Al Bakhtiar bin Ab Samat v Public Prosecutor
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Al Bakhtiar bin Ab Samat v Public Prosecutor [2012] 4 MLJ 713 Evidence -- Similar fact evidence -- Admission of -- First charge was for possession of 30.40g of cannabis and second charge for trafficking dangerous drugs -- Whether any similarity in respect of both charges -Whether trial judge misdirected himself when acted on evidence of first charge to prove knowledge of trafficking charge -- Principles relating to similar fact evidence -- Evidence Act 1950 ss 14 & 15
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![Al Bakhtiar Ab. Samat v PP [2013] 7 CLJ 458.
The appellant appealed against the judgment of the trail court where the trial judge
convicted the appellant and sentenced to death for the offence of trafficking in 993.8
grammes of cannabis. At the same trial, the appellant was also charged for
possession of 30.40g of cannabis under s 6 of the Dangerous Drugs Act 1952 and
punishable under s 39A(1) of the same Act and he was found guilty and sentenced
to three years imprisonment and three strokes of rotan.
During the body search the police seized 5 plastic packets of cannabis from his
jeans pocket. This formed the subject matter of the charge under section 6 of the
Dangerous Drugs 26 Act 1952 for possession of 30.40 grammes of cannabis against
the appellant.
The prosecutor contended that the appellant retrieved a package containing the
cannabis during the house search and handed it over to an officer. This was the
subject matter of the trafficking charge of 993.8 grammes of cannabis.
The appellant challenged and claimed that he never had handed the cannabis to the
police and he had no knowledge of the said drugs. However, the officers found the
drugs by themselves in the room. The room was accessible to at least two or three
other persons. The drugs could have been placed there by these other persons or
could have belonged to his uncle, Kamil, a confirmed drug addict.
The trial court held that the fact that the appellant was arrested in respect of the
30.40 grammes cannabis found on him earlier attracted the application of section 15
of the Evidence Act, whereby, it imputed the appellant’s knowledge of the drugs.
One of the two issues raised by the appellant before the Court of Appeal was that
the trial judge misdirected himself when the learned trial judge acted on the evidence
of the first charge for possession of 30.40 grammes of cannabis as similar fact
evidence to prove knowledge in respect of the trafficking charge.
On the issue of similar fact evidence - whether there is similarity between the offence
of possession of 30.40 grammes of cannabis for which the appellant was arrested
earlier and charged and the present charge of trafficking in 993.8 grammes of the
same drug and whether similarity of the offences is a prerequisite.](https://image.slidesharecdn.com/albakhtiarab-151219173317/85/Al-Bakhtiar-bin-Ab-Samat-v-Public-Prosecutor-1-320.jpg)
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Presumed resulting trusts arise when the facts are unknown regarding the ownership of property. There are three types of presumed resulting trusts: 1) voluntary conveyances to strangers, where property transferred without consideration results in a trust for the transferor, 2) presumption in favor of the purchaser, where property purchased in another's name results in a trust for the purchaser, and 3) presumption of advancement, where a voluntary conveyance to a spouse or child results in the property belonging to the spouse or child absolutely unless rebutted. The presumptions can be rebutted by evidence showing a different intention for the ownership of the property.
Res gestae
The document discusses the legal concept of res gestae, or things done, which is an exception to the rule against hearsay evidence. Under res gestae, spontaneous statements made during or immediately after an event may be admissible in court. The document outlines several conditions and case law examples related to determining what statements can be considered part of res gestae, including the need for contemporaneity, spontaneity, and connection to the facts in issue. It also compares the common law approach to res gestae versus the definition under Malaysian law.
Application of the doctrine of cy-pres
The cy-près doctrine allows charitable trusts whose purposes have become impossible or impractical to fulfill their original goals to have their funds reapplied to similar charitable purposes. In Malaysia, courts refer to case law when addressing cy-près issues due to a lack of statutory provisions. For cy-près to apply, the settlor's intention must have been for general charity rather than a specific purpose. Initial failures occur before a gift takes effect if the intended charity no longer exists, while subsequent failures happen after a gift has already vested in a charity that then ceases to exist.
Breach of trust (short notes)
This document discusses breach of trust and defenses for trustees. It defines breach of trust as failing to comply with duties outlined in the trust instrument or by equity. Trustees can be personally liable to beneficiaries for losses caused by their breaches. However, trustees have several defenses that may allow them to avoid personal liability, including: consent of beneficiaries, approval of beneficiaries after the breach, expiration of the limitation period, statutory relief if the trustee acted honestly and reasonably, advice of a solicitor, breach by a single trustee alone, and exemption clauses in the trust document. The document analyzes these defenses in detail using case examples.
Law of evidence1
This document discusses the law of evidence in Malaysia. It defines evidence as oral statements and documentary evidence presented in court. Evidence may consist of facts in issue and relevant facts according to Section 5 of the Evidence Act 1950. Facts in issue are identifiable from pleadings in civil cases and include everything in criminal cases where a not guilty plea is entered. Relevant facts are connected to facts in issue under the Act. Only facts that are logically and legally admissible under the Act may be introduced as evidence.
Non-charitable purpose trust (short notes)
This document discusses non-charitable purpose trusts (NCPTs), which are trusts that do not directly benefit individuals. It outlines several objections to the validity of NCPTs, including lack of enforceability since there is no human beneficiary, uncertainty of purposes, excessive delegation of powers, and violation of the rule against perpetuities. However, NCPTs have been upheld in some exceptional cases where the purpose is narrow, such as maintenance of a specific animal, building/maintaining a particular tomb/monument, or fox hunting. Unincorporated associations present another exception if the gift is made for the members of the association.
Secret trust (short notes)
The document discusses secret and half secret trusts. A secret trust occurs when a testator leaves property to someone in their will who has privately agreed to hold the property in trust for a third party beneficiary. The identity of the beneficiary is kept secret. A half secret trust is similar but the existence of the trust is disclosed in the will, though not its terms or beneficiaries. For a secret or half secret trust to be valid there must be intention, communication of the trust terms to the trustee before death, and acceptance by the trustee. English law requires communication for half secret trusts to occur before the will's execution. The basis for enforcing such trusts is to prevent fraud.
Remedies for breach of trust
1. Remedies for breach of trust by a trustee include personal remedies against the trustee and proprietary remedies available to beneficiaries. Personal remedies hold trustees liable for losses caused by unauthorized actions, require them to return unauthorized profits, and pay compensation including interest.
2. Proprietary remedies allow beneficiaries to claim specific trust property as their own if it can be identified, even if the trustee is insolvent. This includes tracing trust property that has been sold and used to purchase other assets, which beneficiaries can claim or use as security.
3. If trust funds have been mixed with other money in investments or bank accounts, beneficiaries have priority claims to recover the original trust funds from the mixed assets or their proceeds based on legal pres
Law of Trust,Three certainties (Exam short notes)
This document discusses the three certainties required to create an express private trust: (1) certainty of intention, (2) certainty of subject matter, and (3) certainty of objects. It provides examples from case law rulings that help define these certainties. No particular words are needed to create a trust as long as the intention is clear from examining the trust document as a whole. The subject matter and objects must also be clear and ascertainable for the trust to be valid. Discretionary trusts provide flexibility by allowing trustees discretion over distributions.
Resulting trust (short notes)
This document discusses resulting trusts, which arise in the absence of express trusts when the beneficial interest returns to the settlor. There are two types of resulting trusts: automatic resulting trusts, which arise whenever the beneficial interest has not been fully disposed of by an express trust; and presumed resulting trusts. Automatic resulting trusts occur in situations like when an express trust fails due to lack of formalities, an incomplete disposal of the beneficial interest, or other reasons. Surplus funds from unincorporated associations may also result in a resulting trust, with courts determining on a case-by-case basis whether the surplus reverts back to contributors under a resulting trust or is distributed contractually.
Charitable trust (short notes)
This document summarizes the law on charitable trusts in the UK. It discusses the four principal categories of charitable purposes as defined by Lord MacNaughten: 1) relief of poverty, 2) advancement of education, 3) advancement of religion, and 4) other purposes beneficial to the community. It provides detailed explanations and case examples for each category. For relief of poverty, it discusses what constitutes poverty, public benefit requirements, and cases related to aged, impotent, poor persons. For advancement of education, it examines what activities fall under education like research, art, extracurricular activities, and public benefit. For advancement of religion, it analyzes definitions of religion, requirements for public benefit, and cases related to various religions
Hearsay evidence. 2
This document discusses hearsay evidence under the topic of law of evidence. It begins by defining hearsay evidence as a statement made out of court that is offered in court to prove the truth of what was stated. Direct evidence is testimony based on a witness's own knowledge or observation, whereas hearsay is indirect evidence of a statement made by someone other than the witness. The document goes on to provide examples of hearsay in oral, written, and non-verbal forms, and discusses exceptions to the hearsay rule. It also outlines rationales for excluding hearsay, such as it not being given under oath or subject to cross-examination.
Feminist jurisprudence
Feminist jurisprudence is a philosophy of law based on gender equality. It began in the 1960s and believes that law systematically maintains patriarchy by privileging male perspectives. There are several schools of feminist thought, including liberal feminism which seeks equal treatment, difference feminism which emphasizes women's differences, radical feminism which views patriarchy as the root of gender inequality, and postmodern feminism which rejects universal standards.
Power and duties of trustees.
Trustees have both powers and duties. Their powers include selling trust property, insuring assets, compounding liabilities, maintaining and advancing funds to beneficiaries. Their key duties are to protect trust assets, treat beneficiaries equally, provide beneficiaries with account information, and properly distribute trust funds. Trustees must exercise their powers and duties with care, skill, prudence and in the sole interest of beneficiaries.
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Cy-pres (short notes)
The cy-près doctrine allows charitable funds to be applied to similar purposes as the original intent if the specified purpose becomes impossible, impractical, or illegal to fulfill. When applying cy-près, courts will consider whether the settlor intended a general charitable purpose or a specific purpose. If the intent was specific and the purpose cannot be fulfilled, the gift fails completely. Cy-près may apply in cases of initial failure, where the purpose failed before the gift was made, or subsequent failure, where the purpose failed after the gift was made, to redirect the funds to similar charitable goals.
Constructive trust (short notes)
This document summarizes the key concepts and principles related to constructive trusts under Malaysian law. It discusses the different types of constructive trusts, the differences between constructive trustees and ordinary trustees, and important cases that have helped shape the law on constructive trusts. The summary provides the essential information in 3 sentences:
Constructive trusts are implied trusts that equity recognizes to prevent unfairness, where a person obtains property through wrongful means or in circumstances that would make it unjust for them to keep the property. The document outlines the different situations that can give rise to a constructive trust, such as fraud, breach of fiduciary duty, and acquisition of property through killing. It also discusses the flexible "new model" of constructive trust introduced by Lord
Law of Trust, Constitution of trust (short notes)
1. A completely constituted trust (CCT) exists when the settlor has fully transferred property to the trustee. This makes the trust binding and prevents the settlor from changing their mind. An incompletely constituted trust (ICT) exists when property is not fully transferred to the trustee, so it only operates as a contract that may be enforced by beneficiaries who provided consideration but not volunteers.
2. Equity may assist volunteers to enforce an ICT under certain exceptions, such as if the settlor appointed the volunteer as executor (rule in Strong v Bird), if it was a deathbed gift (donatio mortis causa), or if the volunteer relied on the settlor's representations about the gift (proprietary estoppel
Charitable trust short note 1
This document summarizes the legal definition and scope of charity in England based on a seminal case. It discusses the four principal categories of charitable trusts: (1) relief of poverty, (2) advancement of education, (3) advancement of religion, and (4) other purposes beneficial to the community. It provides detailed explanations and case examples for each category. For example, it describes what constitutes relief of poverty, how education is broadly defined, how religious trusts must promote monotheistic beliefs, and examples of trusts that fall under "other purposes beneficial to the community."
Charitable trust ii
This document discusses the law around charitable trusts established for the relief of poverty and advancement of education. It provides numerous cases as examples and outlines the key principles, such as that poverty does not require destitution, education is not limited to classroom teaching but includes research and the arts, and trusts cannot have political purposes but can discuss political issues if their primary aim is educational. Overall, the document analyzes the legal definitions and precedents around charitable purposes related to poverty relief and education.
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Al Bakhtiar bin Ab Samat v Public Prosecutor
- 1. Al Bakhtiar Ab. Samat v PP [2013] 7 CLJ 458. The appellant appealed against the judgment of the trail court where the trial judge convicted the appellant and sentenced to death for the offence of trafficking in 993.8 grammes of cannabis. At the same trial, the appellant was also charged for possession of 30.40g of cannabis under s 6 of the Dangerous Drugs Act 1952 and punishable under s 39A(1) of the same Act and he was found guilty and sentenced to three years imprisonment and three strokes of rotan. During the body search the police seized 5 plastic packets of cannabis from his jeans pocket. This formed the subject matter of the charge under section 6 of the Dangerous Drugs 26 Act 1952 for possession of 30.40 grammes of cannabis against the appellant. The prosecutor contended that the appellant retrieved a package containing the cannabis during the house search and handed it over to an officer. This was the subject matter of the trafficking charge of 993.8 grammes of cannabis. The appellant challenged and claimed that he never had handed the cannabis to the police and he had no knowledge of the said drugs. However, the officers found the drugs by themselves in the room. The room was accessible to at least two or three other persons. The drugs could have been placed there by these other persons or could have belonged to his uncle, Kamil, a confirmed drug addict. The trial court held that the fact that the appellant was arrested in respect of the 30.40 grammes cannabis found on him earlier attracted the application of section 15 of the Evidence Act, whereby, it imputed the appellant’s knowledge of the drugs. One of the two issues raised by the appellant before the Court of Appeal was that the trial judge misdirected himself when the learned trial judge acted on the evidence of the first charge for possession of 30.40 grammes of cannabis as similar fact evidence to prove knowledge in respect of the trafficking charge. On the issue of similar fact evidence - whether there is similarity between the offence of possession of 30.40 grammes of cannabis for which the appellant was arrested earlier and charged and the present charge of trafficking in 993.8 grammes of the same drug and whether similarity of the offences is a prerequisite.
- 2. The court of Appeal inter alia stated that before acting on the similar fact evidence the trial judge must undertake a weighing exercise and ask whether the prejudicial effect of that similar fact evidence would be outweighed by its probative value. Further, it was held that the authorities are clear that the similarity test is not a prerequisite for the admission of similar fact evidence. As the case was riddled with a number of unsatisfactory features, the conviction recorded against the appellant was unsafe. The appeal was allowed and the conviction and sentence of the trafficking charge was set aside. The appellant was acquitted and discharged.