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

Case Significance

Another illustration that a small-quantity joint-possession charge under section 12(2) of the Dangerous Drugs Act 1952 collapses where the drugs are tied only to a publicly accessible motorcycle and nothing connects either accused to them, so no prima facie case of joint possession arises.

This High Court decision at Temerloh concerns a charge of joint possession of a dangerous drug arising from a single raid in front of a house at Kampung Bongsu, Lanchang, Temerloh, Pahang, in June 2022, which failed at the close of the prosecution case. The charge alleged that the two accused, in furtherance of a common intention under section 34 of the Penal Code, were found in possession of 0.86 grams of a mixture of Heroin and Monoacetylmorphines (0.65 grams of heroin and 0.21 grams of monoacetylmorphines), an offence under section 12(2) of the Dangerous Drugs Act 1952 punishable under section 12(3). The charge was heard together with other charges against the same accused arising from the same raid, including a trafficking charge and further possession and scheduled-poison charges. Applying the approach in Mat v PP, the court reiterated that at the close of the prosecution case it must examine the evidence to 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 facts, the court found that the drugs 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 the activity of either accused in relation to it, and that the second accused was merely a pillion rider holding a jungle fowl. Because the elements of joint possession, custody and control were not established against either accused, the court held that the prosecution had failed to make out a prima facie case. The court reiterated that it must not call an accused to enter a defence merely to hear his explanation, and that where the prosecution's own evidence at the close of its case does not disclose the elements of the offence, the accused is entitled to an acquittal there and then. Applying the enduring guidance in Mat v PP, it ordered both accused discharged and acquitted of this charge without their defence being called ("dilepas dan dibebaskan daripada semua pertuduhan tanpa dipanggil membela diri").