Pendakwa Raya v 1. ) AB MALEK BIN HAMID 2. ) MR HARMAN AWAEKUECHEH (Thailand)

Case Significance

A detailed illustration of a two-accused joint drug-trafficking trial under section 39B of the Dangerous Drugs Act 1952 read with section 34 of the Penal Code, showing the trafficking presumption in operation and individualised sentencing including the statutory age exemption from whipping.

This decision of the High Court (Criminal Division) at Shah Alam records the trial of two accused persons jointly charged, on amended charges, with trafficking in dangerous drugs under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), read with section 34 of the Penal Code. The first amended charge concerned heroin weighing 14,520.6 grams and the second concerned monoacetylmorphine weighing 361.5 grams, both said to have been trafficked together at a roadside near a bazar in the Hulu Langat district of Selangor. The prosecution called four witnesses — a photographer, a chemist, the raiding officer and the investigating officer — and consent to prosecute under section 39B(3) had been obtained.

At the close of the prosecution case the court found that a prima facie case had been made out against both accused and called on each to enter his defence, applying the statutory presumption. After hearing the defence, the court held that neither accused had raised a reasonable doubt (keraguan yang munasabah) on the prosecution case and convicted both on both amended charges. In sentencing, the court distinguished between the two: the first accused was sentenced to 30 years' imprisonment from the date of arrest on both amended charges, to run concurrently, and was exempted from whipping by reason of his age exceeding 50 years as provided under the Act; the second accused was sentenced to 30 years' imprisonment from the date of arrest together with 12 strokes of the rotan, with the terms of imprisonment to run concurrently but the strokes for the two charges to be administered separately. In arriving at sentence the court weighed the aggravating and mitigating factors urged by the parties and took into account the mitigation advanced by the accused themselves. The judgment is a detailed worked example of a two-accused joint-trafficking trial, the operation of the trafficking presumption, and the individualised calibration of sentence — including the statutory age exemption from whipping and the separate treatment of concurrent imprisonment and separately administered strokes.