Fazil Farook v Pendakwa Raya

n-05m-112-03-2023 Court of Appeal (Mahkamah Rayuan) 19 March 2025 • N-05(M)-112-03/2023 • 37 min read

6 cases cited (0 SG, 6 foreign)

Catchwords

Appeal against conviction and sentence – Section 39B(1)(c) of the Dangerous Drugs Act 1952 – Section 9(1) of the Poison Act 1952 – Whether the elements of possession and knowledge was proven – Whether preparatory acts amount to trafficking - Whether the presumption of adverse inference under section 114(g) of the Evidence Act 1950 can only be drawn if there has been withholding or suppression of evidence and not merely on account of failure to obtain evidence - Whether failure to cross-examine the accused persons was fatal to the prosecution’s case - Whether High Court Judge had considered and evaluated the defence in its entirety

Practice Areas

Criminal Procedure Criminal Law Evidence

Judges (3)

Ahmad Zaidi bin Ibrahim Coram Azman bin Abdullah Coram Noorin binti Badaruddin Delivered

Counsel (3)

Sharonpal Singh & Associates Firm Noorhisham Bin Mohd Jaafar Counsel Respondent Sharonpal Singh Counsel Appellant

Parties (2)

Pendakwa Raya Respondent Fazil Farook Appellant

Case Significance

A further instance of the Court of Appeal replacing a death sentence with imprisonment and whipping in a section 39B(1)(c) trafficking appeal, applying the settled limits on the section 114(g) adverse-inference presumption.

This Court of Appeal decision belongs to a cluster of criminal appeals resolved in one common judgment, each arising from the same High Court trial at Seremban dealing with trafficking in dangerous drugs. The appellant on this appeal had been convicted under section 39B(1)(c) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), together with a charge under section 9(1) of the Poisons Act 1952, and sentenced to death. Since the appellant is a natural person named only as a party, this analysis refers to that party by role.

In its reasons the Court worked through the familiar battleground of a trafficking prosecution. It examined whether possession and knowledge — the twin ingredients that anchor a trafficking conviction — had been established, and whether the conduct relied on as preparatory acts could, as a matter of law, amount to trafficking. It gave attention to the presumption of adverse inference under section 114(g) of the Evidence Act 1950, emphasising that it operates only where evidence has been withheld or suppressed and not merely where the prosecution failed to procure evidence. The Court further considered whether the failure to cross-examine the accused was fatal to the prosecution's case and whether the trial judge had assessed the defence as a whole.

On the question of punishment, the Court concluded that there was merit in the appeal against the death sentence for the trafficking offences. It allowed the appeal against sentence, set aside the death penalty, and substituted a lengthy term of imprisonment coupled with strokes of whipping, the relevant sentences to run concurrently and to take effect from the date of arrest. The judgment is a useful example of appellate sentencing discretion in capital drug cases following the reforms that opened such sentences to reconsideration, and of the careful confinement of the section 114(g) presumption to cases of genuine suppression of evidence.

Summary

Fazil Farook's appeal, one of five Indian nationals convicted of joint drug trafficking in Port Dickson. The Court of Appeal upheld the conviction but substituted the death sentence with 30 years' imprisonment and 12 strokes of whipping.

What sentence did the Court of Appeal impose in place of death?

It set aside the death sentence for the trafficking offences and substituted a lengthy term of imprisonment together with strokes of whipping, with the relevant sentences running concurrently from the date of arrest.

What did the Court say about preparatory acts and trafficking?

The Court examined whether the elements of possession and knowledge were proved and whether the acts relied on as preparatory were capable in law of amounting to trafficking under section 39B(1)(c) of the Dangerous Drugs Act 1952.