Kamaleswaran Thaver a/l Suppiah v Pendakwa Raya

Appellant(s): Kamaleswaran Thaver A/L Suppiah

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Azmi Bin Ariffin
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Datuk Meor Hashimi bin Abdul Hamid

• The appellant was charged and convicted at the High Court for trafficking in 73.56 grams of methamphetamine under section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA), and sentenced to death under section 39B(2).
• The prosecution's case was that a police team found the drugs, packed in eight plastic packets inside an envelope, in the front pocket of the appellant's jeans after he attempted to flee on his motorcycle during a raid.
• The appellant's defence was that he was arrested at a different location by AADK officers, that the drugs were found in his laptop bag (not his trousers), and that the trousers produced in court had been switched by the police.

• Whether the trial judge erred by invoking the statutory presumption of trafficking under section 37(da) of the DDA in the written grounds of judgment, when no such presumption had been expressly raised or articulated at the close of the prosecution or defence case.
• Whether the trial judge's use of inconsistent and shifting language ("assumption and theory", "re-evaluate", failure to expressly invoke section 37(da)) across the oral ruling, the notes of proceedings, and the written judgment (delivered some three years later) amounted to a misdirection in law.
• Whether the trial judge failed to conduct the separate, mandatory exercise of determining if the defence had rebutted the presumption of trafficking on a balance of probabilities, as required where such a presumption is invoked.

• The Court held that possession and knowledge of the drugs were proven through direct evidence (the drugs found on the appellant's person), and that the appellant's flight upon being approached supported an inference of knowledge, per Parlan bin Dadeh v PP.
• However, the Court found that the trial judge had applied inconsistent and shifting burdens of proof regarding trafficking across the different stages of the judgment, and had failed to properly consider and analyse whether the appellant had rebutted the presumption of trafficking under section 37(da) on a balance of probabilities, amounting to a serious misdirection rendering the trafficking conviction unsafe.
• The Court unanimously allowed the appeal in part, quashing the conviction and death sentence under section 39B(1)(a)/39B(2) of the DDA, substituting it with a conviction for possession under section 12(2), punishable under section 39A(2), and imposed a sentence of 10 years' imprisonment from the date of arrest and 10 strokes of the cane.