Pendakwa Raya v AMINUDDIN BIN AMIR

Case Significance

Illustrates that where the prosecution relies on the presumption of possession and knowledge under section 37(d) of the Dangerous Drugs Act 1952, an accused may rebut it on the balance of probabilities — mere proximity to drugs found in a place accessible to others is not custody or control — and that an omitted time in a charge is not necessarily fatal where the evidence supplies it.

This High Court decision at Seremban concerns a charge of trafficking in 573.6 grams of cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952. At the close of the prosecution case an earlier judge had found a prima facie case, invoking the presumption of possession and knowledge under section 37(d) of the Act, and called on the accused to enter his defence; the defence stage was then conducted by a different judge following a transfer. The accused called three witnesses — himself, his wife and his daughter.

The court first addressed a preliminary issue: the charge sheet did not state the time of the alleged offence, which section 153 of the Criminal Procedure Code requires as part of the particulars giving an accused reasonable notice. Following the Court of Appeal's guidance, the court held that on the evidence — the observation beginning at about 5:00pm and the arrest some minutes later — the time could reasonably be construed as between 5:00pm and 5:10pm, that the point had not been raised until written submissions, and that the omission was not fatal.

On the merits, because the prosecution relied on the section 37(d) presumption, the accused had to rebut it on the balance of probabilities, not merely raise a reasonable doubt. The drugs had been found in a black plastic box on the floor of a hut in an unfenced area that was highly accessible to anyone, and the court, applying authority that mere proximity to drugs cannot be equated with custody or control, found this raised a serious doubt about the accused's possession. It held that the accused had succeeded, on the balance of probabilities, in rebutting the presumption of possession and knowledge under section 37(d), and had also raised a reasonable doubt in the prosecution case. The court accordingly acquitted and discharged the accused. The judgment illustrates the rebuttal of the section 37(d) presumption where the drugs are found in a place accessible to others.