The respondent, a female Mongolian national, was acquitted by the learned trial judge at the end of the defence’s case in respect of the following charges:
The First charge
"Bahawa kamu pada 26.1.2013, jam lebih kurang 1.30 pagi di alamat No. 15-04, Spring Villa Condominium, No. 11, Jalan SS 12/1, di dalam Daerah Subang Jaya, di dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Heroine seberat 7823.6 gram dan Monoacetylmorphine seberat 1872.3 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah s.39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s.39B(2) Akta yang sama.”
The Second charge
"Bahawa kamu pada 26.1.2013, jam lebih kurang 1.30 pagi di alamat No. 15-04, Spring Villa Condominium, No. 11, Jalan SS 12/1, di dalam Daerah Subang Jaya, di dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Heroine seberat 19665.3 gram dan Monoacetylmorphine seberat 1166.9 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah s.39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s.39B(2) Akta yang sama.”
The Case For The Prosecution
 On 26.1.2013 at about 1.30 a.m. a police team led by SP7 (Insp. Sherman Jackson Jon Bosco) raided unit No. 15-04, Spring Villa Condominium, No. 11, Jalan SS/1, Subang Jaya, at the 15th floor (‘the Condo’) and forced their entry into the Condo by breaking the padlock attached to the grill of the front door and breaking the door using a door-rammer. The respondent was found alone inside the Condo, standing in fear at the living area as the policemen rushed in.
 SP6, the Condo’s owner, would later testify that the Condo was rented by a Nigerian man named ‘Odikpo Vincent Anyebuchi’ (“Vincent”) and the respondent lived together with Vincent as he had seen her there in his previous visits.
 The Condo had two rooms. The first room at the front is smaller than master bedroom at the back which had an attached bathroom. The drugs were found on the floor and on the bed inside the first room and on top of the ceiling inside the bathroom. The door to both rooms were unlocked.
 The massive amount of the drugs, as indicated by their respective weights stated in the two charges, were in the form of yellowish substance hidden inside hundreds of dates-like ‘capsules’ wrapped with transparent plastic found inside the 3 boxes on the floor; yellowish substance contained in 11 plastic packages found on the bed; and yellowish substance contained in 51 plastic packages found hidden on top of the ceiling inside the bathroom. Also found on the floor was a box marked “SUKKUR DATES” containing about 20 kilograms of dates fruit and another box containing 3 knives and 2 face masks.
 The yellowish substance were confirmed by SP2 (Norhaya binti Jaafar, the chemist), to contain Heroin and Monoacetylmorphine (hereinafter referred to as “the said drugs”) in weight as stated in the two charges. Her report is exhibit P11 evinced at pp. 58-63, Jilid 3A, Rekod Rayuan (RR). She confirmed that the said drugs are listed in the First Schedule of the Dangerous Drugs Act, 1952 (hereinafter referred to as “the DDA”).
Findings Of The Learned Trial Judge
 At the end of the prosecution’s case, the learned trial judge found that:
(i) the respondent was an occupant of the Condo and she was found alone inside the Condo at the time of the raid;
(ii) she had the custody and control of the drugs found inside the Condo;
(iii) the statutory presumption of possession under s.37(d) was applicable against the respondent;
(iv) the conduct of the respondent of being frightened, shocked and stunned (“ketakutan, terkejut dan tergamam”) when the Condo was raided by the police showed that she had knowledge about the drugs inside the Condo;
(v) the huge amount of the drugs found inside the Condo led to an irresistible inference that the drugs were kept by the respondent with an intention of trafficking; and
(vi) the respondent had committed an act of trafficking by ‘keeping’ (“menyimpan") the drugs as provided under s.2 of the DDA.
 Consequently, the learned trial judge found that a prima facie case of drug-trafficking had been proven against the respondent in respect of both of the charges and the respondent was accordingly called to enter her defence.
The Defence Case
 The respondent lived in the Condo with her Nigerian boyfriend, named Vincent, since January 2012. They studied at the same college and Vincent had asked her to stay with him at the Condo. The Condo had 2 bedrooms and they stayed together in the master bedroom. The other room was used by Vincent to store his personel items. The Condo was also frequented by Vincent’s friends. On the day of the raid, Vincent had left the Condo at about 11.00 p.m. after receiving a telephone call.
 During the raid, SP7 had asked her “Where are the Nigerian?” and showed her a photo of “Nigeria guy” which she did not recognize. She asked SP7 “Are you looking for Vincent?” and told him that if he was looking for Vincent, he had gone out. SP7 had earlier denied under cross-examination that the first thing he asked the respondent was “Where are the Nigerian?”
 As regards to the boxes found on the floor inside the room, the respondent testified that she was told by Vincent that the boxes contained dates fruit. Referring to a delivery receipt dated 9.1.2013 (exhibit P26(2)) found inside the Condo, she testified that she and Vincent went together to the courier’s office to take delivery of the 5 cartons of dates and Vincent had asked her to sign the delivery receipt on his behalf as he had problems with his passport. They then brought the cartons back to the Condo and put them inside the room. Ultimately, she denied any knowledge of the drugs found inside the room and the ceiling of the bathroom.
 The respondent further testified that SP12 (Insp. Mohd. Syaipul Rizal b. Abu Bakar, the investigating officer) came to the Condo about two hours after the raid and met SP7 there. SP12 also asked her about Vincent and some other Nigerians. The police searched the bedroom and took her two mobile phones. She showed SP12 the photo of Vincent and his text messages inside the phones.
Findings Of The Learned Trial Judge
 At the end of the defence’s case, the learned trial judge found that:
(i) the defence was reasonable and acceptable (“sangat munasabah dan wajar diterima”);
(ii) it was not a fabrication, a bare denial or an afterthought (“bukanlah bersifat rekaan, penafian atau berbentuk afterthought”);
(iii) it had raised a reasonable doubt against the prosecution’s case; and it had rebutted the statutory presumption of possession under s.37(d) of the DDA in respect of both of the charges.
 The learned trial judge further made the following findings:
(i) there were discrepancies in the evidence of SP12, SP1 (L/Kpl. Hussni Haris bin Ramli, the photographer) and SP9 (DSP Zuraimi b. Zam Zam, the Forensic Officer) regarding the presence of SP12 inside the Condo at about 4.00 a.m. before he was assigned as the investigating officer for the case at about 11.30 a.m. on the same day when the suspect and the seized items were handed over to him by SP7. However, SP12 testified that he had only stayed at the ground floor and denied having entered the Condo, whereas the evidence of SP1 and SP9 showed that SP12 was present inside the Condo;
(ii) the conduct of SP12 being present at the Condo before he was assigned as the investigating officer gave rise to an inference that there was a possibility that the drugs and the premise had been tampered with by SP12 and his team members;
(iii) the prosecution had failed to prove that the respondent had exclusive access to the premises; and there was evidence that there was access by and the presence of other person inside the premises;
(iv) an adverse inference under s.114(g) of the Evidence Act, 1950 was applicable against the prosecution for its failure to investigate the information about Vincent whose existence was raised by the respondent, as reflected in the 2 mobile phones seized from her containing the telephone number of Vincent and the text messages posted to her. The failure to investigate the said Vincent resulted in the prosecution’s failure to produce Vincent as a witness;
(v) the evidence of SP5 (Dr. Seah Lay Hong), the chemist conducting the DNA profiling from 3 toothbrushes, a t-shirt and a towel, showed the presence of other individuals at the premises (“Male 1” and "Female 1”). It confirmed the evidence of the respondent that the Condo was also occupied by Vincent and accessible to others who frequented the Condo;
(vi) there was no overt act by the respondent that constituted a direct evidence of trafficking;
(vii) there was no evidence to prove that the respondent had knowledge (mens rea) about the said drugs inside the room. The conduct of the respondent of being nervous (“gelisah”) as testified by SP7 was a normal reaction under the circumstances whereby the Condo was broken into by a group of men at about 1.30 a.m. and she was alone. In addition, the respondent had fully co-operated with the police and had made no attempt to escape and put up no fight;
(viii) the respondent had explained about the boxes inside the said room that was used by Vincent to keep his personel belongings and frequented by others; and
(ix) there was no evidence to show that the respondent had any knowledge about the drugs found hidden inside the ceiling of the bathroom.
 Consequently, the respondent was acquitted of both of the charges and hence, this appeal before us by the prosecution.
 The learned DPP had raised the following grounds of appeal:
(i) The learned trial judge had erred in revisiting the prosecution’s case at the end of the defence’s case and had made a wrong finding that there were contradictions between the evidence of SP12, SP7, SP1 and SP9 and thereupon making an inference that the said drugs had been tampered with by SP12 and his team; and
(ii) The learned trial judge erred to find that the defence had raised a reasonable doubt against the prosecution case.
Ground (i) - whether the learned trial judge erred to revisit the prosecution case at the end of the defence case and thereupon to make an inference that the drugs had been tampered with.
 The learned DPP submitted that at the end of the defence’s case, the learned trial judge should determine whether the defence had raised a reasonable doubt against the prosecution’s case, but instead His Lordship went back to re-evaluate the evidence of the prosecution’s witnesses and went on to find the contradictions which were not there at the end of the prosecution’s case. The learned DPP relied on the Federal Court case of Duis Akim & Ors v Public Prosecutor  1 MLJ 49 where it was held:
“ We note that when assessing the defence the learned trial judge surprisingly revisited his earlier findings upon which he called for the defence. Such approach is quite contrary to the principle of maximum evaluation of the evidence adduced at the close of the prosecution's case. Indeed in his judgment the learned trial judge made it very clear that he had conducted a maximum evaluation of the evidence adduced by the prosecution before calling for the defence.
 In Public Prosecutor v Khong Soh  2 MLJ 137 MacIntyre J said this at p 139:
Having held that a prima facie case had been made out against the respondent, the learned president should have given his reasons for holding why the respondent's evidence had created a reasonable doubt in his mind.
 Thus, in the present case the learned trial judge, having given the evidence before him the maximum evaluation before calling for the defence, should have therefore focused on whether the defence had cast a reasonable doubt in the prosecution's case and even if it did not, whether as a whole the prosecution had proved its case beyond reasonable doubt before finding the appellants innocent or guilty for the offence as charged.”
 Hence, the issue now is whether the learned trial judge had committed an error of revisiting his earlier finding in the similar sense of the word used by the Federal Court in Duis Akim & Ors (supra) by making a finding that there were contradictions in the evidence of the prosecution’s witnesses when earlier there were no such contradictions found at the end of the prosecution’s case.
 The learned trial judge, at the end of the defence case, held as follows (at p.27, Jilid 1, RR):
“Di dalam sesuatu perbicaraan, adalah menjadi tugas Mahkamah untuk melakukan penilaian kes secara keseluruhan. Keterangan dari saksi-saksi Pendakwaan perlu diteliti dan ditimbangkan bersama dengan keterangan saksi-saksi Pembelaan, bagi dibuat penilaian sebelum suatu keputusan dicapai. Di dalam melaksanakan penelitian tersebut, keterangan terperinci setiap seorang saksi perlu dilakukan. Meneliti serta menilai semula keterangan yang disampaikan oleh saksi-saksi Pendakwaan, saya mendapati wujudnya beberapa percanggahan yang begitu material, setelah diteliti dan dibandingkan dengan keterangan dari Tertuduh. Ini terutamanya dilihat begitu ketara melalui keterangan yang disampaikan oleh SP12, Pegawai Penyiasat kes.
Di dalam bahagian-bahagian yang begitu material, keterangan SP12 jelas kelihatan bercanggah dengan keterangan SP7, SP1 dan SP9. Di samping percanggahan, peranan yang dimainkan oleh beliau di dalam kes ini telah membangkitkan pelbagai persoalan. Adakah peranan tersebut wajar dilakukan oleh seorang Pegawai Penyiasat?"
 Certainly, there is nothing wrong for the learned trial judge to re-evaluate the evidence of the prosecution’s witness in light of the defence evidence. In fact it was incumbent for the learned trial judge to do so for otherwise His Lordship would be faulted with failure to sufficiently appreciate the evidence of the defence. However, from the excerpts referred to above, very clearly what the learned trial judge did was to entirely revisit his earlier findings at the end of the prosecution’s case in terms forbidden by the Federal Court in Duis Akim and Ors (supra).
 The respondent in her defence testified that SP12 was present inside the Condo together with SP7 after the raid at about 4.00 a.m. SP12, however, gave evidence to the contrary.
 The learned trial judge having re-evaluated the evidence of the material witness for the prosecution at the end of the defence case now found that there were material discrepancies between the evidence of SP12 denying his presence inside the Condo and the evidence of the respondent, SP1, SP7 and SP9 all of which testified that SP12 was present inside the Condo.
 SP12 testified that he was the investigating officer on duty and he went to the crime scene at about 4.00 a.m. on 26.1.2013 after being informed about the case. However, he merely stayed at the ground floor and denied to have entered the Condo. The purpose of his presence there was to wait for the forensic team to arrive and he left the place upon their arrival. Regarding the evidence of SP1 and SP9 that he was present inside the Condo, he clarified that they had mistakenly identified him with SP7. The learned trial judge had apparently dismissed SP12’s clarification and had further re-evaluated his testimony in the following terms (at pp. 29-31, Jilid 1, RR):
“Terhadap percanggahan ini apabila disoal oleh peguambela, jawapan yang diberikan oleh Inspektor Syaiful ialah, SP1 dan SP9 mungkin tersilap orang dengan dia sendiri mengandaikan warna kulit dirinya dengan SP7 iaitu Inspektor Sherman Jackson yang sedikit gelap sebagai alasannya. Persoalannya mana mungkin terjadi begitu, kerana yang mengesahkan kehadiran beliau di Unit itu di saat yang material bukan sahaja oleh jurufoto (SP1) malah oleh Ketua Pasukan Forensik sendiri-DSP Zuraimi bin Zam Zam (SP9).
Undang-undang menetapkan di dalam keadaan di mana terdapat dua versi yang berbeza dikemukakan, versi yang memihak kepada tertuduh perlulah diterima (Kes PP v. Lee Eng Kooi  2 CLJ 534).
Keterangan yang memihak kepada Tertuduh adalah bahawa Inspektor Syaiful sememangnya telah lebih awal melibatkan dirinya dengan kes ini sebelum diserahkan dengan tangkapan dan barang-barang kes pada jam 11.30 pagi di IPD Subang Jaya. Beliau sememangnya telah berada dan masuk ke dalam premis kejadian, mempunyai kawalan ke atas keseluruhan tempat kejadian tersebut, mempunyai kawalan ke atas Tertuduh, memberikan taklimat berkenaan kes tersebut, mempunyai pengetahuan berkenaan penemuan dan adanya bahan disyakki berbahaya di atas lantai dan atas katil di dalam Bilik Pertama dan di dalam dua beg pakaian di dalam Bilik Utama, dan berada bersama dengan Pegawai Forensik serta pasukan Forensik di sepanjang proses pemeriksaan dan pengumpulan bahan-bahan kes dilakukan.
Inferens yang boleh dibuat ialah terdapatnya kemungkinan barang-barang kes yang disyakki dadah berbahaya serta keadaan di dalam premis kejadian telah diganggu (tampered with) oleh SP12 dan anggotanya sendiri sedangkan pada waktu tersebut beliau masih belum lagi bertindak sebagai Pegawai Penyiasat dan memulakan siasatannya. Perkara ini bukanlah sesuatu yang mustahil kerana berdasarkan kepada keterangan, beliau dan pasukannya telah berada di dalam premis tersebut serta mengawal keadaan di dalamnya serta mengawal Tertuduh dan memberikan taklimat berkenaan kes tersebut kepada unit Forensik, sebelum dari tugasan beliau selaku Pegawai Penyiasat bermula lagi. Keterangan SP9 meyakinkan Mahkamah akan perlakuan SP12 dan anggotanya itu. Sesungguhnya terdapat percanggahan yang begitu material sesama keterangan saksi pendakwaan sendiri seperti yang dinyatakan itu. Lantas unjuran dari percanggahan tersebut, ia langsung menjurus kepada soal kredibiliti dan kebolehpercayaan keterangan yang ditampilkan. Jadi, keterangan siapakah yang hendak disandarkan. Ketulenan keterangan yang ditampilkan itu amat meragukan kebenarannya. Apabila kredibiliti saksi dipersoalkan dan kurang diyakini, lambakan keterangan yang dikemukakan turut diragui keterangannya. Tidak mustahil lain-lain bahagian keterangan, khususnya tugasan penyiasatan oleh SP12 ini turut memerlukan ujian kemunasabahan dilakukan bagi menilai ketulenannya. Sesungguhnya begitulah hakikat yang terjadi di dalam kes ini.” (Emphasis ours)
 The learned DPP submitted that the inference made by the learned trial judge that the drugs had been tampered with was based entirely on mere conjecture unsupported by evidence. Having perused through the entire record of appeal, we found ourselves in agreement with the learned DPP’s submission. In addition, we find nothing objectionable for the investigating officer to be present at the scene of the crime in the midst of the raid so long as it does not compromise the need to investigate the crime objectively and fairly. We could find no evidence to suggest that the investigation of this case was wanting in objectiveness nor fairness.
 We were of the view that the learned trial judge had made the aforesaid inference based solely on the finding that SP12 was present inside the Condo before he was assigned as the investigating officer of the case. The learned trial judge was suspicious of SP12’s conduct and motive and in so doing, the learned trial judge had discredited the evidence of SP12 to the contrary and proceeded to cast a doubt on the credibility of his entire investigation.
 While we accept that it is entirely within the discretion of the learned trial judge to accept the evidence of the respondent that SP12 was present inside the Condo at the material time, which in His Lordship’s view, was supported by the evidence of SP1 and SP9, and to disbelieve the evidence of SP12, we found nothing in the evidence to support the inference that the drugs had been tampered with. The learned trial judge had failed to explain in what way the drugs had been tampered with, other than questioning the motive why SP12 ‘and his team’ were present at the Condo at the material time. It must be noted that the identity of the drugs had never been an issue. The weight of the drugs had never came into question. It was never the case for the defence that the drugs had been tampered with. It was not even suggested to the raiding party that the drug exhibits had been tampered with.
 Thus, it is our view that the inference made by the learned trial judge that the drugs had been tampered with is unsupported by evidence, sufficient to warrant our intervention to purge the said inference. In our judgment, there is no reason for us to doubt the identity of the said drugs, nor to erase the credibility of SP-12, nor to discredit his entire investigation purely upon his purported appearance inside the Condo when the raid was still in progress.
Ground (ii) - whether the defence had raised a reasonable doubt against the prosecution case
 The learned trial judge having heard the evidence canvassed by the respondent, held as follows (di m.s. 26, 27, Jilid 1, RR):
“Meneliti dan menilai akan keterangan yang telah disampaikan oleh keterangan Tertuduh, Mahkamah memutuskan yang versi Tertuduh ini melalui keterangan pembelaannya telah berjaya menimbulkan suatu keraguan yang munasabah terhadap kes pendakwaan. Keterangan Pembelaan oleh Tertuduh ini didapati sebagai sesuatu yang sangat munasabah dan wajar untuk diterima. Pembelaan Tertuduh telah berjaya menimbulkan keraguan yang munasabah terhadap kes Pendakwaan.
Meneliti serta menganalisa keterangan secara keseluruhannya, terutama di peringkat kes pembelaan, didapati bahawa versi pembelaan oleh Tertuduh bukanlah bersifat rekaan, penafian (“bare denial”) atau berbentuk “afterthought”.
Oleh itu, suatu keraguan yang munasabah telah berjaya dibangkitkan oleh Tertuduh ini, lantas dapat mematahkan anggapan pengetahuan di bawah Seksyen 37(d) Akta.”
 The learned trial judge would then proceed to find that there were reasons to believe that the drugs had been tampered with by SP12 and his team thus raising doubt on the identity of the drugs; there were evidence of the presence of others inside the Condo as the Condo was rented by Vincent and frequented by others thus negating exclusive access to the premises by the respondent; there were no overt acts by the respondent to constitute direct evidence of trafficking; and, there was no evidence that the respondent had knowledge of existence of the drugs found inside the room in the Condo.
 However, the learned DPP submitted that the defence’s case is nothing more than a mere denial and the learned trial judge had failed to give sufficient reasons in support of the finding that the defence had succeeded to rebut the finding of possession and knowledge under s.37(d) of the DDA and of trafficking under s.2 of the DDA made earlier at the end of the prosecution’s case.
 The evidence of the respondent showed that she was staying at the Condo with Vincent; she was made to believe by Vincent that the boxes inside the room contained dates fruit; and, she had no knowledge about the drugs hidden on top of the ceiling inside the bathroom.
 Apparently, the learned trial judge found that the evidence of the respondent were sufficient to raise a reasonable doubt upon the whole of the prosecution case. With due respect, we disagree.
 Firstly, for reasons we have stated above, we found that the learned trial judge was wrong to make the inference that the said drugs had been tampered with by SP12 and his team. Based on the evidence before us, we found that there was no reason for us to doubt the identity of the drugs in this case. There is no break in the movement or the handling or the custody of the said drugs which amounted to a break in the chain of evidence. The drugs that was seized by SP7 were the same drugs that was analyzed by the chemist and finally found its way in court in evidence.
 Secondly, we found that the learned trial judge was wrong to hold that the prosecution must prove that the respondent must have ‘exclusive access’ to the Condo before the respondent could be found to have had possession of the drugs under s.37(d) of the DDA. We found that there were sufficient evidence to find that the respondent had custody and control of the premise where the drugs were found and thus presumed to have possession of the drugs under the provision of s.37(d) of the DDA. We further found that, based on the evidence before us, the respondent had failed to rebut the presumption merely by denying that she had knowledge about the drugs. It is most preposterous to suggest that all and sundry had free access into the said Condo and enjoyed great liberty to dump such a huge amount of drugs into the said room at will without the respondent’s knowledge. It is her own abode. She lived there. The rooms where the drugs were found were not locked. She must have known what went on in her own abode. To suggest otherwise simply makes no complete sense.
 Thirdly, we found that the learned trial judge was wrong to find that the respondent had succeeded to raise a reasonable doubt in respect of the finding of direct trafficking under s.2 of the DDA. At the end of the prosecution’s case, the learned trial judge found that a prima facie case of direct trafficking under s.2 of the DDA had been made out by the prosecution based on the fact that the respondent was found to have been keeping the massive amount of the drugs inside the Condo. In our view, the evidence does not only show the respondent’s guilt of ‘keeping’ but also of ‘concealing’ and ‘storing’ the drugs. Thus the onus was on the respondent to negate the finding, which in our view, in all the circumstances of the case the respondent had failed to do so based on her evidence of mere denial of having knowledge of the existence of the said drugs. In addition, there was no evidence offered by the respondent that the drugs were for her own consumption, apparently, having regard to the massive amount of the drugs, to do so would clearly be preposterous and unbelievable.
 Finally, we found that the learned trial judge was wrong to find that there was no evidence to show that the respondent had knowledge about the drugs found inside the Condo. In our view, the fact that the massive amount of drugs were found inside the premises which have been proved to have been occupied by the respondent and that she was alone inside the premises when the drugs were found were sufficient evidence to infer knowledge of the existence of the drugs against the respondent. In addition, the door to the room where the drugs were found was not locked. And, the drugs were simply placed on the floor and on the bed and not hidden out of view. In such event it is preposterous to suggest that the respondent did not know or did not see the drugs being placed in such manner on the floor and on the bed inside the room in her own house. In addition, it was never suggested that the drugs belongs to Vincent. The delivery note further suggested that she was the one importing the boxes of fruits. Apparently, her entire defence hinged on an attempt to shift the blame on Vincent, which in our view fell short of rebutting on a balance of probabilities the prima facie finding, of possession of the said drugs upon her and creating a reasonable upon the findings of trafficking made by the learned trial judge at the end of the prosecution case.
 In the final analysis, we found that the defence had failed to raise any reasonable doubt upon the prosecution’s case and, on the balance of probabilities, had failed to rebut the presumption of possession under s.37(d) of the DDA invoked against the respondent in respect of both of the charges.
 Based on the totality of the evidence before us, we find that there are merits in the appeal lodged by the prosecution against the respondent on both the charges. We therefore set aside both the orders of acquittal and substituted it with an order convicting the respondent upon both the charges levelled against her. Accordingly, we sentenced the respondent to death by hanging by her neck until she is dead on both counts.
DATED: 27th February 2018
AHMADI HAJI ASNAWI
Court of Appeal, Malaysia