Pendakwa Raya v 1. ) MOHAMAD YASIN BIN MOHAMAD ALIMIYA 2. ) HASHIM YUNUS

Case Significance

The companion trafficking prosecution under section 39B(1)(a) of the Dangerous Drugs Act 1952, addressing the section 37(h) presumption of knowledge, the effect of one accused's silence and another's uninvestigable third-party defence, and the sentencing of foreign-national accused.

This High Court (Shah Alam) decision is the companion trafficking prosecution, tried together with a related charge, under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952). In this charge two accused were jointly charged with trafficking, while in the related charge a further accused, the driver of the car in which the drugs were carried, was separately charged. The drugs in issue included a mixture of heroin and monoacetylmorphine, and the offence carries the penalties provided under section 39B(2).

At the close of the prosecution case the court found a prima facie case and called on the accused to enter their defences. One of the accused elected to remain silent, exercising the right to make no statement, while another gave sworn evidence from the witness box and raised the presence of an individual referred to as "Anei", but without complete information such as a name that would enable the police to investigate. The court addressed whether the statutory presumption of knowledge under seksyen 37(h) of the Act was applicable, and whether the defence had succeeded in raising any reasonable doubt as to the prosecution case, having regard to the manner in which the drugs were carried and to each accused's asserted knowledge or lack of it.

In the sentencing considerations, the prosecution submitted that all the accused had been charged under section 39B of the Dangerous Drugs Act 1952, which attracts the gravest penalties, that the public interest outweighed the personal factors of the accused, and that as foreign nationals holding UNHCR cards, who had come to Malaysia seeking protection, the accused ought to have been mindful of the country's criminal laws relating to drugs. The judgment, as the companion to the related charge, illustrates the treatment of joint trafficking allegations where one accused stays silent and another names an uninvestigable third party, the operation of the section 37(h) presumption, and the sentencing factors applicable to convicted foreign-national accused.