Pendakwa Raya v MOHD ZARIEF ASHRAFF BIN AZIMI

Case Significance

Illustrates how a defendant's flight when confronted with the drugs can be relied on as incriminating conduct under section 8 of the Evidence Act 1950, and the exercise of the sentencing discretion under section 39B of the Dangerous Drugs Act 1952 following the abolition of the mandatory death penalty.

This High Court decision at Shah Alam concerns a charge of drug trafficking under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952, Act 234) in respect of heroin and monoacetylmorphine weighing 33.3 grams (27.9 grams of heroin and 5.40 grams of monoacetylmorphine), found in the dashboard of a car that the accused had rented. The accused claimed trial. The issues were whether the accused had custody, control and possession of the car and knowledge of the drugs concealed in it, and whether his conduct in fleeing when the drugs were shown to him was admissible against him as relevant conduct under seksyen 8 Akta Keterangan 1950 (section 8 of the Evidence Act 1950). Having subjected the prosecution's evidence to maximum evaluation at the close of the prosecution case, the court held that a prima facie case had been established and called on the accused to enter his defence. At the end of the defence case, the court found that the defence had not raised any reasonable doubt and convicted the accused. On sentence, the court noted that following the amendment of the law the death penalty is no longer mandatory for an offence under section 39B, so that the court had a discretion to impose the alternative sentence. After hearing mitigation and weighing the aggravating factors and the current sentencing trend, the court exercised that discretion and sentenced the accused to imprisonment for life, being thirty years, from the date of arrest, together with twelve strokes of whipping. The judgment is a useful illustration of how a defendant's flight can be relied on as incriminating conduct, and of the exercise of the sentencing discretion under section 39B following the abolition of the mandatory death penalty. The court's reasoning shows the sequential structure of a trafficking trial preserved intact: proof of possession and knowledge at the prima facie stage, an opportunity for the accused to answer, and a conviction only where the defence fails to raise a reasonable doubt. On sentence, the reasoning illustrates the calibrated exercise of discretion the courts now undertake since the alternative to the death penalty became available, weighing mitigation against the gravity of the offence and the prevailing sentencing trend.