Mohd Izad Bin Matap v Pendakwa Raya (B-05(SH)-179-04/2025)

The Appellant was charged with trafficking in dangerous drugs, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”), punishable under section 39B(2) of the same Act. He faced two further charges for possession of dangerous drugs under section 12(2) of the DDA, punishable under section 39A(1) of the DDA thereof.

At the conclusion of the trial, the learned High Court Judge found the Appellant guilty on all charges. The Appellant was accordingly sentenced to life imprisonment and twelve strokes of whipping for the trafficking offence, and to three years’ imprisonment together with three strokes of whipping for each of the possession offences.

This appeal lies against both conviction and sentence.

The charge under section 39B(1)(a) DDA reads: “Bahawa kamu pada 19.7.2021, jam lebih kurang 1.30 pagi di hadapan Lot 3156, Kampung Sungai Saim, Rantau Panjang, dalam daerah Klang di dalam Negeri Selangor telah didapati mengedar dadah berbahaya iaitu sejumlah 282.52 gram Cannabis. Oleh itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”

The charges under section 12(2) DDA read: “Bahawa kamu pada 19.7.2021, jam lebih kurang 1.30 pagi di hadapan Lot 3156, Kampung Sungai Saim, Rantau Panjang, dalam daerah Klang di dalam Negeri Selangor telah didapati memiliki dadah berbahaya jenis Methamphetamine dengan berat bersih 14.41 gram. Oleh itu, kamu telah melakukan suatu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39A(1) Akta yang sama. And “Bahawa kamu pada 19.7.2021, jam lebih kurang 1.30 pagi di hadapan Lot 3156, Kampung Sungai Saim, Rantau Panjang, dalam daerah Klang di dalam Negeri Selangor telah didapati memiliki dadah berbahaya jenis Methamphetamine dengan berat bersih 9.37 gram. Oleh itu, kamu telah melakukan suatu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39A(1) Akta yang sama.”

On 19 July 2021 at about 12.30 a.m., SP2 received intelligence at IPD Klang Utara relating to suspected drug activities. Acting on the information, SP2 organised two raiding teams and led the first team. The target was described as a Malay male riding a Yamaha 125z motorcycle.

At approximately 1.10 a.m., SP2 and his team proceeded to a location near Lot 3156, Kampung Sungai Saim, Kampung Rantau Panjang, Klang. Upon arrival, surveillance was conducted for about 20 minutes. A male person subsequently arrived at the location. After a further five minutes of observation, SP2 noted that the individual, later identified in court as the accused/Appellant who was alone, seated on a Yamaha 125z motorcycle with its engine switched off, appearing waiting for someone, and carrying a dark blue backpack.

The raiding team then approached and apprehended the Appellant. Upon identifying himself as a police officer, SP2 directed the Appellant to produce his identification. The Appellant was identified as Mohd Izad bin Matap, a 25-year-old Malay male and a lorry driver residing in Puchong, Selangor. The Appellant was said to have appeared startled and fearful at the material time.

A search conducted on the Appellant led to the seizure of a backpack (P16). Inside the backpack was a black plastic bag (P10A) containing three compressed blocks of dried plant material wrapped in transparent plastic, five blue packets each containing red pills, and one transparent packet containing crystalline substance. These were suspected to be cannabis, yaba pills, and methamphetamine respectively.

The Appellant was arrested and, together with the seized items, brought to IPD Klang Utara. A police report was lodged (P13), and the Appellant as well as the items seized were handed over to the investigating officer, SP5. The motorcycle, its keys, road tax, and a sum of RM200 were also seized. Relevant documentation, including the search list and handover forms, was duly prepared.

The items seized were subsequently sent to the Department of Chemistry Malaysia on 29 July 2021.

Upon examination and analysis conducted, the chemist (SP1) confirmed that the seized substances comprised cannabis with a net weight of 282.52g, methamphetamine in pill form weighing 14.41g, and methamphetamine in crystalline form weighing 9.37g. The exhibits were later returned to SP5 together with the chemistry report (P12) and kept in safe custody.

At the close of the prosecution’s case, the learned High Court Judge was satisfied that the substances recovered were dangerous drugs within the meaning of section 2 of the DDA, as listed in the First Schedule. This was established through the unchallenged expert evidence of the chemist (SP1), whose qualifications and analysis were accepted by the Court. The chemist confirmed, by way of the chemistry report (P12), both the identity and quantity of the drugs seized.

On the issue of possession, custody and knowledge, the learned judge correctly directed himself to the well-established principles in Chan Pean Leon v Public Prosecutor [1956] MLJ 237, namely that possession comprises both a physical element (custody and control) and a mental element (knowledge coupled with animus possidendi).

Applying those principles to the facts, the Court found that the drugs were discovered in a backpack worn by the Appellant at the material time. This constituted direct evidence of custody and control. The surrounding circumstances including the fact that the Appellant was alone at the scene, under continuous observation, and in exclusive possession of the bag gave rise to a compelling inference of knowledge. The Court further drew support from appellate authority that such circumstances irresistibly point to possession and knowledge on the part of the Appellant.

The suggestion that another individual was involved, and that the arrest and seizure took place at a different location, was rejected. The learned High Court Judge accepted the evidence of SP2 as credible and reliable, noting that it was neither inherently improbable nor shaken in cross-examination. In line with established authority, there was no reason to disbelieve the testimony of a police witness in the absence of contradiction or improbability.

As regards trafficking, the learned High Court Judge found that the prosecution had adduced sufficient evidence to bring the conduct of the Appellant within the statutory definition of “trafficking” under section 2 of the DDA which includes acts of keeping and concealing. Given the substantial quantity of drugs recovered being 282.52g of cannabis and quantities of methamphetamine, the Court held that it was wholly inconsistent with personal consumption and gave rise to an irresistible inference of trafficking, in the absence of any plausible explanation from the Appellant.

In the premises, having subjected the prosecution’s evidence to a maximum evaluation, the learned High Court Judge held that the prosecution had established a prima facie case on all three charges. The Appellant was accordingly called upon to enter his defence.

The Appellant having been duly apprised of the three modes of giving evidence, elected to testify on oath. His defence was, in essence, a denial of knowledge and possession of the impugned drugs, coupled with a challenge to the prosecution’s account of the place and circumstances of arrest. He further called SD2 to support his defence.

The Appellant testified that on 19 July 2021, he rode on his motorcycle to one Norhisham bin Shaary’s (SD2) house for the sole purpose of collecting a lorry key, as DW2 was a lorry mechanic. Upon arrival, he entered the house and sat in the living room. He claimed that suddenly two men, who identified themselves as police officers, appeared at the front door of SD2’s house. When questioned about a bag, the Appellant denied any knowledge thereof and was immediately handcuffed. He maintained that the police subsequently entered a room and emerged with a bag and a plastic packet, the contents of which were unknown to him. He was thereafter arrested and taken to the police station.

SD2’s broadly corroborated the presence of the Appellant at his house, confirming that the premises at Lot 3156 was his rented home where he resided with his family. He testified that the Appellant arrived at about 1.30 a.m. to collect a lorry key and was seated in the living room. However, SD2 asserted that the police had already been inside the house prior to the Appellant’s arrival, having entered through the rear and allegedly conducted a search since about 9.00 p.m. According to SD2, the police then apprehended the Appellant, brought him into a room, and later emerged with a bag before arresting both of them.

The defence narrative thus departs materially from that of the prosecution in two critical aspects. First, it places the locus of arrest inside the house at Lot 3156, rather than at the roadside as alleged by the prosecution. Secondly, it attributes the discovery of the impugned drugs to a room within the premises, thereby disassociating the Appellant from custody and control of the bag in which the drugs were found.

The learned High Court Judge, having carefully scrutinised the evidence of the Appellant and his witness SD2, found their testimonies to be materially contradictory and inherently unreliable.

In particular, the Court noted stark inconsistencies between their respective accounts. The Appellant testified that the police arrived at the house only upon his arrival and entered through the front door. In contrast, SD2 asserted that the police had been present at the premise for some four hours prior to the Appellant’s arrival, had entered through the rear, and had conducted a search of the entire house. Similarly, while the Appellant maintained that the police entered a room and later emerged with a bag while he remained in the living room, SD2 claimed that the Appellant was brought into the room by the police before the bag was produced. These contradictions went to the core of the defence narrative.

The learned High Court Judge further characterised the defence as a recent fabrication. It was observed that the Appellant himself admitted that he did not know the raiding officer, SP2 or any member of the police team, thereby negating any plausible motive for the police to falsely implicate him. The Court also found it inherently improbable that the police, having allegedly searched the premises for several hours without success, would only discover the incriminating exhibits upon the arrival of the Appellant.

Significantly, the defence version that the arrest and seizure took place inside the house and not at the location asserted by the prosecution was never put to the material prosecution witnesses, in particular SP2. Nor were the other members of the raiding party called to support that version, despite being available. The Court, relying on established authority, held that such failure adversely affected the credibility of the defence and the weight to be accorded to it.

In the premises, the learned High Court Judge concluded that the defence advanced by the Appellant amounted to a bare denial and an afterthought, devoid of evidential support. It failed to raise any reasonable doubt in respect of the prosecution’s case. The Court reiterated that a “reasonable doubt” must be real and grounded in reason, and not fanciful or speculative. Accordingly, the Court held that the defence did not displace the prosecution’s case. On the totality of the evidence, the prosecution had proven its case beyond reasonable doubt. The Appellant was therefore found guilty and convicted on all charges.

Broadly, the Appellant advances the following principal grounds:

Misapprehension of the Defence Evidence [29] The Appellant argues that the learned High Court Judge erred in finding that his evidence was materially contradictory to that of SD2. It is argued that if properly analysed, the evidence of the Appellant and SD2 was consistent on the material aspects, namely that the arrest took place inside the house at Lot 3156 and that the impugned bag was not in the Appellant’s possession but was recovered from within the premises. Any discrepancies, if present, were immaterial and did not justify the wholesale rejection of the defence. [30] It is further contended that the learned High Court Judge imposed an unduly onerous burden on the defence by expecting a level of consistency akin to proof beyond reasonable doubt, whereas the Appellant was only required to raise a reasonable doubt.

Failure to Consider Material Evidence (D22) [31] A central plank of the Appellant’s case is that the learned High Court Judge failed to consider the statutory declaration (D22) of SD2, which materially supported the defence narrative. The Appellant submits that this omission amounted to a breach of section 182A of the Criminal Procedure Code, which mandates the court to consider all evidence at the close of the defence. Had D22 been properly evaluated, it is argued, the Court would have appreciated that the defence was not a recent fabrication but had been consistently advanced from an early stage. The failure to consider this evidence is said to constitute a serious misdirection warranting appellate interference.

Erroneous Findings on Credibility and Motive [32] The Appellant further challenges the learned High Court Judge’s finding that the police witnesses, particularly SP2, had no motive to falsely implicate him. It is contended that the evidence of SD2 (supported by D22) suggested that the police had pressured SD2 to summon the Appellant, thereby providing a plausible motive or reason for the Appellant’s arrest. This aspect, it is argued, was not adequately considered. [33] Further, the Appellant submits that the learned High Court Judge erred in treating police testimony as inherently reliable without subjecting it to maximum evaluation, contrary to established principles.

Improper Adverse Inference and Mischaracterisation of the Defence [34] The Appellant contends that the learned High Court Judge misdirected herself by drawing an adverse inference from the Appellant’s failure to produce his cautioned statement. It is argued that there is no legal obligation on an accused to adduce such evidence, and no adverse comment ought to have been made. [35] Relatedly, the Appellant disputes the characterisation of his defence as a “bare denial” or an “afterthought”. It is submitted that the defence had been put to the prosecution witnesses during cross-examination and was corroborated by SD2 and D22. As such, the learned judge’s conclusion in this regard is said to be erroneous and unsupported by the record.

Inherent Improbabilities and Weaknesses in the Prosecution’s Case [36] The Appellant further contends that the prosecution’s narrative, particularly the timeline given by SP2, was inherently implausible. It is argued that SP2’s account of receiving information, conducting a raid, and effecting arrest within a compressed timeframe is inconsistent and illogical. In contrast, the Appellant submits that the defence version that the police were already present at the premises, had arrested SD2 earlier, and subsequently procured the Appellant’s presence was more probable and consistent with the surrounding circumstances.

Failure to Produce Material Evidence and Adverse Inference [37] Finally, the Appellant argues that the prosecution’s failure to produce a material police report (Bukit Raja 5158/21) created a lacuna in the prosecution’s case. It is submitted that this omission warranted the drawing of an adverse inference under section 114(g) of the Evidence Act 1950, as the report could have corroborated the defence version. [38] In sum, the Appellant contends that the cumulative effect of these errors rendered the conviction unsafe. The defence, when properly considered, had raised a reasonable doubt, and the learned High Court Judge’s misdirections justify appellate intervention and the setting aside of the conviction. Our Findings [39] It is a settled principle that an appellate court does not readily interfere with findings of fact by a trial court unless such findings are shown to be plainly wrong or occasion a miscarriage of justice. The appellate function is not to substitute its own view merely because another view is possible, but to determine whether the conviction is safe. This approach has been consistently affirmed in authorities such as Dato’ Seri Anwar Ibrahim v PP & Another Appeal [2004] 3 CLJ 737 and Magendran Mohan v PP [2011] 1 CLJ 805, and more pointedly articulated in Mohd Johi bin Said & Anor v PP [2005] 1 CLJ 389 where the Court emphasised that the ultimate inquiry is whether the conviction can safely stand. [40] We have given anxious consideration to the totality of the evidence, the findings of the learned High Court Judge, the submissions of both parties, and the competing versions advanced by the prosecution and the defence. In doing so, we remind ourselves that the central question is whether the conviction is safe. [41] The appeal turns on a single determinative issue: whether learned High Court Judge erred in preferring the prosecution’s version over that of the defence. The competing narratives are stark. The prosecution’s case is that the Appellant was apprehended outside the premises, seated on his motorcycle, with a backpack on his body containing the impugned drugs. The defence case is that the Appellant was arrested inside the house and that the drugs were recovered from within the premises, thereby negating possession and knowledge. The resolution of this appeal turns on which of these competing versions is to be preferred.

Alleged Misapprehension of the Defence and Contradictions [42] The Appellant contends that the learned High Court Judge erred in finding material contradictions between his evidence and that of SD2. We are unable to agree. The contradictions identified by the learned High Court Judge were neither peripheral nor trivial. They went to the very substratum of the defence namely, the location of arrest, the presence of the police, and the manner in which the impugned bag was discovered. The Appellant’s version that the police arrived upon his entry into the house stands in stark contrast to SD2’s account that the police had been present for several hours and had conducted an extensive search. [43] More significantly, we find that the defence is irreconcilable with objective evidence. Apparently, SD2 had earlier pleaded guilty to a charge which expressly recorded that his arrest took place outside the premises, and not within the house. This admission directly contradicts the contents of his statutory declaration D22 which was dated 17 August 2023, 10 months before the first trial date (4 October 2024), which sought to place both the Appellant and the recovery of the drugs inside the house. [44] In these circumstances, we are satisfied that D22 is unsafe to be relied upon. It is internally inconsistent, contradicted by SD2’s own plea of guilt, and materially departs from his oral testimony in court. The learned High Court Judge was therefore fully justified in rejecting the defence version as unreliable. In our judgment, the inconsistency is fatal. It renders D22 unsafe to be relied upon. A document which is contradicted by its maker’s own plea of guilt cannot, without more, be elevated to the status of credible exculpatory evidence.

Alleged Failure to Consider D22 [45] The Appellant further argues that the learned High Court Judge failed to consider D22, thereby occasioning a misdirection under section 182A of the Criminal Procedure Code (“CPC”). [46] With respect, this contention is unsustainable. The record demonstrates that the learned judge was fully cognisant of D22 but declined to accord it weight in light of its inconsistencies and the surrounding evidence. That, in our view, was a conclusion well within her judicial discretion. [47] It bears emphasis that section 182A of the CPC requires the court to consider all evidence. The duty under section 182A CPC is to consider all evidence, not to accept all evidence. The learned High Court Judge had, in fact, evaluated D22 but rejected it for sound and cogent reasons. This is consistent with the principle articulated in Balachandran v PP [2005] 2 MLJ 301 and Looi Kow Chai v PP [2003] 2 MLJ 65 that all evidence must be subjected to maximum evaluation, but its acceptance depends on credibility and weight. [48] We find no non-direction, let alone a misdirection, in the learned High Court Judge’s treatment of D22. In light of the clear contradictions between D22, SD2’s oral testimony, and the objective evidence, including the charge to which SD2 pleaded guilty, we find no basis to interfere with Her Ladyship’s evaluation. It is trite that an appellate court does not lightly disturb findings of fact grounded in credibility unless they are plainly wrong. We find no such error has been demonstrated here.

Credibility of SP2 and Alleged Motive to Fabricate [49] The Appellant’s attempt to impugn the credibility of SP2 is equally unpersuasive. The suggestion that the police had orchestrated the Appellant’s presence at the scene through coercion of SD2 rests entirely on D22, which we have already found to be unreliable. Further we find the evidence of SP2 was consistent, cogent, and supported by contemporaneous conduct. The Appellant himself admitted that he did not know the raiding officers and had no reason to believe they would falsely implicate him. We are satisfied that the learned High Court Judge had properly subjected the prosecution’s evidence to maximum evaluation and was entitled to accept the testimony of SP2 as credible.

Alleged Misdirection on Adverse Inference and “Afterthought” [50] The Appellant argues that the learned High Court Judge erred in drawing an adverse inference from the failure to produce his cautioned statement and in characterising the defence as an afterthought. Even assuming that the learned High Court Judge’s observations in this regard were infelicitously expressed they do not affect the correctness of the ultimate finding. The rejection of the defence was grounded on its inherent inconsistencies and lack of credibility, not merely on the absence of corroborative evidence. [51] The Federal Court in Balachandran v PP (supra) reminds us that what is critical is whether at the end of the case, the evidence raises a reasonable doubt. Here, the defence plainly failed to do so. [52] In any event, the defence was not rejected merely because of the absence of a cautioned statement, but because it was contradicted by the objective facts and by the inconsistencies within the defence itself. We therefore find no miscarriage of justice arising from this complaint.

Alleged Improbabilities in the Prosecution’s Case [53] We also reject the contention that the prosecution’s timeline was inherently implausible. The explanation provided by SP2 that he received information, mobilised his team, and returned to the scene within a short distance is neither illogical nor improbable, particularly having regard to the proximity between the police station and the scene of the incident. On the contrary, it is the defence version that strains credulity. It is inherently unlikely that the police, having conducted a search for several hours without success, would await the Appellant’s arrival before discovering the incriminating exhibits.

Alleged Failure to Produce Material Evidence [54] The Appellant’s reliance on section 114(g) of the Evidence Act 1950 is misplaced. There is no evidence of deliberate suppression of material evidence by the prosecution. The omission to produce the police report in question does not, in the circumstances of this case, create any lacuna in the prosecution’s case nor does it warrant an adverse inference. [55] Ultimately, where the defence is internally inconsistent, contradicted by objective evidence and rests on unreliable documentary support, it cannot raise a reasonable doubt. [56] Having evaluated the evidence in its entirety, we are satisfied that the prosecution’s case was cogent and compelling. The material facts established are that the Appellant was found alone at the material time, with the backpack with him seated on his motorcycle outside the premises and the drugs were recovered from that backpack upon his arrest. These facts irresistibly establish custody, control, and knowledge. The quantity of the drugs further supports the inference of trafficking. Against this, the defence amounts to no more than a version that is internally inconsistent, contradicted by objective evidence, and unsupported by credible corroboration. Conclusion [57] In the final analysis, we are satisfied that the learned High Court Judge had conducted a careful and thorough evaluation of both the prosecution’s and the defence’s cases. No misdirection, non-direction, or error of principle has been shown and it is our finding that the Appellant’s conviction is safe. [58] Accordingly, the appeals are dismissed. The conviction and sentence imposed by the High Court are hereby affirmed. Dated: 6 April 2026 Sgd NOORIN BINTI BADARUDDIN Judge Court of Appeal Malaysia LIST OF COUNSELS:

Muhammad Amirrul Bin Jamaluddin;

Afifuddin Bin Ahmad Hafifi; and

Aina Melina Binti Johan Ariff Lim [Salehuddin Saidin & Assoc (Shah Alam)] Counsel for Respondent:

TPR Solehah Noratikah Binti Ismail [Attorney General’s Chamber]