Mohamad Danish Bin Abdullah v Pendakwa Raya

Appellant(s): Mohamad Danish Bin Abdullah

Respondent(s): Pendakwa Raya

• YA Dato' Azmi Bin Ariffin
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Datuk Meor Hashimi bin Abdul Hamid

• The appellant was tried jointly with a co-accused for trafficking in dangerous drugs (Methamphetamine, 22,399.6 grams) under section 39B(1)(a) of the Dangerous Drugs Act 1952, but the co-accused was acquitted at the close of the prosecution case while the appellant was called to enter his defence.
• The prosecution's case was that the appellant directed a lorry driver to collect boxes from two locations, was present when the boxes were handed over and loaded, and later assisted in unloading them at the delivery location where police intercepted the shipment and found drugs concealed within.
• The appellant's defence was that he was merely acting on the instructions of a third party ("Darren") and was an innocent carrier without knowledge of the drugs' contents, a defence the High Court rejected, convicting him and sentencing him to life imprisonment and 12 strokes of the cane.

• Whether the trial judge correctly evaluated the elements of custody and control necessary to invoke the statutory presumption of knowledge under section 37(d) of the Dangerous Drugs Act 1952.
• Whether the prosecution's failure to call or investigate the alleged real culprit ("Darren") constituted a material gap in the prosecution's case warranting an adverse inference under section 114(g) of the Evidence Act 1950.
• Whether the trial judge gave sufficient judicial appreciation to the defence's version of events.

• The Court held that custody and control were sufficiently proven through the appellant's conduct — directing the courier, being present at both the collection and delivery points, monitoring the transfer, and physically assisting in unloading the boxes — thereby properly triggering the presumption of knowledge under section 37(d), which the appellant failed to rebut on a balance of probabilities.
• The Court affirmed that for a charge under section 39B(1) of the Dangerous Drugs Act 1952, what must be proved is possession and control with knowledge, not ownership; thus, even if the drugs belonged to the third party, this did not exonerate the appellant, and the prosecution was not obliged to investigate the appellant's version implicating that third party.
• The Court found no basis for an adverse inference under section 114(g) of the Evidence Act 1950 since there was no suppression of material evidence by the prosecution, the third party had in fact been offered to the defence but not called, and the prosecution's witnesses were sufficient to establish the case beyond reasonable doubt; the appeal against both conviction and sentence was accordingly dismissed.