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1. Public Prosecutor v Chandru a/l Muniandy

[2018] MLJU 2142
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Alison Chan May Kam
 PUBLIC PROSECUTOR v CHANDRU A/L MUNIANDY
CaseAnalysis
| [2018] MLJU 2142

Public Prosecutor v Chandru a/l Muniandy

[2018] MLJU 2142
Malayan Law Journal Unreported

HIGH COURT (SHAH ALAM)

HAYATUL AKMAL ABDUL AZIZ, JC
CRIMINAL TRIAL NO: 45A-14-12/2014 dan 45-01-05/2016
15 August 2018

Nor Hamizah binti Ghazali and was later taken over by Maziyah binti Mansor (Deputy Public Prosecutor) for the
Prosecution.
Rajasegaran a/l Ramasamy (Segaran & Assoc) for the accused at the prosecution stage.
Charan Singh (Jagdave Singh with him) (Nurul & Charan) for the accused at the defence stage.

Hayatul Akmal Abdul Aziz JC:

JUDGMENT

[1]The prosecution laid a charge against the accused person, Chandru a/l Muniandy (“the accused”) for the offence
of trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952 (‘the DDA”) and three (3) other charges for
the offence of possession under section 12 (2) of the DDA.

[2]The said charges read as follows:

First Charge

“Bahawa kamu pada 12 Mei 2014 jam lebih kurang 11.00 pagi di rumah no. 15, Lorong Jaya 10, Taman Aor Jaya, Taiping
di dalam Daerah Larut Matang, di dalam Negeri Perak Darul Ridzuan telah mengedar dadah berbahaya iaitu sejumlah
berat 17.88 gram (14.58 gram heroin dan 3.30 gram Monoacetylmorphines) dan dengan itu kamu telah melakukan satu
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 12 Mei 2014 jam lebih kurang 11.00 pagi di rumah no. 15, Lorong Jaya 10, Taman Aor Jaya, Taiping
di dalam Daerah Larut Matang, di dalam Negeri Perak Darul Ridzuan telah memiliki dadah berbahaya iaitu sejumlah berat
0.33gram Monoacetylmorphines dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 12(2) Akta
Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 12(3) Akta yang sama”.

Third Charge

“Bahawa kamu pada 12 Mei 2014 jam lebih kurang 11.00 pagi di rumah no. 15, Lorong Jaya 10, Taman Aor Jaya, Taiping
di dalam Daerah Larut Matang, di dalam Negeri Perak Darul Ridzuan telah memiliki dadah berbahaya iaitu sejumlah berat
1.13gram Heroin dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12 (2) Akta Dadah Berbahaya
1952 yang boleh dihukum di bawah seksyen 12(3) Akta yang sama”.

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Fourth Charge

“Bahawa kamu pada 12 Mei 2014 jam lebih kurang 11.00 pagi di rumah no. 15, Lorong Jaya 10, Taman Aor Jaya, Taiping
di dalam Daerah Larut Matang, di dalam Negeri Perak Darul Ridzuan memiliki dadah berbahaya iaitu 1.32gram
Methamphetamine dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya
1952 yang boleh dihukum di bawah seksyen 12(3) Akta yang sama”.

[3]The accused claimed trial to all charges. The charges were tried together in a joint trial which commenced on
24th May 2016 with eight (8) prosecution witnesses called throughout the trial to prove the said charges. At the end
of the prosecution case, on maximum evaluation, I found that the prosecution had succeeded in establishing a
prima facie case and on 28th February 2017 the accused was called to enter his defence on all charges where
continued hearing was fixed on 29th May 2017.

[4]However, on 29th May 2017, the court was informed that the accused had appointed a new counsel to represent
him where the said new learned counsel applied for another date to enable them to get further instructions from the
accused while the lead counsel was also engaged at the Court of Appeal on that same day. On the next hearing
date on 9th August 2017, the learned counsel applied to recall SP4, SP6 and SP7 under section 425 Criminal
Procedure Code (“CPC”). After hearing submissions from the learned counsel and rebuttal submission from the
learned DPP, I allowed the application to recall the said witnesses. On 7th December 2017, the accused presented
his case and had called two (2) witnesses, which included his wife. At the end of the trial on 8th June 2017, on
maximum evaluation of the evidence I had before me, I found the defence had failed to raise reasonable doubt in
the prosecution case and consequently I find the prosecution had succeeded in proving their case beyond
reasonable doubt. In the circumstances, I found the accused guilty and convicted him on all charges so preferred
against him.

[5]Before sentencing and on my invitation, the learned counsel submitted that the court has the discretion and
option to sentence the accused for life instead of the death penalty as provided for under the new amendment to
DDA, i.e. section 39B(2A). After hearing submissions from both the learned counsel and the learned DPP, I
sentenced the accused person as follows:
(i) First Charge: The accused was sentenced to life imprisonment commencing from the date of arrest 12th
May 2014 and fifteen (15) strokes of rotan.
(ii) Second Charge: The accused was sentenced to forty-nine (49) months imprisonment commencing from
the date of arrest 12th May 2014.
(iii) Third Charge: The accused was sentenced to fifty (50) months imprisonment commencing from the date of
arrest 12th May 2014.
(iv) Fourth Charge: The accused was sentenced to fifty-two (52) months imprisonment commencing from the
date of arrest 12th May 2014.

I further ordered that all imprisonment term to run concurrently. Dissatisfied with the above conviction and sentence,
both the accused and the PP filled appeals against the said decisions. My reasons are as follows:

THE PROSECUTION’S CASE

[6]On 12th May 2014 at about 10.15 am at IPD Taiping, ASP G/16377 Sahedi bin Din (SP4) had formed a team
comprising ten police personnel’s of various ranks for a briefing regarding drugs trafficking activity at house No.15
Lorong Jaya 10, Taman Aor Jaya, Simpang, Taiping (“the said house”). After the briefing, SP4 then divided the said
team into three (3) groups. The first group consisting of SP4, D/Kop 106811 Chandravathana and D/Kop 14405
Ismail will enter the said house through the front door. The second group consisting of DSM 10993 Goh Kong Hua,
D/Kop 100426 Razalee and D/Kop 144790 Mohd Hafiz will guard the back of the said house while the third group
consisting of D/Kop 140962 Khairul Nizam, D/L/Kop 162797 Fizri, L/Kop 164974 Roshaidi and L/Kop 177135
Farihan will stand guard at the front of the said house.

[7]Before raiding the said house, SP4 had first instructed a scouting team (pasukan peninjau) headed by Kop
144005 Ismail bin Ahmad (SP6) and Kop (S) Shamsul to scout and observe the area surrounding the said house.

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They went to the location on a motorcycle (Kris Modenas) bearing registration number AFG 4157 and a Yamaha
Lagenda with registration number AGA 1523. After observing the location for 5-6 minutes, at about 10.45am SP6
informed SP4 that he saw some movement (kelibat) in the said house. At about 11am, SP4 and his raiding team
went to the said house in a motor-van with registration number WMH 7956 consisting of SP6 and two (2) others
who raided the said house by entering through the front door that was not locked. There they saw an Indian woman
(later identified as Tamil Selvi a/p Krishnan, wife of the accused) in the main living room where Kop
Chandravathana did a body search on the Indian woman and found nothing incriminating on her person.

[8]SP4 then heard running water in the toilet downstairs with the door locked. When he knocked on the door an
Indian man (later identified as the accused) came out and SP4 did a body search on the Indian man but found
nothing incriminating on his person. Upon inspection of the toilet and in the presence of the accused and SP6, SP4
searched the said toilet and found a packet of Dunhill (exhibit P15A). Inside this Dunhill packet, SP4 found nine (9)
packets of translucent plastic that contained substances suspected to be methamphetamine (exhibit P14D). On
further investigation, SP4 then brought the accused to the main hall where the accused’s wife was still there. In the
main hall, on the floor under the TV cabinet, SP4 found a packet of Nestle Milo (exhibit P15B) that contained found
five (5) packets of translucent plastic that contained substances suspected to be heroin (exhibit P13B). In the
presence of SP6, the accused and his wife, SP4 then proceeded and investigated the storeroom under the stairs
and found a zipped red bag (exhibit 15C) that contained a black plastic bag. In the black plastic bag, SP4 found 345
packets of translucent plastic that contained substances suspected to be heroin (exhibit P12B). SP4 had also found
empty plastic packets and a sealer. On further investigation, SP4 found and confiscated a framed wedding
photograph (exhibit P18) found on the stairs, some of the accused’s and his wife’s clothing, rental agreement of the
said house (exhibit P20), rental receipts (exhibit P21), set of keys (exhibit P35) and other important documents
belonging to the accused. According to SP4, the accused pleaded with him to release his wife and admitted the
items seized as his. The search list was marked as P27 (A and B).

[9]SP6 who was with SP4 during the said raid and arrest, corroborated the evidence of SP4. The accused and his
wife were arrested by SP4 and together with the seized items, they were brought back to the Narcotic Investigation
Department, IPK Perak where SP4 then lodged a police report (exhibit P26). The accused, his wife and the seized
items (exhibit 15A-exhibit P29) were later handed over to the Investigating Officer (“IO”), Insp G 18830, Zulkifi bin
Ariffin (SP7) and akuan serah menyerah barang kes (exhibit P28).

[10]The evidence of SP4 and SP6 were corroborated by SP7. From SP7’s investigation, the said house was rented
by the wife of the accused named Tamil Selvi a/p Krishnan from Ms Poon Su Ling (SP2) for RM700.00 per month.
Rental agreement dated 28th February 2014 (commencing date 1st March 2014) was tendered and marked as
P20. SP7 went to the said house to investigate and has instructed Insp G/18774 Azrul Hadi bin Mokhtar (SP3) to
take photographs of the said house where the place of offence took place (tempat kejadian). And on 17th May 2014
SP7 took out the all exhibits and instructed SP3 to take photographs of exhibits. All photographs were tendered as
follows:
(i) P19(1-21) - photo of the place of the offence (tempat kejadian);
(ii) P21(1) - photo/mug shot of Tamil Selvi;
(iii) P21(1) - photo/mug shot of the accused;
(iv) P23 (1-20) - exhibits seized including the impugned drugs; and
(v) P24 (1-5) - photo of fittings (acu pakai) of the accused and Tamil Selvi.

[11]The suspected drugs were later sent to the government chemist SP5, who after having examined and analysed
the same (chemist report marked as exhibit P33) had found the impugned substances to be:
i. 17.88 grammes (14.58 grammes heroin and 3.30 grammes Monoacetylmorphines);
ii. 0.33 grammes of Monoacetylmorphines;
iii. 1.13 grammes of Heroin; and
iv. 1.32 grammes of Methamphetamine

Those aforesaid drugs are scheduled as dangerous drugs listed under the DDA. The defence did not dispute the
procedure and findings of SP5.

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THE LAW

[12]It is trite that pursuant to section 180 of the CPC that once the prosecution had concluded their case, the legal
burden rests with the court to determine whether in all the circumstances of the prosecution case presented to the
court, a prima facie case has successfully been made out against the accused. In this instance a prima facie case is
made out where the prosecution has adduced credible evidence proving each ingredient of the offence, which if
unrebutted or unexplained would warrant a conviction. If the court finds that the prosecution has not made out a
prima facie case against the accused, the court shall record an order of acquittal. If the court finds that a prima facie
case has been made out against the accused on the offence charged the court shall call upon the accused to enter
his defence. In the premise it is also trite and incumbent upon the court before making out such legal determination
to carry out a maximum evaluation on the evidence and credibility of the witnesses at the close of the case for the
prosecution (Balachandaran v. PP [2005] 1 CLJ 85; Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734;; [2003] 2 MLJ
65 and PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457).

[13]Maximum evaluation denotes an assessment process for the essential purpose of analysing the credibility and
reliability as well as trustworthiness of the evidence of the prosecution. Credible evidence is evidence which had
been filtered and which had gone through the process of evaluation and any evidence which is not safe to be acted
upon should be rejected (see PP v. Ong Cheng Heong [1998] 4 CLJ 209). Thus, what is required by a trial court is
to test the evidence of a witness from all angles as well as its reliability and credibility by considering the entire
evidence placed before the court. The evidence must not be accepted at face value but must be tested and
evaluated before reliance can be placed on each piece of evidence adduced. Further, the trial court has the duty to
consider the evidence, which favours the defence. This requires a consideration of the existence of any reasonable
doubt in the case for the prosecution and if there is any such doubt, there can be no prima facie case
(Balachandran v. PP (supra)). The above principle of law on maximum evaluation should be read together with
the principle relating to judicial appreciation of evidence which is set out in the following words of Gopal Sri Ram
JCA in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19;; [2003] 2 MLJ 97. A trier of fact, who makes
findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’s
evidence, runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision
is one that arises in a civil or criminal case, the approach to judicial appreciation of evidence is the same.

THE COURT’S FINDINGS AT THE PROSECUTION STAGE

[14]The essential ingredients of the charge against the accused that must be established by the prosecution at the
close of the prosecution’s case are as follows:
(i) the drugs are ‘dangerous drugs’ as defined in the Schedule to the Dangerous Drugs Act 1952;
(ii) the accused had knowledge of the said drugs;
(iii) the said drugs were in the possession (custody and control) of the accused; and
(iv) the accused was ‘trafficking’ the said drugs (presumption under section 37(da) of DDA 1952.

[15]In the present case, on a maximum evaluation of the evidence adduced by the prosecution, I found that there
was nothing incredible in the evidence so adduced for it not to be believed. SP5 who is the government chemist,
after having examined and analysed the same submitted the Chemist Report (exhibit P33) where SP5 had found
the impugned substances to be:
i. 17.88grammes (14.58grammes heroin and 3.30grammes Monoacetylmorphines);
ii. 0.33grammes of Monoacetylmorphines
vi. 1.13grammes of Heroin
vii. 1.32grammes of Methamphetamine

The aforesaid drugs are scheduled dangerous drugs as listed under the DDA. It is to be noted that the defence did
not dispute the procedure and findings of SP5.

[16]There was no reason to doubt the evidence of SP4 and SP6, the police personnels’ involved in the said raid at
the said house on 12th May 2014 and SP7 who is the Investigating Officer. As stated in the case of PP v Mohamed
Ali [1962] 28 MLJ 257:

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“When a Police witness says something that is not inherently improbable his evidence must in the first instance be
accepted. If he says he saw a cow jumping over the moon his evidence is, of course, not to be accepted, but if he says he
saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of thing we all see every day of our lives)
there is not the slightest justification for refusing to believe him. Of course, if his evidence is contradicted by other evidence
or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be
accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence
of any witness, whether a Police witness or not, who gives evidence on affirmation, should normally be accepted.”

[17]The evidence of SP4, SP6 and SP7 corroborate each other and the combination of their evidence in entirety
had proven that the accused had the custody and control of the said drugs. The said house was occupied by the
accused together with his wife who had rented it (for the accused) from SP2. According to SP4, the accused looked
shock (terkejut), pale (pucat) and anxious (cemas) when SP4 introduce himself as a policeman. The fact that the
accused appeared as such when SP4 introduced himself clearly demonstrated guilty knowledge on the part of the
accused as provided for under section 8 of Evidence Act. The Federal Court in Parlan Bin Dadeh [2008] 6 MLJ 19
said that proof of knowledge is very often a matter of inference which varies from case to case. It would be sufficient
for the prosecution to prove facts from which it could properly be inferred that the accused had the necessary
knowledge. The accused’s expression of shock upon being approached by the police was clearly admissible under
section 8 of the Evidence Act 1950 (‘the Act”) since it has a direct bearing on the fact in issue as the drugs found
were in the toilet when the accused opened the toilet door. The explanation for his reaction must therefore be
offered by the accused himself as required by section 9 of the Act. However, as the accused did not offer any
explanation for his reaction upon being approached by the police, it could be validly used as evidence against him.
In the circumstances, the inference to be drawn from the evidence was that he knew about the impugned drugs in
his possession. I agree with the submission by the learned DPP that there is no legal requirement for the accused
to have exact knowledge of the said drugs in his possession. From the facts of the case, I can safely infer from the
circumstances of the case that the accused knew that he had the prohibited drugs in his possession (see PP v
Abdul Rahman Akif [2007] 4 CLJ 337). In the premise, it is sufficient for the prosecution to make inference that the
accused knew that the said drugs was in his possession without having to prove knowledge of the said drugs
specifically.

[18]This court found that the prosecution had successfully established a prima facie case against the accused. The
evidence adduced had proven that the accused had the possession, custody and control of the impugned drugs as
the accused was caught in his house with the said translucent plastic packets containing the said drugs in the toilet,
under the TV cabinet and in the store room under the stairs. No other persons except for the wife (Tamil Selvi) was
there with him. I find as a fact and as a matter of law, that the prosecution has succeeded in proving that the
accused had actual possession of the impugned drugs independent of the provisions of presumed possession
under s. 37(da) of the DDA 1952.

[19]Based on the celebrated cases of Chan Pean Leon [1956] MLJ 237, Wong Nam Loi v PP [1997] 4 AMR 3603
and PP v Badrulsham Bin Baharom [1988] 2 MLJ 585, I am also satisfied that the accused had the requisite
knowledge of the drugs which were in his custody and control and in his possession. In the case of Chan Pean
Leon (supra) the Court stated that knowledge cannot be proved by direct evidence and it can only be proved by
inference from the surrounding circumstances. Likewise, in the case of Wong Nam Loi v PP (supra), His Lordship
Shaik Daud JCA stated:

“to constitute possession, there must be knowledge. Knowledge cannot be adduced by direct or tangible evidence but only
by inference from the surrounding circumstances”

[20]The defence advocated an issue that the impugned drugs were not found with the accused. It was further
contended that the place where the drugs were found was rented by Tamil Selvi and she has the spare keys.
According to SP2 her husband Khoo Wong Wei has his own spare keys too. The defence submitted that since
Tamil Selvi and the landlord’s (SP2) husband has their spare keys and the husband did enter the said house (once
before) to repair the plumbing, therefore there is no exclusivity as the said house is accessible by Tamil Selvi and
SP’s 2 husband.

[21]I am of the considered view that even though the accused was not caught red handed with the drugs on his

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person, there was no evidence to show that there were other persons having free access to the said house. This
court is always reminded that there should not be any confusion as to the term ‘exclusive possession’. In the case
of PP v Denish a/l Madhavan [2009] 2 MLJ 194, the Federal Court explained the term ‘possession’ in drugs
trafficking case and stated:

“[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 possession…’, 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 existence and that the drugs could have been placed in his bags by some other person or persons.

[17] The idea of exclusivity features in the meaning of ‘possession’ in criminal law as one of the elements necessary to
constitute possession. As Taylor J said in Leow Nghee Lim v Reg [1956] MLJ 28:

… It is often said that ‘possession must be exclusive’. This is ambiguous. Possession 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 ‘possession 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] MLJ 237, said that ‘possession’ for the purposes 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 Ed), at p 304), in which the
exclusive element mentioned by Taylor J appears:

A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power
to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be
presumed to intend to do so in case of 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.”(Emphasis added)”.

[22]The defence in this case asserted and aimed to show the probability of access by others as a cause to negative
exclusive possession: it was to assert that the drugs found in the toilet, under the TV cabinet at the living area and
in the store room could have been concealed or planted there by these other persons. But bare assertions or mere
suggestions could not be said to be evidence that raises reasonable doubts. There was no reason for this court to
disbelieve SP4 when he said that the accused pleaded with him to release Tamil Selvi as she had nothing to do
with the impugned drugs found and it were all his. The fact remained that the suggestions put to the prosecution
witnesses about other persons having access to the said house remained that, merely suggestions. They were not
evidence. In the case of Ali Hosseinzadeh Bashir v Public Prosecutor [2015] 1 CLJ 918 the Court of Appeal stated:

“[23] It must be understood that what counsel puts or suggests to a witness in cross-examination is not evidence. They are
merely suggestions and to give notice to the prosecution that the defence has a different version of the events. They prove
nothing and will remain nothing unless confirmed by the witness or by the party on whose behalf the suggestions are made
when his turn comes to give evidence.”

In the case of Lim Son Heng v Public Prosecutor [2014] 6 MLJ 109 the Court of Appeal explained:

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“[14] With respect, it is incorrect to argue that just because someone else has access to the house, the person occupying
that house would lose exclusive possession of all the things inside the house. R v Woodman [1974] 2 All ER 955 is a case
concerning theft of scrap metal from a factory site, where the owners had put up fencing around the site to keep out
trespassers. The owners themselves were unaware that remnants of scrap metal still remained in the factory. Lord Widgery
CJ in delivering the judgment of the Court of Criminal Appeal held that:

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] On the facts of the present case, there can be no doubt that the appellant had possession of all the things inside the
premises to the exclusion of other people. This is evidenced from the fact that he made sure he locked the grille door with a
padlock before he left the premises, the keys to the premises were found with him. In such a situation, the appellant ‘has
the power to exclude other persons from the enjoyment of the property’ as explained by Taylor J in Leow Nghee Lim.”

[23]In this case, there was no evidence to show that there were other people staying with the accused in the said
house except Tamil Selvi, but it is to be noted that Tamil Selvi admitted in P36 that the accused was the one who
stayed in the said house since she lives in Sungai Petani and undergoing treatment at the hospital in Sungai
Petani. Personal belongings of the accused were found in the said house. I find the accused was the only person
who had the power to deal with the drugs and to exclude other persons from the enjoyment of the said ‘property’.

[24]Regarding (P36) the statement given by Tamil Selvi. The prosecution submitted that since Tamil Selvi was not
available as the prosecution witness, the DPP then applied to tender her caution statement through the recording
officer Insp I/20347 Siti Rabiah binti Kassim (SP8) and marked as P36 (which I will elaborate further). SP8
explained that the caution statement was recorded under section 37B DDA and not section 37A(1)(b) as stated in
P36, which she explained as an unintentional typo error. SP7 stated that during investigation, Tamil Selvi informed
him that she didn’t know about the impugned drugs found in the said house since she had just arrived from Sungai
Petani and after her statement was recorded, Tamil Selvi was not charged and released after signing a bond to
appear as a prosecution witness (exhibit P40). She was to be called as a prosecution witness but when SP7
endeavoured to serve the subpoena on Tamil Selvi, SP7 was unable to do so despite several attempts made to
look for her at her parent’s house in Sungai Petani and it was informed that Tamil Selvi had not been to Sungai
Petani. Further search and inquiries was done via Immigration Department, ASTRO, Suruhanjaya Pilihanraya
(SPR), Jabatan Pendaftaran Negara (JPN) and her address in Kuala Lumpur that was given to SP7 by Tamil Selvi,
but to no avail. According to SP8, statement from Tamil Selvi a/p Krishnan (the wife of the accused) was recorded
under section 37B DDA, admission of statement in evidence. The statement was recorded after caution (written in
capital letters in P36) was read out to her and Tamil Selvi gave her statement freely with no promise, threat or
coercion from SP8. According to SP8, in P36, Tamil Selvi admitted that the said house was actually rented by the
accused but the accused used her name in the rental agreement. The accused stayed alone in the said house while
she lives in Sungai Petani since she is undergoing treatment at the hospital in Sungai Petani. During cross
examination it was put to SP8 that the name and IC number of Tamil Selvi was not stated under the column
“tandatangan suspek”. However on re-examination, SP8 explained that it was not necessary for Tamil Selvi to write
her name and IC number repeatedly since it was Tamil Selvi that she interviewed and the said information was
already stated on the first page of the statement. I am of the considered view that since SP7 had made several
attempts to serve the subpoena on Tamil Selvi but to no avail, it denotes genuine and reasonable efforts made to
attempt service of the subpoena on her even though in vain. The learned counsel had objected and submitted that
it was not served on them and it amounts to suppression of evidence and the steps taken by the prosecution was
not sufficient to invoke section 32 Evidence Act. The DPP then served the said caution statement on the learned
counsel and I had the hearing stood down to enable the learned counsel to peruse the said caution statement.
When the proceeding resumed, the learned counsel informed me that he has no further submission. I find P36 was
given voluntarily by Tamil Selvi without any inducement. P36 didn’t state that the impugned drugs belongs to the
accused and I find sufficient efforts were taken to trace Tamil Selvi despite the fact that she has agreed to enter a
bond (exhibit P40 ) to be present as the prosecution witness. Based on the above findings, I am of the considered
view that the statement given by Tamil Selvi can be admitted and marked as exhibit P36. It is to be noted at this

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juncture that even without relying on P36 to prove its case, I am also of the considered view that the prosecution
had proven its case on maximum evaluation of evidence available before this court.

[25]It was further argued by the defence that there are various failures by the prosecution to present the following
items which is fatal to the prosecution case and entitled the defence to invoke presumption under section 114(g)
Evidence Act against the prosecution, as follows:
(i) the failure by the prosecution to produce SP2’s husband;
(ii) failure to tender the title of the said house to show that SP2 is the registered owner of the said house;
(iii) failure to tender the station diary despite requested by the defence to determine the police personnel that
was involved in the raid of the said house are the same police personnel that were stated in the police
report by SP4 (exhibit P26) and search list (exhibit P27 (A & B);
(iv) failure by the prosecution to mention a bunch of house keys seized from the said house in P27 (A&B) but
was stated in borang serah menyerah barang kes (exhibit P28);
(v) failure by SP7 to marked in the sketch plan (exhibit P35) the place where the accused and Tamil Selvi was
arrested to determine the distance between the accused and the place where the impugned drugs were
found.

[26]It is noted that SP2’s husband Khoo Yong Wei was not called as a witness, but he was offered to the defence at
the close of the prosecution’s case and the learned counsel informed this court that they reserve the right to call
Khoo Yong Wei. Regarding the house keys, during cross examination by the learned counsel, SP4 (at line 1665)
stated that the keys are not part of the exhibit and it was surrendered to SP7 to enable SP7 to enter the said house
for investigation. Regarding the failure to produce the station diary to determine the police personnel’s involved in
the raid is not fatal since SP4 had stated the police personnel’s that was with him during the raid and arrest at the
place where the offence took place. I find that SP4’s evidence to be straight forward with nothing incredible found in
his evidence. It was after all the quality of the evidence that I should assess and not the quantity. Section 134 of the
Evidence Act 1950 stated that no specific number of witnesses shall in any case be required for the proof of any
fact. In the case of Aziz Muhamad Din v PP [1997] 1 CLJ Supp 523 at page 540, the Court stated, “This section
enshrines the well-recognised maxim that “evidence has to be weighed and not counted”. Regarding the failure to
tender the title of the said house and failure of SP7 to mark the position of the accused and Tamil Selvi in the said
house, I hold it to be insufficient to negate the fact that the accused had possession of the impugned drugs to the
exclusion of others. It is trite law that adverse inference can only be drawn against the prosecution if there is
withholding or suppression of evidence and not merely on account of failure to obtain evidence. Based on my
observation above, I find that there was no suppression of evidence and for the defence to ask the court to invoke
s.114 (g) of the Evidence Act 1950 against the prosecution in such circumstance is wholly unnecessary.

[27]The defence had also raised the issue on the on the translucent plastic packets. SP7 in his evidence stated that
the forensic were unable to uplift the finger print of the accused. It is my finding that the failure of the prosecution to
obtain any finger print on the translucent plastic packets/bag/impugned drugs could not negate the obvious fact that
the said drugs was discovered in the said house with the accused at the material time. There have been numerous
cases where some exhibits were sent for fingerprint analysis by some diligent investigating police officer, but no
positive uplifting of the fingerprint could be obtained due to many reasons. It is my considered view in the
circumstances of the case that the failure of SP7 to uplift the finger print of the accused on the bag/translucent
plastic packets/impugned drugs for the fingerprint analysis is of little significance taken in light of the entire evidence
of the prosecution witnesses.

[28]Based on the facts and evidence adduced, the conduct of the accused coupled with the evidence of him being
in direct possession of the said drugs, were corroborative of the fact that the accused had the required mens rea in
the sense that he knew what was in the said plastic packets that was in his place of abode at the material time. The
learned defence counsel’s argument that the conduct of the accused cannot be said to be evidence of knowledge
could not with respect hold. The fact that the accused had looked shock, was caught red handed and apprehended
while in the said house was sufficient and is corroborative of the fact that he had this knowledge. In the case of PP
v Mardani Hussin [2005] 7 CLJ 495, Abdul Hamid Embong J concluded that where the accused was caught literally
red-handed with the impugned drugs and had looked scared, and that the accused’s expression of shock and fear
when confronted by the police is corroborative of the fact that he had this knowledge.

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[29]In the case of Public Prosecutor v Mansor Md Rashid & Anor [1996] 3 MLJ 560 Chief Justice Chong Siew Fai
(Sabah and Sarawak) had the occasion to say the following:

“Where the identity of a culprit is in question or is required to be proved, fingerprint evidence will be of great significance
and value. In the instant case, however, the charge alleged trafficking in the form of a ‘sale’ and there was evidence
indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence, therefore, assumed little
value or significance.”

[30]There were no cogent reasons to doubt SP4, SP6 and SP7 and the evidence of other prosecution witnesses in
its entirety after having subjected them to the maximum evaluation as enunciated by the Federal Court in
Balachandran v PP [2005] 1 CLJ 85. In the case of Balachandran v PP (supra) the Federal Court stated a prima
facie case is therefore one that is sufficient for the accused to be called upon to answer. I find as a fact and as a
matter of law that the prosecution had succeeded in proving the ingredients of the charge with no break of chain in
the evidence, the element of actual possession with mens rea from evidence adduced through witnesses and
independent of the provisions on presumed possession under section 37(da) of the DDA, 1952. Further, as the
accused was found to be in actual possession of more than 15 grammes of the scheduled dangerous drugs, the
prosecution is perfectly placed to invite this court to invoke the presumption of trafficking against the accused under
section 37(da) of the DDA, 1952. On maximum evaluation I find the prosecution had succeeded in establishing a
prima facie case against the accused and I therefore called the accused to enter his defence on all charges as
stated above.

APPLICATION BY THE DEFENCE TO RECALL SP4, SP6 AND SP7

[31]Before I proceed with the defence case, the learned counsel (newly appointed by the accused) made an
application to recall SP4, SP6 and SP7 by invoking section 425 Criminal Procedure Code (“CPC”) where the main
point of contention was the threshold issue and the requirement for the just determination of the case. The learned
counsel submitted the accused had engaged him to take conduct of this case and when he perused the documents
there were certain issues which needed further cross. He submitted that it was not based on fault of the previous
counsel but advocated that the two (2) counsels held two different views on the issue and it is pertinent regardless
of the view that it must be applied for the just decision of the case. The court takes cognisance that the accused
could possibly faces the death penalty in the event of a conviction and in the circumstances the accused must be
accorded every opportunity allowed by law to present his defence. In any event I find no prejudice in the
circumstances on the prosecution case thus far presented. Briefly the areas that require further examination of SP4
where SP4 had lodged a police report and in that report, he mentioned about the seizure of drugs, photo frame,
clothes, sealer and plastic packets which were tendered in court. However, SP4 has also lodged another report for
seizure of other things which was not tendered in court. The learned counsel refers to Taiping Report 3352/14 and it
is submitted that it is important because the court ought to be made aware where the drugs was confiscated or
found in the house and where was it kept (proximity). The motorcycle belongs to Mohamad Azmil Ismail based on
JPJ search and this will show that someone else had access to the house and the duty of the prosecution to
exclude any other person who has access to the said house. The evidence of SP7 is important to determine the list
of seized items and it is not enough for the prosecution to say that it was forfeited. I was alluded to several cases
including Chin Kek Shen v PP [2013] 5 MLJ 827,; [2013] 7 CLJ 435 which stated at what stage a witness can be
recalled. This application was vehemently objected to by the DPP claiming SP4 is not in- charge with the forfeiture
of property (FOP) since it was done by another IO and the DPP has given the relevant document to the accused
before the commencement of this trial. There was no concealment of evidence as alleged by the defence. There
are several provisions empowering a trial court to permit the recalling of witnesses. The main provision under the
CPC is section 425 as applied today, which comprises two limbs, namely the first limb (may) which is discretionary
and the second (shall) which makes it incumbent on the court to allow, inter alia, the recall of any person as in this
case today the recall of SP4, SP6 and SP7 on the grounds that their evidence is essential to the just decision of the
case. I refer to the case of Chin Kek Shen v PP (supra) where Court of Appeal held:

“On the factual matrix of this case it was plainly wrong for the trial judge to arbitrarily disallow the appellant’s application to
recall SP1 without good reasons. It is well settled that a court has a wide discretion to allow a witness to be called or
recalled under s 425 of the Criminal Procedure Code (‘CPC’) before the close of the defence case. Although the power
under s 425 of the CPC is discretionary, it ought to be exercised judiciously, failing which appellate interference was
warranted. In the instant case, the refusal of the trial judge to allow the witness to be recalled and subsequently making

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adverse findings and remarks in respect of the defence case, compromised the integrity of the decision-making process
and attracted the jurisprudence relating to mistrial as well as miscarriage of justice, which required appellate intervention to
rule that the conviction was unsafe (see paras 8-9)”.

After hearing submissions by the learned counsel and the learned DPP and based on the reasons given, I decided
to allow the application by the learned counsel to recall SP4, SP6 and SP7 for the just decision of this case.

THE DEFENCE

[32]The accused was given the three (3) options of giving evidence and he elected to give his evidence on oath and
had also called two (2) supporting witnesses, i.e.:
(i) SD2, Insp I/19287 Mohd Zaki bin Mohd Radzi;
(ii) SD3, Tamil Selvi a/p Krishnan (the accused’s wife);

[33]The accused and his wife (SD3) had on 1st March 2014, rented the said house from a Chinese man with a
monthly rental of RM700.00 per month where the tenancy agreement was under his wife’s name and so too the
receipts of rental payments. The accused worked as a lorry assistant (kelindan lori) together with a person named
Bob whose name is Mohamad Azmil and started working in March 2014. The accused admitted that he stayed
alone at the said house and his wife Tamil Selvi did not stay in the said house since she was undergoing treatment
at Hospital Abdul Halim in Sungai Petani, Kedah since 2013. Sometimes Bob will come to the said house to
accompany him especially at night. On 11th May 2014 around 4 pm the accused drove to Sungai Petani using his
wife’s car a Proton Pesona with registration number PJU 5148 to celebrate Mother’s day and had asked his friend
to stay at the said house and he gave his friend a set of his house keys before he left for Sungai Petani. His friend
was using a motorcycle bearing registration number PJS 8007. On 12th May 2014 the accused and his wife went
back home and when they reached the said house around 8.30 am, he saw Bob’s motorcycle outside the said
house. He called out Bob’s name a few times but there was no answer. The accused then entered the said house
using his spare keys and Tamil Selvi went to the living hall to lie down. The accused then proceeded to go upstairs
but did not see Bob. In the first bedroom he saw two (2) pieces of clothing on the bed and he proceeded to call Bob
on the phone where Bob had informed him that he is out with his friend and will be back before 12 pm. The accused
then lie down on the mattress with his wife Tamil Selvi. At about 9.00am, while he was showering in the toilet
downstairs, he heard his wife knocked the toilet door and asked him to open the toilet door. When he opened the
toilet door he saw a few Malay men standing in front of the toilet door and one of them introduced himself as a
policeman and asked him to put on his clothes as he had only used the towel in the toilet to cover himself. He heard
the policeman asked his colleague to take the accused wife to the main hall. The said policeman then entered the
toilet and seized a packet of cigarette. The accused and his wife was then brought upstairs but the police didn’t find
any incriminating items and they were then brought downstairs where the accused saw a few police personnel’s
searching in front of the house. A policemen then open the small door to the rubbish bin (tempat tong sampah) and
took out a red bag. The red bag was then brought into the said house and was given to Mr Sahedi (SP4). The
accused saw Sahedi unzipped the red bag (during this time Sahedi asked his colleague to take Tamil Selvi to her
car) and informed him that there are more than 300 plastic packets in the said bag. Sahedi also seized two (2) set
of clothing’s from the room downstairs and a Nestum packet, the accused saw Sahedi using his hand phone to call
someone. After 12-20 minutes, the accused saw Insp Zulkifli (SP7) and Insp Azrul (SP3) came with a camera. The
accused saw SP4, SP7 and SP3 had some discussion and he later saw Azrul took some photographs of the said
house and its surroundings. Then Sahedi placed the accused together with his wife in the Pesona and he saw
Sahedi locked his house. He also saw Sahedi holding his wife’s red handbag and asked his wife whether the
contents of the handbag is in order to which his wife replied “semua barang ada tuan”. The accused and his wife
were then brought to IPD Taiping where he saw Bob’s motorcycle at the IPD.

[34]The evidence of the accused person is mostly corroborated by his wife Tamil Selvi (SD3). SD2 in his evidence
admitted that he had seized a motorcycle Yamaha LC as stated in the “borang serah menyerah” and upon further
investigation he found it belongs to a Malay man named Azmil but he was unable to locate the said Azmil. Since the
said motorcycle had an outstanding loan, it was claimed by a motorcycle company. Azmil failed to make a claim for
this motorcycle despite SD2 having served the notice of seizure to his family in Seberang Jaya. SD2 also confirmed
that he did see a red handbag with Insp Sahedi when he received the said motorcycle from him. During cross
examination by the learned DPP, SD2 admitted that he didn’t make any markings on the said bag because that bag
was not given to him and not stated in the borang serah menyerah. He was only able to identify the said red bag
through its colour and admitted that the said bag was never shown for him to identify. Before this court, there are

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clearly two versions of the story. It is the legal duty of this court to determine which is to be believed and come to a
conclusion at this juncture whether the story adduced by the defence had successfully raised reasonable doubt to
negate the prosecution’s case.

THE LAW

[35]Before going into the detail of the defence put forward by the accused, at this stage I must reiterate that the
burden to prove the guilt of the accused beyond reasonable doubt is always with the prosecution. The burden never
shift to the accused. However, since in this case the presumption of trafficking operated against the accused, the
evidential burden placed on the accused can be rebutted by him adducing evidence to discharge that burden on
balance of probabilities as enumerated in the case of PP v Yuvaraj [1969] 2 MLJ 89 PC and Mohd Radzi v PP
[2006] 1 CLJ 457. That evidential burden on the part of the accused relates only to the presumption of trafficking.
The accused needed only to raise a reasonable doubt on the rest of the prosecution case for him to earn an
acquittal. In this respect I must evaluate the defence in light of the prima facie evidence already proven at the
prosecution stage. To earn an acquittal, it is incumbent on the accused person to raise reasonable doubt as to the
truth of the prosecution’s case.

[36]Section 182A CPC set out the procedure and duty of a trial court at the conclusion of the defence case that at
the conclusion of the trial, the court shall consider all the evidence adduced before it and shall decide whether the
prosecution had successfully proven its case beyond reasonable doubt. If the court finds that the prosecution has
proved its case beyond reasonable doubt, the court shall find the accused guilty and he may be convicted on it. If
the court finds that the prosecution has not proven its case beyond reasonable doubt, the court shall record an
order of acquittal.

[37]In Md Zainudin bin Raujan v. Public Prosecutor [2013] 4 CLJ 21, the Federal Court observed as follows:

“At the conclusion of the trial, s. 182A of the Criminal Procedure Code imposes a duty on the trial court to consider all the
evidence adduced before it and to decide whether the prosecution has proved its case beyond reasonable doubt. The
defence of the accused must be considered in the totality of the evidence adduced by the prosecution, as well as in the light
of the well - established principles enunciated in Mat v. Public Prosecutor [1963] 1 LNS 82;; [1963] 1 MLJ 263 with regard
to the approach to be taken in evaluating the evidence of the defence”

[38]Section 182A states that “all” evidence must be considered by the court. It is to be noted that emphasis has
been laid on the phrase “all”. In Prasit

Punyang v. Public Prosecutor [2014] 7 CLJ 392;; [2014] 4 MLJ 282, it was held as follows:

“In accordance with the provisions of s. 182A(1) of the Criminal Procedure Code, it is the bounden duty of the learned JC,
at the conclusion of the trial, to consider all the evidence adduced before him and shall decide whether the prosecution has
proved its case beyond reasonable doubt. The legislature has advisedly used the term all the evidence. The emphasis must
be on the word all.”

[39]What amounts to a “reasonable doubt” itself is not defined in section 182A of the Criminal Procedure Code.
However, there are plethora of case laws as to its meaning. In Public Prosecutor v. Saimin [1971] MLJ 16, it was
held by Sharma J that:

“It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to
some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the
evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral
certainty of the truth of the charge. “

[40]In the case of Public Prosecutor v. Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180, Abdoolcader J,
explained the phrase reasonable doubt as follows:

“It is not necessary for the defence to prove anything and all that is necessary for the accused to do is to give an

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explanation that is reasonable and throws a reasonable doubt on the case made out for the prosecution. It cannot be a
fanciful or whimsical or imaginary doubt, and in considering the question as to whether a reasonable doubt has been
raised, the evidence adduced by and the case for the defence must be viewed in at least some amount of light, not
necessarily bright sunlight, but certainly not against the dark shadows of the night. “

[41]It can be summarised therefore that the phrase “reasonable doubt” excludes fanciful or imaginary doubts or
stories that are so obviously conjured up so as not to be in accord with the ordinary course of nature or human
conduct when viewed and appraised from the test of reasonableness. The foregoing of course, are only guidelines
and the court must apply these according to all the circumstances of the case at hand.

[42]The approach in Mat v. Public Prosecutor was judicially endorsed by the Federal Court as being the correct
one to adopt when evaluating the evidence of the defence case in Public Prosecutor v. Mohd Radzi Bin Abu Bakar
[2006] 1 CLJ 457;; [2005] 6 MLJ 393, when it held:

“For the guidance of the courts below, we summarise as follows the steps that should be taken by a trial court at the close
of the prosecution’s case:
(i) the close of the prosecution’s case, subject the evidence led by the prosecution in its totality to a maximum
evaluation. Carefully scrutinise the credibility of each of the prosecution’s witnesses. Take into account all
reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences,
then draw the inference that is most favourable to the accused;
(ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I
prepared to convict him on the evidence now before me? If the answer to that question is ‘Yes’, then a prima facie
case has been made out and the defence should be called. If the answer is ‘No’ then, a prima facie case has not
been made out and the accused should be acquitted;
(iii) after the defence is called, the accused elects to remain silent, then convict;

(iv) after defence is called, the accused elects to give evidence, then go through the steps set out in Mat v. Public
Prosecutor [1963] 1 LNS 82;; [1963] MLJ 263.”

[43]Guided by the aforementioned decisions, if the court does not accept or believe the defence raised by the
accused it must not convict but must proceed a stage further by considering whether the defence evidence has
raised in the mind of the court a reasonable doubt as to the guilt of the accused. If it does, then the accused is
nevertheless entitled to an acquittal.

THE COURT’S FINDINGS AT THE DEFENCE STAGE

[44]The prosecution’s version was that the accused was arrested in the said house after the drugs was seized from
several places in the said house. The police entered the said house through the front door. Upon receiving all
seized items including the impugned drugs, SP7 and accompanied by SP4 and SP3 went to the scene for further
investigation.

[45]The accused’s story obviously was to say he was framed by the police which I am of the considered view to be
unreasonable in the circumstances of the case. Nowhere in the evidence of the accused is to be found that he
claimed the police were out to frame him by seizing the plastic bag containing the impugned drugs from the place
for trash bin in front of the said house.

[46]In the circumstances, it is my considered view that anchored on the prosecution evidence in its entirety, the
accused had knowledge of the said drugs that was placed in several places in the said house on the day that he
was arrested. If the accused was innocent, he could have asked and insisted to lodge a police report which can be
done at any stage and even during the proceeding of the trial. The accused had ample opportunity to inform the IO
either on the day he was arrested as well as when his statement was recorded. No plausible material of evidential
value was adduced by the accused that could and would lead to an inference that SP4 or the police was going all
out to frame the accused.

[47]I also find that there are no plausible reasons for SP4 and his team to have any ill-design or mala fide intention

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to frame the accused with the crime he was charged with. The accused attempted to bring in Bob as an issue that
would create the necessary doubt in the prosecution’s case, however it is to be noted that the issue of Bob was
never put forward by the defence when the prosecution witnesses gave evidence. It was only put to the prosecution
witness when this court allowed the recalling of witnesses. SP7 in his evidence during the recalling of witnesses
stated that the accused did not inform him of Bob nor the fact that Bob has access to the said house during the
investigation and neither did SD3 inform SP8 of Bob’s presence in the said house. There were no cogent reasons
for SP7 and SP8 to have ignored the information given by the accused or SD3 if that information mentioned above
was in fact given. This same view is applied to SP4 as well. It is my considered view that the evidence given by SP4
was straight forward and plausible. Nothing inherently incredible was found in his evidence and consequently
therefore, there was no reason for me to disbelieve him. SP4 could not be said to have any ill-intention to frame the
accused which goes to show that this case was not an entrapment nor a frame-up. I find support in cases below
where the Court of Appeal in Hafedz Saifol v PP [2017] 1 LNS 977 had referred to the Federal Court decision in
Teng Howe Seng v. PP [2009] 3 CLJ 733 where it was stated by the Federal Court that all crucial information’s
beneficial to the defence must be disclosed at the earliest possible time to enable a thorough investigation to be
carried out by the police. Any undue delay would entitle the sitting judge to disbelieve the evidence of the accused.

[48]I find the defence forwarded by the accused was one of mere denial, an invention of his own and failed to raise
reasonable doubt on the truth of the prosecution’s case. It was the accused who had the custody and control of the
impugned drugs found in the said house and he had the knowledge that it is dangerous drugs. As such the
presumption under section 37(da) DDA 1952 was applicable and that the accused was trafficking the drug pursuant
to the said Act.

[49]The accused relied entirely on his two (2) witnesses to corroborate his defence and to punch a hole in the
prosecution’s case in the hope that it is sufficient enough to create the necessary doubt. But as can be seen from
the evidence of these two (2) witnesses, such is not the case.

[50]SD3 is the wife of the accused who admitted that even though she was the one who signed the tenancy
agreement with SP2, but in actual fact the accused was the one who rented the said house and he was the one
who pays the rental. SD3 admitted that she didn’t stay in the said house because she lives in Sungai Petani with
her parents as she had to undergo medical treatment at the Hospital in Sungai Petani. SD3 confirmed that Bob
sometimes stayed at the said house but admitted that she has never meet Bob, at this juncture it is to be noted that
the evidence of SD3 regarding Bob and the fact that Bob stayed at the said house the night before the raid is
actually hearsay evidence. SD3 has never meet Bob and neither was Bob paying rental to SD3 or the accused and
neither was there any evidence that SD3 was sub-letting the said house to Bob. In the circumstances of the case, I
could not afford to treat the evidence given by SD3 without suspicion and I find the story of SD3 regarding Bob is
not reliable and this court cannot rely on hearsay evidence.

[51]I find the attempt by the accused in claiming and/or inferring that the said impugned drugs belongs to Bob is not
factually plausible in the circumstances of the case. It beats reason for Bob (who was said to occupy the room
upstairs) to leave behind the said impugned drugs which is of value at the places where it was found by SP4, i.e. in
the toilet downstairs, in the store room downstairs and in the living hall downstairs or in the rubbish bin outside as
claimed by the accused person. I find the evidence of the defence witnesses to be inconsistent and not plausible
when viewed from the prosecution’s evidence in its entirety. In the circumstances I hold the evidence of SP4 who is
supported by SP6 and SP7 to be more credible. There were no evidence that SP4, SP6 and SP7 knew the accused
person before the said raid and arrest. Similarly, there is no reason for them to create stories for the purpose of
framing the accused person with such a serious offence which carries death penalty if the accused is found guilty.

[52]I find that the defence witnesses were conveniently tailored and very well moulded to tally with the evidence of
the accused and the fact Bob’s motorcycle that was found in front of the said house. I agree with the submission of
the learned DPP that the accused defence was basically one of mere denial with no evidential materials was
adduced sufficient enough to raise reasonable doubt on the prosecution’s case.

[53]All in all, I find the defence witnesses were not credible witnesses. It was glaring before this court that their
evidence was concocted to help the accused and to avoid the accused from being connected with the impugned
drugs. I find their evidence in the circumstances of the case not to be believable. Consequently, I am unable to
accept the version of the accused and neither had his version succeeded in creating a doubt on the prosecution’s
case.

CONCLUSION

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[54]For the first charge, the accused did not put up any defence that the said drugs were meant for his
consumption. The accused’s defence was a complete denial and such defence had fallen short of rebutting the
presumption of trafficking that operated against the accused on balance of probabilities and as such, no reasonable
doubt was raised as to the accused’s guilt which the prosecution had established beyond reasonable doubt. Since I
am satisfied that the accused had failed to raise a reasonable doubt on the truth of the prosecution’s case as to his
possession and knowledge, the presumption of trafficking applied against the accused by virtue of the fact that he
was found to be in actual possession of the nett weight amount of 17.88 grammes of scheduled drugs under the
DDA. For the second charge, I also find that the accused had failed to raise reasonable doubt on the truth of the
prosecution’s case as to his possession and knowledge by virtue of the fact that he was found to be in actual
possession of 0.33 grammes of Monoacetylmorphines an offence under section 12(2) DDA and punishable under
section 12(3) DDA. As for the third charge, it is my finding as well that the accused had failed to raise a reasonable
doubt on the truth of the prosecution’s case as to his possession and knowledge by virtue of the fact that he was
found to be in actual possession of 1.13grammes of Heroin an offence under section 12(2) DDA and punishable
under section 12(3) DDA. Similarly, for the fourth charge, I am also satisfied that the accused had failed to raise a
reasonable doubt on the truth of the prosecution’s case as to his possession and knowledge by virtue of the fact
that he was found to be in actual possession of 1.32grammes of Methamphetamine, an offence under section 12(2)
DDA and punishable under section 12(3) DDA.

SENTENCES

[55]Before proceeding with the sentence, I invited the learned counsel and the learned DPP to submit on the recent
amendment to section 39B (2A) DDA (Act A 1558) which came into effect on 15th March 2018 P.U. (B) 127. The
said section reads as follows:

“(2A) In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and
whipping of not less than fifteen strokes, may have regard only to the following circumstances:
(a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was
arrested;

(b) there was no involvement of agent provocateur; or

(c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous
drug; and

(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or
outside Malaysia.

(2B) For the purposes of subsection (2A), “enforcement agency” means—

(a) the Royal Malaysia Police;

(b) the National Anti-Drugs Agency;

(c) the Royal Malaysian Customs Department;

(d) the Malaysian Maritime Enforcement Agency; or

(e) any other enforcement agency as may be determined by the Minister.

[56]The learned counsel for the accused submitted that the word “may” in section (2A) gives the court the discretion
to sentence the accused to life imprisonment as the facts of this case is clear that there was no buying and selling
of drugs, the impugned drugs was not found on the body of the accused and the weight of the impugned drugs was
17 gm. He further submitted that paragraph (a) and (b) were meant to be read together whereas para (c) and (d)
the involvement of the convicted is restricted to transporting, carrying, sending or delivering a dangerous drug and
therefore it is reasonable that it has to be read together with paragraph (d). The learned DPP on the other hand
submitted by referring to the Parliament Hansard dated 14th December 2017 where it was stated at page 43 as
follows:

“…Rang Undang-Undang Dadah Berbahaya (Pindaan) 2017 ini mempunyai tiga fasal seperti berikut:

Alison Chan May Kam

 Page 15 of 15
Public Prosecutor v Chandru a/l Muniandy
....

Fasal 1 mengenai tajuk ringkas dan peruntukan mengenai permulaan berkuatkuasanya

Fasal 2 bertujuan untuk meminda seksyen 39B Akta 234 seperti berikut:

(a) Dengan menggantikan subseksyen 2 sedia ada dengan subseksyen 2 yang baru bagi memasukkan hukuman
selain hukuman mati mandatory bagi kesalahan mengedar dadah berbahaya iaitu hukuman penjara seumur
hidup dan sebatan tidak kurang daripada 15 kali; dan
(b) Memasukkan subseksyen 2A dan 2B baharu antara lain bagi menyatakan hal keadaan tertentu yang hanya boleh
diambil kira oleh mahkamah.

Fasal 3 adalah berkaitan peruntukan peralihan…..”

The learned DPP submitted by referring to the said Hansard at page 73 that paragraph (a), (b) and (c) are to be
read disjunctively but it has to be read conjunctively with paragraph (d). The learned DPP further submitted that this
court has to make a finding based on the facts stated above.

[57]For the first charge, it is my considered view that the facts of this case clearly discloses that there was no
evidence of buying and selling of dangerous drug at the time when the person convicted was arrested, there was no
involvement of Agent Provocateur and the impugned drugs were not found on his person (body) and therefore it is
my view that the circumstances of this case meets the criteria for this court to invoke section 39B (2A) DDA. For the
second, third and fourth charges, I find the accused guilty and he is convicted of all charges and after mitigation I
sentenced the accused as follows:
(i) First Charge: The accused was sentenced to life imprisonment commencing from the date of his arrest on
12th May 2014 and fifteen (15) strokes of rotan.
(ii) Second Charge: The accused was sentenced to forty-nine (49) months imprisonment commencing from
the date of arrest 12th May 2014.
(iii) Third Charge: The accused was sentenced to fifty (50) months imprisonment commencing from the date of
arrest 12th May 2014.
(iv) Fourth Charge: The accused was sentenced to fifty-two (52) months imprisonment commencing from the
date of arrest 12th May 2014.

I further ordered that all imprisonment term to run concurrently and the sentences passed are reasonable, just and
fair in the circumstances of the case.

End of Document

Alison Chan May Kam