Ranjith Singh A/l Mahindar Singh v Pendakwa Raya (K-05(SH)-427-09/2024)

(A) INTRODUCTION [1] The appellant (Ranjit Singh a/l Mahindar Singh) was charged with an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (the DDA), punishable under section 39B (2) of the Act. The 35 charge is as follows: “Bahawa kamu pada 10 Februari 2021, jam lebih kurang 12.05 tengah malam, berhampiran sebuah rumah di alamat No. 28, Jalan Market, Gurun, di dalam daerah Kuala Muda, di dalam negeri Kedah Darul 40 Aman telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 224.8 gram. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama.” 45 [2] The appellant had claimed trial, and at its conclusion, the learned High Court Judge (HCJ) found the appellant guilty, convicted him, and sentenced him to 30 years of imprisonment from the date of arrest (10.02.2021). Aggrieved by the HCJ's decision, the appellant 50 filed this appeal against his conviction and sentence. [3] We heard the appeal on 15.10.2025 and unanimously dismissed it. Our reasons are as follows: 55

(B) THE SALIENT FACTS

The Prosecution’s Case [4] The salient facts of the case had been meticulously set out by the HCJ in her grounds of judgment, and we have, by and large, jointly adopted her findings of fact in the said grounds with necessary 60 modifications. The foundation of the prosecution’s case against the appellant is as follows:

4.1 The prosecution called six witnesses:

Inspector Mohd Fariz bin Nawi (SP5) received intelligence about suspected drug trafficking on the night of 09.02.2021.

After a briefing, SP5 and his team went to a house at No. 70 28, Jalan Market, Gurun, arriving just after midnight on 10.02.2021.

SP5 observed the appellant leaving the house carrying a bundle of jackets. The police approached, identified 75 themselves, and searched the appellant.

They found a plastic container with two packets containing suspected methamphetamine (later determined to be 224.8 grams of Methamphetamine) in the bundle of 80 jackets.

The appellant was arrested, informed of the reason, and a search list for the seized items (exhibit P22) was issued. 85 4.2 The appellant and the seized items were taken to the police station, where a report was filed and the items labelled. The appellant and the items were then handed over to the Investigating Officer, Inspector Surita Binti Annual (SP6), along with the handing-over form (exhibit P24).

3 The next day, SP6 sent the seized drugs to the Chemistry Department. The chemist, Puan Haslinda binti Ismail (SP4), confirmed the substance was methamphetamine, a dangerous drug under the DDA, and detailed her findings in a chemist's 95 report (exhibit P18). Findings Of the Trial Judge at the End of the Prosecution’s Case [5] A perusal of the learned HCJ’s grounds revealed that:

1 The learned HCJ had, at the conclusion of the prosecution case, clearly outlined the duty of the court at the close of the prosecution case. The learned HCJ said: “11. In order to determine whether or not a prima facie case has 105 been established the court is required to undertake a maximum evaluation of the prosecution evidence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence.

If the court upon a maximum evaluation of the evidence placed before it at the close of the prosecution's case comes to the conclusion that a prima facie case has not been made out, it should acquit the accused. If, on the other hand, the court after 115 conducting a maximum evaluation of the evidence comes to the conclusion that a prima facie case has been made out, it must call for the defence. If the accused elects to remain silent, the court must proceed to convict him (See PP v. Mohd. Radzi Abu Bakar [2006] 1 CLJ 457).” 120

5.2 The learned HCJ found:

That the prosecution had adduced sufficient direct evidence to show that the appellant was in possession of 125 dangerous drugs on the day, time and place as stated in the charge.

In view of the weight of the drugs, the learned HCJ invoked the presumption of trafficking under s.37(da)(xvi) 130 of the DDA and called upon the appellant to enter a defence.

After the three alternatives were explained to the appellant, he elected to give sworn evidence.

(ii) The Appellant’s Defence [6] The appellant did not call any other witness:

6.1 His version of the facts is that, at the time of his arrest, he was 140 working for a Chinese employer, managing a 16-acre durian orchard near Gunung Jerai.

6.2 He had been doing this job for five years, earning a monthly salary and daily commission, and grew and sold young 145 coconuts on a piece of land behind his late father's house, which is where he was arrested.

6.3 Houses no. 28 and 28A belonged to his late father and were previously occupied by his brothers, who have since passed away:

These houses have been vacant for years, are in poor condition, and have no electricity or water.

The back door was broken, so anyone could enter.

The appellant kept about 10 dogs on the land to protect his crops. He visited every night to feed them.

6.4 On the night of his arrest:

He left the orchard around 9:00 pm with a worker named Pak Aad, who helped with the orchard but was not responsible for feeding the dogs. 165

Sometimes, Pak Aad accompanied him at night to feed the dogs.

They had stopped at a restaurant to eat, then bought leftover food for the dogs. When they arrived at the land, 170 Pak Aad waited outside on the motorcycle while the appellant went to feed the dogs.

While feeding the dogs, a blue car arrived and parked near house number 28.

The appellant approached the car and found three men inside, who identified themselves as police officers. The police handcuffed both the appellant and Pak Aad, brought them into house 28A, and made several phone 180 calls.

The appellant tried to call for his brother, but he was not heard. 185 6.5 The police then brought a brown container to the appellant and said he would be prosecuted for possessing it.

6.6 They released Pak Aad, telling him to run away or face prosecution. Pak Aad left, abandoning his motorcycle. The 190 appellant claimed that SP5 was not present during these events.

6.7 The appellant insisted:

He had no knowledge of the container or its contents.

He believed he was framed because, during the previous fruit season, he had chased away a group of drug addicts (including a former police officer named Ganthan/Abas) 200 who allegedly had been stealing durians.

After several confrontations, Ganthan threatened to take revenge. The appellant did not report this to the police because his employer forbade it. 205 Findings of the Trial Judge at the Close of the Defence Case [7] At the close of the defence case, the learned HCJ held that the defence had failed to raise a reasonable doubt in the prosecution's case that he was in possession of the dangerous drugs and he had 210 also failed to rebut the presumptions of trafficking under s.37(da)(xvi) of the DDA on a balance of probabilities. The appellant was found guilty of the charge preferred against him and was convicted of the offence under s. 39B DDA: 215

The learned HCJ found that after considering the evidence adduced by the defence, there were fatal flaws and weaknesses which rendered the appellant’s defence wholly illogical and unbelievable. 220

Accordingly, the learned HCJ found that the appellant failed to rebut the presumption of trafficking in dangerous drugs on a balance of probabilities and he had failed to create a reasonable doubt in the prosecution’s case. 225

The appellant was convicted of the charge and sentenced to 30 years' imprisonment from the date of arrest.

No whipping was imposed in view of the appellant's age. 230

(C) THE APPEALS: [8] The appellant argued for appellate intervention on the premise that:

The learned trial judge had failed in the appropriate judicial 235 appreciation of material evidence in the prosecution’s case, thus falling foul of the principle enunciated in the case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97: “Generally, an appellate court will not intervene unless the trial court 240 was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of the evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good 245 reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. Where 250 contemporary documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence may be set 255 aside on appeal.”

It is trite law that an appellate court will not disturb or question the facts determined by the lower courts, unless the lower courts made a clear legal mistake or ignored important 260 evidence, resulting in a serious and substantial miscarriage of justice to the appellant. Magendran Mohan v PP [2011] 1 CLJ 805 was cited that had observed: “[40] Normally, the appellate court does not interfere with the 265 concurrent findings of fact of the courts below, in the absence of very special circumstances. But where the courts below ignore, overlook or commit errors of law apparent on the face of the record which result in serious and substantial miscarriage of justice to the accused, it is the duty of the 270 appellate court to step in and correct the legally erroneous decision of the courts below.”

At the High Court the following issues were raised:

The defence's main complaint is that the prosecution failed to establish the element of possession.

The learned counsel submitted that the drugs were not recovered outside the house, with the appellant holding 280 onto it as claimed by SP5.

The prosecution had supposedly failed to exclude other people’s access to the house and, therefore, had failed to establish the element of possession.

(D) ANALYSIS AND FINDINGS BY THE COURT OF APPEAL [9] The appellant filed twenty-one (21) grounds of appeal:

The learned counsel, in her submission, stated that she will 290 confine to one main ground of appeal to be canvassed before us, namely that the learned HCJ erred in finding that there were no three (3) different versions of the appellant's arrest location. 295

In other words, the issue before us today is where was the appellant arrested, given the three versions of the arrest location. WHETHER THE LEARNED HCJ HAD ERRED IN FINDING THAT THERE WERE NO THREE (3) DIFFERENT VERSIONS OF THE 300 APPELLANT'S ARREST LOCATION [10] The appellant submitted that:

10.1 The prosecution’s case rests primarily on the evidence and 305 testimony of the main prosecution witness, SP5 (the raiding officer), concerning the location of the appellant’s arrest and the seizure of drugs:

SP5 claimed the arrest occurred at a specific spot marked 310 “X” (in red) on a sketch plan (exhibit P21).

However, SP5’s answers during cross-examination revealed inconsistencies and confusion about the exact location of the arrest and seizure.

These include changes to the sketch plan, differences between markings made by SP5 and the investigating officer, SP6, and difficulties in explaining the incident’s location from the photographs.

10.2 SP5 acknowledged that the photographs did not clearly show where the appellant was arrested and that there were discrepancies between his account and SP6's regarding the arrest site. These inconsistencies reflect multiple, conflicting 325 versions of the arrest location within the prosecution’s own evidence, which is significant and raises reasonable doubt in the Prosecution’s case.

10.3 The investigation officer, SP6, was also questioned on the 330 issue of the exact place of arrest and seizure of drugs. The learned counsel submitted that there are contradictions and multiple versions regarding the actual location of the appellant's arrest and the seizure of drugs, as admitted by the main prosecution witnesses, SP5 and SP6. The evidence 335 shows three conflicting locations as follows:

at the place marked X (in red) on P21 by SP5.

at the place marked X (in black) on P21 by SP6; and 340

in the said house.

10.4 It was asserted that the various versions and contradictions above are serious and material as it is directly relevant to the 345 issue of access to the said house because it was put to both SP5 and SP6 that the appellant was arrested in front of the said house and that it was suggested that the drugs were recovered/seized from inside the said house and not outside the house as alleged by SP5:

SP6 had testified that she did not know if the raid had taken place inside the house.

It was posited that these supposed material contradictions 355 and unexplained versions (and questions) in the prosecution’s case strike at the heart of its case against the appellant, as it obviously casts serious doubts as to whether the drugs were recovered from the appellant as alleged by SP5.

The supposed contradictions brought about three versions in the prosecution’s own case, and the benefit of the doubt ought to have been given to the appellant. The Federal Court case in Chan Wei Loon v Public 365 Prosecutor and Another Appeal [2021] 4 MLJ 660 was cited that decided: “[86] The evidence in D184 and the oral evidence of the three said witnesses clearly contradicted each other, and this 370 contradiction was not mere contradiction but material contradiction as the lives of the appellants hinge upon the evidence. Our curiosity was further raised as D184 was never produced by the prosecution but the defence. What was it that the prosecution was trying to hide? When SP14 375 made his police report, D184, he was definitely aware of the existence of the first floor (tingkat 1) and the ground floor (tingkat bawah). This was in stark contrast with his evidence in court. … 380 [88] In the light of the contradictions inherent in the prosecution evidence, we could not but agreed with learned counsel for the appellants that there was grave doubt on the question of whether the appellants were arrested on the first or ground floor of the said premises and the benefit of the 385 doubt ought to be resolved in favour of the appellants. Or course we were aware that there will always be discrepancies and contradictions in a case. However, in light of D184 and the sudden amendment to the charge, the evidence of the prosecution witnesses must be treated with 390 caution and looked upon with suspicion. We adopt with approval what Vincent Ng JC (as he then was) had said in Public Prosecutor v Lee Eng Kooi [1993] 2 MLJ 322.” Also cited was the Federal Court in Lee Kwan Woh v Public 395 Prosecutor [2009] 5 MLJ 301, which had observed: “The appellant's case as put to the relevant prosecution witnesses was that he was not apprehended the moment he emerged from his brother's car but that he was arrested in the compound of house No 400

The investigating officer's failure to investigate this allegation despite being informed of this fact during investigation was a serious omission. An inference in the accused's favour ought to have been drawn by the trial judge at the close of the prosecution case when the investigating officer's failure was brought to light. If so, doubt 405 would have been cast upon the evidence of the investigating officer”.

10.5 It was also argued that:

The learned that HCJ merely accepted the evidence of SP5 and SP6 at face value without subjecting them to a maximum evaluation and without considering the above material contradictions, thereby depriving the appellant of the opportunity of being acquitted.

The learned HCJ also failed to consider that SP6’s purported explanation during re-examination did not explain the doubts that arose because of the serious contradictions submitted above.

10.6 The respondent in their reply, submitted that:

The appellant's version of defence is that the appellant was arrested outside the house, but drugs were found 425 inside house number 28.

The appellant has also raised the issue of where the appellant was arrested: at the spot marked ‘X’ (red) by SP5, or at the spot marked ‘X’ (black) by SP6 in the rough 430 diagram of exhibit P21, which are at different locations within the same place.

SP6 also took pictures in the house, where it was suggested, without foundation, that drugs were 435 supposedly found in the house.

The respondent argued that SP5 has testified that the ‘X’ mark (black) by SP6 in P21 is correct, but the more accurate place is slightly down.

SP5 then made an ‘X’ mark using a red ink pen on the rough diagram of P21 in court.

SP6, when testifying, stated that the sign, which is ‘X’ 445 (black), is based on the information of SP5.

SP6 states that the ‘X’ mark by SP6 refers to the same place, and the sketch of ‘X' (red) by SP5 is more accurate (see K.6, PDF 77). 450

SP6 explains that there is an error in the scale of the drawing in P21, and states that ‘X’ (black) means close to the house, just as in the sketch of ‘X’ (red) by SP5.

10.7 SP6, on being re-examined by the learned DPP on the three 455 conflicting versions as to where the appellant had been arrested, had testified as follows (RR Jld 2 K.6, PDF 96): “S Baik, berkenaan peguam ada sebut tentang tiga versi yang kononnya ‘X’ kamu, ‘X’ RO dan tangkapan dalam rumah, boleh 460 kamu jelaskan tentang kewujudan 3 versi dalam siasatan kamu? Ada kah? J Tiga versi tiada Yang Arif, hanya kesilapan semasa rajah kasar sahaja Yang Arif, tapi tempat yang sama. 465 Mahkamah: Nanti, tiada 3 versi hanya kesilapan? J Kesilapan lakaran rajah kasar oleh saya Yang Arif. Tapi tangkapan adalah di berhampiran sebuah rumah di alamat no. 470 28 Jalan Market, Gurun, Kedah.Q: Saya katakan ada 3 tempat dikatakan tempat tangkapan iaitu 'X' kamu, 'X' RO dan kawasan dalam rumah.”

10.8 It was further argued that:

Based on the evidence of SP5 and SP6, as well as exhibit P21 and police report exhibit P23 (see K.7, PDF 51), the place of arrest of the appellant was near house number 28, which is consistent with the charges against the 480 appellant in this case.

Moreover, it was revealed during the defence case, the appellant stated that, during the incident, he saw the Bezza car near house number 28 and approached it 485 before being arrested.

During his cross-examination, the appellant stated that he was arrested in front of house number 28. The whole of this evidence, whether at the spot mark ‘X’ was near or in 490 front of house No. 28, is consistently argued to show that the appellant was indeed detained near house No. 28. [11] We observed that SP6 had maintained that the appellant was arrested and the drugs were seized outside the house, directly from 495 the appellant’s hands. [12] We find the HCJ was right when she rejected the defence’s argument that the drugs were found inside the house, noting that SP5’s actions searching the house after the arrest and SP6’s 500 investigation, which demonstrate thorough police work. The HCJ rightly concluded that taking photographs inside the house does not support the defence’s claim that the drugs were found inside it. We find these are mere suggestions made by the defence during cross-examination, which cannot be considered as proof. 505 [13] The appellant further argued before us:

That the learned HCJ had failed to appreciate that the supposed material contradictions in the prosecution’s 510 case above had created a split in its case, which can only be resolved by calling at least another raiding officer in the team to confirm SP5’s evidence.

Therefore, it was suggested that the failure of the 515 prosecution to adduce such potentially corroborative evidence, especially when the defence had mounted a strong challenge regarding the issues raised above, must surely attract an adverse inference against its case under s.114(g) of the Evidence Act 1950 (EA).

If such witnesses were called, they would have very likely confirmed that the appellant was arrested outside the house, and the drugs were recovered from inside the house.

It was asserted that SP5 did not arrest the appellant; another raiding officer did, after which SP5 arrived at the scene. Although SP5 disagreed with this, it was argued that this was never rebutted by any other raiding officers 530 involved in the raid. [14] The respondent pointed out that:

Grounded on the evidence of SP5 and SP6, as well as exhibit 535 P21 and police report exhibit P23 (see K.7, PDF 51), the Appellant's place of arrest was near house number 28, which is consistent with the charges against the appellant in this case. 540

Moreover, during the defence case, the appellant stated that, during the incident, he saw the Bezza car near house number 28 and approached it before being arrested.

During his cross-examination, the appellant stated that he was 545 arrested in front of house number 28. [15] We refer to paragraph (35) of the HCJ’s grounds of judgment when the learned HCJ said: 550 “[35] I perused the notes of evidence and found that the submission by the learned counsel is not evidenced based and devoid of merit. SP5 had consistently maintained only one version, and the version is: 555 Saya parkir kereta sebelum rumah dalam gambar ini. Jarak antara tempat pemerhatian dan pintu hadapan lebih kurang 15- 20 meter. My car was separated from no. 28 by the road. 560 Pada mulanya pintu hadapan dalam keadaan tutup. Lima minit kemudian saya nampak pintu hadapan buka dan lihat seorang lelaki Sikh keluar pintu itu. Dia sedang memegang, kedua tangan pegang satu bungkusan jaket dan menuju ke tepi rumah semakin 565 menghampiri. Bila dia jalan keluar jarak dia dan saya menjadi lebih dekat. Dia pegang jaket dengan kedua-dua tangan. Cuaca masa kejadian baik dan tak hujan. Waktu malam cahaya 570 datang dari rumah hadapan rumah no. 28. menjadikan tempat jelas. Lampu motokar dalam keadaan tutup. 575 Kandungan tak dinampak dan dibalut dengan jaket. Saya tahan tepi rumah no. 28 dan sebaik tahan saya terus rampas daripada OKT bungkusan jaket. Dengan bantuan lampu hadapan rumah dan lampu suluh yang saya dan anggota miliki. Saya jalankan pemeriksaan sambil dilihat oleh OKT. Kandungan dalam jaket ini 580 dan saya dapati dalam jaket ini terdapat 1 bekas plastik berpenutup. Saya buka penutup plastik ini dan dapati dalamnya 2 bungkusan plastik lutsinar yang diisi dengan syabu. Saya camkan plastik yang saya rampas dan bekas plastik berdasarkan tandaan saya, tandatangan dan tarikh. 585 Under cross-examination, SP5 again testified: Masa lihat Sikh saya masih dalam kereta. Tangkap lebih kurang beberapa saat dia keluar. Ya, kerana ini tak tangkap dia di depan 590 rumah. Tidak setuju saya buat rampasan dadah di dalam rumah ini.” [16] The learned HCJ found:

That SP5's testimony is credible, showing that the appellant came out of the house holding the drugs, which were covered in a bundle of jackets and was arrested when he was walking to the side of the house. 600

SP5's testimony is also consistent with contemporaneous documents made by him, namely the search list (exhibit P22) and his police report (exhibit P23). [17] We refer to the sketch plan P21 (K.7 RR Jilid 3 PDF 49), which 605 the learned counsel argued that it supports their contention that the appellant was arrested at three different locations and refer to the marking ‘X’ made by SP5 and SP6 as follows: 610 [18] The sketch, as admitted by the SP6:

Was not made according to scale. 615

We find that the marks ‘X’ are both outside house No. 28, which supports the prosecution's case that the appellant was indeed arrested outside the house. 620

Even if the ‘X’ was not marked at the same spot, to our mind, this is just a minor inconsistency that is bound to happen in any prosecution case; it is not material and does not affect the credibility of the prosecution witnesses. 625

We refer to the Federal Court case of Public Prosecutor v Datuk Haji Harun Haji Idris (No. 2) [1977] 1 MLJ 15 that observed: “The question is whether the existence of certain discrepancies is 630 sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent for good and cogent reasons to accept one part of the testimony of a witness and to reject the other. It is, therefore, necessary to scrutinise each 635 evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances”. (emphasis is ours) [19] We observed that during the defence case:

The appellant stated that at the time of the incident, he saw the Bezza car near house number 28 and approached the Bezza car before being arrested. 645

During his cross-examination, the appellant confirmed that he was arrested in front of house number 28.

We find that the arrest occurred at the ‘X’ mark, nearby, or indirectly in front of house number 28. We find that all evidence indicates that the appellant was indeed arrested outside house 650 No. 28. [20] Concerning the photographs taken inside the house:

SP6 also testified that she had taken photographs of the inside 655 of the house, as SP5 had informed her that he had entered the house for further investigations.

Under such circumstances, SP6 found it unnecessary to investigate access to the house.

The HCJ held that SP5's act of investigating inside the house after the arrest and SP6's investigation of the house is reflective of a thorough, responsible and conscientious discharge of duties by a raiding officer and an Investigating 665 Officer.

We agree that the taking of photographs inside the house does not support the defence's submissions that the drugs were found inside the house when the evidence was overwhelming, 670 showing that the said drugs were found with the appellant outside the said house. [21] In the present case: 675

The testimonies of SP5 and SP6 are consistent that the said drugs were found with the appellant outside house no.28.

We refer to the search list at exhibit P22 signed by both the appellant and the SP5, which stated the details of items seized, the place of seizure and the police report at exhibit P23 (No. 680 Repot: GURUN/000435/21 dated 10/02/2021).

We find that SP5's testimony was consistent with the documentary evidence, namely, the search list P22 (K.7 RR 3 PDF 50, signed by the appellant), and his police report 685 P23 (K.7 RR 3 PDF 51).

In the circumstances, we are of the opinion that there was no need for additional corroborative evidence, such as calling at least another raiding officer in the team to confirm SP5’s 690 evidence.

The evidence presented was sufficient on its own, and there is no gap in the prosecution’s case; neither can s114(g) EA be invoked against the respondent’s case. 695 [22] Based on the above observations, we are satisfied that the defence has failed to show that the drugs were recovered inside the house. It is abundantly clear that the drugs were recovered outside the said house. 700 ACCESS TO THE SAID HOUSE/PREMISE [23] We find that we also need to address this issue since the appellant submitted that the prosecution has also failed to exclude access of others to the said house and has further failed to prove that 705 the alleged drugs were in the exclusive domain of the appellant when there is clear evidence in the prosecution’s case that the said house was accessible and/or inhabited by others and this issue was never investigated at all by SP6. 710 [24] It was also put to SP5 that the appellant did not live in the said house, and that others did. This version, the appellant claimed, was never rebutted by the prosecution and cited PP v Mohd Sairi bin Abdul Samat [2013] 6 MLJ 741, where the Court of Appeal (COA) held: 715 “(1) Even though it was established that the appellant was the occupier of the room, mere occupation of the room per se was insufficient to prove custody and control and possession of the drugs. There was evidence that the appellant’s family members, his friends and his 720 brother’s friends also had access to the room. Even if the evidence regarding ‘Kamal’ was rejected, the prosecution had failed to exclude the possibility that others had access to the room and the cupboard. Custody implied knowledge of the existence and whereabouts of the goods and the power of control over them, not 725 amounting to possession.

The appellant not only did not have sole access to the room, but he probably also did not have sole access to the cupboard. There was insufficient evidence to find that the appellant had custody and 730 control of all the packages recovered from his room. Even if there was proof of custody and control, it would not be sufficient to establish possession. The prosecution had to establish beyond a reasonable doubt that the appellant had not only custody and control but also knowledge of the drugs, but knowledge alone 735 without exclusivity of either physical custody or control or both is insufficient in law to constitute possession, let alone trafficking.

The learned judge had not invoked the aid of the statutory presumption of knowledge under s 37(d). Thus, knowledge has to be proved either by direct evidence or circumstantial evidence. The 740 testimonies of SP7 and SP6 showed that the drugs were discovered as a result of interrogation of the appellant. However, knowledge of the place where the drugs were hidden did not necessarily constitute possession by the appellant unless there was further evidence produced by the prosecution that it was the appellant who 745 had hidden the drugs there. At the most, it showed that he had knowledge of where the drugs were kept or concealed.” [25] The appellant further submitted that there are several unresolved doubts regarding access to the house where the drugs 750 were allegedly found, as follows:

Who lived in and had access to the house, and who had custody, control, and knowledge of the drugs. 755

The ownership of clothes and belongings found in the house.

The identity of the house owner and why this was not properly investigated by the police, despite its relevance 760 to the case. [26] The learned counsel submitted that the learned HCJ made a finding that the drugs were not recovered inside the house and found it unnecessary to make a finding on the issue of access raised by the 765 appellant, and submitted that this approach adopted by the learned HCJ is wrong as she had misapprehended the facts and evidence in this case in view of the contradictions as submitted above. We do not agree with learned counsel for the following reasons: 770

We observed that the prosecution’s evidence indicated that when SP5 arrived at the scene, the front door of the house was closed.

SP5 then observed the door opening, and the appellant 775 emerged.

The appellant proceeded towards the side of the house, carrying a package wrapped in a bundle jackets. 780

As the police team moved in to apprehend the appellant, SP5 identified them as police officers.

The appellant appeared shocked and speechless. 785

The drugs were found wrapped in a jacket and held by the appellant, which satisfied the criteria for possession.

The act of wrapping the container of drugs in a jacket suggests an intention to conceal its contents.

We find that this constitutes clear evidence that the appellant was in possession of the drugs. [27] We find that the evidence of SP5 and SP6, which is supported 795 by the appellant's own testimony, is that house No. 28 had no electricity supply and was unoccupied:

In the circumstances, we find that the learned HCJ did evaluate and consider the evidence available before the court and found that the drugs were found wrapped in a jacket and held by the 800 appellant, which satisfied the criteria for possession.

There was no misdirection and the learned HCJ found that the said drugs were found outside the house, hence we agree with the HCJ's stand that there is no necessity for her to make a 805 finding on this issue as it is redundant in view of her findings that the drugs were not recovered inside the house.

The learned HCJ at para 47 of her judgment said this: 810 “47. I will now consider whether or not there is sufficient evidence to show that the accused was in possession of the drugs produced in court. Culpable possession requires both physical and mental elements. It is, therefore, incumbent on the prosecution to show that apart from having physical custody and/or control of the 815 drugs, the accused also had knowledge of the nature of the dangerous drugs. In the locus classicus on this issue, Chan Pean Leon v. P.P. [1956] 22 MLJ 237, Thompson CJ held at p. 237.: To establish "possession" for the purposes of criminal law two 820 separate questions are involved. The first is whether the accused party was in possession of the article in question, and the second, by reason of the application of the maxim actus non tacit reum nisi mens sit rea, is whether he had knowledge of the nature of the thing possessed. (at page 239) 825 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. 830 As what amounts to custody, care and control is succinctly stated in Leow Nghee Lim v. R [1956] 1 MLJ 28 where Taylor held: Custody means having care or guardianship; goods in custody are in the care of the custodian and, by necessary implication, he 835 is taking care of them on behalf of someone else. You cannot take care of goods unless you know where they are and have the means of exercising control over them.” [28] The respondent submitted that:

This issue had also been addressed by the learned HCJ in her judgment at paragraph 46 and argued that the issue of access to the house is irrelevant, as the drugs were found outside the house, i.e. in the jacket in the appellant's hand.

In fact, it is the evidence of SP5 and SP6, which is supported by the appellant's own testimony, that house No. 28 had no electricity supply and was unoccupied and further argued that the defence during cross-examination of SP5 briefly stated that 850 the drugs were found in the house, but SP5 did not agree.

However, during the defence case, the appellant stated that while he and Pak Aad were ordered to sit at house No 28, the police who carried out the raid went around the house and 855 made several phone calls. The police then brought a package to the appellant and said they would prosecute the appellant for possessing it.

This matter was not immediately put to SP5 by the appellant, 860 as the raiding officer testified when SP5 was questioned.

In fact, the respondent further argued that the witness statement and the testimony of the appellant in court, showed a material discrepancy in the position of the appellant after his 865 arrest, because at one point the appellant stated that he was at house No. 28, and at another point the appellant stated that he was at house No. 28A. [29] The contradiction of the appellant's defence became even 870 more pronounced when, at the stage of the prosecution's case:

During cross-examination of SP5, the appellant put that drugs were found in house No. 28. However, during the defence case, the appellant stated that he did not know if the police had 875 inspected house No. 28.

During SP6's testimony, he consistently stated that the investigation found the confiscated items were outside the house and seized from the jacket a package in the appellant's 880 possession.

SP6 also testified that the picture inside house no. 28 was taken because SP5 had informed SP6 that SP5 had seen the appellant coming out of the door of house no. 28; hence, the 885 picture inside the house was taken for investigative purposes.

The Respondent argues that during cross-examination, the claim that the impugned drugs were found in the house remains a mere suggestion, which has been denied by the 890 prosecution witness. It was cited: PP v Dato Seri Anwar Ibrahim [1999] 2 MLJ 1, held: “A suggestion in cross-examination can only be indicative of the 895 case put forward or the stand taken by the party on whose behalf the cross-examination is being conducted, but to no extent whatsoever can it be a substitute for evidence if it is clearly repudiated by the witness to whom it is made. In this regard, it was observed in Emperor v Karimuddi Sheikh AIR 1932 Cal 373: 900 ‘Mere suggestions by a pleader or advocate for the accused do not amount to evidence by the fact suggested, unless they are either partly or wholly accepted of the witness for the prosecution'.” 905 Yu Jing v PP (2017) CLJU 315, where the Court of Appeal held: “[57] The learned trial Judge had considered all the above 910 suggestions which was put to the prosecution witnesses during cross examination at the prosecution stage, and she was of the view that such "put questions", are not evidence of the facts stated. The learned trial Judge had correctly applied and stated the position of the law as to "put 915 questions". What was put or suggested to the prosecution witnesses at the prosecution's stage is not evidence of the facts stated at that stage. This Court had the occasion to consider a similar 920 proposition in Ogujiofor Frank Chike v. PP [2014] CLJU 720; [2014] 1 LNS 720, where it was held that suggestions in cross-examinations or "put questions" are merely suggestions/propositions whereby the very foundation of the defence case is being formulated. These suggestions 925 or "put questions", have not crystallised into evidence. "It is no ground to find that the accused had successfully rebutted the presumption of knowledge of the nature of the said drugs based merely upon such put questions which have yet to be testified and proven by the accused." 930 [30] We find that the learned HCJ has made a finding that it is abundantly clear, that the drugs as charged against the appellant were indeed found outside the home and we find that mere 935 suggestions by an advocate for the appellant (the drugs were found in the said house) are not supported by the evidence of witnesses (SP5 and SP6) and contemporaneous documents available before the court. Hence, mere suggestion does not mount to evidence unless it is either partly or wholly accepted by the witness for the 940 prosecution, which is not in the present case. KNOWLEDGE [31] We find that the appellant's act of hiding the drugs in the jacket he was holding showed that he had knowledge of the drugs. From all 945 this evidence, it can be inferred that the appellant did indeed have knowledge of drugs in this case. The mental element of knowledge of the thing possessed is rarely proved by direct evidence. Knowledge is usually inferred from the surrounding circumstances. This was reiterated by this Court in Simon Savarimuthu Thevarajah v. PP 950 [2020] 5 CLJ 105 in the following terms: “On the facts before us, we were in as good a position as the trial judge to draw the inference whether the appellant had knowledge of the drugs. It is trite that proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can be drawn varies from 955 case to case. It is sufficient for the prosecution to prove facts from which it can be properly inferred that an accused person had the necessary knowledge. The court is not concerned with the knowledge of a reasonable man but is concerned with reasonable inferences to be drawn from a concrete situation as disclosed in the evidence as it affects a 960 particular person whose knowledge is in issue (see PP v. Chia Leong Foo [2000] 4 CLJ 649; [2000] 6 MLJ 705; Parlan Dadeh v. PP (supra)).” [32] SP4 (chemist) testified that the drug case item analysed was 965 224.8 grams of the dangerous drug methamphetamine. The respondent argues that, in the circumstances, possession has been established, which automatically brings in the presumption of distribution under section 37(da) (xvi) of the DDA against the appellant, where he is deemed to be trafficking the said drug. 970 PAK AAD, GANTHAN/ABAS AND THE DOGS [33] At the defence stage, the appellant testified that:

He had known a person named Pak Aad for 3-4 years, who 975 worked as his garden assistant, but he did not know Pak Aad’s full name.

The appellant maintained that he had no knowledge of the container or its contents (the drugs). 980

The appellant also claimed that SP5 was not present during the raid on the house and asserted that he was framed, explaining that during the previous fruit season, he had chased away a group of drug addicts, including a former police officer 985 known as Ganthan or Abas, who had been stealing durians from his employer’s orchard.

After several confrontations, Ganthan threatened to take revenge. The appellant did not report this to the police because 990 his employer prohibited it. [34] We find that the Judge had assessed and considered the defences raised by the appellant and had found that the defence allegations were not only not put forward as early as possible but were 995 also illogical and unreliable. It is settled law that the defence should be placed as early as possible. This defence was not placed on either SP5 or SP6 when they testified, and it was raised only at the stage of the appellant's defence case. See the case of Wong Swee Chin v PP (1980) 1 LNS 138. 1000 [35] Concerning the issue of police witnesses, it had been determined by the COA as follows:

Wan Amirul Mubin bin Wan Kamaruddin v. PP [2017] CLJU 1005 1478; [2017] 1 LNS 1478, the COA held that: “It is unthinkable that PW4 had fabricated evidence in view of the complete absence of any evidence or allegation by the appellant that PW4 had made up a story regarding Exhibit P30. In fact, the appellant admitted during cross-examination that PW4, PW5, and PW7 had 1010 absolutely no reason to lie about him. PW4 and PW5 were police officers who were merely performing their duties and had no reason to lie or frame up the appellant, whom they said they did not know. [30] It is significant to bear in mind that, since both PW4 and PW5 1015 were carrying out their official duties at the relevant time, the court is entitled to presume that their official acts were regularly performed and, prima facie, were done honestly and conscientiously. Section 114 illustration (e) of the Evidence Act 1950 in this regard provides that the court may presume 1020 that judicial and official acts have been regularly performed. In the case of PP v. Dato' Seri Anwar Ibrahim [2014] 4 CLJ, the Court of Appeal said – ‘It must be borne in mind that s. Section 114 (e) of the 1025 Evidence Act 1950 provides that the court may presume that judicial and official acts have been regularly performed. In State of Punjab v. Rameshwar Dass [1957] Cri LJ 1630, the Punjab and Haryana Court held at p. 1631 as follows: 1030 ‘It is well settled that, prima facie, the public servants must be assumed to act honestly and conscientiously. It would, therefore, be basically wrong, without other cogent grounds to consider them as untrustworthy witnesses in respect of 1035 their activities in performance of their official duties, merely because of their official status, unless the evidence is deemed to be suspicious and the conviction of the accused cannot be sustained on the statements of the official witnesses. The presumption that a person acts honestly 1040 applied as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds.” [31] Accordingly, without cogent reasons that would allow us to hold otherwise, it would be manifestly wrong to consider PW4 and 1045 PW5 as untrustworthy witnesses in handling this case. In the end, what we have before us is nothing more than the bare oral testimony, which was a mere denial.”

Sahrul Mazlee Mohd Khalid v. PP [2022] CLJU 4; [2022] 1 1050 LNS 4, the COA held: “[55] There was no evidence of any prior relationship or any evidence that the appellant knew any members of the police raiding team or vice versa. Thus, the learned trial judge concluded that there 1055 was nothing to suggest that the police might have had any motive to frame the appellant. In the absence of any such motive or evidence, the learned trial judge found that, despite the assertion by the defence that the white plastic bag with the drugs was found on the roof of the Viva car outside the house, the evidence 1060 established the fact that the appellant was holding the white plastic bag in his hand when apprehended. ... [94] ...The frame-up theory advanced by the appellant vaporised into 1065 thin air because the large amount of drugs has considerable value. We agree with the learned trial judge that no reasonable person would want to frame up someone by leaving such a vast quantity of drugs with considerable value behind in the bedroom.” 1070

Khee Thuan Giap v. PP [2019] 4 MLJ 651, the COA held that: “[49] The evidence revealed that SP5, SP6 and D/Kpl Yustizal bin Yahya were total strangers in relation to the appellant. The burden is always upon the appellant to prove their 1075 motive or motives in fixing the appellant with the commission of the said offence. In our view, the appellant miserably failed to show that they had an axe to grind against the appellant, which would have prompted them to fabricate and manufacture evidence and to testify 1080 adversely against the appellant at trial. The appellant had equally failed to show that the said prosecution witnesses had harboured a motive to falsely implicate the appellant in the commission of the offence.” [emphasis is ours] 1085 [36] The learned HCJ had assessed the testimony of the prosecution witnesses and subsequently found that it is consistent, especially that of SP5 and SP6. In our view, SP5 and SP6 were mere police officers executing their duties with no reason to fabricate and 1090 manufacture evidence against the appellant in the manner as contended by the appellant. There was equally nothing inherently improbable in their evidence. The learned HCJ has the advantage of audio-visual evidence in accepting the testimonies of the prosecution witnesses, which shows that the evidence of SP5 and SP6 is credible 1095 and mutually supportive of the prosecution's case against the appellant. We find there is not an iota of evidence to prove that SP5 and SP6 had any malicious motive to charge or entrap the appellant. In the absence of such evidence, the testimonies of SP5 and SP6 are justified to be accepted by this court. 1100

(E) CONCLUSIONS [37] Having considered the entire evidence adduced at the prosecution stage as well as at the defence stage of the case, we find that the appellant has failed to rebut the presumption of drug 1105 trafficking on the balance of probabilities as required under section 37(da) of the DDA 1952 for the charge in this case. We also find that the defence has failed to raise any reasonable doubt on the prosecution's case. It is our finding that the prosecution has proved the case beyond a reasonable doubt. We therefore unanimously find 1110 no merit in the appeal against this conviction to justify us interfering with the decision made by the learned HCJ. The appellant’s appeal is dismissed, and the conviction and sentence by the learned HCJ are hereby affirmed. 1115 22 February 2026 Hayatul Akmal Abdul Aziz 1120 Judge Court of Appeal 1125 Counsels: 1130 For the Appellant: Harshaan Zamani together with Sangeet Kaur Deo and Ganeraja Krishnan Messrs Karpal Singh & Co. For the respondent: