Hemankumar a/l Subramaniam

Hemankumar a/l Subramaniam

The Court held that the trial judge's use of a double presumption (invoking s37(da) on the basis of presumed possession under s37(d)) was legally untenable; however, on the facts (key seized from appellant, locked room opened by that key, appellant led police to the room, appellant's personal items in the room, and admissible s27 information) possession and knowledge were proved on the evidence; accordingly the appeal was allowed, the conviction under s39B(1)(a) set aside and substituted with a conviction for possession under s12(2) read with s39A(2) of the Dangerous Drugs Act 1952 with penalty imposed.

Citation
K-05(M)-244-06/2017 (Mahkamah Rayuan)
Parties
Appellant: Hemankumar a/l Subramaniam; Respondent: Pendakwa Raya
Court
M
Jurisdiction
Malaysia
Judgment Date
7 August 2019
Case Number
K-05(M)-244-06/2017 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal (drug Trafficking) / Court of Appeal Judgment (appeal Allowed; Substitution of Conviction)
Outcome
Appeal allowed; conviction under section 39B(1)(a) set aside and substituted with conviction under section 12(2) read with section 39A(2) of the Dangerous Drugs Act 1952.
Legal Topics
Possession, Trafficking, Presumptions of Possession and Trafficking, Admissibility Under Section 27 Evidence Act 1950, Chain of Custody, Sentencing
Source Language
Malay/English
Criminal Law Drugs Law Evidence Law Possession Trafficking Presumptions of Possession and Trafficking Admissibility Under Section 27 Evidence Act 1950 Chain of Custody +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 19 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Hemankumar a/l Subramaniam

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal (drug Trafficking) / Court of Appeal Judgment (appeal Allowed; Substitution of Conviction)

Legal Issues

  1. 1 Whether the trial judge improperly applied a double presumption by using s37(d) to invoke s37(da) of the Dangerous Drugs Act 1952
  2. 2 Whether the prosecution proved possession (custody and control and knowledge) necessary to sustain a trafficking conviction

Ratio Decidendi

The Court held that the trial judge's use of a double presumption (invoking s37(da) on the basis of presumed possession under s37(d)) was legally untenable; however, on the facts (key seized from appellant, locked room opened by that key, appellant led police to the room, appellant's personal items in the room, and admissible s27 information) possession and knowledge were proved on the evidence; accordingly the appeal was allowed, the conviction under s39B(1)(a) set aside and substituted with a conviction for possession under s12(2) read with s39A(2) of the Dangerous Drugs Act 1952 with penalty imposed.

Court Disposition

Appeal allowed; conviction under section 39B(1)(a) set aside and substituted with conviction under section 12(2) read with section 39A(2) of the Dangerous Drugs Act 1952.

Orders

  • Set aside conviction under section 39B(1)(a) of the Dangerous Drugs Act 1952
  • Substituted conviction entered under section 12(2) read with section 39A(2) of the Dangerous Drugs Act 1952