[Pendakwa Raya] v RAFAEL NUNEZ PAZ (BA-45A-33-03/2024)

Rafael Nunez Paz, a Bolivian national (Passport No. FE 34827), for case no. BA-45A-33-03/2024 (the accused) was charged with drug trafficking under section 39B of the Dangerous Drugs Act 1952 (DDA 1952), which is punishable under section 39B(2) of the DDA 1952. 24/07/2025 14:27:54

While Francyelle Barduino Fernandez for the case no. BA- 45A-26-03/2024 (Francyelle) was also charged with the same offence under DDA 1952.

On 4 June 2025, the prosecution informed the Court that the Attorney General's Chamber had accepted the accused's and Francyelle's representations, whereby the accused would plead guilty to the charge, and Francyelle would be acquitted and discharged from the charge.

The amended charge, as in Exhibit P2, preferred against the accused in the original text, states as follows: “Bahawa kamu RAFAEL NUNEZ PAZ (No. Passport: FE 34827) pada 1 Ogos 2023, lebih kurang jam 6.00 petang di Cawangan Pemeriksaan Penumpang, Aras 3, Balai Ketibaan Dalam Negeri, Terminal KLIA 1, Lapangan Terbang Antarabangsa Kuala Lumpur 1 di dalam daerah Sepang di dalam negeri Selangor Darul Ehsan telah didapati mengedar dadah berbahaya jenis kokain seberat 3.7140 kilogram (berat kasar) dan dengan itu kamu melakukan satu kesalahan di bawah Seksyen 39B (1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”

The charge was read and explained to the accused by the Interpreter, Dr Noorazrin Zakaria, in Spanish. The accused understood the charge, the nature, and the consequences of pleading guilty, and admitted to the facts and all the exhibits tendered by the prosecution in this case.

Following that, the Court convicted the accused of the charge and sentenced him to thirty years of imprisonment from the date of his arrest. Due to the accused's age, the Court did not impose a sentence of whipping. Whilst the Court discharged and acquitted Francyelle of the said charge.

However, by a notice of appeal dated 6 June 2025, the accused, unhappy with the conviction and sentencing by this Court, had filed an appeal to the Court of Appeal.

Hence, the Court's grounds of judgment.

The facts of the case can be found in the Exhibit marked as "P3 which the Court summarised as follows:

On 1 August 2023, Hazri bin Sabtu, the head of the raiding team, received intelligence information regarding passengers by the names Rafael Nunez Paz (the accused) and Francyelle Barduino Fernandez, who were travelling on flight no. ET0638 from Addis Ababa to Malaysia.

Upon arrival at KLIA 1, at the arrival checking passenger (Cawangan Pemeriksaan Penumpang (CPPI), the customs officers searched the backpacks brand RONCHANG, which the accused was carrying, and Francyelle was carrying a backpack brand KIMTINO.

The Customs Officers found cocaine soaked in the damp clothing stuffed in the backpacks. The accused was said to have custody and control over the dangerous drugs in both backpacks. From the investigation carried out by the investigating officer, it seems that Francyelle did not know about the drugs found in the KIMTINO backpack, as the shirts found in the KIMTINO backpack belonged to the accused, and the accused was the one who had placed the damp shirts soaked with cocaine.

The accused's counsel submitted on behalf of the accused and briefly submitted as follows: a) The accused was 68 years old at the time of his arrest. b) Worked as a track driver and occasionally as a taxi driver before he was arrested at KLIA1. c) The accused was facing hardship living in Bolivia, which resulted in the accused agreeing to become a drug mule for the payment of USD4000. d) The accused is a divorced man with two children, aged 42 and 41 years old, respectively. e) With the accused pleading guilty, it is a factor for the Court to consider, as it saves the court time. f) The accused expressed remorse and regret for his actions. g) Based on the facts of the case, two accused individuals were charged. As submitted by the counsel for the accused, he is an honest man, as acknowledged by his own mistakes and actions. h) The defence counsel strongly urged the Court to exercise its discretion to impose life imprisonment due to the accused's age.

The prosecution, on the other hand, emphasised the seriousness of the offence that the public interest should outweigh the accused's interest and urged the Court to impose a severe sentence in the interest of the public. FINDINGS AND ANALYSIS OF THIS COURT ON THE

The accused pleaded guilty to the charge, and the Court recorded his plea. The Court convicted the accused as per Exhibit P2 in accordance with Section 178(2) of the Criminal Procedure Code.

The Court then sentenced the accused to life imprisonment (thirty years of imprisonment) under the Abolition of Mandatory Death Penalty Act 2023 (Act 846), which is read together with Section 39B of the DDA 1952. Due to the accused's age, no whipping was imposed in light of section 289(c) of the Code. The life imprisonment is to take effect from the date of arrest.

Concerning the sentencing, the Court imposed the sentence under Section 183 of the Code, which is in line with Act 846, which amended the Dangerous Drugs Act 1952 in 2023, allowing the court discretion to impose life imprisonment with whipping instead of the death penalty.

As the DDA 1952 does not explicitly define "life imprisonment", the Court resorted to Section 3 of the Criminal Justice Act 1953 (Revised 1988), which defines the term of life imprisonment as 30 years. Refer to Pagal Midzfar Abduhari v Public Prosecutor [2025] CLJU 1307.

On the general principle of sentencing, the Court is aware and guided by the well-known principle propounded in R v Kenneth John Ball [1951] 35 Cr. The Court also referred to Rex v Grondkwoski [1946] All ER 560 and PP v Jafa daud [1981] 1 MLJ 315.

Based on the above, the Court's paramount consideration when sentencing is the element of public interest. In passing the sentence, the Court also considers the recent trend by the Court of Appeals, which imposed life imprisonment instead of a death sentence, as can be seen from the following cases:

Pagal Midzfar Abduhari v Public Prosecutor (supra); and

Mohd Ashfieq Mohamad v Public Prosecutor [2025] CLJU 1247.

The above formed the basis of the Court's decision on the conviction and sentencing. Dated: 19 July 2025.