Lean Siew Boon & Anor v Public Prosecutor [2014] MLJ 572


Court of Appeal (Putrajaya)

Prima Facie Evidence


1.     The Appellant, Lean Siew Boon was charged, tried, convicted and sentenced pursuant to Section 39B(1)(a) of the Dangerous Drugs Act 1952 (“Act 234”) for trafficking of dangerous drugs.

2.  The commission of the crime took place on 16 February 2004 in Bukit Awana Condominium, Ayer Keroh, Melaka (“Condominium”) .  The Appellant was raided by the police teams where an evidence of several bunch of keys (“Keys”) were recovered from the trousers of the Appellant.

3.     The Appellant was then brought to the 30th floor of the Condominium (“Unit”) alleged to be the place where the drugs were stored.  Several items were seized from the Unit in which later was confirmed to be heroin, monoacetylmorphines, methamphetamine and ketamine (“Drugs”) pursuant to the analysis by the experts.

4.      The High Court found incontrovertible evidence that the Appellant is in fact managing the House by possessing the keys to the Unit.

Issue Whether there were contradictions in the evidence of the prosecution in respect of the recovery of the drugs and the possession of the keys and on the gap of the prosecution’s case.

1.     During the trial in the High Court, the learned trial judge made the following finding on the custody and/or control and possession of the drug as against the Appellant:

“By possessing the keys to the Unit No 4 on the 30 floor in Block 9, there is              incontrovertible evidence that this particular unit was under the care and management of the first accused and naturally that he had also access to it.

The court finds that the first accused was in joint and exclusive possession of all the drugs found in the rented Unit No 4-30-9 together with the second accused (the role of the second accused will be delved with later on) and both of them had the power of disposal with the drugs. The first accused possessed the keys to open this unit and thus he knew of the whereabouts of the drugs and had the power to do what he liked with them.”

2.     The learned trial judge then concluded that a prima facie case has been made out and called the Appellant to enter their defence.

3.     The appeal in this Court centred on the fact that the learned trial judge failing to undertake a maximum evaluation of the evidence and had misdirected himself seriously pertaining to his grounds of judgment.

4.     The misdirection may be seen based on the recovery of the evidence i.e. the Drugs and the Keys were not from the trousers of the Appellant but from the Unit.

5.     This Court is of the view that the learned trial judge had misdirected himself by making the following findings:

(a)  Apart from the Appellant, no one else had access to the said Unit;

(b)  That the discovery of the drugs from the trousers of the Appellant is the nexus to the drugs found in the Unit and from the nexus, knowledge of the presence of drugs may be inferred;

(c)  that by having the keys in the Appellant’s pocket, the Appellant was trafficking dangerous drugs.

6.     This Court also held that there was no evidence proving that the Appellant were in occupation in the Unit at any time prior his arrest.

7.     Therefore, this Court found that there is a gap in the prosecution’s case which had not been bridge, therefore, constituting failure in establishing prima facie against the Appellant.  The onus is not on the defence to prove the possibility of others having access to the said Unit but on the prosecution to exclude such possibility.

Decision The Court of Appeal allowed the appeal against his conviction and sentence under Section 39B(1)(a) of Act 234.

Key Take Away

1.   Prima facie is a legal term used to denote a legal claim has been sufficiently proved in order to proceed for a judgement by a criminal court.

2.   Nevertheless, it must be noted that even if a prima facie case has been established, it is not guaranteed that the court will rule out the same stand.


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