Pendakwa Raya v 1. ) NAZRUL AIMAN BIN NAZARI 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 the failure of a joint drug-trafficking prosecution built on shared occupation of premises where the prosecution cannot prove each accused's exclusive access and individual knowledge of the drugs.

This High Court decision at Alor Setar is the trafficking file in a pair of consolidated prosecutions arising from a pre-dawn police raid on a house in Jitra, Kedah, in which six accused were charged together. Under this file the six faced two charges under perenggan 39B(1)(a) Akta Dadah Berbahaya 1952 (paragraph 39B(1)(a) of the Dangerous Drugs Act 1952), punishable under section 39B(2) and read with section 34 of the Penal Code, for trafficking in 181.1 grams of heroin and 1,405.4 grams of methamphetamine; a companion file dealt with a possession charge over monoacetylmorphines. The drugs were recovered from the central area of the house at about 3.45 a.m. The prosecution's theory was that all six accused, acting on a common intention, were jointly in possession of and trafficking the drugs seized during the raid. The decisive question 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 together with knowledge of the drugs, so as to fix them with possession and to invoke the presumption of trafficking. The court's reasoning turned on the frailty of the evidence of exclusive access and control. The accused were all asleep when the team entered; the drugs lay in a shared, common area rather than in the personal keeping of any individual accused; no house key was seized notwithstanding the complainant's evidence that the front door had been opened with a key; and the tenancy had passed through a chain of subletting, from the original tenant to a named intermediary and onward to the occupants. On that evidence the court held that the prosecution had failed to prove exclusive access, failed to prove the accused's knowledge of the drugs, and therefore failed to establish possession, so that neither the presumption of trafficking nor a common intention could be sustained. Finding no prima facie case, 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 illustrates how a joint drug-trafficking case built on shared occupation of premises fails where the prosecution cannot tie each accused individually to the drugs by proof of exclusive access and knowledge.