[Pendakwa Raya] v Muhammad Zulhilmi Bin Abdul Rahman (DA-83D-3305-12/2021)

PW1 made no observation prior to blockading the Accused as he and the team felt suspicious of the man was sitting on the motorcycle as if waiting for someone being whilst the motorcycle was turned off. According to PW1, at the material time, there was no one else present.

Right after PW1 and the raiding team blockaded the motorcycle, PW1 approached the man on the motorcycle and saw that he was holding a white plastic bag in his left hand. PW1 later introduced himself as police, after which the man attempted to flee. The man was successfully detained after a brief struggle where PW1 held the defendant's left hand and subsequently seized the plastic package held by the Accused with the assistance of the raiding team. As a result of the struggle, the Accused sustained injuries to his left and right hands.

In front of the Accused and members of the raiding team, PW1 subsequently conducted an inspection of the plastic package that was seized, where it was found that inside the white plastic package (marked as P7) there was a bright-colored plastic (marked as P8), containing a yellow paper package taped (marked as P9), which further contained 5 blue plastic packets (marked as P16), which were tied with 2 rubber bands (marked as P10).

In response to this development, PW1 issued 1 search list at the scene and listed the seized items at the scene which was later signed by the Accused. Further examination onto one of the blue plastic packets found that it contained red and green pills suspected to be illicit drug.

PW1 then took the Accused along with the seized items to JSJN IPK Kelantan. There, PW1 proceeded to interrogate the Accused regarding the source of the drugs obtained. Subsequently, based on the information obtained from the Accused, SP1 carried out a follow-up raid/arrest where PW1 made an arrest on an individual named Mohd Nor Faizul bin Ismail. However, during the arrest of this second individual, no illegal items were found. Throughout the follow-up raid, the Accused along with the seized items were under the custody of PW1.

Around 6:30 PM on the same day, at JSJN IPK Kelantan, PW1 conducted further inspection on the seized items in the presence of the Accused. The further inspection revealed that each of the 5 blue plastic packets that were seized contained 198 red pills and 2 green pills suspected to be illicit drugs.

Thus, PW1 issued another search list. This form was signed by the Accused and counter signed by PW1. The form was tendered in the Court and marked as P17.

PW1 subsequently made a police report per police report KOTA BHARU/010030/21 which was marked as P4.

The seized items and the Accused were handed over by PW1 to PW4 as the investigating officer at around 8:30 PM to 9:00 PM on the same date. As proof of this handover, PW1 prepared one (1) handing over list, signed by PW1 and counter signed by PW4. This form was tendered in Court and was marked as exhibit P18.

Pursuant to his duty as investigating officer for this case, PW4 directed Sergeant Mohamad Ehsan bin Mohd Noorazam (PW3) to send the seized items, to the Department of Chemistry Malaysia, Kelantan on 12/09/2021 and receipt of such handover was acknowledged by Government Chemist, Nurul ‘Izzah binti Ab Rahman (PW2). As a proof of this, PW3 was handed one (1) copy of receipt that was in Court and was marked as P19.

PW2 in her statement in court and based on Department of Chemistry Malaysia’s Report: 21-FR-D-04472 (Exhibit P20) confirmed that she had examined 1 envelope marked as 'H1' which contained 5 blue plastic packets each containing 198 red tablets and 2 green tablets. As stated in PW2's testimony as well as P20, the analysis results are as the following: i. The total net weight of the red tablets is 93.42 grams containing 12.61 grams of methamphetamine; ii. The total net weight of the green tablets is 0.95 grams containing 0.12 grams of methamphetamine.

PW2 also confirmed that Methamphetamine is listed in the First Schedule of the Dangerous Drugs Act 1952. PRIMA FACIE CASE [19] 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 [20] Therefore, it is time for this Court to find answer to the issue raised in this appeal, namely whether the Accused should have been found guilty of the charge alleged against him on the basis that the Accused allegedly had possession of impugned drugs found during the raid.

This question, if answered in the negative, is a strong justification for this Court’s decision to acquit and discharge the Accused from charges laid against him.

To answer this question, it is of utmost importance for this Court to assess whether evidence presented is capable of proving the Accused possession of such dangerous drugs.

This requires a careful examination on the existence of the element of possession of dangerous drugs which in turn cannot be divorced from further discussion on who has control, custody and knowledge of such seized items to determine whether the Accused ought to be held criminally liable for charges brought against him.

In relation to Section 12(2)/Section 39A(1) 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 has possession of dangerous drugs (control or custody); ii. The Accused has knowledge of said dangerous drugs; iii. The impugned drugs are 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. [25] There is no need for a lengthy discussion on whether the impugned drugs are listed as dangerous drugs as defined in the Dangerous Drugs Act 1952. [26] This is because the parties have from the outset asserted that they do not intend to dispute the identity of seized items, rather the parties have chosen to focus more on efforts to unravel the question of whether the Accused in fact had possession of the dangerous drug as alleged by the Prosecution. [27] Upon close scrutiny, this Court finds no reason to discredit the evidence given by PW2 regarding dangerous drugs analysis done as indicated in Exhibit P20. There was no defect in PW2’s analysis and no 7 credible challenge was made on the identity of illicit drug. PW2 confirmed that said illicit drug was listed as dangerous drug in the First Schedule of the Dangerous Drugs Act 1952, to wit: Methamphetamine weighing 12.73 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. [28] 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. [29] 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 (See Ibrahim Mohamad & Anor v. Public Prosecutor [2011] 4 CLJ 113). In other words, possession is not made out merely because the Accused was situated so near to the impugned drug (See Romi Amora Amir v Public Prosecutor [2011] 1 CLJ 870). Possession is only proven when both physical element and mental element are present (See Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237). [30] 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. (See Leow Nghee Lim v Regina [1955] 1 LNS 53 & Public Prosecutor 8 v Hong Ah Huat [1970] 1 LNS 186). [31] 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) [32] 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 were under his control, to what extent did the Accused had 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. [33] 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.) [34] Upon close scrutiny of evidence as presented by the Prosecution, this Court opines that based on how the impugned drug was found, 9 supported by the testimonies of witnesses PW1 who was at the crime scene, it is safe to conclude that the Accused had knowledge, custody, and control of such impugned drug. [35] According to PW1, he testified that the drug was found in the right hand of the Accused. Clearly, this shows that the Appellant alone had control, custody, and possession of the evidence that was in his left hand. [36] Aside from that, considering that the impugned drug was found in the grasp of the Accused, this indicates that the Accused alone was capable of controlling the movement of his hand and what was in his grip. This clearly shows that the Accused had custody and control over the impugned in his left hand, given that in this situation, only the Accused had full authority to deal with the drug in exclusion of all other individuals. [37] Testimony from PW1 who was at the crime scene at the material time, under in the afternoon sun which allowed him to clearly see the Accused holding such impugned drug in his left hand. [38] This Court also finds PW1’s testimony as having been entirely consistent with investigation result as presented by the investigating officer of this case, PW4, showing that at the material time, only the Accused was present at the scene, seen holding the impugned drug in his left hand whilst sitting on the motorcycle. [39] Looking at such findings holistically, it is safe for this Court to conclude that the Accused is the only individual who can be said to have had possession and effective control over the dangerous drug at the material time as the only individual found with the seized items without any legitimate reason or reasonable explanation.

This evidence constitutes strong “presence” and “proximity”. The Accused was not merely present at the crime scene with the impugned drug cached away somewhere but the impugned drug was right under his nose. In my view, based on the above evidence, it is clear that there is “affirmative link” between the Accused and the impugned drug. (See Chong Joon Hong v Public Prosecutor [2018] 1 LNS 144) [41] This Court also finds that apart from the physical element mentioned above to prove possession, the mental element or the Accused's knowledge of the existence of illicit drug in his possession is also demonstrated through his conduct at the time of arrest. [42] This is based PW1’s testimony which stated that when he approached the Accused and introduced himself as a police officer, the Accused immediately fled the scene. The witness also stated that when he was chasing the Accused, there was also a struggle between PW1 and the Accused where the Defendant tried to free himself from PW1. The Defendant then got up while holding (1) white plastic package in the left hand of the complainant. However, the Accused was successfully apprehended by PW1. [43] This behaviour of the Accused during such raid as described above justifies this Court in making inferences against the Appellant under Section 8(2) of the Evidence Act 1950 as this conduct directly corresponded to him being bockaded by the police whilhe having in his possession a non negilible amount of impugned drug. [44] 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 since it has a direct bearing on the fact in issue as the drugs found were in his physical control. The explanation for his reaction must therefore be offered by the Accused himself as required by Section 9 of the Act in the form of facts necessary to rebut an inference suggested by the fact of him running away with impugned drug in his hand in the aftermath of him having sighted the police. However, as the Accused 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. (See Parlan Bin Dadeh v Public Prosecutor [2009] 1 CLJ 717) [45] Returning to the case beforehand, it is worthy to note that after a thorough examination of evidence produced, this Court is satisfied that no proper explanation was given to clarify why the Accused fled when he was raided alone, in the middle of the day, on the roadside while having possession of dangerous drug on his person. [46] The Accused should have provided an explanation regarding his behavior at the time when the raid was conducted on him to avoid the inference of knowledge about the existence of dangerous drug in his control and possession. Ultimately, this was not done hence giving rise to an inference that he had possession and knowledge regarding the existence of dangerous drugs at the material time. [47] In light of this, the inference drawn from evidence of conduct of the Accused will remain as he has not explained them pursuant to Section 9 of the Evidence Act 1950. 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.(See Amathevelli a/p Ramasamy v Public Prosecutor [2009] 2 MLJ 367) [48] After carefully examining the Notes of Proceeding, this Court finds that the inference regarding the knowledge arising from the actions of 12 the Appellant during the raid has not yet been disproven. As stated previously, the dangerous drug was found in the Accused's grasp. This fact gives rise to the inference that unless it can be successfully rebutted, the Accused ought to have knowledge of the dangerous drug found on him. [49] Based on both the elements of the conduct of the Accused 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.( See Khairuddin Hassan v Public Prosecutor [2010] 7 CLJ 129) [50] Upon examination of evidence as presented by the Prosecution, this Court finds that based on the facts of how the drug was found, supported by the testimony of PW1 who was present at the scene, it is safe to conclude that Accused had knowledge, custody, and control over the drug as alleged against him. SECTION 114 (g) OF THE EVIDENCE ACT 1950 [51] 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.

Given that the Accused had challenged the veracity of PW1’s account of the incident, it was argued that the Prosecution should have brought forward other witnesses who might be present together with PW1 during the raid to corroborate PW1’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.

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. (See Munusamy v Public Prosecutor [1987] 1 MLJ 492)

In this regard, this Court reiterates the trite law that it is the discretionary right of prosecutors to call any witnesses he or she deems fit to call. (See Public Prosecutor v Norashikin Bt Yusof & Anor [2019] 7 MLJ 277)

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 prosecutors are of the view that their present set of witnesses as presented in court is sufficient to prove their case.

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 14 against the Prosecution.

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.

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.

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

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.

Upon assessing the evidence presented at the end of prosecution's case, this Court finds that PW1 to PW4 are credible witnesses and their testimonies formed coherent evidentiary narrative without posing any material contradiction to each other’s’ testimonies.

This Court also finds no reason to disbelieve PW1 and PW4’s 15 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).

This is such so as, normally, this Court must accept the testimony provided by police witnesses unless the testimony given is so unreasonable that it raises doubt in the prosecution's case. (See Public Prosecutor v Mohamed Ali [1962] 28 MLJ 257)

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)

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.

In fact, the absence of other police officers other that PW1 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 16 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).

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, most particularly an individual by the name of Mohd Nor Faizul bin Ismail 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. (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)

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.

The Federal Court further concluded that if the Accused remained silent by not challenging the evidentiary narrative put forward by the 17 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.

Reverting to the case beforehand, this Court opines that The failure to call Mohd Nor Faizul bin Ismail does not lead to an adverse inference per Section 114(g) of the Evidence Act 1950.

Such is because no evidence was led to convince the Court that the Accused had taken necessary steps in order to help the police i.e. the investigating officer, PW4 to locate Mohd Nor Faizul bin Ismail, prior to this proceeding.

Nor was any evidence led to suggest that Mohd Nor Faizul bin Ismail’s name was divulged at the earliest possible opportunity to the investigating officer in the Accused’s Section 112 of the Criminal Procedure Code statement, so that Mohd Nor Faizul bin Ismail could be called to testify for the Accused’s innocence or to disprove evidentiary narrative laid by PW1 concerning such raid made against the Accused.

Moreover, Mohd Nor Faizul bin Ismail is not a material witness in prosecution’s case. Despite not having aforesaid individual in the prosecution’s lineup of witnesses who was called to testify under oath, this Court is of the view that no gap existes in the prosecution case.

It is worthy to recall that Mohd Nor Faizul bin Ismail was only arrested subsequent to the arrest of the Accused and the seizure of impugned drug from the Accused, and that Mohd Nor Faizul bin Ismail was not at the scene when the arrest was made by PW1, Thus it is safe to conclude that this individual has no direct connection to the case against the Accused.

Although the arrest of Mohd Nor Faizul bin Ismail was done allegedly based on information received by PW1 from the Accused, Mohd Nor Faizul bin Ismail had no significant connection or role in the arrest of the Accused. As proven earlier, the impugned drug was found in the left hand of the Accused, who was sitting on a motorcycle as the raid proceeded under the direction of PW1. No evidence was led to the effect of satisfactorily proving the Accused was merely a momentary carrier without having full knowledge of nature of impugned drug under his possession.For all intents and purposes, the Accused’s control, care and custody of the impugned drug was of direct possession in nature. As such, the presence or absence of Mohd Nor Faizul bin Ismail would be of no significance in proving or even disproving a case of illegal possesion of drug that was alleged against the Accused.

Hence this Court is of the view that there is 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 prosecution’s witnesses must remain intact. (See Shamim Reza bin Abdul Samad v Public Prosecutor [2009] 2 MLJ 506)

Along the same juncture, this Court could not bring itself to agree 19 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 PW1’s account of the incident.

Per trite law, it is understood that any allegation or suggestion made to the prosecution witnesses at the prosecution stage by the defence could not be said to have been a sufficiently constituted evidence but at best a mere allegation which is incapable of creating doubt against oral evidence which is based on observations made by the PW1 himself who was at the scene of the crime on the day of the arrest. (See Mirza Murtala v Public Prosecutor [2010] 4 CLJ 150 , Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No. 3) [1999] 2 MLJ 121, Emperor v Karimuddi Sheikh AIR [1932] Cal 373)

This is due to the fact that double presumption could only arise in instances whereby contradictory testimonies were presented by 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 [80] Pertaining to the movement of the exhibits from the time it was discovered by PW2 until the time it was produced to PW1 by PW4, this Court finds that there was no break in the chain of evidence. This Court is satisfied that impugned drug as tendered in this Court was the same impugned drug seized by PW1.

This Court could not bring itself to agree with the defence’s contention that an adverse inference should be casted upon 20 prosecution’s failure to do fingerprint test onto the impugned drug as where the identity of a culprit is in question or is required to be proved, fingerprint evidence will be of great significance and value.However, as there was evidence indicating the identity of the alleged offender i.e PW1’s oral testimony under oath that the impugned drug was found in the Accused’s firm grip, fingerprint evidence, therefore, assumed little value or significance. Hence, the absence of the fingerprint test does not ruin the prosecution’s case against the Accused. (See Public Prosecutor v Mansor Md. Rashid & Anor [1997] 1 CLJ 277)

Along the same tangent, I am also of the view that the failure to tender to the court search list issued at the crime scene did not lead to a break in the chain of evidence in the prosecution case as the absence of the search list prepared by PW 1 and the absence of the handing over list were not fatal to the identification of impugned drug and neither did it cause a break in the chain of evidence. The search list and handing over list were merely two documents in support of the prosecution’s case. In the event they were not tendered in court, it could not disqualify PW1 from giving oral evidence in regard to the movement of the incriminating drug. As long as the oral evidence given was coherent with the available evidence before this Court, the oral evidence would suffice to refute the claim of any break in the chain of evidence, despite the absence of documentary evidence in support of the oral evidence. (See Samuel Ikechukwu Umegolu (W/Nigeria) v Public Prosecutor [2019] MLJU 1313, Mohd Rosni bin Safie v Public Prosecutor and another appeal [2016] MLJU 802)

At the end of the prosecution’s case, upon analysing the evidence given by prosecution’s witnesses and the documents tendered into this Court together with the submissions submitted by both counsels, on a 21 maximum evaluation as guided in Mohd Radzi Abu Bakar [2006]1 CLJ 447, the Prosecution has succeeded in proving prima facie case against the Accused. Thus, the Accused is called to enter his defence.

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 [85] The Accused decided to give his sworn testimony from the witness box.

The Accused claimed that contrary to testimonies by PW1 and PW4, he was never arrested per First Instance Report.

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.

The Accused alleged that it was impossible for him to have in his left hand grasp the impugned drug for the sheer reason that at the material time as the raid was conducted against him, he was using the left hand to grip the motorcycle’s clutch.

The Accused testified that right after he was apprehended by PW1, he was kept inside a car along his friend named Eiwan.

The Accused claimed that no search list was issued against him at the crime scene.

It was further alleged that the arrest made against the Accused 22 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.

Only thereafter was the Accused handed over to PW4 the impugned drug purportedly seized form the Accused’s house for further investigation. BURDEN OF PROOF AT THE END OF THE DEFENCE CASE [93] 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).

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

(ii) of the Criminal Procedure Code. (See Balachandran v Public Prosecutor [2005] 1 CLJ 85) [95] “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] [96] From the plethora of legal authorities as stated above, it is understood that the defence has the burden, upon maximum evaluation, to show reasonable doubt in prosecution’s case to procure an order of discharge and acquittal. [97] At this stage, this Court's role is merely to assess whether the Accused has raised reasonable doubt, or in cases involving presumptions, whether the Accused has rebutted that presumption on the balance of probabilities. [98] In so doing, this Court is barred from revisitting the case which has been made at the prosecution stage. This Court is therefore only confined to considering whether the defence has succeeded in raising a reasonable doubt in the prosecution’s case (See Sha’ari A Samat v Public Prosecutor [2017] 8 MLJ 553, [2017] 6 CLJ 424, [2017] 1 AMR 600, [2017] 1 MLRH 283) THE ACCUSED’S DEFENCE IS MERELY THAT OF A BARE DENIAL [99] 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. (See Muhamad Radhi Bin Yaakob v Public Prosecutor [1991] 3 MLJ 169). [100] 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 PW1 is nothing but a bare denial, designed specifically for the sole reason of finding ways to exculpate the Accused from charge laid against him. [101] 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. (See D.A. Duncan v Public Prosecutor [1980] 2 MLJ 195). [102] 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. [103] This does not explain anything, most particularly why PW1 saw the Accused was holding in his left hand, a white plastic bag which was later found to have contained impugned drug as earlier established through the testimony of PW1 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. [104] This Court also finds no reason to disbelieve PW1 and PW4’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. [105] 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 Public Prosecutor v David Ackowuah Bonsu [1999] 2 CLJ 677 to reject the Accused’s claim of being victimized in the sinister game contrived against him. [106] This court also acknowledges that the Accused, through his lawyer, has suggested that it was impossible for the Accused to press the clutch of motorcycle while grasping the impugned drug. [107] However, during the defence cace, once again the Accused had failed to present any evidence to support his allegation that it was impossible for the Accused to press the clutch of motorcycle while grasping the impugned drug. Nonetheless, the defence presented no evidence to demonstrate how impossible this situation was. [108] This Court found 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 prosecution’s witnesses especially PW1 must remain intact. [109] On this point this court opines that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. (See Shamim Reza bin Abdul Samad v Public Prosecutor [2009] 2 MLJ 506, Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212) [110] In the face of this development, there is no reason why this Court should not believe the prosecution's version that the Accused was able to hold the impugned while pressing the clutch of the motorcycle, given the testimony of witness who was present at the scene and that of PW4 who investigated the case, indicating that the impugned drug was not of a large size and that the Accused was sighted of having under hi custody the impugned drug were still capable of controlling the motorcycle. [111] This is such so as in the absence of any evidence presented to support this allegation, it cannot be safely said that the Accused has successfully casted reasonable doubt against the prosecution's case. [112] This Court is ever cognisant that 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. (See Public Prosecutor v Saimin & Ors 1971] 2 MLJ 16) THE ACCUSED’S DEFENCE IS MERELY AN AFTERTHOUGHT [113] 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. [114] 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 contrary to testimonies by PW1 and PW4, he was never arrested per First Instance Report. The Accused alleged that it was impossible for him to have in his left hand grasp the impugned drug for the sheer reason that at the material time as the raid was conducted against him, he was using the left hand to grip the motorcycle’s clutch. The Accused testified that right after he was apprehended by PW1, he was kept inside a car along his friend named Eiwan.The Accused later claimed that no search list was issued against him at the crime scene. [115] 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. [116] 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. [117] In this situation, once again the Accused's denial does not clarify anything, especially why he was found holding dangerous drugs alone in the middle of the day. [118] Based on testimonies of witnesses presented up to the final stage of the defense case, it was patently clear that the Accused was the only individual present at the crime scene in the middle of the day when he was found holding a quantity of dangerous drugs as testified by prosecution witnesses. Given this turn of event, there is no doubt that in exclusion of the police raiding team, only the Accused was present during the raid, and no other individual can be linked to the impugned drug besides the Accused himself who definitely had knowledge of the existence of the illegal items in his direct possession. [119] 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). NO EVIDENCE IN REBUTTAL WAS PRESENTED ON ALLEGATION OF FRAMING UP THE ACCUSED [120] In any event, there is no evidence that the Accused was framed up by the police or any other persons. On the contrary, the evidence has clearly shown that the Accused was in possession of the drug that would exclude others from enjoyment of the same. (See Wan Amirul Mubin Wan Kamaruddin v Public Prosecutor [2017] 1 LNS 1478) [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 is 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 ( See Public Prosecutor v Ahmad Kamil Anuar [2020] MLJU 2236; [2020] 1 LNS 2109,Yusri Pialmi v Public Prosecutor [2010] 6 CLJ 878) [122] 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 (See Public Prosecutor v Abd. Latif bin Sakimin [2005] 1 LNS 265)

[123] 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 principle as set out in 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. [124] Hence, the Accused is ordered to put his mitigating factors before this Court pass any sentence. MITIGATING FACTORS [125] The Accused is of 25 years of age. He is unmarried. He sustains his family through his work as a cook with a meager minimum pay per month. [126] The Accused further pleaded for mercy due as his conviction would adversely affect livelihood of his family. [127] 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. [128] 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 [129] In responding to arguments by the Accused, the Prosecution pleaded for severe sentence against the Accused. [130] In passing 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 2021. It was argued that a too lenient sentence would not befit the time and cost it took for all parties to this proceeding. [131] The learned Deputy Public Prosecutor pointed out that a severe sentence must be warranted against the offenders to show the element of denunciation. [132] 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. [133] Furthermore, the learned Deputy Public Prosecutor further ventilated that harsher punishment is warranted due to rampancy of cases involving misuse of substances. [134] 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. [135] 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. [136] 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. [137] 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. [138] 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 [139] Given the mitigating and the aggravating factors put forward by both parties, the Accused was sentenced to an imprisonment term for a period of three (3) years from the date of conviction i.e., 21st July 2025 and whippping of four (4) strokes of rattan. The reasons for such sentence is as herein below. THE SENTENCING PRINCIPLES [140] 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. [141] This Court bears in mind that the utmost consideration is of public interest. Reference is made to Public Prosecutor v Idzham Bin Shafiee [2006] 4 MLJ 236. [142] In this case, this Court views that no misdirection has been made in terms of sentencing as sentence as meted out falls well within the ambit of prescribed punishment under section 39A(1) of the Dangerous Drugs Act 1952. (See Public Prosecutor v Sim Joo Liong [2014] 1 LNS 402). [143] Hence, this Court must make an exercise to balance between the public interest and the interest of the Accused. [144] It is the considered view of this Court that the ambit of 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. (See Tia Ah Leng v Public Prosecutor [2004] 4 MLJ 249) [145] 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 [2006] 1 MLJ 213) [146] This court also holds the view that 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.) [147] Having said that, this Court opines that such sentence is 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. [148] Moreover, consideration must also be given to the weight of drug found in the possession of the Accused which in this Court’s considered view is by no means a negligible amount of drug as this amount of drug will surely have deleterious effect on members of the public at large. (See Public Prosecutor v Ooi Teng Chian [2006] 1 MLJ 213) [149] This Court is of the opinion that this duration of imprisonment is most 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. The whole trial has taken time and cost of the parties involved. It is the view of this court that a person who is found guilty after a lengthy trial should be given a heftier 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) [150] 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. (See Pendakwa Raya v Abdul Halim Bin Ishak & Anor [2013] MLJU 821) This sentence would also serve as a testimony of the judicial system’s seriousness and vigilance against drug-related offence. [151] In a word, sentence as meted out is justified in lieu of facts and circumstances of this case and thus, passed in accordance with law. CONCLUSION [152] Based on the facts and circumstances as has been discussed above , this Court finds the Accused guilty and be convicted for the charge levelled against him. This Court so orders. Prepared by, ………………………………… (RAIS IMRAN BIN HAMID) Magistrate Magistrate Court Kota Bharu Kelantan Dated: 21st of July 2025 For the Prosecution: Muhammad Syamsul Ikhmal bin Ramli Ahmad Naabil bin Mohamed Asri (Deputy Public Prosecutor,Kelantan State Legal Advisor’s Office) For the Accused: Shaharuddin bin Mohamed (Shaharuddin Hidayu & Marwaliz)