Pendakwa Raya v 1. ) SAYUTI BIN SHAFIE 2. ) Che Nor Mohd Badrull Hisyam Bin Che Nordin

Case Significance

Illustrates the application of the statutory presumptions of possession and knowledge and the concepts of proximity and momentary possession in a joint drug-trafficking and poison prosecution, and the effect of a successful rebuttal of those presumptions on the safety of a conviction.

This High Court decision at Kota Bharu, Kelantan, is a ruling after a full criminal trial of two accused persons charged with drug and poison offences arising from a single roadside stop. The first charge alleged that the two accused, acting together, had trafficked in cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952 read with section 34 of the Penal Code, and the second charge alleged possession of poison, namely Promethazine and Tramadol, under section 9(1) of the Poisons Act 1952 punishable under section 32(2) read with section 34 of the Penal Code. Both accused claimed trial, and the prosecution called seven witnesses, including the arresting officer, the chemists and the investigating officer. The prosecution case was that during a snap-check roadblock on the main road near Gua Musang a car carrying the two men was stopped and searched, and the drugs and poison were recovered. The central issues were those of proximity and possession, including the question of whether either accused was no more than a momentary carrier, and whether the prosecution had established that the accused had custody, control and knowledge of the drugs and had trafficked in them. The court, per Azmi bin Abdullah J, worked through the statutory presumptions of possession and knowledge and the evidence, including expert and fingerprint evidence, and concluded that on the balance of probabilities the defence had rebutted the presumptions of possession and knowledge, thereby casting a reasonable doubt on the prosecution's case against both accused. Holding that it would not be safe to convict, the court ordered both accused to be discharged and acquitted (dilepaskan dan dibebaskan) of both charges. The judgment is a useful illustration of how the courts apply the statutory presumptions and the concepts of proximity and momentary possession in a joint drug-trafficking and poison prosecution, and of the effect of a successful rebuttal of those presumptions on the safety of a conviction.