Sadam Husain Bin Ustaz Ahmad Nabi (JA-45A-153-12/2022)

SADAM HUSAIN BIN USTAZ AHMAD NABI (NRIC No: 951211-91-7131)

MOHD AMIRUL ASRAF BIN ABU BAKAR (NRIC No: 890712-01-5487)

WALIZA BIN SADAT GUL (NRIC No: 940916-01-5377) GROUNDS OF JUDGMENT INTRODUCTION [1] These are the grounds of judgment in respect of two criminal cases tried together before this court. The first accused, Sadam Husain bin Ustaz Ahmad Nabi (IC No. 951211-01-7181), faces two charges in Case JA-45A-152- 12/2022: a charge of trafficking in 697.78 grams of Methamphetamine under s 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”), and a charge of possessing 0.71 grams of a substance containing Theophylline and Etizolam under section 30(3) of the Poisons Act 1952. [2] The second accused, Mohd Amirul Asraf bin Abu Bakar (IC No. 890712-01-5487), and the third accused, Waliza bin Sadat Gul (IC No. 940916-01-5377), each face three charges jointly with the first accused in Case JA-45A-153- 12/2022: a charge of trafficking in 170.96 grams of Methamphetamine under section 39B(1)(a) read with section 34 of the Penal Code, a charge of possessing 1.12 grams of a substance containing Theophylline and Etizolam under section 30(3) of the Poisons Act 1952 read with section 34 of the Penal Code, and a charge of possessing 0.25 grams of Ketamine under section 12(2) of the DDA read with section 34 of the Penal Code. Upon conviction for a section 39B(1)(a) DDA offence, the sentence is death, or life imprisonment and whipping of not less than 12 strokes. [3] The prosecution called five witnesses and tendered documentary and physical exhibits in support of its case. [4] Having subjected the prosecution evidence to maximum evaluation as required by law, and for the reasons more fully explained in paragraphs 69 to 76 of these grounds, this court finds that a prima facie case has been established against the first accused on Charges 1 and 2. He is accordingly called upon to enter his defence on those charges. No prima facie case has been established against any of the three accused on Charge 3, nor against the first accused on Charges 4 and 5. All three accused are therefore acquitted and discharged on Charge 3, and the first accused is additionally acquitted and discharged on Charges 4 and 5, without their defence being called. A prima facie case has, however, been established against the second accused and the third accused on Charges 4 and 5. They are accordingly called upon to enter their defence on those charges. [5] These are the grounds for those findings. THE CHARGES [6] The charges as read to the accused persons are as follows. [7] Charge 1 (JA-45A-152-12/2022, First Charge - against the first accused): “Bahawa kamu pada 14.8.2022 jam lebih kurang 9.35 malam di No. 15, Lot 1287, Jalan Belinjau, Off Jln Kg Panti, Kg Panti, 81900 di dalam daerah Kota Tinggi, di dalam Negeri Johor Darul Ta'zim telah mengedar dadah berbahaya jenis Methamphetamine seberat 697.78 gram dengan itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” [8] Charge 2 (JA-45A-152-12/2022, Second Charge - against the first accused): “Bahawa kamu pada 14.8.2022 jam lebih kurang 9.35 malam di No. 15, Lot 1287, Jalan Belinjau, Off Jln Kg Panti, Kg Panti, 81900 di dalam daerah Kota Tinggi, di dalam Negeri Johor Darul Ta'zim telah memiliki 0.71 gram bahan yang mengandungi racun jenis Theophylline dan Etizolam dengan itu kamu telah melakukan kesalahan di bawah seksyen 30(3) Akta Racun 1952 yang boleh dihukum di bawah seksyen 30(5) Akta yang sama.” [9] Charge 3 (JA-45A-153-12/2022, First Charge — against all three accused): “Bahawa kamu bersama-sama 14.8.2022 jam lebih kurang 9.35 malam di No. 15, Lot 1287, Jalan Belinjau, Off Jln Kg Panti, Kg Panti, 81900 di dalam daerah Kota Tinggi, di dalam Negeri Johor Darul Ta'zim telah mengedar dadah berbahaya jenis Methamphetamine seberat 170.96 gram dengan itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibacakan bersama seksyen 34 Kanun Keseksaan.” [10] Charge 4 (JA-45A-153-12/2022, Second Charge — against all three accused): “Bahawa kamu bersama-sama pada 14.8.2022 jam lebih kurang 9.35 malam di No. 15, Lot 1287, Jalan Belinjau, Off Jln Kg Panti, Kg Panti, 81900 di dalam daerah Kota Tinggi, di dalam Negeri Johor Darul Ta'zim telah memiliki 1.12 gram bahan yang mengandungi racun jenis Theophylline dan Etizolam dengan itu kamu telah melakukan kesalahan di bawah seksyen 30(3) Akta Racun 1952 yang boleh dihukum di bawah seksyen 30(5) Akta yang sama.” [11] Charge 5 (JA-45A-153-12/2022, Third Charge — against all three accused): “Bahawa kamu bersama-sama pada 14.8.2022 jam lebih kurang 9.35 malam di No. 15, Lot 1287, Jalan Belinjau, Off Jln Kg Panti, Kg Panti, 81900 di dalam daerah Kota Tinggi, di dalam Negeri Johor Darul Ta'zim telah memiliki dadah berbahaya jenis Ketamine seberat 0.25 gram dengan itu kamu telah melakukan kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 12(3) Akta yang sama dan dibacakan bersama seksyen 34 Kanun Keseksaan.” [12] For ease of reference throughout these grounds, the charges as numbered above adopt the numbering convention used in the prosecution's written submissions. Accordingly, references to Charge 1 through Charge 5 are to be understood in that manner. THE PROSECUTION'S CASE [13] The prosecution called five witnesses: a) SP1 was D/L/Kpl Clinton Anak Jinggan, the store keeper (Jurustor) responsible for the custody and management of the exhibits. b) SP2 was Puan Liew Chyi, a Science Officer from Jabatan Kimia Malaysia who analysed the seized substances and prepared the relevant chemistry reports. c) SP3 was Inspector Sharizan bin Jaafar, the raiding officer who led and participated in the operation giving rise to the charges. d) SP4 was Teo Soon Nam, the landlord and owner of the premises where the relevant events took place. e) SP5 was Inspector Nik Muhammad Faiz bin Nik Mhd Azhar, the investigating officer who conducted the investigation of the case. [14] On 14 August 2022 at approximately 9.35 pm, SP3, Inspector Sharizan bin Jaafar, led a narcotics raid team comprising members of the Criminal Investigation Division (Narcotics), IPD Kota Tinggi, Johor, to No. 15, Lot 1287, Jalan Belinjau, Off Jalan Kampung Panti, Kampung Panti, 81900 Kota Tinggi, Johor. The team, which included D/SM Azrul, Sjn Azhafizal, D/Sjn Hairuddin, D/Kpl Farid, D/L/Kpl Sukri, L/Kpl Musliadi, L/Kpl Najmi, L/Kpl Najib, and Konst Ekhsan, was acting on drug intelligence received in respect of the address. Prior to approaching the premises, SP3 conducted surveillance from a distance of approximately 50 metres for a period of between 10 and 15 minutes. During this period, no persons were observed entering or leaving the premises. The front wooden door was found to be closed but unlocked when the team approached. [15] SP3 knocked on the front door and announced his presence as a senior police officer. When no response was received, SP3 and the raiding team entered the premises. [16] Upon entry, SP3 encountered three male suspects at different locations within the house. The first suspect, later identified as the first accused, was seen attempting to flee towards the kitchen area while holding an object in his left hand. The second suspect, later identified as the second accused, was found hiding behind the front door. The third suspect, later identified as the third accused, was found lying on a mattress in the living room. SP3 again identified himself as a senior police officer by producing his authority card. He then identified and addressed all three suspects. [17] The three suspects are identified in these proceedings as follows. The first accused is Sadam Husain bin Ustaz Ahmad Nabi. The second accused is Mohd Amirul Asraf bin Abu Bakar. The third accused is Waliza bin Sadat Gul. [18] The differing conduct of the three accused at the moment of entry is a material fact in this case. The first accused was in motion and was holding an object. The second accused had positioned himself behind the door in circumstances consistent with deliberate concealment. The third accused was lying on a mattress in the living room. These positions and actions constitute relevant facts under section 8 of the Evidence Act 1950 as conduct that may disclose awareness of the circumstances giving rise to the arrest. [19] SP3 conducted a body search on the first accused in the presence of L/Kpl Najib. The search yielded two items. [20] The first item was a gold-coloured plastic packet bearing the words “Guanyinwang”, marked SA and admitted as Exhibit P25. It was found in the first accused's left hand. Inside the packet was a transparent plastic packet marked SA1 and admitted as Exhibit P10A containing a crystalline substance. The substance was subsequently analysed by and found to contain 697.78 grams of Methamphetamine, as confirmed in the Chemistry Report admitted as Exhibit P12. [21] The second item was a strip of red and silver foil blister pack marked SE1 and admitted as Exhibit P10C. It was found in the right front pocket of the blue “Exhaust” brand shorts, admitted as Exhibit P22, worn by the first accused. The strip contained four tablets which were subsequently analysed by SP2 and found to comprise 0.71 grams of a substance containing Theophylline and Etizolam, as confirmed in the Chemistry Report admitted as Exhibit P10D. [22] Photographs depicting the attire worn by the first accused at the material time were tendered and admitted as Exhibits P14A and P14B. [23] SP3 then conducted an inspection of the living room floor in the presence of all three accused persons. The inspection yielded two items suspected to be dangerous drugs. [24] The first item was a strip of red and silver foil blister pack marked SB and admitted as Exhibit P10E. It contained six tablets which were subsequently analysed and found to comprise 1.12 grams of a substance containing Theophylline and Etizolam, as confirmed in the Chemistry Report admitted as Exhibit P12. The remaining analysed substance was admitted as Exhibit P10F. [25] The second item was a transparent plastic packet marked SC and admitted as Exhibit P10G. It contained a white powdery substance which was subsequently analysed and found to comprise 0.25 grams of Ketamine, as confirmed in the Chemistry Report admitted as Exhibit P12. The remaining analysed substance was admitted as Exhibit P10H. [26] Also recovered from the living room floor were four mobile phones and two personal bags. The first was a black crossbody bag bearing the “Coach” brand, marked SF and admitted as Exhibit P23. The second was a green waist bag bearing the “Feraud” brand, marked SG and admitted as Exhibit P24. [27] An examination of Exhibit P23, the Coach crossbody bag belonging to the third accused, revealed several personal items. These included the third accused's National Registration Identity Card, admitted as Exhibit P23A, and his driving licence, admitted as Exhibit P23B. The bag also contained a set of house keys, admitted as Exhibit P26, a Seiko Presage wristwatch, a Public Bank card, and cash amounting to RM1,500.00. [28] An examination of Exhibit P24, the Feraud waist bag belonging to the second accused, likewise revealed several personal items. These included the second accused's National Registration Identity Card, admitted as Exhibit P24A, and his driving licence, admitted as Exhibit P24B. The bag also contained a CIMB bank card and cash amounting to RM130.00. [29] SP3 then proceeded to the kitchen area accompanied by D/L/Kpl Sukri and Konst Ekhsan. All three accused persons were present during the search. At the left-side wall of the kitchen, SP3 discovered a black plastic bag marked SD and admitted as Exhibit P27. [30] Upon opening the bag, SP3 found two categories of items. The first comprised three transparent plastic packets marked SD1 to SD3 and admitted as Exhibits P10I(1) to P10I(3). These packets contained a crystalline substance which was subsequently analysed by SP2 and found to comprise 170.96 grams of Methamphetamine, as confirmed in the Chemistry Report admitted as Exhibit P12. The remaining analysed substance was admitted as Exhibit P10J. [31] The second item was a grey digital weighing scale marked SD4 and admitted as Exhibit P28. [32] A search conducted outside the premises further revealed two vehicles. The first was a red Perodua Myvi motor car bearing registration number JUY 1622. The second was a grey and black Yamaha NVX motorcycle bearing registration number VHR 7791. [33] SP3 seized all exhibits, arrested all three accused persons, and explained the reasons for the arrest and their rights under section 28A of the Criminal Procedure Code (“CPC”) in language understood by each of them. A search record (Exhibit P18) was prepared and a copy served on each accused. SP3 then made a police report in respect of the arrests (Report No. KOTA TINGGI/5504/22, Exhibit P17) and subsequently handed over the three accused persons together with the seized exhibits to the Investigating Officer, SP5, for further investigation as recorded in Exhibit P20. Vehicles and other valuables were handed over to the Asset Forfeiture Division as recorded in Exhibit P21. [34] SP4, Teo Soon Nam, testified that he is the owner of the premises situated at No. 15, Lot 1287, Jalan Belinjau. The premises comprise a double-bedroom terrace house measuring approximately 20 feet by 40 feet. [35] According to SP4, he rented the premises to a person known to him as “Waliza”, namely the third accused, at a monthly rental of RM450.00. The tenancy had subsisted for approximately four months before the date of the raid. SP4 testified that he handed one front door key to the third accused upon commencement of the tenancy. [36] SP4 further confirmed that the back door of the premises did not have a key and could only be secured from the inside. To his knowledge, the third accused was the occupant of the premises. SP4 also stated that he delivered possession of the house in a clean condition and without any furniture. [37] Finally, SP4 testified that he had no knowledge of the presence of any dangerous drugs in the premises. [38] Crucially, under cross-examination, SP4 conceded that rent payments had on occasion been collected by his employee from persons other than the third accused himself. While it was suggested to him during cross-examination that these individuals were known as “Boy” and “Asa”, SP4 clarified during re-examination that his employee did not specify their names to him, and he only heard those names for the first time in court. SP4 confirmed that he employed an employee who was specifically tasked with collecting rent from the various tenants and occupants in the area. This employee had direct and contemporaneous knowledge of who was occupying the premises during the tenancy period. Despite the obvious materiality of this employee's evidence to the question of who had access to the premises, the prosecution did not call him as a witness. The significance of this omission will be addressed in the analysis section of these grounds. [39] SP2, Puan Liew Chyi, a Science Officer attached to the Jabatan Kimia Malaysia, gave evidence regarding the chemical analysis of the substances seized during the raid. [40] She confirmed that the crystalline substance contained in Exhibit P10A was Methamphetamine with a net weight of 697.78 grams, as stated in the Chemistry Report admitted as Exhibit P12. She further confirmed that the tablets contained in Exhibit P10C comprised a substance containing Theophylline and Etizolam with a net weight of 0.71 grams, as reflected in Exhibit P12. She also confirmed that the tablets contained in Exhibit P10E comprised a substance containing Theophylline and Etizolam with a net weight of 1.12 grams, as reflected in Exhibit P12. [41] SP2 further testified that the powder contained in Exhibit P10G was Ketamine with a net weight of 0.25 grams, as stated in Exhibit P12. She also confirmed that the crystalline substances contained in Exhibits P10I(1) to P10I(3) were Methamphetamine with a combined net weight of 170.96 grams, as reflected in Exhibit P12. [42] SP2 confirmed that Methamphetamine and Ketamine are dangerous drugs within the meaning of section 2 of the DDA and are listed in the First Schedule to that Act. She further confirmed that Theophylline and Etizolam are substances scheduled under the Poisons Act 1952. [43] During cross-examination, SP2 was challenged on the basis that the calibration records for the laboratory equipment used in her analysis were not tendered in evidence and that her analysis records had not been produced before the court. While counsel for the first accused later drew a comparison during oral submissions with another criminal case currently before this court in which the prosecution, following a similar challenge, had tendered the chemist's analysis records, nevertheless maintained the accuracy and integrity of her findings throughout her testimony. [44] SP1, D/L/Kpl Clinton Anak Jinggan, testified in his capacity as the store keeper responsible for the custody of the seized exhibits. His evidence concerned the handling and safekeeping of the exhibits from the time they were submitted to the police store until their eventual production before this court. [45] SP1 explained that his duties included receiving, recording, storing and maintaining the exhibits. He was also responsible for producing the exhibits at each scheduled hearing of the case. His testimony therefore related principally to the continuity and integrity of the chain of exhibits. [46] During the trial, questions arose concerning Exhibit P25, namely the outer gold-coloured “Guanyinwang” plastic wrapper. SP5 confirmed that P25 had not been produced in court during one earlier hearing session. [47] SP5, Insp Nik Muhammad Faiz bin Nik Mhd Azhar, was the Investigating Officer in this case. He took over conduct of the investigation from SP3 following the arrests and received the three accused persons together with all seized exhibits. SP5 confirmed the identity of the exhibits in court and gave evidence on the investigation he had conducted. [48] Under cross-examination by counsel for the first accused, SP5 was questioned about the non-production of Exhibit P25, the outer gold “Guanyinwang” plastic wrapper, at a hearing session on 23 September 2025. SP5 confirmed that P25 was not brought to court on that date. He explained that it had been kept in his locked cabinet at the Narcotics Office, IPD Kota Tinggi, rather than in the exhibits store because P25 was not a drug exhibit but merely an outer wrapper. In re-examination, SP5 confirmed that P25 bore his markings and the date of the incident. He identified it as the same wrapper seized at the scene. [49] SP5 was also questioned about the scope of his investigation, including whether he had independently verified through other raiding team members the fact that the first accused was holding Exhibit P25. SP5 acknowledged that his investigation in this respect relied principally on SP3's account. [50] Under cross-examination by counsel for the third accused, SP5 made an admission of central significance to these proceedings. He agreed that the premises had two bedrooms, that both bedrooms contained beds, wardrobes and items of clothing, and, in his own words, that “kedua- dua bilik tempat kejadian ini telah dihuni”, namely that both rooms at the crime scene had been occupied. SUBMISSIONS OF THE PARTIES [51] Written submissions were filed and oral clarification submissions were made by all parties at the close of the prosecution's case. This court considers the material submissions of each party in turn. [52] The prosecution, represented by DPP Juanita binti Mohd Said, submitted that a prima facie case had been established against all three accused persons on all five charges. [53] In respect of Charge 1, the prosecution relied on the direct evidence of SP3 that Exhibit P25, namely the gold-coloured plastic wrapper containing Exhibit P10A, was found in the left hand of the first accused as he attempted to flee towards the kitchen area. Exhibit P10A was subsequently confirmed to contain 697.78 grams of Methamphetamine. The prosecution submitted that this constituted evidence of actual possession. It further argued that the presumption of trafficking under section 37(da)(xvi) of the DDA arose because the net weight of the Methamphetamine substantially exceeded the statutory threshold of 50 grams. According to the prosecution, none of the matters raised by the defence during cross-examination was sufficient to undermine SP3's evidence on this central issue. [54] In relation to Charge 2, the prosecution's case was that Exhibit P10C was found in the right front pocket of the shorts worn by the first accused. It was submitted that this established actual possession of the scheduled poison and that no further inferential step was required. [55] As regards Charge 3, the prosecution relied on the fact that the third accused was the named tenant and occupier of the premises for approximately four months before the raid. It was submitted that this gave rise to constructive possession of all items found within the premises, including Exhibit P27 and its contents. The prosecution further argued that the presence of the digital weighing scale, Exhibit P28, together with Exhibit P27, and the substantial quantity of Methamphetamine contained in Exhibit P25, collectively supported an inference that the premises were being used for drug-packaging activities involving all three accused persons. [56] In relation to Charges 4 and 5, the prosecution relied principally on the proximity between the personal bags belonging to the second and third accused and the drug exhibits found on the living room floor. Exhibit P23, the Coach bag belonging to the third accused, and Exhibit P24, the Feraud waist bag belonging to the second accused, were found in the same area as Exhibits P10E and P10G. The prosecution submitted that common intention within the meaning of section 34 of the Penal Code could be inferred from the location of the bags in relation to the drug exhibits, coupled with the presence of all three accused persons within the premises at the material time. [57] Counsel for the first accused, Haji Rosli Kamarudin, filed written submissions and supplemented them with oral clarification submissions. The principal challenge was directed at the factual foundation of Charge 1. Counsel disputed SP3's evidence that the first accused was holding Exhibit P25 when the police entered the premises. It was submitted that this allegation rested solely on the uncorroborated testimony of a single police witness. [58] Counsel further argued that the failure of the prosecution to call L/Kpl Najib and D/L/Kpl Sukri, both of whom were present during the raid and the subsequent body search, justified the drawing of an adverse inference under section 114(g) of the Evidence Act 1950. Reliance was placed on authorities which establish that where the testimony of a prosecution witness is challenged and concerns a central issue in the case, available corroborating witnesses ought to be called. [59] As a subsidiary argument, counsel questioned the integrity of Exhibit P25 on the basis that it had not been produced during an earlier hearing. Counsel also challenged the evidence of SP2, the Science Officer, on the ground that calibration records for the laboratory equipment had not been tendered. It was further pointed out that in other proceedings, the prosecution had produced such records when the chemist's findings were challenged. [60] In relation to Charges 3, 4 and 5, counsel submitted that there was no evidential nexus connecting the first accused to any of the exhibits forming the subject matter of those charges. According to counsel, the absence of any clothing, vehicles, or other personal items belonging to the first accused at the premises demonstrated that he was merely a visitor. It was argued that the first accused's movement towards the kitchen at the time of the raid did not establish possession, custody or control of Exhibit P27 or any of the items associated with that exhibit. [61] Counsel for the second accused, Muhammad Abd Kadir, submitted that the discovery of Exhibit P24 on the living room floor in proximity to Exhibits P10E and P10G was insufficient, without more, to establish possession of those exhibits. Counsel argued that proximity alone does not amount to possession. [62] In relation to Charge 3, counsel drew a clear distinction between the location of the second accused and the location of Exhibit P27. It was submitted that the second accused was found in the living room, whereas Exhibit P27 was discovered in the kitchen area. Counsel emphasised that there was no physical connection whatsoever between the second accused and Exhibit P27. No prosecution witness testified that the second accused had handled, touched, or exercised any form of custody or control over that exhibit. [63] Counsel further highlighted a material discrepancy regarding the time of the alleged offences. It was pointed out that while the charges stated the offences occurred at 9.35 pm, the search list (Exhibit P18) recorded the time of inspection and discovery of the exhibits as 9.55 pm. Counsel argued that this unexplained 20-minute gap meant the prosecution failed to prove possession at the material time stated in the charges. [64] On the issue of common intention, counsel argued that mere presence at the premises is insufficient to establish liability under section 34 of the Penal Code. It was submitted that the prosecution must prove a meeting of minds directed towards the specific criminal act charged. According to counsel, no such evidence had been adduced against the second accused at the close of the prosecution's case. [65] Counsel for the third accused, Lydiana Mansor, submitted that the third accused's status as the named tenant of the premises was not, by itself, determinative of constructive possession over every item found within the house. In relation to Charge 3, counsel placed considerable reliance on the concession made by SP5 during cross-examination that both bedrooms in the premises had been occupied. It was submitted that this admission was fatal to any suggestion of exclusive occupation or exclusive control by the third accused over the premises and its contents. [66] Counsel further relied on the evidence of SP4 concerning individuals known as “Boy” and “Asa” as corroborative evidence of multiple occupancy. It was submitted that the prosecution's failure to investigate the identities and involvement of these other occupants constituted a material omission in the investigation. Counsel also pointed to the prosecution's failure to call the employee who had collected rent on behalf of SP4. According to counsel, these omissions justified the drawing of an adverse inference under section 114(g) of the Evidence Act 1950. [67] In relation to Charges 4 and 5, counsel did not dispute that Exhibit P23 belonged to the third accused or that it was found in close proximity to Exhibits P10E and P10G on the living room floor. However, counsel submitted that the third accused's conduct at the time of the raid was inconsistent with guilty knowledge. Reliance was placed on the fact that he was found lying on a mattress in the living room and exhibited no signs of panic, flight, concealment, or distress when the police entered the premises. [68] Counsel argued that mere proximity to the drug exhibits was insufficient, without more, to establish possession. It was submitted that the third accused's calm demeanour actively negated any inference of “consciousness of guilt”, and demonstrated that the prosecution had failed to establish the requisite knowledge and possession at the close of its case. COURT'S DUTY AT CLOSE OF PROSECUTION'S CASE [69] At the close of the prosecution's case, it is the duty of this court, pursuant to section 180(1) of the CPC, to consider whether the prosecution has made out a prima facie case against the accused. Section 180 of the CPC provides as follows: “180. Procedure after conclusion of case for prosecution.

When the case for the prosecution is concluded the Court shall consider whether the prosecution has made out a prima facie case against the accused.

If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.

If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.

For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.” [70] The test for maximum evaluation was established by the Court of Appeal in Looi Kow Chai & Anor v PP [2003] 1 CLJ 734, where the court held: “Under s. 180 of the Criminal Procedure Code (Revised 1999), the duty of a judge, sitting alone, at the close of the case for the prosecution, is to determine, as a trier of fact, whether the prosecution has made out a prima facie case against the accused. The judge has only one exercise to undertake; he must subject the evidence of the prosecution to a maximum evaluation and then ask himself this question: If I decide to call upon the accused to enter on his defence, and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution’s case? If the answer is in the negative, then no prima facie case has been made out, and the accused is entitled to an acquittal.” [71] The Federal Court in Balachandran v PP [2005] 1 CLJ 85 further held that: “A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal... The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen. On the other hand if a prima facie case has not been made out it means that there is no material evidence which can be believed in the sense as described earlier. In order to make a finding either way the court must, at the close of the case for the prosecution undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established.” [72] The Federal Court in PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457 further clarified that the exercise of maximum evaluation involves “an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence.” The Federal Court further held that “if the prosecution evidence admits of two or more inferences, one of which is in the accused's favour, then it is the duty of the court to draw the inference that is favourable to the accused.” [73] It is with these principles firmly in mind that this court has evaluated the totality of the prosecution's evidence in respect of each accused person and each charge. [74] Maximum evaluation is not an abstract exercise. It requires this court to make a positive assessment of the credibility of each prosecution witness. It also requires the court to consider the totality of the evidence adduced, including evidence that emerged during the cross-examination of prosecution witnesses and any gaps disclosed by the prosecution's own case. Where the evidence admits of two or more inferences, the court must draw the inference most favourable to the accused. [75] This standard applies with equal force to the charges on which this court finds that a prima facie case has been established and to those on which it does not. The court is not at liberty to give the prosecution the benefit of gaps in its own case. Nor may the court leave material questions raised by the prosecution's own witnesses unresolved by presuming them in the prosecution's favour. [76] Where the evidence creates its own doubt through what prosecution witnesses say, rather than through what defence counsel merely suggests, that doubt must be resolved in favour of the accused at this stage. INGREDIENTS OF THE OFFENCES [77] This section identifies the legal elements that the prosecution was required to establish for each of the five charges in this consolidated case. This court's analysis of the evidence proceeds ingredient by ingredient in respect of each accused and each charge in the sections that follow. [78] In relation to the charges under section 39B(1)(a) of the DDA, namely Charge 1 against the first accused and Charge 3 against all three accused, the prosecution is required to prove three essential ingredients: a) First, the prosecution must establish that the substance in question is a dangerous drug within the meaning of the DDA and is listed in the relevant Schedule to that Act. b) Secondly, the prosecution must establish that the accused was in possession of the dangerous drug. c) Thirdly, the prosecution must establish that the accused was trafficking in the dangerous drug. [79] Trafficking may be proved in one of two ways. It may be established by direct evidence of conduct falling within the definition of “trafficking” in section 2 of the DDA. That definition includes acts such as transporting, carrying, delivering, storing and distributing, among others. Alternatively, trafficking may be established through the statutory presumption contained in section 37(da) of the DDA. That presumption arises where the accused is proved to be in possession of a quantity of the relevant dangerous drug that exceeds the minimum threshold prescribed by law. [80] In relation to Charge 1 against the first accused, the prosecution relied on direct evidence to establish actual possession of Exhibit P10A. Having done so, the prosecution invoked the trafficking presumption under section 37(da)(xvi) of the DDA on the basis that the net weight of the Methamphetamine, namely 697.78 grams, substantially exceeds the statutory threshold of 50 grams. [81] In relation to Charge 3 against all three accused persons, the prosecution was required to establish possession of Exhibit P27 before any statutory presumption could arise. This court was therefore required to determine whether the prosecution had established possession of Exhibit P27 against each accused individually on the evidence adduced. [82] A critical legal constraint governs this analysis. In Mohamed bin Hassan v PP [1998] 2 MLJ 273, the Federal Court confirmed the prohibition against what has come to be known as the “double presumption”. The prosecution is not permitted to rely on the presumption of possession under section 37(d) of the DDA in order to trigger the presumption of trafficking under section 37(da) of the same Act. [83] Accordingly, before the trafficking presumption under section 37(da) may be engaged, the prosecution must first establish actual possession through independent evidence. Possession cannot be inferred solely through the operation of another statutory presumption. [84] In relation to Charge 2 against the first accused, the prosecution was required to prove two essential ingredients: a) First, the prosecution must establish that the substance contained in Exhibit P10C is a scheduled poison within the meaning of the Poisons Act 1952. b) Secondly, the prosecution must establish that the first accused was in possession of that substance. [85] Unlike the charges under the DDA, the offence under the Poisons Act 1952 is a possession offence and does not contain a trafficking element. The prosecution is therefore not required to prove any act of trafficking or to rely on any statutory presumption of trafficking. [86] The concept of possession nevertheless follows the same legal framework applicable to possession offences under the DDA. The prosecution must prove both the physical element and the mental element of possession. The physical element consists of custody or control over the item in question. The mental element requires proof that the accused had knowledge of the existence of the item alleged to have been in his possession. [87] In relation to Charges 4 and 5, namely the joint charges under section 30(3) of the Poisons Act 1952 and section 12(2) of the DDA, each read together with section 34 of the Penal Code, the prosecution was required to prove three essential ingredients: a) First, the prosecution must establish the identity of the respective substances forming the subject matter of the charges. b) Secondly, the prosecution must establish possession of those substances. c) Thirdly, the prosecution must establish the existence of a common intention among the accused persons in furtherance of which the respective offences were committed. [88] The doctrine of common intention under section 34 of the Penal Code requires proof of a pre-arranged plan to commit the specific offence charged. Such a plan need not be express and may be inferred from the surrounding circumstances and the conduct of the accused persons. The prosecution must further establish that the criminal act in question was carried out in furtherance of that common intention. [89] Where these elements are established, each participant who shares the common intention becomes constructively liable for the acts of the others committed in furtherance of the common design. [90] In applying section 34 of the Penal Code to the present case, this court has carefully considered the evidence separately in relation to each charge and each accused person. The doctrine is applied only where the evidence provides a sufficient inferential basis for the existence of a common intention in relation to the particular offence under consideration. ANALYSIS AND FINDINGS — FIRST ACCUSED (SADAM HUSAIN BIN USTAZ AHMAD NABI) Charge 1 — Trafficking in 697.78 grams of Methamphetamine Identity of the Drug [91] The first ingredient, namely that the substance forming the subject matter of Charge 1 is a dangerous drug, is established. [92] SP2, Puan Liew Chyi, a government chemist, testified that the crystalline substance contained in Exhibit P10A was Methamphetamine with a net weight of 697.78 grams, as reflected in Chemistry Report Exhibit P12. SP2 confirmed that Methamphetamine is a dangerous drug within the meaning of section 2 of the DDA and is listed in the First Schedule to the DDA. [93] Applying Balachandran v PP, this court is entitled to accept the evidence of the chemist at face value without requiring her to elaborate on the step-by-step details of her laboratory analysis, unless such evidence is inherently incredible. [94] This court finds nothing inherently incredible in SP2's evidence. The challenge mounted against her evidence on the basis of the non-production of calibration records does not generate sufficient material doubt to displace the prima facie weight of her expert testimony. [95] The first ingredient is accordingly established. Chain of Exhibits [96] The prosecution has established the chain of custody of Exhibit P10A from the point of seizure to its production before this court. [97] SP3 testified that Exhibit P10A was recovered from within Exhibit P25, which was found in the left hand of the first accused at the time of the raid. Following the seizure, the exhibits were handed over to SP5, the Investigating Officer, who subsequently submitted the drug exhibits, including Exhibit P10A, to SP2 for chemical analysis, while retaining Exhibit P25 in his own locked cabinet. SP1 gave evidence regarding the storage, custody and handling of the drug exhibits during the intervening period after they were returned from the chemist. [98] The combined evidence of SP3, SP5, SP1 and SP2 establishes an unbroken evidential pathway from the time the exhibit was seized at the scene until its production before this court. Applying the principles stated in Gunalan a/l Ramachandran & 2 Ors v PP [2004] 4 CLJ 551 (HC), this court is satisfied that the substance analysed by SP2 is the same substance seized by SP3 and that the integrity of the exhibit has been preserved throughout. [99] The proper inquiry in a drug trafficking case is whether the integrity of the drug exhibit has been maintained from seizure to production in court. The prosecution is not required to call every individual who may have handled the exhibit at some stage of its movement. Where an exhibit is properly marked at the point of seizure, maintained under appropriate custody procedures, and ultimately produced by witnesses who are able to account for its receipt, storage and preservation, the chain of exhibits is sufficiently established. [100] Accordingly, this court is satisfied that the chain of custody in relation to Exhibit P10A is materially complete and unbroken. [101] The defence challenged Exhibit P25, namely the outer gold-coloured “Guanyinwang” wrapper, on three grounds. First, it was submitted that P25 was not forwarded to SP2 for chemical analysis for fingerprint or DNA testing. Secondly, it was argued that P25 was not produced during an earlier hearing date. Thirdly, counsel contended that there were physical discrepancies between Exhibit P25 and its photograph, Exhibit P19(1), giving rise to a suggestion that it may not have been the same wrapper seized at the scene. [102] This court has carefully considered those submissions. However, they do not disclose a material break in the chain of evidence sufficient to undermine the prosecution's prima facie case. [103] The critical exhibit for the purpose of Charge 1 is Exhibit P10A, being the transparent plastic packet containing 697.78 grams of Methamphetamine. The evidence establishes the integrity of P10A from the moment of its seizure by SP3, through its submission for analysis to SP2, and ultimately to its production before this court. The continuity of that exhibit has not been materially compromised. [104] As for Exhibit P25, its identification as the wrapper recovered at the scene is supported by the evidence of SP3, SP5, and by the exhibit markings placed upon it. Both witnesses firmly maintained that P25 was the actual wrapper seized despite the alleged visual discrepancies with the photograph. While P25 was not produced during one earlier hearing session, that circumstance amounts at most to a procedural irregularity. It does not constitute a break in the chain of custody relating to the drug exhibit itself. [105] SP5 addressed the circumstances surrounding the temporary non-production of P25 in his evidence, explaining that he had kept the wrapper safely in his personal locked cabinet, and this court is satisfied with the explanation given. In the circumstances, the challenge to the integrity of Exhibit P25 does not raise a material doubt affecting the prosecution's case. [106] Accordingly, this objection is rejected. Possession [107] The law relating to possession of dangerous drugs is well settled. To establish possession, the prosecution must prove two essential elements. The first is the physical element, namely custody or control of the drug. The second is the mental element, namely knowledge of the existence of the substance in question. [108] The classic statement of principle is found in Toh Ah Lam and Mak Thim v Rex [1949] 1 MLJ 54. In that case, the Singapore Court of Appeal held that possession requires a person to know the nature of the thing possessed. Furthermore, as established in cases such as Yee Ya Mang v PP [1971] CLJU 156 (HC) and Chan Pean Leon v PP [1956] 22 MLJ 237 (HC), possession requires a person to have the power of disposal over it, and to be conscious of his possession of it. [109] The Federal Court reaffirmed this approach in Ibrahim Mohamad v PP [2011] 4 CLJ 113 FC. The court confirmed that possession comprises two distinct but related components. The prosecution must establish both physical control over the prohibited substance and knowledge of its existence. Unless both elements are proved, possession is not made out in law. [110] In respect of the first accused and Charge 1, this court finds that actual possession of Exhibit P10A, namely the 697.78 grams of Methamphetamine, is established by direct evidence. [111] SP3 testified that upon entering the premises, the first accused was observed attempting to flee towards the kitchen while holding something in his left hand. That item was Exhibit P25, within which Exhibit P10A was contained. This was direct eyewitness evidence by the raiding officer of a fact contemporaneous with the arrest. [112] The defence submitted that SP3's testimony was uncorroborated and that other raiding officers, namely L/Kpl Najib and D/L/Kpl Sukri, ought to have been called. The implication of the submission was that their non-production gives rise to an adverse inference under section 114(g) of the Evidence Act 1950. [113] This court does not accept that submission. Section 134 of the Evidence Act 1950 does not require any particular number of witnesses to prove a fact. This court has long recognised that the prosecution is entitled to exercise its judgment as to which of its available witnesses to call: Ti Chuee Hiang v PP [1995] 2 MLJ 433 (SC). [114] An adverse inference under section 114(g) does not arise in every case where a prosecution witness is not called. It arises where the uncalled witness is shown to be a material witness to a disputed fact and where no explanation for the non-production is offered. [115] In the present case, the defence did challenge SP3's account that P25 was found in the first accused's hand. However, the fact remains that SP3's testimony on this point was not successfully dislodged in cross-examination. His evidence was consistent and coherent. [116] There is nothing inherently improbable in a person found fleeing upon the entry of the police while holding the very object that incriminates him. The defence hypothesis, namely that SP3's single-witness account should be disbelieved in the absence of corroboration from L/Kpl Najib and D/L/Kpl Sukri, does not rise to the level of raising a reasonable doubt at the prima facie stage. Furthermore, these witnesses were offered to the defence at the close of the prosecution's case, which legally precludes the drawing of an adverse inference under section 114(g). This court does not accept that hypothesis as doing so. [117] The physical element of actual custody is proved. Exhibit P25, with P10A within it, was found in the first accused's left hand. As to knowledge, the condition of Exhibit P25 is telling. The gold “Guanyinwang” plastic wrapper was found in an open and unsealed state, consistent with the first accused having handled the contents. Applying Parlan Dadeh v PP [2009] 1 CLJ 717 (FC), the open and unsealed state of the packaging in the accused's hand supports an inference of knowledge of the substance within. This court finds that both the physical and mental elements of actual possession are made out against the first accused in respect of Exhibit P10A. Trafficking [118] Having established actual possession, the question of trafficking arises. Section 37(da)(xvi) of the DDA provides that a person who is found in possession of not less than 50 grams of Methamphetamine shall be presumed, until the contrary is proved, to be trafficking in that drug. [119] The net weight of the Methamphetamine in Exhibit P10A is 697.78 grams. This is more than thirteen times the statutory threshold of 50 grams. The trafficking presumption under section 37(da) therefore arises automatically upon proof of actual possession of Exhibit P10A. [120] This court notes that the trafficking presumption under section 37(da) operates in this instance upon direct proof of actual possession. It does not operate upon constructive possession under section 37(d). The prohibition on the double presumption in Mohamed bin Hassan v PP is not engaged in respect of Charge 1 because this court is not stacking presumptions. Actual possession is proved directly. The trafficking presumption is then properly invoked upon that direct proof. [121] There is no evidence before this court at the prima facie stage that is sufficient to rebut the section 37(da)(xvi) presumption. Accordingly, the third ingredient, namely trafficking, is established. [122] Upon maximum evaluation, this court finds that the prosecution has established a prima facie case against the first accused on Charge 1. Were the first accused to elect to remain silent after being called to his defence on Charge 1, this court would be prepared to convict him on the totality of the prosecution's evidence. The first accused is called upon to enter his defence on Charge 1. Charge 2 — Possession of 0.71 grams of Theophylline and Etizolam (Poisons Act 1952) [123] Exhibit P10C, a strip of red and silver foil blister pack containing four tablets, was found by SP3 in the right front pocket of the blue “Exhaust” brand shorts marked as Exhibit P22 and worn by the first accused at the time of the raid. [124] SP2 confirmed in the Chemistry Report admitted as Exhibit P12 that the tablets contained 0.71 grams of a substance comprising Theophylline and Etizolam. further confirmed that both Theophylline and Etizolam are substances scheduled under the Poisons Act 1952. [125] The evidence establishing possession in relation to Charge 2 is direct and unequivocal. Exhibit P10C was recovered from a pocket of the shorts worn by the first accused during a body search conducted by SP3 in the presence of L/Kpl Najib. No meaningful challenge was mounted to this aspect of SP3's evidence. In particular, the defence did not materially dispute during cross-examination that Exhibit P10C was found in the right front pocket of Exhibit P22. [126] The physical element of possession is therefore established by direct evidence. The exhibit was found in the clothing worn by the first accused and was accordingly within his custody and control. [127] The mental element of possession is likewise established. A person wearing a pair of shorts is ordinarily taken to be aware of the contents of the pockets of that garment. There is no evidence before this court that would justify a contrary conclusion in the present case. [128] The prosecution has also established that the substance in question is a scheduled poison under the Poisons Act 1952 through the evidence of SP2 and the Chemistry Report admitted as Exhibit P12. [129] Upon maximum evaluation of the prosecution's evidence, this court finds that a prima facie case has been established against the first accused on Charge 2. The first accused is therefore called upon to enter his defence on that charge. Charges 3, 4 and 5 — First Accused [130] Charge 3 relates to 170.96 grams of Methamphetamine contained in Exhibits P10I(1) to P10I(3), which were recovered from Exhibit P27, a black plastic bag found at the left-side wall of the kitchen. Charges 4 and 5 relate respectively to Exhibits P10E and P10G, both of which were discovered on the living room floor during the raid. [131] This court will now consider separately the evidence connecting the first accused to the exhibits forming the subject matter of Charges 3, 4 and 5, and whether the prosecution has established a prima facie case against him in respect of those charges. [132] In relation to Charge 3, the prosecution must first establish actual possession of Exhibit P27 as against the first accused. [133] The evidence does not do so. Exhibit P27 was not found on the person of the first accused. No prosecution witness testified that the first accused had, at any material time, handled, carried, possessed, or exercised physical custody or control over Exhibit P27 or its contents. [134] The first accused was not the tenant of the premises. While SP3 observed him moving towards the kitchen area at the time of the raid, there is no evidence that he reached the location where Exhibit P27 was found. Nor is there any evidence that he touched the exhibit, interacted with it, or had any prior or contemporaneous connection with it. [135] It is also material that the kitchen was a separate area of the premises from the living room where Exhibits P10E and P10G, together with the personal bags of the second and third accused, were found. The mere fact that a person is seen moving in the direction of a particular area does not establish possession of every item located within that area. This is particularly so where no witness places the person in contact with the specific exhibit in question. [136] Upon a maximum evaluation of the evidence, this court finds that the prosecution has failed to adduce evidence capable of establishing actual possession of Exhibit P27 by the first accused. [137] This court has considered the prosecution's broader submission that the presence of Exhibits P25, P27 and P28 collectively points towards a shared drug-packaging enterprise being conducted at the premises. [138] The court accepts that the presence of Methamphetamine in two separate locations, namely Exhibit P10A and Exhibits P10I(1) to P10I(3), together with the digital weighing scale admitted as Exhibit P28, constitutes a set of circumstances capable, in principle, of supporting an inference that the premises were being used for drug-packaging or drug-distribution activities. [139] However, that is not the issue which this court is presently required to determine. The question is not whether some form of drug operation may have been taking place at the premises. The question is whether the prosecution has adduced evidence linking each individual accused to the specific exhibit forming the subject matter of the particular charge against him. [140] To conclude that every person present at premises where a drug operation may be underway is thereby in possession of every drug exhibit found within those premises would effectively dispense with the requirement that possession be proved against each accused individually. Such an approach would be inconsistent with established principles governing possession and criminal liability. [141] Having subjected the evidence to maximum evaluation, this court is not satisfied that the prosecution has established actual possession of Exhibit P27 by the first accused. The broader inference sought to be advanced by the prosecution cannot overcome the absence of direct or sufficiently compelling circumstantial evidence connecting the first accused to that exhibit. [142] The prohibition on the double presumption in Mohamed bin Hassan v PP is also directly applicable. The prosecution cannot first invoke the constructive possession presumption under section 37(d), by treating the first accused as being in possession of P27 merely because he was found in the house, and then invoke the trafficking presumption under section 37(da) on the basis of that presumed possession. To do so would be to use one presumption to activate another. This is not permissible. [143] In respect of common intention under section 34 of the Penal Code for Charge 3, applying Namasiyiam Doraisamy v PP [1987] 1 CLJ 540 (SC), common intention requires proof of a meeting of minds directed towards the specific offence charged. It is not sufficient to show shared presence at a place where criminal activity may be occurring, nor a general inclination toward unlawful conduct. [144] The High Court in PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 also emphasised that the prosecution must establish that there was a prearranged plan to commit a criminal act and the crime forming the subject matter of the charge was done in concert pursuant to that prearranged plan. Furthermore, the prosecution must show that there is a link between the accused persons with regard to the drugs that were recovered. [145] There is no evidence before this court that the first accused shared any prior arrangement, whether express or inferable from the circumstances, with any co-accused to traffic specifically in the 170.96 grams of Methamphetamine contained in Exhibit P27 in the kitchen. The first accused's connection to drug activity in this case is through Exhibit P25 in his hand. That is the subject matter of Charge 1. It is not through P27. [146] On the evidence, no prima facie inference of common intention for Charge 3 arises against the first accused. No prima facie case is made out against the first accused on Charge 3. [147] In respect of Charges 4 and 5 (Exhibits P10E and P10G found on the living room floor), this court's analysis must focus on whether there is any evidential basis to link the first accused to those specific exhibits. There is none. [148] The personal effects of the first accused, namely Exhibit P25 (in his hand) and Exhibit P10C (in his clothing pocket), were found on his person. Neither of these items connects him to Exhibits P10E and P10G. The personal bags found beside P10E and P10G on the living room floor were Exhibit P23, the Coach bag belonging to the third accused, and Exhibit P24, the Feraud bag belonging to the second accused. No bag or personal item belonging to the first accused was found near Exhibits P10E or P10G. [149] The absence of any personal item of the first accused near these two drug exhibits is a significant negative fact. It eliminates the very evidential foundation upon which this court finds common intention for Charges 4 and 5 as between the second and third accused. [150] If there were a shared common intention spanning all three accused in respect of P10E and P10G, one would expect some evidential connection between the first accused and those exhibits. There is none. [151] Furthermore, the first accused's movement during the raid was directed towards the kitchen. This was away from the location of Exhibits P10E and P10G in the living room. This physical trajectory further undermines any inference that the first accused was exercising custody or control over the living room drug exhibits. It also undermines any inference that he was a party to a common intention with the second and third accused in respect of those specific exhibits. [152] On Charges 4 and 5, the evidential foundation for common intention is confined entirely to the second and third accused. It does not extend to include the first accused. No prima facie case is made out against the first accused on Charges 4 and 5. [153] The first accused is accordingly acquitted and discharged without his defence being called in respect of Charges 3, 4, and 5. ANALYSIS AND FINDINGS — SECOND ACCUSED (MOHD AMIRUL ASRAF BIN ABU BAKAR) Charges 4 and 5 — Possession of Theophylline/Etizolam and Ketamine, read with section 34 Identity of the Drugs [154] The first ingredient for Charges 4 and 5 against the second accused, namely that the substances in Exhibits P10E and P10G are respectively a scheduled poison and a dangerous drug, is established. [155] SP2, Puan Liew Chyi, confirmed through the Chemistry Report admitted as Exhibit P12 that the substance in Exhibit P10E, a strip of red/silver foil blister pack found on the living room floor, contained 1.12 grams of a substance comprising Theophylline and Etizolam. Both substances are scheduled under the Poisons Act 1952. [156] She further confirmed through the Chemistry Report admitted as Exhibit P12 that the substance in Exhibit P10G, a transparent plastic packet found on the same living room floor, contained 0.25 grams of Ketamine. Ketamine is a dangerous drug listed in the First Schedule to the DDA. [157] SP2's chemist evidence is accepted at face value for the reasons given at paragraphs 91 to 95 above, applying the principle established in Balachandran v PP. The challenge to her calibration records carries no greater weight in respect of these exhibits than it did in respect of Exhibit P10A. It is rejected on the same basis. [158] The first ingredient is established for both Charges 4 and 5 against the second accused. Possession — Physical Element [159] Possession has not been defined under the DDA or the Poisons Act 1952. It is well established that, to constitute possession, a person must know the existence of the thing possessed, as stated in Toh Ah Lam and Mak Thim v Rex. Furthermore, as established in cases such as Yee Ya Mang v PP and Chan Pean Leon v PP, a person must have the power of disposal over it, and must be conscious of his possession of it. [160] Possession requires proof of two elements. The first is the physical element of custody or control. The second is the mental element of knowledge: Ibrahim Mohamad v PP. [161] Physical control does not require that the accused be holding the drugs in his hands. It is sufficient if the accused has such a degree of control over the drugs that he is able to deal with them as if they were his own. [162] In respect of the second accused and Exhibits P10E and P10G, the case for possession rests on three pillars. [163] First, his presence in the premises during the raid. Secondly, SP3 testified, and it was not challenged in cross-examination, that the second accused was discovered hiding behind the front door when the raiding team entered the premises. This behaviour is a relevant circumstance under section 8 of the Evidence Act 1950. Section 8 provides that the conduct of a party relevant to the matter in issue is itself a relevant fact. This includes conduct that indicates an awareness of the circumstances that led to the arrest. [164] The inference most naturally drawn from the second accused's act of concealment is that he was aware of the presence of drugs in the premises and sought to avoid detection. He was hiding behind the open front door at the very moment the police announced their entry. This is not an inference piled upon inference. It is a direct and reasonable reading of the conduct evidence. [165] This court notes that the fact that the second accused was behind the front door was acknowledged and not disputed by his own counsel in oral argument at the close of the prosecution case, although counsel disputed the inference that this amounted to concealment. [166] The second pillar is Exhibit P24, the second accused's green Feraud waist bag, which was found on the living room floor in direct physical proximity to Exhibits P10E and P10G. [167] The contents of P24 are significant. They included his NRIC, his driving licence, his CIMB bank card, and RM130 in cash. These are items of practical necessity. They are items that a person routinely keeps within arm's reach. [168] Their presence on the living room floor immediately beside the drug exhibits is not consistent with the bag having been casually or unknowingly left there. It points instead to the second accused having been present and active in the living room in the period preceding the raid. His essential belongings were close by in an area that also contained drugs of which he was aware. [169] The third pillar is the second accused's physical presence in the premises and in the living room area. Bare presence alone is insufficient to ground a finding of possession: Chan Pean Leon v PP. However, the combination of presence with conscious concealment and the placement of personal belongings beside the drug exhibits creates a composite factual foundation. When subjected to maximum evaluation, that foundation supports a prima facie inference of possession that can only be displaced by evidence in rebuttal. [170] This court finds that the physical element of possession, namely custody or control of Exhibits P10E and P10G, is established to a prima facie standard against the second accused. Possession — Mental Element (Knowledge) [171] As to the mental element, this court finds that knowledge of the existence of the drugs in Exhibits P10E and P10G is inferentially established by the same combination of circumstances: the second accused's intimate proximity to the drugs through the placement of his personal bag beside them, and his behaviour in concealing himself when police entered. These circumstances, when subjected to maximum evaluation, support the inference that the second accused was aware of the presence of the drug exhibits in the living room. The mental element of possession is established. Common Intention — section 34 Penal Code [172] Charges 4 and 5 are framed with common intention under section 34 of the Penal Code. The question is whether, on the prosecution evidence, a common intention between the accused persons can be inferred at the prima facie stage. Section 34 of the Penal Code 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. In law, common intention requires a prior meeting of the minds and presupposes some prior concert: Namasiyiam Doraisamy v PP. However, direct evidence of a prior plan to commit an offence is not necessary in every case because common intention may develop on the spot and can be inferred from the facts and circumstances of the case and the conduct of the accused. [173] In Seyedmohsen Namazivaj Seyedreza v PP [2024] CLJU 124 (CA), it was affirmed that it is virtually impossible to directly prove a pre-arranged plan between the accused, and that the proof of common intention is a matter of inference from the circumstances derived from the conduct of the accused. Common intention may be inferred where the accused persons were present and were not there by accident or coincidence. It is sufficient if the circumstances permit only one reasonable inference, namely that the accused persons acted with a shared purpose. [174] This court finds that common intention for Charges 4 and 5 is established at the prima facie stage between the second accused and the third accused. [175] The factual foundation for this finding is specific, direct, and unambiguous. Exhibit P24, the second accused's Feraud waist bag, and Exhibit P23, the third accused's Coach bag, were both found on the living room floor at the same location immediately beside Exhibits P10E and P10G. [176] The co-location of both accused persons' personal bags with both drug exhibits at the same spot on the living room floor is inconsistent with innocent coincidence. Two separate individuals' personal bags, each containing identity documents, bank cards, and cash, were found side by side next to two drug exhibits. [177] That is a circumstance which, when the evidence is evaluated to the maximum, supports only one reasonable inference. Both accused persons were present, knew of each other's presence, and were jointly associated with the drug exhibits. The inference of joint custody and a shared state of knowledge is both available and compelled at the prima facie stage. [178] This court is careful to confine the finding of common intention for Charges 4 and 5 to the second accused and the third accused specifically. As set out in the analysis concerning the first accused, his personal effects were found on his person. They were not found beside Exhibits P10E and P10G. His movement during the raid was also directed away from the living room. The factual basis for common intention for Charges 4 and 5 therefore does not extend to the first accused. [179] Upon maximum evaluation, this court finds that the prosecution has established a prima facie case against the second accused on Charges 4 and 5. The second accused is called upon to enter his defence on Charges 4 and 5. Charge 3 — Second Accused: Trafficking in 170.96 grams of Methamphetamine (Exhibit P27) The Double Presumption Prohibition [180] Charge 3 concerns Exhibit P27, the black plastic bag found at the left wall of the kitchen. It contained 170.96 grams of Methamphetamine in three transparent plastic packets (Exhibits P10I(1)–P10I(3)), as confirmed by the Chemistry Report admitted as Exhibit P12. It also contained a grey digital weighing scale (Exhibit P28). [181] To establish the charge of trafficking under section 39B(1)(a) DDA against the second accused, the prosecution must first prove that the second accused was in actual possession of Exhibit P27. This is because the use of the double presumption is not permissible under Malaysian law: Mohamed bin Hassan v PP. [182] The prosecution cannot first invoke the constructive possession presumption under section 37(d) to establish custody and then stack the trafficking presumption under section 37(da) upon it. The prosecution must therefore adduce direct evidence of actual possession of P27 before the section 37(da) trafficking presumption can be invoked. [183] P27 was found in the kitchen. The second accused was found in the living room area, hiding behind the front door. No prosecution witness gave evidence that the second accused, at any material time, handled, carried, moved, or exercised any physical custody or control over P27 or its contents. Neither his body nor any of his personal belongings was found in the kitchen or in proximity to P27. The second accused's physical location on the date of the raid is entirely inconsistent with actual possession of an exhibit found in a separate part of the premises. [184] The prosecution invited this court to infer that the combination of the two Methamphetamine exhibits, namely P25 (found in the first accused's hand) and P27 (found in the kitchen), together with P28 (the weighing scale), pointed towards a drug packing enterprise involving all accused persons. [185] This court has considered this submission. However, as stated in the analysis concerning the first accused, an inference of a general drug operation at the premises does not translate into proof of individual possession of specific exhibits by specific accused persons. [186] The question is not whether illegal activity may have been occurring at the premises generally. The question is whether the prosecution has produced credible evidence that the second accused had actual custody and knowledge of P27 specifically. Speculative inferences drawn from the general nature of the drug operation cannot sustain a prima facie case when the fundamental foundation of actual possession is absent. [187] The submission that all three accused were engaged in a collective enterprise based on the presence of multiple drug exhibits at a single location is rejected as an impermissible substitute for direct evidence of possession. [188] There must be a positive, direct, or cogently inferential evidential link between the second accused and Exhibit P27 itself. That link does not exist on the evidence before this court. Common Intention — section 34 for Charge 3 [189] The second accused's concealment behaviour, which this court has treated as generating an inference of knowledge of the drugs in the living room, does not extend to P27 in the kitchen. The inference arising from the second accused's hiding behind the front door is most naturally connected to the drugs, namely P10E and P10G, in the living room where he was physically located and where his bag was found. It cannot, without more, be stretched to encompass a common intention to traffic in a separate and distinct quantity of drugs found in a different physical location. As Namasiyiam Doraisamy v PP makes plain, common intention must be directed towards the specific offence charged. It is not directed towards criminal conduct in general. [190] There is a principled distinction between this court's finding of common intention for Charges 4 and 5 and the absence of any such finding for Charge 3: in respect of Charges 4 and 5, the second accused's personal bag was found physically beside the drug exhibits in question; in respect of Charge 3, no personal item of the second accused, and no part of his person, was found anywhere near Exhibit P27 in the kitchen. The specific evidential link that grounds common intention for Charges 4 and 5 is wholly absent for Charge 3. [191] Upon maximum evaluation, this court is not satisfied that the prosecution has established a prima facie case against the second accused on Charge 3. The second accused is acquitted and discharged without his defence being called on Charge 3. ANALYSIS AND FINDINGS — THIRD ACCUSED (WALIZA BIN SADAT GUL) Charges 4 and 5 — Possession of Theophylline/Etizolam and Ketamine, read with section 34 Identity of the Drugs [192] The first ingredient for Charges 4 and 5 against the third accused, namely that the substances in Exhibits P10E and P10G are a scheduled poison and a dangerous drug respectively, is established on the same basis as set out in the analysis of the second accused at paragraphs 154 to 158 above. SP2's confirmed findings in the Chemistry Report admitted as Exhibit P12 establish that P10E contained 1.12 grams of a substance comprising Theophylline and Etizolam. Both substances are scheduled under the Poisons Act 1952. SP2 also confirmed that P10G contained 0.25 grams of Ketamine. Ketamine is a dangerous drug listed in the First Schedule to the DDA. [193] SP2's evidence is accepted at face value in accordance with Balachandran v PP, for the same reasons given at paragraphs 91 to 95 and 154 to 158 above. The challenge to the calibration records applies with equal force here. It is rejected for the same reasons. The first ingredient is established. Possession [194] The case for possession of Exhibits P10E and P10G against the third accused rests principally on the presence of his personal bag, Exhibit P23, the black Coach crossbody bag, on the living room floor beside Exhibits P10E and P10G. [195] Exhibit P23 contained items of the highest personal importance. These included the third accused's NRIC (Exhibit P23A), his driving licence (Exhibit P23B), a set of house keys (Exhibit P26), a Seiko Presage wristwatch, a Public Bank card, and cash of RM1,500. [196] It is difficult to overstate the significance of these contents. An NRIC and driving licence are legal identity documents that every Malaysian adult is required to carry and protect. A set of house keys, even though it was not empirically proven through testing that these were the keys to the raided premises, remains an essential personal item. A wristwatch and RM1,500 in cash are items of material value. [197] Collectively, these are the kind of items that a person carries on his person or keeps in an immediately accessible bag precisely because they are indispensable and valuable. The presence of such a bag, with all those contents, on the living room floor immediately beside Exhibits P10E and P10G supports a compelling prima facie inference that the owner of that bag was present at that specific spot and was aware of what was immediately around him. [198] The third accused was found lying on a mattress in the living room at the time of the raid. His physical position in the living room is consistent with the presence of his bag in that same area. [199] The spatial relationship between the bag, the drugs, and the third accused is a direct evidential nexus. The third accused's bag was found beside the drugs, while he himself was found in the same room. This is not a case where the third accused's bag was found in a different room from where he was located. Nor is it a case where the bag contained only non-identifying items. [200] The contents of the bag positively identify it as belonging to the third accused. They also establish that he ordinarily kept it in close proximity to his person. [201] Applying Chan Pean Leon v PP and Leow Nghee Lim v Reg [1956] MLJ 28 (Singapore HC), the proximity of an accused person's personal belongings to drug exhibits supports an inference of possession at the prima facie stage where the circumstances are consistent with control and awareness. [202] This court finds that inference to be warranted and cogent in the present case. On the evidence before this court, the inference can only be displaced by evidence in rebuttal from the accused. That is precisely the threshold for a prima facie case as defined in section 180(4) CPC and articulated in Balachandran v PP. [203] The defence made the point that the third accused showed no signs of flight or concealment, unlike the first or second accused, and submitted that this favours an inference of innocence. [204] This court has considered this submission carefully. While the third accused's passive demeanour during the raid is a relevant circumstance, it does not carry the forensic weight attributed to it by counsel. [205] The prima facie case for Charges 4 and 5 does not depend on any finding of guilty conduct or evasive behaviour. It rests independently and directly on the spatial relationship between Exhibit P23 and Exhibits P10E and P10G. [206] A person may be in possession of drugs and yet remain composed and undisturbed when the police arrive. The absence of flight or concealment is one factor that might, in some cases, raise a reasonable doubt. However, it does not negate the physical evidence of possession at the prima facie threshold. At that stage, the court's task is not to determine guilt beyond reasonable doubt. It is to assess whether the evidence is such that it can only be displaced by evidence in rebuttal. [207] The challenge that the absence of fingerprint or DNA evidence on P10E and P10G is fatal to the prosecution's case is rejected for the same reasons given at paragraphs 143 to 146 above: forensic evidence of that nature is corroborative and confirmatory in character, and is not a mandatory ingredient of a possession charge: Francis Abuchi Odike v PP [2005] 1 LNS 928 (CA). [208] This court finds that the physical and mental elements of possession of Exhibits P10E and P10G are established to a prima facie standard against the third accused. Common Intention — section 34 Penal Code [209] Common intention between the second accused and the third accused for Charges 4 and 5 is established at the prima facie stage for the same reasons given in the analysis of the second accused at paragraphs 172 to 179 above. [210] The co-location of Exhibit P23, the third accused's Coach bag, and Exhibit P24, the second accused's Feraud bag, at the same spot on the living room floor beside the same drug exhibits, namely P10E and P10G, is inconsistent with coincidence. [211] This court has already articulated in detail why the co-location of two individuals' personal bags containing their identity documents, driving licences, bank cards, and cash at a spot immediately adjacent to drug exhibits gives rise to a cogent and compelling prima facie inference of joint custody and common awareness. That analysis applies with equal force to the third accused's position in respect of Charges 4 and 5 as it does to the second accused's. [212] The finding of common intention for Charges 4 and 5 is accordingly confined to the second accused and the third accused. It is not extended to the first accused, for the reasons stated at paragraphs 147 to 153 above. [213] Upon maximum evaluation, this court finds that the prosecution has established a prima facie case against the third accused on Charges 4 and 5. The third accused is called upon to enter his defence on Charges 4 and 5. Charge 3 — Third Accused: Trafficking in 170.96 grams of Methamphetamine (Exhibit P27) Actual Possession — The Tenancy Argument [214] In respect of the third accused and Exhibit P27 in the kitchen, the prosecution's primary argument was that the third accused, as the named tenant who had rented the premises for approximately four months prior to the raid, constructively possessed all items found within the premises, including P27. [215] This argument cannot succeed in law. Constructive possession requires proof of custody over and knowledge of the specific items in question. It does not arise merely from proof of general occupancy of the premises in which those items are found. [216] As the Federal Court made clear in Mohamed bin Hassan v PP, the prosecution must prove actual possession before the trafficking presumption under section 37(da) can be invoked. The prosecution cannot invoke the constructive possession presumption under section 37(d) on the basis of occupation and then use that presumption to trigger section 37(da). That is the double presumption which is prohibited. [217] The tenancy of the premises, standing alone, does not constitute “custody or control” within the meaning of section 37(d). Even if it did, the double-presumption route remains foreclosed. [218] In any event, the tenancy argument is fundamentally undermined by the evidence of the prosecution's own witnesses. [219] SP4 testified that the premises has two bedrooms. SP5, the Investigating Officer, made the unqualified concession under cross-examination that both bedrooms had been occupied, namely, “kedua-dua bilik tempat kejadian ini telah dihuni.” This is not merely a defence contention or a suggestion put by counsel. It is a factual admission from the officer responsible for investigating this case. [220] The admission is corroborated by SP4's evidence that rent was paid by or through persons other than the third accused himself. [221] The combined effect of these admissions is clear. The premises was a multi-occupant household. It was not the exclusive abode of the third accused alone. [222] In a multi-occupant household, the named tenant cannot automatically be treated as the constructive possessor of all items found in every part of the premises. The prosecution must do more. It must adduce evidence that the third accused specifically had access to and knowledge of the particular exhibit in question. [223] The premises is a double-bedroom terrace house. The kitchen is a discrete area within that house. The third accused was found in the living room, not the kitchen. His personal bag and all his personal effects were found in the living room. No prosecution witness gave evidence that the third accused entered the kitchen, approached the location of Exhibit P27, or otherwise had any physical contact with or proximity to P27 at any material time. [224] In these circumstances, this court cannot find on the evidence that the third accused had actual possession, whether in the form of physical custody or mental knowledge, of Exhibit P27 and its contents. Investigative Gap — Third-Party Occupancy and Adverse Inference [225] The combined effect of SP5's concession and SP4's evidence on rent collection creates a material and unexplained investigative gap in the prosecution's case on Charge 3. The prosecution's own evidence positively discloses that other persons were occupying the premises and that those persons, unlike the three accused, were never investigated. SP5 conceded that he conducted no investigation into who these other persons were, what access they had to the premises and specifically to the kitchen, or whether they had any connection to Exhibit P27. [226] This is not a minor omission. The identity and role of the other occupants of a multi-bedroom household are directly material to the question of who had custody and control over items found in the shared common areas and service areas of that household, including the kitchen. The prosecution bore the burden of ruling out third-party connection to P27. It has not done so. [227] SP4's employee, the person who physically collected rent from the various persons occupying the premises, was a material witness with direct and contemporaneous knowledge of the identity and pattern of occupation of the household. This individual was not called as a prosecution witness. No explanation was offered for his non-attendance. [228] This court draws an adverse inference against the prosecution under section 114(g) of the Evidence Act 1950 for the failure to call this witness. The irresistible inference from his non-production is that his evidence would not have assisted the prosecution's case on the question of exclusive occupancy. A party who fails to produce a witness who is plainly material invites the court to draw the inference that the evidence of that witness would have been unfavourable: section 114(g) of the Evidence Act 1950. [229] In PP v Jiang Haiyan (W/China) [2016] 9 MLJ 133 (HC), the court affirmed the principle that where the prosecution evidence raises questions about third-party access and occupancy which the prosecution fails to resolve, the unresolved lacuna must be resolved in favour of the accused. Where the investigative gap is of the prosecution's own making, arising from its failure to investigate matters disclosed by its own witnesses, it is not permissible to call upon the accused to fill that gap by adducing a defence. The burden is on the prosecution and remains throughout on the prosecution. [230] This court applies that principle here. The collective failure to investigate third-party occupancy and the failure to call SP4's employee together create a lacuna in the prosecution's case on Charge 3. It was a lacuna that the prosecution was obliged to address but did not. [231] This court finds that the prosecution's constructive possession argument based on tenancy must fail on the evidence before it. There is no direct evidence of any kind, whether of handling, physical proximity, or contemporaneous conduct, placing the third accused in custody or control of P27. He was found in the living room, not in the kitchen. His personal bag and effects were found in the living room, not in the kitchen. No prosecution witness gave evidence that the third accused was seen near, or in possession of, P27 at any time. The physical element of actual possession is therefore not established. Common Intention — section 34 for Charge 3 [232] The analysis of common intention in respect of Charge 3 for the third accused mirrors and reinforces that given for the second accused. Common intention under section 34 of the Penal Code must be directed at the specific offence charged. It is not directed at criminal activity at the premises in general. The specific offence charged in Charge 3 is the trafficking of the 170.96 grams of Methamphetamine contained in Exhibit P27 in the kitchen. [233] For a finding of common intention in respect of that specific charge, there must be evidence from which it can be inferred that the third accused shared a pre-arranged plan, whether express or inferable from the circumstances, to traffic in that specific quantity of drugs contained in that specific exhibit. [234] The factual basis on which common intention is found for Charges 4 and 5, namely the co-location of Exhibit P23, the third accused's Coach bag, with Exhibits P10E and P10G in the living room, has no parallel in respect of Charge 3. Exhibit P23 was not found in the kitchen. No personal effect of the third accused was found near Exhibit P27. The third accused himself was not in the kitchen. This court therefore has no evidential anchor from which to infer that the third accused shared a common intention with any co-accused in respect of the trafficking of the drugs contained in Exhibit P27. [235] Applying Namasiyiam Doraisamy v PP and Seyedmohsen Namazivaj Seyedreza v PP, common intention cannot be inferred from mere simultaneous presence at the premises. This is particularly so where, as here, the prosecution's own evidence establishes the presence of uninvestigated third-party occupants at the premises. The accused also has no physical nexus whatsoever to the specific drug exhibit forming the subject matter of the charge. In addition, the investigative gaps created by the prosecution's own failures remain unclosed. The prosecution has not established a prima facie case of common intention for Charge 3 against the third accused. [236] The finding of no prima facie case against the third accused on Charge 3 is internally consistent with, and reinforces, the corresponding findings in respect of the first and second accused on the same charge. These three findings are not coincidental or cumulative: each rests on an independent evaluation of the prosecution evidence as it concerns the individual accused in question. But their convergence on the same outcome in respect of the same exhibit confirms the correctness of the analysis: the prosecution has simply not established any accused person's possession of Exhibit P27 on the available evidence. [237] Upon maximum evaluation, this court is not satisfied that the prosecution has established a prima facie case against the third accused on Charge 3. The third accused is acquitted and discharged without his defence being called on Charge 3. DECISION [238] Having subjected the totality of the prosecution evidence to maximum evaluation as required by Looi Kow Chai & Anor v PP, this court now sets out its consolidated findings in respect of each accused person and each charge. [239] In respect of the first accused, Sadam Husain bin Ustaz Ahmad Nabi, this court has assessed the credibility and reliability of all prosecution witnesses. It has also drawn the inferences that the evidence admits of, including the inference most favourable to the accused where the evidence is equivocal. [240] On Charge 1, the prosecution has adduced credible evidence through the direct testimony of SP3 establishing actual possession of Exhibit P10A, namely 697.78 grams of Methamphetamine, by the first accused at the moment of the raid. That evidence is supported by an unbroken chain of exhibits involving SP3, SP5, SP1, and SP2. It is further supported by SP2's chemist evidence, which is accepted at face value in accordance with the established principle in Balachandran v PP. The trafficking presumption under section 37(da)(xvi) of the DDA is properly invoked upon proof of actual possession of a quantity exceeding 50 grams. The presumption remains unrebutted on the evidence before this court. [241] The question this court posed itself, namely whether it would be prepared to convict the first accused on Charge 1 if his defence were called and he elected to remain silent, must be answered in the affirmative. Pursuant to section 180(3) of the CPC, the first accused is called upon to enter his defence on Charge 1. [242] On Charge 2, the actual possession of Exhibit P10C, found in the first accused's own clothing pocket, is established by direct evidence and admits of no innocent explanation. The question posed is again answered in the affirmative. The first accused is called upon to enter his defence on Charge 2. [243] On Charges 3, 4, and 5, the same question must be answered in the negative for the detailed reasons set out in paragraphs 91 to 106 of these grounds above. No evidential nexus connects the first accused to Exhibit P27, Exhibit P10E, or Exhibit P10G. The double-presumption route is foreclosed in respect of P27 by Mohamed bin Hassan v PP. The common intention for Charges 4 and 5 is confined on the evidence to the second and third accused. [244] Pursuant to section 180(2) of the CPC, the first accused is hereby acquitted and discharged without his defence being called in respect of Charges 3, 4, and 5. [245] In respect of the second accused, Mohd Amirul Asraf bin Abu Bakar, the prosecution has established a prima facie case on Charges 4 and 5. [246] The prosecution has established possession through the spatial relationship between Exhibit P24, his personal Feraud waist bag containing his identity documents and bank cards, and Exhibits P10E and P10G on the living room floor. That spatial relationship is reinforced by his conduct in hiding behind the front door at the moment of the police entry. [247] Common intention between the second accused and the third accused is established at the prima facie stage by the co-location of their respective personal bags at the same spot beside the same drug exhibits. The question posed in respect of Charges 4 and 5 is answered in the affirmative.