Pubdate: Tue, 10 May 2005
Source: New Straits Times (Malaysia)
Copyright: 2005 NST Online
Contact:  http://www.nst.com.my/
Details: http://www.mapinc.org/media/3734
Authors: V. Anbalagan and Aniza Damis
Note: The Malaysian concept of "dadah," a generic term which treats opiates 
and cannabis as though they were identical.
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)
Bookmark: http://www.mapinc.org/heroin.htm (Heroin)

"CHANGE THE LAW"

Brickwall In Drug Trafficking Cases

PUTRAJAYA, Mon: Prosecutors are coming up against a brick wall in drug 
trafficking cases.

Archive Since 1991 In many cases, the suspects they hope to send to the 
gallows are getting away with lighter sentences for the less serious 
offence of possession.

The reason: A Federal Court ruling in February that the prosecution had to 
prove positive and affirmative possession in order to invoke presumption of 
trafficking.

Today, Court of Appeal judge Datuk Abdul Kadir Sulaiman suggested that the 
Attorney-General recommend to the Government that the Dangerous Drugs Act 
1952 be amended. "We are prepared to stand by if the laws are amended," he 
said, noting that the dadah problem was the number one threat in the country.

Every day, there are 58 new drug addicts in Malaysia and the authorities 
are in the midst of trying to cobble together a more effective anti-drug 
strategy.

The judge said the DDA was a man-made law and could be amended to keep up 
with the times.

"There is a brick wall against you and so break it," he said.

Abdul Kadir made this remark when deputy public prosecutor Anna Ng Fui Choo 
was submitting an appeal against a decision of a lower court to reduce a 
dadah trafficking charge to possession.

She said the prosecution would rely on indirect evidence, namely the 
appliances used and empty plastic packets found in a house, to prove that 
car repossessor K. Puvaneswaran was involved in trafficking.

Her submission prompted Abdul Kadir to interject.

Sitting with him were Datuk Ariffin Zakaria and Datuk Nik Hashim Nik Abd 
Rahman.

Attorney-General Tan Sri Abdul Gani Patail said tonight that the Chamber 
was looking at making amendments to the Act after a comprehensive study was 
carried out.

"We don't make piecemeal amendments. This is not a matter of just getting a 
conviction. We don't want easy convictions. We want to get them in a very 
fair manner," he said.

The Chamber was also waiting for a decision on a pending Federal Court case 
before finalising amendments to the DDA.

Puvaneswaran, 30, was charged with trafficking, but trial judge Datuk S. 
Augustine Paul on June 17, 2003, reduced it to possession.

Trafficking carries the death penalty, while the maximum jail term for 
possession is 20 years and the number of strokes is at the discretion of 
the judge.

Puvaneswaran got 10 years jail and 10 strokes of the rotan.

The appeal has been adjourned to Thursday for defence counsel Zainal Ithnin 
to make his submission.

The prosecution of trafficking cases was thrown into doubt after a Federal 
Court, by a 5-1 majority, upheld the rule against double presumption.

In September, the court sat to deliberate the issue following an appeal by 
the prosecution to review a Federal Court ruling in Muhammad Hassan v PP.

In 1998, the court decided that if the prosecution could not prove with 
actual and affirmative evidence that an accused person was in possession of 
drugs, the prosecution could not invoke the presumption that the accused 
was a trafficker.

To do so, the court ruled, would be tantamount to double presumption.

This means that the court must first presume that the accused had 
possession of the drugs, and again presume he was a trafficker.

In another appeal before the same panel, the prosecution failed to convince 
that lorry attendant S. Letchumanan was trafficking 56.2 gm of heroin and 
monoacetylmorphine.

In the unanimous decision, the appellate court allowed the appeal but only 
set aside the trafficking charge and substituted it with possession. 
Letchumanan, 31, was acquitted without his defence being called on April 
17, 2000, by Paul.

The court said the prosecution could only prove custody and control of the 
dadah, but not knowledge.
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MAP posted-by: Jay Bergstrom