of the Poisons Act 1952 read together with s 34 of the Penal Code. [4] The accused was called to enter his defence on the charge of trafficking in dangerous drugs to wit. Methamphetamine weighing 381.4 grams under s. 39B (2) of the DDA. The charge reads as follows: S/N DFfDmUyoOkyw9ozAojTG7w “Bahawa kamu pada 18 Januari 2021, jam lebih kurang 1.00 petang, di kawasan letak kereta B1a Dorsett Residence Bukit Bintang, Jalan Imbi, di dalam daerah Dang Wangi, dalam Wilayah Persekutuan Kuala Lumpur, telah mengedar dadah berbahaya iaitu 381.4 gram Methamphetamine. 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.” [5] At the close of the case, this Court found that the prosecution had proved a case beyond reasonable doubt against the accused. The accused was convicted and sentenced to 30 years imprisonment from the date of arrest and 12 strokes of whipping. [6] The reasons now follow. Case for the Prosecution [7] Five witnesses were called to testify on behalf of the prosecution. [8] Acting on information received, on 18.1.2021, at around 1.00 pm, SP3, the raiding officer together with his team of 11 police personnel, conducted an operation and surveillance at a parking area at level B1a, Dorsett Residence Bukit Bintang, Jalan Imbi, 55100 Kuala Lumpur. [9] After ten (10) minutes of surveillance and observation, SP3 saw two malay men said to be looking suspicious walking at the parking area and was heading towards the door to the lobby lift area. SP3 saw one of the men was holding a brown envelope in his right hand. S/N DFfDmUyoOkyw9ozAojTG7w [10] The two men were seen entering the lobby lift area through the door and minutes later, they came out from the same door and were approached by SP3 and his team. SP3 introduced himself as a police personnel by showing his authority card. It must be noted that at this juncture, the brown envelope held by one of the men was no longer with him. That man is the accused. [11] SP3 then went to inspect the lobby lift area where one parking paying machine was situated outside the lift at the lobby lift area. SP3 then found a brown envelope on top of the parking paying machine and identified by him to be the same brown envelope held by the accused earlier. Upon opening the envelope in the presence of his team members, the accused and Nur Izuwan, SP3 found a translucent packet with crystal chunks in it suspected to be methamphetamine. Inspections were conducted on the accused but nothing incriminating was found with him. Upon inspection on the other man/suspect (Nor Izuwan bin Md Isa/Nor Izuwan), SP3 found fifteen 15 aluminium foils wrapped and bound in rubber bands where each of the aluminium foils contained drugs type Eramine 5, in the black bag carried by Nor Izuwan. [12] SP3 also confiscated from Nor Izuwan, a car key with remote control in his right hand pocket of his pants. SP3 further confiscated from the accused a key with an access card written on it “Dorsett Residence” in the right hand pocket of the pants worn by the accused. [13] The accused then led SP3 and his team to the apartment 13a-03 Dorsett Residence, Bukit Bintang at around 2.00 pm. SP3 then opened the door of the apartment using the key he confiscated from the accused earlier. In the apartment SP3 found a Thai woman later identified as S/N DFfDmUyoOkyw9ozAojTG7w Darunee Kalabud. The police found nothing on Darunee Kalabud who was in a room marked as B. In another room, SP3 found a white plastic bag written on it ‘Mynews’ on a table inside the room. The ‘Mynews’ plastic bag contained drugs which were stated in the charges preferred against the accused and Darunee Kalabud. Evaluation and Findings [14] S 180 (4) of the Criminal Procedure Code (CPC) requires that at the close of the prosecution case, the duty of the prosecution is to make out a prima facie case against the accused. The prosecution must adduce credible evidence proving each ingredient of the offence of trafficking of dangerous drugs which if unrebutted or unexplained by the accused would warrant a conviction. [15] The Court will have to embark on a maximum evaluation of the evidence proffered whereby positive evaluation of the credibility and reliability of all the evidence adduced must be made to determine if the ingredients of the offence under section 39B (1) (a) of the DDA has been established. Any reasonable doubt would be resolved in favour of the accused thus entitling no prima facie case proven against him. [16] This Court is satisfied that upon perusing and evaluating the evidence adduced by the prosecution, there has been proof of the followings: The accused was seen carrying the brown envelope (P39) The accused and Nor Izuwan entered the lobby lift area and minutes later they came out again to the parking area but this time around the accused was no longer holding or carrying the brown envelope (P39) S/N DFfDmUyoOkyw9ozAojTG7w SP3 and his team approached both the accused and Nor Izuwan and they were both taken to the lobby lift again where SP3 found the same brown envelope (P39) on top of the parking paying machine. SP3 testified that at the material time, no one else was seen to have entered the lobby lift area from the parking area and at the lobby lift area. SP3 testified as follows: “Q; Dalam para 5 ini, kamu nyatakan selepas 2 minit, kamu nampak OKT1 dan seorang lelaki keluar dari lobi lif tersebut? Betul Adakah terdapat mana-mana individu atau orang lain masuk menggunakan pintu ke ruangan lif tersebut, selepas kedua-dua lelaki melayu ini masuk? tiada Dan adakah terdapat mana-mana orang atau individu yang keluar dari pintu ruangan lif tersebut, selepas kedua-dua lelaki ini masuk? tiada, YA.” No parking ticket or card was found with the accused and Nor Izuwan. According to SP3, the accused and Nor Izuwan looked anxious when SP3 found and opened the brown envelope (P39) in their presence. According to SP3, the brown envelope (P39) “dalam keadaan baik, tak koyak, di mana sampul tersebut macam dilipat dua dan diletakkan di atas mesin parking dalam keadaan baik” S/N DFfDmUyoOkyw9ozAojTG7w The accused led the police to the apartment he rented at the material time and the same type of drugs found in the envelope was found in the apartment. On chemical analysis, the drugs found in the brown envelope (P39) were concluded to be dangerous drugs namely Methamphetamine weighing 381.4 grams. [17] This Court is satisfied that there is no break in the chain of evidence regarding the exhibits. The identity of the exhibits was well established. This Court is satisfied further that the exhibits recovered by SP3 is the same exhibits sent to the chemist and subsequently produced in Court as evidence. There is no doubt that it was the same exhibits. [18] The other end of proof is to be formed by way of circumstances and inferences which must point irresistibly to the accused being charged for trafficking of the said dangerous drugs. [19] Possession of the dangerous drugs precedes the offence of trafficking. The prosecution needs to prove both the actus reus and mens rea to connote possession under the DDA. It is therefore trite that the prosecution must afford proof that the accused was in possession of dangerous drugs found in the brown envelope (P39) with knowledge of its existence and nature. [20] Based on the evidence adduced by the prosecution, this Court finds affirmatively that the accused was in direct possession of the dangerous drugs. This Court is satisfied that the accused was carrying the brown envelope (P39) at the parking area and had placed it on top of the parking paying machine at the lobby lift area. It was the same envelope. This Court S/N DFfDmUyoOkyw9ozAojTG7w is further satisfied that no one else could have placed the brown envelope (P39) on top of the parking paying machine. The accused was seen carrying the brown envelope (P39) before entering the lobby lift area and about two minutes later, he came out from the lobby lift area together with Nur Izuwan without the brown envelope (P39) with him. [21] It could safely be inferred that the accused had placed the brown envelope containing the dangerous drugs meant to be picked up by someone later. The fact that the same type and some other type of drugs were also found in the apartment rented by the accused shows that the accused had the power of disposal of the drugs found in the brown envelope (P39) because he had the custody and control of the dangerous found in the brown envelope (P39) in the first place. This Court is satisfied that the accused knew the nature of the dangerous drugs he possessed. Not only did the accused had the power of disposal over the dangerous drugs, from the circumstances of the case, he was also conscious of the dangerous drugs he possessed. It must be observed from the photographs taken of the accused and Nur Izuwan at the basement parking area (D54) extracted from the cctv recording, it was the accused who held the brown envelope (P39) at all times. [22] It could not be gainsaid that the accused and Nor Izuwan went to the lobby lift area to pay for their parking at the parking paying machine because no parking paying ticket or card was found with them. Further, it must be observed that there was no clear indication or suggestion from the cross-examination on behalf of the accused as to why the accused and Nor Izuwan had to walk to the basement parking area, entered the lobby lift area and later came out from the same without any parking ticket or card with them? It is the finding of this Court that the accused and Nor S/N DFfDmUyoOkyw9ozAojTG7w Izuwan had gone to the parking area not to pay for their parking. Instead they walked to the parking area at the basement to place the brown envelope (P39) containing the dangerous drugs on top of the paying parking machine situated at the lobby lift to be trafficked to a third person. [23] It is of the considered view that the police led by SP3 managed to confiscate the brown envelope (P39) before the third person arrived to pick up the drugs on top of the parking paying machine. [24] During cross examination on behalf of the accused, it was suggested that the brown envelope (P39) held by the accused could have been a paper bag containing food. The suggestion remained at that. It was not put to SP3 that the accused was indeed holding a paper bag containing food. That suggestion only came at the defence stage which this Court will elaborate further. In any event, this Court is satisfied that P39 is a brown envelope and not a paper bag. [25] There is nothing inherently improbable in the evidence of SP3 as the raiding officer. SP3 was cross examined extensively and his testimony remained intact and unshaken. His testimony must in the first place be accepted and there is nothing in his testimony for this Court to reject. SP3 is not an interested witness but merely a police officer performing his duty. [26] Pursuant to the leading authority on the law of possession of incriminating articles, including dangerous drugs (Chan Pean Leon v PP [1956] MLJ 237), this Court is satisfied that accused was carrying the brown envelope (P39) and had direct possession of the dangerous drugs in the brown envelope (P39). He had the power to deal with the dangerous drugs found in the brown envelope (P39) as the owner to the exclusion of S/N DFfDmUyoOkyw9ozAojTG7w all other persons. Further, it is the finding of this Court that the conduct of the accused looking anxious when SP3 found the drugs in the brown envelope (P39) is concomitant with an incriminating behavior and relevant under s 8 of the Evidence Act 1950 and it was not on all fours neutral. The accused was cautious of his possession of the dangerous drugs and from the facts and circumstances of the case, this Court is of the considered view that the animus possidendi (intention or mental element and actual possession or physical element) on the part of the accused of the dangerous drugs has been proven by the prosecution. As such this Court finds it safe to invoke the presumption of trafficking pursuant to s 37 (da) DDA on the part of the accused. [27] Upon maximum evaluation of the evidence adduced and the facts as well as the circumstances of the case, the prosecution has proven a prima facie case against the accused. The accused was called to enter his defence. Defence [28] At this stage, the burden remains on the prosecution to prove their case beyond reasonable doubt. The accused on the other hand has an evidential burden to raise reasonable doubt against the prosecution case. As stated by the Thompson J in Liew Kaling v PP [1960] 26 MLJ 306, proof beyond reasonable doubt does not mean any shadow of doubt and the law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. [29] Only the accused gave evidence at this stage. [30] In summary, the accused evidence are as follows: S/N DFfDmUyoOkyw9ozAojTG7w A week before his arrest, he rented the apartment at Dorsett Residence together with Darunee Kalabud and three days before his arrest, Nor Izuwan came to stay with them at the same place The accused instructed Nor Izuwan to park his car at the the parking area and the accused would wait at the lobby. Nor Izuwan brought along a luggage, a lap top bag and a few plastic packages. On the day of incident, Nor Izuwan woke the accused up from his sleep and requested the accused to accompany him to buy some rations and both of them walked to the parking area which was located beside Dorsett Residence. On the way to the parking area, the accused saw a stall selling food and bought some banana fritters and curry puffs packed in a brown paper bag [31] It is therefore uncontroverted that the incident took place at the parking area level B1a, Dorsett Residence Bukit Bintang, Jalan Imbi 55100 Kuala Lumpur. [32] It was also not disputed that the accused was at the same parking area with Nur Izuwan holding a brown envelope (which the accused claimed to be paper bag) and that they have walked to the lobby lift area together. It was not disputed further that both the accused and Nor Izuwan came out from the lobby lift area and that this time around the accused was no longer holding the brown envelope (P39). The evidence adduced by the prosecution that SP3 and his team went to the lobby lift area after apprehending the accused and Nur Izuwan and found the brown envelope S/N DFfDmUyoOkyw9ozAojTG7w (P39) containing the dangerous drugs on top of the parking paying machine remain intact. [33] However this time around, the accused was more specific; that there were banana fritters and curry puffs that he bought at a stall in the brown envelope that he was holding, when he and Nor Izuwan were on the way to the basement parking B1a. This line of defence was never suggested to the prosecution witnesses. At the prosecution stage, what was suggested was only to the fact that there could be a possibility the brown envelope (P39) could be a paper bag that contained food. The followings are the excerpts of the cross-examination of SP3 at the prosecution stage: “Q: Saya cadangkan pada kamu sampul coklat ni boleh jadi benda itu paper bag makanan? Beli kuih orang pakai paper bag? Tidak setuju YA Macam mana kamu boleh tau bukan paper bag makanan? Ataupun kamu tidak pasti? Saya kata sampul. Bukan beg. Jawapan saya itu adalah sampul. Tak ada benda lain. Adakah kamu tengok sampul tu macam sampul surat biasa ke? Atau sampul macam ada barang di dalamnya Saya tak pasti dalamnya tak nampak. Cuma saya nampak warna coklat dan dipegang dengan kemas. Possible paper bag makanan kamu tak setuju. Benda tu nampak macam sampul kamu, itulah saya nak kata, itu sampul surat nipis ke macam ada barang? Sampul tersebut tidak besar. Cuma cukup untuk tangan kita pegang. Bila kemas kena pegang macam ini, saya nampak dia pegang dengan kemas berwarna coklat, di S/N DFfDmUyoOkyw9ozAojTG7w dalamnya saya tak nampak. Tebal ke nipis saya tak pasti YA. Mintak maaf. Kamu tak setuju itu sampul makanan, setuju itu mungkin sampul surat yang dia baru terima? Tidak pasti” [34] The suggestion put at the prosecution stage revolves around what the brown envelope and the contents could be. It was never said or suggested that the accused had bought banana fritters and curry puffs put in a paper bag on the way to the parking area. The learned counsel for the accused had failed to cross-examine the prosecution witnesses as to the version now put by the accused at this stage. [35] The law is clear. Whenever the accused failed or declined to put or avail himself to the opportunity to put his essential and material case in cross-examination, it follows that the testimony of the prosecution witnesses cannot be disputed. To accept the accused’s version of defence at this stage would lead to a miscarriage of justice as the prosecution is now confronted with a new version of defence when the witnesses had completed their testimony and had no chance to meet the new version which was never put at the prosecution stage. [36] In evaluating the evidence of SP3 and the accused, this Court finds that no reasonable doubt is cast upon the evidence of SP3. SP3 and his team members saw the accused holding a brown envelope (P39) in his hands walking towards the lobby lift and minutes later, the accused came out from the lobby lift without the brown envelope in his hands anymore. SP3 then found the brown envelope (P39) on top of the parking paying machine at the lobby lift. S/N DFfDmUyoOkyw9ozAojTG7w [37] In examining the photographs extracted from the cctv footage (D51 (A-D)), this Court is satisfied that the accused was holding the brown envelope (P39) and not a paper bag. The way the accused was seen walking and holding the brown envelope (P39), cannot be gainsaid that he was holding a paper bag containing banana fritters and curry puffs because if indeed there were banana fritters and curry puffs in the brown envelope, they would have been scattered on the floor of the basement parking. The fact is, the brown envelope (P39) was seen to be folded and held tight by the accused when he was walking. This Court finds that the brown envelope (P39) was the same brown envelope held and carried by the accused and later found on top of the parking paying machine. The brown envelope (P39) contained dangerous drugs and not banana fritters and curry puffs. [38] The accused further testified that he and Nor Izuwan went to the parking area B1a and went to the lobby lift area to pay for the parking charges. However, no parking card or ticket were found with them. It is the finding of this Court that the accused went to the parking area not to pay the parking charges but instead he was there to place the dangerous drugs in the brown envelope (P39) on top of the parking paying machine to be trafficked by a third person. [39] It is of the considered view that the accused’s defence is not sufficient to cast reasonable doubt over the evidence adduced by the prosecution witnesses which unerringly pointed to the accused’s guilt. The accused failed to satisfactorily rebut the evidence of trafficking in the dangerous drugs adduced by the prosecution. This Court finds that the prosecution had successfully established a case beyond reasonable doubt against the accused on the charge preferred against him. S/N DFfDmUyoOkyw9ozAojTG7w Conclusion [40] The accused was therefore found guilty on the charge of trafficking dangerous drugs to wit 381.4 gram Methamphetamine. This Court proceeded to convict the accused on the charge so preferred against him. The accused was sentenced to thirty years (30) years imprisonment from the date of arrest and twelve (12) strokes of whipping. Dated: 26.12.2024 sgd [NOORIN BINTI BADARUDDIN] Judge High Court of Malaya Kuala Lumpur Deputy Public Prosecutor TPR Nik Mohd Fadli bin Dato’ Nik Azlan TPR Mohamad Shahrizzat bin Amadan Counsel for the accused Syed Amirul bin Syed Edros Messrs. Syed Azri Partnership (Bangi) S/N DFfDmUyoOkyw9ozAojTG7w