Dangerous Drugs Act 1952 – Double presumption – Trafficking in dangerous drugs – Federal Constitution – Liberty of the person – Equality – Constitutional validity of section 37A of DDA, with reference to Articles 5, and 8 of the Federal Constitution

Alma Nudo Atenza & Orathai Prommatat v Public Prosecutor
Criminal Appeal No: 05-94-05/2017(B), Federal Court

- see the grounds of judgment here

Facts The first Appellant, a national of the Republic of the Philippines, and the second appellant, a Thai national, were charged before and convicted by two different trial Judges for drug trafficking under section 39B[1] of the Dangerous Drugs Act 1952 (“DDA”). Since both appeals were premised on one common and crucial issue, these two appeals were heard together in the Federal Court. Both Appellants were reprimanded at the airport travelling to Malaysia at two separate occasions. The High Court observed that section 37A[2] of the DDA would allow the use of double presumptions, namely, the presumptions under subsections 37(d)[3] and (da)[4] could be used together to prove “possession and knowledge” and thereafter to prove “trafficking” and thus found both appellants guilty as charged and were sentenced to death. Aggrieved, both parties appealed to the Court of Appeal but were dismissed. Hence, this appeal. 

Issue The common and central issue in the present appeals is on the constitutional validity of section 37A of DDA, with reference to Articles 5
[5], and 8[6] of the Federal Constitution (“FC”).

Held In allowing the appeal, the Federal Court held that section 37A of DDA is unconstitutional for violating Article 5(1)
[7] read with Article 8(1)[8] of the FC. The Federal Court found that the unacceptably severe incursion into the right of the accused under Article 5(1) is disproportionate to the aim of curbing crime, hence fails to satisfy the requirement of proportionality housed under Article 8(1).

[1] Trafficking in dangerous drugs
[2] Application of presumptions
[3] “any person who is found to have had in his 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”
[4]“any person who is found in possession of…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””
[5] Liberty of the person
[6] Equality
[7]  No person shall be deprived of his life or personal liberty save in accordance with law
[8] All persons are equal before the law and entitled to the equal protection of the law