TAI HUN CHEAN v Pendakwa Raya

Case Significance

Illustrates the appellate treatment of custody, control and knowledge and the section 37(da) trafficking presumption under the Dangerous Drugs Act 1952, affirming a conviction and life sentence where the presumption was not rebutted.

This Court of Appeal decision concerns an appeal against a conviction and sentence for trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952 ("Akta Dadah Berbahaya 1952"), punishable under section 39B(2). The appellant had been charged with trafficking 3,171 grams of methamphetamine found at a car park in Shah Alam. He claimed trial; the prosecution called six witnesses and the High Court found a prima facie case and called the defence, after which the appellant gave sworn evidence and called three further witnesses. The High Court convicted him and imposed a sentence of life imprisonment (30 years) from the date of arrest together with 12 strokes of the cane ("pemenjaraan seumur hidup (30 tahun) dari tarikh tangkap dan 12 kali sebatan"). On appeal, the issues included whether the appellant had custody, control and knowledge of the seized drugs; the relevance under sections 8 and 9 of the Evidence Act 1950 of his conduct at arrest; whether the failure to call other named persons attracted an adverse inference under section 114(g) of the Evidence Act; the protection given to informers under section 40 of the Dangerous Drugs Act; and whether the appellant had rebutted the statutory presumption of trafficking under section 37(da). The Court found the prosecution witnesses credible and reliable, that there had been no failure to investigate, and that the conviction rested on direct and circumstantial evidence rather than on inadmissible or hearsay material. It held that the defence had failed to rebut the section 37(da) presumption of trafficking on a balance of probabilities and that the prosecution had proved its case beyond reasonable doubt. The Court unanimously dismissed the appeal and affirmed the conviction and sentence. The judgment illustrates the appellate treatment of possession, knowledge and the trafficking presumption in a drug prosecution. The Court added that section 40 of the Dangerous Drugs Act protected the identity of the informer, and that no adverse inference under section 114(g) of the Evidence Act 1950 arose from the prosecution's decision not to call certain other named persons.