IN THE COURT OF APPEAL OF MALAYSIA
CRIMINAL APPEAL NO: P-05-21-01/2012 AND P-05-27-02/2012
NOOR AZMAN BIN ABIDIN
[In the matter of suit no: 45-33-2011 In the High Court of Malaya in Pulau Pinang]
NOOR AZMAN BIN ABIDIN
Mohamed Apandi Hj Ali, JCA Linton Albert, Jca Hamid Sultan Bin Abu Backer, JCA
Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court)
GROUNDS OF JUDGMENT
 The appellant’s/accused appeal against conviction and sentence for possession, and the prosecution appeal against the decision of the learned trial judge for reducing the charge of trafficking to one of possession of dangerous drugs at the prosecution stage, came up for hearing on 07-05-2013. We heard both the appeals and dismissed the prosecution appeal and allowed the accused appeal. My learned brothers Mohamed Apandi bin Haji Ali JCA and Linton Albert JCA have read the judgment and approved the same. This is our judgment.
 In the instant case the accused was charged for trafficking under section 39B 1(a) of the Dangerous Drugs Act 1952 (DDA 1952). At the end of the prosecution case the learned trial judge reduced the charge of one relating to possession and amended the charge to attract section 39A (2) DDA 1952 and called for the defence. At the end of the defence case the accused was convicted and sentenced to 18 years imprisonment and 10 strokes of the ‘rotan’. The amended charge by the judge under section 39 A(2) reads as follows:
“Bahawa kamu pada 5.1.2011, jam lebih kurang 3.00 petang, di kawasan letak kereta belakang Pasaraya Sunshine, Air Itam, Georgetown, di dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang telah didapati ada dalam milikan kamu dadah berbahaya iaitu cannabis seberat 1,941 gram. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah Seksyen 6 Akta Dadah
Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39A (2) Akta yang sama.”
 The facts of the case is well adumbrated by the learned trial judge in his 27 pages judgment. We do not wish to repeat the same, save for the purpose of the appeal to summarise as follows:
(a) The police had information of a person known as ‘Adik’ who was involved in drug trafficking, and had also his mobile No. 017-4835772 and one officer SP3 (agent provocateur) had communicated on the said number several times for the purchase of drugs.
(b) Even though the name known was ‘Adik’, when SP3 first communicated with the person, the person who replied identified himself as ‘Mat’. The various telephone conversations as per evidence were with ‘Mat’.
(c) SP3 after having finalized the deal with ‘Mat’ subsequently agreed to meet ‘Mat’ at the designated place. Mat came with a yellow coloured bag and knocked on the window of the car of SP3 who was waiting to buy the drugs. Subsequently Mat was arrested, and charged.
(i) His brother Mohd Azuddin was known as ‘Adik’, and he is the one who is the owner of the mobile no. 017-4835772. His mobile no. was 013-4334201.
(ii) It was ‘Adik’ who has asked him to hand over the bag to SP3. When he knocked on the window and when the window was opened he had informed SP3 that ‘Adik’ had informed that the bag was to be handed over.
 The learned trial judge had captured the defence in the judgment as follows:
“Thus the trial is to proceed by getting a plea of the accused afresh on the amended charge. Having read and explained the amended charge, the accused maintained his plea of not guilty. The accused gave his evidence on oath. His evidence is this. On 5.1.2011 the accused went to Pasaraya Sunshine to buy milk of S 26 brand for his new borned baby. He went there in a Proton Waja motorcar, PFU 8619. The Proton Waja was driven by Mohd. Azuddin. The said motorcar was owned by Noor Azuan. Mohd. Azuddin and Noor Azuan are both the younger brothers of the accused. While on the way to the Pasaraya Sunshine, Mohd. Azuddin was heard talking over the phone to someone but the accused did not understand the conversation.
Upon arrival at the Pasaraya Sunshine, Mohd. Azuddin stopped the motorcar in front of its main entrance. At the request of Mohd. Azuddin, the accused took a yellow-coloured bag from inside the motorcar to be handed over to a man waiting in the black motorcar at the parking area. The accused was made to understand by Mohd.
Azuddin that the bag contained the later’s wedding invitation cards which were needed to be printed. The accused noticed that there were two wrapped packages in the bag as the “mouth” of the bag was not sealed. The contents in the packages could not be seen. The accused entered the waiting motorcar and delivered the bag to the man in the driver’s seat. In doing so, a group of men rushed towards him. Subsequently, he came to know that they were police officers. One of the police officers informed him that he had carried offending goods, to which the accused replied that he carried the wedding cards which were intended to be printed. At the time of his arrest, the accused said there was no scuffle but he was frightened. Mohd. Azuddin sped off in the said Proton Waja motorcar. He was subsequently arrested together with the said motorcar. The accused version that there was no struggle and Mohd. Azuddin bolted away are contrary to the prosecution evidence.
The accused claimed that he had no knowledge that the bag contained ganja. The ganja belonged to Mohd. Azuddin. He did not involved in the sale transaction of the ganja. He refuted Ramesh, SP 3 evidence that he had asked to see the money and also Ramesh, SP 3 evidence that he wanted to view the drugs first. The accused also denied meeting Ramesh, SP 3 behind the said motorcar. According to him, he entered the motorcar to hand over the bag to SP 3. Again this is inconsistent with the prosecution evidence.
The accused called his father, Abidin bin Gurameah, SD 2 as his witness. SD 2 said the accused, Mohd. Abidin and Noor Azuan are his siblings. Mohd. Azuddin was scheduled to get married in March, 2011. SD 2 also confirmed that the Proton Waja motorcar, PFQ 8619 was owned by Noor Azuan and Mohd. Azuddin used to borrow the said motorcar. Mohd. Azuddin was also arrested by the police and upon his release from police custody, he could not be traced.
From his line of defence, the accused attempted to show that the drugs belonged to Mohd. Azuddin. However, here we are not dealing with ownership of the drugs but we are concern with legal possession of the same. “The primary legal meaning of “possess” is
to have possession, as distinct from ownership …… and I think
“possession” means possession irrespective of whether the possessor is the beneficial owner” per Taylor J in Leow Nghee Lim v Reg  22 MLJ 28.
The accused’s task is merely give an explanation to cast a reasonable doubt in the prosecution case: And further to rebut the presumption of possession under s 37(d) which has been activated against him on the balance of probabilities. Having amended the charge at the close of the prosecution’s case, trafficking is no longer the issue at this stage. We are only concern with possession. Knowledge is a constituent element of possession. Without knowledge there cannot be possession but there can be possession without full and exact knowledge. The accused said he had no knowledge of the contents of the yellow-coloured bag. To him the bag which he was carrying, contained wedding invitation cards which were meant to be printed. This is not plausible or probable because of valid and authenticated reasons. Firstly, ordinarily only one piece of card is required as a sample or specimen to have them printed in large quantity. Secondly, the two packages in the bag were fully wrapped up in aluminium and translucent plastic were not, by any stretch of imagination, consistent with the packages which contained the wedding cards. Thirdly, the manner the two packages were wrapped, the wrappers being aluminium sheets and transparent plastic, its rectangular shape, colour, thickness and both packages were of similar size were more consistent with the packages that contained the drugs ganja [please see photographs P 6B, C & D]. Fourthly, its weight – about 2 kilogrammes – were fairly heavy to assume the weight of the wedding cards.
Looking at the demeanour and facial expression of the accused while giving evidence in the witness box, I found the accused defence of no knowledge is hard to believe. More so the accused passed the blame to his brother, Mohd. Azuddin who had mysteriously gone missing. Why must Mohd. Azuddin absconded, if he had nothing to hide. This in itself amounted to a reasonable doubt, argued learned counsel. Several authorities are cited and relied by learned counsel and one of which is PP v Ooi Chun Seng  3 CLJ [Rep.] 611.The disappearance of Mohd. Azuddin was seized by the accused to pass the bulk to the former in his defence. I have grave reservation to accept his defence or to believe him, having regard to the surrounding circumstances and the probabilities of the case.
It is highly improbable that a large amount of drugs ganja in the bag was “planted” by Mohd. Azuddin, knowing that upon arrest and conviction would attract a death penalty. Mohd. Azuddin would not like that to happen to his brother i.e. the accused, said the father, SD 2. Was Mohd. Azuddin a villain? I was of the considered view that he was not. But the accused was.
In the final analysis of the defence case, having regard to the totality of the evidence, the defence has failed to raise a reasonable doubt in the prosecution’s case and also failed to rebut the presumption of possession and knowledge under s 37(d) of the Act which had been activated against the accused when his defence was called on the amended charge.
Accordingly, the accused is found guilty and convicted on the amended charge.”
 The learned counsel for the accused had filed a lengthy petition of appeal. It will serve no useful purpose to deal with same save to deal with the relevant issues as to whether the conviction is safe.
 We have read the appeal record, the petition of appeal and the submission of the parties in detail. We take the view the appeal by the accused must be allowed and the appeal by the prosecution must be dismissed. Our reasons’ inter alia are as follows:
(i) In the instant case the police information was in relation to ‘Adik’ and not Mat. In addition ‘Mat’s’ phone number is different from ‘Adik’. ‘Adik’ is not a fictitious person but the brother of ‘Mat’ whose name was Mohd. Azuddin.
(ii) In short the defence story is not inherently incredible, and ought to have been tested with the prosecution case. If it has been tested with the prosecution case, with the application of the Radhi’s direction, it is bound to have created a reasonable doubt in the mind of the judge. The learned judge’s analysis of the defence story had element of speculation which in law and fact has compromised the integrity of decision making process. And in addition some of the conclusion of the learned trial judge in our considered view attracts the jurisprudence relating to perverse decision. To name a few are as follows:
(a) The accused version is he wanted to go to the printers to print wedding cards and that is what he thought he was carrying. The learned judge’s conclusion that only
one card is required as a sample or specimen to have them printed in large quantity is not one based on finding of facts.
(b) The comment that Mohd Azuddin would not want his brother to be arrested and convicted for death penalty is also not one of finding of fact and perverse to the accused.
 What is important to note is that the learned judge had not focused his mind on this character ‘Adik’ i.e. Mohd. Azuddin when the law requires the prosecution to deal with the issue to prove their case beyond reasonable doubt as cases such as Alcontara a/l Ambross Anthony v Public Prosecutor  1 MLJ 209 would advocate. [This panel has dealt with similar issues in a number of cases to name a few are as follows: (i) Ahmad Mukamal bin Abdul Wahab & Ors v PP  4 CLJ 949; Munuswamy Sundar Raj v PP  MLJU 373].
 We have repeatedly checked the appeal record to see whether the prosecution who commenced the version with the name ‘Adik’ had led evidence to show ‘Adik’ and ‘Mat’ are one and the same person taking into consideration the different mobile numbers on the factual matrix of the case. We found none to pass the maximum evaluation test and evidence to prove the case on the required standard at the prosecution stage as well as the defence stage. In addition, the perverse statements in actual fact had compromised the decision making process which according to established principles will attract the jurisprudence relating to unsafe decision.
 We have dealt with the jurisprudence relating to ‘unsafe to convict’ in a number of judgments. [see PP v Thenegaran a/l Murugan  4 CLJ 364]. We do not wish to repeat save to quote a passage from the learned author Christopher J. Emmins, 3rd edition, at page 292 ‘A practical approach to Criminal Procedure’ which states:
“Conviction unsafe or unsatisfactory
The test for whether a conviction is unsafe or unsatisfactory is a subjective one. Each member of the Court of Appeal asks himself’
‘Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?’ If he has, then he should be for allowing the appeal; if not, his vote should go against the appellant (see Lord Kilbrandon in Staffort v DPP  AC 878 at p.912). Lord Kilbrandon was, in fact, paraphrasing what the Court of Appeal had said in the earlier case of R v Cooper  IQB 267, namely that the question for each appeal judge is: ‘Do the
circumstances of the case leave me with lurking doubts, causing me to wonder whether injustice has been done?”
 It must be observed that the issue whether it is safe or unsafe is within the exclusive and subjective jurisdiction of the first appellate court and is not amenable to apex intervention unless it can be demonstrated that the first instant appeal court could not have achieved the said decision, and there is overwhelming evidence to support the conviction beyond reasonable doubt. In Thenegaran a/l Murugan & Anor v PP  3 MLJ 328, this court through Hamid Sultan Bin Abu Backer had this to say:
In our view whether it is a subjective or objective question or test it must in criminal cases be a decision where there is lurking doubt leans in favour of the accused.”
 The hallmark of judgment writing in criminal case is achieved only when there has been a just and fair assessment of the defence story as long as it is not inherently incredible taking into consideration that it is for the prosecution to prove its case beyond reasonable doubt at the prosecution case as well as the defence stage, notwithstanding the fact where the law may require the defence to rebut the charge on balance of probabilities. Lack of proper assessment will in actual fact compromise the integrity of the decision making process, making the conviction unsafe. The related jurisprudence on assessment of the defence case was eloquently stated by Justice Sharma as early as 1971 in the case of PP v Saimin & ors  2 MLJ 16 in the following words:
“A conviction cannot be sustained even if the court is satisfied that the prosecution story “may be true” unless and until it is found that the prosecution story “must be true.” The burden of proof remains on the prosecution throughout the trial. If the learned magistrate was not satisfied with the case of the prosecution it was his duty to acquit and discharge the accused at the close of the prosecution case. The falsity of the defence does not relieve the prosecution from proving the prosecution case beyond reasonable doubt. ”
 We are of the considered view that on the factual matrix of the case it is unsafe to convict. In consequence the appeal is allowed,
conviction and sentence is squashed. The appellant is acquitted and discharged. The prosecution’s appeal is dismissed.
We hereby order so.
Dated: 24 July 2013
(DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER)
Court of Appeal Malaysia
Note: Grounds of Judgment subject to correction of error and editorial adjustment etc.
Hussaini bin Abdul Rashid Messrs. Husaini & Co. Pulau Pinang.
Aslinda Ahad Timbalan Pendakwa Raya Jabatan Peguam Negara Putrajaya.