Tay Cher Boon v Public Prosecutor

Appellant(s): Tay Cher Boon

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 (DDA 1952), read with Section 34 of the Penal Code.
• The charges stemmed from a police raid on a house where substantial quantities of Methamphetamine, Ketamine, and MDMA, along with drug processing equipment, were discovered.
• The High Court convicted the appellant on all charges, sentencing him to life imprisonment and whipping, which led to the present appeal.

• Whether the trial judge erred in invoking the presumption of deemed possession and knowledge under Section 37(d) DDA 1952 when there was direct evidence of possession.
• Whether the trial judge failed to properly evaluate the defence's case, particularly the appellant's explanation of being present to repair a machine, and the co-accused's exculpatory statements.
• Whether the prosecution's failure to call the tenant or disclose the co-accused's cautioned statement denied the appellant a fair trial.

• The Court found that the trial judge's simultaneous reliance on direct evidence of possession ("jagaan, kawalan dan pengetahuan") and the Section 37(d) presumption was a misdirection.
• This misapplication of the presumption prejudiced the appellant by imposing a higher legal burden (balance of probabilities) to rebut, instead of merely requiring him to raise a reasonable doubt.
• The Court set aside the conviction for trafficking, finding it unsafe, and substituted it with a conviction for possession under Section 39A(2) DDA 1952, imposing reduced sentences.