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2020 MarsdenLR 1409
COURT OF APPEAL PUTRAJAYA
ADIB NAFIS HASSANE NAFIS – Appellant
Versus
PP – Respondent
[Criminal Appeal No: B-05(SH)-612-12/2018]
Possession alone does not imply knowledge of trafficking; the prosecution must prove both possession and knowledge for a conviction under drug laws.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 6 and 39A(2) – The Appellant was convicted for possession of cannabis rather than trafficking, as there was insufficient evidence to establish trafficking – The prosecution must prove that the accused had knowledge of the drug's presence in his possession; mere possession alone does not imply trafficking. (Paras 1, 39, 46, 59, 90)
(B) Evidence Act 1950 – Section 114(g) – The requirement for the defence to call Anwar as a witness and the prosecution's failure to ensure his availability does not constitute grounds for overturning the conviction – The burden of proof lies with the prosecution, and failure to challenge the prosecution's witnesses' testimony about possession means the defence failed to raise reasonable doubt. (Paras 43, 58, 88)
Facts of the case: The Appellant was charged with drug trafficking but was convicted for possession of cannabis weighing 479 grams found in his bag during a police raid. Despite asserting the bag was not his, the court found he had possession and knowledge based on his conduct and proximity to the substance. (Paras 1, 6, 8, 40)
Findings of Court: The Appellant was found guilty of possession of a controlled substance, with the conviction based on the fact that the Appellant was present with the bag containing the drugs. The court found that reasonable doubt was not raised pertaining to his knowledge of the drug. (Paras 39, 90)
Issues: The main issues addressed were whether the Appellant's conviction was justified given that the prosecution failed to make a key witness available and the implications of requiring the defence to call this witness. (Paras 43, 58)
Ratio Decidendi: The court ruled that mere possession does not infer trafficking and highlighted that the knowledge of a drug's presence must be proven. The court also noted that the defence failed to challenge the prosecution's claims adequately. (Paras 58, 90)
Result: The appeal was dismissed, and the conviction for possession was affirmed.
Introduction
[1] At the High Court the Appellant was charged for drug trafficking under s 39B(1)(a) Dangerous Drugs Act 1952 ("the Act"). The High Court convicted and sentenced him not on trafficking but merely on possession of the drug under s 6 of the Act, punishable under s 39A(2) of the same Act. He appealed against that conviction and sentence. We heard the appeal and decided to dismiss the same. This written judgment sets out our reasons in doing so.
The Amended Charge
[2] The amended charge against the Appellant reads;
Bahawa kamu pada 21 April 2016 jam lebih kurang 12.15 tengah malam di bawah Blok C, Neo Damansara, Damansara Perdana, Petaling Jaya, dalam daerah Petaling, di dalam Negeri Selangor telah mengedar dadah berbahaya seberat 479 gram cannabis. Oleh yang demikian kamu telah melakukan kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B (2) Akta yang sama.
[3] The other amended charge against the Appellant was in respect of trafficking of cannabis found in the Appellant's rented apartment. However this is irrelevant now in view of the fact the Appellant was acquitted and discharged in respect of this charge. The prosecution too chose not to appeal in respect of this decision by the High Court. Therefore facts pertaining to this particular charge need not be alluded in this written judgment. In turn, we would focus our attention only to the amended charge narrated above which is the subject matter of the present appeal.
The Prosecution's Case
[4] On the date and around the time stipulated on the amended charge, a police officer ("PW 3"), who is the raiding officer with a few other police officers brought three persons arrested earlier to the place mentioned in the charge. They were:
(a) Anwaruddin bin Mohd Izzudin ("Anwar");
(b) Mohd Nizam bin Ali ("DW 2") and
(c) Intan Najuwa bt Abd Wahid ("Intan").
[5] They all had gone there acting on the information given by Anwar. Arriving there the three above were ordered to stay in the police van. The Appellant then was seen at the lobby of Blok C, Neo Damansara, Damansara Perdana, Petaling Jaya, the place mentioned in the charge.
[6] PW 3 with other police officers then approached and introduced himself as a police officer to the Appellant. The Appellant turned pale and was in shock. The Appellant was carrying a sling bag, which later was marked as exhibit P11A. The bag was searched and the cannabis stated in the charge was found in the bag. Later PW 5, the chemist confirmed the substance found was cannabis with the weight as stated in the amended charge.
[7] Soon after the Appellant was arrested, he was gathered by the police together with Anwar, DW 2 and Intan.
Findings At The End Of The Prosecution's Case
[8] The learned High Court Judge (HCJ) found a prima facie case at the end of the prosecution's case. The evidence of PW 3 was comprehensive and he was accepted by the learned HCJ as a truthful and reliable witness. The reaction of the Appellant has a nexus to the fact in issue and giving an inference he had knowledge of the drug in the bag. The conduct of the Appellant is a relevant fact under s 8 of the Evidence Act 1950 (" EA ") which warranted an explanation of the Appellant under s 9 of the same.
[9] Considering the evidence tendered by the prosecution, the learned HCJ was satisfied that had the Appellant remained silent based on the prosecution's case, there would be no choice but to convict the Appellant. Therefore the learned HCJ called the Appellant to enter defence.
Defence
[10] There were two witnesses for the defence before the learned HCJ. The Appellant himself and DW 2.
[11] The Appellant testified that he received two calls from Anwar before he was arrested. First, asking him to take Anwar's bag in the Appellant's apartment and meet Anwar and second, asking him to wait at the lobby of the apartment as per the address mentioned in the charge and hand over the bag to DW 2 who was Anwar's driver.
[12] The Appell
