The trial judge erred in his finding that there was common intention between both appellants. [14] Further, it was the contention of counsel for the 2nd appellant that the trial judge had the discretion to sentence the appellants to life imprisonment with 15 strokes of whipping instead of mandatory death sentence if the appellants satisfy the circumstances under section 39B(2A)(a) and (b) or section 39B(2A)(c) and (d) of the DDA 1952. Our deliberation and decision The issue of actual possession of the drugs [15] It is trite law that the prosecution can establish the element of possession by direct or circumstantial evidence which is termed as 10 actual possession or by the assistance of the presumption under section 37(d) of the DDA which is known as presumed possession. This presumed possession is rebuttable on the balance of probabilities. [16] Returning to the issue of actual possession, it is apposite to refresh our memory to the basic principle in establishing actual possession where the element of custody or control and knowledge must exist which have to be proven by the prosecution. This has been explained by high authority including the Federal Court case of Ibrahim Mohammad v PP [2011] 4 CLJ 113 as follows: “the law is well settled that having only custody or control over the said drugs is insufficient to establish “possession”. The physical act of custody or control must be accompanied with evidence that the accused had knowledge of the said drugs. In the absence of any statutory presumptions, knowledge has to be proved either by direct evidence or circumstantial evidence. Mere knowledge alone without exclusivity of either physical custody or control or both is insufficient in law to constitute possession let alone trafficking.” (emphasis added) [17] Further, the meaning of possession had been dealt with by Thomson J in an old case of Chan Pean Leon v PP [1956] 1 MLJ 237 where he said this: 11 “‘Possession’ itself as regards the criminal law is described as follows in Stephen’s Digest (9th Ed page 304). A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as the owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in the case of need” (emphasis added) [18] Reverting to the present case, the pertinent established facts accepted by the trial judge were that both appellants went to SP4’s house and hired the boat from SP4, the boat was a small boat or sampan, SP4 did not leave any bag in the boat when it was rented to the appellants, the appellants were in the boat for about 9 hours and both appellants at one point of time had noticed the bag in the boat before the marine police arrived. [19] Premised on the established facts mentioned above, the appellants clearly were so situated with respect to the impugned drugs and can deal with it to the exclusion of others. [20] The close proximity of the appellants with the drugs is a relevant fact that can establish actual possession as explained by this court in the case of PP v Karim AB Jabar [2008] 5 CLJ 173 where it was held as follows: 12 “[4] …... The proximity of the respondent to the drugs at the front passenger seat is a fact relevant to establish actual physical possession. [5] In Public prosecutor v Foo Jua Eng [1965] 1 LNS 137, the accused was charged with assisting in carrying on a public lottery. The evidence showed that the accused had been found by the police in a room, seated about three away from a dressing table on which the relevant exhibits were found. The Magistrate acquitted the accused. The prosecution appealed. In allowing the appeal, Raja Azlan Shah J (as His Royal Highness then was) said this: “With regard to the mental element, the learned Magistrate rightly directed his mind that knowledge or consciousness would depend on the surrounding circumstances. However, he failed to direct his mind adequately on the facts. He directed his mind to the circumstances when the respondent tried to close the door on the PW1. But he failed to consider the other circumstance which, taken together, may well be that the element of possession was proved. The circumstance is the physical proximity of the respondent to the exhibit in question. [6] So too here, the learned judge having accepted the prosecution’ evidence as to the finding of the drugs, the identification of the police officer and the scuffle, failed to direct himself as to the proximity of the drugs to the respondent. Indeed, nowhere in his judgment, did the trial judge address his mind to this fact. There is the added circumstance that the respondent was driving the car from one point to another with the proscribed drugs in it.” (emphasis added) [21] It is also settled principle of law that knowledge can only be proved by direct inference from surrounding circumstances. (see PP v Badrulsham Baharom [1988] 2 MLJ 585; Roslan Sabu v PP [2006] 5 13 MLJ 244). In the present case based on the totality of evidence as alluded to earlier and the fact that both appellants did not take any action to check the bag when they saw it before the marine police arrived, showed that the appellants had knowledge of the impugned drugs. [22] Further, although the drugs were in the bag and securely wrapped with newspaper which make them hidden from view, it does not mean that inference of knowledge cannot be made by the trial judge. This had been explained by the Federal Court in Public Prosecutor v Abdul Rahman Akif [2007] 5 MLJ 1 as follows: “[17] Therefore, the presence of the three packages in the car without plausible explanation from the respondent could give rise to a strong inference that he had knowledge that the packages contained drug or thing of similar nature (see also Lim Beng Soon v Public Prosecutor [2000] SLR 589). We further agree with the prosecution that the fact that the drug was found wrapped in newspaper is no ground for saying that an inference could not be drawn against the respondent that he had requisite knowledge...” (emphasis added) [23] Here, the trial judge had made his finding of fact based on credibility of witnesses that the appellants had actual possession of the drugs in the said boat. The facts showed that the appellants had the control, custody and knowledge of impugned drugs. We also find that the finding of the trial judge is supported by evidence and as such we have no compelling reason to interfere with the trial judge’s finding. 14 [24] In this regard, it is instructive to make reference to the Federal Court case of Lee Ah Seng & Anor v PP [2007] 5 CLJ 1 which held as follow : “the approach to be taken by the appellate court when dealing with a trial’ court assessment of credibility of witness is well established by high authorities. The credibility of a witness is primarily for the trial judge. An appellate court should always be slow in disturbing such findings of fact arrived at by the judge who had audio-visual advantage of the witness, unless there are substantial and compelling reasons for disagreeing with the finding.” (emphasis added) [25] In the circumstances, the contention by counsels for the appellants that actual possession had not been proved by the prosecution is untenable. The trial judge’s failure to appreciate the defence’s case [26] Counsel for the 1st appellant contended that the trial judge had failed to appreciate the defence’s case. However, having read the grounds of judgment of the trial judge, we find that the trial judge had analysed and considered the defence’s case extensively from paragraphs 79 to 131 and made his finding that the defence has failed to rebut the presumption of trafficking under section 37(da) and had also failed to raise a reasonable doubt on the prosecution’s. 15 [27] The trial judge had also gave his reasons for his findings with regard to the defence’ case as set out at paragraphs 115 to 131 of the grounds of judgment which are as follows: “[115] The drugs found in the said bag was analysed to be methamphetamine weighing 5,496g nett. This amount is many times over the statutory minimum prescribed under s 37 (da) of the DDA. Common sense will dictate that the street value of such a large amount of drugs will be quite significant. [116] It is not in any way probable for any reasonable person to have left the bag containing a high value of drugs unattended in the boat moored in an open jetty easily accessible to others. Such an act will run major risk of such a ‘prized possession’ being irretrievably lost. [117] The last place for anyone else to store something with the kind of weight and value of drugs would have attracted would be in the boat moored in an open area freely accessible to the public which could be hired out and taken out to sea at any time. [118] All the circumstances therefore pointed to the accused persons having possession and knowledge of the bag and the drugs contained in the said bag. [119] The first accused testified that he went fishing three times a month with the second accused and with other friends of his. The obvious purpose for him in saying so was no doubt to portray the activity was a common habit of his and therefore the fact that he was fishing on the day of the arrest was not something unusual. 16 [120] In fact, the crux of the defence case is that they did not know about the existence of the bag when they took the boat because their only intention that day in hiring the said boat was to go fishing. When they noticed the bag, they ignored it because they assumed it belong to someone else. [121] During the course of cross-examination however, the first accused agreed when it was suggested to him that he had not told this to the police during investigations. [122] The response of the first accused when asked why not, was that the police had never asked this matter of him. The omission of the first accused to reveal the matters of such importance and therefore central to the defence would lay it open to the attack by the prosecution that the defence was an invention and afterthought. Indeed, this was what was contended by the prosecution. [123] Under the circumstances, I find that if the matters essential to the defence were true, it would stand to reason that the first accused would have informed the police without being prompted or asked. The justifiable conclusion from this omission is that the defence was a mere afterthought. [124] The second accused testified that he normally went fishing on the weekends. However, when it was suggested to him by the prosecution that the day of the arrest was in fact a weekday, the second accused merely responded by insisting that that day was in fact a weekend. [125] This denial by the second accused in the light on the uncontroverted fact that the day of arrest was in fact a weekday does not lend any weight to his credibility. 17 [126] The second accused testified that he first saw the bag containing the impugned drugs when the boat was under the bridge. He did not however react to this because he thought the bag probably belonged to the owner of the boat or someone else who had left it there. [127] Yet under cross-examination, he admitted that he did not inform the police that he saw the bag and thought that it may have either belonged to the owner of the boat or someone else who had left it behind. [128] If indeed this was true a reasonable person would have at the very first opportunity upon learning the contents of the bag contained illicit drugs would have alerted the police to this fact and accordingly distanced himself from any involvement or knowledge of the illicit contents. [129] The testimony of SD3 and SD4 does not assist the defence in any way as they only state that they saw the first accused about to go fishing. [130] While both the accused may have been in the boat that day with fishing gear on board, the fact that a bag containing the impugned drugs was also in the boat under the circumstances where the bag could not have failed to have been noticed, raises the inference that the purpose of both the accused in the boat at that location that day was for a more sinister purpose. [131] Therefore, although the accused persons had on board with them fishing rods, bait, and the polystyrene box, I find this was a mere ruse employed by them in order to conceal their true motive for being out at sea in the said boat and that is to traffic in the impugned drugs.” 18 [28] In the circumstances, we find the trial judge had sufficiently analysed the defence case and made his finding which is supported by evidence and based on assessment of the credibility of witnesses. Thus, the contention that the trial judge had failed to appreciate the defence’s case is misconceived. The location of the boat when the appellants were arrested by the police [29] Counsel for the 2nd appellant submitted that the prosecution had failed to prove that the location of the boat, when the appellants were arrested, was within the territorial jurisdiction of Malaysia. It was contended that no expert witness was called by the prosecution to prove this fact. [30] On this issue, SP2 in his testimony had said that the boat where the appellants were arrested was within the Malaysian territorial waters. His evidence was supported by the GPS coordinates and photographs. In fact, photograph marked ‘D’, which was tendered by the prosecution, showed that Malaysian shore can be seen from the said location. Hence, it is an established fact that the location of the boat where the appellants were arrested was within the territorial jurisdiction of Malaysia. [31] In addition, the evidence of SP2 was not challenged by the defence during trial and in fact, the issue of territorial jurisdiction was never raised by the defence. As such, the evidence by SP2 which was 19 corroborated by other documentary evidence was correctly accepted. (see Wong Swee Chin v PP [1981] 1 MLJ 212) [32] Thus, the contention by counsel for the 2nd appellant on this issue is devoid of any merit. The absence of forensic evidence [33] It was also contended by counsel for the 2nd appellant that the trial judge had erred in finding that DNA and fingerprint evidence is not substantive evidence and only corroborative in nature and the absence of it does not in any way cause a gap in the prosecution’s case. Counsel for the 2nd appellant submitted that when the direct evidence adduced by the prosecution in a case is weak, absence of forensic evidence would be fatal to the prosecution’s case. [34] In relation to this, the trial judge in his grounds of judgment opined that the mere absence of the appellants’ DNA or fingerprints on the drugs does not mean that they were not in possession of the drugs. In support of this view, he quoted the case of Gunalan a/l Ramachandran [2004] 4 MLJ 489(CA), Lim Soon Heng v Public Prosecutor [2014] 6 MLJ 109, Ibe Godwin Uzochukwu v PP [2017] MLRAU 99 and Pendakwa Raya v Mansor bin Rashid & Anor [1997] 1 CLJ 233 (FC). 20 [35] Here, we do not find any error by the trial judge on this issue as the forensic evidence is in fact a corroborative evidence which does not create any gap to the prosecution’s case when all the element of possession and trafficking of the drugs had been proven. This court in Francis Abuchi Odike v Public Prosecutor {2015] 1 LNS 928 had dealt with the same issue and held as follows: “[28] Having said that, The DNA evidence or fingerprint lifting are only corroborative evidence in nature when all other important ingredients of the offence, i.e., custody and control, actual possession and knowledge are proven. When the evidence are overwhelming, the DNA evidence or contamination thereof becomes irrelevant.” [36] Further, In the Supreme Court case of Gade Lakshmi Mangraju @ Ramesh v State of Andhra Pradesh [2001] AIR SC 2677, Thomas J had this to say: “Presence of a fingerprint at the scene of the occurrence is a positive evidence. But the absence of a fingerprint is not enough to foreclose the presence of the persons concerned at the scene. If during perpetration of the crime the fingerprint of the culprit could possibly be remitted at the scene it is equally a possibility that such a remnant would not be remitted at all. Hence absence of finger impression is not guarantee of absence of the person concerned at the scene. [37] Reverting to the present case, we find, all the elements to prove the charge against the appellant had been established by the prosecution even in the absence of the forensic evidence. Therefore, the trial judge was correct in his finding on this issue. 21 The issue of common intention [38] Lastly, counsel for the 2nd appellant submitted that the learned trial judge had erred in his finding that there was common intention of both appellants to traffic in the said drugs. It was the 2nd appellant’s contention that all the prosecution could show was that both appellants were fishing together on the said sampan at the material time and nothing more. [39] It is trite law that the important element in common intention is “participation in action”. The element of pre-planning by the accused may develop during the course of the commission of the offence and the existence of common intention is a question of fact that can be established by inferences from the circumstances of each case. In this regard, the Federal Court in Wan Yurillhami Wan Yaacob & Anor v PP [2010] 1 CLJ 17 had lucidly explained the issue of common intention in the following manner: “[29] It is a well established principle of law in dealing with criminal liability under s. 34 of the Penal Code that a pre-concert or pre-planning may develop on the spot or during the course of the commission of the offence. The existence of common intention is a question of fact and in each case, it may be proved as a matter of inference from the circumstances of the case. (see Mahbub Shah v Emperor AIR [1945] PC 118 and Suresh v State of Uttar Pradesh AIR [2001] SC 1344) [40] Coming back to the instant case, the trial judge had made his finding of facts that there was common intention of both appellants to 22 traffic the impugned drugs by inferences from the circumstances of the case as reflected in his grounds of judgment which are as follows: “[71] The circumstances of the case revealed that both accused had gone to SP4’s house to hire a boat. Observation and surveillance conducted by SP2 for a period of 20-30 minutes reveal that only both of them were in the boat. [72] The bag containing the impugned drugs was in close proximity to both accused for a length of time that made it not probable for them not to have seen the said bag earlier. The boat was also not big and confine space would make it highly unlikely that both accused could have failed to have notice the said bag. [73] The inferences drawn from the above circumstances was that there was common intention of both accused to traffic in the said drugs “ [41] Having considered the evidence before the court, we find, the trial judge had made a correct finding based on circumstances of the case that there was common intention of the appellants to traffic the drugs found in the boat. As such, the contention by the 2nd appellant on this issue is also untenable. The sentence [42] As regard to the sentence against the appellants, the majority decision of this court is that the trial judge was correct in imposing the death penalty as the circumstances laid down under section 39B(2A) of 23 the DDA has not been satisfied by the appellants for the trial judge to exercise his discretion to impose the sentence of life imprisonment and 15 strokes of whipping. [43] In this regard, it is not disputed that section 39B(2) confers the discretion to the trial judge to sentence an accused convicted under section 39B(1), as in the present case, with death or imprisonment for life. The provision reads as follows: ‘Any person who contravenes any of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping not less than fifteen strokes.’ (emphasis added) [44] However, the discretion under section 39B(2) is subject to the circumstances laid down under section 39B(2A) of the same Act which states: “In exercising the power conferred under subsection (2), the Court in imposing the sentence of imprisonment for life and whipping not less than fifteen strokes, may have regard only to the following circumstances: