[Pendakwa Raya] v MHD FARID BIN MHD ISA (DA-82D-5-10/2022)

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

Upon close perusal of evidence presented by both parties to this Magistrate Rais Imran bin Hamid 2 proceeding, and upon applying maximum evaluation to the same set of evidence, this Court, on 21st of April 2024, found that the Accused had failed to cast reasonable doubt against prima facie case (beyond reasonable doubt) that had been proven by the 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 magistrate and was 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.

It is also worthy to note that halfway through the commencement of this proceeding, defence counsels acting on behalf of the Accused withdrew from representing the Accused. Given this development, the Accused was given time to find alternative arrangements in order for him to be defended. After a suitably protracted duration of time, the Accused chose to defend himself. As such, this Court endeavored to accommodate the Accused’s predicament by making sure prosecution’s case was explained to the Accused at each and every time prosecution’s witness concluded his/her testimony during examination-in-chief, in line with section 257 of the Criminal Procedure Code. The Accused was later afforded ample time to prepare for his case as the proceeding would be discoursed to another date, to be continued by the Accused who the proceeded to question prosecution’s witnesses on a later date.

This Grounds of Judgment is written to explain the rationale behind this court's decision against the Accused dated 21st of April 2024. THE PROSECUTION CASE Magistrate Rais Imran bin Hamid 3 a) Possession of Illicit drug

On 18/01/2021 at approximately 10:52 am, ASP Sukhri bin Yaacob (G/16146) (“PW2”) along with his task force team from the 8th Battalion of the General Operations Force raided T3-14 Cempaka Block, located at 8th Battalion of the General Operations Force Police Housing Complex, 16100 Pengkalan Chepa Kelantan. Upon arrival at said location, PW2 called upon inhabitant of the house to open the door. In response to this, a man opened the door. PW2 later introduced himself as a senior police officer by showing the man his police authority card. A quick check on said inhabitant’s identity found that he is a police officer by the name of Mhd Farid bin Mhd Isa (“the Accused”).

PW2 along with members of his raiding team entered the house and conducted an inspection inside it. Said inspection resulted with finding of one (1) gold/red cigarette box on a wooden table situated in a small room at the back of said house’s kitchen. In the presence of said the Accused, PW2 proceeded to conduct further inspection on the cigarette box and found inside it, one (1) transparent plastic containing crystal powder of suspected illicit drug origin along with one (1) glass tube bottle tool for smoking drugs near the cigarette box. PW2 confiscated those items and arrested said inhabitant.

The confiscated items were then handed over to PW6 who was the investigating officer of this case. PW6 later delivered the same to the Malaysian Chemistry Department to be analyzed by PW4.

PW4’s analysis confirmed that said confiscated item contained 0.05- gram Methamphetamine. To record this finding, a chemist report was duly prepared by PW4. Magistrate Rais Imran bin Hamid 4 b) Self-administration of illicit drug

Upon his arrest, the Accused was brought by PW2 to Narcotics Criminal Investigation Division of Kota Bharu District Police Headquarters, There, the Accused went through urine screening test. it was later found that the inhabitant’s urine specimen tested positive for Amphetamine. The same was relayed to PW6 as the investigating officer for his further action.

As part of PW6’s investigation into this case, the same urine sample was sent for in-depth analysis at Pathology Department, Raja Perempuan Zainab II Hospital, Kota Bharu, Kelantan. Further analysis was later carried out by PW1 who confirmed that the Accused’s urine specimen contained Amphetamine and Methamphetamine as listed in the First Schedule in Part III of the Dangerous Drugs Act 1952.

At this juncture, it is imperative for this Court to assess whether a prima facie case has been successfully made against the Accused. To do so, an exercise of maximum evaluation has to be undertaken 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 for offences alleged against the accused are met by the prosecution. (see Public Prosecutor v Mohd Radzi Abu Bakar [2006]1 CLJ 447, Looi Kow Chai v Public Prosecutor [2003] 1 CLJ 734 and Balachandran v Public Prosecutor [2005] 1 CLJ 85) THE ANALYSIS Magistrate Rais Imran bin Hamid 5 a) Possession of Illicit drug [15] In relation to Section 12(3) of the Dangerous Drugs Act 1952, the ingredients required to be proved relating to possession of illicit drug are as the following - i. The Accused had possession of dangerous drugs (control or custody); ii. The Accused had knowledge of said dangerous drugs; iii. The drug was listed under the First Schedule of the Dangerous Drugs Act 1952; iv. The Accused was not a person authorized or deemed as such under the Dangerous Drugs Act 1952, or Regulations made under that Act.

Upon close scrutiny, this Court finds no reason to discredit the evidence given by PW2 regarding dangerous drugs analysis done as indicated in Exhibit P27. There was no defect in PW4’s analysis and no credible challenge was made on the identity of illicit drug. PW4 confirmed that said illicit drug was listed as dangerous drug in the First Schedule of the Dangerous Drugs Act 1952, to wit: Methamphetamine weighing 0.05 grams. (see Public Prosecutor v Chia Leong Foo [2004] 4 CLJ 649). Thus, this Court is of the view that the nature and the weight of illicit drug forming the subject matter in this case has been successfully proved.

Looking at the totality of evidence adduced throughout this proceeding, it is safe to conclude 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 license was granted to enable the Accused to have in his control and custody said dangerous drug. Magistrate Rais Imran bin Hamid 6

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 drug (actus reus), but it is also equally if not more important to show that he had the intention of dealing with it (mens rea) as if it belonged to him. In other words, possession is not made out merely because the Accused was situated so near to the impugned drug. As laid out in Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237, possession is only proven when both physical element and mental element are present.

In gist, possession is only is only said to be present whereby a presiding judge is safely assured that 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.

Nonetheless, shedding light into what constitutes mental element in an offence of illicit drug possession is by no means an easy feat as this can only be done, more often than not, by way inference from the surrounding circumstances due to the fact that, by nature, intention cannot be proved through direct evidence. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. (see Pendakwa Raya lawan Lim Chsung Meng Dan Seorang Lagi [2015] 1 LNS 1226)

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 Magistrate Rais Imran bin Hamid 7 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 Public Prosecutor [1993] 4 CLJ 1, Pang Chee Meng v Public Prosecutor [1992] 1 CLJ (Rep) 265, Saludin bin Surif v Public Prosecutor [1997] 3 CLJ 529 dan Gooi Loo Seng v Public Prosecutor [1993] 3 CLJ.)

Reverting to the case at hand, this Court finds that the impugned drugs was under the control and/or custody of the Accused. As evident from testimony of PW2 as the one who led the raid against the Accused’s, the raid was instigated by the Accused’s failure to show up for work. There was no one else in said house other than the Accused. In fact, it was the Accused who opened the door as PW5 and his raiding team approached the house. PW2 along with members of his raiding team proceeded to the house and conducted an inspection inside it which resulted with finding of one (1) gold/red cigarette box on a wooden table situated in a small room at the back of said house’s kitchen containing one (1) transparent plastic of crystal powder, suspected illicit drug origin along with one (1) glass tube bottle tool for smoking drugs near the cigarette box.

In addition, affirmative 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 dweller of said small room in exclusion of others. This fact serves as an incontrovertible proof of the Accused’s control over the house and drug found within it. As Magistrate Rais Imran bin Hamid 8 a lower rank officer of the General Operation Force based at Pengkalan Chepa, Kelantan, the house was allotted to the Accused as his living compartment within the General Operation Forces’ residential complex. Therefore, it is quite improbable for the Accused to be there by accident or for any other purpose other than to exercise control of said dangerous drug.

This affirmative link is further bolstered by the result of investigation done concerning the state of said small room where the impugned drug was found along with its paraphernalia situated on the table in the small room. PW6’s investigation had successfully established the Accused’s control over said small room as no one but for the Accused had habitually use and occupy said room as a resting place prior to the raid conducted by PW2. (See Aaron Chong Chernlin v Public Prosecutor [2022] 1 LNS 2750).

This Court notes that relevant as circumstantial evidence of drug possession by the Accused is the finding of narcotics related paraphernalia in the same room occupied by the Accused, whose utility was obviously for the consumption of impugned drug. This important circumstantial evidence heavily inferred that the Accused was in possession of the impugned drugs found by PW2. (See Sharom bin Ahmad and another v Public Prosecutor [2000] 2 SLR(R) 541)

The veracity of Prosecution’s account of the raid, discovery and seizure was verified by PW6 who confirmed how the arrest was made by the police against the Accused.

Though it might be true that the Accused was not the only occupant to said house as the Accused was married and had child who were also Magistrate Rais Imran bin Hamid 9 residing in the same house, this court can safely 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 the vicinity from the seized items without any lawful excuse or plausible explanation.

As a starter, this Court observes that no visible gap exist in prosecution’s case in this regard as the question of access has been dealt with sufficiently through evidence of PW6 who is the investigating officer of this case.

Through PW6’s investigation, it is understood that the small room whereby the impugned drug along with narcotics related paraphernalia was not and open space, in fact it was enclosed by four walls and was only accessible from one access door.

PW6’s investigation also showed that the same room was not habitually occupied by anyone save for the Accused. In fact, no credible challenge was put to show that access to the same room was made open to anyone who resided in the same house as the Accused at the material time. No indication was put up to show that at least on one instance, the same room was boarded by someone else, nor was the room tended by someone else save for the Accused. Moreover, evidence as presented to this Court seemed to suggest that everyone residing in the house, had avoided the room save for the Accused who used it as his resting place.

Hence, if one were to look at this turn of event from a circumstantial evidence viewpoint, if a cigarette box and narcotics related paraphernalia were to be found inside a room exclusively occupied by the Accused and by chance the same cigarette box was to contained impugned drug, whose cigarette box would it be but for the Accused’s? Magistrate Rais Imran bin Hamid 10

Against this backdrop, it was not open for the Accused to claim as his defence that he had no knowledge of the presence of the impugned drug in said room and therefore in law he was not in possession of it, by relying on or resorting to show that someone else was in occupation of the same house at the time of the raid and that another person, had possibility of access to the small room. This is such so as against totality of evidence presented, such assertion of access by others to negative the proof of exclusive possession on behalf the Accused has no probative value and at best, a mere conjecture on the Accused’s behalf in order to save him self from the fallout brought upon by the charge laid against him in this case by bringing up matter

In this regard, this Court finds the discussion as presented in the case of Public Prosecutor v Denish a/l Madhavan [2009] 2 MLJ 194 extremely helpful in shedding light into the question of determining whether the Accused can be said to have possession i.e. control and custody of the room in question.

In dealing with this question, the Federal Court noted that it is inappropriate to speak of possession of an article in criminal law as exclusive possession. It was further deliberated that one is either in possession or not in possession, although one could be in possession jointly with another or others. To say that the prosecution of a drug case fails because there has been no proof of exclusive possession is apt to convey the wrong impression that it is only in cases where possession is entirely with one person, — that is, ‘exclusive’ — that a conviction is possible.

Taking guidance from the Federal Court at heart, this Court opines that in light of factual matrix presented in the case at hand, once elements Magistrate Rais Imran bin Hamid 11 needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession.

This Court believes that this is the right course of action to take in evaluating evidence as presented in a drug possession case, as to demand otherwise i.e. to demand a strict exclusivity of access to such impugned drug from imaginary possible others would be to demand an extraordinarily high standard of evidentiary burden to prove possession and in turn giving in to fanciful claims based on unfounded conjecture. To my mind, such approach is not envisaged by the law.

As it stands, based on evidence proffered throughout this proceeding, this Court is convinced that no room is left open for suggestion that someone else other than the Accused as having been capable to deal with the impugned drug found near the Accused’s vicinity in the small room. Evidently, the possibility of access by others to the small room has been successfully negated by the prosecution. In this case, the exclusive element of possession means that the Accused, in exclusion of others, has the power to exclude other persons from enjoyment of the property in question that is the small room, and this has been successfully proved.

Under such condition, the Accused who had access to and control over said small room 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.

Given that the element of control or custody of the drug found is successfully proved against the Accused, presumption under section 37(d) of the Dangerous Drugs Act 1952 was invoked against him, whereby whenever the Accused was found to have had in his custody or under his Magistrate Rais Imran bin Hamid 12 control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug. b) Self-administration of illicit drug

In relation to Section 15(1)(a) of the Dangerous Drugs Act 1952, the ingredients required to be proved relating to possession of illicit drug are as the following – i. The Accused administered dangerous drug to himself; ii. The drug was listed under the First Schedule of the Dangerous Drugs Act 1952;

Upon close scrutiny, this Court finds no reason to discredit the evidence given by PW1 regarding dangerous drugs analysis done as indicated in Exhibit P6. There was no defect in PW1’s analysis and no credible challenge was made on the identity of exhibit tendered by the Prosecution. PW1 confirmed that the illicit drug detected in urine specimen attributed to the Accused is listed as dangerous drug in the First Schedule of the Dangerous Drugs Act 1952. (see Public Prosecutor v Chia Leong Foo [ 2004] 4 CLJ 649). Thus, this Court finds that the nature the illicit drug detected in urine specimen attributed to the Accused forming the subject matter in this case has been successfully proved.

A more contentious discussion is set for determination of whether the Prosecution has successfully proved that the Accused administers dangerous drug to himself. Magistrate Rais Imran bin Hamid 13

Upon close scrutiny of evidence as presented throughout this proceeding, this Court is of the belief that the earlier posed question has to be answered in positive.

Firstly, report made under Section 399 of the Criminal Procedure Code had confirmed that urine specimen attributed to the Accused did contain illicit drug.

Up until now, no credible indication was brought forward to suggest fatal procedural non-compliance on behalf of the Prosecution of in carrying out test against the Accused.

PW2’s testimony confirmed that upon arrest, the Accused was brought by PW2 to Narcotics Criminal Investigation Division of Kota Bharu District Police Headquarters, There, the Accused went through urine screening test, whereby the Accused chose for himself a bottle to be used for the screening test. The screening test was administered against the Accused by PW2 from start to finish and it was later found that the Accused’s urine specimen tested positive for Amphetamine. The same was relayed to PW6 as the investigating officer for his further action.

As part of PW6’s investigation into this case, the same urine sample was sent for in-depth analysis at Pathology Department, Raja Perempuan Zainab II Hospital, Kota Bharu, Kelantan. Further analysis was later carried out by PW1 who confirmed that the Accused’s urine specimen contained Amphetamine and Methamphetamine as listed in the First Schedule in Part III of the Dangerous Drugs Act 1952.

As correctly pointed out by the learned Deputy Public Prosecutor, all procedures were followed through during the screening test and the chain Magistrate Rais Imran bin Hamid 14 of evidence was also unbroken from the time the accused placed the bottle sample on the table for the purpose of the initial screening test until it was sent to the Drug Laboratory, Pathology Department. All witnesses presented also identified the urine bottle.

This Court is convinced that the whole process of urine collection by PW2 up until testing done by PW1 was done in accordance to the law given that chronologically, all steps taken to procure the Accused’s urine specimen followed through guidance as laid out in Public Prosecutor v Mohamad Rasid Jusoh [2009] 9 CLJ 557 whereby per Section 31A(1A) of the Dangerous Drugs Act 1952 the law allows a police officer to collect a urine specimen from an arrested person albeit subject to the proviso that it was not practicable for a medical officer to do so. What is important is the proper labelling of the bottle containing the sample with the name of the arrested person and the proper testing of the sample by a government expert.

This Court is also of the view that the test result from a urine sample is not rendered inadmissible merely because the police could not prove that sending the suspect to see a medical officer to take a urine sample was not practicable. (See Public Prosecutor v Samsul Arifin Bakar [2020] 7 CLJ 503, Public Prosecutor lwn Mohd Safwan Husain [2017] 7 CLJ 685)

Although no medical officer was contacted prior to conducting the screening test on the Accused, based on the case of Choo Kah Chong v Public Prosecutor [2019] 1 LNS 13 and the case of Public Prosecutor v Mohd Rasid Jusoh [2009] 9 CLJ 557, such predicament would not adversely affect the prosecution’s case since in actuality, the law places utmost importance in guaranteeing integrity of the sample taken by dispatching it at the earliest instance for testing, regardless of whether this Magistrate Rais Imran bin Hamid 15 function is to be carried out by a medical officer of by a police officer. In fact, this is closer to the purpose of subsection 31A(1A) being enacted as recorded in Hansard of the Dewan Rakyat of the Second Meeting dated 19.6.2002 of the Tenth Session of the Fourth Parliament, which is stated as follows: “Tujuan pengambilan contoh air kencing oleh pegawai polis berpangkat sarjan adalah semata-mata bagi maksud memelihara keterangan, dengan izin, preservation of evidence sahaja…”

This Court is further satisfied that when PW2 physical removed the Accused from his dwelling to Narcotics Criminal Investigation Division of Kota Bharu District Police Headquarters for the offence of drug possession. This effectively means that an arrest had been affected against the Accused. As such, the Accused, by all definition, had been arrested prior to having been taken for his urine screening test. In this regard, reference can be made to the case of Public Prosecutor lwn. Mohd Safwan Husain [2017] 7 CLJ 685, which stated:

When the respondent's urine sample was taken for the purpose of preservation and examination under s. 31A(1) and

of the DDA, the respondent had been arrested and was an arrested person within the meaning of the provision. The arrest had been made based on the information pertaining to an offence under the DDA committed by the respondent, and the arrest was not merely to make inquiries from the respondent. Although the respondent was said to have cooperated, and was a support police officer, his freedom was curtailed and he was forced to do as ordered by SP2. [Emphasis added] Magistrate Rais Imran bin Hamid 16 [52] Guided by said case, this court is of the view that when the Accused was instructed to select a “urine container package” and was instructed to provide a urine sample, he was in fact arrested under the law. Therefore, at the time of providing his urine sample, the Accused was an arrested person and not a free person. [53] Based on these reasons, this court is satisfied that urine collection process and the labeling made on the bottle and believes that all procedures prescribed under Section 31A of the ADB had been followed through. Based on P2 (Exhibit P2) signed by the Accused, this court is also satisfied that the Accused was aware of the procedures carried out by PW2 during the screening test process. [54] On top of that, SP1 in his testimony confirmed that when he received the urine sample bottle, it was sealed and in perfect condition. He also received (Exhibit P2) along with the urine sample bottle of the Accused. SP1 was also able to recognize the pictures of the sample bottles shown to him. At all times, no doubt was successfully pleaded concerning the identity of the urine sample bottle attributed to the Accused. Moreover, the testimony of PW1, PW2 and PW6 clearly showed that the label on the urine sample bottle of the Accused had the same information as the Exhibit P2. Therefore, there is no possibility that urine bottle received by PW1 was not of the Accused but belonging to someone else. [55] This circumstance gave rise to invocation of presumption under section 37(k) of the Dangerous Drugs Act 1952 whereby in this circumstance, until and unless proven otherwise, the law presumes the Accused had administered to himself such dangerous drugs per charge against him. Whenever this presumption applies, the burden of proof Magistrate Rais Imran bin Hamid 17 shifted to the Accused to prove to the contrary. [56] This Court observes that throughout commencement of this proceeding, this presumption has yet to be rebutted by the Accused as no evidence has been brought forward to that effect. SECTION 114 (g) OF THE EVIDENCE ACT 1950 [57] Furthermore, this Court finds it apt to discuss the propriety of invoking “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 him. [58] Given that the Accused had challenged the veracity of PW2’s account of the incident, it was argued that the 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 other members of the raiding team gave rise to adverse inference under Section 114 (g) of the Evidence Act 1950, against the prosecution. [59] As observed in Munusamy v Public Prosecutor [1987] 1 MLJ 492, 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. Magistrate Rais Imran bin Hamid 18 [60] In this regard, this Court reiterates 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. [61] Consequently, it is understood that the 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. [62] 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 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. [63] 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. [64] 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 Magistrate Rais Imran bin Hamid 19 to be meted out in a given proceeding. Reference can be made to Section 134 of the Evidence Act 1950. [65] This same principle is further reiterated in the case of Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No.3) [1999] 2 MLJ 1, whereby 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 [66] 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. [67] Upon assessing the evidence presented at the end of prosecution's case, this Court finds that PW1 to PW6 are credible witnesses and their testimonies formed a coherent evidentiary narrative without posing any material contradiction to each other’s’ testimonies. [68] This Court also finds no reason to disbelieve PW2 and PW6’s account of the incident given that no credible allegation was 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. (see Public Prosecutor v Shaaban bin Abdul Rahman [1989] 2 MLJ 313) Magistrate Rais Imran bin Hamid 20 [69] Given that there is nothing inherently improbable about the witness’s story and his evidence was neither contradicted by other evidence nor shaken by cross-examination. In the circumstances it is the duty of this Court to have called on the defence. (see Public Prosecutor v Basar [1965] MLJ 75) [70] At all material times, 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. [71] In fact, the absence of 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 other 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 (No.3) (supra). [72] 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 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 Magistrate Rais Imran bin Hamid 21 Accused’s defence is a mere recent invention by the Accused in the later part of this proceeding in order to save himself. (See Public Prosecutor v Badrulsham Baharom [1988] 2 MLJ 585, Alcontara Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705, Teng Howe Sing v Public Prosecutor [2009] 3 MLJ 46, Raman a/l Kunjiraman v Public Prosecutor [2018] Supp MLJ 86) [73] In the case of Alcontara Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705 above, the Federal Court 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. [74] 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. [75] Hence this Court is of the view that no evidence of the Accused seriously challenging any of the prosecution’s witnesses at the stage of the cross-examination let alone testing his defence at the earliest opportunity i.e at the prosecution’s stage. Without such a challenge the credibility of the Magistrate Rais Imran bin Hamid 22 prosecution’s witnesses must remain intact. (See Shamim Reza bin Abdul Samad v Public Prosecutor [2009] 2 MLJ 506) [76] Along the same juncture, this Court could not bring itself to agree with the assertion that a favorable inference should be drawn against the Accused just because the Accused alleged that the true fact surrounding his arrest differed from PW2’s account of the incident. [77] 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. CHAIN OF EVIDENCE [78] 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. [79] 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 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. [80] The options required under section 173(ha) of the Criminal Procedure Magistrate Rais Imran bin Hamid 23 Code have been explained in a language conversant to the Accused. THE DEFENCE CASE [81] The Accused decided to give his sworn testimony from the witness box. [82] The Accused claimed that contrary to testimonies by PW2 and PW6, he was never arrested per First Instance Report. [83] The Accused further claimed that it was his wife who opened up the door as PW2 called upon inhabitant of the house to open the door. [84] Only then was he awakened from his sleep by 2 plain-clothed policeman who came in the house and raided it. [85] It was further alleged 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. [86] The Accused alleged that the true account of his arrest was also witnessed by his wife. [87] 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. [88] Only thereafter was the Accused handed over to PW6 at Kota Bharu Police District Headquarters, along with a green plastic bag containing drug and its paraphernalia purportedly seized form the Accused’s house. for Magistrate Rais Imran bin Hamid 24 further investigation. BURDEN OF PROOF AT THE END OF THE DEFENCE CASE [89] 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. (See Romi Amora Amir v Public Prosecutor [2011] 1 CLJ 870). [90] 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 as explained in the case of Balachandran v Public Prosecutor [2005] 1 CLJ 85. [91] “Reasonable doubt” has been explained in the case of Public Prosecutor 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 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] Magistrate Rais Imran bin Hamid 25 [92] 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 [93] 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. [94] 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 PW2 is nothing but a bare denial, designed specifically for the sole reason of finding ways to exculpate the Accused from charges laid against him. [95] 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. [96] 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. [97] This does not explain anything, most particularly why a cigarette box Magistrate Rais Imran bin Hamid 26 and narcotics related paraphernalia were found inside a room exclusively and habitually occupied by the Accused and by chance the same cigarette box was to contained impugned drug 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 Prosecution’s narrative of how the case unfolded against the Accused. [98] In relation to this, this Court refers to a principle as laid down in the case of D.A. Duncan v Public Prosecutor [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] [99] 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 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 Accused 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. Magistrate Rais Imran bin Hamid 27 [100] In this regard, this Court fails to see any reason as to why prosecution witnesses should go all out conspire to commit perjury merely to get the Accused convicted. What would they gain by getting the Accused convicted? What could be the motive? They had no axe to grind against him. For lack of proof in support of the Accused’s assertion, this Court is compelled to follow guidance as enunciated in PP v David Ackowuah Bonsu [1999] 2 CLJ 677 to reject the Accused’s claim of being victimized in the sinister game contrived against him. [101] 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. [102] 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 claimed that contrary to testimonies by PW2 and PW6, he was never arrested per First Instance Report and that it was his wife who opened up the door as PW2 called upon inhabitant of the house to open the door. Only then was he awakened from his sleep by 2 plain-clothed policeman who came in the house and raided it. [103] 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. [104] The Accused claimed that only thereafter was the Accused handed over to PW6 at Kota Bharu Police District Headquarters, along with a green plastic bag containing drug and its paraphernalia purportedly seized form the Accused’s house. for further investigation. Magistrate Rais Imran bin Hamid 28 [105] 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. [106] 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. [107] 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 as the Accused ought to state his defence against the prosecution at the earliest possible 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 (See Megat Halim Megat Omar v PP [2009] 1 CLJ 154). [108] This Court also finds that DW2’s testimony could not in any way help the Accused’s case against the Prosecutor given that her testimony did nothing to cast doubt over the narrative set forth by the Prosecution. [109] Most remarkably, by her own admission, DW2 testified that she was not present in the small room at the back of the house during search done by PW2 and his riding team. This is also coupled by the fact that according to DW2 no one residing in the house at the material time is a Magistrate Rais Imran bin Hamid 29 smoker but for the Accused. [110] DW2 also testified that she was also not present during urine specimen collection process done on the Accused at Kota Bharu Polis Station. [111] This Court also finds that defence witnesses DW2 is an interested witness and her testimony in court should be taken with caution. Such is the case as this Court finds that both of her testimony could not in any way help the Accused’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. [112] It is noted that DW2 had only come forward to testify as witness as the trial proceeded in 2025 despite knowing all well that the incident involving the Accused had taken placed sometime in 2021. [113] If there is any shred of truth in the accusation that the Accused was framed for a crime he had no knowledge of, that it was not true that the Accused was arrested per First Instance Report and in truth it was DW2 who opened up the door as PW2 called upon inhabitant of the house to open the door, surely both the Accused and DW2 had more than sufficient time 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 given that both of them had come to know the news about arrest made against the Accused soon after the incident allegedly took place. Up until now, no evidence was produced to show the Accused and DW2 had in fact notified PW6 at the earliest stage possible so that a proper and in-depth investigation could be done to uncover purported lies by PW2. Magistrate Rais Imran bin Hamid 30 [114] 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. [115] 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. [116] This shows that testimonies by the Accused and DW 2 could not be given any proper merit to justify the Accused’s acquittal from charges laid against him. [117] 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 the Accused and DW2, their testimonies must be given lesser weightage than that of prosecution’s witnesses. [118] 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: Magistrate Rais Imran bin Hamid 31 “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. [59] Tanpa keterangan sokongan bebas, Mahkamah ini menolak keterangan SP6.” [Emphasis added] [119] This Court also finds that that no evidence was 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. To my mind these public officers merely testified based on what they actually saw on the particular day. They could 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. [120] 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 (See Public Prosecutor v Ahmad Kamil Anuar [2020] MLJU Magistrate Rais Imran bin Hamid 32 2236; [2020] 1 LNS 2109) . DECISION [121] After considering all 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 Public Prosecutor [1963] MLJ 263, this Court is satisfied beyond reasonable doubt as to the accused’s guilt and thus the Accused must be convicted. [122] Hence, the Accused is ordered to put his mitigating factors before this Court pass any sentence. MITIGATING FACTORS [123] The Accused is of 43 years of age. He is married with 5 children under his care and custody as the sole breadwinner in the family as his wife is unemployed and merely does sewing on occasional basis. He sustains his family through his work as a policeman but due to this criminal complaint lodged against him, his pay is halved, leaving him with a meager RM109 per month in savings. [124] The Accused further pleaded for mercy due as his conviction would adversely affect livelihood of his family. The Accused averred that his eldest child is still pursuing her tertiary education at IIUM Gambang, Pahang while another child will be sitting SPM later this year. While other children are still at school, the 4th child suffers from asthma and is due to intestinal surgery which would in turn follow up treatment at hospital. Magistrate Rais Imran bin Hamid 33 [125] The Accused asserted his repentance for his mistakes and promises not to repeat such mistakes in the future. The Accused further explained that some level of consideration ought to be placed before sentencing him for his conviction in this case as he has been cooperative throughout this proceeding, but due to financial reasons, he cannot appoint a lawyer to represent him to the end. [126] The Accused 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 [127] In responding to arguments by the Accused, the Prosecution pleaded for severe sentences against the accused on both charges. [128] In meting out sentence against the Accused, the Prosecution asked this Court to take into consideration that this case has been prolonged for far too 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. [129] The learned Deputy Public Prosecutor 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 denunciation. [130] The learned Deputy Public Prosecutor further submitted that this Magistrate Rais Imran bin Hamid 34 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. [131] Furthermore, the learned Deputy Public Prosecutor further ventilated that harsher punishment is warranted due to rampancy of cases involving misuse of substances as in Tia Ah Leng v Public Prosecutor [2004] 4 MLJ 249. [132] Having said of the above, the Prosecution 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, instead in passing sentence against the Accused, this Court should not be overly sympathetic to the Accused’s personal plight. In relation to this, reference is made to the case of Public Prosecutor v Ravindran & Others [1993] 1 MLJ 45. [133] In addition, the Prosecution further averred 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 justice of this case. [134] The learned Deputy Public Prosecutor further ventilated 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 reduced to nothing but a paper judgment. [135] The Prosecution also averred that in instance whereby the 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. Magistrate Rais Imran bin Hamid 35 [136] The Prosecution also pointed out that an 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 [137] Given the mitigating and the aggravating factors put forward by both parties, the Accused was sentenced to an imprisonment term for a period of six (6) months from the date of conviction i.e., 21st April 2025 for each count of charge levelled against him. These sentences were ordered to run concurrently [138] The reasons for both sentences are as herein below. THE SENTENCING PRINCIPLES [139] It is trite that once a person is found guilty and convicted, the court shall pass sentence according to law. As it was observed in Public Prosecutor v Jafa Bin Daud [1981] 1 MLJ 315, 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. [140] 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. [141] In this case, sentence as meted out falls well within the ambit of Magistrate Rais Imran bin Hamid 36 prescribed punishment under section 12(3) and 15(1)(a) of the Dangerous Drugs Act 1952. This Court adopts the principle enunciated in Public Prosecutor v Sim Joo Liong [2014] 1 LNS 402. [142] Hence, in this case, this Court must make an exercise to balance between the public interest and the interest of the Accused. [143] It is the considered view of this Court that the ambit of prescribed punishment under section 12(3) and 15(1)(a) 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. [144] 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. (See Public Prosecutor v Ooi Teng Chian (supra)) [145] 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. (See also Loh Hock Seng & Anor v Public Prosecutor [1980] 2 MLJ 13 and Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256.) [146] Having said that, this Court views that both sentences are appropriately given the facts and the circumstances of this case. In respect of the mitigating factors put forth by the Accused, this Court views that such factors carry less weight against the public interest on the scale of justice. Magistrate Rais Imran bin Hamid 37 [147] 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). [148] This court is of the opinion that sentence of imprisonment is more appropriate to be imposed on the Accused due to the fact that this case was resolved through a full trial and the Accused was convicted after defence called. It is the view of this court that a person who is found guilty after a lengthy trial should be given a heavier sentence subject to the facts and the mitigating factors when compared to a person who has pleaded guilty which of course will be subject to the facts and the mitigating factors. (See PP v Yee Tham Soon [2000] 7 CLJ 519). [149] This Court also notes that punishment in the form of sentence passed against the Accused should and would serve as a lesson for the Accused and the society at-large in ensuring that this would not be repeated ever again. This sentence would also serve as a testimony of the judicial system’s seriousness and vigilance against drug-related offence. [150] On top of that, the most glaring aspect that differentiates this case from other cases is the fact that the offender in this case i.e. the Accused is a police officer. The Accused should have acted as a towering figure in the society by becoming exemplary personnel in carrying out his duty to maintain peace and ensure that the law is upheld, not only against other but also against himself. However, by committing such criminal act, the Accused has sullied the sacred trust entrusted in him and as such has tainted the good image of the law enforcement machinery. It is the considered view of this Court that sentences meted out against the Magistrate Rais Imran bin Hamid 38 Accused would serve as a reminded to all of us, especially those who are involved in enforcing the law such as personnel in the police force, prosecutors and judicial officers that no one is above the law. Much like charity, integrity also starts at home, and that good and orderly society would only be possible if each and everyone of us plays our role to adhere and abide to the black letter of the law without fear or favor, affection or ill will. [151] In a word, sentences as meted out are justified by considering the facts and circumstances of this case and thus, passed in accordance with law. CONCLUSION [152] Based on the facts and circumstances herein above, this Court finds the Accused guilty and be convicted for both counts of charge levelled against him. This Court so orders. sgd RAIS IMRAN BIN HAMID MAGISTRATE KOTA BHARU MAGISTRATE COURT KELANTAN Dated: 12th June 2025