Tpr Puan Kwan Li Sa v Wan Amirul Mubin Bin Wan Kamaruddin (T-05(M)-448-12/2016)

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DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO : T-05(M)-448-12/2016 ANTARA WAN AMIRUL MUBIN BIN WAN KAMARUDDIN … PERAYU DAN PENDAKWA RAYA … RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya Di Kuala Terengganu Perbicaraan Jenayah No: 45A-09-09/2014 & 45A-10-09/2014] Antara Pendakwa Raya Dan Wan Amirul Mubin Bin Wan Kamaruddin] CORAM AHMADI BIN HAJI ASNAWI, JCA IDRUS BIN HARUN, JCA KAMARDIN BIN HASHIM, JCA 2 JUDGMENT OF THE COURT [1] The appellant in this appeal was charged in the High Court on 2 counts of trafficking in and possession of dangerous drugs under sections 39B(1)(a) and 12(2) of the Dangerous Drugs Act 1952 [Act 234] respectively in the following terms: First Charge “Bahawa kamu pada 20.6.2014, jam lebih kurang 9.00 malam bertempat di L15-1 Lt 3371 Jalan Sekolah Intan Zaharah, Kampung Balai Besar di dalam daerah Dungun, di dalam Negeri Terengganu, telah mengedar dadah berbahaya iaitu Heroin seberat 64.59 gram dan dengan itu 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”. Second Charge “Bahawa kamu pada 20.6.2014, jam lebih kurang 9.00 malam bertempat di L15-1 Lt 3371 Jalan Sekolah Intan Zaharah, Kampung Balai Besar di dalam daerah Dungun, di dalam Negeri Terengganu, telah ada dalam kawalan kamu dadah berbahaya iaitu Heroin seberat 9.08 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39(A)(2) Akta yang sama”. [2] The appellant was convicted on both charges. On the first charge, the appellant was sentenced to death whereas on the second charge, the appellant was sentenced to 10 years imprisonment from the date of conviction. The learned judge, in respect of the second charge however, did not impose the mandatory whipping of not less than 10 strokes prescribed by section 39A(2) of Act 234 stating that the appellant, had 3 already been sentenced to death on the first charge. We begin, in considering the appeal by the appellant, by stating relevantly the following evidence that we have garnered from, and which appear clearly in the notes of evidence. It is the prosecution’s narrative that on 20 June 2014 circa 9 p.m., acting on an information in connection with dangerous drug activity, Sub-Inspector Ismail bin Omar (PW4) with a team of police personnel carried out a raid on a house at L15-1, Lt 3371, Jalan Sekolah Intan Zaharah, Kampung Balai Besar, Dungun in the state of Terengganu. Before entering the compound of the house, PW4 and his team first conducted an observation on the house from which PW4 could see the light which shined the house. PW4 suspected that there was someone in the house after which PW4 proceeded to the house through the gate which was not locked and stopped in front of the door. When PW4 heard the occupants of the house talking, he thereupon knocked the door. A Malay male, who was during the trial identified as the appellant, opened the naco louvre window of the front room. PW4 immediately identified himself as a police officer and instructed the appellant to open the door. The appellant initially refused to open the door but after being told to do so by PW4 several times, the appellant then opened the door. Upon entering the house, PW4 took the appellant to the same front room, which was the first bedroom, where he could see a woman, Anisa Suhaila binti Moktar (PW7) with a child who was about 1 year old in the said room. [3] PW4 later learned that PW7 was the appellant’s wife. Subsequently, a body search was conducted on the appellant but nothing incriminating was found on his body. PW4 then searched the room from which a bag containing cash of RM6000.00 was found by the side of a dressing table. A further search in the same room by PW4 which was witnessed by the appellant did not yield a discovery of anything 4 incriminating. Neither did PW4 find anything incriminating in the second room of the house when a search was subsequently conducted there. [4] PW4, accompanied by Lance Corporal Faizal Amri bin Zakaria (PW5), and the rest of the raiding team next proceeded to the third room which was closed but the door was not locked from inside. Both the appellant and PW7 were also taken to the said room. PW4 observed that there were clothes which were hung on a rope with one end connected to a wall and the other to a rack used for keeping things, some clothes which were folded on the floor and a pile of clothes on the floor near the wall. Underneath the said pile of clothes, PW4 found a newspaper package and when he asked the appellant about the content of the said package, it was met with silence but the appellant looked shocked, pale and nervous. PW4 questioned both the appellant and PW7 about the package but the latter did not admit it was hers. The appellant on the contrary, at first kept quite but upon being questioned by PW4 a few times, finally nodded his head. Witnessed by PW5 and in the presence of the appellant, PW4 proceeded to open the package from which he found 10 transparent plastic bottles with yellow caps each containing white powdery substances suspected to be dangerous drug [Exhibits P9B(1-10) and P9C]. These exhibits were seized by PW4. The appellant, after being handcuffed, together with PW7, were taken to the first room. According to PW4, he suspected that there were other incriminating things kept in the house. [5] PW4 subsequently administered a caution under section 37A(1)(b) of Act 234 (now section 37B(1)(b)) on the appellant. PW4 read out the caution from a piece of paper (Exhibit P29) which he kept in his wallet after which he proceeded to question the appellant. The questions and 5 answers thereto were recorded by PW4 in a black note book (Exhibit P30) found on the dressing table and they are reproduced below – “Pada 20.6.2014 lebih kurang 2125hrs di bilik pertama di alamat L15-1 LT 3371 Jalan Sekolah Intan Zaharah, Kampung Balai Besar saya menyoal Wan Amirul. S : Adakah awak faham dengan kata-kata amaran yang telah saya bacakan tadi? J : (OKT berdiam diri sahaja). S : Adakah awak ada menyimpan/menyembunyikan apa-apa barang salah? J : OKT diam dan hanya (mengangguk). S : Bolehkah awak menunjukkan tempat di mana barang itu disembunyikan? J : Ya S : Di mana barang itu? J : Di belakang rumah. S : Bolehkah awak membawa saya ke tempat tersebut? J : Boleh. S : Di mana tempat sebenar barang tersebut disembunyikan? J : Di bawah batu besar. (Setelah saya menyuluh dengan menggunakan lampu suluh ke arah seketul batu dan bertanya ‘adakah batu ini’ Perayu terus menunjuk dengan menggunakan jari telunjuk tangan kanan ke arah batu tersebut). S : (Setelah saya mengalihkan batu tersebut saya bertanya lagi kepada OKT di mana barang tersebut?) J : OKT menunjuk yang barang tersebut ditanam di dalam tin di dalam tanah. (Setelah saya mengais tanah di tempat tersebut saya nampak satu tin yang bertudung. Setelah itu saya bertanya soalan lagi.) S : Di manakah barang tersebut? 6 J : Barang tersebut berada di dalam tin dibungkus dengan plastik. (Setelah saya membuka tudung tin saya dapati terdapat satu bungkusan plastik dan saya terus mengangkat tin tersebut) S : Adakah dadah yang awak maksudkan ada di dalam tin/plastik ini? (Saya terus mengambil bungkusan yang terdapat dalam plastik tersebut satu demi satu dan seterusnya mengangkat plastik tersebut keluar dengan diperhatikan oleh Wan Amirul dan 2 anggota saya Sudin dan Aper). S : Adakah dadah berada dalam bungkusan tersebut? (Saya terus membuka bungkusan dan menunjukkan dadah kepada Wan Amirul). S : Dadah ini milik siapa? J : Saya punya. S : Siapa yang simpan/tanam dadah ini? J : Saya. S : Adakah kamu bercakap benar? tt tt (Wan Amirul Mubin (SI Ismail Omar RF 94316)” Bin Wan Kamaruddin) The appellant signed Exhibit P30 after he was requested to do so by PW4. [6] Based on the questions, and the information provided by the appellant, PW4 was led to the back of the house by the appellant where he pointed to a rock which PW4 whereupon removed and upon removing the said rock, PW4 found the impugned drug hidden in a biscuit tin buried in the ground. The biscuit tin was found to contain a plastic package (Exhibit P17) from which plastic packets [Exhibits P18 (1-7)] tied with a 7 rubber band were recovered. Each plastic packet had 10 plastic bottles with yellow caps containing white powdery substances suspected to be dangerous drug. The number of the plastic bottles in the 7 plastic packets seized by PW4 in total was 70 [Exhibit P10B (1-70)]. It is noteworthy that PW7 told PW4 that she had no knowledge about the impugned drug. [7] PW4 seized all the incriminating exhibits and handed them over to Inspector Kasevan a/l Chandra, (PW1), the investigating officer. The evidence of the chemist, Zuzilawati binti Hassim (PW3), which was hardly challenged by the defence, confirmed conclusively that on analysis the white powdery substances were heroin with the net weight of 64.59 grammes in respect of the 70 plastic bottles [Exhibits P10B)(1-70) and P10C], the subject matter of the first charge, and 9.08 grammes in respect of the 10 plastic bottles [Exhibits P9B(1-10) and P9C], the subject matter of the second charge. Heroin therefore, according to PW3 and based on the chemist report prepared by her (Exhibit P28), is for the time being comprised in the First Schedule to Act 234 and hence dangerous drug as defined in section 2 thereof. It was also in the prosecution evidence that the house was rented by the appellant from Ahmad Abadi bin Mohd Ali (PW9), the owner thereof. According to PW9, he rented the house to the appellant in March 2014 and the house rental was handled by his younger brother Jailani bin Mohd Ali (PW12). PW12 in turn testified that he cleaned the house and removed all household items from the house before it was rented to the appellant. He gave the key to one Mokhtar Awang, PW7’s father, in March 2017 who rented the house for the appellant and PW7. PW12 further testified that the monthly rental fee was RM300.00. 8 [8] At the close of case for the prosecution, the learned judge accepted the evidence of PW3 that the white powdery substances which she had analysed were heroin with the net weight as specified in both charges. The learned judge was also satisfied that the chain of evidence in respect of the proscribed drugs was unbroken right from the point of time it was found at the location as described above to the time it was sent to PW3 for analysis and thereafter returned to PW12 where it was kept in safe custody until the same was produced as evidence in the court below during the trial. The learned judge also accepted that the house was rented by the appellant from PW9 through PW12. From the evidence of PW9 and PW12, His Lordship found that the house key was given to one Mokthar Awang, PW7’s father. Before the appellant and PW7 moved into the house, it was first cleaned up and cleared of any things which belonged to the previous tenant. Thus, according to the learned judge, anything found in the house belonged to the appellant and PW7. His Lordship found that the appellant had knowledge, custody and control of the impugned drug found in the third room of the house. As regards the drug found at the back of the house, the learned judge accepted the evidence adduced by the prosecution that the appellant led PW4 and PW5 to the discovery of the drug in question holding that sections 27 and 8 of the Evidence Act 1950 applied. Under the circumstances, the learned judge made an affirmative finding that the appellant had actual acknowledge, control and custody of the drug which was hidden in the biscuit tin and buried in the ground which in turn was covered with the rock. In view of the substantial quantity of the impugned drug contained in the 70 plastic bottles, a reasonable inference could be drawn therefrom that the drug was not meant for personal consumption but was intended for sale and trafficking to a third party. Accordingly, after undertaking a maximum evaluation of the evidence adduced by the prosecution, the 9 learned judge was satisfied on a prima facie basis, that each and every essential element of the offence under section 39B(1)(a) of Act 234 and under section 12(2) of the same Act had been proved. The learned judge also found that the presumption under section 37(da) of Act 234 applied to the appellant in respect of the first charge. [9] The appellant tendered himself as a witness. Save for the appellant, no other witnesses were called by the defence. His defence in essence was that, at the time of the raid at his house, he was at home with PW7 and his eight months old child. The appellant rented the house 3 to 4 months before he was arrested. The house had a fence. The appellant denied that the drugs found in the third bedroom and at the back of his house buried in the ground belonged to him or to his wife, PW7. He added that he did not know where did the drugs come from. The appellant also denied that the drug found at the back of the house was based on the information that he had given to the police. [10] The learned judge found that the defence was one of a bare denial unsupported by any evidence. From the defence evidence, it was clear that the house was occupied by the appellant, PW7 and their child at the material time. He kept the key to the house and paid rental to the owner through his father in law. The learned judge also considered the appellant’s testimony that no one, not even his neighbours came to the house and hence ruled out any probability of any one coming to the house and kept the drugs at the house. It follows therefore that the drugs found at the appellant’s house belonged to him. The learned judge was satisfied that the appellant failed to rebut the presumption under section 37(da) of Act 234 on the balanced of probabilities and to raise a reasonable doubt in the prosecution’s case. The appellant was accordingly convicted on 10 both charges and sentenced to death on the first charge and to 10 years imprisonment on the second charge. [11] Now we turn to consider the appeal. Before we examine the rival arguments urged on behalf of the parties, it would be apposite to start off by dealing with the question of proof. For this purpose, suffice for us to state that there are 3 requisite elements of the offence of trafficking of dangerous drug described in the first charge which the prosecution is required to prove and these are – a. the appellant was in possession of the dangerous drug with the net weight as specified in the charge; b. the appellant at the relevant time and date and the place in question had trafficked in the said dangerous drug; and c. the drug specified in the first charge is for the time being comprised in the First Schedule to Act 234 and therefore is dangerous drug as defined in section 2 of the same Act. The charge under section 12(2) of Act 234 for the offence of possession of the dangerous drug would require the prosecution to prove the element of possession of the said dangerous drug at the material time and that the same is for the time being comprised in the First Schedule to Act 234 as defined in section 2 thereof with the net weight specified in the second charge. [13] At this stage, we will allude briefly to the main points in the appellant’s appeal before us in questioning the decision of the learned judge. The first point taken in the appeal concerns the contention that so far as the evidence shows, the prosecution had failed to prove that the 11 appellant was in possession of the impugned drug at the relevant time, let alone trafficking in the said drug. This issue is common to both charges. Secondly, as regards the first charge, it was strenuously contended on behalf of the appellant that the information leading to the discovery of the impugned drug pursuant to section 27 of the Evidence Act 1950 was inadmissible. [14] It would be convenient to deal with these issues together. One thing is extremely clear, that is that, the prosecution led evidence through PW7 that both the appellant and PW7 lived at the house in question at the time of the raid. The evidence of PW9 who was the owner of the house and his younger brother PW12, confirmed that the key to the house was given to the appellant through PW7’s father around the month of March 2014. The house was rented by the appellant. This is the uncontroverted fact as the appellant had admitted it in his evidence. Both PW9 and PW12 testified that they had no knowledge about the drugs found by the police inside and outside the house which formed the subject matter of both charges. The appellant’s wife, PW7, also denied any knowledge about the drugs. The house which the appellant occupied was fenced up and in his evidence the appellant testified that he kept the house key with him and that no one including his neighbours came to the house within the perimeter fence. This evidence, in our opinion, demonstrates the clear fact that the appellant was in control of the house, and the site behind the house where the drugs were found. When this is established, prima facie, the appellant was undoubtedly in control of the impugned drugs. This proposition was authoritatively explained in R v Woodman [1974] 2 All ER 955 in which Widgery CJ said – 12 “We have formed the view without difficulty that the recorder was perfectly entitled to do what he did, that there was ample evidence that English China Clays were in control of the site and had taken considerable steps to exclude trespassers as demonstrating the fact that they were in control of the site, and we think that in ordinary and straightforward cases if it is once established that a particular person is in control of a site such as this, then prima facie he is in control of articles which are on the site” [15] The learned judge in his decision invoked the presumption of trafficking under section 37(da) of Act 234. It is, we apprehend, the basic requirement of the law that, any reliance on the presumption under section 37(da) would necessitate the prosecution to prove that the appellant had possession of the impugned drug. That is the essential element which must be proved by the prosecution and the trial judge on his part is required, as evident by the use of the word ‘found’ in the opening phrase of section 37(da), to make an express affirmative finding of the basic or primary facts with regard to the possession of the impugned drug so that when this is fulfilled, the proof of possession would consequently give rise to the presumption of trafficking, [Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273 at pages 288 and 289]. [16] The law must now be taken as settled that to prove possession of the drug in question, the prosecution must inevitably prove that the appellant knew the nature of the drug he possessed, he had power of disposal thereof and was conscious of the same. The law of possession was lucidly explained by the Federal Court in the case of PP v Denish Madhavan [2009] 2 CLJ 209. Abdul Aziz Mohamad FCJ there said – 13 “[15] The question of others having access to the respondent’s room was considered by the learned trial judge both after the close of the case for the prosecution and in evaluating the case after hearing the defence. The learned trial judge said that the matter of access by others was “to negative the proof of exclusive possession”. Before us the respondent’s counsel was candid enough as to what the respondent’s aim was in seeking to show the probability of access by others as a matter negativing exclusive possessions: it was to assert that the cannabis in the three bags under the bed could have been concealed or planted there by these other persons. The learned trial judge did not allow himself to be distracted by this suggestion of access by others from the evidence that he found to exist of “exclusive” possession of the cannabis on the part of the respondent. He did, nevertheless, make findings on the evidence relating to access by others. He found on the evidence that Boy had already ceased living at the house when it was raided. As regards Razali, he found there was no evidence that Razali had a set of the keys of the house although there was evidence that Razali had been entering the house to care for a hamster that was in a cage in the common or guest area. [16] Before proceeding to consider the reasons for the Court of Appeal’s decision, we will say a few words about “exclusive” possession. It is inappropriate to speak of possession of an article in criminal law as exclusive possession. One is, either in possession or not in possession, although one could be in possession jointly with another or others. To say that the prosecution of a drug case fails because there has been no proof of exclusive possession is apt to convey the wrong impression that it is only in cases where possession is entirely with one person, - that is, “exclusive” – that a conviction is possible. When the learned trial judge said “The accused sought to negative the proof of exclusive possessions…”, we take it that he meant no more than that the respondent sought to show that he was not in possession of the drugs because he had no knowledge of their 14 existence and that the drugs could have been placed in his bags by some other person or persons. [17] The idea of exclusively features in the meaning of “possessions” in criminal law as one of the elements necessary to constitute possession. As Taylor J said in Leow Nghee Lim v. Reg. [1955] 1 LNS 53 : …It is often said that ‘possession must be exclusive’. This is ambiguous. Possessions need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. Custody likewise may be sole or joint and it has the same element of excluding others. The main distinction between custody and possession is that a custodian has not the power of disposal. The statement that ‘possessions must be exclusive’ is often due to confusion of the fact to be proved with the evidence by which it is to be proved. It is essential to keep this distinction clearly in mind, especially when applying presumptions. [18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17, said that “possession” for the purpose of criminal law involves possession itself – which some authorities term “custody” or “control” – and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen’s Digest (9th edn, p. 304), in which the exclusive element mentioned by Taylor J appears: A moveable thing is said to be in the possessions of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and 15 when the circumstances are such that he may be presumed to intend to do so in case or need. [19] Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession.” [17] Having considered the evidence, and mindful of the above principle relating to the law of possession, we find no difficulty whatsoever in holding that the element of knowledge in respect of the illicit drug which is necessary to show possession of the same, had been established by the combined evidence of the appellant’s information and his conduct which led distinctly to the discovery of the drug concealed in the biscuit tin and buried in the ground at the back of his house with the surface covered by earth and the rock. It is abundantly clear that this information, had been proved pursuant to section 27 of the Evidence Act 1950 and is admissible since the drug that was recovered was in consequence of the information given by the appellant to PW4. We now quote from the Evidence Act 1950 section 27 –

Subsection

(1) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.” [18] We are mindful of the fact that the information was obtained after the appellant was cautioned pursuant to section 37A(1)(b) of Act 234. However, we consider the appellant’s information that the drug was at the 16 back of the house and that he subsequently led the police to the exact spot where the drug was found as an information which falls squarely under section 27 of the Evidence Act 1950. Such information, in order to be admissible in evidence, does not require the prosecution to prove that the information was voluntary, hence it is not necessary to conduct a trial within a trial to determine the voluntariness thereof. To support this proposition, we refer to the case of Siew Yoke Keong v PP [2013] 4 CLJ 149 in which the Federal Court at page 167 paragraph [28] clearly stated that for such information to be admissible in evidence, there is no duty on the prosecution to prove the voluntariness of the information, hence it is not necessary to conduct a trial within a trial to determine the voluntariness of the information. The essential requirement is that the appellant gave the discovery information to PW4 and in this case we are satisfied that he actually did. [19] The other requirement turns on the credibility of the witness namely PW4 who gave the evidence in connection with the discovery information [Krishna Rao Gurumurthi & Anor v PP & Another Appeal [2007] 4 CLJ 643]. It is apparent from the learned judge’s comprehensive judgement that His Lordship had directed himself on the issue of credibility of PW4 and accepted his evidence that the discovery information was in fact given by the appellant to him. The information was also accurate. The learned judge considered that the appellant led PW4 to and pointed the exact spot where the drug was found. As earlier stated, the drug was concealed in the biscuit tin and buried in the ground with the surface covered with earth and the rock. It would be useful to remember that the initial discovery of the drug in the third bedroom did not lead to the discovery of the drug at the back of the house. In fact the learned judge observed correctly that the police team did not know about the drug hidden at the back of the 17 house. It was only upon the information provided by the appellant that PW4 found the drug in question. It was so hidden that it required some efforts on the part of the police team before the drug was found. The learned judge considered and accepted the evidence of PW4 that he did not have initial information in respect of the site where the drug was hidden. [20] Moreover, the manner in which the drug was hidden in no way leaves any margin of doubt in our minds that the appellant knew about the drug and where it was kept. It could not have been found without the discovery information and the conduct of the appellant in taking PW4 and pointing to the exact location where the drug was finally found. The court in the case of Faisal Abd Aziz v PP [2011] 9 CLJ 285 on this issue had this to say – “A quick look at the grounds of judgment, will indicate that the trial judge had in fact made an affirmative finding of possession of the drugs by the appellant. In his judgment, the judge (at p.55 of the record of appeal) wrote: It is also pertinent to stress that the manner of the packaging in small packets and the circumstances relating to the accused conduct of handing the two packets P8A and P8B and the act of pointing and picking the Old Spice bag P9 and handing it to SP3 to my mind not only established custody and control over P8A and P8B and P9 but also knowledge as to the contents of the cannabis in P8A and P8B and the cannabis content of P9. The manner and the place where P9 was found namely concealed in the bushes clearly establishes that it was only the accused who knew of its placement and concealment. It cannot have been 18 found without the accused conduct of pointing to P9 and the plastic packets P8A and P8B was taken from the same place where P9 was found. Based on the available evidence, we find that the learned trial judge has not erred in law or on facts in making such a finding.” [21] That brings us to the prosecution’s argument on the relevancy of the appellant’s conduct in leading PW4 and other police personnel to the site where the drug was found. The evidence of PW4 that the appellant led the police personnel to and pointed out the exact spot where the drug was found hidden is in our judgment relevant and admissible as conduct under section 8(2) of the Evidence Act 1950. Such evidence of conduct is admissible irrespective of whether the appellant’s statement to PW4 which preceded such conduct falls within the purview of section 27 of the same Act. This was the approach adopted by the Federal Court in Siew Yoke Keong v PP, supra, when it held as follows: “[29] In addition, it must be added that the evidence of Siew leading PW6 and the police team to the first house and pointing out the place where the bunch of eight keys was found, and later pointing out the place where the key to the safe was found would also be relevant and admissible as conduct under s. 8 of the Evidence Act. In this regard in Prakash Chand v State AIR [1979] SC 400, the Supreme Court of India said: For example, the evidence of circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any information contemporaneously with or antecedent to 19 any such conduct falls within the purview of section 27 of the Evidence Act...” [22] At the close of case for the prosecution, the learned judge admitted the information in evidence pursuant to section 27 of the Evidence Act 1950 after His Lordship was satisfied that the conditions in which such information could be admitted had been fulfilled– a. the discovery of the drug was in consequence of the discovery information supplied by the appellant ; b. the appellant at the relevant time was under police detention; c. the drug recovered was in fact hidden from the public view; d. PW4 did not have any prior knowledge of the fact that the drug was concealed at the place in question; and e. the information was given by the appellant and recorded in Exhibit P30 by PW4. [23] It is an important point to emphasize that the learned judge only relied on the evidence relating to the relevant information recorded in Exhibit P30 that led distinctly to the discovery of the drug. His Lordship excluded other words which formed part of the information provided by the appellant to PW4. To be specific the learned judge did not consider the appellant’s admission as shown below– “S: Dadah ini milik siapa? J: Saya punya. S: Siapa yang simpan/ tanam dadah ini? J: Saya”. 20 It might be apposite to be reminded of the obvious, that section 27 of the Evidence Act 1950 on this aspect only accepts so much of the information as relates distinctly to the fact thereby discovered. The well-establised principal which governs the admissibility of an information under section 27 is that any statement which is prejudicial to the person from whom such information is received is inadmissible and if it is admitted, it ought to be expunged [PP v Lim Hock Boon [2009] 3 CLJ 430]. It is plain that the learned judge was entirely correct in admitting the information in evidence pursuant to section 27 of the Evidence Act 1950 and in concluding that such information and conduct of the appellant manifestly showed knowledge of the drug concealed at the site in question. Accordingly, we cannot accede to the argument urged for the appellant that the information is not admissible. [24] We would once again allude in greater detail to the evidence of PW4 which described the manner in which the drug was carefully concealed in order to avoid detection. The site in question which was at the back of the house and near the rear fence was covered with the earth and the rock. When PW4 removed the rock using a steel digger (PW4 called ‘cok’ in the Malay language) which he found at the back of the house, he noticed that the spot was covered with earth. He used the steel digger to dig and remove the earth until he could see the cover of the biscuit tin. PW4’s evidence was supported by his officer PW5. In our judgment, the cumulative effect of the combined evidence of the manner in which the drug was concealed at the back of the house, coupled with the fact that he was the tenant thereof and PW7’s clear denial of any knowledge about the drug, clearly showed that there was a strong connection between the appellant and the place chosen as well as the drug that was found. An inference which could be drawn, without question, could significantly go 21 beyond a mere inference of knowledge. We would say without any hesitation that an inference could also convincingly be made that considering the circumstances of this case, the appellant was in control of the drug and was so situated with respect to it that he had the power to deal with it as owner that would exclude others from enjoyment of the same and was thus in possession of the said drug [PP v Denish Madhavan, supra]. It clearly evinced the appellant’s intention to conceal the drug in order to avoid detection by the relevant enforcement authorities. [25] Therefore, His Lordship’s conclusion that the appellant had possession of the drug in the first charge could not be faulted and his inevitable invocation of the presumption of trafficking in the illicit drug under section 37(da) of Act 234 was impeccable. The weight and the nature of the drug which was proven to be heroin as specified in the first charge and proved by the prosecution during the trial through the conclusive evidence of PW3 which we have considered very early in our judgement, supported the invocation of the presumption. We would in addition hold that the learned judge was also correct in taking into account the substantial quantity of the drug contained in the 70 plastic bottles which justified His Lordship’s inference that the said drug was not meant for the appellant’s personal consumption. In our judgment, the quantity of the drug was much larger than was likely needed for the appellant’s consumption. He could not have such a quantity in his possession carefully kept in 70 plastic bottles, concealed in the biscuit tin, buried in the ground and covered with the rock save for the obvious purpose of trafficking it to others known or unknown. 22 [26] We turn to the second charge. The question immediately arises is whether the learned judge had undertaken a full appreciation of the evidence. We have to remember that the prosecution had to prove the essential element of possession of the drug at the place, time and date as specified in the second charge. It is abundantly clear that the prosecution had adduced overwhelming evidence to show that the appellant was in possession of the drug found in the third bedroom at the appellant’s rented premises. It is apparent from the evidence that the house from which the drug was found was occupied by the appellant, PW7 and their eight month old child. At the time of the raid, only the appellant, PW7 and their child were in the house. The house was locked and the door was opened by the appellant at the relevant time. The prosecution also led evidence through PW9 and PW12 that the key to the house was handed over to PW7’s father and that the house was cleaned and cleared of household items of the previous tenant before the key was given to PW7’s father. Both PW9 and PW12 in their evidence testified that they had never seen the incriminating exhibits found in the house. Moreover, PW7 in her testimony confirmed that the drug did not belong to her and she had no knowledge about the same. The sum total of the above evidence clearly established that the appellant knew about the drug and was therefore conscious of his possession of the same. The appellant’s defence which is in the nature of a bare denial failed to rebut the above evidence. [27] The defence adopted by the appellant does not affect nor dislodge the prosecution evidence that the appellant had possession of the impugned drug. Instead, the appellant’s testimony had further strengthened the prosecution’s case against him. In his defence, the appellant testified that he paid rentals for the house to his father in law to be paid to the landlord. He also admitted that the house key was kept by 23 him and that there was only one key which he never gave to other persons except his wife. Cross-examined by the learned Deputy Public Prosecutor, the appellant agreed that he had control and care of the house. The appellant also told the court that no other persons, including his neighbours came to the house. It is clear to us therefore that anything found in the house belonged to the appellant and PW7. But, so far as it concerned PW7, she had denied any knowledge about the drug found in the house and that on the contrary, she testified that the drug did not belong to her. This evidence was accepted by the learned judge. It would therefore be inevitable for the learned judge to arrive at a correct finding that the evidence adduced by the prosecution and the appellant’s defence clearly showed beyond any doubt that the appellant alone had custody or control of the premises from which the drug was found and by virtue of section 37(d) of Act 234, the appellant is deemed to be in possession of the drug and until the contrary is proved, to have known the nature of such drug. We accept the position in law that the ‘deemed’ state of affairs in section 37(d) that is, the deemed knowledge is by operation of law and there is no necessity to prove how that particular state of affairs is arrived at. The prosecution need only to establish the basis or primary facts necessary to give rise to that state of affairs, that is, the finding of custody or control [Muhammed bin Hassan v Public Prosecutor, supra]. In any event, there is no evidence that the appellant was framed up by the police or any other persons. We would observe that this is not the defence case at all. On the contrary, the evidence has clearly shown that the appellant was in possession of the drug that would exclude others from enjoyment of the same. [28] It is at this stage important to state that the defence case in respect of both charges is one of a bare denial. As regards Exhibit P30 which 24 contains the information under section 27 of the Evidence Act 1950, the appellant flatly denied that he ever gave the information and signed it. It is hard to believe that the appellant did not sign Exhibit P30 when the irrefragable evidence showed that PW7 had also signed a similar document in Exhibit P32 in which she denied knowledge or having possession of the drug found at the back of the house. His stance would not, in our judgement, go beyond a mere denial as to persuade us to accept his claim that he did not give the information. We would say that PW4 could not have discovered the proscribed drug if not for the information obtained from the appellant. It is unthinkable that PW4 had fabricated evidence in view of the complete absence of any evidence or allegation by the appellant that PW4 had made up a story regarding Exhibit P30. In fact, the appellant admitted during cross – examination that PW4, PW5 as well as PW7 had absolutely no reasons to lie about him. PW4 and PW5 were police officers who were merely performing their duties and they had no reasons to lie or to frame up the appellant whom they said they did not know. The learned judge had accepted their evidence and we find no reasons whatsoever to interfere with the decision and the assessment of the evidence of PW4, PW5 and PW7 by the learned judge. The learned judge was perfectly entitled to accept the evidence of these witnesses whose credibility His Lordship found to be impeccable. [29] In the case of Wong Kok Chun lwn PP [2012] 1 LNS 419 this Court in the judgement of Hasan Lah JCA (as His Lordship then was) said– “[62] Kami juga menolak pembelaan perayu bahawa dia tidak ada memberi maklumat sedemikian kepada SP5 kerana kami berpendapat tidak ada sebab untuk SP5 berbohong mengenai perkara ini. SP5 adalah seorang pegawai polis yang melaksanakan 25 tanggungjawabnya. Tidak ada sebab untuk beliau menganiaya perayu. Apa yang diberitahu oleh SP5 kepada mahkamah adalah perkara yang sebenarnya berlaku. Hakim perbicaraan telah menerima keterangan SP5 dan tidak ada sebab untuk kami mengganggu keputusan tersebut. Perlu juga ditegaskan di sini dalam menilai kebolehpercayaan saksi-saksi, Mahkamah Rayuan tidak sepatutnya mengganggu dapatan hakim perbicaraan kerana beliau adalah orang yang lebih layak untuk membuat pertimbangan sedemikian (lihat Andy Bagindah v. PP [2000] 3 CLJ 289; [2000] 3 MLJ 644)”. [30] It is significant to bear in mind that since both PW4 and PW5, were merely carrying on their official duties at the relevant time, in law the court is entitled to presume that their official acts were regularly performed and prima facie they did so honestly and conscientiously. Section 114 illustration (e) of the Evidence Act 1950 in this regard provides that the court many presume that judicial and official acts have been regularly performed. In the case of PP v Dato’ Seri Anwar Ibrahim [2014] 4 CLJ 162, the Court of Appeal said – “It must be borne in mind that s. 114 illustration (e) of the Evidence Act 1950 provides that the court may presume that judicial and official acts have been regularly performed. In State of Punjab v. Rameshwar Dass [1957] Cri LJ 1630, the Punjab & Haryana Court held at p. 1631 as follows: It is well settled that prima facie the public servants must be assumed to act honestly and conscientiously. It would, therefore, be basically wrong, without other cogent ground to consider them as untrustworthy witness in respect of their activities in performance of their official duties merely because of their official status unless 26 the evidence is considered to be suspicious and that the conviction of the accused cannot be sustained on the statements of the official witnesses. The presumption that a person acts honestly applied as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds.” [31] Accordingly, without cogent reasons that would allow us to hold otherwise, it would be manifestly wrong to consider PW4 and PW5 as untrustworthy witnesses in handling this case. In the end what we have before us is nothing more than the bare oral testimony which was a mere denial. We are satisfied that the appellant’s denial in his defence, as alluded to earlier considered in the light of the entire evidence upon which this Court has subjected to anxious scrutiny, has failed to exonerate the appellant from his involvement in both offences of trafficking and possession of the dangerous drugs under sections 39B(1)(a) and 12(2) of Act 234 respectively and could not rebut the presumption of trafficking under section 37(da) of Act 234 in relation to the first charge and the presumption of possession and knowledge under section 37(d) of the same Act in respect of the second charge. A bare denial is insufficient to raise a reasonable doubt in the prosecution’s case [Faisal Abd Aziz v PP, supra]. It was a perilous course of action for the appellant to take that would amount to the appellant offering no explanation to the prosecution’s case. This was what the Court of Appeal in Amran Senin v PP [2013] 1 LNS 1504 had held– “[48] The High Court Judge narrated and evaluated the defence of the appellant from pages 223 to 239 of the Appeal Record at Jilid 2. Having invoked the presumption of trafficking under section 37(da) of 27 the DDA, the High Court Judge held that the defence has the burden of rebutting the presumption on the balance of probabilities (Public Prosecutor v. Yuvaraj [1969] 2 MLJ 89, PC). The High Court Judge agreed with the deputy public prosecutor having conduct of the prosecution that the defence of the appellant was nothing more than a mere denial. Indeed the High Court Judge after having assessed the whole evidence aptly said at page 238 of the Appeal Record at Jilid 2: “Jelas daripada keseluruhan keterangan yang dikemukakan bahawa pembelaan ‘T’ semata-mata penafian yang tidak disokong oleh mana-mana keterangan sama ada dari saksi-saksi pendakwaan mahupun keterangan beliau sendiri.” [49] A defence of bare denial envisages the situation where the accused offers no explanation to the prosecution’s case and merely denies the evidence piled up against him. This was the line of defence adopted by the appellant. It was a perilous course of action to take (D.A. Duncan v. Public Prosecutor [1980] 1 LNS 12; [1980] 2 MLJ 195, FC; Public Prosecutor v. Nur Hassan bin Salip Hashim & Anor [1993] 2 CLJ 551; Andy bin Bagindah v. Public Prosecutor [2000] 3 CLJ 289; [2000] 3 MLJ 644, CA; Public Prosecutor v. Low Soo Song [2004] 1 LN 582 [2004] 3 AMR 320; and PP v. Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129, FC). [50] It must be emphasised that both SP4 and SP9 had no bad motives to frame up the appellant. The appellant also agreed that the police had no reason to put the appellant in trouble especially when the offence carried with it the death penalty. Consequently, there was no reason not to believe the evidence of SP4 and SP9. [51] The High Court Judge rightly took judicial notice that “ganja” emitted a strong smell and even if what the appellant said was true that the drugs were located in the boot of the Proton Wira motorcar (which was strenuously denied by the prosecution), it cannot be 28 overlooked that the appellant could still smell the “ganja”. The strong smell of “ganja” was even detected by SP4. [52] At the end of the day, the defence of mere denial cannot rebut, on the balance of probabilities, the presumptions of trafficking under section 37(da) of the DDA. It was a forgone conclusion for the appellant.” [32] Having regard to all the foregoing reasons and the well recognised principles distilled from the authorities hereinbefore referred to, we think it is proper at this concluding stage for a finding to be made that the appellant’s convictions on both charges are safe. It is clear to us that the learned judge undertook a correct and adequate judicial appreciation of the entire evidence concluding in the end that the appellant, as regards the first charge had obviously failed to rebut the presumption of trafficking under section 37(da) of Act 234 and as for the second charge, had failed to rebut the presumption of possession and knowledge under section 37(d) of the same Act on the balance of probabilities. Accordingly, we unanimously find no difficulty whatsoever in holding on the strength of the evidence and on the law that the charges of trafficking in and possession of the dangerous drugs namely heroin had been successfully proved against the appellant beyond reasonable doubt. We therefore affirmed the order of conviction and sentence by the learned judge in respect of both charges. [33] However, a final point needs to be made. The learned judge, in respect of the second charge, refrained from imposing a mandatory whipping of not less than 10 strokes under section 29 39A(2) of Act 234 on the ground that the appellant had also been sentenced to death on the first charge. We think the decision is erroneous. The learned judge had obviously taken into account irrelevant factor as the death sentence imposed for the offence under the first charge should not have any bearing on the sentence to be meted out for the offence under the second charge. His Lordship had undoubtedly omitted to consider that the sentence of whipping is mandatory for the offence with which the appellant was charged and found guilty under section 12(2) and punishable under section 39A(2) of Act 234. For these reasons we sentenced the appellant to whipping of 10 strokes in addition to the sentence of imprisonment of 10 years imposed by the learned judge. The appeal is dismissed. Signed ( IDRUS BIN HARUN ) Judge Court of Appeal, Malaysia Putrajaya Dated: 29 August 2017 30