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

Case Significance

Illustrates that trafficking and related offences under the Dangerous Drugs Act 1952 each require proof beyond a reasonable doubt against the surviving accused where a co-accused charged on a common-intention basis has died, failing which the survivor is acquitted.

This High Court (Criminal) decision, delivered in Bahasa Malaysia, is one of a group of four related drug prosecutions tried together, and records the acquittal of the surviving accused. Two accused had originally been charged jointly, in furtherance of a common intention under section 34 of the Penal Code, on a total of six charges of trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952 and two charges under sections 12(2) and 39A(2) of the same Act, the charges arising from dangerous drugs — including heroin and a large quantity of methamphetamine — found at a residential address in the early hours of the morning. Before the trial began, one of the two accused died, and the prosecution elected to maintain all the charges against the surviving accused, amending them to reflect that the deceased had shared the alleged common intention. The court's task was to determine, on the charges the surviving accused faced, whether the prosecution had proved its case against him beyond a reasonable doubt. Having made a full evaluation of the whole of the evidence at the close of the case, the court concluded that it would not be safe to convict the surviving accused: the prosecution had failed to prove its case against him to the criminal standard. It accordingly ordered that the surviving accused be discharged and acquitted of the charges laid against him. The judgment illustrates that the offences under sections 39B(1)(a) and 12(2)/39A(2) of the Dangerous Drugs Act each require proof of the accused's involvement to the criminal standard, and that where two persons are charged on a common-intention basis and one dies before trial, the survivor may only be convicted on proof that meets that standard, failing which he is entitled to an acquittal. The court's approach confirms that suspicion, however strong, is not a substitute for proof, and that the burden never shifts from the prosecution at this stage.