YUARAJA A/L RAJAGOPAL v Pendakwa Raya (W-05(M)-521-12/2021)

Muralikrishna A/L Nokiah

Yuaraja A/L Rajagopal

Arunasalam A/L Supumaran

Sunder A/L Supumaran

Mohanambal A/P Pushpanathan (HEARD TOGETHER WITH)

YUARAJA A/L RAJAGOPAL

ARUNASALAM A/L SUPUMARAN (NRIC NO.: 970326-14-6649) …APPELLANTS PUBLIC PROSECUTOR …RESPONDENT [In the Matter of The High Court of Malaya At Kuala Lumpur

Muralikrishna A/L Nokiah

Yuaraja A/L Rajagopal

Arunasalam A/L Supumaran

Sunder A/L Supumaran

Mohanambal A/P Pushpanathan (HEARD TOGETHER WITH) CRIMINAL APPEAL NO.: W-05(LB)-309-09/2021 PUBLIC PROSECUTOR …APPELLANT ARUNASALAM A/L SUPUMARAN (NRIC NO.: 970326-14-6649) …RESPONDENT [In the Matter of The High Court of Malaya At Kuala Lumpur

Yuaraja A/L Rajagopal

Arunasalam A/L Supumaran

Sunder A/L Supumaran

Mohanambal A/P Pushpanathan CORAM AZMAN BIN ABDULLAH, JCA MOHAMED ZAINI BIN MAZLAN, JCA NOORIN BINTI BADARUDDIN, JCA JUDGMENT INTRODUCTION [1] These appeals arise from two criminal trials and were heard together before the High Court at Kuala Lumpur, namely Criminal Trial No. WA-45A-17-05/2019 (referred to as the “First Case” by the learned High Court Judge) and Criminal Trial No. WA-45A-18-05/2019 (referred to as the “Second Case” by the learned High Court Judge). Appeal No. W-05(M)-521-12/2021 and Appeal No. W-05(M)-2- 01/2022 [2] Appeal No. W-05(M)-521-12/2021 and Appeal No. W-05(M)-2- 01/2022 emanate from Criminal Trial No. WA-45A-17-05/2019 (“First Case”) and are directed against the whole decision of the High Court dated 22 December 2021. [3] The Appellants were jointly charged before the High Court with the following offence: “Pertuduhan Terpinda Bahawa kamu bersama-sama pada 14.01.2019 jam lebih kurang 7:05 petang di kawasan tempat letak kereta Central Park, Jalan Thamby Abdullah Off Jalan Tun Sambanthan, dalam daerah Brickfields, Wilayah Persekutuan Kuala Lumpur, dengan mencapai niat bersama telah mengedar dadah berbahaya, iaitu dadah jenis Methamphetamine berat bersih 356.4 gram. Oleh itu, kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang dibaca bersama seksyen 34 Kanun Keseksaan dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” [4] At the conclusion of the trial, the learned High Court Judge found the Appellants guilty as charged, convicted them accordingly, and sentenced them to death by hanging. Aggrieved by the said decision, the Appellants appealed to this Court. [5] Upon a careful perusal of the record of appeal, consideration of the written submissions, and after hearing oral arguments of learned counsel on both sides, this Court, in respect of Appeal No. W-05(M)-521-12/2021, unanimously allowed the appeal on the ground that the convictions were unsafe. The convictions and sentences were set aside and the Appellants were discharged and acquitted. [6] Dissatisfied with the decision, the Public Prosecutor has filed an appeal to the Federal Court. [7] In contrast, in Appeal No. W-05(M)-2-01/2022, this Court affirmed the conviction and unanimously dismissed the appeal against the conviction. However, as regards sentence, the death penalty was set aside and substituted with imprisonment for life, commencing from the date of arrest, namely 14 January 2019, together with twelve strokes of the cane. [8] Being dissatisfied with the said decision, the Appellant has filed an appeal to the Federal Court against both conviction and sentence. Appeal No. W-05(LB)-309-09/2021 [9] Appeal No. W-05(LB)-309-09/2021 arises from Criminal Trial No. WA-45A-18-05/2019 and is directed against the whole decision of the High Court dated 17 August 2021. [10] The Respondent was charged before the High Court with the following offence: “Bahawa kamu bersama-sama pada 14.01.2019 jam lebih kurang 7:05 petang di kawasan tempat letak kereta Central Park, Jalan Thamby Abdullah Off Jalan Tun Sambanthan, dalam daerah Brickfields, Wilayah Persekutuan Kuala Lumpur, dengan mencapai niat bersama telah mengedar dadah berbahaya, iaitu dadah jenis Methamphetamine berat bersih 1,242.0 gram. Oleh itu, kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” [11] At the close of the prosecution’s case, the learned High Court Judge acquitted and discharged the Respondent without calling for his defence. The Public Prosecutor appealed against that decision. [12] After hearing the appeal, this Court unanimously dismissed the Prosecution’s appeal and affirmed the order of acquittal and discharge. No further appeal was filed to the Federal Court in respect of that decision. [13] In the circumstances, these grounds of judgment will not address the issues arising from Appeal No. W-05(LB)-309- 09/2021, but will be confined to the appeals in which further appeals have been lodged before the Federal Court. [14] For ease of reference the Appellants will be referred to as they were in the High Court: i. Muralikrishna a/l Nokiah (Appellant in Criminal Appeal No.: W-05(M)-2-01/2022) as the “1st accused”; ii. Yuaraja a/l Rajagopal (Appellant in Criminal Appeal No.: W-05(M)-521-12/2021) as the “2nd accused”; and iii. Arunasalam a/l Supumaran (Appellant in Criminal Appeal No.: W-05(M)-521-12/2021) as the “3rd accused”. Prosecution’s Case [15] The factual matrix culminating in the arrest, upon which the prosecution’s case was premised, was clearly articulated by the learned High Court Judge in the judgment and is reproduced herein: “The case for the prosecution [4] Two agent provocateurs were involved. They were Inspector Prabu a/l Avadiapan (PW4) (“AP1”) and Detective Corporal (W) Jayarani a/p Debarajh (PW2) (“AP2”). Two weeks prior to the arrest, AP1 began his move to set the anti-drug operations in motion. AP1 went to an entertainment centre in Brickfields and met an Indian male known as “Ayya”. AP1 said he had information that “Ayya” was a dealer. [5] At the entertainment centre in Brickfields, AP1 spread the word to “Ayya” that he was looking for “Syabu” in kilograms and he was willing to pay in cash. AP1 gave his mobile number (010 – 319 3797) to “Ayya”. AP1 told “Ayya” that anyone who can sell “Syabu” in kilograms can contact him directly on the given number. In this charade, AP1 pretended to be “Kumar”. [6] On 14.01.2019 at about 2:10 pm AP1 received a telephone call. That call came from a mobile number 012 – 231 7700. The caller said he got AP1’s telephone number from “Ayya”. In the telephone conversation, the caller offered to supply AP1 with “Syabu”. The caller told AP1 that the price for 1 kg of “Syabu” is RM39,000.00. A deal was then set between AP1 and the caller for the drug transaction to be done later on the same day at a parking area in Brickfields. It is the prosecution’s case that the caller was the 1st accused. [7] At about 2:20 pm AP1 informed his superior, ASP Shaiful Hezreen bin Shahriman (PW1), about the impending drug deal. PW1 then grouped up a team of police officers and held a briefing to plan the course of the anti-drug operations. PW2 was instructed to act as AP2 to support AP1. AP2 was given instructions as to certain gesticulation which AP2 must make as a signal to set the team in motion to make the arrest. At about 4:03 pm AP1 called up the mobile number 012 – 231 7700 again to confirm the price of the “Syabu” and their rendezvous point. [8] PW1 and his team together with AP1 and AP2 then went to the Central Carpark at Brickfields which has been agreed to be the rendezvous point for the drug deal. They reached there at about 4:20 pm, took their respective positions and began the waiting game. At about 5:10 pm AP1 said the 1st accused approached and introduced himself as the one AP1 had previously spoken to. The 1st accused then asked AP1 whether he knew the price for 1 kg of “Syabu”. AP1 answered in the affirmative and said that it was RM39,000.00 as they have agreed upon earlier. Then the 1st accused made a telephone call to someone. After the 1st accused ended the telephone call, he turned to AP1 and said that the “package” was still en route. [9] At about 7:05 pm a blue Perodua Myvi bearing registration number WC 7643 C (“Blue Myvi”) was seen entering the Central Carpark and parked behind AP1’s car. The 2nd, 3rd, 4th and 5th accused were in the Blue Myvi. The 1st accused was seen moving towards the front passenger door of the Blue Myvi and spoke to the 2nd accused who was at the driver’s seat. The 2nd accused was seen looking back towards the rear passenger as though saying something to the 4th accused. The 4th accused was seen bending down and then handing over something to the 2nd accused. Through the side window of the front passenger door the 2nd accused in turn gave to the 1st accused the thing that was handed over by the 4th accused. It appeared to be a black package (Exhibit P26). [10] The 1st accused then went over to AP1’s car and got in with the black package through the right passenger door. In the car, AP1 asked the 1st accused as to who will be counting the money purportedly meant for the drug deal transaction. The 1st accused then was seen getting out of AP1’s car, taking with him the black package, and had a chat with the 2nd accused. Later, the 3rd accused was seen coming out of the Blue Myvi and went into AP1’s car and took a seat at the passenger side behind AP2. The 1st accused in turn took a seat at the passenger side behind AP1. [11] In the car, the 1st accused gave the black package to AP1. In the presence of the 1st and 3rd accused, AP1 and AP2 opened the black package. According to AP1, the black package contained a white paper package bound with a brown cellophane tape. When AP1 opened up the white paper package, there was a transparent plastic package containing substance suspected to be “Syabu”. Once AP1 completed “inspecting” the package, the 3rd accused asked AP1 for the money so that it could be counted. [12] Hearing the request for money from the 3rd accused, AP1 asked AP2 to take the money from the boot. AP2 then got out of the car and opened up the boot in a pretence to get the money for the drug deal whereas that was the gesticulation for the raiding party to move in to make the arrest. Upon seeing AP2 opening up the boot, PW1 and the raiding team closed in towards the car to effect arrest. They drove their cars towards the Blue Myvi and had it blocked. PW1 immediately got out and turned off the engine of the Blue Myvi. PW1 introduced himself as a police officer and directed all the occupants to get out of the car. [13] Upon seeing this, the 1st and 3rd accused quickly opened the door and attempted to flee the scene but they were swiftly arrested by the raiding team. Bodily searches were carried out on all the accused but nothing incriminating was found. PW1 then proceeded to search the Blue Myvi. On the footwell of the rear left passenger side, PW1 found a colourful plastic bag (Exhibit P30) with the word “LOVE” written on it. [14] On inspection, in the colourful plastic bag PW1 found 3 white paper packages bound with brown cellophane tape. When PW1 opened the white paper packages, he found each of them contained substances suspected to be Methamphetamine. Meanwhile, AP1 had held unto the black package he got from the 1st accused. After PW1 completed his search of the Blue Myvi, AP1 handed over the black package to PW1. [15] PW1 then brought all the accused together with the exhibits to the office of the Narcotics Crime Investigation Department at the Kuala Lumpur Contingent Police Headquarters. The exhibits were in the custody of PW1. There, PW1 weighed the exhibits to get their gross weight and marked all the exhibits. PW1 also prepared the search list and the form for the handing over of exhibits. [16] During further examination by the learned DPP, AP1 said interrogations were done after the arrest. As a result of the interrogation, PW1 and a few other police officers together with the 2nd accused went to Bukit Tinggi, Pahang for follow-up action. At Bukit Tinggi, there was a hot pursuit of a vehicle but the police team did not manage to catch up. No arrest or seizure was made at Bukit Tinggi. The police team returned in the early morning of 15.01.2019. [17] According to the chemist, Mohd Najif bin Ab Rahman (PW3), on 18.01.2019 he received from the investigating officer (PW6) a box marked “KI 1” (Exhibit P25) together with the requisition for analysis form in the manner of the prescribed Form 31 (Exhibit D40). The box was sealed with the “POLIS DIRAJA MALAYSIA 934” seal. PW3 then assigned the box with the laboratory number 19 – FR – B – 01551 and issued to PW6 an acknowledgement receipt (Exhibit P11). [18] When he examined the box, PW3 said it contained -

a black package marked “J” (Exhibit P26), and

a colourful plastic bag marked “KI” (Exhibit P30) with the word “LOVE” written on it. [19] The black package marked “J” contained a paper package marked “J1” (Exhibit P27). In the paper package, PW3 found a plastic package marked “J1A” (Exhibit P28) containing crystalline substances. In his analysis, PW3 found the crystalline substances to be Methamphetamine weighing 356.4 grammes. [20] The colourful plastic bag with the word “LOVE” written on it contained —

a paper package marked “K1” (Exhibit P31). In the paper package, there was a plastic package marked “K1A” (Exhibit P32) containing crystalline substances. In his analysis, found the crystalline substances to be Methamphetamine weighing 398.8 grammes, a. a paper package marked “K2” (Exhibit P34). In the paper package, there was a plastic package marked “K2A” (Exhibit P35) containing crystalline substances. In his analysis, found the crystalline substances to be Methamphetamine weighing 331.4 grammes, b. a paper package marked “K3” (Exhibit P37). In the paper package, there was a plastic package marked “K3A” (Exhibit P38) containing crystalline substances. In his analysis, found the crystalline substances to be Methamphetamine weighing 511.8 grammes. [21] PW3 confirms that Methamphetamine is listed in the First Schedule of the Dangerous Drugs Act 1952. The report prepared by PW3 is produced as Exhibit P12.” Summary of the High Court’s findings at the close of the prosecution’s case [16] At the close of the prosecution’s case, the learned High Court Judge found that the prosecution had succeeded in establishing a prima facie case against the 1st, 2nd and 3rd accused for the offence of trafficking in dangerous drugs. [17] The learned High Court Judge was satisfied that there was clear and cogent evidence of a negotiated sale between the agent provocateur PW4 (AP1) and the 1st accused involving 1 kilogram of “syabu” at an agreed price of RM39,000.00. The rendezvous point for the transaction was fixed at the Central Carpark in Brickfields. The evidence further established that the 1st accused delivered the impugned dangerous drugs to PW4 in the form of a black package (Exhibit P26), which ultimately contained methamphetamine weighing 356.4 grammes. [18] The learned High Court Judge held that the absence of actual payment or the non-production of the “flash roll” did not undermine the prosecution’s case. It was found as a matter of fact that no flash roll had been prepared. In any event, actual payment is not a prerequisite to prove the element of “selling” within the meaning of trafficking under section 2 of the Dangerous Drugs Act 1952 (“DDA”). The subject matter of the charge was the dangerous drugs, not the purchase money. Accordingly, the element of “selling” was held to have been prima facie established. [19] In respect of common intention, the learned High Court Judge found that the roles played by the 1st, 2nd and 3rd accused demonstrated coordinated participation in the transaction. [20] The 1st accused was directly involved in negotiating the sale, fixing the meeting point, receiving the impugned drugs from the 2nd accused and handing them over to PW4 (AP1) in furtherance of the agreed transaction. [21] The 2nd accused drove the Blue Myvi to the designated meeting point. Upon arrival, he was seen communicating with the 4th accused seated at the rear of the vehicle, receiving the black package from him and passing it to the 1st accused. He remained in the vehicle thereafter. The learned Judge held that such conduct was consistent with active participation in the delivery of the drugs pursuant to the prior agreement. [22] The 3rd accused entered PW4’s (AP1) vehicle for the purpose of counting the purchase money at the request of the 1st accused, thereby playing a role in facilitating the completion of the transaction. Upon the arrival of the raiding team, both the 1st and 3rd accused attempted to flee. The learned High Court Judge considered this conduct relevant under section 8 of the Evidence Act 1950, as it invited a strong inference of guilty knowledge. [23] Having regard to the totality of the evidence, the learned High Court Judge concluded that the prosecution had established the essential elements of trafficking, including the elements of selling and common intention. Consequently, the 1st, 2nd and 3rd accused were called upon to enter their defence. Summary of the High Court’s findings on the Defence [24] At the close of the defence case, the learned High Court Judge found that the defence advanced by all three accused persons failed to raise any reasonable doubt in the prosecution’s case. [25] The common defence was that the black package contained loan shark money and that none of the accused had knowledge that it contained dangerous drugs. The 1st accused claimed he was delivering money for “Ayya”, the 2nd accused asserted that he was dispatching money for “Linges”, and the 3rd accused maintained that he merely accompanied the 2nd accused and was asked to witness the counting of the money. [26] The learned High Court Judge rejected this explanation as improbable when assessed against the totality of the evidence. The Court accepted PW4’s evidence that a prior agreement had been concluded for the sale of 1 kilogram of “Syabu” at RM39,000. The rendezvous point had been fixed, and upon arrival, it was the 1st accused who approached PW4, identified himself as “Kumar”, and reconfirmed the agreed weight and price. The black package was handed over by the 1st accused, and the 3rd accused subsequently entered PW4’s (AP1) vehicle to count the money after inspection of the package. [27] The learned High Court Judge held that concealment of the drugs did not negate knowledge. Knowledge was to be inferred from the surrounding circumstances, including the prior negotiation, the conduct of the 1st accused in executing the transaction, the presence and participation of the 3rd accused, and the coordinated actions of all three accused. [28] The learned High Court Judge further found the “loan shark money” explanation inherently implausible, particularly given the risks involved in transporting and handling large sums of illegal money. The learned High Court Judge was of the view that their conduct was inconsistent with that of innocent persons. The learned High Court Judge found the contention that “Ayya” was the real trafficker was unsupported by credible evidence and immaterial, as it was the 1st accused who negotiated and effected the transaction, with the 2nd and 3rd accused acting in furtherance of their common intention. [29] Accordingly, the learned High Court Judge concluded that the defence was not probable and incapable of raising a reasonable doubt and that the prosecution had therefore proven its case against all three accused beyond a reasonable doubt. Summary of Appellants’ Contentions [30] In respect of the 1st accused, four principal grounds were advanced. It was contended that the learned High Court Judge erred: i. in failing to properly evaluate the defence that the 1st accused only had momentary custody or control of the bag containing the impugned drugs (Exhibit P26); ii. in failing to consider his assertion that he had no knowledge of the existence of the drugs therein and was unaware that the transaction involved the sale and purchase of drugs; iii. in failing to appreciate his contention that he had been entrapped by one Ayya and used as a drug mule; and iv. in failing to meticulously and comprehensively evaluate the totality of the defence evidence, thereby resulting in an insufficient judicial appreciation of the defence case. [31] In respect of the 2nd and 3rd accused, the following common grounds were raised: i. The learned High Court Judge failed to draw inference most favourable to the 2nd and 3rd accused; ii. There were material gaps in the prosecution’s case; iii. The learned High Court Judge erred in finding common intention of the accused persons; and iv. The learned High Court Judge erred in finding that the 2nd accused engaged in drug trafficking for the purpose of selling as defined under section 2 of the DDA. Findings [32] Before addressing the specific grounds advanced by the accused persons, it is apposite to restate the settled principles governing appellate intervention. While it is incumbent upon this Court to undertake a careful re-evaluation of the evidence, due weight must be accorded to the findings of fact made by the trial Judge who had the singular advantage of observing the demeanour, candour, and credibility of the witnesses. [33] Intervention is warranted only where it is demonstrated that the trial court has misdirected itself in law, failed to consider material evidence, took into account irrelevant considerations, or reached a conclusion that is plainly against the weight of the evidence. In the absence of such demonstrable error, findings of fact, particularly those hinging upon credibility, ought not to be disturbed. [34] With these guiding principles firmly in mind, we proceed to consider the grounds of appeal raised by the 1st accused. [35] It was contended on behalf of the 1st accused that his defence, consistently maintained throughout the trial, demonstrated that the true trafficker was none other than “Ayya”, whose existence was undisputed as PW4 (AP1) had met and dealt with him prior to the events leading to the arrest. The 1st accused denied having engaged in any conversation with PW4 relating to a drug transaction. According to him, the conversations conducted in Tamil between himself and PW4 (AP1) concerned only the term “Jamaan”, which he asserted simply meant “barang” (goods). It was further pointed out that PW2 testified that the term “Jamaan” could refer to money or something valuable, and was not necessarily indicative of drugs. [36] Learned counsel further emphasised that when the Blue Myvi arrived and the black bag (Exhibit P26) was handed over, the 1st accused merely informed PW4 (AP1) that “barang sudah sampai” (the goods have arrived). It was argued that he neither opened the bag nor inspected its contents after receiving it from the 2nd accused. The contents of Exhibit P26 were only examined by PW4 (AP1). As the drugs were sealed and not visible to the naked eye, it was submitted that the 1st accused could not be said to have had knowledge of the presence of drugs therein. On that premise, it was contended that the case concerned nothing more than momentary custody of Exhibit P26 without knowledge of its contents. [37] It was further argued that “Ayya”, being the alleged actual trafficker and the original target of the police operation, ought to have been called as a material witness by the prosecution. The investigating officer, it was submitted, failed to satisfactorily establish the efforts undertaken to trace or secure Ayya’s attendance. Learned counsel contended that the learned High Court Judge’s failure to compel disclosure of further information relating to Ayya amounted to a serious misdirection or, alternatively, a non-direction which deprived the Court of the opportunity to evaluate the evidence from all relevant perspectives. [38] We have given anxious consideration to the submissions advanced on behalf of the 1st accused. With respect, we find them to be devoid of merit. [39] As rightly found by the learned High Court Judge, the prosecution’s case against the 1st accused was founded on a negotiated sale to an agent provocateur, PW4 (AP1). It is a trite law that where trafficking is established through proof of a sale or negotiated sale under section 2 of the DDA, there is no necessity to separately prove possession and invoke statutory presumptions. [40] The evidence reveals that the 1st accused initiated and conducted negotiations with PW4 for the sale of 1 kilogram of “Syabu” at RM39,000.00. He agreed on the rendezvous point at the Central Carpark, Brickfields. He confirmed the agreed price and quantity. He communicated with his supplier while in PW4’s (AP1) presence. Upon the Blue Myvi’s arrival, he personally collected the black package (Exhibit P26). He entered PW4’s (AP1) vehicle and physically handed the package to PW4 (AP1) for inspection. The black package was subsequently analysed and found to contain methamphetamine weighing 356.4 grammes. It must be borne in mind that the absence of actual payment is immaterial. The offence of trafficking by way of sale is complete once there is a concluded negotiation followed by delivery in furtherance of that agreement. The learned trial High Court Judge correctly applied this principle. [41] We agree with the learned High Court Judge that the role of an agent provocateur is expressly recognised under section 40A of the DDA. The mere fact that PW4 (AP1) initiated contact does not render his evidence inadmissible or unreliable. The learned High Court Judge, who had the advantage of observing the demeanour of the witnesses, found PW4 (AP1) to be credible. His testimony was internally consistent and corroborated by the objective sequence of events: the arrival of the Blue Myvi, the handing over of the black package, and the subsequent seizure and scientific analysis. We see no reason to disturb that finding. We further observe from the evidence that, when the raiding party closed in, the 1st accused tried to escape. While fleeing is not a conclusive proof of guilt, it is a relevant conduct consistent with consciousness of guilt. The learned High Court Judge was entitled to take this into consideration as part of the totality of circumstances. [42] The attempt to cast “Ayya” as the actual trafficker is, in our view, a diversion unsupported by the evidence. While it is not disputed that PW4 (AP1) had earlier met an individual known as “Ayya”, the material events giving rise to the charge were the negotiations and delivery that occurred between PW4 (AP1) and the 1st accused. We agree with the learned High Court Judge that “Ayya” was merely the conduit through whom PW4’s (AP1) contact number was circulated. The prosecution is not duty bound to call every possible witness. An adverse inference arises only where a material witness essential to unfolding the narrative is withheld. [43] The evidence establishes that it was the 1st accused who initiated contact with PW4 (AP1) after learning that PW4 (AP1) was seeking to purchase “Syabu”. It was the 1st accused who had negotiated the price of RM39,000.00 for 1 kilogram and he was the one who had fixed and confirmed the rendezvous point with PW4 (AP1). According to PW4 (AP1) it was the 1st accused who had communicated updates regarding the arrival of the “package” and he personally retrieved the black package (Exhibit P26) from the Blue Myvi. He then entered PW4’s (AP1) vehicle and handed over the package for inspection. These were not peripheral acts. They were central and indispensable steps in the execution of the negotiated sale. [44] “Ayya” was not present during the negotiations that formed the subject of the charge. He did not participate in the delivery. His role, at its highest, was that of an intermediary through whom PW4’s (AP1) contact details were disseminated. His absence does not create a gap in the prosecution’s case. Nor was there any obligation on the trial court to compel disclosure of investigative details that were immaterial to the ingredients of the offence. [45] Even assuming that “Ayya” existed and may have been involved at an earlier stage, that fact does not exculpate the 1st accused. Criminal liability under section 39B of the DDA attaches to any person who traffics in dangerous drugs. The evidence demonstrates that the 1st accused was an active participant in the trafficking transaction. The law does not require the prosecution to identify or prosecute every participant in a criminal enterprise before securing a conviction against one who is proven to have committed the offence. [46] The submission that the Tamil term “Jamaan” merely referred to “barang” in a neutral sense cannot be viewed in isolation. Words derive meaning from context. The conversations between PW4 (AP1) and the 1st accused were not confined to a single ambiguous term. They included explicit references to “Syabu”, a quantity of 1 kilogram, a price of RM39,000.00, the quality and authenticity of the substance and assurances that the goods were “ori” and would not be rejected. [47] The learned High Court Judge correctly evaluated the totality of these conversations. To isolate one word and detach it from its surrounding circumstances is to ignore the broader evidential matrix. When the evidence is considered holistically, it is unmistakably referable to a drug transaction. [48] In respect of the alleged lack of knowledge, momentary custody and the contention that the 1st accused neither opened Exhibit P26 nor knew its contents, similarly fails upon close scrutiny. [49] First, the prosecution’s case did not depend on proving possession by inference or presumption. It was founded upon proof of a negotiated sale and delivery. The offence of trafficking by way of sale is complete once the accused, pursuant to a concluded agreement, delivers the dangerous drugs to the intended buyer. [50] Second, knowledge may be inferred from surrounding circumstances. The 1st accused negotiated the sale of 1 kilogram of “Syabu” for a specific price. He updated PW4 (AP1) regarding the arrival of the goods. Upon the arrival of the Blue Myvi, he said that the “barang sudah sampai.” He then retrieved the package and handed it to PW4 (AP1) in furtherance of the agreed transaction. In such circumstances, the suggestion that he was unaware of the contents of the package is implausible. The law does not require proof that the accused physically inspected the drugs. Knowledge may be inferred from conduct and surrounding facts. The inference drawn by the learned trial Judge was both logical and irresistible. We are therefore unable to agree that there was any misdirection or non-direction on the part of the learned trial Judge. [51] The defence of “momentary custody” is equally untenable. The handling of Exhibit P26 was not accidental or transient in a neutral sense. It was a deliberate act forming part of the execution of the negotiated sale. Even brief custody suffices where it is integral to trafficking. [52] Having re-evaluated the evidence in its entirety, we are satisfied that the learned High Court Judge meticulously considered the defence advanced by the 1st accused and gave cogent reasons for rejecting it. We find that the evidence clearly demonstrates a negotiated sale culminating in delivery. The element of “selling” within the meaning of “trafficking” under section 2 of the DDA was proven beyond reasonable doubt. The attempt to attribute culpability to “Ayya”, the reliance on semantic ambiguity, the assertion of lack of knowledge, and the invocation of momentary custody are all inconsistent with the objective evidence of a negotiated sale culminating in delivery. There was no misdirection in law, no failure to consider material evidence, and no finding against the weight of evidence. We find that the conviction of the 1st accused is safe. [53] We next address the position of the 2nd and 3rd accused. [54] The defence of the 2nd accused was raised at an early stage of the prosecution’s case. His consistent version was that he had been approached by a long-time acquaintance, one Linges, who requested his assistance to deliver what was represented to him as loan shark money, in consideration of a payment of RM150. Linges allegedly provided him with a mobile phone to facilitate further communication and instructed him to collect the package at a BHP petrol station in Bukit Tinggi, Pahang. [55] Upon arriving at the said location, the 2nd accused testified that he received a package contained in a colourful bag from two unidentified men, described as one Malay male and one Indian male. He was subsequently informed by Linges that the package contained loan shark money and was to be delivered to one Murali, the 1st accused. Linges further furnished the 2nd accused with the 1st accused’s contact number and directed him to complete the delivery accordingly. [56] Having considered the totality of the evidence, we are of the view that the failure of the prosecution to call Linges as a witness created a material lacuna in its case. Linges was not a peripheral figure. On the contrary, he was central to the 2nd accused’s narrative. If called, he would have been in a position to either confirm or refute the 2nd accused’s account that he had been instructed to deliver what he believed to be loan shark money. In the circumstances, Linges was plainly a material witness. [57] Significantly, PW4 (AP1) acknowledged that following the arrest, interrogations were conducted which led to a follow-up operation in Bukit Tinggi involving the 2nd accused. A vehicle was pursued, albeit unsuccessfully. This evidence lends some objective support to the 2nd accused’s assertion that he had indeed collected the package from two unidentified individuals at Bukit Tinggi pursuant to Linges’ instructions. Yet, no further investigation appears to have been undertaken to trace or identify these two men. [58] It is further noteworthy that the investigating officer (PW6) conceded that the 2nd accused’s telephone number had been provided to the two unidentified men for the purpose of delivery. However, no forensic examination was conducted on the 2nd accused’s mobile phone which might have revealed call logs or messages capable of corroborating or contradicting his version. Such evidence would have been highly probative in determining whether the 2nd accused was knowingly participating in a drug trafficking enterprise. [59] In these circumstances, the omission to call Linges, coupled with the investigative gaps identified above, entitles this Court to draw an adverse inference pursuant to section 114(g) of the Evidence Act 1950. We are satisfied that the 2nd accused’s defence has raised a reasonable doubt as to his knowledge of the contents of Exhibit P26 and his alleged participation in a trafficking venture. [60] We are of the considered opinion that the learned High Court Judge erred in finding that the 2nd accused shared a common intention with the 1st and 3rd accused. The learned High Court Judge found no affirmative evidence of common intention against the 4th accused beyond the mere act of handing over the black package. In our judgment, the 2nd accused’s position was not materially distinguishable. His involvement, on the prosecution’s own case, was limited to delivering a folded package, the contents of which were not visible. [61] The evidence also established that the 2nd accused did not know the 1st accused prior to their brief encounter at Brickfields. PW4’s interaction was confined to the 1st accused. There was no evidence of prior communication, pre-arrangement, or meeting of minds between the 2nd accused and the 1st accused in relation to drug trafficking. In such circumstances, it was unsafe to infer the existence of a pre-conceived common intention. [62] The learned High Court Judge’s finding of common intention was premised largely on an inference drawn from circumstantial evidence. However, as held by the Federal Court in Ong Teik Thai v Public Prosecutor [2017] 4 MLJ 421, a conviction under section 34 of the Penal Code requires a clear finding of the specific act done by the accused in furtherance of the common intention. In the present case, the “act” identified was the driving to Brickfields and the handing over of Exhibit P26. Absent proof of knowledge of the contents and absent evidence of a pre-arranged plan, such acts, without more, are insufficient to establish liability under section 34 of the Penal Code. [63] Notably, the learned High Court Judge did not make a clear and specific finding at the close of the defence case that common intention had been proved beyond reasonable doubt. This omission is significant, as common intention was an essential ingredient of the charge. In our judgment, the prosecution failed to discharge its burden in this regard, and the 2nd accused is entitled to the benefit of that doubt. [64] The defence of the 3rd accused was that he and his brother, the 4th accused, were merely accompanying the 2nd and 5th accused to Little India, Brickfields, for festive shopping in conjunction with the Ponggal celebration the following day. He maintained that his presence at the scene was incidental and that he exercised no control over the events leading to the arrest. [65] It was undisputed that the 3rd accused entered the blue Perodua Myvi driven by PW4 only upon the instructions of the 2nd accused. The prosecution relied principally on the allegation that the 3rd accused had asked to have the money counted, as indicative of his knowledge and participation. [66] However, a careful examination of the record reveals a material inconsistency between the evidence of AP2 and PW4 (AP1). AP2 asserted that the 3rd accused requested the money to be produced, whereupon she was instructed to leave the vehicle. Yet, under cross-examination, PW4 (AP1) unequivocally denied that the 3rd accused had ever asked to count or see the money. [67] This contradiction between the two principal witnesses, both present in the vehicle at the material time, casts serious doubt on the reliability of the allegation that forms the linchpin of the prosecution’s case against the 3rd accused. [68] Compounding this difficulty is the evidence of the 1st accused, who consistently maintained that he, and not the 3rd accused, had asked PW4 (AP1) to count the money. Crucially, this aspect of the 1st accused’s testimony was not challenged in cross-examination. The failure to put a contrary suggestion to a witness on a material point may, in appropriate circumstances, amount to acceptance of that evidence, as recognised in Mohamad Fauzi Ridzwan & Anor v PP [2006] 2 MLJ 15. [69] In our view, the learned High Court Judge ought to have drawn the inference that it was the 1st accused who requested the counting of the money. Once that is so, the sole conduct relied upon to implicate the 3rd accused is neutralised. [70] The ultimate question is whether the 3rd accused had knowledge that the black bag contained drugs. The prosecution’s evidence established that he neither possessed nor handled the bag. He had no custody or control over it. At its highest, the prosecution’s case gives rise to suspicion. But as emphatically stated by the Federal Court in Dato’ Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232, suspicion, however grave, can never substitute proof. [71] There was no evidence of prior acquaintance between the 3rd accused and the 1st accused. There was no evidence of negotiation, planning, or concerted action. The prosecution failed to establish any pre-arranged plan or meeting of the minds. The 3rd accused’s mere presence, coupled with his compliance with the 2nd accused’s instruction to enter the vehicle, is insufficient to establish common intention. [72] Further, no forensic examination was conducted on the 3rd accused’s mobile phone, which was not even seized. If there had been a pre-arranged plan, such evidence might reasonably have been expected to surface. The fact that only the 2nd accused was taken to Bukit Tinggi for follow-up investigation further underscores the absence of evidence implicating the 3rd accused in any coordinated venture. [73] Drawing the inference most favourable to the accused, as we are bound to do where doubt persists, we find that the essential element of knowledge was not proved beyond a reasonable doubt. Accordingly, the finding of common intention against the 3rd accused cannot be sustained. For the foregoing reasons, we are satisfied that the convictions of the 2nd and 3rd accused are unsafe and cannot stand. Conclusion [74] In the final analysis, and guided by the settled principles governing appellate interference, we are satisfied that no error has been demonstrated in respect of the 1st accused’s conviction. The learned High Court Judge had properly directed himself on the law, meticulously evaluated the entirety of the evidence, and gave cogent and sustainable reasons for rejecting the defence. Upon our own careful re-appraisal of the record, we are satisfied that the prosecution had proved beyond reasonable doubt a negotiated sale culminating in delivery, thereby establishing the offence of trafficking within the meaning of section 2 of the DDA. The conviction of the 1st accused is therefore affirmed. [75] However, having regard to the prevailing sentencing framework and the circumstances of the case, we find it appropriate to interfere with the sentence imposed. The sentence of death is hereby set aside. In its place, we substitute a sentence of life imprisonment together with twelve (12) strokes of whipping. [76] In contrast, the position of the 2nd and 3rd accused stands on an entirely different footing. The cumulative effect of the prosecution’s failure to call material witnesses, the investigative gaps identified, the absence of cogent proof of knowledge, and the insufficiency of evidence establishing common intention has, in our considered judgment, given rise to reasonable doubt. The learned High Court Judge erred in drawing inferences of common intention and knowledge that were not supported by clear and compelling evidence. [77] It is trite that where such doubt persists, it must inure to the benefit of the accused. Suspicion, however strong, cannot substitute proof beyond a reasonable doubt. In the circumstances, we are constrained to hold that the convictions of the 2nd and 3rd accused are unsafe. [78] Accordingly, the appeal of the 1st accused against the conviction is dismissed, but his appeal against the sentence is allowed to the extent stated above. The appeals of the 2nd and 3rd accused are allowed. Their convictions and sentences are set aside, and they are hereby discharged and acquitted of the charge preferred against them. Dated: 10 March 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS: (W-05(M)-2-01/2022)

Afifuddin Bin Ahmad Hafifi; and

Aina Melina Binti Johan Arif Lim [Salehuddin Saidin & Assoc (Shah Alam)] Counsel for Respondent:

Faizal @ Amrin Bin Noor Hadi [Attorney General’s Chamber] W-05(M)-521-12/2021 Counsels for 1st Appellant:

N. Sivanathan; and

Sharifah Annafiza Al-Shahab [Sivanathan (Petaling Jaya)] Counsels for 2nd Appellant:

Grace Nathan; and

Eunice Ngooi [Grace S.Nathan (Petaling Jaya)] Counsel for Respondent:

Faizal @ Amrin Bin Noor Hadi [Attorney General’s Chamber] W-05(LB)-309-09/2021 Counsel for Appellant:

Faizal @ Amrin Bin Noor Hadi [Attorney General’s Chamber]

Grace Nathan; and

Eunice Ngooi [Grace S.Nathan (Petaling Jaya)]