Pendakwa Raya v ZAINUDDIN BIN MAHMUD

Case Significance

Confirms that in a trafficking prosecution under section 39B(1)(a) of the Dangerous Drugs Act 1952 the prosecution must establish possession as the foundation of the charge; where the evidence of possession is not made out to the prima-facie standard, the accused is acquitted at the close of the prosecution case.

This High Court decision at Alor Setar is a drug-trafficking trial that ended in acquittal at the close of the prosecution case for failure to prove possession. The accused was charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 with trafficking in dangerous drugs weighing 340.50 grams in total — comprising 220.10 grams of heroin and 120.4 grams of monoacetylmorphines — at a house in Kampung Bukit Tangga, Mukim Ulu Melaka, Langkawi, in October 2020. The prosecution called six witnesses to establish its case.

The court's task at the close of the prosecution case was to determine whether a prima facie case had been made out, which required the prosecution to prove, among other things, that the drugs were of the kind listed in the First Schedule to the Act and, critically, that they were in the possession of the accused. In assessing possession the court had to weigh the reliability of the identification and handling of the drugs and the credibility of the key prosecution witnesses, including two of the arresting and investigating witnesses. On that assessment the court was not satisfied that the essential element of possession had been established to the requisite standard, so that the chain necessary to fix the accused with trafficking was not complete.

The court concluded that the prosecution had failed to prove a prima facie case against the accused and accordingly discharged and acquitted him of the charge without calling on him to enter a defence. The result turned not on any weakness in the identity or weight of the drugs but on the failure to connect them to the accused as a matter of possession, which is the indispensable foundation on which the further inference of trafficking is built. The judgment illustrates that in a trafficking prosecution the prosecution must first establish possession as a foundation for the charge, and that where the evidence of possession is not made out to the prima-facie standard, the accused is entitled to be acquitted at the close of the prosecution case without being called to enter a defence.