NIA WAI KONG v Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Case Significance

Illustrates the use of the proviso to cure a section 114(g) misdirection where the conviction is otherwise safe, and the exercise of the re-sentencing discretion to substitute thirty years' imprisonment and whipping in a drug-trafficking case.

This Court of Appeal decision at Putrajaya concerns an appeal against conviction for drug trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), in respect of methamphetamine weighing 2,113.35 grams. The appellant had been tried in the High Court, where, at the close of the prosecution case, the judge found a prima facie case and called on the appellant to enter his defence; at the end of the trial he was convicted. On appeal he raised issues about whether the chain of evidence had been broken, whether there had been tampering with the exhibits, and whether he was an innocent carrier without knowledge of the drugs, the prosecution having relied in part on the concept of wilful blindness.

The court analysed the defence of innocent carrier and the trial judge's treatment of the appellant's knowledge, including the use of sections 8 and 14 of the Evidence Act 1950 on conduct and state of mind. It found that the defence version was an afterthought and a bare denial designed to negate knowledge, and that the appellant had failed to rebut the presumption of trafficking. On one point it accepted a criticism of the trial judge: it held that the adverse-inference presumption under section 114(g) of the Evidence Act 1950 ought not to have been invoked against the appellant for failing to call a witness, so that there was a misdirection to that extent.

Despite that misdirection, the court found ample evidence in the case to sustain the trial judge's finding that the appellant had failed to raise any reasonable doubt in the prosecution case, and it applied the proviso, holding that no substantial miscarriage of justice had occurred. It accordingly dismissed the appeal against conviction and affirmed the High Court's finding of guilt, while re-sentencing the appellant, setting aside the original sentence and substituting imprisonment for thirty years from the date of arrest together with twelve strokes of whipping. The judgment illustrates the application of the proviso to cure a section 114(g) misdirection where the conviction is otherwise safe, and the exercise of the re-sentencing discretion under the reformed penalty regime.