Kang Choo Kiang v Pendakwa Raya

k-05m-146-04-2022 Court of Appeal (Mahkamah Rayuan) 6 May 2024 • K-05(M)-146-04/2022 • 27 min read
14 cases cited (0 SG, 14 foreign)

Outcome

We find the conviction safe as there are no reasons for us to disturb those findings.

Quoted verbatim from the judgment of Court of Appeal (Mahkamah Rayuan) (k-05m-146-04-2022). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

S.39B(1)(a) DDA 1952 – Appeal against conviction and sentence – on 27 March 2022, the High Order that the Appellant was convicted and sentenced to death by hanging – the Accused appeal. Custody and control of the impugned drugs – the Appellant had custody and control of the car – presumption of knowledge under s.37(d) DDA properly applied. – “Ah Wai” defence unsubstantiated – no details or proof provided – deemed fabrication. Knowledge – the Appellant act of refusal to open the compartment and false claim about fertiliser supported inference of knowledge – claim of ignorance rejected — unreasonable for appellant not to know of hidden compartment after 2 years. Possession – inference of knowledge (PP v Denish Madhavan) – Chain of custody intact – exhibits properly marked and documented Trafficking element proven — drugs (51.37 kg) transported from Thailand – beyond personal use – weight discrepancy (2.15 kg) explained by different weighing methods – no doubt on drug identity. Trial judge’s factual findings upheld — no misdirection or error – omission to state presumption unrebutted did not prejudice appellant – standard applied favoured him. Sentence – the Appellant originally sentenced to death by the High Court, before Abolition of Mandatory Death Penalty Act 2023 - Appellant pray for life imprisonment + 12 strokes, respondent had no objection Conclusion – Held, appeal against conviction dismissed, conviction upheld – trial judge’s findings were sound, based on evidence and legal principles – Appeal against sentence allowed: death sentence replaced with 30 years’ imprisonment, effective from date of arrest – whipping is waived as the Appellant is over 50 years old.

Practice Areas

Criminal Procedure Criminal Law

Judges (3)

Ahmad Zaidi bin Ibrahim Coram Hadhariah bt Syed Ismail Coram Mohamed Zaini bin Mazlan Delivered

Counsel (5)

Attorney General's Chambers Firm Gooi & Azura Firm Belinda Low Counsel Appellant Chong Kak Sen Counsel Appellant How May Ling Counsel Respondent

Parties (2)

Pendakwa Raya Respondent Kang Choo Kiang Appellant

Statutes Cited

Dangerous Drugs Act 1952 (Cap 234)
Evidence Act 1950 (Cap 56)

Cases Cited (14)

MY (14)
[1981] 1 MLJ 64 [2006] 2 CLJ 129 [2009] 1 CLJ 601 [2009] 2 CLJ 209 [2009] 2 CLJ 800 [2009] 3 CLJ 733 [2009] 3 MLJ 151 [2013] 2 CLJ 383 [2013] 6 CLJ 945 [2014] 4 CLJ 406 [2014] 9 CLJ 915 [2016] 2 CLJ 62 [2018] 1 CLJ 647 [2024] 1 MLJ 501

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (k-05m-146-04-2022)