Wesley Loh Chee You v Public Prosecutor

Appellant(s): Wesley Loh Chee You

Respondent(s):

• Pendakwa Raya
• [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid
• YA Tuan Dean Wayne Daly

• The appellant was arrested at a hotel lobby carrying a shopping bag later found to contain 769.9 grams of methamphetamine, and was convicted at trial under section 39B(1)(a) of the Dangerous Drugs Act 1952, receiving 30 years' imprisonment and 12 strokes of whipping.
• The appellant's defence was that the bag belonged to a third party and her boyfriend, and that he was merely carrying it on their behalf without knowledge of its contents.
• On appeal, the appellant challenged the conviction on multiple grounds, including the prosecution's failure to produce a witness from the car-rental company who had been offered to the defence, failure to recall an arresting officer, alleged inconsistencies in prosecution evidence, and challenges to the CCTV evidence and chain of custody.

• Whether the prosecution's failure to produce a witness earlier offered to the defence, following the Federal Court's decision in Rosli Yusof v Public Prosecutor, rendered the trial unfair and the conviction unsafe.
• Whether the failure to recall a witness under section 425 of the Criminal Procedure Code, coupled with alleged contradictions between prosecution witnesses and an exhibit, undermined the safety of the conviction.
• Whether the prosecution had proved the elements of possession, custody, control and knowledge to properly trigger the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952, and whether the defence rebutted that presumption on a balance of probabilities.

• The Court held that Rosli Yusof does not lay down an inflexible rule requiring production of every witness investigated or offered to the defence; the test is whether the absent witness was material to the central issues, and here the missing witness's evidence (relating to vehicle rental) was peripheral and could not displace direct evidence of the appellant's possession and control of the bag.
• The Court found that the alleged inconsistencies among prosecution witnesses and the exhibit were minor and did not affect the core facts of the prosecution's case; the CCTV footage was correctly treated as corroborative of the appellant's possession of the bag (not proof of its contents), and the chain of custody was adequately established with no evidence of tampering or substitution.
• The Court affirmed that the prosecution proved possession, custody, control and knowledge beyond reasonable doubt through cumulative direct evidence, properly triggering the section 37(da) presumption of trafficking, which the appellant failed to rebut on a balance of probabilities as his defence was an unsupported bare denial; the appeal was dismissed and the conviction and sentence affirmed.