7/14/2019 1 Comment
The war against drugs is far from over but the Federal Court has nevertheless stepped in to put an end to the reign of double presumptions in drug trafficking cases.
Malaysia’s commitment to fighting drugs has always been associated with its draconian drug laws, known to be one of the strictest in the world. However, a perusal of those laws would lead to a finding that one of the many fundamental ideals inherent in the rule of law, viz., the presumption of innocence, seems to be undermined. The Dangerous Drugs Act 1952 (‘DDA’), the primary law governing drug offences in Malaysia, via Section 37A (‘s.37A’) allows the use of double presumptions, viz., the presumptions under Section 37(d) (‘s.37(d)’) and Section 37(da) (‘s.37(da)’) of the DDA could be used together to prove “possession and knowledge” and thereafter to prove “drug trafficking”. Hence, the DDA has transferred the onus of proof so that, once the facts necessary to constitute the crime is proven, the accused will be held to be guilty unless he can disprove the presumptions. This serves as a powerful tool for the prosecution.
The golden thread which runs through the entire web of criminal law is that an accused is presumed to be innocent until the contrary is established beyond reasonable doubt. Yet, this bedrock of criminal law does not find its way into Malaysia’s drug laws. Fortunately in a recent landmark decision, the nine-member bench led by the then Chief Justice Richard Malanjum declared s.37A of the DDA unconstitutional as it violated Article 5(1) read with Article 8(1) of the Federal Constitution (‘FC’). The Federal Court in PP v Alma Nudo Atenza has, therefore, struck down the double presumptions for drug trafficking under the DDA.
This decision has turned the page for our controversial drug laws. As such, this article seeks to examine the striking down of double presumptions for drug trafficking by the Federal Court. The author will first study the use of double presumptions before the decision of Alma Nudo Atenza. He will then delve into the facts of the case and examine the decision of Alma Nudo Atenza. The article will end by evaluating the significance of this decision.
II. THE LEGAL POSITION IN MALAYSIA OF THE USE OF DOUBLE PRESUMPTIONS IN DRUG TRAFFICKING CONVICTIONS BEFORE ALMA NUDO ATENZA
A. Double Presumptions in the Dangerous Drugs Act 1952
In criminal law, the general rule is no doubt that the prosecution will have to prove beyond reasonable doubt the physical and fault elements of an offence, and if the accused is to raise a defence, he must prove that defence on the balance of probabilities. Obviously, the rules of the game in the DDA do not resemble the general one. The position has been altered to ease the burden on the prosecution and to dramatically increase the burden on the defence. s.37 of the DDA lists out a number of presumptions. The notorious double presumptions, however, rests on s.37(d) and s.37(da).
S.37(d) stipulates that:
“(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”.
On the other hand, s.37(da) provides a list of drugs with specific weight for each, and “any person who is found in possession of [listed drugs exceeding the threshold amount] … shall be presumed, until the contrary is proved, to be trafficking in the said drug”.
The operation of the double presumptions can be seen as follows:
It would be helpful to also note that, currently, the punishment of drug trafficking as per s.39B(2) of the DDA is that those convicted of the offence would face “death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than 15 strokes.”
B. The case of Muhammed Hassan v PP
As to the legal position of double presumptions, it is well to start historically. The operation of double presumptions was already common after the passage of the DDA. Among those cases was the case of PP v Chuah Kok Wah, where three plastic packets containing 864.27 grams of heroin were recovered from the accused’s body. The High Court took into account the presumptions of law as provided by s.37(d) and (da) of the DDA, and held that the prosecution had made out a case against the accused, as the prosecution had successfully proved that the accused had in custody or under his control the three plastic packets.
It is the case of Muhammed Hassan v PP that blew the winds of change in 1997. In that case, the accused was convicted for drug trafficking under s.39B of the DDA. The High Court found that the accused had failed to rebut the statutory presumptions in s.37(d) and (da) of the DDA on the balance of probabilities.
When the case was brought before the Federal Court, the apex court’s attention was particularly drawn to the distinction between the words “deemed” in s.37(d) and “found” in s.37(da). The Federal Court went through a thorough analysis and held that the former arises by operation of law without necessity to prove how a particular state of affairs is arrived at, and the latter connotes a finding made by a court after trial. Thus, 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. In other words, emphasis was put on the clear and unequivocal wordings of the two subsections. Consequentially, the presumption of possession under s.37(d) cannot be used to invoke the presumption of trafficking under s.37(da), sounding the death knell to the use of double presumptions. The Federal Court rightly pointed out that it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption.
Chong Siew Fai CJ (Sabah & Sarawak) in delivering the unanimous judgment, stood firm that such a construction should only be adopted if, upon the wordings of the two subsections, such an intention of the Parliament is clear.
Thus, after Muhammed Hassan, the practice of the prosecution was to choose either to invoke the presumption under s.37(d) or the presumption under s.37(da). The presumption of trafficking under s.37(da) can only be invoked by affirmative evidence of possession and no longer by the convenient use of the presumption of ‘possession’ under s.37(d).
Good days here did last quite some time, albeit only for 15 years. Following the decision in Muhammed Hassan, Parliament tabled the Dangerous Drugs (Amendment) Act 2014, which introduced a new s.37A to permit the presumption in s.37(d) to be applied together with the presumption in s.37(da) against an accused. The legislative intent was clearly enunciated at the second reading of the Bill in the Dewan Rakyat, viz., to overcome the impact of the Federal Court decision in Muhammed Hassan. The amendment sought to address the problem where the prosecution was given a more difficult task to succeed in proving drug trafficking cases due to the downfall of the double presumptions approach, purporting to obviate the dilemma faced by the prosecution.
The amendment Act was duly passed. The newly inserted S.37A governs the application of presumptions and now reads:
“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."
The amendment did comply with the opinion of the Federal Court in Muhammed Hassan which stated that double presumptions could only be permitted if, “upon the wordings of the two subsections, such an intention of the Parliament is clear”. However, it was disappointing to see our Parliament uphold an approach already mauled by the Federal Court to be “harsh and oppressive”.
Therefore, the coming into force of the amendment Act on 14 February 2014 brought with it a revival of the double presumptions approach previously scotched by Muhammed Hassan. As stated by Abdul Rahman Sebli JCA in PP v Hamid Shamsi Kavishashi,  “under this new provision the rule against double presumption has, for all practical purposes, been done away with”.
The tide hence began to turn after the amendment and the reception of the double presumptions approach was fast in our local courts. In Yu Jing v PP, the Court of Appeal suggested that s.37A was introduced to remedy the prohibition on the use of double presumption. In Wen Wuzhuang v PP, the Court of Appeal stated, in obiter, that now with s.37A of the DDA, the presumption of possession and knowledge under s.37(d) is allowed to be used to further invoke the presumption of trafficking under s.37(da), apparently as a way to overcome the rule against double presumption as decided in Muhammed Hassan.
Worse, we could also see the returning application of the use of double presumptions after the amendment. In PP v Hamid Shamsi Kavishashi, the accused was deemed to be in possession of the drugs because the drugs were in his custody and control. This further triggered the statutory presumption of trafficking as provided in s.37(da) and the burden was on the accused to prove that the drugs were not for the purpose of trafficking. Since no evidence in rebuttal was adduced by the accused, the presumption was not rebutted. Applying double presumptions, the Court of Appeal substituted the acquittal with an order that the accused be convicted of the trafficking charge.
In PP v Tao Wanwan (W/China), the High Court without hesitation applied the double presumptions approach, as the court was of the view that the new s.37A had succinctly permitted such application as a matter of law. The learned counsel for the accused had put forth cogent arguments that such double presumptions may run foul against Articles 5 and 8 of the Federal Constitution, for it is in affront to the principle of the right to a fair trial and the presumption of innocence, thus causing the accused to be deemed guilty indiscriminately.
The High Court disagreed and held that in cases where presumption is applicable, the prosecution still needed to prove all the facts to invoke the presumption of the offence, and it was not to the extent of the accused proving his innocence. Besides, such presumption, once triggered, still reserved for the accused a fair right to provide justification in their defence on the balance of probabilities. Zulkifli Bakar J in his judgment opined that the presumption was not against any fundamental rights provided under Article 5 and Article 8 of the Federal Constitution. He reasoned that this burden was understandably higher to the accused because the statute involved is concerned with an issue of social concern, since it causes public danger due to the negative effect of drug abuse. Therefore, the High Court ruled that the invocation of presumptions in proving drug trafficking offence was allowed.
The above cases and numerous others illustrate the aftermath of the amendment of S.37A of the DDA. Some courts started to rigidly apply the double presumptions. Thus, before Alma Nudo Atenza, what we could foresee was the application of double presumptions to be the standard practice in drug cases.
III. THE CASE OF ALMA NUDO ATENZA - THE SALIENT FACTS
The case was a combination of two appeals heard before the Federal Court, as both appeals were premised on one common and crucial issue. Both appellants in these two appeals were charged before and convicted by two different trial judges for drug trafficking under s.39B of the DDA.
A. The 1st Appeal
1. Facts of the Case
In the 1st appeal, the 1st appellant, a Filipino national, travelled from Hong Kong to Malaysia by flight. Upon her arrival at Kuala Lumpur International Airport (KLIA), the customs and police officers conducted a physical examination of the contents of her bag. Nine packages of handbags wrapped in clear plastic were identified and a total of 36 packages, containing crystalline substance tested positive for methamphetamine, were recovered from the nine handbags. The Chemistry Department analysed and confirmed that the substance contained in total 2556.4g of methamphetamine.
2. Decisions of the High Court
The High Court ruled that the element of possession the presumption under s.37(d) of the DDA could be invoked, as the bag was under the custody and control of the 1st appellant. It was also found that there was evidence to indicate the knowledge of the 1st appellant of the drugs she was carrying in the bag, 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.
On the issue of trafficking, the High Court ruled that in view of s.37A the prosecution was allowed to invoke another presumption under s.37(da)(xvi) as the weight of the methamphetamine exceeded 50g. The 1st appellant argued that she was offered an assignment to carry diamonds from Hong Kong to Malaysia and another checked in the bag for her. The defence of innocent carrier argued was not accepted by the court for no one would carry diamonds of colossal value in an unlocked checked-in bag. There were obvious circumstances which could have aroused the suspicion of the 1st appellant on what she was carrying yet she ignored those facts. Applying the principle of wilful blindness, the 1st appellant was taken to know that she was carrying drugs. Hence, she was convicted and sentenced to death.
3. Decision of the Court of Appeal
Among others, the 1st appellant appealed on the constitutionality on the use of double presumptions. On this issue, the Court of Appeal noted that despite the invocation of the presumptions, the prosecution was still required to prove their case beyond reasonable doubt. It was incumbent upon them to adduce positive evidence of the relevant facts before the presumption could be invoked. Thus, since the opportunity to rebut the presumption was not taken away, the rights of the defence were well maintained. Hence, the Court of Appeal held that the use of double presumptions was not unconstitutional and did not violate the presumption of innocence.
B. The 2nd Appeal
1. Facts of the Case
In the 2nd appeal, the 2nd appellant, a Thai national, travelled by flight from Bahrain to Kuala Lumpur via Abu Dhabi. Upon her arrival at KLIA, he lodged a complaint regarding the loss of the bag to the airport authorities. Later, the bag arrived at KLIA and was handed over to the Lost and Found section and delivery was arranged to send the bag to the 2nd appellant. However, during the scanning process, a suspicious item was found inside the bag. Subsequently, white powder was identified, and after analysis, the powder was confirmed to contain 693.4g of cocaine.
2. Decisions of the High Court
The High Court also observed that s.37A of the DDA would allow the use of double presumptions. Thus, the prosecution only needed to prove that the 2nd appellant had the custody and control over the bag in order for him to be presumed to have possession and knowledge of the dangerous drug unless proven otherwise. The trial judge was satisfied that the elements of custody and control were proven. Thus, s.37(d) applied and the 2nd appellant was presumed to have possession and knowledge of the drugs. The double presumptions then became operative. It was ruled that the 2nd appellant was presumed to be trafficking the drugs as s.37(da)(ix) was applicable, for the weight of the cocaine had exceeded the statutory stipulated weight. The 2nd appellant failed to adduce evidence to rebut the double presumptions under s.37(d) and (da) of the DDA and her defence of lack of knowledge was rejected. Accordingly, she was found guilty and sentenced to death.
3. Decision of the Court of Appeal
The 2nd appellant appealed on the ground that the learned trial judge had erred in law and fact in finding custody and control. The use of double presumptions was, however, not discussed. The Court of Appeal dismissed the appeal as it agreed with the finding of the High Court. It emphasised that there was a failure to cast reasonable doubt in the prosecution's case or to rebut the presumption of knowledge on the balance of probabilities.
IV. THE CASE OF ALMA NUDO ATENZA - THE DECISION OF THE FEDERAL COURT
The crucial issue before the Federal Court was the constitutionality of s.37A of the DDA and the appellants sought to challenge on two broad grounds:
A. First Ground: Challenge Based on Separation of Powers
The appellants first emphasised that under Article 74(1) of the FC, Parliament is empowered only to make laws and under Article 121(1), judicial power is vested exclusively in the courts. Since the Federal Court in Muhammed Hassan had already exercised its judicial power to declare that using double presumptions was harsh, oppressive and thus impermissible, Parliament could not interfere by amending the DDA to legalise what had been declared illegal. They argued that the legislature’s enactment of s.37A was, in effect, to overrule the decision of Muhammed Hassan, thus the Parliament had exercised the judicial power of declaring law. The fundamental principle of separation of powers in the FC was, in the appellants’ opinion, violated.
The Federal Court acknowledged that the separation of powers between the legislature, the executive, and the judiciary is a hallmark of a modern democratic state. However, the court recognised 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 does not overrule the decision of the court in that case, but only altering the legal foundation on which the judgment is founded. That earlier decision of the court will then become unenforceable for the interpretation of the newly amended law. Nevertheless, the decision itself which led to the amendment is not affected.
Thus, the Federal Court ruled that s.37A did not overrule the decision of the Federal Court in Muhammad Hassan which effect was only to alter generally law upon which that decision was founded upon. The finality of the decision in that case in respect of the rights and liabilities of the parties was unaffected. Thus, such an amendment was a permissible exercise of legislative power and did not encroach into the realm of judicial power. Hence, the first ground of challenge raised by the appellants was dismissed.
B. Second Ground: Challenge Based on Articles 5 and 8
The second ground of challenge raised by the appellants was based on Articles 5 and 8 of the FC. The learned counsel for the appellants raised a cogent argument that s.37A of the DDA had the effect of reversing the burden onto an accused to prove his or her innocence. This provision which rendered the accused to rebut both presumptions on the balance of probabilities was oppressive, unduly harsh, and unfair, and offended the requirement of fairness housed under Articles 5 and 8 of the FC. In particular, the right in Article 5(1), which included the right to fair trial, was argued to be absolute and cannot be derogated.
Article 5 reads “[n]o person shall be deprived of his life or personal liberty save in accordance with law.” The Federal Court recognised that Article 5(1), the right to life, was the foundational right upon which other fundamental rights enshrined in the FC drew their support. Further, the “law” in the proviso “save in accordance with law” did not mean any specific and explicit law validly enacted by Parliament, but such law must also be one that is fair and just to vindicate the rule of law. To allow any enacted law, however arbitrary, unfair, or unjust, to deprive the right under Article 5 would be condoning the rule by law instead.
Accordingly, the Federal Court suggested that Article 5(1) 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.
The Federal Court, however, stressed that the fundamental principle of presumption of innocence was qualified by the phrase “in accordance with law”. Put simply, the presumption of innocence is not absolute but subject to implied limitations, as a degree of flexibility is required to strike a balance between the public interest and the right of an accused person. Yet, exclusion of such principle will not be rendered constitutionally valid if it would subvert the very purpose of the entrenchment of the presumption of innocence in the FC.
This is where the Federal Court opined that the doctrine of proportionality housed in Article 8(1) became engaged. According to the Federal Court, if a state action is alleged to violate the right to life or personal liberty under Article 5(1), Article 8(1) will be invoked to ensure that the action satisfies the test of proportionality. To determine whether the presumption of innocence is rightfully circumvented, the proportionality test will come into the picture to strike the appropriate balance between the competing interests of an accused and the State.
Richard Malanjum CJ summarized the principles on Articles 5 and 8 with regard to the presumption of innocence succinctly as follows:
C. The Constitutionality of Section 37A of the DDA
The reference to the landmark UK Supreme Court case of R v Whyte gave the Federal Court a concrete reasoning that s.37A prima facie violates the presumption of innocence since it permits an accused to be convicted while a reasonable doubt may exist. It, in effect, requires an accused to prove some fact on the balance of probabilities to avoid conviction.
On the question whether the incursion into the presumption of innocence under Article 5(1) satisfies the requirement of proportionality housed under Article 8(1), the Federal Court applied thoroughly the three-stage test:
Accordingly, s.37A was held to be unconstitutional for violating Article 5(1) read with Article 8(1) of the FC. Since there was no challenge to the use of a single presumption in these appeals, the Federal Court was of the view that the invocation of S.37(d) by the trial judges was rightful and there was no reasonable doubt on the guilt of the appellants for possession of the drugs. Their respective convictions under s.39B of the DDA was thus substituted to one of possession under s.12(1) and punishable under s.39A(2) of the DDA.
V. SIGNIFICANCE OF THE STRIKING DOWN OF DOUBLE PRESUMPTIONS
There are fundamental rights accorded to persons merely accused of an offence. In particular, Article 11 of the Universal Declaration of Human Rights provides that everyone charged with a penal offence has the right to be presumed innocent until proven guilty. Its most sonorous endorsement at common law came in the famous House of Lords decision in Woolmington v DPP, in which the then Lord Chancellor, Viscount Sankey, emphasised that “at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt”. It is, thus, the duty of the prosecution to prove the prisoner’s guilt. The Federal Court in Arulpragasan a/l Sandaraju v PP upheld Woolmington and propounded that “it is wrong … to whittle down the cardinal principle of our criminal law on the presumption of innocence of the accused”.
No doubt, the right to be presumed innocent has been whittled down in the DDA via s.37A. As discussed in Alma Nudo Atenza, the presumption of innocence is, however, not absolute. So long as its erosion can fulfil the proportionality test, the whittling down will be justified.
In our drug laws, the double presumptions approach has been haunting our local courts since the enactment of the DDA. The Federal Court in Muhammed Hassan had already taken the chance to rectify this unduly harsh and oppressive approach by refusing the automatic application of presumption upon presumption and restating the correct application of the presumptions. When we thought that the matter was settled, the Parliament dropped a bomb in 2013. A bill was sought to amend s.37A of the DDA, 15 years after Muhammed Hassan was decided. Of course, the legislative intention was bona fide, to address the issue of the prosecution repeatedly failing to prove drug trafficking and convict alleged drug traffickers. The only but glaring flaw was that the Parliament failed to appreciate the rationale underlying the decision of the Federal Court in Muhammed Hassan and to observe the spirit of presumption of innocence being the central tenet of our fundamental right. The effect of such double presumptions was that no longer is the accused presumed innocent, here he was presumed guilty of trafficking until he was able to rebut that presumption.
Therefore, the author wishes to compliment the nine-member bench in Alma Nudo Atenza for their valiant effort to put away the infamous double presumptions approach. The author is especially concerned with the fundamental right of an innocent person to not be convicted. A wrongful conviction constitutes to injustice and substantial moral harm, and it is the avoidance of this harm that underlies the universal insistence on respect of the right to the presumption of innocence. It must be noted that possible punishments of an offender under the DDA are extremely severe, including whipping, life imprisonment and death penalty. They strike at the central rights of the individuals concerned — right to personal liberty and right to life — and if these fundamental liberties are to be curtailed or taken away, there must be in place a number of procedural protections. The author is of the view that the presumption of innocence would be one of the most vital protections to prevent wrongful conviction, and he is grateful to see that the Federal Court paved the way to safeguard this cardinal right of the people.
Besides, it is encouraging to witness the positive judicial attitude displayed by our Federal Court. The Federal Court rightly applied the test of proportionality by reconciling Articles 5(1) and 8(1). Their reasoning in declaring the unconstitutionality of s.37A is potent, delicate and well-ordered. It assures the public that the right to life is not entirely at the mercy of Parliament, and the courts will not be reticent in shielding the citizen against oppressive laws and abuse of power. Previously, the courts have been submissive in reacting to Parliament’s laws, despite the possibility of constitutional review.
It is optimistic to witness the courts now playing a creative and not a mechanical role nor be too reserved in determining the question of constitutionality of laws passed and enacted by our Parliament. Former Court of Appeal judge Dato’ Seri Hishamudin Yunus emphasised that judicial activism is part and parcel of the role of the judiciary as being co-equal with the other two arms of government, namely, the legislature and the executive, and as being essential to good governance, the system of checks and balance and the rule of law. The trend of the judiciary to discard judicial constraint and draw a fine balance between upholding Acts of Parliament and safeguarding individual rights is promising.
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. Thus, our Federal Court has vindicated this basic precept of the rule of law in its decision in Alma Nudo Atenza, that is, everyone should be presumed innocent.
Although the Federal Court is laudable for its deft and bold ruling in striking down s.37A, it must be noted at the outset that the decision in Alma Nudo Atenza only prohibited the use of double presumptions under s.37(d) and s.37(da) of the DDA. The constitutionality of a single presumption either under s.37(d) or (da) was not challenged.
Hence, it is still open to the prosecution to rely on either one of the presumptions independently. This proposition was observed by the Federal Court back in 2006 in the case of PP v Abdul Manaf Muhamad Hassan where the apex court discussed about the corollary of Muhammed Hassan:
“[T]he prosecution may positively prove possession without relying on the presumption under s.37(d) of the Act and go on to rely on the presumption of trafficking under s.37(da) of the Act to support a charge under s.39B of the Act ... Conversely, the prosecution may rely on the presumption under s.37(d) to prove possession and seek to prove by affirmative evidence (independent of the presumption under s.37(da) that the accused was in fact trafficking in the dangerous drug.”
It remains to be seen how the courts will later deal with the constitutionality of a single presumption either under s.37(d) or (da), bearing in mind that the prohibition of inroad into the presumption of innocence principle is not at all absolute, and may be justified in certain circumstances. In drug trafficking issues, especially, public interest, social concerns and severe communal consequences may warrant the bypass of the presumption. It is also interesting to see whether the Parliament will take any action again to eschew this decision of the Federal Court. Only time will tell.
Written by Benjamin Kho Jia Yuan, a final year law student of the Faculty of Law, University of Malaya.
Edited by Farah Nabihah and Zafirah Jaya.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 Dangerous Drugs Act 1952 (Act 234).
 This is derived from the famous statement of Viscount Sankey LC in Woolmington v Director of Public Prosecutions  AC 462, at 481: “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.
 Malaysian Constitution.
 PP v Alma Nudo Atenza  3 MLRA 1;  MLJU 280 (“Alma Nudo Atenza”).
 See footnote 4 above, at para 139.
 Prior to the 2017 amendment—Dangerous Drugs (Amendment) Act 2017 (Act A1558)—the only possible punishment for drug trafficking is mandatory death penalty. The original S.39B(2) reads “[a]ny person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death” (emphasis added).
 PP v Chuah Kok Wah  MLJU 258.
 Muhammed Hassan v PP  2 MLJ 273 (“Muhammed Hassan”).
 Dangerous Drugs (Amendment) Act 2014 (Act A1457).
 Parliamentary Debates, Representative, Thirteenth Parliament, First Session, Third Meeting, 4 Dec. 2013, 111: 2020 (Hilmi bin Yahaya).
 PP v Hamid Shamsi Kavishashi  MLJU 2251, at para 28.
 Yu Jing v PP  MLJU 324.
 Wen Wuzhuang v PP  MLJU 1604.
 See footnote 11.
 PP v Tao Wanwan (W/China)  MLJU 1670.
 Pendakwa Raya v Alma Nudo Atenza  MLJU 563.
 Alma Nudo Atenza v PP  MLJU 884.
 See footnote 4 above, at para 63.
 See footnote 4 above, at para 69.
 See footnote 4 above, at para 84.
 See footnote 4 above, at para 88.
 See footnote 4 above, at para 94.
 See footnote 4 above, at para 98.
 See footnote 4 above, at para 109.
 See footnote 4 above, at para 111.
 See footnote 4 above, at para 125.
 See footnote 4 above, at para 127.
 R v Whyte  51 DLR (4th) 481.
 See footnote 4 above, at para 143.
 See footnote 4 above, at para 144.
 See footnote 4 above, at para 145-150.
 See footnote 3 above, at para 148.
 See footnote 3 above, at para 149.
 Universal Declaration of Human Rights art 11.
 Woolmington v DPP  UKHL 1.
 Arulpragasan a/l Sandaraju v PP  1 MLJ 1, at 24.
 R. M. Dworkin, “Principle, Policy and Procedure”, Crime, Proof and Punishment, Ed., C. Tapper, (Butterworths: London, 1981).
 Andrew Ashworth, “Four Threats to the Presumption of Innocence”, (2006) 10 International Journal of Evidence and Proof 241-279, at 247.
 Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia, (Selangor, Malaysia: Star Publications (Malaysia) Berhad, 2008).
 Mohd Hishamudin Yunus, “Judicial Activism – A Way to Go?”, (2012) 5 Current Law Journal (A) ix, at xxvi.
 R v Oakes  1 SCR 103, at para 29.
 PP v Abdul Manaf Muhamad Hassan  2 CLJ 129.