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2025 MarsdenLR 1101
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 established possession, commuted the death sentence to 30 years imprisonment, and clarified the interpretation of life imprisonment as 30 years under existing law.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a) and 39B(2) - Appeal against conviction and sentence for drug trafficking - Appellant convicted for trafficking 50.30 grams of Methamphetamine - The conviction was affirmed as the evidence established direct possession and trafficking - The death sentence was commuted to 30 years imprisonment with 12 strokes of whipping under the amended law. (Paras 1, 6, 27, 37)
(B) Presumption of trafficking - The statutory presumption under s 37(da)(xvi) applies when the weight of drugs exceeds the threshold, placing the burden on the accused to prove otherwise. (Paras 23, 24)
(C) Life imprisonment interpretation - Life imprisonment under s 39B(2) of the DDA 1952 is interpreted as a 30-year sentence per s 3 of the Criminal Justice Act 1953. (Paras 32, 34)
Facts of the case:
The Appellant was arrested on 10 June 2018 for trafficking Methamphetamine. Evidence included police testimony, drug analysis, and the Appellant's conduct during arrest. (Paras 8-12)
Findings of Court:
The evidence confirmed the Appellant's possession of the drugs, and the conviction was deemed safe. The death sentence was set aside in favor of a 30-year sentence with whipping. (Paras 22, 37)
Issues: The main issues included the validity of possession evidence, the application of statutory presumption of trafficking, and the interpretation of life imprisonment following legislative amendments. (Paras 5, 23, 32)
Ratio Decidendi: The court emphasized that possession of drugs was established through credible evidence and confirmed the statutory presumption of trafficking due to the weight of the drugs exceeding the threshold. The interpretation of life imprisonment was aligned with existing penal laws. (Paras 20, 32)
Result: Conviction affirmed; death sentence commuted to 30 years imprisonment with 12 strokes of whipping.
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 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 gram 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 s 39B (2) of the same Act."
The Prosecution 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" (Exhibit "P34"), Inside P34, there was a small black zippered bag containing two clear plastic packets, each with granular substances suspected to be syabu (Methamphetamine). PW2 also found one white and pink plastic container that held 20 clear plastic packets of varying sizes, each containing granular substances suspected to be syabu (Methamphetamine), as well as folded aluminium foils, one card with the name "Pagal Midzfar Abduhari," and a 555 book.
[12] PW2 instructed PW3 to take photographs of the crime scene, The photographs were later tendered in Court and marked as exhibit "P33[1-6]." He informed the Appellant of th
