Double presumptions for drug-trafficking conviction struck down


PUTRAJAYA: The Federal Court has struck down a provision under the Dangerous Drugs Act 1952 (DDA) which allows the use of “double presumptions” to secure the conviction of those accused of drug trafficking.

In a landmark decision, the nine-man bench led by Chief Justice Richard Malanjum declared Section 37A of the DDA unconstitutional as it violated Article 5 (1) read with Article 8 (1) of the Federal Constitution.

Article 5 (1) states that no one shall be deprived of his life or personal liberty while Article 8 (1) states all persons are equal before the law and entitled to equal protection.

“We are of the view that Section 37A prima facie violates the presumption of innocence since it permits an accused to be convicted while a reasonable doubt may exist,” he said.

The mandatory death penalty would be imposed on an accused person found guilty of drug trafficking.

Section 37A of the DDA was enacted in 2004 to allow the prosecution to rely on presumptions of “possession and knowledge of the drug” under Section 37 (d) and “trafficking” under 37 (da) of the DDA to secure convictions against drug traffickers.

The section overruled the Federal Court decision in the 1998 case of Muhammed bin Hassan v Public Prosecutor which had held that the use of the two presumptions was unduly harsh and oppressive.

The effect of Section 37A, on the operation of the two presumptions was that once the prosecution proves that an accused person had the custody and control of the drugs and the accused is presumed to have possession and knowledge of the drug. The “deemed possession” is then used to invoke a further presumption of trafficking the drugs.

In his decision, Malanjum said Section 37A constituted a substantial departure from the general rule, which could not be justified and was disproportionate to the legislative objective it served.

He said the application of what might be termed the “double presumptions” under the two subsections gave rise to a real risk that an accused might be convicted of drug trafficking in circumstances where a significant reasonable doubt remains.

“In light of the seriousness of the offence and the punishment it entails, we find that the unacceptably severe incursion into the right of the accused under Article 5 (1) fails to satisfy the requirement of proportionality housed under Article 8 (1),” he said.

Malanjum then quashed the convictions and death sentences of two female foreign nationals – Filipino Alma Nudo Atenza, 43, and Thai national Orathai Prommatat, 27 –who were found guilty of drug trafficking.

The court substituted their respective convictions to one of possession and sentenced Atenza to 18 years’ jail and Orathai to 15 years’ jail respectively for possession of the drugs.Atenza and Orathai were ordered to serve the jail term from the date of their arrest respectively on Aug 19 and July 17 in 2014.Atenza was charged with trafficking 2.5kg of methamphetamine at the KLIA on Aug 19, 2014 while Orathai was accused of trafficking 693.4g of cocaine in a hotel room in Jalan Hang Lekiu in Kuala Lumpur on July 1, 2014.Both women were found guilty and their respective appeals were dismissed by the Court of Appeal in 2015 and 2016. — Bernama