[Timbalan (TPR), Jabatan Peguam Negara] TAN CAR CHUN

[Timbalan (TPR), Jabatan Peguam Negara] TAN CAR CHUN

The prosecution failed to prove a prima facie case: although chemical analysis proved the substances were dangerous drugs, the prosecution did not establish possession, control or knowledge by the accused because other persons had access to the room, key evidential witness Lim Yee Chuan was not called and adverse inference under s114(g) Evidence Act 1950 was warranted, and there was insufficient evidence to conclude the acts amounted to trafficking under the statutory definition and purpose approach; accordingly both accused were acquitted and discharged at the close of the prosecution case.

Citation
CB-45-7-09/2019 (Mahkamah Tinggi)
Parties
Prosecution: Pendakwa Raya; Accused (okt1): Tan Car Chun; Accused (okt2): Ooi Zhe Xian
Court
High Court
Jurisdiction
Malaysia
Judgment Date
26 October 2023
Case Number
CB-45-7-09/2019 (Mahkamah Tinggi)
Procedural Posture
Criminal Trial Drug Offences (dangerous Drugs Act 1952, Poisons Act 1952) / After Close of Prosecution Case (court Considered Prima Facie Sufficiency; Accused Discharged Without Being Called to Enter Defence)
Outcome
Both accused (Tan Car Chun and Ooi Zhe Xian) acquitted and discharged at the close of the prosecution case
Legal Topics
Prima Facie Case, Possession and Control of Drugs, Trafficking Definition, Adverse Inference for Non Production of Witness (s114(g) Evidence Act), Statutory Presumptions Under Dangerous Drugs Act
Source Language
Malay/English
Criminal Law Evidence Law Drug Law Prima Facie Case Possession and Control of Drugs Trafficking Definition Adverse Inference for Non Production of Witness (s114(g) Evidence Act) Statutory Presumptions Under Dangerous Drugs Act

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Parties

Pendakwa Raya

Prosecution

Tan Car Chun

Accused (okt1)

Ooi Zhe Xian

Accused (okt2)

Procedural Posture

Criminal Trial Drug Offences (dangerous Drugs Act 1952, Poisons Act 1952) / After Close of Prosecution Case (court Considered Prima Facie Sufficiency; Accused Discharged Without Being Called to Enter Defence)

Legal Issues

  1. 1 Whether the prosecution adduced a prima facie case for offences under s39B Dangerous Drugs Act 1952 and related provisions
  2. 2 Whether possession, control and knowledge of the drugs by the accused were proven
  3. 3 Whether the failure to call material witness Lim Yee Chuan justifies an adverse inference under s114(g) Evidence Act 1950

Ratio Decidendi

The prosecution failed to prove a prima facie case: although chemical analysis proved the substances were dangerous drugs, the prosecution did not establish possession, control or knowledge by the accused because other persons had access to the room, key evidential witness Lim Yee Chuan was not called and adverse inference under s114(g) Evidence Act 1950 was warranted, and there was insufficient evidence to conclude the acts amounted to trafficking under the statutory definition and purpose approach; accordingly both accused were acquitted and discharged at the close of the prosecution case.

Court Disposition

Both accused (Tan Car Chun and Ooi Zhe Xian) acquitted and discharged at the close of the prosecution case

Orders

  • Accused Tan Car Chun and Ooi Zhe Xian are acquitted and discharged without being called to enter defence
  • Judgment delivered 15 November 2023 by Roslan Mat Nor, High Court of Malaya at Temerloh