Mohd Jafri Bin Hussain v Public Prosecutor

Appellant(s): Mohd Jafri Bin Hussain

Respondent(s):

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

• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid
• YA Tuan Dean Wayne Daly

• The appellant was convicted in the High Court on two charges under section 39B(1)(a) of the Dangerous Drugs Act 1952: trafficking 6,510.8 grammes of methamphetamine found in a house, and trafficking 176.22 grammes of methamphetamine found in a car he was driving.
• Following his arrest in the vehicle, the appellant led police to the house, admitted (after statutory warning) that drugs were kept there, and personally pointed out the wardrobe where the larger quantity was concealed; a witness also identified him as the person managing the premises, though the tenancy agreement was in another person's name.
• The appellant was sentenced to 30 years' imprisonment and 12 strokes of whipping on each charge (concurrent), while two co-accused on the first charge were acquitted at the close of the prosecution case with no appeal by the Public Prosecutor.

• Whether the prosecution was required to prove exclusive possession of the drugs, or whether it sufficed to show the appellant had custody, control and knowledge notwithstanding possible access by third parties (e.g., other users of the vehicle, or the named tenant of the house).
• Whether the appellant's post-arrest conduct in leading police to the drugs and identifying their exact location was admissible and probative under section 8 of the Evidence Act 1950 as evidence of knowledge and possession.
• Whether the prosecution's failure to call the named tenant of the house as a witness warranted an adverse inference under section 114(g) of the Evidence Act 1950.

• The Court held that possession under the Dangerous Drugs Act need not be exclusive and may be joint; the prosecution need only prove that the accused had custody, control and knowledge of the drugs, not that no other person could have had access, applying Ghasem Hozouri Hassan and Denish a/l Madhavan.
• The Court found the appellant's sole occupation of the vehicle with drugs at the driver's footwell, and his conduct in voluntarily leading police to the exact location of concealed drugs in the house (relevant conduct under section 8 of the Evidence Act), together with independent evidence of his management of the premises, established possession and knowledge beyond reasonable doubt on both charges.
• The Court held the failure to call the named tenant did not warrant an adverse inference as his evidence was not indispensable given the cogent direct and circumstantial evidence already before the Court; the appeal against conviction and sentence was accordingly dismissed and both convictions and sentences affirmed.