DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA

(BIDANG KUASA RAYUAN)

RAYUAN JENAYAH NO : T-05(M)-448-12/2016

ANTARA

WAN AMIRUL MUBIN BIN WAN KAMARUDDIN … PERAYU

DAN

PENDAKWA RAYA … RESPONDEN

[Dalam Perkara Mahkamah Tinggi Malaya Di Kuala Terengganu Perbicaraan Jenayah No: 45A-09-09/2014 & 45A-10-09/2014]

Antara

Pendakwa Raya

Dan

Wan Amirul Mubin Bin Wan Kamaruddin]

CORAM

AHMADI BIN HAJI ASNAWI, JCA IDRUS BIN HARUN, JCA

KAMARDIN BIN HASHIM, JCA

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JUDGMENT OF THE COURT

[1] The appellant in this appeal was charged in the High Court on 2

counts of trafficking in and possession of dangerous drugs under sections

39B(1)(a) and 12(2) of the Dangerous Drugs Act 1952 [Act 234]

respectively in the following terms:

First Charge

“Bahawa kamu pada 20.6.2014, jam lebih kurang 9.00 malam bertempat

di L15-1 Lt 3371 Jalan Sekolah Intan Zaharah, Kampung Balai Besar di

dalam daerah Dungun, di dalam Negeri Terengganu, telah mengedar

dadah berbahaya iaitu Heroin seberat 64.59 gram dan dengan itu kamu

telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah

Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang

sama”.

Second Charge

“Bahawa kamu pada 20.6.2014, jam lebih kurang 9.00 malam bertempat

di L15-1 Lt 3371 Jalan Sekolah Intan Zaharah, Kampung Balai Besar di

dalam daerah Dungun, di dalam Negeri Terengganu, telah ada dalam

kawalan kamu dadah berbahaya iaitu Heroin seberat 9.08 gram dan

dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen

12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen

39(A)(2) Akta yang sama”.

[2] The appellant was convicted on both charges. On the first charge,

the appellant was sentenced to death whereas on the second charge, the

appellant was sentenced to 10 years imprisonment from the date of

conviction. The learned judge, in respect of the second charge however,

did not impose the mandatory whipping of not less than 10 strokes

prescribed by section 39A(2) of Act 234 stating that the appellant, had

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already been sentenced to death on the first charge. We begin, in

considering the appeal by the appellant, by stating relevantly the following

evidence that we have garnered from, and which appear clearly in the

notes of evidence. It is the prosecution’s narrative that on 20 June 2014

circa 9 p.m., acting on an information in connection with dangerous drug

activity, Sub-Inspector Ismail bin Omar (PW4) with a team of police

personnel carried out a raid on a house at L15-1, Lt 3371, Jalan Sekolah

Intan Zaharah, Kampung Balai Besar, Dungun in the state of Terengganu.

Before entering the compound of the house, PW4 and his team first

conducted an observation on the house from which PW4 could see the

light which shined the house. PW4 suspected that there was someone in

the house after which PW4 proceeded to the house through the gate

which was not locked and stopped in front of the door. When PW4 heard

the occupants of the house talking, he thereupon knocked the door. A

Malay male, who was during the trial identified as the appellant, opened

the naco louvre window of the front room. PW4 immediately identified

himself as a police officer and instructed the appellant to open the door.

The appellant initially refused to open the door but after being told to do

so by PW4 several times, the appellant then opened the door. Upon

entering the house, PW4 took the appellant to the same front room, which

was the first bedroom, where he could see a woman, Anisa Suhaila binti

Moktar (PW7) with a child who was about 1 year old in the said room.

[3] PW4 later learned that PW7 was the appellant’s wife.

Subsequently, a body search was conducted on the appellant but nothing

incriminating was found on his body. PW4 then searched the room from

which a bag containing cash of RM6000.00 was found by the side of a

dressing table. A further search in the same room by PW4 which was

witnessed by the appellant did not yield a discovery of anything

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incriminating. Neither did PW4 find anything incriminating in the second

room of the house when a search was subsequently conducted there.

[4] PW4, accompanied by Lance Corporal Faizal Amri bin Zakaria

(PW5), and the rest of the raiding team next proceeded to the third room

which was closed but the door was not locked from inside. Both the

appellant and PW7 were also taken to the said room. PW4 observed that

there were clothes which were hung on a rope with one end connected to

a wall and the other to a rack used for keeping things, some clothes which

were folded on the floor and a pile of clothes on the floor near the wall.

Underneath the said pile of clothes, PW4 found a newspaper package and

when he asked the appellant about the content of the said package, it was

met with silence but the appellant looked shocked, pale and nervous.

PW4 questioned both the appellant and PW7 about the package but the

latter did not admit it was hers. The appellant on the contrary, at first kept

quite but upon being questioned by PW4 a few times, finally nodded his

head. Witnessed by PW5 and in the presence of the appellant, PW4

proceeded to open the package from which he found 10 transparent

plastic bottles with yellow caps each containing white powdery substances

suspected to be dangerous drug [Exhibits P9B(1-10) and P9C]. These

exhibits were seized by PW4. The appellant, after being handcuffed,

together with PW7, were taken to the first room. According to PW4, he

suspected that there were other incriminating things kept in the house.

[5] PW4 subsequently administered a caution under section 37A(1)(b)

of Act 234 (now section 37B(1)(b)) on the appellant. PW4 read out the

caution from a piece of paper (Exhibit P29) which he kept in his wallet

after which he proceeded to question the appellant. The questions and

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answers thereto were recorded by PW4 in a black note book (Exhibit P30)

found on the dressing table and they are reproduced below –

“Pada 20.6.2014 lebih kurang 2125hrs di bilik pertama di alamat L15-1

LT 3371 Jalan Sekolah Intan Zaharah, Kampung Balai Besar saya

menyoal Wan Amirul.

S : Adakah awak faham dengan kata-kata amaran yang telah saya

bacakan tadi?

J : (OKT berdiam diri sahaja).

S : Adakah awak ada menyimpan/menyembunyikan apa-apa barang

salah?

J : OKT diam dan hanya (mengangguk).

S : Bolehkah awak menunjukkan tempat di mana barang itu

disembunyikan?

J : Ya

S : Di mana barang itu?

J : Di belakang rumah.

S : Bolehkah awak membawa saya ke tempat tersebut?

J : Boleh.

S : Di mana tempat sebenar barang tersebut disembunyikan?

J : Di bawah batu besar.

(Setelah saya menyuluh dengan menggunakan lampu suluh ke arah

seketul batu dan bertanya ‘adakah batu ini’ Perayu terus menunjuk

dengan menggunakan jari telunjuk tangan kanan ke arah batu

tersebut).

S : (Setelah saya mengalihkan batu tersebut saya bertanya lagi kepada

OKT di mana barang tersebut?)

J : OKT menunjuk yang barang tersebut ditanam di dalam tin di dalam

tanah.

(Setelah saya mengais tanah di tempat tersebut saya nampak satu tin

yang bertudung. Setelah itu saya bertanya soalan lagi.)

S : Di manakah barang tersebut?

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J : Barang tersebut berada di dalam tin dibungkus dengan plastik.

(Setelah saya membuka tudung tin saya dapati terdapat satu

bungkusan plastik dan saya terus mengangkat tin tersebut)

S : Adakah dadah yang awak maksudkan ada di dalam tin/plastik ini?

J : Ya.

(Saya terus mengambil bungkusan yang terdapat dalam plastik tersebut

satu demi satu dan seterusnya mengangkat plastik tersebut keluar

dengan diperhatikan oleh Wan Amirul dan 2 anggota saya Sudin dan

Aper).

S : Adakah dadah berada dalam bungkusan tersebut?

J : Ya.

(Saya terus membuka bungkusan dan menunjukkan dadah kepada

Wan Amirul).

S : Dadah ini milik siapa?

J : Saya punya.

S : Siapa yang simpan/tanam dadah ini?

J : Saya.

S : Adakah kamu bercakap benar?

J : Ya.

tt tt

(Wan Amirul Mubin (SI Ismail Omar RF 94316)”

Bin Wan Kamaruddin)

The appellant signed Exhibit P30 after he was requested to do so by PW4.

[6] Based on the questions, and the information provided by the

appellant, PW4 was led to the back of the house by the appellant where

he pointed to a rock which PW4 whereupon removed and upon removing

the said rock, PW4 found the impugned drug hidden in a biscuit tin buried

in the ground. The biscuit tin was found to contain a plastic package

(Exhibit P17) from which plastic packets [Exhibits P18 (1-7)] tied with a

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rubber band were recovered. Each plastic packet had 10 plastic bottles

with yellow caps containing white powdery substances suspected to be

dangerous drug. The number of the plastic bottles in the 7 plastic packets

seized by PW4 in total was 70 [Exhibit P10B (1-70)]. It is noteworthy that

PW7 told PW4 that she had no knowledge about the impugned drug.

[7] PW4 seized all the incriminating exhibits and handed them over to

Inspector Kasevan a/l Chandra, (PW1), the investigating officer. The

evidence of the chemist, Zuzilawati binti Hassim (PW3), which was hardly

challenged by the defence, confirmed conclusively that on analysis the

white powdery substances were heroin with the net weight of 64.59

grammes in respect of the 70 plastic bottles [Exhibits P10B)(1-70) and

P10C], the subject matter of the first charge, and 9.08 grammes in respect

of the 10 plastic bottles [Exhibits P9B(1-10) and P9C], the subject matter

of the second charge. Heroin therefore, according to PW3 and based on

the chemist report prepared by her (Exhibit P28), is for the time being

comprised in the First Schedule to Act 234 and hence dangerous drug as

defined in section 2 thereof. It was also in the prosecution evidence that

the house was rented by the appellant from Ahmad Abadi bin Mohd Ali

(PW9), the owner thereof. According to PW9, he rented the house to the

appellant in March 2014 and the house rental was handled by his younger

brother Jailani bin Mohd Ali (PW12). PW12 in turn testified that he

cleaned the house and removed all household items from the house

before it was rented to the appellant. He gave the key to one Mokhtar

Awang, PW7’s father, in March 2017 who rented the house for the

appellant and PW7. PW12 further testified that the monthly rental fee was

RM300.00.

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[8] At the close of case for the prosecution, the learned judge accepted

the evidence of PW3 that the white powdery substances which she had

analysed were heroin with the net weight as specified in both charges.

The learned judge was also satisfied that the chain of evidence in respect

of the proscribed drugs was unbroken right from the point of time it was

found at the location as described above to the time it was sent to PW3

for analysis and thereafter returned to PW12 where it was kept in safe

custody until the same was produced as evidence in the court below

during the trial. The learned judge also accepted that the house was

rented by the appellant from PW9 through PW12. From the evidence of

PW9 and PW12, His Lordship found that the house key was given to one

Mokthar Awang, PW7’s father. Before the appellant and PW7 moved into

the house, it was first cleaned up and cleared of any things which

belonged to the previous tenant. Thus, according to the learned judge,

anything found in the house belonged to the appellant and PW7. His

Lordship found that the appellant had knowledge, custody and control of

the impugned drug found in the third room of the house. As regards the

drug found at the back of the house, the learned judge accepted the

evidence adduced by the prosecution that the appellant led PW4 and PW5

to the discovery of the drug in question holding that sections 27 and 8 of

the Evidence Act 1950 applied. Under the circumstances, the learned

judge made an affirmative finding that the appellant had actual

acknowledge, control and custody of the drug which was hidden in the

biscuit tin and buried in the ground which in turn was covered with the

rock. In view of the substantial quantity of the impugned drug contained

in the 70 plastic bottles, a reasonable inference could be drawn therefrom

that the drug was not meant for personal consumption but was intended

for sale and trafficking to a third party. Accordingly, after undertaking a

maximum evaluation of the evidence adduced by the prosecution, the

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learned judge was satisfied on a prima facie basis, that each and every

essential element of the offence under section 39B(1)(a) of Act 234 and

under section 12(2) of the same Act had been proved. The learned judge

also found that the presumption under section 37(da) of Act 234 applied

to the appellant in respect of the first charge.

[9] The appellant tendered himself as a witness. Save for the appellant,

no other witnesses were called by the defence. His defence in essence

was that, at the time of the raid at his house, he was at home with PW7

and his eight months old child. The appellant rented the house 3 to 4

months before he was arrested. The house had a fence. The appellant

denied that the drugs found in the third bedroom and at the back of his

house buried in the ground belonged to him or to his wife, PW7. He added

that he did not know where did the drugs come from. The appellant also

denied that the drug found at the back of the house was based on the

information that he had given to the police.

[10] The learned judge found that the defence was one of a bare denial

unsupported by any evidence. From the defence evidence, it was clear

that the house was occupied by the appellant, PW7 and their child at the

material time. He kept the key to the house and paid rental to the owner

through his father in law. The learned judge also considered the

appellant’s testimony that no one, not even his neighbours came to the

house and hence ruled out any probability of any one coming to the house

and kept the drugs at the house. It follows therefore that the drugs found

at the appellant’s house belonged to him. The learned judge was satisfied

that the appellant failed to rebut the presumption under section 37(da) of

Act 234 on the balanced of probabilities and to raise a reasonable doubt

in the prosecution’s case. The appellant was accordingly convicted on

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both charges and sentenced to death on the first charge and to 10 years

imprisonment on the second charge.

[11] Now we turn to consider the appeal. Before we examine the rival

arguments urged on behalf of the parties, it would be apposite to start off

by dealing with the question of proof. For this purpose, suffice for us to

state that there are 3 requisite elements of the offence of trafficking of

dangerous drug described in the first charge which the prosecution is

required to prove and these are –

a. the appellant was in possession of the dangerous drug with the

net weight as specified in the charge;

b. the appellant at the relevant time and date and the place in

question had trafficked in the said dangerous drug; and

c. the drug specified in the first charge is for the time being

comprised in the First Schedule to Act 234 and therefore is

dangerous drug as defined in section 2 of the same Act.

The charge under section 12(2) of Act 234 for the offence of possession

of the dangerous drug would require the prosecution to prove the element

of possession of the said dangerous drug at the material time and that the

same is for the time being comprised in the First Schedule to Act 234 as

defined in section 2 thereof with the net weight specified in the second

charge.

[13] At this stage, we will allude briefly to the main points in the

appellant’s appeal before us in questioning the decision of the learned

judge. The first point taken in the appeal concerns the contention that so

far as the evidence shows, the prosecution had failed to prove that the

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appellant was in possession of the impugned drug at the relevant time, let

alone trafficking in the said drug. This issue is common to both charges.

Secondly, as regards the first charge, it was strenuously contended on

behalf of the appellant that the information leading to the discovery of the

impugned drug pursuant to section 27 of the Evidence Act 1950 was

inadmissible.

[14] It would be convenient to deal with these issues together. One thing

is extremely clear, that is that, the prosecution led evidence through PW7

that both the appellant and PW7 lived at the house in question at the time

of the raid. The evidence of PW9 who was the owner of the house and

his younger brother PW12, confirmed that the key to the house was given

to the appellant through PW7’s father around the month of March 2014.

The house was rented by the appellant. This is the uncontroverted fact

as the appellant had admitted it in his evidence. Both PW9 and PW12

testified that they had no knowledge about the drugs found by the police

inside and outside the house which formed the subject matter of both

charges. The appellant’s wife, PW7, also denied any knowledge about

the drugs. The house which the appellant occupied was fenced up and in

his evidence the appellant testified that he kept the house key with him

and that no one including his neighbours came to the house within the

perimeter fence. This evidence, in our opinion, demonstrates the clear

fact that the appellant was in control of the house, and the site behind the

house where the drugs were found. When this is established, prima facie,

the appellant was undoubtedly in control of the impugned drugs. This

proposition was authoritatively explained in R v Woodman [1974] 2 All

ER 955 in which Widgery CJ said –

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“We have formed the view without difficulty that the recorder was

perfectly entitled to do what he did, that there was ample evidence that

English China Clays were in control of the site and had taken

considerable steps to exclude trespassers as demonstrating the fact

that they were in control of the site, and we think that in ordinary and

straightforward cases if it is once established that a particular person

is in control of a site such as this, then prima facie he is in control of

articles which are on the site”

[15] The learned judge in his decision invoked the presumption of

trafficking under section 37(da) of Act 234. It is, we apprehend, the basic

requirement of the law that, any reliance on the presumption under section

37(da) would necessitate the prosecution to prove that the appellant had

possession of the impugned drug. That is the essential element which

must be proved by the prosecution and the trial judge on his part is

required, as evident by the use of the word ‘found’ in the opening phrase

of section 37(da), to make an express affirmative finding of the basic or

primary facts with regard to the possession of the impugned drug so that

when this is fulfilled, the proof of possession would consequently give rise

to the presumption of trafficking, [Muhammed bin Hassan v Public

Prosecutor [1998] 2 MLJ 273 at pages 288 and 289].

[16] The law must now be taken as settled that to prove possession of

the drug in question, the prosecution must inevitably prove that the

appellant knew the nature of the drug he possessed, he had power of

disposal thereof and was conscious of the same. The law of possession

was lucidly explained by the Federal Court in the case of PP v Denish

Madhavan [2009] 2 CLJ 209. Abdul Aziz Mohamad FCJ there said –

13

“[15] The question of others having access to the respondent’s room

was considered by the learned trial judge both after the close of the

case for the prosecution and in evaluating the case after hearing the

defence. The learned trial judge said that the matter of access by

others was “to negative the proof of exclusive possession”. Before us

the respondent’s counsel was candid enough as to what the

respondent’s aim was in seeking to show the probability of access by

others as a matter negativing exclusive possessions: it was to assert

that the cannabis in the three bags under the bed could have been

concealed or planted there by these other persons. The learned trial

judge did not allow himself to be distracted by this suggestion of

access by others from the evidence that he found to exist of “exclusive”

possession of the cannabis on the part of the respondent. He did,

nevertheless, make findings on the evidence relating to access by

others. He found on the evidence that Boy had already ceased living

at the house when it was raided. As regards Razali, he found there

was no evidence that Razali had a set of the keys of the house

although there was evidence that Razali had been entering the house

to care for a hamster that was in a cage in the common or guest area.

[16] Before proceeding to consider the reasons for the Court of

Appeal’s decision, we will say a few words about “exclusive”

possession. It is inappropriate to speak of possession of an article in

criminal law as exclusive possession. One is, either in possession or

not in possession, although one could be in possession jointly with

another or others. To say that the prosecution of a drug case fails

because there has been no proof of exclusive possession is apt to

convey the wrong impression that it is only in cases where possession

is entirely with one person, - that is, “exclusive” – that a conviction is

possible. When the learned trial judge said “The accused sought to

negative the proof of exclusive possessions…”, we take it that he

meant no more than that the respondent sought to show that he was

not in possession of the drugs because he had no knowledge of their

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existence and that the drugs could have been placed in his bags by

some other person or persons.

[17] The idea of exclusively features in the meaning of “possessions”

in criminal law as one of the elements necessary to constitute

possession. As Taylor J said in Leow Nghee Lim v. Reg. [1955] 1 LNS

53 :

…It is often said that ‘possession must be exclusive’. This is

ambiguous. Possessions need not be exclusive to the accused.

Two or more persons may be in joint possession of chattels,

whether innocent or contraband. The exclusive element of

possession means that the possessor or possessors have the

power to exclude other persons from enjoyment of the property.

Custody likewise may be sole or joint and it has the same element

of excluding others. The main distinction between custody and

possession is that a custodian has not the power of disposal. The

statement that ‘possessions must be exclusive’ is often due to

confusion of the fact to be proved with the evidence by which it is

to be proved. It is essential to keep this distinction clearly in mind,

especially when applying presumptions.

[18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS

17, said that “possession” for the purpose 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 possessions 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

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when the circumstances are such that he may be presumed to

intend to do so in case or 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.”

[17] Having considered the evidence, and mindful of the above principle

relating to the law of possession, we find no difficulty whatsoever in holding

that the element of knowledge in respect of the illicit drug which is

necessary to show possession of the same, had been established by the

combined evidence of the appellant’s information and his conduct which

led distinctly to the discovery of the drug concealed in the biscuit tin and

buried in the ground at the back of his house with the surface covered by

earth and the rock. It is abundantly clear that this information, had been

proved pursuant to section 27 of the Evidence Act 1950 and is admissible

since the drug that was recovered was in consequence of the information

given by the appellant to PW4. We now quote from the Evidence Act 1950

section 27 –

“How much of information received from accused may be proud

27. (1) When any fact is deposed to as discovered in consequence of

information received from a person accused of any offence in the custody of a

police officer, so much of that information, whether the information amounts to

a confession or not, as relates distinctly to the fact thereby discovered may be

proved.”

[18] We are mindful of the fact that the information was obtained after the

appellant was cautioned pursuant to section 37A(1)(b) of Act 234.

However, we consider the appellant’s information that the drug was at the

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back of the house and that he subsequently led the police to the exact spot

where the drug was found as an information which falls squarely under

section 27 of the Evidence Act 1950. Such information, in order to be

admissible in evidence, does not require the prosecution to prove that the

information was voluntary, hence it is not necessary to conduct a trial

within a trial to determine the voluntariness thereof. To support this

proposition, we refer to the case of Siew Yoke Keong v PP [2013] 4 CLJ

149 in which the Federal Court at page 167 paragraph [28] clearly stated

that for such information to be admissible in evidence, there is no duty on

the prosecution to prove the voluntariness of the information, hence it is

not necessary to conduct a trial within a trial to determine the voluntariness

of the information. The essential requirement is that the appellant gave

the discovery information to PW4 and in this case we are satisfied that he

actually did.

[19] The other requirement turns on the credibility of the witness namely

PW4 who gave the evidence in connection with the discovery information

[Krishna Rao Gurumurthi & Anor v PP & Another Appeal [2007] 4 CLJ

643]. It is apparent from the learned judge’s comprehensive judgement

that His Lordship had directed himself on the issue of credibility of PW4

and accepted his evidence that the discovery information was in fact given

by the appellant to him. The information was also accurate. The learned

judge considered that the appellant led PW4 to and pointed the exact spot

where the drug was found. As earlier stated, the drug was concealed in

the biscuit tin and buried in the ground with the surface covered with earth

and the rock. It would be useful to remember that the initial discovery of

the drug in the third bedroom did not lead to the discovery of the drug at

the back of the house. In fact the learned judge observed correctly that

the police team did not know about the drug hidden at the back of the

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house. It was only upon the information provided by the appellant that

PW4 found the drug in question. It was so hidden that it required some

efforts on the part of the police team before the drug was found. The

learned judge considered and accepted the evidence of PW4 that he did

not have initial information in respect of the site where the drug was

hidden.

[20] Moreover, the manner in which the drug was hidden in no way

leaves any margin of doubt in our minds that the appellant knew about the

drug and where it was kept. It could not have been found without the

discovery information and the conduct of the appellant in taking PW4 and

pointing to the exact location where the drug was finally found. The court

in the case of Faisal Abd Aziz v PP [2011] 9 CLJ 285 on this issue had

this to say –

“A quick look at the grounds of judgment, will indicate that the trial

judge had in fact made an affirmative finding of possession of the

drugs by the appellant. In his judgment, the judge (at p.55 of the

record of appeal) wrote:

It is also pertinent to stress that the manner of the packaging in

small packets and the circumstances relating to the accused

conduct of handing the two packets P8A and P8B and the act of

pointing and picking the Old Spice bag P9 and handing it to SP3

to my mind not only established custody and control over P8A and

P8B and P9 but also knowledge as to the contents of the cannabis

in P8A and P8B and the cannabis content of P9.

The manner and the place where P9 was found namely concealed

in the bushes clearly establishes that it was only the accused who

knew of its placement and concealment. It cannot have been

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found without the accused conduct of pointing to P9 and the plastic

packets P8A and P8B was taken from the same place where P9

was found.

Based on the available evidence, we find that the learned trial judge

has not erred in law or on facts in making such a finding.”

[21] That brings us to the prosecution’s argument on the relevancy of the

appellant’s conduct in leading PW4 and other police personnel to the site

where the drug was found. The evidence of PW4 that the appellant led

the police personnel to and pointed out the exact spot where the drug was

found hidden is in our judgment relevant and admissible as conduct under

section 8(2) of the Evidence Act 1950. Such evidence of conduct is

admissible irrespective of whether the appellant’s statement to PW4 which

preceded such conduct falls within the purview of section 27 of the same

Act. This was the approach adopted by the Federal Court in Siew Yoke

Keong v PP, supra, when it held as follows:

“[29] In addition, it must be added that the evidence of Siew leading

PW6 and the police team to the first house and pointing out the place

where the bunch of eight keys was found, and later pointing out the

place where the key to the safe was found would also be relevant and

admissible as conduct under s. 8 of the Evidence Act. In this regard

in Prakash Chand v State AIR [1979] SC 400, the Supreme Court of

India said:

For example, the evidence of circumstances, simpliciter, that an

accused person led a police officer and pointed out the place where

stolen articles or weapons which might have been used in the

commission of the offence were found hidden, would be admissible

as conduct, under section 8 of the Evidence Act, irrespective of

whether any information contemporaneously with or antecedent to

19

any such conduct falls within the purview of section 27 of the

Evidence Act...”

[22] At the close of case for the prosecution, the learned judge admitted

the information in evidence pursuant to section 27 of the Evidence Act

1950 after His Lordship was satisfied that the conditions in which such

information could be admitted had been fulfilled–

a. the discovery of the drug was in consequence of the

discovery information supplied by the appellant ;

b. the appellant at the relevant time was under police detention;

c. the drug recovered was in fact hidden from the public view;

d. PW4 did not have any prior knowledge of the fact that the drug was

concealed at the place in question; and

e. the information was given by the appellant and recorded in Exhibit

P30 by PW4.

[23] It is an important point to emphasize that the learned judge only

relied on the evidence relating to the relevant information recorded in

Exhibit P30 that led distinctly to the discovery of the drug. His Lordship

excluded other words which formed part of the information provided by the

appellant to PW4. To be specific the learned judge did not consider the

appellant’s admission as shown below–

“S: Dadah ini milik siapa?

J: Saya punya.

S: Siapa yang simpan/ tanam dadah ini?

J: Saya”.

20

It might be apposite to be reminded of the obvious, that section 27 of the

Evidence Act 1950 on this aspect only accepts so much of the information

as relates distinctly to the fact thereby discovered. The well-establised

principal which governs the admissibility of an information under section

27 is that any statement which is prejudicial to the person from whom such

information is received is inadmissible and if it is admitted, it ought to be

expunged [PP v Lim Hock Boon [2009] 3 CLJ 430]. It is plain that the

learned judge was entirely correct in admitting the information in evidence

pursuant to section 27 of the Evidence Act 1950 and in concluding that

such information and conduct of the appellant manifestly showed

knowledge of the drug concealed at the site in question. Accordingly, we

cannot accede to the argument urged for the appellant that the information

is not admissible.

[24] We would once again allude in greater detail to the evidence of PW4

which described the manner in which the drug was carefully concealed in

order to avoid detection. The site in question which was at the back of the

house and near the rear fence was covered with the earth and the rock.

When PW4 removed the rock using a steel digger (PW4 called ‘cok’ in the

Malay language) which he found at the back of the house, he noticed that

the spot was covered with earth. He used the steel digger to dig and

remove the earth until he could see the cover of the biscuit tin. PW4’s

evidence was supported by his officer PW5. In our judgment, the

cumulative effect of the combined evidence of the manner in which the

drug was concealed at the back of the house, coupled with the fact that he

was the tenant thereof and PW7’s clear denial of any knowledge about the

drug, clearly showed that there was a strong connection between the

appellant and the place chosen as well as the drug that was found. An

inference which could be drawn, without question, could significantly go

21

beyond a mere inference of knowledge. We would say without any

hesitation that an inference could also convincingly be made that

considering the circumstances of this case, the appellant was in control of

the drug and was so situated with respect to it that he had the power to

deal with it as owner that would exclude others from enjoyment of the

same and was thus in possession of the said drug [PP v Denish

Madhavan, supra]. It clearly evinced the appellant’s intention to conceal

the drug in order to avoid detection by the relevant enforcement

authorities.

[25] Therefore, His Lordship’s conclusion that the appellant had

possession of the drug in the first charge could not be faulted and his

inevitable invocation of the presumption of trafficking in the illicit drug

under section 37(da) of Act 234 was impeccable. The weight and the

nature of the drug which was proven to be heroin as specified in the first

charge and proved by the prosecution during the trial through the

conclusive evidence of PW3 which we have considered very early in our

judgement, supported the invocation of the presumption. We would in

addition hold that the learned judge was also correct in taking into account

the substantial quantity of the drug contained in the 70 plastic bottles which

justified His Lordship’s inference that the said drug was not meant for the

appellant’s personal consumption. In our judgment, the quantity of the

drug was much larger than was likely needed for the appellant’s

consumption. He could not have such a quantity in his possession

carefully kept in 70 plastic bottles, concealed in the biscuit tin, buried in

the ground and covered with the rock save for the obvious purpose of

trafficking it to others known or unknown.

22

[26] We turn to the second charge. The question immediately arises is

whether the learned judge had undertaken a full appreciation of the

evidence. We have to remember that the prosecution had to prove the

essential element of possession of the drug at the place, time and date as

specified in the second charge. It is abundantly clear that the prosecution

had adduced overwhelming evidence to show that the appellant was in

possession of the drug found in the third bedroom at the appellant’s rented

premises. It is apparent from the evidence that the house from which the

drug was found was occupied by the appellant, PW7 and their eight month

old child. At the time of the raid, only the appellant, PW7 and their child

were in the house. The house was locked and the door was opened by

the appellant at the relevant time. The prosecution also led evidence

through PW9 and PW12 that the key to the house was handed over to

PW7’s father and that the house was cleaned and cleared of household

items of the previous tenant before the key was given to PW7’s father.

Both PW9 and PW12 in their evidence testified that they had never seen

the incriminating exhibits found in the house. Moreover, PW7 in her

testimony confirmed that the drug did not belong to her and she had no

knowledge about the same. The sum total of the above evidence clearly

established that the appellant knew about the drug and was therefore

conscious of his possession of the same. The appellant’s defence which

is in the nature of a bare denial failed to rebut the above evidence.

[27] The defence adopted by the appellant does not affect nor dislodge

the prosecution evidence that the appellant had possession of the

impugned drug. Instead, the appellant’s testimony had further

strengthened the prosecution’s case against him. In his defence, the

appellant testified that he paid rentals for the house to his father in law to

be paid to the landlord. He also admitted that the house key was kept by

23

him and that there was only one key which he never gave to other persons

except his wife. Cross-examined by the learned Deputy Public

Prosecutor, the appellant agreed that he had control and care of the

house. The appellant also told the court that no other persons, including

his neighbours came to the house. It is clear to us therefore that anything

found in the house belonged to the appellant and PW7. But, so far as it

concerned PW7, she had denied any knowledge about the drug found in

the house and that on the contrary, she testified that the drug did not

belong to her. This evidence was accepted by the learned judge. It would

therefore be inevitable for the learned judge to arrive at a correct finding

that the evidence adduced by the prosecution and the appellant’s defence

clearly showed beyond any doubt that the appellant alone had custody or

control of the premises from which the drug was found and by virtue of

section 37(d) of Act 234, the appellant is deemed to be in possession of

the drug and until the contrary is proved, to have known the nature of such

drug. We accept the position in law that the ‘deemed’ state of affairs in

section 37(d) that is, the deemed knowledge is by operation of law and

there is no necessity to prove how that particular state of affairs is arrived

at. The prosecution need only to establish the basis or primary facts

necessary to give rise to that state of affairs, that is, the finding of custody

or control [Muhammed bin Hassan v Public Prosecutor, supra]. In any

event, there is no evidence that the appellant was framed up by the police

or any other persons. We would observe that this is not the defence case

at all. On the contrary, the evidence has clearly shown that the appellant

was in possession of the drug that would exclude others from enjoyment

of the same.

[28] It is at this stage important to state that the defence case in respect

of both charges is one of a bare denial. As regards Exhibit P30 which

24

contains the information under section 27 of the Evidence Act 1950, the

appellant flatly denied that he ever gave the information and signed it. It

is hard to believe that the appellant did not sign Exhibit P30 when the

irrefragable evidence showed that PW7 had also signed a similar

document in Exhibit P32 in which she denied knowledge or having

possession of the drug found at the back of the house. His stance would

not, in our judgement, go beyond a mere denial as to persuade us to

accept his claim that he did not give the information. We would say that

PW4 could not have discovered the proscribed drug if not for the

information obtained from the appellant. It is unthinkable that PW4 had

fabricated evidence in view of the complete absence of any evidence or

allegation by the appellant that PW4 had made up a story regarding Exhibit

P30. In fact, the appellant admitted during cross – examination that PW4,

PW5 as well as PW7 had absolutely no reasons to lie about him. PW4

and PW5 were police officers who were merely performing their duties and

they had no reasons to lie or to frame up the appellant whom they said

they did not know. The learned judge had accepted their evidence and

we find no reasons whatsoever to interfere with the decision and the

assessment of the evidence of PW4, PW5 and PW7 by the learned judge.

The learned judge was perfectly entitled to accept the evidence of these

witnesses whose credibility His Lordship found to be impeccable.

[29] In the case of Wong Kok Chun lwn PP [2012] 1 LNS 419 this Court

in the judgement of Hasan Lah JCA (as His Lordship then was) said–

“[62] Kami juga menolak pembelaan perayu bahawa dia tidak ada

memberi maklumat sedemikian kepada SP5 kerana kami berpendapat

tidak ada sebab untuk SP5 berbohong mengenai perkara ini. SP5

adalah seorang pegawai polis yang melaksanakan

25

tanggungjawabnya. Tidak ada sebab untuk beliau menganiaya

perayu. Apa yang diberitahu oleh SP5 kepada mahkamah adalah

perkara yang sebenarnya berlaku. Hakim perbicaraan telah

menerima keterangan SP5 dan tidak ada sebab untuk kami

mengganggu keputusan tersebut. Perlu juga ditegaskan di sini dalam

menilai kebolehpercayaan saksi-saksi, Mahkamah Rayuan tidak

sepatutnya mengganggu dapatan hakim perbicaraan kerana beliau

adalah orang yang lebih layak untuk membuat pertimbangan

sedemikian (lihat Andy Bagindah v. PP [2000] 3 CLJ 289; [2000] 3 MLJ

644)”.

[30] It is significant to bear in mind that since both PW4 and PW5,

were merely carrying on their official duties at the relevant time, in

law the court is entitled to presume that their official acts were

regularly performed and prima facie they did so honestly and

conscientiously. Section 114 illustration (e) of the Evidence Act

1950 in this regard provides that the court many presume that

judicial and official acts have been regularly performed. In the

case of PP v Dato’ Seri Anwar Ibrahim [2014] 4 CLJ 162, the

Court of Appeal said –

“It must be borne in mind that s. 114 illustration (e) of the Evidence Act

1950 provides that the court may presume that judicial and official acts

have been regularly performed. In State of Punjab v. Rameshwar

Dass [1957] Cri LJ 1630, the Punjab & Haryana Court held at p. 1631

as follows:

It is well settled that prima facie the public servants must be

assumed to act honestly and conscientiously. It would, therefore,

be basically wrong, without other cogent ground to consider them

as untrustworthy witness in respect of their activities in performance

of their official duties merely because of their official status unless

26

the evidence is considered to be suspicious and that the conviction

of the accused cannot be sustained on the statements of the official

witnesses. The presumption that a person acts honestly applied as

much in favour of a police officer as of other persons, and it is not a

judicial approach to distrust and suspect him without good grounds.”

[31] Accordingly, without cogent reasons that would allow us to

hold otherwise, it would be manifestly wrong to consider PW4 and

PW5 as untrustworthy witnesses in handling this case. In the end

what we have before us is nothing more than the bare oral

testimony which was a mere denial. We are satisfied that the

appellant’s denial in his defence, as alluded to earlier considered

in the light of the entire evidence upon which this Court has

subjected to anxious scrutiny, has failed to exonerate the

appellant from his involvement in both offences of trafficking and

possession of the dangerous drugs under sections 39B(1)(a) and

12(2) of Act 234 respectively and could not rebut the presumption

of trafficking under section 37(da) of Act 234 in relation to the first

charge and the presumption of possession and knowledge under

section 37(d) of the same Act in respect of the second charge. A

bare denial is insufficient to raise a reasonable doubt in the

prosecution’s case [Faisal Abd Aziz v PP, supra]. It was a

perilous course of action for the appellant to take that would

amount to the appellant offering no explanation to the

prosecution’s case. This was what the Court of Appeal in Amran

Senin v PP [2013] 1 LNS 1504 had held–

“[48] The High Court Judge narrated and evaluated the defence of the

appellant from pages 223 to 239 of the Appeal Record at Jilid 2.

Having invoked the presumption of trafficking under section 37(da) of

27

the DDA, the High Court Judge held that the defence has the burden

of rebutting the presumption on the balance of probabilities (Public

Prosecutor v. Yuvaraj [1969] 2 MLJ 89, PC). The High Court Judge

agreed with the deputy public prosecutor having conduct of the

prosecution that the defence of the appellant was nothing more than a

mere denial. Indeed the High Court Judge after having assessed the

whole evidence aptly said at page 238 of the Appeal Record at Jilid 2:

“Jelas daripada keseluruhan keterangan yang dikemukakan

bahawa pembelaan ‘T’ semata-mata penafian yang tidak disokong

oleh mana-mana keterangan sama ada dari saksi-saksi

pendakwaan mahupun keterangan beliau sendiri.”

[49] A defence of bare denial envisages the situation where the

accused offers no explanation to the prosecution’s case and merely

denies the evidence piled up against him. This was the line of defence

adopted by the appellant. It was a perilous course of action to take

(D.A. Duncan v. Public Prosecutor [1980] 1 LNS 12; [1980] 2 MLJ 195,

FC; Public Prosecutor v. Nur Hassan bin Salip Hashim & Anor [1993]

2 CLJ 551; Andy bin Bagindah v. Public Prosecutor [2000] 3 CLJ 289;

[2000] 3 MLJ 644, CA; Public Prosecutor v. Low Soo Song [2004] 1

LN 582 [2004] 3 AMR 320; and PP v. Abdul Manaf Muhamad Hassan

[2006] 2 CLJ 129, FC).

[50] It must be emphasised that both SP4 and SP9 had no bad motives

to frame up the appellant. The appellant also agreed that the police

had no reason to put the appellant in trouble especially when the

offence carried with it the death penalty. Consequently, there was no

reason not to believe the evidence of SP4 and SP9.

[51] The High Court Judge rightly took judicial notice that “ganja”

emitted a strong smell and even if what the appellant said was true

that the drugs were located in the boot of the Proton Wira motorcar

(which was strenuously denied by the prosecution), it cannot be

28

overlooked that the appellant could still smell the “ganja”. The strong

smell of “ganja” was even detected by SP4.

[52] At the end of the day, the defence of mere denial cannot rebut, on

the balance of probabilities, the presumptions of trafficking under

section 37(da) of the DDA. It was a forgone conclusion for the

appellant.”

[32] Having regard to all the foregoing reasons and the well

recognised principles distilled from the authorities hereinbefore

referred to, we think it is proper at this concluding stage for a

finding to be made that the appellant’s convictions on both

charges are safe. It is clear to us that the learned judge undertook

a correct and adequate judicial appreciation of the entire evidence

concluding in the end that the appellant, as regards the first charge

had obviously failed to rebut the presumption of trafficking under

section 37(da) of Act 234 and as for the second charge, had failed

to rebut the presumption of possession and knowledge under

section 37(d) of the same Act on the balance of probabilities.

Accordingly, we unanimously find no difficulty whatsoever in

holding on the strength of the evidence and on the law that the

charges of trafficking in and possession of the dangerous drugs

namely heroin had been successfully proved against the appellant

beyond reasonable doubt. We therefore affirmed the order of

conviction and sentence by the learned judge in respect of both

charges.

[33] However, a final point needs to be made. The learned judge,

in respect of the second charge, refrained from imposing a

mandatory whipping of not less than 10 strokes under section

29

39A(2) of Act 234 on the ground that the appellant had also been

sentenced to death on the first charge. We think the decision is

erroneous. The learned judge had obviously taken into account

irrelevant factor as the death sentence imposed for the offence

under the first charge should not have any bearing on the

sentence to be meted out for the offence under the second charge.

His Lordship had undoubtedly omitted to consider that the

sentence of whipping is mandatory for the offence with which the

appellant was charged and found guilty under section 12(2) and

punishable under section 39A(2) of Act 234. For these reasons

we sentenced the appellant to whipping of 10 strokes in addition

to the sentence of imprisonment of 10 years imposed by the

learned judge. The appeal is dismissed.

Signed ( IDRUS BIN HARUN )

Judge Court of Appeal, Malaysia

Putrajaya

Dated: 29 August 2017

30

1. Counsel For The Appellants - Encik Wan Zainuddin bin Wan Musa

Wan Zainudddin & Co.

No.17, Lot 3684

Taman Sri Intan

Jalan Sultan Omar

20300 Kuala Terengganu

2. Counsel For The Respondent - Puan Kwan Li Sa

Timbalan Pendakwa Raya

Bahagian Perbicaraan dan Rayuan

Jabatan Peguam Negara

No. 45, Persiaran Perdana

Presint 4

62100 Putrajaya