Azmi bin Yahaya & Anor v Public Prosecutor

Appellant(s): Azmi Bin Yahaya

Respondent(s): Pendakwa Raya

• YA Datuk Wong Kian Kheong
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Tuan Muniandy a/l Kannyappan

• Both appellants were jointly tried and convicted under section 39B(1)(a) of the Dangerous Drugs Act 1952, read with section 34 of the Penal Code, for trafficking in 10,950.1 grams of cannabis based on an undercover buy-bust operation in which an agent provocateur negotiated a sale directly with them inside a room.
• Following the Abolition of Mandatory Death Penalty Act 2023, the High Court exercised its discretion to substitute the death penalty with 30 years' imprisonment (from date of arrest) and 15 strokes of whipping for each appellant.
• The first appellant's defence blamed a third party ("Uji") for ownership of the drugs, while the second appellant raised an alibi that he was in the kitchen and not involved in the transaction; both appealed against conviction and sentence.

• Whether the prosecution proved direct trafficking (via "selling" under section 2 of the DDA) and common intention under section 34 of the Penal Code, without reliance on the statutory presumption under section 37(da).
• Whether the prosecution's failure to call the informant and an alleged third party warranted an adverse inference under section 114(g) of the Evidence Act 1950.
• Whether the trial judge's reference to the defence needing to displace the prosecution's case "on a balance of probabilities" amounted to a fatal misdirection, given that the correct standard for a defence based on direct evidence (rather than statutory presumption) is merely to raise a reasonable doubt.

• The Court held that the prosecution's evidence of active negotiation, display of the drugs, and quoted price established direct proof of "selling" under section 2 of the DDA, and that both appellants acted with common intention under section 34, rendering the convictions safe.
• The Court found no adverse inference arose from the non-calling of the informant or the alleged third party, as the prosecution is not obliged to call every person connected to preliminary surveillance provided it acts in good faith and unfolds a truthful narrative.
• Applying the principle that grounds of judgment must be read holistically, the Court held the trial judge's isolated reference to "balance of probabilities" was mere verbosity and not a fatal misdirection, since the judgment as a whole showed the correct "reasonable doubt" standard was applied; convictions were affirmed, the 30-year sentence upheld, but the whipping sentence was reduced from 15 to 12 strokes pursuant to the statutory minimum under section 39B(2) of the DDA.