Pendakwa Raya v Kumares A/l Sinaiah

Case Significance

Illustrates how one drug operation can produce an acquittal on trafficking together with a conviction for possession under section 12(2), and how a defence dismissed as an afterthought is assessed.

This High Court criminal decision at Shah Alam is part of the grounds of judgment in a consolidated drug prosecution against two accused, this case number carrying charges of possession of dangerous drugs against the second accused. The prosecution stemmed from a single operation at an industrial area, where officers arrested both accused and, following a pointing-out by the first accused, recovered various drugs that were analysed and produced in evidence; the charges spanned trafficking under section 39B against both accused with common intention and possession under "seksyen 12(2) Akta Dadah Berbahaya 1952" (section 12(2) of the Dangerous Drugs Act 1952), the charges under this number relating to small quantities of heroin and monoacetylmorphines. A key evidential feature was the treatment of the second accused’s account. The Court accepted the Deputy Public Prosecutor’s submission that the second accused’s defence, in which he distanced himself from the drugs and pointed to another man said to have been at the scene, was an afterthought and a mere denial, unsupported by the evidence of recovery. On the most serious matter, the trafficking charges tried at the same time, the Court found the second accused not guilty and ordered him "dilepaskan dan dibebaskan" (discharged and acquitted). On the possession charges, however, the second accused was convicted under section 12(2) of the Dangerous Drugs Act 1952 and sentenced, in the possession case tried with this one, to imprisonment running concurrently from the date of his arrest. In reaching those conclusions the Court traced the recovery evidence carefully, including the account that some drugs were found on the body of each accused and others in undergrowth a short distance from where the second accused was detained, and it declined to accept his suggestion that another man present at the scene accounted for the drugs. Read with the companion trafficking and possession cases, the judgment illustrates how a single operation can yield an acquittal on trafficking yet convictions for possession, and how the courts assess a defence characterised as an afterthought.