[Pendakwa Raya] v MOHD KHUZAIMI BIN AHMAD (JB-45A-8-12/2020)

The Accused was charged with trafficking 92.25 grams of Methamphetamine.

The charge against him read as follows: - October 27, 2024 2 “PERTUDUHAN “Bahawa kamu pada 11 Mei 2020 jam lebih kurang 10.30 pagi, bertempat di sebuah rumah di alamat No. Lot 4840B, Kg Hujung Tambak, Grisek, di dalam Daerah Tangkak, di dalam Negeri Johor Darul Ta’zim, telah didapati memperedarkan dadah berbahaya iaitu 92.25 gram Methamphetamine. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”

The prosecution called the following 6 witnesses: -

PW1 - the Raiding Officer / Complainant.

(ii) PW2 - a chemist with “Jabatan Kimia Malaysia” regarding DNA.

(iii) PW3 - the Forensic Investigating Officer.

(iv) PW4 - a chemist with “Jabatan Kimia Malaysia” regarding the drugs.

PW5 - the accused’s wife.

(vi) PW6 - the Investigating Officer. [4] On 11.5.2020 at about 10.30 am, Inspector Md. Harahap bin Shahran headed a team of nine officers and raided a house known as No. Lot 4840B, Kampung Hujung Tambak, Gresik, Tangkak, Johor. October 27, 2024 3 [5] They arrived at the scene in three vehicles and parked it 25 meters away from the house. Upon arrival at the said location around 9.50 am, PW1 gathered his officers and briefed them on their duties and roles and their plans to ensure the operation was successful. [6] Thereafter the team members took their respective positions to make observations. After the observation, PW1 together with his two team members headed towards the front of the house. [7] PW1 opened the door and entered the house. He saw a Malay man seated on the mattress in the room towards the left side of the house from the entrance. PW1 then introduced himself by showing his authority card. This Malay man was later identified as the accused. [8] PW1 then examined the accused identity card and found him to be worried. [9] A body search was conducted on the accused by PW1 witnessed by the other officers and he found nothing. [10] PW1 then inspected the room where the accused was detained and found one blue plastic packet with the words POLIKLINIK AZZU (P15) written on it on a purple plastic rack. Upon examining inside this plastic packet, PW1 found a transparent plastic bottle with a red cap (P16) containing one transparent plastic packet tied with a rubber band. The contents inside this plastic packet were suspected to be drugs type syabu with an approximate weight of 125.71 grams (P38). These drugs were found hidden inside the blue plastic packet (P15). October 27, 2024 4 [11] The accused looked worried when the drugs were found and was only staring at the floor. [12] Further inspection at the living hall, kitchen and the room on the right side of the house did not find any drugs. [13] After that PW1 inspected the back of the house witnessed by the accused and his team members where he found a wrapped plastic packet with the words “ECONSAVE” (P18) underneath a heap of used things placed in a blue plastic container (P17). Upon inspecting this plastic packet (P18), PW1 found drugs suspected to be syabu in four transparent plastic packets, P41 (A-D) inside a plastic bottle with a yellow cap (P19) and a weighing machine brand “COMANCHE” (P20). These case exhibits were found underneath the used things. [14] PW1 also seized RM700.00 cash and a dark blue OPPO brand handphone from the accused. PW1 also arrested the accused. [15] The case exhibits seized by PW1 and the accused were brought to IPD Tangkak for further investigations. [16] PW1 thereafter attended to the documentation in respect of the seizure and arrest. He then lodged a police report Gresik/465/20 (P6). [17] After that PW1 handed over the accused, the case exhibits, the search list, the acknowledgement form for the case exhibits and his police report to the Investigating Officer (PW6) at his office. October 27, 2024 5 [18] No further actions were taken in respect of the drugs suspected to be syabu found at the back of the house. [19] The case exhibits suspected to be drugs were sent to Jabatan Kimia for analysis. [20] The chemist (PW4) confirmed that the case exhibits seized were 92.25 grams of Methamphetamine listed in the First Schedule of the Dangerous Drugs Act of 1952. THE COURT’S DUTY AT THE CLOSE OF THE PROSECUTION’S CASE [21] At the close of the prosecution’s case, the Court must subject the evidence to maximum evaluation to determine whether a prima facie case has been made out against the accused which requires him to enter his defence. See PP v. Mohd Radzi Abu Bakar [2006] 1 457 and Balachandran v. PP [2005] 1 CLJ 85. [22] A prima facie case can be said to be established where the prosecution had adduced such evidence of the essential elements of the charge as are sufficient to convict the accused if he were to keep silent and the evidence is left unexplained or unrebutted. [23] In Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734; [2003] 2 MLJ 65, the Court of Appeal formulated the test thus: - “It therefore follows that there is only one exercise that a judge sitting alone under s 180 of the CPC has to undertake at the close of the prosecution case. He must subject the prosecution evidence to maximum evaluation and to ask himself the question: if I decide to call October 27, 2024 6 upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative then no prima facie case has been made out and the accused would be entitled to an acquittal.” EVALUATION OF THE PROSECUTION’S CASE [24] To make its case against the accused, the prosecution had to establish: -

The identity and weight of the drugs, viz, 92.25 grams of

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

(iii) The accused was trafficking the drugs on the date and at the time and place as particularised in the charge. Identity and weight of drugs [25] Upon completion of his analysis, PW4 then prepared a chemist report on her findings dated 11.06.2020 (P33) which was later handed to PW6 together with the case exhibits on 12.08.2020. [26] Learned counsel for the accused did not challenge PW4 on his qualifications or experience. PW4’s evidence in her witness statement (PWS-4) as to his qualifications and experience was therefore left unchallenged. As such, it is my finding that PW4 is qualified to testify as an expert witness under Section 45 of the Evidence Act, of 1950. October 27, 2024 7 [27] The identity and type of the drugs analysed by PW4 were also not challenged by the accused. [28] Neither was there any real challenge to the weight of the drugs. [29] The chemist report reveals that upon analysis, PW4 found the plastic packet tied with the rubber band and marked as “Z1A” to contain clear crystal substances weighing 92.25 grams of Methamphetamine which are dangerous drugs listed in the First Schedule of the Dangerous Drugs Act of 1952. [30] The only serious challenge mounted by the accused was concerning the failure of the prosecution to call PW4’s assistant, Puan Wardah Binti Mohd Nasir (“Wardah”), who had operated the GC-MS and GC-FID machines during the analysis by PW4. [31] According to learned counsel for the accused, therefore PW4 was not the chemist who carried out the test using the GC-MS and GC-FID machines. [32] Learned counsel for the accused further submits that there is no positive averment from PW4 that he had carried out both these tests and instead, PW4 admitted that he assisted Wardah when the tests were carried out. [33] Hence, learned counsel for the accused submits that Wardah is a material witness who needs to be called to prove the type and the weight of drugs in this case. October 27, 2024 8 [34] He further submits that Wardah must be called to testify because PW4’s evidence is based on the report prepared by Wardah. Therefore PW4’s evidence is hearsay. [35] In addition to the above reasons, learned counsel for the accused also submits that since PW4 testified that both the GC-MS and GC-FID machines are not in good working conditions, therefore it is pertinent for Wardah to be examined. [36] In support of the above contention, the learned counsel for the accused relies on the Court of Appeal’s decision in Gunalan Ramachandran & Ors v. PP [2004] 4 CLJ 551 wherein it was held as follows: - “Even then, the question is: In the absence of a specific provision of the law, who is to determine what is the adequate quantity that should be taken as sample(s) for the purpose of carrying out the tests? The court or the chemist? Who is the expert? Who carries out the test? The answer must be the chemist.” “In prosecutions for offences involving the possession of a dangerous drug, it is important for the prosecution to prove that the substance is a particular dangerous drug and the weight of it, because the penalty for the offence depends on the weight of the particular dangerous drug. The proof is furnished by the evidence of a chemist, an expert who examined and analysed the substance. Cross-examination of the chemist will seek to find fault with the manner in which the chemist arrived at his conclusion in order to create a doubt in the mind of the court as to the nature of the substance or, which I perceive is more often the case, as to the weight of the particular dangerous drug, because the severity of the penalty depends upon the weight.” October 27, 2024 9 [37] In response to the learned counsel for the accused submission, the prosecution submitted that there is no need to call PW4’s assistant, Wardah because she only operated the GC-MS and GC-FID machines. According to the prosecution, Wardah only played a small role and the actual analysis was carried out by PW4. [38] In support of their submission, the prosecution relied on the decision on Rita Krisdianti v. PP [2018] CLJU 421 wherein it was held: - “[35] We are of the view that the instant case before us is easily distinguishable on two grounds, namely: (i) the chemist in the case cited by learned counsel had been seriously challenged during cross examination and the learned trial judge in that case had made a certain finding of fact which does not exist in the instant appeal before us; and (ii) in the case cited by learned counsel, the chemist was assisted by assistant science officer (Penolong Pegawai Sains), whereas in the instant appeal before us, SP7 was assisted by the laboratory assistant playing a minor role in just running the GCMS machine under the supervision of the chemist. The analysis was done by the chemist (SP7) herself.” [39] In my judgement, I find PW4 has sufficiently explained in his testimony during re-examination that Wardah only assisted him in operating the GC-MS and GC-FID machines as follows: - “PEMERIKSAAN SEMULA : Encik Isa, tadi tuan telah ditanya berkenaan dengan 2 alatan yang telah digunakan GCMS dan GCFID berkenaan siapa di Jabatan Kimia Melaka, pegawai mana yang kendalikan kedua-dua alatan ini. Jawapan tuan adalah Puan Warda binti Mohd Nasir. Kemudian, tuan ada ditanya laporan yang Encik Isa sediakan P34 dan P33 October 27, 2024 10 adalah keterangan daripada Puan Warda, jawapan tuan sebentar tadi adalah ia. Dibantu oleh Puan Warda, saya berada di situ. Tentang perkara-perkara ini ada apa-apa nak dijelaskan kepada mahkamah? : Untuk peralatan GCMS. Yang pertama GCMS dan GCFID, dia merupakan seroang pegawai yang akan inchagre atau pun mengetuai untuk peralatan tersebut. Jadi, setiap analisis yang dijalankan oleh kedua-dua peralatan ini, ianya akan dilakukan oleh beliau dan pegawai sains akan membantu menyediakan larutan. Mahkamah: Sekejap. Setiap analisis. : Setiap analisis yang dijalankan, setiap pegawai sains akan menyediakan larutan, timbagan, reagen dan proses melakukan analisis dijalankan dan bersama-sama kami akan menjalankan analisis tersebut. Itu maksudnya bukannya dia melakukan secara berseorangan. Dia akan dilakukan secara bersama-sama. Mahkamah: Bersama-sama? : Ya. Mahkamah: Bukan dia lakukan seorang? : Ya.” [40] In Public Prosecutor v Hadi Bakhshi Kheimeisari Aliasghar And Another Appeal [2021] 3 MLJ 259 wherein it was held: - “[28] …The two lab assistants mentioned were merely operating the machine, essentially to calibrate the machine and to get the result of the analysis only. They were merely assisting to get the result October 27, 2024 11 ie the printout from the machine and pass that result to PW4. For that purpose, the two assistants were not involved in the analysis of the drugs in question. Thus, on this score, we are not in agreement with the counsel for the appellant with regard to this issue regarding the identity of the exhibits and also of the alleged break in chain of the exhibits.” [41] In Public Prosecutor v. Lam San (supra) and Munusamy Vengadasalam v. PP (supra), it was held by the Supreme Court that the evidence of a chemist should be accepted at face value without going into details of what the chemist did in the laboratory step by step unless the evidence is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the chemist’s evidence. [42] In the instant case, I do not find the evidence of PW4 to be inherently incredible based on his testimony as to how he conducted the analysis. PW4 testified that he was assisted by Wardah in carrying out the analysis. He further said he was present during the analysis and checked all the results. Thus, I accept PW4’s evidence and find no merit in the submission made by learned counsel for the accused. Please also see Ilham Saputra Zainal Abidin v. PP [2013] CLJU 1259 and Konradt Prosch v. PP [2020] CLJU 2065 on this point. [43] In the circumstances, the prosecution has established the first ingredient of the offence. October 27, 2024 12 Possession [44] To prove possession, the prosecution had to prove that the accused had knowledge of the drugs and that he had some form of control or custody of the drugs. In PP v. Muhamad Nasir bin Shaharudin [1992] 4 CLJ 2028; [1994] 2 MLJ 576 it was held: - “To prove either of these two requirements, the prosecution may either adduce direct evidence or it may rely on the relevant presumptions under s. 37 of the DDA.” [45] The meaning of custody and control has been explained by Raus Sharif CJ in Ghasem Hozouri Hassan v. PP [2018] 6 CLJ 133 thus: - “......when we talk about the issue of custody and control, what is crucial is that the accused must be so situated that he can deal with the proscribed drugs as if it belonged to him, and it must be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so (he had animus possidendi).” [46] As for knowledge of the drugs, it was held in Chan Pean Leon v. PP [1956] 1 LNS 17: - “Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again, the possible variety of circumstances which will support such an inference is infinite. [emphasis added]” [47] Finally, in Anagwaonye Chukwudi Nathaniel v P.P [2020] 1 LNS 1277, it was held by the Court of Appeal: - October 27, 2024 13 “[8] In relation to the issue of possession, it is trite that the prosecution may establish actual possession without relying on presumed possession under section 37(d) and rely on the weight of the drugs to trigger the presumption of trafficking under section 37(da) to prove the charge under section 39B or to rely on the presumed presumption under section 37(d) and adduced affirmative evidence to prove trafficking with the aid of the definition of trafficking under section 2 of DDA 1952. [9] This matter has been lucidly explained by the Federal Court in the case of Public Prosecutor v. Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193 at page 203, in the following words: ‘[17] It ought to be stated at the outset that the decision in Muhammad bin Hassan only prohibits the use of double presumptions under ss. 37(d) and 37(da) of the Act. It is therefore, open to the prosecution to rely on either of the presumptions. In other words, the prosecution may positively prove possession without relying on the presumption under s. 37(d) of the Act and go on to rely on the presumption of trafficking under 37(da) of the Act to support a charge under s. 39B of the Act. See Tunde Apatira & ors v. Public Prosecutor; Msimanga Lesaly v. Public Prosecutor [2005] 4 MLJ 314, a decision of Court of Appeal which was confirmed by this Court in Federal Court Criminal Appeal No 05 – 27 of 2004(K). Conversely, the prosecution may rely on the presumption under s. 37(d) to prove possession and seek to prove by affirmative evidence (independent of the presumption under section 37(da)) that the accused was in fact trafficking in the dangerous drugs.’ (emphasis added).” [48] In the present case, the impugned drugs were not found on the accused. [49] The prosecution seeks to rely on the following facts to fasten possession of the drugs on the accused: - October 27, 2024 14

The drugs were found in the bedroom where the accused was detained.

(ii) The house has only two bedrooms.

(iii) According to the accused’s wife (PW5) the bedroom where the drugs were found is occupied by her and the accused.

(iv) During the raid, the accused was alone with his child, a toddler in the said bedroom and he was already awake from his sleep and was sitting on the mattress.

The drugs were found on top of a light purple coloured plastic cabinet with drawers (“plastic cabinet”). According to PW5, the place where the drugs were found is the place where she keeps her personal things like her breast pad and hairdryer. PW5 testified that the last time she had accessed this cabinet was to get her breast pad just before leaving the house to go to the market around 9.30 am. PW5 identified the things on top of this cabinet in photograph P11(12) as being the same before she left the house.

(vi) Therefore, the defence contention that the accused wife, his children or neighbour could have accessed the house just before the raid is baseless since during the raid, it was only the accused and his child in the bedroom where the drugs were found. October 27, 2024 15

(vii) PW5 confirmed that the other children were not at home at the material time and were with her in-laws at Batu Pahat.

(viii) According to PW5, although the accused friends often come to the house, they will be in the living hall and will not loiter around the house as they wish.

(ix) PW5 also testified that she did not lock the house when she left the house to go to the market since the accused was in the house. Hence this goes to show that the accused had custody and control of the house between 9.30 am to 10.40 am. on the day when the raid took place

Hence the above facts points to the juxtaposition or proximity of the accused with the drugs found in the bedroom.

(xi) It is not reasonable for someone to have entered the house during the 20 minutes of observation carried out on the house by the police and placed the drugs, particularly on top of the plastic cabinet where the drugs were found. [50] To establish the juxtaposition or proximity of the accused with the drugs, the prosecution relies on the raiding officer’s (PW1) evidence in his examination in chief as follows: - “7. Saya membuka pintu dan masuk ke dalam rumah telah nampak satu lelaki Melayu sedang duduk di atas tilam di dalam bilik sebelah kiri pintu masuk, saya kenalkan diri polis dengan menunjukkan kad kuasa, saya buat pemeriksaan kad pengenalan dapati nama: Mohd Khuzaimi bin Ahmad, kpt: 810907-01-6233. Tingkah laku saspek dalam keadaan gelisah. October 27, 2024 16

Saya buat pemeriksaan tubuh badan secara teknik tepuk tapi tiada menjumpai apa-apa barang salah atau dadah, dengan disaksikan oleh suspek dan anggota serbuan, saya buat pemeriksaan didalam bilik tempat suspek ditahan,hasil pemeriksaan dibuat saya telah menjumpai (1) plastik warna biru bertulis POLIKLINIK AZZU (ditanda ‘A’) diatas rak laci plastik berwarna hitam/ungu cair, apabila diperiksa didalamnya terdapat

botol plastik lutsinar bertutup warna merah (ditanda ‘A1’) didalamnya pula terdapat (1) peket plastik lutsinar berikat dengan getah berisi bahan-bahan disyaki dadah syabu (ab: 125.71gram)( ditanda ‘A2’). Barang kes dalam keadaan tersorok dan tertutup di dalam plastik biru bertanda “A”.” [51] In support of PW1’s above testimony on the juxtaposition or proximity of the accused with the drugs, the prosecution also relied on PW1’s report on the arrest and seizure of the drug case exhibits (P6), his search list (P5), photographs of the plastic cabinet in the bedroom where the drugs were found P11(11-12), photographs of the mattress and the plastic cabinet in the said bedroom P14(5) and photographs evidencing the proximity of the plastic cabinet to the bed where the accused was seated on the mattress during the raid P48(1-6). [52] As for knowledge of the drugs, the prosecution relied on the fact that the proximity between the accused and the drugs which was found was very close. [53] The prosecution also relied on the conduct accused looking worried and only staring at the floor when the drugs were found by the police. October 27, 2024 17 [54] They also relied on the conduct of the accused shaking his head and not saying anything when questioned by his wife (PW5). According to the prosecution, the conduct of the accused shaking his head cannot be interpreted as denying knowledge of the drugs found and his said conduct is because his wife does not know about the accused’s prior involvement with drugs. [55] In my opinion, based on the above facts relied upon by the prosecution, they are seeking to establish actual possession of the drugs against the accused without relying on presumed possession under Section 37 (d) DDA 1952. [56] In summary, the prosecution’s case can be concluded that the accused, his wife and their small child were the only occupants of the house at the material time. The other children were living in Batu Pahat with the accused parents. The drugs were found in the bedroom on top of the plastic cabinet beside the bed. The accused just woke up from his sleep and was seated on the mattress. The proximity between the accused seated on the mattress and the plastic cabinet where the drugs were found is just side by side. No other persons had access to the house and the accused was the only adult in the house at the material time when the raid took place. Therefore, the drugs surely must belong to the accused and he must have kept the drugs on top of the plastic cabinet where it was found by the police. [57] According to the accused defence put during the prosecution case to the prosecution’s witnesses, the impugned drugs were not found in the bedroom on top of the plastic cabinet beside him and he was October 27, 2024 18 not seated on the mattress at the material time during the raid as alleged by PW1. [58] It was put to PW1 by learned counsel for the accused that the accused was asleep on the mattress at the material time and the transparent plastic bottle with a red cap (P16) containing one transparent plastic packet tied with a rubber band containing drugs type syabu (P38) were not found on top of the plastic cabinet except for the blue plastic packet with the words POLIKLINIK AZZU (P15) [59] The accused defence is that the drugs purportedly discovered by PW1 on top of the plastic cabinet were actually found at the back of the house by the police and it was brought inside the house by the police. [60] The accused also stated in his cautioned statement which was recorded two days after his arrest that the drugs were found at the back of the house by the police and he had never brought any drugs inside the house because his children are still young and he does want them to know about drugs. His cautioned statement was tendered as D51. [61] Apart from his caution statement, the accused also lodged a police report disputing PW1’s allegation that the drugs was found on top of the plastic cabinet in the bedroom and says that it was actually found outside at the back of house. He lodged this report after being charged in Court and upon perusing PW1’s police report (P6) and search list (P5) that served on him by the prosecution. His report was tendered by the accused and marked for identification purpose only as IDD52. October 27, 2024 19 [62] Hence, the accused submits that he had given the required Alcontara Notice and it was incumbent upon the prosecution to rebut the veracity of the facts disclosed and negate the facts disclosed. [63] In addition to the issue concerning whether the drugs were actually found by the police at the back of the house, the accused also raised the issue of the failure of the prosecution to exclude access to the said bedroom and the house by other persons. [64] According to the accused, the house could also be accessed by the house owner, four (4) of his other children and his friends. The house was rented from one Mareni Binti Ibrahim (“Mareni”) who is the owner. [65] The investigating officer (PW6) had recorded a statement from Mareni. However, she was not called as a witness by the prosecution. [66] The bedroom where the impugned drugs were purportedly found is not locked and therefore it could be accessed by these other persons or any of the occupants of the house. Custody and control [67] I now come to my findings on whether the prosecution has proven that the accused had custody and control of the drugs. [68] The prosecution called the accused wife (PW5) as their witness. PW1’s evidence that the drugs were found in the bedroom on top of October 27, 2024 20 the plastic cabinet beside where the accused was seated on the mattress is totally contradictory to PW5’s evidence. [69] PW5 testified that she did not see any suspicious things or things not belonging to her on top of the plastic cabinet when she accessed that cabinet to get her breast pad before leaving the house to go to the market. Her evidence during examination in chief is as follows: - “S : Jadi puan ada apa-apa nak bagi penjelasan tak? : Ada. Biasanya hari-hari saya akan, maksudnya saya ada breastpad. Saya breastfeed anak saya. Ada breastpad dekat sini. Saya akan pakai dia sentiasa. Pagi itu sebelum saya keluar memang saya akan ambil barang dekat situ lepas itu hairdryer ini semua biasa memang akan saya pakailah hari-hari. Pagi sebelum saya keluar saya memang ada pergi ke situ ke tempat barang-barang saya itu tapi memang saya tak nampak apa-apa yang mencurigakan atau bukan barang yang saya punya.” [70] PW5 also maintained her evidence that she did not see the case exhibits P15, P16 and P38 that were seized by PW1 on top of the plastic cabinet in her cross-examination as follows: - “Peguambela: Yang Arif, saya mohon rujuk gambar barang kes kepada saksi ID12. : Puan Suzi, saya ada rujuk di sini album gambar. Saya nak puan tengok gambar yang pertama ini. Nombor 1 ada plastik warna biru, bekas barang plastik lutsinar dan juga satu plastik lutsinar putih. Jadi, rujuk kepada keterangan puan tadi bahawa memang di tempat rak plastik di dalam October 27, 2024 21 bilik puan ini, puan memang tak pernah nampak barang lain selain daripada barang-barang peribadi puan ini? : Ya. : Puan lihat gambar ID12 gambar 1 yang saya tunjukkan tadi itu. Pernah tak puan lihat barang-barang seperti plastik biru ini, balang plastik dan plastik lutsinar berada di atas rak plastik yang berada di dalam gambar yang kedua ini iaitu ID11 gambar nombor 11? : Tidak pernah. : Saya juga nak cadangkan sepanjang puan tinggal di rumah ini, di rumah tempat kejadian ini, suami puan pada ketika itu Mohd Khuzaimi bin Ahmad pun tidak pernah puan lihat dia memegang atau pun bersama-samanya barang dalam gambar nombor 1, ID12 ini. Plastik biru ini, barang plastik dan satul lagi ini? : Tak pernah.” [71] Further, during her re-examination, PW5 said the space on top of the plastic cabinet was small and only her personal things were kept there. [72] When PW5 was asked by the Court whether the things on top of the plastic cabinet shown in photograph P11(12) were the same as before she went to the market, she answered yes. [73] Although PW5 is the accused wife at the material time, it is settled law that there is no legal presumption that an interested witness should not be believed. An interested witness is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances. October 27, 2024 22 Please see PP v Yap Boon Chang [1992] 3 CLJ Rep 454. [74] In my opinion, the prosecution is bound by the evidence of PW5 whom they called. In Lim Guan Eng v. PP & Other Appeals [1998] 3 CLJ 769), it was stated by the Court of Appeal: - “Now, among the general rules that govern judicial appreciation of evidence in both civil and criminal causes in the adversarial system of justice there is one of fundamental importance. It is that a party is bound by the evidence of witnesses whom he calls in proof of his case.” [75] In PP v Haling Arala Jimjani [2008] 4 CLJ 163, with regards to evidence given by the wife of an accused person called as a prosecution witness, the Court of Appeal stated as follows: - “[18] Timbalan pendakwa raya berhujah bahawa tertuduh telah cuba melarikan diri apabila didekati oleh PW2. Seperti yang telah dinyatakan di atas, terdapat dua versi terhadap isu ini daripada keterangan dalam kes pihak pendakwaan. Hakim bicara setelah membuat penilaian menyeluruh akan kes pihak pendakwaan, telah memutuskan untuk menerima versi dalam keterangan isteri tertuduh iaitu PW7. Kami memutuskan bahawa hakim bicara tidak tersilap dalam keputusannya itu dan berhak menerima mana satu di antara dua versi yang tidak dicabar tanpa memberi apa-apa alasan. Dalam kes Mewah Plus Property Sdn Bhd v. Kluang District Government Servants Co-operative Housing Society Ltd [2000] 2 CLJ 236, mahkamah ini telah memutuskan bahawa seseorang hakim bicara boleh menerima dan memberi keutamaan keterangan seorang saksi berbanding keterangan saksi yang lain, jika kedua-dua saksi itu memberi keterangan yang berbeza.” [76] In PP v Premakumar Balan & Anor [2010] 3 CLJ 736, it was held by Zamani JC (as he then was) as follows: - October 27, 2024 23 “[16] In this case, the credit of SP8 remained unscathed. Although SP8 is the wife of the 1st accused, this does not diminish the slightest bit the value of her testimony. In fact, she gave evidence in a straight forward manner, showing no signs of embarrassment at all. Both the prosecution and defence may rely on her evidence for whatever it is worth. The judicial appreciation of the evidence of the wife of the accused was described by Augustine Paul J (as he then was) in PP v. Ramli Shafie [2002] 8 CLJ 846 at p. 860 as follows: - The fact that PW3 is the wife of the accused does not disentitle her to credence, contrary to the submission of the learned deputy public prosecutor, until cogent reasons for disbelief have been advanced (see Balasingham v. PP [1959] 1 LNS 8; Rattan Singh v. PP [1970] 1 LNS 132), no such evidence was adduced by the prosecution.” [77] In the present case, the credit of PW5 remains unscathed. Her testimony was not impeached by the prosecution. Neither was she treated as a hostile witness by the prosecution. [78] I have perused and analysed PW5’s testimony. I also have observed PW5’s demeanour during her testimony. In my judgement, PW5 is a truthful witness as she gave evidence in a straightforward manner to all the questions posed to her. There are no reasons for me to doubt her credibility. [79] In my opinion, since the prosecution’s case is premised on the affirmative evidence of PW1 that the drugs were found in the bedroom on top of the plastic cabinet beside where the accused was seated on the mattress to establish the accused had custody and control of the drugs, it was therefore incumbent upon the prosecution to prove this fact without any doubts or discrepancies. October 27, 2024 24 [80] According to PW1, two police officers escorted him into the bedroom when the raid took place and the impugned drugs were found on top of the plastic cabinet. However, these two officers were not called to corroborate PW1’s testimony. [81] The search list (P5) which was prepared by PW1 states that five other police officers were present during the inspection. But none of them were called by the prosecution to corroborate PW1’s testimony that the drugs were found in the bedroom on top of the plastic cabinet. [82] Next, PW1 also in his examination in chief said that the blue plastic packet with the words “POLIKLINIK AZZU” (P15) which contains the drugs was found behind the basket on top of the plastic cabinet. PW1 then identified this spot on the plastic cabinet by marking “X” on the photograph P11(12). [83] However, PW1 did not mention this fact in his police report (P6) and when it was put to him by the learned counsel for the accused that this was the first time he said that the blue plastic packet with the words “POLIKLINIK AZZU” (P15) which contains the drugs was found behind the basket on top of the plastic cabinet, PW1 agreed. [84] Next, when it was put to PW1 by learned counsel for the accused that he failed to state in his search list that the blue plastic packet with the words “POLIKLINIK AZZU” (P15) which contains the drugs was found in the bedroom, PW1 agreed. October 27, 2024 25 [85] In the foregoing, upon evaluating the evidence of PW1 and PW5, there is a real about PW1’s testimony whether the drugs were actually found on top of the plastic cabinet behind the basket. [86] Therefore, it was pertinent for the investigating officer to have investigated the veracity of the accused version in his cautioned statement whether the drugs were actually found by the police at the back of the house and not on top of the plastic cabinet beside the mattress in the bedroom. [87] Learned counsel for the accused submits that the Alcontara Notice was given and therefore the burden was on the prosecution to rebut this notice. In support of this submission, he relies on the Court of Appeal’s decision in Teo Kian Chun v PP & Other Appeals [2020] 10 CLJ 398 wherein it was held: - “[56] Once such a notice is given, investigation must be carried out on the disclosure given and the onus is then shifted to the prosecution to rebut the “Alcontara notice”. The shifting of the burden however, to the prosecution after the giving of the “Alcontara notice”, as of necessity pre-supposes that sufficient particulars or reasonable details are furnished in order for the investigation officer to carry out a meaningful investigation. [57] Once such disclosure is made, it is then incumbent upon the prosecution to check the veracity of the facts disclosed and to negate the facts disclosed. It was held in Chan King Yu v. PP [2009] 1 CLJ 601: [78] As regards the material particulars relating to the existence of Man Chai which had been disclosed by the appellant in his cautioned statement exh. D29 which was made on the day after his arrest, I am of the view that the police had all the time to check as to their veracity. The burden was on the prosecution to check whether the appellant’s version of the facts as they appeared in the cautioned statement was true or false. October 27, 2024 26 The onus was upon the prosecution to disprove this important part of the appellant’s version of facts. The appellant was under no duty to put to the investigation officer the aforesaid material particulars in view of their prior disclosure in the cautioned statement. (See the case of Alcontara Ambross Anthony v. PP (supra)). (emphasis added).” [88] He also cites the decision in Rengarajan Thangavelu v PP [2015] 1 CLJ 993, where it was decided by the Court of Appeal as follows: - “[10] ………From the decided cases, the information in the cautioned statement without sufficient information of ‘Pandian’ and the purported recipient is a story and is not a good ‘Alcontara Notice’ for placing an obligation on the part of the prosecution to rebut the same. The story if true, places the burden on the appellant to rebut trafficking on the balance of probabilities. That is to say, he may have to call ‘Pandian’ or the purported recipient to give evidence in support of his case. However, if he has given a good ‘Alcontara Notice’ the obligation will be for the prosecution to track down ‘Pandian’ or the purported recipient to ascertain the truth of the appellant’s story. At least the prosecution will be obliged to lead evidence to say what steps they have taken to verify the appellant’s story to the satisfaction of the court………” [89] Lastly, the learned counsel for the accused also submitted the decision in Kobra Taba Seidali v Public Prosecutor [2014] 2 MLJ 554 where the Court of Appeal held: - “[19] In the instant case, we take the view the failure of the prosecution to produce Maryam as a witness or hand over a copy of the witness statement to the defence to be used if it is favourable as part of the defence exhibit at the defence stage is fatal on the factual matrix of the case. In addition, the failure of the prosecution to rebut the ‘Alcontara Notice’ or give October 27, 2024 27 appropriate reason to do so is also fatal. [See Alcontara Ambross Anthony v. PP [1996] 1 CLJ 705; Munuswamy Sundar Raj v. PP [2013] 1 LNS 183; [2013] 5 MLJ 48]. In consequence we agree with learned counsel that an opportunity of fair trial has been compromised by the prosecution.” [90] In my judgement, although in the present case, the Alcontra Notice did not concern the involvement of a third person pertaining to the trafficking of the drugs, still it was incumbent upon the prosecution to verify the accused version whether the drugs were found at the back of the house by the police and brought inside the house and it was not found on top of the plastic cabinet. [91] Therefore, it was incumbent upon the investigating officer (PW6) to investigate the accused cautioned statement (D51). [92] I arrive at this conclusion without taking into account the police report lodged by the accused (ID D52) since at this stage the report has yet to be tendered as an exhibit. [93] In my judgement, investigations by PW6 on the accused caution statement are important because if it is true that the drugs were indeed found at the back of the house, the question arises as to whom the drugs belong. Whether it belongs to the accused or to some other persons who have access to the back of the house. [94] The marking “G” on the sketch plan (P43) tendered by the prosecution shows that it is the “Ruang Luar Bahagian Rumah”. Therefore, from this marking and the photographs tendered as October 27, 2024 28 P11(16-18), it can be inferred that the back of the house referred in evidence to during the trial is situated outside the house. [95] Furthermore, photographs of the house tendered by the prosecution in P11(17 and 18) and P14(2 and 6) also show no gate surrounding the house. Therefore, anyone can freely access the back of the house and could have placed the drugs there. [96] However, no investigation was carried out by PW6 at all. PW6 admitted in his cross-examination that he did not carry out investigations as to the accused version in his caution statement that the drugs were found at the back of the house by the police and brought inside and it was not found on top of the plastic cabinet. [97] PW6 also agreed in cross-examination that with regards to the other drugs found by PW1 wrapped in a plastic packet with the words ECONSAVE (P18) underneath a heap of used things placed in a blue plastic container (P17) at the back of the house, no further action was taken because it was found outside the house. He testified as follows: - “S : Kes tersebut saya boleh cadangkan kes yang di NFA itu adalah atas faktor bahawa tempat dimana ianya ditemui adalah di luar rumah ini yang mana isu pemilikan terhadap Tertuduh ini adalah jauh, betul? : Betul.” [98] This doubt as to whether the drugs were found on top of the plastic cabinet in the bedroom is also compounded by the fact that PW1 never informed the accused wife (PW5) of this fact. However, PW5 testified that she was informed by PW1 that the drugs were October 27, 2024 29 discovered at the back of the house. Her testimony during the examination in chief was: - “TPR : “Aku jumpa barang laki kau”, Yang Arif. : Sekejap ea. Slow-slow? : Lepas itu saya tanya balik “barang apa”. Dia cakap “barang laki kaulah”, dia cakap macam itu. Saya tanya lagi “dekat mana”. Dia jawab “dekat belakang”. Lepas itu saya pandang suami, saya tanya kenapa. Suami saya cuma geleng kepala jelah.” [99] But when it was put to PW1 by the defence counsel that he did not reveal to the accused wife (PW5) at the material time that the drugs were found in the bedroom, PW1 answered not sure. [100] PW5 all along were under the impression that the drugs were found by the police at the back of the house. She only became aware that the drugs were found in the bedroom when PW6 came to take photographs of her bedroom and she had asked PW6 the purpose of photographs of the bedroom being taken. [101] To make matters worse for the prosecution’s case, the investigating officer (PW6) himself admitted during cross-examination that based on the accused caution statement (D51) and his police report (ID D52), he was unable to determine PW1’s version of whether the drugs were found on top of the plastic cabinet in the bedroom is true. [102] Hence all these facts point to a real doubt as to whether the drugs were found in the bedroom on top of the plastic cabinet beside where the accused was seated on the mattress or it was found outside at the back of the house. October 27, 2024 30 [103] In respect of access to the house by others, it was submitted on behalf of the accused that apart from him, his wife (PW5), Mareni the house owner, the accused other children and his friends too have access to the house. [104] According to PW5, the door lock to the bedroom occupied by her and the accused where the drugs were purportedly found by PW1 is spoilt and this bedroom can be accessed by their children easily. She also further testified that the accused friends and neighbours could easily access her house because seldom the front and back doors of the house were locked. [105] PW6 also agreed in his cross-examination that the bedroom where the drugs were found is not locked and can be accessed by the other occupants and Mareni also can access the house. [106] In addition to the above material discrepancy as to the place where the drugs were found in the prosecution’s evidence, the DNA analysis, fingerprint test and urine test on the accused all turned out to be negative. [107] In conclusion, I find the prosecution has failed to prove that the accused had custody and control of the drugs based on mere proximity or juxtaposition of the accused to the drugs as alleged in the evidence of PW1. [108] In PP v Chang Kok Foo [2015] 1 LNS 481, it was held by His Lordship Collin Sequerah as follows: - “[65] It is therefore clear that mere proximity or juxtaposition of the accused to the drugs without more is insufficient to fasten October 27, 2024 31 possession upon the accused. In the circumstances, I find that the prosecution has failed to prove that the accused had knowledge of the drugs found in the room and has failed to prove that the accused was in possession of the said drugs.” Knowledge [109] I now come to the inference that both the accused persons have knowledge of the impugned drugs. [110] The prosecution relies on the conduct of the accused looking worried, staring at the floor when the drugs were found and shaking his head when questioned by his wife (PW5) to infer that the accused had knowledge of the drugs found in the bedroom on top of the plastic cabinet. [111] In my judgement, the conduct of the accused looking worried, staring at the floor and shaking his head itself is insufficient to infer knowledge because there were no attempts by the accused to escape or struggle when the drugs were found and he was detained. [112] In PP v Majid Saleh Jahromi Amrollah [2012] 6 CLJ 236, it was held by the Court of Appeal: - “[35] …………We also agreed with the learned trial judge’s finding that there was no sufficient evidence to infer knowledge against the respondent. There was no evidence of positive conduct on the part of the respondent like attempting to escape or struggling when apprehended by PW5 from which it could be safely inferred that the respondent knew about the drugs in P9. It is not sufficient to rely on PW5’s evidence that the respondent looked fearful and restless to infer knowledge against the respondent as that is a October 27, 2024 32 matter of perception. Furthermore, the contemporaneous conduct of the respondent was consistent with his innocence. On being apprehended by PW5 the respondent told PW5 that he did not know that there were drugs in P9.” [113] In Parlan Dadeh v PP [2009] 1 CLJ 717 it was stated by the Federal Court as follows: - “[36] The law relating to evidence of conduct is thus patent. If there is no evidence to show that the conduct is influenced by any fact in issue or relevant fact as required by s. 8 then it is not admissible as it would then be an equivocal act justifying inferences favourable to the accused being drawn. If it satisfies the requirement of s. 8 it is admissible. It must be observed that the degree of proof required to establish evidence of conduct would depend on the nature of the conduct. Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like the accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required…….”. [114] In light of my above finding that there is real doubt as to whether the drugs were found in the bedroom on top of the plastic cabinet beside where the accused was seated on the mattress or brought from outside at the back of the house, the conduct of the accused looking worried, staring at the floor and shaking his head can be inferred in favour of the accused as his reaction or response for not having knowledge of the said drugs found by the police at the back of the house. [115] In addition to the accused looking worried, staring at the floor and shaking his head, the prosecution also relies on the proximity between the accused seated on the mattress and the plastic cabinet October 27, 2024 33 where the drugs were found just side by side to prove the accused had knowledge of the drugs. [116] However, since I have found that there exists a real doubt as to whether the drugs were found in the bedroom on top of the plastic cabinet beside where the accused was seated on the mattress or it was found outside at the back of the house, therefore the prosecution cannot rely on this fact to prove knowledge. [117] In short, the prosecution has failed to adduce any detailed evidence concerning the accused conduct looking worried, staring at the floor and shaking his head to incriminate him with the drugs. [118] In Romi Amora Amir v. Public Prosecutor [2011] 4 MLJ 571 the Court of Appeal said: - “Unless knowledge is proved, an item however close to a person, could just be miles away.” [119] Henceforth, the prosecution also failed to prove the accused had knowledge of the impugned drugs. TRAFFICKING THE DRUGS [120] Therefore, the presumption of trafficking under Section 37 (da) (vi) of the DDA 1952 invoked by the prosecution does not arise since I have found possession not proven. October 27, 2024 34 DECISION [121] In Magendran Mohan v PP [2011] 1 CLJ 805, it was held by the Federal Court: - “[25] 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.” [122] Upon maximum evaluation of the prosecution's evidence to satisfy whether a prima facie case has been made out of the charge against the accused and he is to be called to answer and defend the charge as provided by the guidelines enunciated by the Federal Court in 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] 1 CLJ 734; [2003] 2 MLJ 65, this Court finds that the prosecution has failed to establish a prima facie case beyond reasonable doubt. [123] I had asked myself the question “If I decide to call upon the accused to enter their defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case?” and the answer was a clear “No”. The prosecution has not met their burden of proof. [124] In the upshot, I find that the prosecution has failed to establish a prima facie case against the accused beyond reasonable doubt. I October 27, 2024 35 therefore discharge and acquit the accused of the charge preferred against him without calling for his defence. Dated this 27th October 2024 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judicial Commissioner High Court of Malaya Muar Johore Darul Ta’zim Counsels: For the Accused : Muhammad Bin Abd. Kadir For the Respondent : Putera Amirool Faez Bin Suhasi Solicitors: For the Accused Messrs Muhammad Abd Kadir & Co. Advocates & Solicitors #02-20, Blok 7, Danga Bay Jalan Skudai 80200 Johor Bahru [Ref. No. : CR/177/2020] October 27, 2024 36 For the Respondent Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Daerah Muar No. 16, Jalan Petri Muar Trade Centre 84000 Muar Johor [Ref. No. : TPRJH(MR-TGKK)197-A/20] Hearing Date : 7th November 2022, 30th July 2023, 1st August 2023, 19th December 2023, 20th December 2023, 24th March 2024, 25th March 2024, 26th March 2024, 15th May 2024, 16th July 2024, 12th August 2024, 22nd October 2024 Decision Date : 27th October 2024