Pendakwa Raya v NAZRI BIN MOHAMMAD

Case Significance

Illustrates how possession, custody and control are established in a vehicle-stop trafficking case under section 39B(1)(a) of the Dangerous Drugs Act 1952, and post-Act 846 sentencing for a large heroin quantity: the accused's account raised no reasonable doubt, and life imprisonment was imposed with no whipping given his age over 50.

This High Court decision follows a full criminal trial for trafficking in a dangerous drug under section 39B(1)(a) of the Akta Dadah Berbahaya 1952 (Dangerous Drugs Act 1952), punishable under section 39B(2). The prosecuting authority is the "Pendakwa Raya" (the Public Prosecutor); the accused is referred to here by role. The charge concerned trafficking in a mixture of heroin and monoacetylmorphines weighing some 2,227.8 grams, following a police operation acting on information about a drug transaction, in which the accused's car was surrounded and searched.

The contest at trial centred on possession — whether the accused had "kawalan dan jagaan" (control and custody) of the drugs found. A raiding officer stopped the car and found an open black plastic bag on the front passenger seat containing slabs of a substance later confirmed to be the drug. The prosecution's case was that only the accused was in the car when it was stopped, and that the plastic bag being open — with a chemical smell noticeable in the air-conditioned car — showed the accused's knowledge of the drugs. The car was a rental, and there was evidence it had been rented to another individual, which the defence relied upon; the accused also claimed the drugs had been found in the tyre well of the boot rather than on the front passenger seat. The court had to decide whether this raised a reasonable doubt in the prosecution's case.

The court found that the defence did not raise a reasonable doubt, and convicted the accused. On sentence, it addressed the effect of Act 846, which abolished the mandatory death penalty for such offences, noting that the existing sentencing principles — including rehabilitation and the protection of society from the harm that would follow if the drugs reached the market — remained relevant. Weighing mitigation against the aggravating quantity, the court imposed a sentence of imprisonment for life. Because the accused was over 50 years of age, no whipping was ordered.

The judgment is a useful illustration of how possession, custody and control are established in a vehicle-stop drug case, of the effect of the accused's own account on reasonable doubt, and of sentencing for trafficking following the abolition of the mandatory death penalty under Act 846.