LOO YONG HENG [ ]

LOO YONG HENG [ ]

The Court held the convictions safe because the totality of admissible evidence established actual possession and knowledge: significant quantity of methamphetamine (183.14g) and other drugs along with paraphernalia and cash were found in the appellant's sole-occupied room in open view, justifying the trial court's invocation of the s37(da) presumption; the defence was a bare denial and failed to rebut the presumption on the balance of probabilities; SP5 was hostile but relevant primary testimony remained admissible; accordingly convictions for all six charges were upheld and sentencing for the s39B offence was substituted pursuant to the Abolition Act.

Citation
J-05(M)-257-06/2022 (Mahkamah Rayuan)
Parties
Appellant: Loo Yong Heng; Respondent: Pendakwa Raya
Court
M
Jurisdiction
Malaysia
Judgment Date
9 November 2023
Case Number
J-05(M)-257-06/2022 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Appeal to Court of Appeal Judgment Delivered
Outcome
Appeal dismissed in part; convictions upheld; sentence for trafficking charge substituted under Abolition Act.
Legal Topics
Possession, Trafficking, Presumption of Trafficking (s37(da) Dangerous Drugs Act 1952), Possession (s37(d) Dangerous Drugs Act 1952), Use of S154 Evidence Act 1950 for Hostile Witnesses, Conduct Evidence (s8 Evidence Act 1950), Mandatory Death Penalty Abolition (akta 846 2023)
Source Language
Malay/English
Criminal Law Drug Offences Evidence Law Sentencing Law Possession Trafficking Presumption of Trafficking (s37(da) Dangerous Drugs Act 1952) Possession (s37(d) Dangerous Drugs Act 1952) +3 more

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Parties

Loo Yong Heng

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal / Appeal to Court of Appeal Judgment Delivered

Legal Issues

  1. 1 Whether an affirmative finding of possession was required before invoking the statutory presumption under s37(da) DDA 1952
  2. 2 Whether appellant had exclusive control, custody and knowledge of the drugs found in his room
  3. 3 Whether the trial court properly admitted and relied on evidence under s154 Evidence Act 1950 regarding a hostile witness (SP5)

Ratio Decidendi

The Court held the convictions safe because the totality of admissible evidence established actual possession and knowledge: significant quantity of methamphetamine (183.14g) and other drugs along with paraphernalia and cash were found in the appellant's sole-occupied room in open view, justifying the trial court's invocation of the s37(da) presumption; the defence was a bare denial and failed to rebut the presumption on the balance of probabilities; SP5 was hostile but relevant primary testimony remained admissible; accordingly convictions for all six charges were upheld and sentencing for the s39B offence was substituted pursuant to the Abolition Act.

Court Disposition

Appeal dismissed in part; convictions upheld; sentence for trafficking charge substituted under Abolition Act.

Orders

  • Appellant's convictions on all six drug charges are upheld and appeal against conviction is dismissed.
  • Sentence for offence under s39B(1)(a) Dangerous Drugs Act 1952 (trafficking methamphetamine 183.14g) substituted with 30 years imprisonment from date of arrest (13.2.2018) and 12 strokes of the rotan pursuant to the Abolition of Mandatory Death Penalty Act 2023 (Act 846).