Matin Bin Sahid v Pendakwa Raya (S-05(M)-44-01/2022)

This was a drug trafficking case that originated from the High Court. The appellant was convicted and sentenced to death for the charge of trafficking in dangerous drugs to wit 169.90grammes of methamphetamine an offence under section 39B(1) (a) of the Dangerous Drugs Act 1952 punishable under section 39B(2) of the same Act. The offence was committed on 17 October 2018 at about 1.00 pm at an unnumbered house, Kg Mangga, Kelabakan Tawau, in the State of Sabah.

The appellant pleaded not guilty to the charge and claimed trial.

At the end of the prosecution’s case, the learned trial judge found that the prosecution had made out a prima facie case against the appellant on actual possession which triggered the statutory presumption of trafficking.

The appellant was ordered to enter his defence.

The appellant elected to give evidence on oath as a sole witness for her defence.

At the end of the defence case, on 6 January 2022, the learned trial judge ruled that the prosecution has proven its case beyond reasonable doubt and the appellant has failed to rebut the presumption under section 37(da)(xvi) of the Dangerous Drugs Act 1952. The appellant was 3 convicted and sentenced to suffer death. Against the said order, the appellant appeal.

On 17 October 2018, acting on a tip-off, Inspector Syed Muhammad Iqbal Bin Syed Yassin (PW2) and his team comprising of eight (8) other police personnel including Pasukan Gerakan Am conducted a raid at an unnumbered at Kg Mangga in Kalabakan.

Upon arrival at about 1.00 pm, PW2 and one Sjn Eddy bin Abdullah entered the house. PW2 found the appellant was sitting in the living hall and there was a table in front of him with both his hand lying on the said table.

PW2 then identified himself as a police officer by showing his authority card to the appellant. The appellant was shocked and immediately got up to run. PW2 and Sjn Eddy managed to apprehend the appellant although there was a bit if a scuffle as he tried to free himself. A body search was conducted but nothing incriminating was found.

On the said table, PW2 found one (1) red plastic package (exhibit P3A) in which there were five (5) transparent packets containing crystalline powder / substances suspected to be methamphetamine (exhibit P3A (1-5)) on the table, a small metal box (Ex P11A) containing a weighing scale (exhibit P11C), a transparent plastic bag with a number of smaller empty transparent plastic bags (exhibit P11B) and a modified straw.

PW2 then seized all these items and issued a Borang Senarai Geledah / Senarai Bongkar (exhibit P9) at the house which was witnessed and signed by the appellant.

PW2 and his team left the house for Ibu Pejabat Polis Daerah Tawau, bringing with them the appellant and the seized items.

On 18 October 2018, at about 1.00 p.m, PW2, Sjn Eddy together with the Investigating Officer Inspector Rafidah Bt Zulkifli (PW3) went to the said house and PW3 herself took several photographs of the crime scene (exhibit P7 1-4) and exhibit P13 (1-6) [10 pieces of photographs].

The seized items were then handed over by PW2 to the Investigating Officer, Insp Rafidah Bt Zulkifli (PW3) who acknowledged receipt. PW3 then sent the seized items to the Kota Kinabalu Chemistry Department of Malaysia on 23 October 2010 at 11.55 am.

From the analysis carried out by the chemist, Puan Siti Marlindrah Binti Jimir (PW1) it was found by her that the seized items were methamphetamine with a total weight of 169.90 grammes. Her report dated 12 December 2018 setting out her analysis was tendered and admitted (exhibit P6).

The appellant elected to give evidence on oath. He chose not to call any of the witnesses offered by the prosecution.

The defence of the appellant in summary is that he was at the unnumbered house on 17 October 2018 because he received a call from a person named Boy to collect a helmet which he wanted to borrow. He was not able to give the full name of Boy, whom he had befriended one week ago.

The appellant had proceeded to the unnumbered house on his brother's motorcycle without wearing a helmet. He testified that he stayed at Kg Sungai Tudak and the distance to Kg Mangga was "2 batu" and it took him 2 hours to get to the said house.

When the appellant reached there, Boy was no longer there. Thereafter, the said house was raid and the appellant was arrested and handcuffed. He was assaulted and was asked to laid down on the floor in front of the house. He did not know what the police did inside the house. After that, he was brought to the police station.

The appellant was not lying when he said that he came to Kg Mangga more than 2 hours without using helmet.

The appellant said the motorcycle belong to his younger brother.

The appellant can't remember the registration number of the motorcycle and the whereabouts of the motorcycle. He was unable to make a police report about the loss of the motorcycle and to get in touch with his brother.

Appellant denied having impugned drug on him.

The appellant was not shown the impugned drug.

The appellant disagreed that the house was used as packing drug.

The said house belongs to Boy.

The appellant disagreed that when the police were making arrest he was seated on the chair in the premise. He said he was arrested when he was standing and then laid on the floor in front of the premise.

The appellant disagreed that he was afraid when the police raided the house.

The arrest was a set up and he was victimized by the police.

When he was arrested, he was asked to sign on a document which he did not read because the police told him that they have no time to explained to him.

An appellate court should be slow in disturbing the findings of facts arrived by the trial court who had the advantage of seeing and hearing the witnesses, unless there are substantial and compelling reasons for disagreeing with the finding.

In Herchun Singh & Ors v. PP [1969] MLRA 382, Ong Hock Thye CJ (as he then was) said as follows: "An appellate Court should be slow in disturbing such finding of fact arrived at by the Judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding”.

In Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58 the Court of Appeal speaking through Harmindar Singh Dhaliwal JCA (as he then was) held as follows: "[20] Nevertheless there are occasions when appellate interference is warranted and these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations. (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors

where there was no proper evaluation of the evidence by the trial judge. (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1);

where the decision arrived at by the trial court was without judicial appreciation of the evidence. (see Gan Yook Chin & Anor v. Lee tng Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1);

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra

where the trial judge was plainly wrong in arriving at his decision. (see Lee ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97);

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him. (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] CLJU 625; [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] CLJU 40; [1984] 1 LNS 40; [1984] 2 MLJ 165); and

where the judgment is based upon a wrong premise of fact or of law. (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] CLJU 1416; [2012] 1 LNS 1416; [2012] 4 MLJ 149)." [34] Bearing the abovementioned principles in mind, we now turn to consider the issues raised by the parties in this appeal. The Appeal [35] Before us, although the petition of appeal contained several grounds, however learned counsel for the appellant submitted that he will be confined to only four (4) grounds of appeal, namely:

The prosecution has failed to prove that the appellant was in control of the said house with the impugned drug found in his possession by the raiding officer.

There was no finger print of the appellant on the transparent packets containing drugs.

That the testimonies and defence raised by the appellant was not inherently incredible; and

The appellant had successfully raised a reasonable doubt in the prosecution case. Our Decision [36] Having considered the submissions of both parties and having perused the appeal records, we unanimously dismissed the appellant’s appeal. Our reasons now as follows:

Failure by the learned trial judge to consider the defence raised by the appellant. [37] The appellant never gave to PW2 and PW3 any personal information about Boy including his handphone number, full name, address, background etc. Hence, it made it highly unlikely for PW2 or PW3 to trace and apprehend Boy. [38] The defence never put the existence of Boy to the prosecution's witnesses. The consequence of the appellant’s failure to disclose his defence at the earliest possible opportunity would detract the weight to be accorded of his subsequent testimony in court as the prosecution was not in position to check on whether the appellant’s version of the facts was true or false. The belated disclosure of the appellant's defence was tainted with elements of afterthought. Apart from detracting the weight to be accorded therein, it would equally render the said evidence lacking in credibility. [39] Thus, the evidence of the appellant about Boy was fictitious and mere figment by the appellant, concocted for his own benefits and does not even raise an iota of doubt in the face of the overwhelming evidence led by the prosecution. For the above reasons, we find that the point taken by the appellant counsel cannot hold water.

The Appellant was there to borrow helmet from Boy [40] The learned deputy public prosecutor contended that this defence was a made-up story by appellant. We agree that it does not make sense that the appellant rode his bike for two (2) hours without a helmet for a distance of 2 miles. Strangely, Boy was not at the house when the appellant arrived at the said house. [41] Moreover, the appellant could not even remember the registration number of the said motorcycle and its whereabout. He claimed that the said motorcycle belonged to his brother. However, the appellant failed to provide any evidence to support his narrative on the motorcycle ride of 2 hours. This matter was never confirmed by any witness including his brother. There was also no police report lodged by his brother on the loss of this motorcycle. Therefore, the appellant’s defence of going to the said house to borrow a helmet from Boy was a sham defence.

The absent of fingerprint evidence linking the appellant to the drug [42] The learned counsel for the appellant argued that the learned High Court Judge erred in law and facts by failure of taking into consideration that the outcome of the finger dusting on the exhibit drug found no finger print of the appellant which could negate the appellant into involvement of drug activities. Thus, actual possession was not made out and the presumption of trafficking pursuant to section 37 (d) of the Dangerous Drugs Act 1952 should not be invoked against the defence. [43] PW3 said in her witness statement confirmed that the finger dusting was made on the seized items as per in the following: “Pada 17.10.2018 jam lebih kurang 07.30 malam, saya dan dibantu oleh Kpl Hadry Bin Ramlee telah menjalankan 'finger dusting' ke atas barang kes 4.2.1 dan 4.2.2 namun gagal menimbulkan sebarang cap jari”. [44] With respect, we beg to differ. In the present appeal, the prosecution had clearly established that the appellant was caught with the dangerous drugs in his possession, hence what else could the appellant do apart from saying that he had no knowledge of the said drugs. Thus, fingerprint lifting evidence, would therefore assumed little value of significance unless of course the testimony of PW2 is wholly discredited (see Yeo Kwee Huat v. Public Prosecutor [2011] 5 CLJ 630]. The evidential status of such evidence is merely of corroborative value. Fingerprints evidence is relevant and of great significance when identity is in doubt which is not the case here. [45] In PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233, Chong Siew Fai CJSS (as he then was) in delivering the judgment of the Federal Court held: “We also find ourselves in agreement with the learned Deputy Public Prosecutor that the learned trial Judge had erred in law when he faulted PW13 the investigating officer for not lifting the finger prints off the wrappings of the cannabis and for not taking photographs of the street light in front of the house No. 129. Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumes little value or significance". [46] The Court of Appeal in PP v Ebrahim Mirzaie Hj Ebrahim Deh Mokhtar [2017] 1 CLJ 575 through Ahmadi Asnawi JCA (as he then was) held: “[38] The evidential value of CCTV evidence. DNA profiles and fingerprint impressions as decided by high authority is only corroborative. The learned trial judge correctly appreciated the position. In PP v Mansor Md Rashid & Anor [1997] 1 CLJ 233, the Federal Court stated that: Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumes little value or significance. [39] Now, having scrutinised the evidence, we were with the learned DPP that even without the CCTV evidence, DNA profiles and fingerprint impressions, there are sufficient evidence to prove the prosecution's case". [40] The evidence of both PW2 and PW3 (DSM Hairudin bin Abdullah) were uncontroverted that they saw the respondent pulling the bag, exh. P10, before and at the time they approached the respondent. The bag they saw and seized was a brown coloured bag carrying the “Sphere” brand name, exh. P10. It was the respondent himself who had put the said bag in the scanning machine and it was equally the respondent himself who had carried the said bag to the narcotics office. Both testified that the examination of the said bag was done in the presence of the respondent. These are uncontroverted direct evidence which needs no further support for its sustenance. [47] In Mogan Raj Ravi & Anor v. PP & Other Appeals [2020] 3 CLJ 240, the Court of Appeal speaking through the judgment delivered by Rhodzariah Bujang JCA (as she then was) held as follows: [36] Lastly, also in relation to the issue of access, learned counsel highlighted to us the evidence adduced at the trial from PW9 as per p. 73 of the appeal record (nota keterangan) that 25 fingerprints were lifted from the impugned exhibits tendered in court and until the day he gave evidence in court, there was no result obtained whose fingerprints were these. The learned DPP agreed that this was so but countered that submission by saying that it was never put to PW9 that Murugaya's fingerprint was one of the said 25. Given their defence that Murugaya was the real culprit in this case, the presence of his, or his uncle's fingerprint for that matter, should have indeed been put to the witness. Nonetheless, case authorities are clear that fingerprint evidence is only corroborative evidence. This was held by the Supreme Court of India in Gade Laksmi Mangaraju v. State of Andra Pradish AIR [2007] Supreme Court 2677 and quoted in this court's decision in Amala Johnson v. PP [2019] CLJU 140; [2019] 1 LNS 140; [2019] MLJU 128 which also referred to the Supreme Court's decision in PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233 where Chang Siew Fai (CJ Sabah and Sarawak) held it was only where the identity of a culprit is in question or is required to be proved would finger print evidence be a great significance and value. In view of the clear evidence in this case based on the testimony of PW2 on the arrest of the appellants and the discovery of the drugs, pistol and bullets, as well as the evidence of PW5, PW7 and PW11, that fingerprint evidence is to us of no significance for without the said evidence the appellants have been proved to be in legal possession of both the drugs, pistol and bullets found in unit 3. [48] Here, there is no reasonable doubt about the identity of the appellant, more so he was alone in the unnumbered house at the material time and PW2 had arrested the appellant when he was in close proximity to the drugs. In addition, PW3 in her witness statement said: “Hasil siasatan saya terhadap rumah tersebut adalah rumah kosong dan tidak ada pemilik. Rumah tersebut tidak ada mempunyai jiran lain dan juga tidak ada bacaan meter elektrik. Saya juga dapati tidak ada sebarang dokumen atau pakaian yang dijumpai yang menunjukkan terdapat orang lain tinggal dirumah tersebut". [49] PW2 gave direct evidence that the appellant was seated next to a table where he had both his hands where the drugs were found coupled with his reaction of being shocked and immediately got up to run upon arrest which when taken together leads to the irresistible inference that in the circumstances the appellant knew about the incriminating items found on the table. Hence, the absence of fingerprint dusting and the argument that the appellant did not own the house and therefore had no control over it is unmeritorious.

Whether the police have falsely implicated the appellant [50] The learned counsel for the appellant argued that the appellant consistently denied being having knowledge of the impugned drugs and the house was not belong to him. The appellant did not see any of the drug exhibits as he was made to lie down by the front door of the house and he didn’t see what was happening during the raid and what the police were doing. Thus, the appellant alleged that the arrest was a set up and the appellant was victimized by the police. [51] With respect, we disagree. There was overwhelming evidence that the appellant had possession of the impugned drugs. The direct testimony of PW2 suffices to explain and prove that the drugs were found on the table in front of the appellant. The testimonies of PW2’s is credible. PW2 had no purpose or reason to fabricate his evidence or concoct it in an attempt to frame or trap the appellant. [52] Reference is made to the Court of Appeal case of Sahrul Mazlee Mohd Khalid v. PP [2022] 1 LNS 4 whereby the court through the judgment delivered by Vazeer Alam Mydin Meera JCA (as he then was) held that: [55] There was no evidence of any prior relationship or any evidence that the appellant knew any members of the police raiding team or vice versa. Thus, the learned trial judge concluded that there was nothing to suggest that the police might have had any motive to frame the appellant. In the absence of any such motive, or evidence, the learned trial judge found that despite the assertion by the defence that the white plastic bag with the drugs was found on the roof of the Viva car outside the house, the evidence established the fact that the appellant was holding the white plastic bag in his hand when apprehended. [94] …The frame up theory advanced by the appellant vaporised into thin air when considering the fact that the large amount of drugs have considerable value. We agree with the learned trial judge that no reasonable person would want to frame up someone by leaving such a huge quantity of drugs with considerable value behind in the bedroom. [53] In the case of Khee Thuan Giap v. Public Prosecutor [2019] 4 MLJ 651, the Court of Appeal speaking through the judgment delivered by Ahmadi Asnawi JCA (as he then was) held as follows: [48] Now, it would also appear that the appellant was accusing SP5, SP6 and D/Kpl Yusrizal bin Yahya of fixing or framing the appellant with the commission of a capital offence by fabricating and manufacturing evidence against him. Hence, of relevant consideration were the motive or motives propelling these witnesses to embark upon such an endeavour. [49] The evidence revealed that SP5, SP6 and D/Kpl Yustizal bin Yahya were total strangers in relation to the appellant. The burden is always upon the appellant to prove their motive or motives in fixing the appellant with the commission of the said offence. In our view, the appellant had miserably failed to show that they have an axe to grind against the appellant to propel them to fabricate and manufacture evidence and to testify adversely against the appellant in the trial. The appellant had equally failed to show that the said prosecution witnesses had harboured a motive to falsely implicate the appellant with the commission of the offence. [50] This court in Dickson Levy all Maria George v Public Prosecutor [2018] MLJU 98; [2018] 1 LNS 135 had reiterated that: [47] Also, there was no rhyme nor reason for the police officers in this case to frame up the appellant with the impugned drugs, as they were just performing their duty (see the cases of Mohd Ali Jaafar v Public Prosecutor [1998) 4 MLJ 210; [1998] 4 CLJ Supp 208 and Goh Han Heng v Public Prosecutor [2003] SGHC 226; [2003]. [48] In Goh Han Heng v. Public Prosecutor, Yong Pung How CJ (Singapore) had this to say: I disagreed with counsel. All that the passage means is that where the accused can show that the complainant has a motive to falsely implicate him, then the burden must fall on the prosecution to disprove that motive. This does not mean that the accused merely needs to allege that the complainant has a motive to falsely implicate him. Instead, the accused must adduce sufficient evidence of this motive so as to raise a reasonable doubt in the prosecution's case. Only then would the burden of proof shift to the prosecution to prove that there was no such motive. To hold otherwise would mean that the prosecution would have the burden of proving a lack of motive to falsely implicate the accused in literally every case, thereby practically instilling a lack of such a motive as a constituent element of every offence. [49] The appellant failed to demonstrate to us any evidence to show that the police had harboured a motive to falsely implicate the appellant. [51] It is apparent that the testimonies of both SP5 and SP6 were grounded upon the factual seizure of the impugned drugs from the right front side pocket of the jeans worn by the appellant upon his arrest outside his house. In our view SP5, SP6 and D/Kpl Yusrizal bin Yahya were mere police officers executing their onerous duties with no reason to fabricate and manufacture evidence against the appellant in the manner as contended by the appellant and his witnesses. There was equally nothing inherently improbable in their evidence. [54] Finally, we are unable to agree with the learned counsel for the appellant complains that the defence of the appellant was not properly assessed and evaluated by the learned trial judge. We find that the learned judge had considered all aspects of the defence and weighed the evidence adduced by the defence in totality with the evidence of the prosecution. There is sufficient judicial appreciation of the evidence by the learned trial judge. We do not find any good reason to interfere with these findings of fact. The analysis of the defence case is found from paragraph 52 onwards of the grounds of judgment: [52] The duty of the court, at the conclusion of the trial, is to consider all the evidence adduced and decide whether the prosecution has proved its case beyond reasonable doubt: section 182A, Criminal Procedure Code. [53] The accused explained that he was at the unnumbered house on 17 October 2018 because he received a call from a person named Boy to collect a helmet which he wanted to borrow. He was not able to give the full name of Boy, whom he had befriended for a week. [54] The accused had proceeded to the unnumbered house on his brother's motorcycle without wearing a helmet. He testified that he stayed at Kg Sungai Tudak and the distance to Kg Mangga was "2 batu," and it took him 2 hours to get there from his kampong. The prosecution submitted and I agree that it defies belief for the accused to ride a motorcycle for 2 hours without a helmet, in order to borrow a helmet from Boy who was not there when he arrived. In the words of the accused: "Sebelum si Boy telefon saya, saya ada meminjam helmet motor dengan dia. Itulah si Boy suruh saya dating ke Kg Mangga mengambil helmet tempat si Boy. Lepas itu saya sampai, tiba-tiba serbuan polis". See NOP, Q & A 289. [55] Of the motorcycle, the accused said he could not remember the registration number and "semasa saya ditangkap, motor itu saya tidak tahu berada di mana sekarang". He went on to say: Adik saya tidak pernah membuat laporan bahawa motornya hilang dan saya pun tidak pernah berhubung dengan adik saya. See NOP, Q & A 298-300. [56] Of the phone with which he allegedly received the call from Boy, he said that "waktu saya ditangkap, handphone saya hilang di IPD Tawau dengan baju saya sekali", but the loss was not due to the police as "saya lupa memberi handphone saya kepada Pegawai bertugas". See NOP, Q & A 266-267. [57] There was no evidential basis, such as the existence of the motorcycle and the handphone number or any bills by the service provider, to even provide the slightest of evidence to support the accused's narrative on the motorcycle ride of 2 hours or that Boy had called him. [58] In accounting for and thereby acknowledging his presence at the unnumbered house, the accused's earlier argument that there was no "real picture of the place of incident" because photographs were not taken of the location on the same day he was arrested is further weakened. In any case, when cross-examined and shown exhibit P7(1-4), the accused agreed that those photographs showed the place where he was arrested. See NOP, Q & A 302. [59] As for the accused's allegation that he was wrongly implicated by the police or framed, and that he did not see any of the drug exhibits as he was made to lie down by the front door of the house and did not see what the police were doing (NOP, Q & A 249), it is without merit. The accused signed on the seizure list (P9) which spoke of the red plastic bag and also the 5 transparent plastic packets containing the drugs. [60] The accused did not deny signing it. However, he claimed that he could not read and did not know the contents of P9, and he had asked "Tuan, apakah isi kandungan borang ini?" According to the accused's narratuve: "Semasa saya dibawa ke IPD Tawau dan saya disuruh menandatangani borang yang saya tidak boleh baca kerana pihak Narkotik tidak menjelaskan isi kandungan borang itu. Lalu, mereka berkata "tidak ada masa" and went on to say "dia marahi saya." The narrative of the accused is not in the slightest persuasive. P9 comprises only a single page but the accused claimed "pihak Narkotik membawa borang yang tebal". See NOP, Q & A 273-277. [61] Concerning the accused's claim that he was "diperangkap dan dianiaya oleh pihak polis", reference may be made to Khee Thuan Giap v. Public Prosecutor [2019] 4 MLJ 651. [62] Also, reference may be made to Dickson Levy a/l Maria George v. Public Prosecutor [2018] MLJU 98 [63] In the instant case, the court agrees with the learned DPP that there is not an iota of evidence of motive by any of the police officers to frame or fix the accused. [64] In addition, the defence did not put the crucial parts of the accused's narrative to the prosecution witnesses, including particularly the existence of Boy and the accused happened to be at the unnumbered house to borrow a helmet from Boy. As was held by Abdul Hamid Embong JCA (as he then was) in delivering the judgment of the Court of Appeal in Megat Halim Megat Omar v. PP (2009) 1 CLJ 154: "Although in our criminal jurisprudence, there is no burden on an accused person to prove his innocence but merely for him to raise a reasonable doubt as to his guilt, it is trite that his defence should be put to the prosecution at an early stage during the prosecution case. Failure to do so may move the trial court to dismiss a particular line of defence as an afterthought, or a recent invention as happened in this case. [65] Although the accused testified that he felt frightened when the raid happened, as he is a foreigner without a passport or identification card (NOP, Q & A 319), PW2 was not cross-examined on his testimony that there was a scuffle and the accused tried to escape or flee (WSPW2, paragraphs 7-8). [66] Even if the accused is given the benefit of doubt as to why he looked frightened (see Abdullah Zawawi v. PP [1985] CLJ Rep 19; [1985] 2 MLJ 16), there are other compelling strands of evidence to prove his guilt, primarily PW2's evidence that the accused was seated not only in close proximity to the drugs, but his hands were placed on the table where the drugs were found. Knowledge may be inferred from other facts (see Parlan Bin Dadeh v. Public Prosecutor [2008] 6 MLJ 19). He was alone there. It may be added that PW3 testified that there were no documents or clothing at the unnumbered house which would indicate the presence of some other person or inhabitant, and her testimony was not contradicted. See WSPW3, paragraph 20. [67] The explanation as to the accused's presence at the unnumbered house is so incredulous as to defy belief, and it does not cast reasonable doubt on the prosecution's case that he had actual possession of the drugs. In so holding I bear in mind that a reasonable doubt cannot be an imaginary doubt or conjecture, but must be a doubt so solemn and substantial as to produce uncertainty as to the decision to be given. See PP v. Saimin & Ors (1971) 1 LNS 115. In the words of Sharma J: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge". [68] Actual possession having been proven, the presumption of trafficking is triggered by the weight of the methamphetamine in this case, 169.60 grams, which exceeds the threshold of 50 grams under section 37(da)(xvi) of the Dangerous Drugs Act 1952. See PP v. Zulkifli Arshad (2010) 6 CLJ 121. [69] Taking into account the totality of the evidence, I find that the prosecution has proved its case against the accused beyond reasonable doubt. The accused has failed to rebut the statutory presumption of trafficking on a balance of probabilities-see section 105 of the Evidence Act 1950 and PP v. Yuvarai (1968) 1 LNS 116 - and to cast a reasonable doubt on the prosecution's case in other aspects. [70] The accused is accordingly convicted of the offence in section 39B(1)(a) of the Dangerous Drugs Act 1952 with which he was charged. PW3's testimony that "sepanjang siasatan dijalankan, OKT tidak memberi sebarang maklumat yang boleh disiasat secara lanjut untuk membantu dalam pemberantasan aktiviti pengedaran dadah" (WSPW3, paragraph 21) was unchallenged and taken as accepted (Wong Swee Chin v. Public Prosecutor [1981] 1 MLJ 212). The alternative punishment of life imprisonment and whipping of no less than 15 strokes is accordingly not available to the accused. As such, the court can only sentence the accused to death. Conclusion [55] Having deliberated on the entire defence evidence, we unanimously did not consider the appellant story to be reasonably true or consistent with his innocence. This is especially so where the findings of facts rest upon the substratum of oral evidence, the credibility of which is entirely for the learned trial judge to decide. [56] Further, we find that the appellant has failed to rebut the presumption of trafficking on a balance of probabilities and the prosecution has proved its case against the appellant beyond reasonable doubt. [57] Hence, we find no real substance in this appeal to merit our interference. The conviction against the appellant is safe. The appeal against conviction is dismissed. [58] On sentence, with the Abolition of Mandatory Death Penalty Act 2023 (Act 846) which came into effect on 4 July 2023, the Court may consider the mitigating and aggravating factors in the exercise of its discretion in determining the appropriate sentence with either death by hanging or life imprisonment with whipping of not less than 12 strokes. [59] Having considered the facts of the case, the element of public interest, the amount of drugs involved, the mitigation by the learned counsel on behalf of the appellant, we unanimously ordered as follows:

the appellant appeal against conviction for trafficking is dismissed;

(ii) the appellant appeal against the death sentence is allowed. The sentence imposed by the High Court is set aside and substituted with sentence of life imprisonment with effect from the date of arrest (17 October 2018) and twelve (12) strokes of whipping. Date: 10 Mac 2025 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant : Jhasarry P. Kang [Kang Advocates] For the Respondents : Tengku Shahrizam Tuan Lah [Deputy Public Prosecutor]