DR.

ASMAR BINTI ABDUL RAHIM

Criminal law (group C) GLUP 2053 A191

GROUP 1

PUBLIC PROSECUTOR V. TANHA GHASSEM MOHAMADKAR AM

Brief of fact:

officer Tan Chong Ling (SP6) and his colleagues were conducting
their operation at the Arrival Hall of the Kuala Lumpur International
Airport (KLIA). While at baggage claim area F, SP6 observed that the
accused was acting suspiciously and continuously casting furtive
glances while looking terrified.

SP6 then proceeded to apprehend the accused while introducing

himself as a police officer and showed the accused his authority card.
SP3 examined the accused passport. After having conducted a body
search, SP6 found nothing incriminating. An examination of the
accused's luggage he was carrying also did not reveal anything illegal.

The accused was taken to the Serdang Hospital. According to SP6, the
accused looked terrified and his face was pale throughout the entire
journey. X-ray scanned was conducted at the hospital by Shahrolanuar
bin Ishak (SP4). The X-ray film showed that there were foreign bodies
in the stomach and the intestine of the Accused.

Charge section:

section 39B Dangerous Drugs Act for trafficking 338.63 grams

Methamphetamine .
Application:

under section 94 of the Penal Code to be successful, it must be

imminent, extreme and persistent at the time of the commission of the
offence. The question was whether the appellant might have acted
under duress which was imminent, extreme and persistent when he
committed the offence on 24.2.2010. The appellant failed to prove as
the 6th mobster nowhere to be seen witnessed by police officer at
KLIA. And consequently, the court finds there was no basis for
thinking that the accused was obsessed with such thoughts at the
material time to the extent that he was deterred from seeking police
protection in Malaysia.

Summary:

The right of private defence continues only so long as a reasonable

apprehension of the danger persists. The court found that the
prosecution has successfully proven a case beyond reasonable doubt.
The accused was found guilty as charged, convicted and sentenced to
death.
 KOH KENG GUAN V PP [2012] 10 CLJ

BRIEF OF FACT: The appellant who was the accused was caught at the Kuala Lumpur
International Airport (KLIA) whilst attempting to board a flight from Kuala Lumpur to
Frankfurt, German. The alarm was triggered when the accused walked through a detector. The
security officer then carried out a body check and felt some hard items on the accused’s legs. The
accused claimed that his legs were blistered. The officer found some bandages on the accused’s
thighs and calves. The accused refused to allow the officer to remove the bandages. When the
bandages were removed, three plastic packages were found bandaged on each thigh, and one
plastic package on each calf. All eight packages contained a total of 1836g of heroin. In his
defence, the accused testified that he was an innocent carrier, acting under duress and threat to
himself and his family with no knowledge of what he was carrying and he did that at the behest
of one Ah Hai.

Charges : Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 1836g of heroin

Application of Section 94 and the case of Koh Keng Guan v PP

As in the section 94 of Penal Code Act,it stated that nothing is an offence which is done by a
person who is threated by the others to do so.At that time of act,there is a threat for the instant
death to the person if they not obliged or follow the threats and they will face other
consequences.It is clearly stated in the act that,the act is not done by his own accord,but the
situation puts him to do the act inaccordance with the threats.

Based on the case discussed above,Koh Keng Guan v PP,it was held that the accused had been
detained and charged under the drug trafficking which contains 1836g of heroin that been carried
by the accused.He was detained at the airport and been brought up to the court and been
punished to the death.Acussed had bring this case to appeal and appealed.

Based on the appeal,he failed and there is prima facie on the case,the defence council fails to
prove the defence on the acussed.Although the accused defenced that he had no knowledge of
the carriage and it was done under the duress and threat.The defence failed because at first the
accused state of mind.The accused was found to have eight packages strapped to his thighs and
calves. They were concealed on the person of the accused. He had lied that his legs were
blistered and refused to allow PW1 to open the bandages or remove them for
examination.Another raised doubt is on the threat. The accused was not under any threat to lead
to his apprehension of instant death or to his life or limb.
Thus the defence council fails to prove the unreasonable doubt as the accused had not fulfil the
requirements for defence under section 94 of Penal Code.Based on the section 94,these are the
element required to raise a defence under the duress matters,there must be a threat,Threat must
be imminent, extreme and persistent,There must be one of instant threat of death and Threat must
be directed at the accused himself.

Summary : The learned judge has not erred in his finding, beyond reasonable doubt, that the
accused had actual possession of the eight plastic packages and the dangerous drugs, and that the
accused had not rebutted the presumption of trafficking under s. 37(da)(i). Hence, the appeal is
dismissed