Antonio Faiz Tho Zhi Guang v Pendakwa Raya (S-05(SH)-383-08/2024)

compressed cannabis plant material wrapped in foil and wrapped again in transparent plastic;

loose cannabis plant material inside a transparent plastic bag. 10 [9] According to PW1, further questioning of the accused revealed that there was more cannabis at his house in Taman Mahandoi. [10] Police officers and the appellant then went to the house in Taman Mahandoi, where they found the appellant’s father in the sitting room. The appellant led the police to his room on the first floor. There, he handed to 15 Inspector Abdul Rashidi a black backpack. More cannabis material was recovered from this backpack. [11] As explained, the drugs recovered from the black plastic bag carried by the accused at the Bundusan Commercial Centre were the subject of the first charge, while the drugs recovered from the appellant’s father’s house in Taman 20 Mahandoi were the subject of the second charge. The two charges read as follows: S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 4 The First Charge That you, on the 29th day of September 2020, at about 8.40 p.m., located on the stairway near Lot 31.1, Block C, 1" Floor, Bundusan Commercial Centre, Jalan Bundusan, in the District of Penampang, in the State of Sabah, did on your own behalf traffic in a dangerous drug to wit 250.3 gram of Cannabis and that you have thereby 5 committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act, 1952 (Act 234) and punishable under Section 39B(2) of the same Act. The Second Charge That you, on the 29" day of September 2020, at about 9.40 p.m., located at house numbered Lot SD. 25, Taman Pertama Mahandoi, Phase 2, Jalan N.C. Mogunting, in 10 the District of Penampang, in the State of Sabah, did on your own behalf traffic in a dangerous drug to wit 550.3 gram of Cannabis and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act, 1952 (Act 234) and punishable under Section 39B(2) of the same Act. [12] On 3 October 2020, a cautioned statement under section 37B of the 15 Dangerous Drugs Act 1952 was recorded from the accused. This cautioned statement had been adduced by the defence through PW5, Inspector Sofia Ronald. The appellant sought to rely on this statement to support this testimony that, on 27 September 2020 (two days before his arrest) one Leslie Loh had left two plastic bags in his car: one black plastic bag and another transparent plastic 20 bag. The cautioned statement also recorded the appellant’s version of events that, at about 7pm on 29 September 2020, he received a call from Leslie to bring the black plastic bag to Leslie’s office in the Bundusan Commercial Centre. The appellant stated that Leslie had told him to keep the transparent plastic bag, which he placed in the black backpack that was subsequently recovered from 25 the appellant’s room in his father’s house. [13] At trial, both the appellant and his father (DW2) testified that the room occupied by the appellant in the Taman Mahandoi was never locked and was accessible by anyone, including the appellant’s friends who frequently visited. [14] The High Court found the appellant guilty of both charges, and sentenced 30 him to imprisonment for a term of 30 years for each charge, running S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 5 concurrently from the date of arrest. He was also sentenced to the minimum of 12 strokes of the rotan for each charge. THE GROUNDS OF APPEAL [15] Learned counsel for the appellant raised five principal grounds of appeal:

it was contended that the High Court had failed to properly evaluate 5 the facts of the case in regard to the first charge. This ground related substantially to the version of events put forth by the defence that the drugs had been left in the appellant’s car by Leslie Loh;

it was further contended that the trial judge had failed to properly consider the evidence that, in relation to the second charge, the 10 premises where the drugs were found were accessible to other persons (and accordingly the element of possession had not been proven);

it was contended that, in relation to the statement made by the appellant to PW1 that had led to the discovery of the drugs that were 15 the subject of the second charge:

the caution under section 37B(1)(b) of the Dangerous Drugs Act 1952 had not been administered to the appellant, and that accordingly the statement ought not have been admitted into evidence; and 20

(ii) the statement ought not have been admissible under section 27 of the Evidence Act 1950 because the law requires that the exact S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 6 words uttered by the appellant to be recorded and adduced at trial; and

finally, it was argued that the learned trail judge erred in characterising the appellant’s father (DW2) as an interested witness and in rejecting his testimony for this reason. 5 [16] The ground of appeal in subparagraph [15](d) relates to the testimony of DW2 to the effect that the room where the drugs that were the subject of the second charge had been found was accessible to other persons. This ground was thus related that set out in subparagraph [15](b). We will according address these two grounds together. 10 THE FIRST CHARGE AND THE ROLE OF LESLIE LOH [17] In relation to the first charge, learned counsel submitted that the learned trial judge failed to properly appreciate the evidence and had wrongly inferred knowledge on the part of the appellant. [18] In our judgment, the appeal in respect of the first charge ultimately turned 15 on the issue of mens rea for possession. The central question was whether the appellant knew that the black plastic bag he was carrying contained prohibited drugs. [19] Having carefully considered the evidence in this case, we are of the view that there was sufficient evidence to establish that the appellant knew that the 20 black plastic bag was contained prohibited drugs, and this was sufficient to establish the mens rea for possession. With the other elements of trafficking having been established, the trial judge was correct to have recorded a conviction in respect of the first charge. The existence of evidence showing the S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 7 involvement Leslie Loh does not exculpate the appellant. The issue before the court was not ownership of the drugs but whether the appellant himself possessed the requisite knowledge, custody and control over them. In other words, even if the drugs belonged to Leslie Loh, the accused would nonetheless be liable for trafficking, because he knew he was transporting prohibited drugs. 5 [20] In addressing the issue of mens rea for possession, the learned trial judge placed considerable emphasis on the fact that the appellant appeared surprised when approached by Inspector Abdul Rashidi (PW1, who was the leader of the raiding party) and the other members of the raiding party. The learned trial judge considered that reaction to be indicative of guilty knowledge. This was 10 what was stated by the trial judge: [47] With regards to the element of mental possession, it can be inferred from the conduct of the Accused. From the testimony of PW 1 and PW 2, the Accused looked surprised when PW 1 introduced himself as police and is fact from which knowledge of the drugs may be inferred under Section 8 of the Evidence Act 1950. 15 [21] With respect, we are unable to agree that such evidence, standing alone, was sufficient to establish the requisite mens rea. A surprised reaction upon being confronted by the police is capable of a variety of explanations and does not necessarily point to knowledge of the contents of the item being carried. Such conduct is qualitatively different from acts such as attempting to flee, 20 concealing an item, or discarding incriminating material upon the arrival of law enforcement officers. [22] However, that does not conclude the matter. The question remains whether there was other evidence from which knowledge could properly be inferred. 25 [23] In our view, there was. S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 8 [24] The knowledge of the appellant regarding the contents of the black plastic bag was established through the combined effect of the following two factors:

the evidence showed that when the appellant was asked by PW1 about drugs, he handed over the black plastic bag to PW1. This was recorded in the police report filed by PW1 on 30 September 2020, 5 which stated the following: Saya juga telah bertanyakan soalan berkaitan dadah kepada saspek, dengan disaksikan oleh kesemua anggota serbuan telah melihat perbuatan saspek menyerahkan dengan menggunakan tangan kanannya kepada saya iaitu satu

beg plastik berwarna hitam dan di hadapan saspek, saya membuat 10 pemeriksaan lanjut ke atas beg plastik tersebut didapati dalamnya terdapat: – (1) bungkusan kertas timah yang dibalut dengan plastik lutsinar mengandungi ketulan mampat tumbuhan kering disyaki dadah jenis ganja (kanabis)(A/B: 268 gram). – (1) paket plastik lutsinar mengandungi ketulan mampat tumbuhan kering 15 disyaki dadah jenis ganja (kanabis) (A/B: 4 gram). The response by the appellant in handing the bag over to PW1 when asked about drugs was telling, because it suggested that the appellant knew that the contents of the black plastic bag were drugs. If he did not, he would not have handed over the black bag to PW1 when asked 20 about drugs; and

second, the appellant admitted in his cautioned statement (which had been introduced into evidence by the defence) that he had looked into his vehicle and had seen a transparent plastic packet containing plant material before placing it together with the black plastic bag. The 25 significance of this admission cannot be understated. S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 9 The appellant’s version of events was that on 27 September 2020, he had met with one Leslie Loh, who had placed something in his car. Two days later, Leslie called the appellant, with instructions to retrieve the black plastic bag and to send this black bag to Leslie’s office, and for a second, transparent, bag to be kept by the appellant for the time 5 being. This was significant because any reasonable person who saw that one of the bags contained plant material (and thus potentially a prohibited drug), would have reason to believe that the other bag, even if opaque, would also contain prohibited substances. [25] In our judgment, the inference that may be drawn from these two items 10 of evidence was that the appellant knew that that the contents of the bags were prohibited drugs. The mens rea element of possession was thus established. [26] Learned counsel devoted considerable attention to the role allegedly played by Leslie Loh. It was submitted that the learned trial judge failed to adequately evaluate the defence evidence that Leslie Loh was the true owner of 15 the drugs and that the appellant was merely returning a black plastic bag which Leslie Loh had previously left in his vehicle. [27] We accept that this was not a defence raised for the first time during the defence stage. Evidence was elicited from PW5 that the appellant had, from an early stage of the investigation, identified Leslie Loh as the person from whom 20 the drugs originated. There was also evidence that Leslie Loh’s statement had been recorded during the course of the investigation. [28] Nevertheless, the existence of evidence implicating Leslie Loh does not necessarily exculpate the appellant. The issue before the court is not ownership of the drugs but whether the appellant himself possessed the requisite 25 S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 10 knowledge, custody and control over them. Put another way, even if the drugs belonged to Leslie Loh, the appellant would nonetheless be liable for trafficking if he transported the material in question knowing that they were prohibited drugs. [29] In this regard, the present appeal is materially distinguishable from the 5 case of Lim Kim Wei v PP [2019] 10 CLJ 297 where the Court of Appeal found that the trial court had failed to properly consider the defence evidence capable of negating knowledge on the part of the accused person. Here, even if one accepts that Leslie Loh was involved in the events leading to the appellant's arrest, there remained independent evidence from which the appellant's own knowledge 10 could properly be inferred. [30] As we have already noted, the appellant admitted that he had seen a transparent plastic packet containing plant material before transporting the items in question. Further, when questioned regarding drugs, he handed over the black plastic bag which was later found to contain cannabis. These 15 circumstances were capable of supporting an inference that the appellant knew the nature of the items he was carrying, regardless of whether the drugs originally belonged to Leslie Loh. [31] Consequently, even if Leslie Loh were the owner of the drugs, that fact would not afford the appellant a defence. A person who knowingly transports 20 dangerous drugs on behalf of another is no less liable for trafficking merely because ownership of the drugs resides elsewhere. S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 11 THE SECOND CHARGE [32] In our considered judgment, the remainder of the grounds of appeal related solely to the second charge, which concerns the cannabis recovered from the appellant’s room in his father’s house in Taman Mahandoi. [33] It will be recalled that according to Inspector Abdul Rashidi (PW1), the 5 appellant had informed him that drugs could also be found at his home. This was stated in answer to questions asked by PW1 when he was initially detained at the Bundusan Commercial Centre. The notes of evidence recorded the following testimony from PW1: Saya telah membuat soal-siasat ke atas Tertuduh di mana Tertuduh telah 10 memberitahu masih terdapat lagi dadah jenis Ganja di rumahnya. [34] The trial judge found this evidence admissible both under section 37B(1)(b) of the Dangerous Drugs Act 1952 and under section 27 of the Evidence Act 1950. [35] The arguments raised by counsel for the appellant may be summarised as 15 follows:

this statement purportedly made by the appellant to PW1 ought to have been excluded from evidence because the caution prescribed under section 37B(1)(b) of the Dangerous Drugs Act 1952 had not been administered to the appellant;

furthermore, the statement ought not have been admitted into evidence under section 27 of the Evidence Act 1950 because caselaw requires that the exact words uttered by the appellant to be recorded and adduced at trial; and S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 12

it was further contended that the trial judge had failed to properly consider the evidence that the room occupied by the appellant in his father’s house where the drugs were found was accessible by other persons (and accordingly the element of possession had not been proven); and 5

on a related point relating to the same finding of fact, it was argued that the learned trail judge erred in characterising the appellant’s father (DW2) as an interested witness and in rejecting his testimony for this reason. (It will be recalled that both the appellant and his father that the room was never locked and was accessible by anyone, 10 including the appellant’s friends who frequently visited.) [36] In our considered judgment, whatever infirmities in the administering of the section 37B(1)(b) caution by PW1 on the day of the arrest (on 29 September 2020) or in recording verbatim the answers from the appellant were overcome by the appellant’s own version of events contained in his written statement 15 made on 3 August 2020 (Exhibit D4), which the defence had adduced during the prosecution’s case. In gist, the appellant’s version was that the drugs belonged to Leslie Loh. Leslie had telephoned him at about 7pm on 29 September 2020 to retrieve two bags from the appellant’s car, which had been placed there by Leslie. According to him, Leslie’s instructions were for the black plastic bag to be 20 brought to Bundusan Commercial Centre, and the transparent plastic bag to be kept by the appellant. According to the appellant, he placed the transparent plastic bag into the black backpack, which was subsequently recovered from his room in the house in Taman Mahandoi. [37] In our view, the appellant must have seen that the transparent plastic bag 25 contained plant material. This established the necessary mens rea for S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 13 possession: the appellant knew that what was contained in the transparent plastic bag was prohibited drugs. (See also our analysis at paragraphs [24] and [25] ante, which applies with equal effect here.) The actus reus element of possession, in our view, was established by the evidence that it was the appellant who had placed the transparent plastic bag into the black backpack. 5 This was the nexus that linked the appellant to the drugs that was the subject matter of the second charge. The issues of access to the appellant’s room in the house and the admissibility of the answers given by the appellant to PW1 when he was initially detained did nothing, in our view, to avert the finger of guilt pointing at the appellant. 10 [38] Be that as it may, we consider in the following paragraphs the points of appeal raised by the appellant in respect of the second charge. Whether the section 37B(1)(b) caution had been administered [39] It was advanced on behalf of the appellant that the statement recorded from the accused under section 37B(1)(b) of the Dangerous Drugs Act 1952 15 ought not have been admitted into evidence, because the prosecution failed to establish proper compliance with that statutory provision. The appellant relied on authorities such as Ho Tze Kean v PP [2018] 3 CLJ 71 and PP v Tiong Wee Kiet [2018] 7 CLJ 716, which emphasise the importance of proper administration of the statutory caution before statements or conduct capable of amounting to 20 incriminating admissions are received in evidence. We respectfully agree with the principles established by those cases. [40] Learned counsel argued that, in the present case, the caution required under section 37B(1)(b) of the Dangerous Drugs Act 1952 had not been S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 14 administered to the appellant before his statement was recorded. Reliance was placed on the appellant’s oral testimony to this effect. [41] Inspector Abdul Rashidi (PW1) testified that the caution had in fact been administered. The appellant disputed this assertion. The issue therefore became one of credibility and factual evaluation. 5 [42] More importantly, the trial judge accepted the evidence of PW1 that the statutory caution had in fact been administered. The appellant disputed this. That dispute was essentially one of credibility. Having reviewed the record, we are unable to conclude that the learned trial judge's preference for the evidence of PW1 was plainly wrong or against the weight of the evidence. 10 [43] The learned trial judge had the advantage of seeing and hearing the witnesses testify and was entitled to accept the evidence of the prosecution witness in preference to that of the appellant. [44] In the absence of any demonstrated misdirection or plainly erroneous assessment of the evidence, there is no basis for appellate intervention. 15 Whether section 27 of the Evidence Act 1950 applies [45] Learned counsel further submitted that the exact words allegedly uttered by the appellant should have been recorded before any statement leading to discovery could be admitted pursuant to section 27 of the Evidence Act 1950. Reliance was placed on Ishtiaq Ahmad Khan v Public Prosecutor [2020] 6 CLJ 187. 20 [46] We do not consider it necessary to determine the admissibility of the impugned evidence solely through the prism of section 27. Even if the appellant's contention regarding section 27 were accepted, the fact remains that S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 15 the drugs were discovered as a consequence of information supplied by the appellant and his subsequent conduct in leading the police to the location where the drugs were recovered. [47] Such evidence was independently relevant and admissible under section 8 of the Evidence Act 1950 as conduct of the appellant before and after his 5 arrest. Accordingly, no miscarriage of justice arose from the admission or consideration of such evidence. The Evidence of DW2 [48] The remaining grounds of appeal centred on the evidence of DW2, the appellant's father, who testified that the room occupied by the appellant was 10 accessible to other persons. [49] Learned counsel correctly submitted that evidence ought not to be rejected merely because a witness is related to an accused person. The decision in Teoh Kiang Hong v Theow Say Kow [2025] 2 CLJ 683 illustrates that familial relationship alone does not render evidence unreliable. 15 [50] However, that is not what occurred in the present case. [51] The learned trial judge did not reject DW2's testimony outright. Rather, the learned trial judge observed that the evidence ought to be approached with caution given the relationship between DW2 and the appellant. [52] We find no error in that approach. 20 [53] More importantly, even if the room was accessible to others, that fact does not negate the prosecution's case. S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 16 [54] The evidence established that the appellant possessed knowledge of the presence of the drugs in the room. This was established by his own evidence to the effect that he had placed the contents of the transparent plastic bag into the black backpack that was subsequently recovered from his room, and that the fact that the appellant, by his conduct, had led the police to the drugs. 5 [55] In these circumstances, the possibility that others may have had access to the room did not raise a reasonable doubt. Conclusion [56] For the foregoing reasons, we found no merit in any of the grounds advanced by the appellant. 10 [57] We were satisfied that the prosecution had established beyond reasonable doubt that the appellant had possession, knowledge and custody of the drugs forming the subject matter of both charges, and that the statutory presumption of trafficking had not been rebutted. [58] The appeal was therefore dismissed. The convictions and sentences 15 imposed by the High Court were affirmed. [59] We observe for completeness that the notice of appeal raised appeals against both the conviction recorded and sentence imposed. However, neither the written submissions nor oral arguments raised any contended errors of the High Court in respect of sentencing. Accordingly we considered that the appeal 20 against the sentencing was no longer being pursued. 29 July 2026 S/N VwnxuKu79keZeEkYIckiEA Antonio Faiz Tho Zhi Guang v PP 17 Azizul A Adnan Judge of the Court of Appeal 5 Malaysia For the appellant: Mr Nr Dominic Chew—Messrs JP Perira & Dasan For the respondent: Ms Atiqah Abdul Karim—Deputy Public Prosecutor 10