IN THE FEDERAL COURT OF MALAYSIA
AT PUTRAJAYA
(APPELLATE DIVISION)
CRIMINAL APPEAL NO:
05-40-2002(W)
CRIMINAL APPEAL NO: 05-41-2002(W)
CRIMINAL APPEAL NO: 05-68-2002(P)
ABDUL RAHIM BIN KALANDARI MUSTAN …. APPELLANT
AND
PENDAKWA RAYA …. RESPONDENT
CRIMINAL
APPEAL NO: 05-70-2002(P)
BETWEEN
PENDAKWA
RAYA …. APPELLANT
AND
ABDUL RAHIM BIN KALANDARI MUSTAN …. RESPONDENT
CORAM: AHMAD FAIRUZ SHEIKH
ABDUL
HALIM, CJ
ABDUL MALEK AHMAD, PCA
HAIDAR MOHD. NOOR, CJM
STEVE SHIM LIP KIONG, CJSS
SITI NORMA YAAKOB, FCJ
PAJAN SINGH GILL, FCJ
AUGUSTINE
PAUL, JCA
JUDGMENT OF SITI NORMA
YAAKOB,
FCJ
These four appeals arise from the convictions and sentences of two accused persons, Tan Tatt Eek and Abdul Rahim bin Kalandari Mustan, who were separately tried in the High Court at Kuala Lumpur in the case of the former, and in the High Court at Penang, in the case of the latter.
At the court of first instance, Tan was convicted on a single count of trafficking in a mixture of heroin and manoacetylmorphines weighing 74.9 grammes under section 39B(1)(a) of the Dangerous Drugs Act, 1952 (“the Act”) and sentenced to death under section 39B(2) of the Act.
Tan appealed against both his conviction and sentence to the Court of
Appeal which allowed his appeal, quashed his conviction and set aside his sentence but substituted them with a conviction for the offence of possession under section 12(2) of the Act and sentenced him to 15 years imprisonment from the date of his arrest on 11th August, 1997, and 10 strokes of whipping under section 39A(2) of the Act.
The Public Prosecutor appealed against the substituted conviction and sentence imposed by the Court of Appeal, the subject matter of Civil Appeal No.05-40-2002(W). Likewise Tan cross-appealed against the orders of the Court of Appeal and his cross-appeal is the subject matter of Civil Appeal No.05-41-2002(W).
Tan was arrested on the night of 11th August, 1997, at the car park of Campagna Meadow Park Condominium in Happy Gardens, Kuala Lumpur. He was seen driving into the car park in a Blue Proton Kancil accompanied by a lady passenger in the seat next to him. He was seen leaving the car carrying an orange bag in his hand and heading for the lift. Five minutes later he emerged from the lift, still carrying the orange bag. As he was about to enter the car, a team of police officers who had been keeping surveillance over him, confronted him and identified themselves. Tan dropped the plastic bag he was carrying and in it, the police found two packages wrapped in newspaper. The contents of the two packages were analysed later to contain a mixture of heroin and manoacetylmorphines weighing 74.9 grammes. His lady friend was also detained but released subsequently.
Based on those facts, Abdul Wahab Patail, J. made the following findings.
(1) Tan had physical custody and control of the bag.
(2) Tan had knowledge of the contents of the bag and that he knew
the nature of the contents to be dangerous drugs.
(3) From the proved possession and knowledge, the learned Judge
invoked the statutory presumption under section 37(da) to hold that Tan was trafficking in dangerous drugs.
The Court of Appeal only agreed with the first finding of the learned
trial Judge and expressed the Judge’s misconception of the law in the following terms.
“Here there was no factual matrix on which the trial Judge could have inferred that the Accused had knowledge of the nature of the dangerous drugs. All that was proved was that he had control and custody of the bag and the packages of the impure drugs and under s 37(d) the presumption could have been invoked for knowledge of the nature of the drugs”.
This however was not done by the learned trial Judge but instead he invoked the statutory presumption under section 37(da) on the basis of proved possession but since there was no evidence to establish knowledge, the Court of Appeal also held that by invoking the statutory presumption under section 37(da) the learned trial Judge had misdirected himself as he had disregarded the decision of this Court in Mohammed bin Hassan v PP [1998] 2 MLJ 237 that ruled against double presumptions i.e. neither the Prosecutor nor the trial Judge could have relied on the presumptions under
section 37(d) to presume that the accused was trafficking in dangerous drugs under section 37(da)(iiia).
Based on the facts and the law, the Court of Appeal held that the charge of trafficking could not have been sustainable. As only possession had been proved, Tan could only be called upon to rebut the presumption of possession under section 37(d) and since his defence contained no rebuttal, he could only be guilty of the offence of being in possession of the dangerous drug. It was only for that reason that the Court of Appeal substituted his conviction for trafficking to the lesser offence of possession.
At the Penang High Court, Abdul Rahim was also convicted on a single count of trafficking in cannabis weighing 39,105 grammes and sentenced to death under sections 39B(1)(a) and 39B(2) of the Act respectively.
The incriminating cannabis in Abdul Rahim’s case was discovered concealed in a cupboard on the first floor of a house which was raided by the police. At the close of the prosecution’s case, Abdul Hamid Mohamed J. (as he then was) found that on the evidence before him, Abdul Rahim, as the occupier of the premises, had absolute care, management and supervision of the premises and as such had custody and control of the cannabis. The learned trial Judge then invoked not only the deeming provisions of section 37(d) but also ruled that because of the large amount of cannabis found, Abdul Rahim was presumed to be trafficking in the dangerous drug under section 37(da) of the Act. The defence did not seem to have shaken the prosecution’s case and in any event the learned trial Judge found that Abdul Rahim did not rebut the presumption of trafficking and he was accordingly convicted.
Like Tan, he too appealed to the Court of Appeal against both his conviction and sentence. That Court also allowed his appeal, quashed the conviction and set aside the sentence and again substituted them with a conviction for possession under section 6 of the Act and sentenced him to 18 years imprisonment from the date of his arrest on 4th July, 1996, and 10 strokes of whipping under section 39A(2) of the Act. The Court of Appeal’s ruling was founded on the basis that the learned trial Judge made the very error that Mohammed bin Hassan seeks to prohibit i.e. the invoking of the double presumptions under subsections (d) and (da) of section 37 of the Act to arrive at a finding of trafficking. For this very reason the Court of Appeal did not uphold Abdul Rahim’s conviction on the charge of trafficking.
Likewise both Abdul Rahim and the Public Prosecutor appealed against the orders of the Court of Appeal and the subject matter of the former’s appeal is Criminal Appeal No.05-68-2002(P) whilst the latter’s cross-appeal is Criminal Appeal No: 05-70-2002(P).
Before us, all the parties agree to have a common issue of law argued
and that relates to whether the Public Prosecutor can invoke the statutory
presumptions of subsections (d) and (da) of section 37 of the Act and apply them in conjunction with one another thereby overturning the principle against double presumptions as laid down in Mohammed bin Hassan v PP. supra.
Before dealing with this issue of law, I need to mention that Mr. Gubarchand Singh, Counsel for Tan, withdrew his cross-appeal and we accordingly struck out Criminal Appeal No.05-41-2002(W). Mr. Karpal Singh, Counsel for Abdul Rahim, then applied to file his Memorandum of
Appeal out of time and since there was no objection from Encik Shamsul Sulaiman, the Deputy Public Prosecutor, we had allowed his notice of motion to do so.
As the purpose of the proceedings before us is to revisit and review Mohammed bin Hassan, our attention was drawn to the fact that the same exercise had already been undertaken by a three member panel of this Court in Dulip Bhagwan Singh v PP [1998] 1 MLJ 1 and by a five member panel in Tunde Apatira & Ors. v PP [2001] 1 MLJ 259. As such there is no justification for another revisit.
In Dulip Bhagwan Singh, one of the issues raised was on the question of judicial precedent, the need to adhere to the latest decision of this Court on a point of law particularly when a conflict arises from two separate decisions of this Court. This issue, we consider, does not fall within the issue of law that the Public Prosecutor intends to raise in the present proceedings before us and as such cannot form the basis of denying him the right to be heard.
In Tunde Apatira, all the three appellants were convicted for trafficking in drugs and the main complaint was that the trial Judge had invoked the statutory presumptions under subsections (d) and (da) of section 37 to convict them of trafficking, a finding that was confirmed by the Court of Appeal. This Court held that even without the aid of section 37(d), possession was never an issue in that case as there was overwhelming evidence of actual possession as the accused had swallowed the dangerous drug but what was in issue was whether the drug swallowed was gold dust or heroin.
That said, there appears to be no basis to disallow the Public Prosecutor from submitting that the principles of law enunciated in Muhammed bin Hassan disallowing the automatic application of the statutory presumptions in section 37(d) and (da) can no longer be regarded as good law.
Subsections (d) and the relevant parts of (da) of section 37 of the Act insofar as they are relevant to the facts in Tan’s and Abdul Rahim’s cases contain the following provisions.
“37. In all proceedings under this Act or any regulation made
thereunder –
(d) any person who is found
to have had in custody or under his control anything whatsoever containing any
dangerous drug, shall until the contrary is proved, be deemed to have been in
possession of such drug and shall, until
the contrary is proved, be deemed to have known the nature of such drug;
(da) any person who is found in possession of –
(iiia) a total of 15 grammes or more in weight of
heroin, morphine and manoacetylmorphines or a total of 15 grammes or more in
weight of any two of the said dangerous drugs;
(vi)
200 grammes or
more in weight of cannabis;
otherwise than in
accordance with the authority of this Act or any other
written law, shall be
presumed, until the contrary is proved, to be
trafficking in the said
drug.”
Muhammed bin Hassan had interpreted those provisions in the
following manner.
(1) “…. both sub-ss (d) and (da) of s 37 of the Act, being penal
provisions must be strictly construed and must not be extended beyond their
clear meaning.
(2)
The wordings ………… are clear and unequivocal.
……and
their
meanings, must be determined from the language employed and the two subsections
must be taken to mean exactly what they
respectively say.
(3)
….
there is a clear undeniable distinction between the word
‘deemed’ used in
s 37(d) and the
word ‘found’ employed in
s 37(da) of
the Act. The ‘deemed’ state of affairs
in s 37(d) (i.e. deemed possession and deemed knowledge) is by operation of law
and there is no necessity to prove how that particular state of affairs is
arrived at. There need only to be
established the basic or primary facts necessary to give rise to that state of
affairs, i.e. the finding of custody or control. Such presumptions as under s 37(d) (and, for that matter, the one
under s 37(da)) are sometimes described as ‘compelling presumptions’ in that
upon proof of certain facts by a party (in our present case, proof custody or
control in s 37(d) by the prosecution), the court must in law draw a
presumption in its favour (i.e. presumptions of possession and knowledge)
unless the other party proves the contrary.
Such a presumption has the compelling force of law. It is a deduction which the law requires the
trial court to make. On the other hand, the word ‘found’ in the opening phrase
of s 37(da) connotes a finding after a trial by the court.
(4)
To come to the presumptions of possession and knowledge under
s 37(d),
one need only to arrive at a finding of having had ‘in custody or under ….
control anything whatsoever containing’ the drug (as opposed to the drug
itself) whereas to arrive at the presumption of ‘trafficking’ under s 37(da), a
finding of being ‘in possession’ of the drug is necessary (in addition, of
course, to proof of the relevant minimum quantity specified).
(5) In view of the above differences, it would be unduly harsh and
oppressive to confine the automatic application of presumption upon presumption
– a construction that ought to be adopted only if upon the wordings of the two
subsections, such an intention of Parliament is clear, which, ……. is not.
(6)
…. to constitute possession under s
37(da) of the Act, so as to be
capable of
forming one of the ingredients thereunder thereby giving rise to the
presumption of trafficking, there must be an express affirmative finding (as
opposed to legal presumption) of possession as understood in criminal law,
based on evidence.”
There is now a direct attack on the interpretations of the two subsections to show that Muhammed bin Hassan had been wrongly decided based on the grounds that the Court had misdirected itself,
(1) when it applied the strict construction rule when construing the
two subsections,
(2) when it declared that the intention of Parliament was that the two subsections may not be invoked and applied in conjunction
with one another,
(3) when it applied the general law of evidence in construing the
two subsections, and
(4) when it gave an unacceptable meaning to the word ‘found’ used in section 37(da).
The Prosecution relies on the definition of a penal statute as expressed by Halsbury’s Laws of England, 4th Edition, Vol.44 page 909, to show that the Court’s interpretation of the provisions of the two subsections to be penal in nature is wrong in law and consequently its finding that the subsections have to be strictly construed is also flawed.
Halsbury regards a statute 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.”
Halsbury’s definition seems to look at the broader picture of a statute as opposed to any particular provision in such a statute. Clearly the two subsections, per se, can hardly be considered as penal in nature as the language used connotes the recognition of evidence for the statutory presumptions to arise, and as such, the inclusion of any provision for any penalty to be imposed, does not arise. However when viewed in the broader sense that the two subsections form part and parcel of the Act, which contain provisions like sections 6, 10, 12(3), 39A(1) and (2) and 39B(2), which prescribe the appropriate penalties for particular offences, the two subsections are brought within the confines of a statute which is penal in nature. No doubt the two subsections are special provisions relating to the creation of rebuttal presumptions which are of evidential value in trials of offences prescribed under the Act but viewed in the broader sense that they form part of a penal statute, I see nothing objectionable to the two subsections being construed strictly and must not be extended beyond their clear meaning.
What in law is their clear meaning?
To answer this question, it is necessary to consider certain aspects of the Act, namely Parliament’s intention or purpose in incorporating the two subsections into the Act, the nature of the expressed wordings of the two subsections and the proper interpretations to be given to them.
The provisions of subsection (d) had their origin since the passing of the Act itself, unlike those of subsection (da) which were incorporated into the Act and enforced as law on 15th November 1977, by way of amendment through Act A 390.
Since subsection (da) follows immediately after subsection(d), this has prompted the Prosecution to advance the argument that Parliament must have intended the two subsections to be applied in tandem and not separately or individually for if that was indeed intended, the provisions of subsection (da) would be inserted after subsection (j) of the same section as subsection (k).
I do not consider that the intention of Parliament can be ascertained in the order in which amendments are incorporated into an act. It must be remembered that section 37 deals principally with provisions relating to presumption of law, the creation of which depends on the varying circumstances as stated in subsections (a) to (d), (da) and (e) to (j). The fact that the provisions of subsection (da) follow immediately after subsection (d) may well be attributed to convenience and the art of drafting and I am not prepared to consider any other reason beyond that. Short of Parliament stating that both subsections are to be read conjunctively in clear and uncertain terms, it is not proper to assume that intention in the manner as propounded by the Prosecution.
In essence, the presumption under section 37(d) works as follows. Once it is proved that a person has control and custody of a dangerous drug, he is deemed not only to be in possession of the drug but is also deemed to have knowledge of the nature of the drug until the contrary is proved. As such, without the evidence of custody or control, the rebuttable presumption of possession and knowledge cannot arise.
On the other hand subsection (da) provides that once there is a finding of possession of a prescribed drug, the weight of which falls within the quantity specified in the various paragraphs of the subsection and that such possession is not in accordance with the authority of the Act or any other written law, the presumption of trafficking arises, until the contrary is proved.
For practical purposes, in trials for offences under sections 6 and 12(2) of the Act, all that the Prosecution need do to invoke the rebuttable presumptions under subsection (d) is to produce credible evidence, direct or circumstantial, to establish that there is custody or control of the dangerous drug on the part of the accused person.
However to invoke the presumption of trafficking under subsection (da) in order to establish a prima facie case of trafficking under section 39B(1) of the Act at the close of the prosecution case, all that needs to be introduced at the trial is sufficient evidence to establish:
(1) possession of the drug by the accused person, as understood in
criminal law.
(2) the weight of the drug to bring it within the relevant minimum quantity specified by law,
(3) lack of authority on the part of the accused person.
Clearly there is a distinct difference in the wording and meanings of
the two subsections, and I say, it is this difference that
rule against the Prosecution’s contention that the finding of deemed possession
under subsection (d) can be read into subsection (da) as proved possession, to
trigger the presumption of trafficking.
In any event there are no clear words or expression in the Act to arrive
at the conclusion that Parliament intended that trafficking can be presumed by
the joint operation of the presumptions in the two subsections. Reference to speeches outlining the
intention and purpose of incorporating subsection (da) into the Act and its
operation when the bill to introduce it was debated in Parliament, cannot fill
the gap caused by the absence of such expressed intention as the correct
approach “is to ascertain the meaning of the words employed by Parliament
rather than the intention of Parliament”, per Chong Siew Fai, CJSS in
Mohammed bin Hassan.
It is therefore my considered opinion that there are no compelling reasons to overrule the principles of law enunciated in Mohammed bin Hassan as those principles have been correctly decided.
Finally I come to the closing submission as to whether the ruling against double presumptions has retrospective effect on cases decided before
Mohammed bin Hassan. This is so as the conviction for trafficking against Abdul Rahim
was recorded on 23rd September, 1997, before Mohammed bin
Hassan, although the Court of Appeal’s decision substituting the
conviction adopted the rule against double presumptions as the appeal was heard
after Mohammed bin Hassan.
The time honoured principle of law as regards judicial precedent and the need to adhere to the latest decisions of the highest court in the land, is the basis on which certainty in the law is achieved and upon which individuals can rely to conduct their affairs. It is with these guidelines or principles in mind that rulings from this Court, particularly when it decides to resolve conflicts arising from separate decisions on points of law, are never intended to be interpreted retrospectively so as to prevent the danger
of uncertainty or disturb the basis on which contracts and fiscal arrangements had been entered into. Perhaps the only exception can be found in situations like that experienced by Abdul Rahim when he was convicted for trafficking at a time when the rule against double presumptions had not been decided to be oppressive, but following his appeal to the Court of Appeal, the rule had worked towards his advantage. As such, restrospectivity can only operate in pending cases but not where cases have been decided to their finality.
Sgd.
DATED:
3 FEBRUARY, 2005 (SITI NORMA YAAKOB )
JUDGE
FEDERAL COURT MALAYSIA
PUTRAJAYA
Counsel:
05-40-2002(W)
Dato Mohd Yusof bin Zainal Abiden, Senior Deputy Public Prosecutor for
Appellant
(Attorney General’s Chambers)
Gurbachan Singh (Kartar Singh and Amrit Pal Singh with him) for Respondent.
(Solicitors: Messrs. Bachan & Kartar)
05-68-2002(P) and 05-70-2002(P)
Karpal Singh (Jagdeep Singh Deo with him) for Appellant and Respondent in Cross-Appeal
(Solicitors: Messrs. Karpal Singh & Co.)
Shamsul Sulaiman, Deputy Public Prosecutor for Respondent and Appellant in Cross-Appeal
(Attorney General’s Chambers)