Ahmad Faridz Bin Mohd Fadzil v Pendakwa Raya (AB-42S-4-07/2024)

The charges were as follows: Pertuduhan Pertama 25 Bahawa kamu pada 13/04/2022 jam lebih kurang 1545 hrs di alamat rumah Lot.1417 Taman Menteri, 34850 Changkat Jering, dalam Daerah Taiping di dalam Negeri Perak telah bagi pihak diri kamu menanam tumbuhan jenis cannabis dari mana cannabis boleh diperolehi secara langsung dan dengan itu kamu telah melakukan kesalahan dibawah seksyen 6B(1)(a) Akta Dadah 30 Berbahaya 1952 dan boleh dihukum dibawah seksyen 6B(3) Akta yang sama. Hukuman dibawah seksyen 6B (3) Akta Dadah Berbahaya 1952 jika disabitkan kesalahan hendaklah dipenjara seumur hidup dan disebat tidak kurang daripada enam sebatan Pertuduhan Pindaan Kedua 5 Bahawa kamu pada 13/04/2022 jam lebih kurang 1545 hrs di alamat rumah Lot.1417 Taman Menteri, 34850 Changkat Jering, dalam Daerah Taiping di dalam Negeri Perak telah ada dalam kawalan kamu 13.77gram dadah berbahaya jenis cannabis. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh 10 dihukum di bawah Akta yang sama. Hukuman di bawah Akta ini jika disabitkan kesalahan boleh dikenakan denda tidak lebih daripada dua puluh ribu ringgit atau dikenakan hukuman penjara selama tempoh tidak lebih daripada lima tahun penjara atau kedua-duanya 15 sekali. Pertuduhan Tambahan Bahawa kamu pada 13/04/2022 jam lebih kurang 1545 hrs di alamat rumah Lot.1417 Taman Menteri, 34850 Changkat Jering, dalam Daerah Taiping di 20 dalam Negeri Perak telah ada dalam kawalan kamu 0.98gram biji-biji tumbuhan jenis cannabis dimana cannabis boleh diperolehi. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Akta yang sama. 25 Hukuman Denda boleh sampai RM20,000 atau penjara sampai 5 tahun atau kedua-duanya sekali.

For the first charge of cultivating cannabis plant, the Appellant was 30 sentenced to life imprisonment of 30 years from the date of arrest 13.4.2022 and 6 strokes of the rotan. He was sentenced to 2 years imprisonment from the date of arrest in regard to the charge of cannabis possession and another 2 years imprisonment for the additional charge of possession of cannabis seeds. All sentences were ordered to run 35 concurrently from the date of arrest.

For the record, since he was charged on 22.2.2022, the Appellant was granted numerous postponements to enable him to appoint counsel to represent him due to the gravity of the offence. Trial was fixed on 17- 40

20.1.2023. On 17.1.2023, he told the Court that he was asked to sign a letter by a representative from YBGK to enable them to represent him and for an adjournment. The DPP did not object and the trial was re-scheduled to 13-16.3.2023 and a mention date fixed on 1.2.2023 for the YBGK counsel to attend court. However, on the appointed date, the YBGK 5 counsel did not appear in court and the matter was further adjourned to 17.2.2023. Again, on the appointed date the said counsel did not attend court and the Sessions Court Judge (SCJ) informed the Appellant that he would have to conduct the trial himself and the March trial dates were maintained. 10 [5] The SCJ was careful to record that she had explained the proceedings to him and gave guidance on how to conduct the case since he was unrepresented. A total of 6 prosecution witnesses testified and the case was adjourned to enable the Appellant to prepare a written 15 submission as he wished to do so. On 14.11.2023, he handed his written submissions and asked to be allowed to file a written reply, which the SCJ obliged. On 8.12.2023, the Appellant handed in his written reply submissions and the case was adjourned to 17.1.2024 for decision at the end of the prosecution case. 20 [6] On 17.1.2024, after being satisfied on a maximum evaluation of the evidence that the prosecution has proved its case at the prima face stage, the SCJ called for his defence. The SCJ explained the 3 options and the Appellant chose to give evidence under oath. He also told the court that 25 he wanted to call his sister, Husna, who was offered by the prosecution as his witness. The case was adjourned to 19.2.2024, whereupon that date, he informed the court that he did not wish to call his sister as a witness. The defence case was conducted on 19.2.2024 and 5.3.2024 where after completing his testimony, the Appellant closed his case. Again, the parties had prepared their written submissions and written reply submissions. The case was fixed for decision on 28.6.2024. Upon re-evaluating the prosecution case against the defence presented by the Appellant, he was found guilty and convicted on all charges by the SCJ 5 after finding that he was unable to raise a doubt against the prosecution case by his defence. These can be found in the Notes of Evidence and chronology drawn up in pages 2-12 of the grounds of judgment of the SCJ. THE APPEAL 10 [7] The appeal was heard before me on 7.3.2025. Counsel for the Appellant (from YBGK) despite at first only making a short submission and stated that he relied upon his written submissions, later argued substantively after hearing the reply by the learned DPP. Based on the 15 overwhelming evidence against the Appellant, the Court found it fit to pronounce its decision immediately after the end of the submissions. There was no serious misdirection in the judgment of the SCJ that would enable the Court to interfere with her findings of fact. The sentences passed were also within the ambit of the law and not manifestly excessive 20 given the fact that he was found guilty of cultivating a cannabis plant and had also in his custody and control some cannabis and cannabis seeds. [8] A total of 7 witnesses testified for the prosecution as follows: 25 SP1 - Insp. Kamarul Ariffin bin Kamaruzaman (Raiding Officer); SP2 - Zurina binti Ramli (Chemist); SP3 - Sarjan Hashim bin Ibrahim (Storekeeper); SP4 - D/Sarjan Muhamad Akhir bin Muhamad Isa (Photographer); SP5 - D/Kpl 162653 Mohd Zaha bin Ibrahim (Raiding Team); 30 SP6 - Hani bt Mohamad Nor SP7 - Insp. Mohd Azree bin Mohd Azman (Investigation Officer). PROSECUTION CASE [9] On 12.4.2022 around noon, SP1 received a tip-off that a Malay man 5 was involved in cultivating cannabis plant at Lot 1417 Taman Menteri Changkat Jering, Perak. SP1 and his team from the Bahagian Siasatan Jenayah Narkotik, IPD Taiping went to the said address and conducted a surveillance until 6.00pm on the same day around the area of the house. They were stationed at an unoccupied house next to the target house, and 10 pemerhatian dan aktiviti risikan di sekeliling rumah tertuduh. the surveillance carried out, it was confirmed that a Malay man was indeed involved in cultivating cannabis plant there. During the surveillance, the raiding team could see the movements of the Malay man (who was later 15 identified as the Appellant) who went in and out of the house through a back door towards a hut at the back of the house. They also did not see anyone else with the Appellant at the hut during that time. [10] They did not arrest the Malay man on the first day but returned to 20 the house at Lot 1417 the next day 13.4.2022 around noon (after a morning briefing with the raiding team at 10.00 am.) There were 2 teams conducting surveillance on the house, one at the back and one at the front area of the house. The team were watching the house from a distance of 10 20 meters away. They were not always static but moved around from 25 time to time. SP1 first saw the Malay man at the back of the house going to and from the hut at 1.30 pm and the second time he noted it was 2.45 pm. He only saw the man holding something in the hut but could not see it clearly then. Then at 3.45 pm, SP1 and his team raided the place and went straight to the back of the house. The gate and backdoor were closed but unlocked. The distance from the backdoor to the hut was about 5 foot-steps away. The Appellant was detained at the hut while he was seen standing about 1 foot away from the flower-pot containing a plant suspected to be cannabis. Upon SP1 identifying himself as police, the 5 Appellant looked frightened and shivering. There were altogether 3 plants suspected to be cannabis plant in the hut as can be seen in the photographs. [11] One of his team members guarded the plants while SP1 and a few 10 other policemen went into the house. SP1 and the Appellant together with the team members entered one of the rooms which was later confirmed 3 small plastics with some dried plants and a pink-colored box with 6 plastic tubes and 1 straw tube suspected to contain cannabis seeds in it; the box 15 was without a lid and the items therein could be clearly seen. SP1 seized the items and kept them himself. He proceeded to inspect the other rooms in the house. The Appellant s mother and sister were in one of the 3 rooms in the house. SP5 who was also one of the team members was called to 20 [12] SP1 arrested the Appellant and seized the 3 plants and brought them back to the police station with his team. All the seized items were weighed, documented (marked) and a police report made by SP1 (refer to P1 in RRJ3). Then SP1 handed over the Appellant and the seized items 25 to SP7. SP7 kept the seized items in his room under lock and key. He watered the plants everyday and 2 days later, SP7 sent them to be analysed by the Government Chemist SP2 at the Chemistry Department (refer to P11 of RRJ3). After they were analysed and re-packed, SP7 collected them with the Chemist Report dated 25.7.2022 (refer to P14 in RRJ3) on 8.8.2022. The Chemist Report confirmed the 3 plants were cannabis each weighing 26.3 grams, 43.3 grams and the smallest was 2.7 grams (refer to photographs P5A-E in RRJ3). The 3 plastic packets contained a total of 13.77 grams cannabis and the plastic tubes and straw 5 contained a total of 0.98 grams of seeds which had traces of Tetrahydrocannabinols. Cannabis is defined in s.2 of the DDA 1952 and Tetrahydrocannabinols is listed in the First Schedule of the Act. The exhibits were later sent to SP3 to be kept in the Setor Barang Kes. 10 EVALUATION AND FINDINGS OF THE COURT [13] The crux of the appeal by the Appellant was on the issue of access to the premises where the cannabis plants were found and that the SCJ 15 analyse this later in this Grounds of Judgment but it is necessary in that regard to set out the principles of law on the duty of the courts in a criminal trial, the standard of proof and the law on possession of dangerous drugs. [14] At the end of the prosecution case, the duty of the Court is to decide 20 based on a maximum evaluation of all the evidence adduced by the prosecution whether it has proved a prima facie case as provided under s. 173(f)(i) of the Criminal Procedure Code (CPC). A prima facie was explained succintly by Justice Augustine Paul (as His lordship then was) in Balachandran v PP [2005] 1 AMR 321 as follows: 25 prima facie case is one that is sufficient for the accused to answer, and the evidence adduced must be such that it can only be surmounted by evidence in rebuttal. The force of that evidence must, if unrebutted, be sufficient to induce a state of belief that the facts as they stand are a stated in the charge. In order to 30 a positive evaluation of the credibility and reliability of all the evidence adduced to determine whether all the elements of the offence have been established. If the evidence is unrebutted, and the accused remain silent, he must be convicted. case is whether there is sufficient evidence to convict the accused if he chooses to remain silent, which if answered in the affirmative means that 5 a prima facie case has been made out. This requires a consideration of it exists, cannot lead to the finding of guilt of a prima facie case having . [Emphasis added] 10 [15] This Court is also guided by the decision in the case of PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 where the Federal Court held: 15 its totality to a maximum evaluation. Carefully scrutinise the credibility of each may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused; (ii) ask yourself the question: if I call upon the accused to make his defence and 20 he elects to remain silent am I prepared to convict him on the evidence now prima facie case has n 25 [16] The elements of the offences to be proved are that: i. an accused must have custody or control of the drugs and have knowledge that the drugs are dangerous drugs; and ii. the drugs are listed in the Dangerous Drug Act 1952. 30 [17] The Federal Court in the case of PP v Denish a/l Madhavan [2009] 2 CLJ 209 discussed 'possession' and amongst other, stated: "Thompson J. in Chan Pean Leon v. Public Prosecutor [1956] 22 MLJ 237, said "possession" for the purposes of criminal law involves possession itself - which some authorities term "custody" or "control" - and 35 knowledge of the nature of thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th Edition, 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 powers to deal with it as owner to the exclusion of all other persons, and when the 5 circumstances are such that he may be presumed to intend to do so in case need.' Once the elements needed to constitute possession are established, including the element of exclusive power to deal, when what is 10 established is possession, not exclusive possession. So much for exclusive possession." [Emphasis added] [18] Having scrutinised the whole of the evidence adduced, I was satisfied that prima facie, the prosecution had proved all ingredients of the 15 offence. I was also satisfied that there was no break in the chain of evidence in respect of the dangerous drugs seized by SP1, then passed to SP7 for marking and safekeeping until they had been kept in the store by SP3 after the chemical analysis was conducted by SP2. I found that the drugs exhibited in Court were the same drugs seized by SP1: 20 Munusamy Vengadasalam v PP [1987] CLJ (Rep) 221. mother (SP6) also confirmed the plants that she saw were the same as the ones shown in the photographs (refer to page 207 of RRJ2B). [19] It is trite law that the appellate court would not disturb the findings of 25 the trial judge unless there are serious misdirections of fact and law. The her son. I refer to the case of Norisman Bin Rozali v PP [2015] 3 MLJ 125, where the Court of Appeal held: [17] It is said that a judge who is required to adjudicate upon a dispute must 30 arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accept or reject the whole or any part of the evidence placed before him. He must when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. That is judicial appreciation of evidence, (see Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & 35 Anor [2003] 2 MLJ 97; [2003] 2 CLJ 19). A trier of facts who makes finding based purely upon the demeanour of a witness without undertaking a critical analysis of that witness's evidence runs the risk of having his findings corrected on appeal. 5 [18] It is incumbent on the part of the learned trial judge to indicate through his judgment his evaluation of the evidence. It is not sufficient to merely say 'I accept' or 'I believe' the evidence of the witness. Reasons and analysis of the evidence must be shown (Murugiah v Public Prosecutor 10 [20] The SCJ had set out the prosecution and defence case from pages 25 to 47 of the grounds of judgment. Then she analysed the evidence before her in regard to the issue of possession and access to the house (pages 48 54 of RRJ1). The SCJ discussed the issue of knowledge that can be gathered from the surrounding circumstances of the case 15 (paragraph 46). The SCJ applied the correct standard of proof i.e. upon a maximum evaluation of the prosecution case (refer to page 17 of RRJ1) And she had also analysed the defence evidence and applied the lighter burden of proof on the defence version i.e. the Appellant only need to raise a reasonable doubt on the prosecution case (page 20 of the RRJ1). The 20 SCJ found that the prosecution had proved its case beyond a reasoanble doubt and proceeded to find him guilty and convicted him on all charges. [21] The evidence in respect of the second and third charges were from the testimonies of SP1 and SP5. There, SP1 told the court that he went 25 into the house with the Appellant to conduct further inspection when he did not find any incriminating items on his person, apart from the 3 plants in the hut. The Appellant opened the door of the room which was not locked. Upon entering the room, SP1 could clearly see the incriminating items on the floor i.e. 3 small packets containing cannabis and the tubes 30 and straws which were in the pink box that was not covered by any lid. He Keadaan bilik kemas Nampak sangat jelas soon after he was detained upon SP1 finding the 3 plants outside in the hut can be admitted under s. 8 of the Evidence Act 1950 which states: Motive, preparation and previous or subsequent conduct 5 8.(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any 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 an offence 10 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 unless those statements accompany and explain acts other than statements; 15 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.

A is accused of a crime. The facts that after the commission of the alleged crime he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it are relevant. 25 [22] This is to show relevant conduct and the prosecution need not rely on any information leading to discovery. Moreover, SP1 showed where he found the items on the floor as marked in photograph N of P4. The 3 packets of drugs and plastic tubes were not concealed. The provision of 30 s.14 of the Evidence Act 1950 is also relevant in this case because the bedroom are similar in type (meaning not synthetic drugs) as the cannabis plants found in the hut outside the house. The Chemist Report confirmed that all the drugs were cannabis and cannabis plants. The section states: 35

Facts showing existence of state of mind or of body or bodily feeling Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or 5 bodily feeling is in issue or relevant. Explanation 1 A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists not generally but in reference to the particular matter in question. Explanation 2 But where upon the trial of a person accused of an offence the previous commission by the accused of an 10 offence is relevant within the meaning of this section, the previous conviction of that person shall also be relevant fact.

A is accused of receiving stolen goods, knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that at 15 the same time he was in possession of many other stolen articles is relevant as tending to show that he knew each and all of the articles of which he was in possession to be stolen. [23] 20 to accept her evidence. Her evidence was that she was in another bedroom with her daughter when the police came and told her they found some cannabis plants at the back of the house. She did not see them arresting her son as her bedroom door was closed. She said there were 5 of them who lived in the house, namely SP6, her daughter Husna and 2 25 grandchildren as well as the Appellant. Later she was asked in cross-examination that her other daughter and grandchildren who lived elsewhere came to the house and were there when the police came. SP6 admitted it and said she forgot about them. Excerpts from her evidence in respect of the cannabis plants have been reproduced below for ease of 30 reference: TPR : Pokok ganja yang polis rampas di situ puan tahu tak siapa punya? SP6 : Yang sebenarnya makcik tahu sebelum ini dia bagitahu makcik. TPR : Dia itu siapa? 35 SP6 : Anak makcik Ahmad Faridz bin Mohd Fadzil bagitahu. Masa dia bagitahu itu dia dalam keadaan sedar tak sedar lepas dia ambil ganja. Dia bagitahu makcik kata dia tanam. Selanjutnya. TPR : Dah berapa lama dia tanam puan? 5 SP6 : Tak ingat. TPR : Daripada yang dia bagitahu itu dah berapa lama sebelum dia kena tangkap? SP6 : Tak berapa ingat. TPR : Jadi Ahmad Faridz ini dia ada kata dia tanam pokok ganja kepada 10 makcik? TPR : Dia letak dekat mana pokok ganja ini makcik? SP6 : Dekat belakang rumah makcik ada stor lama tempat makcik simpan barang-barang lama, dia tanam dekat situlah. 15 TPR : Selain daripada Ahmad Faridz ini ada tak orang lain yang selalu pergi ke bahagian stor? SP6 : Tak ada, makcik sajalah kadang makcik ambil baja dalam itu. TPR : Makcik cakap tadi dia letak ganja dekat stor belakang. Jadi siapa yang jaga pokok ganja ini makcik? 20 SP6 : Dia sendirilah sebab makcik pun ada buat kebun juga dekat belakang, masa dia siram pokok makcik dia siram pokok dia sekalilah. TPR : Dia itu siapa makcik? SP6 : Ahmad Faridz Mohd Fadzil. 25 TPR : Apabila puan tahu yang Ahmad Faridz tanam pokok ganja apa yang puan rasa? SP6 : Makcik selalu marah sambil berdoa dekat Tuhan biar mati pokok yang dia tanam itu. TPR : Apabila puan marah pada Ahmad Faridz ini apa dia punya reaksi? 30 SP6 : Kadang-kadang dia cakap makcik tak yah risau lah tak ada masalah. Dia kata dia tanam untuk kegunaan dia sendiri. TPR : Jadi anak puan yang lain tahu tak Ahmad Faridz ini tanam pokok ganja? SP6 : Tahu sebab makcik bagitahu depa semua marah lah. TPR : Selain daripada marah pada Ahmad Faridz ini ada tak tindakan lain yang mereka buat? SP6 : Anak saya yang nombor 5 buat laporan terus dah tak tahan sangat. MAH : Buat laporan apa? SP6 : Laporan polis mengatakan abang depa tanam pokok itu. 5 MAH : Siapa buat laporan polis? SP6 : Anak yang nama Husna binti Mohd Fadzil [24] In Liow Siow Long v PP [1970] 1 MLJ 40, a case which discussed evidence of interested witnesses. There, the Court held that: 10 of the deceased his evidence is tainted. Testimony of close relations is not tainted if it is otherwise reliable in the sense that the witnesses are competent witnesses who were at the scene of the occurrence and could have seen what had happened. But if it is proved that they are not entirely 15 disinterested witnesses, e.g. they are either partisans of the complainant or are in any way inimical to the accused, then their testimony is tainted and requires [Emphasis added] 20 [25] and that the cannabis plants and drugs found in his room were not his. He alleged that his family members were not on good terms with him and that was motive to implicate him. In examination-in-chief, SP6 told the Court: 25 TPR : Puan bagitahu tadi yang Ahmad Faridz ini tanam pokok ganja untuk kegunaan sendiri ya? TPR : Dah berapa lama dia ambil ganja puan tahu tak? SP6 : Setahu makcik lama dah daripada lepas dia duduk Kuala Lumpur lepas 30 habis sekolah. TPR : Puan pernah tengok pokok ganja yang dia letak dekat stor itu? SP6 : Pernah tengok masa makcik pergi ambil baja untuk pokok-pokok makcik. [26] In her cross-examination, she was asked about their family ties and also was challenged that his younger sister, Husna, did not have a good relationship with him, implying that she had a bad intention towards him. OKT : Puan mempunyai 8 orang anak 4 lelaki 4 perempuan, benar? 5 OKT : Setuju atau tidak jika saya katakan bahawa anak puan yang kedua adalah seorang anak istimewa sebab dia seorang sahaja yang lain daripada 7 anak puan yang lain? SP6 : Betul. OKT : Boleh puan jelaskan kenapa puan cakap macam itu? 10 SP6 : Sebab anak yang lain tak ambil dadah tak ambil ganja. Lepas itu yang lain mahu dengar cakap juga yang ini kurang sikit nak dengar cakap makcik. OKT : Jadi disebabkan hal tersebut, setuju atau tidak kalau saya katakan puan dan anak-anak puan yang lain selalu bertelingkah dan tidak 15 sependapat dengan anak puan yang kedua iaitu OKT. Setuju atau tidak? SP6 : Apa maksud OKT. OKT: Orang kena tuduh iaitu anak puan Ahmad Faridz bin Mohd Fadzil. Setuju atau tidak? 20 SP6 : Kami bertengkar sebab dia tak nak dengar cakap kami, adik-adik dia. OKT : Setuju atau tidak jika saya katakan, dalam seminggu atau dua minggu awal sebelum OKT ditangkap OKT mempunyai masalah dengan puan dan anak puan yang bernama Husna? 25 MAH : Faham OKT Ahmad Faridz la ya? OKT : Setuju atau tidak puan? SP6 : Ya, setuju sebab kami ada bagi nasihat dia tak mahu dengar. OKT : Tadi puan ada menyatakan bahawa bilik OKT Ahmad Faridz berkunci 30 ketika dia tidur dan Ahmad Faridz tidak pernah berkongsi bilik tersebut dengan sesiapa. Setuju atau tidak jika saya katakan, bilik tersebut selalu dimasuki oleh anak-anak saudara Ahmad Faridz untuk bermain, meluangkan masa dengan Ahmad Faridz dan belajar mengaji dengan OKT? SP6 : Setuju. OKT : Setuju atau tidak jika saya katakan, bilik OKT tidak pernah berkunci Ketika OKT meninggalkan bilik tersebut? 5 SP6 : Tapi dekat-dekat dia nak kena tangkap selalu dia keluar makcik tengok dia kunci, cuma masa anak-anak saudara nak masuk mengaji baru dia buka. Kalau dia ada dekat rumah dia buka, kalau dia keluar dia kunci. OKT : Jika OKT keluar OKT kunci pintu bilik? SP6 : Ya. 10 OKT : Tadi puan ada mengatakan ketika OKT ditangkap di dalam rumah tersebut hanya tinggal puan dan anak puan yang ke-5 iaitu Husna bt Mohd Fadzil. Setuju atau tidak jika saya katakan, ketika hari OKT ditangkap terdapat 4 lagi individu lain di dalam bilik tersebut iaitu Hamizah bt Mohd Fadzil, cucu puan Orked dan 2 lagi cucu puan Ana 15 Maria dan Qalesha Qalikha. Setuju atau tidak? SP6 : Maaf saya lupa pasal itu, memang diaorang baru sampai Hamiza baru [27] I found that SP6 was unwavering in her answers and on this issue, 20 in PP v Chia Leng Foo [2000] 4 CLJ 649 at page 670, the Court held: in cross-examination can only be indicative of the case put forward or the stand taken by the parties on whose behalf the cross-examination is being conducted, but to no extent whatsoever can it be a substitute for evidnce if it is clearly repudiated by th 25 [28] The SCJ found SP6 to be a credible witness. She was a competent witness who lived in the house with the Appellant. She was honest in her answers under cross-examination by her own son. I found that her evidence on the cannabis plants seized from the back of her house was 30 corroborated by the evidence of SP1. It must have been difficult for her as a mother to give evidence implicating her own son but that is the truth of the matter. ketegaq [29] In the case of Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232, the Court held: the credibility of a witness is primarily a matter for the trial judge. The functions of an Appellate Court, when dealing with a question of fact in 5 which questions of credibility are involved are limited in their character and scope and in an appeal from a decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, an Appellate Court must in order to reverse not merely entertain doubts whether the decision below is right but be convinced that it is wrong. In this case the learned trial 10 judge accepted the evidence of Atun, the prosecution witness, whom he found to be a consistent witness unshaken by very severe cross-examination and the Appeal Court could find no reason to interfere with his [Emphasis added] 15 [30] SP6 stated that she knew Husna activities but she did not know what was in the report. There was no report made by Husna tendered in court. SP1 in his evidence told the Court that he received a tip-off about a Malay man cultivating cannabis plant at the house. It could well have Husna who tipped-off the police. In the end the 20 Appellant decided not to call Husna as his witness although she had come to court on the first day of defence case. Nevertheless, the fact was that 3 cannabis plants and some more seeds containing traces of THC were found at the premises. 25 [31] his mother on a previous occasion where he admitted that he cultivated hearsay rule. They are admissible a evidence only on proof. Proof of an oral admission can be given only by witnesses who heard the admission 30 or confession. Section 17 of the Evidence Act 1950 provides: Admission and confession defined

(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence. 5 [32] Anak makcik Ahmad Faridz bin Mohd Fadzil bagitahu. Masa dia bagitahu itu dia dalam keadaan sedar tak sedar lepas dia ambil ganja. Dia bagitahu makcik kata dia tanam. Sections 24, 25 and 26 set out the circumstances under 10 which confessions are to be excluded and this confession did not fall under any of the 3 sections above. I refer to Evidence, Practice and Procedure, Fourth Edition by Augustine Paul at page 205. The author (His Lordship) explained: 15 at other facts which may not be known at the time or which may emerge in evidence at the trial. But equally it is irrelevant to consider whether the accused intended to make a confession. If the facts in the statement added together suggest the inference that the accused is guilty of the offence then it is nonetheless a confession even though the accused at the same time protests 20 [33] In (HC) Augustine Paul J (as his Lordship then was) held: (see 25 Slatterie v Pooley 6 M & W 664). Thus, section 21 provides, inter alia, that admissions are relevant and may be proved as against the person who makes them. An admission is treated as an exception to the hearsay rule and thus admissible. As Sarkar on Evidence (14th Ed) Vol 1 says at page 309: - 30 witness, and admissions are therefore generally treated as exception to the hearsay rule. Admissions are not, however, open to all objections applicable to hearsay testimony. It is true that they have unsworn statements made out of court like hearsay testimony, but they are statements not of third persons but of a party to the proceeding and for 35 the reason stated about what a party said against his interest may be [34] This Court decided that the statement made by the Appellant to his mother that was an admission which went 5 towards his knowledge of the offending plants being cultivated at their premises. He admitted that he cultivated the plant(s) and the statement may be proved against him (s.21 of the Evidence Act 1950). SP6 was answering the question asked by the DPP whether she knew who owned the plants. Therefore, there was no merit on this issue raised as a ground 10 of appeal by the Appellant and I now move on to consider the evidence pertaining to the issues of possession, knowledge and access to the premises. ACCESS TO THE PREMISES 15 [35] I refer again to the principle of criminal possession as follows: "Thompson J. in Chan Pean Leon v. Public Prosecutor [1956] 22 MLJ 237, said "possession" for the purposes of criminal law involves possession itself - which some authorities term "custody" or "control" - and knowledge of the nature of 20 thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th Edition, 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 powers to deal 25 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 need.' Once the elements needed to constitute possession are established, 30 including the element of exclusive power to deal, when what is established is possession, not exclusive possession. So much for exclusive possession." [Emphasis added] 35 [36] The Appellant tried to raise doubt others who had access to the premises and he rightly challenged SP1 and However, SP1 did not agree because during their surveillance, no one else went to the hut at the back of the house. he relevant fact of excluding access 5 can be found during re-examination that: TPR : Tadi Ahmad Faridz ada tanya pada puan, dia kata anak saudara juga selalu masuk ke dalam bilik dia untuk main dan mengaji. Puan setuju. Tapi masa mula-mula saya tanya puan kata bilik itu Ahmad Faridz saja yang gunakan. Boleh puan jelaskan? 10 SP6 : Saya ingatkan tak mustahak yang itu sebab dia masuk mengaji bila Faridz ada dekat rumah. ... TPR : Kemudian Ahmad Faridz ini ada bagitahu puan, dia kata disebabkan pertengkaran kecil puan, Ahmad Faridz dan Husna sebab itulah anak 15 puan Husna nyatakan pada polis abang yang tanam pokok ganja. Boleh puan jelaskan apa yang puan maksudkan? SP6 : Sebabkan dah banyak kali adik dia nasihat dia puan tak tahan dah tengok abang dia bertengkar dengan emak dia itu yang dia buat laporan polis. 20 TPR : Puan cakap nasihat tadi, nasihat pasal apa puan? SP6 : Pasal yang dia bagitahu makcik yang dia tanam pokok ganja. Makcik pun kadang ada baca dalam laporan berita mengenai kalau kes ganja ini bahaya juga untuk family. Itu yang makcik nasihat dia hapus pokok yang dia tanam itu, tapi dia bagitahu makcik untuk 25 [37] In order to prove possession, there must be actus reus i.e. custody or control of the dangerous drugs and mens rea i.e. mens rea possession: Chan Pean Leon (supra). The Appellant must have been found having 30 custody or control of the dangerous drugs and have the power to dispose them to the exclusion of others. At the same time, he must have knowledge of the dangerous drugs. It is a very heavy burden on the prosecution to discharge. In the case of Teh Hock Leong v. PP [2008] 4 CLJ 764 the Court of Appeal stated: 35 mens rea possession is an element of the offence of trafficking. But it is an element like the mental element in other crimes which cannot be established by direct evidence save in a case where an accused expressly admits the commission of the offence. It has, like the mens rea in other offences, to be established by circumstantial evidence. In other words it is an 5 ingredient that is to be inferred from the totality of the circumstances of a [38] SP6 testified on the issue of access as follows: TPR : Jadi dalam rumah puan alamat 1417 Taman Menteri ada berapa bilik? 10 SP6 : 3 bilik. TPR : 3 bilik itu bilik apa puan dan digunakan untuk apa? SP6 : 1 bilik Ahmad Faridz, 1 bilik makcik, 1 bilik Husna. TPR : Bilik Ahmad Faridz ini bilik yang mana puan, kedudukan dia dekat mana? 15 SP6 : Kalau ikut daripada bahagian depan rumah sebelah kanan. TPR : Bilik Ahmad Faridz siapa yang gunakan bilik ini puan? SP6 : Ahmad Faridz guna seorang. TPR : Ahli keluarga lain dan kawan-kawan dia ada tak masuk dalam bilik Ahmad Faridz? 20 SP6 : Kami tak pernah masuk lah kalau nak masuk kami ketuk dulu sebab kadang-kadang dia kunci tidur ka solat ka. MAH : Kawan-kawan lain? SP6 : Tak ada. 25 [39] SP1 was examined and cross-examined also on the issue of as that: 30 Saya dimaklumkan oleh tuan inspektor semalam bahawa semasa dalam pemerhatian tuan inspektor hanya melihat OKT duduk dan pegang sesuatu di dalam pondok tetapi inspektor tidak menyatakan apa yang dipegang di dalam pondok tersebut. Saya ingin tanyakan jarak pemerhatian inspektor daripada kawasan pondok dengan tempat inspektor duduk berapa jauh jarak? SP1 : Jarak lebih kurang 20 hingga 30meter sepertimana keterangan saya semalam. Pemerhatian dalam jarak 20-30 meter saya hanya melihat tertuduh memegang sesuatu yang saya sendiri tidak boleh sahkan 5 adakah itu pokok ganja atau tidak. Cuma saya boleh mengesahkan bahawa pergerakan tertuduh dari dalam rumah ke pondok tersebut. OKT : Daripada gambar rajah yang kita dapat lihat ID4(F) dapat lihat pondok tertutup dan hanya terdapat sebuah lubang tingkap kecil saja dan inspektor menandakan X sebagai tempat suspek duduk dan inspektor 10 menyatakan bahawa inspektor melakukan pemerhatian dalam 20 hingga 30 meter daripada kawasan tersebut. Jadi adakah inspektor betul-betul pasti bahawa suspek sedang memegang sesuatu yang inspektor katakan tadi isnpektor tidak pasti pokok ganja. Adakah inspektor betul-betul pasti itu adalah suspek sedangkan di belakang 15 pondok terebut terdapat lagi rumah jiran dan pokok-pokok yang melindungi kawasan tingkap kecil tersebut? SP1 : Terdapat satu buah rumah kosong yang tidak berpenghuni. Rumah tersebut terletak sebelum rumah tertuduh. Bagaimana pemerhatian dijalankan bukan saja dilakukan dengan meletakkan anggota di 20 bahagian belakang dan bahagian depan kawasan rumah. Pemerhatian juga dijalankan seperti tidak statik sepertimana yang diterangkan oleh oleh saya semalam. Anggota serbuan bertindak untuk mencari tempat-tempat yang strategik untuk melihat pergerakan tertuduh dari dalam rumah terseubut. Salah satunya adalah saya dan anggota serbuan telah 25 masuk ke dalam kawasan rumah di sebelah rumah tertuduh yang tidak berpenghuni dan duduk di sebalik tembok di sebelah rumah tertuduh. Sepanjang pemerhatian dijalankan saya tidak dapat melihat dengan jelas bahawa tertuduh sememangnya memegang pasu yang mempunyai tumbuhan pokok ganja namun saya boleh mengesahkan 30 berdasarkan pemerhatian selama 2 hari iaitu pada 12/04 dan 13/04 bahawa tiada individu lain yang berada di rumah tersebut kecuali OKT. OKT : Tiada individu lain di rumah tersebut kecuali tertuduh inspektor? SP1 : Tiada individu yang tidak dikenali kecuali ahli keluarga tertuduh. OKT : Sepanjang 2 hari pemerhatian? 35 SP1 : Ya, saya. OKT : Maksudnya selama 48 jam? SP1 : Pemerhatian pertama lebih kurang pukul 2:00 petang hinggan 6:00 petang baru 4 jam. Pada 13/04/2022 pemerhatiaan dilakukan lebih kurang 3 jam bermula pukul 12:00 hingga pukul 3:00 petang. Hanya 40 beberapa jam. OKT : Pada 13/04? SP1 : 13/04/2022 12:00 tengahari hingga 3:00 petang sahaja. OKT : Setuju atau tidak jika saya katakan di antara pukul 6:00 petang 12/04 sehingga pukul 12:00 tengahari 13/04 terdapat satu jangka masa yang panjang untuk individu lain pergi meletakkan pasu dan pokok ganja tersebut di dalam pondok tersebut. Setuju atau tidak? SP1 : Sepanjang pemerhatian saya tidak nampak sebarang pergerakan 5 individu lain yang memegang sebanyak 3 buah pasu bunga yang mengandungi pokok ganja dan diletakkan di bahagian belakang dalam pondok rumah. OKT : Bermula daripada pukul 6:00 petang 12/04 sehingga ke pukul 12:00 tengahari 13/04 adalah salah satu jangka masa yang panjang yang tidak 10 termasuk dalam pemerhatian inspektor dan team inspektor. Setuju atau tidak jika saya katakan dalam tempoh tersebut individu lain yang tidak dikenali atau dikenali boleh meletakkan 3 pasu tersebut di dalam pondok yang dinyatakan di sini? SP1 : Tidak setuju. 15 OKT : Sepanjang pemerhatian tuan inspektor, tuan dapati sebelah rumah suspek terdapat sebuah rumah kosong dan inspektor menjalankan pemerhatian dari dalam rumah kosong tersebut seperti dinyatakan oleh inspektor tadi di sebalik tembok. Seperti yang kita faham tembok adalah sebuah tembok batu. Jadi bagaimana inspektor boleh melihat melalui 20 tembok batu. Adakah inspektor ini seorang bionic man yang boleh melihat melalui tembok batu. Jika lihat daripada gambar rajah F rumah kosong tersebut terletak di sebelah kiri pondok dan di sebelah kiri pondok terdapat zink dan dinding batu pondok. Jadi tidak boleh melihat suspek duduk di Kawasan X yang ditanda oleh tuan inspektor? 25 SP1 : Yang Arif tembok tersebut juga mempunyai lubang-lubang yang boleh dilihat. Saya juga tidak semestinya duduk berhadapan tembok untuk tidak melihat tertuduh. Kami mempunyai cara tersendiri bagaimana untuk melihat pergerakan individu. Kawasan rumah jiran tertuduh juga terdapat pagar besi yang boleh memberi pandangan yang jelas di dalam 30 kawasan rumah tertuduh OKT : Soalan saya adakah tuan inspektor perasan dengan pintu-pintu kecil yang menghubungi 6 biji rumah di sini? MAH : Pintu kecil itu dekat mana nampak tak? SP1 : Nampak macam ada rangka kecil di sebalik tingkap ini. (Saksi tunjukkan) 35 MAH : Yang itukah? OKT : Ya. ... OKT : Soalan saya adakah tuan inspektor betul-betul pasti yang pokok-pokok ini memang ditanam di dalam pondok tersebut atau pun diletakkan oleh 40 individu lain untuk mensabotaj suspek? SP1 : Saya tak tahu. OKT : Apa maksud tuan inspektor tak tahu? SP1 : Saya tak tahu dan tak nampak. Semasa pemerhatian dijalankan sepertimana yang saya jelaskan sebelum ini saya tidak boleh mengesahkan bahawa tertuduh memegang pokok ganja sehingga tertuduh ditahan di dalam kawasan pondok baru saya boleh mengesahkan bahawa 3 pasu tersebut adalah pokok ganja. 5 OKT : Tuan inspektor tahu bahawa setiap pokok memerlukan cahaya matahari untuk hidup. Untuk menjalankan proses fotosintesis setiap pokok memerlukan cahaya matahari? SP1 : Semasa serbuan saya telah merampas 3 buah pasu yang setiap satu pasu terdapat 1 batang pokok disyaki pokok ganja. Dari pemerhatian 10 dan pengamatan diri saya sendiri sebagai pegawai polis saya hanya boleh mengesahkan bahawa pokok ganja itu hidup kerana daun-daun pokok ganja berwarna hijau. Jika pokok tersebut sudah mati semestinya sudah berwarna coklat dan saya cuma tidak boleh mengesahkan samada hidup atau mati pokok tersebut. Hanya boleh disahkan apabila 15 dihantar ke Jabatan Kimia Ipoh untuk dianalisa oleh ahli kimia. SP1 : Faham dia bagitahu saya sebenarnya tangkap tertuduh di kawasan hadapan rumah semasa tertuduh hendak keluar menaiki motorsikal. Jawapan saya tidak setuju, tertuduh ditahan di bahagian belakang di 20 dalam pondok tersebut. [40] Despite being a layman, the Appellant was able to ask relevant questions and challenged the observation made by SP1 and also raised the issue of access. Nevertheless, SP1 was staunch in his answer that 25 there was no else who went to the hut at the back of the house except the Appellant when they were making their surveillance on the premises. He was honest in his answers and there was nothing to show that he was lying in the records of proceedings. 30 [41] On the issue of credibility of the witnesses, the Appellant contended that the evidence of SP1 and SP5 could not be believed, but the Court found that they were police witnesses whom were frank and honest in their testimonies in Court and tested in cross-examination by the Appellant himself. There was nothing incredible about their evidence and therefore, 35 the Court was bound to accept their evidence which had been tested in cross-examination: PP v Mohamad Ali [1962] MLRH 79; Mohamed Alias v PP [1983] 2 MLJ 172). If SP1 wanted to take the easy way, he could have told the Court that he saw the Appellant holding and watering the plants while he was doing the surveillance at the back of the house, but he did not say that other than that he was only able to see the plants 5 were cannabis when they finally raided the premises on the second day. So, again, the principle in (supra) is applicable here. [42] SP7 was cross-examined by the Appellant that it was impossible for 10 SP1 to see inside the hut from where he was conducting surveillance because at the left side of the house. SP7 replied (based on his observation as he was the Investigation Officer) Bagi saya tak boleh nak menyatakan bahawa pihak anggota serbuan tak nampak bahagian kiri rumah sebab intipan dibuat pada waktu siang. Bagi bahagian belakang 15 memang dah jelas sebab kalau kita tengok pada pondok terdapat 1 lubang yang terdapat di bahagian pondok ini yang jelas menunjukkan kita boleh nampak daripada jauh apa yang dilakukan oleh OKT. evidence was consistent with the evidence given by SP1 and based on facts, not mere conjecture. 20 [43] There were no material contradictions in the evidence of the prosecution witnesses that would have been fatal to the prosecution case. It showed that the police witnesses did not concoct the evidence and there were bound to be minor inconsistencies because each witness related 25 what he knew from the facts of the case. I had also considered the possibility of others having access to the premises because it looked like any normal house in a rural area. But the crux of the matter was the proximity of the cannabis plants at the back of the house and the all relevant facts and evidence which had been considered by the SCJ. Therefore, based on the evidence of SP1 and SP6, I found that the Appellant had custody and control as well as knowledge of the nature of the drugs and seeds found in his bedroom and the 3 cannabis plants in 5 the hut at the back of the house. [44] In Shah Irwan Ton v. Public Prosecutor & Another Case [2013] 1 LNS 377, Balia Yusof Hj Wahi, JCA stated: True that the evidence of SP4 and SP7, both of whom are prosecution 10 witnesses and both are police officers, but the learned JC was very careful in dealing with these two witnesses on their testimonies as to the role of the informer. At pages 115 - 118 of the appeal record, in appreciating the evidence of these two prosecution witnesses, Her Ladyship has put a caution before accepting their evidence and stated as follows: 15 Both SP4 and and SP-7 were police witnesses and their evidence was not inherently improbable. Following PP v. Mohamed Ali [1962] 1 LNS 129; [1962] MLJ 257 and applied in Timhar Jimdani Ong v. PP [2010] 3 CLJ 938; [2009] 1 LNS 1130;[2010] 7 MLJ 775, CA, such evidence should at first instance be accepted unless shaken in cross-examination 20 or contradicted by other evidence. There were contradictions in the prosecution case as discussed above but I did not find the contradictions so serious as to strike at each other such that the prosecution was left with no case. There was no suggestion that there had been any fabrication by those witnesses. 25 We do not find anything wrong with the approach and the conclusion [45] Having said that, I was satisfied that the SCJ had made a positive finding of fact that the Appellant was the custodian of the cannabis plants 30 to the case of Denish Madhavan (supra), the Federal Court held on the issue of possesion: ] 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. [1955] 1 LNS 53: 35 ... 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 5 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 10 by which it is to be proved. It is essential to keep this distinction clearly in mind, especially when applying presumptions. [Emphasis added] [46] From the totality of the evidence, the SCJ found, and I agreed that the Appellant had custody and control of the cannabis and cannabis seeds 15 seized and he had knowledge of the said drugs at the material time: Jonaidi Mansor v PP [2002] 1 CLJ 767 and PP v Mohd. Farid Mohd. Sukis & Anor [2002] 3 MLJ 401. The Court of Appeal in the case of Mazlani Mansor & Dua Lagi v Pendakwa Raya [2013] 1 LNS 1292 stated that 20 presence or proximity to the impugned drugs is insufficient to fasten knowledge, custody and possession of the drugs, it is clear to us from a reading of his judgment that the learned Judge found that this was not such a case. We agree with his finding for the following reasons. appellate court then referred to the famous passage in the case of Chan 25 Pean Leon [47] On another note, despite the prosecution not calling Husna, I found that it was not fatal to the prosecution case. I refer to the Court of Appeal case of Francis Okechukwu Nwankwo v PP [2022] MLJU 2836, the 30 Court held: Act ought to be invoked for the said non-calling but declined to do so on account of the circumstances surrounding the recovery of the drugs which we have adverted to. complete without them being called and they were not necessary 5 witnesses to complete the narrative. Neither were they present at the scene at or around the material time which we accept is an important factor. Nor did their non- [41] We appreciate the trite principle that the onus is on the PP to exclude the possibility of access by others to the place of discovery. [See Abdullah Zawawi 10 bin Yusoff v PP [1993] 2 MLJ 1]. Be that as it may, it is trite law that the duty on the PP is only to produce in Court all witnesses necessary for the unfolding of the narrative. Besides that, the PP has the discretion as to which witness to call. In the landmark case of Ti Chuee Hiang v PP [1995] 2 MLJ 433 On the other 15 hand, it is clear law that the prosecution must have in court all witnesses from whom statements have been taken, but they have a discretion whether to call them or not. (See Teh Lee Tong v PP [1956] MLJ 194). That discretion, however, must be exercised having regard in the interests of justice, which includes being fair to the accused (per Lord Parker CJ in R v Oliva [1965] 20 3 All ER 116 at p 122; [1965], 2 WLR 1028 at p 1035), and to call witnesses essential to the unfolding of the narrative on which the prosecution case is based, whether the effect of their testimony is for or against the prosecution (per Lord Roche in the Ceylon Privy Council case of Seneviratne v R [1936] 3 All ER 25 [Emphasis added] [48] At this stage, I refer to the provision of s. 6B of the DDA 1952 upon which the Appellant was charged. The provision states: Section 6B. Restriction on planting or cultivation of certain plants.

No person shall

either on his own behalf or on behalf of any other person, plant or cultivate any plant from which raw opium, coca leaves, poppy-straw or cannabis may be obtained either directly or indirectly;

allow any plant, from which raw opium, coca leaves, poppy-straw or cannabis 35 may be obtained either directly or indirectly, to be planted or cultivated by some other person on land owned or occupied by him or in any receptacle on such land; or

allow any plant, from which raw opium, coca leaves, poppy-straw or cannabis may be obtained either directly or indirectly, planted or cultivated by some other 40 person on land owned or occupied by him or in any receptacle on such land, to remain on such land or in such receptacle.

Nothing in this section shall be construed to prevent the Minister from authorizing any public officer to plant or cultivate any plant, from which raw opium, coca leaves, 5 poppy-straw or cannabis may be obtained either directly or indirectly, in places and on such terms and conditions as may be specified in such authorization for research, educational, experimental or medical purposes

Any person who contravenes this section shall be guilty of an offence against this 10 Act and shall be punished on conviction with imprisonment for life and with whipping of not less than six strokes.

Any person found on land or who occupies land on which, or any person found in possession of any receptacle in which, any plant, from which raw 15 opium, coca leaves, poppy-straw or cannabis may be obtained either directly or indirectly, is planted or cultivated shall be presumed, until the contrary is proved, to be the person who planted or cultivated such plant. 20 [49] The SCJ did not invoke s.6B(4) but the provision is there and it is a presumption of law which works in favour of the prosecution, because she has made a positive finding of possession (paragraphs 44 46 of the grounds of judgment): Sathya Vello v PP [2022] 5 CLJ 659. The evidential burden then shifts to the accused to rebut the presumption on 25 a balance of probabilities that he was the person who cultivated the cannabis plants. Otherwise, the presumption becomes a fact and the fact was that the Appellant was the cultivator of the 3 cannabis plants. The third plant was smaller in size than the other two and it could be assumed that it was cultivated later than the others. The cultivation of the cannabis 30 plants was an on-going thing, and this fact was substantiated by the SP2 also testified given the right conditions, the seeds could also be cultivated later and would produce cannabis plant(s), not tomato plant(s). 35 [50] I will discuss the defence case next, but suffice to state here that although the SCJ applied a lighter burden on the Appellant when she should have evaluated his defence on a heavier evidential burden of balance of probabilities, it was not a serious misdirection because the Appellant was not misled in his defence, nor had it occasioned a 5 miscarriage of justice upon the Appellant. [51] The Appellant admitted that he was arrested on 13.4.2022 when the 10 police came to the house and accused him of possessing 3 cannabis plants. The defence basically was a bare denial, that he did not own the plants and alleging that he was framed by his own family as they were dissatisfied with him about his way of life and some property ownership. He also accused the police of framing him and charging him because of 15 Pertuduhan yang dibuat adalah pertuduhan yang direka dan ditambah-tambah dan saya menafikan sekeras-kerasnya segala pertuduhan yang telah dituduh terhadap saya. Dengan ini saya meminta jasa baik Yang Arif dan pihak Mahkamah untuk mempertimbangkan dan saya berharap agar 20 Keputusan pihak Mahkamah berpihak kepada saya. Di dalam perbicaraan lepas yang telah dijalankan saya tidak mempunyai sebarang pengalaman dan ilmu di dalam bidang undang-undang dan saya juga agak terkilan dan menjadi tandatanya kepada saya kenapa saya tidak disediakan seorang peguam melalui Yayasan Bantuan Guaman. 25 elaborate on the last point later in this judgment. [52] The law is clear in regard to the duty of the Court in evaluating the evidence of the defence at the end of the defence case. As I stated earlier, his defence was a bare denial and that does not discharge the burden of proof which he has to rebut the prosecution case on a balance of probabilities after a positive finding of possession of the 3 cannabis plants have been made by the SCJ. I refer to the case of Sathya Vello (supra) where the Federal Court held: 5 [11] The onus of proof therefore shifted to the appellant to prove, on the balance of probabilities that: (1) he had no knowledge of the drugs hidden in the specially constructed compartments of the luggage bags; and (2) he had no knowledge of the nature of the drugs, ie he did not know that they were dangerous drugs. By the reversal of onus of proof, the prosecution was 10 relieved of the duty to prove in the affirmative that the appellant had knowledge of the drugs and had knowledge of the nature of the drugs. All that the prosecution needed to do to establish possession and knowledge of the nature of the drugs was to prove physical custody or control of the drugs and the presumption under s 37(d) would be activated by operation 15 of law. [13] 20 in his custody or under his control. The second part complements the first part by presuming that he also knew the nature of the drug. [Emphasis added] [53] ease of reference as this was the crux of his defence: 25 pertuduhan tersebut dan saya ada nyatakan kepada pihak polis bahawa ia adalah satu penganiayaan terhadap saya tetapi pihak polis tidak merekodkan penyataan tersebut dan tidak merekodkan apa yang telah saya nyatakan pada pihak polis pada hari tersebut. Ahli keluarga saya dan pihak polis boleh 30 merancang untuk mengenakan pertuduhan ini terhadap saya kerana adik saya mempunyai hubungan yang agak rapat dengan Jabatan Polis sebab kerja yang dilakukan banyak melibatkan pihak polis. Pokok-pokok tersebut memang boleh diletakkan oleh sesiapa saja di dalam stor yang ditemui kerana stor tersebut tidak mempunyai pintu pintu yang berkunci, tidak mempunyai tingkap yang 35 bertutup dan tidak mempunyai dinding dan terdapat juga pintu-pintu kecil yang tidak berkunci yang boleh dimasuki oleh sesiapa saja melalui keliling rumah saya dan keliling rumah jiran-jiran yang lain. Pada hari tersebut saya amat yakin bahawa hanya 3 orang anggota polis sahaja yang datang ke rumah saya di atas tujuan untuk menangkap saya kerana saya mempunyai ingatan yang kuat dan bagaimana saya hend ak membuktikan kepada Mahkamah bahawa hanya 3 orang sahaja yang datang sedangkan rumah saya tidak mempunyai perakam 5 [54] The SCJ has considered his defence in paragraph 47 of the grounds of judgment and found that it was a bare denial and did not raise a reasonable doubt on the prosecution case. I have also considered the 10 defence version and found that it did not rebut the presumption under s.6B(4) which was invoked by operation of law. He wanted to call Husna at first as his witness but later decided against it, for reasons best known to himself. In my view, his failure to call Husna to testify in Court to prove that she had concocted the story to frame him warranted this Court to 15 draw an adverse inference against the Appellant under s. 114(g) of the Evidence Act 1950 where in the often-cited case of Munusamy Vengadasalam v PP [1987] 1 MLJ 492 it was held: withholding or suppression of evidence and not merely on account of failure to 20 obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case." [55] Even if I am wrong, and that the evidential burden is just to raise a 25 reasonable doubt, I could not accept his evidence to be the truth and to acquit him. Despite the assertions of the Appellant that there was inference favourable to the defence i.e. the hut at the back of the house was easily accessible by others from outside, unfortunately due to the totality of the evidence, I was unable to find in favour of the defence: Tai 30 Chai Keh v. Public Prosecutor [1948] 1 LNS 122; Public Prosecutor v. Kasmin bin Soeb [1974] 1 LNS 116; [1974] 1 MLJ 230). I refer to the evidence below to illustrate the point that the Appellant suddenly changed his stand (lied) about the neighboring house when earlier he said it was unoccupied: OKT : Soalan saya adakah tuan inspektor perasan dengan pintu-pintu kecil yang menghubungi 6 biji rumah di sini? 5 MAH : Pintu kecil itu dekat mana nampak tak? SP1 : Nampak macam ada rangka kecil di sebalik tingkap ini. (Saksi tunjukkan) MAH : Yang itukah? OKT : Ya. MAH : Tanda, buat tandaan M. Pintu kecil yang boleh menghubungi setiap 10 rumah. Maknanya dalam kes ini boleh menghubungi rumah suspek dengan rumah kosong sebelah. OKT : Rumah kosong rumah jiran belakang MAH : Pintu itu menghubungi rumah suspek dengan rumah siapa dalam gambar itu? 15 OKT : Dalam gambar dengan rumah jiran belakang. MAH : Rumah kosongkah? OKT : Rumah berpenghuni. [56] In the cross-examination of SP6, the Appellant asked about access 20 to the house through the back door from their neighboring houses which the witness did not deny. SP1 testified that the house behind there was unoccupied (from where they did the surveillance) but SP6 was not cross-examined specifically about the unoccupied house. Nevertheless, mere suggestions there were others who could have placed the plants in the 25 hut were not evidence. Who on earth would put 3 cannabis plants at the it highly unlikely that anyone else placed the plants there more so when his own mother told the court under oath that her son cultivated the cannabis plants in the hut at the back of their house. The 5th principle in 30 Mat v PP [1963] MLJ 263 states that before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. I am guided by the principles in the cases below that the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. [57] In the case of Mohamad Radhi B Yaakob v PP [1991] 3 MLJ 169 the 5 Supreme Court held: of PP v Saimin & Ors [1971] 2 MLJ 16 where Sharma J held that the falsity of the defence does not relieve the prosecution from proving the prosecution's 10 case beyond reasonable doubt. We are of the view that whenever a criminal case is decided on the basis of the truth of the prosecution's case as against the falsity of the defence story, a trial judge must in accordance with the principle laid down in Mat v PP [1963] MLJ 263 go one step further before convicting the accused by giving due consideration as to 15 why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. 20 [Emphasis added] [58] In Ali Tan Bin Abdullah v PP [2013] 2 MLJ 676, the appellate court held: 25 Indeed, mere denial or presenting a bare story of innocence, such as in the circumstances of the present case, cannot amount to reasonable doubt. The court's acceptance of the explanation offered by an accused person must be based upon reason and common sense, and cannot be illogical or irrational. The existence of reasonable doubt is 30 dependent upon the totality of the evidence and on an examination of all the evidence in a fair and reasonable manner and not in isolation. In the present case, the learned JC in his judgment had very meticulously considered the defence of the appellant. The learned JC was satisfied that the appellant had failed to cast any reasonable doubt on the 35 prosecution's case and that the charges were proved beyond reasonable doubt. We are in complete agreement with the learned JC. We are satisfied that the learned JC had not misdirected himself in any way to occasion an error either on the law or the facts to warrant appellate interference. We are unanimous that the learned JC had not made any wrong inferences on the facts before him. We found no merits in this appeal. We accordingly dismissed the appeal and affirmed the convictions and sentences on both 5 [59] In case of PP v Saimin & Ors [1971] 2 MLJ 16, Sharma J held: "It has been said that 'reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths 10 and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there. Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the 15 jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence". 20 [60] Having considered the evidence of both the prosecution case and defence case, I did not believe the Appellant's explanation and that explanation did not raise a reasonable doubt in my mind as to his guilt. [61] Lastly, I would just touch on the point raised that he did not get a 25 fair trial because no one from YBGK represented him. It could be seen from the Notes of Evidence that the SCJ had given him many postponements to obtain a counsel to represent him. In fact, on 17.1.2023 almost 9 months after he was charged, the Appellant himself told the Court that a YBGK counsel has agreed to represent him and the 30 postponement was allowed for the last time by the SCJ. However, the YBGK counsel failed to turn up at the appointed trial date and the Appellant proceeded to represent himself during the whole trial. It could be seen also from the Notes of Evidence that the SCJ had patiently guided the Appellant throughout the trial, explained the procedures, asking him 35 again and again if he did not understand questions etc. and needed further explanation, gave him opportunities to submit his written submissions and also explained the 3 options when defence was called and trial was adjourned to enable him to prepare his defence.. I found all these when I perused the Notes of Evidence (RRJ2A and B). In the case of Sau Soo Kim v. PP [1975] 2 MLJ 134, the court stated: 5 Counsel at trial, then perhaps an Appellate Court should peruse the record of trial carefully to satisfy itself that there has been no irregularity giving rise to miscarriage of justice. Being unrepresented, he would not have the benefit of legal advice. It is proper in such a situation to correct miscarriage justice arising 10 from any misconception of law, irregularity of procedure or apparent harshness of treatment resulting in injury or undue hardship to such an accused [62] Despite not being represented by a lawyer at his trial, I found that the Appellant was able to ask relevant and intelligent questions and 15 understood the need to challenge the evidence given by the prosecution witnesses. The Court observed further that the Appellant was very thorough in his questions on all the witnesses as I have laid out their evidence in this Grounds of Judgment. I noted also that when he forgot to ask a question, after the witnesses had completed giving evidence, he 20 asked to re-call the witnesses and was allowed to do so by the SCJ. He even tried to challenge the Chemist in her analysis of the seeds that they testimony. But the Chemist gave an explanation that the court accepted. She was asked: 25 OKT : Jadi faktor-faktor sekeliling mempengaruhi samada dia akan tumbuh sebagai cannabis ataupun tomato? SP2 : Kalau biji benih cannabis ia akan tumbuh sebagai pokok cannabis dan tidak akan tumbuh sebagai pokok tomato. 30 OKT : Jadi Puan Zurina menyatakan memang tidak menjalankan ujian kandungan peratus THC di dalam pokok tersebut dan pokok tersebut boleh jadi ianya adalah pokok jantan yang mengeluarkan debunga dan tidak mengeluarkan cannabis. Ia juga boleh jadi pokok betina yang mengeluarkan cannabis. Setuju dengan saya puan? 35 SP2 : Saya kurang faham soalan tersebut. OKT : Ketiga-tiga pokok yang puan kaji puan tidak nyatakan dan puan tidak jalankan kajian berapa peratus THC yang terdapat di dalam pokok tersebut. Pokok tersebut boleh jadi ianya adalah pokok jantan yang langsung tidak mengeluarkan cannabis, ia hanya mengeluarkan 5 debunga dan ia juga boleh jadi pokok betina yang mengeluarkan cannabis tetapi tidak mengeluarkan debunga. Setuju dengan soalan saya? SP2 : Saya tidak setuju. 10 [63] The evidence adduced by the prosecution had been evaluated by this Court upon a maximum evaluation as required by law, at the end of prosecution case and at the defence case. The SCJ subjected the defence to the test of whether it had raised a reasonable doubt on the prosecution case, which it had not. Therefore, this failure of the Appellant 15 warranted a conviction on all charges. APPEAL AGAINST SENTENCE [64] The Appellant was sentenced to life imprisonment for the first 20 charge ad 6 strokes of the rotan, and 2 years each for the other charges. All of the sentences of imprisonment were ordered to run concurrently from the date of arrest. I did not find any error of law that would justify this Court to disturb the sentences handed out by the SCJ. I refer to the case of PP v Loo Choon Fatt [1976] 2 MLJ 256 at page 257, YA Hashim Yeop 25 Sani (as his Lordship then was): been a gradual change in the attitude of the legislature during the last few years. The Ordinance has been amended by Parliament a number of times, in 1971 (by Act A112 of 1972) then in 1973 (by Act A 194 of 1973) and then in 1975 (by 30 Act A293 of 1975). At the moment there is yet another amendment which is awaiting the Royal Assent. In the legislative exercise in 1973 penalties attached to the various offences under the law were enhanced. For the offence of possession of any dangerous drugs under section 12(2) of the Ordinance, for example, the penalty was increased from a maximum of $10,000 fine to a 35 maximum of $20,000 fine and the maximum imprisonment was increased from three years to five years. In the legislative exercise in 1975, among other things, a new provision (new section 39A) was inserted whereby it is provided that whoever is convicted of an offence under the Ordinance and the subject matter of which is heroin or morphine of five grams or more in weight shall be liable to 5 imprisonment (with no option of a fine) for a term not exceeding fourteen years and not less than three years and he shall also be liable to whipping of not less than six strokes It is common sense to say that behind these legislative exercises was the 10 country, the degenerating effect of the misuse of dangerous drugs and the attendant dangers it has posed to society itself. The amendments passed by Parliament therefore reflect the public policy. It must be presumed that behind the public policy is the consideration of public interest. 15 The change in the attitude of the legislature itself during the last three years reflects the seriousness of the problem. In my view the courts will not be performing their functions honestly if the seriousness of the situation is not reflected in the sentence imposed or if the sentence 20 appears to defeat the object of the statute. This is not saying that the courts in the treatment of drug offences should at all times be severe. Each case has to be determined on its own merits. But in every case the courts must be realistic and rational [Emphasis added] 25 [65] The sentences passed by the SCJ are in accordance with the law and the SCJ has considered the gravity of the offence and public interest . The SCJ does have discretion in regard to the second and third charges, and 30 However, in respect of the first charge of cultivating cannabis, 3 plants had been seized, not one. She does not have any discretion to hand down a lenient sentence although the Appellant pleaded for leniency. I also considered that the seeds found in his custody could also be grown into 35 more cannabis plants by the Appellant had he not been arrested and charged. In this regard, I refer to the case of PP v Lee Lam (F) [1952] 1 MLJ 86, where Wilson J. held: So far as this case is concerned the Legislative authority has laid it down that an accused person charged with an offence such as that alleged in the first charge shall be sent to prison for a period of not less 5 than one year. If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated. Whilst I have every sympathy with the domestic circumstances of the accused person, I find it impossible to allow myself to be influenced by them. 10 During the period of this Emergency the Executive and the Legislature alone can be fully aware of the reasons which make extraordinary legislation necessary. Judges and Magistrates are not in a position and are not entitled to query such legislation unless it can be found to be ultra vires. 15 [Emphasis added] CONCLUSION [66] Premised upon the above considerations, the Court found that the prosecution had proved its case beyond a reasonable doubt against the 20 Appellant as per the charges preferred and that there was no serious misdirection in law or fact by the Sessions Court Judge such that would render his conviction unsafe. Therefore, the appeal against conviction and sentence was dismissed. 25 Order accordingly. Dated 28 April 2025 Sgd. 30 NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Taiping 35 For the Appellant: M. Saravanan Messrs. S. Muthu & Co, Teluk Intan, for YBGK. 5 For the Respondent: DPP Mohd. Waffy Bin Ismail Pejabat Timbalan Pendakwa Raya Negeri Perak, Taiping. 10