AZRUL NIZAM BIN KAMARUDDIN v Pendakwa Raya

Case Significance

Reinforces that a trafficking conviction under section 39B(1)(a) of the Dangerous Drugs Act 1952 will be reduced to possession under section 39A(2) on appeal where it is unsafe to convict of trafficking and the trial judge misapplied the possession and trafficking-presumption provisions.

This Court of Appeal decision concerns an appeal against a conviction and sentence for drug trafficking, heard together with a co-accused's appeal, and results in the trafficking conviction being reduced to one of possession. The two appellants had been jointly charged under section 39B(1)(a) of the Dangerous Drugs Act 1952, read with section 34 of the Penal Code, with trafficking 78.83 grams of methamphetamine found at business premises in Telok Gong, Klang. They claimed trial; the prosecution called eight witnesses. At the close of the prosecution case the High Court found a prima facie case and called them to enter their defence, and both gave sworn evidence from the witness box. At the close of the defence the High Court convicted them and imposed imprisonment for life (30 years) from the date of arrest and 12 strokes of the cane. On appeal, the Court of Appeal reviewed the evidence of custody, control and knowledge, the statutory presumptions of possession under section 37(d) and trafficking under section 37(da), and the direct evidence relied on. It examined the evidence that a bag containing the drugs was found in a back room that had been kept under observation, that no one else was seen entering or leaving, and that the defence had failed to establish that anyone else had placed the bag there or that the drugs belonged to another; it also noted that the defence's suggestions had not been put to the raiding officers in cross-examination. The court concluded that, on the totality of the evidence, it was not safe to convict the appellants of trafficking, and that this was a proper case to reduce the charge from trafficking to possession because of a misapplication of the relevant legal provisions by the trial judge. It unanimously allowed both appeals, set aside the conviction under section 39B(1)(a) and substituted a conviction for possession under section 12(2) punishable under section 39A(2), and set aside the sentence of life imprisonment and 12 strokes, substituting a sentence of 9 years' imprisonment from the date of arrest and 10 strokes of the cane.