[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v MOHD NAZRI BIN MOHD NORAZMI SEGAR (WA-45A-95-11/2021)

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MOHD ZULKIFLI BIN AZMI JUDGMENT Case Overview [1] The two accused persons Zulsahfarin bin Muhd Yusof (OKT 2) and Mohd Zulkifli bin Azmi (OKT 3), along with a deceased individual, Mohd Nazri Bin Mohd Norazmi Segar (OKT 1), were charged for an 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 in furtherance of their common intention pursuant to section 34 of the Penal Code (PC/Act 574). [2] They are alleged to have trafficked 4,790.1 grams of Cannabis on 29.6.2021, at an apartment in Brickfields, Kuala Lumpur. If convicted, they face the death penalty or life imprisonment, and if the sentence of death is not meted out, then they shall be punished with 12 strokes of whipping. [3] Following death of the individual involved, OKT 1 Mohd Nazri, and on a maximum evaluation of the evidence adduced, this Court finds that the prosecution has failed to establish a prima facie case against the remaining accused persons OKT 1 and OKT 2. Reasoning follows. Key Evidence and Facts [4] The raid took place on 29.6.2021, when a police team led by SP5 Insp. Darwis entered the apartment using keys seized from the deceased. They found OKT 2 and OKT 3 sitting in the living room. • At room 1, 4,321 grams of cannabis was found in a black bag inside a wooden wardrobe. • At room 2, 469.1 grams of cannabis found on the floor. • Also found was some paraphernalia, which was visible on the living room floor, including a digital scale, cutting board, knife, scissors, transparent tape, and a glass bottle used for smoking drugs. • DNA profiling and evidence showed and confirmed the presence of all parties at the scene. As for OKT 1, DNA was found on a white bath towel and OKT 2, his DNA was found on a cigarette butt, but shared with the deceased OKT 1. • As for the deceased accused OKT 1, his DNA was found on a white towel and a long-sleeved shirt.

OKT 2 and OKT 3 did not possess keys and had no access to the premises. • During questioning in the course of investigation, OKT 2 and OKT 3 demonstrated negative knowledge, as they were unable to show whereabouts of any drugs. • There is no rental document or evidence proving that OKT 2 rented the premises. [9] The defence then concluded deceased OKT 1 likely rented the space while the others were casual visitors. Forensic results vide DNA evidence pursuant to exhibits D35, P46, P74, P75 are apparent to exclude OKT 2 and OKT 3 from the primary areas of interest: • DNA found on a towel, Tuala 1 belonged only to OKT 1. A shirt, Kemeja 2 and another towel Tuala 3 contained mixed DNA, but OKT 2 and OKT 3 were positively excluded as contributors. • The only DNA match for OKT 2 and OKT 3 was found on a cigarette butt, Puntung Rokok 4, supporting the claim that they were merely present at the wrong time. [10] On the unexplainable gaps and potential suppression of evidence by prosecution, it is highlighted by the defence that there was another occupant at the premises. Pursuant to testimony of SP1, the member of the raiding team had positively indicated that Bilik F appeared to be inhabited. However, the photographer, SP3 was never instructed to take photos of this specific room, and its internal images. Photograph P4 does not show that room entirely. It is urged by the defence that the effect of section 114(g) of the Evidence Act 1950 (EA/Act56) shall apply, suggesting that the prosecution has suppressed evidence regarding the other occupant at the said premises. [11] Therefore, defence maintains that OKT 2 and OKT 3 were caught at the wrong place and at the wrong time and it is for this court to acquit and discharge both of them without them having to enter on their defence. Analysis and Findings [12] Analysis of this case centres on the failure by the prosecution to establish a prima facie case against both OKT 2 and OKT 3, following the death of the primary suspect, the deceased, OKT 1 Mohd Nazri and the specific evidentiary gaps as identified by the defence. [13] To succeed with proof for an offence of drug trafficking under section 39B of the DDA, the prosecution must prove that the accused persons have mens rea possession of the impugned drugs. But, the evidence outwardly shows otherwise. • Keys to the premises were found only with the deceased OKT 1. The remaining accused persons did not possess keys, suggesting they did not have the power to exercise legal control over the premises. They are also not in the position to exclude others from it. • The deceased led the raiding team to the location and admitted to the storage of illegal items. In contrast, the remaining accused persons were merely found sitting in the living room. • While OKT 2, Zulsahfarin was listed as the tenant, the defence successfully argued that he and OKT 3 were casual visitors rather than permanent occupants with shared knowledge of the room's contents. Mere tenancy, albeit seemingly, does not equate to exclusive control over every item in the premises when shared with others. The prosecution failed to establish exclusive control over the location where drugs are found, particularly when other occupants, including deceased OKT 1 as well as the occupant of Bilik F, have equal access. (See Choo Yoke Choy v PP (1992) 2 MLJ 632 SC). • During the raid, both OKT 2 and OKT 3 demonstrated negative knowledge, as they could not point to where the drugs were hidden, unlike OKT 1, the deceased who led the police to the location. • Their negative knowledge during the search, coupled with the fact that the bulk of the drugs were hidden in a wardrobe and a separate room, creates a significant gap in proving they knew of the existence of the 4,790.1 grams of cannabis. Moreover, there was another unidentified occupant at Bilik F. • The DNA results, exhibits P74, P75 served as exculpatory evidence rather than incriminating evidence for the charge of drug trafficking against OKT 2 and OKT 3. They were positively excluded as contributors to the DNA found on the shirt Kemeja 2 and the towel Tuala 3. • The only DNA match for them was on a cigarette butt. While this proves they were physically present in the living room, it goes to only show mere presence and not mens rea possession of the impugned drugs stored in the bedrooms or participation in trafficking of the same. • The prosecution has failed to present a complete picture of the occupants, since testimony from SP1 indicated Bilik F appeared inhabited, yet it was omitted from the official photographic evidence, exhibit P4. The failure to account for other potential occupants or investigate the entire occupancy of the apartment suggests a selective presentation of facts, leading to the invocation of adverse inference under section 114(g) of the EA. This court is entitled to infer that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. (See the oft quoted case of Munusamy v PP (1987) 1 MLJ 492 SC). The failure to investigate other potential occupants creates a reasonable doubt as to whether the drugs belonged exclusively to the remaining accused persons, OKT and OKT 3. • While section 37(da)(vi) of the DDA presumes trafficking for quantities over 200 grams of cannabis, this presumption is only triggered once mens rea possession is proven by the prosecution via credible evidence which withstood cross-examination. But alas! the prosecution has failed to prove that both OKT 2 and OKT 3 had mens rea possession of the impugned drugs found in the private bedrooms. Thus, the presumption of trafficking could not be invoked against them. [14] Flowing from the above, when acquitting and discharging OKT 2 and OKT 3, this court had rendered its broad grounds of judgment as below which was read out in open court.

Primarily this case at hand, hinges on the ability of the prosecution to prove the fundamental elements of possession and knowledge against OKT 2 and OKT 3 in the absence of OKT 1 who is now deceased. He is instrumental to the raid and seizure which took place at the premises on the material date, as he led the raiding officer and his team to the said premises.

The related legal and factual arguments that is material to the case are:

The Paraphernalia, which are the digital scale, knife, etc. The Defence has successfully shown the investigation was not channelled to link the drugs with the paraphernalia, for the following reasons – • Failure to Fingerprint/DNA the Paraphernalia: • Reliance is on the limited DNA findings. • A powerful extension is the failure to adduce DNA or fingerprint evidence from the actual trafficking tools (scale, knife, cutting board) that would have definitively linked OKT 2 and OKT 3 to the act of trafficking. • Without this, the presence of the tools is hardly of any weightage, specially so in the absence of OKT 1, the deceased who had led to the house in which OKT 2 and OKT 3 were found, claimed to be housemates by the deceased OKT 1.

The User vs. Trafficker Dichotomy: Even if the court accepts the paraphernalia leading to a trafficking operation, the DNA evidence only links OKT 2 and OKT 3 to a cigarette butt, an item of personal consumption/use. At the highest, this evidence only proves drug consumption (a lesser offence under section 15 DDA), not participation in the trafficking operation itself, thereby reinforcing the casual visitor theory.

Legal Argument on Joint Possession and Exclusive Control The defence correctly argues that OKT 2 and OKT 3 lacked keys. That solidifies non-exclusive occupation and its effect on possession, which are: • Requirement for Exclusive Control. • For the court to draw an inference of possession, the prosecution must eliminate the possibility of other people (besides the accused persons) having equal access. • The defence already pointed out the co-accused (the deceased) and the unknown occupant of Bilik F. The law is trite, emphasizing the need to exclude others when dealing with premises possession, particularly where the drugs are not in plain view (the drugs were found in a black bag in a cabinet and a green plastic packet on the floor). They can argue that if a reasonable doubt exists that the drugs belonged to the deceased (OKT 1) or the occupant of Bilik F, the presumption of joint possession against OKT 2 and OKT 3 must fail.

Evidential Argument on the Deceased's Alleged Statement The prosecution's submission mentioned that the deceased (OKT 1) confirmed OKT 2 and OKT 3 were his housemates and that he had illegal items stored. It is apparent that the statement made by the deceased co-accused to SP5 (the raiding officer) is inadmissible as hearsay. It is evidence given without oath and without the ability to be tested by cross-examination, making it of no probative weight against OKT 2 and OKT 3. This neutralizes one of the few direct claims linking the deceased's knowledge to the other accused.

Gaps in the Investigating Officer's (IO's) Evidence (SP6) There exists an odd discrepancy regarding the DNA exhibits: • 8 items were confiscated, but only 4 items were listed as handed over to the IO (P75). • Chain of Custody and Integrity - This discrepancy points to a break in the chain of custody or a flaw in the investigation process. This inconsistency is not just a minor clerical error but raises a fundamental doubt as to the integrity of the evidence handling, particularly the DNA exhibits (P46, P74, P75). If the evidence trail is flawed for the DNA exhibits, it weakens the reliability of the only items the prosecution uses to place OKT 2 and OKT 3 at the scene.

Flowing from evaluation of the evidence tendered by the prosecution, the circumstantial evidence tendered by the prosecution, when subjected to maximum evaluation, is so fraught with doubt, contradiction, and gaps that it is not credible evidence that would establish a prima facie case, justifying OKT 2 and OKT 3 to be ordered to enter on their defence.

Thus, they are acquitted and discharged of the charge against them, which is for an offence of drug trafficking with common intention of them with the deceased co-accused. [15] Consequently, this court finds that OKT 2 and OKT 3 were victims at the wrong place, wrong time. It is established they were merely casual visitors, found there by the raiding team at the material point of time. The evidence proffered by the prosecution links the premises and drugs materially to OKT 1, the deceased cum tenant of the premises and also another occupant who is not detailed from the investigation that has ensued. It fails to bridge the gap to prove a common intention amongst all of them to traffic dangerous drugs. On that score, a prima facie case has not been established, warranting an order of acquittal and discharge. Thus, a prima facie case has not been made out against OKT 2 and OKT 3 pursuant to section 180 (1) read together with 180 (4) of the Criminal Procedure Code (CPC/Act 593). Pursuant to section 180 (2) of the CPC, both OKT 2 and OKT 3 are acquitted and discharged at the close of the case of prosecution. Accused persons acquitted and discharged. Dated 25 February 2026 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties DPPs Harvind Raja Gopal and Joshua Tee Yee Khuan for and on behalf of the Attorney General’s Chambers for the prosecution. DC Hasnan bin Hamzah of Messrs. Hasnan Hamzah (assigned by the Court) for and on behalf of the accused persons.