Islam Rabea Mohamed Ismail Elbanna v Pendakwa Raya

Appellant(s): Islam Rabea Mohamed Ismail Elbanna

Respondent(s):

• Pendakwa Raya
• [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

• YA Datuk Mohamed Zaini Bin Mazlan
• YA Dato' Azmi Bin Ariffin
• YA Datuk Noorin binti Badaruddin

• The appellant was charged in the High Court with three drug offences: trafficking 1,127g of cannabis (first charge), possession of 5.98g cannabis (second charge), and possession of 1.90g methamphetamine (third charge).
• The High Court convicted the appellant on all charges, sentencing him to life imprisonment and 12 strokes for the first charge, and 2 years imprisonment for the other two.
• The appellant appealed against the convictions and sentences, but later confined the appeal solely to the first charge, maintaining that the large quantity of drugs found in a "Samsung" bag belonged to another individual, Fathe, and not to him.

• Whether the High Court erred in failing to invoke an adverse inference under Section 114(g) of the Evidence Act 1950 due to the prosecution's failure to call or offer Fathe, a material witness, whose testimony was crucial to the defence.
• Whether the High Court erred in its assessment of the defence witness (SD2), summarily dismissing his testimony as an "interested witness" without providing sufficient critical evaluation or justification.
• Whether the High Court failed to properly consider the totality of the defence evidence, including the appellant's cautioned statement (D36) and SD2's testimony, thereby prejudicing the appellant and resulting in an unfair trial.

• The Court of Appeal found that Fathe was a material witness whose testimony was vital to the appellant's defence, and the prosecution's failure to secure his attendance or provide his Section 112 Criminal Procedure Code statement prejudiced the appellant's right to a fair trial.
• The Court held that the High Court erred in rejecting the defence witness's testimony without proper evaluation and in failing to consider the appellant's cautioned statement and the overall defence evidence in compliance with Section 182A of the Criminal Procedure Code.
• The appeal against the conviction and sentence for the first charge was allowed, the High Court's decision was set aside, and the appellant was acquitted and discharged from the charge of trafficking dangerous drugs.