SATIDEVANNAIR A/L RAVI v Pendakwa Raya (B-05(SH)-400-08/2025)

(a) the Appellant was the tenant and occupier of the premises;

(b) he was in sole occupation of the house at the material time, his wife and children having been away for two days prior to the raid;

(c) only one set of keys existed for the premises and these were under the Appellant's control;

(d) upon the arrival of the police, the Appellant appeared frightened, refused to cooperate, and retreated into the house; and **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

(e) the Appellant personally led the raiding party to the bedroom and retrieved the “Merry Christmas” bag from the top of the wardrobe before handing it to PW6. [24] The learned Judge held that these facts demonstrated the requisite elements of custody, control, and dominion over the bag and its contents. Consequently, the statutory presumption under section 37(d) of the DDA was engaged, giving rise to a presumption that the Appellant was in possession of, and had knowledge of, the nature of the drugs found therein. [25] The learned Judge further drew an inference of knowledge from the Appellant's conduct. Reliance was placed upon the Appellant's nervous and evasive conduct when confronted by the police, his refusal to open the grille gate, and his attempt to retreat into the house after PW6 had identified himself as a police officer. The learned Judge regarded such conduct as relevant evidence under section 8 of the Evidence Act 1950 and indicative of a guilty mind. [26] The learned Judge also considered it highly material that the Appellant knew the precise location of the bag containing the drugs and personally retrieved it from its concealed location atop the wardrobe. The Court held that such conduct constituted direct evidence of the Appellant's knowledge of the existence and whereabouts of the drugs. [27] On the element of trafficking, the learned Judge held that the act of concealing and keeping the drugs fell within the statutory **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 definition of “trafficking” under section 2 of the DDA. The Court further observed that the quantity of cannabis recovered was substantial and far exceeded any amount reasonably attributable to personal consumption. Applying the principles stated in Mohamed Yazri Minhat v PP [2003] 2 CLJ 65, the learned Judge concluded that the quantity involved supported the inference that the drugs were intended for distribution rather than personal use. Accordingly, the element of trafficking was found to have been established. [28] At the defence stage, the learned Judge considered the Appellant's explanation that the bag belonged to one Parthiban @ “Pattu”, who had allegedly left it with the Appellant for safekeeping on the night before the raid. The learned Judge rejected this explanation as lacking credibility. The Court noted that the bag was open and unzipped, rendering it implausible that the Appellant could have been unaware of its contents. The learned Judge further held that, even if the Appellant's account were accepted at its highest, the circumstances would attract the doctrine of wilful blindness, as a reasonable person would have made inquiries regarding the contents of such a bag before agreeing to keep it. [29] The learned Judge was also not persuaded by the evidence relating to Parthiban and Thviyadevi. It was observed that the Appellant had failed to furnish the investigating officer with sufficient particulars to enable any meaningful investigation into these individuals. The Court regarded this aspect of the **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 defence as an afterthought and found that the alleged involvement of Parthiban was unsupported by credible evidence. [30] Having evaluated the defence evidence in its entirety, the learned Judge found that the Appellant had failed to rebut, on a balance of probabilities, the statutory presumptions arising under section 37(d) of the DDA nor had the defence succeeded in raising any reasonable doubt against the prosecution's case. According to the learned Judge, the prosecution's evidence remained intact and unshaken. [31] The learned Judge held that the prosecution had proven its case beyond reasonable doubt. The Appellant was found to have been in possession of, and to have had knowledge of the cannabis recovered from the premises, and that his act of keeping and concealing the drugs constituted trafficking within the meaning of the DDA. Accordingly, the Appellant was convicted as charged under section 39B(1)(a) of the DDA. Issues Arising in this Appeal [32] The Appellant's challenge to the conviction may be summarised under the following three broad grounds:

(a) Error on the part of the learned Judge in finding that the act of "keeping" the drugs constituted trafficking under section 2 of the DDA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [33] The Appellant contends that the learned Judge misdirected herself in concluding that the element of trafficking had been established through direct evidence merely because the Appellant was found to be keeping the drugs in question. It is argued that the mere act of possession or keeping, without affirmative evidence demonstrating an intention to distribute or supply the drugs to another person, does not amount to "actual trafficking" within the meaning of section 2 of the DDA. [34] The Appellant submits that there was no overt act of trafficking, no evidence of any intended recipient, and no paraphernalia commonly associated with drug distribution. Accordingly, the learned Judge was said to have erred in drawing the inference that the drugs were necessarily intended for trafficking solely from the fact that they were found in the Appellant's possession and from the quantity involved.

(b) The learned Judge erred by failing to inform the defence that possession and knowledge were being established through the statutory presumption under section 37(d) of the DDA [35] The Appellant further contends that, the learned trial Judge failed to indicate that possession and knowledge were being proved through the operation of the presumption under section 37(d) of the DDA at the close of the prosecution case. According to the Appellant, this omission occasioned serious prejudice because the defence was never informed whether it was required merely to raise a reasonable doubt or whether it was required to rebut a statutory presumption on a balance of **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 probabilities. The Appellant argues that had he been informed that section 37(d) DDA was being invoked, he could have structured and presented his defence accordingly. It is therefore submitted that the failure to provide such clarification rendered the conviction unsafe.

(c) The learned Judge erred in invoking the presumption under section 37(d) DDA despite finding that possession and knowledge had been established by direct evidence [36] The Appellant's third complaint is that the learned Judge made express findings that the prosecution had adduced direct evidence establishing the Appellant's custody, control and knowledge of the drugs, yet simultaneously relied upon the statutory presumption under section 37(d) of the DDA. [37] It is argued that once the Court had found actual possession and knowledge through direct evidence, there was no necessity to invoke the presumption. The Appellant submits that the concurrent reliance on both direct evidence and the statutory presumption created uncertainty as to the legal basis of the conviction and improperly imposed upon the Appellant the heavier burden of rebutting the presumption on a balance of probabilities. This, it is contended, amounted to a material misdirection which substantially prejudiced the defence. [38] In essence, the Appellant's gravamen is that the learned Judge had conflated the concepts of actual possession, presumed possession and actual trafficking, thereby misapplying the **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 statutory presumptions under the DDA and ultimately arriving at an unsafe conviction for trafficking. Prosecution’s Contentions [39] The Prosecution/Respondent maintains that the conviction is sound in both fact and law and that the learned Judge committed no misdirection warranting appellate intervention. [40] Summarily, the Prosecution/Respondent submits that the Appellant's conduct went far beyond mere passive possession or innocent keeping of the drugs. The evidence showed that:

(i) the Appellant was the sole occupant of the house at the material time;

(v) he handed the bag containing the cannabis to the raiding officer. [41] These circumstances, coupled with the substantial quantity of cannabis recovered (265.7 grams), demonstrated custody, control, knowledge and possession of the drugs. The Prosecution/Respondent further argues that there is no legal **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 requirement for the prosecution to prove a separate overt act of trafficking, as possession coupled with the surrounding circumstances may suffice to establish trafficking within the wide definition contained in section 2 of the DDA. [42] The Prosecution/Respondent contends that the learned Judge consistently relied upon the presumption under section 37(d) of the DDA throughout the proceedings and did not fluctuate between different modes of proof. It is argued that any references in the judgment to "direct evidence" were said to be no more than surplus or verbose language and did not alter the legal basis upon which the learned Judge found possession and knowledge. The prosecution argues that the learned Judge remained clear and consistent in applying section 37(d) DDA presumption and thereafter assessing whether the Appellant had rebutted it. Accordingly, no uncertainty or legal confusion arose. [43] The Prosecution/Respondent argues that even if the learned Judge did not expressly state at the close of the prosecution's case that section 37(d) DDA was being invoked, the omission caused no miscarriage of justice. It is further argued that the Appellant was represented by counsel, called defence witnesses, advanced a full defence, and had ample opportunity to address the issue of possession and knowledge. Furthermore, the prosecution's submissions and the learned Judge's grounds of judgment made clear that section 37(d) DDA formed part of the prosecution's case. It is further argued **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 that the Appellant cannot be gainsaid to have taken by surprise and cannot demonstrate any real prejudice arising from the alleged omission. Findings and Analysis [44] At the outset, we observe that there is no dispute regarding the identity and nature of the substance recovered by the police. The evidence of the chemist, PW3, establishes beyond reasonable doubt that the exhibits analysed were cannabis weighing 265.7 grams. We likewise find no reason to disturb the learned Judge's findings regarding the integrity of the chain of custody. [45] The real issue before this Court concerns whether the prosecution succeeded in proving the element of trafficking as charged under section 39B(1)(a) of the DDA. After anxious consideration of the evidence, we are unable to agree with the conclusion reached by the learned Judge that trafficking had been established. [46] A careful reading of the grounds of judgment reveals that the learned Judge concluded that the Appellant had committed the act of trafficking because he had kept the cannabis found inside the "Merry Christmas" bag. The learned Judge further regarded the quantity of cannabis recovered as supporting the inference of trafficking. With respect, we are unable to subscribe to that approach. **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [47] The law governing actual trafficking is now well-settled. Where trafficking through direct evidence pursuant to the definition contained in section 2 of the DDA is relied upon, affirmative evidence must be adduced to establish that the act relied upon was undertaken in furtherance of the distribution, transfer, delivery or supply of the dangerous drug. In other words, there must exist an overt act of trafficking, affirmative evidence of trafficking, or direct evidence of trafficking. [48] The Federal Court in Public Prosecutor v Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129 emphasised that not every act falling within the literal wording of section 2 of the DDA automatically constitutes trafficking. That principle was subsequently applied by the Court of Appeal in Ooi Hock Kheng v Public Prosecutor [2014] 5 MLJ 585 and Lim Hock Boon v Public Prosecutor [2007] 4 CLJ 114, where it was recognised that the prosecution must prove circumstances connecting the impugned act with the process of distribution or supply of the drugs to another person. In Ooi Hock Kheng v Public Prosecutor (supra), the principal ground raised by the appellant in that appeal was that the learned Judicial Commissioner had erred when he found that there was trafficking based on s 37(d) and the act of ‘carrying’ under s 2 of the DDA. The Court of Appeal speaking through the judgment of Azahar Mohamed JCA (as he then was) explained: “[8] It cannot be disputed that at the material time, the appellant was in fact carrying the impugned Ketamine. However, the mere act of carrying is not sufficient to constitute the **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 offence of trafficking under the DDA. In other words, the act of mere carrying does not make one a trafficker under the scheme of the DDA. This is made clear from the judgment of Arifin Zakaria FCJ (as His Lordship then was) in Public Prosecutor v Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193; [2006] 2 CLJ 129). That case represents the law on this subject as we apply today. In our judgment, the learned JC had misdirected himself in that there was no appreciation that to traffic in dangerous drugs under s 2 of the DDA entails something more than passive possession. In the context of the present case, to constitute the offence of trafficking, the act of ‘carrying’ Ketamine by the appellant from one place to another was in the sense of doing so as to promote the distribution or supply of the impugned drug to someone else (see Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor [1981] 1 MLJ 64). This was never considered by the learned JC and he failed to direct his mind on this point. [9] In deciding this issue, the point to note is that the drugs involved was Ketamine, which is categorised as a Schedule 1 drug in the DDA. It is pertinent to note that the trafficking presumption under s 37(da) of the DDA does not apply to ketamine. In this regard, a close reading of the judgment of the learned JC revealed that he did not judicially appreciate that there ought to be direct evidence of trafficking or affirmative evidence of trafficking. Likewise, the learned JC also did not recognise that the amount of ketamine is only 467.65g. In Mohamad Yazri bin Minhat v Public Prosecutor [2003] 2 MLJ 241; [2003] 2 CLJ 65 this court said: **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 To summarise, the fact that the accused is transporting aquantity of drugs from one point to another does not make him a trafficker. Whether he is a trafficker in those circumstances depends on the facts and circumstances of the given case, including the quantity of the drugs and any transaction the accused proposed to enter into. [10] This brings us to the submission of learned counsel that the appellant was only in passive possession of the ketamine. Nowhere in his judgment had the learned JC made a finding to the effect that the purpose for which the appellant was in possession of the ketamine he was carrying was to transfer the possession of the said Ketamine to someone else. In our view, this is a serious non-direction which amounts to a misdirection by the learned JC warranting appellate intervention (see Gooi Loo Seng v Public Prosecutor [1993] 2 MLJ 137; [1993] 3 CLJ 1). [11] In our judgment, at the highest, this was a case of passive possession and not trafficking. The evidence shows that the appellant was in possession of the ketamine. This is an undisputable fact. The conduct of disposing the plastic bag, the acts of flight and struggle only show that the appellant had knowledge of the contents of the bag to be ketamine. The learned JC erred in that he failed to appreciate that other than an act of passive possession, there was no overt act on the part of the appellant to traffic the impugned drugs.” [Emphasis added] [49] In the present appeal, no such evidence was forthcoming. The prosecution did not adduce any evidence of any intended recipient of the drugs. There was no evidence of any **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 transaction, negotiation, arrangement for supply, delivery, transportation for distribution, customer list, packaging materials, weighing instruments, drug paraphernalia associated with sale, or any other surrounding circumstance from which trafficking could properly be inferred. The evidence relied upon by the prosecution consisted principally of the following facts:

(a) the Appellant was present in the house at the material time;

(b) he appeared frightened upon the arrival of the police;

(c) he led the raiding officers to the bedroom; and

(d) he personally retrieved the “Merry Chtistmas” bag from atop the wardrobe and handed it to PW6. [50] In our judgment, these facts undoubtedly go towards establishing custody, control, possession and knowledge of the cannabis. However, they do not establish trafficking. At its highest, the evidence demonstrates that the Appellant kept or stored the cannabis in the bedroom. With respect and as stated by plethora of authorities, mere keeping or storing of a dangerous drug cannot, without more, amount to trafficking (see: PP v Nik Ahmad Aman Nik Mansor [2002] 6 CLJ 369, PP v Mohd Farid Mohd Sukis & Anor [2002] 8 CLJ 814, Mohamad Fauzi Ridzwan & Anor [2006] 1 CLJ 478 and Arumugam Periasamy v PP [2005] 3 CLJ 685). To hold otherwise would **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 effectively obliterate the distinction between possession and trafficking which Parliament has deliberately maintained through separate offences carrying vastly different penal consequences. [51] We therefore agree with learned counsel for the Appellant that the evidence disclosed no overt act, affirmative evidence or direct evidence of trafficking as contemplated by the authorities. The quantity of cannabis recovered likewise does not cure the deficiency in the prosecution's case. [52] Whilst quantity may be a relevant evidential factor, quantity alone cannot substitute proof of trafficking where the prosecution's case is founded upon actual trafficking under section 2 of the Act. The prosecution remains under a duty to prove beyond reasonable doubt the essential element of trafficking. Suspicion, however strong, cannot take the place of proof. [53] There is, however, a further and equally significant difficulty with the conviction. The learned Judge's grounds of judgment reveal that Her Ladyship ultimately relied upon the statutory presumption under section 37(d) of the DDA in relation to possession and knowledge. However, the record discloses that at the close of the prosecution's case, the Appellant was not informed that the prosecution's case would proceed upon the basis of the statutory presumption under section 37(d) DDA. In our view, this omission occasioned serious prejudice to the Appellant. We respectfully adopt the reasoning of the Court of Appeal in Bong Sing Seng v Public Prosecutor [2023] 6 MLJ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20