Iun Chung Peng v Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Case Significance

Affirms a section 39B trafficking conviction founded on the accused's exclusive possession of the drugs, and commutes the death sentence to thirty years' imprisonment and whipping under the Abolition of Mandatory Death Penalty Act 2023.

This Court of Appeal decision concerns an appeal against conviction and sentence for trafficking in methamphetamine weighing 3,404.2 grams under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952). The accused had been arrested at an airport in possession of luggage found to contain the drugs, and at the conclusion of the trial in the High Court he was convicted and sentenced to death by hanging. He appealed on several grounds, including whether the prosecution had proved knowledge and possession, whether the statutory presumption of trafficking under section 37(da)(xvi) had been properly invoked, whether his defence of innocent carrier raised a reasonable doubt, whether a nodding gesture was admissible as an implied admission, whether wilful blindness applied, whether the failure to tender CCTV footage was fatal, and whether he had been prejudiced by the incompetence of his counsel.

The court found the case turned on the possession of the drugs in the luggage, which had been under the actual and exclusive possession and control of the appellant throughout, with no access afforded to any third party, a fact that was never disputed. On the strength of that evidentiary record, the trial judge could not be said to have been plainly wrong, and the conclusion of guilt was one that any properly constituted tribunal would have reached on the same facts. On the complaint of incompetent counsel, the court held that no specific prejudice or flagrant deficiency had been shown, so that ground did not disturb the safety of the conviction. It accordingly upheld the trial judge's findings and unanimously dismissed the appeal against conviction.

On sentence, the court exercised the discretion introduced by the Abolition of Mandatory Death Penalty Act 2023, and, having regard to that Act, commuted the death sentence to thirty years' imprisonment, running from the date of arrest, together with twelve strokes of whipping, allowing the appeal on sentence to that extent. The judgment illustrates the affirmation of a trafficking conviction founded on exclusive possession of the drugs, and the commutation of a death sentence under the reformed penalty regime.