Yusaidi Bin Mohd Yusuf v Pendakwa Raya (B-05(SH)-51-01/2024)

The High Court had convicted the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants for trafficking in 118,950.50 grams of cannabis with common intention under section 39B(1)(a) of the Dangerous Drugs Act 1952, read together with section 34 of the Penal Code.

Having convicted the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants, the High Court exercised its discretion not to impose the death sentence, and instead sentenced each of them to life imprisonment and 12 strokes of whipping.

The charge upon which the Appellants were convicted and sentenced was framed as follows: "Bahawa kamu bersama-sama pada 20 Mei 2019 jam lebih kurang 9.25 pagi bertempat di Tingkat F P24, Lot Parking No.97, di dalam bangunan Sunway Pyramid, Jalan PJS 11/15, Bandar Sunway, dalam Daerah Petaling, dalam Negeri Selangor Darul Ehsan, dalam melanjutkan niat bersama kamu telah mengedar dadah berbahaya seberat 118,950.5 gram Cannabis dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan."

The $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants' appeals were dismissed on 5 July 2025.

They have since appealed to the Federal Court against the dismissal of their appeals.

The Appellants contended that while an appellate Court does not normally interfere with findings of fact, it has a duty to step in where there are "errors of law apparent on the face of the record which results (sic) in serious and substantial miscarriage of justice to the accused..." See the decision of the Federal Court in Magendran Mohan v PP [2011] 1 CLJ 805.

The Appellants also referred to Dato' Seri Anwar Ibrahim v PP & Another Appeal [2004] 3 CLJ 737 where the Federal Court was of the view that an appellate Court has to examine the findings to ascertain whether there are substantial and compelling reasons for disagreeing with such findings, else section 87 of the Courts of Judicature Act 1964 (which allows appeals on a question of law or on a question of mixed fact and law) would be rendered meaningless. The Appellants further referred to the Federal Court's decision in Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209.

The prosecution called 10 witnesses including the raiding officer Insp Mohd Faizal bin Jamaludin (SP3) and 2 other members of the raiding team, namely, Sjn Guna Changran a/l Guna Sekar (SP6), and L/Kpl Emaludin bin Harisudin (SP10). Also called were the chemist Dr Saravana Kumar a/l Jayaram (SP2) and the investigating officer, Insp Syarifah Liyana binti Syed Sadair (SP7) who will also be referred to as the IO.

On 20 May 2019, SP3 and his raiding team, acting on a tip-off, went in 2 cars and arrived by the roadside near Sunway Pyramid at about 7.05 am. On arrival, SP3 and his men carried out surveillance.

At about 9.05am, SP3 observed a silver Toyota Vios bearing the registration plate WB 1420 P whereupon they tailed the car to the parking area near Sunway Pyramid. SP3 instructed the raiding team in the other car to stop the Toyota Vios as it passed the barrier into the parking lot area. On questioning the persons in the car, SP3 ascertained that the $ 1^{\mathrm{st}} $ Appellant was the driver and the $ 2^{\mathrm{nd}} $ Appellant was the passenger in the front seat. A physical examination of the Appellants did not reveal any incriminating items.

SP3 then checked the car, and saw a piece of cloth covering the rear passenger seat. In SP3's words vide his witness statement, paragraph 7: "Saya terusnya telah mengalihkan kain yang menutupi tempat duduk bahagian belakang kereta tersebut dan mendapati terdapat (2) bungkusan plastik warna hitam dan (1) plastik warna ungu. Pemeriksaan saya mendapati salah satu bungkusan plastik hitam tersebut terbuka dan saya dapat melihat beberapa bungkusan ketulan mampat berwarna keemasan yang saya syaki mengandungi dadah Ganja. Saya kemudian menjalankan pemeriksaan di bahagian boot kereta dan telah menemui (2) bungkusan plastik berwarna hitam."

The $ 1^{\mathrm{st}} $ Appellant and SP3, together with the case exhibits, were driven by D/KpI Abdullah in the Toyota Vios to the Bukit Puchong police station, while the $ 2^{\mathrm{nd}} $ Appellant was also taken to the same place by other members of the raiding team.

At the police station, SP3 issued a seizure list (P20) and made markings on the exhibits seized, before handing them over to the IO, SP7, at about 2.40 pm that day. Firecrackers found together with the drugs on the rear passenger seat were also seized.

To evidence the journey of the case exhibits, the handover list (P23) was signed by both SP3 and SP7.

SP3 also lodged a police report (P27) on the arrests and seizure of the case exhibits.

SP7 caused a fingerprint lifting exercise to be carried out, but the results were negative. SP5 took photographs of the Toyota Vios car, as well as the case exhibits.

The drug exhibits were sent to the Jabatan Kimia for analysis the day after the arrests and seizures, that is, on 21 May 2019, at about 3.30 pm, following which a chemist report (P19) was prepared by SP2.

It is well-established that in a case under section 39B(1)(a) of the Dangerous Drugs Act 1952, the prosecution must establish beyond reasonable doubt: -

the identity and weight of the drugs;

(ii) the accused persons were in possession of the drugs; and

(iii) they were trafficking the drugs.

At the close of the prosecution's case, both Appellants did not take issue with or dispute the evidence of SP2 as to the identity and weight of the subject drugs, viz, 118,950.50 grams of cannabis.

While the identity and weight of the drugs listed in the First Schedule of the Dangerous Drugs Act 1952 were taken as proved, considering SP2's credentials and experience, the tests that were conducted, and the undisputed chemist report marked as P19, the Appellants argued that the essential elements of possession and trafficking were not proved beyond reasonable doubt.

In order to prove possession, the prosecution has "to establish that: (a) the person had knowledge of the drugs; and (b) that the person had some form of control or custody of the drugs. To prove either of these two requirements, the prosecution may either adduce direct evidence or it may rely on the relevant presumptions under s. 37 of the DDA." See PP v. Muhamad Nasir bin Shaharudin [1992] CLJU 8; [1992] 1 LNS 8; [1994] 2 MLJ 576.

From the outset, the Appellants contended that there was no clear nexus linking them with the drugs found in the car. In elaboration, the Appellants pointed out that there was no direct evidence that they had touched or unpacked the drugs, and there is no DNA or fingerprint evidence implicating them.

Learned counsel for the Appellants cited Roslan Hanapi v PP [2015] 6 CLJ 464 where Rahman Sebli JCA (later CJSS), in delivering the judgment of the Court of Appeal, held: "Mere proximity to the bag containing the drugs cannot, by any stretch of the imagination, be equated with custody or control."

The facts in that case are, however, materially different. There, the Appellant and two others were arrested in a garage used for repairing motorcycles where a bag containing 320 bottles of heroin was found under a table. The garage was unlocked and there was no fencing. It was accessible to others.

The raiding officer had admitted that he did not know who put the bag under the table where it could not be seen, and the duration for which the bag had been placed there.

In the upshot, the Appellant could not be said to have custody or control of the bag containing the drugs, such that the presumption of knowledge could be invoked under section 37(d) of the Dangerous Drugs Act 1952.

The defence also relied on Romi Amora Amir v PP [2011] 1 CLJ 870 where the Court of Appeal held: "Unless knowledge is proved, an item however close to a person, could just be miles away."

Similarly, the material facts in that case can be distinguished. The Appellant was arrested after he got out of a taxi that he was driving. The taxi belonged to PW2 who rented it out to a friend of the Appellant (PW3). The Appellant had borrowed the taxi from PW3. The cannabis was wrapped in plastic and aluminium foil. It was in a plastic bag. It was found underneath the driver's seat.

Unlike the wrapped-up package under the driver's seat comprising 466.40 grams of cannabis in Romi (supra) which could not be seen unless one were to stoop down, the subject drugs in the instant case comprised 118,950.50 grams of cannabis, part of which was on the back seat of the vehicle, and there was a cut in a package from which a strong smell emanated.

We are mindful that the Appellants assailed SP3's testimony relating to a cut in one of the packages found on the back seat which was covered by a pink blanket/piece of cloth. It was argued that the contemporaneous document first in point of time - the seizure list (P20) which was prepared on 20 May 2019 at 10.35 am by SP3 - did not describe a tear in any of the packages. The description of the seized drugs and wrapping read: " (1) bungkusan plastik warna hitam didalamnya mengandungi (1) bungkusan plastik warna hitam dan (1) bungkusan guni warna putih tertera perkataan VHF-26 yang mengandungi (40) bungkusan berfoil warna keemasan yang berisi ketulan mampat disyaki dadah Ganja (AB: 40755 gram)." See ROA, Vol 3, pages 98-100.

The Appellants' complaint was that the cut in one of the packages was only subsequently mentioned on the same day at 1.57 pm (about 3 1/2 hours later) when SP3 lodged a police report on the arrests and stated, inter alia: "...saya menjumpai (1) helai kain selimut berwarna merah jambu serta sehelai sambungan kain pelekat menutupi bungkusan plastik warna hitam yang dalam keadaan terbuka tetapi kelihatan (1) ketulan mampat ganja yang telah dipotong bungkusannya di bahagian tempat duduk penumpang belakang." See ROA, Vol 3, page 115.

The $ 2^{\mathrm{nd}} $ Appellant also complained that, in the handover list (P23), the package A3-AB was differently described as "dipotong dan telah diambil sedikit."

We do not think that these descriptive differences of the wrapping at different times ought to exculpate the Appellants, more so when SP3 had other pressing tasks at hand such as weighing the seized drugs and marking the many packages, apart from attending to the paperwork.

Importantly, the descriptive differences do not strike at the identity and weight of the drugs which are, in any event, not disputed.

They do not negate the fact that the subject drugs were found in the Toyota Vios.

Indeed, a perusal of P23 will show that the cut package has the least quantity of cannabis among all the packages, which is consistent with the description "dipotong dan telah diambil sedikit."

Next, the photographs P32(1-20) which were taken by Kpl Mohamad Rodzaimi bin Mohd Radzi (SP5) on the same day of the arrests and seizure of the drug exhibits, that is, 20 May 2019. They were taken on the instructions of the IO, SP7. The photographs, at pages 122-123 of ROA, Vol 3, evidence the cut in the package.

On the evidence, there can thus be no mistake as to the cut in the package A3, and the resultant smell of the cannabis as testified by SP3: "Bau di bahagian penumpang belakang baunya agak kuat, di boot berbau tetapi tidak berapa kuat."

The defence alluded to a frame-up by the police by referring to Kesavan Krishnan v PP & Another Appeal [2015] 6 CLJ 163 where this Court held: "The legal proposition that the evidence of police witnesses shall be prima facie accepted by the court cannot be applied universally without exception. It depends on the facts and circumstances that existed in a particular case."

As correctly observed by the HCJ, there is no evidence that the prosecution witnesses knew the Appellants prior to their arrest.

On the trial evidence, there was no discernible motive or reason for the police to frame the Appellants.

On that note, reference may be made to Dickson Levy a/l Maria George v. Public Prosecutor [2018] CLJU 135; [2018] CLJU 135; [2018] 1 LNS 135; [2018] MLJU 98, where the Court of Appeal, citing the Singapore case of Goh Han Heng v. Public Prosecutor [2003] 4 SLR 374, was of the view that: "the accused must adduce sufficient evidence of this motive so as to raise a reasonable doubt in the prosecution's case. Only then would the burden of proof shift to the prosecution to prove that there was no such motive. To hold otherwise would mean that the prosecution would have the burden of proving a lack of motive to falsely implicate the accused in literally every case, thereby practically instilling a lack of such a motive as a constituent element of every offence."

Reference may also be made to Sri Ganesh A/L Java Balan v. PP and Other Appeals [2022] 2 CLJ 546; [2021] MLJU 2642, where Ravinthran Paramaguru JCA, in delivering the judgment of the Court of Appeal, held: "Whilst we acknowledge that frame up of innocent citizens by the police cannot be discounted in some cases, the court must give weight to that defence only on credible evidence that suggests it and not on mere speculation; otherwise prosecution of criminal cases in this country would be frustrated at every turn (see PP v. Mohamed Ali [1962] CLJU 129; [1962] 1 LNS 129; [1962] 1 MLJ 257)."

Apart from attacking the credibility of the material witnesses by reference to the seizure list, the police report and the handover list as mentioned earlier, the defence also singled out SP3 for allegedly exaggerating the time within which he claimed to have arrived at the scene. The $ 1^{\mathrm{st}} $ Appellant contended that according to the CCTV recording, SP3 arrived at the scene some 30 minutes instead of 5 minutes after the Toyota Vios car was stopped. SP6 was cross-examined as to the time the briefing was given on 19 May 2019 and the time the $ 1^{\mathrm{st}} $ Appellant rented the Toyota Vios that day, and he was pressed on the type of car that was used to tail the Toyota Vios, but the outcome of the case does not turn on the answers given thereto.

On any view, the fact remains that the Appellants were arrested and the drugs seized from the Toyota Vios on 20 May 2019 whereas, as pointed out by the HCJ, the witnesses only started giving evidence in February 2023. With that lapse of time, the recollection of the witnesses cannot be expected to be impeccable.

As was held in De Silva v PP [1964] CLJU 32 by Gill J (as His Lordship then was): "Discrepancies and contradictions there will always be in any case. In considering them what the Court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence worthless and untrustworthy."

In Pie Bin Chin v PP [1983] CLJU 70, Wan Yahya J (as His Lordship then was) agreed with the Sessions Court Judge's findings not only because the trial Judge had the audio-visual advantage of observing the witnesses but also because "no witness of truth can account for the details of events which had transpired some 17 months previously with precision." It was further held that " (i)t is only when a witness's evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded."

Applying these principles to the instant case, it cannot be said that the evidence of SP3 or the other prosecution witnesses were wanting in material aspects such that their evidence is to be rejected.

The Appellants were the only persons in the Toyota Vios (supported by the CCTV recordings) which had been rented by the 1 $ ^{st} $ Appellant, the drugs on the back seat were covered by a blanket, and there was a cut in one of the packages which made the contents visible. The large quantity of the cannabis on the back seat and in the boot was another factor which led the HCJ to find that the prosecution had made out a prima facie case, with common intention, against the Appellants.

It may be added that SP3 had testified that there was a smell of the drugs.

The Appellants contend that the HCJ erred in holding that the prosecution had succeeded in establishing "pengetahuan secara terus kedua-dua tertuduh berkenaan dadah tersebut" and at the same time called for their defence on the basis of presumed knowledge. See GOJ, paragraphs 43 and 76.

We find that the HCJ did not invoke double presumptions of knowledge and trafficking. See the decision of the Federal Court in Jorge Crespo Gomez v PP [2020] 8 CLJ 292.

At the close of the prosecution's case, the HCJ in fact held: "Mahkamah berpuas hati bahawa Pihak Pendakwaan telah berjaya membuktikan kes prima facie seperti mana pertuduhan di mana elemen-elemen yang diperlukan telah berjaya dibuktikan. Dadah dadah yang dirampas adalah merupakan dadah berbahaya seperti mana di bawah Jadual Pertama Akta Dadah Berbahaya 1952. Kedua-dua OKT mempunyai kawalan dan pengetahuan terhadap dadah-dadah tersebut. Kedua-dua OKT telah mengedar dadah tersebut seperti mana definisi di bawah seksyen 2 Akta Dadah Berbahaya 1952 apabila ia dibawa di dalam kereta dengan jumlah yang banyak. Mahkamah memanggil kedua-dua OKT untuk membela diri dengan menggunapakai anggapan di bawah seksyen 37(d) Akta Dadah Berbahaya 1952 dibaca bersama seksyen 2 Akta tersebut untuk pengedaran."

It was thus clear to the Appellants that they had to rebut the presumption of knowledge under section 37(d) of the Dangerous Drugs Act 1952 on a balance of probabilities, and to cast reasonable doubt on the prosecution's case in other material aspects including the acts of trafficking defined under section 2 of the Dangerous Drugs Act 1952.

There was no prejudice to the Appellants as they knew the standard of proof applicable to the element of knowledge and the element of trafficking.

At the end of the trial, the HCJ also did not invoke double presumptions.

Consistent with his decision at the end of the prosecution's case, the HCJ held that both the Appellants had failed to rebut the presumption of knowledge under section 37(d) on a balance of probabilities, and that they had a common intention to traffic the drugs under section 2 as they were transporting the drugs in the Toyota Vios. See GOJ, paragraphs 93 and 94. The HCJ did not invoke the presumption of trafficking in convicting the Appellants.

The Appellants ran the defence of innocent carrier.

According to the $ 1^{\mathrm{st}} $ Appellant, since he had intended to report for work as a healthcare assistant at Hospital Bahagia Ulu Kinta on 20 May 2019 which was around Hari Raya Aidilfitri, he had rented the Toyota Vios from a company in Petaling Jaya in the evening of 19 May 2019, to make the trip to Ipoh which was also intended as a family homecoming.

On 20 May 2019, at about 6 am, the $ 1^{\mathrm{st}} $ Appellant received a call from the $ 2^{\mathrm{nd}} $ Appellant asking for assistance to send his mother to the Sungai Buloh Hospital as the $ 2^{\mathrm{nd}} $ Appellant's car had broken down. The $ 1^{\mathrm{st}} $ Appellant then informed his wife of the $ 2^{\mathrm{nd}} $ Appellant's request. She told him to help the $ 2^{\mathrm{nd}} $ Appellant before they proceeded to Ipoh as planned.

He then proceeded to fetch the $ 2^{\mathrm{nd}} $ Appellant as well as his mother and sister from his house. After dropping the $ 2^{\mathrm{nd}} $ Appellant with his mother and sister at the Sungai Buloh Hospital, the $ 1^{\mathrm{st}} $ Appellant waited. The $ 2^{\mathrm{nd}} $ Appellant was told that his mother might have to stay overnight at the hospital, and he then requested the $ 1^{\mathrm{st}} $ Appellant to drive back to collect his mother's belongings.

While being driven by the $ 1^{\mathrm{st}} $ Appellant en route to the $ 2^{\mathrm{nd}} $ Appellant's house to collect his mother's belongings, the $ 2^{\mathrm{nd}} $ Appellant said he received a call from Affendy (also known as Eddy) a mutual friend and neighbour who played futsal with them.

Eddy told the $ 2^{\mathrm{nd}} $ Appellant that his car had broken down near Petronas NKVE Subang. Since the location was along the way to the $ 2^{\mathrm{nd}} $ Appellant's house, they agreed to help Eddy who they knew as a freelancer and supplier of firecrackers.

At about 8.50 am, after the toll plaza at Subang, the Appellants saw a stationary Proton Satria Neo car by the side of Petronas NKVE Subang, with the car boot open. Eddy was there with his friend Roy.

After the Appellants got out of the Toyota Vios, Eddy introduced his friend Roy to them. The Appellants averred that they also sighted a worker with a name tag inscribed with the name "Adi."

Eddy asked the Appellants if they could help to deliver firecrackers to his buyer at Sunway Pyramid. They agreed since they knew him.

The Appellants gave evidence that they saw Eddy and Roy picking up black plastic bags, some of which they saw contained firecrackers, and placing them on the back seat and in the boot of the Toyota Vios.

Then the tow truck came. Eddy told them that he needed to attend to his car, and asked Roy to go with the Appellants to Sunway Pyramid since the transaction would be handled by Roy.

According to the Appellants, they sat in the front of the Toyota Vios while Roy sat on the left side of the rear passenger seat in the drive to Sunway Pyramid.

When they arrived at Sunway Pyramid at about 9.15 am, Roy asked the 1 $ ^{st} $ Appellant to drop him off at the entrance of CP4 to meet Eddy's customer and asked them to wait for him at the parking lot near the main entrance of the mall.

The $ 1^{\mathrm{st}} $ Appellant parked the Toyota Vios at the spot as directed by Roy. The Appellants got out of the car, to wait for Roy.

About 5 minutes later, a four-wheel drive vehicle stopped in front of the Toyota Vios and an Indian man (SP6) and several men went towards the Appellants pointing pistols. At this juncture, if the Appellants' narrative is anything to go by, the submission that they did not attempt to flee and were therefore innocent has to be given short shrift.

They were surrounded by armed policemen and taken by surprise, so any attempt to escape would be futile and cannot count as exculpatory conduct. See Teh Hock Leong v PP [2010] 1 MLJ 741.

The Indian man (SP6) asked "Siapa Eddy? Siapa Roy?". The Appellants then identified themselves, with the $ 1^{\mathrm{st}} $ Appellant telling SP6: "Roy sudah turun di pintu masuk mall untuk berjumpa dengan pelanggannya."

The Appellants were asked what they were carrying and answered "itu barang mercun."

They were then detained and taken to the Bukit Puchong police station. They claimed the Toyota Vios was subjected to a further examination in their absence. They also claimed that the police showed them a gold colour package which had been cut and was told the contents were suspected to be ganja. They explained that they only knew the goods in the Toyota Vios were firecrackers which Eddy had asked them to bring to Sunay Pyramid for his customer. They denied knowledge of the drugs in the packages.

While the defence of innocent carrier had been put to SP3 when he was cross-examined, he denied that he was informed by the Appellants that Eddy had asked for help concerning his broken-down Proton Satria Neo car at the Petronas station at Subang Jaya, that they were asked by Eddy to bring firecrackers to his customer at Sunway Pyramid, and that Roy would accompany them.

It was also put to SP3 that Affendy had been arrested by the police in April 2020. SP3 was not pressed when he answered that he did not know of such arrest.

As for SP6, he denied he had asked: "siapa Roy, siapa Affendy?"

SP7, the IO, gave evidence that, from her investigations, there was no one else apart from the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants in the Toyota Vios. Similarly, SP7 disagreed that Eddy and Roy had asked the Appellants to bring firecrackers to Sunway Pyramid for a customer.

The HCJ, who had the advantage of observing the witnesses, disbelieved the Appellants' narrative that Eddy and Roy asked them to help send firecrackers to a customer at Sunway Pyramid.

The HCJ noted that Roy was supposed to wait near the main entrance of the mall and Eddy could still be at the nearby Petronas station but the Appellants did not highlight the whereabouts of these persons to the police.

The HCJ also noted that there was no evidence that SD5 went to the Sungai Buloh Hospital with the Appellants where the $ 2^{\mathrm{nd}} $ Appellant's mother had been allegedly dropped off. Since SP7 was extensively cross-examined as to the whereabouts of the Appellants in the early morning of 20 May 2019, including the $ 2^{\mathrm{nd}} $ Appellant's request to send his mother to the Sungai Buloh Hospital for treatment which prospectively warranted an overnight stay, no documentation was adduced from the hospital by the $ 2^{\mathrm{nd}} $ Appellant to show that he was not in a common venture to traffic the cannabis with the $ 1^{\mathrm{st}} $ Appellant, but was only in the vehicle to send his mother to the hospital and to collect her belongings in case she needed to stay at the hospital.

On a related note, it seems rather incredulous that the Appellants did not mind sending Roy to Sunway Pyramid with "firecrackers" to be delivered to a customer, considering that the $ 1^{\mathrm{st}} $ Appellant's wife and family were waiting for their trip to Ipoh and the $ 2^{\mathrm{nd}} $ Appellant's mother was allegedly at the Sungai Buloh Hospital.

It bears repeating that the burden of rebutting the presumption of knowledge on a balance of probabilities was on the Appellants. See the Evidence Act 1950, section 105, and PP v Yuvaraj [1969] CLJU 116.

The absence of the Appellants' fingerprints or DNA on any of the packages does not per se exculpate them. Such evidence is useful when identity is in doubt. Here, there is no doubt about the identity of the driver and the passenger who were the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants respectively.

As succinctly explained by Nordin Hassan JCA (as His Lordship then was) in Mahendran Arivalan v PP [2020] CLJU 1278: "...it is trite that forensic evidence including DNA or fingerprints only serves as corroborative evidence. It certainly assist(s) the prosecution to establish its case beyond reasonable doubt as required under the law. However, the absence of forensic evidence does not mean that the prosecution case must collapse if there are other cogent evidence to establish its case in particular direct evidence such as in the present case."

Both Appellants claimed to have known Affendy/Eddy for some 8 years and to have played futsal together. Yet they did not furnish his full name, photograph, or mobile telephone number. The $ 2^{\mathrm{nd}} $ Appellant mentioned that Eddy stayed at Flora Damansara but did not venture to provide his full address.

The HCJ concluded that the testimony by ASP Nurul Hafiz Bin Mohamad (SD3) on the arrest of one Affendy bin Ibrahim and one Aznor bin Abdul Aziz (for which they were charged, with the trial yet to commence) was unrelated to the present case. In respect of the testimony of the $ 2^{\mathrm{nd}} $ Appellant's mother (SD5), the HCJ noted that there was no supporting evidence of her admission to the Sungai Buloh Hospital.

The HCJ found that the credibility of Asmahadi bin Noor Azman (SD4) - an employee at the Petronas station who was said to have helped Eddy with his broken-down car questionable because his presence at that time was not made known to the police, and he apparently only got to know of the case 2 to 3 months before the trial started.

All that said, even if SD5 had been sent to the hospital and even if Affendy existed, it is to be noted that SD4 claimed that both the Appellants had also carried the black plastic bags into the Toyota Vios despite their denials that they had done so. The relevant and incriminating evidence-in-chief went as follows: S : Masa kamu kata Eddy dan kawan dia angkat plastik hitam dan mercun panjang daripada kereta Satria Neo masuk ke dalam kereta Toyota Vios, adakah dua orang lelaki daripada yang dalam kereta Vios itu ada membantu angkat plastik hitam itu? J : Ada membantu, sekadar angkat ke kereta Vios. S: Siapa yang angkat? J: Eddy, kawan dia dan dua lagi. S : Itu yang kamu nampak? J: Itu yang saya nampak.

Notably, SD4 answered in the affirmative when cross-examined: "Kalau ikutkan ada Eddy, kawan Eddy dan dua orang lagi, adakah mereka semua ini terlibat dalam mengangkat barang dalam kereta Toyota Vios itu."

SD4's incriminating examination-in-chief and cross-examination testimony was not repaired or rectified in reexamination. It has to be borne in mind that both Appellants had denied handling the black plastic bags, but their evidence was contradicted by SD4, if at all his evidence as to the events on 20 May 2019 is to be believed.

Although the HCJ did not consider those particular aspects of evidence, it is well-established that an appellate Court can and ought to review and evaluate the evidence which was not considered. An appellate Court can, in appropriate cases, act upon its own view of the conflicting evidence, or take account of material circumstances or probabilities. See the decision of the Supreme Court in Yusoff bin Kassim v PP [1992] 3 CLJ 1535.

In any case, the conviction cannot be said to be unsafe as there was a cut in package A3 which was visible though there was an attempt to conceal the cannabis with the pink blanket, and the smell of the cannabis would have raised reasonable grounds for suspicion and put the Appellants on inquiry but for their wilful blindness. See the decision of the Federal Court in PP v Herlina Purnama Sari [2016] CLJU 1855.

Unlike the factual matrix in Roslan (supra) and Romi (supra) where others had access to the garage and taxi, by the very nature of the defence of innocent carrier, the Appellants effectively admitted they carried the subject drugs, albeit without knowledge of their nature, which defence is unsustainable. The HCJ correctly held that the prosecution had proven its case against the Appellants beyond reasonable doubt. The Appellants had failed to rebut the presumption of knowledge on a balance of probabilities, or to cast reasonable doubt on other material aspects of the prosecution's case.

For the reasons given, we find the conviction of both appellants to be safe. The sentences of life imprisonment and 12 strokes of whipping imposed on each one of them are the minimum punishment prescribed by law.

The appeals are accordingly dismissed, and the decision of the HCJ is hereby affirmed. Dated the $ 1 9^{th} $ day of September 2025 (Lim Hock Leng) Judge Court of Appeal Putrajaya, Malaysia. Counsel for the 1 $ ^{1 \mathrm{st}} $ Appellant

Encik Muhammad Amirrul bin Jamaluddin

Encik Afifuddin bin Ahmad Hafifi

Cik Aina Melina binti Johan Ariff Lim [Messrs Salehuddin Saidin & Assoc] Counsel for the $ 2^{\mathrm{n d}} $ Appellant Cik Syaheera Rosli - Perayu 2 [Messrs Aziatul & Co] Counsel for the Respondent Atiqah binti Abdul Karim @ Husaini Deputy Public Prosecutor [Attorney General's Office]