[Pendakwa Raya] v MOHD SHARIZAL BIN AZIZ (NA-45A-1-01/2019)

The accused in this case, En Mohd Sharizal bin Aziz, was charged with the offence of trafficking dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952, as well as the offence of possession under section 12(2) of the same Act.

At the end of prosecution’s case, the court found that a prima facie case had been made out, and the defence was called to present its case. At the end of the defence’s case, the accused was found not to have raised a reasonable doubt, and was convicted. These grounds of judgment record the reasons for my decision.

The charges in this case read as follows: PERTUDUHAN 1 Bahawa kamu pada 29 Ogos 2018 jam lebih kurang 10.00 pagi, di tepi jalan Persiaran S2 D8 Seremban 2, di dalam daerah Seremban, di dalam negeri Negeri Sembilan Darul Khusus, telah didapati mengedar dadah berbahaya jenis “Heroin” dan “Monoacetylmorphines” berat bersih 22.7 gram. Dengan itu, kamu telah melakukan PP v Mohd Sharizal bin Aziz 2 satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta Dadah Berbahaya 1952. PERTUDUHAN 2 Bahawa kamu pada 29 Ogos 2018 jam lebih kurang 10.00 pagi, di tepi jalan Persiaran S2 D8 Seremban 2, di dalam daerah Seremban, di dalam negeri Negeri Sembilan Darul Khusus, telah didapati dalam milikan kamu dadah berbahaya jenis “Methamphetamine” berat bersih 38.46 gram. Dengan itu, kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A(2) Akta yang sama. The arrest 4. The following was the version of events that were narrated by the witnesses for the prosecution.

At about 10am on 29 August 2018, Inspector Varaa Letchumy Jayapalam (PW2) led a team of seven other police officers from the Narcotic Crimes Department of the Seremban District Police Headquarters to apprehend the accused at the side of a road located close to the Seremban court complex. At the time, the accused was sitting on a parked motorcycle, a red Ducati Monster 796 bearing the registration number DCX 58.

PW2 testified that the police had staked out the area in unmarked police cars from about 9.45am. The accused arrived some 10 minutes later and sat on the motorcycle with its engine running. It was only when the accused removed his helmet and placed it on the motorcycle that PW2 gave the signal for the police officers to strike, whereupon the unmarked police cars blocked in the motorcycle on which the accused was sitting.

PW2 identified themselves as police officers, and removed the key from the ignition of the motorcycle, which killed its engine. PP v Mohd Sharizal bin Aziz 3 8. A physical examination of the accused by Corporal Azrul bin Azlan (PW5) uncovered the existence of substance that was believed to be drugs. The substance was found in a zippered belt pouch bearing the brand Yamaha. According to the prosecution’s witnesses, the accused was wearing the belt pouch at the time.

As the motorcycle was in a location that could impede traffic, PW2 and the members of the raiding team led the accused to a location farther away from the main road, about 30-40 metres away.

Further examination was then undertaken of the contents of the belt pouch in the presence of the accused. The substance suspected to be dangerous drugs was found in a purple plastic bag with the words “Thank you” printed on it. Inside the plastic bags were:

(a) 14 plastic packets containing a white powdery substance. Subsequent analysis by the government chemist, En Rahman bin Mamat (PW1) established that the substance contained 15.6 grammes of heroin and 7.1 grams of monoacetylmorphines; and

(b) six packets containing a translucent crystalline substance. This was subsequently analysed by PW1 to contain 38.46 grammes of methamphetamines.

Both Inspector Varaa and Corporal Azrul testified regarding the reaction of the accused upon the discovery by the police of the contents of the belt pouch. This was the answer recorded from Inspector Varaa: PP v Mohd Sharizal bin Aziz 4 Apabila Inspektor membuat pemeriksaan lanjut ke atas beg pinggang tersebut menjumpai beg-beg plastik kecil mengandungi dadah tersebut, boleh jelaskan kepada mahkamah apa reaksi OKT ketika itu? Dia berasa takut, cemas, pasrah, semua sekali.

Corporal Azrul testified as follows: Setelah diserahkan beg pinggang kepada Inspektor Varaa, boleh jelaskan apa reaksi OKT ketika itu? Dalam keadaan takut.

Also found in the belt pouch were the following items:

(a) a portable digital weighing scale;

(b) unused empty transparent plastic packets; and

(c) a trial date card (kad tarikh bicara) issued by the Bahau Magistrates Court bearing the name of the accused. Subsequent to the arrest 14. The accused was thereafter taken in a squad car by Inspector Vaara to the Sikamat police station. Corporal Azrul took the motorcycle that the accused had been riding to the same station. At the police station, the gross weights of the substances recovered from the purple plastic bag were recorded. Two seizure forms (borang senarai geledah) listing the items recovered from the accused were countersigned by the accused at the police station. One of these forms related to the motorcycle (which was subsequently discovered to have been stolen) and the other to the belt pouch and the items recovered from within it.

Inspector Vaara (PW2) handed over the seized items to the investigating officer, Inspector Mohammad Azlan bin Mohd Zubir (PW8). He inspected and PP v Mohd Sharizal bin Aziz 5 marked them, and then kept the belt pouch and the substance believed to be drugs in a locked cabinet in his office. This was at approximately 3pm on 29 August 2018. Seven days later on 5 September 2018, he sent the items to Jabatan Kimia Malaysia in Petaling Jaya to be analysed by the government chemist. SECTION 39B OF THE DDA 1952 16. Sections 39B(1) and (2) of the Dangerous Drugs Act 1952 read as follows: Trafficking in dangerous drug

(a) traffic in a dangerous drug;

(b) offer to traffic in a dangerous drug; or

(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

The term “trafficking” is defined in section 2 of the Act in the following manner: "trafficking" includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;

The prosecution placed reliance on the presumption of trafficking set out in section 37 of the Act, the material portion of which reads as follows: PP v Mohd Sharizal bin Aziz 6 37 Presumptions In all proceedings under this Act or any regulation made thereunder— … (da) any person who is found in possession of— …

(i) 15 grammes or more in weight of heroin; …

Section 37(d) provides for presumption of possession: a person who has a dangerous drug in his custody or under his control is deemed to be in possession of the drug and to have known the nature of the drug. It is, of course, impermissible for the prosecution to invoke the presumption of possession where reliance has already been placed on the presumption of trafficking. As such, it fell to the prosecution to prove the element of possession.

In order to establish possession, the prosecution must show that the drugs were in the custody or under the control of an accused person, and that he knew that which was in his custody or under his control was a drug subject to the prohibition under the Dangerous Drugs Act 1952: see, for example, PP v Abdul Rahman Akif [2007] 4 CLJ 337. There were thus a physical element and a mental element to be proven.

The mens rea of possession is frequently established by an inference from the surrounding circumstances. PP v Mohd Sharizal bin Aziz 7 SECTION 12(2) OF THE DDA 1952 22. Section 12(2) of the Dangerous Drugs Act 1952 provides as follows:

Under this offence, the same element of possession must be proven by the prosecution: that the drugs were in the custody of the accused or under his control, and that he knew that the substances were prohibited drugs.

Section 11 provides that Part IV of the Dangerous Drugs Act 1952 applies to the drugs listed in Parts III, IV and V of the First Schedule to the Act. Methamphetamine is listed in Part III of the First Schedule.

It fell to the prosecution to prove in this case:

(a) that the drugs in question were:

(i) heroin and monoacetylmorphines, for the purposes of the charge under section 39B; and

(b) that the accused persons were in possession of the drugs. To prove this, the prosecution will need to establish that: PP v Mohd Sharizal bin Aziz 8

(i) the drugs were in the custody of the accused or were under his control; and

(c) that—for the purposes of section 39B—the accused was trafficking the drugs. Here the prosecution relied upon the presumption of trafficking in section 37(da)(iiia), which was capable of being invoked because the net weight of the heroin and monoacetylmorphines recovered was more than 15 grammes. Possession of the drugs 26. According to the witnesses for the prosecution, the drugs in question were found in the belt pouch worn by the accused.

What amounts to the physical element of possession—the animus possidendi—depends on the circumstances of each case. It is not possible to exhaustively list the operative factors in of all possible circumstances, nor is possible to lay down any general rule on the point: see the judgment of Thomson J in Chan Pean Leon v PP [1956] 1 MLJ 237, which was endorsed by the Federal Court in Ghasem Hozouri Hassan v PP [2018] 6 CLJ 133.

I was of the view that the element of physical possession was proven, as the plastic bag containing the drugs were found in the belt pouch worn on the body of the accused. The proximity of the drugs on the accused’s person meant that custody and control were proven.

That, of course, is not all that the prosecution needed to establish. The mental element of possession must also be proven: that the accused knew the PP v Mohd Sharizal bin Aziz 9 nature of the drug, or put another way, that what was contained in the purple plastic bag were dangerous drugs.

Short of a confession, the mens rea of possession would almost always have to be inferred from the surrounding circumstances. At the end of the prosecution’s case, I was able to infer from the evidence adduced up to that point that the accused knew that what was contained in the purple plastic bag were drugs. The critical items of evidence were:

(a) the drugs, in their unrefined state, had occupied most of the space in the belt pouch. The accumulated net weight of the substances was 496.12 grammes, or almost half a kilogramme. In order for the packets to fit into the belt pouch, they obviously had to be carefully packed. In other words, therefore, the drugs could not have been slipped into the belt pouch without the wearer noticing its volume or mass;

(b) in the Yamaha belt pouch together with the purple plastic bag was found the trial date card issued by the Bahau Magistrates Court bearing the name of the accused. This was an item of evidence that established the accused’s connection to the drugs. The existence of personal items of an accused found together with contraband would be suggestive of the fact that the accused would have handled the contraband or at the very least known about its existence; and

(c) Inspector Vaara Letchumy testified that when the accused was apprehended, he looked shocked and panicky. When the substances were uncovered from the belt pouch, PW2 perceived that he was fearful, anxious and resigned. The reaction of the accused was, in my view, telling, for he would have had no reason to be fearful or panicky PP v Mohd Sharizal bin Aziz 10 if he had no knowledge that the substances found on him were dangerous drugs.

I was of the view that, taken cumulatively, these items of evidence were sufficient to establish that the accused knew that what was contained in the purple plastic bag were dangerous drugs. The element of mens rea for possession was thus proven. Decision at the end of the prosecution’s case 32. At the end of prosecution’s case, based on a maximal evaluation of the evidence adduced up to that point, I formed the view that a prima facie case had been made out against the accused under:

(a) section 39B(1)(a) of the Dangerous Drugs Act 1952; and

(b) section 12(2) of the same Act.

Each of the elements of the offence of trafficking has been established:

(a) PW1, the government chemist, testified that his analysis revealed that the 22.7 grammes of heroin and monoacetylmorphines were recovered from the white power found in the 14 packets that were inside the purple plastic bag. Both heroin and monoacetylmorphines are listed in Part III of the First Schedule to the Dangerous Drugs Act 1952;

(b) the accused was in possession of the drugs, for the reasons explained in paragraphs 26 to 31 ante; and PP v Mohd Sharizal bin Aziz 11

(c) the accused was presumed to be trafficking the drugs by reason of the application of the presumption of trafficking in section 37(da)(iiia).

Similarly, the constituent elements for the offence of possession of methamphetamines have also been established:

(a) PW1 testified that the contents of six plastic packets found in the purple plastic bag were analysed to contain 38.46 grammes of methamphetamines; and

(b) the accused was in possession of the drugs, for the reasons explained in paragraphs 26 to 31 ante.

In his submissions at the end of the prosecution’s case, learned counsel for the accused raised a number of points in support of the argument that the prosecution had failed to establish a prima facie case. These are addressed below:

(a) Moving the motorcycle: break in the chain of evidence. It was contended by learned counsel for the accused that, when the accused and the motorcycle was moved from the location of the arrest to another location about 30-40 metres away, this had prejudiced the accused. This was because the belt pouch was no longer with the accused before the further examination of its contents were undertaken, and as such—it was argued—the chain of evidence was broken. The evidence of PW2 was that she had moved the accused and the motorcycle to the second location because their continued presence PP v Mohd Sharizal bin Aziz 12 at location of the arrest could impede traffic. I was of the view that this was a reasonable explanation, and saw no reason to disbelieve her testimony. Having carefully examined the notes of evidence, in particular the cross-examination of PW2 and PW5, I was of the view that it was not established in evidence that the belt pouch had left the sight of the accused before the further examination of its contents was undertaken. The contention of the defence was thus not made out;

(b) Absence of fingerprints on the plastic packets. The evidence received during the prosecution’s case established that the plastic packets containing the drugs had been dusted for fingerprints, but none could be recovered for the purposes of analysis. It was contended by counsel for the defence that the absence of the accused’s fingerprints on the plastic packets has raised a reasonable doubt regarding the prosecution’s case. I disagree. I was of the view that the absence of fingerprints on the plastic packets did not materially affect the prosecution’s case, as there were other items of evidence linking the accused to the drugs, from which the court could infer that he had had custody of and control over the drugs in question. The drugs in this case were found on his person. In addition, there was an item of personal identification that was found in the same bag from which the drugs were recovered;

(c) The gross weight of the drugs recovered. It was advanced for the accused that the drugs were weighed by Inspector Vaara (PW2) without the accused being present, and that the investigating officer (PW8) had relied entirely on the weight recorded in the perakuan serah dan terima barang kes (Exhibit P20(a)). It was further contended PP v Mohd Sharizal bin Aziz 13 that, as consequence, a reasonable doubt arose as to whether the drugs analysed were indeed those that were said to have been recovered from the accused at the time when he was first apprehended. I was of the view that the contention of the defence was not made out. The police report fled by PW2 (Exhibit P11) clearly spelt out the gross weight of the substance recovered. When the substance that was suspected to be dangerous drugs was given by PW2 to the investigating officer (PW8), the relevant form in Exhibit P20(a) showed the estimated gross weight of the substance. In addition, both PW2 and PW5 testified that the items seized had been weighed in the presence of the accused. Furthermore and in any event, the critical issue for the purposes of the offences for which the accused has been charged is the net weight of the dangerous drugs. This has been established through the evidence of PW1, the government chemist. There was nothing in evidence that showed that there had been a break in the chain of evidence so as to raise a reasonable doubt in this case. PW8 testified that, after receipt of the material recovered from the accused, he had inspected and marked them, and then kept them in a locked cabinet in his office before sending them to PW1 for analysis. Each of the prosecution witnesses who had custody of the materials recovered—PW2, PW5, PW8 and PW1—were able to identify them at trial; PP v Mohd Sharizal bin Aziz 14

(d) Processing of the seized items. It was advanced by the defence that the items that were recovered from the accused had not been processed in his presence. As alluded to above, this was not borne out by the testimonies of PW2 and PW5, both of whom testified that the accused had been present when the items were marked and processed at the Sikamat police station;

(e) The issuance of the seizure forms at the Sikamat police station. The facts established at trial showed that the seizure forms for the items that were recovered from the accused were issued at the Sikamat police station, and not at the place where the accused was arrested. It was advanced by learned counsel for the accused that this was an infirmity that somehow—it was not explained exactly how—raised a reasonable doubt. I was unable to agree with this submission. It is of course desirable for the seizure forms to be issued as soon as practicable, but there is no requirement in law for the forms to be issued in the field, at the place where an accused was arrested. On the contrary, such a requirement would be impracticable and contrary to common sense, as police officers cannot be expected to bring with them the necessary paperwork when they are undertaking field operations;

(f) The keeping of the seized items by PW8. The evidence of the investigating officer, Inspector Mohammad Azlan bin Mohd Zubir (PW8) was that, after he had received the seized items that were suspected to be drugs from PW2, he had inspected and marked them, PP v Mohd Sharizal bin Aziz 15 and then kept them in a locked cabinet in his office. This was at approximately 3pm on 29 August 2018. Seven days later on 5 September 2018, he had himself sent the items to Jabatan Kimia Malaysia in Petaling Jaya. There, he handed the items over to PW1, En Rahman bin Mamat, who was the government chemist. Learned counsel for the accused argued that this was contrary to accepted procedure, and that PW8 ought to have instead immediately sent the items to the police store to be recorded and registered. In my judgment, there is no legal requirement for an investigating officer to do so. More importantly, the testimony of PW8 did not show that there had occurred any break in the chain of evidence;

(g) The failure to prove that the items fit into the belt pouch. It was advanced by the defence that the prosecution had failed to prove that the substance suspected to be drugs was capable of fitting into the belt pouch. Dato’ Taqiyuddin further invited the court to conclude that, from the evidence adduced during the prosecution’s case, it would have been impossible for the plastic packets that were said to contain the dangerous drugs to have fit into the Yamaha belt pouch. Having carefully examined the photographs of the plastic packets recovered (see Exhibits P12(c) – P12(h)) against both the photograph of the belt pouch and the pouch itself (Exhibit P13), I was of the view that the substances in the plastic packets could in fact fit into the pouch. The contention of the defence in this regard was not made out; PP v Mohd Sharizal bin Aziz 16

(h) The issue relating to the ownership of the Ducati motorcycle. It was advanced for the defence that the police ought to have investigated the owner of the Ducati motorcycle that the accused was riding in order to establish that the drugs had not in fact been recovered from the motorcycle. At the end of the prosecution’s case, all the evidence pointed to the fact that the drugs had been recovered from the belt pouch that the accused had been wearing at the time. Learned counsel for the accused had put to the prosecution’s witnesses that the drugs had instead been recovered from the storage compartment under the seat of the motorcycle. The defence would have been under an obligation to put to the main witnesses of the prosecution the position of the defence at the earliest available opportunity, according to the rule in Browne v Dunn [1893] 6 R 67 (HL). However, the fact that this position was put to the witnesses for the prosecution does not mean that there was any evidence—at this stage in the proceedings—to establish the truth of the proposition put forth by the defence. Indeed, both PW2 and PW5 disagreed when it was put to them that the drugs had been recovered from the motorcycle. That being the case, nothing turned on the contended failure to investigate into the issue of the ownership of the Ducati motorcycle. In any event, the evidence received that trial showed that the Ducati had actually been reported stolen in Kelantan.

As I was of the view that a prima facie case had been made out, the accused was called to present his defence. PP v Mohd Sharizal bin Aziz 17

The accused elected to testify. An eyewitness was also called to testify on behalf of the accused. The evidence of the accused 38. According to the accused, he had borrowed the Ducati motorcycle that he was riding at the time of his arrest, and he had gone to the Seremban court complex because he had to attend court proceedings. He testified that he had stopped not at the place where the prosecution witnesses said that he done so, but across the road, adjacent to the guardhouse for the court complex.

His version of events was that he had been surprised by the presence of the two unmarked police cars that had surround him. According to him, a policeman had opened the belt pouch that he had been wearing but had found nothing of note in it. The first policeman then handed the belt pouch over to the an Indian lady whom he recognised as Inspector Vaara (as, according to his own testimony, he had previously been arrested by her in an unrelated case). The accused testified that, from the moment the belt pouch was removed from him, he no longer had any control over the bag, and that at times his view of the bag was blocked by the police personnel surrounding him.

The accused stated that he was put into one of the cars and driven to a nearby location adjacent to a row of shops. At the time he was in the car, he could not—according to his testimony—see the Ducati motorcycle, which had been pushed to the second location by two men. The accused further testified that one of the men had opened the storage compartment on the motorcycle, from which the purple “Thank you” plastic bag was removed. PP v Mohd Sharizal bin Aziz 18 41. He also testified that he had been hurriedly asked to sign the seizure forms (borang senarai geledah) without being given an explanation of their contents.

The gist of his testimony may be summed up as follows: the drugs had been recovered from the motorcycle and not the belt pouch, and that he had no knowledge regarding the drugs in question. The evidence of Mr Ong, DW2 43. The defence called a second witness, one Mr Ong Gon Hock (DW2). DW2 claimed to have been sat at a restaurant called De Suri close to where the accused was brought after his initial arrest. According to his testimony, he witnessed the events that unfolded when the accused was brought to the second location. At the time, the accused was handcuffed.

DW2 testified that he saw a purple plastic bag being retrieved by one of the men who had been pushing the Ducati motorcycle. According to him, the purple plastic bag was removed from the storage compartment of the motorcycle.

The evidence of DW2 thus corroborated the version of events put forth by the accused, that the drugs, which were contained in the purple “Thank you” plastic bag, were retrieved not from the belt pouch but rather from the storage compartment of the Ducati motorcycle. Their testimonies directly contradicted the evidence of Inspector Vaara (PW2) and Corporal Azrul (PW5). The question for the court was thus whether the evidence adduced during the defence’s case had sufficiently raised a reasonable doubt regarding the element of possession of the drugs by the accused. PP v Mohd Sharizal bin Aziz 19 The Court’s evaluation of the evidence raised during the defence’s case 46. After carefully evaluating the evidence put forth by the defence, I was of the view the evidence of the prosecution’s witnesses—specifically PW2 and PW5—were to preferred over the defence’s witnesses, and that the defence had not raised a reasonable doubt as would justify an acquittal of the accused. The reasons for this finding are as follows:

(a) There was nothing in the testimonies of PW2 or PW5 that would cause me to doubt their credibility. Their testimonies were consistent with one another, and each of their testimonies contained no contradictions. Furthermore, their evidence was not inherently improbable. In this regard, it is apposite to remind myself of the salutary words of Thompson CJ in PP v Mohamed Ali [1962] 1 MLJ 257: When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If he says he saw a cow jumping over the moon his evidence is, of course, not to be accepted, but if he says he saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of thing we all see every day of our lives) there is not the slightest justification for refusing to believe him. Of course if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a Police witness or not, who gives evidence on affirmation, should normally be accepted. Cows may no longer wander the main streets of Kuala Lumpur, but these words nonetheless remain instructive. If the version of events put forth by the defence was true, then the inescapable conclusion was either that the police officers had planted the drugs or that they had fabricated the evidence that the drugs had been retrieved from the belt pouch rather than from the storage compartment of the Ducati motorcycle. In my considered view, there PP v Mohd Sharizal bin Aziz 20 was little motivation or incentive for either of PW2 or PW5 to behave in such a manner;

(b) Having observed the demeanour and testimony of DW2, I was of the view that his credibility was questionable, and that no weight ought to be attached to his testimony. The specific instances that raised doubt over DW2’s testimony were as follows:

(i) the learned deputy public prosecutor had put to DW2 that the Ducati did not in fact have any storage compartment. The following was the answer recorded from DW2 in the notes of proceedings: Setuju kalau saya cadangkan motor Ducati itu tak ada tempat simpan barang, setuju atau tak setuju? Itu saya tak perasan Saya tanya Encik Ong, jawapan dia ada dua, you setuju ke tak setuju? Saya tak setuju saya rasa semua motor ada tempat simpanan In my view, if he had actually seen the purple “Thank you” plastic bag being retrieved from the storage compartment of the red Ducati, he would have immediately answered tak setuju in response to the first question. It does not stand to reason that he could not say whether the Ducati had a storage compartment if he had seen what he said he saw;

Each of the items of evidence enumerated in the preceding paragraph is not by itself decisive in my evaluation of the credibility of DW2. However, taken PP v Mohd Sharizal bin Aziz 23 together and coupled with my observation of his demeanour, I was of the view that:

(a) the testimonies of the police officers—Inspector Varaa (PW2) and Corporal Azrul (PW5)—were to be preferred over the testimonies of the accused and DW2; and

(b) DW2 was not a reliable witness and no weight at all ought to be attached to his testimony to the extent that the testimony sought to establish that the purple “Thank you” bag had been retrieved from the storage compartment of the red Ducati.

I found that the defence had not raised any reasonable doubt in this case, and convicted the accused:

(a) under the first charge for the offence of trafficking 22.7 grammes of heroin and monoacetylmorphines under section 39B(1)(a) of the Dangerous Drugs Act 1952; and

(b) under the second charge for the offence of possession of 38.46 grammes of methamphetamine under section 12(2) of the Act. SENTENCING Section 39B(1)(a)

Under section 39B(2), a person guilty of trafficking dangerous drugs is punishable by death by hanging, or imprisonment for life and no less than 15 strokes of the rotan. However, pursuant to section 39B(2A), the court may only impose the lesser sentence if, among others, the convicted person has “assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia”. No evidence to this effect was adduced in this case. PP v Mohd Sharizal bin Aziz 24 50. As such, I was constrained to impose the death sentence against En Sharizal.

At the time of writing, the government has proposed that the law be amended to grant judges a discretion to impose an appropriate sentence, with the maximum sentence being death by hanging. Had this discretion been available to me, I would have imposed a custodial sentence in this case, as the amount of heroin and monoacetylmorphines found on the accused was just 7.7 grammes above the threshold for the presumption of trafficking. Section 12(2)

Under section 39A(2)(r), a person guilty of possession of more than 30 grammes of methamphetamine is liable to be imprisoned for life or for a term of not be less than five years, and also be punished with whipping of not less than ten strokes of the rotan.

En Sharizal was found to be in possession of 38.46 grammes of methamphetamine. Having heard submissions of counsel, I ordered that he be imprisoned for a term of eight years commencing from 29 August 2018, and that he receive ten strokes of the rotan. 29 June 2022 Azizul Azmi Adnan Judge High Court Seremban PP v Mohd Sharizal bin Aziz 25 For the prosecution: Puan Sara Afiqah Zulkipli, Tuan Ahmad Sazali & Tuan Husni Fairos bin Ramly—Deputy Public Prosecutors For the accused: Dato’ Dr. Hj Taqiyuddin Yahya—Taqiyuddin & Partners