Suthagar A/l Segaran v Pendakwa Raya (B-05(M)-443-10/2019)

Introduction [1] The appellant was arraigned before the High Court and charged with two counts of offences under the Dangerous Drugs Act 1952 (“the Act”). The first was a charge of trafficking in dangerous drugs under section 39B(1)(a) punishable under section 39B(2) and the other was a charge of possession of dangerous drugs under section 12(2) punishable under section 12(3) of the Act. [2] The case was originally heard by Zalita binti Dato’ Zaidan JC. Noorin binti Badaruddin J then took over conduct of the trial from the point of submissions at the close of the prosecution’s case and called for defence to be entered after finding that a prima facie case had been established. [3] The learned trial judge found the appellant guilty on both counts at the end of the defence case and was sentenced to mandatory death for the offence under section 39B(1)(a) and 2 years imprisonment for the offence under section 12(2). [4] Dissatisfied, the appellant appealed to this court against both conviction and sentence. We heard and dismissed the appeal and confirmed the conviction and sentence for the following reasons.

The Charges [5] The charges laid against the appellant read as follows: First Charge “Bahawa kamu pada 1 Disember 2016, jam lebih kurang 9.30 pagi, di No. C2-3, Rumah Pangsa Bukit Rawang Putra, Jalan Bukit Rawang Putra, Taman Rawang Putra, 48000 Rawang, di dalam daerah Gombak, di dalam negeri Selangor Darul Ehsan telah didapati memperedarkan dadah berbahaya seberat 31.2 gram (25.3 gram Heroin dan 5.9 gram Monoacetylmorphine) dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.” Second Charge “Bahawa kamu pada 1 Disember 2016, jam lebih kurang 9.30 pagi, di No. C2-3, Rumah Pangsa Bukit Rawang Putra, Jalan Bukit Rawang Putra, Taman Rawang Putra, 48000 Rawang, di dalam daerah Gombak, di dalam negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah berbahaya iaitu 0.12 gram Heroin dan 0.02 gram Monoacetylmorphine dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 12(3) Akta yang sama.”

Trial at the High Court

The prosecution case [6] The prosecution’s case is that on 1.12.2016, acting on information received that illicit drug activities were being carried out by an Indian male from a house at No. C2-3, Rumah Pangsa Bukit Rawang Putra, Jalan Bukit Rawang Putra, Taman Rawang Putra, 48000 Rawang Selangor (“the house”), a team of police officers led by Insp Khairul Hamizi bin Desa (PW7) from the Narcotics Investigations Division of IPD Gombak went to observe the activities at the house. [7] After about 5 minutes of observation, the appellant was seen coming out of the house. PW7 and the police team moved towards the appellant to question him and said to the appellant “polis, jangan lari”. The appellant attempted to run away but was caught and subdued by the raiding party. Once again PW7 introduced himself as a police officer and conducted a body search of the appellant. PW7 found a Dunhill cigarette box in the appellant’s shirt pocket in which were one (1) big and two (2) small transparent plastic packets containing white substance suspected to be heroin. The appellant was arrested. [8] Upon enquiry by PW7, if the appellant had kept any more drugs in the house, the appellant had led the police team inside to the kitchen and pointed to a black cupboard in the kitchen. PW7 opened the bottom drawer of the cupboard and found a black plastic packet with words “Terima Kasih” printed on it, and inside that bag were two (2) transparent plastic packets. In one of the two packets, PW7 found 220 plastic packets of white substance, which were subsequently weighed and found to have a gross weight of 539.90 grams. In the other packet, PW7 found 230 plastic packets containing similar white substance, which were subsequently weighed and found to have a gross weight of 556.90 grams. The police also found several personal items belonging to the appellant in the house. All of these items were seized. PW7 found no other persons in the house. [9] The police investigation team visited the house the following day and found a piece of towel and two toothbrushes in the bathroom. These items were subsequently sent for DNA analysis. A DNA profile was obtained from traces of blood on the towel and it matched the DNA profile of the appellant’s blood specimen. [10] The white substances found in the Dunhill cigarette box and the black plastic bag were sent to the Chemistry Department for analysis. PW1, the government chemist, had analysed these exhibits and found the substance found in the Dunhill cigarette box to be 0.12 gram Heroin and 0.02 gram Monoacetylmorphine, whilst the substance found in the black plastic bag to be 25.3 grams Heroin and 5.9 grams Monoacetylmorphine (thus totalling 31.2 grams). PW1 further confirmed that the drugs were dangerous drugs as listed in the First Schedule to the Act. [11] The house was owned by PW3, but he did not stay there. It was last rented out to one Mohd Noor Bin Hamzah from 2008 to 2010. Thereafter, the house was not tenanted out and was locked. In 2013 and 2016, the water and electricity supply to the house were cut-off. PW3 did not know the appellant and did not know how he came to occupy the house. PW3 was also surprised that there was water and electricity connection and supply to the house. The water supply was taken from an apartment below. [12] PW6, the next door neighbour at No. C2-4 testified that apart from the appellant, he did not see anyone else in the house. [13] The prosecution submitted that on the totality of evidence at the close of the prosecution’s case, they had successfully proved all elements of both offences. The learned trial judge having carried out a maximum evaluation of the evidence found that a prima facie case has been established for both charges, and accordingly called for the appellant to enter defence.

The Defence case [14] The appellant’s primary contention was that the prosecution had failed to prove the appellant’s exclusive possession of the drugs. The appellant denied that he was arrested at the front door of the house and instead contended that he was arrested at the motorcycle parking lots below. The appellant further contended that no fingerprints or DNA profile of the accused were obtained from the plastic packets containing the drugs. The appellant also denied that he had pointed to the kitchen cupboard where the drugs were found.

The High Court’s Findings [15] The High Court had at the close of the prosecution’s case carried out a maximum evaluation of the prosecution’s evidence and found that the prosecution had established a prima facie case as required under s. 180(1) of the Criminal Procedure Code. The learned trial judge found that the prosecution had proved all the ingredients of the offence of trafficking, namely:

that the drugs seized are dangerous drugs within the meaning and definition of the Act;

that the appellant was in possession of the drugs; and

that the appellant was trafficking in the said drugs within the meaning ascribed to it in the Act. [16] The learned trial judge had then called for the appellant to enter his defence. Having considered the evidence adduced by the appellant in defence of the charge, the learned trial judge found that the appellant had failed to raise a reasonable doubt on the prosecution’s case and accordingly convicted the appellant on both counts.

The Appeal [17] The appeal before us was mainly focused on the conviction for trafficking. In this respect, learned counsel for the appellant had concentrated his submission of the learned trial judge’s finding of possession of the drugs found in the cupboard.

The issue of possession of the drugs found in the cupboard [18] Learned counsel for the appellant argued that since no caution was administered to the appellant after his arrest as required under s.37B(1) of the Act, the evidence of the appellant showing the cupboard in the kitchen in answer to the question by PW7 if there were any more drugs in the house is inadmissible. In this regard learned counsel for the appellant had relied on the judgment of this Court in Akmat Hizat Karim v PP [2017] 1 LNS 1009, where it was held that the failure to administer the caution under s.37B(1) of the Act upon arrest would render inadmissible any oral statement made subsequent thereto by the accused in answer to any question as to whether there were more drugs in the house. Counsel submits that the evidence of the appellant’s conduct in pointing to the cupboard where the drugs were found was inadmissible by virtue of the failure on the part of the police officers to administer the caution after the appellant was arrested and handcuffed. Thus, counsel contends that the learned trial judge had erred in law in having admitted this evidence and that it ought not to have been considered as part of the prosecution’s evidence in establishing its case against the appellant. [19] This argument of inadmissibility of the evidence was also raised before the learned trial judge, which was considered and dealt with at length by her in paragraphs 52 to 62 of the Grounds of Judgment. The learned trial judge was of the view that the dicta in Akmat Hizat Karim v PP [2017] 1 LNS 1009 can be distinguished on the facts. In Akmat Hizat Karim, when the accused was asked after his arrest, and without caution being administered, whether there were any drugs in the house, the accused had orally answered in the affirmative. Hence, that would be a statement as envisaged in s. 37B of the Act. However, in the present case, the learned trial judge had noted there was no oral answer by the appellant to PW7’s question of whether he had any more drugs in the house. This is found in paragraph 55 of the Grounds of Judgment: “[55] Returning to the present case, this Court finds that there was certainly no statement or admission given by the accused when he was asked as to whether there were more drugs in the house by PW7. The evidence of the accused showing the cupboard located in the kitchen where drugs were found by PW7 in the bottom drawer of the said cupboard can be admitted pursuant to s.8 of the Evidence Act 1950.” [20] Now, s.37B of the Act reads:

Where any person is charged with any offence against this Act any statement, whether such statement amounts to a confession or not or is oral or in writing, made at any time, whether before or after such person is charged and whether in the course of a police investigation or not and whether or not wholly or partly in answer to questions, by such person to or in the hearing of any police officer of or above the rank of Inspector or any senior officer of customs and whether or not interpreted to him by any other police officer or senior officer of customs or any other person concerned or not in the arrest, shall notwithstanding anything to the contrary contained in any written law, be admissible at his trial in evidence and, if such person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit: Provided that no such statement shall be admissible or used as aforesaid-

...; or

in the case of a statement made by such person after his arrest, unless the court is satisfied that a caution was administered to him in the following words or words to the like effect- "It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a question or not, may be given in evidence": Provided that a statement made by any person before there is time to caution him shall not be rendered inadmissible in evidence merely by reason of no such caution having been given if it has been given as soon as possible. [21] The learned High Court Judge then went on consider the Appellant’s conduct of firstly trying to escape arrest which has a direct bearing on the fact in issue, i.e. the possession of drugs found in his shirt pocket and later in the kitchen cupboard, which is also a fact in issue. The learned High Court Judge found that the Appellant had physical possession of the drugs found on him, and in that factual circumstance must have the requisite knowledge of the drugs. The drugs found on his person form the subject of the possession charge. Secondly, according to the prosecution the accused showed the police officers the cupboard in the kitchen where the drugs that form the trafficking charge were found. The drugs found in his person and those found in the kitchen cupboard were of the same kind and were also wrapped in similar manner. The learned trial judge held that the conduct of the Appellant can be used as evidence against him pursuant to s. 8 of the Evidence Act. The onus then shifts under s.9 of the Evidence Act to the Appellant to explain his conduct. See: Parlan Dadeh v Public Prosecutor [2009] 1 CLJ 717. In the present case, the Appellant denied his conduct as testified by the police witnesses, and stated in his defence that he was arrested at the motorcycle parking lots at the ground floor and not in front of his house as contended by the prosecution. He further denied showing PW7 the kitchen cupboard from where the drugs that form the trafficking charge were found. [22] The testimony of PW7 in this regard was as follows: Q: Terangkan di mana OKT ditahan? A: Dalam kawasan rumah. Dah masuk rumah, di bahagian pintu rumah. Selepas ditahan perkenalkan diri sebagai polis dan buat pemeriksaan badan, jumpa 1 kotak rokok dalamnya ada 1 peket lutsinar besar dan 2 paket lutsinar kecil berisi bahan putih disyaki dadah Eramin. Kotak rokok tu dijumpai dalam plet baju kemeja yang dipakai oleh OKT. Saya hanya bercakap ‘polis’ dan ‘jangan lari’. Saya tanya lagi pada OKT adakah dia simpan barang-barang salah atau dadah dalam rumah. OKT membawa saya dan pasukan ke arah dapur dan tunjukkan pada saya dan pasukan 1 almari kayu warna gelap di bahagian dapur dan saya buka cabinet bawah almari dan padati 1 beg plastic warna hitam bertulis terima kasih. Siasatan lanjut dalam beg plastic hitam saya jumpa 2 beg plastic, didapati di dalamnya ada dadah. [23] Learned counsel for the Appellant contended that since there is a specific provision in the Act, i.e. s.37B(1), the High Court should have used that provision instead of the general provisions of ss. 8 and 9 of the Evidence Act when considering the admissibility of the evidence of conduct of the Appellant, as caution was not administered after arrest. In this regard, learned counsel has referred to this Court’s decision in Shamsul Kamar Bin Karia @ Halim v Pendakwa Raya [2013] 6 AMR 407, where it was held that the general provisions in the Evidence Act cannot override specific provisions of other statutes, and in this case the Act. Learned counsel further states that the act of the Appellant in pointing to the cupboard in answer to PW7’s query if there were any other drugs in the house is inadmissible as the caution as required after arrest was not administered pursuant to s.37B(1) of the Act. In this regard, learned counsel has further referred to the majority decision of this Court in Y Jeyamuraly a/l Yesiah v Public Prosecutor [2007] 5 MLJ 224 CA where, in disagreeing with the decision of Nik Hashim J (as then was) in PP v. Kanapathy Kupusamy & Anor [2001] 1 CLJ 61, the majority held that the conduct of the accused in picking up a biscuit tin containing drugs and handing it over to a police officer who had asked the accused if he had any more prohibited items in his custody or control amounts to a statement that falls squarely within the ambit of s.37B(1) of the Act, even though the answer was not verbalised. And since caution was not administered under s.37B(1) of the Act, the Court ruled that the evidence as regards to the act of the accused in taking and handing the biscuit tin was inadmissible. [24] This issue of whether conduct amounts to statement for the purposes of s.37B of the Act has now been settled by the Federal Court in the recent case of Ariff Arhannan Che Udin v PP [2022] 4 CLJ 1, where in answer to an argument by the appellant that his conduct of picking up a black bag containing the drug and handling it to the police officer was inadmissible as it amounted to a statement and no caution under s.37B of the Act was administered after his arrest, the Court held as follows: [53] Having given the matter our utmost consideration and having regard to the authorities, we agree with Nik Hashim J (as he then was) in Kanapathy Kupusamy & Anor (supra) that to hold that the conduct of an accused amounts to a statement under s. 37A (now s. 37B ) of the DDA would be to overstretch the language beyond its common usage. Likewise, we agree with James Foong JCA (as he then was) in his dissenting judgment in Y Jeyamuraly Yesiah (supra) that conduct cannot be considered as a statement under the section that required a caution to be administered before it could be admitted in evidence. [54] The word "statement" in s. 37B of the DDA must be confined to "something that is stated" or "written or oral communication" (Bhogilal Chunilal Pandya, Cormac McCarron, supra) and does not include conduct such as the act of the appellant in the present case of picking up the black bag containing the drug and handing it to SP6. If it were otherwise, the conduct of an accused running away from the police would also amount to a "statement" and would be inadmissible in evidence unless he had been cautioned under s. 37B of the DDA before he takes flight. [55] In holding the view that conduct amounts to statement, it is clear that the majority in Y Jeyamuraly Yesiah relied on the analogy used by counsel for the appellant in that case. This is reflected in the following paragraph of the judgment: After referring to several authorities, learned counsel submitted that where any act of an accused communicates a fact to the officer asking the question, such conduct must necessarily amount to a statement by the accused within the meaning of s. 37A of the Act. If this were not the case, then persons who cannot write, in other words, an illiterate and persons who are mute will automatically be excluded from the protection afforded by the section. This certainly cannot be what Parliament had intended when the said section was drafted. The intent and purport of s. 37A of the Act is to, amongst others, re-emphasise the fact that persons arrested have the right to remain silent and that they need not answer any questions after arrest. [56] With all due respect, the analogy given by the counsel in Y Jeyamuraly Yesiah which the majority relied on is not only inappropriate but unintelligible. An illiterate person may not be able to read and write, but that does not mean that he cannot speak to make a statement. The same goes with a mute person. He may not be able to speak, but that does not mean that he cannot make a statement by using sign language, which is a common occurrence even in court proceedings. Even if he has no ability to communicate in sign language, there are other means for him to make a statement such as writing it on a piece of paper. The question of being excluded from the protection afforded by s. 37B of the DDA does not arise at all. [57] If counsel's reasoning in Y Jeyamuraly Resiah were to be carried to its logical conclusion, it would mean that an illiterate or a mute person charged with an offence under the DDA would stand in a more advantageous position than one who is not because it could then be argued that since he is incapable of making a statement due to his incapacity, his conduct which incriminates himself such as handing over to the police an incriminating item of evidence will be excluded from evidence for the reason that it cannot amount to a "statement" by reason of his incapacity, whereas such conduct by an accused who is neither illiterate nor mute will amount to a statement. The argument cannot get more convoluted than that. [58] In the circumstances, we are constrained to reject learned counsel's contention that the learned JC was wrong in admitting evidence of the appellant's conduct on the ground that no caution under s. 37B of the DDA was administered to him. It is clear that such evidence of conduct is relevant and admissible under s. 8(2) of the Evidence Act 1950 which reads:

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. [59] The fact in issue before the High Court was whether the appellant had knowledge of the drug inside the black bag. His conduct of picking up the black bag and handing it to SP6 was clearly relevant to the issue. We are therefore unable to accept learned counsel's argument that the prosecution cannot rely on s. 8(2) of the Evidence Act 1950 on the ground that there is a special Act to deal with admissibility of statements, including conduct, given by an accused person charged with an offence under the DDA, applying the maxim generalia specialibus non derogant (the provisions of a general statute must yield to the provisions of a special one). The argument must fall once it is determined that conduct does not amount to statement. [25] Hence, the majority decision in Y Jeyamuraly Yesiah is no longer good law. Thus, we agree with the learned trial judge that both the conduct of the Appellant in trying to escape arrest and subsequently taking the police party to the apartment and pointing to the kitchen cabinet when asked if he had any more drugs in the house is admissible under s.8 of the Evidence Act, even though caution under s.37B of the Act was not administered after his arrest. We concur with the ruling of the learned trial judge that these conduct of the Appellant are relevant under s.8 of the Evidence Act, as possession and knowledge of the drugs in his shirt pocket and in the house are facts in issue which go to the core of the two charges. [26] To that extent, we disagree with counsel for the Appellant that the learned trial judge had erred when admitting, under s.8 of the Evidence Act, the evidence of PW7 stating that the Appellant had pointed to the kitchen cupboard in answer to PW7’s query if he had any more drugs in the house. In addition to that evidence, we find that the overall evidence when taken together is sufficient to uphold the conviction of the Appellant. We say so for the following reasons. [27] The evidence showed that the Appellant was the only person living in that apartment. The owner of the apartment (PW3) testified that he does not know the Appellant and that the apartment had been untenanted for some time after the last tenant left. The Appellant was unlawfully occupying the apartment. The power and water supply were connected to the apartment without the knowledge of the owner. The neighbour PW6 had testified that apart from the Appellant, he had not seen anyone else in the apartment. The police raiding party also found and seized the Appellant’s personal belongings in the apartment. [28] Learned counsel argued that the possibility of the apartment being occupied or accessed by persons other than the Appellant cannot be discounted and that the prosecution had failed to exclude such access. However, there was no evidence of any information being given to the police for them to investigate the existence or otherwise of someone else other than the Appellant who had access to the apartment. In fact, the Investigation Officer (PW8) had seized a towel and two toothbrushes in the bathroom of the apartment and those items were sent to the Chemistry Department for DNA analysis. The DNA profile was obtained from some traces of blood found on the towel which matched the DNA profile of the Appellant’s blood specimen. There was evidence of the DNA of another unidentified person was found mixed with that of the Appellant in one of the toothbrushes, and learned counsel for the Appellant submitted that this showed that there was another person living in the house. [29] The learned trial judge dealt with this issue in paragraph 45 of the Grounds of Judgment in the following manner: [45] The possibility of other persons having access to the house based on the fact that there was another person having access to the house based on the fact that there was another major contributor of DNA profile obtained from the toothbrush marked as “Z2”, cannot be gainsaid to have negated the fact that it was the accused who had the custody and control of the drugs premised on the evidence adduced and illustrated in the above. The evidence of PW6 clearly showed that apart from the accused, no other person by the name of Karunagaran who was suggested by the defence was seen to be the other occupant of the house. PW6 further affirmed that he would not know whether Karunagaran was seen by his housemates who apparently had moved out. In re-examination, the investigating officer PW8 had stated that Karunagaran was never mentioned during his investigation. ... ... [74] It cannot be denied from the accused’s evidence that he in actual fact had access to the house. Although I have not had the opportunity to assess PW7’s demeanour at the prosecution’s stage, his evidence remained intact ... [75] If indeed the accused version was true and that the accused was at the housing area to go to the house said to have belonged to Karunakaran, he could have just informed the police that one of the keys that was confiscated from him was Karunakaran’s house key and lead the police to the house. Instead, he watched Thinagaran testing the keys to all the houses on level 3. No explanation was given by the accused as to why he never told the police that one of the keys belonged to Karunakaran’s house at level 2. The only plausible explanation that could be gleaned from the accused’s version even if it was true (to which this Court found otherwise), is that he had refused to divulge the key to the house because he knew all along that the drugs were in his house. [76] PW8 had testified that Karunakaran’s name was never brought up in his investigation. The prosecution was therefore unable to check on whether the accused’s version of the facts was true or false. Karunakaran’s name therefore only arose during trial. No suggestion was even put to PW8 that the accused had informed him of the existence of Karunakaran. ... [30] We find that the learned High Court Judge’s dismissal of this argument is well founded. The overall evidence showed that the Appellant was the one living and occupying the apartment without the knowledge or consent of the owner, after having unlawfully connected the power and water supply to the apartment. In fact, the water connection to the apartment was sourced through a pipe connected to the lower floor. [31] The drugs that form the trafficking charge were found in the kitchen cupboard drawer. These drugs were similar to the ones that were seized from the Appellant’s shirt pocket and they were wrapped in similar plastic packets. The irresistible inference is that the source of the drugs found in the Appellant’s shirt pocket, that form the possession charge, was from the stock of drugs kept in the kitchen cupboard. The conduct of the Appellant in trying to flee when first approached by the police party is relevant as he had in his pocket some drugs (similar to those found in the kitchen cupboard) and the inference is that he wanted to escape from the long arms of the law. This shows not only physical possession of the drugs but also that the Appellant had the knowledge of what he possessed. Knowledge is often a matter of inference to be drawn from the surrounding circumstances and facts of the case. See: Parlan bin Dadeh v Public Prosecutor [2009] 1 CLJ 717. We agree with the learned trial judge that the prosecution had adduced sufficient evidence from which it could properly be inferred that the Appellant had the necessary knowledge of both the quantities of drugs found on his person and in the kitchen cupboard. [32] The learned trial judge found that a prima facie case had been established by the prosecution following a maximum evaluation of the evidence at the close of the prosecution case. We agree with that finding. There is uncontroverted evidence that PW1, the government chemist, had analysed the granular substances seized from the Appellant and the house and found substances in the Dunhill cigarette box to be 0.12 gram Heroin and 0.02 gram Monoacetylmorphine, whilst the substance found in the black plastic bag were 25.3 grams Heroin and 5.9 grams Monoacetylmorphine (thus totalling 31.2 grams). PW1 further confirmed that these drugs were dangerous drugs as listed in the First Schedule to the Act. [33] As for the element of possession and knowledge, we find that for reasons discussed earlier, there is sufficient evidence showing that the Appellant had actual possession and knowledge of the drugs. And finally, for the element of trafficking the learned trial judge had used the presumption of trafficking, as found in s.37(da) of the Act as the weight of drugs found in the kitchen cupboard were in excess of the statutory amount of 15 grams. [34] The learned trial judge had also given careful consideration to the defence case, which was that:

the apartment belonged to one Karunakaran who stayed there, and that the Appellant did not stay in the house but had only gone there once or twice;

the day before his arrest, he had gone to that apartment to borrow Karunakaran’s motorcycle to go look for a job as he was just released from prison;

when he was arrested, he had gone to the apartment to return the motorcycle to Karunakaran;

he was arrested at the motorcycle parking lots and not outside the apartment as contended by the prosecution;

the police had taken him to the 3rd floor after arrest and one of the police officers named Thinagaran had taken from him 3 keys, one of which was a key to Karunakaran’s house (the apartment), and the other was Karunakaran’s motorcycle key and the last his mother’s Selayang house key where he lived;

the police then raided the apartment and found the cigarette box and 3 plastic bags consisting of drugs. The Appellant testified that he did not know where the police found the other drugs and denied any knowledge of it;

the Appellant further testified that a day earlier to his arrest, he had gone to the bathroom in the apartment and used the towel behind the bathroom door to wipe his hands and face. He also saw a toothbrush on the bathroom floor which he picked up and return it to its original place. [35] The Appellant was the only witness in his defence. We find that the learned trial judge had considered the Appellant’s defence in some depth before deciding that:

the Appellant had failed to rebut the presumption of trafficking on a balance of probabilities; and

that the Appellant had failed to raise any reasonable doubt in the prosecution’s case. [36] We find that the learned trial judge had applied the correct tests in coming to her findings, and for reasons discussed earlier, we find that both convictions are safe. In the premise of the above, we dismissed the appeals and affirmed the conviction and sentence ordered by the High Court. Dated this 7th day of April 2023 -sgd-Vazeer Alam Mydin Meera Judge Court of Appeal Putrajaya Counsel for the Appellant: Jayananda Rao Nasbal bin Harun [Messrs. Rao & Kamal] Counsel for the Respondent: Parveen Hameedah Natchiar Atiqah binti Abdul Karim [Jabatan Peguam Negara, Putrajaya]