To argue or not to argue?

I once had a dilemma; it was when I conducted a criminal appeal in the Court of Appeal. It was for a charge of drug trafficking, an offence punishable with death by hanging.

The appellant (a person appealing against a decision) was caught when he arrived at the Kuala Lumpur International airport after flying in from an African country. The police officers arrested him after he cleared passport control because he behaved suspiciously. He arrived at 9pm but only went to the immigration at around 10am the next day. He did that because he was to only meet his contact, a man nicknamed “Boy”, at around that time.

The police search of his body yielded nothing. They then took him to Serdang Hospital to have him x-rayed. It revealed many foreign objects in his stomach. So they gave him laxatives to excrete those objects over a few days. He laid 70+ capsules; each varying between 5 cm and 5.5 cm, which yielded a gross weight of close to 1 kg, and a net weight of 600 grams of methamphetamine (“meth”).

I felt sorry for the officer and photographer that had to come around to the hospital after every load the appellant laid to mark, photograph and document the evidence. It was, undoubtedly, a shitty job but someone always has to do it.

They charged him for drug trafficking. In Malaysia this is a charge pursuant to section 39B of the Dangerous Drugs Act 1952 (“DDA52”). We call it the ’39B’.

The Appellant’s defence was this: he was persuaded to believe what he swallowed was some African herb after asking his employer what it was. His employer explained he wished to avoid the tax he would have to pay if he brought the herbs in officially. There was a hint of some duress about it too. Before the Appellant came to Malaysia, his employer flew him out of his country and had him stay in a different country. Once there, he was told he could not go home unless he first carried out this task.

I felt there were two plausible arguments that could be made from those facts.

The first was about the trial judge’s misapprehension of the evidence where it related to the Appellant’s knowledge of the drugs. I thought it was a fifty-fifty kind of argument; it had a wing and a prayer about it but I wasn’t sure whether it would fly. I was not going for a full acquittal but hoping for a reduction of the charge to section 39A DDA52, which was punishable only with imprisonment and whipping; no death. We call this the ’39A’.

39A is an offence of drug possession but with an increased penalty if found over a particular amount of drugs. Depending on the weight, the mandatory minimum is 2 years and 3 strokes of the rotan up to a minimum of 5 years and 10 strokes of the rotan. We can mentally appreciate that 39A is preferable sentence to 39B; but not having been through either, I am in no position to endorse one over the other.

The second argument I was less confident about; or to be honest, I didn’t think very much of it. The argument was the trial judge found the appellant guilty through the use of ‘double presumptions’. In order to appreciate what a double presumption is, I will first explain what a presumption is.

In law, a presumption is something the court can assume as having happened or exist once a particular set of facts are proven. For example, if X is proven in court to be in a room with a bag of drugs near him to which only he has the key, the court will presume he has knowledge of the drugs unless X can prove otherwise. This is known as a “true presumption”.

A presumption can be rebutted or challenged. X has to prove in court that he didn’t know what was in the bag. The standard of proof (SOP) X has prove this is on a balance of probabilities (BOP) i.e. it was likelier to have happened than not have happened. This is known as the “civil” BOP because it applies throughout civil litigation. It is a lower standard compared to the criminal BOP. The criminal SOP is beyond a reasonable doubt (BRD). The prosecution must prove BRD that X committed the offence. This means there must be no reasonable doubts about the evidence that X committed the offence for the court to convict him of the offence.

A double presumption occurs when a judge invokes a presumption because of another presumption. Following from the earlier example, let us say the bag of drugs contains 1 kg of meth. The court now presumes that since the amount of meth exceeds 50 grams, X is trafficking the drugs.

“Trafficking” is defined under the act as doing any of the following in relation to the drugs: supplying, distributing, procuring, delivering, sending, carrying, transporting, administering, storing, receiving, giving, selling, buying, concealing, keeping, exporting, importing and manufacturing.

Section 2 of the Dangerous Drugs Act 1952

In short, anything to do with drug dealing. Even if X only hides the drugs momentarily, he can potentially be charged with trafficking. The provision was meant to catch anybody and everybody involved in the act of bringing drugs into Malaysia and selling it, irrespective of the actual contribution to the drug dealing.

Double presumptions are not allowed.

The Federal Court said so in the decision of Muhammad bin Hassan v PP ]1998] 2 CLJ 170. Chong Siew Fai FCJ remarked ‘it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption as contended by the learned Deputy Public Prosecutor – a construction that ought to be adopted only if, upon the wordings of the two subsections, such an intention of the Parliament is clear, which, in our opinion, is not.”

I italicized the phrase above to show where His Lordship seems to suggest a double presumption could happen if Parliament legislated for it. The problem for the Public Prosecutor then was that the Dangerous Drugs Act 1952 did not expressly permit this. Surprisingly, the government did not take the cue until 15 February 2014 when a new section 37A was inserted into the Act to allow judges to use double presumptions.

The constitutionality of 37A came up for consideration in the Federal Court in Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780. The Federal Court struck down 37A. Richard Malanjum CJ delivering a unanimous decision held the provision was ‘a grave erosion to the presumption of innocence housed in‘ Article 5(1) read with Article 8(1) of the Federal Constitution.

So, even if the use of double presumptions is legislated for, it cannot stand because it is unconstitutional. The sum of this is you cannot apply double presumptions.

Coming back to the case, I was not confident about this double presumption argument because having read and re-read the record of appeal several times, it seemed clear to me the trial judge made a finding of actual possession and then invoked the presumption of trafficking, which was proper. Although there was some ambiguity about what the trial judge said about it half way through her decision, by the end of her judgment, it was clear to me she did not use double presumptions to convict my client.

Both arguments were put into our written submission and I only felt confident about the first argument. I thought it over the weekend and decided to just go with the first issue. I felt if I could not even pretend to convince myself, I would not fool the bench. And why waste all our time with it? It was the first argument or nothing.

The bench was quiet that day. Hardly interrupting my submission on the first argument. It was eerily quiet. It had been a while since I had a passive bench. It felt strange to just go on and on without even a remark. I concluded my first argument then sat down.

Finally, the court stirred to life.

“Counsel, don’t you have another argument to canvas?” asked the chairing judge.

I had, in my mind, removed the second argument entirely and thought there was only a single argument. “Not today, my lord,” I replied.

“Your written submission mentions two arguments. You have only canvassed one.”

“Ah yes. I don’t intend to canvas that, my lord. I will leave that for my written submission.”

“Considering the charge your client is facing shouldn’t you advance every argument in his favour?”

“Yes. But for myself, only those I think have a reasonable chance of success. There are too many holes in that argument, my lord. I think the High Court made it quite clear at page 45 of her ladyship’s grounds of judgment, there was a finding of actual possession before invoking the presumption of trafficking.”

Suddenly a voice came from my left. The right wing (RW) judge stirred.

“But what about what the judge wrote at page 23? “

Ironically, the RW judge then proceeded to use our arguments in our submission to argue the trial judge had applied a double presumption. I batted them away easily enough. I thought what a hilarious position to be in – arguing against my own argument!

After the RW judge’s questions were spent, I informed the court that since they were interested in that issue, I will submit on it. I did that in about five minutes by referencing the Federal Court decision of Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 786, concluding that clearly double presumption cannot apply and the judge had done so at page so and so of her judgment, and by doing so misdirected herself in law, then sat down.

I confess I was taken aback at the judge suggesting I should advance any and every argument in favour of my client. It prompted me to wonder:

Do I advance all arguments irrespective of their plausibility? Or should I only argue those arguments I think plausible enough for the court to accept and hopefully decide in my favour? To argue, or not?

I am of the latter school of thought: only advance plausible arguments that first pass muster with me. I felt this accorded with my experience and reading that judges are not impressed by the quantity of arguments raised; how they appreciated counsels that kept it cogent, interesting and to not more than three main arguments, where possible.

There were many silly and petty arguments I could have taken up that satisfied the criteria of “arguments in favour of my client” in that appeal, but ultimately nothing turned on them. It was akin to winning a battle but not the war. There was little point in that. And as officers of the court, are we not under a duty to use the court’s limited time respectfully and economically? I think it would be a disservice to the courts and general public to waste its time with implausible and ineffective arguments.

Peter Lyon’s counsels this in his book, Advocacy: A Practical Guide (2019, Wildy, Simmonds & Hill Publishing; page 208, paragraph 5.4). I share Nigel Pascoe QC’s thoughts on this:

The starting point is the preparation of your Grounds of Appeal. You must be absolutely ruthless in paring them down to the minimum. Leave out those half points, often minor issues of fact. They will haunt you before an unimpressed Court and they damage your credibility. …

Nigel Pascoe QC | Advocacy Plus: A Guide for Young Advocates (2018; Publish Nation) | Page 50

Jason L. Honigman articulates this in greater detail in his article The Art of Appellate Advocacy (Michigan Law Review (1966) Vol 64, pages 1055 – 1068):

“In planning a brief, one may be confronted with a number of available arguments that vary considerably in their degree of persuasiveness. In deciding which arguments to use, one may well accept the precept that if the strongest points are unlikely to result in victory, then there is very little chance whatever of winning the case. By limiting the argument to the strongest points, one adds emphasis to those points and avoids the danger of diverting the court’s attention. Moreover, the lesser arguments, when unacceptable to the court, may create the erroneous impression that the case depends on an argument which is intended only as an added buttress. Finally, a judge’s rejection of a subsidiary argument may color his impression of the soundness of the whole brief.”

Honigman also notes that many capable lawyers disagreed with this view. They believed in using all available arguments and issues. Their rationale is that since a lawyer cannot be sure which arguments will convince the court, they should advance all of them.

I find this view grounded in theory and self-interest rather than practice. To say we are incapable of evaluating the merit of an argument is absolute nonsense; as lawyers we are constantly evaluating evidence, facts and law for their utility and value. We do the same for arguments. I cannot help but think it a complete waste of the court’s time to advance arguments we believed had no chance of being accepted. That is why the criteria of plausibility is important, and an honest of appreciation of that plausibility is a lawyer’s duty and responsibility.

After ruminating the judge’s remarks, I confess I was shaken but, thankfully, not stirred.

The attending Deputy Public Prosecutor (DPP) did not seem to grasp the first argument, which the bench attacked him on. They came to the conclusion there was only so far they could go in that car and got out after ten minutes. They asked if I had anything to say in reply. I replied I did not think there was any argument worth replying to and had nothing to submit, unless the court requested for it. The bench reserved its decision for about 45 minutes then gave a short oral judgment.

They agreed with my first argument deciding that the trial judge misdirected herself on the facts. However, since the Appellant was found in actual possession of the drugs and the evidence of possession was overwhelming, the conviction under 39B stood. Although the trial judge’s reasoning was wrong, her decision was correct. The bench made no mention of my second argument. The appeal was dismissed.

I left the court with a niggling sense I deserved a 39A given the court agreed with my first argument. I did not deserve a full dismissal or acquittal. I felt I came close and yet fell, and fell so far away. But I recognized the court’s decision was reasonable given the facts.

I met the African interpreter for the case on the way out of court. When we were outside he introduced himself and congratulated me on my argument. I was puzzled. After introducing myself, I asked “Why do you congratulate me?”

“Because the court agreed with you.”

“Yes, but we still lost.”

“Oh, that is not your fault! It is very difficult for those who swallow drugs to win. You made a good argument and they agreed. That is the best you can do. I have never seen anyone win when drugs are found in their stomach.”

He smiled, patted me on my shoulder and walked off.

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