Pendakwa Raya v 1. ) Alkhateeb Yunes Abdulrahman Qaid (L) (Yemen) 2. ) Waseem Akram (L) (Pakistan)

Case Significance

Illustrates an acquittal at the close of the defence case in a joint drug-trafficking prosecution under section 39B(1)(a) of the Dangerous Drugs Act 1952, turning on unproven possession and knowledge and the significance of uncalled material witnesses under section 114(g) of the Evidence Act 1950.

This High Court decision in the Criminal Division at Shah Alam concerns a drug-trafficking prosecution of two accused persons and their acquittal at the close of the defence case. The two accused, both foreign nationals, were jointly charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 read with section 34 of the Penal Code for trafficking in 5,868.7 grams of cannabis, the drugs having been found in a bag placed inside a car connected to them. The accused claimed trial, and the prosecution called seven witnesses, including the raiding officer, the chemist and the investigating officer. At the close of the prosecution case the court was satisfied that every element of the offence had been made out and called the accused to enter their defence, and they elected to give sworn evidence from the witness box without calling any defence witnesses. At the close of the defence case, however, the court, per Latifah bt Hj Mohd Tahar J, found that the defence had succeeded in raising a reasonable doubt. Although the investigating officer had shown a proper chronology of the handling of the exhibits, there remained gaps and reasonable doubt as to whether the accused had custody, control, possession and knowledge of the red bag in which the drugs were found, and the prosecution had failed to prove those elements, and a common intention to traffic, beyond reasonable doubt. The court also proceeded on the footing that mere possession of 5,868.7 grams of cannabis did not by itself prove trafficking, and it drew significance from the failure to call material witnesses, an omission relevant under section 114(g) of the Evidence Act 1950. Concluding that the defence had raised a reasonable doubt on the prosecution case against both accused, the court ordered both to be discharged and acquitted (dilepaskan dan dibebaskan). The judgment is a useful illustration of an acquittal at the close of the defence case in a joint trafficking prosecution turning on unproven possession and knowledge and uncalled material witnesses.