2026 MarsdenLR 769

HIGH COURT MALAYA JOHOR BAHRU
KAN WENG HIN, J
PP – Appellant
Versus
JOHARI & ANOR AND ANOTHER CASE – Respondent
[Criminal Trial No: JA-45A-88-12/2021 & JA-45A-90-04/2022]

Constructive possession of drugs requires proof of both physical control and the mental element of knowledge. Where statutory presumptions arise, an accused can rebut them by raising reasonable doubt or showing a balance of probability that the presence of the substances was unknown or unauthorized.

Headnote:(A) Dangerous Drugs Act 1952 - Section 39B(1)(a) and (2) - Trafficking in dangerous drugs - Presumption of trafficking - Burden of proof.

(B) Criminal Procedure Code - Section 180 - Prima facie case - Evaluation of evidence at the close of the prosecution case.

(C) Penal Code - Section 34 - Common intention - Requirement of prior consent or pre-planning as a question of fact.

(D) Evidence Act 1950 - Section 8 - Conduct of parties - Section 27 - Discovery of facts in consequence of information - Section 118 - Competency of witnesses - Interested witnesses.

Facts of the case:
The prosecution charged the first and second accused with trafficking in a significant quantity of prohibited substances found inside containers in the boot of a vehicle. The first accused attempted to flee during the apprehension, while the second accused was observed operating the vehicle and opening the boot. The defense contended that the first accused was merely collecting the vehicle for a relative and that the second accused was a mechanic called to perform repairs, asserting a lack of knowledge regarding the presence of the substances.

Findings of Court:
The court found that the prosecution established a prima facie case against both accused regarding the primary charge. Upon trial, the first accused failed to rebut the statutory presumption of trafficking on a balance of probability, as his account of events was deemed an afterthought and contained inconsistencies. The second accused, however, successfully raised reasonable doubts through corroborated evidence regarding his occupation and the circumstances of his presence, effectively rebutting the presumption.

Issues: The main issues addressed were whether both accused were in possession of the drugs, whether the statutory presumption of trafficking was rebutted, and whether common intention was established.

Ratio Decidendi: Possession, for the purposes of the Act, includes constructive possession, requiring both physical control and the mental element of knowledge. While the first accused's conduct, including flight, demonstrated knowledge, the second accused's defense, supported by consistent third-party evidence, established an alternative explanation for his presence that was not disproved by the prosecution. The court emphasized that where two inferences can reasonably be drawn from the facts, the inference most favorable to the accused must be adopted.

Result: The first accused was found guilty, convicted, and sentenced to imprisonment for life and whipping. The second accused was acquitted and discharged.