[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v INTAN ZUREANNA BINTI ROSLI (WA-45A-49-04/2022)

The accused is alleged as a drug trafficker, a woman of about age 46 years. She is married to Lele bin Mahmud. As she is female, the law stipulated in the Criminal Procedure Code (CPC/Act 593) accords her a fair treatment. She cannot be whipped pursuant to section 289 (a) of the CPC. Further, if she is pregnant with a child at point of conviction, she shall not be sentenced to death, pursuant to section 275 of the CPC. Pending trial, she is favoured with bail, as an exception is found in the proviso to section 388 (1) of the CPC, if she is charged with a non-bailable offence. But the offence of drug trafficking alleged to have been committed by her, is by its nature pursuant to section 41B (1) (a) of the Dangerous Drugs Act 1952 (DDA/Act 234) an unbailable offence. Therefore, she was remanded in prison pending trial. [2] This case pertains discovery of drugs, methamphetamine (meth) weighing 5340.77 grams in the boot of a car. The accused was driving a Toyota Yarris with registration no. YY 498 on 17.5.2021 at 12.00 p.m. which was the time of arrest. According to SP5, the investigation officer (IO) of the case, the car happens to be a family vehicle, and the accused was not the only person who has access to it, but also others including her husband Lele bin Mahmud.

ASP Syaari bin Ishak, SP4, who led the raid on the car had introduced himself to the accused and had asked her a few questions. It was all done impromptu without clear admission by SP4 that he had administered a caution to the accused before she renders any statement, being under arrest and physical restraint. Consequent to that, she led the police to back of the car. According to police, the accused opened the boot of the car and pointed to a locked brown bag (P15). She then took a bunch of keys located at the gear knob of the car and opened the bag. In that bag, the police had discovered 10 packages and 1 transparent plastic containing substance suspected to be dangerous drug under the DDA. (P16A to P23A, P26A). The accused was then arrested and all the items found at the scene of crime was seized. [4] As to the chain of custody of the impugned drugs, there exists no issue, as the chain of evidence, was intact pursuant to the evidence tendered by the prosecution, thus unbroken. The impugned drug picked up at the scene of crime was the same produced in court as proof of the offence against the accused. Same goes to the confirmatory evidence by the chemist who had confirmed that the impugned drug was meth and of the weight stipulated in the preferred charge against the accused. The sole issue which was left to be decided by this court is on the custody and control of the car, 4 inside which the impugned drugs were found. Therefore, the conveyance served as a container of the said impugned drugs. It is that pivotal issue which has got to be determined in order for this court to arrive at an affirmative finding of mens rea possession before the statutory presumption of trafficking pursuant to section 37 (da) (xvi) could be invoked against the accused. [5] The onus of proof is on the prosecution to exclude possibility of access to the car by other individuals, aside the accused and it is not for the accused to afford proof on that. (See the case of Abdullah Zawawi bin Yusoff v PP (1993) 4 CLJ 1). It is also the duty of the prosecution to dispel possibility of access by other persons over the car. Thus, it ought to adduce credible evidence to prove that only the accused has access to the car, although at point of arrest and raid, she was in control of the car when driving it which does not ipso facto render the accused to be in mens rea possession of the impugned drugs. [6] The photographs tendered as P48, at picture 4 and 5 shows two different pair of shoes, which was also found inside the car. The said shoes were sent to the chemist for DNA profiling. The DNA report, D51 shows that: • an unknown “MALE 1” DNA was found on one of the shoes marked as FR5. • there were at least DNA of three (3) individuals on the shoes marked as FR6. The presence of these shoes in the car and the fact that more than one DNA found raises doubt on the veracity of the prosecution narrative, in which it is clear the accused was not the only person who had access to the car. [7] The testimony of the investigation officer SP5, further fortifies the position of the accused, as when he was re-examined by the deputy public prosecutor (DPP) for and on behalf of the prosecution, testified that the car is a kenderaan penumpang. He explained, it means it could be accessed by more than one person, as it is considered to be a family car despite being owned by the accused. Therefore, it was not only the accused who has access to the car, but also other individuals, including her husband Lele bin Mahmud. That raises a reasonable doubt on the custody and control of the car inside which the impugned drugs were recovered. The doubt is the impugned drugs may belong to other individuals, including her husband, and not in the possession of accused. [8] The case against the accused proceeded only until the prosecution stage, at the end of which, this court had acquitted her from the charge of drug trafficking, without her having to enter on her defence. Basis and reasons for the decision follows.

This court at the end of case of the prosecution has to decide if the prosecution has successfully established a prima facie case against the accused, in order for this court to order her to defend herself to a charge preferred by the prosecution for an offence of drug trafficking pursuant to section 39B(1)(a) of the DDA punishable with death or imprisonment for life under section 39B (2) of the DDA. [10] A prima facie case in law pursuant to section 180(4) of the CPC has to contain proof on each and every ingredient of the offence of drug trafficking vide credible evidence by witnesses for the prosecution whom have offered testimony and tested under cross examination by counsel for the accused on the veracity and accuracy of the said testimony. [11] After the filtering process of cross examination, the net result of their testimony shall contain the following proof on the ingredients of the offence charged: • It is only the accused who has custody and control of the car she has driven at the material time of arrest and raid. • There is no evidence showing other individual or individuals having access to the car. • There has to be credible evidence, free from reasonable doubt, which is either direct, conclusive circumstantial or irresistible inferential evidence that the impugned drugs were found in the 7 car, and she has knowledge of its nature as dangerous drugs, for it to amount in law to be mens rea possession. • Mens rea possession of the impugned drugs has to be only with the accused and no one else, as she is solely charged for the said offence. • Any doubt on the mens rea possession has to be resolved in favour of the accused, since the burden and/or duty is bestowed on the prosecution to prove a case beyond reasonable doubt against the accused from the point of inception of trial till its conclusion. • If the case of prosecution leads to more than one inference, it has to be resolved in favour of the accused. • Since the impugned drugs are found in the car, which is deemed to be a conveyance containing and carrying the drugs, evidence of finger prints and/or DNA has to only point to the accused and no one else. If it points to anyone else, this court cannot hesitate to rule in favour of the accused, as the case of prosecution would be riddled with a doubt. [12] Ensuing from the above, the evidence tendered by the prosecution tested by cross-examination, points to the following: • The investigation phase of the case shows, the impugned drugs were recovered from the car and not found independently by 8 the raiding officer and his team, pursuant to their own investigation. • As soon as the accused was under physical arrest, she is supposed to have led to the opening of the boot of the car with the keys to a bag found in front of the car at the gear area, taken by the accused and handed over to the raiding officer. • All this outward conduct of the accused took place when she was under arrest. • Although such outward conduct of the accused is a relevant fact pursuant to section 8(2) of the Evidence Act 1950 (EA/Act 56) and the information procured and received from the accused leading to discovery of the impugned drug is admissible proof under section 27 of the EA, it has to cross the pivotal hurdle of compliance with section 37B (1) (b) of the DDA which affords formidable protection to the accused and shields her from abuse of power by the raiding party. One of such protection is that, as she was under arrest and physical restraint by the raiding party, any statement, be it verbal or in writing, has to precede a caution. It is mandated by the law. The caution to be administered prior to her statement or conduct, will assure her that she could remain silent and not tell anything to the raiding officer. • For section 27 of the EA to fit into its place, it is salutary that the accused had given information to the police which led to the discovery of the drugs. Before reception of the said information as evidence in court, the requisite caution pursuant to section 37B (1)(b) of the DDA must have been properly administered. That would ensure credibility and probity of the said evidence which is in fact received against the accused. To reiterate, it is also to avoid reception of such information as evidence, which was vulnerable to abuse by the police cum raiding officer. (See Pang Chee Meng v PP (1992) 1 CLJ 39). • Therefore, requirements under section 37B(1)(b) must be complied with. The stipulated caution under section 37B(1)(b) must be administered strictly, as the accused is already under arrest and he is deprived of his personal liberty. Any form of non-compliance will prejudice him, a fortiori when the said information is received after his arrest. • Adherence to the words used when administering the caution shall be exactly as contained in section 37B(1)(b) of the DDA or to its like effect. Secondly, the accused must be informed of the consequence of the caution. • For this court to believe that such caution has been administered pursuant to section 37B(1)(b), the raiding officer SP4 is expected to include in his police report in writing the exact words administered to the accused. By doing so the court would be able to scrutinize if the stipulation in the law has been complied with. • Moreover, the burden of proof is on the prosecution to prove that the said caution was properly administered. Hence, ▪ Mere reading of the caution is insufficient. ▪ The consequences of the caution must be explained to the accused. ▪ This is because the implication, when answers are given by the accused after the caution was read is crucial and it may incriminate the accused. [13] For the case at hand, there is no proof showing that a caution had ever been administered to the accused. It is not evidenced by the witness statement of SP4, the raiding officer as well as in P36, the arrest report, that he had in fact duly administered the caution as per section 37B(1)(b) of the DDA. Furthermore, the words used was not produced as evidence, be it vide oral or documentary. For SP4 to merely state he had complied with section 37B(1)(b) of the DDA is insufficient, as he has to inform the court, the exact words he had administered. There is also no evidence indicating that the accused had been informed of the consequences of the caution, upon it being 11 administered. Thus, pursuant to the same section 37B (1) (a) of the DDA the alleged information received from the accused is inadmissible as evidence. With that, the case of the prosecution falls, as that piece of information was the anchor of its case. Without that piece of information as evidence, the case of the prosecution is left with the evidence of SP4 and SP5, which seems to be a case of the car driven by the accused being the target and SP4 had prior information on the impugned drugs contained in that car, hence the arrest of the accused solely because she was driving the car at the material time. In the absence of the information, the mens rea ingredient of knowledge is negated on the part of the accused. [14] The present scenario during the investigation phase is bizarre, as the accused was supposed to have led the raiding team to the boot of the car and keys to the brown bag containing the impugned drug. There is no mention of such an instance in the search list which is supposed to be contemporaneous evidence, as it ought to have been made in situ stating that it was the accused who recovered the drugs from the boot of the car and handed it over to PW4. The search list merely states: • The brown bag was recovered from the boot of the car; • The keys to the bag were recovered from the gear area in the car; • The column which provides for the names of person who found the items is left blank. It is plainly contradictory to the version of PW 4 in court who had testified that it was the accused who had opened the boot of the car and that it was her who retrieved the key to the brown bag from the gear area of the car. [15] Evidence on these points are crucial, as the case of prosecution is anchored on it, pointing to knowledge of the impugned drugs contained in the brown bag, on part of the accused. Heavy reliance by the prosecution on the conduct of the accused at point of arrest, is preposterous, as at the highest it only serves to be a neutral piece of evidence, that the accused being a woman driving the car alone who was stopped by mainly male police officers, would have been afraid of them, hence for her conduct to be anxious and frightened. [16] What is amiss is the fact that the raiding officer to exactly target the car driven by the accused at the place and time, and the observation made is only for a short period of 20 minutes. It is also a fact that both the raiding officer (RO) and investigation officer (IO) in their witness statements at first instance mentioned of the existence of more than one suspect, (see paragraph 11 of SP4’s witness statement and paragraph 12 of SP5’s witness statement) aside the accused, although seemingly corrected later by them, the existence 13 of other suspects, is also fortified by the DNA revelation from the shoes found in the car. Aside that, the use of the car by husband of the accused is also not ruled out. [17] Crowning up the infirmity in the case of prosecution, is the fact that the investigation officer PW5 did not investigate into the existence and role of the husband of the accused Lele bin Mahmud who had access to the car used by the accused. He too did not investigate the identity of MALE 1 whose DNA was found on the shoes marked as FR5 as stipulated in the DNA report and also the identity of three

other individuals whose DNA were found on the shoes marked as FR6. [18] Further strengthening the doubt is the mode and manner by which the search and seizure list was prepared by the raiding officer (RO) after consultation with his superior officer. What is the necessity for such conference and consultation when the RO is in law supposed to detail the search and seizure in the seizure list in situ after procuring the items at the scene of the crime, including the impugned drugs. Such is also the law as provided for in section 31

of the DDA which renders the following: Any police officer … making an arrest under this section may seize and detain any package, receptacle and conveyance which he has reasonable grounds for believing is liable to forfeiture under section 30 or to detention under an order of the Court under section 38. Although there is no specific provision under the DDA for preparation of a search and seizure list, but in the practice of law enforcement involving drug offences, it is prepared. Cue is taken from the legal provision found at section 64 of the CPC which renders the following: A list of all things seized in the course of a search … shall be prepared by the officer … making the search and signed by him. However, in the present case, the search list was not prepared at the locus in quo and also not within a reasonable time frame. SP4 in his witness statement, had testified under oath that he had a discussion with his superior officer upon reaching office at about 1.30 p.m. Only after the discussion, and receiving orders, PW4 proceeded to prepare the search list. Therefore, only pursuant to the discussion between PW4 and his superior officer, the search list P34 was prepared, and not independently prepared by him. [19] In that respect, exhibits P34 and D41 are to be juxtaposed. It is glaring that items seized, including many keys as per D41 (a police report lodged by another police officer who had received exhibits from SP4, involving the same accused person) were not included in P34. PW4 had tried to bolster the narrative of the prosecution in order to rebut the version of the defence, by testifying he had written down all the seized items in his diary before preparing the search list at the office, but the said diary was never produced in court to support his testimony. That goes to the veracity and credibility of his investigation into the case of the accused. The doubt which arises is, if the items subsequently listed out in P34 could have been made solely to incriminate the accused. Such an inference drawn is fortified by the dictum of Raja Azlan Shah (as His Lordship then was) in the case of San Soo Ha v Public Prosecutor (1968) 1 MLJ 34 where it was decided that the search and seizure provisions must be complied with, to ensure that the incriminating articles obtained as a result of the search were recovered as alleged and leaves no room for doubt and to exclude the possibility of any concoction or malpractice of any kind. [20] The authority relied on by counsel for the accused is both pertinent and instructive and it applies on all fours to the facts and circumstances of the present case. It is the decision of our Lady Chief Justice in Thivasalim v PP (2013) 7 MLRA 476, as a JCA, where she has succinctly decided: It cannot be denied that the sweater (P64) and the T shirt (P66) were proximate to the drugs. The presence of the DNA on the sweater and the T Shirt recovered from the boot of the car established that at least two other individuals were connected to the car. It is the duty of the prosecution to exclude the possibility of other individuals as not having access to the car and/or have anything to do with the drugs and it is important for the learned Judicial Commissioner to ask herself whether anybody else had used the car before the arrest of the appellant. The learned Judicial Commissioner had not directed her mind to this aspect where it is imperative for the prosecution to exclude the possibility that other individuals could not have had custody or control of the car in order to prove possession (See Pang Chee Meng v PP (1991) 1 MLRA 608 and Abdullah Zawawi Yusof v PP (1993) 1 MLRA 416). (Emphasis is mine) In that case too, the impugned drugs were found in a car and only the accused was arrested, when another individual by the name of Azli had rented the car prior to the arrest of the accused, and not called as witness but only his police statement was tendered in court, hence the decision as above on the items found in the car together with the impugned drugs, pointing to the fact that there were other individuals who had access to the car and used it. The ratio decidendi of the case being, although Azli was not with the accused when the arrest took place, given the fact that Azli who rented the car; given that the possibility of Azli having the control and custody of the car had not been excluded and, given that there are other individuals who contributed to the DNA profile on the sweater and T-shirt, which were so proximate to the drugs, the production of Azli is, indeed an issue in the case, who could have explained as to the existence of the DNA profile on the sweater and T-shirt, and could have closed the gap in the prosecution case. Likewise, in the present case, although the accused was owner of the car and she had driven it at point of arrest and raid, but there were shoes found, its DNA pointing to other individuals who had access to the car too. Moreover, with the manner by which the search list P34 was prepared by SP4, it is apparent that the case is not one of discovery but recovery and the target by SP4 and his team was that particular car which was driven by the accused at the material time. Thus, it is the duty of the prosecution without any reasonable doubt to exclude the possibility of other individuals including the husband of the accused Lele bin Mahmaud, as not having access to the car and/or have anything to do with the drugs found inside it, prior to the arrest of the accused person. In the absence of which, there is a gap in the case of prosecution. [21] With all the evidence tendered by the prosecution which is not free from reasonable doubt, renders the case of the prosecution not established on credible evidence. There is a nagging doubt on mens rea possession of the impugned drug by the accused, before she could be ordered by this court to defend herself to the charge of drug trafficking preferred against her. This court is unable to arrive at an affirmative finding of possession of the impugned drug by the accused, before this court deals with the statutory presumption of trafficking which could be invoked against the accused, only if she is found in mens rea possession of the dangerous drugs, which is the subject matter of the charge. Following from that, this court is left without an alternative, but to acquit and discharge her of the charge. The accused is thus acquitted and discharged of the preferred charge of drug trafficking against her. [22] To iterate, the fault and infirmities in the case lies on the investigators of the case and not the DPP who is candid in presenting what is available, for this court to determine and decide accordingly. Accused acquitted and discharged. Dated 29 December 2024 Muniandy Kannyappan SGD Judge, High Court 2 (Criminal) Kuala Lumpur Parties DPP Nur Aqilah Ishak of the AGC for and on behalf of the prosecution. DC Amrick Singh Sandu, of Messrs. Naran Singh & Co for and on behalf of the accused.