Drug trafficking: actual delivery, handover price must be proven

Drug trafficking: actual delivery, handover price must be proven
Tuesday, 15 August 2006, 17:15
©Bernama

PUTRAJAYA, Aug 15 (Bernama) -- 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 of 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 expression of "agreement to sell" or "agreement to buy" to fall within the definition of trafficking, the court ruled.

The Appeal Court, led by Justice Datuk Gopal Sri Ram, delivered the judgment yesterday in allowing the appeal by 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 the rotan.

Saari was charged with trafficking 3,686 grammes 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 has been in prison since Sept 8, 1991.

Justice Sri Ram, in his written judgement said 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.

"Doing negotiations for a sale also does 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 kilogrammes of cannabis for a sum of RM6,000.

On the agreed day, Saari went to the meeting point, carrying a plastic bag and stopped at a money changer's shop where he placed the bag on the floor.

He then went to meet the agent and asked him to pick up the bag. The agent made a pre-arranged signal and police officers ambushed the scene and arrested Saari.

Justice Sri Ram, in his judgement said 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 counsels Karpal Singh and Gobind Singh Deo, while Deputy Public Prosecutor Wong Chiang Kiat appeared for the government.