AIZUDDIN BIN AZIZAN v Pendakwa Raya (W-05(SH)-313-07/2022)

(A) INTRODUCTION 45 [1] The appellants were charged separately with an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act), punishable under section 39B (2) of the Act. On 3 February 2022, pursuant to an application by the learned Deputy Public Prosecutor (DPP) under section 170 of the Criminal Procedure Code (CPC), both cases were heard jointly.

The charge against Aizuddin Bin Azizan (1st Appellant) is as follows: Case No: WA-45A-40-11/2020 “Bahawa kamu pada 23.04.2020, jam lebih kurang 3.10 petang di kawasan tempat letak kereta hadapan CRSC Group, No. 7 Jalan Seri Rajang, Taman Seri Rampai, di dalam daerah Wangsa Maju, dalam 55 Wilayah Persekutuan Kuala Lumpur telah mengedar dadah berbahaya iaitu 487.6 gram cannabis dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama.” 60 S/N 0n2w9cLg50mtcEVcARzn6Q

(ii) The charge against Mohd Firdaus bin Ismail (2nd Appellant) is as follows: Case No: WA-45A-41-11 /2020 “Bahawa kamu pada 23.04.2020, jam lebih kurang 3.25 petang di 65 kawasan tempat letak kereta hadapan CRSC Group, No. 7 Jalan Seri Rajang, Taman Seri Rampai, di dalam daerah Wangsa Maju, dalam Wilayah Persekutuan Kuala Lumpur telah mengedar dadah berbahaya iaitu 5,055.8 gram cannabis dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 70 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama.” [2] Both appellants claimed trial, and at the conclusion of it, the High Court, on 26 July 2022, found them guilty, convicted, and sentenced each of them to life imprisonment from the date of arrest (23 April 2020) and 15 strokes of 75 rotan. Aggrieved by the High Court's decision, the appellants filed this appeal against their convictions and sentences. It is to be noted too, that the learned DPP has also filed a cross-appeal against sentence which was later dismissed by the Court of Appeal. 80 [3] We heard the appeals on 25 September 2025 and unanimously dismissed them. We will be writing only one ground of judgment to avoid duplicity. In this ground of judgment, we will refer to Aizuddin as the 1st Appellant and Mohd Firdaus as the 2nd Appellant, and collectively as “both appellants”. Our reasons are as follows:

(B) THE SALIENT FACTS [4] The prosecution called six witnesses, and the pertinent facts, according to the prosecution’s narrative, are as follows: 90 S/N 0n2w9cLg50mtcEVcARzn6Q [5] On 23 April 2020, based on information received:

SP4, Inspector Mohd Hafizie bin Ibrahim, and a police team set up surveillance along Jalan Seri Rajang, Taman Seri Rampai, Wangsa Maju, Kuala Lumpur.

At around 3.10 pm, SP4 observed a grey Toyota Vios registration 95 number WC6218X (Vios car), driven by the 1st Appellant. He was alone at the material time.

He parked the Vios in front of the CRSC Group building on the same road. About 15 minutes later, SP4 observed a black Nissan Almera registration number W3560M (Almera car) stop in front of 100 the grey Toyota Vios, which the 2nd Appellant was driving. The 2nd Appellant was alone at the material time.

SP4 observed the 1st Appellant got out of his Vios car and walked towards the Almera car, carrying a black bag he had taken from his vehicle.

When the 1st Appellant opened the left back passenger door of the Almera car, SP4 instructed the police team to ambush and arrest both appellants. [6] In the following ensuing events:

SP4 introduced himself as a police officer and showed his authorisation card. Both appellants appeared panicked and scared.

Both were subject to a body search, but nothing incriminating was found on them. 115 S/N 0n2w9cLg50mtcEVcARzn6Q

The police searched a black bag on the left back passenger seat of the Almera car but found nothing incriminating.

Upon further examination, SP4 found a white paper bag labelled 'SKECHERS' on the left back passenger seat. 120 Inside the paper bag, SP4 discovered five (5) plastic blocks of compressed dried plant material, wrapped in clear plastic and blue paper, suspected to be cannabis (Ganja).

SP4 seized the white paper bag and its contents. 125 [7] During the investigation of the Vios car:

SP4 found a black cross-body bag labelled 'GUCCI' under the driver's seat.

Inside the bag, SP4 discovered one plastic block of compressed dried plant material (wrapped in clear plastic and 130 blue paper), suspected to be cannabis (Ganja).

The same bag also contained a dark blue wallet with the 1st Appellant's identification card.

SP4 seized both the cross-body bag and its contents.

There were no other occupants in either car. 135 [8] Both Appellants and the incriminating items were then brought to Pejabat Bahagian Siasatan Jenayah Narkotik IPK Kuala Lumpur for S/N 0n2w9cLg50mtcEVcARzn6Q further action. At the police station, SP4 weighed the incriminating items and marked the exhibits. SP4 also made a police report, i.e. Wangsa Maju 140 Report 4123/2020 (P38). [9] The said Almera car is owned by SP2, Noor Khalijah binti Mazlan, who is the 2nd Appellant's wife then:

SP2 was married to the 2nd Appellant on 6 December 2014 and 145 divorced on 8 July 2020.

SP2 bought the car in 2014. On 23 April 2020 at about 11.00 am, SP2 had asked the 2nd Appellant to buy some groceries as fasting began the next day.

It was also during the Movement Control Order (MCO), and SP2 150 did not leave the house.

SP2 gave the 2nd Appellant money and a list of groceries to buy. Thereafter, the 2nd Appellant left in the said Almera car, and he did not return home nor respond to any calls/messages from SP2.

SP2 confirms that she had not used the car since the start of the MCO on 18 March 2020. The 2nd Appellant used the Almera car to buy groceries since the MCO began.

SP2 had never seen the said incriminating items before. SP2 denied that the said incriminating items and the white paper bag 160 belonged to her. S/N 0n2w9cLg50mtcEVcARzn6Q [10] The said Vios car:

Was initially bought by SP5, Syazwan bin Saberi, in 2016 and 165 later sold to SP3, Mohd Rizal Izrin bin Mohd Nor, in December 2019.

During the MCO, the 1st Appellant borrowed the said Vios car from SP3 for work purposes, agreeing to pay the monthly loan and to return the vehicle upon finding a buyer.

SP3 and the 1st Appellant were schoolmates, and SP3 did check the car before handing it over. [11] On 24 April 2020:

At about 1:00 am, SP4 handed over the marked exhibits and 175 related documents, along with both appellants, to SP6, Inspector Muhammad Fadli bin Abd Rahman, the Investigation Officer (IO).

SP6 marked the exhibits and, on 5 May 2020 at about 1:56 pm, handed them to SP1 (Chemist), Dr Saravana Kumar a/l 180 Jayaram, for analysis.

After the analysis, SP1 confirmed that the materials seized from the Almera car were 5,055.8 grams of cannabis, and from the Vios car were 487.6 grams of cannabis.

SP1 also confirmed that cannabis is classified as a dangerous 185 drug under Section 2 of the Act. S/N 0n2w9cLg50mtcEVcARzn6Q Findings of The Trial Judge at The End of The Prosecution’s Case [12] At the end of the prosecution's case, the learned High Court Judge 190 (HCJ) found that the prosecution had established a prima facie case for the said charge and called upon the appellants to enter a defence. The learned HCJ held: “Setelah memberikan penilaian maksimum terhadap keseluruhan keterangan dan berdasarkan alasan yang dinyatakan sebelum ini, 195 Mahkamah ini berpuas hati dan mendapati bahawa pihak pendakwaan telah berjaya membuktikan kes prima facie terhadap kedua-dua OKT1 dan OKT2 bagi pertuduhan yang mereka hadapi. Berdasarkan seksyen 180(3) Kanun Tatacara Jenayah, kedua-dua OKT dengan ini diperintahkan untuk membela diri” 200 After the three alternatives were explained to the appellants, they elected to give sworn evidence. First Appellant’s Proffered Defence 205 [13] It was argued in Court that:

The 1st appellant and 2nd Appellant, who were schoolmates, had purportedly arranged to meet on 23 April 2020 to discuss their annual lemang business for Raya, which they had been doing for the past 5 years.

The 1st Appellant was driving a Vios car, arrived at the parking lot first, and after waiting for about 10-15 minutes, the 2nd Appellant arrived in a black Almera car.

The 1st Appellant got out of this car and went towards the Almera car and entered the vehicle through the back passenger 215 door. S/N 0n2w9cLg50mtcEVcARzn6Q

Before he could close the door, he was held by someone who identified himself as a police officer.

Both appellants were then asked for their identification cards. The 1st Appellant panicked, fearing arrest for violating the MCO. 220 [14] Subsequently:

After the police seized the Vios car keys from the 1st Appellant's trouser pocket, within five minutes, someone announced that something had been found, but the 1st Appellant did not know 225 what it was or where it was found.

The 1st Appellant claimed that he was not shown the items at that time.

Both appellants were then taken to the police station, where the 1st Appellant claimed he first met SP4, stating that SP4 was not 230 present during the initial raid and arrest.

At the police station, SP4 asked both appellants to hand over their phones and wallets, and it was there that both appellants were shown the items seized from the Almera car. 235 [15] On 23 April 2020, at about 9:00 pm:

The 1st Appellant was taken to his house by the police, but nothing incriminating was found.

Both appellants were then handed over to SP6 on 24 April 2020 at about 1:00 am. 240 S/N 0n2w9cLg50mtcEVcARzn6Q

The 1st Appellant denied any knowledge of the sling bag and claimed it did not belong to him.

He testified that during the raid, police took his identification card, and he was certain that the police had placed his identification card in the sling bag. 245 [16] After being handed over to SP6:

The 2nd Appellant told the 1st Appellant that SP6 was having an affair with the 2nd Appellant's wife (SP2).

SP6 and SP2 were later reportedly married while both 250 Appellants were still in remand at Sungai Buloh, and SP6 was still conducting the investigation.

The 1st Appellant believes that they were persecuted and that the charges against them were motivated by malicious intent. 255 Second Appellant’s Proffered Defence [17] On 21 April 2020:

The 2nd Appellant testified that two days before his arrest, he went to Bukit Aman Police Station to lodge a complaint against SP6, alleging that SP6 was having an affair with his wife (SP2).

The police officer at the station advised him to gather evidence or photographs to support his allegation, and the 2nd Appellant then went home. 265 S/N 0n2w9cLg50mtcEVcARzn6Q [19] On 23 April 2020:

SP2 had asked the 2nd Appellant to buy groceries for the fasting month. Although he initially wanted to use his motorcycle, SP2 insisted that he use the Almera car because there were many groceries to buy.

This was supposedly the first time the 2nd Appellant used the Almera car during the MCO. Before the MCO, SP2 was the vehicle's primary user.

Before leaving home around 1:00 pm, the 2nd Appellant sent a WhatsApp message to the 1st Appellant to meet in Sri Rampai 275 that day to discuss their annual lemang business for Raya.

He also informed the 1st Appellant that he would be buying groceries before their 3:00 pm meeting.

The 2nd Appellant left home at about 1:45 pm, went to Giant Setapak for groceries, and arrived in Sri Rampai around 3:20 280 pm, parked in front of the 1st Appellant’s car.

The 1st Appellant entered the Almera car through the back door, but before he could close it, there was a commotion. Suddenly, the 2nd Appellant’s door was pulled open, and he was dragged out by someone who identified himself as a police officer.

The 2nd Appellant panicked because he was afraid that he would be arrested and sentenced for not abiding by the MCO. 290 S/N 0n2w9cLg50mtcEVcARzn6Q [20] Subsequently:

Both appellants were subjected to a body search, but no incriminating items were found on them. A police officer then requested their identification cards.

The police searched the Almera car and found a white paper 295 bag containing cannabis (Ganja) in the back passenger footwell.

The 2nd Appellant purportedly was shocked to discover that the white paper bag contained drugs. Although he was aware of the white paper bag and a black bag on the back seat, he did 300 not inspect them, believing the items belonged to SP2, as the car was hers. [21] The 2nd Appellant claimed that:

He was not aware whether the police searched the Vios car, but 305 he heard a voice saying that they had found it and both appellants were taken to the police station.

The 2nd Appellant first met SP4 at the police station, and SP4 was not involved during the raid and arrest earlier. SP4 then asked both appellants to hand over their phones and wallets.

At the police station, both appellants were shown the incriminating items seized. 315 S/N 0n2w9cLg50mtcEVcARzn6Q [22] On 23 April 2020, at about 9.00 pm:

The 2nd Appellant was brought to his house, and a search of his home found nothing incriminating.

Both appellants were handed over to the SP6 on 24 April 2020 at about 1.00 am.

At that time, the 2nd Appellant had recognised SP6 as the man who was having an affair with his then wife (SP2) for the past few months and finally knew that his arrest was a trap.

The 2nd Appellant identified SP6 from photos on SP2's phone. SP2 uses the telephone number 011-26796095. 325 [23] When confronted, SP2 denied the affair:

On 25 April 2020, the 2nd Appellant had given his statement to a police officer regarding SP6's and SP2's affair but was not sure if it was written down.

On 8 July 2020, the 2nd Appellant was brought to the Shariah Court for his divorce proceedings.

In March 2021, the 2nd Appellant was informed by his younger sibling that SP2 and SP6 were married.

The 2nd Appellant believes that he was framed for the offence 335 based on a conspiracy between SP6, SP2 and SP4 so that SP6 can marry SP2. 340 S/N 0n2w9cLg50mtcEVcARzn6Q [24] SD3, who is SP6’s ex-wife, gave evidence that:

They were married from 2008 until 2020, and their divorce was finalised in 2021.

SD3 had contacted SP2 in May 2020, asking her not to interfere in her and SP6’s marriage.

SP6 had two phone numbers and provided phone bills (D47a-e) showing that SP6 called SP2 many times between April and September 2020, with calls starting on 24 April 2020.

SP6 also met SP2 several times in May and June 2020.

The calls were said to be romantic, not related to the 350 investigation. However, SD3 could not provide any screenshots of conversations or location-tracking evidence. Findings of The Trial Judge at The Close of The Defence Case [25] At the close of the defence case, the learned HCJ found that the 355 defence had failed to raise any reasonable doubt, and that the defences of both accused persons were mere denials, unfounded, and merely the creation of both appellants. [26] The learned HCJ found that both appellants have failed to raise any 360 reasonable doubt regarding the ownership of the cannabis found in the Toyota Vios (driven by 1st Appellant/ OKT1) and the Nissan Almera (driven by 2nd Appellant/ OKT2). Both also failed, on the balance of probabilities, to rebut the statutory presumption of trafficking under section 37(da)(vi) of the Act. As a result, both appellants were found guilty, convicted, and 365 sentenced to life imprisonment and 15 strokes of the rotan. S/N 0n2w9cLg50mtcEVcARzn6Q

(C) THE APPEALS: [27] The 1st Appellant has filed fifteen (15) grounds of appeal; however, the learned counsel in his submission stated that he will confine to one main ground of appeal to be canvassed before us, as follows:

The HCJ has failed to carry out a maximum evaluation of the evidence of the 1st appellant, who denied that his wallet and Identity Card were found in the cross-body bag (bag silang), which contained the compressed blocks (ketulan mampat) of cannabis. His evidence was reasonable and rational, and cast 375 doubt on the veracity of SP4's evidence. [28] The 2nd Appellant, meanwhile, filed thirteen (13) grounds of appeal; however, the learned counsel in his submission stated that he will confine himself to the issues below:

On the credibility of SP4 regarding the handling of the dangerous drugs and the exhibits.

The testimony of SP6 regarding the handling of the dangerous drugs/exhibits after the seizure until it was sent to the Department of Chemistry Malaysia for analysis.

Doubts about P36, a set of keys of the Nissan Almera. [29] Although this judgment will, fundamentally, focus upon the points raised in the appeal, the judgment will also address the learned HCJ’s analysis of the evidence and findings as a whole:

A perusal of the learned HCJ’s grounds will reveal that the learned HCJ had, at the conclusion of the prosecution case, S/N 0n2w9cLg50mtcEVcARzn6Q clearly outlined the duty of the court at the close of the prosecution case.

The learned HCJ also set out the court’s statutory duty under 395 section 180(1) of the CPC.

The learned HCJ had also cited the principal decisions of the apex court in Ahmad Najib bin Aris v PP [2009] 2 CLJ 800, Balachandran v PP [2005] 2 MLJ 301 and PP v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393, which had set out the duty 400 of a trial court when evaluating evidence at the close of the prosecution case.

(D) ANALYSIS AND FINDINGS BY THE COURT OF APPEAL [30] 1st Appellant:

The learned HCJ has failed to carry out a maximum evaluation of the evidence of the 1st appellant, who denied that his wallet and Identity Card were found in the cross-body bag (bag silang), which contained the compressed blocks (ketulan mampat) of cannabis. His evidence was reasonable and rational, and cast 410 doubt on the veracity of SP4's evidence. 2nd Appellant:

(ii) The credibility of SP4 regarding the handling of the dangerous drugs and the exhibits We find that the issues above are interrelated; therefore, we will address 415 both simultaneously. S/N 0n2w9cLg50mtcEVcARzn6Q [31] The learned counsel for the 1st appellant has submitted at length on the above issues and submitted that the learned HCJ has erred in law and fact by failing to conduct the following (briefly):

The HCJ has failed to conduct a thorough assessment before concluding that a wallet (P33) containing the identification card of the 1st appellant (OKT1, P34) was found in a sling bag (P32) with cannabis (P18) under the driver’s seat of a Toyota Vios driven by OKT1.

The court accepted the testimony of SP4 without fully considering the cross-examination, the re-examination, or the defence’s evidence.

The court found, at the prima facie stage, that SP4 discovered a black Gucci sling bag (P32) under the driver’s seat, containing 430 a compressed block of cannabis (P18, 487.6g) and a wallet (P33) with OKT1’s identification card (P34). This led the court to conclude that OKT1 had possession of the cannabis.

In the defence case, OKT1 argued it was unreasonable for their ID card to be placed with drugs in the bag under the seat, 435 especially during the MCO, when police roadblocks would require showing the ID card.

The court, however, did not address or analyse this controversial issue in its judgment.

SP4 testified that the wallet and ID card were found in the sling 440 bag with the cannabis, and this was recorded in the search list form. S/N 0n2w9cLg50mtcEVcARzn6Q

OKT1 claimed that the ID card was taken by police during the initial arrest, before the bag and cannabis were found, and that the wallet was only handed over to SP4 later at the police 445 headquarters.

OKT1 denied knowledge of the bag and cannabis, insisting the wallet and ID card were on him and suggested the police placed the ID card in the bag.

OKT1 also argued it was illogical to put his ID card with drugs, 450 especially since other cards and cash were missing from the wallet, and the bag was in a hard-to-reach place.

During cross-examination, OKT1 maintained this defence.

Cross-examination of SP4 revealed that there may have been other items in the wallet, but SP4 only recorded the ID card, 455 claiming that only the ID card was needed as evidence.

SP4 selectively recorded evidence to strengthen the prosecution’s case and omitted other facts, making SP4 an unreliable witness.

The court is criticised for accepting SP4’s testimony entirely, 460 without supporting evidence such as photographs, fingerprints, DNA, or corroboration from other officers.

The OKT1 was denied the right to know the court’s reasoning, as no specific reasons were given for the findings, amounting to a “non-speaking judgment”. 465 [32] The learned counsel submitted that the present case involves the prosecution's narrative that the accused's wallet and ID card were found S/N 0n2w9cLg50mtcEVcARzn6Q in a bag containing drugs, which is highly improbable, and cited PP v Norhazwan Abd Wahab [2014] CLJU 275, where the Court of Appeal 470 held: ”7.3. SP7 testified that he recovered the Respondent's wallet containing his identity card, driving licence and Maybank ATM card, from the bag whereas the Respondent said that it was recovered from his rear trouser pocket. The learned trial Judge held that it was 475 more probable for the wallet to be recovered from the Respondent's trouser pocket as "no sane or reasonable man would place his wallet containing his identity card in the bag P14 knowing that the said bag contained proscribed drugs which attract the death penalty". While the learned trial Judge may have been a little too dramatic when he 480 said that the recovery of the wallet in the bag was "too good to be true", but what it really pares down to is that it is highly improbable for the Respondent to place his wallet in the bag containing the drugs unless of course he was unaware that the bag did in fact contain the drugs, in which case then it cannot be said that the Respondent had 485 knowledge of the drugs being in the bag.” [33] The 1st appellant was denied the right to know the court’s reasoning, as no specific reasons were given for the findings, amounting to a “non-speaking judgment” and cited Balasingham v. PP [1959] 1 MLJ 193, 490 where the High Court held that: “The trial Court is under a statutory obligation under section 308 of the Criminal Procedure Code to transmit to the Appellate Court the grounds of decision which convey to my mind a reasoned judgment on the facts and the law, not merely the conclusion arrived at. The 495 advantage of a “speaking” judgment needs no emphasis. In fact, in Murugiah v Public Prosecutor [1941] MLJ 17 and Public Prosecutor v Low Toh Seng [1941] MLJ 1 both Horn J. and Terrell Ag. C.J. felt that the absence of reasons indicates the possibility that such vital considerations as the weight of evidence and the possibilities of the 500 case may not have influenced the mental process of the trial Judge in arriving at the ultimate finding. After all there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be S/N 0n2w9cLg50mtcEVcARzn6Q advanced in the light of evidence to the contrary and the surrounding 505 circumstances. [34] The learned counsel for the 2nd appellant submitted that the learned HCJ has erred in law and fact by failing to decide that the evidence of SP4 as the complainant/ raiding officer in this case is full of doubt, which has 510 raised a reasonable doubt regarding the prosecution’s case. SP4’s evidence is full of suspicion and is the sole witness. His evidence was not supported by any other evidence from the other raiding officers, and therefore, the doubt arising from SP4’s evidence was never clarified and constitutes a reasonable doubt. 515 [35] The learned DPP submitted that the learned HCJ rightly accepted the evidence of SP4, who was a consistent and credible witness:

SP4’s evidence was also supported by contemporaneous documents, i.e. the Police Report (P38) and the Search List 520 (P35).

Although SP4 made the Police Report (P38) about 9 hours after the arrest because of an intelligence investigation, it is apt to note that SP4 gave an explanation and that the report was made within 24 hours of the arrest. 525 [36] Since, the charge against the Appellants were based on credible evidence by SP4 and at the outset, SP4 was not a witness that require corroboration, fingerprint evidence/ DNA, if available, would only be corroborative evidence, without which, would not affect the element of 530 possession as the dangerous drugs were seized from the obvious and unconcealed white paper bag on the back passenger seat of the said S/N 0n2w9cLg50mtcEVcARzn6Q Almera car driven by the 2nd Appellant and from the black sling bag under the car seat of the said Vios car driven by the 1st Appellant where the 1st Appellant's identification card was also found in the same bag. It is apt to 535 note that SP6 had explained that no fingerprints were ably lifted due to inadequate features, leaving no gap in the prosecution's case [37] It is trite law that the credibility of a witness is best left to the trial judge, who has the advantage of hearing the witness, unless there is a 540 good reason not to accept the finding. Further, even if there is any contradiction in witness evidence or even lies in one or two points, his evidence should not be totally rejected. We find support in the following authorities:

Lee Ah Seng & Anor v Public Prosecutor [2007] 6 MLJ 1; 545 [2007] 5 CLJ 1, where the Federal Court observed: “Essentially, the appeals were against the findings of the learned trial judicial commissioner in that he accepted the evidence of SP7 and found him to be a witness of truth who had positively identified both the appellants as amongst the 550 assailants of the deceased. SP7 had testified that there was moonlight, which enabled him to witness the attack of the deceased. The approach to be taken by an appellate court when dealing with a trial court’s assessment of the credibility of a witness is 555 well established by high authorities. The credibility of a witness is primarily for the trial judge. An appellate court should always be slow in disturbing such a finding of fact arrived at by the judge who had audio-visual advantage of the witness, unless there are substantial and compelling 560 reasons for disagreeing with the finding. Discrepancies will always be found in the evidence of a witness, but what a judge has to determine is whether they are minor or material discrepancies. It would be wrong to say just because a witness may have contradicted in his evidence or even told lies on one 565 or two points, his evidence should be totally rejected. In the final analysis it is for the trial judge to determine which part of the S/N 0n2w9cLg50mtcEVcARzn6Q evidence of a witness he is to accept and which to reject (see Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209 (FC); Dato Mokhtar bin Hashim & Anor v Public Prosecutor 570 [1983] 2 MLJ 232; [1983] 2 CLJ 10; Lai Kim Hon & Ors v Public Prosecutor [1981] 1 MLJ 84 (FC); Che Omar bin Mohd Akhir v Public Prosecutor [1999] 2 MLJ 689; [1999] 2 CLJ 780 (CA)). It is not the function of an appellate court to make primary findings of facts (see Public Prosecutor v Mohd Radzi Abu Bakar [2005] 575 6 MLJ 393; [2005] 6 AMR 203; [2006] 1 CLJ 457 (FC)”. (emphasis added) …. Nik Hashim FCJ further said as follows: “Having considered the reasons of the Court of Appeal for 580 agreeing with the trial court on the credibility of SP7, I am inclined to agree with it. In coming to such view, I am well aware of the well-known principle that in the event of doubt it must be given favourably to an accused person. But this is not the case here. In the present case, the testimony of SP7, in spite of its 585 infirmities, has impressed the learned trial judicial commissioner to find SP7 to be a witness of truth. In a case of this sort where everything depends on the credibility of a witness about what was said, the view formed by the primary trier of fact, is entitled to great respect and an appellate court lacking the audio-visual 590 advantage enjoyed by the trial court should be slow in disturbing the finding of facts arrived by a trial judge. The finding of credibility of SP7 as a truthful witness by the learned judicial commissioner is a primary finding of fact. Therefore, it is not the function of this court to substitute its finding for that of the trial 595 court.”

Md Zainuddin bin Raujan v Public Prosecutor [2013] 4 MLJ 596 the Court of Appeal held as follows: “[18] It is within the purview of the learned trial judge’s function 600 to assess the credibility of witnesses who gave evidence before him. He had the audio-visual advantage of assessing them. We have not. Further, it is also trite law that the appellate courts will always be slow to interfere in matters relating to the credibility S/N 0n2w9cLg50mtcEVcARzn6Q of witnesses. It serves no useful purpose for us to again and 605 again list down the line of authorities on this issue. [19] We are in no better position than the learned trial judge to assess the credibility of witnesses and in this case, PW5 in particular. In our considered views, this ground is devoid of any merit.” 610 [38] In the present case, with the benefit of the audiovisual advantage in hearing the evidence of SP4, including the vigorous cross-examination of SP4 by counsels for the appellants, the HCJ, at the end of the prosecution’s case, made his finding that SP4 was a credible witness and 615 accepted his evidence. This is reflected in his grounds of judgment, where the trial judge meticulously discussed the role of SP4. We will refer to the relevant paragraph for easy reference: "[19] Dalam kes hari ini, terhadap OKT 1, beliau dilihat memandu kereta Toyota Vios, nombor pendaftaran WC6218X oleh SP4 620 dan berhenti di tempat kejadian. SP4 mengesahkan hanya OKT1 seorang sahaja yang berada di dalam kereta tersebut. Menurutnya lagi, selepas lebih kurang 15 minit, OKT1 kemudiannya keluar dari kereta itu dan menghampiri sebuah kereta Nissan Almera, no. pendaftaran W3560M yang baru 625 sampai. Kereta Nissan Almera ini dipandu oleh OKT2 yang berseorangan dalam kereta tersebut. [20] Ketika OKT1 keluar dari kereta Toyota Vios, beliau dilihat membawa satu beg berwarna hitam yang diambil dari bahagian belakang kerusi penumpang di sebelah kiri. Sebaik 630 sahaja OKT1 sampai di bahagian pintu belakang sebelah kiri kereta Nissan Almera, SP4 dan pasukannya telah menyerbu dan menangkap kedua-dua OKT. [21] Pemeriksaan di dalam kereta Nissan Almera menemukan satu

beg kertas warna putih bertulis SKECHERS (P12) di 635 bahagian tempat letak kaki penumpang sebelah kiri kereta dan di dalamnya ditemui lima (5) ketulan mampat tumbuhan kering (P13-P17 & gambar P31(a-b)) yang kemudiannya disahkan sebagai cannabis seberat 5,055.8 gram. S/N 0n2w9cLg50mtcEVcARzn6Q [22] SP4 seterusnya telah memeriksa kereta Toyota Vios dan 640 menemui satu (1) beg silang warna hitam (P32) bertulis Gucci made in Italy di bahagian bawah tempat duduk pemandu dan di dalamnya ditemui satu (1) ketulan mampat tumbuhan kering (P18 & gambar P31(c-d)) yang kemudiannya disahkan sebagai cannabis seberat 487.6 gram. 645 [23] Turut ditemui dalam (P32) adalah dompet (P33) yang mengandungi kad pengenalan atas nama OKT1 (P34). [26] Dalam keadaan ini, berdasarkan kepada keterangan SP3 & SP5, Mahkamah ini mendapati kereta Toyota Vios WC6218X dari mana cannabis telah ditemui oleh SP4 650 sememangnya berada dalam milikan dan jagaan/kawalan OKT1 sejak dari tarikh ianya diserahkan oleh SP3 kepadanya pada 29.02.2020 sehinggalah tarikh serbuan dibuat iaitu pada 23.04.2020. Kes Wong Swee Chin v PP [1981] 1 MLJ 212 jelas menyatakan bahawa adalah suatu 655 prinsip undang-undang yang jitu bilamana keterangan seseorang saksi tidak dicabar maka ini bermakna keterangan berkenaan telah diakui dan diterima. (emphasis added) [27] Seterusnya, keterangan SP4 tentang serbuan dan penemuan cannabis di dalam kereta tersebut khususnya 660 penemuan dompet (P33) yang mengandungi kad pengenalan atas nama OKT1, (P34) di dalam beg galas (P33) dari mana cannabis seberat 487.6 gram jelas pada pandangan Mahkamah ini menunjukkan bahawa OKT1 mempunyai milikan terhadap cannabis tersebut 665 berdasarkan kepada prinsip yang dinyatakan dalam kes-kes yang dipetik di atas. (emphasis added) [29] Seterusnya bagi kes terhadap OKT2 pula, keterangan SP4 menyatakan yang beliau telah melihat OKT2 sampai di tempat serbuan lebih kurang 15 minit selepas OKT1 sampai dengan 670 menaiki sebuah kereta Nissan Almera no. pendaftaran W3560M. OKT2 dilihat memandu kereta tersebut berseorangan. [31] Sebaik sahaja OKT1 membuka pintu kereta tersebut, SP4 dan pasukan telah melakukan serbuan dan tangkapan terhadap 675 OKT1 dan OKT2 yang ketika itu masih duduk di kerusi pemandu kereta Nissan Almera berkenaan. [39] Mahkamah ini menerima keterangan SP2 bahawa hanya OKT2 sahaja yang menggunakan kereta Nissan Almera S/N 0n2w9cLg50mtcEVcARzn6Q tersebut di sepanjang tempoh PKP sehinggalah pada tarikh 680 beliau ditangkap oleh SP4 dan pasukan. Manakala SP4 pula, Mahkamah ini mendapati tiada sebab yang berjaya ditunjukkan untuk Mahkamah ini meragui dan menolak keterangan beliau selaku seorang pegawai polis yang hanya menjalankan tugas beliau. (emphasis added) 685 [40] Oleh yang demikian, berdasarkan keterangan SP2 dan SP4 serta keterangan dokumentar yang dikemukakan, Mahkamah ini mendapati bahawa pihak pendakwaan telah berjaya membuktikan elemen milikan terhadap OKT2 bagi cannabis seberat 5,055.8 gram yang ditemui dalam kereta 690 Nissan Almera W3560M. (emphasis added) [39] We find that learned HCJ did consider the defence of 1st Appellant, which can be seen at para [48] – [54] of his ground of judgment, briefly as follows:

OKT1 claims to have met OKT2 at the scene after receiving a phone call from OKT2 to discuss their annual project of selling lemang before Hari Raya. OKT1 arrived first and waited about 10–15 minutes before OKT2 arrived in a Nissan Almera.

After OKT2 parked in front of OKT1's Toyota Vios, OKT1 700 entered OKT2's car via the back door due to a baby seat in the front passenger seat. At this point, OKT1 was arrested by someone claiming to be a police officer.

Both individuals were taken out of the car, searched, and their identification cards were taken.

Shortly after, OKT1 heard someone say “jumpa”, and both were taken to IPPK Kuala Lumpur. S/N 0n2w9cLg50mtcEVcARzn6Q

OKT1 claims to have only met SP4 and saw the evidence for the first time at IPPK Kuala Lumpur. OKT1 denies ownership of the bag and the drugs found in the bag.

OKT1 also argues it is unreasonable for their identification card to be placed with drugs in the sling bag found under the driver's seat, as during the incident, the country was under the MCO. OKT1 had to pass at least two roadblocks to reach the scene, and at each, officers would check their identification card to 715 ensure they did not cross the 10-kilometre boundary.

Furthermore, OKT1 claims that when they were handed over to SP6, OKT2 informed that SP6 had an affair with his wife and that the charges against them were an act of persecution and a malicious plan. 720 [40] We also find that learned HCJ did consider the defence of 2nd Appellant, which can be seen at para [55] – [63] of his ground of judgment, briefly as follows:

OKT2 claims that SP6 had an affair with SP2, who is OKT2's 725 ex-wife.

OKT2 went to Bukit Aman two days before the incident to make a complaint but was advised to return with evidence or photos.

OKT2 supports OKT1's claim that they planned to meet in Sri Rampai to discuss their annual plan to sell lemang for Hari 730 Raya. OKT2 went to the scene after shopping at Giant, driving SP2's car. S/N 0n2w9cLg50mtcEVcARzn6Q

Upon arrival, OKT2 parked in front of OKT1's Toyota Vios. OKT1 entered OKT2's car through the back door because a baby seat was in the front. The police then raided and arrested 735 them, searched their bodies, and confiscated their identity cards.

OKT2 alleges the police found a white paper bag containing drugs on the rear passenger floor. OKT2 saw the bag but did not know its contents. After someone said "found," both were 740 taken to IPPK Kuala Lumpur, where they first met SP4.

OKT2 also claims to have informed the officer recording his statement about the relationship between SP2 and SP6.

OKT2 asserts he had no control over the Nissan Almera as it belonged to SP2, and there was a spare key. He also claims the 745 key (P36) did not match the photo (P26(d)), insisting the charges against him were malicious and a setup.

The defence presented SP6's ex-wife as a witness (SD3), who provided her phone bill (D47a-e) showing a Maxis ONE Share plan for number 0176017962, said to be SP6's second number, 750 indicating call records between SP6 and SP2.

However, these records show the first call between SP6 and SP2 was on 24.04.2020, the day after the incident, with no record of calls before that date. 755 [41] Similarly, at the end of the defence’s case, the learned HCJ analysed the defence and said that, after examining the testimony of OKT1, OKT2, SD3 and D47a-e against the prosecution witnesses. The learned HCJ was unable to find any evidence that supports the allegation of a S/N 0n2w9cLg50mtcEVcARzn6Q conspiracy to persecute OKT1 and OKT2 based on the claim of an illicit 760 relationship between SP6 and SP2, the wife of OKT2 at the material time. [42] Regarding the alleged affair between SP6 and SP2, the learned HCJ meticulously observed the facts before the court and made a finding. We agree with the finding of the learned HCJ, as follows: 765 “[67] Tangkapan ini dibuat oleh SP4 dan penglibatan SP6 hanya bermula selepas OKT1 dan OKT2 berserta barang-barang kes diserahkan kepada beliau pada jam lebih kurang 1 pagi 24.04.2020. Rekod panggilan telefon yang dikemukakan juga menunjukkan panggilan pertama antara SP6 dan dan SP2 770 adalah pada tarikh tersebut. [68] SP2 juga dalam keterangan beliau menegaskan beliau hanya mengenali SP6 selepas kejadian dan menafikan sekeras-kerasnya wujudnya sebarang hubungan sulit antara beliau dengan SP6. 775 [69] Begitu juga dengan SP6 yang menegaskan tidak mengenali SP2 sebelum kejadian dan mula menghubungi SP2 untuk menentusahkan hak milik kereta Nissan Almera yang digunakan oleh OKT2. [70] Dakwaan yang satu aduan telah dibuat di Bukit Aman tentang 780 hubungan sulit SP6 dan SP2, dua (2) hari sebelum kejadian juga tidak disokong oleh apa-apa keterangan dokumentar. Adalah mustahil untuk OKT2 sekadar pergi membuat aduan secara lisan sahaja kerana dakwaan ini merupakan sesuatu yang serius. Semestinya ataupun sepatutnya wujud suatu 785 aduan bertulis yang dibuat, jika ada. Namun, tiada sebarang salinan aduan ini dikemukakan di Mahkamah untuk menyokong dan menunjukkan perkara ini benar-benar berlaku. [71] Memang diakui bahawa SP2 mengakui telah bercerai dengan 790 OKT2 selepas berlakunya kejadian ini dan akhirnya berkahwin dengan SP6 pada tahun 2021 selepas SP6 menceraikan (SD3). Namun, tanpa sebarang keterangan untuk menunjukkan yang mereka berdua sememangnya telah mengenali antara satu sama lain dan telah sedia menjalin 795 hubungan sebelum kejadian ini, Mahkamah ini tiada sebarang S/N 0n2w9cLg50mtcEVcARzn6Q alasan untuk menyandarkan dakwaan bahawa SP6 berniat jahat dan telah menganiaya OKT2 dan OKT1. Memandangkan dakwaan ini diutarakan oleh kedua-dua OKT, maka mereka bertanggungan untuk mengemukakan keterangan dan bukti 800 untuk menyokong dakwaan ini. (Lihat seksyen 103 Akta Keterangan 1950 [Akta 56]).” [43] Both Appellants also alleged that SP6 had acted with malicious intent and persecuted OKT2 and OKT1, to enable SP6 to marry OKT2’s wife (SP2). 805 We find that SP2's evidence confirmed that she and OKT2 are now divorced, and that she is now married to SP6. However, SP2 affirmed that she only got to know SP6 after this incident. We find that her evidence was supported by the phone call records (D47(a-e)) submitted by SD3, which show that the first call between SP6 and SP2 was after the date of the incidents. 810 [44] We refer to the examination-in-chief and cross-examination of SD3 (SP6’s ex-wife) regarding D47(a-e) Maxis Bill, in which SP6 was her supplementary holder. Her relevant evidence is as follows: “Soal utama 815 PB1: Ok Pn. dengan Pn sekarang ada 1 dokumen. Ada bundle lah bundle 1 dokumen ni merupakan bil Maxis, Pn ya? Bil Maxis ini siapa punya Pn? SD3: Ok. Bil ni kepunyaan saya lah sebab saya main number lah dan ada supplementary. 820 PB1: Ya? SD3: Kepunyaan anak saya seorang yang sulung dengan bekas suami saya. So dia menggunakan supplementary saya lah. Bil hanya pada saya lah billing tu. … 825 PB1: Sebelum tu apa nombor telefon suami Pn? SD3: 0176017962. S/N 0n2w9cLg50mtcEVcARzn6Q ….. PB1: Macam mana Pn boleh kenal nombor Khalijah? SD3: Saya memang sebab saya sendiri pun ada berhubung dengan 830 dia. PB1: Ok kalau ikutkan daripada statement ni sendiri, macam mana kita boleh kenal ni? SD3: Yang Digi Sarawak West tu 601162796095. 26 haribulan 4 ada. Soal balas 835 SD3: Yang Digi Sarawak West tu 601162796095. 26 haribulan 4 ada. TPR: Baru kenal sebulan. Jadi setuju dengan saya baru kenal sebulan mungkin bulan 4 lah? Dan setuju dengan saya panggilan pertama pun tadi bermula 24.4.2020 setuju kan? SD3: Setuju. Itu Sahaja Yang Arif. 840 PB4: Yang Arif. Pihak pembelaan menutup kes pada hari ini Yang Arif…”. [45] SP6, in his evidence affirmed that he did not know SP2 before the incident and only began contacting SP2 to verify ownership of the Nissan 845 Almera used by OKT2 during the material time. And the allegation that OKT2 made a complaint at Bukit Aman about an affair between SP6 and SP2, two

days before the incident, was also not supported by any documentary evidence. We find SP6 is a credible witness. 850 [46] Based on our observation of the relevant evidence, we agree with the HCJ findings that, without any evidence to show that the two of them had actually known each other and had already established a relationship before this incident, the Court has no reason to rely on the allegation that SP6 acted with malicious intent and persecuted OKT2 and OKT1. 855 S/N 0n2w9cLg50mtcEVcARzn6Q [47] Regarding the evidence of SP4, the learned HCJ had meticulously observed the facts before the court and made a finding. We agree with the finding of the learned HCJ, as follows: “[72] Seterusnya, dakwaan kedua-dua OKT bahawa mereka hanya 860 berjumpa dengan SP4 selepas dibawa ke IPPK KL selepas ditangkap dan bukannya di tempat kejadian tidak dapat diterima oleh Mahkamah ini. Jika benar dakwaan ini, ia bermakna yang SP4 telah tidak bercakap benar ketika memberi keterangan di Mahkamah. 865 [73] Penelitian keseluruhan keterangan SP4 mendapati, tidak pernah sekalipun dicadangkan kepada SP4 yang beliau tiada di tempat kejadian dan bukan beliau yang membuat tangkapan terhadap OKT1 dan OKT2 bersama pasukannya. Dakwaan OKT 1 dan OKT2 tentang kali pertama berjumpa SP4 di IPPK 870 KL adalah sesuatu yang hanya ditimbulkan ketika peringkat pembelaan dan tidak pernah ditimbulkan di peringkat pendakwaan. Dakwaan ini juga bertentangan dengan keterangan-keterangan dokumentar yang telah dikemukakan di peringkat pendakwaan. (Sila lihat (P38) laporan tangkap, 875 (P37) Laporan Serah/Terima Barang Kes antara SP4 dan SP6, (P35) Borang Senarai Geledah). [74] Dalam keadaan ini, tiada sebab ataupun alasan untuk Mahkamah ini menolak keterangan SP4 yang merupakan seorang pegawai polis yang menjalankan tugasnya, yang 880 pada hemat Mahkamah ini adalah seorang saksi yang bercakap benar dan boleh dipercayai. [75] Dari perbincangan di atas, dapat disimpulkan bahawa pembelaan yang dikemukakan hanyalah suatu penafian semata-mata dan merupakan rekaan yang tidak berasas dari 885 kedua-dua OKT. [76] Secara keseluruhannya, Mahkamah mendapati bahawa kedua-dua OKT telah gagal untuk menimbulkan sebarang keraguan yang munasabah bahawa cannabis yang ditemui dalam kereta Toyota Vios yang dipandu OKT1 adalah dalam 890 milikan beliau dan dalam kereta Nissan Almera yang dipandu oleh OKT2 adalah dalam milikannya. Kedua-dua OKT juga telah gagal atas imbangan kebarangkalian untuk menyangkal (rebut) andaian statutori pengedaran di bawah seksyen 37(da)(vi) Akta.” 895 S/N 0n2w9cLg50mtcEVcARzn6Q [48] We refer to P38, the police report by SP4, where he said in the relevant second paragraph as follows: “PADA JAM LEBIH KURANG 3.25 PETANG, SAYA TELAH NAMPAK SEBUAH M/KAR JENIS NISSAN ALMERA WARNA HITAM NO PENDAFTARAN W3560N YANG DI PANDU OLEH (82)

LELAKI MELAYU DAN TELAH BERHENTI DI HADAPAN M/KAR JENIS TOYOTA VIOS TERSEBUT. KEMUDIAN SAYA TELAH NAMPAK PEMANDU KERETA VlOS (B1) (1) LELAKI MELAYU TELAH KELUAR DARI KERETA DAN TELAH MENGAMBIL SEBUAH BEG BERWARNA HITAM DARI SAHAGIAN BELAKANG 905 KERUSI PENUMPANG SEBELAH KIRI KERETA TOYOTA VIOS LALU MEMBAWA BEG HITAM TERSEBUT MENGHALA KE PINTU SAHAGIAN BELAKANG SEBELAH KIRI PINTU KERETA NISSAN ALMERA DAN TELAH MEMBUKA PINTU KERETA ALMERA TERSEBUT. SETERUSNYA BERSAMA ANGGOTA 910 SERBUAN MENGHAMPIRI DAN TELAH MENAHAN KEDUA-DUA SASPEK. SETELAH SAYA KENALKAN DIRI SEBAGAI PEGAWAI KANAN POLIS DENGAN MENUNJUKKAN KAD KUASA POLIS KEPADA KEDUA-DUA SASPEK DAN JALANKAN 915 PEMERIKSAAN TUBUH SADAN TERHADAP KEDUA-DUA SASPEK TETAPI TIADA MENJUMPAI APA-APA BARANG SALAH. KEMUDIANNYA DI HADAPAN KEDUA-DUA SASPEK DAN SAKSI-SAKSI POLIS YANG LAIN, JALANKAN PEMERIKSAAN KE ATAS MOTOKAR JENIS ALMERA TERSEBUT 920 TELAH MENJUMPAI SATU BEG BERWARNA HITAM BERTULIS EL…BELAKKANG SEBELAH PENUMPANG, SAYA AMBIL DAN PERTIKSA BEG…BAHAGIAN TEMPAT BEG KERTAS WARNA PUTIH BERTULIS SKECHERS-. SAYA PERIKSA BEG TERSEBUT DAPATI DIDALAMNYA MENGANDUNGI (5) KETULAN MAMPAT 925 TUMBUHAN KERING DISYAKI DADAH JENIS GANJA (AB :5240 GRAM) YANG DI BALUTI DENGAN PLASTIK LUTSINAR DAN KERTAS BERRWARNA BIRU. SETERUSNYA SAYA TELAH BAWA PEMANDU M/KAR TOYOTA JENIS VIOS (B1)

LELAKI MELAYU UNTUK BUAT 930 PEMERIKSAAN KE ATAS KENDERAAN TERSEBUT. DIHADAPAN SASPEK (B1) (1) LELAKI MELAYU SERTA SAKSI-SAKSI POLIS YANG LAIN, SAYA TELAH BUAT PEMERIKSAAN KE ATAS TOYOTA JENIS VIOS TELAH MENJUMPAI DARI BAWAH TEMPAT DUDUK SEBELAH PEMANDU KERETA 935 TERSEBUT (1) BEG SILANG BERWARNA HITAM BERTULIS - S/N 0n2w9cLg50mtcEVcARzn6Q GUCCI made in Italy - DAN APABILA SAYA PERIKSA DIDALAMNYA ADA (1) KETULAN MAMPAT TUMBUHAN KERING DISYAKI DADAH JENIS GANJA ( AB :525 GRAM) YANG DI BALUTI PLASTIK LUTSINAR DAN KERTAS BERWARNA BIRU. 940 TURUT DIRAMPAS DARI DALAM BEG SILANG TERSEBUT ADA SATU BEG DUIT BERWARNA BIRU GELAP DIDALAMNYA ADA

KAO PENGENALAN ATAS PENAMA AIZUDDIN BIN AZIZAN, NO KPT 880513-56-6025. SAYA RAMPA$ BARANG KES, TANGKAP KEDUA-DUA SASPEK DAN BAWA BALIK KEDUA-DUA 945 SASPEK KE PEJABAT SAHAGIAN SIASATAN JENAYAH NARKOTIK IPK KUALA LUMPUR UNTUK TINDAKAN SELANJUTNYA.SEBAB-SEBAB TANGKAPAN DIBERITAHU DALAM BAHASA YANG MUDAH DIFAHAMI DAN DIAKUI FAHAM.” 950 [49] Briefly, the police report (P38) was evident that:

SP4 did a search in the Almera car and found a black beg at the back of passenger seat, SP4 found a white bag written the word “Skechers” and upon further search SP4 found the said white 955 paper bag which among others contain five compressed blocks of dried leaves suspected to be Ganja.

SP4 further brought OKT1 to the Vios car and did a search in front of OKT1 and few other policemen and found a black cross-body bag written 'GUCCI' Made in Italy and its contents under 960 the driver's seat of the said Vios car which also contain among other things a compressed dried leaves suspected to be Ganja and an ID card that belongs to OKT1.

We also find that P38 is consistent with the evidence of SP4. 965 [50] We refer to P35, the Borang Senarai Geledah which was acknowledged by both appellants as follows: S/N 0n2w9cLg50mtcEVcARzn6Q Briefly, the “Borang Geledah” (P35) was very clear that: S/N 0n2w9cLg50mtcEVcARzn6Q

The said white paper bag, which, among others, contained five 970 compressed blocks of dried leaves suspected to be Ganja, together with a key, a car remote control, was found at the back of the Almera car.

And the black cross-body bag written 'GUCCI' Made in Italy and its contents under the driver's seat of the said Vios car, which 975 also contains, among other things, compressed dried leaves suspected to be Ganja and an ID card that belongs to OKT1. We find that P35 is consistent with the evidence of SP4. [51] The learned counsel also raised the issue that P38 was lodged at 980 the IPD Wangsa Maju, not at the IPK Kuala Lumpur. And further submitted that this can be distinguished from the corrective report made by SP4 four days later, on 28 April 2020, which is P29, and clearly shows it was made at IPK KL, that is, an amendment to the “daerah,” and no other report. To our mind, the most important part is that the P38 was made within 24 985 hours. We hold that the mere fact that an amendment was made to the place where the police report was made is not in itself a valid ground to dismiss a case or to prevent the police from investigating (see PP v. Foong Chee Cheong [1969] CLJU 128 & Dato' Seri Anwar Ibrahim v. PP [2003] 4 CLJ 409). 990 [52] Having viewed these issues in their entirety:

We find that there was no overriding error on the part of the learned HCJ in his assessment of the credibility of SP4 and the acceptance of his evidence. 995 S/N 0n2w9cLg50mtcEVcARzn6Q

As such, the appellant's contention that SP4 was not a credible witness is without merit. SP4 is a police officer performing his duties.

We also find that the learned HCJ has given a maximum evaluation of the evidence of the 1st Appellants, who denied that 1000 his wallet and IC were found in the cross-body bag (bag silang), which also contained the compressed blocks (ketulan mampat) of cannabis.

We find that the Appellants' evidence is unreasonable, not supported by any documentary evidence and has failed to cast 1005 a doubt on the veracity of SP4's evidence. We find there is no merit to these issues, and find support in Yusri bin Pialmi v. Public Prosecutor [2011] 4 MLJ 533, the Federal Court states: “The learned trial judge and the majority of the Court of Appeal had found SP2 to be a witness of truth. SP2 was not an 1010 interested witness of truth, but a police officer performing his duties. He had related what he saw and did on that day. SP2’s evidence is credible and ought to be believed (see the cases of Public Prosecutor v. Mohamed Ali [1962] MLJ 257 and Public Prosecutor v. Teh Cheng Poh [1980] 1 MLJ 251)” 1015 (emphasis added) [53] The last two remaining issues:

The testimony of SP6 regarding the handling of the dangerous drugs/exhibits after the seizure until it was sent to the 1020 Department of Chemistry Malaysia for analysis

(ii) Doubts about P36, the set of keys of the Nissan Almera We find that the issues above are interrelated and therefore we will address both issues simultaneously. 1025 S/N 0n2w9cLg50mtcEVcARzn6Q [54] The learned counsel submitted that:

SP6, stated that he received the seized drug exhibits at 1:00 am on 24 April 2020 around 1:20 am the same day, a photographer was instructed to take photos of the drug exhibits.

However, it was only at 4:10 pm on 28 April 2020 that SP6 1030 prepared the drug exhibits in a box marked "FR", sent to the Chemistry Department of Malaysia for analysis.

The actual handover to the Chemistry Department only occurred at 1:56 pm on 5 May 2020.

There is no explanation from SP6 regarding what happened to 1035 the box marked "FR" between 28 April and 5 May 2020, a period of about eight days.

It is argued that this evidence must be carefully evaluated, as the movement and chain of custody of the drug exhibits are crucial from the time of seizure until they are handed over for 1040 analysis.

It is incorrect to simply assume the chain of custody was unbroken when there is no explanation from the responsible individual about the handling, care, and control of the exhibits during this critical period. 1045 [55] The learned DPP argues that:

There is no doubt about the identity of the drugs involved in the charges against both Appellants. S/N 0n2w9cLg50mtcEVcARzn6Q

The chain of custody for the drug exhibits was intact: the drugs 1050 seized from the Almera and Vios cars were the same ones analysed by the chemist and presented in court.

Witnesses (SP4, SP6, and SP1) identified the markings on the exhibits in court.

The learned HCJ thoroughly considered the chain of custody 1055 and found the identity of the exhibits to be well established. The defence did not contest this when the relevant witnesses testified.

The transfer of the drug exhibits between officers and to the chemist was properly documented. The exhibits were then 1060 produced and identified in court.

The black bag brought by the 1st Appellant into the Almera car was not seized as an exhibit because it did not contain drugs.

Its absence as an exhibit did not break the chain of evidence, as its existence was recorded in the police report. 1065

Given the strong chain of evidence and credible witnesses, the learned DPP submits there is no reason to overturn the HCJ’s findings. The Federal Court case of Amri Ibrahim & Anor v. PP [2017] 1 CLJ 671 is cited, emphasising that appellate courts should not disturb a trial judge’s findings on witness credibility 1070 unless there are compelling reasons. [56] The learned HCJ in his judgment finds as follows: “[13] Kombinasi keterangan SP4, SP6 dan SP1 yang telah membuat pengecaman pada tanda-tanda yang dibuat pada 1075 eksibit dadah serta keterangan dokumentar yang S/N 0n2w9cLg50mtcEVcARzn6Q dikemukakan (P35, P37, P38, P9 dan P10) menunjukkan penjagaan dan perjalanan eksibit-eksibit ini dari masa dirampas sehinggalah dikemukakan di hadapan Mahkamah ini. Mahkamah dengan ini mendapati bahawa dadah yang 1080 dirampas ketika serbuan adalah merupakan dadah yang sama seperti yang dikemukakan ketika perbicaraan di Mahkamah ini bagi kedua-dua kes. Oleh itu, rantaian keterangan berkaitan dadah yang dirampas tidak terputus. (there was no break in the chain of exhibits). (Lihat kes Loh Kah Loon v PP [2011] 1085 5 CLJ 345; Gunalan A/L Ramachandran & Ors v Public Prosecutor [2004] 489).” [57] In our view, the issue raised is unfounded and has no merit. The evidence of SP4 clearly proves that the drugs seized remained in his 1090 custody until they were handed over to the investigating officer (SP6). The chain of custody from SP6 to the chemist, SP1, and subsequently stored in the evidence room and brought to court, was also well maintained. There is not a shred of evidence to show that there was any break in this chain of custody that would cast doubt on the identity of the drugs that 1095 were found and seized by the police. We refer to Su Ah Ping v. PP [1979] CLJU 100; [1979] 1 LNS 100, where the Federal Court observed: "The complaint before us was not that there had been no proof that the exhibits were serviceable, but simply that there was a "break in 1100 the chain of evidence", and the prosecution should have called as witnesses all the officers through whose hands the exhibits passed from Inspector Takbir to the armourer and back to the Inspector. We do not think there is merit in this point. The question was whether the exhibits the Inspector produced were the guns and ammunition 1105 he found at the scene, and as when he produced them as those very guns and ammunition there was no objection by the defence, it would have been a waste of judicial time to call all the intervening handlers. In our experience much judicial time is spent unnecessarily, notably in subordinate Courts, in ensuring no break 1110 in the chain of evidence. In our judgment, if the officer who picked up an object at the scene produced it and identified it as that very S/N 0n2w9cLg50mtcEVcARzn6Q object, that is enough, and there is no need to call every other officer who handled it. For this reason, it is desirable for a police officer who picked up an 1115 object that is easily marked such as a gun, to mark it well, in case it may be needed later on as an exhibit. There are, however, objects such as blood samples and the like that cannot be easily marked; it is only in the case of such objects that it may be necessary to call everybody who has handled it-then only if there is doubt as to 1120 identity." [58] Regarding exhibit P36 i.e. a set of Nissan Almera car keys:

According to court records, this exhibit was not included in the appeal record because it was a physical item returned to the 1125 prosecution after the trial.

The prosecution provided no photographs of the keys.

SP2, the appellant's ex-wife and the registered owner of the Nissan Almera, was never shown the keys for identification during testimony. 1130

It is argued that it was important for SP2 to identify and confirm the keys, as the dangerous drugs at the centre of the charge were found in the vehicle.

SP4 did identify the keys but admitted that no markings were made on them. 1135

The defence challenged this identification during the trial, arguing the description was too general to specifically link the keys to the Nissan Almera in this case. [59] We refer to “Borang Senarai Geledah” P35 where is it stated under 1140 items found/seized, “sebatang anak kunci bersama alat kawalan jauh S/N 0n2w9cLg50mtcEVcARzn6Q kereta dan sebatang anak mangga”. SP4 confirmed and identified the key found is the Almera key. We refer to the examination in chief of SP4 as follows: “TPR: YA, satu borang geledah ditunjukkan kepada SP4. 1145 SP4: Saya camkan, borang ini disediakan oleh saya ada tandatangan saya YA. TPR: Selain kamu siapa lagi tandatangan borang ini? SP4: B1 iaitu Aizuddin bin Azizan dan B2 Mohd Firdaus bin Ismail. TPR: YA, saya pohon untuk senarai geledah ditandakan sebagai 1150 P35. JRB: P35 YA. TPR: Kita tengok barang-barang yang dijumpai, bilangan 1 ini apa? SP4: 1 ketulan mampat disyaki dadah jenis ganja yang dibaluti dengan plastic lutsinar dan juga kertas berwarna biru dan juga 1155 sebatang anak kunci bersama alat kawalan jauh kereta dan satu anak kunci mangga. Lepas dijumpai tempat letak kaki penumpang kereta jenis Nissan Almera warna hitam nombor pendaftaran W3560M. TPR: Baik, kamu nyatakan beg warna putih skechers turut 1160 dirampas sebatang anak kunci bersama alat kawalan jauh kereta. SP4: Benar Yang Arif. TPR: Boleh camkan tak, anak kunci ini bersama alat kawalan jauh kereta dan sebatang anak kunci mangga ini? SP4: Boleh Yang Arif. Saya camkan kunci ini kunci jenis kereta 1165 Nissan Almera Yang Arif. TPR: Macam mana kamu boleh camkan, ini kunci yang berkaitan dengan kes ini? SP4: Pengecaman pada tanda tangan dan masa penyerahan dibuat tanda tangan di hadapan saya. (emphasis added) 1170 TPR: Kamu tak ada buat tanda tangan atas itu SP4: Tiada YA.” S/N 0n2w9cLg50mtcEVcARzn6Q [60] The learned HCJ stated in his judgement at para 60 finds as follows: “[60] Selanjutnya, OKT2 mendakwa yang beliau tiada kawalan 1175 terhadap kereta Nissan Almera ini kerana ia adalah kepunyaan SP2 dan terdapat kunci pendua bagi kereta tersebut. Beliau juga mendakwa kunci (P36) tidak sama dengan gambar (P26(d)) dan seterusnya bertegas yang pertuduhan terhadap beliau merupakan suatu penganiayaan 1180 dan perancangan jahat.” We find that SP4 was able to identify the key to the Almera, and to our mind, SP2 doesn't need to identify and confirm the keys to the Almera. There was no evidence or even suggestion that the said drugs 1185 found in the Almera car belonged to SP2. Moreover, the 2nd Appellant was found alone driving the Almera. There is thus no merit in the contention that SP2 should have identified and confirmed that the keys were the Almera keys, or that the investigation was incomplete, or that the police were acting maliciously against him. 1190 [61] In PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233, the Federal Court held: "We also find ourselves in agreement with the learned Deputy Public Prosecutor that the learned trial Judge had erred in law when he 1195 faulted PW13, the investigating officer, for not lifting the fingerprints off the wrappings of the cannabis and for not taking photographs of the street light in front of the house No. 129. Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In 1200 the present case under appeal, however, the charge alleged trafficking in the form of sale, and there is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the Loy tape, therefore, assumes little value or 1205 significance." (emphasis added) S/N 0n2w9cLg50mtcEVcARzn6Q [62] Applying the principle in PP v. Mansor Md Rashid & Anor (supra) and the facts of the case, in our view, the identity of the Appellant is undisputed and does not require proof. Therefore, confirmation by SP2 1210 regarding the keys is of little value. At best, it would only provide corroborative value. We find no merit in any of the issues above.

(E) CONCLUSIONS [63] Having considered all issues before this Court, we find no 1215 appealable error in the learned HCJ's decision. We see no reason to interfere with the findings made, and we affirm the findings of fact made by the learned HCJ leading to the conviction of the appellants on the charge. Accordingly, we are satisfied that the conviction is safe. In the circumstances, we unanimously affirmed the conviction and the sentence. 1220 The appeals are therefore dismissed, and the convictions and sentences by the learned HCJ are hereby affirmed. The cross-appeal by the learned DPP was also dismissed. 8 December 2025 1225 Hayatul Akmal Abdul Aziz Judge Court of Appeal Counsels: 1230 For the First Appellant: Ahmad Ishrakh Bin Saad Messrs Ishrakh Saad & Co. For the Second Appellant: Nik Mohamed Ikhwan Bin Nik Mahamud Messrs Nik Ikhwan & Co. For the respondent: How May Ling 1235 Deputy Public Prosecutor Attorney General’s Chamber S/N 0n2w9cLg50mtcEVcARzn6Q