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IN THE COURT OF APPEAL, MALAYSIA AT KOTA KINABALU

CRIMINAL APPEAL NO S-05-45-03/2012

BETWEEN

SYED ABU THAGIR SYED ABU BAKKAR … APPELLANT 

AND

PUBLIC PROSECUTOR … RESPONDENT 

[In the matter of High Court Malaya at Kota Kinabalu

Criminal Trial No K45-02-2011

Between

Public Prosecutor

And

Syed Abu Thagir Syed Abu Bakkar]

CORAM:

ABDUL AZIZ BIN ABD RAHIM, JCA

ROHANA BINTI YUSUF, JCA

ABANG ISKANDAR BIN ABANG HASHIM, JCA

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JUDGMENT OF THE COURT

Introduction:

[1] Syed Abu Thagir Syed Abu Bakkar (“the Appellant”) was charged

for trafficking in dangerous drugs as per charge below: 

"That you, on the 30.12.2010 at about 12.30 p.m., at the

Special Passenger's Examination Unit of the Kota Kinabalu

International Airport, Kota Kinabalu, in the State of Sabah, did

traffic in dangerous drug, to wit a total of 1982.2 grams of

Ketamine, which is listed in the First Schedule of the Dangerous

Drugs Act 1952 (Act 234) without any authorization and you

thereby committed an offence under section 39B(1)(a) of the

Dangerous Drugs Act 1952 (Act 234) and punishable under

section 39B(2) of the same Act."

The Prosecution’s case

[2] On 30 December 2010 at about 12:00pm Shaid bin Daim (SP4)

was on duty with other customs personnel at the arrival hall of the Kota

Kinabalu International Airport. There he saw the Appellant and other

passengers heading towards the green lane on his way out. The

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 Appellant was seen alone and he was seen carrying a red suitcase (P2)

and a black backpack (P3). SP4 directed the Appellant to scan P2 and

P3 on a scanning machine.

[3] On being scanned, Kasmah binti Karim (SP5) who was in charge

of the scanner found P2 to contain inorganic materials such as fabric.

The Appellant was subsequently asked to open the bag for inspection.

The Appellant unlocked the padlock and opened the bag. When the bag

was opened, it was found to contain 45 pieces of sarees (P32 (1) -

(45)). He was then asked to pay a tax of RM300. 00 for the sarees. The

 Appellant tried to bargain with the Customs Officers to have the amount

reduced to RM200.00 because he contended that he had been

previously charged the latter amount for similar goods.

[4]  As the Appellant refused to give full cooperation, SP4 then

conducted a detailed inspection on the contents of the bag. In the

course of doing so, he became suspicious when he felt some granular

materials were woven among the flower patterns on the sarees in the

bag.

[5] SP4 subsequently ordered the Appellant and his bags be brought

into the operation room for further examination. In the room, SP5 cut a

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little piece from flower patterns on the saree and found that it contained

a small transparent plastic package of yellowish-white granular

substances (‘the substances’). According to SP4, the Appellant

appeared anxious and frightened when they found the plastic packets.

SP5 also testified that the Appellant was in tears after the packets were

found.

[6] The said substances were then sent to the Chemistry Department

for analysis. Government Chemist one Ahmad Nazri bin Husain (SP3)

confirmed that the substances contained 1982.2 grams of Ketamine,

which is a dangerous drug under the First Schedule of the Dangerous

Drugs Act of 1952 (“the DDA”).

[7] The Appellant was subsequently charged for drugs traficking as

 per  the charge stated above, in the High Court at Kota Kinabalu, Sabah.

 At the end of the prosecution, the learned High Court Judge (“the HCJ”)

found that a prima facie case had been established by the prosecution,

and the Appellant was ordered to enter on his defence.

The Case for the Defence

[8] The Appellant had elected to testify under oath. According to the

 Appellant, he was from Tamil Nadu, India. On the date of his arrest, it

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was not the first time he set foot in Kota Kinabalu. On that unfortunate

day, he was actually a transit passenger scheduled to fly to Kuala

Lumpur at 5.30pm later that day.

[9]  According to the Appellant, he had brought the red bag, P2, into

Kota Kinabalu from India. The Appellant confirmed SP4’s evidence that

he was asked to pay a tax of RM300.00 for the sarees and that he had

tried to have it reduced to RM200 instead.

[10]  As to why he was crying, the Appellant had said that he was

shocked and had cried, thinking how the substances in the packets

could have been inside the red bag. As far as he knew, the red bag had

contained only sarees.

[11] The Appellant also tendered in his cautioned statement (D1) that

was recorded by the Customs Officer on 30 December 2010 at 3.00

pm.

The decision of the High Court

[12] The learned HCJ, at the end of defence case, had found the

 Appellant guilty as charged and had convicted him. The Appellant was

then sentenced to death by hanging as mandated under section 39B(2)

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of the DDA. The Appellant, being aggrieved by the decision of the HCJ

had filed the notice of appeal seeking to overturn the same.

The Appeal

[13] We had heard the appeal. Having perused all records of appeal

and having listened to oral submissions by both counsel, we had

unanimously dismissed the appeal and upheld the conviction as well as

sentence by the learned HCJ. We now set out our reasons for having

so decided.

The Appellant’s submission

[14] We will first allude to the issues raised by the learned defence

counsel for this Court’s deliberation, and they had been:

i. The prosecution had failed to establish a prima facie case

ii. Wrong application of S.37(d) of DDA

iii. Uncertain finding of possession

iv. Absence of finding of trafficking

v. Unfair and improper treatment of defence

[15] We will deal with the issues as raised by the Appellant in turn. We

will deal with the first complaint pertaining to the lack of a prima facie 

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case having been proven by the prosecution. Basically, this complaint

involves 2 issues. First, it was concerned with non-compliance with

section 272 of the Criminal Procedure Code (“the CPC”) by the Court.

Secondly, it had concerned the issue of whether the prosecution had

proven possession of the drugs against the Appellant in the

circumstances of this case.

[16] On the issue of section 402B of CPC, the learned counsel for the

 Appellant had submitted that the non-compliance with section 272 of

CPC was fatal as that provision was mandatory. It had pertained to the

evidence of the Chemist SP3 Ahmad Nazri bin Husain. He was of the

view that the expertise of SP3 was not established as that information

on his qualification was contained in Exh. D which was admitted by the

learned trial Judge, as was explained by SP3 when he was questioned

about Exh. D by the learned trial Judge. [See page 31 of Notes of

Proceedings in the High Court]. The learned counsel had contended

that the learned trial Judge could not do that as that would contravene

section 272 of CPC which states that:

“272. Judge to take notes of evidence.

In all criminal cases tried before the High Court the Judge shall

take down in writing notes of the evidence adduced.”

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[17] In this case, SP3 had testified on 10 January 2012, but his

qualification was contained in a document marked as Exh. D. The

defence argued that as section 402B of CPC only came into effect on 1

June 2012, Exh. D ought not to have been admitted by the learned trial

Judge. Without such evidence on the qualification of SP3 his evidence

was incomplete, according to the learned counsel for the Appellant. The

newly amended section 402B(1) and (2) of CPC provided as follows:

“402B. Proof by written statement. 

(1) In any criminal proceedings, a written statement by any

person shall, with the consent of the parties to the proceedings

and subject to the conditions contained in subsection (2), be

admissible as evidence to the like extent as oral evidence to

the like effect by that person.

(2) A statement may be tendered in evidence under

subsection (1) if-

(a) the statement purports to be signed by the person who

made it;

(b) the statement contains a declaration by that person to

the effect that it is true to the best of his knowledge and

belief; and

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(c) a copy of the statement is served, by or on behalf of the

party proposing to tender it, on each of the other parties

to the proceedings not later than fourteen days before

the commencement of the trial unless the parties

otherwise agree.” 

[18] The learned counsel had cited to us the case of Formi Afta

Ahmad & Anor v PP [2013] 9 CLJ 183 (“Formi Afta case”). It was also

submitted before us that the chemist did not testify that the substances

that he had analysed were ‘Ketamine’, a dangerous drug listed in the

First Schedule of the DDA. In response, the learned Deputy submitted

to us that the provision under section 402B of CPC was merely

directory and that it could be applied retrospectively.

[19] Having considered both submissions, we noted that section 272

of CPC stated that the Judge was to record in writing the notes of the

evidence adduced. But in this instance, the SP3 had given oral

evidence which was dutifully taken down in verbatim by the trial Judge.

We noted that the impugned document marked Exh. D had contained

his qualifications that was type-written and signed by him. In such a

case, there was no need for the learned trial Judge to ‘take down in

writing that which had been type-written on the document. After all,

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when the chemist, SP3 tendered his qualifications on that document

Exh. D he was already under oath. It was not as though the Exh. D was

tendered just like that. On the contrary, it was tendered by the same

witness who had testified to its veracity regarding his qualifications. So,

looking at Exh. D we were of the view that it was not a statement which

was envisaged under section 402B of CPC. To our mind, section 402B

of CPC envisages a statement of facts signed by the witness similar to

the one given by a witness in his witness statement in a civil litigation. In

this case before us, the SP3 came and testified under oath. He gave his

oral evidence. It was only his qualification that was type-written on a

piece of paper prepared by him which he himself had tendered in Court

under oath, for the convenience of everybody. There was no objection

by the defence counsel when it was admitted by the trial Judge and

marked as Exh. D. He could be cross-examined on it, which, indeed

had happened in this case before the HCJ. The Appellant was not at all

prejudiced by the tendering of this document by the prosecution. In fact,

SP3 was cross-examined on its contents. As such, the inter-play

between Exh.D and section 402B of CPC did not arise and the case of

Formi Afta case [supra] cited by the learned counsel did not apply to

the factual matrix of this case.

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[20] In any event, the role of the chemist in a drug analysis exercise

has been spelt out in the Supreme Court with sufficient clarity by Abdul

Hamid bin Omar LP in the case of Khoo Hii Chiang v PP [1994] 2 CLJ

151. In essence, the chemist, in determining the nature of the

substances under examination in his laboratory was not expressing an

opinion. He was reporting a factual finding resulting from his

observation as to the nature of the substances that he has analysed in

his laboratory. There was therefore no need for the chemist to establish

his expertise in that sense. Abdul Hamid Omar LP. had said in the

Khoo Hii Chiang case [supra] the following :

“It is appropriate at the outset to determine whether the

evidence of a chemist on the identity of a drug constitutes

evidence of fact or opinion and to consider the attendant issue

governing the admissibility of such evidence. If the chemist’s

evidence is factual, then it follows that he is competent to give

evidence like any other witness and by the same token the law

on the admissibility of such evidence would apply. If the

chemist’s evidence constitutes an opinion, then his evidence

would come under the category of expertise evidence. In that

case the question of his competency to give expert evidence

arises. The law seems clear that opinions of experts are under

certain conditions admissible in evidence. Our law of expert

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evidence is to be found in s. 45 of the Evidence Act which

explains who experts are. (see also ss. 46 to 51).” 

[21] Before we depart on the issue of qualification of the chemist,

hence Exh. D, we need to reiterate here that in a case that does not

require complicated analysis involving forming of opinions on findings

as a result of an analysis, there is no need to look into the qualifications

of a chemist who does the examination and who reports to the Court on

his observations. We found support for this proposition in the Supreme

Court case of Junaidi bin Abdullah v PP [1993] 4 CLJ 201. In that

case, which involved an examination of a revolver by a government

chemist, it was stated by learned Mohd Azmi Kamaruddin SCJ as

follows:

“We were therefore of the opinion that since the evidence

sought to be proved by the prosecution was limited only to

servicibility of an ordinary revolver, Mr. Cheong (PW6) a

Chemist in the Chemistry Department was competent to give

expert evidence of such uncomplicated matter. In the

circumstances of this case, the Court was entitled to accept his

position as a Government Chemist as sufficient, without going

into his academic qualification or experience, although for the

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sake of completeness it is desirable to do so. Therefore, the last

ground of appeal must equally be rejected.” 

[22] Having looked at the evidence as contained in the record of

appeal, we were satisfied also that there was no break in the chain of

exhibits in this case. We agreed that the exhibits tendered in the trial

Court were the same exhibits that were seized and handled by the

various witnesses for the prosecution during the investigations prior to

the trial.

[23]  As to the alleged non-finding by SP3 of Ketamine being a

dangerous drug listed under the First Schedule of the DDA, we found

that the SP3 did mention in his oral testimony that the granular

substances that he had examined were ketamine and during his cross-

examination by learned counsel, SP3 said that when asked by counsel:

“Q: Refer to D.-you agreed that you did not state that you have

done any analysis on ketamine.

 A: Saya merujuk kepada bilangan no. 11 kepakaran anda? No1

 Analisis dadah berbahaya di bawah ADB 1952 adalah

merangkumi semua dadah yang tersenarai di dalam Akta ini

termasuklah ketamine.”

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[24] This was further corroborated by his entry in his chemist report

that was marked as P11 where he stated his findings as ketamine and

that the “Ketamine adalah disenaraikan dalam Jadual Pertama Akta

Dadah Berbahaya 1952.” As such, we found no merit in the Appellant’s

contention before us on that issue.

[25] On the issue of whether the prosecution had established

possession against the Appellant, we noted that the learned HCJ had

addressed his mind on section 37(d) of the DDA as well as on actual  

possession in his deliberation on this issue in his Grounds of

Judgement (“GOJ”). Possession founded upon finding premised on

section 37(d) DDA is also commonly referred to as  presumed  

possession. So he had addressed his mind on both types of

possession.

[26] For ease of reference, we now reproduce Section 37(d) of the

DDA which reads as follow:

“In all proceedings under this Act or any regulation made there 

under-

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(a) any premises shall be deemed to be used for a purpose if

they are used for that purpose even on one occasion only;

(b) a person, until the contrary is proved, shall be deemed to

be the occupier of any premises, if he has, or appears to have,

the care or management of such premises;

(c) if any syringe and dangerous drug suitable for hypodermic

injection, or any pipe and dangerous drug suitable for smoking

be found in any premises, it shall be presumed, until the

contrary is proved, that the premises are used for the purpose

of the administration of a dangerous drug to, or the smoking or

consumption otherwise of a dangerous drug by, a human

being and that the occupier permits such premises to be used

for such purpose;

(d) any person who is found to have had in his custody or

under his control anything whatsoever containing any

dangerous drug shall, until the contrary is proved, be

deemed to have been in possession of such drug and

shall, until the contrary is proved, be deemed to have

known the nature of such drug;

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[27] The learned HCJ, after taking into account the evidence that the

red bag (P2) was at all material times under the control of the Appellant

from the time when he was first seen pulling it on his way towards the

green lane at the Kota Kinabalu International Airport, until he was seen

unlocking, and indeed having unlocked the padlock attached to it in the

operation room of the Customs Department at the same airport, had

concluded that the prosecution’s evidence as led before him, taken as a

whole, had established possession as envisaged under section 37(d) of

the DDA. That possession was presumed possession. Having

considered the relevant evidence which were referred to by the learned

HJC we were in agreement with him that presumed possession was

rightly found. We found nowhere in the evidence that the Appellant had

seriously challenged the fact that he was in physical possession of the

red bag which had contained the sarees, thus the drugs that were found

on the sarees. The fact that he was in possession of the key with which

he had unlocked the padlock that had secured the red bag pointed

strongly, to our mind, to the fact that the Appellant indeed had custody

or control over the red bag, P2. We therefore found that the learned

HCJ had correctly found as a fact and as a finding of law that the

presumed possession under section 37(d) of the DDA against the

 Appellant had been established. In the case of Warner v.

Metropolitan Police Commissioner  [1969] 2 AC 265, it was stated by

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the House of Lords that in such a scenario, it became incumbent on the

person so positioned in relation to the impugned items to explain away

the nexus that has been established. We noted too that the learned

HCJ had alluded to the issue of trafficking in the drugs by the Appellant,

as can be seen at page 9 of his GOJ, where he had said, after quoting

the Federal Court in the case of Mohamad Yazri bin Minhat v PP 

[2003] 2 MLJ 241, as follows :

“Whether he is a trafficker in those circumstances depends on

the facts and circumstances of the given case, including the

quantity of the drugs and any transaction the accused proposed

to enter into. Judging from the manner the drug was been

carried i.e. small plastic packets and taking into account the

total amount of the drug involved, the reasonable inference that

may be drawn is that the respondent was in fact carrying it for

the purpose of trafficking.” 

[28] He had even noted that no presumption of trafficking in the drugs,

being Ketamine, under the law that operated against the Appellant in

this case. As such, he had addressed his mind to the important fact that

to get an acquittal from the charge that was leveled against him for

trafficking, the Appellant would only have to raise a reasonable doubt

on that factum of trafficking. The mere fact that he did not refer to

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section 2 of the DDA that defines the word ‘traffic’ was not, to our mind,

fatal to the prosecution’s case. Clearly, he had found as a fact, at that

stage, that the impugned drugs were being transported and concealed

in an ingenious manner among the intricate embroideries on the sarees.

The images of the sarees can be seen in the photographs that were

tendered in Court during trial. [See P7(13) to P7(22)]. Those words,

involving transporting and concealing, are derived from the respective

root verbs under section 2 of the DDA which constitute an act to traffic.

We noted too that he had subjected the evidence led by the prosecution

to a maximum evaluation as required by law as enunciated in the case

of Mohammad Radzi bin Abu Bakar v PP [2006] 1 CLJ 457. We were

satisfied that there was sufficient evidence before him justifying such a

positive finding by him that a prima facie case had been established by

the prosecution warranting the Appellant to enter on his defence. As

such, we found no merit in the Appellant’s contention that there

prosecution had failed to prove possession of the drugs by the

 Appellant, at the end of the prosecution case.

[29] The learned counsel for the Appellant had also complained before

us that the learned HCJ was ‘uncertain’ on his finding of possession. At

first we were not clear what this complaint was all about. Later it was

explained to us that the learned HCJ seemed to have made 2 findings

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on possession of the drugs by the Appellant. One was the ‘presumed’

possession and the other one was the ‘actual’ possession. Having

perused through the evidence, we could appreciate the learned trial

Judge’s remark on actual possession. It was his view that based on the

evidence as led by the prosecution, the conduct of the Appellant, where

he had appeared ‘gugup’ and was crying when the drugs were

discovered by the customs officers, would constitute sufficient evidence

to found actual possession on the part of the Appellant vis-à-vis the

impugned drugs. That being quite apart from the fact that the evidence

as led had also justified him into invoking the presumption of

possession of the drugs under section 37(d) of the DDA. But at the end

of it all, the learned HCJ had ruled that it was the presumed possession

that had operated against the Appellant which he had to rebut on the

balance of probabilities. This we can see clearly in his GOJ at page 6

where he had said:

“Memandangkan tertuduh mempunyai kawalan dan jagaan ke

atas dadah berkenaan, andaian pengetahuan dibawah seksyen

37(D) ADB terpakai terhadapnya. Ini bermakna beban

pembuktian terletak di bahu tertuduh untuk membuktikan atas

imbangan kebarangkalian bahawa yang tidak tahu menahu

tentang dadah tersebut.”

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[30] We saw no merit in the Appellant’s complaint based on that

alleged grievance. To our mind, he was not prejudiced in any way. In

fact, the learned trial HCJ had amply reminded the Appellant as to the

nature of the burden which he would have to discharge in his defence

as regards the factum of presumed possession which was he had to

discharge it on the balance of probabilities.

[31]  As regards the absence of a finding of trafficking by the learned

HCJ at the end of prosecution’s case and the end of the defence case,

we had perused through his GOJ. As a result of such exercise, we had

found that such complaint by the Appellant was without basis. We said

so because the GOJ showed the direct opposite of what the Appellant

was complaining about. As regards the alleged non-finding of trafficking

by the learned Judge at the end of the prosecution’s case, we will

reproduce that part of the GOJ where the learned trial had dealt with

that issue. That part of his decision resides at page 9 of his GOJ and it

reads:

“Dalam kes ini dadah tersebut adalah dalam jumlah yang

banyak, dibungkus dengan rapi dan disembunyikan pula

dengan cara yang begitu “ingenious” sekali. Seperti mana boleh

dilihat dari gambar-gambar di P7 (13) hingga P7 (22) sesiapa

yang melihatkan kain-kain sari tersebut tidak akan menyangka

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bahawa di sebalik corak bunga yang dijahit kemas itu terdapat

dadah yang disembunyikan. Oleh yang demikian, meminjam

kata-kata Lord Diplock dalam kes Ong Ah Chuan (Supra) “The

inference that he was transporting them for the purpose of

trafficking in them would, in the absence of any plausible

explanation by him would be irresistible.”  

[32]  As regards the finding on trafficking at the end of the whole case,

that finding appeared at the penultimate paragraph at page 18 in his

GOJ:

“Saya juga telah menimbang samada penjelasan tertuduh telah

menimbulkan keraguan yang munasabah terhadap kes

pendakwaan bahawa dadah tersebut adalah tujuan

pengedaran. Setelah berbuat demikian saya mendapati

bahawa penjelasan tertuduh gagal untuk menimbulkan apa-apa

keraguan terhadap kes pendakwaan. Saya mendapati bahawa

pihak pendakwaan telah membuktikan pertuduhan tanpa

sebarang keraguan munasabah. Oleh yang demikian tertuduh

disabit atas kesalahan dan dijatuhi hukuman sewajarnya.” 

[33] The last issue that was raised by the learned counsel for the

 Appellant before us was the complaint by him that the learned HCJ was

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unfair and that he had improperly appreciated the defence of the

 Appellant. In this regard, the general rule that needed to be stated is

that all trial judges need to adhere to the salutary rule that they must

consider the defence put up by the accused person, however weak and

hopeless the defence may appear to be, before coming to a judgement

at the end of the defence case. Failure to abide by that rule is a non-

direction amounting to a misdirection and a conviction so arrived at,

runs the risk of being set aside. The element of unfairness can be

clearly seen in such an approach. It really amounts to not hearing the

accused person’s defence at all, giving the accused person a mere

semblance of a hearing, when in fact, the Court does not consider his

version of the material events at all.

[34] But in this appeal before us, the same cannot be said of the

learned HCJ. On the contrary, he did consider the Appellant’s defence.

This fact we could see at pages 13-17 of his GOJ. In fact, he put the

evidence of the Appellant up to scrutiny, which he was obligated and

mandated to do. He was discerningly critical in his approach. He had

subjected the defence evidence to the probability test. With respect, to

our mind, there was nothing wrong in adopting that approach.

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[35] It is worth noting that the Appellant in his defence bore 2 kinds of

burden to be discharged. The first was the burden to rebut the

presumption of possession under section 37(d) of the DDA. In this

regard, he had to do that on the balance of probabilities. The Privy

Council case of PP v.  Yuvaraj [1968] 1 LNS 116 (“ Yuvaraj  case”) is

instructive on that issue. Secondly, he had to raise a reasonable doubt

on the factum of trafficking. The case of Mat v PP [1963] 1 LNS 82

outlines what has now become trite on the issue. In the context of this

case, if he succeeded in rebutting the presumption of possession, the

issue of trafficking would be rendered academic. He would be entitled to

an acquittal from the charge. The factum of trafficking would have

begun its run from him being in possession of the impugned drugs. But

that was not the same as saying that possession equals trafficking.

They are in fact two distinct and separate offences under the DDA.

Trafficking would require proof of possession of the drugs by the

accused person. But for the offence of possession, it does not require

any proof of trafficking. That was the reason why it would be wrong for

the Court to convict an accused person of trafficking just because the

accused person had failed to rebut the presumption of possession in a

trafficking charge. The Court would, in appropriate cases be under an

obligation to undertake a separate exercise to determine whether the

element of trafficking had been made out although the accused has

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failed to rebut the presumption of possession. That statement of legal

principle finds its genesis in the decision of the Supreme Court in the

case Mohammad Radzi bin Yaacob v PP [1991] 3 MLJ 169. With

respect, we noted that the learned trial Judge had undertaken that 2-tier

exercise before he finally came to the conclusion that the Appellant was

guilty of the charge of trafficking.

[36] In the course of doing so, the learned Judge had considered the

evidence of the Appellant. Just because the learned HCJ had ruled

against the Appellant did not mean that he had been unfair in his

treatment of the Appellant’s evidence.  In fact, the learned trial Judge

had subjected the version of the Appellant to the reasonable test to see

whether it could have been reasonably probable in the circumstances of

the case. At the end of that exercise, the learned trial Judge had found

the version of the Appellant to be unreasonable. It was the defence of

the Appellant that he was bringing the red bag, P2 for someone to be

given to someone else in Kuala Lumpur. In other words, he was a mere

innocent carrier. He only was told that the bag had contained the

sarees, simpliciter . For his effort, he was given Ringgit 600. In short, he

had no knowledge of the impugned drugs. The learned counsel for the

 Appellant had referred us to the decision of this Court in the case of

Seyadalireza S. E v PP  [2014] 4 CLJ 406 (“Seyadalireza case”). But

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the Appellant before us did not even give the name of the person who

had allegedly given the red bag to him. This kind of a defence is

reminiscent of the Alcontara notice defence. But that defence requires

that the accused person would need to give a better set of particulars

pertaining to that other person so that the police could be reasonably

expected to usefully work on the particulars given with a view to verify

the veracity of the accused person’s version of events pertaining to the

impugned drugs. However, in this case the Appellant did not give such

information to the police so as to facilitate their investigations to verify

the Appellant’s version. The Seyadalireza case [supra] which was cited

to us by learned counsel for the Appellant therefore, with respect could

not assist the Appellant in his defence. So, the defence of the Appellant

in respect of the issue of presumed possession had been one of a bare

denial. Such defence could hardly contribute usefully towards rebutting

the presumption of possession under section 37(d) of the DDA that was

operating against him.

[37] It was the learned High Court Judge’s  conclusion that from the

overall evidence that was led before him that, the Appellant had cried

when the drugs, Ketamine, were found in the circumstances that they

were [concealed], because he had been caught in the act of trying to

transport the said drugs into this country and that there was nothing that

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he could do about it. In essence, the Appellant had failed to explain

away his conduct under section 9 of the Evidence Act 1950 thus he had

failed to rebut the presumption of possession, and he had failed to raise

any reasonable doubt regarding the element of trafficking.

[38] Having looked anxiously at the evidence as led by the Appellant

again in the records of appeal, we had no reason to disagree with the

findings of the learned trial Judge when he said at age 17 of his GOJ

like so:

“Saya yakin bahawa tertuduh menangis kerana beliau telah

tertangkap dan tiada apa yang beliau boleh lakukan untuk

menyelamatkan dirinya.”

[39] We agreed with the learned Judge’s refusal to accede to the

 Appellant’s submission that the Appellant did not have any knowledge

of the existence of the drugs ‘ingeniously’ concealed among the flowers

embroiled on the respective sarees. The totality of the circumstances as

found by the learned trial Judge had led to only one reasonable

conclusion, namely that the drugs were so concealed and transported

by the Appellant with a view to have them trafficked. We needed only to

refer to the observation made by learned Chief Justice in the Singapore

case of Zulfikar bin Mustaffah v PP [2001] 1 SLR 633 like so:

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“We are unable to accede to this request. While the fact that the

contents of the bundles were hidden from view may have been

relevant in determining whether the requisite knowledge was

absent, this factor should still not be given too much weight.

Otherwise, drug peddlers could escape liability simply by

ensuring that any drugs coming into their possession are first

securely sealed in opaque wrappings. Rather the court appraise

the entire facts of the case to see if the accused’s claim to

ignorance is credible.”

[40] The above observation by the learned Chief Justice was approved

of and was adopted by our Federal Court in the case of Parlan bin

Dadeh v PP  [2009] 1 CLJ 727. We had no reason to depart from that

approach in this appeal before us.

[41]  At the end of the appreciation of the defence evidence and in the

context of the whole case, the learned HCJ had finally concluded that

the defence had failed on both fronts to rebut the presumption of

possession that was operating against him and also that he had failed

to raise a reasonable doubt pertaining to the element of trafficking in the

charge. He had then convicted the Appellant on the charge and had

sentenced him to death [to an appropriate sentence: ‘dijatuhi hukuman

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yang sewajarnya’ [see page 18 GOJ] being the only sentence

mandated by law on conviction for a drug trafficking offence under the

DDA.

[42] In the upshot, based on the aforesaid grounds, we had found that

there was no merit in this appeal. We had therefore dismissed this

appeal and we had affirmed both the conviction and sentence imposed

by the learned HCJ. We had so ordered accordingly.

Dated: 6 January 2016

ABANG ISKANDAR BIN ABANG HASHIM

Judge

Court of Appeal

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Parties Appearing:

For the Appellant: Mr. Hamid Ismail (Messrs. Hamid & Co- Assigned

Counsel)

For the Respondent- Mr. Hamdan bin Hamzah, Deputy Public

Prosecutor.

Cases referred to:

1. Formi Afta Ahmad & Anor v PP [2013] 9 CLJ 183

2. Junaidi bin Abdullah v PP [1993] 4 CLJ 201

3. Khoo Hii Chiang v PP [1994] 2 CLJ 151

4. Mat v PP [1963] 1 LNS 82

5. Mohamad Radzi bin Yaacob v PP [1991] 3 MLJ 169

6. Mohamad Yazri bin Minhat v PP [2003] 2 MLJ 241

7. Mohammad Radzi bin Abu Bakar v PP [2006] 1 CLJ 457

8. Parlan bin Dadeh v PP [2009] 1 CLJ 727

9. PP v Yuvaraj [1968] 1 LNS 116

10. Warner v. Metropolitan Police Commissioner [1969] 2 AC 265

11. Zulfikar bin Mustaffah v PP [2001] 1 SLR 633