1. ) Mohd Nazri Bin Wahab 2. ) Wan Hamdan Bin Wan Hashim v Pendakwa Raya

Case Significance

Illustrates the appellate treatment of direct evidence of sale, admissible agent-provocateur testimony under section 40A, and the section 34 common-intention route in a joint drug-trafficking conviction upheld on appeal.

This Court of Appeal decision at Putrajaya concerns a joint drug-trafficking prosecution that ran through the High Court at Johor Bahru. The two appellants were charged that, acting together on 24 October 2018 at a food court in the Mersing district of Johor, they trafficked 54.52 grams of Monoacetylmorphines, an offence under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), punishable under section 39B(2) and read with seksyen 34 Kanun Keseksaan (section 34 of the Penal Code, common intention). At the close of the prosecution's case the trial judge found a prima facie case and called both accused to enter their defence; eight prosecution witnesses and, for the defence, the two accused and four others had testified. Both were convicted: the first appellant was sentenced to life imprisonment (30 years) from the date of arrest plus 12 strokes of the cane, and the second appellant to life imprisonment (30 years) from arrest, with whipping excused. On appeal the principal grounds were whether the prosecution had established custody, control and knowledge of the drugs, the operation of common intention, the admissibility of agent-provocateur evidence under section 40A of the Act, the trafficking presumption under section 37(da), and alleged material contradictions in the evidence. The Court of Appeal held that the trial court had made no appealable error: the trafficking rested on direct evidence of sale rather than only on the statutory presumption, and the police witnesses had no reason to fabricate. The panel unanimously ditolak (dismissed) the appellants' appeals and affirmed the convictions, ordering keputusan ... terhadap sabitan dikekalkan (the decision on conviction is maintained). The judgment is a useful illustration of how the appellate court treats direct evidence of sale, agent-provocateur testimony and the section 34 common-intention route in a joint trafficking case, and of the appellate reluctance to disturb concurrent findings of custody, control and knowledge where the trial court's evaluation discloses no appealable error. It also shows that whipping may be excused for one co-accused while imposed on the other on the same charge, and that a unanimous panel will affirm a conviction resting on both direct evidence and the statutory framework.