PANDITHAN A/L THANGARAJOO v Pendakwa Raya

Case Significance

Illustrates the operation of the section 37(d) presumption of trafficking under the Dangerous Drugs Act 1952 and the narrow scope of appellate intervention in criminal findings of fact, a conviction being affirmed where the presumption is not rebutted and the trial court is not shown to be plainly wrong.

This Court of Appeal decision disposes of three consolidated criminal appeals brought by the same appellant against convictions and sentences imposed by the High Court at Klang on drug charges, and this record relates to the first of them. The appellant had been convicted of offences under the Dangerous Drugs Act 1952, including trafficking under section 39B(1)(a), punishable under section 39B(2), and possession under section 12(2), punishable under section 39A(2). The prosecution's case at trial had relied, in part, on the statutory presumption of trafficking under section 37(d) of the Act, which operates once the foundational facts of custody and control of the drugs are established, casting on the accused the burden of proving that he was not trafficking. The appellant challenged his conviction, contending among other things that the evidence did not support the findings and that the trial had miscarried. Reviewing the record, the Court of Appeal found that the evidence of the prosecution witnesses was intact and that the defence had not succeeded in raising any reasonable doubt as to the truth of the prosecution case. Crucially, it held that the appellant had failed to rebut the presumption of trafficking under section 37(d), so that the element of trafficking was made out. Applying the settled principle that an appellate court will not interfere with a trial court's findings unless they are shown to be plainly wrong, and finding no such error and no failure of justice, the court concluded that there was no merit in the appeal against conviction. It held that the convictions were safe and ought to be affirmed, and it dismissed the appeal against both conviction and sentence, upholding the sentences imposed. The judgment illustrates the operation of the section 37(d) presumption of trafficking and the narrow scope of appellate intervention in criminal findings of fact.