MUHAMAD SYAFIQ BIN KASIM v Pendakwa Raya (J-05(H)-577-11/2023)

The Appellant was charged before the High Court at Johor Bahru with two offences under the Dangerous Drugs Act 1952 (“DDA”), namely trafficking in dangerous drugs under section 39B of the DDA and possession of dangerous drugs under section 12 of the same Act. At the close of the prosecution’s case, the learned Judicial Commissioner (“the learned JC”) held that the prosecution had succeeded in establishing a prima facie case against the Appellant on both charges and accordingly called upon him to enter his defence.

In his defence, the Appellant elected to give evidence on oath and called two witnesses in support of his case. Upon the conclusion of the defence stage, the learned JC found that the Appellant had failed to raise a reasonable doubt in the prosecution’s case and had also failed to rebut the presumption of trafficking under section 37(da) of the DDA. The Appellant was therefore convicted on both charges. For the trafficking offence, the learned JC imposed a sentence of life imprisonment together with twelve (12) strokes of whipping. In respect of the possession offence, the Appellant was sentenced to three (3) years’ imprisonment and three (3) strokes of whipping.

The present appeal is directed against both the conviction and the sentences imposed by the High Court.

The charge of drug trafficking under section 39B of the DDA (the “Trafficking Charge”) reads: “Bahawa kamu pada 11/01/2018 jam lebih kurang 1900 hrs di tepi Jalan Bukit lmpian 8, Taman lmpian Emas Skudai Johor Bahru dalam Negeri Johor Darul Takzim telah didapati mengedar dadah berbahaya jenis Methamphetamine berat bersih 62.35 gram. Dengan itu kamu telah melakukan kesalahan dibawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen 39B(2) Akta yang sama.”

The charge of possession under section 12 of the DDA (the “Possession Charge”) reads: “Bahawa kamu pada 11/01/2018 jam lebih kurang 1900 hrs di tepi Jalan Bukit lmpian 8, Taman lmpian Emas Skudai dalam Negeri Johor Darul Takzim telah didapati memiliki dadah berbahaya jenis Heroin berat bersih 2.55 gram dengan itu kamu telah melakukan satu kesalahan dibawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen 39A(1) Akta yang sama.”

Acting on information relating to drug trafficking activities, at about 5.30 p.m. on 11 January 2018, Inspector Shahrul Rizal bin Abdul Kadir (SP2) together with members of a raiding team 5 proceeded to Jalan Setia Tropika 1/21, Taman Setia Tropika, near the KFC restaurant at Setia Tropika. Surveillance was conducted for approximately thirty minutes before a black Proton Perdana bearing registration number WLR 1888 (“the black Perdana”) arrived and stopped in front of the restaurant.

The raiding team then moved in to intercept the vehicle. Two raiding vehicles positioned themselves in front of and behind the black Perdana, while another vehicle approached from the side. When instructed by SP2 to exit the vehicle, the driver reacted aggressively and rammed the vehicle parked in front of him before speeding off in an attempt to escape. Two of the raiding vehicles immediately gave chase. The pursuit continued for about thirty minutes as the driver drove in a zig-zag manner before eventually stopping at Bukit Impian 8 in Taman Impian Emas. The driver then alighted from the vehicle and attempted to flee but was apprehended approximately fifty metres away after putting up resistance. He was later identified as the accused, Muhamad Shafiq bin Kasim.

A search conducted on the accused led to the discovery of a Coach crossbody bag containing several packets of substances suspected to be drugs, namely two packets of crystalline substances suspected to be syabu and two additional packets suspected to contain syabu and heroin. Also found in the bag were the accused’s identity card, a Legoland card bearing his name, a Louis Vuitton card holder and a digital weighing scale. A search of the black Perdana further revealed mixed cash amounting to RM80.00 and one Singapore fifty-dollar note.

The accused and the seized items were subsequently handed over to the Investigating Officer, Inspector Roslina binti Awang (SP7). The exhibits were later sent to the Chemistry Department for analysis. The Government Chemist, Puan Nur Hafiza Md Yusof (SP6), confirmed in her Chemistry Report (P17) that the substances seized were dangerous drugs, namely methamphetamine weighing 62.35 grams and heroin together with monoacetylmorphines weighing 2.55 grams.

The defence called three (3) witnesses, including the accused. The other two witnesses were the accused’s elder brothers. The accused denied that the drugs recovered by the police belonged to him.

The accused testified that on the day of the incident he had accompanied his friend, Sahrul, to the KFC restaurant at Setia Tropika to meet one of Sahrul’s acquaintances. He was driving a car belonging to his sister. Upon arriving at the location, his vehicle was suddenly blocked by two cars which approached closely. Sahrul then shouted “robbers” and instructed the accused to flee. Out of fear, the accused rammed the vehicles that had blocked his car and sped off, heading towards the highway. According to the accused, upon reaching Taman Impian Emas, the engine of his car began emitting smoke, 7 forcing him to stop the vehicle. He and Sahrul then exited the car and attempted to flee. The accused was subsequently apprehended by the police, while Sahrul managed to escape.

The accused maintained that no drugs were found in the cross-body bag that he was carrying at the material time. Instead, he alleged that the police had recovered drugs which had been discarded by Sahrul and had subsequently placed those drugs into his bag. He further alleged that he had been assaulted by the police and forced to disclose the address of his brother’s residence at Sky Gardens Residence. Following a search of the premises, several packets of drugs were allegedly discovered and, according to the accused, those drugs were also placed by the police into his crossbody bag.

In essence, the accused contended that the drugs found in the bag were not his but belonged to Sahrul and his brother. The accused also explained that this version of events had not earlier been disclosed to his counsel because he feared that his family members might be harassed. This, he said, explained why the matters raised in his defence were not put to the prosecution witnesses during cross-examination.

In determining whether a prima facie case had been established, the learned Judicial Commissioner (“the learned JC”) directed himself on the essential elements of the offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”). The prosecution was required to prove that the substance seized was a dangerous drug within the meaning of the First Schedule of the DDA, that the drugs were in the possession of the accused in the sense that they were within his custody, control and knowledge, and that the accused was trafficking in the drugs either by direct evidence or by operation of the statutory presumption under section 37(da) of the DDA.

On the nature and weight of the drugs, the learned JC found that the prosecution had established this element through the evidence of the Government Chemist, SP6, and the Chemistry Report (P17). The report confirmed that the substances seized were methamphetamine weighing 62.35 grams and heroin together with monoacetylmorphines weighing 2.55 grams. The learned JC held that the court was entitled to accept the chemist’s opinion in the absence of any credible challenge from the defence.

The learned JC was also satisfied that the chain of custody of the exhibits had been properly established. The drugs seized by SP2 were handed over to the investigating officer, SP7, and subsequently forwarded to the chemist for analysis. The exhibits were securely stored and later produced in court during the trial. The learned JC therefore rejected the defence contention that the chain of evidence had been compromised by the possibility of another raid conducted at a different location.

On the issue of possession, the learned JC referred to established authorities such as Chan Pean Leon v PP and Leow Nghee Lim v R and held that possession required proof of custody or control together with knowledge of the drugs. Applying these principles, the learned JC found that the crossbody bag containing the drugs was discovered on the person of the accused. The bag also contained the accused’s identity card and a digital weighing scale. The learned JC further held that the accused’s conduct in ramming the raiding vehicles, fleeing from the scene, and attempting to evade arrest before being apprehended after a struggle constituted relevant conduct which supported an inference that the accused had knowledge of the drugs.

The learned JC also rejected the defence submission that SP2 was not a credible witness. The learned JC found SP2 to be a credible and consistent witness and held that the fact that SP2 was unable to recall certain matters did not undermine his testimony in the absence of any inherent improbability.

In light of these findings, the learned JC concluded that the prosecution had established possession of the drugs. Given that the weight of methamphetamine exceeded the statutory threshold of 50 grams, the learned JC held that the presumption of trafficking under section 37(da)(xvi) of the DDA was engaged. Accordingly, the learned JC found that a prima facie case had been established and called upon the accused to enter his 10 defence pursuant to section 180(4) of the Criminal Procedure Code.

The learned JC rejected the defence contention that SP2 was not a credible witness or that the chain of custody of the exhibits had been broken. The learned JC was satisfied that SP2’s evidence remained credible and that there was no basis to conclude that the drugs recovered from the accused had been mixed with other exhibits allegedly seized from another location.

The learned JC further found that the defence version lacked credibility. The introduction of Sahrul as a material witness was not raised during the prosecution’s case and was therefore regarded as an afterthought. The learned JC also noted that the accused had failed to provide any meaningful particulars regarding Sahrul, the alleged Chinese woman, or “Man Cina”. In the learned JC’s view, the attempt to attribute ownership of the drugs to these individuals did not undermine the prosecution’s case.

The learned JC was also not persuaded by the allegation that the police had fabricated the case by placing the drugs into the accused’s bag. The allegation was a serious one and had been denied by SP2. The learned JC found no credible evidence to support such an assertion.

Having considered the demeanour and consistency of the witnesses, the learned JC concluded that the prosecution 11 witnesses were more credible and reliable than the accused and the defence witnesses. The learned JC found that the defence evidence did not displace the prosecution’s case or rebut the statutory presumption of trafficking.

In the result, the learned JC held that the defence was a bare denial and was not convincing. The learned JC therefore concluded that the defence had failed to raise a reasonable doubt in the prosecution’s case and had also failed to rebut the presumption of trafficking under section 37(da) of the DDA on a balance of probabilities.

The Appellant relies on the following grounds of appeal: i. Failure to undertake maximum evaluation of prosecution’s evidence at the end of the prosecution’s case:

Serious doubts as to the identity of the drugs;

Failure to prove the element of possession; and

Misappreciation of the defence and failure to consider the whole of the evidence objectively and from all angles. Our Analysis and Findings [26] In the present appeal, although several grounds were raised by the Appellant, we find it unnecessary to address each of them. In our judgment, the appeal may be disposed of on a single decisive issue, namely whether the prosecution had established beyond reasonable doubt the identity of the drugs which formed the subject matter of the charges. [27] It is settled law that in drug trafficking cases the identity of the drug exhibits must be proven beyond reasonable doubt. The prosecution must establish that the substance allegedly recovered from the accused is the very same substance that was analysed by the chemist and subsequently produced in court as the corpus delicti of the offence. This principle was clearly articulated in Gunalan a/l Ramachandran & Ors v Public Prosecutor [2004] 4 MLJ 489, where it was emphasised that the prosecution must prove that the substance seized from the accused is the very exhibit sent to the chemist for analysis. [28] The law further requires that the movement of the drug exhibits be properly accounted for at all material times, from the moment of seizure until their production in court. The chain of evidence must therefore remain intact so as to eliminate any possibility of tampering, substitution or confusion of exhibits. This principle was reaffirmed in Public Prosecutor v Hariswaran a/l Vasu Devan & Ors [2018] 8 MLJ 330, where the court held that any gap in the chain of evidence affecting the identity of the drug exhibits would be fatal to the prosecution’s case. [29] In the present case, the prosecution relied principally on the evidence of three witnesses to establish the identity of the drugs: a) SP2, the arresting officer who allegedly seized the drugs; b) SP7, the investigating officer who received the exhibits from SP2; and c) SP6, the chemist who analysed the substances and confirmed their type and weight. [30] Having carefully scrutinised the record of appeal, we find that serious discrepancies arose in the evidence of SP2 concerning the description of the drugs allegedly seized from the Appellant. The contemporaneous documents, namely the Borang Senarai Geledah (P8), the police report (P15) and the prosecution’s opening statement, described the seized items as transparent plastic packets containing crystalline substances. However, during his examination-in-chief SP2 testified that the drugs were found inside a black plastic packet. This account stands in clear contrast with the documentary evidence and with his own testimony during cross-examination. [31] More significantly, when the exhibits were produced in court, no such black plastic packet was tendered. Instead, the exhibit marked “B” consisted of a transparent plastic packet. Despite this discrepancy, SP2 identified the transparent packet as the item allegedly seized from the Appellant. [32] The inconsistencies did not end there. During cross-examination, it was further revealed that SP2 had described the contents of the packets differently at various stages of his testimony. In some instances, the substances were described as ‘hablur kristal’, while in others they were described as ‘serbuk kristal’. SP2 himself agreed that these descriptions referred to substances of different physical characteristics. [33] These discrepancies were expressly raised during the trial. However, the prosecution did not seek to clarify or reconcile these contradictions during re-examination. The law is clear that where evidence elicited during cross-examination casts doubt on a witness’s testimony, the prosecution bears the responsibility of addressing the matter during re-examination. In the absence of such clarification, the testimony in question remains unresolved and its reliability becomes questionable. In this regard, we refer to Muhammad Akmal Zuhairi bin Azmal & Ors v Public Prosecutor [2025] 3 MLRA 609 and Nasrul Annuar Abd Samad v PP [2005] 1 CLJ 193. [34] The matter is further complicated by evidence that a second raid was conducted at Sky Garden Condominium after the Appellant’s arrest but before the exhibits were brought back to the police station. It was undisputed that drugs were also seized during this second operation. [35] The evidence of SP2 on this point was inconsistent. At certain stages he stated that the Appellant was brought directly to the police station after the arrest. At other stages he acknowledged that another raid had taken place at Sky Garden where further drugs were seized. [36] Crucially, the prosecution did not adduce evidence explaining how the drugs allegedly seized from the Appellant were kept during the course of the second raid. SP7 herself testified that SP2 had not informed her how the exhibits were stored prior to their handover to her. Nor was she able to confirm whether the drugs seized during the two separate operations might have been mixed. [37] It is also significant that the drug exhibits were only marked and recorded at the police station after the Sky Garden raid had concluded. They were not sealed, initialled or otherwise formally identified at the scene of the arrest. In those circumstances, the possibility of confusion or mix-up of exhibits cannot be lightly dismissed. [38] Notwithstanding these matters, the learned JC concluded that the chain of evidence remained intact on the basis that the exhibits had been in SP2’s custody. With respect, we are unable to agree with that conclusion. As observed in Public Prosecutor v Khoo Chong Ban [2015] 2 CLJ 36, even where the movement of exhibits is continuous, the integrity of the chain of evidence may nonetheless be compromised if there is a possibility of tampering or confusion of exhibits. [39] In our judgment, the discrepancies relating to the description of the drugs, the colour of the packaging, and the circumstances surrounding the second raid give rise to a real possibility that the identity of the drug exhibits had not been satisfactorily established. These are not minor inconsistencies but matters which go directly to the identity of the very substance forming the subject matter of the charge. [40] The law is clear that where material discrepancies affecting the identity of the drug exhibits remain unexplained, the resulting doubt must be resolved in favour of the accused. This principle was affirmed by the Federal Court in Zaifull bin Muhammad v Public Prosecutor [2013] 2 MLJ 348 and reiterated by this Court in Lim Pah Soon v Public Prosecutor [2013] 6 MLJ 252, which emphasised that the identity and integrity of the drug exhibits, being the very corpus delicti of the offence, must be established beyond reasonable doubt. [41] Similarly, in Teoh Hoe Chye v PP [1987] 1 MLJ 220, the Supreme Court held that where doubt arises as to the identity of an exhibit, the failure to adduce evidence to bridge the gap in the chain of evidence would be fatal to the prosecution’s case. [42] In the circumstances of the present case, we are satisfied that the discrepancies and evidential gaps highlighted above were never satisfactorily explained. The resulting doubt as to the identity and integrity of the drug exhibits is therefore fatal to the prosecution’s case. [43] For this reason alone, the conviction recorded for the offence under section 39B (1) (a) (the Trafficking Charge) against the Appellant cannot safely be sustained. Conclusion [44] We are satisfied that the discrepancies relating to the description of the drug exhibits, coupled with the unresolved issues surrounding the second raid at Sky Garden Condominium and the handling of the exhibits prior to their marking at the police station, give rise to a serious and unresolved doubt as to the identity and integrity of the drugs which formed the subject matter of the charge. [45] In our judgment, these are not minor or peripheral inconsistencies. They go to the very core of the prosecution’s case, namely the identity of the drug exhibits which constitute the corpus delicti of the offence. In the absence of a satisfactory explanation from the prosecution to reconcile these discrepancies and dispel the possibility of confusion or mix-up of exhibits, the integrity of the chain of evidence cannot be said to have been established beyond reasonable doubt. [46] It follows that the conviction recorded against the Appellant under section 39B (1) (a) DDA is unsafe and cannot be allowed to stand. In light of our finding on this decisive issue, it is unnecessary for us to consider the remaining grounds of appeal advanced by the Appellant. [47] Accordingly, the appeal is allowed for the Trafficking Charge. The conviction and sentence imposed by the High Court are hereby set aside. The Appellant is acquitted and discharged of the charges. [48] The sentence and conviction for the Possession Charge under section 39A (1) DDA are upheld. Dated: 16 March 2026 Sgd NOORIN BINTI BADARUDDIN Judge Court of Appeal Malaysia LIST OF COUNSELS:

Datuk Amer Hamzah Bin Arshad;

Joshua Tay H’ng Foong; and

Lee Yee Woei [Tetuan Amerbon (Kuala Lumpur)] Counsel for Respondent:

TPR Nik Mohd Fadli Bin Nik Azlan [Attorney General’s Chamber] CASES REFFERED:  Chan Pean Leon v PP  Leow Nghee Lim v R  Gunalan a/l Ramachandran & Ors v Public Prosecutor [2004] 4 MLJ 489  Public Prosecutor v Hariswaran a/l Vasu Devan & Ors [2018] 8 MLJ 330  Muhammad Akmal Zuhairi bin Azmal & Ors v Public Prosecutor [2025] 3 MLRA 609  Nasrul Annuar Abd Samad v PP [2005] 1 CLJ 193  Public Prosecutor v Khoo Chong Ban [2015] 2 CLJ 36  Zaifull bin Muhammad v Public Prosecutor [2013] 2 MLJ 348  Lim Pah Soon v Public Prosecutor [2013] 6 MLJ 252  Teoh Hoe Chye v PP [1987] 1 MLJ 220