Nigerian discharged, acquitted of drug trafficking
KUCHING: A Nigerian man was yesterday discharged and acquitted by the Federal Court for drug trafficking which he allegedly committed on June 7, 2016.
The appellant, Jonas Chihurumnanya, was charged under Section 39B(1)(a) of the Dangerous Drugs Act 1952, which is punishable under Section 39B(2) of the same Act.
He was charged with allegedly trafficking 158.3g of methamphetamine at midnight on June 7, 2016 at the carpark of a fast-food restaurant in Tabuan Jaya, here.
The appellant was originally charged with another accused who had been convicted by the High Court and Court of Appeal, and has been given the death penalty.
The Federal Court, led by Datuk Seri Mohd Zawawi Salleh, and comprised Datuk Nallini Pathmanathan and Datuk Abdul Rahman Sebli unanimously found that the High Court erred in concluding that the appellant had mens rea (criminal intent) of possession as the circumstantial evidence did not irresistibly point towards the appellant having knowledge of the alleged drugs in the boot of the car he was driving.
In the absence of knowledge, the element of possession as required under the law was not established by the prosecution.
Further, the Federal Court held that there was a serious misdirection by the trial judge when he invoked both the statutory presumption under Section 37(d)(da)(xvi) of the Dangerous Drugs Act 1952, and at the same time relied upon Section 2 of the Dangerous Drugs Act 1952 to prove the element of trafficking.
This misdirection had prejudiced the appellant because it related to the burden of proof placed on the appellant that he had to discharge.
For all these, the Federal Court was of the firm opinion that, and his conviction and sentence, was not safe.
Consequently, the Federal Court allowed the appeal and set aside the conviction and sentence by the lower courts. The appellant was thereafter acquitted and discharged.
Prior to hearing the appeal proper, the Federal Court judges had also allowed three motions filed by the appellant’s counsel, Satinder Singh Sandhu, in which the appellant’s letter to the learned trial Judge, cautioned statement and another police report were allowed to be included as part of the appeal records.
The appellant’s application to have his Petition of Appeal amended was also allowed.
The appellant was represented by Satinder Singh Sandhu, Muhammad Izayyeem Azim and Lim Vui Seng while Deputy Public Prosecutor How May Ling prosecuted.
He was represented by other counsels at the lower courts.