Pendakwa Raya v 1. ) MAZIZ AFIQ BIN AWANG 2. ) Mahama Boraheng 3. ) WAN MOHAMAD KHAROY BIN AWANG

Case Significance

Illustrates differentiated treatment of co-accused in a joint trafficking charge, where only the accused directly connected to the drugs found in the vehicle was convicted, sentenced within the post-mandatory-death-penalty framework.

This High Court decision at Temerloh, Pahang concerns three accused jointly charged by the Pendakwa Raya (the Public Prosecutor) with drug trafficking, and illustrates how liability may differ between co-accused on the evidence. All three were charged, with common intention, under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) read with seksyen 34 Kanun Keseksaan (section 34 of the Penal Code), with trafficking 3,381 grams of methamphetamine. The drugs were found in a vehicle stopped by police at a roadblock on Jalan Lipis at Merapoh, where the first accused was the driver, while the second and third accused were separately arrested in Selangor. The court examined the evidence connecting each accused to the drugs. On the evidence, the case against the second and third accused was not made out, and they were discharged and acquitted. As against the first accused, however, the court was satisfied that the elements of the offence and his possession, custody and knowledge of the drugs found in the vehicle he was driving had been established, and it convicted him of trafficking. On sentence, the court imposed a term of thirty years' imprisonment from the date of arrest together with twelve strokes of the cane, a sentencing outcome consistent with the framework applied following the coming into force of the Abolition of Mandatory Death Penalty Act 2023, under which a court exercises a sentencing discretion in place of the former mandatory death penalty. The decision underscores that in a joint charge the prosecution must establish each accused's own possession, custody and knowledge of the drugs, so that co-accused arrested away from the scene may be acquitted while the accused found with the drugs is convicted. The judgment is a useful illustration of the differentiated treatment of co-accused in a joint trafficking charge and of sentencing for trafficking in the post-mandatory-death-penalty framework.