Drug Pushers Rejoice - Court Ruling Makes Their Prosecution Much More Difficult.
I think the prosecution has to bear a large part of the blame for this ruling, with shoddy investigations and half-hearted efforts to present the case in court, probably in the false belief that since it is a drug case the benefit of the doubt will be given to the 'good guys' and not drug dealers. However the Court of Appeal has once again demonstrated that it is on the side of justice for all and is not dictated by emotions and sentiment.
As much as drug dealers are the dangerous criminals of society, proper procedures must be followed even for this scum. Although they have a little respite now with this ruling, I hope that all drug dealers will ultimately ROT in hell. Also more serious effort must be put in to confiscate substantial properties of these criminals and not like the present peanuts.
The prosecution in a drug trafficking case, will now have to prove the essential element of actual delivery of the drug with the physical handing over the price in exchange, the Court of Appeal said.
The court, in a written judgement made available Tuesday, held that a mere agreement to buy or sell drugs is not an act of trafficking within section 39B(1)(a) of the Dangerous Drugs Act 1952. Applying the strict construction approach, section 2 of the act does not employ the expressions of "agreement to sell" or "agreement to buy" to fall within the definition of trafficking, ruled the court.
The Appeal Court, led by Justice Datuk Gopal Sri Ram, delivered the judgement yesterday in allowing the appeal by a contract worker Saari Jusoh who was sentenced to death by the High Court in 1995 for trafficking. The court set aside the death sentence and substituted it with 20 years imprisonment and 12 strokes of rotan.
Saari was charged with trafficking 3,686 grams of cannabis at a money changer's booth at Jalan Tun Abdul Razak in Johor Baharu at about 11.45pm on Sept 8, 1991. He had been in prison since Sept 8, 1991.
Justice Sri Ram, in his written judgement said that the transaction of trafficking must have been completed. "With respect, a "buying" transaction is not complete when an offer is made and accepted. In such a case, all that has happened is that an agreement to sell has been concluded. And that is something that the act does not encompass in the section 2 definition of trafficking. "Anything short of this is insufficient on instant facts as it would admit a more lenient, a more flexible approach to the construction of a penal statute. And that is impermissible," he said.
Doing negotiations for a sale also do not amount to the offence of trafficking under section 39B(1)(a), said the judge.
Saari was arrested in an ambush by police officers on the day when he was supposed to sell the drugs to a police detective who acted as an agent provocateur. At a meeting between Saari and the agent, an agreement was reached that he would sell and the agent would buy four kg of cannabis for a sum of RM6,000. On the agreed day, Saari went to the meeting point, carrying a plastic bag and stop at a money changer's shop which he placed the bag on the ground. He then went to meet the agent and asked him to pick up the bag. The agent made pre-arranged signal and police officers ambushed the scene and arrested Saari.
Justice Sri Ram, in his judgement said that the crucial question in this case was whether there had been a sale of the drug by the appellant to the agent. "We are satisfied that the evidence of the prosecution put at its highest merely established an agreement to sell the drug but not an actual selling of that drug." He said that a completed transaction did not take place because the trap was sprung too early. "It follows from what we have said that the conviction for trafficking cannot stand. However there is abundant evidence that the appellant had actual possession of the drug.
"In these circumstances we have no alternative but to quash the conviction under section 39B (1) and substitute it with a conviction under section 12 read with section 39A (2) of the act," he said.
Saari was represented by counsel Karpal Singh and Gobind Singh Deo, while Deputy Public Prosecutor Wong Chiang Kiat appeared for the government.
As much as drug dealers are the dangerous criminals of society, proper procedures must be followed even for this scum. Although they have a little respite now with this ruling, I hope that all drug dealers will ultimately ROT in hell. Also more serious effort must be put in to confiscate substantial properties of these criminals and not like the present peanuts.
The prosecution in a drug trafficking case, will now have to prove the essential element of actual delivery of the drug with the physical handing over the price in exchange, the Court of Appeal said.
The court, in a written judgement made available Tuesday, held that a mere agreement to buy or sell drugs is not an act of trafficking within section 39B(1)(a) of the Dangerous Drugs Act 1952. Applying the strict construction approach, section 2 of the act does not employ the expressions of "agreement to sell" or "agreement to buy" to fall within the definition of trafficking, ruled the court.
The Appeal Court, led by Justice Datuk Gopal Sri Ram, delivered the judgement yesterday in allowing the appeal by a contract worker Saari Jusoh who was sentenced to death by the High Court in 1995 for trafficking. The court set aside the death sentence and substituted it with 20 years imprisonment and 12 strokes of rotan.
Saari was charged with trafficking 3,686 grams of cannabis at a money changer's booth at Jalan Tun Abdul Razak in Johor Baharu at about 11.45pm on Sept 8, 1991. He had been in prison since Sept 8, 1991.
Justice Sri Ram, in his written judgement said that the transaction of trafficking must have been completed. "With respect, a "buying" transaction is not complete when an offer is made and accepted. In such a case, all that has happened is that an agreement to sell has been concluded. And that is something that the act does not encompass in the section 2 definition of trafficking. "Anything short of this is insufficient on instant facts as it would admit a more lenient, a more flexible approach to the construction of a penal statute. And that is impermissible," he said.
Doing negotiations for a sale also do not amount to the offence of trafficking under section 39B(1)(a), said the judge.
Saari was arrested in an ambush by police officers on the day when he was supposed to sell the drugs to a police detective who acted as an agent provocateur. At a meeting between Saari and the agent, an agreement was reached that he would sell and the agent would buy four kg of cannabis for a sum of RM6,000. On the agreed day, Saari went to the meeting point, carrying a plastic bag and stop at a money changer's shop which he placed the bag on the ground. He then went to meet the agent and asked him to pick up the bag. The agent made pre-arranged signal and police officers ambushed the scene and arrested Saari.
Justice Sri Ram, in his judgement said that the crucial question in this case was whether there had been a sale of the drug by the appellant to the agent. "We are satisfied that the evidence of the prosecution put at its highest merely established an agreement to sell the drug but not an actual selling of that drug." He said that a completed transaction did not take place because the trap was sprung too early. "It follows from what we have said that the conviction for trafficking cannot stand. However there is abundant evidence that the appellant had actual possession of the drug.
"In these circumstances we have no alternative but to quash the conviction under section 39B (1) and substitute it with a conviction under section 12 read with section 39A (2) of the act," he said.
Saari was represented by counsel Karpal Singh and Gobind Singh Deo, while Deputy Public Prosecutor Wong Chiang Kiat appeared for the government.
posted by The Malaysian. at 8/15/2006 06:49:00 PM
3 Comments:
For purposes of completeness, your analysis should incorporate an angle on the number of idiotic tourists who come to Southeast Asia for three-month long holidays, pack a commensurate quantity of pot, and were subsequently arrested and charged for trafficking on the basis of possession alone.
There are certain merits to requiring something a little more than mere possession before allaying the death penalty for trafficking. Having said that, I'm sure many would agree that possession should still be considered a major crime, and thus carry appropriate penalties.
If you are going to look for a black spot in a white piece of paper you are definitely going to find it(real or illusory) and give a judgement against the prosecution.
I have had cases where the overwhelming evidence pointed to the guilt of the accused and a thorough Investigating officer, yet the prosecutor has his own opinion of the case and whether it will stand up in court or will it open up more attacks from the defence.
At the end of the day even themost commited IOs lose the spirit to carry on. Is there a reason why less cases are being brought to court or speedy judgement executed ?
Actually this is nothing new. There has been lots of allegations regarding the integrity of investigations by the police as well as the break in the chain of evidence. This probably worked in the mind of the judges.
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