Article Review

Citation:
T Vijayandran. 2012. Mens Rea Possession. Malayan Law Journal
Articles/2012/Volume 6
Basic Summary:
The article discuss about the possession of mens rea in offences related with custody and
control of drugs. The article attempts to assert that the ratio is per incurium on the
argument that mere proximity did not sufficient to the drug custody and control. In order
to constitute possession, three ingredients namely proximity, animus possedendi and
knowledge must be established by the prosecution.
In the case of Public Prosecutor V Abdul Rahman bin Akif [2012] 6 MLJ Ixiv, the court
held that if there is no reasonable explain, it arise strong inference of possession of the
contents of the package. The judge imputed the ingredient of knowledge to the driver
who was in sole occupancy of the car based on evidence that the three packages were
found hidden under the seats of the car. In this case, presence of the package and not
custody or control of the package thereby appearing to suggest that proximity to the drugs
per se without consideration of the existence of animus possidendi is sufficient to attract
the inference of knowledge. The case show that the mere proximity can lead to assume
the existence of knowledge.
The case of Public Prosecutor V Lim Hock Boon had clarified the position of the issue of
custody, control and knowledge of drugs found inside car. Element of knowledge was
established based on the fact of the case where the accused was seen driving his car
slowly in and out of an empty petrol station three or four times at 3.00 in the morning.
Upon being approached by the police, he was in a state of panic and was sweating.
Cannabis was found hidden under in respondents car.
The decision in Akifs case will derived from the case of Public Prosecutor V Kang Ho
Soh where the court held that if something be found, for example, in a bag which I am
carrying or in a box to which I hold the key, it is extremely reasonable to suppose, unless
I produce some satisfactory evidence to the contrary, that I know all about it. The author
disagree with the judgment derived from Kangs case. Things kept in a bag carried by a
person or a box to which the person has the key cannot be equated with things found in a
car because a car is usually left in the care of jockeys and also often left unattended in an
open public places making it extremely possible to gain access into the car by overinding
the locking mechanism.
In Warners case, evidence was led that the accused had assume physical control of the
package containing the drugs. The defence of the accused was that he mistakenly thought
that the package contained bottles of scent. In Abdul Rahman Akifs case, however, no
such evidence was led that the accused had assumed physical control of the packages.
Evidence was tendered that the package was found under the seats of the car driven by
the respondent and it contained cannabis.

Actus reus possession requires prove of knowledge of the existence of the substance in
close proximity with the accused in order to satisfy the requirement of animus possedendi.
Prove of close proximity without animus possedendi is not actus reus of possession.
Mens rea possession on the other hand, requires prove of knowledge of the nature of the
substance proven to be in actus reus possession of the accused. The degree of prove
within the beyond reasonable doubt standard must be set at the highest when the law
permits the taking of a life upon a conviction for trafficking based upon prove of
possession.
Hypotheses:
Vijayandran mentioned several expectations,
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