TAN CHENG KIT v Pendakwa Raya

Case Significance

Illustrates why a bare denial and an afterthought will not raise a reasonable doubt or rebut the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952 once the ingredients of possession are established, and the relevance of post-arrest conduct and an adverse inference under the Evidence Act 1950.

This Court of Appeal decision at Putrajaya is one of three consolidated appeals against conviction brought by an appellant prosecuted at the Johor Bahru High Court on five charges arising from events at a residential unit in Plentong, Johor Bahru, including trafficking in MDMA of a net weight of 545.35 grams under section 39B(1)(a) of the Dangerous Drugs Act 1952 and offences under section 12(2) of that Act and under the Poisons Act 1952. This appeal turns on the treatment of the defence and the inferences the court was entitled to draw. The appellant's answer to a strong prosecution case, resting on access to the scene and the discovery of the appellant's DNA there, was in substance a bare denial that the court found to be an afterthought. The Court of Appeal held that such a denial, unsupported by evidence capable of displacing the prosecution's proof of custody, control and knowledge, could not raise a reasonable doubt. It also considered the appellant's conduct after arrest as relevant fact under sections 8 and 9 of the Evidence Act 1950, and the availability of an adverse inference under section 114(g) of that Act. Crucially, the court held that the defence had failed to rebut the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952, which, once triggered, cast on the appellant the burden of displacing it on the balance of probabilities. Finding no basis to interfere with the trial judge's conclusions, the court held the conviction safe and unanimously dismissed the appeal against conviction. The court's reasoning shows that the statutory presumption, far from being a technicality, does real work: it converts proof of possession into a rebuttable case of trafficking, which a bare denial unsupported by evidence cannot answer. The judgment is a useful illustration of why a bare denial and an afterthought will not raise a reasonable doubt or rebut the section 37(da) trafficking presumption once the ingredients are established.