Pendakwa Raya v MOHD SOBRI BIN ABU BAKAR

Case Significance

Illustrates the failure of a belated 'borrowed-car' defence that does not comply with the Alcontara notice requirement in a section 39B trafficking prosecution, treated as a mere denial and afterthought.

This High Court decision at Alor Setar, Kedah concerns a charge of drug trafficking brought by the Pendakwa Raya (the Public Prosecutor) under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), one of three related charges against the same accused tried together arising from the same occasion. This charge alleged that the accused had trafficked 78.10 grams of heroin in front of a house in Kampung Budi, Pokok Sena. The central issue was whether the accused had possession, custody and knowledge of the drugs. His defence was that he had no possession of the drugs, which had been left behind by a friend who had earlier borrowed his car. The court examined this account against the requirement that a defence going to the identity of a third party who is said to be the true owner of the drugs must be raised properly and in good time, in accordance with the Alcontara principle requiring an accused to furnish particulars of such a person to the authorities so that the account can be investigated. It found that the accused had failed to comply with the Alcontara notice requirement and that his defence was a mere denial and an afterthought, a fabrication not raised at the proper stage. After a full trial the court was satisfied that the elements of trafficking had been established and convicted the accused on this charge. On sentence, weighing the mitigating and aggravating factors and the paramount public interest in drug offences reflected in authorities such as PP v Mohd Fazelan Md Khuzeh, the court imposed imprisonment for life, being thirty years, from the date of arrest, together with twelve strokes of the cane, ordering the term to run concurrently with the sentences on the other charges. The judgment is a useful illustration of the failure of a belated "borrowed-car" defence that does not comply with the Alcontara requirements in a trafficking prosecution.