Pendakwa Raya v 1. ) Michael Ting Siew Su 2. ) Robinson Anak Sumping

Case Significance

Illustrates the careful separation of possession from a shared trafficking intention in a joint drug charge, and the operation of the Radhi principle — a second accused acquitted where common intention was not proved beyond reasonable doubt, the first convicted only of the lesser possession offence.

This decision of the High Court (Criminal Division) at Kuala Lumpur records the trial of two accused jointly charged with drug trafficking under section 39B of the Dangerous Drugs Act 1952 on the basis of a common intention. Subjecting the prosecution's evidence to a maximum evaluation, the court found that the drugs, packaged so as to resemble high-class Chinese tea, had been within the physical control of both accused: they were arrested in close proximity to the drugs, were the sole holders of the access cards to the hotel room where the drugs were found, and had handled the drugs openly rather than concealing them. These findings established factual possession and control.

On the question of a shared trafficking intention, however, the court was not satisfied that the prosecution had proved common intention beyond reasonable doubt as against the second accused. Applying the principle associated with Radhi bin Yaakob — that a defence raised by an accused, including the assertion that another identified individual was the real trafficker, must be given proper judicial consideration — the court found the case against the second accused did not exclude that possibility to the requisite standard. The second accused was accordingly acquitted and discharged. As against the first accused, the court found the trafficking charge reduced to the lesser offence of drug possession, of which it convicted him. In mitigation the first accused pleaded his personal circumstances — that he was unmarried, in debt, in hardship, had been in remand since July 2020, had cooperated fully, and was a first offender — while the prosecution urged aggravating factors. Weighing these, and sentencing under the applicable provision of the Act, the court imposed 15 years' imprisonment effective from the date of arrest together with 10 strokes of the rotan. The judgment illustrates the careful separation of possession from a shared trafficking intention and the operation of the Radhi principle.