[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v MUHAMAD SHAHRUL NAIM BIN MOHAMAD ZAIN (WA-45A-70-06/2022)

1.

MUHAMAD SHAHRUL NAIM MOHAMAD ZAIN HASHIM TENDOT B. ABDULLAH JUDGMENT Preface [1] The accused, Muhamad Shahrul Naim Mohamad Zain (hereinafter referred to as OKT 1) and Hashim Tendot B. Abdullah (hereinafter referred to as OKT 2), are jointly charged for an offence of drug trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA/Act 234), in furtherance of their common intention to traffic dangerous drugs pursuant to section 34 of the Penal Code (PC/Act 574). [2] Allegation in the charge against them is that on 11.2.2022, at approximately 12.30 am at Unit C-56-6, Sky Suites @ KLCC, Jalan P. Ramlee, Dang Wangi, Kuala Lumpur, they trafficked 220.38 grams of Methamphetamine (meth), a dangerous drug. [3] At the close of the case of prosecution, this court is tasked to determine if the prosecution has established a prima facie case against both the accused persons. As known in law, a prima facie case is one where the evidence presented, if unrebutted, is sufficient to warrant a conviction. This requires maximum evaluation of the evidence proffered in the case, comprising testimony of prosecution witnesses (PWs), cross-examined by the accused persons via their counsel. The law is statutorily mirrored in section 180 (4) of the Criminal Procedure Code (CPC/Act 593) and also lucidly articulated in the landmark case of Looi Kow Chai v PP (2003) 2 MLJ 65. If a prima facie case is made out, the accused will be called upon to enter their defence pursuant to section 180 (3) of the CPC, otherwise they will be acquitted pursuant to section 180 (2) of the CPC. Case of the Prosecution [4] The prosecution's case rests on the testimony of two key witnesses, Inspector Yogakanesh a/l Thanabalan (SP1), the raiding officer (RO), and Inspector Muhammad Zuhairi (SP2), the investigating officer (IO). The facts presented are the following: • On the night of the incident, SP1 led a police raid on the aforementioned condominium unit. • OKT1 opened the locked door to the unit. OKT2 was found seated in the living room. • Both accused led the police to a room where OKT1 retrieved a black bag containing four large transparent packets and a blue plastic packet of drugs. • A chemist's report (Exhibit P18) confirmed the substances were meth weighing 220.38 grams. The defence did not challenge this report. Thus, there is admission it was dangerous drugs as confirmed by the chemist. [5] The prosecution contends that they have proven three essential ingredients of the offence, which are: • Possession and Knowledge: It was argued that since OKT1 and OKT2 were the only individuals in the unit and OKT1 retrieved the drugs, they had joint possession and knowledge of the drugs. The prosecution further notes that the unit had been rented since 9.2.2022. • Dangerous Drugs: The chemist's report conclusively proved the substances were meth. • Trafficking: The prosecution seeks to invoke the presumption of trafficking under section 37(da) (xvi) of the DDA, given the substantial weight of the drugs found, exceeding 50 grams of the statutory threshold. Defence [6] The defence advanced for both OKT1 and OKT2 had collectively argued that the prosecution had failed to establish a prima facie case. [7] OKT2 maintains that he was merely a guest and had no knowledge or control over the drugs. His arguments are the following: • Lack of Control and Custody: No personal items, such as keys or clothes, belonging to him were found in the unit. He was not the tenant. • Absence of Proximity: He was in the living room, while the drugs were located in a separate bedroom, in a black bag that concealed the contents. • Hearsay Evidence: Step taken by the prosecution to utilize a police statement from a housing agent, Main Uddin (Exhibit P25), to prove rental of the unit and presence of OKT2 at the said unit, instead of calling him as a witness, was argued to be reception of inadmissible hearsay evidence as the prosecution had failed to make an exhaustive search for the witness. [8] Likewise, OKT1 too asserts that the drugs did not belong to him and that he was merely a guest at the unit, not a tenant. His key contentions are: • Failure to Prove Tenancy: The prosecution did not produce a rental agreement or any other document to prove OKT1 had rented the unit. The defence also challenged the authenticity of the police statement from the housing agent, citing also a suspicious date on the said statement. • Lack of Exclusive Possession: It was pointed out that there was presence of another individual, Mohd Najib bin Muhamad Nasir (Najib), who was arrested earlier in a related matter and had known of the drugs in the said unit. Hence, it is argued that failure by the prosecution to call Najib as a witness raises serious doubt on the case of prosecution and had left a gap in the case of prosecution. • Incomplete Investigation: The defence had taken issue with the case IO for not conducting a thorough investigation into the unit's access system, since the unit in issue is rented out as an Airbnb. Thus, it is accessible to all and sundry subject to tenancy requirements which could be short, intermediate or long stay, only known by Main Uddin, who was not made available as witness for the purpose of cross-examination in order to illicit the truth on the issue of tenancy. Maximum Evaluation [9] On a maximum evaluation of the prosecution's evidence to determine if it is sufficient to order the accused persons to enter on their defence to the preferred charge, the following are findings of this court: • On the element of possession and knowledge, the prosecution's case against both accused is intertwined. • The prosecution's evidence hinges on the fact that OKT1 and OKT2 were the only two individuals in the unit when the police arrived. • However, defence advanced by OKT1, has raised reasonable doubt on his tenancy of the unit, pointing to absence of a formal rental agreement, keys, or personal belongings. • Reliance on the out of court police statement of the housing agent, Main Uddin, is a significant weakness in the case of prosecution. His presence in court as a witness is paramount, in order for the accused persons to advance their defence, specially so on tenancy of the unit, which is a material issue in the case against them. His appearance as witness would coincide with the best evidence rule. • The prosecution's failure to call this witness, combined with the challenge by the defence on the admissibility of his statement as evidence, it being only hearsay, casts a long shadow over the claim that OKT1 was the tenant. • Further, argument by the defence as to presence of another individual, Najib, cannot be ignored. The fact that Najib was arrested in a related drug case and had knowledge of the drugs seized at the unit, where both the accused persons were arrested, raises questions on exclusive possession. • The connection between Najib, the unit and the impugned drugs found is demonstrated by production of D15, a police report detailing his arrest at the place of raid at Sky Suites, on the day before. Existence of D15 throw a spanner in the works raising a reasonable doubt on the case of prosecution. • Failure to call him as a witness also creates a gap in the prosecution's narrative; a gap that the court cannot be filled with conjecture. In law, non-production of Najib, a material witness, warrants invocation of an adverse inference against the prosecution pursuant to section 114 (g) of the Evidence Act 1950 (EA/Act 56). The inference is that, if Najib had been called, he could have tendered supporting evidence for the accused persons, if the accused persons were really tenants or only guests at the said unit. His absence as witness also supports the evidential argument that there could have been an oblique motive on part of the prosecution to withhold him from testimony in open court, to hinder the defence or suppress evidence favourable to the accused. The non-calling also leads to a breach of the prosecution’s fundamental duty to disclose all material evidence relevant to the defence. (See the case of Chia Leong Foo v PP (2000) 6 MLJ 705; Adel Muhammed El Dabbah v AG of Palestine (1944) 2 AER 139 PC). • With regard to OKT2, the prosecution's case is even weaker. The defence has successfully highlighted that OKT2 was only found in the living room, separated from the drugs by a wall. There is no direct evidence to prove he had knowledge of the contents of the black bag or had any control over the drugs. • The prosecution's argument that he had common intention with OKT1 is based on mere presence, which is insufficient. The law requires a meeting of minds to traffic, which is absent as no such evidence was presented or proffered by the prosecution. [10] There are also several other factual points to support the claim that the prosecution had failed to prove both the accused persons have mens rea possession of the drugs, which are: o Status of accused persons at the location: The defence argues that the location of the arrest was an Air BNB, with constantly changing tenants, and there is no evidence to show that both the accused persons were tenants. Crucially, no personal belongings, documents, keys, access cards, or fingerprints belonging to them were found in the unit. There is also no CCTV footage on their presence at Sky Suites, and the unit, which was the place of raid. All these would be confirmatory or corroborative evidence, which would be material in the case, to prove that the accused persons had care and management or control and custody of the premises or the drugs found there. In the absence of that, defence advanced that they were merely guests would prevail. o Lack of close proximity: The defence highlights that OKT 2 was found in the living room, and OKT 1 had opened the door to the unit, while the drugs were in a separate bedroom. A wall and door separated the two areas. There is no evidence, such as DNA, fingerprints, or personal items, to show that they ever entered the room where the drugs were found. Although such evidence would be corroborative or confirmatory, but to link and pin the accused persons with the impugned drugs, it would be a material piece of evidence, if gathered. o Condition of the drug-containing bag: The drugs were found in a black briefcase on a rack. The defence points out that the contents of the briefcase were not visible from the outside, meaning the accused persons would not have known what was inside without opening it. In fact, the RO, SP1 agreed that the brief case was not shown, held, or handed over to the police by any of the accused persons. That too, leaves a nagging doubt in the investigation of this case as to where the drugs were found or is it merely recovery upon arrest of Najib, who could have been author of the entire episode and knew of the existence of the drugs at the said unit. In fact police report D15 provides the connecting link with Najib and this case involving the accused persons. o Presence of other individuals: There are several other points of doubt highlighted in terms of other individuals who might have had access to the unit. These include: ▪ The disappearance of a luggage bag that SP1 saw but SP2 did not. The defence questions who removed it and who it belonged to, as it wasn't linked to either of the accused persons. ▪ The disappearance of a television that SP1 saw but SP2 did not. o The arrest of another individual named Mohd Najib bin Muhamad Nasir at the same building earlier: This individual was arrested with drugs similar to those found in the unit. The defence questions this person's connection to the unit and argues that the prosecution's failure to call him as a witness creates a favourable inference for the accused. He has a link with the accused persons when they came in to stay at the unit. The case IO SP2, had confirmed that Najib was the one who informed the police about Unit C – 56 – 6 and knew about the drugs inside. He had also confirmed that the arrest of OKT 1 was in connection with the arrest of Najib, vide police report D15. In fact, SP2 could not confirm when the drugs were placed in the unit or who placed them there. o Main Uddin could have thrown light on the tenancy of the unit but he went missing. The evidence laid down pinpoints the possibility of access by third party including Najib to the said unit. It is trite law that the burden is on the prosecution to exclude access of the said unit by others to prove that the accused persons were exclusively in possession of the impugned drugs. The burden is never on the accused persons to exclude possibility of access. They are only required in law to raise a reasonable doubt. (See Chan Wei Loon v PP & Another Appeal (2021) 6 CLJ 623 FC). Doubt arises in this case, that other individuals (including Najib) would have had access to the premises and could have concealed the impugned drugs there. (See Gooi Loo Seng v PP (1993) 2 MLJ 137). o Admissibility of police statement: The defence had argued against utilization of a statement from an alleged agent/caretaker of the unit, Main Uddin (Exhibit P25). The prosecution had used this statement to prove OKT 1 was the tenant and that OKT 2 was present during the tenure of the rental agreement. The said statement although produced and admitted in court, lacks probative value in terms of its weight as evidence, as its content could not be verified without presence of the maker. That in fact prejudices the accused persons, whom had seriously contended that they were not the tenants of the said unit, and access to it was only because they were there as guests when the police had raided the premises. o Although admitted as P25, it is claimed by the defence, that the prerequisites for its admissibility were not met pursuant to section 32(1)(i) of the EA. It was also argued, that search for the witness by the police was not exhaustive, and immigration records showed no record of the witness leaving Malaysia, thus raising doubts on his whereabout. Point of doubt is if his absence in court as witness is deliberate. P25 is admitted as evidence in the absence of the maker pursuant to section 32

(i) of the EA, but its probative value vis weight of it as admissible evidence to prove a fact in issue, i.e. tenancy of the said unit is naught. His direct evidence subject to cross-examination by accused persons would be paramount, without which the material issue if the accused persons were tenants or merely guests stands not proven beyond reasonable doubt. o Furthermore, there were no documents to confirm his identity or his role as an agent for the unit owner, and the date on the statement was inconsistent with the date of the incident. Ultimately, the defence asserts that his substitute evidence in the form of police statement P25 is unreliable and should be considered hearsay and disregarded. o Not tracing Main Uddin sets an unhappy circumstance in this case and for that the accused persons cannot be penalised for lack of ingenuity in police investigation depriving them of the time-honoured benefit of doubt. (See Pang Chee Meng v PP (1992) 1 CLJ 39 SC). [11] There are also significant doubts on the timeline of events presented by the prosecution, which yields in the following manner: • According to the defence, SP2 provided a confusing and inconsistent timeline. For example, SP2 stated that the accused persons were arrested on 11.2.2022 at 7.55 pm but SP1 began investigation on the same day, between 2.30 to 4 pm, and the exhibits were handed over at 8.45 pm, which is inconsistent with the Borang Serah Terima Barang Kes (P9), between SP1 and SP2, which shows the time as 8.45 am. • Furthermore, SP2 claimed to have received the receipt P17 from the Chemistry Department at 2.00 pm on 11.2.2022, but the receipt itself is dated 17.2.2022. • Another discrepancy is that SP2 stated P17 was received at 2.00 pm on 11.2.2022, while SP1 only prepared the exhibits to be sent to the Chemistry Department on 17.2.2022 at 8.00 am. • The out of court statement from the house agent, P25 is dated 11.1.2021, which is more than a year before the first accused was arrested. Findings and Conclusion [12] These inconsistencies and flawed timelines, in the absence of cogent explanation by the PWs, shows lack of accountability on the part of both SP1 and SP2 when they collected the exhibits at the scene of crime for further action. It also throws doubt on the integrity of the evidence collected and subsequently used as proof against the accused persons. Ultimately, the doubt would be, if it is the same exhibits seized at the scene of crime, then tendered in court as proof. Doubtful was also handling of the evidence collected. [13] The cumulative effect of the above lapses and doubts renders the case of prosecution falling short of proof of a prima facie case against both the accused persons. The gaps and doubts are significant, particularly concerning the issues of exclusive possession to the unit in issue by the accused persons, knowledge of the impugned drugs, common intention, as well as identity of the exhibits collected and produced in court as proof. The prosecution had failed to fill in the gaps leaving an abyss in the case of prosecution. (See Ibrahim Mohamad & Anor v PP (2011) 4 CLJ 113 FC). [14] Reliance by the prosecution on inadmissible hearsay evidence due to failure to call key witnesses have weakened the case of prosecution, to the point where it cannot stand on its own. The evidence, as it stands, is not so compelling that if left unrebutted, it would lead to a conviction. Therefore, this court, exercising its powers under section 180 (2) of the CPC, finds that the prosecution has failed to prove a prima facie case against both the accused persons, Muhamad Shahrul Naim Mohamad Zain and Hashim Tendot B. Abdullah. Thus, they are acquitted and discharged of the charge preferred against them, without having to defend themselves. Both accused persons acquitted and discharged. Dated 26 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 Manoharan Malayalam together with DC Nur Syamimi Adriana binti Shaharim of Messrs M Manoharan & Co. for an on behalf of the First Accused. DC Shah Rizal bin Abdul Manan together with DC Nik Muammer Hurrie Bin Mohamad Sukri of Messrs. Shah & Hurrie for and on behalf of the Second Accused.