Wrong to rely on presumption to hang drug traffickers, Federal Court told

A seven-member bench is considering an appeal brought by construction worker sentenced to death for trafficking in 4.2kg of ganja. (AFP pic)

PUTRAJAYA: Accused persons charged with drug trafficking can only be convicted based on credible evidence, as allowed under the Criminal Procedure Code, the Federal Court heard today.

“Credible evidence is filtered and tested before an accused is found guilty or acquitted,” lawyer Hisyam Teh Poh Teik told a seven-member bench chaired by Chief Justice Tengku Maimun Tuan Mat.

The senior lawyer said the court should not rely on presumption under Section 37 (da) of the Dangerous Drugs Act 1952 to allow the prosecution to secure convictions in trafficking cases that carried the death penalty.

“The court must first make a finding of possession and then a case for trafficking based on the weight of drugs. Relying on presumption has no probative value and is erroneous.

”A presumption is a legal fiction and not a substitute for credible evidence as required under Section 180 (4) of the CPC,” he added.

The lawyer made this submission in an appeal brought by construction worker Abdullah Atan, who was sentenced to death by a High Court for trafficking in 4.2kg of ganja in a rented room along Jalan Permas, Bandar Baru Permas Jaya, Johor Bahru, on May 15, 2016.

The law presumes that anyone in possession of 200gm of ganja is a trafficker.

A High Court found Abdullah, 49, guilty of the charge and this was affirmed by the Court of Appeal.

Hisyam submitted that his client was entitled to an acquittal or, in the alternative, for the charge to be reduced to possession should the Federal Court accept his legal argument.

Deputy public prosecutor Mohd Dusuki Mokhtar, in response, said the trial judge invoked the presumption based on credible evidence by a prosecution witness.

“The chemist, who is an expert witness testified and the defence did not challenge his testimony. That is credible evidence based on presumed fact. The judge accepted the evidence of the chemist who is an expert witness under the Evidence Act,” he added.

Dusuki said once the prosecution proved a prima facie case for trafficking, the accused could rebut the presumption when defence was called.

He said section 37 (da) was a law passed by the Malaysian Parliament and Section 180 (4) of the CPC complemented the former.

However, Hisyam in his reply told the bench that Section 180 (4) placed a high burden of proof on the prosecution to prove a prime face case while section 37 (da) was a presumption based on a legal fiction

Tengku Maimun then fixed Aug 26 to deliver a written judgment.

Others on the bench were Court of Appeal president Rohana Yusof, Chief Judge of Malaya Azahar Mohamed, Vernon Ong Lam Kiat, Abdul Rahman Sebli, Hasnah Mohammed Hashim and Mary Lim Thiam Suan.

Meanwhile, Iranians Mahmood Yary Mohammad, Mohammed Reza Ghaem Panah Nezamali and Hassan Javadipirouz Avazali will also know whether they will be hanged or escape the gallows based on Abdullah’s verdict as the same argument was put forward in their case.

Hisyham represented Reza, Kamarul Hisham Kamaruddin appeared for Yary while Kitson Foong represented Hassan.

They were jointly charged with trafficking in 15.8kg of methamphetamine, widely known as syabu, at a house on Jalan Dutamas Melor 1 in Kuala Lumpur on Feb 11, 2012.

The law presumes that anyone in possession of 50gm of syabu is a trafficker.

All three were convicted by the High Court in January 2017 but the Court of Appeal only allowed the appeal by Yary.

Reza and Hassan are appealing against their convictions while the prosecution is appealing the acquittal of Yary.

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