Adib Nafis Bin Hassane Nafis v Pendakwa Raya (B-05(SH)-612-12/2018)

(a) Anwaruddin bin Mohd Izzudin (“Anwar”);

(b) Mohd Nizam bin Ali (“DW 2”) and

(c) Intan Najuwa bt Abd Wahid (“Intan”). [5] They all had gone there acting on the information given by Anwar. Arriving there the three above were ordered to stay in the police van. The Appellant then was seen at the lobby of Blok C, Neo Damansara, Damansara Perdana, Petaling Jaya, the place mentioned in the charge. [6] PW 3 with other police officers then approached and introduced himself as a police officer to the Appellant. The Appellant turned pale and was in shock. The Appellant was carrying a sling bag, which later was marked as exhibit P11A. The bag was searched and the cannabis stated in the charge was found in the bag. Later PW 5, the chemist confirmed the substance found was cannabis with the weight as stated in the amended charge. [7] Soon after the Appellant was arrested, he was gathered by the police together with Anwar, DW 2 and Intan. Findings at the end of the Prosecution’s Case [8] The learned High Court Judge (HCJ) found a prima facie case at the end of the prosecution’s case. The evidence of PW 3 was comprehensive 4 and he was accepted by the learned HCJ as a truthful and reliable witness. The reaction of the Appellant has a nexus to the fact in issue and giving an inference he had knowledge of the drug in the bag. The conduct of the Appellant is a relevant fact under s. 8 of the Evidence Act 1950 (“EA”) which warranted an explanation of the Appellant under s. 9 of the same. [9] Considering the evidence tendered by the prosecution, the learned HCJ was satisfied that had the Appellant remained silent based on the prosecution’s case, there would be no choice but to convict the Appellant. Therefore the learned HCJ called the Appellant to enter defence. Defence [10] There were two witnesses for the defence before the learned HCJ. The Appellant himself and DW 2. [11] The Appellant testified that he received two calls from Anwar before he was arrested. First, asking him to take Anwar’s bag in the Appellant’s apartment and meet Anwar and second, asking him to wait at the lobby of the apartment as per the address mentioned in the charge and hand over the bag to DW 2 who was Anwar’s driver. [12] The Appellant took the bag and went down to the lobby waiting for DW 2. [13] The Appellant did not take a look inside the bag. He thought there was nothing suspicious. Since he also trusted Anwar, there is no reason to look inside the bag. 5 [14] He was then accosted by three persons who were police officers. One held his hand and asked him what he was doing there at midnight. He answered that he was waiting for his friend, Anwar. [15] The bag was searched and a substance rectangle in shape was found. The Appellant said he did not know what it was. [16] The Appellant said when he was arrested he panicked and was alarmed because he was confronted and his hand was held. It was not because the drug was found in the bag. [17] He had no knowledge of the drug in the bag. [18] He agreed what he said in court is not similar to what he told the police earlier. [19] He said Anwar had always left his belongings in his apartment. Anwar also often slept in his apartment. [20] Under cross-examination by the prosecution he later testified that Anwar stayed and lived in his (Appellant) apartment. [21] He said he told the police he wanted to give the bag to Anwar when the police showed him the rectangle substance. [22] DW 2 who gave evidence for the Appellant said he was the personal driver for Anwar. [23] He was asked by Anwar to meet the Appellant and get something from the Appellant to be given to Anwar. This was the first time Anwar had 6 requested him to do so. He did not know what he was supposed to get from the Appellant. Anwar did not tell him. He did not get to do this as he was arrested together with Anwar and Intan. [24] He said Anwar did not stay together with the Appellant but Anwar often went to the Appellant’s apartment. [25] He arrived at the Appellant’s apartment block together with police officers, Anwar and Intan. He then saw the Appellant was arrested. [26] DW 2 also testified, the bag found on the Appellant was the bag he was supposed to get from the Appellant and be given to Anwar. [27] He admitted he never told the police that he was requested by Anwar to get the bag from the Appellant. Findings at the end of Defence [28] The bag was found on the Appellant. He had possession, custody and control of the bag. This is consistent with the evidence of PW 3. [29] Anwar and DW 2 were arrested at around 11 pm on 20 April 2016, about one hour before the Appellant was arrested. In his testimony, the Appellant said that he received two calls from Anwar the night he was arrested. He did not give the exact time he received the alleged calls from Anwar. [30] It was not probable for such calls to be made because Anwar and DW 2 were already arrested around 11 pm on 20 April 2016. Besides, 7 when Anwar was arrested, he did not have his handphone with him according to PW 3. The Appellant did not challenge this evidence of PW

[31] In addition, DW 2 admitted in court he never told the police that Anwar requested him to meet the Appellant. He only said of his role in court after a few years he was arrested. This is therefore only an afterthought to assist the Appellant. [32] Besides, the Appellant testified after he was arrested he was gathered with Anwar, PW 2 and Intan by the police who took all to his apartment. This was actually the best time for the Appellant and PW 2 to tell the police of their respective roles. They did not. [33] Further, when PW 3 was cross-examined by the defence, he was never asked about the Appellant wanting to give the bag to Anwar. PW 3 should have been asked about this when he testified. Not asking this amounted to an afterthought on the part of the Appellant. [34] To make matter worse, when PW 3 was cross-examined by the defence, he testified that Anwar told him that the Appellant was the source of the drug obtained by Anwar. (Page 139 Volume 2 [2] of the Appeal Record). This is further compounded by the fact that the defence never challenged this evidence of PW 3. [35] The Appellant said Anwar stayed with him in his apartment. But DW 2, the Appellant’s own witness said Anwar did not stay with the Appellant. This is a clear contradiction between the Appellant and DW 2. 8 [36] On top of that, there was no explanation at all from Anwar himself as the defence chose not to call him as a witness. As he was not called, the evidence of the Appellant and DW 2 cannot be verified. [37] The Appellant could have seen what was inside the bag but he chose not to do so. He had about seventeen minutes between the time he took the bag and the time he was arrested. He said that the bag belonged to Anwar but this is just a bare denial of the fact that he had the custody and control of the bag. [38] However, the learned HCJ was of the finding that the Appellant was not trafficking the drug. [39] The learned HCJ said that mere possession of the drug does not mean that the Appellant was also trafficking the same. [40] When the Appellant testified that he was not trafficking the drug, the learned HCJ found that the prosecution did not challenge this evidence. According to the learned HCJ, the failure to challenge meant that the prosecution accepted the testimony of the Appellant that he was not trafficking the drug. [41] Thus the learned HCJ found that the Appellant had raised a reasonable doubt for the charge of trafficking the drug. [42] Nonetheless the learned HCJ convicted the Appellant for the offence of possession of the drug under s. 6 of the Dangerous Drugs Act 1952 (“DDA”) punishable under s. 39 A (2) of the DDA. After mitigation, the learned HCJ sentenced the Appellant to 10 years imprisonment from date of arrest and 10 strokes of the rotan. 9 Grounds of Appeal [43] For the appeal before us, counsel for the Appellant during oral submission said he had only two related legal issues to argue. These are as follows:

(a) The learned HCJ was legally wrong to require the Appellant to call Anwar as a witness;

(b) In any event, the prosecution failed to make Anwar available for the Appellant to call after Anwar was offered as a witness by the prosecution to the Appellant. [44] For the first issue above, it was argued that learned HCJ was wrong to invoke adverse inference pursuant to s. 114 (g) of the Evidence Act 1950 (“EA”) against the defence for not calling Anwar. The learned HCJ was wrong to lay the burden on the defence in respect of this issue regarding the calling of Anwar as a witness. Appellant submitted the legal burden does not lie on him as the accused. In this regard the Appellant submitted it was wrong for the learned HCJ to say as follows: Again I need to repeat that it is the defence’s duty to call Anwar to give evidence, for he was the one who could explain or shed some light so as to show some semblance of truth in the accused’s evidence. [45] For the second issue, it was submitted that although Anwar was offered by the prosecution to the defence to be called as a witness, the prosecution failed to ensure that Anwar was indeed available to be called. 10 Our Analysis and Decision [46] First, it is important to note what was said by the learned counsel for the Appellant during oral hearing for the present appeal. The records will show that the learned counsel for the Appellant emphatically told this Court that he had only two related legal issues to argue in respect of the appeal. And as indicated earlier, the two legal issues are with regard to the calling of Anwar as a witness. [47] We need to stress this as it is the Appellant’s own choice to rely only on these issues in respect of the appeal. And he was assisted by able counsel in deciding this. He is of course free to make this determination. Of course, no one is forcing him to so decide. [48] However, the effect of this is quite obvious and far-reaching. It means he accepted the other grounds explained by the learned HCJ in convicting and sentencing him. This should include the finding of the learned HCJ that the Appellant had possession, custody and control of the bag containing the drug. That also has the effect and would mean that we hearing the appeal should refrain from addressing the other grounds of the learned HCJ in convicting and sentencing the Appellant. [49] We are therefore left to determine only these two related issues. Our approach in confining ourselves to these two related issues for the present appeal is not without support. There are a number of decided cases that showed when grounds of appeal are not pursued in the appeal proper, appellate courts have proceeded to hear the appeal only on the grounds maintained by the appellants. 11 [50] One such case is the Court of Appeal’s case of Alan Setiawan v Public Prosecutor [2012] 5 MLJ 149 where twelve grounds were set in the petition of appeal but only three grounds were proceeded with and the Court of Appeal gave its decision based on these three grounds only. [51] In another Court of Appeal’s case of Muhammad Razzaq Bashir Ahmed v Public Prosecutor 2017 MLJU 1685 the Appellant in this case had two grounds of appeal as follows:

(a) Credibility of one of the prosecution’s witness; and

(b) There was only passive possession of the drug. [52] The appeal was only heard on the first ground as the Appellant chose not to proceed on the second ground. [53] Similarly is the Federal Court’s case of Joginder Kaur & Anor v Sohan Singh & Anor & Anor [1984] 2 MLJ 54 where the appeal came before the Federal Court on a probate matter. In this case the memorandum of appeal contained ten grounds. However, the appellants' counsel in court abandoned all including the allegation of fraud and proceeded to argue only on two points. The Federal Court proceeded to hear the two grounds of appeal and disposed the same on those two grounds. [54] Yet another case that did not proceed to hear the ground of appeal when it is abandoned is the Supreme Court’s case of Minister of Labour, Malaysia v Lie Seng Fatt [1990] 2 MLJ 9. In this case, the Supreme Court observed initially there were three grounds challenging the decision of the Minister who refused to refer a matter to the Industrial Court. When the case came up before the Supreme Court for appeal, there were only 12 two grounds left. Hence the appeal was heard on those two grounds only as the other ground had been abandoned by the Appellant. [55] Thus we shall address the two related issues as follows. [56] First, it is trite that the burden to prove the case lies on the prosecution. The defence therefore has no duty to call Anwar. In Goh Ah Yew v Public Prosecutor [1949] MLJ 150, it was said as follows: … that an accused person is at liberty to offer evidence or not as he thinks proper and no inference unfavourable to him can be drawn because he adopts one course rather than the other and that therefore the Deputy Public Prosecutor in this case was wrong in inviting the assessors to draw an inference against the appellant by reason of his failure to call a witness who was present in Court and available. …that in a criminal prosecution the onus of proof is upon the prosecution and there is no obligation upon the prisoner of proving facts especially within his own knowledge and that therefore the Deputy Public Prosecutor at the trial was wrong in submitting that the burden of proving that the firearm carried by the appellant was capable of firing was shifted in some way to the appellant. [57] However perusing the learned HCJ’s Grounds of Judgment, we are unable to find that the learned HCJ had invoked adverse inference pursuant to s. 114 (g) of the EA for the failure of the Appellant to call Anwar. It is simply wrong for the Appellant to say that the learned HCJ had invoked this statutory provision. There is simply no evidence to support the Appellant’s assertion. [58] Nonetheless, it is trite that it is always the prosecution’s duty to ensure that a witness offered to the defence must be made available to be called. It is not sufficient for such witness to merely be offered to the 13 defence. Thus although Anwar was offered by the prosecution to the defence to be called as a witness, the prosecution eventually failed to ensure Anwar was in court to be called as a witness for the defence. It is trite that when anyone is offered by the prosecution to be called as a witness, it is incumbent for the prosecution to ensure the presence of that person to the defence. (See Court of Appeal’s case in PP v Asnawi Yusuf [2012] 4 MLJ 16; [2012] 3 CLJ 41). Therefore it would be wrong to fault the Appellant in not calling Anwar. [59] Be that as it may, is that the end of the matter to conclude the Appellant must be acquitted and discharged? Would the requirement imposed by the learned HCJ for the defence to call Anwar mean that the conviction and sentence could not be sustained? Likewise, would the prosecution’s failure to ensure the availability of Anwar to be called mean that the conviction and sentence must be set aside? [60] We do not think so. We think that it is still incumbent on us to scrutinise the whole evidence available to see whether the finding of the learned HCJ that the defence must call Anwar and the failure of the prosecution to ensure the availability of Anwar would mean a reasonable doubt had been cast on the prosecution’s case. [61] With respect, independently of these two related issues, we are of the finding that the defence has failed to raise a reasonable doubt on the prosecution’s case. Putting these issues aside and even when these issues are decided in the defence’s favour, there are other considerations that will show the prosecution had proven the case beyond reasonable doubt, at least for the offence of possession of the drug. 14 [62] First is the fact that the defence did not even question or challenge the prosecution’s witnesses regarding the defence that the bag belonged to Anwar. Even PW 3, the raiding officer was not cross-examined on this. The defence never pointed out to the prosecution’s witnesses it was not the Appellant’s bag and therefore he had no knowledge of the drug. The defence never ever proposed this to the prosecution’s witnesses. Why was this not proposed to the prosecution’s witnesses when they were cross-examined by the defence? [63] Further, the Appellant testified that he did tell one of the police officers when he was arrested that the substance found in the bag was meant to be given to Anwar who had requested the bag to be given to him. But this was never raised by the Appellant when the prosecution’s witnesses testified including PW 3. The Appellant did not put any questions to any of the prosecution’s witnesses to suggest that he had wanted to hand over the bag to Anwar who is said to own the bag. Why didn’t the Appellant ask the prosecution witnesses regarding this? It is not remote to conclude that the prosecution’s witnesses were not asked about this as this is an afterthought on the part of the Appellant. This was also not suggested to the prosecution’s witnesses so as not to allow these witnesses to rebut this contention of the Appellant. [64] Besides, at the defence’s stage, the Appellant testified that Anwar told him to hand over the bag to DW 2. This defence was not raised during the prosecution’s stage. This was not proposed to any of the prosecution’s witnesses when they testified in court. In fact, at the prosecution’s stage, the Appellant unequivocally gave evidence that the bag was to be handed over only to Anwar, without mentioning DW 2 at all. 15 [65] To make it worse, when the Appellant testified, he was cross-examined by the prosecution and unequivocally he admitted that all he said during examination in chief were different from what he told the police (Page 291 Volume 2 [4] of the Appeal Record). This would include the Appellant’s assertion that the bag belonged to Anwar and he was merely to hand over the bag to him. As a consequence, by his own admission, the Appellant had contradicted his testimony because he admitted what he said in court was not what he told the police. [66] Further, when the Appellant testified, he said that Anwar had contacted him to get the bag. However when the Appellant was arrested, PW 3 gave evidence that the Appellant had no handphone with him. PW 3 was not challenged by the defence on this. [67] And in his testimony, the Appellant did not say he was contacted by Anwar using someone else telephone. This indicates that it is untrue for the Appellant to testify that Anwar had contacted him to get the bag. [68] In addition, DW 2 also never told the police that when he was arrested, he was supposed to get the bag from the Appellant for Anwar. What is the reason DW 2 did not tell the police this alleged fact a few years ago? Why wait a few years later to tell this in court? The reason is simply because this is just an afterthought. A few years later it would be much easier to give this version of event after it is thought over. [69] DW 2 also contradicted the testimony of the Appellant on a material point. He said Anwar did not stay together with the Appellant but Anwar often went to the Appellant’s apartment. This is quite different from the 16 evidence of the Appellant who said Anwar stayed with him in the same apartment. This is material contradiction and both had wanted to show that the bag in which the drug was found belonged to Anwar and not the Appellant. In the case of the Appellant, he wanted it to be believed because Anwar had wide access to the same apartment and purportedly was staying there, the bag too belonged to Anwar. But this cannot be true as both DW 2 and the Appellant had contradicted each other on this material point. In fact DW 2 denied Anwar was staying with the Appellant (Page 299 Volume 2 [4] of the Appeal Record). [70] In fact the Appellant himself during examination in chief by his counsel said Anwar likes only to “lepak” at his apartment (Page 286 Volume 2 [4] of the Appeal Record). But he changed his evidence only when he was cross-examined by the prosecution to say that Anwar stayed with him (Pages 292 and 293 Volume 2 [4] of the Appeal Record). [71] DW 2 also admitted he never told the police that he was requested by Anwar to get the bag from the Appellant (Page 305 Volume 2 [4] of the Appeal Record). If it is true that DW 2 was requested by Anwar to get the bag, surely DW 2 would have told the police so, soon after he was arrested or immediately soon after the Appellant was arrested. It must not be forgotten that DW 2, Appellant, Anwar and Intan were all gathered together by the police after the arrest of the Appellant. Why can’t DW 2 tell the police this when they were gathered together then? Why must DW 2 say this only in court more than two years after all of them were arrested? It is only fair to conclude this is more likely an afterthought. [72] All these do not depend on the fact that it was wrong for the learned HCJ to require the defence to call Anwar or for the prosecution not to make 17 available Anwar to be called as a witness. Even if Anwar was made available and indeed testified for the Appellant, he still would not be able to answer those questions above. The questions above are for the Appellant and DW 2 to answer, not Anwar. And both the Appellant and DW 2 did not answer these questions by way of their testimonies in court. To reiterate, these questions are as follows:

(a) Why didn’t the Appellant ask any of the prosecution’s witnesses regarding his assertion that the bag was not his and therefore he had no knowledge of the drug;

(b) Why didn’t the Appellant ask any of the prosecution’s witnesses regarding his assertion that the bag belonged to Anwar;

(c) Why didn’t the Appellant ask any of the prosecution’s witnesses regarding his version that he wanted to hand over the bag to Anwar who is said to own the bag;

(d) Why didn’t the Appellant ask any of the prosecution’s witnesses regarding his assertion that Anwar told him to hand over the bag to DW 2.

(e) After he was arrested, why didn’t DW 2 tell the police he was supposed to get the bag from the Appellant for Anwar;

(f) Why can’t DW 2 tell the police he was supposed to get the bag from the Appellant for Anwar when he was gathered together with the Appellant, Anwar and Intan? [73] In Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 the Federal Court in its judgment (at page 213) said: 18 On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness's testimony. [74] Likewise for the present case, the Appellant did not cross-examine the prosecution’s witnesses regarding (a) to (d) above. Therefore as a general rule, the Appellant accepted the prosecution’s case that the bag belonged to him and not Anwar. This would mean there is sufficient evidence for the conviction of the Appellant for possession of the drug and the defence has not created a reasonable doubt on the prosecution’s case. More so when we consider what we shall explain hereafter. [75] Despite the limited scope of the appeal as explained, in an abundance of caution, we will also highlight and evaluate the evidence adduced to show that indeed the Appellant had rightly been convicted and sentenced for the offence of possession of the drug. [76] First, the evidence is that the Appellant had the sling bag on him when he was confronted by several police officers. There was no one else with the Appellant when he was arrested. He had close proximity with the drug as he was slinging the bag all by himself. Based on these facts, the learned HCJ found that the Appellant had possession, custody and control of the bag. In this regard, it is relevant to note the Federal Court’s case of Public Prosecutor v Denish a/l Madhavan [2009] 2 MLJ 194 on the issue of possession where it is said as follows: The idea of exclusivity features in the meaning of 'possession' in criminal law as one of the elements necessary to constitute possession. As Taylor J said in Leow Nghee Lim v Reg [1956] MLJ 28: 19 … 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. Thomson J in Chan Pean Leon v Public Prosecutor [1956] MLJ 237, said that 'possession' for the purposes of criminal law involves possession itself — which some authorities term 'custody' or 'control' — and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th Ed), at p 304), in which the exclusive element mentioned by Taylor J appears: A moveable 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. Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession. [77] Taking note of the above case, since the Appellant was slinging the bag alone and there was no one else with him at that point of time, he too had the power to exclude other persons from the enjoyment of the contents of the bag. 20 That would constitute possession of the drug by the Appellant. It is also in evidence that the Appellant admitted he had carried the bag (Page 288 Volume 2 (4) of the Appeal Record). [78] On knowledge of the drug inside a bag, the Court of Appeal in the case of Chan Kim Seng v Public Prosecutor [2016] 3 MLJ 80 approved the findings of the trial judge. Evidence led in this case showed the accused was holding to the bag containing the drug while sleeping on a chair. The trial judge found as follows: In my view, the accused by physically holding on to exhibit P11 (a) raises the logical inference that the accused has not only knowledge of the contents in exhibit P11 (a) and control over them, but also their composition. Thus, the prosecution has proven the element of possession. [79] Similarly in the present appeal, by having the bag slung on him, the Appellant too had knowledge of the contents of the bag i.e. the drug. [80] Another case of relevance and where the facts are quite similar to the present case is the Court of Appeal’s decision in Zainuddin bin Abbas lwn Pendakwa Raya 1 MLJ 309 where it was held as follows: Di dalam membuat dapatan bahawa perayu mempunyai pengetahuan tentang dadah di dalam beg yang disandang oleh perayu, hakim bicara telah mengambilkira keterangan SP3 dan SP4 seperti dinyatakan di atas yang menunjukkan bahawa ketika pihak polis sampai di hadapan restoran tersebut, tidak terdapat sesiapa melainkan perayu yang sedang menyandang beg eksh P7; bahawa tidak terdapat motosikal di sekitar kawasan itu; bahawa ketika polis memperkenalkan diri, perayu terkejut dan cuba melarikan diri dan bahawa perayu berjaya ditangkap selepas berlaku pergelutan. Kami berpendapat hakim bicara tidak khilaf dalam menerima keterangan SP3 dan SP4 dan 21 membuat inferens bahawa dalam keadaan itu, perayu mempunyai pengetahuan tentang dadah berbahaya tersebut, lebih-lebih lagi apabila pasport perayu juga dijumpai di dalam beg yang sama. Ketiadaan cap jari atau DNA perayu pada paket plastik (eksh P5A) yang mengandungi dadah berbahaya itu, pada pendapat kami tidak menjejaskan kes pendakwaan memandangkan wujudnya keterangan terus daripada saksi-saksi pendakwaan (lihat Public Prosecutor v Mansor bin Mohd Rashid & Anor [1996] 2 MLJ 560). [81] We are of the view that the learned HCJ was perfectly entitled to make the finding that the Appellant had possession, custody, control and knowledge of the drug having regard to the cases highlighted above. [82] Are we able to disturb this finding of the trial judge who enjoyed the benefit of hearing witnesses at first hand, unlike we hearing the appeal at the appellate stage? Would it be safe for us to disturb the finding by the learned HCJ? Generally speaking, we should not disturb the finding of the trial judge. The trial judge had the benefit of hearing the witnesses and therefore better able to make the finding of facts. (See Court of Appeal’s cases of Fang Jin Zhong v Pendakwa Raya [2015] MLJU 2221 and Le Ngoc Thu v PP [2018] 1 LNS 984). [83] For the present appeal, the Appellant cited the Supreme Court’s case of Gooi Loo Seng v Public Prosecutor [1993] 3 CLJ 1 that said as follows: We need hardly add, that even if the appellant had known of the presence of the heroin in his bedroom, that by itself would not have been sufficient to establish that he was in possession or in control of it given the fact that others too, and certainly his girlfriend Tan Ah Kwai, had access to the bedroom and could have concealed the heroin there. At the end of the day, this was 22 a case of the proverbial cap which might have fitted not just the head of the appellant but that of others as well. [Emphasis Added] [84] The above case in our view is distinguishable on facts. In that case, the accused’s girlfriend also had access to the bedroom. Therefore the accused cannot be found to have exclusive possession of the drug. This obviously is different from the present appeal where the drug was found in the bag carried alone by the Appellant. Hence we are unable to follow the decision of the case above. [85] There is also no reason for us to disturb the sentence of 10 years imprisonment from the date of arrest and 10 strokes of rotan that was imposed by the learned HCJ. The sentence is appropriate considering all the circumstances of this case. In sentencing the Appellant, the learned HCJ had also correctly taken into account the mitigating factors as follows:

(a) The Appellant’s age of 19 years and 6 months;

(b) The Appellant is the eldest child in the family;

(c) The Appellant regretted his action and promised not to repeat his action;

(d) The Appellant promised not to be involved in drugs activities; and

(e) The Appellant is a bright student and wanted to further his studies. [86] In the Court of Appeal’s case of Ganesan a/l Nachiappan & Ors v Public Prosecutor [2002] 3 CLJ 302, Haidar Mohd Noor JCA (as he then was) pointed out the scope of an appellate court in reviewing sentence as follows: 23 The power of sentencing given to a trial court is a discretionary one and in order for us, as the appellate court, to disturb the sentence imposed, we must be convinced that the trial judge had erred in applying the correct principles of sentencing or had embarked on some unauthorised or extraneous exercise of discretion (see Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256 and Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83). Conclusion [87] The Appellant chose to limit his ground of appeal on the issue of Anwar as a witness, be it for the wrongful decision by the trial court on the need to call Anwar or that Anwar was not in any event made available to be called. Since the Appellant chose this restrictive approach in pursuing his appeal, he should be bound by his stand. He should be concluded to have accepted the other findings of the learned HCJ including that the bag containing the drug was in his possession. [88] Further, whether Anwar should not be required to be called by the defence or Anwar was not made available, does not affect the prosecution’s case. This is because the fact remains the defence did not cross-examine the prosecution’s witnesses on the Appellant’s defence that the bag belonged to Anwar. This failure to cross-examine means the Appellant could not have created a reasonable doubt on the prosecution’s case. Besides, when the Appellant testified too, he admitted that all he said during examination in chief were different from what he told the police. [89] DW 2 also did not inform the police after he was arrested that he was supposed to get the bag from the Appellant for Anwar. This shows it 24 was only an afterthought for him to say so only in court, long after he was arrested. [90] As narrated, the Appellant was arrested while slinging the bag all by himself. The case law highlighted indicate this would mean he had custody, control and possession of the bag and knowledge of the drug in that bag. [91] For all the reasons explained, we are unanimous in dismissing the Appellant’s appeal. Accordingly we would affirm the High Court’s decision to convict and sentence the Appellant for possession of the drug. Dated: 7th September 2020 Sgd ABU BAKAR JAIS Judge Court of Appeal Malaysia Counsel: For the Appellant: Tetuan R. Nethaji Rayer & Co. (Advocates & Solicitors) For the Respondent: Deputy Public Prosecutor (Attorney General’s Chambers)