Mohamad Rashid Bin Sahuti (BA-45A-159-12/2022)

The accused, Mohd Rashid Bin Sahuti, was charged with an offence under section 39B of the Dangerous Drugs Act 1952 (DDA), and the charge in its original text states as follows: Pertuduhan Bahawa kamu pada 14/6/2022 jam lebih kurang 11.00 malam bertempat di stor barangan jentera, Batu 41, Kampung Olak 19/01/2026 10:46:37 Kand. 118 Lempit, Banting dalam daerah Kuala Langat, di dalam Negeri Selangor Darul Ehsan, telah didapati memiliki dadah berbahaya Cannabis berat bersih 243.65 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 [Akta 234] yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Hukuman: Mati atau penjara seumur hidup hendaklah, jika dia tidak dihukum dengan hukuman mati, dihukum dengan sebatan yang tidak kurang daripada dua belas tahun.

The accused denied the charge. On 4.7.2025, at the end of the prosecution's case, the Court ruled that the prosecution had proved all the ingredients of the offence upon maximum evaluation of the prosecution witnesses' testimonies and the documents tendered. The Court ordered that the accused enter his defence.

On 15.12.2025, at the end of the trial, the Court decided that the defence had failed to raise any reasonable doubt and that the accused's defence was a bare denial and an afterthought. The defence too had failed to rebut the statutory presumption on the balance of probabilities. The Court convicted the accused as charged and sentenced him to life imprisonment (30 years imprisonment) from the date of arrest and 12 strokes of rotan.

Aggrieved by the decision, the accused filed a notice of appeal on 31.12.2025 against the conviction and sentence.

The grounds of judgment are as follows.

The event happened on 14.6.2022, at approximately 11:00 pm, the complainant (PW2) and his team of officers went to a premise which stored machineries and equipment at Batu 41, Kg Olak Lempit, Banting, Selangor (the place of the incident) to search for an individual named Abdul Rashid Sahuti on a police report made against Abdul Rashid Sahuti under section 506 of the Penal Code.

PW2, as instructed by the Investigating Officer ofin the case, went to the premises and found a Malay man sitting on a chair. PW2 introduced himself as a police officer and requested that the accused show his identification, but the accused refused.

PW2 then apprehended the accused and conducted a physical body search on the accused. However, the accused was aggressive, and a commotion ensued during the process.

PW2 conducted a physical search on the accused. But did not find anything. The accused was also carrying a brown sling bag labelled "Jeep" and, upon further search of the bag, the police found a few slabs of compressed dried leaves suspected to be cannabis and the accused's personal item, which was his identity card.

The police conducted a further search of the premises and found, on a table, a wooden cutting board, a stainless steel knife, a digital weighing scale, and a modified drinking bottle used for drugs.

PW2 arrested the accused and brought him to Ibu Pejabat Daerah (IPD) Kuala Langat, along with the seized items, for further action. DUTY OF THE COURT AT THE END OF THE PROSECUTION

Section 180(1) of the Criminal Procedure Court provides that the Court's duty at the end of the prosecution case is to decide whether the prosecution succeeded in proving a prima facie case.

The cases of PP v Dato' Seri Anwar Ibrahim (No.3) [1999] 2 CLJ 215; [1999] 2 AMR 2017; [1999] 2 MLJ 1, Balachandran v PP [2005] 1 CLJ 85 and PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457; [2005] 6 AMR 203 respectively laid down clear principles of law that at the end of the prosecution case, the evidence must be subject to a maximum evaluation for the Court to determine whether the prosecution succeeded to establish a prima facie case.

The prosecution called a total of six witnesses during the trial as follows: PW1 Dr Saravana Kumar a/l Jayaram (the chemist) PW2 Insp Razi bin Jaafar (pegawai serbuan/raiding officer) PW3 En. Faizal bin Ab Latib (pemilik bengkel/owner of the workshop) PW4 Sjn Shafriza bt Zakaria (penghantar barang kes/officer in charged of delivery of the exhibits to the Jabatan Kimia Malaysia) PW5 Insp Fatin Nadira (pegawai penyiasat warisan)/ the substitute investigating officer PW6 Insp Najwan Shah (pegawai penyiasat warisan/the substitute investigating officer)

The prosecution submitted that, based on the narratives of the case, it had successfully established the element of custody and control. In this respect, PW2 gave evidence that during the search on the accused's body, PW2 found that the accused was carrying a brown color sling bag (exhibit marked as P16(A)) containing the slabs of the compressed dried leaves suspected to be cannabis (exhibits P6(A)-(G), together with the accused's identity card (exhibit P16(B)). During the arrest, only the accused was in the premises.

The prosecution also submitted that the failure to call the investigating officer of the case was not fatal to its case, given the overwhelming evidence by PW2 that the accused had custody, control and knowledge of the impugned drugs.

The failure to call the investigating officer was due to the officer's poor health. The prosecution also tendered in Court the medical reports, marked as exhibits P17, P17(A), and P17(B), and the medical certificates, marked as exhibits P20 and P21, to prove that the investigating officer was unfit to attend the court hearing on several occasions.

Therefore, the prosecution submitted that there was no basis for this Court to agree with the defence counsel's contention on the application of adverse inference against the prosecution for failure to call the investigating officer of the case as a prosecution witness.

Regarding the defence counsel's issue with the CCTV, the prosecution submitted that the owner (PW3) gave evidence that the CCTV was not functioning and had no decoder. In other words, the CCTV was a dummy one.

On the issue regarding an individual named Manja bin Ab Latib, as raised by the defence counsel, the prosecution submitted that, from the evidence of PW2, there was no one else at the place of the incident when PW2 and his team were on the premises.

On the issue of the photographs of the place of the incident, which remained as "ID10" until the end of the prosecution's case, the prosecution submitted that PW2's testimony clearly established the place of the incident, a position the defence hardly disputes.

PW2's testimony was clearly direct evidence under section 60(1) of the Evidence Act 1950. The evidence regarding the place of the incident was also supported by the police report, marked as exhibit P7.

Regarding the element of knowledge, the prosecution further submitted that the accused knew about the impugned drugs from the subsequent action made by the accused, which falls squarely under section 8 of the Evidence Act, namely –

The accused was carrying the sling bag (exhibit P16(A)).

The accused refused to surrender his identity card (exhibit P16(B)) when PW2 initially asked him to do so.

There was a slight commotion during the arrest.

Furthermore, on the element of trafficking, the prosecution relied on the presumption under section 37(da)(vi) of the DDA, as the weight of the drugs of 243.65 grams ruled out the possibility that the drugs were for the accused's consumption. Instead, it gave rise to the presumption of trafficking under the respective provision of the DDA.

The defence primarily argued that the prosecution had failed to establish the ingredients of the offence because it did not call the investigating officer, as a result of which the photos marked as ID10 remained as such.

In this respect, the defence strongly urged the Court to invoke section 114(g) of the Evidence Act against the prosecution for the failure to call the Investigation Officer.

The CCTV evidence was material to the defence's case in establishing that other individuals were in the workshop at the time when PW2 raided the premises.

The defence in the supplementary written submission raised the issue of the photographs that were not tendered as evidence and marked as ID10. ANALYSIS AND FINDINGS OF THE COURT AT THE END OF THE PROSECUTION'S CASE

There was no challenge by the defence on the first element of the offence.

The Court is satisfied that the prosecution has established the first element of the charge. That PW1 had analysed the same drugs which PW2 had seized at the place of the incident and accordingly prepared the report marked as exhibit P5. From the analysis, PW1 testified that the drugs seized were cannabis, which were dangerous drugs under the Dangerous Drugs Act 1952 (DDA).

Thus, the prosecution had successfully established the first ingredient of the offence.

It is instructive for the Court to refer to the most profound case of Chan Pean Leon v PP [1956] MLJ 237, regarding possession, where Thompson J said: "A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need."

Hence, the prosecution needs to prove that the accused is so situated with the drugs that he has the power to deal with the drugs in question.

The case is straightforward. It is the prosecution's case that the accused had custody and control, as well as knowledge of the impugned drugs found in the sling bag exhibit P16(A), which the accused slung over the accused's body. The material evidence of PW2 and PW3 supports the prosecution's narrative.

PW2 is a police officer at Bahagian Siasatan Jenayah (BSJ) Kuala Langat. PW2 was conducting a special task force under section 506 of the Penal Code. The Investigating Officer for the case instructed PW2 to search for an individual named Mohd Rashid Sahuti.

PW2 and four other members of his team went to the premises. PW2 and his team arrived at the premises at 11.00 pm. Upon reaching the premises, PW2 and his team conducted static surveillance for about 5-10 minutes. When PW2 suspected that someone was on the premises, he instructed his team to enter. The store was small enough that PW2 could see whether any movement was on the premises.

PW2 instructed his team to enter the store when he suspected someone was inside. The team opened the gate to enter the store, which was closed but not locked.

PW2 and his team entered the workshop and saw the accused. PW2 introduced himself as a police officer. The accused was uncooperative and going back and forth in the store. PW2 asked the accused whether he was the person he was looking for. The accused refused to cooperate, so PW2 had to grab the accused. The accused protested. A commotion ensued before PW2 could successfully apprehend the accused.

PW2 searched the accused's body to check for his identity card. PW2 could not find the accused's identity card. The accused was carrying a sling bag. Upon a further search of the sling bag, PW2 found the drugs in the sling bag, and in that bag, PW2 also found the accused's personal item, his identity card. Thus, the trail of evidence could link the accused's possession with the drugs found in the sling bag.

PW2 brought the accused to IPD Kuala Langat and surrendered the accused to the investigating officer together with the incriminating evidence.

The Court is of the view that since the accused was carrying the sling bag with the impugned drugs in it shows clearly that the accused knew about the drugs. The accused's knowledge is further fortified by evidence of the accused's conduct, which showed the accused to be restless and aggressive when PW2 introduced himself as police, which points to the accused's knowledge of the impugned drugs. See Parlan bin Dadeh v PP [2009] 1 CLJ 717.

It is a trite law that inferences of knowledge is derived from the surrounding circumstances of the case. Reference is made to section 8 of the Evidence Act

The evidence provided by PW2, the raiding officer, whose team conducted a static surveillance for 5-20 minutes, indicated that no one entered or exited the workshop.

The accused was alone when the police raided the scene of the incident, despite the defence's assertion that other individuals were present on the premises. The Court could not agree with the defence on the point advanced, as PW2 did not arrest any other individual except the accused. As such, the prosecution's evidence had excluded the possibility of access by others.

In the instant case, the defence contended that this Court should be cautious in accepting the testimonies of PW2 and PW3. Nonetheless, there is no evidence to suggest that PW2 and PW3 had any evil motive towards the accused. There was no reason to frame the accused, and, most importantly, the Court found that the accused did not lodge a police report against them to support the defence's narratives.

Regarding the defence's issue with the photographs, ID10 and ID11, the Court is of the view that there is no merit in the defence's submission, especially given that there was no dispute about the place of the incident as stated in the charge. PW2 had provided direct evidence, further corroborating the police report exhibit marked P7 lodged by PW2.

Upon a maximum evaluation of the totality of the evidence, the Court found that the prosecution had successfully established the accused's possession of the dangerous drugs.

The defence raises another point, questioning PW3's credibility, specifically that PW3 is an interested witness and further submits that PW3 gave contradictory testimony regarding the CCTV when pressed by the defence during cross-examination.

According to PW3, the accused was PW3's mother's adopted son. The accused was having personal problems and did not have a roof to live under. PW3 then allowed the accused to remain in the store and to take good care of it for PW3.

The accused had been staying at the store for approximately 7 months before the police arrested him for drugs. The store was an abandon place to store machines and equipment. PW3 also testified that no one else was living in the store except the accused. PW3 went to the store about 2 months before the incident to check on the accused. But no one was in the store.

Returning to the issue raised by the defence that PW3 was an interested witness, the Court views that the contention has no merit on the basis that there is no principle of law to support that the evidence of interested witnesses is disregarded automatically.

Judicial propositions are clear that interested-witness evidence is acceptable to the Court unless there are clear reasons to disbelieve it, particularly when it is materially contradictory to other prosecution evidence. Having said that, the Court found that PW2's evidence was consistent with that of other prosecution witnesses.

Another challenge by the defence was a gap in the prosecution's case because it did not tender any CCTV evidence that the defence claimed was material to establishing the presence of other individuals on the premises.

PW3 explained that the CCTV did not function. It was a dummy CCTV with no decoder, and it was there to scare intruders, where PW3 testified "tidak berfungsi. Hanya untuk menakutkan pencuri.”

The prosecution did not rely on the CCTV evidence. But instead, the strength of the prosecution's case depends on other prosecution evidence.

The Court is of the view that the consistent testimonies of the prosecution witnesses had strengthened the prosecution's narratives, without the supporting evidence of the CCTV footage.

What is crucial to the Court is the quality of the evidence presented by the prosecution witnesses, rather than the number of prosecution witnesses. See section 134 of the Evidence Act.

Regarding the issue raised by the defence that there was a fatal failure by the prosecution to call the investigating officer. The Court found that the non-calling of the investigating officer was justified as it was due to the poor health condition of the investigating officer. The medical report and the medical certificates tendered through PW5 justify the Court in concluding that the prosecution attempted to secure the witness, but to no avail, due to the officer's health.

Furthermore, this is a straightforward case. Without the sling bag, the police would not have found the drugs in this case. The Court believes that the sling bag and the accused's IC were the critical evidence in this case.

The Court is of the view that there is other overwhelming evidence to prove that the prosecution has established the ingredients of the offence. The case of Teoh Hoe Chye v PP [1987] 1 MLJ 220, referred to by the defence, is distinguishable as the facts and issues are relatively different from those in the instant case.

The Court also wishes to distinguish the instant case from a Court of Appeal decision in Abdul Rashid bin Hanapi v Public Prosecutor [2022] MLJU 356, where the facts leading to the arrest of the appellant (the accused) were quite similar to those in the instant case. Except that the Court of Appeal had acquitted the appellant because the prosecution failed to tender the sling bag, which the appellant was carrying, with the drugs in it as an exhibit.

Contrary to the facts of the instant case, the Court had marked the sling bag as an exhibit 16(A). Hence, the Court admitted it as evidence, linking the sling bag to the accused. Simply put, it creates a nexus between the drugs and the accused. Furthermore, there was no one else in the store, and therefore the defence raised no reasonable doubt as to the accused's possession of the sling bag.

On the element of trafficking, in light of the weight of the drugs in this case, it justifies the prosecution to invoke the presumption.

The paramount question here is whether, upon a maximum evaluation of all the evidence at the end of the prosecution stage and based on the available evidence and credible evidence, the Court is prepared to convict the accused should the accused elect to remain silent if the Court were to call the accused to enter his defence, and the answer is in the affirmative. See Balachandran v PP [2005] 1 CLJ 85.

Based on the above, the Court ruled that the prosecution had established a prima facie case against the accused. The Court accordingly ordered the accused to enter his defence.

The accused chose to give evidence under oath. Other than the accused, the accused's sister (SD2) gave evidence for the defence.

The main thrust of the defence contentions, as summarised in the written submission, is as follows :

The defence version was that the prosecution had failed to exclude the possibility of access by others. This is especially so when the defence reiterated the same argument raised at the prosecution's stage, namely that the police not only arrested the accused, but also arrested three other individuals: Manja, Khairunizam, and Om.

The accused denied carrying the sling bag at the time of his arrest. Instead, the accused alleged that the sling bag was found on a table by the police. The accused denied knowing the bag's owner.

The accused claimed that his identity card was always in his wallet and put in his trousers' pocket. Therefore, the accused alleged that he did not know the presence of the sling bag or the contents of the drugs in it.

The accused stated that he had been working as a foreman at the store for about 5–6 months before his arrest. The accused said that, based on ID 10, the gate door at the store was always half-open.

The CCTV at the workshop was in good condition, and the footage could corroborate the defence's narratives.

SD2 was not an interested witness. Her evidence must be acceptable to the Court.

The prosecution, on the other hand, submitted that the accused's defence was a bare denial and an afterthought.

At the conclusion of the trial, the Court shall consider all evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

The crux of the defence's argument centred on the same point: that three other individuals had been arrested alongside the accused, including Manja bin Abd Latif. The defence argued that SD1's defence was not a bare denial defence. But a challenge against the prosecution's narrative and explanation of SD1's defence. See Siti Aishah bt Sheikh Abd Kadir v PP [2013] 6 MLJ

86.

While the defence mentioned the names Manja and Kharunnisa during the prosecution's stage, the new counsel acting for the accused during the defence stage raised another individual named Om. Clearly, the Court found that the defence of Om was an afterthought, as it had never raised it at the prosecution stage.

During the prosecution's case, the defence asked PW2, during cross-examination, about Manja bin Abd Latif, and PW2 denied, as can be seen from the following - Q: Cadangkan ada tiga individu lain selain Manja di tempat kejadian. A : Tidak setuju ada empat orang suspek ditahan.

Further, PW2 was also asked by the defence whether there was a police report regarding the arrest of the other three individuals. To which PW2 answered no.

During the re-examination, the prosecution asked PW2 why he did not make a police report, to which PW2 answered that there was no reason for him to make one because there was no such arrest of the so-called three individuals as alleged by the defence.

This Court is mindful of the version put forward by the defence during the prosecution's case, where it was merely suggestions and not a piece of evidence unless it is proven by a witness, as observed by Abdul Rahman Sebli JCA in Ali Hosseinzadeh Basher v PP [2015] 1 CLJ 918 : "It must be observed that what counsel puts or suggests to a witness in cross-examination is not evidence. They are merely suggestions and to give notice to the prosecution that the defence has a different version of the events. They prove nothing and will remain nothing unless confirmed by the witness or by the party on whose behalf the suggestions are made."

During the defence, SD1 also denied that the sling bag was found on his body, together with his identity card. The Court is of the view that accepting the accused's argument would mean that PW2 lied in Court.

The Court viewed such an allegation as serious, and the accused must demonstrate to this Court that PW2 had any intention to frame the accused. In other words, the police had an evil motive to harm the accused. Without any such proof by the defence, such as a police report against the police officer, the Court is of the view that the accusation was baseless and wild.

The Court found that the accused did not cooperate with the police when he was asked for his name to verify whether he was the individual the police were looking for in connection with an alleged offence under Section 506 of the Penal Code.

The accused did not cooperate, and PW2 had to apprehend the accused forcefully. The Court concluded that the accused knew about the drugs on his body (in the sling bag). Otherwise, the accused had no reason to be defensive.

In Khairuddin bin Hassan v PP [2010] 7 CLJ 129, the Federal Court decided that: "… based on both elements of the conduct of the appellant and his proximity to the recovered drugs, coupled with his failure to give any satisfactory explanation, he was in mens rea possession of the drugs."

During the defence stage, the defence submitted that SD1's evidence was corroborated by SD2 (SD1's sister), who stated that there was a possibility of access by others—for instance, Manja, Khairunnizam and Om.

Thus, a pertinent question to this Court is whether the accused was a credible witness for the Court to believe the defence's narratives. It is the Court's duty at this stage to assess the witness's credibility. Thus, for the Court to determine the accused's credibility regarding his defence, the critical question is whether the accused was telling the truth. See Tan Kim Ho & Anor v PP [2009] 3 CLJ 236.

Before the Court answered the critical question regarding SD1's credibility, the Court addressed SD2's (the accused's sister's) testimony to assess the credibility of the defence witnesses as a whole.

To begin with, the Court must exercise caution in accepting SD2's testimony as she was an interested witness. Furthermore, SD2, when cross-examined by the prosecution, admitted that she was not present at the place and time of the incident when the police arrested the accused.

Having scrutinised the notes of proceedings, the Court also found that SD2 gave contradictory testimony regarding the location of the CCTV decoder. SD1 said the decoder was in his room on the workshop's first floor (upper floor). SD2, on the contrary, gave evidence that SD1 placed the decoder on the ground floor.

Having carefully scrutinised the evidence and the questions posed by the defence to the relevant prosecution witnesses, and the credibility of SD1 and SD2 testimonies, the Court conclude that SD1 had raised nothing new at the defence stage except repeating the issues which the defence had raised at the prosecution's stage and dealt with by the Court at the prosecution's stage.

Hence, nothing here to justify the Court in disturbing its earlier finding at the end of the prosecution's case that there were no other individuals on the premises at the time of the incident when PW3 arrested the accused.

Regarding the defence's issue with CCTV, the CCTV installed on the premises was a dummy, as testified by PW2 (the workshop's owner). In this respect, the Court had already determined that the non-calling of the Investigation Officer was not fatal to the prosecution's case, as there was overwhelming evidence from the prosecution witnesses that the accused had possession of the impugned drugs.

Nevertheless, the defence, through the newly appointed counsel, reiterated the same argument regarding the non-calling of the IO on the CCTV footage. The defence argued that, had the IO given evidence, the IO could have dislodged the defence's argument that the IO had conducted an investigation of the CCTV and that the CCTV was not a dummy.

However, the defence did not provide any evidence through its witnesses. Whatmore the evidence of SD1 and SD2 contradicts one another. As the Court had determined at the prosecution's stage, the CCTV was a dummy, and the material contradictions between SD1 and SD2 regarding the CCTV further support the Court's determination.

In this respect, the Court refers to the decision in Ho Sek Hong v PP [2010] 4 MLRA 22, where the Court of Appeal in that case referred to the Privy Council decision in State of UP v MK Anthony AIR [1985]SC 48 where the Privy Council has stated "that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see: Bhoraj v. Sita Ram AIR [1936] PC60."

Based on the above, this Court found that SD1 and SD2 evidence lacked truthfulness and that the prosecution witnesses' evidence remained unrebutted.

As for the rebuttal of the presumption under section 37(da) of the DDA 1952, the Court found that the defence failed to rebut the presumption on a balance of probabilities. See – Abdul Manaf bin Muhamad Hasan [2006] 2 CLJ 129.

Applying Mat v PP, the accused failed to raise any reasonable doubt about the prosecution's case, based on the above.

As a conclusion, the Court is satisfied that the defence did not succeed in discharging the burden of proof on the balance of probabilities to rebut the statutory presumption of trafficking in the impugned drugs under section 37(da) of the DDA 1952.

For the reasons stated above, the Court decided that the accused was guilty and convicted the accused of the charge of trafficking under section 39B(1)(a) of the DDA. SENTENCING

Counsel for the accused submitted that the accused was 37 years old and had two children aged 15 and 16. Before the arrest, the accused was the sole breadwinner for the family and his parents. The accused had no prior criminal record—a first-time offender. Used to work as a part-time foreman. The counsel urged the Court to impose a lenient sentence, considering the weight of 243.65 grams of cannabis and that the accused has repented and expressed remorse. AGGRAVATING FACTORS AS SUBMITTED BY THE

The prosecution, in its oral submission, emphasised that public interest should outweigh the accused's personal interests. The prosecution strongly urged the Court to impose the maximum sentence, as the offence committed by the accused is serious.