Pendakwa Raya v MOHD KAMAL BIN JOHARI

Case Significance

Illustrates the operation of the trafficking presumption under section 37(da)(vi) of the Dangerous Drugs Act 1952 and the reformed sentencing discretion: on conviction for trafficking a large quantity of cannabis, the court imposed thirty years' imprisonment, concurrent across connected charges, with whipping excused for an offender over fifty.

This High Court decision at Kuala Lumpur is a drug-trafficking trial that resulted in conviction and a term of thirty years' imprisonment under the reformed sentencing regime. The accused faced three charges of trafficking in dangerous drugs, involving a large quantity of cannabis found with him. At the close of the prosecution's case, after maximum evaluation of the evidence — which had been vigorously cross-examined by defence counsel — the court made an affirmative finding of mens rea possession of the cannabis, holding the evidence to be credible, reliable and believable. By reason of the weight of the drugs, the court invoked the presumption of trafficking under section 37(da)(vi) of the Dangerous Drugs Act 1952, which shifted onto the accused the burden of rebutting that presumption on a balance of probabilities, and the accused was called to enter his defence on all three charges.

Having heard the defence, the court found that the accused had been unable to tilt the balance of probabilities in his favour so as to rebut the presumption of trafficking. It was satisfied that the prosecution had proved its case beyond a reasonable doubt, and it found the accused guilty and convicted him on the trafficking charges.

In sentencing, the court imposed thirty years' imprisonment pursuant to section 39B(2) of the Act, to take effect from the date of arrest, with the sentences to run concurrently because the charges arose from one series of acts so connected as to form the same transaction under section 164 of the Criminal Procedure Code. The accused was spared whipping because he was over fifty years of age and so exempt under section 289(c) of the Criminal Procedure Code. The judgment illustrates the operation of the trafficking presumption and the exercise of the reformed sentencing discretion to impose a lengthy custodial term.