[Pendakwa Raya] v Mahir Affandi Bin Mohamad (AA-45A-5-06/2019)

Mahir Affandi bin Mohamad (“the accused”), faced two charges under the Dangerous Drugs Act 1952 (“DDA”). One was for trafficking in dangerous drugs which carries very severe penalties if convicted, and the other for possession of dangerous drugs. He was caught at his home with the dangerous drugs found in his house. At the end of the prosecution case, I held that a prima facie case had been made out. The accused was called to enter his defence to both charges. As the sole witness for the defence, he testified on oath. At the end of his defence case, I found him guilty and convicted him on both charges.

He was sentenced to imprisonment for life and 15 strokes of whipping for the offence of trafficking in 2,828.60 grams of Methamphetamine. He was also sentenced to three years of imprisonment and three strokes of whipping for the other offence of being in possession of 5.19 grams of Methamphetamine. Both sentences of imprisonment are to run concurrently from the date of his arrest on 11.4.2017 and these are the grounds for the decision made.

In case no. AA-45A-5-06/2019 (“Trafficking Charge”) the amended charge (P4) against the accused for trafficking in 2,828.60 grams of Methamphetamine in its original language reads as follows: “Bahawa kamu pada 11 April 2017, jam lebih kurang 2.00 pagi, bertempat di rumah kakitangan No. L3-3, Jalan Besout 7, Felda Gunung Besout 2, Sungkai di dalam Daerah Muallim, Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya, iaitu sejumlah berat 2,828.60 gram Methamphetamine dan dengan itu, kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.

In case no. AA-45-1-02/2020 (“Possession Charge”) the charge (P2) against the accused in its original language reads as follows: “Bahawa kamu pada 11 April 2017, jam lebih kurang 2.00 pagi, bertempat di rumah kakitangan No. L3-3, Jalan Besout 7, Felda Gunung Besout 2, 920 Sungkai di dalam Daerah Muallim, Negeri Perak Darul Rizuan, telah ada dalam di dalam kawalan kamu berat bersih bahan 5.19 gram yang mengandungi dadah jenis Methamphetamine oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A(1) Akta yang sama. Hukuman : Penjara tidak kurang dari 2 tahun dan tidak lebih dari 5 tahun dan sebat tidak kurang dari 3 sebatan dan tidak melebihi 9 sebatan”.

At the time when the Trafficking Charge was read out to the accused on 20 June 2019, the mandatory sentence upon conviction was the death penalty or in limited circumstances under sections 39B (2) read with 39

DDA, imprisonment for life and whipping of not less than 15 strokes.

Understandably, as the two alleged offences took place at the same place and time, the two charges under the two cases were consolidated and tried together. Trial 7. The trial commenced on 4 March 2020. By reason of the several Movement Control Orders brought about by the COVID-19 pandemic the progress of the trial was impeded with 10 days of trial having to be vacated. Given the large number of exhibits required to be produced, It took two whole days just for the production, admission and marking of the huge number of packets of drugs. Altogether, other than seven witness statements, the consolidated case saw the production of 539 exhibits. Due to a personal tragedy involving one of the learned deputy public prosecutors, three days fixed for trial had to be postponed. And, on 28 February 2023 I was transferred to the High Court at Kuala Lumpur. This necessitated the re-adjustment of my diary for me to return to the High Court at Ipoh on certain days to continue with the hearing of this matter. It was finally concluded on 17 May 2024 after 17 days of trial. Prosecution’s case Burden of proof 8. The law demands that the prosecution has to make out a prima facie case against the accused at the end of the prosecution case, see section 180 (1) of the Criminal Procedure Code (“CPC”). If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.

The Federal Court in Balachandran v. PP [2005] 1 CLJ 85 at p 99, held that: “In order to make a finding either way the court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established. …The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case. As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt. However, it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s. 182A(1) of the Criminal Procedure Code. That would normally be the position where the accused has given evidence. However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt …”.

See also Looi Kow Chai & Anor v Public Prosecutor [2003] 1 CLJ 734, [2003] 2 MLJ 65, [2003] 2 AMR 89 (CA) where Gopal Sri Ram JCA (later FCJ) held that: “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 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”. Elements to be established 11. The elements required to be established by the prosecution for both the Trafficking Charge, and the Possession Charge are: i) that the items seized are in fact dangerous drugs; and ii) that the items were seized from the accused who has custody or control of these items and that he has knowledge that these items are dangerous drugs. Presumption 12. On the Trafficking Charge, as the quantum of the alleged dangerous drugs is large, the prosecution relied upon the statutory presumption housed in section 37 (da) (xvi) of the DDA to prove trafficking. The relevant part is reproduced hereunder: “(da) any person who is found in possession of –

(xvi) 50 grammes or more in weight of Methamphetamine; otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug”. Witnesses produced by the prosecution for the prosecution’s case 13. The following were the 12 witnesses produced by the prosecution: i) SP1 : L/KPL Jebli Keduka ii) SP2 : Antibiha binti Mokhter iii) SP3 : Noormizan bin Mohamad iv) SP4 : Mr. Gunalan Varatharajan (Chemist) v) SP5 : Mohd Jani bin Maidin vi) SP6 :Ishak bin Miskun vii) SP7 : KPL Mohd. Zaharudin bin Mohd Zain viii) SP8 : ASP Muhammad Aizat bin Ab Rahman ix) SP9 : Insp Amirul Fariz bin Apandi x) SP10 : Ms. Masnura binti Mukhtar (Chemist) xi) SP11 : D/Kpl Wan Muhamad Suhaimi bin Wan Muda xii) SP12 : Insp Maslina binti Md Annuar Salient facts leading to seizure of items The raid 14. Acting on information, on 11.4.2017 at approximately 2.00 a.m., SP8 led a team of police from the Bahagian Siasatan Jenayah Narkotik Daerah, Ibu Pejabat Daerah Muallim, Perak to carry out a raid. The team consisted of SP9 and SP11 together with Lance Corporal 177179, 191238, Constable 196728 and Constable 193603, and an officer from Balai Polis Trolak. They went to a house carrying the address No. L 3-3, Jalan Besout 7, Felda Gunung Besout 02, 35600 Sungkai, Perak (“the House”).

Upon reaching the House, SP8 knocked on the door. After a few minutes, the door was opened by a Malay man who identified himself as the homeowner (“the accused”). SP8 introduced himself as a senior police officer, showed his authority card, and explained the reasons for their visit. Following this, SP8 together with his team entered the house. Witnessed by other raiding officers, SP8 conducted a physical examination of the accused. He did not find any incriminating items on the accused.

SP8 then together with the accused, proceeded to a room near the kitchen and found a Malay man with a waist pouch on him sitting on the floor. This room is identified as Room 3. SP8 introduced himself as a senior police officer and asked for his personal particulars. He did not have his identification card but gave his name as Noormizan bin Mohamad (SP3) and his national registration identification number as 810509-08- 5305. Thereafter, SP8 examined a dark coloured sling bag carrying the words “FKR" (P12) which was on the floor. SP8 opened the bag in front of the accused and SP3. He dumped the contents onto the floor and found the contents comprised an identification card with the name of Mahir Affandi bin Mohamad, IC: 820122-08-6089 i.e. the accused. Upon further examination of the bag’s zipped compartments, the following was found: i) three transparent plastic packets containing powder / crystal lumps suspected to be Methamphetamine, a prescribed dangerous drug; ii) a transparent plastic packet containing (22) red pills labelled "WY" suspected to be a prescribed dangerous drug too; and iii) that the total weight of the suspected dangerous drugs was 8.9 grams.

SP8 and his team then took the accused and SP3 for inspection of the middle room of the house. This room is identified as Room 2. Whilst there, SP8 noticed the accused looking nervous and heard the accused saying he already knows what the smell is (NOE page 333 line 9547). The following are the results of the inspection: i) in Room 2 there was a white polystyrene box on the floor; ii) SP8 opened the lid of the polystyrene box in front of both suspects and found (90) yellowish packages in it; iii) each of the yellowish packages contained ten blue plastic packets; iv) in each of the blue plastic packets were red and green pills carrying the mark "WY" and suspected to be dangerous drugs; and v) the total weight of the 90 yellow packages is 20.3 kilograms.

Thereafter, SP8 seized all the incriminating items found. The items seized were noted down onto an inspection/seizure form that was signed by the accused and SP3 (P32). All the seized items were marked, documented, signed, and dated by SP8. A copy of the seizure form was served on the accused and SP3. Thereafter, both the accused and SP3 were arrested, and together with the items seized were brought to the police station at 3.30 a.m. on 11.4.2017. Chain of evidence - seizure of items to production in Court 19. The chain of evidence of the seized items was gathered through the evidence of SP8, SP9 and SP12. The narration of the evidence commences with SP8 saying he seized all the incriminating items from the House, put them in his car’s bonnet and left for the police station with the accused at approximately 3.00 a.m. This was confirmed by SP9 in his evidence (NOE page 335 line 9606 until 9610).

Upon arriving at the police station at around 3.30 a.m, SP8 marked, weighed, signed and dated all the seized items. Then at 4.45 a.m, he made a police report regarding the arrest and seizure of items (P29), before handing the seized items over to the investigating officer, Insp Maslina binti Md Annuar (SP12).

Upon receiving from SP8 the seized items (P30) at 7.00 a.m. and (P31) at 7.05 a.m, SP12 kept all the seized items in a locked metal cabinet in her office to which only she alone has access (NOE page 401 line 11555). On 13 April 2017, at approximately 8 a.m., SP12 brought all the seized items to a media conference at IPK Perak. Everything was under her supervision and she returned all the seized items back to the locked metal cabinet in her office at 11 a.m. the same day before delivering the seized items to the Chemist Mr. Gunalan Varatharajan (SP4) (P17) and Chemist, Ms. Masnura Binti Mukhtar SP10 (P35 & P36) on 14 April 2017 between 9.34 a.m. to 10.05 a.m. for a chemical analysis to be conducted.

The chemical analysis conducted by SP4 found that the items found in the polystyrene box and seized from Room 2 of the House of the accused is Methamphetamine weighing 2,828.60 grams (P18).

The chemical analysis conducted by SP10 found in the dark coloured sling bag and seized from Room 3 of the House of the accused is Methamphetamine weighing 5.19 grams (P35 & P36).

After analysing the drugs, SP10 returned the seized items for the Possession Charge along with her chemist report on 6 and 29 June 2017 (P37 & P38) to SP12. However, the form for the return of the items or “borang serah menyerah barang kes” was dated 14 August 2017 (P20). SP4 on the other hand, returned the seized items for the Trafficking Charge along with his chemist report on 18 December 2017 and the “borang serah menyerah barang kes” was dated 19 December 2017

On 21.4.2017, Noormizan Bin Mohammad (SP3) who was arrested was released as the police’s further investigation found that SP3 was not involved in the offences.

It is the prosecution's case that based on circumstantial evidence, the elements to make out a case under section 39B and section 12(2) of the DDA are satisfied. The accused had knowledge and possession of the 2,828.60 grams and 5.19 grams of Methamphetamine, a dangerous drug listed under the First Schedule of the DDA. And, due to the weight of the drugs, the statutory presumption under section 37(da) (xvi) DDA was invoked to satisfy the element of trafficking for the 2,828.60 grams of Methamphetamine found in Room 2. For the 5.19 grams of Methamphetamine found in Room 3, the element of possession has been made out. Issues raised by the defence at the end of prosecution’s case 27. At the end of prosecution’s case, the learned defence counsel raised the following issues.

The defence asserted that there is a break in the chain of evidence as there is an hour gap between 10 a.m. to 11 a.m. on 13 April 2017 where the drugs were unaccounted for, and therefore casting doubt on the identity of the seized items. The defence counsel relied on PP v Davood Nikzadeh Karim & Anor [2018] MLRAU 305 (CA) to state that it is the duty of the prosecution to make sure that there is no break in the chain of evidence. It is the defence’s case that the prosecution witnesses failed to account for the whereabouts of the drugs during this one-hour gap.

On the issue of the discrepancy regarding the colour of the drugs, whether it is red and green or red only, the defence relied on Yeong Kia Heng v PP [1992] MLRA 388 (SC) and stated that there is reasonable doubt on the identity of drugs. That SP8 failed to prove that the drugs produced in Court are the same drugs seized from the house as he only opened two packets A6 and A7 out of 90 packets found in the polystyrene box, and he never saw what was in other 88 packets.

Reliance was also placed by the defence on the case of Goh Ming Han v PP [2016] 5 MLRA 634 (CA) on the existence of SP2, who is the wife of the accused in that SP2 has equal access to and control of Room

Learned defence counsel also relied on Goh Ming Han (supra) on the issue that the accused was not in physical possession of the alleged drugs found when the police entered the house.

The learned defence counsel submitted that there is no element of willful blindness in this case as there is nothing from the evidence to indicate that the accused was in close proximity with the polystyrene box that contained drugs. And that it is normal for anyone to feel fearful being put in the accused’s position where his house is being raided by police officers in the middle of the night. Even SP3 admitted that he was also feeling anxious and scared during the raid.

Further, the learned defence counsel raised the issue on the number of packages of the drugs found in the sling bag. SP3 in his evidence stated that he only saw 3 packets while SP8 stated there were 4 packets in the inspection form (P32). There were also discrepancies on the date of incident where SP3 gave undisputed evidence of the raid occurring at approximately 10.15 p.m. of 10 April 2017 instead of 2 a.m. of 11 April 2017.

Therefore, the defence asserted, the prosecution has failed to satisfy all the requirements pursuant to section 180 of the CPC, and therefore, a prima facie case had not been made out. Analysis and decision of the Court at the end of the prosecution’s case

As is legally required, this Court proceeded to undertake a maximum evaluation of the prosecution evidence. After having done so, I found that prosecution has made out a prima facie case for the following reasons: i) The one hour gap in handling the drugs during the media conference on 13 April 2017 between 10 a.m. to 11 a.m. does not break the chain of evidence. There was no evidence that the drugs ever left the custody of SP12 during this one hour gap.. ii) To my mind, there is no doubt as to the identity of the drugs. Even though there is a discrepancy in the recollection of the colour of the pills found by SP8 compared to that recorded in SP4’s chemist report, I find that this discrepancy is not material as it did not affect the chemical make-up of the drugs seized and nor does it affect the witnesses’ credibility. A person’s perception of colour varies and judicial notice of the same has been taken. In Shanmugam a/l Ramalingam v PP (2017) MLJU 1893 (CA) it was held: “We were of the view that the discrepancies in the description of the color of the drugs is a matter of one's perception. SP1 perceived it as yellow in color whereas SP6 saw it as orange in color. None is contradicting each other because it concerned one's perception. Hence SP6 was correct when he said that he cannot explain the discrepancy between what he saw and what was perceived by SP1. It is beyond him to explain why SP1 perceived it as yellow in colour. Nevertheless, such differential perceptions is not enough to create a reasonable doubt upon the prosecution’s case, particularly in respect of the identity of the said drugs.” iii) The alleged discrepancies in the number of plastic packets in the sling bag as seen by SP3 and SP8 do not create enough doubt for the defence not to be called. From the narrative of events, SP8 has a clearer line of vision to the contents as he was the one who dumped the contents onto the floor of Room 3. When a police personnel gives evidence, his testimony must be first accepted. In Mohamed Ali v PP [1962] 1 MLJ 257, Thomson CJ held: “When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If he says he saw a cow jumping over the moon his evidence is, of course, not to be accepted, but if he says he saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of thing we all see every day of our lives) there is not the slightest justification for refusing to believe him. Of course if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a Police witness or not, who gives evidence on affirmation, should normally be accepted.” iv) The accused’s conduct by saying he could tell what the smell is of the drugs and was feeling nervous/fearful, which was noticed by the raiding officer SP8 is relevant and supports the prosecution’s case on proving knowledge. The conduct of the accused speaks for itself and plays an important part in the determination of the guilt. It is a corroborative piece of evidence, as stated by the Federal Court in Parlan bin Dadeh v Public Prosecutor [2008] 6 MLJ 19. Furthermore, His Lordship Zakaria Sam JCA in Public Prosecutor v Rudolf Tschernezow [2017] MLJU 215 (CA) held: “[41]… If the respondent was really innocent and did not know what was in his custody, there is no reason for him to be evasive and behaving nervously, when the identity of the drugs were yet to be identified. His conduct indicating his knowledge on the presence of the drugs and thereby he had a conscious sense of guilt.” v) Although it was also argued that the wife of the accused SP2 also had equal access to the room, however, the prosecution need not prove that the accused had absolute and exclusive access to the drugs. It is settled law that possession can be joint; vi) The defence had challenged the admissibility of the accused’s national identity card during his submissions at the end of the prosecution case. He asserted that only a photocopy of the identity card of the accused was produced. However, he could have forgotten that when the photocopy of the accused’s identity card was sought to be produced, he said he had no objections by saying “Tiada bantahan” (NOE page 261 line 7427) and thus this assertion is devoid of merits; and vii) Lastly, there is the issue of the charge being defective, where the defence argued that the date for the offence charged ought to be 10 April 2017 instead of 11 April

To my mind, this does not prejudice the defence because the raid was conducted late at night of 10 April 2017 and was completed only in the early hours of 11 April 2017 with the accused being present at all times. As stated in section 156 of the CPC: “156. Effect of errors No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by that error or omission.” This was further elaborated by Justice Colin Sequerah J. (as he then was) in the High Court case of PP v. Muhammad Khairuanuar Baharuddin [2021] 1 LNS 510 (HC) where His Lordship held: “[152] I do not therefore see how the time frame stated in the charge along with the other particulars stated therein gives rise to any prejudice to the defence of the accused. [153] Further, section 156 of the CPC states inter alia that no error or omission in stating the particulars in a charge shall be regarded as material unless the accused is misled by such error or omission. [154] It cannot be the case here that the accused was misled as he could and did in fact raise an alibi in this case. I find therefore that the accused was not misled as to the charge. [155] Under the circumstances therefore, there was no merit to the submission by the defence on this issue.”

Upon a maximum evaluation of evidence both oral and written provided under section 180 of the CPC I found that the prosecution had made out a prima facie case on both the Trafficking and the Possession charges. The accused was then called to enter his defence. In doing so, I informed the accused that premised upon the evidence led, the statutory presumption under section 37(da)(xvi)of the DDA is invoked for the Trafficking charge. Although the accused has the benefit of being represented by competent learned counsel who would have advised the accused of his rights and options, I had informed the accused that in entering his defence, he had three options namely: i. a right to remain silent; ii. a right to give unsworn evidence; or iii. a right to give sworn evidence.

The accused was also informed that irrespective of whichever option he chooses, he can lead evidence his defence. He opted to give sworn evidence. Defence’s case

During the continued trial, the defence called upon the accused (DW1) as the only witness. DW1 gave sworn evidence from the witness stand. His defence in summary is as follows:

For the Trafficking Charge: i) He strongly denies having knowledge of P16, the polystyrene box that contained the drugs in Room 2; ii) DW1 said that P16 was placed in Room 2 by SP14, who called a few days earlier requesting his assistance to store school canteen items in his House to which he had agreed; iii) DW1 was not made aware of when SP14 will arrive at the House to deliver his items. As SP14 refused to leave his items outside the house, DW1 then left his keys to the House in one of the shoes on the shoe rack outside the House; iv) It is the defence’s case that the accused had no knowledge of P16 and since the key to the house was left outside which SP14 had knowledge and access to, it is probable that it was SP14 who placed P16 in the House. Hence, based on the scenario presented at the defence stage, the defence counsel relied on PP v Iskandar Mohamad Yusof [2006] 2 MLRH 477 (HC) and asked this Court to re-evaluate the prosecution’s case as to whether the prosecution has successfully proved its case beyond reasonable doubt. (NOE page 495 lines 14347 to 14355 and Defence’s written submission page 5) v) It is also the defence’s case, relying on Abdullah Zawawi Yusof v PP [1993] 1 MLRA 416 (SC) that the onus should be on the prosecution to exclude access by others, and not for the defence to show possibility of access. vi) The defence asserted that the evidence of SP14 who was called by the prosecution as a rebuttal witness should be scrutinized with greater care as he is an interested witness. Therefore, it must be treated with caution and requires corroboration with reliance placed upon Magendran Mohan v PP [2012] 5 MLRA 333 (FC). The learned defence counsel in his written submissions asked this court not to accept SP14’s evidence as his evidence was:

not corroborated;

has elements of inherent improbabilities; and

has material discrepancies.

For the Possession Charge: i) The accused does not dispute to the ownership of P12, however he denies being in possession of the drugs found in P12. ii) It is the defence’s case that at the time of the raid, SP3 was present in Room 3 and that SP3 was in fact in closer proximity to the drugs than the accused who was arrested at the front door of the house i.e. he was away from Room 3, and that it was SP3 who could have placed those drugs into P12. iii) The defence also raised the issue of SP3 being an interested witness as he was arrested with the accused in this case. Court’s analysis and findings at the end of defence case 40. The defence’s case can be summarized as follows: a) The drugs in Room 2 which is the subject of the Trafficking charge belonged to SP14, whereas, the drugs found in Room 3 belonged SP3 who took the opportunity to place them in the accused’s sling bag (P12) when the accused was escorted to Room 2 by the police; b) The accused did not have knowledge of the drugs found in Room 2 and Room 3; c) The accused is not the sole person with access to the house because his wife, SP2 and 2 of his children lived in the same house and SP2 has access to Room 2 where the polystyrene box was found; and d) SP2 left the key to the house on the shoe rack to the house outside to enable SP14 to store his canteen items and SP14 would have been the person who had probably stored the polystyrene box of drugs in Room 2. SP3 AND SP14 41. As was held in Public Prosecutor v Alfian [2012] 2 MLJ 357 (CA), although the defence put the blame on two third parties, namely Noormizan (SP3) for the Possession charge and Syamsul Nizam aka Ijam (SP14) for the Trafficking charge, the critical issue is whether the accused was in possession of the dangerous drugs at the material time of he being detained as per the two charges. And, as per His Lordship, Abdul Malik Ishak JCA at para [72]: “what transpired before the arrest of the accused was not for the prosecution to prove. It was entirely up to the respondent to prove”.

In this case, the accused was arrested with the dangerous drugs in his House. In fact, the 5.19 grams Methamphetamine was found in his sling bag in Room 3 of his House, and the 2,828.60 grams of Methamphetamine in a polystyrene box in Room 2 of his House.

His story that SP3 has put the offending 5.19 grams of Methamphetamine drugs into his sling bag P12 which is admittedly his, whilst the police had brought him to Room 2 during the very short interval of time of 5 to 10 seconds when no one else was in Room 3 is incredible. I reject this unbelievable story for the following reasons: i) Under examination in chief, he said that he has two sling bags, one black (P12; P6A) and one dark blue (NOE page 488 line 14142). He said the black sling bag from which the police found the offending drugs had only contained an old charger for a phone whereas he uses the dark blue bag to keep his wallet which houses his identity card. He said that he took his identity card from his wallet from the blue bag and gave it to Inspector Amirul (SP9) who then kept it in his pocket. The blue bag was apparently placed on the table by a cabinet; ii) The weight of the following evidence points to the offending drugs and his identity card came from his black bag (P12): a) the black bag (P6A and ID12 which was later converted to P12) was identified by SP2, who was his wife at the time of the incident as the bag used by her husband, the accused, to keep his wallet when he goes out; b) ASP Muhammad Aizat bin Ab Rahman (SP8) the raiding officer who testified that he seized the sling bag (P12) from the floor in front of SP3 and upon checking this bag found the accused’s identity card, 3 packets of plastic containing drugs suspected to be Methamphetamine and a plastic packet containing 22 pills with the mark “WY” which is reddish green in colour (P6B) (NOE page 246 line 6965 to 6973); c) supporting evidence of SP3 who saw the police dump the things out from the accused’s bag (NOE page 52 line 555); and that d) under cross-examination, the accused admitted he has raised this issue of he having two sling bags only whilst he was giving evidence in court (NOE page 509 line 14770).

I find the accused’s story that SP14 (then aged 43) a Malay man who is not related to him or his wife, can freely enter his house on or about 10 April 2017 with the use of a set of keys left in the shoe rack outside his house, and in the process store the polystyrene bag containing the offending 2,828.60 grams of Methamphetamine which he claims to have no knowledge of to be incredible and beyond belief because: i) besides him residing in the house, are his wife, (SP2), a Malay and most probably a Muslim lady aged 32 years of age and their two young children, a boy aged five years and a girl aged two years; ii) it is incredible that a man, would allow another man whom he does not know well, who is not related, and whom his young wife and children do not know, to have free access to his house and in the process allow him to store things in his house; iii) over and on top of that is the added incredible story that he would allow a mere acquaintance to store goods without ascertaining exactly what when and where exactly the goods are to be stored in his house. The following extract of his self-serving and incredible answer from the cross- examination by the learned DPP (NOE page 514 line 14905) is telling: “S: Setuju kalua (sic) orang nak minta simpan barang, kamu perlu semaklah sama ada barang tersebut ada dihantar dan disimpan. Itu tanggungjawab seorang penghuni rumah? Tidak setuju.” iv) the dangerous drugs were in fact found in Room 2 where his children’s toys were kept. The door to this room cannot be locked, and is thus freely accessible to his two young children. Thus, that he would allow an acquaintance to freely go into his house and store things said to be things used to run a school canteen, and which may be dangerous to his two year old daughter and five year old son is incredible; v) he admitted that upon being confronted with the polystyrene bag by the police during the raid he did not tell the police it could be the goods of the acquaintance who is SP14 (NOE page 514 line 14930) when based on human conduct, one would expect him to do so immediately so to distance himself from the offending items, see section 114 of the Evidence Act 1950; vi) at one stage under cross-examination, he denied that his children’s toys were kept in Room 2 (NOE page 511 line 14831) although he had just a moment earlier said to the contrary (NOE page 511 line 14828). This denial is incredible because during his examination in chief (NOE page 493 line 14287) he volunteered the information that: “Bilik Kedua adalah bilik store yang menyimpan barang-barang seperti barang mainan anak saya, tilam-tilam lama, alat-alat membaiki kenderaan, satu kereta sorong dan lain-lain barang yang tidak digunakan.” vii) His wife (SP2) testified that Room 2 is used to store their children’s toys (NOE page 24 line 701) which directly contradict the accused’s story leading to the inference that he must have suddenly realized that his story about he allowing a stranger to walk in and store things where his young infant children have their toys would be akin to him saying that he saw the cow jumped over the moon; viii) in fact, defence counsel himself put to SP2 during cross-examination that Room 2 has her children’s toys (NOE page 46 line 1373) leading to the inference that the defence accepts that Room 2 was used to store the children’s toys; ix) SP2 admitted under her re-examination that she might have left her house keys at the shoe rack (NOE page 48 line 1409) before, unlike the story of the accused saying that she often misplaces her keys as to require a set to be always placed at the shoe rack to facilitate access. However, she was quite adamant that one set is normally with her at all times and one set with the accused; x) However, the accused agreed under cross-examination that there was in fact no necessity for the keys to be kept in the shoe rack. His evidence given under cross-examination bears reproduction (NOE page 517 lines 14996 to 15010): “S: Seterusnya setuju bahawa tidak ada keperluan untuk kunci disimpan di dalam kasut kerana kedua-dua kamu dan isteri kamu (SP2) masing-masing mempunyai kunci. Jika salah seorang tertinggal di pejabat atau hilang sebagai contohnya kamu atau isteri masih boleh menggunakan satu lagi kunci? Ya S: Setuju kalau saya katakan simpan kunci dalam kasut ini berbahaya. Kalau orang nak curi atau masuk ke dalam rumah boleh terus ambil kunci dari dalam kasut? Setuju. S: Jadi sebenarnya tidak betul cerita kamu semasa keterangan semalam yang menyatakan jiran sebelah rumah nama Kak Zana suaminya yang bernama Khairul, kawan-kawan kamu ada yang bernama Nan dan kakitangan kerja ladang, semua boleh keluar masuk rumah kamu? Ya.” xi) The accused agreed that besides his children’s toys, all the other items in Room 2 such as old mattresses, a wheelbarrow, and other things such as tools were for his usage. Thus, it is clear that Room 2 is one normally used by him save when SP2 cleans it which she did two or three days before the raid by the police and she said she did not see any polystyrene box in there; xii) the accused had given notice to the police in his cautioned statement of one Ijam (SP14) whose name is Syamsul Nizam bin Hashim, and who was called as a rebuttal witness. The police had investigated this Ijam. He was arrested and remanded for seven days before he was released on 20 April 2017 (NOE page 450 line 13015) after the police were satisfied that he has nothing to do with the polystyrene box of drugs found in Room 2; xiii) Learned counsel for the defence has put up persuasive submissions that the testimony of SP14 is riddled with irrational answers and is not credible. I agree. Even though I had administered a section 132 Evidence Act 1950 warning him on two occasions (NOE page 556 line 16155 during cross-examination of SP14 on 25 August 2023 and at page 568 during cross-examination of SP14 on 19 January 2024) telling him that any answers given by him that may incriminate him cannot be used against him and his duty is to tell the truth, SP14 maintained that the drugs were not placed therein by him. Thus, for the defence to say that it would be suicidal for SP14 to admit that the drugs were placed in Room 2 by him is devoid of merits; and xiv) in any event, even if for one moment it is accepted that it could be true, which I do not accept, that the drugs had been placed in Room 2 by SP14, after having given a maximum evaluation to all the evidence, I find that the accused knowingly and willingly allowed the polystyrene box of dangerous drugs to be placed in his House despite the highly and obvious suspicious circumstances in SP14 allegedly wanting to store his parents’ school canteen items in his House and allowing him to do so allegedly without ascertaining what they are and without his personal supervision. This, he must have done to deny knowledge. This would be a classic case calling for the application of the doctrine of wilful blindness against the accused, see Maria Elvira Pinto Exposto v Public Prosecutor [2020] MLJU 361; [2020] 3 MLJ 21 (FC) where the Federal Court explained the doctrine of wilful blindness as follows: “[41] The law only requires the accused to inspect or enquire when reasonable cause for obvious suspicion arises, and if the accused takes no step or effort to dispel this lingering suspicion then he or she is presumed to have known and accepted the risk of that suspicious endeavour. The facts of this case do not warrant the application of the doctrine of wilful blindness to the appellant. The appellant could not be said to have shut her eyes to the obvious when there was nothing or even remotely suspicious to begin with. [42] In Tan Kiam Peng v Public Prosecutor [2008] 1 SLR 1 it was held: … wilful blindness was treated as the legal equivalent of actual knowledge. To establish wilful blindness, there had to be the appropriate level of suspicion that led to a refusal to investigate further. If controlled drugs were slipped into a respondent person’s bag without his or her knowledge, no offence under the Act would have been committed. On the other hand, if a respondent knew that he or she was carrying controlled drugs, merely inquiring as to the nature of the drugs might not be sufficient. If the respondent chose to assume such a large risk by trafficking drugs without establishing the true nature of the drugs he or she was carrying, this was wilful blindness. [43] In R v Sansregret [1985] 1 SCR 570, the Supreme Court of Canada observed: The rule that wilful blindness is equivalent to knowledge is essential and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining the knowledge.” SP2 45. During the cross-examination of the wife of the accused (SP2), it was suggested to SP2 that she has access to the polystyrene box of drugs and the drugs could have been stored by her. She denied it.

To my mind, the case of Nagalingam P. Vellupillay [2015] 3 MLJ 92 (CA) gives a clear answer as to the issue of possession in this circumstance. His Lordship Abdul Wahab Patail JCA at paragraph 25 stated: “[25] Thus, that fact of non-exclusive possession does not negate guilt. Even if the submission that the appellant did not have exclusive access and control because his wife also had access were accepted, it would only mean on the facts of this case that they both had joint possession. The High Court considered the defence that the appellant’s wife, SD2 had access and held: The court also believed and accepted the evidence of PW2 that he had taken the plumber to the premises to repair the plumbing upon a complaint lodged by the accused and he had seen the accused in the premises. PW2 did not see the accused’s wife and step children in the premises. The police also did not find any personal belongings of the accused’s wife and two step children in the premises. Hence the accused’s version that they had stayed with him in the premises before they had moved to their present address could not and might not have been reasonably true. It was more likely that if they were staying there it was in the month of October as testified by PW3. Be that as it may, at the time of the police raid at the premises the accused’s wife and his two step children were not residing in the premises. The photographs taken at the premises showed that the kitchen was devoid of any kitchen equipment, cooking utensils, crockery and cutlery. [26] There was no evidence of access at the material time to the room let alone the substances containing the dangerous drugs by SD2. Her access to the drugs is purely speculative.” [Emphasis added]

The access of SP2 to Room 2 in the house at its highest is one of joint possession of the drugs. It does not negate the accused’s possession and guilt.

It was also put to her that she (SP2) would say anything to save herself by saying that she has not seen or have any knowledge of the box of drugs. I find such a suggestion to be a desperate act on the part of the accused to try to save himself to the extent of suggesting that it was his wife who has stored the box of drugs in his house in Room 2 without his knowledge. In fact, I find SP2 to be a credible witness. She gave pointed and direct answers to questions posed.

I refer to the following decision of Her Ladyship Evrol Mariette Peters J in the case of Jelas Kurnia Sdn Bhd v Loh Yuen Seng [2020] MLJU 514 (HC), although a civil case, on the assessment of the credibility of a witness to be instructive: “[56] Credibility concerns the opportunities for a power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers: Kwang Boon Keong Peter v PP [1998] 2 SLR

[57] I find instructive the words of Gillen J in Sean Thornton v Northern Ireland Housing Executive [2010] NIQB 4 which was adopted in McAllister v Campbell [2014] NIQB 24: [12] Credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence. [13] In assessing credibility the court must pay attention to a number of factors which, inter alia, include the following: i. The inherent probability or improbability of representations of fact ii. The presence of independent evidence tending to corroborate or undermine any given statement of fact iii. The presence of contemporaneous records iv. The demeanour of witnesses e.g. does he equivocate in cross examination v. The frailty of the population at large in accurately recollecting and describing events in the distant past. vi. Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication vii. Does the witness have a motive for misleading the court viii. Weigh up one witness against another [58] It must be borne in mind that in the Privy Council case of Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386, PC, it was observed by Sir George Farwell, in addressing the credit of a witness upon cross-examination, ‘everything depends on the judge’s belief or disbelief in the witness’ story.’” [Emphasis added]

Although, she (SP2) said that it was possible that she had left a set of keys at the shoe rack, I find that this would not by itself lead to the probable situation of her allowing someone else to gain access to store things in her house. In fact, it was never put to her that by leaving the keys at the shoe rack, it meant that it was to facilitate access for someone else to store things in her house.

Having given a maximum evaluation to the totality of the evidence, I find that the accused’s defence that he has no knowledge of the existence of the huge amount of drugs placed in Room 2 of his house to be incredible and an imaginary one. See PP v Saimin & Ors [1971] 2 MLJ 16 where His Lordship Sharma J said: “The following definition of "reasonable doubt" is often quoted: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." It has again been said that " 'reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there." Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence.”

In other words, the defence has failed to discharge the onus of rebutting the statutory presumption of trafficking under section 37 (d)

(xvi) of the Dangerous Drugs Act 1952 for the Trafficking charge under AA-45A-5-06/2019 on a balance of probabilities and that of raising a reasonable doubt for the Possession charge under AA-45-1-02/2020. Conclusion

Wherefore, having considered all the evidence adduced and the submissions presented both in writing and orally, I found that the defence has failed to rebut the factual finding of possession that attracts the statutory presumption of trafficking of the 2,828.60 grams Methamphetamine under section 37(da) (xvi) of the DDA for the Trafficking Charge.

I also found that the defence failed to raise a reasonable doubt on the factual finding of possession of the 5.19 grams Methamphetamine under section 12(2) of the DDA for the Possession Charge.

Wherefore, I had proceeded to find the accused guilty of both charges and convicted him on both charges on 17 May 2024.

Prior to sentencing, the following oral submissions were presented by learned counsel for the defence on 17 May 2024 by way of mitigation: iv. the accused is currently 42 years of age; v. prior to his arrest he was a supervisor at the Felda Besout and had been detained for 7 years one month as from the date of his arrest on 11 April 2014; vi. he has two dependent children, one aged 11 and one aged 9 who were looked after by his former wife (SP2) who had divorced him when he was remanded and his former wife has since passed away on 29 January 2024 due to illness and his children are now looked after by his former mother-in-law; vii. this is his first offence and as from the date of his arrest he is remorseful of what he had done and undertakes not to commit any other offences; and viii. that for the Trafficking charge, he be sentenced to imprisonment for life with minimum whipping pursuant to the Abolition Of Mandatory Death Penalty Act 2023 Act 846. Reliance was placed upon the case of Pendakwa Raya v See Eng Hooi [2023] MLRHU 1693 where the accused was convicted of trafficking 9601.1 gram of Methamphetamine and was sentenced to imprisonment for life with no whipping as the accused is more than 50 years old.; ix. that for the Possession Charge, that a minimum sentence be imposed as the amount of drugs is just slightly above the amount provided under section 39A

(r) of the DDA of 5 grams but less than 30 grams; and x. that if a sentence of imprisonment is imposed, he prays that the sentence of imprisonment be carried out concurrently from the date of his arrest of 11 April 2017 because: a) he was arrested on the same date; b) at the same time; c) at the same place; and d) with the same type of drugs.

The prosecution on the other hand sought for the death penalty to be imposed for the Trafficking Charge for the following reasons: xi. pubic interest overrides the personal interest of the accused and trafficking of dangerous drugs is a very serious offence with Methamphetamine being a drug that is very dangerous as it is highly addictive as can be seen in it being widely used by drug addicts; xii. the amount of dangerous drugs of 2,828.60 grams is very large; xiii. although the conviction is premised upon a statutory presumption, due to the large amount of dangerous drugs, it must be for sale and trafficking and not for personal consumption or trafficking on a small scale; xiv. the effect of dangerous drugs on users is grave and would impair their health; xv. the accused had not been remorseful and instead had tried to implicate SP14 and I would add his former wife (SP2) and this shows that the accused was desperately trying to exculpate himself by whatever means; xvi. although the Abolition Of Mandatory Death Penalty Act 2023 Act 846 gives the Court a discretion not to impose the death penalty, it must be exercised judiciously and in this case, a full trial had to be conducted with witnesses called taking up much judicial time and government or public money; xvii. although the trafficking offence was committed before the Abolition Of Mandatory Death Penalty Act 2023 Act 846 came into force, the accused could have considered changing his plea once this Act has come into force on 4 July 2023 but he did not and thus the discretion ought not to be exercised in his favour; and xviii. the discretion not to impose the death penalty ought to be exercised only in cases where the accused had pleaded guilty and this Court is not bound by the case of Pendakwa Raya v See Eng Hooi (supra).

As for the Possession charge, for similar reasons, the prosecution asserted that a heavy sentence of imprisonment and whipping ought to be imposed because: xix. it has to be borne in mind that it involved the same type of dangerous drugs which is Methamphetamine which is very dangerous; and xx. that the sentence has to teach the accused a lesson and a reminder to the people at large because dangerous drug trafficking adversely impacts on the productivity of the country.

From the records available to the prosecution, the accused has no record of having been previously found guilty and convicted of any offences. Sentencing 60. For the conviction on the charge of trafficking under case no. AA- 45A-5-06/2019, Sec 39B (2) of the DDA read together with sections 54 and 55 of the Abolition Of Mandatory Death Penalty Act 2023 Act 846 which came into force on 4 July 2023 as gazetted vide P.U. (B) 229 provides that a person convicted shall be sentenced to death or to imprisonment for life and shall if he is not sentenced to death, be punished with whipping of not less than 12 strokes.

I disagree with the prosecution that I ought not to exercise my discretion to sentence the accused to imprisonment for life and instead ought to impose the death penalty because the accused had not pleaded guilty when the Abolition of Mandatory Death Penalty Act 2023 Act 846 came into force. There is no such provision in Act 846 which say so and I will not read such a provision into the Act 846 as to curtail the discretion given to the Court. Every accused is entitled to due process and to call upon the prosecution to prove its case, more so, when faced with a charge for an offence which could lead to him or her being sentenced to death.

In my considered view, our society’s abhorrence for the ill effects of the offences of trafficking and possession of dangerous drugs is already reflected by the minimum long periods sentences for imprisonment that have been enacted with whipping, and with the possibility of imprisonment for life with mandatory whipping of not less than 12 strokes, and even the possibility of the death penalty being imposed.

After considering the plea of mitigation and the submissions by the learned deputy public prosecutor, and after taking into account the recent cases emanating from the Court of Appeal after the coming into force of the Abolition of Mandatory Death Penalty Act 2023 Act 846 which in the vast majority of cases steer away from imposing the death penalty unless the amount involved is large, I sentence the accused to a sentence of imprisonment for life and whipping of 15 strokes. The additional three strokes above the statutory minimum of 12 strokes is because of the large amount of dangerous drugs of 2,828.6 grams of Methamphetamine in this case. This amount is 56.5 times more than the minimum amount of 50 grams of Methamphetamine sufficient for the statutory presumption of trafficking to be invoked with the accused facing the possibility of a death penalty.

From my research, a summary of the cases from the Court of Appeal on sentencing is set out hereunder: i) Soo Ting Yu v PP [2024] CLJU 20 (CA) – 1687.1 grams of Ketamine – death sentence was commuted to 30 years’ imprisonment with 12 strokes of the cane as there were strong mitigating factors which did not warrant the death penalty. ii) Lee Sheue Ning v PP Other Appeals [2024] MLRAU 137 (CA) – 77.8 grams (Heroin + Monoacetylmorphones) and 1517.3 grams Methamphetamine – death sentences for both the accused were set aside and commuted to 30 years imprisonment. As section 289 of the Criminal Procedure Code provides that females and males above the age of 50 shall not be whipped, both the accused in this case were not sentenced to be whipped. iii) Mahendran a/l Thiyaga Rajan v PP dan satu lagi rayuan [2024] MLJU 1095 (CA) - 9,575.35 grams Cannabis;

222.69 grams (Heroin 190.53 grams + Monoacetylemorphines 32.16 grams) and 372.95 grams Methamphetamine – death sentence of both accused were set aside and substituted with imprisonment of 30 years for both accused from the date of arrest and whipping of 12 strokes for each offence subject to the maximum of 24 as prescribed by section 288 (1) of the Criminal Procedure Code i.e. life imprisonment plus 24 strokes for each of the two accused; iv) Chui Kah Fai v PP [2024] MLJU 1104 (CA) - 7,296.7 grams of Methamphetamine. At the Court of Appeal, the defence accepted the prosecution offer to commute the death sentence to one of life imprisonment and was sentenced to life imprisonment with whipping of 12 strokes; v) Kovinda Samy a/l Thevarayan v PP [2024] MLJU 749 (CA) - 103.9 grams (69.3 grams Heroin dan 34.6 grams Monoacetylmorphines) – death sentence substituted with imprisonment for life from date of arrest with 12 strokes of whipping; vi) Seyedmohsen Namazivaj Seyedreza v PP [2024] 2 MLJ 950 (CA) - 48,623 grams of Methamphetamine. The Court of Appeal after considering the element of public interest, the enormous quantity of the drugs manufactured, the mitigation by the learned counsel on behalf of the three accused persons and the call by the learned deputy public prosecutor to impose the death penalty, found that the aggravating factors outweigh the mitigating factors and the sentence of the death penalty meted out by the learned trial judge on all the three appellants was affirmed; and vii) Loo Yong Heng v PP [2024] 3 MLJ 359 (CA) - 183.14 grams of Methamphetamine – death penalty set aside and