Pendakwa Raya v ABDUL HALEK

Case Significance

A joint dangerous-drugs trafficking prosecution under section 39B(1)(a) of the Dangerous Drugs Act 1952 addressing the presumption of knowledge under section 37(h), the sufficiency of a defence naming an uninvestigable third party, and the sentencing of convicted foreign-national accused.

This High Court (Shah Alam) decision, delivered in two trafficking prosecutions heard together, sets out the grounds concerning several accused charged under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952). In the charge to which these grounds are directed, the third accused was alleged to have trafficked, on 17 December 2020 in the Gombak district of Selangor, in dangerous drugs, namely 22.2 grams of a mixture of heroin and monoacetylmorphine, an offence punishable under section 39B(2). In the related charge, two other accused were jointly charged with trafficking, the cases being tried together.

At the close of the prosecution case the court had found a prima facie case and called on the accused to enter their defences. The procedural issues addressed included whether the presumption of knowledge under seksyen 37(h) of the Act applied; how to treat a defence, raised by one accused giving sworn evidence, of the presence of an individual referred to as "Anei", in circumstances where no complete information such as a name was provided to enable the police to investigate; and the position of the accused who was the driver of the car in which the drugs were carried throughout the journey, the drugs being in an open paper bag on the seat beside him. A recurring question was whether the defence had succeeded in raising any doubt as to the prosecution case.

In mitigation for the third accused it was said that he was 34 years of age, married with three children, a refugee holding a UNHCR card who had come to Malaysia for protection, that he had played only a small role, that it was his first offence, and that the quantity was small. The prosecution stressed that all the accused had been convicted under section 39B of the Dangerous Drugs Act 1952, which carries the gravest penalties, that the public interest outweighed personal factors, and that as foreign nationals under UNHCR protection the accused ought to have been mindful of the country's drug laws. The judgment illustrates the treatment of joint trafficking charges, the presumption under section 37(h), and the sentencing considerations for foreign nationals following conviction.