The Court of Appeal has set aside a former contract worker’s conviction on three counts of drug trafficking, substituting them with possession charges, after ruling that the trial judge had committed an error in law.
Tay Cher Boon, 41, was today sentenced to 12 years’ jail and ordered to be whipped 20 times instead.
Justice Azmi Ariffin said the judge used the phrase “jagaan, kawalan and pengetahuan” (custody, control and knowledge), a reference to direct possession.
He also noted that the judge invoked the Section 37(d) presumption under the Dangerous Drugs Act 1952.
“This misapplication of the presumption is not only erroneous but has prejudiced the appellant as it placed a higher burden to rebut the presumption based on the balance of probabilities,” he said in his broad grounds.
Azmi said a careful reading of the High Court judgment revealed that the prosecution had established a prime facie case by proving Tay had custody, control and knowledge of the drugs.
He said Tay failed to create a reasonable doubt in the prosecution’s case when setting out his defence.
However, he said, the trial judge’s approach revealed uncertainty in determining whether the case involved actual or presumed possession, given the available evidence.
Justice Azman Abdullah and Zaini Mazlan also heard the appeal.
Tay was arrested together with Gan Hock Seng, who died in custody while awaiting trial.
He was charged with trafficking in 313gm of methamphetamine, 661gm of ketamine and 2,232gm of MDMA (ecstasy) at a house on Jalan Setia Indah, Shah Alam, at about 6.15pm on Feb 14, 2017.
He was sentenced to 30 years in jail and 12 strokes of the rotan for each of the offences.
Today, the bench revised his sentence to 12 years’ imprisonment and 10 strokes for each of the charges related to the possession of methamphetamine and MDMA, and three years for possessing ketamine.
The bench ordered the prison sentences to run concurrently, meaning he will serve 12 years in jail and receive 20 lashes.
Counsel Hisyam Teh Poh Teik said Tay would have completed his jail term in January this year after a one-third remission given to prisoners for good behaviour.
“He is expected to walk out of prison soon after being whipped,” he told FMT.
Lawyers Low Wei Loke and Kee Wei Lon also represented Tay, while deputy public prosecutor Zaki Asyraf Zubir appeared for the prosecution.
