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2017 MarsdenLR 1182
COURT OF APPEAL PUTRAJAYA
NG PENG SENG – Appellant
Versus
PP & ANOTHER APPEAL – Respondent
[Criminal Appeal Nos: J-05(M)-217-08/2015 & J-05(M)-223-08/2015]
Errors in assessing legal presumptions and common intention lead to reversal of drug trafficking conviction, substituting it with possession.
Headnote:This judgment addresses the convictions and subsequent appeal of the appellants charged with drug trafficking under the Dangerous Drugs Act 1952. The court analyzed the prosecution's case, focusing on the evidence of possession of drugs and common intention among the appellants. The court ultimately found errors in the lower court’s application of legal presumptions regarding trafficking, specifically citing statutory sections which governed their findings. Results led to a substitution of charges to possession with a sentence of 18 years imprisonment.
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| 1. initial convictions were set aside due to insufficient evidence. (Para 1 , 3 , 4) |
[1] Lau Fong Yee (the first appellant) and Ng Peng Seng (the second appellant) were the first accused and the second accused respectively in the High COURT. They were convicted and sentenced to death by the High COURT at Muar for trafficking in 283.92 grams of Heroin and 97.10 grams of Monoacetylmorphines, an offence punishable under s 39B(2) of the Dangerous Drugs Act 1952 (the Act) read with s 34 of the Penal Code (the trafficking charge). The offence was said to be committed on 29 November 2011 at about 3.45pm at KM 160, Arah Selatan, Lebuhraya Utara Selatan, Ledang, Johor.
[2] The first appellant was also convicted and sentenced to 3 years and 2 years imprisonment for being in possession of 5.88 grams Methamphetamine and 0.04 grams Nimetazepam respectively, an offence under s 12(2) punishable under s 39A(2) of the Act (the possession charges).
[3] Aggrieved by the decision of the High COURT, the appellants appealed to this COURT. We had unanimously allowed the appeal, set aside the order of the High COURT on the trafficking charge and substituted with an order of possession under s 12(2) punishable under s 39A(2) of the Act against both the appellants.
[4] Having heard the submissions of learned counsel and learned DPP, we sentenced both the appellants to 18 years imprisonment from the date of arrest. No whipping was imposed on both the appellants as s 289 of the Criminal Procedure Code forbids whipping by virtue of the first appellant being a female and the second appellant being more than 50 years of age. We affirmed the convictions and sentences of the High COURT against the first appellant on the possession charges.
