Public Prosecutor v Nurddin Bin Sahibuddin (S-05(LB)-610-12/2018)

The respondent was charged for trafficking in dangerous drugs. The amended charge reads: “That you, on the 2nd day of December, at about 6.10 p.m., in a vehicle with registration number SAB 9169 Y, parked in front of Restaurant Sempelang, Sinsuran, in the District of Kota Kinabalu, in the State of Sabah, did on your own behalf traffic in a dangerous drug to wit 55.85 grammes of Methamphetamine and that you have thereby committed on offence under section 39B(1)(a) of the Dangerous Drugs Act, 1952 (Act 234) and punishable under section 39B(2) of the same Act.”

At the conclusion of the trial the learned High Court Judge (‘learned trial judge’) acquitted the respondent. Aggrieved with the acquittal, the prosecution appealed to this Court. We heard the appeal on 25.11.2019, wherein at its conclusion we unanimously dismissed the appeal. This is our grounds for the dismissal. The Prosecution’s Case [3] On 2.12.2016 at about 6.10 p.m., the respondent was walking alone towards a vehicle bearing registration No. SAB 9169 Y (‘the car’) parked in front of Restaurant Sempelang, when he was stopped by Inspector Zulfadli Bin Abd Rashid (PW1) together with his raiding team. In response, the respondent was alleged to have acted aggressively and tried to run away but was managed to be apprehended.

PW1 read the caution under section 37B(1)(b) of the Dangerous Drugs Act 1952 (‘the Act’) to the respondent and asked him whether he Criminal Appeal No: S-05(LB)-610-12/2018 3 keeps or hides any incriminating item. The respondent kept silent and PW1 proceeded to physically examine his body and found in the right-side pocket of his trousers a vehicle key attached to a key chain written ‘Nuldin’. Using the said key, PW1 unlocked the said car successfully.

From the search inside the car witnessed by the respondent, PW1 recovered under the driver’s seat a black plastic bag (P8). Inside P8, there were 2 plastic packets (P19 and P20) each containing crystalline substance suspected to the dangerous drugs.

The respondent was arrested and taken back to the police station together with the seized exhibits recovered from inside the car. Later, the respondent and the seized exhibits were handed over by PW1 to the Investigating Officer, Inspector Mohamad Anis Bin Abdullah (PW4) for further action.

Upon analysis, the Chemist, Nurul Idayu Bte Zaihari (PW2) confirmed the crystalline substances in P19 and P20 contained 55.85 grammes of Methamphetamine which formed the subject matter of the amended charge against the respondent.

Investigation carried out by PW4 revealed that the car was registered under the name of Nelma Bte Muhd Rauf and it was lent to the respondent one month prior to his arrest. Findings by the learned trial judge at the end of prosecution’s case [9] At the end of the prosecution’s case, the learned trial judge found that the respondent had custody and control of the impugned drugs recovered Criminal Appeal No: S-05(LB)-610-12/2018 4 by PW1 inside the car due to the fact that the key to the said car was found in the trousers pocket, worn by the respondent. Learned trial judge accepted the evidence of PW4 that the car was lent to the respondent one month before his arrest. The learned trial judge had admitted as evidence statement recorded from Nelma Bte Mohd Rauf (P27) under section 32(1)(i) of the Evidence Act 1950.

The learned trial judge then drew an inference that the respondent had mens rea possession of the impugned drugs inside the car for reasons being that he had the sole custody and control of the car and the seized drugs inside the car. Learned trial judge inferred that the respondent had knowledge of the drugs based on the conduct of the respondent in trying to run away after he was stopped by the police. The learned trial judge, as well, invoked the statutory presumption of possession and knowledge under section 37(d) of the Act against the respondent.

As for the element of trafficking, the learned trial judge invoked the statutory presumption under section 37(da)(xvi) of the Act due to the weight of the impugned drugs which exceeded the statutory limit to trigger the invocation of the said statutory presumption.

After being satisfied on maximum evaluation that all the elements of the charge had been established, the learned trial judge held that the prosecution had proven a prima facie case against the respondent. Thus, the respondent was ordered to enter his defence. Criminal Appeal No: S-05(LB)-610-12/2018 5 The Defence Case [13] The respondent elected to give sworn evidence and called another witness for his defence. They prepared written statements marked as WSDW1 and WSDW2. The defence also tendered 2 sketch plans (D1 and D2) of the location of the crime scene area.

In a nutshell, the respondent’s defence was that he was stopped and arrested by the police team at a different location and not in front of Restaurant Sempelang, Sinsuran as alleged by PW1. Once arrested, only then he was taken to Restaurant Sempelang to where the car was parked.

In his sworn statement, the respondent (DW1) stated that he is a Filipino national who possesses IMM 13 document which allows him to reside in Sabah. He is a businessman managing a restaurant, a billiard saloon and a pearl stall at Sinsuran Shopping Lot, Kota Kinabalu.

The respondent further disclosed that on the day of the incident, he drove the car with his brother-in-law, Mohammad Shah Bin Amin @ Mispa as passenger. He drove the car which he rented to go to work at the billiard saloon. On the way, he stopped by at his father’s graveyard. He got off the car and Mispa drove the car away. Mispa only came back later at 12.40 p.m. to fetch him at the cemetery. He took the wheel again and they proceeded to Restaurant Sempelang at Block D opposite his billiard saloon which was at Block B as shown in the sketch plan Ex. D1.

On reaching their destination, he parked the car behind Klinik Lau & Chong. While they were still inside the car, he saw Mispa holding a black plastic bag which is lined up inside with a blue plastic bag. He queried Criminal Appeal No: S-05(LB)-610-12/2018 6 about it and Mispa responded that it was Mispa’s child’s clothes. They alighted from the car with Mispa carrying the said black plastic bag and proceeded their separate ways.

At about 1.40 p.m., he went inside his billiard saloon and played snooker with his customers. Among them was one Corporal Zulkifli from Kota Kinabalu Police Station. At about 2.30 p.m., Mispa came inside the billiard saloon and requested to borrow the car. He handed over the key to Mispa and he left the billiard saloon. The respondent remained in the saloon and continued playing snooker. After a while, Mispa came back and handed over the said car key to him. About 40 minutes later, his father-in-law, Kansar Bin Ali @ Manan came to the billiard saloon and told him that Mispa wanted to borrow the car again. Manan then took the key from him.

At about 6.00 p.m., Manan came to the billiard saloon and returned the key to him. At about the same time, he noticed the presence of Corporal Amir and Sergeant Mapatoba in his billiard saloon. They suddenly seized his hands, pushed him to the wall and conducted physical inspection on him. He was handcuffed and steered outside through the back door of the billiard saloon where he saw a Perodua Alza car parked by the curb side. He was thrust and seated inside the Perodua Alza car guarded by the two policemen.

He was quizzed by the two policemen as to the where about of Mispa and the car. Dissatisfied with his answer, they then drove around for about ten minutes in search of Mispa and the car. When they failed to locate Mispa, they returned to the billiard saloon. There, he inquired from Manan as to where was the car and Manan informed him that the car was parked Criminal Appeal No: S-05(LB)-610-12/2018 7 in front of Restaurant Sempelang. The two policemen then took him again into the Perodua Alza car and they went to Restaurant Sempelang.

Upon reaching there, the two policemen ushered him to where the car was doubled parked. Sergeant Mapatoba asked him as to why the window glass was rolled down and he replied: “mana saya tahu, bukan saya yang pakai.” He also noticed that both the left front and back window glasses was also rolled down by about six inches.

Sergeant Mapatoba subsequently took the key from his right side trousers pocket and then used the remote control to unlock the doors but it did not work. Sergeant Mapatoba then opened all the four doors manually using the key and directed him to push up the window glass but only upon starting the engine was it successfully done.

Sergeant Mapatoba, Corporal Amir and another policeman did a thorough check and inspection inside the car but they did not find anything incriminating. Not long after that, another police personnel known to him as ‘Singh @ Ben’ arrived and instructed them to “Periksa satu kali lagi”. Sergeant Mapatoba and Corporal Amir resumed their inspection and suddenly Sergeant Mapatoba extracted and showed to him a plastic bag in his hand. He denied any knowledge about the presence of the said plastic bag.

At about the same time and in the nearby surrounding area, a different police party had detained Mispa while he was driving an Almera car with his friend. There were altogether three of them arrested on that day and brought to Balai Polis Karamunsing. The respondent stated further Criminal Appeal No: S-05(LB)-610-12/2018 8 that when he parked the car behind Klinik Lau & Chong at about 1.20 p.m. on that day, that was the last time he was in custody or control of the car. He was not the one who moved and parked the car in front of Restaurant Sempelang. At all the material time he was inside the billiard saloon playing snooker with his friends, and one of them was DW2, Emdan Bin Hatail.

The evidence of DW2 corroborated most of the material part of the respondent’s testimonies. DW2 is a Malaysian aged 43 years old. He stayed at Kampung Likas, Kota Kinabalu and he worked as a public bus driver around the area of Kota Kinabalu. DW2 declared that he was a good friend of the respondent. On the day of the incident at around 3.30 p.m. until 6.00 p.m. he was sitting on a long bench inside the respondent’s billiard saloon watching the snooker players and going-ons inside the billiard saloon. Findings of the learned trial judge at the end of defence case [26] At the conclusion of the trial, the learned trial judge found that the defence evidence had raised a reasonable doubt on the prosecution’s case. Learned trial judge found that the defence of the respondent had successfully rebutted the statutory presumption under section 37(d) of the Act. The respondent was thus acquitted and discharged, hence this appeal. The Appeal [27] The Petition of Appeal filed by the prosecution contains the following five grounds of appeal: Criminal Appeal No: S-05(LB)-610-12/2018 9 “1. Her Ladyship, the Learned High Court Judge erred in law when finding that the prosecution has failed to prove a case beyond reasonable doubt against the Respondent whereas there are overwhelming evidence to convict the Respondent for an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952;

Her Ladyship, the Learned High Court Judge erred in law when her Ladyship ruled that DW2 to be truthful witness and his evidence in consequence raised reasonable doubt to the Prosecution’s case against the Respondent;

Her Ladyship, the Learned High Court Judge erred in law when her Ladyship had put too much emphasize on exclusive possession when it was crystal clear that it was unchallenged evidence of the vehicle key found in the pocket of the trouser wore by the Respondent coupled with his aggressive reaction with the attempt to run away, read together with Exhibit P27 that the Respondent borrowed the vehicle from the owner a month before the arrest are sufficient to prove that the Respondent was in possession of the drugs found in the vehicle. P27 also show that the owner did not have access to the vehicle after the Respondent borrowed it although the owner still kept the duplicate key;

Her Ladyship, the Learned High Court Judge erred in law when her Ladyship failed to consider that the defence put forward by the Respondent was an afterthought when, for instance, the active role played by Sergeant Mapatoba in the search of the Criminal Appeal No: S-05(LB)-610-12/2018 10 vehicle was never put to any of the Prosecution witnesses but only disclosed during the defence case. It is a trite law that failure to cross examine on this point amounts to acceptance of the evidence adduced by the prosecution that it was PW1 who searched the car and found P8 under the driver’s seat; and

Her Ladyship, the Learned High Court Judge erred in law when her Ladyship denied the attempt from the Prosecution to adduce rebuttal evidence after the defence closed its case by calling Sergeant Mapatoba and the non-direction by her Ladyship on the issue in the judgment amount to misdirection.” [28] Before us, the learned Deputy Public Prosecutor (‘learned Deputy’) however canvassed only the following two grounds of appeals:

That the respondent’s defence was an afterthought and bare-denial defence; and

That the prosecution had proven all elements of the charge against the respondent. [29] On the two grounds, the learned Deputy prays that the order of an acquittal by the learned trial judge be set aside and the respondent be found guilty and convicted on the charge as proffered.

Afterthought and bare-denial defence Criminal Appeal No: S-05(LB)-610-12/2018 11 [30] It was submitted by the learned Deputy that the respondent’s defence that his car was used by Mispa and the key was given to Manan, and that the impugned drugs were actually recovered by Sergeant Mapatoba was never raised during the prosecution case. What was being put to PW1 and PW3 was that the respondent was being arrested at his billiard saloon. [31] Relying on Siew Yoke Keong v. PP [2013] 3 MLJ 630 and Megat Halim Megat Omar v. PP [2009] 1 CLJ 154, learned Deputy submitted that the failure by the respondent to raise a material fact during the prosecution’s stage had amounted to an afterthought defence. [32] Learned Deputy further argued that the respondent in his defence totally denied that he had knowledge at all about the impugned drugs. It was submitted that the respondent’s defence was a bare-denial defence. A bare denial defence is not a good defence unless there is a plausible grounds by the respondent. Such a defence should not exonerate the respondent and should not be accepted by the learned trial judge. Learned Deputy relied on D.A. Duncan v. PP [1980] 2 MLJ 195 and Rosenizam bin Maharam v. PP [2003] 5 MLJ 49 to support her submission. [33] Learned Deputy further complained that the existence of Mispa and Manan and their respective roles in the defence case was never told by the respondent to the Investigating Officer, PW4 to do the necessary investigation to verify the respondent’s version whether it was true or false. Learned Deputy submitted that learned trial judge erred when her Ladyship accepted the respondent’s defence. Learned Deputy relied on Alcontara Criminal Appeal No: S-05(LB)-610-12/2018 12 a/l Ambross Anthony v. PP [1996] 1 CLJ 705, Jorge Crespo Gomez v. PP [2018] 1 LNS 970, and Aedy Osman v. PP [2011] 1 CLJ 273. [34] However, learned counsel for the respondent submitted that the respondent’s version was put to the raiding officers, i.e., PW1 and PW3. After perusing the appeal records, we agreed with the learned defence counsel’s submission. These can be seen at pages 25 to 26, Appeal Record Volume 2, Cross-examination of PW1: “Q: Rujuk statement paragraph 6 line 3 dan 4: “saya mendapati satu lelaki suspek menuju ke arah kenderaan tersebut dalam keadaan mencurigakan. Tiada orang lain bersama lelaki tersebut.” Saya mengatakan kamu cuba mereka-reka tentang lokasi sebenar OKT ditahan? Tidak setuju.” Saya mengatakan OKT bukan berjalan menuju ke kenderaan SAB9196Y yang terletak di luar restoran Sri Sempelang semasa OKT ditahan? Tidak setuju. Saya mengatakan kamu dan pasukan serbu, kamu menjumpai OKT bermain billiard di kedai billiard di tengah-tengah Blok B Sinsuran? Tidak setuju. Saya juga mengatakan pasukan serbu kamu menahan OKT di kedai billiard dan terus memeriksa badannya di situ? Tidak setuju. Criminal Appeal No: S-05(LB)-610-12/2018 13 Selepas itu pasukan serbu terus membawa OKT ke dalam satu kereta yang digunakan dalam operasi yang menunggu di jalan belakang kedai billiard berkenaan? Tidak setuju. Saya mengatakan pasukan serbuan kamu terus membawa OKT dalam kereta Alza untuk mengelilingi blok kedai Sinsuran? Tidak setuju. Saya mengatakan selepas mengelilingi kedai Sinsuran dua pusingan kereta yang membawa OKT berhenti di depan Sri Sempelang? Tidak setuju.” [35] In respect of PW3, here are those suggestions at pages 68 and 76 of the Appeal Record, Volume 2: “Q: Rujuk Para 5 line 4-5. “Saya melihat 1 lelaki suspek menuju ke arah kenderaan tersebut dalam keadaan mencurigakan.” Saya mengatakan kamu cuba mereka-reka tentang lokasi sebenar OKT ditahan? Tidak setuju. Saya mengatakan OKT bukan berjalan menuju ke kenderaan SAB9169Y yang terletak di luar Restoran Sri Sempelang semasa OKT ditahan? Tidak setuju. Criminal Appeal No: S-05(LB)-610-12/2018 14 Saya mengatakan kamu dan Pasukan Serbu kamu menjumpai OKT bermain billiard di kedai billiard di tengah-tengah Blok B Sinsuran? Tidak setuju Saya juga mengatakan kamu menahan OKT di kedai billiard dan terus memeriksa badannya di situ? Tidak setuju. Saya mengatakan OKT ditangkap di kedai billiard di blok B Sinsuran oleh 3 anggota pasukan serbuan kamu dan dibawa dengan sebuah Perodua Alza daripada belakang kedai billiard Blok B Sinsuran ke restoran Seri Sempelang. Tidak setuju.” [36] From the above, we tend to agree with the learned defence counsel’s submission that it was not true that the defence was not put to the relevant prosecution’s witnesses. It is trite law that even if the defence was not put, it does not relieve the prosecution of its duty to establish the charge against the respondent beyond reasonable doubt and that the trial judge must consider the respondent’s defence [Alcontara a/l Ambross Anthony (supra)]. [37] On the same issue, we also agreed with the learned defence counsel’s submission that Sergeant Mapatoba should be call as a witness for the prosecution as this police personnel was the one who arrested the respondent in the billiard saloon and together with Corporal Amir took the respondent to the car in an Alza car before the impugned drugs were recovered in the rented car which was parked in front of Restaurant Criminal Appeal No: S-05(LB)-610-12/2018 15 Sempelang. Failure to call Sergeant Mapatoba to the witness stand instead of just offering the witness to the defence was not sufficient to cover the gap in the prosecution’s case. In our view, Sergeant Mapatoba was an important witness whose evidence form part of the narrative of the prosecution’s case. Therefore, we find no merit in the first ground of appeal.

The charge had proven against the respondent [38] On this ground of appeal, learned Deputy submitted that there was no reasonable doubt created by the respondent, and that the learned trial judge erred when she decided that there was reasonable doubt at the end of the defence case. The learned Deputy’s submission was premised on two grounds, that is, (i) there is no reasons for PW1 and PW3 to trap the respondent and that their evidence should be believed by the learned trial judge based on PP v. Mohamed Ali [1962] MLJ 257 and Mirza Murtala v. PP [2010] 5 MLJ 616, and (ii) that Sergeant Mapatoba is not a material witness and section 114(g) Evidence Act 1950 is inapplicable as was decided in Siew Yoke Keong v. PP [2013] 3 MLJ 630. [39] Learned Deputy concluded that the learned trial judge had committed an appealable error in acquitting the respondent which warrant an appellate intervention and quoted at great length the decision of the Federal Court in Ghasem Hozouri Hassan v. PP [2018] MLJU 601, as follows: “[62] Guided by the dicta of then Supreme Court in Mohamed Radhi, it is clear to us that unless the evidence in a particular case does not obviously so warrant, it is incumbent for the court to consider whether on a balance of probability on the evidence the defence has rebutted the statutory presumption of trafficking under section 37(da) of the DDA as a Criminal Appeal No: S-05(LB)-610-12/2018 16 separate exercise even though the court is satisfied on a balance that the presumption of possession under section 37(d) of the DDA has not been rebutted. This is basically the gist of what the then Supreme Court had meant when it was referring to a separate exercise. In the final analysis, the Supreme Court held that the failure to do so on the part of the trial judge was a material misdirection and was fatal to the conviction. The dicta, postulated in Mohamed Radhi, which is now known as the Radhi direction is sort of a direction the trial judge administers unto himself when the accused person invokes the defence which demonstrates the presence of another person at the scene of the crime who is the trafficker as opposed to the accused person who is entirely innocent. Based on the said direction it is incumbent on the learned trial judge at the end of the defence case, to examine whether even though the Court is not satisfied with the defence story, to ask whether in spite of this, whether the defence story casts a reasonable doubt on the prosecution case. This principle is concomitant to the principle laid down in Mat v PP [1963] MLJ 263. [63] At a glance, it appears that the Radhi direction is not entirely difficult to comprehend and poses no problem of interpretation. In practice, however, we find, with respect, it has been misinterpreted and misapplied by our courts. Judicial opinion emanating from the two Court of Appeal cases on Radhi direction seem to suggest that the separate exercise postulated in Mohamad Radhi means first to determine as a fact whether that the other person is a real person or a mere figment of the accused’s imagination invented for the purpose of the trial. If, the trial judge finds that other person to be real the judge must then determine whether that other person is the real trafficker. In Sochima Okoye v Public Prosecutor [1995] 3 CLJ 371, Gopal Sri Ram JCA (as he then was) in referring to Mohamad Radhi and coining the direction as ‘the Radhi direction’ stated that: We agree with Encik Karpal Singh that the judgment when, read as a whole reveals no separate exercise as that postulated by the Criminal Appeal No: S-05(LB)-610-12/2018 17 decision in Radhi. We also agree with his submission that the use of the plural expression “presumptions” by the learned Judge in the passage we have reproduced a moment ago does not amount to a sufficient compliance of what we will call “the Radhi direction”. The learned Judge, having found the appellant’s story about the existence of James Smith to be true, ought to have addressed his judicial mind to the further question as to whether there was any reasonable doubt raised that Smith was the real trafficker. Had he done so he may well have held that he was not, in which event our task would have been made that much easier. Unfortunately he did not and it is our view that the failure by the learned Judge to administer into himself the Radhi direction renders his ultimate conclusion fatally flawed. In our judgment, the failure of a Judge to properly direct himself or in misdirecting himself is to be treated on the same footing as a non-direction or a misdirectin by a Judge to a jury. Rameshwar v. State of Rajasthan AIR 1952 SC 54, Tan Yook Suan v. R [1954] MLJ 116 and Gooi Loo Seng v. PP [1993] 3 CLJ 1: [1993] 2 MLJ 137 are decisions that are authority for this proposition. And in the last mentioned case Edgar Joseph Jr. SCJ (now FCJ) stated the principle in the following words: Clearly, therefore, the trial Judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that non-direction, amounts to a misdirection, for in the words of Pickford J in R v. Bundy … the trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence. Criminal Appeal No: S-05(LB)-610-12/2018 18 We must treat the failure of a trial Judge sitting alone, to direct himself correctly in the same way a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred. Before us, the learned Deputy fairly, and quite properly, conceded that the learned Judge was duty bound, in the light of his earlier finding, to administer unto himself the Radhi direction. In these circumstances, we had no alternative but to intervene and make the order we have set out in the opening paragraph of this judgment. [64] In another case, Yee Wen Chin v. PP [2008] 2 MLRA 382, Gopal Sri Ram JCA (as he then was) again in referring to the Court of Appeal’s earlier decision in Sochima Okeye, reiterated that: [12]……. In the course of cross-examining the prosecution witnesses it was extracted from PW5 that the information he had received was that Woo Kok Meng was trafficking in drugs at the place in question. The defence quite properly took advantage of this fact to demonstrate that Woo was the real trafficker and that the accused was entirely innocent. The accused was clearly entitled to do this in view of the decision in Mohamad Radhi Yaakob v. PP [1991] 1 MLRA 158; [1991] 3 MLJ 169; [1991] 1 CLJ (Rep) 311 SC. That case is authority for the proposition that a person charged with trafficking is entitled to an acquittal on that charge by showing that he was a mere possessor of the drugs whilst another was the true trafficker. Whenever such a defence is taken two separate exercises must be carried out by the trial judge. He must first determine as a fact whether that other is a real person or a mere figment of the accused’s imagination invented for the purpose of the trial. Next, if he finds that other person to be real the judge must then determine whether that other person is the real trafficker. This is called the Radhi direction and must be administered by a court unto itself when such a defence Criminal Appeal No: S-05(LB)-610-12/2018 19 is taken. See, Sochima Okoye v. PP [1995] 1 MLRA 457; [1995] 1 MLJ 538; [1995] 3 CLJ 371 CA; [1995] 2 AMR 1069.” [40] Learned counsel for the respondent raised another issue which merits our consideration as to whether the respondent could safely be convicted on the charge. In the present appeal, the learned trial judge invoked the presumption of possession under section 37(d) and at the same time she invoked the presumption of trafficking under section 37(da)(xvi) of the Act. Even though learned Deputy argued that there was no such double presumptions invoked by the learned trial judge, but, after perusing the learned trial judge’s grounds, we agreed with the learned counsel submission. [41] It was clear from the learned trial judge’s grounds that she did invoked double presumptions. These could be seen from the various part of learned trial judge grounds which we produce as follows: “To prove either of these two requirements, the prosecution may either adduce direct evidence or it may rely on the relevant presumptions under s.37 of the DDA……. Coming back to this instant case, the prosecution relied on the presumption of s.37(d) of the DDA 1952 to establish “possession” through the testimonies of the prosecution’s witness PW1….. The second presumption which the prosecution relied upon was the presumption of trafficking under section 37(da) of the DDA. Since the amount of the drugs alleged to be in the possession of the Accused i.e.

55.85 grams exceeded the statutory limit set in section 37(da)(xvi) DDA, it triggered the invocation of the presumption of trafficking provided under section 37(da) DDA……… Criminal Appeal No: S-05(LB)-610-12/2018 20 The new section 37A DDA clearly allows the prosecution to rely on double presumptions……. This Court also consider whether there was any rebuttal to the double presumptions invoked and whether there was any reasonable doubt raised…….. The Court finds that the defence failed to rebut the presumption under section 37(d) DDA and to raise any reasonable doubt to the prosecution’s case.” [42] Finally, at the end of the trial, the learned trial judge concluded that: “I found that the defence evidence had raised a reasonable doubt on the issue of exclusivity of possession by the Accused – Parlan Dadeh v. PP [2009] 1 CLJ 717 and was successful in rebutting the presumption in section 37(d) of the DDA. Possession is the all-important ingredient. It is the gravamen in the charge of trafficking which must be established before one can be said to be trafficking.” [43] The invocation of presumption upon presumption under section 37A of the Act had been declared unconstitutional by the Federal Court in Alma Nudo Atenza v. PP & Another Appeal [2019] 5 CLJ 780. The apex Court decided at page 833: “[148] Section 37A was legislated to facilitate the invocation of the two presumptions yet there was no amendment to sub-s. 37(da). As such and as discussed earlier on in this judgment, to invoke a presumption of trafficking founded not on proof of possession (which currently the subsection demands) but on presumed possession based on proof of mere custody and control, would constitute a grave departure from the Criminal Appeal No: S-05(LB)-610-12/2018 21 general rule that the prosecution is required to prove the guilt of an accused beyond a reasonable doubt. [149] Further, the application of what may be termed the “double presumptions” under the two subsections gives rise to a real risk that an accused may be convicted of drug trafficking in circumstances where a significant reasonable doubt remains as to the main elements of the offence. In such circumstance, it cannot be said that the responsibility remains primarily on the prosecution to prove the guilt of the accused beyond a reasonable doubt. [150] Based on the factors above – the essential ingredients of the offence, the imposition of a legal burden, the standard of proof required in rebuttal, and the cumulative effect of the two presumptions – we consider that s. 37A constitutes a most substantial departure from the general rule, which cannot be justified and disproportionate to the legislative objective it serves. It is far from clear that the objective cannot be achieved through other means less damaging to the accused’s fundamental right under art.

In light of the seriousness of the offence and the punishment it entails, we find that the unacceptably severe incursion into the right of the accused under art. 51(1) is disproportionate to the aim of curbing crime, hence fails to satisfy the requirement of proportionality housed under art. 8(1). [151] Accordingly, we hold that s. 37A is unconstitutional for violating art. 5(1) read with art. 8(1) of the FC. The impugned section is hereby struck down.” [44] We are of the view that based on the above reasons, the conviction of the respondent will not be safe based on two grounds, i.e. that Mispa and/or Manan could be the real trafficker(s) and on the invocation of double presumption by the learned trial judge. We hold the view that based on the Criminal Appeal No: S-05(LB)-610-12/2018 22 strength of the respondent’s evidence, Mispa and/or Manan were real person and they were the real traffickers. [45] Another issue raised by learned counsel for the respondent was on the credibility of DW2. Learned Deputy had submitted that learned trial judge erred in relying on the evidence of DW2 in acquitting the respondent. The learned trial judge accepted the evidence of DW2 as truthful witness and had corroborated the evidence of the respondent. Due to this, the learned trial judge reasoned that the defence had rebutted the presumption of possession on balance of probabilities and had created a reasonable doubt on the prosecution’s case. The finding by the learned trial judge was based on the evidence and credibility of witnesses. It is trite that such a finding must not be disturbed without any good and cogent reason. The learned trial judge in our view had examined the evidence of DW2 and had applied the correct judicially accepted test before accepting his evidence. In this regard, the learned trial judge said at page 30 of the Appeal Record Volume 1: “I consider DW2 to be a truthful witness. He stood firm to his testimonies in court. He did not hesitate; instead he responded to the cross-examination questions posed to him as a matter of fact. DW2’s evidence corroborated DW1’s testimony and in consequence raised reasonable doubt as to the credibility of prosecution evidence in totality in particular as to the element of possession – whether DW1 had actual custody or control of the said Vehicle…..” [46] Likewise, we find no merit in the second ground of appeal posited by the learned Deputy before us. Criminal Appeal No: S-05(LB)-610-12/2018 23 Conclusion [47] For all the reasons above stated, we find no merits in the prosecution’s appeal and no appealable error committed by the learned trial judge which warranted an appellate intervention. The appeal is dismissed. Decision of the High Court was affirmed. Dated: 31 December 2019. signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia For the Appellant: Tengku Intan Suraya bte Tengku Ismail Deputy Public Prosecutor Attorney General’s Chambers Putrajaya For the Respondent: Hamid Ismail Messrs. Hamid & Co Unit 2-2, 2nd Floor, Block D