Many Malaysians may believe that consuming illegal substances in foreign countries with lenient laws means there would be no consequences upon returning to their home country.
And while that might be technically true, there are still ways that the Malaysian authorities can charge you for drug consumption despite the offence not taking place on home soil.
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You can’t be charged in Malaysia for consuming illegal substances abroad, but…
Speaking to WORLD OF BUZZ, Qurtubi Kamruldzaman, a Legal Associate at Kuala Lumpur-based law firm ADIL Legal, explained that a Malaysian court doesn’t have the power to oversee criminal cases such as consuming an illegal substance under the Dangerous Drugs Act 1952 (Act 234) while the individual is overseas.
This is because the matter falls outside the jurisdiction of Malaysian courts. While there are extra-territorial offences that Malaysian courts have jurisdiction over, such as cases relating to terrorism, drug use under Act 234 is not one of them.
However, things are not as straightforward as they seem.
“Despite the courts not having jurisdiction to hear the case, 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,” Qurtubi elaborated.
What happens if your urine test is positive for illegal substances?
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He asserted that if a urine test is found to be positive for illegal substances, you can be charged under Section 15 of Act 234 below, where it is presumed that you have committed the act of consuming illegal substances until proven otherwise.
“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,” he said.
Moreover, the defence of it being committed while overseas can only be made after being charged under Section 15 of Act 234 and is not an easy task.
“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 the possibility of remand. Even then, it’s basically up to the court to decide,” Qurtubi clarified.
Can the authorities make you take a urine test?
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Yes, they can. The police or customs officer has the power to arrest, without a warrant, anyone whom they reasonably believe to have committed an offence under Act 234, as per Section 31 of the Act.
“The key words here are ‘reasonably believe’, as under Section 31, an individual can be arrested and investigated if there is a 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,” Qurtubi explained.
The same also applies to those detained under another relevant legislation, the Drug Dependants (Treatment and Rehabilitation) Act 1983 (Act 283).
Specifically, Section 3 of Act 283 below allows for an officer, be it one appointed under section 5 of the National Anti-Drugs Agency Act 2004 or any police officer, to take into custody any person they “reasonably suspect to be a drug or substance dependant or drug substance misuser” for a period not exceeding 24 hours for the purpose of undergoing tests.
Act 293 defines drug or substance dependants and drug or substance misusers as below:
- Drug or substance dependant: A person who, through the use of any dangerous drug or substance, indicates the characteristics of dependency on the dangerous drug or substance that affects self-control, which is verified by tests
- Drug or substance misuser: A person who consumes dangerous drug or substance into the body for non-medical purposes or without a lawful prescription by a government medical officer or registered medical practitioner, which is verified by tests
Furthermore, Section 5 of Act 293 below obliges suspects to undergo test procedures as directed by an officer.
Those who failed the urine test can be considered ‘drug or substance misusers’ or ‘drug or substance dependants’ and face action
As the Malaysian authorities can’t charge someone with consuming illegal substances while abroad, what usually happens is that those who test positive for illegal substances upon return to Malaysia would be treated as a drug or substance misuser or drug or substance dependant.
This can be seen by National Anti-Drug Agency (AADK) enforcement officers conducting urine tests on individuals at the Thai-Malaysia border, as seen in this instance, and taking those who tested positive into custody.
Qurtubi elaborated that under Section 6 of Act 283 below, those found to be drug or substance dependant can be ordered by a Magistrate to undergo treatment and rehabilitation for 2 years.
Meanwhile, those found to be drug or substance misusers, after giving the individual an opportunity to make representations, can be ordered by a Magistrate to undergo treatment and rehabilitation in a community under the supervision of a Rehabilitation Officer for a period not exceeding 2 years, or at a Rehabilitation Centre for a period of up to 6 months.
What do you think about this? Feel free to share your thoughts in the comment section.
Also read: Penang SPM Student Takes Drugs in Thailand Due to “Stress”, Gets Arrested Upon Return to Malaysia
