Asriyadi Bin Bakri v Pendakwa Raya (S-05(SH)-464-10/2024)

The appellant was charged with trafficking 64.83 grams of methamphetamine which is an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952. The charge read as follows: “Bahawa kamu, pada 30 haribulan Mac 2022, jam lebih kurang 10.30 malam bertempat di tepi jalan Kawasan Taman Merpati Apartment, Lorong Merpati 1, Kawasan Bundusan, di dalam daerah Penampang, di dalam Negeri Sabah, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 64.83 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta Yang sama.”

At the end of the case for the defence, the appellant was convicted of the said offence and sentenced to life imprisonment which is 30 years imprisonment and also ordered to be whipped 12 times.

We shall first set out the evidence of the crucial prosecution witnesses that was summarized by the learned trial judge.

The appellant was arrested pursuant to a raid by a police team consisting of six personnel that was led by Insp. Raimon Bin Bakar (PW 1). He had assembled a team of six police officers, including himself, to conduct a drug raid on 30 March 2022 after he received a tip-off. His team arrived at the roadside near Taman Merpati Apartments at approximately 10.00 p.m.

Upon arrival, the police team kept surveillance for about 30 minutes when PW1 noticed the accused walking alone in their direction. The accused was seen holding a plastic bag in his right hand and walking in their direction. PW1 and three members of his team emerged from their hiding place, about ten metres away, and approached the accused. PW1 identified himself as a police officer and showed his authority card. The accused fled and while doing so, threw the plastic bag onto the road.

The police team managed to apprehend the accused although he acted aggressively by putting up a struggle. PW1 recovered the plastic bag. It was a patterned plastic packet bearing the words “Tempura Seaweed.” Inside the plastic bag was a red plastic package containing two transparent plastic packets, both of which contained crystalline substances suspected to be methamphetamine. PW1 seized these items and transported them, together with the accused, to the Penampang District Police Headquarters, where the accused was informed of the reason for his arrest.

PW1 marked and dated each of the seized items, weighed the two transparent plastic packets, and confirmed that the gross weight was 101.59 grams. He also sketched a location plan of the crime scene indicating where the arrest took place and lodged a police 4 report regarding the arrest and the seizure. He also prepared a search list. At approximately 2.30 a.m. the following day, i.e. on 31 March 2022, PW1 handed over the seized items and the accused to the Investigating Officer, Inspector Sofia Ronald (PW3). Both officers signed the handover list (P9).

PW 3 testified that she marked the transparent plastic bags suspected to contain methamphetamine and secured them in a locked metal safe in her office, to which only she had the key, until they were sent to the Chemistry Department in Kota Kinabalu for analysis on 1 April 2022. The exhibits were received by Mohd Fazir bin Tunggal (PW2) who is a Science Officer. He confirmed in court that after analysis, he issued a Chemist Report stating that the substance in the said two plastics bags was methamphetamine with a combined net weight of 64.83 grams.

After citing the relevant authorities of PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 and Balachandran v. PP [2005] 1 CLJ 85, the learned High Court Judge subjected the evidence of the prosecution to the maximum evaluation test. In this case the prosecution elected to prove actual possession. The learned High Court Judge found that the prosecution had proved the element of possession. The appellant was seen carrying the plastic bag in question that was later confirmed to contain drugs. This proved the fact of physical custody. When PW1 identified himself as a police officer, the appellant threw down the plastic bag and attempted to flee. From the conduct of the appellant, 5 the learned High Court Judge drew the inference that he had knowledge of the contents of the plastic bag. He found no break in the chain of evidence from point of recovery to the point of analysis by the Science Officer.

With respect to the contents of the plastic bag, the learned High Court Judge accepted the evidence of the P.W. 2 who analysed the crystalline substance found in the two smaller transparent plastic bags. His Lordship noted that the expertise of P.W.2 and his findings were not successfully challenged. Thus, His Lordship found that the prosecution had proved that the crystalline substance found in the plastic bag carried by the appellant contained methamphetamine with a weight of 64.83 grams. Methamphetamine is a dangerous drug listed in the Dangerous Drugs Act 1952. As for the element of trafficking, the High Court found that the prosecution was entitled to invoke the presumption afforded under section 37(d) of the Dangerous Drugs Act 1952.

For the above reasons, he found that the prosecution had successfully established a prima facie case.

After defence was called, the appellant elected to give evidence on oath. He denied that the plastic bag belonged to him or that he had thrown it to the ground when approached by the police team. His version was as follows.

The appellant said that on 30 March 2022, he was driven by one Irhamsyah bin Husain (DW2) to Taman Merpati Apartments to search for a rental unit. He was dropped off at approximately 10 p.m., with plans to be collected half an hour later. However, he was suddenly arrested by PW1 and three other police officers outside the Taman Merpati Apartments. He was instructed by the police to retrieve the plastic bag in question from a slope near the roadside. He refused to comply, was then handcuffed, and taken to Penampang District Police Headquarters. The appellant denied ownership of the plastic bag or throwing it at the scene of his arrest. The appellant also called his friend (DW2) to testify for him. DW2 said that when he dropped off the appellant at the scene of arrest earlier, he did not see him carrying any plastic bag.

The learned High Court Judge considered all the issues raised by the defence. His Lordship found no merit in them. With respect to the crucial defence that the appellant was not in possession of the plastic bag at the material time, His Lordship held that it was an afterthought. This defence had not been raised during the testimony of the head of the raiding team (PW1) or the investigating officer (PW3), thereby depriving them of the opportunity to respond to it. His Lordship further found that PW1 had no discernible motive to implicate the appellant falsely, there being no evidence to suggest any prior acquaintance between them.

The learned High Court Judge found that the appellant failed to raise a reasonable doubt on the case of the prosecution. Accordingly, the appellant was convicted of the charge and sentenced to life imprisonment and 12 strokes of the whip.

Counsel for argument raised two main grounds of appeal before us during oral arguments. The first is that the High Court did not give fair treatment to the defence that his client was not carrying the plastic bag in question at the time of arrest as the defence was branded as an afterthought. The second main ground of appeal is that the investigation into the offence was not complete for various reasons. One of the reasons pertains to the handphone of the appellant that was seized. The investigating officer did not tender any evidence whether the appellant had communicated with anyone to sell drugs. We shall consider these two grounds and other grounds of appeal stated in the memorandum of appeal and the written submission below.

We find no merit in the argument that the learned High Court Judge did not give proper treatment to the defence of the appellant that he was not carrying the plastic bag in question at the material time but was ordered to pick it up from the ground.

Counsel for the appellant cited case of Alcontara a/l Ambross Anthony v PP [1996] 1 CLJ 705 where the Federal Court said that a defence considered suspicious and weak must be considered. The relevant passage cited is as follows: In this, he was clearly wrong, since it is settled law, that although a Court may view with suspicion a defence which has not been put to the appropriate prosecution witnesses who might have personal knowledge of the points at issue, the Court is still bound to consider the defence, however weak, and to acquit if not satisfied that the prosecution has discharged the burden of proof which rests upon it.

The criticism of the judgment of the High Court is directed at the following passages where the said defence was branded as an “afterthought” and was followed up by a discussion of relevant authorities:

Significantly, the accused's defence - that he was instructed to pick up P4 which was already on the road - was not put to PW1 or PW3. The defence was only raised after PW1 and PW3 had completed their testimony and were released as witnesses, when they could no longer rebut such an allegation.

The defence is to be considered an afterthought in the light of what Abdull Hamid Ebong JCA (as he then was) had to say in Megat Halim Megat Omar v. PP [2009] 1 CLJ 154; [2008] MLJU 647. (emphasis ours) [20] The appellant said that he did not carry the plastic bag in question but was ordered by the police to pick it up from the ground by the police. Although, this defence was deemed an afterthought, a holistic reading of the judgment shows that the learned High Court Judge carefully considered the evidence to determine whether the allegation was true. In other words, the defence despite its characterisation as an afterthought was given due consideration. However, it was dismissed because the weight of evidence was overwhelmingly against it. The relevant passages are as follows:

Further, PW1's testimony that the accused was seen carrying P4 and throwing it on the road was not challenged….

DW2's testimony placed the accused at the crime scene on the day and place, as testified by PW1 and as acknowledged by the accused himself. While the accused suggested that he was not seen carrying P4 when DW2 drove him and dropped him off, DW2's testimony was equivocal. He vacillated between giving evidence vide his witness statement that "Bila saya turunkan Asriyadi bin Bakri di Kawasan Taman Merpati Apartment, Bundusan, Penampang, saya tidak nampak bahawa Asriyadi bin Bakri ada mempunyai dan membawa satu (1) paket Plastik Bercorak Bertulis Tempura Seaweed," and unconvincing answers when under cross examination: "Tidak tahu apa-apa, dia tiada bawa turun plastic," "Kamu tanya pasal itu plastic kan, saya tidak tahu apa-apa pasal plastic," "Saya tidak tahu pasal plastic," and so on.

While the accused alluded to a frame-up by the police, there was no evidence that PW1 and PW3 knew the accused before the accused was arrested on 30 March 2022. There was no discernible motive or reason to frame the accused. [21] In the passages referred to above, the learned High Court Judge carefully considered whether the appellant was carrying the plastic bag in question. His Lordship accepted the evidence of PW1, who testified that the appellant was seen carrying the plastic bag at the scene of arrest, and further observed that PW1’s testimony was not successfully challenged during cross-examination. The appellant, in support of his defence, called DW2. The learned High Court Judge examined DW2’s evidence and found that he did not state unequivocally during cross-examination that the appellant was not carrying a plastic bag when alighting from his vehicle. In His Lordship’s view, DW2’s testimony was equivocal. The learned Judge was also mindful that acceptance of the appellant’s version would imply that the police had fabricated a case against him. However, His Lordship could discern no basis for reaching such a conclusion. The appellant had no prior history with PW1, and there was no supporting evidence to substantiate the defence that he had been framed. [22] For the above reasons, we are of the view that although the defence of the appellant that he was not carrying the plastic bag in question and was ordered to pick it up from the road was characterised as an “afterthought”, the learned High Court Judge did in fact assess its merits by evaluating the entirety of the evidence including the sworn testimony of the appellant and his witness, DW1. [23] In respect of the case of Alcontara a/l Ambross Anthony v PP (supra), we find that the facts are readily distinguishable. In that case, the essential defence of the appellant was that he was an innocent carrier because he was told by one Che Mat to carry prawn crackers. The appellant gave Che Mat’s name and phone number in his cautioned statement that was taken five hours after his arrest. He also offered the police to bring them to Che Mat’s residence. The trial judge criticised the defence for not having put the name of Che Mat, his phone number and place of abode to the investigating officer during cross-examination. However, the Federal Court found that the appellant had disclosed it at the earliest opportunity in the cautioned statement. Thus, the onus was on the prosecution to disprove the appellant’s version. [24] In the instant case, there is no evidence as to what the appellant disclosed in his cautioned statement as it was not tendered in the first place. Counsel for the appellant submitted that the cautioned statement was not supplied. However, the notes of proceedings contain no record of any application having been pursued by the appellant in relation to the non-supply of the cautioned statement under section 51A of the Criminal Procedure Code. Nonetheless, more importantly, unlike in the aforementioned case of Alcontara a/l Ambross Anthony v PP (supra) where the trial court did not address the merits of the defence, the High Court in the present matter as we said earlier, did consider the totality of the evidence and concluded that the appellant was in possession of the plastic bag at the material time. [25] In the premises, the ground of appeal that the appellant’s defence was summarily dismissed as an afterthought, without due evaluation, is devoid of merit. Seizure of handphone of appellant [26] The appellant’s handphone was seized but not recorded in the search list. The raiding officer (PW1) admitted seizing it, though he stated that it was subsequently handed over to the investigating officer (PW3). Before the High Court, and again before us, counsel for the appellant contended that production of the handphone would have exonerated the appellant, as it would have revealed the absence of text messages evidencing drug transactions. Counsel therefore urged us to draw an adverse inference against the prosecution on the basis that potentially favourable evidence had been withheld. [27] We are of the view that there is no material to draw an adverse inference against the prosecution in view of the non-production of the handphone of the appellant. Our reason is the same as that of the learned High Court Judge. Even if we assume that the handphone did not contain any incriminating messages detailing drug trafficking transactions, it does not mean that the appellant is innocent as negotiations could have been conducted by other means such as audio calls. Furthermore, the prosecution’s case rested on the fact of possession and presumption of trafficking. It was not based on a record of drug transactions. The High Court correctly dealt with this issue in the following passages:

In any case, assuming that there is no evidence of drug trafficking in the accused's handphone, that does not negate PW1's direct eyewitness testimony that the accused was holding P4 in his right hand, he threw it on the road when PW1 identified himself as a police officer, and that the accused tried to flee the scene. While learned counsel for the accused submitted that the accused's handphone was never used to traffick drugs, that was not part of the prosecution's case. Indeed, the prosecution accepts that there is no evidence of buying and selling in the accused's handphone.

A negative on its own such as the absence of a ledger book, or a diary or for that matter, the absence of incriminating text messages in a handphone does not contradict direct eyewitness evidence. [28] For reasons given above, we find that no adverse inference in favour of the appellant can be validly drawn on account of the non-production of the handphone. Fingerprint and photographic evidence [29] Counsel for the appellant further submitted that no evidence was adduced of any attempt to conduct fingerprint dusting on the plastic bag. It was argued that such evidence would have revealed whether the appellant had handled the bag, particularly as PW1 stated that the appellant was not wearing gloves. In the same vein, counsel for the appellant also argued that the prosecution did not tender photographs of the plastic bag lying on the ground after the appellant had thrown it. On this basis, counsel once again urged the Court to draw an adverse inference against the prosecution. [30] We find no merit in this argument for the following reason. Counsel for the appellant in fact cross-examined PW3, the investigating officer, as to whether fingerprint dusting had been carried out on the plastic bag in question. She confirmed that fingerprint dusting was undertaken but that the attempt to lift fingerprints was unsuccessful. Her evidence was as follows: : Apa keputusan finger dusting yang kamu buat? : Laporan adalah negative. : Saya katakan kepada kamu bahawa sekiranya barang kes di pegang oleh suspek, tentu finger prints ada terdapat dalam paket plastik atau barang kes lain? : Tidak semestinya. : Dalam siasatan kamu, adakah saspek memakai glove/sarung tangan semasa ditangkap? : Tidak ada. : Jadi setujukah kamu bahawa sekiranya saspek tidak ada memakai glove ataupun sarung tangan, tentunya cap jari saspek mesti boleh didapati dalam paket plastik yang kononnya dibuang mengikut atau arahan PW1 (Insp Raimon)? : Ya, saya setuju tetapi kita mesti tengok juga bagaimana permukaan barang kes tersebut semasa dusting. : Jadi, setuju kamu sekiranya saspek muatkan dadah dalam paket plastik, bukti melalui finger print tidak boleh didapati. Itu kau cakap? : Ya. [31] It is trite law that an adverse inference may only be drawn under section 114(g) of the Evidence Act 1950 where there is suppression of not just any evidence, but material evidence. Thus, the element of suppression and materiality with regard to the evidence in question must be demonstrated. The principle is best explained in the following passage from the judgment of Mohd Azmi SCJ in Munusamy Vengadasalam v PP [1987] CLJ (Rep) 221: It is essential to appreciate the scope of s. 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to 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. [32] In this case, counsel for the appellant himself in paragraph 31 of his written submission stated that adverse inference can be drawn in cases involving suppression of evidence. In the present case, the investigating officer testified that the attempt to lift fingerprints failed. Despite extensive cross-examination, she provided cogent reasons why fingerprint lifting is not always successful. There is no hint of suppression of evidence in any of the answers elicited from the witness. Therefore, no adverse inference can be properly be drawn from the failure to tender a report of an unsuccessful attempt. [33] In any event, as the learned High Court Judge observed after citing PP v Mansur Mohd Rashid & Anor [1996] 3 MLJ 560, fingerprint evidence is corroborative in nature and is important where identity is in doubt. It is of immense value where there is no direct evidence. In the above-mention Federal Court case, Chong Siew Fai CJ said as follows when commenting on the decision of the High Court who drew an adverse inference on the case for the prosecution for failure to lift fingerprints and take photographs at the scene: We also find ourselves in agreement with the learned deputy public prosecutor that the learned trial judge had erred in law when he 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 the present case under appeal, however, the charge alleged trafficking in the form of sale and there was evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumed little value or significance. [34] In this case, PW1 gave direct eye-witness testimony that the appellant was carrying the plastic bag in question, and his evidence was accepted by the learned High Court Judge. Accordingly, in the absence of proof that a positive fingerprint report was suppressed, no adverse inference may be validly drawn to cast doubt upon the eye-witness testimony of PW1. Similarly, in respect of the absence of photographs showing the plastic bags lying on the road, we see no misdirection on the part of the learned High Court Judge for failing to draw an adverse inference. PW1 clearly saw the appellant throwing the plastic bag on the ground before running away. Therefore, the police team cannot be faulted for prioritising the apprehension of the appellant and recovery of the plastic bag rather than being fixated on taking photographs. Other issues [35] Counsel for the appellant submitted that the evidence of the police is not credible and that a finding of fact by the trial court need not necessarily be upheld by the appellate court. In support, counsel cited the Federal Court case of Tan Kim Ho & anor v PP [2009] 3 CLJ

In that case, Zaki Tun Azmi CJ said as follows when dealing with grounds of appeal that dealt with pure findings of fact: It is an established principle of law that when dealing with finding of facts, the trial judge is more often than not, in a better position to decide. The appellate court must be reluctant to interfere with such findings, unless the facts obviously disclose the courts below had clearly and wrongly evaluated the facts. [36] We find no merit in the ground of appeal that the learned High Court Judge wrongly evaluated evidence. Whilst, we agree with the principle stated in the said authority that the appellate court can intervene if the trial court wrongly evaluates evidence, we are of the view that in the instant case, the learned High Court Judge had no reason to reject the evidence of PW1 who is a police officer. He was not discredited during cross-examination. He appeared to be a credible witness. There is no evidence of prior acquaintance with the appellant. He had no motive to fabricate evidence and frame an innocent man. As we said earlier, all these matters were properly taken into account by the learned High Court Judge. For this reason, we cannot conclude that despite having audio visual advantage, the learned High Court Judge erred in assessing credibility of PW1. Summary and Conclusion [37] In conclusion, we find no merit in all the grounds raised before us during oral arguments, in the memorandum of appeal and in the written submission. [38] To recapitulate, the High Court correctly found that a prima facie case had been established and accordingly called for the defence. The element of possession was satisfied by the fact that PW1 observed the appellant carrying the plastic bag which contained the drugs in question. There was no break in the chain of evidence with respect to the drugs. The expertise of the Science Officer, who verified both the nature of the drug and its weight, was not successfully impugned. The appellant discarded the bag and attempted to flee upon realising that he had encountered the police. An inference of knowledge of the drugs was therefore properly drawn. The presumption of trafficking was not rebutted on a balance of probabilities when the appellant gave evidence, and no reasonable doubt was raised in relation to the prosecution’s case. [39] For the above reasons, we find that the conviction is safe. In respect of sentence, we note that the High Court imposed the minimum penalty which is life imprisonment or 30 years’ incarceration together with 12 strokes of the whip. We therefore dismiss the appeal against conviction and sentence. The decision of the High Court is accordingly affirmed. Dated: 17th September 2025 SGD (RAVINTHRAN PARAMAGURU) JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA Parties Appearing: For the Appellant : Hamid bin Ismail [Messrs Hamid & Co.] For the Respondent : Mohd Fuad bin Abdul Aziz