1. ) Syahridan Azham Bin Azmi (BA-45A-74-04/2022)

The accused persons were charged with the following charge: Bahawa kamu bersama-sama pada 10/4/2021, jam lebih kurang 2.30 petang, bertempat di hadapan Restoran Fareed (AR Maju Sdn Bhd), Lorong Masjid 2, Kampung Sungai Kayu Ara, Petaling Jaya, daerah Petaling, dalam negeri Selangor Darul Ehsan, bagi mencapai niat bersama, kamu telah mengedar dadah berbahaya jenis Cannabis seberat 997.9 gram, dan dengan itu kamu telah melakukakan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dan dibaca dengan seksyen 34 Kanun Keseksaan.

At the end of the prosecution case, I found that the prosecution had failed to make out a prima facie case against the accused persons. Therefore I acquitted and discharged them. My reasons now follow.

The prosecution called the following witnesses to prove their case: SP1:Abd Rahim bin IsmailAhli KimiaSP2:Insp Darwis bin AripinPegawai SerbuanSP3:Mohd Fadli bin AshaariAdik OKT2SP4:Sjn RF 142290 Hafrizan bin JilinAnggota SerbuanSP5:Insp G/19300 Fadlee Syah bin Muhammad RosliPegawai PenyiasatSP6:Insp G/27432 Muhammad Zuhairi bin Mohd YusofPegawai Penyiasat Ganti

The brief facts of the prosecution case as taken from the DPP's submission is as follows:

1 Bertindak atas maklumat pengedaran dadah, pada 10/4/2021 jam lebih kurang 1430 hrs, SP2 bersama 7 anggota pasukan serbuan telah sampai di hadapan Restoran Fareed AR Maju Sdn Bhd Lorang Masjid 2, Kampung Sg Ara, Petaling Jaya Selangor dan membuat pemerhatian selama 10 minit di hadapan restoran.

2 SP2 kemudiannya telah memperkenalkan diri polis dan menahan dua lelaki Melayu (OKT1 dan OKT2) yang berada di hadapan restoran. Semasa pengadu memperkenalkan diri polis, pengadu melihat OKT1 telah bertindak melepaskan satu bungkusan plastik berwarna hijau ke atas jalan.

3 Kedua-dua OKT cuba bertindak melarikan diri namun berjaya ditahan oleh pengadu dan pasukan serbuan. Pemeriksaan badan terhadap kedua-dua OKT tidak menjumpai apa-apa barang salah.

4 SP2 telah mengambil bungkusan plastik hijau bertulisan "WATSON" yang dilepaskan oleh OKT1 yang masih berada di atas jalan dalam pandangan yang boleh dilihat oleh pengadu dan OKT1. Hasil pemeriksaan dalam plastik hijau bertulisan "WATSON" oleh SP2 mendapati mengandungi plastik kuning bertulis DHL dan di dalamnya terdapat satu ketulan mampat disyaki dadah jenis ganja anggaran berat 1022 gram.

5 Hasil semakan identiti kedua-dua OKT mendapati butiran adalah seperti yang berikut:

Syahridan Azham bin Azmi (No KP: 890101-56-5121) ("OKT1");

Syamsul Akmal bin Ashaari (No KP: 800302-10-5285) ("OKT2");

6 SP2 kemudiannya telah membawa balik barang kes dan OKT-OKT ke IPD Petaling Jaya untuk tindakan lanjut. Barang kes telah diserahkan kepada Pegawai Penyiasat (SP5) dan satu laporan polis telah dibuat oleh SP2 sebagaimana Repot Damansara 5200/21.

7 Hasil analisa kimia oleh SP1 mengesahkan barang kes merupakan dadah jenis Cannabis dengan berat 997.9 gram sepertimana yang ditakrifkan di dalam seksyen 2 Akta Dadah Berbahaya 1952.

8 Keterangan SP3 mengesahkan SP3 telah dihubungi oleh OKT2 seminggu sebelum kejadian untuk mencari "barang hijau" dan SP3 telah menghubungi OKT1 yang merupakan kawan lama SP3 yang dikenali dari zaman sekolah. SP3 telah bertanya sama ada OKT1 mempunyai barang hijau dan OKT1 telah berkata "OK". Keterangan SP3 juga menunjukkan SP3 hanya bertanya kepada OKT1 berkenaan barang tersebut dan pada hari kejadian, SP3 telah mendapat tahu bahawa OKT1 dan OKT2 telah ditangkap berkenaan dengan kes ganja. Semasa pemeriksaan utama juga, SP3 sahkan bahawa tidak pernah melihat OKT1 dan OKT2 melepak bersama.

9 Keterangan SP5 iaitu pegawai penyiasat dalam kes ini mengesahkan bahawa berdasarkan siasatannya, terdapat transaksi jual beli dadah jenis cannabis yang dirujuk sebagai barang hijau akan berlaku pada 10 April 2021 di Restoran Fareed (AR Maju Sdn Bhd), Lorong Masjid 2, Kampung Sungai Kayu Ara, Petaling Jaya, Selangor dan berdasarkan siasatan juga menunjukkan OKT2 telah meminta bantuan daripada adiknya iaitu SP3 dalam kes ini untuk mencari barang hijau yang dipercayai dadah jenis cannabis selang beberapa hari sebelum kejadian. The court's duty at the end of the prosecution case

Section 180(1) of the Criminal Procedure Code ("CPC") provides that at the conclusion of the prosecution's case, the court shall consider if the prosecution has established a prima facie case against the accused person. Section 180 of the Criminal Procedure Code states:

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.

Mozley and Whiteley's Law Dictionary (11th edn) defines a prima facie case as: "A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side."

In PUBLIC PROSECUTOR v ONG CHENG HEONG [1998] 6 MLJ 678 ; [1998] 4 CLJ 209, the learned judge Vincent Ng held : "What then constitutes a 'prima facie case'? 'Prima facie' means on the face of it or at first glance. To me, in the light of Act A979, perhaps the most appropriate definition of a 'prima facie case' could be found in the Oxford Companion of Law (p 987), which has it as: A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive. (Emphasis added.) It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected."

In the Federal Court case of Abdullah bin Atan v Public Prosecutor and other appeals [2020] 6 MLJ 727 FC, Tengku Maimun Chief Justice (as she then was) said: "[42] The purpose of s 180(4) of the CPC was thus not to exclude the use of presumptions, inferences, or anything other than direct evidence, to establish a prima facie case. On the contrary:

(a)the Privy Council in Haw Tua Tau itself expressly envisaged that inferences may be drawn from the primary facts adduced, and the court must presume such inferences to be true at the close of the prosecution's case; and

statutory presumptions have often been invoked by the prosecution in order to establish a prima facie case of drug trafficking in previous cases. No concern was raised in Parliament as to the use of presumptions when considering amendments to s 180 of the CPC (see: Mohamad Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169; Tan Boon Kean v Public Prosecutor [1995] 3 MLJ 514). [43] Section 180(4) of the CPC must be read in light of its context and legislative purpose. By so doing, the phrase 'credible evidence proving each ingredient of the offence' in s 180(4) means that the prosecution may prove each ingredient of the offence either:

(a)by adducing credible direct evidence of that ingredient;

(b)by drawing inferences of fact, ie adducing credible circumstantial evidence, from which the ingredient can be inferred; or

(c)by invoking presumptions of law, ie adducing credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists. [58] Section 180(4) of the CPC and s 37(da) of the DDA must be read harmoniously, applying the doctrine of harmonious construction. In a nutshell, the doctrine requires that the legislation be construed in a way which would achieve a harmonious result and that construction should favour coherence in the law (see Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi bin Mukhtar [2020] 1 MLJ 141 at paras 7879). A harmonious construction would limit 'credible evidence' to the actual finding of possession, as propounded in Muhammed bin Hassan, and once that is established successfully, it would invoke the presumption of trafficking. Defence will then be called on trafficking where the legal burden would shift to the accused to disprove trafficking."

In the Federal Court case of Ariff Arhannan bin Che Udin v Public Prosecutor [2022] 3 MLJ 157 FC, Abdul Rahman Sebli FCJ (as he then was) opined: "[19] Given the imperatives of s 37(d) and 37(da) of the DDA, there are effectively two ways in which a prima facie case of trafficking under s 39B(1)(a) of the Act can be established by the prosecution at the close of its case:

by invoking the statutory presumption of trafficking under s 37(da), provided it is proved by actual or affirmative evidence that the accused was in possession of the drug. This is presumed trafficking; or

by invoking the statutory presumption of possession and knowledge of the nature of the drug under s 37(d), provided it is proved that the accused had custody or control of the drug. Read with the definition of trafficking under s 2 and taking into account the amount of the drug, an inference of trafficking can be drawn. This is trafficking by inference: Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor [1981] 1 MLJ 64; [1980] 1 LNS 181."

In order for the prosecution to make out a prima facie case for the trafficking charge against the accused persons, it is necessary for the prosecution to prove the following three elements of the offence under section 39B of the Act. There are first, the drugs involved must be a dangerous drug as specified in the First Schedule to the Act. Secondly, the drugs were in the possession of the accused persons and thirdly, the accused persons were trafficking in the said drugs. Lastly all of them had a common intention to do so as stated in section 34 of the Penal Code.

As far as the first element goes, there is no dispute that the drugs in this case was 997.9 grams of cannabis.

It is the remaining two elements that have not been proven by the prosecution id est the drugs were in the possession of the accused persons and that they were trafficking the same with common intention. The issues in this case

Uncreditworthy evidence by the RO SP2

In this case SP2's evidence contradicts with the CCTV recording to a large extent that makes it unsafe for the court to rely on his evidence as credible. What was stated in his witness statement is not what happened on the day in question. The court cannot rely on his evidence and has grave doubts about the veracity of his evidence. There were so many contradictions in the RO's evidence that it is difficult to accept his evidence as credit worthy. The contradictions were enumerated in the defence submissions especially OKT1's submissions.

In normal circumstances the evidence of a police witness will be accepted by the court, see the cases of Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257, Dickson Levy a/l Maria George v Public Prosecutor [2018] MLJU 98, Goh Han Heng v Public Prosecutor [2003] SGHC 226. But this is not to say that in all cases the evidence of police witnesses should be accepted carte blanche.

However in the case of KESAVAN KRISHNAN Iwn PP & SATU LAGI RAYUAN [2015] 6 CLJ 163, the Court of Appeal stated: [40] Adalah tidak dipertikaikan bahawa keterangan saksi-saksi polis hendaklah diterima jika keterangan tersebut didapati munasabah (lihat PP v. Mohamed Ali [1962] CLJU 129; [1962] 1 LNS 129; [1962] MLJ 257; PP lwn. Aedy Osman [2009] CLJU 13; [2009] 1 LNS 13; PP v. Abdul Latif Sakimin [2009] CLJU 130; [2009] 1 LNS 130; [2005] 6 MLJ 351). Pada pandangan kami, proposisi undang-undang bahawa keterangan saksi-saksi polis hendaklah secara prima facie diterima oleh mahkamah tidak boleh dipakai secara universal tanpa pengecualian. la banyak bergantung kepada fakta dan keadaan yang wujud dalam sesuatu kes. [41] Dalam kes State and Raymond Titus (High Court Ref No: 13858), Mahkamah Tinggi Afrika Selatan membincangkan mengenai pendekatan yang perlu diambil dalam menilai keterangan saksi polis seperti berikut: [11] As noted earlier, the fact that Horn was a policeman did not per se entitle his evidence to greater weight than that of the accused nor constitute a basis for laying caution to rest. It is true that the accused in the present case, if he was guilty, had a motive to testify dishonestly, ie to avoid conviction and punishment; but this is true in virtually every criminal case. Furthermore, and while one naturally does not expect a policeman to lie and falsely implicate an accused person, it is unfortunately not possible to say that this never happens. Police officials may have a desire to obtain convictions, particularly where a suspect is known to them as a person who has had previous brushes with the law or is one whom they suspect for other reasons (not founded in the evidence before the court) of having engaged in criminal activity. I do not for a moment suggest that the majority of policeman would behave in this way but, where an accused protests his innocence, one cannot dismiss it out of hand as being by its very nature a far-fetched possibility. [42] Kami bersetuju dengan pendekatan yang diambil oleh kes di atas dan berpendapat ia merupakan pendekatan yang betul dalam mempertimbangkan keterangan yang diberikan oleh saksi-saksi agensi-agensi penguatkuasa, termasuklah saksi polis. [43] Pada pandangan kami, keterangan yang diberikan oleh saksi-saksi polis wajar diterima oleh mahkamah sekiranya ia boleh dipercayai dan diyakini walaupun tidak disokong oleh keterangan bebas yang lain. Walau bagaimanapun, ini tidak bermakna keterangan saksi-saksi polis hendaklah diterima dalam apa jua keadaan pun. Dalam kes Tahir v. State (Delhi) [1996] 3 SCC 338, Mahkamah Agung India memutuskan:

.. In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. [44] Mengenai kes Mohamad Ali (supra), kami ingin membuat beberapa ulasan. Kes ini diputuskan sebelum kes Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734; [2003] 2 AMR 89 dan Balachandran v. PP [2005] 1 CLJ 85 yang memutuskan bahawa kesemua keterangan yang dikemukakan oleh pihak pendakwaan hendaklah tertakluk kepada penilaian maksimum. Terdapat juga kes-kes di mana saksi-saksi polis telah diputuskan oleh mahkamah mereka-reka, menokok tambah atau membunga-bungai (embellished) keterangan bagi menyokong kes pendakwaan (lihat PP v. Wong Moy [1988] 2 CLJ 521; [1988] 2 CLJ (Rep) 352; [1988] 3 MLJ 280; Chan King Yu v. PP [2009] 1 CLJ 601; PP v. Yap Boon Chang [1992] 2 CLJ 1257; [1992] 3 CLJ (Rep) 454; PP v. Foong Sek Hoong [1989] 2 CLJ 1259; [1989] 2 CLJ (Rep) 314).

(ii)The failure by the prosecution to tender the CCTV recording

The prosecution had failed to tender the CCTV recording and it was the defence who tendered it as IDD18 & IDD19 through the prosecution witnesses. The contents of the CCTV were confirmed as true by SP5 and SP6 when cross examined by the defence. In the recording it can be seen that the RO's version of events during the raid is quite different than what is shown in the CCTV. Therefore the court is constrained to doubt the truthfullness of the RO's evidence. The court can consider the contents of the CCTV recording eventhough it has not been marked as D because there was no suggestion that the recording was doctored or edited in any way. At this stage of the case, there is no burden on the defence to prove anything except to show that the prosecution has failed to make out a prima facie case.

It is the duty of the prosecution to make available the best evidence that can prove their case. Here the best evidence would have been the CCTV recording to show what transpired during the raid. However the IO failed to obtain the CCTV recording from the restaurant. Surprisingly the defence was able to do so and not the IO.

In the case of SEE KEK CHUAN v PP [2013] 6 MLJ 885, the Court of Appeal said : [29] The importance of the CCTV footage cannot be doubted. It would clear the lingering doubt of whether Ah Fatt carried the black bag and threw it to the floor and bolted at the lobby of the said hotel leaving the appellant to face the music, so to speak, or it was the appellant who was all alone was seen by PW3 carrying the black bag in his right hand and entering the lobby of the said hotel and was placed under arrest by PW3. Had the CCTV footage being produced, the High Court judge would be in a better position to verify the prosecution's version. Bereft of the CCTV footage, the High Court judge should have invoked the presumption under s 114(g) of the Evidence Act 1950 bearing in mind 'that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it' and acquitted and discharged the appellant without calling for his defence. [30] Right from the very start, the importance of the CCTV footage was highlighted by the defence. PW4 was categorical when he testified that the police had requested and was given the CCTV tape. PW9 testified that there were CCTVs focused at 32 locations at the said hotel and also at the lobby. These CCTVs would surely verify the version of the prosecution if tendered. Yet, not a single CCTV tape was produced and tendered by the prosecution. [33] In our judgment, the non-production of the CCTV footage amounts to a withholding or suppression of evidence and if it was produced, it would be unfavourable to the prosecution and, consequently, the adverse presumption under s 114(g) of the Evidence Act 1950 must be invoked against the prosecution. [34] It goes without saying that the non-production of the CCTV footage had disadvantaged or prejudiced the defence and the truth of the prosecution's case could not verified. Indeed in a criminal trial, fairness must be displayed by the prosecution. And the concepts of a fair trial and fairness have been recognised by our Malaysia Courts in Cheak Yoke Thong v Public Prosecutor [1984] 2 MLJ 119 (FC); Goi Ching Ang v Public Prosecutor [1999] 1 MLJ 507 (FC); Tan Hun Wah v Public Prosecutor and another appeal [1994] 1 MLJ 382; [1994] 1 AMR 113 (SC); Azahan bin Mohd Aminallah v Public Prosecutor [2005] 5 MLJ 334; [2004] 6 AMR 810 (CA); and Public Prosecutor v Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193; [2006] 2 CLJ 129 (FC).

In this case the CCTV recording clearly showed a different version of events compared to the evidence of the prosecution witnesses. Therefore it would be unsafe for the court to rely on the evidence of the RO SP2 and SP4 to call on the accused persons to enter their defence bearing in mind the seriousness of the charge in this case.

(iii)The failure of prosecution to make available the third person at the scene who was the informer and the worker at the restaurant who managed the CCTV decoder

The failure of the prosecution to secure the attendance of the above two witnesses had deprived the accused persons of a fair trial. This infraction would entitle them to an acquittal. See the cases of Yahya Hussein Mohsen Abdulrab v Public Prosecutor [2021] 5 MLJ 811, Rosli bin Yusof v Public Prosecutor [2021] 4 MLJ 479

In the case of Public Prosecutor v Asnawi bin Yusuf [2011] 4 MLJ 16 Court of Appeal, it was held that: [23] Now, perhaps curiously, when learned defence counsel wanted the above named three witnesses to testify, the public prosecutor said that all of them were not available. The reason proffered was that they cannot be traced as they are Indonesians! Such reason is simply untenable and indefensible particularly in a case involving the liberty of an individual. We have provisions in our laws to ensure that this should not have happened. It is clear law that when witnesses are offered by the prosecution to the defence at the end of the case for the prosecution, it is the bounden duty of the prosecution to avail these witnesses for the defence. If in the exercise of this duty, the prosecution fails to fulfill this obligation, the accused must be acquitted. [24] It was in evidence that the so called three Indonesians Abdul Rahman, Edy Shahputra and M Dahlan ('the missing three witnesses') were arrested and brought to the Plentong Police Station, see p 61 of the appeal record. [25] The three missing witnesses are important and material witnesses to the defence of the respondent in that they are the only people who can testify and establish the existence of Fakrullah. It cannot be over emphasised that the respondent is innocent until proven guilty and he must be given every opportunity to substantiate his story. Without these material witnesses the respondent will not be able to do so. It is not a question of these three missing witnesses being 'plugged from the air'; they were offered to the defence by the prosecution. The fact that the defence had already alerted the prosecution of their wish to call them makes it imperative for the prosecution to avail them. There is nothing unreasonable about this request. In addition to that it was the testimony of the respondent that Abdul Rahman came to the house on that fateful night when the respondent together with Fakrullah left in a car bearing registration No JCS 5739. Thus the evidence of Abdul Rahman is crucial to the respondent. [26] It was obligatory for the prosecution to secure their attendance once they were offered as witnesses to the defence. Such failure had occasioned a miscarriage of justice.

See also the case of Masoumeh Gholami Khaveh v Pendakwa Raya [2013] MLJU 461 Court of Appeal.

The informer in this case was essential to the unfolding of the narrative of the prosecution's case. This was because he was the one who could tell the court what was being discussed by him with OKT1. He could also enlighten the court whether OKT1 indeed wanted to buy the cannabis or something else as suggested by the defence during cross examination. His evidence was crucial and by depriving the defence of the opportunity to cross examine him creates a yawning gap in the prosecution's narrative.

In the case of TI CHUEE HIANG v PUBLIC PROSECUTOR[1995] 2 MLJ 433, the Supreme Court stated: "...it is clear law that the prosecution must have in court all witnesses from whom statements have been taken, but they have a discretion whether to call them or not. (See Teh Lee Tong v PP [1956] MLJ 194.) That discretion, however, must be exercised having regard to the interests of justice, which includes being fair to the accused (per Lord Parker CJ in R v Oliva [1965] 3 All ER 116 at p 122[1965] 2 WLR 1028 at p 1035), and to call witnesses essential to the unfolding of the narrative on which the prosecution case is based, whether the effect of their testimony is for or against the prosecution (per Lord Roche in the Ceylon Privy Council case of Seneviratne v R [1936] 3 All ER 36 at p 49, applied in R v Nugent [1977] 3 All ER 662; [1977] 1 WLR 789). In the present case, the informer, having regard to his role, was not a mere informer, but had assumed the mantle of an agent provocateur for it was he who had put the appellant in touch with the undercover agent, Lian. Indeed, he was the active instrument without whose intervention, the appellant might never have been even arrested. His identity was no longer a secret and thus, he had lost the protection from disclosure of identity normally accorded to informers under s 40 of the Act. In these circumstances, he came within the category of witnesses described by Lord Roche in Seneviratne, as 'witnesses essential to the unfolding of the narratives on which the prosecution case is based'. The same might be said of the informer's friend. Yet, neither the so-called informer nor his friend, whose testimony would have been essential to the unfolding of the narrative on which the prosecution case was based, was called by the prosecution or even made available to the defence to be called as defence witnesses nor any explanation vouchsafed to the trial judge for these glaring omissions. We hasten to add, that in a case such as the present, where it was never suggested by the prosecution that either of these individuals was not capable of belief, it would not have sufficed for the prosecution to have merely made them available to the defence to be called as defence witnesses, as such a course would have put the defence to the disadvantage of not having been able to cross-examine them on any point on which they might support the prosecution case. In our view, having regard to the circumstances of the present case, it was the obligation of the prosecution to call and examine these individuals as their witnesses or, at least, to have offered them for cross-examination by the defence, or in default, to have explained why they were unable or unwilling to call them as the case may be. We say so because without their testimony there was a gap in the narrative of the prosecution case. Moreover, there was no suggestion that their testimony would have been obviously hostile to the prosecution or otherwise unreliable, in which case, 'the prosecutor will ensure that the accused is given the opportunity to call the witness' (per the High Court of Australia in Richardson). We also observed that although counsel for the appellant did, in the course of his address in the court below, criticize the prosecution for failing to call the informer, nowhere in his judgment did the judge direct his attention to this point. This, in our view, was a serious misdirection by way of non-direction which had occasioned a grave miscarriage of justice."

In PANG CHEE MENG v PUBLIC PROSECUTOR[1992] 1 MLJ 137, the then Supreme Court had said : If some of these claimed witnesses cannot be traced, it was a combination of unhappy circumstances in this case. The accused cannot be penalized for lack of ingenuity in police investigations depriving him of the time-honoured benefit of doubt.

(iv)Informer had taken on the role of an agent provocateur

In this case the informer had taken an active role during the negatiations to transact the drug deal. His statement was taken by SP6 who was the IO warisan of this case on the instruction of the DPP. But he was never called to give evidence nor was he offered to the defence to become a witness.

In Wan Yuriilhami bin Wan Yaacob Iwn Pendakwa Raya dan satu lagi rayuan [2009] 2 MLJ 383, Court of Appeal, Raus Sharif JCA (as he then was) said : "Pemberi maklumat adalah dilindungi dari memberi keterangan manakala agen perangkap tidak. Dalam lain perkataan, jika seseorang itu hanya seorang pemberi maklumat, pihak pendakwaan tidak perlu memanggilnya sebagai saksi atau menawarkannya kepada pihak pembelaan. Pemberi maklumat adalah dilindungi oleh s 40 ADB. Sebaliknya jika seseorang itu adalah seorang agen perangkap, ia perlu memberi keterangan di mahkamah sebagai saksi pendakwaan dan jika tidak dipanggil ditawarkan kepada pihak pembelaan. Ketinggalan berbuat demikian akan menarik pemakaian s 114(g)Akta Keterangan 1950 terhadap pihak pendakwaan."

In Kamalahassan a/l Latchimanan v Pendakwa Raya [2008] 3 MLJ 810 the Court of Appeal speaking through Suriyadi JCA (as he then was) held : "Currently, in a police operation where an informer goes beyond mere supplying of information or the mere introduction of the police to the appellant, but takes the extra mile of encouraging the target to induce the commission of a crime, courts are of the view that he has metamorphosed into an agent provocateur. If that happens his evidence becomes admissible under s 40A of the same Act but naturally loses his protection under the abovementioned s 40. Normally an agent provocateur is presumed to be unworthy of credit and testimony. Section 40A(1) supplies the exception in that no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or had abetted the commission of an offence by any person under the Dangerous Drugs Act if the attempt to abet or abetment was for the sole purpose of securing evidence against such person. Once an informer falls under the category of an agent provocateur, any failure to call him as a witness may attract the presumption of adverse inference under s 114(g) of the Evidence Act 1950. In such a situation since it is the right of the prosecution to call or not to call any witness, and to avoid any potential sticky position, rather than calling him to testify, it is in order for the prosecution to offer that witness to the accused person (Adel Mohammad el Dabbah v AG Palestine [1944] AC 156). By doing this the prosecution avoids being accused of suppressing or withholding any evidence in the form of a witness (Munusamy v Public Prosecutor [1987] 1 MLJ 492 at p 494)."

(v)Possession of the drugs by the accused persons not proven

The first accused had no knowledge of the contents of the bag containing the drugs P15 as it was only a fleeting moment where he held the bag for about three seconds before the police team ambushed him. He did not open the bag to see its contents. The bag was in the basket of the motorcycle parked just outside the restaurant. The owner of the motorcycle was never established. Both the accused persons and the informer were seated at one of the tables in the restaurant. The first accused and the informer were discussing among themselves. Later the first accused got up and walked towards the motorcycle and as he picked up the bag he was arrested by the raiding team.

Justice Suriyadi JCA (as he then was), in the case of ROMIAMORA BIN AMIR v PENDAKWA RAYA [2010] MLJU 1288, had famously held : "Unless knowledge is proved, an item however close to a person, could just be miles away."

The second accused had never held the bag P15 at any time during the incident, therefore at no time did he have custody or control of the bag containing the drugs, more so knowledge of its contents.

(vi) Common intention was not proven

Where two accused persons are both charged under the Penal Code, s 34, the prosecution must establish the following three elements for each of them:

the criminal act element;

the common intention element; and

the participation element.

Section 34 of the Penal Code does not create a substantive offence. It lays down only a rule of evidence to infer joint responsibility for a criminal act performed by a plurality of persons. It is merely a rule of evidence open to the prosecution when several accused persons are alleged to be involved in the commission of an offence. Therefore, if two or more person commit an offence, it is the same as if each of them had done the act separately and each will be liable constructively for the act in the same manner as if it were done by him alone.

A common intention implies a pre-arranged plan, prior meeting of minds or prior consultation between the persons constituting the group. In Mahboob Shah v Emperor AIR 1945 PC 118 it was held that: "The section does not say "the common intentions of all" nor does it say "an intention common to all." Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone"

It is not necessary to adduce direct evidence of common intention. The common intention may be inferred from the surroundings and conduct of parties. A common intention may often be difficult to prove by way of direct evidence in practice, but it can be inferred from the circumstances of the case and the conduct of the accused [see Dato' Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232].

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 without any long interval of time between it and the doing of the act commonly intended. In such a case, common intention may be inferred from the facts and circumstances of the case and the conduct of the accused [see Namasiyiam v PP [1987] 2 MLJ 336, SC].

See the leading case on section 34 PC Farose bin Tamure Mohamad Khan v Public Prosecutor and other appeals [2016] 6 MLJ 277 ; [2016] 9 CLJ 769.

In this case there was no evidence led that both the accused had a common intention to commit trafficking nor can such an inference be drawn from the surrounding circumstances.

(vii)The failure of the IO to investigate the case fairly

A sound and thorough investigation rests on three main foundations, namely diligence, fairness and independence. In this case SP5 failed to investigate and ascertain the following as stated in their submission: i. Tidak menyiasat mengenai sumber maklumat ii. Tidak menyiasat mengenai rakaman CCTV tempat kejadian iii. Tidak menyiasat mengenai pemilik motosikal (yang dikatakan OKT1 mengambil plastik barang kes di dalam raga) iv. Tidak menyiasat telefon bimbit OKT-OKT v. Tidak menyiasat mengenai individu ketiga di dalam rakaman CCTV vi. Tidak menyiasat fakta bahawa SP2 tidak menunjukkan barang kes kepada OKT-OKT vii. Tidak menyiasat fakta bahawa SP2 tidak memperkenal diri sebelum OKT-OKT ditangkap viii. Tidak membuat sebarang ujian jap jari/ dusting print ke atas barang kes ix. Tidak menyiasat mengenai apakah peranan orang ketiga di dalam rakaman CCTV x. Tidak menyiasat saksi mata yang melihat kejadian tangkapan xi. Tidak menyiasat pergerakan OKT1 dan OKT2 sebelum ditangkap

In the Federal Court case of Lee Kwan Woh v PP [2009] 5 MLJ 301, the Federal Court speaking through Gopal Sri Ram held: [21] The appellant's case as put to the relevant prosecution witnesses was that he was not apprehended the moment he emerged from the car. He was arrested in the compound of house No. 52. PW3, the investigation officer confirmed under cross examination that the appellant had, during investigations, informed her of this fact. She however failed to investigate this allegation at all. This is a serious omission. In Public Prosecutor v. Lim Ah Bek [1989] 2 CLJ 1090;; [1989] 2 CLJ (Rep) 391 there was a doubt whether the investigating officer in that case had investigated the defence of alibi mentioned by the accused in his cautioned statement. Based on this possible omission, Gunn Chit Tuan J (as he then was) drew an inference in favour of the accused in that case. The present case is much stronger in that there was no investigation at all. An inference in the appellant's favour ought therefore to have been drawn by the learned judge at the close of the prosecution case. Had that been done, doubt would have been cast upon the evidence of PW4 and PW8. Unfortunately this point was missed by the learned trial judge, no doubt, because of his ruling. If he had heard the submission of no case by the appellant, he may perhaps have not acted upon the evidence of these two witnesses.'

See also the Court of Appeal cases of Ghasem Gharezadehsharbiani Hassan v Public Prosecutor [2014] 5 MLJ 433, and Rahmani Ali Mohamad v Public Prosecutor[2014] 6 MLJ 525,

Finally it is pertinent to recall what was said by Justice Sharma in Public Prosecutor v Saimin & ORS [1971] 2 MLJ 16, where his lordship said : "It is the duty of the prosecution to prove the charge against the accused beyond all reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer. The proof of a case against the accused depends for its support not upon the absence or weakness of the explanation on his part but on the positive affirmative evidence of his guilt given by the prosecution."

Therefore based on what has been adumbrated above, both the accused persons were acquitted and discharged for the trafficking charge - P2. Note : This judgment is subject to correction of typographical errors, grammatical mistakes and editorial formatting, if any.

The Criminal Procedure Code: A Commentary with Appellate Practice & Procedure (3rd Ed, Sweet & Maxwell)

The Penal Code A Commentary (Sweet & Maxwell, 2023)

Public Prosecutor v Ong Cheng Heong [1998] 6 MLJ 678; [1998] 4 CLJ 209

Abdullah bin Atan v Public Prosecutor and other appeals [2020] 6 MLJ 727 FC

Ariff Arhannan bin Che Udin v Public Prosecutor [2022] 3 MLJ 157 FC

Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257

Dickson Levy a/l Maria George v Public Prosecutor [2018] MLJU 98

Goh Han Heng v Public Prosecutor [2003] SGHC 226

Kesavan Krishnan Iwn PP & Satu Lagi Rayuan [2015] 6 CLJ 163

See Kek Chuan v PP [2013] 6 MLJ 885

Yahya Hussein Mohsen Abdulrab v Public Prosecutor [2021] 5 MLJ 811

Rosli bin Yusof v Public Prosecutor [2021] 4 MLJ 479

Public Prosecutor v Asnawi bin Yusuf [2011] 4 MLJ 16

Masoumeh Gholami Khaveh v Pendakwa Raya [2013] MLJU 461

Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433

Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137

Wan Yuriilhami bin Wan Yaacob Iwn Pendakwa Raya dan satu lagi rayuan [2009] 2 MLJ 383

Kamalahassan a/l Latchimanan v Pendakwa Raya [2008] 3 MLJ 810

Romiamora Bin Amir v Pendakwa Raya [2010] MLJU 1288

Mahboob Shah v Emperor AIR 1945 PC 118

Dato' Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232

Namasiyiam v PP [1987] 2 MLJ 336, SC

Farose bin Tamure Mohamad Khan v Public Prosecutor and other appeals [2016] 6 MLJ 277 ; [2016] 9 CLJ 769

Lee Kwan Woh v PP [2009] 5 MLJ 301

Ghasem Gharezadehsharbiani Hassan v Public Prosecutor [2014] 5 MLJ 433

Rahmani Ali Mohamad v Public Prosecutor[2014] 6 MLJ 525.

Public Prosecutor v Saimin & ORS [1971] 2 MLJ 16