Shamugasundram A/L Perumal v Pendakwa Raya (B-05(M)-273-06/2019)

This is the appellants’ appeal against the decision of the Shah Alam High Court in convicting and sentencing all the appellants to death for the offence of trafficking in dangerous drugs, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“the DDA 1952”).

All four appellants were charged with the following charge: “Bahawa kamu bersama-sama, bagi mencapai niat bersama, pada 1.2.2016, jam lebih kurang 4.00 petang, bertempat di kawasan Jalan SM2, Sunway Batu Caves, di dalam daerah Gombak, di dalam Negeri Selangor Darul Ehsan, telah didapati mengedar dadah berbahaya jenis methamphetamine seberat 2264.2 gram. Oleh itu, kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan dihukum di bawah seksyen 39B (2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan.”

Aggrieved with the decision of the High Court, the appellants appealed separately to this Court under the following Criminal Appeal No. B-05(M)-273-06/2019, B-05(M)-274-06/2019, B-05(M)-275-05/2019, B- 05(M)-276-06/2019.

In this judgment, the appellants will be referred to as they were at the High Court which were, Vignesvaran a/l Krishnan the 1st accused, Vickneswaran a/l Sassie the 2nd accused, Sathan a/l Sekar the 3rd accused and Shanmugasundram a/l Perumal the 4th accused.

The prosecution’s case hinges on a negotiated sale of dangerous drugs and based on the evidence adduced in Court, the case for the prosecution is summarized as follows.

On 29.10.2015 at about 10 am, Lance Corporal Anbalagan a/l Vasu (PW4) received information about drug trafficking involving an Indian man known as Vicky. The informer also informed PW4 that Vicky can be contacted at the telephone number 010-2965347. PW4 then asked his informer to arrange a meeting between him and Vicky. PW4 thereafter conveyed the said information to his superior, Deputy Superintendant Police (“DSP”) Jasmirol.

Next, DSP Jasmirol instructed PW4 to be the agent provocateur in the case and to be assisted by Corporal Kamarudin bin Mohd Lattif (PW6).

On the same day, 29.10.2015, acting as an agent provocateur, PW4 made a call to Vicky and informed him of his intention to meet Vicky. This was agreed by Vicky who told PW4 to meet him at Old Town White Coffee, Batu Caves, Selangor at 2 pm the next day, 30.10.2015. The said meeting was informed to DSP Jasmirol by PW4, who then instructed a police team headed by DSP Mohd Husni bin Manaf (PW5) to be at the said meeting place and to arrest the drug trafficker.

PW4 and PW6 then went to the meeting place in PW6’s car, whilst the police team was in separate cars and took their position outside the Old Town White Coffee. They reached there at about 2 pm. PW4 and PW6 then went toward the Old Town White Coffee and waited for Vicky. A few minutes later, PW4 saw a Proton Wira car come and parked in front of the shop with 2 Indian males in the car. Then one of them alighted the car and walked to PW4. He then asked PW4 whether PW4 is Navin from Ipoh to which PW4 answered in the affirmative. In response, PW4 asked the Indian man whether he is Vicky and was confirmed by him. PW4 then introduced PW6 as his partner and thereafter Vicky sat with them and informed PW4 “Abang, you punya kawan ada bagitahu you sedang cari stok syabu dan tempat you ambil sekarang ada masalah dan harga mahal”. PW4 answered “ya” and Vicky responded “kalau nak stok syabu dengan harga murah boleh bagitahu saya.”

Next, PW4 said “kawan saya ada bagitahu barang you memang cantik dan harga pun murah”. Vicky then replied that the price is subject to the quantity bought and that he can offer RM62,000 per kilo. PW4 then informed Vicky that he used to buy above 3 kilos as he has many customers including in Indonesia. Thereafter, Vicky said “kalau macam tu saya boleh bagi harga special untuk you iaitu RM60,000 sekilo.” PW4 then informed Vicky that he will take orders from his customers first 6 and thereafter they all left the place. During the trial, Vicky was identified by PW4 and PW6 as the 1st accused.

On 2.11.2015 at about 2 pm, PW4 received a telephone call from the 1st accused informing that PW4 may deal with him at any time and for the amount that PW4 wishes. The 1st accused also said that if PW4 confirms buying the drugs, he has to inform the 1st accused 2 days earlier for him to get ready with the stock.

In response to the 1st accused telephone call on 10.11.2015, at about 6 pm, PW4 telephoned the 1st accused informing him that PW4 agree to buy 3 kilos of the drugs and that if his customers were happy with the drug, he will buy more. The 1st accused informed PW4 that he would call him if the drug was ready.

Next, on 15.11.2015 at about 8 pm, PW4 received a telephone call from the 1st accused informing him that PW4 has to wait for 1 to 2 months as the syabu stock from India was not available at that time but if PW4 still want the drug, the price would be expensive and suggested PW4 to wait for the drug with a cheaper price.

Further, on 10.1.2016, at about 10 pm, the 1st accused telephoned PW4 informing him that the 1st accused can deliver the drug to PW4 for a price of RM62,000 per kilo. The arrangement was that the 1st accused will come and count the monies for buying the drug and the drug will be delivered at the same place. PW4 agreed with the arrangement and told 7 the 1st accused that he will get ready with the monies for 3 kilos of the drug. PW4 then informed DSP Jasmirol about his arrangement with the 1st accused.

On 24.1.2016, at about 7 pm, PW4 telephoned the 1st accused and informed him that PW4 was ready with the monies in the sum of RM186,000 and ready to do the transaction with the 1st accused. PW4 was then informed by the 1st accused that he will prepare the syabu stock and will notify him.

In furtherance to the conversation on 24.1.2016 between PW4 and the 1st accused, on 30.1.2016 at about 9 pm, PW4 received a telephone call from the 1st accused informing that the syabu stock was ready and they can proceed with the transaction at any time and the place for the transaction was near the shop at Petronas Station, Batu Caves. In response, PW4 told the 1st accused that he will be there on 1.2.2016 to which the 1st accused informed him that the transaction was to be made before 5 pm. The matter was then informed to DSP Jasmirol by PW4.

On 1.2.2016 at about noon, a briefing was held at the Jabatan Siasatan Jenayah Narkotik, Ibu Pejabat Kontijen Selangor (“JSJN, IPK Selangor”) which was attended by PW4, PW6, and other JSJN police personnel. The briefing was given by PW5 regarding the police operation involving the sale of the drug by the 1st accused and PW4. In the said briefing, PW4 was given cash monies of RM186,000 by DSP Jasmirol which was placed in a black school bag. The monies were meant to pay for the buying of 3 kilos of drugs from the 1st accused. PW4 was also 8 asked to signal the police team when the transaction was completed by scratching his head.

After the said briefing, PW4 and PW6 proceeded to the shops near Petronas Station at Batu Caves in PW6’s car. The police team headed by PW5 and divided into 4 teams, was also headed to the place in 4 separate cars. On the way to the location, at about 3.30 pm, PW4 received a telephone call from the 1st accused informing that he will be at the place with another friend to count the monies and that if the amount is enough, the drug will be delivered at the same place. PW4 then informed the 1st accused that he was on the way to the place and will call the 1st accused when he reach there. DSP Jasmirol and DSP Husni were informed by PW4 about PW4’s conversation with the 1st accused.

The police team arrived at the location at about 4 pm whilst PW4 and PW6 reached there at about 4.30 pm. Upon arrival at the place, the police team stationed themselves there and made their observation of the area. They were ready to make any arrests. PW4 then telephoned the 1st accused informing him that he had arrived at the place. PW4 also informed him that he was in a blue Ford Laser car, registration number 6262.

Thereafter, PW4 saw the 1st accused with another Indian man walking and coming near the car. PW4 then came out from the front seat and went to the back seat of the car and at the same time, the 1st accused introduced the man that accompanied him as his partner. The man was identified in Court as the 2nd accused. The 1st accused entered the front 9 passenger seat beside PW6 in the driver seat whilst the 2nd accused entered the back passenger seat with PW4.

The 1st accused then asked PW4 about the money that he needs to count and PW4 handed him the black bag that contained the monies which he brought into the car. The 1st accused thereafter passed part of the monies to the 2nd accused. Both of the accused then counted the monies and after they counted the monies, PW4 put them back in the black bag.

Next, the 1st accused asked for the car to move forward and parked on the right side of the road. This was done whilst all four of them were in the car.

A few minutes later, an Indian man riding a motorcycle stopped at the right side of the car, and PW4 was informed by the 1st accused that the Indian man was his friend. This man was identified in court as the 3rd accused. The 3rd accused then asked the 1st accused whether the monies have been counted which was answered by the 1st accused in the affirmative who told the 3rd accused that the amount was enough. The 3rd accused thereafter asked PW4 to show him the monies which PW4 did and the 3rd accused touched the monies and told the 1st accused that the drugs will arrive in a short while. The 3rd accused then left the place riding his motorcycle.

Subsequently, after a few minutes, the 3rd accused came back again and parked his motorcycle in front of the car where PW4, PW6, 1st accused and 2nd accused were waiting in the car. The 3rd accused informed them that his friend would deliver the drugs in a taxi.

About 10 minutes later, a blue Toyota Innova taxi with registration number HBB 1522 stopped near the car and the 3rd accused who was still on his motorcycle and the 1st accused informed them that the drugs have arrived. The taxi driver was alone in the taxi. Thereafter, PW4, the 2nd and the 3rd accused alighted the car and entered the taxi. PW6 and the 1st accused were still in the car. Upon entering the taxi, PW4 saw a black plastic bag at the footrest of the back passenger seat and when opened by PW4, he saw 3 transparent plastic packets that contained substances believed to be drugs. PW4 then inform them that he will get the monies that were in the car. Soon after PW4 came out from the taxi, he signaled the police team that was waiting near the area by scratching his head with his right hand. The taxi driver was identified in court as the 4th accused.

PW5 and his team then raided the taxi and arrested the 2nd, 3rd and 4th accused whilst the 1st accused was arrested by PW6. The 1st to 4th accused were stunned when they were arrested by the police. PW5 then seized the black plastic bag found in the taxi which contained the 3 packets with substances believed to be dangerous drugs. On 1.2.2016, PW5 handed over all the seized items, in this case, to the Investigation Officer, Inspector Mohd Soffi bin Mislin (PW7) at Bahagian Siasatan Jenayah Narkotik Daerah Gombak, Selangor.

On 4.2.2016, PW7 sent the substances believed to be drugs to the Chemistry Department, Petaling Jaya for analysis, and having analyzed the substances in the 3 plastic packets, the Chemist, Dr. Vanitha a/p Kunalan (PW1), found it contained a total of 2264.2 grams methamphetamine which is a dangerous drug listed in the 1st Schedule of the DDA 1952. The decision of the trial judge at the end of the prosecution’s case.

Upon the maximum evaluation of the evidence adduced by the prosecution, the trial judge found that the prosecution has established a prima facie case against all the accused on the charge preferred against them. In coming to this finding, the trial judge found that the prosecution witnesses were credible in particular, PW4, PW5, and PW6. The witnesses were police personnel that was carrying out their duties and have no reason to victimize all the accused. The trial judge also considers the involvement of PW4 and PW6 as agent provocateurs that have established the offence of trafficking dangerous drugs as defined under section 2 of the DDA 1952. In the grounds of judgment, the trial judge inter alia said this: “32. Mahkamah ini setelah menilai keterangan yang dikemukakan di dalam kes ini dan mendapati ianya melibatkan ejen provokatur yang jelas menunjukkan berlakunya transaksi jual beli dadah yang akan dipindahmilik kepada SP4 dan SP6 sekiranya jualbeli tersebut diselesaikan dan mendapati tindakan semua tertuduh adalah tergolong di bawah seksyen 2 Akta Dadah Berbahaya 1952 bagi dadah jenis methamphetamine berjumlah 2,264.2 gram tersebut.”

All four accused were then called to enter their defence and all the accused elected to give evidence for their defence under oath. The Defence.

Essentially, the 1st accused’s defence was that he has no knowledge of the drugs found in the taxi. He denied meeting with PW4 and PW6 at the Old Town White Coffee on 30.12.2015 or negotiating to sell drugs to them. He and the 2nd accused was present in the blue Laser car on 1.2.2016 to count the monies as requested by one Paramasvaran a/l Patchiappan who inform him to ensure that a person name Navin has brought RM180,000 that was to be delivered to Parasmasvaran. The 1st accused was promised RM500 to do this job.

Similarly, with the 2nd accused, he denied any knowledge of the drugs found in the taxi and did not involve in any negotiation to sell drugs. The 2nd accused was present in the car at the request of his friend, the 1st accused, to assist the 1st accused to count monies in the sum of RM180,000 belonging to a person known as Param. He then asked his friend, the 3rd accused who works as a security guard, to come to the location to ensure their safety as it involves a large amount of money.

The 3rd accused also denied any knowledge of the drugs in the taxi and was not involved in the sale transaction of the drugs. His presence at the location was at the request of the 2nd accused to ensure his and his friend’s safety.

The essence of the 4th accused defence was that, at the material time, he was carrying a passenger, an Indian man, who alighted at Restoran Madura and asked him to wait. While waiting, the 4th accused received a telephone call from the Indian man and asked him to proceed further in front to a place where a few lorries were parked as the Indian man and his friends were waiting there. At the location, the 4th accused was arrested by the police and the police found a bag that was believed to contain drugs at the footrest of the back passenger seat. The 4th accused believed that the bag belongs to his passenger, the Indian man that was in his taxi earlier. The trial judge’s finding at the end of the defence’s case.

Having assessed the defence and the evidence in totality, the trial judge found that the defence by all the accused was a mere denial and an afterthought. The defence has failed to raise any reasonable doubt in the 14 prosecution’s case. As such, all the accused were convicted for the offence charged against them and sentenced to death.

In the appeal before this Court, the issues raised by counsels for the appellants are as follows:

break in the chain of exhibits that creates doubt on the identity of the drugs;

(ii) failure of the trial judge to invoke adverse inference against the prosecution for non-production of material documents under section 114(g) of the Evidence Act 1950;

(iii) failure to investigate the telephones that were confiscated by the police;

(iv) common intention under section 34 of the Penal Code was not proven;

control, custody, and knowledge of the plastic bag that contained drugs were not proven;

(vi) failure of the trial judge to fairly, properly, and adequately appreciate the defence;

(vii) excessive intervention by the trial judge during the trial in breach of section 165 of the Evidence Act 1950;

(viii) failure of the trial judge to comply with the provision of section 182A of the Criminal Procedure Code. The issue of the break in the chain of exhibits creates doubt about the identity of the drugs [36] Counsel for the 2nd to 4th accused submitted that there was a break in the chain of the drugs in the plastic bag. This is mainly due to the discrepancies in the evidence of PW5 who seized the drugs at the scene and the evidence of PW7, the Investigation Officer who received the exhibits from PW5. PW5 testified that he arrested the 2nd to 4th accused around 4.55 to 5.00 pm on 1.2.2016 but PW7 in his evidence said that he received the exhibits including the plastic bag (P18A), that contained the drugs at 4.00 pm on the same day. Further, in the “borang serah menyerah” (P10), it states that the seized items were handed over to PW7 at 8.30 am. Therefore, the identity of the drugs found in the taxi on 1.2.2016 was doubtful. [37] On this issue, it is pertinent for the prosecution to establish that the drug found at the scene is the same drug analyzed by the Chemist and later the leftover drugs after analysis with the packaging which was sent to the Chemistry Department were produced in court. Any doubt that arises that affects the proof of this fact would entail the failure to establish the identity of the drugs which is the subject matter of the offence of possession or trafficking of dangerous drugs under the DDA 1952. [38] The Federal Court in Public Prosecutor v Mansor Md Rashid & Anor [1997] 1 CLJ 233 at pages 247 and 248 explained the issue in the following manner: “…On the evidence adduced, there cannot be any doubt that the cannabis seized and handed to PW1 and PW13 was the cannabis produced in Court in this trial. When no such doubt existed, it was not essential for PW1 to show how she kept the cannabis before returning it to PW13, particularly when the defence did not at all cross-examine on or raise the issue. More pertinent to the instant ground of appeal, we are of the clear view that no question of “break in the chain of evidence” arises. In Su Ah Ping v. PP [1980] 1 MLJ 75 FC, Suffian LP said: The complaint before us was not that there had been no proof that the exhibits were serviceable, but simply that there was a “break in the chain of evidence”, and the prosecution should have called as witnesses all the officers through whose hands the exhibits passed from Inspector Takbir to the armourer and back to the Inspector. We do not think there is merit in this point. The question was whether the exhibits the Inspector produced were the guns and ammunition he found at the scene, and as when he produced them as those very guns and ammunition there was no objection by the defence, it would have been a waste of judicial time to call all the intervening handlers. In our experience, much judicial time is spent unnecessarily, notably in subordinate Courts, in ensuring no break in the chain of evidence. In our judgment, if the officer who picked up an object at the scene produced it and identified it as that very object, that is enough, and there is no need to call every other officer who handled it.” (emphasis added) [39] The same issue was addressed by the Federal Court in Hasbala Mohd Sarong v PP [2013] 6 CLJ 945 as follows: “[19] Thus, the only issue left is whether the unexplained difference between the gross-weight of the drug exhibits as found by PW6 and that of PW3 is sufficient to create a reasonable doubt to the prosecution’s case. On the facts and circumstances of this case, we answer the issue raised in the negative. In this case, PW4, and PW6 had clearly identified the drug exhibits that were produced before the High Court. Both PW4, as well as PW6, had identified the markings that they had made on the exhibits including the date and the signatures they placed on the five slabs of the drug exhibits. PW3 too had identified the markings as found on the exhibits when she received it from PW6. [20] Having regard to the evidence of PW4, PW6 and PW3, learned counsel’s contention that the drug exhibits produced before the High Court might not be the same as the one seized by PW4 from the appellant is, in our view, misconceived. On the evidence adduced, we are not in doubt that the drug exhibits seized and handed to PW6 and examined by PW3 were the same drug exhibits that were produced before the High Court upon which the appellant was charged. There was no break in the chain of evidence that could have created a reasonable doubt as to the identity of the drug exhibits.” (emphasis added) [40] Likewise in the case of Loh Kah Loon v PP [2011] 5 CLJ 345 where the Federal Court emphasized as follows: “[17] It can be seen from the above that there was no break in the chain of evidence regarding the exhibits. The identity of the exhibits was well established. Thus, on the facts of this case, the difference in the weight of the exhibits as found by the police and the chemist, by itself cannot be said to have created doubt as to the identity of the exhibits. The real question is whether the exhibits recovered by the police is the same exhibits sent to and examined by the chemist and subsequently produced in court as evidence. We have no doubt that it was the same exhibits.” (emphasis added) [41] Reverting to the present case, PW5, the raiding officer testified that from the time he took possession of the drugs, he handled it and when arrived at his office at the Narcotic Division, Police Headquarters, Gombak, he marked the black plastic bag with the word “A” and the 3 plastic packets that contained drugs with “A1”, “A2” and “A3”. PW5 also placed his signature and date “1/2/2016” on the plastic bag and plastic packets. This is what PW5 said in his evidence: “S: Ke atas barang rampasan yang disyaki dadah syabu itu, awak ada buat sebarang tandaan atau tidak? J: Ada, YA. S: Apa tandaan yang awak buat dan apa barang kes yang terlibat? J: Pada beg plastik saya tandakan huruf ‘A’, tandatangan saya dan tarikh 1/2/2016 dan 3 plastik itu saya tandakan A1, A2, A3 juga ada tandatangan saya dan juga tarikh 1/2/2016.” [42] On the same day, 1.2.2016, PW5 handed over the drugs with other exhibits seized in this case to the investigating officer, PW7. This is reflected in the “borang serah menyerah” (P10). [43] In Court, PW5 identified the markings on the black plastic bag and the plastic packets that he made on 1.2.2016. His evidence is as follows: “YA: P18(A) dicamkan S: 2.2 DSP? 3 plastik lutsinar, A1-A3, ada tandatangan kamu dan tarikh 1/2/2016. J: Benar YA. YA: P1-P3 dicamkan.” [44] Next, the Investigating Officer, PW7, upon receiving the exhibits from PW5 marked the plastic bag with the words “FFP” and the 3 plastic packets as “FF1”, “FF2” and “FF3”. Thereafter, he kept the exhibits in his steel cabinet in his office which was then locked by him. [45] On 4.2.2016, PW7 took out the exhibits from the steel cabinet and placed them in a box which he marked as “FFK” and sealed the box with “POLIS DIRAJA MALAYSIA 853”. At about 2 pm on the same day, PW7 then sent the box with its contents to the Chemistry Department, Petaling Jaya for analysis of the substances believed to be dangerous drugs. The box and its contents were received by PW1 who then issued a resit to PW7. [46] In Court, PW7 identified the box, black plastic bag, and the plastic packets that bore his markings. His evidence inter alia is as follows: “S: Insp Soffi, rujuk P10. Kalau awak cakap dah cakap dicamkan tadi, cakap dicamkan. J: 1 beg plastik bertanda A. S: Ada J: P18(A) S: 2.2 J: telah dicamkan. S: A1-A3 adalah tandaan pengadu. J: Ya tandaan saya. FF1-FF3.” ….. “S: Kotak bertanda FFK. Ada? J: Betul YA P18 dicamkan. S: Kotak FFK ini semasa kamu serahkan kepada Kimia, kamu seal dengan apa? J: Termeterai PDRM 853.” [47] PW7 further testified that the drug exhibits were always under his control and custody before they were sent to the Chemist. During cross-examination, PW7 denied that the exhibits he sent to the Chemist were not exhibits related to this case. [48] Further, the Chemist, PW1, testified that on 4.2.2016, she received a box from PW7 at the Chemistry Department Petaling Jaya marked as “FFK” and sealed it with “POLIS DIRAJA MALAYSIA 853”. The box contained a black plastic bag marked “FFP” and 3 plastic packets that contained crystal substances marked “FF1”, “FF2” and “FF3” respectively. The crystal substances were analyzed and found to contain 2264.2 grams of methamphetamine, a dangerous drug under the 1st Schedule of the DDA 1952. [49] After the said analysis, PW1 placed the remainder of the crystal substances in the same plastic packets “FF1”, “FF2” and “FF3” and marked them with the Chemistry Department laboratory number. Subsequently, on 12.7.2016 at 2.30 pm, the exhibits were then handed over to PW7. [50] During the trial, PW1 affirmatively identified the exhibits that she handled in this case. [51] Here, it can be seen from the facts, that the movement of the drugs was clearly explained by PW5, PW7, and PW1 and there was no break in the chain of evidence regarding the drugs. The drug seized by the raiding officer, PW5, in the taxi, was the same drug handed over to the Investigating Officer, PW7, and the same drug was analyzed by the Chemist, PW1. The exhibits were then produced and identified positively in court. Therefore, as there was no break in the chain of evidence regarding the drug in this case, the contention that the identity of the drug is doubtful is bereft of any merit. [52] The discrepancies about the time the drug was handed to PW7 by PW5 and also the time it was seized at the scene do not affect the overwhelming evidence that there was no break in the prosecution evidence relating to the drug and the identity of the drug as alluded to earlier. [53] In addition, the discrepancy will always happen in every case especially when it involves the memory of a witness as in this case about the time of handing over the exhibits. However, this does not mean that the whole of the evidence of the witness cannot be accepted. This has been explained in a plethora of authorities including the Federal Court case of Amri Ibrahim & Anor v PP [2017] 1 CLJ 617 which states as follows: “[62] It is important to note that every witness does not remember the same thing and he does not remember accurately every single thing that happened. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reason, to accept one part of the testimony of a witness and to reject the other (see: PP v Datuk Harun Haji Idris (No.2) 1976] 1 LNS 184; [1977] 1 MLJ 15)” (emphasis added) The issue of the trial judge’s failure to invoke adverse inference against the prosecution for non-production of material documents under section 114(g) of the Evidence Act 1950. [54] As regards this issue, counsel for the 2nd to 4th accused submitted that the failure of the prosecution to produce the telephone records and sim cards confiscated from the handphones is fatal as they are material to this case. Therefore, adverse inference against the prosecution should have been invoked by the trial judge. [55] To begin with, it is settled law that adverse inference under section 114(g) can only be drawn if there is withholding or suppression of material evidence including material witnesses or documents. (see Munusamy v Public Prosecutor [1987] 1 MLJ 492 (SC), Amri Ibrahim & Anor v PP [2017] 1 CLJ 617 (FC), Ong Hooi Beng & Ors v PP [2015] 3 MLJ 812 (CA)) [56] On the same issue, Chong Siew Fai CJSS (as he then was), in Public Prosecutor v Mansor Md Rashid & Anor (supra) had this to say: “Much had been canvassed before us respecting the drawing of adverse inference under s. 114(g) of the Evidence Act 1950 from the non-calling of Cholar and Amran. Whether or not such an inference should be drawn is not a matter of an inflexible rule but depends upon the circumstances of each particular case. In determining this issue, the question to consider is whether the existence of a fact or a state of things (i.e. Cholar introducing PW9 and was present the meetings; Amran staying in room ‘K’) makes the existence of another fact or state of things so likely that it may be presumed to exist. The answer must naturally vary according to the circumstances, the nature of the fact required to be proved and its importance in the controversy, the usual and commonly recognised mode proving it, the nature, quality, and cogency of the evidence which had not been produced and its accessibility to the party concerned. In our instant case under appeal, there can be no doubt that the basis of the prosecution’s case to substantiate the charge is on sale of the cannabis resulting from negotiation. There is ample evidence of direct negotiation between PW9 and the 1st respondent, and the carrying of the cannabis from room “K” by the 2nd respondent at the behest of the 1st respondent. On that basis, and given the roles played by Cholar and Amran as reflected from the evidence adduced, it is difficult to see how the two of them can be material to the point in issue i.e. sale through negotiation. Furthermore, the materials on record do not in any way suggest that the prosecution had withheld them with ulterior motives. We do not think any adverse inference should be drawn against the prosecution for the non-production of them, at least at this stage of the trial. (emphasis added) [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 negotiation. There is ample evidence to prove this fact on the evidence of PW4, PW6, and also PW5. 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 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 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 adverse inference against the prosecution under section 114(g) of the Evidence Act 1950. The issue of common intention under section 34 of the Penal Code. [59] It is settled law that an important element in common intention is “participation in action”. The element of pre-planning by the accused may develop during the course of the commission of the offence and the existence of common intention is a question of fact that may be established by inferences from the circumstances of each case including the conduct of the accused. In this regard, the Federal Court in Wan Yurillhami Wan Yaacob & Anor v PP [2010] 1 CLJ 17 had lucidly explained the issue of common intention in the following manner: “[29] It is well established principle of law in dealing with criminal liability under s. 34 of the Penal Code that a pre-concert or pre-planning may develop on the spot or during the course of the commission of the offence. The existence of common intention is a question of fact and in each case it may be proved as a matter of inference from the circumstances of the case. (see Mahbub Shah v Emperor AIR [1945] PC 118 and Suresh v State of Uttar Pradesh AIR [2001] SC 1344 ) (see also Lee Boon Siah & Ors v PP (2014) MLJ 11; Namasiyiam & Ors v PP

2 MLJ 336; Mahbob Shah v King Emperor (1945) AIR PC 118). (emphasis added) [60] Reverting to the present case, first and foremost, as mentioned earlier, the case for the prosecution was based on the negotiated sale of dangerous drugs which falls under the definition of trafficking under section 2 of the DDA 1952. The evidence alluded to earlier shows that all four accused participated in the transaction. The 1st accused negotiated several times, directly or over the phone with PW4 for the sale of the drugs. The 2nd accused was together with the 1st accused on 1.2.2016 who met PW4 and PW6 in the car near Petronas Station, Batu Caves where 1st and the 2nd accused counted the monies brought by PW4 to buy the drugs. The 3rd accused came to the place and asked whether the monies were enough and also asked PW4 to show him the monies. He then informed PW4 that his friend would bring the drugs in a taxi. A few minutes later, the 4th accused came to the place driving a taxi alone and the drug was found in the taxi. [61] Viewed the evidence in totality and the circumstances of the case as well as the conduct of each accused, we agree with the trial judge that all the accused participated in the sale of the drugs with PW4 and PW6. The reasonable inference is that all the accused had a common intention in the offence of selling the drugs. [62] We also have no reason to interfere with the finding of the trial judge that PW4 and PW6 were credible witnesses as the trial judge is in a better position to assess the witnesses during the trial as the trial judge had the audio-video advantage of the witnesses. As said by the Federal Court in Lee Ah Seng & Anor v PP [2007] 5 CLJ 1: “the approach to be taken by the appellate court when dealing with a trial’ court assessment of credibility of witness is well established by high authorities. The credibility of a witness is primarily for the trial judge. An appellate court should always be slow in disturbing such findings of fact arrived at by the judge who had audio-visual advantage of the witness, unless there are substantial and compelling reasons for disagreeing with the finding.” (emphasis added) [63] Furthermore, the evidence of PW4 and PW6 was corroborated substantially by a contemporaneous document which is the investigation diary of PW6 (D35). This investigation diary was tendered in court at the behest of the defence when PW6 gave his evidence although objected to by the prosecution. It turns out that the contents of this D35 supported the evidence of PW4 and PW6. [64] In the circumstances, we find that the contention the prosecution has not proved common intention, in this case, is untenable. The issue of control, custody, and knowledge of the drugs. [65] Counsel for the 2nd to 4th accused has raised the issue of control, custody, and also knowledge of the drugs which said has not been proven. [66] In this regard, we reiterated that the prosecution’s case was founded on the sale of drugs and the application of the definition of trafficking under section 2 of the DDA 1952. The sale of drugs, in this case, has been proven by the prosecution’s witnesses, in particular, PW4, and PW6 who were the agent provocateurs in this case. [67] On the same issue, it is useful to refer to the Federal Court case of Public Prosecutor v Mansor Md. Rashid & Anor (supra) where the court explained as follows: “Having regard to the evidence of this case, it is our view that the learned trial Judge was unduly concerned with the exclusivity of possession of the room “K” and the custody and control of the cannabis in question in relation to Amran. It is essential to bear in mind that the case of the prosecution was not based on custody or control thereby invoking the presumption of possession, or on possession of 200 grammes or more cannabis thereby attracting the presumption of trafficking under s. 37(d) or (da)(vi) of the Act. The prosecution founded its case of trafficking on the ‘sale’ of the cannabis to PW9, the agent provocateur. Section 2 of the Act defines “trafficking” thus: ‘trafficking’ includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug; Hence the definition of “trafficking” in the Act is wide and includes not only buying and selling but also carrying, keeping, and concealing. In the instant case under appeal, there is more than credible evidence from the testimony of PW9 that the respondents acted in concert in the sale of the cannabis to him..” (emphasis added) [68] As such, the issue raised is bereft of any merit. The issue of the trial judge’s failure to fairly, properly, and adequately appreciate the defence. [69] Counsel for the 2nd to 4th accused submitted that the trial judge had failed to consider, evaluate and appreciate the evidence of the 1st to the 4th accused. Further, the trial judge had wrongly found that their evidence was a mere afterthought and a bare denial. [70] In this regard, it is trite law that to get an acquittal against the charge proffered against the accused, the burden of the accused is only to raise a reasonable doubt in the prosecution’s case. Likewise, in the present case which involved negotiated sale of drugs where no presumption under the DDA 1952 is applicable for the four accused to rebut them on the balance of probabilities. However, the defence has to answer the prosecution’s evidence and viewed the evidence in totality, the trial judge then will decide whether the defence has raised a reasonable doubt in the prosecution’s case. In Azhar Lazim v PP [2012] LNS 262, this court opined the following: “[27] A credible defence is a defence that answers the evidence of the prosecution. It is purely a question of fact whether the explanation of the defence is capable of raising a reasonable doubt.” (emphasis added) [71] In the present case, having read the grounds of judgment, we find that the trial judge did consider the defence advanced by all the accused as reflected in paragraphs 64 to 76, and evaluated the defence as can be seen in paragraphs 77 to 88. Then only the trial judge concluded that the defence of all the accused is an afterthought and a mere denial that failed to raise a reasonable doubt in the prosecution’s case. [72] Here, we have no reason to interfere with the finding of the trial judge and the fact that the trial judge has found inter alia that PW4 and PW6 are credible witnesses. In this regard, it is instructive to refer to the Federal Court case of Yusri Pailmi v Public Prosecutor [2011] 4 MLJ 533, where the Federal Court states: “The learned trial judge and the majority of the Court of Appeal had found SP2 to be a witness of truth. SP2 was not an interested witness of truth, but a police officer performing his duties. He had related what he actually saw and did on that day. SP2’s evidence is credible and ought to be believed (see the cases of Public Prosecutor v Mohamed Ali [1962] MLJ 257 and Public Prosecutor v The Cheng Poh [1980] 1 MLJ 251) (emphasis added) The issue of extensive interference by the trial judge. [73] Next, counsel for the 1st accused submitted that the trial judge erred when the trial judge excessively intervened in the examinations of the 1st accused and the main witnesses for the prosecution which go beyond the provision of section 165 of the Evidence Act 1950. It was further contended that the intervention had prejudiced the accused in this case resulting in a miscarriage of justice. [74] For ease of reference, section 165 of the Evidence Act 1950 is reproduced below: “The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness or of parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question: Provided that-

The judgment must be based upon facts declared by this Act to be relevant and duly proved;

(ii) This section shall not authorize any judge to compel any witness to answer any question or to produce any document which the witness would be entitled to refuse to answer or produce under section 121 to 131 if the question were asked or the document were called for by adverse party; nor shall the judge ask any question which would be improper for any other person to ask under section 148 or 149; nor shall he dispense with the primary evidence of any document, except in the cases herein before excepted.” (emphasis added) [75] This section 165, clearly empowers a judge inter alia to ask any witness, any question, in any form, and at any time. No objection can be made by any parties about the question asked. Any cross-examination on the question asked must be with the leave of the court. The wide discretionary power of the judge is only limited by the provisos (i) and (ii) as stated above. [76] This court had the opportunity to address the same issue and the application of section 165 in the case of Elonita Abayon Chua v Pendakwaraya [2018] 1 LNS 273 where Mohd Zawawi JCA (as he then was) explained as follows: [27] Sesungguhnya adalah menjadi kewajipan seseorang hakim yang mendengar kes-kes jenayah untuk mempertahankan kedua-dua hak, iaitu hak- hak tertuduh dan awam (“public”) demi menegakkan integriti pentadbiran keadilan jenayah. Dalam prosiding yang dijalankan berdasarkan sistem bertentangan (“adversarial system”) seperti yang diamalkan oleh mahkamah-mahkamah di Malaysia, seseorang hakim tidak terlepas dari tanggungjawab untuk mengambil inisiatif, pada ketika dan dengan cara yang sesuai, bagi menimbulkan perkara-perkara yang secara nyata boleh membantu mahkamah membuat keputusan yang adil. Tujuan perbicaraan jenayah ialah untuk menentukan sama ada pihak pendakwaan telah berjaya membuktikan kebersalahan seseorang tertuduh seperti yang dikehendaki oleh undang-undang dan adalah tidak wajar seseorang hakim hanya bertindak sebagai “mere recording machine” dan/atau “silent spectator”. [28] Terdapat alasan-alasan kukuh mengapa seseorang hakim yang mendengar kes-kes jenayah perlu dan patut, dalam sempadan dan batasan yang dibenarkan undang-undang, untuk campur tangan (intervene) dengan membuat ulasan yang sesuai, memberi arahan arahan tertentu kepada pihak-pihak dan saksi-saksi dan bertanyakan soalan-soalan yang relevan dan penting, demi mencapai keadilan. Antara alasan-alasan tersebut ialah-

untuk membolehkan pihak-pihak memfokuskan pengemukaan keterangan terhadap perkara-perkara penting yang menjadi intipati pertuduhan;

untuk mendapatkan penjelasan mengenai aspek-aspek tertentu keterangan yang diberikan oleh saksi-saksi;

untuk mengelakkan keterangan yang tidak relevan dan berulang (“irrelevant and repetitive evidence”); dan

(d)untuk memastikan cara seseorang saksi memberi keterangan tidak menggugat kelancaran perbicaraan.” [29] Walau bagaimanapun, adalah penting untuk diambil perhatian bahawa memandangkan sesuatu perbicaraan jenayah di negara kita adalah suatu proses penentangan (“adversarial process”) antara pihak pendakwaan dan pembelaan, dan bukan suatu penyiasatan oleh hakim, pemeriksaan utama dan pemeriksaan balas, sebahagian besarnya, adalah menjadi tanggungjawab dan tugas Timbalan Pendakwa Raya dan peguambela.” (emphasis added) [77] In the same case, on the application of section 165, reference was made to Sarkar, Law of Evidence, Volume 2, page 2885 which states this: “[32] Sarkar, Law of Evidence, Vol 2, menjelaskan seksyen ini di muka surat 2885 – “Section 165 of the Evidence Act confers vast and unrestricted powers on the trial Court to put “any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact “relevant or irrelevant” in order to discover relevant facts. The said section was framed by lavishly studding it with the word “any” which could only have been inspired by the legislative intent to confer unbridled power on the trial Court to use the power whenever he deems it necessary to elicit truth. Even if any such question crossed into irrelevancy the same would not transgress beyond the contours of powers of the Court. This is clear from the words “relevant or irrelevant” in Section 165. Neither of the parties has any right to raise objection to any such question. The powers of the presiding judge of the trial court under s. 165 are unbridled and the Court can put any question to any witness at any stage so that evidence is not obscene but is clear on the relevant point. [Popathal Jethabhai Shah v. State of Maharastra, 2007 CrLJ (NOC) 605: 2007 (4) AIR Bom R 67 (Bom); Ramachandran v. State of Kerala, 2009, CRLJ 168(170)(Ker)].”. Dan di muka surat 2887 – Reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be about or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A judge is expected to actively participate in the trial, elicits necessary, materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing, which inhibits his power to put questions to the witnesses, either during chief examination or cross-examination or even during re examination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimized. [State of Rajasthan v. Ani, A 1997 SC 1023: 1997 CRLJ 1529, 1530, 1531. See also Assistant Commissioner and Land Acquisition Officer v. Rarmin, 1996 (6) Kar LJ 417 (Kant)].” (emphasis added) [78] In Elonita’s case, although there was interference by the trial judge, it was found that the intervention did not prejudice the accused significantly. Thus, the conviction and sentence by the trial Court were affirmed. [79] Further, the decision of this Court in Abuchi Ngwoke v Public Prosecutor [2016] 5 CLJ1 in substituting the accused’s conviction for trafficking in dangerous drugs to one of possession on the ground inter alia an extensive interference by the trial judge, was overturned by the Federal Court and maintained the conviction for trafficking by the trial judge. [80] In Singapore Court, the issue of extensive judicial interference has also been addressed and the main consideration is whether the intervention has resulted in actual prejudice against the accused. One of the instances of actual prejudice is that the interference has prevented a party from presenting its case. [81] In Muhammad Nabil bin Mohd Fuad v PP [2020] 1 SLR 984 at page 1037 Sundaresh Menon CJ said this: “166 Thus, for excessive judicial interference to be established, it would generally be necessary to show that the situation was “an egregious one” (see Mohammed Ali at [175(g)]). Plainly, where a complaint of excessive judicial interference is made on appeal, the appellate court will consider whether the court below has in fact acted in a manner that has resulted in actual prejudice to the relevant party; the relevant inquiry is not whether a fair-minded person would reasonably suspect or apprehend that the court below was biased (see BOI at [112]). Actual prejudice could, for instance, arise if a judge intervenes in the proceedings to such extent that it prevents a party from presenting its case.” (emphasis added) [82] In the present case, having assessed the questions asked by the trial judge to witnesses during the trial as highlighted by counsel for the 1st accused, we are of the considered view that apart from the questions were for clarification on certain issues, the questions also were asked to elicit materials from witnesses for the trial judge to make a correct and just decision. Further, the questions were not in the form of interrogative or investigative nature nor the witnesses had to succumb to any suggestion by the trial judge. [83] We also noted that the questions asked by the trial judge were not questions that the accused was entitled to refuse to answer under sections 121 to 131 of the Evidence Act 1950. The questions also were not questions that were not proper under sections 148 and 149 of the same Act which the trial judge was not authorized to ask as provided under proviso (ii) of section 165. Therefore, the questions asked in this case by the trial judge were within the parameter of section 165 of the Evidence Act 1950. [84] In addition, all accused were represented by their counsels and there was nothing to show that they were prevented or distracted to advance their defence due to the interference of the trial judge. All the accused had presented their complete defence for the consideration of the trial judge. As such, on the overall assessment of the questions posed by the trial judge and the overwhelming direct and documentary evidence on the negotiated sale of dangerous drugs in this case, we are also of the view that there was no actual prejudice to all the accused. [85] In the circumstances, the contention by counsel for the 1st accused on this issue of extensive judicial interference is without merit. The issue of the trial judge’s failure to comply with the provision of section 182A of the Criminal Procedure Code. [86] On this issue, counsel for the 1st accused contended that at the conclusion of the trial, the trial judge had failed to rule that the prosecution has proved its case beyond reasonable doubt as required under section 182A of the Criminal Procedure Code. (“CPC”) [87] Section 182A reads: “(1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it.

If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal” (emphasis added) [88] In the present case at the conclusion of the trial, the trial judge in his grounds of judgment states as follows: “88. Mengambil prinsip yang digunakan di atas, saya tidak berpuashati dengan pembelaan yang ditimbulkan oleh semua tertuduh yang hanya bersandarkan kepada penafian dan ‘afterthought” semata-mata dan gagal mengetengahkan sebarang keraguan yang munasabah terhadap kes pendakwaan. Setelah menilai kesemuanya, saya mendapati adalah selamat untuk mensabitkan semua tertuduh dalam kes ini.

Oleh itu, Mahkamah ini mendapati semua tertuduh bersalah dan mensabitkan mereka di bawah pertuduhan (P2), dan menjatuhkan hukuman mati mandatori seperti yang diperuntukkan di bawah seksyen 39B (2) Akta Dadah Berbahaya 1952.” (emphasis added) [89] It is clear from the reading of paragraph 88 of the grounds of judgment, the trial judge has made a finding that all the accused had failed to raise a reasonable doubt in the prosecution case. The phrase “..gagal mengetengahkan sebarang keraguan yang munasabah terhadap kes pendakwaan” is unambiguous in this finding and what it means is that the prosecution has proved its case beyond a reasonable doubt, short of putting it expressly in the grounds of judgment. [90] Further, the trial judge had found all the accused guilty of the charge against them and convicted them, as stated in paragraph 89 of the grounds of judgment. This is in accordance with section 182(A)(2) of the CPC, after the court has found the prosecution has proved its case beyond a reasonable doubt. [91] We are also of the view that there was no miscarriage of justice for all the accused when at the conclusion of the trial, the trial judge did not expressly state that the prosecution has proved its case beyond a reasonable doubt. In this regard, we refer to the Federal Court case of PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 where this was said: “[11] In our respectful view, Arulpragasan is authority for the proposition that the test to be applied under the former ss. 173(f) and 180 of the CPC is that the prosecution must establish its case beyond a reasonable doubt before an accused could be called upon to enter his defence. It is not authority for the proposition that it is incumbent for a court to make a finding at the close of the prosecution’s case that he was satisfied that the prosecution had proved its case beyond reasonable doubt. The failure by the trial court either to make or to record such a finding does not in our judgment occasion a miscarriage of justice...” (emphasis added) [92] Likewise in the present case, there was no miscarriage of justice for not stating expressly that the prosecution has proved its case at the conclusion of the trial. [93] For completeness, we are also of the view that the non-tendering of the search list in this case by the prosecution is not fatal as the recovery of the exhibits, in particular, the drugs in the taxi has been proven sufficiently by the direct evidence of PW5 and PW4. (see also case San Soo Ha v Public Prosecutor [1968] 1 MLJ 34) Conclusion [94] Based on the abovesaid reasons, we unanimously find that there was no appealable error by the trial judge in this case for our intervention. The conviction against all the accused is safe. Therefore, the appeal by all the accused in this case is dismissed and the decision of the High Court is affirmed. Dated this day, 24 February 2023 -sgd - (DATO’ NORDIN BIN HASSAN) Judge Court of Appeal Malaysia Putrajaya For the 1st Accused : Hisyam Teh Poh Teik Advocate and Solicitor [Messrs. Hisyam Teh] For the 2nd, 3rd & : Geethan Ram 4th Accused (Lavanyia Raja with him) Advocate and Solicitor [Messrs. Geethan Ram] For the Public Prosecutor : Eyu Ghim Siang Deputy Public Prosecutor [Attorney General’s Chambers]