MOHAMMAD ALEYAS BIN SAIAN v Pendakwa Raya

Case Significance

Shows an appellate court reducing a section 39B trafficking conviction to simple possession under section 12(2) of the Dangerous Drugs Act 1952 where shared access and misapplied presumptions made a trafficking finding unsafe.

This Court of Appeal decision at Putrajaya concerns two appellants convicted together of drug trafficking, whose appeals were heard as related matters. They had been charged with jointly trafficking 78.83 grams of methamphetamine under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), read with seksyen 34 Kanun Keseksaan (section 34 of the Penal Code). At the close of the prosecution case the High Court had found a prima facie case and called both accused to enter their defence; each gave sworn evidence. The High Court convicted both under section 39B(1)(a) and imposed life imprisonment (30 years) and 12 strokes of the cane. On appeal the court examined the evidence going to possession, custody and knowledge of the drugs, which had been found in a blue cupboard in a room to which others had access, and considered the operation of the presumptions under sections 37(d) and 37(da) of the Act and the definition of direct trafficking. The court concluded that it was not safe to convict the appellants of trafficking, and that the case was an appropriate one to reduce the charge from trafficking to mere possession, on the basis that the trial judge had misapplied the relevant statutory provisions. The court unanimously allowed the appeals, set aside the convictions under section 39B(1)(a) and substituted convictions for possession under seksyen 12(2) Akta Dadah Berbahaya 1952 (section 12(2) of the Dangerous Drugs Act 1952), punishable under section 39A(2). It set aside the sentences of life imprisonment and caning and substituted imprisonment for nine years from the date of arrest on 2 March 2022, together with ten strokes of the cane. The judgment illustrates how an appellate court may reduce a trafficking conviction to simple possession where the evidence does not safely establish trafficking. The reduction reflects the principle that a trafficking conviction cannot stand where the admissible evidence, once the presumptions are properly applied, establishes no more than possession of the drug.