Siti Aisyah Binti Samdin v Pendakwa Raya (N-05(SH)-365-07/2024)

The appellant, Siti Aisyah binti Samdin, was charged with an offence under Section 39B(1)(a), which was punishable under Section 39B(2) of the Dangerous Drugs Act 1952 ("the Act"). The charge against the appellant was in the following words: Bahawa kamu pada 12 Ogos 2020 jam lebih kurang 5.15 petang, di dalam kereta BMW warna putih bernombor pendaftaran MCA 886, di kawasan tempat letak kereta berhampiran TF Value-Mart KIP Mart, KIPMART Lavender Senawang, Jalan KLS 4, Taman Lavender Height, di dalam daerah Seremban, di dalam negeri Negeri Sembilan Darul Khusus telah didapati mengedar dadah berbahaya jenis 'Heroin' dan 'Monoacetylmorphines' jumlah berat bersih 80.6 gram. Dengan itu, kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.

At the end of the prosecution's case, the appellant was called to enter her defence after the learned trial judge found that the prosecution had proven a prima facie case of trafficking in dangerous drugs as charged. In finding the prima facie case, the learned trial judge invoked the presumption of possession under Section 37(d) of the Act and found by direct evidence that the appellant was trafficking in dangerous drugs by the act of "keeping" the dangerous drugs. After hearing the defence, the learned trial judge found that the prosecution had proven the charge beyond reasonable doubt. The appellant was found guilty, convicted, and sentenced to 30 years' imprisonment from the date of arrest. Aggrieved by the High Court's decision, the appellant filed the instant appeal against her conviction and sentence.

We heard the appeal on 23 January 2026, and after hearing the parties, taking into consideration the written submissions and the appeal records, we unanimously allowed the appeal, set aside the conviction, and acquitted and discharged the appellant. Our grounds are as follows.

On 12 August 2020, at about 4.20 pm, a team of police officers led by SP4 from Jabatan Siasatan Jenayah Negeri Sembilan were keeping a look out in the vicinity of TF Value-Mart KIP Mart in Senawang ("the KIP Mart") after receiving information of sale of drugs involving a Malay female driving a white BMW car bearing registration No. 886 ("the car"). The suspicion of SP5, one of the police officers in SP4's team, who was keeping a lookout at the five-foot pathway of some shophouses, was aroused when she saw a Malay female, who was carrying a baby, looking around her nervously at the vicinity of the KIP Mart. SP5 approached the said female, who was the appellant, and detained her. The detention of the appellant was immediately conveyed by handphone to SP4.

While waiting for SP4 to arrive, SP5 questioned the appellant about the car key of the car the appellant had driven, and SP5 testified that the appellant had voluntarily taken out the car key from the pocket of her pants. SP5 said that the appellant then led SP5 to the car, which was parked at a car park that was situated adjacent to the KIP Mart.

When SP4 arrived at the place, the car was parked at around 5.15 pm, the car doors were unlocked using the car key given by the appellant. SP5 search the car in the presence of the appellant, and the other police officers, and a blue coloured zipper bag with the words Enfamama A+ ("the zipper bag") was found under some clothes at the back seat of the car. SP4 opened the zipper bag and found 5 purple coloured plastic packets, and in each of the plastic packets was a transparent plastic packet containing a granular substance suspected of being a dangerous drug.

At the time the packets were being examined, the appellant was said to be restless and crying. The appellant was arrested, and the bag, including its contents, the clothes, and the car were seized. A police report was lodged by SP4 on the arrest and seizure. A search list was prepared together with an exhibit handover form, and thereafter, all the items seized were handed over by SP4 to SP6, the investigation officer.

On 14 August 2020, SP6 took out the zipper bag, which she had locked in an iron cabinet, dusted the packets, and took photographs of the dusting process and thereafter put the zipper bag with its contents into an exhibit box and sealed the box. The exhibit box was then handed over to a chemist at the Chemistry Department for analysis of the granular substance and for a chemist report. SP6, caused to be taken photographs of the car and "fitting photographs" of the appellant wearing the clothes seized from the car. The clothes were alleged to fit the appellant. After examination, the exhibit box and its contents were returned to SP6 with a chemist report which stated that the granular substance in the packets were 29.2 grammes of "heroin" and 51.4 grammes of "monoacetylmorphines", both of which are dangerous drugs listed in the Act.

The material matters raised by the appellant in the prosecution's case were as follows:

that the drugs were not in possession of the appellant and that the appellant had no knowledge of the drugs;

(ii) the drugs were found in the zipper bag, which was not visible being under some clothes;

(iii) the clothes and a "baby seat" found at the back seat of the car did not belong to the appellant and belonged to Norfadlyna binti Ramli ("Norfadlyna"), who was her husband's second wife;

(iv) the appellant had no knowledge of the zipper bag and its contents, which were not visible, being under the said clothes;

the appellant had gone to Sg Udang, Malacca, to attend her father's funeral;

(vi) the appellant borrowed the car from Norfadlyna, who was the owner of the car;

(vii) Norfadlyna had lent the car to the appellant to go back to the latter's home in Semenyih and then to travel back to Sg Udang;

(viii) Norfadlyna was a material witness who was not called to give evidence on behalf of the prosecution; and

(ix) no DNA was taken from the clothes. [10] The appellant demeanour of restlessness and crying was not unusual when detained by persons not wearing uniform and of a person who had no knowledge of the drugs that were found and was afraid of being blamed for somebody else's wrongdoing. THE FINDING OF A PRIMA FACIE CASE [11] In determining whether the prosecution had proven a prima facie case, the learned trial judge found that the elements of the charge against the appellant were proven after undertaking the test as explained in Balachandran v PP [2005] 1 CLJ 85 and PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457. The elements of the charge are:

that "heroin" and "monoacetylmorphines" are dangerous drugs listed in the First Schedule of the Act;

that "heroin" and "monoacetylmorphines" with the net weight of 80.6 were found in the possession of the appellant, in that the appellant had custody or control of the dangerous drugs and knowledge of the dangerous drugs; and

the appellant was "keeping" the said dangerous drugs, which is an act of trafficking in dangerous drugs as defined in Section 2 of the Act. [12] The learned trial judge found that the prosecution had proven the first element of the charge through the evidence of the chemist (SP3) who testified that the granular substance found in the zipper bag were "heroin" and "monoacetylmorphines" which are dangerous drugs listed in the First Schedule of the Act. The learned trial judge also found the net weight of the said drugs found by SP3 was unchallenged and that there was no doubt as to the identity of the drugs from the time of seizure to the time the drugs were produced in court. [13] The learned trial judge found that the prosecution had proven the second element of the charge. In this regard, the learned trial judge accepted the evidence of the prosecution that the appellant was the only person having custody or control of the car and, following from this fact, had knowledge of the dangerous drugs found in the zipper bag. As a result, the learned trial judge found that the appellant was in possession of the dangerous drugs. [14] The learned trial judge found that the prosecution had proven the third element of the charge through the evidence establishing that the appellant was "keeping" the dangerous drugs. The evidence of "keeping" was deduced from the weight and manner the dangerous drugs were placed in the plastic packets. The weight of the dangerous drugs was an indication of the intention to traffic in dangerous drugs. [15] Lastly, the learned trial judge found the failure of not producing the CCTV of the scene at the time of arrest did not affect the finding of custody or control, as the CCTV recording was merely supportive evidence. Further, the learned trial judge had accepted the explanation of SP6 that the pen drive containing the CCTV recording had malfunctioned. In the circumstances, the learned trial judge held that Section 114(g) of the Evidence Act 1950 was not applicable. [16] Of importance is the fact that the learned trial judge found that possession of the drugs was proven by invoking the presumption of possession under Section 37(d) of the Act. The learned trial judge found that the element of 'trafficking in the dangerous drugs' was established by the act of the appellant "keeping" the dangerous drugs found in the car. [17] For the forgoing reasons, the learned trial judge concluded that the prosecution had established a prima facie case and called the appellant to enter her defence. The appellant chose the right to give evidence on oath THE DEFENCE [18] The appellant testified that her father had passed away on 10 August 2020, and she had travelled from Semenyih, where she lived, to her parents' house in Sg Udang, Malacca, for the funeral using Grab transportation. On 12 August 2020, around 1.00 pm, she went to Norfadlyna's house, who was her husband's second wife, to borrow Norfadlyna's car to return to her house in Semenyih. The purpose of the appellant returning to Semenyih was to get her own clothing and her baby's necessities and return to Sg Udang. [19] The appellant said that when she borrowed the car, the clothes and the "baby seat" were already at the back seat of the car. The appellant said that she did not see the zipper bag at any time or had knowledge of its existence. The zipper bag was found by SP5 under the clothes at the back seat and was not in plain sight. The appellant said that the clothes and "baby seat" belonged to Norfadlyna, who was the owner of the car. [20] The appellant said that she left Malacca at about 2.30 pm and on the way stopped at Senawang to buy some milk for her child and some other items from the KIP Mart. She said that she parked the car in a car park adjacent to the KIP Mart. After exiting the KIP Mart, she said that she decided to enter a shop known as KNX Brownies. As she was about to enter the KNX Brownies shop, she was suddenly stopped by SP5. [21] The appellant claimed that SP5 did not identify herself as a police officer and straightaway asked for her car key. In fear of being robbed and to protect her child, the appellant said she started to cry and gave the car key to SP5. The appellant said that it was SP5 who brought the appellant to where the car was parked, and shortly thereafter, SP4 arrived at the scene. The appellant had asked SP4 why she was being detained, and SP4 told her to be patient. SP4 then opened the car using the car key. SP5 made a search in the car, and the zipper bag was discovered from under the clothes that were on the back seat. DECISION OF THE HIGH COURT [22] The learned trial judge characterized the evidence given by the appellant as a fabrication, an afterthought, and a bare denial. The learned trial judge gave the following reasons for arriving at this conclusion:

the story of the appellant that she had no knowledge of all the contents of the car until she was arrested is doubtful, considering the appellant did not ask the owner of the car to take the clothes and the "baby seat" when she borrowed the car;

(ii) there was no evidence that the appellant had purchased diapers or other necessities for her baby, as that was the reasons given by the appellant to stop over in Senawang while travelling to Semenyih;

(iii) there was no need for the police to investigate whether the "baby seat" is owned by Norfadlyna as the issue of ownership of the "baby seat" does not affect the fact that the appellant had control or custody of the car after borrowing the same from Norfadlyna and only the appellant had the power to keep or dispose everything in the car including the drugs found in the zipper bag; and

(iv) the short period of time the car was with the appellant was not an important fact since the appellant had exclusive custody or control of the car and the power to deal with the car, such as stopping over at Senawang or continuing her journey straight to Semenyih. [23] For the above reasons, the learned trial judge said that she found, after analysing the defence case, that the appellant had failed to rebut the statutory presumption of possession under Section 37(d) of the Act on the balance of probabilities. The learned trial judge concluded by stating that after a total evaluation of the evidence, the prosecution had proven its case beyond reasonable doubt. Hence, the learned trial judge found the appellant guilty and convicted the appellant before proceeding to sentence the appellant. OUR DECISION [24] The main ground of appeal was the assertion that the trial judge had fallen into error in determining that the appellant had not rebutted the presumption of possession. It was submitted that the appellant had, on the facts adduced, sufficient evidence and established that she did not have exclusive custody or control of the car since the owner of the car was not excluded on the basis that the appellant had only just borrowed the car for temporary use. [25] In the instant case, the learned trial judge had invoked the presumption of possession under Section 37(d) of the Act based on the fact that the appellant had exclusive custody and control of the car. The learned trial judge also found that the clothes under which the zipper bag was discovered, and the "baby seat" found at the back seat of the car, belonged to the appellant. In such circumstances, according to the learned trial judge, the appellant had custody or control of all the things in the car, including the zipper bag. [26] Having considered the evidence, we hold that the presumption of possession had clearly been rebutted by the appellant on the balance of probabilities. Our reasons for so holding are as follows. Custody or control of the car [27] The vital evidence accepted by the learned trial judge was the fact that the car key was produced by the appellant and the same car key was used to unlock the car, and that the clothes found at the back seat of the car fitted the appellant. It was also presumed that the "baby seat" belonged to the appellant since at the material time the appellant had her 6-month-old baby with her. The learned trial judge reasoned that, in light of the fact that said things found at the back seat of the car belonged to the appellant, the zipper bag discovered under the clothes would similarly be in custody or control of the appellant. [28] We find that, on the evidence, all that the prosecution had established was that the appellant had custody or control of the car since the car was unlocked using the car key produced by the appellant. In accepting this evidence, the learned trial judge invoked the presumption set out in Section 37(d) of the Act, which was in the following words: "any person who is found to have had in his custody or under his control shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug." [29] In this regard, the widely accepted interpretation of section 37(d) of the Act is that by Visu Sinnadurai J in PP v Tan Tuan Seng [1993] 2 CLJ 557. His Lordship held that the words "anything whatsoever containing any dangerous drug" in the section envisages that the dangerous drugs are contained in something, such as a container or receptacle. In the instant case, it was a bag. The presumption of possession of the dangerous drugs only arises if it is established by evidence that the accused person had in his custody or control the said thing which contains the dangerous drugs. Once the presumption of possession is invoked, there is no need to establish knowledge, as the element of knowledge is implicit on the presumption of possession being activated. In essence, once the presumption of possession under Section 37(d) of the Act is activated, the accused is deemed to have possession, and as he is deemed to have possession, he is also deemed to have knowledge. [30] It is established law that merely having custody and control of the car is insufficient since the car cannot be held to be "anything whatsoever" within the meaning of the words "anything whatsoever containing any dangerous drug" (Tong Peng Hong v PP [1955] MLJ 232; Syed Ali v PP [1982] 1 MLJ 132; PP v Tan Tuan Seng [1993] 2 CLJ 557). [31] In the instant case, there was a failure on part of the learned trial judge to consider the duration the car was in possession of the appellant, a factor that looms large when the accused is not the owner of the car and has borrowed the car from the owner. The principle was established by the Federal Court in PP v Abdul Rahman Akif [2007] 4 CLJ 337, where it was stressed the importance of considering the duration an accused had possession of a car from which dangerous drugs were recovered. It was held by the Federal Court in PP v Lin Lian Chen [1992] 4 CLJ 2086; [1992] 2 MLJ 561 that momentarily driving a car cannot be equated with having possession of the drugs found in the car. [32] In the instant case, the evidence revealed that the appellant had borrowed the car from the owner merely a few hours before being arrested. In this regard, the appellant merely had access to the car for a few hours and of importance is the fact that the prosecution had failed to exclude the possibility of others having access to the car. The facts show that the appellant had borrowed the car from the owner, Norfadlyna, who lived in Sg Udang. The facts show that the appellant had no plans of going to Sg Udang, and her trip there was necessitated by the death of her father. Furthermore, the zipper bag containing the drugs was not visible and was discovered under some clothes at the back seat. [33] We hold that the error of not calling Norfadlyna as a witness is a fatal error that goes to determining exclusive custody or control of the car. The importance of calling the owner of the vehicle is to exclude other persons having custody or control of the car. More so, when there is a positive assertion by the appellant that the clothes and the "baby seat" do not belong to the appellant. The learned trial judge had considered that some of the clothing could fit the appellant. However, only 3 of the clothes fitted the appellant. There were 5 clothes, and only 3 were used for fitting purposes. No evidence was led as to the other 2 clothes. [34] Furthermore, it was admitted by SP6 in cross-examination that the clothes were of different sizes and only 3 of the clothes fitted the appellant. The damaging admission by SP6 was that she did not know whether the clothes belonged to the car owner or the appellant, except some of the clothes could fit the appellant. In this regard, unless knowledge is proved, proximity to the dangerous drugs is insufficient (see Romi Amora Amir v PP [2011] 1 CLJ 870). [35] We are of the considered view from the above discussion that the appellant had adduced sufficient evidence to rebut the presumption of possession, including knowledge of the zipper bag and its contents - the dangerous drugs. Knowledge is an essential element of possession. The appellant had succeeded in disproving the presumed fact of knowledge by rebutting the presumption of knowledge of the dangerous drugs in the zipper bag. As such, the presumption of knowledge and possession have been rebutted by the appellant on the balance of probabilities (see Mohamad Radhi v PP [1992] 2 SCR 145). [36] In the upshot, we unanimously allow the appeal and set aside the conviction and sentence. The accused is thereby acquitted and discharged. DATED:1 APRIL 2026 -sgd-AMARJEET SINGH SERJIT SINGH JUDGE HIGH COURT KUALA LUMPUR LIST OF COUNSEL: For the Appellant: Paul Krishnaraja (with him Amy Chong and Virochean a/l Stephan Soosai) Messrs Paul, Amy Chong And Associates No.271(G), Jalan Haruan 5/7, Oakland Business Centre II, 70300 Seremban, Negeri Sembilan For the Respondent: DPP Mohamed Aznin Dato' Mohamed Ariff (with him DPP Mohd Zain Bin Ibrahim) Attorney General's Chamber Aras 5, No.45, Lot 4G7, Presint 4, Persiaran Perdana, 62100 W. P. Putrajaya.