Shah Nasir Hussain v Pendakwa Raya

Appellant(s): Shah Nasir Hussain

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Azmi Bin Ariffin
• YA Datuk Noorin binti Badaruddin
• YA Datuk Meor Hashimi bin Abdul Hamid

• The appellant was charged under Section 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking 468.7 grams of dangerous drugs (Heroin and Monoacetylmorphines).
• The High Court found a prima facie case, applying the presumption under Section 37(d) DDA 1952 read with Section 2 DDA 1952 for the definition of trafficking, and called for the defence.
• The High Court subsequently convicted the appellant and sentenced him to life imprisonment (30 years) from the date of arrest, with no whipping due to his age. The appellant appealed against both the conviction and sentence.

• Whether the trial judge erred in failing to properly consider the defence's version of events, particularly regarding the actual location of drug discovery (on the appellant's person vs. a hotel room).
• Whether the trial judge erred in not applying the adverse inference under Section 114(g) of the Evidence Act 1950 against the prosecution for failing to call a material witness ("Nagea Bhut").
• Whether the absence of DNA/fingerprint analysis, CCTV footage, and the appellant's lack of resistance during arrest negated the element of knowledge or possession of the drugs.

• The Court of Appeal affirmed the High Court's finding that the drugs were found on the appellant's person, accepting the police witness's credible testimony as not "inherently improbable" and rejecting the defence's "cow jumping over the moon" argument.
• The Court held that the appellant's defence regarding the drugs belonging to "Nagea Bhut" and being found elsewhere was a bare denial and fabrication, further noting the appellant's incomplete "Alcontra Notice" which hindered police investigation into the alleged witness.
• The Court ruled that DNA/fingerprint analysis and CCTV evidence were merely corroborative and not essential where direct evidence of possession and control was clear, and the appellant's lack of resistance was not exculpatory given the circumstances of the arrest. The appeal against conviction and sentence was dismissed.