The appellant was charged with an offence under section 39B (1)(a) of the Dangerous Drug Act 1952 (DDA 1952). The charge reads as follows:
“Bahawa kamu,pada 17.07.2013, jam lebih kurang 5.40 petang, bertempat di tempat letak kereta Lot No. 886 Upper Sanctuary Apartment, MJC Batu Kawa, Kuching, di dalam Daerah Kuching, dalam Negeri Sarawak, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 754.99 gram, dan dengan itu, kamu telah melakukan satu kesalahan di bawah seksyen 39B (1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama.”
 At the conclusion of the trial, the appellant was convicted and sentenced to death by the High Court for the aforesaid offence. Aggrieved by the conviction and sentence, the appellant appealed to this Court. We had unanimously dismissed the appeal and affirmed the conviction and sentence given by the High Court judge (the trial judge). We now give our reasons.
The Prosecution’s Case
 The detailed facts had been set out in the learned trial judge’s grounds of judgment and we do not intend to repeat them again here. For the purpose of this appeal, however, we will only set out in brief the following facts.
 On 17.7.2013 at about 11.00 a.m., acting upon information received, a police raiding team led by one Inspector Khairil proceeded to the parking lot of Upper Sanctuary Apartment, MJC, Kuching. After their arrival at the place at 11.30 a.m, the raiding party kept the place under surveillance. At about 5.00 p.m., Inspector Khairil however left the scene to attend to some other matters, while the rest of the raiding members continued their watch.
 At about 5.45 p.m., Detective Corporal Rashid Bin Buniran [PW2], Detective Corporal Staward ak Brawie [PW4] and the team saw the appellant standing in front of his car, which was parked in the parking area, carrying a green plastic bag. PW2 and one D/C Lee Jun Sin were the first to approach the appellant followed by other members of the raiding party.
 PW2 introduced himself as a policeman to the appellant who appeared startled and went pale. However, he did not try to escape or throw away the bag he was carrying. The appellant later handed over the green plastic bag with the word “Voir” on it [Exhibit P (a)(ia)] to PW4.
 PW4 then opened the green plastic bag and found it to contain a black plastic bag [Exhibit P7 (a)(ib)]. Upon opening the black plastic bag, it was found to have a sealed aluminium packet referred to as “silver” packet [Exhibit P7 (a)(ic)]. PW4 cut open the silver packet in front of the appellant and the raiding team, and found it to contain sealed silver packets [Exhibit 11 P7 (a)(id)(1-5)]. After cutting open the silver packets, they were all found to contain crystalline substance believed to be syabu. Thereafter, PW4 handed all the exhibits over to PW2. PW2 then arrested the appellant and contacted Inspector Khairil to inform him of the arrest of the appellant.
 On 18.7.2013 at about 12.06 am, PW2 lodged a police report (exhibit P4) regarding the raid and he also handed over the drugs exhibits (P7 (a)(ia), P7 (a)(ib), P7 (a)(ic), P7 (a)(id) (1-5) (the exhibits) and the appellant to the Investigating Officer Inspector (P) Noor Shazalina Bte Ambo Ache (PW6).
 On 25.7.2013 PW6 sent the drug exhibits to the chemist Muzaiyanah binti Mohd Kaprawi (PW5). Upon analysis, PW5 confirmed that the drug exhibits contained 754.99 grams of methamphetamine, a scheduled drug-under the DDA 1952.
Prima Facie Case
 At the end of the prosecution’s case, and upon a maximum evaluation of the evidence adduced before the court, the learned trial judge found that the prosecution had established a prima facie case against the appellant on the following grounds:
(a) Accepting inter alia the evidence of PW2 and PW4, the appellant had custody and control of the green plastic bag [exhibit P7 (a)(ia)] at the material time and hence in possession of the impugned drugs;
(b) On knowledge, the appellant had knowledge of what he was carrying in the green plastic bag. This was revealed in the appellant’s conduct i.e. reaction, when PW2 introduced himself to him that he was a policeman. PW2 said that the appearance of the police startled the appellant who turned pale, and begged to be released.
(c) On the nature and weight of the drugs, PW5, upon analysis, confirmed that the drug exhibits contained 754.99 grams of methamphetamine. The finding was recorded in the chemist report [exhibit P7 (c)(i)]. PW5 further testified that methamphetamine is a scheduled drug under the First Schedule of section 2 of the DDA 1952; and
(d) On trafficking, the prosecution had successfully relied on the statutory presumption provided under section 37(da) (xvi) of the DDA 1952 and that the appellant was presumed to traffic in 754.99 gram of methamphetamine.
 For all the reasons aforesaid, the accused was called upon to enter his defence.
 The appellant gave evidence on oath. The appellant’s evidence in brief can be summarized is as follows:
(a) On the day of arrest, he was approached by a group of persons at the said parking lot and they asked him whether he kept anything illegal. The appellant denied saying “yes”, “batu” and “confirm b”. Instead, he replied by saying “No”.
(b) The appellant admitted that he looked “frightened and surprised” because he was carrying a big sum of money and he did not know who this group of men was.
(c) The appellant further said that he was at the material time carrying a green plastic bag which contained cash in the sum of RM 100,000.00 from his illegal online gambling. His friend, Ah Ming, gave him the black plastic bag as soon as he came out from the lift. He then put the black plastic bag inside the green plastic bag.
(d) The appellant denied any of the policemen opened the green plastic bag to check its content.
(e) According to the appellant, no one opened the green plastic bag until Insp Khairil arrived. Insp Khairil then passed to him a small knife and asked him to open the packet. After he opened the packet, they took out a plastic bag as shown in photograph 14 and he was asked to open the said plastic bag. The appellant said that he did not know that the green plastic bag contained drugs.
(f) The appellant said that according to the Forfeiture Order (Exhibit D2), the money in the green plastic bag and the black plastic bag were forfeited. Prior to the forfeiture order, the appellant had written a letter (Exhibit D1) to the relevant authority requesting the return of his money amounting to RM100,000.00 as this money was from gambling activity. The authority, however, did not return the money.
Findings at the End of Defence Case
 Upon evaluating all the evidence before the Court as required under s 182A of the Criminal Procedure Code, the learned trial judge found that the appellant had failed to raise any reasonable doubt in the prosecution’s case. Consequently, the appellant was convicted and sentenced to death. Hence, this appeal before us by the appellant.
 Before us, learned counsel for the appellant challenged the trial judge’s decision on the following two main broad points:
(a) The learned trial judge erred in fact and in law in holding that a prima facie case had been established when there are gaps in the narrative of the prosecution’s case; and
(b) The learned trial judge failed to critically assess and analyze the entire case for the defence and had failed to appreciate the essence of the defence. This failure had caused a miscarriage of justice.
 As to issue (a), the appellant claimed that the learned trial judge failed to take into consideration that the prosecution had presented two conflicting versions pertaining to the search of the green plastic bag. Those conflicting versions cannot be reconciled, thus leaving the Court with no evidence upon which a conviction can be secured. In addition, during the prosecution’s case, the learned trial judge had misdirected himself when he found that it was not for PW4 to testify on the nature of the contents of the bag that was opened by the appellant at the apartment. The non-calling of Inspector Khairil also created a gap in the prosecution case when it was patently clear that his evidence was necessary to unfold the narrative of the prosecution’s case. The learned trial judge had erred in law and in fact for not invoking the presumption of adverse inference under s 114 (g) of the Evidence Act 1950 against the prosecution. The learned trial judge also failed to take into consideration the credibility of PW2 and PW4. Moreover, the trial judge had not, at the end of the prosecution case, subjected the evidence of the prosecution’s witnesses to a maximum evaluation. The appellant’s counsel argued that the prosecution, in all circumstances of the case, had failed to prove all the elements of the offence and fell short of establishing a prima facie case against the appellant. The prosecution had not presented all the evidence which were in favour of the appellant. Hence the appellant was not given a fair trial. In support of his argument, learned counsel referred to the following cases: PP v Saare Hama & Anor (2001) 4 MLJ pg 691; Looi Kow Chai & Anor v PP (2003) 2 MLJ 65; PP v Mohd Radzi Abu Bakar (2006) 1 CLJ 457; PP v Hafiszamri bin Ahmad & Anor (2007) 1 AMR, Balachandran v PP (2005) 1 CLJ 85; PP v Kang Ho Soh (1992) 1 MLJ 360; and, PP v Zainal Arpan Molana (2012) 1 MLRA 176.
 As to issue (b), the appellant’s counsel contended that the learned trial judge failed to critically assess and analyze the entire case for the defence. The learned trial judge’s finding that the defence was a mere denial and an afterthought is wrong and unsupported by the overall evidence presented in the court. In addition, the learned trial judge was wrong when he dismissed the appellant’s defence and failed to consider the appellant’s documentary evidence (Exh D1 and D2). The failure of the learned trial judge in evaluating the defence evidence had led to a miscarriage of justice. On that note, the decision of the learned trial Judge ought not to be sustained due to its lack of merits.
Ground (a)-Whether the learned trial judge had erred in fact and in law in holding that a prima facie case had been established when there are gaps in the narrative of the prosecution’s case?
 Upon due consideration of parties’ arguments and materials on record, we opine that learned counsel’s argument on this issue has no merit. The learned trial judge had rightly made a clear affirmative finding of possession and knowledge of the impugned drugs based on the evidence adduced by the prosecution witnesses which he had accepted. We have gone through the entire evidence on record and we are in full agreement with the learned trial judge on the above affirmative finding of possession and knowledge. It was not disputed that the appellant was carrying the said bags and was seen standing in front of his car parked in the parking area before he was arrested. And, subsequently upon questioning, the appellant handed over the green plastic bag [exhibit P (a)(ia) to PW4. In the circumstances, we find that the learned trial judge had rightly arrived at the following ultimate facts at pages 212 and 213, Appeal Record Vol 2:
“ It is safe to say at the outset that the prosecution has established through PW2 and PW4 clear and credible evidence, which is unchallenged by the defence, that the Accused was carrying a green plastic bag [Exhibit P7 (a)(ia)] at the material time.
 Learned Deputy Public Prosecutor [the DPP] submitted that the prosecution has shown that the drugs in Exhibit P7 (a)(id)(1-5) were found in the possession of the Accused, who had knowledge, control and custody of the drugs seized from him. In this connection, the prosecution relied on the testimony of PW4, to whom the Accused handed over the green plastic bag [Exhibit P7 (a)(ia)], what he found inside that green bag, and the testimony of PW2 who corroborated PW4’s testimony.”
 Flowing from the above, we also find that the learned trial judge had rightly considered that there is no conflict and doubt as to the nature of the drugs in the possession of the appellant. The prosecution witnesses PW2 and PW4 had testified that the drugs were found in the silver packets. Both PW2 and PW4 had also testified that the search in the apartment did not result in any finding of incriminating exhibits. The testimony of PW2 shows that after PW4 handed over to him the drugs, the drugs were in his custody. Although PW4 later said that the silver plastic packets were also opened by the appellant in front of Inspector Khairil in the said apartment, the silver packets were the same plastic packets that were seized from the appellant before they went up to the apartment. On this issue, which was strenuously regurgitated again before us, the learned trial judge, rightly as he did, made the following findings at pages 214-215, Appeal Record Volume 2:
“ Counsel for the Accused submitted that the prosecution has led two sets of evidence which are irreconcilable and striking at each. It was submitted that the cogent evidence of PW4 has raised a reasonable doubt in respect of the accuracy of the evidence of PW2, and also a serious doubt as to the exact nature of the drugs allegedly contained in the plastic bags handed over to PW4. Since PW4 did not testify as to the nature of the drugs in the plastic bag which was opened by the Accused at the apartment, there is, therefore, a serious gap in the prosecution’s evidence which is fatal to the prosecution case.
 With respect, I do not agree that there were two irreconcilable versions. Although, according to PW4, the Accused had open the plastic bag and also the silver packets in the apartment in the presence of Inspector Khairil, it has not created a material doubt on the nature of the drugs contained in the silver packets. It is significant to note that the defence never challenged PW4’s evidence that he had opened the seized Exhibits in the said parking area and what he had found inside. Similarly, PW2’s corroborative evidence in this respect have remained unshaken in cross-examination and further cross-examination [when PW2 was recalled when a new counsel took over].
 It is further noted that even though the Accused had opened the plastic bag and also the silver packets in the apartment in front of Inspector Khairil as testified by PW4, there is no suggestion whatsoever that the contents found inside these two exhibits were different from what PW4 earlier found when he opened them and checked at the said parking lot.
 The evidence showed that PW2 opened the seized Exhibits in the said parking lot in the absence of Inspector Khairil as he was not around; then the Accused opened the plastic bag and the silver packets in the apartment in the presence of Inspector Khairil after he returned to the scene.
 In the absence of any suggestion that the contents in the black bag and the silver bags as seen by the Accused when he opened it in the apartment are different from the one seen and found by PW4 and witnessed by PW2, the fact that the Accused had also opened the plastic bag and the silver bags does not cast doubt or render incredible the evidence of PW2 and PW4 on what they had found in the seized Exhibits and what PW2 had reported in Exhibits P4 and P5.
 In my view, the prosecution has adduced ample credible evidence as to the nature of the drugs found in the five silver packets [Exhibit P7 (a)(id)(1-5)] and that the Accused had knowledge of the contents of the green plastic bag that he was carrying.”
 In addition, we respectfully agree with the learned trial judge’s finding as to the non-calling of Inspector Khairil at pages 228-229, Appeal Record, Vol 2 as follows:
“ Counsel for the Accused made an issue over the prosecution not calling Inspector Khairil. It was submitted that despite the name of Inspector Khairil was mentioned by PW4 where he, in answer to Q 386 in cross-examination, said that the Accused also opened the aluminium packet in front of Inspector Khairil, the prosecution never called him to deny or to deny such allegation.
 Bearing in mind the trite principle that the prosecution needs only to call witnesses who are necessary to unfold the narrative of the prosecution’s case, I am of the opinion that the non-calling of Inspector Khairil or D/C Lee does not create a gap, let alone a fatal gap in the prosecution’s case. This is because the prosecution had unfolded the events of discovery of the drugs from the Accused through PW2 and PW4.”
We, therefore, find no merit in learned counsel’s argument on this issue.
 On trafficking, it is now trite that the prosecution may rely on either of the presumptions, s 37 (d) or s 37 (da), to prove its case as expounded in the Federal Court case of PP v Abdul Manaf Muhamad Hassan (2006) 2 CLJ 129. The learned trial judge has appreciated correct law when he made the following findings (pages 220-221, Appeal Record Vol 2):
“ In PP v Abdul Manaf Muhamad Hassan  2 CLJ 129, it was held:
It ought to be stated at the outset that the decision in Muhammed bin Hassan only prohibits the use of double presumptions under ss. 37(d) and 37(da) of the Act. It is, therefore, open to the prosecution to rely on either of the presumptions. In other words, the prosecution may positively prove possession without relying on the presumption under s. 37(d) of the Act and go on to rely on the presumption of trafficking under s. 37(da) of the Act to support a charge under s. 39B of the Act. See Tunde Apatira & Ors. v. Public Prosecutor (supra); Msimanga Lesaly v. Public Prosecutor  1 CLJ 398 (a decision of the Court of Appeal which was confirmed by this court in Federal Court Criminal Appeal No.05-27-2004(K). Conversely, the prosecution may rely on the presumption under s. 37(d) to prove possession and seek to prove by affirmative evidence (independent of the presumption under s. 37(da)) that the accused was in fact trafficking in the dangerous drug.
 The above Federal Court’s case of Abdul Manaf amply showed that the prosecution can choose to rely on either section 37(d) or section 37(da). They are prohibited from relying on both which amounts to double presumption.
 In the present case, the prosecution had chosen to rely on the statutory presumption contained in section 37(da)(xvi) of the Dangerous Drugs Act as it has adduced evidence to show that the Accused was in possession of 754.99 gram of Methamphetamine, which exceeded the minimum 50 gram of Methamphetamine, in order to establish statutory presumption of trafficking.
 Accordingly, the prosecution has proven the third ingredient of trafficking.”
We do not find any flaw or infirmity in the above findings. There is no invocation of the double presumptions as barred by the Muhammed bin Hassan v PP  2 CLJ 170 and, as reflected in her above findings, the learned trial judge has clearly made affirmative findings of possession and knowledge as to the nature of the drugs in the appellant’s possession before invoking the s 37 (da) presumption as to the trafficking of the said impugned drugs. In the circumstances as adumbrated above, we cannot agree with learned counsel’s contention that the prosecution was left with no other alternative but to rely on the presumption under section 37 (da) of DDA 1952 to establish possession or knowledge of the drugs by the appellant. This is clearly misconceived in view of the aforesaid clear affirmative finding of possession and knowledge by the learned judge. We thus reject learned counsel’s contention on this issue.
 In the result, we find that there are more than sufficient evidence to prove all the primary facts which entitled the learned judge, as she is entitled in law to do, to find and therefore hold that the prosecution had succeeded in establishing a prima facie against the appellant.
Ground (b)-Whether the learned trial judge had failed to critically assess and analyze the entire case for the defence and had failed to appreciate the essence of the defence?
 We find no merit on this issue. We agree with the learned Deputy Public Prosecutor’s submission on this issue as well. In considering this issue, and after perusing the materials in the record of appeal, we agree with the learned judge’s finding at pages 226-227, the Appeal Record, Vol 2, as follows:
“ Counsel for the Accused submitted that the Accused’s allegation that the money inside the green plastic bag was forfeited was supported by D1 and the Forfeiture Order Exhibit 4 D2.
 With respect, I do not agree. In my opinion, Exhibit D1 merely showed that a sum of RM115,550.00 and other property were seized in relation to this case and Exhibit D2 showed that the Court had ordered some property seized in relation to this case to be forfeited. Neither Exhibit D1 nor Exhibit D2 showed that the sum of RM115,550.00 was found inside the green plastic bag or the black plastic bag.
 As I have stated earlier, if indeed there was RM100,000.00 cash inside the green plastic bag and RM10,000.00 in the black plastic bag as alleged by the Accused, it is puzzling why this material fact was never put to any of the prosecution’s witnesses especially PW2 and PW4. It is worth mentioning that the defence recalled PW4 for further cross-examination when the new counsel took over, yet again this material fact that supposedly formed the bedrock of the defence case was never put to PW4. For the Accused to raise this for the first time in his defence gives it a hallmark as an afterthought.
 Further, if it were true that it was only cash inside the green plastic bag and the black plastic bag as alleged by the Accused, the Accused was implying that the police framed him for drug trafficking. To frame somebody must involve a motive. In my opinion, it is highly improbable for the police to frame the Accused by planting drugs inside the black plastic bag. I say so because there is no suggestion that the Accused knew any of the raiding officers, in particular PW2 and PW4, and that any of them had an axe to grind which motivated them to frame him up. See, Shahrullah Bin Abdul Rakeb v PP  1 LNS 5 1721.”
 On Ah Ming, which was heavily relied on by the defence, the appellant blamed him (alleged to be a punter) as the person who passed the black plastic bag containing the impugned drugs which he thought was some money derived from his illegal gambling activities. The appellant however, as it is normal in cases of this nature, did not reveal or provide the name of this Ah Ming at the time of his arrest or suggest it to any of the prosecution’s witnesses. It is further to be noted that even during the defence stage the appellant only mentioned the name of Ah Ming but no particulars were given to SP6 in order to facilitate the investigation (the case of Al Contara A/L Ambrose Anthony v PP (1996) 1 MLJ 705 is referred). We would further opine, in the circumstances of this case, that if Ah Ming was a real person there is no reason for him to hand over the drugs to the appellant since Ah Ming was the appellant’s friend and no feud between them has been shown. Thus, we are of the view that Ah Ming is clearly a fictitious character. We note that the learned trial judge had comprehensively addressed her mind on the issues of Ah Ming and the money in the green bag, which we respectfully agree, as follows (pages 224 and 225, Appeal Record, Vol 2/2):
“58. In my opinion, the existence of Ah Ming is highly questionable and smack of an afterthought. It is pertinent to note that other than denying that he did not say “yes” to the police question whether he kept any incriminating thing, he did not say “batu” and “confirm b”, the Accused did not testify what was his response to the question whether he had kept any incriminating thing. If indeed it were true that he was carrying RM100,000.00 in cash and another RM10,000.00 just passed to him by Ah Ming, it is puzzling that during the prosecution’s case, the Accused did not put to any of prosecution’s witnesses particularly PW2 or PW4 that the Accused had told them so when PW4 asked the Accused whether he was carrying anything illegal.
59. The Accused said Ah Ming was his punter on illegal gambling. He explained that normally his customers would bank in the money themselves but on that day Ah Ming said he was busy and had no time to bank in the money, so he handed him the money, stating it was RM10,000.00 (changed to RM15,000.00 in cross-examination) and he left. Going by the Accused’s explanation, Ah Ming was paying him the betting money to the tune of RM10,000.00/ RM15,000.00. Since it was not a meagre amount, surely Ah Ming would want the Accused to count the money and to acknowledge payment to avoid future demand for payment. Conversely, one would also expect the Accused to count to find out the exact amount paid. It is inconceivable for the Accused to simply put the black plastic bag inside the green one without counting the money and blindly believed what Ah Ming told him. The hurried manner in which Ah Ming allegedly passed the money at a lobby outside the glass door and for the Accused to simply accept the plastic bag, without checking and counting the money made the story about Ah Ming highly suspect and dubious.”
 Upon evaluating the entire case, we find that the learned trial judge has not misdirected herself in finding as she did that the defence was a mere denial and that the appellant had failed to create a reasonable doubt on the prosecution case. The learned trial judge had assessed and considered the defence’s version and found that the charge preferred against the accused has been proven beyond reasonable doubt. We agree with the learned trial judge’s finding at pages 229-230, Appeal Record, Vol 2, as follows:
“ The Accused’s defence is mainly mere denials. He denied everything that happened at the said parking lot as testified by PW2 and PW4, namely:
a. The Accused denied he handed over the green plastic bag to Cpl Staward but stated that he handed the said bag to Cpl Lee.
b. He denied that he said “Yes” to the question whether he kept any incriminating things.
c. He denied that he answered “Batu” and also “Confirm B” to the police.
d. He denied that he knows the content of the black plastic bag.
e. He denied that Cpl Staward had opened the green plastic bag to check the content.
f. He denied that Cpl Staward did open the silver packet in front of him and the rest of the police party at the parking Lot No. 886.
 It is established law that bare denial does not cast doubt on the case of the prosecution. See, D.A. Duncan v PP  2 MLJ 9 195.”
 Resultantly, we are firmly of the opinion, looking at the evidence as a whole, that there was evidence upon which the court could properly arrive at the conclusion that it did and the conviction of the appellant upon the charge as preferred is safe. We, therefore, dismissed the appeal and affirmed the decision of the trial judge.
ABDUL KARIM BIN ABDUL JALIL
Court of Appeal
Dated: 3rd April 2018