[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v FRANCIS XAVIER (WA-45A-21-04/2023)

AND FRANCIS XAVIER (IC NO. 981105 – 05 – 5309)

GABRIELLINA JANE A/P DEVARAJ SAMUEL ABISHEGAM (IC NO. 040521 – 14 – 1340) S/N owomnmsTVk29DA5FF2Psw JUDGMENT [1] Testimony of prosecution witnesses whom were subjected to vehement cross-examination was carefully evaluated and considered. Together with that, submissions advanced by both the prosecution and defence at the close of the prosecution's case was combed through. [2] The accused, Francis Xavier (OKT1) and Gabriellina Jane (OKT2), were jointly charged for trafficking 184.7 grams of methamphetamine (meth) an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA/Act 234). Their mode of participation in the crime was allegedly in furtherance of their common intention pursuant to section 34 of the Penal Code (PC/Act 574) and punishable under section 39B (2) of the DDA. The punishment provided for under the law is either the death penalty or imprisonment for a period of thirty (30) years with whipping up to twelve (12) strokes. [3] The prosecution bears the burden of proving a prima facie case against the accused persons, establishing all ingredients of the offence charged by way of credible evidence for them to rebut. It is found by this court at the close of the case of prosecution, a prima S/N owomnmsTVk29DA5FF2Psw case against both accused persons was not proven, thus they were acquitted and discharged of the charge against them. Hence this appeal by the Public Prosecutor (PP) against that decision to the Court of Appeal. Case of the Prosecution [4] Facts of the case reveals that on 29.11.2022, at around 3 pm SP3, the raiding officer (RO) had received information about drug trafficking activity at the Residensi PR1MA Jalan Jubilee parking lot involving a white Perodua Myvi with registration number WXL 2664. At approximately 4 pm, SP3 and his team took their positions at the apartment complex. They observed the Myvi at parking bay number

The car was seen leaving and re-entering the parking area three times before exiting the residence at around 4.50 pm. [5] At approximately 6.45 pm, the team was informed that the car had re-entered the residence. At 6.48 pm, SP3 saw OKT 1 and OKT 2 exit the car, with OKT 1 from the driver’s side and OKT 2 from the front passenger’s side. Both were walking towards the elevator on Level 2. At 6.50 pm, SP3 and his team raided and arrested them. [6] During the arrest, OKT 1 had dropped an access card, which was found to have a series number and “20-8” written on it with adhesive tape. A search of OKT 1 found a Pierre Cardin sling bag containing S/N owomnmsTVk29DA5FF2Psw his identification card, a Maybank card, a Perodua car key, three motorcycle keys, and three house keys. SP3 then used the key to open the Perodua Myvi located at parking bay 41. [7] Inside the car, on the rear passenger seat, SP3 found a black plastic packet containing 20 clear plastic packets of crystalline substance suspected to be Meth, later confirmed by the chemist to be 184.7 grams of meth. [8] It is the prosecution’s theory that OKT 1 and OKT 2 had control and custody of the drugs as they were seen exiting the car where the drugs were found. The car key was also found in OKT 1’s possession. The car was owned by OKT 1’s stepfather. [9] The prosecution rests its case on the following: • First, that the accused had possession of the drugs. Evidence was tendered to show that OKT1 and OKT2 were seen exiting the car where the drugs were discovered, and the car key was found on OKT1. The car does not belong to them. • Second, the prosecution submits that the impugned drugs found, in view of its weight was for the purpose of trafficking and not for personal use, thus reliance was on the statutory presumption under section 37(da) (xvi) of the DDA, weight of meth exceeds 50 grams. S/N owomnmsTVk29DA5FF2Psw • Third, the prosecution had established through the unrefuted testimony of the chemist, SP1 that the substance found in the car was indeed 184.7 grams of meth. • Finally, it was argued by the prosecution that both the accused persons were acting in furtherance of their common intention to traffic dangerous drugs meth. The sole basis being, they were present together at point of arrest, raid and seizure of the impugned drugs. [10] It was also contended by the prosecution that the chain of custody for the seized impugned drugs was properly maintained and accounted for from the time it was picked up from the car until its production as exhibits against the accused persons as proof in court. (See the much-celebrated case of Su Ah Ping v PP (1980) 1 MLJ 75, a landmark decision by the Federal Court, which has been adopted in many other cases subsequently). In that regard, a clear record of the handover of the exhibits amongst the arresting officer (SP3), the investigating officer (SP4), and the chemist (SP1) was documented as evidence. S/N owomnmsTVk29DA5FF2Psw Argument by the Defence [11] The defence on the other hand, has mounted a robust challenge, arguing that the prosecution has failed to establish a prima facie case on several critical grounds. They are the following. Possession and Knowledge [12] It was forcefully contended by the defence, that mere physical proximity of the accused persons with the impugned drugs is insufficient as material evidence proving possession of it, as the prosecution has to also prove that both of them had the requisite knowledge it was impugned drugs, which were seized from the car driven by OKT 1 with OKT 2 as his passenger at the front seat. [13] It was further contended, that the drugs were found in the rear passenger seat of the car and the car does not belong to either of the accused persons. Evidence was tendered via cross-examination of the prosecution witnesses (PWs) that the car was owned by one Kumar a/l Kannan and it was borrowed by OKT1 from another individual by the name of Yoga. It was revealed in evidence that the car was borrowed by OKT 1 in order to pick up OKT2 from Hospital Kuala Lumpur (HKL). This fact forming the chain of evidence in respect of the car, significantly weakens the prosecution’s theory of the case that the accused persons had exclusive possession of the S/N owomnmsTVk29DA5FF2Psw car in which the impugned drugs was found. The solitary issue is that the impugned drugs were found in a borrowed car and that the accused persons had access to the car only for short period of time when it was driven and finally parked at parking bay 41. That per se negates total access, custody and control over the car and it simply raises a reasonable doubt on the exclusivity of the conveyance used to traffic the impugned drugs, leaving an abyss in the case of the prosecution. [14] Adding on to the doubtful case of the prosecution is the defence of OKT 2 put to the PWs that she was only a passenger in the car, whom was ferried by OKT 1 from HKL, confirmed by medical evidence (D26) that she was unwell, thus fortifying the fact that she was totally unaware of the impugned drugs found inside the car. She was only travelling in the said car for that short period of time before she alighted from the car in order to go back to the unit where she was staying with OKT 1. This was not for the first time she has revealed this, but also earlier in the course of investigation of the case, vide her police statement D25. These material pieces of evidence undermine the less onerous claim by the prosecution that both the accused persons were in mens rea possession of the dangerous drugs, with common intention to traffic the same. At the S/N owomnmsTVk29DA5FF2Psw outset, she ought not to have been charged for the alleged crime, as the authorities had D25 and D26 with them confirming the reason for her presence inside the car. Alas! she was arrested and remanded pending trial until she was acquitted by this court much later in the year 2025. Failure to Call a Material Witness [15] The most compelling argument put forth by the defence is the prosecution's failure to call the car owner, Kumar a/l Kannan, as a witness. This is a material omission. The car owner could have provided crucial evidence on who had access to the vehicle and at what times. He could have also testified who in fact was driving the car before these two accused persons were arrested upon the car being parked at parking bay 41. That piece of material evidence, which was missing in the case, is highly relevant to the issue of mens rea possession of the impugned drugs, which the prosecution has to prove vide credible evidence free from reasonable doubt, before this court could arrive at an affirmative finding of mens rea possession. Only then, this court would be able to invoke the presumption of trafficking of the said drugs pursuant to section 37 (da) (xvi) of the DDA. Absent that material piece of evidence in the case, with no further recourse taken by the prosecution, left is again S/N owomnmsTVk29DA5FF2Psw a huge gap in the case of prosecution which had led to the acquittal and discharge of both the accused persons without them having to defend themselves. [16] On the law, this court had readily drawn an adverse inference pursuant to section 114 (g) of the Evidence Act 1950 (Act 56) against the prosecution for not calling the material witness Kumar a/l Kannan and Yoga to adduce material evidence on the core ingredient of the trafficking charge, that both the accused persons had exclusive possession of the conveyance, which is the car inside which the impugned drugs were found in order to prove that they were in fact in mens rea possession of the drugs. This finding is not made in isolation of the law, but it is well supported by numerous case authorities, primarily decision of our Supreme Court then, in the case of Munusamy v PP (1987) 1 MLJ 492. Significance of Kumar’s and Yoga’s testimony if called, would have thrown a light on the case of the prosecution as to how the car came to be in the possession of OKT 1. Materially, evidence as to what was kept in the car before it was lent to OKT 1 is paramount, as the impugned drugs was not conspicuous but found inside the said car at its rear seat, and they were not arrested in situ but after they had alighted from the car. This aspect of the case of prosecution is bizarre, as it S/N owomnmsTVk29DA5FF2Psw raises question on motive for the prosecution not to have called Kumar or Yoga to testify as witnesses for the prosecution. Is it because if they were to be called, their testimony would be against the case of prosecution implicating these two accused persons with the impugned drugs. Absent those answers, only leaves behind an oblique motive on the part of the prosecution for not calling those material witnesses. Their testimony may very well support the defence of the accused persons that they did not have any knowledge of the impugned drugs found in the borrowed car thus negating mens rea possession of it. At this juncture, it would be prudent to refer to the dictum of His Lordship Wan Suleiman FCJ (as he was then) speaking for the Federal Court, in the case of Krishnan v PP (1987) 1 MLJ 292 SC, that it is one of the most basic rules of justice that however heinous a crime a person is accused of, whatever the rank of the person who testifies against him, he can only be convicted on evidence produced according to the stringent requirements of the law. Thus, claim by the accused persons’ not to be in mens rea possession of the impugned drugs, brings the case of prosecution to a naught as the primary ingredient of the offence of trafficking that the accused persons were in mens rea possession of the impugned drugs is not established. S/N owomnmsTVk29DA5FF2Psw Gaps in the Chain of Custody [17] The defence had also highlighted a fatal flaw in the prosecution's case regarding the chain of custody. A ten (10) hour gap exists between the time the drugs were seized by the arresting officer, SP3 (approximately 6.50 p.m. on 29.11.2022), and when they were handed over to the investigating officer, SP4 (5.00 a.m. the following day). On that wide range of time when the exhibits were left behind, was not accounted for by way of tangible proof from the prosecution, as to what would have transpired with the movement of exhibits and chain of custody of the exhibits for that lengthy period of time. [18] This unexplained gap has raised serious concerns on the integrity of the evidence tendered by the prosecution. Its downside being, this court was uncertain on the identity of the impugned drugs, if it was the same one picked up at the scene of crime and later produced in court as exhibits to incriminate the accused persons. This fatal break in the chain of custody, followed by non-explanation has the effect of compromising the authenticity of the real evidence in the form of dangerous drugs produced as evidence against the accused persons pursuant to section 60 (3) of the Evidence Act. S/N owomnmsTVk29DA5FF2Psw Inadequate Investigation [19] Ensuing from all of the above, claim by defence that investigation of the case by SP4, the case investigation officer (IO), against the accused persons is shoddy is not without basis. Failure to pin whereabouts of key individuals in the case, Kumar and Yoga, and also failure to obtain the requisite CCTV footage as supporting evidence, demonstrates laxity when investigating the case but just to pin-down both the accused persons, whom per chance alighted from the car, has also the fatal effect of a reasonable doubt in the case of the prosecution. Conclusion [20] In view of the foregoing, this court finds that the prosecution has failed to establish a prima facie case against both accused persons on the preferred charge against them which is for a serious offence of drug trafficking. [21] Additionally, aside presence of both accused persons together, there is no iota of evidence tendered to this court to show that they were acting in furtherance of common intention to commit the crime as alleged. [22] Further, circumstance of their arrest is pivotal, wherein it was unearthed it was only after they alighted from the car, they were S/N owomnmsTVk29DA5FF2Psw arrested when they were proceeding to the lift. That is evidence of their conduct relevant under section 8 (2) of the Evidence Act 1950, consistent with their innocence, showing they were not concerned of what was inside the car, which was a borrowed one, later to be returned to the borrower. That conduct also demonstrates that their attachment to the car was merely momentary, and used by OKT 1 to fetch and ferry OKT 2 from HKL to the place of stay. As it was established via cross-examination of the PWs, OKT 1 used his motorcycle VJN6380 to work, also confirms the fact that he had in fact borrowed the said car only to ferry OKT 2 from HKL. This material aspect of the case was not investigated by IO of the case. Moreover, there was no investigation as to the driver of the car when it was driven hither-thither at the place of raid at time from 4 pm to 4.30 pm. In that respect, an inference in favour of the accused persons shall be drawn, as they are entitled to the time honoured benefit of doubt (See the case of Pang Chee Meng v PP (1992) 1 MLJ 137 SC; Ghasem G Hassan v PP (2014) 5 MLJ 433 CA; Lee Kwan Woh v PP (2009) 5 CLJ 631 FC). Further, their behaviour as persons who were found with contraband items, the impugned drugs, was neutral as when confronted by the raiding officer they appeared silent, did not look stunned, frightened or try to run away, again consistent with their innocence. S/N owomnmsTVk29DA5FF2Psw [23] With the fundamental flaws in the case of prosecution and its cumulative effect on the case of the prosecution, wanting in proof vide credible evidence, entitles this court unwarranted in law to call upon the accused persons to enter on their defence, as the proof tendered does not establish a prima facie case against them pursuant to section 180 (1) read with section 180 (4) of the Criminal Procedure Code (CPC/Act 593). Accordingly, both Francis Xavier and Gabriellina Jane a/p Devaraj Samuel Abishegam were acquitted and discharged without their defence being called pursuant to section 180 (2) of the CPC. Accused persons acquitted and discharged. Dated 22 December 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. S/N owomnmsTVk29DA5FF2Psw Parties DPP Anis Wahidah Mohamad of the Attorney General’s Chambers (AGC) for and on behalf of the Public Prosecutor, appearing for the prosecution. DC Dato’ KL Chee of Messrs. KL Chee & Associates for and on behalf of the accused persons. S/N owomnmsTVk29DA5FF2Psw