Muhammad Afiq Bin Abdullah v Pendakwa Raya (B-05(SH)-101-03/2025)

The court erred in finding that the prosecution proved a prima facie case;

(ii) The court wrongly concluded that the prosecution proved the case beyond reasonable doubt at the end of the defence case;

(iii) The court erred in finding that the defence failed to raise a reasonable doubt;

(iv) The finding by the court that he had custody and control over the seized drugs is disputed;

The appellant disputes having knowledge of the existence of the drugs;

(vi) The court allegedly erred in finding that the elements of trafficking were proven;

(vii) The appellant maintains that at most, the evidence only supported passive possession;

(viii) The court had failed to apply section 114 (g) of the Evidence Act 1950 regarding the prosecution’s failure to produce or offer a witness named Din Yam @ Muhammad Taufiq;

(ix) The investigating officer SP4 allegedly failed to conduct a thorough investigation, particularly regarding the defence involving Din Yam;

The court failed to properly assess contradictions in testimony between SP3 and SP4;

(xi) The appellant argues the court failed to appreciate the defence as an innocent carrier rather than wilful blindness;

(xii) The court failed to consider that the defence was consistent throughout both the prosecution and defence stages, leading to insufficient judicial appreciation;

(xiii) The court failed to directly evaluate the testimony of SD2, which supported the appellant’s version of events;

(xiv) The court wrongly applied section 8 of the Evidence Act 1950 regarding the appellant’s conduct while ignoring inferences favourable to him. Submission by Counsel for the Appellant [10] Based on the written and oral submission by counsel for the appellant, this court was urged to acquit the accused due to several material inconsistencies and gaps in the case of the prosecution, particularly when weighed against the evidence provided by the defence witness, SD2 Dik Yam. [11] The most significant inconsistency lies in the ownership and origin of the bag P10 containing 461.4 grams of meth. SD2, Muhammad Taufik, also known as Dik Yam testified that the bag belonged to him not the appellant. SD2 admitted he was the one who asked the appellant to deliver the bag to a friend at Blok J. The prosecution failed to disprove that SD2 was the real trafficker. Pursuant to the Radhi direction, if a court finds that another real person, not a figment of imagination is the actual trafficker, the accused is entitled to an acquittal. [12] The defence established that the appellant’s contact with the drugs was purely incidental and lacked criminal intent i.e. mens rea. Evidence showed the appellant only held the bag for roughly five minutes before the police raid. SD2 confirmed the bag was handed over immediately before the arrest. Proximity to the bag does not equal legal custody or control. The defence argued the appellant was a momentary and innocent carrier who lacked the power of disposal over the drugs. [13] The prosecution claimed the appellant’s wallet and IC were found inside the drug bag P10. But the appellant testified that his wallet was actually in his rear trouser pocket, not the bag. The defence argued that no sane or reasonable man would place his IC in a bag containing drugs that carry the death penalty, as it would directly link him to the crime. [14] The prosecution interpreted the appellant’s struggle during the raid as an inference of guilt. However, it has to be noted that the raiding officer SP3 admitted under cross-examination that the officers were in plainclothes. The appellant’s struggle was a reaction to being suddenly grabbed by unidentified men, which is consistent with fear for safety rather than knowledge of drugs. The law dictates that, where two inferences are possible, the one most favourable to the accused must be adopted. [15] The defence argued that the prosecution’s case was fatally flawed because the investigating officer SP4 failed to verify the appellant’s story at the earliest opportunity. The appellant provided information about Dik Yam (SD2) and the location of the real owner immediately upon arrest. Despite this Alcontara Notice, the police did not conduct a thorough investigation into SD2’s role to disprove the appellant’s version. This failure created a material gap, triggering an adverse inference against the prosecution under section 114 (g) of the Evidence Act 1950. [16] The defence witness SD2, effectively crystallised the defence narrative into evidence. By failing to reconcile these inconsistencies, specifically the ownership of the bag, the illogical placement of the IC, and the lack of investigation into the real trafficker, the prosecution failed to prove the case beyond a reasonable doubt. Submission by the Respondent [17] The respondent argues that the HCJ did not err in her findings for the following reasons:

The drug was found in a bag physically worn by the appellant, which also contained his personal identification;

(ii) The physical proximity and the inclusion of personal belongings create an irresistible inference of ownership and control;

(iii) The appellant’s attempt to flee is direct evidence of his guilty knowledge regarding the bag’s contents;

(iv) The respondent contends the appellant cannot claim to be an innocent carrier because his aggressive behaviour and flight attempt are inconsistent with that of an innocent person;

While a witness, SD2 Dik Yam claimed the bag belonged to him, the court found this did not negate the appellant’s act of carrying and concealing the drugs; and

(vi) The weight of the drugs, 461.4 grams is far too large for personal consumption, supporting the legal inference of trafficking. The respondent maintains that the prosecution established a prima facie case that remained unrebutted by the defence, hence requesting this court to uphold the conviction by the High Court and dismiss the appeal by the appellant. Issues with regard to the Burden of Proof [18] The reasoning by the HCJ regarding the burden of proof may appear inconsistent with the evidentiary principles applicable specifically concerning the distinction between rebutting a legal presumption and raising a reasonable doubt. The HCJ arrived at the finding of trafficking by relying on the statutory definition under section 2 of the DDA and weight of the drugs rather than explicitly invoking the presumption of trafficking under section 37 (da) of the DDA. The HCJ noted that trafficking under section 2 of the DDA includes carrying, concealing and keeping. The judge held that with 461.4 grams of meth, it was impossible for personal consumption and the inference of transporting for the purpose of trafficking was irresistible. Because the drugs were found in a bag worn by the accused, the court concluded this fell under the definition of trafficking in section 2 of the DDA. [19] In a case where reliance is not on the presumption of trafficking under section 37 (da) of the DDA, the burden on the accused should remain at the level of raising a reasonable doubt. However, several parts of the judgment by the HCJ use language that suggests a higher burden was placed on the accused. The judge used phrases that implies the accused had an obligation to disprove the court’s findings rather than merely provide an explanation that could be true:

The judge cited Mohamed Yazri Minhat v PP [2003] 2 CLJ 65, noting that a large quantity of drugs requires “convincing evidence … to rebut it”.

(ii) The judge placed significant weight on the failure of the accused to provide a full explanation, which is a standard often used when a legal burden has shifted. The HCJ cited authorities stating the onus is on the accused to explain his conduct of fleeing with “reasonable fullness of detail”.

(iii) The court concluded the accused failed to explain his conduct as required under section 9 of the Evidence Act, using this as a basis to infer knowledge.

(iv) When evaluating the defence at the end of the case, the judge applied the high threshold for what constitutes a doubt. The HCJ noted that while the law only requires raising a reasonable doubt, the accused cannot merely advance a defence that creates “fanciful doubts”.

The court dismissed the innocent carrier defence by stating that every accused person would use it, to obviate the defence of bare denial. Misdirection [20] By deciding that the act of “carrying” under section 2 of the DDA was sufficient to prove trafficking, based on weight or inference without using section 37 (da) of the DDA, the court essentially established the mens rea for trafficking as a matter of direct fact. If the statutory presumption is not relied on, the accused should not have been required to provide “convincing evidence” or a “full explanation” to succeed; he only needs to provide a version of events that could be true to create a reasonable doubt about his knowledge of the contents of the bag P10. [21] The judge’s heavy reliance on the accused “failure” to explain his conduct and his “failure” to rebut the weight-based inference suggests the court may have applied a more onerous burden of proof than required for a non-presumption case, i.e. under section 2 of the DDA. [22] By opting for a direct finding of trafficking under section 2 of the DDA through weight-based inference rather than invoking the section 37 (da) presumption, the trial judge was legally bound to maintain the burden on the accused at the level of raising a reasonable doubt. If the court, however, demanded “convincing evidence” or treated the testimony of the accused as an afterthought because it wasn’t corroborated to a higher degree, this constitutes a misdirection on the standard of proof. Misdirection on the credibility of the defence [23] The HCJ appears to have dismissed the version of the accused not because it failed to create a doubt, but because the accused failed to prove he was an innocent carrier. The judge noted that SD2 Dik Yam confirmed he requested the accused to deliver the bag P10 because he had to babysit his younger sibling. In the absence of a legal presumption, the explanation by the accused, corroborated by the person who allegedly gave him the bag, should logically raise a doubt as to his mens rea. The HCJ misdirected herself by requiring the defence to be more than a bare denial and labelling the story fanciful, despite it being corroborated by SD2, who admitted his involvement in court. Misdirection on Wilful Blindness [24] The HCJ used the doctrine of wilful blindness to bridge the gap between “carrying the bag” and “having knowledge”. By applying this doctrine, the judge essentially ruled that the accused should have asked what was in the bag. If the prosecution is proving trafficking as a direct fact, not a presumption, they must prove actual knowledge. By forcing a duty to inquire on the accused, the judge effectively shifted the burden of proof on to the accused to prove his innocence. The Impact of SD2’s evidence [25] The presence and testimony of SD2 are pivotal. The HCJ’s treatment of this evidence suggests a misdirection on how to evaluate defence witnesses:

Upon reviewing the evidence adduced, it is apparent that SD2 has confirmed that the bag P10 which contained the impugned drugs was in fact handed over to the appellant. This fact was not rebutted by the prosecution witnesses SP3 and SP4, who had in fact acknowledged SD2’s existence and his arrest as a suspected runner, yet the appellant was charged for the offence of drug trafficking.

(ii) The judge dismissed SD2’s testimony by stating he was not an independent witness and his evidence must be treated with caution.

(iii) In a case where the burden is merely to raise a reasonable doubt, the judge’s total rejection of a corroborating witness, who effectively incriminated himself as the owner and source of the bag P10, may be seen as an error in law. Decision of this court [26] Upon reviewing the grounds of appeal and the trial record, we find that the conviction is unsafe for the following reasons:

The defence witness SD2 was a real person and not a figment of imagination who admitted ownership of the bag. Under the Radhi direction, where another person is identified as the actual trafficker and the prosecution fails to disprove this, the appellant is entitled to an acquittal;

(ii) The evidence suggests the appellant only had custody of the bag for roughly five minutes before the raid. This momentary possession, coupled with SD2’s corroboration, supports the claim that the appellant lacked the necessary mens rea and power of disposal. If there is momentary custody of the bag P10 without any knowledge or means of knowledge of what the bag contains, then there would not be possession, as the accused person lacks the animus possidendi;

(iii) It is also highly improbable that a person would place their identity card in a bag containing drugs that carry a capital sentence. This creates a logical inconsistency in the claim by the prosecution regarding how the IC was found. The HCJ ought to have evaluated this piece of evidence carefully as it defies common sense for the accused person to have carried his IC together with him when he was just in the vicinity of the place of his stay, with SD2 as his neighbour. If at all he was carrying his IC, it must have been in his trouser pocket, as it is clear from the evidence adduced that he was just assisting SD2 to send P10 to another friend at a different block of the apartments they were living in. Moreover, SP3 had testified that at point of arrest, he had seized P10 and the wallet belonging to the accused from his trouser pocket. He did not say P10 contained the IC of the accused. This brings to our mind the judgment by Gopal Sri Ram JCA (as he then was) who spoke for the Court of Appeal in the case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors reported at [2003] 2 MLJ 97 at page 116, that a trial judge when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. He must also test the evidence of a particular witness against the probabilities of the case. Crucially, His Lordship had decided that a trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal, like in the present case;

(iv) The appellant provided information regarding Dik Yam (SD2) immediately upon arrest. The investigating officer SP4 failed to verify this Alcontara Notice at the earliest opportunity, constituting a serious investigative lapse and

Due to the failure to investigate the real owner and the failure to offer or call material witnesses, an adverse inference under section 114 (g) of the Evidence Act 1950 is triggered against the prosecution. [27] To summarise, the judgment shows that the HCJ

Directly found trafficking via inference of weight by applying section 2 of the DDA.

(ii) Ignored the resulting lower burden on the accused to only raise a reasonable doubt.

(iii) Applied a higher “convincing evidence” standard to the defence of innocent carrier raised by the accused. By rejecting the defence of the accused, which was supported by the testimony of the very person, SD2 who gave him the bag, the court failed to consider whether that version could be true, regardless of whether the judge believed it entirely, as it has the definite effect of raising a reasonable doubt on the guilt of the appellant. (See the oft quoted authority of Mat v PP (1963) MLJ 263). This failure to recognise that a credible explanation dislodges the case of the prosecution renders the conviction unsafe and susceptible to appellate intervention. (See Ling Tee Huah v PP [1980] 1 LNS 12). Conclusion [28] In this case, the failure of the trial judge to properly evaluate the evidence, specifically the testimony of SD2 Dik Yam, highlights a lapse in judicial appreciation that is essential for a fair trial. While section 2 of the DDA defines trafficking, the court must remain mindful that:

Trafficking under section 2 is not a strict liability offence; it entails possession followed by the act of trafficking, but crucially, it must be accompanied by knowledge that the substance is a dangerous drug;

(ii) The mere act of carrying is insufficient to constitute the offence of trafficking. (See PP v Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129 FC). There must be an overt act on the part of the accused that signifies dealing with drugs with the requisite mens rea. (See Ong Ah Chuan v PP [1981] 1 MLJ 64 PC);

(iii) Section 2 by itself does not signify trafficking without proving that the accused intended to deal in those specific illegal contents. [29] A critical misdirection occurred regarding the burden of proof required when the prosecution relies on direct evidence or section 2 of the DDA:

Unlike when statutory presumptions under section 37 are invoked, if the case proceeds under section 2, the appellant is not required to rebut a presumption on a balance of probabilities;

(ii) The appellant’s only legal burden is to raise a reasonable doubt in the case of the prosecution and his overall guilt. The introduction of SD2 as the real trafficker and the explanation of the innocent carrier defence successfully met this lower threshold. [30] The trial judge’s decision was fundamentally flawed due to:

The court failed to directly reconcile the fact that SD2 admitted ownership of the bag P10, which effectively dislodged the prosecution’s claim of exclusive possession by the appellant;

(ii) By ignoring the possibility of momentary custody and the illogicality of the appellant placing his IC in a drug bag, the court failed to adopt the inference most favourable to the accused. (See PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457 FC);

(iii) The lack of investigation into the Alcontara Notice regarding Dik Yam created a material gap that should have been resolved in favour of the appellant. [31] Upon the whole of the evidence, the prosecution failed to prove the element of knowledge and trafficking intent beyond a reasonable doubt. The trial judge’s failure to appreciate the defence in its entirety pursuant to section 182A (1) of the Criminal Procedure Code (CPC/Act 593) on its consistency resulted in a misapplication of the burden of proof. Consequently, the irresistible inference of trafficking was successfully negated by the reasonable doubt raised by the defence. [32] Therefore, we unanimously find that the defence succeeded in raising a reasonable doubt. The HCJ erred by failing to give sufficient judicial appreciation to the testimony of SD2 and the investigative gaps. Her Ladyship had committed a fundamental error by not considering that a reasonable doubt in this case exists, as it arises from consideration of all the evidence adduced in a fair and reasonable manner. If the HCJ had considered all the evidence, she would have arrived at a different conclusion on the innocence of the accused. [33] Thus, we are of the view the conviction entered against the appellant is unsafe, and the appellant is entitled in law to an acquittal and discharge. The appeal is therefore allowed, conviction and sentence by the High Court is set aside and the appellant is acquitted and discharged forthwith. Muniandy Kannyappan Judge Court of Appeal Putrajaya. Dated: 5 May 2026 For the Appellant : Afifuddin Bin Ahmad Hafifi Aina Melina Binti Johan Ariff Lim Messrs. Salehuddin Saidin & AssociatesWisma Salehuddin No. 14, Jalan Tengku Ampuan Zabedah A 9/A, Seksyen 9, 40100 Shah Alam, Selangor For the Respondent : Mohd Fuad Bin Abdul Aziz Timbalan Pendakwa Raya Bahagian Perbicaraan & Rayuan Jabatan Peguam Negara