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2022 MarsdenLR 2994
COURT OF APPEAL PUTRAJAYA
JUNAIDI BERIMANG & ANOR – Appellant
Versus
PP & ANOTHER APPEAL – Respondent
[Criminal Appeal Nos: Q-05(M)-360-09/2020 & Q-05(M)-364-09/2020
The court affirmed convictions for drug trafficking while a dissenting opinion altered the death sentence to life imprisonment, citing amendments that allow for discretion based on defendants’ cooperation with law enforcement.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 39B(1)(a), 39B(2), and 39B(2A) – Trafficking in dangerous drugs – Appellants were convicted of trafficking 1400.20 grams and 1350.20 grams of Methamphetamine, respectively – Majority affirmed the conviction; dissenting judge reduced the death sentence to life imprisonment with whipping based on the failure to meet condition (d) of assisting law enforcement. (Paras 5, 44, 45).
Facts of the case: Appellants were arrested along with three others at a police checkpoint while allegedly trafficking Methamphetamine on 15 February 2018. Only Junaidi and Riko were convicted and sentenced to death, while their accomplices were acquitted. (Paras 1-4).
Findings of Court: The High Court found that Junaidi and Riko had knowledge of the drugs they carried and were guilty under the Dangerous Drugs Act, but the majority justices held that their conduct may not meet the new statutory provisions for lesser sentencing. (Paras 19-20, 44).
Issues: Central issues included whether the court properly considered the absence of evidence regarding the appellants' cooperation with law enforcement relative to sentencing under the amended Act. Conditions for lesser sentencing were also debated. (Paras 44-45).
Ratio Decidendi: The majority ruled based on established evidence of trafficking while acknowledging the legal changes regarding sentencing discretion, particularly under new subsections of the Dangerous Drugs Act. (Paras 44-48).
Result: Appeals affirmed in conviction; however, dissenting opinion altered the death sentence to life imprisonment and whipping as per new sentencing guidelines. (Paras 47, 151).
Introduction
[1] There are two appeals before us. They arise from three criminal cases in which five Indonesian citizens were charged with trafficking drugs. The appellant in Appeal Q-05(M)-360-09/2020 is Junaidi Bin Berimang (Junaidi). He was charged with Napi Bin Sibu in Criminal Case No: KCH-45A-18/8-2018. The charge read as follows:
That you together, on the 15 February 2018, at about 4.35 pm at JPG Pos, Teluk Melano, in the District of Lundu, in the State of Sarawak in furtherance of common intention of you all did traffic in dangerous drugs, to wit 1400.20 grammes of Methamphetamine, thereby you have committed an offence under para 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under subsection 39B(2) of the same Act and read together with s 34 of the Penal Code.
[2] The appellant in Appeal Q-05(M)-364-09/2020 is Riko Dwi Yanto (Riko). He was charged with Buhairi Bin Napi in Criminal Case No: KCH-45A-17/8-2018. The charge read as follows:
"That you together, on 15 February 2018 at about 4.30 pm at JPG Pos Teluk Melano, in the District of Lundu, in the State of Sarawak, in furtherance of common intention of you all did traffic in dangerous drug, to wit 1350.20 grammes of Methamphetamine, thereby you have committed an offence under para 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under subsection 39B(2) of the same Act and read together with s 34 of the Penal Code.
[3] Karni Bin Bujang (Karni) was the lone accused in Criminal Case No: KCH-45A-19/8-2018. The charge against him read as follows:
That you on 15 February 2018, at about 4.40 pm., at JPG Pos Teluk Melano, in the District of Lundu, in the State of Sarawak, did traffic in dangerous drugs, to wit, 777.8 grammes of Methamphetamine thereby you have committed an offence under para 39B(1)(a) of the Dangerous Drugs Act 1952 and which is punishable under subsection 39B(2) of the same Act.
[4] All three cases were jointly tried. The decision of the learned High Court Judge at the end of the case for the prosecution was as follows. In Criminal Case No: KCH-45A-18/8-2018, Junaidi was called to enter his defence whereas his co-accused, Napi bin Sabu was acquitted. In Criminal Case No: KCH-45A-17/8-2018, Riko was called to enter his defence whereas his co-accused, Buhairi bin Napi was acquitted. In Criminal Case No: KCH-45A-19/8-2018, the sole accused, Karni bin Bujang was acquitted after his defence was called on the reduced charge of possession.
[5] The instant appeals are by Riko and Junaidi who were convicted and sentenced to death at the end of the trial. The prosecution did not appeal against the acquittal of Karni, Buhairi and Napi. At the conclusion of the hearing before us, we unanimously affirmed the conviction of Junaidi and Riko. However, in respect of the sentence, Dato' Hadhariah Syed Ismail JCA and I by majority affirmed the decision the High Court. Dato' Lee Swee Seng JCA dissented and reduced the death sentence to one of imprisonment for life and whipping of 15 strokes.
Summary Of Case For Prosecution
[6] All five accused persons which includes the appellants herein, ie Junaidi and Riko were arrested at a Police Check Point known as JPG POS Teluk Melano in the District of Lundu in Sarawak on 15 February 2018. Inspector Nawinthan a/l Selvaraja (PW 5) had received prior information that that five suspicious looking Indonesians were spotted outside a shop and were about to leave Telok Melano and head towards Temajo in Indonesia. He stationed himself with his men at the check point. The five accused persons approached the check point in two motorcyles and a scooter at about 4.30 pm and were stopped. Junaidi was the pillion passenger of the motorcycle ridden by Napi bin Sibu whereas Riko was the pillion passenger of the Honda Vario scooter ridden by Buhairi bin Napi. Karni who was on the third motorcycle did not carry any pillion passenger.
[7] During inspection by the police team, Junaidi and Riko were
