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2025 MarsdenLR 3599
COURT OF APPEAL PUTRAJAYA
MAHATHIR USMAN – Appellant
Versus
PP – Respondent
[Criminal Appeal No S-05(M)-508-12/2021]
The court has discretion to impose life imprisonment instead of the death penalty for drug trafficking offenses, considering mitigating factors and recent legislative amendments.
Headnote:(A) Dangerous Drugs Act 1952 - Section 39B(1)(a) - Abolition of Mandatory Death Penalty Act 2023 - Section 54 - Conviction for drug trafficking - Appellant sentenced to death, later substituted to life imprisonment and whipping by agreement of parties - The court has discretion to impose life imprisonment instead of death penalty post amendment - The Appellant's sentence was reduced based on the nature of the offense and mitigating factors. (Paras 1, 13, 15, 17)
(B) Sentencing - The court maintains discretion in sentencing for drug trafficking offenses post legislative amendments, balancing the severity of the offense with mitigating circumstances such as lack of prior criminal record and absence of evidence of selling drugs. (Paras 14, 16)
Facts of the case:
The Appellant was convicted for trafficking 368.75 grams of Methamphetamine and initially sentenced to death. The appeal focused solely on the sentence, with the Appellant seeking substitution to life imprisonment. (Paras 1, 4, 17)
Findings of Court:
The court affirmed the conviction but substituted the death sentence with life imprisonment of thirty years and twelve strokes of whipping based on the agreement of both parties and legislative changes. (Paras 15, 17)
Issues: The main issue was the appropriateness of the death penalty versus life imprisonment in light of recent legislative changes and mitigating factors. (Paras 13, 16)
Ratio Decidendi: The court reasoned that following the amendment allowing discretion in sentencing, it was appropriate to substitute the death penalty with life imprisonment, considering the nature of the crime and the Appellant's background. (Paras 14, 15)
Result: Appeal allowed; death sentence substituted with life imprisonment and whipping.
Introduction
[1] The Appellant was convicted by the Sandakan High Court under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("the DDA ") and sentenced to be hanged by the neck until his death ("the death sentence") on 13 December 2021.
[2] According to the Notice of Appeal filed by the Prisons Department on behalf of the Appellant, the appeal is only against the sentence imposed on the Appellant.
[3] On the date of hearing, the Appellant informed the Court that they have made a representation to the Attorney General to have the death penalty substituted with life imprisonment. The learned Deputy Public Prosecutor has agreed to the substitution of sentence from the death sentence to life imprisonment of thirty (30) years with twelve (12) strokes of whipping.
The Background Facts
[4] The charge against Mahathir Bin Usman and one Ronel Bin Ajirul is drug trafficking under s 39B(1)(a) of the DDA read together with s 34 of the Penal Code . They were accused of trafficking 368.75 grams of Methamphetamine on 26 July 2018, at approximately 2:15 pm, in front of Restaurant Sampan, Bandar Letat Jaya, Sandakan, Sabah. The charge reads as follows:
"That you both, on the 26th day of July 2018, at about 02.15 pm, located at the front of Restaurant Sampan, Bandar Letat Jaya, in the district of Sandakan, in the State of Sabah, in furtherance of common intention of you both, did on your own behalf traffic in a dangerous drug to wit 368.75 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, and read with s 34 of the Penal Code ."
[5] The evidence presented against the Appellant is based on the evidence PW4, the arresting officer, who testified that he observed the Appellant carrying a grey knapsack with the words "Camel MOUNTAIN" from the bus station to the restaurant. When approached by the police, the Appellant and the other accused person attempted to flee but were apprehended after a scuffle.
[6] PW5 (a raiding team member) corroborated PW4's testimony, confirming that the Appellant was carrying the knapsack.
[7] A body search of Mahathir revealed the grey knapsack containing a black plastic bag, a red and white plastic bag and a clear plastic bag containing crystalline substances suspected to be drugs. The drugs were later identified as 368.75 grams of Methamphetamine.
[8] PW1, a government chemist, confirmed through tests that the seized substances contained 368.75 grams of Methamphetamine.
[9] At the end of the prosecution case, the learned Judge made a finding that the Appellant had custody and control of the drugs based on direct evidence from PW4 and PW5. His attempt to flee and subsequent behaviour indicated guilty knowledge.
[10] The learned Judge then invoked the statutory presumption under s 37(da)(xvi) of the DDA which presumes trafficking based on the quantity of drugs unless proven otherwise.
[11] With regard to the evaluation of the defense of the Appellant, the learned Judge held that the Appellant has failed to rebut this presumption. The learned Judge also found the Appellant's defense implausible and unsupported by evidence.
[12] The learned Judge made a finding that the prosecution had proven its case beyond reasonable doubt. The learned Judge concluded that the Appellant had custody, control, and knowledge of the drugs based on the totality of evidence, including his actions, statements, and the physical evidence found in the knapsack. The learned Judge then found the Appellant guilty of trafficking under s 39B(1)(a) of the DDA and sentenced him to death.
Our Decision
[13] This appeal is limited to the issue of sentence. For an offence committed under s 39B(1)(a) of the DDA , the punishment for the offence is stipulated under s 39B (2), which reads:
"(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—
(a) traff
