[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v ISLAM RABEA MOHAMED ISMAIL ELBANNA (WA-45A-36-03/2022)

The Accused was charged with one count of trafficking dangerous drug i.e Cannabis, one count of possession of Cannabis and one count of possession of Methamphetamine under the Dangerous Drugs Act 1952.

At the conclusion of the trial, this Court had found him guilty, convicted him and sentenced him to life imprisonment from the date of arrest, and 12 strokes of the rotan for the first charge, and 2 years imprisonment for the second and third charge respectively.

Dissatisfied, the Accused had filed an appeal to the Court of Appeal.

Herewith are the Grounds of Judgement for the decision.

On 25.8.2021 at 1:55 p.m, Inspector Prabu (SP5) who was leading a team of Police personnel from Narcotic Department of Kuala Lumpur Police Contigent (IPK) had stopped the Accused at the stair case of a shop building in front of Restaurant Woons Mastery, Lorong Thambi Dollah, Off Jalan Thambi Dollah, 55100 Kuala Lumpur. Thereafter, SP5 conducted a search on the Accused person and found a blue bag named “Samsung” held by the Accused on his left hand. SP5 then confiscated the bag and a bunch of keys (4 altogether) held by the Accused on his right hand and an Iphone handphone.

Upon conducting a search on the contents of the “Samsung” blue bag (P24), SP5 found the following: (1) packet of dried compressed leaves, (big) which was later confirmed as Cannabis wrapped with cellophone tape (P10A) (gross weight of 975 grammes) and another

packet of the same in another small bag (P10B) (gross weight 220 grammes). [7] Thereafter, the Accused brought SP5 and his team to his Unit at Level 11, re 11-03. SP5 found the grill and the wooden door opened. The Accused then brought SP5 and his team to the first room on the left. Using the keys confiscated from the Accused, SP5 managed to open the door to the room. [8] A search was conducted and SP5 and his team found 2 packets of compressed leaves which was later confirmed to be Cannabis (P15A and B) and 4 packets containing drugs which was later confirmed to be Methamphetamine (P16 (1-4)). [9] Further inspection of the room, SP5 found personal documentations pertaining to the Accused, i.e his personal passport, a visa document under his name, 1 Student Pass under his name, 1 pair of long sleeve shirt (P29) and a colorless shirt with a print of a woman’s face on the reverse side (P30). [10] SP5 then seized all of the aforesaid items (seized drugs) and personal items and brought the Accused and the seized items to the office. [11] After he had completed all the documentations, SP5 then handed over all the documentations, seized items and the Accused to SP7 who was the Investigating Officer of this case. [12] On 14.12.2021, SP7 sent all the seized drugs (P21 to P25) to the Chemist for analysis. On analysis, the Chemist (SP3) found the drugs, found in the “Samsung” bag to be 1,127 grammes Cannabis and those found in the room as 5.98 grammes Cannabis and 1.90 grammes Methamphetamine respectively. The Defence version put during Prosecution’s case [13] The Defence at Prosecution’s stage had put to the Prosection’s witnesses their defence i.e that the drugs were not found on the hands of the Accused. The Accused was set up by the Police. The drugs belonged to one, Fateh. Fateh is not a fictitious character. Fateh stayed in the same block at Level

Fateh’s existence was already informed to the investigators and is manifested in the Accused’s cautioned statement. [14] The Defence reiterated that the blue plastic bag (P24) containing the drugs did not belong to the Accused but to Fateh who threw it outside upon knowing the Polices were coming to his Unit. The Police team then picked them up and used it against the Accused. [15] As such the Accused argued that the Prosecution had failed to prove a prima facie case as the Prosecution failed to attain the required standard and threshold to prove a prima facie case. Amongst others were that Fateh was not called by the Prosecution and hence has created a gap in the Prosecution’s case. Put it in another fashion, the investigation was not complete. Further, whilst 2 handphones were picked up from the Accused, however no investigations were made on the contents of both phones especially the WhatsApp communications, hence there was also a suppression of evidence. C. THE CHARGES [16] Pertuduhan (“P4A”) Bahawa kamu pada 25 Ogos 2021 jam lebih kurang 1.55 petang, di kawasan tangga bawah sebelah bangunan kedai beralamat No. 11, Lorong Thambi 2 Off Jalan Changkat Thambi Dollah, dalam daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur, telah mengedar dadah berbahaya iaitu 1,127 gram Cannabis dan dengan itu, kamu telah melakukan satu kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B

Akta yang sama. Hukuman: Jika disabitkan kesalahan hukumannya adalah hukuman mati atau hukuman penjara seumur hidup. Jika tidak dihukum mati, boleh juga dihukum penjara seumur hidup dan sebatan tidak kurang 15 kali sebatan. [17] Pertuduhan (“P4B”) Bahawa kamu pada 25 Ogos 2021 jam lebih kurang 2.15 petang bertempat di Bilik No. 1, Unit 11-3, Lorong Thambi 2 Off Jalan Changkat Thambi Dollah, dalam daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur, telah ada dalam milikan kamu dadah berbahaya iaitu Cannabis seberat 5.98 gram, dan dengan itu, kamu telah melakukan satu kesalahan di bawah Seksyen 6, Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen yang sama. Hukuman: Denda tidak melebihi RM20,000.00 atau penjara tidak lebih 5 tahun atau kedua-duanya sekali. [18] Pertuduhan (“P4C”) Bahawa kamu pada 25 Ogos 2021 jam lebih kurang 2.15 petang bertempat di Bilik No. 1, Unit 11-3, Lorong Thambi 2 Off Jalan Changkat Thambi Dollah, dalam daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur, telah ada dalam milikan kamu dadah berbahaya iaitu Methamphetamine seberat 1.90 gram, dan dengan itu, kamu telah melakukan satu kesalahan di bawah Seksyen 12 (2), Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 12 (3) Akta yang sama. Hukuman: Denda tidak melebihi daripada RM100,000.00 atau dikenakan hukuman penjara selama tempoh tidak lebih 5 tahun atau kedua-duanya sekali. D. ANALYSIS AND FINDING OF THIS COURT

At Prosecution’s Stage/Prima Facie [19] To prove a prima facie case, the Prosecution has to prove the following ingredients (for the first charge of trafficking):

The Accused has custody and control and knowledge of the drugs in his possession (mens rea possession).

The drugs are dangerous drugs as listed in the Act with the specified weight (as in the charge).

Based on the weight, the Accused was presumed to be trafficking the dangerous drugs (the presumption under Section 37 (da) was triggered). [20] For the other 2 charges of possession, only the first 2 ingredients have to be proven i.e (a) and (b) only. [21] In Chan Pean Leon v. Public Prosecutor [1956] CLJU 17; [1956] 1 LNS 17, Thompson J went on to state as follows: “Possession” itself as regards the criminal law is described as follows in Stephen's Digest (9th Ed), p 304): “A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.” [22] It is the duty of the Prosecution to prove that the Accused had custody or control and knowledge of the drugs. Direct evidence on knowledge is very difficult to come by. Invariably the Prosecution has to rely on circumstantial evidence like the conduct of the Accused looking worried, panicked, trying to flee/abscond etc, (see Parlan Bin Dadeh [2008] 6 MLJ 19 (FC). Others include deliberate concealment to avoid detection from the authorities eg. suitcase with false bottom, drugs concealed inside “MILO” packaging etc. Put it in another way, it is trite law that proof of knowledge is very often a matter of inference from the surrounding circumstances. [23] As the drugs were found in the blue “Samsung” bag held by the Accused and the Accused was alone at that material time, and upon maximum evaluation, and based on the various renowned authorities, such as Balachandran v. PP [2005] 2 MLJ, Looi Kow Chai & Anor v. PP [2003] and PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457, this Court has found that the Prosecution had successfully proved that the Accused has custody, and control, and knowledge of the drugs (mens rea possession). Knowledge can be inferred from the surrounding circumstances since the drugs can be easily seen. Further the other drugs (P15) and (P16) were found following his act in bringing the Police to his room, whereby he himself has access to the drugs (see Section 8 of the Evidence Act). Further he himself has admitted that drugs in P15 and P16 were his. For the drugs in the “Samsung” bag (P10A and P10B), as their weight were above the statutory limit as confirmed by the chemist, hence the presumption of trafficking was triggered. Hence, a prima facie case was successfully made out for all the 3 charges and the defence was ordered to be called. [24] The fact that it was the Accused who brought the Police to his room where drugs were found, in itself shows that the Accused knew about the drugs. The founding of those 2 drugs also lend credence to the fact that the Accused had dealt with drugs before. The other inference that can be drawn is that the drugs found on his person (in the blue “Samsung” bag) must have originated from his room.

Defence’s Case [25] 2 witnesses testified under oath i.e the Accused and his friend SD2. Essentially the Defence case was a denial. The defence version was at great divergence with that of the Prosecution’s version. It was the Defence case that the drugs found in the blue “Samsung” bag was not carried by the Accused. According to the Accused, the blue “Samsung” bag containing the first charge drugs (P24) were not his. It belongs to Fateh who stayed at Level 1 of the same block. The Accused had brought the Police team to Fateh’s room. On knowing this, Fateh had thrown the blue “Samsung” bag out of his room. The Police team then took the bag and claimed that the blue “Samsung” bag belonged to the Accused. Fateh had thrown down the bag (P24) upon his Unit being raided by the Police. The Police had picked up the bag (P24) and gave to him. Put it in another fashion, the Accused was framed. The Accused has called SD2, his close friend to corroborate his evidence. However, SD2’s evidence was just to confirm that when he and the Accused came out of the Accused’s Unit downstairs. The Accused was not carrying anything including the Blue “Samsung” bag. [26] However, the Accused admitted the 2 other packets of drugs found in the Unit (P15 and P16), are his.

Whether the Accused has possession of the drugs.

Custody/Control [27] It was in evidence that based on the evidence of SP5, when the Accused was arrested he was alone and was holding the blue “Samsung” bag (P24) in his hands. This was supported by the evidence of the Police Report SP5 made (P21) and the search list P22. [28] This in itself shows that the Accused has custody and control of the blue “Samsung” bag (P24) containing the drugs.

(ii) Knowledge [29] It is trite that direct evidence of knowledge is difficult to come by hence Court has to infer from the surrounding circumstances. In the case of Parlan Bin Dadeh v. PP [2008] 6 MLJ 19 (FC) Augustine Paul FCJ held at Page 39 for the Federal Court: “[25] The law is clear and well settled. Proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can be drawn varies from case to case. It would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused had the necessary knowledge.” [30] In the case of Chan Pean Leon v. PP [1956] 1 MLJ 237, Thomson J held at Page 239: “Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. There may be something in the accused's behaviour that shews knowledge, or the nature of the thing may be so obvious that it is possible to say “he must have known what it was” or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills a gap in the evidence.” [31] On what constitutes as knowledge, the Court of Appeal in Pendakwa Raya v. Lim Cheung Meng & Anor [2015] 1 LNS 1226; [2015] MLJU 2234 has this to say: “[35] Knowledge refers to a mental state of awareness of a fact. Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary. Animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the surrounding circumstances. (See Ong Ah Chuan v. PP [1980] 1 LNS 181; [1981] 1 MLJ 64; PP v. Mohd Farid bin Mohd Sukis & Anor [2002] 8 CLJ 814; [2002] 3 MLJ 401; Surentheran Selvaraja v. PP [2005] 2 CLJ 264].)” [32] From the totality of the evidence this Court was satisfied that since the drug was found in the “Samsung” bag held by the Accused and that they were wrapped in transparent plastic casings, hence he must have knowledge about the drug (as will be explained below). Infact he was seen alone whilst holding the bag. Hence the Accused is in (mens rea possession) of the drugs. It follows that a prima facie case was made out. As the amount of drugs (for the first charge) were above the statutory limit, hence the presumption of trafficking was triggered. [33] Regarding the other drugs openly found in his room, the Accused admitted that those were his. [34] Probability of the case has also to be considered. In the case of PP v. Mohd Bandar Shah Nordin & Anor [2008] 4 MLJ 556 the Court said: “Another relevant consideration is the probabilities of the case. If a witness evidence is improbable, this would be a good reason for rejecting his evidence or according it very ‘little weight’.”

(iii) Defence of the Accused Considerated [35] This Court has also considered the defence’s case. As alluded to earlier and at the risk of repeatition it was the Accused’s evidence that those drugs in the blue “Samsung” bag did not belong to him but Fateh. The Police had arrested Fateh, who the Investigating Officer confirmed that he existed and that Fateh was arrested with Cannabis found in his room. [36] This Court had considered his defence of denial of the possession of the drugs found in his hand whilst holding them in the blue “Samsung” bag against the strong evidence of the Prosecution witness i.e the Arresting Officer (SP5) as this Court found that SP5’s evidence was credible, logical and highly probable. This will be discussed later. The Accused said that the drugs belonged to Fateh who stayed at Level 1. He said the Police took the drugs from Fateh and claimed that those was his. However, in his Cautioned Statement he agreed that he did not see the Police took the drugs in the bag from Fateh. However, he admitted all those drugs found in the room were his. [37] The Accused called his witness (SD2) to testify on his behalf to support him. This Court had considered SD2’s evidence whose evidence is consistent with the Accused’s denials. According to him, he accompanied the Accused from the Accused’s Unit to the bottom of the staircase. The Accused was not holding anything in his hands much less the blue “Samsung” bag. Thereafter he left and walked towards his car. The Accused also tendered his Coutioned Statement (D36) to support and corroborate his testimony. This Court observed that his defence as manifested in his Cautioned Statement was just a repetition of what he had testified in Court i.e that the drugs in the blue “Samsung” bag were not his but Fateh’s. [38] In his testimony, the Accused said that on that fateful day, his friend SD2 came to his Unit to visit him. The Accused together with SD2 came downstairs because he wanted to wait for Food Panda delivery to get his food and to open the locked grill of the stairs for SD2 to exit. He reitereated, he did not hold anything in his hands much less the blue “Samsung” bag. Upon reaching downstairs D2 left. [39] A few moments later, the Accused was arrested and brought into his Unit whereby Police found the 2 packets that contained Cannabis and Methamphetamine drugs respectively (P15 and P16). [40] According to the Accused, thereafter the OKT/Accused brought SP5 and his team to Fateh’s Unit downstairs (Level 1) but Fateh knowing of the Police’s coming threw the bag (P24) containing the drugs downstairs and the Police team picked up the bag and gave the Accused to hold the (P24) bag, as if the things were found on him. [41] This Court had scrutinised and assess the evidence of the Accused which was faintly supported by the evidence of SD2. [42] This Court found that, against the strong evidence of PW5 and other Prosecution witnesses (whose credibility are intact and will be discussed later) with the Accused’s evidence of a mere denial, the Accused’s defence cannot raise a reasonable doubt, and rebut the presumption. [43] The Accused has called SD2 to give evidence on his behalf testifying that he did not see the Accused holding the blue bag that contained the drugs when both of them were coming down the stairs together from the Unit. This Court ruled that he is an interested witness and his evidence are to be treated with caution as he is a close friend of the Accused as admitted by him. The Accused also admitted to that fact. This Court ruled that from his demeanour, he is not a truthful witness. He came to Court to exculpate the Accused. [44] The Coutioned Statement was tendered as (D36). The contents are consistent with the evidence he gave in Court, i.e that the drugs found in the “Samsung” bag were not his but Fateh’s.

(iv) Credibility of Witnesses (both Prosecution and Defence) [45] From the totality of the evidence, this Court ruled that SP5 is a credible witness. His evidence was corroborated by the Police Report (P17) lodged by him which is considered a contemporaneous document supported by the Search List (P27) and Handing Over List (P28). Further, he is just a Police Officer who is doing his official job and there’s no personal advantage that he will gain from the arrest of the Accused (see Phan Kim Tung v. PP [2021] 1 LNS 168). There was no evidence to show that he has an axe to grind neither was there any evidence to show the Accused knew him before. Same goes to other Police witnesses. [46] Further, Section 114 (e) of the Evidence Act says that we have to accept SP5 and other Police witnesses’ evidence because we have to presume that their official act was regularly performed, unless otherwise proven or rebutted or contradicted. As alluded to earlier, the Accused did not know SP5 and SP5 has no reason to frame him. There was no evidence adduced by the Defence which can undermine SP5's credibility. Infact, this Court has observed his demaenour in the coure of the trial and found that there was no reason for this Court to doubt his credibility as the element of inherent probability was present in this case. [47] Regarding SD2, as alluded to earlier, obviously he is an interested witness to exculpate the Accused, being his close friend from these charges. [48] Towards that end, the case of PP v. Mohamed Ali [1962] 28 MLJ 257, is of considerable assistance whereby 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 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.” [49] For the aforesaid reason, for the first charge, this Court ruled that the Prosecution had succeeded in proving that the Accused was in possession of the drugs in question with knowledge. As the drugs were more than 50 grammes, the presumption of trafficking against the Accused for the first charge was invoked and his duty is to rebut the presumption. [50] As the Defence has failed to rebut that presumption of trafficking (the first charge), as his defence was a bare denial against the strong evidence of the Prosecution’s witnesses, hence the Prosecution has proven its case beyond reasonable doubt and the Accused is hence found guilty and convicted. For the second and the third charge, as he has admitted to be his, hence this Court has found him guilty and convicted him too. E. OTHERS [51] The Defence argued that the Prosecution failed to call Fateh, which has created a gap in the Prosecution’s case and also could give rise to a suppression of evidence and an adverse inference under Section 114 (g) Evidence Act should be invoked. [52] This Court had considered this argument. It is to be remembered that the first charge against the Accused was that he was in possession of the drugs at the material time, found in the blue “Samsung” bag he was then holding/carrying and was triggered with the presumption of trafficking, Cannabis might have been found in Fateh’s room as asserted by the Defence. This Court cannot fanthom how that same type of drugs could have any nexus at any material time, with the drugs the Accused was found holding in the “Samsung” bag with no evidence adduced before the Court to suggest such proposition. To accede to such proposition would be stretching it too far. Each offender will have to answer for their own separate offence. Likewise in this case, Fateh should be responsible for the drugs found in his room. [53] As there was no nexus between the 2, there was no necessity to call Fateh to testify. His absence did not create a gap in the Prosecution’s case. The Prosecution’s case was that the Police found the drugs in P24 was held by the Accused and this the Prosecution has successfully proved. F. CONCLUSION [54] For the aforesaid reasons, in the upshot, the Accused was found guilty on all the charges as per the charges and convicted. [55] Regarding sentence as to whether this Court is mindful to give the death sentence or life imprisonment, after hearing submissions by both parties, this Court had sentenced the Accused for life imprisonment for the first charge with 12 strokes of the rotan. For the 2 other charges the Accused was sentenced to 2 years imprisonment for each charge. Dated: 20 June 2024 (DATO’ AHMAD BIN BACHE) Judge Criminal High Court 1 Kuala Lumpur Parties: Accused’s/Appellant’s: Encik Afifuddin Ahmad Hafifi Solicitors: (Cik Aina Melina with him) TETUAN SALEHUDDIN SAIDIN & ASSOCIATES Wisma Salehuddin No. 14, Jalan Tengku Ampuan Zabedah A 9/A Seksyen 9 40100 Shah Alam SELANGOR Public Prosecutor/ Encik Mohd Isa bin Mohamed Opponent: Pendakwa Raya Kamar Peguam Negara Bahagian Perbicaraan dan Rayuan Aras 5, No. 45, Lot 4G7, Presint 4 Persiaran Perdana 62100 PUTRAJAYA