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2022 MarsdenLR 1971
FEDERAL COURT PUTRAJAYA
ARIFF ARHANNAN CHE UDIN – Appellant
Versus
PP & ANOTHER APPEAL – Respondent
[Criminal Appeal Nos: 05(M)-22-02-2020(N) & 05(L)-24-02-2020(N)]
The possession of a large quantity of drugs by an accused triggers a statutory presumption of trafficking under the Dangerous Drugs Act, which cannot be rebutted unless evidence proving the contrary is presented.
Headnote:(A) Dangerous Drugs Act, 1952 – Sections 39B(1)(a), 39A(1), 6, 37(da) – Conviction for trafficking in cannabis – Appellant was found guilty of trafficking due to possession of 721.26 grams of cannabis and subsequent possession of 29.83 grams – Evidence of possession invoked statutory presumption of trafficking due to weight exceeding prescribed minimum – Conduct of the appellant deemed relevant to establish knowledge about the drug – Appeal dismissed as no merit found in arguments against conviction. (Paras 2-60)
Facts of the case: The appellant was charged with trafficking after being found with large quantities of cannabis, with the police observing his actions prior to arrest which included attempts to escape and misrepresentation of ownership of the drugs.
Findings of Court: The court established that both the weight of the drugs and the appellant's knowledge constituted a prima facie case of trafficking under the DDA.
Issues: The core issue was whether the presumption of trafficking was properly invoked against the appellant given the evidence of possession.
Ratio Decidendi: The court held that possession with knowledge justified the invocation of the presumption of trafficking under the DDA, reinforcing the principle that the prosecution bears the burden to establish possession as a factual requirement.
Result: Appeal dismissed.
The term "declaration" in the context of criminal law and drug offences generally refers to a formal statement or formalized assertion made by an individual, often in writing, that explicitly states certain facts or intentions. In the context of the provided legal document, a declaration could encompass a formal statement made by the accused or a third party that asserts particular facts relevant to the case, such as ownership, knowledge of the drug, or other relevant circumstances (!) (!) .
However, the document emphasizes that conduct, such as physically handing over a black bag containing drugs, does not constitute a "statement" under the relevant statutory provisions unless it is communicated in a manner that qualifies as a verbal or written communication (!) (!) . The courts have clarified that conduct alone, such as running away or handing over an object, is not regarded as a declaration unless it is explicitly understood as an oral or written assertion conveying specific facts (!) (!) .
Furthermore, the legal principles outlined indicate that a declaration, as a formal statement, must be distinct from conduct and should involve a clear communication of facts, typically in oral or written form, to be admissible as evidence of an assertion or acknowledgment (!) (!) . Conduct, unless it amounts to a statement within the meaning of the law, is generally considered relevant for other purposes, such as establishing knowledge or control, but does not constitute a declaration per se (!) (!) .
In summary, a declaration in this legal context is a formal, communicative statement—either oral or written—that explicitly asserts facts relevant to the case, whereas conduct alone, without such communicative intent, does not qualify as a declaration.
[1] In the High Court of Malaya at Seremban, the appellant was charged with two offences under the Dangerous Drugs Act, 1952 ("the DDA ") and the charges against him were as follows:
First Charge
"Bahawa kamu pada 26 Julai 2017 jam lebih kurang 2300 hrs, bertempat di rumah no 180, Jalan Kemuning 5, Taman Kemuning, Senawang di dalam daerah Seremban, di dalamj,i Negeri Sembilan Darul Khusus, telah didapati mengedar dadah berbahaya iaitu Cannabis seberat 721.26 gram. Dengan itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta yang sama."
Second Charge
"Bahawa kamu pada 26 Julai 2017 jam lebih kurang 2100 hrs, bertempat di tepi jalan Dataran Kemuning 1, Taman Kemuning, 70450 Senawang di dalam daerah Seremban, di dalam Negeri Sembilan Darul Khusus, ada dalam milikan kamu dadah berbahaya iaitu Cannabis seberat 29.83 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah s 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39A(1) Akta yang sama."
[2] He claimed trial to both charges at the conclusion of which he was found guilty of both by Muhammad Jamil Hussin JC (as he then was). For the first charge he was sentenced to death and for the second to 3 years imprisonment with effect from the date of his arrest. His appeal to the Court of Appeal was dismissed.
[3] At the commencement of the hearing before us, learned counsel for the appellant indicated that the appellant was only pursuing his appeal against conviction in respect of the first charge, which is the charge of trafficking under s 39B(1)(a) of the DDA . By abandoning his appeal against conviction in respect of the second charge, the appellant is deemed to accept the High Court's finding that he was in possession of the 29.83 grams of cannabis, the same type of drug that he was charged with in respect of the first charge.
[4] After hearing arguments by the parties on 25 October 2021, we reserved judgment to a date to be fixed. This then is our judgment. The facts are simple and straightforward. At the place and time specified in the second charge, the appellant who was driving a Perodua Myvi with registration plate number CDS 1128 had stopped at the car park. The police raiding party was already at the car park and ready for action, having carried out surveillance in the area for two hours.
[5] When the police party approached the car, the raiding officer Inspector Mohammad Firdaus bin Ashaari (SP6) introduced himself to the appellant by showing his authority card. The appellant's reaction was one of shock and he tried to reverse his car in an attempt to escape. SP6 warned him several times that he would break the car window if he refused to cooperate. The appellant stopped and stepped out of the Myvi. A body search was conducted on him by SP6. It was here that the 3 plastic packets containing the 29.83 grams of cannabis which formed the subject matter of the second charge were found in the right pocket of his trousers.
[6] At about 10.00pm on the same night, SP6 carried out interrogation on the appellant. As a result of the interrogation, the appellant led SP6 to his house at No 180, Jalan Kemuning 5, Taman Kemuning, Senawang. On arrival at the house, the appellant led SP6 and his men to his room on the first floor of the house. As the door was opened, there was a strong smell of cannabis coming from inside the room.
[7] Inside the room, the appellant picked up a "Quick Silver" black bag which was hidden among pieces of cloth and handed it to SP6. Among the items found inside the black bag were the following:
(i) various packages containing vegetable material suspected to be cannabis;
(ii) a copy of a car registration document in the appellant's name;
(iii) an e-pay slip in the appellant's name;
(iv) a Kumpulan Wang Simpanan Pekerja (KWSP) statement in the appellant's name;
(v) a letter of appointment in the appellant's name.
[8] A check on the bed by SP6 found a walle
