Chong Yoon Sze & Anor v Public Prosecutor

Appellant(s):

• Chong Yoon Sze
• Tan Wai Lim

Respondent(s): Pendakwa Raya

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Tuan Muniandy a/l Kannyappan

• The two appellants were jointly charged under section 39B(1)(a) of the Dangerous Drugs Act 1952, read with section 34 of the Penal Code, for trafficking in 1,079.0 grams of Methamphetamine found in a Wi-Fi router box at an apartment unit.
• The case arose from an initial arrest in relation to a luxury car theft investigation, during which the appellants were found with keys and an access card, and subsequently led police to the apartment where the drugs were discovered.
• At the High Court, both appellants were convicted and sentenced to life imprisonment and 12 strokes of whipping; they appealed against both conviction and sentence.

• Whether the prosecution had proven the elements of possession, custody and control of the drugs, given that the appellants merely resided at or had access to the premises where the drugs were found.
• Whether the element of knowledge (mens rea) was established, particularly where the drugs were concealed in a closed, opaque box and the appellants showed no overt signs of guilty conduct upon arrest.
• Whether evidence of the appellants leading police to the drugs was admissible under section 27 of the Evidence Act 1950, given uncertainty over whether a proper caution under section 37B(1)(b) of the Dangerous Drugs Act 1952 had been administered and explained.
• Whether the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952 could be invoked absent proof of an overt act of trafficking and common intention under section 34 of the Penal Code.

• The Court held that mere residence in, or access to, premises (via keys or access cards) does not by itself establish exclusive custody, possession or control over drugs concealed in an opaque container, absent independent evidence directly linking the accused to the item.
• The Court found that the appellants' calm and non-resistant conduct upon arrest negated any inference of guilty knowledge, and that the prosecution failed to prove proper administration and explanation of the statutory caution, rendering the "pointing out" evidence inadmissible under section 27 of the Evidence Act 1950.
• The Court ruled that the statutory presumption of trafficking cannot be activated merely from the physical characteristics of the drugs (packaging, quantity) without first establishing possession, knowledge, and an overt act of trafficking, and found no evidence of common intention between the appellants.
• Holding that the trial judge failed to conduct a maximum evaluation of the evidence as a whole, the Court of Appeal unanimously allowed the appeal, quashed the conviction and sentence, and ordered the immediate acquittal and discharge of both appellants.