Alex bin Abdullah & Anor v Malaysia Maritim Enforcement Agency

Appellant(s):

• Alex Bin Abdullah
• Sofian Bin Abdullah

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Datuk Dr Shahnaz Binti Sulaiman
• YA Dato' Ahmad Shahrir B. Mohd Salleh
• YA Datuk Dean Wayne Daly

• Two Indonesian nationals were jointly charged with trafficking 173.89 grams of methamphetamine found in a small unregistered pump boat intercepted in Tawau waters, with the first accused as boatman and the second accused as the only other occupant.
• The second accused voluntarily retrieved and handed over the package containing the drugs when questioned by enforcement officers, while the first accused denied any knowledge of the package which had been received from a third party while he slept.
• The High Court convicted both accused of trafficking based on the statutory presumption under section 37(da)(xvi) of the Dangerous Drugs Act 1952, finding actual possession and a common intention under section 34 of the Penal Code, sentencing each to life imprisonment and 15 strokes.

• Whether the trial judge properly evaluated the circumstantial evidence against the first accused (proximity, alleged evasion, state of fear) before finding actual possession and invoking the presumption of trafficking against him.
• Whether the doctrine of wilful blindness was correctly applied to the second accused to establish knowledge of the drugs' nature, given his unchallenged evidence of suspicion, inquiry, and voluntary surrender of the package to authorities.
• Whether, if the presumption of trafficking could not be sustained for either accused, the evidence nonetheless supported a conviction for possession under section 37(d)/section 12(2) of the DDA, and whether common intention under section 34 of the Penal Code was made out.

• The Court held that the case against the first accused rested on circumstantial evidence (proximity, alleged evasion, fear) that did not form a complete chain proving knowledge, and that his fear and the boat's variable speed were equally consistent with innocent conduct by an undocumented foreign fisherman; his conviction was set aside and he was acquitted and discharged, with section 34 common intention also failing for lack of proof of concert.
• The Court found that the trial judge misdirected himself in applying the doctrine of wilful blindness to the second accused, as the evidence (open/conspicuous placement of the package, immediate voluntary surrender, disclosure of the source, and assistance to officers) was distinguishable from precedent and did not support a deliberate decision to avoid confirming the truth, meaning knowledge for trafficking purposes was not proved beyond reasonable doubt.
• The Court substituted the second accused's trafficking conviction with a conviction for possession under section 12(2)/39A(2) of the DDA, holding that his own admitted suspicion was sufficient to prevent him from rebutting the presumption of possession under section 37(d) on a balance of probabilities, and that there was no independent evidence of direct trafficking; he was sentenced to 8 years' imprisonment from the date of arrest and 10 strokes of whipping.