Muhammad Zikri Hanafi Bin Ishak v Pendakwa Raya

Case Significance

Illustrates a post-reform sentencing outcome in a section 39B Dangerous Drugs Act 1952 trafficking appeal: the conviction and the section 37(da) presumption were upheld, but the mandatory death sentence was set aside and replaced with 30 years' imprisonment and whipping.

This decision of the Court of Appeal concerns an appeal against conviction and sentence for trafficking in dangerous drugs under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952). The appellant had been convicted by the High Court at Georgetown of trafficking in 346.2 grams of methamphetamine, found by the roadside, and sentenced to death. He appealed against both the conviction and that sentence. The principal grounds were whether the trial judge had made a maximum evaluation of the prosecution evidence, whether the appellant had the control, possession and knowledge of the drugs required, and whether the judge had erred in applying the presumption of trafficking under section 37(da) of the Act after finding possession.

On conviction, the Court of Appeal upheld the trial judge. It found that the appellant's defence — including a suggestion that the drugs belonged to another person and the account that he had not seen the red plastic bag in the motorcycle basket — did not raise a reasonable doubt on the prosecution case, not least because key parts of that defence, such as the alleged owner of the motorcycle, had never been put to the prosecution witnesses during cross-examination. The appellant had also failed to rebut the section 37(da) presumption on the balance of probabilities, and the quantity of drugs, far exceeding the statutory threshold, indicated that they were held for distribution. The conviction was therefore affirmed. On sentence, however, the court allowed the appeal: exercising the discretion now available following reform of the mandatory death penalty, it set aside the sentence of death and substituted a sentence of 30 years' imprisonment from the date of arrest (7 March 2019) together with 12 strokes of the rotan. The judgment illustrates a post-reform substitution of imprisonment for a death sentence while affirming a trafficking conviction.