PUTRAJAYA: The Federal Court today sentenced a foreman to death for two counts of trafficking 37kg of cannabis, ruling that the burden lies on the accused to show that he or she had a licence to possess drugs.
The bench, led by retiring Court of Appeal president Ahmad Maarop, said the High Court had not erred in invoking the presumption under Section 37 (d)(a) of the Dangerous Drugs Act (DDA) 1952 in finding Jazlie Jaafar, 45, guilty of the offences.
“We find no misdirection or appealable error on the part of the learned judge of the High Court.
“Having carefully scrutinised the evidence on record and examined the judgment of the High Court, we are satisfied that the conviction and sentence on Jazlie for both charges are safe,” he said.
He also said the prosecution could rely on Section 36 of the DDA which states that the burden shifts to accused persons to prove they have the licence to possess a large quantity of drugs.
The bench also agreed that the prosecution could rely on common law principles regarding the burden of proof, as approved by courts in the UK and Singapore.
The appeal was heard six months ago by a seven-member bench consisting of then-chief judge of Malaya Zaharah Ibrahim and Federal Court judges Ramly Ali, Azhar Mohamed, Rohana Yusof, Abang Iskandar Abang Hashim and Nallini Pathmanathan.
Today’s judgment was made by a five-member bench as Zaharah and Ramly have since retired.
Lawyer Hisyam Teh who represented Jazlie said the prosecution must prove three elements before invoking the presumption of trafficking.
The elements are that the accused was found in possession of a dangerous drug, the weight of the drugs in question and the lack of a licence to possess the drugs.
According to the facts of the case, a police team had gone to a house in Wangsa Maju, Kuala Lumpur at about noon on March 3, 2015.
About 30 minutes later, Jazlie arrived on a motorcycle and stopped beside the road as if waiting for someone.
The police apprehended him and found a compressed slab wrapped in aluminium foil tucked in the front of his pants.
The slab, the subject matter of the first charge, was certified by a chemist as 1,013g of cannabis.
Jazlie also led the police into the house where two plastic boxes were found in a room. These were certified as containing 35.6kg of cannabis, the subject matter of the second charge.
Hisyam told reporters he would seek instruction from his client to file a review of today’s ruling as provided for under Rule 137 of the Federal Court Rules 1995.
“This appeal was heard by a seven-member bench but the judgment was delivered by only five,” he said.