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DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO : B-05(M)-58-01/2016 ANTARA CHEU KOK CHOON … PERAYU DAN PENDAKWA RAYA … RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya Di Shah Alam Perbicaraan Jenayah No: 45A-136-12/2014 Antara Pendakwa Raya Dan Cheu Kok Choon] CORAM MOHD. ZAWAWI BIN SALLEH, JCA IDRUS BIN HARUN, JCA KAMARDIN BIN HASHIM, JCA 2 GROUNDS OF JUDGMENT [1] The appellant in this appeal was tried in the High Court under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234 for short) for an offence of trafficking in dangerous drug involving 560.1 grammes of methamphetamine which is punishable under section 39B(2) of the same Act. He was convicted of the offence and sentenced to death by the High Court. This appeal is against the decision of the High Court in which the appellant was convicted and sentenced for the above offence. On 11.8.2017 this appeal was dismissed by this Court. At that instant, we did state that reasons in writing would be given for that dismissal in due course and this we now do. We begin by setting out the charge against the appellant which reads – “Bahawa kamu pada 6 Mac 2014, lebih kurang jam 6.59 pagi bertempat di kawasan Balai Perlepasan Dalam Negeri, LCCT Sepang, di dalam Daerah Sepang, di dalam negeri Selangor Darul Ehsan, telah didapati memperedarkan dadah berbahaya iaitu seberat 560.1 gram Methamphetamine dan dengan itu kamu telah melakukan suatu kesalahan dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.” [2] The material facts upon which the prosecution’s case is based are simple and straight forward. On 6.3.2014 at approximately 6.59 am, Constable Mohamad Shahril bin Tambi Chik (PW3) was on duty at the security check point where there was a AMD or Alloy Metal Detector Machine (the detector machine for short) to screen passengers at the Departure Hall of the Low Cost Carrier Terminal Sepang (the LCCT for short). With PW3, at that particular time, was Constable Mohd Khuddri Isa. It was led in evidence that the detector 3 machine sounded when the appellant was walking through it indicating that it had detected the presence of metal objects. PW3 then proceeded to make a physical body inspection on the accused following which he felt some object below the appellant’s waist. The appellant at the relevant time wore a blue shirt and a pair of blue jeans. When PW3 questioned the appellant about it, the appellant told PW3 that it was his body fat. As PW3 was suspicious of the answer, the appellant was then brought by PW3 to a room which was located behind the detector machine for thorough inspection. Whilst in the room, PW3 told the appellant to take off his trousers and PW3 noticed thereafter that the appellant was wearing a pair of black tights instead of an underwear. The appellant then took out from his tights a pink cloth bag [Exhibit P8] and 2 black cloth bags [Exhibits P9 and P10]. Upon being told subsequently by PW3 to open the 3 bags the appellant opened the bags and from inside these bags he took out 3 plastic packets [Exhibits P8A, P9A and P10A] which were found to contain powdery crystal substances [Exhibits P11, P12 and P13]. When PW3 asked the appellant what was the thing in the 3 plastic packets the appellant said it was ‘syabu’. [3] After the search, the appellant, together with the drug exhibits were brought by PW3 to a police station situated at the LCCT where PW3 lodged a police report [Exhibit P17]. From the LCCT police station, PW3 accompanied by police escorts, brought the appellant and the incriminating exhibits to Sepang Police Station (IPD Sepang). Whilst at the IPD Sepang, PW3 marked the 3 cloth bags as S1, S2 and S3 and the 3 plastic packets as S1A, S2A and S3A. PW3 also found from the wallet taken from the rear pocket of the appellant’s trousers cash in the sum of RM2,429.00. A search list (Exhibit P18A- 4 D) for the exhibits seized from the appellant was also prepared by PW3. On the same day at about 1 pm, PW3 handed over the appellant and all the exhibits listed in the handing over exhibits list (Exhibit P19A-F) to the investigating officer, PW6 who kept the exhibits in a cupboard in his office under lock and key. PW6 also marked Exhibit P8 as AA, Exhibit P8A as AA1, Exhibit P9 as AB, Exhibit P9A as AB1, Exhibit P10 as AC and Exhibit P10A as AC1 before they were placed in the cupboard. [4] On 7.3.2014, PW6 sent Exhibits P8, P8A, P9, P9A, P10 and P10A which were placed inside a sealed box marked as A (Exhibit P7) to the chemist, PW1 for analysis. The evidence of PW1 as well as the chemist report (Exhibit P6) prepared by her, were hardly challenged by the defence and it confirmed on analysis that Exhibit P8A contained 188.4 grammes of methamphetamine, Exhibit P9A contained 182.0 grammes of methamphetamine and Exhibit P10A contained 189.7 grammes of methamphetamine. The combined weight of the illicit drug is 560.1 grammes which is the weight specified in the charge. The drug is comprised in the First Schedule of Act 234 and therefore is dangerous drug as defined in section 2 thereof. On 14.7.2014, PW6 received Exhibit P7 together with a chemist report (Exhibit P6) from PW1. The exhibits were kept in the exhibits store at IPD Sepang under lock and key until it was produced in the High Court during the trial of this case. [5] On 11.3.2014, PW6 had also sent a specimen of the appellant’s blood (Exhibit P26), a pair of the appellant’s blue jeans (Exhibit P22) and a pair of the appellant’s black tights (Exhibit P24) to the chemist, PW4. PW6 received these exhibits together with a chemist report 5 (Exhibit P28) from PW4 on 3.11.2015. We could glean from Exhibit P28 that, based on the analysis conducted by PW4, only 2 bags that is Exhibits P8 and P10 were found to contain traces of the appellant’s DNA profile and as regards the other bag (Exhibits P9), no traces of DNA could be extracted thereform. [6] At the close of case for the prosecution, the learned judge made the following findings: a. the evidence of PW1 sufficiently proved that the incriminating powdery crystal substances consisted of 560.1 grammes of methamphetamines; b. the prosecution had proven that the appellant was in possession of the impugned drug which was hidden inside the pair of tights that the appellant wore. From the way the drug was carefully kept in the 3 cloth bags and concealed under the appellant’s waist by the pair of tights he was wearing, it could be inferred that the appellant had knowledge of the impugned drug. The fact that he was wearing the pair of tights instead of an underwear showed that the appellant wanted to secure the drug closely to his body and to prevent it from falling out and to avoid detection; c. there was no doubt that the drug recovered by PW3 was the same drug sent to and examined by PW1 and subsequently produced in court as evidence. Every link in the chain of evidence relating to the custody of the drug exhibit from the moment the exhibit was recovered by PW3 up to the time it was produced in court was sufficiently proven by the prosecution; 6 d. even though there were some discrepancies in PW3’s evidence, they were not material and did not affect the strength of the prosecution’s case, his evidence was more than sufficient to prove possession of the impugned drug by the appellant; e. as the weight of the drug was 560.1 grammes in excess of the stipulated statutory limit, the presumption of trafficking under section 37(da) of Act 234 was invoked; and f. the prosecution had succeeded in proving a prima facie case of drug trafficking against the appellant as charged. The appellant was called upon to enter on his defence. [7] The appellant in his defence tendered himself as a witness. Save for the appellant, no other witnesses were called to testify on behalf of the defence. On the facts of the defence evidence, the position adopted for the appellant is that in essence, on 6.3.2014 the appellant passed through the metal detector machine before he boarded an aircraft bound for Labuan. When the machine made a sound, a police personnel conducted a body inspection on him and thereafter directed him to go to a room where his wallet and luggage were inspected. The appellant testified that he carried some cash and he refused to give the money in his wallet. He claimed that the police personnel then gave the drug to him whilst he was in the room and he was told to hold it. The appellant was subsequently taken to the police station at the LCCT after which he was taken to IPD Sepang. At IPD Sepang, the appellant claimed that he told the police that he carried cash RM50,000.00 in his luggage bag and when he refused to give the money to the police personnel at the LCCT, they brought out the 3 packets of drug which the appellant denied any 7 knowledge of its contents. However, the police officer at IPD Sepang did not believe the appellant and they instead gave him a good beating. The appellant insisted that the drug did not belong to him and he only knew the 3 packets contained the drug after the police opened them at IPD Sepang. [8] Under cross-examination, the appellant maintained his earlier evidence that the police personnel framed him up by giving him the drug when he refused to give the money. The appellant however admitted that he did not lodge a police report the reason being that he was sent to the prison in Sungai Buloh. He agreed to a suggestion by the learned Deputy Public Prosecutor that when he was brought before a Magistrate he had the opportunity to lodge a complaint that he was beaten up by the police and that the police set him up but he did not do so. The appellant also agreed that he could have asked his family or counsel to make a police report and that he did not know the motive of the police to push the drug to him. [9] In his grounds of judgement, the learned judge accepted the evidence of PW3 holding that there were no cogent reasons to disbelieve him. PW3, according to His Lordship, was not an interested witness but a police officer performing his duty at the LCCT. Further, there was no evidence adduced by the appellant to show that PW3 bore any grudge against the appellant or had any evil motive against him. The learned judge rejected the defence version that the case against the appellant was a police set up and accepted the prosecution’s case that the drug was found inside the appellant’s pair of tights. As regards the alleged cash of RM50,000.00, the learned judge found that there was not an iota of evidence to prove the said 8 amount existed and that the defence failed to put the appellant’s case of the police frame-up in detail that is the police found his cash of RM50,000.00 and when he refused to give them, they took out the drug and framed him up. Accordingly, the defence failed to rebut on a balance of probabilities the presumption of trafficking under section 37(da) of Act 234. The appellant was found guilty as charged and sentenced to death by hanging. [10] We shall now to consider the appeal by the appellant which without doubt, turns upon a pure question of fact. It centres on the principal issue concerned with the evidence of PW4 that the DNA traces of the appellant were not found on a bag marked AB (Exhibit P9) which, we apprehend, immediately raises the question as to who was the owner of the said bag, could it be that the bag and the other 2 bags from which the drugs were found belonged to an unknown person. It thus brings us to the argument that it did not make sense for the learned judge to hold that all the drugs found in the 3 bags belonged to the appellant. In our judgement in this appeal, it would be useful to remember that the evidence of PW4 showed that she received Exhibits P8, P9 and P10 from PW1. These exhibits were the 3 bags which were found to contain the 3 plastic packets containing the impugned drug hidden inside the appellant’s pair of tights which he wore at the material time. The chemist report which was prepared by PW4 (Exhibit 28) reveals that only 2 bags, that is, Exhibits P8 and P10 were found to contain traces of DNA profile of the appellant whereas with regard to the other bag that is Exhibit P9, no traces of DNA could be extracted from it. PW4 in her oral testimony explained that she tried to obtain DNA traces but no such traces were found on Exhibit P9. Elaborating further, PW4 testified that she tried to obtain 9 DNA traces based on the traces of sweat on the bag in question but this would be dependent on the person who held the bag that is whether he was sweating when he held the bag and more accurately or he touched the bag for a shorter or longer time. If the bag was held or touched for a longer time there was a possibility that DNA traces would be left on the bag. [11] In his grounds of judgement, the learned judge observed that PW4 had explained giving reasons why the traces of DNA were not found as opposed to the bags marked as Exhibits P8 and P10. The above evidence shows that PW4 had given her explanation and one thing seems to be clear to us that is that the learned judge accepted the said explanation and rejected the contention urged for the defence that there was a doubt as to the actual person having possession of all the 3 bags. We find no reasons whatsoever to disturb the factual finding made by the learned judge and we accept PW4’s explanation on the absence of the appellant’s DNA profile as reasonable under the circumstances of the case. [12] In any event, it is a significant point to emphasise that, notwithstanding the above finding, the learned judge correctly held that without considering the findings of the DNA that would corroborate the connection between the appellant and the drug found in the 3 bags, there was overwhelming evidence to show that the appellant had possession of the proscribed drug at the material time. We would say on this aspect that where there is clear evidence indicating the identity of the offender, finger print evidence, and if we may add, DNA traces of the offender assumes little value or significance. It is only in a situation where the identity of the culprit is 10 in question or required to be proved, fingerprint or DNA evidence will greatly help the prosecution in proving the identity of the offender. We find support in this proposition by referring to the decision in the case of Public Prosecutor v Mansor Md. Rashid & Anor [1997] 1 CLJ 233 in which at page 250 the Federal Court there said– “Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumes little value or significance.” [13] The prosecution had adduced sufficient evidence to show that the appellant was in actual physical control and custody of the 3 bags hidden in his pair of black tights found to contain the impugned drug. There can be no doubt whatsoever that the appellant had knowledge and thus possession of the illicit drug. The prosecution had adduced more than sufficient evidence upon which the learned judge was justified to found a conviction against the appellant. We do not think that the law imposes a burden of proof higher than is necessary and requires the court to determine not whether there is sufficient evidence to warrant a conviction of the accused but to determine that the methodology of the police investigation must be 100% correct regardless of the fact that the police had gathered sufficient evidence to sustain a conviction against the appellant. In the case of Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 this is what the court at page 593 said – 11 “In the present case, the prosecution had clearly established that the accused was in actual physical custody and control of P3 and its contents. From the totality of the evidence, the prosecution had also clearly established that the accused had the necessary knowledge of P6A-H and the nature of the dangerous drugs in question. In the circumstances, I cannot find fault with the police for failing to send the exhibits to the chemist in order to carry out finger print tests. The contention of the learned defence counsel, with due respect, amounts to nothing more than to ask this court to determine not whether there was sufficient evidence adduced before this court to warrant a conviction of the accused but to determine that the methodology of the police investigation must be 100% correct regardless of the fact that the police had gathered more than sufficient evidence to sustain a conviction of the accused. I cannot lend a judicial countenance to such a contention.” [14] The learned judge invoked the presumption of trafficking under section 37(da) of Act 234 as the weight of the drug far exceeded the statutory weight prescribed in paragraph (xvi) thereof. In order to raise presumed trafficking under section 37(da) of Act 234 it is necessary for the prosecution to prove the basic or primary fact that would show that at the material time the appellant was in possessions of the illicit drug. The word ‘found’ in the opening phrase of section 37(da) connotes a finding during a trial by the court. Therefore, a finding of possession of the drug is necessary. This is the basic or primary fact which is incumbent on the prosecution to prove and for the court to be satisfied that such fact is established before the presumed trafficking of the drug can be invoked [Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273]. 12 [15] Now what is the evidence of basic or primary fact which constitute possession of the impugned drug which the learned judge said had been proven by the prosecution. From the evidence of PW3, it is abundantly clear that the drug was found inside the pair of tights that the appellant wore. The learned judge was without question correct to hold that the appellant was caught red handed with the drug under his custody and control. But, is there sufficient evidence from which knowledge of the drug could be inferred. The element of knowledge necessary to prove possession, according to the learned judge, could be inferred from the conduct of the appellant in carefully keeping the drug in the 3 bags and concealing them under the appellant’s waist by the pair of tights the appellant was wearing. It is said that to establish possession by an accused person of any dangerous drugs it must first be shown that he had knowledge of the drugs which were to be in his possession [Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585]. [16] We find no reasons to disagree with the learned judge’s finding that the conduct of the accused in wearing the pair of tights instead of an underwear clearly showed the appellant intended to secure the drug closely to his body and to prevent them from falling out or avoid from being detected by visual examination. The law is now obvious and trite that the method employed to carry a drug may furnish evidence of knowledge. This Court in the case of Teh Hock Leong v PP [2008] 4 CLJ 764 laid down this proposition which was affirmed subsequently by the Federal Court and reported in Teh Hock Leong v Public Prosecutor [2010] 1 MLJ 741. We quote from the decision of this Court the relevant excerpts – 13 “[7] It is true that mens rea possession is an element of the offence of trafficking. But it is an element like the mental element in other crimes which cannot be established by direct evidence save in a case where an accused expressly admits the commission of the offence. It has, like the mens rea in other offences, to be established by circumstantial evidence. In other words it is an ingredient that is to be inferred from the totality of the circumstances of a particular individual case. We can here do no better than to quote from the judgement of Lord Diplock in Ong Ah Chuan v. Public Prosecutor [1981] 1 MLJ 64, at p.69: Proof of the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with which criminal courts are very familiar. Generally, in the absence of an expressed admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus, in the case of an accused caught in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption in the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explanation by him, be irresistible-even if there were no statutory presumption such as is contained in section 15 of the Drugs Act. [8] Turning to the facts of the present instance, we agree with the learned trial judge that the method employed to bring the drugs in question from Thailand into Malaysia was done in a most cunning fashion to escape detection by the authorities. The method employed to convey or transport a drug may sometimes furnish evidence of knowledge. For example, an attempt to carefully conceal a drug may indicate an intention to avoid detection and thereby point to knowledge. Of course it all depends on the facts of each individual case.” [our emphasis] 14 [17] We would additionally hold that the fact that the drug was found inside the appellant’s pair of tights which he wore clearly indicated that he was so situated with respect to it that he had the power to deal with, dispose of, or exclude other persons from enjoyment of, the same [PP v Denish Madhavan [2009] 2 CLJ 209]. [18] The Federal Court in Public Prosecutor v Abdul Rahman bin Akif [2007] 5 MLJ 1 adopted the approach taken by the House of Lords in Warner v Metropolitan Police Commissioner [1968] 2 All ER 356 in considering the evidence necessary before a person could be deemed to be in possession of a prohibited substance in which Lord Morris dealt with the question as follows: “If there is assent to the control of a thing, either after having the means of knowledge of what the thing is or contains or being unmindful whether there are means of knowledge or not, then ordinarily there will be possession. If there is some momentary custody of a thing without any knowledge or means of knowledge or what the thing is or contains then, ordinarily, I would suppose that there would not be possession. If, however, someone deliberately assumes control of some package or container, then I would think that he is in possession of it. If he deliberately so assumes control knowing that it has contents, he would also be in possession of the contents. I cannot think that it would be rational to hold that someone who is in possession of a box which he knows to have things in it is in possession of the box but not in possession of the things in it. If he had been misinformed or misled as to the nature of the contents, or if he had made a wrong surmise as to them, it seems to me that he would nevertheless be in possession of them.” [19] We bear in mind the correct principle so lucidly expressed in the above case and we would say that so far as the evidence shows, 15 there is no doubt that the appellant was in physical control of the 3 bags and its contents. Considering the manner in which the bags were concealed, it would not be rational for this Court to hold that the appellant who was in possession of the bags did not have possession of the drugs kept in these bags. It is extremely clear that the appellant was in possession of both the bags and the drug in it and as such the learned judge was correct in invoking the presumption of trafficking in the said drug pursuant to section 37(da) of Act 234. We would also add that the appellant had no reasons to conceal the bags inside the pair of tights which he wore if he truly did not know the contents of the bags. It certainly did not reflect an innocent mind. In Muhammad Yusuf v PP [2011] 9 CLJ 488, where the appellant was found to have concealed the packages which contained dangerous drug on different parts of his body, this Court held that such conduct did not reflect an innocent mind. Suffice to say, no innocent person in the right frame of mind would have hidden the bags inside the pair of tights he is wearing unless he is carrying something he consciously knew to be incriminating and he did so in order to avoid detection by the relevant enforcement agency. The conduct of the appellant in concealing the 3 bags in our view gives rise to a clear inferences of the the existence of knowledge on the part of the appellant of the drug and thus the appellant could be said to have the mens rea possession of the same [Chiew Thien Leng v. Public Prosecutor [2014] 1 LNS 347]. [20] It was strenuously contended for the appellant that he was the victim of a police frame up. According to the appellant, he refused to give the cash money to the police and as a result, the police gave the 3 bags containing the impugned drug and directed him to hold them. Thereafter, the police took photographs of the appellant after which 16 he was taken to the LCCT police station with the drug in his hands. Later on, the appellant was brought to IPD Sepang where the appellant alleged that he informed the police that he only carried with him cash of RM50,000.00 in his luggage bag and when he refused to give the cash to the police at the LCCT, the police personnel brought out the 3 packets of drug which the appellant denied any knowledge of its contents. It would appear from the appellant’s line of defence that the police had acted mala fide against him but why the police had done so, the appellant was not able to offer a plausible explanation. The learned judge had carefully considered this issue and found that the defence was wholly untenable and failed to rebut on the balance of probabilities the presumption under section 37(da) of Act 234. [21] We agree with the learned judge’s finding that under cross-examination, the appellant testified that he did not know the motive of the police to push the drug to him. It was also in evidence that the appellant did not lodge a police report pertaining to his complaint of the alleged police frame-up even though there was ample opportunity to do so through his family or his lawyer or to the magistrate when he was brought to the magistrate court to be remanded. [22] The learned judge had observed the demeanour of the prosecution’s material witness namely PW3 and was satisfied that he was a credible witness. There was, moreover no evidence adduced by the appellant to show that PW3 bore any grudge against him. PW3 was merely carrying out this duty and he reacted correctly when the detector machine sounded by proceeding to conduct a physical inspection on the appellant and when he felt some object below the appellant’s waist he questioned the appellant about it. But when PW3 17 was suspicious of the answer the appellant gave, PW3 decided to conduct a thorough inspection in the room at the LCCT. This action in our judgement, was to be expected of a police officer and the whole process of questioning and inspection conducted by PW3 was in fact in the normal and ordinary course of duty of a police personnel. There was obviously an absence of relevant or clear bad faith or evil motive in what PW3 had done. [23] Further, as the learned judge had correctly held, it was inherently improbable that PW3 could have produced the 3 bags containing drug from nowhere and used to frame up the appellant. The appellant it is to be observed, did not even mention where did PW3 take the bags from. Surely if the defence story was true, the appellant could have told the court where was the drug taken from by PW3. We also agree with the finding by the learned judge that there was not an iota of evidence to prove that the cash of RM50,000.00 existed. In fact, as the evidence showed, only cash of RM2429.00 was recovered by PW3 from the appellant’s wallet found in the back pocket of the appellant’s blue jeans (Exhibit P18 (a-d)). In the end, the complete absence of any evidence on the alleged RM50,000.00, we would hold without any hesitation that the appellant’s testimony in respect of the money is a figment of his imagination and the learned judge was absolutely right in rejecting it. [24] In any event, it ought to be mentioned that the appellant’s defence that he was set up by the police was never specifically put to the prosecution’s witnesses in particular PW3, in detail that the police found RM50,000.00 and when he refused to give them, the police personnel took out the bags containing the drug and gave it to him. 18 This failure as the learned judge correctly held, could move the trial court to dismiss this particular line of defence as an afterthought or a recent invention. The law on this subject must be taken to be well settled that is, the necessity to put the essence of his case to the material prosecution’s witnesses is not a mere technical rule of evidence, it is indeed a rule of essential justice so that any such failure by the defence would have serious implication on the accused’s credibility and the weight to be attached to his evidence. We now quote from the Federal Court’s decision in Siew Yoke Keong v PP [2013] 4 CLJ 149 the following excerpts on this subject : “We do not think the learned trial judge could be faulted for that. In Alcontara Ambross Anthony v. PP, the Federal Court said : In a criminal trial, the whole point and purpose of the defence having to put its case to such of the prosecution witnesses as might be in a position to admit or deny it, is to enable the prosecution to check on whether an accused’s version of the facts is true or false, and thus avoid the adverse comment, that the defence is a recent invention in other words, “kept up its sleeve”, as it were – and revealed for the first time when the accused makes his defence from the witness box or the dock, thus detracting from the weight to be accorded to the defence. However, failure on the part of the defence to put its case as aforesaid, can never, by itself, relieve the prosecution of its duty of establishing the charge against the accused beyond any reasonable doubt. [46] Although failure on the part of the defence to put its case to the material prosecution’s witness, can never by itself relieve the prosecution of its duty to prove the charge against the accused beyond reasonable doubt (Alcontara Ambross Anthony v. PP), such failure by the defence did have serious implication on the accused’s credibility and the weight to be 19 attached to his evidence. The necessity of putting the essence of his case to the material prosecution’s witness is not a mere technical rule of evidence. It is a rule of essential justice. In PP v. Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 CLJ 215; [1999] 2 MLJ 1, at pp. 424-425 (CLJ); 193-194 (MLJ) Augustine Paul J. (as he then was) said: The nature of the defence is to be ascertained not only from the evidence of the accused himself but also from the trend of the cross-examination of the prosecution witnesses and from the arguments of the accused’s counsel at the close of the trial (see Kuli E Ors v. Emperor AIR 1930 Call 442). It is therefore important for the accused to put his essential and material case to the prosecution witnesses in cross-examination. This is a principle of essential justice and was neatly stated by Mukhriji J in AEG Carapiet v. AY Derderian AIR 1961 Cal 359 in the following terms: The law is clear on the subject. Whenever the opponent has declined to avail himself of this opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that is merely a technical rule of a evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when he turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent’s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no questions with regard to this, then he must be taken to accept the plaintiff’s account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has 20 finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated. [47] In Wong Swee Chin v. PP [1980] 1 LNS 138; [1981] 1 MLJ 212 at p. 213, the Federal Court said: A correct statement of the law is that failure of the defence to cross-examine the prosecution witnesses on the matter merely goes to the credibility of their testimony, to wit, the fact they found the ammunition in the appellant’s trouser pockets remains unshaken. On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. But as is common with all general rules there are also exceptions as pointed out in judgement of the Supreme Court of New Zealand in Transport Ministry v. Garry where Haslam J. said at page 122: In Phipson on Evidence 11th edition paragraph 1544 the learned authors suggest examples by way exception to the general principle that failure to cross-examine will amount to an acceptance of the witness’s testimony, viz where. …The story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy…or when counsel indicates that he is merely abstaining for convenience, e.g to save time. And where several witnesses are called to the same point it is not always necessary to cross-examine them all.” [25] Before we conclude, a point of importance which the learned judge dealt in his grounds of judgement concerned the issue of the identify of the impugned drug with respect to which His Lordship was 21 satisfied of the unbroken chain of evidence relating to the custody of the drug exhibit right from the time it was seized from the appellant and sent to PW1 for analysis until it was produced in court during the trial as evidence. So far as the evidence showed, we cannot find fault with the learned judge’s careful analysis of the evidence concerning the chain of evidence on the custody of the drug exhibits. We shall not delve on the issue in great detail in this judgement as this is not the issue in contention in this appeal, but for completeness, we ought to mention that it is apparent on our careful perusal of the notes of evidence, that the appellant failed to cross-examine the prosecutions witnesses in connection with the identity and the evidence relating to the movement and custody of the drug exhibits. Therefore such failure goes to the credibility of the appellant and amounts to an acceptance of the prosecution’s witnesses evidence. [26] We think it is proper and clear at this concluding stage for a finding to be made that the learned judge had made a correct and adequate judicial appreciation of the entire evidence resulting at the end in a rejection of the defence case. The learned judge had audio-visual advantage of the witnesses who testified during the trial and was satisfied that the prosecution’s witnesses in particular PW3 were credible whose evidence could be acted upon. We have absolutely no reasons to interfere with the findings made by the learned judge that the defence failed to rebut the presumption of trafficking in the dangerous drug specified in the charge under section 37(da) of Act 234 on the balance of probabilities. For the reasons that we have given, we are satisfied that the charge of trafficking under section 39B(1)(a) of Act 234 was successfully 22 proved by the prosecution beyond reasonable doubt and accordingly we affirm the conviction and sentence made by the learned judge. The appeal is dismissed. Signed ( IDRUS BIN HARUN ) Judge Court of Appeal, Malaysia Putrajaya Dated: 29 August 2017