Pendakwa Raya v 1. Shafrizal Bin Ishak (45A-36-06/2017)

On arrival at the house at about 3:00pm, PW3 instructed 2 of his men to secure the back door while PW3 and the other team members observed the entrance. The house was an intermediate single storey terrace house.PW3 and his men observed the house for about 10 minutes. According to PW3, he found the front grill of the house was closed but the inner wooden door was opened.

Through the opening of the wooden door, PW3 saw a Malay woman in the hall. PW3 and his team then approached the house and found that the front grill was locked. PW3 called out to the Malay woman in the house and introduced himself and his team as police officers. PW3 then showed his authority card to the Malay woman and instructed the Malay woman to open the front grill. The Malay woman was later identified as Aida Rustini binti Ishak. No one else was in the house at that time. Later at about 3:30pm, PW3 and his team noticed a male 4 Malay approached the house. PW3 identified himself as police and the male Malay was later identified as Ishak bin Othman.

PW3 and his team inspected the house. There were 4 rooms in the house. Other than the 2nd room which was locked, the doors to the other rooms were all opened. PW3 also found that there was a bathroom connected to the 2nd room and accessible through an outer door. The outer door of the connected bathroom could not be opened and appeared to have been locked from the inside. All the other rooms in the house were inspected but nothing incriminating was found. PW3 and his team tried to search the house for the keys to the 2nd room but was unsuccessful. According to PW3, Aida Rustini told him that the keys to the 2nd room were with his brother, the 1st accused, and that the 1st accused was already on his way home.

PW3 searched the house for about half an hour to look for the key to the 2nd room but to no avail.PW3 and his team then decided to force their way in into the 2nd room and they 5 managed to gain entry. Although PW3 and his team managed to enter the 2nd room by force, PW3 said that the door and the door knob were not damaged. According to PW3, the 2nd room looked tidy. Inside the 2nd room, there was a bed, a wardrobe, a side table and a dressing wardrobe. On the dressing wardrobe, there was a picture frame (Exhibit P48) with the photograph of both the accused. The 2nd room was then inspected in the presence of Aida Rustini binti Ishak and Ishak bin Othman, being the occupiers present then.

During the inspection, PW3 pulled the dressing wardrobe away from the wall and leaned it horizontally forward. On the floor where the dressing wardrobe rested, PW3 found 3 transparent plastic packets. Two of the transparent plastic packets each contained 12 smaller transparent plastic packets. Each of the 12 smaller plastic packets in turn contained substance suspected to be “Syabu”. The other transparent plastic packet contained 14 smaller transparent plastic packets and each of them contained substance suspected to be “Syabu” too. Behind the side table which was located beside the bed, 6 PW3 found a digital weighing machine (Exhibit P43), a sealer (Exhibit P42) and a box containing some empty plastic packets(Exhibit P44). In the drawer of the dressing wardrobe, PW3 found 2 marriage certificates (Exhibits P47A and P47B)bearing the names of both the accused, an EPF statement (Exhibit P45) for the 2nd accused and 2 letters from the Companies Commission of Malaysia (Exhibits P46A and P46B)addressed to each accused respectively. From inside the wardrobe, PW3 seized a “Giorgio Armani” shirt (Exhibit P53), a “Vior” printed shirt(Exhibit P52), a pair of “Guess” jeans(Exhibit P50) and another pair of “Plass” jeans(Exhibit P51). PW3 then prepared a search list (Exhibit P14) to record the seizure he made in the 2nd room.

At about 6:00pm, a Malay couple arrived at the house in a car. PW3 introduced himself as a police officer and detained them. The Malay couple were later identified as the 1st and the 2nd accused. PW3 conducted a bodily search on the 1st accused and found a bunch of keys (Exhibit P54) in the right front pocket of his “Levi‟s” jeans(Exhibit P49). PW3 instructed a female 7 member of the raiding team, Lance Corporal Nor Syakinah, to carry out a bodily search on the 2nd accused but nothing incriminating was found on her.

PW3 then brought both the accused to the 2nd room and used the bunch of keys seized from the 1st accused on the door knob. PW3 found that one of the keys seized can be used on the door knob to open the door of the 2nd room. PW3 prepared another search list (Exhibit P15) to record the seizure he made from the 1st accused. PW3 later brought both the accused, Aida Rustini binti Ishak and Ishak bin Othman together with the exhibits seized in the 2nd room back to the “Bahagian Siasatan Jenayah Narkotik”, Seberang Perai Utara for further and follow-up action. PW3 took the suspects and the exhibits seized from the 2nd room with him in the unmarked police van. They set off at about 7:30pm and arrived at the “Bahagian Siasatan Jenayah Narkotik”, Seberang Perai Utara at about 8:00pm. PW3 said that throughout the journey, the exhibits were kept under his custody alone and that no one else had access or contact with the exhibits. 8

PW3 then lodged the Kepala Batas Report No. 6852/16 (Exhibit P12) to record the incident leading to the seizure of the exhibits in the 2nd room and another report vide the Kepala Batas Report No. 6853/16 (Exhibit P13) to record the incident leading to the seizure of the bunch of keys from the 1st accused and the eventual arrest of both the accused. At about 11:45pm on 29.09.2016, PW3 handed over to the investigating officer, Inspector Nur Rafida binti Mustapah (PW7), both the accused, Aida Rustini binti Ishak and Ishak bin Othman together with all the exhibits seized. PW3 also prepared 2 written acknowledgements (Exhibits P17 and P18) to record the handing over to PW7. Later, PW3 led PW7 and Lance Corporal Mohd Amirulaini bin Mohd Basri, the photographer (PW1), to the house for PW1 to take photographs of the house as the crime scene and to enable PW7 to draw out a sketch plan (Exhibits P19 and P20). A total of 15 photographs (Exhibit P3(1) – P3(15)) of the crime scene were taken by PW1. Earlierin the room of the investigating officer, PW1 also took 13 photographs 9 of the exhibits seized by PW3 in the 2nd room (Exhibit P4(1) – P4(13)).

The prosecution called the tenant of the house, Yusmawati binti Faharuddin (PW6), as a witness. In the course of the examination in-chief of PW6, the prosecution made an application to treat PW6 as a hostile witness pursuant to section 154 of the Evidence Act 1950. According to the learned DPP, the oral evidence of PW6 during cross-examination differed from her statement recorded under section 112 of the Criminal Procedure Code. The differences are referred and accordingly marked as P57 and P58 respectively as follows: The first contradiction said— “Tuan rumah ada beri kunci. 3 set kunci diberi.” However, in her statement recorded under section 112 of the Criminal Procedure Code, PW6 said (marked as P57) 10 “Saya bersetuju nak sewa dan deposit telah saya jelaskan masa hari itu juga, Datin Ros terus beri saya serangkai anak kunci rumah.” The second contradiction said— “Shafrizal tidak menetap di rumah tersebut. Dia menetap di Sungai Kok dan sekali-sekali dia balik ke rumah. Perabot-perabot dalam bilik kedua rumah tersebut anak saya nama Maisarah yang punya.” However, in her statement recorded under section 112 of the Criminal Procedure Code, PW6 said (marked as P58) — “Itu bilik Jan dia duduk bilik itu sejak kami duduk sewa sejak 2 tahun yang lalu sehingga sekarang. Selepas berkahwin 3 bulan ini dia 11 duduk di bilik itu bersama dengan isteri dia Fazween. Manakala semua perabot dalam bilik itu Jan yang punya selepas pindah di rumah ini dia beli satu set, katil, almari baju dan almari solek.”

The two contradictions between PW6‟s recorded statement and her testimony was marked and handed over for this Court to view with a copy given to the defence. Having satisfied myself that there are in fact, contradictions, I allowed the prosecution to examine PW6 pursuant to section 154 of the Evidence Act 1950. I shall deal with the prosecution‟s application to treat PW6 as a hostile witness in the later part of this judgment.

The chemist, Noor Fazlina binti Mohd Fauzi (PW4) gave evidence that on 04.10.2016 at about 2:19pm, she received from PW7 a PDRM exhibits bag marked “NR” (Exhibit P10) bearing serial No. 104444 together with the application for analysis form (Pol. 31) (Exhibit P21) bearing Kepala Batas 12 Report No. 6852/16. The PDRM exhibits bag was intact when PW4 received it. PW4 then issued to PW7 an official receipt (Exhibit P22) from the chemistry department bearing laboratory No. 16 – FR – P – 05633. PW4 also affixed on the exhibit a corresponding chemistry department security sticker bearing the same laboratory number. The exhibit was then kept in a strong room at the narcotics section. The keys to the strong room were under the care of the head of the narcotics section. There were no duplicate keys. Each exhibit kept in the strong room is assigned its own unique laboratory number and marking to avoid any mix-up during storage.

Before PW4 begins the weighing process, she calibrated the weighing instrument. PW4 opened the PDRM exhibits bag marked “NR” (Exhibit P10) and found it to contain — NA12” respectively. Each of the 12 smaller transparent plastic packets contained crystalline substance; 13 NB12” respectively. Each of the 12 smaller transparent plastic packets contained crystalline substance; and NC12” respectively. Each of the 14 smaller transparent plastic packets contained crystalline substance.

PW4 then first weighed each of the 12 smaller transparent plastic packets marked “NA1” to NA12” together with its contents. Then, the contents of each of the 12 smaller transparent plastic packets marked “NA1” to NA12” are taken out and the 12 empty plastic packets were weighed. The difference between the first and second weighing gives the net weight for the crystalline substance. The same procedure was carried out for the 12 smaller transparent plastic packets marked “NB1” to NB12” and the 14 smaller transparent plastic 14 packets marked “NC1” to NC12”. PW4 then homogenised all the crystalline substance and carried out the colour test, Gas Chromatography Mass Spectrometer (GCMS) test and the Gas Chromatography Flame Ionization Detector (GC – FID) test.

PW4 found as follows: “NA12” is Methamphetamine weighing 31.58 grammes; “NB12” is Methamphetamine weighing 75.32 grammes; 15 The total weight of Methamphetamine analysed by PW4 is 189.93 grammes. Methamphetamine is listed in the First Schedule of the Dangerous Drugs Act 1952.

After the analysis, PW4 placed the residue of Methamphetamine and the respective original transparent plastic packets in a plastic packet supplied by the chemistry department. PW4 then had the chemistry department plastic packet heat sealed. The chemistry department plastic packet was divided into 2 parts. The original transparent plastic packets were placed in the upper part and the residue of 16 Methamphetamine was placed in the lower part. The plastic packet supplied by the chemistry department was then placed in the original envelope marked “NR”, sealed with the seal of the chemistry department and marked with the laboratory number 16 – FR – P – 05633. It was then kept in PW4‟s steel cabinet in the strong room at the narcotics section. Throughout the analysis, PW4 always had custody of the exhibits. On 05.04.2017 at about 10:00am, PW4 delivered to PW7 the envelope marked “NR” which was sealed with the security label of the chemistry department together with the chemist report (Exhibit P41) bearing laboratory No. 16 – FR – P – 05633.

When the learned DPP closes the prosecution‟s case, witnesses who have not been called were offered to the defence. The learned counsel said that if defence is called, he needs 5 out of the 7 witnesses offered, namely Shukrizal bin Ishak, Wahyu Syahputri, Ummi Hafsah binti Ishak, Aida Rustini binti Ishak and Ishak bin Othman. 17

In Looi Kow Chai v. PP [2003] 1 CLJ 734, His Lordship Gopal Sri Ram JCA (later FCJ) made the following observations in respect of the duty of the court at the close of prosecution: “It therefore follows that there is only one exercise that a judge sitting alone under s. 180 of the Code has to undertake at the close of the prosecution‟s case. He must subject the prosecution evidence to maximum evaluation and to ask himself the question: If I decide to call upon the accused to enter his defence and he remains silent, am I prepared to convict him on the totality of the evidence contained in the prosecution‟s case? If the answer is in the negative, then no prima facie case has been made out and the accused would be entitled to an acquittal.”

The Federal Court in Magendran Mohan v. PP [2011] 1 CLJ 805 FC; [2011] 6 MLJ 1; [2012] 5 MLRA 333; [2011] 2 AMR 18 680 made the following remarks with regard to evaluation of evidence at the close of prosecution: “[25] The test at the end of the prosecution's case is “prima facie case” based on a maximum evaluation of evidence. The evidence has to be scrutinised properly and not perfunctorily, cursorily or superficially. If the evaluation of the evidence results in doubts in the prosecution's case, then a prima facie case has not been made out. The defence ought not to be called merely to clear or clarify such doubts.”.

When the prosecution closes, it is the duty of the court to determine whether the prosecution has succeeded in establishing a prima facie case against the accused of the offence charged. If the court finds a prima facie case has been proved, the accused shall be called upon to make his defence. If the court finds otherwise, the accused must be acquitted without his defence being called. This is the position of the law at the end of the prosecution‟s case pursuant to section 180 of the Criminal Procedure Code. 19

A prima facie case is simply one that is sufficient for the accused to be called upon to answer. The evidence adduced must be such that it can be overthrown only by evidence in rebuttal. The evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen.

The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative, then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt, there can be no prima facie case. (See: Balachandran v. PP [2005] 1 CLJ 85 FC; [2005] 2 MLJ 301; [2004] 2 MLRA 547; [2005] 1 AMR 321). 20

Before I proceed to examine the evidence to determine whether the prosecution has succeeded in establishing a prima facie case against both the accused persons, I shall first determine whether the evidence of PW6, which the prosecution sought to discredit by “cross-examination” pursuant to section 154 of the Evidence Act 1950, ought to disregard, either in part or in toto, as a result of the material contradictions as alleged by the prosecution. Whether PW6 is a hostile witness [26] The prosecution called the tenant, Yusmawati binti Faharuddin (PW6) as its witness. PW6 is the biological mother of the 1st accused and the mother in-law of the 2nd accused. In the course of the examination in-chief, the prosecution applied to treat PW6 as a hostile witness.

A cross-examination is the examination of a witness by the adverse party. This is apparent from a reading of section 137(2) of the Evidence Act 1950. Essentially, section 154 of the Evidence Act 1950 does not provide for the prosecution to 21 “cross-examine” its own witnesses as the procedure under this provision is commonly referred to. When a witness is examined by the same party who calls him, it is still called an examination of that witness but when done pursuant to section 154 of the Evidence Act 1950, that party may put to the witness questions which may be asked in cross-examination. In other words, it merely gives the Court discretion to allow a party to put to his own witness questions which might be put in cross-examination by the adverse party. This procedure is specifically intended to allow that party to examine his own witness when that witness turns hostile. Section 154 of the Evidence Act 1950 reads as follows: “Question by party to his own witness 22

This procedure as encapsulated in S. Lourdenadin’s case was reiterated by the Court of Appeal in the case of PP v. Willey Salleh [2017] 1 LNS 1704 CA; [2017] MLJU 1791; [2017] MLRAU 465; [2017] AMEJ 1416.

The prosecution attempted to discredit its own witness, PW6, on the basis that PW6‟s testimony in Court contradicts her own statement which was recorded by the police under section 112 of the Criminal Procedure Code. According to the learned DPP, the evidence of PW6 differs from that of her recorded statement. The learned DPP marked the 2 contradictions between PW6‟s recorded statement and her testimony and handed them over for this Court to view with a copy given to the defence. Having satisfied myself that there were contradictions between P57 and P58 and the testimony given by PW6 during examination in-chief, I allowed the prosecution to examine PW6 pursuant to section 154 of the Evidence Act 1950. 23

The “cross-examination” of PW6 by the learned Deputy Public Prosecutor pursuant to section 154 of the Evidence Act 1950 and the “re-examination” of PW6 by the learned defence counsel are reproduced as follows: Pemeriksaan (s. 154 Akta Keterangan) oleh TPR: “Soalan: Awak ada seorang anak yang bernama Shafrizal? Jawapan: Ya, saya ada anak nama Shafrizal. Soalan: Nama panggilannya ialah “Jan”? Jawapan: Ya, nama panggilannya ialah “Jan”. Soalan: Pada masa kejadian awak tinggal di No. 28, Taman Orkid Indah, Pongsu Seribu, Kepala Batas, Pulau Pinang? Jawapan: Ya. Soalan: Pada 29.09.2016, anak awak dan isterinya Fazween ditangkap oleh pihak polis? 24 Jawapan: Ya. Soalan: Semasa kejadian pada 29.09.2016 ini, anak awak Shukrizal, Nor Maisarah, Umi Hafsah tidak tinggal di rumah tersebut. Jawapan: Ya. Soalan: Shafrizal dan Fazween menetap di rumah tersebut pada masa kejadian? Jawapan: Tidak setuju. Soalan: Semenjak rumah tersebut disewa daripada Datin Ros hingga ke tarikh tangkapan, Shafrizal yang menetap di bilik No. 2 itu. Jawapan: Tidak setuju. Soalan: Fazween menetap di bilik No. 2 rumah tersebut bersama Shafrizal? Jawapan: Tidak setuju. 25 Soalan: Shafrizal dan Fazween sebenarnya menetap di bilik No. 2 rumah tersebut dan sekali sekala sahaja balik ke Sungai Kok. Jawapan: Tidak setuju. Soalan: Perabot-perabot dalam bilik No. 2 semua dibeli oleh Shafrizal? Jawapan: Tidak setuju. Soalan: Awak hanya diserah satu set kunci oleh Datin Ros semasa masuk ke rumah itu. Jawapan: Tidak setuju. Soalan: Satu set kunci itu tidak dibuat penduanya. Jawapan: Tidak setuju. Soalan: Kunci bilik No. 2 itu selepas diterima daripada Datin Ros, awak bagi kepada Shafrizal? Jawapan: Setuju. 26 Soalan: Shafrizal ialah anak sulung awak dan Fazween ialah menantu awak? Jawapan: Ya. Soalan: Bagaimana hubungan awak dengan Shafrizal dan Fazween? Jawapan: Hubungan saya dengan Shafrizal baik. Hubungan saya dengan Fazween juga baik. Soalan: Shafrizal ialah anak kandung awak? Jawapan: Ya. Soalan: Awak tahu kesalahan yang dituduh terhadap Shafrizal ialah berat dan boleh bawa hukuman mati? Jawapan: Ya. Soalan: Awak tidak sanggup lihat anak awak dihukum gantung. Jawapan: Ya. 27 Soalan: Awak akan cuba tolong Shafrizal dan Fazween setakat yang mampu? Jawapan: Ya, setakat mampu saya akan cuba tolong Shafrizal dan Fazween. Soalan: Cuba tolong ini termasuklah beri keterangan tidak benar di mahkamah? Jawapan: Tidak setuju. Soalan: Keterangan awak yang awak terima 3 set kunci itu adalah tidak benar. Jawapan: Tidak setuju. Soalan: Keterangan awak yang kata Shafrizal dan Fazween tidak mendiami bilik No. 2 rumah tersebut juga tidak benar. Jawapan: Tidak setuju. 28 Pemeriksaan (s. 154 Akta Keterangan) oleh peguam bela: Peguam bela: Tiada soalan.”.

In attempting to discredit PW6, the prosecution challenges her evidence in 2 instances, namely — said that the landlady gave her 3 sets of keys when she rented the house whereas in her statement recorded under section 112 of the Criminal Procedure Code, PW6 said (P57) that the landlady only gave her a set of keys; and PW6 said that the 1st accused did not stay at the house but stayed at Sungai Kok and only come to the house once in a while. PW6 also testified that all the furniture in room No. 2 belonged to her daughter, Maisarah 29

Leading questions may be asked in cross-examination, subject to the following qualifications: 33

the question may not put into the mouth of the witness the very words which he is to echo back again; and

the question may not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact.

The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross-examining party.”. [37] I have the advantage of observing PW6 when she gave evidence and I am very much conscious of her demeanour and tendency when giving evidence which appear to be somewhat bottled-up when examined by the learned DPP but more liberated when responding to questions in cross-examination by 34 the learned counsel. I also took into consideration the fact that PW6 is the biological mother of the 1st accused and by common sense, PW6 would want to protect his son, the 1st accused, from harm even much so in a case such as the present one which carries a capital punishment upon conviction. The learned counsel on the other hand, did not object to the application by the learned DPP to restrict him from asking PW6 leading questions in cross-examination. I therefore allow the application by the learned DPP and direct that questions by the learned counsel of PW6 in cross-examination be properly framed without leading or suggesting answers for them. [38] The matter did not end there. PW6 in fact went all the way to the hilt. Before the learned DPP made the application under section 143 of the Evidence Act 1950, the learned counsel had already suggested the existence of a character called “Mat Siam” who allegedly was a friend of PW6‟s daughter, Maisarah, and that this “Mat Siam” had allegedly used room No. 2 to shower and rest and “Mat Siam” allegedly came before both the accused were arrested. When the learned 35 counsel attempted to seal the identity of this “Mat Siam” character, PW6 blew the cover. It was very obvious that even before the appropriate question was put across by the learned counsel, PW6 immediately said that she can identify “Mat Siam” through the photograph depicted on the identity card of “Mat Siam”. [39] I must add that at that moment, there was a brief pause that felt too long before the learned counsel quickly continued with the proper question as to whether PW6 could identify “Mat Siam” if she were shown his identity card photograph. Of course, PW6 repeated her answer in the affirmative and when a photocopy of the identity card of one Mohd Zamri bin Abu Bakar (ID D60) was shown, PW6 again repeated her earlier answer that it was the photograph of “Mat Siam”. [40] This, to my mind, is the last straw that breaks the camel‟s back. The evidence of a hostile witness may still be considered as distinguished from a witness who has been impeached. But in the present case, I am not prepared to rely 36 on the evidence of PW6 based on the events which unfolded when she was under examination. Based on my close observations of her demeanour, I find that there is everything to show that she is utterly doing everything she could to help her son, the 1st accused. There is no safeguard which this Court can hold on to determine whether in fact her evidence is the truth or had been coloured by her desire to help the 1st accused. To this end, I shall hereby regard that the evidence of PW6 as thoroughly not credible. Nature and weight of the impugned dangerous drugs [41] The chemist (PW4) in her testimony said that she received from the investigating officer, Inspector Nur Rafida binti Mustapah (PW7), a request for analysis form in the manner of Form Pol. 31 (Exhibit P21) together with a PDRM exhibits bag marked “NR” (Exhibit P10) sealed with a seal bearing serial No. 104444. The seal was intact when PW4 received it.PW4 assigned Laboratory No. 16 – FR – P – 05633 for the exhibit and then issued to PW7 the chemistry department official acknowledgement receipt (Exhibit P22) bearing the same 37 laboratory number. The exhibit was then kept in PW4‟s steel cabinet which is located in the strong room of the narcotics section of the chemistry department. The key to the steel cabinet was kept by PW4 and the key to the strong room was kept by the head of the narcotics section. There were no duplicate keys. [42] The exhibit was opened for analysis. Inside the envelope marked “NR” (Exhibit P10), PW4 found—

a transparent plastic packets marked “NA” containing 12 smaller transparent plastic packets marked “NA1” to NA12” respectively. Each of the 12 smaller transparent plastic packets contained crystalline substance;

a transparent plastic packets marked “NB” containing 12 smaller transparent plastic packets marked “NB1” to NB12” respectively. Each of the 12 smaller transparent plastic packets contained crystalline substance; and 38

a transparent plastic packets marked “NC” containing 14 smaller transparent plastic packets marked “NC1” to NC12” respectively. Each of the 14 smaller transparent plastic packets contained crystalline substance. [43] Upon analysis, PW4 found that the crystalline substance in the 7 plastic packets marked “NA3”, “NA4”, “NA7”, “NA8”, “NA9, “NA11” and “NA12”, the 7 plastic packets marked “NB1”, “NB4”, “NB6”, “NB7”, “NB9, “NB11” and “NB12” and the 14 plastic packets marked “NC1” to “NC14” to be Methamphetamine weighing a total of 189.93 grammes. Methamphetamine is listed in the First Schedule of the Dangerous Drugs Act 1952. [44] After the analysis, PW4 placed the residue of Methamphetamine and the respective original transparent plastic packets in a plastic packet supplied by the chemistry department and put them back in the original envelope marked “NR”. PW4 later returned them sealed with the security label of the chemistry department together with the chemist report 39 (Exhibit P41) bearing laboratory No. 16 – FR – P – 05633 to PW7 on 05.04.2017 at about 10:00am. [45] I have considered the evidence of PW4.There was no substantive challenge by the defence in respect of the evidence of PW4 relating to the analysis which she had carried out and I am satisfied that the impugned dangerous drugs are in fact Methamphetamine weighing a total of 189.93 grammes as per the charge. Methamphetamine is listed in the First Schedule of the Dangerous Drugs Act 1952. There was also no challenge by the defence in respect of the handling of the exhibits by PW4 while they were in the custody of PW4 for the analysis and I find that there was no break in the chain of evidence relating to the identity of the exhibits while they were at the chemistry department. [46] Thus, I find that the prosecution has succeeded in establishing this part of the ingredient of the offence. Nevertheless, in order to successfully invoke the presumption of trafficking under section 37(da)(xvi) of the Dangerous Drugs Act 40 1952, it is necessary to examine whether the prosecution has succeeded in establishing possession by both the accused of the Methamphetamine weighing a total of189.93grammes. Possession [47] Speaking for the Federal Court in PP v. Denish Madhavan [2009] 2 CLJ 209 FC; [2009] 2 MLJ 194; [2008] 3 MLRA 116; [2009] 2 AMR 757, His Lordship Abdul Aziz Mohamad FCJ (as His Lordship then was) had this to say about exclusive possession: “[17] The idea of exclusivity features in the meaning of “possession” in criminal law as one of the elements necessary to constitute possession. As Taylor J said in Leow Nghee Lim v. Reg. [1955] 1 LNS 53: “... It is often said that „possession must be exclusive‟. This is ambiguous. Possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession 41 means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. Custody likewise may be sole or joint and it has the same element of excluding others. The main distinction between custody and possession is that a custodian has not the power of disposal. The statement that „possession must be exclusive‟ is often due to confusion of the fact to be proved with the evidence by which it is to be proved. It is essential to keep this distinction clearly in mind, especially when applying presumptions.” [18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17, said that “possession” for the purposes of criminal law involves possession itself - which some authorities term “custody” or “control” - and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th edn, p. 304), in which the exclusive element mentioned by Taylor J appears: 42 “A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.” [19] Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession.”. [48] His Lordship Ahmad Maarop FCJ (as His Lordship then was) in Siew Yoke Keong v. PP [2013] 4 CLJ 149 FC; [2013] 3 MLJ 630; [2013] 4 MLRA 99; [2013] 3 AMR 202 dealt with the issue of exclusive possession in the following prose: “[34] In explaining the meaning of possession, in the off-cited case of Chan Pean Leon v. PP [1956] 1 LNS 17; [1956] MLJ 237 (cited with approval by this court in PP v. Abdul 43 Rahman Akif [2007] 4 CLJ 337; [2007] 5 MLJ 1 and in PP v. Denish Madhavan (supra.)) Thomson J said: “Possession” itself as regards the criminal law is described as follows in Stephen's Digest (9th Edition, page 304): A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if 44 it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly, I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shews such an intention. Or it must be clear that the circumstances in which it is found shew such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it 45 may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so.” [49] In Ghasem Hozouri Hassan v. PP [2018] 6 CLJ 133 FC; [2018] MLJU 601; [2018] MLRAU 180; [2018] 4 AMR 857, the apex court after having referred to and discussed the decisions in Denish Madhavan and Siew Yoke Keong had this to say: “[31] Thus, from the above, when we talk about the issue of custody and control, what is crucial is that the accused must be so situated that he can deal with the proscribed drugs as if it belonged to him, and it must be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so (he had animus possidendi). The 46 intention to deal with the drugs here refer to the element of knowledge. [32] We must not lose sight of the fact that more often than not the accused claims ignorance of the drugs to rebut/negate the element of knowledge. Thus, in the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses.”. [50] In respect of whether possession must be exclusive, the principles that can be distilled from the cases decided by the apex Court may be summarized as follows:

Possession need not be exclusive to an accused person as joint possession between several accused persons is also possible. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property; 47

In determining custody and control of the impugned dangerous drugs, the accused person (or several accused persons in cases of joint possession), must be shown —

to be so situated in such a position whereby he or they can deal with the impugned dangerous drugs as if it belonged to him or them, as the case may be, and

(ii) that he had the intention of dealing with the impugned dangerous drugs as if it belonged to him should he see any occasion to do so (animus possidendi). [51] In evaluating the evidence presented by the prosecution, I find that the evidence relied upon by the prosecution to prove possession by both the accused of the impugned dangerous drugs are— 48

that the key (Exhibit P54) to the 2nd room was found in the right front pocket of the “Levi‟s” jeans (Exhibit P49) worn by the 1st accused during the bodily search;

that on the dressing wardrobe, there was a picture frame (Exhibit P48) with the photograph of both the accused;

that in the drawer of the dressing wardrobe, PW3 found 2 marriage certificates (Exhibits P47A and P47B) bearing the names of both the accused, an EPF statement (Exhibit P45) for the 2nd accused and 2 letters from the Companies Commission of Malaysia (Exhibits P46A and P46B) addressed to each accused respectively; and

that the evidence of PW3 who said that during the raid Aida Rustini told him that the keys to the 2nd room were 49 with his brother, the 1st accused. At that time the 1st accused was on his way to house. [52] I find the fact that despite having entered the house before the arrival of the 1st and the 2nd accused, PW3 and his team did not manage to enter room No. 2 was not challenged by the defence in cross-examination. There was equally no suggestion by the defence in cross-examination of any of the prosecution‟s witnesses that the key to room No. 2 was in fact somewhere in the house but was not found by PW3 and his raiding team. Neither was there any suggestion by the defence that the key to room No. 2 was shown to PW3 or any of the raiding party by Aida Rustini but PW3 nevertheless chose to break his entry into room No. 2.The learned counsel also did not challenge PW3 in cross-examination of the fact that Aida Rustini told PW3 that the key to room No. 2 was with his brother, the 1st accused. In effect, the defence did not challenge the fact that the key to room No. 2 was not left in the house when the raid was carried out. 50 [53] PW3 and the reading team had also scoured the house to look for the key to room No. 2 but they could not find one simply because there was none left in the house. This to my mind is crucial evidence which shows that only the 1st and the 2nd accused had access to room No. 2 and that no one else could have access to room No. 2 without their presence. The fact that when a bodily search was conducted on the 1st accused and the key (Exhibit P54) to room No. 2 was found in the right front pocket of the “Levi‟s” jeans (Exhibit P49) worn by the 1st accused drew home the conclusion that both the accused were occupying room No. 2 at the material time. Based on the fact —

that PW3 and his raiding team did not find any keys to room No. 2 despite having searched the house for it,

that the keys to room No. 2 was not found on the person of Aida Rustini binti Ishak (who was present at the house during the raid) and on Ishak bin Othman 51 (who arrived half an hour later)when bodily searches were carried out,

that PW3 and the raiding team had to force their way in to gain entry into room No. 2, and

that only the keys found on the 1st accused can be used to open room No. 2, had the cumulative effect to negate the possibility of access by others in the house to the room. [54] The raiding team could not gain entry to room No. 2 as it was locked. They had to use force to enter after having unsuccessfully searched the house for the key. When both the accused arrived at the house moments later, the key to room No. 2 was found on the person of the 1st accused. Clearly, access to room No. 2 by others was excluded as only the 1st accused had the key. It is an undisputed fact that both the 1st and the 2nd accused are husband and wife. It is thus not incongruous to make a reasonable inference that the 2nd 52 accused too had access to room No. 2 as much as the 1st accused. [55] When room No.2 was searched, the impugned dangerous drugs were found hidden under the dressing wardrobe. The way that it was hidden suggests that it could not have been hidden casually by someone other than the person who occupies the room. I find that these are credible evidence led by the prosecution and despite they being circumstantial, is sufficient to prove the fact that both the accused had custody and control of the impugned dangerous drugs in room No. 2 to the exclusion of others. Both the accused had the required animus possidendi. [56] I find that these circumstances point to the irresistible conclusion that both the accused had custody and control of the impugned dangerous drugs in room No. 2.I find that on the strength of the circumstantial evidence adduced by the prosecution, there was actual possession of the impugned dangerous drugs in room No. 2 by both the accused. Based on 53 the evidence led by the prosecution that the impugned dangerous drugs were found hidden under the dressing wardrobe, the presumption of knowledge under section 37(g) of the Dangerous Drugs Act 1952 applies. Section 37(g) of the Dangerous Drugs Act 1952 provides as follows:

“Presumptions In all proceedings under this Act or any regulation made there under —

if any dangerous drug is found to be concealed in any premises, it shall be presumed, until the contrary is proved, that the said drug is so concealed with the knowledge of the occupier of the premises;”. [57] Since the prosecution has succeeded in proving possession of the impugned dangerous drugs of a quantity 54 exceeding that as provided for under section 37(da)(xvi) of the Dangerous Drugs Act 1952, the presumption of trafficking applies. Common intention [58] The other element of the offences proffered in the charges against the 3 accused is common intention. Common intention is a creature of section 34 of the Penal Code. It reads as follows: “Each of several persons liable for an act done by all, in like manner as if done by him alone 34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.”. [59] In the case of Namasiyiam Doraisamy v. Public Prosecutor & Other Cases [1987] CLJ Rep 241 SC; [1987] 2 MLJ 336; [1987] 1 MLRA 73, His Lordship Syed Agil Barakbah 55 SCJ (as His Lordship then was) speaking for the Supreme Court observed that— “In law, common intention requires a prior meeting of the minds and presupposes some prior concert. Proof of holding the same intention or of sharing some other intention, is not enough. There must be proved either by direct or by circumstantial evidence that there was (a) a common intention to commit the very offence of which the accused persons are sought to be convicted and (b) participation in the commission of the intended offence in furtherance of that common intention. Where the prosecution case rest on circumstantial evidence, the circumstances which are proved must be such as necessarily lead only to that inference. Direct evidence of a prior plan to commit an offence is not necessary in every case because common intention may develop on the spot and without any long interval of time between it and the doing of the act commonly intended. In such a case, common intention may be inferred from the facts and circumstances of the case and the conduct of the accused. (The Supreme 56 Court (of India) on Criminal Law (1950-1960) by J.K. Soonavala p. 188 to 193).”. [60] The apex court in Chew Wai Keong & Anor. v. PP & Another Appeal [2018] 3 CLJ 681 FC; [2018] MLJU 174; [2018] MLRAU 117; [2018] 3 AMR 221 held the view that where the accused was present at the scene of the crime for the purpose of facilitating or promoting the commission of the offence, such an act would suffice for the purposes of proving common intention under section 34 of the Penal Code. In delivering the judgment of the Federal Court, Her Ladyship Aziah Ali FCJ held inter alia — “Presence at the scene of the crime is not necessary for s. of the Code to apply but presence on the spot for the purpose of facilitating or promoting the offence is itself tantamount to actual participation in the criminal act. It is essential that there should be evidence of common intention, or evidence from which such common intention to commit the offence actually committed can properly be inferred. In the present case, the trial judge found that the circumstantial evidence adduced 57 had established beyond reasonable doubt that the two appellants were the only perpetrators of the two offences in furtherance of the common intention of both of them.”. [61] Her Ladyship Aziah Ali FCJ in Chew Wai Keong's case further reiterated the decision of the Federal Court in Farose Tamure Mohamad Khan v. PP & Other Appeals [2016] 9 CLJ 769 FC; [2016] 6 MLJ 277; [2016] 6 MLRA 337; [2016] 6 AMR 1 whereby His Lordship Raus Sharif PCA (as His Lordship then was) said — “Presence is not necessary to constitute participation in every case. It is sufficient for the accused to have done an act with some nexus to the offence (Sabarudin Non v. PP & Other Appeals [2005] 1 CLJ 466; [2005] 4 MLJ 37 and Manikumar Sinnappan & Ors v. PP [2017] 3 CLJ 505; [2015] 1 LNS 1344; [2016] 2 MLRA 1). A common intention may often be difficult to prove by way of direct evidence in practice, but it can be inferred from the circumstances of the case and the conduct of the accused 58 (Dato' Mokhtar Hashim & Anor v. PP [1983] 2 CLJ 10; [1983] CLJ (Rep) 101; [1983] 2 MLJ 232). In the case of Ong Teik Thai v. PP [2016] 7 CLJ 1 this court held that participation of the individual offender in the criminal act in some form or the other is the leading feature of the principle of constructive liability under s. 34 of the Penal Code. Thus, it is essential that there should be evidence of common intention, or evidence from which such common intention to commit the offence actually committed can properly be inferred. (See Shamsuddin Hassan & Anor v. PP [1991] 3 CLJ 2414; [1991] 1 CLJ (Rep) 428 at 431, Namasiyiam Doraisamy v. PP & Other Cases [1987] 1 CLJ 540; [1987] CLJ (Rep) 241).”. [62] It can be distilled from these cases that the features of common intention are as follows —

there must be some prior meeting of the minds and some prior concerted act with the common intention to commit the offence which is the subject of the charge; 59

that both the accused participated in the commission of the intended offence and that participation is in furtherance of the common intention;

that common intention may develop on the spot and without any long interval of time between it and the doing of the act commonly intended;

that presence at the scene of the crime for the purpose of facilitating or promoting the commission of the offence tantamount to actual participation in the criminal act and is sufficient to prove common intention; and

that presence is not necessary to constitute participation in every case for it is sufficient if the accused have done an act with some nexus to the offence. 60 [63] On the same breadth, it is equally important to note that, as is the case with any other ingredient of an offence, common intention must be proved, either by direct evidence or circumstantial evidence from which such common intention to commit the offence actually committed can properly be inferred. Common intention cannot be inferred from neutral facts or facts which are not capable to suggest the existence of a common intention. [64] In the present case, the circumstantial evidence relied on by the prosecution to prove common intention are —

both the accused are the occupier of room No. 2; and

a digital weighing machine (Exhibit P43), a sealer (Exhibit P42) and a box containing some empty plastic packets (Exhibit P44) were found behind the side table which was located beside the bed. 61 [65] Obviously, the digital weighing machine (Exhibit P43) and the sealer (Exhibit P42) are not common household items. Neither would they be ordinarily kept in a bedroom even if one were to stretch an imagination that these items could in some way be for the household even much so when both the 1st and the 2nd accused were then only been married for slightly more than 3 months according to the marriage certificates (Exhibits P47A and P47B). [66] The fact that they are found kept in room No. 2 together with some empty plastic packets stored neatly in the box raises a strong inference that they are items used for packing the impugned dangerous drugs. It is reasonable to infer that being items not commonly kept in a bedroom, if there was no meeting of minds between both the accused persons the digital weighing machine and the sealer would definitely find their way perhaps in the room used for storage or somewhere in the kitchen. The fact they these items are found in room No. 2 is evidence of participation of both the accused persons in the commission of the offence in furtherance of the common 62 intention to traffic in the impugned dangerous drugs. They are far from neutral and can only irresistibly point to fact of the common intention. Findings at the end of the prosecution’s case [67] After evaluating the evidence adduced during the prosecution‟s case and having had the opportunity to observe and listen to the testimony of the prosecution‟s witnesses while they give evidence in the witness box, I find that the prosecution has called credible witnesses in support of its case against the accused. I am also satisfied that the prosecution has succeeded in proving a prima facie case against both the accused in respect of the charge proffered against them, with each ingredient of the offence having been proved. I hereby call upon both the accused to enter their defence. The defence’s case [68] The three options were explained to each accused and both of them elected to give their respective defence under oath. 63 Evidence of the 1stand 2ndaccused [69] The 1st accused was a “pasar malam” trader, selling clothes. He kept his stock in the boot and at the back seat of his car. The 1st accused married the 2nd accused on 16.06.2016. They merely solemnised the marriage at a mosque and have not had a wedding reception since it was during the fasting month of Ramadhan. They planned to have the wedding reception after the Eid celebration. After marriage, they stayed at the 2nd accused‟s family home at No. 883, Jalan Mutiara 12/3, Sungai Kob, Karangan at Kulim, Kedah since they did not have a place of their own. [70] A few days after Eid, his father in-law fell sick and they had to postpone the wedding reception until his father in-law is well. His parents stayed at the house where he was arrested together with the 2nd accused. It was a rented house. The 1st accused said he went back to the house once in a while because he traded at night. 64 [71] On 29.09.2016, the 1st and 2nd accused went to the house to visit the 1st accused‟s mother. At that time, the 1st accused‟s ailing father in-law was cared for by his sister in-law. On the way to the house, the 1st accused said he received a call from his friend, Mohamad Zakri bin Husin whom he called “Mo”. “Mo” said he wanted to meet up with the 1st accused and the 1st accused asked “Mo” to wait for him at his mother‟s house. [72] The 1st accused said he arrived at his mother‟s house at about 6:00pm. Moments after he alighted from the car, he was arrested and brought inside the house. In the living room, the 1st accused saw his father, his mother, his sister Aida, his sister in-law Wahyu Syahputri and his mother‟s adopted children and grandchildren. In room No. 3, the 1st accused saw his brother, Shukrizal and “Mo” guarded by policemen. [73] The 1st accused said he was then taken to room No. 2. In the room, the 1st accused said he saw drugs placed on the bed. According to the 1st accused, he did not know about the drugs and did not know where it was found by the police. A 65 bodily search was carried out but nothing incriminating was found on his person other than a bunch of keys in his pocket. The bunch of keys consists of the key for his Proton Waja, the key to the main door of his mother‟s house and the key to room No. 2 where the impugned dangerous drugs were found. [74] The 1st accused explained that he and his brother, Shukrizal, made arrangements to rent the house for their parents. At that time his father was not working as he sick. His mother stayed home to care for his father adopted children. At the material time, the house was also occupied by his sister, Aida Rustini and her 2 children. She was divorced when she was pregnant with her second child. [75] There are 4 rooms. His mother and adopted children together with Aida Rustini and her children occupied room No.

His sisters, Nur Maisarah and Ummi Hafsah, occupied room No.

Nur Maisarah occupied room No. 2 occasionally whereas Ummi Hafsah occupied room No. 2 most of the time. His ailing father occupied room No. 3 alone. Room No. 4 was used for 66 storage and sometimes for single occupancy. When the 1st accused married the 2nd accused, they will use room No. 2 whenever they come over and when they do, his sisters would move over to sleep in room No. 1. Nevertheless, the 1st accused said after marriage he only went back 3 or 4 times to spend the night there. [76] Soon after the 1st accused got married, his brother Shukrizal also got married to Wahyu Syahputri. Both Shukrizal and Wahyu Syahputri also used room No. 2. On the date of the arrest, room No. 2 was used by Shukrizal and Wahyu Syahputri. Both of them spent a few nights there prior to the date both the accused were arrested. The 1st accused said he knew “Mat Siam”. “Mat Siam” worked with his sister, Nur Maisarah. The 1st accused had no knowledge of the impugned dangerous drugs or other items found in room No. 2. Other than the evidence about “Mat Siam”, the evidence given by the 2nd accused is substantially similar to that of the 1st accused. 67 Evidence of other witnesses for the defence [77] Apart from both the accused, 3 other witnesses gave evidence for the defence. They are the 2nd accused‟s sister, Iznashahni binti Izham (DW3), the 1st accused‟s brother, Shukrizal bin Ishak (DW4) and DW4‟s Indonesian wife, Wahyu Syahputri (DW5). The evidence of DW3 supports the evidence of the 2nd accused. DW5 in her evidence said that the pair of “Plass” jeans (Exhibit P51) which was seized from inside the wardrobe in room No. 5 belonged to her and that she had purchased it at a pasar malam. [78] DW4 in his evidence said that he was staying at his mother‟s house together with his wife, Wahyu Syahputri (DW5), from 18.09.2016 until he was arrested together with both the accused on 29.09.2016. It was DW4 and the 1st accused who had made arrangements to get the house to be rented by his mother. There are 4 rooms. Room No. 1 was used by his mother together with her adopted children. Room No. 2 was used was shared between his two sisters, Nur Maisarah and 68 Ummi Hafsah. Room No. 3 was used by his father who was sickly. Room No. 4 was used for storage but could also be used for single occupancy. [79] According to DW4, the 1st accused got married to the 2nd accused on 16.06.2016. After marriage, both of them stayed at the 2nd accused‟s house at No. 883, Jalan Mutiara 13/3, Taman Mutiara, Sungai Kob, Karangan, Kedah to care for the 2nd accused‟s ailing father. [80] DW4 explained that he and his wife had occupied room No. 2 from 18.09.2016 until 29.09.2016. The night before the arrest, his sister, Ummi Hafsah, came home and slept in room No. 2. DW4 and his wife slept in room No. 1 together with his mother and sister, Aida Rustini. DW4 said they switched rooms because Ummi Hafsah complained that she could not sleep as Aida Rustini‟s children kept on crying. [81] On the date of the arrest, DW4 said he and his wife went out at about 11:30am together with his mother and adopted 69 children to send Ummi Hafsah to work as they had also wanted to do some groceries shopping. When they left, his father had gone out earlier and only Aida Rustini and her two children were at home.DW4 said he was certain that at that time, room No. 2 was not locked and it was never locked because the family members always went in and out of the room. DW4 believed that his sister, Aida Rustini, could have locked the room because she was the only adult in the house then. [82] DW4 said when they got home at about 4:30pm, the police raiding team was already there. DW4 said he saw his father and Aida Rustini was at home, seated on the sofa in the presence of the police. DW4 said he was handcuffed and brought into the house and taken straight into room No. 2. There were policemen in room No. 2. [83] DW4 was shown drugs on the bed and asked to whom the drugs belonged to. At that time DW4 said he did not know although he believed the drugs were put there by his sister, Aida Rustini. DW4 felt pity for Aida Rustini because her children 70 were still at tender age. DW4 also did not want himself to be implicated. DW4 was later taken by the police raiding team into room No. 3. In room No. 3, DW4 saw his friend, Mohamad Zakri bin Husin, whom he called “Mo”. Moments later, DW4 saw the police brought the 1st accused into room No. 3 and then into room No. 2. After a while, they were all taken to the police station together with “Mo”. His mother, wife and the children were left at home. [84] DW4 said he knew that the drugs, the heat sealer, the digital weighing machine and all other items belonged to Mohd Zamri bin Abu Bakar whom he called “Mat Siam”. DW4 said he and his sister, Aida Rustini, used to pack drugs for a fee for “Mat Siam” but not his brother, the 1st accused, as they both often quarrelled and had disagreements. “Mat Siam” would use room No. 2 whenever he packs the drugs. DW4 had known “Mat Siam” for a long time and “Mat Siam” too was very close to the family. “Mat Siam” used to help his sister, Nur Maisarah, to manage her boutique in Kuala Lumpur. 71 [85] After he was released, DW4 said he contacted “Mat Siam” and asked “Mat Siam” to own up. “Mat Siam” initially said he will but later kept avoiding DW4 and did not pick up calls. On 27.06.2017, “Mat Siam” came to the house. DW4 said he gave “Mat Siam” a barrage because “Mat Siam” did not do anything to help the 1st accused and his wife. However, DW4 said he was instead scolded by his father for being rude to “Mat Siam”. DW4 left the house and went back to his house at Kepala Batas. Later in the afternoon, his father and “Mat Siam” came over and attacked DW4. This has led his wife, DW5, to lodge a police report vide Kepala Batas Report No. 4707/17 (Exhibit D66). After the incident, DW4 moved to Bukit Mertajam. DW4 said he heard that “Mat Siam” was arrested in connection with a drug case in Perlis under case No. RA-81-39-08/2018. Evaluation and analysis at the close of defence [86] At the close of defence, it is the duty of this Court pursuant to section 182A of the Criminal Procedure Code, to consider whether the defence raised by the accused, if any, had cast a reasonable doubt in the prosecution‟s case. In 72 exercising this function, this Court must consider all evidence before it including evidence adduced at the prosecution‟s stage. Section 182A of the Criminal Procedure Code reads as follows: “Procedure at the conclusion of the trial 182A. (1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it.

If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.”. 73 (See also: Gunalan Ramachandran & Ors v. PP [2006] 1 CLJ 857 FC; [2006] 2 MLJ 197; [2006] 1 MLRA 97; [2006] 2 AMR 465and Md. Zainuddin Raujan v Public Prosecutor [2013] 4 CLJ 21 FC; [2013] 3 MLJ 773; [2013] 3 MLRA 351). [87] In Gunalan Ramachandran & Ors v. PP [2006] 1 CLJ 857 FC; [2006] 2 MLJ 197; [2006] 1 MLRA 97; [2006] 2 AMR 465,the apex Court reiterated the principles which must be considered by trial courts at the close of defence in the following words: “To earn an acquittal, the court may not be convinced of the truth of the defence story or version. Raising a reasonable doubt in the guilt of the accused will suffice. It is not, however, wrong for the court to be convinced that the defence version is true, in which case the court must order an acquittal. In appropriate cases it is also not wrong for the court to conclude that the defence story is false or not convincing, but in that instance, the court must not convict until it asks a further question, that even if the court does not accept or believe the defence explanation, 74 does it nevertheless raise a reasonable doubt as to his guilt? It is for this reason that in dealing with the defence story or explanation, the majority of judges rightly prefer to adopt straightaway the legally established „reasonable doubt‟ test, rather than to delve in the „believable and convincing‟ test before applying the reasonable doubt test.”. [88] At the close of prosecution, this Court has made a finding that the prosecution has succeeded in establishing a prima facie case against both the accused. The finding of aprima facie case was predicated upon, inter alia, section 37A of the Dangerous Drugs Act 1952 which allows for double presumptions to be invoked, namely of the presumption of knowledge under section 37(g) of the Act and the presumption of trafficking under section 37(da)(xvi) of the Act. This finding of a prima facie case was made pursuant to the position of the law before the case of Alma Nudo Atenza v. Public Prosecutor [2019] 5 CLJ 780 FC; [2019] 4 MLJ 1; [2019] 3 MLRA 1; [2019] 3 AMR 101. 75 [89] In Alma Nudo Atenza’s case, the Federal Court held that section 37A of the Dangerous Drugs Act 1952 is unconstitutional and the conviction for trafficking in dangerous drugs in Alma Nudo Atenza’s case based on the application of double presumption was quashed as a result. [90] With regard to treatment of the defence where a prima facie case was decided on the strength of one or more rebuttable statutory presumptions, the Court of Appeal in Seyedalireza Seyedhidayatollah Ehteshamiardestani v. PP [2014] 4 CLJ 406 CA; [2014] 6 MLJ 408; [2014] 5 MLRA 705; [2014] AMEJ 0605, prompted that it is for the trial judge to consider whether the presumption had been rebutted on the balance of probabilities. Failure to embark on this exercise amounts to a misdirection by way of non-direction. In delivering the decision of the Court of Appeal, Her Ladyship Tengku Mamun JCA (as Her Ladyship then was), at page 416 (CLJ) held, inter alia, as follows: 76 “… And if the learned trial judge had resorted to the presumption in calling the defence, the law requires that the learned trial judge apply the test of „balance of probabilities‟ in considering whether the appellant had rebutted the presumption (see PP v. Ku Yahya Ku Bahari & Anor [2002] 1 CLJ 113). ...”. And further at page 417 (CLJ): “[23] In the instant case, it is our judgment that the failure of the learned trial judge to make a finding as to which presumption was relied upon for possession and trafficking and the failure to consider whether the appellant had rebutted the presumption, amounts to a misdirection by way of non-direction which has prejudiced the appellant.”. [91] I am also mindful of the Court‟s duty to consider the defence, no matter how weak it may appear to be. The same reminder was reiterated by the Federal Court in Ganapathy Rengasamy v. Public Prosecutor [1998] 2 CLJ 1; [1998] 2 77 MLJ 577; [1998] 1 MLRA 11; [1998] 2 AMR 1973 in the following prose: “It needs to be remembered that however weak a defence may be, trial judges being judges of both fact and law should not just brush aside the defence on the basis that the prosecution witnesses are to be believed and not the defence. Where the law casts the onus of giving an explanation upon an accused person, and the explanation is given, which if consistent with innocence, the court is duty bound to consider whether it might reasonably be true, although not convinced of its truth.”. [92] The Court of Appeal in the case of Nenggani Asmo v. Public Prosecutor [2013] 1 LNS 265; [2014] 1 MLJ 501; [2013] MLRAU 122 recapitulates the circumstances of making a finding of reasonable doubt in the following words: “Although the benefit of every reasonable doubt must be given to the appellant and cannot be withheld from her, the court must not entertain it on grounds which are fanciful or in 78 the nature of speculation; it is based upon reason and common sense and cannot be illogical or irrational. The existence of reasonable doubt is dependent upon the totality of the evidence and on an examination of all the evidence in a fair and reasonable manner and not in isolation.”. [93] The crux of the defence is essentially this:

prior to the arrest on 29.09.2016, both the accused were staying at the 2nd accused‟s house at Sungai Kob, Kedah to care for the 2nd accused‟s ailing father,

whenever both the accused go to their mother‟s house at Taman Orkid Indah, Kepala Batas, they would occupy room No. 2,

on the date of the arrest, both the accused went to the house at Taman Orkid Indah, Kepala Batas to visit their mother, 79

both the accused had no knowledge of the presence of the impugned dangerous drugs in room No. 2,

immediately prior to the arrest, DW4 and his wife (DW5) occupied room No. 2,

on the date of the arrest at about 11:30 am when DW4 left the house together with his wife (DW5), his mother (PW6), his mother‟s adopted children and Ummi Hafsah, only DW4‟s sister, Aida Rustini, was at home together with her two children,

when DW4 left the house, room No. 2 was not locked. In fact, it was never locked because other members of the family also used room No. 2,

Aida Rustini could not be found despite efforts made by the investigating officer (PW7) to trace her, 80

DW4 and Aida Rustini used to pack drugs for “Mat Siam” for a fee and that the packing of drugs would normally be done in room No. 2,

“Mat Siam” disappeared after the arrest and avoided calls made by DW4 only to return about 10 months later,

DW4‟s wife (DW5) confirms that the trousers (Exhibit P51) found in room No. 2 were hers. [94] I find that the explanation given by DW4 as to the reasons he did not inform the raiding party of the fact that the impugned dangerous drugs found concealed under the dressing wardrobe as probable. Had DW4 informed the raiding party of this fact then, surely his sister, Aida Rustini, would have been arrested. It must be remembered that Aida Rustini then had only given birth and had to care for her two young children. [95] DW4 had also admitted that he and Aida Rustini used to pack drugs for a fee for “Mat Siam” and when they did, it will be 81 done in room No. 2. Both the accused stayed at Sg. Kob, Kedah and had only returned to their mother‟s house at Taman Orkid Indah, Kepala Batas on the day of the arrest. DW4 said that prior to the arrest, he and his wife, DW5, had occupied room No. 2 the night before. DW4 also said that when he left the house, room No. 2 was not locked and only Aida Rustini and her children were at home. [96] I also consider the fact that the prosecution was unable to call Aida Rustini as a witness neither could they make her available to the defence because Aida Rustini could not be traced despite being present earlier to be called as a witness. Efforts were made by the investigating officer (PW7) to trace her through verifications with the Immigration Department to determine whether she is still in the country, media releases publicising that her attendance was required as a witness for the case, searches with the National Registration Department and the Road Transport Department to determine her last known address. I find the fact that Aida Rustini had disappeared had lent credence to the evidence given by DW4. 82 [97] When the defence is considered in light of the evidence adduced by the prosecution in its totality, I find that the defence has succeeded in rebutting the presumed knowledge by both the accused of the impugned dangerous drugs which were concealed in room No. 2.It is trite that the prosecution bears the burden to prove its case beyond reasonable doubt throughout. In the circumstances of the present case, I find that the defence has succeeded in rebutting the statutory presumption of knowledge and that the prosecution has failed to discharge the burden of proving the case beyond a reasonable doubt. I hereby acquit and discharge both the accused of the offence as charged. Dated 26 October 2020. Sgd AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMMISSIONER HIGH COURT, PENANG. 83 For the prosecution: DPP Mohd Hafiz bin Hashim (Deputy Public Prosecutor, State of Penang) For the 1st& 2ndaccused: Ghazali bin Ismail (Messrs. Ghazali Ismail & Co.)