Joseph A/L Subramaniam v Pendakwa Raya (A-05(M)-234-04/2018)

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1 DALAM MAHKAMAH RAYUAN MALAYSIA [BIDANGKUASA RAYUAN] RAYUAN JENAYAH NO: A-05(M)-234-04/2018 ANTARA JOSEPH A/L SUBRAMANIAM ...PERAYU (NO. K/P: 780507-08-6385) DAN PENDAKWA RAYA …RESPONDEN [Dalam Perkara Perbicaraan Jenayah No: AB-45ª-09-09/2017 Dalam Mahkamah Tinggi Taiping Dalam Negeri Perak Darul Ridzuan Antara Pendakwa Raya Dan Joseph a/l Subramaniam] 2 CORAM: ABDUL RAHMAN SEBLI, JCA ZABARIAH MOHD YUSOF, JCA LAU BEE LAN, JCA JUDGMENT [1] The appellant was charged under section 39B (1) (a) of the Dangerous Drugs Act 1952 (DDA) as follows: “Bahawa kamu pada 31.01.2017, jam lebih kurang 11.00 malam bertempat di hadapan Kuil Hindu Om Sakti Sivananda Muniswarar Alayam, Jalan Simpang Kampung Dew Arah Simpang, Taiping di dalam Daerah Larut Matang, di dalam Negeri Perak Darul Ridzuan telah mengedar dadah berbahaya iaitu sejumlah berat 24.2 gram (23.3 gram Heroin dan 0.9 Monoacetylmorphines) dan dengan itu kamu telah melakukan satu kesalahan dibawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 yang boleh dihukum dibawah Seksyen 39B (2) Akta yang sama.” [2] The learned High Court Judge found the appellant guilty as charged and sentenced to death by hanging. [3] Aggrieved with the decision of the learned High Court Judge, the appellant filed this appeal which is before us. After having read the written submissions as well as hearing oral arguments on the issues raised, unanimously, we found that the learned High Court Judge did not err in his 3 findings of guilt against the appellant. We therefore dismissed the appeal and affirmed the conviction and sentence. [4] Herein below are our reasons for deciding so. BACKGROUND: [5] At or around 2.00 p.m. on 31.1.2017, the Deputy Head of the Narcotics Investigation Department, ACP Abdul Latiff bin Mehat (SP 2) at Ibu Pejabat Polis Kontinjen Perak (IPK) received information of drug activities which were to be transacted by one individual by the name of “Joseph” at or around the Traffic Light area at Simpang 4, Simpang Halt, Kampong Dew, Taiping, Perak that night. [6] A raiding team was subsequently formed, headed towards Ibu Pejabat Polis Daerah (IPD) Taiping, in 3 cars (a Mitsubishi Triton, Proton Waja, Proton Preve) and 2 motorcycles. [7] At IPD Taiping, SP 2 contacted ASP Wan Rosli, Ketua Bahagian Siasatan Narkotik to provide a team for assistance. [8] At 6.30 pm., SP 2 briefed his team which included the team from IPD Taiping. The team was divided into 4 groups. At 8.00 p.m. the groups then proceeded to the place where the drug activities were to happen. They arrived at the place at 8.30 p.m. 4 [9] At 10.50 p.m., SP 2 saw a motorcycle ridden by an Indian male coming out from the direction of a workshop and heading towards the traffic light junction. The said motorcycle stopped by the road side in front of the Kuil Om Sakti Sivananda Muniswarar Alayam (Kuil). This Indian male was identified as the target by the team. [10] At 11.00 p.m. SP 2 walked over to the said Indian male. SP 2 saw that the Indian male was holding 1 black plastic bag (P12A) in his right hand. [11] SP 2 introduced himself as police. The said Indian male was shocked and stunned and fled. However, he was detained by SP 2 and his team. The said Indian male was identified as the appellant. [12] SP 2 seized the black plastic bag, P12A and found that it contained 3 transparent plastic packets filled with “serbuk dan ketulan” substances suspected to be heroine. [13] The raiding team then went inside the workshop to inspect the premise, where the appellant was seen coming from. Upon examination, the raiding team found that there were 6 Indian males and 1 Chinese male. The 7 of them were arrested to assist in investigation and the motorcycle which was ridden by the appellant were brought to IPD Taiping. [14] At IPD Taiping, SP 2 handed over the appellant and the seized items to the investigating officer, SP 5. 5 [15] SP 5 had instructed that dusting of finger print to be done on the seized items, but it failed to produce any positive result. SP 5 kept the seized items in his cupboard at his office. [16] On 1.2.2017 at 12.20 noon, SP 5 directed that photographs be taken of the seized items and on 3.2.2017, the “serbuk dan ketulan” substance were sent to the Chemist, SP 1 for analysis. SP 1 upon analysis found that the substance are Heroine and Monoacetylmorphines which are listed under the 1st Schedule of the DDA. [17] As for the motorcycle which was used by the appellant on the material date, investigations revealed that the registered owner is SP 4. SP 4 said that at the material time, the said motorcycle was used by his son, Rain Kumar who works as a Hospital Attendant at Taiping Hospital. The Findings of the learned High Court Judge At the prosecution’s stage: [18] The evidence of SP 1, the Chemist confirmed that the substance seized was 23.3 gram heroine and 0.9 gram monoacetylmorphines. The learned High Court Judge was satisfied that the evidence of SP 1 was not challenged in material particulars (Paragraph 32 of the grounds). In fact in the learned High Court Judge’s grounds at paragraph 32, the learned High Court Judge said that: 6 “Dalam hujahan bertulis dan lisan peguambela OKT di akhir kes pendakwaan tiada sebarang hujahan dikemukakan mengenai keterangan yang diberikan oleh SP 1….” Neither do the defence raise this as an issue in his arguments before us. [19] On the second element, i.e. whether the drugs were in custody and control of the appellant, the learned High Court Judge relied on the evidence of SP 2, where SP 2 saw the appellant had stopped the motorcycle that he rode and was standing beside the said motorcycle whilst holding the black plastic bag, P12A which contained the drugs. The black plastic bag was not tied at its handle and the appellant was alone at that time. The learned High Court Judge made an irresistible inference that the appellant had knowledge of the drugs in the plastic which he was holding. [20] The defence counsel suggested that the plastic bag was found in the basket of the motorcycle however it was denied and disagreed by the prosecution witnesses. [21] The learned High Court Judge found that the conduct of the appellant when he was arrested, was one of looking shocked and stunned. He even attempted to run, giving the inference that the appellant had knowledge that the substance that he was carrying were drugs. [22] The defence suggested that there is no prima facie case established by the prosecution due to the failure of the prosecution to call Rain Kumar as the defence counsel had suggested and that the drugs were found in the 7 carrier basket of the motorcycle. However, it was the finding of the learned High Court Judge that the failure of the prosecution to call Rain Kumar is irrelevant to the case of the prosecution. This is because it was denied by SP 2 and SP 3 that the drugs were found in the basket of the motorcycle. [23] The learned High Court Judge found that the evidence of SP 2 and SP 3 is credible and inherently probable and there was no reason for SP 2 and SP 3 to frame up the appellant. Hence there is no basis for the trial Court to invoke adverse inference under section 114 (g) of the Evidence Act 1950. [24] At the end of the prosecution’s case, the learned High Court Judge found that the element of possession coupled with knowledge of the illicit drugs had been proven against the appellant without the need for him to invoke the presumption under section 37(d) of the DDA. Hence the learned High Court Judge found that the prosecution had proved possession. [25] On the third element, whether the appellant was “trafficking” in the drugs: The evidence of SP 1 that the total weight of the substance that she analysed was 24.2.gram. This constitutes over and above the statutory limit and therefore the learned High Court Judge found that the accused was deemed “trafficking” in the said drugs under section 37(da)(iii a) of the DDA. [26] Given the aforesaid, the learned High Court Judge found that there was a prima facie case and ordered that defence be called. 8 At the defence stage: [27] The appellant chose to give his defence on oath. According to the appellant, at 11.00 p.m. on the material date, he was present in front of the workshop. While he was standing there, the appellant saw a group of persons examining a motorcycle and he saw them took something out from the carrier basket of the said motorcycle. The appellant said that he did not know what was the thing that they took from the carrier basket of the motorcycle. [28] Subsequently, a man approached the appellant and introduced himself as police. The police asked the appellant what he was doing there. The appellant replied that he just arrived at that place and was waiting for a friend. The police then asked him about the motorcycle and he answered that he has no knowledge as to who it belonged to. [29] The appellant was then brought into the workshop where the police found 7 other men. All were subsequently arrested by the police. [30] The appellant and the 7 other men denied that they had anything to do with the drugs which were found in the carrier basket of the motorcycle. [31] The appellant denied that the police detained him when he was holding the black plastic packet. [32] The learned High Court Judge found that the defence were a mere denial. 9 [33] When SP 2 and SP 3 were cross examined, the defence counsel had never suggested that the appellant was asked why was he there and that the appellant had answered that he was waiting for a friend. The assertion of these facts only arose at the defence case. Hence it was the finding of the learned High Court Judge that this defence is an afterthought. [34] The learned High Court Judge found that the evidence of SP 2 was supported by the evidence of SP 3 and there is no reason for SP 2 and SP 3 to invent stories to frame up the appellant. [35] SP 2 only received information that there was to be a drug transaction at the material time and place by someone by the name of “Joseph”. SP 2 had no knowledge that this “Joseph” was the appellant until the appellant appeared at the scene of the incident. [36] The learned High Court Judge also found that the evidence of the appellant was inherently improbable as the appellant never explained how he came to be at the place of the incident, whether he came by foot or being sent by someone else? The evidence of the appellant only relates to the fact that he was at the scene. [37] Further, there was no information provided by the appellant as to who was the friend that the appellant was waiting for, at the material time. [38] Given the aforesaid, the learned High Court Judge found that the appellant had failed to cast a reasonable doubt on the case for the prosecution. The appellant had also failed to rebut the presumption of 10 trafficking under section 37(da) of the DDA. The learned High Court Judge also found that a case beyond reasonable doubt had been made out against the appellant on the offence with which he was charged. The appellant was accordingly convicted and sentenced to death. OUR FINDINGS: [39] The defence raised the following issues in his submissions:

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(ii) the learned High Court Judge erred in law and facts when he failed to invoke adverse inference under section 114 (g) of the Evidence Act 1950 against the prosecution for failure to produce the 7 suspects who were arrested inside the workshop;

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(iii) the learned High Court Judge erred when he failed to invoke presumption of knowledge under section 37 (d) of the DDA but made finding of actual possession against the appellant on the possession of the drugs;

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(iv) the learned High Court Judge erred in his finding when he decided that the defence was a bare denial which was incapable of raising a reasonable doubt on the prosecution’s case; 11

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(vi) the failure of the prosecution to produce the motorcycle, PDS 3129, the key to the motorcycle and the helmet which were seized by SP 2, was never considered by the learned High Court Judge. Whether there were contradictions between the evidence of SP 2 and SP 3: [40] The appellant alleged that there were contradictions in the evidence of two of the prosecution’s crucial and main witnesses i.e. SP 2 and SP 3. Their evidence raised doubt as to whether the police merely conducted body search of those 7 people found in the workshop or that the police searched the premise of the workshop. [41] Our perusal of the evidence of SP 2 and SP 3 did not disclose any discrepancies as alleged. For clarity we reproduced the relevant evidence of SP 2 and SP 3 which forms the basis of the contention by the appellant. The evidence of SP 2 in examination in chief at page 30 of RA Vol 2 said that: “Seterusnya, saya bersama pasukan serbuan telah buat pemeriksaan dan serbuan lanjut di sebuah bengkel atau sebuah kedai yang menjual kayu terpakai.” 12 With regards to the same matter, SP 2 in cross examination at page 42 of RA Vol 2 said that: “Lanjutan dari tangkapan OKT saya telah buat serbuan di dalam kawasan bengkel itu kerana daripada pemerhatian saya dan pasukan serbuan didapati OKT keluar melalui kawasan tersebut.” The evidence of SP 3 in examination in chief, at page 64 of RA Vol 2 said: “Semasa serbuan dijalankan telah tahan (6) lelaki india dan (1) lelaki cina di dalam premis tersebut. Pemeriksaan fizikal telah dibuat dan juga pemeriksaan ke atas premis tersebut tidak menjumpai apa-apa barang salah.” Further at page 69 of the same RA disclosed that SP 3 said: “S: Boleh jelaskan kepada Mahkamah kenapa serbuan dilakukan di premis tersebut? J: Pengadu telah membuat keputusan untuk buat serbuan di Premis tersebut memandangkan semasa pemerhatian dijalankan suspek keluar daripada arah premis tersebut dengan memiliki motorsikal.” At page 73 of the RA Vol 2 SP 3 said: “S: Cuba lihat lapuran tangkapan ke atas 7 orang di dalam bengkel tersebut-D15 Ada butir-butir tangkapan di dalam lapuran itu. J: Betul. S: cuba lihat lapuran polis-pohon membaca laporan polis tersebut. Bersangkut repot terhadap OKT serbuan dibuat ke atas bengkel itu. Pemeriksaan dibuat di atas tubuh suspek sahaja. 13 J: Setuju.” It was further submitted by the defence that the evidence from these 2 witnesses, SP 2 and SP 3 disclosed that only physical examination of the 7 suspects were done inside the workshop and there was no attempt to search the premises and there was also no evidence led as to how big or what was the size of the workshop and the owner of the workshop was not traced nor called to testify. [42] Our view on the alleged contradictions are as follows. [43] A perusal of the police report in D15 (page 29 of the RA Vol 3) does not disclose the contents as was submitted by the defence, namely that only a physical search on the body of the 7 persons found in the workshop was done but no search was done of the workshop. The contents of D15 read as follows: “….Sampai di tempat kejadian saya kenalkan diri polis dengan menunjukkan kad kuasa polis dan tahan (6) lelaki India dan (1) lelaki cina yang berada di dalam premis tersebut. Pemeriksaan dijalankan ke atas tubuh badan suspek tiada menjumpai apa-apa barang yang menyalahi undang-undang….”, does not indicate that only a physical search of the body of the 7 persons was done but not the premise of the workshop. Hence the evidence of SP 3 page 73 of the RA Vol 2 is not correct when he read the police report D15. Nowhere in D15 was it ever stated that “Pemeriksaan dibuat di atas tubuh suspek sahaja”. 14 [44] In any event, police reports normally do not contain every minute details of the facts, although crucial and material facts must be stated. The issue here is whether the failure to state examination of the premise in the police report is fatal to the case of the prosecution. Our view is that, it is not. The police report of D15 merely concentrates as to what was found after a physical search on the 7 persons. In any event, the facts as adduced from the evidence was that the drugs were found not in the workshop premise but with the appellant when he was seen standing in front of the Kuil. Hence whether the workshop premise was search or not is not a crucial matter. Such failure to state in the police report, is not fatal to the charge in question, as the workshop premise is not relevant to the charge in question. [45] Therefore, from the evidence of SP 2 and SP 3 as highlighted, we do not see any contradictions here. Even if there is (which we found there isn’t), it is of no consequence to the prosecution’s case. [46] The defence referred us to the case of Chan King Yu v PP [2009] 1 CLJ 601, at page 602 and where at the end of the case the Federal Court held that the defence had succeeded in raising a reasonable doubt on the prosecution’s case, given the infirmities and the glaring discrepancies in the prosecution’s case. However, we found that the facts in Chan King Yau can be distinguished on its facts. In that case, there were independent evidence that the police had earlier entered the hotel room which was occupied by the accused, without the presence of the accused. The police subsequently staged a scene by creating an activity which the prosecution relied on in order to prove knowledge of the drugs so as to prove possession against the accused. It was the prosecution’s case that when the police entered the 15 accused’s room and conducted a search they recovered incriminating items placed in the said room and bathroom. The accused in his defence and evidence claimed that the police ambush party had planted the evidence of the incriminating items against him. There was justification to find that the raiding party had actually entered the accused’s room earlier in the absence of the accused. The learned High Court Judge failed to consider these glaring evidence, which came from DW 2 and DW 3 who were independent witnesses (hotel staffs) as compared to the prosecution witnesses. The learned High Court Judge also failed to give his reasons for rejecting the evidence of DW 2 and DW 3. [47] Compared to the facts as in our present case, there were overwhelming evidence that the drugs were found when the appellant was holding it in his hand and that he was alone at that time. There is no evidence of the drugs being planted nor were there evidence of any framing up of the appellant as in Chan King Yau. Thus the learned High Court Judge made findings of facts that : “Keterangan SP 2 dan SP 3 bukanlah satu keterangan yang tidak munasabah. Apatah lagi tiada keterangan yang menunjukkan bahawa mereka berdua mengenali OKT sebelum hari kejadian dan bermusuhan. Oleh itu, Mahkamah ini mendapati tiada sebab untuk mereka menganiyai OKT….” (page 35 paragraph 42 grounds of judgment at RA Jilid 1) 16 [48] The learned High Court Judge was not plainly wrong when he made findings that the evidence of SP 2 and SP 3 were not inherently incredible. SP 2 and SP 3 did not know the appellant before the arrest and there was no reason for both of them to frame up the appellant. There was no suggestion by the defence that the drugs were planted in the carrier basket of the motorcycle nor was it ever shown any evidence that the police harboured any motive to implicate the appellant falsely. Whether adverse inference under section 114 (g) of the Evidence Act 1950 ought to be invoked against the prosecution for failure:

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(ii) the bag containing the drugs was not tied nor closed, and that upon opening the plastic bag one can see the contents of the bag immediately;

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(iii) SP 2 when he said that when the appellant was arrested, the appellant was “terkejut, gelisah, tergamam, gelisah dan juga cuba melarikan diri” (page 42 RA Jilid 2), and from these evidence, the learned High Court Judge inferred knowledge on the appellant of the drugs. [59] The crucial issue in this appeal is whether the learned High Court Judge was entitled to come to a finding that the appellant had knowledge of the drugs premised on the surrounding facts and circumstances. In this context, the learned High Court Judge relied on the judgment of Ariffin Zakaria CJ (as he then was), in the case of PP v Abdul Rahman Akif, supra, which held: “In Tan Ah Tee , Wee Chong Jin CJ, delivering the judgment of the court, said [1978-1979] SLR 211 at pp 217-218 ; [1980] 1 MLJ 49 at p 52): Even if there were no statutory presumptions available to the prosecution, once the prosecution had proved the fact of physical control or possession of the plastic bag and the circumstances in which this was acquired by and remained with the second appellant, the trial judges would be justified in finding that she had possession of the contents of the plastic bag within the meaning of the Act unless the trial judges accepted or which raised a doubt in their minds that she had possession of the contents within the meaning of the Act. ……… 21 [21] In the same case Lord Morris answered the question in the following manner: ……….If there is some momentary custody of a thing without the 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 inside in it….” [60] The learned High Court Judge stated in his judgment as to the conduct of the appellant when he was confronted by the police whilst he was holding the bag P12A (paragraphs 39-41 of the grounds). Premised on section 8 (2) of the Evidence Act 1950, this conduct by the appellant is relevant to the charge in question and this was considered by the learned High Court Judge. The learned High Court Judge was correct in accepting such evidence. For clarity we reproduced section 8 (2) of the same which provides: “8(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” Hence the burden lies on the appellant to explain his conduct as was prescribed under section 9 of the same which provides: 22 “Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant so far as they are necessary for that purpose.” We found the appellant failed to explain, either via suggestions through cross examination of the prosecution’s witnesses or in his defence as to why he acted the way he did, when he was confronted with the drugs in his hand. For this, we found support in the Federal Court case of Parlan Dadeh v PP [2009] 1 CLJ 717, at page 746 where the Federal Court held as follows: “[36] The law relating to evidence of conduct is thus patent. If there is no evidence to show that the conduct is influenced by any fact in issue or relevant fact as required by s. 8 then it is not admissible as it would then be an equivocal act justifying inferences favourable to the accused being drawn. If it satisfies the requirement of s. 8 it is admissible. It must be observed that the degree of proof required to establish evidence of conduct would depend on the nature of the conduct. Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like an accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required. Once admitted the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it inadmissible. The onus is on the accused to explain his conduct pursuant to s. 9. Such explanation must not be in their barest form, but with a reasonable fullness of detail and circumstances (see R v Stephenson [1904] 68 JP 524). The onus may be discarded even in the course of the case for the prosecution, for example, by way of cross 23 examination of relevant witnesses. If nor so done, it can be discharged only at the defence stage.” Whether the learned High Court Judge erred in his finding when he decided that the defence was a bare denial which was incapable of raising a reasonable doubt on the prosecution’s case: [61] A perusal of the grounds of judgment of the learned High Court Judge from paragraphs 60-65, disclosed that the learned High Court Judge did not dismiss outright the defence of the appellant without giving due consideration. He did consider the defence of the appellant in depth and evaluated it with the evidence of the prosecution’s witnesses. [62] The learned High Court Judge considered the claim by the appellant that he had never carried any package of drugs which were seized by the police. The appellant alleged that the police forced him and the 7 persons who were found in the workshop to admit that the drugs were theirs. The learned High Court Judge found this defence by the appellant as a mere denial. [63] Further the learned High Court Judge went on to consider the defence of the appellant that he was asked by the police as to why he was at the scene of the crime and his reply was that he was waiting for a friend. The learned High Court Judge found that these were afterthoughts as these facts were never suggested nor put to the prosecution’s witnesses during cross examination by the defence counsel. The learned High Court Judge held that the evidence of the appellant must be considered together with the evidence 24 of SP 2 and SP3 who saw the appellant riding the motorcycle alone and stopped at the side of the road near the traffic light. They then saw the appellant alighted from the motorcycle holding the plastic bag, P12A in his right hand (refer to paragraph 62 of the grounds of the learned High Court Judge). [64] The learned High Court Judge also found that the defence was an afterthought. He reasoned it out when he considered the evidence of SP 2 and SP 3 when he was making a finding of a prima facie case that their evidence established that the appellant had possession of the drugs which is the subject of the charge. The learned High Court Judge has no reason to doubt the evidence nor the credibility of SP 2 and SP3. He referred to PP v Mohamed Ali [1962] 1 MLJ 257 and found that the evidence of SP 2 and SP 3 is not inherently incredible. Besides, there is nothing shown that SP 2 and SP 3 has a vengeance against the appellant as before the date of the arrest both of them did not know the appellant at all. Therefore based on the evidence before the learned High Court Judge it was his finding that it is not possible for SP 2 and SP3 to invent a story to implicate the appellant with a baseless charge. The learned High Court Judge also said that SP 2 earlier had received information of some drug trafficking activities was about to happen at the place and time by one bearing the name of “Joseph”. SP 2 did not know who Joseph was and neither was SP 2 in the know that “Joseph” was the appellant, until the fateful date (Paragraph 63 of the grounds). [65] Further the learned High Court Judge also made findings that “Tindakan SP 2 mendapat bantuan daripada anggota narkotik IPD Taiping yang bertindak sebagai penunjuk arah bagi setiap kumpulan yang dibentuk 25 untuk mengenal pasti sasaran adalah bukti SP 2 tidak mengenali OKT sebelum kejadian”. [66] It was also the finding of the learned High Court Judge that the defence of the appellant is improbable when the appellant when asked, could not remember where he came from and that whether he came alone to the place where he was arrested. In fact, there was no evidence from the appellant to show how the appellant came to the place of the crime, namely whether he was sent by someone or that he came on his own, as his defence is that he denied the version by the prosecution, that he came by riding the motorcycle. [67] The learned High Court Judge also considered the defence of the appellant that before his arrest he was waiting for his friend. But he never gave the details of this friend that he was waiting for, to the investigating officer, to enable the police to investigate the truth of his version of the story. [68] Given the aforesaid, it was the finding of the learned High Court Judge that the defence of the appellant are a bare denial, mere afterthoughts and recent concoctions. Following therefrom, the learned High Court Judge found that the defence failed to raise a reasonable doubt on the prosecution’s case. It was also the finding of the learned High Court Judge that the defence also failed to rebut the presumption under section 37 (da) of the DDA. It was also held by the learned High Court Judge that : 26 “Tiada mana-mana saksi pendakwaan, khususnya SP 2, SP 3 dan SP5 bersetuju dengan pembelaan yang dicadangkan itu. Apa yang dicadangkan kepada saksi pendakwaan yang mana dinafikan bukanlah keterangan. OKT perlu memberi penjelasan mengenai inferens pengetahuan mengenai keujudan dadah dalam eks. P12A.” [69] At the conclusion of the trial, the learned High Court Judge found the contention of the appellant in denying any knowledge of the drugs to be improbable. The story of the appellant waiting for his friend when he was arrested by the police was highly improbable as nothing of these facts were informed to the investigating officer, SP 5. No such evidence was adduced and no details relating to the said friend was given to SP 5 to support the appellant’s story. The failure of the prosecution to produce the motorcycle, PDS 3129, the key to the motorcycle and the helmet which were seized by SP 2: [70] It has never been denied that this motorcycle exists and it belongs to Rain Kumar. The evidence established the fact that at the material date and time, the appellant was seen riding the motorcycle. It was also established through SP 2 and SP 3 that the drugs were carried by the appellant in his right hand, not in the carrier of the motorcycle. Hence the failure of the prosecution to tender the motorcycle, the keys and the helmet is not fatal to the charge as the drugs were not found in the carrier basket of the motorcycle. There is no gap on the prosecution’s case nor throw doubt on the charges. 27 CONCLUSION: [71] Therefore, the issues raised by the appellant has no merits. There is no error in facts or law nor any misdirection committed by the learned High Court Judge in arriving at the conclusion of a prima facie case and also in making a finding of guilt under section 39B (1) (a) of the DDA. [72] Unanimously we find that the conviction is safe. We find no merits in the appeal. We therefore dismissed the appeal and affirmed the conviction and sentence by the learned High Court Judge accordingly. Signed by: Zabariah Mohd Yusof Judge Court of Appeal Putrajaya Date: 23.8.2019 COUNSEL: S. Singaravadivel for the Appellant [Messrs Liew Julia Tun & Hairi] DPP Dhiya Syazwani Izyan binti Mohd Akhir for the Respondent [Attorney General’s Chambers]