Selvakumara A/L Paramasivam v Pendakwa Raya (N-05(SH)-602-12/2023)

(A) INTRODUCTION [1] The appellant was charged with an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 (‘the Act’), punishable under s 39B (2) of the Act. The framed amended charge is as follows: 35 “Bahawa kamu pada 07hb Mac 2019 jam lebih kurang 4.30 petang di tempat letak kereta belakang restoran Baskin Robbins, Seremban Gateway, Jalan Sungai Ujong, Seremban, Negeri Sembilan, telah di dapati mengedar dadah berbahaya jenis “Heroin” dan “Monoacetylmorphines” seberat 201.2 gram. Dengan itu kamu telah 40 melakukan satu kesalahan dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (234) dan boleh dihukum dibawah Seksyen 39B(2) Akta yang sama” [2] The appellant claimed trial, and at the conclusion of it, the High Court, on 45 6 December 2023, found him guilty, convicted him, and sentenced him to 30 years' imprisonment from the date of arrest and 12 strokes of rotan. Aggrieved with the High Court’s decision, the appellant filed this appeal against his conviction and sentence. 50 [3] We heard the appeal on 25 August 2025 and unanimously dismissed the appeal.

(B) PERTINENT FACTS [4] The salient facts of the case had been meticulously set out by the learned 55 High Court Judge (‘HCJ’) in his grounds of Judgment (‘grounds’), and we have, by and large, jointly adopted his findings of fact in the said grounds with necessary modifications. [5] The prosecution had called 10 witnesses and the pertinent facts 60 according to the prosecution’s narrative reveals that SP2, Inspector Mohamad Firdaus Bin Ashaari (Head of Raiding Officer/RO) received an intelligence report about a drug transaction taking place on 7 March 2019 at about 5.00 pm at Seremban Gateway, Jalan Sungai Ujong Seremban, Negeri Sembilan (‘Seremban Gateway’) which involves 65 drugs weighing 13 pounds of Heroin (goods/drugs) that cost RM53,000.00 (“Master,” “Money,” “Bait” or “Flash,” used interchangeably). [6] On the same day:

SP9, Corporal Muhammad Redza bin Hassan received an instruction from SP2 to act as an ‘undercover’ or agent provocateur (‘AP’) as provided for under s.40A of the Act to act as a buyer for the said goods, from the appellant.

SP2 had also instructed one Constable Hafiz (was called and 75 identified by SP9 in open court) to hold the said master/money.

SP2 and a team of police personnel from JSJN Seremban Contingent Headquarters, Negeri Sembilan, conducted a surveillance at the said Seremban Gateway:

About 30 minutes later, SP2 and the raid personnel saw a blue 80 car, Perodua Myvi (‘Myvi car’) with registration number JRS 2432, entered the Seremban Gateway compound and parked at the back door of the Baskin-Robbins Restaurant.

SP2 was informed by his team that there was only one Indian man in the car.

At approximately 5 pm, SP9 contacted the appellant by using a handphone provided by SP2 and SP9 instructed the appellant to park the car behind the Baskin-Robbins Restaurant, which is about 10 meters from SP9’s car (a gold-coloured Hyundai).

SP9 met with the appellant and introduced himself using the code “77”.

SP9 asked about the goods and wanted to see them for himself.

However, the appellant refused to show the goods before 95 seeing the master/money.

SP9 told the appellant to look at the ‘master’ kept in SP9’s car. The appellant went to SP9's car, sat in the back seat, and looked at the said RM53,000.00 (‘master’).

Satisfied with the amount, SP9 and the appellant got out of 100 SP9’s car and moved to the appellant’s car.

Upon arriving, the appellant opened the rear door behind the driver’s seat, and SP9 saw a green box with the word Spritzer in the back seat.

SP9 then instructed the appellant to open the box.

The appellant then tore off the edge of the box, revealing a Chinese-written newspaper. The appellant then flipped the newspaper, showing a few packages suspected to be Heroin.

SP9 then informed the appellant that he would park his car closer to the appellant’s car so it would be easier for him to 110 hand over the said money and to collect the said goods.

SP9 then walked away towards his car and removed his spectacles (as a signal to the raiding team).

After receiving this signal from SP9, SP2 instructed the raid personnel to approach the Myvi car and arrest the appellant. 115 [7] When the arrest was about to be made:

The appellant, who was standing at the right side of the car, refused to cooperate and struggled to escape.

After the appellant was successfully handcuffed, a physical 120 examination of the appellant SP2 found a set of keys from the right front pocket of the appellant’s pants, which he used to deactivate the car’s alarm.

On further inspection of the car, witnessed by the appellant himself, revealed a green box with the word Spritzer written on it, in the back 125 seat of the vehicle:

The box contains 13 translucent packets, each containing substances suspected to be Heroin.

Other incriminating items [exhibit P5(A1-A13)]. 130 [8] The appellant was arrested:

SP2 seized all the incriminating items.

After completing some documentation and marking the seized exhibits, SP2 lodged a police report (exhibit P9) and the search list was marked as exhibit P10.

The appellant, together with the exhibits, was then handed over to the Investigating Officer, Inspector Amri Syahril bin Yusuf (SP10).

The seized items (suspected of heroin) were handed to the chemist (SP3) for analysis:

SP3 analysed it to be Heroin and Monoacetylmorphines, with 140 a net weight of 201.2 grams and the chemist's report was marked as exhibit P14.

This formed the subject matter of the amended charge. [9] The learned HCJ took cognisance of section 180 of the Criminal 145 Procedure Code (‘CPC’), found that the prosecution had established a prima facie case for the said charge, and called upon the appellant to enter his defence. The learned HCJ observed: “Ini adalah keputusan diakhir kes pihak pendakwaan. Setelah mahkamah meneliti keterangan pihak pendakwaan secara maksima, mahkamah memutuskan pihak 150 pendakwaan berjaya membuktikan suatu kes prima facie seperti mana pertuduhan dibawah P2 mengedar dadah berjumlah 201.2 gm Heroin secara pembuktian terus tanpa menggunakan mana-mana anggapan mengedar. Pengedaran dibuktikan melalui sek. 2 Akta Dadah Berbahaya begitu juga dengan kawalan dadah dan pengetahuan daripada keterangan SP9 iaitu AP. Mahkamah ingin merujuk kepada 155 sek. 40A (1) Akta Dadah Merbahaya dan juga satu kes iaitu keputusan Mahkamah Persekutuan didalam Kes Hari Bhadur Ghale v PP [2012] 7 CLJ 789 iaitu atas kredibiliti and worthiness AP didalam kes ini sebagai saksi. Dengan ini tertuduh dipanggil membela diri tanpa mengguna pakai mana-mana anggapan dibawah samada dibawah sek. 37(d) ataupun (da)” 160 [10] After the three alternatives were explained to the appellant, the appellant elected to give sworn evidence. The Appellant’s Defence 165 [11] The appellant called three witnesses, and his version of the facts, briefly, is as follows:

On 6 March 2019 at 10 pm, while on duty at Changi Airport, Singapore, the appellant allegedly received a phone call from his friend Mohanraj (SD3), who was then an inmate at Kamunting Prison, Perak.

About 17 minutes later, the appellant contacted SD3 again and informed him that he would be visiting his family in Taiping, Perak.

SD3 has a friend named Kadir (also an inmate at Taiping Prison), and Kadir has a brother named Rafi.

On 7 March 2019, SD3 then asked the appellant to deliver “gula-gula” 175 from Johor to Rafi in Seremban.

SD3 provided the appellant with Rafi’s phone number.

That night, the appellant contacted Rafi, who asked him to pick up a package of “gula-gula” from a man named Mohamad at the Shell Petrol Station behind the Johor Bahru Customs checkpoint.

Rafi had taken the details of the appellant's vehicle (Myvi) to inform Mohamad to facilitate the handover of the said “gula-gula” packages.

Rafi told him that he would wait for the appellant in Seremban to pick up the said “gula-gula” to hand it over to Kadir's family. 185 [12] On 7 March 2019:

At about 12 noon, the appellant arrived at the Shell Station.

A man named Mohamad handed him a green box filled with “gula-gula” to be delivered to Rafi in Seremban.

The appellant's brother (SD4) witnessed this exchange.

Rafi later contacted the appellant and instructed him to stop at Seremban Gateway to hand over the “gula-gula” before continuing his trip to Taiping.

The appellant stopped at SD4’s house before heading to Seremban Gateway.

At about 5.17 pm, the appellant contacted Rafi at the handphone bearing number 0133500454 and told him that he would reach the promised location and would be waiting for Rafi.

The appellant arrived at Seremban Gateway at 5.20 pm.

At about 5.22 pm, the window of the appellant’s Myvi car door was 200 knocked on by someone who he said was Rafi. After that, the appellant said he went to the toilet for a while to pee and returned to the car at 5.25 pm.

He greeted Rafi and grabbed a green box that he said contained the said “gula-gula” to hand over to Rafi when he was suddenly arrested.

The appellant alleged that “Rafi” referred to by the appellant here is SP9 (denied by SP9). [13] SD2, who is the Director of Kamunting Correctional Centre, denied that an inmate can use a handphone, and that 10 pm is bedtime, when all 210 lights will be switched off and switched on again at 5.30 am:

At this juncture, we find SD2’s evidence contradicts SD3’s evidence when SD3 said he called the appellant using a handphone. We take note too that SD3 had lodged a police report, Kamunting Report No.003510/20, on 23 June 2020 (exhibit D2) to 215 confirm that he called the appellant using a handphone number 011-36140260.

When asked how he got the handphone, SD3 said the gardener gave it.

However, he admitted that he lodged the police report fifteen (15) 220 months after 7 March 2019 and he also acknowledged that he has no evidence from the Telco company to show that the handphone number used was his. Decision at the close of the defence case 225 [14] At the close of the defence case, the learned HCJ found that the appellant had failed to raise a reasonable doubt. He was found guilty as charged and sentenced to 30 years imprisonment with 12 strokes of the rotan. The learned HCJ observed that: “Mahkamah ini setelah meneliti pembelaan tertuduh dan keterangan saksi-saksi pembelaan 230 dan hujahan kedua-dua belah pihak dan meneliti keseluruhan keterangan yang dikemukakan oleh pihak pendakwaan, mahkamah ini mengambil kira keterangan Agen Provokator SP9 akan keterangan SP9 tiada sebab untuk tidak boleh di percayai mengikut S.40A(1) ADB melalui kes Hari Bahdul v PP [2012] 7 CLJ 789. Pembelaan tertuduh dan memanggil saksi pembelaan SD3 ada rekaan semata-mata apabila dibandingkan dengan keterangan SP9 yang 235 mana tertuduh membuat penjualan dadah, transaksi kepada SP9 dengan mana kotak berisi dadah telah dikoyak dan wang RM53k ditunjukkan kepada tertuduh. SD4 akui apa yang beliau ketahui tentang gula-gula atas apa yang tertuduh memberitahunya dan beliau tidak mendengar perbualan antara mamat dan tertuduh Isu-isu yang dibangkitkan oleh tertuduh melalui laporan polis D2 dan isu no telefon dan pemeriksaan telefon dan pengetahuan 240 tertuduh gagal menimbulkan sebarang keraguan munasabah bahawa tertuduh sebenarnya menjalankan urusan tranksaksi menjual beli dadah dengan SP9 dan ini merupakan pembuktian yang sangat melimpah ruah akan pengedaran dadah secara langsung dan gagal ditimbulkan keraguan munasabah begitu juga dengan tertuduh bersama SP9 melihat dadah menunjukkan wang tunai dan pembelian tersebut. Tiada langsung timbul isu salah faham akan 245 pengiriman gula-gula kepada seorang anggota PDRM iaitu SP9 atau tertuduh diperangkap. CCTV menjelaskan kesemuanya. Kamera yang dipersoalkan tidak ditunjukkan tiada menimbulkan apa-apa isu dan kaitan. Dengan ini pihak pendakwaan berjaya membuktikan kesnya tanpa sebarang keraguan munasabah bahawa tertuduh mempunyai milikan kawalan dan pengetahuan dan melakukan transaksi pengedaran dadah secara terus terang dengan 250 seorang AP iaitu SP9. Dengan ini tertuduh didapati bersalah seperti mana pertuduhan keatasnya”.

(C) MAIN GROUNDS OF APPEAL [15] There were four main grounds of appeal canvassed before us, where the 255 learned HCJ had supposedly misdirected himself as follows (briefly):

The CCTV does not show the Gold Hyundai used by SP9, and the CCTV footage was not produced.

(ii) The SIM Card and the phone used by Code 77, which is SP9, were not produced in evidence, although the phone record was presented in 260 evidence.

(iii) The flash money was not produced.

(iv) That the learned HCJ did not give sufficient consideration to the police report of Mohanraj. 265

(D) OUR ANALYSIS AND FINDINGS

THE CCTV DOES NOT SHOW THE GOLD HYUNDAI USED BY SP9, AND THE CCTV FOOTAGE WAS NOT PRODUCED. [16] The learned counsel submitted that the learned HCJ erred:

When he referred to the CCTV footage (exhibit ID6) and found it to be neutral evidence.

However, the CCTV footage did not show the presence of the gold Hyundai car throughout the recording.

The respondent’s own witness SP4, the building manager responsible 275 for the CCTV, confirmed there were 96 CCTV cameras inside and outside the building, all functioning well on the relevant date.

It is highly questionable why the learned HCJ did not scrutinise the fact that, despite 96 cameras, only footage from one camera was used.

Such footage is crucial to confirm whether the appellant went to the gold 280 Hyundai car and met SP9 and Constable Hafiz for the alleged drug transaction under Section 2 of the Act.

SP9’s testimony was supported by the discovery of drugs in the appellant’s car by SP2 when upon reviewing SP9’s testimony, SP9 claimed the appellant went to SP9’s gold Hyundai car for a drug 285 transaction. [17] In support, the appellant cited:

The Court of Appeal in See Kek Chuan v PP [2016] 6 CLJ 98, which observed the importance of CCTV footage in verifying the prosecution’s 290 version. The non-production of CCTV footage amounts to withholding or suppressing evidence, and if produced, would be unfavourable to the prosecution, thus invoking the adverse presumption under s 114(g) of the Evidence Act 1950 (‘EA’).

In applying this argument, the appellant argued that the prosecution 295 deliberately did not produce other relevant CCTV footage, as it would show the appellant went to the toilet, not to the gold Hyundai car for a drug transaction as alleged. Therefore, the failure to produce this material evidence justifies invoking the adverse inference under s114(g) EA against the respondent.

The learned HCJ accepted the testimony of police witnesses, especially SP2 and SP9, because they were considered to have no personal interest in the case and no reason to fabricate their stories.

However, the learned counsel argued that it does not require the court to always accept police testimonies as prima facie admissible without 305 exception. It depends on the facts and conditions that exist at the material time.

Alluding this Court to Kesavan Krishnan lwn. PP & Satu lagi Rayuan [2015] 6 CLJ 177 that held, just because a witness is a policeman, it does not automatically mean his evidence should be given more weight 310 than that of the accused. Nor does it mean the court should be less cautious in evaluating it. Therefore, the learned HCJ did not carefully examine the evidence of SP2 and SP9 on their accuracy and credibility to decide whether they were credible or not. 315 [18] In refuting the appellant’s arguments, the learned Deputy Public Prosecutor (‘DPP’) submitted, the learned HCJ made findings that:

The alleged inconsistencies or discrepancies in evidence were considered by the learned HCJ before dismissing them as immaterial, 320 and that these discrepancies do not throw doubt on the veracity of the prosecution witnesses, especially SP2 and SP9 testimonies, nor do they raise any reasonable doubt.

The evidence presented during the trial shows that the appellant’s position is to deal with the drugs found in a Myvi vehicle with registration 325 number JRS 2432.

The testimonies of prosecution witnesses, namely the raiding and arrest officer namely SP2 and SP9 (AP) were not challenged and can be relied on to prove possession of the dangerous drugs

The prosecution argued that the testimony of these witnesses was still 330 not challenged, even though the appellant had provided its defence statement. [19] We find that it is not disputed that the respondent relied on the evidence of SP9 as the primary witness. SP9 a Police Corporal who acted as an 335 Agent Provocateur (AP) pursuant to s.40A(1) of the Act. SP9 disguised himself as buying 13 pounds of heroin from the appellant, where SP9 contacted the appellant using a mobile phone and introduced himself with the call code ‘77’. All the movements of the appellant and SP9 were shown through CCTV footage belonging to Seremban Gateway Mall at 340 the scene where the car containing drugs belonging to the appellant was parked.

19.1 The green Spritzer box (exhibit P6A) containing the drugs in this case was clearly found in a blue Myvi vehicle with registration number JRS 345 2432 registered under the appellant’s name and driven by him to the said Seremban Gateway. We find the appellant did not deny this fact in his defence. In the case of Tong Peng Hong v. PP [1955) 1 LNS 165 it was held: “…that if something be found, for example in a bag which the accused 350 was carrying or in a box to which the accused hold the key it is extremely reasonable to suppose, unless the accused produce some satisfactory evidence to the contrary, that he know all about it. Similarly in the present case. 355 In the present case, we find that the accused did not deny that the blue Myvi belongs to him, he has the keys to disarm the car and the said drugs were found in his car, therefore it is extremely reasonable to suppose, unless the accused produce some satisfactory evidence to the contrary, that he knows all about it. 360 [20] Concerning the credibility of SP9's testimony as an agent provocateur (AP). We refer to the specific legal provisions relating to the testimony given by an AP in section 40A of the Act, which provides: “Section 40A. Evidence of agent provocateur admissible.

Notwithstanding any rule of law or the provisions of this Act or any other written law to the contrary, no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or abetted the commission of an offence by any person under this Act if the attempt to abet or abetment was for the sole 370 purpose of securing evidence against such person.

Notwithstanding any rule of law or this Act or any other written law to the contrary, and that the agent provocateur is a police officer whatever his rank or any officer of customs, any statement, whether oral or in writing made to an agent provocateur by any person who subsequently 375 is charged with an offence under this Act shall be admissible as evidence at his trial.” [21] Section 40A of the Act states that evidence from an AP is admissible in court and cannot be excluded simply because it was obtained through 380 unfair or improper means:

The law confirms that such evidence is acceptable, even if other laws suggest otherwise.

An AP can fully present the story of their dealings with the accused, and any statements made to the AP by the accused are admissible.

However, the presumption that an AP’s evidence is credible can be challenged.

It is the responsibility of the defence to provide sufficient evidence to convince the court that the AP’s testimony is not trustworthy. 390 21.1 We have evaluated the entire evidence of SP9, and we find that the defence has failed to provide sufficient evidence to convince this court that the AP’s testimony is not trustworthy. There is no reason for us to doubt and reject the testimony of SP9 in carrying out his duties as a policeman and an AP based on the following authorities: 395 -Md Zainudin Raujan v. PP [2013] 4 CLJ 21, the Federal Court held that: “[55] PW5 was a police witness. The learned trial judge found him to be a credible witness. The prosecution's case indeed rested solely on the evidence of PW5. However, under the law, there is no 400 requirement for his evidence to be corroborated. The learned trial judge believed PW5 and, as such, his evidence was sufficient to establish the case for the prosecution. Any requirement for PW5's evidence to be corroborated will conflict with s. 134 of the Evidence Act 1950, which provides that no particular number of witnesses shall in any 405 case be required for proof of any fact (see Balachandran v. PP [2005] 1 CLJ 85).” [emphasis is ours] -Wan Mohd Azman Hassan v. PP [2010] 4 CLJ 529, the Federal Court held as follows: 410 “Agent Provocateur “[8] The use of agent provocateurs, or undercover or police spies, is now a common method utilised by the police in flushing out and ultimately apprehending drug traffickers. It must be remembered that such covert activities of these drug traffickers are carried out with a high 415 degree of secrecy that, without using this technique of surveillance and investigation, it may be impossible for anti-drugs law enforcers to penetrate this nefarious underworld activity and identify who are the perpetrators. [9] In a typical police undercover operation scenario (as happened in 420 this case), the police would receive information from their informer of a drug trafficking activity. An agent provocateur, normally himself a police officer, will then be assigned to undertake what is called a” sting operation”. The agent provocateur will get in touch with the informer. The informer will then arrange for an introduction and meeting between 425 the agent provocateur, (who will play the role of a drug-buyer) and the drug trafficker. The informer will take no further active role and normally disappear. Negotiations will then take place between the agent provocateur and the drug trafficker where the amount of drugs to be supplied, its price and place of delivery will be discussed and agreed 430 upon. The agent provocateur himself thus takes an active role in the commission of the offence. Both parties become willing participants in that offence. This is what is meant by the phrase 'to abet the commission of the offence' as found in s. 40A (1) of the Act. The agent provocateur's role is to uncover the offence and gather evidence to be later given at 435 the trial against the trafficker. This, as discussed later in this judgment, is, however, not an entrapment that gives rise to a legitimate defence. [10] An agent provocateur may thus be defined as one who provokes or suggests the commission of an offence to another person, hoping that the latter will go along with his suggestion so that the other person may 440 be convicted of the offence the agent provocateur suggested. [11] The evidence of an agent provocateur is, however, not that of an accomplice's and as such requires no corroboration (see Teja Singh & Mohamed Nasir v. PP [1949] CLJU 96; [1949] 1 LNS 96; also Goh Lai Wak v. PP [1994] 1 SLR 748). In that case, Spencer Wilkinson 445 J makes the following distinction between an agent provocateur and an accomplice by referring to this passage from Emperor v. Chaturbhuj Sahu 1 LR 38 Cal. 96: [emphasis is ours] A person who makes himself an agent for the prosecution with the purpose of discovering and disclosing the commission of an offence, 450 either before associating with wrong-doers or before the actual perpetration of the offence, is not an accomplice but a spy, detective or decoy whose evidence does not require corroboration, though the weight to be attached to it depends on the character of each individual witness in each case. But a person who is associated with an offence 455 with a criminal design and extends no aid to the prosecution till after its commission is an accomplice requiring corroboration. [12] As for the creditworthiness of an agent provocateur as a witness Spencer-Wilkinson J in Teja Singh made the following remarks: It appears from the extract above quoted that the learned author of 460 Roscoe's Criminal Evidence classed agents provocateur in the same category as spies, informers and detectives. I do not doubt that there may be witnesses in any of these categories who may be wholly unworthy of credit, but in my view, the credit of any such witness depends upon the facts of each particular case and not upon the 465 particular label which can be attached to him. [13] This observation of the creditworthiness of an agent provocateur is now enshrined in s. 40A (1) of the Act, which now provides a presumption of creditworthiness. [14] This presumption of being a creditworthy witness is, of 470 course, rebuttable. It falls upon the defence then to adduce sufficient evidence for the court to conclude that the evidence of an agent provocateur is unworthy of credit. (See PP v. Han Kong Juan & Ors [1983] 1 CLJ 245; [1983] CLJ (Rep) 773 HC) [emphasis is ours]. 475 [15] Under s. 40A of the Act, the evidence of the agent provocateur cannot be excluded in the exercise of judicial discretion (see Evidence Practice and Procedure, 3rd edn. by Augustine Paul). Otherwise, admissible evidence such as this one under s. 40A of the Act does not become inadmissible merely because it had been 480 improperly or unfairly obtained. Section 40A (2) of the Act affirms this admission notwithstanding any other laws, written or otherwise, to the contrary. He may thus relate the full story of what happened in his negotiations with the drug seller, and any statements made by the latter to him shall be admissible in 485 evidence. [emphasis is ours] ... [19] It was submitted that an entrapment by SP3 had occurred. Learned counsel stated that since such evidence of entrapment is highly prejudicial, it is incumbent upon the trial court to do a “balancing 490 exercise” before it can act on that prejudicial evidence. The balancing exercise requires the trial court to determine whether the prejudicial effect of the entrapment evidence outweighs its probative value. If the answer is affirmative, the trial court cannot act on it because it violates the principles of fairness. A misdirection had thus occurred in the trial. 495 ... [27] In any event, it is for the appellant to prove that he committed this offence as a result of an entrapment. This can only be determined from the facts to be evaluated by the trial court. In other words, it is a question of fact as there was no finding of facts on this issue by the trial court the 500 issue of entrapment as a defence does not arise in this case. On this point alone, it demolishes the first argument raised by learned counsel for the appellant. For the defence to operate at all, the appellant needed to show that he was actually an “unwary innocent” who would not, but for the entrapment, have committed this offence. The facts, however, 505 show that the appellant was a person with an opposite disposition, ie, that of an “unwary criminal” who readily participated in this offence. In this case, at worst, SP3's action can only be described as soliciting the appellant to supply the drugs. There was no entrapment as such. ... 510 [31] In the case of an agent provocateur's evidence, however, the statutory approval for the admission of such evidence is governed by s. 40A of the Act is indisputable. The need for admission of an agent provocateur's evidence has been alluded to earlier in this judgment. The special provision as found in s. Section 40A of the Act is provided to 515 address this very need. The law, too, is silent on the need to subject such evidence to a balancing exercise. [32] Learned counsel of the appellant urged this court to apply the balancing exercise requirement in the interest of fairness. But the principle of fairness cuts both ways. In the fight against the drug 520 menace, Parliament has deemed it fit that such evidence of an agent provocateur be admissible without any restrictions. The trial judge is no longer vested with the discretion to exclude such evidence. The court is only to interpret legislation and not to add new elements, especially when the words in statutes are clear and unambiguous. 525 [33] There is thus no further need to subject that evidence to any balancing exercise as proposed by learned counsel in his submission. The contention that this omission is a misdirection by a learned trial judge, therefore, cannot be substantiated. [34] In this appeal, there had been a concurrent finding of facts by both 530 the trial court and the Court of Appeal regarding the appellant being in direct possession of the drugs upon his arrest. That finding cannot now be disturbed. It was also the findings of both courts below that the so-called “2nd transaction” was part of and formed a continuation of the “1st transaction” for the sale and purchase of the drugs in which the 535 appellant took an active part. Although there was no negotiation between the appellant and SP3 under the “2nd transaction”, in our view, this does not mean that the appellant was not involved in the trafficking of those drugs. Negotiations were completed by the appellant and SP3 during the “1st transaction”, although delivery of the drugs took place 540 nine days later. It is therefore not wrong for the learned trial judge to also consider the “1st transaction” and found that the appellant participated in the trafficking of the drugs. Taken together, there was in fact only one transaction, arising from a single negotiation for the sale of the drug, in which the appellant actively participated.” 545 [22] According to section 40A above, the testimony of an AP is admissible in court and cannot be excluded simply because it was obtained through unfair or improper means. The AP can fully present their account of dealings with the accused and any statements made to the AP are also 550 admissible. However, the presumption the AP is a credible (creditworthy) witness capable of being challenged, it is the responsibility of the defense to provide sufficient evidence to convince the court that the AP’s testimony is unworthy of credit. In Mohd Dan Abdul Hamid v. PP [2019] 1 LNS 808, the Court of Appeal held: 555 "In his capacity as an agent provocateur, PW1's credibility as a witness is not open to question, unless his evidence was inherently incredible or that he had been proved to be lying on any material part of the case. Section 40A(1) of the DOA is relevant …” 560 We find the defense has failed to challenge the credit worthiness of the AP’s (SP9) evidence or his evidence was inherently incredible or that he has been proved to be lying. We find the AP’s evidence even if uncorroborated, it is admissible and his evidence regarding the dealing of buying and selling the said drugs can be accepted. 565 [23] However, despite the clear provision of section 40A of the Act regarding an AP, we observed that the learned HCJ went further and find that the evidence of SP9 was corroborated by the evidence of SP2. We agree that the evidence of SP2 was very clear when he said that, as soon as 570 his team saw the signal from SP9 (removing his glasses), SP2 instructed his team to raid the appellant’s car, the accused was standing beside the said car. And during the raid, the appellant struggled and refused to cooperate until he was arrested and handcuffed. We agree with the finding of the learned HCJ as this scene can be seen in the CCTV 575 footage [P21B] which shows that a number of police personnel involved were at the scene. [24] We find the learned HCJ also find that after SP2 checked the appellant’s car, SP2 found a green 'Spritzer' box [P6] with tear marks and inside 580 were 13 transparent plastic packets each containing a substance suspected to be heroin. A black bag was also found with the appellant’s identity card, driving licence and two mobile phones. SP2 seized the items of this case, and a search list was issued. All these items were seized and in the custody of SP2 until they were handed over to the 585 investigating officer, SP10, who later sent them to the Chemist Department. [25] The appellant argued that the prosecution deliberately did not produce other relevant CCTV footage and invoke section 114(g) EA against the 590 respondent for failure to produce the CCTV that can show the appellant went to the toilet and was not at the gold Hyundai car for a drug transaction as alleged. We however disagree with this submission. We find that the learned HCJ had meticulously referred to the CCTV recording including the recording time. The accused did not deny that 595 the said Myvi car is his and that car was parked behind Seremban Gateway at 17.20 hours. At 17:22:18, the accused identified a man in black as Rafi. After 30 seconds he exited from his car claiming he went to the toilet. At 17:23:29, the accused said Rafi left his Myvi car. At 17.26 the accused said he went back to his car. The learned HCJ find 600 that there is only a gap of two (2) minutes for the accused left his car to go to the toilet and then went back again to his Myvi car before he was arrested. The learned HCJ observed that all the above happened within 2 minutes which is too short a time to perform all those activities. 605

25.1 We too find that 2 minutes is too short time for the accused to go to the toilet when there is no evidence regarding the distance to the toilet or that he was running to the toilet neither was there any evidence that he was running back to the Myvi car. We find that the learned HCJ was correct for not invoking the adverse inference against the prosecution 610 under section 114(g) EA. We refer to the case of Shanmugasundram Perumal & Anors [2023] CLJU 272; [2023] 1 LNS 272, where the COA held: “[57] Likewise in the present case, the thrust of the prosecution case to substantiate the charge is on the sale of the drugs resulting from the 615 negotiation. There is ample evidence to prove this fact on the evidence of PW4, PW6, and also PWS. The telephone records and sim cards of the handphones, in this case, if produced, are only corroborative evidence which without them would not affect the proof of the sale of the drug by the evidence of PW4, PW6, and PW5. As such, the telephone 620 records and sim cards are not material to the case for the invocation of section 114(g). Besides, the fact that the events did occur after the telephone calls were made, which were the meeting between the 1st accused and PW4 at Old Time White Coffee on 30.10.2015 and the meeting near the Petronas Station for the 1st accused and 2nd accused 625 to count the monies on 1.2.2016 support the fact that the telephone calls were made. We are also of the view that further investigation into the telephone confiscated by the police would also not be material to the prosecution case on the same basis. [58] In the circumstances, the trial judge was correct for not invoking the 630 adverse inference against the prosecution under section 114(g) of the Evidence Act 1950.” [26] SP10 (IO) confirmed that the blue Myvi car driven by the appellant was registered in the appellant’s name (P22B) and SP10 also identified and 635 confirmed the seized items received from SP2, namely the wallet (P6C

(2)) with the identity card and his driving licence of the appellant, 13 translucent plastics containing drugs and a Chinese-written newspaper (P5A(1 to 13). When cross-examined by the defence counsel, SP10 disagreed that the appellant at the time of arrest told him these were 640 “gula-gula” and he did not know about the drugs in the said box. We find that there was no misdirection by the learned HCJ when he accepted the evidence of SP2 and SP9 and the CCTV recording and concluded that the element of possession, both physical and mental, had been established by the prosecution. This is a finding of fact by the learned 645 trial judge. The law is well settled that the appellate court would be slow to disturb findings of fact unless the trial court had clearly and wrongly evaluated the evidence, or the finding is plainly wrong, or unsupported by evidence. See Tan Kim Ho & Anor v Public Prosecutor [2009] 3 MLJ 151; [2009] 3 CLJ 236 (FC). We do not find any such infirmity here.

(ii) THE SIM CARD AND THE PHONE USED BY CODE 77, WHICH IS SP9, WERE NOT PRODUCED IN EVIDENCE, ALTHOUGH THE PHONE RECORD WAS PRESENTED IN EVIDENCE. 655 [27] The learned counsel for the accused submitted that:

SP9 testified that he, together with SP2, had met with a 'source' in Kajang, where the 'source' had informed them that an Indian man in a Perodua Myvi vehicle was going to make a drug transaction at Seremban Gateway, but this “source” was not called as a witness. The SIM card 660 and the phone used by SP9 were not produced in evidence.

The HCJ erred in examining that the number 0133500454 belongs to SP9 because during the trial, the respondent did not produce a mobile phone belonging to SP9, which was purportedly used to contact the appellant using code 77.

The SIM card of the mobile phone was not produced to prove that it was the 0133500454 number, and the testimony by the service provider of the 0133500454 phone number is to confirm that it belongs to SP9 or the Royal Malaysian Police.

This failure to produce the material evidence creates a crucial gap in the 670 respondent’s case. [28] In the present case, we find that the testimonies of SP9 (AP) and SP2 established that there was a prior arrangement between SP9 and the accused for the delivery of the said drugs. The sequence of events at 675 the Seremban Gateway supported the prosecution’s case. In the circumstances, we are of the opinion that there was no need for additional corroborative evidence, such as the phone, the recordings of the telephone conversation or sim card to prove the arrangement between SP9 and the appellant. The evidence presented was sufficient 680 on its own and there is no gap in the prosecution’s case, and neither can s114(g) EA be invoked against the respondent’s case. We refer to the case of Idris bin Hairun v. PP [2009] CLJU 660; [2009] 1 LNS 660, the Court of Appeal held: "It is a consistent testimony that there was a prior arrangement 685 between SP6 and the appellant for the delivery of the offending drugs and it had crystalised. In the circumstances, we are of the opinion that the evidence led by the prosecution in respect of the telephone conversation is well supported by the sequence of events that took place at the scene of the crime. There is no need 690 therefore for any further corroborative evidence of any recording of any conversation between SP6 and the appellant nor is there any need to produce the telephone bills of SP6 or the appellant as corroborative evidence" (emphasize is ours) 695

(iii) THE FLASH MONEY WAS NOT PRODUCED. [29] The learned counsel argued that the non-production of the flash money in court as evidence is fatal to the prosecution case and refer to the 700 evidence of SP9 during examination in chief as follows: “Ya, saya terima arahan dari Insp Firdaus dan dalam taklimat tersebut, Insp. Firdaus telah menerangkan pada semua anggota tentang maklumat dapat dari sumber di Kajang. Didalam taklimat Insp Firdaus mengarahkan saya sebagai UC untuk membuat hubungan dengan 705 tertuduh untuk jual beli dadah. Dibantu oleh Konstabel Hafiz sebagai pemegang master. Master ialah call sign bagi duit. UC ialah under cover. Sebagai UC, tugasan saya ialah berhubung dengan tertuduh untul transaksi jual beli dadah. ... 710 Salain itu, peranan saya sebagai UC, saya akan bersama Konst. Hafiz duduk didalam satu kenderaan dan akan menggunakan kod 77 untuk memulakan setiap perbualan dan untuk memastikan orang yang saya berhubung itu adalah tertuduh. Konst. Hafiz yang saya sebutkan tadi ialah pemegang Master. Pemegang Master bermaksud pemegang duit 715 yang dibawa berjumlah RM53,000.00. …” The learned counsel submitted that Constable Hafiz was not called to give evidence even though he plays an important part in the narration of facts by the respondent. The learned counsel further stated that evidence 720 of the accused as follows: “S: Ada atau tidak kamu berjumpa dengan Konstabel Hafiz di perkarangan tempat tangkapan dan ada atau tidak kamu memasuki ke dalam kereta Hafiz? J: Saya tidak kenal Hafiz dan saya tidak pernah masuk kereta beliau. 725 S: Ada kamu masuk ke dalam kereta Hyundai di perkarangan tempat tangkapan? J: Tiada. S: Adakah kamu ditunjukkan wang untuk jual beli dadah? J: Tidak. 730 S: Terangkan berkenaan dengan alegasi, wang RM53,000.00, adakah benar? J: Saya tidak pernah melihat atau mengira RM53,000. S: Adakah kereta Hyundai terletak di sebelah kereta kamu? J: Tidak” 735 [30] The appellant submitted that the production of “flash money” (wang tunjuk) in this case was crucial to prove the existence of a drug sale transaction. The absence of this flash money, according to the appellant, makes it highly unlikely that any sale transaction occurred as alleged by 740 the prosecution. The appellant find support in the Court of Appeal case in Kamalahassan a/l Latchimanan v. Pendakwa Raya [2008] 3 MLJ 810, held: “[21] Additional to this doubt was the allegation by SP5 that he flashed RM2,000 to establish the authenticity of his desire to buy drugs. Yet SP7, 745 the investigating officer had no knowledge of this money. No explanation was given by SP4 and SP5 why the investigating officer was not informed of this highly important piece of evidence, for trap cases of this nature. In any entrapment case set up by the Anti-Corruption Agency, not too dissimilar to cases of this nature, the availability of the marked notes in 750 the safe keeping of the investigating officer would certainly not be taken lightly. The irresistible conclusion that we could arrive at, out of this gap in the chain of evidence, was that there probably never was a negotiation. The additional evidence of SP8 rebutting SP5's evidence in relation to the time factor required for the negotiation made short shrift of that alleged 755 incident. Since the prosecution never invoked the presumption of trafficking in its case but had confidently depended on direct evidence to establish trafficking ie the alleged negotiation, but its very existence now having been rejected, there thus was total failure in establishing such an essential ingredient. That being so the prosecution could not be said to 760 have established a prima facie case as per the charge.” [31] The appellant argues that the “flash money” (RM53,000.00) and the testimony of Constable Hafiz are crucial evidence to prove the alleged drug sale transaction. The failure of the prosecution to present the flash 765 money and call Constable Hafiz as a witness breaks the chain of evidence and creates reasonable doubt about whether the drug transaction occurred. The appellant claims this omission deprived him of a fair trial, as he could not cross-examine Hafiz to seek the truth. Therefore, the appellant contends that the adverse presumption under 770 section 114(g) of the Evidence Act should be applied against the prosecution, and that the drug sale at Seremban Gateway did not happen as alleged by the prosecution In the case of Faiz Khairudin v PP (2011) 5 CLJ 509, (2011) 1 LNS 228, on the non-production of the money, the Court of Appeal held: 775 “[38] The money of RM17,000 was shown to the appellant by PW9 on 10 April 2001. The money was given by PW12 to PW9. PW9's evidence was corroborated by PW11. Learned counsel for the appellant submitted that the non-production of the money had left a serious gap in the narrative of the prosecution's case. The failure of the prosecution to produce the 780 money would result in the invocation of adverse inference under s. 114(g) of the Evidence Act 1950 against the prosecution. [39] With respect, we were unable to agree with the contention of learned counsel for the appellant. In our view, it was unnecessary for the prosecution to produce and tender the money in the trial. The failure of 785 the prosecution to produce the money did not prejudice the appellant as the money was not the subject-matter of the offence. The non-production of the money had not caused any gap to the prosecution's case.” [32] Based on the above authority, with respect we are unable to agree with 790 the contention of the learned counsel for the accused that the prosecution’s failure to produce and tender the flash money or the cash allegedly shown during the drugs transaction was fatal to the prosecution’s case. We find that it was unnecessary for the prosecution to produce the money as evidence, since the money was not the subject- 795 matter of the offence. The absence of the flash money and not calling Constable Hafiz, did not prejudice the appellant or create a gap in the prosecution’s case and neither can s 114(g) EA be invoked against the respondent. After evaluating the evidence presented, we find that it clearly showed the act of buying and selling drugs. We find that when 800 the appellant asked to see the “money” and we find this demonstrate the accused control and knowledge of the drugs as well as his involvement in the sale and this a “sale” as provided for under section 2 of the Act was completed. The appellant did not need to receive the said “money physically”; it was sufficient that he handed over the drugs in exchange 805 for the agreed price. [33] We find that the act of surrendering the said drugs, specifically, the appellant tearing open the box containing the drugs, clearly demonstrated that a buying and selling transaction has taken place; there is no need for 810 the money to be taken by the appellant. The Federal Court in PP v Sa'ari bin Jusoh [2007] 2 MLJ 409 held that, proving that the sale and purchase of drugs do not require show money or bait money. In the present case, the money of RM53,000.00 was shown to the appellant. The fact that there was a discussion between the appellant and AP(SP9) 815 on the sale of the drugs was sufficient as the knowledge, control and custody of the appellant over the drugs and the sale by the appellant under the terms of trafficking under s.2 of the Act, especially when there was only one accused in the car. In PP v Sa'ari bin Jusoh (supra), it was held that so long as the delivery is for money, which the delivery in 820 this case was, even though the funds for which the goods are delivered have not passed to the seller. Hence, in the present case, there is direct evidence of trafficking by the appellant without resorting to any presumption of law on possession. The Federal Court in Ibrahim Mohamad & Anor. v. PP [2011] 4 CLJ 113, held that it is trite law that 825 possession is an essential ingredient in the charge of trafficking.

(iv) THE LEARNED HCJ DID NOT GIVE SUFFICIENT CONSIDERATION TO THE POLICE REPORT OF MOHANRAJ. [34] The learned counsel submitted that the learned HCJ, after reviewing the 830 evidence of Mohanraj a/l Mahendran (SD3), the Maxis phone records of calls between the appellant, D2, Rafi, and the investigating officer (SP10), concluded that the appellant’s defence was essentially that he was helping his friend SD3, who in turn was helping another friend named Kadir (both detained at Kamunting Detention Centre), to send 835 “gula-gula” to Kadir’s family. The defence narrative was that the appellant was merely delivering a package as a favour and not involved in drug trafficking. During the trail. SP9 gave evidence that the number that he used to contact the accused was 013-33500454 and SD3’s police report (D2) corroborated SD3’s evidence.

34.1 We are unable to accept the contention of the learned counsel above as we can see the learned HCJ reminded himself that there were several names raised by the appellant during the trial and investigation as follows:

Mentioning the names is a notice to the investigation to investigate their alleged involvement (Alcontara Notice).

Meanwhile, a person named Kadir, who is said to be an inmate at the same place, however the appellant did not question their witness, SD2 Director of the Kamunting Correctional Centre, 850 whether the existence of Kadir's was correct or otherwise.

As for Mohamad, who handed over the box in Johor Bharu, the appellant did not have Mohamad's details or at least his mobile phone number.

Meanwhile, Rafi's is said to be SP9, who only introduces himself as 855 code ‘77’.

He had asked SP9 to see the money before showing the drugs to SP9 and then took SP9 to the car and tore up a small box for SP9 to see that the packets contain drugs. We find all the above could not assist the testimony of the appellant. 860 [35] We are of the considered view that:

35.1 The learned HCJ did consider the evidence of SD3 and, at para 47, when he found that it was rather strange when, on 6 March 2019, for SD3, who was at the Detention Centre, to have called the appellant to take a 865 package containing “gula-gula” to be given to Rafi, who is Kadir's brother in Seremban.

35.2 After SD3 gave the number of a person named Rafi, and when the appellant called Rafi, he supposedly told the appellant to pick the package from Mohamad, who was waiting at the Shell Petrol Station at the Johor 870 Bharu Customs Checkpoint.

35.3 According to the appellant, Rafi asked the type of his car (Myvi), to enable Rafi to tell Mohamad so that he could identify the appellant’s car. Rafi will wait for the appellant in Seremban, collect the “gula-gula” package from them, and then give it to Kadir's family. 875 35.4 We find it hard to believe and is unreasonable that:

The appellant only took the “gula-gula” from Mohamad, whom the appellant does not know, has not met, and does not have Mohamad's phone number to enable the appellant to call him directly.

However, SD3 gave the appellant Rafi’s phone number even though 880 the appellant had not met or recognised him.

Rafi would then take the package of “gula-gula” from the appellant in Seremban, and Rafi would hand it over to Kadir's family.

The appellant also did not ask what brand or type of “gula-gula” that were not available in Seremban, and why it has to be sent all the way 885 from Johor Bharu.

The appellant failed to verify before accepting any request for such an order.

Strangely, Mohamad, Kadir, SD3 or Rafi could have posted the said “gula-gula” as a mode of delivery, which is timely and efficient.

The appellant was really involved with sale of the drugs, because he dealt with a friend like SD3 (an inmate) to send a package that did not belong to SD3 but to his friend in the same prison named Kadir.

SD3 lodged a police report on 23 June 2020, approximately 1 year and 6 months later. We find the appellant’s version of the facts, though 895 supported by SD3 and SD3’s police report (for the incident on 6 March 2019), to be far-fetched and insufficient to raise a reasonable doubt.

Why was the process of handing over a box supposedly containing only “gula-gula” was made so precise and detailed that every movement received from Mohamad was informed to Rafi and SD3.

It was also observed as to why SD3 was told the location where the box would be handed over to Rafi, as if SD3 would be the backbone of the delivery of the box, even though Rafi was supposedly Kadir’s brother and the person whom Kadir instructed to receive them. In fact, SD3 only conveyed that Kadir asked for help. 905

The appellant was incredibly careful to make sure that the movement of the box, which supposedly only contained” gula-gula”, was known to everyone involved and suddenly as if he has no concern to leave the car, allegedly to go to the toilet, when at all times the car and the box were fully monitored and looked after, for a box of supposed “gula- 910 gula”. It is too far-fetched to be believed and is unreasonable. [36] On the totality of the evidence, we find that the appellant failed to raise a reasonable doubt in the respondent’s case:

The appellant’s excuse to go to the toilet was only to avoid being 915 caught up in the prosecution's evidence by a person who is considered a reliable witness under s.40A DDA, namely SP9.

SD2's evidence about SD3's use of the handphone to the appellant is contrary to SD3's evidence and neither can SD3 confirmed that that was his handphone number.

SD2, admitted that there was a detainee named Mohanraj a/I Mahendran (SD3).

However, SD2 denied that detainees could use handphones, especially at night, because the lights would be turned off from 10.00 pm to 5.30 am. Families and detainees may only use landline phones with 925 permission, and the only contact with the prisoners is that the family will meet the prisoners at the detention centre face-to-face.

SD3 denied that he wanted to help the appellant and that the police report made 15 months after the appellant’s arrest was to fabricate a story about the phone call that did not happen, which SD3 claimed he 930 was afraid to lodge a police report earlier. Which explanation to our mind is unreasonable. [37] All things considered from the evidential materials before this Court and from the foregoing paragraphs, we find sufficient evidence that the seized drugs were in the possession of the appellant for trafficking. The direct 935 testimonies of witnesses SP9, SP2, and SP10 are adequate to support the prosecution's narrative. We find there is not an iota of evidence to prove that SP9 and SP2 had any malicious motive to charge or trap the appellant. In the absence of such evidence, the testimonies of SP9 and SP2 are justified to be accepted by this court. 940 [38] In Mirza Murtala v. PP [2010] 4 CLJ 150, the COA observed: “[19] The other aspect of the defence story that needs to be addressed is the suggestion by the 1st accused that his arrest together with the 2nd accused and the finding of the incriminating drugs was a frame up. Having been put 945 in a situation where the court was presented with two divergent versions of the episode leading to the arrest of the two accused and recovery of the offending drugs in question, the trial judge had apparently adopted the principle laid down by Thomson CJ in PP v. Muhammed Ali [1962] MLJ

In that case, the learned Chief Justice said: 950 When a police witness says something that is not inherently impossible, his evidence must, in the first instance, be accepted. If his evidence is contradicted by other evidence or is shaken by cross-examination, then it becomes the business of the magistrate to decide whether it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether 955 police witness or not, who gives evidence on affirmation, should normally be accepted. [20] Our appraisal of the aforesaid approach taken by the trial judge is further fortified by the following passage found in his judgment that reads: “Mahkamah ini merasakan yang OKT1 juga telah berbohong dalam pembelaannya. Dia seolah-olah memberitahu bahawa walaupun SP6 mengenali 'Man' dan mengetahui 960 tentang beg bersama dadah kepunyaan 'Man' tetapi mash juga memaksa, memerangkap dan menangkap OKT1 dan OKT2. Mahkamah ini tiada dapat menerima tentang berlakunya penganiayaan ke atas kedua-dua tertuduh ini oleh SP6. Ini kerana tidak ada sebab untuk SP6 dan SP7 berbuat demikian, lagi pun pihak-pihak dalam kes ini baru pertama kali berjumpa dan sudah semesti tiada sebarang latar belakang 965 dendam atau perselisihan antara mereka. [21] We agree with the learned trial judge and we further of the view that in fact there is no evidence whatsoever at all of any reason or motive for the prosecution's witnesses aforesaid to frame up the 1st accused nor the 2nd accused.” 970 [39] 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 1478; [2017] 1 LNS 1478, the COA held that: 975 “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 absolutely no reason to lie about him. PW4 and PW5 were police 980 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 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 985 honestly and conscientiously. Section 114 illustration (e) of the Evidence Act 1950 in this regard provides that the court may presume 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 990 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: It is well settled that, prima facie, the public servants must be assumed to act 995 honestly and conscientiously. It would, therefore, be basically wrong, without other cogent grounds to consider them as untrustworthy witnesses in respect of 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 1000 official witnesses. The presumption that a person acts honestly 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 PW5 as untrustworthy 1005 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 LNS 4, the COA held: 1010 “[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 was nothing to suggest that the police might have had any motive to frame the appellant. In the absence of any such motive 1015 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 established the fact that the appellant was holding the white plastic bag in his hand when apprehended. 1020 [94] ...The frame-up theory advanced by the appellant vaporised into 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 1025 bedroom.”

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 1030 burden is always upon the appellant to prove their 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 1035 manufacture evidence and to testify 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.” [emphasize is ours] 1040 [40] We hold in the foregoing circumstances that the testimonies of both SP9 and SP2 were grounded upon the factual seizure of the impugned drugs from the back seat of the blue Myvi car driven by the appellant when the police arrested him. In our view, SP9 and SP2 were mere police officers 1045 executing their duties with no reason to fabricate and manufacture evidence against the appellant in the manner as contended by the appellant and his witnesses. There was equally nothing inherently improbable in their evidence. 1050

(E) CONCLUSIONS [41] Having considered all issues before this Court, we find no appealable error in the learned HCJ's decision. We did not find any reason to interfere with those findings, and we confirmed the findings of fact made by the learned HCJ leading to the conviction of the appellant on the amended charge. We 1055 concur with the learned HCJ that considering all the evidence, the prosecution had successfully proven their case beyond a reasonable doubt. Hence, we find that the conviction is safe. In the circumstances, we unanimously affirmed the conviction and the sentence. As far as the sentence is concerned, it is already the minimum. The Appellant’s appeal 1060 is dismissed, and the conviction and sentence by the learned HCJ are hereby affirmed. Dated: 21 November 2025 1065 HAYATUL AKMAL ABDUL AZIZ JUDGE COURT OF APPEAL 1070 Counsels: For the appellant: 1075 Selvam Shanmugam, together with Donald Selvam, Messrs Selvam Shanmugam & Partners For the respondent: Muhamad Arif Aizuddin bin Masrom 1080