Pendakwa Raya v LOH KOON HAN

Case Significance

A clear illustration that momentary handling of a container, without proof of knowledge of its contents, falls short of possession in law, and that a case resting on the wavering, contradictory evidence of accomplice witnesses may fail to establish even a reduced possession charge beyond reasonable doubt.

This High Court decision in Kuala Lumpur sets out the reasons for acquitting an accused who had originally faced a drug-trafficking charge. He had been charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 in respect of a bag found in his physical possession containing 192.6 grams of methamphetamine — a weight well above the threshold at which the presumption of trafficking under section 37(da)(xvi) of the Act could have been invoked. Significantly, that presumption was not invoked, and at the close of the prosecution case the court ordered the accused to enter his defence to a reduced charge of drug possession under section 12(2). The accused's defence was that he had merely been holding the bag momentarily, at the request of another, without knowing that it contained drugs, so that he lacked the guilty knowledge necessary for possession in law. Weighing that account against the prosecution evidence, the court found that the accused had succeeded in raising a reasonable doubt. The prosecution's key witnesses, who were themselves accomplices, had given wavering, contradictory and inconsistent testimony, and the cumulative effect of those weaknesses undermined the case. The evidence pointed only to momentary custody of the bag while another person parked a car, which was insufficient to establish even the reduced possession charge. The court drew a firm distinction between physical custody of an object and possession in the legal sense, which additionally requires knowledge of the nature of what is held, and found that essential mental element wholly absent. Concluding that the accused had been wrongly charged while the actual accomplices went free, the court held that the prosecution had not proved its case beyond reasonable doubt and that the reduced charge was likewise unsustainable. The accused was accordingly acquitted and discharged. The judgment is a clear illustration of how momentary handling of a container, absent proof of knowledge of its contents, falls short of possession in law.