Khoo Teik Chye v Pendakwa Raya (P-05(M)-486-09/2018)

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IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEALS Nos.: P-05(M)-485-09/2018 P-05(M)-486-09/2018 P-05(M)-487-09/2018 P-05(SH)-503-10/2018 P-05(M)-506-10/2018 and P-05(M)-507-10/2018

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(ii) Perbicaraan Jenayah No. PA-45A-32-06/2017; and

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(iii) Perbicaraan Jenayah No. PA-45A-33-06/2017. [6] In the 3 cases abovementioned, the Appellants/Accused were jointly charged under section 39B (1) (a) of the Dangerous Drugs Act 1957 (the DDA) and also under section 12 (2) of the same Act, read with section 34 of the Penal Code 1950. They claimed trial to the said charges. [7] The charges (in Bahasa Malaysia), against the Appellants/Accused are as follows: Tuduhan Pertama ( $ 1^{st} $ Charge) "Bahawa kamu bersama-sama pada 25hb Mei 2015, jam lebih kurang 5.20 petang, di alamat No. 17, Lorong Padang Tembak, 11400 Pulau Pinang di dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang, dengan niat bersama telah memperedarkan dadah berbahaya iaitu, sejumlah 879.2 gram dadah jenis monoacetylmorphines dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 38B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan." Tuduhan Kedua ( $ 2^{n d} $ Charge) "Bahawa kamu bersama-sama pada 25hb Mei 2015, jam lebih kurang 5.20 petang, di alamat No. 17, Lorong Padang Tembak, 11400 Pulau Pinang di dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang, dengan niat bersama telah memperedarkan dadah berbahaya iaitu sejumlah 17.4.2 gram dadah jenis morphine dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 38B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan." Tuduhan Ketiga ( $ 3^{rd} $ Charge) "Bahawa kamu bersama-sama pada 25hb Mei 2015, jam lebih kurang 5.20 petang, di alamat No. 17, Lorong Padang Tembak, 11400 Pulau Pinang di dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang, dengan niat bersama telah memperedarkan dadah berbahaya iaitu sejumlah 77 gram dadah jenis heroin dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 38B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan." Tuduhan Keempat ( $ 4^{th} $ Charge) "Bahawa kamu bersama-sama pada 25hb Mei 2015, jam lebih kurang 5.20 petang, di alamat No. 17, Lorong Padang Tembak, 11400 Pulau Pinang di dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang, dengan niat bersama telah memperedarkan dadah berbahaya iaitu sejumlah 64.7 gram dadah jenis ketamine dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 38B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan." Tuduhan Kelima ( $ 5^{th} $ Charge) "Bahawa kamu bersama-sama pada 25hb Mei 2015, jam lebih kurang 5.20 petang, di alamat No. 17, Lorong Padang Tembak, 11400 Pulau Pinang di dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang, dengan niat bersama telah memiliki dadah berbahaya iaitu sejumlah 25.9 gram dadah jenis 3,4-methylenedioxymethampphatemine dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A (1) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan." BACKGROUND FACTS: THE CASE FOR THE PROSECUTION: [8] The Prosecution called 9 witnesses (PW1 to PW9). The relevant and material evidence adduced through the said witnesses are as succinctly set out by the learned High Court Judge (HCJ) at paragraphs 3 to 20 of his Lordship's Grounds of Judgment (GOJ) (Rekod Rayuan Tambahan referred to). Briefly, the material/relevant evidence are:

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(ii) After about 10 minutes, at about 5.30 p.m, PW5 saw 3 men (later identified as the $ 1^{st} $ to $ 3^{rd} $ Accused) exiting the said house. The $ 1^{st} $ Accused was seen locking the front door to the said house. Simultaneously and on PW5's order, his team pounced on the Accused and apprehended them. PW5 and his team then identified themselves as police officers. Upon hearing that, the Appellants /Accused tried to run away through the back of the house but were caught and arrested. They looked scared and pleaded to be released.

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(iii) PW5 recovered a bunch of keys (Exhibits "P68A [1-3]") and a remote control (Exhibits "P68") from the $ 1^{st} $ Accused. Using the keys, PW5 and his team entered the said house, bringing in the Appellants/Accused with them. PW5 did not find anything incriminating on the $ 2^{nd} $ and the $ 3^{rd} $ Accused.

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(iv) Inside the house, PW5 and his team proceeded to inspect the living area at upper floor. There, they recovered and seized drugs, utensils/apparatus which they suspected were used to process/manufacture the drugs. PW5 also seized clothes, pants and towels which he suspected were used/worn by the Appellants/Accused. All the items recovered and seized from the said living area are as per tendered and marked as exhibits at paragraph 9 GOJ.

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(vi) For all the items seized, PW5 prepared a Search List (Exhibit "P63"). All the seized items, together with the Appellants/Accused were thereafter handed over to Insp. Brine Biku (PW9), the Investigation Officer.

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(vii) After having marked the items, PW9 then handed the items to Jabatan Kimia Malaysia Pulau Pinang for analysis by Pn Afizawati@Halimah Binti Ayub (PW4), the Chemist.

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(viii) After having analysed the said items, PW4 prepared a Chemist Report (Exhibit "P55"). In a nutshell, upon analysis of the drugs items handed over by PW9, PW4 made the following findings/conclusions:

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(ix) PW9 suspected that the house was used as a drug laboratory. So, on 26.5.2015, he requested PW4 to carry out tests on the house. Having examined the said house, PW4 found the upper floor to be contaminated with drugs residues/powders. PW4 detected heroin, monoacetylmorphine and caffeine residues at various places at the upper floor. For the test/examination carried out, PW4 prepared a Report (Exhibit "P52").

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(ii) According to the $ 1^{st} $ Accused, in April 2015, he was with the $ 2^{nd} $ Accused in the said house to install air-conditioners, cabinets and curtains and also to clean it up as requested by 'Ah Lon'. For that purpose, they had used the gloves and the cloth found inside the house. They also had used the bathroom to wash.

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(iii) The $ 1^{st} $ Accused further added that on 25.05.2015 at about 4.30 p.m. whilst he was with the $ 2^{nd} $ and $ 3^{rd} $ Accused at 'Ah Boo' coffee shop, they were confronted by 4 policemen who asked them of the whereabout of 'Ah Lon'. They then took the police to the house. Upon arrival at the said house, the $ 1^{st} $ Appellant/Accused noticed a motorcar being parked in front of the house. He saw the police forced open the door to the said motorcar and took out a bunch of keys which were then used to open the gate and doors to the house.

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(iv) According to the $ 1^{st} $ Accused, they were then brought inside the house and asked to wait at the hall whilst the police went upstairs. After that, the police came down, arrested them and brought them back to the police station.

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(ii) According to the $ 2^{nd} $ Accused, on 25.05.2015 he had met up with the $ 1^{st} $ Accused and Khoo Teik Chye (the $ 3^{rd} $ Accused) to discuss on another cleaning job. Whilst they were chatting away, the police came and asked for the whereabout of 'Ah Lon'. They then led the police to the said house. At the said house, the police forced open the door of a Nissan Teana motorcar which was parked in front of the said house and took out a remote and a bunch of keys. The police then used the remote and the keys to open the doors to the house. They were then brought inside the house and were told to stand and wait at the main hall downstairs whilst the police went upstairs. Later the police came down. The police did not bring down anything with them.

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(ii) Further, according to the $ 3^{rd} $ Accused, on 25.5.2015, whilst he was with the $ 1^{st} $ and the $ 2^{nd} $ Accused at a coffee shop ('Ah Boo's Coffee Shop), they were approached by a group of policemen asking about the whereabout of 'Ah Lon'. They then brought the police to the house. Upon arriving at the house, the police had forcefully opened the door of a Nissan Teana motorcar that was parked in front of the house. According to the $ 3^{rd} $ Accused, he saw the police recovered a bunch of keys and a remote from inside the motorcar. The police then used the said keys to enter into the house. Thereafter, according to the $ 3^{rd} $ Accused, they were brought inside the said house, were made to wait downstairs while the police went upstairs. Later the police came down. They were then arrested and taken back to the police station.

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(ii) that the Appellants/Accused were in possession of the said drugs;

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(iii) that the Appellants/Accused were in possession of the drugs for the purpose of trafficking (for the charges of trafficking $ - 1^{st} $ to $ 4^{th} $ Charges). [20] Being dissatisfied, the Appellants/Accused appealed to the Court of Appeal. Hence, the 4 Appeals before us herein where counsels for the Appellants/Accused and the Deputy Public Prosecutor for the Respondent made the following submissions: SUBMISSIONS AT THE APPEAL STAGE:

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(ii) to prove the elements/ingredients of trafficking;

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(iii) to investigate the Sub-Tenancy Agreement;

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(iv) to consider the testimony/evidence of DW5;

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(ii) Whether the Appellants/Accused had possession of the said drugs?

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(iii) Whether manufacturing/processing of drugs by the Appellants/Accused had been proved?

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(iv) Whether common intention under section 34 of the Penal Code proven?

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(vi) Whether there was misdirection of fact and/or of law by the learned HCJ? DECISION OF THIS COURT: [25] To begin with, even though it is trite, we would reiterate that for the offence of trafficking in dangerous drugs under section 39B (1) (a) DDA 1952, burden lies on the Prosecution to prove beyond any reasonable doubt, the following ingredients/elements:

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(ii) that the Appellants/Accused had in possession of the said drugs; iii) that the Appellants/Accused were in possession of the drugs for the purpose of trafficking. [26] As for the offence of illegal possession of dangerous drugs under section 12 (2) DDA 1952, the Prosecution must prove beyond any reasonable doubt, the following ingredients/elements:

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(ii) that the Appellants/Accused had without lawful authority, in possession of the said drugs. Ruling on credibility and evidence/testimonies of the witnesses: [27] At the outset, it is pertinent to point out that the learned HCJ accepted the evidence/version of the Prosecution. The learned HCJ found their witnesses to be credible and truthful as compared to the witnesses of the Appellants/Accused. The acceptance of the Prosecution's witnesses' testimonies formed the foundation of the learned HCJ's findings and rulings on the issues abovesaid. [28] Having had the opportunity to hear, to observed and to analysed the witnesses first hand, in our view, the learned HCJ is the ideal person to make the findings as he did. We find that the Appellants/Accused failed to show in what way the learned HCJ has erred or has misdirected himself in accepting the testimonies of the witnesses for the Prosecution and in rejecting the witnesses for the Appellants/Accused. Issue (i): Whether the drugs recovered from the house are dangerous drugs as defined under the DDA 1952? [29] The learned HCJ accepted the Chemist's (PW4) finding that the drugs analysed by her to be dangerous drugs as defined under section 2 DDA 1952. PW4 confirmed the said drugs to be the following:

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(ii) 17.4 gm Morphine;

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(iii) 77.0 gm Heroin;

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(iv) 64.7 gm Ketamine; and

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(vi) 9.4 gm Methamphetamine. [30] It is noteworthy that the evidence and the findings by PW4 abovementioned are not credibly challenged by the Appellants/Accused. The expertise of PW4, the methodology and procedures adopted in analysing the drugs and her findings as per in her Chemist Report (Exhibit "P55") remained unchallenged. The Appellants/Accused did not raise issue pertaining to the seizure/recovery of the drugs from the said house. There was no credible challenge by counsels as to the identity and the chain of evidence of the said drugs. The drugs seized by the police from the house and the ones analysed by the Chemist (PW4) and the ones tendered as exhibits in Court are the same ones. We are unable to find any error in the learned HCJ's finding that the drugs (Exhibits "P12(1-27)[C])", "P21(1-4[A])", "P22(1-4[A])" seized from the house are dangerous drugs as defined under the DDA 1952. Thus, we concurred with the learned HCJ's finding that the Prosecution had succeeded in proving element/ingredient (i). Issue (ii): Whether the Appellants/Accused had possession of the said drugs? [31] Possession encompasses the elements of custody, control and knowledge of the drugs as decided over the years by our Courts amongst others in the evergreen cases of Chan Pean Leon v PP [1956] 22 MLJ 237 and Leow Nghee Lim v R [1956] MLJ 28. [32] As for possession of the drugs in our case, the evidence of the Prosecution and the Appellants/Accused are in direct contrast. The Prosecution's version is that: At the material time, the $ 1^{\mathrm{st}} $ Accused is the tenant and occupier of the said house and that all the Appellants/Accused were apprehended by the police at the house, just a moment after they were seen exiting the house. The $ 1^{\mathrm{st}} $ Accused was seen locking the front door and the house keys were seized from the $ 1^{\mathrm{st}} $ Accused. According to the Prosecution, the Appellants/Accused attempted to flee but were thwarted by the police. There was no one else in the house then. [33] The Appellants/Accused, on the other hand, denied the version by the Prosecution above. Firstly, the 1 $ ^{st} $ Accused denied being the occupier or the tenant of the house at the time of arrest. Secondly, the Appellants/Accused testified that they were caught/arrested elsewhere i.e, at a furniture store at No. 520-B Jalan Ayer Itam, Pulau Pinang and not at the house. Thirdly, as to the house keys, Appellants/Accused claimed that they were recovered by the police from inside the motorcar (Nissan Teana) which was being parked in front of the house at the time of the raid and not from the hands of the $ 1^{\mathrm{st}} $ Accused as alleged by the Prosecution's witnesses. [34] The $ 1^{\mathrm{st}} $ Accused did not deny renting the house from its landlord (PW8). The authenticity and legality of the Tenancy Agreement (Exhibit "P72") were never in question. However, the $ 1^{\mathrm{st}} $ Accused claimed that subsequent to the said agreement, he had sub-let the house to one "Goh Wei Lon" (Ah Lon). He adduced the Sub-Tenancy Agreement between himself and 'Ah Lon' (Exhibit "P74A") to show that at the time the house was raided, the tenant was Goh Wei Lon (Ah Lon) and not him. [35] Counsel submitted that the Prosecution failed to challenge and disprove the existence of the Sub-Tenancy (Exhibit "D74A") between the $ ^{1 \mathrm{st}} $ Accused and Ah Lon. No investigation was carried out by the police upon being informed of the said document. Counsel submitted that DW5 corroborated the defence that at the time of arrest and raid, 'Ah Lon' was the tenant of the said house and that the Appellants/Accused were arrested elsewhere and not at the house. According to counsel, the Appellants/Accused were not the occupiers nor the tenants but were only visitors to the house at the time of the raid. [36] Therefore, based on the abovesaid, counsel submitted that the Appellants/Accused could not be said to be in control, custody and possession over the drugs found in the said house. [37] In accepting the evidence/version of the Prosecution, the learned HCJ found that Appellants/Accused had custody, control and knowledge of the said drugs. The learned HCJ accepted the following evidence/facts by the Prosecution's witnesses, namely, that:

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(ii) the keys to the house were seized from the $ 1^{st} $ Accused;

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(iii) the $ 2^{n d} $ and $ 3^{r d} $ Accused exited the house together with the $ 1^{s t} $ Accused;

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(iv) the Appellants/Accused attempted to run away and looked frightened;

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(vi) DNA profiles of the Appellants/Accused were found on the 3 pairs of gloves, damp pants and towels found inside the house;

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(vii) the drugs were not hidden and can be seen openly;

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(viii) drugs residues/stains are found on the 3 pairs of gloves. [38] The learned HCJ's finding on possession is as per paragraphs 58, 59, 62, 63, 64, 65, 67 and 94 of the GOJ. According to the learned HCJ, the evidence taken as a whole proved that at the material time, the Appellants/Accused were in possession of the drugs seized. The learned HCJ ruled that the Tenancy Agreement (Exhibit "P72") coupled with the house keys (Exhibit "P68A[1-3]") and remote (Exhibit "P68") which were seized from the 1 $ ^{st} $ Accused, showed that the 1 $ ^{st} $ Accused was the occupier and tenant of the said house. The learned HCJ was of the view that the fact that PW8 cannot recognise the 1 $ ^{st} $ Accused as his tenant and the house keys (Exhibit "P68A[1-3]") is insignificant and does affect the overwhelming evidence of the Prosecution. [39] We noted that for all the issues relating to possession abovesaid, the learned HCJ had carried out his analysis of the evidence, wholly and thoroughly. We find there was a proper judicial appreciation of the evidence by the learned HCJ before coming to his findings. Hence, we do not find any lack of judicial appreciation of the evidence on the issue of possession by the learned HCJ as contended by the Appellant/Accused. Thus, we find no reason to interfere with the learned HCJ's findings as to the credibility of the witnesses and the weightage of their evidence/testimonies. [40] After having considered the evidence as a whole, based on the totality of evidence and detailed grounds of the learned HCJ as per the GOJ, we are not persuaded by the submissions of counsel for the Appellants/Accused. We are in concurrence with the views and findings of the learned HCJ. We are like-minded with the HCJ's findings and decision. We find that possession of the said drugs by the Appellants/Accused was successfully proved by the Prosecution. We find that the learned HCJ did not commit any error in his finding of facts and of law in respect to issue of possession. Thus, we also find element/ingredient (ii) had been proven. Issue (iii): Whether manufacturing/processing had been proved? [41] Broadly speaking, the Prosecution alleged that Accused had committed the offence of trafficking via their specific act of manufacturing/processing the seized drugs. The Prosecution relied on section 2 DDA 1952 which provides 'trafficking': "includes the doing of any of the following acts, that is to say, manufacturing...". [42] Learned counsel submitted that the Prosecution failed to prove manufacturing of the drugs seized from the house based on the unchallenged fact that the only chemical found by the police during the raid is chloroquine. The police did not recover any cutting agent commonly used to process heroin, nor any chemical used to process morphine into heroin, monoacetylmorphine, morphine and ketamine. Simply put, counsel argued that without the cutting agent, it is impossible for the Appellants/Accused to manufacture drugs. Also, according to counsel no traces of drugs stains/residue were detected on the Appellants/Accused. [43] The learned HCJ was not with counsel on this. We agreed with the learned HCJ that the element of manufacturing had been proven. In our considered view, pertaining to the absence of any cutting agent, the findings of the Chemist (PW4) that the drugs recovered from the house are dangerous drugs as defined under the DDA 1952, is most relevant to issue at hand. Another relevant piece of a crucial unchallenged evidence is the fact that at the time of the raid, the police recovered drugs in the form of pills, still damp being left on the floor to dry, as can be observed per the photographs (Exhibits P6[21-24] - Rekod Rayuan Jilid 3 pages 26-27). The damp pills were later analysed and confirmed by the Chemist to be dangerous drugs as defined under the DDA 1952. As noted by us earlier when answering Issue (i) aforesaid, the said finding by the Chemist remained intact. [44] In our view, the fact that the pills were still damp at the time of the police raid, the first irresistible conclusion that can be drawn is that the pills were processed/manufactured shortly before being left to dry in the open on the upper floor of the said house. So, taking things in totality, in our view, in the circumstances, the irresistible explanation/conclusion that can be drawn on the absence of any cutting agent is that, the cutting agent and chemicals must have all been used up in the processing/manufacturing of the said pills. As such, we are unable to agree with the submission by counsel that the absence of cutting agent and the requisite chemical disproved any activity of manufacturing in the house at the material time. [45] Related to the abovesaid issue, the absence of drug stains/residue on the Appellants/Accused, the learned HCJ opined and concluded that the absence of drug stains/residue on the Appellants/Accused was because they had washed and cleaned themselves. According to the learned HCJ, the recovery of damp towels which were left to dry in the said house, showed that the Appellants/Accused had washed and cleaned themselves. Counsel submitted that the said view/finding of the learned HCJ was purely speculative and not backed by evidence. [46] With respect, we are unable to accept the said submission by counsel. In our considered view, the learned HCJ's finding is not speculative. The fact that the towels were still wet/damp must necessarily show that they were recently used by someone, shortly before the raid by the police. As alluded to by the witnesses for the Prosecution, no one else but the Appellants/Accused were seen exiting the house. This fact, coupled with the fact that DNA profiles belonging to the Appellants/Accused were found on the towels, in our view, irresistibly pointed to the fact that the towels must have been used by them. Therefore, in our view, the learned HCJ's finding is based on all the circumstantial evidence tendered to the Court and not based on mere speculation, as claimed by counsel. [47] Thus, we are in full agreement with the learned HCJ's finding at paragraph 76 of the GOJ that there were overwhelming circumstantial evidences to prove the offence of manufacturing by the Appellants/Accused of the drugs seized, as defined under section 2 DDA 1952 which stipulates the term 'manufacture" to include: "(a) the making, producing, compounding and assembling the drug;

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(ii) Failure to investigate the Sub-Tenancy Agreement.

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(iii) Failure to consider the testimony/evidence of DW5. [52] Having perused the GOJ, we agreed that the learned HCJ did rule that the defence of Appellants/Accused is one of alibi under section 402A of the CPC and further ruled that no statutory Notice was given by the Accused. Based on the decision in Vasan Singh v Public Prosecutor [1988] 3 MLJ 412 and Ku Lip See v Public Prosecutor [1982] 1 MLJ 194, his Lordship did not consider the defence of alibi, as can see in paragraphs 156 to 160 of the GOJ. [53] Based on the testimonies of the Appellants/Accused wherein all of them denied being arrested at the house and instead claimed to have been arrested elsewhere, based on the principle enunciated in Vasan Singh v Public Prosecutor [supra] and Ku Lip See v Public Prosecutor [supra], in our view, the learned HCJ was correct to rule that the defence was one of alibi. [54] Now, even if we were to accept counsels' contention that the defence is not one of alibi, we are unable to agree with counsel's submission that the learned HCJ did not adequately consider the defences of the Appellants/Accused because, having read through in totality the learned HCJ's GOJ, in particular to paragraphs 155,156,157,158,159 and 160 GOJ, it is apparent, the learned HCJ did not constrict his rejection of the Appellants/Accused defence solely on the Court's rejection of the defence of alibi. [55] At paragraphs 162 to 172 of the GOJ, the learned HCJ had dealt with the evidence involving 'Ah Lon', the Nissan Teana motorcar, the Sub Tenancy Agreement (Exhibit "D74A"), including the testimonies of DW4 and DW5. Having considered the said evidence which formed the foundation of the Appellants/Accused defence, the learned HCJ however, was unconvinced of the defences raised. His lordship disbelieved DW5, giving reasons why his lordship was not convinced. [56] Therefore, we find that, the counsel's submission that the HCJ upon ruling that the defence is one of alibi, did not adequately consider the defences by the Appellants/Accused, does not hold water. We find no merit in the submission on this issue.

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(ii) that the Appellants/Accused had custody, control and knowledge of the said drugs;

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(ii) that the drugs were manufactured/processes by the Appellants/Accused. [67] Counsel also argued that the learned HCJ had erred in placing the burden prove the authenticity of Exhibit "D74A" onto the Appellants/Accused, when the burden is on the Prosecution, throughout the trial. In the circumstances and facts of this case, it is our considered view, that the learned HCJ was not in error. It is trite that the burden to prove lies onto the Prosecution throughout the trial. It is also trite that the evidential burden to disprove shifted to the other side, once the facts as alleged had been established/proven. The learned HCJ ruled that the Prosecution had succeeded in proving the evidence/facts alleged by them. The learned HCJ who doubted the authenticity of Exhibit "D74A", find no reliable evidence being proffered by the Appellants/Accused to challenge/rebut legally entered Tenancy Agreement (Exhibit "P72") as adduced by the Prosecution. As noted earlier by us, we agreed with the said finding/ruling of the learned HCJ. [68] To wrap on this issue, we noted that even though, the learned HCJ disbelieved the Appellants/Accused and their witnesses, DW5 in particular on the Sub-Tenancy Agreement, it is obvious to us that the learned HCJ had duly considered and appraised the evidence of the Appellants/Accused and their witnesses in its entirety. Having undertaken that exercise, we are of the view that the learned HCJ did not misdirect himself in his findings of facts or in law. Therefore, based on the abovementioned reasons, we find that the learned HCJ had carried out a thorough analysis of the evidence, in its totality. Hence, we do not find any lack of judicial appreciation of the evidence by the learned HJC. APPEAL AGAINST CONVICTION ON POSSESSION (THE 5TH CHARGE): [69] For the offence of illegal possession of dangerous drugs under section 12(2) DDA 1952 (the $ 5^{\mathrm{th}} $ Charge), the Prosecution has managed to prove possession of all the drugs recovered from the said house, beyond any reasonable doubt based on the following evidence which was admitted by the when dealing with the issue of possession for the $ 1^{\mathrm{st}} $ to the $ 4^{\mathrm{th}} $ Charges, inter alia:

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(ii) the keys to the house were seized from the $ 1^{\mathrm{st}} $ Accused;

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(iii) the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Accused exited the house together with the $ 1^{\mathrm{st}} $ Accused;

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(iv) the Appellants/Accused attempted to run away and looked frightened;

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(vi) DNA profiles of the Appellants/Accused were found on the 3 pairs of gloves, damp pants and towels found inside the house;

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(vii) the drugs were not hidden and can be seen openly; and

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(viii) drugs residues/stains are found on the 3 pairs of gloves. [70] The finding of the Chemist (PW4) that confirmed the drugs to be 25.9 gram of drug 3,4-methylenedioxymethampphatemine was never challenged. The Prosecution had proven that the Appellants/Accused did not have lawful authorisation under the law to have in possession of the said drugs. [71] The Appellants/Accused failed to rebut the evidence adduced by the Prosecution abovementioned. Hence, we are unable to see any error in the conviction of the Appellants/Accused by the learned Judge relating to the $ 5^{\mathrm{th}} $ Charge, the charge for possession. We see no merit in the Appeal by the Appellants/Accused here. Thus, we dismissed their appeals and affirmed the decision of the learned High Court. CONCLUSION [72] After having appraised the Appeal Records including the GOJ as a whole and having considered the submissions by the learned counsels for the Appellants/Accused and the learned DPP for the Respondent, we find that the learned HCJ had applied the correct principle of law where applicable. The learned HCJ has correctly applied the correct burden of proof on the Prosecution throughout the trial. The learned HCJ had correctly ruled that, the 'burden' on the Appellants/Accused is only to cast a reasonable doubt onto the Prosecution's case. The learned HCJ had also applied the correct principle on common intention under section 34 of the Penal Code (PC). [73] The learned HCJ ruled and concluded that the Appellants/Accused had control, custody and possession of the drugs seized from the house. Based on the totality of the facts/evidence adduced before the trial Court, which include, inter alia, that the Tenancy Agreement between the 1 $ ^{st} $ Accused and the landlord (Exhibit "P72") was never disputed, that the Appellants/Accused were arrested together at the house, that the keys to the house were seized from the 1 $ ^{st} $ Accused, that no one else were found inside the house and the Appellants/Accused failed attempt to flee, we find that the learned HCJ did not err in his Lordship's finding. We find that the Appellants/Accused failed to show that the learned HCJ had fallen into error in his Lordship's finding and decision abovesaid. [74] Based on inter alia, the presence of drug residues/substance on the 3 pairs of gloves, the presence of the DNA profiles of the Appellants/Accused on the items recovered, the drugs and pills which were left to dry and the drug stains/residues found all over the upper floor of the house and the utensils/apparatus and chemicals seized from the upper floor of the said house, the learned HCJ concluded that the element of manufacturing of the drugs seized have been proven. We find that, based on the facts/evidence abovesaid, taken together and as a whole, the only irresistible and logical conclusion that may be reached is that the Appellants/Accused were involved in the act of processing/manufacturing of the drugs recovered from inside the house. We agreed with the learned HCJ's finding. [75] As regard the defences raised by the Appellants/Accused, we observed that the learned HCJ did not brush off the evidence of the witnesses for the Appellants/Accused without any basis, as contended by counsels. We find that the learned HCJ had analysed their evidence in depth before ruling to dismiss them for being untruthful/unreliable/afterthought and consequently finding that the Appellants/Accused had failed to raise any reasonable doubt on the Prosecution's case. We find that the learned HCJ gave cogent reasons why the evidence of the Appellants/Accused and their witnesses were rejected. In this respect, we find that the Accused/Appellants had failed to show that the learned HCJ had erroneously misdirected himself in his rulings abovesaid. [76] Based on the aforesaid, in respect of finding on conviction by the learned HCJ, we find no merit in the appeals. We find that the learned HCJ was correct in finding that the Prosecution had succeeded in proving all the charges against the Appellants/Accused beyond any reasonable doubt and that the Appellants/Accused had failed to raise any reasonable doubt on the said Prosecution's case. Therefore, we dismissed the appeals and affirmed the findings and decision of the learned HCJ on conviction. APPEAL AGAINST SENTENCE [77] As to the appeals against sentence, in particular the death penalty, on the facts and circumstances aforementioned, the learned HCJ was of the view that the offence committed, does not fall within any of the circumstances set out under section 38B (2A) (a) to (d) of the Dangerous Drugs Act (Amendment) 2017 to befit the imposition of a sentence of life imprisonment. We are in concurrence with the learned HCJ. We cannot see any circumstances set out under section 38B (2A) (a) to (d) abovementioned being present here. Having found no error in the sentences imposed, we therefore also dismissed the appeals on sentencing. AHMAD ZAIDI BIN IBRAHIM JUDGE COURT Of APPEAL Dated: 10 August 2022 For the 1st AppellantRamesh Vasan [Ramesh Vasan & Co.]For the 2nd AppellantDato' Ranjit Singh & Tan Guat Cheng [J. Kaur, Ranjit & Assoc.] & [GC Tan & Co.]For the 3rd AppellantDiar Isda Yazmin Binti Ismail [Shamsuddin & Co.]For the RespondentTPR Dato' Mohd Dusuki Bin Mokhtar TPR Hanim Binti Mohd Rashid [Jabatan Peguam Negara] Statutes Referred: