Azril Sani Bin Ramudin v Pendakwa Raya

Appellant(s): Azril Sani Bin Ramudin

Respondent(s):

• Pendakwa Raya
• [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Datuk Mohd Radzi Bin Abdul Hamid

• Two accused were jointly charged with trafficking in dangerous drugs (cannabis, 1,948.34g, and methamphetamine, 68.06g) under section 39B(1)(a) of the Dangerous Drugs Act 1952, after police found the drugs in an unsealed bag on the passenger-side floor of a rented Toyota Vios in which the first accused was the driver and the second accused was the passenger.
• At the close of the prosecution case, the High Court found a prima facie case against both accused based on direct possession and the statutory presumption of trafficking under section 37(da) of the ADB.
• At the close of the defence case, the High Court amended the charges against the first accused to lesser offences under sections 6 and 12(2) ADB (finding he had rebutted the trafficking presumption but not the possession element), convicted him accordingly, and acquitted the second accused entirely on the basis he was merely a passenger without knowledge of the drugs; two appeals were heard together — one by the first accused against his conviction/sentence, and one by the Prosecution against the amendment of charges and the acquittal of the second accused.

• Whether the trial judge erred in requiring proof of an "overt act" of trafficking notwithstanding the earlier invocation of the statutory presumption of trafficking under section 37(da) ADB, and whether the first accused had successfully rebutted that presumption on a balance of probabilities.
• Whether the evidence (proximity to the drugs, exclusive access to and use of the vehicle, and conduct in evading arrest) was sufficient to establish possession and knowledge against the first accused, and whether failure to call the vehicle's registered owner/renter warranted an adverse inference under section 114(g) of the Evidence Act 1950.
• Whether the trial judge's acquittal of the second accused, based on acceptance of his defence that he was merely a passenger without knowledge of the drugs, was correct, notwithstanding this defence was not put to prosecution witnesses during cross-examination.

• The Court of Appeal held that the trial judge had misdirected himself in law by requiring proof of an overt act of trafficking, since once the presumption of trafficking under section 37(da) ADB is invoked, the only task is to determine whether the accused rebutted it on a balance of probabilities; no separate proof of an overt act is required.
• The Court found that the first accused had failed to rebut the presumption of trafficking, set aside the High Court's amendment of the charges, restored the original section 39B(1)(a) charges, convicted the first accused thereunder, and sentenced him to life imprisonment and 12 strokes of whipping on each charge.
• The Court declined to disturb the acquittal of the second accused, holding that the trial judge had the benefit of audio-visual assessment of his testimony and there was no misdirection warranting appellate interference, notwithstanding the defence's inherent weakness and the failure to earlier put it to prosecution witnesses.