $ or $ 2^{\mathrm{nd}} $ accused. Despite seizing the phones of $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused, the prosecution could not demonstrate any communication or pre-arranged plans relating to unlawful activities between the parties. Consequently, the prosecution has failed to prove prima facie evidence of common intention involving the $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused.

The $ 1^{\mathrm{st}} $ accused acted as the negotiator and the guide. He finalized the price, verified the payment, before leading SP4 to the $ 2^{\mathrm{nd}} $ accused. The $ 2^{\mathrm{nd}} $ accused acted as the supplier and distributor. Upon SP4's arrival, the $ 2^{\mathrm{nd}} $ accused reached under his seat, produced the drugs, and simultaneously asked SP4, "duit cukup tak?" (is the money enough?). See page 104 of NOP: "S : Bagi lelaki dan serah kepada Kpl ini, serah dia macam mana? Dia buka tingkap ke serah dekat pintu ke macam mana? J : Dia belum serah lagi Yang Arif. Maksudnya bila saya dah sampai dekat kereta Preve itu saya tanya mana barang saya, that means dia telah ambil dan tunjukkan ini barang you. Lepas itu dia tanya, duit cukup tak. Masa itu saya dah bagi signal dekat team serbuan.

The $ 2^{nd} $ accused's expectation for payment clearly indicated he was a knowledgeable participant in the prearranged drug deal. It is also to be noted that the evidence concerning the interaction, specifically the $ 2^{nd} $ accused asking SP4 "duit cukup tak", was not even challenged by the $ 2^{nd} $ accused's counsel during cross-examination.

Hence, the evidence adduced by the prosecution shows that both $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused acted together with common intention to effect the sale of Cannabis to SP4. FOURTH ISSUE Whether there was a break in the chain of evidence as presented by the prosecution

The prosecution has to show that the chain of evidence from the period that the drugs listed in the search list P5 were recovered by SP1 and were then handed over to SP5 before being submitted to the chemist department until the completion of the analysis by the chemist SP6 are the same substances namely Cannabis. See the case of Gunalan Ramachandran & anor v PP [2004] 4 CLJ 551 (CA).

According to the evidence of SP1, the drugs in P5 which were duly marked and signed by the 6 accused were delivered to SP5 on 9.9.2020 before being handed over to the Department of Chemistry Malaysia on 14.9.2026 in a box marked as 'S'.

All 4 accused did not suggest any break in the chain of evidence nor any issue of tampering of evidence from the time the drugs were recovered from the Car to the completion of the analysis of it and subsequent presentation of it in court.

As such, the court is satisfied that there is no break in the chain of evidence. See the case of Christopher Uchenna Efogwo v PP [2017] 1 LNS 1479. FIFTH ISSUE Whether the prosecution has successfully made out a prima facie case against all 4 accused.

At the end of the prosecution case, after I subjected the prosecution evidence and testimonies by their witnesses to a maximum evaluation I find that the prosecution has successfully established a prima facie case against the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused for trafficking under s2 of DDA. Accordingly, the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused were called upon to enter their defence.

However, for the $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ accused, I acquitted them after determining that the prosecution failed to establish a prima facie case against them. No appeal was filed by the prosecution against this acquittal. DEFENCE CASE Whether the defence had managed to raise any reasonable doubt on the prosecution case.

I called upon them to enter their defence. Both $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused elected to give their respective sworn evidence from the witness box.

The brief facts alluded to from the respective accused's testimony can be summarised as follow: 1 $ ^{1 \mathrm{st}} $ accused i. The $ 1^{\mathrm{st}} $ accused is married with 2 children. He was employed as a wireman prior to the arrest. ii. He was staying in a flat with 3 flatmates on the $ 3^{rd} $ floor above a shoplot at No. 03-2B Jalan Mawar, Taman Tampoi Indah, 81200, Johor Bahru, Johor Darul Ta'zim. iii. On 9.9.2020, around 8.30pm when he arrived home from work, he found his carpark was occupied. As a result of which he parked elsewhere. At around 9.20pm, after dinner he noticed that his parking lot was vacant and went down to move his car. However, before he could do so, the police arrested him in front of the car. iv. He maintained that he does not know the $ 2^{\mathrm{n d}} $ accused including Arul a/l Marimuthu. v. Furthermore, he denies being contacted by SP4 or agreeing to sell drugs to SP4. He asserts that he did not enter SP4's car to count money. Neither did he request SP4 to follow him to another car or point out Arul as a lookout when SP4 voiced safety concerns. He further contends that he did not have his mobile with him when he went down to move his car as he left his mobile phone in his house.

Based on the $ 1^{\mathrm{st}} $ accused's testimony, he claimed to be an "innocent bystander." The defence counsel argued that SP4 is an unreliable witness as he could not recall his own phone number or the number of the person he contacted. Furthermore, SP4 was unable to provide details of the money shown to the $ 1^{\mathrm{st}} $ accused.

However, the evidence and credibility of SP4 as an agent provocateur have been addressed above. The inability of SP4 to recall specific details as alleged must take into account that the incident happened 5 years ago, specifically 9.9.2020.

The $ 1^{\mathrm{st}} $ accused failed to establish that if he was indeed an innocent bystander, how or why the police arrested him? There was no allegation of malice or ulterior motives on the part of the police.

Further he was not arrested within close proximity of the $ 2^{n d} $ accused's car. If the $ 1^{s t} $ accused's contention that he was arrested in front of his car is true and was not in contact with the $ 2^{n d} $ accused, the police would not know of the location of the $ 2^{n d} $ accused's car. After all, it was only by following the $ 1^{s t} $ accused that SP4 knew of the location of the $ 2^{n d} $ accused's car. This indicates that the $ 1^{s t} $ accused was aware of the $ 2^{n d} $ accused's car.

In any event, there was the bystander Arul a/l Marimuthu who was near the scene and was initially arrested, only to be released by the police following an investigation. The $ 1^{\mathrm{st}} $ accused argued that Arul was a material witness whose testimony could clarify the events. He maintained that the prosecution's failure to call Arul as a witness should warrant an adverse inference to be drawn under s 114 (g) of Evidence Act.

It is important to note that Arul who was on his motorbike nearby was identified by the $ 1^{\mathrm{st}} $ accused to be a lookout person. However, he was released without any charge following an investigation. This indicates that the police would not have arrested the $ 1^{\mathrm{st}} $ accused unless the $ 1^{\mathrm{st}} $ accused was involved with the drugs transaction.

Additionally, the $ 1^{\mathrm{st}} $ accused claimed that his usual park was initially occupied and he only went down from his apartment later in the evening to park his car once the space became vacant. If this is true, the $ 1^{\mathrm{st}} $ accused should provide more than a bare assertion to support his version of the event. After all, the $ 1^{\mathrm{st}} $ accused has 3 flatmates including Gayathrey (who was initially arrested but released following investigation) who could have testified on his behalf. However, no one came forward to testify.

Hence looking at the evidence in totality, I find the evidence and explanation from the $ 1^{\mathrm{st}} $ accused to be an afterthought and bare denial. 2 $ ^{n d} $ accused i. The $ 2^{\mathrm{nd}} $ accused was employed as a manager in a tyre shop earning a monthly salary between RM 4,500.00 to RM 5,000.00. ii. On 9.9.2020, the $ 2^{nd} $ accused and Naveen $ (3^{rd} $ accused) went to a coffee shop for dinner. During the meal, Vicky $ (4^{th} $ accused) called the $ 2^{nd} $ accused to request a ride home. The $ 2^{nd} $ accused agreed and asked Vicky to meet them at the coffee shop. Not long after that Vicky joined them. iii. During the meal, Naveen borrowed the $ 2^{n d} $ accused's car without informing the $ 2^{n d} $ accused where he was going. After Naveen returned and the group finished their meal, all of them went into the $ 2^{n d} $ accused's car. The $ 2^{n d} $ accused was the driver and Naveen sat on the passenger seat beside him. Vicky was seated behind the $ 2^{n d} $ accused. See page 288 of NOP. "S : Sekejap, Vicky telefon kamu. Kamu dan Naveen saja keluar dari rumah. Vicky telefon, so kamu ambil Vicky dan Vicky sana, ke? Saya tak boleh leading, tolong cerita. J : Saya dan Naveen telah pergi dan duduk di kedai. Selepas itu Vicky telah tiba di kedai Yang Arif. Selepas itu kami semua telah makan. Naveen kata dia nak pinjam kereta saya Yang Arif. Saya park kereta saya di luar parking Yang Arif, bukan di hadapan kedai. Naveen minta nak pinjam kereta saya sebab dia nak keluar. S : Ada Naveen bagitau ke mana dia nak pergi? J : Dia tak bagitau. S : Lepas itu apa jadi? J : Lepas makan saya nak pergi bayar Yang Arif. Selepas saya bayar saya telah pergi ke kereta dengan kawa-kawan saya. S : Kawan-kawan ini merujuk kepada siapa? J : Naveen dan Vicky serta saya Yang Arif. S : So semua naik dalam kereta. Sekejap. Sya belum tanya lagi. Kamu semua duduk dalam kereta. Siapa pandu kereta? J : Saya yang pandu kereta." iv. While the $ 2^{\mathrm{nd}} $ accused was driving, Naveen requested the $ 2^{\mathrm{nd}} $ accused to stop by the side of the road because Naveen wanted to give something to a friend who would be passing by. The $ 2^{\mathrm{nd}} $ accused did not know Naveen's friend. v. When Naveen's friend arrived at the driver's side of the car, Naveen passed a black plastic package to the $ 2^{n d} $ accused to hand over to his friend. Just as the $ 2^{n d} $ accused was about to hand over the black plastic package to Naveen's friend, the Police shouted. At that moment, the $ 2^{n d} $ accused dropped the black package onto the car floor. vi. Thereafter the $ 2^{\mathrm{nd}} $ accused together with Naveen and Vicky were asked to come out from the car. They did not attempt to run away. The $ 2^{\mathrm{nd}} $ accused maintained that he had no idea what happened to the black package which he dropped onto the car floor.

The crux of the $ 2^{\mathrm{nd}} $ accused's defence is his claim that Naveen handed him the black package to pass it to Naveen's friend who had approached the side of the car. In other word, he raised the defence of momentary custody of the drugs. In support of his claim, he called Vinesvaran a/l Rajandharan (Vicky) (SD3) as his witness.

The witness Vicky was initially charged as the $ 4^{\mathrm{th}} $ accused. I acquitted and discharged him on the ground that a prima facie case was not established against him.

In brief, Vicky's evidence is as follows: i. Both Naveen and the $ 2^{\mathrm{n d}} $ accused are his friends. He does not know Arul. ii. On 9.9.2020, Vicky contacted the $ 2^{n d} $ accused to request a ride home to Taman Larkin. The $ 2^{n d} $ accused agreed. Consequently, Vicky walked from Paradigm Mall to join the $ 2^{n d} $ accused at a coffee shop Taman Mawar. While they were eating, Naveen received a phone call regarding his work. The conversation was in Bahasa India. See page 313 of NOP: "S : Okey. Stop sana. Naveen dapat panggilan. Dia cakap dalam handphone. Dalam bahasa apa? J Dalam bahasa India. S : Dalam bahasa India. Kamu dengar tak apa yang pertuturan? J : Pertuturan saya tak dengar. Tapi percakapan dia macam ada transaksi dadah. S : Apa perkataan yang dia kata? Kalau kamu dengar dan kamu tafsirkan sebagai dadah, apa percakapan dia? J : Dia cakap, saya akan sampai dekat sana. Dia kata buku. S : Buku. Dia guna perkataan buku. J : Ya, gunakan perkataan buku. S : Lepas tu, kamu buat apa? J : Lepas itu, saya ada tanya dengan dia. Awak nak pergi jumpa siapa. Dia cakap, ada kawan saya dekat sana. Dan saya nak pergi bagi dadah sama dia.” iii. From that conversation, Vicky overheard mention of a drug transaction, specifically the word "buku." Neveen told the caller that he was nearby. When Vicky asked Naveen about the call, Naveen informed him it was about a drug transaction. iv. Thereafter Naveen borrowed Suresh's car. However, Vicky did not know where Neveen went but he returned in less than 2 to 3 minutes. Once the group finished the dinner, they left in Suresh's car. Upon reaching the intersection to exit the Taman, Naveen requested that Suresh stop the car. Two men whom Vicky did not recognise as both were wearing caps, approached the car. It was then that Naveen handed over a plastic package to Suresh to pass to the man outside the car. v. When Suresh was in the midst of handing over the package, he was handcuffed by the police. It was only after about 10 mins that the police saw Vicky sitting at the back of the car. See page 315 of NOP. "S : Dia bagi. Lepas tu apa jadi? J : Lepas itu, orang yang mengambil barang itu tahan kita. Lepas tu diaorang gari Suresh sama Naveen. Saya selama 10 minit dalam kereta itu. Dia orang tak perasan saya ada dekat dalam kereta. Lepas 10 minit masa diaorang check kereta baru dia orang nampak saya ada dalam kereta. Lepas tu diaorang tanya saya, awak buat apa dekat sini? Lepas itu saya beritahu dia orang saya memang dari tadi dalam kereta ini. Tapi time tu saya pun panik, banyak takut. Saya pun tak tahu nak buat apa. S : Lepas tu kamu turun dari kereta tak? J : Ada turun. Diaorang gari saya. Lepas tu duduk di tepi jalan bawah dulu."

However, Vicky's testimony is questionable. If he claimed to have overheard the phone conversation between Naveen and the caller, it follows that Suresh would have overheard the conversation as well. If Suresh knew Naveen was allegedly involved in a drug transaction, why would he still agree to lend his car to Naveen?

Also, why would Naveen borrow the car only to return a few minutes later without delivering the drugs to the third party. Instead of waiting until they finished their dinner and driving away before asking Suresh to stop his car further down the road to hand over the drugs, there would be numerous opportunities to do so earlier like during their meal or even before driving away from the coffee shop.

Furthermore, since Naveen was not the driver and with both Vicky and Suresh were present, surely, he would be taking a significant risk that they might discover or that Suresh may simply refuse to stop the car.

Moreover, there was no phone call between Naveen and the third party once they were in the car. After all, Naveen was already aware that Suresh was the driver. It is illogical that the third party would approach the driver's side of the car to collect the drugs rather than the passenger side where Naveen was seated. Given that the transaction involved both money and drugs, it stands to reason that the exchange would have been conducted directly through Naveen.

Additionally, both the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused failed to raise this defence regarding Naveen passing the package to Suresh during the prosecution's case. The prosecution's witnesses SP1, SP4 and SP5 were not questioned on this when they were giving their testimony.

It is trite that a failure by the defence to put their case during the prosecution case is fatal to that defence. See the case of Megat Halim Megat Omar v. PP [2009] 1 CLJ 154.

When Vicky was questioned about his failure to provide the information regarding Naveen to the police, he claimed he was afraid of the police and Naveen who had allegedly threatened him. Even if this was true, he had the opportunity to disclose this to his counsel. However, Vicky neither made such a claim nor did his counsel raise this issue during the prosecution's case.

After considering the overall circumstances and the inconsistencies within Vicky's testimony, I find him to be a witness who lacks credibility.

With regards to the $ 2^{\mathrm{nd}} $ accused's defence of momentary custody that Naveen handed the drugs to him, this was not raised during the prosecution case. Furthermore, the information was also not disclosed to SP5 during the police interrogation. Had such a critical piece of information existed, the $ 2^{\mathrm{nd}} $ accused would surely have disclosed it to his counsel, if not to the police.

However much like Vicky, the $ 2^{\mathrm{nd}} $ accused did not make such a claim nor did his counsel raise this issue during the prosecution case. In any event brief custody suffices where it is an integral to trafficking. See the case of Muralikrishna a/l Nokiah v PP (CA) (supra).

Furthermore, the $ 2^{nd} $ accused's knowledge can be inferred from the surrounding circumstances. When SP4 approached the $ 2^{nd} $ accused in the Car, he was questioned regarding payment. This implies that the $ 2^{nd} $ accused expected to receive payment upon delivering the drugs to SP4. This expectation was likely based on an earlier call between the $ 1^{st} $ and $ 2^{nd} $ accused regarding the drugs sale to SP4.

Consequently, I find the $ 2^{\mathrm{n d}} $ accused's defence to be an afterthought and bare denial.

At the end of the defence case, it is a question of fact whether the defence has succeeded in raising a reasonable doubt in the prosecution's case. See the case of Azhar Lazim V PP [2012] 5 MLJ 1 (CA).

As required under s182A of Criminal Procedure Code, I evaluated the defence and considered it against the prosecution's evidence, I found that both $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused failed to raise a reasonable doubt in the prosecution's case. The prosecution has proven beyond reasonable doubt that the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused are guilty of trafficking under s2 of DDA and s34 of Penal Code as set in P2.

Following the submission of both the accused's counsel and prosecution, I sentenced the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ accused to imprisonment for life from the date of arrest. In addition, as mandated by s39B (2) DDA, there shall be a whipping of 12 strokes for each accused. Dated: 19th MAY 2026 (KAN WENG HIN) HIGH COURT OF MALAYA JOHOR BAHRU Counsel:- For the Prosecution: Tuan Umar Faiz bin Abdul Kohar Timbalan Pendakwa Raya Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato' Ja'afar Muhammad, Kota Iskandar, Nusajaya Johor Darul Ta'zim. For the Accused: 1st Accused etuan C Sukumaran & Co. (Johor Bahru) Lot 10-1B, 1st Floor Block F Medan Kota Johbase, Jalan Lambak 86000 Kluang, Johor Darul Ta'zim $ 2^{\mathrm{n d}} $ Accused Tetuan M.Thanakumaran & Shan (Sungai Petani) 51a, Lorong BLM 1/4, Bandar Laguna Merbok 08000 Sungai Petani, Kedah $ 3^{\mathrm{rd}} $ Accused Tetuan Vimala & Associates (Johor Bahru) No.22, Susur 1, Jalan Tun Abdul Razak, 85200, Johor Bahru, Johor Darul Ta'zim 4th Accused Tetuan Vimala & Associates (Johor Bahru) No.22, Susur 1, Jalan Tun Abdul Razak, 85200, Johor Bahru, Johor Darul Ta'zim