Pendakwa Raya v Muhammad Rashid Bin Hamzah

Appellant(s): Pendakwa Raya

Respondent(s): Muhammad Rashid Bin Hamzah

• YA Datuk Azhahari Kamal bin Ramli
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Tuan Muniandy a/l Kannyappan

• The respondent was charged under s.39B(1)(a) of the Dangerous Drugs Act 1952 for alleged drug trafficking after police raided a hotel room, acting on a tip-off from an informer, and found 229.30 grams of methamphetamine in a bag on the bed where the respondent was found lying alone.
• At the close of the prosecution case, the High Court Judge acquitted the respondent without calling for his defence under s.180(2) of the Criminal Procedure Code, finding that the prosecution failed to establish a prima facie case, particularly as to custody, control and knowledge of the drugs.
• The defence had raised the theory that the informer, who had been in continuous contact with the raiding officer up until shortly before the raid, may have planted the drugs in the room, and the informer was not called as a witness despite defence notice.

• Whether the High Court misapplied the prima facie test under s.180 of the Criminal Procedure Code by weighing the defence's "planted evidence" theory against the prosecution's case rather than conducting a maximum evaluation of the prosecution's evidence.
• Whether the High Court erred in finding that the elements of custody, control and knowledge were not proven, given evidence that the respondent was the sole occupant of a locked room where drugs were found near him.
• Whether an adverse inference under s.114(g) of the Evidence Act 1950 was properly drawn against the prosecution for failing to call the informer, who was alleged to have acted as an agent provocateur, and whether the statutory presumption of trafficking under s.37(da) of the Dangerous Drugs Act 1952 could be invoked.

• The Court held that in cases where a raid is conducted based on a tip-off, the burden rests squarely on the prosecution to exclude the possibility of access by third parties, and this burden was not discharged given the unexplained involvement of the informer and the short 10-minute observation period before the raid.
• The Court affirmed that the failure to call the informer, a material witness whose role went beyond that of a mere informant and raised the possibility of evidence-planting or entrapment, justified the adverse inference under s.114(g) of the Evidence Act 1950, and that statutory protection under s.40 of the Dangerous Drugs Act 1952 could not shield such a witness from being called.
• The Court held that since the foundational element of exclusive custody and control collapsed due to the unresolved role of the informer, the presumption under s.37(d) could not be invoked, and following Alma Nudo Atenza v PP, double presumptions could not be stacked to invoke s.37(da); the appeal was accordingly dismissed and the acquittal upheld.