Mohd Hisyamuddin bin Hassan v Pendakwa Raya

Appellant(s): Mohd Hisyamuddin Bin Hassan

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Mohd Radzi Bin Abdul Hamid
• YA Dato' Nadzarin Bin Wok Nordin

• The appellant was charged jointly with five other accused persons for trafficking in 763.46 grams of Methamphetamine found in a bag under the driver's seat of a car he was driving, which was stopped during a police raid.
• At the close of the prosecution case, the High Court judge found a prima facie case against the appellant only (as driver of the vehicle), and acquitted the other five accused (foreign nationals found as passengers) without any appeal against their acquittal.
• The appellant's defence was that the car belonged to a third party ("Subuh") who had hired him to transport passengers, that he had installed audio equipment under the driver's seat making it impossible to hide the bag there, and that he fled the scene only because he feared arrest for transporting illegal immigrants, not because of the drugs.

• Whether the element of possession (knowledge, custody and control) of the dangerous drugs was proven against the appellant, given he was not the registered owner of the vehicle and no forensic evidence linked him directly to the bag.
• Whether the prosecution's failure to produce the vehicle at trial (having been disposed of following a forfeiture order under anti-trafficking legislation) was fatal to the prosecution's case, particularly regarding the appellant's claim that audio equipment occupied the space where the bag was allegedly hidden.
• Whether there was a reasonable possibility that the other accused persons (passengers) had placed or had access to the bag containing drugs, and whether the appellant had exclusive access to and control of the vehicle at the material time.

• The Court of Appeal held that possession/custody or control is not merely a matter of proximity or knowledge, but whether the accused had the power to deal with the drugs as if owner, and found the appellant's position as driver, the concealment of the bag under the driver's seat, and his flight from the raid were all consistent with knowledge and control of the drugs.
• The Court held that the prosecution's failure to produce the vehicle was not fatal, distinguishing this case from precedent where identification via photographs alone was insufficient; here there was no dispute as to the identity of the vehicle, and the police witnesses' evidence together with photographic exhibits were clear, consistent and sufficient to negate the appellant's claim of audio equipment occupying the space.
• The Court found no credible evidence that any of the other accused had brought the bag into the vehicle or had opportunity to hide it, and upheld the trial judge's findings that the appellant failed to rebut the presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952; the appeal against conviction and sentence was accordingly dismissed.