PENDAKWA RAYA Pendakwa Raya TERTUDUH MUHAMAD FAUZIE BIN MASRI
Catchwords
CRIMINAL LAW – Dangerous Drugs – Trafficking charge – Section 39(B) (1) (a) of the Dangerous Drugs Act 1952 -Whether accused had custody and control of the drugs – Whether accused had knowledge of the drugs – Accused driving motorcar alone at night – During the implementation of the Movement Control Order - Was asked to stop by the police - Police conducted inspection on the motorcar – Accused alone in the motorcar with no one else present – Drugs found inside two shopping bags on the back passenger seat – The two bags were visible and in proximity with the accused seated in the driver’s seat - Direct evidence of possession - Whether based on surrounding facts knowledge can be inferred – Accused’s defence – The motorcar belongs to a third party – Accused intended to buy the motorcar but the sale was not concluded – Seller came to the accused house to negotiate the sale – During that moment accused brother contacted him – Informing the accused that their parents cannot be contacted - Accused took the motorcar in the pretext of going for a test drive – To check on his parents staying alone at the neighboring town – Hence the accused has no knowledge of the bags at the back passenger seat and the drugs inside the bags - Inconsistencies on how the accused was detained at the place of incident - Between the evidence of the Raiding Officer compared with the evidence of another raiding team member – Sole piece of evidence that the accused bought the motorcar from the seller is from the Investigating Officer– No other supportive evidence – The seller of the motorcar not called by the Prosecution - Although statement recorded from him by the Investigating officer - Absence of DNA and fingerprint of the accused inside the motorcar and on the drug case exhibits - Whether there is a break in the chain of evidence – Based on the chemist inability to identify whether one of packets had a small incision made by the Raiding Officer - Conduct of the accused not running away and cooperating with the police consistent with his innocence - Whether presumption of trafficking under Section 37(da)(xvi) DDA, 1952 proven. CRIMINAL PROCEDURE - Defence – Whether the accused version of his defence is probable – Accused intended to buy the motorcar from a third party – But the sale could not be concluded due to the movement control order in place - Accused showed to the Investigating Officer where the third party is staying – Statement recorded by the Investigating Officer from the third party and the registered owner – Even before the accused statement was recorded – Whether the third party had possession of the motorcar before the incident – Whether the third party is the same person referred to by the Investigating Officer as the seller of the motorcar – The third party seller not called by the Prosecution - Neither offered to the accused at the end of the Prosecution’s case – Nor the statement of the seller of the motorcar furnished to the accused – Whether the accused version consistent with the prosecution’s case – Whether the accused’s defence is an afterthought – Whether failure by the Prosecution to offer the third party has effected the accused’s right to a fair trial – In these circumstances whether the accused can be convicted for an offence under Section 39B (1) (a) DDA 1952 – Whether based on the totality of the evidence, the accused ought to be convicted for a lesser offence under section 12(2) DDA 1952 punishable under section 39A(2) DDA 1952 – Charge amended pursuant to section 158 CPC – Read and explained to the accused. CRIMINAL PROCEDURE - Sentencing – Sentencing Trend – In cases where charge reduced from trafficking to possession - Between 15 to 20 years imprisonment - Mitigating factors – Aggravating factors – Public interest – Seriousness of the offence - Large quantity of drugs
Practice Areas
Judgment
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Read on eJudgmentSource: eJudgment (jb-45a-6-01-2022)