Mohd Khairul Azwan bin Zakaria & Anor v Public Prosecutor

Appellant(s): Bhahira Bin Fakri

Respondent(s):

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

• YA Dato' Hadhariah Bt Syed Ismail
• YA Dato' Azmi Bin Ariffin
• YA Datuk Noorin binti Badaruddin

• The appellants were charged and convicted in the High Court under Section 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking 9573.1 grams of heroin and 115.5 grams of monoacetylmorphines.
• They were apprehended after attempting to flee from a Honda Accord car, which was intercepted by police, where the impugned drugs were subsequently found in the back seat and boot.
• The High Court found both appellants guilty, convicted them, and sentenced each to life imprisonment and 15 strokes of whipping.

• Whether the prosecution's failure to call a material witness (the alleged owner of the car) or tender her Section 112 statement prejudiced the defence and warranted an adverse inference under Section 114(g) of the Evidence Act 1950.
• Whether there was a break in the chain of evidence or serious doubt regarding the identity, weight, and handling of the impugned drugs from seizure to analysis.
• Whether the High Court erred in its assessment of the appellants' conduct (fleeing the scene) as indicative of knowledge, and in rejecting their defence as a bare denial or afterthought.

• The Court of Appeal unanimously dismissed both appeals, affirming the High Court's conviction and sentence, finding no appealable errors or misdirection in the trial judge's assessment of facts and application of law.
• The Court held that the appellants' immediate attempt to flee upon police interception created an inescapable inference of knowledge of the impugned drugs, and their explanations were deemed implausible and an afterthought.
• The Court found no material break in the chain of evidence, discrepancies in the drugs' weight or identity, or prejudice caused by the non-calling of the alleged car owner, as the witness was not deemed material given the overwhelming evidence.