IN recent years travellers on the land borders between Malaysia and Thailand have been subjected to random urine tests by enforcement authorities in response to the recent stance taken by our neighbouring country in decriminalising the use and possession of cannabis.
Par for the course for a country which happily, in the same breath as saying “welcome to Malaysia”, announces on incoming flights that you will be hung by the neck until you are dead if you are found to be trafficking in dangerous drugs.
What makes these enforcement actions troubling, however, is the erroneous basis upon which they are founded.
The police narcotics head in Perlis, Mohd Taufiq Maidin, was previously reported as saying that it did not matter where the crime of self-administration was committed.
Presumably, this statement was in relation to the prosecutability of the offence in Malaysia; for what other reason would the police involve themselves in detecting and investigating these cases?
At this juncture we will need to address the issue of jurisdiction, and the enforceability of laws outside of it.
As a general rule, countries are each considered sovereign territories governed by their own constitution and subsidiary laws as created by their legislature and enforced by their executive within their borders.
Even colonialist Britain understood and respected this concept, as they had obtained the prior blessings of the state sultanates to legally operate and conduct business in the Malayan Peninsula.
While the said Sultanates were vested with the authority to enable the British to legally occupy the Malay states and safeguard their colonial interests by fiat of their sovereign power, they would have held no such authority outside of the territories that they controlled, in the same way that Thailand’s domestic laws on the decriminalisation of cannabis have no effect here in Malaysia.
Section 15 of the Dangerous Drugs Act 1952 is a law which criminalises the conduct of self-administering a scheduled drug, which includes cannabis.
To be perfectly clear, it is not an offence merely to have a scheduled drug in one’s system. If the self-administration had occurred outside Malaysia’s territorial jurisdiction, it is opined that no offence could be said to have been committed here.
This view seems to be supported by the Supreme Court in Public Prosecutor v Rajappan [1986] 1 MLJ 152. The case in question concerned the offence of bigamy contrary to section 494 of the Malaysian Penal Code.
The respondent, while legally married in Malaysia, had travelled to India and had married again under Indian Law.
In upholding the acquittal of the respondent, the former Lord President of the Supreme Court, Tun Salleh Abas held that, “Every piece of legislation is presumed to have effect only within the territory of the legislature. If effect is intended to extend beyond the territory the enactment to that effect must be clear and beyond dispute. In English law, and in our law also, presumption against extraterritorial application of a penal statute is well-established.”
The views taken by the narcotics chief as to the prosecutability of self-administration of a dangerous drug done extraterritorially is therefore prima facie unsustainable based on the Dangerous Drugs Act 1952 in its current form.
According to s. 20 of the Police Act 1967, the role of the police is to enforce the laws of the sovereign. In this regard, the police cannot be faulted for having border checkpoints to ensure that drugs are not smuggled into the country, contrary to s. 39B of the Dangerous Drugs Act 1952.
The same cannot be said however of conducting urine tests on travellers arriving in Malaysia from Thailand, on suspicion of having committed an offence there, as that is not in law an offence punishable by the laws of Malaysia.
For the arrestee of a s. 15 offence in the above circumstances, it does not end there. Apart from being liable to be held in remand for a period of 7 days, they may also be charged with having committed that offence.
While it is formally the case that the state has to prove a case against the accused beyond a reasonable doubt, it is most assuredly the case for the arrestee that he would be the one bearing the practical brunt of proving his innocence.
This is because apart from the financial and time costs the arrestee himself would have to shoulder, that person would also have to convince the court that he had self-administered outside of the jurisdiction; good luck for that if no purchase receipts were kept or a selfie taken of him with a joint sticking out his mouth, for example.
With respect, in such circumstances, the issue of guilt or innocence may very well come down to a coin flip, with nothing but the word of a suspected drug user looking to “save his own skin” to hang the defence upon.
The police of course very well know this process and the burden placed on the arrestee to clear his name through the courts.
It would not be a stretch therefore to suppose that in the circumstances outlined above, the real intention of the police in conducting these random tests and putting them through the court process, knowing at the end of the day that the conviction would, in law, be unsustainable, is but as an elaborate means of enacting a deterrence, when our domestic laws are found by them wanting in this niche regard.
It appears therefore that these random border checks are nothing more than a mala fide abuse of process. The moral intentions of the police are no doubt good in the sense that they believe that they are upholding their duty as police officers, but this does not change the fact that they are principally required to enforce the laws of Malaysia in carrying out their functions.
Moral judgement should not factor into this exercise. Punishing someone for an extra-territorial offence clearly falls outside of that scope.
Nevertheless, the extra-territoriality of the Dangerous Drugs Act 1952 in this new and novel context has yet to be tested and adjudicated upon by the courts of the land. Until such time as that happens, the above matters are but views of the author and not of any legal consequence.
In law school, the titular “Amsterdam Defence”, where a notional person returning to Malaysia having partaken in the “local culture” in the Netherlands was a hotly debated topic.
As our neighbouring country has recently come to embrace the Dutch sensibility on cannabis, where such a destination is more affordable and accessible to Malaysians, the lawyers at Read & Co look forward to conducting a case in which that legal defence may be put through its paces and judicially considered. – March 21, 2024
Farhan Read was formerly deputy public prosecutor and is currently a practising Criminal Defence Lawyer at Read & Co.