of the same Act. [2] At the end of the case for the trial, 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. The appellant has appealed against the conviction and sentence. S/N nx61m/0xnkekZYkFCdPQ3w Summary of evidence led for the prosecution [3] We shall first set out the evidence of the crucial prosecution witnesses that was summarized by the learned trial judge. [4] The prosecution called a total of six witnesses. The police raiding team was led by Insp. Mohamad Faizal bin Mahzir (the raiding officer, PW3). Acting on information received about drug trafficking activity, he led a team of eight policemen to the vicinity of the Nationwide Express office at the HS Commercial Centre in the Penampang District. They arrived about six hours before noon on the day in question and maintained surveillance near the premises of Nationwide Express, a courier service company. [5] At about noon, the team observed a Toyota Vios parked at Block B of the HS Commercial Centre. The driver of the vehicle, the sole occupant later identified as the appellant, alighted and walked alone towards the Nationwide Express office. Approximately five minutes later, he emerged carrying five parcels stacked in both hands and proceeded towards the car. PW3 was positioned about 10 metres away in his vehicle. As the appellant approached his Toyota Vios, the police team arrested him and seized the five parcels in his possession. [6] PW3 opened one of the parcels and discovered two chocolate tins inside, each containing a substance suspected to be methamphetamine. He also found one black bag that was carried by the appellant. It contained an invoice and a boarding pass. The S/N nx61m/0xnkekZYkFCdPQ3w appellant and the seized parcels were subsequently taken to the Penampang District Police Headquarters. [7] At the police station, all the parcels were inspected and marked by PW3. Each of the five parcels contained two packets of a substance suspected to be methamphetamine with a total gross weight of 5066 grams. He then handed over the appellant and the exhibits to Insp. Asman bin Jawal (PW6) who was the investigating officer of the case. [8] The next crucial witness for the prosecution was Miss Sim Kain Fan (PW4). She worked for Nationwide Express at the material time. She said that she handed over the five parcels to a customer. The delivery was recorded in a book that was shown to her. The reference number of the parcels was C2162074. She said the customer who took delivery of the parcels did not give his identity card to her but provide the parcel reference number. Therefore, she released the parcels to him together with an invoice accompanying them. The customer wrote the name “David Low 961212-14-5172” in the Delivery Record Book (P19). The Delivery Record Book records the date as 23 October 2019 and the time as 11:58 a.m. [9] PW4 said that the customer who collected the parcels was a Chinese man. He spoke in Mandarin to her. She identified him in the photographs shown to her that were taken after his arrest. However, when asked to identify him in the dock, she was not sure. S/N nx61m/0xnkekZYkFCdPQ3w [10] PW6, the investigating officer who received the appellant and the exhibits from the raiding officer said as follows. He testified that after he received the exhibits from PW3, he took 10 packets suspected to contain drugs from the five boxes and put them in a box before marking and sealing them. He secured them in the Exhibits Store until he sent them to the Chemistry Department for analysis on 25 October 2019. [11] The exhibits were received by Science Officer Biling Ak Peter Raig (PW1) at the Chemistry Department. He issued a Chemist Report stating that the substance in the all the ten packets that he analysed was methamphetamine with a combined net weight of 3448.1 grams. The exhibits were returned by the Chemistry Department after analysis on 27 July 2020. [12] PW6 also inquired with the National Registration Department (NRD) about the name of “David Low 961212-14-5172” that was written on the Delivery Record Book by the customer who collected the parcels in question from PW4. However, there was no match of the said name and identity card number in the records of the NRD. Decision of High Court at the end of the prosecution’s case [13] The learned Judicial Commissioner identified the following elements which the prosecution was required to establish before calling for the defence; that the appellant was in possession of the substance he was carrying, that he was trafficking in it at the time of S/N nx61m/0xnkekZYkFCdPQ3w his arrest, and that the substance was confirmed to be a dangerous drug, namely methamphetamine. [14] With respect to the nature of the drugs, learned Judicial Commissioner accepted the evidence of PW1 who examined the contents of the ten packets seized from the appellant. The defence argued that there was a break in the chain of evidence with respect to the box (P7(1)) that was used to keep the ten packets of drugs in the police exhibit store. The box was given to the store keeper (P.W. 2) on 24 October 2019 but the date that appears on the box is 25 October 2019. The investigating officer said that the box which was sealed was reopened for finger print dusting of the packets and resealed subsequently. Counsel for the appellant said that there was no mark of a second seal and therefore the box was not sealed when it was handed over to P.W. 2. The learned Judicial Commissioner dismissed this argument because the drugs were properly marked by the raiding officer (PW3) and the investigating officer (PW6) and was sealed properly when sent to the Chemistry Department. Her Ladyship found no break in the chain of evidence. She addressed this issue at length in paragraphs [19] to [36]. The cases to support the argument of counsel for appellant were also carefully considered. Her Ladyship concluded that the facts in those cases were materially different. This issue was not raised in the petition of appeal or in the written or oral submissions before us. In any event, we agree with the reasoning of learned Judicial Commissioner that there is no break in the chain of evidence. S/N nx61m/0xnkekZYkFCdPQ3w [15] With respect to the element of possession, the learned Judicial Commissioner found that the prosecution proved actual possession. The appellant had custody and control of the drugs as he was seen carrying the parcels in question after taking delivery from the courier service company. As for the element of knowledge, apart from the fact that he was stunned and agitated when accosted by the police, Her Ladyship also drew an adverse inference against him because he wrote a false name and identity card number on the Delivery Record Book when collecting the parcels. With regard to the element of trafficking, as the methamphetamine carried by the appellant was well over 50 grams, Her Ladyship invoked the presumption of trafficking under section 37(da) of Dangerous Drugs Act 1952. [16] For the above reasons, Her Ladyship found that the prosecution had successfully established a prima facie case. The defence [17] After defence was called, the appellant elected to give evidence on oath. His defence was as follows. [18] He came from Kuala Lumpur. He was given a part-time job by one Kenny with whom he communicated only through an online game platform known as “Moxiang” or the WeChat platform. His job was to collect parcels in Sabah. He was paid RM150 a day plus travel expenses. He was given the location of the Nationwide Express office and the tracking number for the parcels. Upon arriving in Kota Kinabalu, he rented a car and went to the said courier service S/N nx61m/0xnkekZYkFCdPQ3w company to collect the parcels. He was arrested and brought to the police station after he had collected the parcels. [19] He said while in the police station Kenny called him to inquire if had collected the parcels and he answered in the affirmative. He said that the police asked him contact the said Kenny and meet at a certain location but the latter did not turn up to meet him. The crux of the appellant’s defence is that he had no knowledge of the contents of the parcels as Kenny told him that it contained food. He is thus an innocent carrier. Decision of High Court at end of defence case [20] The learned Judicial Commissioner rejected the defence that Kenny had paid the appellant to collect the parcels after telling him that they contained food, as this defence had never been put to the prosecution witnesses. Kenny’s name was not given to the investigating officer either. Likewise, the alleged police plot to apprehend Kenny by inducing the appellant to arrange a rendezvous was also rejected, as it had not been put to the prosecution witnesses. Her Ladyship also concluded that it was not incumbent on the police to investigate anyone else as the name “Kenny” was never given to the police. Furthermore, the appellant was found in possession of the drugs and he admitted that fact. The learned Judicial Commissioner found that the presumption of trafficking was not rebutted on balance of probabilities. Hence, the appellant was convicted of the charge. S/N nx61m/0xnkekZYkFCdPQ3w [21] By the time of the decision of the court, The Abolition of Death Penalty Act 2023 (Act 846) had come into force and thus her Ladyship exercised her discretion not to impose the death penalty. She imposed 30 years imprisonment from the date of arrest and 12 strokes of the whip. Issues in the appeal [22] The two grounds pursued during oral arguments were that the investigation by the police was not properly conducted and that the prosecution failed to prove knowledge of the drugs on the part of the appellant. Only these two grounds were elaborated in the written submissions. However, all the grounds in the petition of appeal were repeated without any elaboration. Whether investigation incomplete? [23] This ground of appeal is centred on the seizure of the appellant’s handphone. PW3, the raiding officer, seized the device and handed it over to PW6, the investigating officer. PW6 testified that he did not submit the handphone for forensic analysis. Counsel for the appellant contended that PW6 ought to have done so, as the appellant had said in his defence that one “Kenny” had communicated with him via the “Moxiang” game application platform and the WeChat application on the handphone, either by text messages or audio calls. [24] The investigating officer further agreed that he had attempted to trace the “shipper” of the parcels who was stated as “Jacky” in the S/N nx61m/0xnkekZYkFCdPQ3w courier service company form by forwarding a request to the Cheras District Police. However, he received no response and took no further steps to pursue the matter. For this reason, counsel for the appellant cited numerous authorities and submitted that his client had been deprived of a fair, impartial, and thorough investigation as the sender of the parcels, i.e. the said Kenny was not investigated as his handphone was not forensically analysed. [25] The learned Judicial Commissioner addressed this issue in paragraphs [52] to [59] and paragraphs [80] to [81] of the written judgment. Her Ladyship found the omission of the investigating officer to locate and investigate the said Kenny or the origin of the parcels was irrelevant to the guilt of the appellant as he was caught carrying the drugs. [26] We agree with the High Court that the failure of the investigating officer to trace Kenny is immaterial to the case of the prosecution and did not occasion a miscarriage of justice. As observed in the Federal Court decision of Jorge Crespo Gomez v PP [2020] 8 CLJ 292, cited by the learned Judicial Commissioner, the critical question in a drug trafficking trial is whether the prosecution had proved that the accused had trafficked in the drugs in question. There may well have been another trafficker within the chain of transactions relating to the same drugs. However, the prosecution’s failure to investigate or apprehend other persons involved in the trafficking, even where their role may have been more serious, does not exonerate an accused if the evidence is sufficient to establish the elements of the offence against him. S/N nx61m/0xnkekZYkFCdPQ3w [27] We shall now refer to the facts of the case of Jorge Crespo Gomez v PP (supra) as the defence raised here with respect to an alleged third-party “real trafficker” is similar. In that case, the appellant was arrested at the airport while carrying 779 grams of cocaine in a suitcase which bore a tag with his name and which tallied with the baggage claim tag found on him. The defence of the appellant was that his friend, Solomon gave him the package in question and told him that it was spare part items. Therefore, the “real trafficker” was Solomon as appellant had no knowledge of the contents. The prosecution was faulted for not investigating Solomon. Apart from noting that only scant details of Solomon were given to the police, the Federal Court found that the failure to investigate him was not relevant as the appellant had opportunity to enquire and check the bag. In paragraphs [37] and [38], the Federal Court said as follows: [37] Therefore in such circumstances, the Alcontara notice purportedly issued by the appellant through his cautioned statement, D66, is irrelevant and of no consequence. [38] Further, it matters not whether Solomon is the real trafficker, as it was the appellant who was in possession of the drugs. It is also of no consequence whether the investigating officer failed to investigate Solomon or his phone numbers. [28] In the above-mentioned case, the Federal Court ultimately substituted the conviction for trafficking with one for possession, albeit on a different ground, namely, a misdirection arising from a non-direction concerning the presumption relied upon by the trial court. This finding of the Federal Court is captured in the following paragraph: S/N nx61m/0xnkekZYkFCdPQ3w [40] Therefore, given the aforesaid, as the learned JC had misdirected himself by way of non-direction when he failed in making a finding as to which presumption he was relying on, we set aside the conviction and the sentence by the learned JC and the Court of Appeal and substitute it with a conviction under s. 12(2) of the DDA and punishable under s. 39A(2) of the same. [29] Thus, in the instant case, we are also unable to see the relevance of a successful investigation into the sender of the parcels. Although the investigating officer made attempts to trace the sender of the parcels, these efforts were unsuccessful. The sender in the courier service company record was one “Jacky”. The attempt of the investigating officer to trace “Jacky” was unsuccessful. As for the individual by the name “Kenny” who allegedly contacted the appellant and requested him to go to Sabah, it was mentioned for the first time only when the appellant took the witness stand. This fact was admitted by the appellant during cross-examination which is as follows: Q7: Adakah kamu setuju penama Kenny yang telah kamu sebutkan di dalam Mahkamah ini tidak pernah disebut ketika Pegawai Serbuan (PW3) dan Pegawai Penyiasat (PW6) memberikan keterangan di dalam Mahkamah sebelum ini? Saya setuju. [30] For that reason, the police cannot be faulted for not investigating the said “Kenny” as his name was not given to the police during investigation phase or during the case for the prosecution at the trial. S/N nx61m/0xnkekZYkFCdPQ3w [31] Furthermore, the appellant went to the extent of flying from Kuala Lumpur to Kota Kinabalu merely to collect what he claimed were food parcels. As observed by the Federal Court in Jorge Crespo Gomez v PP (supra), parcels purportedly containing spare parts could just as easily have been forwarded to the recipient by post or courier. [32] With respect to the issue of shoddy or incomplete investigation, counsel for the appellant also submitted that the investigating officer did not investigate whether there were CCTVs near the place of arrest. The learned Judicial Commissioner did not find the failure of the investigating officer to search of CCTV recordings in the vicinity of the arrest relevant. [33] We agree with the reasoning of the learned Judicial Commissioner with respect to the failure of the investigating officer to procure CCTV evidence. We do not find that it creates a gap in the case for the prosecution or that it amounts suppression of evidence. The appellant was seen carrying the parcels in question at the time of the arrest by the police team. The investigating officer said he was in a vehicle that was only 10 metres away from the appellant and that he could see the accused carrying the parcels. The appellant himself when giving evidence did not deny that he collected the parcels from the Nationwide Express office and was carrying the same when he was approached and arrested by the police. His answers given during cross-examination on this issue are as follows as noted by the learned Judicial Commissioner: S/N nx61m/0xnkekZYkFCdPQ3w Q9: Saya rujuk kamu kepada P11. Setuju dengan saya bahawa berdasarkan P11 kamu ditangkap pada 23.10.2019 jam lebih kurang 12.05 hrs berdekatan Nationwide Express, HS Commercial Centre, Penampang? Setuju Q10: Setuju dengan saya ketika kamu keluar daripada Pejabat Nationwide Express, Kamu sedang membawa lima bungkusan Nationwide Express? Setuju [34] Furthermore, with respect to the discovery of the drugs in the parcels that he carried, the appellant admitted as follows during cross-examination: Q20: Adakah kamu setuju hasil daripada pembukaan kelima-lima parcel di hadapan kamu di Balai Polis telah mengandungi barang barang salah sepertimana yang terdapat pada P21(1)-(5)? Setuju. [35] Therefore, the facts relating to the arrest of the appellant and the fact that he was carrying the parcels are not in dispute. In premises, we reiterate that this ground of appeal is wholly without merit, as the CCTV evidence, even if it existed, was not necessary to close any gap in the narrative, and the failure to produce it did not occasion any unfairness in the trial. S/N nx61m/0xnkekZYkFCdPQ3w Knowledge [36] Counsel for the appellant submitted that the prosecution failed to prove knowledge of the contents of the parcels on the part of his client. Knowledge is the key element in the offence of possession or trafficking of drugs and it must be proved beyond reasonable doubt. Proof of knowledge as stated in the Federal Court case of Parlan bin Dadeh v PP [2008] 6 MLJ 19 is often a matter of inference from proven facts. [37] In the instant case, the principal submission of counsel for the appellant on the issue of knowledge is that the appellant could not have had knowledge of the contents of the parcels, as he had no opportunity to inspect them between the time of collection and his arrest. [38] We find no merit in this ground of appeal for the following reasons. A lack of opportunity to inspect the parcels, on its own, is insufficient to support an inference that the appellant had no knowledge of their contents where there is overwhelming evidence to the contrary. This point was addressed by the learned Judicial Commissioner. [39] The appellant claimed that he undertook the long journey from Kuala Lumpur to Kota Kinabalu merely to collect five parcels at the behest of one Kenny, who gave him instructions via the WeChat application. For his efforts, he was paid RM150 per day plus expenses, and was told that the parcels contained only food items. S/N nx61m/0xnkekZYkFCdPQ3w The learned Judicial Commissioner found this account to be implausible. As we said earlier, parcels containing food items could just as readily have been sent directly to the ultimate recipient, at far less cost and inconvenience. [40] Furthermore, the appellant’s conduct while collecting the parcels, and his reaction upon arrest, provided a good reason for the trial judge to infer that he was aware that the parcels did not contain something innocuous such as food items. The appellant did not produce his identity card when collecting the parcels, but instead provided only the reference number. PW4, who was in charge at the courier company’s counter, said that this was acceptable. However, when asked to acknowledge receipt of the parcels, the appellant wrote a fictitious name and identity card number (David Low 961212- 14-5172) in the Delivery Record Book. If he genuinely believed that he was collecting parcels containing nothing more than food items, there would have been no reason for such subterfuge. In court, he gave another name, i.e. Kenny as the person who wanted the parcels to be collected. However, he had not disclosed the existence of Kenny or given any information about said person to the investigating officer for him to be traced and questioned. He only raised it when he gave evidence during the case for the defence. [41] The learned Judicial Commissioner also considered the appellant’s conduct at the time of his arrest under section 8 of the Evidence Act 1950. He was described as appearing “stunned and agitated”. We are mindful that this factor, taken alone, may be insufficient to justify an inference that the appellant had knowledge of S/N nx61m/0xnkekZYkFCdPQ3w the contents of the parcels. Even an innocent person might display a similar reaction when accosted and restrained by the police. However, when this conduct is considered cumulatively with his behaviour at the courier service counter, where he gave a false name, and the inherent implausibility of his reason for travelling to Sabah, there is a credible basis for inferring that he had prior knowledge of the contents of the parcels. [42] For the above reasons, there is no merit in the ground of appeal that the prosecution failed to prove that the appellant had knowledge of the contents of the said parcels that he was carrying. Other grounds [43] As we said earlier, only the above grounds were elaborated in the written submissions and also orally argued before us. Nonetheless, the grounds mentioned in the petition of appeal were repeated in a cursory manner in the written submission. They are as follows: