DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO: P-05-258-2010
1) SHAMSUDDIN BIN DIN … RESPONDEN-
2) R.T NAGESU A/L TANIMALA RESPONDEN
(Dalam perkara mengenai Perbicaraan Jenayah No. 45-2-2003 dalam
Mahkamah Tinggi di Pulau Pinang
Pendakwa Raya Dan
1. Shamsudin bin Din
2. R.T Nagesu a/l Tanimala)
(Yang diputuskan oleh Yang Arif Pesuruhjaya Kehakiman Tuan Mohd Amin Firdaus bin Abdullah di Mahkamah Tinggi, Pulau Pinang pada 4 Jun 2010)
AZIAH ALI, HMR ROHANA YUSUF, HMR MOHD ZAWAWI SALLEH, HMR
JUDGMENT OF THE COURT
 In the High Court at Pulau Pinang the 1st accused, Shamsudin bin Din and the 2nd accused R.T Nagesu a/l Thanimalai, were jointly charged with common intention of 2 charges of drug trafficking under s 39B (1) (a) of the Dangerous Drugs Act 1952 (DDA) read together with s 34 of the Penal Code. Both offences are punishable under s 39B (2) of the DDA.
 At the end of the prosecution’s case, the learned trial judge found that the prosecution had failed to establish a prima facie case for both the charges. Both the accused persons were acquitted and discharged without having their defence being called.
 This appeal by the prosecution against the order of acquittal was set to be heard before us on 12.12.2013. However, the notice of appeal could not be served on the 1st accused despite various attempts. We do not see why the appeal against the acquittal of the 1st accused should be kept in abeyance indefinitely. It would certainly cause grave injustice against the
1st accused to have this proceedings hanging on his head without end. We then set a final hearing date for the appeal in respect of the 2nd accused and proceeded to hear the same in respect of the 1st accused alone.
 Having given our due consideration to the appeal of the prosecution in respect of the 1st accused, by a unanimous decision we dismissed the appeal and we now give our reasons for so deciding.
 This case dates back to the year 2001. Abdul Latif bin Mehat (PW5), who was acting on information received, led a team of policemen and conducted an ambush on a car (Proton Saga registration number PCK 4923) at the car park in front of the Bukit Mertajam Railway Station, at about 9.25 am on 20.03.2001. As the car stopped near the parking booth, PW5 and his team approached the car. The driver, who was the 2ndaccused, opened the door but remained seated behind the wheel. The 1st accused was in the front seat passenger. PW5 instructed both the accused to exit the car. A search was conducted, a blue sling bag (P5A) with the word “Hedgren” at the side of the bag was found lying on the floorboard behind the front passenger seat.
 Inside the bag, PW5 found 4 slabs of dried leaves. PW5 seized the items and arrested both the accused. They were both brought to the Bukit Mertajam Police Station together with the items found. At the police station, PW5 conducted body search on both the accused. PW5 found a set of keys (P35) in the pocket of the trousers of the 2nd accused.
 Upon investigation and acting on information of the 2nd accused, PW5 and his police team brought both the accused persons to a house no. 225, Jalan Samagagah, Permatang Pauh, Seberang Jaya on 21.3.2001 at about 12.15 a.m. At the house, PW5 saw the grill door padlocked. PW5 took the set of keys (P35) taken from the 2nd accused and used one of the keys to unlock the padlock.
 PW5 and his team together with both the accused persons entered the house. According to PW5, the 2nd accused showed the police 2 cardboard boxes on the floor beside the right door entrance. PW5 inspected the 2 boxes and found one box to contain 13 slabs of dried leaves and the other to contain 19 slabs of dried leaves. The total 32 slabs
of dried leaves [P7B(1-19) and P8B(1-13)] were suspected to be cannabis.
The chemist, Elliza Mat Nor (PW6) analysed the exhibits and confirmed that the exhibits contained 4,254 and 33,140 grams of Cannabis.
 At the end of the prosecution case, the learned trial judge found that the prosecution had failed to establish a prima facie case against both the accused. The learned trial judge made an order of acquittal against each of them.
 In advancing the appeal against that order of acquittal, learned DPP raised the following issues as the main grounds of appeal. The learned DPP contended that the learned trial judge was in error in finding that:
i. there was no prima facie case on the evidence before him in relation to the 1st charge;
ii. that possession was not successfully proven; and
iii. that a prima facie case on the 2nd charge was not proven in rejecting the testimony of the 2nd accused under s 27 of the Evidence Act 1950.
 The first charge relates to the offence of trafficking premised on the drugs found in the car Proton Saga PCK 4923. The learned trial judge in
our view correctly arrived at his conclusion by making a favourable inference in favour of the accused on the issue of possession. He relied on the evidence of PW7 who testified that the day before the arrest he rented the car to the 2nd accused. At the material time, the 2nd accused was driving the car and the 1st accused was in the front seat when the drugs were found on the floorboard behind the front seat. SP5 also testified that when the drugs were found in the car, both of the accused were said to appear “terkejut” (shocked).
 Taken the evidence on face value the learned trial judge concluded that by virtue of close proximity it may be inferred that both the accused persons had control and possession and thereby knowledge, of the bag found on the floorboard to contain drugs. On the other hand, having analysed the whole scenario, the learned trial judge had also drawn a favourable inference from the same facts in which the learned judge found that there was no light at the scene and from the photographs as the place was dark. There was no evidence adduced that there was any smell of cannabis permeating inside the car upon inspection by PW5. No evidence was adduced on how long both accused persons were in the car before the car appeared at the railway station. In the circumstances, the learned trial
judge cannot rule out the possibility that both accused may not have knowledge of the presence of drugs in the car.
 The finding of the learned trial judge was reinforced by the fact that both the accused cooperated well at the point of being confronted by PW5. They posed no resistance but followed what was ordered of them by PW5. The fact that they appeared “terkejut” was normal in the circumstances. The learned trial judge in our view correctly relied on the case of Phoon Liat Sum v PP  16 MLJ 205 in making a favourable inference for the accused.
 Learned DPP, however, urged this court to give due consideration to the following facts as disclosed in evidence:
i. The car was driven by the 2nd accused while the 1st accused was at the passenger side;
ii. No one else was with them;
iii. ‘Hedgren’ bag was found on the floorboard at the back of the left passenger seat;
iv. The car PCK 4923 was with the 1st accused at least 1
day prior to arrest;
v. The ‘owner’ of the car (SP7) confirmed that he rented out the car PCK 4923 without anything inside it to the 2nd accused; and
vi. When SP5 discovered the said drugs, both the accused persons were stunned.
It was the contention of the learned DPP that the above facts suffice to establish a prima facie case on the 1st charge.
 In his grounds of judgment, we found that the learned trial judge had already taken into account the facts outlined above. Relying on the same facts however he made a favourable inference on the accused as a result of the learned DPP’s failure to fill in the gaps in the prosecution case. In coming to his conclusion, he found missing links in the prosecution case, which requires more evidence to constitute knowledge and possession instead of relying on mere proximity. More is required in terms of evidence, as stated by the learned judge in his judgment, such as the smell of the cannabis and how long both the accused had been in the car. In the absence of such, the court would be entitled to rule that there was a
probability of lack of knowledge, which in our view, the learned trial judge, as a judge of facts, had correctly done.
 We, therefore, agreed with the learned trial judge that on the facts of the instant appeal an inference favourable to the accused should be made. Having done so , the learned trial judge in our view applied the correct test in Looi Kow Chai v PP [2-003] 1 CLJ 734 and Balachandran v PP  1 CLJ 85 and PP v Radzi Abu Bakar  1 CLJ 457 in concluding that there was no prima facie case established in relation to the first charge.
 We are mindful of the cases cited by the learned DPP in support of his contention of knowledge and possession to be deemed on drugs found in the car. PP v Abdul Rahman Bin Akif  5 MLJ 1 is a case when the package of drugs was found under both the driver’s and passenger’s seats but the car was in the possession of the respondent in that case for over 7 months. This had led to an irresistible inference of knowledge and possession. Furthermore, in that case the accused was alone in the car (see also Lim Beng Soon v PP  4 SLR, 589 and Foo Jua Eng v PP (1996) MLJ 197). In all the cited cases, we note that possession and knowledge of the accused would all depend on each particular facts of the
case. That being a finding of fact, would give little room for our interference at this appellate stage.
 We now come to the issues raised in relation to the second charge. The second charge relates to the drugs found in the house. Learned counsel for the 1st accused objected on the admissibility of the evidence received from the accused while under police custody under s 27 of the Evidence Act 1950. Learned DPP contended that the learned trial judge erred in disallowing statement made under s 27 Evidence Act be adduced in evidence.
 In his ground of judgment, the learned trial judge disallowed this evidence in view of the prejudicial effect it had, which in his view far outweighed the probative value of the evidence. This is because when SP5 questioned both the accused persons whether they were keeping ganja, only the 2nd accused answered in the affirmative. The discovery of the drugs was made solely pursuant to the response by the 2nd accused.
 The other reason cited by the learned judge was because the police report tendered by SP5 (P22) states that, “saya telah tanya kepada kedua-
dua suspek…kedua-dua mengaku adalah ganja”. The learned trial judge found that the word “mengaku” used would affect the accused because such word can be construed as a confession. In this regard we are not hesitant to add that the prejudicial effect on the 1st accused is worse because he did not even answer that question. We agree with the finding of the learned trial judge therefore, that in the light of the reasons above the prejudicial effect of this evidence far outweighed its probative value and should not be admitted under s 27 of the Evidence Act 1950.
 We agree with the contention of the learned counsel of the 1st accused that the rule on admissibility of evidence under s 27 is stringent as decided in Roslan Abdullah v PP (2010) 1 CLJ 685. In that case, the Court of Appeal referred to Hassamuddin Talena v PP (2002) 2 CLJ 504 where it was stated by Gopal Sri Ram JCA that, “Approximation are not permitted. In other words the exact words spoken by an accused have to be proved. An illustration of that proposition may be found in Pang Chee Meng v PP where Abdul Hamid Omar LP reminded us the need for vigilance, to ensure the credibility of evidence by the police personnel in respect of this section (that is s 27) which is so vulnerable to abuse”.
 The learned trial judge took note of the evidence that the keys (P35) obtained from the 2nd accused was successfully used to open the locked grilled door. However, there was gap in the prosecution’s case that was playing in the mind of the learned trial judge, namely, when the back grill door cannot be opened using P35. This gap led to a doubt as to whether or not the 2nd accused in fact had full control of the house. That goes for the 2nd accused. There was nothing at all to relate the offence to the 1st accused, the respondent in this appeal.
 Even if this evidence cannot be admitted under s 27 it was contended by the learned DPP that it is admissible as a matter of conduct under s 8 of the Evidence Act. However, according to SP5 this evidence only relates to the conduct of the 2nd accused and not the 1st accused. The learned trial judge correctly noted in his observation, that this was so. The testimony in relation to the 2nd charge was made by the 2nd accused alone. It is a fact that it was the 2nd accused who was in possession of the keys (P35) to the house. It was also the 2nd accused who showed the boxes containing drugs in the house. No evidence was adduced on the presence of the 1st accused’s clothing or any personal effect belonging to him in the house. It was the finding of the learned trial judge that the evidence on the 2nd
charge relates more to the 2nd accused. In his ground of judgment he said, “It would appear that the 2nd accused was the sole culpritWe find no error in the finding of fact made by the learned judge. We find no reason to disturb a finding of fact, which is supported by evidence and sound reasons made by the learned judge (see PP v Wan Razali Kassim  2 MLJ 79 (FC) Lai Kim Ho v PP  1 MLJ 91).
 In conclusion, we find no merit in the grounds of appeal raised by the learned DPP. We agree with the finding made by the learned trial judge that no prima facie case was established by the prosecution on both charges. We affirmed the order of acquittal made by the learned trial judge against the 1st accused, the respondent in this appeal. In the circumstances, we dismissed the appeal by the learned DPP.
Court of Appeal Malaysia
Dated: 17th June 2014
Counsel for the Appellant: Puan Nurshafini binti Mustafha
Timbalan Pendakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan & Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 PUTRAJAYA.
Counsel for the 1st Respondent: Encik Richard Ho and
Puan Suzanawati Ismai Tetuan Chambers of Richard Ho & Yap Peguambela & Peguamcara Suite 20-10, 20th Floor,
Wisma UOA II 21, Jalan Pinang 50450 KUALA LUMPUR