The Law on Drug Trafficking Offences

In 2019, Amnesty International reported that of the 1,281 prisoners held on death row in Malaysia, 73% were convicted of drug trafficking under section 39B of the Dangerous Drugs Act 1952 ("DDA"). An average of 5,938.2 people have been arrested each year for the same offence between 2014-2018. Drug trafficking offences therefore feature relatively prominently in Malaysia's criminal justice system.

Against this background, the importance of having a basic understanding of the law on drug trafficking offences cannot be understated. This article breaks down the elements of the offence, the different routes by which this may be proved by the Public Prosecutor and provides a brief summary of the controversial history of the use of double presumptions to secure convictions.

The Elements of the Offence

Section 39B of the DDA criminalizes trafficking, offering to traffic or doing or offering to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

A "dangerous drug" refers to any of the drugs listed in the First Schedule of the DDA, which includes but is not limited to cannabis, amphetamine, methamphetamine, cocaine, heroine and ketamine.

Section 2 of the DDA provides a list of acts which would amount to "trafficking".

("... manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug" absent the authority of the DDA or any Regulations made thereunder)

With the exception of the act of manufacturing (see Chan Wei Loon v Public Prosecutor [2018] 6 MLJ 476), every other act constituting "trafficking" involves the further sub-element of "possession" (see Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64). The Privy Council in Ong Ah Chuan clearly stipulated that the purpose for which the dangerous drug was moved must have been to "transfer possession". One must first be in possession of a thing in order to be able to transfer possession of that thing. A person thus cannot be convicted of drug trafficking (with the exception of manufacturing) absent proof (direct or presumed) of possession.

It is almost universally accepted that "possession" involves the characteristics of "custody and control". His Lordship Brown AG CJ in Ho Seng Seng v Rex [1951] MLJ 225 held:-

"... possession, in order to incriminate a person, must have the following characteristics: (a) the possessor must know the nature of the thing possessed; (b) he must have power of disposal over it; and (c) he must be conscious of his possession of the thing. I think that the term "custody" contains characteristic (c) and that "control" contains characteristic (b) and (c)..."

"Knowledge of the nature of the thing" refers to the knowledge that the thing is a dangerous drug. There is high judicial authority in support of the proposition that the person need not know which specific dangerous drug was in his physical custody and control. For instance, if X kept methamphetamine in his bag thinking this was heroine, his mistake would not negate the fact that he had "knowledge of the nature of the thing" as both drugs are classified as dangerous drugs under the DDA.

By contrast, X cannot be said to have known the nature of the thing if he had methamphetamine in his bag thinking this was instead talcum powder. Since talcum power is not a dangerous drug, this mistake would negate the contention that X knew the nature of the thing in his physical custody and control, i.e., that it was actually a dangerous drug.

A distinction must be made between knowledge of the nature of the thing and knowledge of the existence of the thing. The latter is a base condition of the former. A person cannot be said to have known the nature of the thing if he did not even know it was there. Lord Reid best exemplified the importance of this distinction in the locus classicus case of Warner v Metropolitan Police Commission [1969] 2 AC 256 when His Lordship held:-

"With regard to possession Lord Parker CJ said, at p. 248:

'In my judgment it is quite clear that a person cannot be said to be in possession of some article which he or she does not realize is, for example, in her handbag, in her room, or in some other place over which she has control. That I should have thought is elementary: if something were slipped into your basket and you had not the vaguest notion it was there at all, you could not possibly be said to be in possession of it.'

I entirely agree. But that destroys any contention that mere physical custody and control without any mental element is sufficient to constitute possession under that enactment."

This principle has been adopted by the Courts in Leow Nghee Lim v Reg [1956] 22 MLJ 28, Nik Asmawi Nik Daud v Public Prosecutor [2010] 5 MLJ 652, Ling Haw Cheun v Public Prosecutor [2015] 5 MLJ 164 and Ho Seng Seng.

As rightly pointed out by the Court in Ho Seng Seng, knowledge of the existence of the thing is a characteristic of custody and control, whereas knowledge of the nature of the thing is a characteristic of the wider element of possession.

There exists some debate, based on the language of subsection 37(d) of the DDA, whether knowledge of the nature of the thing ought to be viewed as being a constituent element of "possession" or "trafficking". These arguments are too extensive to be included here. On the authority of the Court in Ho Seng Seng, this article will proceed on the basis of the former.

In sum, it is safe to conclude (subject to exceptions) that a person can be said to have trafficked a dangerous drug where that drug was in his possession for the purpose of transferring possession of that drug to another person. "Possession" is constituted of (i) custody and control (which necessarily requires knowledge of the existence of the thing and the power to dispose of the thing) and (ii) knowledge of the nature of the thing.

Proving the Offence

There are three ways by which the Public Prosecutor may prove the offence of drug trafficking:-

1. Direct trafficking ("the 1st Route");
2. Presumed Possession ("the 2nd Route"); or
3. Presumed Trafficking ("the 3rd Route").

Before delving into the mechanism of these various routes, it is apposite to first understand the nature of statutory presumptions.

Ordinarily, the Public Prosecutor must adduce direct or circumstantial evidence which can enable the Court to conclude that all of the elements of the offence are proved beyond a reasonable doubt. Failure to prove any one element of an offence vide the production of evidence will generally result in an acquittal.

A notable exception exists with respect to statutory presumptions. A statutory presumption is a mechanism which allows or requires the Court to presume a fact or legal conclusion where a base condition is satisfied. For instance, a statutory provision which states that upon proof of X and Y, Z shall be presumed until the contrary is proved is a statutory presumption. Statutory presumptions are legal fictions created as an aid to proof. The term "legal fiction" is an accurate description as the fact presumed by a statutory presumption may not actually exist, but the Courts are to proceed as though it not only exists but is proved to the requisite standard.

The 2nd Route and the 3rd Route employ the use of statutory presumptions.

Direct Trafficking

The Public Prosecutor may elect to prove the offence of drug trafficking vide the 1st Route. This requires proof by way of direct or circumstantial evidence of all of the elements of the offence.

Whenever employed, The Public Prosecutor must prove beyond a reasonable doubt the fact that the accused was in possession of a thing, that thing was a dangerous drug, that he did any of the acts prescribed by section 2 of the DDA and that that act was done for the purpose of transferring possession to another (unless the accused was charged for "manufacturing").

Under this route, it is only when all of these elements are proved to the requisite standard can an accused be convicted of the offence of trafficking in dangerous drugs under section 39B of the DDA.

Presumed Possession

Section 37(d) of the DDA is a statutory presumption which enables the Court to presume that the accused was in possession of the impugned dangerous drug and that he knew the nature of the dangerous drug (which, as stated above, is in actuality an element of possession).

In order to trigger the operation of this presumption, the Public Prosecutor must prove by way of direct or circumstantial evidence that the accused had in his custody and control a dangerous drug. Meaning, where the Public Prosecutor can prove that the accused had knowledge of the existence of dangerous drugs in his physical custody and control and that he had the power to dispose of the same (i.e., the characteristics of custody and control), then the Public Prosecutor need not prove the last feature of possession, namely, that the accused had knowledge of the nature of the dangerous drug. Possession will be presumed even if this was not proved.

Once possession is presumed, the Public Prosecutor must then adduce direct or circumstantial evidence to prove the other elements of trafficking under section 2 of the DDA in order to secure a conviction (see Alma Nudo Atenza v Public Prosecutor [2019] 4 MLJ 1) under section 39B of the DDA.

Presumed Trafficking

Section 37(da) of the DDA, on the other hand, is a statutory presumption which enables the Court to presume that any person with dangerous drugs in his possession was trafficking those dangerous drugs.

In order to trigger the operation of this presumption, the Public Prosecutor must prove by way of direct or circumstantial evidence (see Alma Nudo Atenza) that the accused was in possession of a dangerous drug and that the weight of the dangerous drug in his possession exceeded the weight limit prescribed by the subsection.

Only where these base conditions are satisfied can an accused person be presumed to have trafficked in dangerous drugs.

Thus, if the Public Prosecutor proves that a person had in his possession 250 grammes of cannabis (the prescribed limit being 200 grammes for this dangerous drug), then that person shall be presumed to have been trafficking that cannabis if the Public Prosecutor elects to prove its case vide the 3rd Route.

The Double Presumption

More than two decades ago, the Court in Muhammad Hassan v Public Prosecutor [1998] 2 CLJ 170 ruled that the use of double presumptions was unconstitutional. This referred to the practice whereby the Public Prosecutor would rely on both the presumptions under subsections 37(d) and (da) in order to secure a conviction for drug trafficking. As a direct result of this practice, the Public Prosecutor only needed to adduce evidence to prove custody and control. This was sufficient to trigger the presumption of possession, which would then, combined with evidence of weight, be relied upon to trigger the presumption of trafficking.

In order to circumvent the effect of the decision of this Court, Parliament introduced by way of amendment section 37A of the DDA, which made clear that the use of double presumptions would be permissible "notwithstanding anything under any written law or rule of law".

Hundreds of people were then convicted of trafficking only on proof of custody and control and weight, an injustice rightly drawing criticism and public outcry.

Fortunately, in 2019 the Federal Court in Alma Nudo Atenza directly addressed its mind to the use of double presumptions under section 37A of the DDA and conclusively ruled that its use is unconstitutional. Consequently, the law as it stands today is the same as that which was decided by the Court in Muhammad Hassan. If the Public Prosecutor seeks to employ the use of statutory presumptions, it must elect to use either subsection 37(d) or subsection 37(da). It cannot rely on both.

Put another way, the base condition of "possession" under subsection 37(da) can no longer be presumed and must be proved by direct or circumstantial evidence.

Conclusion

This article demonstrates that the law on drug trafficking is relatively concept-heavy and technical. Breaking down the elements of the offence to its constituent parts is key to having a basic understanding of this area of law.

(originally published in www.tkfuad.com)