MOHD BUKHTI SHUKRAN BIN ABDUL RAHMAN [Jabatan Peguam Negara]

MOHD BUKHTI SHUKRAN BIN ABDUL RAHMAN [Jabatan Peguam Negara]

The Court allowed the appeals of the first and second appellants because the prosecution failed to prove common intention under s.34 Penal Code and therefore could not safely rely solely on proximity and surprise to activate the presumption under s.37(d) Dangerous Drugs Act 1952; the third appellant's conviction was...

Source-derived case information.

Citation
B-05(M)-384-09/2019 (Mahkamah Rayuan)
Parties
Appellant: Mohd Bukhti Shukran bin Abdul Rahman; Appellant: Saiful Adly bin Zakaria; Appellant: Azrul bin Alias; Respondent: Pendakwa Raya
Court
M
Jurisdiction
Malaysia
Judgment Date
28 February 2022
Case Number
B-05(M)-384-09/2019 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Court of Appeal Judgment on Appeal From High Court Conviction/sentence
Outcome
Appeal allowed in part: convictions and sentences of Perayu Pertama (Saiful Adly bin Zakaria) and Perayu Kedua (Azrul bin Alias) set aside and they are acquitted and discharged; appeal of Perayu Ketiga (Mohd Bukhti Shukran bin Abdul Rahman) dismissed and his conviction and death sentence affirmed.
Legal Topics
Possession, Distribution, Presumption of Possession and Knowledge S.37(d) Dangerous Drugs Act 1952, Common Intention S.34 Penal Code, Burden of Proof, Adverse Inference S.114(g) Evidence Act 1950
Criminal Law Drug Offences Evidence Possession Distribution Presumption of Possession and Knowledge S.37(d) Dangerous Drugs Act 1952 Common Intention S.34 Penal Code Burden of Proof +1 more

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Parties

Mohd Bukhti Shukran bin Abdul Rahman

Appellant

Saiful Adly bin Zakaria

Appellant

Azrul bin Alias

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal / Court of Appeal Judgment on Appeal From High Court Conviction/sentence

Legal Issues

  1. 1 Whether prosecution proved common intention under s.34 Penal Code to support reliance on s.37(d) presumption
  2. 2 Whether appellants rebutted the presumption of possession and knowledge under s.37(d) Dangerous Drugs Act 1952 on the balance of probabilities
  3. 3 Whether mere presence and proximity to drugs in a vehicle and surprise at arrest suffice to establish joint intention to traffic

Ratio Decidendi

The Court allowed the appeals of the first and second appellants because the prosecution failed to prove common intention under s.34 Penal Code and therefore could not safely rely solely on proximity and surprise to activate the presumption under s.37(d) Dangerous Drugs Act 1952; the third appellant's conviction was upheld because he had exclusive control of the loaned vehicle for about two months, failed to rebut the presumption of possession and knowledge, and the alleged third parties ('Boy' and 'Carlos') were not substantiated by evidence.

Court Disposition

Appeal allowed in part: convictions and sentences of Perayu Pertama (Saiful Adly bin Zakaria) and Perayu Kedua (Azrul bin Alias) set aside and they are acquitted and discharged; appeal of Perayu Ketiga (Mohd Bukhti Shukran bin Abdul Rahman) dismissed and his conviction and death sentence affirmed.

Orders

  • Convictions and sentences of Saiful Adly bin Zakaria and Azrul bin Alias quashed; they are acquitted and discharged
  • Conviction and sentence of Mohd Bukhti Shukran bin Abdul Rahman affirmed