Bahran bin A Kadis v Public Prosecutor

Appellant(s): Bahran Bin A Kadis

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Azmi Bin Ariffin
• YA Datuk Meor Hashimi bin Abdul Hamid
• YA Dato' Sri Mohd Radzi bin Harun

• The appellant was convicted by the High Court and sentenced to life imprisonment for trafficking in 1599.79 grams of cannabis found in a bedroom of his house during a police raid, under s. 39B(1)(a) of the Dangerous Drugs Act 1952.
• The drugs were found in two locations within a room occupied by the appellant and his wife: compressed blocks under the mattress and packets in a plastic bag hanging behind the door, while a separate quantity of cannabis unconnected to this charge was found outside the house on two other men.
• At trial, the appellant's defence—that two prosecution witnesses (who were arrested outside with separate drugs) had access to the room—was rejected as an afterthought since this was never put to those witnesses in cross-examination, and the trial judge found the appellant had failed to rebut the presumptions of possession and trafficking.

• Whether the trial judge erred in finding the appellant had custody and control of the drugs so as to invoke the presumption of possession under s. 37(d) of the DDA 1952, given contradictory evidence about access to the room.
• Whether the trial judge erred in accepting the evidence of the appellant's wife (an interested witness) despite it directly contradicting the unchallenged evidence of two other prosecution witnesses.
• Whether, even if possession was proved, the evidence established the separate element of an overt act of trafficking (as opposed to mere possession), following the two-tier analysis required by authorities such as Ong Ah Chuan and Mohamad Radhi Yaakob.

• The Court held that the trial judge did not err in accepting the wife's evidence despite her being an interested witness, as there is no rule requiring rejection of interested witness testimony where it has a ring of truth, and upheld the finding that the appellant had exclusive custody and control of the drugs found in his room.
• However, the Court found that the prosecution had failed to establish any overt act of trafficking (such as delivery or transfer of the drugs), and that the evidence only supported passive mens rea possession, meaning the trial judge erred in treating a finding of possession as automatically equating to trafficking.
• The Court set aside the conviction and sentence for trafficking under s. 39B(1)(a), substituted a conviction for possession under s. 6 (punishable under s. 39A(2)) of the DDA 1952, and imposed a sentence of 12 years' imprisonment, sparing whipping due to the appellant's age.