Tay Cher Boon [ ]

Tay Cher Boon [ ]

The Court of Appeal found the trial judge had confused direct possession findings with invocation of the statutory presumption under s.37(d) DDA, thereby imposing an inappropriate evidential burden on the appellant; because that misapplication prejudiced the appellant and the evidence did not safely support...

Source-derived case information.

Citation
B-05(SH)-354-09/2023 (Mahkamah Rayuan)
Parties
Appellant: Tay Cher Boon; Respondent: Public Prosecutor; 1st Accused (deceased): Gan Hock Seng
Court
SH
Jurisdiction
Malaysia
Judgment Date
30 July 2025
Case Number
B-05(SH)-354-09/2023 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Judgment on Appeal (court of Appeal)
Outcome
Appeal allowed in part; conviction for trafficking quashed and substituted convictions for possession; sentence varied
Legal Topics
Possession Vs Trafficking, Presumption of Possession S.37 Dangerous Drugs Act 1952, Burden of Proof Standards, Non‑calling of Witnesses and Adverse Inference, Disclosure Obligations S.51 a CPC, Section 182 a CPC Compliance
Criminal Law Drug Control Law Evidence Law Criminal Procedure Possession Vs Trafficking Presumption of Possession S.37 Dangerous Drugs Act 1952 Burden of Proof Standards Non‑calling of Witnesses and Adverse Inference +2 more

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Summary, issues, holding and outcome

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Parties

Tay Cher Boon

Appellant

Public Prosecutor

Respondent

Gan Hock Seng

1st Accused (deceased)

Procedural Posture

Criminal Appeal / Judgment on Appeal (court of Appeal)

Legal Issues

  1. 1 Whether the trial judge misapplied s.37(d) DDA by invoking a statutory presumption despite findings of direct possession
  2. 2 Whether the trial judge failed to consider defence evidence in compliance with s.182A CPC
  3. 3 Whether failure to call or offer the tenant as witness deprived appellant of a fair trial or warranted s.114(g) Evidence Act adverse inference

Ratio Decidendi

The Court of Appeal found the trial judge had confused direct possession findings with invocation of the statutory presumption under s.37(d) DDA, thereby imposing an inappropriate evidential burden on the appellant; because that misapplication prejudiced the appellant and the evidence did not safely support trafficking, the appeal was allowed in part and convictions substituted for possession offences with revised sentences.

Court Disposition

Appeal allowed in part; conviction for trafficking quashed and substituted convictions for possession; sentence varied

Orders

  • Quash convictions for trafficking under s.39B and set aside sentences imposed by High Court
  • Substitute conviction for first amended charge: possession under s.12(2) punishable under s.39A(2) Dangerous Drugs Act 1952