MASIH PERVIAZ (W/PAKISTAN)

MASIH PERVIAZ (W/PAKISTAN)

Conviction under s39B for trafficking was unsafe because the trial judge failed to make an affirmative finding whether trafficking was established by direct evidence or by statutory presumption, thereby prejudicing the defence; however, factual evidence proved actual possession (swallowing and extraction of 46 capsules) so conviction for possession under s12(2) punishable under s39A(2) is safe and appropriate, and sentence of 17 years imprisonment plus 10 strokes is imposed.

Citation
B-05(M)-26-01/2018 (Mahkamah Rayuan)
Parties
Appellant: Masih Perviaz; Respondent: Pendakwa Raya (Public Prosecutor)
Court
M
Jurisdiction
Malaysia
Judgment Date
14 December 2021
Case Number
B-05(M)-26-01/2018 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal Under Dangerous Drugs Act 1952 / Court of Appeal Judgment on Appeal From High Court Conviction
Outcome
Appeal allowed in part: High Court conviction for trafficking under s39B set aside; substituted conviction for possession under s12(2) punishable under s39A(2); sentence of 17 years imprisonment and 10 strokes imposed from date of arrest.
Legal Topics
Trafficking, Possession, Chain of Custody, Presumptions of Trafficking, Standard of Proof
Source Language
Malay/English
Criminal Law Drug Offences Evidence Sentencing Trafficking Possession Chain of Custody Presumptions of Trafficking +1 more

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Parties

Masih Perviaz

Appellant

Pendakwa Raya (Public Prosecutor)

Respondent

Procedural Posture

Criminal Appeal Under Dangerous Drugs Act 1952 / Court of Appeal Judgment on Appeal From High Court Conviction

Legal Issues

  1. 1 Whether there was a break in chain of custody and doubt as to identity of drug exhibits
  2. 2 Whether the trial judge failed to specify whether trafficking was proved by direct evidence or by statutory presumption (affecting burden on defence)
  3. 3 Whether the trial judge erred in treating the appellant's defence as an afterthought and rejecting it as unbelievable

Ratio Decidendi

Conviction under s39B for trafficking was unsafe because the trial judge failed to make an affirmative finding whether trafficking was established by direct evidence or by statutory presumption, thereby prejudicing the defence; however, factual evidence proved actual possession (swallowing and extraction of 46 capsules) so conviction for possession under s12(2) punishable under s39A(2) is safe and appropriate, and sentence of 17 years imprisonment plus 10 strokes is imposed.

Court Disposition

Appeal allowed in part: High Court conviction for trafficking under s39B set aside; substituted conviction for possession under s12(2) punishable under s39A(2); sentence of 17 years imprisonment and 10 strokes imposed from date of arrest.

Orders

  • Set aside conviction under Section 39B of the Dangerous Drugs Act 1952
  • Convict appellant for possession under Section 12(2) punishable under Section 39A(2) of the Dangerous Drugs Act 1952