A three-member bench chaired by Has Zanah Mehat substituted the charges to possession, resulting in the two accused just facing a jail sentence and whipping.
In the first case, lorry driver Mahadi Abidin was sentenced to 25 years jail but spared the rotan as he just turned 50 two weeks ago.
Those found guilty of possession risk facing a minimum 10 years and maximum 30 years in jail and a minimum 10 strokes of the rotan.
However, the Criminal Procedure Code exempts any offender who is 50 or older from whipping.
Has Zanah, who sat with Ahmad Nasfy Yasin and Mohd Che Ruzima Ghazali, said Mahadi was getting a longer jail term because of the weight of the drugs.
“There is merit in the appeal as there was a misdirection by the trial judge in calling for the defence of the appellant for trafficking. The conviction is not safe,” she said.
Mahadi was initially charged with trafficking in 9.7kg of cannabis at a parking space near a restaurant at Taman Sejati, Sungai Petani, Kedah on July 15, 2015.
Today, his lawyer, S Jayananda Rao, submitted that the trial judge had misdirected herself by imposing an indiscriminate burden of proof when calling for Mahadi’s defence.
Jayananda said the judge, in her oral decision on May 20, 2018, had called for Mahadi’s defence on grounds that there was direct and presumed trafficking and presumed possession.
However, in her grounds of judgment delivered on Jan 30, 2019, the judge said defence was called only for trafficking.
Jayananda, however, conceded that his client was in possession of the drugs and must face the brunt of the law.
Deputy public prosecutor Natrah Dollah urged the bench to invoke Section 60 of the Courts of Judicature Act to “cure the defect” as there was no miscarriage of justice.
The bench had earlier sentenced Mohd Fadli Yusoff, 41, to 15 years jail and 10 strokes of the rotan for possessing 103.44gm of methamphetamine at a house at Pandan Mewah Heights, Selangor, on Jan 3, 2016.
The High Court in Shah Alam had sentenced Fadli to death on Aug 30, 2018.
At the outset of the proceedings, lawyer V Saravanan told the bench the Attorney-General’s Chambers (AGC) had agreed to reduce the trafficking charge as the trial judge had invoked the double presumption in calling for Fadli’s defence.
This follows a decision by a nine-member Federal Court bench in April 2019 that one could only be presumed to be in possession or trafficking, but not both, before an accused was asked to enter his defence.
Deputy public prosecutor How May Ling confirmed the matter and urged the court to impose a deterrent sentence on grounds of public interest.
How later told reporters that Fadli would be serving a total of 15 years in jail and whipped 16 times as he was found guilty of two other offences of possession for which he did not appeal.
The High Court had sentenced him to three years jail and three strokes of the rotan for possessing 5.13gm of methamphetamine in his pocket.
He was also sentenced to four years jail and three strokes of the rotan for possessing 20.51gm of cannabis in the house on the same day.