[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v MUHAMAD AZLAN BIN RAMLI (WA-45A-15-03/2023)

1.

MUHAMAD AZLAN BIN RAMLI MUHAMAD FARISYA FADLY BIN YAHAYA S/N tPduvwjG0a66w7zYD3U8w JUDGMENT Preface [1] There are two accused persons in this case, namely Muhamad Azlan bin Ramli (OKT 1) and Muhamad Farisya Fadly bin Yahaya (OKT 2) whom are charged with the offence of drug trafficking under section 39B (1) (a) of the Dangerous Drugs Act 1952 (DDA/Act 234), punishable under section 39B (2) of the DDA. The dangerous drugs Methamphetamine (Meth), weighing 28,263.6 grams were discovered in the boot of a Honda City car bearing registration number WMV 9117 driven by OKT 1 with OKT 2 as a passenger. [2] At close of the case of prosecution, this Court had found that a prima facie case of trafficking had been established against the accused persons by invoking the presumption of trafficking under section 37(da) of the DDA. Both accused persons were ordered to enter on their defence pursuant to section 180 (3) of the Criminal Procedure Code (CPC/Act 593) read with section 180 (4) of the CPC. This court has rendered its brief grounds of judgment, which is the following:

The test at the close of the prosecution's case is whether a prima facie case has been established. This means the prosecution must adduce credible S/N tPduvwjG0a66w7zYD3U8w evidence proving each ingredient of the offence which, if unrebutted or unexplained, would warrant a conviction.

The elements of a drug trafficking charge to be proved by the prosecution are – • The substance found must be a dangerous drug as defined by the DDA. • The accused must have had physical custody and control cum possession over the drugs. • The accused must have had knowledge of the existence and nature of the dangerous drugs, leading to mens rea possession. • If weight of the drugs exceeds a certain threshold, a presumption of trafficking under Section 37(da) DDA is activated.

Analysis of the prosecution's case on a maximum evaluation shows the following – • There are two accused persons – this does not inherently strengthen or weaken the prima facie case. • At point of raid they were inside a Honda City car - this establishes their presence and proximity to the car where the drugs were found. • Substantial amount of drugs found at the boot of the car: This is crucial. As the amount exceeds the statutory threshold, the presumption of trafficking under section 37(da) DDA is invoked, shifting the burden to the defence to rebut it. • Even if it doesn't meet the trafficking threshold, it's strong evidence of possession. • At point of raid and arrest, they were in control of the car: This is a very strong point for establishing physical possession of the drugs. S/N tPduvwjG0a66w7zYD3U8w • Being in control of the vehicle where the drugs were found in the boot directly links them to the drugs. Control here implies the ability to access and dispose of the drugs.

Based on the evidence adduced, a prima facie case is established by the prosecution for the accused persons to enter on their defence, but it is not without significant challenges.

The defence points, especially regarding the employer's involvement and arrest with similar drugs, and the fact he wasn't charged for this offence, directly challenge the knowledge and possession elements of the charge against the accused.

The innocent carrier defence, if credible, can successfully rebut the presumption of knowledge or raise reasonable doubt. In the upshot, the three options under the law are read to the accused persons. Both the accused persons opt to testify from the witness box. To – 20.8.2025 at 9.30 am for defence case – continuation of trial. Remand extended. Defence of Innocent Carrier [3] Core of the defence is that both accused were innocent carriers. They testified that they were working as part-time drivers for an individual named Abang Jue (Zulharizam). They were instructed to drive the car from Kelantan to Kuala Lumpur to collect stuff. It was highlighted that: S/N tPduvwjG0a66w7zYD3U8w • They never opened the car boot; • their personal belongings were kept in the back seat. • The car belonged to a third party, Mohamad Fakrul Haikal. • They followed instructions as part of their routine employment. Our apex Court in the case of Maria Elvira Pinto v PP (2020) 3 MLJ 21) had essentially confirmed that a person who is an innocent carrier and has no reason to suspect they are transporting drugs should be acquitted. The vehicle WMV 9117 does not belong to either of the accused persons. It was registered in the name of one Mohamad Fakrul Haikal. The prosecution failed to negate the possibility of third-party access to the vehicle. As established in the case of Husin bin Sitorus v PP (2012) 7 CLJ 205, legal possession requires the capacity to deal with goods to the exclusion of all others. Since the owner and the employer, Abang Jue had access to the vehicle, exclusive possession by the accused persons has not been proven. Rebuttal of presumption of trafficking [4] Under section 37(da) of the DDA, the burden of proof shifts on to the accused persons to rebut the presumption of trafficking on S/N tPduvwjG0a66w7zYD3U8w a balance of probabilities. This Court finds that they have successfully discharged this burden premised on the following: • Probability of the Explanation: The version of events provided by OKT 1 and OKT 2 that they were merely hired drivers is inherently probable. Their conduct during the 7 to 9 hours journey was consistent with that of employees performing a task, rather than principals in a drug syndicate. • Adverse Inference: The prosecution had failed to call Abang Jue or the car owner, Mohamad Fakrul Haikal. Their testimony would have been vital to disprove the claim by the accused persons of being mere drivers and also to confirm or deny the employer-driver relationship. Failure to produce them as witnesses triggers an adverse inference under section 114 (g) of the Evidence Act 1950 (EA/Act 56), as their testimony would have been unfavourable to the case of prosecution. In their absence as witnesses, the version of the defence is strengthened as being more probable. • Wilful Blindness: The prosecution had argued that the accused persons had shut their eyes to the truth. However, this court finds that for part-time drivers in an employment relationship, it is normal not to question the employer on the contents of sealed S/N tPduvwjG0a66w7zYD3U8w commercial boxes, J&T. Their failure to inquire was not deliberate ignorance but a reflection of their task to be carried out for their employer. The decided case from the Supreme Court of Canada Sansregret v The Queen (1985) 1 SCR 570 which is a persuasive authority, referred to by our apex Court in the case of Maria Elvira Pinto v PP renders that it is not mere negligence or failure to inquire. It is a deliberate ignorance where a person suspects the truth but intentionally refuses to investigate so they can remain in denial. In the present case, the accused persons’ failure to check the J & T boxes was a result of their routine employment, not a deliberate attempt to avoid criminal knowledge. Since a credible explanation has been provided by the accused persons, which is the employer – driver relationship, the burden of proof returned to the prosecution to prove actual knowledge beyond a reasonable doubt. However, what has prevailed is that the prosecution had merely relied on the weight of the drugs and the duration of drive, 7 to 9 hours as circumstantial evidence of knowledge. This court finds that weight alone is not a substitute for mens rea when the items are concealed in sealed commercial packaging i.e. J & T boxes within a locked boot. The duration of time S/N tPduvwjG0a66w7zYD3U8w taken too, is also not a substitute, simply because it was a long-distance journey. Thus, this court accepts the explanation by the defence that following an employer’s instruction to transport goods was part of their normal course of duty. There was no evidence of suspicious circumstances that would have compelled a part-time driver to search the sealed property of his employer. [5] Hence, the accused persons have successfully rebutted the presumption of trafficking on a balance of probabilities through: • Consistency – their testimony regarding Abang Jue remained unshaken. • Lack of financial interest – no evidence was led by the prosecution to show that the accused persons were to receive a payment disproportionate to a driver’s fee or wages, which would have suggested knowledge of an illegal conveyance or transportation. • Corroborative gaps – the failure to call the car owner and the alleged employer created a probative vacuum. In such a vacuum, the accused persons’ version remains the most probable version of facts. S/N tPduvwjG0a66w7zYD3U8w Presumed and Actual knowledge [6] Another pivotal issue in this case, is the transition from presumed knowledge to actual knowledge. • Presumed Knowledge: At the prima facie stage, this court had relied on the physical custody of the car by the accused persons to presume they knew of the drugs. • Actual Knowledge: Once the accused persons had provided a probable explanation for their presence in the car, their burden of proof is completely discharged. This principle is not plucked from thin air, but affirmed by our apex Court in the case of Alma Nudo Atenza v PP (2019) 4 MLJ 1, that statutory presumption like section 37 (da) of the DDA must be applied fairly. Hence, when the accused persons in the present case had provided a credible rebuttal of the presumption, in order to sustain a conviction for drug trafficking, there has to be credible evidence, at least circumstantially, that they knew they were transporting dangerous drugs. [7] However, in the present case, the prosecution had failed to provide direct or circumstantial evidence, such as incriminating messages, fingerprints on the drug packages, or suspicious behaviour, to prove S/N tPduvwjG0a66w7zYD3U8w that the accused persons knew the stuff they were carrying in the boot was dangerous drugs. The case of Low Thiam Teck v PP

3 MLJ 134 could be relied on to demonstrate that, mere proximity to the contraband is insufficient to prove mens rea possession required for a conviction. The prosecution must provide independent evidence to link the accused persons’ knowledge to the impugned drugs. Findings and Conclusion [8] The primary issues in this case as submitted by the defence are: i. Whether SD1 and SD2 had exclusive possession of the drugs found in the boot of the Honda City, with registration number WMV 9117? ii. Whether mere proximity, being inside the car is sufficient to prove possession? iii. Whether the prosecution's failure to call key material witnesses, Zulharizam bin Ismail and Mohamad Fakrul Haikal warrants an adverse inference under Section 114(g) of the Evidence Act 1950 (EA/Act 56)? iv. Whether SD1 and SD2 were innocent carriers and if the doctrine of wilful blindness is applicable to them? v. Whether the defence evidence has successfully raised a reasonable doubt on the prosecution's case? S/N tPduvwjG0a66w7zYD3U8w [9] This court is mindful that drug trafficking is a grave offence. However, the law is clear, in which the prosecution must prove the guilt of the accused persons beyond reasonable doubt or the accused persons must have failed to rebut the presumption on a balance of probabilities. In this case they have provided an explanation that is not only inherently probable but also consistent with the conduct of innocent carriers. [10] The quantum of proof required for rebuttal of the presumption of trafficking is only a balance of probabilities. The accused persons do not have to prove their innocence beyond a reasonable doubt, but only to show that their explanation is more likely than not, which is a lower threshold than the prosecution’s burden of proving its case beyond reasonable doubt. (See the case of PP v Yuvaraj (1969) 2 MLJ 89 PC). Ensuing from that this court finds that the accused persons have successfully rebutted the presumption of trafficking under section 37 (da) of the DDA. The prosecution had failed to prove actual knowledge and exclusive possession. A reasonable doubt has also been raised regarding the accused persons’ involvement in the alleged trafficking enterprise. [11] The accused persons have provided a consistent narrative that they were merely performing their duties as part-time drivers. They had S/N tPduvwjG0a66w7zYD3U8w no reason to suspect the J & T boxes contained drugs. By proving they were acting under the instructions of their employer, Abang Jue to transport stuff, which OKT 1 assumed were cosmetics, they have effectively displaced the presumed intent to traffic. The fact that the accused persons did not attempt to flee, placed their own personal belongings in the back seat, rather than the boot, and remained with the vehicle throughout the journey supports the probability that they were unaware of the impugned drugs. [12] The presumption under section 37 (da) assumes that the possession of drugs above a certain weight is for the purpose of trafficking. The accused persons successfully rebutted this by: • Establishing that they did not own the drugs or the vehicle. • Showing they were not the directing minds of the transportation but merely the logistics providers unaware of the impugned drugs. • Pointing to the prosecution’s failure to call Abang Jue who is in fact Zulharizam. Without his testimony to contradict the claim by the accused persons that they were hired drivers, the defence version of events remains as the more probable explanation for their presence in the vehicle. S/N tPduvwjG0a66w7zYD3U8w [13] By providing a probable and unrebutted explanation for their possession, to wit their innocent carrier defence, the accused persons have discharged the legal burden placed on them by section 37 (da) of the DDA. The presumption of trafficking has been replaced by a reasonable doubt regarding the knowledge of the accused persons and intent. In the absence of actual proof of trafficking, this court cannot safely convict. [14] By rebutting the presumption under section 37 (da) of the DDA on a balance of probabilities, the accused persons have effectively dismantled the case of prosecution. The prosecution had failed to prove its case on a beyond reasonable doubt. It had failed to prove exclusive possession; actual knowledge and the its failure to call material witnesses created a fatal gap in the narrative. [15] Also consistent with the principle laid down in the case of Mat v PP (1963) 1 MLJ 263, where a reasonable doubt is raised, the benefit of that doubt must be given to the accused persons. At conclusion of trial, this court has also rendered its brief grounds of judgment, which is the following: S/N tPduvwjG0a66w7zYD3U8w

Defence of both accused persons is – • They had no knowledge of the impugned drugs found in the trunk of the Honda City car. • SD1 who was driving, claimed he was asked by a man named “Abang Jue” (Zulharizam) to drive the car to Kuala Lumpur to collect some stuff and bring it back to Kota Bharu. • He claimed he did not know what was in the trunk because it was not his car.

The prosecution argues that the proximity of the impugned drugs to both the accused persons; also seen getting out of the car with the car key found in the ignition; although without physical contact; as they were situated to the drugs; thus, they had the power to deal with it as owner to the exclusion of all other persons.

The argument by the prosecution has to be juxtaposed with testimony of the accused persons and the circumstance in which they were in at the material time.

They were working as part-time drivers for an individual known as Abang Jue and were instructed to drive the car to Kuala Lumpur on the day of the incident. Both the accused persons were consistent on this and they were not discredited by the prosecution. The fact too remains, that they had been driving the car for over eight (8) hours and never opened the car boot as they had no reason to, since their personal belongings were placed on the back seat.

The defence counters the reliance of the prosecution on physical location as mere physical proximity is insufficient to prove possession S/N tPduvwjG0a66w7zYD3U8w without proof of knowledge. The fact that OKT 1 and OKT 2 were in the car, even with the key in the ignition, does not automatically equate to mens rea possession of the contents in the locked boot.

Argument by the defence that the accused persons were "innocent carriers" directly challenges the crucial element of knowledge and the prosecution's attempt to apply the doctrine of "wilful blindness."

The accused claimed they were merely following instructions from their employer, "Abang Jue," to drive the car to Kuala Lumpur to collect "stuff." They testified that their actions were a normal part of their routine task.

It has to be borne in mind that if the court accepts this, even partially, it suggests they genuinely lacked the required criminal intent or knowledge.

The defence correctly defines "wilful blindness" as deliberately shutting one's eyes because one suspects the fact but avoids confirmation, by citing the case of Maria Elvira Pinto Exposto v PP. It is argued this doctrine is inapplicable because the accused did not intentionally shut their eyes to avoid knowing the contents of the J&T boxes; they simply did not know they contained drugs.

Their failure to inquire about the "stuff" was attributed to the customary nature of their job, not a deliberate attempt to evade criminal liability.

The burden is on the prosecution to prove the case beyond a reasonable doubt and the defence does not have to prove its innocence; it only needs to rebut the presumption of trafficking invoked against them on a S/N tPduvwjG0a66w7zYD3U8w balance of probabilities and also raise a reasonable doubt on the case of the prosecution.

Given the large quantity of drugs involved, this court had found that a prima facie case of trafficking had been made out at the close of the prosecution’s case.

However, the law is trite, that even if the explanation by the accused persons is not fully believed by the court, but if it succeeds in raising a reasonable doubt regarding their guilt, they must be acquitted.

The case in its entirety has also to be viewed from the perspective of the non-calling of key material witnesses, whom are the car owner Mohamad Fakrul Haikal and their employer Zulharizam bin Ismail ("Abang Jue"), which remains critical. This justifies the drawing of an adverse inference under section 114(g) of the Evidence Act 1950.

The testimony of these uncalled witnesses is crucial to either confirm the accused's employer-driver relationship or negate the possibility of third-party access to the vehicle and the drugs. Their absence significantly weakens the prosecution's case and strengthens the reasonable doubt.

The defence raised by the accused persons that they were merely following instructions from their employer, "Abang Jue," to drive the car to Kuala Lumpur to collect "stuff" and that their actions were a normal part of their routine task, has to be accepted by this court, since the owner of the car as well as their employer Abang Jue was not called as witnesses which would have assisted the prosecution to have proved the case against the accused persons beyond reasonable doubt, by negating the explanation afforded by the accused persons. Moreover, S/N tPduvwjG0a66w7zYD3U8w this individual Abang Jue is shown to the court to be involved with incriminating dangerous drugs and has been under preventive detention.

Therefore, acceptance of their defence and explanation, per se negates the required criminal intent or knowledge of the criminal offence alleged against them.

The mere fact that the accused persons were asked by their employer to carry “anything whatsoever” containing the impugned drugs is a relevant fact, as they did not know of the presence of the drugs. Furthermore, the defence of innocent carrier is grounded on no knowledge of the drugs as decided by our apex Court in the case of Sathya Vello v PP (2022) 4 AMR 902.

In summary, by not proving mens rea possession; non-applicability of the wilful blindness doctrine; and uncalled material witnesses; there is a strong legal basis that both the accused persons have been successful to have rebutted the presumption of trafficking invoked against them and they have also been successful in raising a reasonable doubt on mens rea possession of the impugned drugs found with them at the boot of the car.

Thus, OKT 1 and 2 are acquitted of the preferred charge against them for trafficking of dangerous drugs. [16] Both OKT 1 and OKT 2 are hereby acquitted and discharged from the charge. Accused persons acquitted and discharged. S/N tPduvwjG0a66w7zYD3U8w Dated 28 December 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 Prosecution. DC Dato’ Ahmad Zaidi Zainal together with DC Fatini Athirah binti Baharin of Messrs. Ahmad Zaidi & Partners for and on behalf of both Accused. S/N tPduvwjG0a66w7zYD3U8w