ONG SIM WEI v Pendakwa Raya (TA-42S-7-12/2024)

This is an appeal against the conviction and sentence imposed by the learned Sessions Court Judge (“SCJ”) at Kuala Terengganu on 28 November 2024. The Appellant was charged with an offence under Section 12(2) of the Dangerous Drugs Act 1952, punishable under Section 39A(2) of the same Act. The charge against the Appellant reads as follows: “Bahawa kamu pada 18.9.2022 jam lebih kurang 10.30 pagi di sebuah bilik tumpangan, Penginapan Zul Baroqah, Lot 1- 1331D, Jalan Binjai Chendering di dalam Daerah Kuala Terengganu, di dalam Negeri Terengganu didapati telah ada dalam kawalan kamu dadah berbahaya jenis Methamphetamine seberat 40.81 gram. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(2) Akta yang sama.”

The Appellant claimed trial to the charge. At the conclusion of a full trial, the learned SCJ found the Appellant guilty and convicted him accordingly. The Appellant was sentenced to nine (9) years’ imprisonment from the date of arrest, being 18 September 2022, and ten (10) strokes of whipping. Dissatisfied with both conviction and sentence, the Appellant filed the present appeal.

The facts giving rise to this appeal may be summarised from the evidence adduced before the Sessions Court. The Prosecution called eight (8) witnesses (SP1 to SP8) in support of its case, while the Appellant testified on oath as the sole witness for the defence.

On 18 September 2022, at approximately 8.00 am, SP5 (ASP Noor Azhar bin Abdullah) received information regarding drug distribution at a lodging house known as Penginapan Dzul Baroqah, located at Lot 1-1331D, Jalan Binjai Chendering, Kuala Terengganu. SP5 conducted a briefing at 9.00 am, and at about 10.30 am, he led a raiding party comprising eight (8) personnel to the said premises.

Upon arrival, SP5 observed the premises for approximately 15 minutes and noted no movement in or out of the lodging house. The front door of the premises was found closed. SP5 and his team forcibly gained entry. They proceeded to room No. 3, where the door was found to be closed and locked. SP5 knocked on the door several times, and the door was opened from inside by the Appellant.

SP5 identified himself as a police officer and conducted a body search on the Appellant, which revealed nothing incriminating. Thereafter, with the assistance of his team, SP5 searched the room. On a dressing table to the left of the room, adjacent to the bed, SP5 discovered a black cloth pouch (subsequently marked as Exhibit P18). Opened in the Appellant's presence, the pouch contained:

eight (8) transparent plastic packets, each wrapped with black tape (Exhibits P4A to P4H), containing crystalline substances suspected to be Syabu (methamphetamine); and

one (1) transparent plastic packet (Exhibit P5) containing four (4) cut straws (Exhibits P6A to P6D) with red pills suspected to be Yaba pills.

Also found on the same dressing table was a business invoice (Exhibit ID19, later admitted as P19) belonging to Perusahaan Songket Ismail Mohd, bearing number 01425 and dated 14 September 2022, issued in favour of the Appellant.

The Appellant and all seized items were brought to the Terengganu Contingent Police Headquarters (IPK) for further action. SP5 prepared a search list (Exhibit P16), which was signed by the Appellant, and a handover form (Exhibit P17). The Appellant and the seized items were handed over to the Investigating Officer, SP8 (Insp Aizuddin bin Wahab), at the Kuala Terengganu IPD at approximately 1.00 pm.

SP8 took custody of the seized items and kept them in a locked cabinet in his office. On 19 September 2022, SP8 sent the drug exhibits to the Chemistry Department Malaysia, Terengganu, for analysis. SP1 (Mohamad Zubair Ali bin Sulhi), the chemist, analysed the exhibits and issued Chemistry Report No. 22-FR-T- 03463 (Exhibit P9). The analysis confirmed that the eight (8) packets contained crystalline substances weighing 56.90 grams net, containing 40.56 grams of methamphetamine, and the four (4) straws contained red tablets weighing 1.79 grams net, containing 0.25 grams of methamphetamine. The total net weight of methamphetamine was 40.81 grams.

On 20 September 2022, SP8 revisited the scene with SP4 (Zulkiflie bin Ismail), the owner of the lodging house. During inspection of room No. 3, SP8 found a key (Exhibit P14) on a table inside the room. SP4 confirmed that this was the key given to the Appellant as the tenant of room No. 3, and not a duplicate key. SP8 seized the key and also seized several items of clothing found in the room, which were subsequently identified as belonging to the Appellant.

When called upon to enter his defence, the Appellant elected to give sworn testimony. His defence was essentially one of bare denial. He claimed that on the morning of the incident, he was asleep and only woke up when he realised police were inside his room. He stated that prior to falling asleep, two friends named Ashraf and Fatin were present in the room. The Appellant claimed he did not know when they left and had no knowledge of the drugs found in the black pouch.

The Appellant also contended that the police did not seize any key from him during the raid, suggesting that the room could have been accessed by third parties. He further questioned how the key (P14) came to be found on the table on 20 September 2022 when it was not present during the raid on 18 September 2022 or during the police visit on 19 September 2022 when photographs (Exhibits P13A-L) were taken.

At the close of the prosecution's case, the learned SCJ found that a prima facie case had been made out against the Appellant. The learned SCJ applied the presumption under Section 37(d) of the Dangerous Drugs Act 1952 and held that the prosecution had established all essential ingredients of the offence. The Appellant was ordered to enter his defence.

After evaluating the defence evidence, the learned SCJ found that the Appellant had failed to raise any reasonable doubt on the prosecution's case. The learned SCJ rejected the Appellant's bare denial and his explanation regarding the presence of third parties, finding that such claims were unsupported by evidence and were inconsistent with the objective facts. The Appellant was convicted and sentenced as stated.

The Appellant filed his Petition of Appeal on 21 April 2025, raising fourteen (14) grounds of appeal. In essence, these grounds may be distilled into three main issues:

Whether the learned SCJ erred in finding that a prima facie case had been established against the Appellant at the close of the prosecution's case;

Whether the learned Judge erred in convicting the Appellant at the conclusion of the trial; and

Whether the sentence imposed was manifestly excessive.

In support of these grounds, the Appellant's counsel filed written submissions dated 28 December 2025. The Respondent filed written submissions in reply on 31 December 2025.

Learned counsel for the Appellant, Encik Ghazali bin Ismail submitted that the learned SCJ erred in fact and law in finding a prima facie case had been established. The core argument centred on the fact that the raid was conducted based on information received, invoking the principles established in Abdullah Zawawi bin Yusoff v PP [1993] 4 CLJ 1 (SC) and Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113 (FC). Counsel submitted that where police act on a tip-off, there exists a danger that drugs may have been planted, and the prosecution bears the onus of excluding the possibility of access by third parties.

Counsel argued that the prosecution failed to exclude such possibility. He highlighted contradictions in the evidence regarding whether the front door of the lodging house was locked. SP5 testified that it was locked, while SP4 (the owner) testified that the front door was never locked. Counsel submitted that where two versions exist, the inference favourable to the accused should be adopted, citing PP v Abu Bakar bin Ariffin [1991] 1 CLJ 58 (HC), and Tai Chai Keh v PP [1948-49] MLJ Supp 105 (CA).

On the issue of the room key, counsel submitted that SP5 admitted no key was seized from the Appellant during the raid. Yet photographs (P13J and P13K) taken on 19 September 2022 showed a key on the door knob from the outside. Counsel questioned how the key came to be there if it was not in the Appellant's possession. Further, counsel submitted that P14 was only seized on 20 September 2022 from inside the room, raising questions about who placed it there and whether others had access to the room.

Counsel also challenged the chemist's evidence regarding the analysis process, though this was not vigorously pursued in submissions. The overarching submission was that the learned SCJ failed to conduct a proper maximum evaluation of the prosecution's evidence and failed to consider the defence evidence holistically as required by Section 173(m)(i) of the Criminal Procedure Code. Counsel urged this court to allow the appeal and acquit the Appellant.

Learned Deputy Public Prosecutor, Puan Noradila binti Ab Latif submitted that the conviction and sentence were safe and should be upheld. She argued that the appellate court should be slow to interfere with findings of fact made by the trial court, citing PP v Bhandulananda Jayatilake [1982] 1 MLJ 83 (FC) and PP v Mohamed Nor & Ors (1985) 2 MLJ 200b (SC).

On the merits, the DPP submitted that all elements of the offence were proven beyond reasonable doubt. The drugs were confirmed by the chemist to be methamphetamine weighing 40.81 grams. The chain of evidence was unbroken, with SP5, SP8, and SP1 all giving consistent evidence on the handling and analysis of the exhibits.

Regarding possession and knowledge, the DPP submitted that the Appellant had exclusive control over room No. 3. The evidence of SP4 and SP7 established that the Appellant was the sole tenant. The key (P14) was confirmed to be the key given to the Appellant. The drugs were found in plain view on the dressing table in a room occupied exclusively by the Appellant. The presumption under Section 37(d) of the Dangerous Drugs Act 1952 applied and was not rebutted.

The DPP addressed the issue of access by third parties. She submitted that the Appellant's claim about Ashraf and Fatin was a bare denial raised only during trial, with no effort to call these individuals to testify. The evidence of SP4 and SP7 confirmed no other tenants were present during the relevant period. Even if Ashraf and Fatin were present, their presence was with the Appellant's permission, which did not negate his possession and control.

On the issue of the key, the DPP explained that the photographs (P13J and P13K) were taken on 19 September 2022, after the arrest. The key visible on the door knob was the duplicate key held by SP4, who was present with SP8 during the visit. This did not affect the integrity of the prosecution's case as the key given to the Appellant (P14) was seized from inside the room on 20 September 2022.

Regarding sentence, the DPP submitted that nine years' imprisonment and ten strokes of whipping were not manifestly excessive. She cited sentencing trends for similar offences, including PP v Saifulazinizam Mat Nasir [2021] CLJU 1074 (CA) (13 years), Thurraipandy Jivarash v PP [2021] CLJU 952 (HC) (11 years), Ng Terk Chai & Satu Lagi v PP [2021] CLJU 215 (HC) (10 years) and PP v Eddi Md Kasim & Anor [2020] CLJU 329 (HC) (10 years). He also emphasised the public interest in deterring drug offences.

At the outset, it is necessary to restate the well-established principles governing appellate intervention. An appellate court will not readily interfere with findings of fact made by a trial court, as the trial court has the advantage of seeing and hearing witnesses testify. However, the appellate court has a duty to intervene where the trial court has fundamentally misdirected itself on the law or the facts, such that no reasonable court properly directing itself would have arrived at the same conclusion: see Tan Thong Jin v Public Prosecutor [2002] 3 MLJ 695 (CA) and Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 (CA).

This court sitting on appeal is not merely a "proof reader" but must examine the evidence recorded together with the grounds of judgment and the grounds raised in the petition of appeal. Where there is no judicial appreciation of evidence, or where the trial court failed to view the whole evidence objectively, intervention is warranted: Yahaya bin Mohamad v Chin Tuan Nam [1975] 2

The test for a prima facie case at the close of the prosecution's case is well settled. The court must subject the prosecution evidence to maximum evaluation and ask whether, if the accused elects to remain silent, the court would be prepared to convict on the totality of the evidence: Looi Kow Chai & Anor v PP [2003] 1 CLJ 734 (CA); Balachandran v PP [2005] 1 CLJ 85 (FC). This does not require proof beyond reasonable doubt at that stage, but credible evidence on each essential ingredient of the offence.

The essential ingredients for an offence under Section 12(2) read with Section 39A(2) of the Dangerous Drugs Act 1952 are:

That the substance in question is a dangerous drug;

(ii) That the accused had possession or control of the drug; and

(iii) That the accused had knowledge of the nature of the drug.

Having reviewed the prosecution evidence, this court finds that the learned SCJ correctly directed herself on the law and properly evaluated the evidence in finding a prima facie case.

On the first ingredient, the evidence of SP1 (the chemist) and Exhibit P9 conclusively established that the substances seized contained 40.81 grams of methamphetamine, a dangerous drug listed in the First Schedule to the Dangerous Drugs Act 1952. The chain of evidence was meticulously maintained, with SP5, SP8, and SP1 all giving consistent evidence on the handling, custody, and analysis of the drugs. The Appellant's challenge to the chemist's methodology was properly addressed by the learned SCJ, who correctly applied the principle in Munusamy Vengadasalam v PP [1987] CLJ Rep 221 (SC) that a court is entitled to accept an expert's opinion on its face value unless inherently incredible.

On the second ingredient, the prosecution adduced compelling evidence of the Appellant's possession and control. SP5 testified that upon arrival at room No. 3, the door was closed and locked. See Figure 1 - (Exhibit P20) i.e. the sketch plan of room No. 3 (marked as ‘B1’) within the entire ground floor structure of the lodging house. The Appellant opened the door from inside (marked ‘P’ in Figure 1). Only the Appellant was present in the room at the time of the raid. The drugs were found in plain view on the dressing table. SP4 and SP7, the owners of the lodging house, confirmed that the Appellant was the sole tenant of room No. 3. The key (P14) was identified as the key given to the Appellant, and it was seized from inside his room.

The combination of these facts i.e. exclusive occupation, the locked room, the presence of the Appellant alone, and the drugs found in an open area of the room, leads inexorably to the inference that the Appellant had custody and control of the drugs. This is consistent with the principles enunciated in Chan Pean Leon v PP [1956] 2 MLJ 237 (HC) and PP v Puvaaneswaran Kanipan [2003] 4 CLJ 609 (HC).

On the third ingredient, knowledge, the prosecution was entitled to rely on the presumption under Section 37(d) of the Dangerous Drugs Act 1952. Once custody or control is established, knowledge of the nature of the drug is presumed. This presumption is rebuttable, but the burden lies on the accused to prove on a balance of probabilities that he did not know the nature of the substance: see Jonaidi Mansor v PP [2002] 1 CLJ 761 (HC) and PP v Reza Mohd Shah Ahmad Shah [2010] 1 CLJ 541 (FC).

The Appellant's argument that the raid was based on information, invoking Abdullah Zawawi bin Yusoff v PP (supra) and Ibrahim Mohamad & Anor v PP (supra), requires careful consideration. In Abdullah Zawawi, the Supreme Court held that where police act on a tip-off, the prosecution must exclude the possibility that drugs were planted. However, that principle must be applied contextually. It does not mean that in every tip-off case, the prosecution must prove a negative without any evidentiary foundation. The duty arises where the circumstances raise a real possibility of planting. In the present case, the overwhelming evidence of the Appellant's exclusive control and the absence of any evidence suggesting planting negates such possibility.

Moreover, the evidence established that no one else had access to the room. SP4 and SP7 confirmed no other tenants were present. The front door (marked “PH” in Figure 1), whether locked or unlocked, does not materially affect the finding that room No. 3 itself was locked and accessible only to the Appellant. The alleged presence of Ashraf and Fatin, even if true, was with the Appellant's permission and does not displace his possession. As held in PP v Kua Tiong Ann [2009] 1 LNS 195 (HC), possession is not negated merely because others may have occasional access with the occupier's consent.

The contradictions highlighted by the Appellant regarding the front door (“PH”) being locked or unlocked are not material to the charge. The focus must be on room No. 3 (“B1”), where the drugs were found. Even assuming the front door was unlocked, this does not establish that room No. 3 was accessible to others. SP5's evidence that the room door (“P”) was locked and opened by the Appellant from inside remained unshaken. Minor discrepancies do not render a witness incredible, especially where the core facts are consistent: see PP v Mohamed Ali [1962] 1 MLJ 257 (HC); Mohamed Alias v PP [1983] 2 MLJ 172 (HC); and Pie bin Chin v PP [1985] 1 MLJ 234 (HC).

The issue of the key deserves specific attention. The Appellant argued that since no key was seized from him during the raid, the room could not have been locked, and others must have had access. This argument is fallacious. The absence of seizure does not prove the key was not in the Appellant's possession; it merely reflects that SP5 did not take it. The Appellant himself opened the room door (“P”), demonstrating he had the means to lock and unlock it. The key was later found inside the room and identified as belonging to the Appellant. The photographs showing a key on the door knob on 19 September 2022 are explained by the presence of SP4 with the duplicate key during the police visit. This does not undermine the prosecution's case.

This court finds that the learned SCJ's analysis of the prima facie case was thorough and correct. She properly subjected the prosecution evidence to maximum evaluation and correctly found that all elements were established.

At the close of the defence, the learned SCJ was required to consider all the evidence adduced, both prosecution and defence, and determine whether the prosecution had proved its case beyond reasonable doubt: Section 173(m)(i) of the Criminal Procedure Code; Zulkefly bin Had v PP [2014] 6 CLJ 64 (CA).

The Appellant's defence was a bare denial. He claimed he had no knowledge of the drugs and suggested they might have been left by his friends. This defence was not raised during investigation and emerged only at trial. No effort was made to call Ashraf or Fatin to corroborate his story. The learned SCJ correctly found that a bare denial, without more, is insufficient to raise a reasonable doubt: D A Duncan v PP [1980] 2 MLJ 195 (FC); PP v Ling Tee Huah [1982] 2 MLJ 324 (HC).

The learned SCJ also correctly held that the Appellant failed to rebut the presumption under Section 37(d). The Appellant's testimony did not provide a plausible explanation for his knowledge or control of the drugs. His claim of ignorance, in light of the drugs being openly placed on his dressing table in a room he exclusively occupied, was inherently incredible.

This court finds no error in the learned SCJ's evaluation of the defence evidence. She considered the Appellant's testimony, weighed it against the prosecution's evidence, and correctly concluded that no reasonable doubt was raised. The conviction is therefore safe and should be upheld.

On the issue of sentence, this court reiterates the principle that an appellate court will not interfere with a sentence imposed by the trial court unless it is manifestly excessive or inadequate, or the trial court has erred in applying legal principles: Dato' Seri Anwar Ibrahim v PP [2002] 3 CLJ 457 (FC); PP v Mohamed Nor & Ors (supra).

The offence under Section 39A(2) of the Dangerous Drugs Act 1952 carries a mandatory minimum sentence of five years' imprisonment and ten strokes of whipping, and a maximum of life imprisonment. The learned SCJ had regard to the relevant sentencing principles, including the gravity of the offence, the public interest, mitigating factors, and sentencing trends.

The mitigating factors urged by the Appellant i.e. that he was a first offender, 40 years old, a divorcee with a young child, were duly considered. However, the learned SCJ also properly considered aggravating factors, including the fact that the case proceeded to full trial, consuming judicial time and resources, and the prevalence of drug offences in Terengganu requiring a deterrent sentence.

Comparing the sentence imposed (nine years and ten strokes) with sentencing trends for similar offences reinforces its appropriateness. In PP v Saifulazinizam Mat Nasir (supra) (51.91 grams), the sentence was 13 years; in Thurraipandy Jivarash v PP (supra) (40.73 grams), 11 years; in Ng Terk Chai & Satu Lagi v PP (supra) (42.70 grams), 10 years; and in PP v Eddi Md Kasim & Anor (supra) (40.73 grams), 10 years. The Appellant's sentence of nine years for 40.81 grams is, if anything, on the lower end of the spectrum.

This court finds that the sentence imposed is not manifestly excessive. It is within the range of sentences typically imposed for similar offences and reflects a proper balancing of mitigating and aggravating factors. The learned SCJ correctly ordered the sentence to run from the date of arrest, as permitted by law.

Having carefully reviewed the record of appeal, the written submissions of both parties, and the authorities cited, this court concludes as follows:

The learned SCJ correctly found that a prima facie case had been established against the Appellant at the close of the prosecution's case. All essential elements of the offence were proven through credible evidence, which withstood maximum evaluation.

The conviction entered at the conclusion of the trial was safe and proper. The Appellant's bare denial and unsubstantiated claim of third-party involvement failed to raise any reasonable doubt on the prosecution's case. The presumption under Section 37(d) of the Dangerous Drugs Act 1952 was not rebutted.

The sentence of nine years' imprisonment and ten strokes of whipping was not manifestly excessive. It fell within the range of appropriate sentences for offences under Section 39A(2) of the Dangerous Drugs Act 1952, having regard to the weight of the drugs involved, the fact of a full trial, and the public interest in deterring drug offences.

For the foregoing reasons, this appeal against conviction and sentence is dismissed. The conviction is affirmed, and the sentence imposed by the Sessions Court is upheld. The Appellant shall serve the sentence of imprisonment from the date of his arrest, 18 September 2022, with the whipping to be administered in accordance with the law. Dated: 2 June 2026 Yusrin Faidz Bin Yusoff Judicial Commissioner High Court of Malaya Kuala Terengganu Counsel for the Appellant: Ghazali bin Ismail Tetuan Ghazali Ismail & Co., PT 14194, Tingkat 1, Jalan Balai Besar, Kg Alor Tempoyak, 23000 Dungun, Terengganu Darul Iman. Counsel for the Respondent TPR Noradila binti Ab Latif Timbalan Pendakwaraya Negeri Terengganu, Pejabat Penasihat Undang-Undang Negeri Terengganu, Tingkat 14, Wisma Darul Iman, 20200 Kuala Terengganu, Terengganu Darul Iman.

Abdullah Zawawi bin Yusoff v PP [1993] 4 CLJ 1 (SC).

Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113 (FC). Chan Pean Leon v PP [1956] 1 MLJ 237 (HC).

PP v Abu Bakar bin Ariffin [1991] 1 CLJ 58 (HC).

Tai Chai Keh v PP [1948-49] MLJ Supp 105 (CA).

PP v Bhandulananda Jayatilake [1982] 1 MLJ 83 (FC).

PP v Mohamed Nor & Ors (1985) 2 MLJ 200b (SC).

PP v Saifulazinizam Mat Nasir [2021] CLJU 1074 (CA).

Thurraipandy Jivarash v PP [2021] CLJU 952 (HC).

Ng Terk Chai & Satu Lagi v PP [2021] CLJU 215 (HC).

PP v Eddi Md Kasim & Anor [2020] CLJU 329 (HC).

Tan Thong Jin v Public Prosecutor [2002] 3 MLJ 695 (CA).

Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ

Yahaya bin Mohamad v Chin Tuan Nam [1975] 2 MLJ 117

Looi Kow Chai & Anor v PP [2003] 1 CLJ 734 (CA).

Balachandran v PP [2005] 1 CLJ 85 (FC).

Munusamy Vengadasalam v PP [1987] CLJ Rep 221 (SC).

Chan Pean Leon v PP [1956] 2 MLJ 237 (HC).

PP v Puvaaneswaran Kanipan [2003] 4 CLJ 609 (HC).

Jonaidi Mansor v PP [2002] 1 CLJ 761 (HC).

PP v Reza Mohd Shah Ahmad Shah [2010] 1 CLJ 541 (FC).

PP v Kua Tiong Ann [2009] 1 LNS 195 (HC).

PP v Mohamed Ali [1962] 1 MLJ 257 (HC).

Mohamed Alias v PP [1983] 2 MLJ 172 (HC).

Pie bin Chin v PP [1985] 1 MLJ 234 (HC).

Zulkefly bin Had v PP [2014] 6 CLJ 64 (CA).

D A Duncan v PP [1980] 2 MLJ 195 (FC).

PP v Ling Tee Huah [1982] 2 MLJ 324 (HC).

Dato' Seri Anwar Ibrahim v PP [2002] 3 CLJ 457 (FC).

Sections 12(2), 37(d) & 39A(2) of the Dangerous Drugs Act 1952.

Section 173(m)(i) of the Criminal Procedure Code