IN THE COURT OF APPEAL, MALAYSIA AT KOTA KINABALU

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

BETWEEN
APPELLANT

SYED ABU THAGIR SYED ABU BAKKAR

AND

RESPONDENT

PUBLIC PROSECUTOR

[In the matter of High Court Malaya at Kota Kinabalu

Criminal Trial No K45-02-2011
Between
Public Prosecutor
And
Syed Abu Thagir Syed Abu Bakkar]

CORAM:
ABDUL AZIZ BIN ABD RAHIM, JCA
ROHANA BINTI YUSUF, JCA
ABANG ISKANDAR BIN ABANG HASHIM, JCA

JUDGMENT OF THE COURT

Introduction:
[1]

Syed Abu Thagir Syed Abu Bakkar (the Appellant) was charged

for trafficking in dangerous drugs as per charge below:

"That you, on the 30.12.2010 at about 12.30 p.m., at the
Special Passenger's Examination Unit of the Kota Kinabalu
International Airport, Kota Kinabalu, in the State of Sabah, did
traffic in dangerous drug, to wit a total of 1982.2 grams of
Ketamine, which is listed in the First Schedule of the Dangerous
Drugs Act 1952 (Act 234) without any authorization and you
thereby committed an offence under section 39B(1)(a) of the
Dangerous Drugs Act 1952 (Act 234) and punishable under
section 39B(2) of the same Act."

The Prosecutions case

[2]

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

was on duty with other customs personnel at the arrival hall of the Kota
Kinabalu International Airport. There he saw the Appellant and other
passengers heading towards the green lane on his way out. The
2

Appellant was seen alone and he was seen carrying a red suitcase (P2)
and a black backpack (P3). SP4 directed the Appellant to scan P2 and
P3 on a scanning machine.

[3]

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

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

The Appellant was subsequently asked to open the bag for inspection.
The Appellant unlocked the padlock and opened the bag. When the bag
was opened, it was found to contain 45 pieces of sarees (P32 (1) (45)). He was then asked to pay a tax of RM300. 00 for the sarees. The
Appellant tried to bargain with the Customs Officers to have the amount
reduced to RM200.00 because he contended that he had been
previously charged the latter amount for similar goods.

[4]

As the Appellant refused to give full cooperation, SP4 then

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

course of doing so, he became suspicious when he felt some granular
materials were woven among the flower patterns on the sarees in the
bag.

[5]

SP4 subsequently ordered the Appellant and his bags be brought

into the operation room for further examination. In the room, SP5 cut a
3

little piece from flower patterns on the saree and found that it contained
a small transparent plastic package of yellowish-white granular
substances (the substances). According to SP4, the Appellant
appeared anxious and frightened when they found the plastic packets.
SP5 also testified that the Appellant was in tears after the packets were
found.

[6]

The said substances were then sent to the Chemistry Department

for analysis. Government Chemist one Ahmad Nazri bin Husain (SP3)
confirmed that the substances contained 1982.2 grams of Ketamine,
which is a dangerous drug under the First Schedule of the Dangerous
Drugs Act of 1952 (the DDA).

[7]

The Appellant was subsequently charged for drugs traficking as

per the charge stated above, in the High Court at Kota Kinabalu, Sabah.
At the end of the prosecution, the learned High Court Judge (the HCJ)
found that a prima facie case had been established by the prosecution,
and the Appellant was ordered to enter on his defence.

The Case for the Defence

[8]

The Appellant had elected to testify under oath. According to the

Appellant, he was from Tamil Nadu, India. On the date of his arrest, it
4

was not the first time he set foot in Kota Kinabalu. On that unfortunate
day, he was actually a transit passenger scheduled to fly to Kuala
Lumpur at 5.30pm later that day.

[9]

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

Kota Kinabalu from India. The Appellant confirmed SP4s evidence that
he was asked to pay a tax of RM300.00 for the sarees and that he had
tried to have it reduced to RM200 instead.

[10] As to why he was crying, the Appellant had said that he was
shocked and had cried, thinking how the substances in the packets
could have been inside the red bag. As far as he knew, the red bag had
contained only sarees.

[11] The Appellant also tendered in his cautioned statement (D1) that
was recorded by the Customs Officer on 30 December 2010 at 3.00
pm.

The decision of the High Court

[12] The learned HCJ, at the end of defence case, had found the
Appellant guilty as charged and had convicted him. The Appellant was
then sentenced to death by hanging as mandated under section 39B(2)
5

of the DDA. The Appellant, being aggrieved by the decision of the HCJ
had filed the notice of appeal seeking to overturn the same.

The Appeal

[13] We had heard the appeal. Having perused all records of appeal
and having listened to oral submissions by both counsel, we had
unanimously dismissed the appeal and upheld the conviction as well as
sentence by the learned HCJ. We now set out our reasons for having
so decided.

The Appellants submission

[14] We will first allude to the issues raised by the learned defence
counsel for this Courts deliberation, and they had been:
i. The prosecution had failed to establish a prima facie case
ii. Wrong application of S.37(d) of DDA
iii. Uncertain finding of possession
iv. Absence of finding of trafficking
v. Unfair and improper treatment of defence

[15] We will deal with the issues as raised by the Appellant in turn. We
will deal with the first complaint pertaining to the lack of a prima facie
6

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

involves 2 issues. First, it was concerned with non-compliance with
section 272 of the Criminal Procedure Code (the CPC) by the Court.
Secondly, it had concerned the issue of whether the prosecution had
proven possession of the drugs against the Appellant in the
circumstances of this case.

[16] On the issue of section 402B of CPC, the learned counsel for the
Appellant had submitted that the non-compliance with section 272 of
CPC was fatal as that provision was mandatory. It had pertained to the
evidence of the Chemist SP3 Ahmad Nazri bin Husain. He was of the
view that the expertise of SP3 was not established as that information
on his qualification was contained in Exh. D which was admitted by the
learned trial Judge, as was explained by SP3 when he was questioned
about Exh. D by the learned trial Judge. [See page 31 of Notes of
Proceedings in the High Court]. The learned counsel had contended
that the learned trial Judge could not do that as that would contravene
section 272 of CPC which states that:
272. Judge to take notes of evidence.
In all criminal cases tried before the High Court the Judge shall
take down in writing notes of the evidence adduced.

[17] In this case, SP3 had testified on 10 January 2012, but his
qualification was contained in a document marked as Exh. D. The
defence argued that as section 402B of CPC only came into effect on 1
June 2012, Exh. D ought not to have been admitted by the learned trial
Judge. Without such evidence on the qualification of SP3 his evidence
was incomplete, according to the learned counsel for the Appellant. The
newly amended section 402B(1) and (2) of CPC provided as follows:
402B. Proof by written statement.
(1) In any criminal proceedings, a written statement by any
person shall, with the consent of the parties to the proceedings
and subject to the conditions contained in subsection (2), be
admissible as evidence to the like extent as oral evidence to
the like effect by that person.

(2) A statement may be tendered in evidence under

subsection (1) if(a) the statement purports to be signed by the person who
made it;
(b) the statement contains a declaration by that person to
the effect that it is true to the best of his knowledge and
belief; and
8

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

party proposing to tender it, on each of the other parties
to the proceedings not later than fourteen days before
the commencement of the trial unless the parties
otherwise agree.

[18]

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

Ahmad & Anor v PP [2013] 9 CLJ 183 (Formi Afta case). It was also
submitted before us that the chemist did not testify that the substances
that he had analysed were Ketamine, a dangerous drug listed in the
First Schedule of the DDA. In response, the learned Deputy submitted
to us that the provision under section 402B of CPC was merely
directory and that it could be applied retrospectively.

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

of CPC stated that the Judge was to record in writing the notes of the
evidence adduced. But in this instance, the SP3 had given oral
evidence which was dutifully taken down in verbatim by the trial Judge.
We noted that the impugned document marked Exh. D had contained
his qualifications that was type-written and signed by him. In such a
case, there was no need for the learned trial Judge to take down in
writing that which had been type-written on the document. After all,
9

when the chemist, SP3 tendered his qualifications on that document

Exh. D he was already under oath. It was not as though the Exh. D was
tendered just like that. On the contrary, it was tendered by the same
witness who had testified to its veracity regarding his qualifications. So,
looking at Exh. D we were of the view that it was not a statement which
was envisaged under section 402B of CPC. To our mind, section 402B
of CPC envisages a statement of facts signed by the witness similar to
the one given by a witness in his witness statement in a civil litigation. In
this case before us, the SP3 came and testified under oath. He gave his
oral evidence. It was only his qualification that was type-written on a
piece of paper prepared by him which he himself had tendered in Court
under oath, for the convenience of everybody. There was no objection
by the defence counsel when it was admitted by the trial Judge and
marked as Exh. D. He could be cross-examined on it, which, indeed
had happened in this case before the HCJ. The Appellant was not at all
prejudiced by the tendering of this document by the prosecution. In fact,
SP3 was cross-examined on its contents. As such, the inter-play
between Exh.D and section 402B of CPC did not arise and the case of
Formi Afta case [supra] cited by the learned counsel did not apply to
the factual matrix of this case.

10

[20] In any event, the role of the chemist in a drug analysis exercise
has been spelt out in the Supreme Court with sufficient clarity by Abdul
Hamid bin Omar LP in the case of Khoo Hii Chiang v PP [1994] 2 CLJ
151. In essence, the chemist, in determining the nature of the
substances under examination in his laboratory was not expressing an
opinion. He was reporting a factual finding resulting from his
observation as to the nature of the substances that he has analysed in
his laboratory. There was therefore no need for the chemist to establish
his expertise in that sense. Abdul Hamid Omar LP. had said in the
Khoo Hii Chiang case [supra] the following :
It is appropriate at the outset to determine whether the
evidence of a chemist on the identity of a drug constitutes
evidence of fact or opinion and to consider the attendant issue
governing the admissibility of such evidence. If the chemists
evidence is factual, then it follows that he is competent to give
evidence like any other witness and by the same token the law
on the admissibility of such evidence would apply. If the
chemists evidence constitutes an opinion, then his evidence
would come under the category of expertise evidence. In that
case the question of his competency to give expert evidence
arises. The law seems clear that opinions of experts are under
certain conditions admissible in evidence. Our law of expert
11

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

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

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

hence Exh. D, we need to reiterate here that in a case that does not
require complicated analysis involving forming of opinions on findings
as a result of an analysis, there is no need to look into the qualifications
of a chemist who does the examination and who reports to the Court on
his observations. We found support for this proposition in the Supreme
Court case of Junaidi bin Abdullah v PP [1993] 4 CLJ 201. In that
case, which involved an examination of a revolver by a government
chemist, it was stated by learned Mohd Azmi Kamaruddin SCJ as
follows:
We were therefore of the opinion that since the evidence
sought to be proved by the prosecution was limited only to
servicibility of an ordinary revolver, Mr. Cheong (PW6) a
Chemist in the Chemistry Department was competent to give
expert evidence of such uncomplicated matter. In the
circumstances of this case, the Court was entitled to accept his
position as a Government Chemist as sufficient, without going
into his academic qualification or experience, although for the

12

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

ground of appeal must equally be rejected.

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

appeal, we were satisfied also that there was no break in the chain of
exhibits in this case. We agreed that the exhibits tendered in the trial
Court were the same exhibits that were seized and handled by the
various witnesses for the prosecution during the investigations prior to
the trial.

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

dangerous drug listed under the First Schedule of the DDA, we found
that the SP3 did mention in his oral testimony that the granular
substances that he had examined were ketamine and during his crossexamination by learned counsel, SP3 said that when asked by counsel:
Q: Refer to D.-you agreed that you did not state that you have
done any analysis on ketamine.
A: Saya merujuk kepada bilangan no. 11 kepakaran anda? No1
Analisis dadah berbahaya di bawah ADB 1952 adalah
merangkumi semua dadah yang tersenarai di dalam Akta ini
termasuklah ketamine.

13

[24] This was further corroborated by his entry in his chemist report
that was marked as P11 where he stated his findings as ketamine and
that the Ketamine adalah disenaraikan dalam Jadual Pertama Akta
Dadah Berbahaya 1952. As such, we found no merit in the Appellants
contention before us on that issue.

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

possession against the Appellant, we noted that the learned HCJ had
addressed his mind on section 37(d) of the DDA as well as on actual
possession in his deliberation on this issue in his Grounds of
Judgement (GOJ). Possession founded upon finding premised on
section 37(d) DDA is also commonly referred to as presumed
possession. So he had addressed his mind on both types of
possession.

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

DDA which reads as follow:
In all proceedings under this Act or any regulation made there
under-

14

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

they are used for that purpose even on one occasion only;
(b) a person, until the contrary is proved, shall be deemed to
be the occupier of any premises, if he has, or appears to have,
the care or management of such premises;
(c) if any syringe and dangerous drug suitable for hypodermic
injection, or any pipe and dangerous drug suitable for smoking
be found in any premises, it shall be presumed, until the
contrary is proved, that the premises are used for the purpose
of the administration of a dangerous drug to, or the smoking or
consumption otherwise of a dangerous drug by, a human
being and that the occupier permits such premises to be used
for such purpose;
(d) any person who is found to have had in his custody or
under his control anything whatsoever containing any
dangerous drug shall, until the contrary is proved, be
deemed to have been in possession of such drug and
shall, until the contrary is proved, be deemed to have
known the nature of such drug;

15

[27] The learned HCJ, after taking into account the evidence that the
red bag (P2) was at all material times under the control of the Appellant
from the time when he was first seen pulling it on his way towards the
green lane at the Kota Kinabalu International Airport, until he was seen
unlocking, and indeed having unlocked the padlock attached to it in the
operation room of the Customs Department at the same airport, had
concluded that the prosecutions evidence as led before him, taken as a
whole, had established possession as envisaged under section 37(d) of
the DDA. That possession was presumed possession. Having
considered the relevant evidence which were referred to by the learned
HJC we were in agreement with him that presumed possession was
rightly found. We found nowhere in the evidence that the Appellant had
seriously challenged the fact that he was in physical possession of the
red bag which had contained the sarees, thus the drugs that were found
on the sarees. The fact that he was in possession of the key with which
he had unlocked the padlock that had secured the red bag pointed
strongly, to our mind, to the fact that the Appellant indeed had custody
or control over the red bag, P2. We therefore found that the learned
HCJ had correctly found as a fact and as a finding of law that the
presumed possession under section 37(d) of the DDA against the
Appellant

had

been

established.

In

the

case

of

Warner v.

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

16

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

person so positioned in relation to the impugned items to explain away
the nexus that has been established. We noted too that the learned
HCJ had alluded to the issue of trafficking in the drugs by the Appellant,
as can be seen at page 9 of his GOJ, where he had said, after quoting
the Federal Court in the case of Mohamad Yazri bin Minhat v PP
[2003] 2 MLJ 241, as follows :
Whether he is a trafficker in those circumstances depends on
the facts and circumstances of the given case, including the
quantity of the drugs and any transaction the accused proposed
to enter into. Judging from the manner the drug was been
carried i.e. small plastic packets and taking into account the
total amount of the drug involved, the reasonable inference that
may be drawn is that the respondent was in fact carrying it for
the purpose of trafficking.

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

being Ketamine, under the law that operated against the Appellant in
this case. As such, he had addressed his mind to the important fact that
to get an acquittal from the charge that was leveled against him for
trafficking, the Appellant would only have to raise a reasonable doubt
on that factum of trafficking. The mere fact that he did not refer to
17

section 2 of the DDA that defines the word traffic was not, to our mind,
fatal to the prosecutions case. Clearly, he had found as a fact, at that
stage, that the impugned drugs were being transported and concealed
in an ingenious manner among the intricate embroideries on the sarees.
The images of the sarees can be seen in the photographs that were
tendered in Court during trial. [See P7(13) to P7(22)]. Those words,
involving transporting and concealing, are derived from the respective
root verbs under section 2 of the DDA which constitute an act to traffic.
We noted too that he had subjected the evidence led by the prosecution
to a maximum evaluation as required by law as enunciated in the case
of Mohammad Radzi bin Abu Bakar v PP [2006] 1 CLJ 457. We were
satisfied that there was sufficient evidence before him justifying such a
positive finding by him that a prima facie case had been established by
the prosecution warranting the Appellant to enter on his defence. As
such, we found no merit in the Appellants contention that there
prosecution had failed to prove possession of the drugs by the
Appellant, at the end of the prosecution case.

[29] The learned counsel for the Appellant had also complained before
us that the learned HCJ was uncertain on his finding of possession. At
first we were not clear what this complaint was all about. Later it was
explained to us that the learned HCJ seemed to have made 2 findings
18

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

possession and the other one was the actual possession. Having
perused through the evidence, we could appreciate the learned trial
Judges remark on actual possession. It was his view that based on the
evidence as led by the prosecution, the conduct of the Appellant, where
he had appeared gugup and was crying when the drugs were
discovered by the customs officers, would constitute sufficient evidence
to found actual possession on the part of the Appellant vis--vis the
impugned drugs. That being quite apart from the fact that the evidence
as led had also justified him into invoking the presumption of
possession of the drugs under section 37(d) of the DDA. But at the end
of it all, the learned HCJ had ruled that it was the presumed possession
that had operated against the Appellant which he had to rebut on the
balance of probabilities. This we can see clearly in his GOJ at page 6
where he had said:
Memandangkan tertuduh mempunyai kawalan dan jagaan ke
atas dadah berkenaan, andaian pengetahuan dibawah seksyen
37(D)

ADB

terpakai

terhadapnya.

Ini

bermakna

beban

pembuktian terletak di bahu tertuduh untuk membuktikan atas

imbangan kebarangkalian bahawa yang tidak tahu menahu
tentang dadah tersebut.

19

[30] We saw no merit in the Appellants complaint based on that

alleged grievance. To our mind, he was not prejudiced in any way. In
fact, the learned trial HCJ had amply reminded the Appellant as to the
nature of the burden which he would have to discharge in his defence
as regards the factum of presumed possession which was he had to
discharge it on the balance of probabilities.

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

HCJ at the end of prosecutions case and the end of the defence case,
we had perused through his GOJ. As a result of such exercise, we had
found that such complaint by the Appellant was without basis. We said
so because the GOJ showed the direct opposite of what the Appellant
was complaining about. As regards the alleged non-finding of trafficking
by the learned Judge at the end of the prosecutions case, we will
reproduce that part of the GOJ where the learned trial had dealt with
that issue. That part of his decision resides at page 9 of his GOJ and it
reads:
Dalam kes ini dadah tersebut adalah dalam jumlah yang
banyak, dibungkus dengan rapi dan disembunyikan pula
dengan cara yang begitu ingenious sekali. Seperti mana boleh
dilihat dari gambar-gambar di P7 (13) hingga P7 (22) sesiapa
yang melihatkan kain-kain sari tersebut tidak akan menyangka
20

bahawa di sebalik corak bunga yang dijahit kemas itu terdapat

dadah yang disembunyikan. Oleh yang demikian, meminjam
kata-kata Lord Diplock dalam kes Ong Ah Chuan (Supra) The
inference that he was transporting them for the purpose of
trafficking in them would, in the absence of any plausible
explanation by him would be irresistible.

[32] As regards the finding on trafficking at the end of the whole case,
that finding appeared at the penultimate paragraph at page 18 in his
GOJ:
Saya juga telah menimbang samada penjelasan tertuduh telah
menimbulkan

keraguan

yang

munasabah

pendakwaan

bahawa

dadah

tersebut

pengedaran.

Setelah

berbuat

demikian

terhadap
adalah

saya

kes

tujuan

mendapati

bahawa penjelasan tertuduh gagal untuk menimbulkan apa-apa

keraguan terhadap kes pendakwaan. Saya mendapati bahawa
pihak pendakwaan telah membuktikan pertuduhan tanpa
sebarang keraguan munasabah. Oleh yang demikian tertuduh
disabit atas kesalahan dan dijatuhi hukuman sewajarnya.

[33] The last issue that was raised by the learned counsel for the
Appellant before us was the complaint by him that the learned HCJ was
21

unfair and that he had improperly appreciated the defence of the

Appellant. In this regard, the general rule that needed to be stated is
that all trial judges need to adhere to the salutary rule that they must
consider the defence put up by the accused person, however weak and
hopeless the defence may appear to be, before coming to a judgement
at the end of the defence case. Failure to abide by that rule is a nondirection amounting to a misdirection and a conviction so arrived at,
runs the risk of being set aside. The element of unfairness can be
clearly seen in such an approach. It really amounts to not hearing the
accused persons defence at all, giving the accused person a mere
semblance of a hearing, when in fact, the Court does not consider his
version of the material events at all.

[34] But in this appeal before us, the same cannot be said of the
learned HCJ. On the contrary, he did consider the Appellants defence.
This fact we could see at pages 13-17 of his GOJ. In fact, he put the
evidence of the Appellant up to scrutiny, which he was obligated and
mandated to do. He was discerningly critical in his approach. He had
subjected the defence evidence to the probability test. With respect, to
our mind, there was nothing wrong in adopting that approach.

22

[35] It is worth noting that the Appellant in his defence bore 2 kinds of
burden to be discharged. The first was the burden to rebut the
presumption of possession under section 37(d) of the DDA. In this
regard, he had to do that on the balance of probabilities. The Privy
Council case of PP v. Yuvaraj [1968] 1 LNS 116 (Yuvaraj case) is
instructive on that issue. Secondly, he had to raise a reasonable doubt
on the factum of trafficking. The case of Mat v PP [1963] 1 LNS 82
outlines what has now become trite on the issue. In the context of this
case, if he succeeded in rebutting the presumption of possession, the
issue of trafficking would be rendered academic. He would be entitled to
an acquittal from the charge. The factum of trafficking would have
begun its run from him being in possession of the impugned drugs. But
that was not the same as saying that possession equals trafficking.
They are in fact two distinct and separate offences under the DDA.
Trafficking would require proof of possession of the drugs by the
accused person. But for the offence of possession, it does not require
any proof of trafficking. That was the reason why it would be wrong for
the Court to convict an accused person of trafficking just because the
accused person had failed to rebut the presumption of possession in a
trafficking charge. The Court would, in appropriate cases be under an
obligation to undertake a separate exercise to determine whether the
element of trafficking had been made out although the accused has
23

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

principle finds its genesis in the decision of the Supreme Court in the
case Mohammad Radzi bin Yaacob v PP [1991] 3 MLJ 169. With
respect, we noted that the learned trial Judge had undertaken that 2-tier
exercise before he finally came to the conclusion that the Appellant was
guilty of the charge of trafficking.

[36] In the course of doing so, the learned Judge had considered the
evidence of the Appellant. Just because the learned HCJ had ruled
against the Appellant did not mean that he had been unfair in his
treatment of the Appellants evidence. In fact, the learned trial Judge
had subjected the version of the Appellant to the reasonable test to see
whether it could have been reasonably probable in the circumstances of
the case. At the end of that exercise, the learned trial Judge had found
the version of the Appellant to be unreasonable. It was the defence of
the Appellant that he was bringing the red bag, P2 for someone to be
given to someone else in Kuala Lumpur. In other words, he was a mere
innocent carrier. He only was told that the bag had contained the
sarees, simpliciter. For his effort, he was given Ringgit 600. In short, he
had no knowledge of the impugned drugs. The learned counsel for the
Appellant had referred us to the decision of this Court in the case of
Seyadalireza S. E v PP [2014] 4 CLJ 406 (Seyadalireza case). But
24

the Appellant before us did not even give the name of the person who
had allegedly given the red bag to him. This kind of a defence is
reminiscent of the Alcontara notice defence. But that defence requires
that the accused person would need to give a better set of particulars
pertaining to that other person so that the police could be reasonably
expected to usefully work on the particulars given with a view to verify
the veracity of the accused persons version of events pertaining to the
impugned drugs. However, in this case the Appellant did not give such
information to the police so as to facilitate their investigations to verify
the Appellants version. The Seyadalireza case [supra] which was cited
to us by learned counsel for the Appellant therefore, with respect could
not assist the Appellant in his defence. So, the defence of the Appellant
in respect of the issue of presumed possession had been one of a bare
denial. Such defence could hardly contribute usefully towards rebutting
the presumption of possession under section 37(d) of the DDA that was
operating against him.

[37] It was the learned High Court Judges conclusion that from the
overall evidence that was led before him that, the Appellant had cried
when the drugs, Ketamine, were found in the circumstances that they
were [concealed], because he had been caught in the act of trying to
transport the said drugs into this country and that there was nothing that
25

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

away his conduct under section 9 of the Evidence Act 1950 thus he had
failed to rebut the presumption of possession, and he had failed to raise
any reasonable doubt regarding the element of trafficking.

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

again in the records of appeal, we had no reason to disagree with the
findings of the learned trial Judge when he said at age 17 of his GOJ
like so:
Saya yakin bahawa tertuduh menangis kerana beliau telah
tertangkap dan tiada apa yang beliau boleh lakukan untuk
menyelamatkan dirinya.

[39] We agreed with the learned Judges refusal to accede to the

Appellants submission that the Appellant did not have any knowledge
of the existence of the drugs ingeniously concealed among the flowers
embroiled on the respective sarees. The totality of the circumstances as
found by the learned trial Judge had led to only one reasonable
conclusion, namely that the drugs were so concealed and transported
by the Appellant with a view to have them trafficked. We needed only to
refer to the observation made by learned Chief Justice in the Singapore
case of Zulfikar bin Mustaffah v PP [2001] 1 SLR 633 like so:
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We are unable to accede to this request. While the fact that the
contents of the bundles were hidden from view may have been
relevant in determining whether the requisite knowledge was
absent, this factor should still not be given too much weight.
Otherwise, drug peddlers could escape liability simply by
ensuring that any drugs coming into their possession are first
securely sealed in opaque wrappings. Rather the court appraise
the entire facts of the case to see if the accuseds claim to
ignorance is credible.

[40] The above observation by the learned Chief Justice was approved
of and was adopted by our Federal Court in the case of Parlan bin
Dadeh v PP [2009] 1 CLJ 727. We had no reason to depart from that
approach in this appeal before us.

[41] At the end of the appreciation of the defence evidence and in the
context of the whole case, the learned HCJ had finally concluded that
the defence had failed on both fronts to rebut the presumption of
possession that was operating against him and also that he had failed
to raise a reasonable doubt pertaining to the element of trafficking in the
charge. He had then convicted the Appellant on the charge and had
sentenced him to death [to an appropriate sentence: dijatuhi hukuman
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yang sewajarnya [see page 18 GOJ] being the only sentence

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

[42] In the upshot, based on the aforesaid grounds, we had found that
there was no merit in this appeal. We had therefore dismissed this
appeal and we had affirmed both the conviction and sentence imposed
by the learned HCJ. We had so ordered accordingly.

Dated: 6 January 2016

ABANG ISKANDAR BIN ABANG HASHIM

Judge
Court of Appeal

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Parties Appearing:
For the Appellant: Mr. Hamid Ismail (Messrs. Hamid & Co- Assigned
Counsel)
For the Respondent- Mr. Hamdan bin Hamzah, Deputy Public
Prosecutor.

Cases referred to:

1. Formi Afta Ahmad & Anor v PP [2013] 9 CLJ 183
2. Junaidi bin Abdullah v PP [1993] 4 CLJ 201
3. Khoo Hii Chiang v PP [1994] 2 CLJ 151
4. Mat v PP [1963] 1 LNS 82
5. Mohamad Radzi bin Yaacob v PP [1991] 3 MLJ 169
6. Mohamad Yazri bin Minhat v PP [2003] 2 MLJ 241
7. Mohammad Radzi bin Abu Bakar v PP [2006] 1 CLJ 457
8. Parlan bin Dadeh v PP [2009] 1 CLJ 727
9. PP v Yuvaraj [1968] 1 LNS 116
10. Warner v. Metropolitan Police Commissioner [1969] 2 AC 265
11. Zulfikar bin Mustaffah v PP [2001] 1 SLR 633

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