Mohd Sah Bin Jainuddin v Pendakwa Raya (S-05(SH)-367-09/2023)

In this case, Mohd Sah Bin Jainuddin (the Appellant) was charged with trafficking 102.31 grams of methamphetamine, which is an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act). At the conclusion of the trial, the High Court found him guilty and sentenced him to life imprisonment and 12 strokes of whipping. This is now the appeal by the Appellant against the conviction and sentence.

The charge against the Appellant is as follows:- "Bahawa kamu pada 08 haribulan Julai 2021, jam lebih kurang 01:30 petang, bertempat di hadapan kedai Vape Shop, Batu 5, Jalan Apas, di dalam daerah Tawau, dalam Negeri Sabah, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 102.31 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama."

Inspector Mohd Firdaus bin Mohd Baharuddin (PW2) testified that on 08 July 2021, at about 11.30 am, he received information regarding a drug trafficking activity at the shop lot area at Batu 5, Jalan Apas, Tawau. He then assembled a team of seven (7) police personnel, and they left IPD Tawau at 1.00 pm. About 15 minutes later, they arrived at the shop lots at Batu 5, along Jalan Apas.

After observing the area for about 10 minutes, PW2 and his team saw a man in a suspicious manner with a sling bag (P13) on him wandering around in front of a shop.

PW2 and his team then approached the man. PW2 introduced himself as a police officer and showed him his authority card. The man attempted to flee but was arrested after a scuffle with the team of police personnel. PW2 then instructed L/Kpl Nasyrah to handcuff the man.

A body search was carried out on the man by PW2. In the sling bag (P13) carried by the man, PW2 found (1) one green plastic packet (P6) which contained three (3) transparent plastic packets (P7, P8, and P9) with crystalline substance suspected to be syabu.

The man was later identified as the Appellant. PW2 informed the Appellant of the reason for his arrest and seized the items as listed in the Borang Senarai Geledah (P15). The Appellant and the seized items were then taken to IPD Tawau. PW2 testified that he had custody of the seized items throughout the journey.

Upon arrival at IPD Tawau, PW2 examined the seized items and made markings using his initials thereon. He marked the sling bag (P13) as "MF", the green packet as "MF1", and the three (3) transparent plastic packets as "MF2", "MF3", and "MF4".

PW2 then lodged a police report (P14) at about 3.00 pm on the arrest of the Appellant and the seizure before handing them over to the Investigation Officer, Insp. Syed Muhammad Iqbal bin Syed Yassin (PW3). The handover of the seized items was recorded in the Borang Serah Terima Barang Kes (P16).

Upon receiving the seized items, PW3 placed his signature and also marked the sling bag, the green packet, and the three (3) transparent plastic packets. All of them were kept in a metal cabinet by PW3, to which only he had the key.

On 12 July 2021, at about 10 pm, PW2 was asked by PW3 to deliver an envelope marked "SI 1" with a PDRM 545 seal affixed by the latter, to Jabatan Kimia Malaysia in Kota Kinabalu. The next day, PW2 then handed over the envelope, together with a request for chemical analysis (P4(1-2)) to the chemist, Rita Tie Ung Ha (PW1), at the Jabatan Kimia Malaysia, Kota Kinabalu (Jabatan Kimia).

PW1 testified that she had received and examined the crystalline substance inside the said envelope and issued a receipt bearing a unique serial number, 21-FR-S01872 (P3) to PW2. PW2 testified that from the time he received the sealed and marked envelope from PW3, he had custody and care of it.

On 23 August 2021, PW2 collected three (3) copies of the chemist report (P11) by PW1 and the envelope marked as "Sl 1" with a unique serial number, 21-FR-S01872, from PW1.

Upon receiving the result from the Jabatan Kimia, the Appellant was charged as per the abovementioned charge in the High Court. Findings of the learned High Court Judge at the end of the Prosecution case

After citing the relevant authorities such as PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 2 MLRA 590; [2005] 6 MLJ 393; [2005] 6 AMR 203, Balachandran v PP [2005] 1 CLJ 85; [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1 AMR 321, and Looi Kow Chai & Anor V PP [2002] 2 MLRA 383; [2003] 2 MLJ 65; [2003] 1 CLJ 734; [2003] 2 AMR 89, the learned High Court Judge (HCJ) subjected the evidence of the prosecution to the maximum evaluation test. In this case, the prosecution elected to prove actual possession on the Appellant, which the learned HCJ found that the prosecution had successfully proved.

The learned HCJ accepted PW1's findings that were set out in the chemist's report, P11, which ascertained that there was a net weight of 102.31 grams of methamphetamine in the crystalline substance. She also stated that methamphetamine is a dangerous drug listed in the First Schedule of the Act. PW1's academic credentials and expertise, as well as her findings on the identity and weight of the drugs, were not challenged. She was also not cross-examined. Therefore, the learned HCJ accepted her findings as true.

The learned HCJ also found that the Appellant's complaint that "the markings on the plastic packages (P7, P8, and P9) were not done at the time of the arrest in front of him and the markings later made may very well be an afterthought" is speculative and without merit. There was no mix-up over the three (3) transparent plastic packets (P7, P8, and P9) when they were seized by PW2, who had custody and care of them until they were marked and handed over to PW3.

Since the prosecution's case against the Appellant was premised on actual possession, in which the prosecution had to establish custody and control, as well as knowledge of the drugs. It was the prosecution's case that the Appellant had custody, control, and knowledge of the drugs because he had on his person a sling bag (P13) with a green packet (P6) containing three (3) clear packets (P7, P8, and P9) of drugs. The prosecution contended that the Appellant was caught red-handed.

The Appellant raised various points to argue that the prosecution had failed to make out a prima facie case, which can be summarily dealt with as follows: a. Defence case put to the Prosecution Witnesses i. The defence disputed the prosecution's version of events. According to the defence, prior to the arrest, the Appellant received a call from a man known to him as Samoro. It was Samoro who asked him to collect his belongings from his friend, Wan, at Batu 5, Jalan Apas. The Appellant received a call from Wan at 1 pm, and Wan sent him the location spot by WhatsApp and a photo of Kedai Vape. Upon arriving at the meeting place, the Appellant saw Wan in a Nissan vehicle. ii. The Appellant entered the Nissan vehicle and saw Wan holding a sling bag (P13). PW2 and his team then arrived in a Toyota Vigo, which obstructed the Nissan vehicle. The Appellant exited the vehicle and was arrested at that time. The defence also put to PW2 that he had seized the Appellant's motorcycle, his wallet, and his handphone, a Vivo S1 Pro, which allegedly stored the phone numbers of Samoro and Wan. iii. The learned HCJ found that all these allegations alluded to a frame-up, and the defence was no more than avoiding any suggestion, and if the defence were to be raised when the Appellant took the stand, it would be a mere afterthought. The putting of the defence is not evidence. b) Whether Absence of Suspicious/Incriminating Conduct

The defence argued that there was no evidence or details of the Appellant's suspicious conduct and that the argument is unmeritorious.

(ii) The learned HCJ found that the Appellant's conduct in attempting to flee and the scuffle may be inferred as the Appellant had knowledge of the drugs. c) Absence of Fingerprints and Photographs

The learned HCJ found that the defence's argument that there were no fingerprints on any of the drug exhibits, and no photographs of the Appellant with the sling bag (P13), is unmeritorious as PW2 testified that he saw the Appellant wearing the sling bag (P13) where he discovered the crystalline substances, which was later found to be methamphetamine.

(ii) The learned HCJ also made findings that there is no issue of mistaken identity, as there was no other person around during the 10-minute observation.

The learned HCJ found that there was no reason to doubt PW2's direct evidence that the Appellant was wearing the sling bag (P13) and the drugs were found in the plastic packets (P7, P8, and P9), which were enclosed in a green packet (P6).

(ii) Furthermore, the Appellant and the prosecution witnesses (PW2 and PW3) had no prior connection before the arrest. There is no evidence suggesting that either witness had a motive to lie or falsely accuse the Appellant about the events surrounding the arrest, including the presence of a Nissan vehicle, a person named Wan, the seizure of the Appellant's phone, or the claim that the Appellant was alone with a sling bag (P13) and acting suspiciously. e) Statutory Caution

The learned HCJ found that since the drugs were discovered by PW2 in the sling bag (P13) without any statement from the Appellant, the case's outcome does not depend on whether a statutory caution was given. f) Adverse Inferences

The defence invited the court to draw adverse inferences under section 114 illustration (g) of the Evidence Act 1950 since "the prosecution did not call independent witnesses such as the owner or the workers of the shop lots in the area and people in the Grand Livina."

(ii) However, the learned HCJ found that there was no ground for such inferences, and that the prosecution has discretion to call only the necessary witnesses to prove key elements of the offence. In this case, a single witness was sufficient to establish the Appellant's possession of the sling bag (P13) containing the drugs. g) PW3's Lackadaisical Investigation

The Appellant claimed that PW3, the Investigation Officer, mishandled his duties, particularly regarding the alleged seizure of the Appellant's phone, which supposedly stored the phone numbers of Samoro and Wan. However, both PW2 and PW3 consistently testified that no phone was seized, and this was supported by PW2's police report (P14), the seizure list (P15), and the handover list (P16).

(ii) The learned HCJ found that there is no reason to doubt their evidence, and the defence's claims were mere assertions.

(iii) Regarding the absence of a sketch plan, the learned HCJ held that photographs of the arrest scene (P12(1-4)) were sufficient, and the location of the arrest was not disputed. PW3, who took the photos, was not even cross-examined about the scene.

Since the evidence was sufficient to prove actual possession to trigger the presumption of trafficking under section 37(da)(xvi) of the Act, it was for the Appellant to rebut the presumption of trafficking on a balance of probabilities. The Appellant was therefore called to enter his defence.

The Appellant elected to give evidence on oath as the sole witness for his defence.

The Appellant's version was that he received a call from Samoro, who asked him to collect his belongings from his friend Wan at Batu 5, Jalan Apas. The Appellant had known Samoro for approximately two (2) months as a customer prior to his arrest. At the meeting location of Kedai Vape, the Appellant saw Wan waving his hand in a Nissan Grand Livina vehicle.

The Appellant then entered into the Nissan vehicle. He testified that he saw Wan holding a sling bag (P13) and denied ownership of it. He believed that the sling bag (P13) belonged to Samoro.

PW2 and his team arrived in a Toyota Vigo car and came to the Nissan vehicle, and the Appellant was arrested on the spot. He denied having attempted to escape. The Appellant also testified that he did not see the police checking or examining the sling bag (P13). His motorcycle, wallet, and handphone were also seized. Findings of the learned High Court Judge at the end of the Trial

The learned HCJ did not find that the Appellant's narrative cast a reasonable doubt, more so as the Appellant regurgitated his version of events, which had been put to PW2 and PW3.

The Appellant's invitation to the court to draw adverse inferences from the absence of the vape shop owner as a witness when there is no evidence to suggest he was even at the crime scene at the material time, or the sketch plan, when there were photographs tendered of the crime scene and the place of arrest was not disputed - is unmeritorious.

On the issue of the statutory caution, the learned HCJ found that there was no confession, admission, or self-incriminating statement by the Appellant, and the drugs were discovered upon PW2's search of the sling bag (P13).

The Appellant claimed that individuals named Samoro and Wan were key to the Appellant's case. However, no details such as full names, addresses, or contact numbers were provided to assist the investigation. Although the Appellant alleged that their phone numbers were stored in his seized phone, both PW2 and PW3 consistently testified that there was no phone seized from him. The Appellant's claim of providing his phone password lacked credibility, especially since he never mentioned his own phone number or cross-examined PW3 on the matter. Contemporaneous documents such as the police report (P14, (1-2)), seizure list (P15) and the handover list (P16) show that no handphone was seized.

The learned HCJ further held that while the conduct of the Appellant in attempting to escape may not suffice, his other pre-arrest conduct, together with other incriminating facts, such as the Appellant wearing the sling bag (P13) containing the drugs, is considered suspicious. There was also no evidence to show that the Appellant had provided Samoro and Wan's phone numbers to PW3.

As a conclusion, the learned HCJ held that the Appellant had failed to rebut the presumption of trafficking on a balance of probabilities, or to cast a reasonable doubt on the prosecution's case in other material respects. Accordingly, the learned HCJ convicted the Appellant of the offence as charged and subsequently imposed a life sentence (30 years' imprisonment) for the offence committed. Additionally, the Appellant was ordered to undergo 12 strokes of whipping.

Aggrieved with the decision, the Appellant appeals to the Court of Appeal.

Despite 18 grounds of Appeal being enumerated by the Appellant in the Petition of Appeal, the written submission had canvassed the issues as follows: a. The learned HCJ erred both in fact and in law in finding that the Prosecution had established custody, control, and knowledge on the part of the Appellant beyond a reasonable doubt, premised solely on the conclusion that the Appellant was caught red-handed with the drugs in the sling bag (P13). b. The learned HCJ erred in concluding that the Prosecution had proven the Appellant's possession of the drugs beyond a reasonable doubt without making a specific and reasoned finding on the element of knowledge. c. The learned HCJ instead inferred possession solely from the alleged physical presence of the drugs in a sling bag (P13), alleged to be in the Appellant's possession. However, no evidence that the Appellant had actual knowledge of the presence or the nature of the drugs. d. The learned HCJ merely accepted that the Appellant was essentially caught red-handed, and relied on PW2's uncorroborated claim without addressing the absence of forensic evidence such as fingerprints and DNA. e. Nowhere in the Grounds of Judgment (GOJ) was there a specific inference drawn or finding made that the Appellant knew the contents of the bag. As such, the learned HCJ's failure to make a clear and reasoned finding on the element of knowledge amounts to a serious misdirection, rendering the conviction unsafe. f. The learned HCJ erred in law by concluding knowledge solely based on the Appellant being found with the sling bag (P13), without assessing the surrounding circumstances as required under the established legal principles in the case of PP v. Radzi bin Abu Bakar (supra). Our findings The learned HCJ erred both in fact and in law in finding that the Prosecution had established custody, control, and knowledge on the part of the Appellant beyond a reasonable doubt, premised solely on the conclusion that the Appellant was caught red-handed with the drugs in the sling bag (P13). The learned HCJ erred in concluding that the Prosecution had proven the Appellant's possession of the drugs beyond reasonable doubt without making a specific and reasoned finding on the element of knowledge. The learned HCJ instead inferred possession solely from the alleged physical presence of the drugs in a sling bag (P13) alleged to be in the Appellant's possession. However, no evidence that the Appellant had actual knowledge of the presence or the nature of the drugs. Nowhere in the Grounds of Judgment (GOJ) was there a specific inference drawn or finding made that the Appellant knew the contents of the bag. As such, the learned HCJ's failure to make a clear and reasoned finding on the element of knowledge amounts to a serious misdirection, rendering the conviction unsafe. The learned HCJ erred in law by concluding knowledge solely based on the Appellant being found with the sling bag (P13), without assessing the surrounding circumstances as required under the established legal principles in the case of PP v. Radzi bin Abu Bakar (supra).

We shall deal with these five (5) issues together as they are interrelated.

In the instant case, we find that the Arresting Officer (PW2) testified that he and his team had observed the Appellant in an area where they had information that drug-trafficking activities were being conducted. After observing the Appellant behaving suspiciously, PW2 and his team approached the Appellant and introduced themselves as police officers. The Appellant then attempted to flee, a scuffle ensued, and the Appellant was apprehended. An inspection of a sling bag (P13) that the Appellant was wearing contained within it a green plastic bag (P6). Three (3) clear plastic packets (P7, P8, and P9) containing substances later confirmed to be drugs were found inside a green plastic bag (P6). The sling bag (P13) containing the drugs in three (3) clear plastic packets (P7, P8, and P9) was in the custody and control of the Appellant when he was observed, approached, and subsequently arrested by the police.

Given the above, we find that the Appellant had custody and control of the drugs because he had on his person a sling bag (P13) containing the subject drugs.

A series of questions was put to PW2 to dispute the prosecution's version of events. According to the Appellant, he had, prior to his arrest, received a call from a man known to him as Samoro who asked him to collect his belongings from his friend Wan at Batu 5, Jalan Apas. The Appellant received a call from Wan at 1 pm, who then sent him the location spot by WhatsApp and a photograph of Kedai Vape. When the Appellant arrived at the meeting place, he saw Wan waving his hand by a Nissan vehicle.

The defence's case, as put to PW2, was that the Appellant entered the Nissan vehicle on Wan's request, and saw Wan holding a sling bag (P13). PW2's team then arrived in a Toyota Vigo car, which blocked the Nissan vehicle. It was put to PW2 that the Appellant came out of the Nissan vehicle upon seeing PW2's team's car and that the Appellant was arrested in the upshot.

It was also put to PW2 that he had seized the Appellant's motorcycle, his wallet (containing his identification card, bank card, and cash), as well as his Vivo S1 Pro, which allegedly stored the phone numbers of Samoro and Wan.

Having perused the evidence presented before the court, we are of the view that there is no evidence of motive or reason on the part of either PW2 or PW3 to falsely implicate the Appellant by perjuring themselves concerning the alleged presence of the Nissan vehicle and Wan when the Appellant was arrested, or whether the Appellant's hand phone was seized or for PW2 to falsely testify that the Appellant was alone with the sling bag (P13) on his person, when he was observed behaving suspiciously.

We find no reason to doubt PW2's direct evidence that the Appellant was wearing the sling bag (P13) and the drugs were found in the plastic packets (P7, P8, and P9), which were enclosed in a green plastic packet (P6).

We find that both PW2 and PW3 consistently testified that no phone was seized and this was supported by the testimony of PW2's police report [P14(1-2)] as well as the items seized being consistent with the seizure list (P15) and handover list (P16). Therefore, we see no reason to reject PW2's testimony on the events as they occurred.

We are in the agreement with the learned HCJ and further of the view that there was no discernible motive or reason for the police to wrongfully incriminate or frame the Appellant. Based on the evidence, we find that there was no evidence that there was any previous animosity or that the Appellant even knew PW2 or PW3.

Support may be found from Sri Ganesh a/l Jaya Balan v PP and other Appeals [2022] 2 CLJ 546; [2021] MLJU 2642; [2022] 2 MLRA 293, where my learned brother, Ravinthran N. Paramaguru JCA, in delivering the judgment of the Court of Appeal, held: - "Whilst we acknowledge that frame up of innocent citizens by the police cannot be discounted in some cases, the court must give weight to that defence only on credible evidence that suggests it and not on mere speculation; otherwise prosecution of criminal cases in this country would be frustrated at every turn (see PP v. Mohamed Ali [1962] 1 MLRH 79; [1962] 1 MLJ 257." (emphasis added)

While the defence did suggest or put questions to the prosecution witnesses as mentioned in paragraphs 36 to 38 above, which alluded to a frame-up, it is trite that the putting of questions to a witness does not constitute evidence in the absence of an admission. Here, the prosecution witnesses did not agree with the suggestion or the put questions.

In Mirza Murtala v. PP [2010] 1 MLRA 107; [2010] 5 MLJ 616; [2010] 4 CLJ 150, the Court of Appeal held: - "[18] ... trite principle of law that suggestions made to the prosecution's witnesses at the prosecution's stage by the defence are not evidence and remains mere suggestions."

Similarly, in Yu Jing v. PP [2017] CLJU 315; [2017] 1 LNS 315; [2017] MLRAU 138, Zabariah JCA (as Her Ladyship then was), in delivering the judgment of the Court of Appeal, held: "[57] ... What was put or suggested to the prosecution witnesses at the prosecution's stage, is not evidence of the facts stated at that stage."

In Emperor v. Karimuddi Sheikh AIR [1932] AIR Cal 373, it was held: "Mere suggestions by a pleader or advocate for the accused do not amount to evidence by the fact suggested, unless they are either partly or wholly accepted by the witness for the prosecution." (emphasis added)

Notwithstanding the sole evidence of PW2 on the facts of arrest and seizure, a plethora of cases are replete where the court is legally empowered to convict an accused person even without corroborations. (See: section 134 of the Evidence Act 1950).

The locus classicus on this point would be PP v Mohamad Ali [1962] 1 LNS 129; [1962] 1 MLRH 79, [1962] MLJ 257, where it was quoted in the Federal Court decision in the case of Yusri bin Pialmi v PP [2010] 6 CLJ 878; [2010] 1 MLRA 798; [2011] 4 MLJ 533, where it was held: [6] With respect to the learned counsel for the appellant we do not agree with him. We are of the view even without the calling or offering as witnesses from amongst the other members of the police raiding party, the prosecution's case is complete with the evidence of SP2. The learned trial judge and the majority of the Court of Appeal had found SP2 to be a witness of truth. SP2 was not an interested witness, but a police officer performing his duties. He had related what he actually saw and did on that day. SP2's evidence is credible and ought to be delivered. (emphasis added)

In the instant case, we find that the learned HCJ made a specific finding of fact of PW2's testimony when His Lordship said in his GOJ as follows: - "56. In the instant case, there was no other person around during the 10 minutes of police observation, and there is no issue of mistaken identity.

Evidence of PW2 and PW3

There is no reason to doubt PW2's direct evidence that the accused was wearing the sling bag P13 and the drugs were found in the plastic packets which were enclosed in a green packet.

Support may be found in Ramli Abd Rahman & Anor v. PP [2011] 1 LNS 1725 where the Court of Appeal held: "It is trite, and well established, that the evidence of police witnesses on any material fact in issue should not be dismissed, unless it borders on the incredible and ludicrous."

Further, the accused and prosecution witnesses did not know each other prior to the day of the arrest. There is no evidence of motive or reason on the part of either PW2 or PW3 to falsely implicate the accused by perjuring themselves concerning the alleged presence of the Nissan vehicle and Wan when the accused was arrested, or whether the accused's hand phone was seized. Or for PW2 to falsely testify that the accused was alone with the sling bag P13 on his person, when he was observed behaving suspiciously." (emphasis added)

Accordingly, we have no hesitation in concurring with the findings made by the learned HCJ.

Counsel for the Appellant submitted that the prosecution failed to prove knowledge of the contents of the sling bag (P13) on the part of his clients. Knowledge is the critical element in the offence of possession or trafficking of drugs, and it must be proved beyond a reasonable doubt. Proof of knowledge, as stated in the Federal Court case of Parlan bin Dadeh v PP [2008] 6 MLJ 19; [2019] 1 CLJ 717; [2008] 2 MLRA 763, is often a matter of inference from proven facts.

The Federal Court in the case of Parlan bin Dadeh (supra), explained the meaning of knowledge as follows: - [25] The law is clear and well settled. Proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can be drawn varies from case to case. It would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused has the necessary knowledge ...” (emphasis added)

In the instant case, the principal submission of counsel for the Appellant on the issue of knowledge is that it is insufficient to rely on evidence of a witness that the Appellant looked suspicious or acted in a suspicious manner in order to infer knowledge against the Appellant. There ought to be some positive conduct which the prosecution has failed to prove that such conduct of the Appellant so as to infer knowledge of the impugned drugs.

We find no merit in this ground of appeal for the following reasons. In the instant case, the learned HCJ has made a finding of fact that, based on PW2's direct evidence, he and his team observed the Appellant for approximately 10 minutes in the area where they had information regarding drug trafficking activities. After observing the Appellant, PW2 and his team approached the Appellant and introduced themselves as police officers. The Appellant then attempted to flee, a scuffle ensued, and the Appellant was apprehended.

An inspection of the sling bag (P13) that the Appellant was wearing contained a green plastic bag (P6) found to contain three (3) clear plastic packets (P7, P8, and P9) containing a substance later confirmed to be dangerous drugs.

The learned HCJ also considered that Appellant's conduct at the time of his arrest under section 8 of the Evidence Act 1950. He was described as appearing to behave in a suspicious manner prior to the arrest, attempted to flee, and was arrested after a scuffle when PW2 introduced himself as a police officer and produced his identity card.

We are mindful that this factor, taken alone, may be insufficient to justify an inference that the Appellant had knowledge of the content of the sling bag (P13). Even an innocent person might display a similar reaction when accosted and restrained by the police. However, when his conduct is considered cumulatively with his behaviour prior to his arrest - behaving in a suspicious manner, there is a credible basis for inferring that he had prior knowledge of the contents of the sling bag (P13).

On this issue of knowledge, the learned HCJ had made the following finding of facts in his GOJ when His Lordship said as follows: - "(b) Whether Absence of Suspicious/Incriminating Conduct

While the defence argued that there was no evidence or details of the accused's suspicious conduct, the argument is unmeritorious. It will be recalled that PW2 gave evidence that "dia berlegar-legar di hadapan kedai tanpa memasukinya, berdiri di kaki lima seolah-olah menunggu sesuatu/seseoran (sic),"and "(l)elaki itu seperti dalam keadaan gelisah."

Further, the accused's conduct in attempting to flee and the scuffle are facts from which knowledge of the drugs may be inferred, more so it was unsuccessfully put to PW2 that the accused did not try to run away.

While it may be argued that any attempt to escape may be due to innocuous reasons such as the approach of a number of policemen in plain clothes, that is for the accused to give evidence on.

In any event, there is separately the pre-arrest conduct of the accused which had to be taken into account, apart from the other salient evidence adduced at this stage." (emphasis added)

It is thus clear that the Appellant had actual possession of the subject drugs as he had control and custody of the sling bag (P13) in which the drugs were found, and actual knowledge may be inferred from his conduct, especially when he behaved suspiciously before the arrest and he tried to escape when the police appeared but was apprehended following a scuffle.

For the above reasons, there is no merit in the ground of appeal that there was no evidence or details of Appellant's suspicious conduct. The contention of the Appellant that the prosecution failed to prove that the Appellant had knowledge of the contents of the sling bag (P13) that he was carrying is untenable and devoid of merit. The learned HCJ merely accepted that the Appellant was essentially caught red-handed, and relied on PW2's uncorroborated claim without addressing the absence of forensic evidence such as fingerprints and DNA

The Appellant suggests that the drugs cannot in any way be attributed to him as neither his nor that of any other individual's fingerprints could be found on plastic packets (P7, P8, and P9).

We are of the considered view that the absence of the Appellant's fingerprints or DNA on any of the packages does not per se exculpate him. Such evidence is useful when identity is in doubt. Here, there is no doubt about the identity of the Appellant and the plastic packets (P7, P8, and P9) found in the sling bag (P13) carried by the Appellant.

As succinctly explained by Nordin Hassan JCA (now FCJ) in Mahendran Arivalan v. PP [2020] MLRAU 279; [2020] CLJU 1278; "... it is trite that forensic evidence including DNA or fingerprints only serves as corroborative evidence. It certainly assist(s) the prosecution to establish its case beyond reasonable doubt as required under the law. However, the absence of forensic evidence does not mean that the prosecution case must collapse if there are other cogent evidence to establish its case in particular direct evidence such as in the present case." (emphasis added)

In PP v. Mansor Bin Md Rashid & Anor [1996] 3 MLJ 560; [1996] 2 MLRA 35; [1997] 1 CLJ 233, 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 fingerprints 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 was evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumed little value or significance". (emphasis added)

We find that as the drugs were found in the sling bag (P13), which the Appellant was wearing at the time of being observed, approached and arrested, the lack of fingerprints is not fatal to the prosecution's case.

This fact can be gleaned from the direct evidence of PW2, who saw the Appellant wearing the sling bag (P13), and he had discovered and examined the contents, including the crystalline substances, which were analysed and found to be methamphetamine.

On this issue, the Appellant refers to the police report of PW2 (P14(1- 2)) and PW2's witness statement (WSPW2), where there is no mention of caution being administered by PW2.

The Appellant submits that this Honourable Court ought to consider the mandatory requirement on statutory caution under Section 37B(1)(b) of the Act, and failure to do so results in no act of trafficking being committed by the Appellant.

The Appellant then refer to the evidence given by PW2 in his witness statement (WSPW2) where he testified that: "Saya telah memperkenalkan diri sebagai pegawai kanan polis dengan menunjukkan kad kuasa kepada lelaki itu. Lelaki itu cuba untuk melarikan diri tetapi berjaya ditangkap setelah berlaku pergelutan dengan anggota saya. Saya telah arahkan L/Kpl Nasyrah untuk menggari lelaki tersebut.

According to the Appellant, the evidence of the alleged conduct of the accused is inadmissible. Thus, this Honourable Court ought to exclude such a statement as inadmissible.

The decision of the Federal Court in Ariff Arhannan Che Udin v. PP & Another Appeal [2022] 4 MLRA 172; [2022] 3 MLJ 157; [2022] 4 CLJ 1; [2022] 3 AMR 705 is instructive. The Appellant was stopped in his car by the raiding officer, SP6. A search revealed three (3) plastic packets of cannabis in the Appellant's trousers, for which he faced a charge of possession. SP6 was then led to the Appellant's house. There, the Appellant picked up a bag and handed it to SP6. In the bag were Appellant's personal documents and packages of cannabis (with a net weight of 721.26 grams) for which he faced a charge of trafficking. He was convicted on both counts.

In submissions before the Federal Court, the Appellant argued that the trial judge erred in admitting the evidence of the Appellant's conduct of picking up the bag containing the drugs and handing it to SP6. In elaboration, it was argued that no statutory caution had been administered prior to the handover of the bag, which was, in essence, a statement.

The Appellant's arguments did not find favour with the apex court. In delivering the judgment of the Federal Court, Abdul Rahman Sebli FCJ (as His Lordship then was) held: "The word "statement" in s 37B of the DDA must be confined to "something that is stated" or "written or oral communication" (Bhogilal Chunilal Pandya, Cormac McCarron, supra) and does not include conduct such as the act of the appellant in the present case of picking up the black bag containing the drug and handing it to SP6." (emphasis added)

It is thus clear that in the present case, the Appellant had actual possession of the subject drugs as he had control and custody of the sling bag (P13) in which the drugs were found, and actual knowledge may be inferred from his conduct, especially when the Appellant behave suspiciously before the arrest and he tried to escape when the police appeared but was apprehended following a scuffle.

The Appellant's conduct is not a statement, as made clear by the Federal Court in Ariff Arhannan Che Udin (supra). It is admissible under section 8(2) of the Evidence Act 1950 which provides: "The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto."

Based on the facts in the present case, we find that there was no confession, admission, or self-incriminating statement by the Appellant. The authorities relied upon by the Appellant are thus distinguishable.

Indeed, the drugs were found by PW2 in the sling bag (P13) without any statement by the Appellant. Hence, we are of the view that the outcome of the case does not turn on whether or not the statutory caution was administered.

The Appellant submitted that the prosecution did not call independent witnesses, such as the owner or the workers of the shop lots in the area, and there were complaints that PW3 only took four (4) photographs of the crime scene, while there was no sketch plan produced during the trial. Counsel for the Appellant therefore urged us to draw an adverse inference against the prosecution on the basis that potentially favourable evidence had been withheld.

It is trite law that an adverse inference may only be drawn under section 114 illustration (g) of the Evidence Act 1950 where there is suppression of not just any evidence, but material evidence. Thus, the element of suppression and materiality with regard to the evidence in question must be demonstrated. The principle is best explained in the following passage from the judgment of Mohd Azmi SCJ (as His Lordship then was) in Munusamy Vengadasalam v PP [1987] CLJ (Rep) 221; [1986] 1 MLRA 292; [1987] 1 MLJ 492. [2] ... It is essential to appreciate the scope of s.114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case". (emphasis added)

Based on the facts in the present case, we are of the considered view that the prosecution need not call all the witnesses, such as the vape shop owner who may or may not have been at the crime scene or who may not even have witnessed the Appellant's possession.

We find that the absence of the sketch plan is not fatal to the prosecution's case as the photographs of the crime scene had been tentered. Further, the place of arrest was not disputed.

Further, we find there is no basis for adverse inferences to be drawn, as there is prosecutorial discretion to call only such witnesses as may be necessary to prove the essential ingredients of the offence, and we find that there is no basis to say that there is suppression of evidence.

On this issue, we find that the learned HCJ dealt with in his GOJ in paragraphs 64 to 69, and based on the reasons given by the learned HCJ, we agree with his findings, and we see no misdirection on the part of the learned HCJ for failing to draw an adverse inference.

The Appellant contended that he had provided his handphone password and even informed PW3 regarding the details of Samoro's appearance, but there was no investigation done by PW3. The Appellant's handphone was not produced in court, nor were any forensic results tendered, and this had led to a miscarriage of justice.

To avoid any repetition, based on our earlier findings in paragraphs 39 to 43 and 62 to 67, we find that there is no merit in the Appellant's complaint about the PW3's lackadaisical investigation.

Further on this issue, we find that the learned HCJ had made the following findings of fact in his GOJ when His Lordship held as follows:- "70. As for the accused's contention that PW3 was found wanting in the execution of his duties as the Investigation Officer, the contention is equally without merit. It was put to PW2 and PW3 that the accused's hand phone - in which the phone numbers of Samoro and Wan had been stored - was seized.

However, PW2 and PW3 were steadfast that in their evidence that the accused's Vivo hand phone had neither been seized or handed over by PW2 to PW3. There was no reason to doubt their testimony. The put questions were mere assertions. Moreover, P14 (PW2's police report), P15 (the seizure list) and P16 (the handover list) comprising the contemporaneous documents are consistent with the prosecution's narrative that there was no hand phone seized from the accused.

The existence of Samoro and Wan may be said to be pivotal to the defence. Yet, apart from the physical appearance of Samoro, there was no meaningful information that could lead PW3 to these persons.

The full name, address or telephone number of either Samoro or Wan were not provided. Notably, the accused agreed "tiada apa-apa butiran contohnya nama penuh, no. telefon, alamat rumah atau keberadaan terkini telah dinyatakan di Mahkamah bagi penama "Samoro" dan "Wan" sepanjang bicara." See NOP, Q & A 160. While the accused went on to disagree that he had not furnished such information to the police, he did not proceed to disclose the specifics of the disclosed information to the court.

Even though Samoro and Wan's telephone numbers were alleged to have been stored in the accused's hand phone, there was no reason to suppose that the accused's hand phone had been seized. Learned counsel for the accused pointed out that PW2 did not say the accused signed P15, although a signature appears on top of his name. Equally, however, the accused did not deny he signed P15. At best, P15 is neutral as to whether the accused signed thereon.

Be that as it may, the contemporaneous documents such as the police report P14(1-2), seizure list P15 and the handover list P16 show that no handphone was seized.

On a related note, the accused testified that he gave his password (8552) to his hand phone to PW3, but such alleged disclosure was not put to PW3 nor was he was crossexamined on it.

Further, it is incredulous that the accused would mention his password number for access to his hand phone but failed to mention his own telephone number.

Furthermore, the testimony is also bereft of credibility as the disclosure of the password would be meaningless unless PW2 had seized the accused's handphone and PW3 had received the accused's handphone. As earlier explained, there was no reasonable doubt hanging over testimony of both PW2 and PW3, both of whom were unknown to the accused prior to his arrest and there was no discernible reason or motive to falsely implicate him.

Learned counsel for the accused also tried to suggest that the accused's identification card was seized by PW2 because, if it were not seized, how did the accused's identification number end up on PW2's police report PA14? It was argued that this was never explained by the accused.

Setting aside the possibility that PW2 had asked the accused who had arrested the same day, PW2 was never cross-examined or asked how he obtained the identification number of the accused which was recorded in P14(1-2) and was thus deprived of an opportunity to offer an explanation." (emphasis added)

We are in concurrence with the learned HCJ's findings. In the premises, we reiterate that this ground of appeal is wholly without merit, as we find that the issue was meticulously dealt with by the learned HCJ in his GOJ.

In conclusion, we find no merit in all the grounds raised before us during oral arguments, in the Memorandum of Appeal, and in the written submission.

To recapitulate, the HCJ correctly found that a prima facie case had been established and accordingly called for defence. The element of possession was satisfied by the fact that PW2 observed the Appellant in a suspicious manner. The Appellant had a sling bag (P13) on his person. The Appellant tried to escape when the police appeared, but was apprehended following a scuffle. An inference of knowledge of the drugs was therefore properly drawn. There was no break in the chain of evidence with respect to the drugs. The chemist's (PW1) expertise, which verified both the nature of the drugs and their weight, was not successfully impugned. The presumption of trafficking was not rebutted on a balance of probabilities when the Appellant gave evidence, and no reasonable doubt was raised in relation to the prosecution's case.

For the above reasons, we find the conviction is safe. In respect of the sentence, we note that the High Court imposed the minimum penalty, which is life imprisonment or 30 years' incarceration, together with 12 strokes of the whip, which we find reasonable and no reason to disturb. We therefore dismissed the appeal against conviction and sentence. The decision of the High Court is accordingly affirmed. Dated: 20 February 2026 Ahmad Kamal Bin Md Shahid Judge Court of Appeal Malaysia Counsel appearing: For the Appellant: Mr. Kamarudin Bin Mohmad Chinki (together with Mr. Prem Elmer) [Messrs Chang & Kamarudin] For the Respondent: Mr. Mohd Amril Bin Johari [Deputy Public Prosecutor, Attorney General's Chambers]