Drug trafficking under Section 39B of Malaysia's Dangerous Drugs Act 1952 (DDA) is among the most serious offenses in the country. Convictions carry severe penalties, including the death penalty, life imprisonment, and corporal punishment. In such high-stakes cases, it is imperative to mount a robust and well-prepared defence.
Outlined below are common defences frequently employed in such cases, supported by case law examples that demonstrate their application in Malaysian courts:
1. Lack of Knowledge
Defence Overview
To prove trafficking, the prosecution must establish that the accused had knowledge of the drugs. If the accused was unaware of their presence, they cannot be found guilty. If someone was asked to transport a package and genuinely did not know it contained drugs, they can argue a lack of knowledge. Evidence, such as conversations or text messages showing they were misled, can support this defence.
Case Law
In LIM KIM WEI V PUBLIC PROSECUTOR [2020] 3 MLJ 152 the Court of Appeal acquitted the accused because the prosecution failed to prove the accused had knowledge of the drugs hidden in the boot of the car. The court emphasized that knowledge is a key ingredient in trafficking charges.
2. No Intent to Traffic
Defence Overview
Under Section 37 of the DDA, possession of certain quantities of drugs gives rise to a presumption of trafficking. However, this presumption can be rebutted by demonstrating that the drugs were for personal use or non-commercial purposes. A defence lawyer may produce medical or psychological reports, witness testimonies, or financial records to demonstrate that the accused lacked the means or intent to traffic.
Case Law
In PUBLIC PROSECUTOR V AZWAN IREWAN BIN ROSNI [2009] 8 MLJ 201, the accused argued that the drugs were for personal use. as evidence was alleged to be against the intent to traffic. The charged was then dropped and the accused was found guilty for the amended charge.
3. Challenging Presumptions
Defence Overview
The prosecution often relies on legal presumptions under Section 37 of the DDA, which shifts the burden of proof onto the accused. However, these presumptions can be rebutted with evidence to the contrary. If the drugs were found in a shared house or vehicle, the defence can argue that the accused was not the sole person with access to or control over the drugs.
Case Law
In MOHAMAD RADHI BIN YAAKOB v PUBLIC PROSECUTOR [1991] 3 MLJ 169, the accused successfully rebutted the presumption of trafficking by showing the absence of direct evidence linking him to trafficking activities. The court stressed the importance of concrete evidence rather than relying solely on presumptions.
4. Unlawful Search and Seizure
Defence Overview
Evidence obtained through illegal means can be excluded from trial. The defence can argue procedural violations, such as the lack of a warrant or improper handling of evidence, to weaken the prosecution’s case. The defence might scrutinize police reports and statements for inconsistencies or procedural errors. If evidence is found to be tampered with or improperly documented, it can be excluded.
Case Law
In PUBLIC PROSECUTOR V BATHMANATHAN A/L MANIAM [2021] MLJU 2474, the High Court ruled that a failure to follow proper procedures during the search and seizure rendered the evidence inadmissible. This led to the acquittal of the accused.
5. Mistaken Identity
Defence Overview
In cases involving multiple suspects, the accused may argue that they were wrongly identified as the person trafficking drugs. This defence often relies on proving reasonable doubt regarding ownership or control. If drugs are found in a shared vehicle or home, the defence can argue that another occupant had exclusive control over the substances.
Case Law
In PUBLIC PROSECUTOR v NORDIN BIN MURHABAN & ORS [2005] 7 MLJ 412, the court held that the prosecution has not made out a prima facie case against all the four accused persons. The prosecution failed to establish a direct link between the accused and the drugs.
6. Lack of Custody and Control
Defence Overview
To secure a trafficking conviction, the prosecution must prove the accused had custody and control over the drugs. If the drugs were in a public or shared space, the defence can argue the accused lacked exclusive access. The defence can present evidence showing that the drugs were accessible to multiple people or located in a place the accused had no control over, such as a public locker or rental car.
Case Law
In PUBLIC PROSECUTOR v MUHAMAD NASIR BIN SHAHARUDDIN & ANOR [1994] 2 MLJ 576, the High Court emphasized that mere proximity to drugs does not establish custody and control. The accused was acquitted as there was no evidence proving the drugs were in their exclusive possession.
7. Innocent Carrier Defence
Overview
The defence argues that the accused acted as an innocent carrier and did not know the contents of the package or luggage they were carrying. If the accused was transporting luggage or packages for someone else and did not inspect the contents, the defence can argue that they had no reason to suspect illegal substances were involved. Evidence such as communication with the sender or testimony about coercion or deception can be crucial.
Case Law
In MARIA ELVIRA PINTO EXPOSTO V PUBLIC PROSECUTOR [2020] 3 MLJ 21, the Federal Court acknowledged the possibility of an innocent carrier defence but emphasized that the accused must provide credible evidence to support this claim. The appellant was acquitted and discharged.
8. Coercion or Duress
Overview
If the accused was forced to traffic drugs under threats or coercion, they might argue the defence of duress. The accused needs to show evidence of coercion, such as testimonies, physical harm, or threats to themselves or their loved ones, which made it impossible for them to refuse participation.
Case Law
In CHU TAK FAI v PUBLIC PROSECUTOR [1998] 4 MLJ 246, the accused claimed the defence of duress, forcing him to act. The court considered the defence, however still found the accused guilty and upheld the conviction.
9. Gaps in the Chain of Custody
Overview
The prosecution must establish an unbroken chain of custody for the seized drugs to prove their authenticity and prevent tampering. The defence can argue that breaks in this chain render the evidence inadmissible. The defence can examine police reports, lab reports, and handling procedures to identify discrepancies or improper handling of the evidence.
Case Law
In PUBLIC PROSECUTOR V LEE YAU KET [2008] 4 MLJ 223, the court acquitted the accused after finding inconsistencies in the documentation of the drugs during transit, creating doubts about whether the drugs produced in court were the same as those seized.
10. Insufficient Evidence of Trafficking
Overview
The prosecution must prove beyond reasonable doubt that the accused trafficked the drugs. The defence can argue that mere possession or proximity to drugs does not equate to trafficking. The defence can argue that the prosecution failed to establish intent to traffic, particularly in cases where there are no supporting elements like significant cash, multiple drug packages, or equipment for distribution.
Case Law
In FORMI AFTA BIN AHMAD & ANOR V PUBLIC PROSECUTOR [2014] 1 MLJ 838, the court ruled that mere possession of drugs did not necessarily mean the accused intended to traffic.
11. Agent Provocateur Defence
Overview
The defence can argue entrapment if law enforcement agents induced or persuaded the accused to commit a crime they would not have otherwise committed. The defence needs to show that the accused was pressured or tricked into trafficking drugs by law enforcement or their agents, undermining the legitimacy of the charge.
Case Law
In PUBLIC PROSECUTOR V KOH CHONG HIOK & ANOR [2019] MLJU 762, the concept of entrapment was discussed during the prosecution’ stage where the courts have held that the prosecution has failed to established a prima facie case.
12. Mental Health or Cognitive Impairment
Overview
If the accused was suffering from a mental health condition or cognitive impairment that impacted their ability to understand their actions, this can serve as a defence. The defence can provide medical or psychiatric reports showing the accused was incapable of forming the intent to traffic drugs due to their condition.
Case Law
In MUHD HASLAM BIN ABDULLAH V PUBLIC PROSECUTOR [2020] 5 MLJ 91, the defence presented evidence of the accused’s mental health issues, which influenced the court’s decision on sentencing rather than conviction, the conviction was then set aside.
13. Ownership of the Drugs in Question
Overview
If the accused can show that the drugs belonged to someone else and they had no control over them, this can undermine the charge. The defence can argue that the drugs were planted or belonged to someone else by presenting evidence like witness statements, forensic findings, or demonstrating lack of fingerprints or DNA on the seized drugs.
Case Law
In PUBLIC PROSECUTOR V MOHD IRWAN BIN SULAIMAN [2009] 1 MLJ 117, the court found that the accused could not be convicted as the drugs were hidden in a location accessed by multiple people, and ownership was not clearly established.
14. Planting of Evidence
Overview
The defence may argue that law enforcement officers planted the drugs on the accused to fabricate the case. Evidence such as inconsistencies in police reports, lack of documentation, or tampered seals on the drug packages can support this defence.
Case Law
In PUBLIC PROSECUTOR V CAWTHAMEN A/L MATHEVAN AND ANOTHER CASE [2021] MLJU 813, the accused alleged that the drugs were planted. While this defence requires strong proof, courts have considered it when procedural irregularities were evident.
In conclusion, the defences outlined above highlight the critical importance of thorough preparation and strategic legal arguments in drug trafficking cases under Section 39B of the Dangerous Drugs Act 1952. By leveraging relevant case law and carefully examining the circumstances of each case, it is possible to challenge the prosecution's claims and seek a fair outcome in these highly consequential matters.
Authored by Vignash a/l Selvam
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