The court held that failure to consider alternative charges and adhere to procedural requirements constitutes a mistrial in capital cases, warranting acquittal.

[1] Both the appellant/accused's appeal against conviction and sentence came up for hearing on 25 January 2013 and upon hearing we were unanimous in allowing the appeals. My learned brothers Mohamed Apandi Ali JCA and Linton Albert JCA have read the draft judgment and approved the same. This is our judgment.

[2] At the outset we must say this is a classic case of mistrial as well as miscarriage of justice. The judgment reflects that the learned trial judge had not directed her mind to the Criminal Procedure Code , practice and procedure relating to criminal jurisprudence. Such a judgment is unusual in capital punishment cases. We will elaborate this issue in later part of the judgment.

[3] The 1st and the 2nd appellant are represented by different solicitors. The learned counsel for the 2nd appellant by and large adopts the submission of the 1st appellant. The learned counsel for the 1st appellant summarises the complaints to four issues which is reflected in the petition of appeal. They are as follows:

(a) The learned trial judge misdirected herself when she failed to direct her mind to the alternative charges preferred. Further, at the end of the defence case Her Ladyship failed to rule whether the prosecution had proved the trafficking charge in respect of the 12 grams of Nimetazepam (P5) has been proven by the prosecution beyond reasonable doubt;

(b) The learned trial judge erred in law and in fact when she prematurely and/or wrongly impeached both SP2 (Taj Malaysia Singh) and SD2 (Lim Sek Yee);

(c) The learned trial judge misdirected herself when she found that there was mens rea for possession proven and in any event she erred in invoking the trafficking definition under s 2 to rule that there was a prima facie case of trafficking and;

(d) The learned trial judge erred when she failed to appreciate the defence of the 1st appellant.

Brief Facts Of The Charge And Judgment

[4] Both the appellant's as per exh P4 (Charge) were charged for trafficking in 143.8 grams of methamphetamine under s 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA 1952) to be read with s 34 of the Penal Code . Similarly they were also charged as per exh P5 (charge) for trafficking 12 grams of nimetazepam.

[5] As alternative to both the charges, they were charged for possession, as per exhs P6 and P7 under s 12(2) of DDA 1952 to be sentenced under s 39A(2) to be read with s 34 of the Penal Code . Exhibits P4 to 7 inter alia read as follows:

P4

"Bahawa kamu bersama pada 3 Februari 2008, jam lebih kurang 6.30 petang di kawasan Restoran Hwa Keng, Jalan Kenari 6, Bandar Puchong Jaya, Puchong, di dalam Daerah Petaling di dalam Negeri Selangor Darul Ehsan dalam melaksanakan niat bersama, kamu telah memperedarkan dadah berbahaya jenis Methamphetamine seberat 143.8 gram dan dengan itu telah melakukan suatu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta yang sama yang dibaca dengan s 34 Kanun Keseksaan."

P5

"Bahawa kamu bersama-sama pada 3 Februari 2008, jam lebih kurang 6.30 petang di kawasan Restoran Hwa Keng, Jalan Kenari 6, Bandar Puchong Jaya, Puchong, di dalam Daerah Petaling di dalam Negeri Selangor Darul Ehsan dalam melaksanaka