To argue or not to argue?
I once had a dilemma; it was when I conducted a criminal appeal in the Court of Appeal. It was for a charge of drug trafficking, an offence punishable with death by hanging. The appellant (a person appealing against a decision) was caught when he arrived at the Kuala Lumpur International airport after flying in from an African country. The police officers arrested him after he cleared passport control because he behaved suspiciously. He arrived at 9pm but only went to the immigration at around 10am the next day. He did that because he was to only meet his contact, a man nicknamed “Boy”, at around that time. The police search of his body yielded nothing. They then took him to Serdang Hospital to have him x-rayed. It revealed many foreign objects in his stomach. So they gave him laxatives to excrete those objects over a few days. He laid 70+ capsules; each varying between 5 cm and 5.5 cm, which yielded a gross weight of close to 1 kg, and a net weight of 600 grams of methamphetamine (“meth”). I felt sorry for the officer and photographer that had to come around to the hospital after every load the appellant laid to mark, photograph and document the evidence. It was, undoubtedly, a shitty job but someone always has to do it. They charged him for drug trafficking. In Malaysia this is a charge pursuant to section 39B of the Dangerous Drugs Act 1952 (“DDA52”). We call it the ’39B’. The Appellant’s defence was this: he was persuaded to believe what he swallowed was some African herb after asking his employer what it was. His employer explained he wished to avoid the tax he would have to pay if he brought the herbs in officially. There was a hint of some duress about it too. Before the Appellant came to Malaysia, his employer flew him out of his country and had him stay in a different country. Once there, he was told he could not go home unless he first carried out this task. I felt there were two plausible arguments that could be made from those facts. The first was about the trial judge’s misapprehension of the evidence where it related to the Appellant’s knowledge of the drugs. I thought it was a fifty-fifty kind of argument; it had a wing and a prayer about it but I wasn’t sure whether it would fly. I was not going for a full acquittal but hoping for a reduction of the charge to section 39A DDA52, which was punishable only with imprisonment and whipping; no death. We call this the ’39A’. 39A is an offence of drug possession but with an increased penalty if found over a particular amount of drugs. Depending on the weight, the mandatory minimum is 2 years and 3 strokes of the rotan up to a minimum of 5 years and 10 strokes of the rotan. We can mentally appreciate that 39A is preferable sentence to 39B; but not having been through either, I am in no position to endorse one over the other. The second argument I was less confident about; or to be honest, I didn’t think very much of it. The argument was the trial judge found the appellant guilty through the use of ‘double presumptions’. In order to appreciate what a double presumption is, I will first explain what a presumption is. In law, a presumption is something the court can assume as having happened or exist once a particular set of facts are proven. For example, if X is proven in court to be in a room with a bag of drugs near him to which only he has the key, the court will presume he has knowledge of the drugs unless X can prove otherwise. This is known as a “true presumption”. A presumption can be rebutted or challenged. X has to prove in court that he didn’t know what was in the bag. The standard of proof (SOP) X has prove this is on a balance of probabilities (BOP) i.e. it was likelier to have happened than not have happened. This is known as the “civil” BOP because it applies throughout civil litigation. It is a lower standard compared to the criminal BOP. The criminal SOP is beyond a reasonable doubt (BRD). The prosecution must prove BRD that X committed the offence. This means there must be no reasonable doubts about the evidence that X committed the offence for the court to convict him of the offence. A double presumption occurs when a judge invokes a presumption because of another presumption. Following from the earlier example, let us say the bag of drugs contains 1 kg of meth. The court now presumes that since the amount of meth exceeds 50 grams, X is trafficking the drugs. “Trafficking” is defined under the act as doing any of the following in relation to the drugs: supplying, distributing, procuring, delivering, sending, carrying, transporting, administering, storing, receiving, giving, selling, buying, concealing, keeping, exporting, importing and manufacturing. Section 2 of the Dangerous Drugs Act 1952 In short, anything to do with drug dealing. Even if X only hides the drugs momentarily, he can potentially be charged with trafficking. The provision was meant to catch anybody and everybody involved in the act of bringing drugs into Malaysia and selling it, irrespective of the actual contribution to the drug dealing. Double presumptions are not allowed. The Federal Court said so in the decision of Muhammad bin Hassan v PP ]1998] 2 CLJ 170. Chong Siew Fai FCJ remarked ‘it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption as contended by the learned Deputy Public Prosecutor – a construction that ought to be adopted only if, upon the wordings of the two subsections, such an intention of the Parliament is clear, which, in our opinion, is not.” I italicized the phrase above to show where His Lordship seems to suggest
