Nizammul Hayat Bin Zainal Abidin v Pendakwa Raya (B-05(SH)-619-12/2023)

The Appellant, Nizammul Hayat bin Zainal Abidin was charged for trafficking in a dangerous drug, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and punishable under section 39B(2) DDA. The High Court convicted the Appellant and sentenced him to life imprisonment, effective from the date of his arrest on 29 September 2021, together with twelve strokes of whipping.

The present appeal is directed against both the conviction and sentence handed down by the High Court on 15 December 2023.

The charge against the Appellant reads: “Bahawa kamu pada 29 September 2021, jam lebih kurang 10.45 malam di rumah beralamat PT 2247, Jalan Sungai Limau, Taman Setia Jaya, Sungai Besar dalam Daerah Sabak Bernam, dalam Negeri Selangor Darul Ehsan telah didapati mengedar dadah berbahaya jenis Cannabis seberat bersih 320.40gram dan dengan itu kamu telah melakukan satu kesalahan di bawah Seskyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama.”

On 29 June 2021 at approximately 10.25 p.m., while ASP Md Isa bin Mat (PW1) was at the office of the Narcotics Criminal Investigation Division (BSJND) of the Sabak Bernam District Police Headquarters (IPD Sabak Bernam), he received intelligence concerning suspected drug trafficking activities at a residential premise bearing the address PT2247, Jalan Sungai Limau, Taman Setia Jaya, Sungai Besar, Sabak Bernam, Selangor (“the house”).

The information further disclosed that the suspect was one Nizammul Hayat and that a substantial quantity of drugs was being kept in the suspect’s room within the house.

PW1 thereafter briefed the raiding team and launched an operation. PW1 and the team then proceeded to the scene in a private vehicle, and the journey took about five minutes.

Upon arrival, PW1 and the raiding team stopped their vehicle at a distance of approximately 10 metres from the house. PW1 conducted surveillance of the said house for about five minutes and instructed Constable Redwan to secure the rear entrance of the house.

PW1 observed two men seated outside at the front of the house, under the exterior lights. PW1 then moved in and introduced himself as a senior police officer to the two men, who were 4 subsequently identified as the Appellant and PW5. When PW1 identified himself, the Appellant appeared startled and frightened.

PW1 conducted a body search on both the Appellant and PW5 but found nothing incriminating on their persons. He then carried out a search of the front exterior of the house and recovered three transparent plastic packets containing compressed dried plant material from a small table in front of the Appellant and PW5 (P10(1–3) – P11). PW1 stated that the exhibits were exposed and not concealed. He also found a glass jar used as drug paraphernalia on the same table. PW5 stated that the items belonged to the Appellant.

PW1 then asked the Appellant whether he had kept any illicit items inside the house. The Appellant replied in the affirmative. PW1 thereafter instructed that the Appellant and PW5 be handcuffed on one hand. Guided by the Appellant, PW1 entered the house and proceeded to bedroom number 2 (“Room No. 2”), which was illuminated.

The Appellant went to a wardrobe, opened one of its drawers, and with his uncuffed right hand retrieved and handed over to PW1, one by one, the following items: i. Ten aluminum foil wrappings containing compressed dried cannabis plant material (P13 (1–10)); and 5 ii. One large compressed block wrapped in a transparent package containing dried cannabis plant material (P14, P15, P16).

Upon further inspection of the wardrobe, PW1 also found cash amounting to RM1,500.00 (P18(1–4)). Throughout the search of the room, the lights were switched on. Also present in the house were the Appellant’s brother (PW4) and mother.

PW1 subsequently brought the exhibits and the arrested persons, namely the Appellant and PW5, to the Sabak Bernam District Police Headquarters. PW1 weighed the exhibits, prepared the relevant forms, marked the exhibits, and thereafter handed them over to PW6, the Investigating Officer.

The analysis conducted by the Chemist, PW3, revealed that the net weight of the plant material was 320.40 grams of cannabis (P24).

After having considered all the exhibits, the evidence of the prosecution’s witnesses, and the submissions of both parties, the learned High Court Judge was satisfied that the prosecution had established a prima facie case against the Appellant, and accordingly called upon the Appellant to enter his defence.

A summary of the defence case, in which six witnesses were called, is as follows: 6 i. DW2 to DW6 who are the Appellant’s siblings and family members stated that the Appellant, his mother, and PW4 resided at the house where the incident occurred. ii. On 29 September 2021 at approximately 10.30 p.m., the Appellant and PW5 were relaxing and conversing in front of the house. iii. At about 10.45 p.m., a group of individuals suddenly arrived at the front of the Appellant’s house, identified themselves as police officers, and proceeded to search the Appellant. Thereafter, the police discovered drugs inside a box located beneath an aquarium near the place where they had been seated. The police then handcuffed the Appellant together with PW5 and brought them into the house. iv. The Appellant was taken to the second bedroom and was compelled to open a drawer and retrieve a package contained therein. The Appellant took out a yellow-coloured package and handed it over to the police, after which the Appellant and PW5 were brought to the police station. v. The Appellant stated that during the raid he felt anxious and panicked, as plainclothes police officers had arrived suddenly and handcuffed him together with PW5. 7 vi. The Appellant and the other defence witnesses stated that the second bedroom was also used by other family members for sleeping or for storing belongings. vii. DW2 to DW6 stated that they would return to the said house during weekends or festive occasions. viii. DW2 to DW6 denied that the exhibits were kept by them or belonged to them. ix. DW2 to DW6 further stated that the second bedroom was not locked and was used by the siblings.

After conducting a maximum evaluation of the prosecution’s case and hearing the defence, the learned High Court Judge found that the defence had failed to raise a reasonable doubt and accordingly convicted the Appellant on the charge.

The Appellant submits that the learned High Court Judge erred in law and fact in holding that the prosecution had established a prima facie case. It is contended that material contradictions in the prosecution’s evidence were not properly addressed or reconciled, rendering the finding unsafe.

The Appellant argues that the essential elements of custody, control, and exclusivity were not proven. Evidence from PW4 established that the room where the drugs were found was accessible to other siblings and family members, particularly 8 during weekends and festive occasions. The door could not be locked, and access was not exclusive to the Appellant.

It is therefore submitted that mere occupation of the room does not amount to exclusive possession. Relying on authorities such as PP v Mohd Sairi bin Abdul Samat [2013] 6 MLJ 741 and Mohamad bin Abd Rahman v Public Prosecutor [2013] MLJU 1592, the Appellant contends that knowledge of the location of drugs, without proof of exclusive custody and control, is insufficient to establish possession.

It is argued that the learned High Court Judge failed to adequately consider whether the Appellant had exclusive control over the room and drawer, or whether he merely knew of the drugs’ location. It was argued that knowledge alone without exclusivity and control, does not constitute possession nor trafficking.

The Appellant further submits that PW1 had effectively arrested him when he was handcuffed and deprived of his freedom of movement. However, no caution was administered as required under section 37B(1)(b) of the DDA.

Reference was also made to section 15 of the Criminal Procedure Code regarding the manner of arrest. It was argued that once the Appellant was handcuffed, he was clearly under arrest, notwithstanding PW1’s denial. The failure to administer 9 the statutory caution rendered the alleged act of directing the police to the drugs inadmissible or unsafe to rely upon.

Accordingly, the learned High Court Judge is submitted to have erred in relying on the Appellant’s act of pointing out the drugs as proof of knowledge.

It is further submitted that the Appellant’s conduct during the raid, including his alleged panic and his act of directing PW1 to the drawer in the room does not establish knowledge.

It is argued that panic or surprise during a late-night raid (at approximately 10.30 p.m.) is consistent with normal human behaviour and cannot, without more, be construed as evidence of guilt. Further, any act of directing the police to the drawer was done without prior caution and cannot safely establish knowledge.

It is argued that in any event, mere knowledge of the location of the drugs does not equate to possession or trafficking, particularly where other persons had access to the room.

Given the alleged failure to prove knowledge, custody, and control beyond reasonable doubt, the Appellant submits that the element of trafficking under section 39B of the DDA was not established.

It is contended that a conviction in the absence of these essential elements would amount to a miscarriage of justice.

The Appellant further argues that the learned High Court Judge erred in rejecting the testimony of the defence witnesses on the basis that they were interested witnesses.

All defence witnesses consistently testified that the room was accessible to other siblings and family members. It is submitted that the learned High Court Judge failed to provide cogent reasons for discrediting their evidence. Reliance was placed on the case of Balasingham v Public Prosecutor [1959] 1 MLJ 193 which establishes that the evidence of interested witnesses cannot be rejected merely on that basis without proper justification.

It is submitted that the failure to properly consider and evaluate the defence evidence had occasioned serious prejudice to the Appellant.

In the premises, the Appellant contends that the learned High Court Judge erred in finding a prima facie case, in concluding that the Appellant had knowledge, custody and control of the drugs, and in holding that the element of trafficking was proven.

We now address the principal contentions advanced by the Appellant.

Whether a Prima Facie Case Was Established [35] The Appellant contends that the learned High Court Judge erred in holding that the prosecution had established a prima facie case due to alleged contradictions in material facts. [36] The principles governing a prima facie evaluation were authoritatively stated in PP v Mohd Radzi Abu Bakar [2005] 6 MLJ 393 (FC), namely that the court must undertake a maximum evaluation of the evidence to determine whether the prosecution’s evidence, if unrebutted, would warrant conviction. [37] We find that the learned High Court Judge had carefully analysed the totality of the evidence and correctly directed herself in accordance with the principles laid down in PP v Mohd Radzi Abu Bakar (supra) and related authorities. The learned High Court Judge rightly relied on the direct and cogent evidence adduced at trial, particularly: i. PW3’s evidence confirming that the substance analysed was cannabis weighing 320.40 grams; ii. PW1’s evidence that drugs were earlier recovered outside the house from the small table in front of the Appellant; iii. The Appellant’s act of taking and handing over 10 aluminium foil packets and one large compressed block of cannabis from the drawer in Room No. 2; iv. PW4’s testimony that Room No. 2 was used by the Appellant and that the belongings therein were the Appellant’s; v. The fitting of clothing seized from the Room No.2 to the Appellant’s body size; and vi. The denial by PW4, PW5 and defence witnesses who are siblings and family members of the Appellant that the drugs belonged to them. [38] Upon our evaluation, we find that the learned High Court Judge had correctly applied the principles governing a finding of a prima facie case. The alleged inconsistencies/discrepancies highlighted by the Appellant were minor in nature and did not go to the root of the prosecution’s case. They did not displace the cogent and consistent evidence establishing the recovery of the drugs and the circumstances linking the Appellant thereto. We are therefore satisfied that the finding of a prima facie case was properly made.

Custody, Control and Exclusivity [39] The Appellant argues that he did not have exclusive possession of Room No. 2 where the drugs were found as it was accessible to other siblings and family members. It is further highlighted that the door to Room No.2 could not be locked and hence custody and control were not proven. With respect, this argument is misconceived in law. [40] In Chan Pean Leon v PP [1956] 22 MLJ 237, Thomson J adopted Stephen’s Digest definition of possession, which requires both: i. A physical element — power to deal with the item as owner to the exclusion of others; and ii. A mental element — intention (animus possidendi). [41] The Federal Court in Pendakwa Raya v Denish a/l Madhavan [2009] 2 MLJ 194 clarified that possession need not be “exclusive” in the sense of sole occupation. One may be in joint possession. The so-called “exclusive element” refers to the power to deal with the property as owner and not the absence of access by others. [42] Similarly, in Siew Yoke Keong v PP [2013] 4 CLJ 149, the Court held that the presence of other persons’ belongings in the premises does not negate possession if the surrounding circumstances establish dominion and control. [43] In the present case, drugs were found earlier on a table in front of the Appellant. The Appellant personally led PW1 to the drawer in Room No. 2 and retrieved the drugs and PW4 who were present at the time of the raid by PW1, confirmed that Room No. 2 was used by the Appellant and contained his belongings. In addition, clothing seized from the room fitted the Appellant. These facts constitute strong evidence of custody and control. The mere possibility that siblings had occasional access does not raise a reasonable doubt. We find that the learned High Court Judge did not misdirect herself on the law of possession. [44] It is trite that exclusive occupation is not a legal prerequisite to prove possession. What must be established is custody or control coupled with knowledge. [45] The learned High Court Judge correctly appreciated the principles in PP v Mohd Sairi (supra) and Mohamad bin Abd Rahman v Public Prosecutor (supra). Those authorities do not stand for the proposition that shared access automatically negates possession. Rather, they require the Court to evaluate the surrounding circumstances to determine whether the accused exercised dominion and control over the drugs. In the present case the drugs were found in a drawer within the room occupied by the Appellant. The Appellant directed PW1 to the precise location of the drugs. There was no evidence that any other person exercised dominion over that drawer at the material time. [46] The mere fact that siblings could access the room during festive occasions does not ipso facto negate custody or control. Possession may be joint or constructive. The learned High Court Judge was entitled to conclude, on the evidence, that the Appellant had the requisite control. We therefore find no misdirection in that conclusion.

Failure to Administer Caution under Section 37B DDA [47] The Appellant contends that he was effectively under arrest when handcuffed and that PW1 failed to administer the caution required under section 37B(1)(b) of the DDA. Consequently, it is argued that his act of directing the police to the drawer ought not to have been relied upon. We are not persuaded. [48] We find that the learned High Court Judge had evaluated the sequence of events and the credibility of PW1. Findings on credibility are peculiarly within the province of the trial court and ought not to be disturbed unless shown to be plainly wrong. Even assuming there was irregularity, such an omission does not automatically render the evidence inadmissible at most, it affects the weight. The learned High Court Judge was entitled to assess the probative value of the evidence in light of all surrounding circumstances. In any event, the conviction did not rest solely on any statement but on physical recovery, control and surrounding circumstances. In other words, the conviction did not rest solely on the act of directing the police to the drugs. The recovery of the drugs from the Appellant’s room and the surrounding circumstances constituted independent evidence supporting the inference of knowledge and control. We therefore find no miscarriage of justice on this ground.

Knowledge [49] The Appellant submits that his panic during the raid was consistent with normal human behaviour and did not establish knowledge. We agree that mere nervousness or surprise, without more, is insufficient. However, the learned High Court Judge did not rely solely on the Appellant’s reaction. [50] The critical factor was that the Appellant was able to lead the police directly to the drawer containing the drugs. Such specific knowledge of the exact location is a strong incriminating circumstance. When viewed together with the recovery of the drugs in his room, the inference of knowledge was irresistible. As consistently held, knowledge may be inferred from circumstantial evidence. The learned High Court Judge drew the inference logically and in accordance with established principles. [51] The Federal Court in Parlan Dadeh v PP [2009] 1 CLJ 717 explained that evidence of conduct is admissible under section 8 of the Evidence Act 1950 if it is influenced by a fact in issue. If unexplained, the inference remains unrebutted. In this appeal, the Appellant offered no satisfactory explanation for his conduct, particularly his ability to lead PW1 directly to the concealed drugs. His defence was essentially a bare denial. [52] Further guidance is found in Johar Mustapha v PP [2009] 6 CLJ 193, which adopted the reasoning in Warner v MPC [1969] 2 AC 256, that physical control of a container known to have contents constitutes possession of its contents. [53] The learned High Court Judge was entitled to infer knowledge from the Appellant’s deliberate act of retrieving the drugs from the drawer. This was not mere passive presence. The presumption under section 37(d) DDA 1952 was properly invoked once custody and control were established. [54] In Emmanuel Yaw Teiku v PP [2006] 3 CLJ 597, the Federal Court held that there is no mandatory requirement to invoke section 37(d) actual possession cum knowledge may be established from the totality of the evidence. In the present case, even without reliance on section 37(d) of the DDA, there was direct evidence of affirmative possession. The Appellant’s retrieval and surrender of the drugs is overwhelming evidence of conscious control. [55] His defence amounted to mere denial. As observed by the Federal Court in Raman Kunjiraman v PP [2014] 9 CLJ 915 where there is overwhelming evidence of custody and control, and the defence is bare denial, the conviction is safe.

Element of Trafficking [56] Having established possession within the meaning of custody and control coupled with knowledge, and given the quantity of the drugs recovered, the statutory presumption under section 37(d) of the DDA was correctly invoked. [57] The cannabis weighed 320.40 grams. The learned High Court Judge correctly applied section 2 of the DDA 1952. The Federal Court in PP v Lim Hock Boon [2009] 3 CLJ 430 clarified that the definition of trafficking in section 2 of the DDA may be relied upon where the acts of keeping, carrying or concealing are established. Further, in Teuku Nawardin Syamsuar v PP [2011] 3 CLJ 353, the Federal Court affirmed that trafficking may be established by reference to the statutory definition in section 2 of the DDA, read with possession. Given the quantity involved and the established possession, the element of trafficking was properly made out. [58] The Appellant failed to rebut that presumption on a balance of probabilities. His bare denial and suggestion of shared access were insufficient to displace the statutory inference. Accordingly, the element of trafficking under section 39B of the DDA was proved beyond reasonable doubt.

Rejection of Defence Witnesses [59] The Appellant contends that the learned High Court Judge erred in rejecting the evidence of defence witnesses on the basis that they were interested witnesses, relying on Balasingham v PP (supra). With respect, the record does not support the contention that the evidence was rejected merely because they were family members. The learned High Court Judge considered their testimony but found it to be self-serving and insufficient to raise a reasonable doubt when weighed against the prosecution’s evidence. We rely on the settled principle that appellate courts are slow to disturb findings on credibility. [60] In Lee Ah Seng & Anor v PP [2007] 5 CLJ 1 and Moh Chuan Pin v PP [2009] 6 CLJ 420, the Federal Court emphasised that credibility findings are primarily for the trial judge who had the audio-visual advantage. The learned High Court Judge had evaluated the defence evidence in detail and found it insufficient to raise a reasonable doubt. A reasonable doubt must arise from evidence or want of evidence, not conjecture, as explained in Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16. We therefore find no compelling reason to interfere with those factual findings. [61] We must add at this juncture that one of the arguments proffered by the learned counsel was the fact that the Appellant’s mother was not called to testify and as such the invocation of section 114 (g) of the Evidence Act 1950 was called upon. We find no merit in this contention for we find that the failure to call the Appellant’s mother does not cast any reasonable doubt on the prosecution’s case that it was the Appellant who had possession of the drugs in question. It must be borne in mind that Room No.2 was not occupied by the Appellant’s mother. As stated by PW4, Room No.2 was occupied by the Appellant, and the other siblings would only occasionally use the same room. PW4 and the other defence witnesses who are also the Appellant’s siblings denied possession and knowledge of the drugs. No suggestion was put to the prosecution’s witnesses that the drugs belonged to the mother. The submission under section 114(g) of the Evidence Act 1950 regarding the non-calling of the Appellant’s mother is devoid of merit. No foundation was laid suggesting that her testimony would have been material or adverse to the prosecution. Conclusion [62] Upon a careful re-evaluation of the entire evidence, we are satisfied that the prosecution had established a prima facie case. The learned High Court Judge correctly found that custody, control, and knowledge were established. The alleged failure to administer caution did not occasion a miscarriage of justice. The statutory presumption of trafficking was properly invoked and not rebutted and the conviction was safe. The sentence imposed was in accordance with the law. [63] We were unanimous in dismissing the appeal and in affirming the conviction and sentence meted out by the learned High Court Judge. Dated: 21 February 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS: Counsels for Appellant:

Dato’ Ahmad Zaharil Bin Muhaiyar; and

Cik Nurul Syamimi Binti Norazlan [A M Zaharil & Co. (Petaling Jaya)] Counsel for Respondent:

TPR Siti Rafidah Binti Zainuddin [Attorney General’s Chamber] CASES REFERRED TO:  PP v Mohd Sairi bin Abdul Samat [2013] 6 MLJ 741  Mohamad bin Abd Rahman v Public Prosecutor [2013] MLJU 1592  Balasingham v Public Prosecutor [1959] 1 MLJ 193  PP v Mohd Radzi Abu Bakar [2005] 6 MLJ 393 (FC)  Chan Pean Leon v PP [1956] 22 MLJ 237  Pendakwa Raya v Denish a/l Madhavan [2009] 2 MLJ 194  Siew Yoke Keong v PP [2013] 4 CLJ 149  Parlan Dadeh v PP [2009] 1 CLJ 717  Johar Mustapha v PP [2009] 6 CLJ 193  Warner v MPC [1969] 2 AC 256  Emmanuel Yaw Teiku v PP [2006] 3 CLJ 597  Raman Kunjiraman v PP [2014] 9 CLJ 915  PP v Lim Hock Boon [2009] 3 CLJ 430  Teuku Nawardin Syamsuar v PP [2011] 3 CLJ 353  Lee Ah Seng & Anor v PP [2007] 5 CLJ 1  Moh Chuan Pin v PP [2009] 6 CLJ 420  Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16