Can you be charged in Malaysia for smoking marijuana while overseas?

Recently, de facto Law Minister Dato Sri Dr Haji Wan Junaidi Tuanku Jaafar announced that the federal government has agreed to replace the mandatory death penalty for 23 offences, including Section 39B of the Dangerous Drugs Act 1952 (Act 234). As reported by Malaysiakini, this move is part of the government’s initiative to abolish the mandatory death penalty and replace it with other types of punishment at the court’s discretion.

Moreover, the proposed amendment to Act 234 is also relevant given the recent exploits of the Ministry of Health (MOH) in reassessing medical marijuana in our country. According to The Sun Daily, Health Minister Khairy Jamaluddin himself visited Thailand – the first Asian country to decriminalise cannabis – to learn more about the nation’s evidence-based applications and cannabis-related pharmaceutical products.

However, given the proximity of Thailand and the country’s popularity of late as a tourism destination for Malaysians, a new conundrum has risen regarding the use of medical marijuana in the country among our citizens. The Royal Malaysia Police (PDRM) has iterated that bringing back cannabis from Thailand is strictly prohibited, though Perlis Police Chief Datuk Surina Saad did admit that PDRM has no power to prevent anyone from taking the substance while in Thailand.

However, she stressed that Malaysians or anyone entering our country that fails a urine test will be arrested and taken action against. Indeed, on 10 September 2022, Utusan Malaysia reported that almost 20 per cent of Malaysians returning from Thailand were positive for marijuana after random urine tests conducted at the Padang Besar border and were subsequently arrested.

Given the circumstances, a legal question thus arises: Can Malaysians be arrested and charged for taking marijuana while in Thailand or any other country where it is legal upon their return to home soil? Specifically, can you be charged for drug abuse as per Act 234 while overseas?

Well, let’s examine the relevant laws to find out. Here’s everything you need to know:

Extra-territorial offences and the jurisdiction of Malaysian courts

In short, no, based on current laws, a Malaysian court does not have the power to oversee criminal cases such as consuming an illegal substance under Act 234 while overseas. This is because the matter is beyond the powers of our courts as it is simply beyond their jurisdiction. While there are extra-territorial offences that Malaysian courts have jurisdiction over such as cases in regards to terrorism, drug use and offences under Act 234 don’t fall under such a category.

However, despite the courts not having jurisdiction to hear the case, things are not as straightforward as it sounds. Under Section 37(k) of Act 234, if your urine tests positive for illegal substances, you are already presumed to have consumed or self-administered illegal substances as per Act 234. Section 37(k) of the said Act prescribes:

If a person is charged for an offence of consuming a dangerous drug or administering a dangerous drug to himself or suffering any other person to administer a dangerous drug to him, and any dangerous drug is found in the urine of the person charged as a result of a urine test conducted under section 31A, the person shall be presumed, until the contrary is proved, to have consumed the drug to himself or have suffered any other person to administer the drug to him in contravention of this Act or its regulations.

Furthermore, Section 31 of Act 234 also provides the power of arrest and seizure to any police officer or any officer of customs without a warrant any person whom they reasonably believed to have committed an offence against the Act. The key words here are “reasonably believe” as under Section 31, an individual can be arrested and investigated if there is reasonable suspicion that the person has consumed or self-administered illegal substances.

Additionally, Section 31A also provides the power to relevant authorities to conduct medical examinations such as a urine test for any person arrested on a charge of committing an offence against Act 234. Moreover, if an individual fails a urine test, the statutory presumption under Section 37(k) will apply for a charge under Section 15 of Act 234 below:

In other words, a person can be arrested and investigated under Section 15 of Act 234 if the relevant authorities reasonably believe that the individual has committed the offence of self-administration of illegal substances. Afterwards, if it is found that self-administration or consumption of illegal substances did occur, then the individual can be charged under Section 15 of Act 234.

The accused must rebut the statutory presumption under Section 37(k)

When an individual is charged under Section 15 of Act 234, it is presumed that the accused did the act until it is proven otherwise. Section 37(k) clearly prescribes that “until the contrary is proved, to have consumed the drug to himself in contravention of this Act or its regulations,”. Hence, if your urine tests positive, it is up to you to rebut the statutory presumption, on a balance of probability, that you didn’t take any illegal substances or in the context of the subject matter at hand, prove that you didn’t take illegal substances while in Malaysia.

Furthermore, the extra-territorial nature of the offence is a defence that an accused can only make after being charged under Section 15 of Act 234 and more importantly, it is up to the court to decide. As such is not an easy task as it could be complicated, laborious and expensive to prove such a matter in court. Not only do you need evidence that is admissible in court and potentially produce witnesses, but before your trial, you must also go through the stress of arrest, investigation and possibility of remand.

Admittedly, these are all rather complicated and hypothetical due to the jurisdiction limitations of Act 234. Moving forward, our lawmakers can make the process more straightforward by following the footsteps of another neighbouring country, Singapore. In 1998, the Singaporean government amended its Misuse of Drugs Act 1973 (the island nation’s equivalent to Malaysia’s Act 234) to add the provision “may be dealt with as if that offence had been committed within Singapore” under Section 8A (2)  of the Act.

Essentially, this amendment plugged the “loophole” of the Singaporean government not being able to charge a citizen or permanent resident who consumes drugs overseas. So, should Malaysia follow suit? Well, that is up to the lawmakers to sort out and decide.

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