Pendakwa Raya v 1. ) XXXX 2. ) ASMA 'AQILA BINTI NAZARI 3. ) MOHD NUR HAZWAN BIN OTHMAN 4. ) QHAIRUN NIESA BINTI MAHAMAD 5. ) SITI AZURA BINTI TOPANI 6. ) ZULKHAIRI BIN JAMA'AL AZAHAR

Case Significance

Illustrates how a joint-possession drug prosecution collapses where the drugs are found in shared premises and the prosecution cannot prove exclusive access and individual knowledge, defeating both possession and the trafficking presumption at the close of its case.

This High Court decision at Alor Setar concerns consolidated drug prosecutions against six accused arising from a pre-dawn police raid on a house in Jitra, Kedah. Across the linked cases the accused faced a possession charge under subseksyen 12(2) Akta Dadah Berbahaya 1952 (subsection 12(2) of the Dangerous Drugs Act 1952) punishable under section 39A(2), and two trafficking charges under perenggan 39B(1)(a) (paragraph 39B(1)(a)), each read with section 34 of the Penal Code, in respect of monoacetylmorphines, heroin of 181.1 grams and methamphetamine of 1,405.4 grams found in the central area of the house. The prosecution's case was that all six, one of them a child, were jointly in possession of and trafficking the drugs recovered during the raid. The central issue at the close of the prosecution case was whether the prosecution had proved, to the prima facie standard, that the accused had exclusive access to and control of the premises and knowledge of the drugs, so as to fix them with possession and to raise the presumption of trafficking together with a common intention. The court's analysis focused on weaknesses in the evidence of exclusive access: the accused were all found asleep when the raid was conducted, the drugs were located in a common area rather than in the personal control of any accused, and no house key was seized despite the complainant's evidence that the front door had been opened with a key, against a background in which the tenancy had been sublet through an intermediary. On that evidence the court held that the prosecution had failed to prove exclusive access, failed to establish the accused's knowledge of the drugs, and therefore failed to prove the element of possession; the presumption of trafficking was not raised and common intention was not made out. Concluding that no prima facie case had been established, the court ordered that all six accused be dilepas dan dibebaskan tanpa dipanggil membela diri (discharged and acquitted without being called to enter a defence). The judgment is a useful illustration of how the requirement of exclusive access and proven knowledge defeats a joint-possession drug case where the accused are found in shared premises without evidence tying them individually to the drugs.