Written by: Averroes
(1.0) Introduction
Yassin Sulaiman. 46 a Nasyid singer and composer, was charged in the Petaling Jaya Sessions Court as he was accused of cultivating 17 cannabis (ganja) plants in plastic pots at his house in Kondominium Casa Indah, Persiaran Surian Damansara Indah Resort Home, PJU 3, Kota Damansara.
Yassin Sulaiman's condominium
Prolific song, 'Mimpi Laila' sung by younger Yassin back in 2001
However, he pleaded not guilty to the drug charges. His offence of planting cannabis will be heard in the Sessions Court, while his drug trafficking charge where he purportedly trafficked 214 grammes of cannabis will be heard in the High Court.
Both of the offences occurred at the same time and date on 24th March at 5.30pm. Another drug related case involving a low-IQ man could be found here.
The two charges reads as follow;
(i) Drug-Trafficking Charge: Section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA), and punishable under section 39B(2) of DDA which carries death penalty or life imprisonment. If not sentenced to death, the convicted person would be sentenced up to 15 whippings.
(ii) Cultivating/Planting Cannabis Plants: Section 6B(1)(a) of the Dangerous Drugs Act 1952, which provides for imprisonment for life with whipping of not less than six strokes, if found guilty.
(1.1) Bail
Lawyer, Yusmadi Yussof argued that Yassin should get a bail, since he still suffered from trauma after divorce, has two schooling children and has sick parents. He has bipolar disorder and has been receiving psychiatric treatment at Universiti Kebangsaan Malaysia Medical Centre since 2009.
Two months prior, he had been treated at Pantai Hospital and still needs proper treatment.
Also, he was not involved in distributing or selling the cannabis as they were only used for personal use. It was for medicinal purposes as well.
The prosecution team argued that under section 41B of DDA, bail are not allowed for offences involving death penalty and on health issues, but the accused may still request for treatment in prison.
The court did not allow his bail and ordered his lawyers to make an application for him to be treated at the hospital while under custody by a medical officer. Court then set 18th May 2022 for the mention of case.
The court correctly followed the decision in Loh Chin Hei v Public Prosecutor [1982] 1 MLJ 31, that section 41B of DDA expressly excludes bail for trafficking and planting cannabis, and that section 3 of the Criminal Procedure Code (CPC) allows the bail to be excluded due to the subsequent enactment of the DDA.
Hence, court does not have discretion to provide bail for offences of trafficking and planting cannabis.
(2.0) Medical use
Yassin even conveyed a message to MP Muar, Syed Saddiq to consider allowing hemp and medical marijuana to be farmed for its economic and health benefits. Does Cannabis or ganja actually have medicinal values?
This is open to debate, but according to Sabir and Fadzli (2013), it is a type of drug and in Arabic it is known as al-mukhaddarat, the root word is mukhaddara which intoxicates people and causes their mind to be in a state of mental instability.
Cannabis contains many hazardous chemicals and could potentially impair a human brain, leading to schizophrenia. Before regulating or legalising it for medicinal purpose, thorough research must be conducted to the core.
A person's physical appearance, especially from the face causes redness of the eyes, and parches on the lips.
The consumption of haysisy (cannabis), is equated to alcohol. However, cannabis may have been found around the 6th-7th century, when the leader of the Haidar found it. After consuming the said cannabis, he felt invigorated, exhilarated, stronger and calmness.
That is one of the reasons why some groups advocate for its use in medicinal use or in certain circumstances. Whether effective or not, it depends on the abuse and the regulation of cannabis. If cannabis is still illegal, then there will always be underground sales and trafficking.
At least through regulation, medicinal purposes are allowed, while abuse or trafficking would still be penalized. According to Dr. Hawa Jaafar, overdose would be the main problem associated with cannabis and that legalising comes at the responsibility of being disciplined in the amount of intake.
This is in conformity to James Stuart Mill with his theory of utilitarianism, it is better to regulate certain offences.
(3.0) Law on Drugs
As mentioned in the charges, the relevant laws would be section 6B(1)(a) for cultivating cannabis and section 39B(2) for trafficking drugs, both under the Dangerous Drugs Act 1952.
In the Federal Court case of Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 494, the appellant (Muhammad Lukman) was charged under section 39B(1)(a) of the DDA and sentenced to death penalty for trafficking 3.01 litres of THC and 1.422 kg of THC and 279.81g of cannabis in the High Court.
The appellant appealed to the apex court and argued that the THC, a form of oil containing cannabis was for medicinal purposes to treat various ailments and to be sold online. He called his patient as a witness and a university lecturer to testify that it was for medicinal purposes.
The Federal Court held that, the appellant's charge was reduced from trafficking to possession only as under section 9 of the DDA, for five years jail, starting from the date of his arrest.
This is because, in order to prove presumption of trafficking under section 37(da) of DDA, there needs to be the exact amount/quantity and be scientifically determined through quantitative analysis by the chemist.
There could also be no alteration, tampering or contamination of the samples too.
However, court agreed that he was not authorised to sell, possess, manufacture, handle, process or sell the ganja for medicinal use, since Malaysia, especially the Minister have not under the DDA, allowed ganja to be cultivated for medicinal purposes.
There is 'no substantial research' to confirm that cannabis oil could cure maladies. Therefore, he has possession of the drugs without the authority.
(4.0) Conclusion
To conclude, planting or having a certain amount of cannabis is still illegal in Malaysia, despite attempts to say that it is for medicinal purposes. More research and investigations concerning cannabis is required, before any eventual regulation or legalisation.
For those being prosecuted in the meantime, then they still have the opportunity to defend themselves with legal representations from the gallows and whipping.
As stated before, the punishment for drug-trafficking brings the death penalty and that a foreigner challenged the law as unconstitutional.
It was in Letitia Bosman v Public Prosecutor and Other Appeals (No 1) [2005] 5 MLJ 277, mentioned that the death penalty was option in 1975, but in 1983 it became mandatory. Though, in 2017, the parliament amended it back to the 1975 version to make it optional again.
It's optional because, the accused can instead get the a life imprisonment plus whipping, if he satisfied certain conditions. The foreigner's appeal was dismissed, because even if it may be immoral and controversial, involving social issues, it is for Parliament to decide, not the judiciary.
Overall, the death penalty did not violate article 8(1) of the Federal Constitution, since it fulfilled the reasonable classification test and the intelligible differentia as it had a rational relation to a valid social object and no discrimination, since the law applies to a class of person offending the DDA.
(5.0) References;
Admin (March, 2022) Trafficking cannabis: No bail, Yasin gets treatment for bipolar. Retrieved from. https://malaysiagazette.com/2022/03/31/trafficking-cannabis-no-bail-yasin-gets-treatment-for-bipolar/
TheSunDaily (March, 2022) Singer Yasin Sulaiman charged with drug trafficking. Retrieved from, https://www.thesundaily.my/local/singer-yasin-sulaiman-charged-with-drug-trafficking-YH9018357
Faiz Zainuddin (March, 2022) Singer-composer yasin Sulaiman charged with trafficking cannabis. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/03/31/singer-composer-yasin-sulaiman-charged-with-trafficking-cannabis/
Sabir bin Abdul Ghani & Fadzli bin Adam. (2013) Pemulihan Dadah Menurut Perspektif Agama di Malaysia. Jurnal Hadhari, 6(1), Pp 75-85. Retrieved from, http://journalarticle.ukm.my/8179/1/PEMULIHAN_DADAH_MENURUT_PERSEPKTIF_AGAMA_DI_MALAYSIA.pdf
Aliaa Aaina Izyan Hasan. (September, 2018) Halalkan penggunaan ganja? Retrieved from, http://psasir.upm.edu.my/id/eprint/67109/1/Halakan%20penggunaan%20ganja.pdf
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