PENDAKWA RAYA Pendakwa Raya TERTUDUH MUHAMMAD ISYRAF BIN ISMAIL
Catchwords
Criminal Law – Dangerous Drugs – Trafficking – Possession – Statutory presumptions – Whether prosecution proved prima facie case – Cannabis found in sling bag worn by accused and in box on floor of shared shop premises – Whether accused had exclusive possession of drugs in box – Whether knowledge inferred from conduct – Effect of gap in chain of custody – Value of scene photographs taken days after raid Criminal Procedure – Prima facie case – Maximum evaluation of prosecution evidence – Standard under section 180(4) Criminal Procedure Code – Credible evidence on each ingredient of offence – When accused called to enter defence – Acquittal without defence where evidence insufficient Dangerous Drugs Act 1952 – Section 12(2) – Possession of cannabis – Section 39B(1)(a) – Trafficking in cannabis – Section 37(d) – Presumption of possession – Section 37(da)(vi) – Presumption of trafficking for quantity exceeding 200g – Prohibition against stacking presumptions – Alma Nudo Atenza v PP applied – Need for credible evidence of basic facts before presumption invoked Evidence – Possession – Physical element (custody or control) and mental element (knowledge) – Sling bag worn on person denotes physical possession – Tan Lay Hwa v PP followed – Drugs in shared premises accessible to others – Exclusive possession not proved – Azizan bin Yahaya v PP applied – Proximity alone insufficient – Romi Amora bin Amir v PP applied Evidence – Conduct of accused – Shock and fear upon discovery of drugs – Admissible under section 8 Evidence Act 1950 – Evidentiary weight – Equivocal response where drugs not concealed on person – Distinguished from Parlan bin Dadeh v PP Evidence – Chain of custody – Gap in documentation between store keepers – No evidence of tampering – Identity of exhibits not compromised – Gunalan Ramachandran & Ors v PP applied – Administrative lapse not fatal to prosecution’s case at prima facie stage Evidence – Photographs – Scene photographs taken seven days after raid – Investigating officer’s concession that position of items could have changed – Limited probative value for establishing spatial relationship at time of offence
Practice Areas
Judges (1)
Judgment
Read the full judgment on the official Malaysia Courts portal.
Read on eJudgmentSource: eJudgment (ta-45a-2-02-2023)