PENDAKWARAYA 1. EDDI BIN MD KASIM 2. NURUL IMAZATUL NADIA BINTI REJAB

IN THE HIGH COURT OF MALAYA AT GEORGETOWN PENANG CRIMINAL TRIAL NO: PA-45A-8-01/2018 BETWEEN PUBLIC PROSECUTOR V 1. EDDI BIN MD KASIM 2. NURUL IMAZATUL NADIA BINTI REJAB GROUNDS OF JUDGMENT INTRODUCTION [1] The First and Second Accused were charged for 3 offences under the Dangerous Drugs Act 1952 (“DDA’). 2 of the charges are for the offence trafficking in illegal drugs and 1 charge for the offence of posession illegal drugs. [2] The charges (“Charges”) are as follows: First Charge (“Charge 1”) Bahawa kamu bersama-sama pada 21/6/17 jam lebih kurang 0200hrs bertempat di bahagian bawah rumah BJ Court, Jalan Rumbia, 11900, Bayan Lepas Pulau Pinang di dalam daerah Timur Laut, di dalam negeri Pulau Pinang telah mengedar dadah berbahaya iaitu. “heroin dan monoacetylmorphine” seberat 44.1 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama dan dibaca bersama di bawah seksyen 34 Kanun Keseksaan. Second Charge (“Charge 2”) Bahawa kamu bersama-sama pada 21/6/17 jam lebih kurang 0200hrs bertempat di alamat rumah 3B-29-17, BJ Court, Jalan Rumbia, 11900, Bayan Lepas Pulau Pinang di dalam daerah Timur Laut, di dalam negeri Pulau Pinang telah mengedar dadah berbahaya iaitu. “heroin dan monoacetylmorphine” seberat 34.4 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama dan dibaca bersama di bawah seksyen 34 Kanun Keseksaan. Third Charge (“Charge 3”) Bahawa kamu bersama-sama pada 21/6/17 jam lebih kurang 0200hrs bertempat di alamat rumah 3B-29-17, BJ Court, Jalan Rumbia, 11900, Bayan Lepas Pulau Pinang di dalam daerah Timur Laut, di dalam negeri Pulau Pinang telah ada dalam milikan kamu dadah berbahaya iaitu “methamphetamine” seberat 40.75 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A (2) Akta yang sama dan dibaca bersama di bawah seksyen 34 Kanun Keseksaan. PROSECUTION’S CASE [3] On 21.6.2017 at about 2 a.m, a team of police officers conducted a raid on a premises known as Unit 3B-29-17, BJ Court, Jalan Rumbia 11900, Bayan Lepas, Pulau Pinang (“Premises”). The raid was led by PW4 and involved a total of 19 other police officers. The raid was conducted following information received by PW4 pertaining to drug activities at the said Premises. [4] [5] PW4 and his team arrived at the 29" floor of the said BJ Court condominium and then conducted a surveillance of the Premises for approximately 10 minutes. After observing that there were no movement of persons into and out of the Premises, PW4 proceeded to the Premises and knocked the main door of the Premises for several times whilst introducing himself as a police officer but there were no response from within the Premises. Fearing that illegal substances would be disposed PW4 instructed his team members to forcibly enter the Premises. The front grill door and the wooden door to the Premises were forcibly open and broken and PW4 and his team then entered the Premises. Upon entering the Premises they found the First and Second Accused. The First Accused was found in the toilet of the third room and the Second Accused was found in the third room. PW4 introduced himself as a police officer and did a body search on the First Accused whilst a body search on the Second Accused was done by a female police officer. A search of the Premises was conducted and the following were found: [6] [7] (a) In the toilet of the third room 1-large translucent plastic packet and 2 small plastic packets containing substances suspected to contain drugs (Exhibits P34A (1) (a) - (c); (b) On a table in the first room-a black zipped bag (Exhibit P47) was found and inside it were 3 large and 6 smaller translucent plastic packets containing substances suspected to contain drugs (Exhibit P36 (1)-(9)); and (c) Inside a kitchen cabinet-a printed bag (Exhibit P48) containing 2 large translucent plastic packets containing substances suspected to contain drugs (Exhibit P38 (1)- (2)) Apart from the items suspected to contain drugs, PW4 also seized other items that included an access card under the name of the First Accused (Exhibit P43), a weighing machine (Exhibit P42) and keys (Exhibit P45(1)-(3)). Both Accused were arrested and together with all seized items they were handed over to PW8 who is the Investigating Officer. Apart from both the Accused, no other person was arrested. [8] [9] The substances suspected to be drugs were sent to the Chemistry Department for analysis and based on the report issued by the PW6 (Exhibit P16), the substances seized were confirmed to contain heroin, monoacetylmorphines and methamphetamine. The First and Second Accused were consequently charged under the aforesaid Charges. All the Charges are read together with Section 34 of the Penal Code (common intention). A total of 8 witnesses were called for the Prosecution at the trial. The key witnesses are PW4 (leader of raiding team), PW6 (Chemist) and PWé8 (Investigation Officer). SUBMISSIONS AT THE END OF THE PROSECUTION’S CASE Submission by the Prosecution [10] It was submitted by the Prosecution that the identity of the drugs were clearly established by PW6 and Exhibit P16. The drugs seized were drugs listed in First Schedule of the Dangerous Drugs Act 1952. The credibility and reliability of PW6 were not challenged by the Defence during cross examination by Learned Counsels for both the First and Second Accused. Therefore there is no dispute on the issue of [11] [12] identity of the drugs and the results of the analysis as found in Exhibit P16. On the issue of possession of the drugs at the Premises it was submitted for the Prosecution that according to PW4 and PW8 there were no other persons arrested with both the Accused at the Premises. PW8 testified that her investigation showed that there were no other occupants in the Premises at the material time. The Prosecution also relied on the testimony of PW5 who is the landlord of the Premises. PW5 testified that he had rented the Premises to the First Accused in November 2016. When he met the First Accused for the first time the Second Accused was also with him. PW5 further testified that he met the First Accused for the second time sometime in March 2017 to repair the water heater in the toilet of the third room. During that visit he saw the Second Accused in the third room but did not see any other occupant. Still on the issue of possession, it was submitted by the Learned Deputy Public Prosecutor that both the Accused had custody, control and knowledge of the impugned drugs. These elements were proven through the following: [13] (d) Both Accused deliberately failed to respond to the Police when they initially knocked on the front door to the Premises which forced the raiding team to forcibly break the front door and enter the Premises; Both the Accused appeared shocked, pale and nervous or restless when the police entered the Premises and detained both Accused; There were DNA samples extracted from a towel found in the third room (Exhibit P61(A)). The DNA samples matched the DNA of both the Accused and this served to prove that both the Accused were the occupants of the Premises; The access card to the entrance of BJ Court was under the name of the First Accused; and Both Accused had failed to deny knowledge of the drugs when they were discovered by the Police in the Premises. Based on the culmination of all those factors, it was submitted for the Prosecution that custody, control and knowledge of the impugned drugs could be shown either by direct evidence or inferred from the circumstances of the arrest and discovery of the impugned drugs within the Premises. [14] On establishing the offence of trafficking, it was submitted that by the operation of Section 37 (da) (iiia) of the DDA, the presumption of trafficking applied towards both the Accused since the total weight of heroin or monoacetylmorphine or the combination of both drugs exceed the minimum threshold of 15 grammes. In the alternative it was submitted that the offence of trafficking under the First Charge came within the definition of ‘trafficking’ as provided under Section 2 of the DDA wherein the acts constituting trafficking included the act of keeping, concealing and storing any dangerous drug otherwise than under the authority of the DDA or regulations made under the DDA. Submissions for the First Accused On issue of possession under the First and Second Charge [15] It was submitted by Learned Counsel for the First Accused that possession of the impugned drugs were not prima facie proven because the Prosecution had failed to exclude the possibility of other 9 [16] persons having access to the Premises, the first room and the kitchen. It was submitted that the first and second rooms in the Premises are used by other occupants known as Ee Pak Do, Gelek@Nor Azizi, Musyady bin Ibrahim and Faizal Ahmad. The circumstances of other persons having access to the Premises are as follows: (a) (b) That PW5 had testified that when the First and Second Accused met him to rent the Premises there was one other male individual who attended the meeting. He also testified that the Premises was rented by 3 persons that is 2 male and 1 woman. It was further submitted that the Prosecution failed to call the property agent who arranged for the introduction of the Accused to PW5 as witness. The testimony of that witness would have served to provide information on who actually was the tenant and who was present at that meeting; That PW4 admitted in cross examination that there were beds and wardrobe cabinets on the first and second rooms in the Premises but he was unsure if those rooms were occupied by anyone; 10 With respect to the access card to the Premises it was submitted that PW5 admitted that the BJ Court management had contacted him regarding a request for additional access cards for the Premises. It was further submitted that in relation to this issue PW8 had failed to carry out investigations with the BJ Court management regarding known occupants to the Premises; PW8 admitted during cross examination that an individual name ‘Mus’ was named by the First Accused in his statement to the police to be an occupier of the first room in the Premises 2 months prior to the raid and that ‘Mus’ had a set of keys and access card to the Premises; By a letter dated 14.10.2019 (Exhibit D73) Learned Counsel for the First Accused had written to PW8 informing her that he was instructed by the First Accused that one ‘Musyady bin Ibrahim’ was the occupier of the Premises and that he had been arrested in relation to three drug related offences. PW8 confirmed that she did not follow up with any investigation regarding ‘Musyady’. 11 DNA samples were not taken from some personal items found inside the Premises. In addition to that, there was a possibility of degradation of DNA samples in the items seized but were kept by PW8 for more than 5 months in a steel cabinet before they were handed to the Chemistry Department for analysis. Possible degradation of DNA samples were confirmed by PW7 (Chemist) who undertook the DNA testing and analysis; In her DNA tests report (Exhibit P26) PW7 stated that the DNA analysis revealed the presence of an unknown male DNA found on a toothbrush (Exhibit P54(A)) which does not match or belong to the First Accused which was recovered from the toilet located next to the kitchen. It was the contention for the First Accused that the DNA may have belonged to ‘Musyadi b Ibrahim’. In addition to that it was submitted that PW7 had stated at paragraph 4 of Exhibit P26 that DNA profile could not be found on 7 items listed therein and she agreed in cross examination that the failure to identify any DNA could possibly be due to degradation of the samples; 12 (h) There was incomplete investigation with regards to eliminating presence of other occupants in the Premises due to the fact that PW3 had failed to seize all personal items found in the toilets for DNA testing including other toothbrushes and a shaver. PW3 admitted that 7 out of 11 samples collected were focused in the third room where both the Accused were found and arrested. PW8 had also confirmed that not all personal items visible in Exhibit P12(1)-(17) were collected for DNA testing and she also did not investigate the identity of a photograph of a woman seen in Exhibit P10(18); On the issue of possession under the Third Charge [17] With respect to the issue of possession under the Third Charge, Learned Counsel for the First Accused submitted there is a question as to whether the drugs were actually found in the toilet of the third room based on 2 main contentions: (a) It was submitted that in comparison to the detailed description of where the drugs were found in the first room and the kitchen, PW4 had only stated in his report (Exhibit P7) and the search list (Exhibit P8) that the drugs were found in the toilet and not in 13 (b) the sink of the toilet as testified by him during his examination in chief. His failure to give that detailed description in both Exhibits P7 and P8, suggests, according the Learned Counsel of the First Accused that the drugs were not found in the toilet as claimed by PW4 but were found outside the first room. It was also submitted that there was some 20 minutes before PW4 and his team successfully gained entry into the Premises and as such there was ample time for the First Accused to dispose the drugs by flushing the drugs down the toilet rather than allowing the drugs to remain in plain sight on top of the sink. It was therefore not plausible that the drugs were found on the sink as claimed by PW4. On the issue of being knowledae and reaction of the First Accused [18] It was submitted that reaction showed by the First Accused was not incriminatory as it is reasonable to expect that any person would be in a state of shock or fear when a group of men in pain clothes forcibly broke into the Premises. It was also submitted that the reaction displayed after the drugs were found in the kitchen and the first room also showed that both Accused did not have knowledge of the drugs 14 and supports the contention that the other occupant of the Premises are the traffickers. In addition, it was also submitted that both Accused are not married to each other and their reaction was also attributed to the fear of being caught by the Islamic religious authorities. Submissions by the Second Accused On the issue of possession [19] [20] [21] It was submitted by Learned Counsel for the Second Accused that the Second Accused did not have possession of the drugs. Whilst the Second Accused may have been in proximity of the drugs, proximity alone cannot prove possession. It was not shown by the Prosecution that the Second Accused had the power to deal in the drugs. It was further submitted that the Prosecution had failed to prove that the Second Accused was an occupier of the Premises. The absence of any women’s intimate articles or clothing supported the contention that the Second Accused was not an occupier. It was then submitted that the test fitting of the clothes seized cannot be used to prove the Second Accused’s occupancy of the Premises. 15 The clothes were oversized and were unisex. There was also the issue of whether PW8 had properly administered caution to the Second Accused under Section 37A (1) of the DDA prior to conducting the test fitting. [22] It was also submitted that the forensic team led by PW3 failed to lift any finger prints or DNA swabs from the packaging of the drugs although PW3 admitted that such a requirement would be crucial to determine who actually handled the packets containing the drugs. The testimonies of PW3 and PW8 when considered in its entirety showed that the Police had not done enough to identify the actual traffickers but were intent only on implicating both the Accused. [23] On the issue of common intention, it was submitted that there was no evidence against the Second Accused to show that there was a concert between her and the First Accused in the commission of the crime. On the issue of the Second Accused’s reaction [24] It was submitted that the display of fear or anxiety was not enough to prove possession of the drugs by the Second Accused. Learned 16 Counsel submitted that the Second Accused is not married to the First Accused and the fear arose from possibility that she and the First Accused were being arrested for a khalwat offence by the Islamic religious authorities. [25] The summation of the submissions by Learned Counsels for both the Accused is that the Prosecution failed to prove a prima facie case against each of them and therefore defence should not be called. DUTY OF THIS COURT [26] The duty of this Court at the end of the Prosecution’s case is clearly provided under Section 180 of the Criminal Procedure Code. This Court does not propose to repeat the oft quoted string of cases regarding what amounts to a prima facie case. Nonetheless for the purposes of a reminder to this Court, the guidelines set out in the famous Mohd Radzi’s guidelines in the case of PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 is reproduced below: [15] 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 17 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 | now call upon the accused to make his defence and he elects to remain silent am | 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.". DELIBERATIONS AND EVALUATION Identity of the drugs [27] Notwithstanding that the nature, identity, weight and chain of evidence of the impugned drugs were not challenged by Learned Counsels for both Accused during cross examination, it is. still incumbent upon this this Court to make its own evaluation and finding of the facts with regards to the nature, weight and chain of evidence 18 [28] of the impugned drugs and whether the Prosecution have discharged its burden of proof on this issue. After evaluating the evidence given by PW4, PW8 and PW6 and all relevant exhibits tendered through them, this Court finds no doubt that (i) the drugs seized in the Premises were drugs that come within the scope of and listed in the First Schedule of the DDA,; (ii) the chain of evidence from when the drugs were seized by PW4, handed to PW8 and then after to PW6 were not broken and clearly established and finally, (iii) the nature and weight of the drugs were clearly analysed and determined by PW6. Therefore, this aspect of the case was prima facie proven by the Prosecution. Possession of the Drugs [29] In deliberating the facts and issues pertaining to the issue of possession, this Court shall first consider the issue of possession under the First and Second Charge as the drugs were found in areas of the Premises where the First and Second Accused were not found that is the first room and the kitchen. After that has been considered and determined then this Court will deliberate on the issue of 19 possession under the Third Charge that is the drugs that were found in the adjoining toilet of the third room. Law on Possession [30] [31] In the Federal Court decision of PP v Denish Madhavan [2009] 2 CLJ 209, Abdul Aziz Mohamad FCJ stated as follows: {18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17, 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 edn, 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. In Chan Pean Leon v Public Prosecutor referred to in PP v Denish Madhavan (supra), Thompson J went on to state as follows: 20 “Possession” itself as regards the criminal law is described as_ follows in Stephen's Digest (9th Ed), p 304): “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.” To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. |f a watch is in my pocket then in the absence of anything else the inference will be clear that | intend to deal with it as if it were my own and accordingly | am in possession of it. On the other hand, if it is lying on a table in a room in which | am but which is also freguently used by other people then the mere fact that | am in physical proximity to it does not give rise to the inference that | intend to deal with it as if it 21 [$2] [33] belonged to me. There must be some evidence that | am doing or having done something with it that shews such an intention. Or it must be clear that the circumstances in which it is found shew such an intention. It may be found in a locked room to which | hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the court that the person who is physically in a position to deal with the thing as his own had the intention of doing so. Based on the above decisions it therefore falls on the Prosecution to prove that the Respondent had custody or control and knowledge of the drugs. On what constitutes at knowledge, the Court of Appeal in Pendakwa Raya v Lim Chsung Meng & Anor [2015] 1 LNS 1226: [35] Knowledge refers to a mental state of awareness of a fact. Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary. Animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the surrounding circumstances. (See Ong Ah Chuan v P.P [1981] 1 MLJ 64; P.P v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401; Surentheran Selvaraja v P.P [2005] 2 CLJ 264]. 22 [34] In Emmanuel Yaw Teiku v PP [2006] 3 CLJ 597 Richard Malanjum FCJ had stated: [15] ...lt should be borne in mind that proof of intention or knowledge is generally inferred from proved facts and circumstances. It is difficult to do so by other means unless there is a clear admission by the person himself. This difficulty had been acknowledged in the case of Chan Pean Leon v PP [1956] MLJ 237 when Thomson J said this (at p 239): Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. Whether there was possession under the First and Second Charge [35] Both the Accused were arrested in a Premises that has common areas and at least three bedrooms. Specifically they were arrested in the third room. The drugs under the First Charge were found in the kitchen cabinet packed in 2 large plastic packets (Exhibits P38(1)-(2)) within a bag (Exhibit P48) whilst the drugs in the first room were found in 3 large plastic packets and six smaller plastic packets (Exhibits P36(1)-(9)) within a black zipped bag (Exhibit P47). Where an arrest and discovery of drugs were discovered within a premises it 23 is incumbent upon the Prosecution to exclude the possibility that some other person or persons also had access to the areas where the drugs were found. In the Court of Appeal decision of Azizan Yahaya v PP [2012] 8 CLJ 405, Aziah Ali JCA in delivering the judgment of the Court stated the following: [16] The onus was on the prosecution to exclude, at the very least, the possibility of access by other persons to the drawer, if not the room, and that only the appellant and no other person had exclusive access and use of the drawer. The onus was not on the defence to prove possibility of access to the drawer by others. We find that the learned judge had failed to consider that the prosecution had failed to exclude the possibility that other individuals could not have had access to the drawer. In Leow Nghee Lim v. Regina [1955] 1 LNS 53 Taylor J dealt with the issue of possession as follows: A man must know of the existence of a chattel and have some idea of its whereabouts before he can exercise any control over it. The word possession therefore implies some knowledge but not necessarily full or exact knowledge. His Lordship said further: The word "possession" is a vague and general word which cannot be closely defined. 24 [36] Without at least general knowledge there cannot be possession but there can be possession without full and exact knowledge. [17] On the evidence the learned judge did not specifically make a finding of actual possession for the invocation of the statutory presumption of trafficking under s. 37(da) of the Act. In the absence of other incriminating evidence against the appellant, the mere fact that the drugs were found in the drawer on the appellant's side of the bed was insufficient for the learned judge to make an inference that the appellant had exclusive custody and control over the bag P8. Later, in another Court of Appeal decision in Mohamad Abdul Rahman v PP [2013] 7 CLJ 843, the following was held: [19] While acknowledging that the room is accessible to the appellant's friends and the friends of SP8, the learned trial judge concluded that there was no evidence to suggest that the appellant was framed either by his own friends or that of SP8's friends. As His Lordship had found, the appellant's defence is one of a denial as to any knowledge about the drugs. A frame up by others was never his defence. What the learned trial judge has failed to do was to evaluate and appraise the evidence on the possibility of the drugs to belong to or to have been placed there by others. This is a crucial part of the appellant's defence which His Lordship had failed to judicially and adequately consider. Failure of the learned trial judge to fully appreciate and evaluate the evidence of the witnesses is a serious misdirection, warranting appellate intervention. 25 [37] [38] [20] Taking into consideration the totality of the evidence, we are of the considered view that the learned trial judge had failed to consider that the room where the drugs were found was accessible to others and there was no exclusive custody and control of the drawer by the appellant. The matter to be determined, therefore, is whether in this case there were other persons who had access to the Premises, particularly the kitchen and the first room. The Prosecution contended that based on the evidence of PW4 and PW8 there were no other occupants in the Premises. This was however refuted by both the Accused. The First Accused primarily asserted that there is at least one person who has access of the Premises and that person is known as “Mus” or ‘Musyady bin Ibrahim’. PW8 had admitted in her cross examination that the name ‘Mus’ was provided by the First Accused when his cautioned statement was recorded. PW68 also confirmed that the First Accused had stated that ‘Mus’ was an occupant of the Premises 2 months prior to the raid, that he occupied the first room and that he had an access card and set of keys to the Premises. Whilst PW8 may have had a reason to state that there were insufficient information for her to launch an investigation on ‘Mus’ when the First Accused made that disclosure, that reason cannot 26 [39] [40] remain valid after the details of one ‘Musyady bin Ibrahim’ was disclosed to her by the First Accused’s Counsel via Exhibit D73. Exhibit D73 was issued by Learned Counsel for the First Accused after he was appointed by this Court to represent the First Accused and after he had received instructions from the First Accused. In that letter Learned Counsel for the First Accused had requested for copies of 3 first information reports pertaining to arrests involving ‘Musyady b Ibrahim’. PW8 admitted in cross examination that despite the information provided in Exhibit D73 she did not undertake any further investigation on the matter. Learned Deputy Public Prosecutor sought to argue that the information given by Learned Counsel for the First Accused was not an information provided under the First Accused’s cautioned statement and sought to rely on the case Alcontara a/! Ambross Anthony v PP [1996] 1 MLJ 209 . The facts of this case show that the First Accused had disclosed the name of ‘Mus’ when his cautioned statement was recorded and in this Court’s view that was early enough opportunity for the First Accused to notify the police regarding the existence of ‘Mus’. This Court 27 [41] agrees however that information was not sufficient to enable PW8 to launch an investigation. Learned Deputy Public Prosecutor further relied on the case of Mostafa Lesanibaroogh Ebrahim & Anor v PP [2017] 4 MLJ 177 to support his argument that the information to be provided by the First Accused must be one that was given during the recording of the cautioned statement and no other than that. On this point it would be relevant for this Court to quote what was stated by Hamid Sultan JCA in Phiri Mailesi (Zambian) v PP [2013] 5 MLJ 780: It is pertinent to note that the 'A/contara Notice' must have sufficient particulars in the right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story or version. It must also be given at the earliest opportunity at the material time of the arrest or at least upon counsel taking instruction from the accused to conduct its defence. Guided by Phiri Mailesi’s case, this Court holds that Exhibit D73 had constituted sufficient ‘Alcontara Notice’ to the police and it was incumbent on PW8 to investigate the truth of the First Accused’s information that ‘Musyady bin Ibrahim’ was an occupant of the Premises. Failure to do so is therefore a miscarriage of justice. The 28 [42] existence of ‘Musyady bin Ibrahim’ was sufficiently proven through Exhibits D74, D75 and D76 which are the first information report filed by the police with regards to his arrest on three separate occasions for drug related offences. There is no proposition of law that says the police is not obligated to investigate further into the matter when new and clearer information comes to _ their attention before commencement of the trial. In this Court’s view PW8 had the duty to ascertain the truth of the disclosure in Exhibit D73 not only for the benefit of the both the Accused but also to eliminate the risk that the Prosecution of this case will not be premised on an incomplete investigation that will lead to an embarrassment to the Prosecution’s case. The facts presented in this case must therefore be distinguished from the facts that were presented to the Courts in Teng Howe Sing v PP [2009] 3 MLJ 46, PP v Badrul Hisham [1998] 2 MLJ 585 and Chonmanee Laphathanawat v PP [2017] 4 MLJ 227 where in each of those cases the information provided by the accused were insufficient to cause the police to investigate further the characters who were named by the accused and there were no further information provided by the accused or his counsel prior to the trial. 29 The need to distinguish the facts in each case was demonstrated in the recent Court of Appeal decision of Ho Yee Onn v PP [2020] 2 CLJ 491 where it was held: [53] At the hearing of this appeal, as pointed out earlier, learned DPP's real contention is that the name of Woo was given belatedly, that there was delayed disclosure. In the Federal Court decision of Teng Howe Sing v. PP [2009] 3 CLJ 733, there was a five-day delay in disclosing the real identity of "Ho Seng" to the police, and even then, the existence of "Ho Seng" was challenged. That is entirely different from our instant appeal where not only does Woo exist, that fact is admitted by the prosecution; the evidence led by the prosecution show that P33 was checked in by Woo; that the luggage tag belonged to Woo; that the appellant did not check in any luggage himself; that the appellant was seen on his handphone prior to approaching carousel D to retrieve P33; that the appellant had informed the customs officers at first and every opportunity as to the ownership and existence of Woo. [43] The fatality of the failure of the police to investigate information received prior to a trial was demonstrated by the case of PP v Lopatkina Klavdiia (No 2) [2018] 1 LNS 2276. After referring to the decision of the Court of Appeal in Rahmani Ali Mohamad v PP [2014] 1 LNS 550 the Court held as follows: 30 [44] [32] The evidence shows that various documents had been issued by the Prosecutor General's Office in Ukraine to the Attorney General's Chambers in Malaysia. There was also information obtained from the National Police of Ukraine and the Embassy of Ukraine in Malaysia. These documents were sent to the Prosecution long before the commencement of trial and not only was there no investigation carried out by PW7, but he went on to state that it was not important for him to conduct any further investigation. [33] In a case such as this when the Accused is in rem and, the Investigating Officer is duty bound to investigate any information produced by the Accused directly or through Counsel, so long as it is relevant, Having gone through the various documents tendered, i.e. D91, D92, D93, D96, D97, DY8 and D9Y9Y, the Court cannot see how PW7 could come to the conclusion that it was not relevant. The veracity of the contents of the said documents would amount, if not to an absolute defence, at the very least to raise some doubt as to the culpability of the Accused. [34] The shoddy investigation carried out by PW7 has clearly prejudiced the Accused. Despite been given substantial information, the lackadaisical attitude of PW/7 in investigating matters which could exonerate the Accused is extremely unfortunate. In Rahmani Ali Mohamad (supra) the Court of Appeal held as follows: 31 [15] Even more, no investigation at all was carried out by PW8 to disprove the appellant's version of fact, particularly concerning Mohd Reza, which was given by the appellant at the earliest possible opportunity. In this regard, PW8 said that he did not investigate the appellant's handphone because “saya terlepas pandang”. PW8 also said, "saya tak periksa rekod-rekod panggilan keluar masuk OKT 2. Jika disiasat mungkin boleh dapat maklumat lanjut". The appellant cannot be penalised for lack of ingenuity, negligence or inadvertence on the part of the investigator depriving him of the time honoured benefit of doubt (see: Pang Chee Meng v. PP [1992] 1 CLJ 39; [1992] 1 CLJ (Rep) 265; [1992] 1 MLJ 137). The manner in which PW8 had conducted his investigations left many stones unturned and material gaps exists. Based on this omission, an inference in the appellant's favour ought therefore to have been drawn by learned High Court Judge at the close of the prosecution case (see: Lee Kwan Woh v. PP [2009] 5 CLJ 631 and Alcontara Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705; [1996] 1 MLJ 209). [16] In our judgment, the appellant's right to a fair trial has been compromised as a result of the failure of PW8 to carry out investigation to verify the appellant's version of fact. The appellant may thereby have lost a chance which was fairly opened to him of being acquitted and that there had been occasioned a failure or a miscarriage of justice (see: Mraz v. The Queen [1955] 93 CLR 493 quoted with approval in Lim Hock Boon v. PP [2007] 4 CLJ 114; [2007] 1 MLJ 46). 32 [45] In avery recent decision of the Federal Court in Maria Elvira Pinto Exposto v PP [2020] 5 CLJ 1, Tengku Maimun bt Tuan Mat CJ stated as follows: [58] There is another aspect of the case that needs mention. In relation to the essential aspects of her defence, the appellant had given “Alcontara Notice’... [59] In the instant case, not only did the appellant give good “Alcontara Notice” to the prosecution through her cautioned statement, her legal representative had also done so through a letter to the investigating officer dated 24.12.2014, where paragraph 10 reads: “According to our Client, she has informed you of several names of persons who can of assistance to support her defence and these persons contact details can be found in her mobile phone which has been seized by you upon her arrest. We request access to her mobile phone so that we can record the numbers of these key persons, kindly let us know when and where. We can do this in your presence. But we would strongly suggest that you immediately get an expert to access the logs and dates in our client’s handphone immediately and to preserve the integrity of the phone until trial.” [60] There was no reply from the investigating officer to the letter dated 24.12.2014. The appellant’s legal representative again wrote to the investigating officer on 31.10.2016 inter alia that “Following our interview with the Client, we 33 [46] received her instructions to access to her emails and Facebook profile to obtain documents and the names of few individuals who are of assistance and crucial to her defence.”. By this letter, particulars believed to be relevant to the investigation were given. [61] The investigating officer, PW7 admitted that he did not conduct any investigation whatsoever on Captain Daniel Smith or Tega Collins, although they played a crucial role in the present case. Continuing therefrom, this Court further finds that the presence of the DNA of an unknown male found on a toothbrush (Exhibit P54(A)) as testified by PW7 lent credence to the possibility that there may be another person who had access to the Premises. PW4 admitted that he was unsure if there could be other occupants in the Premises when question by Learned Counsel for the First Accused. This Court cannot agree with the contention of the Learned Deputy Public Prosecutor that the discovery of the DNA of both Accused from a towel means that they were the only occupants or the only persons who had access to the Premises. Notwithstanding that PW5 had testified that he did not see anyone other than both the Accused when he went to repair the water heater in the Premises 3 months after the tenancy commenced, it cannot be said there were certainly 34 [47] no other person or persons having access to the Premises before or after that date. In this Court’s view it would be unsafe for this Court to ignore the discovery of the DNA of the unknown male. In the Court of Appeal decision of Tan Teck Seng & Anor v PP [2018] 10 CLJ 315, Mohd Zawawi Salleh JCA held the following: [40] Further, there is the presence of the DNA of "Female 1" on the towel and the pillowcase found in the said apartment. The prosecution ought to have excluded these persons but this was not done and it is fatal to the prosecution's case. The facts in this case must therefore be distinguished from cases where DNA were held to be irrelevant where the evidence of the possession of the drugs were overwhelming. By way of example, in the recent decision of Low Song Kim v PP [2020] 1 LNS 117, the Court of Appeal dismissed the argument for the accused that the presence of DNA of 3 unidentified persons showed that the accused did not have exclusive possession of the house on the grounds that the drugs were found exposed on a table in the sitting area of the house where the accused was arrested. Earlier in PP v Prince Uzoma Nwaoguegbe [2019] 1 LNS 1344 the Court of Appeal dealt with the issue of DNA as follows: 35 [32] Another reason cited by the learned trial judge for finding the defence had raised reasonable doubt in the prosecution's case was the presence of mixed DNA on the pair of shorts found inside P6 and thus there was access of others to the bag. His Lordship said at page 45 and 46: "Di dalam kes di hadapan saya ini, P34 menunjukkan terdapatnya kehadiran DNA lelaki asing (mixed DNA) pada seluar pendek yang diambil daripada bagasi P6. Dengan kata lain, terdapat akses oleh orang asing selain daripada Tertuduh terhadap isi dalam bagasi P6. Oleh itu, di dalam keadaan ini, pihak pendakwaan telah gagal untuk "exclude" kemungkinan adanya akses oleh orang’ asing. KehadiranDNAasing _ telah membangkitkan suatu keraguan yang munasabah." [33] With respect, we were of the view the learned trial judge had erred when his Lordship placed so much weight on the presence of the mixed DNA without taking into account the narrative of the prosecution's case and that of the defence. The evidence from the prosecution was clear that it was the Respondent alone who was carrying the bag when he was arrested. It was also in evidence of the Respondent in the defence stage that when he received the bag, it was empty and nothing was inside, in which the Respondent then packed all his personal items inside the bag. There was never any suggestion or challenge by the Respondent that the pair of shorts which was found inside the bag (which contained the mixed DNA) was somebody else's shorts or there was intrusion into the content of the bag by anybody else. Therefore, there was not 36 [48] [49] even a suggestion let alone evidence to suggest that there were access by others to the bag and its contents by the defence. The question of whether the issue of DNA may come to the aid of an accused is therefore one that is determined by the facts of each case. As much as not all cases where the presence of DNA of an unknown person creates a reasonable doubt in the Prosecution’s case, not all cases where the DNA of an unknown person is found should be discounted where there are cogent reasons to point towards a weakness in the Prosecution’s case. In each case the answer to be answered is whether despite the consideration of DNA, the accused’s knowledge of the drugs is established whether by way of direct evidence or can be inferred from the circumstances of the case. On the issue of knowledge this Court further refers to the decision of the Supreme Court in Gooi Loo Seng v PP [1993] 3 CLJ 1 where it was held: We need hardly add, that even if the appellant had known of the presence of the heroin in his bedroom, that by itself would not have been sufficient to establish that he was in possession or in control of it given the fact that others too, and certainly his girlfriend Tan Ah Kwai, had access to the bedroom and could have 37 [50] concealed the heroin there. At the end of the day, this was a case of the proverbial cap which might have fitted not just the head of the appellant but that of others as well. Returning to the facts of this case, both the Accused were found in the third room and the impugned drugs were found in the kitchen cabinet and the first room. The impugned drugs were found concealed in a bag in the cabinet and a zipper bag on a table. They were not found exposed in any common area. PW4 testified that it took almost 20 minutes for the police to gain entry into the Premises. Whilst that could point towards the guilt of the both Accused, yet the circumstances of the facts do not conclusively point towards guilt with regards to the impugned drugs found in the kitchen and the first room. PW4 testified that his officers saw some packages containing drugs that were thrown out of a unit and recovered at the grounds of the BJ Court condominium. If those drugs did come from the First Accused, wouldn’t he have done the same for the drugs stashed in the kitchen and the first room? After all these drugs were greater in quantity and the Accused would have in all likelihood attempted to dispose those drugs first. Yet, the fact that the drugs were found in their respective containers and both the Accused were found in the 38 third room suggests the possibility that they had no knowledge of the drugs. There is therefore a doubt on whether both the Accused are the sole occupants of the Premises and whether they had knowledge of the drugs. Mere proximity of both Accused to the drugs in this case cannot raise a strong inference that both Accused had custody or control over and knowledge of the drugs found in the kitchen and the first room. As held by the Court of Appeal in Lim Chsung Meng & Anor (supra): [25] It is perhaps convenient at the outset to briefly state the law on "possession" where the drugs were found in a place/area under the control of an accused. A determination of whether there is "possession" depends on the particular facts of each case. Factors that used to be considered in determining whether an accused is in possession of the drugs found in a place/area under his or her control include his or her knowledge that the drugs were in the place/area, his or her access to the place/area where the drugs were found and his or her physical proximity to the drugs. [26] The possession prohibited by law need not be actual physical custody and control of the drugs; it is sufficient if the prosecution proves that the accused had knowledge of its presence and the power and intent to control its disposal. Further, possession need not be exclusive; a person may be deemed to be in joint possession of a drug which is in the physical custody and control of another 39 [51] person, if he or she wilfully shares with the other the right of contro! over the drug. [27] As a matter of common sense, there is a strong inference that a person who is the sole occupant of a house or apartment has custody or control over anything in the house or apartment. Where the drugs are found in a dwelling house, then it would be reasonable to infer that the sole occupant knowingly possessed the drugs. On the other hand, where there is more than one person living at the residence, there must be some additional evidence to prove the guilt of each of the accused. While association between the accused may be relevant, association alone is never sufficient to prove guilt beyond a reasonable doubt. In Lim Chsung Meng (supra), the appellants failed in their bid to turn over their conviction. It would be pertinent at this juncture to understand the Court of Appeal’s factual considerations in arriving at their decision and why those considerations do not apply in the present case: [29] We have carefully reviewed the Appeal Record and found that the prosecution had proved that both respondents had control and custody of the impugned drugs found in the said house. The prosecution had adduced the facts, evidence and the circumstances as follows:- (a) The 1* respondent rented the said house. This was confirmed by SP9; 40 (b) The 1*' and 2" respondents were present and seated on the sofa in the living room of the said house when SP7 and his officer raided the house; (c) The 1% and 2™ respondents’ clothing were found in the living room and in the room upstairs; (d) 2 keys (Exhibit P49(A-B)) of the said house were found and seized from the table in front of the 1%' and 2" respondents where they were seated in the living room; (e) The weighing scale, the 1%trespondent's and the 2°" respondent's international passports were found mingled with the impugned drugs on the table which were in their "plain view"; (f) There was no other occupiers or persons present in the said house when the raid was conducted; (g) The "Julie" biscuit tin containing the impugned drugs was found in the dining room floor at a distance of about 6 feet from the sofa where the 1° respondent and the 2"¢ respondents were seated; (h) The seized clothings fitted and matched with both respondents; and (i) The DNA profiling of the respondents on the comb (Exhibit P25B) and the male garment (Exhibit P26B) was detected with a mixed DNA profiling of at least two individuals which was consistent with the DNA profiling of both respondents 41 [52] and the tooth brush (Exhibit P28) was detected with the DNA profiling of the 1° respondent. [30] In our view, based on the above evidence, it is clear that there was "affirmative link" between both respondents and the impugned drugs other than the evidence of their presence and proximity to the said drugs. The single most important link or connection between both respondents and the impugned drugs was the simple fact they were sitting on the sofa in the living room at a distance of 6 feet away from the place where the "Julie" biscuit tin which contained the impugned drugs was found. This evidence constituted strong "presence" and "proximity". Both respondents were not merely present in a house with the impugned drugs cached away somewhere but the impugned drugs were right under their noses. The "Julie" biscuit tin was in their plain view. This was the first link. They were the only persons present in the house when the raid was conducted. This was the second link. Both respondents’ clothings were found in the living room and in the room upstairs and the seized clothings fitted and matched with them. This was the third link. The DNA profiling of the respondents on their several personal items was consistent with the DNA profiling of both respondents. This was the fourth link. In comparison to the factual considerations by the Court of Appeal reproduced above, in the present case the drugs were not found in plain view and both Accused were not found in either the kitchen or the first room. In the present case the DNA of the both Accused were 42 [53] found based on items taken mainly from the third room as admitted by PW3 and there is a DNA of an unknown male in one of the items collected. There was a failure to collect samples from clothes found in other parts of the Premises as also admitted by PW3 when he was referred to Exhibit P12 (2) by Learned Counsel for the First Accused and the Second Accused and therefore there is uncertainty if those clothes belong only to both the Accused. In his submission, Learned Deputy Public Prosecutor made reference to the Federal Court decision in PP v Abdul Rahman Akif [2007] 4 CLJ 337 for the proposition that notwithstanding that the drugs that were discovered in the kitchen cabinet and the first room were not in plain view and concealed, that in itself cannot show that the Accused in this case do not have knowledge of the drugs. Again, as amply stated by many decisions, each case must be adjudged by its own facts and circumstances and therefore no principle of law can be taken to be applied freely across the board. In Abdul Rahman’s case the following were concluded by the Federal Court: [27] It is trite law that the court need not be convinced of the defence story to entitle the accused to an acquittal. The burden of proof on the accused is indeed 43 [54] a light one which is merely to cast a reasonable doubt on the prosecution's case. (See /llian & Anor v. Public Prosecutor [1988] 1 LNS 139; [1988] 1 MLJ 421). In the present case the respondent's defence was that although he knew about the existence of the three packages in the car, which he claimed were put in the car by Jiri, but he had no knowledge that they contained drug. He was informed by Jiri that they contained cloth samples. Upon close scrutiny we find his story to be highly improbable for the following reasons. Firstly, if it is true that he came to Johor Bahru to collect cloth samples from Jiri, the question is what was the need to meet Jiri at around 3.30 in the morning. Certainly this could have been done at a more convenient time. Secondly, if the 3 packages contained cloth samples as claimed by the respondent the question arises why should they be hidden under the seats of the car as found by the police. The manner in which the three packages were concealed in the car goes to show that the appellant knew of the content of the three packages. In the circumstances, we find his story about the meeting with Jiri to be highly fictitious. It was no more than an attempt to show that he had no knowledge of the content of the 3 packages. In the final analysis, we are satisfied beyond reasonable doubt that the respondent had custody and control of the three packages and he knew that they contained drug. In contrast, the present case shows that the drugs were not in the physical possession of either Accused and more importantly, the discovery of the drugs were achieved through a search of the premises by PW4 and his team and not through a disclosure made by either the Accused. 44 [55] Continuing further on the issue of possession, this Court also takes the considered view that the absence of both the Accused’s finger prints on the bag in the kitchen cabinet, the zipped bag and all the packets containing the drugs discovered therefrom did not help the Prosecution in proving possession against both the Accused. Whilst finger printing may only serve as a corroborative evidence and in many cases not necessary because the drugs were found in the physical possession of the accused or the evidence of possession is overwhelming, it is relevant for the Court's consideration when the issues of control or custody and knowledge of the drugs are not conclusively proven in favor of the Prosecution. As stated by the Court of Appeal in PP v Ni Komang Yuningsih [2017] 1 LNS 720: It was also urged upon us that there was a gap in the prosecution's case as they have failed to investigate the telephone numbers, messages and did not do finger print test, DNA test or nail clippings test. Such investigations, if had been done, would have shown that the respondent is an innocent carrier. SP9 had explained that he did look for the said John Amadi at the arrival hall of LCCT with 4 other officers but to no avail. Efforts taken by SP9 to investigate the telephone numbers and the email address of John Amadi turned out to be futile. The DNA evidence or fingerprint lifting are only corroborative in nature when all other 45 important ingredients of the offence, i.e. custody and control, and knowledge are proven. There are ample evidence implicating the respondent with the commission of the offence and rendering the DNA evidence or fingerprint lifting to be of little relevance (see Yeo Kwee Huat v. Public Prosecutor [2011] 5 CLJ 630). [56] In conclusion, based upon the all the above deliberations and analysis, this Court therefore finds that the Prosecution has failed to discharge their burden to prove the element of possession against both the Accused under the First and Second Charge. On the element of trafficking under the First Charge and Second Charge [57] Flowing from this Court’s finding on the issue of possession, the offence of trafficking under the First Charge and Second Charge were therefore not established either by applying the definition under Section 2 of the DDA or the presumption under Section 37 (da) (iiia) of the DDA. Possession under the Third Charge [58] According to the Prosecution’s case the drugs that are the subject matter of the Third Charge were found inside the sink of the toilet of the third room. These drugs were found in 2 small plastic packets that 46 [59] were found in a large plastic packet (Exhibits P34A(1)(a)-(c)). The First Accused however contends that the drugs were not found in the sink but were instead found in the first room. This basically suggests that PW4 and his team had moved the drugs from the first room to the toilet of the third room. In his submission Learned Counsel for the First Accused had argued that the reading of Exhibit P7 and Exhibit P8 showed that there is a detailed description of how and where the drugs were found in the kitchen cabinet and the first room whilst for the drugs in the third room the description was very general. That general description amounted to some indication that something was amiss. It was also contended that since the drugs were said to be found in the sink for the first time in PW4’s witness statement and his testimony during trial then there is a question on whether the drugs were in fact found in the sink of the toilet. During cross examination PW4 had denied that the drugs were not found in the third room. His denial was consistent. He stated that the circumstances of the recovery of the drugs were sufficiently explained in WSP4. This Court finds PW4 to be a truthful witness and therefore accepts his explanation that he and his team had first apprehended both Accused, did a body search and then proceeded to inspect the 47 [60] Premises to search for and seize any illegal drugs. The first discovery was the drugs in the toilet to the third room. This Court finds no reason to think that the steps taken by PW4 and his team are irregular. One particular fact that deserves comment is that when PW4 and his team entered the Premises both the Accused remained holed up in the third room. The door to the third room was locked and PW4 had to kick the door to the third room before entering it. Evidence of that is found in the photograph Exhibit P10(13). Based on those evidence this Court finds no reason to doubt that the drugs under the Third Charge were found where the First Accused stood when he was arrested. The fact that he remained in the toilet at the time he was found and not in the third room together with the Second Accused means that he was preoccupied with something more important and urgent. That preoccupation must be towards the drugs that were found in the sink. Learned Counsel for the First Accused contended that the fact that the First Accused had at least 20 minutes to dispose of the drugs can only mean that he was not with the drugs in the toilet. For the reasons just described, that contention is untenable. Furthermore, as much it can be argued that it was not plausible that the First Accused would permit the drugs to 48 [61] remain in the sink despite realizing that the police were attempting to break into the Premises meant that the drugs were not there until the police arrested both the Accused, it can also be argued that those drugs were the balance of drugs that were already disposed. In any case, since there is no evidence to support either proposition, there is no necessity to dwell further into the issue. After considering all evidence and circumstances, this Court is satisfied that the First Accused was in immediate. proximity of the impugned drugs and had possession of the same. The First Accused had knowledge and control of the drugs. The test of possession as propounded in the decisions referred to in the earlier parts of this Judgment applies to the First Accused. Therefore the element of possession of the drugs by the First Accused under the Third Charge is proven. With regards to the Second Accused, it is the Prosecution’s case against her that the Second Accused is the occupant of the Premises based on (i) the testimony of PW5 who saw her when the Premises was rented to the First Accused and when he went to the Premises 3 months later to repair the water heater; and (ii) the discovery of her DNA on a towel that was recovered from the third room (Exhibit P61(A)). However, PW8 agreed in cross examination by Learned 49 [62] Counsel for the Second Accused that no women’s intimate items were found or seized from the Premises. This Court further notes that in the Seizure List (Exhibit P8) no personal documents under the name of the Second Accused including her Identity Card was seized. Additionally, apart from the towel, there is no conclusive proof that the other clothes seen in Exhibit P12 (2) belonged to the Second Accused. After considering the above factors, this Court cannot agree with the Prosecution that the Second Accused was an occupant of the house. It was suggested by both Learned Counsels for both Accused that the Premises was used only as point of rendezvous to serve their affair as they are not married to each other. Whilst that suggestion is not relevant as far as the First Accused is concerned since this Court has found that the First Accused was in possession of the drugs, it is accepted as probable with regards to the Second Accused. Whilst she may have been found holed up in the third room, she was not in the same proximity to the drugs like the First Accused. Her DNA or finger prints were not found on any of the packets found in the sink. As stated by the Court of Appeal in PP v Ihuoma Anthony Onyedikachi & Anor [2015] 1 LNS 830: 50 [17] ... We are of the view that the mere fact of occupation of the apartment or physical proximity to the drugs without more is insufficient to show that the respondents had custody or control, and hence mens rea possession, over the drugs. [63] Based upon the above deliberations, this Court does not find that the Prosecution have proven to the satisfaction of this Court that the Second Accused had possession of the drugs. Regarding the reaction of the both the Accused [64] The Prosecution sought to also rely on the reaction of both Accused when the PW4 and his team arrested them. Based on PW4’s evidence, both Accused looked scared, pale and nervous/restless. The Learned Deputy Public Prosecutor relied upon the oft quoted decision of the Federal Court in Parlan Dadeh v PP [2009] 1 CLJ 717 for the proposition that the conduct of an accused is admissible under Section 8 of the evidence Act 1950. Since that decision, the case of Parlan Dadeh has been referred to repeatedly in numerous cases where the evidence of the conduct of an accused is relied on to infer knowledge of the crime committed and guilt. However, it is very 51 important to reproduce the observations and analysis of the Federal Court on this issue: [36] The law relating to evidence of conduct is thus patent. If there is no evidence to show that the conduct is influenced by any fact in issue or relevant fact as required bys. 8 then it is not admissible as it would then be an equivocal act justifying inferences favourable to the accused being drawn. If it satisfies the requirement of s. 8 it is admissible. It must be observed that the degree of proof required to establish evidence of conduct would depend on the nature of the conduct. Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like the accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required. The onus is on the accused to explain his conduct pursuant tos. 9. Such explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstance (see R v. Stephenson [1904] 68 JP 524). The onus may be discharged even in the course of the case for the prosecution, for example, by way of cross-examination of relevant witnesses. [37] It is now appropriate to consider the rationale of the court in explaining the conduct of the accused in running away in Abdullah Zawawi Yusoff v. PP [1993] 4 CLJ 1 which formed the basis of the submission of the appellant. In that case 52 [65] the drugs were found in a house occupied by the accused, his wife and a third person. The court considered the evidence of possible access to the house by others, and in distinguishing the case from DPP v. Brooks [1974] 2 All ER 840, held that the conduct of the accused in running away was equally consistent with him having been in a state of pure panic even though he did not offer any explanation himself. On the other hand in DPP v. Brooks [1974] 2 All ER 840 the accused was in the driver's seat of a stationary van with several others. There were drugs in the van. When the police approached the van all of them ran. The conduct of the accused in running away was held against him. The difference in both the cases is that in Abdullah Zawawi Yusoff v. PP [1993] 4 CLJ 7 there was no evidence to show that the act of the accused in running away was influenced by any fact in issue or relevant fact within the meaning ofs. 8 in view of the possibility of access to the house by others. Applying those analysis to the facts of this case, this Court holds the view that the reaction of the both the Accused cannot support the Prosecution’s case with regards to the First and Second Charge in view of the finding of this Court on the issue of possession as deliberated above. It is not incredible that their reaction was consistent with someone who had no knowledge of the drugs that were found in the bag in the kitchen cabinet and in the zipped bag in the first room. However, with regards to the drugs found in the third 53 room, the reaction of the First Accused is relevant since he was found in the immediate proximity of the drugs. It cannot however, be said of the Second Accused’s reaction. It was put to PW4 by Learned Counsel for the Second Accused that she looked scared and restless because she was afraid that she will be arrested for the offence of proximity between an unmarried woman and man since both the Accused are muslims. In this Court’s view that suggestion is not implausible notwithstanding that her fear may also have been triggered because she has found herself facing charges of possession of drugs that she have not been aware of (under the First and Second Charge) and being equally accused of possession of drugs that belonged to the First Accused. Given that this Court has found that the Second Accused (i) did not have possession of the drugs under the First, Second and Third Charge, and (ii) did not have the common intention to commit the offence under the Third Charge, her reaction cannot be considered to be corroborative of any guilt. It is trite law that when more than one inference can be drawn in favor an accused any benefit of doubt from that inference must be given to the accused. 54 Common Intention [66] All the Charges against both Accused are premised on a common intention to commit the offences as provided under Section 34 of the Penal Code. As to what common intention is, one need not look further than what was stated by the Supreme Court in Namasiyiam & Ors v PP [1987] 2 MLJ 336: In law, common intention requires a prior meeting of the minds and presupposes some prior concert. Proof of holding the same intention or of sharing some other intention, is not enough. There must be proved either by direct or by circumstantial evidence that there was (a) a common intention to commit the very offence of which the accused persons are sought to be convicted and (b) participation in the commission of the intended offence in furtherance of that common intention. Where the prosecution case rest on circumstantial evidence, the circumstances which are proved must be such as necessarily lead only to that inference. Direct evidence of a prior plan to commit an offence is not necessary in every case because common intention may develop on the spot and without any long interval of time between it and the doing of the act commonly intended. In such a case, common intention may be inferred from the facts and circumstances of the case and the conduct of the accused. (The Supreme Court (of India) on Criminal Law (1950-1960) by J.K. Soonavala p. 188 to 193) 55 [67] [68] Following the above principles, this Court is of the considered view that based upon all the matters stated above, there is no common intention between both the Accused to commit the crime under the First and Second Charge. Since this Court has held that possession of the drugs under the First and Second Charge were not proven then it follows that there cannot be a common intention to commit the offences therein. It leaves then the question of whether there was common intention to commit the offence under the Third Charge. Since this Court has found that there is insufficient evidence to show that the Second Accused is an occupant of the Premises and that the proximity of the Second Accused to the drugs is not sufficient to infer possession under the Third Charge, is there evidence whether direct or circumstantial to show that there was a common intention between the Second Accused and the First Accused to commit the crime? Whilst the Second Accused may be a companion to the First Accused there must be more than a mere relationship to show that the Second Accused had the intention to commit the crime with the First Accused. Whilst it would appear at first glance that (i) her presence when the First Accused met PW5 to rent the Premises, (ii) her presence at the Premises when PW5 went there to repair the water heater 3 months 56 after the tenancy, (iii) the presence of her DNA on the towel and (iv) her presence with the First Accused locked up in the third room when the Police raided the Premises would point towards her culpability alongside the First Accused, this Court is not convinced that there has been a prior concert of mind to commit the crime in question. In this Court’s view her mere presence in the room where she and the First Accused were arrested could not automatically point towards a common intention to commit the crime of possession of the impugned drugs. Considering the totality of the Prosecution’s evidence this Court holds the view that there is insufficient direct and circumstantial evidence to prove or infer a common intention by the Second Accused under the Third Charge. DECISION AT THE END OF THE PROSECUTION CASE [69] Guided by what was set out by Mohd Radzi’s case (supra) referred to at the earlier part of this Judgment, this Court finds and decides as follows: (a)The First and Second Charge 57 The Prosecution has failed to prove a prima facie case against both the First and Second Accused and for that reason, the First and Second Accused are discharged and acquitted under both Charges. (b)The Third Charge (i) The Prosecution has proven a prima facie case against the First Accused and he is hereby ordered to enter his defence to the Third Charge. (ii) The Prosecution has failed to prove a prima facie case against the Second Accused and she is hereby discharged and acquitted under the Third Charged. PLEA OF GUILTY [70] Following the decision of this Court, Learned Counsel for the First Accused took instructions from the First Accused and this Court was then informed that the First Accused desired to plead guilty to the Third Charge. 58 [71] This Court ascertained in the presence of the First Accused’s Counsel and was satisfied that the Accused understood the nature and consequence of his plea of guilty and that he will be liable to conviction under Section 12(2) and punishable under 39A(2) of the DDA. [72] The First Accused admitted to the facts and evidence presented during the Prosecution’s case in relation to the Third Charge. Documentary and physical exhibits in relation to the Third Charge were tendered by the Deputy Public Prosecutor and shown to the First Accused and they were all admitted by him. [73] This Court then proceeded to record the Accused’s plea of guilty under the Third Charge and accordingly convicted the Accused under Section 12(2) of the DDA and punishable under section 39A (2) of the DDA. SUBMISSIONS ON MITIGATION By the First Accused [74] Learned Counsel for the First Accused submitted that the First Accused is 46 years old and had little formal education. He is married Sy) [79] with 2 children aged 21 and 18 respectively. He worked as a welder who earned between RM50-RM60 a day. The First Accused was remorseful and Learned Counsel for the First Accused pleaded for this Court's favorable consideration towards the First Accused’s plea of guilty at the end of the Prosecution case which had saved the Court’s further time and costs. Learned Counsel submitted that the First Accused did not plead guilty at the earlier stage of the trial since he also faced a charge under section 39B (1) (a) of the DDA under the First and Second Charge. In seeking for a fair and just sentence, Learned Counsel for the First Accused referred this Court to the decision of the Court of Appeal in Nor Azri Izzati Binti Rosle v Pendakwa Raya [2019] 1 LNS 555. In that appeal, the amount of methamphetamine involved was 103.35 gram which is more than twice than the amount in the present case. The appellant in that case was initially found guilty at the conclusion of full trial and was sentenced to death under Section 39B (1) (a) of the DDA. Following a representation made by the appellant, that conviction was then substituted to one under Section 12(2) of the DDA and punishable under Section 39A (2) of the DDA when the case came before the Court of Appeal. The Prosecution referred to a 60 string of cases in seeking a minimum imprisonment sentence of 15 years since the appellant was a female and by law the punishment of whipping cannot be imposed on her. In passing an imprisonment term of 12 years on the appellant, Kamardin Hashim JCA in delivering the judgment of the Court stated as follows: [13] Kami sedar tentang prinsip undang-undang mantap mengenai penghukuman bahawa faktor utama yang wajar diberikan pertimbangan adalah faktor kepentingan awam terutamanya yang melibatkan kesalahan serius. Kesalahan yang melibatkan dadah berbahaya sememangnya satu kesalahan serius kerana kesannya boleh mengancam keselamatan negara dan ketenteraman awam. Walau bagaimanapun, ini tidak bermakna faktor-faktor lain serta prinsip penghukuman yang matan diketepikan begitu sahaja. [15] Antara alasan Puan TPR meminta hukuman minimum 15 tahun penjara ialah kerana Perayu akan terselamat dari dikenakan sebatan minimum 10 rotan. Kami tidak bersetuju dengan alasan tersebut. Dalam kes Ros/i Bakar (supra ), responden dalam kes itu berusia 57 tahun dan terselamat dari menerima hukuman sebatan namun masih dikenakan hukuman 12 tahun penjara walaupun melibatkan berat dadah Methamphetamine yang lebih dari berat dadah yang terlibat dalam kes terhadap Perayu. 61 [76] Learned Counsel for the First Accused further sought this Court to distinguish the facts of the present case from the facts of the case in Nor Azri’s where in those cases the weight of methamphetamine was far greater than the present case and sentence was done at the end of a full trial. By the Prosecution [77] Learned Deputy Public Prosecutor submitted that this Court should take a deterrent approach in passing sentence due the seriousness of drug related offences. To support his submission, Learned Deputy Public Prosecutor referred to 2 unreported decisions of the Court of Appeal in Abu Talib bin Bakri v Pendakwa Raya (No J-05(SH)-455- 05/2018) and Pendakwa Raya v Mohamad Janoosi Mohamad Jiffry (P-05(H)-898.90-02-2019). In Abu Talib’s case the appellant was sentenced to 14 years imprisonment and 10 strokes of whipping after pleading guilty to 2 offences for the possession of 24.01 grams of heroin and 5.18 grams of monoacetylmorphine. In Mohamad Janoosi’s case the Court of Appeal affirmed the decision of the High Court where the appellant was sentenced to 12 years imprisonment 62 [78] and 10 strokes of whipping for the possession of 23.4 gram of heroin and 3 grams of monoacetylmorphine. Premised on those cases, Learned Deputy Public Prosecutor submitted that this Court should pass a sentence of imprisonment of not less than 10 years in addition to the mandatory whipping. This Court’s deliberation [79] In considering the approach to sentencing in this case, this Court refers to the Court of Appeal decision in Public Prosecutor v Khairil Anwar bin Abdul Rahim [2016] 3 MLJ 458 where Harmindar Singh JCA stated as follows: [13] In drug cases, the mitigating factors that can usually be taken into account are a guilty plea, being a first offender or a young offender. The aggravating factors usually involve a consideration of the gravity of the offence, the type of drugs involved and the weight of the drugs. These considerations are by no means exhaustive as mitigating or aggravating factors. The paramount consideration in the end is public interest which may vary according to the circumstances of each case. 63 [80] [15] With regard to the plea of guilt, we agree that in exceptional cases a guilty plea may not result in a lesser sentence, for example in a case where a serious offence is committed (Public Prosecutor v Leo Say & Ors [1985] 2 CLJ 155) or where there is effectively no defence to the charge (Public Prosecutor v Low Kok Wai [1988] 3 MLJ 123). [16] Nevertheless, it is an accepted policy of the courts that a plea of guilty should in most cases be treated as a mitigating factor. The reasons for this are obvious. A guilty plea avoids the expense and inconvenience of a trial. A discount for a guilty plea serves as a strong incentive and encourages such pleas. On the other hand, if there is no such incentive, accused persons may then all insist on a trial as they have nothing to lose since the sentence will be the same (Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134; Mohamed Abdullah Ang Swee Kang v Public Prosecutor [1988] 1 MLJ 167; and R v Boyd (1980) 2 Cr App Rep (S) 234 (CA)). In arriving at an appropriate sentence, the weight of the impugned drug is a factor to be considered. As held by Augustine Paul J (as he then was) in PP v Hairul Din Zainal Abidin [2001] 6 CLJ 480: The manner in which public interest is affected by drug abuse has been appropriately dealt with in PP v. Loo Choon Fatt{1976] 1 LNS 102; [1976] 2 MLJ 256. The position is the same, if not worse, today (see Ang Chai Seng v. 64 [81] [82] PP[2000] 1 CLUJ 213). The seriousness of the drug menace must therefore be reflected in the sentence to be passed so that the requirements of public interest can be served effectively. At the same time it must be realised that the proper sentence for each drug offence depends on its own peculiar circumstances. It has been held that the weight of the drugs found on a person plays a significant role in assessing the appropriate sentence (see Zaidon Shariff v. PP[1996] 4 CLJ 441, Later, sitting as a Judge of the Court of Appeal in PP v Ooi Teng Chian [2005] 4 CLJ 557, Augustine Paul JCA reiterated the importance of taking into account the weight of the drugs: It is well established that sentencing in drug offences must reflect the public interest to be served as it is an on-going national problem. The weight of the drugs involved is another factor to be considered. In this case the amount of dangerous drugs involved is very substantial. In such circumstances neither the guilty plea of the accused nor the fact that he is a first offender can be considered too favourably in favour of the accused. In the present case the weight of the impugned drug is much less than in Nor Azri’s case (supra). It is also much less than the weight of the same type of drugs in Pendakwa Raya v Rosli Bakar [2016] 1 LNS 383 where the weight of methamphetamine was 129.8 grams 65 [83] [84] which is approximately three times more than the weight of methamphetamine in the present case. The Court of Appeal in Rosii Bakar’s case had enhanced the sentence of 8 years imprisonment to 12 years after taking into account the weight of the drugs and the prohibition against whipping on the appellant due to his age. This Court agrees with the submission of Learned Counsel for the First Accused that the cases illustrating the trend of sentencing in Nor Azri’s case (supra) must be distinguished on its facts. The cases referred to by Learned Deputy Public Prosecutor are also distinguishable as each case involved more than 1 type of drug. Therefore, after comparing the weight of methamphetamine in the present case (40.75 grams) and those in the cases of Nor Azri (103.35 grams) and Rosli Bakar (129.8 grams) and that the First Accused is not exempted from the punishment of whipping as was in both those cases, this Court finds the sentence of 10 years imprisonment and 10 strokes of whipping to be fair and adequate. 66 [85] The First Accused is hereby sentenced to 10 years imprisonment to commence from the date of arrest that is 21.6.2017 and 10 strokes of whipping. MOHD RADZI BIN ABDUL HAMID JUDICIAL COMMISSIONER HIGH COURT GEORGETOWN PENANG Dated this 5" May 2020 For the Prosecution Tuan Haresh Prakash Deputy Public Prosecutor Penang State Legal Advisor’s office For the Accused Mr. Kumaran a/|l Koothaperumal The Chamber of Kumar & Puven 10150 Pulau Pinang 67