780 Malayan Law Journal [2013] 5 MLJ

Phiri Mailesi (Zambian) v Public Prosecutor A

COURT OF APPEAL (PUTRAJAYA) — CRIMINAL APPEAL NO

P-05–311–11 OF 2011
B
APANDI ALI, LINTON ALBERT AND HAMID SULTAN JJCA
16 JULY 2013

Criminal Procedure — Appeal — Appeal against conviction and sentence — Drug

offence — Accused sentenced to death — Whether accused had knowledge — C
Whether judge directed his mind to test in Mat v Public Prosecutor — Dangerous
Drugs Act 1952 s 37(d)
The appellant was arrested at Bayan Lepas Airport, Penang with a bag
containing drugs. The appellant had flown from Maputo, Mozambique to D
Johannesburg, South Africa and from Johannesburg to Hong Kong and from
Hong Kong to Penang, Malaysia and the luggage tag (‘exh P17’) attached to the
bag (‘P5’) bore reference numbers of the flights from Johannesburg to Hong
Kong and to Malaysia as seen in the flight ticket. The appellant’s name was also
found on P17. When the aircraft finally landed at the airport, the appellant E
eventually retrieved P5 and carried it to the scanning machine where the drugs
were detected. The facts as narrated by the prosecution showed that the accused
had presumed possession of the bag and therefore, the drugs hidden inside both
side linings of the bag. Padlock keys to the padlock of P5 were found in her
handbag and it meant that the accused was having custody or control of P5 and F
its contents including the drugs. The High Court found that the appellant had
possession of the bag and the incriminating drugs by virtue of s 37(d) of the
Dangerous Drugs Act 1952 (‘DDA’). The appellant was convicted for the
charge and sentenced to death pursuant to s 39B(1)(a) of the DDA. In the
present appeal against her conviction and sentence, the appellant raised only G
one issue as to knowledge and asserted that she had no knowledge and
complained that the judge did not direct his mind to the test in Mat v Public
Prosecutor [1963] 1 MLJ 263 (‘Mat v Public Prosecutor’).
Held, dismissing the appeal: H
(1) Mat v Public Prosecutor test is not a test per se within our contemporary
jurisprudence in criminal law but a simplistic guide line to magistrates to
explain how to convict or acquit an accused in relation to beyond
reasonable doubt test at the end of the defence case. Subsequent to Mat v
Public Prosecutor, the law had developed in leap and bounds to give I
greater protection to the accused and a more onerous task to the
prosecution to establish its case beyond reasonable doubt at the
prosecution stage as well as the defence stage by introducing the
maximum evaluation test (see para 6).
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 781

A (2) The hallmark of proper judicial assessment and consideration in any

judgment in criminal case would be reflected where the judge had
considered the defence story in the right perspective taking into
consideration where applicable the cases and the statutory defence under
s 53 of the Evidence Act 1950 (see para 8).
B
(3) It is well-settled that it is in the hands of triers of facts to assess the quality
of evidence and to determine whether the evidence on record justifies a
conviction as well as sentence. There was sufficient material to support a
charge for trafficking and the view taken by the trial court on the relevant
issues was a reasonable view of the evidence on record and the court had
C
followed Mohamad Radhi bin Yaakob v Public Prosecutor’s direction and
rightly applied the maximum evaluation and beyond reasonable test (see
para 12).

[Bahasa Malaysia summary

D
Perayu ditangkap di Lapangan Terbang Bayan Lepas, Pulau Pinang dengan beg
yang mengandungi dadah. Perayu telah terbang dari Maputo, Mozambique ke
Johannesburg, Afrika Selatan dan dari Johannesburg ke Hong Kong dan dari
Hong Kong ke Pulau Pinang, Malaysia dan teg bagasi (‘eksh P17’) yang terikat
E di beg (‘P5’) menunjukkan rujukan nombor penerbangan-penerbangan dari
Johannesburg ke Hong Kong dan ke Malaysia seperti yang dapat dilihat di tiket
penerbangan. Nama perayu juga didapati di atas P17. Apabila kapal terbang
akhirnya mendarat di lapangan terbang, perayu akhirnya mengambil P5 dan
membawanya ke mesin pengimbas di mana dadah tersebut dikesan. Fakta
F seperti yang dinyatakan oleh pihak pendakwaan menunjukkan bahawa
tertuduh telah dianggap memiliki beg dan oleh itu, dadah yang disembunyikan
dalam bahagian kedua-dua belah lapisan beg. Kunci-kunci mangga kepada
mangga P5 diperolehi daripada beg tangannya dan ini bermaksud bahawa
tertuduh mempunyai jagaan atau kawalan terhadap P5 dan kandungannya
G termasuk dadah. Mahkamah Tinggi mendapati bahawa perayu mempunyai
milikan terhadap beg dan dadah tersebut berdasarkan s 37(d) Akta Dadah
Berbahaya 1952 (‘ADB’). Perayu disabitkan untuk tuduhan dan dihukum mati
berikutan s 39B(1)(a) ADB. Dalam rayuan ini terhadap sabitan dan hukuman,
perayu membangkitkan hanya satu isu terhadap pengetahuan dan menegaskan
H bahawa dia tidak mempunyai pengetahuan dan mengadu bahawa hakim
tersebut tidak mengarahkan mindanya kepada ujian dalam kes Mat v Public
Prosecutor [1963] 1 MLJ 263 (‘Mat v Public Prosecutor’).

Diputuskan, menolak rayuan:

I (1) Ujian dalam kes Mat v Public Prosecutor bukan ujian itu sendiri dalam
jurisprudens semasa dalam undang-undang jenayah tetapi garis panduan
mudah kepada majistret untuk menjelaskan bagaimana untuk menyabit
atau melepaskan tertuduh berkaitan ujian melampaui keraguan
munasabah di akhir ke pembelaan. Selepas kes Mat v Public Prosecutor,
782 Malayan Law Journal [2013] 5 MLJ

undang-undang telah berkembang dengan pesatnya untuk memberi A

perlindungan yang besar kepada tertuduh dan tugas yang lebih berat
kepada pihak pendakwaan untuk membuktikan kesnya melampaui
keraguan munasabah pada peringkat pendakwaan dan juga pada
peringkat pembelaan dengan memperkenalkan ujian penilaian maksima
(lihat perenggan 6). B

(2) Ciri betul penilaian kehakiman dan pertimbangan dalam apa-apa

penghakiman dalam kes jenayah akan dapat dilihat di mana hakim telah
mempertimbangkan kes pembelaan dalam perspektif yang betul dengan
mengambil kira di mana kes-kes terpakai dan pembelaan statutori di C
bawah s 53 Akta Keterangan 1950 (lihat perenggan 8).
(3) Adalah nyata bahawa ia adalah atas pembicara fakta untuk menilai kualiti
keterangan dan untuk menentukan sama ada keterangan dalam rekod
menjustifikasikan sabitan dan juga hukuman. Terdapat material yang D
mencukupi untuk menyokong tuduhan mengedar dadah dan
pandangan yang diambil oleh mahkamah perbicaraan atas is-isu relevan
adalah pandangan munasabah terhadap keterangan dalam rekod dan
mahkamah mengikuti arahan kes Mohamad Radhi bin Yaakob v Public
Prosecutor dan menggunapakai dengan betul penilaian maksima dan E
ujian melampaui munasabah (lihat perenggan 12).]

Notes
For cases on appeal against conviction and sentence, see 5(1) Mallal’s Digest
(4th Ed, 2012 Reissue) paras 216–222. F

Cases referred to
Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209, FC (refd)
Balachandran v PP [2005] 2 MLJ 301, FC (refd)
G
Looi Kow Chai & Anor v PP [2003] 2 MLJ 65, CA (refd)
Mat v PP [1963] 1 MLJ 263; [1963] 1 LNS 82 (refd)
Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169; [1991] 1 CLJ (Rep) 311,
SC (folld)
Munuswamy Sundar Raj v PP [2013] 5 MLJ 48; [2013] 1 LNS 183, CA (refd) H
PP v Mohd Aszzid Abdullah [2008] 1 MLJ 281, HC (refd)
PP v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393, FC
PP v Thenegaran a/l Murugan [2013] 3 MLJ 328, CA (refd)
Rozmi bin Yusof v PP [2013] 5 MLJ 66; [2013] 4 CLJ 384, CA (refd) I
Sochima Okoye v PP [1995] 1 MLJ 538, CA (refd)
Tong Kam Yew & Anor v PP [2013] 4 MLJ 888; [2013] 3 AMR 248, CA (refd)
Woolmington v The Director of Public Prosecutions [1935] AC 462, HL (refd)
Zulkifli bin Md Rodzi v PP [2013] 3 MLJ 745; [2013] 4 CLJ 250, CA (refd)
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 783

A Legislation referred to
Criminal Procedure Code s 51A
Dangerous Drugs Act 1952 ss 37(d), 39B(1)(a)
Evidence Act 1950 s 53
B Appeal from: Suit No 45–34 of 2011 (High Court, Pulau Pinang)
Yagoo Subramaniam (Yagoo & Associates) for the appellant.
Mohamad Abazafree bin Mohd Abbas (Deputy Public Prosecutor, Attorney
General’s Chambers) for the respondent.
C
Hamid Sultan JCA (delivering judgment of the court):

[1] The appellant’s appeal against conviction and sentence of death pursuant
D to s 39B(1)(a) of the Dangerous Drugs Act 1952 (‘DDA’) came up for hearing
on 23 April 2013 and on the same day we heard the appeal and dismissed the
same. My learned brothers Mohamed Apandi bin Hj Ali JCA and Linton
Albert JCA have approved the draft judgment. This is our judgment.

E [2] The accused was charged under s 39B(1)(a) which reads as follows:
Bahawa kamu pada 8 Disember 2010, lebih kurang jam 7.30 malam, di Balai
Ketibaan Lapangan Terbang Antarabangsa Pulau Pinang, di dalam daerah Barat
Daya, di dalam negeri Pulau Pinang telah didapati mengedar dadah berbahaya iaitu
Methamphetamine, seberat 770.2 gram dan dengan itu kamu telah melakukan satu
F kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh
dihukum di bawah Seksyen 39(B)(2) Akta yang sama.

The English translation of the charge will read as follows:

G That you on 8 December 2010, at about 7.30 p m at the Arrival Hall, Penang
International Airport, in the Barat Daya district, in the state of Penang was found
trafficking in dangerous drug Methamphetamine, weighing 770.2 grams, thereby
committing an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952
(DDA) punishable under section 39(B)(2) of the same Act.
H
[3] In the instant case the learned trial judge in his 31 page judgment had
gone through the facts and law and we do not wish to repeat the same save
where it is necessary.

I [4] The appellant has raised eight grounds of appeal which almost overlaps
with one another. One of the issues raised in the grounds is a complaint that the
learned trial judge had misdirected himself relating to Mat v Public Prosecutor
[1963] 1 MLJ 263; [1963] 1 LNS 82 test which has been advocated in many
cases (see Mohamad Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169;
784 Malayan Law Journal [2013] 5 MLJ

[1991] 1 CLJ (Rep) 311). On the date of the trial the petition of appeal filed in A
Bahasa Malaysia, inter alia, reads as follows:

(1) Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah terkhilaf dari
segi undang-undang dan fakta apabila membuat satu keputusan yang
bertentangan dengan fakta. B
(2) Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah terkhilaf dari
segi undang-undang dan fakta apabila membuat adverse inferen terhadap
tertuduh yang telah memudaratkan tertuduh.
(3) Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah terkhilaf dari C
segi undang-undang dan fakta apabila gagal untuk mengambil kira
pembelaan tertuduh mengikut prinsip Mat v PP yang jelas menunjukkan
satu salah arah yang telah mengakibatkan satu ‘miscarriage of justice’.
(4) Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah terkhilaf dari
segi undang-undang dan fakta apabila gagal mengambilkira inferen yang D
berpihak kepada tertuduh yang telah mengakibatkan satu ‘miscarriage of
justice’.
(5) Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah mengambilkira
perkara yang tidak relevan dalam membuat keputusan tersebut yang jelas
telah melakukan satu ‘miscarriage of justice’ kepada tertuduh. E
(6) Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah gagal untuk
mengambilkira tentang pecahan dalam rantaian eksibit yang mana jika
diambilkira, tertuduh akan dilepaskan dan dibebaskan.
(7) Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah terkhilaf dari
segi undang-undang apabila memanggil tetuduh untuk membela diri F
secara salah dari segi undang-undang.
(8) Berpandukan kepada fakta-fakta di atas serta OKT adalah seorang
penghidap HIV (tahap 4), pohon rayuan untuk dibenarkan dan
keputusan Mahkamah Tinggi diketepikan.
G
If it is translated in English it will read as follows:
(1) The learned High Court Judge erred in law and fact in making a finding
contradictory to facts.
(2) The learned High Court Judge erred in law by invoking adverse inference H
detrimental to the appellant.
(3) The learned High Court Judge erred in law in failing to consider the
appellant’s defence based on the principle of Mat v PP leading to a
misdirection causing miscarriage of justice.
I
(4) The learned High Court Judge erred in law in failing to adopt the
inference favourable to the appellant causing miscarriage of justice.
(5) The learned High Court Judge erred in law by taking into account
irrelevant facts in making a decision which caused miscarriage of justice.
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 785

A (6) The learned High Court Judge failed to take into account the break in the
chain of evidence, which otherwise would lead to the appellant’s acquittal
and discharge.
(7) The learned High Court Judge erred in law by calling the appellant to
enter his defence which was wrong in law.
B
(8) Based on the above facts and the fact that the appellant is suffering from
HIV (stage 4), pray for the appeal be allowed and the decision of the High
Court be set aside.

C [5] Before us learned counsel for the appellant raised only one issue as to
knowledge and asserted that the accused had no knowledge and complains that
the judge did not direct his mind to the test in Mat v Public Prosecutor.

THE JURISPRUDENCE RELATING TO MAT v PUBLIC

D PROSECUTOR

[6] Before we deal with the facts and issues, we would like to point out that
Mat v Public Prosecutor test is not a test per se within our contemporary
E jurisprudence in criminal law but a simplistic guide line to magistrates to
explain how to convict or acquit an accused in relation to beyond reasonable
doubt test at the end of the defence case. Subsequent to Mat v Public Prosecutor
the law has developed in leap and bounds to give greater protection to the
accused and a more onerous task to the prosecution to establish its case beyond
F reasonable doubt at the prosecution stage as well as the defence stage by
introducing the maximum evaluation test as alluded in Balachandran v Public
Prosecutor [2005] 2 MLJ 301 case and also an obligation to rebut the defence
story if it has been placed at the earliest opportunity as alluded in Alcontara a/l
Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209. And where the defence
G complains that the accused is innocent or innocent carrier the defence is
required to place sufficient notice (Alcontara Notice) to the prosecution and
where appropriate raise the statutory defence provided for the accused in s 53
of the Evidence Act 1950 as alluded in the recent Court of Appeal decision in
Rozmi bin Yusof v Public Prosecutor [2013] 5 MLJ 66; [2013] 4 CLJ 384 to give
H probative force to the defence version. And finally the judge has to follow
Radhi’s direction in all aspect and deal with the prosecution case and its burden
and contrast with the defence story however weak it may be and acquit the
accused if a doubt arises in the mind of the judge notwithstanding in drug cases
where defence is called to rebut trafficking and to do so the defence has to
I satisfy on the balance of probabilities as alluded by Sochima’s case. We will
adumbrate on the cases and principles further as follows:
(a) at common law that too where trial was by jury it was well established that
it was for the prosecution to prove the case beyond reasonable doubt at
every stage of the proceedings to press for conviction. The locus classicus
786 Malayan Law Journal [2013] 5 MLJ

case and the quote of Lord Sankey in Woolmington v The Director of Public A
Prosecutions [1935] AC 462 is well known in the common law
jurisdiction. The said case as well as the common law position inclusive of
other relevant cases to reflect the contemporary position to some extent
has been adumbrated by Hamid Sultan Abu Backer JC (as he then was)
in Public Prosecutor v Mohd Aszzid Abdullah [2008] 1 MLJ 281, and we B
do not wish to repeat save to reproduce that part in relation to
Woolmington case which reads as follows:

[14] In Woolmington v Deputy Public Prosecutor [1935] AC 462, the facts were
that Woolmington was charged with murder. The trial judge directed the jury C
that once the prosecution had proved the killing, they should presume it to be
murder unless the defendant proved facts justifying a verdict of manslaughter
or an acquittal on the ground of accident. The defendant appealed to the
House of Lords arguing misdirection on the burden of proof. The appeal was
successful and the conviction was quashed. It was decided that: D
In a trial for murder the Crown must prove death as the result of a
voluntary act of the prisoner and malice of the prisoner. When evidence of
death and malice has been given, the prisoner is entitled to show by
evidence or by examination of the circumstances adduced by the Crown
that the act on his part which caused death was either unintentional or E
provoked. If the jury are either satisfied with his explanation or, upon a
review of all the evidence, are left in reasonable doubt whether, even if his
explanation be not accepted, the act was unintentional or provoked, the
prisoner is entitled to be acquitted.
F
Lord Sankey LC observed:

If at any period of trial it was permissible for the judge to rule that the
prosecution had established its case, and that the onus was shifted on the
prisoner to prove that he was not guilty and that unless he discharged that
G
onus the prosecution was entitled to succeed, it would be enabling the
judge in such a case to say that the jury must in law find the prisoner guilty
and so make the judge decide the case, and not the jury, which is not the
Common Law. It would be an entirely different case from those
exceptional instances of special verdicts where a judge asks the jury to find
certain facts and directs them that on such facts the prosecution is entitled H
to succeed. Indeed, a consideration of such special verdicts shows that it is
not till the end of the evidence that a verdict can properly be found and that
at the end of the evidence it is not for the prisoner to establish his
innocence but for the prosecution to establish his guilt. Just as there is
evidence on behalf of the prosecution so there may be evidence on behalf I
of the prisoner, which may cause a doubt as to his guilt. In either case, he
is entitled to the benefit of the doubt. But while the prosecution must
prove the guilt of the prisoner, there is no such burden laid on the prisoner
to prove his innocence and it is sufficient for him to raise a doubt as to his
guilt; he is not bound to satisfy the jury of his innocence …
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 787

A Throughout the web of the English criminal law, one golden thread is
always to be seen, that it is the duty of the prosecution to prove the
prisoner’s guilt … No matter what the charge matter what the or where the
trial, the principle that the prosecution must prove the guilt of the prisoner
is part of the common law of England and no attempt to whittle it down
can be entertained. (Emphasis added.)
B

(b) the Woolmington’s case was distinguished by the Privy Council. In Public
Prosecutor v Yuvaraj [1969] 2 MLJ 89 (PC), the Privy Council in relation
to the burden of proof as per the statute had this to say:
C
Wolmington v Deputy Public Prosecutor is not in Their Lordships’ view
germane to the present appeal. It was concerned with an offence at common
law, not with an offence as to which there is an express statutory provision
altering the ordinary onus of proof which in a criminal case lies upon the
prosecution and imposing upon the defendant the burden of proving the
D existence or non-existence of a particular fact by way of defence.
In essence, Woolmington test will not apply where there is an express
statutory provision altering the ordinary onus of proof. That is to say at
common law where Woolmington test applies the defence can practically
E rest with the laurels and wait for the prosecution to prove their case
beyond reasonable doubt if the defence story is that the accused is
innocent. However, the Malaysian position is not the same whether
Woolmington test applies or not as the defence need to be proactive and
place their defence at the earliest opportunity and give Alcontara Notice
F where applicable and put the defence case at the prosecution stage itself
and where defence is called lead evidence at least through the accused to
create some doubt in the mind of the judge relating to the prosecution
case;
(c) in Mat v Public Prosecutor [1963] 1 MLJ 263 Suffian J (as His Lordship
G then was) gave some guidelines relating to Woolmington test to
magistrates that too to deal with the burden at the end of the defence case.
His Lordship’s lucid guideline of Woolmington test reads as follows:
The correct law for magistrates to apply is as follows. If you accept the
H explanation given by or on behalf of the accused, you must of course acquit.
But this does not entitle you to convict if you do not believe that explanation,
for he is still entitled to an acquittal if it raises in your mind a reasonable doubt
as to his guilt, as the onus of proving his guilt lies throughout on the
prosecution. If upon the whole evidence you are left in a real state of doubt,
the prosecution has failed to satisfy the onus of proof which lies upon it.
I
The position may be conveniently stated as follows:-

(a) If you are satisfied beyond reasonable doubt as to the Convict.

accused’s guilt
788 Malayan Law Journal [2013] 5 MLJ

A
(b) If you accept or believe the accused’s explanation Acquit.
(c) If you do not accept or believe the accused’s explanation Do not convict
but consider the
next steps
below.
(d) If you do not accept or believe the accused’s explanation Convict. B
and that explanation does not raise in your mind a
reasonable doubt as to his guilt
(e) If you do not accept or believe the accused’s explanation Acquit.
but nevertheless it raises in your mind a reasonable doubt
as to his guilt
C
Magistrates would assist the appellate court if they indicate in their grounds
that they are aware of the tests laid down in steps (d) and (e) above.
It is pertinent to note that this guideline is no more comprehensive in
view of Alcontara Notice (see also s 51A of the CPC Notice), and
Balachandran’s case relating to maximum evaluation and Radhi’s D
direction which must be followed by magistrates or judges which taken as
a whole gives greater protection to the accused. In essence, the guideline
in Mat v Public Prosecutor has lost its useful purpose and the learned
counsel’s complaint that Mat v Public Prosecutor guidelines were not
followed strictly by the learned judge only shows that development of law E
has not been fully appreciated in the right perspective. If at all there is a
complaint it must be based on the fact that Alcontara Notice was not
properly considered by the judge or maximum evaluation test was not
adhered to by the judge or Radhi’s direction was not strictly followed by
the judge or the statutory defence for innocent person under s 53 of the F
EA 1950 was not properly considered by the judge or combination of
some or all. It is not sufficient for the grounds of memorandum of appeal
to be in length but it must be in substance to demonstrate that it is not a
safe decision to convict, (see Public Prosecutor v Thenegaran a/l Murugan
[2013] 3 MLJ 328); G
(d) the case of Mat v Public Prosecutor does not discuss maximum evaluation
or ‘Alcontra Notice’ etc. It is now trite that the judge must at the end of
the prosecution case apply the maximum evaluation test (positive
evaluation) before ruling that a prima facie case has been established by
the prosecution to warrant the defence to be called. In Public Prosecutor v H
Mohd Aszzid Abdullah [2008] 1 MLJ 281 the court has summarised the
maximum evaluation test as propounded by the Federal Court in
Balachandran v Public Prosecutor [2005] 2 MLJ 301. That part of the
judgment reads as follows:
I
[25] Now in Balachandran, the learned judge of the Federal Court has clearly
set out the test for prima facie and I hereby summarise what was said for the
benefit of the adjudicators in subordinate courts as follows:

(i) A prima facie case is established where there is sufficient evidence to

 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 789

A be called upon to answer and evidence adduced by the prosecution

must be such that it can only be overthrown upon hearing evidence
in rebuttal by the defence to the prosecution case.
(ii) The force of the evidence adduced must be such that, if unrebutted,
it is sufficient to induce the court to believe in the existence of the
B facts stated in the charge or to consider its existence so probable that
a prudent man ought to act upon the supposition that those facts
that exist did not happen (see definition of ‘facts’, ‘facts in issue’ and
‘proved’ in s 3 of the EA 1950 — to be read with ss 101–103 of the
EA 1950).
C
(iii) A prima facie case is not made out if there is no material evidence
which can be believed in the sense as described earlier, (see definition
of ‘disproved’ and ‘not proved’ in s 3 of the EA 1950).
(iv) To make a finding either way, the court must at the close of the
D prosecution case, undertake a positive evaluation of the credibility
and reliability of all the evidence adduced so as to determine whether
the elements of the offences have been established.
(v) Once a prima facie case is established and the accused elects to
remain silent, he must be convicted. The test at the close of the
E prosecution case would therefore be: Is the evidence sufficient to
convict the accused if he elects to remain silent? This must, as of
necessity, require a consideration of the existence of any reasonable
doubt in the case for the prosecution. If there is any such doubt there
can be no prima facie case.
F (vi) As the accused can be convicted on the prima facie evidence, it must
have reached a standard which is capable of supporting a conviction
beyond reasonable doubt.

Further, the learned judge of the Federal Court opined that:

G As the accused can be convicted on the prima facie evidence it must have
reached a standard which is capable of supporting a conviction beyond
reasonable doubt. However it must be observed that it cannot, at that
stage, be properly described as a case that has been proved beyond
reasonable doubt. Proof beyond reasonable doubt involves two aspects.
H While one is the legal burden on the prosecution to prove its case beyond
reasonable doubt the other is the evidential burden on the accused to raise
a reasonable doubt. Both these burdens can only fully discharged at the end
of the whole case when the defence has closed its case. Therefore a case can
be said to have been proved beyond reasonable doubt only at the
conclusion of the trial upon a consideration of all the evidence adduced as
I
provided by s 182A(1) of the Criminal Procedure Code. That would
normally be the position where the accused has given evidence. However,
where the accused remains silent there will be no necessity to re-evaluate
the evidence in order to determine whether there is a reasonable doubt in
the absence of any further evidence for such a consideration. The prima
790 Malayan Law Journal [2013] 5 MLJ

facie evidence which was capable of supporting a conviction beyond A

reasonable doubt will constitute proof beyond reasonable doubt.
It follows that the submission of learned counsel that the burden on the
prosecution at the close of its case is to make out a case which is beyond
reasonable doubt and not on a prima facie basis is contrary to the clear and
plain language of ss 180 and 182A. It cannot therefore be sustained. B

(e) further at the prosecution stage or defence stage, before applying the
maximum evaluation the trial judge has to consider the defence
complaint or statement or version according to the stage of proceedings. C
In addition if ‘Alcontara Notice’ has been given to the prosecution at the
earliest opportunity then onus will be placed on the prosecution to
disprove the accused version. In Alcontara a/l Ambross Anthony v Public
Prosecutor [1996] 1 MLJ 209, Edgar Joseph JR FCJ had this to say:
D
To resume our discussion regarding the important point of misdirection as
regard the burden of proof, especially the burden on the defence, we must
point out, with respect, that it was wrong for the judge to have criticised the
defence for having failed to put to the investigating officer, the name of Che
Mat, or the latter’s telephone number or his place of abode, for the simple E
reason that these particulars had been disclosed in the cautioned statement of
the appellant made the day after his arrest so that the police had all the time
in the world to check their veracity. That being the case, the onus was on the
prosecution to check on whether the appellant’s version of the facts, as they
appeared in his cautioned statement and to which we have referred, was true
or false. In other words, the onus was upon the prosecution to disprove this F
important part of the appellant’s version of the facts. The defence were,
therefore, under no duty to put the matters aforesaid to the investigating
officer, having regard to their prior disclosure in the cautioned statement. In
holding to the contrary, the judge had undoubtedly overlooked the material
portions of the cautioned statement touching on Che Mat, reversed the onus, G
and placed it on the defence, so that on this further ground also, the
conviction had to be quashed.
It is pertinent to note that the ‘Alcontara Notice’ must have sufficient
particulars in the right perspective and not a vague notice where the
prosecution will not be able to advance their investigation to rebut the H
defence story or version. It must also be given at the earliest opportunity
at the material time of the arrest or at least upon counsel taking
instruction from the accused to conduct its defence. In addition the
defence’s version should be put at the prosecution stage and the story
must be maintained at the defence stage. There will be a duty placed on I
the judge even at the prosecution stage to positively evaluate the story of
the accused relating to ‘Alcontara Notice’ before evaluating the
prosecution case and applying the maximum evaluation as Alcontara case
places the onus on the prosecution to rebut or sufficiently explain that
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 791

A they have discharged that onus. In the instant case evidence will show
that the defence has not given an ‘Alcontara Notice’ in the right
perspective; and
(f ) the trial judge must strictly follow the Radhi’s direction both at the
prosecution as well as the defence case. The distinction between the
B
common law and the contemporary position relating to Radhi’s direction
has been captured in Public Prosecutor v Mohd Aszzid Abdullah which
reads as follows:
[9] In Malaysia the two stages of the criminal proceedings is captured in
C s 173(f ) of the CPC for trial before the subordinate courts and s 180 for trials
before the High Court. There is a distinction in contrast with England. In
England, the defence has an option to submit no case to answer, failing which
the accused may give evidence or refuse to do so and it is for the jury to decide
whether the prosecution has proven the case beyond reasonable doubt. The
D jury does not decide this issue at the prosecution stage. The fact that the jury
only decides at the second stage and not the first stage is one important
distinction. Under the CPC, there is a statutory duty for the prosecution to
establish a prima facie case before the court is obliged to call for the defence.
That is not the position in England. Thus, it will appear that there is a greater
statutory protection given to the accused here, in contrast to England. The
E courts have on various occasions asserted that legal burden entrusted on the
prosecution by statute at the first stage must be discharged according to the
required standard of proof that being beyond reasonable doubt and nothing
less (now it is subject to the test and caveat expounded by the Federal Court
in Balachandran). In consequence, and because the position in England is not
F the same, there is a veritable explosion of cases in this area of law trying to
explain the concept in various manner, which the prosecution in this case has
attempted to highlight without giving any conclusive submission as to what is
prima facie case, notwithstanding the clear guidance shown by Augustine
Paul FCJ in the case of Balachandran and similar views were expressed by
Gopal Sri Ram JCA in Looi Kow Chai & Anor v Public Prosecutor [2003] 2
G MLJ 65 and also whilst sitting in the Federal Court in the case of Public
Prosecutor v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393 where the learned
judge opined:

For the guidance of the courts below, we summarise as follows the steps
H that should be taken by a trial court at the close of the prosecution’s case:

(i) the close of the prosecution’s case, subject the evidence led by the
prosecution in its totality to a maximum evaluation. Carefully
scrutinise the credibility of each of the prosecution’s witnesses. Take
into account all reasonable inferences that may be drawn from that
I evidence. If the evidence admits of two or more inferences, then draw
the inference that is most favourable to the accused;
(ii) ask yourself the question: If I now call upon the accused to make his
defence and he elects to remain silent am I prepared to convict him
on the evidence now before me? If the answer to that question is ‘Yes’,
792 Malayan Law Journal [2013] 5 MLJ

then a prima facie case has been made out and the defence should be A
called. If the answer is ‘No’ then, a prima facie case has not been
made out and the accused should be acquitted;
(iii) after the defence is called, the accused elects to remain silent, then
convict;
B
(iv) after defence is called, the accused elects to give evidence, then go
through the steps set out in Mat v Public Prosecutor [1963] MLJ 263.

[7] As stated above over the years the courts have departed from the common C
law position and have placed greater onus on the prosecution to prove its case
and placed only a very light threshold not even evidence or burden, to create a
doubt in the judge’s mind for warranting an acquittal. In Sochima Okoye v
Public Prosecutor [1995] 1 MLJ 538, Gopal Sri Ram JCA (as he then was) has
D
asserted that as long as the defence story is not inherently incredible, it must be
considered by the judge and tested with the prosecution case and if it creates a
doubt in the mind of the judge then the judge has no option but to acquit.
(Emphasis added.) (See Woolmington v The Director of Public Prosecutions
[1935] AC 462). Even if the story is hearsay the judge must consider and E
deliberate on the judgment without criticising the defence case as asserted in
the case of Alcontara.

[8] In essence the hallmark of proper judicial assessment and consideration

in any judgment in criminal case will be reflected where the judge has F
considered the defence story in the right perspective taking into consideration
where applicable the cases which we have alluded to above inclusive of the
Alcontara Notice and the statutory defence under s 53. This panel has dealt
with all stated above in piece meal or composite basis in a number of
judgments; to name a few are as follows: (a) Munuswamy Sundar Raj v Public G
Prosecutor [2013] 5 MLJ 48; [2013] 1 LNS 183; (b) Zulkifli bin Md Rodzi v
Public Prosecutor [2013] 3 MLJ 745; [2013] 4 CLJ 250; (c) Rozmi bin Yusof v
Public Prosecutor [2013] 5 MLJ 66; [2013] 4 CLJ 384; (d) Tong Kam Yew &
Anor v Public Prosecutor [2013] 4 MLJ 888; [2013] 3 AMR 248 and needs no
repetition. H

THE BRIEF FACTS

[9] The appellant was arrested at Penang Bayan Lepas Airport with the bag
containing the drugs. The drugs were recovered from the bag in the presence of I
the custom officers. As to the issue of knowledge, the appellant complaints that
the learned judge has not given proper consideration not only to the issue but
also other issues that were raised at the prosecution stage itself. The judgment
of the learned trial judge from pp 21–27 deals with the relevant issues
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 793

A complained of quite comprehensively and much judicial time will be saved if it

is repeated in extenso. That part of the judgment reads as follows:
The conduct of the accused in appearing restless and uttering ‘Oh, my God!’ and
cried when the drugs were discovered and shown to her by PW7 shows that the
accused knew about the drugs inside the bag.
B
Any innocent person at this point when being confronted with such a serious
accusation would have uttered like the accused but as a sane and reasonable person
he or she would have gone a step further by protesting his or her innocence and
giving an explanation on how he or she did not know at all about the presence of the
drugs concealed inside the bag. This would inevitably entail on how he or she came
C to get hold of the bag and give details on the person who had access to the bag and
might be the culprit who hid the drugs inside the bag or any point of time where
someone unknown to her who might have the opportunity to do so. However the
accused in this case did not attempt at all to give such an explanation and when the
bag (P5) was further searched at the Customs Prevention Complex in Seberang
D Perai. Surely by this time whatever confusion that the accused had on her mind
would by then tapered off and she would have regained her composure and be able
to offer such an explanation.

Section 37(d) of the Dangerous Drugs Act 1952 (Act 234)

E On the other hand the court finds that the accused had possession of P5 and the
incriminating drugs by virtue of s 37(d) of Act 234. The accused had flown from
Maputo in Mozambique to Johannesburg, South Africa and from Johannesburg to
Hong Kong and from Hong Kong to Penang, Malaysia and the luggage tag (exh
P17) attached to the maroon bag (P5) bears the reference numbers of the flights
from Johannesburg to Hong Kong and to Malaysia as seen in the flight ticket. The
F accused’s name is also found on P17.
When the aircraft finally landed at the Penang Bayan Lepas International Airport,
the accused eventually retrieved P5 and carried it to the scanning machine where the
drugs were detected.
The facts as narrated by the prosecution show that the accused had presumed
G
possession of the bag and therefore the drugs hidden inside both side linings of the
bag. By keeping the padlock keys to the padlock of P 5 in her handbag it means that
the accused was having custody or control of the maroon bag and its contents
including the drugs.
In Chan Pean Leon v Public Prosecutor [1956] 1 LNS 17 Thompson J held:
H
‘Possession’ itself as regards the criminal law is described as follown in Stephen’s
Digest (9th Ed), p 304):
A moveable thing is said to be in the possession of a person when he is so
situated with respect to it that he has the power to deal with it as owner to the
I exclusion of all other persons, and when the circumstances are such that he
may be presumed to intend to do so in case of need.
To put it otherwise, there is a physical element and a mental element which
must both the present before possession is made out. The accused must not
only be so situated that he can deal with the thing as if it belonged to him, for
794 Malayan Law Journal [2013] 5 MLJ

example have it in his pocket or have it lying in front of him on a table. It must A
also be shown that he had the intention of dealing with it as if it belonged to
him should he see any occasion to do so, in other words, that he had some
animus possidendi. Intention is a matter of fact which in the nature of things
cannot be proved by direct evidence. It can only be proved by inference from the
surrounding circumstances. Whether these surrounding circumstances make out B
such intention is a question of fact in each individual case. If a watch is in my
pocket then in the absence of anything else the inference will be clear that I
intend to deal with it as if it were my own and accordingly I am in possession
of it. On the other hand, if it is lying on a table in a room in which I am but
which is also frequently used by other people then the mere fact that I am in
C
physical proximity to it does not give rise to the inference that I intend to deal
with it as if it belonged to me. There must be shows such an intention. Or it
must be clear that the circumstances in which it is found show such an
intention. It may be found in a locked room to which I hold the key or it may be
found in a drawer mixed up with my own belongings or it may be found, as
occurred in a recent case, in a box under my bed. The possible circumstances D
cannot be set out exhaustively and it is impossible to lay down any general rule
on the point. But there must be something in the evidence to satisfy the Court
that the person who is phsically in a position to deal with the thing as his own had
the intention of doing so.
E
Trafficking
The accused was seen by PW5 taking the incriminating maroon bag from the
carousel and carrying it to the scanning machine with it. By virtue of s 2 of Act 234,
the accused by ‘carrying’ the bag containing the hidden drugs was trafficking in F
dangerous drugs. See Public Prosecutor v Abdul Manaf Muhamad Hassan [2006] 2
CLJ 129 (FC) and Teh Geok Hock v Public Prosecutor [1989] 1 CLJ (Rep) 160 (SC).
The amount of drugs being substantial was clearly not meant for personal
consumption.
In Public Prosecutor v Urn Hock Boon [2009] 3 CLJ 471 (FC) per Abdul Aziz G
Mohamad FCJ of the Federal Court held:

The passage from Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705 that the
Court of Appeal relied on in the present case does not, to my understanding, lay
down the principle, to quote the Court of Appeal again, ‘that once the H
prosecution elects to rely on one of the statutory presumptions in s 37 of the Act,
it cannot at a later stage of the trial seek to rely on the very general definition of
s 2 of the Act.’

Power of disposal I
The accused had the padlock keys to the padlock locking the maroon bag and thus
P5 was under her control and she was alone at the material time. The accused knew
the presence of the drugs and the bag (P5) belongs to her, thus she also had the
power of disposal over the drugs concealed inside it.
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 795

A See Public Prosecutor v Salleh Zakaria & Anor [2010] 4 CLJ 671 (CA) on the
meaning of the ‘power of disposal’.

Credibility of the Witnesses

The court finds no reason to doubt the credibility of all the prosecution witnesses.
B They had no axe to grind against the accused as they do not know her at all and were
just carrying out their routine duties when they stumbled on the hidden drugs. In
fact the discovery of the drugs was not even based on information received.

Cautioned Statement (D25)

C The learned defence counsel tendered the purported cautioned statement (D25) of
the accused during his submission which appeared that earlier on he had forgotten
to tender through the investigating office PW10. After reading through the contents
and finding that no prejudice would be caused to the prosecution the court allowed
it to be admissible as defence exhibit. In Public Prosecutor v Lin Lian Chen [1992] 4
D CLJ 2086, the Supreme Court held that an accused had the right to introduce his
cautioned statement during the case for the prosecution.
Nonetheless as the contents of D25 had not been tested through cross examination,
the court does not give much probative value to it.
D25 given by the accused telling that her purpose in coming to Malaysia was to see
E her boyfriend ‘Mike’ in Kuala Lumpur. She also said that George the brother of her
boyfriend gave her the maroon bag in Mozambique as her bag which she was
supposed to bring to Malaysia looked old. The telephone number of her boyfriend
was also recorded in her hand phone.
It is of significance to note that by tendering D25 at this stage the implication is
F which the Supreme Court in the cited Lin Lian Chen had observed:

The reason for the decision was that the statement was that of the respondent
(accused) who had personal knowledge of the facts stated therein and who had
personal knowledge of the facts stated therein and who had authenticated it by
G signing it. In other words it was the respondent who was the author thereof and
who had himself wished it to be admitted, it being acknowledged by him in the
cautioned statement itself that it was made voluntarily after due administration
of the statutory caution.

By tendering the supposed cautioned statement of the accused, it can be likened to

H a two-edged sword which also cut back the accused especially when some parts of the
statement are favourable to the prosecution.
Here as the statement was made of the free accord of the accused, the element of
knowledge, one of the ingredients vital for the offence may also be detected from its
contents.
I
In Question 20 it was asked (taken in verbatim):

Do you check the bag (meaning the maroon bag) he give you?

The accused answered (taken in verbatim):

796 Malayan Law Journal [2013] 5 MLJ

I just open the bag and look inside and parking (meaning ‘packing’) my thing in A
to the bag.

Therefore when the accused was packing her personal belongings inside the bag as
the hidden packets of drugs concealed inside both sides of the bag were not soft but
hard and thick she ought to have felt them with her hands and ought to have known
of their presence. Even assuming for a moment that at that time she did not know B
the exact nature of the contents of the packages, surely any reasonable person would
have pursued the matter and enquired about their contents and in this case she
claimed that George gave the bag to her, she should have asked George about the
contents of the packages. By doing so, she would have known of the drugs. Finding
out is important as she would be bringing the bag to faraway Malaysia as anything C
illegal would have put her into trouble. Self preservation is nature first law of
instinct.

Chemist Evidence
The chemist PW6 had testified that the weight of the methamphetamine seized D
from the accused has exceeded the statutory limit imposed by the Dangerous Drugs
Act 1952 after he had carried out the analysis.
In reply to the argument of the defence, there is no requirement of law in the
Dangerous Drugs Act 1952 (Act 234) that the chemist must take at least 10% of the
total weight of the drug for analysis as decided by the case of Gunalan E
Ramachandran & Ors v Public Prosecutor [2004] 4 CLJ 553 (CA) where Abdul
Hamid Mohamad JCA (as he then was) viewed that the taking of the 10% sample
is a only a practice among the chemists.
In both the Supreme Court cases of Munusamy v Public Prosecutor [1987] 1 MLJ
492 and Public Prosecutor v Lam San [1991] 3 MLJ 426, they held that the evidence F
of the chemist is only confined to the elementary nature and identity of the
substance, thus the court is entitled to accept the evidence at face value unless it is
inherently incredible or the defence calls another chemist to contradict the opinion.
The case of Public Prosecutor v Loo Kia Meng cited by the defence that a minimum
of 10% of the drug must be taken for analysis had been held by the Federal Court G
case in Chu Tak Fai [2006] 4 CLJ 933 that it should not be followed.

Credibility of PW7
There is no law to say that a witness cannot refresh his memory by looking at the
exhibits already tendered and displayed in the open court when the court is not in H
session. The court finds that looking at the overall evidence given by PW7, his
credibility is not in doubt.

Fingerprint Dusting
The absence of finger prints of the accused on the drug exhibits does not affect the I
prosecution case as the court has found that it had proved possession of the drugs
against the accused.
For the reasons aforesaid, the court finds that the prosecution had proved a prima
facie case against the accused and called for her defence.
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 797

A After the three alternatives were explained to her in the presence of the defence
counsel, the accused elected to give her evidence from the witness box.

[10] In addition the learned trial judge has taken the pain to assess the
defence story in meticulous detail and it is found in pp 27–39. The analysis of
B
the accused story reads as follows:
The court believes that ‘George’ exists based on the evidence given by the accused
but whether George did give the accused the incriminating maroon bag (exh P5) at
the airport in Maputo, Mozambique is another issue.
C
The court finds that George the brother of the purported boyfriend called ‘Mike’ of
the accused who according to the accused sent her to the Maputo Airport in
Mozambique as claimed by the accused even assuming if true, did not give her the
new bag (P5) at the airport.

D George had commented that the bag that the accused was supposed to bring over to
Malaysia was too old and torn and that he had wanted to replace it with a new bag in
his car. The story is not logical because in the first place when George went to her
residence to fetch the accused to the airport, surely at one point in time or another
he ought to have seen the bag that the accused was bringing along whether in her
residence or when she was carrying it into his car.
E
There and then on seeing the sorry state of her bag as claimed when George already
had the new bag in his car, he would have instantly asked the accused to change her
bag. To change the bag at her home would be more pragmatic, bearing in mind that
the accused needed to repack her personal belongings into the bag. To change the
bag at the eleventh hour which entailed repacking of the personal belongings of the
F accused when she was about to scan her bag at the airport would have wasted
precious time and not practical.
The story is also not convincing as the accused was going to embark on a long haul
flight to Malaysia which is far away from Mozambique or Zambia and thus no
ordinary and sane person would have packed his or her personal belongings into
G such a bag which common sense dictates might not be ‘structurally’ strong enough
to contain all her things including clothes. A seasoned traveller like the accused who
had been to Pakistan, Nairobi, Zimbabwe Mozambique and Malaysia would have
definitely known that luggage are sometimes being handled roughly when they are
loaded onto the aircraft and being unloaded besides having heavier luggage stacked
H on top of one another. In such a situation, the old and torn bag would probably be
more torn and not be able to hold all her things.
To buy a new travelling bag would have not cost a fortune and the accused had with
her US$1,100 when she was arrested in Penang.

I Material Contradictions
In her cautioned statement (D25) which the accused tendered as her defence exhibit
of her own accord, the accused did not state that George gave her the bag at the
airport in Maputo, what is more, the accused said in D25 that after George had
given the bag to her, she just opened the bag and looked inside and packed her things
798 Malayan Law Journal [2013] 5 MLJ

into the bag. In her testimony in court, the accused said that George repacked her A
personal belongings into the new bag and gave it to her at the airport.
In reality, the court views that no such bag was given to her by George.
Moreover the accused gave evidence that George gave her the three padlock keys but
in D25, she did not mention this fact at all. The failure to do so goes to her
credibility. B

Mike
The court opines that ‘Mike’ the man who is supposed to be the boyfriend of the
accused and whom the accused flew here to meet up with him does not exist. The
accused had testified that she had known Mike, a Nigerian for more than three years C
yet apart from saying that his hand phone number had been recorded in her hand
phone, she could not give any more details. She said that Mike is a student in Kuala
Lumpur however the accused could not even tell what course was ‘Mike’ studying
and in which college in Kuala Lumpur.
At least she could have given details of Mike’s background in Nigeria like his home D
address, his siblings and parents and his close friends yet none of such details were
forthcoming.

Knowledge
By packing her personal belongings into the bag (P25) in all likelihood the accused E
would have felt the two plastic packages of drugs C(1)(a)37, P9B1 and C(1)(a)38,
P9B2 being hidden inside the two sides on the bag as the packages were not flat but
thick and bulging.
After feeling their presence, any reasonable person would have taken steps to find
out the nature of the things being hidden. F
Drugs Planted
The defence learned counsel not only submitted that the maroon bag did not belong
to the accused contrary to the evidence of the accused herself who said that the bag is her
bag but he also alleged that the drugs were planted and concealed inside the bag. G
This allegation gives rise to the question that who would be the person with motive
to frame up the accused. The accused did not lead any evidence to say that she
believes somebody she knows harbours such an intention.
Uttering ‘Oh, my God!’
The accused claimed that after the drugs were being discovered, a male officer H
carrying a pair of handcuff came to her and told her ‘I am going to arrest you for
carrying drugs’ and in the midst of saying those words, he began to handcuff the
accused making the accused blurted ‘Oh, my God!’ and to cry.
The court finds the version of the prosecution more reasonable that upon the
discovery of the drugs and being shown to the accused, she uttered ‘Oh, my God!’ I
and began to cry.
The court finds that the accused carried the maroon bag and knew of the presence
of the drugs hidden inside the bag. When being confronted at the Penang Bayan
Lepas International Airport upon the discovery of the drugs concealed inside P5,
 Phiri Mailesi (Zambian) v Public Prosecutor
[2013] 5 MLJ (Hamid Sultan JCA) 799

A never at one moment did the accused did tell the customs officers that it was George
who gave her the bag. Therefore the inference for the court to draw is that the
evidence that George gave her the bag containing the drugs is not true and an
afterthought.
Therefore for the reasons stated here, the court finds that the accused had not cast a
B reasonable doubt on the prosecution case and the prosecution had proved its case
beyond reasonable doubt against the accused.
The court finds the accused guilty of the charge against her and convicted her of the
offence as stated in it. The court then imposed the mandatory death sentence on her.

C
[11] Even though learned counsel for the appellant relied on only issue
relating to ‘knowledge’, we have taken the liberty to go through each and every
ground raised in the petition. We find no merits in the appeal.

D [12] It is well settled that it is in the hands of triers of facts to assess the quality
of evidence and to determine whether the evidence on record justifies a
conviction as well as sentence. We have perused the evidence in detail and we
are satisfied that there is sufficient material to support a charge for trafficking
and the view taken by the trial court on the relevant issues in our view was a
E reasonable view of the evidence on record, and the court had followed Radhi’s
direction and rightly applied the maximum evaluation and beyond reasonable
test.

[13] In the instant case we are satisfied that the conviction is safe and the
F appeal must be dismissed.

[14] We hereby order so.

Appeal dismissed.
G

Reported by Afiq Mohamad Noor