IN THE COURT OF APPEAL AT PUTRAJAYA
CRIMINAL APPEAL NO P-05-67-03/2014
[In the matter of High Court of Malaya at Penang Criminal Trial no 45-18-05/2013 Between
Public Prosecutor And
AZIAH BINTI ALI, JCA MOHD. ZAWAWI BIN SALLEH, JCA ABANG ISKANDAR BIN ABANG HASHIM, JCA
 The Appellant was charged for trafficking in dangerous drugs. The charge was amended to read as follows:
“Bahawa kamu pada 15.8.2012 jam lebih kurang 5.40 petang di Ruang Ketibaan Lapangan Terbang Antarabangsa (LTAB) Bayan Lepas, di dalam daerah Barat Daya, di dalam Negeri Pulau Pinang, telah didapati mengedar dadah berbahaya iaitu Methamphetamine sejumlah 1875.7 gram dan dengan itu 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”.
FACTS OF THE CASE
 On 15 August 2012, D/ Lans Corporal Wan Azmi bin Wan Mat Isa, (SP5) was on surveillance duty at the Hall of Bayan Lepas, International Airport, Penang from 4.00 pm until 12 midnight. As part of his duty, he had screened bags of passengers who had arrived at KLIA from overseas. SP5 had noticed a suspicious image of greenish colour on the custom’s scanning machine’s monitor. When he approached the baggage at exit of the scanning machine, he saw a man, who was later identified as Adhy Tedjajady (“the Appellant”), had picked up the dark brown bag (‘the bag’). SP5 saw the Appellant placing it on the trolley.
 SP5 and another police officer named L/Kpl Low Guo Tzong approached the Appellant and introduced themselves as police officers. The Appellant initially refused to give to SP5 his passport after being asked several times and only did so after SP5 had raised his voice. At that time, SP5 noticed the Appellant’s hands were shivering and that he had looked scared.
 SP5 then led the Appellant to a nearby Custom’s examination table. There, the Appellant was instructed to empty the bag and to have
the bag re-scanned. The second scanning revealed a suspicious greenish image inside the bag. The Appellant then was directed to put back his clothes inside the bag. The Appellant was then taken to the Narcotics Office at the airport for further examination.
 Upon further examination, SP5 noticed that at the base inside the bag, there were signs of bulging and signs of it having been tampered with. SP5 then proceeded to open the base by using a screwdriver and found that the top layer was a cardboard and concealed underneath was a brown coloured plastic package. Inside the plastic package, SP5 found granular and crystal-like powder substances, suspected to be drugs. The Appellant was arrested and the items found were seized. SP5 also retrieved a flight boarding pass in the name of the Appellant from the Appellant. The baggage tag attached to the bag also had the Appellant’s name on it.
 The seized substance was sent to the government Chemist Department for analysis. Miss Norazida bt Daud, the Chemist (“SP4”), confirmed, after due analysis, that the granular and crystal-like powder substance contained 1875.7 grams of Methamphetamine.
 Premised on the above, the Appellant was then charged in the High Court for trafficking in the dangerous drugs, to wit, Methamphetamine.
 After a full trial, the learned High Court Judge had found the Appellant guilty of trafficking in the dangerous drugs and had sentenced him to death by hanging. Thus, this appeal by the Appellant.
 The appeal came before us on 2nd December 2014. After perusing the Records of Appeal and having considered the able submissions by both parties, we had unanimously dismissed the appeal. The conviction and sentence imposed by the learned High Court Judge were thereby affirmed. These are now our grounds for the decision.
 Though the Appellant had raised a number of grounds in the petition of appeal, before us his learned counsel had chosen to canvass two grounds in impugning the decision of the learned High Court Judge. His two complaints were: [a] that the learned trial Judge had failed to subject the prosecution evidence to a maximum evaluation and that he had failed to evaluate the defence, and [b] that the learned Judge did not
state clearly whether the evidence adduced had established trafficking in the drugs.
 At the outset, it should be noted that the submissions advanced by learned counsel for the Appellant were repetitions and in some instance an embellishment of the same submission raised before the High Court. The learned trial Judge had admirably dealt with all the points and rejected them. Of course the issue pertaining to trafficking only arose alter the Appellant was convicted by the learned trial Judge. That complaint could not have been ventilated before the learned trial Judge. We will deal with that issue separately in the course of this Judgement.
 The complaint would involve a re-evaluation of the whole evidence as adduced by both sides. The complaint by learned counsel on the maximum evaluation of the prosecution by the trial Judge was premised on the true intent of section 180 of the Criminal Procedure Code [‘the CPC’]. What has now become incumbent on all trial Judges in a criminal proceeding to determine at the end of the prosecution case is whether the prosecution evidence, as adduced before the court, has established a prima facie case against the accused person. What
exactly is meant by the phrase ‘prima facie’ case in the context of the CPC proceedings has been finally settled in the cases of Balachandaran v PP  1 CLJ 85, Looi Kow Chai & Anor v PP  1 CLJ 734.
 In gist, the prosecution must have adduced evidence to such a level that the trial court is satisfied that if it were to call for defence to be entered and if the accused person elects to remain silent, there is present before the court, sufficient evidence to convict the accused person on the preferred charge.
 The first part of complaint of the Appellant requires us to reevaluate the prosecution’s evidence in that context. In this regard, we must hasten to add that the learned trial Judge had directed his mind to the proper test to be applied to the prosecution evidence at the end of its case. We need only to refer to the grounds of Judgement of the learned trial Judge at page 22 therein under the sub-heading “ 8) Decision at the end of the close of the prosecution’s case”. At page 23 of his grounds of Judgement the learned trial Judge made this finding, and we quote:
“Applying the test of prima facie at the close of the prosecution case as enunciated in the Federal Court case of Balachandran v PP  2 MLJ 301, I have no hesitation to find the accused guilty, convict and sentence him according to law, if he elects to remain silent.”
 With respect, we saw no error in the manner in which the learned trial Judge had directed his mind on the requisite legal burden at the end of the prosecution’s case the way he did.
 The learned trial Judge had found that there was actual possession with mens rea and the element of trafficking having been borne out by the prosecution’s evidence. Those two elements are the essential ingredients that the prosecution would have to prove at the end of its case, before the Appellant can be called to enter his defence. Of course there may be other ancillary issues that may be raised by the Appellant in the course of challenging the evidence of the prosecution during the prosecution stage itself by way of cross-examination.
 In this case, we noted that the issue of the identity of the impugned drugs was raised before the learned trial Judge. From the grounds of Judgement the learned trial Judge, this issue was dealt with exhaustively
at pages 15-20 therein. In dealing with the issue of identity of the drugs, we noted that the Lordship had directed his mind to the cases of Zaifull bin Muhammad v PP & Anor  2 AMR 346 and Hasbala Mohd Sarong v PR  6 CLJ 965. Based on the factual matrix of the case, His Lordship concluded that there could not be any doubt as to the identity of the impugned drugs. His Lordship had considered the testimony of SP5, who was the arresting officer that had found and seized the drugs from inside the bag which had the name tag attached to it in the name of the Appellant on it. SP5 had testified to the effect that he had found the plastic package [P19] that was concealed in the said bag, which on further examination, was found to have contained the suspected impugned drugs. He had also identified the exhibits that he had seized as being shown in the relevant photographs [P45-48] that were shown to him in court. Then he had considered the evidence emanating from SP7 who was the Investigating Officer in this case. On receiving the exhibits from SP5, he had marked the same with the marking “S1” on P19 which had contained the suspected drugs [P20A]. The exhibits were then sent to the government chemist for analysis of the P20A. SP3, the said government chemist confirmed that she had received the exhibit marked “S1” from SP7. After due analysis, SP3 testified that the P20A was found and confirmed as Methamphetamine. Based on the handling of the exhibits during investigations, there was no
break in the chain of same and had entertained no doubt as the identity of the drugs. He was satisfied that the drugs that were seized by SP5 from inside the bag belonging to the Appellant were the same drugs that were sought to be produced and tendered in his court by the prosecution.
 Having said that, it must be stated here also that the Appellant had complained about the discrepancies in the weight of the impugned drugs as described by the various prosecution witnesses in the course of them testifying in court. The learned trial Judge dealt with the complaint at page 20 of his Grounds of Judgment as follows:
“In the instant case, the investigating officer, SP7 had weighed the drugs exhibits using the weighing scale supplied by the PDRM and obtained an estimate weight of the suspected ‘syabu’ to be 3.6 kg. SP7 weighed the suspected drugs together with the plastic package, P19. In his police report, P41 stated that the gross weight of the drugs was 4kg. The chemist, SP3 confirmed that the net weight of the crystal-like substance was 3259.5 grammes. Having conducted the analysis, the actual weight of the methamphetamine was 1875.7 grammes.
The difference in the gross weight of the drugs given by SP3, SP7 and SP5 are dependent on the manner it was weighed. SP5 and SP7 had obtained the gross weight of the same drugs exhibit. The difference in the gross weight is not material. What is material and conclusive is the weight given by the chemist, that is the weight of the methamphetamine, a dangerous drug as listed in the First Schedule of the Dangerous Drugs Act 1952. And the drug exhibit which formed the subject matter of the charge that was seized from the accused. The evidence of SP3, SP5 and SP7 were pertaining to the same drugs and at no time the chain of evidence relating to its identity was broken.”
 We were of the considered opinion that there was nothing in the Judgement would, require any appellate intervention by us. Suffice to say that the law on break in the chain of exhibits is settled and its encapsulation can indeed be seen in the Federal Court Court decision in Su Ah Ping v PP  1 MLJ 75 which has found further refinement in the cases such as Zaifull [supra] and Hasbala [supra]. As long as the handlers of the exhibits have confirmed affirmatively that the exhibits are the same as the ones that they had handled, that would be sufficient
basis to conclude on the identity of the exhibits in favour of the prosecution’s assertion.
 In this case, the P19 that contained P20A was intact when the chemist [SP3] had received it from the Investigating Officer [SP7]. There was no suggestion by the Appellant that P19 was tampered with. As such, there was nothing to suspect that something was amiss regarding the exhibits at material time. The essence of the matter being that all the relevant witnesses had positively identified the critical exhibits as the ones which they had handled in the course of the investigation into this case.
 The issue of the different readings from the use of the weighing scales provided by the police stations had been adverted to and ruled upon by the apex Court in the Hasbala’s case [supra] and it does not need any repetition by us here. That being the case, it would need a lot to dislodge the affirmative and positive oral evidence of the relevant prosecution witnesses who had handled the exhibits. Short of they being impugned and in the absence of credible evidence coming in from the opposite direction, due credence and acceptance must be accorded to those oral evidence of the relevant prosecution witnesses. At the end of the day, what must be key was that the impugned drugs had been
weighed by the chemist to be 1875.7 grammes, as stated in the charge that was preferred against the Appellant. As such, the learned trial Judge was correct in concluding that there was no reasonable doubt pertaining to the identity of the impugned drugs.
 We will now turn to the issue of whether there was possession, on the part of the Appellant with regard to the impugned drugs. Like all possessions of things that have been criminalized by law, there must always be possession with the necessary mens rea, with the exceptions of those instances where mere possession has been as criminal in strict liability offences. Intrinsic in that definition must necessarily be the presence of the elements of custody or control over the thing and coupled with the element of guilty knowledge that the person has regarding the said thing. As such, mere knowledge without more is not enough to attach criminal liability on a person so situated. Thomson J stated the principle clearly in the case of Chan Pean Leon v PP  1 LNS 17 when he emphasized on the need to show the element of knowledge of the nature of the thing possessed. And add to that the element of power to deal with the thing as owner to the exclusion of all others, possession with mens rea is established. Was there guilty knowledge of the impugned drugs on the part of the Appellant in this case? Direct proof of knowledge in a criminal trial is often difficult to lead
in evidence, unless there is an admission or confession on the part of the accused person. So, normally knowledge can only be inferred from the circumstances surrounding the case.
 In this case, the learned trial Judge had found that there was knowledge on the part of the Appellant about the impugned drugs which were found concealed, as they were, at the false bottom of the bag P44. He had cited the case of Teh Hock Leng v PP  4 CLJ 764 to support the basis for him so finding knowledge on the part of the Appellant of the existence of the impugned drugs in the bag P44. The case of Teh Hock Leng [supra] is relevant for the legal point that an inference may be legitimately arrived at by looking at the method that was employed to convey or transport the drugs. Learned Justice Gopal Sri Ram JCA [as he then was] has this to say in that case:
“The method employed to convey or transport 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.”
 We find no reason to express any opinion that is contrary to the one enunciated by this Court in the Teh Hock Leng [supra]. Looking at the Grounds of Judgment of the learned trial Judge in this
case that pertained to his appreciation of the evidence before him in concluding that the Appellant had the required mens rea in possessing the impugned drugs, we had no reason fault him in any manner. Indeed, His Lordship had sifted through the evidence and he had identified seven circumstances, which he had described as ‘conducts’, from which he had concluded that the prosecution had succeeded in proving that the Appellant had the necessary mens rea over the impugned drugs. We found those findings at pages 8-9 of his grounds of Judgement. Applying the relevant principle as alluded to by us above, we were of the view that His Lordship did not err in any way, so as to invite us to interfere with his findings. They were supported by evidence and were reasonable in the circumstances. The Appellant had failed to explain away his various conducts, which were identified by the learned trial Judge, as required under section 9 of the Evidence Act 1950, as explained by the apex Court in the case of Parian bin Dadeh v PP  MLJ 19. In this case, the drugs were found in the bag P44, which had a name tag attached to it bearing the name of the Appellant. This evidence was not disputed. The drugs were found under a false bottom inside the said bag. Again this was not disputed. The drugs were only discovered when a suspicious image was seen on the monitor as the bag P44 was being scanned by SP5 at the Customs
examination check point at the Penang International Airport, on the material day as stated in the charge. Further examination of the bag and the object that had caused the suspicious image, and the subsequent analysis of the same had revealed the true nature of the said object that was so concealed in the bag P44.
 There was, among the various conducts attributable to the Appellant as identified by the learned trial Judge, had been that SP5 observed that the Appellant’s hands were trembling when the bag was examined by SP5 at the KLIA customs checking area on the day in question. Learned counsel for the Appellant had submitted before us that such observation was not reflected in the police report lodged by the SP5 pertaining to this case. Learned Deputy had countered by saying that a police report was never meant as an encyclopaedia wherein which all things must be included. A police report is a document that will initiate a police investigation into a complaint that an offence may have been committed. It is never meant to be an exhaustive document containing every bit of information from the complainant. With respect, we would agree with learned Deputy. [See, Herchun Singh & Ors v PP  2 MLJ 209. In any event, the evidence of SP5 in this factual circumstance was supported and corroborated by the evidence of SP6, though in law, there is no need for SP5’s evidence to be corroborated. The learned trial
Judge had believed SP5 as a witness of truth and had found no reason to doubt his evidence on this issue. Bearing in mind that he had the distinct advantage of having heard and observed the demeanour of SP5 before him, we had to defer to his finding. There existed no cogent reason as to why his finding ought to be disturbed by us. In view of the above, we found that the learned trial Judge’s conclusion that there was established the element of possession on the part of the Appellant regarding the impugned drugs at the end of the prosecution’s case at a prima facie level, was with respect, justified. We were also in agreement with learned Deputy that there was actual possession, as opposed to presumed possession as envisaged under section 37(d) of the DDA 1952. In a situation like the one obtaining in this case, it would not be remiss on our part to state that the observation by Lord Wilberforce in the case of Warner v Metropolitan Police Commissioner  2 AC 265 ought to be readily applicable. This is what the learned Law Lord had said:
“In all such cases, the starting point will be that the accused had physical control of something – a package, a bottle, a container – found to contain the substance. This is evidence -generally strong evidence – of possession. It calls for an explanation: the explanation will be heard and the jury must decide whether there is genuine ignorance of the presence of
the substance, or such an acceptance of the package with all that it might contain, or with such opportunity to ascertain what it did contain or such guilty knowledge with regard to it as to make up the statutory possession.”
 As regards the issue of trafficking in the impugned drugs, having perused the evidence as led by the prosecution. We were of the view that, the learned Judge was justified in finding that element of trafficking in the impugned drugs on the part of the Appellant at a prima facie level. We agreed with the learned Deputy that the Appellant was doing acts that could fall inside the wide ambit of the definition of trafficking under section 2 of the DDA 1952. To recap, the drugs were found in the bag belonging to the Appellant. He was arriving from Mali in Africa when he was nabbed at the Penang International Airport on arrival after a scan of the said bag P44 revealed something suspicious inside the P44. He was seen by the SP5 and SP6 to be shivering when the bag was being examined. His conduct prior to the examination of the said bag was such that it was not consistent with one who was innocent. He was far from being cooperative when requested by SP5 to show the latter his passport. We were satisfied that there were overt acts as alluded to by Lord Diplock in the Privy Council case of Ong Ah Chuan v PP  1 LNS 181. We were also in agreement with the learned trial Judge that
the undisputed fact that weight of the Methamphetamine as determined by the SP3, the chemist was 1875.7 grammes, which was well beyond the statutory threshold amount required to trigger the presumption of trafficking under section 39(da) of the DDA 1952, having been established by the prosecution, the presumption of trafficking to be invoked, was therefore satisfied. On that score, the learned trial Judge was correct to call for the Appellant to enter on his defence to the charge that was proffered against him.
 We noted too that the Appellant had also complained about the alleged fact that there had been no proper investigations by Investigating Officer pertaining to the character called “Cruspina”. It was also complained to the trial Judge that the failure on the part of the Investigating Officer [SP7] to take nail clippings of the Appellant ought to be viewed as something that had fatally flawed the entire investigations into this case. We had considered the manner in which the learned trial Judge had dealt with the issue of alleged failure to investigate “Cruspina” by SP7. It was his view that there was hardly any evidence given by the Appellant on this character called Cruspina. At page 21 of his grounds of Judgement, the learned trial Judge had stated: “Cruspina was mentioned without any detail information about her identity.” That was a finding of fact by the trial court. His Lordship then opined, based on the
case of PP v Dato Seri Anwar Ibrahim [No.3]  2 MLJ 1, that a mere suggestion by the learned counsel on behalf of the Appellant did not amount to evidence of the fact suggested, unless they are partly or wholly accepted by the witness to whom such suggestion was made in court. In this case, the SP7 had repudiated the suggestion made to him by learned counsel during cross-examination. As such, in no way had the suggestion ‘morphed’, to use the word employed by the learned trial Judge, into evidence which must be acted upon by the court. That legal position was already stated as such way back in 1932 in the case of Emperor v Karimuddi Sheikh 1932 AIR Cal 375. Quite apart from that, suffice for us to say that the investigation may only be faulted for noninvestigation, if having been furnished with sufficient information regarding a crucial character by the suspect, and yet no investigation was pursued to verify the facts that were alleged pertaining to the role[s] played by that person, then, and only then could it be said that there was a failure of investigations, which may taint the whole investigation, rendering it as being an unfair investigation that had caused grave prejudice to the accused person. The case of Alcontara a/l Anthony v PP  3 MLJ 568 was one such case where, on account of the failure on the part of the investigating officer to investigate ‘Mat’ whom Alcontara had alleged was the owner of the keropok that was found in the boot of his car when he was detained by the police although
Alcontara had furnished the police with ‘Mat’’s telephone number, the apex Court had acquitted Alcontara from the charge of drug trafficking because there had been an unfair investigation occasioned by such failure. An injustice had been occasioned to Alcontara. But no such grave failure can be assigned to the investigation into the Appellant’s case pertaining to Cruspina. There was no evidence that the ‘Alcontara notice’ had been furnished by the Appellant to the arresting party. In must be borne in mind that the information must be given to the arresting officer at the time of arrest or nearest to it, in point of time. This is to avoid such furnishing of information being treated as an afterthought or an embellishment. The information so given must be sufficient to enable the police or the relevant authorities to verify the veracity of the said information. As to what is sufficient, must of necessity be dependent on the peculiar facts and circumstances of each particular case. Again, we would stress the Alcontara case [supra] as instructive in that regard.
 Pertaining to the failure to get the finger nail clippings from the Appellant, we would allude to the apex Court’s decision in the case of PP v Mansor bin Rashid  1 CLJ 233 where it was held that whether the lifting of finger-prints from the suspect was necessary would depend on the facts obtaining before the trial court. Like-wise, with the need to get nail clippings. In the case involving the Appellant, from its
surrounding circumstances, it would not be of much utility for any nail clippings to be obtained from the Appellant. There was other evidence that the prosecution could garner to prove its case against the Appellant as could be seen from a perusal of the notes of evidence in the record of appeal before us. Incriminating evidence need not be direct, as reasonable inferences may be arrived at from strong circumstantial evidence that could equally be used as a basis to make findings against an accused person. Doing an investigation is a process that involves considerable Judgement calls to be made by the investigator. It is dictated by the appreciation of whether enough evidence has been obtained to legally constitute the offence that was being investigated into.
 In the circumstances, we were of the view that the learned trial Judge was amply justified in law, in ordering the Appellant to enter his defence to answer to the charge on drug trafficking. We were satisfied that there was a prima facie case as envisaged under section 180 of the Criminal Procedure Code, of drug trafficking established against the Appellant. He had correctly applied the principle in Balachandran v PP  2 MLJ 301 to the evidence as led before him.
 From the records of appeal, the Appellant had elected to give sworn testimony from the witness stand. He had presented his defence under oath for which he was duly cross-examined by the learned Deputy. It was the complaint of the Appellant that the learned trial Judge had failed to appreciate the defence of the Appellant before coming to his decision. We had occasion to look at the grounds of decision of the learned trial Judge in the appeal records. We noted that he had devoted a considerable space and thought in appreciating the defence of the Appellant.
 The defence of the Appellant had been based on the premise that he had no knowledge as to the drugs that were found concealed in the manner they were inside the bag P44, when they were found by SP5 after suspicious image was revealed on the monitor of the scanning machine, during a scanning exercise at the Customs examination table at the Penang International Airport on the day in question.
 The version of the Appellant as to what had transpired at the Penang International Airport on his arrival from Mali did not differ very much except as regards the very important aspect of the conduct of the Appellant before and during the examination of the bag P44 by SP5. Of course, there were minor differences and one such difference was
regarding the fact that the Appellant was allegedly arrested by one Chinese police officer, apparently identified as Lance Corporal Low Guo Tzong. He was offered to the defence at the end of the prosecution case but the Appellant had turned down that offer. On the other hand, it was the prosecution case that the Appellant was arrested by SP5 himself. After considering the evidence, the learned trial Judge had preferred the prosecution evidence on who had made the arrest. We found his reasoning that SP5, a police corporal, being of a higher rank that L/Corporal Low would assume a more active role in such circumstance as a reasonable basis to make such a finding of fact.
 But a more significant difference between the accounts as led by both sides has been the matter pertaining to the conduct of the Appellant as was observed by both SP5 and SP6 at the airport. As can be recalled, the learned trial Judge had identified that there were seven conducts on the part of the Appellant that were distilled from the evidence of both SP5 and SP6. We do not propose to repeat them all here, but suffice for us to state they the net observation by SP5 and SP6 on the Appellant had been that the latter was not co-operative and was seen nervous when encountered by SP5 near the Customs check point at the airport. The Appellant had completely denied this to be the case. The learned trial Judge had considered this part of the defence story and
he had preferred the corroborated version of what had transpired as per the evidence of SP5 who was corroborated by SP6. The evidence of the Appellant was a mere denial, without more. Having preferred the evidence of SP5 over that of the Appellant pertaining to the Appellant’s conduct, the learned trial Judge stated that the Appellant’s knowledge of the drugs in P44 was to be inferred from his conduct which was admissible under section 8 of the Evidence Act 1950. He had rightly referred to the case of Parian bin Dadeh v PP  MLJ 19 where the apex Court held that once the evidence of conduct under section 8 of the Evidence Act was held to be admissible, it became incumbent on the accused person to offer an explanation himself, for his conduct as required under section 9 of the Evidence Act.
 We noted that the learned trial Judge had embarked on an analysis of whether the Appellant had succeeded in explaining away his reaction as observed by SP5 before and during the search and examination of the bag P44 at the Customs check point at the Penang International Airport. We would allude to the part of the learned trial Judge’s conclusion, having so analysed the defence of the Appellant and this can be seen at pages 36-37 of his grounds of Judgment, as follows:
“With profound respect, I do not agree with learned counsel that the accused denied each and every assertions by SP5 regarding his incriminating conduct. The accused never rebutted or explained that L/Kpl Low or SP5 had to raise his voice before he handed over his passport to L/Kpl Low or SP5.
At that time, the accused too looked scared. The accused incriminating conduct was not one but seven altogether. They were multiple. (See pp 8 and 9 of this Judgment). These are clear evidence that the accused’s incriminating conduct has a direct bearing on the fact in issue as the drugs was found concealed in the bag, P44 carried by the accused. There are no other contraband or illegal articles in P44 that can be said to trigger the accused’s incriminating conduct. In other words, there is no other evidence for this court to make an inference other than the inference that the accused was aware of the drugs in P44 and had knowledge of the same.”
 That conclusion was derived at after an appreciation of the evidence of both parties by the learned trial Judge. Those were strong findings of facts made by the learned trial Judge. At page 37 of his grounds of Judgement, the learned trial Judge had remarked as follows:
“There is no valid and cogent reason for me to reject the evidence of SP5 on the incriminating conduct of the accused on the ground that it is not logical, as for example, “I saw a cow jumping over the moon” or “I saw a flying saucer landed at the Dataran Merdeka”. Furthermore, there is no animosity between SP5 and the accused and the former was merely carrying out his duties as a law enforcement officer. Specifically SP5 was on surveillance duty – his observation on the accused and his conduct must be sharp and focus. Therefore I am not prepared to jettison the evidence of SP5 in this respect although the incriminating conduct of the accused was not mentioned in the police report, LTAB Report No. 737/12, P41.”
 Clearly, the Appellant had not explained away the impugned conduct as required of him under section 9 of the Evidence Act 1950. With respect, we could find no reason to disturb such finding by the learned trial Judge on the matter of the Appellant’s conduct and the learned Judge’s concluded inference therefrom.
 Turning to the heart of the Appellant’s defence, we noted that it had centred on what had happened in the Appellant’s room at Timbuktu Hotel, in Mali. The central character around which the Appellant’s
defence had been built was a woman by the name of Cruspina, otherwise known to her friends as ‘Cuping’.
 We thought the learned trial Judge had fairly described that incident in his grounds of Judgement at page 29-30 therein, when he analysed the defence version of events leading to the arrest of the Appellant, in particular, to the role allegedly played by Cuping. We now reproduce that part of his Judgement:
“On 12.8.2012, the accused was preparing to return to Penang by an Air France flight. The departure was scheduled at about 9.30 pm. He did the packing at the hotel at about 6.00 pm. About 30 minutes later, Cuping knocked the door of his room and she brought in 5 packages of the Muslim ladies’ clothings.
As Cuping noticed that the accused’s luggage bag was full with his clothings, she went out of the accused’s room and returned with a luggage bag which was larger then the accused’s bag. It was a dark brown bag, P44. Cuping opened the bag, P44. It was empty and nothing suspicious, according to the accused. Cuping had transferred the accused clothings from his original red bag into P44, a dark brown bag. The transfer of the clothings took about 5 to 10 minutes. Having done that, Cuping placed the 5 plastic packages of the Muslim ladies clothings on
top of the accused clothings. Cuping then closed the bag, P44. Earlier the taxi was called to go to the airport, believed to be Bamako Airport. When the taxi arrived, the accused carried all his bags into the taxi. The accused’s bags were consisting of the dark brown bag, P44, a sling bag and a laptop bag. Cuping did not return together with the accused to Penang as she had other matters to attend to. According to the accused, his original red bag would be brought to him later by Cuping. The accused also said Cuping intended to give the 5 packages of the Muslim ladies clothings to her friend in Penang. Cuping would contact her friend to collect the same from the accused.”
 Faced with this evidence as led by the Appellant, the learned trial Judge had concluded that the gist of the defence case had been the real culprit who had concealed the drugs in the bag P44 had been Cuping, whom the Appellant himself had described as a good friend of his. With respect, we were in agreement that he had properly directed himself on the premise and angle of the Appellant’s defence.
 It was the complaint of the learned counsel on behalf of the Appellant that the learned trial Judge had failed to consider the defence
as advanced by the Appellant and his witnesses. We had looked at the notes of proceedings and in particular the grounds of appeal in deciding whether such complaint was justified.
 From a perusal of the grounds of Judgement of the learned trial Judge, we noted that he had considered the defence and after weighing such evidence in the light of the prima facie case that had been established by the prosecution, the learned trial Judge had opined as follows:
“Now the question is: was Cuping really responsible for
concealing the drugs in P44? Firstly… .defence case.” [Pages
 It was also the finding of the learned trial Judge that the evidence of SD2, the wife of the Appellant as incapable of usefully assisting the defence case, because she had only dealt with the red bag that she helped packed when the Appellant was still in Indonesia. It must be recalled that the brown bag P44 was packed, allegedly by Cuping, in Mali, way in Africa. Surely, the learned trial Judge cannot be faulted in arriving at his conclusion pertaining to the value and weight that he had attached to SD2’s evidence. We had no reason to differ from such a finding by the learned trial Judge.
 So it was obvious to us that the learned trial Judge had sufficiently considered the defence offered by the Appellant and upon reflection, in the context of the entire evidence of the case, he had found such a defence to be one that was incapable of belief. He had given the defence version of events that had purportedly taken place in Mali in the hotel room of the Appellant, its due consideration. He had evaluated the inherent probability of the Appellant’s version. At the end of such exercise, it was the conclusion of the learned trial Judge that such defence as encapsulated and advanced by the Appellant was incapable of raising a reasonable doubt on the prosecution case.
 This then must bring us to the issue of the manner in which the learned trial Judge had dealt with the matter pertaining to trafficking in the drugs. It was submitted by Mr. Hisyam Teh Poh Teik, learned counsel for the Appellant, that although the learned trial Judge had found that the evidence led by the prosecution at the end of the prosecution had established a prima facie case of trafficking in the impugned drugs by the Appellant as per the charge, the learned trial Judge had nevertheless failed to state whether the presumption of trafficking was invoked against the Appellant. The learned trial Judge was clear in his ruling at that stage of the proceedings at the end of the
prosecution case that the evidence of the prosecution had established the factum of actual possession with mens rea as opposed to one of presumed possession with the aid of section 37(d) of the DDA 1952. Perhaps, it would be opportune for us to reproduce that part of the learned trial Judge’s finding as such, and for that purpose we would allude to pages 22-23 of his grounds of Judgement.
“ Decision at the end of the close of the prosecution’s case. Having subjected the prosecution evidence to a close scrutiny and maximum evaluation as expounded in the Court of Appeal case of Looi Kow Chai & Anor v PP  1 CLJ 734 and the Federal Court case of PP v Mohd Radzi bin Abu Bakar  1 CLJ 457, I am satisfied that the accused has actual possession or mens rea possession of the methamphetamine, the subject matter of the charge within the meaning of Toh Ah Loh & Mak Thim v Rex  1 LNS 72 and Saad Ibrahim v PP  1 LNS 154. I am also satisfied that the prosecution has succeeded in establishing a prima facie case of actual drugs trafficking under s 2 of the Act.
Further or in the alternative, the prosecution has also succeeded in establishing a prima facie case of presumed
trafficking under s 37 (da) of the Act, having regard to the weight of the methamphetamine- 1875.7 grammes- in excess of the statutory amount.”
 It was submitted before us that such a finding by the learned trial Judge had led to an ambivalence or confusion of sort, to the defence case. It had thus prejudiced the defence, such was submitted before us.
 With respect, we were not able to agree with the submission by learned counsel. It may appear persuasive at first blush. Indeed it was capable of evoking a degree of sympathy towards the Appellant. However, our view, after anxious consideration, is that simply put, the learned trial Judge’s ruling had meant that the evidence of the prosecution was such that the element of trafficking in the drugs had been factually established by evidence either in respect actual trafficking [by way of his conduct] or presumed trafficking [by way the weight of the drugs having exceeded the stated statutory threshold amount]. Either way, the Appellant was required to explain the circumstances pertaining to the established nexus between him and the drugs that were found in his bag P44 as shown by the prosecution’s evidence. That finding by the learned trial Judge was correct and it was made possible because of the overwhelming nature of the prosecution’s evidence. In the
circumstances, we were of the view that there was no confusion caused to the Appellant before us, in that regard.
 We were further fortified in our view because, at the end of the whole case, the learned trial Judge did consider the evidence of the defence properly by subjecting the defence evidence to the requisite burden pertaining to the issue of trafficking. To him, the Appellant had failed to rebut the prosecution’s case pertaining the presumed trafficking on the balance of probabilities. We noted that the defence did not lead any evidence to show that the drugs found concealed in his bag P44 was less than the threshold amount and his challenge on the identity of the impugned drugs was not successful. As such, that the presumption of trafficking was rightly invoked, as there was the finding by the learned trial Judge, and rightly so, that there was actual possession of the drugs on the part of the Appellant. The embargo on double presumption as was enunciated by the decision of the apex court in the Muhammad Hassan v PP  2 MLJ 273 was therefore not breached.
 We noted that the learned trial Judge had directed his mind properly when he considered the defence evidence. As the presumption of trafficking was in play against the Appellant, the attendant burden on the Appellant was to rebut that burden on the balance of probabilities.
On his appreciation of the defence evidence in the light of the entire overall evidence before him, he had concluded that the Appellant had failed to do that. Having perused through the records of appeal, we agreed with him. We found that his findings of facts had been reasonably arrived at based on the evidence before him. The fact of the matter had been that the Appellant had failed to reasonably explain the presence of the impugned drugs that was found, concealed as they were, in a false bottom in his bag, P44. His version that the impugned drugs could have been put there by Cuping was found to be too farfetched to be believed by the trial court Judge. On both presumed and actual trafficking, the Appellant had failed to discharge the attendant burden that obtained or operated against him. We found the learned trial Judge’s findings to be correct, in the circumstances, on account of the reasons advanced by the learned trial Judge, as evidenced in the portion of his grounds of Judgement, which we had reproduced in this Judgement of ours. On top of that, the learned trial Judge had also found that the Appellant had failed to raise a reasonable doubt on the prosecution’s case as to his guilt. Based on his findings he had then proceeded to convict and sentence the Appellant on the charge the way he did. [See pages 39-40 of his grounds of Judgement] We found that the learned trial Judge had not misdirected himself on the proper burden that ought to be discharged by both parties.
 Premised on the above, therefore we had been satisfied that there were no merits in the submissions of the learned counsel for the Appellant that were advanced before us for our consideration. We were of the considered view that there was overwhelming evidence led by the prosecution and that its case had been proven beyond reasonable doubt. The Appellant had failed to raise a reasonable doubt as to his guilt on the preferred charge. We found no appealable error committed by the learned trial Judge. We found that it was safe to affirm the conviction that was entered by the trial Judge against the Appellant as the prosecution had proven its case against the Appellant. We also had upheld the sentence that was imposed on the Appellant, being the only sentence that was provided by law for this type of offence as per the charge. We had therefore with respect, dismissed the Appellant’s appeal.
 Order accordingly.
Dated: 9 October 2015
ABANG ISKANDAR BIN ABANG HASHIM,
Court of Appeal Putrajaya
For the Appellant: Mr. Hisyam Teh Poh Teik; Mr. Teh Poh Teik & Co. For the Respondent: Tn. Mohd Mukhzany Fariz B. Mohd Mokhtar
(Deputy Public Prosecutor)
Cases referred to:
1. Alcontara a/l Anthony v PP  3 MLJ 568
2. Balachandaran v PP  1 CLJ 85
3. Balachandran v PP  2 MLJ 301
4. Chan Pean Leon v PP  1 LNS 17
5. Emperor v Karimuddi Sheikh 1932 AIR Cal 375
6. Hasbala Mohd Sarong v PR  6 CLJ 965
7. Herchun Singh & Ors v PP  2 MLJ 209
8. Looi Kow Chai & Anor v PP  1 CLJ 734
9. Muhammad Hassan v PP  2 MLJ 273
10. Ong Ah Chuan v PP  1 LNS 181
11. Parlan bin Dadeh v PP  MLJ 19
12. PP v Dato Seri Anwar Ibrahim [No.3]  2 MLJ 1
13. PP v Mansor bin Rashid  1 CLJ 233
14. Su Ah Ping v PP  1 MLJ 75
15. Teh Hock Leng v PP  4 CLJ 764
16. Warner v Metropolitan Police Commissioner  2 AC 265
17. Zaifull bin Muhammad v PP & Anor  2 AMR 346