TAN CHENG KIT v Pendakwa Raya

Case Significance

Illustrates how the elements of custody, control and knowledge in a drug-trafficking case may be established by circumstantial and forensic evidence such as access to the scene and DNA, and the operation of the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952.

This Court of Appeal decision at Putrajaya is one of three consolidated appeals against conviction arising from a prosecution at the Johor Bahru High Court on five charges, including a charge of trafficking in a dangerous drug, 3,4-methylenedioxymethamphetamine (MDMA) of a net weight of 545.35 grams, under section 39B(1)(a) of the Dangerous Drugs Act 1952, together with charges under section 12(2) of that Act and under the Poisons Act 1952. The offences were said to have been committed at a residential unit in Plentong, Johor Bahru. The central issue was whether the elements of custody, control and knowledge had been established against the appellant. The Court of Appeal found that the prosecution evidence on these elements was overwhelming: the appellant's access to the scene, and the discovery of the appellant's DNA at the place of the offence, connected the appellant to the drugs, and the appellant's conduct after arrest was treated as relevant under sections 8 and 9 of the Evidence Act 1950. The defence amounted to a bare denial and an afterthought, and the court was entitled to draw an adverse inference under section 114(g) of the Evidence Act 1950 where appropriate. The court held that the defence had failed to raise any reasonable doubt in the prosecution case and had failed to rebut the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952. It unanimously concluded that the appeal against conviction had no merit that would justify interfering with the trial judge's decision, held the conviction safe, and dismissed the appeal. The court's reasoning shows that a conviction may rest securely on a combination of circumstantial links to the scene and forensic evidence such as DNA, and that once the trafficking presumption is engaged the burden shifts to the accused to displace it. The judgment is a useful illustration of how custody, control and knowledge may be established by circumstantial and forensic evidence, and of the operation of the trafficking presumption under section 37(da).