Pendakwa Raya v AMIRUL ASYRAF BIN ABDUL RAZAK

Case Significance

Illustrates the exercise of the sentencing discretion under the Abolition of Mandatory Death Penalty Act 2023 to impose a thirty-year custodial term and caning rather than death for drug trafficking by a young first offender.

This High Court decision at Alor Setar, Kedah concerns two charges of drug trafficking brought against the accused by the Pendakwa Raya (the Public Prosecutor) under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), punishable under section 39B(2). The first charge alleged trafficking 110.6 grams of heroin and the second alleged trafficking 42.3 grams of monoacetylmorphines, both at a house in Langkawi on the same occasion. Among the issues considered were the propriety of laying two separate charges for drugs that had been analysed together, the chemist's work process in the analysis, and the question of possession where the room in which the drugs were found was one that others could also access. At the close of the defence case the court was satisfied that the elements of both offences had been established and convicted the accused on both charges of trafficking. On sentence, the court had regard to the discretion introduced by the Abolition of Mandatory Death Penalty Act 2023 (Act 846), which confers on the court the same sentencing discretion for a trafficking offence under section 39B as for other capital offences. Taking into account that the weight of the drugs was not very large, that the accused was a first offender, and that he was only twenty-three years old at the time of arrest, the court held that this was not a case warranting the death penalty, emphasising the rehabilitative purpose of sentencing. It sentenced the accused to imprisonment for life, being thirty years, from the date of arrest, together with twelve strokes of the cane on each charge, ordering the terms of imprisonment to run concurrently. The judgment is a useful illustration of the exercise of the post-2023 sentencing discretion to impose a determinate custodial sentence rather than death for drug trafficking by a young first offender.