Boo Cherk Siang (JB-45A-14-10/2021)

The accused was charged with trafficking 166.2 grams of Methamphetamine.

The charge against the accused read as follows: - “Bahawa kamu pada 21 Februari 2021 jam lebih kurang 9.10 malam, bertempat di Sekatan Jalan Raya, di Plaza Tol Pagoh, di dalam Daerah Muar, di dalam Negeri Johor Darul Ta’zim, telah didapati memperedarkan dadah berbahaya iaitu 166.2 grams Methamphetamine. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah Seksyen 398(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 398(2) Akta yang sama.”

The prosecution called the following 9 witnesses: -

PW1 - Drug Chemist.

(ii) PW2 - DNA Chemist.

(iii) PW3 - Store keeper.

(iv) PW4 - Complainant/Arresting Officer.

PW5 - Forensic Case Exhibits Collector.

(vi) PW6 - Forensic Investigating Officer.

(vii) PW7 - Photographer.

(viii) PW8 - JPJ Officer.

(ix) PW9 - Investigating Officer.

PW10 - Motorcar owner.

The Learned Deputy Public Prosecutor instead of summarising the prosecution’s narrative concerning the events on the date of the incident, just reproduced the contents of the complainant’s (PW4) witness statement.

Hence, this Court is now tasked to summarise the Prosecution’s narrative and I shall do so.

On 21.2.2021, the Movement Control Order was in force in the nation due to the COVID-19 pandemic.

On the said day, PW4 was heading team B for the SJR OPS COVID-19 (MCO) IPD Muar, Johor together with KPL 173426 Mohamad Amirul Bin Ahmad and KPL/S 15377 Mohamad Noor Fitri Bin Kasiran stationed at Zon B Sekatan Jalan Raya Plaza Tol Pagoh, Johor.

After a meeting and briefing with the head of SJR, PW4 ordered his team to take their places for observation and inspection of the vehicles entering Plaza Tol Pagoh.

Inspection was carried out to ensure all vehicles entering the toll plaza had the permit to cross districts and states as required during the Movement Control Order.

At around 2110 hours, PW4’s team stopped a Mocca Silver Myvi bearing registration number JJW 34 (“motorcar”). The driver was asked to produce the permit to cross the border as required under the Movement Control Order, but he failed to do so.

PW4 then introduced himself to the driver of the motorcar, who looked afraid. PW4 then asked the driver to stop the motorcar, detained him and asked for his particulars.

After taking down his particulars, PW4 asked the driver why he was entering Plaza Tol Pagoh, but the driver failed to answer.

PW4 then asked the driver to stop the engine and get down from the motorcar. This driver was identified by PW4 later as the accused. When PW4 asked the accused to produce proof of ownership of the motorcar, the accused told him that he had borrowed the motorcar from a friend. PW4 then told him that he needs to inspect inside the motorcar and the accused looked worried and afraid as though he was concealing something.

Thereafter, PW4 made a search through “system kompol” with the operation centre at IPD Muar before inspecting inside the motorcar. PW4 found the accused had 4 previous records related to drug offences.

A search on the accused’s body found nothing. This was followed by an inspection carried out inside the motorcar which was witnessed by the accused. PW4 found a pair of brown shoes, brand North Star with serial number 8592974110417 on the footrest of the back passenger’s seat.

Upon inspecting inside the shoes, PW4 found a transparent plastic packet suspected to contain drugs type of syabu weighing approximately 232.00 grams.

After that, PW4 arrested the accused, seized the drug case exhibits and the motorcar. PW4 also issued a compound to the accused for breaching the regulations during the Movement Control Order for not having a permit to cross the border.

Next, PW4 brought the accused and the case exhibits to Bahagian Siasatan Jenayah Narkotik IPD Muar, Johor for further investigations. During the journey to IPD Muar, the accused and the drug case exhibits were under PW4’s custody.

On the way to IPD Muar, PW4 stopped at the Pagoh Police Station to lodge a police report.

Upon reaching IPD Muar at around 0130 hours, PW4 weighed the drugs and made markings on the drug case exhibits witnessed by the accused.

Thereafter, PW4 prepared a search list, got it acknowledged by the accused and gave the accused a copy. He then notified the Investigating Officer (PW9) of his arrest and seizure.

Next, PW4 prepared the acknowledgement form to hand over the case exhibits to the Investigating Officer (PW9).

PW4 briefed the Investigating Officer on the arrest and seizure. He also handed the accused and the case exhibits to the Investigating Officer (PW9) for further action.

The case exhibits were sent to the Chemist (PW1) for analysis.

PW1, the Chemist confirmed that the clear crystal substance inside the plastic packet marked as K3 contains 166.2 grams of Methamphetamine listed in the First Schedule of the Dangerous Drugs Act, 1952.

To make its case against the accused, the Prosecution had to establish: -

The identity and weight of the drugs, viz, 166.2 grams of

(ii) The accused had possession of the drugs; and

(iii) The accused was trafficking the drugs on the date and at the time and place as particularised in the charge. Identity and weight of drugs

Upon completion of her analysis, PW1 then prepared a chemist report on her findings dated 23.03.2021 (P6), which was later handed to the Investigating Officer (PW9) together with the case exhibits on 21.04.2021.

Learned counsel for the accused did not challenge PW1 on her qualifications or experience. PW1’s evidence in her witness statement (PWS-1) as to her qualifications and experience was therefore left unchallenged. As such, it is my finding that PW1 is qualified to testify as an expert witness under Section 45 of the Evidence Act, of 1950.

The identity and type of the drugs analysed by PW1 were also not challenged by learned counsel for the accused in his submissions.

Neither was there any challenge to the weight of the drugs.

The chemist's report reveals that upon analysis, PW1 found the plastic packet marked as “K3” to contain clear crystal substances weighing 166.2 grams of Methamphetamine, which is a dangerous drug listed in the First Schedule of the Dangerous Drugs Act of 1952.

In the circumstances, the prosecution has established the first ingredient of the offence.

To prove possession, the prosecution had to prove that the accused had knowledge of the drugs and that he had some form of control or custody of the drugs. In PP v. Muhamad Nasir bin Shaharudin [1992] 4 CLJ 2028; [1994] 2 MLJ 576, it was held: - “To prove either of these two requirements, the prosecution may either adduce direct evidence or it may rely on the relevant presumptions under s. 37 of the DDA.”

The meaning of custody and control has been explained by Raus Sharif CJ in Ghasem Hozouri Hassan v. PP [2018] 6 CLJ 133, thus: - “......when we talk about the issue of custody and control, what is crucial is that the accused must be so situated that he can deal with the proscribed drugs as if it belonged to him, and it must be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so (he had animus possidendi).”

As for knowledge of the drugs, it was held in Chan Pean Leon v. PP [1956] 1 LNS 17: - “Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again, the possible variety of circumstances which will support such an inference is infinite. [emphasis added]”

Finally, in Anagwaonye Chukwudi Nathaniel v P.P [2020] 1 LNS 1277, it was held by the Court of Appeal: - “[8] In relation to the issue of possession, it is trite that the prosecution may establish actual possession without relying on presumed possession under section 37(d) and rely on the weight of the drugs to trigger the presumption of trafficking under section 37(da) to prove the charge under section 39B or to rely on the presumed presumption under section 37(d) and adduced affirmative evidence to prove trafficking with the aid of the definition of trafficking under section 2 of DDA

[9] This matter has been lucidly explained by the Federal Court in the case of Public Prosecutor v. Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193 at page 203, in the following words: ‘[17] It ought to be stated at the outset that the decision in Muhammad bin Hassan only prohibits the use of double presumptions under ss. 37(d) and 37(da) of the Act. It is therefore, open to the prosecution to rely on either of the presumptions. In other words, the prosecution may positively prove possession without relying on the presumption under s. 37(d) of the Act and go on to rely on the presumption of trafficking under 37(da) of the Act to support a charge under s. 39B of the Act. See Tunde Apatira & ors v. Public Prosecutor; Msimanga Lesaly v. Public Prosecutor [2005] 4 MLJ 314, a decision of Court of Appeal which was confirmed by this Court in Federal Court Criminal Appeal No 05 – 27 of 2004(K). Conversely, the prosecution may rely on the presumption under s. 37(d) to prove possession and seek to prove by affirmative evidence (independent of the presumption under section 37(da)) that the accused was in fact trafficking in the dangerous drugs.’ (emphasis added).”

To establish custody and control of the drugs, the Prosecution relies on the direct evidence of PW4, who testified that the accused was found driving the motorcar alone, with the drugs tucked inside the shoe located on the footrest of the back passenger seat. According to the Prosecution, only the accused was driving the motorcar alone.

The Prosecution further submits that the drugs were found inside the shoe belonging to the accused and the accused could easily see the shoe on the footrest at the back passenger seat.

According to the Prosecution, the shoe fits the accused.

They further submit that it is impossible for the accused not to know the existence of the shoe which had the drugs tucked inside because it was not concealed and could be seen from the driver’s seat by the accused.

In these circumstances, according to the Prosecution, it can therefore be concluded that the accused had custody and control of the drugs.

As for knowledge, the Prosecution submits that the conduct of the accused looking worried and afraid when passing through the roadblock and his hand trembling when handing his identity card to PW4, indicates that the accused was concealing something. According to the Prosecution, PW4 gave detailed evidence as to the conduct of the accused when he stopped him for inspection.

The Prosecution therefore submits that the conduct of the accused looking worried and afraid when passing through the roadblock and his hand trembling when handing his identity card to PW4, is relevant and admissible under Section 8 of the Evidence Act, 1950.

Hence, according to the Prosecution, an inference can be drawn from the conduct of the accused that he knew the presence of drugs tucked inside the shoe which was found on the footrest at the back passenger seat of the motorcar.

45.

The defence submitted that based on the existence of 2 fingerprints, CJ1 and CJ2 (P41A & P41B) on the android screen of the motorcar and there being no confirmation that it belongs to the accused, therefore a third party could have accessed the motorcar.

Furthermore, police investigations also failed to compare these fingerprints (CJ1 & CJ2) with the accused’s fingerprint or with the car owner's (PW10’s) fingerprints.

The defence also further submitted that these 2 fingerprints (CJ1 & CJ2) could belong to two different persons and therefore more than one individual could have accessed the motorcar.

Next, the defence submits that the presence of a weak DNA profile and not conclusive as belonging to the accused found on the steering wheel and rain coat also indicates that it could belong to someone other than the accused. According to the defence, PW2 testified that it could have belonged to anybody.

The defence argued that the shoe in which the drugs were found (P46 A&B) does not fit the accused. According to the defence, the photographs showing the fitting of this shoe demonstrate that it is loose on the accused’s feet. This only confirms that the size is too large for the accused's feet and, therefore, this shoe does not belong to the accused but to someone else who previously had access to the motorcar.

Defence also submitted that surely if the accused had worn this shoe, his DNA could probably be found on the shoe. However, the Forensic Investigating Officer (PW6) took no DNA swabbing from the shoe.

According to the defence, it was important for the DNA swabbing on the shoes to be taken because the drugs were found inside the shoes. No Conduct on the Part of the Accused from Which an Inference of Knowledge of the Drugs Can Be Drawn

The defence submits that PW4's testimony on the conduct of the accused looking worried, afraid, unable to answer questions and looking as though he was concealing something is not true because PW4 did not mention these facts in his police report (P29). Further, PW4’s testimony that the accused’s hand trembled when he handed over the identity card was not stated in his witness statement (PWS4). According to the defence, this was something PW4 made up as an afterthought to strengthen his version of the incident.

Therefore, what was said by PW4 concerning the accused's conduct is not true and therefore, the question of the same being admissible under Section 8 of the Evidence Act, 1950 does not arise.

In any event, the defence submits that the accused did not attempt to run away or resist arrest. The accused had in fact cooperated with the police.

The defence also submits in the alternative that the accused could have looked worried when the police stopped him because he did not possess any valid permit to cross the border, which was required during the Movement Control Order. The defence emphasises that failure to possess a valid permit could lead to one being punished with imprisonment. According to the defence, PW4 said in his testimony that when he asked the accused for the permit to cross the border, the accused looked worried and afraid. PW4 also stated in his report (P29) that he issued the accused a compound for failing to possess a permit to cross the border.

The defence submitted that there are several inconsistencies in PW4’s evidence. Firstly, PW4 testified in his evidence in chief that after arresting the accused and seizing the case exhibits, PW4 headed to IPD Muar without stopping anywhere. PW4 also confirmed this fact during his cross-examination. Whereas PW4’s police report (P29) shows that he had brought the accused to Pagoh police station to lodge the report first. Thereafter, when PW4 was recalled, he testified that he had stopped at the Pagoh Police station first to lodge the police report (P29).

According to the defence, PW4’s failure to explain this inconsistency in his evidence is fatal to the Prosecution’s case.

The defence argues that it is fatal because the case exhibits were with PW4 and if PW4’s testimony is that from the beginning, he did not go anywhere except to IPD Muar and now he says he stopped at Pagoh police station, there is no explanation then from PW4 concerning who was having custody of the case exhibits when he stopped at the Pagoh police station. Therefore, from Plaza Tol Pagoh, where the case exhibits were seized until IPD Muar, the movement of the case exhibits seems not clear and there is a break in the chain of evidence.

The defence also highlighted the inconsistencies in PW4’s evidence concerning whether the motorcar was a manual or an automatic one and its colour.

PW4 testified that the motorcar that was seized was a manual one, but the “Maklumat Terperinci Kenderaan dan Insuran” (P44B) from JPJ show that it is an automatic. Whereas as to its colour, PW4 testified it is “Mocca Silver” but P44B shows it is brown.

Next, the defence also submitted that there were discrepancies in PW4’s evidence concerning the location of the shoes when it was seized. Initially, PW4 testified that it was on the footrest of the back passenger seat on the left-hand side. Thereafter, during re-examination, PW4 testified that it was concealed as shown in the marking made by him in the photograph of the back of the front passenger’s seat P26(15). This discrepancy is further compounded by PW4 stating in the search list (P30) that the drugs were found inside the right leg shoe, whereas the location of discovery of the drugs was inside a pair of shoes.

According to the defence, this discrepancy as to the location of the shoe was never explained by PW4 who had prepared the search list (P30).

Next, the defence also submitted that PW4 also wrongly identified a member of his team, Konstabel Noor Fitri, as bearing body number 25329. When PW4 was questioned, to whom this body number belongs, PW4 confidently answered that it belongs to Konstabel Noor Fitri. However, this body number belongs to Kamarul Yusri Bin Mohd Fadzir, who was identified by PW4 as bearing body number 215160.

According to the defence, the team members were not called to identify their respective body numbers that PW4 got mixed up.

Lastly, there is no mention by PW4 of the Tropicana Twister bottle found in the motorcar in his evidence or his report (P29). Neither was it mentioned in the search list (P30) and the acknowledgement for handing over of the case exhibits (P31) between PW4 and PW9.

This bottle was found by the Forensic Investigating Officer (PW6) inside the motorcar on the next day. Hence, there is no evidence of the whereabouts of this bottle from the time it was seized until the arrival of the forensic team on the next day to obtain the specimen for DNA and fingerprint analysis. The defence submits that the chain of evidence, therefore had broken.

P28 is the brown envelope in which the pair of shoes (P33) was kept.

According to the defence, there is no mention of this P28 in the “Buku Daftar Stor Barang Kes” (P25). Furthermore, there are also discrepancies as to whether the brown envelope was prepared by the storekeeper (PW3) or by the Investigating Officer (PW9) who later gave it to PW3 for the shoes to be placed inside and kept in the store.

The defence also submitted that there is a doubt as to who made the marking “K4” on the motorcar keys. Whether it was by PW4 or by PW9, because the evidence led by the Prosecution shows both of them made the markings but one of the markings has faded away. Discrepancy as to who arranged the case exhibits and the place where it was arranged when the photographs were taken.

The defence also submits that from the evidence of the Photographer (PW7) and the Investigating Officer (PW9), there is a discrepancy as to who arranged the case exhibits as shown in the photographs P35(1-6) and P39(1-2). Whether it was the Forensic Investigating Officer (PW6) or the Investigating Officer (PW9) for the case.

Next, the defence submits that there is a discrepancy as to the place where the case exhibits in the photographs P35(1-6) and P39(1-2) were arranged. Whether it was at the “Bilik Mesyuarat Narkotik, IPD Muar” or “Bilik Pegawai Penyiasat Cawangan Narkotik, IPD Muar, Johor”. According to the evidence of PW9, it was arranged at “Bilik Mesyuarat Narkotik IPD Muar”.

Lastly, the defence submitted that the Investigating Officer failed to carry out the following investigations: - a) Failed to hand over the shoes (P33) that were seized to PW6 to obtain a DNA sample. b) Failed to do the fitting of the shoes on PW10, the car owner. c) Did not take PW10’s blood specimen for DNA analysis. d) Did not take PW10’s fingerprint to compare with the fingerprints found on the android screen. e) Did not send the accused’s fingerprints for comparison with the said fingerprints found on the android screen. f) Failed to obtain a copy of the compound issued to the accused for not having a permit to cross border because it is relevant and consistent with the accused's conduct, looking worried.

In my view, the issues raised by the defence concerning incomplete investigation have already been raised by the defence in the other grounds and can be dealt with under those grounds.

In my judgement, the testimony of PW10, the owner of the motorcar, is crucial to the Prosecution’s case because she is the person who had loaned the motorcar to the accused and the last person to have inspected the motorcar to see if she had left anything belonging to her before handing it to the accused.

PW10 also further testified that she had not seen the raincoat (P24A & P24B) found by the Forensic Investigating Officer (PW6) in the booth of the motorcar.

I am mindful of the fact that although in her evidence in chief, PW10 said she was the one who gave the motorcar to the accused when the accused approached her and during cross-examination, she changed her answer and said it was her husband and not her who gave the motorcar to the accused, I believe PW10’s testimony that it was she who gave the motorcar to the accused.

This is because during PW10’s testimony in re-examination, she explained her contradicting answers as follows: - : Miss Kong, saya akan tanya soalan untuk you bagi explanation apa yang peguam tanya you tadi. Tadi peguam tanya dekat you, itu kereta husband yang kasi, husband yang serah. You faham ke apa maksud serah? You tahu ke apa maksud serah? : Itu kereta sebenarnya siapa yang bagi pada Ah Siang? Itu kunci, itu kereta siapa yang bagi pada Ah Siang? : Saya : Masa you bagi pada Ah Siang kereta itu, husband dekat mana tadi you beritahu? A : Dia tak ada dekat rumah. : Dekat mana? : Tak tahu.”

Furthermore, from the demeanour of PW10, I believe her to be a truthful witness and testifying as to what exactly transpired when the accused went to see her on 20.2.2021 at around 2 p.m. or 3 p.m. to borrow the motorcar.

On the issue concerning the presence of 2 fingerprints (CJ1 & CJ2) on the android screen of the motorcar and weak DNA profile on the steering wheel and rain coat indicating it could belong to a third party who had access to the motorcar, a short answer to this would be that PW10, testified that before lending her motorcar to the accused, she inspected her motorcar to see if she left anything inside. According to PW10, she did not leave anything inside the motorcar, let alone a pair of men’s shoes. The pair of men’s shoes found inside the motorcar surely cannot belong to PW10, who is a woman.

Next on the issue concerning the shoes not fitting on the accused's feet and being loose as seen in the photographs (P46 A&B), in my judgement this is something rather subjective. I have inspected the shoes and noted that no size is marked on them. From the photographs (P46 A&B) showing the accused wearing the shoes, it can be seen that the shoe laces are not tied. The fact that the shoe laces were untied could contribute to the shoe appearing larger and not fitting the accused’s feet. In my judgement, whether a person prefers to wear a shoe that is loose or tight-fitting is a matter of personal choice and is subjective.

Furthermore, I find no merit in this argument considering PW10 had already testified that she did not leave anything inside the motorcar before lending it to the accused and had never seen the men’s shoe (P33) found inside her motorcar. PW10 also further testified that no one else uses her motorcar.

83.

In Mahendran Arivalan v. PP [2020] CLJU 1278; [2020] 1 LNS 1278; [2020] MLRAU 279, Nordin Hassan JCA (as His Lordship then was) explained: - “...it is trite that forensic evidence including DNA or fingerprints only serves as corroborative evidence. It certainly assist(s) the prosecution to establish its case beyond reasonable doubt as required under the law. However, the absence of forensic evidence does not mean that the prosecution case must collapse if there are other cogent evidence to establish its case in particular direct evidence such as in the present case.”

Concerning the accused’s conduct, it’s my finding that PW4 provided detailed evidence showing the accused appeared worried and frightened, with his hand trembling as he handed over his identity card. In my judgement, the conduct of the accused is relevant and admissible under Section 8 of the Evidence Act 1950 because this conduct directly relates to the fact in issue, given that the drugs were found tucked inside the shoe, which was placed on the footrest beneath the front passenger seat. Furthermore, PW10 denied leaving any of her things inside her motorcar before lending it to the accused and had not seen the shoes. From this fact, an inference can be drawn that the accused had knowledge of the drugs.

Therefore, the accused must provide an explanation as required under Section 9 of the Evidence Act 1950. In Parlan Dadeh v. PP [2009] 1 CLJ 717, the Federal Court held: - “[38] In this case the reaction of the appellant in looking stunned or shocked upon being approached by the police is clearly admissible under s. 8 since it has a direct bearing on the fact in issue as the drugs found were tucked away in the front of the jeans worn by him. The explanation for his reaction must therefore be offered by he himself as required by s. 9. The court cannot, on its own, offer an explanation for his reaction.”

Next, I shall deal with the issue concerning several inconsistencies in PW4’s evidence.

Firstly, on the failure by PW4 to explain the inconsistency in PW4’s evidence that on the way to IPD Muar with the case exhibits and the accused, he testified that he did not stop anywhere but in the police report (P29) lodged by him, it shows that he had stopped at the Pagoh police station to lodge the police report (P29).

A short answer to this is that the Prosecution, before closing their case, had applied under Section 138 (4) Evidence Act 1950 to recall PW4 to further examine him on this inconsistent evidence. The defence objected to this application. Upon hearing oral argument, I ruled that the Prosecution should be allowed to recall PW4 by exercising my discretion under section 425 of the Criminal Procedure Code based on the Supreme Court’s decision in Phon Nam v. Public Prosecutor [1991] 1 CLJ Rep 381 wherein it was held: - “[1] The discretion under s. 425 of the CPC is to be exercised depending on the facts of each caseACT_1980_234, the main consideration being the essentiality of the additional evidence for the purpose of arriving at a just decision of the case, the real object of s. 425 being that failure to call for additional evidence would not result in an erroneous acquittal or conviction.”

My reason for arriving at this ruling was that the evidence of PW4 as to where he had lodged his police report (P29) is important for this Court to arrive at a fair decision for both parties to avoid an erroneous acquittal or conviction.

PW4 was then recalled and he had explained the inconsistency as follows: - : You faham tak soalan I, insp? : Ya, saya faham. Saya setelah buat menahan OKT, selepas buat pemeriksaan dengan kadar segera saya bawa tangkapan dan rampasan ke balai berdekatan iaitu Balai Polis Pagoh. Mahkamah: Slowly. Dengan kadar segera? SP4 : Dengan kadar segera membawa OKT dan rampasan balai polis berdekatan iaitu Balai Polis Pagoh sepertimana peruntukkan Seksyen 107 Kanun Tatacara Jenayah dan semua laporan saya buat dalam bentuk tulisan dan direkodkan di balai tersebut. Setelah selesai dokumentasi dalam bentuk tulisan, saya bawa OKT dan rampasan, serah kepada IO kes. Itu sahaja.”

Secondly, concerning PW4’s evidence that the motorcar was manual and its colour is Mocca Silver, being inconsistent with what is stated in the JPJ search that it is an automatic and brown colour, in my judgement, these are minor discrepancies. It does not weaken the Prosecution’s case. Most importantly, PW4 had identified the motorcar from the photographs tendered as P26(1-21) and also identified the motorcar (P42) itself which was produced for viewing in the Court compound.

Thirdly, concerning the discrepancies in PW4’s evidence on the location of the shoes when it was seized from the motorcar, in my view, these are only minor discrepancies. Most importantly, PW4 has identified in the photographs P26(15&17) by marking “X” as the spot where he found the shoes.

Fourthly, on the wrong identification of his team member's body number with the name of the officer, once again, it is a minor discrepancy. What is important is that PW4 identified Konstabel Mohamad Noor Fitri bin Kasiran and L/Kpl Kamarul Yusri bin Mohd Fadli, who were called by the Prosecution for identification in Court as being his team members involved during the incident.

Concerning PW4 did not mention the Tropicana Twister bottle found inside the motorcar in his evidence, in his police report (P29), and there is no evidence of the whereabouts of this bottle before it was seized by the Forensic Team the next day, in my judgement, it was not within the scope of PW4 as the Raiding Officer to seize this bottle for forensic investigation purposes. Furthermore, the photograph P26(10) shows that the bottle must have been inside the motorcar from the time the motorcar was seized by PW4 until the arrival of the forensic team, who investigated inside the motorcar and seized this bottle to obtain a specimen for DNA and fingerprint analysis. Therefore, I find there is no break in the chain of evidence.

Next, on the discrepancy as to who had prepared the brown envelope (P28) in which the shoes were kept, in my view, what is more important is the shoes and this was positively identified by PW3, PW4 and PW9. Hence, there is no break in the chain of evidence.

Similarly, although one of the markings “K4” on the motorcar keys had faded, both PW4 and PW9 identified positively that the motorcar key (P27A) seized by PW4, which was stated in the search list (P30) and handed over to PW9, evidenced by the “Akuan Terima Barang Kes” (P31). Again, I find there is no break in the chain of evidence.

The Prosecution’s version is that the accused was found driving the motorcar alone, the drugs were found tucked inside the shoe located on the footrest of the back passenger seat and the accused could easily see the presence of the shoe there.

99.

Hence, the accused submits that he has no knowledge of the drugs tucked inside the shoe and the drugs do not belong to him.

In the present case, the accused had borrowed the motorcar on 20.02.2021, a day before he was detained by the police on 21.02.2021. According to PW10, the owner of the motorcar who had loaned the motorcar to the accused, she did not leave anything inside the motorcar and had not seen the shoes. Neither had she seen the raincoat.

Furthermore, it is men’s shoes. Evidence reveals that from the time the accused took the motorcar from PW10 until he was stopped by the police, it was he alone who had custody and control of the motorcar. Hence, it can be safely concluded that the shoe belonged to the accused and the accused therefore, had custody and control of the drugs tucked inside the shoe.

From the conduct of the accused looking worried, afraid, unable to answer questions and looking as though he was concealing something, it can be inferred that the accused had knowledge of the drugs tucked inside the shoe.

Furthermore, the police found the accused to be driving the motorcar and entering the Plaza Tol Pagoh before he was stopped. The accused, therefore had the custody and control of the motorcar at the material time and the drugs were found tucked inside the shoe placed on the footrest of the back passenger seat of the motorcar. In the circumstances, the accused must have driven the motorcar with the conscious knowledge of the drugs inside the motorcar.

The facts in the present case are similar to the facts in PP v Abdul Rahman Akif (2007) 4 CLJ 337, where the Federal Court found as follows: - “[14] ………………. The incontrovertible facts as found by the trial court was that the packages were found in the car driven by the respondent. He was the only person in the car at the material time. One package was found under the driver’s seat and two packages under passenger’s seat. PW8 gave evidence that the car was in the possession of the respondent for more than seven months prior to his arrest. In the circumstances we think the trial judge was right to hold that at the material time the 3 packages were in the custody and control of the respondent. Indeed, the Court of Appeal agreed with the trial judge. But mere custody and control is not sufficient to establish possession for the purpose of the Act. [17] Therefore, the presence of the 3 packages in the car without a plausible explanation from the respondent could give rise to a strong inference that he had knowledge that the packages contained drug or things of similar nature. (See also Lim Beng Soon v. Public Prosecutor [2000] 4 SLR 589). We further agree with the prosecution that the fact that the drug was found wrapped in newspaper is no ground for saying that an inference could not be drawn against the respondent that he had the requisite knowledge. In this regard it is pertinent to refer to the observation of the Singapore Court of Appeal in Zulfikar bin Mustaffah v. PP [2001] 1 SLR 633, ……………………. [22] Reverting to the present case, it is therefore incumbent upon the court to scrutinize the entire evidence before the court to see whether an inference can be drawn against the respondent that he knew about the drug in the 3 packages found in the car. It is not in dispute that the 3 packages were found hidden in the car under the driver’s seat and the front passenger’s seat. He was alone in the car at the material time. One other important factor of relevance is that the car had been in his possession for the past seven months prior to his arrest. [23] It is true that the trial judge did not make any finding on the issue of knowledge necessary to establish possession of the drugs, as he relied on the cautioned statement in coming to his finding. The Court of Appeal on the facts correctly found that there was sufficient evidence to find the respondent to be in custody and control of the 3 packages found in the car and relying on the presumption under s. 37(d) of the Act the Court of Appeal went on to hold that the respondent was in presumed possession of the drug. [24] Applying the observations set out in the authorities cited above to the facts in the present case, the irresistible inference that may be drawn in the circumstances is that the respondent all along knew about the drug found in the car. The fact that they were found hidden under the seats of the car and wrapped in Chinese newspaper would not assist him to negate such an inference. From the evidence of PW5 it is clear that little effort was required to uncover what was contained in the 3 packages. Therefore, we are of the view that on the facts and in the circumstances of this case the learned trial judge, properly directed on the law, would have come to the finding that prima facie the respondent had possession of the drug independent of the statutory presumption under s. 37(d) of the Act.”

Therefore, it’s my finding that based on the direct evidence adduced by the Prosecution, the accused had the mens rea possession of the drugs and power to deal with the drugs when he was found with the drugs inside the motorcar by the police.

In the foregoing, it’s my finding that the prosecution has successfully established the element of possession for the charge.

The Prosecution relies on the presumption of trafficking under Section 37(da)(xvi) DDA, 1952 for the charge based on the quantity of drugs having exceeded the minimum quantity of 50 grams under this section, i.e. 166.2 grams. The Prosecution, therefore submits that an inference must be drawn that the drugs must be for purposes of trafficking and not for personal consumption. I agree with the submissions by the Prosecution and invoke the presumption of trafficking under this section.

In Parlan Dadeh v PP [2009]1 CLJ 717, it was held by the Federal Court as follows: - “……….. It is the combined effect of all the surrounding circumstances that must be considered. Having addressed our minds to the cumulative force of the facts adduced by the prosecution, we are entirely satisfied that the learned judge was amply justified in holding that the accused had mens rea possession and that the case came within section 37(da) of the Act so that the accused was presumed to be a trafficker of the drug in question………”

Finally, having subjected the evidence at the close of the prosecution’s case to maximum evaluation, the Court found that the Prosecution had made out a prima facie case against the accused for trafficking the drugs in respect of the charge. The accused was accordingly ordered to enter his defence.

The duty of the court at the end of a trial is set out in Section 182A of the Criminal Procedure Code, which reads as follows: - “182 A – Procedure at the conclusion of the trial

At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt. [Emphasis added]” In Md Zainudin bin Raujan v. Public Prosecutor [2013] 3 MLJ 773, the Federal Court stated: - “At the conclusion of the trial, s. 182A of the Criminal Procedure Code imposes a duty on the trial court to consider all the evidence adduced before it and to decide whether the prosecution has proved its case beyond reasonable doubt. The defence of the accused must be considered in the totality of the evidence adduced by the prosecution, as well as in the light of the well – established principles enunciated in Mat v. Public Prosecutor [1963] 1 MLJ 263 with regard to the approach to be taken in evaluating the evidence of the defence.”

The accused elected to give evidence on oath. He did not call any other witnesses.

The accused version is that he is a fruit wholesaler from Sengkang, Bukit Gambir, Johor and sells his fruits in Kuala Lumpur with a monthly income of RM 2,000.00.

According to the accused, on 20.02.2021 he needed to go to Kuala Lumpur using his lorry to take his personal belongings. His lorry had broken down and at around 3 pm, he went to his friend, Lim Chun Wee’s house to borrow a motorcar. Lim Chun Wee is the husband of PW10.

Lim Chun Wee then loaned his wife’s (PW10) motorcar bearing registration number JJW 34 to the accused. The accused knew from Lim Chun Wee that the car belonged to PW10.

When taking the motorcar, the accused did not place any of his personal belongings inside the motorcar and neither did he inspect what was inside the motorcar.

Thereafter, he left for Kuala Lumpur to take his money and documents for his fruit wholesaler business and went back to his rented house at Balakong, Selangor.

On 21.2.2021, at around 7 pm, the accused made his journey back from Kuala Lumpur heading towards the Plaza Tol Pagoh since he wanted to return the motorcar to Lim Chun Wee in Pagoh.

At around 9 pm, upon reaching Plaza Tol Pagoh, he was stopped by the police on duty in respect of the movement control order. The police asked him to produce the permit to cross the border.

The accused did not have a permit and surrendered his identity card to the police. Upon checking, the police found he had previous criminal records and the motorcar belonged to PW10.

This prompted the police to inspect inside the motorcar witnessed by the accused and the police found drugs tucked inside a shoe placed on the footrest of the back-passenger seat.

The drugs, shoes and the motorcar were seized by the police and the accused was detained.

The accused says that the drugs which were seized do not belong to him and he has no knowledge of the drugs found inside the shoe. According to the accused, during the period when he had loaned the motorcar from Lim Chun Wee, he had not seen the shoe or its contents.

The accused also says that the shoe does not belong to him and the fitting of the shoe carried out by the police shows the shoe are too big in size and loose for him.

According to the accused, Lim Chun Wee has been his friend for the past 10 years and was arrested previously relating to possession of drugs.

Lastly, the accused says the raincoat found inside the motorcar also does not belong to him.

As the presumption of trafficking was invoked against the accused, the onus is on the accused to rebut the presumption of trafficking.

In Abdullah Atan v PP & Other Appeals [2020] 9 CLJ 151, the Federal Court explained the role of presumption: - “The role of presumptions in the wider context of the criminal legal system may be simplified thus: where a statutory presumption is invoked to presume the existence of certain fact as being the ingredient of the offence, the onus then shifts to the accused to disprove the presumed fact on the balance of probabilities and to thereby exculpate himself from the charge. If he does so, he earns an acquittal. If he does not, he is guilty of the charge.”

It is trite law that the accused has to discharge this burden on the balance of probabilities as explained by Lord Diplock in PP v. Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89 on how a statutory presumption can be disproved: - “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a (sic) fact’s being “disproved” there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that that fact does not exist. In their Lordships’ opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it, it is more likely than not that the fact does not exist. The test is the same as that applied in civil proceedings: the balance of probabilities.”

Please also see Neo Koon Cheo v Regina [1959] CLJU 64 where Ambrose J was of the view that all that was required by an accused to rebut the presumption was to establish the probability of that which he was required to prove.

In my judgement, the crux of the accused's defence is that the drugs found by the police were concealed inside the shoe and he couldn’t have seen them. It was inside a shoe found underneath the front passenger seat, placed on the footrest of the back passenger seat, whereas the accused was sitting in front in the driver’s seat. Hence, he could not have seen or known the presence of the drugs inside the shoe.

Concerning this issue, PW10, the owner of the motorcar’s testified that the accused had gone to see her to borrow the motorcar. PW10 inspected inside her motorcar to ensure she did not leave anything before lending her motorcar to the accused. According to PW10, she has not seen the shoe. The pair of shoes in which the drugs were found by the Raiding Officer (PW4) are men’s shoes and not women’s shoes.

Furthermore, after taking the motorcar on 20.02.2021 at around 3 p.m. from PW10 up until the next day on 21.02.2021, evidence reveals that the motorcar, which according to PW10 did not have any of her things inside, was only with the accused and no one else.

Therefore, based on PW10's testimony that the shoes do not belong to her and she did not leave anything inside the motorcar before lending it to the accused, the shoes then can only belong to the accused, who had custody and control of the motorcar from 20.02.2021 at around 3 p.m. until the next day on 21.02.2021.

In the circumstances, the accused's explanation that he did not know the presence of the drugs tucked inside the shoes found in the motorcar that he was driving is not probable.

Next, the accused says that the shoes in which the drugs were found do not belong to him because the size of the shoes is too big for him. According to the accused, this is evident from the photograph (P46 A&B) and the accused's demonstration of wearing the shoe during the defence case.

As I have said earlier, I have inspected the shoes and noted that no size is written on them. The photographs (P46 A&B) show that the shoe laces are not tied. In my view, whether a person likes to wear a shoe which is loose or tight-fitting is a matter of individual preference and rather subjective. The fact that the shoe laces were not tied in the photographs could also contribute to the fact that the shoes did not fit the accused.

Be that as it may, the fact remains that it is only the accused who had custody and control of the motorcar at the material time when the shoe containing drugs was discovered by PW4.

The decision in Pendakwa Raya lwn Vijendran a/l Balakrishnan [2022] MLJU 169, cited by learned counsel for the accused in support of this point, can be distinguished because the facts in that case reveal that the trousers which were tight-fitting for the 2nd accused, were found together with clothes belonging to the 1st accused.

Further, it is also my finding that based on PW10’s testimony that she has not seen the shoe, the shoe therefore does not belong to her and hence there is no necessity for fitting the shoes to be carried out on PW10.

Next, the accused submits that he has given a sufficient explanation for his conduct as required by Section 9 Evidence Act, 1950. Please see Parlan Dadeh (supra).

According to the accused, his conduct of looking worried and afraid when stopped by the police cannot be taken to show that this was because the accused knew the existence of drugs inside the motorcar but it was because the accused did not have a valid permit to cross the border during the enforcement of the Movement Control Order. Further, the accused was under the impression that the SSM search for his business was sufficient for him to cross the border, given the short changes which took place on the enforcement and non-enforcement of the Movement Control Order at the material time. Hence, according to the accused, he has given sufficient explanation for his conduct as required by Section 9 Evidence Act, 1950. Please see Parlan Dadeh (supra).

In my judgement, the evidence of the accused’s conduct is not very significant given my finding that it was only the accused alone who had custody and control of the motorcar at the material time when the drugs were found tucked inside the shoes in the motorcar.

In Wong Joo Sen v. PP [2010] 8 CLJ 392, concerning a similar issue, it was held by the Federal Court as follows: - “In this case the reaction of the appellant in looking stunned or shocked upon being approached by the police is clearly admissible under s. 8 since it has a direct bearing on the fact in issue as the drugs found were tucked away in the front of the jeans worn by him. The explanation for his reaction must therefore be offered by he himself as required by s. 9. The court cannot, on its own, offer an explanation for his reaction. However, in his defence the appellant did not offer any explanation at all for his reaction upon being approached by the police. It can therefore be validly used as evidence against him. The inference to be drawn from the evidence of conduct of the appellant against the background of the other evidence is that he knew what he was carrying (see Deputy Public Prosecutor v. Brooks). It follows that the stand taken by the appellant in relation to the evidence of conduct is not sustainable. Be that as it may, the evidence of conduct in this case is not very significant in view of the manner in which the appellant carried the drugs on his person from which it can reasonably be inferred that he had knowledge of the drugs in his possession (see the cases referred to earlier, and, in particular, Tunde Apatira and Public Prosecutor v. Abdul Rahman bin Akif).”

Therefore, in my judgement, although the accused’s explanation as to his conduct is relevant but it is not significant to rebut the findings of possession on a reasonable doubt and trafficking on the balance of probabilities.

The accused also raises the issues that based on the fingerprint and DNA analysis, there are signs of the presence of other individuals in the motorcar or who have accessed and used the motorcar.

According to the accused, two fingerprints belonging to some other individual were present on the android screen and there are weak DNA profiles on the steering wheel and raincoat.

In my judgement, the presence of fingerprints and DNA profile belonging to some other individual cannot be ruled out because the motorcar belongs to PW10. Surely PW10 would have used the motorcar with her family members sitting inside the motorcar. PW10 did testify during her examination in chief that she had driven her car with her parents and children as passengers. PW10 also said that she had not seen the raincoat found in the boot of the motorcar. The raincoat therefore, could not belong to her.

In my judgement, the evidential value of DNA profiles and fingerprint impressions is only corroborative and it is not significant if there is sufficient evidence to prove the prosecution’s case.

In PP v. Ebrahim Mirzaie Hj Ebrahim Deh Mokhtar [2017] 1 CLJ 575, Ahmadi Asnawi (JCA), held as follows: - “[38] The evidential value of CCTV evidence, DNA profiles and fingerprint impressions as decided by high authority is only corroborative. The learned trial judge correctly appreciated the position. In PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233, the Federal Court stated that: 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 is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumes little value or significance. [39] Now, having scrutinised the evidence, we were with the learned DPP that even without the CCTV evidence, DNA profiles and fingerprint impressions, there are sufficient evidence to prove the prosecution’s case. [40] The evidence of both PW2 and PW3 (DSM Hairudin bin Abdullah) were uncontroverted that they saw the respondent pulling the bag, exh. P10, before and at the time they approached the respondent. The bag they saw and seized was a brown coloured bag carrying the “Sphere” brand name, exh. P10. It was the respondent himself who had put the said bag in the scanning machine and it was equally the respondent himself who had carried the said bag to the narcotics office. Both testified that the examination of the said bag was done in the presence of the respondent. These are uncontroverted direct evidence which needs no further support for its sustenance.”

Similarly, in the present case, the police found it was the accused alone who had custody and control of the motorcar at the material time when the drugs were found tucked inside the shoe in the motorcar. Therefore, there is no merit in this issue raised by the accused.

Next, the accused pointed the finger at Lim Chun Wee, who had a history of drug case involvement, as the person to whom the drugs belonged. Lim Chun Wee is the husband of PW10. According to the accused, this defence is not an afterthought but was already raised during the prosecution’s case.

Learned counsel for the defence also submitted that the Prosecution failed to offer Lim Chun Wee as a witness to them at the end of the Prosecution’s case.

I have perused the evidence at the close of the Prosecution’s case and find that the Prosecution did offer Lim Chun Wee to the defence and the defence did inform the Court that they require Lim Chun Wee to be called as a witness. However, the defence elected not to call Lim Chun Wee at the end of their case, although they had the opportunity to do so.

Furthermore, according to the Prosecution, the accused made no mention of Lim Chun Wee during investigations and recording of the statement by the Investigating Officer (PW9) and only raises the issue of the drugs found in the motorcar belonging to Lim Chun Wee now.

In the circumstances, I am unable to see the relevance and significance of Lim Chun Wee’s evidence to the facts leading to the accused’s arrest and the finding of drugs tucked inside the shoe in the motorcar driven by him.

Therefore, in my view, the decision in Pendakwa Raya lwn Maitham K Alwan [2017] MLJU 1443, cited by learned counsel for the accused, does not apply because the issue whether Lim Chun Wee is a fictitious character does not arise in the present case and the facts referred to in that case are distinguishable from the facts in the in the present case.

Lastly, the accused raised the issue that there was no evidence concerning who had custody of the drug case exhibits and where it was kept when the Raiding Officer (PW4) stopped at the Pagoh police station to lodge a police report. Therefore, according to the defence, the chain of evidence is broken.

According to the accused's version, in his defence, he did not see PW4 bringing the drug case exhibits along when he alighted from the car to enter the Pagoh police station.

On the other hand, according to PW4’s evidence in chief, during the entire journey after arresting the accused, the accused and the case exhibits were in his custody.

I find the defence did not challenge PW4 on this issue as to where and with whom were drug case exhibits were when PW4 went to the Pagoh police station to lodge a report.

In addition, when PW4 was recalled for further examination in chief, he testified as follows: - : You faham tak soalan I, insp? : Ya, saya faham. Saya setelah buat menahan OKT, selepas buat pemeriksaan dengan kadar segera saya bawa tangkapan dan rampasan ke balai berdekatan iaitu Balai Polis Pagoh. Mahkamah: Slowly. Dengan kadar segera? SP4 : Dengan kadar segera membawa OKT dan rampasan balai polis berdekatan iaitu Balai Polis Pagoh sepertimana peruntukkan Seksyen 107 Kanun Tatacara Jenayah dan semua laporan saya buat dalam bentuk tulisan dan direkodkan di balai tersebut. Setelah selesai dokumentasi dalam bentuk tulisan, saya bawa KT dan rampasan, serah kepada IO kes. Itu sahaja.”

Hence, it can therefore be safely concluded that the custody of the drug case exhibits was with PW4 at all times when he stopped and went inside the Pagoh police station to lodge the police report. Wherefore, I find no merit in the accused's contention that there is a break in the chain of evidence.

Based on the reasons stated above, it is my finding that the accused version that the impugned drugs found inside the shoe, which was in the motorcar driven by him does not belong to him and he has no knowledge of the drugs are not probable and true. In my judgement, the accused's defence is not probable.

In the foregoing, I find the accused has failed to raise a reasonable doubt as to possession of the impugned drugs and failed to rebut the statutory presumption of trafficking on a balance of probabilities under section 37(da) DDA in respect of the charge.

After considering all the evidence, I find that the prosecution had successfully proven their case in respect of the charge beyond a reasonable doubt pursuant to Section 182A (2) CPC against the accused.

I therefore find the accused guilty of the charge of trafficking under Section 39B(1)(a) DDA and convict the accused.

The prosecution sought for stiffer and appropriate sentence to be imposed on the accused citing the seriousness of the offence and public interest. Learned counsel for the accused urged the Court not to impose the death sentence by mitigating that the accused is 42 years old, is a fruits wholesaler, married and has a 5 year old child, stays with his aged parents, supports his parents financially and takes care of them, parents dependent on his income, after his arrest his father had to take over the fruits wholesaler business. Lastly, learned counsel for the accused submitted that the quantity of drugs is small and the accused had cooperated with the police.

There is no longer any condition to be satisfied before the Court may exercise its discretion not to impose the death sentence. In the circumstances, I exercised my discretion not to impose the death sentence and sentenced the accused to a term of life imprisonment, which is defined as 30 years under section 3 of the Criminal Justice Act 1953. The sentence was ordered to run from the date of arrest. It was further ordered that the accused undergo a minimum of twelve (12) strokes of whipping. Dated 11th July 2025 t.t. SURIA KUMAR DJ PAUL JUDGE HIGH COURT OF MALAYA MUAR JOHOR DARUL TA’ZIM For the Accused : Mod Razak Bin Sharif with Safiah Binti Abdul Aziz Messrs Safiah Aziz & Co. Advocates & Solicitors No. 9, 2nd Floor, Jalan Mega Pusat Perdagangan Mega Jalan Sakeh 84000 Muar Johor [Ref. No. : SACO/CR/MUAR/BOO/2021] For the Respondent : Nur Sulehan binti Abd Rahman Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Daerah Muar Mezzanine Floor Muar Trade Centre 16, Jalan Petrie 84000 Muar Johor [Ref. No. : ]