Azrul Nizam Bin Kamaruddin & Anor v Pendakwa Raya

Appellant(s): Azrul Nizam Bin Kamaruddin

Respondent(s): Pendakwa Raya

• YA Dato' Paduka Azman Bin Abdullah
• YA Dato' Azmi Bin Ariffin
• YA Datuk Hayatul Akmal binti Abdul Aziz

• The two appellants were charged in the High Court with trafficking 78.83g of methamphetamine under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA 1952), read with Section 34 of the Penal Code.
• The High Court found a prima facie case, called for the defence, and subsequently convicted both appellants, sentencing them to life imprisonment and 12 strokes of the cane.
• Aggrieved by the decision, both appellants filed separate notices of appeal to the Court of Appeal against their conviction and sentence.

• Whether the High Court erred by simultaneously making a finding of actual possession based on direct evidence and invoking the presumption of possession under Section 37(d) DDA 1952.
• Whether the High Court erred in its finding of trafficking by relying on the definition of "concealing" under Section 2 DDA 1952, despite its own finding that the drugs were found in an open state, and by inferring trafficking solely from the quantity of drugs and the appellants' presence.
• Whether the High Court erred in concluding that the element of common intention under Section 34 of the Penal Code was proven merely by the appellants being found together with the drugs.

• The Court of Appeal found that the High Court committed a serious misdirection by simultaneously relying on direct evidence of possession and invoking the presumption under Section 37(d) DDA 1952.
• The Court reiterated that presumptions should only be applied when there is no direct evidence of the facts to be presumed, as their indiscriminate use places a heavier and unfair burden of proof on the accused.
• Consequently, the Court allowed the appeal, set aside the conviction for trafficking under Section 39B(1)(a) DDA 1952, and substituted it with a conviction for possession under Section 12(2) DDA 1952, punishable under Section 39A(2) DDA 1952, reducing the sentence to 9 years imprisonment and 10 strokes of the cane for both appellants.