Uma Selvam A/L Subramaniam (AA-45A-7-02/2022)

This case concerns whether the prosecution has established 20 that the accused had possession, custody, control, and knowledge of dangerous drugs allegedly discovered during a police operation conducted at two separate locations in Ipoh on 18 May 2021. Although drugs were recovered at both premises, the central question is whether the evidence 25 presented by the prosecution sufficiently links the accused to those drugs in law. The case, therefore turns not on the mere discovery of drugs, but on whether the prosecution has proven the essential elements of possession and knowledge required under the Dangerous Drugs Act 1952. 30 S/N b3Tyf9aUZkmFt2iExnWKsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Background Facts [2] The accused was charged with three offences under the Dangerous Drugs Act 1952 arising from events that occurred on 18 May 2021 in Ipoh, Perak. The charges comprised one 35 charge of trafficking in 2,531.30 grams of cannabis under section 39B(1)(a) punishable under section 39B(2), one charge of possession of 12.80 grams of Methamphetamine under section 12(2) punishable under section 39A(1), and one charge of possession of 21.12 grams of cannabis under 40 section 6 punishable under section 39A(1)of the Act. All three charges were ordered to be tried together as they arose from the same police operation and involved the same witnesses and factual matrix. 45 [3] In the early morning of 18 May 2021, at approximately 5.30 a.m., acting upon intelligence relating to drug activities, Inspector Jahaki bin Matuin (SP4), together with a team of officers from the Narcotics (JSJN) of the Perak Police Headquarters, proceeded to a house located at Lot 367, 50 Persiaran Hala Bekor 19, Buntong 2, Ipoh. SP7, the sister-in-law of the accused, confirmed that Lot 367 was a family residence belonging to the accused’s father, and that several family members lived there, indicating the premises were not occupied exclusively by the accused. A raid was conducted at 55 the premises, where the accused was found in the first room on the right side of the house. The accused was immediately detained by the police officers. S/N b3Tyf9aUZkmFt2iExnWKsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

A physical search of the accused did not reveal any drugs. However, during the search of the room where the accused 60 was found, the police recovered a receipt bearing the accused’s name, indicating the rental of a single room at No. 58, Jalan Wong Kwong Nam, Taman Pertama, Ipoh. In addition, the police also discovered a bunch of keys at the Lot 367, Buntong premises. These discoveries became significant 65 as they later formed part of the investigation linking the accused to another premises.

During the police continued search around the exterior area of the house located at Lot 367, Buntong. On the floor outside the 70 house, on the left side of the house, the police found a transparent plastic packet containing dried plant material suspected to be cannabis. The packet was seized as an exhibit, along with the earlier-recovered receipt. Later chemical analysis confirmed that the dried plant material seized from 75 this location was 21.12 grams of cannabis.

Following the discovery of the receipt, the police questioned the accused regarding the address stated on the document. The accused then pandu-arah (led) the police officers to the 80 second location at No. 58, Jalan Wong Kwong Nam, Taman Pertama, Ipoh, where he had rented a room. The accused accompanied the police team to that location and pointed out the premises to them. 85 S/N b3Tyf9aUZkmFt2iExnWKsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

Upon arrival at the said house, the police observed that the iron grill gate was locked. This indicated that the police did not have immediate access to the premises. Acting on the instructions of the investigating officer, the officers cut the padlock on the grill gate to gain entry into the house. After the 90 grill gate was opened, the police discovered that the wooden door of the house was closed but not locked, and the officers then entered the premises together with the accused.

Once inside the house, the investigating officer cautioned the 95 accused and asked whether there were any drugs stored in the premises. The accused acknowledged the caution but remained largely silent, appearing restless and nervous. When asked which room he occupied, the accused initially did not respond verbally. However, after repeated questioning, the 100 accused “muncungkan mulut” (gestured with his mouth) towards one of the rooms, indicating the fourth room on the right side of the house as the room he had rented.

The police then proceeded to the room indicated by the 105 accused. The door to the room was closed and locked. When the investigating officer asked the accused for the key, the accused remained silent. As access could not be obtained, the investigating officer forced the door open by kicking it repeatedly. 110

Upon entering the room, the officers detected a strong smell of cannabis, and the accused appeared increasingly uneasy. A S/N b3Tyf9aUZkmFt2iExnWKsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 search of the room revealed a cardboard box on the floor. Inside the box were three (3) transparent plastic packages and 115 two (2) plastic packets, each containing compressed blocks of dried plant material suspected to be cannabis.

In the same room, the police also discovered one transparent plastic packet containing a crystalline substance suspected to 120 be Methamphetamine, together with several items commonly associated with drug trafficking, including a digital weighing scale, a cutting board, a knife, empty plastic packets, and a heat sealer. These items were seized as exhibits during the investigation. 125

The chemist’s analysis confirmed that the substances seized were 2,531.30 grams of cannabis and 12.80 grams of Methamphetamine from the rented room at No. 58, Jalan Wong Kwong Nam, and 21.12 grams of cannabis from the 130 compound of the house at Lot 367, Buntong. These substances are dangerous drugs listed in the First Schedule of the Dangerous Drugs Act 1952. The prosecution relied on the circumstances of the discovery, as well as the conduct of the accused and the direction given by him to the police, to 135 support the allegation that the accused had possession and knowledge of the drugs. 140 S/N b3Tyf9aUZkmFt2iExnWKsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

The prosecution submits that it has established a prima facie case against the accused on all three charges. In this regard, 145 reliance is placed on the principles laid down in Looi Kow Chai & Anor v PP [2003] 1 CLJ 734; [2003] 2 MLJ 505; [2002] 2 MLRA 383, Balachandran v PP [2005] 1 CLJ 85; [2005] 2 MLJ 301 and Sathya Vello v PP [2022] 5 CLJ 659; [2022] 6 MLJ 417; [2022] 5 MLRA 74, which affirm that a prima facie 150 case is established where the prosecution’s evidence is credible and capable of supporting a conviction.

The prosecution further submits that the identity of the drugs has been conclusively established through chemical analysis 155 conducted by the Government Chemist, who confirmed that the seized substances were Cannabis and Methamphetamine of the stated weights and falls within the dangerous drugs listed in the First Schedule of the Dangerous Drugs Act

Additionally, the prosecution contends that the chain of 160 custody of the exhibits was properly maintained, with each stage of handling accounted for by the relevant officers, thereby ensuring the integrity of the exhibits from seizure to laboratory analysis. In support of this contention, the prosecution relies on Balachandran v Public Prosecutor 165 (supra) and Munusamy Vengadasalam v Public Prosecutor [1987] 1 CLJ 250; [1987] 1 MLJ 492; [1986] 1 MLRA 292, which recognise that a properly established chain S/N b3Tyf9aUZkmFt2iExnWKsA of evidence supports the admissibility and reliability of the seized drugs. 170 Duty of this court and issues to be Determined [15] At the close of the prosecution’s case, this court is required under section 180 of the Criminal Procedure Code to 175 determine whether the prosecution has established a prima facie case against the accused. In this regard, the court must undertake a maximum evaluation of the prosecution’s evidence to determine whether the evidence, if left unrebutted, would be sufficient to sustain a conviction should the accused 180 elect to remain silent. These principles are laid down in Looi Kow Chai & Anor v PP (supra), Balachandran v PP (supra), and Sathya Vello v PP (supra), which affirm that a prima facie case is established when the prosecution’s evidence is credible and capable of supporting a conviction. 185 Issues to be Determined a) whether the accused had possession, custody, and control of the drugs recovered at Lot 367, Persiaran Hala Bekor, and at No. 58, Jalan Wong Kwong Nam; 190 b) whether the accused had knowledge of the existence and nature of the drugs found at the said premises; and S/N b3Tyf9aUZkmFt2iExnWKsA c) whether the prosecution has established the offence of 195 trafficking in cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952, including whether the statutory presumption of trafficking arises and whether it has been rebutted. 200 Issue 1: Whether the accused had possession, custody, and control of the drugs recovered at Lot 367, Persiaran Hala Bekor, and at No. 58, Jalan Wong Kwong Nam [16] The defence contends that the prosecution failed to establish 205 that the accused had the requisite "exclusive power to deal with the drugs" as required by Chan Wei Loon v. PP and Another Appeal [2021] 4 MLJ 660, which held that: “early decisions of our courts have established that possession must be with mens rea, that the person must be aware of his 210 possession, that he has the exclusive power to deal with the drugs". [17] In Sathya Vello v. Public Prosecutor [2022] 4 MLJ 111; [2022] 5 MLRA 74; [2022] 5 CLJ 659, the Federal Court 215 emphasised that: "without proof of custody or control of the drug, the case for the prosecution would collapse prematurely and the accused would be acquitted without his defence being called." 220 S/N b3Tyf9aUZkmFt2iExnWKsA Drugs found at Lot 367, Persiaran Hala Bekor 19, Buntong 2, Ipoh (Lot 367) 225 [18] The evidence shows that during the course of the police’s first raid at Lot 367, Persiaran Hala Bekor 19, Buntong 2, Ipoh (Lot 367), on 18 May 2021, a transparent plastic packet containing dried plant material suspected to be cannabis was discovered outside the house but within the compound of the house. The 230 police raid initially involved the detention of the accused inside the house, then a physical search of the accused was conducted, but no illegal items were found on him. Thereafter, the police proceeded to carry out further searches within the house, but no illegal items were found. The raiding officer, Insp 235 Jahaki (SP4), stated that after searching the interior of the house, nothing illegal was found. He states this in examination in chief: “…Seterusnya, kami juga telah membuat pemeriksaan ke atas keseluruhan bahagian dalam rumah tetapi tidak 240 menjumpai apa-apa barang yang menyalahi undang-undang.” [19] However, when the police continued the search outside of the house but within the compound, the drugs were found on the 245 floor on the left side of the house in a transparent plastic packet containing dried plant material suspected to be cannabis. The prosecution’s own narrative states: S/N b3Tyf9aUZkmFt2iExnWKsA “Pemeriksaan lanjut telah dilakukan di bahagian luar rumah tersebut dan telah menjumpai satu peket plastik lutsinar di 250 dalamnya mengandungi daun-daun kering disyaki ganja di atas lantai di bahagian tepi sebelah kiri rumah tersebut.” [20] In assessing the allegation of possession relating to the cannabis recovered at Lot 367, the evidence concerning 255 access to the compound where the drugs were found becomes highly material. The undisputed evidence shows that the packet of cannabis was not discovered inside the house but outside the house, on the floor at the left side of the building in an exterior area rather than within a space exclusively 260 occupied by the accused. The court must carefully evaluate whether the prosecution has established that the location was under the accused’s custody or control. [21] The cross-examination of SP6 is particularly revealing on this 265 issue. While the witness initially disagreed that the compound was freely accessible, his subsequent answers clarified that the front gate was merely closed, not locked, at the time of the police operation. The cross-examinations proceeded as follows: 270 Hafiz : Dadah yang dijumpai di rumah Persiaran 367, Persiaran Hala Bekor 19 ini, dijumpai di luar rumah. Setuju? : Setuju. S/N b3Tyf9aUZkmFt2iExnWKsA Hafiz : Yang mana kawasan luar rumah tersebut 275 adalah kawasan terbuka yang boleh diakses oleh sesiapa sahaja yang buka pintu pagar yang tidak berkunci tersebut. Setuju? : Tidak. 280 Hafiz : Kenapa? : Sebab masa saya buat serbuan pintu tertutup. Hafiz : Yalah. Pintu pagar ditutup tapi dikunci ataupun tidak? 285 : Tak kunci. Hafiz : Jadi setuju tak dengan saya sesiapa sahaja yang buka pagar itu ada akses terhadap kawasan luar rumah tersebut? : Betul. 290 [22] This evidence establishes two important facts. First, the gate to the compound was unlocked, meaning anyone could have opened it and entered. Second, the witness ultimately agreed that any person who opened the gate could gain access to the 295 exterior area of the house, including the location where the packet of cannabis was found. [23] The evidence further reveals that the house itself was not occupied exclusively by the accused. Testimony from the 300 witnesses indicates that when the police arrived, a female S/N b3Tyf9aUZkmFt2iExnWKsA occupant opened, and other persons were present inside the house. This indicates that the premises were shared or occupied by multiple individuals rather than being under the sole control of the accused. 305 [24] In these circumstances, the location where the drugs were discovered cannot properly be regarded as an area under the exclusive custody or control of the accused. The evidence shows that the drugs found outside the house were in a part of 310 the compound which could be accessed through a gate that was closed but not locked. When this circumstance is considered together with the evidence that there were other occupants in the house, the inference that the drugs must necessarily have belonged to the accused becomes 315 significantly weakened. The surrounding evidence, therefore, gives rise to the real possibility that the packet may have been placed or left there by some other person who had access to the compound. Importantly, the prosecution did not adduce clear evidence identifying all the occupants of the house or 320 establishing how many persons were residing at Lot 367, and thus failed to exclude the possibility that more than two persons were occupying the premises at the material time. [25] The evidence further shows that no personal belongings of the 325 accused were found near the location where the drugs were discovered outside the house. During cross-examination, SP4 agreed that no personal items or clothing belonging to the accused were seized from the area where the drugs were S/N b3Tyf9aUZkmFt2iExnWKsA found. In addition, no corresponding evidence stating that 330 the forensic team conducted dusting or any forensic examination at the outside location near the sofa where the drugs were discovered. Consequently, the forensic process done at SP8’s office did not produce any result linking the plastic packet containing the suspected cannabis to the 335 accused. The absence of both personal effects and forensic examination linking the accused to the plastic packet significantly weakens the prosecution’s attempt to establish possession or knowledge on the part of the accused. This is what SP4 said in cross-examination: 340 : Dan berhampiran dengan dadah yang dijumpai ini Inspektor, ini lot 367, … tidak ada apa-apa barang peribadi ataupun pakaian OKT yang dirampas berdekatan dengan tempat dadah dijumpai, setuju? 345 : Setuju. [26] In relation to the drugs discovered outside the house at Lot 367, the prosecution relied on the testimony of SP7, who stated that the accused was the person who usually sat on the 350 sofa, placed outside the house, and who also cleaned the outside compound area. While that evidence may suggest that the accused had some connection to the area, it must be viewed in light of the surrounding circumstances. The evidence shows that several family members occupied the house at the 355 S/N b3Tyf9aUZkmFt2iExnWKsA material time, and that the outside compound was therefore, accessible to other occupants of the premises. [27] In such circumstances, a proper forensic examination of the immediate area where the drugs were discovered would have 360 been of considerable assistance in determining whether there was any physical linkage between the accused and the plastic packet containing the suspected cannabis. However, the evidence from SP8 shows that the forensic investigation conducted by the police was limited to dusting the seized 365 exhibits for fingerprints after they were brought to the police office. SP8 testified: “Saya telah mengarahkan pihak forensik IPK Perak untuk hadir ke pejabat saya bagi menjalankan siasatan forensik (dusting) bagi mengesan cap jari pada barang 370 kes… barang kes diserahkan kepada D/Sjn 122635 Jasmin… untuk diambil tindakan mengesan cap jari… Bagi proses dusting yang dilakukan… cap jari tidak berjaya ditimbulkan.” 375 [28] The evidence, therefore, shows that the forensic exercise was confined to the exhibits themselves and not to the surrounding area outside the house where the drugs were discovered, such as the sofa or nearby surfaces. Given that the compound was accessible to other occupants and that the prosecution sought 380 to rely on the accused’s alleged connection to that location, a forensic examination of the area could have provided objective S/N b3Tyf9aUZkmFt2iExnWKsA evidence linking the accused to the place where the drugs were found. The failure to carry out such investigation leaves a significant evidential gap. It weakens the prosecution’s 385 attempt to establish that the accused had custody, control, or knowledge of the drugs discovered outside the house. [29] Accordingly, the court must approach the allegation of possession relating to the drugs recovered at Lot 367 with 390 caution. The surrounding circumstances, particularly the open accessibility of the compound through a gate that was not locked and the presence of other occupants in the premises, raise a reasonable doubt as to whether the accused had possession, custody, or knowledge of the cannabis discovered 395 outside the house. In these circumstances, the prosecution has failed to establish the essential elements of possession and knowledge in relation to the said cannabis. Drugs found at house No. 58, Jalan Wong Kwong Nam 400 [30] The prosecution seeks to rely heavily on evidence said to fall within section 27 of the Evidence Act 1950 to connect the accused to the drugs discovered at No. 58, Jalan Wong Kwong Nam, Taman Pertama, Ipoh. The evidence shows that during 405 the search at Lot 367, Persiaran Hala Bekor, the police discovered a bunch of keys and a receipt bearing the accused’s name, indicating the rental of a single room at the said address. Upon questioning, the accused allegedly pandu-S/N b3Tyf9aUZkmFt2iExnWKsA arah (led) the police officers to the second location at No. 58, 410 Jalan Wong Kwong Nam. [31] Upon arrival at the premises, the prosecution’s evidence was that the accused made a gesture of “muncungkan mulut” towards a room, indicating the fourth room on the right side of 415 the house as the room he had rented. The police officers then approached the said room. However, the evidence clearly shows that the door to the room was locked at the material time, and the police officers had to force it open by kicking it. Upon entering the room, the police discovered a cardboard 420 box placed on the floor. Inside the box were three transparent plastic packages and two plastic packets containing compressed blocks of dried plant material suspected to be cannabis, which were later confirmed through forensic analysis. 425 [32] A crucial feature of the evidence, however, is that no key to the said room was recovered from the accused during his arrest or subsequent search. The absence of the key is a material circumstance. Ordinarily, possession of the key to a locked 430 room would constitute strong evidence that the accused exercised dominion and control over that room. In the present case, the fact that the police had to kick open the locked door strongly suggests that the accused did not have immediate access to the room at the material time. 435 S/N b3Tyf9aUZkmFt2iExnWKsA [33] Further, the prosecution did not produce any reliable personal belongings of the accused inside the room, which could connect him to the drugs discovered therein. Although the photographs taken during the investigation depict several 440 personal items in the room, including clothing and a towel, none of those items were properly seized or investigated to determine their ownership. In particular, the prosecution sought to rely on a dark blue shirt allegedly associated with the accused. However, the evidence revealed that the prosecution 445 failed to establish where exactly the shirt was recovered from or to whom it actually belonged. During cross-examination, the relevant police witness admitted he did not personally observe where the shirt was taken, thereby creating uncertainty about the exhibit’s origin. 450 [34] During cross-examination, defence counsel highlighted that although clothing was present inside the room where the drugs were found, the police did not seize those clothes. In contrast, clothing from the room said to belong to Kaviraaj was seized. 455 SP8 agreed with this proposition. When questioned by the court as to the reason for this difference, SP8 explained that the police considered it unnecessary to seize the clothing from the room where the drugs were found because the investigation had already relied on other evidence to identify 460 the room as the accused’s rented room. [35] According to SP8, the police relied on the rental receipt bearing the accused’s name, which had been recovered earlier, S/N b3Tyf9aUZkmFt2iExnWKsA together with the pandu-arah given by the accused, and who 465 further pointed out the fourth room on the right side of the house as the room he rented. SP8 stated that, based on the receipt and the accused’s own direction to the house and room, the police were satisfied that the room belonged to the accused and that it was the place where the drugs were kept. 470 SP8 explained that it was sufficient (“sudah cukup memadai”) to rely on the receipt and the accused’s direction. Therefore, the police did not consider it necessary to seize the clothes found inside that room. SP8’s evidence during cross-examination: 475 PB Hafiz : Kejadian no.2. ….dadah jumpa dalam bilik, …ini Inspektor bagitahu ada pakaian tapi Inspektor tak rampas. Sebaliknya dalam bilik yang dikatakan Kaviraaj tinggal, Inspektor rampas pakaian yang 480 didakwa pakaian milik Kaviraaj. Betul ke? Setuju tak? : Setuju. Mah : Kenapa satu rampas dan satu lagi tak rampas? 485 : YA, … semasa tangkapan rumah pertama terdapat satu resit yang dirampas oleh RO yang dia menyewa di rumah Kaviraaj di mana tempat dijumpai dadah di dalam bilik keempat bahagian 490 kanan rumah di mana daripada RO dan S/N b3Tyf9aUZkmFt2iExnWKsA juga pandu arah daripada OKT telah menuju ke bilik tersebut. …. Mah : Soalan, kenapa pakaian daripada bilik itu tak dirampas? 495 PB Hafiz : …soalan YA adalah dalam rumah yang sama, you rampas pakaian Kaviraaj tapi dalam bilik tempat dadah dijumpai itu ada pakaian tapi you tak rampas pakaian itu? : Sudah cukup memadai …resit dan juga 500 pandu arah daripada OKT yang menunjukkan bilik itu adalah tempat dia simpan dadah dan dia sewa. [36] No investigation was conducted to verify whether the shirt 505 belonged to the accused, Kaviraaj, or any other occupant of the premises. In a house accessible to multiple persons, the mere presence of a shirt cannot automatically be attributed to the accused. The uncertainty surrounding the identification and ownership of the shirt, therefore, leaves open the 510 reasonable possibility that the room could have been used or occupied by another person. [37] The law is settled that possession requires proof of knowledge and the power to control the drugs. In PP v Lim Chsung Meng 515 & Anor & Another Appeal [2015] CLJU 1226; [2015] MLJU 2234; [2015] MLRAU 415, the Court of Appeal held that possession need not involve actual physical custody; it is S/N b3Tyf9aUZkmFt2iExnWKsA sufficient if the accused had knowledge of the drugs and the power and intention to control their disposal. Possession may 520 also be joint and not necessarily exclusive. His Lordship Mohd Zawawi Salleh observed: “[26] The possession prohibited by law need not be actual physical custody and control of the drugs; it is sufficient if the 525 prosecution proves that the accused had knowledge of its presence and the power and intent to control its disposal. Further, possession need not be exclusive; a person may be deemed to be in joint possession of a drug which is in the physical custody and control of another person, if he or she 530 wilfully shares with the other the right of control over the drug. [38] A person is said to possess a thing when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of others. 535 [39] Similarly, the Federal Court in Chan Wei Loon v PP and Another appeal [2021] 4 MLJ 660; [2021] 6 CLJ 623; [2021] 5 MLRA 232, emphasised that the prosecution must establish that the accused had custody and control over the drugs or the 540 place where the drugs were found, and that the possibility of access by other persons must be excluded. The court observed that where the evidence reveals the possibility that third parties had access to the premises, the prosecution bears the burden of excluding that possibility before custody and 545 control can safely be attributed to the accused. S/N b3Tyf9aUZkmFt2iExnWKsA [40] The prosecution attempts to overcome these evidential deficiencies by relying on the alleged act of the accused, which led the police to the room, and seeks to admit it under section 27 of the Evidence Act 1950. Section 27 operates as a 550 limited exception to the general rule excluding confessional statements made to police officers. The provision allows the admission of information given by an accused in police custody only to the extent that the information distinctly relates to the fact thereby discovered. In Siew Yoke Keong v PP [2013] 4 555 MLRA 99; [2013] 3 MLJ 630; [2013] 4 CLJ 149, the court recognised that such information may be conveyed not only through spoken words but also through conduct such as pointing out a place which leads to the discovery of a material object. However, the admissibility of such evidence is subject 560 to strict conditions. Only that portion of the information which “distinctly relates” to the fact discovered is admissible, while any accompanying admission of guilt remains excluded, as explained in Wai Chan Leong v PP [1989] 1 MLRA 109; [1989] 3 MLJ 356; [1989] 2 CLJ 1168. 565 [41] The prosecution seeks to rely on the conduct of the accused in pandu-arah the police to the room at No. 58, Jalan Wong Kwong Nam as evidence admissible under section 27 of the Evidence Act 1950. However, for section 27 to apply, the 570 information supplied by the accused must lead to the discovery of a fact which was previously unknown to the police. If the police had already possessed the knowledge of the place or could have obtained it independently, the event amounts S/N b3Tyf9aUZkmFt2iExnWKsA merely to a recovery rather than a discovery, and the section 575 cannot be engaged. [42] This principle was clearly stated in PP v Muhammad Nasir Shaharuddin [1994] 2 MLJ 576; [1994] 4 CLJ 2028, where the court held that section 27 is only applicable where the 580 information given by the accused “leads distinctly to the discovery of a fact of which the police were previously unaware.” Where the police already knew about the place or already had the information, then finding the drugs later cannot be treated as a “discovery” under the section. It is only a 585 recovery, because the police were already aware of the location before the accused gave any information. [43] In the present case, the evidence shows that before the accused allegedly led the police to the house, the police had 590 already recovered a receipt bearing the accused’s name for the rental of a room at No. 58, Jalan Wong Kwong Nam. This receipt provided the police with prior information linking the accused to the premises and included the full address of the location. During cross-examination, the defence suggested 595 that, given the address on the receipt, the police could have located the premises using Google Maps, Waze, or their own knowledge of the Ipoh area, even without any direction from the accused, to which the prosecution witness agreed. In these circumstances, the police already had the means of identifying 600 and locating the premises, and the visit to the address cannot properly be said to have resulted solely from the pandu-arah S/N b3Tyf9aUZkmFt2iExnWKsA given by the accused. The following were the exchange during cross-examination: “PB : Dan setuju tak dengan saya, sebagai 605 seorang pegawai polis… serbuan, narkotik yang berpengalaman, melihat kepada resit no. 58 Jalan Wong Kwong Nam, Inspektor boleh pergi ke alamat tersebut menggunakan inisiatif Inspektor 610 sendiri. Waze ke, Google Map ke sebab dah ada alamat ini no. 58, Jalan Wong Kwong Nam… setuju? : Setuju. : Boleh guna Waze, boleh guna Google 615 Map boleh guna pengetahuan Inspektor sendiri yang dah lama jadi pegawai polis di kawasan Ipoh, betul? : Betul. : Jadi setuju dengan saya Inspektor, 620 walaupun tanpa pandu arah daripada OKT, Inspektor tetap boleh pergi ke alamat 58, Jalan Wong Kwong Nam ini atas inisiatif Inspektor sendiri, setuju? : Setuju.” 625 [44] This evidence demonstrates that the police had already obtained independent information identifying the premises through the receipt before the alleged pointing out by the S/N b3Tyf9aUZkmFt2iExnWKsA accused. In such circumstances, the recovery of the drugs 630 from the room cannot properly be characterised as a discovery flowing exclusively from information supplied by the accused. [45] Accordingly, the court finds that the prosecution’s reliance on section 27 is misplaced. The circumstances disclose at most 635 a recovery of the drugs from a location already linked to the accused through prior information, rather than a discovery resulting directly from the accused’s information. For that reason, the evidential value sought to be attributed under section 27 of the Evidence Act 1950 cannot properly arise in 640 the present case. [46] In the present case, even accepting that the accused accompanied the police to the premises and made a gesture indicating the room, the evidential value of such conduct is 645 substantially weakened by the surrounding circumstances. The room was locked and had to be forcibly opened by the police, no key to the room was recovered from the accused, no personal belongings of the accused were seized from the room, and no forensic evidence connects the accused to the 650 drugs found therein. [47] In light of these evidential deficiencies, this court is unable to safely conclude that the accused had possession, custody or control of the drugs discovered in the room at No. 58 Jalan 655 Wong Kwong Nam, or that he had knowledge of their presence. The surrounding circumstances fail to establish the S/N b3Tyf9aUZkmFt2iExnWKsA necessary nexus between the accused and the drugs discovered in that room. 660 Issue 2: Whether the accused had knowledge of the existence of the drugs [48] The next issue is whether the prosecution has proven that the accused had knowledge of the existence and nature of the 665 drugs found at the two premises. In law, knowledge is an essential element of possession. The Federal Court in Chan Wei Loon v PP and Another Appeal (supra) emphasised that possession must be accompanied by mens rea, namely that the person must be aware of his possession and have the 670 power to deal with the drugs. The prosecution, therefore, bears the burden of establishing that the accused knew of the presence and character of the drugs discovered at the said premises. 675 [49] In the present case, the surrounding evidence raises serious doubt as to whether such knowledge can safely be attributed to the accused. With regard to Lot 367, the evidence shows that the cannabis was discovered outside the house within the compound and not inside the premises, and the gate to the 680 compound was merely closed but not locked, allowing access to anyone who opened the gate. The evidence further shows that other occupants were present in the house, and no personal belongings of the accused were found near the place S/N b3Tyf9aUZkmFt2iExnWKsA where the drugs were discovered. In addition, the forensic 685 examination of the plastic packet did not yield any fingerprints linking the accused to the exhibit. These circumstances create a real possibility that the drugs could have been placed there by another person who had access to the compound. 690 [50] Similarly, in relation to the drugs discovered at No. 58, Jalan Wong Kwong Nam, the prosecution failed to establish that the accused had exclusive access to or control of the room where the drugs were found. The room was locked and had to be forcibly opened by the police, no key was recovered from the 695 accused, and no reliable personal belongings of the accused were identified inside the room. No forensic evidence connected the accused to the drugs or the packaging materials. 700 [51] In these circumstances, the surrounding evidence does not support the inference that the accused had knowledge of the existence and nature of the drugs discovered at the said premises. The prosecution has therefore failed to establish the element of knowledge beyond reasonable doubt. 705 Issue 3: Whether the prosecution has established the offence of trafficking in cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952, including whether the statutory presumption of trafficking arises and whether it has been rebutted 710 S/N b3Tyf9aUZkmFt2iExnWKsA [52] The final issue is whether the prosecution has established the offence of trafficking in cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952, including whether the statutory presumption of trafficking under section 37(da) arises. The defence submits that the presumption cannot 715 operate unless the prosecution first proves actual possession, namely, custody, control, and knowledge of the drugs. This principle was affirmed in Muhammed Hassan v PP [1998] 2 MLJ 273; [1998] 2 CLJ 170, where the court held that it is impermissible to “pile” the presumption of trafficking under 720 section 37(da) upon the presumption of possession under section 37(d). The court emphasised that there must be an affirmative finding of possession based on evidence, rather than a mere legal presumption. 725 [53] In the present case, as discussed earlier, the prosecution has failed to establish that the accused had possession, custody, or control of the cannabis found at either Lot 367 or No. 58 Jalan Wong Kwong Nam, and the element of knowledge has likewise not been proven. In the absence of proof of 730 possession in the criminal law sense, the presumption of trafficking under section 37(da) does not arise. Consequently, the prosecution cannot rely on the statutory presumption to establish trafficking. The charge under section 39B(1)(a) of the Dangerous Drugs Act 1952 has therefore not been made 735 out even to a prima facie standard. S/N b3Tyf9aUZkmFt2iExnWKsA Other issue : Recorded statement of Kaviraaj [54] The prosecution applies to admit the recorded statements of Kaviraaj a/l Arumugam under section 32(1)(i) of the 740 Evidence Act 1950 on the basis that he cannot be traced despite reasonable efforts. Kaviraaj a/l Arumugam is the son of the registered owner of the house at No. 58, Jalan Wong Kwong Nam, and the prosecution alleges that the accused had rented the fourth room in that house from him. While this Court 745 accepts that some steps were taken by the prosecution to locate the witness (Kaviraaj), the admissibility of such statements must be approached with caution, particularly where their contents are relied upon to establish possession, custody, and control of the room by the accused. 750 [55] In the present case, as earlier found, the investigation revealed material deficiencies, including the failure to seize and examine personal belongings within the room and the absence of reliable evidence connecting the accused to the premises. 755 In these circumstances, the recorded statements of Kaviraaj are sought to fill critical evidential gaps, particularly regarding tenancy and control. However, admitting such statements without the opportunity for cross-examination would prejudice the accused, as the defence is deprived of testing the 760 truthfulness, accuracy, and context of those assertions, especially on matters central to the prosecution’s case. S/N b3Tyf9aUZkmFt2iExnWKsA [56] The most compelling challenge by the defence is that the prosecution is effectively attempting to rely on untested 765 hearsay evidence to establish a key element of possession, which it failed to prove through proper investigation. Section 32(1)(i) Evidence Act 1950 is not intended to cure investigative shortcomings. In light of the evidential weaknesses identified, this Court finds it unsafe to place sole 770 reliance on the recorded statements of Kaviraaj to establish possession, custody, or control against the accused. Conclusion 775 [57] In conclusion, having undertaken a maximum evaluation of the prosecution’s evidence, this court finds that the prosecution has failed to establish a prima facie case against the accused. The evidence does not satisfactorily prove that the accused had possession, custody, or control of the drugs discovered at 780 either No. 58, Jalan Wong Kwong Nam, Taman Pertama, Ipoh, or Lot 367, Persiaran Hala Bekor, neither has the prosecution proven that the accused had knowledge of the existence and nature of the drugs. In the absence of proof of possession, the statutory presumption of trafficking cannot arise. Accordingly, 785 the accused is acquitted and discharged of all charges without being called to enter his defence. S/N b3Tyf9aUZkmFt2iExnWKsA Dated : 15 May 2026 790 [MOSES SUSAYAN] JUDGE HIGH COURT IN MALAYA 795 AT IPOH, PERAK Counsel : 800 For the Prosecution : Geetha Jora Singh Deputy Public Prosecutor Prosecution Unit [Perak State Legal Adviser’s Office] Ipoh, Perak 805 For the Accused : Mohamad Hafiz bin Jalaludin (together with Shahrul Nizam bin Mohd Rabi, Aliff Aiman bin Rusli & Izzat Fakhri bin Halimi) 810 Advocates and Solicitors [Messrs Alif, Hafiz & Partners] Ipoh, Perak 815 S/N b3Tyf9aUZkmFt2iExnWKsA (Notice: This Grounds of Decision is subject to official editorial revision) S/N b3Tyf9aUZkmFt2iExnWKsA