The legalization of cannabis is happening around the world. But cannabis is not legal in Malaysia. A recent judgment from the High Court of Alor Setar, Kedah, affirmed the life conviction of a cannabis grower. (Criminal Appeal no. KA-42H-1-01/2022)
Facts of the cannabis case
Here are the facts. Muhamad Faisol bin Nor @ Nordin, a 41 year old, was convicted by the Sessions Court on his plea of guilt. He had been charged under section 6B(1)(a) of the Dangerous Drugs Act with planting four (4) cannabis plants, which weighed about 1853.9 grammes.
At the Sessions Court, Faisol, the accused, had not been represented. At first, he pleaded innocence, but somehow, this changed to a plea of guilt. The Sessions Court convicted him to 30 years in prison – a life sentence. He was also sentenced to 6 strokes of the cane.
Faisol, now convicted, decided to appeal to the High Court at Alor Setar.
His counsel asked for the court’s intervention, but the High Court was mindful of disturbing the sentence of the lower court, unless some serious misdirection could be proven.
The cannabis grower’s plea of guilt
One of the important factors that the court looked into was the plea of guilt. Did Faisol, the accused, plead guilty in a way that could be rejected?
The court found that Faisol was not represented in the lower court; and even at the point of making the appeal, he was also not represented.
When it came up for consideration for the High Court, Faisol would be represented, but the court was concerned that he was not advised at the lower court.
And so, the court decided to look at the CRT – the court recording transcript – which is another way of describing the video recordings. And after watching Faisol’s plea of guilt, they found that he had been well advised and he knew the consequences of his plea of guilt.
Faisol had pleaded guilty, without reservation, despite knowing the consequences of his plea.
And the fact that he wanted to change his plea from innocent to guilty – without any counsel to advise him – sealed the deal for the court. Faisol was seen to have willingly admitted to his guilt in the matter.
And that’s how he was convicted for 30 years in prison, for growing 4 cannabis plants.
The future of cannabis from a legal perspective
I am hopeful that the day will come when scientific advancements make it possible to derive certain drugs, to treat patients.
After all, if a product qualifies as a medicine, it can be prescribed, and dispensed.
We probably do not need recreational cannabis in Malaysia, but we could do with medicinal cannabis.
Some of its purported benefits include the shrinking of cancer tumours – quite an important use case, given the large number of people that become cancer patients.
If it can be regulated, then there might be a future for future cannabis growers in this country.
Even if regulation is super tight, and confines growing of cannabis to certain geographical areas, or processing and dispensing to certain hospitals, it at least creates an industry.
A small cannabis industry would be better than none at all.
After all, Thailand, our nearest neighbour in the North, has already taken the bold step of allowing medicinal uses of cannabis.
Countries such as Canada have also legalized it.
Some states in the USA allow medicinal uses of cannabis while disallowing recreational uses of it.
And then there are some other states in the USA which allow recreational uses of cannabis.
But still, we are a Muslim nation, and a famous Hadith says that all intoxicants are haram – even a single drop would make the whole bucket haram.
But if there is a need to use cannabis for certain medical reasons, it could also be allowed.
After all, there is an Islamic legal maxim which says that, necessity would render what is not permissible to become permissible.
And so it seems that the final arbiter of this question would be the Health Ministry of this country – whether they would allow certain cannabis-derived medical products to be used, or not.
If the answer is no, then, it’s likely that there will not be a future for cannabis in this country.
If the answer is yes, then, its growing and cultivation might become permissible, but tightly regulated.
And that is still a good outcome to hope for.
The effect of the plea of guilt
Perhaps more than anything, this case illustrates the point that an accused person in a criminal court, should not – must not – simply plead guilty to a charge.
The accused must know what the charge entails, and unless he accepts the meaning of it, and the punishment which will be given, he should not plead guilty.
In this case, the accused pleaded guilty at the lower court – and was given 30 years in prison, without the benefit of a lawyer’s representation.
At the high court, the accused’s plea of guilt was examined – and he was found to have pleaded guilty with full knowledge of its consequence.
So, there was no challenge on the facts, brought by the prosecution.
A plea of guilt will be swiftly followed by conviction, because the court deems that the crime has been proven.
Normally, the accused would expect a bit of a “discount” on the sentence when he pleads guilty, but as this case shows, a cooperative plea of guilt, which simplifies the prosecution’s burden of proof, can be rewarded with a life sentence.
That’s 30 years of free food and free stay, paid for by taxpayers – but I doubt that he would have wanted to plead guilty if he knew what he was in for.
The plea of guilt applies to other types of criminal cases – even CBT cases and juvenile cases.
Thank you for reading this article. It was prepared to provide general information. Please do not treat it as legal advice. Please consult with a trained legal professional before making any decision regarding the topic of cannabis, or anything else mentioned in this article.