Pendakwa Raya v 1. ) TIE SING HENG 2. ) DONNY TEO KEE CHUAN

Case Significance

Illustrates the rejection of a bare 'the drugs belonged to someone else' defence — unsupported beyond a photograph and a late, previously unmentioned witness — in a section 39B Dangerous Drugs Act 1952 trafficking trial, and the exercise of the reformed sentencing discretion away from the death penalty.

This decision of the High Court (Criminal Division) at Shah Alam records the trial of two accused jointly charged with trafficking in dangerous drugs — Nimetazepam — under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) read with section 34 of the Penal Code, the drugs having been found at a unit in Shah Alam. The accused claimed trial. At the close of the prosecution case the court, on a maximum evaluation of the evidence, found a prima facie case established and called on both accused to enter their defence.

A central plank of the defence was the assertion that the drugs belonged to another person, supported by reference to a photograph of the individual said to be the true owner, and the calling of a defence witness whose involvement had not previously surfaced in the case. The court scrutinised the credibility of that account: reliance merely on a photograph of an alleged real owner, and the belated production of a witness never earlier mentioned, did not raise a reasonable doubt on the prosecution case, and the accused failed to displace the inference of possession, custody and knowledge or to rebut the statutory presumption of trafficking. The court accordingly convicted both accused. On sentence, the prosecution — pointing to the very large volume of the consignment (on the evidence, tens of thousands of pills of considerable gross weight), which plainly indicated distribution, and to the gravity of drug trafficking as a menace to the nation — urged the death penalty, while the defence sought imprisonment for life with the minimum whipping. Weighing the mitigation against the aggravating factors under the reformed sentencing regime, the court took the view that the accused should be given an opportunity to return to society, declining to impose the death penalty in favour of a custodial sentence. The judgment illustrates the rejection of a bare "someone else's drugs" defence and the exercise of the reformed sentencing discretion.