NORHASLIZA BINTI MUHAMMAD v Pendakwa Raya [TIMBALAN PENDAKWA RAYA]

Case Significance

Confirms that a conviction for joint possession of drugs must rest on admissible, non-hearsay evidence linking each accused to the drugs, and that a credible case that a third party was the true occupier can render a joint-possession conviction unsafe on appeal.

This High Court decision at Alor Setar is a criminal appeal in which two co-accused successfully overturned their joint conviction on drug charges, the appeal turning on the treatment of hearsay and the possibility that the accused had been implicated by a third party. The two appellants had been convicted by the Magistrate at Langkawi of offences under the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952). The charge in this appeal alleged joint possession, under section 12(2) read with section 39A(1) of the Act and read with section 34 of the Penal Code, of 13.28 grams of dangerous drugs comprising methamphetamine and 3,4-methylenedioxymethamphetamine (MDMA), together with related charges. A central feature of the defence was the existence of a person known as "Shido," said to be the true tenant of the house where the drugs were found.

The court scrutinised the basis on which the joint possession finding had been made. It reasoned that hearsay evidence could not be relied upon by the court to establish the connection between the accused and the drugs, and it took seriously the possibility that the appellants might have been framed or otherwise implicated by the actual occupier of the premises. On that analysis the evidence did not safely support the finding that both appellants were in joint possession of the drugs to the standard required for a conviction.

The court allowed the appeal in this case, setting aside the convictions and sentences imposed by the Magistrate on both appellants. In doing so it applied the settled rule that hearsay is inadmissible to prove the truth of what it asserts, and that the presence of drugs in premises does not automatically fix possession on every occupant where another person may have had control. The judgment illustrates the appellate court's insistence that a conviction for joint possession of drugs rest on admissible, non-hearsay evidence firmly linking each accused to the drugs, and that a credible suggestion of a third party being the true occupier can render a joint-possession conviction unsafe and require the convictions to be quashed.