Muhammad Samri Bin Hashim v Pendakwa Raya (K-05(SH)-490-10/2017)

1 DALAM MAHKAMAH RAYUAN MALAYSIA [BIDANGKUASA RAYUAN] RAYUAN JENAYAH NO K-05(SH)-490-10/2017 ANTARA

1. MUHAMMAD SAMRI BIN HASHIM

2. SALINA BINTI DTIAUDDIN ...PERAYU-PERAYU DAN PENDAKWA RAYA ...RESPONDEN [Dalam Perkara Perbicaraan Jenayah No: 45A-31-09/2015 Di Dalam Mahkamah Tinggi Alor Setar Di Dalam Negeri Kedah Darul Aman Antara Pendakwa Raya Dan

1. Muhamad Samri bin Hashim

2. Salina binti Dtiauddin] ____________________________________________________________________ 2 CORAM: ZALEHA YUSOF, JCA ZABARIAH MOHD YUSOF, JCA YEW JEN KIE, JCA JUDGMENT [1] The appellants were charged with 2 charges under section 39B (1)

(ii) 1 transparent plastic packet (P7C) which also contained substance suspected to be syabu.

(ii) 1 iPad;

(iii) 1 Laptop brand Acer;

(iv) 1 Mac Book;

(vi) 1 bracelet; and

(vii) 1 necklace with locket. [22] The learned High Court Judge found that the conduct of the appellants showed that they had knowledge of the drugs which were at the foot of the front passenger seat. The said drugs were within clear sight and not concealed. The conduct of the 1st appellant, namely:

(ii) the said car did not stop despite the police telling the driver of the said car to stop through a loud hailer during the car chase. It was forced to a stop when it skidded and collided against the road divider; and

(iii) after colliding with the road divider causing the said car to stop, the 1st appellant refused to wind down the window on the driver’s side and also refused to open the car door despite being told to do so. The police had to break the window to open the said car and pulled the 1st appellant out of the said car. [23] It is therefore the finding of the learned High Court Judge that, premised on the location of the drugs recovered which was at the foot of the 2nd appellant without it being concealed and within sight, show that the appellants were in possession of them. Also based on the conduct of the appellants as aforesaid, it is obvious that both the appellants had knowledge of the existence of the drugs in question. [24] The evidence of SP 4, i.e. the sister in law of the 1st appellant, confirmed that the said car belongs to the 1st appellant but registered in the name of SP 4. At the time of the arrest, the said car was in the possession of the 1st appellant. SP 4 also confirmed that when the said car was sent to the workshop for repairs prior to the incident there was no package left in the said car. 10 [25] Ahmad Zarin bin Abdullah (SP 8), who is related to the 1st appellant, was the person who repaired the said car at the workshop. SP 8 had taken the car from Alor Setar and brought it back to Parit Panjang, Baling and sent it to one Zaidi to be repaired. After the car was repaired, SP 8 took the said car to his house. SP 8 said in evidence that the 1st appellant with 2 of his friends came to collect the said car from his house. SP 8 confirmed that at the time when he handed over the said car to the 1st appellant there was nothing left inside. The learned High Court Judge found that based on the testimonies of SP 4 and SP 8 it negated the possibility that the black plastic bag and the Colgate box was left in the car when it came back after being repaired. [26] The 1st appellant raised the point that it was not possible for him to be the driver of the said car as he has only one leg (his left leg). In this regard, the learned High Court Judge made findings that despite the 1st appellant being a handicapped or “OKU”, i.e. that he has no right leg, there was ample evidence from SP 4 who said that she knew that the 1st appellant could drive a car provided that it is an automatic car. SP 4 said she knew because every time they went back to their kampung, it was the 1st appellant who drove the said car. The evidence of SP 4 has not been challenged nor discredited. It was in evidence that the said car is an automatic car. [27] On the element of trafficking, the learned High Court Judge invoked the presumption of section 37 (da) of the DDA 1952. [28] Given the aforesaid, the learned High Court Judge called upon both appellants to enter their defence. 11 B.1. Defence of the 1st appellant: [29] Both the appellants opted to give their defence on oath. [30] The defence of the 1st appellant is that at or around 11.3.2014, he received a call from his friend Shukor from Gurun, Kedah that the said car was already repaired in Parit Panjang and asked that the 1st appellant to collect the car. Shukor had taken the car to Gurun and asked the 1st appellant to collect it back. [31] The 1st appellant had requested his girlfriend, i.e. the 2nd appellant to follow him to Gurun to take the said car. [32] Before proceeding to Gurun, the 1st appellant had contacted his friend, Mat Amin who lives in Pendang and asked him to follow him to Gurun to collect the said car, as Mat Amin is expert on gear boxes. [33] The 1st and the 2nd appellants then proceeded to Mat Amin’s house in a Proton Wira driven by the 2nd appellant. They arrived at Mat Amin’s house at 1.00 pm and met with Mat Amin’s friend. Then the 1st appellant, Mat Amin and Mat Amin’s friend proceeded to Shukor’s house to fetch the said car . The 2nd appellant was left at Mat Amin’s house. [34] When they arrived at Shukor’s house at 2.00 p.m. Shukor handed over the said car and keys to the 1st appellant. On the way back to Mat Amin’s house, the said car was driven by Mat Amin, whilst the Proton Wira was driven by Mat Amin’s friend. They arrived at Mat Amin’s house at 4.00 or 5.00 p.m. 12 [35] At Mat Amin’s house, Mat Amin and his friend examined the car again whilst the 1st and the 2nd appellants waited in the hall of the house. As it was already night time, Mat Amin offered to send the 1st and the 2nd appellants back to Bukit Tambun as the route back to Bukit Tambun is far and Mat Amin could test whether the gear box was functioning properly. [36] Whilst getting ready to go back, at around 11.00 p.m. the 1st appellant asked Mat Amin to take the things in the Proton Wira i.e. the laptop bag, the iPad Bag and transfer it to the Proton Perdana and to be put at the front seat. The 2nd appellant then went to sit at the front passenger seat carrying with her a bag containing cash whilst the 1st appellant sat at the back seat as he was tired and wished to take a rest. The Proton Wira was left at Mat Amin’s house. [37] When the said car entered the highway at Pendang, the 1st appellant said that he fell asleep and only woke up when the 2nd appellant told him that the said car was being chased by the police. The 1st appellant asked Mat Amin to stop the said car at the side of the road but Mat Amin refused and there was a car chase by the police. [38] However the said car had skidded at Kulim and according to the 1st appellant, Mat Amin immediately came out from the said car and absconded. About 10-15 seconds later, the police patrol car arrived behind the said car. The police had broken the window of the said car at the driver’s side and asked where was the driver and he was pulled out from the car. The 2nd appellant came out of the car voluntarily. 13 B.2. Defence of the 2nd appellant: [39] The defence of the 2nd appellant is the same as the 1st appellant supporting the evidence of the 1st appellant. B.

3. The findings of the learned high Court Judge at the end of the defence case: [40] The learned High Court Judge was of the view that the defence of the appellants were mere afterthoughts. [41] The character “Mat Amin” was only raised at the defence stage. It was never disclosed to the Investigating Officer, hence there was no investigation carried out to verify the version of the appellants. The story that the Proton Wira was left at Mat Amin’s house could have been told to the Investigating Officer to enable the police to check as to the veracity of the appellants’ story. [42] The learned High Court Judge found it inherently incredible that the 1st appellant had contacted Mat Amin (who was allegedly an expert in gear box) to help him fetch the Proton Perdana whereby the gear box had already been repaired. If Mat Amin is an expert in gear boxes why bother sending the said car to Parit Panjang, Baling to be repaired. Moreover the appellants live in Bukit Tambun and Gurun is midway between Bukit Tambun to Pendang. Why the need to come down to Pendang and turn back to Gurun to fetch the said car? [43] What the learned High Court Judge found more incredible is the fact that when they arrived back to Mat Amin’s house at 4.00 - 5.00 p.m., 14 the 1st appellant went inside the house whilst Mat Amin and his friend were tinkering with the said car until 11.00 p.m. The learned High Court Judge questioned the necessity for Mat Amin and his friend to further examine the said car when the said car had already been repaired. [44] The 1st appellant raised the issue that he could not have driven the said car as he has no right leg. The learned High Court Judge had elaborated on this in paragraphs 16 and 28 of the grounds. In fact the learned High Court Judge, (upon the application by the defence counsel to demonstrate to court) had asked the 1st appellant to sit at the driver’s seat of the said car to ascertain whether the 1st appellant could moved his left leg. From the observation of the learned High Court Judge, there was no problem for the 1st appellant to use his left leg to drive the said car. The evidence of the 1st appellant shows that the 1st appellant can drive a car but only limited to kampung roads. The learned High Court Judge was of the view that kampung roads are more difficult to drive a car as more often than not the roads are narrow as compared to highways where there are 2 lanes in one direction. Therefore it is the learned High Court Judge’s findings that the 1st appellant has no problem in driving a car in highways despite having only one leg. [45] The learned High Court Judge found that the appellants failed to raise a reasonable doubt on the prosecution’s case. The Defence also failed to rebut the presumption of trafficking under section 37 (da) DDA

1952. The 1st appellant and the 2nd appellant were convicted under section 39B (1) (a) of the DDA 1952 under the 1st charge and convicted under section 12 (2) of the DDA 1952 under the 2nd charge (paragraphs 30 and 31 of the grounds). The sentence imposed under the 1st charge is death by hanging whilst under the 2nd charge, the appellants were 15 sentenced to 10 years imprisonment from the date of arrest (12.3.2015). For the 1st appellant he was also imposed with an additional sentence of 10 strokes of whipping for the 2nd charge. OUR FINDINGS [46] In proving the charges against both of the appellants, the prosecution has to prove the following elements for each of the charge:

(ii) the said car only stopped when it had skidded near a divider. Still the appellants refused to open the said car’s window and door. The window had to be broken to enable the police to open the car door from inside. [52] Those were the evidence at the prosecution’s stage. We will deal first with the 1st appellant on the issue of possession. [53] The drugs were found not at the foot of the driver’s seat but at the foot of the front passenger seat. It is not proximate to the 1st appellant but close nevertheless to the 1st appellant. There was already a finding that it was the 1st appellant who was driving the said car premised on the evidence of SP 3 and SP 2. There was no challenge as to the credibility of the prosecution witnesses and there is no reason to doubt their evidence. 19 [54] As it was the 1st appellant who was driving the said car, why did the 1st appellant speed off at such speed of 130-150km/hour when he was told to move his car to the road shoulder and wait there for further inspection by the police? What made the 1st appellant drive off and flee instead of just stopping the said car and wait for the police to examine him further, if, it is true that the 1st appellant did not know the presence of the drugs in the said car. [55] In addition, why did the 1st appellant refuse to open the car door and window, when it stopped the 2nd time after it collided with the road divider after the car chase? Instead, the police had to break open the car window to open the car door from inside. If not for the car knocking into a divider, the 1st appellant would have continued speeding to get away from the police patrol car. Why the need to run off with the said car if the 1st appellant had nothing to hide or nothing to fear? After all there was nothing incriminating found yet for the appellants to speed off from the police. Even if assuming that what the appellants said was true, that there was a third person present in the car during the car chase (which we found as not proven), who had subsequently absconded when the car stopped the second time, why then the reluctance of the 1st appellant in opening the car door when told by the police to do so? The police had to break open the car window to open the car door from inside. If it is true that the appellants were innocent and oblivious to the presence of the drugs in the said car, surely the 1st appellant had nothing to fear and would have willingly opened the car door. But that was not the case in the present appeal. The running away from the police the 1st time, the car chase and the reluctance to open the car door when it stopped the 2nd time, are inferences that the 1st appellant had knowledge of the presence of the drugs. 20 [56] Taking into totality of the conduct of the 1st appellant who had control of the said car, his act of driving the car away from the police falls under section 8 of the Evidence Act 1950. Pursuant to section 9 of the Evidence Act 1950 the 1st appellant must be called to explain why he acted the way he did. [57] There was also the evidence that the 1st appellant was the owner of the said car despite it being registered under SP 4’s name. In any event when the arrest was made the said car was in possession of the 1st appellant. Although there was evidence to show that before the arrest, the said car was sent for repairs, there was also ample evidence to show that the mechanic (SP 8) who did the repairs did not leave anything behind in the said car before he sent it over to be collected by the 1st appellant. The learned High Court Judge had addressed this in his grounds of judgment at paragraphs 15 and 27. In any event, why would the mechanic leave the drugs in the said car which did not belong to him and send the car back to the owner with the drugs in the car. [58] It was in evidence at the defence stage that a person by the name of Mat Amin was the one who had access to the car before the car was taken by the 1st appellant, implying that it was Mat Amin who had placed the drugs in the said car. It was also stated in the defence of the 1st appellant that it was Mat Amin who had driven the said car before the car knocked against the divider of the road after the car chase with the police patrol car. After the said car knocked the divider and was forced to a stop, Mat Amin had come out of the car and fled. These version of the defence appears to be an afterthought because, firstly, the name of Mat Amin was never mentioned to the police when the appellants were arrested. It was only raised at the defence stage. Secondly, the story of Mat Amin is highly 21 improbable. Why would Mat Amin take all the trouble to place the drugs in the Proton Perdana, which was not his car in the first place? The evidence was that Mat Amin volunteered to drive the appellants back to Bukit Tambun as Bukit Tambun was far for the appellants to be driving in the middle of the night. If the intention of Mat Amin was to help the appellants to go back to Bukit Tambun, how did the drugs at the foot of the passenger seat come into the picture. Why would Mat Amin place the drugs in the said car when the intention of him driving the said car was to send the appellants back home to Bukit Tambun. This was never explained by the defence. The version by the 1st appellant do not make any sense. [59] At the defence stage the 1st appellant said he did mention to the police and the Investigating Officer about Mat Amin. However, a perusal of the evidence of SP 2 at the prosecution’s stage, show that there were no questions raised to SP 2 regarding to Mat Amin by the defence during the cross examination stage. What was suggested was merely that the 1st appellant was not the one driving the said car. The learned High Court Judge had also perused and considered the questions which were directed to the Investigating Officer at the prosecution’s stage and found that nothing was ever suggested to him on Mat Amin. Therefore, it is of no surprise that the investigation was never directed towards the existence of “Mat Amin”. In this respect the Supreme Court’s decision in PP v Lin Lian Chen [1992] 1 CLJ Rep 285 is relevant wherein the Court held as follows: “The trial Judge appreciated correct law when he held, as he did in fact hold, that the defence are entitled, through cross examination of prosecution witnesses, to put its case at the earliest possible stage. Indeed, it behoves the defence to do so, for we need hardly say that if 22 a defence is sprung in Court for the first time when the accused makes his defence from the witness box or the dock, so that the prosecution is taken by surprise, the accused runs the risk of being criticized for having kept his defence “up his sleeve”. So to speak, and it being branded as a recent invention.” (Also refer to Alcontara a/l Ambross Anthony v PP [1996] 1 CLJ 705, Mohamad Fauzi Ridzwan & Anor v PP [2006] 1 CLJ 478, Khairidin Sufi v PP [2012] 6 CLJ 457). [60] The learned High Court Judge found that “Pembelaan tertuduh-tertuduh adalah penafian semata-mata dan satu pemikiran terkemudian (afterthought) dan recent invention semata-mata.” The learned High Court Judge was not plainly wrong in his findings, that “Mat Amin” appears to be an afterthought on the part of the 1st appellant, given the aforesaid evidence. We do not find any error on the part of the learned High Court Judge in making such findings. [61] It was submitted by the 1st appellant’s counsel that the forfeiture of property (FOP) claim by the 1st appellant is not relevant in calling for defence of 1st appellant. In this regard reference is made to paragraphs 13 and 14 of the grounds of the learned High Court Judge. It was submitted that the FOP claim and the drug charges are 2 different proceedings and have no relevance to each other. The FOP claim cannot be taken to mean that the 1st appellant admitted that the drugs are his and neither can it be taken to infer that the 1st appellant was in possession of the drugs. Counsel submitted that the learned High Court Judge had placed too much weight and importance on the FOP claim. What needs to be proven is custody and control of the drugs. Hence counsel for the 1st appellant submitted that the learned High Court Judge had made an 23 erroneous finding on possession on the 1st appellant based on the FOP claim. [62] However, our perusal of paragraphs 13 and 14 of the learned High Court Judge’s grounds, does not appear to be so. We say this for the following reason. A careful reading of paragraphs 13 and 14 of the grounds, disclose that His Lordship did not base his findings on possession, solely on the FOP claim. We hereby reproduced paragraphs 13 and 14 of the grounds for ease and clarity of reference: [13] “SP 2 mengesahkan bahawa barang kes yang dirampas termasuk dadah tersebut dijumpai ditempat letak kaki penumpang hadapan dimana diduduki oleh tertuduh kedua. Kedudukan barang kes tersebut tidak tersorok dan jelas boleh dilihat oleh SP 2 semasa pemeriksaan kereta tersebut. Tambahan pula ASP Mustafa Kamal B Rashid (SP 5) iaitu Pegawai Turus Bahagian Perlucutan Harta, Jabatan Siasatan jenayah Narkotik, IPK Kedah mengesahkan bahawa tertuduh pertama telah membuat tuntutan keatas kelapan-lapan barang rampasan (Kecuali dadah berbahaya) yang kesemuanya dijumpai ditempat letak kaki penumpang hadapan kereta tersebut iaitu antaranya wang tunai RM131,187.00, sebuah IPad, satu laptop jenama Acer, satu MacBook, dua jamtangan, seutas rantai tangan dan seutas rantai leher bersama loket. Kesemua barang kes ini dijumpai iaitu berhampiran kaki tertuduh kedua dan berdekatan juga dengan kedudukan tertuduh pertama. [14] Selain daripada itu, kelakuan tertuduh-tertuduh juga menunjukkan bahawa mereka mempunyai pengetahuan berkaitan dadah yang terdapat ditempat letak kaki dibahagian penumpang hadapan. ….” The words as we underscored in both paragraphs show that the evidence of the FOP claim was applied by the learned High Court Judge “in addition to” and “apart from” the other evidence. Therefore, there is no error committed by the learned High Court Judge by referring to the FOP 24 claim in addition to other evidence to make a finding of possession on the 1st appellant. [63] The 1st appellant also raised the issue that he, having one leg (his left leg) could not have driven the said car at a speed of 130/150 km/hour. This issue was addressed by the learned High Court Judge at paragraph 16 of the grounds wherein he found that the said car was an automatic car and he took judicial notice that to drive an automatic car, one need not have 2 legs. In addition there was also the evidence of SP 4, the sister in law of the 1st appellant who testified that it was the 1st appellant who drives the said car whenever they all go back to their kampung. The evidence of SP 4 was never challenged by the defence (Refer to Wong Swee Chin v PP (1981) 1 MLJ 212.). The learned High Court Judge had conducted a demonstration whereby the 1st appellant was made to sit in the said car and the learned High Court Judge had made a finding of fact that the 1st appellant was able to drive the said car, more so as the said car was an automatic car. [64] On the issue of possession, the judgment of the Federal Court in PP v Abdul Rahman Akif [2007] 4 CLJ 337 explained the issue of possession and knowledge: “21. For the element of ‘possession’ (within the meaning of s. 17 of the Misuse of Drugs Act) to be established, it must not only be shown that the accused had physical control of the drugs at the relevant time; the prosecution must also prove that the accused possessed the requisite knowledge as to the contents of what he was carrying; see Warner v Metropolitan Police Commissioner [1969] 2 AC 256; Tan Ah Tee & Anor v PP [1978] 1 LNS 193; [1978-1979] SLR 211; [1980] 1 MLJ 49. In the course of the appeal before us, counsel for the appellant relied heavily on the fact that the contents of the bundles were securely 25 wrapped in newspapers and could not be identified. We were accordingly invited to draw the inference that the appellant had no knowledge of the contents of the bundles.

22. We were unable to accede to this request. While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlars could escape liability simply by ensuring that any drugs coming into their possession are first securely sealed in opaque wrappings. Rather, the court must appraise the entire facts of the case to see if the accused’s claim to ignorance is credible. As Yong Pung How CJ remarked in PP v Hla Win [1955] 2 SLR 424 (at p.438): “In the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses…” In Tan Ah Tee & Anor v PP [1978] 1 LNS 193, Wee Chong Jin CJ delivering the judgment of the court said at [1980] 1 MLJ 49 at 52; “…..even if there were no statutory presumption available to the prosecution, once the prosecution had proved the fact of physical control or possession of the plastic bag and the circumstances in which this was required by and remained with the second appellant, the trial judges would be justified in finding that she had possession of the contents of the plastic bag within the meaning of the Act unless she gave an explanation of the physical fact which the trial judges accepted or which raised a doubt in their minds that she had possession of the contents within the meaning of the Act.” [65] Counsel for the 1st appellant referred us to the case of Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113 (Ibrahim Mohamad) where the Federal Court held that: 26 “The law is well settled that having only custody or control over the said drugs is insufficient to establish “Possession”.” [66] Coming back to the facts in the present case, it is clear that the car was in the possession of the 1st appellant at the material time. Although the drugs were located at the front passenger seat of the 2nd appellant, in view of the evidence aforesaid, we found that the learned High Court Judge did not err when he found that the 1st appellant had custody and control of the drugs. The evidence show that the said car belongs to him and he is in physical control as to the car and what was in the car. His contemporaneous conduct when accosted by the police and the car chase pointed towards his guilt which meant he knew that what he had in the said car was drugs. There was no explanation given by him as to why he was speeding away from the police while refusing to stop the said car when told to do so, save and except for his evidence that the said car was driven by Mat Amin. Hence as far as the 1st appellant is concerned, we find that the learned High Court Judge did not err in his finding that the 1st appellant has custody and control and knowledge of the drugs. The 1st appellant relied on the judgment of Zulkefli Makinuddin FCJ in Ibrahim Mohamad whereby the facts in that case also involved the accused persons stopping at police road block and the court found that the accused persons has no prior knowledge of the present of the drugs in the car that they were in. It is pertinent to refer to the relevant part of the judgment: “ As regards the present case it is noted that the road leading to the “road block” is a straight road and therefore the first accused being the driver of the vehicle could have easily seen the “road block” miles away. The fact that the first accused did not make a u-turn or attempt to run away before approaching the “road block” can give rise to an inference that both the first accused and the second accused had no knowledge of the drugs in the vehicle. 27 [18] To further support the contention that the first accused and the second accused had no knowledge of the drugs is the fact that both of them upon being asked to stop at the “road block” had co-operated with the police. The first accused alighted from the car, produced his driving identity card and opened the boot upon being instructed to do so by the police officer. If both of them had prior knowledge of the drugs in question, they could have bolted away immediately upon being ask to alight from the vehicle or even before reaching the “road block” It is apparent that this factual matrix of the case was overlooked and failed to be duly appreciated by the courts below. The conduct of the first accused and the second accused are consistent with their contention that both of them only fled upon being told that there were drugs in the vehicle.” The factual matrix of Ibrahim Mohamad at first blush appears to be the same but the facts are distinguishable from our present case. In Ibrahim Mohammad’s case, the accused persons were stopped at the road block for inspection. Upon inspection and upon the police discovering the drugs and the accused persons being told that the items found at the boot were drugs, the accused persons fled. Comparing the facts in our present case, although the appellants stopped at the road block, they fled before the police could do any inspection on them and the said car. There was no discovery of any drugs or incriminating items yet by the police on the appellants or in the said car at this point. In addition, there was a car chase between the police car and the appellants. The conduct of the 1st appellant in fleeing in the said car even before any inspection by the police, and speeding away from the police during the car chase, refusing to open the car door and window at the 2nd stop, show that the facts are poles apart from Ibrahim Mohammad’s case. Hence the reliance by the counsel of the 1st appellant on Ibrahim Mohammad’s case does not help the 1st appellant. In the present case, the prior conduct of the 1st appellant before his arrest show 28 that the 1st appellant has the mens rea of knowledge which is relevant under section 8 (2) of the Evidence Act 1950. [67] With regards to the 2nd appellant, the learned High Court Judge found that the elements of possession have been proven against her. His Lordship premised it on the items that were seized were situated at the foot of the seat where the 2nd appellant was sitting, and that the location of the drugs was not concealed nor hidden. [68] We were concerned with the findings of the learned High Court Judge that pinned the element of knowledge, as part of the element of possession, on the 2nd appellant premised on the conduct of the 1st appellant. A perusal of the grounds of the learned High Court Judge from paragraph 14 disclosed such findings. For ease of reference we reproduced herein below such findings: “[14] Selain daripada itu, kelakuan tertuduh-tertuduh juga menunjukkan bahawa mereka mempunyai pengetahuan berkaitan dadah yang terdapat ditempat letak kaki dibahagian penumpang hadapan. Selain daripada kedudukan dadah tersebut yang bukannya dalam keadaan tersorok tetapi berada dibahagian kaki penumpang hadapan iaitu tertuduh kedua, fakta bahawa tertuduh pertama membuat tuntutan keatas barangan yang dirampas yang berada bersama-sama dadah berbahaya tersebut sebagai miliknya, perbuatan tertuduh pertama memecut kereta tersebut dalam lingkungan 130 ke 150 km/j sejauh hampir 30-40 kilometer dan melanggar palang tol di susur keluar Bukit Tambun menunjukkan bahawa tertuduh-tertuduh tahu tentang kewujudan dadah yang berada didalam kereta tersebut. Tambahan pula daripada keterangan saksi pendakwaan adalah jelas bahawa kereta tersebut dipecut setelah diarahkan untuk ketepi oleh SP 3 yang mengawal di papan tanda sekatan jalanraya untuk tujuan pemeriksaan lanjut. 29 Kereta tersebut yang di pandu tertuduh pertama juga tidak berhenti setelah dikejar hampr 30-40 kilometer akibat terbabas. Malahan semasa kereta tersebut berhenti pun tertuduh-tertuduh telah gagal memberi kerjasama untuk membuka pintu kereta dan kelaur apabila disuruh oleh SP 2 sehinggakan cermin tingkap dibahagian pemandu terpaksa dipecahkan untuk membuka pintu dibahagian pemandu…..” [69] We are of the view that the act of speeding off when he was told to move over to the shoulder of the road by the police for further examination at the road block and the car chase was within the control of the 1st appellant, not the 2nd appellant. Further there was no evidence that at the second time when the said car stopped, the 2nd appellant refused to give cooperation to the police. The evidence was that the 2nd appellant came out of the car after the window at the driver’s side was broken by the police and the police had pulled out the 1st appellant from his seat. [70] It was submitted by the prosecution that the evidence was enough to infer knowledge on the part of the 2nd appellant. But if it was true that the 2nd appellant knew of the presence of the drugs in the said car, then surely during the car chase, the 2nd appellant would have thrown the drugs out of the car window. However, there was no such attempts made. However, the learned DPP in her oral submission said that, that was not possible as the 2nd appellant feared that the police who gave chase would see her throwing the drugs out of the car window, as they were tailing closely from behind. But we are of the view that such submissions coming from the prosecution are unsubstantiated but mere speculation. There was also no evidence to show how close was the police car from behind the said car during the car chase. 30 We are guided from case authorities that the state of the accused’s mind may be gathered from all of the evidence of what he did or did not do at the material time. Thus, to arrive at a finding of knowledge, the court will have to consider the totality of the evidence including any explanations and denials made by the accused and his conduct at the material time (PP v Badrulsham bin Baharom [1988] 2 MLJ 585 per Lim Beng Choon J). [71] In addition, the drugs that were found at the foot of the front passenger seat were in a black plastic bag. Although the black plastic bag was visible to the 2nd appellant, however the contents were not. We are aware of authorities like PP v Abdul Rahman Akif [2007] 4 CLJ 337 whereby the Federal Court held that it is a question of fact whether in a given case a person can be said to be in possession of something. The Federal Court in that case held that the presence of the 3 packages in a car without a plausible explanation from the accused person could give rise to a strong inference that he had knowledge that the packages contained drugs or things of similar nature. In Zulfikar bin Mustaffah v PP [2001] 1 SLR 633 at page 639, the facts that the drug was found wrapped in newspaper is no ground for saying that an inference could not be drawn against the respondent that he had the requisite knowledge. Contents of packages or bundles that were hidden from view may be relevant in determining whether the requisite knowledge was absent, however this factor should not be given too much weight. What is pertinent on the finding of the mental state of knowledge, or its rebuttal, is an inference to be drawn from the all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses. 31 Coming back to our present case, there was nothing in evidence to indicate that the 2nd appellant knew of the drugs, given that she was asked by the 1st appellant to follow him to Gurun to fetch the said car. The said car did not belong to the 2nd appellant. Unlike the evidence as against the 1st appellant where he was in control of the car as it was his car, and the conduct of the 1st appellant when he was trying to evade the police at the police road block by speeding off. Also unlike PP V Abdul Rahman Akif (supra), there the accused was arrested when he was alone driving the car and the package was found in the car hidden under the car seat. Therefore, as far as the 2nd appellant is concerned, we found that although she was in close proximity to the drugs as she was seated at the front passenger seat where the drugs were found at the foot of the front passenger seat, there was no evidence to show that she had knowledge of the drugs. The evidence were wanting in pointing to the knowledge of the 2nd appellant as to the presence of the drugs in the car. Proximity per se is insufficient to infer knowledge looking at the circumstances of this case. We are of the view that the learned High Court Judge erred when he found that the 2nd appellant had knowledge of the drugs premised on the conduct of the 1st appellant. [72] Therefore, we were of the view that after weighing up the evidence for the prosecution, there were sufficient evidence for a prima facie case against the 1st appellant, and the learned High Court Judge did not err in calling for defence of the 1st appellant. However, we found that the learned High Court Judge erred in calling for the defence of the 2nd appellant, as the elements of knowledge had not been made out. We were satisfied that it would be wholly unsafe to convict upon such evidence standing alone, as a prima facie case has not been made out and that the 2nd appellant should not be called upon to enter her defence. There has not been 32 established sufficient evidence, if unrebutted would warrant her conviction. Whether the 1st appellant succeeded in rebutting the presumption that had been invoked: [73] The learned High Court Judge had used the direct evidence (as opposed to presumption under section 37 (d) of the DDA 1952) to prove possession and knowledge as against the 1st appellant. The learned High Court Judge then had invoked the presumption of section 37 (da) DDA 1952 in determining that the appellants had trafficked in the drugs. Upon such presumption being invoked against the appellants, it is incumbent on the part of the 1st appellants to rebut this presumption on a balance of probabilities. [74] As laid out in the foregoing paragraphs, we found that the 1st appellant failed to rebut the evidence by the prosecution on the issue of possession. The defence of the 1st appellant were mere afterthoughts and bare denial. The character of Mat Amin was an afterthought and his denial of knowledge of the drugs was inconsistent with the evidence and his conduct throughout. The 1st appellant also failed to rebut the presumption under section 37 (da) of the DDA 1952 on the trafficking charges. CONCLUSION [75] As a result, the findings of the learned High Court Judge that the prosecution had proven the 1st and the 2nd charges against the 1st appellant is upheld. We affirmed the conviction and sentence against the 33 1st appellant on both charges. The appeal by the 1st appellant is dismissed. [76] As for the 2nd appellant, we do not find that the element of possession is made out. It is unsafe to maintain the order of conviction against the 2nd appellant on both of the charges. We therefore set aside the order of conviction and sentence on both charges against the 2nd appellant. The 2nd appellant is therefore acquitted and discharge on the 2 charges. The appeal by the 2nd appellant is allowed. Signed by: Zabariah Mohd Yusof Judge Court of Appeal Putrajaya Date: 8.10.2019 COUNSEL: Tamara Anthony for Appellant No. 1 [Messrs. Tamara Anthony] Burhanudeen bin Abdul Wahid for Appellant No. 2 [Tetuan Burhan & Company] TPR Dhiya Syazwani Izyan binti Mohd Akhir for the Respondent [Attorney General’s Chamber]