Muhammad Zaim Bin Awang v Pendakwa Raya (S-05(SH)-64-02/2023)

The appellant and his wife were charged with trafficking 1,199.3 grams of cannabis under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (‘DDA 1952’). The appellant’s wife was acquitted and discharged at the end of the prosecution’s case. However, the appellant’s fate was the opposite, as he was found guilty and sentenced to life imprisonment with 15 strokes of the cane at the end of the trial. His appeal lies against the conviction and sentence. Background facts The prosecution’s case

The charge against the appellant and his wife read as follows: "That you both on the 15th day of May 2020, at about 12.30 p.m., located a house number M68-2001, Taman Mutiara, Sg. Bedaun, Jalan Bebuloh, in the Federal Territory of Labuan, in furtherance of common intention of you both, did on your own behalf traffic in a dangerous drug to wit 1199.3 gram of Cannabis and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act, 1952 (Act 234) and punishable under Section 39B(2) of the same Act, read with Section 34 of the Penal Code."

The police, acting on a tip-off, went to the appellant’s house on 15 May 2020 at around 12.30 p.m. They had to force their way in through the front door as their knocks went unanswered. They found the appellant and his wife in the master bedroom. Inspector Shahrul Tarmizi Bin Shaffiee (PW6), who led the raiding team, administered a Section 37B(1) DDA 1952 caution as follows: ''Adalah menjadi kewajipan kepada saya untuk memberi amaran kepada kamu bahawa kamu tidaklah diwajibkan menyatakan sesuatu atau menjawab apa-apa soalan, tetapi apa-apa jua yang kamu katakan, sama ada sebagai menjawab sesuatu soalan atau tidak, boleh diberi sebagai keterangan."

The appellant nodded when PW6 asked whether he kept any “barang salah” and pointed to a parcel lying on the floor. The parcel, when opened, contained compressed dried leaves suspected to be cannabis. The appellant’s sister-in-law (PW5) was in another room. The police arrested the appellant, his wife, and PW5.

The drugs seized were sent to the chemist for analysis, who confirmed them as cannabis weighing 1,119.3 grams.

The High Court was satisfied that the prosecution had proven a prima facie case against the appellant at the end of the prosecution’s case. However, the court found that the prosecution had not established a prima facie case against the appellant’s wife and acquitted her without calling her defence. The court held that the prosecution had established actual possession against the appellant and invoked the presumption of trafficking under Section 37(da) DDA 1952. The defence

The appellant and his wife were at home on the day of the raid as he was on leave. He claimed that two men from Poslaju arrived in the afternoon to deliver a parcel. He refused to accept it but alleged that the men forced him to take it. He then signed the acknowledgement receipt and placed the parcel on the dining table. The police team barged in soon after. He showed them the parcel on the dining table when asked where it was. He claimed that one of the officers took the parcel and took it to his room. The appellant also claimed that one of the officers in the raiding team was one of the two men who delivered the parcel to him. He identified him as Corporal Elshafirul bin Elias Sianli. The appellant, however, did not call the officer to testify despite him being offered to the defence.

The learned High Court judge found the appellant’s defence inherently implausible because he could have easily refused to accept the parcel. His lordship noted that the appellant never inquired about the parcel with PW5 or anyone else. The court concluded that the appellant’s defence was merely a denial and that he had failed to rebut the presumption of trafficking.

The appellant was found guilty and sentenced to life imprisonment and 15 strokes of the cane. The appeal and findings

The appellant has raised several issues in this appeal, which we will address in turn Identity of the drug exhibits

The appellant argued that the integrity of the exhibits was seriously compromised and that the learned judge failed to address the appellant’s point that the drugs had been tampered with by three prosecution witnesses: the chemist (PW4), PW6 the raiding officer, and the Investigating Officer, Inspector Redzuan Amat Lin (PW7). The appellant claimed all three witnesses recognised differences between the photographs of the seized items (exhibits P9, P10 and P11). The appellant also pointed out that PW4 confirmed the parcel she received was fully wrapped, while the photographs showed a hole in the wrapping. Additionally, the appellant highlighted that PW6 and PW7 admitted that the exhibits varied in length, thickness, and appearance. The appellant argued that the prosecution failed to prove that the drugs seized were the same as those sent to the chemist, and these inconsistencies represent a serious flaw in the chain of evidence.

We will first address the issue with the photographs of the parcel containing the drugs. This issue has been satisfactorily dealt with by the learned judge. His lordship had compared the photographs of the parcel and noted that they were not three-dimensional, meaning they would not show the parcel completely. Furthermore, PW2, the photographer, testified that the difference in sizes resulted from him editing the photos to ensure that they fit the page. We find this explanation reasonable and, in fact, unchallenged by the appellant.

The learned judge, after considering the testimonies of PW6, the raiding officer, and PW4, the chemist, was satisfied with their explanations and therefore accepted that the chain of custody was intact. Having reviewed those factual findings and the reasons provided by the learned judge, we find that the appellant has failed to demonstrate any error on the part of the judge in reaching his conclusion. We concur with the learned judge that the exhibits seized by PW6, handed over to PW7, subsequently delivered to PW4, and later presented in court as evidence were indeed the same exhibits. Of particular importance is that PW6 and PW7 confirmed that the markings, signatures, and dates on the exhibits were made by them. The exhibits were sealed, labelled, and matched to the seizure documentation. The entire process, from seizure to inventory, handover, analysis, and resealing, was documented correctly. There is no evidence suggesting substitution or irregularity. We therefore find this issue to be unmeritorious.

The appellant argued that PW6 had never administered the caution under Section 37B(1) DDA 1952 to him and that he had not admitted the existence of a ‘barang salah” in the room where he was arrested. The appellant also submitted that the caution statements written by PW6 and signed by both the appellant and his wife (exhibit P18) were only produced by the prosecution at the last minute, when they ought to have been presented during the case management stage. The appellant referred to Section 51A(4) of the Criminal Procedure Code (‘CPC’) and argued that exhibit P18 should be excluded. Additionally, the appellant contended that exhibit P18 was only shown to him later at the police station and that the prosecution had not mentioned it in evidence at the time he signed the exhibit.

Section 51A(3) of the CPC states that a document shall not be inadmissible as evidence solely on the ground of non-compliance with Section 51A(1). It reads as follows: Delivery of certain documents

(1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:

a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any;

a copy of any document which would be tendered as part of the evidence for the prosecution; and

a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.

A document shall not be inadmissible in evidence merely because of non-compliance with subsection (1). (emphasis added)

Furthermore, the Federal Court in Benjamin William Hawkes v PP [2020] 8 CLJ 267 held that the provision in Section 51A CPC is purely procedural and not evidential, and would not affect the admissibility of the documents. The relevant passage in the court’s judgment is as follows: [67] The other issue is with regards to the distinction between the provisions which prescribed the manner of the trial, such as ss. 399 and 402A of the CPC and the provisions which facilitate the conduct of the trial such as s. 51A of the CPC. Disregard of the former is fatal to the trial and would at once invalidate the conviction. However, disregard of the latter is not fatal unless the court is satisfied that the accused had been prejudiced. The non-compliance with s. 51A of the CPC would not statutorily prevent the prosecution from tendering the documents which were not delivered to the accused person before trial as evidence in the course of the trial. Hence it is only procedural and not evidential. It is trite law that even in cases of evidence obtained illegally, its admissibility is unaffected as the issue is actually relevancy……

The complaint that no caution was administered is directly contradicted by PW6, whose evidence was supported by contemporaneous documents, including the police report he had made and the caution statements signed by the appellant and his wife (exhibit P18). The appellant’s nod, along with his gesture indicating the parcel, constituted a voluntary admission. The learned judge chose to accept PW6’s testimony on this issue, which in our opinion was not plainly wrong. Possession not proven

The appellant argues that the prosecution did not establish exclusive custody or control. The appellant pointed out that PW5, the appellant’s sister-in-law, also lived in the house and testified that many other people had access to it. The appellant contended that the learned judge failed to consider that others in the house could have had access to or owned the drugs, as they might have been the ones who “ordered” the parcel. He also claimed that the bedroom door was broken and could not be locked. PW5 claimed that parcels not addressed to the appellant were usually left in the living room. The appellant asserted that the parcel was found on the dining table, not in the bedroom where he and his wife were.

The appellant also argued that the parcel was unopened when the police raided the house. The appellant could not have known what was inside the parcel and could not be regarded as having intended to deal with it without knowing its contents. Furthermore, the appellant pointed out that the parcel was not addressed to him, as the name on the consignment note was “Darren Wang”.

Although there may be other occupants in the house, the parcel was found in the appellant's bedroom. It is irrelevant that other occupants live in the house, because the parcel was with the appellant when the police arrived. The only other person in the house was his wife, who was in the same room, and his sister-in-law, PW5, who was in a different room. The appellant’s wife, when giving evidence, agreed that only she and the appellant lived in the bedroom. This was also confirmed by PW5, who testified similarly and stated that she had not seen anyone else enter that room for the whole week. The learned judge appropriately considered these factors. It is insignificant that his bedroom door was unlocked and could not be secured. It would have been different if the parcel had been found in his room when he was not there, or, as the appellant claimed, on the table in the dining room. However, the learned judge concluded that the parcel was found in the bedroom where the appellant and his wife were, based on PW6’s testimony and the appellant’s own admission after PW6 had administered the caution statement. The learned judge’s finding on this fact was crucial.

The appellant’s suggestion that the parcel could belong to others who live there would only be relevant if the parcel was actually on the dining table. The learned judge accepted the prosecution’s version that the parcel was found in the appellant’s bedroom and that he showed it to the police after the caution was given. This is a question of fact that the learned judge had to determine.

There are two key factors that the learned judge needed to decide. First, whether the parcel was found in the appellant’s bedroom, and second, whether PW6 had administered the Section 37B(1) DDA 1952 caution to the appellant. The learned judge chose to accept the prosecution’s version based on PW6’s testimony, which was corroborated by the appellant’s caution statement and the police report lodged by PW6. These are findings of fact by the learned judge.

It is well-established law that an appellate court should be hesitant to overturn findings of fact by the trial judge unless such findings are against the weight of evidence; Che Omar Mohd Akhir v. Public Prosecutor [2007] 3 CLJ 281 (FC). The Federal Court in Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 12 MLJ 67, also held that the trial judge’s findings on the facts should not be disturbed unless it can be proven that the conclusions reached were clearly wrong. The concept of clearly wrong was explained by the apex court as follows: [5] The 'plainly wrong' test operated on the principle that the trial court had the advantage of seeing and hearing the witnesses on their evidence as opposed to the appellate court that acted on the printed records. The 'plainly wrong' test was not intended to be used by an appellate court as a means to substitute its own decision for that of the trial court on the facts. As long as the trial court's conclusion could be supported on a rational basis in view of the material evidence, the fact that the appellate court felt like it might have decided differently was irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence was examined by the appellate courts (see paras 34, 76 & 148)."

These facts establish a convincing chain. The appellant’s claim that the parcel was originally in the dining area lacked independent evidence. In our view, the learned judge’s finding and conclusion were not plainly wrong enough to justify our interference. Presumption of trafficking

It was submitted that, since possession has not been established, the presumption of trafficking under Section 37(da) cannot be invoked against the appellant. The appellant again argued that the parcel was found on the dining table, a claim his wife (DW2) confirmed. The appellant also pointed out that the testimonies of PW5 and PW6 regarding the location where the parcel was found differed, and therefore, the benefit of the doubt should be given to the appellant, as no other police officer in the raiding team was called to support PW6’s statement.

Once possession of more than 200 grams of cannabis was established, the statutory presumption under Section 37(da)(vi) applied. The appellant bore the burden to rebut it on a balance of probabilities. He did not. In conclusion, the appellant had failed to rebut the presumption of trafficking on a balance of probabilities. Lackadaisical and prejudicial investigations

The appellant highlighted numerous investigative failures by PW7, the Investigating Officer, such as: • failure to investigate delivery records or the Poslaju personnel who delivered the parcel; • failure to investigate who the sender of the parcel was; • failure to identify who “Darren Wang” was; • failure to verify the phone numbers on the consignment note or to send the seized phones of the appellant and his wife for forensic examination; • failure to investigate the WhatsApp conversations; • late disclosure of critical documents such as the caution statements signed by the appellant and his wife, the consignment note from Poslaju, the water bill and the extract of the WhatsApp conversation in the appellant’s mobile phone

The appellant submitted that the shoddy investigation, particularly into who sent and delivered the parcel, would have revealed crucial information. The appellant also highlighted that the phone number on the consignment note should have been investigated to ascertain whether it belongs to the appellant or his wife.

It is not crucial to investigate every possible lead. We have already addressed the appellant’s concern about the late disclosure of documents. PW7 examined the appellant’s mobile phone and retrieved the WhatsApp chat related to this case. However, the learned judge did not admit it as evidence because the prosecution did not follow proper evidential procedures. In fact, a review of the WhatsApp chat shows that its contents could have strengthened the prosecution’s case if admitted. Nonetheless, we believe PW6 was not required to investigate the sender of the parcel, the Poslaju personnel who delivered it, or the name “Darren Wang” on the parcel. The main issue is whether the appellant possessed the drugs for trafficking. The appellant’s claim that he was forced to accept the parcel and sign the acknowledgement is implausible. A reasonable person would have refused the parcel, especially since his name was not on it. In our view, PW7’s purported failure to investigate the issues raised by the appellant was not critical.

First, the legal principle is well established: in any criminal appeal against conviction, it is the duty and responsibility of the appellate court to determine whether the conviction is safe. This court in Mohd Johi bin Said & Anor v Public Prosecutor [2005] 1 CLJ held:

Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe.” (emphasis added)

Having examined the record and the parties’ submissions, we are satisfied that the learned trial judge applied the correct principles, made no material misdirection, and arrived at findings fully supported by the evidence. In our judgment the conviction against the appellant is safe and warrants no appellant intervention.

Accordingly, the appeal against conviction and sentence is dismissed. The conviction and sentence imposed by the High Court are affirmed. Dated: 3 December 2025 -sgd- (MOHAMED ZAINI MAZLAN) (JUDGE) COURT OF APPEAL MALAYSIA Counsel for the Appellant : Luke Ressa Balang & Mohd Hafidz bin Mohd Lokman Messrs Hairul Vaiyron & Co Counsel for the Respondent : Mohamad Arif Aizuddin bin Masrom