Jazlie Bin Jaafar v Pendakwa Raya (05-79-04/2017(W) & 05-78-04/2017(W))

(a) Jazlie was in possession of the drugs;

(b) The minimum weight of the dangerous drugs was sufficient to trigger the statutory presumption; and 20

(c) Jazlie did not have authority under the DDA or any other written law to be in possession of the drugs. 7 [7] In support of his submission, learned counsel relied on PP v. Tan Tatt Eek & Other Appeals [2005] 1 CLJ 713, FC where in her separate judgment, Siti Norma Yaakob FCJ said: 5 “However to invoke the presumption of trafficking under subsection (da) in order to establish a prima facie case of trafficking under s. 39B(1) of the Act at the close of the prosecution case, all that needs to be introduced at the trial is sufficient evidence to establish:

(a) sells or exposes for sale by retail any intoxicating liquor without holding a justices' 10 licence or canteen licence authorising him to hold an excise licence for the sale of that liquor, or

(b) holding a justices' licence or a canteen licence sells or exposes for sale by retail any 15 intoxicating liquor except at the place for which that licence authorizes him to hold an excise licence for the sale of that liquor, he shall be guilty of an offence under this section.” 20 The prosecution did not call any evidence to prove that the Defendant did not have a licence. The main ground of the Defendant’s appeal was that the burden was on the prosecution to prove that the Defendant did not have a licence. The Court of Appeal in England held that there was an exception to the 25 14 fundamental rule of criminal law that the prosecution had to prove every element of the offence charged, which was limited to offences under enactments which prohibited the doing of an act but subject to provisoes or exemption. The Court of Appeal further held that if, on the true construction of an enactment, it 5 prohibited the doing of a certain act, save in specified circumstances, it was not for the prosecution to prove a prima facie case of lack of excuse or qualification, for, the onus of proof shifted and it was for the accused person to prove that he is entitled to do the prohibited act. In this regard delivering the 10 judgment of the Court Lawton L.J. said: "In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the 15 community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is 20 limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the 25 15 prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception. 5 In our judgment its application does not depend upon either the fact or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. As Wigmore pointed out in his great 10 Treatise on Evidence (1905), volume 4, page 3525, this concept of peculiar knowledge furnishes no working rule. If it did, defendants would have to prove lack of intent. What does provide a working rule is what the common law evolved from a rule of pleading. We have striven to identify 15 it in this judgment. Like nearly all rules it could be applied oppressively; but the courts have ample powers to curb and discourage oppressive prosecutors and do not hesitate to use them. 20 Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation upon an enactment being construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or 25 the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal or, as it is sometimes 16 called, the persuasive burden of proof. It is not the evidential burden." [15] The burden of proof in relation to statutory exceptions came for consideration of the House of Lords again in R v. Hunt (Richard) 5 [1987] A.C 352. The House of Lords considered a long line of authorities relevant to the subject including Rex v. Oliver [1944], Rex v. Turner [1816] 5 M & S and R v. Edwards (supra) and held that that the burden of proving the guilt of an accused was on the prosecution save in the case of the defence of insanity and subject to any 10 statutory exception; that such exception might be express or implied and the burden of proof might be placed on the accused whether the exception appeared in the same clause of the instrument in question as that creating the offence or in a subsequent proviso and whether the offence was triable summarily or on indictment and would be 15 discharged on the balance of probabilities; and that where a linguistic construction did not indicate clearly on whom the burden of proof should lie the court might look to other considerations to determine the intention of Parliament such as the mischief at which the provision was aimed and practical considerations such as, in particular, the ease or difficulty 20 for the respective parties of discharging the burden of proof. In R v. Hunt, the appellant referred to the following passage in the speech of 17 Viscount Sankey L.C in Woolmington v. Director of Public Prosecution [1935] A.C. 462, at page 481 – 482: “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the 5 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.” The appellant argued that in using the phrase “any statutory exception” 10 Lord Sankey L.C. was referring to statutory exceptions in which Parliament had by the use of express words place the burden of proof on the accused, in the same way as the judges in M’Naghten’s Case [1843] 10 CI & Fin. 200, had expressly placed the burden of proving insanity upon the accused. In response to that argument, in his 15 judgment, Lord Griffiths said: “I would summarise the position thus far by saying that Woolmington [1935] A.C. 462 did not lay down a rule that the burden of proving a statutory defence only lay 20 upon the defendant if the statute specifically so provided: that a statute can, on its true construction, place a burden of proof on the defendant although it does not do so expressly: that if a burden of proof is placed on the defendant it is the same burden whether the 25 18 case be tried summarily or on indictment, namely, a burden that has to be discharged on the balance of probabilities.” [16] Regarding the contention of the appellant that R v. Edwards (supra) was wrongly decided by the Court of Appeal, Lord Griffiths held 5 that R v. Edwards (supra) was rightly decided except that His Lordship preferred to adopt the formula decided in R v. Edwards (supra) as an excellent guide to construction rather than an exception to a rule, and that in the final analysis each case must turn upon the construction of the particular legislation to determine whether the defence is an 10 exception. This is what His Lordship said: “In Reg. v. Edwards [1975] Q.B. 27, 39-40 the Court of Appeal expressed their conclusion in the form of an exception to what they said was the fundamental rule of our 15 criminal law that the prosecution must prove every element of the offence charged. They said that the exception “is limited to offences arising under enactments which prohibit the doing of an act save in specified 20 circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities.” I have little doubt that the occasions upon which a statute 25 will be construed as imposing a burden of proof upon a 19 defendant which do not fall within this formulation are likely to be exceedingly rare. But I find it difficult to fit Nimmo v. Alexander Cowan & Sons Ltd. [1968] A.C. 107 into this formula, and I would prefer to adopt the formula as an excellent guide to construction rather than as an 5 exception to a rule. In the final analysis each case must turn upon the construction of the particular legislation to determine whether the defence is an exception within the meaning of section 101 of the Act of 1980 which the Court of Appeal rightly decided reflects the rule for trials on 10 indictment. With this one qualification I regard Reg. v. Edwards as rightly decided.” [17] Lord Ackner in a separate judgment said: 15 “It is, of course, axiomatic that a statute may impose upon the accused the burden of proof of a particular defence to a statutory offence and may do so either expressly or by necessary implication. Whichever method Parliament uses it has created a "statutory exception" 20 and there is no difference in the quality or status of such an exception. As at the date of the decision in Woolmington's case, there were numerous examples of statutes in which the onus of proof of a particular defence had been placed upon the accused, either 25 expressly or, on a proper construction of the Act, by necessary implication. There is no warrant to be found either in the words used by the Lord Chancellor quoted 20 above or in their context for suggesting that "statutory exception" is limited to express statutory exception. In Mancini v. Director of Public Prosecutions [1942] A.C. 1, 11 Viscount Simon L.C. referred to Lord Sankey's second exception as covering no more than "offences where onus 5 of proof is specially dealt with by statute." I take the word "specially" to mean no more than that the onus of proof is made the subject of a statutory provision, be this express or implied. Lord Simon was not purporting to narrow the exception identified by Lord Sankey, but merely 10 to repeat it. If he had intended to narrow it to express statutory exceptions, this would have been so stated, but the resultant anomaly would then have required justification. Since, ex hypothesi, Parliament had by necessary implication from the words used in the 15 statute made known its intention, by what authority could that intention be ignored? It is a constitutional platitude to state that where Parliament makes its intention known, either expressly or by necessary implication, the courts must give effect to what 20 Parliament has provided. While the very nature of this appeal demonstrates the desirability of Parliamentary draftsmen, whenever it is the intention of Parliament to place a burden of proof upon the accused, so to provide in express terms, the proposition advanced by the appellant 25 cannot be sustained.” 21 [18] On the principle propounded by the Court of Appeal in R v. Edwards (supra), Lord Ackner remarked that the statement of principle in R v. Edwards (supra) [referred to in paragraph 14 of this judgment], is not intended to be exclusive in its effect, for, as stated by the Court of Appeal “whenever the prosecution seeks to rely on this exception, 5 the Court must construe the enactment under which the charge is laid.” This is what His Lordship said: “My Lords, in giving my reasons for allowing this appeal, answering the certified question in the negative and 10 quashing the conviction which are substantially the same as those of my noble and learned friend Lord Griffiths, I have made no mention of Reg. v. Edwards [1975] Q.B. 27. I have not done so first because I agree with the Court of Appeal that this case does not fall within the principle stated at p. 15 40 and secondly because it is clear that the statement of principle is not intended to be exclusive in its effect. Lawton L.J. in giving the judgment of the Court of Appeal stated in terms, at p. 40: "Whenever the prosecution seeks to rely on this exception, the court 20 must construe the enactment under which the charge is laid." Reg. v. Edwards provides, to my mind, a most helpful approach - but it still leaves to be answered in every case 25 where Parliament has made no express provision as to the 22 incidence of the burden of proof the question "what is the proper construction of the enactment?” [19] In our view the law is the same in this country. Statutory exception of similar nature are recognised and applicable. [See Abdul Manap v. 5 PP [1952] 1 MLJ 140, CA, Lee Chin Hock v. PP [1972] 2 MLJ 30, FC, PP v. Yuvaraj [1969] 2 MLJ 89, P.C, Jonaidi Mansor v. PP [2002] 1 CLJ 761, Tang Teck Seng & Ng Cheng Boon v Pendakwa Raya [2018] 1 LNS 35, PP v. Chin Yoke [1940] 9 MLJ (FMSR) 47]. 10 [20] In Lee Chin Hock v. PP [1972] 2 MLJ 30, the following question of law of public interest was reserved for the decision of the Federal Court under section 66 of the Court of Judicature Act 1964: “In a prosecution for an offence under section 25(1) of the 15 Internal Security Act No. 18/60 whereby ‘any person who without lawful excuse has in his possession any document or publication the possession of which is prohibited …’ do the words ‘without lawful excuse’ place the onus of such fact on the accused person or does it still lie 20 with the prosecution?” [21] The background facts which led to the reference to the Federal Court are these. Where it appeared to the Minister of Home Affairs that 23 any document and publication was of the kind mentioned in section 22 of the Internal Security Act, he may by order published in the Gazette prohibit the printing, sale, issue, circulation or possession of that document or publication. The Minister made such an order in respect of a book entitled "Advantages of Simplified Chinese Characters" 5 published by the Hong Kong Publishing Trading Co. at 46B Nathan Road, Hong Kong, which order was published in the Gazette as P.U.(A) 380 dated 22nd October, 1970. The appellant had a bookshop at 13 Jalan Bunga Raya, Malacca. On 13th February, 1971, a police party visited it and found eight copies of this prohibited book, and accordingly 10 the appellant was charged with in effect having, without lawful excuse, in his possession those books, though the charge did not expressly use the words "without lawful excuse". The charge alleged that the appellant had committed an offence punishable under section 25(1) of the Internal Security Act. Section 25 provides as follows: 15 “(1) Any person who without lawful excuse has in his possession any document or publication the possession of which is prohibited by an order under section 22, or any extract therefrom, shall be guilty of an offence against this 20 Part and shall be liable in respect of a first offence under this section to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand dollars, or to both such imprisonment and fine and, in respect of a 24 subsequent offence, to imprisonment for a term not exceeding two years.

(a) any fire-arm without lawful authority therefor; or 5

(b) any ammunition or explosive without lawful authority therefor, shall be guilty of an offence against this Part and be 10 punished with death.” [23] The Magistrate agreed with the defence contention and acquitted and discharged the accused. In a revision, the High Court remitted the case to the Magistrate with a direction to call for the defence of the 15 accused. The Federal Court affirmed that order of the High Court. The Federal Court held that the appellant was accused of an offence of having in his possession prohibited documents without lawful excuse. If he had a lawful excuse, that fact would be especially within his knowledge. Section 106 of the Evidence Ordinance in the clearest 20 language provides that the burden of proving that fact is on the appellant. It follows therefore that it is not for the prosecution to prove the absence of lawful excuse. The Federal Court also opined that section 105 of the Evidence Ordinance also was relevant. The presence 26 of lawful excuse brings the case of the appellant within an exception in section 25(1) of the Act, the law defining the defence. By that section, the burden of proving that circumstance is upon the appellant and the court shall presume the absence of such circumstance. In delivering the judgment of the Court, Ong Hock Sim F.J. said: 5 “In the absence of a definition of "lawful excuse", it is open to the accused to tender any sort of excuse, however fanciful or flimsy, the legality or sufficiency of which is to be determined by the court. This is peculiarly within the 10 knowledge of the person charged and section 106 of the Evidence Ordinance earlier referred to clearly applies. Three cases need only be mentioned to show that the question had already been resolved in our courts. They are: 15 1) Busu v Public Prosecutor [1948–49] MLJ Supp 140 CA – a case under regulation 4(1) of the Emergency Regulations, 1948; Willan C.J. said there were three ways for a person not of the class or category mentioned in regulation 4(2) to escape liability, 20 namely, to show (a) he had a licence, or (b) he was an authorised person or (c) an exempted person. He went on to say: "If, therefore, it is necessary for the prosecution to call 25 prima facie evidence that an accused had no licence, equally it must be necessary for them to call prima facie evidence regarding (b) and (c) above. 27 For the prosecution to adduce prima facie evidence regarding (a), (b) and (c) above would place an onus on them of giving negative proof regarding lack of qualifications, when in fact the existence of those 5 qualifications is especially within the knowledge of the accused." 2) Abdul Manap v Public Prosecutor [1952] MLJ 140 CA – it was held that it is not an essential part of the 10 case for the prosecution to prove the absence of lawful authority [call it "excuse" in the instant case] and that the onus of the negative averment was on the accused to prove he had lawful authority. Spenser Wilkinson J. delivering the 15 judgment of the court quoted with approval a passage from the judgment of Talbot J. in Williams v Russell 141 LTR 190 at p 191: "… Where it is an offence to do an act without lawful 20 authority, the person who sets up lawful authority must prove it and the prosecution need not prove the absence of lawful authority." 3) Public Prosecutor v Lim Kwai Thean [1959] MLJ 179 25 at p 180 – a case under the Emergency (Registration Areas) Regulations, 1948 involving onus to establish whether person is or is not required to be registered. We quote this time from Good J. acting in revision: 30 28 “At the trial, Mr. Yeo, counsel for the accused, submitted that the onus lay upon the prosecution to establish affirmatively that the accused was a person required to be registered under the Regulations and submitted that as no such proof had been given by the prosecution, there was 5 no case for the accused to answer. The learned Magistrate accepted that submission and acquitted the accused without calling upon him for his defence… There is only one point in these proceedings, and that is the point which was the subject matter of Mr. Yeo's submission at 10 the trial. The question is: Where does the onus of proof lie in order to establish that a person is, or is not, as the case may be, a person required to be registered under these Regulations? … Does the onus lie upon the prosecution to prove that any particular person who fails or refuses to 15 produce an identity card on demand by a Police Officer is not a member of one of the excepted categories, or does the onus lie upon the person concerned to prove that he is an excepted person? In my opinion, the effect of section 106 of the Evidence Ordinance is quite clear: 'When any 20 fact is especially within the knowledge of any person, the burden of proving that fact is upon him,' and then follows the very well-known illustration (b) – the railway ticket illustration. To interpret that section properly, I think it is essential to concentrate upon what was meant by the 25 word 'especially'. It does not say " 'exclusively,' or 'solely,' within the knowledge of any person." And, as I see it, the effect of the word 'especially' is this: That if it is an easy matter for the person concerned to prove a fact the proof of which by the prosecution would present the prosecution 30 with inordinate difficulties, then ordinary common sense 29 demands that the balance of convenience should be in favour of the prosecution.” It would appear that all these three decisions were based on the application of section 106 of the Evidence Ordinance. 5 Here the appellant was accused of an offence of having in his possession prohibited documents without lawful excuse. If he had a lawful excuse, that fact would be especially within his knowledge. Section 106 in the clearest language 10 provides that the burden of proving that fact is on the appellant. It follows therefore that it is not for the prosecution to prove the absence of lawful excuse. In our opinion section 105 of the Evidence Ordinance also 15 is relevant. The presence of lawful excuse brings the case of the appellant within an exception in section 25(1) of the Act, the law defining the defence. By that section, the burden of proving that circumstance is upon the appellant and the court shall presume the 20 absence of such circumstance.” [24] On the defence contention that if the legislature had intended that under section 25(1) the prosecution did not have burden to prove absence of any lawful excuse, in drafting section 25(1), the legislature 25 would have adopted the form of drafting as that under section 57(1), the Federal Court held that: 30 “We are of the opinion that the fact that section 57 of the Internal Security Act by express words places the onus of proving the presence of lawful excuse on a person charged with having in his possession without lawful excuse fire- 5 arms, etc., does not affect the answer to the question posed in this reference, because in our view those express words were put in by the legislature ex abundanti cautela.” [25] The application of the principle enunciated in R v. Edward (supra) 10 is demonstrated in the decision of the Singapore Court of Appeal in Tan Ah Tee & Anor v. Public Prosecutor [1980] 1 MLJ 49. The two appellants in that case were charged jointly with an offence of trafficking in 459.3 gram of diamorphine, an offence under section 3(a) of the Singapore Misuse of Drugs Act, 1973 which provides: 15 “3. Except as authorised by this Act or the regulations made thereunder, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not such person is in Singapore to — 20

(a) traffic in a controlled drug." The expression "controlled drug" is defined in section 2 thus:— 25 31 “‘Controlled drug' means any substance or product which is for the time being specified in Part I, II or III of the First Schedule to this Act or anything that contains any such substance or product;” 5 [26] On behalf of the appellant, it was contended that the prosecution had failed to prove an essential element of the offence with which they were charged in that there was no evidence before the Court that the appellant were persons who were not authorised by the Misuse of Drugs Act, 1973 or the regulations made thereunder to traffic in 10 diamorphine, a controlled drug. Wee Chong Jin C.J. delivering the judgment of the Court held: “It is a fundamental rule of our criminal law that the prosecution must prove every element of the offence 15 charged. This is a common law rule which is not embodied in any legislative enactment but is English in origin. In England the Court of Appeal in R v Edwards [1974] 3 WLR 285 held that if an enactment under which a charge is laid, on its true construction, prohibits the doing of acts, subject 20 to provisoes, exemptions and the like, then the prosecution can rely upon the exception to the fundamental rule of the common law of England that the prosecution must prove every element of the offence charged. The Court of Appeal so held after a thorough analysis of a long line of authorities 25 beginning from R v Stone (1801) 1 East 639. We quote 32 below the judgment of the court in R v. Edwards supra, delivered by Lawton L.J. at pages 295–6:— “In our judgment this line of authority establishes that over the centuries the common law, as a result of experience 5 and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common 10 law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of 15 specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then 20 the prosecution can rely upon the exception. In our judgment its application does not depend upon either the fact or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of 25 any negative averment. As Wigmore pointed out in his great Treatise on Evidence (1905), volume 4, page 3525, this concept of peculiar knowledge furnishes no working rule. If it did, defendants would have to prove lack of intent. What does provide a working rule is what the common law 30 evolved from a rule of pleading. We have striven to identify 33 it in this judgment. Like nearly all rules it could be applied oppressively; but the courts have ample powers to curb and discourage oppressive prosecutors and do not hesitate to use them. 5 Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation upon an enactment being construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or 10 the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden.” 15 In our opinion the law here is the same as the law in England as to when the prosecution can rely on the exception. It is limited to offences arising under enactments which on their true construction, prohibit the doing of an act save in 20 specified circumstances or by persons of specified classes or with special qualifications or with the licence or permission of specified authorities. What then is the true construction of section 3 of the Act? 25 In our opinion the section prohibits trafficking in a controlled drug save in the circumstances specified therein i.e. save as authorised by the Act itself or the regulations made thereunder. Consequently, the prosecution was under no necessity to prove a prima 30 34 facie case of lack of authorisation and it was for each appellant to prove that he or she was authorised to do the prohibited act.” [27] In our view, similarly, the law in this country as to when the 5 prosecution can rely on the exception is the same as in England. As explained in R v. Edwards (supra), it is limited to offences arising under Enactment which on their true construction, prohibit the doing of acts, save in specified circumstances or by persons of specified classes or with specified qualifications or with licence or permission of specified 10 authorities. But that statement of principle is not intended to be exclusive in its effect. As the Court of Appeal held in R v. Edwards (supra), “whenever the prosecution seek to rely on this exception, the Court must construe the enactment under which the charge it laid.” The question is what is the true construction of section 39B of the DDA? 15 [28] The offence of trafficking in dangerous drug is provided for under section 39B as follows: “Section 39B. Trafficking in dangerous drug. 20

(a) traffic in a dangerous drug;

(b) offer to traffic in a dangerous drug; or

(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug. 5

(a) …

(b) …

(c) …

(d) … (da) any person who is found in possession of – 5

(i) …

(i) that an accused has to be found in possession which include knowing the nature of the thing 38 possessed, a vital element for the ingredient of possession;