Wan Mohd Efizan Bin W. Mohd Shamli v Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Case Significance

Illustrates how the appellate court assesses alleged contradictions between prosecution witnesses in a drug prosecution: not every inconsistency is material, and a conviction under the Dangerous Drugs Act 1952 will stand where the discrepancies do not go to the core of the finding of possession and trafficking.

This Court of Appeal decision at Putrajaya is one of two linked criminal appeals by the same appellant, tried separately in the High Court at Shah Alam, and heard together on appeal. The appellant faced charges of trafficking in a dangerous drug under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), punishable under section 39B(2), and of possession under section 12(2) punishable under section 39A(1), read with seksyen 34 Kanun Keseksaan (section 34 of the Penal Code), with the prosecution relying on the trafficking presumption under section 37(da). This appeal arose from the first of the two High Court trials. The central complaint pressed was whether there was a material contradiction between the evidence of two prosecution witnesses, referred to as SP7 and SP8, as to the finding of the drugs, together with arguments touching the procedure under section 154 of the Evidence Act 1950 for cross-examining a witness and the operation of section 27 of the Evidence Act 1950 concerning information leading to discovery. The Court of Appeal examined the alleged discrepancies and found them not to be of a character that undermined the safety of the conviction. It held the trial judge's findings sound, dismissed the appeal, and affirmed the conviction and the sentence imposed by the High Court, directing that the accused be detained at Kajang Prison until he had completed the sentence of whipping. Delivered on behalf of a panel comprising Azman bin Abdullah, Azmi bin Ariffin and Noorin binti Badaruddin JJCA, the judgment is a useful illustration of how the appellate court assesses alleged contradictions between prosecution witnesses in a drug case: not every inconsistency is material, and a conviction will stand where the discrepancies do not go to the core of the finding of possession and trafficking. The decision also confirms that the presumption of trafficking under section 37(da) continues to operate where possession is established, and that complaints about the handling of witnesses under section 154 or the reception of discovery evidence under section 27 of the Evidence Act 1950 will not avail an appellant unless they disclose a real error affecting the safety of the verdict.