Pendakwa Raya v 1. ) MUHAMAD AZLAN BIN RAMLI 2. ) MUHAMAD FARISYA FADLY BIN YAHAYA

Case Significance

Illustrates the innocent-carrier defence and the rebuttal of the section 37(da) trafficking presumption under the Dangerous Drugs Act 1952, including the drawing of an adverse inference where the prosecution fails to call the employer and vehicle owner.

This High Court decision in the Criminal Division at Kuala Lumpur concerns a drug-trafficking prosecution of two accused persons and the acceptance of the defence of an innocent carrier. The two accused were charged under section 39B(1)(a) of the Dangerous Drugs Act 1952, punishable under section 39B(2), after methamphetamine weighing more than 28 kilograms was discovered in the boot of a car driven by the first accused, with the second accused as passenger. At the close of the prosecution case the court had found a prima facie case of trafficking established by invoking the statutory presumption of trafficking under section 37(da) of the Act, and had ordered both accused to enter their defence under section 180(3) read with section 180(4) of the Criminal Procedure Code. The court set out the elements of trafficking that the prosecution must prove, namely that the substance is a dangerous drug, that the accused had custody, control and possession of it, and that the accused had knowledge of its existence and nature amounting to mens rea possession, with the section 37(da) presumption arising where the weight exceeds the statutory threshold. In their defence the accused ran the case that they were no more than transporters for their employer and had no knowledge of the drugs, having merely been asked to carry items on the employer's behalf. The court, per Muniandy Kannyappan J, accepted this account as credible, noting that the employer, shown to be connected with dangerous drugs and under preventive detention, and the owner of the car were not called by the prosecution, which justified an adverse inference against it. Relying on the apex court's treatment of the innocent-carrier defence in Sathya Vello v PP, the court held that the accused had, on the balance of probabilities, rebutted the presumption of trafficking and had raised a reasonable doubt on mens rea possession, so that the doctrine of wilful blindness did not apply. Both accused were accordingly acquitted and discharged. The judgment is a useful illustration of the innocent-carrier defence and the rebuttal of the section 37(da) trafficking presumption.