It was upon Monkey’s repeated phone calls (3 calls) that the accused agreed to collect the parcel at the said courier service office. [99] It must be noted that this fact was never raised by the accused during the prosecution’s case. Even though the name of Zhang Chang Hui was mentioned during the cross-examination of PW9 (i.e. the Investigating Officer of the case), it was not suggested that this Zhang Chang Hui and Monkey was the same person. There was also no mention what was the role of this Zhang Chang Hui, vis-a-vis the presence of the accused at the City Link office and subsequently collecting the said parcel. It is settled law that the failure of the accused to put his defence to the prosecution at an early stage during the prosecution’s case would render his defence as an afterthought. Also, this line of defence would be considered as the accused’s recent invention to suit his defence and should be disregarded (see Megat Halim Megat Omar v Public Prosecutor [2009] 1 CLJ 154). [100] Be that as it may, contrary to the accused’s claim that the handphone number 019-8868255 was the handphone number of Monkey, the investigation that was carried out by PW9 revealed that the said handphone number belongs to one Misnah bt Saimin. Further, during cross-examination of PW9, it was suggested that the phone number 019- 8868255 belong to one Tiong Chiong Hei. It would appear that the accused was unsure of who actually called him on that day. [101] Another contradiction in the accused’s evidence relates to the even that took place when he went to collect the said parcel. The accused testified that while at the City Link office, he had shown the consignment note which was sent to his WeChat and stored in the handphone to the staff of City Link, most probably PW7. Again, this fact was not raised during cross-examination of PW7. Be that as it may, according to PW7, the accused told him that he wanted to collect a parcel under the name of Jimmy Lim and that he (PW7) then requested to the accused’s IC for verification. PW7 never said that the accused showed his handphone and he was never cross examined on this i.e. that the accused showed the tracking number from the accused’s handphone. Further, the accused specifically told PW7 that he is collecting the parcel on the name of Jimmy Lim and not Monkey or Tiong Chiong Hei. I find that the accused’s evidence is unbelievable.” [24] The learned trial judge also found that the character identified as Monkey was a fictitious person purposely created by the appellant to suit his defence. The learned trial judge said as follows: “[102] From his testimony, it also appears that the accused does not have any recollection of his friendship with Monkey. He does not know how long that he had known Monkey. He also cannot remember when was the last time Monkey contacted him before the day he was arrested. He had also never requested for the address of Monkey. In fact, DW1 told the Court during cross-examination that he does not know the full/ real name of Monkey nor does he know where Monkey lives. [103] In my opinion, this evidence is inconsistent with the alleged friendship between the accused and Monkey. At the very least, the accused must have known of Monkey’s real name. This is because, according to the accused, he knew Monkey since he had dropped out from school in Sibu. Hence it is quite unbelievable when he claimed that he had no knowledge about Monkey. In my opinion, the accused is manufacturing his evidence to suit his defence. [104] I also find that the accused’s evidence that Monkey had been insisting him to collect the said parcel unconvincing. There is no evidence of how close was the relationship between the accused and Monkey that warrant Monkey to continuously insisting for the accused to collect the parcel. Hence, it is quite unreasonable to believe that Monkey could keep on calling the accused asking him to collect the said parcel.” [25] At the close of the defence case, the learned trial judge came to a finding that the appellant had failed to cast any reasonable doubt on the prosecution’s case and consequently ruled that the prosecution had successfully proved its case beyond reasonable doubt on the charge preferred against him. Issues raised by the defence in this Appeal [26] The main ground of appeal by the appellant as per his Petition of Appeal was that the learned trial judge had erred in law and fact in concluding that the alleged contemporaneous reactionary conduct of the appellant such as in tearing off part of the consignment note, throwing P8 onto the floor as well as in trying to run away when he was approached by the Customs officers have constituted or capable of proving “custody and control” of P8 on the part of the appellant from the time he received the same from PW7 until the time he was arrested at the place of incident. [27] It was also argued by the defence that such contemporaneous reactionary conduct of the appellant should not have been viewed solely subjectively, given the circumstances of the case as the same was capable of multiple inferences, not just the singular inference purportedly arrived at by the learned trial judge. The learned trial judge had failed to address his mind to other possible and/or favourable inference(s) that were equally consistent with the appellant’s innocence. [28] Thus, the learned trial judge erred in law and fact in failing to direct his mind sufficiently that the appellant in the given circumstances of the case only had momentary, passive possession of P8 and ought to have directed his mind as to the pertinent issue as to whether or not the appellant was for all intents and purposes an innocent carrier thereof. [29] That the learned trial judge had thus erred in law in finding that the appellant had knowledge as to the contents of P8 when he ought to have considered the legally accepted definition as to what would tantamount to “knowledge” and/or “custody and control” and/or “possession” as per enunciated in the case of Warner v Metropolitan Police Commissioner (1968) 2 All ER 357 as per endorsed by Toh Su Kuan v PP (2005) 3 CLJ 740. [30] That the learned trial judge erred in law and fact in failing to direct his mind sufficiently, if at all that for all intents and purposes the evidence of the purported chemist, PW5 pertaining to her purported analysis or testing of the impugned drugs was defective and unsafe to be relied upon as the same had breached the United Nation’s Guidelines on Analysis of Dangerous Drugs, and in particular, the ratio decidendi in PP v Nolose Albert Raleshome (2014) 8 CL] FC. [31] That the learned trial judge erred in law and fact in his finding of facts that the element of “trafficking” has been established so as to form a prima facie case against the appellant. Such findings, if at all, had in fact been rebutted sufficiently by the appellant’s subsequent defence on a balance of probability. [32] That the learned trial judge erred in law in failing to exclude the purported information allegedly received by PW8 pertaining to certain drug trafficking activities in Kuching which led to the subsequent arrest of the appellant as it was not only hearsay, thus inadmissible but also highly prejudicial to the appellant when such alleged information was relied upon to form the corner stone of the prosecution’s case. The findings of this Court [33] On the learned trial judge’s finding that the appellant had custody and control of the impugned drugs in parcel P8, we find no appealable error committed by him based on the evidence presented before him showing that the appellant was caught in actual possession of the drugs inside P8. There was no other customer at the collection counter of the City Link office at the time when the appellant came to pick up P8. Most importantly, PW3 saw the appellant collecting the said P8 from PW7 before exiting the said office. Further, the appellant’s act in tearing off and throwing away the torn-off part of the consignment note onto the floor indicates that he had the control over the said parcel as well as the power to deal with it at the material time. [34] The learned trial judge acknowledged that the torn-off part of the consignment note appears to be missing but he was of the view that the same is irrelevant simply because the appellant was seen to have collected P8 and taken it out of the City Link office. He was carrying P8 when he was stopped by the Customs officers’ raiding team. We agree with the learned trial judge that this is a non-issue as the absence of the torn-off part of the consignment note is not fatal to the prosecution’s case. [35] The appellant’s act in tearing off and throwing the torn-off part of the consignment note was seen by Customs officers in the raiding team. When the appellant was approached by the same raiding team led by PW8 who introduced themselves as Customs officers, the appellant threw P8 and tried to run away which indicates the presence of knowledge of the contents of P8. [36] The learned counsel for the appellant took issue with the evidence of PW3 when she was silent in her witness statement as to whether any of the members of the raiding team had shouted the word “Kastam” when they approached the appellant. In her cross-examination, PW3 was alleged to have embellished her evidence by adding further evidence to the effect that the appellant threw the package to the side after hearing the word “Kastam”. [37] In our view, the witness in any trial should not be restricted to the evidence in the witness statement as she or he can be required to give further evidence to clarify or even to give additional evidence, if at all it deems necessary apart from the evidence already prepared in the witness statement. In the present case, PW3’s answer pertaining to the shout of the word “Kastam” stems from the question posed by the learned defence counsel and her answers cannot be construed as if she was trying to embellish her evidence to make out a case for the prosecution. Even if there was no evidence coming from PW3 regarding someone in the raiding team who had shouted “Kastam”, there was sufficient evidence from the prosecution’s other witnesses who had testified otherwise particularly PW8 in his witness statement stating that the appellant threw the parcel which was held by him and attempted to run away after he introduced the raiding team as Customs officers. PW4 in his oral evidence corroborated PW8’s evidence that when PW8 says “Kastam”, the appellant threw the parcel and tried to run away. [38] We do not agree with the contention of the learned counsel for the appellant that there exist two sets of evidence when the learned trial judge had made a specific finding that the conduct and the act of the appellant in throwing P8 on the floor and trying to run away after the raiding team introduced themselves as Customs officers can be inferred as someone who had knowledge on illegal drugs contained in it. The learned trial judge rejected the suggestion made by the defence that the appellant was ambushed by a group of strangers and in the process, P8 slipped from his grip and dropped on the floor. [39] We had no reason to disturb the learned trial judge’s findings of facts on possession of the drugs by the appellant premised on his appreciation of the evidence before him. Further, we are of the view that such conduct of the appellant was admissible under s. 8 of the Evidence Act and must be viewed against the background of the other evidence. The conduct or the reaction of the appellant in the circumstances of the case was inconsistent with the act of an innocent person. There was no necessity to flee and evade the arrest unless he knew that the parcel he was carrying contained illegal item. Thus, based on the factual matrix of the case, we agree with the learned trial judge that the appellant had actual possession over the drugs found inside P8. [40] The learned trial judge findings on the conduct of the appellant after he was approached by the Customs officers are as follows: “[34] In the instant case it was established that the accused had thrown the said parcel when the raiding team tried to stop him. This happened when the accused stepped out of City Link office and PW8 approached him and introduced his team “Kastam”. The accused also tried to escape but the raiding team managed to subdue him. [35] The act of the accused throwing the said parcel to the floor was seen by PW3, PW4 and PW7. The same witnesses also saw the accused trying to run away from the scene. In this respect it was suggested to PW4 and PW8 by learned counsel that while the raiding team was in the process of apprehending the accused, he had lost grip of the said parcel causing the said parcel to fall to the ground. [36] In my judgement PW3, PW4 and PW8 gave a credible evidence on what transpired outside the City Link office. They saw the accused threw the said parcel after PW8 shouted “Kastam”. In my opinion the sequence of event before the accused was seen throwing the said parcel make PW3, PW4 and PW8’s evidence more probable. The act of throwing the parcel is the probable reaction by someone who is carrying illegal item when realizing that the law enforcement officers are checking on him. [37] In my opinion, the fact that the accused threw the said parcel to the floor after hearing the raiding team shouted “Custom” and tried to run away, shown that he knew that the parcel he was carrying contain illegal item. While this fact alone may not be sufficient to infer knowledge, the cumulative effect of the evidence adduced by the prosecution irresistibly show that he has the knowledge of the drug. In the context of the present case, the fact as proven from the testimony of PW3, PW4 and PW8 show that the accused had the knowledge that the parcel he was carrying contain dangerous drugs and I so rule. In the circumstances I rule that the prosecution has proven the element of knowledge through direct evidence.” [41] The learned trial judge had referred to the correct authorities to determine the element of knowledge which is very often a matter of inference and it varies from case to case. He cited the Federal Court’s case of Parlan Dadeh v Public Prosecutor (2009) 6 MLJ 19 and Public Prosecutor v. Badrulsham bin Baharom [1988] 2 MLJ 585, where the Court can resort to draw inference from the evidence of the conduct of the appellant to prove the element of knowledge in order to establish possession. [42] On the issue of whether PW5’s evidence regarding the analysis conducted by her on the impugned drugs was defective or unsafe to be relied upon as the same had breached the United Nation’s Guidelines on Analysis of Dangerous Drugs, and in particular, the ratio decidendi in PP v Nolose Albert Raleshome (2014) 8 CLJ FC, this issue has been addressed by the learned trial judge in his grounds of judgment. Reading from the submission of the learned counsel for the appellant, the attack on the analysis conducted by PW5 are two-pronged. First, the net weight of the Methamphetamine should only be obtained after proper chemical analysis and not before or during. Second, the crystalline substance should not be homogenised during the analysis. The learned trial judge said as follows: “[54] Be that as it may, in his submission, learned counsel for accused submitted that PW5 had breached the United Nation Guidelines “by homogenizing the crystalline substance not before, not after but during analysis of the same”. Citing the case of Public Prosecutor v. Pau Chu Thong [2017] 1 LNS 953 and Public Prosecutor v. Chan Beng Hai (Criminal Trial No. BTU-45A- 114-2019, it was submitted that such breach was fatal to the prosecution’s case. [55] The issue here is whether the crystalline substances were homogenized from before or during the analysis. The issue arises from the words “Bahan tersebut di atas telah dijadikan serbuk yang homogen semasa dianalisis” appearing at paragraph 3 of the chemist report (exhibit Pl6). However, in her witness statement, PW5 stated that “(T)he content (crystalline substance) that had been removed from the plastic was blended to make it *homogenized (after blended, the crystalline substance has changed to powder substance)...” In this respect, I had the opportunity of addressing the same issue in the case of Public Prosecutor v. Buhairi bin Napi and others cases jointly tried in Criminal trial no. KCH-45A-17/8-2018, KCH- 45A-18/8-2018 and KCH-45A-19/8-2018 as follows: “[90] The issue here is whether the crystalline substances were homogenized before or during the analysis. First and foremost, it must be stated here that when the chemist is called to testify his oral evidence become his substantive evidence which is the best evidence with regard to the analysis. The chemist report may be produced as corroborative evidence (see Muhammed Hassan v. Public Prosecutor [1998] 2 MLJ 273 and Saw Thean Teik v. R [1953] MLJ 124). [91] In my opinion, by adopting their respective report in their witness statements, it does not change the fact that the said report remains as corroborative evidence whereas their witness statements are their primary evidence. In their respective witness statements stated that “...9. The crystalline substance that has been removed from the transparent plastic packets were blended to make it homogenized (after blended, the crystalline substances have changed to powder substance). This was done before the colour test. Hence, it is obvious that the said crystalline substances were homogenized before the chemist commenced their analysis. [92] Further, the case of Public Prosecutor V. Nolose Albert Raleshome [2014] 8 CLJ 689; cited by both learned counsel and the learned Deputy, opined that: “[23] Thus we agree with the learned Deputy Public Prosecutor’s submission that, reasonable conclusion as to what was written by PW3 in P9: “Bahan tersebut di atas telah dijadikan serbuk yang homogeny semasa di analysis” must be taken to mean that the substance was homogenized before the test was carried out. The word “telah” in P9 supported the oral evidence of PW3 that the substance was homogenized before the test was carried out.” [93] Similarly, in the instant case, the word “telah” employed by the two chemists in their report shows that the crystalline substance was homogenized before the analysis.” [56] The challenge on the evidence of the chemist in this case is similar to the Buhairi’s case. Based on the fact of the present case, I find no reason for me not to follow my earlier ruling to the present case. In my opinion, when PW5 stated that “the substance was homogenized during the analysis” it must be taken that it was done before she carry out the colour test. In fact in the witness statement, PW5 stated that the crystalline substance was “blended” after she had taken the weight of the crystalline substance. She then stated that thereafter she “performed the following tests” (i.e colour test). Hence, I rule that the finding of the chemist is reliable.” [43] In addition, paragraph 11 of PW5’s witness statement (“WSPW5”) clearly stated that the crystalline substance had been homogenised before the analysis which reads, “…the content (crystalline substance) that had been removed from the plastic was blended to make it homogenized (after blended, the crystalline substance has changed to powdery substance). Homogenized (Homogenization is the process to ensure that crystalline substance is evenly mixed up well). PW5 later performed a colour test after the homogenization process in order to detect the type of active ingredient (drug) contained in the crystalline substance followed by GCMS test and GC-FID test. Based on all the tests, PW5 concluded that the crystalline substance in three plastic bags containing 2320.5 grams of Methamphetamine and Methamphetamine is listed in the First Schedule of the DDA 1952 and corroborated by her chemist report i.e. P16. [44] There is therefore no basis for the appellate Court to disturb the finding of facts based on the evidence given by PW5 in the absence of any rebuttal evidence by another chemist or expert witness (see Munusamy Vengadasalam v. PP [1987] 1 MLJ 492). [45] On the issue of whether the element of trafficking has been established, the learned trial judge has made a finding of fact that the said drugs were packed inside a transparent plastic packet before being kept inside “Guanyinuang” tea packages. The said drugs were ingeniously concealed inside the said packages in such a way so as to avoid detection by the enforcement agency. The total weight of the drug found in the said parcel was 2302.5 gm which is more than 46 times the minimum weight of 50 gm which would trigger the presumption of trafficking under section 37 (da) of the DDA. This led to the finding by the learned trial judge that the quantity of drugs was too large for one personal consumption and the appellant was carrying the drugs for the purpose of trafficking instead, within the provision of section 2 of the DDA (see Ong Ah Chuan v PP [1981] 1 MLJ 64). [46] The learned counsel for the appellant also contended that the learned trial judge should not rely on the evidence regarding the purported “information” received by PW8 on 20.2.2019 from someone unidentified pertaining to certain drug trafficking activities in Kuching which had purportedly led to the subsequent arrest of the appellant as it was hearsay and highly prejudicial to the appellant. [47] Upon careful examination of the appeal records, we find that contrary to the appellant’s contention, there was no evidence that the trial judge had considered the information received by PW8 regarding the purported drug activity in Kuching on 20.2.2019 as the basis for establishing the appellant having possession and trafficking of the said drug in P8. Instead, the prosecution presented this information to demonstrate that, based on the tip-off received by PW8, a team was assembled to apprehend a person who would collect P8 at the City Link office. The appellant was not prejudiced as the information does not contain any details about the appellant's identity. This appellant’s contention is therefore devoid of merit. [48] As to the introduction of the character named Monkey in the defence, we concur with the learned trial judge’s findings that if Monkey had been a friend since school as the appellant had claimed, he should have known of Monkey’s real name and his whereabouts since Monkey was also alleged to be the one who instructed him to collect the said parcel P8 in the first place. [49] For the avoidance of doubt and at the risk of repetition, as found by the learned trial judge, Monkey is a fictitious name. The name of Monkey was never raised by the defence during the prosecution’s case except for one Zhang Chang Hui when Ridzwan bin Jumin (PW9) i.e. the investigating officer was cross-examined by the learned counsel for the defence. However, it was not suggested to PW9 by the defence that Zhang Chang Hui and Monkey were the same person. [50] Although the appellant claimed that the handphone number 0198868255 belonged to Monkey when the latter called him to collect the parcel, it was suggested to PW9 that the same number belonged to one Tiong Chiong Hei. The investigation that was carried out by PW9, however, revealed that the same handphone number 019-8868255 actually belonged to one Misnah bt Saimin. [51] The learned trial judge concluded that if the appellant’s allegation was true that Monkey had instructed him to collect the parcel using the handphone number 0198868255, the same number could not have belonged to someone else as alleged. The learned trial judge made a finding that the appellant’s evidence that Monkey had been insisting on him to collect the said parcel P8 was not plausible and was too incredible to be believed. [52] We find that the reasoning given by the learned trial judge is sound which warrants no intervention by this Court. Further, we find that the learned trial judge had given his utmost consideration of the defence case in coming to his findings. Conclusion [53] We find no error made by the learned trial judge in his findings of facts and came to a conclusion at the end of defence case that the prosecution had proven its case beyond a reasonable doubt, found the appellant guilty of a drug trafficking charge, and convicted him. The appellant had failed to cast a reasonable doubt as to his guilt. [54] In addition, we find that the appellant had failed to dislodge the legal presumption of factual nature, namely that he was a drug trafficker, on the balance of probabilities. [55] For all the above reasons, we unanimously upheld the learned trial judge’s decision and dismissed the appellant’s appeal on conviction. [56] As regards to sentencing, upon hearing the parties on the proper sentence to be meted out in the light of Act 846, we are minded to commute the death sentence imposed by the learned trial judge to 30 years imprisonment with 12 strokes of whipping. The imprisonment term shall take effect from the date of the arrest. Dated: 4th February 2025 -sgd- (ALWI ABDUL WAHAB) JUDGE COURT OF APPEAL, MALAYSIA For the Appellant/Accused: Mr. Orlando Chua [Messrs. Wong, Orlando Chua & Kuok Advocates] For the Respondent/Prosecution: Tuan Afzainizam Abdul Aziz [Deputy Public Prosecutor,