Al Bakhtiar bin Ab Samat v Public Prosecutor [2012] 4 MLJ 713 Evidence -- Similar fact evidence -- Admission of -- First charge was for possession of 30.40g of cannabis and second charge for trafficking dangerous drugs -- Whether any similarity in respect of both charges -Whether trial judge misdirected himself when acted on evidence of first charge to prove knowledge of trafficking charge -- Principles relating to similar fact evidence -- Evidence Act 1950 ss 14 & 15

1. Al Bakhtiar Ab. Samat v PP [2013] 7 CLJ 458.
The appellant appealed against the judgment of the trail court where the trial judge
convicted the appellant and sentenced to death for the offence of trafficking in 993.8
grammes of cannabis. At the same trial, the appellant was also charged for
possession of 30.40g of cannabis under s 6 of the Dangerous Drugs Act 1952 and
punishable under s 39A(1) of the same Act and he was found guilty and sentenced
to three years imprisonment and three strokes of rotan.
During the body search the police seized 5 plastic packets of cannabis from his
jeans pocket. This formed the subject matter of the charge under section 6 of the
Dangerous Drugs 26 Act 1952 for possession of 30.40 grammes of cannabis against
the appellant.
The prosecutor contended that the appellant retrieved a package containing the
cannabis during the house search and handed it over to an officer. This was the
subject matter of the trafficking charge of 993.8 grammes of cannabis.
The appellant challenged and claimed that he never had handed the cannabis to the
police and he had no knowledge of the said drugs. However, the officers found the
drugs by themselves in the room. The room was accessible to at least two or three
other persons. The drugs could have been placed there by these other persons or
could have belonged to his uncle, Kamil, a confirmed drug addict.
The trial court held that the fact that the appellant was arrested in respect of the
30.40 grammes cannabis found on him earlier attracted the application of section 15
of the Evidence Act, whereby, it imputed the appellant’s knowledge of the drugs.
One of the two issues raised by the appellant before the Court of Appeal was that
the trial judge misdirected himself when the learned trial judge acted on the evidence
of the first charge for possession of 30.40 grammes of cannabis as similar fact
evidence to prove knowledge in respect of the trafficking charge.
On the issue of similar fact evidence - whether there is similarity between the offence
of possession of 30.40 grammes of cannabis for which the appellant was arrested
earlier and charged and the present charge of trafficking in 993.8 grammes of the
same drug and whether similarity of the offences is a prerequisite.

2. The court of Appeal inter alia stated that before acting on the similar fact evidence
the trial judge must undertake a weighing exercise and ask whether the prejudicial
effect of that similar fact evidence would be outweighed by its probative value.
Further, it was held that the authorities are clear that the similarity test is not a
prerequisite for the admission of similar fact evidence. As the case was riddled with a
number of unsatisfactory features, the conviction recorded against the appellant was
unsafe.
The appeal was allowed and the conviction and sentence of the trafficking charge
was set aside. The appellant was acquitted and discharged.