rayuan jenayah no: a-05-120-2009 antara mohd kamal bin osman

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DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN JENAYAH NO: A-05-120-2009
ANTARA
MOHD KAMAL BIN OSMAN ---- PERAYU
DAN
PENDAKWA RAYA ---- RESPONDEN
Dalam Mahkamah Tinggi Malaya Di Taiping
Perbicaraan Jenayah No: 58-13-2001
CORAM:
Pendakwa Raya
lawan
Mohd Kamal bin Osman
(1) HASAN BIN LAH, JCA
(2) ABDUL MALIK BIN ISHAK, JCA
(3) SYED AHMAD HELMY SYED AHMAD, JCA

Introduction
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ABDUL MALIK BIN ISHAK, JCA
DELIVERING THE JUDGMENT OF THE COURT
[1] Before the Taiping High Court, the appellant was charged for an
offence of trafficking in dangerous drugs, to wit, 4,089 grammes of
cannabis, an offence under section 39B(1)(a) of the Dangerous Drugs Act
1952 (“DDA”) and punishable under section 39B(2) of the DDA. The
charge against the appellant reads as follows:
“Bahawa kamu pada 28.2.2001 jam lebih kurang 8.40 malam di Batu 2
½ Jalan Simpang, Taiping di dalam Daerah Larut Matang dan Selama
di dalam Negeri Perak, telah didapati mengedar dadah berbahaya
iaitu 4,089 gram cannabis dan oleh yang demikian kamu telah
melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah
Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta
yang sama.”
[2] At the close of the case for the prosecution, the learned High
Court Judge evaluated the evidence on a maximum evaluation and found
that the prosecution had succeeded in proving a prima facie case sufficient
to convict the appellant even if the appellant elected to remain silent and
his Lordship then called for the defence of the appellant under section
39B(1)(a) of the DDA and punishable under section 39B(2) of the DDA
(Looi Kow Chai & Anor v PP [2003] 2 MLJ 65, [2003] 2 AMR 89; and
Balachandran v PP [2005] 1 CLJ 85).

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[3] The appellant elected to give his evidence under oath and he
called no other witnesses. The learned High Court Judge, at the end of the
trial, found that the appellant had failed to create a reasonable doubt in the
prosecution’s case and convicted him accordingly. The appellant was
sentenced to death by hanging. Aggrieved, the appellant now appeals to
this Court.
The prosecution’s case
[4] Within a narrow compass, the prosecution’s case may be stated
as follows. On 28.2.2001, ASP Iyeng a/l Ending Niang (SP4) attended a
briefing conducted by ASP Razali from the narcotics division of the Taiping
district headquarters pertaining to an information that a target riding a
motorcycle bearing registration number AEB 2680 from Kuala Kurau to
Taiping would be trafficking drugs. In that briefing, which was also attended
by Detective Sergeant Major 63152 Ali bin Shafie (SP5) and other police
personnel, ASP Razali divided the members of the police party into three
teams.
[5] Approximately at 7.00 p.m., SP4 who drove a motor car together
with his team which included SP5 arrived at the surveillance area which
was near a traffic light at Simpang Empat, Semanggol and waited. At
about 8.15 p.m., SP4 saw a man – the target, riding alone on a motorcycle
bearing registration number AEB 2680 coming from the direction of Bagan

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Serai area and heading towards Taiping. As the motorcycle in question
ridden by the target went past SP4, SP4 saw a black coloured plastic bag
(exhibit “P5C”) in the carrier basket of the said motorcycle. SP4
immediately used a handset to contact and alert Inspector Ng Wei Boon to
tail the said motorcycle. At that time, the said Inspector was leading team
number 3 in another motor car and was located by the road side of
Simpang Empat near to the Kamunting toll. The said Inspector and his
team tailed the said motorcylist – the target, from behind. SP4, who was
driving a motor car, followed suit.
[6] When the target arrived near the Kamunting traffic lights, he
stopped his motorcycle. SP4 also stopped his motor car alongside the
motorcycle and he saw, once again, the black coloured plastic bag (exhibit
“P5C”) in the carrier basket of the said motorcycle. When the traffic light
turned green, the target continued riding his motorcycle towards the
direction of Simpang, Taiping. SP4 continued to follow the target. At 2½
milestone, Jalan Simpang, Taiping, SP4 ordered the target to stop his
motorcycle by overtaking and hemming him to the side of the road and at
the same time shouting the word “Polis” at the target. This forced the
target to stop his motorcycle by the side of the road. SP4 quickly alighted
from his motor car and wanted to check the target (now identified as the
appellant). But the appellant tried to run away and his motorcycle also fell.

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[7] SP4 succeeded in apprehending the appellant with the assistance
of the other members of the police party.
[8] SP4 conducted a body search on the appellant but nothing
incriminating was found on him. SP4 then examined the motorcycle in the
presence of the appellant and the police party and found a black coloured
plastic bag (exhibit “P5C”) in the carrier basket of the motorcycle ridden
by the appellant. The photograph at page 145 of the appeal record shows
the black coloured plastic bag with the drugs in question.
[9] When SP4 opened the black coloured plastic bag (exhibit “P5C”),
he found four (4) compressed slabs of plant materials suspected to be
cannabis. SP4 also detected the pungent smell of the cannabis emanating
from the black coloured plastic bag (exhibit “P5C”).
[10] The evidence of SP4 was amply corroborated by SP5. SP5
travelled in the said motor car with SP4 and SP5 gave a running
commentary on similar terms like SP4 in regard to the narration of the
events preceding the arrest of the appellant. SP5 emphasised that the
appellant rode the said motorcycle alone throughout the episode and that
the appellant tried to run but was duly arrested.
[11] In due course the government chemist – Miss Lam Yoke Ching
(SP6), confirmed that the four (4) compressed slabs of plant materials to be

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cannabis, a dangerous drug within the meaning of the DDA, weighing
4,089 grammes.
[12] Chief Inspector A. Aziz bin Setapa (SP3) testified that the
motorcycle belonged to the appellant’s wife.
The defence
[13] The appellant, a fisherman by profession, testified that upon his
return from fishing in the evening of 28.2.2001, he received a telephone call
from his wife. At that time, his wife had gone to visit a sick relative at the
Taiping Hospital and she wanted to go home and she asked him to fetch
her there.
[14] The appellant then left his house and proceeded to take his
wife’s motorcycle (exhibit “P11”) that was parked under the house of his
brother-in-law. The area wherein the motorcycle was parked was an open
area and anyone could have access to it. The appellant testified that he left
at about 6.00 p.m. to fetch his wife at the Taiping Hospital.
[15] According to the appellant, his wife always used the motorcycle
(exhibit “P11”). Apart from his wife that often used the said motorcycle, his
younger brother-in-law by the name of Sazali also used the said
motorcycle. Sometimes, according to him, the neighbours would borrow the
said motorcycle. The appellant ventured to say that he hardly used the said
motorcycle and that he normally used a bicycle.

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[16] When the appellant was about to ride the said motorcycle, he
saw a black coloured plastic bag (exhibit “P5C”) in the carrier basket of
the said motorcycle. He said that he did not open the black coloured plastic
bag (exhibit “P5C”) because he thought that it was a rain coat belonging to
his wife. He said that he often see his wife kept two raincoats in the carrier
basket of the said motorcycle for herself and for their child. He testified that
the black coloured plastic bag (exhibit “P5C”) was like the ones marked as
exhibits “P6B” and “P6C” in the photographs at pages 144 and 145 of the
appeal record respectively.
[17] When they introduced themselves as “Polis”, the appellant said
that he was still seated astride the motorcycle. Then two male persons
approached him to his right and one female person flanked him to his left.
He was directed to alight from the motorcycle. Both his hands and legs
were handcuffed (“Tangan dan kaki saya digari”) – see page 78 of the
appeal record when the appellant gave evidence at the examination-in-
chief stage.
[18] He denied that, at any time, he tried to escape.
[19] According to him, the police examined the carrier basket of the
motorcycle and took out a black coloured plastic bag (exhibit “P5C”). The
police open the black coloured plastic bag (exhibit “P5C”) in his presence
and told him that it contained “ganja”.

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[20] According to him, the last time he used the motorcycle was two
or three weeks before the incident.
Analysis
[21] We will now proceed to examine the grounds set forth in the
Petition of Appeal. We will begin by making reference to ground two of the
Petition of Appeal which alluded to the failure of the learned High Court
Judge to invoke the adverse inference against the prosecution for the non-
calling of the appellant’s wife by the name of Salmah bt Omar being the
registered owner of motorcycle bearing registration number AEB 2680 that
was ridden by the appellant on that fateful night.
[22] It is apparent that the prosecution elected not to call Salmah bt
Omar – the wife of the appellant and the registered owner of the said
motorcycle, as a witness for the prosecution. Nevertheless, Salmah bt
Omar was offered as a witness to the defence at the close of the
prosecution’s case. The prosecution held the view that Salmah bt Omar is
not a material witness essential to the unfolding of the narration of the
prosecution’s version of the events that took place on that fateful night,
namely, on 28.2.2001 at about 8.40 p.m. at the place mentioned in the
charge.
[23] Both SP4 and SP5 narrated that they saw the appellant was
riding alone on the said motorcycle before he was apprehended. The Court

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is not concerned as to the ownership of the said motorcycle but rather the
possession of the black coloured plastic bag (exhibit “P5C”) that contained
the dangerous drugs found in the carrier basket of the said motorcycle.
[24] The learned High Court Judge rightly referred to the Court of
Appeal case of PP v. Letchumanan Suppiah [2006] 1 CLJ 557 and his
Lordship then decided that section 114(g) of the Evidence Act 1950 did not
apply and it cannot be invoked against the prosecution for the non-calling
of the appellant’s wife. We are concerned here with the custody and control
of the black coloured plastic bag (exhibit “P5C”) found in the carrier basket
of the motorcycle which cannot be related to the ownership of the
motorcycle on which the appellant was riding. That black coloured plastic
bag (exhibit “P5C”) was within sight of the appellant as he rode the said
motorcycle on that fateful day. There was not even an iota of evidence
linking the appellant’s wife to the drugs at all. There was no cross-
examination of SP4 and SP5 that the drugs belonged to the appellant’s
wife.
[25] The prosecution’s case hinged on the evidence of SP4 whose
evidence was corroborated by SP5. The totality of the evidence led by the
prosecution pointed solely to the culpability of the appellant. No one else
was involved. It is our judgment, even without calling the appellant’s wife,

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the prosecution has succeeded in establishing a prima facie case against
the appellant.
[26] Salmah bt Omar – the appellant’s wife, is not a witness
“essential to the unfolding of the narratives on which the prosecution
case is based” (per Lord Roche in Seneviratne v R [1936] 3 All ER 36)
and she is also not an “important and material witness to the case” (per
Mohamed Azmi SCJ in Munusamy v PP [1987] 1 MLJ 492). In our
judgment, the appellant’s wife do not belong to the class of witnesses
described by Lord Roche and Mohamed Azmi SCJ in those two cases so
as to warrant her to be called.
[27] We will now consider grounds four, five and six of the Petition of
Appeal together. They concerned the invocation of the double
presumptions under sections 37(d) and 37(da) of the DDA in the
prosecution’s case and the usage of section 2 of the DDA to prove
trafficking. We have perused through the written grounds of judgment of the
learned High Court Judge and we are constrained to hold that his Lordship
did not resort to using both the presumptions in his judgment. From the
authorities which his Lordship referred to, it is clear that his Lordship
resorted to section 37(d) of the DDA to presume knowledge against the
appellant and his Lordship then referred to section 2 of the DDA to show
that the prosecution had succeeded in proving trafficking. This approach

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was sanctioned by the Federal Court in PP v. Abdul Manaf Muhamad
Hassan [2006] 2 CLJ 129 where Arifin Zakaria FCJ (now Chief Justice of
Malaysia) writing for the Federal Court at page 144 of the report succinctly
said:
“(17) It ought to be stated at the outset that the decision in
Muhammed bin Hassan only prohibits the use of double
presumptions under ss. 37(d) and 37(da) of the Act. It is, therefore,
open to the prosecution to rely on either of the presumptions. In
other words, the prosecution may positively prove possession
without relying on the presumption under s. 37(d) of the Act and go
on to rely on the presumption of trafficking under s. 37(da) of the Act
to support a charge under s. 39B of the Act. See Tunda Apatira &
Ors. v. Public Prosecutor (supra); Msimanga Lesaly v. Public
Prosecutor [2005] 1 CLJ 398 (a decision of the Court of Appeal which
was confirmed by this court in Federal Court Criminal Appeal No: 05-
27-2004(K). Conversely, the prosecution may rely on the
presumption under s. 37(d) to prove possession and seek to prove
by affirmative evidence (independent of the presumption under s.
37(da)) that the accused was in fact trafficking in the dangerous
drug.”
[28] A review of the evidence would show that when the proscribed
drugs were found and seized from the appellant on that fateful night, the
appellant was in possession of the said drugs. At this juncture, it is
germane to refer to the case of Public Prosecutor v. Chan Ah Kow &
Anor [1988] 2 CLJ (Rep) 186, a decision of KC Vohrah J which was also
referred to by the learned High Court Judge. In that case, the second
accused who was riding the motorcycle had control of the motorcycle
where the red plastic bag containing the drugs were placed inside the
carrier basket and due to the proximity between the second accused and

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the carrier basket, the Court held that the second accused was in
possession of the offending drugs by virtue of section 37(d) of the DDA. In
regard to knowledge, at page 194 of the report, KC Vohrah J had this to
say:
“Why would the motor cyclist, the accused, attempt to escape unless
he knew the package he was carrying was non-innocent. There is no
dispute that the red plastic bag was in the motor cycle basket
between his legs. In my view no doubt has been created on the
prosecution’s case as regards the police identification, the accused
being the motor cyclist, he attempting to run away, and the discovery
of the bag of drugs in the motor cycle basket between his legs
affirming that he had control of the drugs.”
[29] Here, there was evidence that both SP4 and SP5 saw the
appellant riding the said motorcycle with a black coloured plastic bag
(exhibit “P5C”) containing the four (4) compressed slabs of plant materials
suspected to be cannabis for quite a distance and tailing the appellant
before he was apprehended at the place mentioned in the charge. The
appellant also attempted to abscond when confronted by SP4 and the
police party. The excerpts of the evidence of SP4 at pages 44 to 45 of the
appeal record are solid evidence of the appellant’s attempt at absconding:
“Sasaran (referring to the appellant) cuba hendak melarikan diri
dengan cuba membelok motosikal keluar semula ke jalan. Saya
berjaya menahan sasaran (referring to the appellant). Pada masa
yang sama pasukan bermotosikal pun sampai dan membantu saya.”

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[30] Likewise SP5 also testified to the same effect pertaining to the
appellant’s unsuccessful attempt at escaping (see page 57 of the appeal
record):
“Apabila sampai di Batu 2 ½, Simpang, ASP Iyeng (referring to SP4)
telah menghimpit motosikal ke tepi kiri jalan. Motosikal itu berhenti.
ASP Iyeng (referring to SP4) dan saya turun dari kereta dan cuba
menangkap lelaki tersebut. Lelaki tersebut cuba melarikan diri.
Belum sempat ia melarikan diri, dengan bantuan anggota lain
sasaran (referring to the appellant) telah ditangkap.”
[31] Both SP4 and SP5 are credible witnesses and they corroborated
one another. Raja Azlan Shah CJ (Malaya) (as His Royal Highness then
was) in Yap Ee Kong & Anor v. Public Prosecutor [1981] 1 MLJ 144,
146, FC, emphasised that the corroborative evidence must be credible:
“In such a situation the principles enunciated by Lord Morris of
Borth-y-Gest in Director of Public Prosecutions v Hester [1973] AC
296, 315 should be applied:
‘The essence of corroborative evidence is that one creditworthy witness
confirms what another creditworthy witness has said ..... The purpose of
corroboration is not to give validity or credence to evidence which is
deficient or suspect or incredible but only to confirm and support that
which as evidence is sufficient and satisfactory and credible: and
corroborative evidence will only fill its role if it itself is completely credible
evidence’.”
[32] Knowledge on the part of the appellant in regard to the contents
of the black coloured plastic bag (exhibit “P5C”), on the facts of the
present appeal, must be judged from the outward conduct of the appellant.
In Ong Ah Chuan v. Public Prosecutor, Koh Chai Cheng v. Public

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Prosecutor [1981] 1 MLJ 64, 69, Lord Diplock had this to say about proof
of knowledge by way of an inference:
“Proof of the purpose for which an act is done, where such purpose
is a necessary ingredient for the offence with which an accused is
charged, presents a problem with which criminal courts are very
familiar. Generally, in the absence of an express admission by the
accused, the purpose with which he did an act is a matter of
inference from what he did.”
[33] Augustine Paul J (later FCJ) in Mohd Farid bin Mohd Sukis &
Anor [2002] 3 AMR 3457; [2002] 3 MLJ 401, after citing a few authorities,
observed that “proof of knowledge is very often a matter of inference”.
[34] Again, the same learned Judge observed in Public Prosecutor
v Reza Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13, at page 20:
“There are many circumstances from which knowledge can be
inferred. One instance is the inference to be drawn from the act of a
person in absconding or fleeing from the scene of a crime.”
[35] We pause here to state categorically that in the context of the
present appeal, the very act of the appellant in attempting to run after
hearing SP4 shouted the word “Polis” was sufficient to conclude that the
appellant had possession of the drugs found in the black coloured plastic
bag (exhibit “P5C”) that was put inside the carrier basket of the said
motorcycle even without resorting to the presumption under section 37(d)
of the DDA.

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[36] Here, the learned High Court Judge indirectly relied on section
37(d) of the DDA without specifically mentioning it after his Lordship
alluded to the case of Public Prosecutor v. Chan Ah Kow (supra).
[37] On the issue of possession, we need to refer to some authorities.
[38] In the Federal Court case of PP v. Abdul Rahman Akif [2007] 4
CLJ 337; [2007] 5 MLJ 1, Arifin Zakaria FCJ (now Chief Justice of
Malaysia) discussed the element of possession in relation to the drugs
found in packages under the seats of a car driven by the accused and also
considered the views of Thomson J in Chan Pean Leon v Public
Prosecutor [1956] 22 MLJ 237 and that of Shankar J in Pendakwa Raya
v Kang Ho Soh [1991] 3 CLJ 2913 as well as the Singapore case of Lim
Beng Soon v Public Prosecutor [2000] 4 SLR 589 and held that the
presence of the three packages in the car without a plausible explanation
from the respondent could give rise to a strong inference that he had
knowledge that the packages contained drugs or things of similar nature.
[39] This would be followed by two authorities emanating from
Singapore. The first would be the case of Ramis a/l Muniandy v PP [2001]
3 SLR 534. There Ramis was seen riding a motorcycle along the Marsiling
Industrial Estate. The Central Narcotics Bureau (“CNB”) officers saw him
parking his motorcycle at the parking lots next to Block 7. Ramis was then
seen walking towards Marsiling Rise and stopping at the front of Block 7.

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Ramis was also seen using his mobile and he was then arrested by the
CNB officers in front of Block 7 and was then taken to his parked
motorcycle. The CNB officers searched Ramis’s motorcycle and found a
“Puma” bag which contained drugs. Evidence was also adduced that the
motorcycle belonged to Ramis. At page 541, Yong Pung How (Chief
Justice of Singapore) aptly said:
“Knowledge of drugs
The starting point in the consideration of this issue was that we had
already concluded that the drugs was already on Ramis’s motorcycle
when he entered the vicinity and that he had physical control of the
drugs. In the absence of any reasonable explanation by Ramis, these
facts were sufficient to lead to a strong inference that Ramis knew
that the bag found on his motorcycle contained drugs.”
[40] The second case would be that of Tan Ah Tee & Anor v PP
[1980] 1 MLJ 49, where Wee Chong Jin (Chief Justice of Singapore)
delivering the judgment of the Court had this to say at page 52 of the
report:
“Indeed, even if there were no statutory presumptions available to
the prosecution, once the prosecution had proved the fact of
physical control or possession of the plastic bag and the
circumstances in which this was acquired by and remained with the
second appellant, the trial judges would be justified in finding that
she had possession of the contents of the plastic bag within the
meaning of the Act unless she gave an explanation of the physical
fact which the trial judges accepted or which raised a doubt in their
minds that she had possession of the contents within the meaning of
the Act.”
[41] It is pertinent to mention that both the Singapore cases were
alluded to by our Federal Court in PP v. Abdul Rahman Akif (supra).

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[42] We will now reproduce the definition of the word “trafficking” as
set out in section 2 of the DDA. It contains a gamut of acts that constitutes
“trafficking”:
“ ‘trafficking’ includes the doing of any of the following acts, that is
to say, manufacturing, importing, exporting, keeping, concealing,
buying, selling, giving, receiving, storing, administering,
transporting, carrying, sending, delivering, procuring, supplying or
distributing any dangerous drug otherwise than under the authority
of this Act or the regulations made under the Act.”
[43] The word “transporting” was employed by the learned High
Court Judge to describe the acts of the appellant in transporting the drugs
and with full knowledge of trafficking in those drugs. His Lordship also held
that the quantity of the drugs indicated that it was not meant for the
appellant’s own consumption. At page 24 of the appeal record, this was
what his Lordship said:
“Seterusnya Mahkamah ini berpuashati bahawa Tertuduh pada
ketika itu sedang membawa (transporting) ganja tersebut dengan
sepenuh pengetahuannya bagi tujuan mengagih atau mengedar
ganja sebanyak 4,089 gram. Jumlah ganja yang banyak itu iaitu 20
kali lebih besar dari peruntukan statutory juga menunjukkan ganja
tersebut bukan untuk kegunaan Tertuduh sendiri.”
[44] The evidence irresistibly points to the appellant transporting the
drugs in the carrier basket of the motorcycle ridden by him. That would be a
clear cut case of trafficking.
[45] The learned deputy public prosecutor submitted that even if
there was a misdirection by the learned High Court Judge, the conviction in

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this appeal is safe and should be upheld as there is overwhelming
evidence against the appellant and that a reasonable tribunal properly
appraised of the available evidence and properly directed itself in
accordance with the decision of the Federal Court in Tunde Apatira & Ors
v Public Prosecutor [2001] 1 MLJ 259 would convict the appellant for
trafficking in the dangerous drugs as per the charge.
[46] It seems to us that the learned deputy public prosecutor is
imploring us to invoke and apply vigorously the proviso to section 60(1) of
the Courts of Judicature Act 1964 which enacts as follows:
“Provided that the Court of Appeal may, notwithstanding that it is of
opinion that the point raised in the appeal might be decided in favour
of the appellant, dismiss the appeal if it considers that no substantial
miscarriage of justice has occurred.”
[47] The full bench of the Federal Court in Tunde Apatira’s case
(supra), at page 266 had this to say:
“So it comes to this. As a general rule this court will, in the normal
course of events, quash a conviction where there has been a
misdirection. Exceptionally, a conviction will be upheld despite a
misdirection where this court is satisfied, that a reasonable tribunal
would have convicted the accused on the available evidence on a
proper direction. The decision of this court in Alcontara al/ Ambross
Anthony v PP [1996] 1 MLJ 209 exemplifies the general rule, while
that in Khoo Hi Chiang v PP [1994] 1 MLJ 265 illustrates the
exception.”
[48] The Federal Court in Tunde Apatira (supra) clearly said that the
proviso to section 60(1) of the Courts of Judicature Act 1964 is only
applicable to those cases which are to be considered “exceptional”. The

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burden is always on the prosecution to show that the evidence is
“overwhelming”. Here, the learned High Court Judge at the prima facie
stage was satisfied that the appellant was in possession of the cannabis
weighing 4,089 grammes. That, in our judgment, is indicative of the
overwhelming evidence adduced by the prosecution and it would trigger the
proviso in favour of the prosecution. Since there is no substantial
miscarriage of justice, the conviction stays and it is safe to convict the
appellant.
[49] In regard to grounds eight, nine, ten and eleven of the Petition of
Appeal that concerned the averments that the learned High Court Judge
failed to adequately consider the appellant’s defence, we have this to say.
A perusal of the written grounds of judgment of his Lordship showed that
the defence of the appellant was considered and analysed as seen at
pages 18 to 23 of the appeal record. Having considered the defence, his
Lordship was of the opinion that the defence raised by the appellant failed
to create a reasonable doubt in the prosecution’s case.
[50] It must be emphasised that the learned High Court Judge did not
invoke an adverse inference against the appellant for not calling his wife as
a witness. His Lordship merely stated that the appellant’s evidence was
weaker without the support of his wife’s testimony. And this was criticised
by learned defence counsel as a misdirection in law and that the appellant

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was prejudiced. Reliance was then placed on the case of Alcontara a/l
Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209, FC. But,
factually speaking Alcontara’s case are poles apart from the present
appeal. In Alcontara, the cautioned statement was made one day after his
arrest and in it he mentioned about Che Mat, and Che Mat’s telephone
number and place of abode. Here, in the present appeal, there was no
cautioned statement at all.
[51] Learned defence counsel argued that the defence put up by the
appellant was a reasonable defence. And that the appellant had explained
about the two raincoats. It was, according to learned defence counsel, a
case of mere possession. In regard to the two raincoats, we have this to
say. The search list marked as exhibit “P8” as found at page 154 of the
appeal record made no mention of any raincoat at all. The photographs at
pages 143 to 149 do not show the existence of the two raincoats as alleged
by the appellant.
[52] Finally, another point worth noting is this. SP4 lodged a police
report on 28.2.2001 – the very day when the offence was committed. And
that police report marked as exhibit “P10” was lodged at about 10.10 p.m.
It showed consistency and was not at variance with the evidence of SP4
during the trial. That police report (exhibit “P10”) was worded in this way
(see page 157 of the appeal record):

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“Bertindak atas maklumat dadah, pada 28/2/2001 jam lebih kurang
2040 hrs, saya mengetuai sepasukan Polis yang terdiri daripada
C/Insp Ragavan, Insp Ng Wei Boon dan anggota Jabatan Narkotik
IPK Perak serta anggota Bahagian Narkotik IPD Taiping telah
menahan sebuah Motosikal Jenis Modenas Kriss No Pendaftaran
AEB 2680 yang ditunggang oleh seorang (lelaki) di tepi jalan
Simpang Batu 2½ Simpang Taiping, Perak setelah perkenalkan diri
pegawai Polis. Saspek cuba melarikan diri tetapi berjaya ditangkap
setelah berlaku pergelutan. Selepas itu saya terus membuat
pemeriksaan ke atas badan saspek serta motosikal saspek. Dalam
pemeriksaan tersebut, saya telah menjumpai satu beg Plastik hitam
yang terletak di dalam bakul motosikal saspek. Saya buka beg
Plastik hitam tersebut dapati terdapat (4) ketulan mampat yang
dibalut dengan plastik lutsinar setiap ketulan disyaki dadah ganja.
Saya rampas barang kes dan memberitahu kesalahan kepada
tangkapan lalu dibawa ke balai untuk buat repot Polis.
Butir tangkapan seperti berikut:
Nama : MOHD KAMAL BIN OSMAN
KPT : 720512-08-6609 (A 2290687)
Alamat: No.30, Jalan Siakap Simpang Tiga, Kuala Kurau, Perak
Kerja : Nelayan
Sekian laporan saya.”
[53] It must be borne in mind that there was no cross-examination of
SP4 to show that SP4’s police report was made to put the appellant in
trouble.
[54] Since the learned High Court Judge indirectly relied on section
37(d) of the DDA, we found that the defence of the appellant had fallen far
short of rebutting the presumption of possession on the balance of
probabilities and as such, it had not raised a reasonable doubt as to the
appellant’s guilt which the prosecution had established beyond reasonable
doubt.

22
[55] For the aforesaid reasons, the appeal is without merit and it is
hereby dismissed. There are no appealable errors. It is safe to convict the
appellant. We affirmed the conviction and sentence imposed on the
appellant by the High Court.
26.6.2012 Dato’ Abdul Malik bin Ishak
Judge, Court of Appeal,
Malaysia
Counsel
(1) For the Appellant : Dato’ Naran Singh
Solicitor : Messrs Naran Singh & Co
Advocates & Solicitors
Perak
(2) For the Respondent
Prosecution : Madam Shoba Venu Gobal
Deputy Public Prosecutor
Attorney General’s Chambers
Putrajaya

Cases referred to in this judgment:
(1) Looi Kow Chai & Anor v PP [2003] 2 MLJ 65, [2003] 2 AMR 89.
23
(2) Balachandran v PP [2005] 1 CLJ 85.
(3) PP v Letchumanan Suppiah [2006] 1 CLJ 557.
(4) Seneviratne v R [1936] 3 All ER 36.
(5) Munusamy v PP [1987] 1 MLJ 492.
(6) PP v Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129, 144, FC.
(7) Public Prosecutor v Chan Ah Kow & Anor [1988] 2 CLJ (Rep) 186.
(8) Yap Ee Kong and Anor v PP [1981] 1 MLJ 144, 146, FC.
(9) Ong Ah Chuan v PP [1981] 1 MLJ 64.
(10) Mohd Farid bin Mohd Sukis & Anor [2002] 3 AMR 3457; [2002] 3
MLJ 401.
(11) PP v Reza Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13.
(12) PP v Abdul Rahman Akif [2007] 4 CLJ 337; [2007] 5 MLJ 1.
(13) Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237.
(14) Pendakwa Raya v Kang Ho Soh [1991] 3 CLJ 2913.
(15) Lim Beng Soon v Public Prosecutor [2000] 4 SLR 589.
(16) Ramis a/l Muniandy v PP [2001] 3 SLR 534.
(17) Tan Ah Tee & Anor v PP [1980] 1 MLJ 49, 52.
(18) Tunde Apatira & Ors v Public Prosecutor [2001] 1 MLJ 259, FC.
(19) Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ
209, FC.