Muhamad Izwan Bin Ishak

On the court record

Muhamad Izwan Bin Ishak appears in the corpus in appellate criminal defence and in contempt proceedings, argued in the High Court (Mahkamah Tinggi) and the Court of Appeal (Mahkamah Rayuan). Two Court of Appeal matters, appearing for the appellant, arose from a drug-trafficking prosecution under 'seksyen 39B(1)(a) Akta Dadah Berbahaya 1952' (section 39B(1)(a) of the Dangerous Drugs Act 1952) and concentrated on the defences available to a person found carrying drugs. The issues on appeal were whether there was an absence of the accused's knowledge of the drugs found, whether there was an absence of knowledge of the true nature of what was being carried, whether the defence of an 'innocent carrier' arose, whether there was 'ugutan' (duress), whether a Notis Alcontara had been properly given, and whether due consideration had been given to the evidence of a defence witness, all against the statutory presumption under section 37(da) of the Act and the defence of compulsion by threats under section 94 of the Penal Code. A third matter, in the High Court and appearing for the defendant, was a committal application in which a plaintiff sought to have a defendant found in contempt for breaching or interfering with a court injunction. The court found that the plaintiff had succeeded in proving that the defendant had breached the injunction order, but, having seen the defendant and heard his explanation, understood that his actions had not been intended to defy the injunction; accordingly the court issued a warning and a reprimand rather than a punitive committal. The Notis Alcontara point is a distinctive feature of Malaysian drug practice, since it requires the defence to give the prosecution advance notice that the accused will say he did not know what he was carrying, and a failure to give that notice properly can undermine an otherwise arguable innocent-carrier case. Across the appearances the practice combines the innocent-carrier and duress defences that recur in drug-trafficking appeals with the measured exercise of the contempt jurisdiction, where a proven breach may still be met with a warning where wilful defiance is absent.