Mahathir Bin Usman v Pendakwa Raya (S-05(M)-508-12/2021)

The Appellant was convicted by the Sandakan High Court under S.39B(1)(a) of the Dangerous Drugs Act 1952 (“the DDA”) and sentenced to be hanged by the neck until his death (‘the death sentence”) on 13 December 2021.

According to the Notice of Appeal filed by the Prisons Department on behalf of the Appellant, the appeal is only against the sentence imposed on the Appellant.

On the date of hearing, the Appellant informed the Court that they have made a representation to the Attorney General to have the death penalty substituted with life imprisonment. The learned Deputy Public Prosecutor has agreed to the substitution of sentence from the death sentence to life imprisonment of thirty (30) years with twelve (12) strokes of whipping.

The charge against Mahathir Bin Usman and one Ronel Bin Ajirul is drug trafficking under Section 39B(1)(a) of the DDA read together with Section 34 of the Penal Code. They were accused of trafficking 368.75 grams of Methamphetamine on 26 July 2018, at approximately 2:15 pm, in front of Restaurant Sampan, Bandar Letat Jaya, Sandakan, Sabah. The charge reads as follows: "That you both, on the 26th day of July 2018, at about 02.15 pm, located at the front of Restaurant Sampan, Bandar Letat Jaya, in the 3 district of Sandakan, in the State of Sabah, in furtherance of common intention of you both, did on your own behalf traffic in a dangerous drug to wit 368.75 gram of Methamphetamine and that you have thereby committed an offence under Section 398(1)(a) of the Dangerous Drugs Act, 1952 (Act 234) and punishable under Section 398(2) of the same Act, and read with Section 34 of the Penal Code."

The evidence presented against the Appellant is based on the evidence PW4, the arresting officer, who testified that he observed the Appellant carrying a grey knapsack with the words "Camel MOUNTAIN" from the bus station to the restaurant. When approached by the police, the Appellant and the other accused person attempted to flee but were apprehended after a scuffle.

PW5 (a raiding team member) corroborated PW4's testimony, confirming that the Appellant was carrying the knapsack.

A body search of Mahathir revealed the grey knapsack containing a black plastic bag, a red and white plastic bag and a clear plastic bag containing crystalline substances suspected to be drugs. The drugs were later identified as 368.75 grams of Methamphetamine.

PW1, a government chemist, confirmed through tests that the seized substances contained 368.75 grams of Methamphetamine.

At the end of the prosecution case, the learned Judge made a finding that the Appellant had custody and control of the drugs based 4 on direct evidence from PW4 and PW5. His attempt to flee and subsequent behaviour indicated guilty knowledge.

The learned Judge then invoked the statutory presumption under Section 37(da)(xvi) of the DDA which presumes trafficking based on the quantity of drugs unless proven otherwise.

With regard to the evaluation of the defense of the Appellant, the learned Judge held that the Appellant has failed to rebut this presumption. The learned Judge also found the Appellant’s defense implausible and unsupported by evidence.

The learned Judge made a finding that the prosecution had proven its case beyond reasonable doubt. The learned Judge concluded that the Appellant had custody, control, and knowledge of the drugs based on the totality of evidence, including his actions, statements, and the physical evidence found in the knapsack. The learned Judge then found the Appellant guilty of trafficking under Section 39B(1)(a) of the DDA and sentenced him to death.

This appeal is limited to the issue of sentence. For an offence committed under s 39B(1)(a) of the DDA, the punishment for the offence is stipulated under s 39B (2), which reads: “(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—

traffic in a dangerous drug;

offer to traffic in a dangerous drug; or

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

Any person who contravenes any of the provisions of subsection

shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than twelve strokes.” [14] Section 54 of the Abolition of Mandatory Death Penalty Act 2023 (ACT 846), which took effect on 4 July 2023, amended Section 39B

by reducing the number of whipping strokes from 15 to 12. Additionally, Section 54 of the said Act abolished Section 39B (2) and Section 39B(2B) of the DDA, regarding the statutory grounds that allow the court to exercise discretion in imposing a life imprisonment sentence along with whipping instead of death. [15] Consequently the Court is now vested with the discretion to impose a life imprisonment sentence. In the present appeal, both parties have agreed to the substitution of sentence from the death sentence to life imprisonment and whipping as provided by the law. [16] In the Appellant’s written submission, the Appellant raised the issue of the weight of the drugs vis-à-vis sentencing trend in several cases, the fact that there was no evidence of buying and selling, that the Appellant has no previous criminal record and that the Appellant was not appealing against conviction. Based on these issues, the Appellant urges this Court to allow the Appellant’s appeal against his sentence and proceed to substitute the death sentence with life imprisonment and the minimum strokes of whipping (12 strokes) (see paragraph 38 of the Appellant’s Written Submission dated 11 October 2024). [17] Since both parties have agreed that this appeal is limited to the issue of sentence only, that is, to the substitution of sentence from the death sentence to life imprisonment, and based on the evidence before the learned High Court Judge, we therefore affirm the conviction entered by the learned Judge. The appeal is allowed in respect of sentence only, with the death sentence imposed by the learned Judge is hereby set aside and the Appellant is sentenced to life imprisonment of thirty (30) years from the date of arrest (26 July 2018) with the minimum twelve (12) strokes of whipping. Dated: 29 May 2025 sgd (AZIZAH BINTI NAWAWI) Judge Court of Appeal, Malaysia Parties Appearing: For The Appellant : Majnah Binti Abdillah (Tetuan Peter Lo & Co) For The Respondent : Dpp Solehah Noratikah Binti Ismail (Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara)