SATISH A/L MOHANADRAN PUBLIC PROSECUTOR

IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: M-05(M)-509-10/2018 BETWEEN SATISH A/L MOHANADRAN - APPELLANT AND PUBLIC PROSECUTOR - RESPONDENT [In the Matter of High Court of Malaya at Melaka Criminal Trial No: 45A-18-06/2016 & 45A-19-06/2016 Between Public Prosecutor And Satish a/l Mohanadran] CORAM: HAS ZANAH MEHAT, JCA LEE HENG CHEONG, JCA AHMAD NASFY YASIN, JCA 1 JUDGMENT OF THE COURT Introduction [1] Satish a/l Mohanadran, the Appellant, was charged before Melaka High Court with the following offences: First Charge “Bahawa pada 08.01.2016 jam lebih kurang 1.30 pagi, di No. 54, Jalan M21, Taman Merdeka, Hang Tuah Jaya, 75350 Melaka di dalam daerah Melaka Tengah, di dalam negeri Melaka, telah mengedar dadah berbahaya iaitu Heroin dan Monoacetylmorphines seberat 24.49 gram. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah s.39B(1)(a) Akta Dadah berbahaya 1952 dan boleh dihukum di bawah s.39B(2) Akta yang sama.” Second Charge “Bahawa pada 08.01.2016 jam lebih kurang 1.30 pagi, di No. 54, Jalan M21, Taman Merdeka, Hang Tuah Jaya,75350 Melaka di dalam daerah Melaka Tengah, di dalam negeri Melaka, telah memiliki dadah berbahaya iaitu Monoacetylorphines dan Heroin seberat 4.22 gram. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah s.12(2) Akta Dadah dan boleh dihukum di bawah s.39A(1) Akta yang sama.” 2 Third Charge “Bahawa pada 08.01.2016 jam lebih kurang 1.30 pagi di No. 54, Jalan M21, Taman Merdeka, Hang Tuah Jaya, 75350 Melaka di dalam daerah Melaka Tengah, di dalam negeri Melaka, telah memiliki dadah yang berbahaya iaitu Methamphetamine seberat 19.64 gram. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah s.12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s.39A (1) Akta yang sama.” Fourth Charge “Bahawa pada 08.01.2016 jam lebih kurang 1.30 pagi, di No. 54, Jalan M21, Taman Merdeka Tengah, di dalam negeri Melaka telah memiliki dadah berbahaya jenis Cannabis seberat 6.41 gram. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah s.6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s.6 Akta yang sama.” [2] At the end of the trial, the appellant was found guilty, convicted and sentenced to all the charges proffered against him the followings- (i) First Charge : Section 39B(2) DDA 1952 sentenced to death. (ii) Second Charge : Section 39A(1) DDA 1952, sentenced to four (4) years 3 imprisonment and 7 strokes of rotan. (iii) Third Charge : Section 39A(1) DDA 1952 sentenced to three (3) years imprisonment and four (4) strokes of rotan. (iv) Fourth Charge : Section 6 DDA 1952 sentenced to fine in the sum of RM20,000.00 in default one (1) year imprisonment and three (3) years imprisonment. The sentence of imprisonment was to run concurrently from the date of arrest. [3] Aggrieved, the appellant appealed to this court against his conviction and sentence. We heard the appeal. After due consideration of the issues raised and the submission made in support thereof, we allowed the appeal. We set aside the convictions and sentence passed by the High Court on all charges and substituted in its place an order for acquittal and discharge on each of the charges. We now give our reasons in allowing the appeal. The Case for The Prosecution [4] The prosecution’s case was well encapsulated in the learned trial judge's grounds. So, we are spared the task of having to repeat them save where necessary. 4 [5] Acting on information received, on 8 January 2016 at about 1.30 am, SP4 (Inspector Yugesh a/l Mathivanan) led a police party comprising 7 other personnel namely Sjn. Zainuddin bin Rahmat (SP6), Kpl. Mohd Herman bin Zaini (SP10), Kpl. Abdul Malik bin Awang Long (SP7), L/Kpl. Mohd Hairyzad bin Ahmad (SP8) and three (3) other detectives. A raid took place at a house having address at No. 54, Jalan M21, Taman Merdeka, Hang Tuah Jaya, 75350, Melaka. [6] Prior to the raid, when SP4 and his team arrived at the location, they conducted surveillance. After about 10 minutes observing and finding that no suspicious individual was seen entering or coming out of the house, SP4 and his team moved into the compound of the said house, while the other two detectives secured the parameters of the house. [7] On arrival at the front of the house, SP4 found the grille and the door were locked. SP4 knocked the door and the appellant answered the door. After introducing himself and his team as police personnel, SP4 directed the appellant to open the door and the grille which he complied. [8] A search was conducted in the living room in the presence of the appellant. It was the prosecution’s version that the appellant was alone in the house and the drugs were found in different parts of the house, namely, on the TV rack, under the sofa in the living room and in the kitchen cabinet. 5 [9] On the TV rack, SP6 found a “zipped bag” with the word “New Tong Chong Goldsmith & Jewellery” (P4A) containing 16 packets of substances suspected to be dangerous drugs (P4(A1-A16). This was later confirmed by the chemist (SP3) to be 24.49 grams of Heroin and monoceytylmorphines, the subject matter of the first charge. [10] SP10 also found on the same TV rack one (1) packet of transparent plastic bag containing a compressed slabs of plant material suspected to be cannabis (Exh. P4A(B)). It was later confirmed to be 6.41 grams of cannabis, the subject matter of the fourth charge. [11] On further search at the living room, SP7 and L/Kpl. 162579 recovered under the sofa, an envelope with the words “Selamat Hari Raya Aidilfitri” containing six (6) plastic packets of substances suspected to be dangerous drugs. It was later confirmed by the chemist (SP3) to contain 19.64 grams of Methamphetamines, the subject matter of the third charge (P4A (C1-C6)). [12] Upon subsequent search in the kitchen cabinet, SP4 and SP8 recovered a plastic container containing two (2) packets of transparent plastic. Inside the same was a substance suspected to be dangerous drugs which later was confirmed by SP3 to contain 4.22 grams of monoacetylmorphines and heroin, the subject matter of the second charge (P4A(D)). [13] According to SP4, he also seized from the appellant two sets of keys of the front door and grille, with the word “Propilot” and “Meiko” respectively. The appellant was then arrested, and the substances 6 suspected to be dangerous drugs and the compressed slabs of plant material suspected to be cannabis were seized. The appellant and the drugs seized were subsequently brought by SP4 to Pejabat Narkotik Melaka Tengah. Upon arrival, SP4 did the marking on all the items seized. He also prepared the search list and then handed them over to the investigation officer, SP11. As regard to the house, evidence subsequently revealed that the said house was rented by the appellant from SP5, the landlord (Sreedran a/l Kannan Chettiar). [14] The said exhibits were later sent to the Chemist, Puan Azmira binti Abd Rahman for analysis (SP3). She confirmed that upon analysis, the substances were heroin, methamphetamines and monoacetylmorphines which are dangerous drug listed under the First Schedule of the Act. Whilst a compressed slab of plant material was cannabis as defined under section 2 of the Act. Chemist Report produced and tendered as Exhibit P9. Finding of The Learned Judge at The End of Prosecution’s Case [15] At the end of the prosecution’s case, the learned trial judge held that the prosecution had succeeded in proving a prima facie case against the appellant. The learned trial judge had accepted the testimony of SP3 on the drugs analysis undertaken by the said witness. The learned trial judge then concluded that there was no defect in SP3's analysis and there was no serious challenges made by the defence on the identity and weight of the impugned drugs. There was also no break in the chain of evidence regarding the 7 impugned drugs which was produced and identified by the prosecution’s witnesses in court. [16] As for the element of possession, the learned trial judge accepted the evidence of SP4, SP6, SP7, SP8, SP9 and SP10, that the appellant was together with his wife and their child at the time the SP4 and team raided the house. The learned trial judge’s finding can be gleaned from Enclosure 32 at page 19. In essence: - “Menurut keterangan pihak pendakwaan pada masa serbuan tiada orang berada dalam rumah tersebut kecuali OKT. Daripada keterangan dan fakta kes menunjukkan kepada mahkamah bahawa OKT berada bersama isteri dan anak kecilnya. Mahkamah mendapati OKT mempunyai kawalan ke atas rumah tersebut. Barang-barang kes yang dikemukakan dalam kes ini adalah barang- barang yang dijumpai di dalam rumah OKT iaitu berikutan serbuan yang dibuat oleh pihak polis pada 8.1.2016 di rumah tersebut. Keterangan menunjukkan bahawa barang-barang kes yang dijumpai di rumah tempat kejadian berada dalam “custody” OKT.” [17] As regards the presence of one Vicky who allegedly occupied the said house, the learned trial judge had made the following findings as at page 20 of the grounds: - “Terdapat keterangan daripada SP 9 (isteri OKT) bahawa terdapat seorang bernama Vicky yang menyewa di rumah tersebut. Walau bagaimanapun, perkara ini tidak dinyatakan oleh tuan rumah tersebut iaitu SP5. SP5 hanya bersetuju pada soalan balas peguambela bahawa terdapat seorang lelaki India berada bersama OKT semasa SP5 berjumpa OKT di rumah tersebut. Merujuk kepada keterangan SP5, 8 hanya OKT sahaja yang memiliki kunci rumah dalam kes ini. Mengenai penyewa lain di rumah tersebut iaitu Vicky yang dikatakan oleh OKT dan isterinya, tiada apa-apa keterangan dibangkitkan oleh pihak pembelaan kepada pihak pendakwaan yang boleh menunjukkan kepada Mahkamah mengenai kehadiran penyewa lain atau apa-apa yang dapat mengaitkan rumah tersebut dengan seorang penyewa (jika ada) selain daripada OKT di mana-mana bahagian rumah terebut. OKT mahupun isterinya tidak menunjukkan di manakah bilik yang dikatakan disewakan kepada orang lain itu. Sekiranya ada, sudah tentu akan ditunjukkan kepada pengadu mahupun mana-mana ahli pasukan serbuan.” [18] The learned trial judge was well aware of the alleged conflicting versions between SP4 and SP9’s testimonies in respect of the place where the drugs were found. In summary, according to SP4, SP6, SP7, SP8, and SP10 the drugs were found in the following places in the house: - (a) SP6 (D/Sjn. Zainuddin bin Rahmat found a zipped bag, with the words “New Tong Goldsmith Jewellery on the TV rack in the hall and inside it was found to contain 16 plastic packets containing substances to be heroin; (b) SP10 (D/Kpl. Mohd Herman bin Zaini) found a transparent plastic packet containing dried vegetable material suspected to be cannabis on top of the TV rack; (c) SP7 (D/Kpl. Abdul Malik bin Awang) and L/Kpl. Hafiz found a green raya packet with the words “Selamat Hari Raya Aidilfitri” printed on it under the sofa in the hall. 9 Upon inspection, the green raya packet contains 6 plastic packets of substances suspected to be syabu; and (d) SP4 together with SP8 (L/Kpl. Mohd Hairyzad bin Ahmad) found a blue plastic container from the kitchen cabinet. In it were 2 plastic packets suspected to contain heroin. Whilst SP9 (Premavathy), the wife of the appellant said in her evidence the followings: - (a) That she was present during the police raid. (b) That nothing incriminating was found in the house. (c) That SP8 brought in the blue plastic container from outside the house. [19] SP9’s testimony contradicted the version of events by the prosecution, as such an impeachment proceeding was commenced against her. In her s.112’s statement, SP9 had stated that on the night in question she was not at the said house with the appellant but was instead at the babysitter’s house. [20] The learned trial judge held that the discrepancy was material and accordingly allowed the prosecution to proceed with the 10 impeachment proceedings against SP9. SP9 explained the discrepancy in this manner: - “Ya, saya nampak statement yang bagi tu memang tak betul, memang tak betul, masa kejadian saya berada di rumah saya sendiri. Saya bagi statement tu terpaksa oleh pihak polis, jika saya tidak bekerjasama dengan pihak polis, dia orang bagi tahu saya, saya dengan anak 11 bulan tu kena tahan juga. So saya terpaksa bagi statement tu, macam sebegitu.” [21] At the end of the prosecution’s case the learned trial judge accepted her explanation and ruled that her credibility was preserved. The impeachment failed. [22] In the upshot, the learned trial judge had made the following findings: At page 21 of the grounds: “Berhubung testimoni saksi-saksi pendakwaan iaitu SP4, SP6, SP7, SP8 dan SP10, mahkamah telah menerima keterangan mereka setelah memberi pertimbangan kepada faktor kredibiliti saksi-saksi tersebut. Daripada keterangan yang ada dalam rekod mahkamah didapati saksi- saksi ini tiada isu atau “bad blood” terhadap OKT, tidak bersengketa dengan OKT mahupun ahli keluarganya dan tiada kepentingan atas keputusan dalam kes ini.” At page 24 of the grounds: “Sehubungan dengan prosiding pencabaran yang telah dijalankan dalam kes ini, mahkamah mendapati kredibiliti isteri adalah terpelihara. Dengan itu, keterangannya boleh diberi pertimbangan sama ada boleh ataupun 11 setakat mana ianya dapat menyokong pembelaan OKT kelak jika pembelaan dipanggil.” [23] However, the learned trial judge was satisfied that the prosecution had proven a prima facie case and that the appellant has custody and control of the drugs, relying on s.37(d) of the Act and that there is ample evidence for the court to draw an inference that the appellant knew the contents in the zipped bag written with the word “New Tong Chong Gold Smith & Jewellery” (Exh. P4A), (1) packet of transparent plastic bag (Exh. P4A(B), an envelope written with the words “Selamat Hari Raya Aidilfitri (Exh. PA (C1-C6)) and (2) packets of transparent plastic (Exh. PA(D)). Hence, the appellant was called upon to enter his defence on the preferred charges. The Appellant’s Defence [24] The appellant elected to give evidence under oath. In his evidence, the appellant stated that he had no knowledge of the drugs and as such could not be said to be in possession of the same. Although the appellant was the tenant, there was another occupier. His name is Vicky. It was the appellant’s version that at the time of the police raid and search, his wife, SP9 was with him and witnessed the search. The appellant contends that the drugs in the blue plastic container were brought in the house by SP8 (Kpl. Hairyzad) and this was confirmed by SP9. 12 Findings of The Learned Judge at The End of the Defence’s Case [25] After considering the defence version, the learned trial judge found that the appellant had not succeeded in raising any reasonable doubt on the prosecution’s case. [26] The material part of the learned trial judge’s finding at the end of the defence case can be gleaned from the following passages- At page 30 of the Grounds: “Mahkamah mendapati kesemua barang-barang kes lain yang merupakan barang-barang kes utama yang ‘implicate’ OKT dalam pertuduhan terhadap OKT gagal dipertikaikan (kecuali bekas biru tersebut) dan OKT gagal menimbulkan keraguan munasabah mengenainya. Mengenai Vicky, tuan rumah iaitu SP5 tidak pernah memaklumkan dia menyewakan rumahnya ataupun mana-mana Bahagian daripada rumahnya dalam kes ini kepada Vicky. Apabila ditanya, SP5 Cuma pernah menyetujui dalam soalan balasan daripada peguambela terpelajar bagi pihak OKT bahawa terdapat seorang lelaki India bersama OKT semasa beliau berjumpa OKT di rumahnya itu. Tiada keterangan yang dikemukakan untuk menunjukkan lelaki tersebut adalah Vicky. Walau bagaimanapun, mahkamah mendapati keterangan isteri OKT gagal menimbulkan keraguan munasabah ke atas kes pendakwaan dengan mengatakan bahawa dadah-dadah dalam kes ini telah dibawa masuk oleh pasukan serbuan daripada luar rumah ke dalam rumah semasa serbuan dibuat di rumah tempat kejadian.” 13 [27] Upon invocation of presumption under section 37(d) at the end of prosecution’s case and section 37(da)(i) and (ii) of the Act at the end of defence case, the learned trial judge had ruled that the appellant failed to rebut both the presumption on possession and trafficking respectively. The appellant was thus convicted and sentenced, as alluded at paragraph two (2) above. The Appeal Before Us [28] Before us, learned counsel for the appellant had canvassed three (3) broad grounds of appeal, namely: (a) That the learned trial judge erred in finding that the prosecution had proven possession; (b) That the learned trial judge erred in requiring the appellant to rebut the presumption under s.37(d) and s.37(da)(i) and (ii); and (c) That learned trial judge failed to sufficiently appreciate the defence of the appellant. OUR FINDINGS First Issue: Possession [29] The main argument before us centred on the issue of possession. It was the contention of the learned counsel for the 14 appellant that the prosecution has not proven that the appellant was in possession of the impugned drugs. The reasons are as follows: - (i) The prosecution has adduced two conflicting versions of evidence; and (ii) The presence of Vicky which the prosecution has not excluded. [30] Learned counsel pointed out that the evidence of SP4 (Insp. Yugesh) compared with that of SP9 (Premavathy) are striking at each other. Both SP4 and SP9 are the prosecution’s witnesses. SP4’s version was that upon a search made, the drugs were found in the following places in the house: - (a) SP6 (D/Sjn. Zainuddin bin Rahmat) found a zipped bag written with words “New Tong Goldsmith and Jewellery” on the TV rack in the hall. Upon inspection, the said zipped bag contains 16 plastic packets of substances suspected to be heroin; (b) SP10 (D/Kpl. Mohd Herman bin Zaini) found a transparent plastic packet containing dried vegetable material suspected to be cannabis on the TV rack; (c) SP7 (D/Kpl. Abdul Malik bin Awang) and L/Kpl. Hafiz found a green Raya packet with the word “Selamat Hari Raya Aidilfitri” printed on it under the sofa in the hall, 15 and inside it were 6 plastic packets of substances suspected to be syabu; and (d) SP4 together with SP8 (L/Kpl. Mohd Hairyzad bin Ahmad) found a blue plastic container from the kitchen cabinet. In it were 2 plastic packets suspected to contain heroin. [31] Subsequently, SP4 and his team did a search on all the three bedrooms and a bathroom on the upper floor of the said house but no drugs were recovered. SP4’s version was supported by SP6, SP7 and SP8 in SP4’s team. [32] However, the above version was contradicted by prosecution’s other witness, namely SP9 (Pramavathy), the wife of the appellant. We found that SP9 had contradicted SP4’s evidence in material aspects, especially the following: - (a) That she was present during the police raid (see pages 210, 251, AR Vol. 2(2). At page 210 Vol. 2(2) SP9 said: “Pada 8.1.2016 midnight 1.30 macam tu saya berada di rumah Taman Merdeka dengan suami dengan anak 11 bulan.” (b) That nothing incriminating was found in the house (see page 252 AR Vol. 2(2)). She said as follows: “Tiada apa-apa barang salah mereka jumpai, Yang Arif.” 16 (c) That SP8 brought in the blue plastic container from outside the house (see page 252-253 AR Vol. 2(2)). She continued as follows: - “Dan tiba-tiba seorang masuk ke dalam rumah, Yang Arif daripada luar dan saya melihat dia ada memegang satu kotak Tupperware, Yang Arif berwarna biru.” [33] By reason of SP9’s evidence, we are mindful to state that the case for the prosecution is completely compromised. From the above extract of SP9’s evidence, it is apparent that SP9 had flatly contradicted the evidence of SP4 on the material particulars. [34] In light of the above contradictions, the prosecution then commenced the impeachment proceedings against SP9. As in her s.112 statement, SP9 stated that on the night in question she was not at the said house with the appellant but was in the house of the babysitter. To reiterate, the learned trial judge found the discrepancy was material and accordingly allowed the prosecution to proceed with the impeachment. SP9 explained the discrepancy in this manner: - “Ya, saya nampak. Statement yang saya bagi tu memang tak betul, memang tak betul, masa kejadian saya berada di rumah saya sendiri. Saya bagi statement tu terpaksa oleh pihak polis, jika saya tidak bekerjasama dengan pihak polis, dia orang bagi tahu saya, saya dengan anak 11 bulan tu kena tahan juga. So, saya terpaksa bagi statement tu, macam sebegitu” (see page 229 Vol. 2(2).” [35] As mentioned earlier, at the end of the prosecution’s case, the learned trial judge accepted her explanation and ruled that her 17 credibility was preserved (see page 367 AR Vol. 2(2)). This was stated by the learned trial judge in her written grounds (see pages 23- 24 Vol. 1)). [36] From the above, it is patently clear that prosecution has adduced two conflicting versions of evidence one striking at each other. We find no reason to disagree with the learned counsel’s submission that the conflicting evidence goes to the heart of the prosecution’s case and on this ground alone it cannot be said that a prima facie has been made out by the prosecution and the case cited, Adzahar bin Ahmad & Anor v PP [1996] 4 MLJ 85 is relevant and on point on the consequences of surviving the impeachment proceedings. For one, the witness’s credibility is preserved and that accordingly that witness’s evidence is credible. For the other, the evidence of the contradictory witness must be evaluated and tested carefully. It certainly gives rise to a doubt on the credibility of the contradictory witness to the extent that that evidence may be rejected in totality on the contradicted particulars. The reason is simple: that the prosecution, having availed the impeachment proceedings and failed cannot thereafter submit on the falsity of the version offered by the witness that survived impeachment. This, in our judgment, should be applied with greater rigour when the conflicting evidence comes from the prosecution’s witness. In the present case, to put it in a less elegant language SP4’s credibility having been compromised, the prosecution’s case is killed by its own witness and in consequence, no reliable evidence that the drugs, which were the subject of the four (4) charges, were found inside the said house. 18 The Presence of Vicky [37] The essence of the defence which had also been put forth during the prosecution’s case was that Vicky was also an occupier in the said house. The investigating officer (SP11) has confirmed that the appellant had informed this fact in his statement during investigations (see pages 318-319 AR Vol. 2 (2)). SP9 also mentioned that Vicky stayed in the house. She testified that his name is Vicknesh but was called Vicky. He rented one of the rooms upstairs for 2-3 weeks prior to the police raid. Vicky got keys to the house. What is said by SP9 in her cross-examination at pages 259-260 AR Vol. 2(2) is reproduced below: - “S : Pn Prema ya, you setuju dengan saya ya dekat rumah tu juga ada kawan-kawan kepada suami boleh masuk dalam rumah tu, setuju? Boleh datang ke rumah. J : Yang Arif ada seorang kawan kepada suami saya menyewa bilik di rumah tu, Yang Arif. S : Menyewa bilik ya? J : Ya. S : Setuju namanya Vicky? J : Ya, nama dia Viknish. Dan Nama panggilan Vicky, Yang Arif. S : Dah berapa lama dia sewa dekat situ? J : Selama 2 hingga 3 minggu, Yang Arif. 19 S : 2 hingga 3 minggu sebelum suami ditangkap, setuju? J : Ya. S : Disewa di bilik mana? J : Bilik tingkat atas, Yang Arif.” [38] In addition, SP9 identified the photograph as Vicky’s room (see page 41 AR Vol. 3). We found that the learned trial judge had failed to recognise that SP9 is a prosecution witness. Further, the landlord had also (SP5) confirmed that he saw a male Indian in the house when he went there to collect rental (see pages 114 AR Vol. 2(1)). In Chan Wei Loon v PP [2021] MLJU 770], the Federal Court ruled as follows- “[93] The evidence laid down above pinpoints the access possibility by the third party to the ground floor. It is trite that the burden is on the prosecution to exclude access of the said ground floor by others to prove that the appellants were exclusively in custody and control of the dangerous drugs and the machines found on the ground floor. The prosecution had failed to establish such evidence when the onus is not on the defence to prove possibility of access by others but on the prosecution to exclude such possibility. The burden of proving its case at every stage lies on the prosecution. The only task of the accused is to raise a reasonable doubt as to the truth of the prosecution’s case [see Mohan Singh a/l Lachman Singh v Public Prosecutor (2002) 3 MLJ 291].” 20 [39] In this regard, we are of the view that the learned trial judge failed to appreciate that the prosecution had failed to exclude Vicky to the drugs which according to SP4 were found in the living room and the kitchen. As such, to our mind, failure on the part of the trial judge to consider the foregoing unchallenged evidence amounted to a serious misdirection warranting appellate intervention. Issue 2 - The Wrongful Use of the Presumption [40] As borne out by the passage at page 22 AR Vol. 1 in the grounds of judgment, the learned trial judge had ruled that there was actual possession, having discussed custody and knowledge. However, on the same breath at the following paragraph at page 31 AR Vol. 1, the learned trial judge invoked the presumption of presumed knowledge and possession under s.37(d) of the Act. In our view, the approach taken by the learned trial judge is clearly erroneous. Indeed, the appellant is prejudiced when the learned trial judge after having ruled the actual possession, required the appellant to rebut the presumption under s.37(d) of the Act. In this regard, it is our considered view that the learned trial judge had failed to recognise that the law does not allow a case of actual possession and at the same time relied on presumed possession. (see Seyedalireza Seyedhedayatollah Enteshamiardestani v Public Prosecutor [2014] 6 MLJ 408, Mohamad Hanafi bin Mohamad Hashim v PP [2016] 3 MLJ 723). [41] Thereafter, the learned trial judge in respect to the first charge of 24.49 grams had invoked presumptions under s.37(da)(i) and (iii) of the Act. Again, this is a most serious error. In short, the learned trial 21 judge had adverted to both presumptions under s.37(d) and (da) of the Act without electing whether the appellant was found to be in actual possession of the drugs and was presumed to be trafficking under s.37(da) or whether the appellant was presumed to be in possession of the drugs under S.37(d) and found to be trafficking under s.37(da) of the Act. It is most undesirable as it reflects the uncertainty on the part of the trial judge in making a finding (see Public Prosecutor v Chia Leong Foo [2000] 6 MLJ705). Issue 3 - Failure to Appreciate the Defence of the Appellant [42] It is trite that under s.182A of the Criminal Procedure Code, the judge must consider all the evidence presented at trial. In the instant case the appellant had called the following defence witnesses: - (i) Rosini a/p Vasigaran (SD2); (ii) S.Menaga s/p Subramaniam (SP3); dan (iii) Jeeva a/l P.Narayanan SD4. [43] Upon perusal of the note of evidence, we found that the following evidence to be material: - (a) That on 8.1.2016, SD2 received a call from the appellant to go to the Melaka Tengah Police Station to pick up his wife and child (see page 402 AR Vol. 2(3)). (b) SD2 said at page 408 AR Vol. 2(3) that she heard a policeman telling SP9 that if someone takes statement 22 from her to say she had a fight with her husband and was staying in SD2’s house. (c) SD3 confirmed that she was the babysitter and on 8.1.2016 SP9 and her child were staying in their own house (see page 417 AR Vol. 2(3)). (d) SD4 at page 429 AR Vol. 2(3) confirmed SD2’s evidence that they went to the police station to bring home SP9 and her child. At page 430 AR Vol. 2(3) she further said on 8.1.2016, SP9 and her child were staying with the appellant. [44] In the upshot, we found that the above material evidence was never been considered by the learned trial judge. If considered, it will definitely cast a doubt on the prosecution’s version that the appellant was alone in the house and the drugs were found inside the house. Their evidence will enhance the credibility of both SP9 and the appellant. Thus, in our view this is a serious omission which has resulted in a serious miscarriage of justice warranting appellate intervention (see Olier Shekh Awoyal Shekh v PR [2017] 2 CLJ 141, Zulkefly bin Had v PR [2014] 6 CLJ 64). With respect, we found that the learned trial judge had breached the statutory provision of s.182A of the CPC and the fundamental legal principle which formed the cornerstone of criminal justice trial that the defence of an accused must be fairly and justly considered. 23 Conclusion [45] Upon careful perusal of the record of appeal, the evidence and the judgment under appeal, we find the convictions recorded against the appellant on all the four charges are not safe. It was for all reasons aforesaid that we unanimously allowed the appellant’s appeals. Accordingly, the conviction and sentence of all the four (4) charges are set aside and the appellant is acquitted and discharged on all the four charges. Dated: 15 February 2022 -Sgd- AHMAD NASFY YASIN Judge Court of Appeal Malaysia Putrajaya Counsel/Solicitors For the Appellant: Hisyam Teh Poh Teik Low Wei Lok (Messrs. Hisyam Teh) For the Respondent: Nurul Farhana binti Khalid Deputy Public Prosecutor (Attorney General’s Chambers) 24