Muhamad Bin Nor Aziz & Anor v Pendakwa Raya

Appellant(s): Muhamad Bin Nor Aziz

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Azmi Bin Ariffin
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Datuk Meor Hashimi bin Abdul Hamid

• The two appellants were jointly tried and convicted by the High Court for trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 (read with s 34 of the Penal Code) and for possession of a poison under s 30(3) of the Poisons Act 1952, both offences arising from a drug deal set up by an agent provocateur (AP) and conducted through a vehicle in which both appellants were found with the drugs.
• The trial court had earlier acquitted the appellants (together with two co-accused) without their defence being called on a separate, related set of charges arising from a raid at a condominium unit the same night, on the ground the prosecution failed to establish a prima facie case; the vehicle charges and condominium charges had been tried jointly.
• At the defence stage, both appellants gave sworn evidence claiming they were unaware the bags they were carrying/handling contained drugs and that the drugs belonged to a third party ("Pijo"); the trial judge rejected this as an afterthought/mere denial and convicted them, sentencing both to death for trafficking and imprisonment for the poison charge.

• Whether there was a misjoinder of charges in trying the vehicle-arrest charges together with the condominium-arrest charges, and whether such joint trial caused prejudice to the appellants.
• Whether delay of about two years five months by the trial judge in delivering the written grounds of judgment rendered the convictions unsafe, and whether the evidence of the agent provocateur (AP) was credible and admissible without corroboration under s 40A of the Dangerous Drugs Act 1952.
• Whether the police investigation and prosecution's failure to call certain named individuals (alleged true owners of the drugs) as witnesses gave rise to an adverse inference under s 114(g) of the Evidence Act 1950, and whether a break in the chain of evidence occurred due to non-calling of the officer who conducted forensic "dusting".

• The Court held there was no misjoinder, as the two arrests formed part of the same transaction (same date, same accused, common witnesses/investigating officer, and the second arrest arose from information obtained in the first), and joint trial caused no prejudice; it also held mere delay in delivering grounds of judgment, absent evidence of actual injustice or misdirection, is insufficient to vitiate a conviction.
• The Court found the AP's evidence credible, consistent, and admissible under s 40A of the Dangerous Drugs Act 1952 without need for corroboration, establishing direct trafficking (carrying/delivering drugs) within the meaning of s 2 of the Act; it also held the defence's bare assertions about third parties did not meet the Alcontara notice requirements, and that failure to call those persons or the dusting officer did not create a material gap or attract an adverse inference, as the drugs were found in the appellants' custody, control and knowledge.
• Applying the "safe conviction" test from Mohd Johi Said & Anor v PP, the Court dismissed both appeals against conviction and affirmed the trafficking convictions, but allowed the appeals against sentence, substituting the death sentences with life imprisonment (30 years from date of arrest) and 12 strokes of the cane for each appellant.