Lee Sheue Ning v PP & Other Appeals [2024] MLRAU 137

Court of Appeal, Putrajaya

Criminal Procedure – Trial – Dangerous Drugs Act 1952 (Act 234) (‘DDA’)

1.     The police raided a house located at Bayan Lepas Pulau Pinang in which they found the two Appellants lying on the bed and two bags in the closet that contained one (1) transparent plastic of heroin, four (4) pink/green plastic packages of heroin, one (1) plastic packet of Chinese tea “Qing Shan” containing syabu and eight (8) transparent plastic packets containing syabu.

2.    The police then handed over the seized items including three (3) toothbrushes and four (4) pieces of clothing from the main room inside the house for DNA analysis.  The Chemical Report of the DNA analysis showed that the seized item matched with the DNA profiles of the Accused.

3.    Accordingly, the High Court found that the prosecution successfully proved the elements on possession of drugs and raised the presumption of drug trafficking against both Accused.  As for that, the Appellants were convicted and sentenced under Section 39(3)(1)(a) of the Dangerous Drugs Act 1952 [Act 234] (“DDA”).

Issues

1.    Whether the evidence proves that others also had access to the said house at the time of arrest.

2.    Whether the learned High Court judge failed to negate the involvement of some other people named Raymond and Weason.

1.    Whether the evidence proves that others also had access to the said house at the time of arrest.

(a)      The Court found that the case had been proven beyond reasonable doubt by the prosecution at the High Court.

(b)      The evidence from the prosecution witnesses proved that there were no other person at the premise during the raid.

(c)      Furthermore, SP4 verified and positively recognised the rental agreement in the name of the Second Appellant, dated 8 October 2018 indicating that the premise was rented to both accused.

(d)      Thus, it was proved that the Appellants had temporary control of the drug-filled bags and the bags were under the care and custody of both Appellants, who were the residents of the premise.

2.    Whether the learned High Court judge has failed to negate the involvement of some other people named Raymond and Weason.

(a)      The Court upon reviewing the Jelutong Report 7244/18, it was found that only Weason’s name mentioned, with no reference to Raymond.  It also raised the question of how a current tenant could actually knew about the previous tenant.

(b)      Furthermore, pertaining to the police report of the arrest of several individuals on 1 November 2018 at the address No. 21 Changkat Minden Jalan 2, 11700 Gelugor Pulau Pinang, the Court found that the only commonality is that both the Appellants and Weason were arrested on the same date.  However, this fact alone is insufficient to prove that the drugs found with the Appellants at the premises belonged to Weason.

(c)      Based on the above, the Court found that the Appellants had not proven their defence about Raymond and Weason’s involvement and as for that, the Court referred to the decision of the Federal Court in Sathya Vello v Public Prosecutor [2022] 5 MLRA 74 as follows:

“[96] But the rule does not apply where a statute presumes a fact ‘unless the contrary is proved’. Thus, where statutory presumptions such as the ones in s 37(d) and s 37(da) of the DDA come into play, it is not sufficient for the accused to merely cast a reasonable doubt in the trial court’s mind as to whether or not the presumed facts exist. The accused must affirmatively prove by admissible evidence that the presumed facts do not exist, and the standard of proof is the civil standard of proof, ie proof on the balance of probabilities: see Public Prosecutor v. Yuvaraj.”

(d)      The Court held that the Appellants had failed to prove to the Court the admissible evidence regarding the existence of Raymond and Weason.

(e)      Based on these reasons, the Court held that the learned High Court judge did not err in law in dismissing the involvement of Raymond and Weason.

(f)        The Court also found that the finding of the learned High Court judge that the defence failed to cast doubt on the presumption of drug trafficking under Section 37(da)(iiia) and (xvi) of the DDA was correct.

(g)      Since the prima facie case has been proven by the prosecution at the High Court, the Court held that there was sufficient evidence to infer the common intention of both the Appellants.

(h)      Therefore, the Court held that life imprisonment and whipping should be the appropriate punishment after considering the mitigating elements and outweighed the seriousness of the appeals and both the Appellants convictions shall be read together with Section 34 of the Penal Code 2015 [Act 574] as follows:

“Each of several persons liable for an act done by all, in like manner as if done by him alone

34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.”

(i)        However, the Court agreed to overturn the decision of the High Court judge by sentencing both of the Appellants with 30 years imprisonment for the two charges and both sentences to be run concurrently.

1.      The Court is no longer restricted to use the requirements outlined in Section 39B(2A) of the DDA to impose a life sentence, as that provision was repealed along with the mandatory death penalty statute.

2.      Section 3 of the Criminal Justice Act 1953 as amended in 2007 provides that –

“3. Where any person is treated as having been sentenced or is hereafter sentenced to imprisonment for life, such sentence shall be deemed for all purposes to be a sentence of imprisonment for twenty years.”

It can be seen that this clause gives authority to the Court to issue a sentence of not less than 30 years but more than 40 years and shall be read together with Section 15 of Act 846.

3.      Section 289 of the Criminal Procedure Code provides that whipping is no longer allowed for females and males that are sentenced to death and for males above the age of 50 years.