Pendakwa Raya v 1. ) NG BOON KIAN 2. ) MOHAMMAD HAFIZ CHEAH BIN ABDULLAH 3. ) HU. RONG 4. ) TAN OANH TUYEN

Case Significance

Illustrates the practical effect of the rebuttable presumption of trafficking under the Dangerous Drugs Act 1952: an accused who gives credible evidence explaining his possession may displace the presumption and reduce his liability from trafficking to possession, even where the fact of possession is established.

This High Court decision in Kuala Lumpur arises from a consolidated criminal trial of four accused on an assortment of drug and poison charges, and this record focuses on how a trafficking charge came to be reduced to one of possession. Two of the accused had been charged, among other things, with trafficking in dangerous drugs, in furtherance of a common intention, and the prosecution relied on the statutory presumption of trafficking that arises once custody and control of a sufficient quantity of drugs is established. At the close of the prosecution case the court found that a prima facie case had been made out against these two accused and called on them to enter their defence. Both elected to give evidence on oath. Having heard their testimony and weighed it against the prosecution evidence, the court found that they had succeeded in rebutting the presumption of trafficking: while the evidence established that they were in possession of the drugs, it did not, once the presumption was displaced, prove that they were trafficking in them. The court therefore did not convict them of trafficking but instead found them guilty of the lesser offence of possession of dangerous drugs, and convicted them accordingly before proceeding to sentence. The court reached this conclusion only after weighing the sworn defence evidence against the whole of the prosecution case, treating the presumption not as a mere formality but as a burden that a credible and consistent explanation was capable of discharging. The judgment illustrates the practical effect of the rebuttable presumption of trafficking: an accused who gives credible evidence explaining his possession may displace the presumption and reduce his liability from trafficking to possession, even where the fact of possession itself is established. It is a useful example of the defence stage of a drug trial operating to narrow, rather than eliminate, criminal liability.