NUR AISHAH BINTI ABDULLAH v Pendakwa Raya

Case Significance

Illustrates the burden cast on an accused by the section 37(da) presumption of trafficking under the Dangerous Drugs Act 1952 and the limited effect of an innocent-carrier defence and an agent-provocateur argument where possession and knowledge are proved.

This Court of Appeal decision concerns an appeal against convictions for drug trafficking and the effect of the statutory presumption of trafficking. The appellant had been convicted by the High Court at Johor Bahru on two charges under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) and sentenced to imprisonment for life. On appeal the appellant argued that she was an innocent carrier who lacked possession, custody or knowledge of the drugs, and that the case involved an agent provocateur; she also challenged the chain of movement of the drug exhibits. The court addressed the statutory presumption of trafficking under seksyen 37(da) of the Dangerous Drugs Act, which arises once possession is established and casts on the accused the burden of rebutting it on a balance of probabilities, and it treated the CCTV footage and fingerprint evidence as supporting evidence corroborating the prosecution's case. The panel of Azman bin Abdullah, Mohamed Zaini bin Mazlan and Azmi bin Ariffin JJCA considered whether the innocent-carrier defence had been made out, whether the involvement of an agent provocateur affected the admissibility or weight of the evidence, given that an agent provocateur's evidence is not tainted merely by that role, and whether the chain of custody was intact. Having examined the whole of the appeal record and the submissions, the court was satisfied that possession and knowledge had been established, that the section 37(da) presumption had not been rebutted, and that the innocent-carrier defence failed. It unanimously dismissed the appeal against conviction and sentence and affirmed the decision of the High Court, maintaining the sentence of life imprisonment. The judgment is a useful illustration of the burden that the section 37(da) presumption casts on an accused and of the limited effect of an innocent-carrier defence and an agent-provocateur argument where possession and knowledge are proved.