Mak Kwong Ming v Pendakwa Raya

Case Significance

A comprehensive appellate treatment of the recurring defences to a section 39B Dangerous Drugs Act 1952 trafficking charge — knowledge, innocent carriage, duress and the Alcontara notice — dismissing all six consolidated appeals under the principle that a trial court's findings will not be disturbed unless plainly wrong.

This decision of the Court of Appeal at Putrajaya is the last 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. Each of the six appellants had been convicted at the High Court at Shah Alam and 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 sixth appellant, decided together with the others on the common grounds they raised — absence of knowledge, ignorance of the true nature of the drugs, innocent carriage, duress, and the adequacy of the Alcontara notice and the consideration given to the defences.

Standing back from the individual grounds, the Court of Appeal's overarching task was to decide whether the High Court's findings should be disturbed. It reaffirmed the settled principle that an appellate court will not interfere with a trial court's findings of fact unless they are plainly wrong, and that its function is not to retry the case but to review the safety of the convictions. Working through the appellants' contentions, the court found that each had failed to raise a reasonable doubt on the ingredients of the offence and had failed to rebut the statutory presumption of trafficking on the balance of probabilities, and that the trial judge had properly evaluated the evidence and given the defences due consideration. It concluded that the prosecution had proved its case beyond reasonable doubt against all six and that there was no merit in the appeals warranting intervention. The court unanimously dismissed the appeals of all six appellants and affirmed the convictions under section 39B(1)(a). The judgment is a comprehensive appellate treatment of the recurring defences to a drug-trafficking charge and of the limited scope for disturbing a trial court's findings.