Pendakwa Raya v LEE ZUN MING

Case Significance

Illustrates the rebuttal of the statutory trafficking presumption under the Dangerous Drugs Act 1952: an accused who is proved to be in possession but shows only passive possession, with no overt act of trafficking and a premature arrest before any transfer, may be convicted of the lesser offence of possession — here attracting ten years' imprisonment and ten strokes under section 39A(2).

This High Court decision at Kuala Lumpur (Criminal Division), delivered by Judge Muniandy Kannyappan, concerns a drug-trafficking charge and the reduction of the conviction to one of possession where the trafficking presumption is rebutted. The accused was charged with trafficking in dangerous drugs, namely approximately 1,529 grams of methamphetamine, contrary to section 39B(1)(a) of the Dangerous Drugs Act 1952, after being apprehended having alighted from a car. The prosecution proved that the accused had the requisite knowledge and custody amounting to possession, which engaged the statutory presumption of trafficking by reference to the weight of the drugs.

The court held that, while the accused could not raise a reasonable doubt on the mens rea of possession, he had succeeded in rebutting the presumption of trafficking on the balance of probabilities. On the evidence, the accused was found to be only in passive possession of the drugs: there was no overt act of trafficking on his part, and he had, in effect, been arrested prematurely, before any transfer of possession of the drugs could take place. In those circumstances the court declined to convict of trafficking and instead found the accused guilty of the lesser offence of possession of a dangerous drug. It sentenced him to ten years' imprisonment, to commence from the date of his arrest, together with ten strokes of whipping as mandated by section 39A(2) of the Dangerous Drugs Act 1952. The court's reasoning draws a careful line between the fact of possession, which the prosecution proved, and the further inference of trafficking, which the statutory presumption supplies but which the accused was entitled to answer: by showing that he had done nothing beyond holding the drugs, and had been intercepted before any dealing could occur, he displaced the presumed intention to traffic. The judgment illustrates how an accused who is in possession may still rebut the trafficking presumption by showing only passive possession and no overt act of trafficking, resulting in conviction for the lesser offence of possession.