Kang Choo Kiang v Pendakwa Raya (K-05(M)-146-04/2022)

The High Court convicted the appellant for committing an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (‘DDA 1952’). He was charged with trafficking in 51,376.60 grams of methamphetamine at 9.30 a.m. on the 9 April 2018 at the Vehicle Inspection Lane of the ICQS Complex at Bukit Kayu Hitam in Kubang Pasu, Kedah. S/N yCI1/cjbaUyyotoCxZd5Q

The prosecution had called nine witnesses to testify. The High Court, at the end of the prosecution’s case, found that the prosecution had established a prima facie case against the appellant and called for the appellant to enter his defence.

The appellant testified under oath. He had also called another witness in support of his defence. The High Court, at the end of the defence’s case, held that the appellant had failed to raise any reasonable doubt and that the prosecution had succeeded in proving its case against the appellant beyond a reasonable doubt. He was convicted and sentenced to death by hanging. His appeal was against the conviction and sentence. The prosecution’s case

The charge against the appellant read as follows: "Bahawa kamu pada 9 April 2018, lebih kurang jam 9.30 pagi, di Lorong Pemeriksaan Kenderaan, Cawangan Pemeriksaan Penumpang, Kompleks ICQS Bukit Kayu Hitam, di dalam daerah Kubang Pasu, di dalam negeri Kedah Darul Aman telah mengedar dadah berbahaya iaitu Methamphetamine seberat 51,376.60 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh djhukum di bawah seksyen 39B(2) Akta yang sama".

On 9 April 2018 at approximately 9.30 a.m., Customs Officer Mohd. Aizudin bin Ahmad (SP8), along with Mohd. Zamir bin Zakaria (SP7) and several other Customs officers, conducted inspections at the S/N yCI1/cjbaUyyotoCxZd5Q passenger and vehicle lanes at the ICQS Complex at Bukit Kayu Hitam. They were tasked to inspect vehicles entering Malaysia from Thailand. During this inspection, they examined the appellant’s car, a Mercedes-Benz E280 with registration WSW 515 (‘the car’). The appellant was alone.

A preliminary inspection conducted by SP8 revealed a suitcase, two toy water pistols, and a plastic bag containing used clothing in the boot of the car. However, SP8 became suspicious as the boot appeared unusually small compared to that of a typical vehicle of the same model. SP8 then started to examine the boot more closely.

SP8 then asked his colleague, SP7, for assistance. They requested the appellant to open part of the boot, suspecting it was concealing a concealed compartment.

Initially, the appellant refused to comply, claiming that the compartment could not be opened and that it merely contained agricultural fertiliser. According to SP8, the appellant also attempted to offer him a sum of money in exchange for his release.

The appellant eventually relented and opened the compartment. Upon inspection, SP8 discovered several plastic packages in the concealed compartment. He suspected the contents were dangerous drugs. Consequently, he seized the car keys, the appellant’s international passport, and mobile phone. Acting under his superior’s instructions, SP8 directed that the appellant and the car be taken to the Royal Malaysian Customs Department’s S/N yCI1/cjbaUyyotoCxZd5Q Enforcement Branch Depot at Bukit Kayu Hitam for further examination.

SP7 and SP8 conducted a thorough inspection of the car at the Enforcement Depot in the presence of the appellant. They found seventy compact, heavy plastic packages in the concealed compartment. Small samples were taken from packages labelled A14 and A43, revealing crystalline powder. SP8 used a Thermo Fisher Scientific Handheld Narcotics Analyser for a preliminary test, which identified the crystalline substance as methamphetamine. Each package weighed approximately one kilogram.

The Investigating Officer (‘IO’) (SP9) subsequently sent the suspected drugs to the Chemist, Abd. Rahim bin Ismail (SP1) for analysis. SP1's analysis confirmed that the crystalline substance was methamphetamine, weighing 51,376.60 grams. The High Court’s finding at the end of the prosecution’s case Whether the drugs were dangerous drugs listed under the First

The defence raised two issues regarding SP1’s testimony:

There is no admissible evidence to prove that the impugned substance is dangerous drug; and

There was no explanation for the discrepancy between the gross weight and the net weight, which is 2,151.2 grams. S/N yCI1/cjbaUyyotoCxZd5Q

The High Court accepted SP1’s evidence and was satisfied that the drugs seized and the subject of the charge amounted to 51,376.60 grams of methamphetamine, which is regarded as a dangerous drug under the First Schedule of the DDA 1952.

Regarding the second issue, the High Court held that a mere discrepancy in the weight of the drugs is insufficient to challenge SP1’s analysis. The court noted that SP1 testified under oath and provided a detailed account of the procedures he followed before, during, and after analysing the crystalline substance. Consequently, the High Court was satisfied that SP1 presented the best evidence and accepted his testimony. Whether the appellant had possession and control of the drugs

The High Court referred to SP7 and SP8’s testimonies that the appellant was alone in the car when he was arrested, and it was confirmed with the Road Transport Department that the appellant was the registered owner of the car. Based on these factors, the court concluded that the appellant had possession and control over the car.

The High Court found SP8’s testimony credible and unchallenged. The court also referred to the appellant’s conduct described by SP7 and SP8 in their evidence and admitted it under Section 8 of the Evidence Act 1950 (‘EA 1950’).

The High Court found it difficult to believe that the appellant, who had possession and control of his own vehicle, was unaware of the S/N yCI1/cjbaUyyotoCxZd5Q existence of a concealed compartment in the boot. The court also observed that the appellant refused to open the compartment when asked by SP8 and made excuses for not doing so.

The High Court applied the presumption under Section 37(d) of the DDA 1952 to establish the appellant’s knowledge of the drugs. The appellant trafficked the drugs

The High Court was satisfied that the prosecution had successfully proven that the drugs seized, amounting to 51,378.60 grams of methamphetamine, are a dangerous drug listed under the First Schedule of the DDA 1952. The court was further satisfied that the prosecution had proven that the appellant was trafficking in the said drugs within the meaning of trafficking as defined under Section 2 of the DDA 1952. The High Court was therefore satisfied that the prosecution had established a prima facie case against the appellant and accordingly called upon the appellant to enter his defence. The Defence Evidence at the appellant (SD1)

The appellant chose to give evidence under oath. The appellant also called one other witness, Tan Tian Kai (SD2). The appellant’s defence, in gist, was as follows: S/N yCI1/cjbaUyyotoCxZd5Q

The appellant resided in Batu Pahat, Johor, and works as a vegetable farmer.

On 6 April 2018, the appellant drove the car from Batu Pahat to Thailand at the invitation of SD2 for the purpose of praying and sightseeing. SD2 had travelled to Thailand earlier, on 5 April 2018.

The appellant met SD2 and a business associate named Ah Wai, who is also a friend, in Thailand. However, Ah Wai was not called as a witness.

While in Thailand, Ah Wai was the one who drove the appellant’s car. On 8 April 2018, after breakfast, Ah Wai drove the car alone. The appellant stated that Ah Wai borrowed the car to take his girlfriend out for prayers and sightseeing, and kept it until the evening.

The appellant further claimed that Ah Wai frequently borrowed his car to take women out, both in Thailand and also in Malaysia.

The appellant also asserted that he had purchased the car more than two years earlier as a used vehicle, following Ah Wai's advice.

On the night of 8 April 2018, the appellant last saw Ah Wai when the latter returned the car to him in Dannok. They had planned to return to Malaysia separately and agreed to meet in Penang S/N yCI1/cjbaUyyotoCxZd5Q on 10 April 2018 for a meal. SD2 was scheduled to return to Malaysia in his own car on 9 April 2018.

The appellant stated that he did not notice anything unusual about the weight of his car. He observed that the boot appeared smaller compared to similar models, but admitted that he had never made a direct comparison. He further claimed that he was unaware of any concealed compartment in the boot, asserting that the compartment had been opened by the customs officer, SP8, and not by him. The appellant also denied having attempted to bribe the customs officers with RM30,000.00 or subsequently offering RM500,000.00 for his release, maintaining that he only had RM3,000.00 in his possession at the material time.

The appellant asserted that the drugs found in the car did not belong to him and claimed that he was unaware of how they came to be in the boot. He further stated that when Ah Wai returned the car, he neither inspected it before nor after, as he had not noticed anything unusual.

The appellant reiterated that he had no knowledge of the presence of any drugs in the boot of the car.

SD2 had known the appellant for approximately eleven years through their work-related dealings. The last occasion SD2 met the appellant was on 8 April 2018 in Dannok, Thailand. S/N yCI1/cjbaUyyotoCxZd5Q

(ii) SD2 travelled to Thailand on 5 April 2018. He had invited the appellant and Ah Wai to join him prior to his departure but the two only travelled on 6 April 2018.

(iii) SD2 travelled alone to Thailand, remained there for four days, and returned to Malaysia on 9 April 2018 using his international passport.

(iv) The appellant and Ah Wai travelled together in the appellant’s car.

While in Thailand, they moved around using the car, which was driven by Ah Wai.

(vi) On 8 April 2018, Ah Wai borrowed the car to take his girlfriend out and returned it to the appellant around 9.00 p.m. According to SD2, Ah Wai frequently borrowed the appellant’s car.

(vii) SD2 stated that he knew the appellant had been using the car for approximately two years, having purchased it through Ah Wai. He further stated that he had previously seen the boot of the appellant’s car and had not noticed anything unusual about it.

(viii) The three of them had planned to meet in Penang for drinks on 10 April 2018 after returning to Malaysia.

(ix) On 9 April 2018, the appellant returned to Malaysia alone, as Ah Wai preferred to travel separately. SD2 and the appellant S/N yCI1/cjbaUyyotoCxZd5Q departed Thailand independently. After crossing the border, SD2 attempted to contact the appellant several times, but his calls went unanswered.

Later that night, the appellant’s family contacted SD2 to inform him of the appellant’s arrest. SD2 also stated that he had attempted to contact Ah Wai, but his calls were not answered.

(xi) On 10 April 2018, SD2 finally managed to speak with Ah Wai, who admitted to having placed the drugs in the boot of the appellant’s car. Following this admission, Ah Wai terminated the call. The High Court’s findings at the end of the Defence case

After considering the appellant’s defence and the testimony of SD2, the High Court concluded that the appellant had placed the blame on Ah Wai, who was said to be his friend and an acquaintance of SD2. The appellant asserted that Ah Wai was the actual trafficker in this case.

The High Court considered whether Ah Wai genuinely existed and whether the defence had presented reliable evidence of his existence. The court concluded that proof of Ah Wai’s existence rested solely on the testimonies of the appellant and SD2. The court further observed that there was a complete absence of documentary evidence, such as hotel receipts, a passport, or testimony from Ah Wai’s family in Johor, to confirm either his existence or that he had S/N yCI1/cjbaUyyotoCxZd5Q travelled with the appellant to Thailand and stayed there for several days.

The High Court concluded that Ah Wai was a fictitious character, fabricated by the appellant and SD2 in an attempt to exonerate the appellant from the charge. The court held that if Ah Wai had indeed been the actual trafficker, it would have been highly improbable for him to allow the appellant to drive alone in a car containing drugs worth tens or even hundreds of thousands of ringgit. Accordingly, the High Court found that the alleged character of Ah Wai did not exist.

The High Court found that the appellant’s claim of being unaware of the concealed compartment was a fabrication, given that he had purchased and used the car for nearly two years. The court considered it unreasonable that the appellant had never inspected the boot during that period, particularly as it was his only vehicle. The prosecution witness, SP6, testified regarding similar vehicle models, namely the E200 CDI–E420, CDI/4 MATIC, and E200 KOMPRESSOR–E500/4 MATIC, and stated that their original trunks did not contain any screwed-on partition boards such as those found in the appellant’s vehicle.

Having considered these factors, the High Court concluded that the appellant had intentionally designed and constructed the concealed compartment for the purpose of transporting prohibited items, specifically the drugs involved in this case. S/N yCI1/cjbaUyyotoCxZd5Q

With regard to the evidence of SD2, the Court concluded that it did not support the appellant’s defence, as SD2 had admitted that he was unsure whether the appellant was involved in drug trafficking. The Court also noted that SD2 and the appellant were not together at all times while in Thailand.

Upon evaluating the appellant’s defence, the High Court found it to be lacking in credibility and tainted with elements of fabrication and afterthought. As the appellant had failed to shift the blame to the alleged real trafficker, the defence of being an innocent carrier could not be accepted by the Court.

The High Court was satisfied that the prosecution had succeeded in proving its case against the appellant beyond a reasonable doubt, as charged. The appellant was therefore found guilty and convicted as charged. Upon conviction, the High Court sentenced the appellant to death by hanging pursuant to Section 39B(2) of the DDA 1952. The appeal

The appellant has raised several grounds in support of his appeal. They are as follows: Misuse of the presumption of knowledge under Section 37(d) of the DDA 1952

The appellant contended that the learned trial judge had erroneously relied on both the conduct of the appellant under Section 8 of S/N yCI1/cjbaUyyotoCxZd5Q EA1950 and the presumption of knowledge under Section 37(d) of DDA 1952, without clearly distinguishing which ground was relied on in reaching the finding of possession and knowledge. The appellant highlighted that the trial judge had failed to make any finding at the close of the defence case as to whether the presumption had been rebutted. It was argued that this failure amounted to a serious misdirection by way of non-direction, as held in Seyedalireza Seyedhedayatollah Ehteshamiardestani v. PP [2014] 4 CLJ 406.

The appellant contended that the learned trial judge concluded that the prosecution had proven trafficking as defined under Section 2 DDA 1952, but did not specify which of the 18 statutory acts of trafficking was relied upon. The appellant also submitted that the learned judge also failed to provide any reasoning or evidential basis supporting the conclusion that trafficking had been established and that such an omission is fatal and amounts to a serious misdirection as held in PP v Mohammadreza Aslanzad & Anor [2016] 2 CLJ 62. Prosecution had failed to prove their case beyond reasonable doubt

The appellant argued that the prosecution’s case was flawed due to several significant defects, which raised a reasonable doubt. These include discrepancies in the gross weight of drug exhibits and gaps in the chain of evidence. S/N yCI1/cjbaUyyotoCxZd5Q Absence of mens rea and knowledge

The appellant contended that the drugs were discreetly concealed in a concealed compartment within the car’s boot, of which he was unaware. He asserted that there were no unusual features or indicators that would have aroused suspicion. The appellant challenged the prosecution’s assertion that he acted suspiciously when asked to open the concealed compartment, noting that these details were missing from the officer’s report and lacked supporting evidence, making the claims unreliable. He maintained that his calm and cooperative conduct supports his claim of ignorance regarding the drugs. Defence of innocent carrier

The appellant argued that he was an innocent carrier, deceived by Ah Wai. He claimed that Ah Wai was the actual trafficker, as he had borrowed the car and admitted to placing the drugs inside. This defence was consistently raised and supported by SD2. The appellant also stated that the prosecution failed to disprove this version, which goes against the principles outlined in Chan King Yu v PP [2009] 1 CLJ 601.

The issues raised by the appellant will be addressed in turn. S/N yCI1/cjbaUyyotoCxZd5Q Misuse of the presumption of knowledge under Section 37(d) of DDA 1952

The High Court was correct in concluding that the appellant had custody and control of the drugs found in the concealed compartment in the boot of the car, based on several factors. The appellant had been the registered owner of the car for about two years, during which the vehicle was in his sole possession. Furthermore, the appellant was driving alone when SP7 and SP8 approached him. The learned Judge’s findings on this matter were as follows: “32. Mengenai elemen ini, saya merujuk kepada keterangan SP7 dan SP8 sepertimana yang dinyatakan di dalam fakta-fakta kes di atas. Apa yang perlu ditegaskan adalah pada masa OKT ditahan, hanya beliau seorang sahaja yang berada di dalam kereta yang dipandu oleh beliau sendiri. OKT juga telah dibuktikan sebagai pemilik kepada kereta tersebut melalui semakan di Jabatan Pengangkutan Jalan (Ext. P80).

Berdasarkan kepada keterangan-keterangan ini, adalah jelas menunjukkan bahawa OKT adalah mempunyai jagaan dan kawalan ke atas kereta MB No. Pendaftaran WSW 515 tersebut.”

The learned Judge correctly invoked the presumption under Section 37(d) of DDA 1952 to impute knowledge to the appellant, as it has S/N yCI1/cjbaUyyotoCxZd5Q been established that the appellant had control and custody of the car where the drugs were found.

The learned Judge did discuss the appellant’s conduct while being questioned by SP7 and SP8, such as his denial of having any knowledge of the drugs found in the concealed compartment of the car’s boot, his refusal to open the concealed compartment when instructed by SP8 whilst claiming that it only contained fertilisers, and stating that these conduct are admissible under Section 8 of EA

In our opinion, it was perfectly acceptable for the learned Judge to discuss and analyse the other alternatives available to him when considering whether to invoke the presumption. In Raman Kunjiraman v PP [2014] 9 CLJ 915, the appellant contended that the trial Judge had misdirected himself when invoking the Section 37(da) DDA 1952 presumption and, in the alternative, the presumption under Section 37(d) of the Act. The Federal Court in its judgment held that it was acceptable for the trial Judge to analyse all the alternatives available to him under the Act and that Judges may expatiate on them. In that case, the apex court found that the trial Judge had decided on invoking the Section 37(da) presumption only.

The High Court Judge in this case clearly analysed the appellant’s behaviour when approached by SP7 and SP8. These actions could have been admitted as evidence under Section 8 of EA 1950. In our view, the trial Judge analysed the situation but chose to apply the presumption under Section 37(d) of DDA 1952. It would have been a misdirection warranting appellate interference if the Judge had S/N yCI1/cjbaUyyotoCxZd5Q relied on Section 8 of EA 1950 and invoked the Section 37(d) presumption. No such mistake occurred in this case.

The case of Seyedalireza (supra) is distinguishable as the trial court had invoked the presumption under Section 37(d) of DDA 1952 and at the same time the Section 37(da) presumption in the alternative. The Federal Court held that the trial court’s approach of relying on an alternative is undesirable as it reflects on the uncertainty on the trial court making a finding. We are therefore of the opinion that the learned High Court Judge had made a positive finding on custody and control and was justified in raising the statutory presumption under Section 37(d) DDA 1952 based on the evidence.

The relevant passage of the High Court’s judgment on this issue is as follows:

Seterusnya mengenai elemen pengedaran dadah, saya berpuashati bahawa OKT telah dibuktikan oleh pihak pendakwaan mengedar dadah tersebut sepertimana takrifan "pengedaran" menurut sek. 2 ADB 1952.

Although the learned Judge did not specify which act of trafficking he relied on to make a finding of trafficking, it is incumbent on us to make a finding based on the evidence, as we are empowered to review and evaluate the evidence available. The Federal Court in Ahmad Najib Aris v PP [2009] 2 CLJ 800 held: S/N yCI1/cjbaUyyotoCxZd5Q “As regards the first main ground of appeal raised by the appellant. I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence available as adduced by the prosecution. The Court of Appeal is in a position to do so in the present case though the grounds of decision of the trial judge as appearing in the appeal records is found lacking in specific findings and with no reasons for the findings.

There are eighteen acts of trafficking under Section 2 DDA 1952. An act of trafficking must go beyond mere possession; Ong Ah Chuan v PP [1981] 1 MLJ 64. This Court in Sia Swee Siong v PP [2018] 1 CLJ 647 held that the requirement of an overt act to constitute trafficking includes factors such as the amount of drugs involved and the evidence of the drugs brought from one country to another. The Federal Court in PP v Abdul Manaf Muhammad Hassan [2006] 2 CLJ 129 held that “where large quantity of drugs are involved, it cannot be seriously contended that the drug was for the accused’s own consumption.”.

In our judgment, the fact that the appellant drove the car from Thailand to Malaysia, combined with the drugs weighing 51,376.60 grams, constituted an act of trafficking as defined under Section 2 DDA 1952. We would also add that the weight of the drugs suggests it was unlikely for his personal consumption, and more likely intended for trafficking. S/N yCI1/cjbaUyyotoCxZd5Q Prosecution had failed to prove their case beyond reasonable doubt

One of the issues raised by the appellant concerned the identification of the drug exhibit. The appellant pointed out that the seventy packages seized weighed 70 kilograms when initially weighed by SP8. This weight was also recorded in SP8’s police report and “Borang Serahan Kes.” However, the seized drugs weighed 72,151.20 grams when weighed by SP1 (the Chemist). The appellant argued that the significant discrepancy of 2,151.20 grams was a serious issue and that the respondent had provided no explanation at trial, which cast doubt on the identity of the seized drugs. Learned counsel for the appellant cited the case of Zaifull Muhammad v PP & Anor [2013] 2 CLJ 383, where the court held that any substantial discrepancy in weight could question the identity of the drug exhibit unless satisfactorily explained.

In our judgment, the minor variance between the weights recorded by PW8 and PW1 has been adequately explained. PW8’s weighing was approximate, using an analogue weighing machine, whereas PW1’s weighing was precise, employing a government-issued calibrated machine. Furthermore, PW8 testified that he had provided an estimated weight of 1 kilogram for each packet of drugs, unlike PW1, whose method of weighing was more accurate. The difference between the gross weight and the actual weight was of no serious consequence, as it was the weight measured by PW1 that forms the basis of the charge. The Federal Court in Hasbala Mohd Sarong v PP [2013] 6 CLJ 945 held: S/N yCI1/cjbaUyyotoCxZd5Q “At this juncture, we might hasten to also add that the weighing process by the police is not the determining factor in the weight of the drugs, rather it is the weighing done by the chemist which determines the actual weight of the drugs and forms the basis of the charge. It is common knowledge that the weighing process undertaken by the police after the seizure of the drugs is only for classification purposes in the determination of the charge that will be most likely to be preferred against the accused and/or arrested person. More often than not the disparity in weight of the drugs recorded is inevitable due to difference weighing methods preferred and the difference weighing apparatus used by the police force and the chemist department.”

The appellant also alleged that there was a break in the chain of evidence of the drugs seized. SP8 testified that the seized drugs were left in the care of SP4 and SP2 (Customs officers) when he went to lodge a police report at the Bukit Kayu Hitam police station. The appellant highlighted several matters to show that there was a break in the chain of evidence:

Both SP4 and SP2 made no mention of being instructed by SP8 to take care of the seized drugs; and

(ii) SP8 claimed that he handed over seized drugs to SP9 (IO) on the same day at around 3.30 p.m. where else SP9’s “Borang Serahan Kes” showed 3.00 p.m. on 10 April 2018. The appellant submitted that the discrepancies as to time that the drugs were handed over to SP9 have resulted in a serious break S/N yCI1/cjbaUyyotoCxZd5Q in the chain of evidence had cast a real and reasonable doubt on the identity of the drugs seized.

We find that the Respondent has demonstrated that all exhibits were properly marked and identified by the relevant witnesses, namely PW8, PW9 and PW1. Each officer had identified his signatures and markings on the exhibits. The transfer of the exhibits was also properly documented via the “Borang Serahan Kes” and “Borang Bongkar”, and the relevant application and receipt forms tendered in evidence.

The learned Judge had considered these issues comprehensively and made specific findings at paragraphs 21, 22, 27 and 28 of his judgment that the chain of custody was intact and that the identity of the exhibits was satisfactorily established. In our judgment, there was no break in the chain of evidence that could have created a reasonable doubt regarding the identity of the drug exhibits.

The appellant argued that drugs were well concealed in the boot of the car, raising reasonable doubt about whether the appellant was aware of the existence of the concealed compartment, let alone the drugs within it. The appellant also asserted that even the report from Mercedes Benz Malaysia stated that no visible modifications had been made.

We find that the learned Judge had satisfactorily dealt with this issue by finding that it was unreasonable for the appellant to feign S/N yCI1/cjbaUyyotoCxZd5Q ignorance of the concealed compartment in the boot of the car, particularly when he had been using the car for nearly two years. Furthermore, the learned Judge had highlighted the fact that the appellant had initially refused to open the concealed compartment when directed by SP8. This could only mean that the appellant was aware of the concealed compartment. We find no compelling reasons to disturb the learned Judge’s finding of facts. Defence of innocent carrier

The Appellant’s defence was mainly based on his supposed ignorance of the drugs and his claim that one “Ah Wai” had put the drugs in the car without his knowledge.

The learned Judge found this version entirely unconvincing. The appellant did not provide any details, contact information, or supporting evidence about Ah Wai, despite claiming to have known him for years as a friend and business associate. PW9 also testified that the appellant had never given any information regarding Ah Wai to him, such as details about his travel to Thailand with Ah Wai, his phone number, or his location. In the case of Nenggani Asmo v PP [2024] 1 MLJ 501, the court addressed a similar defence, concluding that an accused’s failure to provide information about the alleged trafficker justifies the trial Judge in suspecting the defence. The relevant passage is as follows. “[26] We do not find any merit in this argument. In the first place, as a matter of general principle, a court is unconstrained to view with suspicion the defence of an S/N yCI1/cjbaUyyotoCxZd5Q accused if the accused failed to provide relevant information for the police to carry out investigation into the probability of the defence. Such a failure may affect the weight that the court attached to the accused's defence. In the case of Teng Howe Sing v. PP [2009] 3 CLJ 733; [2009] 1 LNS 36, the appellant was charged with the offence of trafficking in dangerous drugs under the Act. The appellant and his college mate (PW12) were both arrested by the police in an ambush. The appellant, upon hearing shouts of the police, threw away a package that he had collected from a courier service company. In obtaining the package, the appellant had signed the name "Ling Hang Wei" instead of his own on a copy of the Consignment Note (exh P4). The package was found to contain 371.12 grammes of cannabis and the appellant was charged accordingly. The High Court convicted and sentenced him to death and his subsequent appeal to the Court of Appeal was dismissed. In his appeal to the Federal Court, one of the grounds advanced by the appellant was that the Court of Appeal erred in law in not directing its mind sufficiently on the serious misdirection by the trial judge, who had imposed on the appellant a duty to disclose relevant information, in particular regarding a person named 'Ho Seng' (who allegedly requested the appellant to collect the package containing the drugs), in his cautioned statement to the police. In dismissing this argument, Zulkefli Makinudin FCJ (as His Lordship then was) in delivering the judgment of the Federal Court said: S/N yCI1/cjbaUyyotoCxZd5Q "In Badrulsham's case, the court was of the view that the failure of the accused to inform the raiding officers that the white plastic bag belonged to Noor Azlan at the time of his arrest and after his arrest, goes some way to support the case for the prosecution. Applying the principle in Badrulsham's case to the facts of the instant case, the learned trial judge was correct to conclude that the appellant had two opportunities to provide information about 'Ho Seng', ie, at the time of his arrest and five days later during recording of his cautioned statement but he failed to do. We are therefore of the view that in the circumstances, the appellant's failure to provide relevant information about 'Ho Seng' for the police to carry out investigation into the probability of his defence, entitled the trial judge to disbelieve him." …….. [28] In her cautioned statement, the appellant pointed all the blame to Deta. It is her version that she was deceived by Deta to carry the dangerous drugs and that she was arrested for an offence she did not commit. It is therefore only reasonable to expect that after her arrest she would provide all relevant information regarding Deta to the police. The appellant had this opportunity when gave her cautioned statement to Inspector Zulkifli bin Ariffin (PW7) on 23.3.2009, about 6 days after her arrest. The appellant disclosed to PW7 the name Deta but she never gave any further information about Deta. S/N yCI1/cjbaUyyotoCxZd5Q It is incredible that she would forgo the opportunity to disclose to PW7 everything she knew about Deta if what she said about Deta's involvement was true. Surely, police investigation into Deta depended very much on the necessary information provided by the appellant. ……..“ [29] In the circumstances of this case, the learned judge is entitled and justified to view with suspicion the defence of the appellant given that she had failed to provide relevant information about Deta for the police to carry out investigation into the probability of her defence. We found that the learned judge had not misdirected herself on the law…” (emphasis added)

The learned Judge further noted that it was unlikely for the appellant to have owned and driven the car for two years without knowledge of a concealed compartment in the boot. The court correctly considered the alleged existence of Ah Wai as a fabrication and an afterthought, especially since the Appellant had failed to mention Ah Wai’s involvement at the earliest opportunity. The appellant could have easily informed PW8 that Ah Wai had used his car and that the drugs could have been the result of Ah Wai’s actions.

We also concur with the learned Judge’s finding that it was an incredulous proposition that Ah Wai would have allowed the appellant to drive the car carrying drugs that are worth so much without the appellant’s knowledge. S/N yCI1/cjbaUyyotoCxZd5Q DW2’s testimony added no weight to the defence as he also failed to corroborate Ah Wai’s existence. He admitted that he was not present at all material times and did not lodge any report despite allegedly being told by Ah Wai that he had placed the drugs in the car. The learned Judge was justified in dismissing DW2’a testimony as unreliable and self-serving.

It is established that a court may view with suspicion a defence lacking evidence or behaviour consistent with innocence; Nenggani Asmo v PP (supra) and Teng Howe Sing v PP [2009] 3 CLJ 733.

Suppose Ah Wai truly existed, the fact remains that the Appellant was physically in possession and control of the car at the relevant time. Possession differs from ownership, so knowledge can be inferred from possession alone, as established in PP v Denish Madhavan [2009] 2 CLJ 209. The learned Judge’s inference of knowledge was therefore well-founded.

We are disinclined to disturb the findings of fact made by the learned Judge, as we have not found any evidence to suggest that the learned Judge’s analysis of the facts was erroneous. The Federal Court in Tan Kim Ho & Anor v Public Prosecutor [2009] 3 MLJ 151 held: “It is an established principle of law that when dealing with finding of facts, the trial judge is more often than not, in a better position to decide. The appellate court must be reluctant to interfere with such findings, unless the facts obviously disclose the courts below had clearly and wrongly evaluated the facts.” S/N yCI1/cjbaUyyotoCxZd5Q

We are of the view that the learned Judge’s omission to expressly state that the presumption of knowledge under Section 37(d) DDA had not been rebutted does not prejudice the Appellant. As submitted by the Respondent, this omission inured to the Appellant’s benefit, as the learned Judge would have applied a lower standard of “reasonable doubt” rather than “balance of probabilities”.

The appellant was sentenced to death by hanging upon conviction, pursuant to Section 39B(2A)(d) of DDA 1952. The High Court’s decision was delivered on 27 March 2022, which was before the advent of Section 54 and 55 of the Abolition of Mandatory Death Penalty Act 2023, which came into force on 4 July 2023.

The appellant had sought for the death sentence imposed to be substituted with the punishment of imprisonment for life and a minimum of twelve strokes of the cane. The respondent had no objections.

We therefore allowed the appellant’s appeal against the sentence and replaced the death sentence imposed by the High Court with thirty years' imprisonment starting from the date of arrest. The appellant is spared from whipping as he was over 50 years of age. S/N yCI1/cjbaUyyotoCxZd5Q

We are unanimously of the view that there was no error on the part of the learned Judge in his findings regarding the appellant’s defence, as they were entirely based on the evidence adduced before him and supported by the relevant legal principles. We find the conviction safe as there are no reasons for us to disturb those findings. The appellant’s appeal against conviction is therefore dismissed. The appellants appeal against sentence however is allowed as we have substituted the death sentence passed by the High Court with thirty years imprisonment commencing from the date of arrest. The appellant’s appeal is therefore allowed in part. Dated: 16 October 2025 -sgd- (MOHAMED ZAINI MAZLAN) JUDGE COURT OF APPEAL MALAYSIA Counsel for the Appellant : Chong Kak Sen & Belinda Low Messrs Gooi & Azura Counsel for the Respondent : How May Ling Attorney General’s Chambers S/N yCI1/cjbaUyyotoCxZd5Q