A three-member Court of Appeal bench, chaired by Hanipah Farikullah, said the High Court judge had misdirected himself in placing the burden of proof on the appellants.
The other judges on the bench were Ahmad Nasfy Yasin and Mariana Yahya.
“There is a failure of justice. The conviction and sentence are set aside,” Hanipah said in allowing the appeals by Lee Yuan Cheong, 29, and Poen Thiam Leong, 49.
Lee, Poen and Chong Yew Chai, 54, were initially charged with two counts of trafficking at a house on Jalan Tasek Dedap 1 in Pantai Sepang Putra, Sungai Pelek, Sepang, Selangor.
On the first count, they were charged with trafficking 93.04gm of methamphetamine, or syabu. The second count was also for drug trafficking but involved 51.6kg of syabu.
The first offence was allegedly committed in the house in Sepang, and the second in a car nearby at about 5pm on Aug 31, 2015.
At the close of the defence case in 2019, the trial judge had amended the charge to possession and sentenced all three men to 12 years jail on the first count and another 23 years for the second.
The judge ordered the jail terms to run concurrently, which meant that they will serve only 23 years.
Lee and Poen were also ordered to be given 20 strokes of the rotan, while Chong escaped whipping as he was above 50 years of age.
Chong, however, did not appeal against his conviction and sentence.
Lawyer Hisyam Teh Poh Teik today submitted that the prosecution’s case was compromised as the police did not investigate the house tenant, Khoo Suk Kim.
“He was not produced in court nor offered to the defence. There is a gap in the prosecution’s case,” said Hisyam, who was assisted by Low Wei Loke.
Hisyam said the trial judge was also wrong to state that it was the duty of the appellants to produce Khoo.
“This is a failure of justice as the trial judge did not appreciate the important legal principle (that the burden of proof is always with the prosecution),” he said.
Deputy public prosecutor Eyu Ghim Siang submitted that the judge made a correct finding that the two were guilty of possession.
“They were in custody and in control of the drugs. The judge rightly invoked the presumption of knowledge and possession,” he said.