Kota Kinabalu: A 31-year-old Sarawakian, who was sentenced to death for trafficking 2,129.1gm of syabu, escaped the gallows and was ordered to serve 20 years’ jail and 10 lashes of the cane, instead, on a lesser charge of drug possession.
Court of Appeal Justices Datuk Azman Abdullah, Datuk Azhahari Kamal Ramli and Datuk Noorin Badaruddin, on Thursday allowed Anthony Chan Wei Onn’s appeal against his conviction and death sentence.
The appellate court, in a unanimous decision, held that the High Court Judge had committed an appealable error in applying the presumption of possession at the end of the prosecution’s case and applying the presumption of trafficking at the end of the defence’s case.
Azhahari held that the double presumption had gone against the principle in the case of Muhammad Hassan against PP, warranting appellate interference by the court.
“On this ground alone, we are of the opinion that the conviction under section 39B(1)(a) is not safe.
“However, from evidence adduced during the trial, we find sufficient evidence to support the conviction under section 39A(2) of the Dangerous Drug Act. In the circumstances, we set aside the conviction under Section 39B(1)(a) of the Dangerous Drug Act and substitute it with the conviction under Section 39A(2),” said Azhahari in delivering the decision.
On the sentence, he said the court had considered the facts and circumstances of the case, especially the weight involved in the present case, and had taken into account the sentencing trend as submitted by both the counsel and the prosecution as respondent.
The court sentenced the appellant to 20 years’ imprisonment with 10 strokes of the cane and ordered the imprisonment sentence to run from his date of arrest.
On May 25, 2023, Chan, an air-conditioner repairman was found guilty by the High Court here of committing the offence on July 12, 2019, at 6.20pm at the J&T Express premises Jalan Lintas, here.
The charge under Section 39B(1)(a) of the Dangerous Drugs Act, carries the death sentence or imprisonment for life and whipping of not less than 15 strokes if not sentenced to death, on conviction.
Earlier, counsel Hamid Ismail, representing Chan, raised three grounds in the appeal and submitted, among other things, that the trial judge had committed three material errors relating to the statutory presumptions.
“Firstly, the trial judge breached the principle of double presumptions. Secondly, the judge changed the presumption during the course of the trial. During the prosecution stage, the judge invoked presumed possession.
“But at the end of defence case, the trial judge invoked presumed trafficking. This shows uncertainty in the judge’s mind on the applicable law.
“Thirdly, the trial judge made no indication at the end of prosecution case when ruling that a prima facie case had been established whether the defence was called on presumed possession and actual trafficking or vice versa,” said Hamid.
“If this Court accepts this ground, the appeal should be allowed and the conviction under Section 39B should be set aside and be substituted with conviction under section 39A(2),” he added, saying based on the trend of sentencing, 20 years is a proper period of imprisonment and 10 strokes of whipping.
