PUTRAJAYA: The Federal Court today held that judges hearing drug trafficking cases could rely on presumptions and inferences to determine if the prosecution had established a prima facie case against accused persons.
Chief Justice Tengku Maimun Tuan Mat, who led a seven-member bench, said the panel had traced the legislative history of Section 180 of the Criminal Procedure Code (CPC), in particular the amendments made in 1997 and 2006.
“We find that the purpose of Section 180(4) of the CPC was not to exclude the use of presumptions, inferences or anything other than direct evidence to establish a prima facie case,” she said.
Rather, she said, the purpose of Section 180(4) was to clarify Parliament’s intention for the threshold to be applied at the close of the prosecution’s case.
Tengku Maimun, who delivered the unanimous judgment, said this in dismissing a legal argument in support of appeals by two Iranians and a local who were sentenced to death for drug trafficking.
Lawyer Hisyam Teh Poh Teik, who represented construction worker Abdullah Atan, said accused persons could only be convicted based on credible evidence under the CPC.
He said the court should not rely on presumption under Section 37(da) of the Dangerous Drugs Act (DDA) 1952 to allow the prosecution to secure convictions.
He said a presumption was a legal fiction and not a substitute for credible evidence as required under Section 180(4) of the CPC.
Tengku Maimun said presumptions of fact and law operated in every legal system and its use had always been standard judicial practice.
“This court has endorsed the use of presumption in Section 37(da) of the DDA by the prosecution to establish a prima facie case of drug trafficking,” she said.
“What is required of the prosecution is to adduce credible evidence of the basic facts (the nature and amount of the drug and possession) in order to rely on the presumption of trafficking in Section 37(da).”
She said the presumptions in Sections 37(a) to (j) of the DDA had been in place since the promulgation of the Dangerous Drugs Ordinance 1952 and the presumption of trafficking in Section 37(da) of the DDA was inserted in 1997.
She said these statutory presumptions pre-dated the insertion of Section 180(4) of the CPC in 2006.
Therefore, she said, when Section 180(4) of the CPC was introduced, Parliament was presumed to be aware of the existing law and of the specific manner and method in which trafficking cases were proved.
“Had Parliament intended the drastic consequence of effectively repealing a long established statutory provision, one would expect the legislature to have said so in clear terms,” she said.
Tengku Maimun said the DDA was a specific law relating to and dealing with trials in respect of dangerous drugs while the CPC was a law of general application.
On the merit of the appeal, the bench upheld the death penalty imposed on Abdullah, who was sentenced to death by a High Court for trafficking in 4.2kg of ganja in a rented room at Jalan Permas, Bandar Baru Permas Jaya, Johor Bahru, on May 15, 2016.
The bench also upheld the death penalty imposed on Iranians Mohammed Reza Ghaem Panah Nezamali and Hassan Javadipirouz Avazali based on Abdullah’s verdict as the same argument was put forward in their case.
However, the bench dismissed the prosecution’s appeal against the acquittal of Mahmood Yary Mohammad due to lack of evidence.
They were jointly charged with trafficking in 15.8kg of methamphetamine, widely known as syabu, at a house at Jalan Dutamas Melor 1 in Kuala Lumpur on Feb 11, 2012.
All three were convicted by the High Court in January 2017, but the Court of Appeal only allowed the appeal by Yary.
Hisyham represented Reza and Kamarul Hisham Kamaruddin appeared for Yary while Kitson Foong represented Hassan.
Deputy public prosecutor Mohd Dusuki Mokhtar appeared for the prosecution in all the four cases.