[ ] 1. ) MUHAMMAD AMIN 2. ) MOHD AZWAN BIN HANAFI 3. ) THIYAGU A/L A.PARAMASIVAM

[ ] 1. ) MUHAMMAD AMIN 2. ) MOHD AZWAN BIN HANAFI 3. ) THIYAGU A/L A.PARAMASIVAM

Prosecution failed to establish a prima facie case for trafficking under s39B(1)(a) because it did not prove that any accused had custody or control and knowledge of the concealed ketamine (they were at best momentary carriers or had no physical contact), there was no evidence of overt acts amounting to trafficking or a pre‑arranged common intention under s34 Penal Code; accordingly the accuseds were acquitted at the close of the prosecution.

Citation
BA-45A-111-10/2018 (Mahkamah Tinggi)
Parties
Prosecution: PENDAKWA RAYA; Accused: MUHAMMAD AMIN (OKT1); Accused: MOHD AZWAN BIN HANAFI (OKT2); Accused: THIYAGU A/L PARAMASIVAM (OKT3)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 December 2022
Case Number
BA-45A-111-10/2018 (Mahkamah Tinggi)
Procedural Posture
Criminal: Drug Trafficking / Decision at Close of Prosecution (acquittal)
Outcome
OKT1, OKT2 and OKT3 acquitted and discharged of both charges at the close of the prosecution
Legal Topics
Possession, Trafficking, Prima Facie Test, Chain of Custody, Common Intention (s34 Penal Code), Section 27 Evidence Act
Source Language
Malay/English
Criminal Law Drug Law Evidence Law Possession Trafficking Prima Facie Test Chain of Custody Common Intention (s34 Penal Code) +1 more

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Parties

PENDAKWA RAYA

Prosecution

MUHAMMAD AMIN (OKT1)

Accused

MOHD AZWAN BIN HANAFI (OKT2)

Accused

THIYAGU A/L PARAMASIVAM (OKT3)

Accused

Procedural Posture

Criminal: Drug Trafficking / Decision at Close of Prosecution (acquittal)

Legal Issues

  1. 1 Whether prima facie case established for trafficking under Section 39B(1)(a) Dangerous Drugs Act 1952
  2. 2 Whether accused had possession, custody or control and knowledge of the seized ketamine
  3. 3 Whether acts amounted to trafficking rather than mere possession or momentary custody

Ratio Decidendi

Prosecution failed to establish a prima facie case for trafficking under s39B(1)(a) because it did not prove that any accused had custody or control and knowledge of the concealed ketamine (they were at best momentary carriers or had no physical contact), there was no evidence of overt acts amounting to trafficking or a pre‑arranged common intention under s34 Penal Code; accordingly the accuseds were acquitted at the close of the prosecution.

Court Disposition

OKT1, OKT2 and OKT3 acquitted and discharged of both charges at the close of the prosecution

Orders

  • The three accused (OKT1, OKT2 and OKT3) are acquitted and discharged of both charges
  • No call to defence; prosecution failed to make out a prima facie case