The Evolution Of The Double Presumption Rule

Legal Service Provider In Malaysia For Corporate Law, Legal Advice, Legal Assistance, Commercial Litigation And Arbitration

The Evolution Of The Double Presumption Rule

March 24, 2022 General Knowledge Litigation Advisory & Strategy 0

What is the double presumption rule?

It is a rule whereby it allows the court to automatically assume that if you are possessing drugs, you are automatically trafficking them/

PS: If you are charged for possessing drugs, the worst you can get is a life sentence. However, If you are charged for trafficking, you can get the death penalty. This rule essentially empowers the court to put you to death even if you are initially charged for drugs possession. 

Sounds weird? The court finally thinks so too. Let us look at how the court arrived at that thinking. 

The kickstarter – Muhammed Bin Hassan v Public Prosecutor

Briefly, Muhammed Hassan was charged for drug trafficking was sentenced to death. However, the court came to this conclusion by relying upon the fact that he was charged for possession of drugs. Since he was in possession of drugs, he was automatically presumed to be trafficking them. 

Muhammed Hassan appealed all the way to the Federal Court, pointing out the court should have proved both possession and trafficking individually and not presuming one over the other. 

The Federal Court agreed. In coming to its decision, the court noted that both possession and trafficking have to be established/ disproved individually i.e. a person cannot automatically be presumed to be trafficking drugs unless that person has been convicted for drugs possession. Even after assuming if there is a presumption, the public prosecutor must still prove that the person is trafficking drugs.

Parliament’s response to this issue

Dislike what they see, the parliament amended the Act and added a new section into the Act. Under the new section, namely section 37A into the Act (Dangerous Drug Act), which states the court is free to presume anything they want as long as one of the offenses (be it possession or trafficking) is established i.e.:

  1. If the public prosecutor successfully establishes a drug possession offense against a person, he is automatically be caught for drug trafficking; or
  2. If the public prosecutor successfully establishes a drug trafficking offense against a person, he is automatically be caught for drug possession. 

More problems looming over the horizon – Alma Nudo Atenza v Public Prosecutor and Another Appeal

In this case, Alma and Orathai were charged with drug trafficking. The prosecution relied on section 37A to obtained a conviction against both Alma and Orathai.

Both Alma and Orathai argued that section 37A of the Act violates Articles 5 and 8 of the Federal Constitution.

As Article 5 guarantees a person his right to life and personal liberty while Article 8 provides that all persons are equal before the law and entitled to the equal protection of the law, section 37A has run afoul with the two articles as instead of whoever is accused of a crime is presumed to be innocent until proven guilty, Section 37A reversed that concept and placed the burden on the accused to prove his innocence after being presumed guilty of possession and trafficking drugs. The court duly agreed with this point of argument and held that section 37A is unconstitutional. 

The current stand on the double presumption rule

That is the current stand as of now i.e. no more double presumption. We will just have to continue to monitor and wait and see if there is any update on this matter.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.

For further inquiries, please email us at


Leave a Reply

Your email address will not be published. Required fields are marked *