Abdul Kalam Sajeev v Pendakwa Raya (N-05(M)-109-03/2023)

Rajan and Radhakrishnan led the police to a second location, which was located deep in an oil palm plantation, and which was accessible through a lane located at the side of the temple. This location was fenced off with zinc sheets.

When the police raided the second site, they apprehended the second to fifth accused persons within the fenced area. Inside the fencing were a cement single-storey building and a wooden goat shed on stilts

It was the prosecution’s case that the single-storey building was a laboratory for manufacturing drugs. Various apparatus were recovered from the building, including a weighing scale, a plastic bag sealer, heating devices and plastic and glass containers of various description. Also recovered were fluids in containers (including bottles marked ethanol) as well as substances in crystalline and powder form (including a bag marked caustic soda flake).

Outside the building were located two large electricity generators. DNA material recovered 9. The police recovered a toothbrush that was wedged on the outside of a window frame of the building. Five other toothbrushes and a metal band believed to be tongue-scraper were recovered from a blue plastic bag found hanging on a window frame on the inside of the building. Also recovered from inside the building were two hairbrushes. DNA testing of these items of grooming revealed the presence of DNA from the first, third, fourth and fifth accused. The analysis of the prohibited substances 10. Some of the material recovered was sent for analysis to the Department of Chemistry. The government chemist in this case, Dr Saravana Kumar Jayaram (PW4), testified that his analysis revealed the existence of the following substances: Police Marking Exhibit Numbers Drugs/substance type Net weight (grammes) Original container Chemist dep. container

SA5(b) P311b

SA2a P15

SA19 P17

SA20 P18

SA21 P19

Both methamphetamine and ketamine are prescribed as “dangerous drugs” in Part III of the First Schedule to the Dangerous Drugs Act 1952. Pseudoephedrine is prescribed in the First Schedule to the Poisons Act 1952. The tenancy 12. Subsequent police investigation showed that the land on which the single-storey building and goat shed were located belonged to one Mr Geva Krishnan (PW3), who at trial testified that he had let out the property in question to one Prema B Khaan Balasingam. Prema M Khaan Balasingam was never called to testify.” [4] The prosecution called 18 witnesses to testify at the trial to prove a prima facie case against the Appellants.

SA22 P20

SA23 P21

S2 P33 P39 Methamphetamine 439.1

S4 P34 P40 Methamphetamine 295.9

S7 P35 P41 Ketamine 69.87

S3 P36 P42 Ketamine 794.5

S5 P37 P43 Ketamine 337.8

S6 P38 P44 Ketamine 235.6 The Petition of Appeal [5] In appealing against the conviction and sentence, the Appellants raised the following grounds in their petition of appeal: i. On adequacy of evidence The learned Judge erred in law and in fact in convicting the Appellant as the evidence adduced by the prosecution was insufficient to warrant a conviction. ii. On burden of proof at the close of the prosecution case The learned Judge erred in law in applying the wrong test i.e. the prima facie case at the close of the prosecution’s case whereas the test laid down in Khoo Hi Chiang v PP held that that the duty of the court at the close of the case for the prosecution is a maximum evaluation of such evidence to determine whether or not the prosecution had established the charges against the Appellants beyond reasonable doubt. iii. On adverse inference The learned Judge erred in law and in fact in failing to draw adverse inference against the prosecution for not producing Prema B Khan Balasingam at the prosecution stage and Rajan a/l Gaju when the latter was offered as a witness to the defence. iv. On secondary evidence The learned Judge erred in law and in fact in admitting photographs at the trial under s. 65(1) of the Evidence Act 1950 when the requirement under the said section had not been met. v. On prerequisite of an expert evidence and the presumption of expertise The learned Judge erred in law and in fact when His Lordship failed to consider the prerequisite of an expert evidence had not been established and in presuming the competency of Dr Saravana Kumar Jayaram, the chemist (PW4). vi. On interpretation of evidence to the Appellants The learned Judge erred in law and in fact when His Lordship failed to consider that the Appellants could not understand English and Bahasa Malaysia and they wanted a Malayalam interpreter instead of a Tamil interpreter vii. On the defence The learned Judge erred in law and in fact in rejecting the Appellants’ defence as being probable. The learned Judge erred in law and in fact in failing to appreciate certain aspects of the evidence which are favourable to the defence, namely,

The building from which the dangerous drugs were recovered was locked and the accused persons did not have access to the inside of the building;

The 2nd to 5th accused persons were arrested outside the building;

The passports and other personal documents were recovered from a sling bag worn by

That the hairbrushes where DNA of the 1st, 3rd, 4th and 5th accused persons were found were retrieved from the pockets of the 3rd and 4th accused persons. [6] The Appellants will be referred to as they were in the High Court-Radhakrishnan Syam - 1st accused; Fazril Farook - 2nd accused; Sanulabdeen Siyad - 3rd accused; Abdul Kalam Sajeev - 4th accused; and Salim Sabeer - 5th accused. Our Findings i.Adequacy of evidence [7] It is our finding that the prosecution has proved all the elements of the charges under s.39B (1) (c) of the DDA and s. 9(1) of the Poisons Act 1952. [8] We are satisfied that based on the evidence of Dr Saravana Kumar Jayaram (PW4) and from his examination and analysis, the existence of the following substances were found from the drugs seized at the premise stated in the charges:

1510.17 grams of Methamphetamine;

2789.56 grams of Ketamine; and

996.2 grams of Pseudoephedrine [9] Both methamphetamine and ketamine are listed and prescribed in Part III of the First Schedule to the DDA as “dangerous drugs”. Pseudoephedrine being an alkaloid of ephedra is listed in the First Schedule to the Poisons Act 1952 and is accordingly a “poison” for the purposes of s.9 (1) of the same Act. [10] The tests employed by the government chemist PW4, to identify the substances from the drugs seized as well as in ascertaining their weights were not challenged by the defence. The learned High Court Judge is entitled and did not err in accepting wholly the evidence of PW4. PW4 was not questioned about the various tests which he had conducted and as such his testimony should be accepted as prima facie evidence unless it was so inherently incredible that no reasonable person could believe it to be true or evidence in rebuttal was called (see Munusamy v PP [1987] CLJ Rep 221 and Balachandran v Public Prosecutor [2005] 1 CLJ 85). [11] We are further satisfied that there were prima facie evidence disclosing that all the accused persons were in possession of the dangerous drugs and poison. The 2nd to the 5th accused persons were apprehended within the compound of the fenced off area. The 3rd to the 5th accused were found within the building that was suspected by the police to be drugs manufacturing laboratory. The DNA evidence found on grooming items placed the 1st, 3rd, 4th and 5th accused persons within the building where the drugs were found. It also supported the inference that the accused persons had been living in the premises. Passports and other identification documents belonging to the accused persons had been recovered from different bags found in the building. We further find that there were no challenge relating to the items stated in the inspection forms that personal identification documents of the accused persons were recovered from inside the building at the time of the raid and these evidences were unshaken. We agree with the learned High Court Judge’s finding that all the accused persons had access inside the building where the drugs were found as the presence of food in the refrigerator, bags and clothing including the two bedsteads and mattresses at the premise show that all the accused persons were staying at the premise. [12] The drugs were found in the living room and in the first room of the building. The proximity of the drugs to the place where the accused persons had been living supports the inference that the drugs had been in custody and control of all the accused persons. The drugs were not hidden or concealed. We are of the considered view that all the accused persons must have known the existence of the dangerous drugs in the building. It can be comprehended that the compound was located deep in an oil palm estate. The photographs show the compound of the building was cordoned with zinc fence beyond the height of an average person. We find that not only all the accused persons were staying in the premise, it also further excludes other persons involved in the custody and control of the drugs. [13] The above evidence evaluated as a coherent whole are sufficient to show that the prosecution had established the element of possession on the part of all the accused persons. The learned High Court Judge therefore correctly concluded that based on the facts of the case, the element of physical possession was proven. [14] In regards to the mens rea possession, the law is clear. Proof of knowledge is very often a matter of inference. It would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused persons had the necessary knowledge (see Parlan Dadeh v PP [2009] 1 CLJ 717). [15] It could be garnered from the evidence adduced, that the drugs were not hidden in either the living room or the first room in the building. ASP Soh (PW8) being the head of the raiding team testified that there was a strong chemical smell permeating throughout the building and he further testified that the accused persons appeared fearful at the time they were apprehended. We find there was ample evidence to show that the conduct of the accused persons was influenced by the fact in issue or relevant fact required by section 8 of the Evidence Act 1950 in that they knew of the drugs in the premise. The fact that the drugs were kept in a building located deep within an oil palm estate suggest that the accused persons must have known the nature of the items stored or kept therein. We agree with the learned High Court Judge when he stated, “Why else would the substances be stored in a remote location, except to keep them away from prying eyes.” We further agree with the learned High Court Judge that taken cumulatively, the evidence itemised by His Lordship in paragraph 49 (a)-(d) of the judgment and summarised in the above paragraph were sufficient to establish that the accused persons knew that the substance in the building in which they were occupying were dangerous drugs. The element of mens rea possession was proven. [16] The trafficking charges against the accused person was framed under s. 39B (1) (c) of the DDA. As rightly pointed out by the learned High Court Judge, in the charge, the accused persons were stated to be charged under s.39B (1) (C)- with the upper case “C”. We agree with the learned High Court Judge when His Lordship stated: “16. In the charge, the accused persons were expressed to be charged under section 39B (1) (C). There is, of course, no section 39B (1) (C)- with the upper case “C”. The correct reference should be to section 39B (1) (c) and that there was no reason to suppose that the charge was defective, as the accused persons were under no misconception regarding the case that was mounted against them, and indeed, the point had not been raised by the defence counsel at all, suggesting that they too did not consider the error to be one that prejudiced the accused person in any way.” [17] Section 39B (1) (c) of the DDA reads: “Trafficking in dangerous drugs 39B. (1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—

do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.” [18] Section 2 of the DDA defined “trafficking” as follows: ““trafficking” includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;” [19] The definition of “trafficking” is therefore wide. We agree with the learned High Court Judge that some preparatory acts may themselves be trafficking for the purposes of the definition in section 2 of the DDA. Keeping and storing of dangerous drugs could be said to be an act preparatory to another act of trafficking, e.g. selling or transporting the drugs. Manufacturing also falls within the definition of trafficking in section 2 of the DDA. [20] The evidence adduced by the prosecution disclosed that the methamphetamine were sealed in transparent plastic bags. They were not concealed. The respective drugs were kept and stored by the accused persons and based on the location at which the drugs were found, it could only be inferred that the accused persons not only have knowledge, they were also trafficking in the dangerous drugs. We find that the learned High Court Judge did not err in his findings as to trafficking stated in the following manner: “Trafficking 54. It will be recalled that the charge against the accused persons was framed under section 39B (1) (c) of the Dangerous Drugs Act 1952, for committing an act preparatory to trafficking. The keeping and storing of a dangerous drug could be said to be an act that is preparatory to another act of trafficking, for example, selling or transporting the drugs in question. Furthermore, as can be seen from paragraph 15 ante, the definition of “trafficking” in fact includes keeping and storing dangerous drugs.

On the facts of the present case, I was of the view that the prosecution had sufficiently established that dangerous drugs had been kept and stored by the accused persons at the premises in question. As previously explained, the methamphetamine had been sealed in transparent plastic bags. No attempts had been made to conceal either the methamphetamine or the ketamine. It may thus be inferred that the drugs in question had been kept and stored by the accused persons, as the location at which the drugs had been kept and stored by the accused persons, as the location at which the drugs were found meant that they could not have not known of their existence.” [21] In regards to the offence under section 9 (1) of the Poisons Act 1952, we are also satisfied that from all the evidence and circumstances of the case, the accused persons have both the physical and mental element of having possession of the poison, Pseudoephedrine. [22] We therefore find that there were overwhelming evidence adduced by the prosecution proving a prima facie case against all the accused persons for all the charges preferred against them. ii. Burden of proof at the close of the prosecution case [23] We will not be addressing this ground as the learned counsel did not proffer argument on this issue be it orally or in their written submission. In any event we are satisfied that the learned High Court Judge undertook a maximum evaluation of the evidence adduced by the prosecution and had judicially considered all issues raised by the defence at the prosecution stage. We find that from the facts and evidence adduced, a prima facie case had been established as the prosecution has presented credible evidence to prove each essential element of the alleged offence, such that a conviction is warranted if the defence offers no explanation or evidence to the contrary. iii. Adverse inference [24] It was contended that the learned High Court Judge erred in law and in fact in failing to draw adverse inference against the prosecution for not producing one, Prema B Khan Balasingam at the prosecution stage and another person by the name of Rajan a/l Gaju when the latter was offered as a witness to the defence. [25] Prema B Khan Balasingam was the tenant of the land on which the alleged laboratory and goat pen were located. The land was let out to Prema B Khan Balasingam vide a tenancy agreement dated 15.3.2018 signed between him and the landlord, Geva Krishnan (PW3). According to PW3, at the time he let out the land, there was already the building and goat pen on it, but they were empty. PW3 had visited the land three times thereafter and had observed that there were five workers working at the location and that the zinc fence was erected around the perimeter of the land. According to PW3, the workers were not the accused persons. Around three months after the tenancy agreement, PW3 was incarcerated in prison and he had no further information as to the land until the date where the raid was conducted. [26] The presumption of adverse inference under section 114 (g) of the Evidence Act 1950 can only be drawn if there has been withholding or suppression of evidence and not merely on account of failure to obtain evidence. The prosecution has the discretion to call its witness provided that all necessary evidence to prove its case beyond reasonable doubt is adduced (see: Siew Yoke Keong v Public Prosecutor [2013] 3 MLJ 630 (FC)). [27] We are of the considered view that from the facts and evidence adduced by the prosecution, there is sufficient evidence proving the culpability of all the accused persons and it can never be said that there had been withholding or suppression of evidence merely on account of the non-calling of Prema B Khan Balasingam. We agree with the learned High Court Judge’s finding where His Lordship had considered and found as follows: “I was satisfied that, on the facts of the present case, there existed no basis in law for the invocation of an adverse inference for the failure by the prosecution to call Prema B Khan Balasingam to testify. In circumstances where the drugs were recovered from a concealed place in the premises, and the accused disavows knowledge of the existence of the drugs, then the issue of who was the lawful occupier of the premises comes to the fore. Could the drugs have been placed in the premises before the accused came onto the premises? Did the accused know of the existence of the drugs? Was it possible to exclude the involvement of the lawful occupier? These would all be facts in issue where the drugs were concealed within the premises. By contrast, the evidence in the present case established that the drugs were found in the open and in unconcealed locations in the building alleged to be the laboratory. The evidence also placed the accused persons inside the building. The implication of these basic facts were that the accused persons could not have known of the existence of the suspicious crystalline and powdered substance neatly packed into transparent plastic packages. Put another way, even if Prema B Khan Balasingam was complicit in the arrangement to set up a meth lab deep in a plantation estate in Rantau, this did not in any meaningful way detract from the culpability of the accused persons under section 39B of the Dangerous Drugs Act 1953;” [28] Rajan a/l Gaju was the subject of initial police surveillance. He was detained by the police together with the first accused at the Seri Mariamman temple. In the course of the trial, evidence was received that the police had obtained intelligence regarding a drug syndicate that was masterminded by a man of Indian ethnicity who used a Mazda four wheel drive truck bearing registration number MCY 5242 who the defence contended to be Rajan a/l Gaju. Evidence was also adduced that Rajan a/l Gaju was charged with other drug related offence distinct from the present matter. Again, we agree with the learned High Court Judge’s finding that given the fact that the drugs found in the open and in unconcealed locations in the building – the laboratory, and the evidence also placed the accused persons inside the building, they could not have not known of the existence of the suspicious crystalline and powdered substance neatly packed into transparent plastic packages. We find that the learned High Court Judge was right in holding the followings: “[58]…in my considered judgment, the same observations apply as they do in respect of Prema B Khan Balasingam. Even if Rajan were called to testify, it would not change the basic fact that the accused persons were found to be in close proximity with the drugs. Rajan may well have been the mastermind-or at the very least the lynchpin of the operations-but whether or not this was true had no effect on the culpability of the accused persons.” [29] The existence of two other persons were also raised by the defence and the Court was also invited to invoke adverse inference against the prosecution under section 114 (g) of the Evidence Act

The learned High Court Judge in his considered judgment applied the same analysis and conclusion relating to Prema B Khan Balasingam and Rajan a/l Gaju. We cannot disagree with the learned High Court Judge. His Lordship’s reasoning and finding are reproduced: “58 (c) The Chinese couple. At trial, Sarjan Mohd Rozek bin Azmi (PW17) testified that he had been stationed at the compound within the plantation between 10 am and 11.30 pm on 4 August 2018 in order to monitor and control access to the scene of the suspected crime. He was asked whether he saw a Chinese couple present on the premises. He answered that he did not. When the investigating officer (ASP Nursaiful Asrar, PW18) testified, the existence of the Chinese couple was put to him in cross-examination: DH : Setuju dengan saya, rumah tempat kejadian. Kawasan ini ada rumah, zink di sekeliling dan kawasan kambing di depan tempat-tempat air minuman untuk lembu. Ini adalah rajah kasar. ASP bersetuju dengan saya, semasa siasatan ada menunjukkan ada sepasang suami isteri bangsa Cina pernah mengakses melalui tempat berpagar. Semasa penyiasatan mendapati ada orang mengakses melalui tempat berpagar. Semasa penyiasatan mendapati ada orang mengakses melalui pagar belakang ke pagar depan. Ada? SP18 : Ada It was advanced for the defence that the prosecution ought to have called the sentry officer who was on duty before 10am on 4 August 2018, who could have revealed that the area had been accessible to other individuals. The failure by the prosecution to do so – it was argued – amounted to a withholding of evidence, as the prosecution had an ulterior motive for not producing the evidence. In my considered judgment, the same analysis and conclusion in the two preceding subparagraphs applied here too. The proximity of the accused to the drugs that were unconcealed, which was established through their physical presence inside the building at the time of arrest, the recovery of personal identification documents and/or by the DNA evidence, meant that the access of other persons to the compound was not a fact in issue in this case. In addition and no less significantly, the presence of the Chinese couple was not in fact properly before the court. The investigating officer (SP18) was not present at the scene and thus was not competent to testify regarding the presence of anyone else at the compound. He could testify that he had been told by someone else that a Chinese couple had been present, but this testimony was inadmissible for the purposes of establishing the truth or otherwise of the statement.” [30] Ultimately, on this issue of adverse inference, we are of the considered view that there is no merit in the defence’s contention. The existence of all the witnesses-Prema B Khan Balasingam, Rajan a/l Gaju and the Chinese couple could not alter or negate the narrative of the prosecution’s case relating to the ingredients of the offence i.e. custody, control and knowledge on the part of the accused persons. The non-calling of these witnesses did not affect the truth of the prosecution’s case that the accused persons were trafficking in dangerous drugs. iv. Admissibility of secondary evidence-the photographs [31] It was submitted that the learned High Court Judge erred in law and in fact in admitting photographs at the trial under section 65(1) of the Evidence Act 1950 when the requirement under the said section had not been met. [32] Section 65 (1) of the Evidence Act states: “Cases in which secondary evidence relating to documents may be given

(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

when the original is shown or appears to be in the possession or power—

of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it,and when after the notice mentioned in section 66 such person does not produce it;

when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time;

when the original is of such a nature as not to be easily movable;

when the original is a public document within the meaning of section 74;

when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence;

when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.

(a) In the cases referred to in paragraphs (1)(a), (c) and (d) any secondary evidence of the contents of the document is admissible.

In the case referred to in paragraph (1)(b) the written admission is admissible.

In the case referred to in paragraph (1)(e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible.

In the case referred to in paragraph (1)(g) evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents” [33] It is therefore clear that secondary evidence of the contents of a document is inadmissible, until the non-production of the original is first accounted for, so as to bring it within one or the other cases provided for in the section (see: KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627 (Supreme Court)). We find that the photographs tendered by the prosecution were rightly admitted by the learned High Court Judge under section 65 (1) (c) of the Evidence Act 1950 since satisfactory foundation was laid for such admission of such secondary evidence. Section 65 (1) (c) of the Evidence Act 1950 states that secondary evidence may be given of the existence, condition or contents of the document admissible in evidence inter alia when the original has been destroyed or lost. The foundation laid and the reasons given by the learned High Court Judge in admitting the photographs are found in the following paragraphs of the judgment: “59. At trial, Korperal Saiful bin Yaacub (PW10) testified that he had taken the photographs that were tendered at trial. According to PW10, the photographs were taken using a Canon EOS 600 D digital camera, which utilised a memory card. The image files were then copied from the memory card into a pen drive using a computer. The contents of the pen drive was then copied again onto a CD-R (recordable compact disc). The photographs tendered at trial were printed from this CD-R.

The image files that were contained in the pen drive and in the memory card had been deleted by PW10.

Dato’ Hariharan for the defence submitted that the photographs were thus inadmissible on account that they were not primary evidence.

Dato’ Hariharan was entirely correct that the photographs tendered were not primary evidence. Had the photographs been printed directly from the memory card, then they would have been primary evidence: see Explanation 3 to section 62 of the Evidence Act 1950. In this case, the photographs had not been printed directly from the memory card.

Once the image files were copied onto the pen drive, the images on the pen drive became secondary evidence of the originals: see section 63 (b). As a general rule, documents must be proved in court by the adduction of primary evidence: section

Secondary evidence may, however, be adduced provided one or other of the requirements of section 65 (1) have been met. Section 65 (1), which is material for the present purposes, provides as follows: Cases in which secondary evidence relating to documents may be given

(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

when the original is shown or appears to be in the possession or power—

of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it,and when after the notice mentioned in section 66 such person does not produce it;

when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time;

when the original is of such a nature as not to be easily movable;

when the original is a public document within the meaning of section 74;

when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence;

when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.

Of particular relevance is paragraph (c). In my considered view, based on a plain reading of this provision, once evidence is led that the original had been destroyed or lost, then secondary evidence of the original becomes admissible.

The presence of the comma after the word “lost” makes it clear that the two scenarios described in paragraph (c) are disjunctive. This means that, once evidence is led that the original has been destroyed or lost, there will be no further need to show that the person seeking to adduce the document has not been in default or neglect in failing to produce the original.

In this case, SP10 testified that he had deleted the originals. This was, in my judgment, sufficient to fulfil the first limb in section 65 (1) (c) of the Evidence Act 1950. The photographs were accordingly admitted into evidence and marked as exhibits.” [34] We therefore find no reason to disagree with the findings made by the learned High Court Judge on this issue. v.On prerequisite of an expert evidence and the presumption of expertise [35] The defence contended that the learned High Court Judge erred in law and in fact when His Lordship failed to consider that the prerequisite of an expert evidence had not been established and in presuming the competency of Dr Saravana Kumar Jayaram, the chemist (PW4). We find no merit in this argument. We find, PW4’s credential was not challenged during the trial, and his findings could not also be disputed. Given that those findings were not challenged it was, with respect, pedantic to argue of his expertise for he had given reasons for his findings and had clearly explained the methods he had employed to identify the substances tested as well as to ascertain the net weight of those substances. The methods included gas chromatography-mass spectrometer and Fourier transform infrared spectroscopy, which were used to identify the drugs/poison. The substances recovered were first homogenised and samples were taken from the homogenised material. The samples were analysed using a gas chromatography-flame ionisation detector instrument, in order to arrive at the net weight of the drugs/poison in the sample from which the net weight of the drugs/poison recovered could be deduced. We find that PW4 is competent to conduct the examination and analysis and that the learned High Court Judge was right in holding that PW4’s expertise had been established in analysing the drugs/poison involved in the present matter. vi. On interpretation of evidence to the Appellants [36] We are not addressing this issue as it was not canvassed during the submission by the learned counsel as well as in the written submission. vii. On the defence [37] On this ground, it was submitted before us that the learned High Court Judge erred when His Lordship failed to consider that the prosecution failed to cross examine on vital piece of evidence and the prosecution did not challenge the following pieces of evidence, namely;

The building from which the dangerous drugs were recovered was locked and the accused persons did not have access to the inside of the building;

The 2nd to 5th accused had been arrested outside the building,

The passports and other personal documents were recovered from a sling bag worn by Rajan; and

That the hairbrushes where DNA of the 1st, 3rd, 4th and 5th accused persons were found were retrieved from the pockets of the 3rd and 4th accused persons. [38] Foremost, we are of the considered view that failure to cross-examine the accused persons was not fatal to the prosecution’s case and that the court must still evaluate the totality of the evidence to determine the guilt of the accused persons. Failure to cross-examine does not necessarily amount to admission. In Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212, the Federal Court had held that there was a misdirection by the trial judge when he held that the failure of the defence to cross-examine the witnesses on the ammunition found in the trouser pockets of the appellant constituted an admission of the charge of possession by the appellant. However, the Federal Court found that this did not affect the correctness of the verdict as the totality of the evidence pointed conclusively to the guilt of the appellant. We are of the considered view that although the prosecution did not cross-examine the accused persons in respect of some of the evidence, it does not tantamount to a tacit admission of the defence version. [39] In Nor Badli Munawir Bin Mohamad Alias Lafti v Public Prosecutor [2024] 3 MLJ 572, the Court of Appeal had held: “[175] From our close scrutiny of the record and in particular the judgment of the learned trial judge and the learned High Court judge, we are of the considered view that failure of the prosecution to cross-examine the accused on a crucial part per se does not amount to an admission or acceptance of the accused’s testimony. We must consider the totality of the evidence and decision must be based on an examination of all the evidence presented and not evidence in isolation. Moreover, it is also apparent from the learned trial judge’s comprehensive judgment that she had directed herself on the issue of credibility of the prosecution witnesses and accepted their evidence.” [Emphasis added] [40] As a corollary, the learned High Court Judge was right in holding as follows: “[108] In my considered judgment… the court must still proceed to weigh the relative merits of the competing assertions, mindful of the standard of proof that must be discharged by the respective parties. The ordinary principles would apply on evaluating the evidence of the witness of the defence does the court believe the defence witness? If so, it must acquit. If it does not believe the witness, the court must proceed to ask itself a further question has the testimony of the witness give rise to a reasonable doubt? If the answer is in the affirmative, then the court must acquit. [109] Having evaluated the testimonies of the witnesses in this case, I was of the view that the testimonies of the accused persons have not given rise to any reasonable doubt regarding their culpability on the charges.” [41] In opting to give sworn testimonies by way of witness statements, summarily, the defence proffered by the accused persons was that they did not have access to the inside of the building as the front door of the building was locked at all material times. [42] We find that the learned High Court Judge had considered and evaluated the defence in its entirety. Upon weighing the defence and the evidence adduced before the court, the learned High Court Judge had accepted the evidence of ASP Soh (PW8) as His Lordship found no reason to disbelieve him. The learned High Court Judge preferred the testimonies of the PW8 and Mr Udiasoorian (PW13), the forensics officer, over the testimonies of the accused persons whom His Lordship found to be self-serving. [43] We find no reason to disturb the findings and evaluation made by the learned High Court Judge at the defence stage. We find that the learned Judge was right in holding that: “[91] The testimony of ASP Soh was not inherently improbable, and as such due weight ought to be accorded to his evidence. Furthermore, having observed the demeanour of ASP Soh in the course of the trial, I saw no reason to disbelieve his testimony. [92] The version of events put forth by the defence was that the hairbrushes were recovered not from the inside of the building but form the pockets of the accused persons. This was never put to Mr Udiasoorian. I was also of the view that the fact that Mr Udiasoorian had already retired by the time of trial gave greater credence to his testimony. Nothing could conceivably be gained by his giving false testimony under oath. If the defence was correct, then it must necessarily follow that Mr Udiasoorian has staged the scene of the raid by placing the hair brushes and the blue plastic bag containing the dental implements inside the building so that the police photographer could record their position as such. [92] I preferred the testimonies of PW8 and PW13 over what I viewed were self-serving testimonies from the accused persons. More than just that, I found that the evidence of the defence did not raise any reasonable doubt. The possibility that both ASP Soh and Mr Udaisoorian concocted a version of events to implicate the accused persons were in my considered judgment so infinitesimally small so as to be incapable of raising a reasonable doubt on the prosecution’s case.” [44] At the defence stage, the learned High Court Judge addressed the issue relating to Rajan a/l Gaju again specifically to the issue of the latter’s attendance who was slated to be the last witness for the defence after being offered by the prosecution at the close of the prosecution’s case. Apparently, at the time when the trial was ongoing, Rajan a/l Gaju was discharged and acquitted from a separate drug trafficking offence. Subsequent efforts to locate him came to no avail. The learned High Court Judge addressed the issue as follows: “[102] In my considered judgment, the key question determining whether an acquittal ought to be ordered is whether the non-attendance of a witness that had been offered to the defence has raised a reasonable doubt in the prosecution’s case. In PP v Asnawi Yusuf, the fact in issue was whether the accused knew that the packages contained cannabis-which went towards the mens rea for possession. The attendance of the three witnesses could establish whether or not Fakrullah did exist, and whether or not Fakrullah had asked to borrow Abdul Rahman’s Proton Iswara. Their testimony could have supported the version of events put forth by the defence, and hence their non-attendance was material to the determination of the guilt of the accused. [103] By contrast, in the present case, the objective facts established the presence of the accused persons in the house (see paragraph 34 to 39, ante). The element of physical possession of the dangerous drugs and poison could be inferred from the surrounding circumstances (see paragraph 43), as could the mental element of possession (see paragraph 49). Whether or not Rajan was called to testify would not change or negate these findings. Put another way, there was no live fact in issue that could be resolved by the attendance of Rajan. I was thus of the view that the non-attendance of Rajan would not have been capable of raising a reasonable doubt regarding the guilt of the accused persons, which was established from inferences drawn from the objective facts in this case.” [45] The approach to be taken by an appellate court when dealing with a trial court's assessment of credibility of witness is well-established by high authorities. The credibility of a witness is primarily for the trial judge. An appellate court should always be slow in disturbing such finding of fact arrived at by the judge who had audio visual advantage of the witness and we find there are no substantial and compelling reasons for disagreeing with the learned High Court Judge’s findings. Conclusion [46] In the upshot, having heard and perused the submissions of both the Appellants and the Respondent, the judgment of the learned High Court Judge and the Appeal Records, we find that the learned High Court Judge had made a clear finding of facts relating to the credibility of witnesses and ingredients of the offence. Cogent evidence was adduced and evaluated thoroughly and we find no appealable error in the judgment warranting appellate intervention. We unanimously find that the convictions are safe and the appeals by the accused persons as Appellants herein were dismissed. The convictions were therefore upheld. The sentence passed for the offence under section 9(1) of the Poisons Act 1952 (Third Charge) was also upheld [47] In regards to the death sentence meted out by the learned High Court Judge, which was mandatory at the material time and discretion for the learned High Court Judge to impose a custodial sentence was not available then, in line with the spirit manifested in the Abolition of Mandatory Death Penalty Act 2023 (Act 846) which came into effect on 4 July 2023, after having considered the background, facts and the accused persons’ mitigation, we are of the considered view that there are merits in their appeal against sentence. Their appeals against sentence for trafficking in the dangerous drugs offences were therefore allowed. [48] We accordingly set aside the death sentence for the trafficking in the dangerous drugs offences and replaced with the followings:

Salim Sabeer (Appeal No. N-05(M)-108-03/2023) First Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Second Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Both sentences were ordered to run concurrently.

Abdul Kalam Sajeev (Appeal No. N-05(M)-109-03/2023) First Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Second Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Both sentences were ordered to run concurrently.

Radhakrishnan Syam (Appeal No. N-05(M)-110-03/2023) First Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Second Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Both sentences were ordered to run concurrently.

Sainulabdeen Siyad (Appeal No. N-05(M)-111-03/2023) First Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Second Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Both sentences were ordered to run concurrently.

Fazil Farook (Appeal No. N-05(M)-112-03/2023) First Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Second Charge: 30 years imprisonment from the date of arrest (3.8.2018) and 12 strokes of whipping. Both sentences were ordered to run concurrently. Dated: 06th October 2025 Sgd NOORIN BINTI BADARUDDIN Judge Court of Appeal Malaysia Parties: Counsel for the Appellants Sharonpal Singh [Sharonpal Singh & Associates (Pelabuhan Klang)] Counsel for the Respondent Noorhisham Bin Mohd Jaafar [Deputy Public Prosecutor Attorney General’s Chamber]