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2025 MarsdenLR 4387
COURT OF APPEAL PUTRAJAYA
PAGAL MIDZFAR ABDUHARI – Appellant
Versus
PP – Respondent
[Criminal Appeal No: S-05(M)-121-03-2022]
The court affirmed the conviction for drug trafficking based on overwhelming evidence and commuted the death sentence to 30 years imprisonment with 12 strokes of whipping, reflecting legislative changes.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a) and 39B(2) - Appeal against conviction and sentence for drug trafficking - Appellant found guilty of trafficking 50.30 grams of Methamphetamine and sentenced to death - The Appellant withdrew the appeal on conviction but contested the sentence - Conviction affirmed due to overwhelming evidence of possession and trafficking - The statutory presumption of trafficking was invoked as the weight of drugs exceeded the threshold - The death sentence commuted to 30 years of imprisonment with 12 strokes of whipping following the Abolition of Mandatory Death Penalty Act 2023. (Paras 1, 4, 22, 36, 37)
Facts of the case:
The Appellant was charged with trafficking Methamphetamine, with evidence of possession established through police testimony and the recovery of drugs during arrest. The Appellant's defence was a bare denial.
Findings of Court:
The evidence from the prosecution was credible, establishing the Appellant's possession of the drugs and affirming the conviction. The death sentence was reconsidered in light of recent legislative changes.
Issues: The main issues addressed were the sufficiency of evidence for possession and trafficking, and the appropriateness of the death sentence given the recent amendments to the law.
Ratio Decidendi: The court determined that the Appellant's conduct during arrest indicated knowledge of the drugs, supporting the conviction. The death sentence was deemed excessive, leading to a commutation based on legislative amendments.
Result: The appeal on conviction was dismissed; the death sentence was set aside, and life imprisonment for 30 years with 12 strokes of whipping was imposed.
| Table of Content |
|---|
| 1. appeal context and nature of conviction. (Para 1 , 2 , 3 , 4) |
| 2. issues and focus of the appeal. (Para 5 , 6) |
| 3. details of the prosecution's case. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 4. high court's findings on possession and trafficking. (Para 18 , 19 , 20 , 21 , 22 , 23) |
| 5. assessment of the appellant's defense. (Para 24 , 25) |
| 6. amendments to sentencing provisions. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34) |
| 7. arguments regarding sentence. (Para 35) |
| 8. final decision on sentence. (Para 36) |
Introduction
[1] This is an appeal by the Appellant (Pagal Midzfar Abduhari, the Accused) appealing on the conviction and sentence imposed by the High Court on 10 March 2022. Following the trial, the Appellant was found guilty of an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 (" DDA 1952") and sentenced to death under s 39B(2) of the same Act.
[2] The Appellant was charged under s 39B(1)(a) of the DDA 1952 for drug trafficking, to wit, 50.30 grams of Methamphetamine. The Appellant pleaded not guilty to the charge and went for a full trial before the learned High Court Judge ("learned HCJ").
[3] At the conclusion of the trial, the learned HCJ convicted and sentenced the Appellant under the said charge.
[4] Aggrieved by the conviction and sentence, the Appellant appealed to this Court.
The Appeal Before Us
[5] The issues raised in this appeal, as stated in the Petition of Appeal, revolve around the element of possession and trafficking. At the appeal hearing, the learned counsel for the Appellant informed this Court that the Appellant would like to withdraw the appeal regarding the conviction held by the trial Court. The Appellant will proceed with the appeal on the sentence.
[6] Although the Appellant chose to proceed with the appeal on the sentence, we believe it is necessary to outline our reasons for affirming the conviction upheld by the trial Court.
The Charge
[7] The Appellant was charged under s 39B(1)(a) of the DDA 1952 for trafficking 50.30 grams of Methamphetamine.
The charge against the Appellant reads as follows:
"That you, on the 10th day of June 2018, at about 11.00 am, located at Jambatan 6, Lorong 1, Kg Tinusa 2, Batu 7, in the District of Sandakan, in the State of Sabah, did on your own behalf traffic in a dangerous drug to wit 50.30 grams of Methamphetamine and that you have thereby committed an offence under s 39B(1)(a) of the Dangerous Drugs Act, 1952 (Act 234) and punishable under s39B(2) of the same Act."
The Prosecution's Case
[8] On 9 June 2018, PW2 received information that a drug-related activity was set to occur at the end of Jambatan 6, Lorong 1, Kg Tinusa 2, Batu 7, Sandakan. He then assembled a team of seven police personnel and briefed them on the matter.
[9] The next day, at about 9:00 am, PW2 and his team arrived at the location and waited. At approximately 10:55 am, PW2 spotted a small boat approaching the end of the bridge (Jambatan 6) with only one male on board. The man then came onto the bridge from the boat with a bag slung across his body. He was acting suspiciously, walking back and forth while looking around him.
[10] PW2 said he suspected the person was the target, based on the information he received. He approached with his team members and introduced themselves as the police. However, the person reacted by running away to the side of the house at the end of the bridge. PW2 gave pursuit to try to apprehend him, but as he got closer, the person became aggressive and resisted arrest. This resulted in a scuffle that caused injuries to PW2's left and right arms The person also sustained injuries to his forehead, and both of his eyes were swollen. Eventually, the person was apprehended. In Court, PW2 identified the person as the Appellant.
[11] PW2 then conducted a search on the Appellant and the sling bag he had with him, which bore the word "SWAT" (exh "P34"). Inside P34, there was a small black zippered bag containing two clear plastic packets, eac
