[ ] 1. ) AHMAD KHUSAIRY BIN MOHD ZUKI 2. ) ELFINA BINTI MUSTAFA

[ ] 1. ) AHMAD KHUSAIRY BIN MOHD ZUKI 2. ) ELFINA BINTI MUSTAFA

Prosecution proved the seized substance was methamphetamine and that the room where it was found was under accused 2's control, allowing a presumption of knowledge under s37(d) ADB, but failed to prove custody and control by accused 1; because the finding of possession for accused 2 relied on the statutory presumption, the prosecution could not validly invoke a further statutory presumption to prove trafficking (s37(da)/s39B), therefore no prima facie case for trafficking was made against accused 1 and the trafficking element was not proven beyond the permissible use of presumptions.

Citation
KA-45A-77-12/2019 (Mahkamah Tinggi)
Parties
Prosecution: Pendakwa Raya; Defendant 1: Ahmad Khusairy bin Mohd Zuki; Defendant 2: Elfina binti Mustafa
Court
High Court
Jurisdiction
Malaysia
Judgment Date
17 April 2024
Case Number
KA-45A-77-12/2019 (Mahkamah Tinggi)
Procedural Posture
Criminal Drug Trafficking / End of Prosecution Case (ruling on Prima Facie)
Outcome
Accused 1 (Ahmad Khusairy bin Mohd Zuki) discharged and acquitted at end of prosecution case; Accused 2 (Elfina binti Mustafa) ordered to enter defence on an amended possession charge under s12(2) read with s39A(2) ADB.
Legal Topics
Trafficking, Possession, Presumption of Knowledge, Prima Facie, Chain of Custody, Section 39 B ADB, Section 37 ADB, Section 34 Penal Code
Source Language
Malay/English
Criminal Law Drug Law Evidence Law Trafficking Possession Presumption of Knowledge Prima Facie Chain of Custody +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 16 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Pendakwa Raya

Prosecution

Ahmad Khusairy bin Mohd Zuki

Defendant 1

Elfina binti Mustafa

Defendant 2

Procedural Posture

Criminal Drug Trafficking / End of Prosecution Case (ruling on Prima Facie)

Legal Issues

  1. 1 Whether seized substance is a dangerous drug as listed in the First Schedule of the Dangerous Drugs Act 1952
  2. 2 Whether the drugs were in the custody, control and possession of each accused
  3. 3 Whether the accuseds trafficked in the drugs (element of distribution)

Ratio Decidendi

Prosecution proved the seized substance was methamphetamine and that the room where it was found was under accused 2's control, allowing a presumption of knowledge under s37(d) ADB, but failed to prove custody and control by accused 1; because the finding of possession for accused 2 relied on the statutory presumption, the prosecution could not validly invoke a further statutory presumption to prove trafficking (s37(da)/s39B), therefore no prima facie case for trafficking was made against accused 1 and the trafficking element was not proven beyond the permissible use of presumptions.

Court Disposition

Accused 1 (Ahmad Khusairy bin Mohd Zuki) discharged and acquitted at end of prosecution case; Accused 2 (Elfina binti Mustafa) ordered to enter defence on an amended possession charge under s12(2) read with s39A(2) ADB.

Orders

  • Accused 1 discharged and freed from the charge under s39B(1)(a) read with s34 Penal Code.
  • Accused 2 committed to defence to face amended charge under s12(2) Dangerous Drugs Act 1952 and punishable under s39A(2) Dangerous Drugs Act 1952.