ABDULLAH BIN ATAN v PUBLIC PROSECUTOR AND OTHER APPEALS [2020] 6 MLJ 727

Federal Court (Putrajaya)

Presumption of drug trafficking

2.    The High Court convicted three Appellants; Abdullah, Reza, and Hasan, as well as one Respondent; Mahmood, for trafficking dangerous drugs under paragraph 39B(1)(a) of Act 234 and subsequently sentenced them to death.

3.    Reza, Hasan and Mahmood were jointly charged with drug trafficking of 15,821g of methamphetamine, while Abdullah was accused of drug trafficking of 4,213 g of cannabis.

4.    The four Appellants appealed to the Court of Appeal.

5.    The Court of Appeal affirmed the conviction and sentences of Abdullah, Reza and Hasan while Mahmood’s conviction was quashed.

6.    Subsequently, Abdullah, Reza and Hassan appealed their conviction decision to the Federal Court, while the Public Prosecutor appealed against Mahmood’s acquittal.

(a) Facts of the case of Abdullah

(i)    On 15 May 2016, Insp Mohd Nasaruddin (SP4) observed Abdullah on the roadside for about 15 minutes.

(ii)   SP4 approached Abdullah but Abdullah ran away after SP4 introduced himself as a public officer.  SP4 chased and caught Abdullah.

(iii)  SP4 conducted a body search on Abdullah but found no suspicious items.   However, SP4 seized a set of keys from Abdullah.

(iv)  Upon interrogation, Abdullah revealed information that led to the discovery of the drugs at a double-story shop house (the premises).

(v)   SP4 and his team entered the premises using one of the keys.

(vi)      Abdullah then pointed to a locked room after being questioned by SP4. Hence, SP4 unlocked the door using another key from the set taken earlier from Abdullah.

(vii)     SP4 asked Abdullah where he kept the drugs, and then Abdullah showed that the drugs were under a table in the room using his right foot.

(viii)    SP4 found five compressed slabs in a plastic bag, it was confirmed to be cannabis upon analysis by the chemist.

(ix) At the High Court, the Prosecution successfully made a prima facie case against Abdullah.

(x)  By referring to section 27 of Act 56, the judge found that the statement by Abdullah had ‘enabled the 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’.

(xi) The Prosecution had successfully proven the element of drug trafficking under paragraph 37 (da) of Act 234 which shows the presumption regarding the actual possession of the impugned drugs and the drug weight that exceeded the statutory minimum amount under Act 234.

(xii)The learned trial judge ordered Abdullah to enter his defence. Abdullah testified that he did not have knowledge of the drugs and contended that it belonged to one Annie who stayed in the same room with him.

(xiii) Upon evaluating the defence, the trial judge decided that there was no personal documentation of any person named Annie was found in the room, and no item showed the female’s existence in that room.

(xiv)    Thus, the trial judge concluded that Abdullah made up Annie’s presence to free himself from the charge.

(xv) Therefore, Abdullah failed to rebut on a balance of probabilities about the statutory presumption under section 37(da) of Act 234. Hence, Abdullah failed to raise reasonable doubt on the Prosecution’s case and was convicted and sentenced to death.

(xvi)   Abdullah appealed to the Court of Appeal, however, Court of Appeal dismissed the appeal and affirmed the sentence and conviction.

(b) Facts of the case of Reza, Hasan, and Mahmood

(a) Three of them were jointly charged respectively under paragraph 39B (1)(a) of Act 234.

(b) On 6 February 2012, the police conducted surveillance on the house using binoculars, monitoring the individual’s movements, and the vehicles in and out were monitored from the Prima Duta Condo’s water reservoir tank, which is located within 500 meters of the said house.

(c)  Surveillance was also conducted at the guard post’s gate and recorded the movements of the white Proton Persona car (the car).

(d) On 11 February 2012, at 4.50 pm, the car was seen entering the gate and stopping at the said house. A man was seen exiting the car, and another was seen coming out from the house. Both were then seen entering the house.

(e)  ASP Didi Fairuz (SP8) immediately ran to the top floor of the house when he saw three men fleeing the house through the roof.

(f)   SP8 saw a person wearing a white shirt and long jeans, while the other two persons wore shorts and were shirtless.

(g) The Prosecution asserted that the accused persons (the Appellants), were the three men fleeing the house. They were then arrested and brought to the house.

(h)  The police found the boxes of drugs of 15, 821g of methamphetamine together with other evidence in the house. These findings were essential to establish the fact that the house was used to manufacture drugs.

(i)    The trial judge invoked the presumption of drug trafficking based on section 37 (da) of Act 234 which successfully established prima facie of trafficking against the three Appellants.

(j)    Mahmood’s defense was based on identification. He contended that he wore a blue floral shirt, not wearing a white shirt as stated by the Prosecution. He also stated that he worked as a delivery man at 1001 Nights Restaurant & Club and he delivered the food to the house. He further denied fleeing the house through the roof at the time of the arrest.

(k)    On the other hand, Reza and Hasan contended that they had no knowledge of the drugs and stated they went to the house upon invitation of one Mehdi and spent the time drinking until they were arrested.

(l)     The learned trial judge decided the three accused failed to rebut the presumption of trafficking on a balance of probabilities and failed to raise a reasonable doubt on the Prosecution case. Therefore, the High Court convicted and sentenced them to death.

(m)  On appeal, the Court of Appeal quashed Mahmood’s conviction. The Court of Appeal found that there was no evidence that Mahmood resided at the house or that he was at the house during the whole operation.

(n)   It was found that Mahmood had been at the house for eight minutes during the day of the raid and the Court of Appeal held that it is insufficient to establish the custody and control of the impugned drugs.

(o)   For Reza and Hasan’s appeals, the Court of Appeal found that the learned trial judge was correct when His Lordship found that both possessed the impugned drugs.

(p)   The Prosecution adduced the evidence about the DNA profile and fingerprints of Reza and Hasan which placed them on the fourth floor of the house where the drugs were found.

(q)   Thus, the Court of Appeal stated that it can be inferred that Reza and Hasan must have had knowledge of the drugs when they fled from the house to evade arrest.

(a) Subsections 180 (1) and (4) provides that –

“Procedure after conclusion of case for prosecution

(1)  When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused.

………

 (4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.”

2.    Regarding the drugs of cannabis and methamphetamine, based on paragraph 37 (da) (vi), (vii), (viii) and (xvi) of Act 234, it provides that-

“Presumptions

(da) any person who is found in possession of—

(vi)         200 grammes or more in weight of cannabis;

(vii)        200 grammes or more in weight of cannabis resin;

(viii)       a total of 200 grammes or more in weight of cannabis and cannabis resin;

(xvi) 50 grammes or more in weight of Methamphetamine;”

 

3.    In 2006, amendment of section 180 was made by inserting subsection (4) of Act 593. The purpose of this insertion was not to exclude the use of presumptions, inferences, or anything other than direct evidence.

4.    The Federal Court further held that subsection 180 (4) of Act 593 must be read based on its legislative purpose and that the phrase ‘credible evidence proving each ingredient of the offence’ essentially meant that the Prosecution may prove each ingredient of the offence either on three (3) basis:

(a) by adducing credible direct evidence of that ingredient;

(b) by adducing credible circumstantial evidence from which the ingredient can be inferred, or

(c)  by invoking the presumption of law, which means that the Prosecution must adduce credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists

5.    Federal Court also stated that it was important to note that paragraph 37 (da) of Act 234 existed before subsection180(4) of Act 593 was enforced.

6.     Hence, the conflict between Act 234 as the specific law, and Act 593 as the general law; must be resolved in either one of two ways, such as first through the maxim generalia specialibus derogant. Second, it must be resolved through the doctrine of harmonious construction.

7.    The Federal Court decided that the conflict between the two said provisions must be read harmoniously based on the doctrine of harmonious construction.

8.    The Federal Court then simplified the notion that the onus of proof is then shifted to the accused to disprove the presumed fact on the balance of probabilities when a statutory presumption is invoked to presume the existence of the specific fact that relates to the ingredient of said offence.

9.    In conclusion, credible evidence, which is the presumption of trafficking is essential to establish a prima facie case in a finding of actual possession in pursuant to subsection 180(4) of Act 234, together with paragraph 37(da) of Act 593.

In respect of the prosecution’s appeal against Mahmood’s acquittal, the Federal Court held that the element of possession was not proven by the prosecution against Mahmood. As such, the appeal is dismissed and the Federal Court affirmed the order of acquittal and discharge by the Court of Appeal.

2.    Subsection 180(4) of Act 593 must be read together with paragraph 37(da) of Act 234.