Mahir Affandi Bin Mohamad v Pendakwa Raya (A-05(H)-245-05/2024)

This is an appeal by the Appellant, Mahir Affandi bin Mohamad, against his conviction and sentence imposed by the learned High Court Judge for two offences under the Dangerous Drugs Act 1952 (“DDA”), namely trafficking in dangerous drugs (“the Trafficking Charge”) and possession of dangerous drugs (“the Possession Charge”).

At the conclusion of the trial, the learned High Court Judge found the Appellant guilty of both charges. The Appellant was accordingly convicted and sentenced to life imprisonment and fifteen (15) strokes of whipping for the Trafficking Charge, and three (3) years’ imprisonment together with three (3) strokes of whipping for the Possession Charge. The learned High Court Judge further ordered that the sentences of imprisonment run concurrently, commencing from the date of the Appellant’s arrest on 11 April 2017.

The Trafficking Charge reads: “Bahawa kamu pada 11 April 2017, jam lebih kurang 2.00 pagi, bertempat di rumah kakitangan No. L3-3, Jalan Besout 7, Felda Gunung Besout 2, Sungkai di dalam Daerah Muallim, Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya, iaitu sejumlah berat 2,828.60 gram Methamphetamine dan dengan itu, kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

The Possession Charge reads: “Bahawa kamu pada 11 April 2017, jam lebih kurang 2.00 pagi, bertempat di rumah kakitangan No. L3-3, Jalan Besout 7, Felda Gunung Besout 2, 920 Sungkai di dalam Daerah Muallim, Negeri Perak Darul Ridzuan, telah ada dalam di dalam kawalan kamu berat bersih bahan 5.19 gram yang mengandungi dadah jenis Methamphetamine oleh yang demikian, 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.”

The salient facts leading to the charges against the Appellant, as set out by the learned High Court Judge, are as follows: “Salient facts leading to seizure of items The raid

Acting on information, on 11.4.2017 at approximately 2.00 a.m., SP8 led a team of police from the Bahagian Siasatan Jenayah Narkotik Daerah, Ibu Pejabat Daerah Muallim, Perak to carry out a raid. The team consisted of SP9 and SP11 together with Lance Corporal 177179, 191238, Constable 196728 and Constable 193603, and an officer from Balai Polis Trolak. They went to a house carrying the address No. L 3-3, Jalan Besout 7, Felda Gunung Besout 02, 35600 Sungkai, Perak (“the House”).

Upon reaching the House, SP8 knocked on the door. After a few minutes, the door was opened by a Malay man who identified himself as the homeowner (“the accused”). SP8 introduced himself as a senior police officer, showed his authority card, and explained the reasons for their visit. Following this, SP8 together with his team entered the house. Witnessed by other raiding officers, SP8 conducted a physical examination of the accused. He did not find any incriminating items on the accused.

SP8 then together with the accused, proceeded to a room near the kitchen and found a Malay man with a waist pouch on him sitting on the floor. This room is identified as Room

SP8 introduced himself as a senior police officer and asked for his personal particulars. He did not have his identification card but gave his name as Noormizan bin Mohamad (SP3) and his national registration identification number as 810509-08-5305. Thereafter, SP8 examined a dark coloured sling bag carrying the words “FKR” (P12) which was on the floor. SP8 opened the bag in front of the accused and SP3. He dumped the contents onto the floor and found the contents comprised an identification card with the name of Mahir Affandi bin Mohamad, IC: 820122- 08-6089 i.e. the accused. Upon further examination of the bag’s zipped compartments, the following was found: i) three transparent plastic packets containing powder/crystal lumps suspected to be Methamphetamine, a prescribed dangerous drug; ii) a transparent plastic packet containing (22) red pills labelled “WY” suspected to be a prescribed dangerous drug too; and iii) that the total weight of the suspected dangerous drugs was 8.9 grams.

SP8 and his team then took the accused and SP3 for inspection of the middle room of the house. This room is identified as Room 2. Whilst there, SP8 noticed the accused looking nervous and heard the accused saying he already knows what the smell is (NOE page 333 line 9547). The following are the results of the inspection: i) in Room 2 there was a white polystyrene box on the floor; ii) SP8 opened the lid of the polystyrene box in front of both suspects and found (90) yellowish packages in it; iii) each of the yellowish packages contains ten blue plastic packets; iv) in each of the blue plastic packets were red and green pills carrying the mark “WY” and suspected to be dangerous drugs; and v) the total weight of the 90 yellow packages is 20.3 kilograms.

Thereafter, SP8 seized all the incriminating items found. The items seized were notes down onto an inspection/seizure form that was signed by the accused and SP3 (P32). All the seized items were marked, documented, signed, and dated by SP8. A copy of the seizure form was served on the accused and SP3. Thereafter, both the accused and SP3 were arrested, and together with the items seized were brought to the police station at 3.30 a.m. on 11.4.2017. Chain of evidence – seizure of items to production in Court

The chain of evidence of the seized items was gathered through the evidence of SP8, SP9 and SP12. The narration of the evidence commences with SP8 saying he seized all the incriminating items from the House, put them in his car’s bonnet and left for the police station with the accused at approximately 3.00 a.m. This was confirmed by SP9 in his evidence (NOE page 335 line 9606 until 9610).

Upon arriving at the police station at around 3.30 a.m., SP8 marked, weighed, signed and dated all the seized items. Then at 4.45 a.m, he made a police report regarding the arrest and seizure of items (P29), before handing the seized items over to the investigating officer, Insp Maslina binti Md Annuar (SP12).

Upon receiving from SP8 the seized items (P30) at 7.00 a.m. and (P31) at 7.05 a.m, SP12 kept all the seized items in a locked metal cabinet in her office which only she alone has access (NOE page 401 line 11555). On 13 April 2017, at approximately 8 a.m., SP12 brought all the seized items to a media conference at IPK Perak. Everything was under her supervision and she returned all the seized items back to the locked metal cabinet in her office at 11 a.m. the same day before delivering the seized items to the Chemist Mr. Gunalan Varatharajan (SP4) (P17) and Chemist. Ms. Masnura Binti Muhktar SP10 (P35 & P36) on 14 April 2017 between 9.34 a.m. to 10.05 a.m. for a chemical analysis to be conducted.

The chemical analysis conducted by SP4 found that the items found in the polystyrene box and seized from Room 2 of the House of the accused is Methamphetamine weighing 2,828.60 grams (P18).

The chemical analysis conducted by SP10 found in the dark coloured sling bag and seized from Room 3 of the House of the accused is Methamphetamine weighing 5.19 grams

After analysing the drugs, SP10 returned the seized items for the Possession Charge along with her chemist report on 6 and 29 June 2017 (P37 & P38) to SP12. However, the form for the return of the items or “borang serah menyerah barang kes” was dated 14 August 2017 (P20). SP4 on the other hand, returned the seized items for the Trafficking Charge along with his chemist report on 18 December 2017 and the “borang serah menyerah barang kes” was dated 19 December 2017 (P26).

On 21.4.2017, Noormizan Bin Mohamad (SP3) who was arrested was released as the police’s further investigation found that SP3 was not involved in the offences.” The High Court’s Findings and Evaluation [6] The learned High Court Judge, after undertaking a maximum evaluation of the evidence pursuant to section 180 of the Criminal Procedure Code, found that the prosecution had succeeded in establishing a prima facie case against the Appellant. [7] In arriving at this finding, the learned High Court Judge held that the chain of custody of the drugs remained intact despite the one-hour gap during the media conference, as there was no evidence that the exhibits had left the custody of the investigating officer. The identity of the drugs was also not in doubt, notwithstanding the discrepancy in the witnesses’ description of the colour of the pills, which the court regarded as a matter of subjective perception and not affecting the chemical composition of the drugs. Similarly, the inconsistency regarding the number of plastic packets observed by the police witnesses was found to be immaterial, particularly as SP8 had the clearest view when the contents of the sling bag were emptied. [8] The learned High Court Judge further found that the conduct of the accused, who appeared nervous and indicated that he could recognise the smell of the drugs, was relevant and supported the inference that he had knowledge of the drugs. The court also held that the presence of the accused’s wife in the room did not negate possession, as possession in law may be joint. In addition, the defence’s objection regarding the photocopy of the accused’s identity card was without merit as no objection had been raised when it was tendered in evidence. Finally, the alleged defect in the date stated in the charge was not prejudicial to the accused, as the raid occurred late at night on 10 April 2017 and continued into the early hours of 11 April 2017, and the accused was not misled by the discrepancy. [9] Accordingly, the learned High Court Judge held that the prosecution had established a prima facie case for both the trafficking and possession charges, and the accused was therefore called to enter his defence, with the statutory presumption under section 37(da)(xvii) of the DDA being invoked in respect of the trafficking charge. The defence [10] The defence called the accused (DW1) as the sole witness, who gave sworn evidence from the witness stand and denied having knowledge of, or possession of the drugs. His defence may be summarised as follows: For the Trafficking Charge: [11] The accused denied having any knowledge of the polystyrene box (P16) which contained the drugs found in Room 2. He claimed that the box belonged to SP14, who had earlier contacted him requesting permission to temporarily store school canteen items at his house. The accused agreed and left the house key hidden in a shoe on the shoe rack outside the house so that SP14 could access the premises, as SP14 did not wish to leave the items outside. The accused maintained that he was unaware when SP14 would deliver the items and suggested that it was SP14 who had placed P16 in the house. The defence further argued that since others had access to the house, the prosecution bore the burden of excluding such access. The defence also urged the court to treat SP14’s evidence with caution as he was an interested witness whose testimony was allegedly uncorroborated and contained improbabilities and discrepancies. For the Possession Charge: [12] Although the accused admitted ownership of the bag (P12), he denied possession or knowledge of the drugs found inside it. The defence contended that during the raid, SP3 was in Room 3 and was in closer proximity to the drugs, whereas the accused was arrested at the front door of the house. It was therefore suggested that SP3 could have placed the drugs into the bag. The defence also asserted that SP3 should be regarded as an interested witness as he had been arrested together with the accused. [13] The learned High Court Judge found that in essence, the accused’s defence was a complete denial of knowledge and possession, attributing the presence of the drugs to other persons who allegedly had access to the premises and the exhibits. [14] The learned High Court Judge carefully evaluated the defence and ultimately rejected it as incredible and unsupported by the evidence. The analysis and findings may be summarized as follows: [15] The court first identified that the essence of the defence was that the drugs found in Room 2 belonged to SP14, while the drugs found in Room 3 were allegedly placed in the accused’s sling bag by SP3. The accused also claimed that he had no knowledge of the drugs, and that other persons, including his wife and SP14, had access to the house. [16] However, the learned High Court Judge found these explanations unbelievable. With respect to the drugs found in the accused’s sling bag (P12), the court rejected the accused’s claim that SP3 had planted the drugs during a brief interval when the accused was escorted to another room. The court held that the evidence of the police officers and SP3 clearly showed that the drugs and the accused’s identity card were found in the accused’s own bag. The accused’s explanation that he possessed two sling bags was also viewed with suspicion as it was raised only during his testimony in court. [17] As regards the drugs found in the polystyrene box in Room 2, the court rejected the accused’s claim that SP14 had placed the box in the house. The Judge found it highly improbable that the accused would allow an acquaintance who was unrelated to him to freely enter his home and store unknown items there, particularly when his wife and young children lived in the house and the room was used to store the children’s toys. The accused’s conduct during the raid further undermined his defence, as he failed to immediately inform the police that the box allegedly belonged to SP14. The court also noted inconsistencies in the accused’s evidence and contradictions between his testimony and that of his wife. [18] Although the defence challenged the credibility of SP14, the court noted that SP14 had been investigated and detained by the police but was later released after investigations revealed that he had no involvement with the drugs. Even if SP14 had placed the box in the house, the court held that the accused must at least have knowingly allowed the suspicious item to be stored in his house, thereby attracting the doctrine of wilful blindness, which is treated as equivalent to actual knowledge. [19] With regard to the suggestion that the accused’s wife (SP2) might have been responsible for the drugs, the court rejected this argument and found SP2 to be a credible witness. In any event, the court held that even if she had access to the room, this would only amount to joint possession, which does not negate the accused’s possession or guilt. [20] Having evaluated the totality of the evidence, the learned High Court Judge concluded that the accused’s defence was imaginary, improbable, and incapable of raising a reasonable doubt. The accused was found to have failed to rebut the statutory presumption of trafficking under section 37(d)(xvi) of the DDA on a balance of probabilities, and also failed to raise reasonable doubt in respect of the possession charge. Issues [21] Arising from the above facts and the findings of the learned High Court Judge, the gravamen of the Appellant’s complaint can be distilled into two principal issues. i) First, it was contended that the learned High Court Judge erred in failing to make a proper finding of possession with knowledge on the part of the Appellant. The impugned drugs were not found on the Appellant’s person but were instead discovered in the second room, a place to which several individuals had equal access. In the circumstances, it was argued that the element of exclusive possession attributable to the Appellant had not been satisfactorily established. ii) Secondly, it was contended that the learned High Court Judge failed to properly consider the break in the chain of evidence relating to the impugned exhibits. The alleged break in the chain of custody, it was submitted, cast doubt on the integrity and continuity of the exhibits, thereby affecting the reliability of the prosecution’s case. Our Evaluation and Findings Possession, Custody and Control [22] The central complaint raised by the Appellant is that the drugs were discovered in the middle room of the house, which was accessible to other occupants of the premises. It was therefore contended that the learned High Court Judge erred in concluding that possession of the drugs had been established against the Appellant. [23] Having carefully examined the record of appeal and the respective submissions of counsel, we find no merit in this contention. The evidence establishes that a polystyrene box containing 90 lumps of drugs was discovered in the middle room of the house occupied by the Appellant. Chemical analysis later confirmed the substance to be 2,828.60 grams of methamphetamine. [24] It was not disputed that the house was occupied by the Appellant, his wife (SP2) and their two young children. SP2 testified that at the time of the police raid she and her children were asleep in the master bedroom and only emerged after the police knocked on the door. Although SP2 occasionally entered the middle room to store household items, she testified that she had never seen the polystyrene box when she cleaned the house several days prior to the incident. More importantly, SP2 consistently maintained that there were only two sets of keys to the house, one held by her and the other by the Appellant and that no other person had access to those keys. [25] The learned High Court Judge accepted SP2 as a credible witness. It is trite that an appellate court will not readily disturb findings of fact based on the credibility of witnesses unless such findings are plainly wrong or unsupported by the evidence. No such circumstances arise in the present case. [26] A further incriminating circumstance is the discovery of methamphetamine inside the Appellant’s sling bag (Exhibit P12) which was located in the third room of the house. At the time of the raid, the Appellant and SP3 were present in that room. The presence of drugs of the same kind inside the Appellant’s personal bag provides a strong nexus linking the Appellant to the larger quantity of drugs discovered in the house. [27] It is well established that possession in criminal law need not be exclusive. The mere fact that other persons may have had access to the premises does not negate possession if the surrounding circumstances demonstrate that the accused exercised custody and control over the prohibited items. [28] In Siew Yoke Keong v PP [2013] 4 CLJ 149, the Federal Court reiterated the principles articulated in Chan Pean Leon v PP [1956] 1 MLJ 237, namely that possession involves both a physical element and a mental element. The accused must be in a position to exercise power over the object and must also intend to deal with it as the owner. Such intention is ordinarily inferred from the surrounding circumstances of the case. [29] Viewed against these principles, the circumstances in the present case clearly demonstrate that the Appellant was so situated with respect to the drugs that he had the power to deal with them as owner. The drugs were discovered within premises under his control and drugs of the same type were also found inside his personal bag. [30] We are therefore satisfied that the learned High Court Judge was correct in concluding that the Appellant had custody and control of the drugs. Knowledge [31] We are likewise satisfied that the element of knowledge on the part of the Appellant was established. The conduct of the Appellant during the raid was a relevant circumstance. The prosecution witnesses testified that the Appellant appeared visibly nervous when the police officers inspected the polystyrene box. Such conduct is admissible as part of the surrounding circumstances pursuant to section 8 of the Evidence Act 1950. [32] The polystyrene box was not sealed and could be easily opened. Upon opening the box, the police officers detected a distinctive smell emanating from its contents. This was confirmed by the investigating officer and was even noted by the trial court when the exhibits were produced in court. [33] More significantly, methamphetamine was discovered inside the Appellant’s own sling bag. The drugs found in the bag were of the same type as those contained in the polystyrene box. This constitutes a highly incriminating circumstance strongly supporting the inference that the Appellant had knowledge of the drugs stored in the house. [34] Even assuming, for the sake of argument, that the polystyrene box had been placed in the house by another person, which we do not accept, the evidence nevertheless suggests that the Appellant knowingly allowed the items to remain there. In this context, the doctrine of wilful blindness becomes relevant. As explained in Maria Elvira Pinto Exposto v PP [2020] MLJU 361 (FC), a person who deliberately shuts his eyes to the obvious will be treated in law as having knowledge of the fact. [35] The Appellant claimed that he allowed the said individual to store unidentified “canteen supplies” in his house without making any inquiry as to their contents. Such conduct, in our view, amounts to a deliberate avoidance of knowledge. The circumstances therefore support the finding that the Appellant had knowledge of the drugs. The Appellant’s Defence [36] The Appellant sought to attribute the presence of the polystyrene box to an individual known as “Ijam”, who allegedly requested permission to store certain items at the Appellant’s house. However, this explanation did not withstand scrutiny. Under cross-examination, the Appellant conceded that he did not know whether this individual had in fact delivered any items to the house. His suggestion that Ijam might have placed the polystyrene box in the middle room was therefore no more than speculation unsupported by any evidence. [37] The Appellant’s account was further undermined by his own admissions that earlier assertions regarding multiple individuals having access to his house were untrue. The police investigation also revealed that the said individual had no involvement in the offence and there was no evidence that he had ever entered the Appellant’s house. [38] In these circumstances, the learned High Court Judge was plainly correct in rejecting the Appellant’s explanation as a bare and speculative assertion incapable of rebutting the statutory presumption under section 37(da) of the DDA. [39] We also agree with the observation of the learned High Court Judge that the Appellant’s version of events was inherently improbable. The house was occupied by the Appellant, his wife and their two young children. The middle room where the drugs were discovered was not locked and contained the children’s toys. It defies common sense that the Appellant would permit an unrelated individual to enter the house and store unknown items without verifying their nature. Chain of Custody [40] The Appellant also alleged that there was a break in the chain of custody of the drug exhibits. We find no basis for this contention. [41] The chain of custody was clearly established through the testimony of the arresting officer (SP8), the assisting officer (SP9) and the investigating officer (SP12). The evidence shows that the seized items were collected from the house, transported to the police station, properly marked and recorded before being handed over to the investigating officer. [42] SP12 testified that the exhibits were kept in a locked metal cabinet in her office, to which only she had access before they were delivered to the chemists for analysis. The chemists later confirmed that the substances analysed were methamphetamine weighing 2,828.60 grams and 5.19 grams respectively. [43] The alleged one-hour interval during the media conference does not break the chain of custody as there was no evidence that the exhibits left the custody or supervision of the investigating officer during that period. [44] Similarly, the minor discrepancies relating to the colour of the pills or the number of plastic packets do not affect the identity or integrity of the exhibits. This principle was affirmed in Shanmugam a/l Ramalingam v PP [2018] 5 CLJ 326. [45] We are therefore satisfied that the prosecution had established a complete and unbroken chain of custody. The Charge under Section 12(2) punishable under Section 39A(1) [46] It was undisputed that the sling bag (Exhibit P12) belonged to the Appellant. During the prosecution’s case, the evidence of SP2 and SP3 that they had never touched or opened the Appellant’s bag was not challenged. SP3’s evidence that he had no involvement with the drugs found inside the bag was likewise not disputed. [47] It was only during the defence stage that the Appellant alleged that his bag had shifted position and that another bag belonging to an unidentified person was present in the room. These allegations were never put to the prosecution witnesses during cross-examination. The Appellant himself admitted that these matters were raised for the first time during his examination-in-chief. [48] It is well established that a defence must be put to the relevant witnesses at the earliest opportunity. To raise such allegations only at the defence stage would be manifestly unfair to the prosecution witnesses who were deprived of the opportunity to respond. The principle in Wong Swee Chin v PP [1981] 1 MLJ 212 (Federal Court) applies squarely in this regard. In the circumstances, this line of defence clearly bears the hallmark of an afterthought. Conclusion [49] Having considered the totality of the evidence, we are satisfied that the learned High Court Judge had properly evaluated the evidence before arriving at his decision. [50] The prosecution had established that the Appellant had custody, control and knowledge of the drugs in question. The Appellant failed to rebut the statutory presumption under section 37(da) of the DDA on a balance of probabilities. [51] We are also satisfied that the chain of custody relating to the drug exhibits was properly established and remained intact throughout the investigation and trial. [52] In the premises, we find no merit in the appeal. Accordingly, the appeal is dismissed and the conviction and sentence imposed by the learned High Court Judge are hereby affirmed. Dated: 16 March 2026 Sgd NOORIN BINTI BADARUDDIN Judge Court of Appeal Malaysia

Rajit Singh A/L Tara Singh; and

Robin Lim [Rajit Gill & Co. (Ipoh)] Counsel for Respondent:

Solehah Noratikah Binti Ismail [Deputy Public Prosecutor