Shairul Fikin Bin Mohd Jaib (MC-82D-8-05/2023)

The accused, who is a member of the armed force, was charged as follows:- “Bahawa kamu pada 16.7.2019 jam lebih kurang 09.40 malam di ST 879 Jalan Seri Jeram 3 Melaka Taman Seri Jeram, Masjid Tanah dalam daerah Alor Gajah dalam negeri Melaka, telah didapati ada dalam kawalan kamu (42) bungkusan plastik mengandungi 33.60 liter cecair Mitragynine, yang mana disenaraikan di dalam Jadual Pertama dan Jadual Ketiga (Bahan Psokotropik) Akta Racun 1952. Oleh yang demikian kamu telah melakukan kesalahan di bawah seksyen 30(3) Akta Racun 1952 yang boleh dihukum di bawah seksyen 30(5) Akta yang sama.”

The accused was charged for the offence that took place on 16.7.2019, which was governed by the old section 30(5) of the Poisons Act 1952 (Revised 1989). Under this provision, upon conviction, one shall be liable to a fine not exceeding RM10,000.00 or to imprisonment for a term not exceeding 4 years or both. It is noted that an amendment (Act A1666) was made to the said section 30(5) of the same Act, which imposes a different penalty, upon conviction, one shall be liable to a fine not exceeding RM100,000.00 or to imprisonment for a term not exceeding 5 years or both, that was in force from 1.1.2023. As such, the sentence to be considered by this court shall follow the pre-amendment law which is applicable to the current case.

The accused pleaded not guilty to the said charge and claimed trial. The prosecution has called six witnesses as follows:- i. PW1: L/Kpl Mohd Faiz, the storekeeper of PDRM; ii. PW2: Pn Siti Zubaidah, the chemist; iii. PW3: D/Kpl Khairul Amrie, the photographer; iv. PW4: Sjn Sazairul Azwan, the officer collecting the chemical report from the Chemistry Department; v. PW5: SI Yazid, the raiding officer; and vi. PW6: Sjn Mohd Hakim, the investigating officer. Prosecution’s case

The prosecution’s case in brief is as follows. On 16.7.2019 at approximately 2140hrs, SI Yazid (PW5), along with a police team from BSNJD Alor Gajah, during an Ops Tapis operation, detained one (1) male (“the accused”) in front of a premise located at ST 879, Jalan Seri Jeram 3, Taman Seri Jeram, Masjid Tanah, Melaka. PW5 identified himself as a police officer by showing his police identification card to the accused. PW5 then asked for the accused's identification.

Following this, PW5 conducted a body search on the accused but did not find any illegal item. PW5 and his raiding team proceeded to the premise, guided by the accused. After conducting a search inside the premise in the presence of the accused, PW5 discovered a pot on the kitchen floor. Upon inspecting the aluminium pot, PW5 found inside it forty-two (42) plastic packages containing a liquid suspected to be ketum liquid [P5(1-42)].

Subsequently, PW5 seized all the evidence and arrested the accused for possessing the psychotropic poison. At 12.45am on 17/7/2019, Sjn Mohd Hakim (PW6), the investigating officer, was handed the seized evidence by PW5.

On 17.7.2019, at approximately 7.30pm, PW6 along with photographer D/Kpl Khairul Amrie (PW3), went to the scene to draft a sketch plan (P19) and take photographs of the scene (P10).

On 18.7.2019, at around 3.30pm, PW6 retrieved the seized evidence from a locked steel cabinet in his office to send it to the Chemistry Department in Melaka. The chemical analysis report (P8) prepared by the chemist, Puan Siti Zubaidah (PW2) confirmed that the liquid seized was a psychotropic poison, Mitragynine totaling 33.60 litres. Findings at the end of the Prosecution’s Case Prosecution’s submission

It is necessary for the prosecution to prove the following elements of the offence charged against the accused, as submitted by the prosecution, that:- i. Mitragynine is a poison listed under the First and Third Schedules (Psychotropic Substances) of the Poisons Act 1952; and ii. That the accused had possession (custody or control) and knowledge of the poison that was seized. Defence counsel’s submission

There are four issues advanced by the defence counsel as follows:- i. No caution administered to the accused before PW5 brought the accused into the premise; ii. Shoddy investigation by the investigating officer (PW6); iii. Whether the evidence (liquid containing Mitragynine) was in the possession, control and/or custody of the accused (actus reus); and iv. Whether the accused had knowledge of the liquid containing Mitragynine (mens rea). Issue (i): No caution administered to the accused before PW5 brought the accused into the premise

The defence counsel argued that after the raiding officer (PW5) arrested the accused in front of the premise at ST 879, Jalan Seri Jeram 3, Taman Seri Jeram, 78300, Masjid Tanah, Melaka (“the premise"), as per PW5's testimony during examination-in-chief on

28.4.2021, PW5 did not administer a caution statement and did not explain the implications of any answers given after such caution to the accused, before PW5 brought the accused into the premise. During examination-in-chief, PW5 stated that he asked the accused if he had boiled ketum liquid, to which the accused replied affirmatively. However, PW5 did not record this question anywhere, including in his police report.

The defence submitted that PW5, as the raiding officer, failed to give the caution statement to the accused after arresting him in front of the premise and the failure of administering caution statement to the accused prejudiced the accused since the statement given by the accused, which amounted to an admission made to PW5 after the accused was arrested in front of the premise. The defence raised the issue that any admission given by the accused after his arrest could not be used as evidence in this court unless it is admitted by the accused during the full trial.

This court found from PW5’s testimony that the accused led PW5 to the kitchen area of the premise after responding to PW5’s question about whether he had boiled ketum liquid. There was only one route from the front of the premise to the kitchen. In connection with the first issue, this court agreed with the defence that there was no evidence that a caution was administered to the accused based on PW5's testimony.

It is important to note that the act of the accused in subsequently leading the police team to the premise and pointing to the pot (P4) on the kitchen floor when asked if he had any psychotropic substance in the premise is admissible under section 8 of the Evidence Act 1950, even though a caution was not administered after his arrest (Suthagar a/l Segaran v Public Prosecutor [2023] MLJU 673, CoA). The information that led to the discovery of the psychotropic substance came from the accused's statement to PW5 at the scene.

In gist, it was PW5's questioning of the accused at the scene that led to the discovery of the psychotropic substance. What is relevant is the admissibility of this information. In the court's considered view, it is well-established that information admissible under section 27 of the Evidence Act 1950 includes an accused’s statement or act, such as pointing out the location, which leads directly to the discovery of a fact. For such information to be admissible, the prosecution is not required to prove the voluntariness of the information. The evidence that an accused person led a police officer to the place where the subject matter i.e. psychotropic substance in the offence was hidden is admissible as conduct under section 8 of the Evidence Act, regardless of whether any statement by the accused falls within section 27 of the Evidence Act (Amathevelli a/p P Ramasamy v Public Prosecutor [2009] 3 CLJ 109, FC).

Although there was no evidence showing that the accused gave a statement to PW5 when asked where the psychotropic substance was, the accused pointed to the pot on the kitchen floor. Before admitting it under section 27 of the Evidence Act 1950, this court must assess whether it serves the interests of justice and fairness, considering both the prosecution's and defence's legitimate interests. Section 27 permits the admission of information from the accused that directly leads to the discovery of a fact, but it is not meant to admit a full confession. It only applies to the specific information that results in a discovery, which confirms the accuracy of the information (Liang Weng Heng v PP [2014] 2 MLJ 855, CoA). In the instant case, this court found that the information given by the accused to PW5 led to the discovery of a psychotropic substance hidden in a pot in the kitchen, appearing like food if not closely examined, as shown in the photographs [P11(a-c)], making it reliable.

This court had considered that the pot (P4) contained packets that one would not easily recognize as containing psychotropic substance, as these packets could be mistaken for food being cooked, if viewed by someone entering the premise and kitchen normally (Siew Yoke Keong v Public Prosecutor, [2013] 3 MLJ 630, FC). In other words, if the accused had not pointed it out, PW5 would not have been able to retrieve the psychotropic substance. In this context, the accused’s act of pointing amounted to information that related distinctly to the discovery of a fact and was admissible under section 27 of the Evidence Act 1950.

On the whole, this Court disagreed with the defence and found that the accused’s conduct in pointing to the pot on the kitchen floor, which led to the discovery of the psychotropic substance, is relevant and admissible under sections 27 and 8 of the Evidence Act 1950. Issue (ii): Shoddy investigation by the investigating officer (PW6)

The defence counsel raised a second issue, which was that the investigation conducted by the investigating officer (PW6) was shoddy and incomplete because PW6 failed to provide clear testimony regarding the number of occupants in the premise where the case item, a liquid containing Mitragynine, was found. During the trial, PW6 repeatedly responded with "tidak ingat" and "tidak pasti" when asked about the occupants of the premise. It was arged that, PW6 had indeed failed to present a complete investigation result regarding the number of occupants in the premise. This created a gap in the case and led to uncertainty about who else had access and control over the case item found in the premise besides the accused.

Furthermore, in PW6’s testimony, there was no investigation result concerning the number of occupants in the premise, whether through confirmation from neighbours nearby or the accused’s family members. During the re-examination of PW6, PW6 testified that he did not call anyone else besides the accused when conducting the investigation in this case. The defence also highlighted that PW6 could not explain how many rooms were in the premise, even though he had been to the crime scene himself and prepared a sketch plan of the scene (P19).

As a matter of common sense, both a husband and wife are normally staying in the same premise. However, in the instant case, it was found that the accused (husband), with his own knowledge, kept a plastic-wrapped pot on the kitchen floor. This court found it was reasonable to exclude the wife from suspicion when she was not present at the premise at the material time. Simply put, it was the accused who specifically led PW5 to the pot containing the psychotropic substance, wrapped in plastic and resembling food.

In the considered view of this court, at this stage, it cannot be argued that the investigation was insufficient simply because both the husband and wife had equal access to the premise. The prosecution is not required to prove that the accused had absolute and exclusive possession of the psychotropic substance, as it is well-established that possession can be joint (PP v Mahir Affandi Mohamad [2024] CLJU 1416, HC). Nevertheless, it should not automatically be alleged that the husband and wife both had joint possession of the psychotropic substance. That, it would imply no proper investigation was conducted to hold all those residing in the premise accountable, merely because they had equal access to the premise.

This court found that PW6 had conducted a satisfactory investigation by charging only the accused for the offence. The court is of the considered view that, at the time of the police raid, only the accused was present at the premise and the wife was not there when the police found the psychotropic substance in the pot on the kitchen floor. This, there was no gap in the prosecution’s case in the absence of the wife’s testimony as long as the prosecution successfully established the element of possession, regardless of the wife’s evidence (Roichan Maasum v. PP [2022] 1 LNS 129, CoA).

Another important point was that when the police party and the accused were in the kitchen area, no one else came to check what was happening, even though noises were heard, which would have been expected if someone else had been present in the premise. This strongly indicated that the accused was alone on the premise at that time. Further, when the accused was stopped, questioned and led PW5 to the kitchen, it was clear that he had no opportunity to contact his wife or anyone else in the premise to hide if they were indeed present.

In short, this court found no merit in the allegation of shoddy investigation on the part of PW6 (PP v Saripuddin Sappe & Anor [2023] 1 LNS 1614, HC). It is noted, PW6 honestly stated that he could not recall the exact number of rooms because the case occurred in year 2019. Also, PW6 did not remember who opened the door when he arrived with the photographer (PW3) to take photos and sketch the plan (P19). However, PW6's method of investigation was found satisfactory as PW6 successfully investigated in the following: - a) PW6 obtained the electricity bill (P15) under the accused’s name and found the accused was familiar with how the psychotropic substance was stored in the plastic-wrapped pot, which resembled food gravy; b) No other psychotropic substance was found in any other location in the premise; c) Importantly, there was no information about other occupants at the scene when the accused was arrested by PW5; and d) No one else came out to check what was happening when the police entered the premise and made noise. This further supports the conclusion that no other individuals were present at the time. Issues (iii) & (iv): actus reus and mens rea possession

It cannot be denied that, these issues (iii) and (iv) in regards to the knowledge of the accused of the liquid containing Mitragynine (mens rea) and whether the said liquid containing Mitragynine was in the the possession, control and/or custody of the accused (actus reus) were inextricably intertwined and shall be discussed together.

The prosecution submitted that the accused had actual possession of the psychotropic substance that was seized. The prosecution further argued that, while others may have had access to the premise, that this possibility did not provide sufficient grounds to suggest that anyone else had access to the kitchen area, (Pendakwa Raya v Mohd Quszairy bin Rosli [2022] MLJU 2254, HC). Based on the testimony of PW5 during cross-examination, although there was a possibility that the accused's wife resided in the premise, this did not negate the accused's exclusive possession because only the accused was present during the arrest and the electricity bill of the premise (P15) was registered under the accused’s name.

The defence, on the other hand, argued that the prosecution could not rely on the presumption under section 30(4) of the Poisons Act 1952, as the prosecution failed to prove that the Mitragynine liquid was under the accused’s custody and control. The defence submitted the following reasons: the accused was arrested outside the premise and the door to the premises was unlocked during the raid; the prosecution's witnesses failed to conclusively prove that no other individuals, apart from the accused, PW5 and the raiding team, were present at the time of the raid; and. the witnesses also failed to establish that the accused was the sole occupant of the premise. Therefore, the prosecution failed to prove that the accused was the only person with access to the seized psychotropic substance

During cross-examination, the defence counsel had suggested that no Mitragynine in the form of plant leaves (daun ketum) was found during the arrest. However, this did not refute the fact that the liquid seized in the 42 wrapped packages [P5(1-42)] were confirmed to contain the psychotropic substance of Mitragynine. Subsequently, the defence also pointed out that no inspections were conducted in other rooms of the premise, but PW5 clarified during re-examination by the prosecution, that in ketum related cases, the focus was typically on the kitchen area where the ketum substance is brewed or stored, hence there was no necessity to search inside the rooms at the premise. In this context, the prosecution submitted that the accused had actual possession, custody and control over the psychotropic substance and in the event this court does not find the accused to have actual possession, that the prosecution argued that the presumption of possession under section 30(4) of the Poisons Act 1952 applies, as the accused had possession of the premise and control over its access and content of the psychotropic substance.

It is firmly established that, to constitute possession, it is necessary to prove the following elements. The first element, which was the accused had knowledge of the psychotropic substance; and the second element, that the accused had some form of control or custody over the psychotropic substance (Public Prosecutor v. Muhammad Nasir bin Shaharudin [1994] 2 MLJ 576, HC). Meanwhile, this court must emphasize that custody and control must be exclusive, meaning only the accused had control or custody over the 42 wrapped packages of psychotropic substance in question [P5(1-42)]. Going through the submissions, the accused must be in a position to deal with the psychotropic substance as if it belonged to him, specifically regarding the pot (P4) found on the kitchen floor; and the accused must have the intention of dealing with it as if it were his own, should an occasion arise (Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237,

This court reminds itself that intention is a matter of fact that can only be inferred from the surrounding circumstances and whether the surrounding circumstances demonstrate such intention is a factual question in each case (Chan Pean Leon (supra)). In the instant case, no other individual was found in the premise during the police raid since nobody came out to the kitchen area in response to noise made from the police party. As alluded to, the wife was also not present at the scene when the accused was arrested and it must be concluded that she did not have custody or control over the psychotropic substance found at the kitchen floor, which were P5(1-42) appeared as a broth-like substance.

From the court’s records of proceeding, it is clear that the prosecution's evidence showed the accused led PW5 to the specific pot (P4) and displayed fear during his arrest, indicating his knowledge of the existence of the P4 and its contents. The nature of the psychotropic substance was so obvious that this court could reasonably concluded that the accused must have known what it was and had exclusive control or custody of the 42 packages of wrapped liquid in the pot. In the circumstances, this court agreed with the prosecution's evidences, which established the following: a) PW5 had testified that the accused was alone in front of the premise at the time of the arrest; b) PW5 was brought by the accused to the kitchen area after being asked whether he was brewing ketum; c) There was only one path leading from the front of the premise to the kitchen; d) The kitchen door was closed and locked when the accused guided PW5 and the raiding team to the kitchen, indicating no one else had access to the kitchen before the accused was detained; e) No other individuals were present in the premise during the arrest; f) Upon reaching the kitchen, PW5 found the pot (P4) on the kitchen floor containing 42 wrapped packages filled with Mitragynine liquid; and g) The premise’s electricity bill (P15) had been registered under the accused’s name.

It is noteworthy that these facts support the conclusion that the accused had exclusive custody and control over the ketum liquid and knew that the wrapped packages inside the pot (P4) contained Mitragynine [P5(1-42)]. Keeping in mind, the prosecution was not required to prove that there was a sale or processing of ketum or that the accused was seen brewing it in order to establish possession (Public Prosecutor v. Irman Hadi bin Abd Manan & Anor [2022] MLJU 211, Magistrates' Court). This court found that since the prosecution proved the accused had custody and control over the ketum liquid, this court accepted the prosecution’s invocation of section 30(4) of the Poisons Act 1952 to infer knowledge on the part of the accused. Under that provision, knowledge is a rebuttable presumption, and the burden now shifts to the accused to rebut it (Teo Kian Chun and Other Appeals v Public Prosecutor [2021] 1 MLJ 675, CoA). Prima Facie case

As such, this court undertook a maximum evaluation of the prosecution's evidences in determining whether to call on the accused to present a defence, considering the credibility of the prosecution witnesses and the inferences drawn from the evidences (section 173(f) of the Criminal Procedure Code, section 180 of the Criminal Procedure Code; PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457, FC). In my considered view, the evidence were sufficient to prove that the accused had care and exclusive management of the specific pot (P4), which the accused himself led the police to, and appeared to contain broth-like liquid on the kitchen floor.

To recapitulate, no other individual was present in the premise when the accused was arrested and the premise belonged to the accused based on the electricity bill under the accused’s name (P15). Regarding the said electricity bill and the accused being arrested in front of the premise, followed by him leading the police party to the kitchen to look for the specific pot (P4), it was evident that he was familiar with the place. This was sufficient for PW6 to conclude that the accused had custody, control, management and exclusive possession of the premise and the pot (P4) containing psychotropic substance. Since the prosecution successfully established custody and control over the wrapped packages [P5(1- 42)], the statutory presumption of knowledge under section 30(4) of the Poisons Act 1952 has been invoked against the accused. Therefore, this court found that the prosecution has established a prima facie case against the accused. Defence’s case

The accused (DW1) was called to enter his defence and elected to give evidence under oath. Another defence witness i.e. the wife of the accused (DW2) also testified for the defence.

As argued by the Counsel for the Accused, the crux of the defence rested upon the fact that the accused was not the sole occupant of the premise where the incident occurred at that material time. The accused is a public servant serving as military personnel and he was married to a woman named Siti Suhaiza (DW2) that they had been blessed with two children. He is currently living with his wife and children in the same premise where the incident occurred as stipulated in the charge. The narrative of his defence is as follows: a) On 16.7.2019, at around 6 pm, the accused went out to Masjid Tanah town to buy some items and to his mother-in-law’s house in Bukit Cina. Then, at around 9 pm, the accused returned home. The accused parked his motorcycle at the neighbour’s house because his own house was undergoing renovation; b) Shortly after, four police officers arrived and arrested him. The police officers conducted a body search on the accused and informed him that they wanted to conduct a search inside the premise; c) The police then brought the accused inside the premise. At that time, the house door was closed but not locked. The police pushed open the grill door and took the accused inside the premise, leading him to the kitchen area; d) Upon reaching the kitchen, the accused saw a pot containing a liquid suspected to be ketum liquid, as confirmed by the police; e) The accused also stated that his wife was at home at that time. When the police brought him inside, he called for his wife, who was sleeping in the bedroom. His wife then came out of the bedroom and went to the kitchen together with them; f) The accused informed the police that he had no knowledge of the suspected ketum liquid when questioned by them. The police then instructed the accused to change his clothes and took him to the police vehicle before bringing him to Masjid Tanah Police Station. The accused stated that the police did not take his wife to the police station; g) Additionally, the accused informed that the premise was jointly owned by him and his wife, as evidenced by Exhibit D21, which was the Sale and Purchase Agreement dated 18.12.2013 for the premise; h) The accused also mentioned that his younger brother, Shairul Arifin bin Mohd Jaib, was also a resident of the premise and occupied the room adjacent to the kitchen. The accused stated that before he left the house on the evening of 16.7.2019, his brother was still at home, but when the police arrested him, his brother was not present; and i) The accused further stated that he, his wife and his brother each had keys to access the premise.

Subsequently, the sworn evidence given by DW2, the wife of the accused, as argued by the defence counsel, was summarized as follows: - a) On 16.7.2019, at around 6 pm, DW2’s husband i.e. the accused had informed DW2 that he wanted to go out to the shop, but DW2 did not accompany him; b) After her husband left, DW2 remained in their bedroom and went to sleep; c) At around 9:40 pm, DW2 heard noises coming from the living room, followed by her husband calling out to her. DW2 then came out of the bedroom and saw that there were police officers inside the premise along with her husband and she followed them to the kitchen area; d) While in the kitchen, DW2 saw the police pointing to a pot containing a liquid suspected to be ketum liquid. DW2 stated that she only became aware of the suspected ketum liquid after being informed by the police; e) DW2 confirmed that there were four police officers present at the premise on the night of the incident; f) DW2 also stated that her brother-in-law i.e. the accused’s younger brother, Shairul Arifin, also lived in the premise. She explained that her brother-in-law was a lorry driver and would usually stay at the premise for about 3 to 4 days at a time; and g) DW2 further confirmed that her husband, her brother-in-law, and she herself each had keys to the premise. Findings at the end of the Defence’s Case 38. The counsel on behalf of the accused again advanced the same issues as submitted at the end of the Prosecution’s case, including, inter alia, the actus reus and mens rea of the accused’s possession of the pot containing ketum liquid, as well as the alleged shoddy investigation conducted by the investigating officer (PW6). Apart from that, it is also worth deliberating on whether the evidence given by the accused and his wife (DW2) was consistent with each other.

The defence counsel had pointed out that during the investigation of this case, the accused had informed the police that he had just returned from the shop. When the questions posed by the accused’s counsel to the prosecution witnesses were based on this existing information, however, in his testimony in court, DW1 stated that he had gone to Pekan Masjid Tanah and to his mother-in-law’s house in Bukit Cina. The defence counsel argued that this was merely a minor discrepancy. The material fact was the accused’s testimony that he had just returned home before being arrested by the police. This was duly noted by the court, which agreed with the defence counsel that there were no material discrepancies regarding where the accused had been prior to his return home and the undisputed fact remained that the accused had just arrived home before being detained by the police in front of his house.

Now, this court remains careful in examining each piece of evidence, as it is crucial to assess the weight assigned to specific evidence within the particular circumstances, such as the contradictions between the statements given by the accused and his wife (DW2) during the trial.

At the end of the defence’s case, this court reviewed all the evidence presented at both the end of the prosecution’s case and the end of defence’s case for a maximum evaluation (Tengku Adnan bin Tengku Mansor v PP [2022] 1 MLJ 93, CoA). PW5, one of the raiding officers, testified that, according to the accused, his wife (DW2) was staying at the house at the material time but denied that she was present during the raid.

This court found that DW2’s testimony stated she was at home with the accused and had gone to sleep after the accused left the premise. DW2 only woke up when the accused called her. This version of the defence is significantly different from the testimony of the prosecution witnesses, who stated that, at the time of the arrest, only the accused was present at the premise, as submitted by the prosecution.

Based on this trial court’s observations, DW2’s evidence was inconsistent. At one point, she stated that the accused was eating while she was sleeping; at another, she stated that the accused had already left the house when she went to sleep. Additionally, DW2 claimed that the police only came to her house once. This evidence was not credible, as the investigating officer (PW6) along with the photographer (PW3) went to the premise on 17.07.2017 at approximately 7:30 pm to take photographs of the scene. This was not the only occasion the police were present at the premise.

The prosecution also submitted that it is important to note that DW2 is the wife of the accused, making her an interested witness. DW2 had a vested interest in supporting the defence case and the court must exercise caution when evaluating her evidence. This court concurs with the prosecution’s position.

This is because the only person supporting the accused’s defence is his wife, DW2. However, considering that the accused and DW2 are husband and wife, DW2 is indeed an interested witness. Hence, her testimony must be treated with caution. While there is no legal requirement for an interested witness’s evidence to be corroborated for it to be accepted by the court, the fact that DW2 is the accused’s wife, combined with the absence of any other evidence to support her claims, renders her testimony a mere allegation (Faizal Toed v PP, CoA).

As an interested witness, DW2’s evidence requires corroboration, which is absent in this case. Notably, DW2 only recalled the police coming to the house once, which is significant as it suggests that she was present at the house during only one visit by the police. However, as previously mentioned, PW6 and PW3 returned to the house to take scene photographs. Additionally, DW2 testified that she and her children continued living in the house at that material time and even until now.

This court also noted that the accused’s wife (DW2) made considerable efforts to align her testimony with the accused’s version of events. However, one crucial point to consider is her claim that the raiding officers did not allow her to use her phone, did not allow her to record the incident and seized her phone. If this were true, DW2’s phone should have been taken along with her at any search list and the accused should have been brought to the police station, which was not the case here.

Furthermore, the defence highlighted an important detail regarding the raid, by claiming that the police allegedly asked the accused to change his clothes before being taken to the police vehicle and transported to the Masjid Tanah Police Station. During the trial, the accused and DW2 claimed that the accused changed from shorts to long pants. However, the defence counsel never raised this issue during cross-examination of PW5, nor did PW5 mention anything about it, as PW5 maintained that the accused’s wife was not at the scene during the incident. Given this, DW2’s testimony is difficult to accept as supporting evidence for the accused’s claim that she was present at the scene. If this claim were crucial to the defence case in order to put the wife was at the scene at that material time with the accused to depict such detail, it should have been put to the prosecution witnesses during cross-examination. The failure to do so by the defence counsel in the instant case makes it an afterthought (Norman bin Ismail v PP [2014] 2 MLJ 311, CoA).

The accused’s wife (DW2) also attempted to raise doubt that the psychotropic substances (ketum liquid) could have belonged to the accused’s brother-in-law, who resided in the room adjacent to the kitchen, by stating that before the incident, the brother-in-law was at the house. However, DW2 also mentioned during cross-examination that the brother-in-law would frequently stop by the house, as he was a lorry driver and as such he would often come and stay for a few days, then leave for two to three days, before returning again. Yet, during re-examination by the defence counsel, she changed her statement that more like three to four days, then after three to four days, the brother-in-law would come again.

Meanwhile, in the accused’s oral evidence before the trial court, he explicitly stated before he left the house, his wife (DW2) had returned home and my brother, Shairul Arifin was also at home. But when he was arrested, his brother was no longer there and he did not know where his brother had gone. The accused was unable to secure the attendance of his brother (Shairul Arifin) to establish that he was not the sole occupier of the house at the time of the raid. Apart from Shairul Arifin, the defence counsel also argued that the accused’s wife was present at the scene during the raid. Therefore, the prosecution should have charged both the accused and his wife together and proven their common intention in having custody and control over the psychotropic substances.

Thus, the defence contended that the failure to charge the accused’s wife alongside him created a reasonable doubt regarding the accused’s exclusive possession of the psychotropic substances. In other words, the defence questioned the accused’s wife who was not prosecuted alongside him when it suggested that both DW2 and the accused had joint possession of the premise, as evidenced by D21 (the sales and purchase agreement).

This court rejected the defence’s argument that DW2 and the brother-in-law also had access to the psychotropic substances. The police did not see the accused’s wife or his brother-in-law in the house during the raid. Furthermore, there was no evidence suggesting that anyone other than the accused had access to the pot containing ketum liquid at the material time. This made the assertion that DW2 and the brother-in-law had access to the ketum liquid purely speculative (Nagalingam a/l P Vellupillay v PP [2015] 3 MLJ 92, CoA). Based on the evidence adduced, the accused’s act of leading the police team to the kitchen of the premise directly and pointing out the pot (P4) on the kitchen floor when asked whether there were any psychotropic substances in the house was clearly indicative of his knowledge of the existence of the broth- like substance inside the pot. This occurred without the police needing to conduct a thorough search of the premise starting at living room.

Moreover, in the absence of any statutory provision to the contrary, it cannot be presumed that a wife, without any other evidence, is deemed to have care and management of the premise simply because she resides there with her husband and family. It would be a startling proposition to suggest that every member of a household should be deemed an occupier with the responsibility of knowing about any criminal activity occurring in the house, if without exercising due diligence (PP v Muhamad Nasir Shaharuddin & Anor [1994] 2 MLJ 576, HC).

If, as the defence argued, DW2, as a joint occupier and owner of the premise, should have had knowledge of the ketum liquid, there was not a single piece of evidence to establish that she had custody or control over the psychotropic substances. It is a well-established principle of law that knowledge alone is insufficient to establish possession. Based on the evidence presented, the accused was the one who led the police to the discovery of the pot containing P5(1-42), which appeared to contain a broth-like substance. This occurred without the presence of his wife at the material time.

Another obvious point to highlight is that the essence of the accused’s defence that his house was undergoing renovation at the material time, which was never put to the investigating officer (PW6) during the prosecution’s case. Instead, the accused’s claim that he parked his motorcycle at the neighbour’s house was put to only PW5, to which PW5 disagreed, stating that the photographs of the scene (P10) did not depict any ongoing renovation in front of the house. However, during the trial, the accused presented photographs [IDD22(1-2)] taken by him to show an alleged renovation in front of his house. The prosecution objected to the admissibility of these photographs, arguing that there was no evidence regarding how the photographs were taken, what type of camera was used or when they were captured. Furthermore, the photographs lacked crucial identifiers such as vehicle license plates, house addresses or any markers to confirm their authenticity, unlike P10.

This court agreed with the prosecution’s submission that the photographs, which were purportedly taken in July 2019, lacked any timestamps or details that could establish their relevance to the material time. The court also found that the essence of these photographs differed from the ideal evidentiary concept. For instance, in a typical civil accident suit, photographs of vehicle damage could be verified by both parties involved in the accident. However, in this case, the undated photographs of the alleged renovation were produced solely by the accused in an attempt to challenge the exclusivity of his possession of the ketum liquid. Additionally, the accused failed to produce the handphone that was allegedly used to take the IDD22 photographs. Initially, the accused claimed that the photographs were taken using a handphone belonging to his wife, DW2. However, when DW2 was called to testify, she never mentioned anything about the phone or the photographs to confirm their existence or provide any metadata that could display the date and time they were taken. Since the accused made no effort to dispel this lingering suspicion, he is presumed to have known and accepted the risk of this questionable defence. The failure to produce DW2’s phone to substantiate when the IDD22 photographs were taken further weakened the defence’s argument.

The defence’s claim was highly speculative, particularly because the defence did not put the renovation issue to PW6, the investigating officer, who had visited the premise to take photographs, create a sketch plan and investigate. Instead, the defence raised the issue only with PW5, the raiding officer, before the accused was remanded. The accused asserted that he took the photographs of the renovation two days “after his remand”, but such a crucial claim should have been put to PW6. This omission by the defence counsel, along with the failure to question PW6 about the alleged renovation, suggested that the defence’s claim was an afterthought. The fact that the defence’s version during the prosecution’s case was inconsistent with the version presented during the defence’s case, combined with the failure to properly present evidence regarding the renovation, further undermines the credibility of the accused’s claim.

All the evidence given by DW1 and DW2 were found to be mere afterthoughts, baseless denials and unreasonable. Reviewing the evidence in its totality, this court found that the accused has failed to rebut the statutory presumption under section 30(4) of the Poisons Act 1952 on the balance of probabilities, based on the grounds stated above. At the end of the defence’s case, this court therefore finds that the accused has failed to cast a reasonable doubt on the prosecution's case.

Conviction 59. After considering all the evidence presented throughout the proceeding, the prosecution's evidence was sufficient and successfully proved its case beyond a reasonable doubt against the accused (Mat v PP [1963] MLJ 263, ARCJ). As such, the accused is found guilty of the offences as charged under section 30(3) of the Poisons Act 1952.

Sentencing 60. This court now moves to sentencing. Before passing the sentence, the court granted each party the right to submit on any mitigating and aggravating factors, if any.

The learned counsel submitted to the court to consider several factors before imposing a fair sentence on the accused. The accused is 39 years old, married and has a wife and two young children aged 4 and 2, all of whom are financially dependent on him. Additionally, the accused is currently taking care of his chronically ill mother, who suffers from asthma, hypertension and diabetes. The accused is also a serving member of the Malaysian Armed Forces and has been in service since 24.6.2005. He is scheduled to retire on 23.6.2026, meaning he has served for 20 years in the ATM. The accused began his military career as a Prebet on 24.6.2005, was promoted to Lance Corporal on 1.1.2013, and subsequently to Corporal on 22.4.2015, which remains his current rank: - a) The learned counsel respectfully submitted a service and qualification record. This document briefly outlines the accused's background, the training he has undergone (refer to item 20 of the document if possible), and the medals he has received (refer to item 23); b) Additionally, the accused has attended several military courses, including: i. Artillery Signals Class 2 Course Series 2/2007 (27.8.2007 - 23.11.2007); ii. Basic Unarmed Combat Course Series 4/2007 (17.12.2007 - 22.2.2008); iii.

Unit Grade Dec Course Series 1/2010 (1.2.2010 -

3.2010); and iv. Artillery Signals Level 2 Course Series 3/2012 (6.8.2012 - 23.11.2012). c) Furthermore, in 2013, the accused participated in Operation Lahad Datu and was awarded the "Tugu Perwira-Perwira OP Daulat 2013", a prestigious recognition for safeguarding national security. Submitted as evidence are his Certificate of Excellent Service and several photographs showing his involvement in Operation Lahad Datu. These photographs depict him with fellow military personnel and the erected monument in recognition of his service, with his name appearing in one of the images; d) In 2022, the accused attended Combat Network Radio (CNR) Course Series 3/2022 (8.8.2022 - 19.8.2022) at the 10 Signal Squadron Brigade (PARA). Overall, the accused has attended 15 military courses, demonstrating his high commitment and professional training as a soldier; e) Based on the case facts presented before this Honourable court, the accused has fully cooperated with the police at all material times. The facts also indicated that the accused did not act aggressively when arrested by the police on the night of the incident. Additionally, he has attended every court hearing without fail. The seized evidence, a liquid containing Mitragynine (ketum liquid), was found in his house but was not in his physical possession. Moreover, there is no direct evidence proving that the accused used, consumed or distributed the illegal substance, however the court reminded the learned counsel that this is the time for mitigation on sentencing and that can be argued during the appeal later; f) The accused is a first-time offender with no prior convictions. While it is undeniable that public interest is the paramount consideration in sentencing, the accused’s personal circumstances should also be considered by this Honourable court. If convicted, he risks losing his job as a military officer, which would significantly affect his livelihood and future. A conviction would also result in the loss of his pension and service benefits, which he has earned through nearly 20 years of service to Malaysia. His wife and two children will suffer if a severe sentence is imposed; g) Therefore, the learned counsel humbly requested this Honourable court to exercise its discretion and consider placing the accused on a good behaviour bond under section 294 of the Criminal Procedure Code, given that the offence charged against him was not of a serious nature. Alternatively, the learned counsel also seeks the court’s discretion to allow the accused to perform community service instead. The accused respectfully pleaded for a non-custodial and non-fine sentence; h) Lastly, the accused did not plead guilty at the earliest available opportunity with the intention of wasting the court’s time and resources. Rather, he sincerely believed he could defend himself as he did not commit the offence. However, the accused respected the court’s decision and has learned a valuable lesson from this experience.

In this context, the prosecution submitted that an appropriate and proportionate sentence should be imposed to serve as a deterrent. The offence committed is prohibited under the law. Additionally, the prosecution acknowledges that the accused is a public servant, and as such, he is expected to maintain good conduct and integrity. Given the nature of the offence, as proven by the prosecution, he respectfully requests this Honourable court to impose a just and proportionate sentence on the accused.

Before passing the sentence on the accused, this court has taken into consideration the defence counsel's mitigation plea as well as the prosecution's submissions on aggravating factors. Based on the applicable legal principles, this court sets out the following reasons in determining the sentence for the accused: - a) The accused in this case is a first-time offender with no prior convictions (Public Prosecutor v Mohammad Zulhiznie bin Zaini [2021] 12 MLJ 780, HC). However, this is not a case that warrants excessive leniency, as the accused has served in the army for 20 years, dedicating himself to the defence of this nation, its people, and its interests through military training, deployment and combat. This commitment is evident from the certificates submitted by learned counsel; b) Despite this, the court agreed with the prosecution that the accused has set a poor example and failed to uphold the discipline expected of a member of the armed forces. As someone serving in a uniformed defence unit that requires strict discipline, he should have been able to restrain himself from engaging in the offence for which he has been charged; c) Nevertheless, this court has taken into account the impact of his conviction and sentence on his career and family, including his two young children, as highlighted earlier by the learned counsel (Public Prosecutor v Muhammad Fiqry bin Jafri & Anor [2021] 9 MLJ 915, HC). This court acknowledges learned counsel’s submission that a public servant immediately loses eligibility for a pension upon the imposition of a custodial sentence. Under the relevant provisions, his pension and other benefits would be terminated with immediate effect despite his 20 years of service in the Malaysian Armed Forces; d) Besides, this court noted that the accused cooperated with the police after the commission of the offence and attended all court hearings, despite initial delays due to alleged job-related training. However, after being warned, he adhered to the schedule set by the court; e) As the nation approaches the upcoming Hari Raya Aidilfitri (Eid al-Fitr) celebration next week, this court recognized the importance of allowing the accused to be with his family, fulfilling his responsibilities as a father by providing for and ensuring the well-being of his two children. Rather than serving a custodial sentence, it would be more appropriate for him to take responsibility outside of prison; f) After all, it is an established practice that a first-time offender like the accused should receive some mitigation in sentencing for most offences (Public Prosecutor v Mahanthiran a/l Durasamy [2007] 7 MLJ 426, HC), except in this situation where the identity of the accused as a member of the armed forces, who is expected to uphold strict discipline, had diminished the basis for such leniency; g) While this first offender principle and service to the nation serve as the mitigating factors, the extent of its impact is limited. This is due to the accused’s 20 years of service in defending the nation, particularly his recognition through the Tugu Perwira-Perwira OP Daulat 2013 award, which is a significant honor for safeguarding national security, has been taken into account by this court; and h) Given these considerations, this court decided not to impose a custodial sentence but instead to impose a higher fine based on the pre-amendment maximum penalty, which allows for a fine not exceeding RM10,000.00. An amount of RM6,000.00 is deemed appropriate, as it is a substantial penalty as a lesson for the accused while also considering the accused’s financial needs, especially with the upcoming Hari Raya Aidilfitri celebrations next week. Conclusion 64. For the foregoing reasons, this court hereby convicts the accused as charged and accordingly sentences him to a fine of RM6,000.00 or 12 months' imprisonment in default of payment thereof. Dated this 24 Mac 2025 SGD ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH PROSECUTION : DPP Pn Sharina Farhana & Tuan Fiqri Hakim THE ACCUSED : Represented by COUNSELS Mr. Mohd Afiq & Mr. Hanif Tetuan Afiq Aziz & Co., Taman Mutiara Gombak 2,