ONG SWEE AN v Pendakwa Raya (P-05(M)-461-10/2019)

Criminal Trial No: 45A-79-11/2017 “Bahawa kamu pada 5.1.2017 jam lebih kurang 2.00 petang bertempat dihadapan lif (pertama) tempat parking kereta (level 3), The Light Linear, Jalan Pantai Sinaran, 11700 Gelugor, dalam Daerah Timur Laut, dalam Negeri Pulau Pinang telah mengedar dadah berbahaya, iaitu Methamphetamine seberat 5,369.3 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

(ii) Criminal Trial No: 45A-80-11/2017 “Bahawa kamu pada 5.1.2017 jam lebih kurang 2.00 petang bertempat dihadapan lif (pertama) tempat parking kereta (level 3), The Light Linear, Jalan Pantai Sinaran, 11700 Gelugor, dalam Daerah Timur Laut, dalam Negeri Pulau Pinang telah mengedar dadah berbahaya, iaitu 3,4- Methylenedioxymethamphetamine seberat 2,121.5 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

(iii) Criminal Trial No: 45A-81-11/2017 “Bahawa kamu pada 5.1.2017 jam lebih kurang 2.00 petang bertempat dihadapan lif (pertama) tempat parking kereta (level 3), The Light Linear, Jalan Pantai Sinaran, 11700 Gelugor, dalam Daerah Timur Laut, dalam Negeri Pulau Pinang telah mengedar dadah berbahaya, iaitu Nimetazepam seberat 92.7 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” The prosecution’s case [4] On 5.1.2017, at approximately 2pm, a police team from the Penang IPK Narcotics Criminal Investigation Department arrested the appellant in front of the first lift door at the Level 3 car park of a condominium known as The Light Linear, Jalan Pantai Sinaran, Penang. Prior to that a police team led by Insp Al Taufek bin Osman (SP5) had kept observation of the place, and after 30 minutes SP5 saw the appellant coming out of the first lift of the car park in a suspicious manner holding a black and red bag in his right hand. [5] SP5 then arrested and conducted a physical examination of the appellant but did not find anything incriminating on his person. SP5 then opened the black and red bag with a “North Face” brand (Exhibit P31) and examined its contents in the presence of the appellant and found the following items, which were seized:

7 blocks of compressed packages wrapped in aluminum foil with a layer of transparent plastic cover. Each compressed block contained a transparent plastic packet containing pieces of crystalline granular substance suspected to be “syabu”;

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover. This compressed block contained a transparent plastic packet with 5,000 ecstasy pills;

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover. This compressed block contained a transparent plastic packet with 5,000 ecstasy pills;

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover. This compressed block contained a transparent plastic packet with 5,000 ecstasy pills;

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover. This compressed block contained a transparent plastic packet with 5,000 ecstasy pills;

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover containing 20 bundles banded with rubber bands. Each bundle consisted of 25 aluminum foils of 10 pills each suspected to be “Eramin 5” pills;

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover containing 20 bundles banded with rubber bands. Each bundle consisted of 25 aluminum foils of 10 pills each suspected to be “Eramin 5” pills;

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover containing 20 bundles banded with rubber bands. Each bundle consisted of 25 aluminum foils of 10 pills each suspected to be “Eramin 5” pills;

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover containing 20 bundles banded with rubber bands. Each bundle consisted of 25 aluminum foils of 10 pills each suspected to be “Eramin 5” pills; andin

1 compressed packet wrapped in aluminum foil with a layer of transparent plastic cover containing 20 bundles banded with rubber bands. Each bundle consisted of 25 aluminum foils of 10 pills each suspected to be “Eramin 5” pills. [6] PW5 seized all these items and informed the appellant of the reason for his arrest. The seized items were then handed over to the Investigating Officer, Inspector Mohd Khairi bin Mohamed Ali (PW6), who in turn sent them to the chemist, Noor Fadzlina binti Mohd Fauzi (PW4). The chemical analysis by the chemist (PW4) found that the drugs seized by PW5 were Methamphetamine weighing 5369.3 grams, 3,4- Methyllenedioxymethamphetamine weighing 2121.5 grams and Nimetazepam weighing 92.7 grams. [7] The appellant was then charged with the three offences of trafficking in dangerous drugs under s.39B(1)(a) of the Act. Prima facie case [8] The prosecution contended that when the raid and arrest was made, apart from the appellant and members of the raiding party, there was no one else in the vicinity of car park lift landing area. The place was well lit and only the appellant came out of the 3rd floor car park elevator carrying the bag (P31). [9] The prosecution submitted that they had established a prima facie case as required under s.180(1) of the Criminal Procedure Code. In a charge under s.39B(1)(a) of the Act, the prosecution is under a duty a prove the essential ingredients of the offence, namely:

that the subject matter of the charge is dangerous drugs as defined in the Act;

that the accused was in possession and had knowledge of the impugned drugs; and

that the accused was trafficking in the impugned drugs. [10] In this regard, the learned trial judge had carried out a maximum evaluation of the evidence, as is required at the close of the prosecution’s case, and found that the prosecution had successfully established a prima facie case as required under s.180(1) of the Criminal Procedure Code, in accordance to the law as settled by the Federal Court in several leading case authorities, including Magendran Mohan v PP [2011] 1 CLJ 805; [2011] 6 MLJ 1 and Balachandran v PP [2005] 1 CLJ 85; [2005] 2 MLJ

The learned trial judge had carried out a comprehensive evaluation of the evidence and the issues raised by the appellant’s counsel at the close of the prosecution’s case, as is evident in paragraphs 17 to 37 of the Grounds of Judgment. [11] The learned trial judge correctly ruled that by virtue of the weight of the drugs found to be in the possession of the appellant the prosecution can rely on the statutory presumption of trafficking provided in the Act, for the first two charges, namely:

under s.37(da)(xvi) in respect of the first charge for trafficking in 5,369.3 grams of Methamphetamine; and

under s.37(da)(xxii) in respect of the second charge for trafficking in 2,121.5 grams of 3,4-Methylenedioxymethamphetamine. [12] However, in respect of the third charge, the learned trial judge found that the statutory presumption of trafficking in s.37(da) of the Act does not apply. In this regard, the learned trial judge stated as follows in the Grounds of Judgment: [40] However, the position is somewhat different for the third charge relating to Nimetazepam. Although listed as dangerous drugs under the First Schedule of the Dangerous Drugs Act, 1952, section 37(da) of the Act does not accord any presumption of trafficking for Nimetazepam. In this regard, I am unable to accede to the submissions of the learned DPP that the act of the accused in carrying the black and red bag containing 92.7 grammes of Nimetazepam fulfills the meaning of “transporting” being one of the elements in the definition of trafficking under section 2 of the Act. The decision of the apex Court in Public Prosecutor v Abdul Manaf Muhamad Hassan [2006] 2 CLJ 29 FC; [2006] 3 MLJ 193; [2006] 1 MLRA 319; [2006] 3 AMR 89 is instructive that the mere act of transporting or carrying does not make one a trafficker under the scheme of the Dangerous Drugs Act 1952. In order to fulfil the element of transporting in the definition of trafficking under section 2 of the Act, there must be distinct evidence of transporting or carrying in the sense which promotes the distribution or supply of the impugned drugs in question to someone else. Hence, I find that in respect of the third charge, although the prosecution has succeeded in proving possession and knowledge, the prosecution has failed to prove any affirmative evidence of trafficking in the 92.7 grammes of Nimetazepam. [13] Hence, the learned trial judge found that the prosecution had failed to establish a prima facie case of trafficking under s.39B(1)(a) of the Act, but instead found that the prosecution had succeeded in establishing a prima facie case of possession of the Nimetazepam. Accordingly, the learned trial judge used his discretionary power under s.158 of the Criminal Procedure Code to amend the third charge to one of possession of dangerous drugs, to wit, the 92.7 grams of Nimetazepam, an offence under s.12(2) of the Act. The amended charge was framed and the same was read and explained to the appellant: “Bahawa kamu pada 05.01.2017 jam lebih kurang 2:00 petang di hadapan lif (pertama) tempat letak kereta (Tingkat 3), bangunan The Light Linear, Jalan Pantai Sinaran, 11700 Gelugor, dalam Daerah Timur Laut, dalam Negeri Pulau Pinang telah memiliki dadah berbahaya, iaitu ‘Nimetazepam’ seberat 92.7 gram dan dengan itu kamu telah melalukukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 12(3) Akta yang sama.” [14] The appellant pleaded not guilty to the amended third charge. The High Court then acted on the provisions of s.162 of the Criminal Procedure Code and enquired of both the prosecution and defence whether they wished to recall any witnesses who had testified earlier for further examination, or to call any fresh witnesses, in respect of any evidence which may be material or relevant to the amended charge. However, both the prosecution and defence declined to do so. Accordingly, the High Court called the appellant to enter defence on the first two original charges and the amended third charge. The appellant elected to testify under oath. He also called 3 other witnesses in support of his defence. The defence case [15] The appellant’s defence was as follows:

On 5.1.2017 the appellant was at his office and received a phone call at about 12:00 noon from one Liang Chee Zheng who said that he wanted to sell his white BMW bearing registration number PMU

Liang Chee Zheng said he was in the vicinity of Gelugor, i.e. in the vicinity of the condominium and wanted to bring the car to the appellant for inspection. The appellant agreed and asked Liang Chee Zheng to bring the car over to his apartment at about 12:45 noon.

The appellant said that he then met Liang Chee Zheng, who handed to the appellant the BMW car together with its key and a photocopy of his identity card and vehicle registration card.

At about 1:45 pm, the Appellant received a call from his "runner", Ng Kok Heng who was waiting at the parking at level 3 of the appellant's apartment. The appellant then went down to meet Ng Kok Heng to hand over the car key and documents for the white BMW. The appellant stated that the moment he stepped out of the elevator, a group of people rushed towards him. The appellant later learnt that this group of people were policemen. The appellant contended that the bag (P31) which he was carrying was searched but nothing incriminating was found.

The appellant said the police found the key to the white BMW on his person together with the registration card. The police looked for the white BMW and after a search, found drugs in the boot of the white BMW. According to the appellant, the police took the drugs found in the boot of the white BMW and packed them in the black and red "North Face" branded bag which he had carried earlier.

In essence, the appellant contended that the impugned drugs were actually recovered from the boot of a white BMW bearing registration number PMU 933 parked at Level 3 car park, owned by one Liang Chee Zheng. And that a contrary inference could be drawn in that Liang Chee Zheng was the real owner of the impugned drugs.

The appellant contended that the Investigating Officer (SP6) did not take any effort to investigate the owner of the cars and record statement of the owners, particularly the owner of the white BMW bearing registration number PMU 933 despite this defence being put to the prosecution’s witnesses during the prosecution’s case.

The appellant submitted that the defence version of the impugned drugs being found in the boot of the white BMW No. 933 and later put in the black and red bag by the police was supported by the testimony of DW4 (Ng Kok Heng), who is said to have witnessed the same. DW4 testified that he saw this from a distance of about 10 meters from the appellant.

There were a total of three cars seized by PW5 at the car park of apartment, including the white BMW No. PMU 933, as stated in the search list tendered by the defence and marked as Exhibit D55. This search list, according to the appellant, confirmed the defence version that the impugned drugs were found in the white BMW No. PMU 933 for otherwise there was no necessity for the car to be seized. Liang Chee Zheng was neither called, nor was he offered to the defence at any time.

The photographs produced by the defence, especially Exhibit D60(1) and D60(3), showed a CCTV camera which was positioned right at the place where the arrest took place and could have recorded the incident but there was no effort by the investigating officer to investigate the CCTV recording. [16] The learned trial judge had considered the defence raised by the appellant, and this can be seen in paragraph 60 of the Grounds of Judgment: [60] In support of the defence, the learned counsel submits that the defence has succeeded in raising a reasonable doubt in the prosecution’s case. The contention advanced by the learned counsel in support of the defence may be summarized as follows:

the defence was not an afterthought as it has been adequately suggested to the prosecution’s witnesses during cross-examination;

the line of defence which was put through during the prosecution’s case has crystallized when the evidence presented by the defence is considered, namely from the evidence of the accused himself (DW1), the accused’s wife, Hong Swee Mei (DW2), Chan Beng Hooi (DW3) as the person who developed the photographs taken of the parking lot at level 3 of the apartment and Ng Kok Heng (DW4) who was the “runner” for the accused and had witnessed the incident on the material date;

Liang Chee Zheng is not a fictitious character. The fact of his existence and that he was the registered owner of the white BMW No. PMU 933 were proven from the photocopy of his identity card (Exhibit D63) and the photocopy of the registration card (Exhibit D59);

the accused explained that the impugned dangerous drugs found in the boot of the white BMW No. PMU 933 which were put in the black and red bag by the raiding team did not belong to him and that Lian Chee Zheng had just delivered the car to him for sale;

the defence of the accused that the impugned dangerous drugs were found in the boot of the white BMW No. 933 and later put in the black and red bag was witnessed by DW4;

the defence of the accused that the black and red bag only contained documents and that when the raiding team brought the accused up to his apartment the documents were taken out from the black and red bag leaving only the impugned dangerous drugs which was earlier taken from the boot of the white BMW No. 933 was confirmed by DW2;

there were a total of three cars seized by PW5 at the apartment including the white BMW No. PMU 933 as evidenced by the search list tendered by the defence and marked as Exhibit D55. This search list confirmed the defence’s version that the impugned dangerous drugs were found in the white BMW No. PMU 933 for otherwise there was no necessity for the car to be seized; and

the photographs produced by the defence, especially Exhibit D60(1) and D60(3), shows a CCTV camera which was positioned right at the place where the arrest took place and could have recorded the incident but there was no effort by the investigating officer to investigate the CCTV recording. [17] The learned trial judge correctly reminded himself of his duty at the close of the defence case, which is for the Court to consider whether the defence raised by the appellant had cast a reasonable doubt in the prosecution’s case, as is required under s.182A of the Criminal Procedure Code. And in exercising this function, the trial court must consider all the evidence adduced before it, including those adduced during the prosecution’s stage. See: Md. Zainuddin Raujan v Public Prosecutor [2013] 4 CLJ 21 FC; [2013] 3 MLJ 773; [2013] 3 MLRA 351. [18] Accordingly, the learned trial judge had at the close of defence case scrutinized all the evidence before the Court and had found as follows: [68] In scrutinizing the defence, I find that the defence did not place before this Court sufficient basis for a finding to be made that the impugned dangerous drugs were found in the white BMW No. PMU 933 as contended. First of all, this Court has made a finding on the credibility of witness at the close of prosecution. This finding must, logically speaking, be coherent with the version put forward by the prosecution. Otherwise, a contrary finding of credibility would have been made. Secondly, it is trite that police witnesses must be regarded as credible unless there is evidence to suggest that they should not be so believed. ... [70] In the present case, there is not a shred of evidence which suggest or even slightly suggesting that the police has an axe to grind insofar as the accused is concerned. There was no suggestion of any ill-will against the accused or any ulterior motives on the part of the raiding party to frame-up the accused. The accused faces a very serious charge which carries with it the prospect of a death sentence or life sentence upon conviction. For such a suggestion to carry weight, there must be cogent reasons advanced to demonstrate why the frame-up theory conjured by the defence must be plausible. [19] The learned trial judge then explained at length in paragraphs 71 to 77 of the Grounds of Judgment why he found the evidence of DW2 and DW4 to be lacking credibility. He found a number of improbabilities in DW4’s testimony when considered against the totality of evidence. And explained why he preferred the evidence of the police witnesses to that of the defence witnesses. In the overall, the learned trial judge found that the version of the police witness, particularly PW5, that the drugs were found inside the black and red bag carried by the appellant was more plausible, and that the prosecution’s evidence remained credible. Thus, the learned trial judge found that the appellant had failed to raise any reasonable doubt in the prosecution’s case in respect of all the charges and accordingly convicted him on the two original charges under s.39B(1)(a) and the amended charge under s.12(2) of the Act. The appellant was sentenced to mandatory death for the two offences under s.39B(1)(a) and to 3 years imprisonment from date of arrest in respect of the offence under s.12(2) of the Act. Issues in this appeal [20] Learned counsel for the Appellant raised several issues in this appeal. We shall deal with them now. Issue 1 – The learned trial judge erred in finding that there was actual possession of the drugs by the appellant. [21] The learned trial judge found that the appellant had actual possession of the impugned drugs and that he also had the requisite knowledge of those drugs. And in this regard the learned trial judge stated as follows in paragraphs 28 and 29 of the Grounds of Judgment: [28] On the strength of the evidence adduced by the prosecution, I find that the accused was in possession of the impugned dangerous drugs. The possession was, affirmatively, physical. [29] ... In determining whether the accused had knowledge of the impugned dangerous drugs in the black and red bag, the fact that the black and red bag contained nothing else but the impugned dangerous drugs in large quantities invites a strong and reasonable inference that the accused had the necessary knowledge ... I find that the accused had the power to deal with the impugned dangerous drugs contained in the black and red bag he was found carrying. There is no evidence to negate or suggest a reasonably contrary inference of this fact. [22] The appellant contended that the impugned drugs were actually recovered from the car boot of the white BMW No. PMU 933 owned by Liang Chee Zheng, which contention the learned trial judge rejected. In that regard, learned counsel for the appellant attacked this finding on several fronts, namely:

that apart from the oral evidence of the Arresting Officer (PW5), there is no other evidence adduced by the prosecution that the impugned drugs were actually recovered from the black and red bag (P31) which the appellant was carrying at the material time;

that the credibility of PW5, who appeared as a hesitant witness, is wanting and his evidence should be evaluated with care and caution, and although the prosecution had the opportunity to call additional police witnesses from the raiding team to fill the gaps in SP5’s evidence, this was not done;

that despite CCTV footages (Exhibit P22) being tendered by the prosecution, there were no images from these CCTV footages which showed the recovery of the impugned drugs from the said black and red bag by the police raiding team;

that the result of the fingerprint dusting by PW6 on the packages containing the drugs, which was negative, was consistent with the appellant’s assertion that the drugs were found in the white BMW car and not in the bag carried by the appellant;

that since the white BMW car belonged to Liang Chee Zheng, a contrary inference could be drawn in that the said Liang Chee Zheng was the actual owner of the impugned drugs recovered from the car;

that since there is more than one inference that could be drawn from a set of facts in a criminal case, the inference most favourable to the accused should be adopted. [23] We had considered these arguments and found no merit in them. The law is settled in that the prosecution need not call any specific number of witnesses to prove any fact or fact in issue. See: s.134 of the Evidence Act. This principle was reaffirmed by the Federal Court in Md Zainudin Raujan v. PP [2013] 4 CLJ 21; [2013] 3 MLJ 773, where the Court held: PW5 was a police witness. The learned trial judge found him to be a credible witness. It is true that the prosecution's case rested solely on the evidence on PW5. However, under the law there is no requirement for his evidence to be corroborated. The learned trial judge believed PW5 and as such his evidence was sufficient to establish the case for the prosecution. Any requirement for PW5's evidence to be corroborated will conflict with Section 134 of the Evidence Act 1950 which provides that no particular number of witnesses shall in any case be required for proof of any fact (see Balachandran v. PP [2005] 1 CLJ 85). And in an earlier decision of the Federal Court in Yusri Pialmi v PP [2010] 6 CLJ 878, the Court held as follows: [5] We shall first deal with the second ground of appeal. Learned counsel for the appellant submitted that it is the defence case that the drug was not found in the possession of the appellant. In this regard he contended that the prosecution had relied exclusively on the evidence of SP2 to prove that the appellant was in possession of the drugs but took no further steps to call other members of the police raiding party nor offered them to the defence as witnesses. For this he asked the court to invoke s. 114(g) of the Evidence Act. [6] With respect to the learned counsel for the appellant we do not agree with him. We are of the view even without the calling or offering as witnesses from amongst the other members of the police raiding party, the prosecution's case is complete with the evidence of SP2. The learned trial judge and the majority of the Court of Appeal had found SP2 to be a witness of truth. SP2 was not an interested witness, but a police officer performing his duties. He had related what he actually saw and did on that day. SP2's evidence is credible and ought to be believed. (See the cases of PP v. Mohamed Ali [1962] 1 LNS 129 and PP v. Teh Cheng Poh [1979] 1 LNS 82). [7] We also find there is no withholding or suppression of material evidence by the prosecution so as to invoke the application of s. 114(g) of the Evidence Act against the prosecution's case. In fact SP2's evidence has revealed the names of the other members of the police raiding party. There was no concealment whatsoever. It is also to be noted that there is no challenge by the defence on the evidence of SP2 of any ulterior motive that he might have to concoct evidence against the appellant. On this point there is a principle of law which states that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness' testimony. (See the case of Wong Swee Chin v. Public Prosecutor [1980] 1 LNS 138). We therefore hold there is no merit in the arguments of learned counsel for the appellant on this ground. [24] Similarly in our case, PW5, a police officer, was the sole witness called by the prosecution to prove the element of possession of the drugs by the appellant, and the learned trial judge found PW5 to be a credible witness. Contrary to the submissions by learned counsel for the appellant, there were no gaps in the evidence of PW5. He gave clear evidence of how he and his team of police officers had carried out observation at the car park before arresting the appellant when he came out of the elevator carrying the black and red bag containing the drugs. The learned trial judge was satisfied with both the quality and quantity of the evidence adduced by PW5. In the circumstance, there is no requirement in law for the prosecution to call additional witnesses to corroborate the evidence of PW5. PW5’s evidence was sufficient to establish an important element of the prosecution’s case, namely that the appellant was in possession of the drugs and that he had knowledge of the drugs possessed. [25] As to the appellant’s contention that the drugs were actually found in the boot of the BMW car and not in the bag carried by the appellant, we found that the learned trial judge had considered this argument in quite some detail before rejecting the same. The learned trial judge found the evidence of DW2 and DW4 to be not credible, and he had given his reasons for coming to that conclusion. We do not find any misdirection on the part of the learned trial judge in coming to that conclusion. The learned trial judge had the audio-visual advantage of observing the witnesses and we do not find any reason to interfere with his findings in respect of their credibility. [26] Learned counsel for the appellant further submitted that when there are two inferences to be drawn from the established facts, the inference most favourable to the appellant should be adopted. And in this regard, counsel argued that the inference that the drugs belonged to Liang Chee Zheng should have been made by the High Court. We are unable to accept that contention as there is no credible evidence to establish the fact of the drugs being found in boot of the white BMW car in the first place. Only if it can be shown that the drugs were actually found inside the boot of that car would such an inference have some basis. The fact of the matter is that on the basis of credible evidence, the trial court found that the drugs were found inside the bag carried by the appellant. We do not find any reason to disagree with the learned trial judge’s acceptance of the evidence of the prosecution that the drugs were found inside the bag carried by the appellant, and rejection of the appellant’s contention that the drugs were found in the boot of the BMW car. In this regard, the existence or otherwise of Liang Chee Zheng, the owner of the BMW car, does not matter. The fact that the white BMW car bearing registration number PMU 933 was seized does not by itself make the owner of that car an important or even a relevant witness, when the nexus between the BMW car and the seized drugs has not been established by credible evidence. Issue 2: The learned trial judge failed to find the shoddy investigation done by the Investigating Officer had created many gaps in the prosecution’s case. [27] Learned counsel for the appellant contended that the Investigating Officer (PW6) had failed to conduct a fair and thorough investigation, which had prejudiced the appellant and compromised his defence. Counsel further submitted that the following failure on the part of the Investigating Officer had seriously infringed the appellant’s fundamental right to a fair trial:

SP6’s failure to investigate, seize and produce the complete CCTV footages at the said premises despite being aware that there were many CCTV cameras at the premises; and

SP6’s failure to investigate the owners of the cars which were seized at the premises. Learned counsel for the appellant further contended that despite his lengthy submissions on these issues at the close of the prosecution’s case, the learned trial judge had failed to address them in his Grounds of Judgment. [28] Now, as for the CCTV recordings which was tendered in a CD-R (Exhibit P22), the learned trial judge had, upon objections raised by the defence, ruled them inadmissible on grounds of hearsay as:

there was no certificate under s.90A of the Evidence Act 1950 tendered; and

the maker of the CD-R, one Dominic Savior a/l Silvanathan was not called as a witness during trial. [29] Having taken that stand, the appellant cannot now be heard to complain about the alleged failure of the Investigating Officer to seize and produce the complete CCTV footages at the said premises. In the circumstance, the learned trial judge was entirely correct in disregarding the CCTV footages and not making any reference to them in his Grounds of Judgment. Hence, we are of the considered view that this does not amount a denial of a fair trial as contended by learned counsel for the Appellant. [30] As for the complaint that the Investigating Officer had failed to investigate the owners of the cars that were seized, including the white BMW No. PMU 933, we found this to be entirely misplaced. The ownership of the cars have no bearing to the prosecution’s case. The prosecution’s case was that the drugs were found in the bag carried by the appellant. The case for the defence was that the drugs were found in the BMW car boot. DW4 who is said to have witnessed the arrest of the appellant and the recovery of the drugs from the car boot had never come forward during the course of police investigations to inform the Investigating Officer what he had witnessed. In this regard, the learned trial judge had stated in the Grounds of Judgment: [74] ... DW4 could have at least come forward during the arrest and perhaps explain to the raiding team that the white BMW No. PMU 933 which DW4 said contained the impugned dangerous drugs in its boot did not belong to the accused or DW4 could also lodge a police report. This was not done by DW. Instead DW4 kept quiet and only relate all these after more than 2 years later when he gave evidence in support of the accused’s defence. After considering the evidence of DW4 in this regard, I find that his evidence is not the least probable in the circumstances. Similarly, DW2, the appellant’s wife, despite being told to get in touch with the Investigating Officer if she had anything to explain or clarify or had any evidence to offer, also did not seek out the Investigating Officer to relay any information that would be useful to exculpate the appellant. She too only told her version of events during trial of the appellant some two years later. [31] In the circumstance, we fail to see how the Investigating Officer could be said to have carried out shoddy investigations to the detriment of the appellant. Thus, we do not find any merit in the arguments raised by learned counsel for the appellant as regards the issue of an unfair trial arising from shoddy investigations. Issue 3: The learned trial judge had erred in law and fact for failing to invoke adverse inference under s.114(g) of the Evidence Act [32] Learned counsel for the appellant submitted that since the appellant’s defence was a direct antithesis of the prosecution’s version, it had become incumbent upon the prosecution to call Liang Chee Zheng, the owner of the white BMW car. Learned counsel further contended that adverse inference under s.114(g) of the Evidence Act ought to be invoked as Liang Chee Zheng was neither called as a prosecution witness, nor offered to the defence. [33] We found no merit in this argument. Adverse inference under s.114(g) of the Evidence Act cannot be invoked in the circumstances of the facts in this case. The ownership of the white BMW car No. PMU 933 was never a fact in issue. The documentary evidence shows Liang Chee Zheng to be the registered owner of the car. The fact in issue is where the drugs were found. The High Court was satisfied, based on the evidence of the raiding officer, that the drugs were found in the bag carried by the appellant. In the circumstance, the non-calling of Liang Chee Zheng does not in any way jeopardize the prosecution’s case or the trial as a whole. Issue 4: The learned trial judge failed to appreciate the defence case [34] The learned trial judge had evaluated and considered the defence raised by the Appellant in very minute detail, and this can be found from paragraphs 65 to 77 of the Grounds of Judgment, and in paragraph 68 he had made the following finding: [68] In scrutinizing the defence, I find that the defence did not place before this Court sufficient basis for a finding to be made that the impugned dangerous drugs were found in the white BMW No. PMU 933 as contended. ... We find that the learned trial judge had considered each and every element of the defence raised and in rejecting them had given cogent reasons. Hence, we find that this complaint by the appellant that the learned trial judge had failed to consider his defence is baseless and devoid of merit. Conclusion [35] Thus, in the overall we found that the issues raised by the appellant in this appeal were unmeritorious and did not warrant appellate intervention. We found the conviction safe. Accordingly, we dismissed all the appeals and affirmed the conviction and sentence on all three charges. Dated 16th of June 2023. -sgd-Vazeer Alam Mydin Meera Judge Court of Appeal Putrajaya Counsel for the Appellant: Gooi Soon Seng Ooi Pen Lyn Messrs Gooi & Azura 12-1&14-1, JalanSerkut, Taman Pertama, Cheras 56100 Kuala Lumpur Counsel for the Respondent: