cars stopped nearby him. A group of men then came and approached him. They kept calling him “Samuel”. They also pointed guns at him. The Appellant told them that he is not “Samuel”. They asked for his passport. They started to search his body but did not find anything. They also searched the Appellant’s car and did not find anything. [12] After that, a group of men placed the Appellant in one of their cars and drove to Pangsapuri Anggerik. They brought the Appellant to unit A- 06-22. When the Appellant reached the unit, the door and grille were already open. The Appellant was brought into the first room where he saw there were two (2) bags on the floor. They then told the Appellant that there were slabs of drugs believed to be cannabis inside those bags. They asked the Appellant several times “where is Samuel C. Ohaiekwe?”. The Appellant told them that he did not know who is Samuel. After saying that, they took 2 pieces of underwear from the room and wiped his face with it, and stuffed them into his mouth. They then told the Appellant that these drugs belonged to him. [13] The LJC found that the accused had failed to raise a reasonable doubt as to possession of the impugned drugs. The accused had also failed to rebut the presumption of possession under S 37(d) of the Dangerous Drugs Act, 1952. There was no reasonable doubt raised as to the possession of the impugned drugs. The LJC found that the prosecution had successfully proven their case beyond reasonable doubt pursuant to S 182A (2) of the Criminal Procedure Code against the accused. [14] For the first charge, the LJC sentenced the accused to death. With regard to the second charge, the LJC imposed a sentence of imprisonment for a term of ten years from the date of arrest. OUR DECISION [15] It was, first and foremost, impressed upon us by the Appellant that in the exercise of our appellate powers we ought to interfere with the finding of the LJC made at the trial in the High Court [‘HC’] as there were substantial and compelling reasons for doing so. [16] Our attention was rightly drawn to the leading Federal Court judgment of Dato’ Seri Anwar Ibrahim v PP & Another Appeal [2004] 3 CLJ 737 p. 752 where it was remarked that: This Court speaking through another eminent Judge, Abdul Hamid Mohamad FJC (as he then was) explained the role of the appellate court as follows:- “Clearly, an appellate court does not and should not put a brake and not going any further the moment it sees that the trial judge says that that is his finding of facts. It should go further and examine the evidence and circumstances under which the finding is made to see whether, to borrow the words of HT Ong (CJ Malaya) in Herchun Singh’s case (supra) “there are substantial and compelling reasons for disagreeing with the finding.” Otherwise, no judgement would ever be reversed on question of fact and the provision of S.87 CJA 1964 that an appeal may lie not only on a question of law but also on a question of fact or on a question of mixed fact and law would be meaningless.” [17] Also to Magendra Mohan v PP [2011] CLJ 805 p. 826, where Alauddin Mohd Sheriff, PCA (as he then was) pronounced as follows:- “[40] Normally, the appellate court does not interfere with the concurrent findings of fact of the courts below, in the absence of very special circumstances. But where the courts below ignore, overlook or commit errors of law apparent on the face of the record which results in serious and substantial miscarriage of justice to the accused, it is the duty of the appellate court to step in and correct the legally erroneous decision of the courts below.” [18] Our deliberation was focused on the issues raised by the Appellant in support of his contention that the LJC had wrongly found that custody and control of the dangerous drugs had been proven against the Appellant merely on the ground of proximity with the same. [19] It was contended that the error stemmed from the LJC’s failure to effectively apply S.182A of the Criminal Procedure Code [‘CPC’] as a result of only considering the evidence favourable to the prosecution [‘PP’] and neglecting to consider the evidence of the defence which had clearly raised a reasonable doubt in the PP’s case. [20] In order to prove its case, the PP relied primarily on the evidence of the Raiding Officer [‘PW. 7’] that at the material time the Appellant was found alone in an upstairs room in close proximity with 2 bags containing dangerous drugs. [21] We have noted the trite principle mere possession of a thing without the mental element or mens rea and knowledge of the nature of the thing will not incriminate the possession. Both the physical and mental elements must be fulfilled to establish possession in the criminal context. [See Saad bin Ibrahim v PP [1968] 1 MLJ 58; Chan Pean Leon v PP [1956] MLJ 237]. [22] The thrust of the Appellant’s defence that the LJC had purportedly failed to appreciate was that mere proximity with the dangerous drugs would not suffice to prove the core element of custody and control. Additionally, the LJC had apparently failed to consider essential evidence that the Appellant was at the material time not an owner or a tenant of the premises that was raided and he was not positively identified by either the owner [‘PW.6’] or the management of the apartment [‘PW.5’] as a tenant. Secondly, no house keys were seized from the Appellant or found at the premises as evident from the search list. Thirdly, the DNA analysis of clothing taken from the room showed that it was occupied by other persons. Fourthly, the KDN Detention Orders [‘Exs. D.63 and D.46’] on 2 other persons, Paschal Chika Okafor and Onyeka showed that they had engaged in drug storage and trafficking activities at the said premises. [23] In short, it was contended that on the evidence as a whole, the Appellant never had custody and control or knowledge of the drugs recovered. Hence, there was no basis to invoke the presumption of knowledge under S.37(d) of the Dangerous Drugs Act 1952 [‘DDA’]. Moreover, Appellant’s defence was that he was not occupying the premises at the time of arrest but was arrested at a place called South City Mall and brought to the premises by the raiding team. [24] A contrary position was taken by the Respondent [‘PP’] in opposing this appeal. Briefly, it is that the prosecution witnesses’ testimonies were credible and more than sufficient enabling the LJC to conclude that the Appellant had custody and control of the drug exhibits seized at the police raid. [25] Much reliance was placed on the evidence of PW.7 which the LJC evaluated and considered the same to be credible and reliable. We would touch on the salient aspects, of his version which the LJC found to be convincing and sufficient to satisfy the elements of custody and control against the Appellants. [26] On reaching the premises, PW.7 gained entry by force and found the 1st room upstairs to be open with the lights switched on. He entered and introduced himself as a police officer to the Appellant who was then alone in the room where he recovered 2 bags lying on the floor. The 2 bags which were left open contained substances which were then seized with the bags and eventually analysed to be dangerous drugs. The contents of the bags were visible to anyone entering the room. The other 2 rooms in the same house were also searched but neither room contained incriminating substances. [27] In PP v Abdul Rahman Akif [2007] 4 CLJ 337, the Federal Court (FC) adopted the classic definition of possession enunciated in Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237 and remarked, inter alia, as follows: “A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. To put it otherwise, there is a physical element and a mental elemental which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. Further down it was emphasized that: Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. “ [28] Under the above circumstances, particularly that the bags P.45 and P.46 were in the Appellant’s custody and control, the Respondent’s position was that the presumption of possession and knowledge under S.37(d), DDA, can be safely invoked against the Appellant which could only be rebutted via evidence to the contrary. Thus, that it could be presumed that he had knowledge of the type of drugs recovered. It was important to note that P.45 and P.46 were kept in open bags and visible to the naked eye as well as emitted a strong smell when PW.7 entered the room. It was cogent evidence that the Appellant must have had knowledge of the presence of the drug exhibits in the room under his custody and physical control at that time. [29] The issue before us was whether that LJC had come to a wrong finding that a prime facie case of custody and control had been made out against the Appellant when the only available evidence before the Court was that he was in the room when the drugs were discovered. It was highlighted to us by the Appellant that in his cautioned statement he had in fact been arrested at South City Mall and brought to the premises. [30] The Respondent, on the contrary, stressed that at the material time he had physical control of the drugs and relied on the Court of Appeal decision in Shagul Ameed Sheik Dawood v Public Prosecutor [2013] 2 MLJ 666 which adopted the principle enunciated in Warner v Metropolitan Police [1968] 2 ALL ER 356 at p 394 where Lord Wilberforce as stated follows:- “In all such cases, the starting point will be that the accused had physical control of something – a package, a bottle, a container – found to contain the substance. This is evidence – generally strong evidence – of possession. It calls for an explanation: the explanation will be heard and the jury must decide whether there is genuine ignorance of the presence of the substance, or such an acceptance of the package with all that it might contain, or with such opportunity to ascertain what it did contain or such guilty knowledge with regard to it as to make the statutory possession”. [31] In PP v Abdul Rahman bin Akif [2007] 4 CLJ 337, the FC (per Ariffin Zakaria, CJ) adopted the definition of possession as per the judgment of Lord Morris in Warner v Metropolitan Police Commissioner (supra) as follows: “If there is assent to the control of a thing, either after having the means of knowledge of what the thing is or contains or being unmindful whether there are means of knowledge or not, then ordinarily there will be possession. If there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains then, ordinarily, I would suppose that there would not be possession. If, however, someone deliberately assumes control of some package or container, then I would think that he is in possession of it. If he deliberately so assumes control knowing that it has contents, he would also be in possession of the contents. I cannot think that it would be rational to hold that someone who is in possession of a box which he knows to have things in it is in possession of the box but not in possession of the things in it. If he had been misinformed or misled as to the nature of the contents, or if he had made a wrong surmise as to them, it seems to me that he would nevertheless be in possession of them”. [32] It is, thus, well settled as to what possession means in law to incriminate a person in a given factual scenario. As to whether in a particular situation, a person could be said to have custody and control of an incriminating substance is fact based depending on the circumstances surrounding the recovery of the substance. It cannot be gainsaid that it is essentially a finding of fact by the trial court which the Appellate Court should be loathe to disturb if it is supported by relevant facts and evidence before the Court. [33] Having considered the various authorities on the term ‘possession’ and the evidence of the prosecution at the High Court which the LJC had referred to in arriving at his finding that a prime facie case had been proved in our judgment, the LJC had not plainly erred in his decision. In analysing the prosecution’s evidence, the LJC had duly evaluated the credibility of the main witnesses called by the PP relating to the discovery of the drug exhibits before concluding that their evidence was reliable and credible unless rebutted and contradicted. As the LJC had seen and heard these important witnesses on the central issue of custody and control, we find no strong and cogent reason to disturb the LJC’s assessment of the truth of their evidence at the preliminary or prime facie stage. [34] In particular, we are not convinced that the LJC’s view that the evidence of the crucial witness, the Raiding Officer [‘PW.7’] should prima facie be accepted as credible should be disturbed. His finding turned on the credibility of PW.7’s version and the narrative of the events leading to the raid and search at the premises. [35] We are not persuaded by the Appellant’s contention that had the LJC duly taken into account his exculpatory cautioned statement [Ex. D.65] and the evidence of the owner of the premises [‘PW.6’] and manager [‘PW.5’] that the tenant of the premises was one Nigerian named ‘Chiko’, he would reasonably have arrived at a contrary finding on the issue of custody and control. Our considered view is that there was reliable and sufficient evidence on the elements of possession for the defence to be called by recourse to the presumption of knowledge under S.37(d), DDA which was applicable to the facts until proven otherwise. We have in our analysis not glossed over the fact that Ex.D65 which was tendered during the PP’s case contains the thrust of the Appellant’s version that his apprehension and arrest took place outside the premises where no drugs were found on his person. Despite that, D.65 alone was not ground to reject outright the version given by PW.7 as to the place of recovery of the drug exhibits. The trial Court must, however, have in mind that the basic facts of the defence had been disclosed at a very early stage vide D.65 [See Prasit Punyang v PP [2014] 7 CLJ 392]. It was the duty of the trial Court to consider the contents of D.65 to appreciate the defence of the Appellant lest it may amount to a non-direction warranting appellate intervention [See Shreedharan Thankamani v PP [2016] 1 LNS 63]. [36] We will now deliberate upon the next core issue for determination, i.e., whether the LJC had failed to act in accordance with S.182 CPC purportedly for failure to take into consideration all the evidence in its totality before arriving at his decision at the conclusion of the trial and the defence case. [37] The vital question that called for our determination was whether the LJC had in the final analysis discharged his bounden duty to consider adequately all the evidence adduced at the trial in compliance with the mandatory requirement of S.182A(1) of the CPC in the process of making a finding as to whether the PP had proved its case beyond any reasonable doubt. In this regard, it is incumbent on us to scrutinise the reasons given by the LJC for his finding at the conclusion of the trial and review the facts and evidence in support of the LJC’s finding in determining whether the finding was plainly wrong or devoid of basis as contended by the Appellant. [38] In evaluating the Defence evidence, the LJC, as highlighted by the Respondent, arrived at the following findings: 1) There was a clear material difference between the contents of the Appellant’s cautioned statement [D.65] and his witness statement [PSD.1]. The names of Chineke Chinedu Stephen [DW.2], Samuel C.Ohaiekwe [‘Samuel’] and Onyeka Frank [‘Onyeka’] only arose in PSD. 1 and not mentioned at all in D.65 which was recorded just 2 days after the Appellant’s arrest whereas PSD.1 which was made more than 2 years after the incident. Hence, as a result of the alleged involvement of these persons not being disclosed to the IO [‘PW.8’] he was not in a position to carry out any investigation as to their involvement in relation to the drug exhibits. 2) The Appellant’s alibi defence to the effect that he was not at the scene when the raid and arrest took place was baseless as it was devoid of any evidence in support from witnesses. More importantly, no notice of alibi had been served on the PP in compliance with the mandatory requirement of S.402A, CPC. [39] In essence, the LJC held the view that the defence was no more than a bare denial, particularly the defence of alibi, which was inherently improbable and went against the weight of evidence led by the PP. [40] It was correctly noted by the LJC that the hub of the defence contention was that there was a material gap in the PP’s case that created a reasonable doubt by reason of the non-calling of 2 material witnesses, namely, the said Paschal and Onyeka, both of whom bore the same surname Okafor. He duly considered the Appellant’s contention that S.114(g), Evidence Act ought to be invoked for the said non-calling but declined to do so on account of the circumstances surrounding the recovery of the drugs which we have adverted to. According to the LJC, the narrative of the PP’s case was complete without them being called and they were not necessary witnesses to complete the narrative. Neither were they present at the scene at or around the material time which we accept is an important factor. Nor did their non-calling leave a gap in the PP’s narrative. [41] We appreciate the trite principle that the onus is on the PP to exclude the possibility of access by others to the place of discovery. [See Abdullah Zawawi bin Yusoff v PP [1993] 2 MLJ 1]. Be that as it may, it is trite law that the duty on the PP is only to produce in Court all witnesses necessary for the unfolding of the narrative. Besides that, the PP has the discretion as to which witness to call. In the landmark case of Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433, Edgar Joseph Jr, FCJ speaking for the FC remarked: “On the other hand, it is clear law that the prosecution must have in court all witnesses from whom statements have been taken, but they have a discretion whether to call them or not. (See Teh Lee Tong v PP [1956] MLJ 194). That discretion, however, must be exercised having regard in the interests of justice, which includes being fair to the accused (per Lord Parker CJ in R v Oliva [1965] 3 All ER 116 at p 122; [1965], 2 WLR 1028 at p 1035), and to call witnesses essential to the unfolding of the narrative on which the prosecution case is based, whether the effect of their testimony is for or against the prosecution (per Lord Roche in the Ceylon Privy Council case of Seneviratne v R [1936] 3 All ER 36 at p 49, applied in R v Nugent [1977] 3 All ER 662; [1977] 1 WLR 789” [42] Equally important is the established principle that S.114(g), of the Evidence Act 1950 should only be invoked, to draw an adverse inference where there is a deliberate suppression of evidence resulting from material witnesses not being called. The leading authority in point is Munusamy v Public Prosecutor P [1987] 1 MLJ 492, where Mohamed Azmi, SCJ speaking for the Supreme Court held that: “It is essential to appreciate the scope of section 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 an only an important and material witness to the case.” [43] As correctly taken into account by the LJC, a crucial factor was that the Appellant failed to disclose complete personal particulars of the said Onyeka Frank after arrest, especially his whereabouts and contact details to enable any kind of investigation to be carried out. Without any disclosure as to the role purportedly played by Onyeka in regard to the drugs, the Appellant’s assertion on the former amounted to a mere bare assertion. [Tobechi Chinonso Madu v Public Prosecutor [2015] 1 LNS 57 FC]. [44] We share the LJC’s view that no duty is cast on the Respondent to produce Onyeka and the other aforementioned witnesses whose role, particulars and whereabouts had never been disclosed during the investigation process. Hence, the assertion that he was a material witness on the issue pertaining to the identity of the actual drug trafficker was correctly found to be baseless. [45] In the concluding part of the Appellant’s submission before us, his counsel impressed upon us that the LJC’s reasons for dismissing his version as not being credible was a grave misdirection by way of non-direction for not exercising a maximum evaluation of the evidence in totality as required under S.182 A, CPC. Amongst others, the LJC found the Appellant’s evidence in Court an embellishment of his cautioned unresolved statement D.65 on material facts. As we have emphasized earlier, the assessment of the credibility of a witness is within the purview of the trial Judge and material contradictions in his evidence that remained unresolved is an important consideration which the LJC rightly took into account. We acknowledge that discrepancies in the testimonies of witnesses are bound to occur for a variety of reasons. [See Thangaraj Manirajee v PP [2014] 1 LNS 594]. However, from our perusal of the LJC’s analysis and evaluation of the evidence of both the prosecution and the defence witnesses, we are not inclined to agree with the submission that the LJC had mechanically and casually decided the issue of the credibility of the respective witnesses without adequate deliberation and analysis. [46] Lastly, in our judgment, the LJC had sufficiently and judicially appreciated and weighed the totality of the evidence in accordance with settled principles before concluding that the guilt of the Appellant as charged had been proven beyond any reasonable doubt. Importantly, the contention that the LJC had failed to carry out a maximum evaluation of all the evidence as mandated in law was wholly without basis or substance. On the contrary, the LJC had meticulously and sufficiently analysed and evaluated all the evidence before the court before eventually finding at the conclusion of trial that the Appellant had failed to raise any reasonable doubt in the prosecution case. CONCLUSION [47] By reason of the grounds as elaborated above, we found no merits in law or fact in this appeal to warrant interference with the finding and decision of the LJC of the High Court after having conducted a full trial on the charges preferred against the Appellant. Our considered view is that the finding of guilt and conviction recorded on the Appellant on both charges is safe and ought not to be disturbed. We, accordingly dismissed this appeal and affirmed the decision of the High Court on conviction and sentence. Dated: 9 November 2022 - sgd - GUNALAN A/L MUNIANDY Judge Court of Appeal Putrajaya COUNSEL FOR THE APPELLANT: Afifuddin bin Ahmad Hafifi (Together with Zulaikha Aini Mohamed Khair Johari) [Messrs Salehuddin Saidin & Associates] COUNSEL FOR THE RESPONDET: Nurul Farhana Binti Khalid (Together with Dhiya Syazwani Izyan binti Mohd Akhir) [Attorney General's Chambers]