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2012 MarsdenLR 897
COURT OF APPEAL PUTRAJAYA
LIAM HENG BOON – Appellant
Versus
PP – Respondent
[Criminal Appeal No: J-05-272-2009]
The presumption of trafficking arises when a substantial quantity of drugs is in possession, coupled with evidence of intent and knowledge despite claims of passive possession.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a), 39B(2), 12(2), 37(da) - Appellant charged with trafficking in dangerous drugs, initially charged with possession - Convicted and sentenced to death - The original charge was reinstated by appellate court; conviction upheld as defence failed to raise reasonable doubt - The law presumes possession implies knowledge and intent to distribute when quantity exceeds statutory limits. (Paras 1-3, 22-60)
Facts of the case:
Appellant arrested for trafficking with substantial amount of drugs discovered in waist pouch; police operation set up to catch the appellant, who attempted to flee upon confrontation.
Findings of Court:
Defence could not establish significant facts to challenge prosecution's evidence; appellant's version deemed improbable.
Issues: Whether appellant's possession was active trafficking or mere passive possession.
Ratio Decidendi: Court found that possession in this case was active and involved intent to traffic; appellant’s defenses failed to convincingly establish knowledge or lack thereof regarding the drugs.
Result: Appeal dismissed; conviction affirmed.
| Table of Content |
|---|
| 1. charge and initial guilty plea (Para 1 , 1 , 2) |
| 2. details of arrest and evidence gathered (Para 4 , 5 , 6 , 7 , 8 , 20) |
| 3. possession vs. trafficking clarification. (Para 15 , 38 , 40) |
| 4. appellant's defense arguments (Para 21 , 23 , 25) |
| 5. assessment of possession vs trafficking (Para 22 , 41 , 42) |
| 6. defendant's claim of innocence and mishap. (Para 24) |
[1] Liam Heng Boon - the appellant herein, was charged for trafficking in dangerous drugs, to wit, 42.71 grams comprising 3.46 grams of heroin and 39.25 grams of monoacetylmorphines, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("DDA") and punishable under s 39B(2) of the . The charge that was laid against the appellant, in its original language, was worded as follows:
"Bahawa kamu pada 28 Mei 2002, jam lebih kurang 4.00 petang, di hadapan kedai Wan Hao Enterprise, No: 136-136A, Jalan Perwira 1, Taman Ungku Tun Aminah, Skudai, di dalam daerah Johor Bahru, dalam Negeri Johor Darul Ta'azim, telah didapati mengedar dadah berbahaya iaitu 42.71 gram (3.46 gram Heroin dan 39.25 gram Monoacetylmorphines) dan oleh yang demikian, kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta yang sama."
[2] At the close of the case for the prosecution, the learned High Court Judge amended the charge to one of possession under s 12(2) of the DDA punishable under s 39A(2) of the . The appellant pleaded guilty to the amended charge and the learned High Court Judge sentenced the appellant to 10 years imprisonment and 10 strokes of the rattan. Dissatisfied with the decision of the learned High Court Judge, the Public Prosecutor appealed to this Court. Another panel of this Court, on 15 January 2009, allowed the Public Prosecutor's appeal and ordered the appellant to enter his defence on the original charge of trafficking. However, no grounds of judgment was written by the other panel of this Court when it delivered its decision on 15 January 2009.
[3] After hearing the defence, the learned High Court Judge ruled that the defence had not raised any reasonable doubt as to the prosecution's case and the defence too had failed to rebut the presumption of trafficking under s 37(da) of the DDA on the balance of probabilities. The learned High Court Judge then proceeded to convict the appellant on the original charge of trafficking and sentenced him to death. Aggrieved, the appellant now appeals to this Court.
The Salient Facts
[4] On 28 May 2002 at 11.00am, ASP Teoh Paik Leng (SP2) received an information from his source pertaining to a drug trafficking activity that would take place at the location as stated in the charge and the target was described as a male Chinese who would arrive at the location as stated in the charge riding a motorcycle.
[5] SP2 gathered 12 of his police personnel and briefed them about the impending operation that they would undertake. The police personnel were divided into three groups. The first group was headed by SP2 himself and he was assisted by five police personnel including detective lance corporal 112740 Azmi bin Yusof (SP4). While the second group was headed by ASP Charun and he was assisted by three police personnel. Finally, the third group was headed by D/SI Zulkifly with the assistance of three police personnel.
[6] The first group was tasked with the duty of arresting the target, while the second and the third groups acted as "back-up" personnel.
[7] By 12.00 noon of the same day, the police personnel took up their respective ambush positions. The first group was stationed at the curtain shop. SP2 located himself at a Chinese restaurant which was located next to the curtain shop. The second group was stationed at the junction of Jalan Perwira 3 and Jalan Perwira 8. While the third group was stationed at the junction of Jalan Perwira 1 with the main road. The police personnel then stood vigil and waited for the target.
[8] At about 4.00pm of the same day, the target arrived a
