Razak Khan Bin Ibrahim Khan v Pendakwa Raya

Appellant(s): Razak Khan Bin Ibrahim Khan

Respondent(s): 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 with drug trafficking under Section 39B(1)(a) of the Dangerous Drugs Act 1952 after 19,656.3 grams of cannabis were found concealed in a specially hidden compartment in a bedroom of premises raided by police, where the appellant was found alone.
• The High Court convicted the appellant, relying on his physical proximity to the drugs, exclusive occupation of the locked premises, and a water bill registered in his name, and sentenced him to 30 years' imprisonment.
• The appellant's defence was that the premises was a homestay accessible to many people, that he merely stopped by to use the toilet, and that he had no knowledge of or involvement with the drugs found in the concealed compartment.

• Whether the trial judge erred in admitting evidence of the appellant's alleged gestures/information leading to discovery of the drugs under Section 27 of the Evidence Act 1950.
• Whether the trial judge erred by finding at the close of the prosecution's case that the statutory presumption under Section 37(g) of the Dangerous Drugs Act 1952 applied, but then failing to determine at the close of the defence case whether that presumption had been rebutted on a balance of probabilities, instead applying the lower "reasonable doubt" standard applicable to direct evidence cases.
• Whether such misdirection on the burden of proof constituted a fundamental procedural defect causing a miscarriage of justice, incapable of being cured by the proviso to Section 60(1) of the Courts of Judicature Act 1964.

• The Court held that the trial judge committed a serious misdirection in law by invoking the Section 37(g) presumption at the close of the prosecution case but then failing to assess whether the defence had rebutted it on a balance of probabilities, instead erroneously applying the reasonable doubt standard at the close of the defence case, following the principle in Jorge Crespo Gomez v PP that failure to elect and apply the correct presumption prejudices the accused's right to a fair trial.
• The Court distinguished this case from the Federal Court's decision in PP v Julasiri Akilmara, noting that here the trial judge had made an explicit finding on the applicable presumption at the prosecution stage, making the subsequent failure to apply it consistently a fatal error rather than a mere omission.
• The conviction and sentence under Section 39B(1)(a) were set aside; however, as the evidence overwhelmingly established possession, custody and control of the drugs, the Court substituted a conviction under Section 6 (punishable under Section 39A(2)) of the Act, and imposed a reduced sentence of 15 years' imprisonment from the date of arrest, with no whipping due to the appellant's age.