Aziz Bin Ahmad Law v Pendakwa Raya

Appellant(s): Aziz Bin Ahmad Law

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Tuan Muniandy a/l Kannyappan

• The appellant and a co-accused were jointly charged with trafficking in 188.4g of methamphetamine, possession of 17.4g of methamphetamine, and possession of 10.9g of caffeine (a poison), following a police ambush where the appellant was seen handing a package to the co-accused before both attempted to flee.
• At trial, the High Court found a prima facie case established against both accused and called them to enter their defence on all charges; at the end of the defence case, the appellant was convicted on all three charges (receiving life imprisonment and whipping on the trafficking charge) while the co-accused was acquitted and discharged.
• The appellant appealed against both conviction and sentence, arguing that the trial judge misdirected herself on the burden of proof and erred in finding common intention under section 34 of the Penal Code despite acquitting the co-accused.

• Whether the trial judge was obliged, at the close of the prosecution case, to expressly state whether the defence was being called to answer a case of "actual trafficking" or "presumed trafficking" under section 37(da) of the Dangerous Drugs Act 1952, and whether failure to do so amounted to misdirection.
• Whether the trial judge had correctly directed her mind to the appropriate burden of proof (balance of probabilities to rebut the statutory presumption, versus raising reasonable doubt) at both the prima facie and defence stages.
• Whether the acquittal of the co-accused, on the basis that common intention was not proven, undermined the finding of common intention under section 34 of the Penal Code against the appellant, and what evidentiary consequence this had on the safety of the appellant's conviction.

• The Court held, following the Federal Court majority decision in PP v Julasiri Akilmara, that there is no statutory or legal requirement for a trial judge to expressly state whether the defence is called to answer actual or presumed trafficking, as the statutory presumption is a rule of evidence and not a separate offence; the Court found the trial judge had correctly directed herself on the burden of proof at both the prima facie and defence stages.
• The Court held that once common intention under section 34 collapses due to the acquittal of the co-accused (on grounds of insufficient evidence of knowledge, consent or common intention), criminal liability cannot be automatically transferred to the remaining accused unless the prosecution independently proves, beyond reasonable doubt, that the remaining accused had exclusive possession, custody, control and knowledge of the drugs.
• The Court found the trial judge erred by accepting the defence evidence of the co-accused (leading to his acquittal) while rejecting the appellant's defence and his wife's corroborating testimony without objective and fair judicial evaluation; consequently, the conviction was held unsafe, the appeal was allowed, and the appellant was acquitted and discharged forthwith.