Salim Sabeer v Pendakwa Raya

Case Significance

Illustrates an appellate court affirming a section 39B trafficking conviction as safe while exercising the re-sentencing discretion following abolition of the mandatory death penalty, substituting a 30-year term and whipping for the death sentence.

This Court of Appeal decision is one of five appeals heard together arising from a joint trial at the Seremban High Court, in which the appellants had been convicted of drug trafficking under section 39B(1)(c) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952) and of an offence under section 9(1) of the Poisons Act 1952. This appeal concerns the first-named appellant, who challenged both conviction and sentence. The central conviction issues were whether the elements of possession and knowledge had been made out and whether the acts proved amounted to trafficking rather than to some lesser, merely preparatory, involvement.

On the conviction, the Court of Appeal examined the possession-and-knowledge analysis and the trafficking element in detail. It considered the appellant's argument that any preparatory acts fell short of trafficking, together with subsidiary points on the drawing of an adverse inference under section 114(g) of the Evidence Act 1950 and the effect of the prosecution's conduct of the case. On the section 114(g) point the court reaffirmed the settled principle that the adverse-inference presumption is engaged only where there has been a withholding or suppression of evidence, and not merely because the prosecution failed to obtain a particular piece of evidence. Satisfied that the trial judge had properly directed himself and that the defence had been evaluated in its entirety, the court held that the conviction was safe and dismissed the appeal against conviction.

The appeal against sentence, however, succeeded. Exercising the sentencing discretion now available following the abolition of the mandatory death penalty for such offences, the court found merit in the sentence appeal, set aside the death sentence, and substituted a term of 30 years' imprisonment from the date of arrest (3 August 2018) together with 12 strokes of whipping on each of the two charges, the sentences to run concurrently. The judgment is a useful illustration of an appellate court affirming a trafficking conviction as safe while re-sentencing under the reformed penalty regime.