Pendakwa Raya v 1. ) MOHAMAD SUFIAN BIN SAHBUDIN 2. ) MOHD NIZAM BIN POIMAN

Case Significance

Reinforces that joint drug-possession charges under section 34 of the Penal Code require evidence tying each accused to the drugs: where the items are linked only to a shared, publicly accessible location such as a motorcycle, no prima facie case of joint possession is made out.

This High Court decision at Temerloh concerns three charges brought jointly against two accused arising from a single raid in front of a house at Kampung Bongsu, Lanchang, Temerloh, Pahang, in June 2022, all of which failed at the close of the prosecution case. The three charges were: joint control of a scheduled poison, 1.92 grams of Etizolam, under section 30(5) of the Poisons Act 1952; joint possession of 2.98 grams of cannabis under section 6 of the Dangerous Drugs Act 1952; and joint possession of 3.07 grams of methamphetamine under section 12(2) of that Act, each read with section 34 of the Penal Code for common intention. The prosecution's case was heard together with related charges, including a trafficking charge, arising from the same raid. Applying the settled approach in Mat v PP, the court emphasised that at the close of the prosecution case it must scrutinise the evidence and decide whether a prima facie case has been made out, and must not call the defence merely to hear the accused's explanation. On the evidence, the court found that the drugs and poison were connected to a motorcycle that was accessible to anyone, that there was no evidence of what had happened to the motorcycle before the raid or of either accused's activity in relation to it, and that the second accused was merely a pillion rider holding a jungle fowl at the time. Because joint possession, custody and control could not be established against either accused, the court held that the prosecution had failed to make out a prima facie case on all three charges. The court also found there was no evidence of what had happened to the motorcycle before the raid, nor of where it had been kept, so that nothing linked either accused to the items said to have been found with it. Applying the enduring guidance in Mat v PP, it ordered both accused discharged and acquitted of these charges without their defence being called ("dilepas dan dibebaskan daripada semua pertuduhan tanpa dipanggil membela diri").