Mohamad S Sham bin Baharoam v Pendakwa Raya

Appellant(s): Mohamad S Sham Bin Baharoam

Respondent(s):

• Pendakwa Raya
• [Pejabat Timbalan Pendakwa Raya Negeri Perak (Taiping)]

• YA Dato' Paduka Azman Bin Abdullah
• YA Dato' Azmi Bin Ariffin
• YA Datuk Meor Hashimi bin Abdul Hamid

• The appellant was convicted by the High Court under section 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking 273.2 grams of heroin and monoacetylmorphines, and sentenced to death by hanging.
• The conviction arose from a police operation following a tip-off, resulting in the appellant’s arrest at a parking area near Surau Plaza Tol Alor Pongsu, Perak, where drugs were found in his possession.
• The appellant appealed against both conviction and sentence to the Court of Appeal, arguing various points of law and fact.

• Whether the prosecution’s failure to call a key arresting officer (Sarjan Jafri) as a witness warranted an adverse inference under section 114(g) of the Evidence Act 1950.
• Whether the trial judge erred in rejecting the appellant’s defence as a mere denial and afterthought, and in allegedly taking over the prosecution’s role by questioning witnesses on the market value of the drugs.
• Whether the trial judge wrongly applied a double presumption under the Dangerous Drugs Act and imposed an excessive sentence, particularly in light of the abolition of the mandatory death penalty.

• The Court found no merit in the appeal against conviction, holding that the prosecution’s evidence was sufficient and the absence of Sarjan Jafri as a witness did not prejudice the defence, especially as he was offered to the defence but not called.
• The Court held that the trial judge was entitled to reject the appellant’s version as not credible, and that questions posed by the judge were within the permissible scope of section 165 of the Evidence Act 1950, not amounting to usurping the prosecution’s role.
• The Court affirmed the conviction but allowed the appeal against sentence, setting aside the death penalty and substituting it with 30 years’ imprisonment from the date of arrest, without whipping due to the appellant’s age.