Muhammad Nasir Bin Mohammed Noor (PA-45A-9-02/2019)

The trial was held in the presence of former Judicial Commissioner Datuk Amirudin bin Abd Rahman (former JC) until the completion of defence case. The former JC however left the judiciary before he could deliver the judgment. [4] At the conclusion of the trial, this court had on 4.4.2023 convicted the accused on the above charge and he was sentenced to life imprisonment beginning the conviction date. By virtue of section 289(c) of the Criminal Procedure Code, the accused is spared the punishment of whipping. [5] Dissatisfied with the decision, the accused has appealed to Court of Appeal vide notice of appeal dated 13.4.2023 and the Appeal Notice is as follows: dijatuhkan oleh Tuan Hakim di Mahkamah Tinggi Butterworth, Pulau Pinang pada 4.4.2023 agar dapat diringankan berjalan dari t

The prosecution had called four (4) witnesses to prove its case against the accused. The prosecution witnesses are as follows: PW1 Khairul Zaman Mustafa (chemist) PW2 Inspektor Thanabalan Krishnan (Complainant / Raiding officer) PW3 ASP Norazhar Abdullah (Investigating Officer) PW4 Insp Nursyafikah Hashim (Replacement Investigating Officer) S/N nQGvtPugT0ykGznnU0KLjw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 30 CASE [7] That on 3/3/2018, SP2 had received a tip off about cannabis trafficking by a Malay man in a Proton Wira, bearing registration number BEX 7595 (Proton Wira BEX 7595) Ahmad Badawi, Kepala Batas, Penang. [8] At about 9 pm, PW2 with his team had conducted a patrol and surveillance in the area. At the same time, PW2 saw a Proton Wira W2 who was in a Proton Waja was behind the Proton Wira BEX 7595 at that time and PW2 could see there was only one occupant in the Proton Wira BEX 7595 at the material time and there was no one else getting in and out of the said car. The weather that night was clear and there were street lights on the road and traffic conditions with a low number of vehicles. [9] PW2 had tailed the Proton Wira BEX 7595 at a distance of about 50 metres for five minutes. The Proton Wira BEX 7595 then turned into Jalan Bertam Pertama and stopped in front of a row of shophouses under a street light. All the shops had been closed then. [10] PW2 had directed the raiding team in a 4WD Hilux to block the Proton Wira BEX 7595 from the front while the Proton Waja driven by SP2 blocked the Proton Wira BEX 7595 from behind. [11] PW2 alighted from his car and went to the Proton Wira BEX 7595 , PW2 discovered that all the windows were wound up, engine was still running and the car headlight was on. [12] PW PW2 also asked the driver to get out of the vehicle. When the door was opened PW2 said he immediately experienced a very strong S/N nQGvtPugT0ykGznnU0KLjw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 30 whiff of Cannabis. PW2 had noticed as the driver alighted from his car, he looked anxious and shocked. The driver was the accused in this case. [13] PW2 then carried out a bodily search on the accused but nothing incriminating was found on him. He further checked on the Proton Wira BEX 7595 in the presence of the accused and PW2 found a plastic sack with the word written on it in the back seat . The top of the sack was twisted. PW2 conducted a check on the sack and found 10 compressed blocks of dried plants suspected to be cannabis. [14] Other than the impugned dangerous drugs, PW2 also found a RHB bank statement under the accused Accused was arrested, the sack and 10 compressed blocks of dried plants was seized. He was brought back to the Narcotics Crime Investigation Department, Seberang Prai Utara district police station (IPD SPU). [15] At IPD SPU, PW2 weighed each of the compressed block and recorded the weight and marked all the exhibits seized on top of each block in the presence of the accused. After the process, PW2 kept all the seized items in the drawer of a cupboard in his room. The drawer and the room were locked. PW2 confirmed that he was the only one holding the keys to both the drawer and the room. PW2 also prepared a search list form and explained to the accused the contents of the search list, and he understood the explanation given. [16] Based on interrogation on the accused, PW2 had conducted another two raids and seized cannabis weighing almost ½ tonne and other drugs. The raids ended at 7.30 am the next day. S/N nQGvtPugT0ykGznnU0KLjw **Note : Serial number will be used to verify the originality of this document via eFILING portal

On 4.3.2018 at 6.10 pm, PW2 handed over the seized items and the to the Investigating officer (PW3). PW3 then weighed and marked all the seized items. PW3 also directed the photographer to take pictures of the seized items and the location where accused was arrested. [18] After taking photos, PW3 then placed all the seized items into a PDRM case box and marked and sealed with PDRM 40. The seized items were kept in a metal cupboard in PW keys to both the room and the cupboard were held by PW3. [19] On 7.3.2018, PW3 sent the seized items to chemist on duty Encik Khairuzzaman bin Mustafa (PW1) at the Jabatan Kimia Malaysia. PW1 in his testimony has confirmed receipt of the seized items and registered them with the laboratory number 18-FR-P-0189. The seized items were then kept in a saferoom of the department until the day the analysis was carried out. [20] The analysis was conducted, and the results confirmed that the substance in question was cannabis with a total weight of 9773.10 grams. Cannabis is listed in the First Schedule of the Dangerous Drugs Act 1952. PW1 provided the Chemist Report with laboratory number 18-FR-P-0189. [21] On 14.12.2018, all the exhibits which PW1 had examined and analysed were put back in their original packaging and returned to PW3 and sealed with the security seal of the Jabatan Kimia Malaysia. S/N nQGvtPugT0ykGznnU0KLjw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 30 BURDEN OF PROOF AT THE END OF PROSECUTION CASE [22] The burden upon the prosecution at the end of the prosecution case is to prove a prima facie case against the accused. Prima facie is defined in Section 180(4) of the Criminal Procedure Code that says: "[4] For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction." [23] This provision was discussed by the Court of Appeal in the case of Looi Kow Chai v. PP [2003] 1 CLJ 734; [2003] 2 MLJ 65 and also discussed by the Federal Court in the case of Balachandran v. PP [2005] 1 CLJ 85; [2005] 2 MLJ 301 which among others say as follows: [18]Section 180 of the CPC requires the prosecution to make out, upon a maximum evaluation, a prima facie case. Unless a prosecution witness recants upon his testimony or his credibility is destroyed, his testimony is taken into the consideration of whether a prima facie case has been made out, even though his testimony was challenged in cross-examination by putting to him that his testimony or any identified part thereof was untrue, incorrect or contradicted by other evidence, oral and/or documentary. If the evaluation of his answers and how he answers that determines his credibility, which may result in there being a finding there remained a gap or a reasonable doubt in the prosecution case, and which may be fatal to a conviction. Only if the court finds that the prosecution had made out a prima facie case is the accused called to enter upon his defence, where the accused is entitled to tender oral and/or exhibit evidence to provide substance to his defences and the questions put on his behalf to the prosecution witnesses. If sufficient to raise a reasonable doubt, he is entitled to be acquitted and discharged." S/N nQGvtPugT0ykGznnU0KLjw **Note : Serial number will be used to verify the originality of this document via eFILING portal

The Federal Court in the case of Magendran Mohan v. PP [2011] 1 CLJ 805 on page 824 gives the following guidance; "The test at the end of the prosecution's case is "prima facie case" based on a maximum evaluation of evidence. The evidence has to be scrutinized properly and not perfunctorily, cursorily or superficially. If the evaluation of the evidence results in doubts in the prosecution's case, then a prima facie case has not been made out. The defence ought not to be called merely to clear or clarify such doubts." [25] The Federal Court in the case of PP v. Mohd. Radzi Abu Bakar [2006] 1 CLJ 457 on page 467 has provided a guidance to be followed by the lower courts as follows: "For the guidance of the courts below, we summarise as follows the steps that should be taken by a trial court at the close of the prosecution's case:

the close of the prosecution's case, subject the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinise the credibility of each of the prosecution's witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused;

(ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is "Yes", then a prima facie case has been made out and the defence should be called. If the answer is "No" then, a prima facie case has not been made out and the accused should be acquitted;

(iii) after the defence is called, the accused elects to remain silent, then convict; S/N nQGvtPugT0ykGznnU0KLjw Page 8 of 30

(iv) after defence is called, the accused elects to give evidence, then go through the steps set out in Mat v. Public Prosecutor [1963] 1 LNS 82; [1963] MLJ 263." [26] Based on the principle mentioned above, it is the duty of the trial judge to analyse, evaluate and consider based on maximum evaluation on the prosecution evidence as soon as the prosecution close its case, and the Court shall consider whether the prosecution has made out a prima facie case against the accused. ELEMENTS OF THE OFFENCE TO BE PROVEN BY PROSECUTION [27] Thus, the prosecution has to prove the following essential elements in order to prove the offence under section 39B(1) DDA: the impugned drug is comprised in the First Schedule of Dangerous Drugs Act 1952 (Act 234) with net weight as specified in the charge; the drug was in the possession of accused at the relevant time; and the accused committed the act of trafficking at the relevant time. First Element: Drugs listed under Act 234 and the weight as mentioned in the charges [28] PW1 who is a chemist in Jabatan Kimia Malaysia, had in his evidence confirmed the receipt of the seized items from PW3 and analysed. PW1 also confirmed that the analysed items are cannabis as listed under the First Schedule of the Act 234 with a net weight of 9773.10 grams. S/N nQGvtPugT0ykGznnU0KLjw Page 9 of 30 [29] The same drugs were identified and confirmed by PW2, PW3 and PW4. The prosecution submitted that the chain of evidence on the handling of the seized drugs was not broken. The defence did not challenge the evidence on the chemical analysis by PW1 and the security measures and the handling of drugs seized from the accused until it reached this court and tendered as evidence. [30] Regarding the evidence, the prosecution had referred to various authorities in their submission, one of which was the Federal Court decision in the case of Munusamy Vengadasalam v. PP [1987] CLJ (Rep) 221 case as follows: "...the Court is entitled to accept the opinion of the expert of its face value, unless it is inherently incredible of the defence calls evidence in rebuttal by another expert to contradict the opinion. So long as some credible evidence is given by the Chemist to support his opinion, there is no necessity for him to go into details of what he did in the laboratory, step by step." [31] Therefore, the former JC had accepted the analyst result carried out by PW1 regarding the identity and quantity of the dangerous drugs as reported in the Chemist report. Second element: the drugs was in the possession of the accused [32] The prosecution submitted that the accused was in possession of the impugned dangerous drugs found in the sack which was placed at the back-passenger seat of the car belonging and driven by the accused at the material time. The defence however insisted that the drugs did not belong to the accused and said it was owned by an individual by the name of Nazri bin Mat Noor. S/N nQGvtPugT0ykGznnU0KLjw Page 10 of 30 [33] concept of knowledge, control and care as defined in the case of Chan Pean Leon v. PP [1956] 1 LNS 17; [1956] 22 MLJ 237, Thompson J at page 237 says: - "In my experience there is no question which magistrates find more difficult to deal with than this question of what amounts to "possession" for the purpose of criminal law. Much of this difficulty arises from a failure to appreciate that in reality there are two separate questions involved. The first is whether the accused party was in possession of the article in question and the second by reason of the application of the maxim actus non facit reum nisi mens sit rea is whether he had knowledge of the nature of the thing possessed." [34] The Federal Court in the case of Public Prosecutor v. Denish a/l Madhavan [2009] 2 MLJ 194; [2009] 2 CLJ 209 has discussed the Thompson J in case of Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17; [1956] MLJ 237 that says: 'possession' for the purposes of criminal law involves possession itself - which some authorities term 'custody' or 'control' - and knowledge of the nature of thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th Ed., p 304), in which the exclusive element mentioned by Taylor J appears: 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 powers 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 need. Once the elements needed to constitute possession are established, including the element of exclusive power to deal, when what is established is possession, not exclusive possession. So much for exclusive possession. S/N nQGvtPugT0ykGznnU0KLjw Page 11 of 30 [35] After a maximum evaluation on the prosecution evidence, the former JC has called for accused to enter his defence, meaning that he was satisfied that the element was proven where the accused had custody, care and control of the drugs based on the PW2 evidence, briefly as follows: a. During the raid, the dangerous drugs were found in the sack placed on the backseat of the Proton Wira BEX 7595. At the material time, the car was driven by the accused and he owned the car; b. The accused was caught red-handed with the offending exhibits, which was found in close proximity to him and there was no one else with the accused at the material time; c. The car did not stop anywhere from the time the car was spotted to the scene. d. Apart from that, also found was a RHB bank statement under the accused time, the car was in the control of the accused. e. PW2 who had on many occasions involved in drug raids could identify the smell of cannabis. At the material time, PW2 confirmed that the strong smell of cannabis came from inside the accused f. Since PW2 managed to smell the cannabis, it is through the inference showed that the accused was aware of the items in the sack was cannabis and not coconut husks. g. PW2 had also confirmed that the accused was panicked and frightened when getting out of the car. His condition proved that S/N nQGvtPugT0ykGznnU0KLjw Page 12 of 30 the accused had knowledge of the drugs as his conduct was relevant under section 8 of the Evidence Act 1950. [36] Based on the evidence and taking into consideration the law discussed in various cases, it is clear that at the material time the accused was the registered owner of the car and he was in charge of the car and no one else was found together with him. Hence, custody and control of the drugs by the accused have been established. Knowledge [37] The former JC has evaluated all the evidence adduced by the prosecution witnesses whether the accused had knowledge on the drugs in the sack found in the car driven by the accused. [38] The inference can be made that the accused had knowledge of the dangerous drugs based on the fact that the sack containing cannabis was the only item found in the car driven by the accused. The accused had definitely known about the existence of the drugs which was in large quantity that is 9773.10 grams (9.773 kilogrammes). The smell was strong and definitely different from the smell of coconut husks. This is a logical inference and were sufficient evidence to show that the accused had the requisite knowledge of the drugs. [39] PW2 has said that the accused was shocked when getting out of the car. Such conduct and behaviour proved that the accused had knowledge of the drugs as his conduct was relevant under section 8 of the Evidence Act 1950. S/N nQGvtPugT0ykGznnU0KLjw Page 13 of 30 [40] The former JC has made maximum evaluation of the prosecution evidence and he found out that the element of possession by control, care and knowledge of the accused over the drugs found in the sack in car has been successfully proven by the prosecution. In other words, the prosecution has succeeded in proving that the accused has physical possession of the car including the drugs found in it without having to resort to the presumption under section 37(d) of Act 234. Drug Trafficking Under Section 39b(1)(A) 234 Act [41] The accused was charged with the trafficking of cannabis weighing 9773.10 grams (9.773 kilogrammes) in accordance with the provision under Section s.37(da)(vi) Act 234. [42] The prosecution had successfully proved the element of trafficking by invoking the presumption under section 37(da)(vi) DDA 1952, as the elements of possession and knowledge were proven through direct evidence and circumstantial evidence. [43] Section 37(da)(vi) provides: "Section 37. Presumptions. In all proceedings under this Act or any regulation made thereunder- (da) any person who is found in possession of-

;

(ii) ;

(iii) ; (iiia) ; S/N nQGvtPugT0ykGznnU0KLjw Page 14 of 30

(iv) ;

;

(vi) 200 grammes or more in weight of cannabis, ...shall be presumed, until the contrary is proved, to be trafficking in the said drugs" [44] In the case of Henry Chan Kok Loon v. PP [2017] 1 LNS 1174 case, the Appeals Court says: "[67] In addition, the quantity of the drugs is very large ie, 1514.7 grams which is more than 1 kilogram and it is highly unlikely that it is for personal consumption. It was not suggested anyway that it was so. Hence the inference that, the drugs were carried for the purpose of trafficking." [45] The weight of the drugs as in the charge, which is almost 10kg, it is highly unlikely that it is for personal consumption. Hence the inference that, the drugs were carried for the purpose of trafficking. Moreover, there was not suggested by the defence that the seized drugs were for his own consumption. In PP v. Abdul Manaf Muhammad Hassan [2006] 2 CLJ 129 case, the court has said as follows: "And bearing in mind the large quantity of the drug involved, it cannot be seriously contended that the drug was for his own consumption. In any event, it was never suggested in his defence that it was so." [46] At the end of the prosecution case, the former JC has found that the prosecution had succeeded in proving a prima facie case and the accused was call to enter his defence. Three defence choices were explained to the accused and the accused has elected to give his S/N nQGvtPugT0ykGznnU0KLjw Page 15 of 30 sworn statement, thus subjecting himself to cross-examination by the prosecution. [47] In the defence case, only the accused gave his evidence as defence witness (DW1). The former JC has heard the sworn evidence by DW1. As I had mention earlier, that the former JC has ended his service before deciding at the end of the trial. [48] So I have made a decision at the end of the trial by examining the notes of evidence, viewing the RVT and CRT recordings, hearing the oral submission and reading the written submission by both sides. Defence Case [49] The defence case was simply that the accused had no knowledge of the contents of the sack found on the back-passenger seat of Proton Wira BEX 7595. [50] The accused testified that on 3.3.2018 while at home with his wife, Nazri came over to ask him to send a package containing samples of coconut husks to a buyer in Bertam Pertama. The accused agreed to Nazri's request. [51] Nazri has placed the sack at the back-Wira BEX 7595 driven by Nazri and the accused sat on the front . As they reached the scene, Nazri alighted from the car, leaving DW1 alone in the car. Five minutes later, he was raided by the raiding team led by PW2. [52] The accused has denied the drugs found in the sack belonged to him and said it actually belonged to Nazri. The accused testified that he knew Nazri since 2014 but did not remember his handphone number S/N nQGvtPugT0ykGznnU0KLjw Page 16 of 30 and he had owed RM26,000.00 from Nazri and he could not afford to settle it. Nazri had then asked him to build a hut behind his house to keep some equipment and fertiliser for the palm oil plantation. Decision At The End Of The Trial [53] I reminded myself that at the end of the defence case, the defence only needed to raise reasonable doubt against the prosecution case to earn an acquittal and the defence only needs to adduce evidence on the balance of probability to rebut the presumption of trafficking under Section 37(da)(vi) Act 234. [54] Section 182A KTJ states as below: "(1) At the conclusion of the trial, the court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

If the court finds that the prosecution has proved its case beyond reasonable doubt, the court shall find the accused guilty and he may be convicted on it.

If the court finds that the prosecution has not proved its case beyond reasonable doubt, the court shall record an order of acquittal." [55] For guidance on the application of the section, I am referring to a Federal Court decision in the case of Md Zainudin bin Raujan v. Public Prosecutor [2013] 4 CLJ 21 where The Federal Court says: "At the conclusion of the trial, s. 182A of the Criminal Procedure Code imposes a duty on the trial court to consider all the evidence adduced before it and to decide whether the prosecution has proved its case beyond reasonable doubt. The defence of the accused must be considered in the totality of the evidence adduced S/N nQGvtPugT0ykGznnU0KLjw Page 17 of 30 by the prosecution, as well as in the light of the well - established principles enunciated in Mat v. Public Prosecutor [1963] 1 LNS 82; [1963] 1 MLJ 263 with regard to the approach to be taken in evaluating the evidence of the defence. [56] I also refer to a landmark case of Mat v. Public Prosecutor [1963] 1 LNS 82, Suffian J (as he was then) outlined the principle below: "The position may be conveniently stated as follows:-

If you are satisfied beyond reasonable doubt as to the accused's guilt Convict.

If you accept or believe the accused's explanation Acquit.

If you do not accept or believe the accused's explanation.. Do not convict but consider the next steps below.

If you do not accept or believe the accused's explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt Convict.

If you do not accept or believe the accused's explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt Acquit." [57] In the case of PP v. Saimin & Ors [1971] 1 LNS 115 where Sharma J has defined the meaning of reasonable doubt as follows: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." "It has again been said that "reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which S/N nQGvtPugT0ykGznnU0KLjw Page 18 of 30 you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there.' Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence." [58] As to the burden to rebut the statutory presumption, I refer to the case of Mohamed Radhi bin Yaakob v. PP [1991] 1 CLJ Rep 311 which states that when the prosecution relies on the statutory presumption to prove an essential element of the charge, then the specific burden of proof compared to the general burden will shift to the defence to reject or rebut the presumption on the balance of probabilities as mentioned by Mohamed Azmi SCJ as follows: "It is a well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case. In the course of the prosecution case, the prosecution may of course rely on available statutory presumptions to prove one or more of the essential ingredients of the charge. When that occurs, the particular burden of proof as opposed to the general burden, shifts to the defence to rebut such presumptions on the balance of probabilities which from the defence point of view is heavier than the burden of casting a reasonable doubt, but it is certainly lighter than the burden of the prosecution to prove beyond reasonable doubt." S/N nQGvtPugT0ykGznnU0KLjw Page 19 of 30 "To earn an acquittal at the close of the case for the prosecution under s. 173(f) or s. 180 of the Criminal Procedure Code, the court must be satisfied that no case against the accused has been made out which if unrebutted would warrant his conviction (Munusamy v. Public Prosecutor). If defence is called, the duty of the accused is only to cast a reasonable doubt in the prosecution case. He is not required to prove his innocence beyond reasonable doubt." [59] As the prosecution had successfully prove a prima facie case, the defence has a burden to raise a reasonable doubt. Therefore it is my duty to analyse and consider the whole evidence presented by the accused. Third person Nazri bin Mat Noor [60] The defence raised the role of a third party that is Nazri who was said to be in the car before the raid was conducted. Nazri was depicted as the real owner of the sack that contained cannabis. Nazri was mentioned by the accused during investigation but could not provide full details. [61] PW . PW3 testified that in the caution statement, did not mention or involve any other parties as to the ownership of the drugs. [62] Based on my evaluation on the evidences of PW2, PW3 and DW1, I found out that the defence story on the existence of Nazri was not true and was made up. [63] If it was true that Nazri was involved, it would be appropriate for DW1 to give a full information on Nazri to PW3 to enable police to launch an investigation on Nazri. S/N nQGvtPugT0ykGznnU0KLjw Page 20 of 30 [64] As such, I am failure to give a full information about Nazri to the police in the investigation caused the not to be fulfilled, which is a justification for me to reject it. I am guided to the Tan Chee Khang lwn. PP [2016] 1 LNS 185 where the Appeals Court has said as follows: "Alcontara Notice" [22] Semasa Pegawai Penyiasat (SP9) memberi keterangan adalah diakui terdapat soalan balas mengenai "Ah Loon" dan "Ah Cheh" di m.s. 64 dan 65 RR Jld.

Walau bagaimanapun SP9 menafikan Perayu ada memberitahu nama "Ah Loon" atau "Ah Cheh". Apa yang diberitahu oleh Perayu kepada SP9 ialah penama "Ah Seng" tetapi Perayu tidak memberi butir-butir pengenalan "Ah Seng" menyebabkan SP9 tidak dapat menyiasat watak "Ah Seng". Dengan itu adalah jelas "Alcontara Notice" tidak dipatuhi atau dipenuhi (fulfilled)." [65] The defence chose not to present the caution statement even after the court has asked for it. In this issue, as a guidance I refer to Muhammad Kamil Abdullah & 1 anor vs PP [2019] 1 LNS 74 where the Court of Appeal in its judgment said as follows: "[20] Walaupun pihak ketiga "Rajah" telah ditimbulkan seawal kes pendakwaan, kegagalan pihak polis untuk menyiasat mengenai "Rajah" adalah tidak memudaratkan kes pendakwaan. Semasa pemeriksaan balas Pegawai Tangkapan (SP4) di m.s. 57 Rekod Rayuan Jld. 2, jelas menyatakan bahawa Perayu 1 tidak memberitahu SP4 bahawa dadah dan barang-barang lain yang berkaitan adalah kepunyaan "Rajah". Seterusnya dari penelitian kami, Perayu 1 juga tidak memberitahu Pegawai Penyiasat (SP5) mengenai butir-butir peribadi, alamat, nombor telefon dan sebagainya mengenai "Rajah" (rujuk m.s. 81 Rekod Rayuan Jld. 2). Kegagalan berbuat demikian bererti syarat-syarat "Alcontara Notice" tidak dipatuhi. Kami juga mendapati bahawa Percakapan S/N nQGvtPugT0ykGznnU0KLjw Page 21 of 30 Beramaran Perayu 1 tidak dikemukakan untuk menentukan sama ada butir-butir peribadi "Rajah" telah diberikan oleh Perayu 1 atau tidak. [21] Keperluan "Percakapan Beramaran" bukanlah meletakkan beban berlebihan ke atas pembelaan. lanya adalah wajar apabila Pegawai Tangkapan (SP4) menafikan bahawa Perayu 1 ada memberitahu SP4 bahawa dadah dan barang-barang berkaitan adalah kepunyaan "Rajah". Malah keterangan Pegawai Penyiasat (SP5) walaupun mengakui Perayu 1 ada memberitahu bahawa secara lisan mengenai "Rajah" tetapi Perayu 1 tidak memberitahu butir-butir peribadi "Rajah". [22] Dalam kes Mahkamah Persekutuan Teng Howe Sing v. PP [2009] 3 CLJ 733 seperti berikut: "On this point we would like to refer to the case of PP v. Badrulsham bin Baharom [1987] 1 LNS 72; [1988] 2 MLJ 58, wherein Lim Beng Choon J on page 591 said: So we are left with nothing more than the bare assertion of the accused that it was Noor Azlan who asked him to collect the bag on behalf of the former and that the accused himself had no knowledge of the contents of P3. If that be the case, one would hardly imagine that he would not have told either PW3 or PW5 at the railway station at Alor Setar at the time of his arrest that P3 belonged to Noor Azlan instead of saying that there was nothing in P3 . Applying the principle in Badrulsham's case to the facts of the instant case, the learned trial Judge was correct to conclude that the appellant had two opportunities to provide information about "Ho Seng", i.e. at the time of his arrest and five days later during recording of his cautioned statement but he failed to do so. We are therefore of the view that in the circumstances, the appellant's failure to provide relevant information about "Ho Seng" for the police to carry out a thorough investigation into the probability of his defence, entitled the learned trial judge to disbelieve him." S/N nQGvtPugT0ykGznnU0KLjw Page 22 of 30 [23] Atas alasan-alasan di atas, kami menolak rayuan Perayu 1 sebagai tidak bermerit [66] Considering the factors abovementioned and the authorities that have been referred to, I am of the opinion that the defence story of the existence of Nazri was made up and it is difficult to believe. In addition, the defence did not produce the caution statement for the court to decide whether the accused had given the personal information of Nazri. [67] That the defence version was bare denial and the defence has failed to cast a reasonable doubt on the prosecution case. It is a trite law that a bare denial is not a defence that can raise a reasonable doubt on the prosecution case. In the case of Mr Losali v. PP [2012] 2 CLJ 178; [2011] 1 LNS 501, it was decided by YA Abdul Malik Ishak (HMR) on page 709 para 54-55 as follows: [53] "The learned trial judge rightly held that the defence of the appellant was a bare denial. It is trite law that the defence of bare denial is no defence. What this amounts to is this. That the appellant did not offer any explanation to the two charges and merely denied the evidence advanced by the prosecution. That was indeed a perilous course to undertake. [54] The bare denial cannot in law raise a reasonable doubt and the appellant must be convicted for both the charges. Raja Azlan Shah CJ (Malaya) (as His Majesty then was) in D.A. Duncan v. Public Prosecutor [1980] 1 LNS 12; [1980] 2 MLJ 195, had this to say in regard to the defence of simple denial: "The defence was, in effect, a simple denial of the evidence connecting the appellant with the four boxes. We cannot see any plausible ground for saying that the four boxes were not his. In the circumstances of the prosecution evidence, the High Court came, S/N nQGvtPugT0ykGznnU0KLjw Page 23 of 30 in our view, to the correct conclusion that this denial did not cast a doubt on the prosecution case against the appellant." [68] Based on my maximum evaluation on the prosecution and defence case, it is my finding that the Defence did not adduce any evidence to allow me to decide whether the accused has successfully rebutted the presumption under s. 37(da)(vi) Act 234 on balance of probabilities. [69] The defence provided a simple denial regarding ownership and knowledge, but as established in numerous prior cases, mere denial alone cannot cast any reasonable doubt on the strength of the Prosecution's case. Upon careful examination, I concluded that the Prosecution has effectively proven the charges against the accused under section 39B(1)(a) DDA 1952 beyond any reasonable doubt." [70] The accused was pronounced guilty of the charges and convicted for the offense under section 39B(1)(a) DDA 1952, subsequently sentenced under section 39B(2) of the same Act. Sentencing [71] Prior to the sentencing, the court requested both the Prosecution and Defence to submit any relevant factors that would allow the court to exercise its discretion in imposing a life imprisonment, as stipulated in section 39B(2A) DDA 1952. [72] Under section 39B(2) DDA 1952, the court has a choice whether to impose a death sentence or life imprisonment and a minimum of 15 strokes of rotan. If it is a life imprisonment, there will be several conditions to be followed under Sub-section (2A) - S/N nQGvtPugT0ykGznnU0KLjw Page 24 of 30 "In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:

In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:

there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;

there was no involvement of agent provocateur; or

the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and

that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia. [73] In summary, the defence counsel argued that the accused assisted and cooperated with the police, leading to the discovery of a significant amount of cannabis in a hut located behind the accused's house. Due to this cooperation, they contend that the accused should be eligible for consideration of a life imprisonment sentence along with 15 strokes of rotan. [74] This court has taken into account the option of utilizing Section 39B(2A) DDA 1952 and has decided that provisions (a), (b), and (c) are applicable in this particular case. Consequently, this court has thoroughly examined and confirmed that requirement (d) has been satisfied, thus enabling this court to exercise its discretion in imposing a sentence of life imprisonment and 15 strokes of the rotan on the accused. [75] This court has also referred to the case of PP v. Mehrdad Rahmati Yadollah (Iran) & Anor [2020] 1 LNS 1587, where the decision of the S/N nQGvtPugT0ykGznnU0KLjw Page 25 of 30 Court of Appeal to impose the death penalty on the accused was overturned by the Federal Court to life imprisonment and 15 strokes of rotan. However, the Federal Court did not issue a Grounds of Judgment to ascertain the ratio decidendi behind the decision. [76] The Court of Appeal in Tan Aik Swan v. PP [2022] 1 LNS 1865 case interpretation of Section 39(B)(2A) as follows: "[90] We adopt the majority judgment in Mehrdad, supra and Taza, supra as the true interpretation of subsections 39B (2) and (2A). We wish to add that applying the purposive approach, where the interpretation of an Act is be undertaken with the purpose and object of the Act in mind (Federal Court decision in Bursa Malaysia Securities Bhd v. Mohd Afrizan Husain [2022] 4 CLJ 657), the following statements by the Minister Dato' Sri Azalina Othman Said as contained in the Hansard dated 30.11.2017 demonstrated clearly that the purpose and object of enacting section 39B(2) and 39B(2A) of Act 234 was to "memperkasakan agensi penguatkuasaan dalam memerangi pengedaran dadah dan melindungi masyarakat". We reproduced relevant excerpts of the Handsard - "Yang Berhormat asked me on the meaning of "and" at the end of Section 39B(2A)(d). The base which was decided was that the paragraph (d) is something that is mandatori that needed to be filled if the court wants to consider metingout the life imprisonment. In this case, (a), (b) dan (c) -(a), (b), (c) are read disjunctively but will be read conjunctively with (d). That means (d) is a main needs for the judge to use his/her discretion. Yang berhormat asked me on the definition of the enforcement agency, I refer to the clause available where the amendment mentioned (2C) as a purpose of subsection (2A) and (2B), S/N nQGvtPugT0ykGznnU0KLjw Page 26 of 30 "enforcement agency" means - now (2C) will be (2B) to the amendment. "The Royal Malaysia Police, the National Anti-Drugs Agency, the Royal Malaysian Customs Department, the Malaysian Maritime Enforcement Agency and any other agency as may be determined by the Minister". This is the answer mentioned in the amendment. Yang Berhormat Bagan Serai said what is the meaning of life imprisonment. According to Section 3, Criminal Justice Act 1953, life imprisonment means imprisonment for 30 years. Yang Berhormat also asked if the death sentence that was ineffective in preventing drug trafficking should be repealed. were convicted and sentenced to death by the court, traffickers from drug syndicates are still active as the returns are good. The repeal of the law is not a solution to the problem. However the amendment will strengthen the enforcement agencies in the war against drug trafficking. The accused will cooperate by giving information and they will be receive a life imprisonment and lashes of rotan. With the amendment, the government is taking a new strategy in their fight against drug trafficking and protect the interest of the community. Prison statistics between 2000 to 2017 shows 113 have been sentenced to death under Section 39B, DDA 1952 but only 11 have been hanged, equivalent to 82 per cent. A total of 122 people that is equivalent to 91.7 per cent have been pardoned and had their s [77] This court found out that PW2 and PW3 corroborated in their evidence during cross-examination that after interrogation, the accused provided information that resulted in the second raid at 12.05 am at the accused's house, where the police discovered drugs such as cannabis, heroin, and syabu. Subsequently, between 6.30 am and S/N nQGvtPugT0ykGznnU0KLjw

7.30 am, the police found a significant quantity of cannabis, weighing nearly half a ton, stored in a hut behind the accused's house. [78] This court agreed that the evidence of PW2 and PW3 have satisfied the criteria outlined in paragraph 39B(2A)(d) DDA 1952, which demonstrate that the accused had aided the police in disrupting a drug trafficking operation, particularly in Malaysia. Without the assistance provided by the accused, the drugs could have ended up in the hands of another criminal syndicate. [79] option other than imposing the mandatory death penalty on the accused for the said charge. Therefore, this Court has sentenced the accused to life imprisonment, commencing from the date of the sentence (4th April 2023). The accused is spared the punishment of whipping on account of section 289(c) of the Criminal Procedure Code which provides that males whom the Court considers to be more than fifty years of age, except males sentenced to whipping under section 376, 377C, 377CA or 377E of the Penal Code shall not be punishable with whipping. [80] The accused has filed a Notice of Appeal against the conviction and asked for the imprisonment to start from the date of arrest. [81] This Court is of the opinion that, based on maximum evaluation and assessment of the evidence of witnesses and in accordance with legal principles as discussed above, the conviction of the accused is safe and should be upheld. [82] Regarding the sentencing, this Court is guided by established legal position that when a person is found guilty and convicted of an S/N nQGvtPugT0ykGznnU0KLjw Page 28 of 30 offence as charged, the Court must impose a punishment as provided under the law. [83] This Court emphasizes that drug abuse, if not continuously and comprehensively addressed, will have negative repercussions on future generations. Drugs are like a cancer that invites various dangers: they not only destroy the abusers but also tarnish the reputation and image of the nation. [84] This court refers to the legal principle derived from the judgment of Augustine Paul HCJ (later HMP) in the case of PP v. Amir Hamzah Amir Mydin [2003] 1 LNS 736, wherein it was decided that: in the sentencing so that it will be a clear guidance on the seriousness of the offence in the eyes of the law. A preventive law fulfil the wish of lawmakers who have revised and increased sentencing on offences under the Act many times to control the spread of drug [85] Based on the above principles, it is the responsibility of the Court to impose a punishment that serves as a deterrent, acts as a lesson to the Accused, and sends a clear signal to society about the importance of not succumbing to the dangers of drug abuse. This Court emphasizes that there will be no tolerance or compromise for any drug law violations: severe punishment awaits the offenders. [86] In this case, the death penalty awaits the accused, and therefore, a prison sentence commencing from the date of the sentence is a just, reasonable, and fair punishment in line with the intentions of the Government and Parliament, which have taken various serious measures to prevent and control the menace of drug trafficking and related crimes. Therefore, the court must play its role by imposing a S/N nQGvtPugT0ykGznnU0KLjw Page 29 of 30 severe and deterrent punishment as prescribed by the law to emphasize the element of denunciation or condemnation. Conclusion [87] Considering that there is evidence justifying the exercise of the court's discretion to impose a sentence of life imprisonment under section 39B(2A), this Court hereby orders that the accused be sentenced to life imprisonment commencing from the date of conviction. By virtue of section 289(c) of the Criminal Procedure Code, the accused is spared the punishment of whipping. Dated: 7th June 2023 (FATHIYAH BINTI IDRIS) Judicial Commissioner High Court of Malaya Butterworth, Penang S/N nQGvtPugT0ykGznnU0KLjw Page 30 of 30 For the Prosecution: Muna binti Mohamed Jaafar Deputy Public Prosecutor Penang State Legal Advisor For the accused: Hussaini bin Abd. Rashid Advocates & Solicitor Messrs Hussaini & Co. Penang S/N nQGvtPugT0ykGznnU0KLjw