b-05sh-370-09-2023 — TAY CHER BOON v Pendakwa Raya [Pendakwa Raya]

Catchwords

section 39B(1)(a) of the Dangerous Drugs Act 1952 - whether section 182A of the Criminal Procedure Code has been complied with? - fully considered the defence at the end of the defence case – whether the failure of the prosecution to offer the tenant of the premise to the defence has deprived the appellant to a fair trial? - section 37(b) Dangerous Drugs Act 1952 - adverse inference principle - section 114 (g) of the Evidence Act 1950 - he appellant had been denied a fair trial - the prosecution did not disclose to the appellant favourable facts - section 51A(1)(c) of the Criminal Procedure Code - the prosecution is duty bound in its promotion of a fair trial - the failure by the prosecution to disclose to the defence the documents was not fatal - merely an irregularity that had not occasioned any miscarriage of justice - section 37(d) of the Dangerous Drugs Act 1950 - the presumption of "deemed knowledge" and "deemed possession" - misapplication of the presumption is erroneous and prejudiced - imposed a higher burden to rebut that presumption and also a case of uncertainty - actual possession under section 37(da) of the Dangerous Drugs Act 1950 - the finding of trafficking by direct evidence under section 2 of the Dangerous Drugs Act 1950 - the evidential burden on the appellant is just to create a reasonable doubt on the prosecution's case - imposed a higher burden to rebut the presumption i.e. on a balance of probabilities in order to prove defence - three standards of proof - First: Beyond Reasonable Doubt - Second: Balance of Probabilities - Third: Creating a Reasonable Doubt - guilty of possession punishable under section 39A(2) of the Dangerous Drugs Act 1952

Judges (3)

Azman bin Abdullah Coram Azmi bin Ariffin Delivered Mohamed Zaini bin Mazlan Coram

Counsel (9)

Hisyam Teh (Kuala Lumpur) Firm Ee Men You Counsel Appellant Hisyam Teh Poh Teik Counsel Appellant Kee Wei Lon Counsel Appellant Khairuzzaman Ridha Counsel Appellant Low Wei Looke Counsel Appellant Siti Nazihah Tan Binti Amir Counsel Appellant Siti Summaiyah Binti Ahmad Jaafar Counsel Appellant Zaki Asyraf Bin Zubir Counsel Prosecution

Parties (2)

Pendakwa Raya Respondent Tay Cher Boon Appellant

Summary

This is the companion appeal to B-05(SH)-354-09/2023 involving the same appellant, Tay Cher Boon, on three trafficking charges for methamphetamine, ketamine and MDMA found at a house in Setia Alam. The Court of Appeal found the trafficking convictions unsafe due to misapplication of statutory presumptions and substituted them with possession convictions. The sentences were 12 years (methamphetamine and MDMA) and 3 years (ketamine), running concurrently.

What was the outcome of TAY CHER BOON v Pendakwa Raya [Pendakwa Raya]?

<p>This is the companion appeal to B-05(SH)-354-09/2023 involving the same appellant, Tay Cher Boon, on three trafficking charges for methamphetamine,...

Statutes Cited

Evidence Act 1950 (Cap 56)

Cases Cited (28)

SLR (3)

[1996] 1 SLR 510 [1998] 1 SLR 663 [1999] 2 SLR 637

MY (25)

[1963] 1 MLJ 263 [1972] 1 MLJ 122 [1979] 2 MLJ 304 [1987] 1 CLJ 250 [1987] 1 MLJ 492 [1988] 1 CLJ 283 [1988] 2 MLJ 53 [1996] 3 MLJ 560 [1997] 1 CLJ 233 [1998] 4 CLJ 655 [1998] 4 MLJ 697 [2009] 1 CLJ 717 [2009] 2 CLJ 800 [2010] 1 MLJ 741 [2013] 1 CLJ 632 [2013] 1 MLJ 342 [2014] 4 CLJ 406 [2016] 2 CLJ 247 [2017] 1 CLJ 617 [2019] 5 CLJ 23 [2019] 5 CLJ 93 [2019] 7 CLJ 27 [2019] MLJU 00282 [2022] 1 CLJ 491 [2022] 3 CLJ 230

TAY CHER BOON v Pendakwa Raya [Pendakwa Raya]