Lo Wei Ryh v Pendakwa Raya

Case Significance

Illustrates the burden on an accused to rebut the statutory trafficking presumption under the Dangerous Drugs Act 1952 on the balance of probabilities, and the deference an appellate court owes to a sound first-instance maximum evaluation of the evidence.

This decision of the Court of Appeal at Putrajaya forms part of six consolidated appeals against convictions under section 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking in a large quantity of methamphetamine seized in a single operation. All six appellants had been convicted at the High Court at Shah Alam and each sentenced to imprisonment for life (30 years) from the date of arrest together with 15 strokes of the rotan. This appeal is that of the fifth appellant, and it was heard with the others because the six raised overlapping issues on knowledge, innocent carriage, duress and the sufficiency of the notice given for third-party defences.

The unifying analytical thread across the appeals was the operation of the statutory presumption of trafficking and the standard the appellants had to meet to displace it. The Court of Appeal reaffirmed that once the prosecution establishes possession of the requisite quantity, the presumption of trafficking arises, and it falls to the accused to rebut it on the balance of probabilities; a defence that merely raises a possibility, or that is not made out on the evidence, will not suffice. Reviewing the High Court's treatment of this appellant's case, the court was satisfied that the trial judge had undertaken a proper, maximum evaluation of the evidence, had considered the defences advanced, and had correctly concluded that the appellant had neither raised a reasonable doubt on the elements of the offence nor rebutted the presumption. Finding the conviction safe and the prosecution's case proved beyond reasonable doubt, the court held there was no merit in the appeal warranting appellate interference. The appeal was dismissed and the conviction and sentence affirmed. The judgment illustrates the burden on an accused to rebut the trafficking presumption and the deference owed to a sound first-instance evaluation of the evidence.