Pendakwa Raya v YAP KIT SEONG

Case Significance

Shows the interaction between the statutory trafficking presumption under section 37(da)(xvi) of the Dangerous Drugs Act 1952 and the post-2023 sentencing discretion: an unsworn 'own use' defence that fails to rebut the presumption leads to conviction under section 39B(1)(a), and the court imposed 30 years' imprisonment and 12 strokes rather than death.

This High Court decision at Shah Alam is the trafficking limb of a joint criminal trial, registered under this case number and heard together with related possession charges against the same accused. The accused was charged that, on 18 May 2020 at premises in Kampung Baru Ampang, Selangor, he trafficked in dangerous drugs, namely methamphetamine of a net weight of 423.29 grams, an offence under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) punishable under section 39B(2). At the close of the prosecution case the accused was called to enter his defence and chose to give an unsworn statement from the dock. The pivotal issue was whether his account that the drugs were intended for his own personal use carried sufficient merit to displace the statutory presumption of trafficking arising under section 37(da)(xvi) of the Dangerous Drugs Act 1952 by reference to the weight of the drugs.

The court was not persuaded that the defence rebutted the presumption and convicted the accused of trafficking. Turning to sentence, it recognised that the Akta Pemansuhan Hukuman Mati Mandatori 2023 (the Abolition of Mandatory Death Penalty Act 2023) had removed the mandatory death penalty for the offence, leaving it a discretion to impose the statutory alternative of imprisonment and caning. Balancing the mitigation advanced by the accused against the aggravating factors pressed by the prosecution — which emphasised the public interest and the prevalence of such offences — the court imposed penjara 30 tahun dari tarikh ditangkap dan 12 sebatan (30 years' imprisonment from the date of arrest and 12 strokes of the cane), the imprisonment to run concurrently with the terms imposed on the accused's related possession charges. The judgment is a clear example of how the trafficking presumption operates alongside the exercise of the newly conferred sentencing discretion under the 2023 abolition legislation.