Pendakwa Raya v 1. ) WAN AHMAD ZAMHARIRIE BIN WAN MUSTAFHA 2. ) MOHD ASHRUL BIN GHAZALI

Case Significance

Confirms that there is no presumption of common intention under section 34 of the Penal Code, and that an accused cannot be fixed with possession of concealed drugs without evidence of custody, control and knowledge.

This High Court decision sets out the grounds for acquitting the second accused in a drug-trafficking prosecution at the close of the prosecution case. Two accused had been jointly charged under section 39B(1)(a) of the Dangerous Drugs Act 1952, read with section 34 of the Penal Code, with trafficking in a large quantity of methamphetamine found concealed in the tool storage of a lorry. Applying the requirement that the prosecution establish a prima facie case on a maximum evaluation of its evidence under section 180 of the Criminal Procedure Code, and the principles in Public Prosecutor v Mohd Radzi Abu Bakar and Balachandran v Public Prosecutor, the Court examined whether the elements of trafficking and of common intention had been made out against the second accused. It held that there is no presumption of common intention, and that the prosecution had led no evidence of any prior plan or arrangement between the first and second accused, nor any act or conduct on the part of the second accused from which the Court could infer that he had the custody, control or knowledge of the drugs concealed in the lorry. Because mere association or presence could not establish that the second accused shared in the possession of the hidden drugs or in a common intention to traffic them, the Court found that the prosecution had failed to make out a prima facie case against him. It accordingly acquitted and discharged the second accused without calling on him to enter his defence. The judgment illustrates the need for evidence of a meeting of minds to establish common intention under section 34, and the requirement of proof of custody, control and knowledge to fix an accused with possession of concealed drugs. The decision is a clear illustration of the difference between mere presence and shared criminal intention, confirming that an accused found near concealed drugs cannot be convicted of trafficking with another unless the prosecution proves both his knowledge of the drugs and a genuine common plan.