SHAHFARY BIN SABRI [ ]

SHAHFARY BIN SABRI [ ]

Conviction affirmed because prosecution proved identity and weight of the methamphetamine (149.5g) by admissible chemical report and unbroken chain of custody; trial judge's acceptance of SP4's evidence that the drugs were found concealed on the appellant's person was credible and unrebutted; s.114(g) was inapplicable because non-called co-occupants and CCTV were not material to a recovery from the accused's body; appellant failed to rebut s.37(da); death sentence set aside and substituted with imprisonment for life and 12 strokes under the 2022 Act.

Citation
W-05(M)-174-04/2021 (Mahkamah Rayuan)
Parties
Appellant/accused: Shahfary bin Sabri; Respondent/prosecution: Pendakwa Raya
Court
M
Jurisdiction
Malaysia
Judgment Date
8 January 2024
Case Number
W-05(M)-174-04/2021 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Court of Appeal Decision (final)
Outcome
Appeal dismissed in respect of conviction; conviction under s.39B Dangerous Drugs Act 1952 affirmed; death sentence set aside and substituted with imprisonment for life from date of arrest and 12 strokes.
Legal Topics
Possession With Intent to Distribute, Dangerous Drugs Act 1952 S.39 B, Presumption Under S.37(da) Dangerous Drugs Act 1952, Adverse Inference S.114(g) Evidence Act 1950, Abolition of Mandatory Death Penalty and Sentencing Substitution 2022
Source Language
Malay/English
Criminal Law Drug Offences Evidence Law Sentencing Possession With Intent to Distribute Dangerous Drugs Act 1952 S.39 B Presumption Under S.37(da) Dangerous Drugs Act 1952 Adverse Inference S.114(g) Evidence Act 1950 +1 more

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Parties

Shahfary bin Sabri

Appellant/accused

Pendakwa Raya

Respondent/prosecution

Procedural Posture

Criminal Appeal / Court of Appeal Decision (final)

Legal Issues

  1. 1 whether prosecution proved all elements of s.39B Dangerous Drugs Act 1952
  2. 2 application and rebuttal of the presumption of distribution under s.37(da) ADB 1952
  3. 3 whether s.114(g) Evidence Act 1950 adverse inference applies for failure to call co-occupants or produce CCTV/garments

Ratio Decidendi

Conviction affirmed because prosecution proved identity and weight of the methamphetamine (149.5g) by admissible chemical report and unbroken chain of custody; trial judge's acceptance of SP4's evidence that the drugs were found concealed on the appellant's person was credible and unrebutted; s.114(g) was inapplicable because non-called co-occupants and CCTV were not material to a recovery from the accused's body; appellant failed to rebut s.37(da); death sentence set aside and substituted with imprisonment for life and 12 strokes under the 2022 Act.

Court Disposition

Appeal dismissed in respect of conviction; conviction under s.39B Dangerous Drugs Act 1952 affirmed; death sentence set aside and substituted with imprisonment for life from date of arrest and 12 strokes.

Orders

  • Conviction under section 39B Dangerous Drugs Act 1952 is affirmed.
  • Death sentence imposed by the High Court is set aside and substituted with imprisonment for life from date of arrest and twelve (12) strokes of the cane.