Pendakwa Raya v 1. ) MUHAMAD SHAHRUL NAIM BIN MOHAMAD ZAIN 2. ) HASHIM TENDOT BIN ABDULLAH

Case Significance

Illustrates that mere presence as a guest at premises where drugs are found, without proof of possession, control or tenancy, will not sustain a trafficking charge, and that a failure to call a material witness with access to the premises may attract an adverse inference against the prosecution.

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 220.38 grams of methamphetamine, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 read with section 34 of the Penal Code, the drugs having been found in a condominium unit. At the close of the prosecution case the court had to decide, on a maximum evaluation of the evidence and in accordance with section 180(4) of the Criminal Procedure Code and the principles in Looi Kow Chai v PP, whether the prosecution had established a prima facie case — that is, evidence which, if unrebutted, would be sufficient to warrant a conviction. The prosecution's case depended on connecting the accused to the unit in which the drugs were found. The court found that connection wanting. The evidence showed that the accused were no more than guests at the unit, and there was no proof that either of them held the tenancy; an out-of-court statement by an agent, tendered to establish the tenancy, was insufficient to prove that fact in issue. The court also drew an adverse inference against the prosecution for its failure to call a witness who had access to the premises and who had himself been arrested, an omission that weakened an already thin case. Weighing these matters, the court held that the prosecution had failed to establish a prima facie case, so that the accused could not be called on to enter their defence. Exercising its power under section 180(2) of the Criminal Procedure Code, the court acquitted and discharged both accused without calling on them to defend themselves. The judgment illustrates that mere presence as a guest at premises where drugs are found, without proof of possession or control, will not sustain a trafficking charge.