Pendakwa Raya v MOHD KAMAL BIN IBRAHIM

Case Significance

A clear illustration that even a very large drug seizure will not sustain a section 39B(1)(a) trafficking charge where the prosecution cannot prove an unbroken chain of custody: an unexplained storage gap and failure to produce the physical containers broke the evidential chain and defeated the prima facie case.

This High Court decision at Kota Bharu concerns a prosecution for drug trafficking that failed at the close of the prosecution case for want of a prima facie case. The accused was charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), punishable under section 39B(2), with trafficking 8,246.8 grams of methamphetamine found in a Proton Wira at a junction on the Pasir Mas-Rantau Panjang highway in Kelantan. A raiding party, acting on intelligence, had stopped and searched the car. At the close of its case, however, the court found that the prosecution had failed to prove the essential elements of possession, custody and control, and therefore also the element of trafficking. The court's central concern was the integrity of the exhibits: the prosecution could not satisfactorily explain how the drugs were stored during a gap of more than thirty hours between their removal from the exhibit store and their delivery to the Chemistry Department, and it failed to physically produce the three gunny sacks in which the drugs had been found. Photographs of the sacks were held insufficient under the best-evidence rule, absent a satisfactory explanation, so that the chain of evidence was broken. Applying the maximum-evaluation test at the close of the prosecution case as explained by the Federal Court in Magendran Mohan v PP — under which the defence ought not to be called merely to clear doubts in the prosecution's case — the court concluded that it would not be prepared to convict even if the accused elected to remain silent. Holding that no prima facie case had been made out under section 180 of the Criminal Procedure Code, the court ordered the accused discharged and acquitted without his defence being called ("OKT dilepaskan dan dibebaskan tanpa dipanggil untuk membela diri"). The prosecution filed an appeal to the Court of Appeal against the acquittal.