Pendakwa Raya v 1. ) SOON PING KIONG 2. ) MISS PRAKAT TACHAN

Case Significance

Illustrates how multiple related drug charges arising from a single operation are tried and sentenced together with concurrent terms, and the role of the section 114(g) adverse-inference argument where the defence attributes the drugs to a person the prosecution did not call.

This High Court decision at Shah Alam forms part of a group of drug prosecutions tried together arising from a single police operation on 17 November 2020 at a car service centre in Shah Alam, Selangor, in which two accused, one a foreign national, faced a series of charges concerning large quantities of methamphetamine. This file concerns one of the charges in that consolidated trial, on which both accused were dealt with together. The prosecution's case across the group of charges was built on the seizure of methamphetamine at and around the service centre premises, and the accused ran a common defence that the drugs belonged to another person who was in detention under the Akta Langkah-Langkah Pencegahan Khas 1985 (the Special Preventive Measures Act 1985). A recurring issue was whether the prosecution's failure to call that detained person, whose involvement the defence pointed to, attracted an adverse inference under section 114(g) of the Evidence Act 1950. Because the several charges were tried on a common body of evidence, the court had to weigh, in respect of each charge, whether the prosecution had proved that the accused were in possession of the seized drugs, with the custody, control and knowledge required, before any statutory presumption of trafficking could operate, and whether the defence pointing to the detained third party displaced that proof. Having evaluated the evidence on the charges tried together, the court convicted both accused, and on the charge under this file imposed a sentence of eight years' imprisonment from the date of arrest on 17 November 2020, to run concurrently with the sentences imposed on the accused in the related files, which included terms of life imprisonment on the more serious trafficking charges. The court structured the several sentences so that all the terms of imprisonment ran concurrently from the date of arrest, an approach that reflects the single operation from which the linked charges arose. The judgment is a useful illustration of how multiple related drug charges arising from a single operation are tried and sentenced together, with concurrent terms, and of the role of the section 114(g) adverse-inference argument where the defence attributes the drugs to a person the prosecution did not call.