The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto." [42] In Mohd Bakri Belaho v PP [2008] 2 CLJ 240, this Court said as follows at pages 279-280: "Subsequent Conduct of The Appellant [80] The action and the conduct of the appellant, absconding to the south, hundreds of miles away from the scene of the crime, unfortunately to be arrested at Kota Tinggi, Johore Bahru merely strengthened the prosecution's case. The Evidence Act provides that the conduct of any party to any fact in issue is relevant. In fact the conduct of any person, an offence against whom is the subject of any proceeding, is relevant if the conduct influences any fact in issue or relevant fact, whether previous or subsequent (s.8 of the Evidence Act). Under illustration (i) of s. 8 it is provided for that if "A" were to be accused of a crime, the "facts that after the commission of the alleged crime he absconded ... are relevant". [81] In the case before us, the uncanny facts of the subsequent conduct of the appellant of absconding to Kota Tinggi after having committed the offence of murder, fits perfectly with the above illustration. By so absconding to Kota Tinggi, it was obvious that the appellant had attempted to distance himself from the scene of the crime. Though that act would not suffice to convict him it would be relevant as it would be indicative of a guilty mind. In Adikanda Das v. State of Orissa [1988] Cri LJ 1884 Behera J had occasion to opine: The only other circumstance relied on by the prosecution was the fact of absconding of the appellant for some years. It is a settled principle of law that absconding my lend weight to the other evidence establishing the guilt of an accused, but, by itself, is hardly any evidence of guilt. The conduct of an accused making himself scarce for some period is relevant under s. 8 of the Evidence Act and may be indicative to some extent of a guilty mind, but it would not be conclusive evidence of his guilt." [43] In Uchenna Paul Nwokolo v Public Prosecutor [2015] MLJU 692 it was said at paragraph 24: In law, a deliberate lie committed by an accused person is corroborative of his guilt. We need only refer to the case of Tan Pin Seng v PP [1998] 1 SLR 418 where learned Yong Pung How CJ of Singapore had said: There are four criteria to satisfy before a lie can amount to corroboration: Khoo Kwoon Hain v Public Prosecutor [1995] 2 SLR 767. The lie must first of all be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realization of guilt and a fear of truth. Fourthly the statement must be clearly shown to be a lie by independent evidence. [44] Here, the lies were in relation to the Apartment being intended to be rented out to PW11, which had been dispelled by PW11 himself. As described by the HCJ this was "the obvious tell-tale sign of lie" (paragraph 125). [45] In Uchenna Paul Nwokolo it was also said at paragraph 18: [18] In Chan Pang Leon v PP [1956] 1 LNS 17 Justice Thomson J [as he then was] defined what essentially would in law constitute possession. Subsequent cases had built upon that definition and it is now trite that for there to be possession in the criminal sense, there must be present the elements of custody or control of the impugned thing and there need also be shown that there is the element of knowledge on the part of the accused person before possession can attach." [46] Chan Pean Leon v Public Prosecutor (1956) 22 MLJ 237 has stated what possession means at page 239: "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 shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. ..." [47] The HCJ had referred to Ghasem Hozouri Hassan v PP [2018] 6 CLJ 133 in particular at pages 146-147: [27] Based on the pronouncement of this court in Denis Mahadevan as reproduced above, possession need not to 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 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. 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. (emphasis added) [48] Hence, possession need not be exclusive. In this case, the accused had possession; he knew the nature of the drugs in room no 2 and 3 and also had custody and control of the drugs to the exclusion of others. [49] As to what constitutes knowledge, it has been made clear by this Court in Modjtaba Hosseinzadeh Majid v Public Prosecutor [2015] MLJU 502 at the following paragraphs: "[43] Knowledge that forms an integral part of possession can either be established through direct evidence or it can be reasonably inferred from the set of circumstances in a given case. Indeed in the case of Gunalan a/l Ramachandran & Ors v PP [2004] 4 MLJ 489, it was said at page 506 therein by the Court that "Knowledge is to be inferred from the facts and surrounding circumstances of a case." [44] In this case, we noted that the learned trial Judge had correctly addressed his mind on the issue of how knowledge of the impugned drugs was to be determined. His reference to the Federal Court case of PP v Abdul Rahman Akif [2007] 4 CLJ 337 was indeed appropriate. In that case, the apex Court had said: The law is clear well settled, Proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can be drawn varies from case to case. It would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused had the necessary knowledge... [45] It is therefore, to our mind, an area of the law which does not warrant much elucidation. So just by way of reiteration, in order for a person to be guilty of an offence premised on possession, it must be possession that is actuated by a guilty knowledge on the part of the accused person. And whether the accused person has guilty knowledge must relate to the attendant circumstances surrounding the whole case, and whether those circumstances justify a reasonable inference to be drawn therefrom, in the absence of an express admission on his part." [50] On this first issue, we find no merit in the submission that the evidence of PW5 aided the defence that there were others in the Apartment. On the contrary we find possession had been proved. The further submissions on no forensic evidence, knowledge per se not possession and to exclude access by others, were of no assistance to the defence. For instance, reference was made to Chan Wei Loon v PP [2021] MLJU 770 and Sathis a/l Mohanadran v PP [2022] MLJU 160 for the proposition that the prosecution must exclude access to others. [51] In Sathis it was said as follows: [39] In this regard, we are of the view that the learned trial judge failed to appreciate that the prosecution had to exclude Vicky to the drugs which according to SP4 were found in the living room and the kitchen. As such, to our mind, failure on the part of the trial judge to consider the foregoing unchallenged evidence amounted to a serious misdirection warranting appellate intervention." [52] We say those contentions do not help the accused where the prosecution had proved possession of the drugs and knowledge, custody and control. ii. Failure to offer Cynthia and section 114(g) of the Evidence Act 1950 ought to have been invoked [53] It was submitted that the law requires Cynthia to be offered to the defence and this was not done. Hence, the accused's right to a fair trial had been breached. This was because Cynthia would have confirmed the statement of the accused from the dock that PW8 was not present when they were arrested; that the police did not seize a bunch of keys from the accused; that room no 2 was unlocked and that the police forced opened the drawer in room no 3. [54] In Rosli Yusof v PP [2021] 7 CLJ 681 it was said at page 693: [46] Before parting, we consider it apposite to emphasise that a person's right to defend himself or herself against a criminal charge includes the right to obtain and adduce other evidence in support of his or her defence. It is desirable in the interest of justice for the defence to obtain the fullest possible access to the facts relevant to the issue in the case. In this regard, the prosecution has a duty to make available to the defence witnesses who had been investigated by the police and from whom the statements have been recorded. This is, as we alluded to earlier, an important or vital corollary or element of an accused's right to a fair trial." [55] Rosli Yusof has to be read in its context when in earlier passages in paragraphs 39 and 40 at page 691, it was stated as follows: "[39] On the factual matrix of the present appeal, the importance of these witnesses to the defence is clearly demonstrated from the evidence of the appellant, who averred that the said Kamarul Hisham was the actual person who has full control of the car in which the impugned drugs were found. The appellant testified that it was Kamarul Hisham who engaged in a discussion with the Thai national, Yeap Tan San. The investigating officer (SP8) herself confirmed that the impugned drugs originated from Thailand as can be seen from the rice gunny sacks in which the impugned drugs were found. ... [40] In our view, the objective of a fair trial requires the prosecutor to call the arrestees or at the very least Kamarul Hisham and the Thai national as witnesses unless there is some good reason not to do so. These witnesses are persons who have been arrested contemporaneous or in proximity to the arrest of the appellant and pursuant to the same investigation." [56] In our case, Cynthia was not the trafficker, with no evidence of possession on her part. With regard to the assertion that Cynthia would have supported the evidence of the accused in several aspects, the HCJ had considered them and did not believe the accused. So for instance, on whether PW8 was present during the arrest, the HCJ meticulously considered the evidence as detailed in paragraphs 50 to 60 of the judgment. She found PW8 present during the arrest where he arrived together with the police party which arrived at the Apartment round about the same time as the accused and Cynthia. [57] On room no 2 being unlocked, the HCJ found this was indeed so. In paragraph 130, this was reasoned to mean that if indeed there were tenants who kept drugs it would only be logical they would have locked their door securely: and the fact that the doors were unlocked showed the rooms could not have been rented out. [58] With regard to the seizing of keys from the accused, this was considered in paragraphs 130,131 and 171. Ultimately, it was found that because the evidence of the rooms being rented out was a fabrication, the assertion of the police only seizing the key to the top lock of the main door, had no leg to stand on. [59] We find that the right of the accused to a fair trial had not been prejudiced by the failure to offer Cynthia to the defence at the end of the prosecution case. [60] On whether section 114(g) of the Evidence Act ought to be invoked against the prosecution, it was submitted at the very least, Cynthia's statement ought to have served to the defence (Kobra Talha Siedali v PP [2014] 2 CLJ 12). Vinod Raj a/l Uthayakumar v PP Criminal Appeal N0 W-05(M)-250-05/2019) was cited for the proposition of an adverse inference to be drawn. In that case, it was held that the failure to call one Kesavan as a witness or to offer him to the defence would give rise to an adverse inference against the prosecution (paragraph 27) and earlier in paragraph 25 that without Kesavan's evidence "wujud kelompangan di dalam kes pihak pendakwaan dan inferens bertentangan di bawah perenggan 114(g) AK 1950 bolehlah dibangkitkan". [61] In this regard, we find that what is of importance is the sufficiency of the evidence and it is not in every case that the failure to call or offer a witness draws an adverse inference. In Siew Yoke Keong v PP [2013] 4 CLJ 149, this was said by the Federal Court at pages 186-186 as follows: [42] It is well settled that in a criminal case, the prosecution, provided that there is no wrong motive, has a discretion as to what witnesses should be called by it (see Khoon Chye Hin v. PP [1961] 1 LNS 41; [1961] MLJ 105, CA, Adel Muhammed El Dabbah v. Attorney General of Palestine [1944] AC 156, PP v. Dato' Seri Anwar Ibrahim (No.3) [1999] 2 CLJ 215; [1999] 2 MLJ 1). However, that prosecutorial discretion must be subject to the most basic limitation that it has to produce all the necessary evidence to prove the case against the accused beyond reasonable doubt (see. Abdullah Zawawi Omar v. PP [1985] 2 CLJ 2; [1985] CLJ (Rep) 19; [1985] 2 MLJ 16, at 19, (SC)). Thus, in Teoh Hoe Chye v. PP & Another Case [1987] 1 CLJ 471; [1987] CLJ (Rep) 386; [1987] 1 MLJ 220, Abdul Hamid C.J (Malaya) (as he then was) said at p. 388 (CLJ); 229 (MLJ); Nevertheless, the decision whether to call or not to call a witness including a witness from whom a statement has been taken is always the right of the prosecution (Abdullah Zawasi Omar v. Public Prosecutor). In so far as the trial Court is concerned, its duty is essentially to decide whether on the evidence before it the prosecution has proved its case, and if there are unsatisfactory features in the prosecution case to determine whether, in the light of such features, the prosecution case fell short of proof beyond reasonable doubt (Abdullah Zawawi Omar's case)." [43] In other words, in the end it is the sufficiency of the evidence that matters. In the present appeal, we find no such unsatisfactory features or gap in the prosecution's case. Indeed, as is clear in this judgement and for reasons which we have explained we are satisfied that the learned trial judge was right in holding that a prima facie case of trafficking in dangerous drugs had been made out against Siew." [62] The same was said in Ghasem Hozouri Hassan in paragraph 50, page 154 which reiterated Siew Yoke Keong. This was earlier stated in page 154: [48] The law pertaining to s.114(g) of the Evidence Act is settled. Under s.114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. The usage of the word 'may' gives the discretion to the court whether or not to invoke the adverse inference to a given set of facts. It is not a mandatory inference. To draw an adverse inference against the prosecution, the court must be satisfied that the witness that was not offered was a material witness, the prosecution purposely withholds evidence which it possessed and which was always available; and that what the prosecution did was done with an ulterior motive to frustrate the defence. (Nanda Kumar Kunyikanan & Anor v. PP [2011] 8 CLJ 406)." [63] Therefore, on the above two high authorities, what it boils down to is that Cynthia must be a material witness or necessary to the unfolding of the narrative and there must be deliberate withholding of the evidence to frustrate the defence. We do not find any such elements present here. We have set out earlier how those aspects of Cynthia's evidence which were said to assist the accused, were not so. We have earlier dealt with the sufficiency of evidence. [64] We find there was no deliberate withholding of the evidence. PW10 had stated that Cynthia was put under bond under section 118 of the Criminal Procedure Code before she was released (enclosure10/121, Q&A2117), had tried to trace Cynthia by telephone and her identity card address (Q&A 2119) and tried to contact the surety but the phone number was not contactable (Q&A 2123). [65] The failure to furnish a copy of Cynthia's statement to the defence has to be considered in the light of the evidence of the prosecution on possession which was not rebutted by the accused. We find this does not render the prosecution's case fatal. [66] Under the circumstances, we find no merit to the issue pertaining to Cynthia. iii. Failure to indicate to the accused whether defence was called on presumed trafficking or direct trafficking [67] It was submitted that the HCJ did not indicate to the accused at the end of the prosecution's case whether defence was called for direct trafficking or presumed trafficking. This may be seen at enclosure 11/134. It records "I am satisfied that the prosecution has made out a prima facie case against the accused of all the four charges preferred against him and I therefore call upon the Accused to enter the defence". [68] We were referred to Caniete Robelyn Mastelero (Federal Court Criminal Appeal No:05(M)-240-10/2018(B) and Rozman bin Ibrahim v PP (Federal Court Criminal Appeal No:05(M)-205-09/2019(B) where the Federal Court set aside the trafficking conviction on the ground of such non-intimation. [69] Be that as it may, we now however have the latest high authority in Sathya Velloo v PP [2022] 5 CLJ 659 where the Federal Court stated at pages 681-682 as follows: "[57] There is no requirement in s.180 of the CPC that when calling for the accused to enter on his defence, the trial judge must inform him verbally or in writing of the reason or reasons why he is calling for him to enter on his defence. What is required is for the trial judge to be satisfied that the prosecution has adduced credible evidence to prove each ingredient of the offence charged. There is no other requirement and the law reports are replete with authorities on what constitutes "prima facie case". [58] In fact the trial judge is not even required to provide any reason for calling for the defence. The authority for this proposition is the decision of this court in Junaidi Abdullah v. PP [1993] 4 CLJ 201; [1993] 3 MLJ 217. This is what the court said through Mohamed Azmi SCJ at p. 206 (CLJ); p. 223 after referring to Ong CJ's observations in Yap Chai Chai & Anor v. PP [1973] 1 LNS 177; [1973] 1 MLJ 219: In our opinion, there is also no statutory provision requiring a judge sitting alone to expressly record his reason before calling the accused to enter his defence or to state his findings on the credibility of main prosecution witnesses. But, as a matter of practice, where there is a particular reason for doing so, such as where a submission to answer has been made in a complex case, or where the accused is called to answer a defence on a lesser or alternative charge, judges do sometimes give their reasons. In uncomplicated cases, such as in the instant appeal, it is not obligatory or even necessary to do so. By calling an accused to enter his defence, it should be assumed that the trial judge must on evaluation of the evidence, have been satisfied that the prosecution had, at that stage of the trial, established a prima facie case which, if unrebutted, would warrant a conviction of the accused. To arrive at such a conclusion, it is inherent that the judge must consider all the evidence adduced by the prosecution as tested in cross-examination, on a prima facie basis. In this appeal, the establishment of a prima facie case of unlawful possession of a firearm under s. 57 of the Internal Security Act was so obvious, even to the defence counsel, that it became academic and unnecessary for the court to consider an order of acquittal under s. 180 of the Code." [70] We are bound by Sathya Vello which stands for the proposition that the failure of the HCJ to state whether it is actual or deemed possession is not fatal as the trial judge is not under a duty to provide any reason for calling defence. All that is required is for the trial judge to be satisfied there is a prima facie case which was the case here. [71] We therefore find no merit on the issue of non-intimation. Unsworn statement of the accused [72] We note that the accused gave an unsworn statement. The HCJ referred to the Federal Court in Dato' Seri Anwar Ibrahim v PP & Anor Appeal [2015] 2 CLJ 145 had this to say on the weight to be given to what is said in an unsworn statement: "In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross-examination by the prosecution nor can he be questioned by the trial judge. While it is true that it is within the appellant's right to give a statement from the dock, the statement must however amount to a credible defence. A mere denial does not amount to a credible defence." [73] The HCJ had considered the defence in paragraphs 151 to 175 and found it to be a bare denial and an afterthought. We find no good reason to depart from that. Our decision [74] We therefore find the prosecution has proven the trafficking charges (the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ charges), the $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ charges. The appeal against conviction is dismissed. APPEAL 571 [75] We deal now with the prosecution's appeal against sentence on the trafficking charges and also that part of the accused's appeal on sentence. [76] The submission of the accused was essentially that if the appeal on conviction is dismissed, the sentence ought to be maintained. [77] The prosecution seeks that the sentence be set aside and substituted with the sentence of death. The thrust of its submission was that the conditions of section 39B(2A) DDA 1952 under which the sentence was imposed had not been complied with. The aforesaid provision provides as follows: "(2A) In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances: