Pendakwa Raya v MUHAMMAD AMIRUL ASHRAF BIN MUHAMMAD SYAFIQ SURASH

Case Significance

Illustrates the rigour of the exclusive-possession requirement in shared-premises drug-trafficking prosecutions under section 39B(1)(a) of the Dangerous Drugs Act 1952: shared access, absence of a forensic link and a failure to investigate other occupants meant no prima facie case was made out under section 180 of the Criminal Procedure Code and the accused was acquitted.

This High Court decision concerns a charge of drug trafficking under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), arising from a police raid on a shared, four-bedded house occupied by seven people. The accused was in one of the rooms and handed over a box containing 702 grams of cannabis after being cautioned by the police to do so. The central question at the close of the prosecution case was whether the prosecution had adduced clear and reliable evidence proving that the accused was in possession and control of the drugs found in the room to the exclusion of the other occupants, a matter that had to be established before he could be called to enter his defence. The court set out the governing standard, namely the prima facie case required by section 180(1) and (3) of the Criminal Procedure Code, as codified in section 180(4), under which the accused must be acquitted if a prima facie case is not made out, and it referred to the Federal Court's exposition of that threshold in Balachandran v PP. Examining the evidence, the court found that access to the room was shared among the occupants and that the keys were accessible within the premises, so that exclusive possession could not be attributed to the accused; it also noted the absence of any forensic link connecting the accused to the drugs and the prosecution's failure to investigate another material suspect who occupied a downstairs room. The court considered whether the statutory presumption of possession under section 37(d) could be invoked, and whether an adverse inference under section 114(g) of the Evidence Act 1950 arose from the gaps in the investigation. Concluding that the prosecution had not discharged its burden of proving possession, custody or control, the court held that no prima facie case was made out and acquitted the accused under section 180(2) of the Criminal Procedure Code (acquitted without being called to enter a defence). The judgment illustrates the rigour with which the courts apply the exclusive-possession requirement in shared-premises trafficking cases.