TAY CHER BOON [ ]

TAY CHER BOON [ ]

Appeal allowed in part: trial convictions for trafficking (s.39B(1)(a) ADB 1952) set aside because the judge conflated direct evidence of possession and statutory presumption leading to legal uncertainty; convictions substituted for possession offences (s.12(2) ADB 1952 with applicable sentencing provisions s.39A(2) and s.12(3) as stated) and sentences varied accordingly; appellate court concluded evidence did not safely establish trafficking but did establish possession by appellant of the specified controlled substances.

Citation
B-05(SH)-370-09/2023 (Mahkamah Rayuan)
Parties
Appellant/perayu: Tay Cher Boon; Respondent: Pendakwa Raya
Court
SH
Jurisdiction
Malaysia
Judgment Date
30 July 2025
Case Number
B-05(SH)-370-09/2023 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal (drug Offences) / Appellate Judgment (mahkamah Rayuan)
Outcome
Appeal allowed in part; convictions for trafficking set aside and substituted with convictions for possession; sentences varied
Legal Topics
Possession and Knowledge, Statutory Presumption S.37(d) Dangerous Drugs Act 1952, Standard of Proof (beyond Reasonable Doubt Vs Balance of Probabilities), Disclosure and Privilege of Investigative Statements, Right to Fair Trial / Adducing Defence
Source Language
Malay/English
Criminal Law Drug Law Evidence Criminal Procedure Possession and Knowledge Statutory Presumption S.37(d) Dangerous Drugs Act 1952 Standard of Proof (beyond Reasonable Doubt Vs Balance of Probabilities) Disclosure and Privilege of Investigative Statements +1 more

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Parties

Tay Cher Boon

Appellant/perayu

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal (drug Offences) / Appellate Judgment (mahkamah Rayuan)

Legal Issues

  1. 1 Whether trial judge misapplied statutory presumption under s.37(d) Dangerous Drugs Act 1952
  2. 2 Whether trial judge failed to appreciate defence and comply with s.182A Criminal Procedure Code
  3. 3 Whether prosecution's failure to call/offer the named tenant as witness prejudiced accused

Ratio Decidendi

Appeal allowed in part: trial convictions for trafficking (s.39B(1)(a) ADB 1952) set aside because the judge conflated direct evidence of possession and statutory presumption leading to legal uncertainty; convictions substituted for possession offences (s.12(2) ADB 1952 with applicable sentencing provisions s.39A(2) and s.12(3) as stated) and sentences varied accordingly; appellate court concluded evidence did not safely establish trafficking but did establish possession by appellant of the specified controlled substances.

Court Disposition

Appeal allowed in part; convictions for trafficking set aside and substituted with convictions for possession; sentences varied

Orders

  • Set aside the High Court convictions and sentences for trafficking under s.39B(1)(a) Dangerous Drugs Act 1952.
  • Substitute convictions: for Pertuduhan Pindaan Pertama (P4, Methamphetamine 313.72g) and Pertuduhan Pindaan Ketiga (P6, MDMA 2231.89g) convicted for possession under s.12(2) Dangerous Drugs Act 1952 punishable under s.39A(2). For Pertuduhan Pindaan Kedua (P5, Ketamine 661.94g) convicted for possession under s.12(2)...