Ha How Kok & Ors v Public Prosecutor

Appellant(s): Ha How Kok

Respondent(s):

• Pendakwa Raya
• [Timbalan Pendakwa Raya]

• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid
• YA Tuan Dean Wayne Daly

• Three appellants were jointly convicted by the High Court of trafficking in 4,030.7 grams of Ketamine under section 39B(1)(a) of the Dangerous Drugs Act 1952, read with section 34 of the Penal Code, after a raiding officer observed the third appellant hand a bag to the first appellant (in the presence of the second appellant) at a roadside location, following which the third appellant tried to flee in his car and the first and second appellants fled on foot, discarding the bag.
• Each appellant was sentenced to 30 years' imprisonment; the first and second appellants additionally received 12 strokes of whipping, while the third appellant (aged over 50) was spared whipping.
• All three appellants appealed against conviction, raising overlapping grounds concerning the treatment of flight/conduct evidence, findings on possession and trafficking, common intention, credibility of the raiding officer, and alleged inconsistencies in the High Court's judgment.

• Whether the High Court erred in relying on the appellants' flight and conduct after police intervention as proof of guilty knowledge, and whether such conduct evidence under section 8 of the Evidence Act 1950 was improperly treated as determinative or as "direct evidence" of trafficking.
• Whether the High Court's findings on possession and trafficking were based on actual evidence or an unstated statutory presumption under sections 37(d)/37(da) of the DDA, and whether failure to expressly characterise the findings as "actual" or "presumed" rendered the convictions unsafe.
• Whether the evidence was sufficient to establish common intention under section 34 of the Penal Code among the three appellants, and whether the High Court properly evaluated the defence case in accordance with section 182A of the Criminal Procedure Code without merely engaging in a credibility contest between competing narratives.

• The Court held that the High Court's findings of possession and trafficking were evidential, not presumption-based, as they were properly founded on direct eyewitness evidence of the physical handover of the bag, supplemented by circumstantial conduct evidence (flight, collision with a police vehicle, discarding of the bag), and clarified that such conduct evidence should properly be characterised as circumstantial rather than "direct" evidence of trafficking, though this did not affect the substance of the findings.
• The Court found that common intention under section 34 was properly inferred from the coordinated presence, conduct and flight of all three appellants surrounding the handover, and rejected arguments that the High Court's evaluation of the defence amounted to an impermissible reversal of the burden of proof, holding the correct beyond-reasonable-doubt standard had been applied.
• The Court dismissed all three appeals, affirming the convictions and sentences, and treated an apparent clerical reference to "methamphetamine" and a discrepancy in the recorded time of the offence as inadvertent errors causing no prejudice.