Chong Yew Chai v Public Prosecutor

Appellant(s): Chong Yew Chai

Respondent(s):

• Pendakwa Raya
• [Timbalan Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Dato' Ahmad Fairuz bin Zainol Abidin
• YA Datuk Hayatul Akmal binti Abdul Aziz

• The appellant, together with two co-accused, was jointly charged with two counts of drug trafficking under s.39B(1)(a) of the Dangerous Drugs Act 1952, arising from a police raid at a house allegedly used for drug processing and a vehicle containing methamphetamine.
• At the end of the defence case, the High Court convicted all three accused on the reduced charge of possession under s.12(2), punishable under s.39A(2)/s.32A(2) ADB 1952, sentencing the appellant to concurrent terms of 12 and 23 years' imprisonment.
• The two co-accused successfully appealed and were acquitted by the Court of Appeal in 2022; the appellant, who had not appealed in time, later obtained leave to file his appeal out of time against the same 2019 High Court decision.

• Whether the prosecution's failure to call two named individuals (said to be the true tenant/controller of the premises and his associate) as witnesses, despite evidence of their access and involvement, created a material gap in the prosecution case.
• Whether the trial judge erred by misdirecting himself in placing the burden on the defence to establish the existence and relevance of these third parties, rather than requiring the prosecution to exclude their involvement.
• Whether the trial judge properly evaluated the appellant's defence of lack of knowledge of the drugs, and whether the invocation of multiple/"double" statutory presumptions under s.37 of the ADB 1952 (presumption upon presumption) was permissible following the Federal Court's decision in Alma Nudo Atenza v PP.

• The Court of Appeal held that the trial judge misdirected himself in law by casting the burden of proving the existence and materiality of the two named third parties onto the appellant, when the legal burden to prove the case, including excluding reasonable possibilities raised by the defence, remains on the prosecution throughout the trial.
• The Court found that the prosecution's failure to call these two material witnesses, despite a proper and timely Alcontara notice having been given by the defence, resulted in a material gap in the prosecution's case warranting an adverse inference under s.114(g) of the Evidence Act.
• The Court further held that the trial judge's use of multiple presumptions under s.37(b), (d) and (da) at the close of the prosecution case—followed by an unclear finding on which single presumption was ultimately relied upon and whether it was rebutted—amounted to a fatal misdirection per Alma Nudo Atenza v PP; the appeal was allowed, and the conviction and sentence were set aside, with the appellant acquitted and discharged on both charges.