Arrested for Drug Offences in Malaysia: What You Need to Know
Arrested for Drug Offences in Malaysia: What You Need to Know
Imagine this: You’re at the airport, excited for your upcoming trip. Your bags are packed, your passport is ready, and you’re looking forward to the adventure ahead.
But suddenly, you’re escorted away from the check-in counter and brought into an interrogation room. Officers are staring, asking you questions you’ve never expected to hear: ‘Do you know anything about drug trafficking? Is anyone else involved?’
You are arrested for drug offences in Malaysia. What do you need to know and what should you do?
In Malaysia, the offence of drug trafficking is stipulated under Section 39B of the Dangerous Drugs Act 1952 (DDA) whereby once the offence is proven, the mandatory death penalty shall be imposed once proven. However, by virtue of Section 54 of the Abolishment of Mandatory Death Penalty Act 2023, the mandatory death penalty has since been abolished.
As a result, this Act made two key changes to Section 39B of the Dangerous Drugs Act:
- Reduction in Whipping: The minimum number of whippings for a drug trafficking conviction was lowered from 15 to 12
- Abolition of Discretionary Life Sentence Conditions: The law removed Sections 39B(2A) and 39B(2B) of DDA, which previously allowed the court to impose a life sentence with whipping instead of the mandatory death penalty, if certain conditions were met. These conditions included factors like no involvement in drug dealing, no agent provocateur, and assisting enforcement
With these sections abolished, the court now has broader discretion to decide on the sentence. Judges can consider all relevant factors in the case when deciding whether to impose a life sentence (with 12 strokes of whipping) or the death penalty, without being restricted by the previous conditions.
To prove drug trafficking in Malaysia, four key elements must be established. If proven, the court may presume intent to traffic under Section 37(da) of DDA:
- the substance is a dangerous drug;
- the accused has control over it;
- the quantity exceeds the legal limit; and
- the accused knows it’s a dangerous drug.
So, what defences can you rely on if you are arrested for drug offences in Malaysia?
The “innocent carrier” defence is used when one admits to carrying drugs but deny knowing the content. However, this is rarely accepted by courts as Judges often view it as an afterthought or find the accused guilty of “wilful blindness” — meaning they ignored obvious signs of the crime.
By the same token, the defence of insanity or unsoundness of mind, under Section 84 of the Penal Code, may be raised. This defence argues that the accused was unable to understand the nature of their actions or the wrongfulness of their conduct due to a mental impairment during the offence. For instance, if someone with a mental illness was coerced or manipulated into transporting drugs, but was unable to recognize the illegal nature of it due to unsoundness of mind, they may raise the defence of insanity.
Another defence often raised is duress as provided under Section 94 of the Penal Code. This defence can be raised when the accused was forced to commit the act due to a threat of immediate death. The duress must be ‘imminent, extreme and persistent’. To successfully rely on this defence, the accused must prove they were compelled by a threat that reasonably caused them to fear instant death if they didn’t comply. The defence is only valid if the accused did not act voluntarily or fear that death will be the consequence.
Article contributed by Wilson Tan and Olivia Chai.
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