DONG JHEN YU [Jabatan Peguam Negara]

DONG JHEN YU [Jabatan Peguam Negara]

The Court allowed the appeals because the prosecution failed in its duty to make available key witnesses or their s.112 CPC statements after offering them to the defence; that failure materially prejudiced the appellants' right to a fair trial (exacerbated by lengthy preventive detention) and left the prosecution unable to negate the defence narrative, rendering the convictions unsafe; accordingly convictions and mandatory death sentences were set aside and appellants acquitted and discharged.

Citation
W-05(M)-588-12/2019 (Mahkamah Rayuan)
Parties
1st Appellant: Law Kian Ming; 2nd Appellant: Dong Jhen Yu; Respondent: Pendakwa Raya
Court
M
Jurisdiction
Malaysia
Judgment Date
9 February 2022
Case Number
W-05(M)-588-12/2019 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal (drug Trafficking) / Court of Appeal Judgment (appeal Allowed)
Outcome
Appeals allowed; convictions and sentences set aside; appellants acquitted and discharged
Legal Topics
Trafficking, Right to Fair Trial, Prosecutorial Disclosure, Witness Availability, Adverse Inference, Presumption of Trafficking
Source Language
Malay/English
Criminal Law Evidence Drugs Law Constitutional Law Trafficking Right to Fair Trial Prosecutorial Disclosure Witness Availability +2 more

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Parties

Law Kian Ming

1st Appellant

Dong Jhen Yu

2nd Appellant

Pendakwa Raya

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether prosecution breached duty to make available witnesses and police statements thereby denying right to fair trial
  2. 2 Whether failure to produce s.112 Criminal Procedure Code statements or secure attendance of offered witnesses prejudiced defence and rendered conviction unsafe
  3. 3 Whether appellants rebutted presumption of trafficking under s.37(da) Dangerous Drugs Act

Ratio Decidendi

The Court allowed the appeals because the prosecution failed in its duty to make available key witnesses or their s.112 CPC statements after offering them to the defence; that failure materially prejudiced the appellants' right to a fair trial (exacerbated by lengthy preventive detention) and left the prosecution unable to negate the defence narrative, rendering the convictions unsafe; accordingly convictions and mandatory death sentences were set aside and appellants acquitted and discharged.

Court Disposition

Appeals allowed; convictions and sentences set aside; appellants acquitted and discharged

Orders

  • Convictions set aside
  • Sentences set aside