Pendakwa Raya v ISMAWARDI BIN ISMAIL

Case Significance

Illustrates that a large drug seizure does not sustain a trafficking charge under section 39B(1)(a) of the Dangerous Drugs Act 1952 where no prima facie case is established, and underscores the investigating officer's duty to investigate exculpatory material disclosed by the defence.

This High Court decision concerns a trafficking prosecution under section 39B(1)(a) of the Dangerous Drugs Act 1952 in which the accused was discharged and acquitted at the close of the prosecution case. The accused faced two charges arising from a single incident: trafficking in a dangerous drug of 9,855.7 grams, comprising heroin and monoacetylmorphines, and a separate charge of possession of methamphetamine. The prosecution case, presented through six witnesses, was that a police team acting on information stopped a car in front of a house and detained the driver, from which the trafficking charge arose. At the close of the prosecution case the court had to decide whether the prosecution had established a prima facie case (kes prima facie), whether the failure of the investigating officer to investigate a statutory declaration tendered as exhibit D21 had undermined the prosecution, and whether an adverse inference under section 114(g) of the Evidence Act 1950 was engaged. The court found that the prosecution had not established the ingredients of the trafficking charge to the prima-facie standard. It considered that the investigating officer's failure to pursue the matters raised in the statutory declaration weakened the prosecution case, and, applying the principles in authorities such as Alcontara Ambross Anthony v PP on the duty to investigate a defence disclosed to the police, held that this left a gap in the evidence. The court was not satisfied that the elements of custody, control and knowledge had been established to the prima-facie standard on the trafficking charge, and it declined to draw the inferences the prosecution invited. Concluding that it would not be safe to call the accused to enter a defence, the court ordered the accused discharged and acquitted (dilepas dan dibebaskan) at the close of the prosecution case. The judgment illustrates that even a large seizure will not sustain a trafficking charge where the prosecution fails to establish a prima facie case, and underscores the investigating officer's duty to investigate exculpatory material disclosed by the defence.