Abdullah Fuad Mareai Al Katheri v Pendakwa Raya (W-05(SH)-234-05/2024)

The Appellant in this case was charged at the Kuala Lumpur High Court under Section 39B(1)(a) of the Dangerous Drugs Act 1952, which is punishable under Section 39B(2) of the same Act. For purposes of convenience, the Appellant shall be referred to as “the Accused”.

Prior to the commencement of the trial, the Public Prosecutor (“the Prosecution”) amended the charge against the Accused.

The amended charge against the Accused reads: “Bahawa kamu pada 9/4/2021 jam lebih kurang 8.45 malam di Unit B-22-11 The Elements @ Ampang, Jalan Ampang, di dalam Daerah Wangsa Maju, dalam Wilayah Persekutuan Kuala Lumpur telah mengedar dadah berbahaya jenis Cannabis [berat bersih:

208.20 gram], dan dengan itu kamu telah melakukan satu kesalahan dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah Seksyen 39B(2) Akta yang sama.”

The Accused claimed trial to charge preferred against him. Upon review of the evidence adduced by the Prosecution during the Prosecution’s case, the Accused was ordered to enter his defence.

On 14.5.2024, the learned High Court Judge (“HCJ”) found the Accused guilty as charged. He was then accordingly convicted and sentenced to life imprisonment for 30 years from the date of the arrest 9.4.2021 with 12 strokes of the rotan.

Dissatisfied with the decision of the HCJ, the Accused duly appealed to the Court of Appeal.

The appeal against the decision of the HCJ was heard on 2.7.2025. Having heard submissions by learned counsel for the Accused and the prosecution and upon reviewing the record of appeal, this panel found no appealable error by the HCJ that warranted curial intervention. The appeal was accordingly dismissed and the conviction and sentenced by the HCJ was duly affirmed.

The following are our grounds for deciding so.

On 9.4.2021 at about 6.05 pm, PW6 and his team raided an apartment at Pangsapuri Seri Maya, Jalan Jelatek, Kuala Lumpur (“Sri Maya”). The Police arrested 4 male Yemeni citizens and 1 female Malaysian, one of them were the Accused. The Police found no incriminating things at Sri Maya. However, when the Accused was searched by PW6, he found 2 access cards with the words “The Elements @ Ampang” written on it and 2 sets of keys in yellow and purple colour each in the right front pocket of the Accused’s pants.

Upon questioning, the Accused gave information that the access cards belonged to his rented house at The Elements @ Ampang (“The Elements”) and the presence of drugs. All of them were brought to IPD Wangsa Maju for further investigation.

Thereafter, the Accused then led PW6 and his team to his rented apartment no. B-22-11 at The Elements (“the apartment”). Upon reaching the apartment, PW6 found the grill door and the wooden door of the apartment were locked. Using the yellow and purple keys seized from the Accused, PW6 successfully opened the doors.

In the apartment, the Accused led the Police into a room and the Accused himself picked up an aluminum container containing drugs (cannabis).

PW6 and his team further inspected the room and seized 1 cutting board, a yellow knife, a digital weighing scale written “Camry” on it, a transparent plastic bag containing packets of transparent plastic bags and other items to process drugs.

The Accused had rented the apartment at The Elements together with his girlfriend, Zaidahtul Umira binti Zainorin (“Umira”). They both had moved into the apartment and stayed there for nine days until their arrest on 09.04.2021. Both the Accused and Umira had a set of keys and access cards.

On 9.04.2021, the Accused and Umira were planning to go to their friend’s house at Sri Maya. The Accused left The Elements first while Umira joined them later. When the Accused left his apartment at The Elements, he did not see any aluminum container, drugs, wooden board, cutter and weighing scale on the bed or in the apartment. However, the Accused saw Umira bringing in a few aluminum containers into the apartment before when they both first moved in.

At Sri Maya, the Police came and arrested the Accused, Umira and their friends. The Police conducted body search on the Accused and they found a set of access cards and keys for the Elements. Body search was not done on Umira. They were all then brought to the Police station.

At the police station, PW6 had put the access cards in front of the Accused’s face, shouted at him and hit him across the face. There was also no interpreter present and the Accused had trouble understanding any of the questions asked by PW6. Due to assault and verbal abuse from PW6, the Accused informed PW6 about his apartment at The Elements. He then agreed to PW6’s questioning by saying, “Yes” despite not understanding the questions asked. However, the Accused denied admitting to PW6 about the existence of drugs in his apartment at The Elements.

The Accused was brought to The Elements by the Police. The Accused entered the bedroom with PW6 and later saw the aluminum container on the bed. PW6 then gestured to the Accused to bring the item to him to which the Accused complied. The Accused was beaten by PW6 at that time. The Accused was then brought back to the Police station.

The following morning on 10.4.2021, Umira was released by the Police. There was evidence given by DW2 that Umira had access to the apartment in The Elements as well as the lobby and the lifts. Umira brought DW2 and one friend by the name of Sami up to the apartment, where the 3 of them had a discussion there. DW2 and Umira discussed over the phone regarding the collection of the Accused’s items to be sold. ABSENCE OF THE HIGH COURT’S GROUNDS OF

At this juncture, we pause to mention that due to the retirement of the learned HCJ who heard the trial, there is no full grounds of judgment in the Record of Appeal. Nonetheless, we are aided by the Notes of Proceedings dated 28.2.2024 (containing the HCJ’s oral deliberation at the end of the prosecution’s case) and the HCJ’s written broad grounds of judgment at the end of the trial dated 30.6.2024 by the HCJ albeit there are no grounds of judgment in the record of appeal.

Armed with both the above documents, we are of the view that there is full compliance with the provisions of Rule 61(1)(e) of the Rules of the Court of Appeal 1994, to enable us to hear this appeal by way of a re-hearing (see also Masoud Golizadeh Aliheidar v PP [2015] CLJU 1325 and Mohamad Deraman v PP [2011] 3 CLJ 601). SUMMARY OF THE FINDINGS OF THE HCJ AT THE END

The following is a summary of the HCJ’s findings: a.

The HCJ also considered other aspects of the case: i. Based on investigation, the apartment was rented under the name of the Accused. ii. There was no women clothing in the cupboard located in the apartment. Thus, there was no justification to justify the fact that there was a woman staying there. iii. The failure to call Zaidatul was explained. Efforts were made by the prosecution to call her as a witness. There was no sufficient evidence for the Court to invoke the presumption of adverse inference for their failure to call her as their witness. More so, the Prosecution’s case was already complete. iv. This was a case under Section 27 of the Evidence Act. The fact that there are others who have access to the house is a different issue. ANALYSIS AND FINDINGS OF THE HCJ AT THE END OF

During the defence case, the Accused and his friend testified by way of oral evidence.

At the conclusion of the trial, the Court found the Accused guilty as he had failed to rebut the presumption of trafficking and failed to raise a reasonable doubt on the Prosecution’s case.

The HCJ’s findings are summarize as follows: a. Whilst this Court has no doubt on the Police witnesses’ credibility, the credibility of the Accused was questionable. The defence was a bare denial against the strong evidence of the Prosecution. b. The Accused had voluntarily brought the Police to the apartment in The Elements. He argued that he finds difficulties in understanding Bahasa Malaysia. However, the Court found him untruthful as the Accused works in an agency teaching English and Bahasa Malaysia. Hence, he should understand Bahasa Malaysia. c. The fact that the Access Card and the keys were found in the Accused’s possession at Seri Maya shows he has custody and control of his apartment at The Elements where the drugs were found. Further, the Rental Agreement was in his name alone. d. The Accused had raised the defence of exclusivity in the sense that the apartment was not exclusive to him as Umira has access to it too. The Court ruled that his defence was not sustainable because:

The Accused was the one who gave the information of the whereabout of the drug when the Police interrogated him under Section 27 of the Evidence Act. The finding of the drugs lends credence to the information given by the Accused. This shows that the Accused had knowledge of the drugs. This was further corroborated by his conduct in bringing the Police to the apartment. Hence custody, control and knowledge (mens rea possession) was proven. The presumption under Section 37(da) was then triggered;

(ii) He claimed Umira has access to the apartment as she also had a set of all the keys and also access card. This is in contradiction with the evidence of SP3, the Property Agent who said only 1 set of key and access card were given to the Accused. Further he is the only person named in the Agreement with the Land Lord. THE HCJ’S CONCLUSION

Having reviewed the defence case, the HCJ concluded that the Accused failed to cast a reasonable doubt on the Prosecution’s case. The Accused was therefore convicted and sentenced to life imprisonment for 30 years from the date of the arrest 9.4.2021 with 12 strokes of the rotan.

At the hearing of the appeal before us, learned counsel for Accused raised two (2) main issues:

that the learned HCJ had erred by dismissing the Appellant’s defence on the reasons that the defence’s position regarding Zaidahtul Umira binti Zainorin access to the apartment and her possession of a separate set of keys and access cards was in contradiction with the agent, PW3’s evidence that only one set of keys and cards were handed to the Appellant.

(ii) That the learned HCJ erred in concluding that the finding of the drugs at the apartment lent credence to the information allegedly given by the Appellant to PW6 and as such, being information leading to discovery under Section 27 of the Evidence Act, it supported a finding of knowledge on the part of the Appellant. PRINCIPLES APPLICABLE IN A CRIMINAL APPEAL

Before we proceed to deliberate on issues raised before us, it is important for us to re-state the principle that an appellate court hearing an appeal from the lower court, has a discretion re-evaluate evidence adduced at the trial stage. The application of this principle can be observed in PP v Azilah Hadri & Anor [2015] 1 CL J 579 where Suriyadi Halim Omar FCJ (as he then was), in delivering the decision on behalf of the Federal Court stated as follows: “[102] We hold the view that even if the trial judge had failed to mention of any evaluation of common intention in his written grounds of judgment, the Court of Appeal, which in law reheard the case when exercising its appellate function, was empowered and also duty bound to carry out an evaluation exercise to determine whether common intention did exist. Here the Court of Appeal equally failed to do that. An appeal is a continuation of proceedings by way of rehearing and an appeal court may subject the evidence to a critical re-examination. (Ahmad Najib Aris v PP [2009] 2 CLJ 800; [2009] 2 MLJ 613; Mohamad Deraman v PP [2011] 3 CLJ 601; [2011] 3 MLJ 280).”

Prior to the decision in PP v Azilah (supra), the same approach was taken by Zulkefli Ahmad Makinudin FCJ (later PCA) in Ahmad Najib bin Aris v Public Prosecutor [2009] 2 ML J 613: “As regards the first main ground of appeal, I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence as adduced by the prosecution. The Court of Appeal is in the position to do so in the present case even though the grounds of decision, of then trial judge as appearing in the appeal records is found lacking in specific findings. The Court of Appeal has the discretion to re-evaluate the remaining evidence and to scrutinize in totality such other evidence, apart from the confession to determine whether the evidence is sufficient to satisfy all the elements of the charges against the appellant. After all such steps been taken, the Court of Appeal is obliged to scrutinize whether to affirm the conviction against the appellant.”

Both the Federal Court cases referred to above are binding on this Court. Based on the submission raised by both parties, it is incumbent upon us to re-evaluate the evidence adduced at the trial for purposes of determining whether there is a prima face case and the evidence relating to information leading to discovery as envisaged under section 27 of the Evidence Act 1950 as found by the learned HCJ. THE NEED TO PROVE A PRIMA FACIE CASE AT THE END OF

Section 180 of the Criminal Procedure Code provides for the following: “(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused.

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

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

The question which arises from a reading of the above provision would then be: What is the test to be used in determining whether a prima facie case has been made out or otherwise? This was succinctly answered by the Federal Court decision in Balachandran v Public Prosecutor [2005] 2 ML J 301: “The test at the close of the case for the prosecution would therefore be: is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case.”

Next, we come to the duty of the Court after having called the accused to enter his or her defence. This can be found 182 of the CPC which prescribes as follows: “182A(1) At the conclusion of the trial, the Court shall consider the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it.

If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.”

The foundation of the above principles can clearly be seen in the case of Mat v PP [1963] MLJ 263, where Sufian J. (later LP) stated as follows: “(a) If you are satisfied beyond reasonable doubt as to the accused’s guilt…. Convict

If you accept or believe the accused’s explanation …

If you do not accept or belief the accused’s explanation …. Do not convict but consider the next steps below.

If you do not accept or believe the accused’s explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt … Convict

If you do not accept or believe the accused’s explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt … Acquit.” OUR ANALYSIS

We now come to the charge preferred against the Accused. Under the said charge, the Prosecution must prove the following ingredients in order to secure a conviction.

Firstly, that there were drugs (as listed in the 1st Schedule of the DDA 1952) found in the apartment which was rented by the Accused.

Secondly, the Accused was in possession of the drugs i.e. he had custody and control of the drugs. The element of knowledge is a mandatory pre-requisite.

Thirdly, that the drugs were for the purposes of trafficking. DEFINITION OF ‘POSSESSION’

It is our considered view that the most important ingredient in this case evolves on the issue of ‘possession’. One of the clearest illustrations as to what is meant by the term ‘possession’ in a case involving the DDA, can be found in the celebrated case of Leow Nghee Lim v. R [1956] 22 MLJ 28 as follows: “The word “possession” is one of the most difficult of English words. It is derived from posse to be able and sedere to sit or occupy. The Fundamental concept is power of occupation; primarily this referred to land and later the meaning was extended to power of user of a chattel. The primary lay meaning of possess is to hold as property, to own. The primary legal meaning of possess is to have possession is to have possession, as distinct from ownership. This is well illustrated by the popular phrase for a sheriff’s agent, “A man in possession,” who really has only custody. Shakespeare more accurately called him a bum bailiff. In this Ordinance (the Dangerous Drugs Ordinance) custody is distinguished, and I think “possession” means possession irrespective of whether the possessor is the beneficial owner. Probably the most helpful definition of possession is:- The relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing admits, to the exclusion of other persons.” This definition does not express, but it does imply that the meaning of the word includes some element of knowledge…. … In some of the cases it has been said that without knowledge there can be no possession. In others, “in possession” has been read as “knowingly in possession” by application of the doctrine of mens rea. In some instances either view leads to the same result but not in all. The dicta does not make what degree of knowledge is meant. Also in some of the statutes, “possession” and knowledge” have been treated separately and much confusion resulted. The word “possession” is a vague and general word which cannot be closely defined. Without at least general knowledge there cannot be possession but there can be possession without full and exact knowledge. This is recognized under the present Drugs Ordinance which provides, by the presumption already cited, that if a man has custody or control of a drug the onus of proving, first that he did not have possession, and secondly that he did not know the nature of the drug, shall be shifted to him. The Ordinance deals both with Opium (the subject matter of that case) and with other drugs (as in our present case - Cannabis). Possession of Opium is prohibited absolutely. Possession of drugs in general is not prohibited absolutely because many drugs are familiar household articles; it is only dangerous drugs which are prohibited. The special presumption as to knowing the nature will therefore seldom apply to Opium; it will more frequently apply to other drugs. A man might know that he had a white powder, and therefore be in possession of a drug, but he might not know whether it was bicarbonate, a common household drug, or heroin, a dangerous drug of similar appearance. Such a case would resemble that of Sleep supra. The distinction is not applicable in the present case but is mentioned here because counsel argued that the word “possession” is used in different senses in the Ordinance. I do not think that is so. I think the word possession is used consistently in the Ordinance in its ordinary, but imprecise, sense. It has also been said that intention to exercise the power of disposal is a necessary element of possession. This cannot be supported as a part of a general definition. A woman is undoubtedly in possession of her wedding ring but as a rule she does not intend to dispose of it; many are buried wearing it. But she can pawn it, in case of need. Similarly with guilty possession. In general a thief intends to dispose of his loot but the rich collector who filched a rare stamp and the crazy artist who took the Mona Lisa, in order to gloat over them in private, were equally thieves. Intention is a separate matter. The dictionary definition brings in the idea of exclusiveness. It is often said that “possession must be exclusive”. This is ambiguous. Possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. Custody likewise may be sole or joint and it has the same element of excluding others. The main distinction between custody and possession is that a custodian has not the power of disposal. The statement that “possession must be exclusive” is often due to confusion of the fact to be proved with the evidence by which it is to be proved. It is essential to keep this distinction clearly in mind, especially when applying presumptions.”

Next, we refer to the locus classicus case of Chan Pean Leon v. PP [1956] MLJ 237 where it was held:- “Possession” itself as regards the criminal law is described as follows in Stephen’s Digest (9th Edition pg 304): “A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.” To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. It a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly, I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shows such an intention. Or it must be clear that the circumstances in which it is found show such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so.” ANALYSIS ON THE FIRST AND THIRD INGREDIENT OF THE

The existence of drugs as stated in the amended charge i.e.

208.2 grammes of Cannabis was supported by the testimony of the raiding officer: SP 6, the investigating officer: SP8 and most importantly SP5: Dr. Nur Nazihah binti Md Shahari, the government chemist.

The finding of the HCJ that existence of cannabis as defined under the 1st Schedule of the DDA 1952 was also not challenged by learned counsel for the Accused as reflected in the Petition of Appeal. We therefore conclude that the 1st ingredient under charge has been successfully proven by the Prosecution.

Learned counsel for the Accused also did not challenge on the HCJ’s finding on the 3rd ingredient of the charge. In arriving to his finding, the learned HCJ relied on the following evidence:

Since the drugs discovered was more than 200g, the presumption of trafficking under S.37 (da) of the DDA 1952 is thereby triggered.

(ii) The discovery of utensils or weighing equipment showed that the drugs discovered was for purposes of trafficking. This fortifies that the Accused was trafficking in drugs.

We agree, with the findings of the HCJ on both these issues. Whilst, the findings on both the 1st and 3rd ingredient was not challenged by the Accused at this appeal, the same cannot be said about the findings on the 2nd ingredient of the charge.

In arriving to his decision, a finding that the Prosecution has proven this 2nd ingredient, the learned HCJ relied on the following evidence:

Based on the investigation, the Accused informed the police that the access cards and keys found on his body was that of his rented apartment at The Elements, Ampang. He also informed the police that there were illegal goods there.

(ii) Based on this information, SP6 led his raiding team to the said address. Upon reaching, the apartment apartment, SP6 used the 2 keys found on the Accused to open both the wooden door and the grill door of the said apartment.

(iii) Once in the apartment, the Accused led SP6 to a room located on the right side. Thereafter, the Accused took an aluminum container which was located on the bed in the said room and handed it over to SP6 using his right hand.

(iv) Having examined the aluminum container handed over by the Accused, SP6 found drugs. The said drugs and other related items were then taken back to IPD Wangsa Maju.

Based on the conduct of the Accused in giving information to the police, leading them to the location and the discovery of the drugs, the HCJ was satisfied that the prosecution had proven the element of custody, control and knowledge as required under the charge against the Accused. The fact that he managed to give information which led to the discovery of the drugs was complete possession with knowledge. The finding of the drugs lends credence to the information received. This also relates to the conduct of the Accused.

The HCJ also considered other aspects of the case:

Based on investigation, the apartment was rented under the name of the Accused.

(ii) There was no women clothing in the cupboard located in the apartment. Thus, there was no justification to justify the fact that there was a woman staying there.

(iii) The failure to call Zaidatul was explained. Efforts were made by the prosecution to call her as a witness. There was no sufficient evidence for the Court to invoke the presumption of adverse inference for their failure to call her as their witness. More so, the Prosecution’s case was already complete.

(iv) This was a case under Section 27 of the Evidence Act. The fact that there are others who have access to the house is a different issue.

The HCJ’s findings on the 2nd ingredient was severely challenged at the appeal by way of two (2) issues (see para [28] above):

Issue of another person i.e. the Accused’s girlfriend having access to the apartment; and

(ii) The HCJ’s reliance on Section 27 of the Evidence Act is flawed.

The following is a summary of the Accused’s submission on both issues: Issue of another person i.e. the Accused’s girlfriend having access to the apartment

Learned counsel for the Accused started by contending that the HCJ’s reasoning is flawed. The handing over of only one set of keys and access cards to the Appellant did not preclude the creation of a separate set of access cards and keys that could have been in the possession of Umira. This was a possibility that could not be confirmed or denied by the real estate agents namely PW1 and PW3 or the building manager in his cautioned statement Exhibit D45, which stated that the access cards in the possession of the police did not match their records.

According to the Accused, both PW1 and PW3’s had given evidence on the following key points:-

The apartment being rented only to couples as per the owner’s request;

(ii) The presence of Umira during the signing of the agreement and her presence at the apartment subsequently during a visit by PW3 while the Appellant was painting the apartment;

(iii) PW3 stating that he primarily communicated with her because of the language barrier with the Appellant;

(iv) Umira returning the keys almost a month after the incident to PW1 at the lobby of the condominium; and

PW1’s observation of women’s clothing in the apartment.

The above key points in the prosecution’s evidence were not deliberated upon at all by the learned HCJ despite the evidence supporting the Appellant’s defence regarding Umira’s access and role.

Learned Counsel for the Accused further contended that the failure to call Umira as a witness, had amounted to a fatal gap in the prosecution’s case given the fact that both the Appellant and her only moved into the apartment several days before the incident. In this regard, the learned HCJ also did not give due consideration to the evidence of DW2, who showed the phone conversation he had with Umira after the incident to the Learned Trial Judge, in support of the fact that she has access to the apartment to the court.

The learned HCJ also did not consider or evaluate DW2’s sworn testimony that on the day after the incident, Umira who was released had brought DW2 and his friend to the apartment using a set of access cards. THE HCJ’S RELIANCE ON SECTION 27 OF THE EVIDENCE ACT

With reference to the second issue as stated at paragraph [29]

(ii), learned counsel for the Accused contended that Section 27 of Evidence Act should not be used to accept evidence of the alleged information given by the Appellant as the latter part of the information, which amounted to a confession was firstly not information leading to discovery and if anything, Section 27’s application should have been limited to the information regarding the apartment address.

According to him further, the Accused disputes that the information was even given. The lack of precise or contemporaneous record, the absence of any indication on the words or even language used during the questioning, the non-presence of a translator in light of evidence from PW3 regarding the Appellant’s lack of fluency in Malay and English, as well as the Appellant’s evidence regarding undue pressure and oppression from PW6 were factors that supports the exclusion of PW6’s evidence regarding the alleged information given.

In addition, the learned HCJ’s finding that the Appellant is not telling the truth on his fluency in Malay because of the Appellant’s occupation as a recruiter for a company teaching English to Yemen nationals is another flawed logic as a company teaching English had no relevance to the Accused’s fluency in Malay and the Accused did not work as an educator in the company. The learned HCJ ignored key evidence from PW3 on the Accused’s fluency without any reason and made an extremely prejudicial assumption that would have influenced the Court’s decision on whether the information allegedly received by PW6 ought to be admissible under Section 27 of the Evidence Act 1950.

Based on the reasons above, learned counsel for the Accused pleads for the conviction of the Appellant to be set aside.

We begin our analysis of the first issue by looking at the findings by the learned HCJ:

It was the Accused who led SP6 and the raiding team to the apartment concerned;

(ii) Based on investigation, the apartment was rented under the name of the Accused.

(iii) There was no women clothing in the cupboard located in the apartment. Thus, there was no justification to justify the fact that there was a woman staying there.

(iv) The failure to call Zaidatul was explained. Efforts were made by the prosecution to call her as a witness. There was no sufficient evidence for the Court to invoke the presumption of adverse inference for their failure to call her as their witness. More so, the Prosecution’s case was already complete.

Having reviewed the Notes of Proceedings of the trial, we agree with the above findings of the HCJ:

It was indeed the Accused who led SP6 and the raiding team to the apartment which is located at Unit B-22-11 The Elements@Ampang, Jalan Ampang.

(ii) There was ample evidence to proof that the apartment was rented under the name of the Accused. Even if the apartment was to be rented to a couple, there was insufficient evidence to show that the Accused was living in the said apartment with another person called Umira. We conclude so, as there was no women clothing in the cupboard located in the apartment to support this contention of the Accused (see the testimony of SP6 at Enc. 9 page 195). Even if SP1 did say that he found two (2) woman’s underwear when he entered the apartment later on, this per se did not prove that there was another person living in the apartment the entire time.

(iii) On the failure to call Zaidatul, this was clearly explained by SP7 to show that numerous efforts were made by the prosecution to call her as a witness (see Enc. pages 10-17 and also the testimony of the Investigating Officer, SP8 at Enc. 9 page 68). SP8 during re-examination had explain to the Court that SP8 had requested from the management for CCTV recording and access card record to be obtained. However, since the CCTV is under maintenance, the management unable to provide the recording. SP8 also said (see Encl. 9 page 81) from the statement taken from the neighbors, they informed SP8 that they never saw anyone other than the Accused. We therefore agree with the learned HCJ that there was no sufficient evidence for the Court to invoke the presumption of adverse inference for their failure to call her as their witness. More so, the narration of the Prosecution’s case was already complete.

(iv) On the issue that the keys were handed over to SP1 by Amira after the raiding on 9.4.2021, this does not negate the fact that it was the Accused who led the police to the said apartment. It also does not negate the fact that, there was insufficient evidence to show that there was another person living in the very same apartment, taking also into consideration that from the evidence of the prosecution witnesses, the apartment was rented by the Accused himself. In this appeal, in agreement with the learned HCJ, we found the testimony of the witnesses to be credible and there were no such cogent reasons or evidence to the contrary.

On the issue that the statement by the Property Manager (D45) states that the access cards handed over by the police did not match their records, the same statement also explained that the said access cards, could have been issued by the earlier Property Managers (see paragraph 2 at page 72 of Enc. 8). The fact that another person also has access to the very same apartment does not prove that there was another person living there so as to absolve the Accused of any liability for being in possession of the drugs. We conclude so based on the fact that there were no other clothes found in the said apartment (save and except for the two (2) woman’s underwear).

(vi) On the issue of the record of the telephone conversation between SD2 and ‘Amira’ (who was never identified throughout the entire trial) was shown to Court, there was no Section 90A certificate produced to enable such records to be admitted as evidence.

Premise on the above, it is our considered view that learned counsel’s submission for the Accused on this 1st issue has no merit, which now brings us to the 2nd issue.

Before proceeding to answer the question whether the HCJ’s finding that this is case which falls under section 27 of the Evidence Act 1950 (“EA”), perhaps it would be appropriate for us to re-state some of the pre-conditions related thereto. PRE-CONDITIONS FOR THE ADMISSION OF INFORMATION

In the case of Md Zainuddin Raujan v PP [2012] 7 CLJ 715 the Federal Court agreed with the analysis by the trial judge that the pre-conditions for admission of evidence under S.27 EA are as follows:

the information was supplied by the accused after commission of an offence or during the commission of an offence - Choo Teck Soon v. PP [1953] CLJU 16; [1953] 1 LNS 16; [1954] MLJ 63.

(ii) the accused was under the custody of the police at the time of the information was supplied - Soh Teh Sang & Ors v. PP [1964] MLJ 380.

(iii) the information supplied by the accused has caused the discovery of a fact ie, the offending drugs and the said information relates distinctly to the fact discovered – Wai Chan Leong v. PP [1989] 1 CLJ Rep 171, [1989] 2 CLJ 1168; [1989] 3 MLJ 356.

(iv) the fact or thing discovered as a result of the information must be concealed – Yee Ye Mang v. Public Prosecutor [1971] CLJU 156; [1971] 1 LNS 156; [1971] 1 MLJ 380.

the police has no prior knowledge of the fact or thing concealed - PP v. Mohd Farid bin Mohd Sukis & Anor [2002] 8 CLJ 814.

In Hasamuddin bin Talena v Public Prosecutor [2002] 2 MLJ 408, the need to prove the actual words spoken by the accused and the existence of a ‘contemporaneous record’ was given emphasis: “Where the prosecution sought to rely on information under the inclusionary provisions of s 27 of the Evidence Act 1950, approximations were not permitted. In other words, the exact words spoken by an accused had to be proved. Since nothing more than the information given by an accused was admissible, it followed that the information must be exact and recorded in the language or words used by the accused. This strict test had not been met by the facts of the present appeal. The conviction in the present case was entirely unsafe.”

The case of Md Zainuddin Raujan v PP (supra) also referred to the following passage in PP v Hashim Hanafi [2003] 8 CLJ 555 at page 564-565, which stated as follows: “Information given under s. 27 is not a matter that is required by law to be in writing so as to be governed by ss. 91 and 92 of the Act. Therefore, the information must be proved by oral evidence pursuant to. S. 60(b) of the Act. Thus, a written record of the information given by the accused will not by itself be substantive evidence of its contents and it is what the witness deposes in court as having been said by the accused that will be evidence (see Bhagirath). Where the information is contained in a police diary it can only be used for the purpose of refreshing memory (see Public Prosecutor v. Er Ah Kiat [1966] 1 MLJ 9). Where it is contained in any other document it can, at the highest, serve only as evidence of corroboration. It is on this basis that a report prepared by a chemist pertaining to his analysis of drugs cannot be tendered as substantive evidence of its contents but only as corroboration of his oral evidence in court under s. 157 of the Act (see Saw Thuan Teik v. R [1953] MLJ 124; Muhammed bin Hassan v. Public Prosecutor [1998] 2 MLJ 273). The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect of incredible but only to confirm and support what which as evidence is sufficient and satisfactory and credible (see DPP v Hester [1972] 3 All ER 1056). Its role is to confirm other evidence in the sense that it renders that other evidence more probable (see Doney v. R (1990) 171 CLR 207; DPP v. Kilbourne [1973] AC 729). It cannot therefore amount to that other evidence itself. Thus, the record of an information will only enhance the credibility of the witness and the absence of it cannot render the oral evidence of it inadmissible; nor can it be a substitute for the evidence that it is meant to corroborate.”

In Francis Antonysamy v PP [2005] 2 CLJ 481: the need for the caution administered to be proven was given emphasis: “The court can be ‘satisfied’ that the caution was administered as required only with adequate proof of the words used. This can only be done if there has been evidence of the actual words used by the recording officer. In that event the court would be in a position to determine whether the caution that was administered is as prescribed or to the like effect or is something that is different. Oral evidence of the words used is particularly significant in this case as it is subject to appellate review. There is no such oral evidence though the words used appear in the cautioned statement (see para 17); Yap Ee Kong & Anor v Public Prosecutor [1980] 1 LNS 117; [1981] 1 MLJ 144 followed. The result is that there was no evidence before the court in order to be ‘satisfied’ whether the caution that was administered was as prescribed or contain words to the like effect (see para 18). The evidence does not point to the caution being orally administered and therefore, the oral statements of the Appellant should be excluded. We therefore find the Appellant oral statement runs afoul of section 27 of the Evidence Act 1950, and further and in the alternative, the statutory caution had not been administered and should be excluded. The net effect of that would be doubt had been sufficiently created by the Appellant.”

On the issue of the suspects voluntariness in giving evidence, the courts retain a discretion on whether to admit or reject the evidence under section 27 which was obtained by force or duress (in other word, not through voluntariness) of the informer as decided in Goi Ching Ang v Public Prosecutor [1999] 1 CLJ 829: “The information supplied under s.27. which has been found to be involuntary, may be excluded by the Court in the exercise of its discretion. But the court there opined that as the exclusion of the evidence is discretionary the exercise of the discretion will depend on the facts.”

The same position was held in the case of Shohel v PP [2022] 1 LNS 2812. The Federal Court’s decision in Siew Yoke Keong v PP [2013] 4 CLJ 149 however differentiates between a situation where a statement is given and where information such as the act of pointing out which leads to discovery of a fact. In delivering the judgment. Ahmad Maarop FCJ (as he then was) held that for such information to be admissible in evidence, there is no duty on the prosecution to prove voluntariness (see para [28] of the judgment). The rationale as to why the Federal Court decided so will be explained at paragraph [70 below].

In Amathevelli P Ramasamay v PP [2009] 3 CLJ 109, Arifin Zakaria CJM (later CJ), referred to the case of Public Prosecutor v Hashim Hanafi (supra) and rejected the police report (P51) which was tendered as the Prosecution’s evidence on the ground that the requirement of the existence of oral evidence of the information given is mandatory: “It is therefore clear that there must be oral evidence of the information given. P51 cannot be a substitute for it. Accordingly, we hold that P51, the information supplied under s. 27 by the appellant, is inadmissible.’

Last but not least, we recognize that not all cases require for the actual words said by the Accused and the existence of a ‘contemporaneous record’ to be adduced for purposes of admitting evidence under S.27 EA. This proposition was laid down in the case of Siew Yoke Keong v PP (supra). “[22] It is very important to note that s. 27 of the Evidence Act uses ‘information’ instead of ‘statement’. Information cannot be used as synonymous with statement. Information connotes two things - (a) a statement or other means employed for imparting knowledge possessed by one person to another, and (b) the knowledge so derived by the other person. Explaining this in E Karam Din v. Emperor AIR 1929 Lahore 338 Dalip Singh J said: In connection with this it is necessary to bear in mind that the word ‘information’ cannot be used as synonymous with the word ‘statement’. There is no reason why the word ‘information’ should have been used instead of the word ‘statement’ in the section if by ‘information’ statement alone was intended. The word ‘information’ as distinct from the word ‘statement’ connotes two things, namely a statement or other means employed for imparting knowledge possessed by one person to another, and the knowledge so derived by the other person. It is unnecessary to enter into the question whether all means of imparting knowledge by one person to another person are or are not covered by the word ‘statement’ but it is necessary to emphasise the second portion, namely, that ‘information’ also includes the knowledge derived by the person informed from the informant. To me, therefore, it seems clear that when a person deposes simply to the following effect, namely, that from information received from the accused he proceeded to do certain things and discovered certain other things, this statement is by itself relevant and admissible in evidence against the accused. In order to make it irrelevant or inadmissible against the accused, it would not be sufficient merely to put a question to the deponent which tended to show that the information was derived from an oral statement made by the accused, for the fact that there was such an oral statement would not make the statement inadmissible for the reason that the word ‘information’ includes, as already stated, the knowledge derived by the person as well as the means taken to impart that knowledge. (emphasis added) [23] In the same case, Harrison J said: The test for admissibility under this section is in my opinion that the information has borne fruit in discovery and that it is clear that the discovery was the result of the receipt of the information. It is immaterial what may have been the nature of the channel of communication. It is immaterial whether the words spoken or written or the signs or the visible representations, which related distinctly to the fact thereby discovered, constituted the whole or only part of the speech, writing, picture etc. (emphasis added) [24] Karam Din v. Emperor was followed in PP v. Hashim Hanafi [2003] 8 CLJ 555; [2002] 4 MLJ 185 where Augustine Paul J (later FCJ) said: It is therefore clear beyond doubt that the information given by an accused under s. 27 need not be in the actual words used though a written record is desirable. This is justified on the ground that s. 27 uses the word ‘information’ and not the word ‘statement’ which is used in ss. 17–31 of the Act (see Bhagirath v. State of MP AIR 1959 MP 17). In Yee Ya Mang v. Public Prosecutor reference was made at p. 122 to Karam Din v. Emperor AIR 1929 Lah 338 where Dalip Singh J in considering the scope of the word ‘information’ in s. 27 said at p. 340: In connection with this it is necessary to bear in mind that the word ‘information’ cannot be used as synonymous with the word ‘statement’. There is no reason why the word ‘information’ should have been used instead of the word ‘statement’ in the section if by ‘information’, statement was intended. The word ‘information’ as distinct from the word ‘statement’ connotes two things, namely a statement or other means employed for imparting knowledge possessed by one person to another, and the knowledge so derived by the other person. As ‘information’ includes knowledge derived by a person, it can be given in testimony in any form so long as it is within the ambit of the knowledge so derived. [25] That passage in PP v. Hashim Hanafi was quoted with approval by the Court of Appeal in Balakrishnan Purushotaman v. PP [2011] 1 LNS 1722; [2012] 2 MLJ 478 (which decision was affirmed by the Federal Court in Rayuan Jenayah No. 05- 042011(K)). [26] In fact, earlier, in Wai Chan Leong v. PP [1989] 2 CLJ 1168; [1989] 1 CLJ (Rep) 171; [1989] 3 MLJ 356, the Supreme Court had already decided that “information” which was deliberately used by the legislature under s. 27 of the Evidence Act, (unlike statement), included knowledge derived by the person informed by the accused as well as the means used to impart that knowledge. This is clear from the judgment of Gunn Chit Tuan SCJ delivering the judgment of the court: It must be observed that the legislature has used the expression ‘information’ in s. 27 of the Evidence Act and therefore did not intend it to have the same meaning as a statement. Although the expression is not defined in the Evidence Act, unlike a statement, it includes knowledge derived by the person informed by the accused as well as the means taken to impart that knowledge. (emphasis added). [27] The decision in Wai Chan Leong v. PP was followed by the Singapore Court in PP v. Chin Moi Moi (supra) where Yong Pung How CJ said at p. 305: It is material to note that ‘information’ under s. 27 does not only apply to statements. The words ‘whether such information amounts to a confession or not’ clearly indicate that ‘information’ is not only limited to a statement by the accused but also encompasses acts or conduct of the accused which relate distinctly to the fact discovered. This would of course consist of acts like pointing out the place where an article is hidden or where the accused leads the police to the article. As was held by Gunn SCJ in Wai Chan Leong, “information” included knowledge derived by the person informed by the accused as well as the means taken to impart that knowledge. (emphasis added)”

Despite the defence’s suggestion that the apartment was occupied by both the Accused and Amira (this is supported by the presence of woman’s underwear), the presence of such clothing does not mean that no possession was established against the Accused. The crucial question is whether he was so situated with the drugs found in the room, as if the drugs belong to him and that he had the power to deal with the drugs as owner to the exclusion of all other persons, and when the circumstances are such that they may be presumed to intend to do so in case of need.

Whilst it must be shown that he had the intention to deal with the drugs, this can only be proved by inference from the surrounding circumstances of the case. As the Accused was the only person in the house (this is proven by the abundance of clothing of the Accused in the house), the inference would be that he had the power to deal with the drugs as owner to the exclusion of all other persons.

In this regard, proof that the Accused had knowledge of the drugs was adduced vide SP6. It was the Accused who after being questioned by SP6 at IPD Wangsa Maju, that led SP6 and his raiding team to the apartment at The Elements @ Ampang where he later took SP6 into the bedroom and handed the aluminium container containing the drugs to the SP6. At this juncture, it is apposite to note that all the pre-conditions of section 27 EA were duly met in this case as the information supplied by the Accused to SP6 after the commission of the offence during custody at IPD Wangsa Maju; the said information thereafter led to the discovery of the offending drugs from the apartment at The Elements @ Ampang wherein the Accused specifically took SP6 and the raiding team to the bedroom and gave the aluminium container containing the drugs to the SP6. Furthermore, SP6 and the raiding team had no prior knowledge whatsoever regarding the drugs until the Accused’s information that led to the said discovery. The facts above are incontrovertible as established during the trial at the High Court.

Although there was no translator who acted as interpreter between SP6 and the Accused, the questions put by SP6 to the Accused was in simple English. It is a proven fact that the Accused understood English as he was working a recruiter for a company who was teaching English (and not both English and Bahasa Malaysia as stated by the HCJ in his oral deliberation at the end of prosecution’s case, which we view as a marginal error) to foreigners who wanted to apply for employment in Malaysia.

In addition, the evidence of the Accused leading SP6 and the raiding team to the apartment and then handing over the drugs to SP6 would also be relevant under section 8 EA. This would be admissible, irrespective of whether there was any contemporaneous information or absence of caution administered against the Accused (see Siew Yoke Keong (supra) and the Indian Supreme Court decision in Prakash Chand v State, AIR [1979] SC 400).

For the sake of completeness, the provisions of section 8(2) of the Evidence Act 1950 is re-produced below; “Motive, preparation and previous or subsequent conduct

…

The conduct of any party or agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person to an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 – The word “conduct” in this section does not include statement unless those statements accompany and explains acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 – When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant.” CONCLUSION

In the upshot, we are constraint to state that there are no merits in the present appeal and that the conviction against the Accused is safe. In the same breath, we are of the view that the Accused had failed in his defence.

With reference to the sentence passed by the learned HCJ, it is our considered view that the sentence is one that is within the purview of the law and his exercise of discretion which does not necessitate our appellate intervention.

The appeal is hereby dismissed and the Order of the HCJ is affirmed. Dated: 5 January 2026 -Sgd- (MOHD FIRUZ BIN JAFFRIL) JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA Counsel for the Appellant: Goh Cia Yee (Messrs Goh Cia Yee) Counsel for the Respondent: Eyu Ghim Siang Deputy Public Prosecutor (Attorney General’s Chambers)