Muhammad Daniel Hakimie Bin Akashah (BA-45A-93-06/2022)

The accused, Muhammad Daniel Hakimie bin Akashah (IC No. 020904-10-0361), was charged with a drug trafficking offence under section 39B of the Dangerous Drugs Act 1952.

The charge against the accused in its original text in the National language states as follows- BA-45A-93-06/2022 2 Bahawa kamu pada 18/10/2021 jam lebih kurang 7.00 malam bertempat di hadapan rumah No. 114, Blok 5, Jalan PJS 8/14, Flat Kampung Melor, Bandar Sunway, Petaling Jaya, dalam daerah Petaling, di dalam Negeri Selangor Darul Ehsan, telah didapati mengedar dadah berbahaya jenis Cannabis seberat 1996.0 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 [Akta 234] yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama. Hukuman: Mati atau penjara seumur hidup hendaklah, jika dia tidak dihukum dengan hukuman mati, dihukum dengan sebatan yang tidak kurang daripada dua belas sebatan.

The accused pleaded not guilty, and the accused claimed trial on the charge. At the close of the Prosecution's case, this Court, having considered the submissions of both parties and the evidence adduced, and after undertaking a maximum evaluation of the evidence, found that the Prosecution had succeeded in establishing a prima facie case against the accused. Consequently, the accused was called upon to enter his defence.

The accused opted to give evidence under oath from the witness box, and the accused was the only witness for the defence.

Having considered the totality of the evidence for the Prosecution and the defence and the submissions of both parties, this Court decided that the Prosecution had succeeded beyond a reasonable doubt in proving the case as charge. This Court decided to convict the accused according to the charge. The Court sentenced the accused to thirty years imprisonment with 12 strokes of rotan.

Dissatisfied with the Court's decision, the accused filed an appeal to the Court of Appeal.

Hence, this is the Court's grounds of judgment, in addition to the broad judgment read in Court on the decision date.

The Prosecution called 6 prosecution witnesses to prove its case as follows: PW1 Dr Nur Nazihah bt Md Shahari (chemist) PW2 Akashah bin Mohd Diah (motorcycle owner) PW3 Insp Darwis bin Aripin (raiding officer) BA-45A-93-06/2022 4 PW4 Muhd Syahir Danial bin Ismadi (the accused's acquaintance) PW5 Kpl. Suhaidi bin Ahmad (the raiding team member) PW6 Insp Fadlee Syah bin Muhammad Rosli (investigation officer)

On 18.10.2021 at approximately 7.00 pm, acting on information received, the complainant (PW3) together with the raiding team proceeded to the front of house no. 114, Block 5, Jalan PJS 8/14, Flat Kampung Melor, Bandar Sunway, Petaling Jaya, to conduct a raid.

Upon arrival at the scene, PW3 and the raiding team carried out surveillance for approximately five minutes, after which they observed a Malay male (the accused) riding a black Yamaha LC 135 motorcycle bearing registration number BPX 4651 and parked his motorcycle at the said location.

PW3 then approached the accused and identified himself as a police officer. At that point, the accused fled trying to escape, but the raiding team successfully apprehended the accused after a short chase.

The accused was brought back to the crime location, and a search was conducted by PW3 on the motorcycle ridden by the accused in the presence of the accused. During the BA-45A-93-06/2022 5 search, PW3 discovered one brown box bearing the marking "J&T Express" in the motorcycle basket.

Upon opening the box, PW3 found it to contain two compressed blocks wrapped in white paper and reinforced with transparent adhesive tape, containing dried leaves suspected to be cannabis, with an estimated gross weight of 2050 grams.

PW3 seized the said exhibits and arrested the accused, who was then brought to IPD Petaling Jaya for further action. The seized drug exhibits were subsequently sent to the Jabatan Kimia Malaysia (JKM) for analysis by a chemist (PW1). The analysis confirmed that the exhibits contained dangerous drugs, namely cannabis, with a net weight of 1996.0 grams.

In the present case, both parties did not dispute that the drugs seized by PW3 were dangerous drugs as contained in the charge. The seized drugs were sent to JKM and were analysed by PW1, and the result from the analysis is reflected in the chemistry report marked as exhibit P5.

The weight and type of the drug analysed by PW1 are consistent with the charge. Therefore, the Prosecution contended that the first element of the charged had been satisfied.

On the issue raised by the defence on the gross weight of the drug which is relatively different from the net weight of the drugs after the analysist, the Prosecution further submitted that the decision in Hasbala Mohd Sarong v PP [2013] 6 MLJ 636 further supports the Prosecution's contention that the weighing process by the police is not the determining factor in the weight of the drugs. Rather, it is the weighing done by the chemist which determines the actual weight of the drugs and forms the basis of the charge. See also Law Sie Hoe v PP [2014] 6 MLJ 714.

In addition, the Investigation Officer (PW6) also testified that there was no issue with the break of the chain of evidence as alleged by the defence because PW6 kept the drug exhibits in a locked cabinet, and only PW6 had the key to the cabinet.

Furthermore, PW3 and PW6 had positively identified the drugs exhibited in Court based on the markings made by them.

PW6 also admitted that he had made a small incision in the plastic which wrapped the drugs to confirm that the plastic contained the dangerous drugs. However, the incision did not cause any tampering of the drugs exhibit.

Whilst on the second ingredient of the charge that the accused had control, custody and possession of the seized drugs can be seen from the testimonies of PW2, PW3, PW4 and PW5.

The accused had full control of the motorcycle in which the drugs were seized, as testified by the accused's father

The accused attempted to flee up to the second floor of block 5 when PW3 approached the accused within 20 meters of the accused.

The accused's control over exhibit P16 can also be seen through the testimony of PW4, who had testified that the box exhibit P16, as testified by him, contained Chocojar Food.

The Defence took the position not to cross-examine PW4. Hence, the evidence given by the PW4 is not disputed by the defence.

PW4 also testified that he saw the accused pick up the box from on top of the sink in a sealed condition. PW3 testified that the box was not sealed when it was opened in the presence of the accused. The evidence that the box was not sealed is consistent with PW5's testimony.

There is no evidence or other suggestion put to any prosecution witness that the accused met anyone else during the journey from PW4's house to Bandar Sunway/crime scene. Such facts had proven that the accused had control and custody over Exhibit P16.

The accused had knowledge of the seized drugs based on the accused's own actions, which constitutes subsequent conduct under section 8 of the Evidence Act as follows:

PW4 stated that he saw the accused take exhibit P16 in a sealed and taped condition.

At the scene when the accused was arrested, inspection of the motorcycle found exhibit P16 in an opened (unsealed) condition;

When the accused was approached by PW3 and the raiding party within a distance of 20 meters, the accused attempted to flee.

The strong smell emanating from the box exhibit P16 indicates that the accused had knowledge of the drug in exhibit P16.

The presumption under section 37(da) of the DDA applies as the net weight of 1996.0 grams of cannabis satisfies the presumption provision under the DDA.

The Prosecution submitted that there was no inconsistency evidence among the prosecution witnesses regarding exhibits P7 and P8.

The Prosecution submitted that PW3 testified that there was no reason for the accused to run away because his urine was negative for any traces of drugs. Therefore, there is no merit in the defence argument that the accused ran away because he was afraid of his urine being positive for drugs.

The Defence contended that there was a break in the chain of evidence as regards the handling of the drug exhibits P7 and P8 by the police. The defence argued that the exhibits had been tampered with due to the incisions (torehan) made by PW1 on the packets.

The defence further contended that Exhibit P16 could not have been placed in the motorcycle basket because it was too large to fit into the basket. It was also argued that the Prosecution had failed to tender the said basket in Court as a material exhibit during the trial.

The defence further contended that there was a suppression of evidence by the Prosecution's failure to tender the basket BA-45A-93-06/2022 10 carrier as evidence. It urged the Court to invoke an adverse inference under section 114(g) against the Prosecution.

The accused did not have knowledge about the drugs found in the box marked as exhibit P16, as he thought it contained chocojar, as testified by PW4.

There was a failure by the Prosecution to produce the Mobile phones in Court to prove that the accused was involved in drug trafficking.

The Defence alleged that the accused ran away because he was afraid of his urine being positive for drugs, and not that the accused knew about the content of exhibit P16. DUTY OF THE COURT AT THE END OF THE PROSECUTION

Section 180(1) of the Criminal Procedure Code provides the Court's duty at the end of the prosecution case to decide whether the Prosecution has succeeded in proving a prima facie case.

The cases of PP v Dato' Seri Anwar Ibrahim (No.3) [1999] 2 CLJ 215; [1999] 2 AMR 2017; [1999] 2 MLJ 1, Balachandran v PP [2005] 1 CLJ 85 and PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457; [2005] 6 AMR 203 respectively laid down clear principles of law that at the end of the prosecution case, BA-45A-93-06/2022 11 the evidence must be subject to a maximum evaluation for the Court to determine whether the Prosecution succeeded to establish a prima facie case. THE FINDINGS OF THE COURT AT THE CLOSE OF THE

Alleged contamination of the drugs due to small cuts/incisions (torehan) of exhibits P7 and P8 – break in the chain of evidence

Dr Nur Nazihah bt Md Shahari (PW1) testified that she had examined and analysed two (2) blocks of compressed plant material suspected of being cannabis (exhibit P9), which were wrapped with white paper and reinforced with transparent adhesive tape. She confirmed that the plant material was cannabis, as defined under section 2 of the DDA 1952, weighing 1996 grams, as in her report marked as exhibit P5.

The defence made a serious challenge to the first element of the charge when PW1 testified in Court that there were cuts (torehan)/incisions, as the defence called it, on the packages which contained cannabis.

Following this, the defence argued that the existence of the small cuts on the exhibits suggested that the exhibits had BA-45A-93-06/2022 12 been tampered with during the period when the drugs were in police custody.

Further, the defence argued that during the accused's arrest, the drugs weighed 2050 grams, which is significantly different compared to the weight stated in the charge, which is 1996 grams.

Thus, the defence argued that the packets were not the same as the ones seized during the raid, and there is a likelihood that the exhibit had been contaminated, as they were cut open. Hence, this has created a reasonable doubt as to the identity of the drugs exhibited and a break in the chain of evidence.

Now, this Court had carefully considered the evidence of PW3 and the investigating officer, PW6. When questioned about the cuts on the exhibits P7 and P8, PW6 explained that the incision was made merely to confirm the nature of the contents by opening the package and smelling the substance, as testified by PW6 as follows: “Toreh utk mengesahkan barang diterima adalah barang ganja. Buka dan bau."

After the above reply by PW6, the defence counsel did not further question the witness. Indeed, the defence counsel did BA-45A-93-06/2022 13 not ask the witness a critical question that, based on the exhibits P7 and P8, PW6 had tampered with the evidence.

In fact, from the Court's own observation, this Court hardly noticed the alleged small cut on the exhibits P7 and P8. See the photos at exhibit P17(3). Surely, this indicates that the cut was so small that it was not visible.

This Court was satisfied with PW6's explanation, and it is logical for PW6 to have made the small cut so as to check the content of the exhibits, and the Court found that there was no tampering with the exhibits and, therefore, no break in the chain of evidence.

In this regard, this Court had taken a similar approach as decided by the Court of Appeal in Mohd Khairul Azwan Zakaria & Anor v PP [2024] MLRAU 126, where there were no discrepancies and serious doubt as to the identity of the impugned drug. The Court of Appeal indeed did not disturb the finding by the trial Court on a small cut from the outer layer of the drug exhibits as follows: "(b) PW1 need to make a small cut from the outer layer of the exhibits/blocks as he needed to confirm that the exhibits contained suspected drugs or not. A series of inconsistencies in the cutting made were not material. Thus, no break in the chain of evidence relating to the drugs exhibits" (emphasis added)

In the present case, PW1 provided a satisfactory explanation that the difference between the gross weight and the net weight of the drugs was attributable to the weight of the packaging materials and not due to any contamination. PW1 is a qualified person who has undertaken a systematic analysis to determine the identity and weight of the drugs in accordance with the rules and procedures issued by JKM. See paragraph 8 of PSP1- PW1's witness statement.

The defence, on the other hand, strongly relied on the case of Zaifull Muhammad v PP & Another Appeal [2013] 2 MLRA 546 in support of its argument. However, the issue raised in the Federal Court involved a discrepancy in the testimony of witnesses and the original charge regarding the weight of cannabis. Whether a material discrepancy had created doubt as to the identity of exhibits. However, in the present case, it did not involve the same issue. Hence, Zaifull Muhammad v PP & Another Appeal is easily distinguished.

The Court refers to a Federal Court decision in Hasbala Mohd Sarong (supra), where the defence counsel in that case raised a similar issue as raised in the present case. YAA Raus Sharif PCA (at the material time) decided as follows: "(5) The difference in weight of the drugs exhibits by itself as found by PW6 and the chemist was not sufficient to create a reasonable doubt to the BA-45A-93-06/2022 15 Prosecution's case. There was no doubt that the drug's exhibits seized from the appellant and as examined by PW3 were the same drugs exhibits that the appellant was charged with. There was no break in the chain of evidence and the drugs exhibits were positively identified by the prosecution witnesses."

Further, the Federal Court in Lew Wai Loon v PP [2014] 3 MLJ 325 consistently decided that the weight alone of an exhibit such as drugs should not ipso facto cast doubt on its identity. There are other primary factors to consider, including the break in handling or custody, which can be tantamount to a break in the chain of evidence.

Having considered the evidence in its entirety, this Court is satisfied that the exhibits analysed by PW1 were the same drugs exhibits seized by PW3. The Court accepts PW1's explanation, and there is no evidence by the defence to challenge or contradict PW1's findings. Therefore, there is no doubt raised and no break in the chain of evidence as the Prosecution's witnesses positively identified the exhibits of the drugs.

Hence, the Court is of the considered view that there was no tampering of the exhibits P7 and P8. As such, there was no break in the chain of evidence as contended by the defence. BA-45A-93-06/2022 16

It is incumbent upon the Court to refer to the most eminent case of Chan Pean Leon v PP [1956] MLJ 237, regarding possession, where Thompson J said: "Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th Edition, page 304):- "A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need." To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. OKT2 must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the BA-45A-93-06/2022 17 nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shows such an intention. Or it must be clear that the circumstances in which it is found show such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so. It BA-45A-93-06/2022 18 is true that in prosecutions under the Dangerous Drugs Ordinance a lack of evidence in this connection may be made good by the statutory presumptions contained in that Ordinance. But there are no such presumptions in the Common Gaming Houses Ordinance nor are there any such presumptions in relation to possession of stolen property. Once possession is proved then before OKT2 person can be convicted it is necessary in addition to prove mens rea. And for this purpose as was pointed out by Gordon-Smith Ag. C.J. in the case of Toh Ah Loh and Mak Thim v. Rex [1948] 1 LNS 72; [1949] MLJ 54, supra, it is necessary to prove that the person in possession knows the nature of the thing possessed. If the thing, as in Toh's case, is in a box which itself is in the possession of OKT2 it must be proved that he knew what was in the box. If, as in Lee's case, it was a lottery document it must be proved that he knew it was a lottery document. Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible BA-45A-93-06/2022 19 variety of circumstances which will support such an inference is infinite. There may be something in OKT2's behaviour that shows knowledge, or the nature of the thing may be so obvious that it is possible to say "he must have known what it was" or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills a gap in the evidence."

Hence, the Prosecution bears the burden of proving possession, and they must demonstrate that the accused had physical control or custody of the drugs. Not only that, but the Prosecution must also prove that the accused had knowledge of the contents of what was in his custody.

The Prosecution relied on the testimonies of PW2, PW3, PW4, PW5 and PW6 to prove its case. The facts adduced by the Prosecution reveal that the accused arrived at the crime scene riding a motorcycle alone. The accused stopped in front of the building at the crime scene and was sitting on the bike when PW3 approached the accused.

PW3, upon identifying himself as police, the accused ran away to escape to the next building and stopped at the second floor of Block 5. The Raiding Team 3 pursued the BA-45A-93-06/2022 20 accused. The team subsequently apprehended the accused after a short chase.

While the other members of the raiding team pursued the accused, PW3 and PW5 remained behind to guard the motorcycle to prevent any interference with the evidence.

Significantly, the defence did not challenge the evidence of PW3 and PW5 on whether there was any interference with the motorcycle while other raiding team members were chasing the accused.

In this regard, the Court applied the judicial proposition in Wong Swee Chin v PP [1982] 1 MLJ 212, that failure to cross-examine a witness on a material aspect of the case amounts to an acceptance of the witness testimony, where the Court held: The law is settled that failure to cross-examine a witness on a crucial part of the case will amount to acceptance of the witness's testimony unless the story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy or when counsel indicates that he is merely abstaining for convenience, e.g. to save time, or where several witnesses are called on the same point.

Upon examining the motorcycle basket and in the presence of the accused, PW3 discovered exhibit P16, a brown-coloured box bearing the marking "J&T". Inside the box were two blocks of compressed dried leaves wrapped with white paper and reinforced with transparent adhesive tape (exhibits P7 and P8). Most importantly, PW3 testified that the box was not sealed. Further, PW5's testimonies were consistent with PW3's evidence.

The accused's father (PW2) testified that he bought the motorcycle around the year 2018 or 2019, and gave it to the accused, who had complete control of it, since then. There was no challenge by the defence that the motorcycle was in the possession of somebody else.

In the above circumstances, does the accused know about the drugs found in P16? To the Court, the evidence shows that the accused was in close proximity to the drugs and coupled with the fact of the accused's act of running away to escape after PW3 identified himself as a police officer, are the circumstances from which this Court is entitled to draw an inference of the accused's knowledge of the drugs in the box.

The inference of knowledge by the Court is based on known facts and not on assumptions. See Liew Kaling & Ors v PP [1960] 1 MLRA318; [1960] MLJ306. PW4 testified that the box (exhibit P16) contained a Chocojar and was sealed when BA-45A-93-06/2022 22 it was left on the sink at the ground floor of his house for the accused to pick up. However, when PW3 inspected the box, it was found that the box was unsealed and it contained the drug exhibits.

In the circumstances, the only reasonable inference for this Court to draw is that the accused had knowledge of the contents of the box, and he was in complete control of P16 because the box was in the motorcycle basket while he was riding the motorcycle from Subang Jaya to the place of the incident.

If the Court agreed with the defence argument, why would the accused run away if the box contained Chocojar when PW3 approached the accused, unless he knew the content of the dangerous drugs in exhibit P16?

This Court is in complete agreement with the Prosecution's submission that the act of running away to escape is tantamount to a subsequent conduct under section 8 of the Evidence Act. This Court is also of the considered view that there is a clear nexus between the contemproneuos conduct of the accused and the offence in dispute.

The subsequent act and conduct are also relevant under section 14 of the Evidence Act to show the accused's state of mind. See Parlan Dadeh v PP [2008] 2 MLRA 763; [2008] 6 MLJ 19; [2009] 1 CLJ 717.

The defence also did not suggest anything to the prosecution witnesses of what happened along the way to No. 114, Blok 5, Jalan PJS 8/14, Flat Kampung Melor, to create doubt on the accused's knowledge of the drugs in P16.

In the above circumstances, the accused must have known about the drugs in P16 because the drugs were in an unsealed box and wrapped with white paper and secured with transparent adhesive tape. These were sufficient circumstances to lead to a strong inference that the accused had knowledge of the drugs. See also PP v Abdul Rahman bin Akif [2007] 5 MLJ 1.

In the circumstances, the Court held that the accused had physical custody and control of the drugs because they were situated closely proximate to him on the motorcycle.

Thus, the Court found no merit in the defence's contention that there was a contradiction in PW4's evidence with that of other prosecution witnesses regarding the box. The fact that the box, which was not sealed, further strengthens the Prosecution's case against the accused.

The defence argued that the Prosecution could not establish whether the drugs belonged to the accused. It was put to the Prosecution's witness that the drugs belonged to PW4, and the accused was an innocent carrier of P16. The defence BA-45A-93-06/2022 24 also submitted that there was a suppression of evidence as the basket carrier was not exhibited in Court.

The Court is of the view that it found no basis for the defence contention as the basket carrier is not material to the Prosecution's case, especially considering that the accused knew about the drugs.

In this case, the amount of the dangerous drugs is 1996 grams, an amount necessary to raise the presumption under section 37(da) of the DDA 1952. This Court found that the accused is presumed until the contrary is proved, to be trafficking in the said dangerous drugs.

For the foregoing reasons, and upon maximum evaluation of the Prosecution's evidence, the Court ruled that the Prosecution has made out a prima facie case against the accused. The Court called upon the accused to enter his defence.

The accused opted to give evidence under oath from the witness box. The accused was the only witness for the defence.

As stated in the defence's written submission, the Defence narrative is summarised below.

The Accused, at the date and time of his arrest, was conducting his part-time job as a delivery rider, and he received a request from PW4 to collect P16 from PW4.

The Accused had ridden in aid of PW4, who had lived in a rental house containing other unknown tenants. Before collecting P16 from PW4's rental house, the Accused had no possession, nor did he have control over P16.

PW4 told the Accused that he himself was supposed to deliver the said exhibit P16 by an unknown "friend". However, because PW4 was unavailable, he had asked the Accused to deliver P16 instead.

The Accused had collected P16 from the front of PW4's house, which was found deliberately left on a sink by an unknown person.

PW4 told the Accused through WhatsApp that P16 contained "chocojar". This corroborates SP4's own testimony during the Prosecution's case that P16 contained said chocojar. P16 was sealed with cellotape.

The Accused, being a delivery rider, had no right or business to inspect or make known the contents of P16, as it would have violated the code of conduct of a delivery rider (as quoted in BA-45A-93-06/2022 26 verbatim "Sebab saya sebagai penghantar tak boleh buka sesuka hati").

The Accused was given a "link" of the delivery location from SP4 through WhatsApp. However, the Accused had no opportunity to inspect the exact delivery location and had only known of its distance (5 to 10 kilometres from PW4's house).

The Accused had left from PW4's rented house and headed straight to the location of the arrest, still without the knowledge of where he was supposed to deliver P16.

Following that, the Defence argued further that the Accused cannot be said to have physical or mental dominion over P16 because: - a. P16 was found to have been left by an unknown person at PW4's rental and was only collected by the Accused after PW4 had asked him to do so. b. Even if it is conceded that the Accused had physical possession of P16 (which later was found to contain the impugned drugs in P7 and P8), the Accused: - i. Had no idea what P16 actually contained, other than being "chocojar" as told by PW4. BA-45A-93-06/2022 27 ii. Did not know where P16 was supposed to be delivered. iii. Being a part-time delivery rider himself, would have no suspicion nor the right to open P16 on his own will to inspect the actual contents of P16, especially after being told it contained food (as he would normally deliver).

The defence further argued that the Accused had no knowledge of the impugned drugs as: - a. At the time before his arrest, P16 was sealed shut. b. The Accused had been apprehended some 10 minutes after being chased. c. The Accused had found that P16 was open by the time he arrived back at the motorcycle parking. d. The Accused had only found P7 and P8 when being shown by the police.

The Prosecution, on the other hand, submitted essentially that the accused's defence was a bare denial. The accused denied knowing the impugned drugs, and his conduct of running away to another block of apartments was not because he knew that he was carrying dangerous drugs. Still, he ran away because he was afraid for his safety, as the plainclothes police officers did not introduce themselves as police.

The accused also denied that he opened the box, which was sealed when he picked it up from PW4's rental house. The accused denied that he had possession of the drugs, and the drugs were for trafficking. THE COURT'S ANALYSIS AND FINDING AT THE END OF

At the conclusion of the trial, the Court shall consider all evidence adduced before it and shall decide whether the Prosecution has proved its case beyond a reasonable doubt.

The crux of the defence's argument centred on the same point: that the accused did not have control, possession, and knowledge of the impugned drugs, and the defence of innocent carrier applies to the accused.

The defence further reiterated that there was a break in the chain of evidence of exhibits P7 and P8 as the incision made by PW6 had contaminated the exhibits. Other than that, the defence also argued that the defence of innocent carrier applies against wilful blindness as contended by the Prosecution.

Further, the defence argued that SD1's defence was not a bare denial defence. But a challenge against the Prosecution's narrative and explanation of SD1's defence. See Siti Aishah bt Sheikh Abd Kadir v PP [2013] 6 MLJ 86.

This Court is mindful of the version put forward by the defence during the Prosecution's case, where it was merely suggestions and not a piece of evidence unless it is proven by a witness, as observed by Abdul Rahman Sebli JCA in Ali Hosseinzadeh Basher v PP [2015] 1 CLJ 918 : "It must be observed that what counsel puts or suggests to a witness in cross-examination is not evidence. They are merely suggestions and to give notice to the Prosecution that the defence has a different version of the events. They prove nothing and will remain nothing unless confirmed by the witness or by the party on whose behalf the suggestions are made."

Therefore, according to section 103 of the Evidence Act, the burden is now on the defence to raise a reasonable doubt against the Prosecution's case.

During the defence, SD1 testified that he did not know that he was carrying the drugs in exhibit P16, as PW4 informed him that the box contained chocojar. Whatmore, the accused testified that the box was sealed and he had no business opening the box. As a food rider, it is against the policy of Grab Food for the rider to open any of the customers' orders.

Interestingly, during the Prosecution's case, PW3 testified and corroborated with PW5's testimony that the exhibit P16 was not BA-45A-93-06/2022 30 sealed when he and the raiding team approached the accused near his motorcycle.

The Court also had made an inference of knowledge at the end of the Prosecution's stage that the accused knew about the drugs, for if the box contained chocojar, the accused would not have run a few meters from the place of the incident. In fact, the raiding team had to chase the accused until the first floor of the adjacent building near the place of the incident.

Moreover, the accused was in complete control of the motorcycle from Subang Jaya until Bandar Sunway/place of incident. Based on the facts of the instant case, it further strengthens the Court's finding that the defence of innocent carrier was inapplicable. Instead, the doctrine of wilful blindness applied to the facts of the instant case.

The Court was referred by the defence to the Court of Appeal case in PP v Khoo Chong Ban [2015] 2 CLJ 36, and the defence urged the Court to follow the judicial proposition as decided by the Court of Appeal that if there was tampering of the exhibits at any stage of the movement, it had created doubts in the drugs exhibits. The Court of Appeal held that the integrity of the exhibits had been compromised and ruled that there was a break in the chain of evidence.

Be that as it may, the decision in Khoo Chong Ban (supra) is distinguishable and does not apply to the facts of the present BA-45A-93-06/2022 31 case by reason that there was no contamination with the exhibits P7 and P8 as testified by PW1 when the defence recalled the Government's chemist to question whether there was contamination to the exhibits due to the incisions.

The Court had allowed the defence's application to recall PW1, and by recalling PW1, the Government's chemist testimony had further strengthened the Prosecution's narrative that the small incisions to the exhibits P7 and P8 did not amount to tampering with the drug exhibits.

PW1 gave evidence that the incision may cause oxidation of the cannabis, as they were dried leaves. But it did not tamper with the drugs, as the raisins in the drugs were the same.

Thus, a pertinent question to this Court is whether the accused was a credible witness for the Court to believe the defence's narratives. It is the Court's duty at this stage to assess the witness's credibility. Thus, for the Court to determine the accused's credibility regarding his defence, the critical question is whether the accused was telling the truth. See Tan Kim Ho & Anor v PP [2009] 3 CLJ 236.

During the Prosecution's stage, the defence had raised the defence that the accused ran because he was afraid of his urine being positive for drugs. Now at the defence stage, the defence narrative was different, and the reason the accused ran away was for safety reasons.

In this respect, the Court refers to the decision in Ho Sek Hong v PP [2010] 4 MLRA 22, where the Court of Appeal in that case referred to the Privy Council decision in State of UP v MK Anthony AIR [1985]SC 48 where the Privy Council has stated "that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see: Bhoraj v. Sita Ram AIR [1936] PC60."

Based on the above, this Court found that SD1 evidence lacked credibility and that the prosecution witnesses' evidence remained unrebutted.

Furthermore, as decided in Khairuddin bin Hassan v PP [2010] 7 CLJ 129, the Federal Court decided that: "… based on both elements of the conduct of the appellant and his proximity to the recovered drugs, coupled with his failure to give any satisfactory explanation, he was in mens rea possession of the drugs."

Having carefully scrutinised the evidence at the Prosecution's stage and the questions posed by the defence to the relevant prosecution witnesses, and the SD1's narratives, the Court conclude that the defence had failed to create any reasonable doubt regarding his knowledge of the impugned drugs.

The Court is of the considered view that SD1 had raised nothing new at the defence stage except repeating the issues which the defence had raised at the Prosecution's stage and dealt with by the Court at the Prosecution's stage.

Hence, nothing here to justify the Court in disturbing its earlier finding at the end of the Prosecution's case that the Court had made the inference of knowledge based on the conduct of the accused, which falls within the ambit of section 8 Evidence Act.

The Court concluded that the accused's defence was a bare denial based on the authority in PP v Ling Tee Huah [1982] 2 MLJ 324, which held: "A mere denial without other proof to reasonably dislodge the prosecution's evidence is not sufficient."

As for the rebuttal of the presumption under section 37(da) of the DDA 1952, the Court found that the defence failed to rebut the presumption on a balance of probabilities. See – Abdul Manaf bin Muhamad Hasan [2006] 2 CLJ 129.

Applying Mat v PP to the facts of the present case, the accused failed to raise any reasonable doubt about the Prosecution's case, based on the above.

As a conclusion, the Court is satisfied that the defence did not succeed in discharging the burden of proof on the balance of BA-45A-93-06/2022 34 probabilities to rebut the statutory presumption of trafficking in the impugned drugs under section 37(da) of the DDA 1952.

For the reasons stated above, the Court decided that the accused was guilty as charge and convicted the accused of the charge of trafficking under section 39B(1)(a) of the DDA. SENTENCING

Counsel for the accused submitted that the accused was 24 years old and emphasised that the accused was a first-time and youthful offender. The accused sat for his SPM examination in prison. The accused has repented and expressed remorse. The defence urged this Court to exercise its discretion in imposing an imprisonment sentence instead of the death penalty. AGGRAVATING FACTORS AS SUBMITTED BY THE

The Prosecution, in its oral submission, emphasised that public interest should outweigh the accused's personal interests. The Prosecution strongly urged the Court to impose the maximum sentence in light of the weight of cannabis in this case, as the offence committed by the accused is serious.