Discretion in law but not in practice: Malaysia's Dangerous Drugs Act

Discretion in law but not in practice: Malaysia's Dangerous Drugs Act

Sara Kowal, Dobby Chew & Mai Sato | 19 July 2021

The path towards the abolition of the death penalty can be paved with small, pragmatic steps, such as moving away from mandatory death penalty. In November 2017, the Malaysian Parliament allowed judicial discretion in drug trafficking cases. As of March 2018, instead of the death penalty, Malaysian judges can exercise discretion and sentence persons convicted of drug trafficking to life imprisonment and whipping of not less than fifteen strokes. Datuk Seri Azalina Othman, the then Minister in the Prime Minister’s Department, argued that the amendment reflected public opinion in Malaysia, supporting an element of ‘mercy in a certain situation where the judge sees fit’.

The amendment

Under the new Section 39B(2A) of the Dangerous Drugs Act (‘DDA'), the Court must be satisfied that:

Discretionary sentencing allows the Court to consider mitigating factors about the offence and the circumstances of the offender such as socio-economic status or past criminal history. The amended legislation allows the Court to avoid sentencing certain couriers to death if they have had a limited role in trafficking and if they have cooperated with enforcement agencies.

Looking at the official statistics, the number of death row prisoners convicted of drug trafficking has been increasing steadily before and after the legislative amendment (from 799 in 2016 to 912 in 2020). And this increase in the number of death row prisoners can largely be explained by the rise in the number of arrests for drug trafficking. What these figures suggest, however, is that the amendment has not resulted in a significant drop in the proportion of death row prisoners convicted for drug trafficking.

The amendment in practice

Between March 2018 and October 2020, there were 38 cases where individuals were convicted of drug trafficking. Of these 38 cases, s39B(2A) was considered in 11 cases—the Court accepted the discretion argument in 4 cases and rejected it in 7 cases.

Qualitative analysis carried out by Anti-Death Penalty Asia Network (ADPAN) found that there was inconsistency in the interpretation of the amendment. First, there was ambiguity regarding whether s39B(2A) should be read conjunctively or disjunctively. In his dissenting judgement in Public Prosecutor v Mehrdad Rahmati Yadollah (Iran) & Anor, Judge Lee Swee Seng noted that judges often misinterpreted the amendment by thinking that all four conditions must be met before applying discretion. In Public Prosecutor v Brits Shaun [2019] MLJU 916, Moho Radzi bin Abdul Hamid JC decided that ‘paragraphs (a), (b) or (c) are to be read disjunctively and then read conjunctively with paragraph (d)’, though case law is still developing on this point.

Second, the last-minute change to s39B(2A) resulted in confusion among judges concerning who determines whether the accused provided sufficient assistance to enforcement agencies. The responsibility was moved from the Public Prosecutor to the Malaysian judiciary to determine if the accused had provided sufficient assistance in disrupting drug trafficking activities. ADPAN’s analysis found that many judges were incorrectly relying on evidence from prosecutorial agencies to guide them in assessing whether the accused satisfies sub-section (d) of s39B(2A).

The innocent carrier defence

Before the introduction of s39B(2A), the ‘innocent carrier’ defence was one of the few ways in which the accused could avoid the death penalty. This defence is frequently used because of the ‘double presumption’ clause in the DDA. Under section 37 of the DDA, the accused is presumed to be in possession with the knowledge of the drug if the prosecution proves that the drug was on land or on premises occupied by the accused. If the accused is found to be in possession of a certain amount of drug (determined in s37(da)), the accused is further presumed to have engaged in trafficking. This ‘double presumption’ shifts the burden of proof away from the prosecutor: the accused is required to disprove possession and/or trafficking. With mandatory sentencing not allowing mitigating evidence to be considered, those accused of trafficking often rely on the common law defence of ‘innocent carrier’. The accused claim that they were unaware that the container they were asked to carry had illicit drugs. This defence allows an explanation for circumstances where the accused cannot distance themselves from the drugs found in their proximity. For some, this is a genuine defence and rightly leads to an acquittal.

However, in jurisdictions that prescribe the mandatory death penalty for drug trafficking, the accused has little option but to run a defence based on lack of knowledge. Among the 120 cases where individuals were charged with drug trafficking (January 2016-June 2021), just over half (66 cases) used the defence of ‘innocent carrier’, ten resulting in an acquittal. More women relied on the ‘innocent carrier’ defence than men (9 out of 13 cases for women; 52 out of 95 for men). The ‘innocent carrier’ defence remains the key defence used for trafficking cases post-amendment (56 per cent relied on the defence pre-March 2018; 52 per cent post-March 2018).

When introducing the amendment, the then Minister Azalina Othman made it clear that the legislature does ‘not want the judges' hands to be tied, that is why we are giving them the power to use their discretion.’ Our preliminary analysis, however, suggests that not much has changed since the introduction of s39B2A. The judiciary remains reluctant to exercise discretion when it can—partly due to the ambiguity in the wording of the legislation and partly due to its unwillingness to interpret the new amendment in favour of the accused. The innocence carrier defence remains the most effective defence, as long as the double presumption clause remain in the legislation and the scope for judicial discretion in sentencing remains so limited. Couriers charged with drug trafficking continue to be sentenced to death in Malaysia.


Sara Kowal is founder and manager of the Eleos Anti-Death Penalty Clinic. Sara is an experienced criminal lawyer, having practiced since 2003; she has extensive experience in defending complex prosecutions. Sara is Vice-President of the Capital Punishment Justice Project and is on the Executive Board of the Anti-Death Penalty Asia Network (ADPAN).

Dobby Chew is the Executive Co-ordinator of the Anti-Death Penalty Asia Network (ADPAN). Dobby has worked extensively on the death penalty and anti-torture campaign since 2015. He was previously a programme manager at Suara Rakyat Malaysia and a key contributor to the SUARAM Human Rights Report for Malaysia.

Mai Sato is the inaugural director of Eleos Justice.

The authors acknowledge the research assistance of Ryan Beckmand, Athulya Meddegoda, Anne Poulson, and students of the Eleos Anti-Death Penalty Clinic, Monash University.