Matin Bin Sahid v Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Case Significance

Illustrates that under the Abolition of Mandatory Death Penalty Act 2023 an appellate court may affirm a safe drug-trafficking conviction while exercising the new discretion to set aside the death sentence and substitute life imprisonment with whipping.

This Court of Appeal decision at Kota Kinabalu is a drug-trafficking appeal in which the conviction was affirmed but the death sentence was replaced with imprisonment under the reformed sentencing regime. The appellant had been convicted in the High Court and sentenced to death for trafficking in 169.90 grams of methamphetamine, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under section 39B(2), committed at an unnumbered house in Kg Mangga, Kelabakan, Tawau, Sabah. He had pleaded not guilty and claimed trial. At the close of the prosecution's case the trial judge had found a prima facie case on actual possession, which triggered the statutory presumption of trafficking under section 37(da)(xvi) of the Act, and the appellant was called to enter his defence.

On the conviction, the Court of Appeal was satisfied that the findings of fact rested on the trial judge's assessment of the oral evidence, whose credibility was for the trial judge to decide, and that the appellant had failed to rebut the presumption of trafficking on a balance of probabilities. It held that the prosecution had proved its case beyond a reasonable doubt and that the conviction was safe. On the sentence, however, it took into account the Abolition of Mandatory Death Penalty Act 2023, which came into effect on 4 July 2023 and confers a discretion to impose either death or life imprisonment with whipping of not less than 12 strokes for such an offence, weighing the mitigating and aggravating factors including the public interest and the quantity of drugs.

The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence, setting aside the death sentence and substituting life imprisonment with effect from the date of arrest together with twelve strokes of whipping. The judgment illustrates how, under the reformed regime, an appellate court may affirm a safe trafficking conviction while exercising the new discretion to substitute imprisonment for the death penalty.