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2011 MarsdenLR 957
FEDERAL COURT PUTRAJAYA
IBRAHIM MOHAMAD & ANOR – Appellant
Versus
PP – Respondent
[Criminal Appeal Nos: 05-101-2009(D) & 05-97-2009(D)]
Possession in drug trafficking requires evidence of knowledge and control; mere presence in a vehicle with drugs is insufficient for conviction.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a), 39B(2), 37(da), and 6 - Penal Code - Appeal against conviction for drug trafficking - Purchaser and passenger in a vehicle found with cannabis during police inspection - Court found insufficient evidence of possession and mens rea - Conviction for trafficking overturned, substituted with conviction for possession. (Paras 1-22)
(B) The essential element of possession in drug trafficking requires evidence that the accused knew of the controlled substance. Mere presence in the vehicle is not sufficient without corroborating evidence of exclusive control or knowledge. (Paras 6-9)
(C) The courts must consider alternative interpretations of the evidence and cannot rely solely on inferences drawn from a single fact. Conduct consistent with innocent behavior must also be evaluated. (Paras 16-21)
(D) The prosecution must exclude all reasonable doubts, particularly when the alleged evidence may point towards the involvement of other parties not presented in court. (Paras 10-13)
Facts of the case:
The appellants were charged under the Dangerous Drugs Act following their arrest in a vehicle containing cannabis. They fled the scene when approached by police. Their appeal centers on whether sufficient evidence of possession and mens rea was demonstrated.
Findings of Court:
The court found the convictions for trafficking were not safely supported by the evidence. It ruled that there was insufficient proof of possession and knowledge, concluding that the accusations of trafficking could not be sustained.
Issues: Whether the prosecution established beyond reasonable doubt that the appellants had knowledge and control over the drugs found in the vehicle.
Ratio Decidendi: The court emphasized that possession in drug offences necessitates clear evidence of knowledge, which was lacking in their case; mere presence does not equate to possession when multiple interpretations are possible.
Result: Appeal allowed; convictions for trafficking set aside and replaced with a conviction for possession, sentencing to twenty years imprisonment and whipping.
| Table of Content |
|---|
| 1. details of charges and initial case facts. (Para 1 , 2) |
| 2. trial court's conviction based on possession evidence. (Para 3 , 4) |
| 3. importance of proving mens rea in possession. (Para 5 , 6) |
| 4. question of custody and control without sufficient evidence. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 5. insufficient evidence to establish knowledge of drugs. (Para 14 , 15 , 16 , 17 , 18) |
| 6. consideration of conduct under evidence law. (Para 19 , 20 , 21) |
| 7. conclusion on appeal and new sentencing. (Para 22) |
[1] Both the appellants were jointly charged before the High Court at Kota Bharu in the State of Kelantan with an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") for trafficking in 38,499.68 grammes of cannabis ("the said drug") and punishable under s 39B(2) of the same Act read with s 34 of the Penal Code . They were tried and convicted by the High Court on the charge and sentenced to death. Their appeal before the Court of Appeal was heard and subsequently dismissed. They now appeal to this Court against the decision of the Court of Appeal dismissing their appeal. Before the High Court the first appellant, Ibrahim bin Mohamad was referred to and identified as the second accused and the second appellant, Azhar bin Mahamat as the first accused. We shall refer to them herein as they were before the High Court.
[2] The relevant facts of the prosecution's case are as follows:-
Acting on information received, a police raiding party led by PW4 stopped a car bearing the registration number CAC 9493 ("the vehicle") which was travelling from Jeli along KM100 of Kota Bharu/Grik road on 8 November 1999. It is the prosecution's case that the second accused as the passenger together with the driver of the vehicle, the first accused had ran away during the inspection of the said vehicle by PW4. The first accused and the second accused were subsequently apprehended. Both the accused and the vehicle were subsequently brought to PW4's office and upon further inspection PW4 discovered 40 transparent plastic packages suspected to be cannabis at the back seat rest of the vehicle. The Chemist (PW1) upon analysis confirmed these 40 transparent plastic packages contained cannabis as defined under s 2 of the Act.
[3] The learned trial judge of the High Court at the conclusion of the trial convicted both the accused and held that the prosecution had proved beyond reasonable doubt that the first accused and the second accused were in possession of the said drugs and the element of trafficking was proved by virtue of the fact that the weight of the said cannabis exceeds the statutory threshold under s 37(da)(vi) of the Act.
[4] The Court of Appeal in affirming the decision of the High Court had, inter alia, made the pertinent findings against both the accused that they were in custody and control of the said drugs by virtue of being in custody and control of the vehicle and that they had the knowledge of the said drugs by virtue of their conduct in running away from the scene of the crime.
[5] Both the accused in their petition of appeal before this Court had laid out several grounds of appeal. However, we invited learned counsel for the accused and the learned Deputy Public Prosecutor to focus their arguments in this appeal on the question of whether on the evidence adduced by the prosecution it can safely be concluded that both the accused had mens rea possession of the drugs in the vehicle independent of the statutory presumption under s 37(d) of the Act.
[6] It is trite law that possession is an important ingredient in the charge of trafficking. Unless there is direct evidence of trafficking, the prosecution must prove the ingredient of "possession" and the trial judge must make an affirmative finding of "possession" before the presumption of trafficking under s 37(da) of the Act can be invoked. (See the case of Muhammed Hassan v. PP , ).
[7] In the present case the only evidence which the learned trial judg
