telah memeriksa sampul barang kes “AR” tersebut berserta borang POL 31 dan mendapati dalam sampul “AR” terdapat satu peket plastik dengan tandaan “AR1a” berisi satu lagi peket plastik yang mengandungi hablur jernih. [32] During the physical identification of the exhibits, PW1 had identified all the received items as stated in Form POL 31 (P7) and she also identified a transparent plastic package with a signature on it (P17). [33] It is evident that the transparent plastic package (P17) is not listed in POL 31 (P7), indicating that PW3 did not hand over the said transparent plastic package (P17) to PW1. The court wonders where P17, which bears a signature, originated from. S/N udL5eRc3Bk6LGstE0qO4jg Page 10 of 23 [34] Based on the PW1 written statement in paragraph 10 that “telah memeriksa sampul barang kes “AR”…..” this court is left wondering as to when PW1 examined the content of “sampul barang kes "AR". If the examination was conducted as soon as she received the exhibit from PW3, then she could have informed PW3 about the plastic package "AR1a" berisi satu lagi peket plastik mengandungi hablur jernih. [35] During PW2's identification of the exhibits, he identified all the exhibits. However, when he saw P17, he couldn't identify it as one of the seized items. He was questioned about the signature present on P17, he said “bukan tandatangan saya, saya rasa tandatangan oleh Pegawai penyiasat”. Meanwhile, SP3 in his evidence before this court, when referring to P17, he said "Saya tak tahu” (“I don't know”). [36] In this case the quality of evidence was dependent on the credibility of the witnesses. This Court opined that PW3's admission of not having knowledge about P17 had adversely affected his credibility as an investigating officer. His answer “saya tak tahu” clearly indicates that he did not carry out his investigative duties thoroughly and effectively. [37] Upon examining the photos of the seized items [P13 (1 – 5)], this court found that the plastic packet labeled "Guanyinwang" (exhibit P21) had been opened, and the transparent plastic packet (exhibit P16) had been taken out from P21. [38] There is no testimony from PW2 and PW3 stating that they opened P16 and removed any transparent plastic from within P16 and signed any transparent plastic found within P16. S/N udL5eRc3Bk6LGstE0qO4jg Page 11 of 23 [39] Therefore, who is the individual that signed P17? PW2 and PW3 have clearly stated in their testimonies that they have no knowledge of the plastic package (P17). [40] This court accepts PW1's testimony that the crystals substances were contained in “satu lagi peket plastik” as she stated “terdapat satu peket plastik dengan tandaan “AR1a” berisi satu lagi peket plastik yang mengandungi hablur jernih”. [41] However, since P17 was unidentified by PW2 and PW3 and bears a mysterious signature, this indicates that there was someone else who handled the Exhibits before it was handed over to PW1. [42] This court found that Exhibit P17 was never handed over by PW2 to PW3. Exhibit P17 was also never handed over by PW3 to PW1. Hence, doubt arises as to whether PW1 analyzed the substances/exhibit seized by PW2. [43] The issue of P17 has not been resolved by the prosecution. How this plastic came to be is questionable. Since there is no explanation provided, it raises a reasonable doubt of whether the drugs analyzed by PW1 are indeed the same drugs seized from the accused, or they were different drugs altogether. This matter is crucial to ensure the integrity of the chain of evidence and to establish a solid connection between the accused and the charges. [44] In a situation where there exists a discrepancy between the handed-over and received items, the court is of the opinion that doubt arises concerning the identity of the exhibit in question. S/N udL5eRc3Bk6LGstE0qO4jg Page 12 of 23 [45] The learned DPP in her written submission in paragraph 32 stated as follows: “Berdasarkan keterangan SP2, beliau telah menyatakan bahawa OKT sendiri yang telah menyerahkan P20 tersebut kepada SP2. Dalam P20 tersebut mengandungi eksibit P21 dan di dalamnya mengandungi P17 dan di dalam P16 pula mengandungi bahan disyaki dadah itu. Barang kes iaitu P16 telah disahkan sebagai Methamphetamine seberat 678.7 gram sebagaimana dalam laporan kimia SP1 (merujuk eksibit P9).”. [46] This court finds that the prosecution's argument as mentioned above regarding P16 and P17 is inaccurate. According to the court's markings, P16 is a transparent plastic packet marked "F1a" and "AR1a," by PW2 and PW3, whereas the plastic packet from the Malaysian Chemistry Department and the remaining substance (Methamphetamine) that has been analyzed is marked as exhibit P18. [47] The testimony of PW2 regarding P17 is as follows: Question : Selain itu terdapat apa-apa lagi tandaan? Answer : ID 17, bertandatangan. Question : Tandatangan siapa tu ASP? Adakah itu tandatangan kamu? Answer : Bukan tandatangan saya Yang Arif. S/N udL5eRc3Bk6LGstE0qO4jg Page 13 of 23 [48] The testimony of PW3 regarding P17 is as follows: Question : Seterusnya? Answer : Juga terdapat satu plastik kosong yang mana plastik ini saya tidak pasti Yang Arif kerana tidak ada tandatangan saya. [49] I find that there is lacking in explanation as to exhibit P17 by both witnesses (PW2 and PW3). None was given, both of them merely have no idea as to the existence of P17. I strongly believe that the identity of exhibits was tempered with, therefore an explanation of the same is much required. [50] While I am inclined to consider the possibility that it might be an error on the side of PW2 and PW3, as they are not stated in P4, P5 and P7 about “satu lagi peket plastik yang mengandungi hablur”. [51] Regrettably, this stance does not align with the well-established legal principles that this court is obliged to uphold. The presumption of innocence must favour the accused, and any favourable inferences, substantial contradictions, discrepancies, or omissions should be granted to them, regardless of their perceived insignificance. (See the case of Ooi Choo Hock v. PP [2014] 2 MLJ 200) [52] I also wish to quote the observation of Judge Akhtar Tahir in the case of PP vs Bayati Haider (2014) 2 CLJ 915; “[26] In this case the unsatisfactory nature of the oral evidence has cast a long shadow on the identity of the drugs tendered in court. The importance of the identity of the drugs tendered as evidence in court in a drug trafficking trial cannot be underestimated. This has been S/N udL5eRc3Bk6LGstE0qO4jg Page 14 of 23 emphasized in many authorities. I will just refer to one, the Supreme Court case of Teoh Hoe Chye v. PP & Another Case [1987] 1 CLJ 471; [1987] CLJ (Rep) 386; [1987] 1 MLJ 220.”. [53] The Court of Appeal in Gunalan Ramachandaran & Ors v. PP [2004] 4 CLJ 551 CA; [2004] 4 MLJ 489; [2004] 2 MLRA 180; [2004] 6 AMR 189, made the following remarks: “First, by way of a general observation, I am of the view that, in a drug trafficking case what is important is that it must be proved that it is the substance that was recovered that was sent to the chemist for analysis and it is that same substance that is found to be heroin or cannabis etc. and it is in respect of that substance that an accused is charged with trafficking. So, the chain of evidence is more important for the period from the time of recovery until the completion of the analysis by the chemist. Even then it does not necessarily mean that if the exhibit is passed from one person to another, every one of them must be called to give evidence of the handing over from one person to another and if there is a break, even for one day, the case falls. There should be no confusion between what has to be proved and the method of proving it. What has to be proved is that it is the substance that was recovered that was analysed by the chemist and found to be heroin, cannabis etc., and it is for the trafficking of that same substance that the accused is charged with.”. [54] Also in the case of Lee Chee Meng v. PP [1992] 1 CLJ 345 it was held that: “Where there is a serious doubt as to the identity of the exhibit as clearly is the case here it cannot be said that the prosecution has established a prima facie case under the charge [vide Shamsuddin S/N udL5eRc3Bk6LGstE0qO4jg Page 15 of 23 bin Hassan & Anor v. PP [1991] 1 CLJ (Rep) 428, Abdullah bin Yaacob v. PP [1991] 1 CLJ Rep 5, Abdul Jalil bin Abdul Satar v. PP [1991] 1 CLJ (Rep) 1.]” [55] Based on the above evaluation on the oral and documentary evidence of the witnesses, this court has serious doubt as to the identity of the drugs seized with the one sent to the chemist for analysis, and the prosecution had failed to sufficiently establish on prima facie basis that the accused was in possession of the drugs and had knowledge of the same to have custody and control over it. Possession [56] The principle of possession is related to the concept of control, custody, and knowledge as defined in the famous case of Chan Pean Leon v. PP [1956] 1 LNS 17, where Justice Thompson stated the following on page 237: “In my experience there is no question which Magistrates find more difficult to deal with than this question of what amounts to "possession" for the purposes of the criminal law. Much of this difficulty arises from a failure to appreciate that in reality there are two separate questions involved. The first is whether the accused party was in possession of the article in question and the second by reason of the application of the maxim actus non facit reum nisi mens sit rea is whether he had knowledge of the nature of the thing possessed”. S/N udL5eRc3Bk6LGstE0qO4jg Page 16 of 23 [57] In the case of Leow Nghee Lim v. Red [1956] 1 MLJ, the meaning of “custody”, “control” and “possession”, were elaborated as follows: “Custody means having care or guardianship; goods in custody are in the care of the custodian and, by necessary implication, he is taking care of them on behalf of someone else. You cannot take care of goods unless you know where they are and have the means of exercising control over them. Custody therefore implies knowledge of the existence and whereabouts of the goods and power of control over them, not amounting to possession. Control must be proved as a fact and it must arise from the relation of the person to the goods, irrespective of whether they are contraband. Probably the most helpful definition of possession is:- “The relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing admits, to the exclusion of other persons.” This definition does not express, but it does imply that the meaning of the word includes some element of knowledge. A man must know of the existence of a chattel and have some idea of its whereabouts before he can exercise any control over it. The word possession therefore implies some knowledge but not necessarily full or exact knowledge.” [58] On the element of knowledge, in PP v. Badrusham bin Baharom [1987] 1 LNS 72, Lim Beng Choon J held: “I believe it is well settled at least by our court that to establish possession by an accused person of any dangerous drugs or to impute to him possession of the said drugs, it must first be shown S/N udL5eRc3Bk6LGstE0qO4jg Page 17 of 23 that he had knowledge of the drugs which were found to be in his possession.” [59] In the case of Parlan bin Dadeh v. Public Prosecutor [2009] 1 CLJ 717, the Federal Court held that knowledge of the impugned drugs is to be inferred. “Proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can be drawn varies from case to case. It would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused had the necessary knowledge.” [60] The prosecution relies on the testimony of PW2 to prove that the accused had control, custody and knowledge of the said drugs. According to PW2's testimony, when the accused was apprehended, he attempted to escape, leading to a struggle between the accused and the police officer, resulting to the arrest of the accused. [61] Subsequently, the accused handed over a black plastic bag (P20) to PW2 using his right hand. PW2 examined the contents of P20 and found within it a plastic package labeled "GUANYINWANG" (P21), which contained a transparent plastic package (P16) containing suspected crystal methamphetamine. [62] Based on the evidence presented by the prosecution witnesses, the prosecution argues that the accused did indeed possess the drugs directly. S/N udL5eRc3Bk6LGstE0qO4jg Page 18 of 23 [63] I reiterate as what was said in Chan Pean Leon (supra) that to be in possession of the said drugs, the accused must have the power to deal with them as the owner to the exclusion of all other persons. Both physical and mental elements must be present and the intention of dealing with it as if it belonged to them. [64] The court has examined the evidence of PW2, that during examination in chief, PW2 stated that the accused was apprehended while standing on the side of Sempilai road. However, during cross-examination, PW2 agreed that the accused was arrested while he was stopping his motorcycle and about to getting off from it. [65] Furthermore, during re-examination, PW2 confirmed that the accused had arrived on his motorcycle, and after he getting off the motorcycle, PW2 immediately apprehended the accused. [66] The defense has also challenged PW2's testimony by suggesting that the accused was handcuffed while still lying on the road surface and that the black plastic bag was seized by PW2 from the accused's motorcycle basket. The accused did not attempt to flee or hand over the black plastic bag to the police officer. [67] This suggestion was not agreed upon by PW2. He maintained his statement that the accused was apprehended while standing on the side of Sempilai road, and the accused attempted to escape, resulting in a struggle that tore the accused's clothing and the accused himself handed over the black plastic bag containing drugs to him. S/N udL5eRc3Bk6LGstE0qO4jg Page 19 of 23 [68] Based on maximum evaluation to PW2's testimony, this Court finds inconsistencies regarding the process of arrest and the seizure of the black bag. PW2 provided two versions of how the accused was arrested. The first version indicates that the accused was apprehended while standing by the roadside. The second version suggests that the accused was apprehended when he got off the motorcycle. [69] It is not in doubt that there was a struggle between the accused and the raiding team as it was acknowledged by PW2 during cross-examination. This Court finds it is impossible for the accused to have handed over any items, (in this case the black plastic bag containing drugs) to PW2 as during the arrest, a struggle occurred between the accused and the raiding team. [70] The struggles was quite intense or rough, leading to significant tearing of the accused's clothing, how could the accused have handed over the black bag to PW2 during such a struggle? This court finds it unreasonable for the accused to handover something to PW2 under such tumultuous circumstances. [71] This Court finds that PW2's testimony during examination in chief does not accurately depict the actual circumstances of the arrest of the accused. His testimony that there was a minor struggle is inconsistent with the condition of the accused's clothes, which he acknowledged were severely torn due to the struggle. Logically, a severe struggle could indeed result in torn clothing. S/N udL5eRc3Bk6LGstE0qO4jg Page 20 of 23 [72] Considering all the evidence adduced, I conclude that the evidence presented by the prosecution merely shows the confiscation of the drugs, and it lacks adequacy in proving the possession of the drugs. The accused's knowledge of the seized drugs [73] The Prosecution argues that the accused attempted to flee and the act of handing over the black plastic bag to PW2 can be taken into consideration under section 8 of the Evidence Act 1950, indicates that the accused had direct control and possession, as well as knowledge of the item he handed over, and he is not an innocent carrier. [74] The prosecution further argues that the accused’s action of concealing drugs within Exhibits P20 and P21 demonstrates an intention to hide the drugs from detection by others. Based on these circumstances, it can be inferred that the accused had custody, control, possession and knowledge of the said drugs. [75] After thoroughly examining the testimonies of PW2 and PW3, this Court disagrees with the prosecution's arguments as stated above. This Court is of the opinion that the actions of the accused attempting to flee were spontaneous actions for a person being apprehended by a group of unknown personnel as was decided in the case of Abdullah Zawawi bin Yusoff vs PP (1993) 4 CLJ 1. [76] This court finds that the entirety of the evidence substantiates the prosecution's inability to demonstrate that the accused had custody, control, and possession of the impugned drugs, or the accused had knowledge of them. S/N udL5eRc3Bk6LGstE0qO4jg Page 21 of 23 Trafficking [77] For the element of trafficking, the Prosecution relies on the statutory presumption under section 37(da)(xvi) of the Dangerous Drugs Act 1952, which asserts that the accused was involved in the trafficking of the drugs. [78] The Prosecution argues that based on the quantity of the drug found, it was not meant for the accused's personal use, and the defense never raised the issue that the accused was drug dependent. Hence, the inference that can be drawn is that the accused possessed the drug for the purpose of trafficking. [79] However, since the element of possession has not been proven, the Prosecution is not entitled to rely on the presumption for trafficking. Without possession, drug trafficking cannot exist. One cannot trafficking illicit substances without owning them. The essence of possession must be established first. Consequently, the third element has not been proven. Conclusion [80] Based on all the available evidence, I was convinced that the prosecution had raised sufficient reasonable doubt concerning the identity of the drugs, the integrity of the evidence chain, and the knowledge and possession of 678.7 grams of Methamphetamine by the Accused. S/N udL5eRc3Bk6LGstE0qO4jg Page 22 of 23 [81] Given these circumstances and considering all the evidence presented at the end of the prosecution's case, the Court concluded that the prosecution had not successfully established a prima facie case. [82] Therefore, if left unchallenged, it wouldn't justify the conviction of the Accused. Consequently, the Court declared the Accused not guilty, acquitted, and discharged him without calling him to enter present his defence. Dated: 28th August, 2023 …………………………… (FATHIYAH BINTI IDRIS) Judicial Commissioner High Court of Malaya Butterworth, Penang S/N udL5eRc3Bk6LGstE0qO4jg Page 23 of 23 PARTIES: For the Prosecution: Kirubini a/p Subramaniam Deputy Public Prosecutor Penang State Legal Advisors For the Accused: Mima Falaq bin Mohd Amin Firdaus Advocates & Solicitors Messrs Mima Falaq Donna & Co. S/N udL5eRc3Bk6LGstE0qO4jg