Pendakwa Raya v Muhammad Sabree Bin Abd Wahab (TA-41LB-9-12/2024)

This is an appeal by the Prosecution against the decision of the learned Magistrate of the Magistrate Court at Kuala Berang delivered on 2 December 2024, whereby the learned Magistrate acquitted and discharged the Respondent (the accused) at the conclusion of the defence case. The Respondent had been charged under Section 12(2) of the Dangerous Drugs Act 1952 and punishable under Section 39A(1) of the same Act.

The Prosecution, being dissatisfied with the decision, filed a notice of appeal on 12 December 2024. This Court has carefully considered the appeal records, the written submissions of both parties, and all relevant legal authorities cited. After due consideration, I find that the appeal has no merit and ought to be dismissed. The reasons for my decision are set out below.

The charge against the Respondent reads as follows: "Bahawa kamu pada 7/11/2021 jam lebih kurang 09.00 malam bertempat di dalam Kebun Kelapa Sawit Kampung Tok Lawit 21700 Kuala Berang, di dalam daerah Hulu Terengganu, di dalam Negeri Terengganu, didapati telah ada dalam milikan kamu dadah berbahaya jenis METHAMPHETAMINE seberat 20.13 gram (berat bersih). Oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A(1) Akta yang sama."

The prosecution called six witnesses during the prosecution stage. The gist of the prosecution's case was that on 7 November 2021 at about 9.00 pm, acting on information, SP2 (Inspector Sharulhasram bin Ramli) led a raid team to an oil palm plantation in Kampung Tok Lawit, Kuala Berang. Upon arrival, the team saw a Malay male (the Respondent) walking in the plantation. When SP2 identified himself as a police officer, the Respondent attempted to flee but was apprehended by SP4. During the escape, SP2 and SP4 observed the Respondent throwing a pink plastic bottle (Exhibit P8) with his left hand. Examination of the bottle revealed five plastic packets containing crystalline substance later confirmed by SP3 (the chemist) to be methamphetamine weighing 20.13 grams.

At the close of the prosecution case, the learned Magistrate found that a prima facie case had been established and called for the defence. The Respondent elected to give sworn evidence and called two additional defence witnesses: SD2 (the owner of a Yamaha LC motorcycle) and SD3 (the person who allegedly sold drugs to the Respondent).

The defence version was that on the evening of 7 November 2021, the Respondent (SD1) contacted SD3 to purchase drugs. They agreed to meet at a hut in the oil palm plantation. At the hut, SD1 saw Exhibit P8 (the pink bottle) already present. After purchasing the drugs, SD1 went to a nearby water source to prepare the drugs for consumption. While consuming drugs, he heard a noise, saw several people with torches, and ran away because he had been consuming drugs. During the escape, he dropped his torch and his "oga" bottle. He was apprehended by SP4. The Respondent denied that Exhibit P8 was thrown by him, claiming that the bottle was already at the hut and belonged to someone else. The Respondent also testified that there was a Yamaha LC motorcycle at the scene which belonged to SD2 and was borrowed by SD3, and that this motorcycle was later returned to SD2 by the police on the same night.

The learned Magistrate, after evaluating the defence evidence, found that the defence had successfully raised a reasonable doubt against the prosecution's case and acquitted the Respondent.

The Prosecution appeals against the acquittal on several grounds, which can be summarized as follows: that the learned Magistrate erred in finding that the defence had raised a reasonable doubt; that she erred in preferring the defence evidence over the prosecution witnesses' testimony; that she failed to consider that the defence witnesses were not credible and gave contradictory evidence; that she erred in finding that the investigation was not thorough; that she erred in finding that the Respondent had no knowledge of the drugs; and that she failed to conduct a proper maximum evaluation at the close of the prosecution case.

The central issue for determination in this appeal is whether the learned Magistrate was correct in law and fact in acquitting the Respondent at the conclusion of the defence case. More specifically, this Court must determine whether the defence had succeeded in raising a reasonable doubt against the prosecution's case, or whether the Magistrate's decision was manifestly wrong, unlawful, or unsupported by the evidence.

It is well-established that an appellate court should be slow to interfere with a decision of a trial court, particularly where the decision involves findings of fact and the assessment of witness credibility. The trial court has the distinct advantage of observing the witnesses' demeanor and evaluating their testimony first-hand.

In PP v Mohamed Nor & Ors [1985] 2 MLJ 200 (SC), the court held that "it is established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or being unsuitable to the proved facts and circumstances." Similarly, in Dato' Seri Anwar Ibrahim v Public Prosecutor [2002] 3 CLJ 457 (FC), the court stated that "the appellate court will not normally alter the sentence unless it is satisfied that the sentence passed by the lower court is manifestly inadequate or excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed."

While these authorities relate to sentence, the principle applies equally to findings of guilt or innocence. An appellate court will not disturb a trial court's finding of fact unless it is clearly wrong or unsupported by evidence.

It is trite law that the burden of proving the accused's guilt rests entirely on the prosecution throughout the trial. This burden never shifts to the defence. At the conclusion of the defence case, the court must consider whether the prosecution has proven its case beyond a reasonable doubt. The defence is not required to prove its innocence; it is sufficient if the defence raises a reasonable doubt as to the accused's guilt.

In Mat v PP [1963] MLJ 263 (HC), Suffian J (as His Lordship then was) laid down the correct approach: "The correct law for Magistrates to apply is as follows. If you accept the explanation given by or on behalf of the accused, you must of course acquit. But this does not entitle you to convict if you do not believe that explanation, for he is still entitled to an acquittal if it raises in your mind a reasonable doubt as to his guilt, as the onus of proving his guilt lies throughout on the prosecution. If upon the whole evidence you are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it."

Suffian J further summarized the legal position into five clear steps as follows: "(a) If you are satisfied beyond reasonable doubt as to the accused's guilt – Convict.

If you accept or believe the accused's explanation – Acquit.

If you do not accept or believe the accused's explanation – Do not convict but consider the next steps below.

If you do not accept or believe the accused's explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt – Convict.

If you do not accept or believe the accused's explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt – Acquit."

This principle is crucial because it emphasizes that a trial court cannot convict an accused person merely because it does not believe the accused's explanation. The court is still obliged to acquit the accused if the explanation, even if not believed, raises a reasonable doubt in the court's mind as to the accused's guilt. The burden of proving the accused's guilt beyond a reasonable doubt rests throughout on the prosecution.

Suffian J also advised that Magistrates would assist the appellate court if they indicate in their grounds that they are aware of the tests laid down in steps (d) and (e) above. In the present case, the learned Magistrate has clearly shown that she understood these principles. She cited and applied the principle from Mat v PP in her grounds of judgment. APPLICATION OF THE MAT v PP PRINCIPLE TO THIS CASE

Applying the principle established in Mat v PP to the facts of this case, this Court must examine whether the learned Magistrate applied the correct test.

First, the learned Magistrate did not fully accept the defence evidence. If she had accepted the defence evidence, she would certainly have acquitted the Respondent under step (b) of Mat v

Second, the learned Magistrate found that even if she might not fully accept the defence evidence, that evidence nonetheless succeeded in raising a reasonable doubt against the prosecution's case. Accordingly, under step (e) of Mat v. PP, the Respondent was entitled to be acquitted.

The learned Magistrate explicitly stated in her grounds of judgment: "Mahkamah mendapati bahawa penjelasan yang diberikan oleh Tertuduh serta saksi-saksi pembelaan yang dipanggil untuk memberi keterangan telah berjaya menimbulkan satu keraguan yang munasabah terhadap kes pendakwaan." This is a correct application of the principle established in Mat v PP.

The Prosecution in their submissions argued that the defence evidence was a bare denial, an afterthought, and that the defence witnesses were not credible. However, according to the Mat v PP reasonable-doubt scaffold, even if the court does not believe the accused's explanation, the accused remains entitled to an acquittal if that explanation raises a reasonable doubt. The test is not whether the court believes the defence, but whether the defence raises a reasonable doubt.

Having carefully examined the grounds of judgment prepared by the learned Magistrate, this Court finds that she correctly applied the legal principles governing the evaluation of evidence at the conclusion of the defence case, including the clear principle from Mat v PP. The learned Magistrate conducted a thorough analysis of both the prosecution and defence evidence before arriving at her decision.

The learned Magistrate found that the defence witnesses, particularly SD3 (Mohd Zamri bin Mohd), had given credible evidence that Exhibit P8 (the pink bottle) was present at the hut before the police raid. SD3 testified that he saw the bottle at the front of the hut while he was waiting for the Respondent, that he did not know who owned the bottle, and that he left it there. SD3 also confirmed that he had borrowed a motorcycle from SD2 to go to the location, and that he fled when he heard police commands, leaving the motorcycle behind. SD2 confirmed that his motorcycle was returned to him by a police officer at about 10 pm on the night of the incident.

The prosecution's witnesses, particularly SP4 (the raiding team member), denied the existence of any motorcycle or any other individual at the scene. However, the learned Magistrate found that the defence evidence had successfully cast doubt on the prosecution's case. The presence of SD3 at the scene and the motorcycle belonging to SD2 which was returned by the police were facts that the prosecution failed to adequately investigate or explain. This directly raises doubt as to whether Exhibit P8 was indeed in the exclusive possession of the Respondent.

The learned Magistrate also noted that the Respondent is illiterate, having only studied until Standard 2. While the prosecution relied on the signing of the search list (Exhibit P6) to prove knowledge, the Magistrate correctly considered that the Respondent's illiteracy meant that his signature could not be taken as conclusive evidence of knowledge of the contents of the document. This finding is consistent with the principle that the presumption under Section 37(d) of the Dangerous Drugs Act 1952 is rebuttable and must be considered in light of all the circumstances of the case.

Furthermore, the learned Magistrate found that the Respondent's act of running away was explained by his admission that he had been consuming drugs, which is an offence for which he had already been charged and punished. This explanation was reasonable and did not necessarily indicate knowledge of the drugs in Exhibit P8. If the court accepts this explanation, then under step (b) of Mat v PP, the Respondent ought to be acquitted. Even if the court does not fully accept the explanation, that explanation still raises a reasonable doubt, and therefore under step (e), the Respondent also ought to be acquitted.

The learned Magistrate also invoked Section 114(g) of the Evidence Act 1950, which allows the court to presume that evidence which could be produced but is not produced would, if produced, be unfavourable to the person who withholds it. The prosecution's failure to investigate the existence of SD3 and the motorcycle, or to call relevant witnesses, entitled the court to draw an adverse inference against the prosecution. This approach was affirmed in Husin Sitorus v Public Prosecutor [2012] CLJ 205 (CA).

The prosecution contends that the defence witnesses were not credible, that their evidence was contradictory, and that the learned Magistrate erred in preferring the defence version over the prosecution's witnesses. This Court is unable to accept these submissions.

Regarding the alleged contradictions concerning the motorcycle, this Court finds that the differences in recollection between SD1, SD2, and SD3 are not material contradictions. SD1 stated he saw a blue Yamaha LC with registration starting with "TCE" but could not recall the full number. SD2 confirmed he owns a blue Yamaha LC with registration TCE 1650. SD3, when asked about the colour of the motorcycle he used, said "merah hitam" (red black). While this appears inconsistent, it must be remembered that the incident occurred at night in an oil palm plantation, visibility was poor, and SD3 was testifying about an event that happened several years before the trial. Minor inconsistencies in recollection do not render a witness's entire testimony unreliable. As held in Public Prosecutor v Dato' Seri Anwar Ibrahim (No. 3) [1999] 2 CLJ 215 (HC), "discrepancies and contradictions there will always be in a case... what the court has to decide is whether they are of such a nature as to discredit the witness entirely."

More importantly, the core of the defence evidence (that there was a motorcycle at the scene and that SD3 was present) was consistent. SD2's testimony that his motorcycle was returned by a police officer on the night of the incident was not challenged by any evidence from the prosecution. The prosecution did not call any witness to deny that the motorcycle was returned. The failure to investigate this aspect of the defence case is significant.

The prosecution also argues that the Respondent's act of running away demonstrates knowledge of the drugs. However, as noted earlier, the Respondent provided a reasonable explanation for running away: he had just consumed drugs and feared arrest for that offence. This explanation was supported by the fact that the Respondent was indeed charged and punished under Section 15(1)(a) of the Dangerous Drugs Act 1952 for drug consumption. The act of running away, in these circumstances, does not irresistibly lead to the inference that the Respondent knew about the drugs in Exhibit P8. Under the principle in Mat v PP, the Respondent's reasonable explanation raises a reasonable doubt, and therefore the Respondent is entitled to be acquitted.

The prosecution relies on the case of PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (FC) for the proposition that the court must conduct a maximum evaluation of the prosecution evidence at the close of the prosecution case. This Court agrees with that proposition, and the learned Magistrate did exactly that. She found that a prima facie case had been established and called for the defence. The question at the conclusion of the defence case is different: the court must consider the totality of the evidence, including the defence case, and determine whether the prosecution has proven its case beyond a reasonable doubt. The learned Magistrate correctly applied this test, consistent with the principle established in Mat v PP.

The prosecution also cites PP v Mohamed Ali [1962] 1 MLJ 257 (HC) for the proposition that police evidence which is not inherently improbable should normally be accepted. However, as noted in PP v Leong Keng Seong [2021] CLJU 1816 (HC), the evidence of police witnesses cannot now be accepted on its face value; it must be subjected to a maximum evaluation which involves an assessment and scrutiny of their credibility. Furthermore, the principle in Mat v PP requires the court to acquit the accused if there is a reasonable doubt, regardless of whether the court believes the police evidence or not. The learned Magistrate was entitled to find that the prosecution witnesses' denial of the existence of the motorcycle and SD3 cast doubt on their credibility, especially in light of the defence evidence supported by SD2 and

The prosecution further argues that the investigation was thorough and that the issues raised by the defence were not material. This Court disagrees. The presence of another individual (SD3) at the scene, and a motorcycle that was allegedly returned by the police, are material facts. If SD3 was indeed present and fled when police arrived, he could have been the owner of Exhibit P8. The failure to investigate this possibility, despite it being raised during cross-examination of prosecution witnesses, amounts to an incomplete investigation. The learned Magistrate was correct to find that this failure, coupled with the adverse inference under Section 114(g) of the Evidence Act 1950, created a reasonable doubt.

Regarding the Respondent's illiteracy, the prosecution submits that the Respondent signed the search list and therefore must have known its contents. The learned Magistrate found, and this Court agrees, that an illiterate person cannot be presumed to have understood the contents of a document simply because he signed it. This is especially so where the Respondent testified that he was told by the police officer to sign and that he asked about items that were not listed. The Magistrate's finding on this point is reasonable and supported by the evidence.

After carefully considering the appeal records, the submissions of both parties, and the relevant legal authorities including the clear principle from Mat v PP, this Court finds no error in the learned Magistrate's decision. The learned Magistrate correctly applied the legal principles governing the evaluation of evidence at the conclusion of the defence case. She properly considered that the burden of proof rests throughout on the prosecution and that the defence need only raise a reasonable doubt.

The defence succeeded in raising a reasonable doubt through the credible testimony of SD2 and SD3, which was consistent and supported by the Respondent's own evidence. The presence of SD3 at the scene, the motorcycle that was returned by the police, and the fact that Exhibit P8 was seen at the hut before the police arrived, collectively cast sufficient doubt on the prosecution's case. The failure of the prosecution to investigate these matters, and to call evidence to rebut the defence version, entitled the learned Magistrate to draw an adverse inference under Section 114(g) of the Evidence Act 1950.

The prosecution has not demonstrated that the learned Magistrate's decision was manifestly wrong, illegal, or unsupported by the evidence. There is no basis for this appellate court to interfere with the acquittal.

For all the foregoing reasons, the prosecution's appeal against the acquittal of the Respondent is hereby dismissed. The decision of the learned Magistrate dated 2 December 2024 acquitting and discharging the Respondent from the charge under Section 12(2) of the Dangerous Drugs Act 1952 punishable under Section 39A(1) of the same Act is affirmed. Dated: 25 May 2026 Yusrin Faidz Bin Yusoff Judge High Court of Malaya Kuala Terengganu Counsel for the Appellant: TPR Noradila Binti Ab Latif (Together with TPR Nur Atifah Binti Manaf) Timbalan Pendakwaraya Negeri Terengganu, Pejabat Penasihat Undang-Undang Negeri Terengganu, Tingkat 14, Wisma Darul Iman, 20200 Kuala Terengganu, Terengganu Darul Iman. Counsel for the Respondent: Azmi Bin Ahmad Messrs Aziatul & Co. Tingkat 1, Common Ground Petronas Station, Jalan Kolam Air Lama, 68000 Ampang Jaya, Selangor Darul Ehsan.

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

Dato' Seri Anwar Ibrahim v Public Prosecutor [2002] 3 CLJ

Mat v PP [1963] MLJ 263 (HC).

Husin Sitorus v Public Prosecutor [2012] CLJ 205 (CA)..

Public Prosecutor v Dato' Seri Anwar Ibrahim (No. 3) [1999] 2

PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (FC).

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

PP v Leong Keng Seong [2021] CLJU 1816 (HC).

Section 12(2), 15(1)(a), 37(d), & 39A(1) of the Dangerous Drugs Act 1952.

Section 114(g) of the Evidence Act 1950.