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2011 MarsdenLR 3908
HIGH COURT MALAYA PETALING JAYA
PP – Appellant
Versus
YAW KIM LIONG & ANOR – Respondent
[Criminal Trial No: 45-238-2007 & 45-39-2008]
The prosecution must prove a prima facie case, establishing possession, control, and knowledge of drugs; failure to do so results in acquittal.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a), 39B(2), 12(2), and 12(3) - Criminal Procedure Code - Section 180 - Joint charges for drug trafficking and unlawful possession - Prosecution failed to prove a prima facie case against accused, lacking credible evidence to implicate them in the trafficking of dangerous drugs, resulting in acquittal. (Paras 5-6, 210)
(B) Burden of Proof - Prosecution failed to establish beyond reasonable doubt that the accused had knowledge and control of the drugs. (Paras 188-191)
(C) Common Intention - No evidence of pre-arranged plan among accused, thwarting the notion of a common intention to commit the crime. (Paras 206-209)
Facts of the case:
Two accused charged with drug trafficking and possession of dangerous drugs, with possession of MDMA and ketamine. The prosecution's case relied on circumstantial evidence and testimony from police officers.
Findings of Court:
The prosecution did not meet the required evidential burden to call the accused to defend their case.
Issues: The court addressed the adequacy of evidence supporting accusations of drug trafficking, the burden of proof on the prosecution, and the absence of a demonstrated common intention between the accused.
Ratio Decidendi: The court established a prima facie case must demonstrate credible evidence and satisfy the elements of possession and knowledge, which the prosecution failed to do.
Result: Accused are acquitted and discharged.
| Table of Content |
|---|
| 1. joint charges under dangerous drugs act. (Para 1 , 2 , 3) |
| 2. prosecution failed to prove the case. (Para 4 , 5 , 6) |
[1] There are 2 cases involving 2 accused persons. They were jointly charged with common intention with 2 counts of drug trafficking under s 39B(1)(a) of the Dangerous Drugs Act 1952 (the "DDA") punishable under s 39B(2) of the , and 1 count of unlawful drug possession under s 12(2) of the punishable under s 12(3) of the , read together with s 34 of the Penal Code (the "PC").
[2] The 1st count involved 795.4 grammes of 3, 4- Methylenedioxymethamphetamine (MDMA), a dangerous drug, as listed in the First Schedule of the DDA. The 2nd count involved 392.0 grammes of ketamine, a dangerous drug, as listed in the First Schedule of the . The 3rd count involved 1.6 grammes of methamphetamine, a dangerous drug as listed in the First Schedule of the .
[3] The offence of drug trafficking is punishable with the mandatory death penalty in s 39B(2) of the DDA. The offence of unlawful possession of 1.6 grammes of methamphetamine is punishable with a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both as provided in s 12(3) of the .
[4] The prosecution called 7 witnesses to adduce oral and documentary evidence against the 2 accused persons in order to establish a prima facie case against them as per the 3 counts. The 7 prosecution witnesses are as follows:
(1) PW1, ASP Norosid Bin Haji Mamat G/10766, the complainant who led the ambush party;
(2) PW2, C/Insp Azizan Bin Ganti I/14160, the 2nd Investigating Officer (the "2nd IO");
(3) PW3, ASP Loi Yew Lik I/14914, a member of the ambush party who arrested the 2nd accused;
(4) PW4, D/Sgt. Abdul Kadir Bin Ahmad, a member of the ambush party who arrested the 1st accused;
(5) PW5, Puan Hjh Shadiah Bte Mohammad, a government chemist who analyzed the substances suspected to contain dangerous drugs;
(6) PW6, D/Corp Dumeran Bin Yusof RF 89467, the Keeper of the Drugs Exhibits Store; and
(7) PW7, Insp Mohd Rafidzan Bin Mohd Nadzri I/17725, the 1st Investigating Officer (the "1st IO")
