2.2019 at about 2.35 p.m. (Skudai Report 1762/19, lodged by Inspektor Mazliza binti Muhammad), returned a positive result for methamphetamine. SP4 confirmed this in cross-examination and confirmed further that what was found in the motorcar and what was found in the motorcycle were different drugs. This is addressed, to the extent relevant to the defence case, in Section G below. It is not a matter this court is required to determine and does not form part of the present charge. [10] It is convenient to record here that, at a later stage of these proceedings, when the motorcycle P8 was produced before this court, both the front basket (raga) and the seat sponge, both said to have been present at the time of recovery, were absent. This became a significant plank of the defence case, addressed fully in Section G below. C. THE DUTY OF THE COURT AT THE END OF THE PROSECUTION’S CASE [11] Section 180(1) of the Criminal Procedure Code (“the CPC”) requires the court, at the close of the prosecution’s case, to consider whether a prima facie case has been made out against the accused. The applicable test is well settled. In Balachandran v PP [2004] 2 MLRA 547, the Federal Court, per Augustine Paul JCA, held: “A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal … The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen.” [12] The Federal Court there further explained that, because the accused can be convicted on the prima facie evidence alone should he elect to remain silent, that evidence must already have reached a standard capable of supporting a conviction beyond reasonable doubt, although it cannot, at the close of the prosecution’s case, properly be described as a case that has, at that point, actually been so proved; that further and final determination is reserved for the conclusion of the whole trial under section 182A(1) of the CPC, addressed in Section F below. The exercise required of the trial court at the earlier stage is a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established. [13] In PP v Mohd Radzi Abu Bakar [2005] 2 MLRA 590, the Federal Court set out the steps to be followed by a trial court at the close of the prosecution’s case: the evidence must be subjected to a maximum evaluation, the credibility of each prosecution witness carefully scrutinised, and all reasonable inferences drawn, with any inference favourable to the accused to be preferred where the evidence admits of more than one inference, a principle traced by the Federal Court there to Tai Chai Keh v Public Prosecutor [1948] 1 MLRA 241 (CA) and Public Prosecutor v Kasmin bin Soeb [1974] 1 MLRH 108 (HC). The court must then ask itself whether, were the accused to elect to remain silent, it would be prepared to convict on the evidence before it. If the answer is in the affirmative, the defence must be called; if the accused thereafter elects to remain silent, he must be convicted, since it is not then open to the court to re-assess the evidence to determine afresh whether the prosecution had established its case beyond reasonable doubt; if he elects to give evidence, the court proceeds, at the conclusion of the trial, by the steps identified in Mat v Public Prosecutor [1963] 1 MLJ 263 (HC). It follows from this sequence that the maximum evaluation conducted at the close of the prosecution’s case is not a provisional or tentative exercise to be lightly disturbed. It is the mechanism by which the trial court tests, once and for all on the prosecution’s evidence alone, whether that evidence is capable of sustaining a conviction, and it is only the accused’s own evidence, given thereafter, that can alter the position so reached. [14] It was upon this standard that the learned predecessor judge, having heard the evidence of SP1 to SP4 and having conducted the maximum evaluation required of him, delivered his decision on 28.5.2025. D. THE INGREDIENTS OF THE OFFENCE: THE PRIMA FACIE FINDINGS [15] The three ingredients of a charge under section 39B(1)(a) of the DDA are, first, that the substance in question is a dangerous drug; second, that the accused was in possession of it, with knowledge of its nature; and third, that the accused was trafficking in it, whether by direct proof or by the operation of the relevant statutory presumption. [16] As to the first ingredient, the identity of the drugs, the chemist evidence of SP3 that P5A, P5B and P5C contained cannabis of net weight 1,918.26 grams was not challenged by any expert evidence called on behalf of the defence, nor was SP3’s qualification, his laboratory methodology, or the chain of custody of the drug exhibits from seizure to analysis impugned in any material respect. It is well established that a failure to cross-examine a witness on a crucial part of the case amounts to an acceptance of that witness’s testimony, and that uncontested expert evidence is properly taken at face value: Wong Swee Chin v PP [1980] 1 LNS 138 (FC); Munusamy v PP [1987] 1 MLJ 492 (SC). SP3’s evidence that the exhibits he analysed contained cannabis, and nothing else, was accordingly not merely unrebutted but positively confirmed under cross-examination, when SP3 was specifically asked whether anything other than cannabis had been submitted to him and answered that nothing had. The identity of the substance as cannabis was therefore accepted as establishing the presence of a dangerous drug within the meaning of the Act. Furthermore, this quantity, being substantially in excess of the 200-gram threshold prescribed under section 37(da) of the DDA, activates the statutory presumption of trafficking. [17] As to the second ingredient, possession, the learned predecessor judge’s decision, delivered orally on 28.5.2025, recorded his findings in the following terms: “Mahkamah ini telah menimbangkan secara maksima keterangan yang dikemukakan sepanjang kes pendakwaan dan setelah menghalusi hujahan bertulis pihak-pihak, Mahkamah berpendapat: (a) Pendakwaan membuktikan tertuduh mempunyai kawalan atau jagaan ke atas dadah berbahaya yang disembunyikan di bawah tempat duduk motorsikal yang diparkir di Skudai Parade. Tertuduh mempunyai kunci motorsikal di mana dadah berbahaya dijumpai dalam keadaan yang tersorok. Tertuduh telah membawa pasukan polis di mana motorsikal yang berkaitan penyimpanan dadah. Keterangan ini diterima di bawah s. Akta Keterangan 1950 (Akta itu). Mahkamah menolak keterangan di bawah s.27 Akta itu.” [18] It follows that possession was found to have been proved by direct evidence, comprising the accused’s exclusive custody of the motorcycle key and his own conduct in leading the police party to the motorcycle, admissible under the Evidence Act 1950 generally and, specifically as to the conduct, under section 8 thereof. Section 8 renders relevant the conduct of any party to a proceeding where that conduct influences, or is influenced by, any fact in issue or relevant fact, whether antecedent, contemporaneous or subsequent to those facts. It has been held, in Parlan bin Dadeh v PP [2009] 1 CLJ 717 (FC), that such conduct must bear a direct and immediate relationship to the fact in issue, and must not be conduct brought about by some other agency, before it can be treated as probative. The learned predecessor judge specifically rejected, at that stage, the statement said to have been given by the accused to SP2 acknowledging the presence of drugs, holding that it was not properly admissible under section 27 of the Evidence Act 1950. Possession was accordingly found to have been proved by direct evidence, without recourse to the presumption of possession under section 37(d) of the DDA. [19] This court observes that this approach is consistent with the guidance in Ng Mee Yee & Anor v PP [2025] 6 CLJ 343 (CA) and the constitutional concerns identified in Alma Nudo Atenza v & Another Appeal [2019] 5 CLJ 780 (FC), both cited therein, to the effect that a court must be clear whether it relies on direct evidence or on a statutory presumption of possession, so as to avoid an impermissible double invocation of presumptions in respect of both possession and trafficking under section 39B(1)(a) of the DDA. The significance of this distinction is not a merely technical one. Where possession is established only by presumption under section 37(d), an accused is required to rebut that presumption on a balance of probabilities before the further presumption of trafficking under section 37(da) even arises. To permit both presumptions to operate cumulatively, each reinforcing the other without either being independently established by evidence, would place upon an accused a burden considerably heavier than the law permits, and it was precisely this concern that led the Federal Court in Alma Nudo Atenza to hold the double presumption formerly available under section 37A of the DDA to be unconstitutional. The finding here, that possession rested on direct evidence and not on presumption, means that only a single presumption, that of trafficking under section 37(da), fell to be rebutted by the accused, and this court has approached the defence case, throughout Section G below, on that correct and more favourable footing. [20] As to the third ingredient, trafficking, the learned predecessor judge’s decision continued: “(c) Pendakwaan membuktikan pemilikan dadah berbahaya secara terus. Sekaligus anggapan pengedaran dadah berbahaya di bawah s.37(da) Akta Dadah Berbahaya 1952 diaktifkan.” [21] The net weight of 1,918.26 grams of cannabis found in the accused’s possession being substantially in excess of the 200-gram threshold under section 37(da) of the DDA, the statutory presumption of trafficking was accordingly invoked. [22] On this basis, the learned predecessor judge ruled: “(d) Pendakwaan berjaya membuktikan kes prima facie di akhir kesnya. Tertuduh dipanggil untuk membela diri atas Pertuduhan Pindaan (P2).” [23] This court, for the reasons already given in paragraph [3] above, adopts this finding as the position at which the trial stood when the defence was called, without purporting to have independently re-evaluated the prosecution’s evidence, and has approached the defence case that follows on that footing. E. THE DEFENCE CASE [24] Upon the defence being called, the accused elected to give evidence under oath as SD1, rather than remain silent or make an unsworn statement from the dock, an election that entitled his evidence to be tested by cross-examination and to be weighed by this court in the same manner as that of any other witness. The defence called one further witness, SD2, Sarjan Muhammad Shahril bin Md Samri, an officer involved in the investigation into the theft of the motorcycle. No other witness was called on behalf of the accused, a matter of some significance addressed further in Section G below. [25] The accused’s evidence, objectively summarised, was as follows. In his witness statement, PSSD1, he stated that he had stolen the Yamaha 135LC motorcycle and had no knowledge of drugs said to be concealed within it, describing himself as “seorang pencuri dan bukan pengedar dadah seperti dituduh”. He stated that he was also, separately, a user of drugs, but not a trafficker, and that on the night in question he had already consumed a controlled substance and had begun to feel “khayal”. He described being arrested while in the Perodua Myvi bearing registration JJP 8238, itself another stolen vehicle, at about 4.45 a.m., while in that intoxicated state, and being questioned by police about a stolen motorcycle, whereupon, still in that state, he admitted to the theft. He said the police then brought him to the parking area of a shopping centre, where he observed the police cut open the sponge of the motorcycle’s seat and recover the drugs (“Setelah dibawa ke motorsikal di tempat parkir tersebut, saya lihat polis mengorek sponge pada kerusi motor tersebut”). He said he was given no caution before being questioned about the stolen motorcycle. He maintained that he had no knowledge whatsoever of the drugs found within it, and that the motorcycle was, in his belief, accessible to anyone, there being, on his account, no evidence led by the police as to its true ownership at the material time or as to why the motorcycle produced for identification before this court differed from the one he said he observed at the scene. He said he considered it unjust that he should be convicted of so serious an offence which, on his account, he did not commit. [26] A central plank of the accused’s evidence, both in his witness statement and at trial, was a contention that the motorcycle produced before this court, P8, was not the same motorcycle from which the drugs had been recovered. In his witness statement he said: “Saya juga ingin menyatakan bahawa motorsikal yang dibawa oleh Polis ke Mahkamah untuk menunjukkan ke Yang Arif Hakim juga bukan merupakan motor yang dicuri saya. Motor tersebut jelas tiada raga atau sponge yang pihak Polis mengorek pada mulanya sepertimana motor yang saya telah lihat di tempat parkir tersebut.” [27] He maintained that, without the sponge being cut open, the drugs could not possibly have been seen (“Tanpa mengorek span tempat duduk, boleh dadah yang disembunyikan dijumpai? Langsung tidak mungkin disebabkan tidak dapat dilihat sama sekali.”). [28] Under cross-examination, however, this contention was substantially undermined by the accused’s own concessions. He accepted that he had stolen the motorcycle more than a month before the incident, that it had remained parked near his residence throughout that period, and that he had ridden it before the night of his arrest (“Sebelum tangkapan memang ada”). He agreed that the registration plate on the motorcycle produced in court, JST 8476, was the same plate number recorded at the time of seizure, and confirmed, when it was put to him, that the the Borang Bongkar (Exhibit P6) recording the key taken from him identified it with that same registration. He agreed that the police witnesses throughout the trial had identified the motorcycle produced in court as the one seized from him, save that, on his account, “ada yang ragu-ragu” (some had doubts). When it was put to him that his account of the motorcycle being a different one was a mere fabrication (“keterangan kamu berhubung motor tak sama tu rekaan semata-mata je?”), he answered “Tak setuju”; yet when asked whether he had ever lodged a police report to that effect, he answered “Tidak ada”, and when asked whether any document at all recorded such a denial, he again answered “Tidak ada.” He denied the suggestion, when it was put to him directly, that he had at no time informed the police, at the point of his arrest or at any time during the investigation, that he had no knowledge of the drugs or that the drugs were not his, claiming that he had done so. However, when pressed as to whether any document supported his claim to have denied ownership of the drugs at an earlier stage, he accepted that none existed (“Rekod percakapan je tak ada”; “Buat laporan polis tak? Tak ada”; “tak ada apa-apa dokumen yang kamu boleh kemukakan hari ini dekat Mahkamah? Tidak ada.”). He accepted, finally, that he was equally unable to produce any CCTV footage in support of his account of a different motorcycle, being asked, “kalau kamu nak kata motor tu pun bukan, CCTV pun kamu tak dapat kemukakan pada hari ini, betul?”, and answering, “Betul.” [29] The accused’s evidence as to his own state of awareness during the relevant events was, on the record, unclear and, at points, internally inconsistent. In the course of cross-examination, it was put to the accused that his witness statement contained, at what was identified as its third paragraph, the sentence that he had begun to feel aware (“sudah mula sedar”) during the journey to the shopping centre. It subsequently emerged, and was confirmed on the record, that this sentence did not in fact appear in the witness statement ultimately confirmed by the accused; it had featured only in an earlier draft, prepared before final instructions had been taken from him, which was never filed and was formally withdrawn once the discrepancy came to light, the confirmed statement being thereafter marked as PSSD1. This court accordingly proceeds on the footing that PSSD1 contains no assertion that the accused had begun to feel aware during that journey. In the result, the accused variously answered, when asked whether he was already aware by the time he reached Skudai Parade, “Belum”, “Tak pastilah”, and, on one occasion, “Mungkin”; and, when it was put to him that he must have been aware by the time he was examined at the police station, he answered “Setuju”. This court addresses the weight, if any, to be given to this aspect of the evidence in Section G below. [30] SD2 testified as to the theft investigation: the theft report lodged by the registered owner, Lee Kok Keong, on 14.1.2019 (D18), the chassis and engine numbers of the motorcycle, and the accused’s guilty plea in respect of the theft under section 411 of the Penal Code. SD2 was not present at the scene of the accused’s arrest, had no involvement in the drug investigation, and was not able to speak to the circumstances in which the exhibit P8 was later produced before this court, including its condition at that later stage. He was, on his own evidence, not the officer responsible for the identification of the motorcycle when it was earlier produced before the learned predecessor judge, and could not assist as to what had become of the raga or the sponge. F. THE DUTY OF THE COURT AT THE CONCLUSION OF THE TRIAL [31] Section 182A(1) of the CPC requires this court, at the conclusion of the trial, to consider all the evidence adduced and to decide whether the prosecution has proved its case beyond reasonable doubt. Where, as here, the accused elects to give evidence, the approach to be taken in evaluating that evidence is that laid down in Mat v Public Prosecutor, as applied by the Federal Court in PP v Mohd Radzi Abu Bakar, discussed in Md Zainudin bin Raujan v PP [2013] 3 MLJ 773 (FC), and affirmed by the Court of Appeal in Ng Mee Yee & Anor v PP. In substance, this court must ask: if the accused’s explanation is believed, he must be acquitted; if it is not believed but nevertheless raises a reasonable doubt as to the prosecution’s case, he must be acquitted; if it neither is believed nor raises a reasonable doubt, but the court is not otherwise satisfied that the prosecution has proved its case beyond reasonable doubt, he must be acquitted; and only if the explanation is disbelieved and raises no reasonable doubt, and the prosecution’s case is otherwise proved beyond reasonable doubt, may the accused be convicted. [32] It bears emphasis, consistent with Duis Akim and as reiterated by the Federal Court in Ariff Arhannan Che Udin v PP [2022] 4 CLJ 13, that this exercise does not permit this court to revisit the findings made at the close of the prosecution’s case. As the Federal Court there observed, the trial court must be mindful not to “revisit” its earlier findings at the close of the prosecution’s case; the doubt that entitles an accused to an acquittal at the conclusion of trial must be real, reasonable and arise from the evidence, not one conjured to create a difficulty notwithstanding that every essential ingredient of the offence had already been proved by credible evidence at the close of the prosecution’s case. This court’s task at this stage is accordingly confined to testing the defence evidence against the case already found to be prima facie proved, and to determining whether that evidence, taken with the whole of the evidence now before the court, raises a reasonable doubt or otherwise prevents the prosecution’s case from being proved beyond reasonable doubt. [33] This court is conscious that the standard it now applies, under section 182A(1) of the CPC, is a higher one than that applied at the close of the prosecution’s case under section 180(1), and that the evidential base before this court is correspondingly wider, comprising not merely the prosecution’s evidence but the whole of the evidence including that of SD1 and SD2. The distinction between the two exercises, and the reason Duis Akim does not permit the earlier findings to be disturbed, lies precisely in this: the maximum evaluation at the close of the prosecution’s case tests whether that evidence, standing alone, is capable of sustaining a conviction; the exercise at the conclusion of the trial does not repeat that test on the same evidence, but asks the further and different question whether the accused’s own evidence, now added to the record, displaces the conclusion already properly reached. This court has approached its task on that basis throughout Section G below: it has not asked whether it would itself have found a prima facie case on the prosecution’s evidence alone, a question no longer open to it, but has asked only whether the enlarged evidential base, including the defence evidence, leaves the prosecution’s case proved beyond reasonable doubt. [34] Because the statutory presumption of trafficking under section 37(da) of the DDA was invoked, the burden shifted to the accused to rebut that presumption, not by raising a mere reasonable doubt, but on a balance of probabilities. The nature of that burden is settled by the Federal Court in PP v Yuvaraj [1968] 1 MLJ 238, where it was held: “The burden of rebutting this presumption can be said to be discharged by a defence as being reasonable and probable.” [35] The Federal Court there explained that this standard, while lower than that borne by the prosecution, nonetheless requires the facts relied upon by the defence to be proved, not by showing a mere possibility that they exist, but by showing the probability of their existence, that degree of probability being a matter of prudence assessed in the circumstances of the case. It follows that an accused seeking to rebut the presumption of trafficking must do more than assert an innocent explanation; he must adduce evidence making that explanation reasonably and probably true, and it is against that standard, rather than the lower standard of raising a mere reasonable doubt, that the defence evidence addressed in Section G below has been evaluated in relation to the third ingredient of the charge. [36] The definition of reasonable doubt applied by this court is that stated in PP v Saimin & Ors [1971] 2 MLJ 16 (HC): it is not a mere possible or imaginary doubt, but one which, after a full comparison and consideration of the evidence, leaves the mind in a state where it cannot be said that an abiding conviction of the truth of the charge has been reached. As was said in that case, the proof of a case against an accused depends not upon the absence or weakness of his explanation, but on the positive affirmative evidence of guilt adduced by the prosecution. It is against that standard, and not against any lesser standard, that this court has evaluated the whole of the evidence in this trial. G. EVALUATION AND ANALYSIS OF THE DEFENCE CASE [37] This being the most consequential part of these grounds, this court addresses each strand of the defence case in turn, before standing back to consider the cumulative effect of the whole. The instructions given to counsel on both sides, and the manner in which the case was argued before this court, proceeded on the footing that the defence case comprised a number of discrete points, each said to cast doubt on one or another aspect of the prosecution’s proof of knowledge. This court has thought it right to examine each of those points on its own footing, giving to each the weight it properly deserves, neither dismissing any point summarily nor allowing any single point, however superficially attractive, to be treated in isolation from the whole body of evidence of which it forms only a part. This court has, in particular, been careful to distinguish between matters that are properly probative of the accused’s state of knowledge, and matters that, however troubling in themselves, are ultimately neutral or collateral to that central question. It is only after that discrete exercise has been completed, in Sections G1 to G12 below, that this court turns, in Sections G13 and G14, to the necessary task of weighing the whole together. G1. The Narrow Compass of the Dispute [38] It is of some importance to first identify what is, and what is not, in dispute. The accused does not dispute that he stole the motorcycle, that he retained its key throughout the period he had it, that he parked it at Skudai Parade, or that cannabis weighing 1,918.26 grams was found concealed within its seat sponge at that location. He does, however, vigorously dispute that he used it to travel to Skudai Parade on the night in question, that he knew precisely where it was parked, and that he led the police directly to it. What is disputed, at its core, is a single question: whether the accused knew that the cannabis was there. Around that single question, the defence has raised a number of subsidiary points, each considered below, before this court returns to the central question itself. G2. The Stolen Motorcycle and the Six-Week Custody [39] The defence submits that, because the motorcycle was stolen and not owned by the accused, the natural inference of knowledge that might otherwise attach to a vehicle owner does not arise, and that an unknown number of persons may have had access to the motorcycle before the accused took it. This court does not accept that the fact of theft operates to the accused’s advantage in the manner submitted. The evidence, corroborated independently by SD2, establishes that the theft was reported by the owner, Lee Kok Keong, on 14.1.2019 (D18), and that the accused was arrested on 25.2.2019, a period of some six weeks. Throughout that period, on the accused’s own account, he retained exclusive and continuous custody of the motorcycle and its key; he confirmed under cross-examination that he had ridden it before the night of his arrest and that it had remained at the location near his residence throughout. This period of exclusive custody is considerably longer than the twenty minutes of exclusive use which the Court of Appeal, in Harvinder Singh a/l Joginder Singh v PP [2018] MLJU 51, found sufficient to support an inference of knowledge of drugs concealed in a motorcar under the accused’s control, holding that even so short a period gave the accused there “all the time in the world” to pick up the said drugs along the way before his arrest. If twenty minutes suffices to found such an inference, six weeks of continuous, exclusive custody, during which the accused retained the only key, affords a substantially stronger evidential foundation for it. The Court of Appeal in Harvinder Singh drew on a consistent line of authority to the same effect, including Parlan bin Dadeh v PP, Khairuddin bin Hassan v PP [2010] 6 MLJ 145 (FC) and Aedy Osman v PP [2011] 1 CLJ 273 (CA), each holding that exclusive control and use of a vehicle in which drugs are found gives rise to a strong inference of knowledge of their presence, an inference proved by circumstantial reasoning rather than direct admission, since, as the Federal Court observed in PP v Abdul Rahman Akif [2007] 4 CLJ 337, “knowledge cannot be proved by direct evidence, it can be proved by inference from the surrounding circumstances,” the possible variety of circumstances capable of supporting such an inference being, in that court’s words, infinite. The fact of theft explains why the accused had no legitimate title to the motorcycle; it does not explain away, still less negate, the inference arising from prolonged and exclusive physical control of it. [40] This court has also considered whether the evidence admits of any inference favourable to the accused which this court is bound to prefer, consistent with the principle discussed in paragraph [13] above. This court can identify no such competing inference realistically arising on the evidence. The only inference the defence invites is that some unidentified third party, at some unidentified point during the six-week period, gained access to a motorcycle to which only the accused held the key, and effected a concealment requiring the seat to be cut open and later reassembled, all without the accused’s knowledge. That is not a competing inference reasonably arising from the evidence; it is a bare hypothesis unsupported by any evidence at all, and the authorities are clear that the benefit of the doubt to which an accused is entitled applies to inferences fairly arising from the evidence, not to speculative possibilities of this kind: PP v Ku Lip See [1981] 1 MLJ 258 (HC). G3. The Concealment Within the Seat Sponge [41] The defence relies on the fact, undisputed on the evidence, that the drugs could not be seen or retrieved without cutting into the sponge beneath the seat, and the accused maintained repeatedly, both in his witness statement and under cross-examination, that this made it “langsung tidak mungkin” for him to have known of their presence. It is submitted that this level of concealment is inconsistent with knowledge on the part of a person who merely used the motorcycle as ordinary transport. This court has considered this submission with care, for it is, in principle, capable of cutting either way. Concealment of this elaborate a nature, requiring the seat cover to be lifted and the sponge itself to be cut and later reassembled, is equally consistent with an inference that it was the accused himself, having had six weeks of exclusive and undisturbed access to the motorcycle, who effected or arranged that concealment. The very sophistication that the defence points to as exculpatory is, on a plain and equally available reading of the evidence, inculpatory: it points to a deliberate and considered act of concealment by someone with sustained access to the vehicle, a description that fits no one so well as the accused. Concealment of drugs within a vehicle is itself capable of amounting to an act of trafficking, as the Court of Appeal confirmed in Ng Mee Yee & Anor v PP, where concealment of drugs in a cavity behind an air-conditioning unit adjoining a wardrobe was held to fall within the definition of trafficking in section 2 of the DDA, that definition extending to the act of “keeping” or “concealing” or “storing” a dangerous drug. The elaborateness of the concealment here does not, without more, assist the accused. It is at least as consistent with his guilt as with his innocence, and the burden being his to discharge on a balance of probabilities, a fact equally consistent with either conclusion does not advance his case. This court further notes, as the Court of Appeal observed in Ng Mee Yee, that the larger the quantity of a drug concealed, the stronger the inference that it is not intended for personal consumption but for trafficking, and the more convincing the evidence needed to rebut that inference: Ong Ah Chuan v PP [1981] 1 MLJ 64 (Privy Council). A quantity of 1,918.26 grams of cannabis, deliberately concealed within a purpose-cut cavity in a motorcycle seat, is not a quantity or a manner of concealment consistent with incidental or accidental presence, and the accused has adduced no evidence, beyond his own denial, capable of displacing the inference that naturally arises from it. [42] A further and distinct difficulty with the defence account arises from the accused’s own admitted, recent physical use of the motorcycle. The accused confirmed in his evidence that he rode the motorcycle before his arrest (In cross-examination: “Yalah sebelum tangkapan soalan saya kamu ada naik motosikal tersebut?” “Sebelum tangkapan memang ada ah”; In re-examination: "Bila kamu pandu masuk motosikal ini?" "Tengah hari sebelum tangkapan"), and the evidence of SP4, based on CCTV footage taken at the entrance of the Skudai Parade car park, was that a motorcycle resembling the one in question was seen entering the car park on the night before the accused’s arrest, ridden by a man wearing clothing matching that worn by the accused when he was arrested. This court treats SP4’s evidence on this point with appropriate caution, since SP4 himself frankly conceded that the recording was of poor quality, taken at night, and did not permit him to confirm either the registration plate of the motorcycle or the rider’s face, his identification being limited to a general impression of clothing pattern; this court accordingly treats it as corroborative only, and not as conclusive proof on its own. It is not, however, necessary to rely on SP4’s evidence alone, since the accused’s own testimony independently establishes that he rode the motorcycle at some point before his arrest. On either basis, the accused would necessarily have sat upon the very seat beneath which three packets of cannabis, weighing a combined 1,918.26 grams and marked P5A, P5B and P5C, had already been concealed within the structural foam, a state of the seat later documented in the photographs of the excavated seat, P11(1) to P11(8). This court finds it implausible that a person who had so recently ridden the motorcycle and sat upon that seat would remain wholly unaware of so substantial an alteration to it. A quantity of nearly two kilograms of compressed plant material packed into the foam padding of a motorcycle seat is not a trivial or imperceptible addition to the ordinary feel of that seat. Whatever might be said, and has been said, about the impossibility of seeing the drugs without cutting the sponge open, a rider seated upon the altered structure would ordinarily be expected to notice a corresponding change in its firmness or shape beneath him. The accused was given every opportunity, both in his witness statement and under cross-examination, to address this difficulty, whether by asserting that the seat felt no different to him or otherwise, and did not do so; his case, consistently, has been a denial of knowledge simpliciter, unaccompanied by any account meeting this specific point. This further undermines the plausibility of his account and reinforces this court’s conclusion that his explanation amounts to no more than a bare denial, a category of defence long held insufficient to raise a reasonable doubt: D.A. Duncan v PP [1980] 2 MLJ 195 (FC). G4. The Public Accessibility of the Parking Bay [43] It was elicited from SP2 in cross-examination that the basement parking area of Skudai Parade Mall was a paid public car park, accessible to any member of the public who paid the requisite parking fee, albeit one described by SP2 as having some form of security. The defence submits that this openness undermines any inference of exclusive control. This court must reject this contention as the evidence does not support it. The key recovered from the accused, P9, was not used only to start the engine of the motorcycle; it also secured access to the compartment where the drugs were found. As established by the evidence of SP4, the motorcycle seat had to be lifted using the key (“diangkat menggunakan kunci”) before the sponge could be accessed. Although the sponge itself had to be physically cut open with a knife and scissors, tools which SP2 did not even have with him at the scene, the initial access required the key. It follows that the accused’s possession of the key did, of itself, exclude any other person from gaining access to the contents of the seat. A person with an ordinary knife, and with unsupervised proximity to the motorcycle for even a short period, could not in principle have done what SP2 himself later did at the police station without first using the key to lift the seat. This court accordingly accepts that exclusive possession of the key equated to exclusive means of access to the place where the drugs were concealed. To that extent, the public accessibility of the car park is indeed answered simply by pointing to the key, and this court has assessed the point on that footing. [44] Furthermore, this court has concluded, after careful reflection, that the openness of the car park does not raise a reasonable doubt or assist the accused in rebutting the presumption of trafficking. The defence identifies no third party, no incident, and no evidence of any kind, whether by way of tampering, forced entry, or otherwise, capable of grounding a real possibility that some other person used the opportunity afforded by the car park to conceal the drugs. What the defence offers is the bare theoretical possibility that an unidentified stranger, undetected over some portion of a six-week period, obtained a knife and the motorcycle key, gained sufficiently unsupervised access to a stolen motorcycle to unlock and lift the seat, cut open and later leave undisturbed the appearance of its seat, concealed within it a substantial quantity of cannabis, and did so without the accused, who rode the motorcycle and had it in his continuous keeping throughout that period, ever noticing any sign of interference. A speculative possibility of that kind, unsupported by any positive evidence, is not the sort of doubt the law recognises as reasonable: PP v Ku Lip See. What remains significant is that not only could the accused alone physically have opened the seat using the key, but that he alone is shown by the evidence to have had the sustained, unsupervised and continuous use of the motorcycle over the whole of the six-week period, a period which gave him, on any view, at least as great an opportunity as any hypothetical third party to have discovered, or to have effected, the concealment himself. This court has weighed the evidence with care, and is satisfied that, while the public character of the car park is a matter properly to be taken into account, it does not, without more, displace the inference otherwise arising from the accused’s sustained exclusive use of the vehicle, his possession of the sole key, and his own conduct addressed in Section G6 below. [45] This court has considered the defence submission against the broader requirement, discussed by the Court of Appeal in Ng Mee Yee & Anor v PP, that exclusivity of possession is a matter the prosecution must properly establish before knowledge can be inferred from custody and control. The Court of Appeal there emphasised that exclusivity is not a matter of abstract or theoretical access to a general area, but of practical and effective control over the relevant place. Correctly understood on the evidence in this case, that exclusivity attaches to the seat compartment as a locked receptacle, which it was, as well as to the motorcycle as a whole, which the accused alone rode, parked, and retained the key to throughout the six-week period. It is that sustained and exclusive use of the vehicle itself, together with his mechanical control over its seat, which this court finds to be established on the evidence and which forms part of the basis for the inference addressed further in Section G13 below. G5. The Circumstances of the Accused’s Arrest and His State at the Time [46] SP2 conceded, in cross-examination, that the accused appeared to be “dalam keadaan high, khayal” both when first stopped and subsequently when he led the party to the motorcycle. This is corroborated by the positive result for methamphetamine recorded in the urinalysis conducted later that same day (Skudai Report 1762/19). This court accepts this evidence as it stands. This court is not, however, persuaded by any suggestion that the accused’s tolerance for the substance, whether as a habitual user or otherwise, would have caused it to be metabolised more quickly or would otherwise have diminished its effect on him at the material time. No expert or scientific evidence was led on this question, and this court declines to draw any inference on a matter properly requiring expert evidence in its absence. [47] The defence advanced a related but distinct submission, namely that the accused’s intoxication at the material time was so severe that the pandu arah could not properly be attributed to him as his own voluntary act, and that it was, in substance, the police rather than the accused who directed the course of events at the basement car park. This court rejects that submission. When it was put to the accused, in cross-examination, that he had led police to the motorcycle he had stolen while conscious, and that this was how the police came to find where the motorcycle was, he at first disagreed (“Tak setuju”). When it was then put to him that, were he genuinely unaware and khayal, he would not have known what he was doing or saying, he answered, “Kerana bukan dalam keadaan yang terlalu high” (because he was not in a state that was too high). When asked directly whether he was in fact conscious at that time, he answered, “Mungkin” (perhaps). These answers, coming from the accused himself, are inconsistent with a state of intoxication so complete as to negate voluntary conduct. A person wholly incapacitated in the sense the defence submission requires would not be in a position to qualify his own state as not too high, nor to accept even the possibility that he was conscious at the time. This court accordingly finds that the pandu arah was the accused’s own voluntary act, and not conduct directed or substituted by the police, and it is on that footing that the conduct evidence addressed in Section G6 below is properly attributable to him. [48] This finding is to be distinguished from a narrower and separate point, on which this court has, for different reasons, declined to draw any conclusion adverse to the accused: the particular wording of his witness statement as to precisely when, in the course of that morning, he began to become aware. The documentary record on this narrower point is not, in truth, ambiguous once the matter is properly understood. What was put to the accused in cross-examination as the wording of his own witness statement, that he had “sudah mula sedar” during the journey to Skudai Parade, was in fact drawn from an earlier draft, prepared before final instructions had been taken from him, which was never filed and was formally withdrawn once the discrepancy was identified on the record; the statement he confirmed, and which was marked PSSD1, contains no such sentence. The accused’s own oral answers on this narrower question were themselves inconsistent, ranging from “Belum” to “Tak pastilah”, before he ultimately agreed that he must have been aware by the time he was examined at the police station. This court has considered whether the disappearance of that sentence between the earlier, unfiled draft and the statement ultimately confirmed as PSSD1, occurring as it did only after further instructions were taken from the accused, is itself a matter properly to be weighed against his credibility, on the footing that a written admission unfavourable to him was excised once counsel had taken fresh instructions. This court does not accept that submission. Nothing on the record discloses when, by whom, or in what circumstances the earlier draft came to be revised beyond what is set out above, and that revision is at least as consistent with the ordinary and unremarkable amendment of a draft witness statement following further conference with a client as it is with any deliberate suppression of an unfavourable admission; to treat the bare fact of a pre-filing revision as evidence of tailoring would require this court to draw a speculative adverse inference on a matter of professional practice on which no evidence was led, which this court declines to do. Given that the wording put to the accused did not, in the end, form part of his confirmed evidence, and given the equivocal nature of the accused’s own oral answers on this specific point, this court does not consider it safe to draw any adverse conclusion as to the accused’s general credibility from this aspect of the evidence, and declines to do so. This caution is confined to that narrow point, and does not disturb the finding in paragraph [47] above, which rests on the accused’s own oral evidence under cross-examination and not on any disputed version of a document. What this court places weight upon, for the reasons given in Section G6 below, is the objective and independently corroborated conduct of the accused, namely his possession of the key and his voluntary act of leading the police directly and specifically to the motorcycle. G6. The Rejection of the Section 27 Statement and the Continuing Operation of Section 8 [49] It is necessary to address the relationship between two distinct bodies of evidence that featured in this case: the purported oral statement said to have been made by the accused to SP2 acknowledging the presence of drugs, and the accused’s conduct in leading the police to the motorcycle. The former was tendered by the prosecution as information falling within section 27 of the Evidence Act 1950. Section 27 renders admissible so much of any information given by a person in police custody as distinctly relates to a fact thereby discovered, but its application is subject to strict preconditions identified in PP v Kanapathy Kupusamy [2001] 1 CLJ 61 (HC), namely that the accused be in police custody, that the information come from the accused, that it be given before the discovery, that a fact actually be discovered in consequence of it, and that the information relate distinctly to the fact discovered, together with the further requirement that the exact words used by the accused be proved: see Ishtiaq Ahmad Khan v PP [2020] 6 CLJ 187, where the Court of Appeal held that a court is deprived of the ability to determine whether information falls within section 27 where the recording officer has reworded the accused’s answers rather than recording his exact words. Furthermore, to the extent the statement was sought to be admitted as a confession, there is a requirement that a proper caution be administered: see Adenan Haron v PP [2014] MLRAU 307 (CA). On the evidence before the learned predecessor judge, SP2 was unable to produce any contemporaneous note of the precise question he put to the accused or of the precise words of the accused’s response, and no caution was shown to have been administered before the exchange took place. It was on these footings that the learned predecessor judge rejected this statement at the prima facie stage, and, consistent with Duis Akim, this court has not revisited that ruling. [50] The rejection of the section 27 statement does not, however, extinguish the separate and independent body of conduct evidence admissible under section 8 of the Evidence Act 1950, which renders relevant the conduct of a party to a proceeding where that conduct influences, or is influenced by, a fact in issue, whether that conduct is antecedent, contemporaneous or subsequent to the facts in issue. This court has been careful, in identifying what that conduct evidence actually establishes, not to smuggle back in, under the guise of section 8, the substance of what was excluded under section 27. What the accused physically did, independently of anything he is recorded as having said, was to lead SP2 and the accompanying officers, from the point of his arrest at Jalan Jaya, to the basement parking area of Skudai Parade, and there to identify a specific Yamaha 135LC motorcycle, out of whatever other vehicles were parked in that area, as the object of interest. That act of identification is conduct falling within section 8, requiring, as the authorities make clear, a direct and immediate relationship between the conduct and the fact in issue such that the conduct is not brought about by some other agency, a requirement this court has already found to be satisfied in paragraph [47] above, where this court rejected the submission that the pandu arah was, in substance, conduct directed by the police rather than the accused’s own voluntary act. This court accepts that the further detail, that the drugs were specifically to be found under the seat rather than elsewhere on or within the motorcycle, emerged from the verbal exchange between the accused and SP2 rather than from conduct independent of it, and this court has accordingly given no weight to that further detail, consistent with the exclusion of the underlying statement. What remains, and what this court does rely upon, is the accused’s conduct in singling out that particular motorcycle, a fact which, combined with his admitted and exclusive use of it over the preceding six weeks, forms the proper evidential foundation addressed further in Section G13 below. G7. The Absence of Fingerprint Evidence and the Missing CCTV Footage [51] SP4 conceded in cross-examination that no fingerprint examination was conducted on the drug packets, the seat compartment or the sponge, and that no CCTV footage was available showing the accused placing the motorcycle at the location where it was found. This court has considered whether these omissions are of such a nature as to raise a reasonable doubt. The absence of forensic or video evidence of this kind is, at most, neutral: it neither confirms nor excludes the accused’s knowledge, and it does not of itself create a gap in the prosecution’s case of the kind that would attract an adverse inference under section 114(g) of the Evidence Act 1950. As the High Court (Alor Setar), per Mohamad Abazafree Mohd Abbas J, explained in PP v Muhamad Syafiq bin Rosli [2025] MLJU 2381, an adverse inference under section 114(g) may be drawn against the prosecution only where a relevant witness or item of evidence was not offered, where the prosecution withheld available evidence, and where the prosecution acted with an improper motive to prejudice the defence. None of those conditions is met here, since there is no suggestion, still less any evidence, that fingerprint or CCTV material once existed and was suppressed or withheld by the prosecution. On the contrary, SP4’s own evidence was that the CCTV footage, so far as it may once have existed, was no longer available, a fact volunteered under examination-in-chief rather than concealed, and no evidence was led to suggest that a fingerprint examination would have yielded any result, still less a result favourable to the accused. The prosecution is not required to exclude every conceivable alternative explanation by forensic means where direct evidence of possession, in the form of the key and the accused’s own conduct, is otherwise available and established. G8. The Non-Calling of the Registered Owner, Lee Kok Keong [52] The defence points out, and this court itself raised the matter during clarification proceedings, that the registered owner of the motorcycle, Lee Kok Keong, was not called by the prosecution. This court has considered whether an adverse inference ought to be drawn against the prosecution on this account. This court is satisfied that no such inference is warranted. The present charge concerns who had custody, control and knowledge of the drugs concealed in the motorcycle during the period material to the offence, namely the period following the theft and preceding the arrest. The registered owner’s evidence could, at its highest, speak only to the condition of the motorcycle before it was stolen, a matter not seriously in dispute and, in any event, one on which the accused himself did not suggest that the drugs were present at that earlier time. The owner was neither present at the scene of arrest nor a witness to any fact in issue in the present trial, and his evidence was, for the purposes of this charge, of marginal materiality at best. This court notes, further, that the theft of the motorcycle was itself the subject of a separate charge to which the accused pleaded guilty, such that the fact of the theft, and by extension the loss of the owner’s possession and control, was never seriously in issue in these proceedings. It is, in any event, well established that the prosecution is not obliged to call every possible witness, but only so many as are necessary to establish its case beyond reasonable doubt, and that the calling of witnesses beyond that minimum requirement remains a matter of prosecutorial discretion, provided there is no unsatisfactory feature or gap left in the prosecution’s case: PP v Muhamad Syafiq bin Rosli. Here, the gap said to arise from the owner’s absence is, for the reasons given, no gap at all, since the owner’s evidence would have addressed a period, and a set of facts, that lie outside the matters in issue on this charge. G9. The Contention That P8 Is Not the Same Motorcycle, and the Missing Raga and Sponge [53] The most substantial plank of the defence case was the accused’s contention, advanced both in his witness statement and at trial, that the motorcycle produced before this court, P8, was not the same motorcycle from which the drugs had been recovered, this being said to be evidenced by the absence, at the point of its production in court, of the front basket (raga) and the seat sponge which the accused says he observed at the scene. This court has given this contention the most careful consideration, for a defect touching the identity of a case exhibit is, as the authorities make clear, a serious matter capable of being fatal to a conviction. In Yeong Kia Heng v PP [1992] 1 MLRA 388, the then Supreme Court quashed a conviction where a serious discrepancy arose between the evidence of the police and that of the chemist as to the weight of the drug exhibit, giving rise to a genuine doubt as to the identity of the exhibit itself; it was there held that the burden on the prosecution is heavy, that an accused is entitled to take advantage of any defect in the prosecution’s case, and that a defect as to the identity of the exhibit is a serious one. In Yusri Pialmi v PP [2010] 6 CLJ 878, the Federal Court likewise set aside a conviction where an unexplained discrepancy in the recorded weight of the cannabis exhibit, arising between the evidence of the investigating officer and the chemist, was left unresolved, such that it could not be said the prosecution had proved beyond reasonable doubt that the substance analysed was that which had been seized. [54] This court is satisfied, having considered the whole of the evidence, that the present case is materially distinguishable from both authorities. What is said to be missing here is not any part of the drug exhibit itself, but accessories of the locus exhibit, namely the motorcycle in which the drugs were concealed. The three drug packets, P5A, P5B and P5C, passed through an unbroken chain, traced in Section B above from seizure by SP2 and handover to SP4, through analysis by SP3, to safekeeping by SP1 pending trial, and their identity as the substance recovered from the motorcycle was never seriously disputed; no discrepancy of the kind that proved fatal in Yeong Kia Heng or Yusri Pialmi, whether as to weight, marking, or laboratory reference, was demonstrated in respect of P5A to P5C. The identity of the motorcycle itself, P8, is in turn established, quite apart from the presence or absence of its raga or sponge, by its registration plate, JST 8476, a matter the accused himself accepted under cross-examination remained the same as at the time of seizure, and by the chassis and engine numbers confirmed through the theft investigation to correspond to the motorcycle reported stolen by Lee Kok Keong. The accused’s own evidence that some police witnesses expressed doubt (“ada yang ragu-ragu”) falls well short of establishing that the motorcycle produced in court was, in fact, a different one; it does not detract from the consistent identification given by the witnesses called, and the accused conceded that he had at no time, whether by police report or otherwise, formally raised or documented any dispute as to the identity of the motorcycle prior to trial. The manner and location of the drugs’ concealment was, moreover, independently established by the photographs P11(1) to P11(8), taken shortly after recovery, and by the direct testimony of SP2 as to how the drugs were found, neither of which depends in any way on the subsequent state of the exhibit at a later production before this court, several years after the events in question, during which period the motorcycle had, on the evidence available to this court, been kept in the open at a police compound and was liable to loss of parts and deterioration through prolonged exposure. In these circumstances, this court finds that the missing raga and sponge, whatever the precise reason for their absence, do not affect the identity of the drugs, the identity of the motorcycle, or the reliability of the evidence as to the manner and location of concealment, and that Yeong Kia Heng and Yusri Pialmi, concerned as they were with defects going to the identity of the drug exhibit itself, are accordingly of no assistance to the defence on the facts of this case. [55] This court has not lost sight of the observation in Yeong Kia Heng that the burden on the prosecution in this regard is a heavy one, and that an accused is entitled to every legitimate advantage that may be taken of a defect in the prosecution’s case. This court has applied that principle in full to the matter now under consideration, and it is precisely because that heavy burden has been kept in mind that this court has scrutinised, rather than assumed away, the significance of the missing raga and sponge. Having done so, this court is satisfied that the burden has been discharged, because the defect identified here is, on analysis, a defect in the completeness of a physical exhibit at a late stage of a protracted trial, not a defect in the chain of proof connecting the drugs seized to the drugs analysed, nor a defect in the proof connecting the motorcycle recovered to the motorcycle later produced. The distinction drawn by the appellate courts in Yeong Kia Heng and Yusri Pialmi was never a distinction between exhibits that are pristine and exhibits that are not; it was a distinction between defects that leave a court unable to say, without speculation, that the substance in the dock is the substance that was seized, and defects that do not. The present case falls, on the evidence, into the latter category. G10. The Methamphetamine Found in Connection with the Accused and the “Drug-Class” Point [56] The defence draws attention to the fact that the accused tested positive for methamphetamine, a different class of drug from the cannabis the subject of the present charge, and, in his witness statement, sought to characterise this as demonstrating that the cannabis found in the motorcycle was foreign to him, someone who was, on his account, “seorang pengguna dan tidak pada bila-bila mengedar dadah”. This court does not accept that the point assists the defence. There is no principle of law or logic that a person who uses one drug cannot traffic in another; personal consumption and commercial trafficking answer to entirely different motivations, and it is commonplace, as a matter of ordinary experience, for persons involved in the drug trade to have no personal association with the particular substance they traffic, trafficking being, at its heart, a commercial rather than a consumptive activity. The prosecution’s case does not depend upon any inference from the accused’s personal drug use; it rests on the key, the conduct, and the period of exclusive custody, none of which is in any way weakened by proof that the accused separately used a different substance for his own consumption. This court has also considered, and rejected, any suggestion that the accused’s own methamphetamine use ought to attract leniency of a kind that translates into doubt on the cannabis charge; the two matters, one a personal habit and the other a completed act of trafficking established on the evidence, remain analytically distinct. The disjunction in drug type is, in this court’s assessment, a neutral fact incapable of advancing the defence, whatever sympathy might otherwise attach to an admitted user of drugs. G11. The Evidence of SD2 [57] SD2’s evidence, that the motorcycle had been reported stolen and that its chassis and engine numbers matched the motorcycle recovered, is not disputed by the prosecution and is accepted by this court. SD2 was not, however, present at the scene of the arrest, played no part in the investigation of the drug offence, and could not speak to when, by whom, or in what circumstances the cannabis came to be concealed within the seat, nor could he assist as to the condition of the exhibit at its later production before this court. His evidence, while credible as far as it goes, establishes only the fact of the theft, a fact the prosecution does not contest. It does not touch, still less resolve, the central and only live question in this trial, namely the accused’s knowledge of the drugs. G12. The Absence of Any Contemporaneous Denial [58] This court considers it necessary to address one further matter arising squarely from the accused’s own evidence under cross-examination, quite apart from the disputed wording addressed in Section G5 above. It was put to the accused that at no point during his arrest or the subsequent investigation did he inform the police that he had no knowledge of the drugs. While the accused disagreed and insisted that he had verbally denied knowledge to the police, he ultimately accepted that no document of any kind, whether a police report, a recorded statement, or otherwise, exists in which he raised such a denial prior to trial. This court considers this a matter of real significance, distinct from and unaffected by the confusion as to the “sedar” wording addressed above, since it does not depend on any disputed version of a document but on the accused’s own unequivocal concession that no such documentary record exists. Where an accused offers an exculpatory account for the first time at trial, having had every earlier opportunity to raise it on record and having failed to do so, the court is entitled to treat that account with caution, as a matter that may properly be assessed as a late assertion rather than as an account maintained consistently from the outset: PP v Ling Tee Huah [1980] 1 LNS 212 (HC); Khairiddin Sufi v PP [2012] 6 CLJ 457 (CA). The Court of Appeal in Khairiddin Sufi explained the rationale for this approach in these terms: an exculpatory statement which could have been made earlier but was not, when disclosed belatedly without explanation, may properly be dismissed as an afterthought, that being a natural and ordinary inference and not a penalty imposed upon an accused for having exercised his right to remain silent at an earlier stage. The right to silence is not infringed by a court declining to give weight to an account first raised only when its truth or accuracy can no longer be tested against contemporaneous events. This is not a matter of impugning the accused’s general character or demeanour. It is the ordinary and fair observation that a person genuinely ignorant of drugs found in his possession would, in the ordinary course, be expected to say so at the first available opportunity, whether to the arresting officer, the investigating officer, or by way of a police report of his own, and the complete absence of any such recorded statement here, a fact the accused himself was constrained to accept, is a feature properly weighed against the reliability of the account now advanced. G13. The Evidential Foundation: A Candid Assessment [59] Before turning to the final synthesis, this court considers it right to confront directly a difficulty in the prosecution’s case that a rigorous evaluation cannot responsibly pass over. Once the section 27 statement is excluded, once the missing CCTV footage and the absence of fingerprint evidence are treated as neutral rather than embellished in the prosecution's favour, once the disputed “sedar” wording is, as this court has determined it should be, left out of account altogether, and once, as explained in Section G4 above, the key is correctly understood as establishing both the accused’s exclusive use of the motorcycle and his exclusive means of access to the seat in which the drugs were found, the prosecution’s proof of knowledge rests upon two related but distinct evidential foundations, rather than the single foundation this court might otherwise have been tempted to describe. The first is the accused’s undisputed and exclusive use of the motorcycle over a period of approximately six weeks, his possession of the sole key to unlock the seat compartment, combined with his own conduct in singling out that particular motorcycle to the police, as explained in Section G6 above. The second, addressed in Section G3 above, is the more immediate difficulty that the accused, on his own evidence, rode the motorcycle and necessarily sat upon its altered seat shortly before his arrest, a fact this court has found renders his professed total ignorance of the concealment implausible. It would overstate the position to describe the prosecution’s case as resting on a multiplicity of independent strands each separately proving knowledge beyond these two; the further matters canvassed above, the elaborateness of the concealment, the missing raga and sponge, the drug-class disjunction, are properly characterised not as additional affirmative proof of knowledge in their own right but as matters raised by the defence that this court has found do not dislodge the inference otherwise arising from these two foundations. This court has asked itself, in the most candid terms it can, whether that combined foundation, correctly and now more precisely stated, is capable of satisfying the standard required at this stage of the trial. [60] This court answers that question in the affirmative, but not without recognising why the question is a real one. Six weeks of continuous, exclusive and undisputed use of a vehicle, held together with sole possession of its only key, is not a trivial or fleeting connection of the kind that might plausibly be explained away by innocent happenstance. It is a substantial period during which the accused had every opportunity, whether to become aware of what the vehicle contained or himself to have placed it there, and his own conduct, in leading police unerringly and without hesitation to that particular motorcycle among whatever others may have been parked nearby, is conduct of a kind ordinarily to be expected of a person who attaches particular significance to that vehicle, not of a person who regards it as nothing more than an item of stolen property indistinguishable from any other. To that first foundation is added the second, no less significant for being of a different character: the accused rode that same motorcycle, and necessarily sat upon its already-altered seat, in the period shortly before his arrest, a fact that this court has found renders his account of total ignorance difficult to accept, addressed fully in Section G3 above. This court is not required, at this stage, to exclude every fanciful possibility that might in theory account for these facts; the standard is proof beyond reasonable doubt on the whole of the evidence, and a doubt that is merely speculative or unsupported by any positive evidence is not a reasonable one, however candidly the strength of the underlying inference is acknowledged: PP v Ku Lip See. Having weighed the matter with the care it deserves, this court is satisfied that the two foundations described above, evaluated together with the complete absence of any countervailing positive account from the accused, are sufficient to meet the standard the law requires, without this court needing to, or being entitled to, supplement those foundations with inferences drawn from the accused’s intoxication, his disputed wording, or any other matter this court has elsewhere declined to weigh against him. G14. The Credibility of the Defence Taken as a Whole [61] Standing back, this court is required to consider not each point in isolation but the cumulative weight of the defence case as a whole, in light of the whole of the evidence. The accused’s defence, at its core, is a denial of knowledge unaccompanied by any positive account of how the drugs came to be concealed within the sponge of a motorcycle of which he had had sole and exclusive use for six weeks. He does not suggest, still less identify, any other person who might have had unsupervised access to the motorcycle during that period. He calls no witness to that effect; SD2, his only witness, speaks only to the theft. A bare denial of knowledge, unsupported by any positive evidence capable of reasonably and probably explaining the presence of the drugs, does not, on the authorities, suffice to rebut a statutory presumption on a balance of probabilities: PP v Ling Tee Huah; D.A. Duncan v PP. Nor, for the same reason, does it raise a reasonable doubt as to the prosecution’s case, since a reasonable doubt must arise from the evidence, and not from mere possibility or conjecture: PP v Saimin & Ors. [62] This court has, in the course of this evaluation, deliberately declined to place weight on matters this court considers do not fairly bear on the accused’s credibility, in particular the wording mistakenly put to him in cross-examination as that of his own witness statement, and the equivocal nature of his oral answers, as to his precise state of awareness, addressed in Section G5 above. This court has been similarly cautious in declining to treat the accused’s admitted intoxication as, of itself, undermining the reliability of his conduct in leading police to the motorcycle, in the absence of any expert evidence on the point. What remains, once those matters are set aside, is a body of objective and largely undisputed fact: exclusive use of the motorcycle and sole possession of its key for approximately six weeks; direct and specific conduct, found to be the accused’s own voluntary act and not conduct directed by the police, in identifying and leading the police to that particular motorcycle; the accused’s own admission that he rode the motorcycle, and so necessarily sat upon its already-altered seat, shortly before his arrest, rendering his professed total ignorance of the concealment implausible; an elaborate manner of concealment consistent with deliberate action by a person with sustained and unsupervised access to the vehicle; a contention that the exhibit produced in court was a different motorcycle, advanced without any contemporaneous complaint and undermined by the accused’s own concessions as to the matching registration plate; and the complete absence, from the time of arrest to the commencement of the defence case, of any denial of knowledge of the drugs recorded in any document whatsoever. Considered individually, no single one of these matters may be decisive; considered together, they satisfy this court that the defence has failed to rebut the presumption of trafficking under section 37(da) of the DDA on a balance of probabilities, and has failed, further, to raise any reasonable doubt as to the prosecution’s case as a whole. H. FINDING AND DECISION [63] Having considered the whole of the evidence adduced in this trial, and having applied the principles set out above, this court finds that the defence has failed to rebut the presumption of trafficking under section 37(da) of the DDA on a balance of probabilities, and has failed to raise any reasonable doubt as to the prosecution’s case. This court has kept steadily in mind, throughout the analysis in Section G, that the burden of proof never shifts from the prosecution save to the limited extent that the statutory presumption requires, and that it remains for the prosecution, and not for the accused, to satisfy this court of guilt beyond reasonable doubt on the totality of the evidence: PP v Saimin & Ors. This court has also been careful, in reaching this conclusion, not to treat the accused’s failure to establish his defence as itself a substitute for affirmative proof of guilt; it is the prosecution’s own case, comprising the ingredients found proved at the prima facie stage and confirmed on the whole of the evidence now before this court, that has satisfied this court of guilt, the defence evidence having failed either to rebut the presumption of trafficking or to disturb that finding by raising a reasonable doubt. [64] The prosecution has proved its case beyond a reasonable doubt. The accused, Mohamad Hairilnazmi bin Mohd Dafiah, is found guilty and convicted of the charge under section 39B(1)(a) of the DDA, as amended, P2. I. SENTENCE [65] With the coming into force of the Abolition of Mandatory Death Penalty Act 2023 (Act 846) on 4.7.2023, section 39B(2) of the DDA no longer prescribes death as the mandatory sentence upon conviction. This court retains a discretion to impose either death by hanging or life imprisonment together with not less than 12 strokes of whipping, that discretion to be exercised judiciously having regard to the mitigating and aggravating factors present in the particular case, and, given that the purpose of Act 846 is the preservation of life, that discretion is properly exercised in favour of life imprisonment unless the aggravating factors in the particular case are so serious as to outweigh the mitigating factors. This approach is reflected in the sentencing practice of the courts following Act 846, including in Abu Bakarr Bah v PP [2025] MLRAU 182 (CA), PP v Umapathi a/l Ganesan [2024] 7 MLJ 345 (HC) and PP v Mohd Nazri Md Yusuf [2023] MLRHU 1701 (HC), in each of which the sentencing court weighed matters personal to the accused, including whether he was a first offender, alongside the objective seriousness of the offence, including the nature and quantity of the drug involved, before determining whether the case fell within the category properly attracting the ultimate penalty. [66] Upon conviction, this court heard the parties on the appropriate sentence. Learned counsel for the accused urged this court to exercise its discretion to impose a sentence other than death, relying in mitigation on the fact that the accused is a first offender with no antecedent record, that he is single but supports his family, and that he is remorseful, and submitting that the spirit and intent of Act 846, being the preservation of life save in the most exceptional cases, favoured the alternative sentence of life imprisonment and whipping. Learned Deputy Public Prosecutor, for the prosecution, drew attention in aggravation to the substantial quantity of cannabis involved, being some nine and a half times the statutory threshold prescribed under section 37(da) of the DDA, and to the general public interest in the deterrence of drug trafficking offences given their rampancy, while, as this court noted in its remarks below, not advancing any further aggravating factor of a more exceptional character, such as the manufacture of drugs, the leadership of a trafficking syndicate, or trafficking in hard drugs on a large scale, of the kind that would ordinarily place a case within the category properly attracting the ultimate penalty. [67] This court, having considered the submissions of both parties, observed that the most severe categories of offence under section 39B, such as the manufacture of drugs, the leadership of a trafficking syndicate, or the trafficking of hard drugs in very large quantities, ordinarily warrant the ultimate penalty, whereas imprisonment is the customary sentence for other offences under that section. This court noted that the drug involved in the present case, cannabis, has consistently been regarded by the courts as a lighter drug, and that although the quantity trafficked exceeded the statutory threshold under section 37(da) of the DDA by some nine and a half times, this did not place the present case within the most serious category of trafficking offences such as would warrant the ultimate penalty. This court held that the burden lay on the prosecution to satisfy this court that the death penalty was warranted, and that the prosecution had not shown the aggravating factors to be so exceptionally serious as to outweigh the mitigating factors present. This court further took into account that this was a first offence for the accused. [68] This court accordingly concluded that, having weighed all the relevant mitigating and aggravating factors and having given effect to the spirit and intent of Act 846, it would exercise its discretion to sentence the accused to life imprisonment and 12 strokes of whipping, with the sentence of imprisonment to take effect from the date of arrest. [69] The accused, Mohamad Hairilnazmi bin Mohd Dafiah, is accordingly sentenced to life imprisonment and 12 strokes of whipping, the sentence of imprisonment to take effect from the date of his arrest, 25.2.2019. 30 July 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge High Court of Malaya Johor Bahru COUNSEL: For the Prosecution: TPR Tuan Muhammad Syafiq bin Mohd Ghazali, TPR Puan Lydia binti Salleh, TPR Umar Faiz bin Abdul Kohar, TPR Puan Zuhainie binti Zull Kafli, Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Ja’afar Muhammad, Kota Iskandar, 79100 Nusajaya, Johor. For the Accused: Mr Bernard George a/l George Mathews Tay, Bernard & Cheong Block A, Unit 11-07, Jalan KSB 11A, Pangsapuri Atlantis Kota Syah, Taman Kota Laksamana, 75200 Melaka, Melaka