Mohammad Hafizul Rashid Bin Emmy Jefri v Pendakwa Raya (W-05(M)-324-09/2021)

This is the Appellant’s appeal against the decision of the High Court in finding him guilty for an offence of trafficking in dangerous drugs under section 39B (1) (a) of the Dangerous Drugs Act 1952. The Appellant was convicted and sentenced to death under section 39B

of the same Act.

The charge against the Appellant at the High Court reads as follows- ‘Bahawa kamu pada 8 Mac 2018, jam lebih kurang 11.50 malam bertempat di alamat Blok E-14-7 Pangsapuri Kos Rendah, Bandar Tasik Selatan, dalam Daerah Cheras, Wilayah Persekutuan Kuala Lumpur telah didapati mengedar dadah berbahaya jenis Cannabis seberat 299.09-gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B (2) Akta yang sama’.

The case went for a full trial and at the end of prosecution’s case, the High Court found the prosecution has proven a prima facie case on the charge proffered against the Appellant. The Appellant was called to enter his defence and at the end of the defence case, the High Court judge found him guilty as charged. The background facts

On 8.3.2018, a team of policemen led by SP1 and SP2 raided the Appellant’s apartment in Bandar Tasik Selatan, Kuala Lumpur. At the apartment, SP1 found the door grill was locked. SP1 knocked on the door grill and the Appellant was seen opening the door grill. When SP1 introduced himself as policeman to the Appellant, the Appellant promptly reacted by closing the wooden door. SP1 ordered SP4 to kick the wooden door and when it was opened, SP1 and his team went into the apartment. The Appellant ran towards the kitchen carrying a red sling bag (P5) and attempted to throw P5 through the kitchen grill window. SP1 managed to stop the Appellant and arrested him. P5 was seized from the Appellant and upon checking P5, SP1 found a white box written “OPPO” (P10). Inside P10, SP1 found 1 slab of cannabis covered with plastic wrapping and 7 packages of cannabis covered with plastic wrapping (P11-(1-7)). The drugs were seized and marked as exhibits by SP1. A search list (P6) was prepared by SP1 listing out the items seized including the drugs. Thereafter, all the exhibits and the Appellant were taken to the Narcotic Headquarters office in Cheras and handed over to the investigating officer (SP6).

In this appeal, the Appellant raised one major point that the High Court judge had made an error by calling the Appellant to enter his defence against the charge of trafficking in dangerous drugs when there is gap in the prosecution’s case.

The Appellant submitted three (3) grounds which according to him the High Court judge had failed to consider otherwise, the learned judge might have found that there is no prima facie case proven on the charge against the Appellant. The grounds are as follows-

The identity of the drugs of which the Appellant was charged was doubtful based on the evidence of prosecution’s witnesses;

The Appellant did not have knowledge and possession of the said drugs; and

There was no proper and conclusive investigation carried out by the police in particular the presence of another tenant in the apartment.

We heard the oral submissions of the Appellant and the Respondent. Both the Appellant and the Respondent also relied on their written submissions. Having considered the submissions and read the record of appeal and also the grounds of judgment of the learned High Court judge, we are satisfied that there is no merit in the Appellant’s appeal. We find the grounds raised before us, have been considered and dealt with by the learned High Court judge in his grounds of judgment. Most importantly, the decision to call the Appellant to enter his defence on the charge of trafficking in dangerous drugs under section 39B (1) (a) of the Dangerous Drugs Act 1952 and subsequently convicted and sentenced the Appellant to death, the decision is based on the finding of facts from the evidence of witnesses given during the trial. We find that the decision is not plainly wrong for this Court to interfere. Therefore, we find the conviction against the Appellant is safe. The High Court decision is affirmed. It is our unanimous decision that the Appellant’s appeal is dismissed.

We give our reasons. This Court’s decision Whether the identity of the drugs of which the Appellant was charged was doubtful based on the evidence of prosecution’s witnesses

The Appellant submitted that there was serious doubt as to the identity of the seized drugs, namely, cannabis from the Appellant. It is the Appellant’s case that SP1’s evidence that he found 1 slab of cannabis and 7 plastic packets of cannabis wrapped with plastic wrapping differs from SP2’s evidence that he found loose dried leaf and not slab or package of cannabis. It was also submitted that SP6 in her evidence stated that the drugs handed to her by SP1 were slab and package of cannabis and not wrapped in plastic wrapping. SP6 also admitted that she kept the drugs which were handed to her by SP1 in a locked drawer. The said drugs were not marked as exhibits and there were also other drugs kept in the drawer. It was contended that there is no evidence that the weight of the drugs seized were taken. The Appellant submitted that the High Court judge failed to direct his mind properly on the identity of the drugs seized. There are gaps in the chain of evidence in the prosecution’s case and the Appellant should not be called to enter his defence (see: Sia Pang Liong v PP [2013] 2 MLJ 490); Lim Pah Soon v PP [2013] 6 MLJ 252).

We find the issues related to the identity of the drugs whether compressed or loose leaf and wrapped in plastic or not had been raised before the High Court judge. We noted that the High Court judge had considered the issue and applied his mind properly based on the evidence before him. The grounds of judgment of the High Court at paragraphs 21 to 38 showed that the issues were duly considered when the High Court judge said as follows- “Chain of exhibits [21] The defence submitted that the identity of the drug exhibits was not proven by the prosecution. This was because it was contended that aside from the 7 plastic packets, the single slab of Cannabis according to SP1, had no plastic wrapping around it whereas from the photographs as well as from the testimony of SP5, the Chemist, showed that the single slab was wrapped with plastic. [22] It was also submitted by the defence that the 7 plastic packets containing Cannabis was in loose form and not compressed. It was further submitted that SP1 agreed that from the photographs of the drug exhibits (P4), they were different from the drugs seized on the day of the raid. [23] The defence submitted further that according to SP2, the drugs in P10 were in the form of dried leaves and not as portrayed by SP1. [24] The sum total of the above submission by the defence concerns mainly the identity of the single piece of Cannabis. The complaint raised is whether or not the single piece of Cannabis was or was not wrapped with plastic and whether it was in loose leaf form or compressed. [25] Contrary to the submission of learned counsel for the defence that SP1 was not called upon to identify the drug exhibits, SP1 upon his recall to the stand, did identify the drug exhibits. [26] Although he initially testified that when the drug exhibit was seized, the single piece of Cannabis was not wrapped with plastic, the all-important thing is that SP1 had positively identified all the drug exhibits seized during the raid. [27] The fact as to whether the single piece of Cannabis was or was not wrapped is often a matter of perception by the witnessed concerned influenced by multifarious reasons not the least of which is a lapse in memory due to effluxion of time and not necessarily a result of a deliberate lie perpetrated in Court. [28] The offence was committed on 8.3.2018 while the trial commenced on 19.2.2019 which incidentally was when SP1 first testified. This is a lapse of almost one year. It must also be factored in that this was certainly not SP1’s only case. [29] What is pivotal is that the number of slabs or “ketulan mampat” in total were 8 including the single piece of Cannabis. There was no dispute, therefore, as to the quantity of the pieces of Cannabis recovered. This much was evident from the testimony of SP1. [30] The fact as to whether the form of the single piece of Cannabis was in loose leaf form or in the form of a slab “ketulan” is similarly subject to memory lapses due to time lapse or individual perception. It has to also be borne in mind that when SP1 identified the exhibits in Court, it was after the examination and analysis carried out by SP5. [31] Often, one person can perceive the same substance to be in loose form while another person can perceive the same substance to be in compressed form. Coupled with the time lapse between the date of recovery and the date of trial, it is not unusual for such discrepancies to occur between witnesses. [32] There is also evidence that SP1 had properly handed over the seized exhibits to SP6 upon arrival at lPD Cheras which was evidenced by a handover of exhibits document (“Borang Serah Menyerah”) duly signed by both SP1 and SP6 and tendered and marked as exhibit P8. [33] The above evidence was further corroborated by SP4 who testified that SP1 was in custody and control of the exhibits from the time it was seized until it arrived at the IPD Cheras after which SP1 duly handed over the exhibits to SP6. [34] SP6 also testified that she kept the exhibits in a locked drawer before handing the exhibits over to the Chemistry Department for analysis. [35] This handover by SP6 to the Chemist Department and her receipt of the exhibits back from the Chemist Department was also evidenced by proper documentation. [36] l find, therefore, from the evidence as a whole that as SP1 had positively identified the exhibits and it was in evidence that he had also marked the exhibits at the premises, that there was no doubt as to the identity of the exhibits. [37] I find, therefore, that the prosecution had proven that the exhibits seized on the day of the raid were the same ones produced in Court and positively identified by the relevant witnesses. [38] There was no break in the chain of exhibits.”

The High Court judge has made a finding that SP1 had positively identified the exhibits and that SP1 had also marked the exhibits at the premises. It is also in evidence that after the drugs were seized, SP1 handed the drugs to SP6 on 9.3.2018 and SP6 kept the drugs in the locked drawer and on 14.3.2018, she sent the drugs to the Chemistry Department for analysis. SP6 received the result of the analysis and the Chemist report by SP5 (Chemist) on 18.3.2018. SP5 in his evidence stated that the weight of cannabis identified as exhibits TK1 to TK7 is 59.09-grams and the weight of cannabis identified as exhibit TK8 is 240 grams.

We agree with the finding of the High Court judge that SP5’s evidence can be accepted at face value as held in PP v Lam San [1991] 1 CLJ (Rep) 391 and Munusamy Vengadasalam v PP [1987] CLJ (Rep) 221]. The analysis confirmed that the drugs seized from the Appellant are cannabis weighed 299.09 grams. Whether SP1 has taken the weight of the drugs seized during the raid in our view is immaterial. The Federal Court in Hasbala Mohd Sarong v PP [2013] 6 CLJ 945 held that the weighing process by the police is not the determining factor in the weight of the drugs, rather it is the weighing done by the chemist which determines the actual weight of the drugs and forms the basis of the charge.

The Court in Mazlan bin Mustaffa v PP [2015] MLJU 2127 held that there was no doubt that the drug exhibits seized from the appellant and as examined by the chemist were the same drugs exhibits that the appellant was charged with. There was no break in the chain of evidence and the drug exhibits were positively identified by the prosecution witnesses. The Federal Court referred to its earlier decision in Loh Kah Loon v PP [2011] 5 CLJ 345, which upheld the decision of the courts below even though there existed a discrepancy in the weight of the drug exhibits as found by the police and the chemist. The High Court as well as the Court of Appeal found it as a fact that there was no doubt in the identity of the drug exhibits because the evidence before the court showed there was no break in the chain of evidence. The movement of exhibits was clearly explained, and the markings on the drug exhibits were positively identified by the witnesses. The courts below were satisfied that the drug exhibits that were seized from the appellant were the same exhibits produced in the High Court. In the present case, the charge against the Appellant is correct.

The contradictions of evidence of SP1 and SP2 alleged by the Appellant are not material contradiction. The High Court judge was satisfied that the contradiction if any is due to the difference in their memory related to the events or a lapse in memory due to effluxion of time and not necessarily a result of a deliberate lie perpetrated in Court. The offence was committed on 8.3.2018 while the trial commenced on 19.2.2019 which incidentally was when SP1 first testified. This is a lapse of almost one year. In our view, there is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other (see: PP v Datuk Haji Harun bin Haji Idris (No.2) [1977] 1

The High Court judge had ruled that there was no break in the chain of exhibits. In other words, there is no break in the chain of evidence in the prosecution’s case. We cannot interfere with such observation and finding. As long as there is no break in the chain of evidence regarding the handling of the seized drugs exhibits, then the issue of the identity of the drugs would not arise (see: Ediawe Eshilama Clinton v PP [2015] 9 CLJ 169.

We find the issue raised has no merit. The Appellant did not have knowledge and possession of the said drugs;

The Appellant submitted that the finding of fact by the High Court judge that the Appellant had possession on the drugs found on him is wrong. The finding of fact is based on the evidence of SP1 that the red sling bag (P5) which contained the drugs is in the Appellant’s hand during the raid and the Appellant was at the kitchen attempting to throw out P5 through the grill window. On this fact, the High Court judge made a finding that the Appellant had custody and control over P5. The Appellant raised an issue that SP1’s evidence is not supported by SP2. The Appellant submitted that SP2 in his evidence stated that when the door was broken, the Appellant was running to the kitchen and SP2 never saw the Appellant attempted to throw P5 out of the window. It was further submitted that SP1 and SP2 agreed that they never saw the Appellant had opened P5 and the box “OPPO” (exhibit P10). They also agreed that if the Appellant never opened P5 and P10, it means the Appellant has no knowledge of the contents of P5 and P10.

It was also submitted that the element of possession against the Appellant collapsed by the arrest of Mohd Hasrol Nizam bin Halim which the prosecution’s witness admitted that it is related to the Appellant’s case. The arrest report is D2. The Appellant submitted that P5 belonged to Mohd Hasrol Nizam bin Halim. The Appellant’s wife, SD 2 in her evidence stated that P5 belonged to Mohd Hasrol Nizam bin Halim. SD3 also confirmed that P5 belonged to Mohd Hasrol Nizam bin Halim. It is the Appellant’s version that he never saw, carried or touched P5.

It was further submitted that Mohd Hasrol Nizam bin Halim, being the owner of P5 was never called by the prosecution to eliminate possession of cannabis against the Appellant. There is no evidence tendered during prosecution’s case by this witness. Therefore, it was submitted that section 114(g) of Evidence Act 1950 applies against the prosecution. It is not the duty of the Appellant to make good the prosecution’s case. Referring to the Court of Appeal case of Jamaludin Iwn Pendakwa Raya [2011] 2 MLJ 311, the Appellant submitted that the High Court judge had failed to consider that the Appellant did not have possession of P5 because P5 belonged to Mohd Hasrol Nizam bin Halim. It was also submitted that the Appellant’s defence is not an afterthought because the fact that P5 belonged to Mohd Hasrol Nizam bin Halim was put during prosecution’s case and supported by evidence from SD2 and SD3. It was also suggested during prosecution’s case that during the raid at about 11.30 pm, SD2 was at home and the Appellant just came back from work from the market. Mohd Hasrol Nizam bin Halim is the Appellant’s friend and he always came to the Apartment to meet the Appellant. The Appellant worked as a fishmonger. The High Court judge failed to consider that there was another person in the apartment.

The narrative of the prosecution’s case showed that the drugs was in the Appellant’s possession. In arriving at the decision, the High Court judge had relied on the settled law on possession. Thompson J made an observation in Chan Pean Leon v PP [1956] 1 LNS 17 that a movable 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. It was also held in PP v Denish Madhavan [2009] 2 MLJ 194 that once the elements needed to constitute possession are established, including the elements of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession.

Custody means having care or guardianship, goods in custody are in the care of the custodian and, by necessary implication, he is taking care of them on behalf of someone else, You cannot take care of goods unless you know where they are and have the means of exercising control over them (see: Leow Nghee Lim v R [1956] MLJ 28)

The Appellant contended that he had no knowledge of the drugs found in P5 because P5 did not belong to him but belong to Mohd Hasrol Nizam bin Halim. In our view, proof of knowedge here is not by direct evidence but circumstantial evidence relied by the prosecution. Augustine Paul FCJ in Parlan Dadeh v PP [2009] 1 CLJ 717 held that in most cases, knowledge cannot be adduced by direct or tangible evidence but only by inference from surrounding circumstances. Similarly, in Chan Pean Leon v PP [supra], it was said that intention is a mafter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. Again the possible variety of circumstances which will support such an inference is infinite. There may be something in the accused’s behaviour that shows knowledge, or the nature of the thing may be so obvious that it is possible to say ‘he must have known what it was’ or, again in cases under the Dangerous Drugs Ordinance, there may be statutory presumption which fills a gap in the evidence (see: Gunalan A/L Ramachandran & Ors v PP [2004] 4 CLJ 551).

Therefore, it is settled law that knowledge can only be inferred from surrounding circumstances. In the present case, the Appellant was holding P5 which contained the cannabis in his hand and attempted to throw P5 outside the window grill. The High Court judge made an inference from this fact that it is unreasonable for the Appellant not to have knowledge of the drugs inside P5. The High Court judge has made a specific finding based on the evidence presented by the prosecution during the trial. The Appellant’s NRIC was also found in P5. In other words, the decision is based on the finding of fact of which the High Court judge was satisfied that the Appellant has custody, control and knowledge of the dangerous drugs hidden inside P5. The High Court judge found the Appellant had actual posession of the drugs based on the evidence before him.

The finding of the High Court can be found at paragraphs 47 to 53 of the grounds of judgment reproduced here for ease of reference; - “[47] The evidence revealed that when the police team first arrived at the premises, they knocked on the wooden door of the house for a few minutes before the Accused opened the door. [48] After the police team identified themselves, the Accused closed the door after which the police had to break down the door by kicking it open. [49] The question that begs to be asked is why was there a need for the Accused to promptly close the door back upon learning that the visitors at the door to the house were policemen unless he had something to hide or attempt to hide or to dispose of or attempt to dispose of? [50] The Accused was then seen in the kitchen area attempting to throw a red bag containing the impugned drugs out of the kitchen grill. This is consistent of course with the earlier inference that the Accused had something to hide by way of disposing of the impugned drugs so as to avoid being associated with it and thus evading and avoiding any link between him and the incriminating exhibits. [51] After the Accused was arrested and the said bag (P5) seized, the police raiding party found the impugned drugs in the said bag together with the National Registration Identity Card (NRIC) of the Accused. There was at the time of the raid, no one else was in the premises. [52] The cumulative facts above point not only to the Accused having physical possession of the bag and therefore, the impugned drugs but also raises the reasonable inference of knowledge as to the contents of the said bag, namely the drugs. [53] Besides the fact that the Accused was seen by SP1 and SP4 holding the said bag in his right hand which showed that he was in physical possession of the said bag, the NRIC of the Accused was found in the bag which enables the further inference to be made that the said bag also belonged to the Accused. [54] In respect of the reaction of the Accused by first, closing the door after the police identified themselves and secondly, by attempting to throw the said bag containing the drugs out of the kitchen grill, reliance can be placed upon the case of Parlan Dadeh v. PP [2009] 1 CLJ 717…… [55] In addition to this, Section 8 of the Evidence Act 1950 is also relevant. The Section reads: Motive, preparation and previous or subsequent conduct 8 (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. [56] The conduct of the Accused in closing the door and in attempting to throw the bag prior to his arrest is thus a relevant fact to be taken into account. The inference is that he knew that the contents of the said bag (P5) contained the impugned drugs. All the evidence thus points to the Accused having knowledge of the impugned drugs contained in the said bag. [57] The available evidence showed that the Accused was so situated with respect to the impugned drugs that he had the power to deal with it as the owner to the exclusion of all other persons, and when the circumstances were such that he may be presumed to intend to do so in case of need which in this case, he actually did. [58] I find, therefore, that the Accused had actual as opposed to presumed possession of the impugned drugs forming the subject matter of the charge in this case.”

We find the finding is supported by evidence and not plainly wrong. The issue raised has no merit.

The Appellant also raised an issue that section 114 (g) of the Evidence Act 1950 applies to the prosecution for failure to call Mohd Hasrol Nizam bin Halim alleged to be the owner of P5. It was contended that SP1 and SP2 admitted that P5 belonged to Mohd Hasrol Nizam bin Halim. We agree that it is settled law that adverse inference under section 114 (g) is invoked when there is concealment of material evidence including witnesses and important documents for the case (see: Munusamy v Public Prosecutor [1987] 1 MLJ 492: Amri Ibrahim & Anor v PP [2017] 1 CLJ 617: Ong Hooi Beng & Ors v PP [2015] 3 MLJ 812).

This issue has also been considered by the High Court judge. The Appellant did not provide cogent evidence or any proof that P5 belonged to Mohd Hasrol Nizam bin Halim except for tendering a police report D2 as evidence that Mohd Hasrol Nizam bin Halim was arrested by the police. In our view the contention that P5 belonged to Mohd Hasrol Nizam bin Halim is mere speculation. The High Court judge in his Grounds of Judgment at paragraphs 75 to 80 has made his finding related to the issue including SP1’s and SP2’s evidence as follows- “Arrest of Mohd Hasrol Nizam bin Halim [75] The defence submitted that PW1 and PW2 admitted that there was an arrest made on a male Malay by the name of Mohd Hasrol Nizam Halim and a police report lodged in respect thereof namely, Salak SB-001288-2018 (exhibit D2) which is connected to the case of the Accused. [76] Learned counsel for the defence submitted that PW2 agreed that there was a possibility that the sling bag (P5) belonged to the said Mohd Hasrol Nizam Halim. [77] An examination of the testimony of PW2 during cross-examination revealed that he said he was unsure whether the sling bag belonged to the said Mohd Hasrol Nizam Halim in reply to the suggestion put forth by counsel. [78] This is very different from saying that the bag in fact belonged to Mohd Hasrol Nizam Halim. In any event, the allegation that the bag may possibly have belonged to Mohd Hasrol Nizam Halim is mere speculation and is not borne out by the evidence in the case. [79] PW2 also denied the suggestion that the Accused was not in the premises the day of the arrest. [80] All the circumstances, not the least of which is that the Accused closed the door upon hearing the police identify himself and that he attempted to throw out the bag from the kitchen, indicating that it was the Accused who had possession of the said sling bag containing the impugned drugs.”

We find the issue has no merit. There was no proper and conclusive investigation carried out by the police in particular the presence of another tenant in the Apartment

It was submitted that the police had failed to conduct proper and conclusive investigation. It is the Appellant’s defence that SD2, the Appellant’s wife, was at home during the raid and informed the police that there was a tenant by the name of Kamarul bin Hassan who stayed in the apartment and his friend SD3 and Mohd Hasrol Nizam bin Halim used to come and visit him. It was contended that the prosecution witnesses had failed to investigate another tenant in the apartment i.e., Kamarul bin Hassan. This is important because he is the friend of Mohd Hasrol Nizam bin Halim.

The Appellant submitted that during the trial the questions regarding no photograph of the apartment taken to show the two rooms for the purpose of eliminating the presence of another tenant in the said apartment and possibility of access by other persons apart from the Appellant were asked. The non-calling of the owner of the apartment to confirm that the Appellant is the sole tenant including the house bills have been put to the prosecution witnesses during the trial. It was also submitted that the police failed to seize Mohd Hasrol Nizam bin Halim’s towel and shirt in the apartment and conduct DNA on the items. There was also no fingerprint DNA done on P5 and also the drugs found.

The issue raised above according to the Appellant is very important to show that the police did not do comprehensive investigation and section 114 (g) of the Evidence Act 1950 can be invoked against the prosecution.

In the present case, as alluded to earlier, the narrative of prosecution’s case is that when the police raided the Appellant’s apartment, the Appellant was alone in the apartment and his reaction to close the door after the police introduced themselves as policemen and attempted to throw the sling bag (P5) which contained the drugs is sufficient to prove that the drugs was in the Appellant’s exclusive possession. Therefore, in our view, whether there existed another tenant in the apartment is irrelevant. The burden to cast reasonable doubt is on the Appellant of which the Appellant had failed to destroy the narrative of the prosecution in the present case.

We agree with the Prosecution that there is no evidence to show that the police had failed to conduct complete and exclusive investigation. In any event the same issue had been brought to the High Court judge’s attention during the trial. The High Court judge has made a finding that the police had conducted a fair and complete investigation. We reproduce the observation made at paragraphs 81 to 85 of the grounds of judgment as follows- “Unfair and incomplete investigation [81] Learned defence counsel further submitted that the investigation in the case was unfair and incomplete. [82] This was based on several factors which included the IO failing to check as to the ownership of the bag (P5) by paying a visit to the Social Institute of Malaysia to investigate whether the Accused was indeed employed there, failure to explain why there was no search list in connection with the seizure of the clothing's and cash, failure to take photographs of the damage to the main door, failure to test whether P5 could fit through the kitchen grill, failure to do fingerprint dusting or DNA testing and failure to draw up a sketch plan. [83] Most of these allegations advanced by the defence concern matters which are merely corroborative of the narrative of facts advanced by the prosecution. The prosecution case, however, is based upon direct evidence. While in cases in which the evidence is of a circumstantial nature, these matters may assume cardinal importance, this is less so where the evidence is direct. [84] The main plank of the prosecution case rests upon what the witnesses saw which clearly linked the impugned drugs to the Accused person and no one else. No one else besides the Accused was also in the premises during the raid. [85] Under these circumstances, it cannot be said that the said allegations made by the defence prejudiced the prosecution case in any manner nor does it necessarily lead to the case being classified as one being subject to an unfair or incomplete investigation.”

Based on the above finding, we find this issue raised by the Appellant also has no merit. Other issues

Other issues such as the address of the Appellant’s apartment where the arrest was made, stated by SP1 to be at Bandar Tasik Selatan, differs from SP2’s evidence who said that the address is at Tasik Height; SP1 stating that the observation done before arrest was between 2 to 3 minutes but SP2 said between 5 to 10 minutes and the evidence as the Appellant opened the door or SP1 ordered SP to kick the door open, in our view even if it is true, are minor discrepancies that would not affect the prosecution’s case.

Be that as it may, the High Court judge had considered the evidence in totality and made his finding of facts based on those evidence. In other words, the High Court judge had accepted the narrative of the prosecution. The Prosecution submitted that the discrepancies highlighted by the Appellant are not material discrepancies that would affect the prosecution’s case. The prosecution’s witnesses are credible, and their evidence is unshaken.

On the issue whether there was damage mark on the door of the apartment, we find the High Court judge has considered the issue and made his finding which can be found at paragraphs 86 to 88 of the grounds of judgment which are as follows- “No sign of the damaged door [86] The defence submitted that from a perusal of the photographs tendered by the prosecution, there were no signs that the door to the house which was broken into was damaged. [87] PW1, however, testified that it was only the door knob that was broken. In any event, the credibility of the members of the raiding party was unshaken although subject to vigorous cross-examination. [88] I find, therefore, that the version of the defence put forth by learned counsel for the defence in respect of the events that unfolded on the day of arrest, to be unfounded.”

In the present case, the High Court judge applied presumption under section 37 (da) of the Dangerous Drugs Act 1952 on account that the weight of the drugs 299.09 grams is more than the statutory weight of 200 grams. The Appellant also failed to rebut the presumption (see: PP v Yuvaraj [1969] 2 MLJ 89).

Based on the reasons stated above, it was our view there is no appealable error or misdirection by the learned Judge which warrants appellate interference. The principle of law governing appeals in criminal cases on questions of fact is well established, in that the Appeal Court will not interfere unless the balance of evidence is grossly against the conviction especially upon a finding of a specific fact involving the evaluation of the evidence of a witness founded on the credibility of such witness (see: Lai Kim Hon & Ors v PP [1981]

Having regard to the totality of the evidence, the surrounding circumstances and the probabilities of the case, it is our unanimous finding that the charge had been proven beyond reasonable doubt against the Appellant. For all the reasons above stated, we hold that the conviction is safe and amply supported by cogent and overwhelming evidence on record. Therefore, the appellant's appeal is dismissed, and the conviction and sentence of the High Court is hereby affirmed. Dated this 22 March 2023 sgd KAMALUDIN MD. SAID JUDGE COURT OF APPEAL MALAYSIA

Dato’ Taqiyuddin Yahya (together with Fadzlin Syaqinna) for the Appellant (Messrs Fadzlin & Associates)

Mohd Khushairy bin Ibrahim, Deputy Public Prosecutor for the Respondent (Attorney General Chambers)