Heng Dahlia & Co.

On the court record

The firm's record illustrates the treatment of tactile perception as direct evidence under section 60(1)(c) of the Evidence Act 1950 in a child-sexual-offences prosecution, and the operation of the section 37(da) presumption of trafficking.

Heng Dahlia & Co. appears in the corpus as appellate counsel in serious criminal prosecutions, acting for appellants before the Court of Appeal (Mahkamah Rayuan) and the High Court (Mahkamah Tinggi) in both English and Bahasa Malaysia.

A notable matter concerns sexual offences against children. Acting for an appellant, the firm appeared in an appeal against a conviction under section 14(d) of the Sexual Offences Against Children Act 2017 for physical sexual assault by digital penetration, where the court examined whether the act constituted physical contact for a sexual purpose and whether all three elements of the offence were established. The appeal raised an interesting evidential question about the nature of direct evidence under section 60(1)(c) of the Evidence Act 1950, namely whether direct evidence is confined to visual perception or whether the physical sensation of penetration perceived through the sense of touch constitutes direct evidence, so that a cross-examination premised on visual perception did not undermine evidence founded on tactile perception.

The firm also acted for an appellant in a dangerous-drugs appeal under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), read with seksyen 12(2), where the court engaged the statutory presumption under seksyen 37(da)(xvi), the appellant's power to deal with the drugs as owner to the exclusion of others, the drugs having been found following the appellant's own direction and the key to the room being on him, and the countervailing inference under section 114(g) of the Evidence Act 1950 arising from the prosecution's failure to call a co-arrested friend, the court noting that the absence of the appellant's DNA on the drugs did not weaken the prosecution case.

The accused persons are referred to here by their procedural role. The firm's record is a criminal-appellate practice engaging child-protection and dangerous-drugs offences.