Pendakwa Raya v MOHAMED AFNI BIN AHMAD

Case Significance

Illustrates that exclusive possession is the foundation of a section 39B(1)(a) trafficking charge under the Dangerous Drugs Act 1952, so that a failure to prove it at the close of the prosecution case, together with questions over an undisclosed informer's active role, results in a discharge and acquittal.

This High Court decision concerns a charge of trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952, involving heroin and monoacetylmorphines weighing 33.7 grams, following a roadside raid in Kedah. The prosecution's account, given through the raiding and investigating officers, was that a car was stopped, that when its window was broken the accused, in the driver's seat, threw out a package that was found to contain the drugs, and that the accused was then detained after a struggle. The central questions were whether the prosecution had proved a prima facie case, whether there was sufficient evidence that the drugs were in the accused's possession, whether an informer had played so active a role in the operation that he was no longer protected from disclosure under section 40 of the Act, and whether the failure to call that informer gave rise to an adverse inference under section 114(g) of the Evidence Act 1950. Applying the maximum-evaluation approach and the Federal Court's guidance in Mohd Radzi Abu Bakar on the steps to be taken at the close of the prosecution case, the court held that a reasonable tribunal assessing the evidence would conclude that the prosecution had failed to prove that the accused was in exclusive possession of the drugs as charged. Because exclusive possession is the foundation of a trafficking charge, its absence meant no prima facie case had been made out. The court accordingly held that the prosecution had failed to establish a prima facie case and ordered that the accused be dilepas dan dibebaskan (discharged and acquitted). In reaching that conclusion the court noted that although the chemist's report had been admitted by consent and the chain of evidence over the exhibits was not disputed, those admissions went only to the identity and continuity of the drugs and did not relieve the prosecution of its distinct burden to prove that the accused had knowing and exclusive control of them. The judgment illustrates how the requirement of exclusive possession, and questions about the role of an undisclosed informer, are assessed at the close of the prosecution case in a drug-trafficking trial.