KOTA KINABALU: The Federal Court yesterday set aside the death sentence imposed on two 27-year-old men for drug trafficking and amended the charge against them to one of drug possession.
The five-member bench chaired by Chief Justice of Malaysia Tun Raus Sharif, who sat with Chief Judge of Malaya Tan Sri Wira Datuk Seri Ahmad Hj Maarop and Justices Tan Sri Datuk Zainun Ali, Tan Sri Dato’ Sri Azahar Mohamed and Tan Sri Dato’ Wira Aziah Ali, allowed the appeal by Eswaran Susop and Jaswant Singh Ranjit Singh.
They unanimously set aside the appellants’ conviction on the original charge under Section 39B (1) (a) of the Dangerous Drugs Act (DDA) 1952, which carries the capital punishment, and replaced it with a charge under Section 12 (2), punishable under Section 39A (2), both of the same Act, which carries an imprisonment for life or not less than five years and whipping of not less than 10 strokes.
Accordingly, both accused persons were sentenced to 20 years’ jail plus 10 strokes of the cane each for possession of syabu.
The duo, who were arrested for possession of 770.9 grams and 780.2 grams of syabu respectively at the arrival hall of Terminal Two, LCCT in Tanjung Aru on March 18, 2012, were ordered to serve their jail terms from the date of their arrest on March 18, 2012.
When asked by the court for their mitigation plea, Johor Bahru-based counsel Hisyam Teh Poh Teik, representing Eswaran, urged court to impose a jail sentence counting from the date of their arrest on the grounds that both accused were still very young.
In reply, the prosecution asked for a jail term of more than 20 years to be imposed on both appellants as the weight of the drugs was very high.
On October 22, 2013, the High Court here had sentenced the appellants, who were jointly tried, to death by hanging after finding them guilty as charged for drugs trafficking.
On July 18, 2016, the duo lost their appeal bid when the Court of Appeal affirmed the decision of the High Court.
In his submission, counsel Hisyam Teh raised the issue that the convictions cannot be sustained as they were based on approximation on weight of the drugs.
He argued that there was a slight amendment made when the lower court delivered its decision with the addition the word ‘about’ in the respective charges, as the trial judge was not satisfied with the evidence of PW2, who was a chemist. Consequently, the appellants were called upon to enter their defence.
The counsel said, as a consequence, both appellants were convicted for trafficking in the ‘about’ weight of the drugs. Counsel went on to point out that this was a serious misdirection as there was ambiguity as to the amount of drugs and the DDA is a piece of penal statute for which there is no room for ambiguities and uncertainties.
Counsels Dato’ Jagjit Singh Bant Singh, Ram Singh and Kimberly Yee were also counsels representing the appellants.
Meanwhile, the same court affirmed the death sentences of two men and a woman convicted of drug trafficking.
The appeals by Tan Boon Kwang, 36, Muhammad Rizal Kamarudin, 37 and Lan Yi Ling, 28, to have their convictions set aside were dismissed by the panel.
On June 3, 2015, Tan, who hails from Penang, was found guilty by the High Court for trafficking in 1,609 grams of cocaine at the Crime Investigation Department at Terminal Two of the Kota Kinabalu International Airport (KKIA) on October 26, 2013.
Muhammad Rizal was found guilty by the lower court on August 15, 2014 for trafficking in 2,850.60 grams of syabu at the Customs Passengers Examination of International Unit at the arrival hall of the KKIA on December 18, 2012.
As for Lan, who is from China, the High Court here had on November 30, 2015 found her guilty of trafficking in 336 grams of syabu at the arrival hall of the KKIA on August 17, 2014.
Tan and Lan had their appeals against the High Court decision dismissed on September 19, 2016 while Muhammad Rizal’s appeal was also dismissed on September 20, 2016, all the Court of Appeal here.
Ram Singh represented Tan and Lan while Muhammad Rizal was defended by counsel Farazwin Haxdy.