Pendakwa Raya v 1. ) GANESAN A/L S PARTHIBAN 2. ) TAMILMAARAN A/L JEEVANESA

Case Significance

Illustrates how, after Act 846 removed the mandatory death penalty for section 39B(1)(a) of the Dangerous Drugs Act 1952, a trafficking conviction on exclusive-possession evidence can result in life imprisonment and caning, with the court weighing rehabilitation in exercising its new sentencing discretion.

This High Court decision at Klang concerns a joint charge of drug trafficking brought by the prosecution (Pendakwa Raya, the Public Prosecutor) against two accused under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), punishable under section 39B(2) and read with section 34 of the Penal Code. The charge alleged that, on the night of 10 January 2023 at Bandar Bukit Tinggi 1, Klang, the two accused together trafficked 684.6 grams of methamphetamine. Acting on intelligence about drug sales in the area, a raiding party observed a grey Proton Waja parked suspiciously; on approaching, officers found two men inside who tried to flee, and a canvas bag resting unconcealed at the handbrake was found to contain the drugs. The prosecution called five witnesses to establish a prima facie case. The court was satisfied that the drugs were dangerous drugs within the First Schedule, that the accused had exclusive possession of and knowledge of the drugs found in the car they alone occupied, and that a prima facie case of trafficking had been made out; the accused were called to enter their defence. Their defence raised alleged inconsistencies in the location, which the court weighed together with the adverse-inference provision in section 114(g) of the Evidence Act 1950. On sentence, the court noted that Act 846 had removed the mandatory death penalty for section 39B, leaving the court a discretion, and, emphasising rehabilitation and the chance to return to society, it declined to impose death. It observed that Parliament's intention in enacting Act 846 was to allow offenders a route back into society after serving their sentence, and that even where much of an offender's life might be spent in prison this did not preclude a second chance. Weighing the mitigation against the prosecution's plea in aggravation, it imposed a sentence of imprisonment for life ("penjara seumur hidup") and 12 strokes of the cane ("12 kali sebatan") on each accused, and ordered the exhibits kept safely pending the appeal period.