MUHAMMAD AISMAT AMIR BIN ZAINAL v Pendakwa Raya

Case Significance

Illustrates an appellate court, unpersuaded that trafficking was safely established, substituting the lesser possession-based offence under section 6 (punishable under section 39A(2)) of the Dangerous Drugs Act 1952 and passing a proportionate nine-year sentence, applying the same outcome to co-accused tried together.

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 second appellant across the charges he faced, decided in the same judgment as those of his co-accused.

Having regard to the public interest, the gravity of the offences and the trend of sentencing, the Court of Appeal assessed the safety of the trafficking conviction and the proportionality of the sentence, and it reached a result that differed charge by charge. It dismissed the appeals against the second and third charges, so that those convictions remained, but on the first charge it allowed the appeal, setting aside the conviction for trafficking under section 39B(1)(a) and the accompanying sentence of life imprisonment and twelve strokes imposed by the High Court.

In substitution, the court convicted the appellants 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 sentenced each to nine years' imprisonment with effect from the date of arrest and ten strokes of the cane. The judgment illustrates how an appellate court, unpersuaded that the trafficking element was safely established, substitutes the lesser possession-based offence and passes a proportionate sentence, applying the same outcome to co-accused tried and convicted together while leaving their other convictions intact.