Pendakwa Raya v 1. ) MUHAMAD FAHRUL FIKRI BIN ISMAIL 2. ) MUHAMMAD SHARIZAL BIN MOHD SHAH

Case Significance

Confirms that a possession charge fails at the prima facie stage where access to the place the drugs were found is not confined to the accused, so that custody, control and knowledge cannot safely be attributed to them, and that a startled or evasive reaction is not always decisive of knowledge.

This High Court decision at Muar concerns a prosecution appeal against the acquittal of two accused at the close of the prosecution case. The two accused had been charged with possession of dangerous drugs, namely cannabis of net weight 92.64 grams, an offence under section 6 of the Dangerous Drugs Act 1952 punishable under section 39A(2), read with section 34 of the Penal Code. The prosecution's case was that, on a raid conducted at a hut behind a house in the early hours, suspected drugs were found on a table where the two accused were seated. The Sessions Court had held that the prosecution failed to make out a prima facie case and had discharged and acquitted both accused without calling on them to enter their defence. On appeal, the Court examined the trial judge's findings of fact and assessment of the witnesses' credibility. It held that the trial judge had correctly found that the prosecution had failed to prove a prima facie case that the drugs were in the custody, control and possession of the two accused, because access to the hut where the drugs were found was not limited to them, so that possession could not safely be attributed to them. The Court also addressed the prosecution's reliance on the conduct of the accused — that they had appeared startled and had tried to flee — as evidence of knowledge, noting that, as held in Abdullah Zawawi Yusoff v Public Prosecutor, such conduct does not in every case play a decisive role in proving knowledge of the drugs. Finding no error in the trial judge's careful analysis of the evidence, the Court dismissed the prosecution's appeal and left the acquittal undisturbed. The decision reflects the settled reluctance of an appellate court to interfere with a trial judge's assessment of credibility and primary facts, particularly a finding that the prosecution has not crossed the prima facie threshold, where that finding is soundly based on a shared-access difficulty that the prosecution evidence did not overcome.