MAT AZAM BIN NASIR v Pendakwa Raya

Case Significance

A Court of Appeal decision affirming a section 39B(1)(a) Dangerous Drugs Act 1952 trafficking conviction founded on common intention, and illustrating that sentencing for such offences now engages judicial discretion following the Abolition of Mandatory Death Penalty Act 2023.

This Court of Appeal decision concerns an appeal by the first accused against both his conviction and sentence for drug trafficking, heard together with a co-accused's appeal against conviction. The two accused had been jointly charged, in furtherance of a common intention under section 34 of the Penal Code, with trafficking in 153.3 grams of heroin, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952) punishable under section 39B(2). After a full trial, the High Court at Johor Bahru convicted both accused on the amended charge and, on 25 March 2025, sentenced each to imprisonment for the remainder of their natural life, fixed at 30 years from the date of arrest on 13 July 2018, together with 12 strokes of the cane. The first accused, dissatisfied with the whole of that decision, appealed against conviction and sentence, while the co-accused confined his appeal to conviction. On the conviction, the defence contended that a prosecution witness had acted as an agent provocateur under section 40A of the Dangerous Drugs Act 1952, that an adverse inference should be drawn under section 114(g) of the Evidence Act 1950 for the alleged suppression of material documentary evidence such as CCTV footage and telephone records, and that the arrangement was a negotiated sale in which the accused was an innocent carrier lacking the custody, control and knowledge required for trafficking. The Court held that the totality of the evidence supported the inference of a common intention and that the defence had failed to raise any reasonable doubt, and it unanimously affirmed the conviction as safe. On sentence, the Court noted that, following the coming into force of the Abolition of Mandatory Death Penalty Act 2023 on 4 July 2023, it was open to the court to consider a range of factors in the exercise of its sentencing discretion.