Lim Shuh Peng v Public Prosecutor

Appellant(s): Lim Shuh Peng

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Mohamed Zaini Bin Mazlan
• YA Dato' Azmi Bin Ariffin

• The appellant was charged with three counts of drug trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952, involving heroin, methamphetamine, and monoacetylmorphines found in a black bag she was carrying when apprehended by police at a jetty in Langkawi.
• At the close of the prosecution case, the High Court found a prima facie case established and called for her defence; she elected to give sworn testimony, claiming the bag had been placed in a common baggage area during the ferry journey and was out of her control and knowledge.
• The High Court convicted her on all three charges and sentenced her to life imprisonment (30 years) on each charge, to run concurrently from the date of conviction, with whipping exempted under section 289(a) of the Criminal Procedure Code as she was a female offender.

• Whether the trial judge erred by failing to apply the "doctrine of election" by simultaneously requiring the appellant to both raise a reasonable doubt on the prosecution's case and rebut the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952, thereby imposing an improper dual burden of proof.
• Whether the trial judge erred in finding that the appellant's failure to call her boyfriend as a supporting witness undermined her defence, and whether this amounted to an impermissible adverse inference under section 114(g) of the Evidence Act 1950.
• Whether the sentence of life imprisonment should run from the date of conviction or the date of arrest.

• The Court held that no impermissible "double presumption" or dual burden of proof was applied; the trial judge's language, though referencing both concepts, did not conflate possession and trafficking presumptions, and the appellant's defence remained a bare denial insufficient to raise reasonable doubt or rebut the statutory presumption under section 37(da) on a balance of probabilities.
• The Court found the trial judge merely noted the absence of corroborative evidence (the boyfriend's testimony) without drawing any adverse inference under section 114(g) of the Evidence Act 1950, and therefore no misdirection occurred on this point.
• The appeal against conviction was dismissed and the convictions on all three charges affirmed; however, the appeal against sentence was allowed, with the life imprisonment terms ordered to run from the date of arrest (3 March 2019) rather than the date of conviction, running concurrently.