Nik Mohd Afendi bin Nik Mustafah v Public Prosecutor

Appellant(s): Nik Mohd Afendi Bin Nik Mustafah

Respondent(s):

• Pendakwa Raya
• [Jabatan Peguam Negara]

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

• The appellant was convicted by the High Court under section 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking 175.1 grams of Methamphetamine found in a zip bag inside the dashboard of a Perodua Myvi, and was sentenced to 30 years' imprisonment and 12 strokes of whipping.
• Police raided a house following public tip-offs on drug activities, found the appellant alone in the living room attempting to flee, and recovered the car key and remote control from the pocket of the trousers he was wearing, which were then used to unlock the vehicle where the drugs were discovered.
• The appellant's defence was that he had borrowed the car shortly before the raid from a friend, that his girlfriend had locked the car and had access to it, and that several other persons (including the car rental company's owner, staff, and prior renters) had also had access to the vehicle before it came into his possession, raising doubt as to who placed the drugs in the dashboard.

• Whether the trial judge erred in finding that the appellant, rather than other persons with prior or concurrent access to the vehicle, had custody, control and knowledge of the drugs for the purposes of establishing possession and the presumption of trafficking under section 37(da)(xvi) of the Dangerous Drugs Act 1952.
• Whether the prosecution's failure to call the girlfriend and her child as witnesses created a gap in the prosecution case warranting an adverse inference under section 114(g) of the Evidence Act 1950.
• Whether the trial judge erred in failing to make an affirmative finding of possession at the close of the prosecution case before calling the appellant to enter his defence, and whether the appellant's attempt to flee was properly relied upon as evidence of knowledge under sections 8 and 9 of the Evidence Act 1950.

• The Court held that only the appellant had possession and control of the car key and remote control (found in his trouser pocket), and that he alone had knowledge of the drugs in the dashboard; the defence's suggestion that other persons with prior access could have placed the drugs was not believed.
• The Court found no adverse inference arose from the prosecution's failure to call the girlfriend or her child, as the prosecution's case was otherwise complete and cogent, and held that the trial judge had correctly made an affirmative finding of actual possession at the close of the prosecution case without relying on the statutory presumption under section 37(d).
• The Court held that the appellant's attempt to flee was relevant conduct under section 8 of the Evidence Act 1950 showing knowledge of the drugs, that the appellant failed to give a reasonable explanation under section 9, and accordingly dismissed the appeal against both conviction and sentence, affirming the conviction under section 39B(1)(a) and the sentence of 30 years' imprisonment and 12 strokes of whipping.