Kaidal Bin Sahidin v Pendakwa Raya (S-05(SH)-444-10/2023)

This is an appeal by the appellant who is the accused in the court below, against the decision of the learned High Court Judge in convicting him for drugs trafficking under section 39B (1)(a) of the Dangerous Drugs Act 1952, for which he was punished with life imprisonment and twelve (12) strokes of whipping.

The charge against the appellant reads as follows: “That you, on the 10th day of March 2020, at about 1.30 p.m. located at RCP Mile 4, Jalan Sapi Nangoh, in the District of Beluran, in the State of Sabah did on your own behalf traffic in a dangerous drugs to wit 207.73 gram of Methamphetamine and that you have thereby committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) and punishable under section 39B(2) of the same Act.”

In this judgment, the parties will be referred to as they were in the High Court.

The learned HCJ has neatly summarised the case for the prosecution in her grounds of judgement, which we reproduce in this judgment with some modifications.

Relying on a tip-off of a possible drugs trafficking activity, on 10.3.2020, PW6 assembled a team of police personnel and headed to the location at RCP KM 3, Jalan Siap Nangoh, Beluran. They conducted surveillance of the area for their target, which was a white Toyota Hilux bearing registration number SK3871B (the said vehicle).

At about 1.30 p.m., a vehicle fitting the description of the target came by, driven by a male who was alone. The male was later identified by PW6 in court as the accused.

The vehicle was stopped and the accused was directed to pull over by the side of the road. PW6 introduced himself and requested for the identification of the accused, who appeared nervous and shocked.

PW6 said that he administered the statutory caution under section 37B(1)(b) of the DDA to which the accused said “Ya, saya faham”. PW6 then asked the accused whether he had with him or was hiding any incriminating items. The accused replied “ada” and proceeded to take a black plastic bag, which was visible at the gear panel of the vehicle, and handed it over to PW6.

Upon inspection, PW6 found the black plastic bag contain six clear plastic packets, each containing crystalline substances suspected to be syabu. These items were seized, and the accused was arrested.

Subsequently, the crystalline substances sent to the Chemistry Department for analysis were found to contain 207.73 grams of Methamphetamine. The accused was later charged at the High Count in Sandakan. FINDING OF THE LEARNED HIGH COURT JUDGE AT THE END OF

Based on the case of Balachandran v Public Prosecutor [2005] 1 CLJ 85; [2005] 2 MLJ 301; [2004] 2 MLRA 547 and Looi Kow Chai & Anor v Public Prosecutor [2003] 1 CLJ 734; [2003] 2 MLJ 65; [2002] 2 MLRA 383, the learned HCJ ruled that a prima facie case had been established by the prosecution, as there was credible evidence to establish the essential ingredients of the offence, namely:

(I) That the subject matter concerned was 207.73 gram of

That the accused had possession and knowledge of the subject matter; and

That the accused had, at the place, time and date stated in the charge against him, traffic in the subject matter.

The learned HCJ accepted the expert evidence of the Government Chemist (PW1), and ruled that the crystalline substance found in the six clear/transparent plastic packets contained in the black plastic bag was Methamphetamine weighing 207.73 gram. The evidence of PW1 in this respect was not contested by the accused.

The learned HCJ also dealt with the possibility of the drugs seized by PW6 had been tampered with. In this regard, the learned HCJ had carefully analysed the evidence of the exhibit storekeeper (PW2), PW5 and PW6 and found that, despite the discrepancies in the evidence of PW2 pertaining to the entries in the inventory log maintained by PW2, there was no break in the chain of custody of the drugs so as to render their identity thereof doubtful. This was because both PW5 and PW6 had marked the exhibits and confirmed them in court. Furthermore, the chemist (PW1) had also identified the exhibits based on those markings made by PW5 and PW6. The learned HCJ also dismissed the allegation that the heat-sealed packet containing the remainder of the drugs that had been tampered with after analysis by PW1. According to the learned HCJ, the allegation remained mere speculation, as there was no evidence supporting such contention. Moreover, the learned HCJ observed that before the sealed envelope containing the packets was opened, PW1 had clearly informed the court that the Chemistry Deportment’s seal remained intact, hence dismissing any possibility of tempering of the exhibits.

Pertaining to the issue of possession and knowledge, the learned HCJ found that the accused was found alone in the said car when stopped by PW6 and his team. PW6 had administered the statutory caution under section 37B(1)(b) of the DDA, and the accused admitted that he understood the cautionary statement. PW6 then asked the accused whether he had or was hiding any incriminating items. At this point in time, the accused took the black plastic bag, which contained the drugs, in the gear panel and handed it to PW6. This, according the learned HCJ, constituted credible evidence proving both the elements of custody and control.

On the issue of knowledge, the learned HCJ stressed that, from the facts of the case, the evidence of knowledge on the part of the accused was not so much what he did not do (i.e. escaping upon seeing the police at the roadblock), but what he did, namely when he handing over the black plastic bag which was later found to contain the drugs. In relation to the handing over of the black plastic bag containing drugs to PW6, the learned HCJ pointed out that the accused’s submission that there was no cautionary statement had been administered by PW6 was baseless, as this issue was never challenged during cross-examination and therefore amounted to an acceptance of PW6’s testimony.

Having been satisfied that the prosecution had proven the elements of possession, the learned HCJ invoked the statutory presumption under section 37(da)(xvi) that the accused was presumed to be trafficking the drugs.

Upon maximum evaluation of the evidence adduced by the prosecution, the learned HCJ ruled that the prosecution had proven a prima facie case against the accused and ordered the accused to enter his defence.

Giving evidence under oath, the accused denied any knowledge of the drugs and claimed that he was merely driving the vehicle for a man named Habib to buy fertilizer. He was not aware of the black plastic bag found in the vehicle and told the police that it belonged to Habib. The witnesses called by the accused also testified that Habib was not a fictitious person and that he lived at an address in Sandakan. DW3, a police officer from the Forfeiture Unit, confirmed that the seizure of the vehicle driven by the accused at the time of his arrest. DW3 further confirmed that he had met Habib and had informed the Investigating Officer (PW5) about him. DW4, the wife of the accused, testified that the accused worked for Habib and they did not own a vehicle.

The accused argued that the police investigation was incomplete because PW5 had failed to locate and called Habib as a witness, even though his existence and address had been confirmed. It was contended that it was Habib, and not the accused, who was responsible for the drugs.

The learned HCJ also found that the accused’s explanation that he was unaware of the drugs and suggested that the police had planted them while he was outside of the vehicle is implausible. In this respect, the learned HCJ stated that accepting the accused’s claim would require one to believe that the police had conspired with the tip-off source to frame him. However, the accused had failed to adduce any evidence to support this line of defence. Consequently, the learned HCJ concluded that the accused’s defence that he was framed-up by the police highly improbable and lacked supporting evidence.

The learned HCJ ruled that the accused has failed to rebut the presumption of trafficking under section 37(da)(xvi) of DDA. The accused had also failed to cast any reasonable doubt on the prosecution’s case. Hence, the accused was convicted of the charge preferred against him.

SENTENCING The learned HCJ opined that, with the abolition of the death penalty pursuant to section 54 of the Abolition of Mandatory Death Penalty Act 2023, the court was no longer concerned with the conditions under section 39B(2A) of the DDA before it may exercise its discretion to either impose the death penalty or life imprisonment. The learned HCJ was of the view that the prosecution did not, except for the weight of the drugs, offer any other reasons why the court should exercise its discretion and impose the death penalty.

Based on the facts before her, the learned HCJ sentenced the accused to life imprisonment and to be whipped with 12 strokes of whipping.

The accused raised numerous grounds of appeal in his Petition of Appeal. We have carefully considered them. However, besides a general attack on the finding of the learned HCJ in convicting the accused, the main ground of appeal centres on the failure of the prosecution to call Habib as a witness and whether the learned HCJ had correctly evaluated and accepted the evidence of PW6 pertaining to the handing over of the plastic bag containing the drugs.

In this regard, in the Petition of Appeal, the accused contended that the failure to call Habib has resulted in significant gaps in the prosecution’s case because:

(I) The vehicle used in the accused was registered in the name of Habib, not in the name of the accused which raised “questions about the exclusive control and custody” by the accused;

Habib’s testimony is essential to:

Elucidate the circumstances under which the appellant came to possess and control the vehicle;

Exclude the possibility that individuals other than the accused had access to the vehicle where the drugs were found;

Close the gap in establishing the accused’s exclusive control over the drugs;

Provide clarity about the vehicle’s movements and handling during the relevant period;

Establish an alternative explanation for the accused’s presence in the vehicle i.e. that the accused was working for Habib;

Address and potentially counter the accused’s assertion that Habib had instructed him to travel to Telupid for the purpose of acquiring fertilizer to be transported to Paitan;

Exclude the possibility that he was not the real drugs trafficker; and

Support the possibility that Habib was the real trafficker.

With regard to the evaluation of the evidence of PW6, it was contended that:

(I) There was inconsistency between the evidence of PW6 and PW4 in that, while PW6 testified that the accused had handed over the black plastic bag containing drugs to PW (implying that the accused had in his possession of the drugs), PW4 testified that PW6 was not holding the black plastic bag at the time of the arrest;

PW6’s assertion of a voluntary handover of the black plastic bag by the accused is directly refuted by PW4’s testimony, which indicated that PW6 did not have the bag in his possession during the arrest; and

The sequence of events as described by PW4 had raised doubt about the administration of caution by PW6. According to the accused, the inconsistency suggested that the cautionary words may not have been effectively communicated to the accused.

However, in his submission, learned counsel for the accused appeared to rely on different grounds of appeal. The submission was based on the following issues:

(I) GROUND 1: The learned trial judge erred in law by relying on the uncorroborated and prejudicial evidence of PW6 regarding the alleged handover of drugs by the appellant after a caution.

GROUND 2: The learned trial judge erred in failing to give proper weight to the defence evidence and in failing to draw an adverse inference from the prosecution’s refusal to call the vehicle owner.

GROUND 3: No challenge does not equal acceptance.

GROUND 4: The prosecution failed to prove possession and knowledge beyond reasonable doubt despite finger print dusting being conducted, no forensic report was produced.

The law is settled. Pursuant to Rule 65 of the Rules of the Court of Appeal, an appellant is required to file a Petition of Appeal in Form 8 in the First Schedule within ten days after service upon him of the papers mentioned in Rule 63. Section 53 (2) of the Court of Judicature Act 1964 stipulates that the Petition of Appeal shall contain particulars of the matters of law or of fact in regard to which the High Court is alleged to have erred. Like the rules of pleading in civil litigation, the grounds of appeal in criminal appeal are important, as they give notice to both the court and the respondent of the issues to be determined in the appeal. It is trite law that, like the law on pleading, the appellant is not allowed to go beyond the issues identified in the Petition of Appeal (see Government of the State of Sabah v Syarikat Raspand [2010] 5 MLJ 717; [2010] 7 CLJ 945; [2010] 2 MLRA 230, Jaafar bin Ibrahim v Gan Kim Kin [1985] 2 MLJ 24; [1984] 2 CLJ 89 ; [1984] 1 MLRA 873 and Bar Malaysia v Neasarani Singara Thevar & Anor [2015] 8 CLJ 634; [2014 ] 6 MLJ 451; [2016] 1 MLRA 120). Additional grounds may only be advanced with the leave of the court under Rule 18 (2) of the Rules Court of Appeal (see Ooman Chung v The Director of Lands and Surveys, Sabah & Ors [2015] 10 CLJ 85; [2015] 9 MLJ 804; [2015] 5 MLRA 557).

Any departure from the ground of appeal as stated in the Petition of Appeal must be made with the leave of court.

In this respect, learned author Tan Kee Heng in Civil and Criminal Appeals in Malaysia, Fourth Edition, paragraph [10.032] at page 514 has summarise the law as follows; “It is essential to bear in mind that the petition of appeal must set forth precisely and succinctly the grounds of appeal as section 59(2) of the CJA 1964 expressly provides, inter alia, that an appellant, except by leave of the Court of Appeal,77 shall not be permitted on the hearing of the appeal to rely on any ground of appeal other than those set forth in the petition,78 subject to the discretion of the court to permit a point of law or of fact, which is not in the petition of appeal, to be raised in order that substantial justice may be done.79”

We have duly considered the Petition of Appeal and the written submission of the accused in this appeal. While we find that the submission has departed from the Petition of Appeal without the leave of this court, this departure has not caused any prejudice to the prosecution. The written submission of the accused basically encompasses all the issues raised in the Petition of Appeal and are, in fact a more concise and focussed version thereof. Hence, in this appeal, we will not disregard the written submission filed by the learned counsel for the accused, but will consider them together.

Be that as it may, having considered both the submission and the Petition of Appeal, we are of the view that the appeal may be determined based on the following main issues i.e.:

(I) Whether the learned HCJ was correct in convicting the accused when:

The learned HCJ relied on the evidence of PW6; and

The prosecution had not called Habib as a witness. The learned HCJ relied on the evidence of PW6

PW6 was the key witness for the prosecution, as it was he who found the black plastic bag containing the drugs. His evidence established the element of possession of the drugs by the accused. However, his evidence was challenged by the accused on the basis that there was no corroboration of the fact that PW6 had properly administered the statutory caution under section 37B(1)(b) of the DDA. In this regard, it was submitted that there were inconsistencies between the evidence of PW6 and PW4.

With respect to the evidence of a police witness, the law states that, such evidence must, in the first instance be accepted if it is not inherently improbable. This principle was laid down by the Federal Court more than 63 years ago in the case of Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257; [1962] 1 LNS 128; where Thompson CJ states: “…When a Police witness says something that is not inherently improbable his evidence must be in the first instance be accepted. if he says he saw a cow jumping over the moon, his evidence is, of course, not to be accepted, but if he says he saw a cow wandering along one of the main streets in Kuala Lumpur (the sort of thing we all see every day of our lives) there is not a slightest justification for refusing to believe him. Of course, if his evidence is contradicted by other evidence or if shaken by cross examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted…”

To recap, PW6 testified that he had administered the section 37B caution after stopping the accused at the roadblock. According to PW6, the accused understood the caution and after asking the accused whether he had with him incriminating item, the accused replied “ada” and took a black plastic bag from the gear panel of the car and handed it over to PW6. It was later proven that the drugs were found in the black plastic bag, which formed the plank of the prosecution’s case against the accused.

The accused complained that the learned HCJ, instead of carefully scrutinising PW6’s evidence, had embraced it wholly. He further submitted that the learned HCJ accepted, without question, that the accused handed over the drugs after being cautioned, despite there being:

No contemporaneous recording;

(ii) No logbook entry;

(iii) No follow-up inquiry into the voluntariness of the act;

(iv) No confirmation by any other witness.

The fallacy of the accused’s submission on this issue lies on the fact that the evidence of PW6, with regard to his administering the caution to the accused, was not challenged by the accused during the trial. A closer analysis of the cross-examination of PW6 show that the learned counsel did not challenge the caution that had been administered by PW6. In fact, there is no challenge that the caution had been administered at all. The failure to cross examine on this crucial issue is fatal to the accused’s defence because such failure tantamount to the acceptance of PW6’s evidence (see Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212; [1981] 1 CLJ 53; [1981] 1 MLRA 125).

Hence, it is too late now for the learned counsel to complain that PW6’s evidence was accepted by the learned HCJ without any contemporaneous recording or with no logbook entry or with no follow up inquiry into the voluntariness of the act or no confirmation by any other witness when, during the trial, they did not take the opportunity to challenge admissibility of that evidence.

The evidence of PW6 has proven the following facts:

The accused was alone in the vehicle when he was stopped at the road block;

(ii) The accused admitted that he had incriminating item with him in the vehicle; and

(iii) He handed over a black plastic bag containing the drugs to PW6 from the gear panel of the vehicle.

These are credible evidence showing that the accused was in possession of the said drugs at the time of his arrest. This is also the basis for the learned HCJ invoking the presumption of trafficking under section 37(da)(xvi) of DDA. We find no appealable error by the learned HCJ. Uncorroborated evidence of PW6

It was submitted by learned counsel that the learned HCJ erred in relying on the uncorroborated evidence of PW6 regarding the handing over of the drugs after the caution being administered. In fact, in his oral submission, learned counsel had indicated that this was his main complaint in this appeal i.e. the accused was convicted based on an uncorroborated fact of handing over of the drugs from the gear panel of the vehicle to PW6.

The law is well settled. Corroboration simply means confirmation, by way of independent evidence that connect the accused with the crime. The evidence of a witness need not be corroborated except the evidence of a child witness under section 133A of the Evidence Act 1950. This statement of law has been succinctly explained in the case of Aziz bin Mohamad Din v Public Prosecutor [1996] 5 MLJ 473; [1997] 1 CLJ 523; where it was stated that: “Corroboration is not a technical term. It simply means ‘confirmation’ (see Deputy Public Prosecutor v Hester [1973] AC 296). The locus classicus on what amounts to corroborative evidence is the celebrated case of R v Baskerville [1916] 2 KB 658 where Lord Reading CJ said at page 667: ‘We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, there must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it….’ The word ‘implicate’ does not necessarily mean ‘incriminate’ or ‘inculpate’; it may mean only ‘involved’ (see R v Kerim [1988] 1 Qd R 426). Ong CJ (Malaya) said in Brabakaran v Public Prosecutor [1966] 1 MLJ 64 that corroborative evidence is not necessarily restricted to the oral evidence of an independent witness. It may be circumstantial as well as direct (see R v Tripodi [1961] VR 186) In Doney v R [1990] 171 CLR 207 it was held that consistent with its role of confirming other evidence rather than amounting itself to evidence which necessarily leads to conviction, the corroborative evidence does not need to be proven beyond reasonable doubt. It must be noted that the question of corroboration does not arise unless the evidence of the witness requiring corroboration is itself credible. In this regard Gunn Chit Tuan J (as he then was) said in TN Nathan v Public Prosecutor [1978] 1 MLJ 134 at page 137: Lord Hailsham has expressed a similar opinion in the English House of Lords ‘s case of Deputy Public Prosecutor [1973] 1 All E 440 when he said at page 452: “Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted, even if there could be found evidence capable of corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise. Thus, the essence of corroborative evidence is where one creditworthy witness confirms what another creditworthy witness has said (see Yap Ee Kong & Anor v Public Prosecutor [1981] 1 MLJ 144) Generally, in Malaysia there is no specific rule of law that requires the evidence of a witness to be corroborated except in the case of the evidence of a child of tender years under section 133A of the Act. However, in certain types of cases there is a rule of practice which requires evidence to be corroborated, this includes the evidence of a complainant in a case involving sexual offence. Even in such cases a conviction based on uncorroborated evidence is not illegal. But the rule of practice regulates the manner in which uncorroborated evidence is to be treated, that is to say, the judge must warn himself of the dangers of convicting on such evidence…’

Hence, in the case of Chiu Nang Hong v Public Prosecutor [1965] 1 MLJ 40; [1964] 1 LNS 24 the Privy Council opines that: ‘’…. where the learned Judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant’s evidence…a judge sitting alone, should…make it clear that he has the risk in question in his mind, but nevertheless is convinced that the evidence, even though uncorroborated, that the case against the accused is established beyond reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge’s mind upon the matter should be clearly revealed”

It is also pertinent to note that pursuant to section 134 of the Evidence Act 1950 provides that ‘no particular number of witnesses shall in any case be required for the proof of any fact’. Even a single witness, whose evidence is not inherently improbable, may proof a fact in issue in the trial. Hence, in Lim Guan Eng v Public Prosecutor [1998] 3 MLJ 14, 1998 3 CLJ 769; [1998] 2 MLRA 159. This court summaries the law as follows: “So far as the law governing corroboration is concerned, we accept the following proposition to be well settled and beyond controversy:

As a general rule, the conviction of an accused person may proceed upon the uncorroborated evidence of one witness.

There are cases where either common law-as a matter of practice which has, through passage of time, acquired the force of law-or statute, creates an exception to the general rule in respect of certain categories of witnesses by calling for, or indeed demanding, that their evidence may not be to be acted upon in the absence of independent corroboration. Accomplices illustrate the common law exception, while s 6(1) illustrate the statutory exception.

Evidence that requires corroboration, whether as a matter of practice having the force of law or by direction of statute:

must first be capable of belief before any question of corroboration may arise, for evidence that falls of its own inanition cannot be saved by the presence of abundant corroboration;

cannot corroborate itself, for tainted evidence does not remove its taint by repetition, notwithstanding s 157 of the Evidence Act 1950; and

cannot be corroborated by evidence that itself requires corroboration.

To constitute true corroboration in the eyes of the law, the corroboration evidence must:

be capable of belief;

be independent in the sense mentioned in proposition 3 (c) above;

be in respect of the fact or facts that lie at the axis of the dispute, that is to say, upon the fact in issue and not upon some collateral matter or upon a fact in respect of which there is no quarrel. In other words, it must be corroboration upon a material particular but need not be identically repetitive of the evidence that requires corroboration.

At common law, a trial court is entitled to act upon uncorroborated evidence which in itself requires corroboration provided that it warns itself of the danger of so acting. The warning must not amount to mere lip-service. Good reasons must be furnished for departing from the accepted rule. Departure from the normal rule may be justified where the evidence requiring corroboration emanates from a witness who is a person of high character and the offence is one that does not carry with it any serious moral stigma.”

It was submitted by the learned Deputy that the search list prepared and the police report lodged by PW6 are corroborative evidence of the fact that the black plastic bag was handed over to PW6 by the accused.

In this regard, we remind ourselves that corroborative evidence must be independent of the testimony of PW6. It must not be the repetitive of the testimony of PW6. Both the search list and the police report merely reproduce PW6’s evidence of the fact that the accused had handed over the black plastic bag to him. While these two documents are admissible under section 157 of the Evidence Act 1950, section 73A (7) of the same Act clearly disqualify the statement contained in the two documents (which is admissible under section 157) as corroborative evidence. This proposition of law has been lucidly explained by Augustine Paul J (as he then was) in Aziz bin Muhamad Din (supra) at page 492 as follows: ‘Where two provisions in the statute appear to be in conflict with each other the first task is to ascertain whether they can be harmoniously interpreted. As both ss 73A (7) and 157 of the Act cannot be harmoniously interpreted it is my view that s 73A (7) must prevail in the light of the rules of construction that I have adverted to. In the upshot a statement rendered admissible by s 157 cannot be treated as corroboration of evidence given by the maker of the statement in instances falling within the meaning of s 73A (7). Section 73A (7) has restated the law of corroboration in full glory as originally formulated in R v Baskerville [1916] 2

KB 658 and has demolished the uneasiness that surrounded s This view is anchored on the foundation laid in PP v Chee Kon Fatt [1991] 3 CLJ 2564 by Edgar Joseph Jr J (as he then was) where his lordship said at p 2565: The only evidence in the case for prosecution as to this alleged fact was the uncorroborated testimony of Chettavelu and, although it was said that he did give his version of the fact deposed to in this court, to his superior Chief Inspector Suleiman and to the Investigation Officer DSP Yeap Hooi Pin, within a short while after the arrest of the accused, nowhere in his police report made in writing on that day at 8.15 pm did he even mention the fact that he had seen the box on the petrol tank of the motorcycle seated astride which was the accused nor was any explanation vouchsafed to this court for this glaring omission. In any event, repetition is not corroboration in the true sense within the meaning of R v Baskerville [1916] 2 KB 658. This proposition has received statutory recognition in s 73A of the Evidence Act 1950 (Revised 1971) ….’ (Emphasis added)

We agree with the above view and rule that the search list and the police report are not corroborative evidence of PW6’s testimony.

However, we are of the view that the fact that the accused was alone in the vehicle at the time of his arrest, and that he was in close proximity to the black plastic bag (which was taken from the gear panel of the vehicle) constitutes corroborative evidence that he had custody, control and knowledge of the black plastic bag containing the drugs at all time prior to his arrest. PW4, the police photographer who was present at the scene during the arrest also confirmed that the accused was alone at the time of the arrest. The fact that the accused was alone in the vehicle at the time of arrest was not challenged during cross examination. In fact, it was suggested by the learned counsel and agreed by PW6 that the accused was driving from Sandakan when he was arrested. In our view, this is the corroborative of the fact that drugs were in the possession of the accused at the time of the arrest.

Based on the above reasons, we are of the opinion that PW6’s evidence was sufficiently corroborated and the prosecution has proven the element of possession against the accused. Based on the same reason, we also find that the learned HCJ was justified in invoking the presumption of trafficking under section 37(da)(xvi) of DDA. We find no appealable error in the learned HCJ’s finding. The prosecution had not called Habib as a witness.

Learned counsel for the accused criticised the prosecution for not calling Habib as a witness and urged this court to invoke section 114

of the Evidence Act. It was contended that Habib, whose full name is Habib Allah bin Samehe, is the owner of the vehicle. On the date of arrest, the accused was not trafficking drugs but he was asked by Habib to deliver fertilizer. The learned counsel also criticised the learned HCJ for accepting the prosecution’s claim that Habib could not be traced when DW3, a police officer attached at the Narcotic Department, had managed to serve Habib with the forfeiture notice on 14.8.2020.

It is settled law that the prosecution is vested with absolute discretion of calling any witness it chooses to testify in any criminal trial. The prosecution is not obligated to call all witnesses to testify on every fact on which the prosecution wishes to prove. In the case of Adel Muhammed El Dabbah v Attorney General for Palestine [1944] AC 156 the Privy Council stated: ‘’The prosecutor has a discretion as to what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive.’’

It is also pertinent that, in a criminal trial, the court is duty-bound to ensure that the trial is conducted fairly. Hence, any act of suppressing and withholding of material evidence may trigger an adverse inference under section 114 illustration (g) of the Evidence Act 1950 provides: The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATION The court may presume – ….

that evidence which could be and not produced would if produced be unfavourable to the person who withholds it

Under illustration (g) above, the court may presume that the evidence which could be and if not produced would, if produced be unfavourable to the prosecution. However, this presumption should not be automatically invoked whenever the prosecution chose not to call any particular witness. In the case of Munusamy v Public Prosecutor [1987] 1 MLJ 492; [1987] CLJ 221; [1986] 1 MLRA 292, Mohamed Azmi SCJ, on behalf of the Supreme Court opined: It is essential to appreciate the scope of section 114(g) 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 material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.

Hence, the court should not readily invoke the presumption whenever a particular witness is not called. The particular fact and circumstances of the case should be considered before relying on the adverse inference. In the case of Public Prosecutor v Dato Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1; [1999] 2 CLJ 577, [1999] 1 MLRH 59 Augustine Paul J (as he then was) explained the application of section 114 (g) as follows: Thus, an adverse inference for not calling a witness cannot be drawn if there is sufficient other evidence to support the prosecution case (see Namasiyiam & Ors v Public Prosecutor [1987] 2 MLJ 336). No adverse inference can also be drawn when a witness has been offered for cross examination (see Saw Thean Teik v R [1953] MLJ 124) or has been made available to the defence and the defence did not call the witness (see Public Prosecutor v Chee Kon Fatt [1991] 3 CLJ 2564). If a witness had been made available to the defence, there can be no suggestion, as stated by Lord Thankerton in the case of Adel Muhammed el Dabbah v Attorney General of Palestine,’… that the prosecutor has been influenced by some oblique motive’ (see Samsudin v Public Prosecutor [1962] MLJ 405). However, where the prosecution evidence falls short of proving a prima facie case, the right of not calling a witness by merely offering him to the defence will not be available (see Abdullah Zawawi v Public Prosecutor [1985] 2 MLJ 16, Public Prosecutor v Chew Yoo Choi [1990] 2 MLJ 444, Teoh Hoe Chye v Public Prosecutor [1987] 1

Based on the principle of law stated above, the pertinent question to be determined is whether Habib is a material witness. In this regard, the name Habib was raised by the defence during the cross-examination of PW5, the Investigating officer of the case. It was suggested to PW5 that Habib was the registered owner of the vehicle and that PW5 had carried out investigations on Habib. It was also revealed that PW5 had obtained the address of Habib. However, PW5 testified that he could not traced Habib at his address because the address that he obtained i.e. Pos Komuniti Lot 110, Jambatan 21, Jalan Nuli Sim-Sim was not the residential address of Habib. It was suggested to PW5 that he could not investigate whether there was anyone else that could possibly have access to the car because PW5 could not locate the owner. It was further suggested to PW5 that since the accused was not the owner of the vehicle, there is a possibility that the car can be accessed by another person.

However, in the witness statement of PW5 during examination-in-chief, PW5 testified that the accused had told him that the drugs were obtained from a person by the name of ‘Barung’ and the transaction for the purchase of drugs took place by the roadside at Mile 25. It must be stated that, once again, this evidence was not challenged during cross-examination.

The main issue raised by the learned counsel during cross-examination of the prosecution’s witnesses, especially PW4, PW5 and PW6 were the possibility that the accused had been framed up by the informer who had passed the information on drugs trafficking activities to PW6, and the uncorroborated evidence of PW6 pertaining to the handing over of the drugs.

However, it is quite apparent that the accused was not blaming Habib for the discovery of the drugs at the time of his arrest. He did not suggest that Habib had planted the drugs in the said vehicle or that Habib was the informer who had contacted PW6 about the drugs trafficking activity by the accused. While it was submitted that Habib could have enlightened the court as to whether other persons also has access to the vehicle, the very fact that the accused was arrested while driving the vehicle belonged to Habib had answered this issue namely, that other persons do have access to Habib’s vehicle. Hence, in our view, Habib is not a material witness whose evidence may weaken the prosecution’s case.

The accused was charged for drugs trafficking at the time, date and place specified in the charge. The essential ingredients of the offence, namely possession and trafficking occurred at the time, date and place where he was stopped. The offence was completed when the said drugs were discovered in the said vehicle and later handed over to PW6 by the accused. There are credible evidences adduced by the prosecution’s witnesses especially PW4 and PW6 on the events that took place at the road block when the accused was stopped by PW6 and his team. At the risk of being repetitive, it must be reiterated that the accused was alone in the vehicle when he was stopped by the police team and that he was the person who handed over the black plastic bag containing drugs to PW6. Hence, adverse inference cannot be invoked for the prosecution’s failure to call Habib because there is sufficient other evidence to support the prosecution’s case. (see Namasiyiam & Ors v PP [1987] 2 MLJ 336; [1987] 1 CLJ 540; [1987] 1 MLRA 73).

In the circumstances, we find no error on the part of the learned HCJ.

We have carefully examined the record of appeal and we are satisfied that the learned HCJ has also duly considered the accused’s defence. In particular, Her Ladyship had considered and eliminated the defence theory that he was framed up. This was done upon her analysis of the evidence adduced by the defence and the legal principle laid down in the case of Ibrahim Mohamad & Anor v Public Prosecutor [2011] 4 CLJ 113; [2011] 3 MLJ 573; [2011] 2 MLRA 141, Sri Ganesh a/l Jaya Balan v Public Prosecutor [2021] MLJU 2642; [2022] 2 CLJ 546; [2021] 6 MLRA 392 , Syarifuddin v Public Prosecutor [2011] 1 LNS 1484; [2012] 2 CLJ 129; [2011] 6 MLRA 246; [2011] 6 MLJ 317, Public Prosecutor v Abd. Latif bin Sakimin [2005] 1 LNS 265; [2005] 6 MLJ 351; [2005] 7 CLJ 218; and Goh Han Heng v Public Prosecutor [2003] 4 SLR 374. The learned HCJ then concluded thus: [66] Coming back to the present case, if the version of the accused was correct, then the Court must also accept as true that the police was working in tandem with the person who gave the tip-off to frame the accused because it was from the tip-off that the police came to know of the vehicle and the likely route the accused was taking. There was no suggestion nor evidence that that was so. Furthermore, given that the location of the plastic bag containing the drugs was clearly visible and not concealed, the accused would have noticed it had it been planted there before the tip-off was made. It was submitted that the learned HCJ has failed to consider. [66] On the other hand, if one were to disregard the tip-off, it would mean that on the day in question on 10.3.2020, the police just happened to choose the accused at random at that roadblock in order to frame him by placing the plastic bag containing the drugs in the vehicle after he was stopped. With respect, this was highly improbable. As stated by the court in Goh Han Heng v Public Prosecutor [2003] 4 SLR 374: “It is only when the accused succeeds to do so that the burden of proof shifts to the prosecution to prove that there was no such motive. To hold otherwise would mean that the prosecution would have the burden of proving lack of motive to falsely implicate the accused in literally every case, thereby practically instilling a lack of such motive as a constituent element of every offence”

We are in the agreement with the learned HCJ’s finding above. They are supported by the evidence adduced both at the prosecution and defence stages. In the final analysis, the prosecution has successfully proved its case beyond reasonable doubt. The accused had failed to rebut the presumption of trafficking on the balance of probabilities. He has also failed to cast any reasonable doubt on the prosecution’s case.

Based on the reasons above, we find that the learned HCJ has arrived at her conclusion fully supported by the evidence and no misdirection of law and fact. The conviction under section 39B (1) of DDA is safe, and we affirm the order of conviction.

Despite appealing against sentence, the accused did not state the grounds in challenging the sentence of life imprisonment and twelve strokes of whipping. The accused also did not submit on the issue of sentence. Hence, we see no reason to deliberate on this issue in this appeal. The appeal against sentence is dismissed. We affirm the sentence as imposed by the learned HCJ.

Based on the record of appeal and the submission of both learned counsel and learned Deputy Public Prosecutor, we find no merit in the appeal. The order of conviction is safe. The appeal against conviction is dismissed. We affirmed the order of conviction against the accused.

We also dismissed the appeal against sentence and affirm the sentence imposed by the learned HCJ. Dated: 24th December, 2025 -sgd- AZHAHARI KAMAL BIN RAMLI JUDGE COURT OF APPEAL MALAYSIA For the Appellants: Mohd Azhier Farhan Bin Arisin [Tetuan Azhier Arisin & Co (Kota Kinabalu)] For the Respondents: TPR Nik Mohd Fadli Bin Nik Azlan [Jabatan Peguam Negara AGC]