Pendakwa Raya v MR. CHACHAHWAN AHMAH

Case Significance

A dangerous-drugs prosecution founders where investigators fail to exclude third-party access to rented premises and withhold existing fingerprint and DNA reports, engaging the adverse-inference rule under section 114(g) of the Evidence Act 1950 against a case built on non-exclusive possession.

This High Court decision concerns a prosecution for a dangerous-drugs offence in which drugs were found on rented premises, and it turns on the well-established requirement that the prosecution prove exclusive possession, custody and control before the statutory presumptions of trafficking or possession can operate against an accused. The prosecuting authority is the “Pendakwa Raya” (the Public Prosecutor). The accused, referred to here only by his role, was charged after drugs were recovered from premises that were rented in the name of a third party.

The court's analysis, as reflected in the catchwords, focused on whether the accused was in “exclusive possession, custody and control” of the drugs. Several features of the evidence pointed away from exclusivity: the premises were “rented in [the] name of [a] third party” whom the investigators had failed to investigate; there were “vehicles suggesting access by others”; the keys were “not exclusively with [the] accused”; and the landlord also had access to the premises. On that footing the central question became whether “the prosecution failed to exclude access by third parties” to the place where the drugs were found.

The court also addressed the evidential consequences of the investigation's gaps. It considered the duty to “exclude access by others”, the drawing of an “adverse inference” for “failure to produce material evidence”, and specifically that “fingerprint and DNA reports [were] not tendered despite [their] existence” — raising the question whether the court was entitled to presume that evidence would have been unfavourable to the prosecution under section 114(g) of the Evidence Act 1950. Bound up with this was a criticism of the investigation itself: a “failure to conduct [a] thorough and impartial investigation”, including the failure to investigate the named tenant, the vehicles and other potential occupants.

The judgment is a clear example of how deficiencies in investigation — unexamined third-party access and untendered forensic evidence — can prevent the prosecution from establishing the exclusive possession that a drugs charge requires, and of the role of the adverse-inference rule in policing that failure.