Kalaicelvam a/l Perassami v Pendakwa Raya

Appellant(s): Kalaicelvam A/L Perassami

Respondent(s):

• Pendakwa Raya
• [Jabatan Peguam Negara]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid

• The appellant was charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking 65.6 grams of Methamphetamine, found in a white box he was holding when arrested outside a residence.
• At the close of the prosecution case, the High Court invoked the presumption of knowledge and possession under s 37(d) of the Act, and found a prima facie case of trafficking established, calling the appellant to defend himself.
• The appellant's defence was that a third party ("Robert") had asked him to keep the box without disclosing its contents; the trial judge rejected this as an afterthought and bare denial, convicted him under s 39B(1)(a), and sentenced him to life imprisonment (30 years) and 12 strokes of the rotan.

• Whether the trial judge committed a serious misdirection of law by failing to make an express finding, at the close of the defence case, on whether the appellant had successfully rebutted the statutory presumption of knowledge and possession under s 37(d) of the Act on a balance of probabilities.
• Whether such a failure to make an express finding on rebuttal of the presumption, before proceeding to assess whether trafficking was proven beyond reasonable doubt, rendered the conviction for trafficking unsafe.
• Whether, notwithstanding this misdirection, the evidence nonetheless supported a conviction for the lesser offence of possession under s 12(2) of the Act.

• The Court held that where the prosecution relies on the s 37(d) presumption, the trial judge is under a statutory duty to make a clear and express finding on whether the presumption was rebutted before determining whether trafficking was proven beyond reasonable doubt; failure to do so is a misdirection in law, following Mat v PP, PP v Mohd Radzi Bin Abu Bakar, and Seyedalireza Seyedhedayatollah Ehteshamiardestani v PP.
• As the trial judge had jumped directly from assessing the defence to concluding the trafficking charge was proven, without resolving the rebuttal issue, the Court found this a serious and express misdirection rendering the trafficking conviction under s 39B(1)(a) unsafe.
• The Court nonetheless agreed with the trial judge's factual finding that the appellant's defence was an afterthought and bare denial, and on the evidence of physical possession of the drugs, substituted the conviction with one for possession under s 12(2), sentencing the appellant to 8 years' imprisonment from the date of arrest and 10 strokes of the rotan under s 39A(2).