JUDGMENT

Noor Ruwena Md Nurdin J

Introduction

[1] This grounds of judgment has been prepared in respect of an appeal from the decision of this Court on 16.5.2025 by the Appellant at the High Court Ahmad, Fitry Bin Ahmad Fauzi. Now the Public Prosecutor who is dissatisfied with my decision to convict the said Appellant on a reduced charge of s 6 of the Dangerous Drugs Act 1952 [Act 234] ("the Act") from the original charge of s 6B(1)(a) of the same Act has filed a Notice of Appeal on 28.5.2025. I had sentenced him to 4 years' imprisonment from the date of arrest on 17.7.2020.

[2] The original charge was as follows:

Pertuduhan Pertama

Bahawa kamu pada 17.7.2020 jam lebih kurang 9.15 malam, bertempat di belakang rumah alamat No. 74 Jalan Taiping BT 10 34300 Bagan Serai, dalam daerah Kerian, dalam negeri Perak bagi pihak diri kamu telah menanam tumbuhan jenis cannabis dari mana cannabis boleh diperolehi secara langsung dan dengan itu kamu telah melakukan kesalahan dibawah s 6B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah s 6B(3) Akta yang sama.

[3] The offence of cultivating cannabis plant carries a life imprisonment term and not less than 6 strokes of the rotan. He was originally sentenced to life imprisonment and 6 strokes wherein he appealed against conviction and sentence. I will refer to the parties as they were at the High Court .

[4] A total of 9 witnesses testified for the prosecution including his mother (SP7) and after defence was called, the Appellant was the only witness for the defence.

Issues In The Appeal

[5] The defence raised a number of issues in their petition and written submissions. However, I shall focus on just a few pertinent issues which made me decide that a conviction under s 6B(1)(a) of the Act was unsafe. The issues are:

i. whether the SCJ had applied the wrong standard of proof in evaluating the evidence of both sides; and

ii. whether the SCJ had overly relied on s 27 of the Evidence Act 1950 and s 37B of the DDA 1952.

Evaluation And Findings Of The Court

i. Whether The Scj Had Applied The Wrong Standard Of Proof In Evaluating The Evidence Of Both Sides

[6] The Sessions Court Judge (SCJ) had summarised in her grounds of judgment the finding of the cannabis plant as follows:

"7. Penemuan pokok ganja di dalam tong cat plastik berwarna putih bertulis (tong cat putih), (barang kes) yang ditanam oleh Tertuduh di dalam kes ini adalah hasil daripada maklumat dan pandu arah yang diberikan oleh Tertuduh sendiri kepada pihak polis. Diperturunkan kronologi penemuan pokok ganja tersebut versi pendakwaan di dalam kes ini:

[7] The SCJ in her grounds of judgment had stated who were the witnesses for the prosecution. Then she went on the chronology above but she did not elaborate on details such as date and time. From the facts, it was gathered that the brother of the Appellant by the name of Ahmad Faizman was key to the former's arrest and discovery of the cannabis plant at the backyard of their house. The prosecution attempted to show that they had made a lot of efforts to trace him and call Ahmad Faizman as a prosecution witness but to no avail. Nevertheless, the prosecution did not tender Ahmad Faizman'ss 112 statement under the provisions of s 32(i) and/or (j) after presenting the documented efforts to trace him.

[8] Obviously, this was a case involving circumstantial evidence rather than direct evidence of cultivation from the chronology above, the police relied on information leading to discovery of the cannabis plant. The prosecution too relied on s 27 of the Evidence Act 1950 to ensure a conviction on the charge of cultivating cannabis plant. Therefore, we have a situation like in this case where the SCJ in her grounds of judgment too placed much emphasis on information leading to discovery and that the Appellant's allegation that he was made to sign a blank paper which later he said he only knew it was the purported written warning and information (P18) from him to the Raiding Officer (SP4) was dismiss