Saripuddin Bin Sappe v Pendakwa Raya (S-05(SH)-290-08/2023)

The Appellant, Saripuddin bin Sappe was jointly charged with one Yusuf bin Padu for trafficking in a dangerous drug, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and punishable under section 39B(2) DDA. The High Court convicted the Appellant and sentenced him to life imprisonment, effective from the date of his arrest on 14 January 2021, together with twelve strokes of whipping. Yusuf bin Padu, the second accused at the trial, was acquitted and discharged at the close of the case.

The present appeal is directed against both the conviction and sentence handed down by the High Court on 18 July 2023.

The charge against the Appellant reads: "That you, on the 14th of January 2021, at about 8.00 p.m, located at an open land area of palm oil plantation, Batu 10, Jalan Apas, in the district of Tawau, in the state of Sabah, in furtherance of common intention of you both, did on your own behalf traffic in a dangerous drug to wit 17,656.8 gram of Methamphetamine and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act, 1952 (Act 234) and punishable under Section 39B(2) of the same Act, read with section 34 of the Penal Code". S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

On 14 January 2021, at approximately 5.00 p.m., Assistant Superintendent of Police Idrus bin Arshad (PW3) received intelligence indicating that an act of human trafficking was to take place at a wasteland area adjacent to an oil palm plantation at Mile 10, Jalan Apas, Tawau.

Acting on the information received, PW3 directed SM/D Mancha to assemble an operational team. At about 6.45 p.m., PW3 briefed the team that a group of undocumented migrants was expected to enter Malaysia territory via Sungai Nyamuk and subsequently disembark in the vicinity of Sungai Mambalua, Mile 10, Jalan Apas.

At approximately 7.00 p.m., PW3 and his team arrived at the designated location, which was then shrouded in darkness. PW3 instructed his men to take up strategic positions in anticipation of the arrival of the suspected vehicles.

At about 8.00 p.m., PW3 observed lights emanating from two vehicles approaching the area in a suspicious manner, traversing the muddy access road leading into the oil palm plantation. As PW3 and his team moved towards the vehicles, both came to a halt. PW3 and his men identified themselves as police officers and produced their warrant cards. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

PW3 observed that a white Isuzu D-Max bearing registration number ST 9215 W (“Isuzu D-Max/the vehicle”) was occupied by three male and two female persons, while an orange Perodua Kembara bearing registration number WLS 3688 was occupied by three male persons.

The two male occupants of the Isuzu D-Max, namely the first accused (the Appellant) and second Accused (Yusuf bin Padu) together with the two female occupants, Aleeya Jasmin binti Zakaria (PW5) and Elyana Jill binti Suloh, were arrested. One male occupant of the Perodua Kembara, Abdul Jalil bin Abdul Kadir (PW4), was also arrested and subsequently testified for the Prosecution.

One male occupant of the Isuzu D-Max managed to evade arrest. He was referred to during the trial as “Samuk” and remains at large. PW5 also referred to him as “Ayah” in her testimony. Two other male occupants of the Perodua Kembara, identified as Marto and another individual, likewise escaped arrest and remain at large.

PW3 thereafter conducted a search of the Isuzu D-Max in the presence of both Accused. In the cargo bed of the vehicle, he discovered a black luggage (P9). Inside P9 were seven green Chinese tea packets labelled “GUANYINWANG”, wrapped in clear plastic, and eighteen Chinese tea packets similarly labelled but wrapped in brown adhesive tape. All the packets contained substances suspected to be narcotics. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

In the course of a further search of the Isuzu D-Max, PW3 also recovered a brown backpack (P10) located on the front passenger seat. Inside P10 was a yellow plastic packet labelled “DUGRO”, within which was concealed a plastic packet containing substances believed to be narcotics.

A search conducted on the Perodua Kembara did not yield the discovery of any illicit items.

PW4 identified both accused as the persons arrested from the Isuzu D-Max. He testified that Samuk had escaped from the said vehicle and that Samuk had been seated in the front passenger seat next to the Appellant, who was the driver. PW4 further stated that he was unaware of Samuk’s current whereabouts. As PW4 remained in the Perodua Kembara during the arrests, he did not observe P9 and P10 nor did he witness much of the arrest process.

PW5 testified that she and Elyana were accompanying Samuk to see him off. According to PW5, both the Appellant and the second accused were already inside the Isuzu D-Max when she, Elyana and Samuk entered the vehicle. PW5 further stated that, of the three of them, only she and Samuk carried bags into the vehicle. She maintained that P10 was neither her bag nor the bag carried by Samuk on that day.

In regards to the presence of P9 in the Isuzu D-Max, PW5 testified that the group had travelled from Kampung Titingan S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 and made a stop at Mile 8 before proceeding to Mile 10. Shortly before their arrest, the vehicle stopped and four individuals emerged from the bushes and placed a large luggage, of the type commonly used for air travel into the vehicle. Thereafter, the vehicle continued its journey and was intercepted by the police. PW5 identified P9 as the luggage that had been loaded into the Isuzu D-Max by those four individuals.

PW5 described the seating arrangement in the Isuzu D-Max as follows: The Appellant was the driver; Samuk was seated in the front passenger seat beside him; PW5 was seated in the middle of the rear passenger seat; the second accused was seated to her right, behind the driver; and Elyana was seated to her left.

Following the arrests, members of PW3’s team escorted the arrestees to the Tawau District Police Headquarters (IPD Tawau), while PW3 transported the seized items separately in an uninterrupted journey to the same destination.

Upon arrival at IPD Tawau, PW3 marked the drug exhibits by affixing his signature and the date of seizure thereon.

PW3 lodged a police report, P14(1–3), in respect of the arrests and seizure of the drug exhibits at 1.13 a.m. on 15 January 2021. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

PW3 also photographed the crime scene at the time of the arrests and seizure (P11(1–6)) and separately photographed the drug exhibits (P12(1–6)).

On 15 January 2021 at about 2.00 p.m., PW3 handed over all five arrestees together with the seized items to the Investigating Officer, Inspector Syed Muhammad Iqbal bin Syed Yassin (PW6), at the Narcotics Division, IPD Tawau.

The handover was documented by way of a “Borang Serah Menyerah”, P16(1–2), which was duly signed by both PW3 and PW6.

PW6 subsequently made his own markings on the drug exhibits and placed them in a metal cabinet, to which only he had access by virtue of sole custody of the key.

On 22 January 2021, PW6 delivered two boxes marked SI 1 and SI 2, containing the seized drug exhibits, to Biling Ak Peter Raig (PW1), a chemist attached to the Chemistry Department Malaysia, Kota Kinabalu.

On 16 June 2021, PW6 collected the chemist’s report, P7(1–3), from PW1 at the Chemistry Department Malaysia, Kota Kinabalu, together with the same boxes earlier marked SI 1 and SI 2, which were by then sealed and stamped with label number 21-FR-S-00139. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

PW1 confirmed that the crystalline substances analysed were Methamphetamine with a net weight of 17,656.8 grams, a dangerous drug listed in the First Schedule to the DDA.

At the close of the prosecution’s case, the learned High Court Judge (“Judge”) was satisfied that the prosecution had established the essential elements of the charge. The learned Judge accepted the evidence of the chemist (PW1), whose analysis in exhibits P7(1)-(3) confirmed that the substances seized were methamphetamine, a dangerous drug listed in the First Schedule to the DDA weighing 17,656.8 grams. As PW1’s evidence on the identity and weight of the drugs was neither challenged nor rendered doubtful under cross-examination, and was not inherently incredible, the learned Judge accepted it without reservation.

On the issue of possession, the learned Judge relied principally on the evidence of PW5, who testified that the backpack marked P10 did not belong to her or to Samuk, and that the other female passenger, Elyana, did not bring any bag into the Isuzu D-Max. PW5 had personal knowledge of Samuk’s bag and was unequivocal that it was not P10. The evidence further showed that after the vehicle stopped at Mile 8, Jalan Apas, to collect gamecocks, it later stopped briefly at another location where four individuals emerged from the bushes and loaded the bag marked P9 into the cargo bed of the vehicle. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 9

Taking these circumstances cumulatively, the learned Judge found that the accused were in a position to exercise custody and control over the drugs and to deal with them should the need arise. The attempt by learned counsel for the Appellant to shift responsibility to Samuk was rejected. While Samuk’s existence was not in dispute, the learned Judge correctly observed that the duty of investigation does not rest with the raiding officer (PW3), but with an independent investigating officer to preserve impartiality.

The learned Judge further found that the Alcontara Notice referred to PW6 did not contain sufficient information to warrant police action.

As regards the absence of fingerprint evidence on the drug exhibits, the learned Judge held that such evidence would, at best, have been corroborative. Given that both accused were the original occupants of the vehicle, and in light of PW5’s convincing testimony that neither P9 nor P10 belonged to her, Samuk, or Elyana, the absence of fingerprints did not undermine the Prosecution’s case.

In relation to P10 specifically, the learned Judge emphasised that both accused were the original occupants of the Isuzu D-Max, and that P10 was located on the front passenger seat, within close proximity of both accused in the confined space of the vehicle, before the other passengers, none of whom carried P10, entered the vehicle. When these facts were considered S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 together with the loading of P9, which could only have occurred after the Appellant stopped the vehicle, the learned Judge concluded that the prosecution had established a prima facie case of custody and control with knowledge on the part of both the Appellant and the second accused. The learned Judge further observed that there was no explanation for the vehicle being driven onto wet and muddy wasteland in pitch darkness, a circumstance forming part of a continuous series of events culminating in the arrests and the discovery of P9 and P10.

The learned Judge rejected the argument that the accused’s failure to flee indicated innocence. The muddy terrain, the darkness, and the presence of the raiding party adequately explained their conduct. Conversely, the fact that Samuk and two others escaped did not, without more, establish that only they were culpable. Having found that possession was established, the learned Judge held that the statutory presumption of trafficking arose and that it was incumbent upon the accused to rebut it.

On trafficking, the learned Judge ruled that the evidence at the close of the prosecution’s case established actual possession by the accused, thereby triggering the presumption of trafficking under section 37(da)(xvi) of the DDA. Accordingly, the burden shifted to the accused to rebut the presumption on a balance of probabilities. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 11

The learned Judge further evaluated the Appellant’s defence. The learned Judge observed that the Appellant’s witness statement (WSDW1) warrants detailed consideration, particularly as material portions of his account were not put to the relevant prosecution witnesses during cross-examination, and certain aspects were inconsistent or inherently improbable when assessed against the totality of the evidence adduced at trial.

The Appellant testified that he had initially gone to Samuk’s house at Kampung Titingan to fetch Samuk in order to send him to Mambalua.

Upon arriving at Samuk’s house, Samuk allegedly requested to borrow the Isuzu D-Max to transport several gamecocks. Instead, Marto, one of the two males who later escaped from the Perodua Kembara used the vehicle to collect the gamecocks, while the Appellant and Samuk remained at Samuk’s house. The Appellant averred that during the time Marto was using the vehicle, he was unaware of what Marto might have done to it.

The Appellant and Samuk then waited for the high tide, as Samuk intended to travel by boat. When the time came, they departed with two female passengers. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 12

As they approached the Isuzu D-Max, the Appellant observed Samuk wearing a black jacket. He stated that Samuk was carrying a backpack concealed beneath the jacket. According to the Appellant, the backpack was brown in colour and similar to exhibit P10. Samuk was also said to have had a black bag, which was placed at the rear of the vehicle.

According to the Appellant, Marto drove the Perodua Kembara, accompanied by PW4 and another passenger, and followed the Isuzu D-Max driven by the Appellant. At Samuk’s request, the Appellant stopped at Mile 3 to pick up the second accused from his residence. The second accused then entered the Isuzu D-Max and sat at the rear with the two female passengers.

They subsequently proceeded to the Appellant’s house at Mile 8 to collect the gamecocks. Approximately half were loaded into the Isuzu D-Max, while the remainder were placed in the Perodua Kembara driven by Marto. Both vehicles then continued towards Mambalua.

When they were nearing their destination, Samuk allegedly instructed the Appellant to use a road through a palm oil plantation. About ten metres before reaching the main road, a man emerged from the plantation and stopped their vehicle. At Samuk’s instruction, the Appellant halted. The man asked Samuk, “Ada si Godak?” to which Samuk replied, “Iya.” Samuk then told the Appellant to proceed. Shortly thereafter, two other men stopped the vehicle. Again, acting on Samuk’s instruction, S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 the Appellant stopped, and the two men placed a large black bag at the rear of the vehicle. The Appellant maintained that he did not know the contents of the bag, as it was closed and it was dark at the time. He further stated that Samuk told him “Ini kiriman saya.”

Samuk then directed the first accused to move the Isuzu D-Max forward to a muddy area which the Perodua Kembara could not traverse. The Appellant stopped as they intended to transfer the gamecocks from the Perodua Kembara. He testified that while Marto and his companions were transferring the gamecocks into the rear of the Isuzu D-Max, the five occupants of his vehicle remained inside. It was dark and drizzling. Not long thereafter, they were arrested.

According to the Appellant, Samuk escaped by climbing out through the window on the driver’s side, as a member of the raiding team was positioned on the left side of the vehicle. The Appellant also saw Marto fleeing into the oil palm plantation. He did not give any evidence as to how the other individual in the Perodua Kembara managed to escape.

The Appellant further testified as follows: “Saya dan Haji Yusuf disuruh duduk, digari, ditutup mata dengan pengikat dan kemudian dikasi tiarap. Jadi saya tidak lihat apa yang mereka Polis lakukan pada kereta saya. Pada masa itulah baru saya tahu mereka yang menyerbu kami adalah pegawai Polis.” S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 14

He stated that it was only at the police station that he saw exhibit P9. He was asked to sign a document but claimed that the police did not show him the contents of what he had signed.

The Appellant also asserted that he was never administered the statutory caution. He maintained that exhibit P10 belonged to Samuk and denied having informed PW6 that the drugs found in P10 were his or that he had knowledge of their presence.

The learned trial Judge rejected the Appellant’s defence as an afterthought and a recent invention, principally because the material aspects of his narrative were never put to PW5 during cross-examination. PW5 was thereby deprived of the opportunity to explain, clarify or rebut the allegations subsequently advanced by the defence.

In particular, the assertion that Samuk had asked the Appellant to stop the Isuzu D-Max to load P9, and that the “kiriman” belonged to Samuk, was not put to PW5. The learned Judge was of the view that given that the incident allegedly occurred within the confined space of the vehicle, PW5 would have been in a position to hear such a request. The learned Judge found that the failure to challenge her on these crucial points was fatal to the credibility of the defence. In this regard, the learned Judge found support in the principle laid down in PP v Lin Lian Chen [1992] 1 CLJ (Rep) 285; [1992] 2 MLJ 561, that a party’s failure to put its case to a material witness may justify an inference that the defence is a later fabrication. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 15

Equally telling was the omission to put to PW5 the Appellant’s claim that Samuk wore a black jacket to conceal P10. The learned Judge was reminded of PW5’s testimony that she had in fact testified that she helped Samuk pack his clothes into a bag, and that bag was not P10. The defence version concerning the presence of P10 on the front passenger seat was found to be inconsistent with the evidence and unsupported by any prior challenge to PW5.

The learned Judge consequently found the Appellant’s explanation as to the presence of P9 and P10 in his vehicle to be contrived and devoid of credibility. It did not raise any reasonable doubt in the prosecution’s case, much less rebut the statutory presumption of trafficking.

The attempt to shift blame to Marto on the basis that when Marto used the vehicle to collect chickens and that the Appellant did not know what was done to the car was similarly rejected. The learned Judge found that the Appellant himself ultimately attributed possession to Samuk rather than Marto. In any event, the learned Judge rightly pointed out that the court was concerned not with ownership but with possession, which may be joint (see Lee Gee Hian v PP [2021] 1 LNS 1895; PP v Denish Mahavan [2009] 2 CLJ 209). The learned Judge further found that the Appellant’s evidence that Samuk concealed P10 with a black jacket and requested the vehicle to be stopped was found to be bereft of credibility. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 16

The learned Judge further held that no reliance could be placed on the alleged confession made to PW6 while the Appellant was in custody, as it was not made in the presence of a Sessions Court Judge or Magistrate.

As to the contention that PW6 failed to secure Samuk’s attendance as a witness, the learned Judge found this submission to be devoid of merit. The learned Judge had found earlier that there was insufficient identifying information regarding Samuk in that there were no full name, address, or contact details. Although the Appellant stated in his defence that he had gone to Samuk’s house at Kampung Titingan, there was no evidence that he provided PW6 with the necessary particulars to enable the authorities to trace him. Indeed, the Appellant admitted that he did not know Samuk’s current whereabouts. It was never put to PW6 that he knew where Samuk could be found. In those circumstances, the learned Judge opined that no adverse inference could be drawn against the prosecution.

Finally, the argument that the blue box, gamecocks and other items ought to have been seized and produced in court was dismissed as irrelevant. The learned Judge rightly stated that those items bore no nexus to the charge. In contrast, Exhibits P9 and P10 were directly connected to the drugs forming the subject matter of the offence. S/N Ua7kgUpqAku2JGVajKBxug **Note : Serial number will be used to verify the originality of this document via eFILING portal 17

In sum, the learned Judge was fully justified in concluding that the Appellant’s defence was a fabrication that failed to displace the prosecution’s case. The learned Judge found that the Appellant failed to rebut the statutory presumption of trafficking on a balance of probabilities and failed to raise reasonable doubt concerning the essential elements of the offence with which he was charged. The Appellant was accordingly convicted on the charge preferred against him.

The Appellant’s petition was founded upon a number of interrelated grounds, each seeking to challenge the findings of the High Court. The grounds may be conveniently consolidated under the following broad issues:

The alleged erroneous finding of possession;

The failure to conduct proper investigations and the non-calling of material witnesses; and

The existence of common intention between Samuk, PW5 and Elyana. Findings The First Issue – Possession [59] The learned counsel’s primary contention rests on the argument that the Appellant could not have possession in law, as he allegedly had no knowledge of the drugs contained in P9 and P10. S/N Ua7kgUpqAku2JGVajKBxug [60] With regard to P10, it was submitted that Samuk, who was seated in the front passenger seat prior to the arrest where P10 was found and as confirmed by prosecution witnesses such as PW3, should be regarded as the owner of P10. The fact that Samuk fled the scene further suggests that he had knowledge of P10 and its contents. [61] In regards to P9, learned counsel argued that four other individuals, unknown to the Appellant, were responsible for placing P9 in the back seat of the vehicle driven by the Appellant. These individuals were said to have communicated with Samuk before instructing the Appellant to proceed into the palm oil plantation with the intention of transporting P9 to Indonesia. It was therefore contended that the Appellant could not have had knowledge of the contents of P9, as the four individuals were unknown to him but known to Samuk instead. Learned counsel further submitted that mere custody and control of the items is insufficient to establish possession under the DDA; the element of knowledge must be present and proven. The learned counsel highlighted that proximity of the Appellant to P9 and P10 alone does not, in itself, constitute knowledge. [62] At the outset, it is convenient to restate the law relating to possession of drugs found in a place under the control or custody of an accused. To establish possession, the prosecution must prove two elements: S/N Ua7kgUpqAku2JGVajKBxug First, that the accused had custody or control of the impugned drugs; and Second, that the accused knew of the presence of the drugs, had power of disposal, and was conscious of the same. Possession need not be exclusive. This principle was affirmed in PP v Denish Madhavan [2009] 2 CLJ 209 (Federal Court, paragraphs 15–19). [63] In PP v Abdul Rahman Akif [2007] 4 CLJ 337, the Federal Court, through Arifin Zakaria FCJ, endorsed the reasoning of Lord Morris in Warner v Metropolitan Police Commissioner [1968] 2 All ER 356 that deliberate assumption of control over a package, with knowledge of its contents, constitutes possession of those contents. Misapprehension as to the precise nature of the contents does not negate possession. Similarly, in Ramis a/l Muniandy v PP [2001] 3 SLR 534, the Singapore Court of Appeal held that physical control of drugs and in the absent of any reasonable explanation, gives rise to a strong inference of knowledge. [64] The central question is whether the Appellant had control or custody over the impugned drugs. The evidence, as properly evaluated by the High Court, establishes that he did. PW5 testified that the Appellant was the driver of the Isuzu D-Max on the date of arrest and the vehicle confirmed by PW6 belong to the Appellant. The Appellant therefore exercised exclusive control over the vehicle and deliberately drove into a palm oil S/N Ua7kgUpqAku2JGVajKBxug plantation at night, stopping to facilitate the loading of P9 onto the cargo bed. No evidence was adduced to explain this conduct, which strongly indicates deliberate avoidance of detection. We find from the notes of evidence that the Appellant did attempt to flee when approached by the raiding team, despite their clear identification as police personnel. The police report (P14 [1–3]) confirms that he was in possession of a valid passport. Accordingly, his attempt to abscond cannot be attributed to a lack of valid documents. [65] PW5 further testified that the Appellant and the second accused were the original occupants of the vehicle before she entered the same vehicle, and this evidence went unchallenged in cross-examination, amounting to admission (see: Wong Swee Chin v PP [1981] 1 MLJ 212). The Appellant was in close proximity to the impugned drugs: P10 at the front passenger seat and P9 on the cargo bed. PW5 confirmed that neither she, Samuk, nor Elyana had brought P10 into the vehicle and that P9 was loaded by four persons during the journey, a fact which we find the Appellant facilitated by stopping the vehicle. This degree of control and autonomy demonstrates knowledge and conscious participation in the trafficking scheme. [66] At this juncture, it is apposite to address the allegation that PW5 had testified that four individuals, allegedly known to Samuk, emerged from the bushes and loaded P9 into the Isuzu D-Max. A perusal of the examination-in-chief reveals that PW5 merely stated that four persons loaded P9 into the vehicle. There was S/N Ua7kgUpqAku2JGVajKBxug no testimony to the effect that those individuals were known to Samuk. Significantly, it was never put to PW5 during cross-examination whether by learned counsel for the Appellant or for the second accused that the four individuals were known to Samuk. Nor did the Appellant, in his defence, assert that the said four persons were known to Samuk. [67] In the circumstances, we find the contention that the four individuals were acquainted with Samuk which surfaces for the first time in the Appellant’s petition finds no support in the evidence adduced at trial. [68] In light of the foregoing, the High Court was correct in concluding that the Appellant possessed the impugned drugs. The presumption of trafficking under Section 37(da) of the DDA was appropriately invoked, particularly given the quantity and nature of the methamphetamine, which was conclusively established through PW1’s evidence. [69] The appellant further contended that Samuk had knowledge of the drugs, inferred from his attempt to flee by jumping out of the vehicle. PW5’s evidence, however, confirms that P10 was not brought in by Samuk. PW5 had personal knowledge of Samuk’s bag as she was the one who had packed Samuk’s bag. [70] The defence theory that Samuk deliberately concealed P10 was first raised during the defence stage, without prior cross-examination of prosecution witnesses. This is a classic example S/N Ua7kgUpqAku2JGVajKBxug of an afterthought defence and recent invention, which, under the principle distilled from the oft-cited authorities, PP v Lin Lian Chen [1992] 2 MLJ 561 and Megat Halim Megat Omar v PP [2009] 1 CLJ 154, may be dismissed by the Court. Similarly, allegations regarding four other persons or directions given by Samuk were unsupported by the evidence and not put to PW5 during trial. Accordingly, these points lack merit. [71] The Appellant further alleged that Marto, who was absent during the arrest, had loaded gamecocks into the Isuzu D-Max, suggesting that the Appellant was unaware of the vehicle’s use. This narrative was not put to the prosecution witnesses, unsupported by PW5 or the second accused, and constitutes a recent invention. Consistent with PP v Lin Lian Chen (supra) and Megat Halim Megat Omar v PP (supra), this defence is rightly rejected by the High Court. [72] Having considered the evidence in its entirety, we find that the learned Judge correctly evaluated the testimonies and made proper findings. We find the Appellant was in possession of the impugned drugs and knowingly trafficked in them. The Second Issue - Failure to conduct proper investigations and the non-calling of material witnesses [73] The Appellant contended that the failure of the prosecution to arrest, trace, and call Samuk as a witness resulted in an unfair trial to the Appellant. It was submitted that Samuk’s existence S/N Ua7kgUpqAku2JGVajKBxug was undisputed, and that he had been in the company of PW5 and Elyana when the Appellant picked him up at Kampung Titingan, Tawau. Learned counsel further argued that the explanation proffered by PW6, the Investigating Officer namely, that he was unable to pursue further investigations or locate Samuk due to the absence of information regarding his full name, address, or telephone number was untenable. According the learned counsel PW6 could have obtained further lead to Samuk through PW5 and Elyana, who had been living with Samuk prior to the arrest, and who referred to him as “Ayah”, thereby evincing a close relationship. It was therefore contended that the prosecution’s omission to secure Samuk’s attendance as a witness was a serious lapse, and that an adverse inference ought properly to have been drawn in favour of the Appellant. [74] We have scrutinised the evidence and the followings are significant. [75] Firstly, the Investigating Officer, PW6, testified that his attempts to trace Samuk proved futile due to the absence of essential particulars such as his full name, residential address and contact number. In the absence of such basic information, the investigation could not meaningfully proceed. [76] Secondly, we observe that neither learned counsel for the Appellant nor learned counsel for the second accused had cross-examined PW5 on the particulars of Samuk, including his S/N Ua7kgUpqAku2JGVajKBxug real name, address, contact details, or present whereabouts. Similarly, PW6 was not challenged in cross-examination regarding the whereabouts of Samuk or the investigative steps purportedly taken to trace him. [77] Thirdly, throughout the entirety of the trial, no evidence was adduced by any party as to Samuk’s full identity, residential address, or telephone number. The Appellant himself, who claimed to have known Samuk for approximately a year and who had offered him a ride on the date of the raid, failed to provide even the most rudimentary details as to Samuk’s whereabouts. Indeed, during examination-in-chief, the Appellant admitted that he did not know Samuk’s whereabouts. No evidence whatsoever was forthcoming from the Appellant as to where Samuk resided. [78] In these circumstances, and in light of the paucity of particulars, it does not lie in the mouth of the Appellant to contend that the police ought to have done more to trace Samuk. In this regard, we find instructive the decision of this Court in Phiri Mailesi (Zambian) v Public Prosecutor [2013] 5 MLJ 780, where it was observed: “It is pertinent to note that the ‘Alcontara Notice’ must have sufficient particulars in the right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story or version. It must also be given at the earliest opportunity at the material time of the arrest or at least upon counsel S/N Ua7kgUpqAku2JGVajKBxug taking instruction from the accused to conduct its defence.” [79] In the premises, we are unable to discern any element of shoddiness or indifference in the investigation conducted by PW6. We find the complaint advanced by the Appellant on this score is devoid of merit. [80] Without detracting from the foregoing, we are of the considered view that the learned High Court Judge did not err in declining to draw an adverse inference against the prosecution for failing to call Samuk as a witness. [81] We further find that the prosecution’s position rests on several cogent grounds:

Efforts were undertaken to locate Samuk, but these proved unsuccessful.

During the defence stage, the Appellant contended that the drugs belonged to Samuk rather than to Marto. Be that as it may, ownership per se is not determinative of liability under s 39B(1)(a) of the Dangerous Drugs Act 1952.

The non-calling of Samuk did not create any lacuna in the prosecution’s case nor occasion any material deficiency, particularly in light of the overwhelming evidence adduced (as earlier analysed). S/N Ua7kgUpqAku2JGVajKBxug [82] It is our considered view that there has been no deliberate withholding or suppression of material evidence by the prosecution (see: Munusamy v PP [1987] 1 MLJ 492). Reverting to the facts, the Appellant was the original passenger in the Isuzu D-Max even before PW5, Elyana and Samuk entered the vehicle. He was also its owner and driver. PW5 testified that Samuk did not bring in P10, and there was no evidence during the prosecution’s case that the vehicle had diverted into the palm oil plantation at Samuk’s behest to retrieve P9, which was subsequently loaded onto the cargo bed. Even assuming, arguendo, that Samuk had been complicit in the trafficking arrangement, such involvement would not exculpate nor meaningfully diminish the culpability of the Appellant under s 39B of the DDA. [83] Accordingly, we find no basis to fault the learned Judge for declining to invoke the presumption under s 114(g) of the Evidence Act 1950. We therefore find the contention advanced by the Appellant on this issue is unsustainable. The Third Issue - The existence of common intention between Samuk, PW5 and Elyana. [84] In his petition of appeal, the Appellant contended that the learned Judge had erred in failing to consider the alleged common intention between Samuk, PW5, and Elyana to commit the offence of trafficking in dangerous drugs. S/N Ua7kgUpqAku2JGVajKBxug [85] We are, however, persuaded by the submission of the learned Deputy Public Prosecutor that this ground advanced by the Appellant is misconceived. [86] It bears emphasis that the prosecution’s charge was framed solely against the Appellant and the Second Accused, and not against Samuk, PW5, or Elyana. The learned Judge correctly held that Samuk’s flight from the scene of the incident does not establish his guilt for trafficking in drugs. Equally, the Appellant’s assertion that he did not flee, even on his own version of events, cannot be construed as evidence of his innocence. [87] We further agree with the learned Deputy Public Prosecutor that it is immaterial that the Appellant was not in possession of money at the material time. The learned Judge rightly concluded that actual possession of the drugs by the Appellant was established by the prosecution, and that he was required to rebut the statutory presumption of trafficking invoked against him, an obligation which he failed to discharge. Conclusion [88] It is a well-established principle that an appellate court will not lightly interfere with the findings of fact and credibility assessments made by a trial court, unless it is demonstrated that the court below had committed a manifest error of law or fact, or that a miscarriage of justice has occurred. Applying this principle to the present appeal, this Court had carefully S/N Ua7kgUpqAku2JGVajKBxug considered the grounds of appeal, the submissions of learned counsel, and the evidence presented at trial. [89] We are satisfied that the High Court conducted a proper and thorough evaluation of the evidence, correctly applied the relevant law, and arrived at conclusions which were both reasoned and fully supported by evidence. The Appellant has failed to establish any error of law, misapprehension of evidence, or miscarriage of justice that would warrant interference. [90] Accordingly, the Appellant’s appeal was dismissed, and the conviction and sentence imposed by the High Court were affirmed. Dated: 12 February 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia S/N Ua7kgUpqAku2JGVajKBxug LIST OF COUNSELS:

Abdul Gani Bin Zelika 2. Mohd Ridwan Bin Usman [Johari, Zelika & Amin (Tawau)] Counsel for Respondent:

TPR Shamala A/P Jaganathan [Deputy Public Prosecutor Attorney General’s Chamber] S/N Ua7kgUpqAku2JGVajKBxug CASES REFERRED TO: o PP v Lin Lian Chen [1992] 1 CLJ (Rep) 285; [1992] 2 MLJ 561. o Lee Gee Hian v PP [2021] 1 LNS 1895. o PP v Denish Mahavan [2009] 2 CLJ 209. o PP v Abdul Rahman Akif [2007] 4 CLJ 337. o Warner v Metropolitan Police Commissioner [1968] 2 All ER 356. o Ramis a/l Muniandy v PP [2001] 3 SLR 534. o Wong Swee Chin v PP [1981] 1 MLJ 212. o PP v Lin Lian Chen [1992] 2 MLJ 561. o Megat Halim Megat Omar v PP [2009] 1 CLJ 154. o Phiri Mailesi (Zambian) v Public Prosecutor [2013] 5 MLJ 780. o Munusamy v PP [1987] 1 MLJ 492.