Julasiri Bin Akilmara v Pendakwa Raya

Case Significance

Illustrates the importance of the trial court making clear whether the defence must answer direct trafficking under section 2 or presumed trafficking under section 37(da) of the Dangerous Drugs Act 1952: a failure to do so is a material procedural error that can lead the appellate court to substitute a possession conviction for a trafficking conviction even where possession is proved.

This Court of Appeal decision concerns a procedural defect at trial that led to a trafficking conviction being reduced to one for possession. The appellant had been jointly charged with a co-accused for trafficking 137.03 grams of methamphetamine under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) read with seksyen 34 Kanun Keseksaan (section 34 of the Penal Code); both had been convicted and sentenced to life imprisonment and fifteen strokes under section 39B(2A). On appeal the appellant advanced two points: that possession had not been proved, and that the trial judge had failed to indicate to the defence whether he had to meet a case of actual trafficking within the definition in section 2 of the Act or of presumed trafficking under the statutory presumption in section 37(da). The Court of Appeal found no merit in the challenge to possession, agreeing with the High Court that the appellant was in possession of the drugs. However, it found a significant procedural error on the trafficking charge: the failure to inform the appellant which basis of trafficking he was called upon to answer left him unable to meet the case properly. The court set aside the conviction for trafficking under section 39B(1)(a) and substituted a conviction for possession under section 12(2), punishable under section 39A(2), sentencing the appellant to twelve years' imprisonment from the date of arrest, and sparing him whipping because he was over fifty years of age. The judgment is a useful illustration of the importance of the trial court making clear to the defence whether it must answer a case of direct trafficking or of presumed trafficking under section 37(da): a failure to do so is a material procedural error that can lead the appellate court to substitute a possession conviction for a trafficking conviction, even where possession itself is established.