MUHAMMAD FAIZ BIN MOHD ISA v Pendakwa Raya

Case Significance

Illustrates the Court of Appeal substituting a lesser possession-based conviction under section 6 (punishable under section 39A(2)) for a trafficking conviction under section 39B(1)(a) of the Dangerous Drugs Act 1952 where the evidence did not safely sustain trafficking, recalibrating the sentence to nine years and ten strokes.

This Court of Appeal decision is one of a group of consolidated Court of Appeal criminal appeals decided together, arising from the trial of two accused at the High Court at Klang on linked drug and poison charges. The charges were, first, trafficking in a dangerous drug under section 39B(1)(a) of the Dangerous Drugs Act 1952, punishable under section 39B(2) and read with section 34 of the Penal Code; secondly, an offence under section 12(2) of the Dangerous Drugs Act 1952, punishable under section 12(3) and read with section 34; and thirdly, an offence under section 30(3) of the Poisons Act, punishable under section 30(5) and read with section 34. The High Court had convicted on the trafficking charge and imposed life imprisonment from the date of arrest (7 October 2020) and twelve strokes of the cane.

Weighing the public interest, the seriousness of the offence and the trend of sentencing, the court reviewed the safety of the trafficking conviction and the appropriateness of the sentence. It reached a split result across the three charges. It dismissed the appellants' appeals in respect of the second and third charges, leaving those convictions undisturbed. On the first charge, however, it allowed the appeal: it set aside the conviction for trafficking under section 39B(1)(a) and the sentence of life imprisonment and twelve strokes that the High Court had imposed.

In place of the trafficking conviction, the Court of Appeal found the appellants guilty on an amended first charge under section 6 of the Dangerous Drugs Act 1952, punishable under section 39A(2) read with section 34 of the Penal Code — the lesser possession-based offence — and sentenced each appellant to nine years' imprisonment with effect from the date of arrest, together with ten strokes of the cane. The judgment illustrates the appellate court's willingness to substitute a conviction for the lesser possession offence where the evidence does not safely sustain a trafficking conviction, and to recalibrate the sentence accordingly while leaving the other convictions in place.