CHE KU SAHABUDIN BIN CHE KU MAN

CHE KU SAHABUDIN BIN CHE KU MAN

Where prosecution proved the nature and quantity of drugs and established direct possession/control (proximity and custody), the statutory presumption under s.37(da)(xvi) applied; the trial court erred by revisiting its prima facie findings at the defence stage and by failing to determine whether the accused had rebutted the presumption on the balance of probabilities. The accused failed to rebut; convictions otherwise set aside or restored accordingly and appropriate sentences imposed.

Citation
T-05(SH)-588-12/2023 (Mahkamah Rayuan)
Parties
Accused/appellant: Che Ku Sahabudin bin Che Ku Man; Prosecution: Pendakwa Raya (Public Prosecutor)
Court
SH
Jurisdiction
Malaysia
Judgment Date
15 October 2025
Case Number
T-05(SH)-588-12/2023 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal (drug Offences) / Court of Appeal Judgment on Appeals From High Court Convictions and Acquittal
Outcome
Prosecution appeals allowed in part; High Court acquittal on Pertuduhan Pertama set aside and accused convicted; High Court reduction of Pertuduhan Kedua set aside and original trafficking charge restored and convicted; accused's appeal against Pertuduhan Ketiga dismissed and that conviction/sentence affirmed.
Legal Topics
Possession, Presumption of Trafficking (s.37(da)), Burden of Proof, Credibility of Police Evidence, Overt Act Requirement
Source Language
Malay/English
Criminal Law Drug Law Evidence Law Possession Presumption of Trafficking (s.37(da)) Burden of Proof Credibility of Police Evidence Overt Act Requirement

Case Brief

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Parties

Che Ku Sahabudin bin Che Ku Man

Accused/appellant

Pendakwa Raya (Public Prosecutor)

Prosecution

Procedural Posture

Criminal Appeal (drug Offences) / Court of Appeal Judgment on Appeals From High Court Convictions and Acquittal

Legal Issues

  1. 1 Whether prosecution proved possession and knowledge of methamphetamine and etizolam
  2. 2 Whether the statutory presumption of trafficking under s.37(da)(xvi) Dangerous Drugs Act 1952 was rebutted on balance of probabilities
  3. 3 Whether the High Court erred by revisiting its prima facie findings at the defence stage and by requiring additional witnesses to be called by the prosecution

Ratio Decidendi

Where prosecution proved the nature and quantity of drugs and established direct possession/control (proximity and custody), the statutory presumption under s.37(da)(xvi) applied; the trial court erred by revisiting its prima facie findings at the defence stage and by failing to determine whether the accused had rebutted the presumption on the balance of probabilities. The accused failed to rebut; convictions otherwise set aside or restored accordingly and appropriate sentences imposed.

Court Disposition

Prosecution appeals allowed in part; High Court acquittal on Pertuduhan Pertama set aside and accused convicted; High Court reduction of Pertuduhan Kedua set aside and original trafficking charge restored and convicted; accused's appeal against Pertuduhan Ketiga dismissed and that conviction/sentence affirmed.

Orders

  • Allow prosecution appeals and set aside High Court acquittal on Pertuduhan Pertama; convict accused of Pertuduhan Pertama under s.39B(1)(a) Dangerous Drugs Act 1952 read with s.39B(2)
  • Allow prosecution appeal and set aside High Court amendment of Pertuduhan Kedua: restore original charge under s.39B(1)(a) Dangerous Drugs Act 1952 and convict accused