Public Prosecutor v Edric Ng Tze Khin

Appellant(s): Edric Ng Tze Khin

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• Dato' Dr. Choo Kah Sing
• YA Datuk Dr Lim Hock Leng
• YA Datuk Mohd Radzi Bin Abdul Hamid

• The respondent was convicted under section 39B of the Dangerous Drugs Act 1952 for trafficking 100.01 grams of Methamphetamine and sentenced to 35 years' imprisonment and 12 strokes of whipping, after police stopped a vehicle he was driving and he pointed out a bag and envelopes containing the drugs.
• A co-accused travelling with him was discharged and acquitted at the close of the prosecution's case, with no appeal filed by the Prosecution against that acquittal.
• The respondent appealed against conviction and sentence, while the Prosecution separately appealed against the legality of the 35-year sentence, contending it exceeded the statutory maximum for life imprisonment; both appeals were heard together.

• Whether the trial judge properly evaluated the credibility of the arresting officer's evidence that the respondent had pointed out the drugs, and whether this conduct was admissible and sufficient to establish knowledge, custody and control despite the absence or inadequacy of a cautioned statement.
• Whether the Prosecution's failure to call the vehicle's registered owner as a witness created a gap warranting an adverse inference under section 114(g) of the Evidence Act 1950, given the defence's argument that the vehicle was accessible to others.
• Whether the acquittal of the co-accused, absent proof of common intention, entitled the respondent to a similar acquittal, and whether the 35-year sentence imposed was legally permissible under section 39B(2) of the DDA read with section 3(3) of the Criminal Justice Act 1953.

• The Court held that the conduct of pointing towards the incriminating items was relevant and admissible under sections 8 and 27 of the Evidence Act 1950 regardless of any defect in the cautioned statement, and found no reason to disturb the trial judge's acceptance of the arresting officer's evidence as credible and unmotivated by any grudge against the accused.
• The Court ruled that since possession was established through the respondent's own conduct, the Prosecution was not obliged to call the vehicle owner as a material witness, and no adverse inference under section 114(g) arose; it also held that acquittal of a co-accused for want of evidence of possession does not automatically entitle a jointly charged accused to acquittal, as section 34 of the Penal Code is merely an evidentiary rule on joint liability.
• The Court dismissed the appeal against conviction, affirming the High Court's decision, but allowed both the respondent's and the Prosecution's appeals on sentence, holding that the 35-year term was illegal as section 3(3) of the Criminal Justice Act 1953 caps life imprisonment at 30 years.