Proving Drug Trafficking Offence in Malaysia: An Analysis of the Dangerous Drugs Act 1952 and Case Law

Abstract

Proving a drug trafficking offence under section 39B(1) of the of the Dangerous Drugs Act 1952 (Act 234)(DDA 1952) is a challenging task, mainly because the section does not prescribe its elements, leaving much to judicial interpretation. Based on an analysis of case law, proof of possession is an important element to prove trafficking. There are two (2) ways of proving possession: actual possession (custody, control and knowledge) and presumed possession (custody or control) and knowledge under section 37(d) of the DDA 1952. This research adopted doctrinal legal research involving detailed analysis of the DDA 1952, the Criminal Procedure Code (Act 593)(CPC), the Evidence Act 1950 (Act 56), case law and scholarly writings related to this area. The findings reveal that in several cases not only section 37(d) has been invoked to prove presumed possession but also section 37 (da) of the DDA 1952 to prove presumed trafficking leading to the use of double presumption. Although section 37A of the DDA 1952 was inserted in 2014 to address the application of double presumption, the Federal Court in Alma Nudo Atenza v Public Prosecutor & Another Appeal [2019] 5 CLJ 780 ruled that double presumption was not only rejected but also considered unconstitutional. The research aims to analyse the modes of proving drug trafficking offence under section 39B(1) of the DDA 1952 particularly in terms of the element of possession.