Pendakwa Raya v 1. ) Latif Ma 2. ) Kelvin Yap Chee Hoong (A&d) 3. ) Varatharajah A/l Veeran (A&d)

Case Significance

Illustrates the differentiated outcomes for co-accused in a joint trafficking charge and the exercise of the sentencing discretion under the Abolition of Mandatory Death Penalty Act 2023 to impose life imprisonment rather than death.

This High Court decision at Shah Alam concerns a drug-trafficking prosecution of three accused, of whom two were acquitted at the close of the prosecution case and the third convicted after his defence, together with the exercise of the sentencing discretion between death and life imprisonment. All three were charged 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, for trafficking in 9,029.6 grams of methamphetamine at a roadside in Bandar Sunway, Subang Jaya. The prosecution called nine witnesses, and its case centred on the custody and control of a bag containing the drugs and the statutory presumptions of possession and knowledge under section 37(d), together with the definition of trafficking in section 2 of the Act. At the close of the prosecution case the second and third accused were discharged and acquitted, and no appeal was filed against that decision, leaving the first accused to answer the charge. The questions at the defence stage were whether the element of trafficking was made out and whether the first accused had raised any reasonable doubt or rebutted the presumptions against him. The court found that the first accused had failed to rebut the statutory presumptions and had not raised a reasonable doubt, and it convicted him. On sentence, engaging the discretion available under the Abolition of Mandatory Death Penalty Act 2023, the court took into account mitigating circumstances, including that the first accused had a young child, and declined to impose the death sentence, choosing instead the alternative of imprisonment for life reckoned from the date of arrest; because he had reached the age of fifty at sentencing, no whipping was imposed, consistent with section 289(c) of the Criminal Procedure Code. The judgment is a useful illustration of the differentiated outcomes for co-accused in a joint trafficking charge and of the exercise of the sentencing discretion to impose life imprisonment rather than death.