Shah Nasir Hussain v Pendakwa Raya

Case Significance

Illustrates the operation of the presumption of possession and knowledge under section 37(d) of the Dangerous Drugs Act 1952 in a trafficking appeal, the Court of Appeal upholding a conviction and a 30-year sentence where the appellant failed to rebut the presumption on the balance of probabilities.

This Court of Appeal decision concerns an appeal against conviction and sentence for trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952, punishable under section 39B(2). The appellant had been charged with trafficking in 468.7 grams of dangerous drugs, comprising 320.4 grams of heroin and 148.3 grams of monoacetylmorphines, seized after he was detained near a hotel on a highway in Selangor. At the close of the prosecution case the High Court had invoked the presumption of possession and knowledge under section 37(d) of the Act, read with the definition of trafficking in section 2, called on the appellant to enter his defence, and, after he gave sworn evidence, convicted him. He was sentenced to imprisonment for life, treated as 30 years, from the date of arrest, with no whipping because he was over 50 years of age at sentencing. On appeal, the court examined the sufficiency of the evidence of possession and knowledge, the limited corroborative value of certain documentary evidence, and the appellant's defence, which it regarded as a bare denial and an afterthought. It held that the appellant had failed to raise any reasonable doubt as to possession and knowledge and had failed, on the balance of probabilities, to rebut the presumption under section 37(d). The court gave short shrift to the submission that the accused had not struggled or attempted to flee, being satisfied on the evidence that he had no opportunity to do so once he was suddenly surrounded, and it was satisfied that he had been in actual physical custody and control of the drugs with the necessary knowledge of their nature. Finding no merit warranting interference with the High Court's findings, the court dismissed the appeal against conviction, holding the conviction safe, and, with the coming into force of the Abolition of Mandatory Death Penalty Act 2023, maintained the sentence of 30 years' imprisonment from the date of arrest, dismissing the appeal against sentence. The judgment illustrates the operation of the presumption of possession and knowledge under section 37(d) in a drug-trafficking appeal.