KOTA KINABALU: A former chef escaped the gallows after the Court of Appeal yesterday set aside his conviction and death sentence for trafficking in 222.77 grams of syabu four years ago.
The appellate court comprising Justices Datuk Syed Ahmad Helmy, Mah Weng Kwai and High Court judge Datuk David Wong Dak Wah unanimously allowed Len Chea Hoe’s appeal against conviction and death sentence imposed by the Kota Kinabalu High Court on Nov 3, 2010.
The Court of Appeal however ruled that the prosecution had sufficiently proved the offence of drug possession under Section 12 (2) of the Dangerous Drugs Act 1952, which provides for a jail term of between five and 30 years, and not less than 10 strokes of the cane.
The appeal judges then sentenced the 46-year-old Len, who was represented by counsel Hamid Ismail and Chin Tek Ming, to 20 years’ jail and 10 strokes of the cane.
In setting aside conviction and sentence, Syed Ahmad, who chaired the panel, held that the trial judge had contravened the rule of double presumption in invoking the presumption of possession under Section 37 (d) of the Dangerous Drugs Act and the presumption of trafficking under Section 37(da) of the same Act.
When pleading for leniency, Chin told the court that the appellant is a married man with six children aged between 15 and 25.
He said the appellant was a chef at Beringis Restaurant prior to his arrest and was a first offender.
Chin told the court the appellant knew that he was lucky to have been acquitted of the drug trafficking conviction and he expressed extreme regret of the incident.
The court was also informed that the appellant was said ti have suffered a stroke and has hypertension and was admitted to Queen Elizabeth Hospital in 2003.
Chin also pointed out that the appellant has been in custody since Sept 10, 2009 – the day he was first arrested.
In passing sentence, Syed Ahmad held that public interest was foremost consideration in passing an adequate sentence and that Parliament in its wisdom has increased the penalty under Section 39A (2) of the Dangerous Drugs Act (DDA) in view of the rampant number of offences related to drug and is reflected by the increased provision of 30 years’ imprisonment instead of 20 years before the amendment to the Act.
Syed Ahmad also pointed out that the total weight of the drug was seven times more than the minimum weight provided by the law.
The appellant was convicted and sentenced to death by the Kota Kinabalu High Court after he was found guilty of trafficking in the 222.77 grams of methamphetamine at the parking space in front of the Sabah Trade Centre in Likas about 1.10pm on Sept 10, 2009.
He was convicted under Section 39B (1) (a) of the DDA 1952 which provides for the mandatory death sentence upon conviction.