Tay Cher Boon [ ]

Tay Cher Boon [ ]

The Court of Appeal found the trial judge had conflated presumed possession under s.37(d) DDA with direct possession and had not clearly elected or applied the correct standard; the conviction for trafficking under s.39B(1)(a) was unsafe on the evidence and therefore set aside; convictions were substituted for possession offences under s.12(2) DDA (first and third counts: Methamphetamine and MDMA; second count: Ketamine with sentencing under s.12(3)) and sentences reduced and ordered to run concurrently from date of arrest; failures alleged (non-calling of tenant and nondisclosure of cautioned remarks) were not found sufficiently prejudicial to disturb outcome but misapplication of...

Citation
B-05(SH)-354-09/2023 (Mahkamah Rayuan)
Parties
Appellant / Accused: Tay Cher Boon; Respondent / Public Prosecutor: Pendakwa Raya; Co Accused (deceased): Gan Hock Seng
Court
SH
Jurisdiction
Malaysia
Judgment Date
30 July 2025
Case Number
B-05(SH)-354-09/2023 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal (drug Offences) / Appeal Heard and Determined by the Court of Appeal; Conviction and Sentence Substituted
Outcome
Appeal allowed in part; original convictions for trafficking under s.39B(1)(a) set aside and substituted with convictions for possession under s.12(2) Dangerous Drugs Act 1952 (with one count sentenced under s.12(3)); sentences substituted as ordered below.
Legal Topics
Presumption of Possession Under S.37(d) Dangerous Drugs Act 1952, Trafficking Vs Possession (s.2 and S.39 B DDA 1952), Disclosure Obligations and S.51 A(1)(c) Criminal Procedure Code, Section 182 a Criminal Procedure Code (trial Consideration of All Evidence), Adverse Inference Under S.114(g) Evidence Act 1950, Search, Seizure and Chain of Custody
Source Language
Malay/English
Criminal Law Drugs Law Evidence Law Criminal Procedure Appeals Presumption of Possession Under S.37(d) Dangerous Drugs Act 1952 Trafficking Vs Possession (s.2 and S.39 B DDA 1952) Disclosure Obligations and S.51 A(1)(c) Criminal Procedure Code +3 more

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Parties

Tay Cher Boon

Appellant / Accused

Pendakwa Raya

Respondent / Public Prosecutor

Gan Hock Seng

Co Accused (deceased)

Procedural Posture

Criminal Appeal (drug Offences) / Appeal Heard and Determined by the Court of Appeal; Conviction and Sentence Substituted

Legal Issues

  1. 1 Whether the trial judge misapplied the statutory presumption under s.37(d) DDA 1952 and confused presumed possession with actual possession
  2. 2 Whether the trial judge failed to appreciate and evaluate the defence evidence in breach of s.182A Criminal Procedure Code
  3. 3 Whether prosecution's failure to call or offer the tenant and to disclose the deceased co-accused's cautioned statement/remarks prejudiced appellant's right to a fair trial

Ratio Decidendi

The Court of Appeal found the trial judge had conflated presumed possession under s.37(d) DDA with direct possession and had not clearly elected or applied the correct standard; the conviction for trafficking under s.39B(1)(a) was unsafe on the evidence and therefore set aside; convictions were substituted for possession offences under s.12(2) DDA (first and third counts: Methamphetamine and MDMA; second count: Ketamine with sentencing under s.12(3)) and sentences reduced and ordered to run concurrently from date of arrest; failures alleged (non-calling of tenant and nondisclosure of cautioned remarks) were not found sufficiently prejudicial to disturb outcome but misapplication of...

Court Disposition

Appeal allowed in part; original convictions for trafficking under s.39B(1)(a) set aside and substituted with convictions for possession under s.12(2) Dangerous Drugs Act 1952 (with one count sentenced under s.12(3)); sentences substituted as ordered below.

Orders

  • Original convictions and sentences for offences under s.39B(1)(a) Dangerous Drugs Act 1952 set aside.
  • Pertuduhan Pindaan Pertama (Methamphetamine 313.72g): substituted conviction for possession under s.12(2) DDA 1952; sentence 12 years imprisonment from 14 February 2017 and 10 strokes.