Tan Kian Chew (JB-45A-18-12/2021)

The accused was charged with trafficking 707.40 grams of Methamphetamine.

The charge against the accused read as follows: - S/N ov7z5DZ0K0R2awphH4bFw **Note : Serial number will be used to verify the originality of this document via eFILING portal June 20, 2025 2 “Bahawa kamu pada 26 Januari 2021 jam lebih kurang 7.50 malam, bertempat di dalam kereta Toyota Altis bernombor pendaftaran VCP 6423, di Kilometer 58, susur keluar Simpang Renggam arah utara Lebuhraya Utara - Selatan di dalam daerah Kluang, di dalam Negeri Johor Darul Ta’zim, telah didapati mengedar dadah berbahaya iaitu sejumlah berat 707.40 grams Methamphetamine. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama”

The prosecution called the following 9 witnesses: -

PW1 - The Complainant.

(ii) PW2 - The Senior Executive, Claim Associate.

(iii) PW3 - The Forensic Investigating Officer.

(iv) PW4 - The Drug Chemist.

PW5 - The Fleet Examiner from Socar.

(vi) PW6 - The photographer

(vii) PW7 - The Investigating Officer.

(viii) PW8 - The DNA Chemist.

(ix) PW9 - The Storekeeper. [4] On 26.1.2021, L/Kpl Meor Nasrul Hafiz bin Muhamad (PW1) together with Kpl/S Mohd Zulhanif were patrolling Jalan Lembing Taman Sri Tebrau and saw a white Toyota Altis motorcar bearing registration No. VCP 6423 (“motorcar”) driven by a Chinese man. This Chinese man was later identified as the accused. [5] PW1 attempted to stop the said motorcar on the road shoulder by using the police siren to carry out a routine inspection. However, S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 3 the accused sped off towards Jalan Kasa and exited to the EDL Expressway. [6] PW1 then trailed the motorcar and reported to “Pusat Kawalan Daerah (DCC Selatan)” asking for other back-ups to detain the motorcar driven by the accused. [7] The accused was speeding his motorcar to escape. He went down the path of Jalan Tebrau, Pasar Borong Pandan area, driving in a zig-zag manner to the left and right of the road. Thereafter, the accused headed down the path of Lebuhraya Pasir Gudang to Taman Perling and knocked the Perling toll bar. Thereafter, the accused motorcar turned back heading towards the path of Senai and knocked the Senai toll bar before entering the North-South Highway heading north. [8] PW1 was assisted by MPV JH580 (L/Kpl 178300 Farhan, L/Kpl 202009 Shahril) MPV JH106 (L/Kpl 203979 Biniaman, Kpl/S 16199 Sharil) during the chase. [9] The chase lasted about 30 to 40 minutes over a distance of approximately 100 km. With the assistance of Bukit Aman Highway Patrol, comprising Kpl 176038 Rozed and Kpl 195196 Subri. A cut off was made to the motorcar driven by the accused at kilometre 58 just before the path to Simpang Renggam exit heading towards the north. PW1 then managed to detain the accused. [10] PW1 then introduced himself as a police officer by showing his authority card and asked the accused to produce his identity card for inspection. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 4 [11] During that moment, PW1 observed that only the accused was alone inside the motorcar whilst the engine still running. PW1 then instructed the accused to exit the motorcar and conducted a body search, but he found nothing. PW1 only found a sling bag and inspected the accused’s identity card. [12] Next, PW1 inspected inside the motorcar driven by the accused witnessed by the accused and the other assisting police officers. PW1 then found: -

One (1) green plastic packet with the words “Chinese Pin Wei” suspected to contain 1035 grams of the drug type “syabu”. He then marked it as “A”.

One (1) transparent plastic packet containing 1420 pills grey in colour weighing approximately 559 grams, suspected to be drug type “ecstasy pills”. He then marked it as “A1”.

One (1) transparent plastic packet containing 940 pills grey in colour weighing approximately 381 grams suspected to be drug type “ecstasy pills”. He then marked it as “A2”.

One (1) transparent plastic packet containing 1330 pills yellow in colour weighing approximately 449 grams suspected to be drug type “ecstasy pills”. He then marked it as “A3”.

One (1) transparent plastic packet containing 930 pills yellow in colour weighing approximately 307 grams suspected to be drug type “ecstasy pills”. He then marked it as “A4”. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 5 [13] According to PW1, the case exhibits which were suspected to be drugs were found on the footrest of the front passenger’s seat. [14] After that, PW1 arrested the accused, seized the drug case exhibits and the motorcar driven by the accused and brought them to “Bahagian Siasatan Jenayah Narkotik, IPD Johor Bahru for further investigation. [15] The accused had rented the motorcar from a motorcar rental company called SOCAR (Socar Mobility Malaysia Sdn Bhd). [16] Upon arrival at IPD Johor Bahru Selatan, at around 2130 hrs, PW1 inspected once more the case exhibits which were seized, weighed the drugs and made markings using a blue marker pen. [17] PW1 also prepared a search list for the case exhibits seized, explained it to the accused and got it signed by the accused. [18] Thereafter, PW1 lodged a police report on the arrest and seizure. This was followed by the handing over of the case exhibits and the accused to the Investigating Officer (PW7) for further investigation. [19] The case exhibits were sent to the chemist (PW4) by PW7 for analysis. [20] PW4, the chemist, confirmed that the drug case exhibits marked as A to contain 707.40 grams of Methamphetamine listed in the First Schedule of the Dangerous Drugs Act, 1952. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 6 [21] Whereas PW1 found the drug case exhibits marked as A1, A2, A3 and A4 did not contain any dangerous drugs. THE COURT’S DUTY AT THE CLOSE OF THE PROSECUTION’S CASE [22] At the close of the prosecution’s case, the Court must subject the evidence to maximum evaluation to determine whether a prima facie case has been made out against the accused which requires him to enter his defence. See PP v. Mohd Radzi Abu Bakar [2006] 1457 and Balachandran v. PP [2005] 1 CLJ 85. [23] A prima facie case can be said to be established where the prosecution had adduced such evidence of the essential elements of the charge as is sufficient to convict the accused if he were to keep silent and the evidence is left unexplained or unrebutted. [24] In Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734; [2003] 2 MLJ 65, the Court of Appeal formulated the test thus: - “It therefore follows that there is only one exercise that a judge sitting alone under s 180 of the CPC has to undertake at the close of the prosecution case. He must subject the prosecution evidence to maximum evaluation and to ask himself the question: if I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative then no prima facie case has been made out and the accused would be entitled to an acquittal.” S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 7 EVALUATION OF THE PROSECUTION’S CASE [25] To make its case against the accused, the prosecution had to establish: -

The identity and weight of the drugs, viz, 707.40 grams of

(ii) The accused had possession of the drugs; and

(iii) The accused was trafficking the drugs on the date and at the time and place as particularised in the charge. Identity and weight of drugs [26] Upon completion of her analysis, PW4 then prepared a chemist’s report on her findings dated 27.04.2024 (P17) which was later handed to Sjn 190291 Muhammad Amir Firdaus bin Nor Azman together with the case exhibits on 02.05.2021. [27] Learned counsel for the accused did not challenge PW4 on her qualifications or experience. PW4’s evidence in her witness statement (PWS-4) as to her qualifications and experience was therefore left unchallenged. As such, it is my finding that PW4 is qualified to testify as an expert witness under Section 45 of the Evidence Act, of 1950. [28] The identity and type of the drugs analysed by PW4 were also not challenged by learned counsel for the accused in his submissions. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 8 [29] Neither was there any challenge to the weight of the drugs in his submissions. [30] The chemist’s report confirms that upon analysis, PW4 found the plastic packet marked as “A” (P19) to contain clear crystal substances weighing 707.40 grams of Methamphetamine, which is a dangerous drug listed in the First Schedule of the Dangerous Drugs Act of 1952. [31] In the circumstances, the prosecution has established the first ingredient of the offence. Possession [32] To prove possession, the prosecution had to prove that the accused had knowledge of the drugs and that he had some form of control or custody of the drugs. In PP v. Muhamad Nasir bin Shaharudin [1992] 4 CLJ 2028; [1994] 2 MLJ 576 it was held: - “To prove either of these two requirements, the prosecution may either adduce direct evidence or it may rely on the relevant presumptions under s. 37 of the DDA.” [33] The meaning of custody and control has been explained by Raus Sharif CJ in Ghasem Hozouri Hassan v. PP [2018] 6 CLJ 133 thus: - “......when we talk about the issue of custody and control, what is crucial is that the accused must be so situated that he can deal with the proscribed drugs as if it belonged to him, and it must be shown that he S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 9 had the intention of dealing with it as if it belonged to him should he see any occasion to do so (he had animus possidendi).” [34] As for knowledge of the drugs, it was held in Chan Pean Leon v. PP [1956] 1 LNS 17: - “Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again, the possible variety of circumstances which will support such an inference is infinite. [emphasis added]” [35] Finally, in Anagwaonye Chukwudi Nathaniel v P.P [2020] 1 LNS 1277, it was held by the Court of Appeal: - “[8] In relation to the issue of possession, it is trite that the prosecution may establish actual possession without relying on presumed possession under section 37(d) and rely on the weight of the drugs to trigger the presumption of trafficking under section 37(da) to prove the charge under section 39B or to rely on the presumed presumption under section 37(d) and adduced affirmative evidence to prove trafficking with the aid of the definition of trafficking under section 2 of DDA 1952. [9] This matter has been lucidly explained by the Federal Court in the case of Public Prosecutor v. Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193 at page 203, in the following words: ‘[17] It ought to be stated at the outset that the decision in Muhammad bin Hassan only prohibits the use of double presumptions under ss. 37(d) and 37(da) of the Act. It is therefore, open to the prosecution to rely on either of the presumptions. In other words, the prosecution may positively prove possession without relying on the presumption under s. 37(d) of the Act and go on to rely on the presumption of trafficking under 37(da) of the Act to support a S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 10 charge under s. 39B of the Act. See Tunde Apatira & ors v. Public Prosecutor; Msimanga Lesaly v. Public Prosecutor [2005] 4 MLJ 314, a decision of Court of Appeal which was confirmed by this Court in Federal Court Criminal Appeal No 05 – 27 of 2004(K). Conversely, the prosecution may rely on the presumption under s. 37(d) to prove possession and seek to prove by affirmative evidence (independent of the presumption under section 37(da)) that the accused was in fact trafficking in the dangerous drugs.’ (emphasis added).” [36] To prove the accused had custody and control of the drugs, the prosecution relies on the close proximity of the accused seated on the driver’s seat and the drugs found on the footrest of the front passenger’s seat. They also submit that it was only the accused who was seen driving alone in the motorcar whilst being chased by the police. [37] The prosecution produced the motorcar rental agreement (P11) from SOCAR (Socar Mobility Malaysia Sdn Bhd) through PW2, the company’s Senior Executive, Claim Associate, to prove it was the accused who rented the motorcar from them. Exhibit P11 had the accused’s details, proof of payment, his photograph, copy of his identity card and driving license, the car ownership certificate, taxi license and memo window for the car reservation annexed to it. The certificate of ownership of motorcar by SOCAR was produced as P12A. [38] The prosecution also called PW5, the Fleet Examiner for SOCAR who testified that before the accused rented the motorcar, he had inspected and cleaned the inside of the motorcar parked at Caltex Perwira 9, Skudai, Johor Bahru. PW5 said he did not find anything left behind by previous users except for rubbish. PW5 further S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 11 testified that during the inspection, he did not find the drugs as shown in the photographs marked as P7 (A & B). [39] The prosecution also further submits that the drugs found on the footrest of the front passenger seat in the motorcar were not hidden and could be easily seen. [40] Henceforth, the prosecution submits that the accused, who was seated so closely to the drugs had control over them. Therefore, it can be concluded that the accused had custody and control of the drugs. [41] As for knowledge, the prosecution submits that the fact that the accused did not stop the motorcar when PW1 signalled him to stop and sped off by driving for about 100 kilometres being chased by the police shows that the accused knew the presence of the drugs found in his motorcar and was attempting to escape from the police. [42] The defence attacked the prosecution’s case on two main grounds. [43] Firstly, they submit that there is a break in the chain of evidence of the drug case exhibits. Secondly, there is no reasonable explanation from the prosecution witnesses about the handling of the drug case exhibits. Break in the chain of evidence. [44] Under this heading, learned counsel for the accused advanced several grounds. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 12 [45] Firstly, he submitted that the exhibits which were handed over to the investigating officer (PW7) differ from those which were seized by PW1. [46] According to learned counsel for the accused, this emanates from the evidence of PW1 that he had done the markings on the drug case exhibits twice, i.e. once at the place where the motorcar was stopped at kilometre 58 before the path to Simpang Renggam exit and the other at IPD Johor Bahru Selatan. [47] Secondly, there is a discrepancy as to the time PW1 arrived at IPD Kluang in his evidence with the time stated in the police report for the accused's urine test (D37). [48] Thirdly, the doubt surrounding which exhibits were handed over to the investigating officer (PW7) by PW1 is further compounded by PW1’s evidence that the drugs, in the form of pills, which were seized, were grey and yellow; however, according to PW7’s testimony, the pills handed over to her were only grey. [49] Henceforth learned counsel for the accused submits that the pills which were forwarded to the chemist (PW4) for analysis are the grey ones and not the yellow ones. [50] Fourthly, there is a discrepancy as to who cut open the seal on the green plastic packet with the words “Chinese Pin Wei” (P19). This is because, according to PW4, she cut open the seal. On the other hand, according to PW7, she cut open P19 to see the contents inside. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 13 [51] Fifthly, PW4 is also not aware of the existence of another plastic packet (P19A) inside P19. Further no markings were made by PW7 on this packet (P19A). [52] Lastly, defence counsel for the accused submits that there is no evidence as to where was drug case exhibits were kept from 3 p.m. on 27.01.2021 when the Forensic Officer was carrying out the swabbing on the accused motorcar until 8 p.m. on 28.01.2021. In support of his contention, he relies on the case of PP lwn. Aliff Azarie Abd Aziz [2024] CLJU 586 wherein it was held: - “[57] Pihak Pembelaan juga membangkitkan isu penyimpanan barang kes selepas proses dusting dan berhujah dengan merujuk kepada WSP1 di perenggan 12, 13 dan 14. SP1 menyatakan bahawa pada 14.02.2019 jam lebih kurang 1805hrs, beliau telah mengeluarkan barang kes yang disimpan di dalam peti besi untuk diambil gambar. [58] SP1 mengarahkan Jurufoto untuk mengambil gambar barang kes dan seterusnya membuat proses dusting bagi mengesan cap jari, tetapi kesan cap jari gagal ditimbulkan kerana permukaan plastik yang membaluti barang kes dadah tersebut tidak rata. [59] Keterangan SP1 adalah setakat beliau mengeluarkan barang kes dari dalam peti besi dan SP1 tidak menerangkan apa yang berlaku kepada barang kes tersebut setelah diambil gambar dan membuat proses dusting. [60] Timbul persoalan adakah pada 14.2.2019, barang kes (dua ketulan mampat) tersebut disimpan semula dengan selamat ke dalam peti besi yang sama atau dibiarkan di tempat gambar-gambar tersebut dirakam. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 14 [69] Mahkamah menerima hujahan pembelaan bahawa SP1 telah gagal memberikan penjelasan mengenai perkara-perkara yang dinyatakan di atas. Atas kegagalan SP1 yang tersebut telah menyebabkan terputusnya rantaian keterangan mengenai jagaan dan kawalan barang kes dan menimbulkan keraguan dalam kes Pendakwaan.” [53] Whereas the learned Deputy Public Prosecutor, in response to the first ground, submits that PW1 was never questioned as to the markings made by him twice on the drug case exhibits. In any event, according to the prosecution, PW1 had already identified in his evidence the drug case exhibits, which were seized by him during the incident. In support of her response, the learned Deputy Public Prosecutor relied on the case of Nnabueze Cornelius Agbodike lwn. PP [2020] 1 LNS 1055, wherein the Court of Appeal upheld the acceptance by the High Court of the identification of the drug case exhibits by the prosecution witnesses. [54] As to the second ground, the learned Deputy Public Prosecutor submits that the discrepancy between the time PW1 arrived at IPD Kluang and the time stated in D37, the police report for the accused's urine test is not fatal because the time stated in D37 is only an estimate. [55] As to the third ground, the learned Deputy Public Prosecutor submits that the discrepancy relating to the colour of pills which was seized is not fatal because identification of colours can vary from one person to another and therefore the prosecution’s case is not weaken. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 15 [56] As to the fourth ground, the learned Deputy Public Prosecutor submits that the Investigating Officer (PW7) had already explained that the drug case exhibits were kept by her until she took it out on 28.01.2021 at 2000 hours to seal it and place them into a marked case exhibit bag for purposes of sending it to the chemist for analysis. After that, PW7 kept the case exhibit bag locked in her locker at her office at all times. [57] On the last ground, the learned Deputy Public Prosecutor submits that P19A is only a plastic packet and PW7 had explained during her testimony that she had to open P19 to inspect the drugs inside but she did not make any markings on P19A. On failure by PW4 to identify P19A, the learned Deputy Public Prosecutor submits that P19A is only an empty plastic packet inside P19. [58] In conclusion, the learned Deputy Public Prosecutor submits that there is no break in the chain of evidence. No reasonable explanation from the prosecution witnesses about the handling of the drug case exhibits [59] Learned counsel for the accused also submits that there is no reasonable explanation from the prosecution witnesses about the handling of the drug case exhibits to dispel the discrepancies surrounding the drug case exhibits by relying on the decision in Gunalan A/L Ramachandran & Ors v Public Prosecutor [2004] 4 MLJ 489. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 16 Analysis and Findings [60] I find the markings on the drug case exhibits by PW1 stated in the search list (P5) and “Senarai Serah Menyerah Barang Kes” (P6) are the same. These markings can also be seen on the photographs of the physical drug case exhibits (P7 A & B). Furthermore, PW1 also had identified positively the physical drug case exhibits based on his markings A1, A2, A3 and A4 in the photographs (P7 A & B). PW1 was also never challenged by learned counsel for the accused as to what he meant by the markings he made at IPD Johor Bahru Selatan. [61] In the circumstances, I find PW1 had handed over to PW7 the same drugs case exhibits which were seized by him and there is no break in the chain of evidence. [62] Next, as to the discrepancy on the time of PW1’s arrival at IPD Kluang with the drug case exhibits and the accused and the time stated in D37, in my opinion, it is only an estimate and therefore it is not fatal to the prosecution’s case. [63] As to the discrepancy of the colour of pills, in my opinion, it is not fatal because the chemist (PW4) found the yellow and grey pills marked as A1, A2, A3 and A4 not to contain any drugs. Furthermore, these pills are not the subject matter of the charge. [64] Concerning the plastic packet (P19A) inside P19, which had no marking, in my opinion, it would be difficult to make any marking on P19A, being the packet inside P19 containing the clear crystal substance, unless the entire contents are emptied and only then S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 17 P19A can be removed from P19. Most importantly, I find PW7 has identified the existence of P19A inside P19. [65] Therefore, in this circumstance, I cannot see how the failure by the chemist (PW4) to identify P19A which is a plastic packet inside P9 containing the clear crystal substance, weakens the prosecution’s case. [66] Next on where were the drug case exhibits kept whilst swabbing on the motorcar was carried out by the forensic team? I find that the investigating officer (PW7) had explained in her examination in chief that the drug case exhibits were kept by her in her locker at her office. PW7 had further explained in her evidence the movement of the drug case exhibits. [67] Henceforth, in my judgement, it’s my finding that there is no break in the chain of evidence concerning the drug case exhibits. [68] Finally, on the point that there is no explanation from the prosecution’s witnesses about the handling of the drug case exhibits, I find there is no merit in this contention. Firstly, since I have found the chain of evidence is not broken, there is no gap which requires a reasonable explanation from the prosecution witnesses. [69] Secondly, this is not a case where the drugs were lost or destroyed after having been analysed by the chemist, as was in the case of Gunalan A/L Ramachandran (supra). S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 18 [70] In the present case, the chain of evidence is not broken and therefore, there is no gap which requires a reasonable explanation from the prosecution witnesses. [71] In my judgement, based on the direct evidence adduced by the prosecution, the accused was found to be driving the motorcar alone with the drugs found on the footrest of the front passenger seat. [72] PW5, the fleet examiner from SOCAR, testified that before the motorcar was rented out to the accused, he had cleaned and inspected inside the motorcar and did not find the drugs as shown in P7 (A & B) inside the motorcar. [73] The accused was seated on the driver’s seat in close proximity to the drugs inside the motorcar. [74] As for knowledge of the drugs, the conduct of the accused speeding to escape the police inspection when he was asked to stop and drove about 100 kilometres whilst being chased by the police shows that the accused had knowledge of the drugs. [75] Therefore, the irresistible inference that can be drawn is that the accused was avoiding the police from inspecting inside the motorcar that he was driving. In PP v. Mohd Bandar Shah Nordin & Anor [2008] 4 CLJ 859, wherein His Lordship Gopal Sri Ram held as follows: - “[10] … We need not rehearse all the circumstances to which we have already referred in coming to this conclusion. Suffice to say that the close proximity, taken together with the evidence of flight and the possession of the motorcycle by the first respondent S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 19 supports the inference that there was mens rea possession on his part… … [12] With respect to the learned judge the items of evidence he took into account as negativing common intention overlooked two critical pieces of evidence which linked the second respondent to the crime. First, his close proximity to the drug and his conduct in fleeing when the police identified themselves. These are strong and cogent evidence which when thrown into the balance render the circumstances identified by the learned judge in the foregoing paragraph of little or no weight. Only the respondents can say what they were doing at the place in question. Only the first respondent as the person having control of the motorcycle can say how it came to be where it was. And it is only he who can explain how the offending exhibit came to be in the carrier of the motorcycle. And it is only the respondents who can say why they were behaving in a suspicious manner as observed by the police witnesses. Unfortunately, the learned judge did not adopt this approach. Nor did he ask himself the questions that naturally arise from the totality of the evidence.” [76] In the circumstance, it’s my finding that based on the direct evidence adduced by the prosecution, the accused had mens rea possession of the drugs and power to deal with the drugs at the time when he was detained because evidence shows that the drugs found on the footrest of the front passenger seat were in close proximity to him as he was seated on the driver’s seat and seen driving alone trying to escape from the police. [77] Further, it can be inferred from the facts and circumstances of this case that the accused had conscious knowledge of the drugs found near the footrest of the front passenger seat. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 20 [78] In the foregoing, it’s my finding that the prosecution has successfully established the element of possession for the charge based on the findings above. [79] The prosecution relies on the presumption of trafficking under Section 37(da)(xvi) DDA, 1952 based on the quantity of drugs having exceeded the minimum quantity of 50 grams under this Section, i.e. 707.40 grams. [80] The prosecution submits that an inference must be drawn that this large quantity of drugs must be for purposes of trafficking and not for personal consumption. [81] In Parlan Dadeh v PP [2009]1 CLJ 717, it was held by the Federal Court as follows: - “……….. It is the combined effect of all the surrounding circumstances that must be considered. Having addressed our minds to the cumulative force of the facts adduced by the prosecution, we are entirely satisfied that the learned judge was amply justified in holding that the accused had mens rea possession and that the case came within section 37(da) of the Act so that the accused was presumed to be a trafficker of the drug in question………” [82] Further in Arif Arhanan Che Udin v P.P [2022] 4 CLJ 1, the Federal Court held as follows: - “[15] Thus, where there is evidence, direct or circumstantial of the accused’s knowledge of the drug, thereby proving “possession”, the presumption of trafficking under s. 37(da) of the DDA must be invoked by the trial court as it is “a deduction which the law requires the trial court to make”. The court has no discretion not S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 21 to invoke the presumption once possession with knowledge or mens rea possession has been proved against the accused at the close of the prosecution case. By using the word “shall” instead of “may” and underscoring it by using the words “until the contrary is proved”, it is clear that Parliament intended the presumption to be mandatory.” [83] Finally, having subjected the evidence at the close of the prosecution’s case to a maximum evaluation, this Court found that the prosecution had made out a prima facie case against the accused for trafficking the drugs. The accused was accordingly ordered to enter his defence. EVALUATION OF THE DEFENCE CASE [84] The duty of the court at the end of a trial is set out in Section 182A of the Criminal Procedure Code, which reads as follows: - “182A – Procedure at the conclusion of the trial

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. [Emphasis added]” In Md Zainudin bin Raujan v. Public Prosecutor [2013] 3 MLJ 773, the Federal Court stated: - “At the conclusion of the trial, s. 182A of the Criminal Procedure Code imposes a duty on the trial court to consider all the evidence adduced before it and to decide whether the prosecution has proved its case beyond reasonable doubt. The defence of the accused must be considered in the totality of the evidence adduced by the prosecution, as well as in the light of the well – established principles enunciated in Mat S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 22 v. Public Prosecutor [1963] 1 MLJ 263 with regard to the approach to be taken in evaluating the evidence of the defence.” [85] As the presumption of trafficking was invoked against the accused, the onus is on the accused to rebut the presumption of trafficking. [86] In Abdullah Atan v PP & Other Appeals [2020] 9 CLJ 151, the Federal Court explained the role of presumption: - “The role of presumptions in the wider context of the criminal legal system may be simplified thus: where a statutory presumption is invoked to presume the existence of certain fact as being the ingredient of the offence, the onus then shifts to the accused to disprove the presumed fact on the balance of probabilities and to thereby exculpate himself from the charge. If he does so, he earns an acquittal. If he does not, he is guilty of the charge.” [87] It is trite law that the accused has to discharge this burden on the balance of probabilities as explained by Lord Diplock in PP v. Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89 on how a statutory presumption can be disproved: - “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a (sic) S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 23 fact’s being “disproved” there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that that fact does not exist. In their Lordships’ opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it, it is more likely than not that the fact does not exist. The test is the same as that applied in civil proceedings: the balance of probabilities.” [88] Please also see Neo Koon Cheo v Regina [1959] CLJU 64, where Ambrose J was of the view all that was required by an accused to rebut the presumption was to establish the probability of that which he was required to prove. [89] The accused elected to give evidence on oath. [90] The accused testified that he was detained by the police on 26.1.2021 whilst he was seated inside the rented motorcar. [91] According to the accused, at that juncture, he was under the influence of drugs and didn’t know where he was driving his car or what was going on. [92] The accused further testified that he only became conscious when he was at the Kluang Police Station. He knew that he was in Kluang because the police had informed him that he was being detained for a drug related case and drugs were found inside the motorcar driven by him. He didn’t know which police officer it was. [93] Thereafter, he was shown the drug case exhibits. The police told him that it contained drugs which was found inside the motorcar. The accused told the police that the packages found inside the S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 24 motorcar belonged to his friend called Azhar. Accused says he can identify these packages. [94] The accused further testified that he got to know Azhar from a nightclub in Singapore a few months before his arrest. [95] According to the accused, Azhar deals in traditional medicines and has requested that the accused to provide transportation for him to sell these medicines around the housing estates in the Johor Bahru vicinity, as Azhar is not familiar with the roads in that area. The accused states that in a month, he will drive Azhar six to seven times by renting a motorcar for the destinations requested by Azhar, for which he is paid RM300.00 per trip. [96] The accused further testified that Azhar always spoke about the traditional medicines and he believed it to be true. [97] The accused states that he will fetch Azhar from the CIQ Building in Johor Bahru, and after Azhar has completed his transactions, he will return Azhar to the CIQ Building so that Azhar may return to Singapore. The accused was unaware that the medicines brought by Azhar were drugs. [98] On the date of the incident, Azhar contacted him to pick him up from the CIQ Building in Johor Bahru. The accused arrived at 1.00 pm at the CIQ Johor Bahru and he was told by Azhar to bring him to a few locations in Johor Bahru city. [99] Before the accused was detained, Azhar told him to go to a house at Taman Sri Tebrau. The accused then testified that Azhar told him S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 25 to go around first whilst waiting for his arrival and when the accused was waiting for Azhar, he took drugs, was under the influence of drugs and was not aware of what was going on in the surroundings. [100] The next thing the accused knew was that he was detained at the Kluang police station. [101] The accused denies that the drugs found in his motorcar belonged to him and says that they belonged to Azhar. [102] The accused informed the police of Azhar’s whereabouts, after which Azhar was arrested in connection with the drugs found inside the motorcar and taken to the police station. Both he and Azhar were remanded. According to the accused, during the remand period, Azhar admitted to the police that the drugs belonged to him and that the accused was not involved in any criminal activity committed by Azhar. [103] Both the accused’s and Azhar’s blood samples were taken for DNA analysis at the hospital. [104] The prosecution did not call Azhar at the end of the prosecution’s case but they offered him to the defence. [105] The accused informed the Court that he wished to call Azhar as his witness. However, the prosecution was not able to secure Azhar’s attendance. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 26 [106] According to the prosecution, the police were unable to locate the whereabouts of Azhar Bin Sani, a Singaporean although efforts had been made. [107] Learned counsel for the accused submitted that the fact that Azhar Bin Sani is a Singaporean is not a good reason for not being able to secure his attendance by relying on the Court of Appeal’s decision in PP v Asnawi Yusuf [2012] 3 CLJ 41, wherein the Court of Appeal decided the reasons proffered by the prosecution for unable to trace Indonesian witnesses was untenable and indefensible. [108] Hence, based on the failure to make Azhar available as a witness for the defence, learned counsel for the accused submitted that an adverse inference must be drawn against the prosecution under Section 114(g) Evidence Act, 1950. In support of his submission, learned counsel for the accused relied on a few authorities. [109] Firstly, the decision in Salahuddin Orah v PP [2015] 1 LNS 778 wherein it was said by the Court of Appeal: - “Underlying this principle of a fair trial is the duty of the prosecution to ensure the attendance of a witness offered to the defence at the close of the prosecution’s case up until the completion of the trial. Any breach of this duty shall tantamount to a miscarriage of justice which renders the conviction of an accused person unsafe.” [110] Secondly, the decision of the Court of Appeal in Pragalathan Balakrishnan v PP (2018) 2 CLJ 420 wherein the Court of Appeal held as follows: - S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 27 “[19] If as the prosecution had told the trial judge that this witness cannot now be located, the prosecution could have at least provided the s. 112 CPC statement to the defence so that they could then have some opportunity to deal with it or even introduce it into evidence if the law permitted it. In this context, this court in Kobra Taba Seidali v. PP [2014] 2 CLJ 12 had occasion to hold that failure of the prosecution to produce the witness or hand over a copy of the witness statement to the defence to be used by the defence at the defence stage was fatal on the factual matrix of that case.” [111] Thirdly, the decision of the Court of Appeal in Luke Nnaemeka Ugwu v PP [2020] 4 CLJ 609, wherein the Court of Appeal held as follows: - “[38] In our view, in order to protect the integrity of the trial process, the prosecution must ensure that all witnesses offered, which the defence intends to call, are provided to the defence. In the event that for good reason the attendance of the witness offered cannot be procured, it is imperative for the prosecution to at least provide the s. 112 CPC statement to the defence so that if the circumstances so warrant, they could tender such statement for the court’s consideration.” [112] Lastly, to the decision of the High Court in PP v Dedy Saputra [2017] 1 LNS 1748 wherein it was held as follows: - “[53] Oleh itu, ia adalah didapati bahawa kegagalan pihak Pendakwaan untuk memastikan kehadiran kedua-dua saksi dan mengemukakan keduadua rakaman percakapan ini telah membangkitkan inferen yang bertentangan terhadap kes Pendakwaan di bawah seksyen 114(g) Akta Keterangan 1950 dan telah pun memperjudiskan Pembelaan Tertuduh secara S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 28 serius dan telah menimbulkan keraguan atas kebersalahan Tertuduh.” [113] Next, learned counsel for the accused also submitted that the accused had explained his conduct of escaping from the police by speeding the motorcar as required under Section 9 of the Evidence Act, 1950. [114] The law is trite that when witnesses were offered by the prosecution to the defence at the end of the case for the prosecution, it was the bounden duty of the prosecution to avail those witnesses to the defence. Please see PP v. Asnawi Yusuf (supra). [115] However, in my judgement, a careful reading of the authorities reveals that this legal principle cannot be considered in a vacuum and applied blanketly. [116] If the prosecution fails to fulfil the obligation to make the witness requested by the defence available, the Court must examine whether the evidence from this particular witness, in the present case Azhar, is material or crucial for the unfolding of the defence case, or whether it can assist the defence in raising a reasonable doubt regarding the prosecution’s case. [117] This is what was decided in Salahuddin Orah (supra), cited by learned counsel for the accused, it was held by the Court of Appeal as follows: - “[68] Be that as it may, we are of the view that this legal principle, like all other legal principles, cannot be considered in a vacuum and must always be considered in the light of the circumstances and S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 29 facts of a particular case, which the following analysis of the facts and circumstances of the three cases cited by learned defence counsel will reveal. [81] It is crystal clear from the above narration of the facts and the judgment that Kunalan Kandasamy, Asnawai Yusuf, and Mousoumeth Gholami Khaven were decided based on the prevailing facts and circumstances in those cases. These cases clearly showed that the principle regarding the duty of the prosecution to secure the attendance of an offered witness is only applicable if the witness offered is a material or crucial witness for the defence, in the sense that his/her evidence is either necessary in the unfolding of the defence’s case or can assist the accused in raising a reasonable doubt in the prosecution’s case, so that a failure to secure his/her attendance has prejudiced the accused in that it has deprived the accused of an opportunity to either establish his defence or to raise a reasonable doubt in the prosecution’s case. In such a circumstance it can be said that the accused has been deprived of a fair and just trial which ultimately caused a miscarriage of justice to render his conviction unsafe.” [118] Now, reverting to the facts of the present case, the accused’s defence in a nutshell is that the drugs belonged to Azhar and that he only provided transportation around the vicinity of Johor Bahru city for Azhar to sell his traditional medicines. According to the accused, he is paid RM300.00 per trip, and in a month, he makes six to seven trips for Azhar. The accused claims he didn’t know that the case exhibits found in the motorcar were drugs, as they were brought by Azhar and belonged to him. [119] However, when the accused was cross-examined by the learned Deputy Public Prosecutor, the accused admitted that he knew there S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 30 were drugs inside the motorcar whilst he was driving and was chased by the police. His evidence during cross-examination is reproduced below: - “S : Kita tengok kepada perenggan 10 dan kejadian kejar mengejar antara kamu dengan polis. Setuju tak masa kejar mengejar itu dadah berada dalam kereta bersama kamu? J : Benar. S : Mr. Tan, tadi masa tanya soalan, kamu beritahu kamu setuju dadah ada bersama kamu semasa kejadian kejar mengejar. Dadah tersebut berada di bahagian penumpang atas alas kaki penumpang bahagian hadapan sebelah kamulah macam driver seat, dadah kat sebelah kamu, betul? J : Saya setuju.” [120] Furthermore, I find the accused version to be improbable. Firstly, although the accused testified that he often provides transportation services for Azhar in a month but he does not know Azhar’s full name and at which nightclub in Singapore he had met Azhar. Further, he also doesn’t know what type of traditional medicine Azhar deals with although he says Azhar often talks to him about it. [121] Neither was the accused able to produce proof of any payment he received from Azhar for the transportation service he provided. [122] Next, if the accused version that the drugs found inside the motorcar belonged to Azhar is true and the accused fetched Azhar from the CIQ in Johor Bahru, how did Azhar bypass the Immigration and Customs authorities in Singapore and Malaysia carrying the drugs before arriving at the CIQ in Johor Bahru? S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 31 [123] The accused also further testified that a man called Ah Siang, known to him, can confirm his friendship with Azhar. However, the accused failed to call Ah Siang to corroborate his version that Azhar uses his transportation services to sell traditional medicines. [124] The evidence led by the prosecution shows that the accused was found alone in the motorcar he was driving and in close proximity to the drugs found on the footrest of the front passenger seat. [125] Further, the accused also did not stop when PW1 signalled him to stop his motorcar. The accused sped off by driving for about 100 kilometres to run away from the police. He was trying to avoid being stopped by the police and the motorcar being inspected. Even if the accused was under the influence of drugs, this is not a good reason for him not to stop his motorcar when the police asked him to stop. [126] According to the investigating officer (PW7), Azhar Bin Sani was detained and questioned. However, the investigations revealed that the drugs did not belong to him. [127] The fact that Azhar Bin Sani was detained and investigated is sufficient to show that the prosecution has rebutted the Alcontara Notice raised by the accused. [128] There is also no attempt by the defence to request Azhar’s statement and to introduce the same by recalling PW7. [129] In my judgement, based on the above evidence and the accused admission that he knew the presence of the drugs inside the motorcar, I am unable to see how is Azhar’s evidence is material or S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 32 crucial for the unfolding of the defence case or can assist the defence in raising a reasonable doubt in the prosecution’s case. [130] The defence too has not shown the importance of Azhar as their witness and the relevancy of his evidence, considering the police investigations having found that the drugs do not belong to Azhar. [131] A mere assertion of wanting to call Azhar as the defence witness without more, i.e. the importance of his evidence, is not enough for the defence to invoke an adverse inference against the prosecution for not being able to secure the attendance of Azhar. [132] In this circumstance, based on the overall evidence, there is no good reason to invoke adverse inference against the prosecution. [133] From my observation of the accused’s demeanour, I do not believe his version that Azhar deals with traditional medicines and he provides transportation service for Azhar to deliver these medicines. [134] The front cover of P19 featured a picture of a Chinese teapot with cups and the words “Chinese Pin Wei”, indicating the contents to be Chinese tea. It is needless to say that the modus operandi for drug peddlers these days is to conceal drugs inside neatly packaged Chinese tea packets. [135] Concerning the point that the accused has discharged the explanation about his conduct in running away from the police when he was asked to stop under by PW1 as required under Section 9 of the Evidence Act, 1950, I would refer to the decision of the Federal S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 33 Court on Sections 8 and 9 of the Evidence Act, 1950 in Parlan Dadeh v. PP [2009] 1 CLJ 717 where it was held on follows: - “[36] The law relating to evidence of conduct is thus patent. If there is no evidence to show that the conduct is influenced by any fact in issue or relevant fact as required by s. 8 then it is not admissible as it would then be an equivocal act justifying inferences favourable to the accused being drawn. If it satisfies the requirement of s. 8 it is admissible. It must be observed that the degree of proof required to establish evidence of conduct would depend on the nature of the conduct. Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like the accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required. Once admitted the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it inadmissible. The onus is on the accused to explain his conduct pursuant to s. 9. Such explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstance (see R v. Stephenson [1904] 68 JP 524). The onus may be discharged even in the course of the case for the prosecution, for example, by way of cross-examination of relevant witnesses. If not so done it can be discharged only at the defence stage. However, the evidence admissible under the section must be confined to what is necessary for the purposes enumerated. Illustration (c) to s. 9 explains the operation of this principle. It provides that when A is accused of a crime the fact that soon after the commission of the crime he absconded from his house is relevant. But the fact that at the time when he left home he had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that he left home suddenly. The details of the business on which he left, however, are not relevant, except in so far as they are necessary to show that the business was sudden and urgent. If S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 34 the explanation is accepted by the court then the inference arising from the conduct is rebutted. If it is not accepted or if the accused does not explain his conduct the inference remains unrebutted.” [emphasis added] [136] In my judgement, I find the accused’s explanation that at the time of the incident, he was under the influence of drugs and this is why he sped off when was asked to stop by the police is not acceptable because it is a lame excuse and not reasonable given this Court’s finding that the accused had knowledge of the drugs inside the motorcar which he was driving. [137] Based on the reasons stated above, it is my finding that the accused version that the impugned drugs found inside the motorcar he was driving belonged to Azhar is not probable and true. In my judgement, the accused's defence is not probable. [138] Therefore, I find the accused has failed to raise a reasonable doubt as to possession of the impugned drugs and failed to rebut the statutory presumption of trafficking on a balance of probabilities under section 37(da) DDA in respect of the charge. [139] After considering all the evidence, I find that the prosecution had successfully proven their case in respect of the charge beyond a reasonable doubt pursuant to Section 182A (2) CPC against the accused. [140] I therefore find the accused guilty of the charge of trafficking under Section 39B(1)(a) DDA and convict the accused. S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 35 SENTENCE [141] The prosecution sought the death sentence citing the seriousness of the offence. Learned counsel for the accused urged the Court not to impose the death sentence by mitigating that the accused is 49 years old, a first offender, a bachelor, works as a driver, has an aged mother who is sickly and has cooperated with the police. [142] There is no longer any condition to be satisfied before the Court may exercise its discretion not to impose the death sentence. In the circumstances, I exercised my discretion not to impose the death sentence and sentenced the accused to a term of life imprisonment, which is defined as 30 years under section 3 of the Criminal Justice Act 1953. The sentence was ordered to run from the date of arrest. It was further ordered that the accused undergo a minimum of twelve (12) strokes of whipping. Dated this 20th June 2025 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judge High Court of Malaya Muar Johore Darul Ta’zim S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 36 Counsels: For the Accused : Mohd Fazaly alu Bin Mohd Ghazaly For the Deputy Publlic Prosecutor : Nur Sulehan binti Abd Rahman Solicitors: For the Accused Messrs The Law Chambers of Fazaly Ali Advocates & Solicitors No. 36C-1, Jalan Kolam Ayer Taman Kolam Ayer 80100 Johor Bahru Johor [Ref. No. : LCFA/FA/CR/369/7-2022] For the Deputy Public Prosecutor Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Daerah Muar Mezzanine Floor Muar Trade Centre 16, Jalan Petrie 84000 Muar Johor [Ref. No. : ] S/N ov7z5DZ0K0R2awphH4bFw June 20, 2025 37 Hearing Date : 11th October 2022, 22nd April 2024, 24th April 2024, 1st July 2024, 3rd July 2024, 1st August 2024, 22nd September 2024, 23rd September 2024, 20th October 2024, 30th December 2024, 9th January 2025, 28th February 2025, 27th March 2025, 23rd May 2025 Decision Date : 20th June 2025 S/N ov7z5DZ0K0R2awphH4bFw