AKAHIMO / AKANIMO v Pendakwa Raya

Case Significance

Illustrates the appellate treatment of custody, control and knowledge, exhibit identity, and the section 37(da) trafficking presumption, affirming a conviction and a life-plus-whipping sentence where the presumption was not rebutted.

This Court of Appeal decision, delivered in Bahasa Malaysia, concerns an appeal against a conviction and sentence for trafficking in dangerous drugs. The appellant was one of four persons jointly charged under section 39B(1)(a) of the Dangerous Drugs Act 1952, read with section 34 of the Penal Code for common intention, with trafficking methamphetamine of a net weight of 24,753 grams found at a car park in front of a restaurant. At the close of the prosecution case the High Court had found a prima facie case only against the appellant and one co-accused, calling them to enter their defence, while the other two accused were discharged and acquitted. The appellant, having given sworn evidence, was convicted. On appeal, the issues concerned whether the appellant had the custody, control and knowledge of the drugs necessary for possession, the integrity of the chain of evidence and the identity of the exhibits, the significance of CCTV footage and fingerprint evidence — which the Court treated as corroborative and of limited weight where identity was not truly in issue — and whether the failure to call certain witnesses attracted an adverse inference under section 114(g) of the Evidence Act 1950. The Court held that the defence had failed to rebut the presumption of trafficking under section 37(da) of the Dangerous Drugs Act on a balance of probabilities, and that the prosecution had proved its case beyond a reasonable doubt, so that the conviction was safe and there was no merit warranting appellate interference. It unanimously dismissed the appeal and affirmed the sentence of life imprisonment (thirty years) from the date of arrest together with sixteen strokes of whipping. The judgment illustrates the appellate treatment of possession, exhibit identity and the section 37(da) presumption in a large-quantity trafficking prosecution. The court also declined to dwell on the subsidiary issues canvassed by the parties, observing that its view of them would not have altered the findings it had reached on the central questions of possession and the trafficking presumption.