Pendakwa Raya v 1. ) Casey Adrian A/l Nagasvaran 2. ) Norhaya Binti Ishak

Case Significance

Confirms that mere proximity to drugs does not establish possession for section 39B trafficking where another person was present and no forensic evidence links the accused, defeating the section 37(da) presumption at the prima-facie stage.

This High Court decision at Temerloh, Pahang concerns a charge of drug trafficking brought by the Pendakwa Raya (the Public Prosecutor) under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952). The accused was alleged to have trafficked 1,473.7 grams of a dangerous drug comprising heroin and monoacetylmorphines found in a package at an apartment in Cameron Highlands. A second person originally charged jointly with the accused had her charge reduced by the prosecution to one under section 12(1), punishable under section 39A(1), to which she pleaded guilty and was sentenced, and she then testified for the prosecution. The central question at the close of the prosecution case was whether the prosecution had established a prima facie case, that is, whether on the available evidence the court could convict the accused if he were called to enter a defence and chose to remain silent. The court held that the fact that the accused had been arrested near the drugs did not, by itself, establish that he had custody, possession and knowledge of them, because the prosecution witness had been with the accused shortly before the arrest and there was no fingerprint or DNA evidence on the drugs or on the delivery package to connect them to the accused. Without proof that the accused had knowledge, control and possession of the drugs, the court could not invoke the presumption of trafficking under section 37(da) of the Act. The court concluded that the prosecution had failed to establish a prima facie case and ordered the accused dibebas dan dilepaskan tanpa dipanggil membela diri (acquitted and discharged without being called to enter a defence). The judgment illustrates that mere proximity to drugs, absent forensic linkage, does not establish possession where another person was present. The decision underscores that the statutory presumption of trafficking cannot be triggered until possession, custody and knowledge of the drug have first been established on the evidence.