ABD TALIB BIN BAKRI

ABD TALIB BIN BAKRI

Where heroin and monoacetylmorphines were found together in the same packets and analysed as part of the same seizure, they should properly be charged by reference to their combined weight under section 39A(2)(d); accordingly the Court allowed the appeal in part, quashed the separate second-charge conviction, accepted the amended single charge alleging combined weight (29.19g) and affirmed the sentence of 14 years imprisonment and 10 strokes to run concurrently from arrest date.

Citation
J-05(H)-455-09/2018 (Mahkamah Rayuan)
Parties
Appellant: Abd Talib bin Bakri; Respondent: Pendakwa Raya
Court
H
Jurisdiction
Malaysia
Judgment Date
25 October 2019
Case Number
J-05(H)-455-09/2018 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
Appeal allowed in part; conviction and sentence on second charge set aside; conviction on amended first charge (combined weight 29.19g) affirmed; sentence of 14 years imprisonment and 10 strokes upheld; all sentences to run concurrently from 11 August 2017.
Legal Topics
Drug Possession and Trafficking, Sentencing, Charge Amendment Under Section 39 A(2), Equality Before Law (article 8)
Source Language
Malay/English
Criminal Law Narcotics/drug Offences Constitutional Law Drug Possession and Trafficking Sentencing Charge Amendment Under Section 39 A(2) Equality Before Law (article 8)

Case Brief

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Parties

Abd Talib bin Bakri

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether separate charges should have been preferred for heroin and monoacetylmorphines found together or whether combined weight under s39A(2)(d) applies
  2. 2 Whether the trial judge failed to consider mitigating factors and whether the sentence (14 years + 10 strokes) was manifestly excessive
  3. 3 Whether prosecutorial practice in framing charges engaged Article 8(1) equality before the law

Ratio Decidendi

Where heroin and monoacetylmorphines were found together in the same packets and analysed as part of the same seizure, they should properly be charged by reference to their combined weight under section 39A(2)(d); accordingly the Court allowed the appeal in part, quashed the separate second-charge conviction, accepted the amended single charge alleging combined weight (29.19g) and affirmed the sentence of 14 years imprisonment and 10 strokes to run concurrently from arrest date.

Court Disposition

Appeal allowed in part; conviction and sentence on second charge set aside; conviction on amended first charge (combined weight 29.19g) affirmed; sentence of 14 years imprisonment and 10 strokes upheld; all sentences to run concurrently from 11 August 2017.

Orders

  • Quash conviction and sentence on Pertuduhan Kedua
  • Permit amendment of Pertuduhan Pertama to allege possession of 29.19 grams (24.01g Heroin + 5.18g Monoacetylmorphines) under section 12(2) read with section 39A(2) Dangerous Drugs Act 1952