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2024 MarsdenLR 1641
COURT OF APPEAL PUTRAJAYA
KHAIROL ANUAR ZAKARIA – Appellant
Versus
PP – Respondent
[Criminal Appeal No: D-05(M)-518-12/2021]
The court affirmed the conviction for drug trafficking while substituting the death penalty with life imprisonment, reflecting legislative changes allowing judicial discretion in sentencing.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 39B(1)(a) and 39B(2) – Accused charged with trafficking in 1227.9 grams of cannabis – Prosecution proved case beyond reasonable doubt – Mandatory death sentence imposed by High Court – Appeal against conviction withdrawn, sentence substituted with life imprisonment and caning. (Paras 1-9)
(B) Evidence – Elements of possession, knowledge, and trafficking established – Testimonies of police and family members corroborated – Presumption of trafficking applied under s 37(da) of DDA. (Paras 4-5)
Facts of the case: The accused was charged with trafficking cannabis, found guilty after trial, and sentenced to death. The appeal against conviction was withdrawn, leading to a substituted sentence of life imprisonment.
Findings of Court: The High Court found the prosecution's evidence credible and established the elements of the offence, including possession and knowledge of the drugs.
Issues: The main issues included the sufficiency of evidence for possession and knowledge, and the application of statutory presumptions regarding trafficking.
Ratio Decidendi: The court held that the evidence presented met the legal standards for proving possession and trafficking, and the mandatory death penalty was replaced with life imprisonment following legislative amendments.
Result: Conviction affirmed; death penalty substituted with life imprisonment and caning.
JUDGMENT
Introduction
[1] The accused was charged with an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 (" DDA ") punishable under s 39B(2) of the . The charge read as follows:
Charge:
"Bahawa kamu pada 17 April 2017, jam lebih kurang jam 2.55 petang bertempat di dalam sebuah rumah beralamat di No 83, Kampung Dangar, Rantau Panjang, di dalam Jajahan Pasir Mas, di dalam negeri Kelantan telah mengedar dadah berbahaya iaitu 1227.9 gram Cannabis dan dengan itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s 39B(2) Akta yang sama."
("That you on 17 April 2017, at approximately 2.55 pm in a house with an address at No 83, Kampung Dangar, Rantau Panjang, in Jajahan Pasir Mas, in the state of Kelantan, had trafficked in a dangerous drug to wit 1227.9 grams of Cannabis and thereby you have committed an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under s 39B(2) of the same Act.")
[2] At the end of the trial, the High Court found that the prosecution had succeeded in proving its case beyond reasonable doubt, and accordingly the accused was found guilty and convicted of the offence. The High Court imposed the mandatory death sentence as then prescribed by law.
Prosecution Case
[3] The prosecution called 9 witnesses. The evidence adduced at the prosecution stage showed that:
(a) On 17 April 2017 at approximately 2.55 pm, Insp Muhamad Hanif Bin Abd Halim (SP4) together with a team of 12 policemen from the 9th PGA Battalion Intelligence team raided a house at address No 83, Kg. Dangar Panjang, 17200 Rantau Panjang, Kelantan ("the said house");
(b) Before the raid, SP4 had ordered the raiding party consisting of Sjn Rahizal bin Abdul Rahim, Cpl Rosdi, Cpl Zaki and Cpl Zainuddin (SP8) to follow SP4 into the house while the other members of the team were instructed to stand guard outside the house;
(c) SP4 confirmed that at that time the door of the house was half open and not locked, he then entered and introduced himself as a Senior Police Officer by showing his authorization card to the accused who was at that time in the living room of the house and asked the accused to show his identity card. After confirming the identity of the accused, SP4 instructed Sjn Rahizal bin Abdul Rahim to conduct an examination of the accused's body, however there was nothing incriminating on the accused's body;
(d) SP4 then read out the words of caution under s 37B(1)(b) DDA 1952 to the accused and proceeded to question the accused in Bahasa Malaysia. The questions posed by SP4 to the accused and the answers by the accused were recorded by SP4 as stated in the police report made by him (Rantau Panjang Rpt: 1317/17);
(e) The accused then led SP4 and his team members to a location in the first room on the left side of the upper floor of the house and showed a package [Exhibit P7] on the side of the wall in the room;
(f) In the presence of the accused, SP4 inspected the package (Exhibit P7) which had the words 'kito smart different' written on it, and inside it was a rectangular package wrapped in gold colored aluminum foil [Exhibit P8] in which there were green compressed dried leaves suspected to be cannabis, together with (1) transparent plastic [P9] containing (5) small pieces of greenish compressed dried leaves suspected to be cannabis [P9 a-e] and (1) transparent plastic [P10] containing (6) pieces of greenish compressed dried leaves suspected to be cannabis [P10 a-f];
(g) SP4 seized all the case items, and informed the accused of the offence suspected to have been committed by him and arrested the accused;
(h) While leaving the house, a Malay man named Sharul Azwan bin Samsuddin [SP7] came on a motorcycle to meet the accused. SP4 introduced himself as a Police Officer and detained SP7; and
(i) All the case exhibits together with the accused and SP7 were brought to IPD Pasir Mas and handed over to the Investigating Officer Insp Zulfadly S
