Pendakwa Raya v Mohamad Shafiruz Bin Roselai

Case Significance

Illustrates the assessment of a defendant's role and the presence or absence of aggravating factors in choosing between death and imprisonment for a section 39B Dangerous Drugs Act 1952 trafficking conviction — here life imprisonment and whipping, the accused not being a major player.

This decision of the High Court of Malaya at Butterworth records the trial of an accused charged with trafficking in dangerous drugs under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), the subject being methamphetamine weighing 129.8 grams found in front of a house. At the close of the prosecution case the court found a prima facie case established and called on the accused to enter his defence. The accused elected to give sworn evidence and called four other defence witnesses. A significant feature of the defence stage was the challenge to the credibility of the defence witnesses, and in particular the effect of contradictions between what a defence witness had said in a recorded statement and that witness's oral evidence in court.

At the close of the defence the court held that the accused had failed to rebut the presumption of trafficking under section 37(da) of the Act on the balance of probabilities and had not raised a reasonable doubt on the elements of possession and knowledge; the contradictions in the defence evidence undermined its reliability. The court therefore convicted the accused of trafficking. On sentence, the court considered whether the case warranted the death penalty under the reformed sentencing regime, weighing the recognised factors and giving due regard to the public interest. It found that the accused had not played a major role in drug-trafficking activity — he had not, when raided, been selling or processing drugs in large quantity — and that there were no aggravating factors justifying a sentence of death. Exercising its discretion accordingly, the court imposed a sentence of imprisonment for life from the date of arrest together with 12 strokes of the rotan. The judgment illustrates the assessment of a defendant's role and the absence of aggravating factors in choosing imprisonment over death under the reformed regime.