Pendakwa Raya v 1. ) SYED URFAN AL-KHAIDIR BIN SYED ZAINAL ABIDIN 2. ) KHATIJAH BINTI IBRAHIM 3. ) MUHAMMAD AIZAT BIN ABD.KARIM

Case Significance

Shows how a joint trafficking charge under section 39B can resolve differently among co-accused, discharge for want of a prima facie case for two and conviction for the third, and illustrates the discretionary death-or-life sentencing regime now governing the offence.

This High Court trial at Temerloh arose from a charge of trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952, read with section 34 of the Penal Code ("Kanun Keseksaan"), the drugs being heroin and monoacetylmorphines of a net weight of 72.10 grams. Three accused were jointly charged. The prosecution case rested on a raid on a Proton Wira car in Temerloh in which, on the raiding officer's account, a man arrived by motorcycle and entered the vehicle before the arrests. At the close of the prosecution case the court found that the prosecution had failed to establish a prima facie case ("kes prima facie") against the first and second accused and ordered them discharged, while calling on the third accused to enter a defence. Having heard the defence, the court convicted the third accused of the trafficking charge. On sentence the court noted that the death penalty for a section 39B offence is "bukan lagi sesuatu yang mandatori" (no longer mandatory), so that where it declines to impose death it may instead order life imprisonment and not fewer than 12 strokes of the rotan. Weighing the evidence, the manner in which the offence was committed and the public interest, the court held that the death penalty was not appropriate and sentenced the third accused to "penjara seumur hidup dari tarikh tangkap" (life imprisonment from the date of arrest) together with 12 strokes of the rotan. The finding that no prima facie case had been made out against two of the accused turned on the sufficiency of the evidence connecting them to the drugs found in the car, while the case against the third accused was found to meet the threshold and, after the defence was heard, to withstand it. The judgment is a useful illustration of how a joint trafficking charge can resolve differently among co-accused, a discharge for want of a prima facie case for two and a conviction for the third, and of the discretionary sentencing regime that now governs section 39B.