The failure to disclose CCTV footage does not necessarily infringe the right to a fair trial nor invalidate the prosecution's case if possession of drugs is established.

Zabariah Mohd Yusof FCJ:

[1] This is the majority judgment of this court. The appellant, a South African national was charged as follows:

"Bahawa kamu pada 21 Julai 2013, jam lebih kurang 9.00 malam, di Balai Ketibaan, Lapangan Terbang Antarabangsa Langkawi, dalam Negeri Kedah Darul Aman telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 1,598.3 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."

[2] The case went for full trial and the learned Judicial Commissioner (JC) held that the Prosecution had proven a prima facie case against the appellant. The learned JC found that the appellant was in actual possession of the drugs and relied on the presumption under s 37(da) of the Dangerous Drugs Act 1952 ( DDA ) for trafficking.

[3] The court of Appeal affirmed the decision of the learned JC. Dissatisfied, the appellant appealed to the Federal court. Before us the appellant raised two issues, namely the failure by the prosecution during the trial to adduce the CCTV footage outside the airport building on the material date, is fatal to the prosecution's case and the constitutionality of the death sentence imposed on him. This judgment will only deal with the first issue. The issue on the constitutionality of the death sentence will be dealt with in a separate judgment by my learned brother and sister Judges, Azahar Mohamed CJM and Nallini Pathmanathan FCJ.

Background

[4] On 21 July 2013 around 8.00pm, the appellant landed at the Langkawi International Airport (airport) from Johannesburg vide Singapore. The appellant cleared the immigration checkpoint and proceeded to claim his trolley bag (P8) at the baggage carousel at the airport.

[5] At the material time, PW4, a customs officer was on duty operating the scanner machine at the airport. PW4 scanned P8 and the scan showed a bright orange item in it. PW4 instructed the appellant to cut open the blue plastic covering of P8 and requested that he opened P8 which had a combination lock. In doing so, the appellant removed the clothes in P8, revealing a black document bag (P22). P22 was scanned by the same scanning machine and this time the same bright orange item appeared on the scanner machine.

[6] While all these were going on, the appellant walked away towards the airport exit leaving his passport, boarding pass and two handphones at the table by the scanner machine.

[7] Several officers from the enforcement division of the customs department then arrived at the airport, including Mustafa al Bakri bin Wahid (PW7). By that time the appellant was apprehended and was in handcuffs and was sitting down.

[8] PW7 inspected P8 and found a blue plastic wrapper, some clothes and P22. After the inspection, the appellant was then brought to the enforcement office together with P8. At the enforcement office PW7 and several other officers continued to examine P8. PW7 searched the document bag, P22 in the presence of the appellant. There was nothing inside but it was heavy. He inspected the two side walls of P22 and felt that there could be something inside it. The bag and P22 were brought to head office for further search on P22. At the head office, PW7 did a thorough search on P22 in the presence of the appellant. This search led to the discovery of two black rectangle packets (P58A and P58B) in the side walls of P22. These two packets were found to contain crystals substances which upon preliminary testing were found to be methamphetamine. The appellant denied knowing about the impugned drugs when asked by PW7. The appellant allegedly cried when the two packets were found in P22. The items were seized, marked and photographs were duly taken.

[9] PW7 handed over the exhibits to the investigating officer, PW9 on 22 July 2013. PW9 sent P58A and P58B to the Government Chemist, PW3 for analysis and the results showed that the crystalline substances found in P58A and P58B were 804