DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA

(BIDANG KUASA RAYUAN)

RAYUAN JENAYAH NO : B-05(M)-58-01/2016

ANTARA

CHEU KOK CHOON … PERAYU

DAN

PENDAKWA RAYA … RESPONDEN

[Dalam Perkara Mahkamah Tinggi Malaya Di Shah Alam Perbicaraan Jenayah No: 45A-136-12/2014

Antara

Pendakwa Raya

Dan

Cheu Kok Choon]

CORAM

MOHD. ZAWAWI BIN SALLEH, JCA IDRUS BIN HARUN, JCA

KAMARDIN BIN HASHIM, JCA

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GROUNDS OF JUDGMENT

[1] The appellant in this appeal was tried in the High Court under

section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234 for short) for

an offence of trafficking in dangerous drug involving 560.1 grammes of

methamphetamine which is punishable under section 39B(2) of the same

Act. He was convicted of the offence and sentenced to death by the High

Court. This appeal is against the decision of the High Court in which the

appellant was convicted and sentenced for the above offence. On

11.8.2017 this appeal was dismissed by this Court. At that instant, we did

state that reasons in writing would be given for that dismissal in due

course and this we now do. We begin by setting out the charge against

the appellant which reads –

“Bahawa kamu pada 6 Mac 2014, lebih kurang jam 6.59 pagi bertempat

di kawasan Balai Perlepasan Dalam Negeri, LCCT Sepang, di dalam

Daerah Sepang, di dalam negeri Selangor Darul Ehsan, telah didapati

memperedarkan dadah berbahaya iaitu seberat 560.1 gram

Methamphetamine dan dengan itu kamu telah melakukan suatu kesalahan

dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh

dihukum di bawah Seksyen 39B(2) Akta yang sama.”

[2] The material facts upon which the prosecution’s case is based

are simple and straight forward. On 6.3.2014 at approximately 6.59

am, Constable Mohamad Shahril bin Tambi Chik (PW3) was on duty

at the security check point where there was a AMD or Alloy Metal

Detector Machine (the detector machine for short) to screen

passengers at the Departure Hall of the Low Cost Carrier Terminal

Sepang (the LCCT for short). With PW3, at that particular time, was

Constable Mohd Khuddri Isa. It was led in evidence that the detector

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machine sounded when the appellant was walking through it

indicating that it had detected the presence of metal objects. PW3

then proceeded to make a physical body inspection on the accused

following which he felt some object below the appellant’s waist. The

appellant at the relevant time wore a blue shirt and a pair of blue

jeans. When PW3 questioned the appellant about it, the appellant

told PW3 that it was his body fat. As PW3 was suspicious of the

answer, the appellant was then brought by PW3 to a room which was

located behind the detector machine for thorough inspection. Whilst

in the room, PW3 told the appellant to take off his trousers and PW3

noticed thereafter that the appellant was wearing a pair of black tights

instead of an underwear. The appellant then took out from his tights

a pink cloth bag [Exhibit P8] and 2 black cloth bags [Exhibits P9 and

P10]. Upon being told subsequently by PW3 to open the 3 bags the

appellant opened the bags and from inside these bags he took out 3

plastic packets [Exhibits P8A, P9A and P10A] which were found to

contain powdery crystal substances [Exhibits P11, P12 and P13].

When PW3 asked the appellant what was the thing in the 3 plastic

packets the appellant said it was ‘syabu’.

[3] After the search, the appellant, together with the drug exhibits

were brought by PW3 to a police station situated at the LCCT where

PW3 lodged a police report [Exhibit P17]. From the LCCT police

station, PW3 accompanied by police escorts, brought the appellant

and the incriminating exhibits to Sepang Police Station (IPD Sepang).

Whilst at the IPD Sepang, PW3 marked the 3 cloth bags as S1, S2

and S3 and the 3 plastic packets as S1A, S2A and S3A. PW3 also

found from the wallet taken from the rear pocket of the appellant’s

trousers cash in the sum of RM2,429.00. A search list (Exhibit P18A-

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D) for the exhibits seized from the appellant was also prepared by

PW3. On the same day at about 1 pm, PW3 handed over the

appellant and all the exhibits listed in the handing over exhibits list

(Exhibit P19A-F) to the investigating officer, PW6 who kept the

exhibits in a cupboard in his office under lock and key. PW6 also

marked Exhibit P8 as AA, Exhibit P8A as AA1, Exhibit P9 as AB,

Exhibit P9A as AB1, Exhibit P10 as AC and Exhibit P10A as AC1

before they were placed in the cupboard.

[4] On 7.3.2014, PW6 sent Exhibits P8, P8A, P9, P9A, P10 and

P10A which were placed inside a sealed box marked as A (Exhibit

P7) to the chemist, PW1 for analysis. The evidence of PW1 as well

as the chemist report (Exhibit P6) prepared by her, were hardly

challenged by the defence and it confirmed on analysis that Exhibit

P8A contained 188.4 grammes of methamphetamine, Exhibit P9A

contained 182.0 grammes of methamphetamine and Exhibit P10A

contained 189.7 grammes of methamphetamine. The combined

weight of the illicit drug is 560.1 grammes which is the weight

specified in the charge. The drug is comprised in the First Schedule

of Act 234 and therefore is dangerous drug as defined in section 2

thereof. On 14.7.2014, PW6 received Exhibit P7 together with a

chemist report (Exhibit P6) from PW1. The exhibits were kept in the

exhibits store at IPD Sepang under lock and key until it was produced

in the High Court during the trial of this case.

[5] On 11.3.2014, PW6 had also sent a specimen of the appellant’s

blood (Exhibit P26), a pair of the appellant’s blue jeans (Exhibit P22)

and a pair of the appellant’s black tights (Exhibit P24) to the chemist,

PW4. PW6 received these exhibits together with a chemist report

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(Exhibit P28) from PW4 on 3.11.2015. We could glean from Exhibit

P28 that, based on the analysis conducted by PW4, only 2 bags that

is Exhibits P8 and P10 were found to contain traces of the appellant’s

DNA profile and as regards the other bag (Exhibits P9), no traces of

DNA could be extracted thereform.

[6] At the close of case for the prosecution, the learned judge made

the following findings:

a. the evidence of PW1 sufficiently proved that the incriminating

powdery crystal substances consisted of 560.1 grammes of

methamphetamines;

b. the prosecution had proven that the appellant was in

possession of the impugned drug which was hidden inside

the pair of tights that the appellant wore. From the way the

drug was carefully kept in the 3 cloth bags and concealed

under the appellant’s waist by the pair of tights he was

wearing, it could be inferred that the appellant had

knowledge of the impugned drug. The fact that he was

wearing the pair of tights instead of an underwear showed

that the appellant wanted to secure the drug closely to his

body and to prevent it from falling out and to avoid detection;

c. there was no doubt that the drug recovered by PW3 was the

same drug sent to and examined by PW1 and subsequently

produced in court as evidence. Every link in the chain of

evidence relating to the custody of the drug exhibit from the

moment the exhibit was recovered by PW3 up to the time it

was produced in court was sufficiently proven by the

prosecution;

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d. even though there were some discrepancies in PW3’s

evidence, they were not material and did not affect the

strength of the prosecution’s case, his evidence was more

than sufficient to prove possession of the impugned drug by

the appellant;

e. as the weight of the drug was 560.1 grammes in excess of

the stipulated statutory limit, the presumption of trafficking

under section 37(da) of Act 234 was invoked; and

f. the prosecution had succeeded in proving a prima facie case

of drug trafficking against the appellant as charged. The

appellant was called upon to enter on his defence.

[7] The appellant in his defence tendered himself as a witness.

Save for the appellant, no other witnesses were called to testify on

behalf of the defence. On the facts of the defence evidence, the

position adopted for the appellant is that in essence, on 6.3.2014 the

appellant passed through the metal detector machine before he

boarded an aircraft bound for Labuan. When the machine made a

sound, a police personnel conducted a body inspection on him and

thereafter directed him to go to a room where his wallet and luggage

were inspected. The appellant testified that he carried some cash

and he refused to give the money in his wallet. He claimed that the

police personnel then gave the drug to him whilst he was in the room

and he was told to hold it. The appellant was subsequently taken to

the police station at the LCCT after which he was taken to IPD

Sepang. At IPD Sepang, the appellant claimed that he told the police

that he carried cash RM50,000.00 in his luggage bag and when he

refused to give the money to the police personnel at the LCCT, they

brought out the 3 packets of drug which the appellant denied any

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knowledge of its contents. However, the police officer at IPD Sepang

did not believe the appellant and they instead gave him a good

beating. The appellant insisted that the drug did not belong to him

and he only knew the 3 packets contained the drug after the police

opened them at IPD Sepang.

[8] Under cross-examination, the appellant maintained his earlier

evidence that the police personnel framed him up by giving him the

drug when he refused to give the money. The appellant however

admitted that he did not lodge a police report the reason being that he

was sent to the prison in Sungai Buloh. He agreed to a suggestion

by the learned Deputy Public Prosecutor that when he was brought

before a Magistrate he had the opportunity to lodge a complaint that

he was beaten up by the police and that the police set him up but he

did not do so. The appellant also agreed that he could have asked

his family or counsel to make a police report and that he did not know

the motive of the police to push the drug to him.

[9] In his grounds of judgement, the learned judge accepted the

evidence of PW3 holding that there were no cogent reasons to

disbelieve him. PW3, according to His Lordship, was not an

interested witness but a police officer performing his duty at the LCCT.

Further, there was no evidence adduced by the appellant to show that

PW3 bore any grudge against the appellant or had any evil motive

against him. The learned judge rejected the defence version that the

case against the appellant was a police set up and accepted the

prosecution’s case that the drug was found inside the appellant’s pair

of tights. As regards the alleged cash of RM50,000.00, the learned

judge found that there was not an iota of evidence to prove the said

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amount existed and that the defence failed to put the appellant’s case

of the police frame-up in detail that is the police found his cash of

RM50,000.00 and when he refused to give them, they took out the

drug and framed him up. Accordingly, the defence failed to rebut on

a balance of probabilities the presumption of trafficking under section

37(da) of Act 234. The appellant was found guilty as charged and

sentenced to death by hanging.

[10] We shall now to consider the appeal by the appellant which

without doubt, turns upon a pure question of fact. It centres on the

principal issue concerned with the evidence of PW4 that the DNA

traces of the appellant were not found on a bag marked AB (Exhibit

P9) which, we apprehend, immediately raises the question as to who

was the owner of the said bag, could it be that the bag and the other

2 bags from which the drugs were found belonged to an unknown

person. It thus brings us to the argument that it did not make sense

for the learned judge to hold that all the drugs found in the 3 bags

belonged to the appellant. In our judgement in this appeal, it would

be useful to remember that the evidence of PW4 showed that she

received Exhibits P8, P9 and P10 from PW1. These exhibits were the

3 bags which were found to contain the 3 plastic packets containing

the impugned drug hidden inside the appellant’s pair of tights which

he wore at the material time. The chemist report which was prepared

by PW4 (Exhibit 28) reveals that only 2 bags, that is, Exhibits P8 and

P10 were found to contain traces of DNA profile of the appellant

whereas with regard to the other bag that is Exhibit P9, no traces of

DNA could be extracted from it. PW4 in her oral testimony explained

that she tried to obtain DNA traces but no such traces were found on

Exhibit P9. Elaborating further, PW4 testified that she tried to obtain

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DNA traces based on the traces of sweat on the bag in question but

this would be dependent on the person who held the bag that is

whether he was sweating when he held the bag and more accurately

or he touched the bag for a shorter or longer time. If the bag was held

or touched for a longer time there was a possibility that DNA traces

would be left on the bag.

[11] In his grounds of judgement, the learned judge observed that

PW4 had explained giving reasons why the traces of DNA were not

found as opposed to the bags marked as Exhibits P8 and P10. The

above evidence shows that PW4 had given her explanation and one

thing seems to be clear to us that is that the learned judge accepted

the said explanation and rejected the contention urged for the defence

that there was a doubt as to the actual person having possession of

all the 3 bags. We find no reasons whatsoever to disturb the factual

finding made by the learned judge and we accept PW4’s explanation

on the absence of the appellant’s DNA profile as reasonable under

the circumstances of the case.

[12] In any event, it is a significant point to emphasise that,

notwithstanding the above finding, the learned judge correctly held

that without considering the findings of the DNA that would

corroborate the connection between the appellant and the drug found

in the 3 bags, there was overwhelming evidence to show that the

appellant had possession of the proscribed drug at the material time.

We would say on this aspect that where there is clear evidence

indicating the identity of the offender, finger print evidence, and if we

may add, DNA traces of the offender assumes little value or

significance. It is only in a situation where the identity of the culprit is

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in question or required to be proved, fingerprint or DNA evidence will

greatly help the prosecution in proving the identity of the offender. We

find support in this proposition by referring to the decision in the case

of Public Prosecutor v Mansor Md. Rashid & Anor [1997] 1 CLJ

233 in which at page 250 the Federal Court there said–

“Where the identity of a culprit is in question or required to be proved,

fingerprint evidence would be of great significance and immense value. In

the present case under appeal, however, the charge alleged trafficking in

the form of sale and there is evidence indicating the identities of the alleged

offenders and the sale transaction. Fingerprint evidence on the

newspaper wrapping, white plastic and the loytape, therefore, assumes

little value or significance.”

[13] The prosecution had adduced sufficient evidence to show that

the appellant was in actual physical control and custody of the 3 bags

hidden in his pair of black tights found to contain the impugned drug.

There can be no doubt whatsoever that the appellant had knowledge

and thus possession of the illicit drug. The prosecution had adduced

more than sufficient evidence upon which the learned judge was

justified to found a conviction against the appellant. We do not think

that the law imposes a burden of proof higher than is necessary and

requires the court to determine not whether there is sufficient

evidence to warrant a conviction of the accused but to determine that

the methodology of the police investigation must be 100% correct

regardless of the fact that the police had gathered sufficient evidence

to sustain a conviction against the appellant. In the case of Public

Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 this is

what the court at page 593 said –

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“In the present case, the prosecution had clearly established that the

accused was in actual physical custody and control of P3 and its contents.

From the totality of the evidence, the prosecution had also clearly

established that the accused had the necessary knowledge of P6A-H and

the nature of the dangerous drugs in question. In the circumstances, I

cannot find fault with the police for failing to send the exhibits to the chemist

in order to carry out finger print tests. The contention of the learned

defence counsel, with due respect, amounts to nothing more than to ask

this court to determine not whether there was sufficient evidence adduced

before this court to warrant a conviction of the accused but to determine

that the methodology of the police investigation must be 100% correct

regardless of the fact that the police had gathered more than sufficient

evidence to sustain a conviction of the accused. I cannot lend a judicial

countenance to such a contention.”

[14] The learned judge invoked the presumption of trafficking under

section 37(da) of Act 234 as the weight of the drug far exceeded the

statutory weight prescribed in paragraph (xvi) thereof. In order to

raise presumed trafficking under section 37(da) of Act 234 it is

necessary for the prosecution to prove the basic or primary fact that

would show that at the material time the appellant was in

possessions of the illicit drug. The word ‘found’ in the opening

phrase of section 37(da) connotes a finding during a trial by the

court. Therefore, a finding of possession of the drug is necessary.

This is the basic or primary fact which is incumbent on the

prosecution to prove and for the court to be satisfied that such fact

is established before the presumed trafficking of the drug can be

invoked [Muhammed bin Hassan v Public Prosecutor [1998] 2

MLJ 273].

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[15] Now what is the evidence of basic or primary fact which

constitute possession of the impugned drug which the learned judge

said had been proven by the prosecution. From the evidence of

PW3, it is abundantly clear that the drug was found inside the pair of

tights that the appellant wore. The learned judge was without

question correct to hold that the appellant was caught red handed

with the drug under his custody and control. But, is there sufficient

evidence from which knowledge of the drug could be inferred. The

element of knowledge necessary to prove possession, according to

the learned judge, could be inferred from the conduct of the appellant

in carefully keeping the drug in the 3 bags and concealing them

under the appellant’s waist by the pair of tights the appellant was

wearing. It is said that to establish possession by an accused person

of any dangerous drugs it must first be shown that he had knowledge

of the drugs which were to be in his possession [Public Prosecutor

v Badrulsham bin Baharom [1988] 2 MLJ 585].

[16] We find no reasons to disagree with the learned judge’s finding

that the conduct of the accused in wearing the pair of tights instead

of an underwear clearly showed the appellant intended to secure the

drug closely to his body and to prevent them from falling out or avoid

from being detected by visual examination. The law is now obvious

and trite that the method employed to carry a drug may furnish

evidence of knowledge. This Court in the case of Teh Hock Leong

v PP [2008] 4 CLJ 764 laid down this proposition which was affirmed

subsequently by the Federal Court and reported in Teh Hock Leong

v Public Prosecutor [2010] 1 MLJ 741. We quote from the decision

of this Court the relevant excerpts –

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“[7] It is true that mens rea possession is an element of the offence of

trafficking. But it is an element like the mental element in other crimes

which cannot be established by direct evidence save in a case where an

accused expressly admits the commission of the offence. It has, like the

mens rea in other offences, to be established by circumstantial evidence.

In other words it is an ingredient that is to be inferred from the totality of

the circumstances of a particular individual case. We can here do no better

than to quote from the judgement of Lord Diplock in Ong Ah Chuan v.

Public Prosecutor [1981] 1 MLJ 64, at p.69:

Proof of the purpose for which an act is done, where such purpose

is a necessary ingredient of the offence with which an accused is

charged, presents a problem with which criminal courts are very

familiar. Generally, in the absence of an expressed admission by

the accused, the purpose with which he did an act is a matter of

inference from what he did. Thus, in the case of an accused caught

in the act of conveying from one place to another controlled drugs

in a quantity much larger than is likely to be needed for his own

consumption in the inference that he was transporting them for the

purpose of trafficking in them would, in the absence of any

plausible explanation by him, be irresistible- even if there were

no statutory presumption such as is contained in section 15 of the

Drugs Act.

[8] Turning to the facts of the present instance, we agree with the

learned trial judge that the method employed to bring the drugs in

question from Thailand into Malaysia was done in a most cunning

fashion to escape detection by the authorities. The method

employed to convey or transport a drug may sometimes furnish

evidence of knowledge. For example, an attempt to carefully conceal

a drug may indicate an intention to avoid detection and thereby point

to knowledge. Of course it all depends on the facts of each individual

case.” [our emphasis]

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[17] We would additionally hold that the fact that the drug was found

inside the appellant’s pair of tights which he wore clearly indicated

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

with, dispose of, or exclude other persons from enjoyment of, the

same [PP v Denish Madhavan [2009] 2 CLJ 209].

[18] The Federal Court in Public Prosecutor v Abdul Rahman bin

Akif [2007] 5 MLJ 1 adopted the approach taken by the House of

Lords in Warner v Metropolitan Police Commissioner [1968] 2 All

ER 356 in considering the evidence necessary before a person could

be deemed to be in possession of a prohibited substance in which

Lord Morris dealt with the question as follows:

“If there is assent to the control of a thing, either after having the means of

knowledge of what the thing is or contains or being unmindful whether

there are means of knowledge or not, then ordinarily there will be

possession. If there is some momentary custody of a thing without any

knowledge or means of knowledge or what the thing is or contains then,

ordinarily, I would suppose that there would not be possession. If,

however, someone deliberately assumes control of some package or

container, then I would think that he is in possession of it. If he deliberately

so assumes control knowing that it has contents, he would also be in

possession of the contents. I cannot think that it would be rational to hold

that someone who is in possession of a box which he knows to have things

in it is in possession of the box but not in possession of the things in it. If

he had been misinformed or misled as to the nature of the contents, or if

he had made a wrong surmise as to them, it seems to me that he would

nevertheless be in possession of them.”

[19] We bear in mind the correct principle so lucidly expressed in the

above case and we would say that so far as the evidence shows,

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there is no doubt that the appellant was in physical control of the 3

bags and its contents. Considering the manner in which the bags

were concealed, it would not be rational for this Court to hold that the

appellant who was in possession of the bags did not have possession

of the drugs kept in these bags. It is extremely clear that the appellant

was in possession of both the bags and the drug in it and as such the

learned judge was correct in invoking the presumption of trafficking in

the said drug pursuant to section 37(da) of Act 234. We would also

add that the appellant had no reasons to conceal the bags inside the

pair of tights which he wore if he truly did not know the contents of the

bags. It certainly did not reflect an innocent mind. In Muhammad

Yusuf v PP [2011] 9 CLJ 488, where the appellant was found to have

concealed the packages which contained dangerous drug on different

parts of his body, this Court held that such conduct did not reflect an

innocent mind. Suffice to say, no innocent person in the right frame

of mind would have hidden the bags inside the pair of tights he is

wearing unless he is carrying something he consciously knew to be

incriminating and he did so in order to avoid detection by the relevant

enforcement agency. The conduct of the appellant in concealing the

3 bags in our view gives rise to a clear inferences of the the existence

of knowledge on the part of the appellant of the drug and thus the

appellant could be said to have the mens rea possession of the same

[Chiew Thien Leng v. Public Prosecutor [2014] 1 LNS 347].

[20] It was strenuously contended for the appellant that he was the

victim of a police frame up. According to the appellant, he refused to

give the cash money to the police and as a result, the police gave the

3 bags containing the impugned drug and directed him to hold them.

Thereafter, the police took photographs of the appellant after which

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he was taken to the LCCT police station with the drug in his hands.

Later on, the appellant was brought to IPD Sepang where the

appellant alleged that he informed the police that he only carried with

him cash of RM50,000.00 in his luggage bag and when he refused to

give the cash to the police at the LCCT, the police personnel brought

out the 3 packets of drug which the appellant denied any knowledge

of its contents. It would appear from the appellant’s line of defence

that the police had acted mala fide against him but why the police had

done so, the appellant was not able to offer a plausible explanation.

The learned judge had carefully considered this issue and found that

the defence was wholly untenable and failed to rebut on the balance

of probabilities the presumption under section 37(da) of Act 234.

[21] We agree with the learned judge’s finding that under cross-

examination, the appellant testified that he did not know the motive of

the police to push the drug to him. It was also in evidence that the

appellant did not lodge a police report pertaining to his complaint of

the alleged police frame-up even though there was ample opportunity

to do so through his family or his lawyer or to the magistrate when he

was brought to the magistrate court to be remanded.

[22] The learned judge had observed the demeanour of the

prosecution’s material witness namely PW3 and was satisfied that he

was a credible witness. There was, moreover no evidence adduced

by the appellant to show that PW3 bore any grudge against him. PW3

was merely carrying out this duty and he reacted correctly when the

detector machine sounded by proceeding to conduct a physical

inspection on the appellant and when he felt some object below the

appellant’s waist he questioned the appellant about it. But when PW3

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was suspicious of the answer the appellant gave, PW3 decided to

conduct a thorough inspection in the room at the LCCT. This action

in our judgement, was to be expected of a police officer and the whole

process of questioning and inspection conducted by PW3 was in fact

in the normal and ordinary course of duty of a police personnel. There

was obviously an absence of relevant or clear bad faith or evil motive

in what PW3 had done.

[23] Further, as the learned judge had correctly held, it was

inherently improbable that PW3 could have produced the 3 bags

containing drug from nowhere and used to frame up the appellant.

The appellant it is to be observed, did not even mention where did

PW3 take the bags from. Surely if the defence story was true, the

appellant could have told the court where was the drug taken from by

PW3. We also agree with the finding by the learned judge that there

was not an iota of evidence to prove that the cash of RM50,000.00

existed. In fact, as the evidence showed, only cash of RM2429.00

was recovered by PW3 from the appellant’s wallet found in the back

pocket of the appellant’s blue jeans (Exhibit P18 (a-d)). In the end,

the complete absence of any evidence on the alleged RM50,000.00,

we would hold without any hesitation that the appellant’s testimony in

respect of the money is a figment of his imagination and the learned

judge was absolutely right in rejecting it.

[24] In any event, it ought to be mentioned that the appellant’s

defence that he was set up by the police was never specifically put to

the prosecution’s witnesses in particular PW3, in detail that the police

found RM50,000.00 and when he refused to give them, the police

personnel took out the bags containing the drug and gave it to him.

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This failure as the learned judge correctly held, could move the trial

court to dismiss this particular line of defence as an afterthought or a

recent invention. The law on this subject must be taken to be well

settled that is, the necessity to put the essence of his case to the

material prosecution’s witnesses is not a mere technical rule of

evidence, it is indeed a rule of essential justice so that any such failure

by the defence would have serious implication on the accused’s

credibility and the weight to be attached to his evidence. We now

quote from the Federal Court’s decision in Siew Yoke Keong v PP

[2013] 4 CLJ 149 the following excerpts on this subject :

“We do not think the learned trial judge could be faulted for that. In

Alcontara Ambross Anthony v. PP, the Federal Court said :

In a criminal trial, the whole point and purpose of the defence having

to put its case to such of the prosecution witnesses as might be in

a position to admit or deny it, is to enable the prosecution to check

on whether an accused’s version of the facts is true or false, and

thus avoid the adverse comment, that the defence is a recent

invention in other words, “kept up its sleeve”, as it were – and

revealed for the first time when the accused makes his defence from

the witness box or the dock, thus detracting from the weight to be

accorded to the defence. However, failure on the part of the

defence to put its case as aforesaid, can never, by itself, relieve the

prosecution of its duty of establishing the charge against the

accused beyond any reasonable doubt.

[46] Although failure on the part of the defence to put its case to the

material prosecution’s witness, can never by itself relieve the prosecution

of its duty to prove the charge against the accused beyond reasonable

doubt (Alcontara Ambross Anthony v. PP), such failure by the defence did

have serious implication on the accused’s credibility and the weight to be

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attached to his evidence. The necessity of putting the essence of his case

to the material prosecution’s witness is not a mere technical rule of

evidence. It is a rule of essential justice. In PP v. Dato’ Seri Anwar Ibrahim

(No. 3) [1999] 2 CLJ 215; [1999] 2 MLJ 1, at pp. 424-425 (CLJ); 193-194

(MLJ) Augustine Paul J. (as he then was) said:

The nature of the defence is to be ascertained not only from the

evidence of the accused himself but also from the trend of the cross-

examination of the prosecution witnesses and from the arguments

of the accused’s counsel at the close of the trial (see Kuli E Ors v.

Emperor AIR 1930 Call 442). It is therefore important for the

accused to put his essential and material case to the prosecution

witnesses in cross-examination. This is a principle of essential

justice and was neatly stated by Mukhriji J in AEG Carapiet v. AY

Derderian AIR 1961 Cal 359 in the following terms:

The law is clear on the subject. Whenever the opponent has

declined to avail himself of this opportunity to put his essential

and material case in cross-examination, it must follow that he

believed that the testimony given could not be disputed at all. It

is wrong to think that is merely a technical rule of a evidence. It

is a rule of essential justice. It serves to prevent surprise at trial

and miscarriage of justice, because it gives notice to the other

side of the actual case that is going to be made when he turn of

the party on whose behalf the cross-examination is being made

comes to give and lead evidence by producing witnesses. It

has been stated on high authority of the House of Lords that

this much a counsel is bound to do when cross- examining that

he must put to each of his opponent’s witnesses in turn, so

much of his own case as concerns that particular witness or in

which that witness had any share. If he asks no questions with

regard to this, then he must be taken to accept the plaintiff’s

account in its entirety. Such failure leads to miscarriage of

justice, first by springing surprise upon the party when he has

20

finished the evidence of his witnesses and when he has no

further chance to meet the new case made which was never put

and secondly, because such subsequent testimony has no

chance of being tested and corroborated.

[47] In Wong Swee Chin v. PP [1980] 1 LNS 138; [1981] 1 MLJ 212 at

p. 213, the Federal Court said:

A correct statement of the law is that failure of the defence to cross-

examine the prosecution witnesses on the matter merely goes to

the credibility of their testimony, to wit, the fact they found the

ammunition in the appellant’s trouser pockets remains unshaken.

On this point we need only say there is a general rule that failure to

cross-examine a witness on a crucial part of the case will amount to

an acceptance of the witness’s testimony. But as is common with

all general rules there are also exceptions as pointed out in

judgement of the Supreme Court of New Zealand in Transport

Ministry v. Garry where Haslam J. said at page 122:

In Phipson on Evidence 11th edition paragraph 1544 the

learned authors suggest examples by way exception to the

general principle that failure to cross-examine will amount to

an acceptance of the witness’s testimony, viz where.

…The story is itself of an incredible or romancing character, or the

abstention arises from mere motives of delicacy…or when counsel

indicates that he is merely abstaining for convenience, e.g to save

time. And where several witnesses are called to the same point it

is not always necessary to cross-examine them all.”

[25] Before we conclude, a point of importance which the learned

judge dealt in his grounds of judgement concerned the issue of the

identify of the impugned drug with respect to which His Lordship was

21

satisfied of the unbroken chain of evidence relating to the custody of

the drug exhibit right from the time it was seized from the appellant

and sent to PW1 for analysis until it was produced in court during the

trial as evidence. So far as the evidence showed, we cannot find

fault with the learned judge’s careful analysis of the evidence

concerning the chain of evidence on the custody of the drug exhibits.

We shall not delve on the issue in great detail in this judgement as

this is not the issue in contention in this appeal, but for

completeness, we ought to mention that it is apparent on our careful

perusal of the notes of evidence, that the appellant failed to cross-

examine the prosecutions witnesses in connection with the identity

and the evidence relating to the movement and custody of the drug

exhibits. Therefore such failure goes to the credibility of the

appellant and amounts to an acceptance of the prosecution’s

witnesses evidence.

[26] We think it is proper and clear at this concluding stage for a

finding to be made that the learned judge had made a correct and

adequate judicial appreciation of the entire evidence resulting at the

end in a rejection of the defence case. The learned judge had audio-

visual advantage of the witnesses who testified during the trial and

was satisfied that the prosecution’s witnesses in particular PW3

were credible whose evidence could be acted upon. We have

absolutely no reasons to interfere with the findings made by the

learned judge that the defence failed to rebut the presumption of

trafficking in the dangerous drug specified in the charge under

section 37(da) of Act 234 on the balance of probabilities. For the

reasons that we have given, we are satisfied that the charge of

trafficking under section 39B(1)(a) of Act 234 was successfully

22

proved by the prosecution beyond reasonable doubt and accordingly

we affirm the conviction and sentence made by the learned judge.

The appeal is dismissed.

Signed

( IDRUS BIN HARUN ) Judge

Court of Appeal, Malaysia Putrajaya

Dated: 29 August 2017 1. Solicitor For The Appellant - Tuan W.C. Chiang

Chiang Chambers

No.25-3, Jalan PJU 5/3

PJU 5, Dataran Sunway

Kota Damansara

478100 Petaling Jaya

2. Solicitor For The Respondent - Tuan Ahmad Sazilee bin Abdul Khairi

Timbalan Pendakwa Raya

Bahagian Perbicaraan dan Rayuan

Jabatan Peguam Negara

No. 45, Persiaran Perdana

Presint 4

62100 Putrajaya