Mohd Razi bin Mohd Yasim & Ors v Pendakwa Raya

Appellant(s): Mohd Razi Bin Mohd Yasim

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid
• YA Datuk Meor Hashimi bin Abdul Hamid

• Three appellants were jointly charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 (read with section 34 of the Penal Code for common intention) for trafficking in 222.9 grams of cannabis, after police raided a house and found the appellants seated on the floor facing an open plastic bag containing drugs and drug-packaging paraphernalia.
• The High Court convicted all three appellants, relying on the statutory presumption of trafficking under section 37(da)(vi) of the Act (quantity exceeding 200 grams) and found that their proximity to the exposed drugs, coupled with other circumstantial factors, established possession and common intention.
• Each appellant's defence was a bare denial of knowledge, asserting the drugs were found under a bed (not in the open) and raising the possibility that an unidentified third party ("Yan"), or persons with access to the unlocked house, could have planted the drugs.

• Whether the trial judge erred in the evaluation of the conflicting prosecution and defence versions regarding the location and visibility of the drugs, and whether this evaluation of fact and witness credibility warranted appellate interference.
• Whether the appellants had discharged their evidentiary burden to raise a reasonable doubt by relying on the existence of an unidentified third party ("Yan") with access to the premises, without providing further particulars (the "Alcontara notice" requirement), and whether the prosecution's failure to call the informant gave rise to an adverse inference or suggested entrapment by an agent provocateur.
• Whether the quantity of cannabis, being only slightly above the statutory minimum under section 37(da) of the Act, was sufficient on its own to rebut the presumption of trafficking in the absence of any overt act of trafficking, and whether exclusive possession/access to the room was a necessary element of proof.

• The Court of Appeal held that appellate courts will not disturb findings of fact by a trial judge unless the evidence is grossly against the conviction or the inference drawn is unwarranted or against the weight of evidence; no such basis existed here, as the trial judge had properly evaluated the two competing versions and preferred the credible prosecution evidence.
• The Court held that the unsubstantiated reference to "Yan" did not meet the threshold of an Alcontara notice, and the absence of corroborating details meant the appellants failed to discharge their evidentiary burden; similarly, the lack of exclusive access to the unlocked premises did not, by itself, create reasonable doubt as to possession, following the principle in Chan Pean Leon v PP and Hemankumar a/l Subramaniam v PP that possession need not be exclusive.
• The Court clarified that a quantity of drugs only marginally exceeding the statutory presumption threshold under section 37(da) does not, by itself, rebut the presumption of trafficking absent further proof, and that no overt act of trafficking is statutorily required to invoke or sustain the presumption; accordingly, all three appeals against conviction and sentence were dismissed and the High Court's decision was affirmed.