Dato' Ahmad Zaharil Bin Muhaiyar

On the court record

Dato' Ahmad Zaharil Bin Muhaiyar appears in the corpus in serious criminal defence, and in particular in capital drug-trafficking prosecutions under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), argued in the High Court (Mahkamah Tinggi) and the Court of Appeal (Mahkamah Rayuan). Two of the reported matters arose from a single High Court trial of co-accused, in which — appearing for the accused — the court, applying the standard under section 182A of the Criminal Procedure Code (Kanun Tatacara Jenayah), found that 'pihak pendakwaan telah berjaya membuktikan kes melampaui batasan kemungkinan yang munasabah' (the prosecution had proved its case beyond reasonable doubt). Both accused were found guilty — 'Kedua-dua OKT dengan ini didapati bersalah' (both of the accused are hereby found guilty) — under section 39B(1)(a) of the Act, and each was sentenced to 'Hukuman penjara seumur hidup berkuatkuasa dari tarikh tangkap dan hukuman sebatan rotan sebanyak 15 kali' (life imprisonment taking effect from the date of arrest, and a sentence of 15 strokes of the rotan). A further matter, in the Court of Appeal and again appearing for the accused, was a 'rayuan terhadap sabitan dan hukuman' (an appeal against conviction and sentence) on a charge under the same section 39B(1)(a), which examined whether the prosecution had established a prima facie case, whether custody, control and possession of the drugs were proven, whether there had been a failure to administer the caution required under section 37B(1)(b) of the Act, and whether the trial judge had erred in rejecting the evidence of defence witnesses. The appellate matter shows the same issues re-argued one tier up: whether a prima facie case had been established at the close of the prosecution, whether the elements of custody, control and knowing possession were made out, and whether a procedural failure over the statutory caution under section 37B(1)(b) undermined the conviction. The profile is that of a defence advocate concentrated on the most consequential end of the criminal calendar, where conviction under section 39B carries the gravest penalties and the appellate scrutiny of possession and procedure is decisive.