IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: P-05-60-03/2012
MUHAMAD NASIR BIN HUSSAIN … APPELANT
PUBLIC PROSECUTOR … RESPONDENT
HEARD TOGETHER WITH CRIMINAL APPEAL NO: P-05-61-03/2012
MURTHI A/L RAMAN
PUBLIC PROSECUTOR … RESPONDENT
(In the Matter of High Court of Malaya at Pulau Pinang Criminal Trial No: 45-7-2008
Public Prosecutor And
1. Muhamad Nasir bin Hussain 2. Murthi a/l Raman)
MAH WENG KWAI, JCA TENGKU MAIMUN TUAN MAT, JCA HAMID SULTAN ABU BACKER, JCA
JUDGMENT OF THE COURT
 These two appeals were heard together as they arose out of one judgment of the High Court. The appellant in appeal No. 05-60-03/2013 and the appellant in appeal No. 05-61-03/2013 were the first accused and the second accused respectively in the High Court. In this judgment, they will be referred to as the first appellant and the second appellant respectively.
 The first and the second appellants were charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) read together with section 34 of the Penal Code. They were found guilty by the High Court for trafficking in 20,698.4 grammes of Cannabis and were convicted and sentenced to death.
THE PROSECUTION’S CASE
 In a nutshell, the prosecution’s case rests on the evidence of D/Kpl Govindasamy (SP5) and D/L/Kpl G. Jeganathan (SP7) who had acted as agents provocateurs. The evidence revealed that SP5 had communicated with Kana (the second appellant) over the handphone on 3 occasions. The first occasion was on 12.3.2007 when SP5,
disguising as a buyer named Ramu contacted the second appellant to buy Cannabis. The second appellant told SP5 that the drugs were not available. SP5 contacted the second appellant again on 15.3.2007 to enquire whether the drugs were available. SP5 was informed that the drugs were still not available and that the second appellant would notify SP5 once he has the supply.
 On 19.3.2007 the second appellant called SP5’s handphone informing him that the drugs were available and enquired from SP5 as to when SP5 intended to collect them. On this third occasion the second appellant has agreed to sell 15 kilos of Cannabis. The price, after much haggling, was fixed at RM1800.00 per kilo. SP5 and SP7 then met the second appellant at Restoran Muhamaad Nasi Kandar, Nibong Tebal. From the restaurant, the second appellant brought SP5 and SP7 to a car, Proton Wira Aeroback bearing registration number PFU 6022 where the first appellant was at the driver’s seat. The following were recovered from the said car which was rented by the first appellant from SP4:-
(i) in the rear seat, a box with the words “PM-571” written on it containing 5 compressed slabs of dried leaves;
(ii) in the boot, an “Uptown” bag containing a black plastic. Inside the black plastic, there was a gunny sack written with Thai characters. Inside the gunny sack there were 15 plastic packages of compressed slabs each wrapped in aluminium foil;
(iii) in the dashboard, 2 transparent plastic packages containing compressed slabs of dried leaves; and
(iv) under the driver’s seat, 1 transparent plastic package containing compressed slabs of dried leaves.
 Upon analysis by the chemist (SP3) the compressed slabs were confirmed to be Cannabis weighing 20,698.4 grammes.
 During the trial, the box written with “PM-571”; the black plastic; the “Uptown” bag and the gunny sack with the Thai characters were not produced. The items were lost. A police report was lodged by SP10 on the lost exhibits (exhibit P44).
FINDINGS OF THE HIGH COURT
 Having accepted the evidence of the agents provocateurs SP5 and SP7 as credible and reliable and having found that there was negotiation between SP5 and the second appellant relating to the supply and purchase of Cannabis and that at the appointed date, the first and the second appellants came to meet SP5 and SP7 in the said car, the learned trial judge found that the transaction fell within the meaning of “selling” and “transporting” in the definition of “trafficking” in section 2 of the Act.
 In the alternative, the learned trial judge found that the first and the second appellants were in actual possession or mens rea possession of Cannabis in the amount of 20,698.4 grammes. Given that the amount of Cannabis was in excess of the minimum weight
stipulated under the Act, the learned trial judge invoked the presumption of trafficking under section 37(da) of the Act.
 Although the negotiation relating to the purchase of Cannabis was not conducted by the first appellant, the learned trial judge found that the presence of both the appellants in the car were pursuant to the arrangement made over the phone between the second appellant and SP5. The facts and circumstances, according to the learned trial judge, showed that there was a nexus between the first appellant and the second appellant pertaining to the sale and purchase of the drugs from which common intention could properly be inferred against both the appellants for trafficking in 20,698.4 grammes of Cannabis.
 The learned trial judge therefore found that the prosecution has made out a prima facie case against the appellants. The appellants were called upon to enter on their defence.
 Both the appellants gave an unsworn statement from the dock. For ease of reference the statement of the first appellant is reproduced below (the statements for both the appellants are essentially the same):-
“Pada 20/3/2007, jam lebih kurang 4 petang saya dan kawan saya Murthi a/l Raman telah pergi ke Nibong Tebal untuk urusan kerja, Ketika itu kami menaiki sebuah kenderaan Proton Wira Aeroback nombor pendaftaran PFU 6022. Setelah kami sampai di Jalan Besar Nibong Tebal menghala ke Sungai Bakap saya yang memandu kereta PFU 6022 telah memberhentikan kereta PFU 6022 dan telah turun dari kereta untuk menghisap rokok. Murthi a/l Raman juga telah turun dari kereta PFU 6022 untuk menghisap rokok. Selepas kami turun dari kereta dan sebelum kami
sempat menghisap rokok tiba-tiba kami diserbu oleh sekumpulan lelaki yang berpakaian biasa yang kami tidak kenali. Lelaki-lelaki ini telah menangkap dan memukul kami dengan teruk. Kami terkejut dan menjadi kelam kabut. Selepas kami digari dan dibawa ke Balai Polis kami diberitahu pula bahawa ada ganja ditemui dalam boot kereta dan dalam dash board kereta PFU 6022, yang telah dibawa ke Balai Polis oleh anggota-anggota Polis sendiri selepas kami ditangkap.
Yang Arif semua keterangan yang diberikan saksi-saksi Polis dalam kes ini adalah tidak benar terutamanya 2 saksi Polis India yang mendakwa bahawa kami telah berbincang dan membuat urusan menjual beli ganja. Yang Arif kami tidak pernah berjumpa ataupun bercakap dengan mereka pada bila-bila masa dan kami juga tidak tahu bagaimana boleh terjumpanya ganja dalam kereta PFU 6022 seperti yang didakwa oleh saksi-saksi Polis. Kami sendiri hanya melihat ganja tersebut dibalai Polis selepas kami ditangkap.”
 The essence of the defence was that the prosecution witnesses were not telling the truth as to the appellant’s involvement in the sale transaction of the Cannabis. Both the appellants denied that they had met or spoken with SP5 or SP7 prior to their arrest. Although they did not dispute that the Cannabis were found in the car, the appellants said that they did not know how the Cannabis got into the said car.
 Considering that the veracity of the unsworn statements of the appellants cannot be tested under cross examination and having accepted the evidence of SP5 and SP7 as reliable and believable, the learned trial judge found that the appellants were not credible witnesses and that the defence has failed to raise a reasonable doubt on the prosecution’s case on the actual trafficking under section 2 of the Act. Further or in the alternative, the learned trial judge found that
the appellants had failed to rebut, on a balance of probabilities, the statutory presumption of trafficking under section 37(da) of the Act. Hence the conviction and the mandatory death sentence against the appellants.
 By the oral and written submissions of learned counsel for the second appellant, the following issues were raised:-
(i) common intention;
(iii) discrepancy in the evidence of SP10 and SP3;
(v) possession; and
(vi) on the alternative finding of presumed trafficking.
 Learned counsel for the first appellant who had, in the oral and written submissions, similarly raised the issue of common intention and negotiation, adopted the submissions of learned counsel for the second appellant. For the first appellant, the issue on double presumption was also raised.
 Since the issue of common intention is closely related to the issue of negotiation, which in turn relates to the issue of agents provocateurs, we will consider these issues together.
 On the issue of agents provocateurs, essentially, the submission for both the appellants was that the learned trial judge has erred in accepting the evidence of SP5 and SP7 when it has not been proven that they were agents provocateurs and that the prosecution has not proved that there was negotiation between the second appellant and SP5. It was the submission for both the appellants that this case was not a case involving agents provocateurs, rather it was a normal raid case undertaken by the police. This submission stemmed from the absence of handphones or proof of the phone calls and that no money was involved in the transaction.
 It was the submission of learned counsel for the second appellant that there was no evidence that SP5 spoke to the second appellant on the negotiation and thus there was no evidence that the second appellant had participated in the actual sale of the drugs. It was further submitted that had there been calls and conversation, then it is incumbent upon the investigating officer to investigate the numbers. In the instant case the handphones were not investigated, hence negotiation which was an integral part of sale under section 2 of the Act was not established beyond reasonable doubt. Consequently, learned counsel submitted that a case of actual trafficking under section 2 had not been established.
 It was further submitted for the appellants that section 40A of the Act applies only when the prosecution proved the existence of agents provocateurs which in the instant case, the prosecution had failed to do so. The cases of Mohd Za’ba Abdul Talib & Anor v PP  4
CLJ 1081 and Dato’ Hj Azman Mahalan v PP  3 CLJ 495 were cited by learned counsel for the first appellant in support of this issue.
 We accept that the prosecution has failed to produce any documentary evidence as regards the phone calls or conversation that had taken place between SP5 and the second appellant. As for the money or the flash roll, the evidence of SP9 states that he had with him RM27,000.00 to be used by the agents provocateurs for the transaction but that the agents provocateurs did not ask for the money. SP5 confirmed that he did not have the money with him as during the conversation with the second appellant, there was no request made by the second appellant to see the money.
 In our view the absence of the handphones and/or any documentary proof on the phone conversation between SP5 and the second appellant does not render the evidence of the prosecution witnesses that SP5 and SP7 had acted as agents provocateurs, valueless. The same goes for the flash money. Merely because it did not surface in the transaction, does not by itself nullify the evidence of the prosecution witnesses that this case involved agents provocateurs, warranting the rejection of the evidence of SP5 and SP7.
 The appellants in their brief unsworn statements merely deny any knowledge of the drugs and any conversation with the agents provocateurs. Their defence essentially is that they just happened to be there and that the prosecution witnesses were not telling the truth. They however admitted that they had come together in the said car to
do some work. As found by the learned trial judge, the defence version was a mere denial and that the prosecution’s story cannot possibly be concocted by SP5 and SP7. The learned trial judge did not accept the allegation of the appellants that the prosecution’s version was untrue.
 The learned trial judge had also found that the appellants did not dispute that the drugs were found in the car and that they did not offer any explanation as to how the drugs got into the said car. The rental agent, SP4 had testified that before he handed the said car to the first appellant on the morning of the arrest, there were no incriminating items in the said car. Having considered the totality of the evidence the learned trial judge accepted the evidence of the prosecution witnesses. The learned trial judge had not misdirected himself in any way in the evaluation of the evidence. We find no reason to disturb the findings of the learned trial judge.
 On the common intention, we noted that learned counsel for the second appellant in his written submission states thus “It is to be noted that there is no evidence that A2 arrived at the target location in the car bearing registration number PFU 6022 which was carrying drugs. SP5 and SP7 met A2 and (sic) the five foot way of the shops and did not see him arrive in the car bearing registration number PFU 6022”. This submission was at variance with the unsworn statement of the second appellant who had admitted arriving at the scene with the first appellant in the said car. Further, it was orally submitted by learned counsel that all that the second appellant did was to take the police to the car. This begs the question, for what reason did the second appellant bring the police to the car if
not pursuant to the prior arrangement between the second appellant and SP5?
 For the first appellant, it was submitted by learned counsel that there was no evidence of any pre-arranged plan between the first appellant and the second appellant to sell the drugs. It was further submitted that the finding by the learned trial judge was purely based on the presence of the first appellant in the car and that mere presence is not enough to establish common intention.
 Having considered the submissions and having perused the grounds of judgment, we are not able to agree with learned counsel for both the appellants. From the evidence, the involvement of the first appellant was more than just being present. The first appellant did communicate with SP5 when SP5 asked about the drugs. The first appellant responded by telling SP5 that the drugs were in the box and later the first appellant had asked the second appellant to show the drugs in the boot to SP5. The first appellant was also responsible for renting the car which had enabled both the appellants to transport the drugs. In the circumstances it cannot be said that there was no nexus between the first appellant and the second appellant.
 In our judgment the learned trial judge did not err in making the finding that although the negotiation relating to the purchase of the drugs was conducted by the second appellant, the presence of the first and the second appellants in the said car was pursuant to the arrangement made between the second appellant and SP5 and as
such common intention could properly be inferred against the appellants for the transaction of the drugs.
Discrepancy in the evidence
 Learned counsel for the second appellant highlighted the discrepancy in the evidence of the Investigating Officer (SP10) and the chemist (SP3) as regards the date the drugs were sent for analysis. This issue concerns the identity of the drugs. SP10 said it was sent to the chemist on 22.3.2007 whereas SP3 stated in her evidence that she had received the exhibits on 23.3.2007. It was the submission of learned counsel that because of the discrepancy, there was a doubt as to whether it was the drugs seized that were given to SP3 for analysis.
 Learned counsel for the second appellant had also raised the issue of the non-production of the gunny sack and the five hour delay in handing over the exhibits from SP8, the arresting officer to SP10. The gunny sack, according to learned counsel is important because SP7 had testified that he had used the keys given to him by the second appellant to pierce and tear the gunny sack to see the contents thereof. The gunny sack is to show whether there was actually a tear which goes to the identity of the drugs.
 Granted that there was a five hour gap in the handing over of the exhibits by SP8 to SP10 and that several items were lost and not produced in court, having perused the record of appeal, we are satisfied that there was no break in the chain of the evidence.
 The discrepancy in the date, in our view is insignificant. The documentary evidence i.e. the official receipt from Jabatan Kimia (exhibit P8) shows that SP3 received the exhibit from SP10 on 22.3.2007 and in her report (exhibit P9), SP3 had also stated that she was handed over the exhibits on 22.3.2007. More importantly, during the trial there was no challenge on this discrepancy.
 Further, SP8 had made the following markings on the exhibits (pg 106-109 Record of Appeal:I):-
(i) the box marked A. The drugs found therein marked A1-A5.
(ii) the “Uptown” bag marked B, the black plastic strap with white tape marked B1, the gunny sack with Thai characters was marked B2; 15 compressed slabs were marked B3-B17.
(iii) 2 compressed slabs wrapped in transparent plastic were marked C-C1; and
(iv) 1 compressed slab wrapped in transparent plastic marked D.
 He then put his signature and date 20.3.2007 on the exhibits. Except for the box marked A; the Uptown bag marked B; the black plastic with white tape marked B1 and the gunny sack with Thai characters marked B2 which were lost and not produced in court, SP8 identified all the exhibits with his markings and signature in court.
 The evidence of SP10 showed that he received all the marked items above from SP8. SP10 similarly put his signature and the date 20.3.2010 on the exhibits (pg 120, 122 Record of Appeal:I). Further, SP3 in her testimony (pg 43 Record of Appeal:I) had stated that:-
“…saya telah terima dari Inspektor Zul Hasni satu bungkusan kertas bertanda ‘E’ yang bermeterai PDRM 567.
Saya telah memeriksa isi kandungan bungkusan tersebut, saya dapati terdapat satu kotak cardboard. Dalam kotak cardboard tersebut berisi 5 bungkusan plastik yang bertanda A1 hingga A5, ada 2 tandatangan berbeza dan 2 tarikh 20.3.2007. Terdapat juga 15 bungkusan plastik yang masing-masing bertanda B3 hingga B17 dan catatan lain seperti yang dinyatakan tadi.
Seterusnya terdapat juga 2 bungkusan plastik masing-masing bertanda C & C1 dan catatan lain seperti yang saya nyatakan tadi.
Dan satu bungkusan plastik bertanda D dan catatan yang sama seperti yang saya nyatakan tadi.”
 The two signatures and the dates 20.3.07 can be clearly seen in the photographs (pg 220-225 of Record of Appeal:II). Insofar as the missing exhibits are concerned, the learned trial judge had concluded that the non-production of those exhibits was not fatal to the prosecution’s case. In the circumstances, we find that the issue on the identity of the drugs cannot be sustained.
 It was the submission of learned counsel for the second appellant that there was no evidence that the second appellant had
custody, control and knowledge of the drugs. Knowledge alone with custody and control is not possession in criminal law and that without possession, the presumption of trafficking cannot be used against the second appellant. The learned trial judge, submitted learned counsel, had therefore misdirected himself when he invoked the presumption of trafficking under section 37(da) of the Act.
 For the first appellant, learned counsel highlighted that the finger print dusting on the exhibits was negative and that actual possession has not been proved as the first appellant had never admitted nor signed the search list on the seizure of the exhibits from the said car. It was also submitted by learned counsel for the first appellant that the learned trial judge had invoked double presumption against the first appellant. The issue of double presumption argued by learned counsel was not in respect of section 37(d) and (da) but it was in respect of the inference drawn on the common intention, which according to learned counsel, the learned trial judge had impliedly made an inference of knowledge or possession against the first appellant before proceeding to invoke the presumption of trafficking under section 37(da).
 We find no merits in the submission of learned counsel. Having accepted the evidence of SP5 and SP7 which clearly established the negotiation and that the appellants had custody, control and knowledge of the drugs, the learned trial judge had correctly made a finding that the appellants had actual or mens rea possession of the drugs. His Lordship then proceeded to find actual trafficking under section 2.
 The invocation of the presumption under section 37(da) by the learned trial judge was only in the alternative. That too, was invoked after the learned trial judge found actual possession. This approach is not in breach of the rule against double presumption set out in Muhammed Hassan v PP  2 CLJ 170.
 As for the inference on common intention, it was drawn by the learned trial judge based on the facts and circumstances of the case where the appellants were found at the meeting place as agreed between SP5 and the second appellant with the drugs being transported in the car driven by the first appellant. The inference had nothing to do with any presumption under the Act. While the learned trial judge may have, in the alternative, found trafficking under section 37(da), there was no invocation of double presumption, as the learned trial judge had made a clear finding of actual or mens rea possession and trafficking under section 2.
 To conclude, we are of the view that the conviction against the appellants is safe. We therefore unanimously dismissed the appeals and confirmed the conviction and sentence imposed by the High Court against the appellants.
(TENGKU MAIMUN BINTI TUAN MAT) Judge
Court of Appeal, Malaysia
Dated 25th February 2014
For the 1st Appellant:
Burhanudeen bin Abdul Wahid Messrs. Burhan & Company 1564-L1, Wisma Burhan Jalan Kota 05000 Alor Setar.
For the 2nd Appellant:
Messrs. T. Vijay & Co
D1-2-6, Level U2, Solaris Dutamas
No. 1, Jalan Dutamas 1
50480 Kuala Lumpur.
For the Respondent:
Samihah bt. Rhazali Timbalan Pendakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan dan Rayuan Aras 5, No. 45, Lot 4G7 Persiaran Perdana Presint 4 62100 Putrajaya.