[Timbalan (TPR), Jabatan Peguam Negara] 1. ) FRANCIS XAVIER 2. ) GABRIELLINA JANE A/P DEVARAJ SAMUEL ABISHEGAM

[Timbalan (TPR), Jabatan Peguam Negara] 1. ) FRANCIS XAVIER 2. ) GABRIELLINA JANE A/P DEVARAJ SAMUEL ABISHEGAM

The High Court found the prosecution failed to establish a prima facie case: possession and mens rea were not proven given the drugs were in a borrowed car not exclusively controlled by the accused, material witnesses (car owner and intermediary) were not called (adverse inference under s114(g) Evidence Act), an unexplained ten‑hour gap in chain of custody undermined exhibit identity, investigation was inadequate and there was no evidence of common intention; accordingly the accused were acquitted and discharged under section 180 CPC.

Citation
WA-45A-21-04/2023 (Mahkamah Tinggi)
Parties
Prosecution: PUBLIC PROSECUTOR; Accused: FRANCIS XAVIER; Accused: GABRIELLINA JANE A/P DEVARAJ SAMUEL ABISHEGAM
Court
High Court
Jurisdiction
Malaysia
Judgment Date
3 September 2025
Case Number
WA-45A-21-04/2023 (Mahkamah Tinggi)
Procedural Posture
Criminal Trial — Drug Trafficking (dangerous Drugs Act) / Close of Prosecution; Accused Acquitted and Discharged by High Court; Appeal Initiated by Public Prosecutor to Court of Appeal
Outcome
Acquitted and discharged
Legal Topics
Possession and Mens Rea, Trafficking Presumption (weight Threshold), Chain of Custody, Adverse Inference for Failure to Call Witness, Common Intention (s34 Penal Code), Prima Facie Threshold and Section 180 CPC
Source Language
Malay/English
Criminal Law Evidence Drugs/narcotics Law Possession and Mens Rea Trafficking Presumption (weight Threshold) Chain of Custody Adverse Inference for Failure to Call Witness Common Intention (s34 Penal Code) +1 more

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Parties

PUBLIC PROSECUTOR

Prosecution

FRANCIS XAVIER

Accused

GABRIELLINA JANE A/P DEVARAJ SAMUEL ABISHEGAM

Accused

Procedural Posture

Criminal Trial — Drug Trafficking (dangerous Drugs Act) / Close of Prosecution; Accused Acquitted and Discharged by High Court; Appeal Initiated by Public Prosecutor to Court of Appeal

Legal Issues

  1. 1 Whether prosecution established a prima facie case for trafficking under s39B DDA
  2. 2 Whether accused had possession and requisite knowledge (mens rea) of drugs found in borrowed car
  3. 3 Whether presumption of trafficking under s37(da)(xvi) DDA applies

Ratio Decidendi

The High Court found the prosecution failed to establish a prima facie case: possession and mens rea were not proven given the drugs were in a borrowed car not exclusively controlled by the accused, material witnesses (car owner and intermediary) were not called (adverse inference under s114(g) Evidence Act), an unexplained ten‑hour gap in chain of custody undermined exhibit identity, investigation was inadequate and there was no evidence of common intention; accordingly the accused were acquitted and discharged under section 180 CPC.

Court Disposition

Acquitted and discharged

Orders

  • Accused Francis Xavier and Gabriellina Jane a/p Devaraj Samuel Abishegam acquitted and discharged pursuant to section 180(2) Criminal Procedure Code
  • No order to call accused to enter defence (prima facie not made)