Wong Ming yang (JA-45A-34-04/2021)

Wong Ming Yang (NRIC: 951001-01-6789) was arrested on 18.5.2020 and charged with trafficking 352.35gram of Methamphetamine under Dangerous Drugs Act 1952.

Bahawa kamu dituduh dengan kehendak Pendakwa Raya dan pertuduhan terhadap kamu dibacakan seperti berikut: "Bahawa kamu pada 18/05/2020 jam lebih kurang 1800 petang di bertempat di alamat Kaunter Pejabat City Link Express Skudai di dalam daerah Johor Bahru, di dalam Negeri Johor Darul Takzim telah mengedar dadah berbahaya berat bersih 352.35gram iaitu Methamphetamine. Oleh itu kamu telah melakaukan suatu kelahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama." Summary of the prosecution case.

On 18.5.2020, at approximately 6pm, Insp Nazarul Izwan bin Abdul Manaf (SP3) and his men from the police station Ibu Pejabat Daerah, Johor Bahru Selatan, acting on information went to the Skudai branch of the Citi-Link Express courier office.

Upon arriving at the office, they saw the accused at the counter accompanied by a Citi-Link staff member, Nooridayu binti Samsir (SP4). After identifying himself as a police officer, SP3 proceeded to arrest the accused. A subsequent body search of the accused revealed no incriminating items.

In the presence of the accused, SP3 opened a sealed box (P5A) that the accused had intended to ship. Inside the box was a milk powder container branded 'Enfalac' (P5B). Further inspection of the container revealed 2 aluminium packets (P5C) and (P5D). Inside P5C, SP3 discovered a clear plastic packet (AZ5) containing a crystalline powder suspected to be drugs while P5D contained milk powder.

Consequently, the accused was arrested in accordance with s 28A of the Criminal Procedure Code (CPC). On the accused, SP3 discovered the following items namely; i. City-Link Express acknowledgement receipt no:960307813030847, marked as E from the box marked A. ii. City-Link Express invoice consignment note no:960307813030847, marked as F from the box marked A. iii. One handphone Iphone11, marked as G. iv. One pink hello kitty bag, marked as H, containing as below; v. One access card for Raffles Suite marked as I. vi. ATM card for Hong Leong Islamic Bank no:5315 9100 0610 6925, marked as J. vii. A set car keys together with the remote control for a white Perodua with the registration number W1363E, marked as K, attached to the pink Hello Kitty bag viii. Class B2 and D driving license under the name of Wong Ming Yang, marked as L. ix. and a white Perodua Myvi with registration number W1363E.

The accused together with the seized impugned drugs and items was brought to the Police Station IPD Johor Bahru. The items and impugned drugs were duly recorded and acknowledged by the accused in the search list (P12). A police report was lodged by SP3 as P11. Subsequently on 19.5.2020, these items and impugned drugs were delivered to the investigating officer Insp Aizat Zulfadli bin Hassan (SP5) and recorded in the handover list (P13).

At the close of the prosecution case, based on maximum evaluation of the credible evidence and testimonies of the prosecution witnesses, I had to decide whether a prima facie case under s180 of CPC had been made out against the accused. See the off-cited case of Balachandran v PP [2005] 1 CLJ 85 (FC) and Looi Kow Chai v PP [2003] 2 MLJ 65 (CA).

The issues which I had to decide are as follows: i. whether the impugned drugs seized on 18.5.2020 are dangerous drugs as listed in the $ 1^{\mathrm{st}} $ schedule Part III of s2 of the Dangerous Drugs Act 1952 (DDA); ii. whether the accused was in possession of the drugs, namely the accused had knowledge and custody or control of the drugs; iii. whether there was a break in the chain of evidence as presented by the prosecution; iv. whether the prosecution had successfully made out a prima facie case against the accused according to the charge P2. FIRST ISSUE Whether the impugned drugs seized on 18.5.2020 are dangerous drugs as listed in the $ 1^{\mathrm{st}} $ schedule Part III of s 2 of the Dangerous Drugs Act 1952 (DDA).

The testimony of the SP6 as well as his chemist report P17 showed that the aluminium packets P5C containing a clear packaging (AZ5) recovered was Methamphetamine with net weight 352.35gram.

The counsel did not challenge the SP6's analysis nor his chemist report in P17. The acceptance of expert evidence from the chemist by court has been well established in the off-cited case of Munusamy v PP [1987] 1MLJU 492 (SC).

Since the evidence of SP6 is unchallenged, I am satisfied that the drugs seized on 18.5.2020 are Methamphetamine and are of the type listed as dangerous drugs under Part III of s2 of DDA. SECOND ISSUE Whether the accused was in possession of the drugs, namely the accused had knowledge and custody or control of the drugs;

Since the accused had been charged under s39B(1)(a) DDA, possession is an essential ingredient under these offences. It is trite that what constitutes "possession" is a question of law. See the case of Yee Ya Mang v. PP [1972] 1 MLJ 120 (HC) and PP v. Badrulsham bin Baharom [1988] 2 MLJ 585 (HC). However, it is a question of fact whether the accused is in possession of it. The onus is on the Prosecution to prove this. See the case of Muhammed bin Hassan v. PP [1998] 2 CLJ 170 (FC) at page 191: "In our view, to constitute "possession" under s. 37(da) of the Act, so as to be capable of forming one of the ingredients thereunder thereby giving rise to the presumption of trafficking, there must be an express affirmative finding (as opposed to legal presumption) of possession as understood in criminal law, based on evidence."

Hence the Prosecution would have to prove both the mental (mens rea) and physical (actus rea) element as there can be no possession if either one is missing. However, in certain circumstances there can be a statutory presumption of possession as set out in s.37 DDA. See the case of Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113 (FC) at page 124 where his Lordship Zulkefli Makinudin FCJ had said as follows: [15] The law is well settled that having only custody or control over the said drugs is insufficient to establish "possession". The physical act of custody or control must be accompanied with evidence that the accused had knowledge of the said drugs. In the absence of any statutory presumption, knowledge has to be proved either by direct evidence or circumstantial evidence. Mere knowledge alone without exclusivity of either physical custody or control or both is insufficient in law to constitute possession, let alone trafficking. (See the case of Chan Pean Leon v. PP [1956] 1 LNS 17)."

It is the prosecution's contention that the accused had custody and control over the box P5A and its contents (drugs) as he had personally delivered it to the Citi-Link counter. There were no other customers present in the Citi-Link shop. Furthermore, the accused had also completed the necessary details for the consignment note P6. The accused does not dispute that he delivered P5A to Citi-Link. These can be observed from the cross examination of the staff of Citi-Link, Nooridayu binti Samsir (SP4) at page 62 & 63 of NOP; "S : Puan boleh setuju dengan saya pada tarikh yagn sama pukul 5.45 seorang lelaki Cina telah datang dengan 1 kotak. J : Ya. S : Dalam ingatan puan adakah kotak itu sama dengan kotak yang dibawa oleh 2 lelaki India tersebut? J : Saya tak sure. S : Bila lelaki Cina ini datang menghantar kotak, boleh setuju dengan saya kalau merujuk kepada ID8, dia datang dengan mengangkat kotak dalam gambar 1. J : Gambar 1, betul. S : Puan boleh beritahu Mahkamah kotak itu di seal dengan pita pelekat atau terbuka? J : Kotak yang pertama pita pelekat. S : Jadi bila lelaki Cina itu datang memang sudah di seal lah? J : Betul. S : Dan dia datang dan dia telah menyatakan bahawa barang ini perlu dihantar ke Singapura. J : Betul. S : Jadi SOP seterusnya untuk dia isi borang. Atau borang telah siapsiap diisi? J : SOP seterusnya kita akan minta penghantar untukisi declaration form. S : Yang mana satu? J：P6. S : Jadi maklumat-maklumat yang diisi oleh orang tersebut adalah from siapa-siapa.

This was confirmed by the testimony of Muhammad Rozaimi bin Mazni (SP2) a staff member on duty in the Citi-Link shop who served the accused as well. I find both SP2 and SP4 to be truthful witnesses. They provided a straightforward account of the day's events. They do not know the accused and have no motive to provide false testimony.

While the accused has custody and control over the drugs, did he have knowledge of it? After all, mere custody and control of the drugs are insufficient to prove possession under s 39B (1)(a) of DDA. The accused must also be proven to have had knowledge of the drugs found in the box P5A.

It is trite that knowledge can typically only be proven by drawing the necessary inferences from the facts and circumstances of the case. See the off-cited case of PP v Reza Mohd Ahmad Shah [2002] 4 MLJ 13 where the learned judge opined as follows: "Thus, in drawing inferences from proved facts, the court is entitled to infer knowledge on the part of a person on the assumption that such a person has the ordinary understanding expected of him. The court is not concerned with the knowledge of a reasonable man but with reasonable inferences to be drawn from a situation. There are many circumstances from which knowledge can be inferred. One instance is the inference to be drawn from the act of a person in absconding or fleeing from the scene of a crime."

Hence the issue is whether the accused was so positioned in such a way that he had power to deal with the drugs as owner to the exclusion of all other persons and intended to do so should the occasion arise. From the testimonies and evidence adduced, the answer is Yes. See the case of Siew Yoke Keong v PP [2013] 3 MLJ 630 (FC).

The accused's presence at the Citi-Link shop and the act of delivering box P5A to the counter accompanied by the consignment note P6, demonstrates that the accused had custody or control of both P5A and the drugs therein. After all, the accused was in the position to deal with it as an owner to the exclusion of all other persons. This is in accordance with the principles established in the off-cited case of Chan Pean Leon v PP [1956] 1 MLJ 237 where Thompson J had explained possession to mean that: "a person must not only be so situated that he can deal with the thing as if it belongs to him, he must also have the intention to deal with it if he so wishes. He had further said that intention is a matter of fact which cannot be proved by direct evidence but by inference from the surrounding circumstances."

There must exist elements of mens rea and actus rea on the part of the accused before the accused can be found to be in possession of the drugs. The prosecution would have to prove mental (mens rea) and physical (actus rea) as there can be no possession if either one is missing. See the case of Saad Ibrahim v PP [1968] 1 MLJ 158 at page 159, the learned judge opined as follows: "In my opinion mere possession is one thing and possession with mens rea is another. Possession which incriminates must have certain characteristics. The possessor must be aware of his possession, must know the nature of the thing possessed and must have the power of disposal over it. Without these characteristics possession raises no presumption of mens rea. Without mens rea possession cannot be criminal except in certain cases created by statute, which is not applicable in this case."

However, the accused contends that he was an innocent/ passive carrier and had no knowledge of the contents of P5A. The defence of passive carrier is recognised in Malaysia as seen in the case Liam Heng Boon v PP [2014] 5 MLJ 259 (CA) where his lordship Abdul Malik Ishak JCA opined as follow: [43] We acknowledge that passive possession is a recognised defence to trafficking. But, with respect, the facts in the present appeal cannot turn the appellant from a trafficker to a mere passive carrier. There was evidence that the appellant attempted to flee before he was arrested by SP2 and the police party. The Federal Court in Public Prosecutor v Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193; [2006] 2 CLJ 129, considered the defence of the respondent there and concluded that the respondent there was not a passive carrier. [53] In order for the appellant to rebut this presumption of trafficking that had been invoked against him, he had to establish two things. Firstly, the appellant could lead by way of an affirmative evidence before the trial court that the subject matter of the charge was not dangerous drugs, to wit, heroin and monoacetylmorphines as defined under s 2 of the DDA, and even if it was heroin, its weight had not exceeded 15g and even if it was monoacetylmorphines, its weight had not exceeded 15g. Secondly, even if the appellant fails to do that, he would have to lead affirmative evidence on the balance that his conduct was not consistent with trafficking. And if the appellant fails to do that, a verdict of conviction against him must necessarily follow."

See also the case of PP v. Haling Arala Jimjani [2008] 5 MLJ 331; [2008] 4 CLJ 163, at p 342 (MLJ); p 174 (CLJ), where his Lordship Abdull Hamid Embong HMR said: “[39] Adalah jelas daripada nasihat Privy Council dalam kes itu bahawa unsur-unsur pengedaran seperti terdapat dalam s. 2 ADB juga tidak boleh dibaca tanpa mengambilkira konsep dan rasional di sebalik unsur-unsur yang terdapat dalam seksyen itu. la harus dipertimbangkan dengan konsep adanya pembekal dan adanya penerima, yakni kewujudan dua pihak untuk mencapai maksud sebenar unsur-unsur tersebut. Tanpa ciri ini perbuatan membawa itu sahaja hanya boleh ditakrifkan sebagai satu milikan pasif oleh pembawanya.”

The accused had delivered P5A to Citi-Link as instructed by 3 individuals namely Tew Han Cheong (Tew), Vun Teck Chung (Vun) and Yeo Soon Yee (Yeo). The accused claimed that he had collected P5A from No. 23, Jalan NB2 13/7, Taman Nusa Bestari 2, 79150 Bandar Nusajaya, Johor. The address in Singapore for the delivery of P5A was provided by them.

These 3 persons were not fictitious persons as they were arrested from the house based on the information provided by the accused. Their arrest was confirmed by ASP Nazarul Izwan bin Abdul Manaf (SP3) as recorded in a police report lodged D14. Furthermore, the drugs found in the house are similar to the ones which were found inside P5B (Enfalac Box).

The accused further contends that there was no evidence the accused was involved in the packaging or opening of P5A or P5B. No personal items or belongings of the accused were found in P5A and P5B. According to the accused's counsel, the conduct of the accused in the Citi-Link shop by giving his NRIC to the Citi-Link staff and waiting for more than 15 minutes was consistent and relevant to that of an innocent carrier. The relevancy and conduct of the accused are provided for in s8 of Evidence Act. Section 8: Motive, preparation and previous or subsequent conduct

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

According to the accused, the police had an obligation to investigate the 3 individuals which he had identified (Tew, Vun and Yeo). This obligation was established in the case of Alcontara Ambross Anthony v PP [1996] 1 CLJ 705 (SC), a principle now recognised as the Alcontara Notice. The accused maintained that if the police had investigated the 3 individuals, it would have corroborated the accused's defence of being an innocent carrier.

The accused contended that the court should draw an adverse inference under s114 (g) of Evidence Act due to the prosecution's failure to call them as a witness. It was argued that their testimony, if available, would corroborate the accused's claim that they had handed the box P5A to the accused without being informed of its contents.

However, given how they were arrested based on the accused's statements, their evidence could be tainted by their personal agenda. Consequently, such testimony would not be material in determining whether the accused was unaware or was he wilfully blind to the contents. This determination necessarily remains a question of fact for the court to decide.

Furthermore, in the present case subsequent to their arrest, the police did conduct their investigation thoroughly whereby the police rejected the accused's claim of being an innocent carrier and instead charged the accused with trafficking drugs. It is trite that discretion to charge falls strictly within the purview of the prosecution. See the case of Manikandan Patchiappan v PP [2016] MLJU 1094 where her ladyship Tengku Maimun JCA (as she then was) said as follows: [29]...As for the charge, the prerogative remained with the prosecution to proffer the charge under the DDA against the appellant, as provided for under Article 145(3) of the Federal Constitution and section 377(b) of the Criminal Procedure Code. The third issue raised by learned counsel was wholly unmeritorious."

The accused maintains that he was an innocent carrier as he did not know what was inside Box P5A. After all, the contents inside P5A could not be seen from the exterior. This is corroborated by the testimony of the investigating officer SP5 that by looking at P5A itself, it did not reveal the presence of drugs inside it. The drugs were contained in P5C which was one of 2 packets found inside an Enfalac milk container P5B, itself being located inside P5A. The physical concealment was also corroborated by the testimony of SP2 and SP4 both staff of Citi-Link. See the testimony SP2 and SP4: Testimony of SP2 at page 19 of NOP: "S : Dalam consignment kamu katakan bahawa kamu hanya buka kotak di luar tersebut, benar? J : Ya. S : Dan kotak di dalam kamu tidak buka? J : Tak buka. S : Kalau dengan mata kasar kita tak nampak apa yang dalam kotak tersebut, betul? J : Betul." Testimony of SP4 at page 67 of NOP: "S : Jadi seterusnya saya ingin bertanya berkenaan dengan pembukaan, puan kata tadi kotak tersebut telah dilekatkan dengan pita pelekat. J : Setuju. S : Jadi puan telah membuka menggunakan pisau? J : Ya betul. S : Dan buka tengok dalam itu hanya ada 1 kotak Enfalac sahaja? J : Ya betul. S : Dan puan tadi beritahu puan tak buka langsung kotak Enfalac itu. J : Betul. S : Dengan mata kasar kita tak boleh tahu apa isi kandungan dalam kotak Enfalac itu? J : Ya betul."

In the ordinary course of business, the staff in Citi-Link would not typically be suspicious of the parcel destined for Singapore. As a courier company, it would have been standard practice for them to accept such shipment. However, an unusual incident occurred in the morning in question.

There was an earlier attempt by 2 Indian persons who came to Citi-Link to ship a parcel. When a staff member SP4 asked them to fill in the details in the consignment note and to give their NRIC to the staff, they left the premises on the pretext that they did not have their NRIC. They left behind the consignment note with the details filled in. According to SP4, a previous case involving prohibited items shipped to Singapore had made her more cautious. A police officer, referred to as "Encik Mat", had previously visited the branch and provided his contact information, asking her to report any suspicious activity. See evidence of SP4 at page 65 of NOP: "S : Jadi pada pukul 10, 2 lelaki India ini datang puan rasa mencurigakan dan puan terus memanggil pihak polis? J : Betul. S : Puan ingat lagi kepada siapa puan bercakap? J : Dia cuma bagi nama samaran Encik Mat. S : Puan call ke mana? J : Personal phone. Sebelum hari kejadian itu beberapa hari sebelum itu dia ada datang dan dia bagi nombor telefon. Dia kata kalau ada apa-apa barang mencurigakan terus direct call dia. S : Boleh saya tahu kenapa dia tiba-tiba beberapa hari sebelum datang ke pejabat puan? J : Pernah ada case barang dah sampai ke Singapura. Barang yang sama. S : Barang salah? J : Barang terlarang. Jadi saya lebih careful bab itu."

When they failed to return, SP4 became suspicious and called the police. The police instructed her to contact them if they returned. Hence later that day when the accused came with the parcel to be shipped to the same address as in the earlier consignment note left behind, SP4 called the police. See the evidence of SP4 at page 21 of Encl 95; "S : Puan tahu tak macam mana tiba-tiba polis boleh datang ke tempat tersebut? Macam mana? Boleh Puan cerita tak? J : Pada tarikh kejadian tersebut pada pagi itu ada seorang lelaki berbangsa India, bukan seorang ada dua orang, untuk hantar barang ke Singapura dan pada waktu itu, dia memberi saya satu sticker note yang berserta alamat Singapura S : Sekejap Puan, maksudnya pagi itu masa tarikh itu ada 2 orang lelaki India datang nak hantar ke alamat yang sama? J : Alamat sama dan diberikan saya sticker note untuk saya key in S ： Okay kemudian? J : Kemudian saya tanya barang apa, dia bagi saya tak sure apa barang dia cakap, tapi masa itu saya tak sempat buka lagi. Dan saya minta IC ataupun lessen sebab saya nak rekod tambahan untuk saya punya details lah untuk masuk dalam form. Tapi dia tak nak bagi dia tak bagi dia kata “okaylah tak apa sekejap lagi saya datang balik” dan dia keluar bawa sekali dengan shipment itu tetapi dia tertinggal note yang ada alamat pada saya. Dia tertinggal dia tak ambil dia ambil barang sahaja. Dia kata sekejap lagi dia datang balik, nanti saya datang balik dia kata. Jadi saya curiga pada barang itu jadi saya menelefon pihak polis memberitahu ada seseorang ini ada customer yang datang dia cancel hantar barang ke Singapura sebab pada waktu saya minta IC dia tak nak bagi lepas itu dia cakap sekejap lagi dia datang tapi saya tak sure barang apa, Cuma saya curiga saya takut barang larang.”

The defence contended that the police's failure to investigate and secure the evidence concerning the 2 Indian individuals regarding their attendance in the Citi-Link shop had adversely affected the accused's defence of passive possession.

However, from the evidence of SP4, the 2 Indian individuals had left the Citi-Link shop without providing their NRIC when they were requested to do so. Without their necessary particulars, it would be unreasonable to expect the police to identify or locate them. Furthermore, their evidence, if available, would not have exonerated the accused. Despite their earlier visit on 18.5.2020, there is no evidence suggesting that they know the accused or involved in the accused's delivery of his parcel P5A to Citi-Link shop.

Hence from the evidence presented by the prosecution, is it possible to draw the inferences that the accused had knowledge of the drugs in the box P5A, to the exclusion of any other alternative inferences? Where an alternative inference is possible, the court must draw the inference which is most favourable to the accused.

In our case, none of the 3 individuals (Tew, Vun and Yeo), were called to testify regarding whether they had informed the accused of the contents of box P5A before handing it over. From the exterior of the box P5A itself, it was not possible to tell the contents inside. In fact, the drugs in P5C were only discovered when the Enfalac was opened.

Moreover, he had no issue with providing his identification via his NRIC and he willingly waited at the Citi-Link office for approximately 15 mins without becoming suspicious while the Citi-Link staff stalled him waiting for the police to come. Consequently, the accused may not have had knowledge that there were drugs inside the box P5A.

Hence, since there is doubt over whether the accused had knowledge of the drugs even though the accused had custody and control, the presumption of trafficking under s37(da) DDA does not apply. It is my opinion that under such circumstances, the presumption of knowledge under s37 (d) DDA applies. See s37 (d) DDA which reads as follow: Section 37. Presumptions. In all proceedings under this Act or any regulation made thereunder- (d) any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug:

Once the prosecution proves custody or control, then the court may invoke the presumption of knowledge provided in s 37 (d) of DDA as seen in the case PP v Tan Tatt Eek [2005] 6 AMR 543 where Judge Nik Hashim bin Nik Ab Rahman FCJ stated at pp 551-552 about possession: "In the present case, the learned trial judge found that the bag was held in the respondent's hand and that the respondent had physical custody and control of the bag. There was no express affirmative finding of possession as understood in criminal law by the learned trial judge. In the absence of such finding, the learned trial judge ought not to have called the respondent to make his defence on the charge of trafficking. In our view, the grounds on which the learned trial judge relied to find the respondent guilty of trafficking were completely untenable and unsustainable and could not withstand scrutiny. At most, the prosecution had only proved custody and control of the bag and the packages of the impure drugs, and under s37(d), the presumption could have been invoked for possession and knowledge of the nature of the dangerous drugs in the bag and consequently, the respondent to be called to enter his defence on a charge of possession under s 12(2) of the Act. On the authority of Muhammed b Hassan, the prosecution, however, cannot rely on the presumption of possession and knowledge under s 37(d) to presume that the respondent was trafficking in the dangerous drugs under s37(da)(iiia)of the Act." THIRD ISSUE Whether there was a break in the chain of evidence as presented by the prosecution

The prosecution has to show that the chain of evidence from the period that the drugs listed in the search list P12 were recovered by SP3 and were then handed over to SP5 before being submitted to the chemist department until the completion of the analysis by the chemist SP6 are the same substances namely Methamphetamine. See the case of Gunalan Ramachandran & anor v PP [2004] 4 CLJ 551 (CA).

According to the evidence of SP3, the drugs in P12 which were duly marked and signed by the accused were delivered to SP5 on 19.05.2020 as shown in P13 before being handed over to the Department of Chemistry Malaysia on 21.05.2020.

As such, the court is satisfied that there is no break in the chain of evidence. See the case of Christopher Uchenna Efogwo v PP [2017] 1 LNS 1479. FOURTH ISSUE Whether the prosecution had successfully made out a prima facie case against the accused according to the charge P2.

It is trite that before a prima facie case can be said to be established, there must be sufficient evidence to establish every legal ingredient of the charge against the accused such custody or control and knowledge of the drugs. See the case of Tan Boon Kean v. PP [1995] 3 MLJ 514 (FC).

The court must be mindful of the salutary reminder given by the learned judge Sharma J in the case of PP v. Saimin & Ors [1971] 2 MLJ 16 at page 17 where he said as follow: "... It is the duty of the prosecution to prove the charge against the accused beyond all reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer. The proof of a case against the accused depends for its support not upon the absence or weakness of the explanation on his part but on the positive affirmative evidence of his guilt given by the prosecution. Numerous rules have from time to time been suggested by the courts when dealing with the question of the guilt or innocence of the accused."

After conducting a maximum evaluation of the prosecution's evidence and witness testimonies, I find that the prosecution had established that the accused had possession of the drugs by relying on the presumption under s37(d). Having done so, in accordance with the principles established in Muhamad Hassan [1998] 2 MLJ 273 (FC) to avoid the prohibition against double presumptions, I declined to apply the presumption of trafficking under section 37(da).

Furthermore, the accused's overt act of delivering the parcel to Citi-link for shipment to Singapore falls squarely within the definition of trafficking under section 2 of the DDA.

Consequently, I am satisfied that the prosecution has proven the essential elements of the charge to a prima facie level. See the case of Nobes Weah Ezike v Pendakwa Raya [2010] 1 CLJ 576 (CA). In that instance, the Court of Appeal affirmed a conviction for trafficking where the accused sent an envelope containing drugs via a courier counter (UPS) to the United States. The court held that the act of 'mailing' (mengepos) the parcel constituted trafficking under the Section 2 definition of the DDA, and the presumption of knowledge was correctly invoked under Section 37(d).

As such, I called upon the accused to enter his defence for the charge. DEFENCE CASE Whether the defence had managed to raise any reasonable doubt on the prosecution case. Should the court allow the accused to give his sworn statement after he had closed his defence but before the court delivered its decision.

Initially when presented with the options under s 173 (ha) of Criminal Procedure Code (CPC), the accused chose not to give any sworn testimony nor call any witnesses. Despite multiple opportunities offered to the accused, he chose to exercise his right to remain silent. Section 173 (ha) When the Court calls upon the accused to enter on his defence under subparagraph (h)(i), the Court shall read and explain the three options to the accused which are as follows:

to give sworn evidence in the witness box;

(ii) to give unsworn statement from the dock; or

(iii) to remain silent.

Consequently, both the prosecution and defence proceeded to file their respective submission.

However, on the date scheduled for the delivery of my decision, the accused changed his mind and expressed a desire to give his sworn testimony from the witness box.

After hearing submissions from both prosecution and defence, I exercised my discretion under s 425 of CPC and allowed the accused to give his sworn statement from the witness box. s425 Power of Court to summon and examine persons "Any Court may at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and reexamine any person already examined, and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case."

This section grants the court broad discretion that can be exercised at any stage of the inquiry, trial and proceedings. The court may summon any person as a witness or any person in attendance even though not summoned to be examined or recalled and re-examined provided their testimony is essential to a just decision of the case.

It has been said that s425 consists of 2 limbs where the first limb is discretionary where the court has wide authority and the second limb is mandatory where the evidence of the person to be summoned must be essential to a just decision of the case. See the case of PP v Phon Nam [1988] 3 MLJ 415 (SC) where Abdul Hamid Ag LP stated: "Section 425 of the Criminal Procedure Code is clearly divided into two limbs; first, a discretionary provision which provides that the court may, on an application, summon any person as a witness or recall and re-examine any person already examined at any stage of any inquiry, trial or other proceeding under the Code. In exercising the discretion under the first limb, the court clearly must proceed with utmost circumspection especially when there was likelihood of the fresh evidence proving to be prejudicial to the accused. Secondly, an imperative provision which requires the court to do so where the court is satisfied that the evidence to be summoned would appear to the court to be essential to a just decision of the case. (See Mohd Azam v Mohd Iqbal PLD 1984 SC 95 with the corresponding section in the Pakistan Criminal Procedure Code.)"

By incorporating the phrase "essential to a just decision", Parliament intended for the court to exercise its discretion judiciously. This power should only be invoked when the court is convinced that the evidence is necessary to serve the interest of justice.

It is important to note that the court in exercising its discretion, it does not necessarily mean that it favour the accused as it may be used against the interest of the accused as much as in his favour. The word "just" means that the action taken by court must be fair and must not result in an injustice either to the accused or prosecution. See Mallal's Criminal Procedure (6th edition) at page 7001 where the learned author in dealing with words "essential to a just decision" in s 425 of CPC said as follows: "By using the word 'essential' and qualifying the word 'decision' by the adjective 'just', Parliament has clearly indicated that the power should be exercised very cautiously and only where the court thinks the evidence absolutely necessary in the interest of justice. The words 'just decision' do not necessarily imply that the decision should either be in favour of the prosecution or the defence. Thus the discretion may be used against the interests of the accused, as much as in his favour. By using the word 'just' the court is cautioned against taking any action which may result in injustice either to the accused or the prosecution. The provision may be used to cure the omission of proof of an ingredient of the offence. It may also be used to cure inadvertent omissions by the prosecution, or by the defence. What is necessary for a just decision depends on the facts of each case."

In a case of Shahrullah Abdul Rakeb v PP [2011] CLJU 1721 (CA) where the court allowed the prosecution's application under s425 of CPC to recall a witness after the accused had closed its defence, the learned judge opined as follows: [36] This section is a blanket approval to the court at any stage of inquiry, trial or other proceeding to summon, examine, re-examine any person in attendance or those who have given evidence if their evidence appears to be essential to the just decision of the case. The learned JC applied s. 425 of the Criminal Procedure Code correctly when His Lordship held that the rebuttal evidence was allowed "for the just decision of the case" (see the written judgment of the learned JC at p. 229 of the appeal recored at jilid III). [37] Reception of rebuttal evidence varies from case to case and each case has to be considered on its own facts. Thus, if the rebuttal evidence appears essential to the just decision of the case within the meaning of s. 425 of the Criminal Procedure Code, it is legally permissible to allow the rebuttal evidence to be admitted as evidence."

At the end of the prosecution's case, a prima facie case had been established by applying the presumption of knowledge as in s 37 (d) of DDA. To rebut this presumption on a balance of probabilities, the accused would have to demonstrate that he was not aware of the contents within the box P5A. He would necessarily need to give his testimony from the witness box to rebut the presumption in order to arrive at a just decision.

The accused's testimony does not prejudice prosecution as the accused remains subject to cross examination and the prosecution retains the right to provide rebuttal evidence. Ultimately, given the accused is charged with a serious offence under s39B(1)(a) DDA, the court should exercise its discretion in favour of the accused. Accused Story.

The brief facts of the accused's testimony can be summarised as follows: i. On 18.5.2020, at approximately 5pm awhile the accused was at home in his apartment in Perling Apartment, Perling, he received a phone call from Pak Cik Mr Tew. Following this, the accused went to Mr Tew's residence in Tun Aminah to collect a parcel for delivery to the post office. ii. Upon arrival, Mr Tew handed a parcel, a copy of the invoice (P6) and RM20 to the accused. The parcel was wrapped in clear plastic. The accused maintained that he was unaware of its content. iii. The accused then proceeded to the post office and handed the parcel and the document P6 to the staff. After being asked to wait, police arrived approximately 10-15 minutes later and arrested the accused. iv. Following the arrest, the accused led the police to Mr Tew' s residence in Tun Aminah where the police arrested 3 other individuals.

It is clear that the accused claimed to be an innocent carrier with no knowledge of the parcel's contents. However, his testimony revealed 2 discrepancies. The first relates to the place where the accused went to deliver the parcel, namely, the post office or Citi-Link shop. The second relates to the description of the parcel whether it was a plastic bag or a box which was given to the accused by Mr Tew and delivered to the post office.

Since the accused was arrested at the Citi-Link shop, it is reasonable to conclude that his references to the 'post office' in his testimony, he was actually referring to the Citi-Link shop. This was not disputed by the accused counsel in his submission.

Regarding the description of the parcel, when the parcel was tendered and marked as exhibit P5, there was no challenge as to it being a box and not a plastic bag. In fact, when the photos P8(2) showing the box were tendered by the investigation officer SP5, no objection was raised by the accused in the prosecution's case. Hence, I am constrained to hold that the parcel that was delivered to the Citi-Link shop on 18.5.2020 was indeed a box.

The court must determine whether the circumstances surrounding the box P5A should have reasonably aroused suspicion in the accused. Although the accused claimed that he is an innocent carrier as he was not aware of the contents, it is incumbent on the accused to make the necessary enquiry of the box P5A. He failed to do so. Furthermore, it was the first time he had done courier service. See the cross examination of the accused at page 13 of NOP of the defence case; "S : Setuju dengan saya, kamu telah membuat, saya panggil dengan izin Yang Arif servislah untuk menghantar barang ini dah banyak kali. Betul? J : Saya tidak setuju. S : Eh, maksudnya? Ini kali pertama ke buat? J : Hantar kali pertama. S : Maksudnya, tak pernah jadi runner lah J : Tidak pernah"

The accused's lack of concern is very telling as he was already aware that drugs were present in Mr Tew's residence in Taman Aminah when he arrived to collect the box P5A. See page 14, 15 and 17 of NOP of defence case; Page 14: "S : Setuju dengan saya sebenarnya kenapa kamu bawa polis ke sana adalah untuk bagitau dengan polis saya tahu ada dadah lain di situ. Setuju dengan dengan saya? J : Setuju Yang Arif." Page 15: "S : Setuju dengan saya kenapa kamu kata kamu tahu ada dadah lain di Taman Tun Aminah sebab itu adalah kamu punya rakan-rakan. J : Mereka bukan kawan saya, tapi saya tahu ada dadah lain. S : Tadi saya tanya dengan kamu, kamu bawa polis pergi ke rumah itu sebab kamu tahu ada dadah lain dan kamu setuju. J : Ya Yang Arif" Page 17: "Mah : Saya ada 1-2 soalan. Bila kamu bagitahu mahkamah tadi kamu tahu ada dadah dalam rumah itu, kamu tahu selepas polis bagitahu kotak itu ada dadah baru kamu tahu rumah itu ada dadah atau macam mana? J : Saya tahu sebelum itu."

The court must determine whether the accused acted as an innocent carrier or if his action constituted wilful blindness. The determination depends on the circumstances surrounding the delivery of the box P5A.

Since the accused had every opportunity to enquire about and to inspect the contents of the box P5A but failed to do so, the accused chose to be wilfully blind to the content in the box. In such instances, the accused is presumed to know. See the case of Jorge Crespo Gomez v PP [2020] 8 CLJ 292 (FC) at page 304 her ladyship Zabariah Mohd Yusof FCJ said: [36] As the circumstances are such as to arouse suspicion, it is incumbent on the part of the appellant to make the necessary inquiries to satisfy himself as to the genuineness of the transaction. There was concurrent findings by the learned JC and the Court of Appeal that the only inference that can be deduced from the suspicious circumstances which was not queried by the appellant, is that the appellant knew what he was carrying in the metal cylinders were drugs. The failure to make inquiries from Solomon as to why the need to personally sent the items via Malaysia en route to Thailand, the appellant is deemed to know and that the appellant was guilty of wilful blindness. The appellant had all the opportunity to enquire and to check the bag, but did not do so as he was shutting his eyes to the obvious (see Hoh Bon Tong v. PP [2010] 5 CLJ 240). In the course of the law he is taken to know."

At the close of the defence case, it remains a question of fact whether the accused has discharged evidential burden. required to disprove the presumption. See the case of PP v Tan Tatt Eek & Other Appeals [2005] 1 CLJ 713 (FC).

After considering the accused's testimony and the surrounding evidence, the court finds that the accused failed to discharge his evidential burden. Consequently, he failed to rebut the presumption under s37(d) of DDA on a balance of probabilities.

After evaluating the evidence and testimony of the accused, the court finds that the accused has failed to raise a reasonable doubt on the prosecution's case. Conversely the prosecution has proven their case beyond reasonable doubt. I convict the accused on the charge of trafficking under 39B(1)(a) of DDA.

After hearing submission from both the accused and prosecution, I sentenced the accused to life imprisonment from the date of arrest and 12 strokes of whipping. Dated: 26th June 2026 Counsel:- For the Prosecution: Tuan Umar Faiz bin Abdul Kohar Timbalan Pendakwa Raya Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato' Ja'afar Muhammad, Kota Iskandar, Nusajaya Johor Darul Ta'zim. For the Accused: Kit & Associates (Kuala Lumpur) Suite 195-1 Sri Wangsaria, Sri Wangsaria Condominium, Jalan Ara, Bangsar, 59100, Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur.