BASHKERAN A/L SALLIAH v Pendakwa Raya

Case Significance

Applies the trafficking presumption under section 37(da) of the Dangerous Drugs Act 1952: an accused who fails to rebut it on the balance of probabilities and raises no reasonable doubt leaves the section 39B(1)(a) conviction safe on appeal; the sentence of 30 years and 12 strokes, the statutory minimum, was affirmed.

This Court of Appeal decision concerns a criminal appeal against conviction and sentence by an accused (referred to here by role) who had been found guilty of trafficking in a dangerous drug under section 39B(1)(a) of the Akta Dadah Berbahaya 1952 (Dangerous Drugs Act 1952) and sentenced under section 39B(2). The prosecuting authority is the “Pendakwa Raya” (the Public Prosecutor). The charge concerned trafficking in methamphetamine of some 182 grams net weight, arising from an arrest at a business area in Sungai Udang, Melaka, when the accused was found holding a package that, on examination, contained plastic packets of a substance later confirmed by the Chemistry Department to be the drug.

At the close of the defence case the High Court found the accused guilty and convicted him, imposing life imprisonment expressed as a term of 30 years from the date of arrest, together with 12 strokes of the cane. On appeal, the court — Hayatul Akmal binti Abdul Aziz JCA delivering, sitting with Azmi bin Ariffin and Meor Hashimi bin Abdul Hamid JJCA — considered whether the trial judge had sufficiently weighed the defence and whether any appealable error had been made.

The court held that the appellant had “gagal untuk mematahkan anggapan pengedaran dadah di atas imbangan kebarangkalian” (failed to rebut the presumption of trafficking on the balance of probabilities) as required under section 37(da) of the Act, and had “gagal untuk menimbulkan apa-apa keraguan yang munasabah” (failed to raise any reasonable doubt) against the prosecution case, which had been proved beyond reasonable doubt. Finding the conviction “selamat untuk dikekalkan” (safe to be affirmed), the court unanimously dismissed the appeal against conviction. On sentence, it observed that the punishment was the minimum prescribed by law and affirmed it.

The judgment is a clear application of the statutory trafficking presumption under section 37(da): once the presumption arises, the accused bears the burden of rebutting it on the balance of probabilities, and a failure to do so — coupled with an inability to raise a reasonable doubt — leaves the conviction safe on appeal.