Pendakwa Raya v 1. ) SITI ASMA BINTI RAMLI 2. ) SAZAIDI BIN SALLEH

Case Significance

Illustrates the importance of a contemporaneous seizure record in a drug-trafficking prosecution: a material, unexplained contradiction between a seizing witness's testimony and the search list can be fatal to the prosecution at the close of its case, entitling the accused to be discharged and acquitted without being called to enter a defence.

This High Court decision at Alor Setar concerns a joint drug-trafficking prosecution against two accused that failed at the close of the prosecution case. The two accused were charged that, acting together on 22 May 2022 at about 12.45 a.m. at a roadside in the Kota Setar district of Kedah, they trafficked a dangerous drug, an offence 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 seksyen 34 Kanun Keseksaan (section 34 of the Penal Code, common intention). The prosecution's case foundered on a documentary inconsistency. The court found a significant contradiction between the oral evidence of the complainant, or seizing witness, and the search list (senarai bongkar) — a contemporaneous document recording what was seized. A contemporaneous record made at the time of the seizure carries particular weight, and where the oral testimony cannot be reconciled with such a record, the reliability of the prosecution's account of the seizure is undermined. Because that contradiction went unexplained and was not reconciled, the court held that the prosecution had failed to prove its case to the prima facie standard. It ordered both accused dilepas dan dibebaskan (discharged and acquitted) without calling on them to enter a defence. Delivered by Judicial Commissioner Evawani Farisyta binti Mohammad, the judgment is a useful illustration of the importance of a contemporaneous seizure record in a drug-trafficking prosecution: a material and unexplained contradiction between a seizing witness's testimony and the search list can be fatal to the prosecution at the close of its case, entitling the accused to be acquitted without being called to enter a defence. The decision underscores the evidential weight the courts give to documents made at the time of a seizure, and the difficulty the prosecution faces where its live witnesses depart from the record they themselves created, since such a divergence goes directly to the integrity of the seizure on which a trafficking charge depends.