[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v MOHD KAMAL BIN JOHARI (WA-45A-12-01/2022)

The subject matter of the preferred charges to wit cannabis is a dangerous drug pursuant to the DDA which was confirmed by the chemist vide analysis made by him on its nature, identity and weight.

(ii) There has been an unbroken chain of evidence when the impugned drugs were handled, right from the point of time of seizure of the drugs at the scene of crime by the raiding officer (RO) SP3 in this case, then handed over to the investigation officer (IO) SP6, who had then sent it to the chemist SP5 for analysis and later collected by him. The same was kept by him under lock and key and produced in court as real evidence against the accused during the trial. The impugned drugs were meticulously identified and confirmed by all of them in their testimony.

(iii) The dangerous drugs were proven beyond reasonable doubt by the prosecution to be in mens rea possession of the accused.

(iv) Ensuing from that, the statutory presumption of trafficking pursuant to section 37 (da) (vi) of the DDA was invoked against him.

He was unable to raise a reasonable doubt on the mens rea possession proven against him, arising from the evidence or want of evidence. Raised are only conjectures unrelated to evidence adduced. (See PP v Saimin & Ors (1971) 2 MLJ 16).

(vi) He was also unable to rebut the presumption of trafficking invoked against him, on a balance of probabilities, by proffering tangible evidence.

(vii) Thus, he was found guilty, convicted and sentenced by this court. Case of the prosecution [6] There were three (3) preferred charges against the accused. Date of the offence is the same on 4.1.2021 but the place at which the impugned drug cannabis was found differs. • For the first charge P2A, it was found on the back tyre of a Perodua Bezza car bearing registration no. VFS 4768, weighing 914.1 gram. • As for the second charge, P4A cannabis weighing 12,805 grams was found inside a Proton Saga car bearing registration number DAA 9369, and • For the third charge P6A, cannabis weighing 175,207.90 grams was found inside the car Daihatsu Rocky bearing registration number WBP 7664. [7] The crime was unearthed by the raiding officer (RO) SP3 and his team, stationed at the said road. He had made observation for a good ten (10) minutes from a distance of 10 metres from the Bezza motorcar, silver in colour, which is P39 (identified via photograph). The car was supposed to have stopped at side of the road and an individual alighted from the car and went towards another Proton Saga car with registration number DAA 9369, P43 which was also identified via photograph. The said individual was identified in court by SP3 as the accused, who had then opened the boot of P43 and took out an orange plastic bag which was then placed by him on the top of the right back tyre of the Bezza car. The exact position of placement of the said bag was shown vide photograph P21. SP3 had confirmed in his testimony that there was no one else aside the accused at the material time of observation by him and his team, which was divided into three (3). His team, followed by another observed from left of the Bezza car, whilst the third team was observing from the back of the Bezza car, also at a distance of 10 metres. [8] Following on, SP3 had approached the accused, at the left-hand side of the Bezza car and introduced himself as police by showing his authority card. After which, SP3 had searched the body of the accused and found on him, the following vital and material items, inter alia pertaining use of the cars and other items, including: • P34B – a remote control with identity Perodua; • P35A – access card taken from the back left trouser pocket; • P36A to P36D – a bunch of keys, consisting of three (3) small keys, also taken from the same side of his trouser pocket; • P35B – black wallet with identity Michael Kors; • P35C – Bank Islam card; • P35D – Hong Leong Bank card; • P35E – CIMB Bank card • P36B, P36C and P36D – three (3) different keys found in a bunch in his back trouser pocket, respectively marked as: o P36B which is a key chain with a doll written U First with identity Proton; o P36C marked as 454; and o P36D marked as TOY 38. Seizure of the above items were recorded in the search and seizure list P27 and also depicted vide photograph P17. The orange plastic bag which was placed on top of right back tyre of the Bezza car was examined by SP3 and found to have contained ketulan mampat daun-daun kering cannabis, tendered in court as exhibit P40A to P40D. Its weight was confirmed by the chemist after analysis to be 914.1 grams. [9] On the same day, at about 6 pm, SP3 together with the accused had examined the bonnet of the Proton Saga car with the use of one of the keys from the bunch of keys marked Proton, P36B. In the said car, the following was found: • P41C to P41J – 4 balutan plastik lutsinar mengandungi ketulan mampat daun-daun kering cannabis. • P42A to P42T – 10 balutan plastik lutsinar yang mengandungi ketulan mampat daun-daun kering cannabis. Both the above adds up to 12,805 grams. It was recorded in the search and seizure list, P28. SP3 was at all times cautious when the Proton car was searched, by placing a police officer to guard the Bezza car and the orange plastic bag found on its tyre. SP3 kept it inside his backpack and carried around by him when going on to search the Proton car. [10] Ensuing, SP3 had once again used one of the keys from the bunch of keys seized, marked 454, tendered as exhibit P36C, which was tried by him to open the 4W Daihatsu car no. WBP 7664, identified via photograph as P60. That car was stationed under a white tent at the bushes near the same road, 1/12, Kampong Batu Muda, Kuala Lumpur. Resulting from the search, the following were found: • One black plastic bag – containing 13 balutan plastik warna kuning dan 7 balutan plasitk warna perak yang mengandungi ketulan mampat daun kering cannabis – P44A to P44ZN and P45 – box marked MR3 – “I” – tendered as exhibit P44 and P44

(1). • Another black plastic bag – containing 20 balutan plastik warna oren yang mengandungi ketulan mampat duan kering cannabis – P46A, P46C (1-20), P46D to P46W – box marked MR4 – “J” – tendered as exhibit P46 and P46 (1). • Black plastic bag – containing 15 balutan plastik warna oren yang mengandungi ketulan mampat daun kering cannabis – P55B, P55C to P55Q – box marked MR10 – “K” – tendered as exhibit P55 and P55A. • Green plastic bag – containing 10 balutan plastik warna hijau yang mengandungi ketulan mampat daun kering cannabis – P59C (1-10), P59D to P59M – box marked MR12 (b) – “N” – tendered as exhibit P59, P59A and P59B. • Green plastic bag – containing 10 balutan plastik lutsinar yang mengandungi ketulan mampat daun kering cannabis – P57C (1-10), P57D to P57M – box marked MR11 – “b” dan kedua “L”– tendered as exhibit P57, P57A and P57B. • Green plastic bag – containing 10 balutan plastik lutsinar yang mengandungi ketulan mampat daun kering cannabis – P48 (1- 10), P48A to P48J – box marked MR5 – “M” – tendered as exhibit P47, P47A dan P47B. • Green plastic bag – containing 14 balutan plastik warna kuning yang mengandungi ketulan mampat daun kering cannabis – P54C (1-14), P54D to P54Q – box marked MR10 – “O” – tendered as exhibit P54, P54A and P54B. • Green plastic bag – containing 8 balutan plastik warna merah jambu dan 6 balutan plastik warna hijau yang mengandungi ketulan mampat daun kering cannabis – P49D (1-8), P49E to P49L and P50A to P50F – box marked MR16 – “P” – tendered as exhibit P49, P49A and P49B. • Black plastic bag – containing 15 balutan plastik lutsinar yang mengandungi ketulan mampat daun kering cannabis – P51C (1-15), P51D to P51R – box marked MR7 – “Q” – tendered as exhibit P51, P51A and P51B. • Black plastic bag – containing 10 balutan plastik lutsinar yang mengandungi ketulan mampat daun kering cannabis – P58B (1-10), P58C to P58L – box marked MR12 (a) – “R” – tendered as exhibit P58 and P58A. • Black plastic bag – containing 14 balutan plastik lutsinar yang mengandungi ketulan mampat daun kering cannabis – P52C (1-14), P52D to P52Q - box marked MR18 – “S” – tendered as exhibit P52, P52A and P52B. • Black plastic bag – containing 17 balutan plastik warna biru yang mengandungi ketulan mampat daun kering cannabis – P56B (1-17), P56C to P56S – box marked MR11 – “T” – tendered as exhibit P56 and P56A. • Black plastic bag – containing 20 balutan plastik warna oren/keemasan yang mengandungi ketulan mampat daun kering cannabis – P53C (1-20), P53D to P53W – box marked MR9 – “U” – tendered as exhibit P53, P53A and P53B. The above was reflected in the search and seizure list P29 followed by acknowledgment of receipt by the IO on 5.1.2021 vide exhibit P32 and consequently in P66, the Chemist Report. [11] Nature, identity and weight of the dangerous drugs seized forming subject matter of all three (3) preferred charges against the accused, upon analysis by the chemist SP5 was confirmed by him to be cannabis within ambit of the DDA and accordingly its weight, as referred to above and specified accordingly in the preferred charges. In the absence of evidence to the contrary vide cross-examination of SP5 or by another chemist, this court has accepted the opinion of SP5 as credible and proof worthy. Evidentially, it too forms basis for this court to order the accused to enter on his defence to the preferred charges for offences of drug trafficking. (See the oft quoted authority – Munusamy v PP (1987) 1 MLJ 492 and PP v Lam San (1991) 3 MLJ 426). [12] Upon observation by the RO SP3 and his team, specifically SP3, it is abundantly clear that the accused was found with the drugs on the tyre of the Bezza car and inside the other two (2) cars, as mentioned above. The fact that the accused was at the material time: o with the said cars; o he was the one who had placed the impugned drug on the tyre of the Bezza car; o also found with the keys to the said cars. has enabled this court to arrive at an affirmative finding that he was in physical possession of the said drugs. He could, if necessary deal with it as his own, as no one else, except him was found with it. With the car keys found on him, which was used by SP3 to open the Proton and Daihatsu car, it is also abundantly clear that he had control of the cars at point of arrest, raid and seizure. Observation made by SP3 also goes to show he was the only individual handling the impugned drugs and had alighted from the Bezza car and went to the Proton car and took drugs contained in an orange plastic bag and placed it on the back tyre of the Bezza car. [13] On the above, the testimony of SP3 stands unrebutted, as: • At all material time his observation was at close proximity of about 10 metres from the Bezza car. In fact, he was positive of it and had marked his place of observation as Y1 in exhibit P23. • The lighting at the place was clear and his sight was unhindered. • He actually saw the accused person drove the Bezza car, alighted from it and parked it at point X1. • He then walked to point X2, where the Proton Saga car P43 was parked. • He had seen it so clearly that the accused had opened the bonnet of the Proton car and took out an orange plastic bag. • He had then placed the said orange plastic bag on top of the right back-right tyre of the Bezza car. • He had also confirmed firmly in his testimony that no one else was seen with the accused when he alighted from the Bezza car, who had then walked to the Proton car and later returned to the Bezza car to place the orange plastic bag at its tyre area. • The distance between the Bezza and Proton car was not afar but a close 5 to 7 metres. • Thus, he could see precisely what was happening at the locus in quo vis a vis the accused person. • After which, he had approached the accused and introduced himself as a police officer before searching his body in which the items as enumerated above were found. The testimony of SP3 syncs with the best evidence rule, as it is direct evidence on what he saw before and during the arrest of the accused, followed by the raid and seizure. It falls squarely under section 60 (1) (a) of the Evidence Act 1950 (EA/Act 56). His testimony, which had stood unrebutted also lends credence to the fact that it was the accused who had alighted from the Bezza car, went to the Proton car and took out an orange plastic bag to place it at the Bezza car on its tyre area. The said bag was then opened by SP3 which is found to contain daun-daun kering yang sah adalah cannabis. Further, the act and/or conduct of the accused going to the Proton car with the key found in his pocket P36B is a relevant and material piece of evidence falling squarely within section 8 (2) of the EA. The accused was in an unenviable position, as he could not deny his involvement, as he was the one who drove the Bezza car. This is also supported by his DNA, which was found on that car vide exhibit P73. His own brother SP4 who had testified for the prosecution had also confirmed firmly that the accused was using the Bezza car on 4.1.2021. Adding on, the car belongs to one Shelfa Munirah who is the wife of the accused, confirmed vide exhibit P68. [14] Following on, SP3 had opened the bonnet of the Proton Saga car using key P36B, he seized from the trouser pocket of the accused. SP3 had found a beg marked Impact (P41A) and cannabis (P41C to P41J and P42A to P42T). As explained above, to ensure an unbroken chain of movement of the incriminating exhibits seized, SP3 had been cautious, by carrying along the orange plastic bag he had found on the tyre of the Bezza car. As for the Proton car, he had closed its bonnet and directed another of his man to guard it as well as the drugs found inside it. He then locked the Proton car and carried the key along with him. To iterate, it is done to ensure the chain of movement of the incriminating exhibits is not broken and also to avoid it from being tampered with before production in court as evidence. [15] The case of prosecution is further fortified by the testimony of the IO SP6 who had confirmed that the Proton car could be locked and its bonnet could not be opened without using the key P36B as the lever inside the car towards the bottom of the driver seat to open the bonnet was not functioning. (See exhibit P11, no. 5 and 6). Thus, it is only certain that no one had access to the Proton car besides the accused, who was in possession of its key, seized from him. The testimony of both the RO SP3 and IO SP6, are credible and it is not like the proverbial cow jumping over the moon. Their testimony was not inherently improbable, thus accepted by this court without any doubt. (See PP v Mohamed Ali (1962) 1 MLJ 257). [16] Knowing SP4 is brother of the accused, with blood ties, he was called as prosecution witness. It only goes to show the prosecution was candid and he was called to establish proof of ownership of the Proton Saga as well as possession of the kebun at the material time, at which the cars containing dangerous drugs were parked. Although to an extent, he chose to testify contrary to the prosecution narrative on other matters, which this court finds it to be with intent to exculpate his brother from criminal liability, he had also testified in favour of the prosecution on the following matters, evaluated accordingly: • That the Proton Saga was unlocked, which flies across the direct evidence adduced by SP3. • The key to the said car was given to the accused on the day of his arrest, which cannot be true, as the car was kept unlocked. Again, it flies across the direct evidence of SP3, who had found the key P36B to the Proton Saga with the accused. • Anyone could obtain the key to the Proton as well as Daihatsu, as it was kept in a container at his shop, accessible to all and sundry. According to him the bunch of keys for all the cars were kept in the said container. Once again, it flies across the direct evidence of SP3, who had found the car keys, as listed above with the accused. • That one Wan Bunga had called him to have the key to the car, which again leaks with untruthfulness, since he had said the keys are kept in a container accessible to all and sundry, which would logically include Wan Bunga. • He had also contradicted on the existence of P36B, which according to him was a duplicate of the original key, when in the first place, when examined in chief by the DPP, he had said there was no duplicate key. • He had also been shifty in his testimony with regard to the existence of Wan Bunga. In this regard, the following testimony is material:

4.30 petang, Wan Bunga ada telefon saya. Dia minta saya letakkan kunci di Daihatsu. Saya minta tolong abang saya Kamal untuk letak kunci Daihatsu sebab Wan Bunga mahu pinjam. Kunci sekali diberikan kepada OKT (serangkai). Dia nak pergi hantar, baru sampai kereta Perodua Bezza, dia kena kepung. Dia belum sampai kereta Proton Saga lagi. Kereta Proton dan Bezza jauh bukan dekat. Masa itu Kamal belum keluar dari Bezza. Again, this piece of testimony leaks with contradiction, if the Daihatsu car is always used and owned by Wan Bunga, why has it to be borrowed from SP4. Moreover, if the accused was asked to leave the key at Daihatsu, what is the need for him to go into the Bezza car, when SP4 had confirmed the Daihatsu car was kept under a tent at the kebun area marked “A” in the sketch plan. • He had also testified that the kebun belongs to him, but later on, he passed the buck on to Wan Bunga. (See RVT recording on 28.3.2023 at time stamp 10.18.19). Thus, he has full access to the said kebun marked “A” in the sketch plan. On that premise, it is acceptable for the accused who is his brother to have also access to the said kebun. • The IO SP6, confirmed that his investigation had revealed that the kebun is part and parcel of TNB reserve land taken care of, nurtured and cultivated by SP4 into a kebun pisang and not taken care of, nurtured and cultivated by one Wan Bunga. He had also confirmed that at no time earlier in the course of investigation, as an early disclosure that the accused had disclosed the address and telephone number of Wan Bunga as an early and good al contara notice for him to investigate. Hence, there has not been a good al contara notice as required under the law. (See the dictum of our Chief Justice in the case of Maria Elvira Pinto v PP (2020) 5 CLJ 1 (FC)). • SP4 had also confirmed that he did not see Wan Bunga or Zambree whom had placed the impugned drug inside the Daihatsu car. On the keys to the said car, he could not identify it at the outset, albeit saying that it was fastened together with the key to the Proton car, so that it would not be misplaced. In fact, he had stated pada mulanya saya tak tahu kunci apa. Kunci Daihatsu hanya saya kenali apabila dirujuk (dalam mahkamah). On that vein, his testimony that the keys to the Daihatsu was together with his Proton car cannot be believed, and it is made up to obscure the evidence led by the prosecution on the car keys which was found with the accused by SP3. [17] In sum, although SP4’s testimony form part of the case of the prosecution, this court is entitled to evaluate it and sieve it accordingly by juxtaposing it with the evidence led by prosecution, to see if it is credible, probable and truthful. It is clear as crystal, that SP4’s testimony is not near to that, save for the fact, that he was taking care of the kebun and he owns a shop. Even that was an utter made, and it is true, as investigated by SP6. He comes across as not a credible and truthful witness, but all out to save his accused brother from criminal culpability by passing the buck onto Wan Bunga and Zambree. Naturally, he was quite hostile towards the DPP when answering questions during examination in chief but at all time friendly with the defence counsel when he was cross-examined. That speaks volumes of his demeanour which is an ingredient in arriving at finding of his credibility as a truthful witness. (See Tengku Mahmood v PP (1974) 1 MLJ 110). He was too quick to pass the buck onto Wan Bunga and Zambree, as though it was scripted for him to say that from the witness box, without any cajoling. [18] The Daihatsu car was opened by SP3 using the key marked 454, exhibit P36C. He managed it, after trying to open all the cars parked at the kebun area. The distance between Proton and Daihatsu was not far but about 7 to 10 metres. It was parked under a tent, as identified by SP3 vide photograph P13, no. 1, 6 and 7. In the said Daihatsu a large quantity of cannabis was found and tendered in this court as evidence, as alluded to above. SP3 had offered uncontroverted evidence that as soon as he opened the door to the Daihatsu car, he sensed a strong smell which he perceives as smell of cannabis, pursuant to his experience as a RO in many drug cases. His perception via sense of smell is also direct evidence pursuant to section 60 (1) (c) of the EA. As alluded to earlier the said car was opened by SP3 using the key P36C. This was confirmed by SP6 and he too confirmed that the owner of the said car is deceased and the car is at the use and disposal of the accused, who had the keys to the car. (See P71A-B; P72 (A, B and C)). Chain of evidence [19] With regard to the chain of evidence vis handling of the exhibits, especially the impugned drugs found with the accused, the material witnesses who had handled it were the RO SP3; chemist SP5 and IO SP6. In court, it was confirmed the seal of the Chemistry Department was intact before it was opened up in court first by the RO, with the chemist laboratory reference number, later confirmed the same by the IO who had received it from the chemist. The RO had made the necessary markings on the various exhibits, which were abundant in this case, before it was handed over to the IO. He was able to identify them respectively without any doubt. The IO SP6 too had been able to identify the same, as before sending it to the chemist for analysis, he had kept it under lock and key, and upon receiving it from the chemist had also done the same. In court he was able to identify it according to the markings he had made on the exhibits. When the chemist SP5 testified, he said there were some markings which went obscure due to effluxion of time and nothing else. However, as confirmatory evidence, he had testified in the following terms: … ada tandaan tapi pada hari ini (semasa bicara pada 8.5.2023) saya tak nampak tandaan. Sebelum ini semasa periksa dengan Pol 31, tandaan dapat dilihat. Semasa saya serahkan semula kepada IO saya tak pasti tandaan ada sebab masa analisa mungkin terpadam. Tapi masa seal semula barang kes, semua dibuat satu per satu. Saya pasti saya terpadamkan tandaan. Sebelum pengendalian eksibit, tandaan ada. Semasa kembalikan kepada IO, tak pasti tandaan ada ke tak. Terpadam dengan tidak sengaja. But in any event, the trail of events speaks volumes, wherein, SP3 had confirmed the receipt of the exhibits by virtue of the seizure list prepared by him, as found in the three cars, namely P27, P28 and P29. Receipt of the same exhibits by IO of the case, SP6 was categorically recorded in the Borang Penerimaan Barang kes P30, P31 and P32. The same exhibits were received by the chemist SP5, premised on Pol 31, which is exhibited as P67. For the same exhibits received, official receipt was issued by the Chemistry Department, tendered in court as P65 followed by the chemist report P66 prepared by SP5. Hence, there is no issue or doubt in the handling of the abundant drugs found at the scene of crime, and the same produced in court as evidence in the form of exhibits against the accused person. (See the oft quoted case of Su Ah Ping v PP

1 MLJ 75 FC). As the handling of the impugned drugs was only by SP3, SP6 and SP5, it was categorically accounted for all along from the point of arrest, raid, seizure, analysis until its production in court as real evidence pursuant to section 60 (3) of the EA. [20] From the above, the police officers and chemist whom handled the impugned drugs, had ensured an unbroken chain of evidence, by paying heed to meticulous details. As soon as the drugs and related items were seized, SP3 the RO had identified and marked them respectively. This involves marking with date, time and his initial. A comprehensive record of the seizure is shown by the search and seizure list, with precise description of the items seized; the exact location of the seizure; the date and time of seizure; name and his identification; and the name of the accused. Later, when the items seized were handed over to the IO SP6, a detailed list acknowledging receipt of the items was also made categorically. Further, the seized items were handled carefully to prevent tampering. The transfer of the impugned drugs, abundant in quantity, to the chemistry department was formally requested via Pol 31, thus documented as to its chain of custody. Upon receipt by the chemist SP5, had assigned a unique laboratory reference number, who had later conducted the chemical analysis of the drugs. Consequently, a detailed report of the analysis in the form of a chemist report containing the results in terms of its identification and quantification was prepared and served on to the IO. The remaining sample were resealed and stored securely at the laboratory before it was returned to the IO, ensuring chain of custody. Later, the same exhibits were stored intact by the IO, before producing it in court as evidence against the accused. Hence, each of them who handled the impugned drugs were called to testify in court to confirm their role in the chain of custody, thus ensuring its integrity. There has been no break or unexplained gap in the chain, thus bolstering the reliability and admissibility of the evidence in court. Law applicable [21] With the cars parked at the kebun area, which was managed by his brother SP4, to which he has full access; the keys found with him at point of arrest; observation made by SP3 as to the fact that the accused took out the orange plastic bag containing cannabis from the Proton car and placed it on the tyre area of the Bezza car which belongs to his wife; the raid and seizure of large quantity of cannabis; and the manner in which it was packaged – only goes to show very clearly he was undoubtedly in possession of the drugs cannabis in the said cars and at the tyre area of the Bezza car. He was observed by SP3 to have dealt with the drugs, by taking it out and placing it on the tyre area of the Bezza car. He was alone at all material time. The said impugned drug was placed there to be collected by someone, and not for any other reason. Being found with large quantity of cannabis, it is definitely meant for distribution and not for personal consumption. (See the Supreme Court case of Teh Geok Hock v PP (1989) 3 MLJ 162). By virtue of his dealing with the drugs, knowing it is all scattered in the two other Proton and Daihatsu cars, also goes to show he knows of its existence as cannabis. There is no apparent reason for him to pick the cannabis from the Proton car and placing it at the tyre area of the Bezza car, conspicuously, if not inferentially for collection by some third party. This finding is not plucked out of thin air but judged from the outward acts of the accused. (See the case of PP v Badrulsham bin Baharom

2 MLJ 585). So, in sum, the accused was in control of the cars, in which the impugned drugs were found, thus this court finds it safe to arrive at an affirmative finding that he was in mens rea possession of the drugs cannabis, forming subject matter of the preferred charges against him. [22] Pursuant to the affirmative finding of mens rea possession of the impugned drugs, by virtue of the law, pursuant to section 37 (da) (vi) of the DDA, by sheer weight of the drugs which is significantly of large quantity attracts the presumption of trafficking, which is invoked by this court against the accused. He has to rebut it on a balance of probabilities. (See Muhammad Bin Hassan v PP (1998) 2 CLJ 170). The large quantity of cannabis found with him also signifies he was in mens rea possession of them for the purpose of trafficking. (See also the case of Ong Ah Chuan v PP (1981) 1 MLJ 64). Rebuttal [23] As rebuttal, the accused has to only raise a reasonable doubt on the case of mens rea possession proven by the prosecution that the impugned drugs were found with him when he was arrested. [24] As for trafficking of the said dangerous drugs, the accused bears the burden to rebut or displace it by offering proof on a balance of probabilities, which is a higher burden bestowed on him as opposed to merely raising a reasonable doubt. But it is of course lower than the burden of proof placed on the prosecution from inception of its case till the end, to prove a case beyond reasonable doubt against the accused. (See the case of Mohd Radhi Yaakob v PP (1991) 3 MLJ 169). Defence of the accused [25] The accused Kamal Johari in his defence to the charges for offences of drug trafficking has persistently shifted the entire blame and criminal culpability on an individual by the name of Wan Bunga. Hence, the pivotal issue is, who is Wan Bunga? [26] It has been depicted by his own testimony, supported by his witness Azam, SD2 that Wan Bunga is not a fictitious character but a real person who exist. The entire blame on possession of the impugned drugs found at the locus in quo, and trafficking the same is shifted on to him, who is claimed to be the operator of the kebun, at which the impugned drugs were found. Thus, his defence is that he is innocent and the individual to be blamed is in fact Wan Bunga, thus he has been wrongly charged and prosecuted. [27] Further, finding of the said drugs which is vehemently denied by the accused, in the cars of make Daihatsu and Proton, also do not belong to him but Wan Bunga. On the drugs placed on the top of the tyre of the car of make Bezza, he claims that it was not placed by him at any point of time. Hence, he claims that the drugs found on the top of the tyre of the Bezza car was a frame up deliberately made against him by the police. It has to be pointed out at this juncture that when he was asked during cross-examination by the DPP whether there were drugs inside the vehicles Proton Saga and Daihatsu, he had replied – “setuju, barang kes dadah ganja dijumpai dalam Proton dan Daihatsu.” [28] So much was said by the accused of Wan Bunga, via his counsel when cross-examining the prosecution witnesses (PWs), including his brother who testified against him as SP4, and also during the case of his defence, supported by his witness SD2 that Wan Bunga exists, albeit feebly. On the character Wan Bunga it is alleged: • He operates a kebun at the locus in quo. • The kebun is for planting flowers. • He is always seen cultivating the land at the kebun. • To own the land on which the kebun is situated, he has apparently applied for adverse possession of the said land from the State Authority. • Documents in the form of D85A, B and C was tendered in court to show genuineness of the said application. However, the said documents were produced only to show of its existence. • As the accused is responsible under the law to displace the presumption of trafficking on a balance of probabilities, he ought to have called the maker of the document Wan Muhamad Zulkifli bin Wan Embong, so as to prove the contents of the documents and its truth. Hence, the probative value of such documents is dubious. • Further, viewing the documents, the signatures on it differs, as though it is not signed by the same person. Following on, the said documents were made for different purposes; D85A is an application for Hakmilik Sementara for the purpose of planting vegetables, whereas D85C is an application made for kerja-kerja semaian pokok bunga. It too does not make any reference to Kampong Batu Muda, which was admitted to by the accused. Further, D85B which is resit rasmi issued for an application made for lesen pendudukan sementara by Wan Muhamad Zulkifli bin Wan Embong. • It is alleged by the defence that the documents tendered are to show that rights are conferred to the applicant to cultivate a land, but which land in question is unclear and not the kebun under the TNB transmission. In any event, the application made pursuant to D85A was after the arrest of the accused on 4.1.2021 and the letter is dated 22.3.2021. • A salutary point is that all these documents were tendered to show of the existence of Wan Bunga, but there was no evidence forthcoming from the defence that Wan Zulkifli and Wan Bunga are the same individuals. In fact, the accused in his testimony under cross-examination testified that he merely speculated that Wan Zulkifli is Wan Bunga – “saya tak pasti Wan Muhamad Zulkifli adalah Wan Bunga sebab saya tahu nama gelaran sahaja.” This goes to show he does not for certain know who is Wan Bunga. • In sum, the portrayal of Wan Bunga in the defence of the accused falls like a pack of cards, as he is not called to rebut the presumption of trafficking on a balance of probabilities, if called that would tantamount to be tangible evidence. • With that a nexus with Wan Bunga is not established on the impugned drugs and the three cars which were the place at which the drugs were found by SP3, in the presence of the accused. • Furthermore, both Wan Bunga and Zamree, purportedly saviour of the accused person from criminal liability, were not even there at the point of his arrest as SP3 had testified, and only the accused was present. This was also admitted to by the accused in his testimony. [29] Nonetheless, it is only a guess or surmise by the accused and SD2 that the applicant is in fact Wan Bunga. Glaring is the fact that a recommendation was sought from the Community Chief at the area where the land is situated. Although SD2 has testified that Wan Bunga is a real character, but he has honestly said in his testimony that he had only seen him working at the kebun when he was at school. SD2 left school when he was in Form 4, and at that point of time he was about 16 years old but at time of testimony, about 30 years old. He is seemingly a chance witness who happen to have seen Wan Bunga at the area in question but it was eons ago and not recently, when the accused was arrested with the impugned drugs. [30] The remaining part of SD2's evidence seems circumspect when he said he has seen black and green plastic bags as depicted in the photographs. He cannot be a person who was trolling or trailing the accused SD1 to know of his whereabouts, way of life and his valued possession. He is only a mechanic who happen to be operating his business at Kg Batu Muda where the accused and his family resides. It is also a fact that he did not see Wan Bunga at the locus in quo on the day of arrest of the accused as he had gone to work at the nearby workshop. [31] Evaluating SD2’s testimony, he seems to be a witness called to suit the defence, that the real trafficker in the case is Wan Bunga and not the accused. That is the height, the defence took the case by following development of the law in the realm of drug trafficking commencing from the case of Mohd Radhi to Sochime Okoye

3 CLJ 371, and its sequel, wherein this court when considering defence of the accused has got to be mindful of the Radhi direction, to inquire with curial scrutiny of the explanation by the accused, if in fact he was the real trafficker and not Wan Bunga and his name was made available at the earliest instance or opportunity to the IO of the case, forming an early al contara notice for the IO to inquire and investigate on its truth and veracity. The notice given is akin to a notice of alibi advanced by an accused pursuant to section 402A of the CPC which if established to be true by the IO, could have a refreshing effect on the charges preferred against the accused, as it may be withdrawn, if he is found not to be at the place and time when the offence is alleged to have been committed by the accused. Likewise, in the context of an al contara notice, if it is verified to be true, the real trafficker could be Wan Bunga, as claimed by the accused, if so he would be acquitted and discharged. But is that the case? [32] In the present case, despite bringing Wan Bunga into the picture, the accused has also raised another defence that the impugned drug belongs to one Zamree who was arrested earlier from the same place, and the drugs seized from him were similar in its packaging who was also charged for the offence of drug trafficking in another court. Does it serve as a defence to the accused? [33] Evaluating, credence of that defence, it appears to be dubious and doubtful, as the drugs tendered in this court as proof vide exhibits in this case was afresh and there was no evidence demonstrating it was also tendered earlier in another court involving the alleged accused Zamree. Further, if it is not the same drugs, even if a charge for an offence of drug trafficking was preferred against Zamree, albeit the packaging of the drugs could be similar, those drugs seized from him would have formed part and parcel of that case of the prosecution against him. Evaluation of the defence advanced [34] Defence advanced by the accused is two-fold, but with the sole aim of alienating himself from the impugned drugs found with him at point of arrest, raid and seizure. It was aplenty. Albeit it being two-fold, the defence advanced by him is contradictory and inconsistent with each other. As starter, he said the impugned drugs belongs to Wan Bunga and subsequently that it belongs to Zamree. To fortify his defence vis a vis involvement of Wan Bunga, he had said that keys to all the three cars in which the drugs were found were kept at a shop but accessible to all and sundry, thus could be used by Wan Bunga. In fact, he said Wan Bunga keeps the keys there. The same was told to court by his own brother who was called as prosecution witness SP4. Seemingly, the accused and his brother at the material time was not operating a sundry shop but a paradise shop for use of cars belonging to him and many other people, including Wan Bunga. [35] The defence painted by the accused is clearly an afterthought to suit his explanation that he has nothing to do with the impugned drugs found in his possession. He had tried his best to alienate himself from the impugned drugs, both during the case of prosecution, when his brother SP4 had testified and his testimony from the witness box together with the feigned testimony of SD2 who was supposed to have supported his defence. [36] In a nutshell, core of the defence of the accused is inherently contradictory. He claims not to have any connection to the drugs, its possession and trafficking, yet the same drugs were found in the cars directly associated with him, and even left in a location accessible from the Bezza car belonging to his wife. This inconsistency per se undermines the believability of his version. It is apparent that the accused has access to and control over the vehicles where the drugs were found. Possession does not only mean it has to be found on the body of the accused, but it can also mean having dominion and control over the cars, in which the contraband items were found. His access to the cars establishes a strong inference of possession. His act of blaming two others, Wan Bunga and Zamree without providing substantial evidence to support his claim only portrays his desperate attempt to avoid culpability. The vagueness of his claim, lack of support and it being inherently illogical in terms of time and circumstances presented by the accused, do not dislodge the case of the prosecution, which was helmed by the testimony of SP3, which stood uncontroverted till conclusion of trial, albeit he was vehemently cross-examined by the defence counsel. (See the case of Ling Tee Huah v PP (1982) 2 MLJ 324). To that extent, the defence of the accused is motivated by falsity when he chose to implicate others non-chalantly. [37] Despite the attempt by the accused to alienate himself from the impugned drugs, the case of the prosecution has been proved beyond reasonable doubt that the accused had mens rea possession of the dangerous drugs and the location of the drugs within his vehicles is a telling piece of evidence in support. The prosecution has weaved together the discovery of the impugned drugs from the accused person; his access to the vehicles; the quantity and nature of the drugs which suggest trafficking and not for personal use, building a strong inference of guilt. Further, the act of leaving drugs on a tyre area of his wife’s car shows beyond doubt concealment and/or transfer under his direction. In the absence of plausible explanation of how the two individuals named placed the drugs in his vehicles, the credibility of his defence is weakened significantly. Further, the significance of the manner in which the drugs, which are of abundant quantity were packaged, only reveals drug trafficking activity. The implausibility of the narrative of the accused was exposed during his cross-examination by the DPP, tending to show that his story cannot be believed. Questions that arise; why he did not immediately report on the two other individuals and why were the drugs found in areas so closely linked to him? In sum, the attempt by the accused to distance himself from the drugs is not credible in light of the evidence pointing towards his possession with knowledge and involvement in trafficking. [38] Another core issue harped on by the defence, is on the clash of testimonies and the weight to be given to them. The evidence of the brother of the accused, SP4, while being potentially relevant, carries less weight than the RO’s direct observation in the present case, for the following reasons: • The RO SP3 claims to have seen the accused handling the drugs and moving them between vehicles. • As alluded to above, this is direct evidence and it directly supports the fact that the accused was in possession of and dealing with the drugs. • Eyewitness testimony, is credible and reliable because it recounts a personal sensory of sight experience of the event in question. • SP3’s evidence is contemporaneous with the commission of the crime by the accused. Therefore, there is less room for fading memory or be influenced by subsequent events, as it stays with him. • SP3’s testimony also directly links the actions of the accused to the subsequent seizure of drugs in the other vehicles using the keys found on him. This per se creates a cohesive chain of events. • The brother, SP4’s testimony attempts to provide an alternative explanation for the accused possessing the car keys. The aim is to suggest a legitimate reason for the accused to have the keys, thus weakening the inference that possession of the keys implies possession of the impugned drugs. However, his testimony does not directly contradict SP3’s account of seeing the accused move the drugs from one car to another. It also focusses on events leading to the discovery of the drugs in the other cars, with use of the keys found with him. • This court is mindful of the fact that being the accused’s brother, SP4 has a potential bias and motive to protect his sibling. But of course, that does not render his testimony false, but it is a pivotal factor to be taken into consideration when assessing his credibility. • The direct evidence of the crime itself, witnessing the drug transfer and the subsequent finding of the other drugs in another two vehicles, has to be given more weight than the indirect evidence of SP4 who had tried to explain a peripheral detail, as to why the accused had the keys. • SP3’s testimony directly addresses the guilty act of the accused, which is actus reus in criminal law, to wit action of the accused with the drugs. SP4’s testimony does not negate this act. • Moreover, the fact that SP3 saw the accused moving the drugs and in possession of the keys to the vehicles containing the remaining impugned drugs, demonstrates that he is involved in drug offences. The inference is a strong one. On the other hand, SP4’s testimony rendering a possible explanation for the possession of the keys does not in any manner weaken the link between the observed actions by SP3 and the impugned drugs found. • In assessing their credibility, the RO’s evidence who had acted in his official capacity is perceived to be of less bias than a family member. • Further, in this case, there is no room for doubt to disbelieve the RO SP3. But SP4’s demeanour; inconsistency of his testimony and potential bias, renders his testimony to be less reliable. • It has to be noted that his demeanour when cross-examined by the DPP, was cantankerous, to the extent he had said if his brother was in fact trafficking drugs, he would have been wealthier, the height he could take to exculpate his brother accused. • Hence, while the testimony of SP4 is admissible and this court must consider all evidence adduced, it is less credible than the account of the RO SP3, who has offered direct evidence; an eyewitness account of the accused handling the drugs and in possession of it too. • This finding is made, in the wake of the testimony by SP4 whom had admitted the kebun was taken care of him; he did not see Wan Bunga placing the drugs in the cars; the keys to the cars were found with the accused at the time of arrest. • Glaring is also evidence offered by the accused who had said when cross-examined by the DPP that “setuju, saya letakkan kunci Daihatsu dan Proton dalam poket belakang seluar saya.”. He too admitted to have signed the search and seizure list, P27 acknowledging the raid that took place, including the keys found as a result of his body search. • SP3’s evidence directly addresses the principal ingredients of the offences of drug trafficking committed by the accused, but SP4’s evidence only offers explanation for a related but less incriminating fact, on the possession of the keys and the alleged involvement of the two other individuals, allegedly Wan Bunga and Zamree. [39] Premised on totality of the circumstances, this court has found that the prosecution has proven the guilt of the accused beyond reasonable doubt. Thus, on that plank he was found guilty, and convicted of the preferred charges for offences of drug trafficking. The mantra, if I may say so, is that a conviction cannot be sustained even if the court is satisfied that the prosecution story “may be” true unless and until it is found by the court that the prosecution story “must be true”, which is so in the present case involving the accused. (See again the case of PP v Saimin & Ors). Duty of the court [40] The pivotal issue to be decided by this court at conclusion of the trial, pursuant to section 182A of the CPC would be the following: • After having considered all the evidence adduced, including the evidence led by prosecution, cross-examined by the accused via his counsel and the evidence of the accused and his witness cross-examined by the prosecution via its DPP, was the accused successful in raising a reasonable doubt on the mens rea possession of the dangerous drug which has been proven by the prosecution and has also rebutted the presumption of trafficking invoked against him on a balance of probabilities. • If the accused has been successful in doing so, he would be entitled to an acquittal, if otherwise this court has to conclude that the prosecution has successfully proved a case beyond reasonable doubt against the accused on the preferred charges containing the particulars of offences of drug trafficking, pursuant to section 39B (1) (a) of the DDA, and punishable under section 39B (2) of the DDA. [41] Evaluating his defence at the conclusion of trial, this court finds the following: • After juxtaposing his defence and explanation in its entirety with the proven case of the prosecution, it is found that the accused is unable to raise a reasonable doubt on the case of prosecution which has proved mens rea possession against him by way of credible evidence. • He has also been unable to tilt the balance of probabilities in his favour to displace the presumption of trafficking which has been invoked against him in respect of all the three (3) charges. • To that extent, this court finds that the charges against the accused has been proven beyond reasonable doubt. • Consequently, the accused is found guilty and convicted on all the three (3) charges of drug trafficking against him. Sentence [42] Before meting out an appropriate sentence according to law on the accused, this court has heard his plea in mitigation which was submitted on by his counsel. The record of proceeding which would include the notes of evidence, would detail the plea and the submission on aggravating factors by the DPP. As the current state of law, provides for an alternative sentence of imprisonment for life to the death penalty, this court had chosen the former for the following reason: • Considering the case in its entirety, there was no evidence of buying and selling of cannabis at the time when the accused was arrested; • The involvement of the accused is only limited to being in possession of large quantity of cannabis, kept inside and outside the cars to which he had full access and control; • The evidence adduced in the case reveals the conduct of the accused who was found in possession of large quantity of cannabis and the manner in which it was packaged signifies it is for the purpose of trafficking and not anything else. However, the statutory presumption of trafficking was invoked against him and the plank of the case of prosecution is not premised on section 2 of the DDA by offering evidence of direct trafficking. [43] On the above premise, this court had sentenced the accused to the period of imprisonment of thirty (30) years as prescribed by the law, which is to take effect from the date of his arrest on 4.1.2021. The sentence of imprisonment is also to take effect concurrently, in view of the fact that the preferred charges are for offences of drug trafficking pertaining one series of acts so connected together as to form the same transaction, pursuant to section 164 of the CPC. He is spared of the sentence of whipping, as he is of more than fifty (50) years of age, thus excepted pursuant to section 289 (c) of the CPC. Accused found guilty and convicted on charges for offences of drug trafficking. Dated 12 May 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties DPP Zaileen Nadia Zubir of the Attorney General’s Chambers for and on behalf of the Public Prosecutor. DC Dato’ Jagjit Singh a/l Bant Singh together with Wan Muhd Ariff Ameer bin Wan Normazlan and Sofea Shereen binti Mohammad Salim of Messrs. Jagjit Ariff & Co appearing as counsel for the accused.