TAY CHER BOON v Pendakwa Raya

Case Significance

Shows an appellate court reducing three trafficking convictions to possession where the trafficking inference is unsafe, while re-sentencing on the possession that the evidence supports.

This Court of Appeal decision arises from a drug-trafficking prosecution in which the appellant and a co-accused (who died before the trial began) faced three amended charges of trafficking in dangerous drugs under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), read with seksyen 34 Kanun Keseksaan (section 34 of the Penal Code) for common intention. The three quantities were 313.72 grams of methamphetamine, 661.94 grams of ketamine, and 2,231.89 grams of 3,4-Methylenedioxymethamphetamine (MDMA), all found at a house in Setia Alam, Selangor. At the close of the defence case the trial judge in the High Court at Shah Alam convicted the appellant and imposed penjara seumur hidup dan dua belas sebatan (life imprisonment and twelve strokes of the cane) on each charge, the custodial terms to run concurrently from the date of arrest.

On appeal, the Court of Appeal re-examined the trafficking findings against the statutory framework the catchwords foreground: whether seksyen 182A Kanun Tatacara Jenayah (section 182A of the Criminal Procedure Code) had been complied with in fully considering the defence at the close of the case; the effect of the prosecution's failure to offer the tenant of the premises as a witness; the adverse-inference principle under seksyen 114(g) Akta Keterangan 1950 (section 114(g) of the Evidence Act 1950); and non-disclosure of favourable facts under seksyen 51A(1)(c) of the Criminal Procedure Code. The Court concluded that the trafficking convictions could not stand but that possession was made out.

The Court substituted convictions for possession: for the first and third charges, possession under seksyen 12(2) punishable under seksyen 39A(2), and for the second charge, possession under seksyen 12(2) punishable under seksyen 12(3) of the same Act. It then re-sentenced the appellant to twelve years' imprisonment and ten strokes on the first charge, three years' imprisonment on the second charge, and twelve years' imprisonment and ten strokes on the third charge, all custodial terms running concurrently from the date of arrest (14 February 2017). The judgment illustrates how an appellate court will reduce a trafficking conviction to simple possession where the trafficking inference is not safely established, while preserving liability for the possession that the evidence does support.