Pendakwa Raya v 1. ) Visvamurthy A/l Apparasamy 2. ) M Thiyagu A/l Murty 3. ) Sathiaselan A/l Ayakanu 4. ) Siah Chin Aun

Case Significance

A notable example of a court reducing a section 39B trafficking charge to possession under section 12(2) where the statutory presumption is displaced for want of trafficking indicators, and of proportionate sentencing under section 39A(2) where an exceptionally large quantity is coupled with no proven trafficking conduct.

This High Court trial at Ipoh, Perak, arose from one of the largest drug seizures to come before the court: 426.79 kilograms of methamphetamine recovered from a factory in Gopeng in December 2018. Four accused were jointly charged with trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952, read with section 34 of the Penal Code. At the close of the prosecution case the court found a prima facie case of trafficking and called on the accused to enter their defence, the recovery of the substantial quantity and the accused's presence in the rear compartment of the lorry where the drugs were concealed having triggered the statutory presumption of trafficking under section 37(da). Having heard the defence, however, the court held that trafficking had not been proved beyond a reasonable doubt: there were no repacking tools, no distribution indicators and no movement of the drugs for sale, and the possibility that a third party had some involvement, while not displacing the accused's custody, control and knowledge, meant the trafficking case fell short. What the evidence did establish beyond reasonable doubt was possession, namely custody, control and knowledge. Applying sections 158 and 169(2) of the Criminal Procedure Code, which permit conviction of an alternative offence supported by the facts, the court substituted a conviction for possession under section 12(2) of the Act, punishable under section 39A(2). On sentence, weighing the exceptionally large quantity against the absence of proven trafficking activity, the applicable sentencing range and the accused's ages of 33 to 46 and prospects of rehabilitation, the court sentenced each accused to 15 years' imprisonment and 12 strokes of the cane from the date of arrest. The judgment is a notable example of a reduction from trafficking to possession and of proportionate sentencing where a very large quantity is coupled with no proven trafficking conduct.