JUDGMENT
Richard Malanjum CJ:
Introduction
[1] The common and central issue in the present appeals is on the constitutional validity of s. 37A of the Dangerous Drugs Act 1952 ("DDA"), with reference to arts. 5, 8, and 121 of the Federal Constitution ("FC" ).
[2]
Each of the appellants in these two appeals was charged before and
convicted by two different trial judges for drug trafficking under s. 39B of the DDA.
However, since both appeals were premised on one common and crucial
issue, we proceeded to hear them together while conscious of the fact
that, on merits, these two appeals might differ. We therefore heard
submissions on the common issue of these two appeals.
[3] This is a unanimous judgment of the remaining judges of the court delivered pursuant to s. 78(1) of the Courts of Judicature Act 1964. Mr Justice Balia Yusof bin Haji Wahi has since retired on 25 March 2019.
The Salient Facts
Criminal Appeal No. 05-94-05-2017(B) ("First Appeal")
[4] The charge against the appellant in the first appeal (hereinafter "first appellant" for ease of reference) read as follows:
Bahawa
kamu pada 19 Ogos 2014 lebih kurang jam 2.00 pagi di Cawangan
Pemeriksaan Penumpang 2 (CPP2) Balai Ketibaan Antarabangsa, Lapangan
Terbang Antarabangsa Kuala Lumpur (KLIA), di dalam negeri Selangor Darul
Ehsan telah didapati mengedar dadah berbahaya iaitu Methamphetamine
seberat 2556.4 gram dan dengan itu kamu telah melakukan suatu kesalahan
di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.
[5]
The first appellant, a national of the Republic of the Philippines,
travelled from Hong Kong to Malaysia by flight on 19 August 2014. Upon
her arrival at KLIA at about 2am, a customs enforcement officer ('PW3')
saw the first appellant in the queue and had her bag ('P7') scanned.
Upon scanning, PW3 saw a suspicious image inside the bag. He requested a
customs officer ('PW6') to examine the bag further.
[6] On
physical examination of the contents of the bag, PW6 discovered that it
contained several new handbags. He then removed one of the handbags for
scanning. PW3 saw a suspicious image inside the handbag. He requested
PW6 to place the handbag back into the bag. The first appellant and the
bag were then brought to an examination room where they were handed over
to an investigating officer ('PW7').
[7] Instructed by
PW7, PW6 conducted a search of the bag in the presence of the first
appellant. The bag was found to contain clothings, shoes and nine
packages of handbags wrapped in clear plastic. Each handbag was found to
contain four packages, wrapped with yellow coloured tape and concealed
inside the inner back cover of each of the handbags. A total of 36
packages were recovered from the nine handbags. Each package contained
crystalline substance.
[8] Using a test kit, PW6 found that
the substance in each package tested positive for methamphetamine. The
substances were sent to the Chemistry Department for analysis and were
confirmed to contain in total 2556.4g of methamphetamine.
Criminal Appeal No. 05-193-08-2017 (W) ("Second Appeal")
[9] The charge against the appellant in the second appeal (hereinafter "second appellant" for ease of reference) was as follows:
Bahawa
kamu pada 1 Julai 2014 jam lebih kurang 8.30 malam di bilik nombor 919,
Arena Star Luxury Hotel, Jalan Hang Lekiu, di dalam Wilayah Persekutuan
Kuala Lumpur telah didapati mengedar dadah merbahaya iaitu Cocaine
seberat 693.4g dan dengan itu telah melakukan kesalahan dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.
[10]
The second appellant, a Thai national, travelled by flight from Bangkok
to Bahrain on 26 June 2014, and thereafter from Bahrain to Kuala Lumpur
via Abu Dhabi on 29 June 2014 on Etihad Airways. At the Bahrain
airport, the second appellant checked in a bag (exh. P34) for her flight
to Kuala Lumpur. On 30 June 2014, upon her arrival at Kuala Lumpur
International Airport (KLIA), the second appellant lodged a complaint
regarding the loss of the bag to the airport authorities. The second
appellant gave her personal information and the address where she would
be staying, which was Room 919 in Hotel Arena Star Luxury, Kuala Lumpur.
[11]
On 1 July 2014, the bag arrived at KLIA and was handed over to the Lost
and Found Section of Malaysia Airlines System ('MAS'). Etihad Airways
had requested MAS to arrange the delivery of the bag to the second
appellant. The bag had been labelled with a 'rush' tag ('P28'),
indicating the second appellant's name and the tag number.
[12]
At about 4pm on the same day, an employee of bags handling company
('SP8') brought the bag from the lost and found section to the arrival
hall for scanning. During the scanning process, a customs officer
('SP4') noticed a suspicious green image on the inside walls of the bag.
He contacted the KLIA customs enforcement team. SP10 led the
enforcement team to the scanning machine and received the bag from SP4.
[13]
Having examined the bag, SP10 noticed the second appellant's name on
the tag and noted that the bag was in good condition but unlocked. SP10
requested SP8 to deliver the bag to the second appellant as planned.
SP10 and some other customs officers followed SP8 to Hotel Arena Star
Luxury in a different vehicle.
[14] At the hotel, SP10
brought the bag to the hotel counter and met a hotel staff SP6, who
telephoned the second appellant in Room 919 to collect her bag. The
second appellant came down to the hotel lobby, signed the receipt, and
took the bag from SP8. The second appellant then pulled the bag into the
elevator, while being followed by SP10 and three other officers. In the
elevator, SP10 saw the second appellant tore off the tag from the bag.
[15]
When the elevator reached the ninth floor, the second appellant exited
and went to Room 919. As she was about to open the room door, SP10
introduced himself. SP10 had also obtained the bag tag which was earlier
on torn off by the second appellant. The second appellant's reaction
was one of shock.
[16] In Room 919, SP10 instructed the
second appellant to open the bag for examination. After the second
appellant unzipped the bag and removed the items therein, SP10 found a
black layer on the inside wall of the bag. SP10 requested the second
appellant to cut the layer with a knife, and found white powder inside
the black layer.
[17] The second appellant and the bag were
taken to the KLIA customs enforcement office where SP10 made further
inspections of the bag and discovered a black frame. Around the black
frame were found two packages containing white powder. The white powder
was sent to the Chemistry Department for analysis. After analysis, the
white powder was confirmed to contain 693.4g of cocaine.
Decisions Of The High Court
The First Appeal
[18] The learned trial judge in respect of this first appeal ruled that for the element of possession, the presumption under sub-s. 37(d) of the DDA
could be invoked against the first appellant. The learned trial judge
found that the bag was under the custody and control of the first
appellant. Such finding was premised on the evidence that the tag was
attached to the bag and the first appellant was caught red-handed
carrying the bag.
[19] The learned trial judge also found
that there was evidence to indicate the knowledge of first appellant.
Such finding was based on how the drugs were carefully and cunningly
concealed in the inner layers of the handbags, packed as if they were
new and placed together with other items similarly packed. The learned
trial judge therefore inferred an intention to avoid detection and
thereby knowledge. Indeed the learned trial judge concluded that the
only logical finding would be that the first appellant had knowledge of
the drugs she was carrying in the bag.
[20] On the issue of trafficking, the learned trial judge ruled that in view of s. 37A the prosecution was allowed to invoke another presumption under sub-s. 37(da)(xvi)
as the weight of the methamphetamine exceeded 50g. The trial judge
found that the prosecution had proven the following overt acts:
(i)
that the first appellant was conscious in the carrying or transporting
of the drugs from Hong Kong to Malaysia by flight; and
(ii) that the concealment of the drugs was solely for the purpose of evading detection.
[21] The learned trial judge therefore found a prima facie case made against the first appellant.
[22]
In her defence, the first appellant said that while on holiday in
Thailand with her friend Jackelyn, she was offered an assignment from
Jackelyn's boyfriend, Kevin, to carry diamonds from Hong Kong to
Malaysia. It was the first appellant's account that the next day she
flew to Hong Kong alone. On arrival in Hong Kong, she was picked up by
one Mike who on the following day brought her to the Hong Kong airport
and checked in the bag for her.
[23] The learned trial
judge did not accept the defence of innocent carrier advanced by the
first appellant. The learned trial judge reasoned that no one would
carry diamonds of colossal value in an unlocked checked-in bag. They
could have been stolen while in transit. It was also inferred that from
the conduct of the first appellant, the transaction was planned and
well-executed based on the frantic and fast-paced action taken.
Meanwhile, the account given by the first appellant in court was also
ruled to be an afterthought in order to dissociate herself from the
knowledge of the drugs.
[24] The learned trial judge also
held that there were circumstances which could have aroused the
suspicion of the first appellant on what she was carrying in the bag.
Yet, she just ignored those facts indifferent to what she was carrying
and simply shut her eyes on the obvious. Applying therefore the
principle of wilful blindness, the first appellant was taken to know
that she was carrying drugs. Hence, the first appellant was convicted as
charged and sentenced to death.
The Second Appeal
[25] The High Court observed that s. 37A of the DDA would allow the use of double presumptions, namely, the presumptions under sub-ss. 37(d) and (da) could be used together to prove "possession and knowledge" and thereafter to prove "trafficking".
[26] In respect of the presumption under sub-s. 37(d),
the learned trial judge noted that the prosecution needed only to prove
that the second appellant had the custody and control over the bag in
order for the second appellant to be presumed to have possession and
knowledge of the dangerous drug unless proven otherwise. The learned
trial judge found custody and control on the following facts:
(i) that at the time of arrest, the second appellant was holding the bag;
(ii) that the second appellant removed the bag tag while still in the elevator;
(iii) that the second appellant's name was shown on the bag tag and the passenger information document;
(iv) that the second appellant checked in the bag herself at the Bahrain airport;
(v)
that the second appellant made a complaint at KLIA after failing to
locate the bag, and provided her hotel details for the bag to be
delivered to her immediately upon arrival;
(vi) that the second appellant received the bag at the hotel lobby and brought it to the room; and
(vii)
that the contents of the bag (other than the dangerous drugs) were the
second appellant's personal effects, such as clothings.
[27]
The learned trial judge took into account the fact that the bag was
reported missing and the possibility of having been tampered with since
the bag was unlocked. However, based on the evidence as a whole, it was
found that the fact that the bag was not with the second appellant for a
day did not negate the custody and control on her part. It was
highlighted that the drugs were not easily found when the bag was
opened. On the contrary, the drugs were hidden in a secret compartment
in the bag, namely, within the black frame which was only found when the
side of the bag was cut with a knife. The learned trial judge
considered that it was not possible within a short time for any other
persons to have prepared such a frame to fit the size of the bag and for
two packages to fit the size of the frame.
[28] Since the elements of custody and control were proven, it was ruled that sub-s. 37(d)
applied and the second appellant was presumed to have possession and
knowledge of the drugs. Further, since the weight of the cocaine
exceeded the statutory stipulated weight, it was then ruled that sub-s. 37(da)(ix) also applied. As such, the second appellant was presumed to be trafficking the drugs.
[29] Having found that a prima facie
case had been established by the prosecution, the learned trial judge
called for the first appellant to enter defence. The basis of the second
appellant's defence case was that she had no knowledge of the drugs in
the bag. The learned trial judge however pointed out the inconsistencies
in the second appellant's defence case, including:
(i)
that it was the second appellant's case that she went to Bahrain for
holiday yet it was inconsistent with her testimony during
cross-examination that she went there to find work;
(ii) that the second appellant could not recall the hotel or the name of the beach she purportedly visited in Bahrain;
(iii)
that the second appellant had stopped working as a bartender, where she
had previously earned a monthly salary of RM700. It was difficult to
accept that the second appellant, who has a six-year old child, could
afford the high cost for the alleged holiday; and
(iv) that the
second appellant's account that the money for her holiday in Bahrain was
given by a friend, Som, from her previous workplace, was doubtful. Som
was not called to give evidence.
[30] The
learned trial judge rejected the second appellant's defence as a bare
denial and held that the second appellant had failed to adduce evidence
to rebut the presumptions under sub-ss. 37(d) and (da) of the DDA. Accordingly, the learned trial judge found the second appellant guilty as charged and sentenced her to death.
Decision Of The Court Of Appeal
[31]
Aggrieved, both the appellants appealed respectively to the Court of
Appeal against the decisions handed to them by the respective learned
trial judges.
The First Appeal
[32] The first
appellant appealed on three grounds, namely, on the admissibility of
witness statements, the constitutionality on the use of double
presumptions and the defence of innocent carrier.
[33] In
respect of admissibility of witness statements, the Court of Appeal held
that there was no statutory requirement for written consent to be given
in order to admit written statements from the prosecution witnesses.
More so, when counsel for the first appellant did not object to the use
of the written statements during the trial. No miscarriage of justice or
prejudice to the first appellant was found to have been caused.
[34] On the issue of double presumptions, the Court of Appeal noted that it was not in dispute that the amending Act inserting s. 37A into the DDA
was a valid Act enacted by Parliament. Further, it was considered that
despite the invocation of the presumptions, the onus of proving the case
beyond reasonable doubt still rests on the prosecution. At any rate
before a presumption can be invoked,
the prosecution must adduce positive evidence of the relevant fact or
facts. As such, the rights of the defence are maintained since the
opportunity to rebut the presumption
is not taken away. Hence, the Court of Appeal held that the use of
double presumptions was not unconstitutional and did not violate the presumption of innocence.
[35]
On the defence of innocent carrier, the Court of Appeal agreed with the
finding and conclusion of the learned trial judge. It was held that it
was not enough for the first appellant to merely assert the absence of
knowledge. If and when the circumstances arouse suspicion, the Court of
Appeal opined that it was incumbent upon the first appellant to make the
necessary inquiries. Accordingly, the appeal of the first appellant was
dismissed.
The Second Appeal
[36] The second
appellant appealed on the ground that the learned trial judge had erred
in law and fact in finding custody and control.
[37]
However, the Court of Appeal held that while no drugs might have been
detected when the bag was checked in at Bahrain airport, it did not mean
that no drugs were present in the bag at that time. The Court of Appeal
noted that there were many such instances of such happening. But it is
not for the court to answer such question as to how the drugs escaped
detection at the airport of origin.
[38] On the possibility
of tampering, the Court of Appeal agreed with the finding of the
learned trial judge that considering the manner in which the drugs were
concealed inside the bag, it would not have been possible for others to
have placed the drugs in the bag in that manner within the time period.
There was also no evidence found to indicate others including any
potential enemy, motivated to harm the second appellant by planting the
drugs in the bag. Anyway, the Court of Appeal considered that a person
with such a motive would not have gone to such extent of modifying the
bag to conceal the drugs. Such person or enemy would have placed the
drugs in a conspicuous place.
[39] The Court of Appeal also
observed that as the drugs were well concealed, leaving the bag
unlocked was just an excuse to say that someone could have placed the
drugs inside the bag in the event of the second appellant being caught.
Further, since the second appellant had checked the bag and confirmed
that it was in good condition upon receiving it at the hotel lobby, the
Court of Appeal ruled out tampering as an issue.
[40] The
Court of Appeal also agreed with the learned trial judge on the lack of
credibility to the story that the second appellant travelled to Bahrain
for holiday using funds supplied by Som. Indeed, the Court of Appeal
found the defence of second appellant was a bare denial. It was
incapable of casting a reasonable doubt in the prosecution's case or
rebutting the presumption of knowledge on the balance of probabilities. The appeal was therefore dismissed.
Decision Of This Court
[41]
We are very conscious that there are several grounds of appeal
submitted for both these appeals. However, before us, learned counsel
for both the appellants focused his submissions solely on the
constitutionality of s. 37A of the DDA. The section appears to allow the use of double presumptions to find possession as well as trafficking for a charge under s. 39B of the DDA.
[42]
Thus, in this judgment, we will therefore mainly deal with the impugned
section. In the event we find there is no merit on the
constitutionality challenge, we will then, if necessary, proceed with
the other grounds submitted before making our ultimate decisions on the
respective appeals.
History Of s. 37A Of The DDA
[43]Section 37 of the DDA
lists out a number of presumptions. The two presumptions that were
invoked in the present appeals are in sub-ss. (d) and (da), which are
reproduced below for ease of reference:
Presumptions
37. In all proceedings under this Act or any regulation made thereunder:
...
(d)
any person who is found to have had in his custody or under his control
anything whatsoever containing any dangerous drug shall, until the
contrary is proved, be deemed to have been in possession of such drug
and shall, until the contrary is proved, be deemed to have known the
nature of such drug;...
...
(da) any person who is found in possession of:
...
(ix) 40grammes or more in weight of cocaine;
...
(xvi) 50 grammes or more in weight of Methamphetamine;
otherwise
than in accordance with the authority of this Act or any other written
law, shall be presumed, until the contrary is proved, to be trafficking
in the said drug;...
[44] Prior to the insertion of s. 37A, in the case of Muhammed bin Hassan v. PP [1998] 2 CLJ 170; [1998] 2 MLJ 273, the accused was convicted for drug trafficking under s. 39B of the DDA. The trial judge found that the accused had failed to rebut the statutory presumptions in sub-ss. 37(d) and (da) of the DDA on a balance of probabilities.
[45] The Federal Court drew attention to the distinction between the words "deemed" in sub-s. 37(d) and "found" in sub-s. 37(da).
The former arises by operation of law without necessity to prove how a
particular state of affairs is arrived at, whereas the latter connotes a
finding made by a court after trial. It was held that, in order to
invoke the presumption of trafficking under s. 37(da),
the court must make an express affirmative finding that the accused was
"in possession" of the drug based on evidence. Based on the clear and
unequivocal wording of the two subsections, the presumption of possession under sub-s. 37(d) cannot be used to invoke the presumption of trafficking under sub-s. 37(da). His Lordship Chong Siew Fai (Chief Judge Sabah and Sarawak) said this at p. 190 (CLJ); p. 289 (MLJ):
In view of the above differences, it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption
as contended by the learned deputy public prosecutor - a construction
that ought to be adopted only if, upon the wordings of the two
subsections, such an intention of the Parliament is clear, which, in our
opinion, is not.
[46] The Federal Court also went on to express the view that the use of presumption upon presumption would be harsh and oppressive. The court said this at p. 194 (CLJ); p. 291 (MLJ):
In our view, on the wording of s. 37(da) as it stands, to read the presumption of possession (ie possession as understood in criminal law, with knowledge) provided in s. 37(d) into s. 37 (da) so as to invoke against an accused a further presumption of trafficking (ie presumption upon presumption) would not only be ascribing to the phrase 'found in possession' in s. 37(da)
a meaning wider than it ordinarily bears but would also be against the
established principles of construction of penal statutes and unduly
harsh and oppressive against the accused.
[47] Following the decision in Muhammed bin Hassan (supra), Parliament tabled the Dangerous Drugs (Amendment) Act 2014, which introduced a new s. 37A without any amendment to any of the wordings in the presumption provisions. The legislative purpose in enacting s. 37A is to permit the presumption in sub-s. 37(d) to be applied together with the presumption in sub-s. 37(da)
against an accused. It was explained at the second reading of the Bill
in the Dewan Rakyat (House of Representatives) (per the Hansard of 4
December 2013) in this way:
Sebelum ini pihak pendakwaan dengan jayanya menggunakan kedua-dua anggapan ini bagi membuktikan kes pengedaran di bawah seksyen 39B Akta 234 yang jika sabit kesalahan membawa hukuman gantung mandatori. Walau bagaimanapun sejak keputusan kes Mahkamah Persekutuan iaitu Pendakwa Raya v. Mohamad Hassan [1998] 2 CLJ 170,
pendakwaan tidak lagi boleh menggunakan kedua-dua anggapan ini
bersekali. Ini telah menyebabkan kegagalan pihak pendakwaan membuktikan
pengedaran seperti mana yang ditakrifkan di bawah seksyen 2 Akta 234.
Oleh yang demikian bagi mengatasi masalah ini, maka Kementerian
Kesihatan mencadangkan peruntukan baru ini dimasukkan ke dalam Akta 234.
Tuan Yang Di-Pertua, cadangan peruntukan menomborkan semula seksyen 37A sebagai seksyen 37B dan memasukkan seksyen 37A yang baru adalah bertujuan untuk memperjelaskan pemakaian seksyen 37(d) dan 37(da) Akta Dadah Berbahaya 1992.
Pindaan ini diperlukan ekoran daripada beberapa keputusan mahkamah yang
diputuskan termasuk keputusan Mahkamah Persekutuan di dalam kes Mohamad Hassan v. Pendakwa Raya [1998] 2 CLJ 170.
[48] The purpose of the amendment was therefore obvious, namely, to overcome the impact of the decision in Muhammed bin Hassan (supra). The amendment Act was duly passed and the newly inserted s. 37A came into force on 15 February 2014, before the dates on which the appellants in these appeals were charged. Section 37A reads:
Application of presumptions
37A. Notwithstanding anything under any written law or rule of law, a presumption may be applied under this Part in addition to or in conjunction with any other presumption provided under this Part or any other written law.
[49] The appellants now seek to challenge the constitutionality of s. 37A on two broad grounds:
(i) that it contravenes the principle of separation of powers in the FC; and
(ii) that it violates arts. 5 and 8 of the FC.
[50]
But before we deal with these two grounds in turn, we propose to first
consider the preliminary objection raised by the respondent.
Preliminary Objection
The Submissions Of Parties
[51]
At the commencement of the hearing of these appeals, the learned Deputy
Public Prosecutor for the respondent raised the issue that the
appellants had not obtained leave from the Federal Court to challenge
the constitutional validity of s. 37A of the DDA.
It was pointed out that the validity of the section was challenged on
the ground that Parliament did not have power to enact it under art. 74(1) of the FC. It was submitted that pursuant to art. 4(4) of the FC the appellants ought to have sought leave from the Federal Court to mount the present challenge.
[52]
In response, learned counsel for the appellants submitted that the
appellants were not challenging the legislative competence of Parliament
to enact s. 37A. The crux of the appellants' argument was that, reading art. 121(1) together with art. 74(1), Parliament was empowered to make law and not to declare law. It was the appellants' case that the enactment of s. 37A was an impermissible act of declaring law. As such, it was contended that the present challenge did not fall within art. 4(4) and that leave was not required.
Scope Of art. 4(4) Of The FC
[53]Article 4(3) of the FC reads as follows:
The validity of any law made by Parliament or the Legislature of any State shall not be questioned on
the ground that it makes provision with respect to any matter with
respect to which Parliament or, as the case may be, the Legislature of
the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground or:
(a) if the law was made by Parliament, in proceedings between the Federation and one or more States;
(b) if the law was made by the Legislature of a State, in proceedings between the Federation and that State. (emphasis added)
[54]Article 4(4) which relates to the ground mentioned in art. 4(3) provides that:
Proceedings
for a declaration that a law is invalid on the ground mentioned in
Clause (3) (not being proceedings falling within paragraph (a) or (b) of
the Clause) shall not be commenced without the leave of a judge of the
Federal Court; and the Federation shall be entitled to be a party to
any such proceedings, and so shall any State that would or might be a
party to proceedings brought for the same purpose under paragraph (a) or
(b) of the Clause. (emphasis added)
[55] Thus, art. 4(4)
applies only where the validity of a law is challenged on the ground
that it makes provision with respect to a matter on which Parliament or
the State Legislature has no power to make laws. The central question
relates to the subject matter of the impugned law. In Gin Poh Holdings Sdn Bhd v. The Government of the State of Penang & Ors [2018] 4 CLJ 1; [2018] 3 MLJ 417 at para. [32]), this court has clarified that the ground of challenge referred to in arts. 4(3) and 4(4) comprises the following situations:
... an impugned law deals with a matter with respect to which the relevant legislative body has no power to make law if:
(a) Parliament made law on a matter not within the Federal List;
(b) the State Legislature made law on a matter not within the State List;
(c)
Parliament made law on a matter within the State List pursuant to art
76, but failed to comply with the requirements in the said Article; or
(d)
the State Legislature made law on a matter within the Federal List
pursuant to art 76A(1), but failed to comply with the requirements in
the said Article...
[56] Leave
from the Federal Court is only required in proceedings for a declaration
that a law is invalid on that specific ground. In such proceedings, the
Federal Court has exclusive original jurisdiction to determine the
matter. (See: art. 128(1)(a) ).
[57]
There are of course other grounds on which the validity of a law may be
challenged. For instance, a law may be invalid because it is
inconsistent with certain provisions in the FC (art. 4(1) ), or a State law may be invalid because it is inconsistent with a Federal law (art. 75
). The court's power to declare a law invalid on any of these other
grounds "is not subject to any restrictions, and may be exercised by any
court in the land and in any proceeding whether it be started by the
Government or by an individual". (See: Ah Thian v. Government of Malaysia [1976] 1 LNS 3; [1976] 2 MLJ 112 at p. 113).
[58] A broader reading of art. 4(4), however, was adopted in Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri [2014] 6 CLJ 541;
[2014] 4 MLJ 765. In that case, the validity of provisions in various
State Enactments seeking to control and restrict the propagation of
non-Islamic religious doctrines and beliefs among Muslims was challenged
in the High Court on the ground that they contravened art. 11 of the
FC. The Federal Court held that such a challenge fell within the scope
of art. 4(3) and (4) of the FC and ought not to have been entertained by the High Court.
[59] The decision in Titular Roman Catholic Archbishop of Kuala Lumpur (supra) was followed in State Government of Negeri Sembilan & Ors v. Muhammad Juzaili Mohd Khamis & Ors [2015] 8 CLJ 975;
[2015] 6 MLJ 736, where the validity of a State Enactment was
challenged on the ground that it offended the fundamental liberties in arts. 5, 8, 9 and 10 of the FC. Similarly, the Federal Court held that the challenge could only be made via the specific procedure provided for under art. 4(3) and (4) of the FC.
[60] These two cases suggest that a challenge to the constitutionality or validity of a law on any ground comes within the ambit of art. 4(3) and (4).
With respect, we are of the view that the wide interpretation adopted
is contrary to the clear wordings of the aforesaid articles and is not
supported by any consistent line of authorities. (See: Ah Thian (supra), Gerald Fernandez v. Attorney-General, Malaysia [1970] 1 LNS 27; [1970] 1 MLJ 262, Yeoh Tat Thong v. Government of Malaysia & Anor [1973] 1 LNS 180; [1973] 2 MLJ 86, Syarikat Banita Sdn Bhd v. Government of State of Sabah [1977] 1 LNS 125; [1977] 2 MLJ 217, Rethana v. Government of Malaysia [1984] 1 CLJ 352; [1984] 1 CLJ (Rep) 323; [1984] 2 MLJ 52, East Union (Malaya) Sdn Bhd v. Government of State of Johore & Government of Malaysia [1980] 1 LNS 18; [1980] 2 MLJ 143). We are therefore not inclined to follow these two cases. In our view, they were decided per incuriam. Indeed, the anomaly in these two cases appears to have been acknowledged in Gin Poh Holdings (supra) when this court said this at para. [33]:
A different construction of the scope of arts. 4(4) and 128(1)(a)
appears to have been adopted in a handful of cases. The ground of
challenge that a law relates to 'matters with respect to which the
legislative body has no power to make laws' was given a wider
interpretation, extending to challenges that an Act contravenes the
fundamental liberties provisions in the Federal Constitution and that a
State Enactment is inconsistent with Federal law. We observe that the
cases in favour of the wider interpretation do not offer a clear
juridical foundation for the alternative construction, and are not
altogether reconcilable with the dominant position settled by the line
of authorities discussed earlier.
[61] In the
present appeals, as readily conceded by learned counsel for the
appellants, the legislative competence of Parliament in respect of the
subject matter of s. 37A of the DDA is not in issue. The basis of the appellants' challenge is that by enacting s. 37A which reverses the decision of the Federal Court in Muhammad bin Hassan (supra), Parliament had usurped the judicial power of the Federation and fallen foul of art. 121(1) of the FC. The appellants' reference to art. 74(1) was merely to draw attention to the words "Parliament may make law" in support of that basis. Since the validity of s. 37A
is not challenged on the ground that it relates to a matter on which
Parliament has no power to make laws, the challenge does not fall within
the scope of art. 4(4) and leave is not required from this court.
[62] Hence, we find the preliminary objection by the respondent has no merit and we dismiss it accordingly.
Challenge Based On Separation Of Powers
The Submissions Of Parties
[63] The appellants' main ground for challenging the validity of s. 37A
is based on the principle of separation of powers. The submissions for
the appellants on this point may be summarised as follows:
(a) under art. 74(1) of the FC, Parliament is empowered only to make laws;
(b) under art. 121(1), judicial power is vested exclusively in the courts;
(c) in Muhammed bin Hassan 's case (supra) the Federal Court declared that using the presumption of possession to invoke the presumption of trafficking under s. 37 of the DDA was harsh, oppressive and thus impermissible;
(d)
that once the Federal Court had exercised judicial power on the matter,
Parliament could not interfere with the exercise by amending the DDA to
legalise what had been declared illegal; and
(e) that by enacting s. 37A to overrule the decision of Muhammed bin Hassan (supra), Parliament had exercised the judicial power of declaring law.
[64] In response, the respondent submitted:
(a) that s. 37A was validly enacted by Parliament in accordance with its legislative powers under art. 74(1) of the FC read with items 3 and 4 in the Federal List;
(b) that in Muhammad bin Hassan (supra), the Federal Court held that sub-ss. 37(d) and (da) of the DDA should only be construed to permit the automatic application of a presumption with another presumption if the intention of Parliament was clear from the wordings of the statute;
(c) that the purpose of enacting s. 37A was in fact to bring the DDA in line with the decision in Muhammad bin Hassan (supra), so as to allow the application of double presumptions;
(d) that s. 37A is not mandatory in nature but gives the court a discretion to apply any presumption in addition to or in conjunction with any other presumptions; and
(e) that s. 37A does not encroach upon the judicial power of the courts.
Separation Of Powers In The FC
[65]
The ground of challenge raised calls for a proper understanding of the
principle of separation of powers in our FC and the respective roles of
Parliament and the courts.
[66] It is well-established that
"a constitution must be interpreted in light of its historical and
philosophical context, as well as its fundamental underlying
principles". (See: Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145;
[2018] 1 MLJ 545 at para. [29]). It is not to be interpreted in a
vacuum without regard to the thinking in other countries sharing similar
values. (See: The State v. Khoyratty [2006] UKPC 13 at para.
[29]). The importance of the underlying values of a constitution was
noted by the Judicial Committee of the Privy Council in Matadeen v. Pointu [1998] UKPC 9 with these words:
...
constitutions are not construed like commercial documents. This is
because every utterance must be construed in its proper context, taking
into account the historical background and the purpose for which the
utterance was made. The context and purpose of a commercial contract is
very different from that of a constitution. The background of a
constitution is an attempt, at a particular moment in history, to lay
down an enduring scheme of government in accordance with certain moral
and political values. Interpretation must take these purposes into
account.
[67] It should also be duly considered that constitutions based on the Westminster
model are founded on the underlying principle of separation of powers
with which the drafters are undoubtedly familiar. Thus, even on an
independent reading of the FC, unaided by any such knowledge, the
provisions therein cannot but suggest the intention to confine the
exercise of legislative, executive and judicial power with the
respective branches of Government. (See: Victorian Stevedoring & General Contracting Co Pty Ltd v. Dignan
[1932] ALR 22). The separation of powers between the three branches of
Government is a logical inference from the arrangement of the FC itself,
the words in which the powers are vested and the careful and elaborate
provisions defining the repositories of the respective powers. As such
"this cannot all be treated as meaningless and of no legal consequence".
(See: R v. Kirby; ex p Boilermakers' Society of Australia [1956] ALR 163).
[68]
Hence, while the FC does not expressly delineate the separation of
powers, the principle is taken for granted as a constitutional
fundamental. The absence of express words in the FC prohibiting the
exercise of a particular power by a different branch of Government does
not by any means imply that it is permitted. Lord Diplock in Hinds v. The Queen [1977] AC 195 articulated it well when he said this at p. 212:
It
is taken for granted that the basic principle of separation of powers
will apply to the exercise of their respective functions by these three
organs of government. Thus the constitution does not normally contain
any express prohibition upon the exercise of legislative powers by the
executive or of judicial powers by either the executive or the
legislature. As respects the judicature, particularly if it is intended
that the previously existing courts shall continue to function, the
constitution itself may even omit any express provision conferring
judicial power upon the judicature. Nevertheless it is well
established as a rule of construction applicable to constitutional
instruments under which this governmental structure is adopted that the
absence of express words to that effect does not prevent the
legislative, the executive and the judicial powers of the new state
being exercisable exclusively by the legislature, by the executive and
by the judicature respectively. (emphasis added)
(See also: Liyanage v. The Queen[1967] 1 AC 259 at p. 287).
[69]
The separation of powers between the Legislature, the Executive, and
the Judiciary is a hallmark of a modern democratic State. (See: The State v. Khoyratty (supra) at para. [29]; DPP v. Mollison (No 2) [2003] UKPC 6 at para. [13]; R (Anderson) v. Secretary of State for the HomeDepartment [2002] UKHL 46 at para. [50]). Lord Steyn in The State v. Khoyratty (supra) at para. [12] succinctly said this:
The
idea of a democracy involves a number of different concepts. The first
is that the people must decide who should govern them. Secondly, there
is the principle that fundamental rights should be protected by an
impartial and independent judiciary. Thirdly, in order to achieve a
reconciliation between the inevitable tensions between these ideas, a
separation of powers between the legislature, the executive, and the
judiciary is necessary.
[70] Thus, the
separation of powers is not just a matter of administrative efficiency.
At its core is the need for a check and balance mechanism to avoid the
risk of abuse when power is concentrated in the same hands. (See: James
Madison, "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments ", The Federalist Papers No. 51 (1788)).
[71]
Between the three branches of Government, "all the parts of it form a
mutual check upon each other. The three parts, each part regulates and
is regulated by the rest". (See: Blackstone, Commentaries (Vol. 1),
1765/1979 at p. 154). The separation of powers provides a brake to the
exercise of Government power; the institutions are designed "not only to
co-operate but to conflict, as part of the pulley of checks and
balances". (See: L Thio, A Treatise on Singapore Constitutional Law (Singapore: Academy Publishing, 2012) at p. 160).
[72]
This court has, on several occasions, recognised that the principle of
separation of powers, and the power of the ordinary courts to review the
legality of State action, are sacrosanct and form part of the basic
structure of the FC. (See: Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526; [2017] 3 MLJ 561 at para. [90], Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145; [2018] 1 MLJ 545 at paras. [48], [90]).
[73] In fact, courts can prevent Parliament from destroying the "basic structure" of the FC. (See: Sivarasa Rasiah (supra)
at para. [20]). And while the FC does not specifically explicate the
doctrine of basic structure, what the doctrine signifies is that a
parliamentary enactment is open to scrutiny not only for clear-cut
violation of the FC but also for violation of the doctrines or
principles that constitute the constitutional foundation.
[74]
The role of the Judiciary is intrinsic to this constitutional order.
Whether an enacted law is constitutionally valid is always for the
courts to adjudicate and not for Parliament to decide. As rightly stated
by Professor Sir William Wade (quoted by this court in Indira Gandhi at para. [35]):
...
it is always for the courts, in the last resort, to say what is a valid
Act of Parliament; and that the decision of this question is not
determined by any rule of law which can be laid down or altered by any
authority outside the courts.
Legislative Power
[75]
It is against the background of these fundamental principles that the
appellants' challenge falls to be considered. The appellants rely on
three Indian authorities in support of the contention that Parliament
may make law, but may not declare law so as to overrule a decision of
the court. (See: S T Sadiq v. State Of Kerala [2015] 4 SCC 400, Indira Nehru Gandhi v. Shri Raj Narain [1975] 2 SCC 159, and Medical Council of India v. State of Kerala (Writ Petition (C) No. 178 & 231 of 2018)). The facts and decisions in these cases will be examined in turn.
[76] In S T Sadiq v. State of Kerala (supra),
the State Government issued notices to and acquired ten cashew
factories pursuant to the Kerala Cashew Factories (Acquisition) Act
1974. The ten factories challenged the acquisition in court. The Indian
Supreme Court held that the notice issued was not in compliance with the
statutory requirements and ordered the State Government to hand the
factories back to the respective owners. The State Government then
enacted the Kerala Cashew Factories Acquisition (Amendment) Act 1995.
Section 6 of the Amendment Act which declared that the factories
specified in the Schedule shall vest in the Government with effect from
the date stated, notwithstanding any judgment or order of court, and
notwithstanding any other law. The Schedule contained only the ten
cashew factories.
[77] The Indian Supreme Court held that
s. 6 was unconstitutional in directly seeking to upset a final judgment
of the court. Nariman J said this at para. [13]:
It is
settled law by a catena of decisions of this Court that the legislature
cannot directly annul a judgment of a court. The legislative function
consists in 'making' law [see: Article 245 of the Constitution] and not
in 'declaring' what the law shall be [see: Article 141 of the
Constitution]... It is for this reason that our Constitution permits a
legislature to make laws retrospectively which may alter the law as it
stood when a decision was arrived at. It is in this limited circumstance
that a legislature may alter the very basis of a decision given by a
court, and if an appeal or other proceeding be pending, enable the
Court to apply the law retrospectively so made which would then change
the very basis of the earlier decision so that it would no longer hold
good. However, if such is not the case then legislation which trenches
upon the judicial power must necessarily be declared to be
unconstitutional. (emphasis added)
[78] In Indira Nehru Gandhi v. Shri Raj Narain (supra),
the election of the appellant, the then Prime Minister, had been
declared void by the High Court on grounds of electoral malpractice. The
Constitution (Thirty-ninth Amendment) Act 1975 was then enacted,
purporting to insert art. 329A in the Constitution. Clause 4 of the said
article provided that, among others: no law made by Parliament prior to
the Amendment Act in respect of elections shall apply to a person who
held the office of Prime Minister at the time of the election; the
election of such a person shall not be void on any ground under those
laws; notwithstanding any order of court declaring such election to be
void, the election shall continue to be valid; and any such order and
any finding on which such order is based shall be void and of no effect.
[79]
The Indian Supreme Court held that cl. 4 of the Amendment Act was
invalid. Its vice was in conferring an absolute validity upon the
election of one particular candidate and prescribing that the validity
of that election could not be questioned before any forum or under any
law.
[80] Ray CJ explained at para. [190]:
A
declaration that an order made by a court of law is void is normally
part of the judicial function and is not a legislative function.
Although there is in the Constitution of India no rigid separation of
powers, by and large the spheres of judicial function and legislative
function have been demarcated and it is not permissible for the
Legislature to encroach upon the judicial sphere. It has accordingly
been held that a Legislature while it is entitled to change with
retrospective effect the law which formed the basis of the judicial
decision, it is not permissible to the Legislature to declare the
judgment of the court to be void or not binding... (emphasis added)
[81] In the recent case of Medical Council of India v. State of Kerala (supra),
the admission of about 150 students to some medical colleges during the
academic year 2016-17 were found to be illegal by the High Court. The
decision was upheld by the Indian Supreme Court. Subsequently, the State
Government promulgated the Kerala Professional Colleges (Regularisation
of Admission in Medical Colleges) Ordinance 2017 to regularise the
admissions of those students. The Ordinance provided that,
notwithstanding any judgment, order, or any proceedings of any court, it
would be lawful for the Government to regularise the admission of those
candidates for the academic year 2016-17 whose admission was earlier on
cancelled by the court.
[82] The Indian Supreme Court held
that the Legislature could not declare any decision of a court of law
to be void or of no effect. However, it may remove the defects in the
existing law pointed out by the court. On the facts, the case was not
one of removing a defect in the law. The State Government sought to get
rid of the illegalities in the admissions without changing the provision
of the existing law.
[83] The Ordinance was found to be
invalid, being an act of nullifying a judgment of the court which
tantamount to violating the exclusive vesting of judicial powers in the
Judiciary. Arun Mishra J explained at para. [33]:
It
is crystal clear in the instant case that the State Government has
exceeded its powers and has entrenched upon the field reserved for the
judiciary. It could not have nullified the judgment... The provision of
any existing law framed by legislation has not been changed by the State
Government by the impugned Ordinance but illegalities found in the
admissions were sought to be got rid of. What was laid down in the
judgment for ensuring the fair procedure which was required to be
followed was sought to be undone, it was nothing but the wholly
impermissible act of the State Government of sitting over the judgment
and it could not have promulgated the Ordinance setting at naught the
effect of the judgment.
[84] Read in context,
the three cases above do not stand for the proposition that any
amendment to a law which has been interpreted by a court is an
impermissible encroachment into judicial power. On the contrary, the
cases clearly recognise the power of the Legislature to amend a law
which formed the basis of the decision of the court. The effect of such
an amendment is not to overrule the decision of the court in that case,
but to alter the legal foundation on which the judgment is founded. The
earlier decision of the court then becomes unenforceable for the
interpretation of the newly amended law. But the decision itself which
led to the amendment is not affected.
[85] In fact, there
are plethora of decisions by the Indian Supreme Court postulating a
principle to the effect that while a Legislature does not have the power
to render ineffective a judgment of a court, it may amend the law to
alter the legal basis upon which the judgment was founded. (See for
instance Janapada Sabha Chhindwara v. The Central Provinces Syndicate Ltd [1970] 1 SCC 509 at para. [10]; State of Haryana v. Karnal Coop Farmers' Society Ltd [1993] 2 SCC 363 at para. [37], S R Bhagwat v. State of Mysore [1995] 6 SCC 16 at para. [18]). The same principle was succinctly elucidated by the Indian Supreme Court in the case of In the Matter of Cauvery Water Disputes Tribunal [1993] Supp 1 SCC 96 (II) at para. [76]):
The
principle which emerges from these authorities is that the legislature
can change the basis on which a decision is given by the Court and thus
change the law in general, which will affect a class of persons and
events at large. It cannot, however, set aside an individual decision
inter parties and affect their rights and liabilities alone. Such an act
on the part of the legislature amounts to exercising the judicial power
of the State and to functioning as an appellate court or tribunal.
[86] The distinction between amending a law to remove its defects and overruling a decision of the court was explained in Cheviti Venkanna Yadav v. State of Telangana [2017] 1 SCC 283:
This
plenary power to bring the statute in conformity with the legislative
intent and correct the flaw pointed out by the court can have a curative
and neutralising effect. When such a correction is made, the purpose
behind the same is not to overrule the decision of the court or
encroach upon the judicial turf, but simply enact a fresh law with
retrospective effect to alter the foundation and meaning of the
legislation and to remove the base on which the judgment is founded.
This does not amount to statutory overruling by the legislature. In
this manner, the earlier decision of the court becomes non-existent and
unenforceable for interpretation of the new legislation. (emphasis
added)
[87] On a careful reading of the three
Indian authorities relied upon by learned counsel for the appellants, we
are of the view that those cases do not render any assistance to the
appellants' broad proposition. The common striking feature of those
cases cited is that the impugned laws had the direct effect of
overruling the outcome of the respective particular decisions by the
courts. Hence, these Indian cases are readily distinguishable from the
facts of the present appeals.
[88] In fact, as indicated earlier on s. 37A does not purport to overrule the decision of the Federal Court in Muhammed bin Hassan (supra).
The finality of the decision in that case in respect of the rights and
liabilities of the parties is unaffected. The effect of inserting s. 37A
is to alter generally the law upon which that decision was based. As
such premised on the principles of law distilled from the other cases
which differed for the three cases cited by learned counsel for the
appellants, such an amendment is a permissible exercise of legislative
power and does not encroach into the realm of judicial power.
[89] Thus, we agree with the learned Deputy Public Prosecutor's submission for the respondent, that in inserting s. 37A, Parliament was not overruling the decision in Muhammed bin Hassan (supra) but only complying with the opinion of the Federal Court therein which stated that presumption upon presumption could only be permitted if, 'upon the wordings of the two subsections, such an intention of the Parliament is clear'.
[90]
With respect, the broad proposition contended by learned counsel for
the appellants would have the effect of insulating a law from any change
by Parliament once it has been interpreted by the court. Taken to its
logical end, in effect, the appellants' argument would mean Parliament
is prohibited not only from correcting defects in the law pointed out by
the court, but from amending the law for the future once it has been
applied by the court. Such a far-reaching impact would undoubtedly
constitute a significant fetter on the legislative power of Parliament
not intended by the framers of the FC. It would upset the delicate check
and balance mechanism integral to a constitutional system based on the
separation of powers.
[91] As the bulwark of the FC and the
rule of law, it is the duty of the courts to protect the FC from being
undermined by the whittling away of the principles upon which it is
based. The courts should jealously ensure that the powers of the
Legislature and Executive are kept within their intended limits. (See: Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145; [2018] 1 MLJ 545 at paras. [33]-[34]; Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526; [2017] 3 MLJ 561 at para. [91]; Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1978] 1 LNS 143; [1979] 1 MLJ 135 at p. 148).
[92]
Indeed, barring questions on constitutionality, the role of the courts
is generally to apply and interpret the law as laid down by Parliament.
It is not for the courts to refuse to apply a new law solely on the
ground that a court had previously expressed a particular view on the
unamended version of the law.
[93] For the reasons above, we dismiss the first ground of challenge raised by the appellants.
Challenge Based On Articles 5 And 8
The Submissions Of Parties
[94] The second ground of challenge raised by the appellants is based on arts. 5 and 8 of the FC. Learned counsel for the appellants submitted that:
(a) article 5(1) includes the right to a fair trial, which encompasses both procedural and substantive fairness;
(b) for all intents and purposes, s. 37A of the DDA has the effect of reversing the burden onto an accused to prove his or her innocence;
(c) where double presumptions are applied, it has been held in Muhammed bin Hassan (supra)
that the burden on the appellants to rebut both presumptions on the
balance of probabilities is oppressive, unduly harsh, and unfair;
(d) section 37A offends the requirement of fairness housed under arts. 5 and 8 of the FC;
(e) the right in art. 5(1) is absolute and cannot be derogated;
(f)
the doctrine of proportionality does not form part of the common law of
England. It arose from the jurisprudence of the European Court of Human
Rights; and
(g) the Federal Court in PP v. Gan Boon Aun [2017] 4 CLJ 41; [2017] 3 MLJ 12 had erred in holding that the right to a fair trial and the presumption of innocence under art. 5 may be qualified by reference to the principle of proportionality.
[95] In response, the learned Deputy Public Prosecutor for the respondent submitted that:
(a) the right to a fair trial is implied in art. 5(1) of the FC;
(b)
there are exceptions to the general rule that the accused bears no onus
of proof, for there are limits to what the prosecution can reasonably
be expected to prove in certain situations;
(c) there is no prohibition on presumptions in principle, provided such presumptions satisfy the test of proportionality. (See: Gan Boon Aun (supra) and Ong Ah Chuan v. Public Prosecutor [1980] 1 LNS 181; [1981] 1 MLJ 64);
(d) even where double presumptions are invoked under s. 37A of the DDA, pursuant to s. 182A(1) of the Criminal Procedure Code the duty remains on the prosecution to prove its case beyond a reasonable doubt based on all adduced and admissible evidence;
(e)
the imposition of presumptions rebuttable by an accused on a balance of
probabilities strikes a balance between the public interest in curbing
crime and the protection of fundamental rights; and
(f) section 37A of the DDA, being of general application to all persons under like circumstances, does not offend the right to equality under art. 8 of the FC.
Article 5: '... In Accordance With Law'
[96] We begin by acknowledging that in interpreting any constitutional provision such as arts. 5 and 8 of the FC, certain principles must be borne in mind.
(a) Firstly, it is trite that a constitution is sui generis, governed by interpretive principles of its own.
(b)
Secondly, in the forefront of these interpretive principles is the
principle that its constitutional provisions should be interpreted
generously and liberally, not rigidly or pedantically. (See: Dato' Menteri Othman Baginda & Anor v. Dato' Ombi Syed Alwi Syed Idrus [1984] 1 CLJ 28; [1984] 1 CLJ (Rep) 98; [1981] 1 MLJ 29).
(c)
Thirdly, it is the duty of the courts to adopt a prismatic approach
when interpreting the fundamental rights guaranteed under Part II of the
FC, in order to reveal the spectrum of constituent rights submerged in
each article. (See: Lee Kwan Woh v. PP [2009] 5 CLJ 631; [2009] 5 MLJ 301 at para. [8]).
[97]Article 5(1) of the FC reads:
No person shall be deprived of his life or personal liberty save in accordance with law.
[98] In our view, art. 5(1)
is the foundational fundamental right upon which other fundamental
rights enshrined in the FC draw their support. Depriving a person of his
right under art. 5(1),
the consequence is obvious in that his other rights under the FC would
be illusory or unnecessarily restrained. In fact, deprivation of
personal liberty impacts on every other aspect of human freedom and
dignity. (See: Maneka Gandhi v. Union of India AIR 1978 SC 59). But at the same time art. 5(1)
is not all-encompassing and each right protected in Part II has its own
perimeters. Hence, the provisions of the FC should be read
harmoniously. Indeed the fundamental liberties provisions enshrined in
Part II of the FC are parts of a majestic, interconnected whole and not
each as lonely outposts.
[99] The importance of the right to life under art. 5 cannot be over-emphasised. In relation to the rights to life and dignity, the South African Constitutional Court in State v. Makwanyane [1995] 1 LRC 269 at para. [84] states:
Together
they are the source of all other rights. Other rights may be limited,
and may even be withdrawn and then granted again, but their ultimate
limit is to be found in the preservation of the twin rights of life and
dignity. These twin rights are the essential content of all rights under
the Constitution. Take them away, and all other rights cease.
[100]
Since the right to life is "the most fundamental of human rights", the
basis of any State action which may put this right at risk "must surely
call for the most anxious scrutiny" (per Lord Bridge in Bugdaycay v. Secretary of State for the Home Department [1987] AC 514 at p. 531). The courts' role is given added weight where the right to life is at stake.
[101]"Law", as defined in art. 160(2) of the Federal Constitution read with s. 66 of the Interpretation Acts 1948 and 1967, includes the common law of England. The concept of rule of law forms part of the common law of England. The "law" in art. 5(1)
and in other fundamental liberties provisions in the FC must therefore
be in tandem with the concept of rule of law and NOT rule by law. (See: Lee Kwan Woh (supra) at para. [16]; Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507; [2010] 2 MLJ 333 at para. [17]). (emphasis added).
[102]
It has been remarked that the phrase 'rule of law' has become
meaningless thanks to ideological abuse and general over-use. (See: H
Barnett, Constitutional and Administrative Law, 2nd edn. (London:
Cavendish Publishing, 1998) at p. 90). Different models of the rule of
law have been adopted in different jurisdictions. (See: V V Ramraj, "Four Models of Due Process"
in OUP and New York University School of Law 2004, I.CON Vol. 2, No. 3
at 492-524). It is perhaps opportune and necessary for us to outline
what is generally meant by the rule of law.
[103] A central tenet of the rule of law is the equal subjection of all persons to the ordinary law. (See: A V Dicey, An Introduction to the Study of the Law of the Constitution,
10th edn. (London: Macmillan, 1959) at p. 202). People should be ruled
by the law and be able to be guided by it. Thus, the law must be capable
of being obeyed.
[104]"Law" must therefore satisfy certain basic requirements, namely:
(a) it should be clear;
(b) sufficiently stable;
(c) generally prospective;
(d) of general application;
(e) administered by an independent Judiciary; and
(f) the principles of natural justice and the right to a fair trial are observed.
[105]
These requirements of "law" in a system based on the rule of law are by
no means exhaustive. While the precise procedural and substantive
content of the rule of law remains the subject of much academic debate,
there is a broad acceptance of the principles above as the minimum
requirements of the rule of law. (See: J Raz, The Rule of Law and its Virtue
(1977) 93 LQR 195; L Fuller, The Morality of Law (New Haven: Yale
University Press, 1964); T Bingham, The Rule of Law (London: Penguin
Books, 2011)).
[106] It is therefore clear that the "law"
in the proviso "save in accordance with law" does not mean just any law
validly enacted by Parliament. It does not authorise Parliament to enact
any legislation under art. 5(1)
contrary to the rule of law. While the phrase "in accordance with law"
requires specific and explicit law that provides for the deprivation of
life or personal liberty (see: In Re Mohamad Ezam Mohd Nor [2002] 5 CLJ 156;
[2001] 3 MLJ 372 at p. 378), nevertheless such law must also be one
that is fair and just and not merely any enacted law however arbitrary,
unfair, or unjust it may be. Otherwise that would be rule by law.
[107]
The "law" thereof also refers to a system of law that incorporates the
fundamental rules of natural justice that formed part and parcel of the
common law of England. And to be relevant in this country, such common
law must be in operation at the commencement of the FC. Further, any
system of law worthy of being called just must be founded on fundamental
values. "The law must be related to the... fundamental assessments of
human values and the purposes of society" (per Viscount Simonds, Shaw v. DPP
[1962] AC 220 at p. 268). As persuasively argued by Lord Bingham, the
rule of law requires that fundamental rights be protected, (see:
Bingham, The Rule of Law (London: Penguin Books, 2011 at pp.
66-68). It is also taken for granted that the "law" alluded to would not
flout those fundamental rules. As Lord Diplock stated in no weak terms,
to hold otherwise would render the purported entrenchment of
fundamental liberties provisions in the FC "little better than a
mockery". (See: Ong Ah Chuan (supra) at p. 670).
[108] We pause at this juncture to note that s. 37A of the DDA
begins with the phrase "notwithstanding any written law or rule of
law". For the avoidance of doubt, the words "rule of law" in s. 37A refer to implied ancillary rules, such as the rules of procedure or evidence. (See: FAR Bennion, Statutory Interpretation: A Code,
3rd ed. (London: Butterworths, 1997) at p. 805). It does not purport to
exclude the rule of law as a legal concept. If it were to be
interpreted otherwise then that would be a rule by law and could not be
within the ambit of the term 'law' in art. 5(1) of the FC
and hence unconstitutional. It must also be emphasised here that the
principle of the rule of law, being a constitutional fundamental, cannot
be abrogated by mere statutory words.
[109] Accordingly, art. 5(1)
which guarantees that a person shall not be deprived of his life or
personal liberty (read in the widest sense) save in accordance with law
envisages a State action that is fair both in point of procedure and
substance. In the context of a criminal case, the article enshrines an
accused's constitutional right to receive a fair trial by an impartial
tribunal and to have a just decision on the facts. (See: Lee Kwan Woh (supra) at para. [18]).
[110] It has been declared as well by this court that the fundamental principle of presumption of innocence, long recognised at common law, is included in the phrase "in accordance with law". (See: Gan Boon Aun (supra) at paras. [14]-[15]). Indeed, the presumption
of innocence is a "hallowed principle lying at the very heart of
criminal law", referable and integral to the right to life, liberty, and
security. (See: R v. Oakes [1986] 1 SCR 103 at para. [29]). The famous statement of Viscount Sankey LC in Woolmington v. Director of Public Prosecutions [1935] AC 462 at p. 481 is regularly quoted as a starting point in affirming the principle:
Throughout
the web of the English Criminal Law one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoner's
guilt subject to what I have already said as to the defence of insanity
and subject also to any statutory exception... No matter what the
charge or where the trial, the principle that the prosecution must
prove the guilt of the prisoner is part of the common law of England and
no attempt to whittle it down can be entertained. (emphasis added)
[111]
It is pertinent to note that Viscount Sankey's proviso of "any
statutory exception" was pronounced in the context of a legal system
based on Parliamentary sovereignty. Whereas in our jurisdiction, a
provision of law, although it may be in the form of a proviso, is not
rendered constitutionally valid if it "would subvert the very purpose of
the entrenchment of the presumption of innocence" in the FC. (See: R v. Oakes (supra)
at para. [39]). As such, in determining its constitutionality the
substantive effect of a statutory exception must be considered.
[112] Yet at the same time, it must also be taken into account that despite the fundamental importance of the presumption
of innocence, there are situations where it is clearly sensible and
reasonable to allow certain exceptions. For instance, a shift on onus of
proof to the defence for certain elements of an offence where such
elements may only known to the accused. But it is not to say that in
such instance the prosecution is relieved of its burden to establish the
guilt of an accused beyond reasonable doubt. In other words, it is
widely recognised that the presumption of innocence is subject to implied limitations. (See: Attorney-General of Hong Kong v. Lee Kwong-Kut
[1993] AC 951 at p. 968). A degree of flexibility is therefore required
to strike a balance between the public interest and the right of an
accused person.
[113] In State v. Coetzee [1997] 2
LRC 593 the South African Constitutional Court speaking through Sachs J
provided clear justification on the need to do the balancing enquiry
between safeguarding the constitutional rights of an individual from
being 'convicted and subjected to ignominy' and heavy sentence and 'the
maintenance of public confidence in the enduring integrity and security
of the legal system'. Reference to the prevalence and severity of a
certain crime therefore does not add anything new or special to the
balancing exercise. The perniciousness of the offence is one of the
givens, against which the presumption
of innocence is pitted from the beginning, not a new element to be put
into scales as part of the justificatory balancing exercise. If this
were not so, the ubiquity and ugliness argument could be used in
relation to murder, rape, car-jerking, housebreaking, drug-smuggling,
corruption... the list is unfortunately almost endless, and nothing
would be left of the presumption of innocence, save, perhaps, for its relics status as a doughty defender of rights in the most trivial of cases'.
[114] Hence, this is where the doctrine of proportionality under art. 8(1) becomes engaged.
[115] But before we deal with art. 8(1) in relation to the proportionality test, it is perhaps apposite to note here that in Muhammed bin Hassan (supra) this court held that to read the presumption of possession in sub-s. 37(d) "into ss. 37(da) so as to invoke against an accused a further presumption of trafficking (ie presumption upon presumption) would not only be ascribing to the phrase 'found in possession' in s. 37(da) a meaning wider than it ordinarily bears but would
also be against the established principles of construction of penal
statutes and unduly harsh and oppressive against the accused. (emphasis added).
[116] Meanwhile, when enacting s. 37A, Parliament did not find it necessary to amend the wordings of sub-s. 37(da) in particular the word 'found' therein. As such, the view given by this court on the word 'found' in Muhammed bin Hassan (supra) is still valid.
Article 8 And The Doctrine Of Proportionality
[117] When interpreting other provisions in the FC, the courts must do so in light of the humanising and all-pervading provision of art. 8(1). (See: Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19; [2006] 6 MLJ 213 at para. [8], approved in Badan Peguam Malaysia v. Kerajaan Malaysia [2008] 1 CLJ 521; [2008] 2 MLJ 285 at para. [86]; Lee Kwan Woh (supra) at para. [12]). Article 8(1) guarantees fairness in all forms of State action. (See: Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771; [1996] 1 MLJ 261). The essence of the article was aptly summarised in Lee Kwan Woh (supra) at para. [12]:
The effect of art 8(1)
is to ensure that legislative, administrative and judicial action is
objectively fair. It also houses within it the doctrine of
proportionality which is the test to be used when determining whether
any form of state action (executive, legislative or judicial) is
arbitrary or excessive when it is asserted that a fundamental right is
alleged to have been infringed.
[118] In other words, art. 8(1)
imports the principle of substantive proportionality. "Not only must
the legislative or executive response to a state of affairs be
objectively fair, it must also be proportionate to the object sought to
be achieved". (See: Dr Mohd Nasir bin Hashim v. Menteri Dalam Negeri Malaysia (supra) at para. [8]. The doctrine of proportionality housed in art. 8(1) was lucidly articulated in Sivarasa Rasiah (supra) at para. [30]:
...
all forms of state action - whether legislative or executive - that
infringe a fundamental right must (a) have an objective that is
sufficiently important to justify limiting the right in question; (b)
the measures designed by the relevant state action to meet its objective
must have a rational nexus with that objective; and (c) the means used
by the relevant state action to infringe the right asserted must be
proportionate to the object it seeks to achieve.
[119]
Accordingly, when any State action is challenged as violating a
fundamental right, such as the right to life or personal liberty under art. 5(1), art. 8(1) will at once be engaged such that the action must meet the test of proportionality. This is the point at which arts. 5(1) and 8(1) interact. (See: Sivarasa Rasiah (supra) at paras. [17]-[19]).
[120]
This approach is consistent with that adopted in other Commonwealth
jurisdictions. Proportionality is an essential requirement of any
legitimate limitation of an entrenched right. Proportionality calls for
the balancing of different interests. In the balancing process, the
relevant considerations include the nature of the right, the purpose for
which the right is limited, the extent and efficacy of the limitation,
and whether the desired end could reasonably be achieved through other
means less damaging to the right in question. (See: State v. Makwanyane [1995] 1 LRC 269 at p. 316).
[121] The United Kingdom position based on the leading cases of R v. Lambert [2001] UKHL 37, R v. Johnstone [2003] UKHL 28, and Sheldrake v. Director of Public Prosecutions; Attorney General's Reference (No 4 of 2002) [2005] 1 All ER 237 was helpfully distilled in Gan Boon Aun (supra) at para. [46] as thus:
(a) presumptions of fact or of law operate in every legal system;
(b) it is open to states to define the constituent elements of an offence, even to exclude the requirement of mens rea;
(c) when a section is silent as to mens rea, there is a presumption that mens rea is an essential ingredient: The more serious the crime, the less readily will that presumption be displaced;
(d) the overriding concern is that a trial should be fair: The presumption of innocence is a fundamental right directed to that end;
(e) there
is no prohibition against presumptions in principle, but the principle
of proportionality must be observed. A balance must be struck between
the general interest of the community and the protection of fundamental
rights. The substance and effect of presumptions adverse to an accused
must not be greater than is necessary and must be reasonable;
(f)
the test to be applied is whether the modification or limitation
pursues a legitimate aim and whether it satisfies the principle of
proportionality;
(g) reasonable limits take into account the importance of what is at stake and maintain the rights of the defence;
(h)
the mischief at which the Act is aimed and the ease or difficulty that
the respective parties would encounter in discharging the burden are
important factors;
(i) it is justified to make it for an accused
to prove matters which the prosecution would be highly unlikely to be
able to know and which it might be difficult, if not impossible for them
to rebut;
(j) relevant to reasonableness or proportionality will be the opportunity given to a defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption,
retention by the court of a power to assess the evidence, the
importance of what is at stake and the difficulty which a prosecutor may
face in the absence of a presumption;
(k) the test depends upon the circumstances of the individual case. The justifiability of any infringement of the presumption
of innocence cannot be resolved by any rule of thumb, but on
examination of all the facts and circumstances of the particular
provision as applied in the particular case;
(l) the task of the
court is never to decide whether a reverse burden should be imposed on a
defendant, but always to assess whether a burden enacted by Parliament
unjustifiably infringes the presumption of innocence; and
(m) security concerns do not absolve member states from their duty to observe basic standards of fairness. (emphasis added)
[122]
The doctrine of proportionality was likewise implicit in the Hong Kong
approach to statutory presumptions in criminal law. Referring to
statutory exceptions to the presumption of innocence, the Privy Council explained in Lee Kwong-Kut (supra) at pp. 969-970:
Some
exceptions will be justifiable, others will not. Whether they are
justifiable will in the end depend upon whether it remains primarily the
responsibility of the prosecution to prove the guilt of an accused to
the required standard and whether the exception is reasonably imposed,
notwithstanding the importance of maintaining the principle which
article 11(1) enshrines. The less significant the departure from the
normal principle, the simpler it will be to justify an exception. If the
prosecution retains responsibility for proving the essential
ingredients of the offence, the less likely it is that an exception will
be regarded as unacceptable. In deciding what are the essential
ingredients, the language of the relevant statutory provision will be
important. However what will be decisive will be the substance and
reality of the language creating the offence rather than its form. If
the exception requires certain matters to be presumed until the contrary
is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary v. United States
[1969] 23 L. Ed. 2d 57, 82, 'it can at least be said with substantial
assurance that the presumed fact is more likely than not to flow from
the proved fact on which it is made to depend.' (emphasis added)
[123] Useful guidance can also be gleaned from the case of R v. Oakes (supra).
The Canadian Supreme Court held that, in general, "a provision which
requires an accused to disprove on a balance of probabilities the
existence of a presumed fact, which is an important element of the
offence in question, violates the presumption
of innocence", at para. [57]. The fact that the standard required to
disprove the presumed fact is only on the balance of probabilities does
not render the reverse onus clause constitutional, at para. [58].
[124] Be that as it may, a provision which violates the presumption
of innocence may still be upheld if it is a reasonable limit,
prescribed by law and demonstrably justified in a free and democratic
society. In this exercise, the Canadian Supreme Court in R v. Oakes (supra ) elaborated on the two central criteria that must be satisfied, at paras. [69]-[70]:
(i)
The objective must be of sufficient importance to warrant overriding a
constitutionally protected right. The objective must relate to pressing
and substantial concerns;
(ii) The means chosen to achieve the objective must be reasonable and demonstrably justified, in that:
(a) the measure must be rationally connected to the objective;
(b) the right in question must be impaired as little as possible; and
(c) the effect of the measure must be proportionate to the objective.
[125] It is clear therefore from the local and foreign authorities above that the presumption
of innocence is by no means absolute. However, as discussed above,
derogations or limits to the prosecution's duty to prove an accused's
guilt beyond a reasonable doubt are carefully circumscribed by reference
to some form of proportionality test. We consider that the application
of the proportionality test in this context strikes the appropriate
balance between the competing interests of an accused and the State.
(See: Gan Boon Aun (supra) ).
[126] It is notable that the doctrine of proportionality and the all-pervading nature of art. 8
form part of the common law of Malaysia, developed by our courts based
on a prismatic interpretation of the FC without recourse to case law
relating to the European Convention of Human Rights. As such, we are
therefore of the view that the appellants' assertion that art. 5
confers an absolute right upon an accused to be presumed innocent until
proven guilty and not subject to the doctrine of proportionality while
disregarding art. 8, is unsupported by authority and without basis.
[127] To summarise, the following principles may be discerned from the above authorities:
(i) Article 5(1) embodies the presumption of innocence, which places upon the prosecution a duty to prove the guilt of the accused beyond a reasonable doubt.
(ii) The presumption of innocence is not absolute. A balance must be struck between the public interest and the right of an accused - art. 8(1).
(iii) A statutory presumption
in a criminal law, which places upon an accused the burden of
disproving a presumed fact, must satisfy the test of proportionality
under art. 8(1). The substance and effect of the presumption must be reasonable and not greater than necessary.
(iv) The test of proportionality comprises three stages:
(a) there must be a sufficiently important objective to justify in limiting the right in question;
(b) the measure designed must have a rational nexus with the objective; and
(c) the measure used which infringes the right asserted must be proportionate to the objective.
(v) Factors relevant to the proportionality assessment include, but are not limited to, the following:
(a) whether the presumption relates to an essential or important ingredient of the offence;
(b) opportunity for rebuttal and the standard required to disprove the presumption; and
(c) the difficulty for the prosecution to prove the presumed fact.
(vi) A significant departure from the presumption of innocence would call for a more onerous justification.
The Constitutionality Of s. 37A
[128]Section 37A was legislated to permit the invocation of the two presumptions yet there was no amendment to the wording in sub-s. 37(da). As we have earlier noted, the Federal Court had held in Muhammed Hassan (supra) that based on the clear and unequivocal meaning of the statutory wording, "deemed possession" under sub-s. 37(d) cannot be equated to "found possession" so as to invoke the presumption of trafficking under sub-s. 37(da). To do so would be contrary to the ordinary meaning of the statutory language. As such, despite the insertion of s. 37A,
a plain reading of the wording in sub-ss. (d) and (da) does not permit
the concurrent application of both the said presumptions in the
prosecution of a drug trafficking offence.
[129] Anyway, even if Parliament had amended the wording in sub-s. (da) in accordance with the judgment in Muhammed Hassan (supra),
the fundamental question of constitutionality remains. It is for the
court to determine whether the substance and effect of the legislation
in permitting the use of double presumptions is in line with the
fundamental liberties provisions of the FC. It is to this central issue
that we now turn.
[130] We now consider the presumption
of innocence and the impact of the said section in relation to the
relevant principles on proportionality test. But before doing so we keep
in the forefront of our minds that where the constitutionality of a
provision is challenged, there is a presumption
in favour of constitutionality and the burden rests on the party
seeking to establish that the provision is unconstitutional. (See: Public Prosecutor v. Datuk Harun Haji Idris & Ors [1976] 1 LNS 180; [1976] 2 MLJ 116, Public Prosecutor v. Su Liang Yu [1976] 1 LNS 113; [1976] 2 MLJ 128, Public Prosecutor v. Pung Chen Choon [1994] 1 LNS 208; [1994] 1 MLJ 566, Ooi Kean Thong & Anor v. PP [2006] 2 CLJ 701; [2006] 3 MLJ 389, Gan Boon Aun (supra) ).
[131] Meanwhile for clarity, the appellants' challenge to the constitutionality of s. 37A is only in relation to the application of a presumption in addition to or in conjunction with another presumption. The constitutionality of a single presumption under sub-ss. 37(d) or (da) is not challenged in the present appeals. Hence, we are not addressing it as an issue before us.
Nature Of Presumptions
[132] To determine the effect of s. 37A, it is helpful first to consider generally the nature of presumptions. A true presumption
takes effect when, upon the proof of one fact (the basic fact), the
existence of another fact (presumed fact) is assumed in the absence of
further evidence. (See: C Tapper, Cross & Wilkins Outline of the Law of Evidence, 6th edn. (London: Butterworths, 1986) at p. 39). "The usual purpose of a presumption is to ease the task of a party who can adduce some evidence which is relevant to, but not necessarily decisive of, an issue" (ibid).
[133]
Presumptions can be categorised into presumptions of law or
presumptions of fact. The former involves actual legal rules, whereas
the latter are no more than frequently recurring examples of
circumstantial evidence. (See: R v. Oakes (supra) at para. [20]).
It is often true that "presumptions of law are nothing else than
natural inferences or presumptions of fact which the law invests with an
artificial or preternatural weight". (See: C Tapper, Cross & Tapper on Evidence, 12th edn. (Oxford: OUP, 2013) at p. 135).
[134] Such is the case with the two presumptions in question in these appeals. For the presumption under sub-s. 37(d),
a person's custody or control of a thing containing a dangerous drug,
proved as a fact, (the basic fact) is relevant to, but not decisive of,
his possession and knowledge of the dangerous drug which need not be
proved but merely deemed (the presumed fact).
[135] As for the presumption under sub-s. 37(da),
a person "found" (which denotes the need first for an affirmative
finding based on the evidence adduced) to be in possession of drugs
exceeding a stipulated weight has a logical bearing on the inference of
trafficking.
[136] The presumptions are largely a matter of logical inference. Indeed, even without the statutory presumption under sub-s. 37(da),
a person caught in the act of conveying a quantity of drugs much larger
than is likely to be needed for his own consumption would give rise to
an irresistible inference that he was transporting them for the purpose
of trafficking, in the absence of any plausible alternative explanation.
(See: Ong Ah Chuan (supra) at p. 667; s. 2 of the DDA ).
[137] The presumptions in s. 37
are rebuttable. The phrase "until the contrary is proved imposes a
legal burden on an accused to prove on a balance of probabilities that
he was not in possession and had no knowledge of the drug (sub-s. 37(d) ), or that he was not in possession up to the statutory limit in weight of the drug for the purpose of trafficking (sub-s. 37(da) ) (See: R v. Oakes (supra) at para. [24]). The weight of evidence required to rebut the presumption
would depend on the circumstances of each case. For instance, as a
matter of common sense, the larger the quantity of the drugs involved
the stronger the inference that it was intended for the purpose of
trafficking and thus the more convincing the evidence needed to rebut
it. (See: Ong Ah Chuan (supra) at 668).
[138] The
word "shall" in both subsections indicates that each of the presumptions
is mandatory in nature. However, the word "may" in s. 37A
suggests that the cumulative use of double or multiple presumptions is
discretionary. But, just because it is discretionary, it does not ipso facto escape a constitutionality scrutiny.
[139] The effect of s. 37A on the operation of the two presumptions is therefore as follows:
(a)
once the prosecution proves that an accused had the custody and control
of a thing containing a dangerous drug, the accused is presumed to have
possession and knowledge of the drug under sub-s. 37(d). The 'deemed possession', presumed by virtue of sub-s. 37(d), is then used to invoke a further presumption of trafficking under sub-s. 37(da), if the quantity of the drug involved exceeds the statutory weight limit.
(b) section 37A thus permits a "presumption upon a presumption" (as aptly described in Muhammad bin Hassan (supra) at p. 291).
(c) as such, for a charge of drug trafficking, all that is required of the prosecution to establish a prima facie
case
is to prove custody and control on the part of the accused and the
weight of the drug. The legal burden then shifts to the accused to
disprove the presumptions of possession and knowledge (sub-s. 37(d) ) and trafficking (sub-s. 37(da) ) on a balance of probabilities.
[140] As to the legal burden upon an accused to rebut a presumption and the risk attached to it, the case of R v. Whyte [1988] 51 DLR (4th) 481 at p. 493 (in a passage adopted by Lord Steyn in R v. Lambert (supra) at para. [37]) is instructive. Dickson CJ said this:
The
real concern is not whether the accused must disprove an element or
prove an excuse, but that an accused may be convicted while a reasonable
doubt exists. When that possibility exists, there is a breach of the presumption
of innocence. The exact characterisation of a factor as an essential
element, a collateral factor, an excuse, or a defence should not affect
the analysis of the presumption of
innocence. It is the final effect of a provision on the verdict that is
decisive. If an accused is required to prove some fact on the balance of
probabilities to avoid conviction, the provision violates the presumption
of innocence because it permits a conviction in spite of a reasonable
doubt in the mind of the trier of fact as to the guilt of the accused.
[141] Hence, for the above reasons, we are of the view that s. 37Aprima facie violates the presumption of innocence since it permits an accused to be convicted while a reasonable doubt may exist.
[142] Next to consider is whether the incursion into the presumption of innocence under art. 5(1) satisfies the requirement of proportionality housed under art. 8(1).
Proportionality And Section 37A
[143]
The first stage in the proportionality assessment is to establish
whether there is a sufficiently important objective to justify the
infringement of the right, in this case the right to presumption of innocence. The legislative objective in inserting s. 37A
is to overcome the problem of the prosecution failing to prove the
element of trafficking as defined in the DDA. Drug trafficking has been a
major problem in the country. It needs to be curbed. One way is to
secure convictions of drug traffickers which can be considered a
sufficiently important objective and one which is substantial and
pressing.
[144] The second stage of the inquiry is to
consider whether the means designed by Parliament has a rational nexus
with the objective it is intended to meet. The effect of s. 37A,
as elaborated above, is to shift the burden of proof to an accused on
the main elements of possession, knowledge, and trafficking, provided
that the prosecution establishes first the relevant basic facts. It is
at least arguable that the resulting ease of securing convictions is
rationally connected to the aim of curbing the vice of drug trafficking.
Bearing in mind that the validity of individual presumptions is not in
issue in the present appeals, it is not necessary for us to analyse the
rational connection between custody and control on one hand and
possession and knowledge on another, or the connection between
possession and trafficking. (See: R v. Oakes (supra) at para. [78]).
[145]
The third stage of the inquiry requires an assessment of
proportionality. It must be emphasised any restriction of fundamental
rights does not only require a legitimate objective, but must be
proportionate to the importance of the right at stake.
[146] The presumptions under sub-ss. 37(d) and (da)
relate to the three central and essential elements of the offence of
drug trafficking, namely, possession of a drug, knowledge of the drug,
and trafficking. We have already discussed this point earlier in this
judgment. The actual effect of the presumptions is that an accused does
not merely bear an evidential burden to adduce evidence in rebuttal of
the presumptions. Once the essential ingredients of the offence are
presumed, the accused is placed under a legal burden to rebut the
presumptions on a balance of probabilities. In our view, it is a grave
erosion to the presumption of innocence housed in art. 5(1) of the FC.
[147] But the most severe effect, tantamount to being harsh and oppressive, arising from the application of a "presumption upon a presumption" is that the presumed element of possession under sub-s. 37(d) is used to invoke the presumption of trafficking under sub-s. 37(da) without any consideration that the element of possession in sub-s. 37(da)
requires a 'found' possession and not a 'deemed' possession. The phrase
'any person who is found in possession of' entails an affirmative
finding of possession based on adduced evidence. (See: Mohammed bin Hassan (supra) ).
[148]Section 37A was legislated to facilitate the invocation of the two presumptions yet there was no amendment to sub-s. 37(da). As such and as discussed earlier on in this judgment, to invoke a presumption
of trafficking founded not on proof of possession (which currently the
subsection demands) but on presumed possession based on proof of mere
custody and control, would constitute a grave departure from the general
rule that the prosecution is required to prove the guilt of an accused
beyond a reasonable doubt.
[149] Further, the application
of what may be termed the "double presumptions" under the two
subsections gives rise to a real risk that an accused may be convicted
of drug trafficking in circumstances where a significant reasonable
doubt remains as to the main elements of the offence. In such
circumstance, it cannot be said that the responsibility remains
primarily on the prosecution to prove the guilt of the accused beyond a
reasonable doubt.
[150] Based on the factors above - the
essential ingredients of the offence, the imposition of a legal burden,
the standard of proof required in rebuttal, and the cumulative effect of
the two presumptions - we consider that s. 37A
constitutes a most substantial departure from the general rule, which
cannot be justified and disproportionate to the legislative objective it
serves. It is far from clear that the objective cannot be achieved
through other means less damaging to the accused's fundamental right
under art. 5.
In light of the seriousness of the offence and the punishment it
entails, we find that the unacceptably severe incursion into the right
of the accused under art. 5(1) is disproportionate to the aim of curbing crime, hence fails to satisfy the requirement of proportionality housed under art. 8(1).
[151] Accordingly, we hold that s. 37A is unconstitutional for violating art. 5(1) read with art. 8(1) of the FC. The impugned section is hereby struck down.
[152] Having struck down s. 37A of the DDA,
the question now is to determine the position of the appellants. The
learned trial judges in these two appeals invoked both the presumptions
in finding the guilt of the appellants. Since there was no challenge to
the use of a single presumption in these appeals, we are of the view that the invocation of sub-s. 37(d) by the learned trial judges did not cause any miscarriage of justice to the detriment of the appellants.
[153] Hence, we hereby quash the convictions and sentences of both the appellants under s. 39B of the DDA.
As we have no reasonable doubt on the guilt of the appellants for
possession of the drugs based on the evidence adduced, we hereby
substitute their respective convictions to one of possession under s. 12(1) and punishable under s. 39A(2) of the DDA.
[2019] 1 LNS 437
