Mohd Jurib Bin Mohamad Naib v Pendakwa Raya (K-05(H)-299-08/2023)

This is an appeal by the Appellant against his conviction and sentence imposed by the High Court at Sungai Petani in respect of charges under the Dangerous Drugs Act 1952 (“DDA”), including a principal charge under section 39B(1)(a) and ancillary charges under sections 12(2) and 39A(2).

The charges preferred against the Appellant are as follows: “Case No.: KB-45A-23-10/2020 Bahawa kamu pada 14 April 2020, jam lebih kurang 4.00 petang, di tepi jalan lampu isyarat Tawar, menghala ke Kuala Ketil, di dalam daerah Baling, di dalam negeri Kedah Darul Aman, telah didapati mengedar dadah berbahaya seberat 177.51gram Methamphetamine. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama. Case No.: KB-45-9-10/2020 Bahawa kamu pada 14 April 2020, jam lebih kurang 4.00 petang, di tepi jalan lampu isyarat Tawar, menghala ke Kuala Ketil, di dalam daerah Baling, di dalam negeri Kedah Darul Aman, telah didapati ada dalam kawalan kamu dadah berbahaya seberat 4.99 gram Methamphetamine. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 12(3) Akta yang sama. Case No.: KB-45-10-10/2020 Bahawa kamu pada 14 April 2020, jam lebih kurang 4.00 petang, di tepi jalan lampu isyarat Tawar, menghala ke Kuala Ketil, di dalam daerah Baling di dalam negeri Kedah Darul Aman, telah didapati ada dalam kawalan kamu dadah berbahaya seberat 0.38 gram (iaitu gabungan dadah Heroin seberat 0.02 gram dan Monoacetylmorphines seberat 0.36 gram). Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 12(3) Akta yang sama. Case No.: KB-45-8-04/2021 Bahawa kamu pada 14 April 2020, jam lebih kurang 4.00 petang, di tepi jalan lampu isyarat Tawar, menghala ke Kuala Ketil, di dalam daerah Baling di dalam negeri Kedah Darul Aman, telah didapati ada dalam kawalan kamu dadah berbahaya seberat 13.20 gram (iaitu gabungan dadah Heroin seberat 1.8 gram dan Monoacetylmorphines seberat 11.40 gram). Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39A(2) Akta yang sama.”

The High Court which tried this case convicted the Appellant on all the charges and imposed the following sentences: 4 i. In respect of case KB-45A-23-10/2020: imprisonment for life and 12 strokes of the cane; ii. In respect of case KB-45-9-10/2020: imprisonment for one year; iii. In respect of case KB-45-9-10/2020: imprisonment for four months; and iv. In respect of case KB-45-8-04/2021: imprisonment for six years and 10 strokes of the cane.

This appeal is confined solely to the charge of drug trafficking in case KB-45A-23-10/2020.

On the day of the incident, Inspector Seanhillary Miting Pakoi (SP5) and a team of seven officers were conducting surveillance operations in the areas of Malau and Tawar, Baling, Kedah. The team was travelling in three separate vehicles when SP5 observed a Honda Civic bearing registration number PEF 7078 approaching from the opposite direction. Finding the vehicle suspicious, SP5 instructed his team via walkie-talkie to make a U-turn and follow it.

As the police vehicles gave chase, the driver of the said car accelerated in an apparent attempt to evade surveillance. Upon 5 reaching a traffic-light-controlled junction, SP5 executed an interception manoeuvre by overtaking and blocking the front of the vehicle, while the remaining police vehicles boxed it in from the rear and side. The driver, later identified in court as the Appellant, appeared visibly anxious and was unable to escape.

SP5 approached the Appellant, identified himself as a police officer, and directed the Appellant to exit the vehicle. A body search was conducted but yielded no incriminating items. SP5 then proceeded to search the vehicle in the presence of the Appellant.

During the search, SP5 recovered a sling bag from the rear seat containing, inter alia, identification documents (belonging to the Appellant), cash, and several transparent plastic packets containing crystalline and powdery substances suspected to be methamphetamine and heroin. Further search of the vehicle revealed additional packages concealed in various parts of the car, including the engine compartment and the boot. These packages, wrapped in cloth, plastic, and newspaper, also contained substances suspected to be dangerous drugs.

All recovered items were seized, marked, and recorded in a search list before the Appellant was brought to the Baling District Police Headquarters. The Appellant and the seized exhibits remained in the custody of SP5 throughout. Subsequently, the exhibits and the Appellant were handed over to the Investigating Officer, Inspector Muhammad Syihabuddin 6 bin Suble (SP8), as corroborated by the relevant handing-over documentation.

The seized substances were sent for chemical analysis. The chemist (SP3) confirmed that the packages contained, inter alia, significant quantities of methamphetamine, heroin, and monoacetylmorphine, all of which are classified as dangerous drugs under the DDA.

Investigations further established that although the vehicle was registered in the name of the Appellant’s younger brother (SP10), the Appellant was the actual purchaser, payer of instalments, and sole user of the vehicle from the time of purchase until its seizure.

Forensic investigations were also conducted. Fingerprints and swabs were lifted from the vehicle and one of the drug packages. Blood samples were taken from the Appellant and submitted for DNA analysis. The forensic chemist (SP4) confirmed the receipt and analysis of these exhibits, with the findings recorded in the DNA report.

All exhibits were duly preserved and managed in accordance with police procedures, including storage under the custody of the exhibits officer.

The learned High Court Judge, upon a maximum evaluation of the evidence at the close of the prosecution’s case, found that the prosecution had successfully established a prima facie case against the Appellant on all charges.

The Court proceeded to analyse the case by focusing on the essential elements required to prove the offences, namely, identity of the drugs, custody, care and control (possession), knowledge, and trafficking (for the s.39B charge).

As to the identity of the drugs the Court accepted the chemist evidence which confirmed that the substances seized were methamphetamine, heroin and monoacetylmorphine, all of which fall within the First Schedule of the DDA.

The learned High Court Judge was satisfied that the nature and weight of the drugs as particularised in the charges were proven through the chemist report and supporting testimony.

As to the chain of evidence, a critical preliminary finding by the Court was that the chain of custody was intact and unbroken. The Court meticulously traced the movement of the exhibits from seizure by SP5 at the scene, to handover to the Investigating Officer (SP8), subsequent delivery to the Chemistry Department and eventual storage in the police exhibits store. Each stage was supported by documentation, 8 markings, and corroborative testimony. The Court therefore held that the exhibits produced in court were the very same items seized from the Appellant.

In regards to the credibility of prosecution witnesses, the defence challenged the credibility of SP5. However, the Court rejected this contention and held that SP5 was a credible and reliable witness. The alleged inconsistency regarding prior information was found to be minor and inconsequential, amounting at most to an omission rather than a contradiction. Relying on established authorities, the Court held that such minor discrepancies do not undermine the overall credibility of a witness. Accordingly, the Court accepted SP5’s evidence that the drugs were recovered from the vehicle driven by the Appellant.

The Court correctly directed itself on the law that possession comprises both physical and mental elements, namely, custody and control, and knowledge of the nature of the drugs.

The Court found that the Appellant had exclusive possession and control of the vehicle, which was used solely by him despite being registered in his brother’s name.

The drugs were recovered from various parts of the vehicle, including concealed compartments. In light of the Appellant’s dominion over the vehicle, the Court inferred that he had custody and control over the drugs found therein. The Court 9 held that knowledge may be inferred from surrounding circumstances, as direct evidence is seldom available. Relevant circumstances including the Appellant’s conduct in attempting to evade the police, the quantity and manner of concealment of the drugs, and the exclusive use of the vehicle by the Appellant irresistibly pointed to the Appellant’s knowledge of the drugs and their nature.

For the principal charge under s.39B of the DDA, the Court found that the prosecution had established trafficking by way of transportation, which falls within the statutory definition of trafficking under s.2 of the DDA. The Appellant was apprehended while driving the vehicle containing a substantial quantity of drugs. The act of transporting such drugs was sufficient to constitute trafficking and there was no credible evidence to rebut it.

The defence advanced by the Appellant was, in essence, one of total denial coupled with an alternative explanation. The Appellant asserted that the drugs did not belong to him but to one “Lan Viva”, who had allegedly borrowed his car between 12.00 pm and 12.30 pm on the day of the incident. During this period, Lan Viva purportedly had the opportunity to place the drugs in the vehicle. The Appellant maintained that he had no knowledge whatsoever of the presence or nature of the drugs found in the car.

The Appellant contended that his DNA was found on the exhibits because he had been forced by the police to handle the seized items at the police station.

Notwithstanding the above, the Appellant made several material admissions. He admitted that the vehicle, the backpack, the towel used to wrap some of the drugs belonged to him. The Appellant admitted that he was a drug addict, and some drugs in the backpack were for his own consumption.

It was further revealed during cross-examination that the Appellant did not inform the police or the Investigating Officer at the earliest opportunity about Lan Viva’s alleged involvement.

The learned High Court Judge rejected the defence in its entirety, finding it to be untenable, illogical and an afterthought, for the following reasons:

Failure to Put the Defence at the Earliest Opportunity [29] The Court held that the Appellant’s failure to raise the involvement of Lan Viva during the prosecution’s case or at the earliest opportunity was fatal to his credibility. Relying on established principles, the Court emphasised that a defence must be put to prosecution witnesses in cross-examination, failing which it may be treated as an afterthought or abandonment of that defence.

Implausibility and Lack of Logic [30] The learned High Court Judge found the Appellant’s narrative involving Lan Viva to be inherently improbable. According to Her Ladyship, there was no logical explanation why Lan Viva would plant drugs in the car yet fail to retrieve them during a subsequent meeting the same day. The alleged second meeting between the Appellant and Lan Viva was brief and unexplained in purpose. These inconsistencies rendered the defence wholly unbelievable.

Exclusive Possession and Control of the Vehicle [31] The Court noted that, apart from the brief alleged loan of the vehicle, the Appellant had exclusive custody and control of the car. The suggestion that this brief period enabled Lan Viva to plant the drugs was found to be speculative and unsupported by credible evidence.

Incriminating Admissions [32] The Appellant’s own admissions significantly undermined his defence, namely, ownership of the bag and towel used to conceal the drugs and the acknowledgment that some drugs were for his own consumption. According to the learned High Court Judge, these admissions were inconsistent with his denial of knowledge and further weakened his case.

DNA Evidence – Rejected Explanation [33] The Court rejected the Appellant’s explanation for the presence of his DNA on the exhibits. The learned High Court Judge found it inherently improbable that the police would require the Appellant to handle the seized drugs in the absence of any motive to fabricate evidence, particularly where there was no evidence of ill-will or animosity between the police and the Appellant. [34] Having evaluated the defence against the totality of the prosecution’s evidence, the learned High Court Judge found that the defence was riddled with inconsistencies, lacked credibility, and amounted to a mere fabrication and afterthought. [35] The learned High Court Judge ultimately held that the Appellant had failed to raise any reasonable doubt in the prosecution’s case. Accordingly, the defence was rejected in toto, and the Appellant was convicted on all charges. Issues Raised by the Appellant [36] The Appellant’s appeal can be distilled into the following complaints: Issue 1: Whether the police had prior knowledge or it was a random inspection [37] It is the Appellant’s contention that the police already had prior information regarding the car (PEF 7078), as shown in the Record of Appeal (Vol. 2(1), pp. 41–43). Evidence indicates the car was specifically targeted and not randomly stopped. The police themselves stated that the vehicle was suspicious because they had prior information about it. The Appellant argues that this prior knowledge influenced the learned High Court Judge’s findings, thereby affecting objectivity. The Appellant contends that the learned High Court Judge’s evaluation was not neutral or independent and that there was a failure to assess the evidence objectively, leading to an incorrect conclusion. Issue 2: Whether the trial court’s findings were supported by evidence or based on wrong inference [38] The Appellant challenges several key findings of the High Court as follows:

Finding on custody and control of the car [39] The learned High Court Judge held that the car belonged to the accused and was under his custody and control and as such the burden shifted to the Appellant to show third-party access. The Appellant argues that this is legally erroneous, especially in cases involving tip-off information.

(ii) Improper shifting of burden of proof [40] Relying on authorities such as Ibrahim Muhamad & Anor v PP [2011] 4 CLJ 113 and Abdullah Zawawi bin Yusoff v PP [1993] 4 CLJ 1 the Appellant argues that where the police act on a tip-off, the burden lies on the prosecution, not the defence. It is further argued that the prosecution must exclude the possibility of third-party access but however, the trial judge held that it is the Appellant who must prove that a third party had access to the car. It is contended that this amounts to a serious misdirection, as it shifts the legal burden improperly and causes serious miscarriage of justice

(iii) Failure to properly consider the defence (Lan Viva defence) [41] It was the defence case that a third party (“Lan Viva”) had borrowed the car and could have planted the drugs. The Appellant argues that the learned High Court Judge failed to properly evaluate this defence and the defence was dismissed without adequate consideration. It is argued that the court instead focused on alleged inconsistencies and made a finding that the defence was illogical and unbelievable. The Appellant contends that this approach ignored a material defence and that the defence was not assessed in line with established legal principles.

(iv) Failure of the prosecution to exclude third-party access [42] Based on Abdullah Zawawi bin Yusoff v PP (supra) the Appellant argues that in tip-off cases, prosecution must negate third-party access which the prosecution failed to do so. It is argued that no sufficient investigation or evidence was conducted to exclude the possibility that another person had access to the car and that the drugs could have been planted. Our Findings [43] Having considered the Record of Appeal, the learned High Court Judge’s judgment, the submissions of counsels, we now set out our findings. [44] At the outset, it bears emphasis that this Court, sitting as an appellate tribunal, will not lightly interfere with findings of fact by a trial court unless it is shown that such findings are plainly wrong, unsupported by evidence, or occasion a miscarriage of justice. Upon our review, we find no such appellate error.

Whether there was any misdirection on the burden of proof [45] The gravamen of the Appellant’s complaint is that the learned High Court Judge had impermissibly shifted the burden onto the Appellant to exclude third-party access to the drugs found in the vehicle. With respect, we find this contention to be wholly without merit. [46] The Respondent, through cogent evidence, had established that the motor vehicle in question, although registered in the name of SP10 (the Appellant’s brother), was at all material times in the possession, use, and control of the Appellant. SP10’s evidence was clear, consistent, and unshaken in cross-examination that the vehicle was purchased and paid for by the Appellant. The registration in SP10’s name was merely a formality due to the Appellant being blacklisted and the vehicle was exclusively used by the Appellant from the time of purchase until the date of arrest. This evidence, in our judgment, firmly establishes dominion and control on the part of the Appellant. [47] Further, the Appellant was apprehended alone in the vehicle. The drugs were discovered concealed in multiple compartments of the car, including areas requiring deliberate and sustained access. The forensic evidence, including the presence of the Appellant’s DNA on key exhibits, further reinforced the inference that he had handled and was aware of the drugs. [48] In these circumstances, the Respondent had clearly discharged its burden of proving custody, control, and knowledge. The inference of possession was properly drawn by the learned High Court Judge. What followed thereafter was not a reversal of the legal burden, but the operation of well-established principles of evidence i.e. once possession is established, it is incumbent upon the accused to offer a plausible explanation to rebut the inference arising therefrom.

The “Lan Viva” defence and alleged third-party access [49] The Appellant’s reliance on the alleged involvement of one “Lan Viva” does not avail him. As rightly submitted by the Respondent, this defence was never put to the prosecution witnesses at the earliest opportunity. It surfaced only after the close of the prosecution’s case. This omission is fatal and renders the defence an afterthought. More critically, the prosecution was thereby deprived of any opportunity to investigate or verify the existence and involvement of this alleged individual. [50] On the totality of the evidence, we agree with the learned High Court Judge that the “Lan Viva” narrative is inherently implausible and unsupported by any credible evidence. It is trite that a bare assertion, devoid of particulars and raised belatedly, cannot displace a strong prima facie case. In contrast, the Respondent’s case was supported by direct evidence of possession and control of the vehicle, forensic linkage through DNA evidence, the manner of concealment of the drugs and the conduct of the Appellant in attempting to evade the police, which is admissible as conduct under section 8 of the Evidence Act 1950. These factors, when taken cumulatively, lead to an irresistible inference of knowledge and possession.

Whether the prosecution failed to exclude third-party access [51] We are unable to accept the Appellant’s submission that the prosecution was required, in the present circumstances, to negate all possibilities of third-party access. The facts of this case are materially distinguishable from cases where access to the premises or object is shared or uncertain. Here, the evidence demonstrates exclusive possession and control of the vehicle by the Appellant. The drugs were not found in an open or commonly accessible place, but were instead hidden in various concealed compartments within the vehicle, some of which bore the Appellant’s DNA. In such circumstances, the law does not require the prosecution to embark on speculative inquiries to exclude every conceivable third-party hypothesis. The evidential burden shifts to the Appellant to raise a reasonable doubt, which he has plainly failed to do.

Possession, knowledge, and trafficking [52] We further agree with the Respondent’s submissions that the elements of possession, namely custody, control, and knowledge were proven beyond reasonable doubt. The surrounding circumstances, including the Appellant’s exclusive use of the vehicle, the recovery of drugs from locations intimately connected to the Appellant, the presence of his personal belongings together with the drugs and the forensic evidence linking him to the exhibits, amply justify the inference that the Appellant had knowledge of the nature of the drugs. [53] As for trafficking, the quantity of drugs recovered particularly 177.51 grammes of methamphetamine is far in excess of personal consumption. The learned High Court Judge was therefore correct in invoking the definition under section 2 of the DDA and in concluding that the Appellant was transporting the drugs for the purpose of trafficking. There is no requirement in law for an additional “overt act” beyond the act of transportation itself in such circumstances.

Evaluation of the defence [54] We find that the Appellant’s defence, when weighed against the prosecution’s case, was rightly rejected as a mere denial and a fabrication. The learned High Court Judge had undertaken a maximum evaluation of the evidence and gave cogent reasons for rejecting the defence. We find no basis to disturb those findings. It is settled law that a bare denial, unsupported by credible evidence, cannot raise a reasonable doubt in the face of a strong and consistent prosecution case. Conclusion [55] In the final analysis, we are satisfied that the Respondent had discharged its burden of proof beyond reasonable doubt. The learned High Court Judge had correctly directed herself on the law and facts. We find no misdirection, no improper shifting of the burden of proof, and no failure in the evaluation of the evidence by the learned High Court Judge. [56] Upon our review of the totality of the evidence and submissions, we find no appellate error on the part of the learned High Court Judge that warrants our intervention. The Respondent had established, through credible and cogent evidence, that the Appellant had exclusive possession, custody, and control of the vehicle and the drugs therein. The belated and unsubstantiated assertion of third-party involvement does not raise any reasonable doubt. We unanimously find the conviction, safe. The appeal is accordingly dismissed. Dated: 20 April 2026 Sgd NOORIN BINTI BADARUDDIN Judge Court of Appeal Malaysia LIST OF COUNSELS: Counsel for the Appelant : Awang Armadajaya Bin Awang Mahmud [Hasshahari & Partners (Shah Alam)] Counsel for the Respondent : TPR Atiqah Binti Abdul Karim Husaini [Attorney General’s Chamber]