DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. 05-40-2002(W)
ANTARA
PENDAKWA RAYA … PERAYU
TAN TATT EEK … RESPONDEN
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. 05-41-2002(W)
ANTARA
TAN TATT EEK … PERAYU
PENDAKWA RAYA … RESPONDEN
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. 05-68-2002(P)
ANTARA
ABDUL
RAHIM BIN KALANDARI
MUSTAN … PERAYU
PENDAKWA
RAYA … RESPONDEN
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. 05-70-2002(P)
ANTARA
PENDAKWA RAYA … PERAYU
ABDUL
RAHIM BIN KALANDARI
MUSTAN … RESPONDEN
CORAM: AHMAD FAIRUZ SHEIKH ABDUL HALIM, KHN
ABDUL
MALEK AHMAD, PMR
HAIDAR
MOHD NOOR, HBM
STEVE
SHIM LIP KIONG, HBSS
SITI
NORMA YAAKOB, HMP
PAJAN
SINGH GILL, HMP
AUGUSTINE
PAUL, HMR
All the four appeals arise as a result of drug trafficking offences under s. 39(B)(1)(a) of the Dangerous Drugs Act 1952 (the Act). The facts pertaining to these appeals have been sufficiently stated in the draft judgments of my brother and sister judges and needs no further elaboration on my part.
The main thrust of these appeals in particular by the Public Prosecutor relates to the construction of s. 37 of the Act in that, whether the presumption of trafficking under s. 37(da) of the Act, can arise out of a presumption of possession under s. 37(d).
The
Federal Court case of Muhammed bin Hassan v PP (1998) 2 MLJ 273
was referred to at length in the said Appeals.
In short, the said case decided that to constitute ‘possession’ under s.
37(da) of the Act, so as to be capable of forming one of the ingredients hereunder
giving rise to the presumption of trafficking, there must be an express
affirmative finding of possession and not a legal presumption of possession as
provided in s. 37(d) of the Act. In
other words, the presumption of possession under s. 37(d) of the Act cannot be
applied to invoke the presumption of trafficking under s. 37(da).
The
learned Deputy urged the Court to revisit the case of Muhammed bin Hassan
v PP (supra) which case established the principle of what is commonly
stated as the “rule against
double presumption”. The learned Deputy argued that the reasons
given in Muhammed bin Hassan v PP (supra) in propounding the
“rule against double presumption” were untenable bearing in mind the true
construction of the wording in s. 37(d) and 37(da) of the Act. It was argued
that Muhammed bin Hassan (supra) wrongly applied the strict
construction rule in construing s. 37 (d) of the Act. It was further submitted that s. 37 of the Act is not a penal
provision, as it does not impose a fine, penalty or forfeiture. In support of his argument the learned
Deputy referred to a passage in
Halsbury’s Laws of England, 4th ed. Vol.44, para 910, which reads –
“A statute must be regarded as penal for purposes of construction if it imposes a fine, penalty or forfeiture, other than a penalty in the nature of liquidated damages, or other penalties which are in the nature of civil remedies.”
It is my view that it is not correct to state that in Muhammed bin Hassan v PP (supra) the Court applied the strict construction rule. Indeed if one looks closely at the judgment, it is clear that the literal rule of construction was applied. This is borne out in the judgment of the Court at page 288 para D –
“Since the literal meanings of the two subsections are intelligible, they must not be extended on the ground that there has been a slip or a matter not provided for which should have been provided for.”
My learned brother Tan Sri Ahmad Fairuz (CJ) in Megat Najmuddin bin Dato’ Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd (2002) 1 MLJ 420 quoted with approval the Indian Supreme Court’s decision in Harilal Ratan v The Sales Tax Officer, section 111, Kanpur AIR 1973 SC 1034 where the Court stated –
“In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that we have to see at the very outset is what does that provision say? If the provision is unambiguous and if from that provision the legislative intent is clear, we need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when, the legislative intent is not clear.”
The learned Deputy further submitted that the intention of parliament was to render the automatic application of s. 37 (da), once s. 37 (d) of the Act had been successfully invoked, as illustrated in previous cases decided by our courts, before the decision in Muhammed bin Hassan v PP (supra). He referred to the speech of the Minister (‘the Hansard’) when tabling the amendment to insert s. 37 (da) and also to s. 17A of the interpretation Act 1967. In addition, he submitted that if it was the intention of Parliament that s. 37 (d) and s. 37 (da) were to be completely exclusive of one another, then the logical step would be to add the presumption of trafficking as the next letter of the alphabet, i.e. as s. 37 (k). He added that the fact that para (da) immediately follows para (d) is further proof of this intention.
With respect, I am unable to find any assistance from the above submissions of the learned Deputy. As to the speeches in Hansard, it only sought to introduce into the Act the provision of a presumption of trafficking which might be invoked upon proof of possession of specific quantities of dangerous drugs, and made no mention of the intention of Parliament regarding the applicability of the double presumption. Furthermore, this issue was dealt with in Muhammed bin Hassan v PP (supra). Section 17A of the Interpretation Act 1967 is a statutory provision for the courts to take a purposive approach in the interpretation of statutes. As decided in Muhammed bin Hassan v PP (supra), the two subsections which the Court was called upon to construe, suffer no ambiguity.
I am in entire agreement with the sentiments expressed in the case of Duport Steels Ltd and Others v Sirs & Ors (1980) 1 WLR 142, wherein Lord Diplock at page 157 held -
“Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to the plain meaning because they themselves consider that the consequences of doing so would be inexpedient or even unjust or immoral …”
As to the intention of Parliament, I agree with the approach taken by this Court in Muhammed bin Hassan v PP (supra). Chong Siew Fai CJ (Sabah & Sarawak) at page 289 said –
“As regards the submission of the learned deputy public prosecutor on the intention of Parliament, the correct approach, in our opinion is to ascertain the meaning of the words employed by Parliament rather than the intention of Parliament. As Lord Reid observed in Black-Clawson International Ltd v Papierwerke Ag (1975) 2 WLR 513 at page 517:
We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.”
Next, the learned Deputy Public Prosecutor submitted that in Muhammed bin Hassan v PP (supra) the Court misdirected itself when it failed to apply correctly the meaning of the word ‘proved’ as found in the Evidence Act 1950.
The relevant section of the Evidence Act 1950 (section 3) provides –
“proved” … a fact is said to be “proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”
And section 4(2) of the Evidence Act 1950 provides that –
“Whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact as proved unless and until it is disproved (emphasis added).”
In short what the learned Deputy was trying to submit was that the effect of s 3 and 4(2) of the Evidence Act 1950 when read together shows that the Court is not concerned with how a fact is proved, i.e. whether by direct evidence or presumption.
However, it is pertinent to note that s. 4(2) of the Evidence Act 1950 only qualifies it to that particular Act, and excludes its application to presumptions other than those found in the Evidence Act 1950.
Furthermore, the Dangerous Drugs Act is a special Act with its own presumptions that has penal consequences whereas the Evidence Act 1950 is a general Evidential Act. In this respect, I agree with the High Court decision in the case of Tun Dato Mustapha bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert & Ors (No.2) (1986) 2 MLJ 420 which construed the words “this Act” appearing in s. 4 to exclude its application to presumptions other than those found in the Evidence Act.
Finally, the learned Deputy argued that the Court in Muhammed bin Hassan v PP (supra) misdirected itself on the construction of the word “found” in s. 37 (da) of the Act. He submitted that the word “found” in the context it is used in the section is the past tense of the word “find”. He then referred to a number of dictionaries, in particular Ballentine’s Law Dictionary (Third Edition) at page 479 where the word “finding” refers to “a judicial statement of a conclusion of law or fact”. Premised on that, he contended that the word “found” in s. 37 (da) refers to both finding in law as well as finding of facts. In other words, it is not restricted to the meaning ascribed to it by this Court in Muhammed bin Hassan that there must be an express affirmative finding (as opposed to legal presumption) of possession as understood in criminal law, based on evidence.
Dato’ Mohd Yusof, the learned Deputy in his argument put forward further submissions in an attempt to persuade this Court to depart from Muhammed bin Hassan v PP. He contended that the Court in Muhammed bin Hassan v PP failed to look at the distinction in the subsequent phrase after the word “found” in s. 37 (d) and s. 37 (da) of the Act. It was suggested that the words “found to have had” and the words “found in possession” denote two different meanings. He contended that the words “found to have had” suggest a factual finding and the words “found in possession” to mean a finding both in law and fact which include presumptions. He then referred to s. 37 (d) and (e) of the Act and argued that the words “found to have had” used therein meant a factual finding, and s. 37 (da), (f) (g) and (h) of the Act where the word “found” is used to mean a finding both in law and fact.
By way of analogy, the learned Deputy referred to the Singapore Act where s. 17 of the Act before amendment read –
“Any person who is proved or presumed
to have had in his possession …”
and the said section after amendment which reads –
“Any person who is proved to have had in his possession … (omitted the word “presumed”).
In other words, the learned Deputy is contending that the words “proved to have had in his possession” suggest a factual finding. On the contrary, if the words “proved to be in possession” were used it would suggest both factual and a finding based on presumption.
In support of his contention he referred to Francis Bennion on statutory interpretation (4th Edition) at page 1055 part xxxviii section 379 “Ejusdem generis principle” Example 379.1 where it is stated –
“The phrase ‘having in possession’, if taken alone, embraces the concept of legal as well as physical possession. When used in an enactment which reads ‘having in possession or conveying in any manner’ (where ‘conveying’ is clearly limited to physical removal) the phrase has by implication a more limited meaning. It must be limited ‘making the one co-extensive with the other, and confirming it to ‘having’ ejusdem generis with ‘conveying’”.
Since the word “found in possession” under s. 37 (da) is not qualified or limited by any subsequent words, it is intended to apply to legal as well as factual possession, argued the learned Senior Deputy Public Prosecutor. However, this argument seems to be considered by the Court in Muhammed bin Hassan v PP (supra). This is what the Court said at page 290 para G when comparing our Act to the Singapore Act –
“And, it is convenient to state here, in answer to the submission of the learned Deputy Public Prosecutor, that, for the purpose of the present issue in question, there is, in our opinion, no material difference between the words ‘proved to have had in … possession’ and the words ‘found in possession’ used in the respective sections of the two Acts. Both necessitate a finding or proof of possession beyond reasonable doubt based on evidence.”
The learned Deputy also submitted that in Muhammed in Hassan v PP (supra) the Court misdirected itself when the Court treated the ‘deeming’ provision in s. 37 (d) as equivalent to the ‘presumption’ provision in s. 37 (da). He contended that there is a distinction between the ‘deeming’ provision and ‘presumption’ provision. He then referred to the New Shorter Oxford English Dictionary and Black’s Law Dictionary (7th Edition) to draw the distinction. ‘Deem’ is when you equate or give effect to, whereas ‘presume’ is when you bring something higher from a stated basic fact. In support he cited a passage in N.S. Bindra’s interpretation of statutes, (8th Edition) (1997) at page 46 under the heading ‘Deeming provisions’ where it is stated –
“Where the legislature says that something should be deemed to have been done which in truth has not been done, it creates a legal fiction and in that case the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.”
Further at page 47 it states –
“When a statute declares that a person or thing shall be deemed to be or shall be treated as something which in reality it is not, it shall have to be treated as so during the entire course of the proceeding.”
Based on the above, he concluded by submitting that s. 37 (d) is a deeming provision whereas s. 37 (da) is a presumption provision. His contention was that when two different words are used in a statute they refer to different interpretations. In this respect, I refer to the case of Majlis Peguam & Anor v Tan Sri Dato’ Mohamed Yusoff bin Muhamed (1997) 2 MLJ 271 where Mohd. Azmi FCJ, referred to the Court of Appeal decision in Lee Cheng v Seow Peng Kwang (1960) l MLJ where Thompson CJ emphasized the distinction between the word ‘jurisdiction’ used in the second schedule of the Courts Ordinance 1948, and ‘power” employed in the Third Schedule and concluded that -
“It is axiomatic that when different words are used in a statute, they refer to different things and this particularly so where the different words are, as here, used repeatedly.”
However, it is obvious that there is a material difference between the word ‘jurisdiction’ and ‘power’ as stated in that case. A Court cannot exercise its powers over which, by reason of their nature or by reason of extra-territoriality, it has no jurisdiction or vice versa. However, the distinction between the word ‘deem’ and ‘presume’ in my view is a very fine one, if at all. As such, I do not think the above case can be used in argument to the present issue before us.
Furthermore, none of the authorities on the interpretation of statues cited to us clearly distinguishes or states that there is a difference between the ‘deeming provision’ and ‘presumption’. Basically, we are urged to assume as such, based on the definition and interpretation given to such a provision. In fact, the title to s. 37 of the Act refers to ‘Presumptions’, and no distinction is drawn in the Act between the word ‘deem’ and ‘presumption’. That being the case, it is clear that the legislature did not draw any difference between the word ‘deem’ and ‘presumption’ as used interchangeably in the Act.
In response to the argument of the learned Deputy, both the learned counsels before us basically urged us not to depart from this Court’s decision in Muhammed bin Hassan v PP (supra) for the reasons stated therein. It was further submitted that the logic and reasoning for interpreting the subsections in the way in which it was done in Muhammed bin Hassan was clear and correct.
Having scrutinized the submissions and
the authorities given to us by both parties, I find myself compelled not to
depart from Muhammed bi Hassan v PP (supra) for a number of
reasons.
Firstly, we should not interpret the intention of Parliament by merely importing words from dictionary meaning. The Hansard which can be used as an aid to interpret the intention of Parliament is of no assistance in the present case.
In his book on principles of Statutory Interpretation (9th Edition) Justice G.P Singh under the heading Dictionaries at page 303 states the following –
“A statute cannot always be construed with the dictionary in one hand and the statute in the other. Regard must also be had to the scheme, context and to the legislative history. In the words of Jeevan Reddy, J in Commissioner of Income Tax Orissa v N.C. Budhraja & Co., (1993) AIR 2529 -
‘A dictionary meaning cannot be adopted if it will make some existing words redundant or will require reading of some additional words’. Dental Council of India v Hari Prakash (2001) AIR SC 3303.”
Secondly, the operation of the presumptions under s. 37 (d) and (da) of the Act in tandem must be express, clear and unequivocal and cannot be exercised by inference, or conjecture particularly in criminal proceedings.
Thirdly, I am mindful of the principle that the Court should not interfere or usurp the functions of the legislature.
Fourthly, I tend to agree with the reasoning in Tunde Apatira & Ors v PP (2001) 1 MLJ 259, that it is a bad policy for the Apex Court to leave the law in a state of uncertainty by departing from our recent decisions.
For the foregoing reasons, I reject the argument to the effect that Muhammed bin Hassan v PP was wrongly decided and ought no longer to be applied.
Finally, on the question of retrospectivity I concur with the views expressed by my learned brother Dato’ Abdul Malek Ahmad (PCA), and my learned sister Dato’ Siti Norma Yaakob (FCJ) in their respective draft judgments.
Dated: 3.2.05 sgd: PAJAN SINGH GILL
Judge
Federal Court Malaysia
Counsel:
Rayuan
Jenayah No. 05-40-2002(W)
For the Appellant: Encik Gurbachan Singh
Solicitors: Tetuan Bachan & Kartar
Peguambela & Peguamcara
31, Jalan Dato’ Maharajalela
30000 Ipoh
For the Respondent: Dato’ Mohd. Yusof bin Zainal Abidin
Jabatan Peguam Negara
Aras 7, Blok C3
Pusat Pentadbiran Kerajaan
Persekutuan
62502 Putrajaya
and
Rayuan
Jenayah No. 05-70-2002(P)
For the Appellant: Encik Karpal Singh
(Encik Gobind Singh Deo with him)
Solicitors: Tetuan Karpal Singh & Company
Peguambela & Peguamcara
No. 67, Jalan Pudu Lama
50200 Kuala Lumpur
For the Respondent: Encik Shamsul bin Sulaiman
Jabatan Peguam Negara
Aras 7, Blok C3
Pusat Pentadbiran Kerajaan
Persekutuan
62502 Putrajaya