Pendakwa Raya v MOHD KHAIRUL NIZAM BIN MD RASHID

Case Significance

Illustrates the sentencing of a distinct possession charge under sections 12(2) and 39A(2) of the Dangerous Drugs Act 1952 tried alongside a trafficking charge, with a first offender receiving a substantial term of imprisonment and caning after the court exercised its post-reform discretion.

This High Court decision at Alor Setar concerns two drug charges tried together against a single accused, and this record relates to the possession charge on which he was convicted and sentenced to a term of years. The accused faced a charge of trafficking in heroin under section 39B(1)(a) of the Dangerous Drugs Act 1952 and, in this case, a charge of possessing 8.92 grams of monoacetylmorphines under section 12(2) read with section 39A(2) of the Act. The offences were said to have been committed in the early hours in a rented room in a shophouse at Changloon, Kubang Pasu, Kedah. Acting on information, a raiding officer forced open the locked door of the room and found the accused sitting on a mattress in a fearful state but not attempting to flee; a search in his presence recovered several packets and containers of drugs on the mattress on which he was sitting, which chemical analysis confirmed to contain heroin and monoacetylmorphines. The court considered whether the prosecution had proved its case beyond reasonable doubt and whether the defence had raised a reasonable doubt, and convicted the accused. In sentencing, the court noted that the case rested on a presumption of trafficking rather than direct evidence of trafficking, and that the accused was a first offender who deserved a second chance, and it accepted defence submissions that the death penalty should not be imposed, the prosecution not having pressed for it. For the possession charge in this case, the court sentenced the accused to 8 years' imprisonment from the date of arrest and 10 strokes of the cane ("8 tahun penjara dari tarikh tangkap dan 10 sebatan"), having imposed a separate sentence on the trafficking charge tried with it. The court recorded that the possession sentence in this case reflected the same weighing of the accused's first-offender mitigation against the public interest in drug offences that informed the separate sentence imposed on the trafficking charge tried together with it.