Muhammad Faiz Bin Nasri v Pendakwa Raya

Appellant(s): Muhammad Faiz Bin Nasri

Respondent(s): Pendakwa Raya

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Noorin binti Badaruddin
• YA Dato' Ahmad Kamal Bin Md. Shahid

• The appellant was charged with trafficking in 102.0 grams of Methamphetamine (first charge, s.39B(1)(a) ADB 1952) and possession of 12.6 grams of a combination of Heroin and monoacetylmorphines (second charge, s.12(2) ADB 1952), both allegedly found in a bag he was carrying when arrested by police at the roadside.
• At the close of the prosecution case, the trial judge found a prima facie case on both charges, invoking the statutory presumption of trafficking under s.37(da) ADB 1952 for the first charge based on the weight of the drugs exceeding the statutory threshold.
• The defence's version was that the arrest and seizure actually occurred inside a friend's house, not at the roadside, and that the bag did not belong to him; the trial judge rejected this as a bare denial and afterthought, convicting on both charges and imposing life imprisonment and whipping for the first charge and 8 years' imprisonment with whipping for the second.

• Whether the trial judge erred in law by failing to make a specific finding, at the close of the defence case, on whether the appellant had successfully rebutted the statutory presumption of trafficking under s.37(da) ADB 1952 on a balance of probabilities.
• Whether the trial judge misdirected himself by requiring the appellant to rebut, on a balance of probabilities, the "finding of possession and knowledge" — a standard applicable to the presumption under s.37(d) ADB 1952 — when the presumption actually relied upon at the close of the prosecution case was the trafficking presumption under s.37(da), not the possession/knowledge presumption.
• Whether such a misdirection/non-direction as to the applicable burden of proof rendered the conviction on the trafficking charge unsafe, notwithstanding that possession and knowledge were otherwise proven on direct evidence.

• The Court held that the trial judge committed a serious and material misdirection (and non-direction) by conflating the burden of proof, wrongly requiring the appellant to rebut possession and knowledge on a balance of probabilities, when only the trafficking presumption under s.37(da) needed to be rebutted, and by failing to make any specific finding on whether that presumption was rebutted — following Mat Seyedalireza Seyedhedayatollah Ehteshamiardestani v PP and Mohammad Syafiq bin Shah Dahli v PP.
• Consequently, the conviction under s.39B(1)(a) ADB 1952 (trafficking) on the first charge was quashed and substituted with a conviction for possession under s.12(2) ADB 1952, punishable under s.39A(2), as the Court found the finding of physical possession and knowledge (based on direct evidence) remained safe and unaffected by the misdirection.
• The conviction on the second charge (possession under s.12(2) ADB 1952) was upheld as safe; sentences of 8 years' imprisonment and 10 strokes of whipping were imposed on both charges, to run concurrently from the date of arrest.