Ramachandran A/L Verasamy v Pendakwa Raya (05(L)-27-03/2025(P))

1 IN THE FEDERAL COURT OF MALAYSIA (CRIMINAL DIVISION) CRIMINAL NO. 05(L)-26-03/2025(P)

1. RAMACHANDRAN A/L VERASAMY

2. KELANA BIN YUNUS In The Court of Appeal of Malaysia (Appellate Jurisdiction) CRIMINAL NO. P-05(SH)-594-12/2023

1. RAMACHANDRAN A/L VERASAMY

2. KELANA BIN YUNUS 13/05/2026 10:53:12 05(L)-27-03/2025(P) Kand. 49 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 (In the Criminal High Court Georgetown in the State of Pulau Pinang, Malaysia Criminal Case No.: PA-45A-25-05/2019 Between Public Prosecutor

1. Ramachandran A/L Verasamy (NRIC No.: 640414-07-5797)

2. Kelana Bin Yunus (NRIC No.: 780305-07-5717)) HEARD TOGETHER IN THE FEDERAL COURT OF MALAYSIA (CRIMINAL DIVISION) CRIMINAL NO. 05(L)-27-03/2025(P)

1. RAMACHANDRAN A/L VERASAMY

2. KELANA BIN YUNUS **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 In The Court of Appeal of Malaysia (Appellate Jurisdiction) CRIMINAL NO. P-05(SH)-595-12/2023

1. RAMACHANDRAN A/L VERASAMY

2. KELANA BIN YUNUS (In the Criminal High Court Georgetown in the State of Pulau Pinang, Malaysia Criminal Case No.: PA-45A-26-05/2019 Between Public Prosecutor

1. Ramachandran A/L Verasamy (NRIC No.: 640414-07-5797)

2. Kelana Bin Yunus (NRIC No.: 780305-07-5717)) CORAM: YAA DATUK SERI PANGLIMA WAN AHMAD FARID BIN WAN SALLEH, CJ YA DATO’ COLLIN LAWRENCE SEQUERAH, FCJ YA DATUK AZIMAH BINTI OMAR, FCJ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

1. We begin by laying out the factual matrix of the cases. There are two Appellants, both of which were convicted by the trial judge for two offences under s 39B (1) (a) Dangerous Drugs Act 1952 (“DDA”). The two charges, though distinct, were heard together in a single trial.

2. The charges against the Appellants, now herein reproduced below are the version that was stated in the charge sheets as tendered in court. The charge details are as follow:

3. It is important, at this initial stage, for us to highlight that both the Court of Appeal and High Court had inadvertently, in their respective judgments, omitted to mention the charges in full, incorporating the words “dan dibaca bersama di bawah Seksyen 34 Kanun Keseksaan” despite these details being present in the original charges.

4. We find it necessary to address this matter because one of the grounds of this appeal relates to the issue of the alleged omission of s 34 of the Penal Code in the charges. **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Facts of the case 5. The salient details that led to the arrest of the Appellants are as follows.

6. On 8 August 2018, about 2:45 pm, ASP Mohd Rozaidi bin Ahmad (SP3) led a team of police officers to a condominium with the address of 1A-08-03, Sunny Ville, Jalan Batu Uban, 11700 Gelugor, Pulau Pinang (“the Unit”).

7. Upon their entry into the Unit, SP3 saw the 1st Appellant at the living room and arrested him. SP3 also arrested the 2nd Appellant by the door of the first bedroom.

8. Upon a complete search of the Unit, a huge number of drugs and manufacturing equipment were confiscated by the police. The items were found at the kitchen – inside a kitchen cabinet and drawers, the first bedroom – on the floor and in the closet.

9. The drugs were later sent to the forensic laboratory and the results were positive. They were methamphetamine, heroin and monoacetylmorphines, being dangerous drugs as listed in the DDA.

10. Other than the aforementioned items, Insp. Abdul Majis bin Heroid (SP6) who was also part of the police team for that evening, had confiscated some items found in the Unit for forensic purpose. This includes, towels, an ash tray, cigarette buds – from the living room and toothbrushes – from the bathroom in the main room. **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

11. The Appellants were charged and the trial judge had convicted and sentenced them accordingly as follows:

12. Dissatisfied, the Appellants appealed against the decision of the High Court and the Court of Appeal dismissed and affirmed the conviction and sentence of the High Court. **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 At the Court of Appeal 13. There were mainly three issues at the Court of Appeal.

14. The Court of Appeal found that both appellants jointly possessed, controlled, and had knowledge of the dangerous drugs found at the premises (first issue). This was supported by evidence including both Appellants' DNA found on cigarette butts, a towel, and a toothbrush; the large quantity of drugs and processing equipment openly visible in the first room; and the fact that only the two Appellants were present during the raid. The Court of Appeal also rejected the 2nd Appellant's defence that he no longer lived there and had only entered to trespass, finding it illogical and full of inconsistencies — particularly since the landlord (SP1) confirmed the 2nd Appellant was the tenant. The presence of other individuals' DNA at the premises did not raise a reasonable doubt, as possession of drugs need not be exclusive.

15. The Court of Appeal further found (second issue) that no adverse inference should be drawn under s 114(g) of the Evidence Act 1950 for the prosecution's failure to call the landlord's wife or son, as they were not material witnesses — it was SP1 who dealt directly with the 2nd Appellant regarding the tenancy.

16. Regarding the allegation of flagrant incompetency by the Appellants' trial counsel (third issue), the Court of Appeal held that no such incompetency was established. **Note : Serial number will be used to verify the originality of this document via eFILING portal 9

17. According to the Court of Appeal, even though certain aspects of the defence version were only raised during closing submissions rather than during cross-examination of prosecution witnesses, the learned trial judge had nonetheless considered and evaluated the defence fairly. The Court of Appeal emphasised that even if counsel had fallen short of certain professional standards, this alone cannot be used as grounds to challenge a conviction, and there was no miscarriage of justice in the handling of the case. At the Federal Court 18. In the course of his submission, learned counsel for the Appellants, argued three main points:

20. Learned counsel then further went on arguing on the elements of possession and knowledge in relation to the 1st Appellant. According to learned counsel, the landlord (SP1) have never observed the 1st Appellant entering or exiting or living in the Unit.

21. It was further contended before us that mere proximity cannot, in law, be equated to possession or knowledge, as the controlled substances were recovered from the kitchen and bedroom, whilst the 1st Appellant was found at the living area — a location distinct from the loci of discovery. It was additionally argued that the 1st Appellant’s presence at the Unit was at the invitation of the 2nd Appellant for the purpose of housebreaking.

22. Taken together, learned counsel concluded that the Prosecution failed to prove the elements beyond reasonable doubt and hence, the conviction against the 1st Appellant is unsafe. On adverse inference

23. Learned counsel went on to submit that the Prosecution failed to offer to the defence material witnesses, being the son and the wife of SP1. Hence, adverse inference under s 114(g) of the Evidence Act 1950 should be drawn against the Prosecution. Learned counsel’s argument is this. SP1 is not the registered **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 owner of the Unit. The Unit was held under his wife’s name. Therefore, SP1 could not confirm whether the 2nd Appellant was residing in the Unit after December 2017, the period after the tenancy expired.

24. Further, it was submitted that there were two other DNAs found in the Unit, to which raised the issue on who else had access to the Unit. Flagrant incompetency of former counsel

25. In alternative, learned counsel submitted on the point that the Appellants were prejudiced due to the flagrant incompetency of their counsel who represented them during the trial.

26. It was submitted that the Appellants’ then counsel had failed to conduct the trial and the defence of both Appellants fairly, competently and properly. The then counsel was said to have failed to cross-examine and challenge the evidence of the prosecution’s witnesses and had also failed to put the Defence’s case to the prosecution witnesses at the stage of the prosecution’s case.

27. It was therefore the learned counsel’s submission that in view that the Appellants’ counsel was incompetent in conducting the trial, the Appellants had suffered miscarriage of justice when the counsel failed to put forth the Defence’s case as instructed by the Appellants. **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Analysis S 34 of the Penal Code 28. Let us begin with the charges. As mentioned in the earlier part of this judgment and as reproduced in full, the charges against the Appellants had incorporated s 34 of the Penal Code. However, by the inadvertent omission of the courts below, that part of s 34 in the charges was not reflected in the grounds of judgments.

29. Therefore, we hold that the charges are neither flawed nor defective.

30. It is important to mention that since s 34 of the Penal Code was stated in the charges, there is no need for us to consider the elements of s 39B (1) (a) of the DDA against the Appellants individually.

31. Having settled that, we will proceed to deal with whether or not the learned trial judge had addressed her mind to the common intention between the Appellants.

32. The learned High Court judge, in Her Ladyship’s grounds of judgment, stated in para 22 that:

22. Keterangan material SP3 yang telah menjelma sebagai fakta adalah; a) kedua-dua OKT telah ditangkap di dalam rumah tempat kejadian; b) semasa serbuan hanya OKT berdua sahaja yang berada di rumah berkenaan; c) hasil pemeriksaan di rumah tempat kejadian, SP3 telah menemui **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 dadah dan peralatan memproses dadah dalam kuantiti yang sangat banyak; d) peralatan memproses dadah dan sebahagian dari dadah ditemui dalam keadaan terdedah dalam erti kata ianya boleh dilihat dengan jelas oleh mata kasar.

33. The issue before this Court is whether both Appellants shared a common intention within the meaning of s 34 of the Penal Code, which provides that, 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 it were done by him alone.

34. It is not disputed that both Appellants were caught in the Unit and in fact, they proceeded to the house together. This is not merely a coincidence of presence — both Appellants had admitted to this fact in the course of proceedings.

35. Upon going through the notes of proceedings in the High Court, it was clear that the 2nd Appellant, in evidence, mentioned that he said to the 1st Appellant “okey jom kita masuk”.

36. Going further, the 2nd Appellant had admitted that he was in financial need at the material time. It was this pressing financial necessity that formed the very motive and impetus for his involvement in drug trafficking. The drugs which form the subject matter of the charges were found within the Unit. The 2nd Appellant, with this motive in mind, had deliberately utilised the house keys and access card which had not been duly returned **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 to the landlord upon the termination of his tenancy, thereby gaining unauthorised access to the Unit.

37. Critically, it was the 2nd Appellant who extended the invitation to the 1st Appellant to accompany him to the premises. The 2nd Appellant did not act alone — he actively recruited the 1st Appellant to participate in this enterprise. The 1st Appellant, upon receiving such invitation, was not under any compulsion or duress to comply. The 1st Appellant was a free agent who had full capacity and opportunity to decline the invitation. Notwithstanding this, the 1st Appellant voluntarily chose to accompany 2nd Appellant and entered the Unit together with him. This conscious and deliberate act of participation is of the utmost significance.

38. In the case of Wan Yurillhami Wan Yaacob & Anor v. PP [2010] 1 CLJ 17 this court opined as follows: [29] It is a well established principle of law in dealing with the criminal liability under s. 34 of the Penal Code 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 common intention is a question of fact and in each case it may be proved as a matter of inference from the circumstances of the case.

39. In the present case, such a meeting of minds is abundantly clear. Both accused persons jointly proceeded to the Unit and entered together using unauthorised means of access. **Note : Serial number will be used to verify the originality of this document via eFILING portal 15

40. It is acknowledged that the common intention between the Appellants need not be shown to have been specifically directed at drug trafficking from the very outset. However, what is undeniably established is that there existed a clear and unequivocal consensus between both Appellants to proceed to the Unit together. This consensus, when viewed against the totality of the circumstances — namely, the 2nd Appellant’s financial desperation, the unauthorised retention of the keys and access card, and the 1st Appellant’s willing participation — leads irresistibly to the inference that both Appellants were aware of, and had agreed to participate in, the criminal purpose of the visit as reflected in the charges proffered against them.

41. While the Appellants' defence tells a different story - that they were at the Unit for housebreaking, it does not change the fact that they went together to the Unit.

42. We refer to the case of Sathya Vello v. PP [2022] 5 CLJ 659, which this Court opined that: [101] This does not mean however that the trial judge cannot refer to facts already established at the close of the prosecution case for the purpose of satisfying himself whether the accused's explanation has succeeded in rebutting any of the statutory presumptions on the balance of probabilities (where any of the presumptions applies) or has succeeded in casting a reasonable doubt in his mind as to truth of the prosecution case (where no such presumption applies). What he cannot do is to change or alter his findings on those facts. **Note : Serial number will be used to verify the originality of this document via eFILING portal 16

43. Applying this principle to the present case, the learned trial judge was entitled — and indeed obliged — to consider the Appellants' explanation against the backdrop of facts already firmly established at the close of the prosecution's case. Those facts, which remained unshaken and undisturbed, clearly showed that the Appellants had travelled together to the unit in question.

44. The Appellants alleged that they were on a housebreaking venture, and that their presence at the unit was entirely unrelated to the drugs found therein. However, it is difficult to deny that they went to the unit together, and that the unit was found to contain a substantial quantity of drugs. Their bare assertion of an unrelated criminal purpose does not, without more, suffice to displace the irresistible inference arising from the totality of the evidence.

45. The learned trial judge was therefore correct in finding that their explanation failed to cast a reasonable doubt on the prosecution's case, and equally failed to rebut the statutory presumptions.

46. The conduct of the 1st Appellant in voluntarily joining the 2nd Appellant — with full knowledge that the 2nd Appellant was using keys and an access card that did not rightfully belong to him — raises a compelling inference that the 1st Appellant was not an innocent bystander but an active and willing participant in the unlawful enterprise. A reasonable person in the position of the 1st Appellant would have known, or ought to have known, that the purpose of entering the premises in such suspicious **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 circumstances was not innocent. The presence of both Appellants at the Unit where the drugs were found, coupled with their joint entry, fortifies the irresistible inference of their shared criminal purpose.

47. Furthermore, the presumption of trafficking under the relevant provisions of the DDA operates against both Appellants persons by virtue of their joint possession and presence at the premises where the drugs were recovered. Their common intention to be at the Unit, and to participate jointly in the acts carried out therein, renders both equally liable under s 34 of the Penal Code for the offence of drug trafficking as charged.

48. Accordingly, we find that s 34 of the Penal Code is satisfied on the facts of the present case, and that both Appellants are equally culpable for the offence of drug trafficking as charged. The element of common intention has been established beyond reasonable doubt by the totality of the evidence adduced. S 114(g) of the Evidence Act 1950 49. It is our considered view that there was no necessity to call, nor any obligation to offer, the wife or son of SP1 as witnesses in the proceedings. This is notwithstanding the fact that the Unit in question — being the scene of the offence — had been transferred into their names. They are not witnesses of material relevance to the facts in issue before this Court.

50. The facts and evidence adduced are clear and unequivocal in establishing that it was SP1 himself who had at all material times **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 dealt directly with the 2nd Appellant in all matters pertaining to the tenancy of the said premises. The transfer of ownership of the property to the wife or son of SP1 does not in any manner diminish or displace the direct and personal dealings between SP1 and the 2nd Appellant in relation to the tenancy arrangement.

51. This Court in the case of Ghasem Hozouri Hassan v. PP [2018] 6 CLJ 133 where the law on the point was succinctly described by Raus Sharif CJ as follows:- [48] The law pertaining to s. 114(g) of the Evidence Act is settled. Under s. 114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. The usage of the word 'may' gives the discretion to the court whether or not to invoke the adverse inference to a given set of facts. It is not a mandatory inference. To draw an adverse inference against the prosecution, the court must be satisfied that the witness that was not offered was a material witness, the prosecution purposely withholds evidence which it possessed and which was always available; and that what the prosecution did was done with an ulterior motive to frustrate the defence. (Nanda Kumar Kunyikanan & Anor v. PP [2011] 8 CLJ 406). [49] The aforesaid authority above set out is the correct position of the law, that is, court will not invoke an adverse inference against prosecution if it believes that the facts and/or the prosecution's reasons for not calling the supposed material witnesses show **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 no cause for it. Moreover, the prosecution only needs to produce witnesses who are necessary in the unfolding of its complete narrative, that is, to prove the essential elements of the crime and in this case, custody, control, and knowledge.

52. Prosecution witnesses are indispensable only to the extent necessary to discharge the burden of proving the case beyond a reasonable doubt. The calling of witnesses beyond that minimum threshold remains a matter falling squarely within the ambit of prosecutorial discretion. What is ultimately of determinative significance is the sufficiency and adequacy of the evidence as a whole. Provided that the prosecution's case is devoid of any material lacunae or unsatisfactory features, there is no compelling basis upon which an adverse inference ought to be drawn. Upon a careful consideration of the facts and circumstances of the present case, we are of the considered view that the invocation of an adverse inference under s 114(g) of the Evidence Act 1950 against the prosecution is neither justified nor tenable.

53. In the present case, the evidence of SP1 is direct, cogent, and uncontroverted on the issue of the tenancy arrangement. It was SP1 who personally negotiated, concluded, and managed the said tenancy with the 2nd Appellant at all material times. There was nothing before the High Court to show that neither the wife nor the son of SP1 was personally involved in the tenancy transaction or negotiation. **Note : Serial number will be used to verify the originality of this document via eFILING portal 20

54. It follows that the failure to call the wife or son of SP1 as witnesses does not attract the operation of s 114(g) of the Evidence Act 1950. The prerequisite condition for the invocation of that provision — namely that the uncalled witness must be a material witness capable of giving relevant and significant evidence on the facts in issue — is simply not satisfied in the instant case. Their evidence would have been, at best, peripheral and collateral, adding nothing of probative value beyond what has already been firmly and sufficiently established through the direct and credible testimony of SP1 himself. Flagrant incompetency of the Appellants’ counsel 55. It is said that flagrant incompetency of a counsel can only be raised under extreme situation.

56. In relation to this issue, we find guidance in the case of Shamim Reza Abdul Samad v. PP [2009] 6 CLJ 93 (FC), whereby it was held that: [6] ... In our considered judgment, the incompetence of counsel in the conduct of a defence in a criminal trial is a ground on which a conviction may be quashed provided that (i) such incompetence must be flagrant in the circumstances of a given case; and (ii) it must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice. Nothing short will suffice. And in considering the question, an appellate court must have regard to the conduct of counsel as a whole and not merely to his or her **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 failure in one or two departments. Further, in the ordinary way, a court whether at first instance or at the appellate stage will of course have regard to its paramount function and duty to ensure that justice is done so that the incompetence of counsel will not factor into the equation.

57. Further, in the case of Yahya Hussein Mohsen Abdulrab v. PP [2021] 9 CLJ 414 (FC), Tengku Maimum CJ speaking for this Court explained that: [44] … Thus, the focus of the inquiry by the court is not on the advocacy skills or performance of trial counsel, rather it is the acts or omissions themselves as they impact on the fairness of the trial and whether the result constitute a miscarriage of justice.

58. We find that the mere failure of previous counsel to cross-examine the prosecution's witnesses or to put the defence case during the prosecution's stage does not, without more, constitute flagrant incompetency so as to occasion a miscarriage of justice. The threshold for establishing counsel incompetency as a ground of appeal is an extremely high one, and it is trite that not every omission or tactical decision made by counsel during the conduct of a trial will satisfy that threshold.

59. Different counsel adopts different styles and approaches in the conduct of criminal trials. Some counsel prefers to reserve their challenge to the prosecution's evidence for the defence stage, particularly where the defence case has not yet fully crystallised, **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 or where cross-examination at that stage may risk fortifying the prosecution's witnesses rather than undermining them. Such an approach, however unconventional it may appear, does not in itself constitute incompetency, let alone flagrant incompetency. Conclusion 60. For the reasons aforesaid, our conclusion is as follows:

61. The appeal is therefore dismissed and the concurrent decisions of the courts below are hereby affirmed. **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Dated 5 May 2026 -sgd-WAN AHMAD FARID BIN WAN SALLEH Chief Justice of Malaysia Counsel for the Appellants Afifuddin Ahmad Hafifi Ms. Aina Melina Johan Ariff Lim (T/n. Salehuddin Saidin & Associates) Counsel for the Prosecution Mohd Fuad Bin Abdul Aziz (Jabatan Peguam Negara) **Note : Serial number will be used to verify the originality of this document via eFILING portal