MOHD FAIZAL BIN AMRAN v Pendakwa Raya (KA-41S(A)-1-03/2025)

These appeals arise from the decision of the Magistrate's Court at Alor Setar in Criminal trial number KA-82D-4-05/2024 (which was previously registered under case numbers KA-82D-8-05/2020 & KA- 82D-13-08/2023), whereby the learned Magistrate found both Mohd Faizal bin Amran (Appellant in Criminal Appeal No. KA-41S(A)-1- 03/2025) (“SD1”), Ridzuan bin A. Rahmat (Appellant in Criminal Appeal No. KA-41S(A)-2-03/2025) (“SD2”) (collectively, “the Appellants”) were guilty and convicted them of the charge under Section 30(3) of the Poisons Act 1952 (“the Act”), punishable under Section 30(5) of the same Act read together with Section 34 of the Penal Code.

In the court below, the Appellants were tried together in a single trial. At the close of the prosecution's case, the learned Magistrate was satisfied that a prima facie case had been established and called upon the Appellants to enter their defence. Upon the conclusion of the defence stage on 23.02.2025, the Magistrate sentenced each Appellant to a fine of RM 10,000.00, in default of which they would serve 18 months in prison.

Dissatisfied with that decision, the Appellants filed the present appeals before this Court under the respective appeal numbers KA- 41S(A)-1-03/2025 (for SD1) and KA-41S(A)-2-03/2025 (for SD2).

As these appeals spring from a common trial, share an identical substratum of facts, and rely upon the same body of evidence adduced before the Magistrate’s Court, this Court heard the appeals concurrently and delivers this single judgment disposing of them simultaneously.

This judgment sets out the full amplitude of my reasons for this decision.

On 28.05.2020, at approximately 5:00 pm, the Appellants were arrested by the roadside in Kampung Guar Kepayang, Pendang, Kedah. During the arrest, the arresting officer (SP4) inspected the vehicle the Appellants were travelling in, a white Mazda CX-5 bearing registration number VBJ 8280, which was visibly marked with "POLIS" emblems.

The inspection led to the discovery of 25 large white gunny sacks (marked "E1" to "E25"), each containing a black plastic bag (marked "Y1" to "Y25"). Inside these bags were 238.9 kilograms of green leaves, which the chemist (SP2) later confirmed to contain the psychotropic substance Mitragynine.

At the material time of the incident, the SD2 was driving the vehicle, while SD1 was merely a passenger. In the Magistrate's Court at Alor Setar, the Appellants were jointly charged under Section 30(3) of the Act for having in their control 238.9 kilograms of Mitragynine, an offence punishable under Section 30(5) of the same Act read together with Section 34 of the Penal Code.

Having subjected the evidence to a maximum evaluation as required by law, and upon considering the entire record of appeal, the grounds of judgment of the Magistrate's Court, and the submissions advanced by both parties, this Court finds that the convictions are fundamentally unsafe. The appeals are allowed, and the convictions are quashed based on the following principal grounds: A. MISDIRECTION ON THE APPLICATION OF PRESUMPTIONS VS

Before this Court, the learned Counsel for the Appellants submitted that the Magistrate had committed a fatal misdirection in law by conflating two distinct legal concepts. The Appellants highlighted that the trial court made a finding of actual possession based on the sheer volume of the drugs in the vehicle, whilst simultaneously invoking the statutory presumption of joint possession and knowledge under Section 30(4) of the Act. Relying on the Court of Appeal decision in Seyedalireza Seyedhedayatollah Ehteshamiardestani v. PP [2014] 5 MLRA 705, the Defence argued that this failure to elect prejudiced the accused.

In response, the learned Prosecutor argued that the Magistrate's finding was safe, submitting that the sheer volume of the 25 sacks of ketum leaves filling the vehicle to the roof led to an irresistible inference of exclusive custody and control by both Appellants, making the invocation of presumptions merely secondary.

This Court finds that the learned Magistrate committed a serious error of law by making mutually exclusive findings to establish the core elements of possession and knowledge. The Magistrate relied on direct circumstantial evidence, inferring actual physical possession because the 25 sacks of contraband were so voluminous that they filled the vehicle up to the roof. Yet, simultaneously, the Magistrate invoked the statutory presumption of joint custody and control under Section 30(4) of the Act.

As firmly established by the Court of Appeal in Seyedalireza (supra) and affirmed by the Federal Court in Mohamad Hanafi Mohamad Hashim v. PP [2017] 2 MLRA 288, a trial judge's failure to make a specific election between actual possession and presumed possession creates deep uncertainty and amounts to a misdirection. These two concepts are legally distinct and impose entirely different burdens of proof on the defence. Relying on both of them simultaneously to secure a conviction deprives the Appellants of a fair trial.

Furthermore, the learned Magistrate completely failed to appreciate the testimonies of the prosecution's own witnesses regarding the vehicle (Mazda CX-5, registration VBJ 8280). The Defence successfully established through SP1 (Kpl Nor Azrin), SP3 (ACP Mohd Azani, Chief Security Officer of Istana Negara), and SP5 (Sjn Amir) that the vehicle was not a private car exclusively owned by the Appellants.

SP3 and SP5 testified that the Mazda CX-5 was an official vehicle utilised for the unofficial escort duties of the YDPA. Shockingly, the prosecution's witnesses confirmed that up to 25 escort personnel had access to this vehicle, that there was no logbook maintained for its use, and that the keys were habitually left unsecured inside the vehicle to ensure it was always on standby for immediate deployment. SP1 testified that the last time he used the vehicle was on 25.05.2020, leaving it empty, and he had no knowledge of who accessed it thereafter. Applying the principle in Chan Pean Leon v. PP [1956] CLJU 17; [1956] 1 LNS 17; [1956] MLJ 237, mere proximity to the contraband in a shared, freely accessible vehicle does not, on its own, support an inference of actual possession or exclusive control.

As authoritatively established in PP v. Lee Sam Thye & Anor [1982] 1 MLRH 144; [1982] CLJ (Rep) 661; [1982] CLJ 489, it is highly dangerous to presume custody or knowledge of things hidden inside a borrowed or shared car. The prosecution completely failed to adduce independent corroborative evidence, such as fingerprint or DNA analysis on the black plastic bags, to establish a nexus between the Appellants and the drugs conclusively. Without fingerprint evidence, the investigation by the Investigating Officer (SP6) was glaringly incomplete. Mere physical proximity to opaque bags inside a shared, highly accessible vehicle does not automatically give rise to an inference of actual possession (animus possidendi) or knowledge (mens rea) under the strict threshold of Chan Pean Leon v. PP (supra). B. A FATAL BREAK IN THE CHAIN OF EVIDENCE AND FLAWED

The Appellants heavily contended that the chain of evidence was severed due to several alleged flaws: the physical exhibits had severely decomposed ("reput dan basah"), some bags allegedly lacked Chemistry Department or PDRM seals, and crucially, the remaining bulk samples (baki sampel) analysed by the Chemist (SP2) were not presented in court.

Conversely, the Prosecution rebutted this by relying on the Federal Court case of Hasbala Mohd Sarong v. PP [2013] 6 MLRA 1; [2013] 6 MLJ 636; [2013] 6 CLJ 945; [2013] 6 AMR 324. The Respondent submitted that ketum leaves are inherently perishable and that, because of the four-year gap between the 2020 arrest and the 2024 trial, the exhibits had naturally decomposed and dried, thereby adequately explaining the discrepancies. i. The Absence of the Remaining Bulk Samples 19. The prosecution's case suffered a fatal blow due to an unexplained, glaring break in the chain of evidence. The Chemist (SP2) testified that she extracted approximately 10% of representative samples from the 25 seized gunny sacks for analysis. This amounted to a massive 25 kilograms of physical evidence. However, these remaining analysed samples were never returned to the police or produced in Court.

Crucially, during cross-examination, the Investigating Officer (SP6) openly admitted that he had no knowledge of the whereabouts of these 25 kilograms of analysed evidence: Soalan Di mana baki analisa barang-barang kes ini? Setuju tuan tidak dapat jawab? SP6 Dengan izin puan, ya saya setuju.

This Court holds that the Magistrate’s acceptance of the prosecution's 'natural decomposition' argument under Hasbala Mohd Sarong(supra) is fundamentally flawed. While the natural drying and composting of organic leaves perfectly explains a reduction in gross weight or a change in physical appearance (from fresh leaves to wet clumps), it does not explain the total, untraceable disappearance of 25 kilograms of physical evidence.

Furthermore, while the Prosecution relied on Gunalan a/l Ramachandran & Ors v. PP [2004] 4 CLJ 551 to argue that a gap post-analysis is not fatal, that case explicitly demands that the prosecution must provide a "reasonable explanation" as to how the exhibits were lost or destroyed. SP6's admission of total ignorance does not constitute a "reasonable explanation" in law. Applying the strict standard in Sia Pang Liong v. PP [2012] 9 CLJ 848, the total failure to account for the bulk of the analysed exhibits casts an unbridgeable reasonable doubt as to their identity, thereby severing the chain of evidence.

While the prosecution heavily relied on the Court of Appeal’s decision in Adhy Tedjajadi v. PP [2015] MLJU 771 to argue that an affirmative confirmation by the exhibit handlers is legally sufficient to secure the identity of the exhibits. This Court finds such reliance to be entirely misconceived on the facts. The strict prerequisite of Adhy Tedjajadi (supra) requires the handler to confirm the exhibits affirmatively; however, the primary handler in this case, the Investigating Officer (SP6), blatantly failed this test when he admitted under oath to having no knowledge regarding the whereabouts of the 25 kilograms of the analysed remaining samples.

Since this massive and unexplained disappearance rightfully prompted the Defence to challenge the identity and integrity of the exhibits vigorously, the strict legal threshold established by the Federal Court in Sia Pang Liong (supra) is automatically triggered. Under the Sia Pang Liong principle, once such a challenge is mounted, the prosecution bears the heavy burden of proving beyond a reasonable doubt that there are no gaps in the chain of evidence, a burden the Prosecution miserably failed to discharge, thereby irreparably severing the chain of custody and rendering the convictions inherently unsafe.

In the trial records, the Prosecution relied on Loh Kah Loon v. PP [2011] 4 MLJ 260 to argue that physical discrepancies or changes in the exhibits over time do not break the chain of evidence, so long as the court is satisfied that they are the same exhibits recovered, sent to the chemist, and produced in court.

This Court finds the Prosecution's reliance on Loh Kah Loon to be fundamentally misconceived. The factual matrix of that case is entirely distinguishable from the glaring anomalies present in this appeal. In Loh Kah Loon (as well as in Hasbala Mohd Sarong), the appellate courts upheld the convictions because the discrepancies involved only differences in the weight of the drug exhibits due to environmental factors.

Crucially, in those cases, the movement of the exhibits was clearly explained, and there was no break in the chain of evidence. In stark contrast, the present case does not merely involve a discrepancy in weight or the natural decomposition of perishable leaves. It involves the total, unexplained disappearance of approximately 25 kilograms of the remaining analysed samples. The Chemist (SP2) testified that these representative samples were extracted for analysis but were never returned to the police.

Most fatally, the Investigating Officer (SP6) admitted during cross-examination that he had no knowledge of the whereabouts of this massive quantity of analysed evidence. The legal principle in Gunalan Ramachandran (supra) cannot be used as a shield to excuse the actual loss of 25 kilograms of physical evidence. Since the Prosecution failed to offer any explanation for this disappearance, a massive, unbridgeable gap exists in the chain of custody.

The prosecution's case is further crippled by the failure to call the storekeeper (Penjaga Stor) to testify. Given that the physical condition of the exhibits had drastically degraded from fresh green leaves to unrecognisable, dry, rotten clumps, and those 25 kilograms of the analysed samples had inexplicably vanished, the movement and storage conditions of these exhibits were highly material facts.

As correctly submitted by the Appellants, citing the High Court decision in PP lwn. Selvaraj Saravanan [2024] CLJU 1213, the failure of the prosecution to call the storekeeper to explain the registration, movement, and storage conditions of the exhibits when their integrity is severely challenged creates a massive lingering doubt. For this case, without the storekeeper's testimony, there is no affirmative evidence to dispel the probability that the exhibits were tampered with, mixed up, or compromised during the long gap between the analysis and the trial. This failure constitutes a fatal break in the chain of evidence.

Therefore, it is legally unsafe to conclude that the prosecution had affirmatively discharged its burden to prove the identity and integrity of the exhibits. ii. Discrepancies in Tagging and Seals 32. The Defence/ Appellants further submitted that the identity of the exhibits was irreparably compromised due to severe discrepancies in the physical tagging and seals. The Appellants highlighted that during the trial, the vast majority of the 25 gunny sacks (E1 to E25) presented in court lacked the required PDRM seals (Seal 536), the Chemistry Department's lab stickers (Makmal No. 20-FR-K-02551), and the Investigating Officer's name and report number. Consequently, the Defence argued that the key handlers, namely SP2 and SP6, failed to identify the exhibits in court positively.

The Prosecution countered this by relying on the general principle that minor discrepancies or faded markings over time should not defeat the prosecution's case, provided the handlers can still confirm the exhibits based on remaining signatures or photographs taken during the initial investigation.

It is a trite principle of law that the physical identification of exhibits in court is not a mere procedural formality; it goes to the very root of establishing the identity and integrity of the contraband. Upon a maximum evaluation of the trial transcripts, this Court finds that the prosecution’s key witnesses miserably failed to identify the physical exhibits tendered before the learned Magistrate positively.

During cross-examination, the Chemist (SP2) conceded that multiple gunny sacks, specifically E16 to E25, completely lacked the required PDRM seals when tendered in court. Furthermore, SP2 admitted that the crucial Chemistry Department lab stickers, which bear the specific Makmal registration number linking the physical drugs to her chemical report, were missing from numerous exhibits, including E22. More fatally, the Investigating Officer (SP6) made a glaring admission that eviscerates the prosecution's case. SP6 testified during examination-in-chief that he had placed his name, the police report number, and PDRM Seal 536 on all 25 gunny sacks.

However, when challenged during cross-examination to physically point out these markings to the Court, SP6 made a glaring admission that eviscerates the prosecution's case. SP6 openly admitted that he could only locate his tagging, signature, and the police report number on a single sack, Exhibit "E4". For the remaining 24 sacks, the markings were simply missing or completely unidentifiable.

Consequently, SP6 explicitly agreed with the Defence's suggestion that his positive visual identification during examination-in-chief was solely based on the single "E4" tagging, and he was entirely unable to affirmatively identify the vast majority of the physical exhibits tendered in court. The learned Magistrate erred in excusing these massive identification failures by merely attributing them to the passage of time. When the Investigating Officer himself cannot physically identify the exhibits he purportedly seized and tagged, the chain of evidence is irreparably broken.

This Court is guided by the High Court's recent pronouncement in PP lwn. Selvaraj Saravanan (supra), which held that when physical exhibits produced in court lack the specific markings, signatures, or seals supposedly placed on them by the handlers, it creates an unbridgeable gap and a reasonable doubt as to whether the drugs tendered are the exact same drugs seized from the accused.

Returning to the prosecution's heavy reliance on Adhy Tedjajadi (supra), the strict legal prerequisite of that case dictates that the handlers must "affirmatively confirm" the exhibits. It is factually impossible for the prosecution to invoke this principle when their own Investigating Officer (SP6) openly admitted under oath that he was unsure and could not positively identify 24 out of the 25 sacks of drugs in court.

When the failure to positively identify the exhibits due to missing tags and seals is coupled with the unexplained disappearance of the 25 kilograms of remaining sample, the continuity of the exhibits is completely shattered. The prosecution failed to establish the actus reus of the charge beyond a reasonable doubt, rendering the convictions highly unsafe.

The Defence also heavily attacked the Chemist (SP2), arguing her report was inconclusive because she did not determine the exact percentage/volume of the poison via Gas Chromatography-Mass Spectrometry (“GCMS”), but only the gross weight of the leaves.

The learned counsel for the Appellants vehemently attacked the integrity and findings of the Chemist (SP2), arguing that her chemical report (Exhibit P78) was inaccurate, inconclusive, and unsafe to rely upon. The core of the Appellant’s contention was that SP2 only determined the gross weight of the ketum leaves and failed to determine the exact percentage, volume, or weight of the actual poison Mitragynine extracted from the 238.9 kg of ketum leaves. Furthermore, the Appellants argued that testing the representative samples only once on the GCMS machine was procedurally inadequate and noncompliant with global standards. i. Qualitative vs Quantitative Analysis 43. During cross-examination, SP2 openly admitted that the GCMS test she utilised was purely a qualitative test designed to confirm the presence of Mitragynine, and that it could not calculate the exact percentage or volume of the poison.

SP2 further conceded that the weight she documented in her report was merely the weight of the leaves themselves, and not the actual weight of the Mitragynine contained within those leaves.

The Defence argued that this lack of quantitative analysis rendered the report inconclusive. However, in law, under Section 30(3) of the Act, the prosecution is not strictly required to prove the exact percentage or volume of the scheduled poison. As established in jurisprudence concerning possession of dangerous substances, the obligation of the prosecution is only to establish the existence and identity of the proscribed substance, not its specific qualities or volume percentage.

Therefore, SP2's reliance on a qualitative GCMS test, alongside the Van Urk colour test, is generally sufficient to establish the elementary nature of the drug. ii. The Legal Threshold for Chemist's Evidence 47. The learned Magistrate correctly identified the general legal threshold governing expert chemical evidence. In the Supreme Court decision of Munusamy Vengadasalam v. PP [1987] 1 CLJ 250, Mohamed Azmi SCJ ruled at p.496 (para. E-G) as follows: "We are therefore of the view, that in this type of cases where the opinion of the chemist is confined only to the elementary nature and identity of substance, the court is entitled to accept the opinion of the expert on its face value, unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion. So long as some credible evidence is given by the chemist to support his opinion, there is no necessity for him to go into details of what he did in the laboratory, step by step." [Emphasis added]

Hence, it is clear that where the opinion of the chemist is confined only to the elementary nature and identity of a substance, the court is entitled to accept the opinion of the expert on its face value. So long as credible evidence is given by the chemist, there is no necessity for them to go into details of what they did in the laboratory step by step.

Furthermore, as established by the Federal Court in Balachandran v. PP [2005] 1 CLJ 85 and Khoo Hi Chiang v. PP [1994] 2 CLJ 151, the evidence of a chemist analysing dangerous drugs is considered one of fact and not merely of opinion. Consequently, it is not controlled by Section 51 of the Evidence Act 1950, and their findings stand unless inherently incredible or rebutted by another expert. iii. The Deprivation of the Defence's Right to Rebut 50. While the Magistrate accurately cited the above principles, the learned Magistrate committed a grave error in failing to appreciate the practical application of this rule to the unique factual matrix of the present case. The legal privilege to accept a chemist's report at "face value" under Munusamy Vengadasalam (supra) is strictly caveated by the condition, "unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion".

In the present appeal, SP2 testified that she extracted approximately 10% of representative samples from the seized sacks, amounting to a massive 25 kilograms of physical evidence. However, as established earlier, the entire 25 kilograms of remaining samples vanished after analysis and were never returned to the Investigating Officer or produced in court.

Since this massive volume of representative samples inexplicably disappeared, the Defence was utterly deprived of their fundamental right to verify the exhibits independently or to call their own expert chemist to challenge SP2's single GCMS run and her weighing methodology.

The prosecution cannot hide behind the shield of Munusamy Vengadasalam (supra) while simultaneously losing the very physical evidence that the Defence would inherently need to mount a rebuttal.

Therefore, this Court finds that the disappearance of the 25 kilograms of samples not only severed the chain of evidence, but it also irreparably prejudiced the Defence's ability to challenge the chemical analysis. Consequently, the Magistrate's decision to blindly accept SP2's chemical report at face value, in circumstances where the Defence was physically prevented from testing the absent exhibits, constitutes a severe miscarriage of justice that compounds the unsafeness of the convictions. D. FAILURE TO PROPERLY EVALUATE THE DEFENCE &

At the defence stage, the Appellants testified that they had travelled to Pendang solely to collect two 'Wak Wak' birds and had no knowledge of the black plastic bags loaded into the rear of the shared vehicle.

The Prosecution submitted that this narrative was a mere bare denial and an afterthought, highlighting that the Appellants did not provide supporting evidence, such as calling the bird seller as a witness.

The Defence vehemently countered this, pointing out that the presence of the 'Wak Wak' birds had been put directly to the arresting officer (SP4) during cross-examination at the prosecution stage, and therefore could not legally be labelled a recent invention. They further argued that the Magistrate unlawfully shifted the burden of proof by demanding the Appellants to prove their innocence, rather than applying the standard in Mat v. PP [1963] 1 LNS 82; [1963] MLJ 263.

At the conclusion of the trial, Section 182A(1) of the Criminal Procedure Code imposes a mandatory duty on the Court to consider all the evidence adduced. The Appellants advanced a highly consistent defence, that is, SD2 asked SD1 to drive him to Kampung Kertau, Pendang, solely to collect two "Wak Wak" birds. They testified that while SD1 was praying, the black plastic bags were loaded into the rear of the shared vehicle without his knowledge.

This Court finds that the Magistrate committed a severe misdirection in law. The defence was neither a recent invention nor an afterthought. The trial record clearly shows that the presence of the "Wak Wak" birds and the box containing them was put directly to the arresting officer (SP4, Sjn Zamri) during his cross-examination at the prosecution stage.

As authoritatively held by the Court of Appeal in Megat Halim Megat Omar v. PP [2009] 1 CLJ 154, a defence that is put to the prosecution witnesses at an early stage during the prosecution's case cannot be legally dismissed as an afterthought or a recent invention. The Appellants consistently maintained that SP4 had actually seized the birds at the scene but inexplicably omitted them from the official Search List (Borang Bongkar P86). SP6's failure to investigate this specific claim further highlights the investigation's severe shortcomings.

Most critically, the learned Magistrate failed to properly apply the golden rule of evidence evaluation established in Mat v. PP (supra). The law dictates a strict, multi-step approach for Magistrates to follow at the conclusion of the defence stage. Even if a judge does not accept or entirely believe the accused's explanation, the judge must not immediately convict. Instead, the court is legally bound to ask the crucial secondary question: Does the explanation nevertheless raise a reasonable doubt as to his guilt? If the answer is in the affirmative, the accused is entitled to an acquittal.

This principle is anchored in the fundamental tenet of our criminal jurisprudence, as authoritatively enunciated by the Supreme Court in Mohamad Radhi bin Yaakob v. PP [1991] 3 MLJ 169; [1991] 1 LNS 103. There is no burden placed on the accused to prove his innocence. An accused person is presumed innocent until proven guilty, and to earn an acquittal, his duty is merely to cast a reasonable doubt on the prosecution's case.

In the present appeal, the learned Magistrate committed a fatal misdirection by failing to apply this exact secondary question. Instead of asking whether the "Wak Wak" bird narrative raised a reasonable doubt, the Magistrate summarily rejected it as a "bare denial" and an "afterthought" on the basis that the Appellants did not produce corroborative evidence, such as calling the bird seller as a witness or producing a police report regarding a wrongful arrest.

By hastily demanding independent confirmation and credible supporting witnesses from the defence to validate their story, the learned Magistrate unlawfully elevated the Appellants' evidential burden into a strict legal burden to prove their innocence affirmatively.

As wisely cautioned in PP v. Saimin & Ors [1971] 1 MLRH 91, the falsity or weakness of the defence's explanation does not relieve the prosecution from its ultimate duty of proving the prosecution's case beyond a reasonable doubt. The Appellant’s defence was not a mere "bare denial" plucked from thin air; it was a consistent narrative regarding their presence in the shared police vehicle, and the fact concerning the "Wak Wak" birds had already been put to the arresting officer (SP4) during cross-examination.

The legal framework governing this, as established in the case of Megat Halim Megat Omar v. PP (supra), dictates that while there is no burden on an accused person to prove their innocence, it is trite law that their defence should be put to the prosecution at an early stage. It is only when the defence fails to put its story to the prosecution witnesses that a trial court is justified in dismissing a particular line of defence as an afterthought. Because the narrative was introduced during the trial proper while the prosecution witnesses were giving evidence, the court is legally bound to consider it as a serious defence.

This requirement is grounded in the "rule of essential justice". As explained in authorities such as AEG Carapiet v. AY Derderian [1961] AIR Cal 359 and Chai Tee Keiong v. PP [2013] CLJU 975, cited by the Appellants, the necessity to cross-examine and put the defence's case across early is a sound rule of law that prevents surprise at trial and potential miscarriage of justice. It gives the prosecution fair notice of the actual case being made against them and provides the opposing party a legitimate opportunity to explain, clarify, or defend their own evidence.

Therefore, regarding the "Wak Wak" bird narrative that was put to SP4 during cross-examination, the trial court's duty is to weigh the defence together with the entirety of the evidence. Even if the Magistrate finds the defence's explanation to be weak, unconvincing, or does not fully believe it, the court is legally obligated to ask the crucial question under the golden rule from Mat v. PP (supra): Does this explanation nevertheless raise a reasonable doubt as to the guilt of the accused? Labelling the defence as a "bare denial" and outright dismissing it without answering this question constitutes a classic case of non-direction and an unfair criticism against the weight of the evidence.

By summarily dismissing their narrative without subjecting it to the strict legal test of whether it cast a reasonable doubt on the completeness of the police investigation and the prosecution's case as a whole, the Magistrate's evaluation of the defence was fundamentally flawed and inherently unsafe.

While the fatal break in the chain of evidence discussed above is sufficient to quash the convictions of both Appellants, this Court finds it necessary to highlight a separate, distinct misdirection by the learned Magistrate regarding SD1.

The learned Magistrate fundamentally erred by lumping both Appellants together and inferring joint custody and control over the drugs. The trial records clearly establish that the SD1 was merely a passenger in the vehicle driven by SD2. Furthermore, the vehicle itself was a shared official police SUV, not owned by either Appellant.

The 25 gunny sacks containing the contraband were sealed in opaque black plastic bags and located in the rear passenger and boot areas of the vehicle. The prosecution adduced no independent evidence, such as fingerprints, DNA, or incriminating statements, to establish a nexus between SD1 and those opaque bags.

As previously established in this judgment, relying on the strict threshold in Chan Pean Leon (supra), mere physical proximity to contraband does not in itself establish possession. There must be clear evidence of animus possidendi, the intention and power to deal with the items to the exclusion of others. A passenger merely sitting in a vehicle driven by another person does not automatically exercise power of disposal over items hidden in the back.

This principle was further fortified in Lee Sam Thye (supra), where the court held that it is highly dangerous to presume or infer custody or knowledge of things hidden inside a vehicle against a person who is merely a borrower or a passenger of that vehicle.

Hence, the Magistrate’s conclusion that it was "impossible" for SD1 not to have knowledge and control of the drugs merely because he was in the same vehicle is a severe misdirection in fact and law. The prosecution completely failed to prove the actus reus and mens rea of possession against SD1. His presence as a mere passenger cannot legally trigger the statutory presumptions under Section 30(4) of the Act. On this ground alone, the conviction against SD1 is wholly unsafe and must be set aside.

It is a trite principle of appellate jurisprudence that while an appellate court is slow to disturb the findings of fact made by a trial court, it is duty-bound to intervene when the trial judge has committed a clear error of law or failed to evaluate the evidence judicially.

For the reasons extensively discussed above, the prosecution failed to prove its case beyond a reasonable doubt.

The convictions are fatally flawed by a concatenation of errors: the failure to account for the substantial volume of missing physical exhibits, a glaringly incomplete police investigation, an erroneous conflation of actual and presumed possession within the context of a shared vehicle, and an unlawful shifting of the burden of proof at the defence stage.

Consequently, the convictions of both Appellants are legally and factually unsafe.

The appeals are accordingly allowed. The convictions and sentences imposed by the Magistrate's Court are hereby quashed and set aside. Dated: 21st May, 2026 -------------------------------------------------------------------- YA Dr. Hj. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR Table of Authorities Cases Adhy Tedjajadi v. PP [2015] MLJU 771 AEG Carapiet v. AY Derderian [1961] AIR Cal 359 Balachandran v. PP [2005] 1 CLJ 85 Chai Tee Keiong v. PP [2013] CLJU 975 Chan Pean Leon v. PP [1956] CLJU 17; [1956] 1 LNS 17; [1956] MLJ 237 Gunalan a/l Ramachandran & Ors v. PP [2004] 4 CLJ 551 Hasbala Mohd Sarong v. PP [2013] 6 MLRA 1; [2013] 6 MLJ 636; [2013] 6 CLJ 945; [2013] 6 AMR 324 Khoo Hi Chiang v. PP [1994] 2 CLJ 151 Mat v PP 1 [1963] 1 MLJ 263 Megat Halim Megat Omar v. PP [2009] 1 CLJ 154 Mohamad Hanafi Mohamad Hashim v. PP [2017] 2 MLRA 288 Mohamad Radhi Yaakob v. PP [1991] 3 MLJ 169; [1991] 1 LNS 103 Munusamy Vengadasalam v. PP [1987] 1 CLJ 250 PP lwn. Selvaraj Saravanan [2024] CLJU 1213 Seyedalireza Seyedhedayatollah Ehteshamiardestani v. PP [2014] 5 MLRA 705 Sia Pang Liong v. PP [2012] 9 CLJ 848