Pendakwa Raya v 1. ) IBRAHIM BIN HARUN 2. ) MUHAMMAD AFIFI BIN IBRAHIM

Case Significance

Illustrates the exercise of sentencing discretion in a section 39B(1)(a) trafficking conviction after abolition of the mandatory death penalty, and the operation of section 289 of the Criminal Procedure Code exempting an accused the court considers to be over 50 from whipping.

This High Court decision at Temerloh concerns a joint trafficking prosecution against two accused 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 (common intention). The charge alleged that, on 21 March 2021 at the rear of a Petronas petrol station on the Bentong–Karak road, the two accused in furtherance of a common intention trafficked in methamphetamine weighing 6,099.9 grams. The prosecution called ten witnesses, including the chemist, the raiding officer, the investigating officer, the storekeeper and the photographer. The raiding officer's evidence was that, acting on information, a team kept observation and stopped a Proton Waja from which the accused removed a blue bag; on being approached one accused threw the bag down and tried to flee, and the bag was found to contain ten packages, one of which the officer opened and found to hold crystalline substance later confirmed by chemical analysis as methamphetamine.

Having examined the evidence, the court was satisfied that the prosecution had proved its case and convicted both accused. On sentence, the court considered the manner in which the offence was committed and the degree of each accused's involvement. It concluded that life imprisonment, rather than the death penalty, was the appropriate measure, the death penalty being unsuitable in this case. In fixing the whipping element the court had regard to section 289 of the Criminal Procedure Code, under which a male the court considers to be over 50 years of age is not to be sentenced to whipping; the first accused fell within that category.

The court sentenced both accused to 30 years' imprisonment from the date of arrest on 21 March 2021, and additionally ordered the second accused to receive 12 strokes of the cane. The judgment illustrates the exercise of sentencing discretion in trafficking cases following the abolition of the mandatory death penalty.