Following a decision made in the Tawau High Court in the mid of October 2021, sentencing a 55-year-old single mother to death for trafficking 113.9g of methamphetamine, it renewed the call for the abolishment of death penalty in Malaysia.[1] During the period of the Movement Control Order (18 March 2020 - 16 April 2020), there were 3,923 people detained for drug offences and of this total, 208 were detained for drug trafficking offence.[2] Death sentence is mandatory under Section 39B of the Dangerous Drugs Act 1952 which states as follow:
“(1) No person shall, on his own behalf or on behalf of any other person, whether or not such
other person is in Malaysia ---
(a) Traffic in a dangerous drug;
(b) Offer to traffic in a dangerous drug; or
(c) Do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.
(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an
offence against this Act and shall be punished on conviction with death.”[3]
Dangerous drug is defined under Section 2 of the Dangerous Drugs Act 1952 as any drug or substance which comes under the First Schedule of the Act.[4]
Malaysia is one of the few countries, such as Singapore, China and Indonesia, that still implements death penalty.[5] The aim of having capital punishment is to deter potential offenders from carrying out the same offence and to incapacitate offender to reduce the occurrence of similar offences. Such severe sentence was deemed to be mandatory for the protection of public interest and to show public disapproval of such action.[6]
Proving the offence
To prove drug trafficking in Malaysia, burden is on the prosecution to prove the ingredients of the offence,[7] that is: (i) the drug or substance must be a dangerous drug, (ii) the accused has custody and control of the dangerous drugs, (iii) weight of the dangerous drugs exceeded the permitted limit, (iv) accused had knowledge of the nature of the dangerous drugs. Evidence must be adduced to prove these ingredients. Pursuant to Section 37(da) of the Dangerous Drugs Act 1952, if all the ingredients are proven, the court can make presumption that there is an intent to traffic.[8]
Court must be satisfied that the accused had exclusive possession of the dangerous drug to sustain a conviction for trafficking, mere possession alone would not suffice to convict. In the case of Public Prosecutor v Tukiman bin Demin,[9] the court held that ‘exclusive possession’ means the place where the drugs were found must be exclusive to the accused. However, the possession of drugs need not be exclusive. Therefore, for possession to be established, accessibility by others to the place where the drugs were found must be excluded. This can also be seen in the case of Public Prosecutor v Muniandy,[10] where the court held that without the evidence of the tenant, the prosecution has failed in its duty to establish that the accused was the exclusive occupier of the room or has exclusive use of the room, to attract any inference of possession by the accused.
If there is any flaw or inconsistency in evidence, the prosecution deemed to have failed to prove beyond reasonable doubt. In the case of Public Prosecutor v Chong Joon Hong,[11] the judge acquitted and discharge the accused on the grounds that exclusive possession was not established because the lock of the room where the drugs were found was faulty and DNA report showed that four other men had been in the room other than the accused and the accused’s sister testified that two men and a woman visited the room before the raid. Also, the three raiding officers gave different versions on how the accused reacted when asked whether he kept any drugs in the room. Most importantly, the anomaly on the weight of the drugs, particularly the lesser net weight compared to the gross weight was not explained in the re-examination of the chemist nor was the officer recalled to explain. In addition, the accused’s fingerprint was not found on the packaging of the drugs. There were discrepancies in this case which could not be reconciled. Thus, the judge has to acquit the accused as the prosecution could not prove beyond reasonable doubt.
Conclusion
As quoted by William Blackstone, “It is better that ten guilty persons escape than that one innocent suffers”. The court is extremely cautious when deciding criminal cases such as drug trafficking because it carries severe punishment. If there is any doubt or discrepancies with regards to the evidence, the court will not hesitate to discharge or acquit the accused on the basis that the prosecution had failed to prove the case beyond reasonable doubt. Gap and infirmities in the prosecution case shall not lead to conviction.
[1] Martin Carvalho, “Calls renewed to abolish mandatory death penalty for drug offences”, The Star, 19 Oct 2021 [2] Lucy Harry, “Covid-19 and the effects on women involved in drug trafficking in Malaysia”, 15 Jan 2021 [3] Section 39B of the Dangerous Drugs Act 1952 [4] Section 2 Dangerous Drugs Act 1952 [5] “Death Penalty for Drug Offences: Global Overview 2020”, Harm Reduction International, 2021 [6] Nasrijal N.M.H, Joni E.K.E., & Talib A.N. (2020), Death Penalty for Drug Trafficking Cases in Malaysia: Theory vs Reality, International Journal of Academic Research in Business and Social Sciences, 10(3), 533-547 [7] Section 101 of the Evidence Act 1950 [8] Section 37(da) Dangerous Drugs Act 1952 [9] Public Prosecutor v Tukiman bin Demin [2008] 4 MLJ 79 [10] Public Prosecutor v Muniandy [2012] 2 CLJ 1064 [11] Public Prosecutor v Chong Joon Hong [2012] 8 MLJ 153
Authored by Loh Yi Qing and Tan Yi Xuan
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