[2017] 6 MLJ
A
Letitia Bosman v Public Prosecutor
(Tengku Maimun JCA)
109
the prosecution case and that the prosecution has succeeded in proving its case
against the appellant beyond reasonable doubt, the appellant was convicted
and sentenced to death. Aggrieved, the appellant appealed to this court.
THE APPEAL
B
[23] Learned counsel for the appellant raised the following grounds of
appeal:
(a)
that the learned trial judge misdirected himself in the handling of the
presumptions under s 37(d) and (da) of the Act;
(b)
that the learned trial judge failed to appreciate the appellant’s defence;
and
(c)
that the mandatory death sentence provided for under s 39B(2) of the
Act is unconstitutional.
C
D
E
F
G
[24] On the first ground, learned counsel’s complaint was that at the end of
the prosecution case, there was no finding by the learned trial judge as to
whether he had relied on the presumption of possession under s 37(d) or the
presumption of trafficking under s 37(da) of the Act whereas at the end of the
defence case, His Lordship failed to make a finding as to which presumption
has or has not been rebutted on a balance of probabilities.
[25] As for the second ground of appeal, learned counsel submitted that the
learned trial judge had failed to appreciate the evidence on George and despite
a good Alcontara notice being given, the prosecution failed to investigate
George.
[26] In respect of the constitutional issue, learned counsel’s argument was
that the mandatory death sentence for trafficking in dangerous drugs provided
for by s 39B(2) of the Act is unconstitutional as it violates arts 5(1) and 8 of the
Federal Constitution and it is arbitrary, disproportionate and fails to take into
account the appellant’s individual mitigating circumstances.
H
I
[27] Learned counsel went through the historical developments of the case
law in relation to the mandatory death sentence and the position in several
jurisdictions including India, United States, Canada and also the position
taken by the Organisation of American States and the American Convention
on Human Rights. A string of cases were highlighted which we find no
necessity to reproduce.
[28] Of significance though is learned counsel’s reference to the decision of
the Privy Council in Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v
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