Pendakwa Raya v 1. ) FRANCIS XAVIER 2. ) GABRIELLINA JANE A/P DEVARAJ SAMUEL ABISHEGAM

Case Significance

Illustrates how, in a possession-based trafficking prosecution over drugs found in a borrowed vehicle, the prosecution's failure to call the owner and lender — coupled with an uninvestigated exculpatory disclosure — can defeat a prima facie case and lead to acquittal at the close of its case.

This High Court decision in Kuala Lumpur sets out the reasons for acquitting two accused persons at the close of the prosecution case in a drug-trafficking prosecution. They had been jointly charged with trafficking 184.7 grams of methamphetamine, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 read with section 34 of the Penal Code (common intention) and punishable under section 39B(2), which carries the death penalty or imprisonment for thirty years with whipping. The drugs were recovered from a car the accused had occupied only briefly; the vehicle had been borrowed, and the prosecution called neither the registered owner nor the person who had lent it. The court treated that omission as significant, drawing an adverse inference under section 114(g) of the Evidence Act 1950 against the prosecution for failing to produce material witnesses who could have spoken to possession and knowledge. The court also accepted that the second accused had, on the evidence, merely been given a lift by the first accused and had made a clear disclosure at the point of arrest that was never investigated, entitling both to the benefit of the doubt. Their conduct when confronted — remaining silent, showing no alarm and making no attempt to flee — was assessed as neutral and as consistent with innocence rather than guilt. Weighing these flaws cumulatively, the court held that the prosecution had not established a prima facie case on the ingredients of the charge, so that it was not called upon to put the accused on their defence. Both were accordingly acquitted and discharged without their defence being called, pursuant to section 180(2) of the Criminal Procedure Code. The judgment is a clear worked example of how the failure to call the owner and lender of a borrowed vehicle, combined with an uninvestigated exculpatory disclosure, can be fatal to a possession-based trafficking case.