ABDULLAH FUAD MAREAI AL KATHERI v Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Case Significance

Illustrates the burden on an accused to rebut the presumption of trafficking under the Dangerous Drugs Act 1952 and appellate review of the pre-conditions for section 27 evidence, the Court of Appeal affirming a conviction supported by broad rather than full written grounds.

This Court of Appeal decision at Putrajaya concerns an appeal against a conviction for drug trafficking by a foreign national. The appellant had been charged in the Kuala Lumpur High Court under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), punishable under seksyen 39B(2), the charge, as amended by the prosecution before trial, alleging the trafficking of cannabis at a residential unit in Kuala Lumpur. At the conclusion of the trial the High Court found the accused guilty, holding that he had failed to rebut the statutory presumption of trafficking and had failed to raise a reasonable doubt on the prosecution's case, and that his defence was not sustainable. On appeal, one difficulty was the absence of full written grounds of judgment in the record of appeal, the High Court having provided broad written grounds at the end of the trial. The panel of Hashim bin Hamzah, Azmi bin Ariffin and Mohd Firuz bin Jaffril JJCA examined the pre-conditions for the admission of evidence under section 27 of the Evidence Act 1950, which allows so much of information given by an accused as leads to the discovery of a fact to be proved, and considered whether the conviction was safe notwithstanding the state of the grounds. The court concluded that the conviction was safe, that the accused had failed in his defence, and that the sentence passed by the High Court was within the law and a proper exercise of discretion not warranting appellate intervention. It dismissed the appeal and affirmed the order of the High Court. The judgment is a useful illustration of the burden on an accused to rebut the trafficking presumption and of appellate review of a conviction where the written grounds are broad rather than full. The judgment also illustrates that the absence of full written grounds is not necessarily fatal to the safety of a conviction on appeal where the broad grounds provided, taken with the record, adequately disclose the basis of the trial court's findings, and it reaffirms the settled approach that an accused who fails to rebut the statutory presumption and to raise a reasonable doubt is properly convicted.