SATYAMOORTHY A/L SUNDRAMOORTHY v Pendakwa Raya

Case Significance

Confirms that a trial court must separately consider whether the defence has rebutted the trafficking presumption under section 37(da) of the Dangerous Drugs Act 1952 even if the possession presumption stands, and that failing to do so is a misdirection that can lead to a trafficking conviction being reduced to possession under section 39A(2).

This Court of Appeal decision concerns an appeal against a conviction and sentence for drug trafficking, and results in the charge being reduced to one of possession. The appellant had been charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 with trafficking 16.9 grams of a heroin and monoacetylmorphines mixture, found in the carrier of his motorcycle between his legs, at a petrol station in Damansara Damai, Petaling Jaya. The High Court convicted him and sentenced him to imprisonment of 30 years from the date of arrest and 12 strokes of the cane. On appeal, the Court of Appeal held that the trial judge had misdirected herself by non-direction: she had not addressed the statutory presumptions of possession under section 37(d) and, crucially, of trafficking under section 37(da), and had made no finding on whether the defence had rebutted them. Following Mohammad Radhi bin Yaakob v PP, the court held that even where the presumption of possession under section 37(d) remains unrebutted, the court must separately consider whether, on a balance of probabilities, the defence has rebutted the trafficking presumption under section 37(da). Reviewing the evidence, the court accepted that the appellant had possession of the drugs, but found that the circumstances supported possession rather than trafficking: he ran an arguable case that he was an innocent carrier of a sealed package whose contents were not visible, having been told it was Indian ginseng medicine, and he had been denied the chance to cross-examine the person who handed him the parcel, who was arrested only after the appellant identified him, while his mobile phone was never investigated for any dealing with a buyer. The court allowed the appeal in part, substituting the trafficking charge with a charge of possession under section 39A(2) of the Act, and sentenced the appellant to 10 years' imprisonment from the date of arrest and 10 strokes of the cane.