1. ) MOHAMAD SHABUDIN BIN YUSOFF 2. ) AMIRUL ASRI BIN SHAARI v Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Case Significance

Illustrates that the absence of forensic evidence does not by itself defeat a drug-trafficking prosecution, the legitimate role of an agent provocateur, and the operation of the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952 once possession of the requisite quantity is proved.

This Court of Appeal decision at Putrajaya concerns an appeal by two accused against their convictions for trafficking in dangerous drugs. They had been found guilty in the High Court at Shah Alam of trafficking in 27,846.8 grams of cannabis under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dibaca bersama seksyen 34 Kanun Keseksaan (section 39B(1)(a) of the Dangerous Drugs Act 1952 read with section 34 of the Penal Code, for common intention), and each had been sentenced to life imprisonment from the date of arrest together with strokes of the cane. The appeal raised the use of an agent provocateur in the operation, the effect of the absence of forensic evidence, and the application of the statutory presumption of trafficking.

The Court addressed each ground. On the forensic point, it held that the absence of evidence such as CCTV recordings, fingerprints or DNA did not, of itself, undermine the prosecution case, where the other evidence established the elements of the offence. On the agent provocateur, the involvement of such an agent did not vitiate the prosecution, the law recognising the legitimate use of agents in drug operations. The Court also considered the invocation of the presumption of trafficking under seksyen 37(da) Akta Dadah Berbahaya 1952 (section 37(da) of the Dangerous Drugs Act 1952), which follows once possession of the requisite quantity is established. It was satisfied that the trial judge had correctly assessed the whole of the evidence, had given the defence its proper consideration, and had established the case against the accused as charged.

The Court of Appeal unanimously dismissed the appeals of both accused and affirmed the convictions and sentences imposed by the High Court. The judgment is a useful illustration of the principle that the absence of forensic evidence does not by itself defeat a drug-trafficking prosecution, of the legitimate role of an agent provocateur, and of the operation of the statutory presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952 once possession of the requisite quantity is proved.