Sabirin Bin Kadir v Pendakwa Raya

Appellant(s): Sabirin Bin Kadir

Respondent(s):

• Pendakwa Raya
• [Timbalan Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Datuk Meor Hashimi bin Abdul Hamid

• The appellant was convicted in the High Court of trafficking in dangerous drugs (62.72 grams of Methamphetamine) under section 39B(1)(a) of the Dangerous Drugs Act 1952, after drugs were found in the pocket of shorts allegedly worn by him during a police raid on a house in Langkawi.
• The trial judge found direct evidence of possession, custody and knowledge, triggering the statutory presumption of trafficking under section 37(da)(xvi) of the Act, and the appellant was sentenced to life imprisonment (30 years from arrest) and 12 strokes of the cane.
• At the defence stage, the appellant claimed the shorts and drugs were not his, alleging the drugs were found in a bag belonging to other occupants of the room, and that he was merely resting in the room feeling unwell.

• Whether the prosecution's failure to produce the physical exhibit of the shorts (in which the drugs were allegedly found) at trial broke the chain of evidence and created a fatal gap in the prosecution's case.
• Whether the prosecution's failure to call two named individuals (alleged actual occupants/owners of the drugs) as witnesses warranted an adverse inference under section 114(g) of the Evidence Act 1950.
• Whether the sentence of 12 strokes of whipping was legally irregular given that the appellant was a youthful offender at the time of the offence, engaging the sentencing cap under section 288(5) of the Criminal Procedure Code.

• The Court distinguished the case relied upon by the appellant (where a "sling bag" exhibit was never explained and a third party was implicated), holding that here the loss of the shorts was adequately explained by a police report from the investigating officer, and the finding of drugs in the appellant's pocket was independently corroborated by police reports, a search list, and photographs.
• The Court held that the failure to call the two named individuals as prosecution witnesses did not warrant an adverse inference, as they had been offered to the defence and the defence's failure to call them left its allegation as a mere unsubstantiated bare denial; calling witnesses remains the prosecution's prerogative.
• The conviction was upheld as safe under the principle that appellate courts do not disturb trial court findings absent clear error or insufficient judicial appreciation of the evidence; however, the sentence of whipping was reduced from 12 to 10 strokes to comply with the statutory maximum for youthful offenders, while the 30-year term of life imprisonment was affirmed.