KONG SENG LONG v Pendakwa Raya (J-05(M)-179-06/2020)

The Appellant was charged with six offences under the Dangerous Drugs Act 1952 (“DDA 1952”). The amended charges against the Appellant were as follows: Pertuduhan Pertama Bahawa kamu pada 30.4.2017, jam lebih kurang 4.30 petang, bertempat di sebuah rumah beralamat No. 9, Jalan Harmonium 22/15, Taman Desa Tebrau dalam Daerah Johor Bahru, dalam Negeri Johor telah didapati memperedarkan dadah berbahaya, iaitu sejumlah berat bersih 23.59 gram Heroin dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Pertuduhan Kedua Bahawa kamu pada 30.4.2017, jam lebih kurang 4.30 petang, bertempat di sebuah rumah beralamat No. 9, Jalan Harmonium 22/15, Taman Desa Tebrau dalam Daerah Johor Bahru, dalam Negeri Johor telah didapati memperedarkan dadah berbahaya, iaitu sejumlah berat bersih 49.96 gram Monoacetylmorphines dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Pertuduhan Ketiga Bahawa kamu pada 30.4.2017, jam lebih kurang 4.30 petang, bertempat di sebuah rumah beralamat No. 9, Jalan Harmonium 22/15, Taman Desa Tebrau dalam Daerah Johor Bahru, dalam Negeri Johor telah didapati memperedarkan dadah berbahaya, iaitu sejumlah berat bersih 282.16 gram 3, 4 Methylenedioxymethamphetamine (MDMA) dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Pertuduhan Keempat Bahawa kamu pada 30.4.2017, jam lebih kurang 4.30 petang, bertempat di sebuah rumah beralamat No. 9, Jalan Harmonium 22/15, Taman Desa Tebrau dalam Daerah Johor Bahru, dalam Negeri Johor telah didapati memperedarkan dadah berbahaya, iaitu sejumlah berat bersih 55.45 gram 3, 4 Methylenedioxymethamphetamine (MDMA) dan dengan itu kamu telah 4 melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Pertuduhan Kelima Bahawa kamu pada 30.4.2017, jam lebih kurang 4.30 petang, bertempat di sebuah rumah beralamat No. 9, Jalan Harmonium 22/15, Taman Desa Tebrau dalam Daerah Johor Bahru, dalam Negeri Johor telah didapati memperedarkan dadah berbahaya, iaitu sejumlah berat bersih 287.13 gram Methamphetamine (MDMA) dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Pertuduhan Keenam Bahawa kamu pada 30.4.2017, jam lebih kurang 4.30 petang, bertempat di sebuah rumah beralamat No. 9, Jalan Harmonium 22/15, Taman Desa Tebrau dalam Daerah Johor Bahru, dalam Negeri Johor telah didapati memiliki dadah berbahaya, iaitu sejumlah berat bersih 44.16 gram Methamphetamine dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A(2) Akta yang sama.

On 30.04.2017 at around 4:30 p.m., ASP Ahmad Syaari bin Ishak (“PW5”) and a team of police officers from Jabatan Siasatan Jenayah Narkotik, IPK Johor were led by the Appellant to a house at No. 9, Jalan Harmonium 22/15, Taman Desa Tebrau, Johor Bahru. Upon their arrival, PW5 called out the occupants of the house. A Chinese woman came out 5 of the house, and PW5 introduced himself as a senior police officer to her. PW5 directed the Chinese woman to open the door and requested her identification. The Chinese woman was later identified as Kong Sek Fai (“PW4”), the Appellant’s elder sister. PW5 and his team then proceeded to enter the house.

Led by the Appellant, PW5 and his team went to the first floor and into the first room on the left. The room was locked. The Appellant then went into the storeroom below the stairs to retrieve a ladle which the Appellant later used to open the door to the room.

After successfully entering the room, the Appellant took one brown coloured bag written: “Genting Grand Laundry & Dry Cleaning”, which was located on the floor, next to the wall near the toilet and handed it over to PW5. An examination was conducted, and PW5 found four newspaper packages, each containing a translucent plastic packet containing white and yellowish lumps suspected to be heroin.

The Appellant then went to a cabinet at the left corner of the room and pulled the bottom drawer. From the drawer, the Appellant took out and handed over to PW5: a. a newspaper package containing a translucent plastic packet containing white and yellowish lumps suspected to be heroin; b. four translucent plastic packets containing crystallized and powdered substance suspected to be syabu; 6 c. a translucent plastic bag containing eight translucent plastic packets containing 797 blue-coloured pills suspected to be ecstasy; and d. a bundle of ten red-and-silver-coloured foils containing a total of 100 pills suspected to be Eramin-5.

SP5 and his team searched further in the said room and found a translucent plastic bag on top of a small cupboard near the window. Upon examination of the said bag, SP5 found: a. three translucent plastic packets containing 295 dark-green-coloured pills suspected to be ecstasy; b. two translucent plastic packets containing 150 red-coloured pills suspected to be ecstasy; c. two translucent plastic packets containing 95 green-coloured pills suspected to be ecstasy; d. two translucent plastic packets containing 95 pink-coloured pills suspected to be ecstasy; e. a translucent plastic packet containing 45 light blue-coloured pills suspected to be ecstasy; f. a translucent plastic packet containing 100 purple-coloured pills suspected to be ecstasy; 7 g. four translucent plastic packets containing 80 orange-coloured pills suspected to be ecstasy; and h. a Nokia 105 box containing seven translucent plastic packets containing 1075 red coloured pills suspected to be Yaba.

Other things seized by PW5 inside the room were as follows: a. a Hong Leong Bank account book in the name of the Appellant; b. a driving license in the name of the Appellant; c. a “Buffalo” brand blue jeans; and d. a “Street Republic” brand short sleeve black shirt.

The Appellant and all seized items were taken to Pejabat JSJN IPK Johor for further investigation. The drugs were sent to the chemist department for analysis, and it was confirmed that the drugs were of the same type and weight as per the charges against the Appellant.

At the end of the prosecution’s case, the learned JC found that the Appellant had custody, control, and possession of the drugs. The learned JC further found that for the first to the fifth charge, the element of trafficking in drugs was established based on the statutory presumption under section 37(da) of DDA 1952.

The learned JC also found that the prosecution had successfully established a prima facie case against the Appellant for all the six charges. The learned JC ordered the Appellant to enter his defence.

The Appellant claimed that the room where the drugs were found was accessible to others. He contended that the house belonged to SP4, and he lived there with his family members. The Appellant also claimed that others had access to his room through the attached bathroom. He claimed that he was in police custody three days before the discovery of the drugs, during which anyone could have gone into the room and planted the drugs. He also claimed to have no access to the room as he had to open the door forcefully by using the ladle.

At the conclusion of the trial, the learned JC found that the Appellant failed to raise a reasonable doubt in the prosecution’s case. It was also found that the prosecution had successfully proven its case beyond a reasonable doubt. The Appellant was found guilty and convicted of all the charges.

The Appellant was sentenced to death for the first to the fifth charge. For the sixth charge, the Appellant was sentenced to fifteen years of imprisonment from the date of arrest and twelve strokes of whipping.

Dissatisfied with the decision of the learned JC, the Appellant filed these two appeals. At the hearing of the appeals before us, the learned counsel for the Appellant raised several issues pertaining to – a. information leading to discovery under section 27 of the Evidence Act 1950; b. possession of the drugs and accessibility to the room; and c. discrepancies in the evidence of the prosecution’s witness and exhibits.

Firstly, the learned counsel submitted that there was inconsistency in the information supplied by the Appellant to PW5, which was reduced into one of PW5’s police reports (“P15”), with the actual place where the drugs were found. According to the learned counsel, the inconsistency rendered the information allegedly supplied by the Appellant unsafe to be relied upon.

We have gone through the Appeal Records and found that this issue was already raised before the learned JC.

When confronted with this issue, PW5 testified during re-examination by the learned Deputy Public Prosecutor (“DPP”) that the Appellant was the one who gave information that the drugs were located on the floor in his room and PW5 had merely reduced the information in written form, i.e., P15. However, after PW5 and his team, together with the Appellant, had successfully entered the room, it was the Appellant himself who had picked up and handed over all the drugs to PW5. The learned JC accepted PW5’s explanation. The relevant part of the learned JC’s grounds of judgment is reproduced below: “[72] Learned counsel for the accused contended that PW 5’s evidence was inconsistent. Pertaining to the inconsistency of PW 5’s evidence, for ease of reference the notes of proceedings are reproduced below: “S: Tadi ASP tidak setuju bila peguam cadangkan bahawa OKT langsung tidak memberi apa-apa maklumat tentang bilik ataupun dadah. ASP kata tidak setuju. Boleh terangkan? Saya tidak bersetuju kerana maklumat yang diberikan itu telah saya terjemahkan di dalam laporan polis yang saya buat. Itulah yang saya tidak bersetuju dengan cadangan peguam tadi. “S: ASP tadi peguam katakan jika benar OKT ada memberi maklumat sepertimana dalam P15 dengan maklumat yang kita rujuk di P15 tadi. Peguam katakan maklumat ini tidak tepat. ASP kata berdasarkan repot tidak sama. Boleh terangkan kepada Mahkamah apa yang tidak sama? Semasa maklumat yang didedahkan oleh OKT ketika di pejabat. Apa sahaja yang dikatakan oleh OKT itu saya mengambil kira dan saya terjemahkan dalam laporan polis. Ianya tidak menjadi persamaan apabila sesampainya kami ke dalam bilik yang mana OKT sendiri bergerak menuju ke tempat-tempat yang dinyatakan dan difikirkan beradanya dadah seperti yang dimaklumkan saya semasa di pejabat. Itulah perbezaan yang saya nyatakan, 11 maklumat yang diberikan di pejabat dan juga semasa di tempat kejadian Yang Arif. Tadi peguam ada cadangkan bahawa buku bank dan juga lesen OKT tidak dijumpai bersama dadah tersebut. ASP kata setuju. Boleh ASP terangkan mengenai jawapan ASP ini? Buku bank dan juga lesen memandu milik OKT saya nyatakan tidak berada bersama-sama dengan bersama-sama barang kes kerana dalam keadaan di dalam bilik itu mempunyai almari-almari kecil yang berbeza-beza Yang Arif. Tidak ada bersama dengan barang kes maksudnya dadah? Ya barang kes dadah yang dijumpai dan juga dirampas. Ianya tidak berada bersama kerana barang-barang peribadi yang saya ambil itu iaitu buku bank dan juga lesen memandu ianya kelihatan hanya berada di atas salah satu almari kecil. Jadi ianya bersendirian di situ tanpa bersama-sama dengan barang kes dadah. Itulah yang saya nyatakan tidak bersama dengan barang-barang kes dadah yang ditemui. Tapi dirampas pada waktu yang sama dengan barang kes dadah? Rampas pada waktu yang sama. ASP jawab setuju bila peguam katakan bahawa maklumat yang diberikan oleh OKT ini adalah tidak tepat, sebab dadah bukan jumpa di atas lantai. Boleh terangkan berkenaan dengan perkara ini? Saya bersetuju Yang Arif kerana maklumat yang diberikan semasa di pejabat OKT nyatakan dadah itu berada atas lantai biliknya. Apabila kami sampai dan masuk ke dalam bilik, saya melihat sendiri perbuatan OKT yang mengambil dadah di tempat yang berbeza dan bukannya di atas lantai. Perbuatan OKT ini 12 bukanlah didorong oleh saya kerana apabila masuk sahaja ke dalam bilik OKT terus menuju ke tempat-tempat yang telah saya nyatakan di penjuru sebelah pintu tandas dan juga di penjuru di tingkat di sebelah kiri bilik. Jadi saya berfikiran ia mungkin anggapan saya Yang Arif, itulah yang dikatakan OKT atas lantai. Jadi dalam pemahaman saya sendiri itulah perbezaan maklumat yang dikatakan atas lantai di pejabat dan juga situasi semasa kejadian. Perbezaan dari segi pemberi maklumat dan juga semasa dia memanggil dadah itu sendiri. Itulah bezanya.”

From the notes of proceedings stated above, this court is of the view that any inconsistencies in PW 5’s evidence was explained in re-examination by the learned Deputy Public Prosecutor. Thus the issue of inconsistency in PW 5’s evidence in the view of this court does not have merit.”

In so holding, the learned JC cited the case of Wan Amirul Mubin bin Wan Kamaruddin v PP [2017]1 LNS 1478, in which His Lordship, Idrus Harun JCA (as he then was), in delivering the judgment of this court, held: “[28] It is at this stage important to state that the defence case in respect of both charges is one of a bare denial. As regards Exhibit P30 which contains the information under section 27 of the Evidence Act 1950, the Appellant flatly denied that he ever gave the information and signed it. It is hard to believe that the Appellant did not sign Exhibit P30 when the irrefragable evidence showed that PW7 had also signed a similar document in Exhibit P32 in which she denied knowledge or having possession of the drug found at the back of the house. His stance would not, in our judgement, go beyond a mere denial as to persuade us to accept his claim that he did not give the information. We would say that PW4 could not have discovered the 13 proscribed drug if not for the information obtained from the Appellant. It is unthinkable that PW4 had fabricated evidence in view of the complete absence of any evidence or allegation by the Appellant that PW4 had made up a story regarding Exhibit P30. In fact, the Appellant admitted during cross - examination that PW4, PW5 as well as PW7 had absolutely no reasons to lie about him. PW4 and PW5 were police officers who were merely performing their duties and they had no reasons to lie or to frame up the Appellant whom they said they did not know. The learned judge had accepted their evidence and we find no reasons whatsoever to interfere with the decision and the assessment of the evidence of PW4, PW5 and PW7 by the learned judge. The learned judge was perfectly entitled to accept the evidence of these witnesses whose credibility His Lordship found to be impeccable.” (emphasis added)

We have perused the Appeal Records, and we do not see any reason to depart from the findings of the learned JC above. We agree with the learned JC that PW5 has duly explained the inconsistency raised by the learned counsel. Therefore, we are of the view that there is no merit in this issue.

Secondly, it was submitted by the learned counsel that the Appellant’s conduct in leading, picking up and handing over the drugs to the police was inadmissible since there was no evidence to show that a proper caution was administered to the Appellant in accordance with section 37B of DDA 1952.

Regarding this issue, we are of the considered view that the evidence of the Appellant’s conduct in leading, picking up and handing 14 over the drugs to the police is relevant and admissible under section 8 of the Evidence Act 1950. We disagree with the learned counsel that a statutory caution under section 37B of DDA 1952 must be administered to the Appellant before the evidence of his conduct is admissible. In our view, the term ‘statement’ under section 37B of DDA 1952 is only confined to something that is stated or communicated, either orally or in writing, and it does not extend to the evidence of conduct which is admissible in its own under section 8 of the Evidence Act 1950.

Our view is further fortified by the most recent Federal Court decision in Arif Arhannan bin Che Udin v. Public Prosecutor [Criminal Appeals No: 05(M)-22-02/2020(N) and 05(L)-24-02/2020(N)] where His Lordship, Abdul Rahman Sebli FCJ, in delivering the judgment of the court, held as follows: “[53] Having given the matter our utmost consideration and having regard to the authorities, we agree with Nik Hashim J (as he then was) in Kanapathy a/l Kupusamy & Anor (supra) that to hold that the conduct of an accused amounts to a statement under section 37A (now section 37B) of the DDA would be to overstretch the language beyond its common usage. Likewise, we agree with James Foong JCA (as he then was) in his dissenting judgment in Y Jeyamuraly Yesiah (supra) that conduct cannot be considered as a statement under the section that required a caution to be administered before it could be admitted in evidence.

The word “statement” in section 37B of the DDA must be confined to “something that is stated” or “written or oral communication” (Bhogilal Chunilal Pandya, Cormac McCarron, supra) and does not include conduct such as the act of the Appellant in the present case of picking up the black bag containing the drug and handing it to SP6. If it were otherwise, the conduct of an accused running away from the police would also amount 15 to a “statement” and would be inadmissible in evidence unless he had been cautioned under section 37B of the DDA before he takes flight.

In holding the view that conduct amounts to statement, the majority in Y Jeyamuraly Yesiah relied on the analogy used by counsel for the Appellant in that case. This is reflected in the following paragraph of the judgment: “After referring to several authorities, learned counsel submitted that where any act of an accused communicates a fact to the officer asking the question, such conduct must necessarily amount to a statement by the accused within the meaning of s. 37A of the Act. If this were not the case, then persons who cannot write, in other words, an illiterate and persons who are mute will automatically be excluded from the protection afforded by the section. This certainly cannot be what Parliament had intended when the said section was drafted. The intent and purport of s. 37A of the Act is to, amongst others, re-emphasize the fact that persons arrested have the right to remain silent and that they need not answer any questions after arrest.”

With all due respect, the analogy given by the counsel in Y Jeyamuraly Yesiah which the majority relied on is not only inappropriate but unintelligible. An illiterate person may not be able to read and write, but that does not mean that he cannot speak to make a statement. The same goes with a mute person. He may not be able to speak, but that does not mean that he cannot make a statement by using sign language, which is a common occurrence even in court proceedings. Even if he has no ability to communicate in sign language, there are other means for him to make a statement such as writing it on a piece of paper. The question of being excluded from the protection afforded by section 37B of the DDA does not arise at all.

If counsel's reasoning in Y Jeyamuraly Resiah were to be carried to its logical conclusion, it would mean that an illiterate or a mute person charged with an offence under the DDA would stand in a more advantageous position than one who is not because it could then be argued that since he is incapable of making a statement due to his incapacity, his conduct which incriminates himself such as handing over to the police an incriminating item of evidence will be excluded from evidence for the reason that it cannot amount to a “statement” by reason of his incapacity, whereas such conduct by an accused who is neither illiterate nor mute will amount to a statement. The argument cannot get more convoluted than that.

In the circumstances, we are constrained to reject learned counsel’s contention that the learned JC was wrong in admitting evidence of the Appellant’s conduct on the ground that no caution under section 37B of the DDA was administered to him. It is clear that such evidence of conduct is relevant and admissible under section 8(2) of the Evidence Act 1950 which reads: “(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.”

The fact in issue before the High Court was whether the Appellant had knowledge of the drug inside the black bag. His conduct of picking up the black bag and handing it to SP6 was clearly relevant to the issue. We are therefore unable to accept learned counsel’s argument that the prosecution cannot rely on section 8(2) of the Evidence Act 1950 on the ground that there is a special Act to deal with admissibility of statements, including conduct, given by an accused person charged with an offence 17 under the DDA, applying the maxim generalia specialibus non derogant (the provisions of a general statute must yield to the provisions of a special one). The argument must fall once it is determined that conduct does not amount to statement.” (emphasis added)

Similarly, in the present case, the administration of caution is a non-issue, as the conduct of the Appellant is relevant and admissible under section 8 of the Evidence Act 1950. Therefore, we are of the view that this issue has no merits.

The learned counsel submitted that the learned JC had erred in her finding that the Appellant had possession of the drugs. According to the learned counsel, the prosecution failed to exclude the possibility of access of others to the room and the drugs.

Firstly, we agree with the approach taken by the learned JC in citing these authorities, namely Chan Pean Leon v. PP [1956] MLJ 237; [1956] 1 LNS 17 (HC), Leow Nghee Lim v Regina [1955] 1 LNS 53 (HC), and PP v. Badrusham bin Baharom [1987] 1 LNS 72 (HC). In our view, the learned JC was correct when she found that – “[25] Succinctly, from a condensation of the authorities mentioned, “possession” therefore connotes the ability of the possessor to exercise the power to deal with the drugs to the exclusion of others coupled with his knowledge of the drugs in question.”

Secondly, we agree with the learned JC’s findings that the room where the drugs were found was the Appellant’s room. The learned JC, in her grounds of judgment, found – “[26] The circumstance of this case reveals that the room where the impugned drugs were found was the accused’s room. The evidence of the accused’s sister Kong Sek Fei (PW4), the accused brother Kong Seng Wah (PW7) and the accused’s sister Kong Sek Fun (PW10) confirmed that the room where the impugned drugs were found belonged to the accused. PW7 stayed in the room next to the accused and stated that he did not know of the impugned drugs in the room. He further confirmed that the drugs did not belong to him.”

Upon careful perusal of the Appeal Records, we found that PW4, PW7 and PW10, who were all living in the said house with the Appellant, confirmed that the Appellant occupied the room where the drugs were found. The Appellant’s personal belongings, such as a Hong Leong Bank account book (“P27”) and a driving license (“P28”), were also found inside the room. The fact that the Appellant was occupying the room was admitted by the Appellant himself when he gave evidence during examination-in-chief. During cross-examination, the Appellant readily admitted that he had access, custody, and control of the said room and the things inside it. Hence, it is clear to us based on the evidence that the Appellant was the sole occupier of the room.

Thirdly, as a sole occupier of the room, it follows that the Appellant had exclusive possession of all the things inside the room. Therefore, it is incorrect to argue that just because someone else had access to the room, the Appellant who occupied the room would lose exclusive possession of all the things inside the room. His Lordship, Azahar Mohamed JCA (as he then was), in delivering the judgment of this court in Lim Son Heng v. PP [2014] 1 LNS 414, CA, held: “[14] With respect, it is incorrect to argue that just because someone else has access to the house, the person occupying that house would lose exclusive possession of all the things inside the house. R v. Woodman [1974] 2 All ER 955 is a case concerning theft of scrap metal from a factory site, where the owners had put up fencing around the site to keep out trespassers. The owners themselves were unaware that remnants of scrap metal still remained in the factory. Lord Widgery CJ in delivering the judgment of the Court of Criminal Appeal held that: "We have formed the view without difficulty that the recorder was perfectly entitled to do what he did, that there was ample evidence that English China Clays were in control of the site and had taken considerable steps to exclude trespassers as demonstrating the fact that they were in control of the site, and we think that in ordinary and straightforward cases if it is once established that a particular person is in control of a site such as this, then prima facie he is in control of articles which are on the site." (emphasis added)

However, the learned counsel contended that there was possibility of access by other persons to the room and the drugs in the present case. We are mindful that the prosecution bears the burden of excluding the possibility of access by others to the drugs. See Abdullah Zawawi Yusoff v. Pendakwa Raya [1993] 4 CLJ 1; [1993] 3 MLJ 1 (SC), PP v. Ang Kian Chai [2012] 1 LNS 389 (CA), Husin Sitorus v. PP [2012] 7 CLJ 205 (CA), Azizan Yahaya v. PP [2012] 8 CLJ 405 (CA), Mohamad Abdul Rahman v. PP [2013] 7 CLJ 843 (CA), Lean Siew Boon & Anor 20 v. PP & Other Case [2013] 1 LNS 979; [2014] 2 MLJ 572 (CA), and Ooi Chee Seong & Anor v. PP [2014] 7 CLJ 505; [2014] 3 MLJ 593 (CA).

In the present case, we found that all persons living with the Appellant in the said house before he was arrested and who could have access to the room and the drugs were called by the prosecution to testify.

PW4, the Appellant’s sister, confirmed that she never went into the Appellant’s room and the attached bathroom. She further stated that she never knew of anybody else who had entered the Appellant’s room. PW7, the Appellant’s brother who was occupying the adjacent room, confirmed that he did not know of the impugned drugs in the Appellant’s room. PW7 further testified that drugs were not his, and he never saw the drugs in the Appellant’s room. PW10, the owner of the house and the Appellant’s sister, stated that the Appellant occupied the room. PW10 further stated that there were two sets of keys to the room. According to PW10, one set was given to the Appellant, and she kept the other, and nobody in the house knew where she kept it. She testified she had no knowledge of the drugs.

Regarding the suggestion by the learned counsel that either PW7 or his friends had entered the Appellant’s room, we agree with the learned JC that there was no evidence to support this suggestion based on the totality of the evidence adduced. The relevant part of the learned JC’s grounds of judgment is reproduced below:

The evidence before this court is that there is an attached bathroom between the accused’s room and PW 7’s room. However, since the impugned drugs were substantial, anyone entering the accused’s room through the attached bathroom with the impugned drugs would 21 be seen. There was no evidence of PW 7 or his friends entering into the accused’s room. Therefore, this court finds it unlikely that anyone else had access to the accused’s room during the 3 days that he was not there. Moreover, the room was locked and no one had the key.”

Lastly, there is also the evidence under section 27 and section 8 of the Evidence Act 1950, which has been admitted and accepted by the learned JC, which imputes knowledge on the part of the Appellant regarding the location and the nature of the drugs. We do not see any reason to disturb the findings of the learned JC.

For the preceding reasons, we consider that there are also no merits in this issue.

It was submitted by the learned counsel that there were discrepancies in the evidence of PW5 with the search list (“P13”) in which the ‘Genting Grand Laundry and Dry Cleaning’ bag was not mentioned in P13.

First and foremost, we agree with the view of Her Ladyship, Aziah Ali JCA (as she then was) in Ekwe Sampson Odii v. PP [2016] 2 CLJ 387 (CA) that a search list is corroborative in nature, as can be seen below: “[25] We wish to address issues (a) and (c) first. Learned counsel submitted that the search lists and the borang serah menyerah that were prepared by PW5 would have shown the number of capsules that were recovered by PW5 from the Appellant. However in our view, these documents though relevant, would have been in the nature of corroborative evidence on the number of capsules that PW5 said had been excreted by the Appellant and their absence is not fatal to the prosecution because we find ample evidence to support the testimony of PW5 and also PW4 on the number of capsules they had recovered.” (emphasis added)

Even though the ‘Genting Grand Laundry and Dry Cleaning’ bag was not mentioned in P13, it was mentioned in P12 and confirmed through the oral evidence of PW5. Furthermore, we found that the confiscation of the ‘Genting Grand Laundry and Dry Cleaning’ bag in the Appellant’s room was never challenged by the learned counsel through cross-examination of the relevant prosecution witness. It is trite that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness's testimony (see Wong Swee Chin v Public Prosecutor [1980] 1 LNS 138 (FC)).

In Loh Kah Loon v. PP [2011] 5 CLJ 345 (FC), His Lordship, Raus Sharif FCJ (as he then was), in delivering the judgment of the Federal Court, held: “…The real question is whether the exhibits recovered by the police is the same exhibits sent to and examined by the chemist and subsequently produced in court as evidence. We have no doubt that it was the same exhibits.”

The learned JC found that there was no break in the chain of exhibits pertaining to the drugs, and we see no reason to depart from such 23 findings. The relevant passage of the learned JC’s findings in her grounds of judgment can be seen below: “[20] The evidence given pertaining to the movement of the exhibits from the time the exhibits were recovered until the time the exhibits were produced in court, this court found no fatal break in the chain of exhibits and is therefore satisfied that the drugs produced in court were the same drugs seized by the police during the raid.”

The learned counsel also pointed out discrepancies in PW5’s police report (“P12”) and PW5’s oral evidence regarding the location where the drugs were found. In P12, the following is observed: “No: 1 Jenis Barang: HEROIN NO. 3 Kuantiti: 2.2748 kg Tempat dijumpai: Diserahkan oleh penama 1 dengan tangan kanannya Cara disembunyikan: Di dalam beg kain berwarna Coklat bertulisan GENTING GRAND Laundry & Dry Cleaning / Di dalam laci di bahagian bawah.”

However, we agree with the learned DPP that there was no contradiction because the weight of the heroin confiscated mentioned in P12; namely 2.2748 kg, was the total weight of heroin found in the ‘Genting Grand Laundry and Dry Cleaning’ bag (1,819.80g) and in the lower cabinet (455g).

Finally, we agree with the learned DPP that these issues were never raised during trial before the learned JC. As such, the relevant prosecution witness was not afforded the opportunity to rebut or to explain the 24 discrepancies. In Lee Wai Loon v. PP [2014] 3 MLJ 325, His Lordship, Richard Malanjum CJ (Sabah & Sarawak) (as he then was) in delivering the judgment of the Federal Court held: “[52] As regards the gap periods (18–24 June 2008 and 24–26 June 2008) highlighted by learned counsel for the Appellant we note that the learned trial judge had considered and made a factual finding that there was no break in the chain of evidence. SP1 said that after marking the drug exhibit and other items seized from the Appellant he handed the same to SP7 (the investigating officer) on 18 June 2008 at around 11–11.30pm. In turn SP7 said that he kept the drug exhibit inside a locked steel cabinet in his room. On 24 June 2008 he brought the exhibits for fingerprint tracing. He said that he kept watch on them while being dusted for fingerprint and after that he took them back with him. Then on 26 June 2008 at around 11.16am he gave the drug exhibit to SP3 for chemical analysis.

It is therefore obvious that the drug exhibit was within the custody and care of SP7 during those dates. Anyway, there was no challenge by the defence during the trial that SP7 had left the drug exhibit outside his locked steel cabinet after taking them out for photographs and dusting for fingerprint. Such absence of challenge had deprived the prosecution the opportunity of rebuttal by way of police diaries and other relevant documents. To raise therefore the issue at the appeal stage in our view is a little late in the day.” (emphasis added)

Based on all the above, we find no merit in this issue.

We have perused the Appeal Records and heard the submissions by the learned counsel for the Appellant and the learned DPP for the Respondent. Our decision is unanimous. We found no merit in the Appellant’s appeal. We are also of the view that taking all the evidence adduced in totality, the Appellant’s conviction is safe. We dismissed the Appellant’s appeals hence the Appellant’s conviction and sentence for all the respective charges were affirmed. Dated: 27 May 2022 Signed (HASHIM HAMZAH) Judge Court of Appeal, Malaysia Solicitor For The Appellant: Shaik Saleem bin S.M Daud Tetuan Shaik Adam & Co. 20-01, Jalan Cenderasari 3 Taman Perbadanan Islam Larkin 80350 Larkin Johor Bahru Solicitor For The Respondent: TPR Nahra Dollah Jabatan Peguam Negara Cawangan Putrajaya No. 45, Persiaran Perdana, Presint 4 62100 Putrajaya