Mohd Ashfieq Bin Mohamad v Pendakwa Raya (S-05(M)-53-02/2022)

This is an appeal by the Appellant (Mohd Ashfieq, the Accused), appealing against the conviction and sentence handed down by the High Court on 27 January 2022. Following the trial, the Appellant was found guilty of an offence under Section 39B(1)(a) of the Dangerous Act 1952 ("DDA 1952") and sentenced to death under Section 39B(2) of the same Act.

The Appellant was charged under Section 39B(1)(a) of the DDA 1952 for drug trafficking, to wit, 58.16 grams of Methamphetamine. The Appellant pleaded not guilty to the charge and went for a full trial before the learned High Court Judge ("learned HCJ"). After the trial in the High Court, the Appellant was convicted as charged and thereafter sentenced to death.

Aggrieved by the conviction and sentence, the Appellant appealed to this Court.

The Appellant was charged under Section 39B(1)(a) of the DDA 1952 for trafficking in 58.16 grams of Methamphetamine. The charge against the Appellant reads as follows: "That you, on the 10th day of June 2018, at about 4:00 p.m., located at the roadside of Masjid Kg. Tinusa 2, Batu 7, in the District of Sandakan, in the State of Sabah, did on your own behalf traffic in a dangerous drug to wit 58.16 grams of Methamphetamine and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act, 1952 (Act 234) and punishable under Section 39B(2) of the same Act."

We will begin with the prosecution's case. A total of four (4) witnesses provided testimony for the prosecution. The learned HCJ has thoroughly outlined the case for the prosecution in His Lordship's grounds of judgment. We respectfully adopt them with some necessary modifications.

It is the prosecution's case that on 10 June 2018 at approximately 2:30 pm, PW1 and the raiding team proceeded to the targeted location at Kg Tinusa 2, arriving about 30 minutes later. The team was instructed to conduct surveillance. About 15 minutes later, PW1 received information that "Along" would be at another location at around 4 pm on a motorcycle with the registration SSA 4459 to traffic drugs in the Masjid Kg Tinusa 2 area. PW1 and the team then headed to that location.

PW1 and his team carried out their surveillance from their cars. About 15 minutes later, PW1 saw the Appellant arriving on a motorcycle with a gray bag/backpack on his back. PW1's evidence from his witness statement, WSPW1, Q & A 12 stated: "Suspek tersebut telah berlegar-legar di sekitar kawasan Tempat Kejadian beberapa kali. Suspek seumpamanya sedang mencari sesuatu. Kemudian saya telah melihat suspek tersebut memberhentikan Motosikal tersebut di tempat letak kereta berbumbung yang berdekatan sebuah garaj. Seterusnya, suspek tersebut dilihat mengeluarkan sebuah bag plastik warna merah jambu daripada Bag tersebut. Suspek telah dilihat membuka bag plastik merah jambu tersebut dihadapannya sambil membelek-belek isi kandungannya. Perbuatan suspek telah berlarutan selama lebih kurang dua (2) minit. Seterusnya, saya telah melihat suspek melipat semula bag plastik merah jambu tersebut dan memasukkannya ke dalam raga Motosikal tersebut."

According to PW1, he observed the Appellant for about 15 minutes from his car, which was approximately 3 meters away from the Appellant and the motorcycle, before approaching the Appellant and identifying himself as a police officer by showing his authority card. He informed the Appellant that he was suspected of trafficking in dangerous drugs and would need to be detained for examination.

The Appellant looked shocked when PW1 identified himself, and attempted to flee by leaving the motorcycle behind. PW1 managed to apprehend him by pulling on the Appellant's bag and holding his arm. The Appellant struggled to escape but was subdued after a few seconds.

PW1 gave evidence that he then administered the caution under section 37B(1)(b) of the DDA 1952 to the Appellant. PW1 was not satisfied that the Appellant understood him and explained the caution in Bahasa Malaysia in a clear and easy-to-understand manner. The Appellant nodded in agreement to indicate that he understood the caution. PW1's witness statement (WSPW1, Q & A 20) stated that: Along ke? Suspek telah mengangguk kepalanya dan menjawab "Ya". Saya telah mengarahkan suspek untuk mengeluarkan pengenalan diri. Pemeriksaan kad pengenalan yang dikeluarkan mendapati bahawa identiti sebenar suspek adalah Mohd Ashfieq Bin Mohamad (No.KIP: 941208-12-6337) ("Tertuduh").

PW1 then asked the Appellant, "Ada atau tidak kamu membawa syabu?" to which the Appellant remained silent but appeared agitated. The Appellant's face seemed pale ("pucat"), and he simply stared at the basket of the motorcycle.

PW1 then examined the motorcycle and found a folded pink ("merah jambu") plastic bag (exhibit P5A) in which he discovered an orange plastic bag (exhibit P58) containing five transparent plastic bags filled with a crystalline substance suspected to be methamphetamine. The plastic bag from the chemist's laboratory, marked with the number 18-FR-S02806, was labeled as exhibit P6, and the powdery substance inside was designated as P6(a). The five transparent plastic bags were labeled as exhibits P6(i) through (v), and in addition to those bags, PW1 found the motorcycle's registration card and some keys (See WSPW1, Q & A 22).

Upon inspecting the bag/backpack that the Appellant was carrying, PW1 found one (1) green plastic bag (exhibit P15) containing 4 transparent plastic bags, each filled with dried leaves suspected to be from the cannabis plant. Nothing more needs to be said about these leaves as they are not the subject of the charge. A couple of Levi's jeans (P7A and P7B) were also found in the Jansport backpack marked as exhibit P7.

On 12.6.2018, PW3 brought the Appellant out of the BSJN lock-up and read him the caution pursuant to section 37B(1)(b) of the DDA 1952. PW3 conducted a clothes-fitting exercise on the Appellant, using the two pairs of Levi's jeans found in the Jansport backpack from which PW1 had observed the Appellant taking out the pink plastic bag containing the drugs. PW3 found that the two pairs of jeans fitted "perfectly with the Accused." (See WSPW3, Q & A 15).

PW3 stated that he reviewed the cautioned statement in which the Appellant identified "Jafri" as the owner of the motorcycle in question. After conducting his investigation, PW3 confirmed that the motorcycle belonged to Mohd Jafri Bin Awang (1/C No: 960419-12-7085). He verified the ownership and identity details with the Jabatan Pengangkutan Jalan and recorded Jafri's statement as Exhibit P18(1- 4). According to PW3's investigation, Jafri had no knowledge of the drugs found in the motorcycle's basket. (See WSPW4, Q & A 16-19).

PW4 (Chemist Officer) testified that on June 21, 2018, at 8:14 am, she received a sealed envelope marked 'H' from PW3. PW4 conducted the recognized Marquis test, the Simon test, as well as the GC-MS and GC-FID tests, determining the net weight of methamphetamine to be 58.16 grams from the crystalline substance seized, using calibrated electronic weighing equipment.

PW4 summarized the results in her report as follows: "Satu beg plastik (berlanda 'H1') berisi satu beg plastik (bertanda 'H2') berisi lima peket plastik (masing-masing bertanda 'H3' hingga 'H7') yang mengandungi bahan hablur jernih. Setelah dianalisis, saya mendapati berat bersih kesemua bahan hablur tersebut adalah sejumlah 254.00 gram yang mengandungi 58.16 gram Methamphetamine." PW4 confirmed that methamphetamine is listed in the First Schedule of the DDA 1952.

Upon a maximum evaluation of the evidence, the learned HCJ found that the prosecution had established a prima facie case against the Appellant in respect of the charge preferred pursuant to section 180(3) of the Criminal Procedure Code and His Lordship called upon the Appellant to enter on his defence

Based on the Appellant's evidence, the defence case is illustrated as follows: i. On 10.6.2018, the Appellant borrowed his friend's motorcycle, named 'Jafri'. The Appellant used the motorcycle and went from Taman Merpati to Taman Fajar. ii. At Taman Fajar, the Appellant went to Market Cheng Loong. The Appellant parked his motorcycle in an unfenced public area in front of Bazaar Ramadan Taman Fajar. Thereafter, he went to Kampung Tinusa. iii. When the Appellant arrived at Kampung Tinusa 2 ("the raid location") he heard the azan calling for prayers. The Appellant then stopped to perform his evening prayer at Masjid Kampung Tinusa 2. iv. Before praying, the Appellant parked his motorcycle in a public area near the Masjid Kampung Tinusa 2, where other vehicles were also present. v. The Appellant parked the motorcycle in the parking area for approximately 25 minutes for prayer. vi. After the Appellant completed his prayers, two individuals approached him without introducing themselves and abruptly accused him of being a drug trafficker. The Appellant denied the allegation. vii. Subsequently, the two individuals checked the front basket of the motorcycle and discovered five packets of drugs. The Appellant was shocked to see those packets, which did not belong to him, and he was unaware they were in the motorcycle's basket. hold the incriminating drugs, which he was unwilling to do. When the Appellant refused to hold the drugs, he was punched in the stomach for not complying with the order. ix. Later, two other individuals arrived and asked the Appellant to hold the incriminating drugs. Aware that he was in a public area, the Appellant was then requested to wear his helmet. The Appellant was taken to BSJN in a Kenari car along with four personnel, while another person rode the motorcycle.

The learned counsel for the Appellant outlines 19 grounds of appeal in the Petition of Appeal. After reviewing the submissions from the learned counsel for the Appellant, all the grounds are consolidated into two main grounds under the following headings: A. The prosecution failed to establish a prima facie case against the Appellant, as the Appellant had neither possession nor knowledge of the drugs. B. Lack of appreciation for the defence.

The essential ingredients of the offence of trafficking in a dangerous drug, as alleged in the charge, are: as defined in Section 2 of the Act and weighing 58.16 grams; ii. that the Appellant was in possession of the said drugs; and iii. the Appellant trafficked in the said drugs.

The learned counsel for the Appellant argues that the Appellant lacks exclusive possession of the 58.16 grams of Methamphetamine. This Methamphetamine was not found with the Appellant but rather inside a motorcycle basket where the Appellant was arrested, which is accessible by another individual, namely, one Mohd Jafri bin Awang.

The Appellant has no knowledge of the existence of the methamphetamine in the pink plastic bag, and he did not possess the 58.16 grams of methamphetamine, especially since the motorcycle was left in an open area accessible to anyone. The drugs, which were merely near the Appellant on the motorcycle, are not sufficient to establish that he had possession of them.

Since the Appellant is not the owner of the motorcycle but merely the rider at the relevant time, it is crucial for the Respondent to call the owner of the motorcycle to testify that the motorcycle had been in the Appellant's possession for quite some time and that the Methamphetamine recovered did not belong to him. This is especially important considering that Mohd Jafri bin Awang informed PW3 that he left his motorcycle in front of his house, which has no gate, allowing others access to it and raising doubts as to whether the Methamphetamine found in the motorcycle belongs to the Appellant.

Furthermore, the Appellant argued that there was nothing in the police report stating that the Appellant removed the pink plastic bag from a gray bag, which implies that PW1 did not witness anything suggesting that the pink plastic bag belonged to the Appellant.

So, the question now is whether there is any direct evidence that the Appellant was in possession of the pink plastic bag (P5A) containing the syabu drugs in question. What constitutes 'possession' is a question of law. Possession, in order to incriminate a person, must have the following characteristics: i. the possessor must know the nature of the thing possessed; ii. he or she must have in him/her a power of disposal over the thing; and iii. he or she must be conscious of his possession of the thing. (See: Leow Nghee Lim v Reg [1956] MLJ 28, PP v Mohd Radzi Bin Abu Bakar [2005] 6 AMR 203 and Director of Public Prosecution v Wishart Brooks [1974] AC 862).

It is well-established that the Respondent must demonstrate that the Appellant was in possession of the drugs seized by the police, meaning the Appellant had control, custody, and knowledge of them. For the charge of trafficking under Section 39B(1)(a) of the DDA 1952, the Appellant did in fact traffic the aforementioned drugs.

In this case, the Respondent made it clear to the learned HCJ that they would rely on proof of actual possession. Consequently, they would not invoke the presumption of possession pursuant to section 37(d) of the Dangerous Drugs Act 1952, under which only custody or control needs to be proved for the presumption of knowledge to be triggered.

The Respondent, in their submission, argued that factors to consider in determining whether the Appellant is in possession of the impugned drugs include his access to the location where the drugs were found and his physical proximity to them. Furthermore, possession need not be exclusive; a person may be deemed to be in joint possession of a drug that is in the physical custody and control of another if he or she willfully shares with the other the right of control over the drugs (cases referred to by the Respondent - Chan Pean Leon v PP [1956] 1 MLJ 237, PP v Muhammad Nasir bin Shaharuddin & Anor [1994] 2 MLJ 576, Fun Seong Cheng v PP [1997] 3 SLR 523, PP v Badrulsham bin Baharom [1998] 2 MLJ 585, PP v Abdul Rahman Akif [2007] 4 CLJ 337, and Ibrahim Mohamad v PP [2011] 4 CLJ 113).

In the present case, an observation was made by PW1 wherein the Appellant was seen to have taken out a pink plastic bag (Exhibit P5A) from a backpack (Exhibit P7) that he was carrying. PW1 also saw the Appellant looking into the contents of the said pink plastic bag. When the said observation was done, the Appellant was alone. The Appellant was in actual possession of the said pink plastic bag together with its contents (Exhibits P5B & P6(1-5)).

PW1 testified regarding the actual possession of the impugned drugs by the Appellant as follows: "...Suspek tersebut telah berlegar-legar di sekitar kawasan Tempat Kejadian beberapa kali. Suspek seumpamanya sedang mencari sesuatu. Kemudian saya telah melihat suspek tersebut memberhentikan motosikal tersebut di tempat letak kereta berbumbung yang berdekatan sebuah garaj. Seterusnya, suspek tersebut dilihat mengeluarkan sebuah beg plastik warna merah jambu daripada beg tersebut. Suspek telah dilihat membuka beg plastik merah jambu tersebut dihadapannya sambil membelek-belek isi kandungannya. Perbuatan suspek telah berlarutan selama lebih kurang dua (2) minit. Seterusnya, saya telah melihat suspek melipat semula beg plastik merah jambu tersebut dan memasukkannya ke dalam raga Motosikal tersebut..."

Based on the facts of the present case, the police raiding party did not observe anyone other than the Appellant having custody and control over the plastic bag P5A. There was no pillion rider. Furthermore, the Appellant was exercising dominion over P5A when he took the said plastic out of his backpack and looked through "membelek-belek" its contents.

The Respondent relies on the Court of Appeal decision in Ouseng Sama-Ae v Public Prosecutor [2011] 4 MLJ 756, where Gopal Sri Ram JCA (as he then was) delivered the judgment stating: "... Now, in order to establish a prima facie case against the accused by reliance on the presumption under s 37(da) of the Act, the prosecution had to prove: (i) that the accused was in actual physical possession of the drug in question: and (ii) that the accused at the material time had knowledge of the drug found to be in his possession, that is to say that he had mens rea possession (see Public Prosecutor v Badrulsham bin Baharom [1988] 2 ML] 585; {1987) 1 LNS 72). The first element was easily established here because the accused did have custody and control of the bag. Indeed, it is quite clear from the evidence that he was exercising dominion over Exh Pl 8 at all material times. The only question is whether he had mens rea possession. Like any other mental ingredient in an offence, this is to be inferred from the proved and admitted facts of each case. (Emphasis added)..."

The law is clear and well settled that proving knowledge is often a matter of inference. The material from which knowledge can be inferred varies from case to case. It would be sufficient for the prosecution to prove facts from which it could be properly inferred that the accused had the necessary knowledge (See PP v Abdul Rahman Akif [2007] 4 CLJ 337, FC).

The Court of Appeal in Moditaba Hosseinzadeh v Public Prosecutor [2015] MLJU 502 stated the following: "Knowledge that forms an integral part of possession can either be established through direct evidence or it can be reasonably inferred from the set of circumstances in a given case. Indeed, in the case of Gunalan a/I Ramachandran & Ors v PP [2004] 4 MLJ 489, it was said at page 506 therein by the Court that "Knowledge is to be inferred from the facts and surrounding circumstances of a case" (Emphasis added)

In the present appeal, the Appellant's reaction and conduct are clearly relevant and admissible under Section 8 of the Evidence Act 1950, as they pertain to the fact in issue (mens rea possession of the drugs). This can be inferred from the Appellant's contemporaneous conduct and the surrounding circumstances of the case as follows:

(a) appearing stunned when approached by the police (i.e., PW1) and team;

attempting to struggle with PW1;

avoiding submission into custody; and

nervous when questioned by PW1. [37] The evidence also constituted a strong presence and proximity between the Appellant and the drugs found. Firstly, the Appellant was riding on the motorcycle bearing registration no SSA 4459 and no pillion rider. Secondly, PW1 saw the Appellant took out the plastic bag from his backpack and "membelek-belek" the said pink plastic bag for about 2 minutes before folding it and putting it into the basket in front of the motorcycle. Thirdly, the pink plastic bag contained the drugs as per the charge. Fourthly, the Appellant nodded affirmatively when asked whether he was "Along". [38] It is our respectful view that the learned HCJ was correct when His Lordship made his findings on the issues of possession and knowledge at paragraphs 40,41,42,43,44 of his grounds of judgment. In fact, at the defence stage, the learned HCJ also made similar findings on the conduct of the Appellant. We reproduced as follows: "114. Considered together with the accused's look of shock or fright and attempt to run away, the accused's conduct is also telling of his knowledge that he had the subject drugs in his custody or control. It is trite that knowledge may be inferred from the facts - see Parlan Bin Dadeh ( supra) - and evidence of the accused's conduct is admissible (Evidence Act 1950, section 8). Taking into account the accused's actions in taking out the plastic bag, going through the contents before folding the plastic bag and putting it into the basket, the otherwise credible explanation that he looked frightened - because he was suddenly surrounded by a number of policemen in plainclothes and even the innocent can, in a misguided moment, attempt to flee - would not stand. The evidence cannot be evaluated in silos. The different strands of evidence have to be evaluated as a whole. [39] As for the element of knowledge, the learned HCJ was correct when illuminating that it is well-settled that the conduct of the Appellant is relevant and admissible under s 8(2) of the Evidence Act 1950. Therefore, it is incumbent upon the Appellant to explain his conduct as legally required by s 9 of the Evidence Act 1950. [40] Based on the circumstances of the case, even without the aid of the statutory presumption under Section 37(d) of the DDA1952, overwhelming affirmative evidence has demonstrated that the Appellant had control and custody over the drugs involved and was aware of the existence of the drugs inside the pink plastic bag he carried in his backpack. He took it out of the backpack and placed it in the motorcycle's basket. [41] It is our respectful view that, given the facts and circumstances of this case, the learned HCJ made the correct decision as follows: "45. The prosecution contended that since there was sufficient evidence of the accused having actual possession of more than 50 grams of methamphetamine, the statutory presumption of trafficking would be triggered under section 37(da)(xvi) of the Dangerous Drugs Act 1952." OTHER RELATED MATTERS Whether there is a break in the chain of evidence regarding the handling of drug exhibits. [42] In the case of Christopher Uchenna Efogwo v. Public Prosecutor [2017] 1 LNS 14 79, it was held that: "...[24] In our view, in a drug trafficking case, the prosecution must, as far as is practically possible, establish the chain of custody as follows:-

The seizure and marking of the dangerous drug recovered from the accused by the arresting officer;

The handover of the dangerous drug from the arresting officer to the investigating officer;

The handover by the investigating officer of the dangerous drug to the Chemist for chemical analysis; and

The production of the said dangerous drug seized in court as exhibits ..." [43] The Appellant's counsel contended that there was a break in the chain of evidence pertaining to the movement of the exhibits. The issues raised by the Appellant's counsel are as follows: i. Delay to seal the exhibit after it was seized; and ii. Unsatisfactory storage of the drugs Delaying the sealing of the exhibit after it was seized [44] The learned counsel for the Appellant submitted that the most glaring fact was that the items seized were not sealed, highlighting the discrepancies in the timing of handling the drug exhibits after they were found and seized, before being handed over to PW3. This has raised doubts about the identity of the drug exhibits and whether they were tampered with before being sent to PW4 for analysis, or whether the recovered drug exhibits were the same as those analysed by PW4. [45] The raiding took place at 4.00 pm on 10.6.2018. Thereafter, the Appellant was arrested by PW1. PW1 checked the motorcycle the Appellant was with and found a pink plastic bag with the name CUTE GIRL, which contained alleged drugs in it. PW1 then instructed the raiding party to return to BSJN and arrive there by 5.00 p.m. [46] Upon arriving at BSJN, PW1 marked the seized items with markings in a room alone. He then filled in the Senarai Borang Geledah, which he and the Appellant signed. PW1 proceeded to weigh the drugs found. After marking the items, at 6:15 pm on the same day, PW1 submitted the items to PW3, the investigation officer. In a short time, for about an hour, until the exhibits were surrendered to PW4, the drug exhibits remained in PW1's custody. [47] Having reviewed the evidence from PW1 and PW3, it is important to note that PW1 had control of the drugs from the time of seizure, during the car ride to the police station, while he was cataloging the evidence, until he handed over the seized items to PW3. The Appellant's claim that PW1 should have sealed the drug exhibits during this brief period lacks merit, as there is no evidence suggesting anything was amiss. PW3 kept the exhibits in his safe until they were transferred to PW4 for analysis in a sealed envelope. As mentioned earlier, PW4 secured the drug exhibits under lock and key. [48] The transition was accounted for and documented. The handover of the drugs from PW1 to PW3 was documented via P9(i) - (ii) with the markings 'J1 to J14' recorded thereon by PW1. Both PW1 and the recipient, PW3, signed off on P9(i) - (ii). When PW3 handed over the relevant seized items to the chemist (PW4), the handover was documented through a receipt issued by PW4, which was tendered at trial and marked as P20. [49] Another question raised by the Appellant's counsel was whether, when the items were with PW3, he also marked the items as "H." According to the Appellant, this raises the question of why the items need to be marked a second time if they were the same exhibits handed over from PW1 to PW3. [50] PW3, in his witness statement Q & A No. 7, affirmed that at around 6:15 pm, he received the drugs exhibit from PW1 that was marked as "J." PW3 then made another mark of "H" on the same exhibit. He also affirmed in his evidence that he could identify the exhibit by the markings made by himself and PW1. For clarity, we reproduce PW3's evidence as follows: "7. S: Apakah yang telah berlaku selepas kamu dimaklumkan mengenai tangkapan dan rampasan tersebut?" J: Pada jam lebih kurang 6.15 pm, Pengadu telah menyerahkan kepada saya kesemua barang kes seperti yang dinyatakan dalam Borang Akuan Penerimaan/Penyerahan Barang dan borang geledah search list. Penyerahan barang kes tersebut telah dilakukan dalam bilik saya di BSJN Sandakan. Borang Akuan Penerimaan/Penyerahan Barang dan borang geledah tersebut telah disediakan oleh Pengadu. Kemudian, saya telah menyemak borangborang tersebut serta memeriksa dan membuat perbandingan kesemua barang kes yang telah diserah oleh Pengadu. Saya telah mendapati bahawa borang-borang tersebut mengandungi semua barang kes yang dikemukakan oleh Pengadu. Saya telah kemudian meneliti barang kes yang diserah dan mendapati bahawa ianya mempunyai penandaan "J" diikuti dengan nombor. Penandaan tersebut telah dibuat oleh Pengadu.

S: Sekiranya kesemua barang kes tersebut ditunjukkan kepada kamu, dapat kamu camkan? J: Saya dapat cam kesemua barang kes yang dirampas oleh Pengadu menerusi penandaan yang saya dan Pengadu buat." (Emphasis added) [51] From the excerpt of the above evidence of PW3, it is clear that marking the letters "J" and "H" aimed to ensure easy and clear identification of the same exhibits by PW1 and PW3. We agree with the finding of the learned HCJ that PW1 and PW3 each made markings using their initials to indicate that the very exhibits in the custody of one had passed to the other, enabling them to identify the evidence through their handwriting in court. This is indeed to prevent any mix-up or misidentification. In our view, there is no merit in the red flag raised by the Appellant. [52] Furthermore, there is no evidence whatsoever to suggest that the sealed envelope marked 'H', which contained, among other things, the crystalline substance that was seized, had been tampered with or mixed up. Identity of disputed drugs in question [53] The learned counsel for the Appellant further contended that there is a break in the chain of evidence, particularly due to an inconsistency in the weight of the drugs when weighed by PW4 compared to when they were weighed by PW1 earlier. [54] PW1, the raiding officer, in his testimony and as stated in P10, mentioned that the total gross weight of drugs weighed by PW1 is 250.00 grams, while the total gross weight of drugs weighed by PW4 is 257.68 grams. There is an increase in the cumulative weight of the substance when it was previously weighed by PW1 compared to when it was weighed by PW4. PW4 also agreed to the discrepancies during her crossexamination. [55] The increase in the cumulative weight of the drugs raises serious doubts about the identity of the exhibits received by PW4. However, the prosecution failed to provide a credible explanation for the discrepancy in the weight of the drugs, which can be considered fatal to the prosecution's case. To support the Appellant's contention, Zaiful Bin Muhammad & Anor v Public Prosecutor [2013] 2 CLJ 383 was cited by the Appellant's counsel, which held that the differing number of "ketulan" in the original charge compared to the evidence of PW2—six "ketulan" mentioned in the original charge instead of two—clearly casts reasonable doubt on the identity of the subject drugs. [56] As a result, reasonable doubt was raised about whether the methamphetamine recovered by the police and sent to the chemist, PW4, for analysis was the same substance identified as methamphetamine, and it was concerning that substance for which the Appellant was charged with trafficking. A defect in the identity of the case exhibit in this matter is serious. [57] Our main concern regarding the issue raised by the Appellant is whether the Respondent has failed to provide a credible explanation for the discrepancy in the weight of the drugs. Our answer is " No." The discrepancy was convincingly explained by PW1. The assertion that PW1 did not provide an explanation is simply false. Relying on Ooi Choo Hock v. PP [20141 3 CLJ 239] and Lim Pah Soon v. PP [2013) 8 CLJ 800] to argue that weight discrepancies must be explained is therefore misplaced. This is what PW1 said in Q & A 30 of WSPW1: "Saya mengesyaki bahawa timbangan tersebut adalah tidak tepat memandangkan alat timbangan PDRM yang digunakan belum dikaleberasikan. Sehubungan itu, saya telah menggunakan berat yang terpapar pada alat penimbang sebagai berat tentatif sahaja bagi maksud pengkelasan seksyen kesalahan." [58] We are guided by the Federal Court decision in Hasbala Mohd Sarong v PP [2013] 6 CLJ 945, where the Federal Court clarified that the weighing process conducted by the police after the seizure of the drugs serves only for classification purposes in determining the most likely charge against the accused person. It does not affect the actual weight of the drugs. The Federal Court held that: "[21]..." ... 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. It is common knowledge that the weighing process undertaken by the police after the seizure of the drugs is only for classification purposes in the determination of the charge that will be most likely to be preferred against the accused and/or arrested person. More often than not, the disparity in weight of the drugs recorded is inevitable due to difference weighing methods preferred and the difference weighing apparatus used by the police force and the chemist department." [59] It is our considered view that the Appellant's challenge to the discrepancy in the weight of the drugs, which resulted in a break in the chain of evidence, has no foundation at all and therefore should be dismissed. Inadequate storage of the drugs [60] The learned counsel for the Appellant argued that there was insufficient evidence to establish whether the exhibit was in PW3's custody before it was handed over to PW4 for analysis. The Respondent should have demonstrated that the drugs were securely kept and not merely stored in "peti besi." However, the alleged "peti besi" where the exhibits were kept was not shown or presented before the Court. [61] Further, the learned counsel for the Appellant also submitted that the exhibits seized by PW1 and kept by PW3 should be stored in a special room designated for narcotic exhibits and recorded in the registration book. Here, PW3 failed to provide any document showing the movement of the exhibits. This raises doubts about the status and whereabouts of the drugs before they were handed to PW4. Consequently, it raises questions about whether the drugs produced in Court were actually the same ones allegedly seized from the Appellant. Such failure to produce or submit photographs of the location where the drugs were seized and stored could warrant an invocation of adverse inference under Section 114(g) of the Evidence Act 1950. [62] There was no evidential basis to justify the claim that a special room in the police station was necessary for storing the exhibits and maintaining a register, as the historical journey of the drugs did not indicate or imply any tampering or mix-up. The markings were made separately, verified, and confirmed by PW1, PW3, and PW4, who had handled the drugs along the way; the transition was documented and accounted for. Additionally, the photographs of the exhibits were submitted in court, as noted on pages 28 to 32 of enclosure 9 Rekod Rayuan Jilid 3. [63] PW3's evidence speaks volumes about the safekeeping of the drug exhibits. Refer to Q & A No.11 and 12 of PW3's evidence as follows: "11. S:Apakah yang kamu lakukan selepas membuat penandaan kepada barang kes tersebut? J: Pada tarikh yang sama jam lebih kurang 8.40 pm, saya telah mengarahkan D/Kpl Radzaid untuk merakan gambar barang kes yang diserah oleh Pengadu. Saya dapat cam D/Kpl Radzaid dan kesemua gambar barang kes sekiranya ditunjukkan kepada saya.

S: Apakah yang kamu lakukan seterusnya dengan barang kes tersebut? J: Pada 10.6.2018, jam lebih kurang 8.50 pm, saya telah menyimpan kesemua barang kes yang saya terima ke dalam peti besi di bilik saya di pejabat BSJN Sandakan. Kunci kepada bilik tersebut dipegang oleh saya seorang. Saya telah memastikan bahawa kesemua barang kes tersebut di dalam kawalan dan jagaan saya.". (Emphasis added) Failure to call the owner of the motorcycle [64] The learned counsel for the Appellant argues that the Respondent's failure to call Mohd Jafri bin Awang, the owner of a motorcycle bearing registration number SSA 4459, could critically undermine the prosecution's case. Mohd Jafri bin Awang's role was not limited to establishing ownership of the motorcycle; it can be concluded that he also knew the motorcycle was being used for drug trafficking. Nevertheless, he was not called as a witness in court, despite being a crucial witness for the prosecution's case. Therefore, the Appellant should not be compelled to enter a defence merely to address the gaps in the prosecution's case. [65] It is well-settled law that the prosecution has discretion regarding whether or not to call a particular witness (See Khoon Chye Hin v Public Prosecutor [1961] MLJ 105, 109). The Court of Appeal in Mohd Shamsir Md Rashid v PP [2008] 6 CLJ 738 adopts the same approach, stating that the law concerning the calling of witnesses by the prosecution is clear: the prosecution has discretion in determining which witnesses should be called, and the court will not interfere with the exercise of that discretion. [66] We agree with the finding of the learned HCJ that Jafri is not an essential witness for the prosecution's narrative. Guided by PP v Chia Leong Foo [2000] 4 CLJ 649, [2000] 6 MLJ 705, no adverse inference should be drawn against the Respondent for not calling Jafri, who was not a material witness to account for or provide evidence regarding the drugs taken out by the Appellant from his own Jansport backpack. The Federal Court in Ghasem Hozouri Hassan v PP [2018] 6 CLJ 133, [2018] 4 MLRA 174 made it clear that the prosecution only needs to present witnesses who are necessary for the completeness of its narrative, specifically to prove the essential elements of the crime. [67] There was no evidence or even suggestion that the Jansport backpack (from which the Appellant had taken the drugs) belonged to Jafri. Indeed, it will be recalled that the two pairs of Levi's jeans - exhibits P7A and P7B - in the backpack (exhibit P7) fitted the accused, even though it was suggested in cross-examination that there was only one pair of jeans in it. The suggestion that there was only one pair of jeans is contradicted by the seizure list, which was signed by the Appellant. Moreover, the Appellant acknowledged that exhibit P7 belongs to him in his cautioned statement, exhibit D1 at page 3 ("beg sandang saya"). There is thus no merit in the contention that the police or PW3 should have investigated Jafri further or that the investigation was incomplete. The Appellant's fingerprint was not found on the exhibit. [68] It was the Respondent's case that the Appellant was seen to open the pink plastic and "membelek-belek" the contents. However, serious doubt arises as no fingerprints or DNA of the Appellant were found on the drugs in question. This was confirmed by PW3 during his cross-examination, creating a gap in the Respondent's case, as it raises the question: how could the Appellant's fingerprints not have been detected if he was seen "membelek-belek" the contents? [69] It was undisputed that the dusting process was not conducted immediately after the arrest, but rather after the raiding officers returned to the police station, as confirmed by PW1's evidence. There were no viable fingerprints that could be lifted from the exhibit to establish a link between the Appellant and the seized items. Therefore, the Appellant argues that there was no physical contact, and no connection was established between the Appellant and the plastic containing Methamphetamine. This supports the assertion that the Appellant had no knowledge of, custody over, or control of the pink plastic. [70] In PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233, Chong Siew Fai CJ (Sabah & Sarawak), in delivering the judgment of the Federal Court, held: "We also find ourselves in agreement with the learned Deputy Public Prosecutor that the learned trial Judge had erred in law when he faulted PW13, the investigating officer, for not lifting the finger prints off the wrappings of the cannabis and for not taking photographs of the street light in front of the house No.129. Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumes little value or significance." (Emphasis added) [71] The Court of Appeal adopted a similar approach in Megan Rai Ravi & Anor v PP & Other Appeals [2020] 3 CLJ 240, ruling that fingerprint evidence serves only as corroborative evidence, gaining significance when questions arise concerning the identity of the culprit. [72] Applying the principle in PP v. Mansor Md Rashid & Anor (supra) and the facts of the case, in our view, the identity of the Appellant is undisputed and does not require proof. Therefore, fingerprint evidence on the pink plastic bag and the five transparent plastic bags containing a crystalline substance suspected to be Methamphetamine holds little value or significance. At best, if fingerprint evidence were obtained, it would only provide corroborative value. [73] We agree with the learned HCJ's finding that the absence of the Appellant's fingerprints does not exonerate him, as the prosecution's case relies on the direct evidence of PW1, who saw the Appellant take out the pink plastic bag, P5A, open it, and rummage through its contents for about two minutes before folding it and putting it inside the body of the motorcycle. PW1 made his observations from a distance of approximately three meters. The Appellant should have focused on PW2's evidence, but there was no question of mistaken identity. [74] Upon a thorough evaluation of the evidence and for the reasons stated above, the learned HCJ was correct in his decision that the Respondent had established a prima facie case against the Appellant regarding the charge brought under section 180(3) of the Criminal Procedure Code, and His Lordship called upon the Appellant to present his defence. B. LACK OF APPRECIATION FOR THE DEFENCE. [75] The Appellant chose to give evidence under oath and also called Insp. Nurfarahin (DW2), who recorded the Appellant's cautioned statement, and one Mohd Bahjan bin Bahaman (DW3), a friend of the Appellant. [76] Learned counsel for the Appellant submitted in a presumptuous and possibly careless manner that anyone could have left the drugs in the basket of the motorcycle: i) when the Appellant went to the Ramadhan bazaar at Taman Fajar, or ii) When the appellant went to pray at Masjid Kg Tinusa, the motorcycle was parked in a nearby public place; or iii) when it was at Jafri's unfenced residence. [77] We agree with the learned HCJ's finding that not every possibility creates a reasonable doubt. There was no evidence that anyone knew the Appellant would stop by Taman Fajar to shop for food, or that upon hearing the azan call to prayer, he would park the motorcycle in that particular spot, which would corroborate PW1's testimony that he received information the Appellant would be at the location to traffic drugs. In his cautioned statement, the Appellant said he borrowed the motorcycle to go to Taman Fajar to buy food. There was no evidence, and the Appellant did not say he told Jafri that if he could not find food at Taman Fajar, he would go to Kg Tinusa 2. [78] The Appellant only raised the possibilities that could have occurred on the material date. The possibilities raised are, however, merely conjectures. They do not create reasonable doubt. Most importantly, these possibilities do not address the elephant in the room: the Appellant was observed taking the pink plastic bag containing the drugs from his backpack, rummaging through the contents before folding it and placing it in the motorcycle's front basket. [79] Additionally, there was no evidence suggesting a motive for PW1 or the other prosecution witnesses to frame or set up the Appellant. There was no evidence of prior animosity between PW1 and the Appellant; therefore, PW1 had no reason to blame the Appellant without any ulterior motive. The testimony of PW1, being a police officer, should be accepted unless it is undermined by cross-examination or the Court chooses to disbelieve him. The Appellant must provide sufficient evidence of this motive to create a reasonable doubt in the prosecution's case. Only then would the burden of proof shift to the prosecution to show that no such motive existed. In this case, there was none. [80] As for the Appellant's allegation that he was punched in the stomach and forced to hold the drugs, it is important to note that the Appellant did not mention the alleged use of force in his cautioned statement. The Appellant's allegation carries little weight, and his silence in this context speaks volumes about the inexplicability of his story. [81] There was compelling evidence from the prosecution's witnesses that the accused removed exhibit P5A, which contained the drugs, from exhibit P7. He rummaged through it, folded it, and placed it in the motorcycle basket. This dismisses the Appellant's claim that he did not know about the drugs in his possession. His contention is not only unjustified but also lacks merit. [82] The duty of the court at the conclusion of the trial is to consider all the evidence adduced and decide whether the prosecution has proved its case beyond a reasonable doubt (See s 182A, Criminal Procedure Code). After reviewing the entire Record of Appeal and the submissions from both parties, we find that the learned HCJ has thoroughly analysed the defence evidence presented by the Appellant. The learned HCJ concluded that the Appellant's defense does not create a reasonable doubt regarding the Respondent's case. We agree with the learned HCJ's findings at the end of the defense case as stated in paragraphs 128 and 129 of His Lordship's grounds of judgment. "128. Having considered the evidence as a whole, heard the witnesses and perused the submissions, the court finds that the prosecution has proved its case against the accused beyond a reasonable doubt. The accused has failed to cast a reasonable doubt although a variety of issues has been raised including the identity and weight of the drugs, allegations on breaks in the chain of evidence, the number of police personnel at the crime scene, the prosecution's failure to call Jafri (the registered owner of the motorcycle) and to offer him as a witness to the defence, insufficiency of details in the police report, alleged discrepancies in the prosecution's evidence, the absence of fingerprints and DNA evidence linking the accused to the drug exhibits, the accused had been framed by the police, and the possibility that the drugs were planted by others.

The essential ingredients of the offence have been proven beyond reasonable doubt: identity and weight of the drugs (58.16 grams of methamphetamine) and actual possession which triggered the statutory presumption of trafficking under section 37(da)(xvi) of the Dangerous Drugs Act 1952, The accused failed to rebut the presumption of trafficking on a balance of probabilities. See section 105 of the Evidence Act 1950 and PP v Yuvarai (1968) 1 LNS 116." [83] The learned HCJ has rightly convicted the Appellant for an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 with which he had been charged. APPEAL ON SENTENCE [84] For an offence committed under s 39B(1)(a) of the DDA 1952, the punishment for the offence is stipulated under s 39B(2), which reads: "（1）No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—

traffic in a dangerous drug;

offer to traffic in a dangerous drug; or

do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than twelve strokes." [85] Section 54 of the Abolition of Mandatory Death Penalty Act 2023 (ACT 846), which took effect on July 4, 2023, amended Section 39B(2) by reducing the number of whipping strokes from 15 to 12. Additionally, Section 54 of the Act repealed Sections 39B(2) and 39B(2B) of the DDA 1952, which outline the statutory grounds that allow the court to exercise its discretion in imposing a life imprisonment sentence with whipping instead of death. The amendments to Section 39B(2) of the DDA 1952 are detailed in Part VI, Section 54 of the Abolition of Mandatory Death Penalty Act 2023 (ACT 846). [86] Section 54 reads: "Amendment of section 39B

The Dangerous Drugs Act 1952, which is referred to as the "principal Act" in this Part, is amended in section 39b -

in subsection (2), by substituting for the words "be punished with whipping of not less than fifteen strokes" the words "be punished with whipping of not less than twelve strokes"; and

by deleting subsections (2a) and (2b).

Upon the coming into operation of this Act, if a person is convicted by any court for the commission of an offence under section 39b of the principal Act, the person, whether at a trial or on an appeal, shall be sentenced in accordance with the provisions of the principal Act as amended by this Act even though the offence was committed before the date of coming into operation of this Act." [87] Section 54 of the Act made changes to only two aspects of Section 39B(2) of the DDA 1952, specifically: i. It reduced the minimum number of whippings from 15 to 12 strokes; and ii. It abolished Section 39B(2A) and (2B) of the DDA regarding the statutory grounds that allow the court to use its discretion in sentencing life imprisonment, along with whipping instead of death. to life imprisonment, as the statutory limitations in Section 39B(2A) and Section 39B(2B) of the DDA 1952 have been eliminated. The current law places complete discretion in the hands of the court to determine whether a convicted person's life shall end at the gallows or be spared through life imprisonment with a minimum of 12 strokes of the whip. [89] The question that has arisen now concerns the interpretation of the term "life imprisonment." While the Abolition of Mandatory Death Penalty Act 2023 (ACT 846) made changes to the Dangerous Drugs Act 1952, it did not include any specific amendment to the meaning of "life imprisonment" for Section 39B(2) of the DDA 1952. Given that the Dangerous Drugs Act 1952 is a special Act and does not specify the definition or interpretation of "life imprisonment," the term "life imprisonment" in DDA 1952 should be understood in conjunction with Section 3 of the Criminal Justice Act 1953 (Revised 1988) ("CJA 1953"), which states that the term of life imprisonment is 30 years. [90] The CJA 1953 pertains to penal servitude, methods of imprisonment, and whipping, as well as related purposes. Section 3 of the CJA 1953 states: "Life sentences

Where any person is treated as having been sentenced or is hereafter sentenced to imprisonment for life, such sentence shall be deemed for all purposes to be a sentence of imprisonment for thirty years." [91] According to s.3 of the CJA 1953, "life imprisonment" is defined as "where any person is treated as having been sentenced or hereafter sentenced to imprisonment for life, such sentence shall be deemed for all purposes to be a sentence of imprisonment for 30 years." Since s.54 of the Abolition of Mandatory Death Penalty Act 2023 (ACT 846) is silent on the term of life imprisonment, s.3 of the CJA 1953 is therefore applicable, meaning that imprisonment for life refers to 30 years. There is no indication that life imprisonment is less than 30 years or differs from what is stipulated under the Act. [92] Regarding sentencing, we invite both parties to submit their arguments. The learned counsel for the Appellant argues that the death sentence should be set aside and replaced with life imprisonment under s.39B(2A). The learned Respondent's counsel has no objection to imposing 30 years of imprisonment and 12 strokes on the Appellant. [93] Upon hearing the parties regarding the appropriate sentence to be imposed in light of Act 846, we are inclined to commute the death sentence issued by the learned HCJ to 30 years of imprisonment along with 12 lashes of whipping. The imprisonment term shall take effect from the date of arrest. CONCLUSION [94] In conclusion, the learned HCJ was satisfied that the Appellant had failed to raise any reasonable doubt on the prosecution's case and that the prosecution had proven its case against the Appellant beyond a reasonable doubt. We fully agree with the learned HCJ. [95] We are also satisfied that the learned HCJ had not misdirected himself to occasion an error either on the law or the facts, which would otherwise warrant appellate intervention. [96] Our decision is unanimous, and we found no merit in the appeal on conviction. We find the conviction is safe. We thus affirmed the conviction. As for the sentence, we set aside the death sentence and imposed life imprisonment for 30 years with 12 strokes of the whip. The imprisonment term shall take effect from the date of the arrest. (MARIANA BINTI HAJI YAHYA) Judge Court of Appeal Malaysia. PUTRAJAYA Dated: 26 May 2025 Counsel for the Appellant Hamida Binti Ambo together with Shahlan Sufri, Messrs. Ambo & Co, Lorong Bandar Indah 4, Bandar Indah, 90000, Sandakan, Sabah. Counsel for the Respondent Atiqah Binti Abdul Karim @ Husaini, Deputy Public Prosecutor, Appellate And Trial Division, Attorney General's Chambers; Putrajaya.