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2020 MarsdenLR 1411
FEDERAL COURT MALAYSIA PUTRAJAYA
ABDULLAH ATAN – Appellant
Versus
PP & OTHER APPEALS – Respondent
[Criminal Appeal Nos: 05(M)-56-02-2019(J) 05(M)-205-09-2018(W) 05(M)-206-09-2018(W) & 05(LB)-207-09-2018(W)]
Statutory presumptions can be used to establish a prima facie case for drug trafficking when supported by credible evidence of possession under the Dangerous Drugs Act 1952.
Headnote:(A) Dangerous Drugs Act 1952 – Section 39B and Section 37(da) – Criminal Procedure Code – Section 180(4) – Charges of drug trafficking – Court examined if statutory presumption under 37(da) could establish a prima facie case under CPC Section 180(4) – The court held that while statutory presumptions are not evidence, they may be relied upon for establishing a prima facie case, provided credible evidence of the basic facts is presented (Paras 26, 31, 32, 60, 62). (B) Courts affirmed the legal interpretation that a prima facie case can be established through credible evidence and may include statutory presumptions assisting the prosecution (Paras 26, 32, 62). (C) Convictions of Abdullah, Reza, and Hasan were upheld; Mahmood was acquitted due to insufficient evidence of possession and control over drugs (Paras 75, 71).
Facts of the case: Four appeals under drug trafficking charges where convictions were challenged based on the application of statutory presumption and the sufficiency of evidence against the accused parties (Paras 1-4, 16-75).
Findings of Court: The Court found convictions of Abdullah, Reza, and Hasan safe while agreeing with the acquittal of Mahmood due to non-proven possession of the drugs in question (Paras 75).
Issues: The main legal question was whether statutory presumptions could be regarded as credible evidence to establish a prima facie case in drug trafficking charges (Paras 26, 27).
Ratio Decidendi: The Court concluded that statutory presumptions, if supported by credible evidence of possession, can indeed help establish a prima facie case of drug trafficking, emphasizing the need for balance in statutory interpretation (Paras 26, 60).
Result: Appeals by Abdullah, Reza, and Hasan dismissed; Mahmood's acquittal affirmed.
Introduction
[1] The following four appeals:
(i) 05(M)-56-02-2019(J) between Abdullah Atan ("Abdullah") and the Public Prosecutor;
(ii) 05(M)-205-09-2018(W) between Mohamad Reza Ghaem Panah Nezamali ("Reza") and the Public Prosecutor;
(iii) 05(M)-206-09-2018(W) between Hasan Javadipirouz Avazali ("Hasan") and the Public Prosecutor; and
(iv) 05(LB)-207-09-2018(W) between the Public Prosecutor and Mahmood Yary Mohammad ("Mahmood"),
were heard together as they raised a common point of law, ie whether, in the trial of a charge for drug trafficking under s 39B of the Dangerous Drugs Act 1952 ("the DDA "), the presumption of trafficking in s 37(da) of the constitutes credible evidence for the prosecution to make out a prima facie case under s 180(4) of the Criminal Procedure Code ("the CPC ").
[2] Abdullah was convicted by the High Court at Johor Bahru while Mahmood, Reza and Hasan were convicted by the High Court at Kuala Lumpur, for the offence of trafficking in dangerous drugs. They were sentenced to death under s 39B of the DDA .
[3] Aggrieved by the decision of the High Court, they appealed to the Court of Appeal. The Court of Appeal dismissed the appeals by Abdullah, Reza and Hasan but allowed the appeal by Mahmood. Hence the appeals before us by Abdullah, Reza and Hasan against the decision of the Court of Appeal affirming their convictions and sentence, and by the Public Prosecutor against the acquittal and discharge of Mahmood.
Background Facts
Appeal No 56 (Abdullah's Case)
[4] The charge against Abdullah reads:
"Bahawa kamu pada 15 Mei 2016 jam lebih kurang 04.45 petang, di bilik sewa Nombor 16-01, Jalan Permas 4/4, Bandar Baru Permas Jaya, dalam Daerah Johor Bahru, dalam Negeri Johor, telah didapati mengedar dadah berbahaya jenis Cannabis seberat bersih 4,213 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952, dan boleh dihukum di bawah s 39B(2) Akta yang sama."
[5] Briefly, the narrative of the prosecution's case is as follows. On 15 May 2016, Insp Mohd Nasaruddin bin Adnan ("SP4") and his team were on duty at the Permas Jaya area, where SP4 saw Abdullah standing by the road side. After observing Abdullah for about 15 minutes, SP4 approached Abdullah. SP4 introduced himself as a police officer. Abdullah immediately took flight. SP4 gave chase and Abdullah was apprehended.
[6] A body search was conducted on Abdullah. Nothing incriminating was found. Abdullah had a set of keys which were seized by SP4.
[7] It was the prosecution's case that upon interrogation, Abdullah disclosed information that led to the discovery of the impugned drugs at No 16-01, Jalan Permas 4/4, Permas Jaya, Johor Bahru ("the premises"), a double-storey shophouse. SP4 and his men gained entry to the premises using one of the keys seized from Abdullah. According to SP4, upon further questioning, Abdullah pointed to a room. The room was locked and using another key from the set seized earlier, SP4 unlocked the door. Upon gaining access, SP4 asked Abdullah where he kept the drugs. Using his right foot, Abdullah indicated that the drugs were under a table in the room.
[8] SP4 recovered an orange plastic bag wherein there were five compressed slabs. On analysis by the chemist, the drugs were confirmed to be Cannabis, the subject matter of the charge.
[9] The learned trial judge found that the prosecution had made out a prima facie case against Abdullah. Pursuant to s 27 of the Evidence Act 1950, the learned judge admitted the information given by Abdullah, upon which the drugs were found. His Lordship found that the statement under s 27 "enabled knowledge of the existence and the whereabouts of the drugs and its nature to be attributed to the accused. As the accused had such knowledge, the mental element required to establish possession was therefore present".
[10] Having found that Abdullah had actual possession of the impugned drugs, and given the weight of the drugs which exceede
