Aw Fatt Sin v Pendakwa Raya

Case Significance

Illustrates that the section 37(da) presumption of trafficking is triggered once possession above the statutory threshold is proved, and that an innocent-carrier defence fails where suspicious circumstances and a deliberate failure to inquire support an inference of knowledge through wilful blindness.

This Court of Appeal decision concerns an appeal against a conviction for trafficking in dangerous drugs and the operation of the statutory presumption of trafficking. The appellant had been found in possession of 2,774.3 grams of methamphetamine, a quantity well above the threshold that triggers the presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952; the prosecution's evidence of custody, control and knowledge was sufficient to establish possession and so to trigger that rebuttable presumption, which the defence then bore the burden of rebutting on a balance of probabilities. The appellant's defence was that he was an innocent carrier, and that the drugs belonged to a third party he named as "Teh"; the trial judge found the information about this third party incomplete, insufficient and unsupported by any independent evidence, and correctly evaluated and rejected the defence. The trial judge inferred knowledge on the basis of wilful blindness: the appellant was aware of suspicious circumstances — including a high remuneration of RM5,000 for the delivery — had the opportunity to inspect the baggage, and deliberately failed to inquire, so that knowledge could properly be inferred. The Court of Appeal accepted that an overt act of trafficking need not be proved in every case, since possession coupled with knowledge is sufficient under the definition of trafficking, and that the evidence of carrying and concealment was adequate. Finding that the trial judge had correctly applied the presumption and the wilful-blindness doctrine and had not erred, the Court upheld the conviction. The judgment illustrates how the section 37(da) presumption operates once possession above the statutory threshold is proved, and how the innocent-carrier defence fails where wilful blindness supports an inference of knowledge. The court's reasoning confirms that the innocent-carrier defence cannot succeed on a bare assertion that the drugs belonged to an unidentified third party, and that a defendant who shuts his eyes to the obvious cannot escape the inference of knowledge that his own conduct invites; the presumption having been left unrebutted, the appellate court had no basis to disturb the conviction.