Pendakwa Raya v MOHD KHAIRUL NIZAM BIN MD RASHID

Case Significance

Illustrates the exercise of sentencing discretion for a section 39B(1)(a) trafficking conviction after the Abolition of Mandatory Death Penalty Act 2023: a first offender convicted on a presumption of trafficking may receive life imprisonment and caning rather than death, especially where the prosecution does not press for the death penalty.

This High Court decision at Alor Setar concerns two drug charges tried together against a single accused, and this record relates to the trafficking charge, on which he was convicted and sentenced to imprisonment for life. The accused was charged with trafficking 17.46 grams of heroin under section 39B(1)(a) of the Dangerous Drugs Act 1952 and, in a companion case, with possessing monoacetylmorphines under section 12(2) read with section 39A(2). The offences were said to have occurred in the early hours in a rented room in a shophouse at Changloon, Kubang Pasu, Kedah. Acting on information about drug activity, a raiding officer kept observation before forcing open the locked door of the room and finding the accused sitting on a mattress, fearful but not attempting to flee; a search recovered several packets and containers of drugs on the mattress, which chemical analysis confirmed to contain heroin and monoacetylmorphines. The court, examining whether the prosecution had proved the charge beyond reasonable doubt and whether the defence had raised a reasonable doubt, convicted the accused of trafficking. In sentencing, the court noted that under the Abolition of Mandatory Death Penalty Act 2023 the punishment for a section 39B(1)(a) offence had been amended to death or imprisonment for life with not fewer than 12 strokes of the cane if death is not imposed, giving the court a full discretion. Observing that the accused was a first offender who deserved a second chance, that the case rested on a presumption of trafficking rather than direct evidence, and that the prosecution had not pressed for the death penalty, the court declined to impose death. For the trafficking charge it sentenced the accused to imprisonment for life from the date of arrest and 12 strokes of the cane ("penjara seumur hidup dari tarikh tangkap dan 12 sebatan").