[Pejabat Pengarah Pendakwaan Negeri Kelantan] v Mohd Khairu Azharien Bin Ismail (DJ-83D-1127-09/2020)

Upon reading said charge, the Accused pleaded not guilty and claimed trial.

Upon close perusal of evidence presented by both parties to this proceeding, and upon applying maximum evaluation to the same set of evidence, this Court, on 27h of August 2024 found that the Accused had failed to cast reasonable doubt against prima facie case (beyond reasonable doubt) that had been proven by the prosecution against the S/N yi9AtIex0EaacDFrLmaU4g **Note : Serial number will be used to verify the originality of this document via eFILING portal Magistrate Rais Imran bin Hamid Page 2 of 44 Accused for said charge.

It should be emphasized that in its inception and throughout an earlier stage of this proceeding, this case was first heard by previous magistrates and is later on continued by me. Upon assuming this role, I had examined the Notes of Proceeding in its entirety, alongside minutes and exhibits as tendered in court and I resumed to hear this proceeding as if it was heard from the very beginning by me.

This Grounds of Judgment is written to explain the rationale behind this court's decision against the Accused dated 27th of August 2024.

On 17th September 2020 at about 5.00 pm, L/Kopl Roystoon bin Lajimin (“PW5”) with his task force team consisting of another 2 police officers namely Nazri and Ramzan from Meranti Police Station, Pasir Mas was out on patrol at Kampung Gelang Mas, Pasir Mas. [7] There, PW5 sighted a green Perodua Viva bearing registration number WRA 5917 which was parked on the side of the road. [8] Upon such sighting, PW5 instructed Ramzi to park their patrol car by the side of the road. Later on, PW5 along with Nazran came out and moved towards said Perodua Viva car. As he was approaching said car, PW5 saw that the car’s mirror on driver's side was half-down which in turn enabled him to spot a Malay Male individual (the Accused) sitting on the driver’s seat. [9] PW5 along with Nazran proceeded to move right behind said car and S/N yi9AtIex0EaacDFrLmaU4g **Note : Serial number will be used to verify the originality of this document via eFILING portal Magistrate Rais Imran bin Hamid Page 3 of 44 as PW5 moved nearer towards the Accused, in response to that the Accused opened the car door on the driver’s side and sprinted out from the car. However, this attempt to run was foiled as he was apprehended by PW5 and Nazran who chased after him. [10] Upon successfully apprehending the Accused, PW5 introduced himself as a police officer and conducted a body search, resulting with no illegal article found on said Malay Male person. The Accused was later brought to the green Perodua Viva whereby a second search was done. [11] This second search was successful in finding (1) small black bag which was found on the car’s front passenger seat, in plain sight from where said Malay Male individual was originally seated inside of the car before he sprinted away from PW5. [12] In the presence of said Malay Male individual, PW5 proceeded to conduct further inspection on the small black bag. Therein he found transparent plastic packets [“Exhibit P4”] containing crystal powder suspected to be Methamphetamine [“Exhibit P6”]. [13] PW5 confiscated those items and arrested said Malay Male individual. Further documentation processes were done at Meranti Polis Station. The confiscated items were then handed over to PW6 who was the investigating officer of this case. PW5 later delivered the same to the Malaysian Chemistry Department to be analyzed by PW1.

PW1’s analysis confirmed that said confiscated items contained 8.50- gram Methamphetamine. To record this finding, a chemist report was duly prepared by PW4 [“Exhibit P7”]. THE CHARGE [15] As indicated above herein, the Accused was charged for one count of S/N yi9AtIex0EaacDFrLmaU4g **Note : Serial number will be used to verify the originality of this document via eFILING portal Magistrate Rais Imran bin Hamid Page 4 of 44 unauthorized possession of dangerous drug, punishable under section 39A(1) of the Dangerous Drugs Act 1952 as the following: - Pertuduhan Pindaan Bahawa kamu pada 17.09.2020 jam lebih kurang 05.00 petang bertempat di dalam sebuah kenderaan no. pendaftaran WRA5917 warna hijau jenis Perodua Viva di tepi jalan Kg Gelang Mas di dalam jajahan Pasir Mas di dalam Negeri Kelantan telah ada dalam kawalan kamu Ketulan kristal berat bersih 8.50 gram yang mengandungi dadah berbahaya jenis methamphetamine dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39A(1) akta yang sama. Hukuman Jika didapati bersalah boleh dihukum dengan penjara untuk sualu tempoh tidak kurang, daripada dua tahun tetapi tidak lebih daripada lima tahun dan ia juga akan dikenakan hukuman sebat tidak kurang daripada tiga sebatan tetapi tidak lebih daripada sembilan sebatan. PRIMA FACIE CASE [16] Proving a prima facie case against an individual accused of a criminal wrongdoing is the cornerstone of any successful criminal proceeding. This is such as provided under section 173 (h) of the Criminal Procedure Code.

In relation to this, reference is also made to the case of PP v Mohd Radzi Abu Bakar [2006]1 CLJ 447 at pp 465 and 466 paragraph 12 as enunciated by the Federal Court as follows: - S/N yi9AtIex0EaacDFrLmaU4g **Note : Serial number will be used to verify the originality of this document via eFILING portal

After the amendments to ss. 173(f) and 180 of the CPC, the statutory test has been altered. What is required of a Subordinate Court and the High Court under the amended sections is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the accused's favour, then it is the duty of the court to draw the inference that is favourable to the accused. [Emphasis added] [See also Looi Kow Chai v PP [2003] 1 CLJ 734 and Balachandran v PP [2005] 1 CLJ 85].

Hence it is understood that to prove a prima facie case against the Accused, this Court has to undertake a maximum evaluation against the totality of evidence presented by the prosecution through their witnesses and in doing so assess these witness’s credibility and reliability, alongside examining whether elementary requirements as prescribed under section 39A

of the Dangerous Drugs Act 1952 are met by the prosecution. THE ANALYSIS [19] In relation to Section 39A(1) of the Dangerous Drugs Act 1952, the ingredients required to be proved relating to possession of psychotropic S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 6 of 44 substance are as the following - i. The Accused has possession of dangerous drugs (control or custody); ii. The Accused has knowledge of said dangerous drugs; iii. The drug is listed under the First Schedule of the Dangerous Drugs Act 1952; iv. The weight of the drug must be within the threshold specified under Section 39A(1) of the Dangerous Drugs Act 1952; v. The Accused is not a person authorized or deemed as such under the Dangerous Drugs Act 1952, or Regulations made under that Act. [20] Upon close scrutiny, this Court finds no reason to discredit the evidence given by PW1 regarding dangerous drugs analysis done as indicated in Exhibit P7. There is no defect in PW1’s analysis and no challenge was made on the identity of Exhibit P6. PW1 confirmed that Exhibit P6 are listed as dangerous drug in the First Schedule of the Dangerous Drugs Act 1952 and its weight is within the threshold specified under Section 39A(1) of the Dangerous Drugs Act 1952, to wit: Methamphetamine weighing 8.50 kilograms. [21] This Court refers to the case of Public Prosecutor v Chia Leong Foo [2004] 4 CLJ 649 where it was held that: “As the evidence of a chemist on the analysis of drugs by him is not evidence of opinion but evidence of fact, he need not gibe particulars of the tests carried out by him in his evidence. It follows that his report, tendered in evidence under s. 399(1), also need not contain such particulars. In any event it has been held by the trilogy S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 7 of 44 of the (then) Supreme Court cases of Munusamy v PP [1987] CLJ Rep 221; [1987] 1 CLJ 250; ; [1987] 1 MLJ 492, PP v Lam San [1991] 1 CLJ Rep 391; [1991] 3 CLJ 2410; [1991] 3 MLJ 426 and Khoo Hi Chiang’s case that the court is entitled to accept the evidence of the chemist on its face value without the necessity for him to go into details of what he did in the laboratory step by step unless it is inherently incredible or the defence calls evidence in rebuttal by another expert. Thus, if the accused is dissatisfied with the conclusion reached by the chemist it is for him to summon the chemist as a witness for that purpose or adduce evidence in rebuttal. This has not been done by the accused in this case. The chemist report tendered in evidence in this case is therefore not defective. [22] Thus, this Court finds that the nature and the weight of Exhibit P6 forming the subject matter in this case is successfully proved. [23] This Court also finds that the Accused did not have permission to have in his control and custody said dangerous drug as no evidence had been tendered to prove that the permission has been granted which in turn would enable the Accused to legally have in his control and custody said dangerous drug. [24] Meanwhile, the task of proving “possession” has to be seen in light of the particular facts of each case. Not only is it vital to show that the Accused had custody or control over the impugned drugs (actus reus), but it is also equally if not more important to show that he had the intention of dealing with it (mens rea). In Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237, it was decided: S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 8 of 44 “Possession” itself as regards the criminal law is described as follows in Stephen’s Digest (9th Edition, page 304);- “A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstance are such that he may be presumed to intend to do so in case of need.” To put it otherwise, there, is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as I it belonged to me. There must be some evidence that I am doing or S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 9 of 44 having done something with it that shews such an intention. Or it must be clear that the circumstances in which it is found shew such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so. [Emphasis added] [25] The case of Chan Pean Leon (supra) was cited favorably in Pendakwa Raya lawan Lim Chsung Meng Dan Seorang Lagi [2015] 1 LNS 1226. Along the same tangent, the Court of Appeal held: [1] It is perhaps convenient at the outset to briefly state the law on “possession” where the drugs were found in a place/area under the control of an accused. A determination of whether there is “possession” depends on the particular facts of each case. Factors that used to be considered in determining whether an accused is in possession of the drugs found in a place/area under his or her control include his or her knowledge that the drugs were in the place/area, his or her access to the place/area where the drugs were found and his or her physical proximity to the drugs. [2] The possession prohibited by law need not be actual physical custody and control of the drugs; it is sufficient if the prosecution proves that the accused had knowledge of its presence and the S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 10 of 44 power and intent to control its disposal. Further possession need not be exclusive; a person may be deemed to be in joint possession of a drug which is in the physical custody and control of another person, if he or she willfully shares with the other the right of control over the drug. [Emphasis added] [25] As alluded above, whether “possession” exist in a particular case could vary depending on factual peculiarity of that given case. Thus, in determining what amounts to “possession”, several questions will have to be answered namely; whether the impugned drugs found with the Accused are under his control, to what extent does the Accused have access to the place where the impugned drugs were found and how physically close was the Accused with the impugned drugs. Answering these questions in totality might shed light into the Accused’s ability as the alleged possessor capable of exercising the power to deal with said impugned drugs to the exclusion of others alongside his knowledge of the same. On this front, the law is trite that the onus is upon the prosecution to adduce cogent evidence capable to rule out access by others to the impugned drugs. See Abdullah Zawawi bin Yusoff v. PP [1993] 4 CLJ 1, Pang Chee Meng v. PP [1992] 1 CLJ (Rep) 265, Saludin bin Surif v. PP [1997] 3 CLJ 529 dan Gooi Loo Seng v. PP [1993] 3 CLJ. [26] Reverting to the case at hand, this Court finds that Exhibit P4 and Exhibit P6 were under the control and/or custody of the Accused. As evident from testimony of PW5 as the one who led the raid against the Accused’s, the latter was seen alone in the car seated at the driver’s seat where the dangerous drug was found. There was no one else in said car other than the Accused. In fact, the Accused was also seen bolting out from the said car as PW5 and his raiding team approaches the car, therefore it is quite improbable for the Accused to be there by accident or for any other S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 11 of 44 purpose other than to be near or in control of said dangerous drug. What's more, through PW5’s statement, it is understood that the dangerous drug was found as the result of PW5’s inspecting the front passenger’s seat, next to the driver’s seat where the Accused was spotted earlier. As witnessed by PW5, the dangerous drug was found somewhere in the Accused’s plain sight, quite near to where the Accused was seated prior to his arrest. [25] The fact that said dangerous drug was found in such close proximity to where the Accused was seated is clearly pointing towards the accused having ownership/control over such seized items. In the case of Tan Yew Choy v. PP [2009] 4 CLJ 245, the Federal Court enunciated as follows: “As for physical possession, the learned trial judge accepted the evidence of PW7 that the prescribed drug was only a foot away from the appellant. On this point, in the case of PP v. Foo Jua Eng [1966] 1 MLJ 197, where the accused was found by the police who raided the premises to be seated in close proximity to the offending exhibit, it was held that such close proximity was sufficient to find a case to answer. As for “mens rea” possession, the learned trial concluded that the appellant knew the nature of the drug. This is a finding of fact. This court will not differ from the view formed by the learned trial judge upon such an issue”. [Emphasis added] [26] Proof of ownership/control due to the fact that the seized items were found in such close proximity to an accused was again reaffirmed the case of Khairuddin Hassan v PP [2010] 7 CLJ 129 as follows: S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 12 of 44 “[12] As regards the proximity of the drugs to the appellant, this too is a relevant fact. This principle is derived from this passage in PP v. Foo Jua Eng [1965] 1 LNS 137, where HRH Raja Azlan Shah stated: With regard to the mental element, the learned magistrate rightly directed his mind that knowledge or consciousness would depend on the surrounding circumstances. However, he failed to direct his mind adequately on the facts. He directed his mind to the circumstances when the respondent tried to close the door on PW1. But he failed to consider the other circumstance which, taken together, may well be that the element of possession was proved. That circumstance is the physical proximity of the respondent to the exhibit in question. [13] As such we cannot find fault with the finding of the learned trial judge that, based on both the elements of the conduct of the appellant and his proximity to the recovered drugs, coupled with his failure to give any satisfactory explanation, he was in mens rea possession of the drugs. This was an inference made by the learned trial judge based on sound factual findings which is now confirmed by the Court of Appeal. We find no justification in disturbing those findings.” [Emphasis added] [27] In addition, the link between the Accused and the crime scene has been well established through PW2's testimony and PW6's investigation which named the Accused as the effective driver and user of said car in exclusion of others. This is further solidified by PW2 confirmation that she had left the control and custody of said car to the care of the Accused at Pasir Mas Kelantan as PW2 at the material time was based at Putrajaya and to the best of no one else at her family’s residence in Pasir Mas used the car at the material time except for the Accused. This fact serves as an S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 13 of 44 incontrovertible proof of the Accused’s control over the house and drug found within it. [28] The veracity of Prosecution’s account of the raid, discovery and seizure has been verified by PW6 who confirmed how the arrest was made by the police against the Accused [29] Therefore, it is safe for this Court to conclude that the Accused was the sole individual who could be said to have effective possession, control and custody of said dangerous drug at the material time by being the owner and occupant of the house who was found in close proximity from the seized items without any lawful excuse or plausible explanation. [30] The circumstances of this case as revealed through the testimony of PW2 and later corroborated by PW6, stating that from the Accused had tried to escape the car as the raid happened. [31] His conduct during the raid as explained above justified this Court in drawing an inference against the Accused in accordance to Section 8(2) of the Evidence Act 1952 which states as follows: “The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” [32] Further reliance to this principle is further illustrated in the case of S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 14 of 44 Parlan Bin Dadeh v PP [2009] 1 CLJ 717 whereby the Federal Court states: The reaction of the appellant in looking stunned or shocked upon being approached by the police was clearly admissible under section 8 of the Evidence Act 1950 (“the Act”) since it has a direct bearing on the fact in issue as the drugs found were tucked away in the front of the jeans worn by him. The explanation for his reaction must therefore be offered by the appellant himself as required by section 9 of the Act. However, as the appellant did not offer any explanation for his reaction upon being approached by the police, it could be validly used as evidence against him. In the circumstances, the inference to be drawn from the evidence was that he knew what he was carrying. [Emphasis added] [33] Coming back to the present case, it is vital to note that no explanation was given in order to justify the Accused’s anxiety upon him being raided in a car with dangerous drug in his plain sight. Circumstances of this raid made it imperative for the Accused to offer some sort of explanation regarding his conduct in order to successfully deny the inference of knowledge of the existence of the dangerous drug in a car occupied by him. This failure in turn gives rise to an inference that the Accused did have knowledge of the possession and existence of the dangerous drug at the material time. [34] With regard to this, this Court finds it suitable to adopt the position taken by Tun Ariffin Zakaria CJ (Malaya) in the case of Amathevelli a/p Ramasamy v Public Prosecutor [2009] 2 MLJ 367 whereby it is stated: “The inferences drawn from the evidence of conduct of the appellant will remain as she has not explained them pursuant to s.9 of the Evidence Act 1950. As Augustine Paul FCJ said in the judgment S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 15 of 44 of this court in Parlan bin Dadeh v Public Prosecutor [2008] 6 MLJ 19 at p. 44: If the explanation is accepted by the court, then the inference arising from the conduct is rebutted. If it is not accepted or if the accused does not explain his conduct the inference remains unrebutted.” [Emphasis added] [35] Upon closely scrutinizing the Notes of Proceedings, this Court finds that inference arising from the Accused’s conduct has yet to be rebutted. As noted earlier, said dangerous drug was found in such close proximity and in plain sight from the Accused. This fact gives rise to the inference that unless successfully rebutted, the Accused has to have some sort of knowledge of said dangerous drug found. Again, reference can be made to the case of Khairuddin Hassan v PP [2010] 7 CLJ 129 which states: [13] As such we cannot find fault with the finding of the learned trial judge that, based on both the elements of the conduct of the appellant and his proximity to the recovered drugs, coupled with his failure to give any satisfactory explanation, he was in mens rea possession of the drugs. This was an inference made by the learned trial judge based on sound factual findings which is now confirmed by the Court of Appeal. We find no justification in disturbing those findings.” [Emphasis added] [36] As noted earlier, said dangerous drug was found in such close proximity and in plain sight from the Accused. The Accused has failed to show any shred of evidence to show that this did not in fact happened. Due to this circumstance, it is justifiable for this Court to draw an adverse inference against the Accused to the effect that the Accused did have knowledge of the possession and existence of the psychotropic substances at the material time. S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 16 of 44 [37] This is based on the case of Chong Joon Hong v PP [2018] 1 LNS 144 where the Court ruled that: - “[35] In our view, based on the above evidence, it was clear that there was “affirmative link” between both appellants and the impugned drugs. The simple most important link or connection between both appellants and the impugned drugs was the simple fact that the packages and boxes that contained the impugned drugs were in their plain view. This evidence constituted strong “presence” and “proximity”. They were not merely present inside the bedroom with the impugned drugs cached away somewhere but the impugned drugs were right under their noses.…. [Emphasis added] [38] Under such condition of plain sightedness, the Accused who had access to and control over said car where the dangerous drug was found, he could clearly and surely see thus consequently know the existence of the such dangerous drug. It would be abject illogical to say otherwise. SECTION 114 (g) OF THE EVIDENCE ACT 1950 [39] Furthermore, the defence counsel urged this Court to invoke “adverse inference” under section 114 (g) of the Evidence Act 1950 due to alleged failure to properly investigate the veracity of the purported raid against the Accused which was argued, resulting with serious gap in prosecution’s case against her client. [40] Among all it was argued by the defence counsel, given that the Accused had challenged the veracity of PW2’s account of the incident, the S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 17 of 44 prosecution should have brought forward other witnesses who might be present together with PW2 during the raid to corroborate PW2’s testimony. As such, the prosecution's failure to summon Nazran and Ramzi, being purportedly present during the raid, gave rise to adverse inference under Section 114 (g) of the Evidence Act 1950, against the prosecution [41] Section 114 (g) of the Evidence Act 1950 states:

Court may presume existence of certain fact. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The Court may presume –

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that evidence which could be and is not produced would if produced be favourable to the person who withholds it;

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… S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 18 of 44 [Emphasis added] [42] In Munusamy v Public Prosecutor [1987] 1 MLJ 492, Mohamed Azmi SCJ (as he then was) observed at page 494: It is essential to appreciate the scope of s 114(g) of the Evidence Act 1950 lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but a material document by a party in his possession nor for non-production of just any witness but only an important and material witness to the case. [Emphasis added] [43] In this regard, it is beneficial for this Court to reiterate the trite law that it is the discretionary right of the prosecutor to call any witnesses he or she deems fit to call as signified in Public Prosecutor v Norashikin Bt Yusof & Anor [2019] 7 MLJ 277 (cited approvingly the case of Munusamy (supra). Collin Sequerah J at High Court Johor Bahru states at paragraph 111: [111] No doubt, it is the prerogative of the prosecution to call witnesses they deem fit. However, where the said witnesses are essential to the unfolding of the narrative upon which the prosecution case is based, failure to call these witnesses will result in a gap in the prosecution case and result in them failing to prove a prima facie case (see Abdullah Zawawi v Public Prosecutor [1985] S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 19 of 44 2 MLJ 16). [Emphasis added] [44] Therefore, it is understood that operation of adverse inference under Section 114 (g) of the Evidence Act 1952 is only activated when the prosecution failed to ensure attendance of essential witness who could be helpful in unfolding the prosecution’s narrative. The law does not intend for adverse inference under Section 114 (g) of the Evidence Act 1950 to operate merely because the prosecution declines to call any Tom, Dick and Harry to testify when the prosecution is of the view that their present set of witnesses as presented in court is sufficient to prove their case. [45] In relation to the present case, upon perusing through Notes of Proceeding, this Court is of the view that the mere failure to bring forward 2 other officers who were present at the material time when the raid happened is not a sufficient ground for this Court to invoke the operation of adverse inference under Section 114(g) of the Evidence Act 1950 against the prosecution. [46] As patently clear throughout this proceeding, the chain of evidence presented by the prosecution through its existing witnesses is intact without the need to produce additional witnesses to prove the case against the Accused. [47] This is such so as the law places importance not in the quantity of witnesses but the quality of the evidence presented in justifying any verdict to be meted out in a given proceeding. Reference can be made to Section 134 of the Evidence Act 1950 which states: Number of witnesses S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid

No particular number of witnesses shall in any case be required for the proof of any fact. [Emphasis added] [48] This principle is reiterated in the case of Public Prosecutor V. Dato’ Seri Anwar bin Ibrahim (N0.3) [1999] 2 MLJ 1 which states: “There is no obligation compelling the prosecution to call all witnesses who speak to facts which it desires to prove (see Malak Khan v Emperor 72 IA 305; AIR 1946 PC 16). Thus, the prosecution is not duty bound to call all the witnesses from whom statements may have been taken (see PP v Teh Cheng Poh [1980] 1 MLJ 251).This accords with s 134 of the Evidence Act1950 which provides that no particular number of witnesses shall in any case be required for the proof of any fact. This section enshrines the well recognized maxim that 'evidence has to be weighed and not counted.' As a general rule, a court can and may act on the testimony of a single witness though uncorroborated and one credible witness outweighs the testimony of a number of other witnesses of indifferent character (see Vadivelu Thevar v State of Madras 1957 AIR SC 614)… What is significant is that the prosecution must call the necessary witnesses to unfold the narrative upon which its case is based… Thus, an adverse inference for not calling a witness cannot be drawn if there is sufficient other evidence to support the prosecution case (see Namasiyiam & Ors v PP [1987] 2 MLJ 336)… [Emphasis added] S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 21 of 44 [49] This Court notes that the prosecution has succeeded in proving the case against the Accused on prima facie basis based on the testimony of prosecution witnesses either in oral or documentary form, that the accusation levelled against the accused is not baseless but is supported by credible evidence. [50] Upon assessing the evidence presented at the end of prosecution's case, this Court finds that SP1 to SP6 are credible witnesses and their testimonies formed a coherent evidentiary narrative without posing any material contradiction to each other’s’ testimonies. [51] This Court also finds no reason to disbelieve PW2 and PW6’s account of the incident given that no credible allegation has been presented to discredit both police officers credibility in testifying against the Accused. No malice or ulterior motive tainted these witnesses’ credibility and to the best of this Court’s recollection of the proceeding, nothing that of credible worthiness was presented by the defence to convince this Court that the raid conducted at the material time was nothing more but a ploy to frame the Accused for a crime which he had relation with. [52] In this regard, it is beneficial for this Court to reiterate the trite law as enunciated in PP v. Shaaban bin Abdul Rahman [1989] 2 MLJ 313 whereby it states; “Although the evidence given by PW3, PW4 and PW5 had some discrepancies, they had no reason to lie and these discrepancies were minor and did not detract from the clear evidence…” [53] Besides, the principle as enunciated in the case of Public S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 22 of 44 Prosecutor v. Basar [1965] MLJ 75 should be equally applicable in the present case whereby it is affirmed: "There was nothing inherently improbable about the complainant's story and, as I have stated above, her evidence was neither contradicted by other evidence nor shaken by cross-examination. In the circumstances it was the duty of the learned magistrate to have called on the defence.” [Emphasis added] [54] Despite rigorous cross-examination by the defence counsel, all prosecution witnesses maintained their testimony which accurately showed that the Accused was indeed having full knowledge and in control and custody of dangerous drug as charged against him. [55] In fact, the absence of both two other police officers other that PW2 who were at the crime scene when the raid took place from being called as witnesses at the prosecution stage does not give rise to adverse inference under Section 114(g) of the Evidence Act 1950, as the Accused's right to being fairly heard in a criminal proceeding was not prejudiced as both witnesses were offered to the defence and the defence had called both witnesses to testify. Further refence to this principle can be traced back to principle as laid out in Public Prosecutor V. Dato’ Seri Anwar bin Ibrahim (N0.3) (supra). [56] On top of that, this Court is of the view that the Accused’s attempt to invoke the application of adverse inference against the prosecution under Section 114(g) of the Evidence Act 1952 in the form of Alcontara Notice must fail as no indication was put in record and in evidence to convince this Court that the Accused had taken necessary steps in order to help the S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 23 of 44 police to locate other witnesses who might be of help to the Accused’s defence by giving sufficiently detailed information that could lead up to successfully locating these witnesses’ whereabout. This failure only gives rise to inference any new witnesses who might be brought to help the accused’s defence is a mere recent invention by the Accused in the later part of this proceeding in order to save himself. [57] This Court refers to the judgment of Lim Beng Choon J in Public Prosecutor v Badrulsham Baharom [1988] 2 MLJ 585 at page 590 where it was decided: ... it is legitimate for the court to scrutinize the evidence as to what the accused said contemporaneously with the act or omission and also the surrounding circumstances under which the accused acted or failed to act. Such evidence is of course not conclusive by itself; it may be overborne by stronger evidence the other way. Nevertheless, it is not wrong to say the accused’s state of mind may be gathered from the evidence of what he did or failed to do or what he said on the occasion in question. Putting it shortly, one may say that in order to arrive at a finding of knowledge the court will have to consider the totality of the evidence including any explanations and denials made by the accused and his conduct on the occasion in question. [Emphasis added] [58] In this regard, further reference can be made to the Federal Court’s decidion in the case of Alcontara Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705 where it was decided as follows: “Speaking generally, in a criminal trial, the whole point and purpose of the defence having to put its case to such of the S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 24 of 44 prosecution witnesses as might be in a position to admit or deny it, is to enable the prosecution to check on whether an accused's version of the facts is true or false, and thus avoid the adverse comment, that the defence is a recent invention in other words, "kept up its sleeve", as it were - and revealed for the first time when the accused makes his defence from the witness box or the dock, thus detracting from the weight to be accorded to the defence. [Emphasis added] [59] In the case of Alcontara Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705 above, the Federal Court in that case elaborated that the most reasonable opportunity for the Accused to clear his name from the beginning by revealing if there are witnesses that could help in investigation is by divulging the same in detailed while the Accused’s cautioned statement is being recorded by the investigating officer. [60] The Federal Court further concluded that if the Accused remained silent by not challenging the evidentiary narrative put forward by the investigating officer by way of tendering the Accused’s cautioned statement as proof that the Accused had informed the investigating officer that there were witnesses who could be investigated by the investigating officer to prove that the incident did not happen as alleged by the raiding officer, then this will give the right to trial judge to reduce the value of the testimony of the defense witness that was newly raised during the trial by employing adverse inference against the defense that to the effect of perceiving defense witness as a new fabrication during the trial and did not exist during the incident or the investigation. [61] The same principle of law was reiterated by Zulkefli Makinudin FCJ pada at page 63 in the case of Teng Howe Sing v Public Prosecutor S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 25 of 44 [2009] 3 MLJ 46 whereby it was decided that: Applying the principle in Badrulsham’s case to the facts of the instant case, the learned trial judge was correct to conclude that the appellant had two opportunities to provide information about ‘Ho Seng’, ie, at the time of his arrest and five days later during recording of his cautioned statement but he failed to do so. We are therefore of the view that in the circumstances, the appellant’s failure to provide relevant information about ‘Ho Seng’ for the police to carry out a thorough investigation into the probability of his defence, entitled the learned trial judge to disbelieve him. [Emphasis added] [62] Again, the Federal Court in the case of Raman a/l Kunjiraman v Public Prosecutor [2018] Supp MLJ 86 decided: [56] Similarly in the instant case, the failure of the appellant to inform the police through his cautioned statement could be taken into account by the learned trial judge in attaching weight to his defence. Obviously ‘Noi’ is a nickname and without giving any particulars of ‘Noi’, it would be impossible for the police to conduct any investigation on her whereabout and indeed her very existence and to her role, if any, in relation to the drugs found on the lap of the appellant. Hence, the learned trial judge was entitled to disbelieve the defence story. [Emphasis added] [63] Along the same juncture, this Court could not bring itself to agree with the defence’s assertion that a favorable inference should be drawn against S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 26 of 44 the Accused just because the Accused alleged that the true fact surrounding his arrest differed from PW2’s account of the incident. [64] This is due to the fact that double presumption could only arise in instances whereby contradictory testimonies were presented prosecution witnesses (which did not occur in this case) whereas in the present case, throughout proceeding, the prosecution had succeeded in presenting an unbroken and credible a narrative of how the incident took place. ON FINGERPRINT TEST [65] It was also argued by the defence that a favourable inference should be drawn against the accused due to the fact that no fingerprint test was conducted to prove the Accused’s connection to the dangerous drug found in said raid. [66] In relation to this, this Court opines that the law merely regards fingerprint evidence as supporting evidence for the prosecution's case and that the absence of fingerprint collection for the purpose of DNA testing should not raise any doubt to the evidentiary narrative as presented by the prosecution given that beside the want for fingerprint testing, other evidence in support of prosecution’s case were presented in the course of trial and this strand of evidence has sufficiently proved the elementary requirements needed to prove a case against the Accused. [67] Furthermore, no dispute arose as to the identity of the Accused as the individual so arrested during the raid and PW2 and PW6 had successfully identified Exhibits P4 and P6 as the dangerous drug seized during the raid. S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 27 of 44 [68] In relation to this issue, reference can be made to the case of Public Prosecutor v. Mansor bin Mohd. Rashid & Anor [1997] 1 CLJ 233; "We also find ourselves in agreement with the learned deputy public prosecutor that the learned trial judge had erred in law when he faulted PW13, the investigating officer, for not lifting the fingerprints off the wrappings of the cannabis and for not taking photographs of the streetlight in front of the house No 129. Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there was evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumed little value or significance.” [Emphasis added] [69] Therefore, the absence of a fingering print test in this case does not dent the integrity of the case built by the prosecution against the Accused. CHAIN OF EVIDENCE [70] Pertaining to the movement of the exhibits from the time it was discovered by PW2 until the time it was produced to PW1 by PW6, this Court finds that there was no break in the chain of evidence. This Court is satisfied that exhibit P4 and exhibit P6 were the same seized by PW2. [71] At the end of the prosecution’s case, after analysing the evidence given by 6 prosecution’s witnesses and the documents tendered into this Court S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 28 of 44 together with the submissions submitted by both counsels, on a maximum evaluation as guided in Mohd Radzi Abu Bakar (supra), the prosecution has succeeded to prove a prima facie case against the accused on both charges. Thus, the Accused is called to enter his defence. [72] The options required under section 173(ha) of the Criminal Procedure Code have been explained in a language conversant to the Accused. THE DEFENCE CASE [73] The defence decided to call upon the Accused to give his sworn testimony from the witness box. [74] The Accused claimed that contrary to testimonies by PW2 and PW6, he was never arrested per First Instance Report. [75] The Accused further claimed that no drug was found on his person or anywhere near to him, as such it would be impossible to have anything illegal confiscated from him. [76] The Accused testified that the arrest was not made by PW2, instead the arrest was made by a policeman named Midi. [77] The Accused alleged that the true account of his arrest by the purported policeman named Midi were also witnessed by DW3 and DW5. [78] It was further alleged that the arrest made against the Accused was nothing more but a plot to frame him for possession of illegal drug of which the Accused claimed that he had no knowledge of. S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 29 of 44 [79] The Accused claimed that the arrest was in truth made somewhere different from the place named by PW2 in his First Instance Report. [80] In specific it was alleged that contrary to the prosecution’s assertion per the First Information Report, the Accused was initially somewhere near the watering channel at Kampung Kolam when he was caught surprised by a shouting voice warning to apprehend him. Frightened by this rallying cry, the Accused jumped into the watering channel and swam across the channel to Kampung Kaloi, leaving behind a Perodua Viva which was used as the Accused’s mode of transportation to Kampung Kolam. [81] The Accused remained thereafter in hiding at a paddy filed plot for about 2 hours. All this while, the Accused claimed that his car which was left at Kampung Kolam was taken over and driven by DW2 to and fro Gelang Mas. [82] Later on, he was approached by a policeman named Midi who demanded the Accused to settle the score with him regarding the Perodua Viva which was left behind by the Accused during the ambush. [83] Several minutes later, Midi was joined by two other policemen namely DW2 and DW4. It was further alleged that DW2 had handcuffed the Accused and that the Accused was purportedly driven around by these policemen to Gelang Mas Police Bit Point where the Accused sighted his Perodua Viva. The Accused was put inside of said car and later driven around by these policemen to Meranti Police Station. [84] At Meranti Police Station the party of these 3 policemen and the Accused was later joined by another policeman who the Accused identified by name as Bro (Roystoon – PW2). It was here, in side of the car and in S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 30 of 44 sight of 3 other policemen, DW2 showed to the Accused the illegal drug that was allegedly found inside of the said car. [85] Only thereafter was the Accused handed over to PW6 at Pasir Mas Police District Headquarters for further investigation. BURDEN OF PROOF AT THE END OF THE DEFENCE CASE [86] This Court must consider all the evidence adduced in court and to decide whether the prosecution has proven his case beyond reasonable doubt as enshrined under section 173 (m) (i) of the Criminal Procedure Code. [87] If the prosecution has successfully proven his case beyond reasonable doubt, this Court has to find the accused guilty and consequentially be convicted for the offences charged under section 173 (m) (ii) of the Criminal Procedure Code. [88] This Court refers to the case of Balachandran v PP [2005] 1 CLJ 85. It states that: … Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s. 182A(1) of the Criminal Procedure Code. That would normally be the position S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 31 of 44 where the accused has given evidence. However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt. [Emphasis added] [89] Reference is also made to the case of Romi Amora Amir v PP [2011] 1 CLJ 870, the Court of Appeal enunciated as the following: [9] … To exacerbate matters, again in the grounds of judgment when discussing the evidence at the defence stage, the learned judge made no attempts to discuss the facts that led to the invocation of s. 37(da) of the Act or make a maximum evaluation of the evidence in relation to it. This failure went against the enunciation of the Federal Court in Balachandran v. PP [2005] 1 CLJ 85 in that a presiding judge must undertake a maximum evaluation exercise at the end of the prosecution and again at the defence stage. … [Emphasis added] [90] “Reasonable doubt” has been explained in the case of PP v Saimin & Ors [1971] 2 MLJ 16 as follows: It has again been said that ‘reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 32 of 44 a doubt which settles in your judgment and finds a resting place there." Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence. [Emphasis added] [91] From the plethora of legal authorities as stated above, it is understood that the defence has the burden to show reasonable doubts based on the maximum evaluation to procure an order of discharge and acquittal. THE ACCUSED’S DEFENCE IS MERELY THAT OF A BARE DENIAL [92] The law is trite that when the Accused's defence is merely that of a bare denial, it does not amount to a defence hence fails to raise any reasonable doubt against a prima facie case that has been successfully proved against him. This is as elucidated in the case of Muhamad Radhi Bin Yaakob v Public Prosecutor [1991] 3 MLJ 169 at page 171, it states: It is a well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case. In the course of the prosecution case, the prosecution may of course rely on available statutory presumptions to prove one or more of the essential ingredients of the charge. When that occurs, the particular burden of proof as S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 33 of 44 opposed to the general burden, shifts to the defence to rebut such presumptions on the balance of probabilities which from the defence point of view is heavier than the burden of casting a reasonable doubt, but it is certainly lighter that the burden of the prosecution to prove beyond reasonable doubt. [Emphasis added] [93] After a rigorous perusal of evidence presented in this proceeding, this Court finds that the narrative presented by the Accused concerning events leading up to his arrest by PW5 is nothing but a bare denial, designed specifically for the sole reason of finding ways to exculpate the Accused from charges laid against him. [94] Thus, when the Accused's defence is merely that of a bare denial, it does not amount to a defence hence fails to raise any reasonable doubt against a prima facie case that has been successfully proved by the Prosecution against him. [95] The Accused stated during the defence stage that said dangerous drug did not belong to him the arrest made against the Accused was nothing more but a plot to frame him for possession of dangerous drug of which the accused claimed that he had no knowledge of. [96] This does not explain anything, most particularly why was the Accused found in such close proximity to dangerous drug which was situated in his plain sight right before fleeing the scene after spotting a party of policemen coming his way as earlier established through the testimony of PW2 during prosecution’s case. The failure to adduce any evidence to explain this predicament surely means that the Accused has failed to cast doubt over S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 34 of 44 Prosecution’s narrative of how the case unfolded against the Accused. [97] In relation to this, this Court refers to a principle as laid down in the case of D.A. Duncan v. PP [1980] 2 MLJ 195, which states: “The defence was, in effect, a simple denial of the evidence connecting the appellant with the four boxes. We cannot see any plausible ground for saying that four boxes were not his. In the circumstances of the prosecution evidence, the High Court came, in our view, to the correct conclusion that this denial did not cast a reasonable doubt on the prosecution case against the appellant.” [Emphasis added] [98] This Court also finds no reason to disbelieve PW2, PW6, DW2 and DW4’s account of the incident given that no credible allegation has been presented to discredit both police officers credibility in testifying against the Accused. No malice or ulterior motive has been successfully proven against both witnesses and to the best of this Court’s recollection of the proceeding, nothing that of credible worthiness was presented by the defence to convince this Court that the raid conducted at the material time was nothing more but a ploy to frame the Accused for a crime which he had relation with. [99] In this regard, it is beneficial for this Court to reiterate the trite law as enunciated in PP v David Ackowuah Bonsu [1999] 2 CLJ 677 whereby it states; “Further, I fail to see any reason as to why the prosecution witnesses should go all out conspire to commit perjury merely to get the accused convicted. What would they gain by getting an S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 35 of 44 innocent visitor to the country (assuming the accused story were to be believed) hung for drug trafficking? What could be the motive? They had no axe to grind against him. Indeed, none of the I found the accused guilty of the charge. He was convicted and sentenced according to the law.” [Emphasis added] [100] This Court also notes that even at this stage, the Accused merely reiterated and regurgitated that same, debunked afterthought narrative of this incident as his defence. [101] The Accused also tried, despite in vain, by trying to craft a new narrative contrary to the one already established by the prosecution, of how the incident unfolded, by stressing that the Accused was initially somewhere near the watering channel at Kampung Kolam when he was caught surprised by a shouting voice warning to apprehend him. Frightened by this rallying cry, the Accused jumped into the watering channel and swam across the channel to Kampung Kaloi, leaving behind a Perodua Viva and he remained thereafter in hiding at a paddy filed plot for about 2 hours before he was approached by a policeman named Midi who demanded the Accused to settle the score with him regarding the Perodua Viva which was left behind by the Accused during the ambush. This continued with they were joined by two other policemen namely DW2 and DW4, who then drove the Accused to Gelang Mas Police Bit Point and later on to Meranti Police Station where the Accused met Bro (Roystoon – PW2). It was here, in side of the car and in sight of 3 other policemen, DW2 showed to the Accused the illegal drug that was allegedly found inside of the said car. S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 36 of 44 [102] Nonetheless, throughout the investigation by PW6 as well as throughout the prosecution case, this narrative was never mentioned directly by any party, let alone by the Accused himself when his testimony was taken by the investigating officer. In fact, there was no police report lodged by the Accused to set the record straight nor was the Accused forthcoming in divulging the exact circumstances of how his arrest unfolded despite the defence having had more than sufficient time to help the police in uncovering this alleged truth. [103] Thus, this court finds that the allegation made by the Accused is in fact a recent invention or in other words fabricated evidence that falls squarely as an afterthought as said allegation was never brought up during the investigation by PW6. [104] It is a trite law that an afterthought defence cannot give rise to reasonable doubt to rebut the prima facie case that has been successfully proved by the prosecution. [105] Reference to this principle can be found in the case of Megat Halim Megat Omar v PP [2009] 1 CLJ 154, which states: [63] Although in our criminal jurisprudence, there is no burden on an accused person to prove his innocence but merely for him to raise a reasonable doubt as to his guilt, it is trite that his defence should be put to the prosecution at an early stage during the prosecution case. Failure to do so may move the trial court to dismiss a particular line of defence as an afterthought, or a recent invention as happened in this case. S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 37 of 44 [106] This Court also finds that defence witnesses DW3 and DW5 are interested witnesses and their testimony in court should be taken with caution. [107] This Court finds that both of their testimony could not in any way help the Acussed’s case against the Prosecutor given that their testimonies were riddled with contradictions and were clearly designed to exculpate the Accused from being held liable for possession of said illegal drug, despite overwhelming evidence to the contrary. [108] It is noted that DW3 and DW5 had only come forward to testify as witness as the trial proceeded in 2024 despite knowing all well that the incident involving the Accused had taken placed sometime in 2020. [109] If there is any shred of truth in the accusation that the Accused was framed for a crime he had no knowledge of, the Accused surely had more than sufficient time time to ask DW3 and DW 5 who was supposedly a witness to the incident to help the investigation since the get go instead of waiting until after the Accused was called to defend himself as both of them testified that the had come to know the news about arrest made against the Accused soon after the incident allegedly took place. [110] This Court also finds that testimonies by DW3 and DW 5 did nothing to cast doubt over the narrative set forth by the prosecution. [111] First and foremost, DW3 had testified could not identify who were those three policemen nor did he could verify the identity of motorcycles they were riding in. On top of that, by his admission as he was cross-examined by prosecution, DW3 was unable to state with certainty the identity of car belonging to the Accused and where was the Accused's car S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 38 of 44 situated at the material time when the arrest purportedly took place. [112] In fact, during cross examination, DW3 also confirmed that he did not know how the arrest was carried out by the police against the Accused. [113] DW3 was also unable to explain the presence of Midi and what role did Midi play in this incident. [114] This Court also notes that there was an irreconcilable contradiction in testimony given by DW3 in comparison with the narrative broached by the Accused concerning the true account of arrest affected against the Accused in terms of the length of time the police were said to have had conversation with the Accused as said arrest took place whereby the Accused stated that this conversation took place for about 2 hours whereby DW3 testified that the same incident took place for a mere 4 to 5 minutes. [115] As with DW3, DW5 also could not confirm the identity of said policemen who were alleged to head in the Accused’s direction. This witness was also unable to provide any lead to identify the identity of said motorcycles used by those three policemen. [116] This Court also notes that there was an irreconcilable contradiction in testimony given by DW5 in comparison with the narrative broached by the Accused concerning the true account of arrest affected against the Accused in terms of the length of time the police were said to have had conversation with the Accused as said arrest took place whereby the Accused stated that this conversation took place for about 2 hours whereby DW3 testified that the same incident took place for a mere several S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 39 of 44 minutes. [117] DW5 also could not recall how the arrest was made against the Accused as he was far away from where the arrest took place and merely got news of the arrest only after the Accused was held for further investigation. [118] This shows that testimonies by DW3 and DW 5 could not be given any proper merit to justify the Accused’s acquittal from charges laid against him. [119] It is patently clear that in the face of the contradictions, up until now, no independent evidence was brought in to support testimonies ventured by both witnesses. In that circumstances and in the face of abject inconsistencies in testimonies given by DW3 and DW5, their testimonies must be rejected. [120] This approach has been continuously affirmed by various decisions of apex courts, one of which is the decision in the case of Pendakwa Raya v. Ong Eng Koe [2018] 1 LNS 1484 whereby it was stated: “Berdasarkan sebab sebab yang dinyatakan itu Mahkamah ini membuat dapatan bahawa SP6 keterangan SP6 perlu dilihat dengan kecurigaan. Keterangan SP6 sebagai saksi berkepentingan bertujuan membantu OKT bebas daripada pertuduhan. Oleh itu, keterangan sokongan diperlukan. Setakat kes pendakwaan keterangan yang boleh menyokong dakwaan SP6 masih tiada. S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 40 of 44 [59] Tanpa keterangan sokongan bebas, Mahkamah ini menolak keterangan SP6.” [Emphasis added] [121] This Court also finds that that there is no evidence adduced before this Court to show that prosecution witnesses knew the Accused and that there was an evil motive on the part of their part to persecute the Accused. The testimony of prosecution witnesses is also not something strange and unusual but normal practice in any given raid. Therefore, testimonies of prosecution witnesses are seen as more credible than the defence adduced the Accused as stated above. Thus, this Court has to give more credit to testimonies of prosecution witnesses as decided in the case of Public Prosecutor v. Ahmad Kamil Anuar [2020] MLJU 2236; [2020] 1 LNS 2109 where the Court ruled that: - “[41] Saya dapati SP3 adalah bukan saksi berkepentingan, malahan SP3 tidak mengenali OKT dan tidak pernah berjumpa OKT sebelum ini. Saya tidak berpendapat keterangan ini sengaja diada-adakan oleh SP3 bertujuan untuk “fabrication” atau “frame-up” OKT agar beliau disabitkan. SP3 adalah seorang penjawat awam yang menjalankan tugasnya. Diperhatikan saksi-saksi anggota polis di sini bukanlah saksi berkepentingan tetapi hanya menjalankan kewajipannya secara berkredibel, dengan ini tidak ada sebab untuk saya tidak mempercayai keterangan mereka (Yusri Pialmi v. PP [2010] 6 CLJ 878); [42] Saya merujuk kepada kes PP v. Abd. Latif bin Sakimin [2005] 1 LNS 265 yang menyebutkan berikut: “...To my mind these public officers merely testified based on what they actually saw on the particular day. They could S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 41 of 44 certainly have improved on the evidence if they wanted to frame-up the accused. It is my finding that they are credible witnesses and are telling the truth after also watching their demeanor in the witness box, the manner in which they had testified and after anxiously scrutinizing their answers in examination-in-chief, cross-examination as well in re-examination...” [Emphasis added] THE MERIT OF DW2 AND DW4’S TESTIMONIES [122] In addition to laypersons, the defence also subpoenaed DW2 and DW4 who were present during the raid and arrest against the Accused was done, to testify on their behalf. Broadly, testimonies by these two individuals were consistent with the general narrative of the incident as laid out by PW 2 and PW6. [123] DW2 and DW4 bolstered prosecution’s case as both of them reiterated prosecution’s stand that there was no such person named Midi present during said raid and the Accused was arrested per description in First Instance report made by PW5. [124] While both of their testimonies were similar and complemented each other, both of them differed in terms of where and when did the search list was filled out by PW5 but a plausible explanation was given as to why this difference exist. [125] This is such so as when both witnesses testified about a fact, each witness testified according to their personal perspective and recollection of how the incident unfolded. Due to this differing perspectives and roles played in such raid, it goes without saying that differences were S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 42 of 44 bound to happen and these differences did not create any plausible doubt to the case as had been built and presented by the prosecution as every difference had been accounted to and explained by both witnesses. [126] In particular, DW4 had explained during re-examination by the Deputy Public Prosecutor that due to the fact that this incident had happened some 4 years before they were called as a witness to testify, this seems to explain why DW2 was unsure about where and when did the search list was filled out by PW5 and his answer in this regard was merely an attempt to respond the question according to standard operating procedures that were applicable during the material time. DW2 further stated that despite his recollection might be hazy on this point, he was definitely sure about other instances in said incident whereby his testimony was broadly consistent with the general narrative of the incident as laid out by PW5. [127] Besides, this Court is also of the view that DW2’s answer on this point has been succinctly supplemented by the answer given by DW4 which in essence reiterated prosecution’s narrative that the search list was in fact filled out at the police station as stated by PW5. [128] As such this Court opines that these discrepancies are immaterial and could not be said as material contradictions that may lead to destroy prosecution’s narrative and render these witnesses unreliable. Such discrepancies on minor matters are common in the testimony of witnesses due to lapse in memory owing to passage of time. Sometimes a witness is unable to pay attention, focus and fully remember a thing, but it does not necessarily mean the same witness is not a witness of truth who could confidently provide recollection about other instances in the said incident. Some discrepancies do not necessarily entail overall discrediting S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 43 of 44 of evidence from being considered by this Court. [129] Reliance to this approach can be seen in the case of Lim Guan Eng v PP (1998) 3 MLJ 14 whereby it was stated: “However, the law, recognizing that much depends upon the human factor and vagaries of life, refuse to lay down any absolute rule in the matter of evidence evaluation. Witnesses are but human. Testimony may often be colored by emotion, benign or malice. Not all witnesses speak the whole truth, despite the oath or affirmation administered to him. Not all witnesses are devoid are bias of one sort or another. Recollection of evidences is seldom, if ever, perfect. Two or more persons witnessing the same incident may give varying, yet truthful accounts of it according to their perception. There are so many other imponderables. The law would fail to meet the needs of society whose affairs it regulates if it does not take into account the in calculable that enter upon the scene when questions of appreciation of evidence arise.”. [Emphasis added] [130] In the case of Mohamed Alias v PP [1983] 2 MLJ 172, it states: “…The fact that there are discrepancies in a witness’ testimony does not straight away make him an unreliable witness and make the whole of his evidence unacceptable. It is open to the court having observed the demeanour of the witness and after careful consideration of such discrepancies to accept parts of the witness’ evidence if it considers them to be true. It is important, in my view, for the trial Magistrate to state clearly whether the testimony of a certain witness whom he or she considers as unreliable is to be regarded completely. In S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 44 of 44 considering the discrepancies the court should take into account the educational background and experience of the witness and whether the witness is describing the events which have taken place recently or a long time ago and the demeanour...” [Emphasis added] [131] The same principle is further amplified in the case of Che Omar bin Mohd Akhir v PP (1999) 2 MLJ 689 where it was stated: “It is wrong to say that just because a witness may have contradicted in his evidence or even told lies on one or two points, his evidence should be totally rejected”. [Emphasis added] [132] On the same issue, Augustine Paul J didalam kes PP V Dato’ Seri Anwar Ibrahim (1999) 2 CLJ 215 enunciated: “The privy council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with it self, how it stands the test of cross examination, and how far it fits in with the rest of the evidence and the circumstances of the case…. It has been held that if the witness demonstrably tell lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be go to far…. The Indian Supreme Court has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or emblishment.” [Emphasis added] S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 45 of 44 [133] Thus, this Court is of the view that even if there exist difference in terms of where and when did the search list was filled out, said difference is immaterial and does not affect the prosecution case at all as all requirements needed to convict the Accused for criminal offence as charged against him has been proved. [134] The same could be said concerning allegation of differences in testimony on who first approached the Accused during the raid. [135] A plausible explanation on this variation might be due to the fact that when witnesses testify about a fact, they may testify differently according to their understanding and estimation of the distance from a personal point of view without having done the actual distance measurement process. [136] In this regard, reference can be made to the case of Lai Kim Hon v PP [1981] 1 MLJ 84 where the Federal Court stated: “Viewed as a whole it seems clear that the finding of fact made by the trial judge turned solely on the credibility of the witnesses. The trial judge heard the testimony of each witness and had seen him. He also had the opportunity to observe the demeanour of the witnesses. Discrepancies will always be found in the evidence of a witness but what a judge has to determine is whether they are minor or material discrepancies. And which evidence is to be believed or disbelieved is again a matter to be determined by the trial judge based on the credibility of each witness. [Emphasis added] [137] Looking into the notes of proceeding, this Court is of the view S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 46 of 44 that even if there are discrepancies in witnesses' testimony, such discrepancies do not affect the credibility of the witnesses. Reliance can be placed to Pie Bin Chin v Public Prosecutor [1985] 1 MLJ 234 where the Court of Appeal stated: Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth-combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness's entire evidence incredible. It is only when a witness's evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded. Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions. [Emphasis added] [138] This Court is also of the view that discrepancy in the testimony given between SD 2 and SD4 regarding who first approached the Accused during the raid is of minor importance and more of an attempt to remember or to estimate of the distance without prejudice to the fact that the Accused was indeed at the scene where the dangerous drugs were found. [139] Concerning this issue, this Court finds it appropriate to cite the S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 47 of 44 principle as enunciated in the case of Public Prosecutor v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 whereby it was stated: I shall be almost inclined to think that if there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or what had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. It is, therefore, necessary to scrutinize each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances. [Emphasis added] [140] With respect to the custody and/or control of said dangerous drugs, the defence had failed to raise any reasonable doubts based on the reasons stated in the preceding paragraphs herein.

[141] After considering all the evidence presented throughout this proceeding, this Court finds that the prosecution has successfully proven their case against the accused on both charges beyond reasonable doubt. By relying to the case of Mat v PP [1963] MLJ 263, this Court is satisfied beyond reasonable doubt as to the accused’s guilt and thus the Accused must be convicted. S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 48 of 44 [142] Hence, the Accused is ordered to put his mitigating factors before this Court pass any sentence. MITIGATING FACTORS [143] It was pleaded by the defence counsel that the Accused is of 38 years of age. He is unmarried and he cares for his stroke-ridden parent. His sustains himself through his work as a farmer. [144] The defence counsel also prayed for stay of execution of sentence that will be meted out against the Accused on the basis that the defence will lodge an appeal to the High Court. AGGRAVATING FACTORS [145] In responding to arguments by the defence, the Prosecution has pleaded for severe sentences against the accused on both charges. [146] In meting out sentence against the Accused, the Prosecution has [147] asked this Court to take into consideration that this case has been prolonged for far to long since its inception in 2020. It was argued that a too lenient sentence would not befit the time and cost it took for all parties to this proceeding. [148] The learned Deputy Public Prosecutor has pointed out the case of Pendakwa Raya v. Abdul Halim Bin Ishak & Anor [2013] MLJU 821. It was held by the Court of Appeal that in this kind case, a severe sentence must be warranted against the offenders to show the element of S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 49 of 44 denunciation. [149] The learned Deputy Public Prosecutor further submitted that this Court must also take into consideration the public interest and the amount of the seized items involved as enunciated in Public Prosecutor v. Ooi Teng Chian [2006] 1 MLJ 213. [150] Furthermore, it was further ventilated by the learned Deputy Public Prosecutor that the cases involving misuse of substances are rampant as in Tia Ah Leng v. Public Prosecutor [2004] 4 MLJ 249. [151] Having said of the above, the Prosecution has pleaded that leniency should not be granted to the Accused as this is not a case where the Accused has pleaded guilty to charges laid against him. In relation to this, reference is made to the case of Public Prosecutor v Ravindran & Others [1993] 1 MLJ 45. It was also argued that in passing sentence against the Accused, this court should not be overly sympathetic to the Accused’s personal plight. [152] In addition, it was argued that a stay of execution against the Accused should not be allowed as there no special circumstances has been proved in order to convince this Court that granting a stay of execution would suit the justice of this case. [153] It was further ventilated by the learned Deputy Public Prosecutor that should a stay of execution is granted against the Accused in this case and if the Accused runs away upon a stay of execution being granted. This court's decision will be a paper judgment. [154] The Prosecution also averred that in instance whereby the S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 50 of 44 Accused has been found guilty of crime as charged, presumption of innocence has ceased to exist and as such no cogent reason exist for not carrying out the sentence as has been passed by this Court. [155] It was also argued that appeal to a higher court shall not operate as a reason for a lower court to grant a stay of execution. In relation to this, reference was made to the case of Sharma Kumari Om Prakash v Public Prosecutor [2000] 6 MLJ 847. SENTENCING [156] Given the mitigating and the aggravating factors put forward by both parties, the accused was sentenced to an imprisonment term for a period of thirty (30) months from the date of conviction i.e., 27 August 2024 and 3 strokes of whipping. [157] The reasons for both sentences are as herein below. THE SENTENCING PRINCIPLES [158] It is trite that once a person is found guilty and convicted, the court shall pass sentence according to law. [159] It was observed by Mohamed J (as His Lordship then was) in Public Prosecutor v Jafa Bin Daud [1981] 1 MLJ 315 where it states: A ‘sentence according to law’ means that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles. In assessing sentence, one of the main S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 51 of 44 factors to be considered is whether the convicted person is a first offender. It is for this purpose that before passing sentence, a Magistrate is required to call for evidence or information regarding the background, antecedent and character of the accused. (see also Zaidon Shariff v. Public Prosecutor [1996] 4 CLJ 441 and Bhandulananda Jayatilake v. Public Prosecutor [1982] 1 MLJ 83) [Emphasis added] [160] It is in the forefront of mind that the utmost consideration is of public interest. Reference is made to Public Prosecutor v. Idzham Bin Shafiee [2006] 4 MLJ 236. [161] In this case, sentence as meted out was given within the prescribed punishment under section 39A (1) of the Dangerous Drugs Act

This Court adopts the principle enunciated in Public Prosecutor v Sim Joo Liong [2014] 1 LNS 402. [162] Hence, in this case, this Court must make an exercise to balance between the public interest and the interest of the Accused. [163] It is the considered view of this Court that the prescribed punishment under section 39A (1) of the Dangerous Drugs Act 1952 is crystal clear to show the intention and the seriousness of the Parliament so that the offence committed must be judged seriously for the public interest. Therefore, such intention must be reflected through the sentences imposed by our courts in accordance with law. [164] As submitted and pointed out by the learned Deputy Public S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 52 of 44 Prosecutor to the case of Public Prosecutor v. Ooi Teng Chian (supra) at page 229 paragraph 25 where the Federal Court states: - It is well established that sentencing in drug offences must reflect the public interest to be served as it is an on-going national problem. The weight of the drugs involved is another factor to be considered. In this case, the amount of dangerous drugs involved is very substantial. In such circumstances, neither the guilty plea of the accused nor the fact that he is a first offender can be considered to favorably in favor of the accused. Thus, we were of the view that the sentence imposed by the learned trial judge was inadequate. According, we increased the term of imprisonment to 15 years. The imposition of the 10 strokes of rattan was retained. [Emphasis added] [165] In Tia Ah Leng v Public Prosecutor (supra), the Court of Appeal was of the opinion that the effort of the legislature to curb and deter drug related offences must be upheld and supported and that the courts should also help to curb these activities by imposing stringent punishments provided by the law. The Court of Appeal agreed and refered to the cases of Loh Hock Seng & Anor v. Public Prosecutor [1980] 2 MLJ 13 and Public Prosecutor v. Loo Choon Fatt [1976] 2 MLJ 256. [166] Having said aforesaid, this Court views that both sentences were given appropriately given the facts and the circumstances of this case. The amount of the psychotropic substances found with the Accused was quite substantial. In respect of the mitigating factors put forth by the defence counsel whereby the accused is married with a wife and several children, most of whom are no longer living with him. His income came from his work as a pensioner. He supplements his income by being a fishmonger and also S/N yi9AtIex0EaacDFrLmaU4g Magistrate Rais Imran bin Hamid Page 53 of 44 a first-time offender are not sufficient to justify lesser punishments. It carries less weight against the public interest on the scale of justice. [167] In addition to that, the whole trial has taken time and cost of the parties involved. Hence, the accused cannot be justified to have lesser punishments in contrast to the case of Zaidon Shariff v Public Prosecutor (supra). [168] In a word, sentence as meted out was justified by considering the facts and circumstances of this case and thus, passed in accordance with law. CONCLUSION [169] Based on the facts and circumstances herein above, this Court find the accused guilty and be convicted under section 39A (1) of the Dangerous Drugs Act 1952. This Court so orders. sgd RAIS IMRAN BIN HAMID MAGISTRATE PASIR MAS MAGISTRATE COURT KELANTAN Dated: 12th October 2024 S/N yi9AtIex0EaacDFrLmaU4g