Julasiri Bin Akilmara v Pendakwa Raya (S-05(SH)-334-08/2022)

The appellant and another accused, Aspal bin Hussain (‘Aspal’), were jointly charged for trafficking 137.03 grams of methamphetamine under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (‘DDA 1952’), read with Section 34 of the Penal Code. Both were convicted and sentenced to life imprisonment and 15 strokes under Section 39B(2A).

The appellant had raised two issues for our consideration in this appeal, namely, on possession and the failure of the trial judge to indicate to the defence whether he had to answer a case of trafficking under Section 2 DDA 1952 or presumed trafficking under Section 37(da) DDA 1952. We found no merit in the issue of possession. However, we had allowed the appeal, finding the learned trial judge's failure to indicate whether he had made a finding of actual or presumed possession as fatal, as it had occasioned a miscarriage of justice to the appellant.

The prosecution has appealed. Our judgment will therefore focus on the court’s failure to specify to the appellant the finding on trafficking. Facts The prosecution’s case

4.. The Charge against the appellant and Aspal read as follows: "Bahawa kamu bersama-sama pada 16 haribulan Disember 2018, jam lebih kurang 12.30 tengahari, bertempat di tepi jalan di hadapan Sekolah Menengah Kebangsaan Datuk Panglima Abdullah, di dalam Daerah Semporna, dalam Negeri Sabah, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 137.03 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dibaca bersama Seksyen 34 Kanun Keseksaan."

On 16 December 2018, the police team led by Inspector Mohd Shahrul Tarmizi bin Sahffiiee (PW6) observed a dark blue Honda CRV car bearing registration number WFJ 2278 at the roadside near SMK Datuk Panglima Abdullah, Semporna. The police observed the car for about 10-15 minutes before approaching the car. PW6 and his team approached the car and introduced themselves as police officers.

Aspal, who was seated in the front passenger seat, got out of the car to flee and threw a black plastic package under a mango tree. When PW6 instructed him to switch off the engine, the appellant, who was seated in the driver’s seat, also attempted to run, resulting in a scuffle before he was subdued and arrested.

The appellant and Aspal were arrested. The police team retrieved a black plastic package from beneath the mango tree, which, upon inspection, contained four medium-sized plastic packets of a substance suspected to be drugs. The chemist who analysed the substances confirmed that it weighed 137.03 grams of methamphetamine.

The police had also arrested an undocumented migrant named Abdul Gamar bin Basa based on information provided by Aspal and the appellant. The police subsequently released him as their investigations revealed that he was not connected to or involved in this case.

At the end of the prosecution’s case, the High Court held that the prosecution had established a prima facie case against Aspal and the appellant and called upon them to enter their defence. The High Court invoked the presumption of trafficking under Section 37(da) DDA 1952. The defence

Both the appellant and Aspal gave sworn evidence. The appellant and Aspal left from the appellant’s house in the Honda car to go for a drive. During the drive, Aspal received a call from his friend named Kaisar. Aspal told the appellant to go to SMK Datuk Panglima Abdullah, Semporna, and wait there as Kaisar wanted to meet him there. Aspal claimed that he regularly buys turtle eggs from Kaisar. While waiting in the car, Kaisar approached it and threw a black plastic bag inside. Soon after, the police approached the car to arrest the appellant and Aspal. The appellant denied attempting to flee and claimed that he had voluntarily switched off the engine and surrendered the keys to the police.

The High Court dismissed their narratives as inherently implausible. The Court found Kaisar to be a fictitious character, as the appellant and Aspal did not provide any details about Kaisar, and Kaisar’s existence was not established to the prosecution’s witnesses during the trial. The High Court held that Aspal and the appellant had failed to rebut the presumption of trafficking and did not raise a reasonable doubt. Both were sentenced to life imprisonment and 15 strokes of the cane. The appeal

The appellant raised two issues at the hearing of this appeal. The first issue concerned the High Court’s finding of possession. The second issue was the learned High Court judge’s failure to inform the appellant whether he needed to answer a case of direct trafficking under Section 2 DDA 1952 or a case of presumed trafficking under Section 37(da) DDA 1952.

Considering that only the prosecution lodged an appeal against this court’s decision, we will only set out our findings regarding the issue of trafficking, specifically whether it was necessary for the learned High Court judge to inform the appellant if he was required to answer a case of direct trafficking or presumed trafficking.

The appellant argued that the learned High Court judge did not specify whether the defence called was based on actual trafficking or presumed trafficking under Section 37(da) DDA 1952. The appellant claimed that this omission was a serious procedural failure and infringed the right to a fair trial. The appellant referred to this Court’s decision in Bong Sing Seng v PP [2023] 8 CLJ 505, where it was held that the trial judge must inform the accused whether they had a case to answer for actual trafficking or presumed trafficking if a prima facie case was established, and that failing to do so would constitute a miscarriage of justice. In that case, the High Court’s conviction for trafficking was overturned and replaced with a conviction for possession under Section 12(2) DDA 1952.

The appellant argued that the ambiguity caused by the learned High Court judge’s failure to specify had prejudiced the appellant in the preparation and presentation of his defence.

The learned Deputy Public Prosecutor (‘DPP’) responded that there was no error made by the learned High Court judge, as his lordship had correctly adhered to the provisions under section 180 of the Criminal Procedure Code before reaching his decision. Learned DPP submitted that there was no obligation for the learned High Court judge to provide reasons for his decision in determining that a prima facie case had been established and calling for the defence. The case of Junaidi bin Abdullah v PP [1993] 4 CLJ 201 was cited, where the Supreme Court held as follows: “In our opinion, there is also no statutory provision requiring a Judge sitting alone to expressly record his reason before calling the Accused to enter his defence or to state his findings on the credibility of main prosecution witnesses. But, as a matter of practice, where there is a particular reason for doing so, such as where a submission of no case to answer has been made in a complex case, or where the Accused is called to enter a defence on a lesser or alternative charge, Judges do sometimes give their reasons. In uncomplicated cases, such as in the instant appeal, it is not obligatory or even necessary to do so. By calling an Accused to enter his defence, it should be assumed that the trial Judge must on evaluation of the evidence, have been satisfied that the prosecution has, at that stage of the trial, established a prima facie case, which if unrebutted would warrant a conviction of the Accused. To arrive at such a conclusion, it is inherent that the Judge must consider all the evidence adduced by the prosecution as tested in cross-examination, on a prima facie basis…..” In this appeal the establishment of a prima facie case of unlawful possession of fire-arm under s. 57 of Internal Security Act was so obvious even to the defence Counsel that it became academic and unnecessary for the Court to consider an order of acquittal under s . 180 of the Criminal Procedure Code. Thus, when the learned Judge called for the defence in the present case, he must have been satisfied that there was a prima facie case to answer, which if unrebutted would warrant a conviction, and it was not mandatory for him to record the reasons for his satisfaction, even if there had been no concession made by the defence Counsel…..”

In conclusion, learned DPP submitted that the appellant did not suffer any prejudice nor had he suffered any miscarriage of justice, as the defence was never misdirected at any material time regarding the applicable burden of proof.

We agree with the High Court’s finding on possession. As indicated earlier, our judgment will focus on whether the High Court should have informed the appellant whether he needed to answer in relation to a case of actual or presumed trafficking.

In the case of Bong Sing Seng (supra), the appellant was charged with trafficking under Section 39B(1)(a) DDA 1952. He was found guilty by the High Court. The appellant in that appeal argued that his conviction was unsafe as the High Court had failed to make a finding at the end of the prosecution’s case whether it was a case of actual or presumed trafficking. This was a point of law. It was submitted that the omission had prejudiced the appellant, as he would not know whether he had to raise a reasonable doubt or rebut the presumption on a balance of probabilities. This court, in agreeing with the appellant’s submissions, set aside the appellant’s conviction for trafficking under Section 39B(1)(a) DDA 1952 and substituted it with a conviction for possession under Section 12(2)

The decision in the Bong Sing Seng case binds us. We would adopt a similar stance. In a drug trafficking case, it is incumbent on the trial judge to make a finding and indicate whether the defence must answer a case of actual or presumed possession, or whether the trafficking was presumed or actual. The burden imposed on the appellant is different for both scenarios, as he would need to discharge the burden on a balance of probabilities if the presumption is invoked against him. In contrast, the burden for actual trafficking would be to raise a reasonable doubt. Without being informed, the appellant would be significantly prejudiced, as he would be unable to prepare his defence without knowing the burden imposed.

The court in Bong Sing Seng referred to several decisions by the Federal Court on this matter. These included Caniete Robelyn Mastelero v Pendakwa Raya [Criminal Appeal No. 05(M)-240-10- 2018], Rozman bin Ibrahim v Pendakwa Raya [Criminal Appeal No. 05(M)-205-09-2019(B)], and Law Song Kim v Pendakwa Raya [Criminal Appeal No. 05(M)-227-10-2019(P)]. In all these cases, the apex court held that the trial judge's failure to specify whether the defence was called on actual or presumed trafficking resulted in a miscarriage of justice. The convictions for trafficking were therefore set aside and replaced with convictions under Section 12(2) DDA

None of these cases was reported in the Law Reports. However, the learned counsel for the appellant provided excerpts from the Notes of Proceedings, which this Court accepted as an accurate account of what transpired during the appeals.

We are of the view that although it is not mandatory for the trial judge to give reasons for concluding that the prosecution has established a prima facie case, it remains necessary for the judge to inform the accused of whether they are facing actual or presumed trafficking. This determination is crucial because the burden of proof varies. An accused must meet a higher burden in cases of presumed trafficking compared to actual trafficking.

We are therefore resolute that the appellant suffered a miscarriage of justice due to the learned High Court judge’s failure to make a clear finding and inform the appellant whether he needed to answer a case of direct or presumed trafficking. We therefore find his conviction for trafficking under section 39B(1)(a) DDA 1952 unsafe.

As indicated earlier, we are satisfied that the evidence supported the High Court’s finding of possession against the appellant and Aspal. We therefore find that the prosecution has succeeded in proving an offence under Section 12(2) DDA 1952.

Accordingly, we set aside the High Court’s conviction on the trafficking charge under Section 39B(1)(a) DDA 1952 and substitute it with a conviction for possession of dangerous drugs under Section 12(2) DDA 1952, which is punishable under Section 39A(2) of the same Act. The appellant is therefore sentenced to 12 years' imprisonment from the date of his arrest. However, he is spared from whipping as he is over 50 years old. Dated: 28 November 2025 -sgd- (MOHAMED ZAINI MAZLAN) (JUDGE) COURT OF APPEAL MALAYSIA Counsel for the Appellant : Kamarudin bin Mohamed Chinki Messrs Chang & Kamarudin Counsel for the Respondent : Mohd Fairuz bin Joharoi