Pendakwa Raya v 1. ) MUZAFFAR BIN ZAABA 2. ) CHE HASMIDI BIN CHE HASSAN

Case Significance

Illustrates the additional burden a joint drug charge imposes, requiring proof of both possession and a shared intention, and how rebuttal of the statutory possession presumption at the defence stage brings down a jointly laid charge.

This High Court decision at Shah Alam concerns the single charge brought jointly against both accused within a set of related drug prosecutions tried together, arising from drugs found in a residential unit and a vehicle. Unlike the other files in the group, which laid individual charges against one or other accused, this file charged the first accused and the second accused together, in furtherance of a common intention, under the Dangerous Drugs Act 1952, engaging seksyen 39B and seksyen 12(2) (sections 39B and 12(2)) and the possession presumption in section 37(d). Because the charge was joint, the court had to consider not only whether each accused could be fixed with possession of the drugs found at the relevant location but also whether the prosecution had proved the shared intention that a joint charge requires, so that the acts of one could be attributed to both. The recurring difficulty across the group of cases, the location of the drugs and the strength of the connection between each accused and the place where they were found, bore directly on both the possession element and the alleged common intention. Evaluating the whole of the evidence at the close of the defence case, the court held that the defence had succeeded in rebutting the presumption under section 37(d) of the Dangerous Drugs Act 1952, so that joint possession, and with it the common intention on which the charge depended, was not established to the required standard. The court accordingly discharged and acquitted both the first accused and the second accused on the joint charge under this file. The judgment is a useful illustration of the additional burden a joint drug charge imposes, requiring proof of both possession and a shared intention, and of how the rebuttal of the statutory possession presumption at the defence stage brings down a jointly laid charge.