Pendakwa Raya v 1. ) MOHD NOR KHAIRI BIN NOSOHA 2. ) AZIZAN BIN ABU KASIM

Case Significance

A joint drug-trafficking prosecution under section 39B read with section 34 of the Penal Code, ending in acquittal of both accused at the close of the prosecution case for want of a prima facie case.

This High Court decision at Temerloh concerns a drug-trafficking prosecution tried against two accused jointly, and the Court's ruling at the close of the prosecution's case. The charge was brought under section 39B of the Dangerous Drugs Act 1952, punishable under section 39B(2) read with section 34 of the Penal Code — the provision on common intention — reflecting the prosecution's case that the two accused had acted together in the trafficking alleged. A second charge arose from the events of 28 September 2021, when the accused were said to have been together in a Proton Satria motorcar by the roadside at a residential area in the district.

The joinder of the charge with section 34 of the Penal Code meant the prosecution had to prove not only the trafficking but also that it was done in furtherance of a common intention shared by both accused. As with any drugs charge, the foundation remained possession — custody, control and knowledge of the drug — before the trafficking element or any statutory presumption could operate, and where two accused are charged jointly the evidence must connect each of them to the drugs and to the shared criminal design. At the close of the prosecution's case the Court undertook a maximum evaluation of the evidence to decide whether a prima facie case had been established against each accused.

The Court concluded that the prosecution had failed to establish a prima facie case against either the first or the second accused, and ordered both dilepaskan dan dibebaskan tanpa dipanggil membela diri (discharged and acquitted without being called to enter a defence). The judgment is a useful illustration of the maximum-evaluation test at the close of the prosecution's case in a joint trafficking prosecution, and of the requirement to prove both possession and a common intention under section 34 of the Penal Code before two accused can be called to answer a section 39B charge.