MUHAMMAD FAIZ BIN MOHD ISA v Pendakwa Raya

Case Significance

Confirms that a trafficking conviction under section 39B(1)(a) of the Dangerous Drugs Act 1952 will be reduced to the lesser possession-based offence under section 6 (punishable under section 39A(2)) where the evidence supports possession but not trafficking, with the appellate court resentencing 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. This appeal is one of the connected appeals brought by the first appellant across the charges he faced.

Considering the public interest, the seriousness of the offences and the prevailing sentencing trend, the Court of Appeal examined whether the trafficking conviction was safe and whether the sentence was appropriate, and it arrived at a differentiated outcome. It dismissed the appeals in respect of the second and third charges, so that those convictions stood, but it allowed the appeal on the first charge, setting aside the conviction for trafficking under section 39B(1)(a) together with the sentence of life imprisonment and twelve strokes imposed by the High Court.

Substituting a lesser offence for the trafficking charge, the court 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, and imposed on each a sentence of nine years' imprisonment from the date of arrest together with ten strokes of the cane. The decision illustrates that a trafficking conviction will be reduced to the lesser possession-based offence where the evidence supports possession but not the additional element of trafficking, with the appellate court resentencing to reflect the substituted charge while leaving the remaining convictions undisturbed.