Pendakwa Raya v MOKTHAR BIN SAMOH

Case Significance

A section 39B trafficking prosecution over 6.84 grams of methamphetamine ending in acquittal at the close of the prosecution case, trafficking failing where the anterior element of possession was not proved.

This High Court decision at Temerloh concerns a charge of drug trafficking under section 39B of the Dangerous Drugs Act 1952, tried against the accused after a full trial, and forms part of the same prosecution arising from a search of a store in front of a house within the Felda Purun Dalam area in the district of Bera, Pahang. The prosecution alleged that the accused had been found in possession of methamphetamine of a net weight of 6.84 grams and had thereby trafficked in the dangerous drug.

A trafficking charge under section 39B is among the gravest in Malaysian criminal law, but it rests on the same evidential foundation as any drug charge: the prosecution must first prove that the accused was in possession of the drug — that he had custody and control of it and knew of its nature — before the aggravated character of trafficking, or any statutory presumption of trafficking, can arise. At the close of the prosecution's case the Court was required to undertake a maximum evaluation of the evidence and decide whether a prima facie case had been established such that the accused should be called to enter his defence. The Court concluded that the prosecution had not made out a prima facie case: the evidence did not sufficiently establish the possession on which the trafficking charge depended, so the presumption and the trafficking element could not be sustained against the accused to the requisite standard at that stage.

Having found no prima facie case, the Court ordered the accused 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 section 39B trafficking prosecution, and of the principle that trafficking cannot be established where the anterior element of possession — custody, control and knowledge — has not been proved.