Pendakwa Raya v 1. ) MOHD ZULHAIMI BIN MOHARANI 2. ) NADIA NATASHA BINTI MOHAMED ZAIDI

Case Significance

Confirms that even a very large quantity of drugs will not sustain a trafficking charge where the evidence fails to establish that the accused had custody, control and knowledge of the drugs; absent a prima facie case, the accused are acquitted without being called to defend.

This High Court decision at Shah Alam is a large-quantity drug-trafficking trial that ended in the acquittal of both accused at the close of the prosecution case for want of proof of possession and trafficking. The two accused were jointly charged, in furtherance of a common intention under section 34 of the Penal Code, with trafficking in a very substantial quantity of methamphetamine — 10,284 grams — found at a condominium unit in Balakong, Seri Kembangan, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under section 39B(2). The drugs had been found inside a luggage bag placed on the floor of the kitchen area of the unit.

The court scrutinised the chain linking the accused to the drugs and the premises. Several features told against the prosecution: the keys to the house had been seized from a car in which the accused were travelling, but the accused were not the owners of that car and were not the tenants of the house, and there was evidence of DNA belonging to an unidentified individual in the premises. The central question was whether, on that evidence, the accused had custody or control of the drugs and the knowledge required for possession, and whether trafficking as defined in section 2 of the Act had been made out. The court concluded that there was no direct evidence that the accused had trafficked the drugs, and that it was not safe to call on them to enter a defence when it would not be prepared to convict them if they elected to remain silent.

On the prosecution's failure to establish a prima facie case, the court discharged and acquitted both accused of all the charges without calling on them to enter a defence. The judgment illustrates that even a very large quantity of drugs will not sustain a trafficking charge where the evidence fails to establish that the accused had custody, control and knowledge of the drugs.