PP V Gunaseelan (2016) 1 Lns 714

[2016] 1 LNS 714 Legal Network Series
IN THE HIGH COURT OF MALAYA AT PENANG

IN THE STATE OF PENANG, MALAYSIA
[CRIMINAL TRIAL NO. 45A-25-09/2014]
BETWEEN
PUBLIC PROSECUTOR
AND
GUNASEELAN MARIAPPIN
(NRIC: 760906-07-5503)
GROUNDS OF DECISION
A) INTRODUCTION
[1] The amended charge against the Accused reads as follows:
Bahawa kamu pada 31.3.2014, jam lebih kurang 10.45

pagi bertempat di dalam stor di tepi rumah beralamat No.
1971 PBA-A, Jalan Tokong Kampung Jawi, 14200 Sungai
Bakap, Dalam Daerah Seberang Perai Selatan, di dalam
Negeri Pulau Pinang telah mengedar dadah berbahaya
jenis Cannabis seberat 880 gram. Oleh itu kamu telah
melakukan kesalahan di bawah Seksyen 39B(1)(a) Akta
Dadah Berbahaya 1952 dan boleh dihukum di bawah
Seksyen 39B(2) Akta yang sama.
1
B) SUMMARY OF PROSECUTIONS CASE
[2] The pertinent facts led by prosecution witnesses are that on

31.3.2014 at about 10.30am, a police team led by SP5 went to
premises located at No. 1971 PBA-A, Jalan Tokong Kampung Jawi,
14200 Sungai Bakap, Penang. After conducting surveillance for about
15 minutes, SP5 saw two males of Indian origin just outside a store
room located within the compound of the said premises.
[3] The police team then arrested the two male Indians who were the
Accused and one Albert a/l Valendross (Albert). Physical searches
were carried out upon the two but nothing incriminating was found on
them. After a key was seized from the right hand of the Accused,
police gained entry into the storeroom. As the result of a search
carried out inside the storeroom, the police found a pail for storing
paint labelled Walltex. The pail contained a blue plastic with the
words Nokia Connecting People. Inside the blue plastic were found
one package wrapped with two pages from The Star newspaper
containing one compressed slab of dried plant material suspected to be
cannabis wrapped with transparent loytape.
[4] Further inspection of the storeroom revealed the presence of a

black wallet with the word Levis containing the national registration
identity card (NRIC) of the Accused, found on the floor. Two mobile
Nokia hand phones and one Blackberry hand phone were also found.
Several items of clothing found there were also seized.
2
[5] Both suspects were brought to the Police District Headquarters,

Seberang Perai Selatan where SP5 lodged a police report, prepared a
search list duly signed by the Accused, a handover acknowledgement
list, and marked the exhibits recovered.
[6] SP5 handed over the exhibits to the investigating officer, SP8,
who also placed markings on the exhibits. SP8 also weighed the
exhibits. The exhibits were then placed by SP8 in a locked steel
cabinet the key to which was in the custody of SP8 at all times.
[7] It is the evidence for the prosecution that the Accuseds reaction
upon seeing the police and while the physical examination was
conducted was one of surprise terkejut and that he fell silent. Upon
the police discovering the incriminating exhibits, the reaction of the
Accused was said to be one of fear and trembling terketar-ketar
when answering the questions posed by SP5.
[8] On the 2.4.2014 at around 12.30pm, SP8 took out the exhibits
and instructed SP1 to take 9 photographs of the exhibits. On 2.4.2014
also at about 4.00pm, SP8 sent the exhibits placed in an envelope
marked E1 to the Chemist Department Jabatan Kimia Pulau
Pinang where it was handed over to the chemist, SP4, who duly
issued a receipt of acknowledgement to SP8.
3
[9] The result of the analysis conducted by SP4 revealed the
compressed slab of dried plant material contained in envelope marked
E1 to be cannabis with a nett weight of 880 grams.
[10] On 5.8.2014 at around 3.30 pm SP8 received back the exhibits in

the envelope marked E1 and also received a chemist report dated
17.7.2014 (Exhibit P19).
[11] During the raid carried out by the police on 31.3.2014, they also
discovered a pail for storing paint also inscribed with the words
Walltex and containing a blue coloured plastic in which were found
two slabs of compressed dried plant material suspected to be cannabis
and a pair of trousers marked island club. This exhibit was
discovered outside the storeroom and did not constitute the subject
matter of the charge in this case.
Prosecutions application to invoke section 32 (1) Evidence Act 1950
[12] During the trial, the prosecution sought to introduce the

statement of Albert a/l Valendross recorded under the provisions of
section 37A (1)(b) of the DDA. This application was made pursuant to
the provisions of section 32(1)(i) of the Evidence Act 1950 (EA)
which reads as follows:
32. Cases in which statement of relevant fact by person

who is dead or cannot be found, etc., is relevant
4
(1) Statements, written or verbal, of relevant facts made

by a person who is dead or who cannot be found, or who
has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay
or expense which under the circumstances of the case
appears to the court unreasonable, are themselves
relevant facts in the following cases:
(i) when the statement was made in the course of, or for
the purposes of, an investigation or inquiry into an
offence under or by virtue of any written law;
[13] In respect of the law on this subject, the case of Public

Prosecutor v. Mohd Jamil Bin Yahya & Anor [1993] 3 MLJ 702 held
as follows:
The scope of the first principle may be briefly indicated

by terming it the necessity principle. The person whose
assertion is offered may now be dead, or out of the
jurisdiction, or insane, or otherwise unavailable for the
purpose of testing.
The second principle which is termed circumstantial

guarantee of trustworthiness, is in the nature of a
practical substitute for the ordinary test of cross-
examination. We see that under certain circumstances the
probability of accuracy and trustworthiness of statement
5
is practically sufficient, if not quite equivalent to that of

statements tested in the conventional manner.
[14] Again, in the case of Public Prosecutor v. Michael Anayo

Akabogu [1995] 4 CLJ 79, it was held:
The scope of the first principle may be briefly indicated

by terming it the necessity principle. The person whose
assertion is offered may now be dead, or out of the
jurisdiction, or insane or otherwise unavailable for the
purpose of testing. The second principle which is termed
circumstantial guarantee of trustworthiness, is in the
nature of a practical substitute for the ordinary test of
cross-examination.
We see that under certain circumstances the probability of

accuracy and trustworthiness of statement is practically
sufficient, if not quite equivalent to the statements tested
in the conventional manner.
[15] The application of section 32(1) Evidence Act 1950 is not

automatic in nature. Applying the tests above to the facts of the case,
the necessity principle entails asking the question, have the police
taken all necessary steps to ascertain the whereabouts of the maker of
the statement, which in this case is the said Albert?
[16] The evidence of the investigating officer (IO), Inspector Nur

Asshikin Binti Abd Raman (SP8) reveals the following efforts made
6
by her to trace the said Albert:
i) She placed several phone calls to the phone number 016-

5085272 which number she obtained from Albert while he
was under detention.
ii) She also placed several phone calls to the numbers 014-
9401527 and 017-5212838 which she said were the current
phone numbers used by Albert which she had ascertained
from his work supervisor. However, these calls went
unanswered.
iii) A search made by her at the National Registration Office

revealed that Albert was still registered at the last known
address at N0.3-18 Blok B, Jalan Jawi Jaya 14200 Sungai
Bakap Pulau Pinang
iv) On 9.7.2015, she conducted a search in respect of one

Narniemah a/p Anthony who was the bailor to Albert at
the Magistrates Court and who also happened to be
Alberts mother. SP8 said that she was successful in
meeting her and the information given was that she did
not know the whereabouts and the current address of
Albert. SP8 also said that she found Alberts mother to be
unwilling to cooperate and evidently attempting to protect
Albert.
v) She managed to get confirmation from Syarikat Tarika

Enterprise that Albert had previously worked there but left
without giving notice.
7
vi) She placed newspaper advertisements P38 and P39 but to

no avail.
[17] It was on this basis that the prosecution argued for the
invocation of section 32(i) of the Evidence Act 1950.
[18] Learned counsel for the Accused on the other hand, argued that
from the very beginning, the police knew about the importance of
Albert as a witness in this case. In support he alluded to the testimony
of SP8 who agreed that Albert was an important witness and she had
notified the prosecution of this fact even before the Accused was
charged in court. In fact she went on to say that although she had
recommended when referring the investigation papers to the Attorney
Generals Chambers, that both Albert and the Accused be charged, she
received instructions to only proceed against the Accused.
[19] Learned counsel for the Accused went on to submit that in the
light of knowing the importance of Albert as a witness, the following
steps ought to have been taken to maintain contact with Albert with a
view to calling him as a witness at the trial.
i) Issuing a summons under section 34(2) of the Criminal

Procedure Code (CPC) or requesting one to be issued by
the court.
ii) Invoking the inherent powers of the police as stipulated in

section 111(1) of the CPC to request the said witness to
report to the nearest police station on a daily or weekly
8
basis.
iii) Requesting from the courts whilst investigations were still

ongoing, the imposition of restrictions under section
111(2) of the CPC.
iv) Issuing a summons under section 35 of the CPC to

important witnesses well before any suspects were charged
in court.
v) Applying under section 36 of the CPC to leave summonses

at the last known address of the witness.
vi) Having exhausted the above steps, to then issue a warrant

of arrest under section 47 of the CPC.
vii) If having failed to effect arrest on the witness after

issuing the warrant of arrest, to request the court to issue
a warrant of arrest under section 49 of the CPC.
viii) Should any of the above steps be still unsuccessful, to

then place an advertisement in the local newspapers under
section 118 of the CPC.
ix) Utilising the provisions of section 404 of the CPC which

allows for a bond to be executed against the witness with
a guarantor to ensure attendance at court.
[20] The defence submitted further that without taking all of the
above steps but merely advertising in the newspapers, the prosecution
9
cannot now take the easy way out and pray in aid section 32 (1) (i) as
a panacea to its lackadaisical attitude for which the Accused must now
be made to pay.
[21] It has been held that a person whose whereabouts are unknown
despite a proper search made is a person who cannot be found. See
Public Prosecutor v. Lim Bong Kat & Anor [1992] 4 CLJ 2173. The
application of the section is not automatic and sufficient evidence
must be adduced to show that despite all efforts made the person could
not be traced. See DA Duncan v. Public Prosecutor [1980] 2 MLJ 195.
The provision in section 32 (1) (i) was also considered in the case of
Public Prosecutor v. Lee Jun Ho & Ors [2009] 3 MLJ 400, where the
level of diligence expected on the part of the prosecution before the
section could be invoked was stated in no uncertain terms as follows:
Section 32 of the Evidence Act 1950 is an exception to the

general rule that hearsay evidence is inadmissible. Under
s. 32(1) of the Act, one of the circumstances under which
such a statement becomes admissible is where the person
who made the statement cannot be found. This was the
basis upon which the prosecution tried to invoke when
they attempted to produce and tender ID66 and ID67. For
a witness to be clothed as who cannot be found within
the meaning of s. 32(1) of the Evidence Act 1950, such
determination is a finding of fact, of which the onus is
upon the prosecution to prove.
10
From facts adduced, I find that the police has failed to

take all reasonably practicable steps to trace the
witnesses. In fact there was not a single proactive effort
by the police to procure the attendance of such material,
relevant and important eye-witnesses.
There was no attempt to fully utilise the prevailing and

available provisions of the Criminal Procedure Code, in
order to secure the attendance of the witnesses. The
police failed to invoke the provisions of Criminal
Procedure Code; which empowers the court to issue a
warrant in lieu of or in addition to summon a witness and
to require that person to execute a bond for his
appearance in court. The police also failed to invoke the
provisions of s. 118(1) of the Criminal Procedure Code
whereby the police officer who desires any person, who is
acquainted with the circumstances of a case, to be
present in court, shall require that person to execute a
bond to appear at the trial court. The prosecution also
failed to utilise the provisions of s. 396 of the Criminal
Procedure Code whereby the public prosecutor may apply
to court for any witness of any seizeable offence that
intends to leave Malaysia and that witnesss presence at the
trial to give evidence is fatal for the trial, to be committed
to the civil prison until trial or until he shall give
satisfactory security that he will give evidence at the trial.
11
.In view of the above circumstances especially of the

omissions by the police to take all reasonably practicable
steps in tracing the witnesses, and guided by the
following cases (on s. 32(1) of the Evidence Act):
(i) Public Prosecutor v. Mohamed Said [1984] 1 MLJ

50;
(ii) Public Prosecutor v. Mohd Jamil bin Yahya & Anor

[1993] 3 MLJ 702; [1994] 1 CLJ 200;
(iii) Public Prosecutor v. Gan Kwong [1997] MLJU

144; [1997] 2 CLJ Supp 433;
(iv) Public Prosecutor v. Chow Kam Meng [2001]

MLJU 386; [2001] 7 CLJ 387;
(v) Public Prosecutor v. Mogan Ayavoo [2004] 3 CLJ

623; and
(vi) Public Prosecutor v. Norfaizal bin Mat (No 2)

[2008] 7 MLJ 792.
I hold that the prosecution has failed to meet the

requirements and the prerequisites of s. 32(1) of the
Evidence Act 1950. I accordingly ruled that the
statements, ID66 and ID67 are inadmissible, as evidence
for the prosecution.
12
[22] The case makes it clear that the section is an exception to the
hearsay rule and that the onus to prove that a person cannot be found
lies squarely upon the shoulders of the prosecution.
[23] The efforts of the police in attempting to locate Albert at the

eleventh hour notwithstanding that his importance as a witness was
apparent at the outset, as testified to by SP8, is tantamount to the
proverbial closing the stable doors after the horse has bolted. Albert
being an important witness, should have been kept very much in the
radar of the police at the outset. A variety of legal methods for
ensuring this were at their disposal and yet save for making a token
attempt at the very last minute, nothing else was done.
[24] From a consideration of all the facts above and standing guided
by the principles espoused in the cases cited, I therefore find that the
prosecution has failed to satisfy this court that the provisions of
section 32(1)(i) of the Evidence Act 1950 have been satisfied. I
therefore dismiss the application by the prosecution to admit the
statement of the said Albert under section 32(1)(i) of the Evidence act
1950.
Impeachment Proceedings
[25] During the course of the prosecution case, the prosecution also
made an application to impeach the credibility of SP6, Madam
Samporanam a/p Saveridass.
13
[26] Before proceeding further, it was incumbent upon the

prosecution to first prove the statement in evidence. Here, SP6 had
herself admitted that on 1.4.2014, she had given a statement to the
investigating officer of the case, Puan Nurul Asyikin. This was despite
testifying that she could not read the statement and that the police had
not explained the contents. SP6 also said that she signed the statement
in Tamil. Notwithstanding, on the evidence, I was satisfied that she
had indeed admitted making the statement and that the prosecution
had proven the statement in evidence. The prosecution had also, albeit
after an initial omission, properly tendered in evidence the statement
made by SP6 by marking it as an exhibit.
[27] After highlighted copies of her statement under section 112 of

the Criminal Procedure Code (CPC) was extended to me and the parts
relevant to the application were drawn to me as compared with her
evidence on oath, I allowed the application of the prosecution. This
was in line with the procedure for impeachment proceedings contained
in section 155 of the Evidence Act 1950 and the time honoured
pronouncement of Taylor J in the case of Muthusamy v. Public
Prosecutor [1948] MLJ 57.
[28] Section 155 of the Evidence Act 1950 reads:
155. Impeaching credit of witness
The credit of a witness may be impeached in the

following ways by the adverse party or, with the consent
14
of the court, by the party who calls him:
(c) by proof of former statements inconsistent with any

part of his evidence which is liable to be contradicted
Section 155 must be read with section 145 which reads:
145. Cross-examination as to previous statements in

writing
(1) A witness may be cross-examined as to previous

statements made by him in writing or reduced into
writing, and relevant to matters in question in the suit or
proceeding in which he is cross-examined, without the
writing being shown to him or being proved; but if it is
intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to
those parts of it which are to be used for the purpose of
contradicting him.
(2) If a witness, upon cross-examination as to a previous

oral statement made by him relevant to matters in
question in the suit or proceeding in which he is cross-
examined and inconsistent with his present testimony,
does not distinctly admit that he made such statement,
proof may be given that he did in fact make it; but before
proof can be given, the circumstances of the supposed
statement, sufficient to designate the particular
occasion, shall be mentioned to the witness, and he shall
be asked whether or not he made such statement.
15
[29] In Muthusamy v. Public Prosecutor (supra), it was held:
The proper way to apply the sections is this. On the

request of either side, the Court reads the former
statement. If there is no serious discrepancy the Court so
rules and no time is wasted. The first necessity is to read
it with the confident expectation that it will be different
from the evidence but looking judicially to see whether
the difference really is so serious as to suggest that the
witness is unreliable.
Differences may be divided into four classes:-
(a) Minor differences, not amounting to discrepancies;
(b) Apparent discrepancies;
(c) Serious discrepancies;
(d) Material contradictions.
Minor differences are attributable mainly to differences

in interpretation and the way in which the statement was
taken and sometimes to differences in recollection. A
perfectly truthful witness may mention a detail on one
occasion and not remember it on another. A mere
omission is hardly ever a discrepancy. The police
statement is usually much briefer than the evidence. Both
the statement and the evidence are usually narratives
16
reduced from question and answer. The witness is not

responsible for the actual expressions used in either, and
all the less so where he does not speak English.
If the police statement gives an outline of substantially

the same story there being no apparently irreconcilable
conflict between the two on any point material to the
issue, the Magistrate should say at once The difference
is not such as to affect his credit and hand the statement
back.
If, however, the difference is so material as probably to

amount to a discrepancy affecting the credit of the
witness, the Court may permit the witness to be asked
whether he made the alleged statement. If he denies
having made it, then either the matter must be dropped
or the document must be formally proved, by calling the
writer or, if he is not available, by proving in some other
way that the witness did make the statement.
If the witness admits making the former statement, or is

proved to have made it, then the two conflicting versions
must be carefully explained to him, preferably by the
Court, and he must have a fair and full opportunity to
explain the difference. If he can, then his credit is saved,
though there may still be doubt as to the accuracy of his
memory. This procedure is cumbersome and slow and
17
therefore should not be used unless the apparent

discrepancy is material to the issue.
[30] The material parts of the statement of SP6 as compared to her

evidence on oath is as follows:
i) In her statement to the police, SP6 said;
Kunci mangga ada 1 sahaja. Seelan yang selalu pegang

itu kunci.
In Court on oath, SP6 gave evidence as follows;
Saya, Gunaseelan dan Albert pegang kunci stor.
Confronted with both contradictions, she explained in

Court;
Saya selalu lupa dan saya silap beritahu IO. Saya lupa
sebab masa itu saya takut. Yang saya cakap betul di
Mahkamah.
ii) In her statement to the police, SP6 said;
Saya tidak tahu di mana kunci pondok tersebut Seelan

letak. Dia yang pegang. Saya tidak tahu apa apa
mengenai kunci pondok tersebut.
In Court, SP6 said;
Gunaseelan simpan kunci dia di dalam stor. Dirujuk
18
gambar pintu stor [Ekshibit P1[6]], biasa kunci di simpan

di atas pintu atau di dalam almari di sebelah pintu.
Upon being confronted, SP6 explained;
Saya tidak ingat apa yang saya beritahu IO. Saya tidak
setuju.
Tidak mungkin saya lupa.
[31] At the conclusion of the impeachment proceedings and the

explanation from SP6 as to the reasons for the contradictions, I
suspended the assessment of her credibility until I could assess it
together with the rest of the evidence at the appropriate stage at the
end of the prosecution case. See Dato Mokhtar Hashim & Anor v.
Public Prosecutor [1983] 2 MLJ 232 and also Public Prosecutor v.
Abdul Kudus bin Japlus [1988] 3 MLJ 310.
C) DUTY OF THE COURT AT THE END OF THE PROSECUTION

CASE
[32] Section 180(1) of the Criminal Procedure Code (CPC) stipulates

that when the case for the prosecution is concluded the Court shall
consider whether the prosecution has made out a prima facie case
against the accused. The duty upon the court at that stage has also
been the subject of judicial consideration in the cases of PP v. Dato
Seri Anwar Bin Ibrahim (No.3) [1999] 2 AMR 2017; [1999] 2 MLJ 1,
Looi Kow Chai &Anor v. PP [2003] 2 AMR 89, Balachandran v. PP
[2005] 1 CLJ 85 and PP v. Mohd Radzi Bin Abu Bakar [2005] 6 AMR
19
203 respectively. They all adopt a common stand, and that is that the
evidence at the close of the case for the prosecution must be subjected
to maximum evaluation in order to determine whether a prima facie
case is made out that would justify a court in calling for the defence
of the accused. The phrase prima facie case itself has not been
statutorily defined in the above section. However, it has been the
subject of judicial pronouncement. In the case of Dato Seri Anwar
bin Ibrahim (supra), His Lordship Augustine Paul J (as he then was)
had this to say on the meaning of the phrase prima facie case:
The meaning of prima facie case in s. 180(1) of the

Criminal Procedure Code must be understood in the
context of a non-jury trial. A prima facie case arises
where the evidence in favour of a party is sufficiently
strong for the opposing party to be called on to answer.
The evidence adduced must be such that it can be
overthrown only by rebutting evidence by the other side.
Taken in its totality, the force of the evidence must be
such that, if unrebutted, it is sufficient to induce the
court to believe in the existence of the facts stated in the
charge or to consider its existence so probable that a
prudent man ought to act upon the supposition that those
facts existed or did happen. As this exercise cannot be
postponed to the end of the trial a maximum evaluation
of the credibility of the witnesses must be done at the
close of the case against the prosecution before the court
20
can rule that a prima facie case has been made out in
order to call for defence. Be that as it may, I am unable
to agree with the defence submission that this means that
the prosecution must prove its case beyond reasonable
doubt at that stage. A case is said to have been proven
beyond a reasonable doubt only upon a consideration
and assessment of all the evidence (see Canadian
Criminal Evidence (3rd Ed).thus, a prima facie case
as prescribed by the new section 180(1) of the Criminal
Procedure Code must mean a case which if unrebutted
would warrant a conviction. (emphasis added)
[33] In Looi Kow Chai v. Public Prosecutor [2003] 2 MLJ 65, Gopal
Sri Ram JCA (as he then was) speaking for the Court of Appeal had
this to say:
In our respectful view, the correct test to be applied in

determining whether a prima facie case has been made
out under s. 180 of the CPC (and this would apply to a
trial under s. 173 of the CPC) is that as encapsulated in
the judgment of Hashim Yeop Sani FJ (as he then was) in
Dato Mokhtar bin Hashim & Anor v. Public Prosecutor
[1983] 2 MLJ 232 at p 270:
To summarize, it would therefore appear that having

regard to the prosecution evidence adduced so far, a
prima facie case has not been established against Nordin
Johan and Aziz Abdullah, the second accused and the
21
fourth accused which, failing their rebuttal, would

warrant their conviction. In other words if they elect to
remain silent now (which I hold they are perfectly
entitled to do even though they are being tried under the
Emergency Regulations) the question is can they be
convicted of the offence of section 302 read with section
34 of the Penal Code? My answer to the question is in
the negative.
We are confident in the view we have just expressed

because we find nothing in the amended s. 180(1) of the
CPC that has taken away the right of an accused person
to remain silent at the close of the prosecution case.
Further we find nothing in the legislative intention of
Parliament as expressed in the language employed by it
to show that there should be a dual exercise by a judge
under s. 180 when an accused elects to remain silent as
happened in Pavone v. Public Prosecutor [1984] 1 MLJ
77. In other words we are unable to discover anything in
the language of the recently formulated s. 180 that
requires a judge sitting alone first to make a minimum
evaluation and then when the accused elects to remain
silent to make a maximum evaluation in deciding whether
to convict or not at the close of the prosecution case.
It therefore follows that there is only one exercise that

a judge sitting alone under s. 180 of the CPC has to
undertake at the close of the prosecution case. He must
subject the prosecution evidence to maximum
22
evaluation and to ask himself the question: if I decide

to call upon the accused to enter his defence and he
elects to remain silent, am I prepared to convict him on
the totality of the evidence contained in the prosecution
case? If the answer is in the negative then no prima
facie case has been made out and the accused would be
entitled to an acquittal. (emphasis added)
[34] It is therefore evident that the expected standard to which a trial

court should hold the prosecution to is that of a maximum evaluation
of the evidence of all their witnesses. This exercise necessarily
involves the court in subjecting all the evidence of the prosecution
witnesses to strict curial scrutiny. The credibility of the testimony of
all the witnesses for the prosecution must be scrutinised and evaluated
with a fine toothcomb. Should more than one inference arise as a
result of this exercise, the one favourable to the accused must be
adopted.
D) EVALUATION OF PROSECUTION CASE
Ingredients of the offence of trafficking
[35] In order for the prosecution to make out a prima facie case in
respect of the charges against the accused, it is incumbent on them to
prove the following ingredients. Firstly, that the drugs are dangerous
drugs within the meaning and definition of the Dangerous Drugs Act
1952 (DDA). Secondly, that the accused was in possession of the
impugned drugs. Thirdly, that the accused was trafficking in the drugs.
i) The drugs are dangerous drugs within the meaning and

definition of the DDA
23
[36] The results of the analysis conducted by SP4 and the Chemist
Report dated 17.7.2014 confirmed that the seized exhibit was
cannabis having a nett weight of 880 grams as defined in section 2 of
the DDA.
[37] The Federal Court case of Munusamy Vengadasalam v. PP

[1987] CLJ (Rep) 221 held as follows:
We are therefore of the view, that in this type of cases

where the opinion of the chemist is confined only to the
elementary nature and identity of the substance, the Court
is entitled to accept the opinion of the expert of its face
value, unless it is inherently incredible or the defence
calls evidence in rebuttal by another expert to contradict
the opinion. So long as some credible evidence is given by
the chemist to support his opinion, there is no necessity
for him to go into the details of what he did in the
laboratory, step by step.
[38] Having heard the evidence of SP4, I do not find the evidence to
be in the category of cases that can be said to be inherently incredible.
I therefore accepted the evidence given as sufficiently proving the
nature and weight of the drugs seized. I also found that there was no
break in the chain of the drug exhibits from the time they were seized
right up to the time they were produced in court and duly identified.
ii) The accused was in possession of the said drugs
[39] In a charge of trafficking in dangerous drugs, possession is the

most important ingredient. Unless there is direct evidence of
24
trafficking, it is a necessary step towards proving trafficking. The

prosecution can prove possession either by direct evidence or
employing in aid the presumption under section 37(d) of the
Dangerous Drugs Act 1952 (DDA).
[40] In relation to proof of direct possession, the law was taken as

settled as early as 1949 that possession in order to incriminate a
person, must have the following characteristics:
(a) the possessor must know the nature of the thing possessed;
(b) he must have a power of disposal over it and;
(c) he must be conscious of his possession of the thing.
[41] See Toh Ah Loh And Mak Thim v. Rex [1949] MLJ 54.
[42] In Leow Nghee Lim v. Reg [1956] 1 MLJ 28, Taylor J explained
possession as follows:
The word "possession" is a vague and general word

which cannot be closely defined. Without at least
general knowledge there cannot be possession but there
can be possession without full and exact knowledge.
In Chan Pean Leon .v. PP [1956] MLJ 237, Thompson J

said:
. possession itself as regards the criminal law is

described as follows in Stephens Digest (9th Edition pg
304):
A moveable thing is said to be in the possession of a
25
person when he is so situated with respect to it that he

has the power to deal with it as owner to the exclusion of
all other persons, and when the circumstances are such
that he may be presumed to intend to do so in case of
need.
To put it otherwise, there is a physical element and a

mental element which must both be present before
possession is made out. The accused must not only be so
situated that he can deal with the thing as if it belonged
to him, for example have it in his pocket or have it lying
in front of him on a table. It must also be shown that he
had the intention of dealing with it as if it belonged to
him should he see any occasion to do so, in other words,
that he had some animus possidendi. Intention is a
matter of fact which in the nature of things cannot be
proved by direct evidence. It can only be proved by
inference from the surrounding circumstances. Whether
these surrounding circumstances make out such intention
is a question of fact in each individual case. If a watch is
in my pocket then in the absence of anything else the
inference will be clear that I intend to deal with it as if it
were my own and accordingly I am in possession of it.
On the other hand, if it is lying on a table in a room in
which I am but which is also frequently used by other
people then the mere fact that I am in physical proximity
to it does not give rise to the inference that I intend to
deal with it as if it belonged to me. There must be some
26
evidence that I am doing or having done something with

it that shows such an intention. Or it must be clear that
the circumstances in which it is found shew such an
intention. It may be found in a locked room to which I
hold the key or it may be found in a drawer mixed up
with my own belongings or it may be found, as occurred
in a recent case, in a box under my bed. The possible
circumstances cannot be set out exhaustively and it is
impossible to lay down any general rule on the point. But
there must be something in the evidence to satisfy the
Court that the person who is physically in a position to
deal with the thing as his own had the intention of doing
so. (emphasis added)
[43] In PP v. Muhamad Nasir Bin Shaharuddin & Anor [1994] 2 MLJ

576, possession was discussed in the following manner:
Possession is not defined in the DDA. However, it is

now firmly established that to constitute possession, it is
necessary to establish that; (a) the person had
knowledge of the drugs; and (b) that the person had
some form of control or custody of the drugs. To prove
either of these two requirements, the prosecution may
either adduce direct evidence or it may rely on the
relevant presumptions under s. 37 of the DDA.
[44] It is clear from the above line of authorities that a mental

element is needed in order to prove possession. Mens rea of course
cannot be proven by direct evidence as it is the state of a persons
27
mind. Such mental element therefore can only be deduced from

inference from other facts.
[45] The evidence of the prosecution was that while the physical
examination was conducted on the Accused his reaction was one of
surprise terkejut and that he was silent. Upon the police discovering
the incriminating exhibits, the reaction of the Accused was said to be
one of fear and trembling terketar-ketar when answering the
questions posed by SP5. The reaction of an accused is of course
admissible and relevant under the provisions of sections 8 and 9 of the
Evidence Act 1950 (EA).
[46] Section 8 of the EA reads as follows:
8. Motive, preparation and previous or subsequent

conduct
(1) Any fact is relevant which shows or constitutes a motive

or preparation for any fact in issue or relevant fact.
(2) The conduct of any party, or of any agent to any party,
to any suit or proceeding in reference to that suit or
proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence
against whom is the subject of any proceeding, is relevant
if the conduct influences or is influenced by any fact in
issue or relevant fact, and whether it was previous or
subsequent thereto.
[47] Section 9 of the EA reads:
9. Facts necessary to explain or introduce relevant facts
Facts necessary to explain or introduce a fact in issue or
28
relevant fact, or which support or rebut an inference

suggested by a fact in issue or relevant fact, or which
establish the identity of anything or person whose identity
is relevant, or fix the time or place at which any fact in
issue or relevant fact happened or which show the relation
of parties by whom any such fact was transacted, are
relevant so far as they are necessary for that purpose.
[48] Under section 8 the conduct of an accused, for example,

absconding, nervousness, restlessness and other like behaviour is
admissible as a relevant fact. Under section 9, facts which support or
rebut an inference suggested by such conduct is relevant. The case
frequently relied upon as authority for the admission of reaction or
conduct of an accused is the Federal Court case of Parlan bin Dadeh
v. Public Prosecutor [2008] 6 MLJ 19 where it was held as
follows:
The law relating to evidence of conduct is thus patent. If

there is no evidence to show that the conduct is influenced
by any fact in issue or relevant fact as required by s. 8
then it is not admissible as it would then be an equivocal
act justifying inferences favourable to the accused being
drawn. If it satisfies the requirement of s. 8 it is
admissible. It must be observed that the degree of proof
required to establish evidence of conduct would depend on
the nature of the conduct. Conduct like the flight of an
accused is a more positive act and is easily established.
On the other hand conduct like the accused looking
stunned, nervous, scared or frightened is very often a
29
matter of perception and more detailed evidence may be

required. (Emphasis added)
[49] Following from the above guidelines, the evidence that the
reaction of the Accused was one of surprise terkejut when he was
being physically examined was equivocal at best. So was the reaction
of the Accused which was said to be one of fear and trembling
terketar-ketar when answering the questions posed by SP5 upon the
exhibits being recovered. The reaction of the Accused being surprised
or terkejut when being examined is neutral because an innocent
person may also react in a similar manner. His reaction being one of
fear and trembling terketar-ketar upon answering questions posed
after the drugs were discovered is one not out of the ordinary. An
innocent person may well react with shock and trembling upon
incriminating exhibits being discovered and then having to account for
it. I therefore find that the reaction of the Accused was not one in
which it was reasonable to infer mens rea on the part of the Accused
with respect to the drugs.
[50] Apart from this, the following evidence emerges from the
prosecution case. A key to the padlock of the store where the
offending exhibits were discovered was seized from the Accuseds
right hand immediately after SP5 asked for the key to the store room.
SP5 testified that he discovered the Accuseds National Registration
Identity Card (NRIC) in a black wallet inscribed with the words
Levis on the floor of the store room. The police also found two
Nokia mobile phones and a Blackberry mobile phone.
[51] The discovery of the key to the padlock that opened the store
30
room showed that the Accused had access inside the store room. The
discovery of the Accuseds NRIC inside the wallet found on the floor
of the store room raised an inference that the Accused had at the very
least used the store room from time to time. SP7 further testified that
that the Blackberry discovered in the store room belonged to her and
that she had given it to the Accused some 3 years ago to perform some
repairs. The overall effect of the above is that I find that it is
reasonable to infer knowledge on the part of the Accused with respect
to the drugs found.
[52] All the above pieces of evidence taken cumulatively enabled me to

come to the finding that the Accused was in actual as opposed to presumed
possession of the incriminating exhibits found in the store room.
iii) The Accused was trafficking in the drugs
[53] The nett weight of the drugs was 880 grams as testified to by the
Government chemist SP4. This enabled the statutory presumption
under section 37(da) (vi) DDA to be invoked against the Accused. The
said section in so far as it is relevant to this case reads:
37. Presumptions
In all proceedings under this Act or any regulation made

thereunder:-
(da) any person who is found in possession of:-
(vi) 200 grammes or more in weight of cannabis
..shall be presumed, until the contrary is proved, to be

trafficking in the said drug;
31
iv) Ruling in respect of impeachment proceedings against SP6
[54] The ruling in respect of the impeachment proceedings is to be

assessed as a whole together with the rest of the evidence at the
appropriate stage which here is at the close of the prosecution case.
See Dato Mokhtar Hashim & Anor v. Public Prosecutor (supra) and
also Public Prosecutor v. Abdul Kudus bin Japlus (supra). In Pitting
bin Haji Mohammed Ali v. Public Prosecutor [1979] 2 MLJ 136, it
was held that while it is for the witness to explain the alleged
discrepancy it is for the court to consider whether or not the
explanations given are satisfactory. After considering all the evidence
adduced by the prosecution, I thus proceeded to assess and evaluate
whether the explanation given by SP6 together with all the other
prosecution evidence may have saved her credibility.
[55] I find that the questions posed to SP6 were simple ones which
required no stretch of great intellectual effort to answer. With regard
to how many keys to the padlock there were, in her statement, she said
there was only one key while on oath, there now surfaced 3 keys, one
held by herself, one by Albert and one by the Accused. Her
explanation for the contradiction was that she was forgetful and
mistakenly informed the recording officer that there only existed one
key. She said that she was also scared at the time and that is why she
mistakenly informed the recording officer that there was one key in
the possession of the Accused. I find that her evidence on oath was a
clear attempt to come to the aid of the Accused who was after all her
son. The difference between her explanation on oath and that in her
statement was starkly different and under the circumstances I found it
32
to be a material contradiction. Her explanation as to the contradiction

was one that was unacceptable under the circumstances.
[56] With respect to the part in her statement that stated that she did
not know where the key to the padlock was kept whereas on oath she
testified that the key was kept by the Accused on the top of the door
or in a cupboard next to the door also was a contradiction that I found
material in nature. The difference between the two again being so
stark it can hardly be said that it was not a deliberate attempt to once
again absolve the Accused. Her explanation at first that she could not
remember what she had told the recording officer and then that she
denied she could have forgotten what she said, did not inspire
confidence to say the least. I therefore found a material contradiction
existed and her explanation for the contradiction unacceptable. I
therefore find that the evidence of SP6 has been successfully
impeached.
[57] On the effect of such a finding, the case of Matthew Lim v.

Game Warden, Pahang [1960] 1 MLJ 89 held:
Once this has been done and it is proved that the

previous statement when compared with the evidence
given in Court contains material inconsistencies the
witnesss credit is impeached and his evidence becomes
worthless because the witness himself has been shown to
be unworthy of credit.
[58] In Koay Chooi v. Regina [1955] 1 MLJ 209, it was held:
What is perhaps more important is that this witness
33
having been discredited by proof of an entirely

inconsistent statement to the Police the learned
Magistrate appears to have given some weight to his
evidence, which in my opinion he should not have done.
[59] See also Public Prosecutor v. Munusamy [1980] 2 MLJ 133.
[60] In accordance with the above authorities that the evidence of a

successfully impeached witness becomes worthless, I therefore hold
that the evidence of SP6 had been rendered worthless and therefore I
have not taken into consideration her testimony in the evaluation of
the prosecution case.
[61] Upon the conduct of a maximum evaluation of the prosecution

case, I found that all the necessary ingredients under the charge under
section 39B(1)(a)DDA had been proven. I accordingly found that a
prima facie case had been proven by the prosecution and I accordingly
called for the defence of the Accused.
[62] After the three alternatives consequent upon a finding of a prima

facie case was explained, the Accused elected to give sworn evidence.
A) DEFENCE CASE
[63] The Accused testified that he has his own room in the house at
the premises at No. 1971 PBA-A, Jalan Tokong Kampung Jawi, 14200
Sungai Bakap (said premises) and he lives there with his mother,
brother and nephew. Therefore his testimony is that he has no reason
to stay in the said store room.
[64] The Accused also testified that he runs a poultry and meat
34
business with Albert and that the place of business is at the side of his
house. He said that the storeroom is never locked because many
people go in and out and store their things there. Among the items
stored there are things belonging to his family as well as to Albert.
[65] He testified that Albert frequently sleeps in the storeroom. The

Accused pointed out during his testimony that from the photographs
tendered, Alberts clothings can be seen hanging on the fence. He
testified that in photograph Exhibit P1 (9) at the place marked x, a
blue and red track bottom shown on the bottom on the floor belongs to
Albert and he has seen him wear it before. The Accused testified that
Exhibits P7, P7C and P7D which are a pair of blue jeans, a white long
sleeved shirt (An-Nur) brand, and a pair of black long trousers seized
belong to Albert as he has seen him wear them before. The Accused
said that there were also some personal items belonging to Albert
lying around the store room.
[66] The Accused said that things shown in the photographs Exhibit
P1 (10) to (13) outside the store room are disused things belonging to
his family and also to Albert. When referred to Exhibit P2(6) to (9),
he said that these are things found outside the store and the black
stripped trousers found in the pail for storing paint did not belong to
him but to Albert as he had seen him wearing it before.
[67] The Accused further testified that the key to the padlock to the
storeroom is kept on a wooden beam alang in front of the door to the
storeroom which he said is shown in the photograph marked as exhibit
P1(6). He said besides this key, Albert also has a duplicate key and
another duplicate key was kept in the house. This was to enable
35
anyone who wanted to place things for storage there to easily access
the store room.
[68] He testified that the store room is also for the occupants of the
house to store things. He testified that apart from the things which
were stored there, there was also a mattress, pillow, and a fan. These
items are there because Albert frequently stays and spends the night in
the store room several nights a week. He does this, according to the
Accused, because he has family problems.
[69] The Accused also testified that besides himself, his family
members and Albert, Alberts friends including locals and foreigners
also had dropped by the store room to visit Albert to rest there in the
afternoons and at night after work. The Accused further testified that
Alberts car was also visible in the photograph Exhibit P1 (1).
[70] He testified that the 3 pieces of clothings which the police

asked him to try on at the police station was tight, short and did not fit
him. In addition he had told the investigating officer who had asked
him to try the clothings that they belonged to Albert.
[71] Finally, the Accused said that the 3 hand phones recovered
belonged to Albert. The Blackberry, exhibit P26, he said was not the
one handed to him by SP7 as he had already sold it in order to buy a
new hand phone.
F) DUTY OF THE COURT AT THE CONCLUSION OF THE

TRIAL
[72] The duty of a trial court at the conclusion of the defence case is
set out in section 182A of the Criminal Procedure Code which reads as
follows:
36
182A - Procedure at the conclusion of the trial
(1) At the conclusion of the trial, the Court shall

consider all the evidence adduced before it and shall
decide whether the prosecution has proved its case beyond
reasonable doubt.
(2) If the Court finds that the prosecution has proved its
case beyond reasonable doubt, the Court shall find the
accused guilty and he may be convicted on it.
(3) If the Court finds that the prosecution has not proved
its case beyond reasonable doubt, the Court shall record
an order of acquittal.
[73] In Md Zainudin bin Raujan v. Public Prosecutor [2013] 3 MLJ

773, the Federal Court observed as follows:
At the conclusion of the trial, s. 182A of the Criminal

Procedure Code imposes a duty on the trial court to
consider all the evidence adduced before it and to decide
whether the prosecution has proved its case beyond
reasonable doubt. The defence of the accused must be
considered in the totality of the evidence adduced by the
prosecution, as well as in the light of the well - established
principles enunciated in Mat v. Public Prosecutor [1963]
1 MLJ 263 with regard to the approach to be taken in
evaluating the evidence of the defence.
[74] Section 182A states that all the evidence must be considered
by the court. It is to be noted that emphasis has been laid on the
phrase all. In Prasit Punyang v. Public Prosecutor [2014] 4MLJ 282
it was held as follows:
37
In accordance with the provisions of s. 182A(1) of the

Criminal Procedure Code, it is the bounden duty of the
learned JC, at the conclusion of the trial, to consider all
the evidence adduced before him and shall decide
whether the prosecution has proved its case beyond
reasonable doubt. The legislature has advisedly used the
term all the evidence. The emphasis must be on the word
all.
[75] What amounts to a reasonable doubt itself is not defined in

section 182A of the Criminal Procedure Code. However, there is a
plethora of case law as to its meaning. In Public Prosecutor v. Saimin
[1971]2 MLJ 16, it was held by Sharma J that:
It is not mere possible doubt, because everything

relating to human affairs and depending upon moral
evidence is open to some possible or imaginary doubt. It
is that state of the case which after the entire
comparison and consideration of all the evidence leaves
the minds of the jurors in that condition that they cannot
say they feel an abiding conviction to a moral certainty
of the truth of the charge.
[76] In the case of Liew Kaling & Ors v. Public Prosecutor [1960]
MLJ 306, Thompson CJ referred to the quantum of proof required to
prove a case beyond reasonable doubt when he quoted the judgment
of Denning J (as he then was) in the case of Miller v. Minister of
Pensions as follows:
The degree is well settled. It need not reach certainty,

but it must carry a high degree of probability. Proof
38
beyond reasonable doubt does not mean proof beyond the

shadow of doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect
the course of justice. If the evidence is so strong against
a man as to leave only a remote possibility in his favour
which can be dismissed with the sentence of course it is
possible, but not in the least probable the case is proved
beyond reasonable doubt but nothing short of that will
suffice.
[77] Denning J went on to observe further in Millers case:
That evidence that is in the least probable must be

evidence that is credible, plausible or logical such that a
reasonable person, having regard to the ordinary course
of nature or natural events, human conduct, and in the
particular circumstances of the particular case, would
accept it as to act upon it as having occurred, or as
truthful or accurate; and not a doubt that could, with the
application of some ingenuity, be conjured up,
envisioned or visualised in a story.
[78] In the case of Public Prosecutor v. Datuk Haji Harun bin Haji
Idris & Ors [1977] 1 MLJ 180, Abdoolcader J (as he then was)
explained the phrase reasonable doubt as follows:
It is not necessary for the defence to prove anything and

all that is necessary for the accused to do is to give an
explanation that is reasonable and throws a reasonable
39
doubt on the case made out for the prosecution. It cannot

be a fanciful or whimsical or imaginary doubt, and in
considering the question as to whether a reasonable
doubt has been raised, the evidence adduced by and the
case for the defence must be viewed in at least some
amount of light, not necessarily bright sunlight, but
certainly not against the dark shadows of the night.
[79] It can be summarised therefore that the phrase reasonable

doubt excludes fanciful or imaginary doubts or stories that are so
obviously conjured up so as not to be in accord with the ordinary
course of nature or human conduct when viewed and appraised from
the test of reasonableness. The foregoing of course, are only
guidelines and the court must apply these according to all the
circumstances of the case at hand.
[80] Aside from the above, the correct thought process and stages
that should be followed by a trial court in the assessment and
evaluation of the defence evidence is that as encapsulated in the time
honoured decision of Mat v. Public Prosecutor [1963] 29 MLJ 263
where it was held by Suffian J (as he then was) as follows:
The position may be conveniently stated as follows:
(a) If you are satisfied beyond reasonable doubt as to

the accuseds guilt Convict.
(b) If you accept or believe the accuseds explanation

Acquit.
(c) If you do not accept or believe the accuseds
40
explanation Do not convict but consider the next

steps below.
(d) If you do not accept or believe the accuseds

explanation and that explanation does not raise in
your mind a reasonable doubt as to his guilt
Convict.
(e) If you do not accept or believe the accuseds

explanation but nevertheless it raises in your mind
a reasonable doubt as to his guilt Acquit.
[81] The approach in Mat v. Public Prosecutor was judicially

endorsed by the Federal Court as being the correct one to adopt when
evaluating the evidence of the defence case in Public Prosecutor v.
Mohd Radzi Bin Abu Bakar [2005] 6 MLJ 393, when it held:
For the guidance of the courts below, we summarise as

follows the steps that should be taken by a trial court at
the close of the prosecutions case:
(i) the close of the prosecutions case, subject the

evidence led by the prosecution in its totality to a
maximum evaluation. Carefully scrutinise the
credibility of each of the prosecutions witnesses.
Take into account all reasonable inferences that
may be drawn from that evidence. If the evidence
admits of two or more inferences, then draw the
inference that is most favourable to the accused;
(ii) ask yourself the question: If I now call upon the
41
accused to make his defence and he elects to

remain silent am I prepared to convict him on the
evidence now before me? If the answer to that
question is Yes, then a prima facie case has been
made out and the defence should be called. If the
answer is No then, a prima facie case has not
been made out and the accused should be
acquitted;
(iii) after the defence is called, the accused elects to

remain silent, then convict;
(iv) after defence is called, the accused elects to give

evidence, then go through the steps set out in Mat
v. Public Prosecutor [1963] MLJ 263.
[82] Following from the above, if the court does not accept or believe
the defence raised by the accused it must not convict but must proceed
a stage further by considering whether the defence evidence has raised
in the mind of the court a reasonable doubt as to the guilt of the
accused. If it does, then the accused is nevertheless entitled to an
acquittal.
[83] In the event that a statutory presumption under the DDA were to
arise as in this case, it is also incumbent upon the accused to rebut
such presumption on a balance of probabilities.
[84] In the light of the above well-defined principles, this court being
so guided, proceeded to undertake the evaluation of the evidence for
the defence.
42
G) ANALYSIS OF THE DEFENCE CASE
[85] It is fairly evident that the thrust of the defence is that the said
Albert is the actual perpetrator in this affair and that the subject
matter of the charge which are the offending exhibits in fact belong to
Albert.
[86] At first blush, it is perhaps all too easy to dismiss this defence
as being fairly obvious and transparent in that it was the most
convenient defence to adopt in light of the fact that Albert was not to
be found anywhere. However, an examination of the facts as a whole
must nevertheless be undertaken to see whether the defence though
not capable of belief has nevertheless raised a reasonable doubt in
which case the Accused is entitled to be acquitted. See Mat v. Public
Prosecutor (supra). In this case, the Accused also bears the onus of
rebutting on balance of probabilities the statutory presumption of
trafficking under section 37(da)(vi) DDA.
[87] In Public Prosecutor v. Iskandar bin Mohamad Yusof [2006] 5

MLJ 559, it was held by Suriyadi J (as he then was):
[10] As said above when I called the defence I was

satisfied that a prima facie case had successfully been
established by the prosecution. Factually and legally the
prosecution had satisfied all the ingredients and
requirements of s. 180 of the Criminal Procedure Code.
Before arriving at that conclusion as required by the latter
section, and as stated earlier, a maximum evaluation of the
evidence was conducted by me. Needless to say that
evaluation was totally one sided, in that it was
substantially the evidence adduced by the prosecution,
43
though peppered by the accused persons suggestions and

answers elicited from witnesses in the course of the cross
examination. Naturally, at that stage, no sworn testimony
of the accused person was made available that could
prematurely punch holes in the prosecutions story.
Naturally too, whatever was suggested by the accused
person that could be helpful to him inevitably would
receive unhelpful answers. With such a scenario, the
prosecution literally sauntered into the defence stage.
[11] At the defence stage, a different scenario

expressed itself. The prosecutions story had to be re-
evaluated maximum-like, but this time padded by the
additional defences version, which was given under
oath. At the end of the accused persons case, unless
the prosecution succeeded at convincing me beyond
reasonable doubt, he must be acquitted. All the latter
needed to do was to weaken the prosecutions case on a
balance of probability. (emphasis added)
[88] Therefore the whole of the defence case must now be evaluated
in the light of and as against the earlier evidence given by the
prosecution, something that was not possible at the close of the
prosecution case.
[89] Firstly, is the assertion of the Accused that the store room is a
place amongst others, used for storing disused things by the Accused
and his family members. During the course of cross examination of
SP5, Inspector Mohd Fadly B. Shamsuddin, he had admitted that the
store room was used by the occupiers of the house at the said premises
44
for storage of disused items. An inspection of the photographs

tendered would also easily enable one to come to the conclusion that
the store room was a place for storage as various items can be seen
strewn around the place.
[90] Secondly, is the Accuseds contention that as he had his own

room in the family house, there was no need for him to stay or to
occupy the store room. SP5 admitted as much when he testified that
the Accused stayed at the house. It is reasonable to deduce as much
as it is a matter of common sense that if the Accused had his own
room in the house, it is unlikely that he would occupy or stay in the
store room either temporarily or with any degree of permanency.
[91] The Accused also testified that there was unrestricted access to
the store room as there was no fencing around the house but there was
fencing around the store room. A perusal of the photographs shown
would reveal that the fencing to the store room was in some parts knee
high at the most and thereby not forming any form of obstruction to
anyone who might want to approach the store room. This piece of
evidence was also agreed to by SP5 who said that the house was not
fenced while the store room was, albeit by a very short fence. Access
to the store room was therefore not inhibited in any way.
[92] Next, the Accused testified that the key to the padlock to the
store room is kept on the wooden beam alang, in front of the door to
the store room. He said that the beam is visible in photograph Exhibit
P1 (6) and upon inspection this proved to be the case. It is here that
there is a divergence of evidence as it is the prosecution case that the
key was recovered from the right hand of the Accused during the raid.
45
[93] SP5 testified that when he asked for the key to the padlock, there
ensued an argument between Albert and the Accused, after which he said
that the Accused produced a key which he then seized from his right
hand. SP5 had never mentioned where this key was produced from. Was
the key kept by the Accused at that point of time? If so, where was the
key being kept, was it in his trousers pocket, his shirt pocket, hanging
around his neck or was he holding the key all the while?
[94] In light of the fact that there was no evidence forthcoming from
the prosecution as from exactly where the Accused produced the key,
it is not altogether inconceivable that the Accuseds version that the
key was kept on top of the wooden beam was true or at the very least
capable of raising a reasonable doubt. It is also possible that the
Accused in fact had taken the key from the wooden beam on top of the
door to the store room as he had testified.
[95] Even if this were not the case, the Accused had testified that
there were duplicates kept in the house and by Albert. As Albert was
nowhere to be found, this version of course cannot be ascertained with
absolute certainty. Furthermore, there is no evidence that the police
had conducted any search in the house premises to look for the
duplicate. This lack of investigation on the part of the police ought
not to prejudice the Accused as he may well have, due to this
omission, lost a fair chance of being acquitted.
[96] In the absence of this, what the Accused said about there being
in existence a duplicate key in the house in order to enable the
occupants to store things there with ease cannot be dismissed as
something not possible to fathom. In any event, this gives rise to more
than one inference or possibilities and the Accused is to be given the
benefit of doubt in the event.
46
[97] The fact that an argument ensued between the Accused and
Albert when SP5 asked for the key is also not without significance.
What was the argument about? Of course there is no explanation from
SP5 and the police because the conversation was in Tamil and there is
no evidence to suggest that SP5 was conversant in that language. At
the very least, it is not altogether impossible to infer from the
prevailing circumstances that the argument between the two was
regarding the key. In fact, SP5 in his evidence when asked what the
argument was about, said it was about the key. SP5 went on to say that
Albert did not know the whereabouts of the key and neither did the
Accused at the time although how SP5 was able to derive such
knowledge unless he understood Tamil is not apparent.
[98] It is equally not altogether impossible under the circumstances

to infer that Albert knew about the key and where it was kept. This in
turn would make it also reasonable to infer that Albert therefore had
equal access to the store room.
[99] The Accused said further that besides storage of disused things,
there was also a mattress, pillow and a fan in the store. This suggests
somewhat strongly that the place was being occupied by someone. SP5
also testified that from the presence of clothings and the pillow, he
believed that it was being occupied by someone who slept there. SP5
further said that he agreed to the suggestion that the drugs which
formed the subject matter of the charge in this case also belonged to
Albert as he had pleaded guilty to possession of the drugs in the paint
storage pail outside the store room.
[100] He also agreed that Albert had many cases before this and that
they were narcotic cases and that he was a suspect in this case and an
important witness. In re-examination, SP5 candidly said that as Albert
had pleaded guilty to the possession of the drugs found outside the
store room, there was a possibility that the drugs found inside the
47
store room also belonged to him.
[101] SP8, the investigating officer, was also very candid when she
admitted that both Albert and the Accused had access to the drugs
both in and out of the store room.
[102] Can the evidence by the Accused be ignored as being self-

serving and therefore not capable of belief? It was given in evidence
during the course of the prosecution case that Albert was charged
along with the Accused for dangerous drugs found inside a paint
storage pail together with the Accused. That charge for possession of
2 slabs of cannabis was admitted to by Albert at the Sungai Jawi
Magistrates Court after which he was sentenced to a fine while the
case against the Accused did not proceed thereafter. It was also telling
that the manner in which the drugs in the charge against the Accused
was wrapped and packed resembled the drugs that was the subject
matter of the charge at the Magistrates Court. They were also stored
in similar type containers.
[103] SP8 agreed that Albert was an important witness in this case and
that if he was not guilty, he would not have fled. SP5 further agreed to
the suggestion that the drugs recovered may have belonged to the said
Albert. She said that Albert had other cases in Seberang Perai Selatan.
SP8 then testified that when she recorded the statement of the Accused,
he said that he did not know or admit to the drugs in question.
[104] In respect of the 2 Nokia hand phones recovered from the store
room, no link can be made to the Accused as SP8 said that she did not
carry out investigation in respect of the simcards. In respect of the
Blackberry hand phone, although SP7 was called to identify it as the
one she had given to the Accused to repair, she also admitted that if
she were shown a similar colour and model, she would not be able to
tell the difference between the two.
48
[105] She agreed that she is not one hundred per cent sure that the
Blackberry produced in court was the one she had given the Accused.
This makes the assertion by the Accused that the hand phones
belonged to Albert as not inconceivable at all.
[106] The other piece of evidence against the Accused is that his NRIC
was said to have been found in a wallet lying on the floor in the store
room. No further evidence was led as to whether the wallet had other
contents. Was there money and if so how much? Was there a driving
licence? Were there photographs? I do not think I would be met with
much objection if I were to surmise that these are the usual things
normally kept in a wallet. It therefore strikes me as odd that nothing
other than the NRIC of the Accused was found in the said wallet.
[107] Another matter worthy of consideration, given ordinary human

behaviour, is why was such an important piece of document such as a
NRIC found on the floor to the store room and not on the person of
the Accused which is where ordinary human beings would be most
likely to keep it. This leads me to entertain some doubt as to this part
of the prosecution evidence. It equally seems to be at odds with
ordinary human behaviour for someone who had the knowledge that
dangerous drugs were concealed in the paint pail inside the store room
to have placed his wallet containing of all items his NRIC next to or
in the same place as the dangerous drugs.
[108] At least two inferences are possible here. One is that the
Accused occupied the room and therefore it is only natural that his
personal belongings would be found there including his NRIC, a
possibility that has already been considered and found doubtful in the
light of the fact that he had his own room in the house.
[109] The other possible inference is that if it was true that the
wallet was found on the floor to the store room and contained the
49
Accuseds NRIC, he had no knowledge of the presence of dangerous

drugs there as that piece of evidence would be most damning against
him should the drugs be uncovered by the police as in fact had
happened. Put another way, no reasonable person having knowledge
of the presence of drugs there would place his wallet containing of
all things, his NRIC in the store room in as conspicuous a position as
on the floor as if to invite connection between the drugs and himself.
Given the possibility of more than one inference arising, trite law
prescribes that the latter one in the Accuseds favour be adopted.
[110] The fact that the Accuseds NRIC was said to be in his wallet
found conveniently on the floor of the store room also reminds me of what
was said by Mah Weng Kwai JCA in the Court of Appeal case of Public
Prosecutor v. Norhazwan Abd Wahab [2014] 1 LNS 275 as follows;
SP7 testified that he recovered the Respondents wallet
containing his identity card, driving licence and
Maybank ATM card, from the bag whereas the
Respondent said that it was recovered from his rear
trouser pocket. The learned trial Judge held that it was
more probable for the wallet to be recovered from the
Respondents trouser pocket as "no sane or reasonable
man would place his wallet containing his identity card
in the bag P14 knowing that the said bag contained
proscribed drugs which attract the death penalty".
While the learned trial Judge may have been a little too
dramatic when he said that the recovery of the wallet in
the bag was "too good to be true", but what it really
pares down to is that it is highly improbable for the
Respondent to place his wallet in the bag containing the
drugs unless of course he was unaware that the bag did
in fact contain the drugs, in which case then it cannot
be said that the Respondent had knowledge of the drugs
being in the bag. (emphasis added)
50
[111] My conclusion regarding the finding of the wallet and the

NRIC of the Accused is further fortified by the fact that the Search
List (P22) only makes mention of the drugs recovered but contains no
mention of the wallet as well as the hand phones and clothings. These
items are however recorded only in the Acknowledgment of Handover
List (P23) subsequently. There was no explanation forthcoming from
the prosecution regarding this omission. The result of this is that it
does raise a doubt as to the discovery of the wallet with the NRIC of
the Accused at the time of the raid. At the very least it raises two
inferences which benefit must surely go to the Accused. There could
be an altogether plausible explanation for this omission. However, it
is not for this court to fill in the gaps left by the prosecution case
more so when here, the life of the Accused quite literally hangs in the
balance.
[112] Taking all of the above evidence as a whole leads me to the

inevitable question which is whether under the circumstances, the
prosecution had proven beyond reasonable doubt that the
incriminating exhibits do in fact belong to the Accused. Put another
way, has the prosecution evidence conclusively excluded the
possibility that the incriminating drugs may belong to Albert. It is
clear from high authority that possession need not be exclusive to one
person only and that all the prosecution has to prove is possession and
not exclusive possession in the sense that only one person must have
possession of the incriminating drugs as there can be joint possession.
[113] However, does this mean that the prosecution need not exclude
the possibility of others having access to the place where the drugs
were found? The case of Public Prosecutor v. Denish a/l Madhavan
[2009] 2 MLJ 194 is often cited as authority for the proposition that
possession need not be exclusive. The source for this belief is derived
from a passage in the case by Abdul Aziz Mohamad FCJ where his
51
Lordship held as follows:
[16] Before proceeding to consider the reasons for the

Court of Appeals decision, we will say a few words
about exclusive possession. It is inappropriate to speak
of possession of an article in criminal law as exclusive
possession. One is either in possession or not in
possession, although one could be in possession jointly
with another or others. To say that the prosecution of a
drug case fails because there has been no proof of
exclusive possession is apt to convey the wrong
impression that it is only in cases where possession is
entirely with one person, that is, exclusive that a
conviction is possible. When the learned trial judge said
The accused sought to negative the proof of exclusive
possession, we take it that he meant no more than that
the respondent sought to show that he was not in
possession of the drugs because he had no knowledge of
their existence and that the drugs could have been
placed in his bags by some other person or persons.
[114] A careful reading of the above passage would indicate that

what is intended to be conveyed is that possession need not be
exclusive to the accused and that it can be joint as well. The Learned
Judge however goes further to explain as follows:
[17] The idea of exclusivity features in the meaning of

possession in criminal law as one of the elements
necessary to constitute possession. As Taylor J said in
Leow Nghee Lim v. Reg [1956] MLJ 28:
It is often said that possession must be exclusive.

This is ambiguous. Possession need not be exclusive to
the accused. Two or more persons may be in joint
52
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
no power of disposal. The statement that possession
must be exclusive is often due to confusion of the fact to
be proved with the evidence by which it is to be proved.
It is essential to keep this distinction clearly in mind,
especially when applying presumptions
[18] Thomson J in Chan Pean Leon v. Public Prosecutor

[1956] MLJ 237, said that possession for the purposes
of criminal law involves possession itself which some
authorities term custody or control and knowledge
of the nature of the thing possessed. As to possession
itself he cited the following definition in Stephens
Digest (9th Ed), at p 304), in which the exclusive element
mentioned by Taylor J appears:
A moveable thing is said to be in the possession of a

person when he is so situated with respect to it that he
has the power to deal with it as owner to the exclusion
of all other persons, and when the circumstances are
such that he may be presumed to intend to do so in case
of need.
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.
53
(Emphasis added)
[115] It is to be noticed from the above passage therefore that what

the Learned Judge had in mind was that it is inappropriate to speak of
possession as being exclusive in the sense that it must necessarily be
established by the prosecution that only the accused must be in
possession. This is apt to convey the wrong impression that possession
cannot be jointly held. There is nothing however, in the judgement to
convey the view that the necessary element of exclusivity in proving
possession has been done away with.
[116] As expressed in the judgement, the element of exclusivity that

has to be proven is the power of disposal or the power to deal with it
to the exclusion of others. I am fortified in expressing my view above
by the exhaustive treatment on this subject by En Hisyam Abdullah
alias Teh Poh Teik in his well-researched book Drugs Trafficking
And The Law. The learned author has set out to explain with his
usual brevity and clarity the elements that go to make up criminal
possession and have resorted in this endeavour to draw from
principles enunciated from the most recent decisions.
[117] In fact in Denish Madhavan itself, as observed by the learned

author, the Federal Court found such exclusivity on the facts of the
case itself from the following:
i) That the accused was the tenant of the premises;
ii) The clear confession by the accused that there were

more cannabis under the bed; and
iii) The act of the accused in taking out three bags of

cannabis from under the bed.
[118] These factors are noticeably absent in this case. A recent

decision of the Federal Court adopted a very similar approach to
54
Denish Madhavan. The Federal Court case of Siew Yoke Keong v.

Public Prosecutor [2013] 3 MLJ 630 held inter alia, the following:
[35] So, in our judgment in the circumstances of this

case, the presence of the ladies clothing (two female
upper garments and two pairs of female jeans) along
with male clothing in the third room of the first house
does not mean that no possession was established
against Siew. The crucial question is whether Siew was
so situated with respect to the proscribed drugs found
in the second and third rooms of the first house that he
had the power to deal with the drugs as owner to the
exclusion of all other persons, and when the
circumstances are such that he may be presumed to
intend to do so in case of need. In other words, Siew
must be so situated that he can deal with the proscribed
drugs as if it belonged to him, and it must be shown
that he had the intention of dealing with it as if it
belonged to him should he see any occasion to do so (he
had animus possidendi). Invariably this is a fact which
can only be proved by inference from surrounding
circumstances of this case. It must be clear from the
circumstances in which the proscribed drugs were found,
that Siew had the intention of dealing with the drugs as
if they belonged to him. The list of such possible
circumstances is not exhaustive. One example of such
circumstances given by Thompson J in Chan Pean Leon
is a case where an article is found in a locked room
where one holds the key. In the present case, Siew was in
55
possession of the keys to the locked first house in which

large amount of dangerous drugs were found in two
locked rooms; the keys to which were kept at the
locations known to Siew. (Emphasis added)
[119] It will be observed from the decision that an important element

considered by the apex court when fastening possession upon the
accused is whether in all the circumstances he had the power to deal
with the drugs as owner to the exclusion of all other persons should
the need arise. He must also be so situated that he can deal with the
drugs as if they belonged to him.
[120] On the facts of the case, the court found these factors to be
present in the following:
i) The accused had in his possession the keys to the first

house;
ii) He was the tenant of the first house:
iii) Evidence of information leading to discovery under

section 27 of the Evidence Act 1950 was admitted by him
pointing to sets of keys which led to the discovery of
drugs in some of the rooms in the house.
[121] Once again, these factors, save for the Accused having the key,
are absent from the case under consideration. In respect of the element
of exclusivity, the court observed as follows:
The question is what is the combined effect of all the

circumstantial which we have set out? Where did the
56
totality and the total effect of all the evidence lead the
court to? Did it not lead to the inevitable, and the only
conclusion that Siew was found in possession of the
proscribed drugs? In our judgment the answer to the
above question must be in the affirmative. Siew was so
situated with respect to the proscribed drugs found in
the second and the third rooms in the first house that
he had the power to deal with it as owner to the
exclusion of all other persons, and when the
circumstances are such that he may be presumed to
intend to do so in case of need (Public Prosecutor v.
Denish Madhavan and Chan Pean Leon v. Public
Prosecutor applied). The learned trial judge was right
when he held that the prosecution had proved actual
possession of the proscribed drugs against Siew. Having
made the affirmative finding of possession, and as the
amount of dangerous drugs in this case was more than
15g, the learned trial judge invoked (and in our view
rightly) the presumption of trafficking under s. 37(da) of
the DDA. In our judgment, the learned trial judge was
right in calling upon Siew to enter on this defence on the
charge of trafficking against him. (Emphasis added)
[122] It will be noted that the court placed emphasis on the need to
deal with the proscribed drugs to the as owner to them exclusion of all
others when determining the test of exclusivity. The power of disposal
as constituting a necessary ingredient in possession was recently
reemphasised in Law Sie Hoe v. Public Prosecutor [2014] 1 LNS 269.
57
In so holding, the Court of Appeal placed reliance on the case of Toh

Ah Loh & Mak Thim v. Rex (supra). The need to exclude others who
would have access to the place where the drugs were concealed has
been underscored by the decision in Ibrahim Mohamad & Anor v.
Public Prosecutor [2011] 4 CLJ 113 where the Federal Court speaking
through Zulkefli Makinudin FCJ (as His Lordship then was) had this
to say:
[9] It is our finding that there is no evidence to prove

that both the accused were exclusively in custody and
control of the vehicle prior to their arrest. There are so
many favourable inferences that can be made from the
existing factual matrix of this case. The vehicle could have
been previously rented to a third party or Zainuddin could
have taken possession of the said vehicle after the
summons incident in Kedah.
[123] Although the factual matrix involved a motor vehicle, the

position with regard to a store room is no different. The main thing to
note was that the element of exclusivity was considered an essential
element in order to prove custody, control and possession as was the
need to exclude others to the place where the drugs were found
concealed. The need upon the prosecution to exclude others to the
drugs was also decisive in the case of Husin Sitorus v. Public
Prosecutor [2012] 7 CLJ 205 as borne out by the following passage:
[15] There is a welter of authoritative precedents

which have held that for possession to be established,
accessibility by others to the place where the drugs are
58
found should be excluded by evidence by the prosecution

(PP v. Kang Ho Soh [1991] 3 CLJ 2914; [1991] 3 CLJ
(Rep) 557 HC, PP v. Tang Chew Weng [1969] 1 LNS 141
HC. The onus is not on the defence to prove possibility
of access by others but on the prosecution to exclude
such possibility and the issue must be answered in
favour of the appellant if there were more than one way
in which the evidence adduced by the prosecution might
be viewed such as in the present case, implicating the
appellant or the other persons who were present in the
boat. (Abdullah Zawawi Yusoff v. PP [1993] 4 CLJ 1 SC).
In other words exclusivity of custody and control of the
drugs ought to be established by the prosecution.
(Emphasis added)
[124] The Court of Appeal case of Azizan Yahaya v. Public

Prosecutor [2012] 8 CLJ 405, in considering the element of
exclusivity held:
[8] We find from the evidence adduced by the

prosecution that though the room where the drugs were
found was occupied only by the appellant and SP4 but it
is pertinent to note that evidence also showed that the
room was accessible to all the other occupants in the
house. SP4 testified that she and the appellant occupied
the main bedroom and the children occupied the other
two rooms. In cross-examination SP4 agreed that
59
everybody in the house had access to the room (p. 28

appeal record). The room was unlocked. Thus whilst the
occupants of the room were the appellant and SP4 both of
whom would have had complete access to the room, it is
also apparent that their three children too had access to
the room. Yet SP4 was not charged although she was
remanded.
[9] We find that the testimony of SP4 regarding access to

the room was hardly challenged. SP5 under cross-
examination had also agreed that the appellants children
probably had access to the appellants room. He was not
re-examined on this issue. We agreed with learned
counsel that the learned judge had failed to analyse or
assess these testimonies. The prosecution has failed to
discharge its bounden duty of excluding access to the
appellants room by others. (Emphasis added)
[125] The above cases drive home the point that the element of
exclusivity and the need to exclude others from access to where the
drugs were found is of paramount importance if the prosecution are
to successfully prove possession. Although on the facts here, it is the
prosecution evidence that the storeroom was locked, this does not
make the principles pronounced in the foregoing cases irrelevant for
it must be remembered that the evidence was that it was used as a
store to keep disused things and so it is reasonable to infer that the
others in the house also had access if they had the key and they
60
would have to have the key in order to enter and place their things
there. The possibility that Albert from all accounts also had access to
the storeroom and with this the not improbable scenario that the
drugs belonged to him for the reasons stated, would tend to negate
the element of exclusive possession on the part of the Accused.
[126] Given the circumstances above and the scenario that at the very
least, the probability that Albert as well could have access to the
storeroom as well as the not improbable version of the Accused that
Albert in fact occupies the room, leads me to the finding that it is not
possible to ascertain whether the drugs in fact belong to the Accused,
or Albert, or both of them.
[127] In this regard I am reminded of what Lord Goddard CJ said in R

v. Abbot [1955] 2 All ER 899 at pg 901 as follows:
If two people are jointly indicted for the commission of

a crime and the evidence does not point to one rather
than the other, and there is no evidence that they were
acting in concert, the Jury ought to return a verdict of
not guilty against both because the prosecution have not
proved the case. If in those circumstances it were left to
the defendants to get out of it if they could, that would
put the onus on the defendants to prove themselves not
guilty. Finnemore J remembers a case in which two
sisters were indicted for murder, and there was evidence
that they had both been in the room at the time the
61
murder of the boy was committed; but the prosecution

could not show that sister A had committed the offence
or that sister B had committed the offence. Very likely
one or the other must have committed it, but there was
no evidence which, and although it is unfortunate that a
guilty party cannot be brought to justice, it is far more
important that there should not be a miscarriage of
justice and that the law should be maintained that the
prosecution should prove the case.
[128] The above pronouncement was adopted and applied by the then
Supreme Court in this country of Choo Chang Teik & Anor v. Public
Prosecutor [1991] 3 MLJ 423. The principle was also applied by
Shankar J (as he then was) in Public Prosecutor v. Aris Yunus [1989]
1 CLJ 239 where the proposition enunciated by Lord Goddard CJ in R
v. Abbot (supra) was quoted. The principle was also quoted with
approval by the Supreme Court in Shamsuddin bin Hassan v. Public
Prosecutor [1991] 3 MLJ 314.
[129] Although the principle in R v. Abbot and the cases which

followed it applied to a situation where there were two accused
persons jointly charged and evidence of common intention invoked,
unlike in this case, I do not think that this necessarily dilutes the force
of the principle that if it is impossible to conclude who among those
suspected of a crime is the actual perpetrator, then the prosecution
have not proven their case against the Accused beyond reasonable
doubt.
62
[130] In respect of the absence of forensic evidence including

fingerprints to link the Accused to the incriminating exhibits, I accept
that generally they constitute supportive or corroborative evidence.
However, the importance of such evidence is also very often fact
sensitive. In a case such as this, where one or more inferences can be
drawn as to whether the Accused or Albert was the true perpetrator of
the crime, forensic evidence such as fingerprints can often be
conclusive. Their absence in this case does not assist the prosecution
in their quest to prove possession of the drugs on the part of the
Accused.
[131] Upon a consideration of all the facts above, I find that the
Accused has successfully rebutted the statutory presumption of
trafficking under section 37(da) of the DDA on a balance of
probabilities. I also find that the Accused has raised a reasonable
doubt in the prosecution case. I therefore acquit the Accused of the
charge against him.
DATED: 27 JUNE 2016
(COLLIN LAWRENCE SEQUERAH)

Judicial Commissioner
High Court of Malaya
63
Penang
COUNSELS:
For the accused - Hussaini Abd Rashid; M/s Hussaini & Co

Penang
For the respondent - Dharliza Dris, Deputy Public Prosecutor,

Penang State Legal Advisor Office
Case(s) referred to:
Public Prosecutor v. Mohd Jamil Bin Yahya & Anor [1993] 3 MLJ
702
Public Prosecutor v. Michael Anayo Akabogu [1995] 4 CLJ 79
Public Prosecutor v. Lim Bong Kat & Anor [1992] 4 CLJ 2173
DA Duncan v. Public Prosecutor [1980] 2 MLJ 195
Public Prosecutor v. Lee Jun Ho & Ors [2009] 3 MLJ 400
Muthusamy v. Public Prosecutor [1948] MLJ 57
Dato Mokhtar Hashim & Anor v. Public Prosecutor [1983] 2 MLJ 232
Public Prosecutor v. Abdul Kudus bin Japlus [1988] 3 MLJ 310
PP v. Dato Seri Anwar Bin Ibrahim (No. 3) [1999] 2 AMR 2017;

[1999] 2 MLJ 1
Looi Kow Chai &Anor v. PP [2003] 2 AMR 89
Balachandran v. PP [2005] 1 CLJ 85
PP v. Mohd Radzi Bin Abu Bakar [2005] 6 AMR 203
64
Looi Kow Chai v. Public Prosecutor [2003] 2 MLJ 65
Munusamy Vengadasalam v. PP [1987] CLJ (Rep) 221
Toh Ah Loh And Mak Thim v. Rex [1949] MLJ 54
Leow Nghee Lim v. Reg [1956] 1 MLJ 28
PP v. Muhamad Nasir Bin Shaharuddin & Anor [1994] 2 MLJ 576
Parlan bin Dadeh v. Public Prosecutor [2008] 6 MLJ 19
Pitting bin Haji Mohammed Ali v. Public Prosecutor [1979] 2 MLJ

136
Matthew Lim v. Game Warden, Pahang [1960] 1 MLJ 89
Koay Chooi v. Regina [1955] 1 MLJ 209
Public Prosecutor v. Munusamy [1980] 2 MLJ 133
Md Zainudin bin Raujan v. Public Prosecutor [2013] 3 MLJ 773
Prasit Punyang v. Public Prosecutor [2014] 4 MLJ 282
Public Prosecutor v. Saimin [1971] 2 MLJ 16
Liew Kaling & Ors v. Public Prosecutor [1960] MLJ 306
Public Prosecutor v. Datuk Haji Harun bin Haji Idris & Ors [1977] 1
MLJ 180
Mat v. Public Prosecutor [1963] 29 MLJ 263
Public Prosecutor v. Iskandar bin Mohamad Yusof [2006] 5 MLJ 559
Public Prosecutor v. Norhazwan Abd Wahab [2014] 1 LNS 275
Public Prosecutor v. Denish a/l Madhavan [2009] 2 MLJ 194
65
Siew Yoke Keong v. Public Prosecutor [2013] 3 MLJ 630
Law Sie Hoe v. Public Prosecutor [2014] 1 LNS 269
Ibrahim Mohamad & Anor v. Public Prosecutor [2011] 4 CLJ 113
Husin Sitorus v. Public Prosecutor [2012] 7 CLJ 205
Azizan Yahaya v. Public Prosecutor [2012] 8 CLJ 405
R v. Abbot [1955] 2 All ER 899
Choo Chang Teik & Anor v. Public Prosecutor [1991] 3 MLJ 423
Public Prosecutor v. Aris Yunus [1989] 1 CLJ 239
Shamsuddin bin Hassan v. Public Prosecutor [1991] 3 MLJ 314
Legislation referred to:
Dangerous Drugs Act 1952, ss. 2, 37(d), 37A(1)(b), (da)(vi),

39B(1)(a)
Evidence Act 1950, ss. 8, 9, 32(1)(i), 155
Criminal Procedure Code, ss. 112, 180(1), 182A(1)
66

PP V Gunaseelan (2016) 1 Lns 714

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[2016] 1 LNS 714 Legal Network Series

IN THE HIGH COURT OF MALAYA AT PENANG

[1] The amended charge against the Accused reads as follows:

Bahawa kamu pada 31.3.2014, jam lebih kurang 10.45

B) SUMMARY OF PROSECUTIONS CASE

[2] The pertinent facts led by prosecution witnesses are that on

[4] Further inspection of the storeroom revealed the presence of a

[5] Both suspects were brought to the Police District Headquarters,

exhibits. The exhibits were then placed by SP8 in a locked steel

the police discovering the incriminating exhibits, the reaction of the

Accused was said to be one of fear and trembling terketar-ketar

when answering the questions posed by SP5.

and instructed SP1 to take 9 photographs of the exhibits. On 2.4.2014

also at about 4.00pm, SP8 sent the exhibits placed in an envelope

marked E1 to the Chemist Department Jabatan Kimia Pulau

issued a receipt of acknowledgement to SP8.

[9] The result of the analysis conducted by SP4 revealed the

compressed slab of dried plant material contained in envelope marked

E1 to be cannabis with a nett weight of 880 grams.

[10] On 5.8.2014 at around 3.30 pm SP8 received back the exhibits in

Prosecutions application to invoke section 32 (1) Evidence Act 1950

[12] During the trial, the prosecution sought to introduce the

32. Cases in which statement of relevant fact by person

(1) Statements, written or verbal, of relevant facts made

[13] In respect of the law on this subject, the case of Public

The scope of the first principle may be briefly indicated

The second principle which is termed circumstantial

is practically sufficient, if not quite equivalent to that of

[14] Again, in the case of Public Prosecutor v. Michael Anayo

The scope of the first principle may be briefly indicated

We see that under certain circumstances the probability of

[15] The application of section 32(1) Evidence Act 1950 is not

[16] The evidence of the investigating officer (IO), Inspector Nur

by her to trace the said Albert:

i) She placed several phone calls to the phone number 016-

iii) A search made by her at the National Registration Office

iv) On 9.7.2015, she conducted a search in respect of one

v) She managed to get confirmation from Syarikat Tarika

vi) She placed newspaper advertisements P38 and P39 but to

i) Issuing a summons under section 34(2) of the Criminal

ii) Invoking the inherent powers of the police as stipulated in

iii) Requesting from the courts whilst investigations were still

iv) Issuing a summons under section 35 of the CPC to

v) Applying under section 36 of the CPC to leave summonses

vi) Having exhausted the above steps, to then issue a warrant

vii) If having failed to effect arrest on the witness after

viii) Should any of the above steps be still unsuccessful, to

ix) Utilising the provisions of section 404 of the CPC which

Section 32 of the Evidence Act 1950 is an exception to the

From facts adduced, I find that the police has failed to

There was no attempt to fully utilise the prevailing and

.In view of the above circumstances especially of the

(i) Public Prosecutor v. Mohamed Said [1984] 1 MLJ

(ii) Public Prosecutor v. Mohd Jamil bin Yahya & Anor

(iii) Public Prosecutor v. Gan Kwong [1997] MLJU

(iv) Public Prosecutor v. Chow Kam Meng [2001]

(v) Public Prosecutor v. Mogan Ayavoo [2004] 3 CLJ

(vi) Public Prosecutor v. Norfaizal bin Mat (No 2)

I hold that the prosecution has failed to meet the

[23] The efforts of the police in attempting to locate Albert at the

[26] Before proceeding further, it was incumbent upon the

[27] After highlighted copies of her statement under section 112 of

[28] Section 155 of the Evidence Act 1950 reads: