JUDGMENT

Azizah Nawawi JCA:

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) traffic in a dang