PUTRAJAYA: The Federal Court has clarified the application of a statutory presumption of knowledge in drug-trafficking cases, ruling that it can apply when drugs are found inside a bag under an accused’s custody and control.
The decision came as a three-member bench chaired by Justice Abu Bakar Jais, with Justices Ruzima Ghazali and Azimah Omar, dismissed the appeal by former lorry driver Ahmad Fahmi Hasnu against his conviction for trafficking 1.46kg of methamphetamine, commonly known as syabu.
In delivering the judgment, Ruzima said the central issue was whether Section 37(d) of the Dangerous Drugs Act 1952 could be invoked when the drugs were found in a bag inside a car used by the accused.
Fahmi argued that a car was not a “container” within the meaning of the provision and that the prosecution had to prove his knowledge of the drugs through evidence rather than rely on a statutory presumption.
However, the Federal Court found that the drugs were inside a black backpack on the rear seat of the Perodua Myvi he was using.
Police officers had seen him opening the rear door and reaching towards the bag when they approached him during an operation in Seri Kembangan.
The distinction is legally significant as the court’s reasoning focused on the bag containing the drugs and the accused’s custody and control of it, rather than treating the mere presence of drugs somewhere in a vehicle as sufficient to invoke the presumption.
Section 37(d) provides that a person who has custody or control of anything containing dangerous drugs is presumed to possess the drugs and knows their nature, unless the contrary is proved.
Fahmi, 39, claimed the bag might have belonged to his brother-in-law or the latter’s friend. The courts found that he had failed to rebut the presumption.
The Federal Court upheld the conviction and the 30-year prison sentence imposed by the High Court and affirmed by the Court of Appeal. Fahmi was also ordered to receive 12 strokes of the rotan, the minimum punishment applicable to him as he is below 50.
He was convicted of trafficking 1,464.5g of methamphetamine at an apartment in Taman Pinggiran Putra, Seri Kembangan, at about 6.45pm on Oct 8, 2020.
Deputy public prosecutor Zain Ibrahim appeared for the prosecution, while Affifuddin Ahmad Hafifi and Aina Melina Johan Ariff represented Fahmi.