Muhammad Lukman bin Mohamad v Pendakwa Raya (B-05(M)-452-09/2018)

The appellant was charged with 3 charges under section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA). The 3 charges read as follows: 1st Charge: “Bahawa kamu pada 7 Disember 2015 pada jam lebih kurang 6.45 petang bertempat di rumah No: 50, Jalan Mentari 1B/10 Bandar Mahkota, Banting di dalam Daerah Kuala Langat, di dalam Negeri Selangor Darul Ehsan telah didapati memperedarkan dadah berbahaya seberat 3010 mililiter jenis DELTA-9-TETRAHYDROCANNABINOL dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” 2nd Charge: “Bahawa kamu pada 7 Disember 2015 pada jam lebih kurang 6.45 petang bertempat di rumah No: 50, Jalan Mentari 1B/10 Bandar Mahkota, Banting di dalam Daerah Kuala Langat, di dalam Negeri Selangor Darul Ehsan telah didapati memperedarkan dadah berbahaya seberat 1422 gram jenis DELTA-9-TETRAHYDROCANNABINOL dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” 3 3rd Charge: “Bahawa kamu pada 7 Disember 2015 pada jam lebih kurang 6.45 petang bertempat di rumah No: 50, Jalan Mentari 1B/10 Bandar Mahkota, Banting di dalam Daerah Kuala Langat, di dalam Negeri Selangor Darul Ehsan telah didapati memperedarkan dadah berbahaya seberat 279.81 jenis Cannabis dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

The learned trial Judge found that the prosecution had proved its case beyond reasonable doubt for the 3 charges and convicted and sentenced the appellant on the 3 charges under section 39B(1)(a) of the DDA. Aggrieved with the decision, the appellant appealed against the conviction and sentence on the 3 charges.

After hearing the oral submissions and perusing through the written submissions of both parties, unanimously we found no appealable error on the decision of the learned trial Judge on the 1st and the 2nd charges. As such the appeal by the appellant against the 1st and the 2nd charges were dismissed and we confirmed the conviction and sentence imposed by the learned trial Judge in respect of the same.

As for the 3rd charge, we find there is merit in the appeal which warrants appellate intervention on our part. We therefore set aside the conviction and sentence under section 39(B)(1)(a) on the 3rd charge and substituted it with a conviction under section 6 of the DDA punishable 4 under section 39A(2) and sentenced the appellant to an imprisonment term of 7 years from the date of arrest and 10 strokes of whipping.

Herein below are our reasons for deciding so.

On 7 December 2015, a police team led by Inspector Mohd Hurairah Alinur bin Mohd Zaid (SP 7) raided a house at an address as per the charges, as the house was suspected to be carrying on activities of drugs trafficking.

When SP 7 and 4 of his team raided the said house, the appellant appeared shocked and stunned. SP 7 found in the hall, apparatus and paraphanelias for smoking cannabis under the stairs and there were also cardboard boxes which SP 7 suspected to be used for packing drugs. At that time the wife of the appellant Nadiah binti Rahmat (SP 10) had just completed her prayers.

SP 7 checked the boxes which were found under the stairs and he found numerous Pos Laju receipts, packages of caps of vape bottles and vape bottles. At the kitchen, SP 7 found 2 trays filled with 90 bottles (filled with liquid suspected to be cannabis oil) and the said trays were on an oven. It was also found a jar of biscuits, a slow cooker and a box containing oil.

A yellow bag was found on a mattress upon inspection of the appellant’s bedroom and in it was found to contain drugs suspected to be cannabis. 5 [10] SP 7 found in the middle room, a glass cylinder bottle and boxes of wrapping papers. SP 7 subsequently prepared a search list and marked the items which were seized and handed over the same to the investigating officer, SP 9.

The items which were seized and suspected to be drugs were sent to the chemist, Khairul Hadi bin Hj Abdul Raof (SP 6) for analysis. SP 6 testified that the “tumbuhan mampat’ marked as AA-1 is cannabis weighing 232.9 gram. As to the items “ranting bahan tumbuhan” marked as AA-2 was analysed to be cannabis weighing 13.39 grams.

The plastic bag marked as H13 which was filled with “bahan tumbuhan hancur” and oil was found to contain Delta-9- Tetrahydrocannabinol weighing around 505.3 gram. A plastic bag marked as U-2 had similar content weighing 375.3 gram. The plastic marked as U-1 which consisted of “bahan tumbuhan hancur” has a net weight of 460.9 gram of Delta-9-Tetrahydrocannabinol. The box marked as “S” which contained plastic container marked as “S-1” filled with “ranting bahan tumbuhan” which after initial analysis by SP 6 was confirmed as cannabis with a net weight of 33.52 gram.

Apart from the aforesaid, the biscuits and bottles which were seized from the appellant’s house had traces of cannabis or Delta-9- Tetrahydrocannabinol.

On the 1st element that the drugs seized from the appellant are as listed under the 1st Schedule of the DDA, the learned trial Judge was 6 satisfied with the evidence of the chemist. The learned trial Judge found that SP 6 was a credible witness and that the method employed by him on analysing the substance seized was acceptable and there is no doubt on the net weight of the drugs as stated in P60. It had been proved that the substance are dangerous drugs as listed under the 1st schedule of the DDA and bore the weight as stated in the charges (Paragraph 9 of the grounds at RR Jilid 1 at page 16).

The learned trial Judge correctly set out the relevant principle to consider in determining the element of custody and control. Along with custody and control is the element of knowledge. Both to be proved either by direct or circumstantial evidence. As to knowledge a presumption can be drawn under section 37(d) of the DDA. (Leow Nghee Lim v R [1956] 22 MLJ 28; PP v Abdul Rahman Akif [2007] 4 CLJ 337).

The learned trial Judge considered the importance of determining whether the cannabis which was found in the house occupied by the appellant was intended for ‘manufacturing’. Premised on the facts of the case, whereby the apparatus and the materials which were found, is believed to have been used for the processing of cannabis to produce Delta-9-Tetrahydrocannabinol, shows that the appellant ‘manufactures’ Delta-9-Tetrahydrocannabinol. Cannabis is used as the prime ingredient in the process to produce the same which are the subject matter for the 1st and 2nd charges.

The issue here is whether the prosecution had proved that the appellant ‘manufacture’ drugs. The evidence of SP 10, the wife of the appellant, said that the appellant had utilised the apparatus as can be seen from P56. The packaging was done by the appellant. SP 10 did 7 not help the appellant in the manufacturing or packaging of the drugs. The fact that the appellant sells the drugs via his facebook proved that the appellant was trafficking in the said drugs. All these findings of the apparatus and the ingredient in the house show strong circumstantial evidence that the appellant was carrying out activities of manufacturing Delta-9-Tetrahydrocannabinol in the amount as stated in the charges. Through the evidence of SP 10 and SP 2, it was established that the said house was only occupied by the appellant and SP 10.

As for the 3rd charge, despite SP 7 said that he did not record where the bag P20 was found and the failure on his part to make any marking on the same, the learned trial Judge was satisfied with the explanation by SP 7 as to why he failed to do the necessary records and markings.

In the present case, the drugs which were found in P20 are of the same type with the drugs in the 1st and the 2nd charges. When SP 7 seized the drugs it was in the presence of the appellant. Hence an inference could be made that the drugs were found and were seized from the same premise whereby the appellant had custody and control.

The prosecution had proved the elements of custody and control of the drugs in the 3rd charge. As to the element of trafficking on the said charge, the learned trial Judge invoked section 37(da) of the DDA as the possession of the said drugs was beyond the minimal weight as stipulated under the said section, namely 200 gram or more of cannabis (see paragraph (f) of the section 37(da) of the DDA). 8 [21] The element of trafficking was established for the 3rd charge and a prima facie case proved against the appellant for the 3rd charge and the appellant was called to enter his defence on the charges.

The appellant in his defence testified that when he opened the door, the police team had inspected every part of the house and the appellant said that he did not know that there were drugs in the house.

The appellant said that the items were sent by Zainal Hafiz bin Zaine (SD 2) who is also known as “Janggut”, as SD 2 had moved house to Terengganu. SD 2 had asked the appellant to fill the oil from the big bottles into the smaller bottles as he had no time to do so.

The appellant knew that the oil is cannabis but he claimed it was used as medicinal purposes to cure various ailments. The said oil was sold online in the website “Health-Care”. The appellant presumed that such act does not contravene any law.

The appellant said that the yellow bag, P20 which contained the drugs was only shown to him at the police station.

When the appellant was cross examined, he denied the presence of any apparatus or paraphenalias found on the floor in the hall used for smoking cannabis and denied that he had knowledge that the drugs seized by the police were cannabis. 9 [27] The evidence of SD 2 was that before he went to Terengganu, he had met with the appellant to send grape seed oil in several bottles and several boxes of wrappings to the appellant. It was only after that, that SD 2 knew that the appellant had been arrested.

The evidence of Muhammad Fakhrul Amin bin Mohd Tahar (SD 3) was that he went over to the appellant’s house to help in the packaging of the ‘oils’ and posting to the various customers. SD 3 did not have any knowledge that the oil contained “cannabis” and said that the yellow bag, P20 which contained drugs cannabis does not belong to him or SD 2.

Latifah binti Ma’sor (SD 4), the mother to the appellant and Mohammad Hafiz Hukmi bin Wardi (SD 5), the brother in law to the appellant, only gave evidence with regards to the personal character of the appellant before his arrest.

The evidence of Muhammad Aris bin Mohd Mokles (SD 7) who is a lecturer of University Putra Malaysia said that the methodology used by the chemist, SP 6 in Chemistry Department Malaysia in the extraction of the drugs in the form of liquid was insufficient and was outdated. SD 7 agreed that cannabis was acknowledged to have some health benefits in our country. SD 7 also agreed that he is not a qualified chemist certified by the Chemistry Department of Malaysia.

The learned trial Judge found that the defence failed to raise any reasonable doubt on the prosecution’s case for each of the charges for the following reasons: 10

The defence is a mere denial;

(ii) A substantial part of the defence are mere afterthoughts;

(iii) The defence of the appellant that the items were sent to his house by Zainal Hafiz bin Zaine (SD 2) or known as “Janggut”, was never put to any of the prosecution’s witness during the prosecution’s case;

(iv) The evidence of Muhammad Fakhrul Amin bin Mohd Tahar (SD 3) who said that he had easy access to the house of the appellant as he knew where the keys to the house was, was never put to any of the prosecution’s witnesses during the prosecution’ s case.

The defence had called witnesses after witnesses without making any indication as to its purpose as a defence in the prosecution’s case.

(vi) The evidence of Mohammad Hafiz Hukmi bin Wardi (SD 5), the brother in law to the appellant, was not relevant to the element of custody and control by the appellant on the drugs found in the house.

(vii) Based on the explanation by the appellant that despite he had no knowledge that the oil contained cannabis, however the appellant said that he filled up the oil in smaller bottles for medicinal purposes. This defence of the appellant was not supported by any proof or evidence. 11

(viii) There is a contradiction in the evidence of the appellant as to the items seized like the sticker which are labels with a picture of the cannabis leaf and the ingredients which are to be placed and glued onto the bottles and the boxes found in the house. According to the appellant it was sent to the house by SD 2, however the evidence of SP 3 and SP 8 said that both these items were commissioned from their shops by the appellant. All the wordings on the boxes and the design were provided by the appellant. The evidence of SP 8 said that the appellant came to his shop and ordered the sticker labels to be placed on the cannabis oil bottles. The appellant came with a sample of the design for the stickers to be printed by SP 8. SP 3 said that the appellant came to his shop 4 times to place an order for the boxes which were used to pack the cannabis oil. SP 3 said that for each order the appellant paid RM650.00.

(ix) The learned trial Judge found that the evidence of SD 2 cannot be believed. SD 2 said that the cannabis straws (“hampas”) has no value after it had been processed, however why was it still being kept in the house of the appellant if it is worthless?

The explanation by the appellant on the 3rd charge was not accepted by the learned trial Judge because the drugs which were found are of the same type in the manufacturing of the cannabis oil. 12

(xi) The evidence of Muhamad Aris bin Mohd Mokles (SD 7), a lecturer in Universiti Putra Malaysia also failed to rebut the evidence of SP 6 as SD 7 is not a certified qualified chemist.

(xii) There is no issue that the 1st and the 2nd charges were defective when it failed to state the net weight of Delta-9- Tetrahydrocannabinol, as the evidence of SP 6 was credible.

(xiii) As for the 3rd charge there was evidence of custody and control and the drugs which were found in the master bedroom is of the same nature of drugs as found in the other part of the house. As the house was occupied only by the appellant and his wife, and the evidence of his wife which exclude others from having possession to the drugs found in the bedroom, the element of possession and knowledge was proven against the appellant. [32] The learned trial Judge found that in view of the aforesaid the defence failed to raise a reasonable doubt on the case of the prosecution. The appellant was therefore found guilty of the 3 charges and he was convicted and sentenced to death as stipulated under the DDA. THE ISSUES RAISED BY THE DEFENCE: [33] At the hearing of the appeal before us, the appellant relies on the following 3 main grounds in his appeal: 13 1st ground: [34] Firstly, the conviction in respect of the 1st and the 2nd charges cannot be sustained because the prosecution cannot establish the net weights of the drugs in the 1st and the 2nd charges. [35] Under this ground the defence submits that from the evidence of the chemist, SP 6, he did not do any quantitative analysis of the dangerous drugs which is the subject of the 1st and the 2nd charges. This can be seen from the evidence of SP 6 which are contained in RR Vol 2A at pages 34-58 particularly at page 58: “S: My question what are the percentage of delta-9- tetrahydrocannabinol are there in 3010 ml of that point? J: Analisis itu memang saya tidak buat, untuk quantitation(sic) itu memang tidak buat. S: Saya cadangkan kepada kamu bahawa kamu tidak menjalankan ujian kuantitatif terhadap barang kes H1, H3, H4 dan H6? J; Ya, betul.” “barang kes H1, H3, H4 dan H6” refers to the subject matter of the 1st charge. [36] Further, the defence referred to the witness statement of SP 6, the chemist, at RR Vol 3A at page 81 when he stated as follows: “ Dari analisis ini didapati:

Cecair dalam “H” (c ) iaitu botol kaca “C”, “H1”, “H3” dan “H4” mengandungi delta-9-tetrahydrocannabinol. 14

(ii) Kek/Biskut dalam “H5” mengandungi delta-9- hydrocannabinol.

(iii) Bahan tumbuhan hancur dalam “H11”, H12” dan “H-13” mengandungi delta-9-tetrahydrocannabinol….” [37] The defence submits that the failure on the part of SP 6 to do any quantitative analysis on the drugs of the 1st and the 2nd charges amounts to a serious omission. [38] The defence also refers to the Request Form by the Investigating Officer to the chemist, SP 6 at pages 84 and 85 of RR Jilid 3A which specifically requested for “Bagi menentukan jenis dadah dan berat bersihnya”. [39] Hence, the defence submits that as the chemist, SP 6 failed to do the quantitative analysis of the drugs sent by the Investigating Officer, the 1st and the 2nd charges collapsed. It has not been proven beyond reasonable doubt that the net weight of Delta-9-Tetrahydrocannabinol is as stated in the 1st and the 2nd charges as it has been mixed with other components. These are capital charges as the appellant is sentenced to death on an amount of dangerous drugs which were not quantified correctly. [40] As both charges failed to state the actual amount of dangerous drugs, the defence submits that the conviction under the 1st and the 2nd charges are therefore not safe and ought to be set aside. 15 2nd ground: [41] Alternatively, the defence contends that the dangerous drugs in the 1st and the 2nd charges are medicinal cannabis and as such cannot be caught within the ambit of the DDA. [42] The defence submits that the subject matter of these 2 charges are not within the ambit of the DDA. There was evidence that the appellant had sold these drugs online via his facebook and these are called medicinal cannabis. There is evidence adduced by the defence that these cannabis oil is used as a medicine to treat diseases like cancer, thyroid and thalassemia, amongst a few. There is evidence from SD 6, a patient who vouched for the effectiveness of taking the cannabis oil for his Beta Thalassemia Intermedia and Minor Bipolar ailments. [43] The defence submits that Delta-9-Tetrahydrocannabinol serves public good in terms of its medicinal properties and health benefits and that this is not the mischief that the DDA intends to eradicate. [44] The defence also submits that there has been calls by the executive for a review of the charges against the appellant. [45] What the defence wish to emphasise to this court is that it is not in the public interest that the conviction against the appellant must be sustained. This is not trafficking of dangerous drugs. 16 3rd ground: [46] The defence submits that in relation to the 3rd charge, the learned trial Judge had invoked the presumption under section 37(da) of the DDA. The appellant is presumed trafficking as the amount exceeded 200 grams. The defence’s complaint is that when section 37(da) of the DDA was invoked, it is incumbent on the learned trial Judge to make a finding at the end of the defence case whether the defence had succeeded in rebutting the said presumption. [47] The defence submits that the learned trial Judge failed to do so. His Lordship only said at the end of the defence case that for all the 3 charges, the defence failed to raise a reasonable doubt on the prosecution’s case (refer to paragraph 71 of the grounds). Nowhere did he say that he found as a matter of fact that the presumption under section 37(da) had been rebutted or otherwise. [48] The defence referred us to this court’s decision which had been affirmed by the Federal Court in the case of Seyedalireza Seyedayatollah Ehtehshamiardestani v PP [ 2014] 4 CLJ 406 which held that “the failure of the learned trial judge to make a finding as to which presumption was relied upon for possession and trafficking and the failure to consider whether the appellant had rebutted the presumption, amounts to a misdirection by way of non-direction which has prejudiced the appellant”. [49] On these grounds, the defence submits that the 3rd charge cannot stand. The consequences of the failure of the learned trial Judge to make a finding whether the presumption was rebutted ought to result in the 17 conviction to be set aside and the cases also do substitute the offence of trafficking with possession. In other words, the defence submits that at best the appellant is guilty of an offence of possession only. OUR FINDINGS: [50] We will address the 3 main grounds as raised in the oral submissions of the appellant. Ground 1: Whether the convictions in respect of the 1st and the 2nd charges could be sustained as the prosecution failed to establish the net weights of the dangerous drugs in these 2 charges: [51] The defence raised the issue on the 1st and the 2nd charges as being defective as it failed to state the exact weight of the Delta-9- Tetrahydrocannabinol as the said drugs were mixed with other components. The learned trial Judge had considered this issue premised on the evidence of SP 6 who said that the methodology that he used to extract Delta-9-Tetrahydrocannabinol was in accordance to the S.O.P determined by the Chemistry Department of Malaysia and as recommended by United Nations of Drugs Convention (UNODC). Further it was explained by SP 6 in his re-examination as follows: “S: Rujuk kepada witness statement kamu, jadi di dalam kes ini saya akan simpulkan Cross-Examination peguam, terdapat 2 jenis iaitu satu kaedah yang digunakan untuk analisa dadah yang berjenis minyak dan satu lagi Cannabis. Bagi Delta-9-Tetrahydrocannabinol khususnya ml, apabila kamu membuat ujian tersebut kamu pasti 18 kesemua bahan yang kamu analisa tersebut mempunyai dadah tersebut iaitu Delta-9-Tetrahydrocannabinol? J: Ya, saya pasti. S: Untuk membantu Mahkamah dan pihak-pihak di sini, bagaimana kamu memastikan dadah tersebut? Saya faham going back to ujian, boleh kamu terangkan sebab persoalan yang ditimbulkan adalah ia juga terkandung minyak iaitu grape seed oil? J: Ya. S: Bagaimana untuk tentukan terdapatnya dadah tersebut? J: Kalau berbalik kepada kaedah analisis tadi untuk jalankan analisis kita perlu extract dadah daripada minyak tadi, saya gunakan ujian ini methanol disebabkan methanol tidak bercampur dengan minyak, saya tidak guna yang biasa dulu organic yang lain ia akan bercampur dengan minyak jadi saya gunakan methanol, jadi methanol akan menarik dadah dalam kes ini Delta-9-Tetrahydrocannnabinol untuk masuk ke dalam methanol dan kemudian hasil ekstrak tadi saya akan jalankan ujian Duguenois-Levine, ujian THC dan juga ujian GCMS. S: 3 ujian seperti mana yang kamu nyatakan dalam witness statement kamu? J: Ya. S: Jadi maksudnya untuk dadah ini sufficient untuk 3 ujian tersebut? J: Mencukupi disebabkan dalam reccomended method for testing Cannabis yang disediakan oleh UNODC. Cukup dengan 2 ujian confirm dadah. S: Method mengatakan cukup dengan 2 ujian namun kamu telah membuat more than that 3 ujian? J: Ya. ….. S: Jadi Lapuran Kimia yang kamu sediakan iaitu P 58 yang para-para yang mengatakan mempunyai kesan Delta-9- Tetrahydrocannabinol contohnya dalam oil, tumbuhan atau biskut memang mengandungi Delta-9-Tetrahydrocannabinol? J: Ya.” 19 From the aforesaid evidence of SP 6, he had conducted analysis to determine the presence of the drugs Delta-9-Tetrahydrocannabinol in the 1st and the 2nd charges. [52] The failure of the chemist, SP 6 to do any quantitative analysis of the drugs Delta-9-Tetrahydrocannabinol in the 1st and the 2nd charges is not fatal nor an issue because:

For the 1st and the 2nd charges, the dangerous drugs are Delta-9-Tetrahydrocannabinol which is listed under the 1st Schedule, Part 111, DDA. There is no requirement under the law that requires the actual weight to be stated for charges of trafficking for such drugs;

(ii) The provisions under section 37 (da), 39A (2) also do not state or lists that Delta-9-Tetrahydrocannabinol to be stipulated as to its weight; In other words, even possession of 0.01 ml of Delta-9- Tetrahydrocannabinol would be sufficient to attract an offence under the DDA;

(iii) The charges under the 1st and the 2nd charges against the appellant are offences under section 39B(1)(a) of the DDA. Hence, the elements that needs to be proved, with particular reference to Delta-9-Tetrahydrocannabinol are:

The drugs seized from the appellant are dangerous drugs as listed in the 1st Schedule of the DDA; 20

The dangerous drugs were under custody and control and possession of the appellant;

The appellant is trafficking in the said drugs.

(iv) In the present case, the learned trial Judge found that the prosecution had proved the elements of the offence for the 1st and the 2nd charges. This can be discerned from the findings of the learned trial Judge when he said: “[22] Berasaskan kepada alasan-alasan di atas saya berpuas hati bahawa satu kes prima facie telah dibuktikan oleh pihak pendakwaan terhadap OKT bagi pertuduhan bagi pertama dan kedua.” ……………….. “[61] Di akhir kes pendakwaan yang lalu Mahkamah ini telah memutuskan satu kes prima facie terhadap OKT mengenai ketiga-tiga pertuduhan. Mengenai pertuduhan pertama dan kedua Mahkamah ini mendapati elemen kawalan dan jagaan OKT ke atas dadah-dadah tersebut adalah di bawah seksyen 2 Akta Dadah Berbahaya 1952 dimana salah satu elemen di dalam seksyen itu telah berjaya dibuktikan oleh pihak pendakwaan iaitu “Manufacturing”…….”

Once the prosecution had proved the elements of possession and trafficking of the dangerous drugs Delta-9- Tetrahydrocannabinol, the amount or quantity of the same seized is irrelevant. The court is entitled to convict the 21 accused person under section 39B(1)(a) of the DDA for trafficking. [53] The learned trial Judge had referred to the evidence of SD 7 who had questioned the method used by the chemist, SP 6 in extracting the drugs from the liquid oil, was insufficient and was an outdated methodology. SD 7 testified that the chemist, SP 6 should have used an additional methodology, namely HPLC or High Performance Liquid Chromatography which uses solvents. However it was the findings of the learned trial Judge that SD 7 did not say in his testimony that the test which uses gas, namely GCMS, which was employed by SP 6, could not produce THC or Delta-9-Tetrahydrocannabinol. [54] It was also the findings of the learned trial Judge that when SD 7 was cross-examined, he said that he had never done any analysis on the drugs THC but had only attended courses on the same. SD 7 also said that he is not a qualified chemist certified by the Chemistry Department of Malaysia. His evidence appears purely theoretical in nature which was never put into practice, as compared to the evidence of SP 6 who is a qualified chemist certified by the Chemistry Department of Malaysia and had vast experience in the field of analysis of various types of drugs. Thus, SD 7 could not claim to have any expertise in analysis of drugs THC. Therefore, in the absence of the evidence of SD 7 as to expertise in THC, there is no expert evidence adduced by the defence to rebut the evidence of SP 6, the chemist, whose evidence the learned trial Judge had accepted as being credible. 22 [55] The learned trial Judge was thus justified in accepting the evidence of SP 6 as being credible as compared to the evidence of SD 7 that failed to challenge the evidence of SP 6. [56] The defence did not adduce any other evidence to challenge the evidence of SP 6 in this respect. Hence the evidence of SP 6 stands unrebutted. The learned trial Judge did not err in this respect. Ground 2: Whether the Dangerous Drugs in the 1st and the 2nd charges were medicinal cannabis and as such are not caught within the ambit of the DDA: [57] The defence contends that the learned trial Judge erred when he failed to appreciate that even if there were activities of manufacturing (which was denied) by the appellant, they were meant for public good as the appellant was processing it for sale of the same as medicinal marijuana or cannabis which activities were not caught within the mischief of the DDA. The medicinal marijuana is not dangerous drugs. [58] This contention by the defence was considered by the learned trial Judge at great length. The learned trial Judge had referred to certain excerpts of the testimony of the appellant where he agreed that the oil which he sold did not have any certification/verification by any body of doctors or medical bodies, or even the Health Ministry as to its medicinal properties or health benefits. [59] The expert witness called by the defence, SD 7 agreed that cannabis has never been verified/certified as having some health benefits 23 in our country and it has never been used as medicine in any hospitals in our country. [60] The learned trial Judge agreed with the submission by the learned DPP that in the absence of any acknowledgement or verification by the Ministry of Health or any medicinal practitioners of any medicinal or health benefits of cannabis, whatever claim by the defence that cannabis has some medicinal benefits only amounts to quackery or health fraud, which amounts to a promotion of fraudulent or ignorant medical practices. [61] The appellant had stated in his defence that he does not know that his act contravened any law of the country. However, such ignorance of the law is not a defence. The appellant knew that he was selling oils that contain cannabis. This has been considered by the learned trial Judge when he held in his judgment at RR Jilid 1 pages 41-42 when he said that: “[62] Pembelaan yang diketengahkan oleh OKT juga jelas bersifat penafian semata-mata terhadap ketiga-tiga pertuduhan, mengenai pertuduhan pertama, penjelasan OKT adalah walaupun dia tahu bahawa minyak tersebut mengandungi dadah Cannabis akan tetapi OKT berkata beliau mengisi ke dalam botol-botol kecil bertujuan untk perubatan bagi penyembuhan beberapa jenis penyakit. Pembelaan OKT ini tidak disokong oleh mana-mana keterangan daripada doktor atau disahkan oleh Kementerian Kesihatan Malaysia. Walaupun pembelaan ada memanggil SD 4, ibu OKT dan SD 6, pengguna minyak ganja tersebut akan tetapi kedua-dua keterangan mereka tidak disahkan oleh lapuran perubatan daripada mana-mana pegawai perubatan.” 24 [62] We do not find any flaw in such findings by the learned trial Judge as there is no supportive evidence from any medical bodies or from the Health Ministry to confirm the contention of the appellant that the drugs possesses medicinal properties which is beneficial to the public. The act of the appellant in manufacturing the drugs is subjected to the laws of the country, with particular reference to the DDA. There is no exemption nor license granted to the appellant to possess, manufacture, handle, process or for the sale of the drugs under the DDA or any laws for that matter. There is also no authorization provided under the DDA or any regulations thereunder which allows the appellant to possess the drugs. [63] Therefore the contention by the appellant that the manufacturing of the cannabis was for medicinal purposes for public good, are not caught within the mischief of the DDA, has no merits. There was no error by the learned trial Judge in making such findings which warrants our appellate intervention. [64] On the submission by the defence that there has been calls by the executive to review the charges against the appellant, at this stage, that is beyond our call. The appellant submits newspaper reports and articles evidencing these calls and suggestion by the executive. Our view is this: Once the charges are registered with the courts, save and except it being withdrawn by the Public Prosecutor, the court’s duty is to consider the evidence that was adduced by the prosecution before the courts and to decide according to law. It is the prerogative of the Public Prosecutor whether to charge a person under the relevant laws and the duty of the courts is to hear the matter and decide accordingly. 25 Ground 3: The failure by the learned trial Judge to make a finding whether the defence had rebutted or otherwise the presumption under section 37(da) of the DDA: [65] The learned trial Judge had made affirmative findings on possession for the 3rd charge (refer to RR Jilid 1, pages 22-24, paragraphs 23-27). As the weight of the drugs, cannabis had exceeded the minimum statutory requirement under section 37(da)(vi) of the DDA (i.e. 200 gram or more), the learned trial Judge had applied the presumption under section 37(da) of the DDA after making an affirmative findings of possession. Hence, the learned trial Judge did not err when he applied the said presumption. [66] The complaint by the defence is that, the learned trial Judge failed to appreciate the defence of the appellant. There is no merit in this contention as the learned trial Judge had clearly in his grounds considered the evidence given:

by the appellant in his defence (Refer to RR Jilid 1, pages 24- 27);

(ii) by SD 2 (Refer to RR Jilid 1, pages 28-29);

(iii) by SD 3 (Refer to RR Jilid 1, page 29);

(iv) by SD 4 and SD 5 (Refer to RR Jilid 1, pages 29-30). 26 [67] We find that the learned trial Judge had evaluated the evidence of the defence and also compared it with the evidence of the prosecution’s witnesses in relation to the charges preferred against the appellant. (RR Jilid 1, pages 30-36). [68] The appellant also raised the contention that the learned trial Judge failed to evaluate whether the appellant was in possession of the drugs. This is also misconceived as “possession” was considered by the learned trial Judge in paragraphs 61, 67 and 68 in his grounds. [69] It was also contended by the defence that the learned trial Judge erred when he did not rule at the end of the defence case that the appellant had rebutted section 37(da) of the DDA. We found that there is indeed a failure by the learned trial Judge to make the necessary finding on whether the presumption under section 37(da) of the DDA was rebutted. It is incumbent for the learned trial Judge to make a ruling whether section 37(da) had been rebutted. We refer to the cases of Seyedalireza Seyedhayatollah Ehteshhhamiardestani v PP [2014] 4 CLJ 406 and Ooi Hock Kheng v PP [2014] 5 MLJ 585. Given that the learned trial Judge did not make any finding whether the prosecution had rebutted the presumption of trafficking, we set aside the conviction under section 39B(2) in respect of the 3rd charge and substituted with a conviction under section 6 punishable under section 39A(2) of the DDA. 27 OTHER PERTINENT ISSUES: [70] Apart from the 3 main grounds that was orally submitted by the appellant at the hearing of the appeal before us, there are other pertinent points raised in the petition of appeal by the appellant which we will address in the following paragraphs. Issue on ‘manufacturing’: [71] It was raised in the petition of appeal (in ground no. 2 of the petition) that the appellant denied that there was manufacturing activities of the dangerous drugs at the house by the appellant. However, the learned trial Judge made findings that there was manufacturing by the appellant. We do not find any error in this respect as there was sufficient explanation given by the learned trial Judge on his findings that the appellant was indeed manufacturing Delta-9-Tetrahydrocannabinol. This was premised on the facts that there are apparatus and materials found on the premises for processing of cannabis to produce Delta-9-Tetrahydrocannabinol. From the facts, appellant utilises cannabis as the main ingredient to produce Delta-9-Tetrahydrocannabinol. [72] These findings by the learned trial Judge is justified premised upon the evidence of SP 6 who gave evidence as to the purpose of the apparatus and the paraphenalias which were found in the house. The relevant evidence of SP 6 are as follows: “Resin cannabis yang mengandungi delta-9- tetrahydrocannabinoil telah diekstrak dari tumbuhan genus cannabis atau dari tumbuhan cannabis sendiri telah diekstrak 28 menggunakan grape seed oil….saya syaki bahan tumbuhan cannabis telah dihancurkan menggunakan pengisar dan dipanas/dimasak menggunakan slow cooker. Berkemungkinan grape seed oil telah digunakan untuk memasak tumbuhan cannabis tersebut dan selepas dimasak ia ditapis dan hasil tapisan minyaknya dimasukkan di dalam botol-botol kecil.” [73] The evidence from Nadiah binti Rahmat (SP 10), the wife of the appellant, said in evidence that the manufacturing was done by the appellant using the materials as can be seen from the photographs in exhibit P56. The packaging was done by the appellant himself without any help from SP 10. [74] SP 10 in evidence said that she knows that the appellant was operating a business of selling herbal medicine as a remedy for cancer. However, she does not know the ingredients that the appellant uses to manufacture the herbal medicine. She also does not know that the appellant uses cannabis to produce the herbal medicine. [75] SP 10 also said that the appellant sells the herbal medicine through facebook although SP 10 could not recall the name of the facebook. Neither does she know how the appellant processed the herbal medicine as she usually works between 7.00 a.m. until 6.00 p.m. [76] Through the evidence of SP 10 and SP 2, there were no other occupants of the house when it was raided by the police at the material time other than the appellant and SP 10, his wife. This evidence was supported by SP 5, the owner of the house, who confirmed that the house was only occupied by the appellant and SP 10. 29 [77] The learned trial Judge agreed with the learned DPP that in cases of ‘manufacturing’ the element of possession need not be proven. The learned trial Judge found support in the case of Lee Boon Siah & Ors v PP and Other Appeals [2014] 2 MLJ 652 which held that: “The word ‘includes’ is a word of extension and not of definition (see Public Prosecutor v Hun Peng Khai & Ors [1984] 2 MLJ 318). In our view, the above characterising of the word ‘manufacture’ is extremely wide and can include other acts not explicitly categorised in s. 2. From the evidence that has been presented, in our judgment, the circumstances prevailing at the factory premises at the time in question show that all the accused persons were present there for the purpose of ‘manufacturing’ methamphetamines. Based on the discovery of numerous apparatus and chemical materials that can be used to process drugs found in the factory where all the five accused persons were arrested, the factory in question is as a matter of fact a drug manufacturing setting. The discovery of the apparatus and chemical materials support the finding that the said factory was used as a clandestine drug laboratory. For the proper determination of this issue, it must be borne in mind that, as stated in s. 2 of the DDA, the term ‘manufacture’ includes numerous and diverse processes or procedures namely making, producing, compounding, assembling, refining or transformation of the offending drugs. For that reason, in our judgment, unlike for example the act of keeping, concealing, storing, transporting and carrying dangerous drugs which constitute ‘trafficking’ as defined in s. of the DDA that involve the requirement of possession, the manufacturing of dangerous drugs as in the present case does not involve possession (see Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705 and Pendakwa Raya v Mansur bin Mohd Rashid & Anor [1996] 3 MLJ 560). In other words, possession of the impugned drugs need not 30 be proven in a case involving ‘manufacturing’ before trafficking definition in s. 2 of the DDA can be invoked.” (emphasis mine) [78] The facts in the present case also present strong circumstantial evidence which points to an irresistible inference that the appellant was manufacturing Delta-9-Tetrahydrocannabinol for the 1st and the 2nd charges. [79] The evidence also show the presence of small bottles and papers which was later turned into boxes to pack the drugs for purposes of sale. These facts show that the appellant had intention to sell the products manufactured. [80] The learned trial Judge found overwhelming evidence that pointed to the appellant being involved in the manufacturing of dangerous drugs which was evidenced by the following:

Exhibit P 60, the chemist report which stated that there are transparent cylinders, a transparent glass bottle “Alshifa”, 5 bottles “Basso”, 5 bottles “Borges”, blender jar “Tefal” where all bore traces of Delta-9-Tetrahydrocannabinol;

(ii) There were also apparatus which were found at the house like an electric pot “Media Slow Cooker”, 3 plastic funnels, 1 plastic jug, 1 cut into half bottle-bottom half, 2 cut plastic bottles-upper part, a box of “diamond” aluminium foil and 4 cloth strainer; 31

(iii) Grape Seed Oil, Cannabis, straws of cannabis, cannabis which had been soaked in oil. [81] SP 6, the chemist explained the purpose of the apparatus and the drugs materials which were found in the house as follows: “J: Daripada kes ini saya mensyaki bahawa resin Cannabis yang mengandungi Delta-9-Tetrahydrocannabinol telah diekstrak dari tumbuhan genus cannabis atau dari tumbuhan cannabis sendiri telah diekstrak menggunakan grape seed oil (biji anggur). Saya ulang balik. Saya mensyaki daripada kes ini bahan tumbuhan cannabis telah dihancurkan menggunakan pengisar dan dipanaskan/dimasak menggunakan slow cooker, dimasak dengan minyak di dalam slow cooker. Berkemungkinan grape seed oil telah digunakan untuk memasak tumbuhan cannabis tersebut dan selepas dimasak ia ditapis dan hasil tapisan cannabis tersebut dan selepas dimasak ia ditapis dan hasil tapisan minyaknya dimasukkan di dalam botol-botol kecil.” [82] Premised on the aforesaid, the issue raised by the appellant with regard to the issue of ‘manufacturing’ clearly has no merits. There has been no error by the learned trial Judge in arriving at his findings that based on the apparatus and the materials found in the house proved that the appellant was involved in the manufacturing of dangerous drugs. Issue on possession: [83] As to the charge of trafficking of cannabis, the appellant contends 32 that the learned trial Judge had erred when His Lordship failed to make any findings of possession (ground no. 4 in the petition). [84] We disagreed with the submission of the appellant. The learned trial Judge had made findings that the appellant had custody and control and actual possession of the dangerous drugs in the house. The evidence can be seen from the following:

The evidence of SP 7 who said that when he went into the said house, he saw apparatus for smoking drugs and bottles which was arranged;

(ii) The evidence of SP 7 and SP 9 with regards to the drugs cannabis which were seized by referring to the Search List and the Handing Over List;

(iii) The evidence of SP 5 who confirmed that the house was rented out to the appellant and that only the appellant and his wife (SP 10) stayed there;

(iv) The evidence of the neighbour (SP 2) to the appellant, who also confirmed that only the appellant and his wife (SP 10) stayed at the house;

SP 3 and SP 8 confirmed that the box and the stickers of label which were found in the appellant’s house were commissioned by the appellant himself from them;

(vi) The DNA of the appellant was found from the toothbrush and the shirt found in the house; 33

(vii) The wife of the appellant, SP 10 confirmed that the items in the house belongs to her husband, the appellant and it was handled by the appellant. All the items were packed by the appellant and SP 10 had nothing to do with the materials or the drugs found in the house;

(viii) SP 7 and SP 9 confirmed that when the police raided the house, only the appellant and his wife (SP 10) were present in the house;

(ix) SP 7 also in his evidence confirmed that the appellant followed the raiding officers when they were making a search of the house;

As to the issue of knowledge on the part of the appellant of the drugs, there are evidence of conduct of the appellant which are relevant which showed that the appellant had knowledge of the drugs. According to the evidence of SP 7 when he introduced himself as police officers to the appellant, the appellant was shocked and stunned. This amongst other evidence, according to the respondent showed that the appellant had knowledge of the drugs. [85] The learned trial Judge also made findings as to actual possession by the appellant of the cannabis on the 3rd charge as follows: “[23] Mengenai Pertuduhan Ketiga, menurut keterangan SP 7, beliau telah merampas dadah jenis Cannabis di bilik tidur OKT dan isterinya di tingkat atas di dalam beg kertas kuning (Eksibit P20) yang berada di atas katil di dalam bilik itu. Peguambela terpelajar berhujah bahawa dadah tersebut telah 34 gagal dibuktikan dijumpai di tempat kejadian kerana tidak dinyatakan di dalam borang bongkar yang disediakan oleh SP 7 dan tidak kelihatan di dalam mana-mana gambar di tempat kejadian, menurut peguambela lagi, SP 7 sendiri tidak membuat tandaan ke atas beg tersebut jika dirujuk kepada Nota Keterangan, semasa menjawab soalan dari YA Hakim. [24] Mengenai isu ini, walaupun SP 7 mengatakan beliau tidak catit di manakah beg P 20 ini dijumpai dan beliau gagal membuat tandaan ke atas beg ini, saya berpuas hati bahawa penjelasan dan pengakuan SP 7 tersebut adalah jujur, tidak mungkin SP 7 akan menganiayai OKT dengan memberikan keterangan tidak benar. [25] Disini saya merujuk kepada kes PP vs Abdul Latif bin Sakimin [2005] 6 MLJ 351, kes State of Kerala vs M.M. Mathew [1978] SCC 65 dan kes Lam Chun Wing Joe vs PP [2012] 7 MLJ 504, di dalam kes-kes di atas telah diputuskan, walaupun terdapat ketinggalan di dalam siasatan akan tetapi kejujuran penjawat awam tidak boleh dipertikaikan, tambahan pula di dalam kes-kes yang membawa hukuman mati. [26] Di dalam kes ini, dadah yang ditemui di dalam beg P 20 tersebut adalah sama jenis dengan dadah di dalam pertuduhan pertama dan kedua. Juga semasa SP 7 merampas dadah tersebut telah dijumpai dan dirampas dari premis tersebut di mana OKT mempunyai kawalan sepenuhnya ke atas premis tersebut. [27] Keterangan SP 8 (sic) , isteri OKT juga telah menolak anggapan pemilikan oleh orang lain selain daripada OKT ke atas dadah tersebut. Oleh itu Mahkamah ini memutuskan bahawa pihak pendakwaan juga telah berjaya membuktikan 35 elemen jagaan dan kawalan serta pengetahuan OKT mengenai dadah di dalam pertuduhan ketiga.” ……… [86] The learned trial Judge concluded as follows: “[61] Di akhir kes pendakwaan yang lalu Mahkamah ini telah memutuskan satu kes prima facie terhadap OKT mengenai ketiga-tiga pertuduhan. Mengenai pertuduhan pertama dan kedua Mahkamah ini mendapati elemen kawalan dan jagaan OKT ke atas dadah-dadah tersebut adalah dibawah seksyen 2 Akta Dadah Berbahaya 1952 di mana salah satu elemen di dalam seksyen itu telah berjaya di buktikan oleh pihak pendakwaan iaitu “Manufacturing”. Manakala pertuduhan ketiga pula di bawah seksyen 37 (da) Akta Dadah Berbahaya 1952. …….. [67] Saya berpuas hati bahawa pihak pendakwaan telah pun ”exclude of all other persons” seperti yang diputuskan di dalam kes Chan Pean Leon vs PP ( diatas) di mana pihak pendakwaan telah berbuat demikian dengan memanggil SP 10, seterusnya selepas menyoal balas SD 2 dan SD 3. [68] Saya bersetuju bahawa, pihak pendakwaan hanya di kehendaki oleh undang-undang untuk membuktikan elemen kawalan dan jagaan bukannya pemunyaan, di dalam kes ini fakta-fakta kes adalah melimpah ruah @ ”overwhelming” bagi menunjukkan OKT mempunyai kawalan dan jagaan serta pengetahuan ke atas dadah tersebut.” [87] The learned trial Judge in his grounds correctly made findings on the issue of actual possession at paragraphs 23-27, 61, 67 and 68 of his grounds, which we had stated in paragraph 86 of this judgment. 36 [88] Given the circumstances, the contention by the defence that the learned trial Judge erred when he failed to make findings on possession with regards to the trafficking charges, is clearly without merits. Conclusion: [89] Therefore, in respect of the 1st and the 2nd charges, we found no appealable error on the part of the learned trial Judge. The appeal in respect of the 1st and the 2nd charges is therefore dismissed. We affirmed the conviction and the death sentence in respect of the 1st and the 2nd charges against the appellant under the DDA. [90] In respect of the 3rd charge, we find there is merit in the appeal which warrants appellate intervention. We find the conviction under section 39B(1)(a) is unsafe. As such we set aside the conviction under section 39B(1)(a) on the 3rd charge. We find the appellant guilty of possession and we substituted it with a conviction under section 6 punishable under the section 39A(2). After hearing mitigation from the defence counsel, we are of the view that a sentence of 7 years imprisonment from the date of the arrest (7.12.2015) and 10 strokes of whipping is appropriate. Signed by: Zabariah Mohd Yusof Judge Court of Appeal, Putrajaya. Date: 18.5.2020 37 COUNSEL: Hisyam Teh Poh Teik for the Appellant [Messrs. Teh Poh Teik & Co] TPR Datuk Nazran bin Mohd Sham for the Respondent [Attorney General’s Chambers]