[Pendakwa Raya] v 1. ) Joseph A/l Christian (JB-45A-8-05/2019)

The 2 accused persons who are husband (“the 1st Accused”) and wife (“the 2nd Accused”) (collectively referred to as the “accused persons”) are jointly charged under Section 39B(1)(a) Dangerous Drug Act 1952 (DDA) for trafficking in 221.86 grams of Cannabis.

The charge reads as follows:- “Bahawa kamu bersama-sama Joseph A/L Cristian (No. K/P: 630825-01-5781) yang telah meninggal dunia, pada 27 May 11, 2023 2 Oktober 2018, jam lebih kurang 1.00 pagi, di No. 50, Jalan Perwira 6, Taman Chaah Jaya, dalam Daerah Segamat, dalam Negeri Johor Darul Ta’zim, telah didapati memperedarkan dadah berbahaya iaitu 221.86 gram Cannabis. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan.”

The 1st Accused died in custody prior to commencement of the trial.

Prosecution withdrew the charge against the 1st Accused on 8.10.2020 and proceeded against the 2nd Accused.

The prosecution called the following 6 witnesses -

PW1 - a storekeeper

(ii) PW2 - a photographer

(iii) PW3 - a member of the raiding team

(iv) PW4 - a chemist with Jabatan Kimia Malaysia

PW5 - raiding officer as arresting officer and complainant.

(vi) PW6 - the Investigating Officer [6] PW5 testified that on 26.10.2018 at around 11.00 pm, he had briefed 10 police personnel and officers from IPD Segamat with regards to information received from members of public relating to drug May 11, 2023 3 activities at a residence known as No. 50, Jalan Perwira 6, Taman Chaah Jaya, 85400 Segamat, Johor. [7] PW5 headed the raiding team at the said address and during the briefing designated duties to the members of his team. [8] After the briefing, the team arrived at the location. PW5 made sure his team members took their respective positions. [9] PW5 then made observation for about 10 minutes to ensure there were no movement into and out of the house. Next PW5 called out to the occupants of the house by introducing himself as a police officer. [10] PW5 then saw someone spying from the curtained window inside of the house but still no one opened the front door of the house. About 20 minutes later, an Indian man opened the front door grill and gate. [11] PW5 then identified himself again as a senior police officer and directed his team members to conduct body search on the Indian man. Nothing was found on him. [12] Thereafter PW5 directed the Indian man to bring him inside the house to conduct a search. When PW5 entered, he saw a woman occupant from the direction of the kitchen and 2 other occupants in the room. [13] PW5 then proceeded to search inside the house. PW5 found dried leaves scattered on the floor of the master bedroom’s bathroom and May 11, 2023 4 in the water channel. PW5 then collected the plant material and put it into a red plastic bag. [14] Next, PW5 proceeded to the kitchen where he saw an Indian woman coming from that direction earlier. PW5 opened the back door of the kitchen. One of his team members, Sjn. Muhammad Hariz Bin Sharil (PW3) stationed at the back of the house to keep a look out came up to him and told him that he saw an Indian woman 20 minutes ago opening the back-door grill and placing a box by the side of the door. PW3 then pointed PW5 to the black box. [15] Inside the box, PW5 found 9 lumps of compressed dried leaves wrapped in aluminium foil and 1 lump of compressed dried leaves wrapped in a transparent plastic suspected as Ganja. [16] PW5 also searched a motor vehicle type Toyota Vellfire bearing registration number JRW 6364 parked inside the compound of the house and found 1 lump of compressed dried leaves wrapped in transparent plastic on the front passenger seat. [17] Upon inspecting MyKad of the occupants, PW5 noted their residential address as No. 18, Jalan Penghulu Yunus, 85400 Chaah, Johor and this prompted PW5 head to this address to conduct further search. [18] Upon arrival at No. 18, Jalan Penghulu Yunus, PW5 saw an Indian man known as Jasonhays s/o Joseph standing beside the road in front of the house and detained him for purposes of investigation. May 11, 2023 5 [19] From PW5’s questioning, he found that Jasonhays is also a son of the accused persons residing at house at No. 50, Jalan Perwira which was raided by PW5 and his team earlier. [20] Thereafter occupants of the house together with Jasonhays were arrested and brought to the police station together with the case exhibits. [21] Suspects that were arrested :- a. Joseph a/l Chirstian. b. Kaliamma a/p Marathamuthu. c. Jonathan Hays a/l Joseph. d. Jeremiah Nathan a/l Joseph. e. Jasonhays a/l Joseph. [22] PW5 thereafter lodged a police report No. Chaah Report/001478/18 dated 27.10.2018 (“P14”) and a correction report Segamat Report/010712/18 dated 2.11.2018 (“P18”) of the arrest and seizure. [23] Next suspects who were arrested together with the case exhibits were handed by PW5 to the Investigating Officer, PW6. [24] PW6 confirmed receiving the case exhibits from PW5 based on PW5’s markings on them. [25] PW6 testimony is that upon receiving the case exhibits from PW5, he made his own markings witnessed by the 5 suspects. The markings made by PW5 on the case exhibits are as follows :- May 11, 2023 6 i. One red plastic bag containing dried leaves suspected Ganja (approximate weight 1 gram) marked as “B”. ii. One box marked as “C” containing 9 lumps of compressed dried leaves wrapped in aluminium foil marked as “C1 – C9” and 1 lump of compressed dried leaves wrapped in a transparent plastic suspected as Ganja (approximate weight 230 gram) marked as “C-10”. iii. One plastic marked as “D” containing 1 lump of compressed dried leaves suspected as Ganja (approximate weight 1000 gram) marked as “D-1”. Thereafter PW6 placed the suspected drugs in an envelope labelled “MH-1” and two boxes labelled as “MH-2” and “MH-3”. [26] On 29.10.2018, PW6 handed over “MH-1”, “MH-2” and “MH-3” containing the suspected drugs to PW4, the chemist and was given receipt of acknowledgement, No. Makmal: 18-Fr-J-06472 (P6). [27] Upon receiving the drugs, analysis by PW4 confirmed the drugs in the red plastic bag marked as B (envelope marked “MH-1”) to be 0.83 gram, 9 lumps of compressed dried leaves wrapped in aluminium foil marked as “C1–C9” to be 58.18 gram and 1 lump of compressed dried leaves wrapped in a transparent plastic marked as “C-10” to be 163.68 gram (box marked “MH-2”) totalling 221.68 gram and I lump of compressed dried leaves marked as D (box marked as“MH-3”) to be 1034.26 gram. May 11, 2023 7 [28] The drugs in “MH-1”, “MH-2” and “MH-3” were found to be Cannabis as defined in Section 2 DDA 1952. [29] Thereafter PW6 registered the drugs with the storekeeper (PW1) as recorded in the case exhibit register book (P5). [30] Prosecution only preferred one charge jointly against the accused persons for trafficking drugs in the black shoe box weighing 221.86 gram (box marked as “MH-2”) found at the back of the house. [31] Prosecution continued with the charge as preferred against the accused persons against the 2nd Accused although the 1st Accused died. Duty at the end of prosecution case [32] Section 180 of the Criminal Procedure Code (“CPC”) provides that :- “(1) when the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused;

if the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an acquittal;

if the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter his defence; May 11, 2023 8

for the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.” [33] In the case of Magendran Mohan v PP [2011] 1 CLJ 805, Federal Court held as follows :- “The test at the end of the prosecution’s case is “prima facie case” based on a maximum evaluation of evidence. The evidence has to be scrutinized properly and not perfunctorily, cursorily or superficially. If the evaluation of the evidence results in doubts in the prosecution’s case, then a prima facie case has not been made out. The defence ought not to be called merely to clear or clarify such doubts.” [34] In the oft-quoted case of PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457; [2005] 6 MLJ 393, Federal Court laid down the applicable guideline on whether a prima facie case has been made out :- “After the amendments to ss. 173(f) and 180 of the CPC, the statutory test has been altered. What is required of a subordinate court and the High Court under the amended sections is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or May 11, 2023 9 her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution’s evidence admits of two or more inferences, one of which is in the accused’s favour, then it is the duty of the court to draw the inference that is favourable to the accused.” [35] The Court should ask itself whether it was prepared to convict the accused in the event the accused is called upon to make his defence and elects to remain silent. If the answer is in the affirmative, then a prima facie case has been established and the defence should be called. On the other hand, if the Court answers the question in the negative, a prima facie case has not been made out and the accused is to be acquitted. [36] The Court therefore, has a duty at the end of the prosecution’s case to subject the prosecution’s evidence to a maximum evaluation to satisfy itself whether a prima facie case has been made out of the charge against the accused person so that the accused is to be called to answer and defend the charge. Ingredients of the offence [37] The prosecution in the present case bears the burden of proving the following ingredients of the charge :-

That the subject matter concerned is 221.86 grams of

(ii) That the 2nd Accused had possession of the drugs; May 11, 2023 10

(iii) That the 2nd Accused was trafficking the drugs;

(iv) That the accused persons did in furtherance of common intention, at the place, time and date stated in the charge against them were trafficking the drugs. Evaluation and findings at the end of the prosecution’s case The subject matter concerned is 221.86 grams of Cannabis [38] The chemist, PW4 gave oral evidence and in the form of a witness statement (PWS-4). He testified that on 29.10.2018 at 1636 hours he received a box labelled MH-2 (P7) from PW6 for which he had issued the receipt No.: 18-FR-J-06472 (P6). [39] PW1 then proceeded to analyse the contents of the box which are 9 compressed lumps of dried leaves wrapped in aluminium foil labelled as “C1 – C9” and 1 compressed lump of dried leaves in plastic labelled as C10. [40] C1 – C9 was found to contain 58.18 gram of Cannabis whereas C10 was found to contain 163.68 gram of Cannabis. [41] To determine the presence of drugs, PW4 conducted 4 tests i.e. Visual Examination to determine that there were no mixture of foreign substance in the plant, Microscopic Examination to determine the presence of Brown Globular Resin, Cystolith Hair, Simple Hair and Glandular Hair and to satisfy the plant has the characteristics of “genus Cannabis”, Duquenois-Levine (DL) Test to determine presence of active cannabinoid in Cannabis resin and May 11, 2023 11 lastly Thin Layer Chromatography (TLC) test to determine the presence of Tetrahdrocannabinol (THC), Cannabinol (CBN) dan Cannabidiol (CBD). [42] Upon completing his analysis, PW4 prepared a chemist report of his findings dated 03.02.2019 (P12) which was later handed over to PW6 together with the case exhibits on 04.02.2019. [43] Learned counsel for the accused did not challenge PW4 on either his qualification or experience. PW4’s evidence in his witness statement (PWS-4) as to his qualifications and experience was therefore left unchallenged. As such, I find PW4 is qualified to testify as an expert witness under Section 45 of the Evidence Act 1950. [44] Identity of the drugs analysed by PW4 was also not challenged by the 2nd Accused. Neither was there any challenge on the weight and type of drugs analysed by PW4. [45] As such, I find that the prosecution has established the first ingredient of the offence namely that the drugs seized is 221.86 grams Cannabis. Possession [46] As to what constitutes “possession”, Court refers to the decision of the Federal Court in PP v Abdul Rahman Akif [2007] 4 CLJ 337 wherein Arifin Zakaria FCJ (as he then was) referred to the judgement of Thompson J in the case Chan Pean Leon v. PP [1956] 1 LNS 17; [1956] 1 MLJ 237 defining the word “possession” as follows :- May 11, 2023 12 “... “possession” itself as regards the criminal law is described as follows in Stephen's Digest, 9th edn, p 304:- “A moveable thing is said to be in possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to do so in case of need.” To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also 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, in other words that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not May 11, 2023 13 give rise to the interference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shews such an intention. Or it must be clear that the circumstances in which it is found shews such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the court that the person who is physically in a position to deal with the thing as his own had the intention of doing so. 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] [47] The issue of knowledge necessary to establish possession was also considered by Arifin Zakaria FCJ (as he then was) in PP v. Abdul Rahman Akif (supra) as follows :- “[18] In Ramis a/l Muniandy v. Public Prosecutor [2001] 3 SLR 534, the Singapore Court of Appeal again propounded on the question of knowledge necessary to (establish) possession and at pg. 541 states: Knowledge of drugs May 11, 2023 14 The starting point in the consideration of this issue was that we had already concluded that the drugs was already on Ramis's motorcycle when he entered the vicinity and that he had physical control of the drugs. In the absence of any reasonable explanation by Ramis, these facts were sufficient to lead to a strong inference that Ramis knew that the bag found on his motorcycle contained drugs. In Tan Ah Tee, Wee Chong Jin CJ, delivering the judgment of the court, said (1978-1979) SLR 211 at pp 217_218: [1980] 1 MLJ 49 at p 52): Even if there were no statutory presumptions available to the prosecution, once the prosecution had proved the fact of physical control or possession of the plastic bag and the circumstances in which this was acquired by and remained with the second appellant, the trial judges would be justified in finding that she had possession of the contents of the plastic bag within the meaning of the Act unless she gave an explanation of the physical fact which the trial judges accepted or which raised a doubt in their minds that she had possession of the contents within the meaning of the Act. [emphasis added] May 11, 2023 15 [19] The issue of knowledge necessary to establish possession came to be considered by the English House of Lords in the case of Warner v. Metropolitan Police Commissioner [1968] 2 All ER 356, which was considered and relied upon by the Singapore Court of Appeal in Zulfikar bin Mustaffah v. Public Prosecutor. In Warner the following question was posed to their Lordships: Whether for the purpose of s 1 of the Drugs (Prevention of Misuse) Act 1964, a defendant is deemed to be in possession of a prohibited substance when to his knowledge he is in physical possession of the substance but is unaware of its true nature. [20] At p 367 Lord Reid addressed the issue as follows: The object of this legislation is to penalise possession of certain drugs. So, if mens rea has not been excluded what would be required would be the knowledge of the accused that he had prohibited drugs in his possession. It would be no defence, though it would be a mitigation, that he did not intend that they should be used improperly. And it is commonplace that, if the accused had a suspicion but deliberately shut his eyes, the court or jury is well entitled to hold him guilty. Further, it would be pedantic to hold that it must be shown that the accused knew precisely which drug he May 11, 2023 16 had in his possession. Ignorance of the law is no defence and in fact virtually everyone knows that there are prohibited drugs. So it would be quite sufficient to prove facts from which it could properly be inferred that the accused knew that he had a prohibited drug in his possession. That would not lead to an unreasonable result. [21] In the same case Lord Morris answered the question in (the) following manner: If there is assent to the control of a thing, either after having the means of knowledge of what the thing is or contains or being unmindful whether there are means of knowledge or not, then ordinarily there will be possession. If there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains then, ordinarily, I would suppose that there would not be possession. If, however, someone deliberately assumes control of some package or container, then I would think that he is in possession of it. If he deliberately so assumes control knowing that it has contents, he would also be in possession of the contents. I cannot think that it would be rational to hold that someone who is in possession of a box which he knows to have things in it is in possession of the box but not in possession of the things in it. If he had been misinformed or misled as to the nature May 11, 2023 17 of the contents, or if he had made a wrong surmise as to them, it seems to me that he would nevertheless be in possession of them.” [emphasis added] Please also see PP v Alfian [2011] 1 LNS 1731. [48] Further in order for a person to be guilty of an offence premised on possession, it must be possession that is actuated by a guilty knowledge and whether the accused person has guilty knowledge must relate to the attendant circumstances surrounding the whole case, and whether those circumstances justify a reasonable inference to be drawn therefrom, in the absence of an express admission on his part - see Modjtaba Hosseinzadeh Majid v. Public Prosecutor and another appeal [2015] 1 LNS 434; [2016] 2 MLJ 284. [49] The prosecution in the present case lead direct evidence through PW3 and PW5 who were part of the raiding team. Acting on information involving drug activities by one Joseph a/l Christian’s (1st Accused) family in the vicinity of Chaah, Segamat, PW5 assembled his team and went to the place in question at No. 5, Jalan Perwira 6, Taman Chaah Jaya, 85400 Segamat, Johor. [50] The evidence adduced by prosecution through PW5 is that during the raid, drugs were found on the floor of the master bedroom’s bathroom and water channel, inside a black shoe box at the back of the house and on the front passenger seat of the motor vehicle parked within the house compound. May 11, 2023 18 [51] According to PW5’s evidence, there were four occupants in the house at the time of the raid. PW5 also testified that Jasonhays who was detained shortly after the raid nearby at No. 18 Jalan Penghulu Yunus address is also an occupant of the house in which the raid took place. [52] To prove possession against the 2nd Accused, prosecution relies on PW3’s direct evidence. PW3 was assigned to keep a look out and guard at the back entrance of the house together with L/Kpl Badrul and Konstable Haminus. [53] The direct evidence by PW3 is that 20 minutes upon taking his position, he saw a lady opening the grill of the back entrance and placing a box beside the door. According to PW3, the whole incident lasted about one minute and thereafter the lady hurriedly closed the door and went back inside the house [54] The shoe box was tendered by the prosecution as exhibit P7 and the drugs found inside the box as exhibit P7 (a) (1-9) and P7a) (10). [55] However, Court finds PW3’s evidence during cross examination is not convincing whether he positively saw the 2nd Accused as the person who placed the box beside the door. This is evident in his cross examination as follows :- “S : Jadi soalan saya senang sahaja, masa orang letakkan kotak tersebut kamu tidak boleh memberi 100% kepastian ini adalah OKT tersebut masa kotak tersebut diletakkan? : 100% tak boleh tapi 80% 90% boleh. May 11, 2023 19 : Dari belakang? : Ya, dari belakang. : Dari belakang kamu lihat dia tidak tengok dia dari depan muka? : Nampak sipilah tapi nampak sepenuhnya taklah. Mustahil tak nampak sebab dia bukakan. : Boleh saya mengesahkan semasa kamu melihat orang yang meletakkan kotak ini, kamu tidak dapat 100% ianya adalah OKT? : Maksudnya pengecaman 100% tak dapatlah? : Ya? First time, bersetuju ya? : Ya.” [56] As such, prosecution should have called the other two raiding members who were on guard with PW3 at the back of the house to confirm whether it was indeed the 2nd Accused was the one who placed the box beside the back-entrance door. This the prosecution failed to do. [57] In Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113, it was held by the Federal Court :- “Notwithstanding that the prosecution has complete discretion as to the choice of witnesses to be called at the trial, it has a duty to call all necessary witnesses essential to the unfolding of the narrative of the prosecution’s case. In the present case, the question as to how the vehicle May 11, 2023 20 came to be in the custody and control of both accused still remained unanswered. The registered owner of the vehicle was the one that held the key to the unfolding of the events without which there were gaps in the prosecution’s case.” [58] Prosecution relies on PW3’s direct evidence to prove custody and control and knowledge of the drugs against the 2nd Accused. [59] Prosecution submits that the 2nd Accused’s conduct of throwing the box at the back of the house hurriedly and looking anxious fastens custody, control and knowledge of the drugs on her. [60] Having scrutinized PW3’s evidence, I do not find PW3 testified that he saw the 2nd Accused throwing a box at the back of the house hurriedly and looked anxious. [61] What PW3 testified was that he saw a lady opening the grill of the back entrance and placing a box beside the door. According to PW3, the whole incident lasted about one minute and thereafter the lady hurriedly closed the door and went back inside the house. [62] PW3 never said in his evidence that the 2nd Accused threw the box. It is PW5 who stated in his police report that the 2nd Accused threw the box at the back of the house. PW5’s statement cannot be true because it is PW3 who saw the 2nd Accused placing the box at the back of the house by the side of the door. May 11, 2023 21 [63] Prosecution also submits that the defence of innocent carrier is not available to the 2nd Accused based on the doctrine of wilful blindness. [64] The 2nd Accused is not the sole occupier of the house. Evidence lead by prosecution through PW5 is that the house which was raided is also occupied by her husband, Joseph a/l Christian, Jonathan Hays a/l Joseph (1st Accused), Jeremiah a/l Joseph and Jasonhays a/l Joseph. [65] As such, in total five persons including the 2nd Accused were occupying the house at No.50, Jalan Perwira 6 address. [66] The Defence case put to the prosecution’s witness is that the 2nd Accused does not live at No. 50, Jalan Perwira 6 address but only comes to visit her sons residing there and occasionally stays at this house. The Defence case is also the 2nd Accused resides at No. 18, Jalan Penghulu Yunus, 85400 Chaah, Johor as stated in her MyKad. [67] No evidence was led by the prosecution to prove that the 2nd Accused had care and management of the house at No. 50 Jalan Perwira 6. [68] Section 37 (b) Dangerous Drugs Act 1952 provides :- In all proceedings under this Act or any regulation made thereunder-

……. May 11, 2023 22

a person, until the contrary is proved, shall be deemed to be the occupier of any premises, if he has, or appears to have, the care or management of such premises; [69] In PP v Ihuoma Anthony Onyedikachi & Anor [2015] 1 LNS 830, Court of Appeal held as follows :- “On the evidence adduced by the prosecution, we agree with the trial judge that the prosecution has failed to establish a prima facie case against the respondents. We are of the view that the mere fact of occupation of the apartment or physical proximity to the drugs without more is insufficient to show that the respondents had custody or control, and hence mens rea possession, over the drugs.” [70] Whereas in PP v Paremeswaran a/l K. Muniandy [1993] 1 CLJ 520 Abdul Malik Ishak J (as he then was) decided as follows :- “It has been said time and again, that there must be sufficient exclusivity of possession to make a person an occupier. (see R v. Too [1976] 2 All ER 65, Low Geok v. PP [1982] 2 MLJ 346). Here the question to be asked is this: who was the occupier of the premises on which the drugs were found? In Bright v. Police [1972] NZLR 1916, an occupier was defined as a person who has the right to use the premises for such purposes as he wishes principally in the case of a dwelling house for the purpose of habitation.” May 11, 2023 23 [71] Further in PP v Aris Yunus [1989] 2 CLJ Rep 289, Shankar J (as he then was) held as follows :- “So what the prosecution was left to rely upon was the alleged proximity of the accused to the drugs in order to establish possession…………… As I have earlier indicated Rusly and Aris were jointly charged at first, but Rusly was acquitted without any evidence being offered against him. Aris now stands alone. In the last analysis the only material evidence against him is that he was seen walking towards the front of the house from the kitchen when the front door was opened in response to Insp. Mokhtar's knocking. Such evidence falls very far short of establishing that Aris was the occupier of the premises let alone being in possession of the drugs”. [72] It is an undisputed fact that the drugs were found in three different places during the raid i.e in the master bedroom’s bathroom, at the back of the house and inside the motor vehicle. [73] PW6 testified that his investigations revealed that the owner of the house No. 50 Jalan Perwira 6 is Jasonhays a/l Joseph. [74] In total there were 5 persons occupying the house including the 2nd Accused. They are the accused persons and their 3 sons. [75] There is no evidence lead by the prosecution as to whom does the drugs found in the bathroom and motor vehicle belongs to. May 11, 2023 24 [76] The accused persons two sons, Jonathan Hays and Jeremiah Nathan were also asked to sign the search list (P19) for the drugs found in the three places, motor vehicle registration number JRW 6364 and its remote that was seized. [77] Although the accused persons and their three sons were arrested together at the same time, no investigation were carried out to exclude the possibilities of the drugs belonging to them. Neither was there any investigation as to whom does the black shoe box belongs to. [78] According to PW6’s evidence, urine test was carried out on all the suspects arrested and only the 1st Accused tested positive. [79] PW6 testified that blood samples were taken from all the suspects for DNA testing on the case exhibits and it only linked to the 1st Accused. [80] PW6 also testified that the dusting and swabbing of the case exhibits did not reveal the 2nd Accused’s finger prints on each of the case exhibits. [81] I find based on the evidence before the Court, prosecution has failed to exclude possibilities of the drugs belonging to the other four occupants of the said house. [82] In light of the evidence of drugs found in two other different places i.e. in the bathroom and in the motor vehicle and there being four other occupants in the house, the 2nd Accused’s action in placing the shoe box at the back of the house by itself cannot be inferred as May 11, 2023 25 she having custody and control of the drugs inside the shoe box without any evidence linking her to the drugs found inside the house and motor vehicle. [83] The 2nd Accused’s action in placing the shoe box at the back of the house at best could only amount to her being in some momentary custody of the shoe box. [84] This inference is supported by the Defence case put at the prosecution’s stage that it was 1st Accused who woke the 2nd Accused from her sleep and asked her to place the black shoe box at the back of the house. [85] Further the Defence case is corroborated by the 2nd Accused’s caution statement tendered and marked as D23. According to the 2nd Accused in her caution statement, her husband (1st Accused) woke her up whilst she was asleep, went to the kitchen and brought a shoe box and asked her to assist him to place it behind the house. She also mentions in her statement that the shoe box belongs to the 1st Accused. [86] Based on my analysis of the evidence, I would disagree with the prosecution’s contention that the 2nd Accused was a carrier. Her act of placing the shoe box at the back of the house at the request of the husband would at best only amount to being in some momentary custody of the shoe box. [87] As the 2nd Accused was only having some momentary custody of the shoe box and following the instructions of her husband (1st Accused) to place the same at the back of the house, therefore May 11, 2023 26 ordinarily it cannot be inferred that she had custody and control of the drugs found in the shoe box. [88] Further, the 1st Accused tested positive to drugs and it is only his DNA was found linked to the drugs. [89] The 2nd Accused’s finger prints also was not found on the drugs. [90] As such I find prosecution has failed to prove the element of custody and control. [91] Next as to the 2nd Accused knowledge of the impugned drugs in the shoe box, it can be proven by inferences from the surrounding circumstances. [92] Prosecution relies on the 2nd Accused’s conduct of opening the back-entrance door and placing the shoe box beside the back door at 1 a.m. in the morning and thereafter closing the door hurriedly and getting back inside the house to prove knowledge. [93] Prosecution further submits that it is strange for the 2nd Accused to merely follow her husband’s instructions during the incident upon just being woken up at 1 a.m. in the morning. [94] I am not able to make any inference that the 2nd Accused had knowledge of the drugs inside the shoe box based on these submissions alone without there being any evidence linking the 2nd Accused to the drugs found inside the house and motor vehicle. May 11, 2023 27 [95] As I have said earlier, no evidence was lead to prove that the 2nd Accused had care and management of the house. [96] Further drugs were found in two other different places during the raid i.e in the bathroom and motor vehicle and there were four other occupants in the house. There is no evidence as to whom these drugs belong to. Neither is there any evidence as to whom the shoe box belongs to. [97] In addition to this, PW3’s evidence is that the whole incident of the 2nd Accused placing the shoe box at the back of the house lasted only about 1 minute. PW3 did not see that the 2nd Accused opened the box to look at the contents. Neither did PW3 see the 2nd Accused acting in an anxious manner when she opened the back door and placed the box beside the door. What PW3 saw was that she hurriedly closed the door after placing the box and went inside. [98] The 2nd Accused’s act of closing the door hurriedly and getting back inside the house by itself cannot be inferred as having guilty knowledge of knowing the shoe box contains drugs without any evidence linking her to the drugs found inside the house and motor vehicle. [99] The photographs of the back of the house taken at night tendered as P11 (a-c) shows that the place is quiet and dark. Since the 2nd Accused was seen by PW3 placing the box at the back of the house around 1 a.m. in the morning, one would ordinarily expect the 2nd Accused’s normal reaction is to close the back entrance hurriedly and get back inside the house for safety reasons given the place is dark and lonely. May 11, 2023 28 [100] Further, the 2nd Accused was in all likelihood carrying out her husband instructions dutifully as a wife to place the box at the back of the house without any questioning. [101] In her caution statement (D23), the 2nd Accused stated that she did not know the contents inside the box and did not open the box. [102] Therefore, based on these facts, it cannot be inferred that the 2nd Accused had knowledge of the contents of the said shoe box. [103] As such the facts in this case does not warrant the application of the doctrine of wilful blindness to the 2nd Accused. Please see Maria Elvira Pinto Exposto v PP [2020] 5 CLJ1. [104] In Warner v Metropolitian Police Comissioner [1968] 2 All ER 356, House of Lords speaking through by Lord Morris had this say in respect of persons having momentary custody :- “If there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains then, ordinarily, I would suppose that there would not be possession” [emphasis added] [105] In light of the prosecution having failed to prove custody, control and knowledge on the part of the 2nd Accused, I find that the prosecution has failed to prove beyond reasonable doubt possession against the 2nd Accused. [106] Therefore, the presumption of trafficking pursuant to Section 37 (da) (vi) of the Act does not arise. May 11, 2023 29 1st Accused’s caution statement [107] The Defence also tendered the 1st Accused caution statement pursuant to Section 32(1) (i) Evidence Act 1950. It was objected to by the prosecution on the ground the maker, the 1st Accused is dead and therefore he cannot be cross examined. Upon hearing arguments, I made a ruling to admit the 1st Accused caution statement and marked it as D12. [108] The 1st Accused’s caution statement is a statement given in the course of police investigation and can be admitted pursuant to Section 32 (1) (i) of the Evidence Act 1950 upon the requirements of this section fulfilled. This section provides :- “(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an offence under or by virtue of any written law; and” [109] In PP v Lin Lian Chen [1992] 1 CLJ Rep 285, Supreme Court held as follows :- May 11, 2023 30 “The decision of the trial Judge allowing the defence to introduce the exculpatory statement of the respondent through cross-examination of the investigating officer during the case for prosecution, was correct. The defence was entitled to elicit by cross-examination of prosecution witnesses, oral evidence or documentary evidence in order to destroy the case for the prosecution or to support its own case, subject to the principle of crown privilege.” [110] Based on Supreme Court’s decision in Lin Lian Chen, the 1st Accused’s caution statement was admitted because it is a police document and can be introduced by the defence during the prosecution’s case through the investigation officer since the requirement in Section 32 (1) (i) Evidence Act 1950 was satisfied with the production of the 1st Accused’s death certificate. [111] However, having admitted the 1st Accused’s caution statement, Court is mindful of its little probative value since the 1st Accused is dead and cannot be cross examined and is not an uninterested witness. [112] In this respect, I am guided and reminded by the decision in PP v Mohd. Jamil B. Yahya & Anor [1994] 1 CLJ 200 K.C. Vohrah J (as he then was) held :- “Parliament, while allowing for the admission under s. 32 of such statement surely requires judicial safeguards to be considered in regard to the weight and credit to be placed on such a statement by a declarant who cannot be considered as May 11, 2023 31 a disinterested witness and who cannot be subject to cross examination. In my view the weight and degree of credit to be attached to a statement by a declarant under paragraph (i) who is patently not disinterested must be examined with the greatest of caution…” Please also see PP v Tukiman Demin [2008] 8 CLJ 856. [113] The learned Deputy Public Prosecutor submitted the case of PP v Mohd Nor Shabani Sherrif & 1 Anor [2017] 1 LNS 2169. In that case, the prosecution sought to adduce caution statement of a co-accused who had passed away and it was not allowed. In arriving at the decision, His Lordship Azmi Abdullah JC (as he then was) followed the decision of the Court of Appeal in Ganesh a/l Arunasalam lwn. Pendakwa Raya [2017] 1 LNS 1279; [2017] 6 MLJ 42 wherein it was decided as follows :- “[15] Seterusnya Hakim bicara jelas telah terkhilaf apabila menerima fakta daripada Percakapan Saksi “Rashid” di bawah seksyen 112 Kanun Acara Jenayah untuk menolak kemungkinan penglibatan Rashid. Adalah menjadi undang-undang mantap keterangan daripada percakapan tersebut, tanpa saksi disoalbalas tidak membawa nilai probatif. [16] Pada pemerhatian kami, Hakim bicara telah membuat dapatan fakta dengan tidak berlandaskan atas keterangan yang telah dibuktikan (proved facts). Ini May 11, 2023 32 adalah “misdirection” yang serius dan menyebabkan “case for prosecution has been compromised”. [emphasis added] [114] However, in our present case, it cannot be said that 1st Accused’s caution statement has no probative value at all. This is because the facts relating to the raid and where the drugs were found as stated by the 1st Accused in his caution statement corroborates the narrative of the prosecution on how the raid took place and leading to the discovery of the drugs in three different places. These facts were proven in evidence lead by the prosecution through PW3 and PW5. [115] The 1st Accused also stated in his caution statement that he has been involved with drugs for more than two years. He further stated that and the drugs found inside the box belongs to him and before police found the box, he took it from inside the washing machine and gave it to the 2nd Accused and asked her to place it at the back of the house. He also said that he did not see whether the 2nd Accused opened the box. Lastly, the 2nd Accused said that all the drugs belonged to him. [116] The 1st Accused caution statement becomes relevant in light of the proven facts in PW6’s evidence that the 1st Accused tested positive to the urine test and the DNA test only linked the 1st Accused to the drugs. [117] Therefore the 1st Accused’s caution statement fortifies the 2nd Accused defence put at the prosecution stage that she was only May 11, 2023 33 being in momentary custody of the black shoe box without having custody, control and knowledge. [118] In Ahmad Mukamal Abdul Wahab & Ors v PP [2013] 4 CLJ, Court of Appeal held that caution statement of an accused person which exonerates a co-accused ought to be considered by the Court during maximum evaluation of the entire prosecution evidence at the end of the prosecution stage. His Lordship Hamid Sultan Abu Backer JCA held :- “(2) The trial judge failed to consider exh. D1 which would exonerate liability. There was nothing inherently incredible about the second appellant's story which lacked elements of the offence, in particular, custody, control and knowledge. Had the trial judge applied maximum evaluation test at the prosecution stage in respect of the elements of the offence, the defence ought not to have been called for the second appellant.” Common Intention [119] Prosecution invoked common intention under section 34 of the Penal Code which makes a person liable for an offence carried out by another with whom he shared common intention to commit the offence. [120] The existence of common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. Common intention presupposes prior concert or a meeting of the minds before the commission of the offence. Such May 11, 2023 34 intention may have developed from pre-planning prior to the offence, or in the course of commission of the offence, or at the spur of the moment (see: Sabarudin Non v. PP & Other Appeals [2005] 1 CLJ 466; Namasiyiam Doraisamy v. Public Prosecutor & Other Cases [1987] CLJ Rep 241). [121] As I have found that prosecution has failed to prove the 2nd Accused having custody, control and knowledge of the drugs found in the shoe box and the 2nd Accused being only in some momentary custody of the box, therefore I do not find any evidence of pre-planning or meeting of the minds, either direct or circumstantial in this case. [122] Further statements made by both accused persons in their caution statement (D12 & D23) exonerates the 2nd Accused from any links to the drugs found during the raid. [123] Therefore, there was no common intention established by the prosecution in respect of the charge of trafficking in the cannabis as stated in the charge.

[124] Upon maximum evaluation of the prosecution's evidence to satisfy whether a prima facie case has been made out of the charge against the 2nd Accused so that the 2nd Accused is to be called to answer and defend the charge as provided in guidelines enunciated by the Federal Court in the case of PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457; [2005] 6 MLJ 393, Balachandran v. PP [2005] 1 CLJ 85 and Looi Kow Chai & Anor v. Public Prosecutor [2003] May 11, 2023 35 1 CLJ 734; [2003] 2 MLJ 65, this Court finds that the prosecution has failed to establish a prima facie case. [125] I had asked myself of the question “If I decide to call upon the 2nd Accused to enter her defence and she elects to remain silent, am I prepared to convict her on the totality of the evidence contained the prosecution case?” and the answer was a clear “No”. The prosecution has not met their burden of proof. [126] In the upshot I find that the prosecution has failed to establish a prima facie case against the 2nd Accused. I therefore discharged and acquitted the 2nd Accused of the charge preferred against her without calling for her defence. Dated this 11th May 2023 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Counsels: For the Accused : Bernard George A/L George Mathews For the Respondent : Putera Amirool Faez Bin Suhasi May 11, 2023 36 Solicitors: For the Accused Messrs Tay, Bernard & Cheong Advocates & Solicitors No. 19A, Jalan Harimau Tarum Century Garden 80250 Johor Johor [Ref. No. : TBC/CRIMINAL(1)/3091/20/BG/m] For the Respondent Pejabat Timbalan Pendakwa Raya Mezzanine Floor No. 16, Jalan Petrie Muar Trade Centre 84000 Muar Johor. Hearing Date : 8th October 2020, 25th October 2021, 28th October 2021, 12th October 2022, 13th October 2022, 25th October 2022, 8th November 2022, 9th November 2022, 5th December 2022, 2nd January 2023, 26th February 2023, 29th March 2023 Decision Date : 11th May 2023