Tan Kok Bin
[2025] MLRAU 154 v. PP pg 1
TAN KOK BIN
v.
PP
Court of Appeal, Putrajaya
Azizah Nawawi, Mariana Yahya, See Mee Chun JJCA
[Criminal Appeal No: S-05(M)-426-11/2021]
29 May 2025
Legislation referred to:
Dangerous Drug Act 1952, ss 37(d), 39B(1)(a), (2)
Counsel:
For the appellant: Zahir Hussein Ahmad Shah; M/s Zahir Shah & Co
For the respondent: Atiqah Abdul Karim @ Husaini; TPR, Jabatan Peguam
Negara
[Order accordingly.]
Case Progression:
High Court: [2021] MLRHU 1639
JUDGMENT
Azizah Nawawi JCA:
Introduction
[1] Before us, the Appellant had appealed against the conviction and sentence
for an offence of trafficking in dangerous drugs under s 39B(1)(a) of the
Dangerous Drug Act 1952 ("DDA") and punishable under s 39B(2) of the
same Act.
[2] At the conclusion of the joint trial, the learned trial Judge made a finding
that the prosecution had proven their case against the Appellant (together with
five other persons) beyond reasonable doubt. A guilty verdict was pronounced
and all the accused persons, including the Appellant, were convicted on the
preferred charge and were sentenced to death. Another appellant, Kho Yang
Jin had since withdrawn his appeal against conviction.
[3] On 14 November 2024, we made a finding to affirm the conviction entered
by the trial Judge. However, we allow the appeal against the sentence of death
penalty and commute the same with life imprisonment from the date of arrest
with 14 strokes of whipping. The Appellant is now appealing against the
sentence imposed by this Court.
The Prosecution's Case
Tan Kok Bin
pg 2 v. PP [2025] MLRAU 154
[4] Customs officer Imawati binti Malik (PW9) testified that on 27 February
2018, flight AK 5192 arrived at Sandakan Airport from Kuala Lumpur at
around 9:15 am. All passengers, including the Appellant, were instructed to
scan their luggage, and the Appellant complied, placing the luggage and
backpacks in the scanning machine.
[5] After scanning the luggage, including the Appellant's, customs officer Azmi
bin Soaibah (PW8) noticed suspicious images on the scanner and alerted
PiKK Rahimah. At the checking table, the Appellant (and five others) were
asked to open their luggage but they hesitated, merely scrolling the
combination locks. While the Appellant was detained at the inspection area
(together with five others), PW9 saw all of them ripping off the tags of their
luggage, and attempting to hide or throw away the luggage tags.
[6] While being escorted to the Customs Office, the Appellant attempted to
flee with the others, leaving their luggage behind, but they were all re-arrested.
At the Customs Office, the raiding team inspected the luggage. Since the
Appellant claimed not to know the lock combinations, officer PiK Salestine
Sujah dismantled the locks. Inside each piece of luggage, packages wrapped in
aluminium foil were found, which tested positive for methamphetamine using
Trunac equipment.
Findings Of Trial Judge
[7] The duty of a trial court at the close of the prosecution's case is to decide,
subjecting the evidence to maximum evaluation, whether a prima facie case
has been made out that would warrant calling for the appellants to enter their
defence. The prosecution has a duty to establish a prima facie case on the
essential elements of each of the charges, that is:
(i) the substances seized were methamphetamine having a net weight
as set out in the respective charges;
(ii) the accused were in possession; and
(iii) trafficking in the drugs.
[8] To establish the 1st element, the prosecution called the chemist, PW2, who
gave evidence that the net weight of methamphetamine found in the packets in
the possession of the Appellant and the other accused persons are as follows:
(i) Tan Kok Bin - the substance in 20 packets found in the luggage (P4)
contained 13,718.5 grams of methamphetamine.
(ii) Tan Kok Chuan - the substance in 20 packets found in the luggage
(P12) contained 14,429.2 grams of methamphetamine.
(iii) Chang Chiang Hao - the substance in 19 packets found in the
luggage (P24) contained 13,250.0 grams of methamphetamine.
Tan Kok Bin
[2025] MLRAU 154 v. PP pg 3
(iv) Kho Yang Jin - the substance in 20 packets found in the luggage
(P32) contained 12,951.0 grams of methamphetamine.
(v) Lee Shi Chuan - the substance in 22 packets found in the luggage
(P42) contained 17,919.2 grams of methamphetamine.
[9] The learned Judge had duly considered all the evidence before him that the
Appellant was having custody and control of the said drugs at the material
time. This is based on the direct evidence from the witnesses (RO, PW9, and
PW7), the AK5192 flight manifest, the luggage tags and the CCTV footage
showing all five appellants in the arrival hall at Sandakan Airport, and the
Customs personnel observations of the appellants placing their luggage in the
scanner at the airport, and the appellants' actions, including tearing off their
luggage tags and attempting to escape.
[10] After thoroughly evaluating the evidence at the end of the prosecution's
case, the learned Judge concluded that the prosecution had established a
prima facie case on the identity of the drugs, the act of trafficking, and the
primary facts of control and custody by the Appellant, thereby invoking the
presumption under s 37(d) DDA. The learned judge then called the Appellant
to rebut this presumption on a balance of probabilities, calling on the
Appellant to enter his defence.
[11] We are therefore of the considered opinion that the learned Judge had
rightly decided the act of trafficking by the Appellant and a case beyond
reasonable doubt was proven against the Appellant.
[12] With regard to the defence, the main defence raised by the Appellant is
the defence of innocent carrier. The Appellant claim that he (and the others)
were innocent carriers for a person named Ng Ka Ming (also known as Ah
Mian or Ah Min) from Pantai Remis.
[13] Based on the test of wilful blindness set by the apex court, the learned
Judge rejected the defence of innocent carrier, as the Appellant had good
reason to be suspicious about the contents of the luggage, (inter alia) which
supposedly contained large amounts of cash.
[14] Consequently, we are of the considered opinion that there is no error in
the evaluation of the evidence by the learned trial Judge and it is not wrong for
the court to conclude that the defence raised by the Appellant cannot be
accepted.
[15] Before this Court, the Appellant submitted that the conviction is flawed
because of a break in the chain of events, in that the timestamps on various
photographs and the memory card contradicted the prosecution's claim that
the searches and marking of drug exhibits occurred from 5 pm. on 27 February
2018 until 6:50 am. on 28 February 2018.
[16] However, we agree with the findings of the learned Judge that there is no
Tan Kok Bin
pg 4 v. PP [2025] MLRAU 154
break in the chain of evidence that would cast doubt on the identity of the
drugs, as the searches and markings took place from the late afternoon of 27
February 2018 until 6:50 am. on 28 February 2018. The whereabouts of the
drugs were accounted for.
Our Decision
[17] We are therefore of the considered opinion that the conviction is safe and
that the Appellant's appeal is without merit. We find no error made by the
learned trial judge in his findings of facts and came to a conclusion at the end
of defence case that the prosecution had proven its case beyond a reasonable
doubt, found the Appellant guilty of the preferred charge and convicted him.
The Appellant had failed to cast a reasonable doubt as to his guilt.
Accordingly, we affirm the decision of the learned trial Judge on the
conviction.
[18] During mitigation, the Appellant submitted that he is a first offender and
that at the time of arrest he was only 21 years old. He is now remorseful and
plan to turn over a new leaf.
[19] On sentence, with the coming into force of the Abolition of Mandatory
Death Penalty Act 2023 (Act 846) on 4 July 2023, the Court may now exercise
its discretion to impose either the death penalty by hanging or life
imprisonment with no less than 12 strokes of whipping, taking into account
both the mitigating and the aggravating factors.
[20] With respect to sentencing, having heard the parties on the appropriate
sentence in light of Act 846, we are inclined to commute the death sentence
imposed by the learned trial judge to 30 years' imprisonment and 14 (fourteen)
strokes of whipping. The term of imprisonment shall commence from the date
of arrest.
