Mohamad Syaiffulrizam Bin Busu v Public Prosecutor

Appellant(s): Mohamad Syaiffulrizam Bin Busu

Respondent(s): Pendakwa Raya

• YA Datuk Noorin binti Badaruddin
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Dato' Sri Mohd Radzi bin Harun

• The appellant was convicted in the High Court of trafficking in 74.81 grammes of methamphetamine under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("DDA"), and sentenced to life imprisonment and 12 strokes of whipping; related possession charges were also convicted but withdrawn on appeal.
• The trafficking charge arose from a sling bag (P41) containing methamphetamine and heroin recovered from a concealed space behind wooden boards in a hut, which the appellant led police to and personally retrieved after his arrest at a separate location.
• At trial, the appellant denied leading police to the hut or retrieving the bag, claiming police discovered it themselves, and called two witnesses whose evidence the trial judge found materially inconsistent with each other and with the appellant's account.

• Whether the prosecution established a prima facie case and proved possession, custody, control and knowledge of the drugs, particularly given the appellant's argument that the hut was accessible to other persons.
• Whether the trial judge erred in relying on information under s 27 of the Evidence Act 1950 to justify admission of part of a police statement (P12), after the prosecution had earlier agreed to exclude a confessionary portion and rely instead on s 8 of the Evidence Act.
• Whether the trial judge properly distinguished between direct/presumed possession and correctly applied the statutory presumption under s 37(da) of the DDA without reversing the burden of proof.

• The Court of Appeal held that the evidence of the appellant's conduct in leading police to the concealed location and personally retrieving the drugs was independently sufficient to establish possession and knowledge, regardless of the confessionary portion of P12, which the Court treated as wholly excluded, applying the principle from Pulukuri Kottaya v Emperor and Pang Chee Meng v Public Prosecutor that only the portion of a statement distinctly relating to a fact discovered is admissible.
• The Court found that mere access by other persons to the premises did not raise a reasonable doubt where there was no evidence any other person knew of the specific concealed location of the drugs; access to a hut is distinct from knowledge of a concealed item within it.
• The Court held there was no misdirection in the trial judge's application of the s 37(da) DDA presumption, no reversal of the burden of proof, and no error in evaluating the defence's inconsistent evidence; the appeal against conviction and sentence on the trafficking charge was dismissed and affirmed.