Pendakwa Raya v MOHAMMAD ANWAR HOSSAIN KHA

Case Significance

Illustrates how the element of possession is proved for an offence under section 12(1)(f) of the Passport Act 1966, including the role of section 27 of the Evidence Act 1950 where an accused leads investigators to concealed items, and holds that a trial court errs by importing the exclusive-possession concept from drug cases.

This High Court decision concerns a prosecution appeal against an acquittal on a charge of unlawful possession of another person's passport, and the proof of the element of possession. The accused, a foreign national, had been charged under section 12(1)(f) of the Passport Act 1966, punishable under section 12(2), with having in his possession, without lawful authority, a passport that had been issued to another named person. The Sessions Court judge had held that the prosecution failed to prove a prima facie case and acquitted and discharged the accused, and the prosecution appealed. The questions on appeal included whether the fact that the accused was in possession of someone's passport satisfied the first ingredient of the charge, whether the authority of the passport holder was crucial to that ingredient, whether the failure to call the passport holder as a witness was fatal to the prosecution, and whether the concept of possession developed under the Dangerous Drugs Act 1952 applied to the Passport Act. The court examined the evidence and held that the prosecution had established the element of possession: the accused had the keys to the premises where the passports were kept, had led the immigration team to that location, so that under section 27 of the Evidence Act 1950 the discovery of the passports was attributable to information given by him, and had custody and control of the passport in question, as confirmed by the police report. It considered that the Sessions Court judge had misdirected herself, by way of non-direction, in failing to address the presumption of knowledge and by appearing to import the concept of exclusive possession familiar from drug cases. Concluding that this was a fit and proper case for appellate intervention because the lower court had fallen into error, the court allowed the prosecution's appeal and set aside the acquittal. The judgment is a useful illustration of how possession is proved for an offence under the Passport Act 1966 and of the role of section 27 of the Evidence Act 1950.