3106(A)

IN THE FEDERAL COURT AT PUTRAJAYA

CRIMINAL APPEAL NO: 05(M)-300-12-2021(B)

BETWEEN

HADIRMAN BIN GHANI …APPELLANT

PUBLIC PROSECUTOR ...RESPONDENT

TEAM MEMBERS:

SENIOR COUNSEL: NUR HASYA AIMAN BINTI AMIR

JUNIOR COUNSEL: NUSHAIBAH BINTI BADRUDDIN

MEMORIAL FOR THE APPELLANT

(Pleadings: 2199 Words)

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS i
INDEX OF AUTHORITIES ii
STATEMENT OF JURISDICTION iv
STATEMENT OF FACTS v
QUESTIONS PRESENTED vi
SUMMARY OF PLEADINGS vii
PLEADINGS 1
ISSUE I 1
THE PROSECUTION SHOULD PROVE THE NET WEIGHT OF THE DRUGS AS IT IS
INCUMBENT TO THE ACCUSED CHARGED 1
(A) The Quantitative Analysis is One of the Sentencing Process 1

(B) The Seriousness of the Penalty 2

ISSUE II 3
THE APPELLANT IS NOT GUILTY BECAUSE THE PROSECUTION HAD FAILED
TO PROVE THE CASE BEYOND REASONABLE DOUBT 3
(A) The Discrepancy in the Weight of Drugs 3

(B) The Non-Exclusive Possession 4

ISSUE III 5
THE DRUGS STATED IN DELTA-9 CHARGES HAS MEDICINAL PURPOSE 5
(A) The Therapeutic Values of Delta-9 Have Medicinal Purpose 6

(B) The Practice of Medicinal Delta-9 in Commonwealth Countries 7

ISSUE IV 8
THE DRUGS STATED IN DELTA-9 CHARGES CANNOT BE CAUGHT IN THE AMBIT
OF THE DDA 1952 8
(A) The Medicinal Drugs are not Dangerous Drugs within the DDA 1952 8

PRAYERS FOR RELIEF 11

 3106(A)

LIST OF ABBREVIATIONS

CDCR 1984 Control of Drugs and Cosmetic Regulations 1984 [P.U(A) 223/84]

CINV Chemotherapy-induced Nausea and Vomiting

CLJ Current Law Journal

COA Court of Appeal

DDA 1952 Dangerous Drugs Act 1952 [Act 234]

Delta-9 Delta-9 Tetrahydrocannabinol

FC Federal Court

HIV Human Immunodeficiency Virus

MLJ Malayan Law Journal

MOH Minister of Health

PP Public Prosecutor

SCND Single Convention on Narcotic Drugs

SDA 1952 Sale of Drugs Act 1952 [Act 368]

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INDEX OF AUTHORITIES

STATUTES / REGULATIONS
Courts of Judicature Act 1964 [Act 91]…………………………………………….…..iii
Dangerous Drugs Act 1952 [Act 234]………………………………iii, iv, v, 2, 3, 8, 9, 10
Evidence Act 1950 [Act 56]……………………………………………………………...7
Narcotic Drugs Act 1967 [Act 56]……………………………………………………….8
Poison Act 1952 [Act 366]……………………………………………………………….9
Sale of Drugs Act 1952 [Act 368]………………………………………………………..6
Control of Drugs and Cosmetics Regulations 1984 [P.U(A) 223/84]………………...7, 9
Dangerous Drugs Regulations 1952 [L.N. 555 of 1952]...……………………..……….2
Misuse of Drugs Regulations 2001 [No 3998]…………………………………………..7

CASES
Allard v Canada [2016] 3 FCR 303 (FC)………………………………………………..7
Azizan Yahaya v Public Prosecutor [2012] 8 CLJ 405 (COA)………………………….4
Ibrahim Mohamad & Anor v Public Prosecutor [2011] 4 CLJ 113 (FC)……………….5
Magendran Mohan v Public Prosecutor [2011] 1 CLJ 805 (FC)….…………………….1
Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 494
(FC).…………………………………………………………………………...1, 2, 3, 4, 9
Ong Lock Soon v Public Prosecutor [2012] 2 MLJ 641 (COA)…………………………9
Public Prosecutor v Baddeley Tie Yew Song & Anor and Other Cases [2014] 9 MLJ 222
(HC)………………………………………………………………………………...3, 4, 5
Public Prosecutor v Chong Joon Hong [2012] 8 MLJ 153 (HC)...…………...................3
Public Prosecutor v Fom It Cheong [1991] 3 CLJ 524 (HC)……………………………5
Saravanan Chandaram v Public Prosecutor [2020] 2 SLR 95 (COA)…………………..1
Subramaniam Arumugam v Public Prosecutor [2000] 2 MLJ 193 (FC)…………………4

BOOKS
British Medical Association, Therapeutic Uses of Cannabis (CRC Press, 1997)……….6

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World Health Organization, ‘WHO Expert Committee on Drug Dependence Forty-first

Report’ (2019) 1018 WHO Technical Report Series
https://apps.who.int/iris/bitstream/handle/10665/325073/9789241210270-eng.pdf?ua=1
accessed 18 November 2021…………………………………………………………….6

ARTICLES
Kevin P. Hill, MD, MHS, ‘Medical Marijuana for Treatment of Chronic Pain and Other
Medical and Psychiatric Problems a Clinical Review’ (23 June 2015) 313(24) JAMA
https://static1.squarespace.com/static/5dab51c52920995e635d4295/t/5e14ca0f141f9b6e
39215fd6/1578420752788/Hill2015JAMA.pdf accessed 18 November 2021………….6

N. a, ‘Classification of Controlled Drugs’ European Monitoring Centre for Drugs and

Drug Addiction https://www.emcdda.europa.eu/publications/topic-
overviews/classification-of-controlled-drugs/html_en accessed 20 November 2021……6

NEWS
Ashman Adam, ‘Got Scientific Proof of Medical Marijuana? Come Register with NPRA,
Khairy Says’ (Kuala Lumpur, 17 November 2021) Malay Mail
https://www.malaymail.com/news/malaysia/2021/11/17/got-scientific-proof-of-
medical-marijuana-come-register-with-npra-khairy-sa/2021592 accessed 18 November
2021……………………………………………………………………………………...6

N. a, ‘UN Commission on Narcotic Drugs Reclassifies Cannabis to Recognize Its

Therapeutic Uses’ (4 December 2020) World Health Organization
https://www.who.int/news/item/04-12-2020-un-commission-on-narcotic-drugs-
reclassifies-cannabis-to-recognize-its-therapeutic-uses accessed 18 November 2021…..6

R. Loheswar, “Khairy: Medical Marijuana Can be Used in Malaysia if It Passes National

Regulation’ Malay Mail (Kuala Lumpur, 9 November 2021)
https://www.malaymail.com/news/malaysia/2021/11/09/khairy-medical-marijuana-can-
be-used-in-malaysia-if-it-passes-national-regu/2019592 accessed 18 November 2021…9

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STATEMENT OF JURISDICTION

By virtue of Section 87(1) of the Courts of Judicature Act 1964 [Act 91], this Honourable
Court has jurisdiction to hear and determine any criminal appeals against any decision of
the Court of Appeal in its original jurisdiction.

The Court of Appeal found that the Appellant guilty under Section 39B(1)(a) of the
Dangerous Drugs Act 1952 [Act 234] for possession of dangerous drugs and thus
sentenced the Appellant to seven years’ imprisonment and ten strokes of the cane.

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STATEMENT OF FACTS

1. The Appellant’s house was raided by the police team. Upon the search, the house
was found in the condition of preparing the cannabis oil for medicinal purpose.
The items that have been found in the house were card boxes consisted of Pos
Laju receipts and packages, 93 bottles filled with cannabis oil, and a box of
wrapping papers.

2. The items were given to the investigating officer (SP9) and a chemical analysis
were conducted by the Chemist (SP6) to items that were suspected to be drugs.
However, SP6 did not conduct the quantitative analysis. The suspected drugs were
marked as AA-1 weighing 232g, AA-2 weighing 13.39g, Delta-9 weighing
505.3g, U-2 weighing 375.3g, U-1 weighing 460.9g and S-1 weighing 33.52g.

3. In the High Court, the Appellant who just did what SD2 had asked him to fill the
oil into the bottles and did not know that there were drugs in the house, were
charged under Section 39B(1)(a) of the Dangerous Drugs Act 1952 [Act 234]. The
cannabis oil was sold on the website “Health-care”. Muhammad Fakhri bin Taha
(SD3) testified that the Appellant had sold the medicinal cannabis through Social
Media platform and Shopee which help various customer from ailments. In
addition, Tamim bin Shamsuri (SD6) vouched for the effectiveness of taking
cannabis for Beta-Thalassemia Intermedia and minor ailments.

4. An expert, Professor Dr. Hazim bin Mokhtar (SD7) testify that cannabis was
acknowledged to have some health benefits in Malaysia. Moreover, he disputed
that the methodology used by SP6 was insufficient and he should have used an
additional methodology, namely High Performing Liquid or Chromatography
which was solvent.

5. The Appellant appeal but the Court of Appeal dismissed the First and Second
charges on the grounds that the quantitative analysis on the Delta-9 is not
incumbent. The Appellant appealed to this court against the convictions and
sentences in respect of the two Delta-9 charges.

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QUESTIONS PRESENTED

1. Whether there are statutory requirements under the Dangerous Drugs Act 1952
[Act 234] and jurisprudence from the previous court decision that require the
Prosecution to prove the net weight of the drugs?

2. Whether the Prosecution has established a drug trafficking charge beyond

reasonable doubt under Section 39B(1)(a) of the Dangerous Drugs Act 1952 [Act
234]?

3. Whether the dangerous drugs stated in Delta-9-Tetrahydrocannabinol charges

were medicinal cannabis?

4. Whether Delta-9-Tetrahydrocannabinol cannot be caught within the ambit of the

Dangerous Drugs Act 1952 [Act 234]?

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SUMMARY OF PLEADINGS

The counsels for the Appellant will submit on four issues which are: -

I.
The prosecution should prove the net weight of the drugs as it is incumbent to the
Appellant charges. The quantitative analysis forms an essential part in the sentencing
process. A scientific analysis must be conducted to know the composition of the drug. In
addition, the seriousness of the penalty of drug trafficking charge should be taken
seriously. The Appellant should not be convicted if the net weight of the drug cannot be
determined.

II.
The Appellant is not guilty because the Prosecution has not established the case beyond
reasonable doubt. This is because there is discrepancy between the weight of the drug in
the High Court charge with the actual weight seized by the police team. Moreover, the
Prosecution also excluded the possibility of the access of other people to the Appellant’s
house. These two reasons are sufficient to raise a doubt in the charge of the Appellant of
drug trafficking.

III.
The drugs stated in Delta-9 charges have medicinal purpose. This is because the
therapeutic values of Delta-9 are within the definition of medicinal purpose in Malaysia.
Besides, its medical usage that has been practised in the Commonwealth countries should
be judicially notice by the court.

IV.
The drugs stated in Delta-9 charges cannot be caught within the ambit of the DDA 1952.
This is because the drugs with medicinal value are not to be included within the meaning
of dangerous drugs and the narcotic drugs with medicinal purpose shall be made available
to the public.

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PLEADINGS

ISSUE I
THE PROSECUTION SHOULD PROVE THE NET WEIGHT OF THE DRUGS
AS IT IS INCUMBENT TO THE APPELLANT CHARGES

1. The net weight of the drugs is incumbent to ascertain the Appellant’s charges
because of it is one of the sentencing process and significance to the offence that
amount to the death penalty.

(A) The Quantitative Analysis is One of the Sentencing Processes

2. In Magendran Mohan v Public Prosecutor (PP),1 this Honourable Court specified

that the evidence by the Prosecution must be scrutinised properly and not
perfunctorily, cursorily, or superficially.

3. In determining the drug trafficking, the quantity of the drugs forms an essential
part of the charge as it is one of the sentencing processes.2 Hence, a scientific
analysis must be conducted to know the composition of the drugs because it is
also highly susceptible to alteration, tampering or contamination.3

4. Moreover, in Saravanan Chandaram v PP,4 the Singaporean Court of Appeal

(COA) did not establish the cannabis charge because the quantity of vegetable
fragments had mixed with the cannabis and the surmount of the drugs cannot be
determined.5

5. Likewise in the present case, the quantitative analysis should be conducted as it

is included in the sentencing process.6 Its weight and quantity are important and

1
[2011] 1 CLJ 805 (FC) 824 [25].
2
Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 494 (FC) 508 [26].
3
ibid. 510 [31].
4
[2020] 2 SLR 95 (COA) 163 [188].
5
ibid.
6
Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 494 (FC) 508 [26].

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represent the core of the prosecution’s case. Failure of SP6 to conduct the
quantitative analysis7 shows that he cannot confirm the drugs’ weight or quantity.

6. Furthermore, if the quantitative analysis is not conducted,8 the original

composition of the drugs cannot be confirmed because of the risk to modification
and impurity with the oil.9 Thus, the Prosecution should not neglect the element
of the drugs’ net weight as it is important to know the exact amount of the drugs
to avoid any doubt.

7. Hence, it is important to know the weight of dangerous drugs and it should not be
neglected by the Prosecution as it is mandatory to clarify in the sentencing process
against the Appellant’s charges.10

(B) The Seriousness of the Penalty

8. In Regulation 21(1) of the Dangerous Drugs Regulations 1952,11 any inspector

may at all reasonable times inspect all weights, measures and instrument for
weighing used by or in the possession of any person or on any premises for use
for weighing drugs.

9. The offence of drug trafficking carries a death penalty.12 It is essential for the
Prosecution to give the best quality of evidence because of the seriousness of the
penalty.13 Also, dangerous drugs are difficult to identify, requiring a quantitative
analysis to ascertain their content and nature.14

7
Moot Problem, 2 [3].
8
ibid.
9
ibid, 2 [4].
10
Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 494 (FC) 510 [31].
11
[L.N. 555 of 1952].
12
Dangerous Drugs Act 1952 [Act 234] Section 39B(2).
13
Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 494 (FC) 510 [31].
14
ibid.

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10. Additionally, the weight or quantity of the drugs signify the basis of the
Prosecution’s case.15 If the Prosecution fails to determine the net weight of the
drugs, the Appellant cannot be penalized.16

11. In the current case, the Prosecution should do the quantitative analysis because
the regulation requires for the inspector to inspect all weights shows that the
weight of the drugs is relevant to the charge.17 The quantity of the drugs is
extremely vital for the Prosecution to prove the offence of drug trafficking. The
Appellant cannot be penalized for the uncertainty of the quantity of the drugs.

12. Thus, because of the gravity of the death penalty, the net weight of the drugs must
be determined to establish the Appellant's charges. Every piece of evidence must
be of high quality before the accused being charged for the drug trafficking.

ISSUE II
THE APPELLANT IS NOT GUILTY BECAUSE THE PROSECUTION HAD
FAILED TO PROVE THE CASE BEYOND REASONABLE DOUBT

13. The Prosecution had failed to prove the case beyond reasonable doubt because
there is difference in the weight of the drugs and lack of possession over the house.
These two reasons create a doubt that the Appellant had committed the offence
under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA 1952).18

(A) The Discrepancy in the Weight of Drugs

14. The difference of the weight shows the incompetency of Prosecution in bringing
the evidence. In PP v Chong Joon Hong,19 the accused being acquitted because
there was unexplained considerable difference between the gross weight of the

15
Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 494 (FC) 510 [29].
16
ibid.
17
Dangerous Drugs Regulations 1952 [L.N. 555 of 1952] Section 21(1).
18
[Act 234].
19
[2012] 8 MLJ 153 (HC) 164 [29]; Public Prosecutor v Baddeley Tie Yew Song & Anor and Other
Cases [2014] 9 MLJ 222 (HC) 253 [81].

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drugs after the seizure and their net weight as found by the Chemist.20 It was
unsafe to rely on the inconsistencies of the Prosecution’s evidence.21

15. In addition, the methodology used by the Chemist (SP6) was insufficient.22 In
Subramaniam Arumugam v PP,23 the Honourable Court stated that the Thin Layer
Chromatography test is a basic test to do the analysis of cannabis.24 Furthermore,
the Honourable Court in Muhammad Lukman bin Mohamad v PP,25 stated the
fundamental principle that an accused should know with certainty the amount of
the drugs in a trafficking charge against him.26

16. By applying to the current case, the Appellant was charged for trafficking 1,422g
of Delta-9,27 In contrast, the total of seized drugs was 1341.5g.28 The
contradiction drugs’ weight raised a doubt regarding the authenticity of the
evidence.

17. The failure of SP6 to perform the basic test29 raised the doubt in the chemical
analysis of the suspected drugs. Furthermore, the certainty of the amount of the
drugs is a fundamental principle30 that the Prosecution must meet before
proceeding the case against the Appellant.

18. Therefore, the Prosecution had failed to prove the case beyond reasonable doubt
by showing an inconsistency with the net weight of the drugs.

(B) The Non-Exclusive Possession

20
[2012] 8 MLJ 153 (HC) 164 [29]; Public Prosecutor v Baddeley Tie Yew Song & Anor and Other
Cases [2014] 9 MLJ 222 (HC) 253 [81].
21
ibid.
22
Moot Problem, 3 [13].
23
[2000] 2 MLJ 193 (FC) 199 [I].
24
ibid.
25
[2021] 4 MLJ 494 (FC) 501 [32].
26
ibid.
27
Moot Problem, 2 [5].
28
ibid, [4].
29
ibid, [3].
30
Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 494 (FC) 501 [32].

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19. In the case of Azizan Yahaya v PP,31 the accused was acquitted by the COA
because the prosecution failed to exclude the possibility that other people had
access to the drawer that contained cannabis.

20. Also, in Ibrahim Mohamad & Anor v PP,32 the Honourable Court stated that it is
common knowledge that possession is a necessary component of a drug
trafficking charge. Furthermore, in the case of PP v Fom It Cheong,33 the
prosecution failed to establish that the accused had the care and management of
the house where the drugs were found. The accused could not be deemed as the
occupier as other people had access to the house.34

21. Similarly, in the case, the Prosecution should not exclude the possibility of other
people who have access to the house. This is because SD2 and SD3 went to the
Appellant’s house to send the items35 and to help in packing the “oil”.36 The
Appellant is not the only one who have access to the house. This shows that the
Prosecution cannot determine the exclusive possession of the Appellant over the
drugs.

22. Thus, the possibility of other people to have access to the Appellant’s house left
in doubt that the Appellant had exclusive possession over the drugs.

ISSUE III
THE DRUGS STATED IN DELTA-9 CHARGES HAVE MEDICINAL PURPOSE

23. The drugs stated in Delta-9 charges have medicinal purpose because the
therapeutic values of Delta-9 are within the definition of medicinal purpose and
its medical usage has been practiced in the Commonwealth countries.

31
[2012] 8 CLJ 405 (COA) 415 [16].
32
[2011] 4 CLJ 113 (FC) 121 [6].
33
[1991] 3 CLJ 524 (HC) 528 [B]; Public Prosecutor v Baddeley Tie Yew Song & Anor and Other
Cases [2014] 9 MLJ 222 (HC) 238 [49].
34
ibid.
35
Moot Problem, 3 [7].
36
ibid, [10].

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(A) The Therapeutic Values of Delta-9 Have Medicinal Purpose

24. Section 2 of the Sale of Drugs Act 195237 (SDA 1952) defines the medicinal
purpose as any of the purposes of either alleviating, treating, curing, or preventing
a disease or a pathological condition or symptoms of a disease, or inducing
anaesthesia or controlling body weight.

25. Also, the British Medical Association38 and American Medical Association39
reported that Delta-9 are effective in providing relief from chemotherapy-induced
nausea and vomiting (CINV), provide significant analgesic effects in patients with
chronic pain due to advanced cancer, and promote weight gain in patients with
Human Immunodeficiency Virus (HIV).

26. Furthermore, the World Health Organization40 recommended the cannabis and its
derivatives to be reschedule to Schedule I of the Single Convention on Narcotic
Drugs (SCND)41 for its therapeutic value and it had been accepted by the United
Nation Commission on Narcotic Drugs.42

27. Besides, the Minister of Health (MOH), Yang Berhormat Khairy Jamaluddin43
stated that with sufficient scientific evidence of its quality, safety and efficiency,

37
[Act 368].
38
British Medical Association, Therapeutic Uses of Cannabis (CRC Press, 1997).
39
Kevin P. Hill, MD, MHS, ‘Medical Marijuana for Treatment of Chronic Pain and Other Medical and
Psychiatric Problems a Clinical Review’ (23 June 2015) 313(24) JAMA
https://static1.squarespace.com/static/5dab51c52920995e635d4295/t/5e14ca0f141f9b6e39215fd6/157842
0752788/Hill2015JAMA.pdf accessed 18 November 2021.
40
World Health Organization, ‘WHO Expert Committee on Drug Dependence Forty-first Report’ (2019)
1018 WHO Technical Report Series
https://apps.who.int/iris/bitstream/handle/10665/325073/9789241210270-eng.pdf?ua=1 accessed 18
November 2021.
41
N. a, ‘Classification of Controlled Drugs’ European Monitoring Centre for Drugs and Drug Addiction
https://www.emcdda.europa.eu/publications/topic-overviews/classification-of-controlled-drugs/html_en
accessed 20 November 2021.
42
N. a, ‘UN Commission on Narcotic Drugs Reclassifies Cannabis to Recognize Its Therapeutic Uses’ (4
December 2020) World Health Organization https://www.who.int/news/item/04-12-2020-un-commission-
on-narcotic-drugs-reclassifies-cannabis-to-recognize-its-therapeutic-uses accessed 18 November 2021.
43
Ashman Adam, ‘Got Scientific Proof of Medical Marijuana? Come Register with NPRA, Khairy Says’
(Kuala Lumpur, 17 November 2021) Malay Mail
https://www.malaymail.com/news/malaysia/2021/11/17/got-scientific-proof-of-medical-marijuana-come-
register-with-npra-khairy-sa/2021592 accessed 18 November 2021.

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medical cannabis may be marketed after being registered under the Control of
Drugs and Cosmetics Regulations 198444 (CDCR 1984).

28. In the current case, the evidence from the medical bodies and the MOH shows
that Delta-9 have medicinal purpose as it may alleviate a pathological condition
by relieving CINV, induce anaesthesia for chronic pain and control the body
weight of the HIV patients.45 Besides, the reschedule of Delta-9 in the SCND and
the permission to be marketed by the MOH46 also proved that its therapeutical
value is beneficial to the public47, and it is reasonable to apply in Malaysia.

29. The therapeutic value of Delta-9 has fulfilled the definition of medicinal purpose
and therefore, should be considered to possess medicinal purposes.

(B) The Practice of Medicinal Delta-9 in Commonwealth Countries

30. According to Section 57(1) of the Evidence Act 195048, the court shall take judicial
notice of the Commonwealth countries and all public Acts passed by the
Parliament of United Kingdom. Besides, no fact of which the court will take
judicial notice need be proved.49

31. In Allard v Canada,50 the Canadian Federal Court held that the severe restriction
on the access to medical cannabis under medical cannabis regime had forced the
plaintiff to choose between medication and necessities and therefore, infringed
the plaintiff’s fundamental liberty.

32. Moreover, United Kingdom51 allows a person to order cannabis-based products

for medicinal use in humans if the product is a special medicinal product for the
prescribed use or a medical product with marketing authorisation. Besides,

44
[P.U(A) 223/84].
45
Moot Problem, 4 [16].
46
ibid, 3 [10].
47
ibid, 3 [11].
48
[Act 56].
49
Evidence Act 1950 [Act 56] Section 56.
50
[2016] 3 FCR 303 (FC) 387 [236].
51
Misuse of Drugs Regulations 2001 [No 3998] Section 16A(1).

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Australia52 permits the cultivation and production of cannabis and cannabis resin
for medicinal purpose with medicinal cannabis license.

33. In the current case, it is compulsory for the court to take judicial notice of the
Commonwealth countries and the Acts of United Kingdom. The Commonwealth
countries has legalised the usage of medicinal cannabis including the Delta-9 as
it was beneficial to public.53 Besides, the laws of the Commonwealth countries
also ensure the availability of medicinal Delta-9 to public while imposing
restrictions in their practice.

34. Therefore, this Honourable Court should take judicial notice on the practice of
medicinal Delta-9 in the Commonwealth countries.

ISSUE IV
THE DRUGS STATED IN DELTA-9 CHARGES CANNOT BE CAUGHT IN THE
AMBIT OF THE DDA 1952

35. The drugs stated in Delta-9 charges cannot be caught in the ambit of the DDA
1952 because the medicinal drugs are not intended to be within the meaning of
dangerous drugs.

(A) The Medicinal Drugs are not Dangerous Drugs within the DDA 1952

36. Section 2 of the DDA 195254, the dangerous drugs is defined as any drugs or
substance which is for the time being comprised in the First Schedule. Meanwhile,
Section 2 of the SDA 195255 defines drug as any substance or product intended to
be used on humans, whether internally or externally, for medicinal purpose.

52
Narcotic Drugs Act 1967 [Act 56] Section 8E.
53
Moot Problem, 4 [16].
54
[Act 234].
55
[Act 368].

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37. The purpose of the DDA 195256 was to make further and better provision for the
regulating of the importation, exportation, manufacture, sale, use of opium and of
certain other dangerous drugs and substance, to make special provision relating
to the jurisdiction of courts in respect of offences thereunder and their trial, and
for purpose connected therewith.

38. Also, the Legislature intended the scheme of the DDA 1952 to differentiate
between traffickers and mere addicts while providing penalties for possession and
trafficking of drugs.57

39. Furthermore, in Ong Lock Soon v PP58, the COA held that the SCND recognized
the medical use of narcotic drugs shall continue to be indispensable for the relief
of pain and suffering and that adequate provision must be made to ensure the
availability of narcotic drugs for such purposes.

40. Besides, the MOH59 also stated that the usage of medical cannabis does not
contravene the laws on cannabis including the CDCR 198460, the Poison Act
195261 and the DDA 1952.62

41. In the current case, the purpose of DDA 1952 is silent on the medicinal aspects of
Delta-9 even though the SCND obliges the availability of narcotic drugs for
medicinal purpose.63 Besides, the medicinal Delta-9 did not contravene other laws
governing the medicinal drugs. It is unreasonable to include medicinal Delta-9
within the meaning of the dangerous drugs while disregarding its medicinal value
as it is not the purpose of the DDA 1952.

56
Dangerous Drugs Act 1952 [Act 234] Long Title.
57
Muhammad Lukman bin Mohamad v Public Prosecutor [2021] 4 MLJ 508 (FC) 508 [24].
58
[2012] 2 MLJ 641 (COA) 659 [32].
59
R. Loheswar, “Khairy: Medical Marijuana Can be Used in Malaysia if It Passes National Regulation’
Malay Mail (Kuala Lumpur, 9 November 2021)
https://www.malaymail.com/news/malaysia/2021/11/09/khairy-medical-marijuana-can-be-used-in-
malaysia-if-it-passes-national-regu/2019592 accessed 18 November 2021.
60
[P.U(A) 223/84] Regulation 2.
61
[Act 366] Section 2.
62
[Act 234] Section 2.
63
Ong Lock Soon v Public Prosecutor [2012] 2 MLJ 641 (COA) 659 [32].

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42. The medicinal Delta-9 shall not be included within the meaning of dangerous
drugs. Therefore, it cannot be caught within the ambit of the DDA 1952.

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PRAYERS FOR RELIEF

Considering the submission made above, the Appellant respectfully request this
Honourable Court to declare and adjudge that: -

1. The Appellant should be acquitted from the charge under Section 39B(1)(a) of the
DDA 1952. The Prosecution had failed to prove the net weight of the drugs which
is incumbent to the sentencing process;

2. Apparently, the differences in the weight of the drugs and lack of exclusive
possession create a doubt as to whether the accused had committed the offence;

3. The Delta-9 should be considered as medicinal cannabis as it had fulfilled the

definition of medicinal purposes under the SDA 1952 and had been practised in
the Commonwealth countries; and

4. The medicinal cannabis is not to be included as dangerous drugs and should not
be caught within the ambit of the DDA 1952.

Respectfully submitted;
Counsels for the Appellant

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IN THE MOOT COURT

FACULTY OF SYARIAH AND LAW
LAD 4223

MEMORIAL SCORE SHEET

Judge’s Name : YAA TUN DR. FAREED MOHD HASSAN (CHIEF JUSTICE)

Team Number : 3106

Memorial for : APPELLANT / RESPONDENT

Name : NUR HASYA AIMAN BINTI AMIR ID: 1181849

Name : NUSHAIBAH BINTI BADRUDDIN ID: 1181847
Instructions: For each criterion, a score must be given within the range indicated. When
finished, add the scores in the right-handed column to determine the total score.

No. Criteria Range Score

1 Knowledge of facts and laws 10-20
2 Proper and articulate analysis 10-20
3 Extent and use of research 10-20
4 Clarification and organisation 10-20
5 Citation of sources 5-10
6 Grammar and style 5-10

TOTAL SCORE 50% - 100%

Signature and Seal:

………………………………………………..
YAA TUN DR. FAREED MOHD HASSAN _____/ _____/ 2021/2022

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