Pendakwa Raya v TAN KOK LONG

Case Significance

Illustrates how the failure to call a material witness — one who could speak to a defendant's access to the vehicle in which drugs are found — can leave a fatal gap in a methamphetamine-trafficking case at the close of the prosecution's evidence, resulting in a discharge and acquittal without the accused being called on his defence.

This High Court decision at Shah Alam concerns a large-quantity methamphetamine-trafficking prosecution that failed at the close of the prosecution case. Consent to prosecute having been given under seksyen 39B(3) (section 39B(3)) of the Dangerous Drugs Act 1952, the accused was charged that, on 6 August 2020 at about 5.00 p.m. at the car park of a supermarket at Batu Caves in the Gombak district of Selangor, he trafficked methamphetamine weighing 4,181.5 grams, an offence under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952). The questions for the court at the close of the prosecution case were whether the prosecution had established a prima facie case, whether a discrepancy in the weight and quantity of the drugs was fatal to the case, and whether the failure to call another witness amounted to a material failure by the prosecution. The court found the gaps significant. In particular, the prosecution's failure to call a witness who had been with the accused — a witness who could have explained the facts concerning the rental of the vehicle in which the drugs were found, the extent of the accused's access to that vehicle, and the drugs themselves — had damaged the prosecution's case. After a maximum evaluation of the evidence, the court held that the prosecution had failed to prove a prima facie case and ordered the accused melepaskan dan membebaskan (discharged and acquitted) of the charge without being called to enter a defence. Delivered by Latifah Hj Mohd Tahar J, the judgment is a useful illustration of how the failure to call a material witness — one who could speak to a defendant's access to the vehicle in which drugs are found — can leave a fatal gap in a trafficking case at the close of the prosecution's evidence.