Pendakwa Raya v NIK ABDUL AZIZ BIN AB RAHMAN

Case Significance

Illustrates how the statutory presumption of trafficking under section 37(d) of the Dangerous Drugs Act 1952 may be rebutted on a balance of probabilities, leading to an acquittal despite a prima facie case having been established.

This High Court decision at Temerloh, delivered by Roslan bin Mat Nor J after a full trial, concerns a prosecution on three charges arising from events outside a house in Kampung Mempateh, Temerloh, on 29 April 2021. The accused faced two charges of trafficking in dangerous drugs under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) — the first relating to a net weight of 76.4 grams of heroin and monoacetylmorphines, the second to 73.5 grams of methamphetamine — and a third charge of possession under seksyen 12(1) punishable under seksyen 39A(1) of the same Act. The prosecution relied in part on the statutory presumption of trafficking under seksyen 37(d) Akta Dadah Berbahaya 1952 (section 37(d) of the Dangerous Drugs Act 1952).

At the close of the prosecution case the Court was satisfied that a prima facie case had been made out, and the accused was called to enter his defence. The defence evidence included the testimony of two witnesses. On the drugs found in the vehicle, the Court held that the defence had, on a balance of probabilities, succeeded in rebutting the presumption of trafficking under section 37(d). It found no basis to conclude that the defence witnesses had given their evidence merely in the hope of securing the accused's acquittal.

Weighing the whole of the evidence, the Court concluded that the defence had succeeded in raising a reasonable doubt in the prosecution case, and that the prosecution had failed to prove its case beyond reasonable doubt as required for a criminal charge. Having no alternative on that assessment, the Court acquitted and discharged the accused of all the charges (membebas dan melepaskan OKT daripada kesemua pertuduhan). The judgment is a useful illustration of how the statutory presumption of trafficking under section 37(d) of the Dangerous Drugs Act 1952 may be rebutted on a balance of probabilities, and of an acquittal entered where, although a prima facie case was established, the defence raised a reasonable doubt the prosecution could not dispel.