PUTRAJAYA, July 15 — The Federal Court seven-member bench has deferred its decision to August 26 to decide appeals in drug trafficking cases involving three Iranians and a construction worker.
Chief Justice Tan Sri Tengku Maimun Tuan Mat who chaired the bench set the decision date after hearing submissions from parties in the appeals.
Presiding with her on the bench were Court of Appeal President Datuk Rohana Yusuf, Chief Judge of Malaya Tan Sri Azahar Mohamed and Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Abdul Rahman Sebli, Datuk Hasnah Mohammed Hashim and Datuk Mary Lim Thiam Suan.
The appeals were brought by Abdullah Atan, and Iranians Mohammad Reza Ghaem Panah Nezamali, Hasan Javadipirouz Avazali against their conviction and death sentence for drug trafficking while the prosecution is appealing against the acquittal of Mahmood Yary Mohammad.
Lawyer Hisyam Teh Poh Teik appearing for Abdullah argued that the conviction of his client must be quashed and he should be acquitted and discharged as the High Court judge did not comply with Section 180 (4) of the Criminal Procedure Code (CPC).
He said the section stated that a prima facie case is made out against the accused where the prosecution had adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.
The lawyer said the trial judge found there was prima facie case of trafficking based on the finding of actual possession and invoking the presumption of trafficking under Section 37 (da) of the Dangerous Drug Act 1952 (DDA).
“The judge’s reliance on the presumption under section 37 (da) of the Act is in breach of section 180 (4) of the CPC as statutory presumption cannot amount to ‘evidence’,” he said.
Hisyam said a prima facie case can only be found based on credible evidence, and statutory presumptions, in law, cannot be regarded as evidence.
He said the trial judge erred when he relied on the statutory presumption to find that the ingredient of trafficking had been proven at the close of the prosecution’s case.
Hisyam said presumption is only a special mode of proving facts which must be proved by evidence.
Section 37 (da) of the DDA states that any person who is found in possession of 200gm of ganja shall be presumed to be trafficking in the drugs.
Deputy public prosecutor Datuk Mohd Dusuki Mokhtar said presumption under Section 37 (da) can be invoked by the prosecution to prove prima facie in drug trafficking cases.
He said the High Court invoked the presumption based on credible evidence by the chemist, adding that the chemist’s evidence was credible to support the presumption under section 37 (da) of the DDA.
Mohd Dusuki said section 37 (da) of the DDA is a specific legal provision that the prosecution can invoke while the procedure under section 180 (4) of the CPC concerns with the burden of proof which is used as a general guide to prove a case.
Hasan Javadipirouz’s counsel Kitson Foong adopted the submissions made by Hisyam on section 180 (4) CPC. However, he further argued the High Court and Court of Appeal were wrong in finding his client for possession of the drug.
Abdullah was found guilty by the High Court and sentenced to death for trafficking in 4,213gm of ganja on May 15, 2016, in a rented room in Bandar Baru Permas Jaya in Johor and his appeal was dismissed by the Court of Appeal.
For the Iranians, they were convicted and sentenced to death by the High Court for trafficking 15,821gm of methamphetamine in a house in Jalan Dutamas Melor, Sentul, Kuala Lumpur, on February 11, 2012.
Mohammad Reza, Hasan Javadipirouz lost their appeal in the Court of Appeal.
The Court of Appeal had however set aside Mahmood Yary’s conviction and acquitted him.
Hisyam also represented Mohammad Reza while Mahmood Yary was represented by lawyer Datuk Kamarul Hisham Kamaruddin. — Bernama