MOHD MUSNIZAM BIN MUSA v Pendakwa Raya
Outcome
Maka, rayuan Perayu atas hukuman juga dengan ini adalah ditolak. KESIMPULAN [41] Oleh itu, kami sebulat suara membenarkan rayuan Perayu dalam Rayuan No. 650. Keputusan YA.
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Counsel (4)
Case Significance
Shows the same appellate panel reaching opposite results on parallel drug charges — allowing one appeal to a discharge and acquittal while dismissing the other as attracting only the minimum sentence — with the prosecution's failure to produce a co-arrested witness bearing on the analysis.
This decision of the Court of Appeal disposes of two criminal appeals, heard together, brought by the same appellant against convictions and sentences imposed by the High Court in Johor Bahru on a series of dangerous-drug charges. In the first appeal (Rayuan No. 650), the appellant had been convicted of trafficking 175.68 grams of methamphetamine under section 39B(1)(a) of the Dangerous Drugs Act 1952 and of two possession charges under section 12(2) — for 5.12 grams of heroin and 7.69 grams of monoacetylmorphine — and had been sentenced to life imprisonment with whipping on the trafficking charge together with custodial terms on the others. In the second appeal (Rayuan No. 9), he had been convicted of trafficking 151.68 grams of methamphetamine and of a further possession charge. The appeals were argued on the footing that the trial court had misappreciated the evidence and had wrongly relied on the statutory presumption of trafficking to convict. A central issue was the statutory presumption under section 37(da)(xvi) of the Act and the prosecution's failure to call or offer to the defence a companion of the accused who had been arrested with him at the scene, said to attract an adverse inference under section 114(g) of the Evidence Act 1950. The Court of Appeal drew a distinction between the two appeals. On Rayuan No. 650 it allowed the appeal unanimously, set aside the High Court's findings on all three charges, and ordered that Perayu adalah dilepaskan dan dibebaskan (the appellant is discharged and acquitted) of those charges. On Rayuan No. 9, by contrast, it dismissed the appeal, affirming both conviction and sentence and observing that the sentences imposed were the minimum provided by law for the offences charged, so that there was no basis to interfere. The judgment illustrates how the same appellate panel can reach opposite outcomes on parallel charges, depending on the strength of the evidence and the impact of an unexplained failure to produce a material witness.
Summary
The appellant faced two sets of drug trafficking and possession appeals heard together involving methamphetamine, heroin and monoacetylmorphine found at two separate locations. The key issues included adverse inference under s.114(g) for failing to call a co-suspect, the absence of the appellant's DNA on the drugs, and the sufficiency of pointing-out evidence. The Court of Appeal allowed the appeal for one set of charges (Rayuan 650) due to prosecution failings but dismissed the other (Rayuan 9), affirming life imprisonment.
What were the outcomes of the two appeals?
The Court of Appeal allowed the first appeal (Rayuan No. 650), setting aside the convictions on all three charges and ordering that the appellant be discharged and acquitted. It dismissed the second appeal (Rayuan No. 9), affirming the conviction and sentence.
What role did the missing witness play?
The prosecution had not called or offered to the defence a companion arrested with the accused at the scene, which was said to attract an adverse inference under section 114(g) of the Evidence Act 1950 — a factor bearing on the strength of the case against the appellant.
Cases Cited (15)
Judgment
Read the full judgment on the official Malaysia Courts portal.
Read on eJudgmentSource: eJudgment (j-05sh-650-12-2023)