A three-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said the conviction could not stand as the case had suffered from legal infirmities during the trial process and in the judgments of the lower courts.

“We find there is merit in the appeal. The conviction and sentence are set aside,” said the top judge who sat with Justices Rhodzariah Bujang and Hanipah Farikullah.

Lawyer Hisyam Teh Poh Teik, representing the accused, Khairul Azwan Zakaria, 38, had submitted that the prosecution could not be taken to have offered the appellant’s sister-in-law to the defence as a potential witness since the police could not trace her whereabouts.

“We could not interview her in deciding whether to call her as a defence witness. The appellant was forced to close his case without her testimony,” he said.

Hisyam, assisted by lawyer Low Wei Loke, also said the prosecution had failed to tender the statement recorded from her in court and had not provided a copy of it to the defence.

The lawyer said this resulted in a breach of Section 182A of the Criminal Procedure Code since the trial judge was not in a position to fully consider the evidence of the appellant and three other witnesses before finding Khairul guilty.

Hisyam also said the Court of Appeal had erred in relying on the presumption of trafficking and direct trafficking to affirm the conviction.

In reply, deputy public prosecutor Fuad Abdul Aziz urged the bench to maintain the conviction due to the concurrent findings of two lower courts.

“The non-calling and offering of a witness to the defence does not render the collapse of the prosecution’s case,” he said, adding that the trial judge evaluated the defence’s evidence in convicting Khairul.

Last year, the Court of Appeal affirmed the sentence of a 30-year jail term and 15 strokes of the rotan on Khairul and debt collector Bhahira Fakri, 44.

Bhahira did not file an appeal.

In 2023, the High Court found the duo guilty of trafficking 9.6kg of heroin and 115g of monoacetylmorphine at a parking space along Jalan Dutamas, Kuala Lumpur, at about 11.40pm on June 20, 2019.