PETALING JAYA: Hundreds of drug traffickers could escape the death penalty and have their charges reduced following a Federal Court ruling last week that stopped the prosecution from relying on double presumptions, a lawyer says.
Jeyaseelan Anthony said the prosecution might reduce trafficking charges to possession before the case starts in the High Court, or in the midst of trial if the presumptions were relied on.
“Those who have been convicted of trafficking but who are appealing to the Court of Appeal and Federal Court could also benefit from last week’s ruling,” he added.
Several drug appeals before the Court of Appeal were adjourned this week as lawyers asked for time to digest the apex court judgment.
However, Anthony warned that those convicted of trafficking based on direct evidence would not benefit from the ruling.
“The presumptions are not applicable if one is caught red-handed processing large quantities of drugs when the police raid the premise,” he said.
He added that presumptions are invoked when a suspect is caught carrying the drugs in a bag or a car.
“Usually, the drugs are concealed, and the double presumption of possession and trafficking is used to secure a conviction,” he told FMT.
In the landmark ruling, a nine-member bench chaired by Chief Justice Richard Malanjum struck out Section 37A of the Dangerous Drugs Act (DDA) as unconstitutional for violating Articles 5(1) and 8(1) of the Federal Constitution.
Anthony represented Thai citizen Orathai Prommatat in the Federal Court, which substituted her death sentence with 15 years’ jail for possession of 693.4g of cocaine in 2014.
The bench also substituted the death sentence of Philippines national Alma Nudo Atenza, who was found to be in possession of 2.5kg of methamphetamine in 2014 as well.
The prosecution had relied on Section 37A of the DDA on double presumptions, which was passed by Parliament and came into force on Feb 14, 2014.
It was rooted in the 1998 case of Muhammed Hassan v Public Prosecutor, where the Federal Court held that presumptions could not be used as that would be oppressive and unduly harsh on the accused persons.
The prosecution made several attempts to overrule Muhammed Hassan but did not succeed, resulting in the government inserting Section 37A to allow them to overrule the Federal Court judgment.
Lawyer A Srimurugan, who appeared for Alma, said the amendment put accused persons on an uneven playing field to prove their innocence while making it easier for the prosecution to prove custody and control.
“This means an accused is deemed to have knowledge and possession of the drugs,” he said.
He said a person is considered to be a trafficker when the weight of the drug in his or her possession is above the minimum statutory weight, for example 15g or more of heroin, 200g of ganja or 40g of cocaine.
“The burden of proof is shifted, and if the accused fails to rebut the presumptions, he can be found guilty and sentenced to death,” he added.
Srimurugan said those who exhaust their appeals and are convicted based the presumptions but placed on death row can file for a review.
“They can rely on Rule 137 of the Federal Rules 1995 to review the conviction on the basis that they were convicted on an unconstitutional provision,” he said.
As of October last year, there were 1,267 prisoners on death row, about 900 of whom were convicted of trafficking, according to de facto law minister Liew Vui Keong.