Chua Swee Hock v Pendakwa Raya (J-05(M)-466-12/2016)

Content

IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO : J-05(M)-466-12/2016 BETWEEN CHUA SWEE HOCK … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In The Matter Of The High Court Of Malaya At Johor Bahru Criminal Trial No: 45A-33-12/2014 Between Public Prosecutor And Chua Swee Hock] CORAM MOHD. ZAWAWI BIN SALLEH, JCA IDRUS BIN HARUN, JCA KAMARDIN BIN HASHIM, JCA 2 JUDGMENT OF THE COURT INTRODUCTION [1] In this appeal, four charges were preferred against the appellant, two of which were for the offences pertaining to trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234 for short) whilst the remaining two were related to the offences of possession of dangerous drugs under section 12(2) of Act 234. The appellant was convicted and sentenced by the High Court to death by hanging on the second and third charges for the offences of trafficking in dangerous drugs. He was also convicted and sentenced to 3 years of imprisonment on the first charge and 2 years of imprisonment on the fourth charge for the offences of possession of dangerous drugs, both these sentences were ordered to run concurrently. The appellant appealed to this Court against the orders of his convictions and sentences. [2] The charges against the appellant were couched in the following terms: First Amended Charge “Bahawa kamu pada 18.7.2014, jam lebih kurang 9.45 malam di rumah alamat No.25, Jalan Kasa 10, Taman Sentosa, 80150 dalam Daerah Johor Bahru, di dalam Negeri Johor Darul Ta’zim, telah di dapati dalam milikan kamu dadah berbahaya jenis Nimetazepam berat bersih 14.7 gram dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh di hukum di bawah seksyen 12(3) Akta yang sama.” 3 Second Amended Charge “Bahawa kamu pada 18.7.2014, jam lebih kurang 9.45 malam di rumah alamat No.25, Jalan Kasa 10, Taman Sentosa, 80150 dalam Daerah Johor Bahru, di dalam Negeri Johor Darul Ta’zim, telah didapati mengedar dadah jenis Methamphetamine berat bersih 712.94 gram dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh di hukum di bawah seksyen 39B(2) Akta yang sama.” Third Amended Charge “Bahawa kamu pada 18.7.2014, jam lebih kurang 9.45 malam di rumah alamat No.25. Jalan Kasa 10, Taman Sentosa, 80150 dalam Daerah Johor Darul Bahru, di dalam Negeri Johor Darul Ta’zim, telah didapati mengedar dadah jenis 3,4-Methylenedioxymethamphetamine (MDMA) berat bersih 294.28 gram dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 39B Fourth Amended Charge “Bahawa kamu pada 18.7.2014, jam lebih kurang 9.45 malam di rumah alamat No.25, Jalan Kasa 10, Taman Sentosa, 80150 dalam Daerah Johor Bahru, di dalam Negeri Johor Ta’zim, telah didapati dalam milikan kamu dadah berbahaya jenis Ketamine berat bersih 3.06 gram dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 12 (1) Akta Dadah Berbahaya 1952 yang boleh di hukum di bawah seksyen 12 (3) Akta yang sama.” THE PROSECUTION CASE [3] We think it is legitimate to begin by considering the facts relating to the prosecution case which appear sufficiently and clearly in the Grounds of Judgment of the learned trial judge garnered from the evidence adduced by the prosecution. On 18.7.2014, based on information received, a police raiding party headed by Inspector Hisam bin Abu (PW5) proceeded to the premises at No.25, Jalan Kasa 10, Taman Sentosa 80150, Johor Bahru 4 (the premises). The raiding party arrived at the premises circa 9.15 p.m. and observed the place. At around 9.45 p.m. the police party saw a man later identified as the appellant leaving the premises and locking a padlock for the grill within its compound. PW5 and his team entered the premises compound as the main gate was not locked and arrested the appellant. The appellant attempted to flee but was unsuccessful. PW5 conducted a body search on the appellant but did not find any incriminating item.

Preamble

Pursuant to the body search however, a key (Exhibit P19(1)) was recovered from the trouser pocket of the pants (Exhibit P17) worn by the appellant. PW5 then instructed the appellant to unlock the padlock using the seized key. After the padlock was unlock, PW5 and his team entered the premises as the inner door to the premises was not locked. [4] A search conducted in the living room did not yield anything incriminating. There were three rooms in the house. PW5 and his team continued their search in the second room located at the left side at the back of the house. The door to this room was ajar and not locked. In this room, PW5 and his team discovered a “Bird’s Nest Ginseng Rock Sugar” box (Exhibit P20(1)) containing two wrapping papers (Exhibits P20(2) and P20(4)) respectively lying on the floor. When these wrapping papers were opened, it was found each of it to contain 100 aluminium strips with 10 Erimin 5 pills in each strip (Exhibits P20(2) A1-1 to A1-100 and P20 (4) A2-1 to A2-100) totalling 2000 Erimin 5 pills. [5] PW5 also found a tenancy agreement (Exhibit P29) between one Goh Tat Chew and the appellant and a Polo Hunter brand bag (Exhibit P11) which was opened and lying on the floor in the said room beside Exhibit P11. From the said Polo Hunter bag PW5 found – 5

Subparagraph

(xxii) in the second and third charges respectively, all these incriminating drugs were found from the same room and thirdly, there was the evidence of adverse conduct on the part of the accused that was witnessed by PW5. This evidence justified the finding of the learned judge that, given the circumstances of the case, the prosecution had made out a case of actual possession of the impugned drugs with respect to all the 4 charges. The 21 combined and cumulative effect of the evidence as alluded to above and his overt conduct which manifested in the evidence, clearly demonstrated the existence of knowledge on the appellant’s part of the illicit drugs and thus possession that indeed went beyond mere passive possession. The defence argument overlooked the fact that the combined weight of the impugned drugs in respect of the 2 trafficking charges was much larger than was likely to be needed for his consumption which made an inference of trafficking in the said drugs an inevitable and acceptable conclusion. Such large quantity when combined with the weights of the impugned drugs in the 2 charges for possession and considered in light of the types of drugs involved namely Nimetazepam (in the first charge), Methamphetamine (in the second charge), 3,4-Methylenedioxymethamphetamine (MDMA) (in the third charge) and Ketamine (the fourth charge), would, in our opinion, render the inference of trafficking in dangerous drugs irresistible and dispel any possibility of mere possession. In the event, we could not find fault in the finding made by the learned judge that the appellant had actual possession of the illicit drugs in all the 4 charges and that the defence contention on this point in our judgment involved a clear fallacy. [31] The second main point that was argued on the first ground in this appeal raised yet another serious question of whether there was a possibility of access to the appellant’s house by Ah Man. The position adopted by the defence was described by learned counsel in this Court to the effect that a person by the name of Ah Man had access to the appellant’s premises. This contention was based on the defence assertions that the Volvo car seized by PW5 and not produced as exhibit belonged to Ah Man, a motorcycle and a dog found at the premises belonged to Ah Man, the florescent porch light which was lighted on 20.7.2014 suggested that someone would have entered the house, and the dismissal by the 22 learned judge of the significance of 2 male DNA found on the toothbrush and the mixture of DNA on the shaver. The learned judge dealt with all these assertions very carefully and we quote the relevant paragraphs from the grounds of judgment – “[37] The defence submitted that there was evidence of access by others to the said premises. This was based on photographs that showed the presence of a motorcycle and a dog which were not there at the time of the raid. These photographs were however taken on 20.7.2014 which of course is post arrest, the arrest having taken place on the 18.7.2014. [38] SP5 had testified that the main gate to the premises were not locked and therefore it was possible for anyone to enter the compound. The evidence however revealed nothing to suggest that anyone had access inside the premises. This was also the case in respect of the defence submission that as the photographs of the premises showed that the fluorescent light at the car porch appeared to be switched on, this showed that someone else had access to the premises besides the accused. Even if the light was switched on as alleged, this was post arrest. This being the case, I find that this did not result in any prejudice to the prosecution case. [39] Although the accused’s DNA was not found on toothbrush P31(1) P10B(10), this item was not found in the second room nor was it found in proximity to P20(1) and P11 and therefore does not necessarily mean that the accused was not the sole occupant of the premises as the item could have been used by guests who may have stayed over. In any event, these do not negate the fact that the evidence was that the accused was the sole occupant of the said premises. [40] With regard to the fact that there were at least 3 DNA contributors on a Gillett shaver P30(1)/P10B(11), the DNA of the accused cannot be excluded as one of the contributors. 23 [41] The absence of the lifting cards negative does not result in prejudice to the prosecution case as firstly, it was given in evidence that the lifting cards did not contain sufficient finger print characteristics for analysis and secondly, the absence of the accused’s finger prints did not rule out the fact that the accused was the sole occupant of the said house and in actual possession of the impugned drugs. [42] It was the prerogative of the prosecution to call or produce any witnesses or documents that are relevant to prove their case. As long as there is no withholding or suppression of evidence, there is no justification for invoking the adverse presumption against the prosecution under section 114(g) of the Evidence Act 1950. There was no such justification here. [43] By the same token, the non-production of the Volvo car did not ipso facto mean that the prosecution was suppressing evidence. In light of the fact that the accused was the only one occupying the house, the non-production of the said Volvo car held no major significance. There was sufficient evidence that the accused was the sole occupant of the said house.” [32] We would once again emphasise that the learned judge was correct in his findings that the appellant was the only person inside the premises when PW5 and his team of police personnel were observing the house. There could be no doubt whatsoever that this finding, taken together with His Lordship’s further finding that the appellant was the sole occupier of the premises, which finding was based on overwhelming evidence highlighted above, amply justified the conclusion that the appellant had the actual possession of the illicit drugs. We may add that the appellant was arrested on 18.7.2014 and the fact that the photographs which showed the presence of a motorcycle and a dog were taken on 20.7.2014, 2 days after his arrest, meant that the appellant was not the right person to testify on how the motorcycle and the dog appeared in the said photographs. His conduct in 24 attempting to flee was a clear proof that he had knowledge about the drugs found in the premises. In view of the overwhelming evidence and having subjected the above findings of the learned judge to our anxious and full scrutiny, it was plain that the learned judge was entirely correct and justified in arriving at these findings. We had no reasons whatsoever to disagree with these findings or come to a different conclusion. Accordingly, we could not accede to the argument urged for the appellant that there was a possibility of access to the said house by Ah Man. [33] Before concluding at the close of case for the prosecution that the prosecution had established a prima facie case against the appellant on all the 4 charges, insofar as the trafficking charges were concerned, the learned judge utilized the presumption of trafficking provisions in section 37(da) of Act 234. It is, we apprehend, the basic requirement of the law that, any reliance on the presumption under section 37(da) would necessitate the prosecution to prove that the appellant had possession on the impugned drugs. The learned judge, on his part, was required, as evident by the use of the word ‘found’ in the opening phrase of section 37(da), to make an express affirmative finding of the basic or primary facts with regard to the possession of the impugned drugs so that when it was fulfilled, the proof of possession would consequently give rise to the presumption of trafficking [Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273 at pages 288 and 289]. In view of our earlier finding that the learned judge was correct in holding that the appellant was indeed in actual possession of the impugned drugs, the invocation of the presumption of trafficking pursuant to section 37(da) of Act 234 was inevitable upon making an express affirmative finding of the basic or primary facts concerning the possession of the illicit drugs by the appellant. 25 [34] In our judgment, based on the foregoing reasons and so far as the evidence showed, we accepted the finding of a prima facie case made by the learned judge and this finding, we would say, could not be faulted as it was manifestly supported by clear evidence. The first ground in the submission of the appellant must therefore fail and as we had endeavoured to consider it in great detail, the matter thus required no further discussion. [35] That brings us to the second and in fact the remaining question submitted before us by learned counsel for the appellant. We were pressed by learned counsel with the argument that the learned judge had failed to adequately appreciate the defence of the appellant. We shall endeavour to state in brief that the defence of the appellant was that the appellant had no knowledge of the drugs and that Ah Man was the actual trafficker. The appellant lived at the address stated in the charges renting the premises from PW8. But he rented the second room to one called Lew Kew Seng @ Ah Man and that the drugs found in the second room belonged to Ah Man. On 18.7.2014 at 9 pm the appellant said, he received a call from DW2 who informed him that Ah Man instructed DW2 to transport Ah Man’s belonging to the premises. At about 9.30 pm DW2 arrived at the premises and when the appellant came out from the premises, DW2 informed the appellant that Ah Man’s belongings were in the back car bonnet. The appellant said he helped to carry the Polo Hunter bag (Exhibit P11) whereas DW2 carried the Bird’s Nest Ginseng Rock Sugar box (Exhibit P20(1)] into the premises. The latch on the door to the second room was hooked together but not locked. The appellant then opened the door to the second room and the appellant together with DW2 then placed Exhibits P11 and P20(1) beside the wall by the door of the second room. Before leaving the second room, the appellant hooked back the latch on the door to the said room but the 26 room was not locked. The appellant chatted with DW2 for a while in the living room for about 5 to 10 minutes and thereafter DW2 left the premises. [36] We would in dealing with the issue raised by the defence, start off by quoting the excepts from the judgment of Edgar Joseph Jr. FCJ in the case of Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705 on the need to put the defence case to relevant prosecution witnesses. At page 718 His Lordship by way of guidance said – “Speaking generally, in a criminal trial, the whole point and purpose of the defence having to put its case to such of the prosecution witnesses as might be in a position to admit or deny it, is to enable the prosecution to check on whether an accused’s version of the facts is true or false, and thus avoid the adverse comment, that the defence is a recent invention in other words, “kept up its sleeve”, as it were – and revealed for the first time when the accused makes his defence from the witnes box or the dock, thus detracting from the weight to be accorded to the defence.” [37] In Saabani Kigongobero & Anor v Public Prosecutor and another appeal [2014] 3 MLJ 858 the Court of Appeal had referred to the case of Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 and had this to say – “[25] In Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 the Federal Court had stated the general rule that failure of a defence to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. Applying the general rule aforesaid, it is the duty of the defence to put their case to the prosecution witnesses and failure to do so will render the defence being labelled as an afterthought or a recent invention.” 27 [38] We referred to the above cases because it was apparent from the appellant’s defence that the fact that DW2 had allegedly dropped by the premises to pass Ah Man belongings from 9.00 to 9.30 pm was never put to the prosecution witnesses namely PW5 and PW9 who might be in a position to admit or deny it. The defence, moreover, did not challenge PW5’s evidence that he and his team had arrived at the premises at 9.15 pm, observed the house until 9.45 pm and about 9.45 pm PW5 saw the appellant leaving the premises. Learned counsel did not cross examine PW5 as regards the arrival of DW2 in Proton Wira car to the premises nor was PW5 asked whether he had seen DW2 leaving the premises between 9 pm until 9.45 pm. Learned counsel only put to PW5 in cross-examination that a guy named Encik Razlan came to the premises to deliver Ah Man’s belongings before 9 pm. Clearly, PW5 was never cross-examined by learned counsel on this line of defence. Such failure would, in our opinion, have a serious implication on the appellant’s credibility and the weight to be attached to his evidence [Siew Yoke Keong v PP [2013] 4 CLJ 149 at paragraph 46]. [39] It was in evidence that PW5 and his team of police personnel observed the house for 30 minutes and PW5 would definitely have seen DW2 enter the premises if he indeed went to the premises at the material time. The appellant testified in examination in chief that DW2 called him at 9 pm and DW2 arrived at the said house at 9.30 pm. DW2 on the contrary, testified that he arrived at the premises at approximately 9 pm. This discrepancy had left lingering doubts in our minds as to the exact time DW2 arrived and left the premises and such discrepancy, considered together with the palpable failure on the part of the defence to cross-examine PW5 on this material point had a serious implication on the appellant’s credibility and denied the prosecution of the opportunity to 28 check or verify the truthfulness of the facts alluded by the appellant and DW2. The evidence led by the defence through the appellant and DW2, in a manner of speaking, had no chance of being tested by such failure. Likewise, the belated disclosure of the defence suggested a concoction and would render such defence as an afterthought or a recent invention. As a parting remark on this issue, we refer to the decision of this Court in the case of Public Prosecutor v Yap Kim Wang [2016] 2 MLJ 402, which explained succinctly the importance of putting and suggesting in cross-examination, a prominent feature in our legal landscape – “[36] …The respondent’s failure to put forth its defence at the earliest possible stage or opportunity had occasioned a break of the rule of essential justice, as apart from springing surprise, it also leaves no room for rebuttal, denial, explaination or confirmation by the prosecution witnesses, particularly PW5, PW6 and PW7. Being the crux of the respondent’s defence, it is only to be expected that these issues should feature prominently in the cross examination of the aforesaid witnesses. Apart from his own testimony, the respondent’s defence can also be ascertained from the line of cross-examination of the prosecution witnesses. It is equally incumbent upon the defence to put forth its case at the earliest possible stage. As it were, the evidence posited by the defence through the testimonies of the respondent and DW2 has no chance of being tested and corroborated. The prosecution were denied of the opportunity to check or verify the truthfulness or falsity of the version of the facts alluded by the respondent and his witness – see Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209 at p 218. [37] … [38] In such event it only 5proper to rule that such failure by the respondent to put forth his case at the earliest possible stage would render the same to be likened as an afterthought or a recent invention, incapable of being accorded the due weight it deserve – see also Public Prosecutor v Lin Lian Chen [1992] 29 2 MLJ 561. There has been a belated disclosure of the defence which suggested concoction. This is elementary.” [40] Next, it is necessary to draw attention to one aspect of the appellant’s testimony in which he testified that he first rented a room to Ah Man on 15.7.2014 and issued a receipt, and Ah Man moved into the premises on 16.7.2014. A receipt (ID42) bearing number 35141 dated 15.7.2014 was then shown to the appellant and he admitted that he signed it and gave the same to Ah Man. However, when it was highlighted by the learned judge that another receipt that was produced by the defence through PW5 and marked as ID34 at that stage bore a different date of issuance, serial number and format, the defence made no attempt to clarify the existence of the two different receipts, they instead told the court that it was merely a mistake. When questioned by his counsel, the appellant admitted that the signature in Exhibit D34 was his, but the learned judge found, and we agreed, that the said signature, even to the untrained eye significantly differed from the signature in ID42. [41] The defence, despite informing the court that ID42 would be properly tendered later, however did not do so. Instead, ID34 was tendered and marked as Exhibit D34. Cross-examined further as to the difference in date in Exhibit D34, the appellant changed his stance when he said he had actually rented the room to Ah Man on 5.6.2014. This was, however, in contradiction to his earlier testimony that he rented the room to Ah Man on 15.7.2014. It would be useful to remember that Exhibit D34 was tendered as evidence and the notes of evidence showed that it was so tendered as the appellant admitted that he had issued and signed it. During cross-examination however, the appellant claimed that Exhibit D34 was actually issued by his girlfriend. We agreed with the prosecution’s contention that 30 since the appellant was not the maker of the document, the same was not admissible in evidence. It ought not to have been tendered and marked as an exhibit at all as it was not evidence. It is clear in the authorities that any admission of inadmissible evidence even with consent or by waiver of the other party or whether challenged or not was wrongful and such inadmissible evidence remained inadmissible evidence, the effect of which was open to any court to assess [Ooi Lean Chai v Public Prosecutor [1991] 2 MLJ 552 at page 554]. [42] In our judgment, as the document was inadmissible, it was not to be treated as evidence and ought not to be considered. Even assuming for a moment that the receipt was admissible, the learned judge had correctly dismissed as invalid the earlier version of the appellant that he told Ah Man that the RM700.00 he had earlier paid as reflected in the receipt dated 5.6.2014 (Exhibit D34) and rejected as improbable the second version that he had asked Ah Man to pay the deposit and rental for the same amount again and hence the issuance of another receipt on 15.7.2014 (ID42) the reasons being that no reasonable person would agree to pay the amount of rental and deposit twice. [43] The appellant had admitted to signing Exhibits P29 (tenancy agreement), P32 (search list) and D34. The signatures in Exhibits P29 and P32 were similar but both signatures differed significantly from the signature in Exhibit D34. Having scrutinized the evidence of the appellant, we found that even the appellant himself agreed that the signatures in Exhibit D34, Exhibit P29 and ID42 were different. The discrepancies in these receipts (Exhibit D34 and ID42) and the oral testimony of the appellant in respect of Ah Man justified a conclusion that the defence story about Ah Man was a sheer fabrication. The learned judge was therefore 31 perfectly entitled to infer from these discrepancies in the appellant’s evidence as to when he rented the room and the date when the receipt (or receipts) were issued that the receipt was a fabrication and concoction of the appellant designed to provide a cover for his clandestine activity in trafficking in the dangerous drugs and that if caught out, he would have a convenient scapegoat in the said Ah Man or Lew Kew Seng to affix the blame to. [44] It was also in evidence that Exhibit D34 was not extended to PW9, the investigation officer. This evidence was elicited from the appellant who admitted that he did not surrender Exhibit D34 to PW9. The learned judge on this aspect correctly held that such omission could justifiably entitle this part of the appellant’s evidence to be characterised as an afterthought. [45] The appellant’s story that Ah Man occupied the second room was not tenable. In our judgment, no one in his right frame of mind would sleep on a solid floor without bed or mattress. It is important to remember that the appellant alleged that Ah Man owned a Volvo car and a motorcycle and was a salesman dealing in bird’s nest. It would be unthinkable for someone like Ah Man, considering his possession and occupation to be sleeping on the floor, he certainly could afford a mattress for himself to sleep on. In any event, as Ah Man moved into the house on 16.7.2014

Preamble

whereas the appellant’s arrest took place on 18.7.2014, it would not be logical for the appellant to see Ah Man 3 or 4 times during a span of 2 days. [46] Learned counsel questioned the learned judge’s assessment of DW2’s credibility contending that His Lordship had placed undue emphasis on his demeanour. One thing seemed to be clear. DW2 32 produced a record book (Exhibit D36) as proof that he kept a record of the trips which he made for Ah Man. However Exhibit D36 was not written by DW2 at all. The evidence of DW2’s wife, DW3, showed that Exhibit D36 was not a contemporaneous record of DW2’s day to day operations. DW3 testified that when she had time she would write on the said record book, sometimes on daily basis and sometimes on weekly basis. In examination-in-chief, DW2 testified that he had known the appellant for 7 months and when cross-examined, DW2 told the court that he had known the appellant between 4 to 5 months. It was undeniable that DW2 was close to the appellant and he was certainly an interested witness who testified on behalf of the appellant. In the grounds of judgment of the learned judge, on the issue of the evidence of DW2 and DW3, His Lordship, at paragraph [132], found the following in relation to their character and demeanour: “…I find that the evidence of both SD2 and SD3 were fabricated and concocted and I do not believe their version. Neither does their version result in the accused rebutting the presumption of trafficking under section 37(da) nor does it raise a reasonable doubt in the prosecution case in respect of all the charges.” [47] The learned judge in observing the demeanour of DW2 found his testimony to be a concoction and artificial. DW2 could answer questions with precision the address of the premises and the number of occasions he had been to the premises, to be precise on 16, 17 and 18.7.2014, without even attempting to flip the pages of Exhibit D36 to recall. The visits occurred in July 2014 and DW2 gave his testimony on 19.10.2016 which was more than 2 years after the alleged visits. However, when DW2 was asked about other matters which were unrelated to Ah Man, 33 DW2 had to pause to bring the memory of the past events to his mind before he could answer. Coincidentally, DW2 could remember exactly the time he went to the premises even though there was no record of timings of his visits to the premises in Exhibit D36, yet DW2 admitted that had he not been shown Exhibit D36 he could not have remembered the events that had happened on 16, 17 and 18 of July 2014. [48] DW2 explained that normally he would jot down the details with regard to these trips in his Buku 555 and at the end of the day he would pass the said Buku 555 to his wife DW3 to be recorded in Exhibit D36. However, DW3 in her testimony, told the court that DW2 whilst referring to his Buku 555 would read out to her the details to be recorded, either on daily basis or weekly basis. We would say on this aspect that best evidence rule required that the Buku 555 in question to be produced in court as it contained a contemporaneous recording whilst Exhibit D36 was not. Nonetheless, when DW2 was asked of the whereabouts of the Buku 555, he said that he did not know and he could not produce it in court. Both Exhibit D36 and Buku 555 were from the year 2014 but only Exhibit D36 was selectively kept until 2016. We agreed with the learned judge on this point that Exhibit D36 was not a reliable piece of evidence. Anyone could in our view actually create that piece of evidence. DW2 further admitted that there were certain particulars that were omitted in Exhibit D36 such as the day when DW2 handed a key (Exhibit D35) to the appellant’s sister. The selective recording of events in Exhibit D36 had driven the learned judge to hold that the integrity of the exhibit was questionable. [49] We would fully endorse the learned judge’s observation that it was most odd that Exhibit D36 was kept whilst the said Buku 555 was not 34 preserved and produced as exhibit in court. Further, it was a nonsensical act on the part of DW2 to put DW3 through the unnecessary inconvenience of recording the particulars if the Buku 555 already contained the same particulars. Moreover, as DW2 had himself admitted, he was driving the taxi illegally, therefore the need for Exhibit D36 and the so-called Buku 555 to be kept, for example, for income tax purposes, to borrow the words of the learned judge, would surely not have arisen. Under the circumstances, we agreed with the rejection of the evidence of DW2 and DW3 by the learned judge as it was made with sound and cogent reasons. [50] The learned judge had also addressed the issue relating to an exhibit involving a key (Exhibit D35) which the defence said was a duplicate key of the one found on the appellant at the time of his arrest. The appellant, during his cross-examination claimed that Exhibit D35 was given to DW2 by Ah Man on the day DW2 was asked by Ah Man to deliver the latter’s things to the house where the appellant lived. The appellant, however, contradicted himself on how Exhibit D35 could emerge in court. Despite the above evidence elicited during cross-examination, the appellant later claimed that after his arrest, Ah Man returned to the house to pack up his belongings and then handed over the key to DW2. The appellant further testified that he had instructed his sister to look for DW2 because Ah Man had disappeared, and DW2 then passed Exhibit D35 to the appellant’s sister. We now quote from the notes of evidence the relevant testimony of the appellant – “Q: juga pada D35 kunci ah man, mr chua kata serahkan pada ah man ya, macam mana dapat kunci D35 ini 35 yang arif kunci D35 ini telah diserahkan oleh ah man kepada abang lan sewaktu abang lan diminta untuk menghantar barang-barang ah man ke rumah yang arif. Q: pada 18.7.2014? bukan kunci D35 saya tidak dapat sewaktu abang lan menghantar barang-barang ke rumah yang arif. saya ditahan saya tidak tahu bila kunci D35 ini diserahkan Q: macam mana kamu tahu? bagaimana kunci D35 ini sampai ke mahkamah? selepas saya ditangkap ah man ada balik ke rumah ada mengemaskan barang-barang beliau kemudian ah man serahkan kunci ini kepada abang lan. Saya telah memaklumkan kepada kakak saya supaya mencari abang lan kerana ah man tidak dapat dikesan, abang lan telah serah kunci ini pada kakak saya, kemudian kakak saya telah serahkan kunci ini pada peguambela saya.” [51] The inconsistencies in the appellant’s evidence had cast doubt on the appellant’s credibility and his evidence therefore ought to be considered with suspicion. The appellant said that Ah Man could not be traced after he was arrested. The question which had emerged from this evidence was that how would the appellant know that DW2 had the key with him that had led the appellant subsequently to instruct his sister to obtain it from DW2 to be handed over to his counsel. Let us examine DW2’s evidence on this aspect of the defence case. DW2 said that 4 to 5 days after the arrest of the appellant on 18.7.2014, Ah Man had requested DW2 to deliver Exhibit D35 to the appellant’s sister. The evidence had led the learned judge to raise a pertinent question in His Lordship grounds of judgment as to how Ah Man knew or had anticipated that the key in question was crucial evidence that needed to be handed over to the appellant’s sister. We agreed with the learned judge when His Lordship, on this point concluded that this knowledge, if true, on the 36 part of Ah Man could only have come from the request of the appellant himself although this could not have been the case as the appellant had said that he hold lost contact with the said Ah Man after his arrest. We found in the end that it was an inevitable conclusion when His Lordship held that these discrepancies in the defence evidence had raised a justifiable inference that the evidence regarding the emergence of Exhibit D35 was a fabrication by the appellant designed to show that Ah Man had occupied and had access to the said premises. [52] Having scrutinized the evidence in totality and based on our long and careful consideration of this issue, we found that nothing material turned upon learned counsel’s argument that the learned judge had misdirected himself when he failed to adequately consider the appellant’s evidence. [53] Upon subjecting the entire evidence to our anxious and full scrutiny and read the grounds of judgment of the learned judge, we saw no reasons, when we dismissed this appeal earlier, to disturb the factual findings of the learned judge. His Lordship had judicially, comprehensively and adequately appreciated the evidence, in a way that left no margin of doubt in our minds that the orders of convictions and sentences against the appellant on all the 4 charges were perfectly safe. The evidence of the defence was not the truth nor capable of rebutting the presumption of trafficking under section 37(da) of Act 234 on the balance of probabilities or casting a reasonable doubt in the prosecution case. In all the circumstances and for the reasons that we had indicated, the upshot of our deliberations was that the appeal by the appellant against the orders of his convictions and sentences ought to be 37 dismissed. Accordingly, the orders of his convictions and sentences by the learned judge were affirmed. signed ( IDRUS BIN HARUN ) Judge Court of Appeal, Malaysia Putrajaya Dated: 20 December 2017