11.15 malam bertempat di dalam bilik kedua 40 sebelah kanan tingkat atas rumah No. 7, Jalan Nakhoda Bestari 2, Taman Nakhoda Bestari, 32200 Lumut di dalam Daerah Manjung, Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya iaitu sejumlah berat 702.0 gram Cannabis dan oleh 45 yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Background facts 50 [3]. On 8 November 2016, acting on prior intelligence and surveillance indicating drug-related activity, a narcotics team from IPD Manjung led by SP3 (L/Kpl Syed Azmir) conducted a raid at a two-storey terrace house located at No. 7, Jalan Nakhoda 2, Taman Nakhoda Bestari, Sitiawan, Perak. Following a pre-raid briefing, the 55 team arrived at the premises at approximately 12:30 pm and entered the house. The officers split into two groups: one remained on the ground floor while the other proceeded upstairs. On the ground floor, six Malay individuals were found and subjected to a body search, which yielded no drugs. However, a black tin was discovered on the 60 living room table containing 235.2 grams of compressed dried plant material suspected to be cannabis. Two of the six individuals, PW8 and PW9, tested positive for cannabis use, but no charges were filed in respect of the drugs found downstairs, as they were not attributed to any individual. 65 [4]. The occupants of the house were distributed across four rooms. Room 1 on the ground floor was occupied by Farid. Upstairs, Room 2 (with shared bathroom) was shared by Nazrul Afiq bin Nordin and Ridhwan, Room 3 (which is the other room with shared bathroom) was occupied by the accused, Muhammad Amirul Ashraf bin 70 Muhammad Syafiq. In contrast, the master bedroom (Room 4) was shared by Muhammad Naim bin Rosli (SP8), Bob, Azrul, and Alif. Upon entering Room 3, the police knocked and identified themselves. and was subjected to a body search, which yielded no illegal items. 75 After being cautioned to surrender any contraband, the accused handed over a white polystyrene box (P12B) from the middle of the room. It contained 702.0 grams of compressed dried plant material suspected to be cannabis, wrapped in newspaper and plastic, and concealed within a black plastic bag. The accused was arrested on 80 the spot. [5]. Further items seized from Room 3 included a yellow futsal jersey, black jeans, a toothbrush, and cigarette butts. DNA analysis by SP5 - DNA, and the jeans contained a mixture of DNA from the accused and 85 Mohd Fariq Syukran (who occupies room 1 downstairs). The toothbrush and one cigarette butt contained DNA matching that of Nazrul Afiq bin Nordin and Muhammad Naim bin Rosli, who reside in rooms 2 and 4, respectively. Fingerprint testing was conducted on the cannabis packages prior to their submission to the Chemistry 90 Department, but no identifiable prints were recovered. No fingerprint centred solely on the 702 grams found in Room 3; the drugs downstairs were not the subject of any charge. General proposition of the Law 95 [6]. standard to be met by the prosecution is to establish a prima facie case, as required by section 180(1) and (3) of the Criminal Procedure Code (CPC). The definition and extent of this standard is expressly codified in section 180(4) CPC: 100 made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant 105 [7]. This means that the prosecution must present credible evidence on every essential element of the charge, such that if the accused remains silent, the court must be prepared to convict based solely on the prosecution's case. 110 [8]. In Looi Kow Chai & Anor v PP [2003] 1 CLJ 734; [2003] 2 MLJ 65; [2003] 2 AMR 89; [2000] 2 MLRA 383; [2002] 2 MLRA 383 at p.736, the Court of Appeal succinctly articulated this threshold: subject the evidence of the prosecution to a maximum 115 evaluation and then ask himself this question: If I decide to call upon the accused to enter on his defence, and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution's 120 [9]. prima facie case exists, and the accused must be acquitted under section 180(2) CPC. [10]. The Federal Court in Balachandran v PP [2005] 1 CLJ 85; [2005] 2 MLJ 301; [2005] 1 AMR 321 elaborated the concept further 125 at p.99: accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be 130 close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative, then a 135 [11]. However, the courts have also warned that prima facie evidence must not be equated with proof beyond reasonable doubt. That higher threshold applies only at the end of the full trial under section 182A CPC. The trial judge must undertake a positive evaluation of the 140 value. If the prosecution's evidence is inherently weak, inconsistent, or riddled with gaps, then the court may not be justified in calling for the defence . [12]. Finally, in Sathya Vello v PP [2022] 5 CLJ 659; [2022] 4 MLJ 111; [2022] 5 MLRA 74, the Federal Court reaffirmed that a prima 145 facie case requires credible and reliable evidence of each element, primarily when the prosecution relies on statutory presumptions under section 37(d) or 37(da) of the Dangerous Drugs Act 1952. The court also emphasised that the accused, once called, may rebut such presumptions on the basis of a 150 balance of probabilities. Elements of the Offence [13]. To establish an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952, the prosecution must prove the following essential elements beyond a reasonable doubt: 155 i. That the substance in question is classified as a dangerous drug listed in the First Schedule of the Dangerous Drugs Act 1952; ii. That the said drug was in the possession of the accused, encompassing custody, control, and knowledge; and 160 iii. That the accused was found to be trafficking in the said dangerous drug, whether by actual act or by statutory presumption. Element 1: Whether classified as a dangerous drug [14]. The court is satisfied without challenge from the defence that 165 the first element has been proven. Through the expert testimony of SP2, a qualified chemist, and supported by the chemistry report marked P16, the substance seized was confirmed to contain 702.0 grams of cannabis, which is a dangerous drug listed under the First Schedule of the Dangerous Drugs Act 1952. The chain of custody 170 was properly maintained and unbroken. Accordingly, the court accepts the chemical analysis and finds that the prosecution has duly established the first element of the charge. Element 2: Whether the Drugs Were in the Possession, Custody, and Control of the Accused 175 [15]. This court has given careful and detailed consideration to the issue of whether the prosecution has established that the accused was in possession, custody, and control of the drugs found in the white polystyrene box marked as P12B. Based on the entirety of the evidence before the court, this element has not been proven beyond 180 a reasonable doubt. [16]. To invoke the statutory presumption under section 37(d) of the Dangerous Drugs Act 1952, the prosecution must first establish, as a foundational requirement, that the accused had both custody and control of the drugs. This principle was clearly stated in PP v Tan Tatt 185 Eek & Ors [2005] 2 MLJ 685; [2005] 2 AMR 353; [2005] 1 CLJ 713, where the court held that the presumption under section 37(d) cannot arise unless the fact of custody or control is first affirmatively proven. It is insufficient to rely solely on proximity or presence. [17]. In this case, the prosecution alleges that the accused voluntarily 190 handed over the box during the raid and that this act was sufficient to establish possession. However, the context and circumstances of this accused complied with a direct caution issued by the police during a raid. It is not in dispute that no drugs were found on the accused. 195 Instead, the item was retrieved only after the investigating officer administered verbal caution box, without more, cannot be equated with conscious possession. This is particularly so where there is no accompanying statement by the accused indicating knowledge or ownership of the contents, and 200 no forensic evidence links him to the drugs. At the very most, it is a case of the drugs found were in close proximity to the accused [18]. The court also notes the following factual circumstances that severely weaken the inference of possession: a) 205 i. The accused was not the sole occupant of the premises. Several others resided there, including the accused, 7 of them, and two of whom tested positive for cannabis. Room 3, where the drugs were found, was not under the exclusive control of the accused. Multiple witnesses, 210 including Nazrul Afiq and Muhammad Naim, testified that the doors in the shared rental house were generally left unlocked. However, when the shared bathroom door connecting between Room 3 and Room 2 is locked, Nazrul and Ridhwan had confirmed that they had 215 previously entered Room 3 to access their toilet, especially when access from their own room was locked from the inside. ii. Further, forensic analysis confirmed that a toothbrush and a cigarette butt from Room 3 carried DNA matching 220 Nazrul Afiq bin Nordin and Muhammad Naim bin Rosli, respectively. Also, a pair of jeans seized from the same room revealed a DNA mixture from both the accused and Mohd Fariq Syukran, who occupied Room 1 downstairs. These scientific findings without a doubt support the 225 conclusion that exclusive possession of the room is not with the accused, as all occupants had access to each sometimes the rooms may have been locked, the key was accessible within the premises. It was also undisputed that the location of the house key 230 was known among all occupants and accessible even to ex-housemates. In these circumstances, the court finds that Room 3 was accessible to individuals beyond the accused, casting reasonable doubt on exclusive possession or control of the items seized 235 therein. The lack of exclusive access casts real doubt as to who had custody or control over the drugs. b) Possession and Knowledge i. The prosecution relied on the statutory presumption under 240 section 37(d) of the Act. However, as held in PP v Tan Tatt Eek (supra), this presumption only arises if control and custody are first proved. ii. Here, the box was not found on the a While the accused was present in the room and handed 245 over the box, the circumstances did not conclusively establish exclusive possession. He was one of several occupants in the house; others tested positive for cannabis. Crucially, SP3 admitted he did not know who placed the drugs there or how long they had been in the 250 room. iii. The court also takes judicial notice that the mere act of handing over an object under duress (caused by caution), particularly during a raid, does not automatically amount to voluntary possession, especially without forensic or 255 corroborative linkage. c) i. The court finds that the prosecution failed to properly investigate a material third-party suspect, one by the 260 , whose presence at the premises during the police raid, which was raised as a plausible line of defence. Although the prosecution called witnesses such as SP8 (Muhammad Naim bin Rosli) and SP12 (Mohamad Ridhwan bin Mohamad Rusdie), who initially 265 stated that Alif had gone back or the raid, this assertion crumbled under cross-examination. SP12 admitted that his belief was based observation. Upon being challenged, SP12 270 whereabouts during the raid and eventually conceded that after his remand, he learned that Alif had not left for his hometown but had, in fact, fled the scene during the raid by jumping off a balcony or porch. This material revelation 275 casts serious doubt on the completeness of the investigation. I append below the evidence of SP12 during cross-examination SP12 (6/8/2024) Mohamad Ridhwan bin Mohamad Rusdie Eh 280 Pasti. Saya tanya sekali betul-betul pasti ya? Sebab kalau saya ada bukti yang Alif memang ada dekat situ hari itu, kita akan minta awak untuk 285 kena contempt. Boleh masuk penjara. Boleh masuk penjara jangan main-main. Ingat betul-betul balik. Alif ada dekat situ hari itukan? Ini jangan menipu kat mahkamah. Kita ada bukti mengatakan yang Alif ada dekat situ, 290 awak boleh kena contempt tahu. Saya boleh minta court initiate contempt proceeding sebab awak membohong. So sekarang ni Alif ada kan hari tu? Kalau kat bawah tak ada. 295 Tapi dia ada kan hari tu? Saya tak pasti. Tak pasti? Tak pasti. Sekarang tak pasti pula? 300 Saya tak ingat. Kat bawah tu memang dia tak ada. Tapi tahulah yang sebenarnya kemungkinan dia ada? Alif? Boleh jadi. 305 Boleh jadi. Tahu tak yang Alif ini yang lari daripada serbuan? Tahu tak? Lari? PB: Ya. Dia adalah salah seorang yang lari daripada 310 serbuan pada hari tu. Kita boleh check, kita boleh panggil siapa-siapa kalau dia balik kampung betul eh? Boleh tahu eh? Setuju. Hah? 315 Setuju, setuju. Dia adalah salah seorang yang lari pada hari itu? Betul? Boleh jadi. Betul? 320 Betullah kot. Betul Alif lari pada hari itu? Masa serbuan dijalankan? Betul. Ya, baik. Kan senang cakap benda yang betul. 325 Kan? Lepas keluar baru saya tahu. Pakai kopiah nak menipu buat apa? Tak menipu. Mah: Apa-apa yang dikatakan tadi? 330 PB: YA, Alif lari. Selepas habis reman baru tahu. Mah: Reman baru tahu apa dia? Baru tahu Alif ada. Alif tak balik. PB: Alif tak balik kampung YA. Dia kata lepas 335 reman baru dia ingat, baru dia tahu yang Alif ini tak balik kampung dan orang yang lari pada hari itu. Mah: Dia lari dari mana? Dari rumah? Dari rumah tempat serbuan. 340 PB: So dia menyorok kan? Dia menyorok dekat ada tepi sebelum dia boleh lompat. Ada area untuk dia lompat itu? Dia macam ada apa dia panggil? PB: Porch. 345 Macam porch itulah. PB: Dekat balkoni itu dia boleh lompat ke bawahkan? Dia boleh lompat. 350 ii. SP8 likewise testified that Alif was a co-occupant of the master bedroom, which is upstairs. However, SP8 had no and merely relied on what Bob told him, that both Alif and Bob had gone back to their hometowns. At no point did 355 SP8 confirm having seen Alif leave, nor did he witness or His knowledge was hearsay, and he admitted to having minimal interaction with most housemates due to his work schedule. Despite these gaps the Investigating Officer 360 made no effort to trace, interview, or exclude Alif as a determine his access to the rooms, or to reconcile his possible connection to the drugs or items recovered. The evidence from the prosecution witnesses, stating that Alif 365 balik kampung, and the evidence elicited during cross-examination are both hearsay evidence. No witness who testified actually heard from Alif that he is leaving for his kampong, all of them heard it from someone else. As such, it should be the prosecution to investigate this 370 issue and call Alif as a witness. iii. This failure is not a mere oversight. It strikes at the core and knowledge. The evidence demonstrates that Alif was not only a resident of the house but also potentially 375 present at the material time. That the prosecution neither traced him nor produced any evidence ruling out his involvement leaves open a real and credible alternative hypothesis, that Alif could have brought the drugs into Room 3, which the prosecution attributes to the accused. 380 In a case hinging on circumstantial evidence, the suppression or neglect of such a material investigative iv. This failure to investigate a known and relevant third party, who had a direct physical connection with the scene, 385 Suppression or neglect of material investigative leads undermines the burden of proof that lies with the prosecution. v. It is this court's finding that the police investigation was 390 clouded by the pre-investigation information they had gathered on the accused. This prejudiced the investigation process. Once the accused, who was the subject of the pre-investigation information, was apprehended, the prosecution did not consider it 395 necessary to pursue any further investigation on Alif. This is a serious investigative shortcoming that has left a . d) Forensic Gaps 400 i. No DNA or fingerprint evidence links the accused to the box or its contents. The chemist's report also confirmed the absence of drug residue on the accused's body or belongings. In the absence of any scientific link, the physical association between the accused and the drugs 405 is weak, as it is based only on indirect or circumstantial evidence. e) Selective Prosecution i. It is also troubling that despite the presence of several 410 individuals in the house, some of whom were found to have consumed cannabis, only the accused was charged. No explanation was given as to why others who were arguably in closer proximity to other drugs found in the living room were not investigated or prosecuted. This 415 selective approach adds to the perception of arbitrariness and lack of evidentiary certainty. ii. The court also rejects the prosecution's reliance on section 8 of the Evidence Act 1950, which provides: 420 8