Pendakwa Raya v 1. ) CHUA HOCK BENG 2. ) LEE KEE TEIK

Case Significance

Illustrates that where co-accused are charged on a common-intention basis and one dies before trial, the prosecution must still prove the trafficking charges against the surviving accused beyond a reasonable doubt, failing which he is discharged and acquitted.

This High Court (Criminal) decision, delivered in Bahasa Malaysia, concerns a drug-trafficking prosecution in which two accused were originally charged jointly, in furtherance of a common intention under section 34 of the Penal Code, on multiple charges under the Dangerous Drugs Act 1952. Four related cases were tried together, comprising six charges of trafficking under section 39B(1)(a) and two charges under sections 12(2) and 39A(2) of the Act. The charges included trafficking in heroin and in a substantial quantity of methamphetamine found at a house in the early hours of the morning. Before the trial began, one of the two accused died, and the prosecution maintained all the charges against the surviving accused, amending them to reflect that the first accused, now deceased, had shared the alleged common intention. The court's task at the close of the case was to determine whether the prosecution had proved its case against the surviving accused beyond a reasonable doubt on the charges he faced. Having evaluated the whole of the evidence, the court concluded that it would not be safe to convict the surviving accused: the prosecution had failed to prove its case against him beyond a reasonable doubt. It accordingly ordered that the surviving accused be discharged and acquitted of the charges. The judgment illustrates that where accused are charged jointly on a common-intention basis and one dies before trial, the prosecution must still prove the case against the survivor to the criminal standard, and that a failure to do so results in a discharge and acquittal notwithstanding the quantities of drugs involved. The court's approach reflects that a common-intention charge does not lower the standard of proof, and that the quantity of drugs recovered, however large, cannot substitute for cogent proof that the surviving accused had the custody, control and knowledge, or the shared intention, the charges required. Where that proof was lacking at the close of the case, the safe course was to acquit rather than to convict on suspicion.