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The Malayan Law Journal
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HAIRUL DIN BIN ZAINAL ABIDIN v PUBLIC PROSECUTOR
[2004] 1 MLJ 539
CRIMINAL APPEAL NO W–05–8 OF 2001
COURT OF APPEAL (KUALA LUMPUR)
DECIDED-DATE-1: 23 SEPTEMBER 2003
MOKHTAR SIDIN, MOHD SAARI AND ABDUL AZIZ MOHAMAD JJCA
CATCHWORDS:
Criminal Law - Dangerous Drugs Act (Malaysia) - ss 6, 39A(2) - Drug possession -
Difference in weight of drugs satisfactorily explained - Difference due to higher gross
weight found by police and lower nett weight found by chemist - Lower nett weight
stated in charge against accused - Whether difference a material discrepancy -
Whether benefit of doubt given to accused
HEADNOTES:
The appellant was convicted by the High Court on an amended charge of drug
possession under s 6 of the Dangerous Drugs Act 1952 (‘the Act’) punishable under s
39A(2) thereof. He was sentenced to ten years’ imprisonment and ten strokes of the
rotan. He appealed against both conviction and sentence. On appeal counsel for the
appellant argued that: (i) the appellant should be punished under s 6 rather than
under s 39A(2) since the actual weight of the drugs was not established; (ii) there
was a material gap in relation to the weight of the drugs found in the possession of
the appellant. The weight of the drugs as weighed by the police was 26g more than as
weighed by the chemist. The charge against the appellant stated the weight of the
drugs to be 953.2g — the weight established by the chemist.
Held, dismissing the appeal and affirming the conviction and sentence:
(1) The trial judge knew of the difference in weight and had explained the
difference in his judgment. The drugs weighed by the police was weighed
with masking tape wrapped around the drugs whereas the drugs weighed by
the chemist was weighed without the masking tape. The 26g difference
was due to the weight of the masking tape. In fact, the appellant was
given the benefit of the doubt when the weight stated in the charge was
the lesser weight (see paras 10–11).
(2) Even with the lesser weight, the amount of drugs in the appellant’s
possession far exceeded the prescribed amount under s 39A(1)(f) of the
Act which is 50g. There was therefore no merit in counsel’s submission
and the trial judge was right in sentencing the appellant under s
39A(2) of the Act (see para 11).
(3) The trial judge correctly applied the principles of sentencing in
sentencing the appellant. No new issue was raised in mitigation on
appeal. Thus, there was no ground for the Court of Appeal to disturb
the sentence imposed by the trial judge (see para 13).
[Bahasa Malaysia summary

Perayu telah disabitkan oleh Mahkamah Tinggi atas pertuduhan pindaan memiliki
dadah di bawah s 6 Akta Dadah Berbahaya 1952 (‘Akta tersebut’) [*540] yang boleh
dihukum di bawah s 39A(2). Beliau dijatuhkan hukuman penjaran sepuluh tahun dan
sepulun sebatan rotan. Beliau merayu terhadap kedua-dua sabitan dan hukuman.
Semasa rayuan, peguam bagi pihak perayu telah berhujah: (i) perayu sepatutnya
dihukum di bawah s 6 dan bukan di bawah s 39A(2) memandangkan berat sebenar
dadah tersebut tidak dibuktikan; (ii) terdapat jurang yang material berkaitan berat
dadah yang ditemui berada dalam milikan perayu. Berat dadah yang ditimbang oleh
polis adalah lebih 26g daripada yang ditimbang oleh ahli kimia. Pertuduhan terhadap
perayu menyatakan berat dadah sebagai 953.2g — berat yang dibuktikan oleh ahli
kimia.
Diputuskan, menolak rayuan dan mengesahkan sabitan dan hukuman:

(1) Hakim perbicaraan mengetahui perbezaan berat tersebut dan telah
menjelaskan perbezaan tersebut dalam penghakiman beliau. Dadah yang
ditimbang oleh polis telah ditimbang dengan pita penutup yang melilit
dadah tersebut manakala dadah yang ditimbang oleh ahli kimia tidak
ditimbang dengan pita penutup. Perbezaan 26g tersebut disebabkan oleh
pita penutup tersebut. Bahkan, perayu tidak berasa sangsi apabila berat
dalam pertuduhan tersebut adalah lebih kurang (lihat
perenggan-perenggan 10–11).
(2) Walaupun dengan berat yang lebih kurang, jumlah dadah dalam milikan
perayu masih melebihi jumlah yang ditetapkan di bawah s 39A(1)(f) Akta
tersebut iaitu 50g. Oleh itu tiada merit dalam hujah peguam dan
sememangnya hakim perbicaraan betul dalam menjatuhkan hukuman perayu di
bawah s 39A(2) Akta tersebut (lihat perenggan 11).
(3) Hakim perbicaraan telah dengan betul menggunakan prinsip-prinsip
penghukuman dalam menjatuhkan hukuman ke atas perayu. Tiada persoalan
baru yang ditimbulkan dalam mitigasi semasa rayuan. Oleh itu, tiada
alasan untuk Mahkamah Rayuan campur tangan dalam hukuman yang dikenakan
oleh hakim perbicaraan tersebut (lihat perenggan 13).]
Notes
For case on the Dangerous Drugs Act 1952 ss 6, 39A(2), see 4 Mallal’s Digest (4 th
Ed, 2003 Reissue) para 147.
Legislation referred to
Dangerous Drugs Act 1952 ss 6, 39A(1)(f), (2), 39B
Appeal from
Criminal Trial No 45–46 of 2000 (High Court, Kuala Lumpur)
Gobind Singh Deo (Karpal Singh & Co) for the appellant.
Shahrizal bin Shaari (Deputy Public Prosecutor, Attorney General’s Chambers) for
the respondent. [*541]
Mokhtar Sidin JCA:
[1] (delivering judgment of the court):
[2] 1 The appellant in this appeal appealed against the sentence imposed by the
High Court for an offence under s 6 of the Dangerous Drugs Act 1952 (‘the Act’) and
punishable under s 39A(2) of the Act. The appellant was originally charged in the High
Court under s 39B of the Act but at the close of the case for the prosecution the
learned trial judge amended the charge to one under s 6 of the Act. The appellant was
sentenced to ten years imprisonment from the date of his arrest and also ten strokes
of the rotan after he elected to remain silent when the amended charge was read to
him.
[3] 2 The facts as stated by the learned judge were, on 16 June 2000, Chief
Inspector Yap Huat Tian led a police party to a flat number Block 4, Desa Tun Razak,
Sungei Besi, Kuala Lumpur. At about 11.15pm, Chief Inspector Yap Huat Tian who
was at a higher floor of the flat saw the appellant walking towards the lift. Chief
Inspector Yap Huat Tian then instructed Lance Corporal Lim Hee Jiang and Corporal
Romli to arrest the appellant. Chief Inspector Yap Huat Tian then came down to the
ground floor. When he reached the ground floor he saw that the appellant had already
been arrested by Lance Corporal Lim Hee Jiang and Corporal Romli. Lance Corporal
Lim Hee Jiang gave evidence that when he and Corporal Romli identified themselves
as police officers the appellant attempted to run away.
[4] 3 When Lance Corporal Lim arrested the appellant, he took possession of a white
plastic bag with the word ‘Starmart’ which the appellant was holding. Lance Corporal
Lim then handed over the plastic bag to Chief Inspector Yap. Chief Inspector Yap
opened the plastic bag in front of the appellant and inside it, Chief Inspector Yap
found a packet wrapped in old newspapers.
[5] 4 In the packet, Chief Inspector Yap found some plant materials wrapped with
masking tape which he suspected to be cannabis. After analysis, the chemist
confirmed the plant materials to be cannabis weighing 953,2g. At the close of the case
for the prosecution, the learned counsel for the appellant submitted that the
prosecution failed to make out a prima facie case against the appellant based on two
grounds:
(i) the prosecution failed to prove the weight of the dangerous drugs; and
(ii) in a case of trafficking, as in this case, knowledge of possession of

the dangerous drugs must be proved by direct evidence.
[6] 5 The learned judge found that there was no merit on the first ground submitted
by the appellant’s counsel but upheld the second ground raised by. the appellant's
counsel in that the prosecution failed to prove by way of direct evidence that the
appellant had knowledge that in his possession, was the drug ‘cannabis’. Even though
there was evidence to show that the appellant attempted to run at the time of his
arrest, that was not sufficient to show that he had knowledge of the drug.
[7] 6 In his judgment, the learned judge stated that the evidence by the prosecution
proved that the appellant had only possession of the cannabis [*542] to which the
appellant's counsel conceded. The learned judge then proceeded to amend the charge
against the appellant to one under s 6 of the Act punishable under s 39A(2) of the
Act. When the amended charge was read to the appellant he claimed trial to the
amended charge. After the three alternatives were read and explained to him, the
appellant elected to remain silent. The learned judge then found the appellant guilty
of the amended charge and convicted the appellant.
[8] 7 In mitigation, the appellant’s counsel submitted that the appellant was 27
years of age at the time of the trial and unmarried. The learned deputy public
prosecutor stated that the appellant had no previous convictions but pressed for a
deterrent sentence in view that the amount of cannabis found to be in the possession
of the appellant was 26 times more than the permissible limit.
[9] 8 The learned judge then sentenced the appellant to ten years imprisonment
and ten strokes of the rotan.
[10] 9 Being dissatisfied with that decision the appellant appealed to this court
against his conviction and sentence. Before us, the learned counsel for the appellant
submitted that the amended charge against the appellant was under s 6 of the Act,
and as such he should be punished under the same s and not under s 39A(2) of the
Act. The punishment under s 6 of the Act is a fine not exceeding RM20,000 or an
imprisonment not exceeding five years or both. The appellant’s counsel submitted that
the weight of cannabis found by the chemist was different from the weight found by
the police. As such, there was a material gap as to the weight of cannabis found to be
in the possession of the appellant. The appellant’s counsel submitted further that the
onus of proof was on the prosecution to prove the actual weight of cannabis found to
be in the appellant’s possession. Failure by the prosecution to do so would warrant the
benefit of doubt be given to the appellant. Since the actual weight of cannabis was not
proved the punishment to be imposed on the appellant should be under s 6 and not
under s 39A(2) of the Act. In this respect, the learned trial judge in his judgment
stated:
With regard to the first objection raised by learned counsel it was his
contention that the weight of the dangerous drugs as found by PW2 was
different from that stated in the chemist report. He said that this
means the evidence advanced by the prosecution in relation to the
weight of the dangerous drugs is contradictory and unsatisfactory and
as such ought to be rejected. This submission is answered by the
evidence of PW2 who having said that there was a difference in the
weight of the dangerous drugs as weighed by him and as stated in
Exhibit PI6 said in re-examination that he weighed the dangerous drugs
together with the masking tape. It must, however, be observed that the
weight referred to in exh P16 is the ‘berat bersih’. That explains the
difference in the weight of the dangerous drugs as weighed by PW2 and
the chemist. Surely, the nett weight of the dangerous drugs must be
different compared to its weight when weighed with the masking tape. It
follows that the difference in weight must be due to the weighing of
the exhibit by PW2 together with the masking tape. In any event, the
evidence of PW2 clearly establishes that the whole of the dangerous
drugs that he received was sent to the chemist for analysis. He was not
cross-examined in any way on this issue. What therefore PW2 and the
chemist weighed was the whole of the dangerous drugs seized …
[*543]
[11] 10 It is clear from the above passage that the learned trial judge knew of the
difference in weight and he explained why there was a difference in weight in that the
weight taken by PW2 included the masking tape while the weight given by the chemist
was the weight of the cannabis alone without the masking tape. As can be seen, the
difference in weight was 26g which would be the weight of the masking tape. I see no
fault in the explanation given by the learned judge and I could not find any reason not
to accept the explanation given by him.
[12] 11 The weight of cannabis stated in the charge was 953.2g which was the nett
weight of cannabis as found by the chemist. The weight as found by PW2 would be
26g more than the 953.2g as stated in the charge. In my view, the appellant was
given the benefit of the doubt when the weight stated in the charge was the lesser
weight. Even with this lesser weight the cannabis found to be in the possession of the
appellant far exceeded the prescribed weight of cannabis under s 39A(l)(f) which is
50g. I see no merit in the submission of the appellant's counsel. The learned judge
was right in amending the charge where the punishment should be under s 39A(2) of
the Act.
[13] 12 In respect of the appeal by the appellant against the sentence imposed by
the court, I would only have to refer to the judgment of the learned trial judge where
he stated:
In his plea in mitigation, learned counsel merely said that the accused
is aged 27 and is unmarried. The learned Deputy Public Prosecutor
informed the Court that the accused had no previous convictions and
prayed for an appropriate sentence as the weight of drugs involved in
this case is about 20 times more than the prescribed limit. It is
settled law that any sentence to be passed must be a balance between
the public interest to be served and the interests of the person to be
sentenced. The manner in which public interest is affected by drug
abuse has been appropriately dealt with in PP v Loo Choon Fatt
[1976] 2 MLJ 256. The position is the same, if not worse, today (see
Ang Chai Seng v PP [2000] 2 MLJ 35). The seriousness of the drug
menace must therefore be reflected in the sentence to be passed so that
the requirements of public interest can be served effectively. At the
same time it must be realized that the proper sentence for each drug
offence depends on its own peculiar circumstances. It has been held
that the weight of the drugs found on a person plays a significant role
in assessing the appropriate sentence (see Zaidon Shariff v PP
[1996] 4 CLJ 441). In this regard I refer to PP v Tia Ah Leng
[2000] 5 MLJ 401 where I had the occasion to say at p 412:
‘As the penalties for drug offences under the Act vary dependent
on the weight of drugs involved the imposition of the maximum
sentence in a particular case will be guided by the weight though
it cannot be the yardstick in all cases. In saying this I refer
to R v Laurentiu and Bechru (1992) 63 A Crim R 402 where
Wood J observed that it is not entirely appropriate to place too
much emphasis on the precise quantity of the drug involved,
because in some cases the possession relates to that of an
intermediary of principal in the course of an enterprise that is
judged particularly criminal, whereas in other cases the
possession may be that of the end user. Be that as it may, I must
immediately observe that these mitigating circumstances may be
displaced in a particular case where the quantity of drugs
involved is large. This is because quantity can in fact supply
evidence of motive (personal need versus greed), degree of
involvement, and potential for damage to [*544] community
as well as being an indicator of the gravity of the offence (see
Sentencing: State and Federal Law in Australia (2nd Ed) by
Fox and Freiberg p 1009). A claim of possession for mere personal
consumption may also be not sustainable if the street value of
the drugs is disproportionate to the financial standing of an
accused. The mitigating effect of merely being an intermediary
may also be weakened if the quantity of drugs is large thereby
indicating active involvement in the enterprise. The absence of
any of these circumstances in favour of an accused would be an
indication of his heinous intention and thereby militate against
innocent possession with the result that the imposition of the
maximum sentence may be justified.’
The plea in mitigation of the accused consisted of a mere statement of

his age and marital status. He did not give evidence so as to enable
the Court to ascertain the role he played in being found in possession
of the dangerous drugs. Neither did he state anything to that effect in
his plea in mitigation. The weight of the dangerous drugs involved does
not support the inference that he kept them for his own consumption. In
the circumstances, bearing in mind the principles of sentencing that I
have referred to and the fact that the accused is a first offender I
convicted him and imposed a sentence of ten years imprisonment and ten
strokes of the rotan.
[14] 13 It is clear to me that the learned judge had applied the correct principle of
sentencing when he imposed the sentence on the appellant. Before us, the appellant’s
counsel repeated the same mitigation that he did in the court below. No new issue
was raised in respect of the mitigation. As such, I could not find any ground to disturb
the sentence imposed by the learned judge.
[15] 14 For the above reasons, we dismissed the appeal in respect of conviction and
the sentence. We affirmed the conviction and the sentence imposed by the learned
judge.
ORDER:
Appeal dissmissed. Conviction and sentence affirmed.
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TEH GEOK HOCK V PUBLIC PROSECUTOR
[1989] 3 MLJ 162
CRIMINAL APPEAL NO 72 OF 1987
SUPREME COURT (KUALA LUMPUR)
DECIDED-DATE-1: 21 JULY 1989
HASHIM YEOP A SANI CJ (MALAYA), HARUN HASHIM AND MOHAMED YUSOFF SCJJ
CATCHWORDS:
Criminal Law - Dangerous drugs - Trafficking in - Defence that drug was for own
consumption and not for trafficking - Whether accused being an addict could also be a
drug trafficker - Meaning of trafficking - Burden on accused to rebut presumption -
Dangerous Drugs Act 1952, ss 2, 37 & 39B
Evidence - Presumption - Burden on accused to rebut - Dangerous Drugs Act 1952, ss

2, 37 & 39B
Words and Phrases - 'Trafficking' - Dangerous Drugs Act 1952, s 2
HEADNOTES:
In this case the appellant had been charged with trafficking in a dangerous drug, to
writ, heroin. When the appellant was arrested he had ten small plastic packets of
heroin concealed in the front part of his underpants. The defence of the appellant was
that he was at the material time a severe drug addict and that the heroin found on
him was for his own consumption. The learned trial judge accepted the evidence of
the defence that the appellant was a drug addict on the day of his arrest and that in
all probability the addition was quite severe. The learned judge however considered
whether the appellant, being an addict, could not also be a drug trafficker within the
meaning of the Act. After considering the evidence he rejected the explanation on the
ten packets of heroin found on the person of the appellant and was satisfied that the
appellant was trafficking in the drugs as charged and convicted the appellant. The
appellant appealed.
Held, dismissing the appeal:

(1) The definition of 'trafficking' in the Dangerous Drugs Act is wide and
includes not only buying and selling but also carrying, concealing and
keeping.
(2) Considering the case from the evidence of both the prosecution and the
defence the facts proved fall squarely into the definition of trafficking in
the Dangerous Drugs Act. The appellant was found in possession, custody and
control of the heroin the weight of which is more than 15 g. This invoked the
presumption of trafficking under s 17 of the Act. There is the undisputed
evidence of concealment. The appellant also admitted that he bought the drugs
for his friends and that he would distribute the drugs to his friends.
Finally in his cautioned statement he stated he wanted to sell the drugs to a
person he named.
(3) Although the concluding paragraph of the judgment of the learned judge
was not couched in clear language to reflect the proper test to be applied,
however after reading the whole of his judgment the court was satisfied that
what the learned judge meant to say was that having viewed the totality of
the evidence he was satisfied that the presumption of trafficking was not
rebutted on a balance of probability.
(4) There was ample evidence in this case to convict the appellant on a
charge of trafficking in a dangerous drug under the Act and the appeal is
accordingly dismissed and the sentence confirmed.
Cases referred to
Ong Ah Chuan v PP [1981] 1 MLJ 64
PP v Yuvaraj [1969] 2 MLJ 89
Akin Khan bin Abdul Rahman v PP [1987] 2 MLJ 217
Dangerous Drugs Act 1952 ss 2, 37, 39(B)(2)
Misuse of Drugs Act (Cap 185, 1985 Ed) [Sing]
Sidney Augustin ( K Siva Segara with him) for the appellant.
Ng Aik Guan (Deputy Public Prosecutor) for the respondent.
LAWYERS: Sidney Augustin ( K Siva Segara with him) for the appellant.
Ng Aik Guan (Deputy Public Prosecutor) for the respondent.
JUDGMENTBY: HASHIM YEOP A SANI CJ (MALAYA)
(delivering the judgment of the court): The appellant is charged under s 39B(1)(a) of
the Dangerous Drugs Act 1952 ('the Act') that on 20 December 1983 at about
12.50am at No 8, Tepian Loke Yew, Off Jalan Loke Yew, Kuala Lumpur did on his own
behalf traffic in a dangerous drug, to wit, 36.97 gm of heroin, thereby committing an
offence punishable under s 39B(2) of the Act.
Immediately before his arrest the appellant was with three other male Chinese in a
Honda Civic car bearing registration no AAK 2646 which was stopped by the police at
the place mentioned in the charge. The appellant was at the time of his arrest 20
years 10 months old.
Throughout the trial the appellant never disputed the fact that at the time of his arrest
he had ten small plastic packets of heroin concealed under the front part of his
underpants. The packets contained a total of 86.74 g nett of a light brown powdery
substance which on analysis the chemist found to contain 36.97 g of heroin.
The prosecution's case was straightforward. The heroin being 36.97 g, the appellant
was presumed under s 37(da)(i) to have been trafficking in the drug until the contrary
is proved. Thus the learned judge called upon him to make his defence. The appellant
gave his evidence on oath and also called five other witnesses. The crux of his defence
is that he was at the material time a drug addict, and a severe one at that, and that
the heroin found [*163] on his person was for his own consumption. Defence
counsel both in the court below and before us valiantly canvassed the proposition that
since there was overwhelming evidence that the appellant was a hardcore addict at
the time of his arrest, the presumption of trafficking has been rebutted on the balance
of probability and that the heroin found on him was for his own consumption and not
for trafficking.
It seems quite clear to us that the learned judge accepted the evidence of the defence
that the appellant was a drug addict on the day of his arrest and that in all probability
the addiction was quite severe. Then the learned judge asked himself whether the
appellant, being an addict, could not also have been a drug trafficker within the
meaning of the Act.
To satisfy himself the learned judge considered the evidence of the defence relating to
the ten packets of heroin found concealed on the person of the appellant. The learned
judge found from the evidence that the appellant's drug addiction required him to use
half a packet of heroin a day. The appellant in his evidence said that the whole
amount would last him 30 days. He also said that he bought the ten packets to share
with his two friends and that the two friends had also contributed towards the
purchase. Under cross-examination the appellant said that he had contributions from
his friends to buy the ten packets of heroin which cost $ 600.
The defence also relied on the cautioned statement of the appellant made to DW2,
Insp Saliman. He said he gave the statement voluntarily. The intention of the defence
was to show by way of a voluntary statement that the appellant was a drug addict.
However in the cautioned statement itself in response to the question, 'Mengapa
dadah yang didapati pada kamu itu banyak?' ('Why was the amount of drug found on
you so much?') the reply by the appellant was, 'Sebab saya hendak jual kepada Saw
Chai yang bekerja di Paris Pub.' ('Because I wanted to sell to Saw Chai who was
working in Paris Pub'.)
It is quite clear then that although the learned judge accepted the evidence that the
appellant was a drug addict, he rejected his explanation of the ten packets of heroin
found on his person. He was satisfied that the appellant was trafficking in the drugs as
charged and convicted the appellant. 'Trafficking' is defined in the Act as follows:
'Trafficking' includes the doing of any of the following acts, that is
to say, manufacturing, importing, exporting, keeping, concealing,
buying, selling, giving, receiving, storing, administering,
transporting, carrying, sending, delivering, procuring, supplying or
distributing any dangerous drug.
True, the definition in the Act sounds artificial and not according to the ordinary
meaning of the word 'trafficking' which is normally understood to mean to trade in,
buy or sell, any commodity, albeit often with sinister implication. See also the Shorter
Oxford English Dictionary. The definition of 'trafficking' in the Act is wide and includes
not only buying and selling, but also carrying, concealing and keeping. It is totally
different from the definition of the word 'traffic' in the Singapore Misuse of Drugs Act.
In the Singapore provision to 'traffic' in a controlled drug so as to constitute an
offence of trafficking involves something more than passive possession or self-
administration of the drug. See Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64.
Considering this case from the evidence of both the prosecution and the defence the
facts proved fall squarely into the definition of 'trafficking' in our Act. The appellant
was found in possession, custody and control of the said heroin the weight of which is
more than 15 gm. This invoked the presumption of trafficking under s 37 of the Act.
There is the undisputed evidence of concealment (ten packets of the heroin found
concealed in the underpants of the appellant). The appellant also admitted that he
bought the drugs for his friends and that he would distribute the drugs to the friends.
Finally in his cautioned statement he stated that he wanted to sell the drugs to one
Saw Chai working in Paris Pub.
To digress a little we would like to point out that the concluding paragraph of the
judgment of the learned judge was not couched in a clear language to reflect the
proper test to be applied. See PP v Yuvaraj [1969] 2 MLJ 89. However, after reading
the whole of his judgment we are satisfied that what the learned judge meant to say
was that having viewed the totality of the evidence he was satisfied that the
presumption of trafficking was not rebutted on the balance of probability. This court
had occasion to deal with a similar language lapse in a case also under s 39B(2) of the
Act ( Akin Khan bin Abdul Rahman v PP [1987] 2 MLJ 217) which also referred to PP v
Yuvaraj [1969] 2 MLJ 89.
In this case there was ample evidence to convict the appellant on a charge of
trafficking in a dangerous drug under the Act. The appeal is accordingly dismissed and
the sentence confirmed.
Appeal dismissed.
SOLICITORS:
Solicitors: Augustin Negrin & Co.
LOAD-DATE: June 3, 2003
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PUBLIC PROSECUTOR v YAP FOOK CHOY
[2004] 4 MLJ 304
CRIMINAL TRIAL NO 47–04 OF 2001
HIGH COURT (KOTA KINABALU)
DECIDED-DATE-1: 14 JUNE 2004
SULONG MATJERAIE J
CATCHWORDS:
Criminal Law - Dangerous Drugs Act (Malaysia) - s 37(d) - Possession of drugs -
Whether the accused had physical control and knowledge of the impugned drugs -
Dangerous Drugs Act 1952 s 37(d)
Criminal Law - Dangerous Drugs Act (Malaysia) - s 37(da) - Trafficking - Weight of

Methaphetamine was 152.43g - Whether amount of drugs supported charge of
trafficking - Dangerous Drugs Act 1952 s 37(da)
Criminal Procedure - Trial - Prima facie case - Whether prosecution had made out a
prima facie case
Evidence - Expert evidence - Chemist’s analysis of substance - Chemist blended

crystalline substances into a powder of uniform homogenous concentration for testing
- Whether amount and weight of samples tested used to determine whether
crystalline substances were Methamphetamine insufficient - Whether chemist’s
opinion could be relied on - Dangerous Drugs Act 1952 s 37(j)
Evidence - Witness - Failure to call witness - Accused stated that drugs could have
belonged to ‘Lau Yeh’ - ‘Lau Yeh’ not called as witness - Whether ‘Lau Yeh’ a fictitious
character
HEADNOTES:
The accused was charged with trafficking in dangerous drugs under s 39B(1)(a) of the
Dangerous Drugs Act 1952 (‘DDA’). At about 2.30pm on 17 April 2001 the accused’s
vehicle was stopped by police. The accused was alone and upon inspection of the
vehicle the police found a red plastic bag on the floor of the front left hand side of the
passenger’s seat containing a box with four clear plastic bags and another red paper
envelope on the dashboard at the left front side of the vehicle, both containing a
crystalline substance suspected to be Methamphetamine. These substances were later
analysed by a Government Chemist and found to be a crystalline substance of the
same nature and description. The chemist weighed the substance in each packet and
blended the contents to a powder of uniform homogenous concentration and then
tested random and representative samples of the homogenous powder using four
types of tests. The powder from all the crystalline substances contained
Methamphetamine and, after a quantitative test for concentration and purity, the
chemist established that the net combined weight of Methamphetamine was 152.43g.
The accused claimed to have no knowledge of the packets containing the drug and
that they may have belonged to another person to whom he owed money called ‘Lau
Yeh’ who had also been in his vehicle earlier that day. The issues raised at trial were:
(1) whether a prima facie case had been made out by the prosecution; (2) whether
the amount and weight of the samples tested used to determine whether the
crystalline substances were Methamphetamine were insufficient and whether the
opinion of the chemist should be relied upon; (3) whether the person [*305] called
‘Lau Yeh’ existed; (4) whether the acussed was in possession of the drugs and (5)
whether the amount of drugs supported a charge of trafficking.
Held, finding the accused guilty, convicting him of trafficking and imposing the death
sentence:
(1) ‘Prima facie’ means on the face of it or at first glance and a ‘prima
facie case’ is a case which is sufficient to call for an answer. ‘Prima
facie evidence’ is evidence which is sufficient to establish a fact in
the absence of any evidence to the contrary, but is not conclusive.
There should be credible evidence on each and every essential
ingredient of the offence. Credible evidence is evidence which has been
filtered and which has gone through the process of evaluation. Any
evidence which is not safe to be acted upon should be rejected; ( PP
v Ong Cheng Heong [1998] 6 MLJ 678, [1998] 4 CLJ 209) (see para
57).
(2) The prosecution had made out a prima facie case against the accused
which if it remained unrebutted would warrant a conviction. This
finding was based on an objective assessment of the evidence adduced in
court (see para 58).
(3) Unless the opinion of a Government Chemist is so inherently incredible,
the court is entitled to accept such opinion at face value as true and
accurate unless the defence calls evidence in rebuttal by another
expert to contradict that opinion; K Saravanan a/l S Karuppiah v
PP [2002] 4 CLJ 144, [2002] 3 MLJ 465 and Munusamy v PP
[1987] 1 MLJ 492 followed. The Government chemist had carried out a
detailed analysis of the impugned substance and he had testified
positively that his tests showed the substance to be Methamphetamine.
The evidence given by the chemist was satisfactory and could not be
faulted (see paras 51, 54 and 55)
(4) What is required for testing is that the actual amount or weight of
samples taken for testing be given by the chemist in order to comply
with s 37(j) of the DDA. Although the substance in four plastic bags
was mixed and blended into a homogenous powder for testing the actual
weight of the content of each plastic bag was identified, determined
and given by the chemist; the amount tested by the chemist was
sufficient to determine that the drug was Methamphetamine; and
according to the chemist, blending the crystalline substance to a
homogenous powder meant that if any part of the powder were to be taken
for qualitative or quantitative analysis, it will produce a similar
percentage of concentration or purity and even if the entire content
was tested, the purity of the Methamphetamine found will be similar and
the outcome will be the same; Loo Kia Meng v PP [2000] 3 MLJ
664, [2000] 3 CLJ 653 distinguished (see para 54).
(5) From the testimonies of the accused and DW3, although they both know ‘
Lau Yeh’, his real name was not known. ‘Lau Yeh’ is a ‘loan shark’ yet
there was no interest on the loan of RM100,000. More surprising, there
was no loan agreement and neither was there any security offered for
the loan. Both witnesses also failed to provide the place where ‘Lau Yeh
’ could be found. Even the simple thing like the registration plate
number of ‘Lau Yeh’s’ motorcycle could not be provided by them. ‘Lau Yeh
’ was only a fictitious character (see para 85).
(6) The accused was seen to be driving slowly in a busy street at Inanam
and when he was stopped he was in a state of shock. He asked PW2: ‘
Boss, kita pergi ke hadapan, kita boleh cerita’ and when the impugned
drug was found the accused uttered the words ‘Ada sikit barang’. The
irresistible inference was that the accused must have had knowledge of
the impugned drugs inside the red plastic bag as well as the red paper
envelope at the dashboard on the left front side of the vehicle and
therefore that the accused had physical control of the impugned drug
(see paras 94 and 95).
(7) Due to the weight of the drug involved, the accused was presumed under
s 37(da)(xvi) of the DDA, until the contrary is proved, to be
trafficking in the said drug. After careful examination and evaluation
of the evidence in its entirety, and perusal of all the authorities
filed into this court, there was overwhelming evidence to show that the
prosecution had proved its case beyond any reasonable doubt and that
the defence failed to raise any reasonable doubt on the prosecution
case (see paras 97 and 99).
[Bahasa Malaysia summary

Tertuduh telah dituduh mengedar dadah berbahaya di bawah s 39B(1)(a) Akta Dadah
Berbahaya 1952 (‘ADB’). Pada 2.30pm pada 17 April 2001 kenderaan tertuduh telah
dihentikan oleh polis. Tertuduh berseorangan dan setelah polis memeriksa kenderaan
itu polis telah menjumpai satu beg plastik merah di atas lantai di sebelah kiri
bahagian hadapan tempat duduk penumpang yang mengandungi satu kotak dengan
empat beg plastik jernih dan satu sampul surat merah di atas papan pemuka pada
sebelah kiri bahagian hadapan kenderaan itu, kedua-duanya mengandungi bahan
berhablur yang disyaki Methamphetamine. Bahan ini kemudiannya dianalisakan oleh
seorang Ahli Kimia Kerajaan dan didapati adalah bahan berhablur yang mempunyai
sifat dan gambaran yang sama. Ahli kimia itu telah menimbang bahan di dalam setiap
paket dan menyebatikan kandungan itu kepada bedak yang mempunyai kepekatan
seragam yang sama dan telah menguji sampel-sampel rawak dan representatif bedak
yang seragam itu menggunakan empat jenis ujian. Semua bedak daripada bahan-
bahan berhablur mengandungi Methamphetamine, dan selepas ujian kuantitatif untuk
kepekatan dan ketulenan, ahli kimia itu mendapati bahawa jumlah berat bersih
Methamphetamine adalah 152.43g. Tertuduh tidak mengaku mempunyai
pengetahuan tentang paket-paket itu yang mengandungi dadah dan berkata bahawa
ia mungkin dipunyai oleh seorang kepada siapa beliau terhutang wang dipanggil ‘Lau
Yeh’ yang berada di dalam kenderaan beliau pada hari itu. Isu-isu yang dibangkitkan
di perbicaraan itu adalah: (1) sama ada kes prima facie telah dibuktikan oleh pihak
pendakwaan; (2) sama ada jumlah dan berat sampel-sampel [*306] yang diuji yang
digunakan untuk menunjukkan sama ada bahan berhablur itu adalah
Methamphetamine tidak mencukupi dan sama ada pendapat ahli kimia itu patut
diikut; (3) sama ada orang yang bernama ‘Lau Yeh’ wujud; (4) sama ada tertuduh
mempunyai milikan dadah itu dan (5) sama ada jumlah dadah itu menyokong
pertuduhan pengedaran.
Diputuskan, mendapati tertuduh bersalah, menyabit beliau mengedar dadah dan

mengenakan hukuman mati:
(1) ‘Prima facie’ bermakna pada permukaannya atau pada pertama kali pandang
dan ‘prima facie case’ adalah kes yang mana memadai untuk meminta
jawapan. ‘Prima facie evidence’ adalah keterangan yang mencukupi untui
membuktikan fakta dalam ketiadaan keterangan bercanggah, tetapi tidak
muktamad. Sepatutnya terdapat keterangan yang boleh dipercayai pada
setiap bahagian kesalahan itu. Keterangan yang boleh dpercayai adalah
keterangan yang telah diuji dan telah dinilaikan. Sebarang keterangan
yang tidak selamat digunakan patut ditolak; ( PP v Ong Cheng Heong
[1998] 6 MLJ 678, [1998] 4 CLJ 209) (lihat perenggan 57).
(2) Pihak pendakwaan telah membuktikan kes prima facie terhadap tertuduh
yang jika ia tidak dipatahkan akan mewajibkan sabitan. Keputusan ini
berdasarkan penaksiran keterangan yang dikemukakan di mahkamah yang
objektif (lihat perenggan 58).
(3) Kecuali jika pendapat seorang Ahli Kimia Kerajaan sukar dipercayai,
mahkamah ini berhak menerima pendapat sebegitu berdasarkan nilai
lahirnya sebagai benar dan tepat kecuali jika pihak pembelaan
mengemukakan keterangan mematah oleh pakar yang lain untuk menyangkal
pendapat itu; K Saravanan a/l S Karuppiah v PP [2002] CLJ 144,
[2002] 3 MLJ 465 dan Munusamy v PP [1987] 1 MLJ 492 diikut. Ahli
kimia kerajaan telah menjalankan analisa yang terperinci bahan yang
dipersoalkan dan beliau telah memberi keterangan secara positif bahawa
ujian beliau menunjukkan bahan itu sebagai Methamphetamine. Keterangan
yang diberikan oleh ahli kimia adalah memuaskan dan tidak dapat
disalahkan (lihat perenggan 51, 54 dan 55).
(4) Apa yang diperlukan untuk menguji adalah bahawa jumlah atau berat
sampel-sampel yang diambil untuk ujian sebenarnya diberikan oleh ahli
kimia untuk mematuhi s 37(j) ADB. Walaupun bahan di dalam empat beg
plastik telah dicampur dan disebatikan menjadi bedak seragam untuk
diuji berat sebenar kandungan setiap beg plastik dikenal pasti,
ditentukan dan diberi oleh ahli kimia; jumlah yang diuji oleh ahli
kimia adalah cukup untuk menentukan bahawa dadah itu adalah
Methamphetamine; dan mengikut ahli kimia itu, menyebatikan bahan
berhablur kepada bedak seragam bermakna bahawa jika sebarang bahagian
daripada bedak itu diambil untuk analisa kualitatif atau kuantitatif,
ia akan menghasilkan peratus kepekatan atau ketulenan yang sama dan
jika seluruh kandungan itu diuji, ketulenan Methamphetamine yang
didapati akan sama dan keputusannya adalah sama; Loo Kia Meng v PP
[2000] 3 MLJ 664, [2000] 3 CLJ 653 dibezakan (lihat perenggan 54).
[*307]
(5) Daripada keterangan tertuduh dan DW3, walaupun mereka berdua mengenali ‘
Lau Yeh’, nama sebenar beliau tidak diketahui. ‘Lau Yeh’ adalah seorang
‘loan shark’ tetapi tidak terdapat faedah pada pinjaman RM100,000. Apa
yang lebih memeranjatkan adalah tidak terdapat perjanjian pinjaman
ataupun cagaran untuk pinjaman itu. Kedua-dua saksi juga gagal
memberitahu tempat di mana ‘Lau Yeh’ boleh dijumpai. Perkara yang
semudah nombor plet pendaftaran motorsikal ‘Lau Yeh’ juga tidak dapat
dibekalkan oleh mereka. ‘Lau Yeh’ hanyalah satu rekaan (lihat perenggan
85).
(6) Tertuduh telah dilihat memandu di jalan yang sibuk di Inanam dan dan
apabila beliau dihentikan, beliau di dalam keadaan terperanjat. Beliau
bertanya kepada PW2 ‘Boss, kita pergi ke hadapan, kita boleh cerita’
dan apabila dadah yang dipersoalkan dijumpai, tertuduh berkata ‘Ada
sikit barang’. Inferens yang tidak dapat dibendung adalah bahawa
tertuduh mesti mempunyai pengetahuan mengenai dadah yang dipersoalkan
di dalam beg plastik berwarna merah dan sampul surat merah di atas
papan pemuka di sebelah kiri bahagian hadapan kenderaan itu dan oleh
itu tertuduh mempunyai kawalan fizikal dadah yang dipersoalkan itu
(lihat perenggan 94 dan 95).
(7) Oleh kerana berat dadah yang terlibat, tertuduh dianggap di bawah s
37(da)(xvi) ADB, sehingga dibuktikan sebaliknya, mengedar dadah itu.
Setelah penelitian dan penilaian keterangan secara menyeluruh, dan
penelitian semua autoriti yang difailkan di dalam mahkamah ini,
terdapat keterangan yang amat sangat untuk menunjukkan bahawa pihak
pendakwaan telah membuktikan kesnya melebihi keraguan yang munasabah
dan pihak pembelaan gagal membangkitkan keraguan munasabah pada kes
pihak pendakwaan (lihat perenggan 97 dan 99).]
Notes
For cases on s 37(d) of the Dangerous Drugs Act (Malaysia), see 4 Mallal’s Digest (4
th Ed, 2003 Reissue) paras 163–168.
For cases on s 37(da) of the Dangerous Drugs Act (Malaysia), see 4 Mallal’s Digest (4
th Ed, 2003 Reissue) paras 192–201.
For cases on prima facie case, see 5 Mallal’s Digest (4 th Ed, 2001 Reissue) paras
4160–4175.
For cases chemist’s analysis of substance, see 7(1) Mallal’s Digest (4 th Ed, 2001
Reissue) paras 1366–1368.
For cases on failure to call witness, see 7(1) Mallal’s Digest (4 th Ed, 2001 Reissue)
paras 2589–2592.
For meaning of and presumption of possession of dangerous drugs, see 11 Halsbury’s
Laws of Malaysia, para [190.549].
For trafficking in dangerous drugs, see 11 Halsbury’s Laws of Malaysia, para
[190.582].
For opinion of experts, see 12 Halsbury’s Laws of Malaysia, paras [210.117]–
[210.128].
For failure to call witnesses, see 12 Halsbury’s Laws of Malaysia, paras [210.035].
[*308]
Cases referred to
Chan Pean Leon v PP [1956] MLJ 237
K Saravanan a/l S Karuppiah v PP [2002] 4 CLJ 144, [2002] 3 MLJ 465
Kesavan a/l Petchayo @ Balakrishnan v PP [2003] 2 MLJ 209, [2003] 1 CLJ 846
Leow Nghee Lim v Reg [1956] MLJ 28
Loo Kia Meng v PP [2000] 3 MLJ 664, [2000] 3 CLJ 653
Muhammad b. Hassan v PP [1998] 2 CLJ 170
Munusamy v PP [1987] 1 MLJ 492
PP v Ong Cheng Heong [1998] 6 MLJ 678, [1998] 4 CLJ 209
PP v Tang Kheng Teong & Anor [1997] 3 MLJ 637
Tong Peng Hong v PP [1955] MLJ 232
Wong Nam Loi v PP [1997] 3 MLJ 795
Criminal Procedure Code s 180(3), 277
Dangerous Drugs Act 1952 ss 37(d), 37(da), 37(da)(xvi), 37(j), 37A(1)(b), 39B(2),
First Schedule
Norliza Yusoff (Attorney-General’s Chambers) for the prosecution.

Cedric Choo (Cedric Choo & Co) for the defendant.
Sulong Matjeraie J:
[1] 1 The accused, Mr Yap Fook Choy, was charged upon the following charge:
That you, on 17 April 2001 at around 2.30pm, in front of Choon Nyen

Fatt Supermarket, Pekan Inanam, in the District of Kota Kinabalu, in
the State of Sabah, on your own behalf, did traffic in a dangerous
drug, to wit 152.43 grammes of Methamphetamine, and you have thereby
committed an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952
(Revised 1980) and punishable under s 39B(2) of the same Act.
Case of the Prosecution
[2] 2 According to the evidence led by the prosecution, on 17 April 2001 at around
2.30pm, ASP Fisol bin Salleh (‘PW2 ’) led a police party comprising Chief Inspector
Ederian Masaat, Chief Inspector Afandi Bakar, Detective Sergeant Major Japri Bakul @
Henry, Lance Corporal Sabturani bin Maul and Constable Ibrahim Mahadi, all of the
Narcotics Branch, Police Headquarters, Kepayan, Kota Kinabalu and conducted an
anti-narcotics operation at Pekan Inanam, Mengattal, Kota Kinabalu.
[3] 3 At about 2.30pm with the assistance of his men, PW2, ASP Fisol stopped one
vehicle Suzuki Vitara, purplish in colour, bearing plate registration number SA 8202 L
(vehicle) driven slowly by a male Chinese driver, later identified as Yap Fook Choy,
the accused, in front of Choon Nyen Fatt supermarket, Inanam. The accused was
alone inside the vehicle. PW2 then approached the vehicle and opened its driver’s
door. When PW2 introduced [*309] himself as a Police Officer by showing his
warrant card, the accused was in a state of shock and said: ‘Boss kita pergi ke
hadapan, kita boleh cerita’. This request was ignored by PW2.
[4] 4 PW2 ordered the accused to get out of his vehicle and with the help of
Detective Corporal Sabturani, Constable Ibrahim bin Mahadi, and assisted by
Detective Sergeant Major Japri Bakul, PW2 personally made an inspection inside the
vehicle.
[5] 5 In the presence of the accused, PW2 found a red plastic bag on the floor of the
front left hand side of the passenger’s seat. PW2 asked the accused as to what was
inside the red plastic bag, and the accused said: ‘ada sikit barang’. PW2 immediately
administered to the accused the statutory caution under s 37A(1)(b) of the Dangerous
Drugs Act 1952 (‘DDA’).
[6] 6 PW2 then took possession of the red plastic bag and when he opened the said
plastic bag in front of the accused, he found inside it one blue/white box with the
writing of ‘Tape Dispenser’. PW2 opened the said box and found four (4) clear plastic
bags containing a crystalline substance which PW2 suspected to be
Methamphetamine. PW2 ordered his men to handcuff the accused.
[7] 7 A further search was conducted on the other parts inside the vehicle and PW2
found one red paper envelope with the writing ‘Good Ties Good Times at Parkson’ on
the dashboard at the left front side of the vehicle. Inside the red paper envelope PW2
found one clear plastic bag containing a crystalline substance suspected to be
Methamphetamine. A body search was made on the accused’s person by PW2 but he
found nothing incriminating except for a few personal items of the accused such as a
chocolate coloured wallet (‘P25’) containing RM600 cash (‘P27’), driving licence
(‘P26’), ATM Mayban Finance Card (‘P28’) and two hand phones (mobiles) of Nokia
(‘P23’) and Siemens (‘P24’) brand. Having searched the vehicle PW2 took possession
of all the exhibits seized both from the accused’s person and the vehicle and he
personally drove the vehicle away. The exhibits were at all times in the personal
possession of PW2.
[8] 8 When PW2 drove the vehicle, the accused was sitting at the back passenger
seat escorted by Detective Corporal Sabturani, Constable Ibrahim Mahadi. They went
to the residence of the accused but found nothing incriminating. While there, all the
exhibits were in the possession of PW2. Later, the accused was taken to the Narcotics
Department of the District Police Headquarters, Karamunsing, Kota Kinabalu where, in
his (the accused’s) presence PW2 made markings on all the exhibits seized. PW2 drew
up the search list and weighed the seized suspected drug. While driving the vehicle,
PW2 kept all the exhibits on his lap.
[9] 9 PW2 made a Police Report on the arrest and the seizure of exhibits made
under Menggatal Police Report No. 1540/2001. Thereafter all the seized exhibits
together with the accused were handed over to the Investigating Officer, PW5 Chief
Inspector Zulfakar bin Abdul Aziz (‘IO’).
[*310]
[10] 10 The vehicle driven by the accused ie the Suzuki Vitara SA 8202 L was
bought by the accused for the use of PW4 Liew Chwee Ing, his wife. The accused had
been the registered owner of the said vehicle since 1996.
[11] 11 The above facts as made out by the Prosecution are not disputed by the
defence as reflected in their submission of no case to answer at encl 30 duly filed and
read in this court.
The Evidence of the Chemist
[12] 12 PW1 En Shaari bin Desa, the Chemist, gave evidence that he has worked as
a chemist since 1992. He has an Honours Degree in Science (Chemistry) from the
Universiti Kebangsaan Malaysia, Bangi where he graduated in 1991. He is a member
of the Institute of Chemists and had followed in service training and had also exposed
himself to the workings of senior chemists during the tenure of his service. Since 1997
he has analysed dangerous drugs which includes among others cannabis,
methamphetamine, heroin, monoacetylmorphines, 3, 4 Methylenedioxyamphetamine,
Ketamine, codine. He had given evidence in both the High Court as well as the lower
courts.
[13] 13 PW1 took great care in analyzing the exhibits handed over to him by PW5
Chief Inspector Zulfakar bin Abd Aziz.
[14] 14 The exhibits were kept in a locked steel cabinet in the strong room at the
Narcotics division of the Chemistry department Malaysia, Kota Kinabalu. Only PW1 has
the key to the steel cabinet whereas the keys to the strong room were kept by the
Director of Chemistry Department, Sabah.
[15] 15 The exhibits were: (1) the red plastic bag which contains the four clear
plastic bags containing a crystalline substance and (2) a red paper envelope which
contains one clear plastic bag containing a crystalline substance.
[16] 16 The markings on the four clear plastic bags found in the red plastic bag
were a signature on each one of them; the date of 17 April 2001 and they were
numbered A1, A2, A3 and A4, and to each of them the Chemist marked (KK)FOR
691/01-0 followed by capital letter ‘S’ and were respectively marked S1, S2, S3 and
S4.
[17] 17 In the meantime the red paper envelope had a marking of the letter ‘B’, a
signature and was dated 17 April 2001. Inside it the clear plastic bag was marked ‘B1’
which contained a crystalline substance.
[18] 18 The chemist found that the contents of the five packets were a crystalline
substance of the same nature and description. He weighed them using an electronic
scale ‘Sartorius’ model BP221S, code ‘MB 15’. Before weighing was done, the accuracy
and competency of the scale was verified using two standard weights; one with a
weight of 1.000gm and the other 100.000gm in weight. Thereafter the electronic scale
was confirmed to be in good working condition.
[*311]
[19] 19 The weight of the clear crystalline substance in respect of the four plastic
bags exhs P10A, P10B, P10C and P10D were 49.3972g, 49.3320g, 49.3888g and
49.2661g respectively, and thus having a combined weight of 197.3841g.
[20] 20 The weight of the clear crystalline substance found in the plastic B1 (exh
P13) was 5.0466g.
[21] 21 PW1 re-emphasised that the crystalline substances found were of the same
nature and description. After weighing had been done, PW1 mixed and blended the
contents from plastic bags P10A, P10B, P10C and P10D using a ‘Sumeet’ commercial
blender in order to achieve a powder of uniform homogenous concentration. The
blending process took five (5) minutes. When cross examined as to the purpose of
blending the crystalline substance from P10A, P10B, P10C and P10D for five minutes,
PW1 replied:
‘Tujuan ketulan hablur putih dikisar ialah untuk menjadi ianya homogen
bermaksud, mana-mana bahagian pada serbuk tersebut sekiranya diambil
untuk analisis qualitatif dan quantitatif akan memberikan peratus
ataupun nilai kepekatan yang seragam.’
[22] This court’s translation:
‘The purpose of blending the white crystallized substance is to make it

homogenous, which means, should any part of the powder be taken for
qualitative and quantitative analysis, it will produce a similar
percentage of concentration.’
Tests Undertaken
[23] 22 Three colour tests were undertaken. The first: Marquis Reagent test where
PW1 took random and representative samples of the homogenous powder. The
outcome of the Marquis Reagent test was that PW1 found the presence of ‘Primary
Amine’ group in the said homogenized powder.
[24] 23 The second colour test, the ‘Simon’s’ test found the presence of ‘Secondary
Amine’ in the said homogenized powder. A third test was done by using ‘Silver Nitrate’
and this resulted in the finding indicating the presence of a salt base known as
‘Hydrochloride’.
[25] 24 After the three colour tests were done, PW1 concluded that the crystalline
substance blended to become homogenized powder containing ‘Methamphetamine
Hydrochloride’. Further, a fourth test was conducted by PW1 using Gas
Chromatography-Mass Spectrometry (GC-MS) by taking random representative
samples from the homogenized powder. The machine used was ‘Shimadzu’ and the
column used was HP-5.4.
[26] 25 From the analysis undertaken using the said machine, it was confirmed that
the blended homogenized powder contained ‘Methamphetamine’, that is the type of
dangerous drug as listed in the First Schedule of the Dangerous Drug Act 1952.
[*312]
[27] 26 After the existence of Methamphetamine has been established, a

quantitative test was undertaken by PW1 to ascertain its percentage of concentration
or purity. For this test, PW1 employed a machine ‘Gas Chromatography Flame Ionic
Detector’ — ‘Shimadzu’ column HP-5 and used 24 replicates from random and
representative samples. PW1 explained that 24 replicate samples were used as this is
the standard practice. PW1 said that based on statistics for chemistry analysis, the
minimum samples for quantitative analysis was 21. He has in fact exceeded the
minimum requirement by using 24 replicates. The outcome of this quantitative test
showed that the percentage of concentration or purity of Methamphetamine in the
crystalline substance was 75.31% after allowing a margin of error of O.94%. PW1
therefore concluded that the net weight of Methamphetamine from the homogenous
powder from A1l, A2, A3 and A4 (exhs P10A, P10B, P10C and P10D) was 148.64g.
[28] 27 Here this court notes that this weight of 148.64g exceeds the 50g stipulated
under s37(da)(xvi) of the DDA.
[29] 28 The total weight used for quantitative analysis was 0.3386g. For colour
tests and the test using GCMS an amount of 7.12g was used.
[30] 29 PW1 conducted the same test on the crystalline substance found in the
clear plastic bag found in the red paper envelope ‘B1’ (‘P13’) adopting the same
methods as hereinbefore mentioned except that he used ‘Mortar’ to turn the said
crystalline substance into powdery form. PW1 used 0.72g for colour and GCMS tests
and 0.1133g was used in the quantitative test coming from six representative and
random samples. From the various tests done on the contents of exh P13, PW1
concluded that the amount of Methamphetamine found there from was 75.24% after
allowing a margin of error of 0.94%. The net weight of Methamphetamine found was
3.79g.
[31] 30 Hence the total combined weight of Methamphetamine found was 152.43g,
the amount mentioned in the charge against the accused.
[32] 31 It is of interest to note that PW1 gave evidence that the time taken to
undertake quantitative analysis of the 24 replicate samples was 16 working hours.
This is not taking into account that the reagent and the machines Gas
Chromatography Flame Ionic Detector may not be ready and in good order for it
requires maintenance once the replicate samples exceeds 100.
[33] 32 When cross examined, PW1 disagreed with the learned counsel for the
accused that the amount and weight of samples used to determine that the crystalline
substance contained methamphetamine was insufficient. PW1 stood firmly on his
position that the amount and weight of the representative samples taken at random
was clearly sufficient for the purpose of determining whether the drug
methamphetamine was found in the homogenized powder. Further it was confirmed
by PW1 that the degree of concentration or purity of methamphetamine will not
change even if more samples are used. PW1 even went to the extent to state that
even if the entire contents of the homogenized powder from the crystalline substance
were to be analysed, the degree of concentration or purity of methamphetamine will
remain the same.
[*313]
Analysis and Testing Guidelines for Methamphetamine.
[34] 33 PW1 informed this court that the method of testing methamphetamine
adopted by him is based on the United Nations Manual entitled: ‘ Recommended
Method for Testing Amphetamine and Methamphetamine’. This manual, according to
PW1 is accepted and used by all chemists who are working and dealing with Narcotics
at the Chemistry Department, throughout Malaysia to test the drug
Methamphetamine.
[35] 34 It could therefore be observed that what PW1 had done with the crystalline
substance found was firstly he weighed it and mixed the contents of exhs P10A, P10B,
P10C and P10D together with the help of a Sumeet commercial blender in order to
homogenize the powder so that every part would be the same as the others. He
applied the three colour tests on random and representative samples of the powder by
using three reagents known as Marquis, Simon’s and silver nitrate and found that the
homogenized substance contained Methamphetamine Hydrochloride. The fourth test
carried out involved the use of Gas Chromatography Mass Spectrometry. The outcome
of the analysis using Gas Chromatography Mass Spectrometry confirmed that the
homogeneous powder contained Methamphetamine, a type of dangerous drug listed in
the First Sch of the DDA.
[36] 35 After the existence of the drug Methamphetamine had been confirmed, a
final quantitative test was conducted and this employed the usage of a Gas
Chromatography Flame Ionic Detector on 24 replicates random and representative
samples. From this test PW1 concluded that the degree of concentration or purity of
Methamphetamine was 75.31% after allowing a margin of error of 0.94%. He
concluded further that the crystalline substance found in the four clear plastic bags
P10A, P10B, P10C and P10D contained a net weight of 148.64g of Methamphetamine.
[37] 36 A similar test was done in respect of the contents of the clear plastic bag
found in the red paper envelope B1 exh P13 with a conclusion that the net weight of
Methamphetamine found therein was 3.79g. Hence the total amount of
Methamphetamine under the charge was 152.43g.
[38] 37 It is pertinent to re-emphasise here that the chemist, PW1 pointed out that
the purpose of blending the white crystallized substance was to make it homogenous,
which means, if any part of the powder were to be taken for qualitative or quantitative
analysis; it will produce a similar percentage of concentration of Methamphetamine.
This is what happened in this instant case. It means therefore that even if less than
24 replicate representative and random samples were employed for analysis, the
result would be the same. The converse will also be true in that PW1 gave evidence
that even if the entire samples were analysed, the percentage of concentration or
purity of Methamphetamine will still be similar.
Evidence of other Prosecution Witnesses
[39] 38 PW3, Mr Oh Sen Toh works as a Foreman at Hiap Loong Tyre Shop,
Penampang Towering Centre, Kota Kinabalu. He testified that on 17 April [*314]
2001 the accused came to his work place to do wheel alignment in respect of his car –
Isuzu Invader and not the Suzuki Vitara. After the job was completed he said the
accused paid the money and left the premises. PW3 did not see if the accused
returned to PW3 ’s work place after doing his wheel alignment and he did not see if
the accused brought another car there. He did not see if the accused had taken any
other vehicle to his tyre shop.
[40] 39 The next prosecution witness was the wife of the accused, PW4, Mdm Liew
Chwee Ing, a house wife who has to look after three (3) children. Sometimes she does
a bit of selling through ‘direct selling’. She uses the vehicle: Vitara registration
number SA 8202 L. The accused bought the vehicle.
[41] 40 On 17 April 2001 PW4 used the vehicle at 5.45am to send her child to
school and came back at 6.30am during which time the accused was still asleep in
their house. When she sent her child to school, the child was seated on the
passenger’s seat in front. She did not notice any red plastic bag on the floor of the
passenger’s seat. Her child did not complain that there was any red plastic bag there
as well. The vehicle was parked outside the house in front of the gate which was
always open. She went out for breakfast with the accused at about 9am in the vehicle
Vitara. The accused drove and PW4 sat on the passenger’s seat on the left but she did
not see any red plastic bag on the floor. They went home at about 12 mid-day and
immediately thereafter the accused left the house and used the Vitara. PW4 confirmed
that on 17 April 2001 she did not see any red plastic bag on the floor of the Vitara.
PW4 also testified that after that she did not use the vehicle Vitara.
[42] 41 The last witness for the prosecution was PW5 Chief Inspector Zulfakar bin
Abdul Aziz, the Investigating Officer. He testified that on 17 April 2001 PW2 ASP Fisol
came to his office handing over to him the accused and the relevant exhibits: one red
plastic bag marked AA dated 17 April 2001 containing a white/blue box with the
writing ‘Tape Dispenser’ marked ‘A’. Inside the said box there were four (4) plastic
bags each marked A1, A2, A3 and A4. PW5 was also handed one red paper envelope
marked ‘B’ containing one plastic bag marked B1. PW5 was also handed one vehicle
Suzuki Vitara registration number SA 8202 L together with the keys. Further PW2 also
handed over to him the Police Report (‘P20’), Form CID 47 (‘P21’), lists (‘P22’) and all
the personal items of the accused, exhs P23, P24, P25, P26, P27, P28. All these items
were kept by PW5 under locked cabinet while the accused was sent to the lock up.
Only PW5 had the key to the locked cabinet. Photographs of the relevant exhibits
were taken before PW5 sent them to the Chemistry Department together with form
POL 31 on 19 April 2001.
Court’s Finding after the Conclusion of the Case for the Prosecution
[43] 42 Both the learned deputy public prosecutor and learned counsel for the
accused submitted at the end of the case for the prosecution. Having considered their
submissions and after perusing the authorities offered, this court finds that a prima
facie case has been made out against the accused on the offence charged and under
the provision of s 180(3) of the Criminal [*315] Procedure Code, the accused was
called upon to enter his defence. Three alternatives were notified to the accused that
he could take in his defence:
(i) to testify on oath and subject himself to cross examination;
(ii) to make an unsworn statement from the dock which will not render him
liable to be cross examined;
(iii) to remain silent.
[44] 43 The accused chose to give evidence on oath.
[45] 44 This court will now give the reason why it made a finding that the
prosecution has made out a prima facie case against the accused and called upon him
to enter his defence.
[46] 45 It is obvious that the prosecution’s case was straight forward and was not
contradicted. The evidence of PW2 ASP Fisol bin Salleh on what transpired has been
accepted by the accused through his learned counsel and this is reflected in his
submission at encl 30 which was filed and read in open court. This court therefore
accepts as true and accurate, the narration of PW2 on what had happened on 17 April
2001 at 2.30pm.
[47] 46 The vehicle Suzuki Vitara SA 8202 L is owned by and registered under the
name of the accused. When the police stopped the said vehicle it was the accused
who drove the vehicle. According to PW2, the accused was in a state of shock when
his driver’s door was opened by PW2 who identified himself as a Police Officer by
showing his warrant card. The accused then said ‘Boss kita pergi ke hadapan, kita
boleh cerita’. When the accused was asked by PW2 as to what was inside the red
plastic bag found on the floor of the front left hand side of the passenger’s seat, he
replied: ‘ada sikit barang’. Why did the accused say ‘boss, kita pergi ke hadapan, kita
boleh cerita’? Learned defence counsel said that ‘such words uttered in the Malay
language can also suggest that the accused intends to bribe the police officer, or that
the accused intends to move his car to a better spot to prevent obstruction’. He also
submitted that as there could be many inferences both favourable and unfavourable
the one favouring the accused must be adopted.
[48] 47 It must be appreciated that the police should know better to avoid
unnecessary obstruction. That is the duty of the police and for the accused to suggest
that the words ‘boss, kita pergi ke hadapan, kita boleh cerita’ were uttered to prevent
obstruction is quite unacceptable to this court. The other alternative inference
suggested by learned counsel for the accused that he intends to bribe the police
officer may be the unfavourable inference that he is postulating to. Clearly those
words impute something more than meets the eyes.
[49] 48 The usage of the words ‘ada sikit barang’ by the accused clearly indicate his
knowledge of the impugned red plastic bag found at the floor of the vehicle. He was
alone, he drives the vehicle and he owns the vehicle. The other person, PW4 Mdm
Liew Chwee Ing who has access to the vehicle has got to be excluded from being in
the know about the impugned red plastic [*316] bag as she testified that when they
went home around 12 noon, the accused drove the vehicle. She was seated at the left
hand side of the vehicle on the passenger’s seat. She did not see any red plastic bag
on the floor. Soon after that PW4 testified that the accused left the house using the
said vehicle. He was stopped by the police at 2.30pm the same day where the police
found the impugned red plastic bag containing a white/blue box which in turn
contained four clear plastic bags containing a crystalline substance suspected to be
Methamphetamine. The police also recovered from the vehicle one red paper envelope
inside which was a plastic bag containing a crystalline substance suspected to be
Methamphetamine as well.
[50] 49 Suffice it to say here that the suspicion that the said crystalline substance
was in fact Methamphetamine was confirmed by PW1 following the various tests he
carried out. These tests are done in accordance with the United Nations Manual
entitled ‘ Recommended Method for Testing Amphetamine & Methamphetamine’ which
is being followed by all the chemists working in the Chemistry Department throughout
Malaysia.
[51] 50 The opinion of PW1 is confined to the elementary nature and identity of the
substance. PW1 is essentially an independent expert witness assisting the court to
determine the identity of the impugned substance. It is the considered view of this
court that Government Chemists who work in the Government’s Chemistry
Department are public servants who are obliged to follow certain investigatory
methods and procedures for the analysis of drugs as defined by their Department. The
procedure followed by PW1 in analyzing the alleged drug is in consonance with the
procedure recommended by the United Nations which has been adopted for use by all
the chemists working in the Department of Chemistry throughout Malaysia. Further
the opinion given by the chemist PW1 is basic as it only involved the identification of
the impugned drug.
[52] 51 The crystalline substance found had become a homogenized powder and
PW1 said in no uncertain terms that even if the entire impugned drug was analysed
the outcome will be the same as the outcome from the 24 replicate samples that he
analysed. Further unless the opinion of PW1 is inherently so incredible, this court is
entitled to accept such opinion at face value as true and accurate unless the defence
calls evidence in rebuttal by another expert to contradict PW1 ’s opinion per Mohd
Noor Ahmad JCA (as he then was) in K Saravanan a/l S Karuppiah v Public
Prosecutor [2002] 4 CLJ 144 at p 152 (also [2002] 3 MLJ 465), Munusamy v Public
Prosecutor [1987] 1 MLJ 492, Supreme Court’s decision.
[53] 52 The decision of this court to accept the evidence of PW1 is fortified by the
fact that in Public Prosecutor v Tang Kheng Teong & Anor [1997] 3 MLJ 637 Abdul
Malek Ahmad JCA (as he then was) said: ‘It was incorrect for the judge to reject the
chemist’s evidence for not having complied with the provisions of the Act in
conducting the chemical analysis on the drugs recovered. In regard to the evidence of
the chemists, unless the evidence is so inherently incredible that no reasonable
person can believe it to be true, it should be accepted as prima facie evidence’.
[*317]
[54] 53 The same sentiments have also been expressed in the Court of Appeal
decision in Kesavan a/l Petchayo @ Balakrishnan v Public Prosecutor [2003] 2 MLJ
209, [2003] 1 CLJ 846 where Gopal Sri Ram JCA at p 214 said ‘The evidence
sufficiently establishes beyond a reasonable doubt that for the purpose of analysis, a
sufficient sample was taken of the substance in question in order to establish that it
was indeed heroin and monoacetylmorphine, respectively’.
[55] 54 Learned counsel for the accused offered Loo Kia Meng v Public Prosecutor
[2000] 3 MLJ 664, [2000] 3 CLJ 653 as the authority to say that the chemist has
failed to analyse samples of at least 10% of the substance contained in the
receptacles before concluding that it was drugs. With great respect this court is of the
considered view that Loo Kia Meng is distinguishable from this instant case. In Loo Kia
Meng the appellant was convicted on 15 August 1995 for an offence of trafficking in
4,105g of cannabis. In our instant case the drug found is Methamphetamine. Secondly
the Court of Appeal held in Loo Kia Meng that what the learned judge held was that he
found that the appellant was in custody and control of the two packages therefore the
presumption under s 37(d) of the DDA applies and he was deemed to be in possession
of the cannabis. Having made that finding he then invoked the presumption under s
37(da) of the DDA. In other words he used the presumption of possession under s
37(d) of the DDA to invoke the presumption of trafficking under s 37(da) of the DDA.
Therefore Shaik Daud Ismail JCA held that the learned judge fell into the same error
as the learned judge in Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ
273, [1998] 2 CLJ 170. This is not so in this instant case. Further in Loo Kia Meng the
Court of Appeal held that pursuant to s 37(j) of the DDA, the chemist is required to
give the actual amount or the actual weight of the samples taken in order to comply
with that section. In our instant case what needs to be appreciated is that the
crystalline substance found in the four transparent plastic bags was mixed and
blended turning the contents into a homogenous powder. The actual weight of the
content of each of the plastic bags had been identified and determined and given by
the chemist to this court. Lastly what was more significant is that the chemist took
representative samples at random and has testified positively that the result of his
tests showed that the crystalline substance was Methamphetamine. The chemist went
on to say that since the crystalline substance had been homogenized the amount
tested is sufficient to determine that the drug was Methamphetamine. It was also the
considered view of the chemist that the purpose of blending the white crystallized
substance is to make it homogenous, which means, if any part of the powder were to
be taken for qualitative or quantitative analysis, it will produce a similar percentage of
concentration or purity. The chemist added even if the entire content was tested, the
purity of the Methamphetamine found will be similar and the outcome will be the
same. It is clear that the chemist in this instant case has carried out a detailed
analysis of the impugned substance and he testified positively that the result of his
tests showed clearly that the impugned substance is Methamphetamine, a drug listed
in the First Sch of the DDA.
[*318]
[56] 55 This court is therefore satisfied that the evidence given by the chemist was
satisfactory and cannot be faulted.
[57] 56 The question before this court is whether on the evidence adduced thus far
by the prosecution, it had proven its case against the accused on a prima facie basis.
[58] 57 There exists a plethora of authorities on the meaning of a prima facie case.
Quoting Vincent Ng J in Public Prosecutor v Ong Cheng Heong [1998] 6 MLJ 678,
[1998] 4 CLJ 209, ‘ “Prima facie” means on the face of it or at first glance’ ... . Prima
facie case (is) “A case which is sufficient to call for an answer. While prima facie
evidence is evidence which is sufficient to establish a fact in the absence of any
evidence to the contrary, but is not conclusive”. It would follow that there should be
credible evidence on each and every essential ingredient of the offence. Credible
evidence is evidence which has been filtered and which has gone through the process
of evaluation. Any evidence which is not safe to be acted upon should be rejected’ at
p 691.
[59] 58 Based on what has been discussed above, it was therefore the finding of
this court that the prosecution had made out a prima facie case against the accused
which if it remains unrebutted would warrant a conviction. This finding is based on an
objective assessment of the evidence adduced in this court. The accused was
therefore called upon to enter his defence. As indicated earlier, the accused chose to
give evidence under oath.
Accused’s Defence
[60] 59 The accused is a 43 year old man and worked in the construction business
as a sub-contractor. He is married to PW4 and they have three children. Giving
evidence on oath, the accused told the court that on 17 April 2001, driving the vehicle
Vitara, he arrived at Hiap Loong workshop around 1pm to get the tyre alignment
done. It was during the lunch break and while waiting he received a call from one,
‘Lau Yeh’, who asked the accused to see him regarding some money matters. Without
doing the repair work, the accused drove the vehicle Vitara to Jalan Lintas near the
Taman Ria junction to meet ‘Lau Yeh’.
[61] 60 He saw ‘Lau Yeh’ standing beside a small motorbike: blue coloured Suzuki
and observed that he was hugging his helmet with both hands against his stomach
with the hollow side facing his stomach. As ‘Lau Yeh’ entered his car on the left hand
side of the passenger’s seat, he (‘Lau Yeh’) placed his helmet on the floor of the
vehicle with the hollow part of the helmet facing on to the floor of the front
passenger’s seat.
[62] 61 When ‘Lau Yeh’ entered the car he was sweating and smoking. Though he
was talking normally he looked nervous. He was never like that before and the
accused suggested that it may be because ‘Lau Yeh’ had been waiting too long under
the sun or that he was tired. ‘Lau Yeh’ demanded for payment of money that the
accused owed him.
[*319]
[63] 62 The accused also testified that he had borrowed twice from ‘Lau Yeh’ who is
also a money lender (Ah Long). On the first occasion he borrowed RM50,000 and had
settled the same. On the second occasion, he borrowed RM150,000 and had paid
RM50,000 and the outstanding sum payable by the accused to ‘Lau Yeh’ was
RM100,000.
[64] 63 The accused testified that ‘Lau Yeh’ was in his car talking for about 20
minutes and while inside he took the whole tissue box from the dash board and put it
on his lap to wipe out his sweat.
[65] 64 When ‘Lau Yeh’ left the vehicle, the accused proceeded to Inanam to visit
his site. While driving in front of Choon Nyen Fatt Supermarket Sdn Bhd, Lorong
Inanam Point 2, Inanam his vehicle was stopped by a group of police officers led by
PW2, who conducted a search in the accused’s vehicle. PW2 found a red plastic bag
(exh P7) on the floor of the front passenger’s seat. When exh P7 was opened, PW2
found one blue/white box and inside it PW2 found four clear plastics containing the
offending drugs.
[66] 65 The accused testified that he had no prior knowledge of P7 or its content
except after it being pointed out by the police during the search. He told the court
that was the first time he saw it. He further told the police officers that the impugned
P7 was not his and that he did not know who it belonged to. The accused alleged that
one of the police officers threw the package to the accused and he was asked to keep
quiet. The accused spoke to one of them to ask him whether they can move the car
and talk later because he did not want his vehicle to block the traffic. The police
thereafter pushed the accused’s vehicle to the side and checked his vehicle. He was
asked to sit at the back of the car as they drove to his house at Foh Sang in Kota
Kinabalu. In the car, the accused testified that he informed them that some one had
earlier on left his car but this was ignored. After checking his house, the accused was
brought to Karamunsing (the police station) and detained.
[67] 66 As to the impugned drug found in the red envelope (exh P11) at the
dashboard inside the vehicle, the accused testified he had no knowledge of it and its
contents and claimed that it was shown to him for the first time at the Police Station
at Karamunsing on 18 April 2001 by a police officer. He testified that the said police
officer told him that P11 was found on the dash board of the vehicle, placed under a
tissue box.
[68] 67 The second defence witness was ASP Tan Guan Chai (‘DW2 ’), the then
Head of the Narcotics Departments, at Ibu Pejabat Daerah at Karamunsing, Kota
Kinabalu. DW2 testified that he was the one who took the cautioned statement of the
accused in Mandarin (exh D1) on 19 April 2001 at 2.30pm two days after the date of
arrest. The accused in exhibit D1 absolutely denied any knowledge of the offending
drugs found in the vehicle. He also mentioned to the police officers about ‘Lau Yeh’
the person whom he last met and who had entered and sat in the front passenger
seat of his vehicle just before his arrest on 17 April 2001.
[*320]
[69] 68 The third and last defence witness was Yap Sing Keong (‘DW3 ’). DW3 is
the nephew of the accused in that the accused is the younger brother of his father.
DW3 manages a motorcycle shop at Likas. He also testified that before his arrest, the
accused did mention to him that he owed money from someone and approached DW3
for help as he needed to pay the debt. As the amount was rather large, DW3 could
not afford it and could not assist. The accused had mentioned to DW3 about the ‘Ah
Long’ (money lender) from whom he owed money.
[70] 69 DW3 also testified that when he met the accused three to four times at the
prison and the accused requested him to look for ‘Lau Yeh’. PW3 tried to but was
unsuccessful.
[71] 70 DW3 testified that ‘Lau Yeh’ was his regular customer for a period of three
to four years, and ‘Lau Yeh’ regularly came to his shop to repair his motorcycle.
Despite that, DW3 could not remember the registration plate of ‘Lau Yeh’s motorcycle.
Evaluation of the Evidence of Defence Witnesses
[72] 71 In the examination in chief, the accused, DW1 did testify that he owns two
vehicles, one Isuzu Invader and a Suzuki Vitara. Though he spoke about the loss of
the keys for the Vitara, the confusion, contradictions he created and caused must
have resulted in the learned counsel for the DW1 in rightfully not pursuing this point
in his final submission. Likewise, this court can see no reason to deliberate on it save
to note the credibility of the accused.
[73] 72 What is perhaps pertinent to record is that though PW3 saw the accused
coming to repair the alignment in respect of the Isuzu Invader he did not see the
accused returning to the Tyre shop with the Suzuki Vitara (‘Vitara’).
[74] 73 Any suggestion to say that someone may have put the impugned drug
inside the Vitara after the accused allegedly went to Hiap Loong Tyre shop would not
hold water as during cross examination the accused said when he entered the Vitara
after receiving the phone call from ‘Lau Yeh’ he did not see any red plastic bag or
anything on the passenger’s seat. Therefore at the time he went into the Vitara
heading for Inanam at Hiap Loong Tyre Shop (that is if the accused did go there) exhs
P7 and P8 were not at the respective places as found by the police. It also
strengthened the testimony of PW4 that when she first used the Vitara she did not
notice any red plastic bag, neither did her daughter see anything. This remains true as
when the accused sent PW4 back at about 12 noon, PW4 did not see any plastic bag
on the floor of passenger’s front seat of the Vitara. By one stroke, this evidence ruled
out PW4 may have put the drug inside the Vitara and rules out someone planting the
drug when the accused was inside the office of Hiap Loong Tyre shop to read
newspapers as he alleged.
[*321]
The Existence or Non-existence of ‘Lau Yeh’
[75] 74 In his testimony, the accused said he met ‘Lau Yeh’ and observed in great
detail the manner in which he held his helmet whilst waiting for the accused. The
accused also testified to the court that ‘Lau Yeh’ hugged his helmet with both hands
against his stomach with the hollow side facing his stomach. Further, the accused
observed the manner the helmet was placed on the floor of the vehicle. But despite
being so observant, after ‘Lau Yeh’ left his vehicle the accused did not see any red
plastic bag on the floor of passenger’s seat. During cross examination, the accused
testified and marked in a photograph produced in the court the location of the exhibit
P7 and it is obvious that there was nothing blocking his vision! The fact that the
plastic bag was red in colour would make it easily noticeable. Upon being stopped at
Inanam by PW2 and his men, the accused said in his cautioned statement (exh D1)
from line 32 to 44:
‘Apabila saya berada di kawasan berdekatan dengan Maybank (sic)

Finance, saya telah ditahan oleh beberapa orang yang tidak dikenali.
Mereka memperkenalkan diri mereka sebagai polis dan ingin membuat
pemeriksaan. Mereka terus buka pintu kereta saya membuat pemeriksaan
dan terus juga menjumpai satu beg plastik warna merah yang berisi
satu kotak warna biru/putih yang mengandungi beberapa bungkusan plastik
berisi bahan-bahan hablur putih di kiri tempat duduk saya.’ (Emphasis
added.)
[76] 75 It is obvious therefore that exh P7 was there all along when the accused
was on the way to Inanam because in his evidence as well as his cautioned statement,
the accused said after ‘Lau Yeh’ left his car, he went straight to Inanam. This is
another instance when the accused chose not to tell the truth.
[77] 76 Another instance is that during examination in chief the accused testified
that ‘Lau Yeh’ was in his car for 20 minutes and when he was cross examined he said
‘Lau Yeh’ was with him for 10 minutes.
[78] 77 The accused also failed to testify if he did or did not say: ‘ada sikit barang’,
when he was asked by PW2 upon the discovery of P7 in his vehicle.
[79] 78 The accused also denied knowledge of the existence of exh P11 and said in
his evidence in chief that he was first shown P11 on 18 April 2001, one day after his
arrest at the Karamunsing Police Station. However in his cautioned statement (D1) at
p 4 line 62 he was asked thus:
‘Ada apa-apa barang yang lain dijumpai selain dari bungkusan barang
yang terletak di bawah tempat duduk penumpang itu?’
[80] His reply from line 65 of p 4 to line 3 of p 5 (D1) which says:
‘Ada suatu bungkusan yang kecil lagi dijumpai di atas ‘Dashboard’. Saya
bertanya lagi kepada polis yang membuat pemeriksaan apa itu barang.’
(Emphasis added.)
[81] 79 The reply given here indicates clearly that P11 was found when the police
searched the vehicle and not the day following the arrest.
[*322]
[82] 80 So much about the impugned P7 and P11. What about ‘Lau Yeh’? Does he
exist or not? It was said that ‘Lau Yeh’ was a ‘loan shark’ and the accused still owed
him RM100,000. ‘Lau Yeh’ was also the person the accused was alleged to be with
when the accused lost his Vitara key. He was also the person who came into the
vehicle of the accused when the accused was on the way to Inanam. He was nervous
and sweating and sat on the front passenger’s seat and smoking at the same time. It
was ‘Lau Yeh’ who pressed the accused for the payment of money owed. The accused
knew him for one year plus but his name was not known to the accused.
[83] 81 Despite the fact that the accused has not paid the amount of RM100,000
the accused gave evidence that his wife and family has never been harassed by ‘Lau
Yeh’ and said that his wife told him that nobody ever came for the debt. The loan
given by the ‘loan shark’ ‘Lau Yeh’ is interest free. Furthermore there was no loan
agreement and no security for the loan.
[84] 82 The accused also claimed that ‘Lau Yeh’ is in Kuala Lumpur but the police
were never notified about this fact. But why was ‘Lau Yeh’ not produced in court?
[85] 83 As regards the motorcycle plate number of SA 4019 allegedly owned by

‘Lau Yeh’ as mentioned in his cautioned statement, the accused said he was not sure
of the number. When told by the learned deputy public prosecutor that SA 4019 is
the registered number of a lorry registered in the name of Lembaga Letrik Sabah, the
accused said that he was not sure if the ending alphabet was A, B or C and said that it
is the combination of the above mentioned four numbers.
[86] 84 The testimony of DW3 about ‘Lau Yeh’ was not helpful either. DW3 testified
that ‘Lau Yeh’ was his regular customer for the last three to four years. In fact six
months after the accused was arrested ‘Lau Yeh’ still came to see DW3 to repair his
motorcycle. Despite being a regular customer, DW3 never knew the real name of ‘Lau
Yeh’. Further, DW3 testified that he does not know the motorcycle registration plate
number of ‘Lau Yeh’!!!
[87] 85 What is obvious from the testimonies of the accused and DW3 is that
though they both know ‘Lau Yeh’, his real name is not known. ‘Lau Yeh’ is a ‘loan
shark’ yet there is no interest on the loan of RM100,000. More surprising is that there
is no loan agreement and neither was there any security offered for the loan. Both
witnesses also failed to provide the place where ‘Lau Yeh’ could be found. The accused
said that ‘Lau Yeh’ is in Kuala Lumpur and DW3 said that ‘Lau Yeh’ is from Seremban.
That being the case, why was ‘Lau Yeh’ not called by them to give evidence in court if
‘Lau Yeh’ really existed. Even the simple thing like the registration plate number of
‘Lau Yeh’s’ motorcycle could not be provided by them. The number given by the
accused was the registration number of Lembaga Letrik Sabah. In the case of DW3,
despite the fact that ‘Lau Yeh’ is a regular client of his for a period of three to four
years, he does not know the plate number either. DW3 is involved in the ‘business’ of
motorcycles as his business is the selling of motorcycles. It is quite incredible, despite
the industry or business that he is in and the [*323] fact that he claims ‘Lau Yeh’ to
be his regular client for three to four years, that DW3 cannot remember the
registration number of ‘Lau Yeh’s’ motorcycle if ‘Lau Yeh’ does exist and is not a
fictitious character introduced to create a plausible story in order to escape
punishment. It is the view of this court therefore that ‘Lau Yeh’ is only a fictitious
character.
[88] 86 On the testimony of DW3, this court has to be cautious as the deputy
public prosecutor told this court that DW3 was inside this court following the
proceedings during the prosecution stage. He is also an interested party as the
accused is his uncle.
[89] 87 This court is not satisfied with the manner in which both the accused and
DW3 answered the questions put to them by the learned deputy. Their demeanour
and their way of responding to the questions posed by the learned deputy give rise to
the doubt that this court has as to their credibility. This court has great reservations
as to whether both the accused and DW3 are truthful witnesses.
Was the Accused in Possession of the Impugned Drug?
[90] 88 In the cautioned statement (D1) of the accused that he made on 19 April
2001, two days after he was arrested, he said of the police team led by PW2, after his
car was stopped at Inanam: ‘Mereka terus buka pintu kereta saya membuat
pemeriksaan dan terus menjumpai satu beg plastik warna merah mengandungi
beberapa paket bungkusan plastik berisi bahan-bahan hablur putih di tepi tempat
duduk penumpang di sebelah kiri tempat duduk saya’. (Emphasis added.)
[91] 89 At p 4 line 65 and p 5 lines 1 to 3 of D1 the accused said: ‘ Ada suatu

bungkusan yang kecil lagi dijumpai di atas “Dashboard” ’.
[92] 90 This shows that when the vehicle in which the accused was driving was
stopped, the impugned drug was in his vehicle. He was alone in control of the car.
[93] 91 The accused wife (‘PW4 ’) who had earlier on used the vehicle testified that
when she was sent home at 12 noon by the accused using this vehicle, she said she
sat on the passenger’s left front seat. She did not see any red plastic bag on the floor
of the vehicle. The accused left the house in the same car, going as he claimed to the
Hiap Loong Tyre Shop at Penampang Towering Centre, Kota Kinabalu. The accused
also gave evidence that when he left the tyre shop responding to the call of ‘Lau Yeh’,
he did not see anything on or near the passenger’s seat on the front left hand side of
the vehicle. From there he allegedly went to see ‘Lau Yeh’. After about 20 minutes
with ‘Lau Yeh’ he headed for Inanam where he was stopped by PW2.
[94] 92 This court is well aware that the following ingredients must be proved
beyond any reasonable doubt by the prosecution:
(a) The accused was in possession of the drug in that:
(i) he had some form of custody and control;
(ii) he had knowledge of the drug.
(b) The said drug is a dangerous drug under DDA and the weight of such drug
should be 50g or more.
[95] 93 On the facts of the case and based on the arguments outlined above, this
court agrees with the learned deputy public prosecutor that the accused had
physical control of the impugned drugs.
[96] 94 This court has also examined the authorities at encll 31, 33 and other
supplementary authorities given by learned counsel for the accused which includes,
inter alia Chan Pean Leon v Public Prosecutor [1956] MLJ 237 at p 239, Leow
Nghee Lim v Reg [1956] MLJ 28 at p 29 and Tong Peng Hong v Public Prosecutor
[1955] MLJ 232. In Wong Nam Loi v Public Prosecutor [1997] 3 MLJ 795, Shaik
Daud JCA (as he then was) said ‘In most cases knowledge cannot be adduced by
direct or tangible evidence but only by inference from the surrounding circumstances’.
It can readily be recognized that in drug cases it is difficult to get direct evidence. The
modus operandi of drug traffickers has become more sophisticated but let us examine
the conduct of the accused. The evidence established is that the accused was seen to
be driving slowly in a busy street at Inanam. When the accused was stopped at
Inanam, he was in a state of shock. He asked PW2: ‘Boss, kita pergi ke hadapan, kita
boleh cerita’ and when the impugned drug was found the accused was asked as to
what it was, he was heard to utter the words ‘Ada sikit barang’. It is the view of this
court that from the above mentioned surrounding circumstances the irresistible
inference is that the accused must have had knowledge of the impugned drugs inside
the red plastic bag as well as the red paper envelope at the dashboard on the left
front side of the vehicle.
[97] 95 Applying the facts of this case, which has been discussed earlier, on the
authorities offered, this court can only make one finding. This court finds that the
accused has possession of the impugned drug in the vehicle Suzuki Vitara.
Chain of Evidence
[98] 96 It is the considered view of this court there was no break in the chain of
evidence from the time the arrest was made on the accused until the alleged
methamphetamine reached the chemist and lastly produced in this court.
Amount of the Drug Methamphetamine Found
[99] 97 PW1, the chemist, has testified that following the tests that he conducted
based on the existing Recommended Method for Testing Amphetamine and
Methamphetamine by the United Nations, the impugned drug found in the vehicle was
Methamphetamine. No evidence was adduced by the defence to dispute this finding.
The defence did not call any other chemist or other [*324] expert to challenge the
procedure and method used by PW1 in analyzing Methamphetamine. The net weight
of Methamphetamine found in exhs P10A, P10B, P10C and P10D was 148.64g. This
figure of 148.64g exceeds the ‘50g’ envisaged under s 37(da)(xvi) of the DDA. On this
figure alone, the accused shall be presumed until the contrary is proved, to be
trafficking in the said drug. The contrary was never proved.
[100] 98 If the figures of 148.64g were to be added with the contents of P11 which
PW1 gave as 3.79g of Methamphetamine, then the grand total of Methamphetamine
found is 152.43g, the amount mentioned in the charge.
[101] 99 After careful examination and evaluation of the evidence in its entirety,
and after perusal of all the authorities filed into this court, there is overwhelming
evidence to show that the prosecution has proved its case beyond any reasonable
doubt and that the defence failed to raise any reasonable doubt on the prosecution
case.
[102] 100 This court therefore finds that the accused is guilty of the offence
charged and hereby convicts him. The sentence under s 39B(2) of the DDA is
mandatory. This court therefore sentences him to death. Pursuant to s 277 of the
Criminal Procedure Code, this court directs that he be hanged by the neck till he is
dead.
[103] 101 It is further ordered that the exhibits which are in police custody shall
remain there for safe keeping until after the final disposal of appeal to the highest
appellate body and may only be dealt with in accordance with the law after the final
decision of the highest appellate body has been made.
ORDER:
Accused found guilty, convicted of trafficking and death sentence imposed..
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PUBLIC PROSECUTOR v REZA MOHD SHAH BIN AHMAD SHAH
[2002] 4 MLJ 13
CRIMINAL TRIAL NO 45–10 OF 2001
HIGH COURT (KUALA LUMPUR)
DECIDED-DATE-1: 27 AUGUST 2002
AUGUSTINE PAUL J
CATCHWORDS:
Criminal Law - Dangerous drugs - Trafficking - Presumption - Possession of dangerous
drugs - Whether there was evidence to show that the accused had possession of the
drugs by merely holding a bag containing the drugs - Whether prosecution had made
out a prima facie case and proved its case beyond reasonable doubt against the
accused - Dangerous Drugs Act 1952 s 37(da)
HEADNOTES:
The accused was charged with an offence of trafficking in dangerous drugs. He
claimed trial to the charge. Briefly stated, the facts of the case was that on 14 August
2000, Inspector Mohamad Alpiyang bin Ali (‘PW2 ’) led a party of police to a reserve
land near the railway track at Pantai Dalam, Kuala Lumpur. They stationed
themselves near some squatter houses there. PW2 said that they observed the
accused walking suspiciously from the railway track towards them. He saw the
accused carrying a plastic bag (‘exh P3’) in his right hand. The accused was about ten
metres away at that time. There was no one else there. The accused tried to enter the
reserve land through a hole in a fence, which separated the reserve land from the
railway track. PW2 shouted ‘Police’ at the accused that was then about three metres
away from him. The accused ran immediately and threw the bag that he was carrying.
PW2 took possession of the bag from where it was thrown. The accused contended
that mere holding of exh P3 did not mean that he was trafficking in it. In any event,
the accused said that he was not in possession of exh P3 as it had been put to PW2
that the accused was not carrying it. He also said that the credibility of PW2 was
questionable, as he had said that he had initialled the exhibits before handing them to
PW5 while PW5 had said that the exhibits were initialled in his presence.
Held, convicting the accused:

(1) In his evidence, PW2 said that he handed over the exhibits to PW5 after
he had placed markings on them. On the other hand, PW5 said that the
exhibits were marked by PW2 in his presence. The court agreed that
there was a contradiction. However, it did not cast any doubt in the
chain of custody of the exhibits from the time they were seized until
they were produced in court. What was produced in court was what was
seized at the scene. In fact, none of the witnesses was cross-examined
on the issue. In the circumstances, the difference in the evidence in
this area was not material and did not affect the substance of the
testimony of PW2 (see p 18D –F).
(2) The court is entitled to infer knowledge on the part of a person on the
assumption that such a person has the ordinary understanding expected
of him. The court is not concerned with the knowledge [*14] of a
reasonable man but with reasonable inferences to be drawn from a
situation. There are many circumstances from which knowledge can be
inferred. One instance is the inference to be drawn from the act of a
person in absconding or fleeing from the scene of a crime (see p 20B –C).
(3) The fact that the accused was carrying exh P3 with its contents
followed by the speed at which he ran and threw it upon being
confronted showed that there was a clear nexus between his conduct and
the offence in question. He wanted to part possession with what
constituted the offence. It was a clear indication of his guilty mind.
This was sufficient to infer that the accused had knowledge of the
existence of the dangerous drugs in exh P3. As the cannabis weighed
more than 200g, the presumption contained in s 37(da) of the Dangerous
Drugs Act 1952 must therefore be invoked. The accused was thus presumed
to have been trafficking in the drugs. This meant that the prosecution
had made out a prime facie case against the accused (see pp 23B –C, 24G).
(4) In the circumstances and judged against the background of the facts of
the case, the court was unable to accept the defence advanced by the
accused. He had therefore not succeeded in rebutting the presumption
raised against him. Neither had he raised any reasonable doubt to show
that he was not in possession of exh P3 at the material time. The court
was therefore satisfied that the prosecution had proved its case
against the accused beyond reasonable doubt. Accordingly, the court
found him guilty and sentenced him to death (see pp 25H –26A).
Bahasa Malaysia summary

Tertuduh dipertuduh dengan kesalahan mengedar dadah berbahaya. Dia menuntut
perbicaraan terhadap pertuduhan. Secara ringkas, fakta kes adalah bahawa pada 14
Ogos 2000, Inspektor Mohamad Alpiyang bin Ali (‘SP2 ’) telah mengetuai sepasukan
polis ke tanah rizab berhampiran lintasan jalan keretapi di Pantai Dalam, Kuala
Lumpur. Mereka mengambil kedudukan berhampiran beberapa rumah setinggan di
sana. SP2 berkata bahawa mereka memerhati tertuduh berjalan dalam cara yang
membangkit rasa syak wasangka dari lintasan jalan keretapi menuju ke arah mereka.
Beliau nampak tertuduh membawa suatu beg plastik (‘eksh P3’) dengan tangan
kanannya. Tertuduh berada kira-kira sepuluh meter darinya pada masa itu. Tiada
orang lain di sana. Tertuduh cuba memasuki tanah rizab melalui satu lubang dalam
pagar, yang mengasingkan tanah rizab daripada lintasan jalan keretapi. SP2 menjerit
‘Polis’ kepada tertuduh yang berada kira-kira tiga meter darinya. Tertuduh terus lari
dan mencampak beg yang dibawanya. SP2 memperolehi beg itu dari tempat ia
dibuang. Tertuduh berhujah bahawa memegang eksh P3 semata-mata tidak
bermakna bahawa ia mengedarnya. Walau [*15] bagaimanapun, tertuduh berkata
bahawa ia tidak memiliki eksh P3 kerana ia dikemukakan kepada SP2 bahawa
tertuduh tidak membawanya. Ia juga berkata bahawa kebolehpercayaan SP2
diragukan, kerana ia telah mengatakan bahawa dialah orang yang menanda dengan
nama singkatan nama sendiri ekshibit-ekshibit sebelum menyerahkannya kepada SP5
manakala SP5 berkata bahawa ekshibit-ekshibit tersebut telah ditanda dengan
singkatan nama dalam kehadirannya.
Diputuskan, menyabitkan tertuduh:

(1) Dalam keterangannya, SP2 berkata bahawa beliau telah menyerah
ekshibit-ekshibit kepada SP5 setelah beliau meletak tanda-tanda pada
mereka. Sebaliknya SP5 berkata bahawa ekshibit-ekshibit telah ditanda
oleh SP2 dalam kehadirannya. Mahkamah bersetuju bahawa ini merupakan
satu percanggahan. Namun demikian, ia tidak mewujudkan apa-apa keraguan
dalam rangkai kawalan ekshibit dari masa mereka dirampas sehinggalah
masa dikemukakan di mahkamah. Apa yang dikemukakan di mahkamah
merupakan benda yang dirampas di tempat kejadian. Pada hakikatnya,
tidak seorang pun daripada saksi diperiksa balas atas isu ini. Dalam
keadaan ini, perbezaan dalam keterangan dalam perkara ini tidak
material dan tidak menjejaskan dasar keterangan SP2 (lihat ms 18D –F).
(2) Mahkamah berhak membuat inferens pengetahuan terhadap pihak seseorang
atas anggapan bahawa orang demikian memiliki kefahaman biasa yang
dijangkakan. Mahkamah tidak mengendahkan pengetahuan seorang munasabah
tetapi dengan inferens munasabah yang boleh dibuat dari sesuatu
keadaan. Pelbagai keadaan wujud dari mana pengetahuan boleh dibuat
inferens. Satu contoh adalah inferens yang boleh dibuat dari perbuatan
seseorang dalam melarikan diri dari tempat kejadian jenayah (lihat ms
20B –C).
(3) Hakikat bahawa tertuduh membawa eksh P3 dengan kandungannya disusuli
dengan kelajuan yang mana ia lari dan mencampakkannya apabila bersemuka
menunjukkan bahawa wujudnya perkaitan yang nyata di antara kelakuannya
dan kesalahan berkenaan. Ia ingin berpisah dengan apa yang membentuk
kesalahan tersebut. Ini jelas menunjukkan keadaan salah mindanya. Ini
adalah mencukupi untuk membuat inferens bahawa tertuduh tahu tentang
kewujudan dadah berbahaya dalam eksh P3. Oleh kerana berat kanabis
melebihi 200g, anggapan yang termaktub dalam s 37(da) Akta Dadah
Berbahaya 1952 dengan itu mestilah timbul. Justeru itu, tertuduh
dianggap telah mengedar dadah itu. Ini bermakna bahawa pihak pendakwaan
telah membukti satu kes prima facie terhadap tertuduh (lihat ms 23B –C,
24G).
[*16]
(4) Dalam keadaan demikian dan dilihat berdasarkan latar belakang
fakta-fakta kes, mahkamah tidak boleh menerima pembelaan yang
dibentangkan oleh tertuduh. Dengan itu, ia tidak berjaya menyangkal
anggapan yang dibangkitkan terhadapnya. Dia tidak juga membangkitkan
apa-apa keraguan munasabah untuk menunjukkan bahawa ia tidak memiliki
eksh P3 pada masa material. Maka mahkamah puas hati bahawa pihak
pendakwaan telah membukti kesnya terhadap tertuduh melampaui keraguan
munasabah. Oleh itu, mahkamah mendapatinya bersalah dan menjatuhkan
hukuman mati (lihat ms 25H –26A).]
Notes
For cases on Dangerous Drugs Act 1952 s 37(da), see 4 Mallal’s Digest (4th Ed, 200
Cases referred to
Abdullah Zawawi bin Yusoff v PP [1993] 3 MLJ 1
Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209
Chan Pean Leon v PP [1956] MLJ 237
Chan Kwok Keung & Anor v The Queen [1990] 1 CLJ 411
Director of Public Prosecutions v Wishart Brooks [1974] AC 862
Mohamed Ali v PP [1962] MLJ 230
Neo Koon Cheo v R [1959] MLJ 47
PP v Badrulsham bin Baharom [1988] 2 MLJ 585
PP v Chia Leong Foo [2000] 6 MLJ 705
PP v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1
PP v Letchumanan [2000] 4 MLJ 449
PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401
PP v Phua Keng Tong [1988] 2 MLJ 279
Dangerous Drugs Act 1952 s 37(da)
Appeal from
Arrest Case No B81–22 of 2000 (Magistrate’s Court, Kuala Lumpur)
Azhar bin Abdul Hamid (Deputy Public Prosecutor, AG’s Chambers) for the
prosecution.
Ameenuddin Ibrahim ( Ameen & Co) for the accused.
AUGUSTINE PAUL J::
[1] The accused was charged with an offence of trafficking in dangerous drugs in the
following terms:
Bahawa kamu pada 14 Ogos 2000 jam lebih kurang 12.15 tengahari, di
kawasan tanah rezab jalan keretapi, Jalan Pantai Dalam, Brickfields,
Kuala Lumpur, Wilayah Persekutuan telah mengedar dadah berbahaya iaitu
795.3g kanabis dan oleh yang demikian kamu telah melakukan satu
kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh
dihukum di bawah s 39B(2) Akta yang sama.
[*17]
[2] He claimed trial to the charge. Briefly stated, the facts of the case are that on 14
August 2000, Inspector Mohamad Alpiyang bin Ali (‘PW2 ’) led a party of police
officers consisting of detectives Abdul Halim bin Hj Man, Razak bin Abdul Majid and
Manokaran to a reserve land near the railway track at Pantai Dalam, Kuala Lumpur.
They stationed themselves in the vicinity of some squatter houses there. PW2 said
that they observed the accused walking suspiciously from the railway track towards
them. He saw the accused carrying a plastic bag (‘exh P3’) in his right hand. The
accused was about ten metres away at that time. There was no one else there. The
accused tried to enter the reserve land through a hole in a fence which separated the
reserve land from the railway track. PW2 shouted ‘Police’ at the accused who was
then about three metres away from him. The accused ran immediately and threw the
bag that he was carrying. PW2 took possession of the bag from where it was thrown.
He said that he is sure that it is the bag that the accused threw. Detective Abdul
Halim bin Hj Man chased the accused, arrested him and brought him to PW2. PW2
opened the bag. As he then said:
Hasil pemeriksaan beg plastik itu yang saya jalankan di dalamnya

terdapat dua bungkusan keratan akhbar. Setiap satu bungkusan dibungkus
dengan tiga helaian keratan akhbar. Di dalamnya terdapat satu bungkusan
plastik yang berisi tumbuhan-tumbuhan kering yang saya syaki dadah
ganja.
Saya telah mengarahkan Det/Sjn Halim untuk menggari suspek dan jalankan
pemeriksaan ke atas badannya. Tiada barang salah lain yang dijumpai.
[3] The accused and the exhibits were then brought to the Brickfields Police Station.
The two packets containing what was suspected to be dangerous drugs were marked
as exhs P6 and P7. In his cross-examination, PW2 disagreed that the accused was not
carrying exh P3. He also denied that he did not make any observation as testified by
him. He then said:
Semasa mengenalkan diri sebagai polis, saya berada di kawasan sampah

yang terbakar. Saya setuju ada banyak sampah di tempat itu. Apabila OKT
hendak melarikan diri beliau terus melepaskan beg plastik tersebut.
Saya tidak setuju saya tidak boleh nampak OKT lepaskan beg plastik. OKT
membuang beg plastik di tepi pagar. Tidak benar OKT ditangkap oleh Sjn
Halim dan selepas ditangkap dibawa ke tempat itu untuk cari sesuatu.
Tidak benar OKT dipukul oleh Sjn Halim. Saya tidak setuju OKT tidak
berlari dan tidak buang beg plastik.
[4] In his re-examination PW2 said:
Apabila saya nampak tertuduh melepaskan beg plastik itu pandangan saya
tidak terlindung oleh pagar atau pun semak. (Saksi dirujuk kepada
ID10A) Pandangan saya dari sini ke landasan keretapi tidak terlindung.
Tidak ada tandas di kawasan itu. Sjn Halim tangkap OKT dalam kawasan E
di ID8. OKT tiada dipukul.
[5] Chong Yong Kiong (‘PW4 ’) is a chemist attached to the Chemistry Department,
Petaling Jaya. He analyzed the contents of exhs P6 and P7 and found them to contain
795.3g of cannabis as defined in s 2 of the Dangerous Drugs Act 1952. Inspector
Benedictson Avina ak Jekes (‘PW5 ’) and [*18] Inspector R Azizan bin Ibrahim (‘PW1
’) testified on the custody of the exhibits after they were handed over to them.
[6] In his submission at the close of the case for the prosecution, learned counsel
for the accused contended that merely because the accused was holding exh P3 does
not mean that he was trafficking in it. In any event, he said, the accused was not in
possession of exh P3 as it had been put to PW2 that the accused was not carrying it.
He also said that the credibility of PW2 is questionable as he had said that he had
initialled the exhibits before handing them to PW5 while PW5 had said that they were
initialled in his presence. He also said that the direction from which the accused
allegedly came meant that PW2 could not have seen him clearly because of the
undergrowth. In his submission, the learned deputy public prosecutor said that the
contradiction with regard to the marking of the exhibits is not material. He said that
the fact the accused was carrying exh P3 for some distance meant that he had
custody of it. The accused’s knowledge of the contents of exh P3 is established by the
acts of the accused in dropping it and running away. Hence, the learned deputy
public prosecutor said, there is direct evidence of possession. He then said that as
the cannabis weighed more than 200g, the presumption of trafficking is triggered.
[7] I shall first deal with the credibility of PW2 in relation to the different points of
time at which he had initialled the exhibits. In his evidence, PW2 said that he handed
over the exhibits to PW5 after he had placed markings on them. On the other hand,
PW5 said that the exhibits were marked by PW2 in his presence. I agree that this is a
contradiction. But it does not cast any doubt in the chain of custody of the exhibits
from the time they were seized till they were produced in court. What was produced in
court is what was seized at the scene. As a matter of fact none of the witnesses were
cross-examined on this issue. In the circumstances, it is my view that the difference
in the evidence in this area is not material and does not affect the substance of the
testimony of PW2. The submission by learned counsel that the accused was not in
possession of exh P3 as it had been put to PW2 that the accused was not carrying it
cannot be sustained. As I said in Public Prosecutor v Dato’ Seri Anwar bin Ibrahim
(No 3) [1999] 2 MLJ 1 at p 121:
A suggestion in cross-examination can only be indicative of the case

put forward or the stand taken by the party on whose behalf the
cross-examination is being conducted, but to no extent whatsoever can
it be a substitute for evidence if it is clearly repudiated by the
witness to whom it is made. In this regard, it was observed in
Emperor v Karimuddi Sheikh 1932 AIR Cal 375:
‘Mere suggestions by a pleader or advocate for the accused do not

amount to evidence of the fact suggested, unless they are either
partly or wholly accepted by the witness for the prosecution.’
[8] As PW2 had denied the suggestion put to him, it cannot be considered as
evidence at this stage. It is only an indication of the defence to be advanced by the
accused. The further submission that PW2 could not have seen the accused clearly is
negatived by his evidence that he did in fact see the accused clearly. In the
circumstances, I am unable to hold that the credibility of PW2 is questionable. On the
contrary, his evidence is credible.
[*19]
[9] It is now appropriate to consider whether the prosecution had made out a prime
facie case against the accused. On the facts of this case, the prosecution must
establish that the accused was in possession of the dangerous drugs before the issue
of trafficking in them can arise for consideration. In order to prove possession, the
prosecution must show that the accused had custody or control of the dangerous
drugs and that he had the required knowledge of the thing possessed. Custody or
control can be proved by direct evidence or by drawing inferences from proved facts.
As I said in Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705 in reliance on
cases such as Chan Pean Leon v Public Prosecutor [1956] MLJ 237, Public
Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 and Public Prosecutor v
Phua Keng Tong [1988] 2 MLJ 279, proof of knowledge is very often a matter of
inference. The inference can be drawn from proved facts or as provided by law. In
Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705, I expressed the view that
every effort must be made to prove knowledge by direct evidence before resort can
be had to a presumption provided by law. In support, I refer to Mohamed Ali v Public
Prosecutor [1962] MLJ 230 where Ong J (as he then was) said at p 232:
Presumptions of fact must not be drawn automatically, or as it were, by

rule of thumb, without first considering whether in the circumstances
of each particular case there were adequate grounds to justify any
presumption being raised. Even, with regard to presumptions of law,
Devlin LJ said recently in Berry v British Transport Commission
[1961] 3 WLR 450, 463:
‘ … Presumptions of law ought to be used only where their use is

strictly necessary for the ends of justice. They are inherently
undesirable — in the sense that ‘estoppels are odious’, and the ‘
doctrine’ should never be applied without a necessity for it’;
per Bramwell LJ Baxendale v Bennett (1878) 3 QBD 525, at p
529 — because they prevent the court from ascertaining the truth,
which should be the prime object of a judicial investigation, and
because if they are allowed to multiply to excess, the law will
become divorced from reality and will live among fantasies of its
own.’
[10] With regard to proof of knowledge from facts that have been established,
I consider it necessary to repeat what Thean J (as he then was) said in Public
Prosecutor v Phua Keng Tong [1986] 2 MLJ 279 at p 286:
However, in this case, like in many others, proof of knowledge or

belief on the part of an accused is a matter of inference from facts.
In the case of RCA Corp v Custom Cleared Sales Pty Ltd (1978) FSR
576; 19 ALR 123, the Court of Appeal in New South Wales in dealing with
the question of knowledge of infringement of copyright said at p 478, ‘
Except where a party’s own statements or gestures are relied upon,
proof of knowledge is always a matter of inference, and the material
from which the inference of the existence of actual knowledge can be
inferred varies infinitely from case to case.’
And the court further said, at p 579:
‘It seems to us that the principle is more accurately put by

saying that a court is entitled to infer knowledge on the part of
a particular person on the assumption that such a person has the
ordinary understanding expected of persons in his line of
business, unless by his or other evidence it is convinced
otherwise. In other words, the true position is that the
[*20] court is not concerned with the knowledge of a
reasonable man but is concerned with reasonable inferences to be
drawn from a concrete situation as disclosed in the evidence as
it affects the particular person whose knowledge is in issue. In
inferring knowledge, a court is entitled to approach the matter
in two stages; where opportunities for knowledge on the part of
the particular person are proved and there is nothing to indicate
that there are obstacles to the particular person acquiring the
relevant knowledge, there is some evidence from which the court
can conclude that such person has knowledge.’
[11] Thus, in drawing inferences from proved facts, the court is entitled to infer
knowledge on the part of a person on the assumption that such a person has the
ordinary understanding expected of him. The court is not concerned with the
knowledge of a reasonable man but with reasonable inferences to be drawn from a
situation. There are many circumstances from which knowledge can be inferred. One
instance is the inference to be drawn from the act of a person in absconding or fleeing
from the scene of a crime. In dealing with this issue, I said in Public Prosecutor v
Chia Leong Foo [2000] 6 MLJ 705 at pp 721-722:
A typical example of such conduct is the absconding or flight of a

person after the commission of an offence. But evidence of mere
absconding or flight is not such a vital circumstance which can be
considered to show that the absconder was having any guilty mind (see
Bhagat Bahadur v State (1996) Cri LJ 2201). Such conduct must be
considered in the totality of the evidence adduced (see Mansor bin
Mohd Rashid’s case). For it to be capable of amounting to an
admission of guilt there must be a nexus between his conduct, his
flight and the offence in question. As Lord Ackner said in Chan Kwok
Keung & Anor v The Queen (1990) 1 CLJ 411 at p 413:
‘It is common ground that conduct, and in particular the flight

of an accused after an offence has been committed, may be
tantamount to an admission by him of his guilt of that offence
and as such admissible evidence. Their Lordships’ attention was
invited by Mr Duckett QC on behalf of the crown to a number of
Australian authorities which illustrate this proposition. But
each case must depend on its own particular facts. In those cases
to which their Lordships were referred, the flight of the accused
had occurred within a short space of time of the offence being
committed and in circumstances which clearly connected the
accused with the offence.
In this case the appellants were found stowed away nearly ten
months after the commission of the crime. The prosecution led no
evidence to suggest that they had been in hiding for all or any
part of this period. Indeed there was no evidence as to whether
any and if so what efforts had been made by the police to find
them and with what result. Leung, in his statement to the police
after his arrest, gave them some information as to where the
appellants were living or working, but no evidence was given as
to whether these leads were followed up and if so with what
result. It would in their Lordships’ opinion be quite wrong for
the jury to have taken it for granted that the appellants, during
all or any part of this relatively lengthy period, had been
evading capture for this offence. That was not the case as
presented by the prosecution, and very appropriately the judge in
his summing-up never suggested to the jury that they were
entitled to make such an assumption.
[*21]
In order for flight to be capable of amounting to an admission of

guilt there must be some evidence which establishes a nexus
between the conduct of the accused, his flight or concealment and
the offence in question. In this case the prosecution produced no
evidence to establish that either of the appellants had been
hiding away or otherwise behaving in an unusual manner to this
period of nearly ten months. There was therefore no material
which could have justified the jury inferring that the only
reasonable explanation for the appellants stowing away on the
ship from Hong Kong to Macau was that they were on the run,
because they knew they might be arrested and charged with this
murder. There could have been a variety of other reasons for
their having stowed away nearly ten months after the murder.’
Evidence of such conduct can be explained away by the accused as

provided by s 9 of the Evidence Act 1950 (see Ling Ngan Liong v PP
[1964] MLJ 20; Choo Chang Teik & Anor v PP [1991] 3 MLJ
423). However, the onus is on the accused to explain his conduct. Thus,
in Mansor bin Mohd Rashid’s case, the Federal Court held that the
intention of the accused persons to flee, when considered in the light
of the evidence adduced, justifiably necessitated some explanation from
them. A failure to put forward any explanation of absconding after the
occurrence of a crime is a point in favour of the prosecution (see
Parmeshwar v R AIR 1941 Orissa 517).
[12] The manner of proving knowledge by drawing inferences can be seen in cases
such as Director of Public Prosecutions v Wishart Brooks [1974] AC 862 and Neo Koon
Cheo v R [1959] MLJ 47. In Director of Public Prosecutions v Wishart Brooks , a
number of police officers saw a van with its engine running parked on a lay-by near
an airstrip. On the approach by the police officers, the respondent, who was the
driver, and others who were in the cab of the van attempted to run away. The
respondent was caught by the police. In the body of the van, which was neither visible
nor accessible from the cab, were 19 sacks containing over 1,000 pounds of ganja.
The respondent’s conviction was quashed by the Jamaican Court of Appeal on the
ground that it was not shown that he had more than mere custody or charge of the
van and its contents and that there was no evidence that he had possession of the
ganja. The Privy Council, in allowing the appeal, held that the technical doctrines of
the civil law about possession were irrelevant to this field of criminal law and added at
pp 866-867:
In the ordinary use of the word ‘possession’, one has in one’s

possession whatever is, to one’s own knowledge, physically in one’s
custody or under one’s physical control. This is obviously what was
intended to be prohibited in the case of dangerous drugs. Question (1)
and the reason given for the answer, however, suggest that, in addition
to the mental element of knowledge on the part of the accused, which
the Court of Appeal had chosen to deal with separately in questions (2)
and (3), the word ‘possession’ imported into this criminal status as a
necessary ingredient of an offence against public health the highly
technical doctrines of the civil law about physical custody without
ownership as a source of legal rights in the actual custodian against
third parties and about the legal relationships between owner and
custodian which bring about the separation of property and possessory
rights in chattels. If this is the implication to be drawn from this
part of the judgment in Reg v Livingston (1952) 6 JLR 95 it is, in
their Lordship’s view, wrong. These [*22] technical doctrines of
the civil law about possession are irrelevant to this field of criminal
law. The only actus reus required to constitute an offence under s 7(c)
is that the dangerous drug should be physically in the custody or under
the control of the accused. The mens rea by which the actus reus must
be accompanied is the kind of knowledge on the part of the accused that
is postulated in questions (2) and (3).
Upon the evidence, including his own statement to the police, the 19
sacks of ganja were clearly in the physical custody of the respondent
and under his physical control. The only remaining issue was whether
the inference should be drawn that the respondent knew that his load
consisted of ganja. Upon all the evidence and in particular the fact
that he and other occupants of the van attempted to run away as soon as
they saw the uniformed police approaching the magistrate was, in their
Lordships’ view, fully entitled to draw the inference that the
defendant knew what he was carrying in the van.
[13] In Neo Koon Cheo v R , a raid was made by a detective sergeant, a detective
corporal and a detective on the attic of No 26, New Bridge Road, on 21 January 1958
at about 8.20pm. On entering the attic, the detective corporal and the detective saw
the appellant holding a confectionery tin in his hands and attempting to get out of the
attic through an opening on the left side of the attic. On examination, the tin was
found to contain a phial of chandu, a small tin of chandu dross, an opium pipe-head, a
rag and some tools. In holding, in the alternative, that the evidence was sufficient to
make a case against the appellant for possession of prepared opium and smoking
utensils, Ambrose J said at p 50:
If my interpretation of s 37(d) of the Ordinance is not correct, the

conviction on the first charge can be supported without having recourse
to the presumption under s 37(d). The fact that the appellant was seen
attempting to take the confectionery tin and its contents out of the
attic as soon as the detectives entered the attic raises the inference
that the appellant was endeavouring to put the tin and its contents out
of sight and the further inference that he had knowledge of the nature
of the contents of the tin. As the opium pipe-head and the chandu and
chandu dross were found in the attic, it must be presumed, until the
contrary is proved, under s 37(c) of the Dangerous Drugs Ordinance that
the attic was used for the purpose of smoking of chandu by a human
being and that the occupier permitted the attic to be used for such
purpose. The appellant was not the occupier of the premises but a
friend of the occupier. Nevertheless, the presumptions under s 37(c)
makes both the inferences irresistible. As the contents of the
confectionery tin were in the appellant’s actual physical control, and
as the circumstances justified the inference that the appellant
intended to exercise control over them for his own purposes, he was, in
my opinion, rightly found to-be in possession of the chandu and chandu
dross.
[14] The evidence of PW2 shows that the accused was carrying exh P3 for some
distance. When PW2 shouted ‘Police’, the accused ran and threw it. PW2 then picked it
up. It contained the dangerous drugs. The fact that the accused was carrying exh P3
and that he threw it when confronted clearly shows that he had custody and control of
it together with what it contained. The remaining matter for consideration is whether
he had knowledge that he was carrying the dangerous drugs in respect of which he
had been [*23] charged. As proof of knowledge is very often a matter of inference,
the conduct of the accused prior to his arrest is brought into sharp focus. He ran and
threw exh P3 when PW2 shouted ‘Police’. In Chan Kwok Keung & Anor v The Queen
[1990] 1 CLJ 411, referred to in a passage from Public Prosecutor v Chia Leong Foo
which I have reproduced earlier, it was held that in order for flight to be capable of
amounting to an admission of guilt there must be some evidence which establishes a
nexus between the conduct of the accused, his flight or concealment and the offence
in question. The facts reveal that the accused had custody and control of exh P3 at
the material time. It contained the dangerous drugs which formed the offence alleged
against him. When the word ‘Police’ was shouted he immediately ran and threw it. The
fact that the accused was carrying exh P3 with its contents followed by the speed at
which he ran and threw it upon being confronted show that there is a clear nexus
between his conduct and the offence in question. He wanted to part possession with
what constituted the offence. It is a clear indication of his guilty mind. This is
sufficient to infer that the accused had knowledge of the existence of the dangerous
drugs in exh P3. I pause to add that the facts of this case must be contrasted with
those in Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 3 MLJ 1, Public
Prosecutor v Letchumanan [2000] 4 MLJ 449 and Public Prosecutor v Mohd Farid
bin Mohd Sukis & Anor [2002] 3 MLJ 401 where the flight of the accused was found
to be of no consequence as there was no nexus between the dangerous drugs seized
and the conduct of the accused. The inference drawn in this case that the accused had
knowledge of the existence of the dangerous drugs does not suggest that he knew
that it was cannabis. With regard to the extent and nature of knowledge of the
dangerous drugs that the prosecution must prove, I consider it necessary to
reproduce what I had said in Public Prosecutor v Mohd Farid bin Mohd Sukis &
Anor at pp 420-421:
It must be observed that in proving this element the obligation of the

prosecution is only to establish that the accused had knowledge, either
by direct evidence or by way of inference, of the existence of the
dangerous drug but not its qualities. This stand has been consistently
taken by the Singapore Courts following Warner v Metropolitan Police
Commissioner [1969] 2 AC 256 which was approved in Tan Ah Tee
& Anor v PP [1980] 1 MLJ 49. It is sufficient for me to refer
to Sim Teck Ho v PP [2000] 4 SLR 39 where Yong Pung How CJ said
at pp 42-43:
‘The appellant was charged with trafficking in a controlled drug,

an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) (‘
the Act’). Section 5(2) of the Act states that a person commits
the offence of trafficking in a controlled drug if he has in his
possession that drug for the purpose of trafficking. Section
17(c) of the Act provides a presumption concerning trafficking.
It states that any person proved to have possession of more than
2g of diamorphine shall be presumed to have that drug in
possession for the purpose of trafficking unless it is proved
that his possession of that drug was not for that purpose.
The key issue in this appeal was whether the trial judge was
right in finding that the appellant was in possession of the
diamorphine contained in the bag. Numerous cases have established
that possession encompasses [*24] the element of physical
control as well as an element of knowledge. For example, in Fun
Seong Cheng v PP [1997] 3 SLR 523, it was said by Karthigesu
JA, in delivering the judgment of the Court of Appeal:
53 … Clearly in order to prove that the appellant was in

possession, he must have physical control over the drugs.
It is a matter of fact whether someone had physical control
over an item …
54 Physical control is not enough for the purpose of

proving possession. There needs to be mens rea on the part
of the accused.”
Karthigesu JA went on to cite a portion of Lord Pearce’s judgment in

Warner v Metropolitan Police Commissioner [1969] 2 AC 256, a
decision of the House of Lords which involved the meaning of ‘possession
’ for the purpose of s 1 of the Drugs (Prevention of Misuse) Act 1964.
Lord Pare’s dicta had been cited in extensio with approval by the Court
of Appeal in Tan Ah Tee & Anor v PP [1978-1979] SLR 211;
[1980] 1 MLJ 49. Wee Chong Jin CJ in delivering the judgment of the
court, said that the word ‘possession’ for the purpose of the Act
should be construed as Lord Pearce had construed it. His Lordship had
said in Warner at p 305:
‘One may, therefore, exclude from the ‘possession’ intended by

the Act the physical control of articles which have been ‘planted’
on him without his knowledge. But how much further is one to go?
If one goes to the extreme length of requiring the prosecution to
prove that ‘possession’ implies a full knowledge of the name and
nature of the drug concerned, the efficacy of the Act is
seriously impaired, since many drug pedlars may in truth be
unaware of this. I think that the term ‘possession’ is satisfied
by a knowledge only of the existence of the thing itself and not
its qualities, and that ignorance or mistake as to its qualities
is not an excuse.’
Therefore, in order to prove possession, the prosecution must prove

that there is first, physical control over the controlled drug, and
second, knowledge of the existence of the thing itself, that is the
existence of the controlled drug, but not the name nor nature of the
drug.
[15] Thus, it is not necessary for the prosecution to prove that the accused had
knowledge of the nature of the drugs. It follows that the inferences drawn from the
direct evidence are sufficient to show that the accused had possession of the
cannabis. However, there is no further evidence to show that he was trafficking in the
dangerous drugs. As the cannabis weighed more than 200g, the presumption
contained in s 37(da) of the Dangerous Drugs Act 1952 must therefore be invoked.
The accused is thus presumed to have been trafficking in the drugs. This means that
the prosecution has made out a prime facie case against the accused. Accordingly, I
called upon him to enter his defence to the charge preferred against him. The three
alternatives were explained to the accused. He elected to give evidence on oath.
[16] In substance, the defence of the accused is that he was not carrying exhs P3
and that PW2 was not at the scene. As he said in his evidence:
Saya berjalan ke arah landasan keretapi untuk pergi ke gerai makan.

Reban ayam di sini saya punya. Saya dari kawasan depan bengkel melalui
lorong yang ada anak panah. Kemudian saya melalui lorong tepi reban
ayam menuju ke tandas untuk cuci tangan saya. Selepas itu, saya menuju
ke kawasan pagar [*25] yang berlubang. Saya keluar melalui pagar
berlubang itu. Kemudian seorang lelaki berumur dalam 35 tahun panggil
saya. Kemudian dia terus memegang saya. Apabila orang itu panggil saya,
dia ada di belakang saya. Lebih kurang dalam jarak 10–11 meter. Beliau
dengan seorang lain. Dia terus memegang saya. Dia terus menggari saya.
Baru dia memperkenalkan diri. Mereka anggota polis. Pada masa itu, saya
tidak memegang apa-apa barang. Kemudian dua anggota polis memukul saya.
Dua anggota polis ini tidak ada memberi keterangan dalam kes ini.
Mereka tanya saya di manakah barang. Saya tidak tahu apa barang yang
mereka maksudkan. Kemudian salah seorang dari anggota polis itu
menunjuk kepada longgokan sampah. Dia mengambil satu bungkusan plastik
berwarna putih jernih lutsinar. Jarak di antara tempat saya dan
longgokan sampah lebih kurang 8–9m. Anggota polis pergi terus dan
mengambil barang itu. (Saksi dirujuk kepada P10). Gambar A dan D ialah
kawasan sampah.
Selepas barang diambil, dia membawa saya menuju ke depan kawasan

bengkel. Kemudian salah seorang anggota polis mengeluarkan telefon
bimbit dan membuat satu panggilan. Dalam masa 15 minit, dua kereta
datang. Satu kereta Proton Perdana berwarna hijau. Satu lagi Proton
Saga berwama biru. Dari Perdana keluar seorang. Dari Proton Saga, dua
orang keluar. Kemudian dia mengambil saya dan letak saya dalam kereta
Proton Saga. Saya diambil ke Balai Polis Brickfields. Perkara seperti
yang dikatakan oleh SP2 tidak berlaku. Saya nampak SP2 di depan kawasan
bengkel sahaja. Dia yang membawa kereta Perdana. Dia keluar dari kereta
itu. Jarak dari tempat saya ditangkap ke tempat bengkel lebih kurang
60m. Dari tempat bengkel tidak boleh nampak tempat yang saya ditangkap.
Sebab ia terlindung di belakang reban ayam dan semak-semak samun. Orang
dari bengkel buang sampah di tempat sampah itu.
Pada masa itu, ada pekerja lain yang menuju ke kawasan yang sama. Tidak
benar tangkapan berlaku pada 12.00 tengah hari.
[17] The testimony of the accused that PW2 was not at the scene was not put to
him in the course of his cross-examination. That, on its own, does not mean that this
part of the defence must be rejected. As Edgar Joseph Jr FCJ said in Alcontara a/l
Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209 at p 218:
… it is settled law that, although a court may view with suspicion a

defence which has not been put to the appropriate prosecution witnesses
who might have personal knowledge of the points at issue, the court is
still bound to consider the defence, however weak, and to acquit if not
satisfied that the prosecution has discharged the burden of proof which
rests upon it.
[18] Ordinarily, it may have been necessary for the prosecution to have recalled
PW2 for the purpose of rebutting this part of the evidence of the accused. However,
PW2 was cross-examined at length on the basis that he was at the scene. As he had
given affirmative evidence of his presence at the scene there was no need for him to
have been recalled for the purpose of rebutting what he had already confirmed. In the
circumstances and judged against the background of the facts of the case, it is my
view that this part of the evidence of the accused is a concoction. This casts doubt on
the credibility of his evidence that he was not carrying exh P3. It is also in the nature
of a bare denial. Thus, I was unable to accept the defence advanced by the [*26]
accused. He had therefore not succeeded in rebutting the presumption raised against
him. Neither has he raised any reasonable doubt to show that he was not in
possession of exh P3 at the material time. I was therefore satisfied that the
prosecution had proved its case against the accused beyond reasonable doubt.
Accordingly, I found him guilty. I imposed the only sentence allowed by law, that is to
say, the sentence of death. I further directed that the accused be hanged by the neck
till he is dead.
ORDER:
Accused convicted.
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Reza Mohd Shah bin Ahmad Shah v Public Prosecutor
[2006] 2 MLJ 223
CRIMINAL APPEAL NO W–05–34 of 2002
COURT OF APPEAL (PUTRAJAYA)
DECIDED-DATE-1: 13 OCTOBER 2005
ABDUL KADIR SULAIMAN, ARIFIN ZAKARIA AND NIK HASHIM JJCA
CATCHWORDS:
Criminal Law - Drug trafficking - Dangerous Drugs Act 1952 - s 39B(1)(a) - Whether
direct evidence of possession adduced - Whether necessary for prosecution to prove
directly or inferentially that accused had knowledge of the dangerous drug - Whether
prosecution ought to have invoked statutory presumption of possession - Whether
prima facie case of trafficking made out against accused - Whether proma facie case
of possession made out instead - Dangerous Drugs Act 1952 s 37(d), (da)
Evidence - Character of accused - Conduct of accused running away and throwing bag
containing drugs when confronted by non-uniformed police officers - Inferences from
such conduct - Whether sufficient to infer knowledge of the drugs - Whether such
conduct could sustain other inferences
Evidence - Presumptions - Drug trafficking - Presumption of possession - Whether

direct evidence to sustain possession of dangerous drugs in existence - Whether
factual matrix favoured recourse to the statutory presumption of possession -
Dangerous Drugs Act 1952 s 37(d), (da)
HEADNOTES:
The appellant was convicted and sentenced to death in the High Court for trafficking
in dangerous drugs, to wit 795.3g of cannabis. In convicting the appellant, the trial
judge made a positive/direct finding of possession without recourse to the statutory
presumption of possession under s 37(d) of the Dangerous Drugs Act 1952 (‘the Act’).
Upon this positive/direct finding of possession, the trial judge then applied the
statutory presumption of trafficking under s 37(da) of the Act. In establishing
positive/direct possession, the trial judge found the element of custody or control of
the cannabis proved by the following direct evidence: (a) the appellant was seen
carrying a plastic bag (‘exh P3’) for some distance; (b) when confronted by police
officers, the appellant ran and threw exh P3 away; (c) when exh P3 was recovered, it
was found to contain cannabis. With regard to the element of knowledge, the trial
judge found that the conduct of the appellant in running away when confronted and
throwing away exh P3 evinced a clear nexus between his conduct and the offence in
question. Such conduct was an indication of his guilty mind and was sufficient to infer
that he had knowledge of the existence of the cannabis in exh P3. The appellant
appealed against conviction and sentence.
[*224]
Held, allowing the appeal:

(1) The conduct of the accused in running and throwing the bag (exh P3)
away could also give rise to the inference that the appellant was
behaving in the manner he did in respect of any other offence relating
to what was contained in exh P3. The trial judge did not realize this.
Such conduct of the appellant did not also point to the one and only
conclusion that he knew what he was carrying was the dangerous drug
cannabis. Such conduct could also give rise to the inference that he
acted as he did because he was carrying some other prohibited goods or
that he panicked upon being confronted by non-uniformed police officers
(see paras 9–11); Sim Teck Ho v Public Prosecutor [2000] 4 SLR
39 distinguished and Ton Su Kuan v Public Prosecutor [2005] 3
CLJ 740 followed.
(2) The Court of Appeal could not agree with the trial judge’s conclusion
that it was not necessary for the prosecution to prove that the
appellant had knowledge of the nature of the drug. In the instant case,
with reference to the offence the appellant was charged with, it was
necessary for the prosecution to prove directly or inferentially that
the appellant had knowledge of the dangerous drug in the bag (exh P3).
Here, in view of the appellant’s conduct, it was necessary for the
prosecution to have invoked the statutory presumption under s 37(d) of
the Dangerous Drugs Act 1952 to deem the appellant in possession of the
cannabis and to have known that exh P3 contained the cannabis. Since
the statutory presumption had not been invoked, no prima facie case had
been made out against the appellant. (see paras 12, 13).
(3) In the instant case, the issue of trafficking in the cannabis could not
arise as possession of the said drug by the appellant was not made out
by the prosecution. There was no direct evidence of possession with the
requisite knowledge based on the evidence tendered. However, with the
aid of the statutory presumption provided by s 37(d) of the Act, the
prosecution had made out a prima facie case for an offence under s 6 of
the Act for being in possession of the cannabis. The appellant’s
defence at the trafficking trial ought to have been considered as a
defence on the reduced charge of possession. His defence however was a
mere denial and he had not rebutted the presumption raised against him
under s 37(d) of the Act. The Court of Appeal found that on the facts,
the prosecution had proved its case against the appellant on the
reduced charge of possession beyond reasonable doubt. Accordingly, the
Court of Appeal substituted the conviction and sentence for trafficking
with a conviction and sentence for possession (see paras 14–18).
Perayu telah disabit dan dijatuhkan hukuman mati di Mahkamah Tinggi kerana
mengedar dadah berbahaya, iaitu sejumlah 795.3g kanabis. Dalam mensabitkan
perayu, hakim perbicaraan telah membuat penemuan positif/langsung berhubung
milikan tanpa bantuan andaian statutori milikan di bawah s 37(d) Akta Dadah [*225]
Berbahaya 1952 (‘Akta tersebut’). Berdasarkan penemuan positif/langsung milikan ini,
hakim perbicaraan kemudiannya telah menggunakan andaian statutori pengedaran di
bawah s 37(da) Akta tersebut. Dalam membuktikan milikan positif/langsung, hakim
perbicaraan mendapati elemen milikan atau kawalan kanabis dibuktikan melalui
keterangan langsung berikut: (a) perayu telah dilihat dari jauh sedang membawa
sebuah beg plastik (‘eksh P3’); (b) apabila bertembung dengan pegawai polis, perayu
lari dan membaling eksh P3; (c) apabila eksh P3 ditemui, ia didapati mengandungi
kanabis. Berhubung elemen pengetahuan, hakim perbicaraan mendapati bahawa
perlakuan perayu melarikan diri apabila didatangi polis dan membaling eksh P3
memperlihatkan neksus antara perlakuan beliau dan kesalahan yang dipersoalkan.
Perlakuan sedemikian merupakan petanda fikiran bersalah beliau dan adalah
memadai untuk membuat kesimpulan bahawa beliau mempunyai pengetahuan
tentang kewujudan kanabis itu dalam eksh P3. Perayu telah mengemukakan rayuan
terhadap sabitan dan hukuman.
Diputuskan, membenarkan rayuan tersebut:

(1) Perlakuan tertuduh melarikan diri dan membaling beg itu (eksh P3) juga
menimbulkan inferens bahawa perayu berkelakuan seperti mana sepatutnya
berhubung apa-apa kesalahan lain berkaitan dengan apa yang terkandung
dalam eksh P3. Hakim perbicaraan tidak sedar hal ini. Perlakuan perayu
yang sedemikian juga tidak menunjukkan kepada hanya satu kesimpulan
bahawa beliau mengetahui apa yang beliau bawa itu adalah dadah
berbahaya kanabis. Perlakuan tersebut juga menimbulkan inferens bahawa
beliau telah bertindak sepertinya kerana beliau sedang membawa barangan
larangan lain atau bahawa beliau panik apabila didatangi pegawai polis
yang tidak berseragam itu (lihat perenggan 9–11); Sim Teck Ho v
Public Prosecutor [2000] 4 SLR 39 dibeza dan Ton Su Kuan v
Public Prosecutor [2005] 3 CLJ 740 diikut.
(2) Mahkamah Rayuan tidak bersetuju dengan kesimpulan hakim perbicaraan
bahawa ia tidaklah perlu untuk pihak pendakwa membuktikan bahawa perayu
mempunyai pengetahuan tentang sifat dadah itu. Dalam kes semasa,
berdasarkan rujukan kepada kesalahan perayu yang telah dituduhkan itu,
adalah perlu untuk pihak pendakwa membuktikan secara langsung atau
secara inferens bahawa perayu mempunyai pengetahuan tentang dadah
berbahaya dalam beg itu (eksh P3). Di sini, berdasarkan perlakuan
perayu, adalah perlu untuk pihak pendakwa untuk menggunakan andaian
statutori di bawah s 37(d) Akta Dadah Berbahaya 1952 untuk menganggap
perayu mempunyai milikan kanabis itu dan telah mengetahui bahawa eksh
P3 mengandungi kanabis. Memandangkan andaian statutori tidak digunakan,
tiada kes prima facie telah dibuktikan terhadap perayu (lihat perenggan
12, 13).
(3) Dalam kes semasa, persoalan tentang pengedaran kanabis tidak timbul
kerana milikan dadah tersebut oleh perayu tidak dibuktikan oleh pihak
pendakwa. Tidak ada keterangan langsung tentang milikan dengan
pengetahuan yang diperlukan berdasarkan keterangan yang dikemukakan.
Namun, dengan bantuan andaian statutori yang diperuntukkan oleh s 37(d)
Akta tersebut, pihak pendakwa telah membuktikan satu kes prima facie
untuk kesalahan di bawah s 6 Akta tersebut kerana memiliki kanabis.
Pembelaan perayu semasa [*226] perbicaraan pengedaran itu
sepatutnya dipertimbangkan sebagai pembelaan untuk mengurangkan
pertuduhan milikan. Pembelaan beliau bagaimanapun hanyalah satu
penafian dan beliau tidak mematahkan andaian yang ditimbulkan
terhadapnya di bawah s 37(d) Akta tersebut. Mahkamah Rayuan mendapati
bahawa berdasarkan fakta-fakta berikut, pihak pendakwa telah
membuktikan kesnya terhadap perayu berdasarkan pengurangan pertuduhan
milikan yang melampaui keraguan munasabah. Sewajarnya, Mahkamah Rayuan
telah menggantikan sabitan dan hukuman untuk pengedaran itu dengan satu
sabitan dan hukuman untuk milikan (lihat perenggan 14–18).
Notes
For cases on character of accused generally, see 7(1) Mallal’s Digest (4th Ed, 2003
For cases on drug trafficking, see 4 Mallal’s Digest (4th Ed, 2003 Reissue) paras 290–
391.
For cases on presumptions on drug trafficking, see 7(1) Mallal’s Digest (4th Ed, 2003
Cases referred to
Muhammed bin Hassan v PP [1998] 2 MLJ 273
PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401
Sim Teck Ho v PP [2000] 4 SLR 39
Taib bin Mohamad v PP [2002] 3 MLJ 476
Ton Su Kuan v PP [2005] 3 CLJ 740
Warner v Metropolitan Police Commissioner [1969] 2 AC 256
Dangerous Drugs Act 1952ss 6, 37(d), (da)(vi), 39A(2)
Drugs (Prevention of Misuse) Act 1964 [UK] s 1
Appeal from: Criminal Trial No 45-10 of 2001 (High Court, Kuala Lumpur)
Edmund Bon (Nik Mohamed Ikhwan with him) (Chooi & Co) for the appellant.
Tuan Meor Hashimi bin Abdul Hamid for the respondent (Public Prosecutor,
Attorney General’s Chambers) for the respondent.
Abdul Kadir Sulaiman JCA (delivering judgment of the court)::
[1] The appellant was charged in the High Court with an offence of trafficking in
dangerous drug, to wit, cannabis. The charge in Bahasa Malaysia is in the following
terms:
Bahawa kamu pada 14 Ogos 2000 jam lebih kurang 12.15 tengahari, di
kawasan tanah rezab jalan keretapi, Jalan Pantai Dalam, Brickfields,
Kuala Lumpur, Wilayah Persekutuan telah mengedar dadah berbahaya iaitu
795.3 gram cannabis dan oleh yang demikian kamu telah melakukan satu
kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh
dihukum di bawah s 39B(2) Akta yang sama.
[*227]
[2] After a full trial, the learned judge found the appellant guilty of the charge and
proceeded to convict him accordingly. The judge relied on the fact of actual
possession of the substance without having to rely on the presumption provided by s
37(d) of the Dangerous Drugs Act 1952 (‘the Act’), and upon the application of the
presumption under s 37(da) of the Act thereof, the substance being above the
statutory minimum weight of 200g, found him to be trafficking in the substance,
having ruled that the appellant failed to raise any reasonable doubt as to the
prosecution’s case. The substance in this case is cannabis, a form of dangerous drug.
[3] This is an appeal by the appellant against his said conviction upon the charge
and the mandatory sentence thereby imposed by the learned judge. We heard the
appeal on 10 May 2005. At the end of it, we allowed the appeal of the appellant by
setting aside the decision of the learned Judge and in its place we substituted with the
finding of guilty upon a reduced charge of being in possession of cannabis under s 6
and sentenced the appellant under the increased penalty provided by s 39A(2) of the
Act, to a term of 18 years imprisonment to take effect from the date of arrest, which
was on 14 August 2000, with whipping of 10 strokes. We now provide our reasons for
so doing.
[4] The learned judge found actual possession of cannabis in the appellant on the
evidence before him. The evidence of PW2 shows that the respondent was seen
carrying exh P3, a plastic bag, for some distance. When confronted, he ran and was
seen throwing exh P3 away. When recovered, exh P3 was found to contain cannabis.
As to the custody and control of exh P3 in the appellant, on the evidence, there
cannot be any doubt. Therefore, the remaining matter for his consideration is whether
the appellant had knowledge that he was carrying the dangerous drug in respect of
which he had been charged, ie cannabis. In other words, the issue is whether the
appellant had the knowledge that he was carrying cannabis. For such conduct of the
appellant, which is running away when confronted and at the same time throwing
away the plastic bag containing cannabis, the learned judge held:
The fact that the accused was carrying exh P3 with its contents
followed by the speed at which he ran and threw it upon being
confronted show that there is a clear nexus between his conduct and the
offence in question. He wanted to part possession with what constituted
the offence. It is a clear indication of his guilty mind. This is
sufficient to infer that the accused had knowledge of the existence of
the dangerous drugs in exh P3.
[5] However, the learned judge was mindful that the inference drawn in this case
that the appellant had knowledge of the existence of the dangerous drug does not
suggest that he knew that it was cannabis. But relying on his own decision in the case
of Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401
following the Singapore case of Sim Teck Ho v Public Prosecutor [2000] 4 SLR 39,
he was satisfied that the appellant had knowledge of the existence of cannabis in exh
P3. He relied his findings on a dicta of Yong Rung How CJ in the case of Sim Teck Ho,
where the learned CJ said at p 43:
The appellant was charged with trafficking in a controlled drug, an

offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) (‘the Act’)
. Section 5(2) of the Act states that a person commits the offence of
trafficking in a controlled drug if he has in his possession that drug
[*228] for the purpose of trafficking. Section 17(c) of the Act
provides a presumption concerning trafficking. It states that any
person proved to have possession of more than 2g of diamorphine shall
be presumed to have that drug in possession for the purpose of
trafficking unless it is proved that his possession of that drug was
not for that purpose.
[6] The learned CJ in Sim Teck Ho, then cited the dicta of Lord Pearce in Warner v
Metropolitan Police Commissioner [1969] 2 AC 256, a decision of the House of Lords
involving the meaning of ‘possession’ for the purpose of s 1 of the Drugs (Prevention
of Misuse) Act 1964 as follows:
I think that the term ‘possession’ is satisfied by a knowledge only of

the existence of the thing itself and not its qualities, and that
ignorance and mistake as to its qualities is not an excuse.
In conclusion, the learned CJ said:
Therefore, in order to prove possession, the prosecution must prove

that there is first, physical controlled over the controlled drug, and
second, knowledge of the existence of the thing itself, that is the
existence of the controlled drug, but not the name or nature of the
drug.
[7] Thus, relying on those cases in the House of Lords and in the Singapore Court,
the learned judge, in our present case, followed the decision he made in Public
Prosecutor v Mohd Farid bin Mohd Sukis & Anor, where he concluded at p 420 thus:
It must be observed that in proving this element the obligation of the

prosecution is only to establish that the accused had knowledge, either
by direct evidence or by way of inference, the existence of the
dangerous drug but not its qualities.
[8] Having gone through the report in Sim Teck Ho, ourselves, we are of the view
that the case can be easily distinguished from the present case before us on the
peculiar facts and circumstances prevailing in the case. The Singapore Court of Appeal
in that case affirmed the decision of the High Court at first instance. Refer to paras 5–
9 of the report, in particular, for the reasons.
[9] In our view, owing to the peculiar facts and circumstances presenting
themselves in the Singapore case, without having to resort to any statutory
presumption, the accused there can safely be inferred to have been in possession of
the controlled drugs, diamorphine, and to have known the nature of the controlled
drugs. However, in our present case, the inference of possession of cannabis and the
knowledge by the appellant that the dangerous drug contained in exh P3 is cannabis
was deduced only from the fact that the appellant ‘was carrying exh P3 with its
contents followed by the speed at which he ran and threw it upon being confronted’
which according to the learned judge would show that there is a clear nexus between
his conduct and the offence in question. From the facts, the learned judge was of the
view that the appellant wanted to part possession with what constituted the offence
and a clear indication of his guilty mind which is sufficient to infer that the appellant
had knowledge of the existence of the dangerous drug which in this case is cannabis
in exh P3 but without little realizing that from the conduct of the appellant it could
[*229] also clearly be inferred that he could have behaved in the manner he did in
respect of any other offence relating to what was contained in exh P3.
[10] In support of the findings of the learned judge on the issue of possession of the
dangerous drugs, cannabis, the learned deputy for the respondent, submitted that the
appellant was seen by the police ambush team headed by PW2 carrying in his right
hand exh P3 which contained dangerous drug. The appellant’s movement was under
surveillance of the ambush team and was seen walking alone in a suspicious manner.
When the word ‘polis’ was uttered he took flight. In the course of it, the appellant
threw to the ground the plastic bag he was then carrying. The said bag was
subsequently found to contain cannabis. So, on the facts, the learned deputy
submitted that the said dangerous drug, was in his possession. The appellant’s action
in running away when confronted, and at the same time throwing away the plastic
bag can be inferred that the appellant had the knowledge that the plastic bag
contained the dangerous drug. By running away, it shows that the appellant had the
knowledge in regard to the drug in the plastic bag. By throwing away the plastic bag,
the appellant wanted to part with possession of the drug.
[11] But in our view, just because the appellant took flight and threw the plastic bag
containing dangerous drug does not point to one and only conclusion that he knew
what he was carrying was the dangerous drug, cannabis. In the circumstances, other
inferences can be made such as that he did so because he may be carrying any other
prohibited goods other than cannabis or that he was panicky and therefore chose to
run away and throw out the bag he was carrying more so, in this case, when the
police who confronted him were not in uniform. In Ton Su Kuan v Public Prosecutor
[2005] 3 CLJ 740 where the circumstances were very much stronger against the
accused in that case than those in the present case but this court held that they were
insufficient to constitute proof of possession of the very drug stipulated in the charge.
The accused in that case was charged with the capital offence of trafficking in
1,584.93g of heroin and was sentenced to death in the High Court. The evidence for
the prosecution was that the drug was found in 356 packets in different parts of the
accused’s person: 62 packets in the left shoe, 60 packets in the right shoe, 57 packets
strapped to the left shin, another 57 packets strapped to the right shin, 60 packets
tied to the waist in front and 60 packets fastened to the waist at the back. This court
there said as follows:
In our judgments, the manner in which the packets were fastened to the
appellant’s person shows at the highest that he had knowledge the
packets contained some prohibited substance, perhaps, drugs or perhaps
some other substance which was unlawful to have in one’s possession.
But It certainly does not prove that the appellant knew the packets
contained heroin, the drug which forms the subject matter of the charge.
[12] The learned judge in his judgment at p 22 of the appeal record said that in the
nature of the charge, it is not necessary for the prosecution to prove that the
appellant had knowledge of the nature of the drug. With respect, we cannot agree
with such conclusion. By the operation of our Dangerous Drugs Act 1952, in relation
to the charge, it is necessary for the prosecution to prove directly or inferential that
the appellant had the knowledge of the nature of the dangerous drug he was carrying
in the plastic bag. Knowledge in a person is a thing which cannot be seen or [*230]
perceived. It can be deduced only from the overt act or conduct short of his own
admission. The legislature in its wisdom, realizing the difficulty of establishing by
direct evidence of this fact of knowledge, introduced a statutory presumption which is
rebuttable, by way of s 37(d) of the Act. In Taib bin Mohamad v Public Prosecutor
[2002] 3 MLJ 476, this court said at p 480:
We have examined the evidence adduced in the case at the prosecution

stage of the trial to see if the facts disclosed that the accused had
actual knowledge of the nature of the drugs so that the judge could
have relied on such facts to infer knowledge without resorting to s
37(d) of the Act in which case the invoking of the presumption of
trafficking under s 37(da) of the Act would have been correct in law.
We did not find sufficient evidence for the judge to infer that the
accused had knowledge that the material was cannabis. … the mere
throwing of the bag without more cannot constitute knowledge of the
contents of the bag. …
There being no evidence from which his knowledge of the drugs could be
inferred, the learned judge could not and should not have called the
accused to make his defence on the charge of trafficking but the
accused because of the presumption of knowledge of the drug raised
under s 37(d) of the Act, could be called upon his defence on a charge
of possession of the cannabis.
[13] Therefore, upon the conduct of the appellant, only the statutory presumption in
s 37(d), can assist the prosecution to deem the appellant to have been in possession
of such drug, cannabis and to have known that exh P3 contained cannabis, the
subject matter of the charge. However, the learned Judge and the prosecution did not
avail themselves of the provisions of s 37(d) thereof. So, on the facts, we disagreed
with the learned judge that in the present case involving the appellant, he could be
inferred to have the knowledge that what he possessed was the dangerous drug,
cannabis. Short of invoking the statutory presumption provided by s 37(d) upon the
conduct of the appellant, no prima facie case has been made out against the appellant
that he was in possession of cannabis with the requisite knowledge.
[14] Now, having erroneously inferred from the conduct of the appellant to have
produced direct evidence of possession of cannabis in him, the learned judge upon the
weight of the cannabis found, invoked the presumption contained in s 37(da) thereof
thereby presuming the appellant to have been trafficking in such dangerous drug. But
as correctly pointed out by the learned judge, the prosecution must first establish that
the appellant was in possession of the dangerous drugs before the issue of trafficking
in them can arise for consideration. In the circumstances of the view we formed, the
issue of trafficking in the said dangerous drug would not at all arise as the issue of
possession of the drug by the appellant was not made out by the prosecution.
[15] However, that is not the end of the matter in that the appellant ought to be
acquitted entirely of the charge. As stated earlier, there is no direct evidence of
possession with the requisite knowledge based on the evidence tendered. But, with
the aid of the statutory presumption provided by s 37(d) of the Act, on the facts, the
prosecution had made out a prima facie case for an offence under s 6 of the Act for
being in possession of the said dangerous drug, cannabis, and as the weight of
[*231] cannabis involved is more that 50g, is liable to be punished under s 39A(2) of
the Act, if found guilty. Consequently, the appellant ought to have been called to
enter his defence for such possession.
[16] To digress, a question may be asked. Now that with the aid of the statutory
presumption provided by s 37(d) of the Act, knowledge of the possession of cannabis
is imputed on the appellant, why cannot the appellant be proceeded with the trial for
the offence of trafficking by invoking another statutory presumption under s 37(da)
(vi) of the Act, as the weight of cannabis possessed was 200g or more? The answer to
that is to be found in the celebrated decision of Muhammed bin Hassan v Public
Prosecutor [1998] 2 MLJ 273. The facts are similar to the present case against the
appellant in our present case. On the evidence, the learned trial judge held that a
prima facie case had been made out against the accused and that the prosecution had
also successfully raised the statutory presumptions under s 37(d) and 37(da) of the
Act. The learned trial judge then called on the accused to enter upon his defence on a
trafficking charge. On the totality of the evidence, the learned trial judge found that
the accused had failed to raise any reasonable doubt on the prosecution’s case and
had failed to rebut the statutory presumptions under s 37(d) and 37(da) on a balance
of probabilities. The accused was accordingly found guilty of the offence of trafficking
and was accordingly convicted. The accused appealed. The Federal Court in disposing
the appeal held at pp 288–289 as follows:
In our view, to constitute ‘possession’ under s 37(da) of the Act, so

as to be capable of forming one of the ingredients thereunder thereby
giving rise to the presumption of trafficking, there must be an express
affirmative finding (as opposed to legal presumption) of possession as
understood in criminal law, based on evidence.
Continuing at p 858, the Federal Court ruled as follows:
In our view, on the wording of s 37(da) as it stands, to read the

presumption of possession (ie possession as understood in criminal law,
with knowledge) provided in s 37(d) into s 37(da) so as to invoke
against an accused a further presumption of trafficking (ie presumption
upon presumption) would not only be ascribing to the phrase ‘found in
possession’ in s 37(da) a meaning wider than it ordinarily bears but
would also be against the established principles of constructions of
penal statutes and unduly harsh and oppressive against the accused. We
are not unaware that, as a general principle, a statute may place the
burden of proof on an accused by necessary implication and without
doing so expressly. This depends on the construction of the particular
legislation. But a court should be extremely cautious and slow to infer
from a statute that Parliament intended to impose on the defendant an
onerous duty to prove his innocence in a criminal case. Furthermore,
offences involving the trafficking of dangerous drugs are among the
most serious in a criminal calendar. Any ambiguity in s 37(da) should
be resolved in favour of the accused by placing the burden of proving
possession of the substances involved on the prosecution.
We would further add that in so construing as we do, we see no

injustice to the prosecution. In a proper case where the evidence so
warrants and the amount of the dangerous drugs reaches or exceeds the
quantity specified in s 37(da), there is nothing to prevent a trial
court from coming to a factual finding of possession as understood in
criminal law thereby attracting the presumption of trafficking under
the said s 37(da) which, of course, is rebuttable.
[*232]
Accordingly, we held that the learned trial judge had erred in law in
using the presumption of possession under s 37(d) of the Act to invoke
the presumption of trafficking under s 37(da) thereof.
[17] Reverting back to our present case involving the appellant, on the view we
expressed earlier, there is no express affirmative finding of possession as understood
in criminal law but for the legal presumption under s 37(d) of the Act, the appellant
cannot be called to enter his defence on the trafficking charge.
[18] But having called for the appellant to enter his defence on the original charge
of trafficking in such drug and heard the evidence tendered by the appellant, the
learned judge convicted him on the charge of trafficking in the dangerous drug,
cannabis. On our part, upon the view we took, the appellant’s defence at the trial
should have been considered as a defence on the reduced charge of possession in the
dangerous drug, cannabis. Considering the defence put up by the appellant which in
substance a mere denial of the evidence led by the prosecution particularly the
carrying and the throwing away of exh P3, we were of the view that the appellant had
not succeeded in rebutting the presumption raised against him under s 37(d) of the
Act. Neither has the appellant raised any reasonable doubt as to his custody and
control of exh P3 which contained the dangerous drug, cannabis. We were therefore,
satisfied that the prosecution had proved its case against the appellant on the reduced
charge of possession, beyond reasonable doubt. Consequently, we found the appellant
to be guilty of an offence under s 6 of the Act and it is for these reasons we allowed
the appeal against the conviction on trafficking and the sentence of death and
substituted therefor a conviction for possession of cannabis under s 6 of the Act and
sentenced him to 18 years imprisonment to take effect from the date of arrest, which
was on 14 August 2000, plus the minimum of 10 strokes of the rattan as so provided
by s 39A(2) of the Act, which we considered as fair in the circumstances of the case,
after considering the submissions on the sentence to be imposed, from the learned
counsel for the appellant on his behalf and from the learned deputy for the
respondent.
[19] My learned brothers, Arifin Zakaria and Nik Hashim JJCA have read this
judgment in draft and concurred with it.
ORDER:
Appeal allowed.
LOAD-DATE: 05/22/2008
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[2009] MLJU 0005
Malayan Unreported Judgments
Public Prosecutor v Reza Mohd Shah bin Ahmad Shah

FEDERAL COURT (PUTRAJAYA)
CRIMINAL APPEAL NO 05-40-2005(W)
DECIDED-DATE-1: 16 JANUARY 2009
HASHIM BIN DATO' HJ. YUSOFF, FCJ, ZAKI BIN TUN AZMI, PCA ABDUL AZIZ BIN
MOHAMAD, FCJ
JUDGMENTBY: Hashim bin Dato' Hj. Yusoff, FCJ
JUDGMENT
[1] The Respondent was convicted and sentenced to death by the High Court for an
offence of trafficking 795.3 grammes of cannabis. On appeal, the Court of Appeal
substituted the conviction under 39B(2) Dangerous Drugs Act 1952 (“the Act”) with
one under Section 6 of the Act and imposed a sentence of 18 years imprisonment with
effect from his date of arrest i.e. 14/08/2000, plus the minimum of 10 strokes of
whipping under section 39A(2) of the Act. The Public Prosecutor is now appealing
against the decision of the Court of Appeal.
[2] The brief facts are quite straight forward. The Respondent was seen by
Inspector Mohamad Alpiyang bin Ali (PW2) carrying in his right hand exhibit P3, a
plastic bag for some distance. When PW2 shouted “police”, the Respondent
immediately ran and was seen throwing exhibit P3 away. Upon recovery of exhibit P3
by PW2, it was found to contain the offending 795.3 grammes of cannabis.
[3] The crux of this appeal revolves on the issue whether the accused/Respondent,
without the aid of the statutory presumption under section 37(d) of the Act of
“deemed possession” had knowledge of the nature of the dangerous drugs.
[4] The learned DPP submitted that the Court of Appeal was of the view that just
because the Respondent took flight and threw the plastic bag containing the
dangerous drugs did not point to the one and only conclusion that he knew what he
was carrying was the dangerous drug, cannabis. In the circumstances, other
run away and throw away the bag he was carrying more so, in this case, when the
police who confronted him were not in uniform. (See: paragraph 11 of the Grounds of
Judgment of the Court of Appeal).
[5] It is the learned DPP’s submission that the prosecution is not relying on Section
37(d) of the Act for the presumption of knowledge against the Respondent. The
prosecution is basing its case simply on the conduct of the Respondent which offers no
other explanation but that he knew he was carrying dangerous drugs.
[6] Learned counsel for the Respondent however submitted that the trial Judge
found that “it is not necessary for the prosecution to prove that the accused had
direct evidence are sufficient to show that the accused had possession of the
cannabis.” (See page 22 – 23 of the Appeal Record). He then referred to several local
authorities which have interpreted that “actual possession” requires proof that the
possessor must have known the nature of the drug which was being carried. (See:
Tan Teck Chew v PP [2002] 2 MLJ 321 ; Taib Bin Mohamed v PP [2002] 3 MLJ 476 ,
480-481 and Toh Su Kuan v PP [2005] 3 CLJ 740 , 744-745.
[7] In the instant appeal, the learned trial Judge had said in his Grounds of
Judgment (at page 11 of the Appeal Record) that, relying on the case of PP v Phua
Keng Tong [1988] 2 MLJ 279 , as proof of knowledge is very often a matter of
inference, the conduct of the Respondent prior to his arrest is brought into sharp
focus. The fact that the accused was carrying exhibit P3 with its contents followed by
the speed at which he ran and threw it upon being confronted by the police, show that
there is a clear nexus between his conduct and the offence in question i.e. that he
wanted to part possession with what constituted the offence. It is a clear indication of
his guilty mind. This is sufficient to infer that the accused had knowledge of the
existence of the dangerous drugs in exhibit P3. I agree with the learned trial Judge on
this point.
[8] In the case of Warner v Metropolitan Police Commissioner [1968] 2 ALL ER 356 ,
the appellant was tried on a charge that he had in his possession a substance
specified in the schedule to the Drugs (Prevention of Misuse) Act 1964 namely 20,000
tablets containing amphetamine sulphate. Lord Reid at page 367, had this to say:
“Further it would be pedantic to hold that it must be shown that the accused knew
precisely which drugs he had in his possession. Ignorance of the law is no defence and
in fact virtually everyone knows that there are prohibited drugs. So it would be quite
sufficient to prove facts from which it would properly be inferred that the accused
knew that he had a prohibited drug in his possession.”
[9] The case of Abdullah Zawawi Bin Yusof v PP [1993] 3 MLJ 1 is distinguishable
because in that case the Appellant took to his heels as soon as he had heard DPC
Mohd Hashim’s announcement of the discovery of the wooden box containing a
plastic bag wherein the cannabis was found. In the instant appeal, the Respondent
already threw the plastic bag (P3) away even before its cannabis contents were
discovered by the police.
[10] I am also unable to agree with the Court of Appeal on its finding that on the
facts of this case, that it could not be inferred the Respondent did have the knowledge
that what he possessed was the dangerous drug, cannabis for reasons as stated
earlier above. Clearly on the evidence before the trial Judge, the Respondent was in
possession and having custody and control of the plastic bag which contained the
cannabis. His running away and throwing away the plastic bag (P3) are the overt acts
from which the learned trial Judge had correctly inferred that the Respondent knew
the nature of the contents of the said plastic bag (P3) to be cannabis. The learned trial
Judge also came to the conclusion that the Respondent’s defence was in the nature of
a bare denial and doubted the credibility of his evidence that he was not carrying
exhibit P3. As such he was unable to accept the defence advanced by the Respondent
that PW2 was not at the scene as PW2 was cross-examined at length on the basis that
he was at the scene.
[11] The learned trial Judge had appropriately considered the defence and gave his
reasons why he had rejected it. The statutory presumption of trafficking under section
37(da) is applicable in this case as the amount of cannabis is more than 200 grammes
in weight. The Respondent was also held by the trial Judge to have failed to rebut the
said presumption against him and that the prosecution had proved its case, beyond
reasonable doubt.
[12] On the evidence available in this case I am of the view that the Court of Appeal
had erred in disturbing the findings of facts by the trial Judge. For the reasons
adumbrated above, I therefore allow this appeal and set aside the order of the Court
of Appeal and restore the conviction and sentence imposed by the High Court.
Nurulhuda Nuraini bt Mohd Noor (Deputy Public Prosecutor, Jabatan Peguam

Negara) for the appellant
Edward Boon Tai Soon (Nik Mohamed Ikhwan with him) (Chooi & Co) for the
respondent
LOAD-DATE: 02/17/2009
Source [Malayan Law Journal Unreporteds]
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[2009] MLJU 0020
Malayan Unreported Judgments
Public Prosecutor v Reza Mohd Shah bin Ahmad Shah (Dissenting avail MLJU (09)
0005)
RAYUAN JENAYAH NO 05-40-2005(W)
ABDUL AZIZ BIN MOHAMAD, FCJ, HASHIM BIN DATO' HJ. YUSOFF, FCJ, ZAKI BIN TUN
AZMI, PCA
JUDGMENTBY: Abdul Aziz bin Mohamad, FCJ
JUDGMENT
[1] In the High Court, the prosecution relied on evidence of actual knowledge to
prove the element of knowledge that is necessary for possession in criminal law. The
evidence relied on was that of the respondent, upon being aware of police presence,
when their leader shouted “Police!”, immediately running away and throwing the
plastic bag containing two packages of cannabis that he was carrying. The prosecution
did not choose to rely on the presumption of knowledge in section 37(d) of the
Dangerous Drugs Act 1952. That was because if they did, then, by reason of this
court’s decision in Muhammed bin Hassan v Public Prosecutor [1990] 2 MLJ 273 ,
they would not have been able to rely also on the presumption of trafficking in section
37(da), arising from possession of the requisite amount of drug.
[2] The presumption of knowledge in section 37(d) is in the following terms:
(d) “custody or under his control anything whatsoever containing any

dangerous drug shall, until the contrary is proved, be deemed to
have been in possession of such drug and shall, until the
contrary is proved, be deemed to have known the nature of such
drug;”
[3] The judgment of the High Court is reported as Public Prosecutor v Reza
Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13 . This is what the learned trial judge
said at page 23 C-F:
“The fact that the accused was carrying [the plastic bag] with its
contents followed by the speed at which he ran and threw it upon being
the dangerous drugs in [the plastic bag] . . . The inference drawn in
this case that the accused had knowledge of the existence of the
dangerous drugs does not suggest that he knew that it was cannabis.
With regard to the extent and nature of knowledge of the dangerous
drugs that the prosecution must prove, I consider it necessary to
reproduce what I had said in Public Prosecutor v Mohd Farid bin Mohd
Sukis & Anor at pp 420-421.”
[4] There follows the passage reproduced from Mohd Farid, reported in [2002] 3
MLJ 401 , in which the learned trial judge began by saying, “It must be observed that
in proving this element [of knowledge] the obligation of the prosecution is only to
establish that the accused had knowledge . . . of the existence of the dangerous drug
but not its qualities”. He then quoted a passage from the Singapore case of Sim Teck
Ho v PP [2000] 4 SLR 39 , at pages 42-43, where Yong Pung How CJ, after quoting a
passage from the speech of Lord Pearce in Warner v Metropolitan Police
Commissioner [1969] 2 AC 256 , at page 305, concluded that, as regards knowledge,
proof of possession requires proof of “knowledge of the existence of the thing itself,
that is the existence of the controlled drug, but not the name nor nature of the drug”.
[5] Then following the end of the passage reproduced from Mohd Farid, the learned
trial judge said, “Thus, it is not necessary for the prosecution to prove that the
accused had knowledge of the nature of the drugs. It follows that the inferences
drawn from the direct evidence are sufficient to show that the accused had possession
of the cannabis.”
[6] The grounds of judgment of the Court of Appeal are reported as Reza Mohd
Shah Ahmad Shah v PP [2005] 4 CLJ 581 . The Court of Appeal took the view that the
prosecution had to prove knowledge of the particular drug in question, that is
cannabis, and said at page 585 d-e that “the issue is whether the appellant had the
knowledge that he was carrying cannabis”. The Court of Appeal arrived at the
following conclusion at page 587 g-h:
“But in our view, just because the appellant took flight and threw the
plastic bag containing dangerous drug does not point to one and only
conclusion that he knew what he was carrying was the dangerous drug,
cannabis. In the circumstances, other inferences can be made such as
that he did so because he may be carrying any other prohibited goods
other than cannabis or that he was panicky and therefore chose to run
away and throw out the bag he was carrying more so, in this case, when
the police who confronted him were not in uniform.”
[7] The Court of Appeal therefore found that the prosecution had failed to prove
actual knowledge but the court had recourse to the presumption of knowledge in
section 37(d) and found the respondent guilty of possession under section 6 of the
Act. Recourse being had to the presumption in section 37(d), it was not possible,
because of Muhammed bin Hassan (supra), to also have recourse to the presumption
of trafficking in section 37(da).
[8] There are two aspects to the judgment of the Court of Appeal as regards
knowledge. The first aspect is regarding the type or extent of knowledge that is
required for proof of possession. To the Court of Appeal it must be knowledge of the
particular drug in question, in this case cannabis. The learned DPP understood the
learned trial judge to mean that the requisite knowledge need not be “as to the exact
nature or quality” of the drug, and maintained in this appeal that the learned trial
judge was right. The second aspect is the view of the Court of Appeal that other
inferences could be drawn from the respondent’s act of running away and throwing
the plastic bag than that he knew he was carrying cannabis, such as that he knew he
was carrying some other prohibited goods or that he became panicky when confronted
by men not in police uniform. To the learned DPP that was mere speculation on the
part of the Court of Appeal. Learned counsel for the respondent’s submission in this
appeal has been confined to those two aspects.
[9] The second aspect can be disposed of briefly. I think it is fanciful to say that the
respondent took flight and threw the plastic bag because he probably knew that he
was carrying some other prohibited goods. In the absence of any indication to the
contrary, the inference must be that he knew that he was carrying what he was in fact
carrying, namely, a prohibited drug. It is also in my judgment fanciful to admit the
probability that the appellant acted as he did because he became panicky when
confronted with men not in police uniform. If he had thought that they were, say,
robbers pretending to be police officers in order to rob him of his belongings, he would
have fled without throwing the plastic bag.
[10] As regards the first aspect, learned counsel for the respondent submitted that
this appeal by the Public Prosecutor revolved around the following “narrow question
of legal interpretation” which he framed in his written submission:
“For a Court to find an accused guilty for possession of dangerous

drugs i.e. 'actual possession’ as understood in criminal law without
the aid of the statutory presumption under section 37(d) of ‘deemed
possession’, must the prosecution prove beyond a reasonable doubt that
the accused had knowledge of the nature of the dangerous drugs (in
addition to having knowledge of the existence of the dangerous drugs)?”
[11] The question obviously arose from the learned trial judge’s finding that with
proof that the respondent had knowledge that there existed dangerous drugs in the
plastic bag, the prosecution did not also have to prove that the respondent had
knowledge of the “nature” of the drugs. Obviously, in framing the question, the
learned trial judge was construed as saying that to prove possession it is not
necessary to prove knowledge of the “nature” of the thing possessed. But it is clear to
me, after considering as a whole all that the learned trial judge said on the question of
knowledge, as I have set out, including what was said by him and by Yong Pung How
CJ in the passage reproduced from Mohd Farid, that was not what the learned trial
judge meant. What he meant was that with proof of knowledge that what was in the
plastic bag were dangerous drugs, the prosecution did not also have to prove that the
respondent knew what type of dangerous drugs they were or their name or exact
qualities. That was what he meant by the “nature” that the prosecution did not have
to prove knowledge of. He did not mean to say that the prosecution did not have to
prove knowledge of the “nature” of the drugs as dangerous drugs. That he did find the
prosecution had proved when he spoke of knowledge of the existence of dangerous
drugs in the plastic bag. He meant that the respondent knew that there were
dangerous drugs in the plastic bag or, in other words, that the respondent knew that
what the plastic bag contained were dangerous drugs. That was what the learned trial
judge meant when he said that the respondent “wanted to part possession with what
constituted the offence” and that it was “a clear indication of his guilty mind”. The
respondent had a guilty mind because he knew that he had dangerous drugs in his
possession.
[12] To the learned trial judge, therefore, for the prosecution to prove that the
respondent was in possession of cannabis the prosecution need only prove, as regards
knowledge, that the respondent had knowledge that what he was carrying were
dangerous drugs. The prosecution did not also have to prove that he knew that the
dangerous drugs were cannabis. Therefore once knowledge that the thing carried was
dangerous drugs was proved, possession of the particular drug, that is cannabis, was
proved. That was why the learned trial judge, while saying that proof by inference
“that the accused had knowledge of the existence of the dangerous drugs does not
suggest that he knew that it was cannabis”, nevertheless concluded “that the
inferences drawn from the direct evidence are sufficient to show that the accused had
possession of the cannabis”.
[13] I am sure that the learned trial judge was not unaware of the authorities, such
as those that I will be mentioning later, that say that possession in criminal law
requires knowledge of the nature of the thing possessed and that he was not
disagreeing with those authorities. In Mohd Farid, after the passage reproduced in his
judgment in the present case, he had said, at page 421 H-I,in reference to Director of
Public Prosecutions v Wishart Brooks [1974] AC 862 and Neo Koon Cheo v R [1959]
MLJ 47 , “Both these cases support the proposition that knowledge of the nature of
the drugs possessed can be inferred from the circumstances of the case”. He was
speaking of proof by inference of knowledge of “the nature of the drugs possessed”. I
think it is a matter of his understanding of what is meant by “nature of the drugs
possessed”. When he said in the present case that the prosecution did not have to
prove knowledge of the nature of the drugs he must have said it on a view of “nature”
as meaning name or type or exact qualities. But if “nature” means nature as a
dangerous drug, then, when he said that the accused had knowledge of the existence
of the dangerous drugs, which I understand to mean that the accused knew that there
were dangerous drugs in the plastic bag, the learned trial judge must be taken to be
saying, consistently with the authorities, that the prosecution did have to prove, and
did prove, knowledge of the nature of the dangerous drugs, but nature as dangerous
drugs.
[14] The “question of legal interpretation” that learned counsel for the respondent
posed is that of the meaning of the word “nature” in section 37(d). As to why the
meaning of a word in a statutory provision is relevant in this case that does not rely
on the provision, this became clear as oral submission progressed. The respondent’s
counsel contended that “nature” in section 37(d) means the particular type or name of
the dangerous drug. On that basis he argued that to prove actual possession in a case
that does not rely on the presumption in section 37(d), it must be proved that the
accused knew the name or type of the dangerous drug concerned – as being
knowledge of the “nature” of the drug – because if it were not so, the burden of
proving possession in a case that does not rely on the presumption would be lower
than that in a case that does. This is a fallacious argument. Even if, in a case that
does not rely on the presumption, the knowledge that is necessary to be proven as
knowledge of the nature of the drug is knowledge as to the name or actual type of the
drug, the burden on the prosecution in a case that relies on the presumption will
always be lower, because in such a case all that the prosecution would need to prove
is custody or control of the thing containing the dangerous drug.
[15] Learned counsel for the respondent submitted that the Dangerous Drugs Act
1952 being a penal statute, it should be construed strictly, and if there is any
ambiguity in the meaning of the word “nature” in section 37(d), the construction that
is in favour of the accused should be favoured. But he did not cite any authorities on
the meaning of the word “nature” in section 37(d), probably because there are none.
Instead he cited the following five authorities.
[16] In Tan Teck Chew v Public Prosecutor [2002] 2 MLJ 321 , K.C. Vohrah JCA
said in the Court of Appeal, at page 324 G-H, “There was of course no finding of
knowledge of heroin in the bag. The trial judge had to rely on s 37(d) . . . to infer as a
presumption that he knew of the nature of the heroin”, and, at page 326 H-I, he
spoke of the appellant failing to rebut the presumption in s 37(d) “that he knew that
what was contained in the bag was heroin”. That case cannot, by those statements,
be taken as authority for contending that “nature” in section 37(d) means the
particular type or name of the dangerous drug because the question of the meaning of
“nature” did not arise in that case. Since the dangerous drug that was the subject of
the charge in that case was heroin it was natural to speak of knowledge as knowledge
as to heroin. The same may be said of Taib bin Mohamad v Public Prosecutor
[2002] 3 MLJ 477 where K.C. Vohrah JCA said in the Court of Appeal, at page 480 H-
I, “ . . . the judge should only have called the accused to make his defence on the
charge of the possession of the cannabis based on the presumption under s 37(d) . . .
that he knew that [sic] nature of the drug . . . ”, and, at page 481 H-I, “ . . . his
defence . . . did not rebut the presumption of knowledge under s 37(d) . . . that he
knew the nature of the material he was carrying was cannabis”.
[17] In Chan Pean Leon v Public Prosecutor [1956] 22 MLJ 237 , the charge was
of assisting in carrying on a public lottery and the question of possession concerned
certain counterfoils. The case did not concern any statutory presumption of
possession. Speaking of the mens rea aspect of possession, Thomson J, at page 239
(upper right), said, “ . . . it is necessary to prove that the person in possession knows
the nature of the thing possessed” and added, as an example, “If . . . it was a lottery
document it must be proved that he knew it was a lottery document”. The latter
statement cannot be taken as authority for the proposition that in a drug case
possession requires proof of knowledge of the particular drug in respect of which the
accused is charged. That is because the statement does not involve the idea of a
particular type of lottery document. Lottery document was spoken of as a general
class, like dangerous drug. Applied to dangerous drug, that statement becomes
“If . . . it was a dangerous drug, it must be proved that he knew it was a dangerous
drug”, and not the type or name of the particular dangerous drug as well.
[18] A similar situation is to be found in Toh Ah Loh and Mak Thim v Rex [1949] 15
MLJ 54 . It was a case of possession of ammunition in ammunition boxes. Gordon-
Smith Ag. CJ said at page 55 that in order for possession to incriminate, the possessor
“must know the nature of the thing possessed” and that as regards the accused in
that case the jury must be satisfied that “he knew the boxes contained ammunition”.
The case concerned ammunition as a general class and not any particular type of
ammunition.
[19] Of the five cases relied on by learned counsel for the respondent in support of
his contention that “nature” in section 37(d) means the particular name or type of the
dangerous drug concerned, Toh Su Kuan v PP [2005] 3 CLJ 740 , a drug case, is the
only case which may be understood to rule that knowledge of the nature of the thing
possessed must be exact or specific knowledge. In that case the prosecution did not
rely on section 37(d) but sought to prove possession by evidence. The accused was
found to carry 356 packets of heroin concealed at various parts of his body. The
learned trial judge held that the manner in which the packets were concealed
indicated knowledge that the packets contained heroin. On appeal it was submitted on
behalf of the accused that from the manner in which the packets were concealed the
accused might be taken to have known that he was carrying some illicit substance but
not its precise nature. The Court of Appeal agreed and held that the accused ought
not to have been called to enter upon his defence. The Court of Appeal said, at page
746:
“In our judgment, the manner in which the packets were fastened to the
But it certainly does not prove that the appellant knew that the
packets contained heroin, the drug which forms the subject matter of
the charge. It follows from what we have said thus far that from the
totality of the evidence led by the prosecution that the vital
ingredient of mens rea possession required by s. 37(da)(i) had not been
established. On that ground alone the learned judge ought not to have
called the appellant to enter upon his defence. And this is a case
where the learned deputy took the position that this was either a case
of actual trafficking or no offence.”
That decision was relied on by the Court of Appeal in the present case.
[20] The learned DPP informed us that the Public Prosecutor’s appeal against that
decision had been withdrawn because the warrant of arrest against the accused, who
had been released following his success in the Court of Appeal, could not be executed.
In my judgment, the decision was, with respect, an erroneous decision. Nik Hashim
FCJ has also said so quite recently in Parlan bin Dadeh v Public Prosecutor [2008] 6
MLJ 19 .
[21] In my judgment, where possession of a dangerous drug is concerned, to prove

the element of guilty knowledge or mens rea the prosecution need only prove that the
accused knew the nature of the particular dangerous drug that he was in possession
of as a dangerous or prohibited drug. The prosecution need not also prove knowledge
as to the name, type or exact qualities of the dangerous drug. When the authorities
say that for proof of possession in criminal law it is necessary to prove that the
possessor knew the nature of the thing possessed, they mean knowledge of what the
thing essentially or basically is. I share the view of Taylor J, who said in Leow Nghee
Lim v Reg. [1956] 22 MLJ 28 , at page 31 (upper left), “Without at least general
knowledge there cannot be possession but there can be possession without full and
exact knowledge”.
[22] Not only is that, to my mind, a fair and just construction of what is meant by
knowledge of the nature of the thing possessed, but were the meaning to be as may
be inferred from the decision in Toh Su Kuan (supra), in cases of trafficking in a
dangerous drug where the prosecution seek to rely on the presumption of trafficking
by reason of possession of the requisite amount of the drug, such as the present and
many other cases that are likely to arise, where guilty knowledge can only be inferred
from circumstances, the accused will always be acquitted without their defence being
called because it will always be argued that while the circumstances show that they
knew they had in their possession a dangerous drug, the circumstances do not show
beyond reasonable doubt that they knew what type of drug it was or its name or
exact qualities, and it would be virtually impossible to defeat the argument. In my
judgment, therefore, the Court of Appeal erred in holding that the prosecution had to
prove that the respondent knew that what he was carrying was actually cannabis.
[23] As to the meaning of “nature” in section 37(d), I do not think it really matters
what the extent of the meaning is, because the presumption is rebuttable. The
moment custody or control of the thing containing the dangerous drug is established,
knowledge of the nature of the drug is presumed. If nature means only nature as a
dangerous drug, the accused is entitled to prove, if he can, that he did not know that
the contents of the thing he was in custody or control of were a dangerous drug. If, as
contended by learned counsel for the respondent, nature means only the name, type
or exact qualities of the dangerous drug, or if it means also that besides nature as a
dangerous drug, the accused is still entitled to prove, if he can, that he did not know
that the contents of the thing that he was in custody or control of were a dangerous
drug and it would inevitably follow that he did not know the name, type or exact
qualities of the dangerous drug.
[24] For the reasons that I have given I would allow the appeal, set aside the orders
of the Court of Appeal and confirm the conviction and sentence by the High Court.
Nurulhuda Nuraini bt Mohd Noor (Deputy Public Prosecutor, Jabatan Peguam

Negara) for the appellant
Edmund Bon Tai Soon (Nik Mohamed Ikhwan with him) (Chooi & Co) for the
respondent
LOAD-DATE: 03/09/2009
Source [Malayan Law Journal Unreporteds]
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Public Prosecutor v Reza Mohd Shah bin Ahmad Shah
[2009] 2 MLJ 490
CRIMINAL APPEAL NO 05–40 OF 2005(W)
ZAKI AZMI CHIEF JUSTICE, ABDUL AZIZ MOHAMAD AND HASHIM YUSOFF FCJJ
CATCHWORDS:
Criminal Law - Dangerous Drugs Act (Malaysia) - s 37(d) - Trafficking - Presumption
under s 37(d) of the Dangerous Drugs Act 1952 - Whether inference drawn from
direct evidence sufficient to show possession - Whether knowledge proved
Words and Phrases - ‘Nature’ - Whether ‘nature’ in s 37(d) of the Dangerous Drugs
Act 1952 required prosecution to prove respondent knew name or type of dangerous
drug concerned - Dangerous Drugs Act 1952 s 37(d)
HEADNOTES:
The accused/respondent was carrying in his right hand a plastic bag when he was
apprehended by a Police Inspector. However, when the Police Inspector who was
dressed in plain clothes shouted ‘police’, the respondent immediately started running
and threw away the plastic bag that he was carrying. Upon recovery, the said plastic
bag was found to contain 795.3g of cannabis, the dangerous drug. The respondent
was thereafter charged with the offence of trafficking in 795.3g of cannabis. At the
trial the prosecution relied on the evidence of actual knowledge to prove the element
of knowledge that is necessary for possession in criminal law and did not choose to
rely on the presumption of knowledge in s 37(d) of the Dangerous Drugs Act 1952
(‘the Act’). The respondent’s defence was in the nature of a bare denial. At the close
of the trial, the respondent was convicted and sentenced to death by the High Court
for the offence of trafficking. In his judgment the trial judge stated that the fact that
the respondent was carrying the plastic bag with its contents followed by the speed at
which he ran and threw it upon being confronted showed that there was a clear nexus
between his conduct and the offence in question ie that he wanted to part possession
with what constituted the offence. The trial judge therefore concluded that the
inferences drawn from the direct evidence were sufficient to show that the accused
had possession of the cannabis and since he failed to rebut the statutory presumption
of trafficking under s 37(da) the prosecution had proved its case beyond reasonable
doubt. The respondent appealed to the Court of Appeal, which took the view that the
prosecution had to prove knowledge of the particular [*491] drug in question, which
in this case was cannabis, and that just because the respondent took flight and threw
the plastic bag containing the dangerous drugs did not point to the one and only
conclusion that he knew that what he was carrying was the dangerous drug, cannabis.
Based on this the Court of Appeal found that the prosecution had failed to prove
actual knowledge but the court had recourse to the presumption of knowledge in s
37(d) and found the respondent guilty of possession under s 6 of the Act. This was the
prosecution’s appeal against that decision by the Court of Appeal. This appeal
revolved on the issue as to whether the respondent, without the aid of the statutory
presumption under s 37(d) of the Act of ‘deemed possession’ had knowledge of the
nature of the dangerous drugs.
Held, allowing the appeal and restoring the conviction and sentence imposed by the
High Court:
(1) (per Abdul Aziz Mohamad FCJ) There were two aspects to the
judgment of the Court of Appeal as regards to knowledge. The first
aspect was that it must be knowledge of the particular drug in
question, in this case cannabis; while the second aspect was that other
inferences could be drawn from the respondent’s act of running from the
police and throwing away the plastic bag of cannabis such that he knew
he was carrying some other prohibited goods or that he became panicky
when confronted by men not in police uniform. The second aspect could
be disposed by the fact that in the absence of any indication to the
contrary, the inference must be that he knew he was in fact carrying,
namely a prohibited drug. In addition, if he knew that they were say
robbers pretending to be police officers in order to rob him he would
have fled without throwing the plastic bag (see paras 8–9).
(2) (per Abdul Aziz Mohamad FCJ) When the trial judge said that the
prosecution did not have to prove that the respondent had knowledge of
the ‘nature’ of the drugs, he meant that the prosecution did not have
to prove knowledge of the ‘nature’ of the drugs as dangerous drugs. He
meant that the respondent knew that there were dangerous drugs in the
plastic bag and that because of this knowledge the respondent had a
guilty mind. Therefore, according to the trial judge, for the
prosecution to prove that the respondent was in possession of cannabis
the prosecution needed to only prove, as regards knowledge, that the
respondent had knowledge that what he was carrying were dangerous
drugs. Thus, once knowledge that the thing carried was dangerous drugs
was proved, possession of the particular drug, ie cannabis, was proved
(see paras 11–12).
(3) (per Abdul Aziz Mohamad FCJ) Where possession of a dangerous drug
is concerned, to prove the element of guilty knowledge or mens rea
[*492] the prosecution need only prove that the accused knew the
nature of the particular dangerous drug that he was in possession of as
a dangerous or prohibited drug. The prosecution need not also prove
knowledge as to the name, type or exact qualities of the dangerous
drug. This is a fair and just construction of what is meant by
knowledge of the nature of the thing possessed and the Court of Appeal
erred in holding that the prosecution had to prove that the respondent
knew that what he was carrying was actually cannabis (see paras 14, 21–
22).
(4) (per Hashim Yusoff FCJ) The Court of Appeal erred in its finding
that on the facts of this case it could not be inferred that the
respondent did have the knowledge that what he possessed was the
dangerous drug, cannabis. The trial judge had correctly inferred that
the respondent, by his act of running away from the police and throwing
away the plastic bag, had showed that he knew the nature of the
contents of the said plastic bag to be cannabis. The trial judge had
also appropriately considered the defence advanced by the respondent
and gave his reasons why he rejected it (see paras 31, 34–35).
Tertuduh/responden sedang membawa di tangan kanannya satu beg plastik ketika

diberkas oleh seorang Inspektor Polis. Tetapi, apabila Inspektor Polis yang berpakaian
preman menjerit ‘polis’, responden dengan segera melarikan diri dan membuang beg
plastik yang sedang dibawanya. Apabila ditemui, beg plastik tersebut didapati
mengandungi 395.3g kanabis, dadah berbahaya. Responden kemudiannya didakwa
atas kesalahan mengedar 795.3g kanabis. Ketika perbicaraan pihak pendakwaan
bergantung kepada keterangan pengetahuan sebenar untuk membuktikan elemen
pengetahuan yang mana adalah penting bagi milikan di dalam undang-undang
jenayah dan tidak memilih untuk bergantung kepada anggapan pengetahuan di dalam
s 37(d) Akta Dadah Berbahaya 1952 (‘Akta’). Pembelaan responden adalah bersifat
penafian kosong. Di akhir perbicaraan, responden telah disabitkan dan dihukum mati
oleh Mahkamah Tinggi atas kesalahan mengedar. Di dalam penghakimannya, hakim
bicara menyatakan bahawa fakta bahawa responden membawa beg plastik bersama
dengan kandungannya diikuti dengan kepantasan ketika dia berlari dan
membuangnya apabila didatangi menunjukkan bahawa terdapat hubungan di antara
tindakannya dan kesalahan yang dipersoalkan iaitu bahawa dia hendak melepaskan
diri daripada barang yang membentuk kesalahan tersebut. Hakim bicara oleh itu
memutuskan bahawa inferens yang dibuat daripada keterangan terus adalah cukup
untuk membuktikan bahawa tertuduh mempunyai milikan kanabis dan oleh kerana
responden telah gagal untuk mematahkan anggapan statutori mengedar di bawah
s 37(da), pihak pendakwaan telah membuktikan kesnya melangkaui batas keraguan
yang munasabah. Responden merayu kepada [*493] Mahkamah Rayuan, yang
berpandangan bahawa pihak pendakwan perlu membuktikan pengetahuan terhadap
butiran dadah yang dipersoalkan, yang mana di dalam kes ini adalah kanabis, dan
hanya kerana responden melarikan diri dan membuang beg plastik yang mengandungi
dadah berbahaya tidak menunjukkan satu-satunya kesimpulan bahawa responden
mengetahui bahawa apa yang dibawanya adalah dadah berbahaya, kanabis.
Berdasarkan perkara ini Mahkamah Rayuan mendapati bahawa pihak pendakwaan
telah gagal untuk membuktikan pengetahuan sebenar tetapi mahkamah telah
menggunakan anggapan pengetahuan di dalam s 37(da) dan mendapati responden
bersalah atas milikan di bawah s 6 Akta. Ini adalah rayuan pihak pendakwaan
terhadap keputusan Mahkamah Rayuan. Rayuan ini berkisarkan atas isu sama ada
responden, tanpa bantuan anggapan statutori di bawah s 37(d) Akta ‘dianggap
memiliki’ mempunyai pengetahuan mengenai sifat dadah berbahaya tersebut.
Diputuskan, membenarkan rayuan dan mengekalkan sabitan dan hukuman yang

dikenakan oleh Mahkamah Tinggi:
(1) (oleh Abdul Aziz Mohamad HMP) Terdapat dua aspek penghakiman
Mahkamah Rayuan berkenaan dengan pengetahuan. Aspek pertama adalah
ianya mestilah pengetahuan butiran mengenai dadah yang dipersoalkan,
dalam kes ini adalah kanabis; sementara itu aspek kedua adalah inferens
lain yang boleh dilihat daripada tindakan responden yang lari daripada
polis dan membuang beg plastik kanabis dengan itu responden tahu yang
dia membawa barang larangan yang lain atau dia menjadi panik apabila
didatangi oleh lelaki yang tidak memakai pakaian seragam polis. Aspek
kedua boleh ditentukan dengan fakta bahawa dalam ketiadaan mana-mana
petunjuk kepada yang bertentangan, inferens mestilah bahawa responden
tahu bahawa dia sebenarnya membawa, dadah berbahaya. Selanjutnya, jika
responden mengetahui bahawa mereka adalah perompak yang menyamar
sebagai pegawai polis yang ingin merompaknya responden seharusnya
melarikan diri tanpa membuang beg plastik tersebut (lihat perenggan 8–9)
.
(2) (oleh Abdul Aziz Mohamad HMP) Apabila hakim bicara menyatakan
bahawa pihak pendakwaan tidak mempunyai bukti bahawa responden
mempunyai pengetahuan mengenai ‘sifat’ dadah, maksud beliau bahawa
pihak pendakwaan tidak perlu membuktikan pengetahuan berkenaan dengan ‘
sifat’ dadah sebagai dadah berbahaya. Beliau maksudkan bahawa responden
mengetahui bahawa terdapat dadah berbahaya di dalam beg plastik dan
disebabkan pengetahuan ini responden mempunyai minda bersalah. Oleh
itu, menurut hakim bicara, bagi pihak pendakwaan untuk membuktikan
bahawa responden [*494] adalah dalam milikan kanabis pihak
pendakwaan hanya perlu membuktikan, berkenaan dengan pengetahuan,
bahawa responden mempunyai pengetahuan bahawa apa yang dibawanya adalah
dadah berbahaya. Oleh itu, apabila pengetahuan bahawa barangan yang
dibawa adalah dadah berbahaya telah dibuktikan, milikan dadah tertentu
tersebut, iaitu kanabis telah dibuktikan (lihat perenggan 11–12)
(3) (oleh Abdul Aziz Mohamad HMP) Di mana berkenaan dengan milikan
dadah, untuk membuktikan elemen pengetahuan bersalah atau mens rea,
pihak pendakwaan hanya perlu membuktikan bahawa tertuduh mengetahui
sifat tertentu dadah berbahaya tersebut bahawa tertuduh adalah dalam
milikan dadah berbahaya atau dadah yang diharamkan. Pihak pendakwaan
juga tidak perlu membuktikan pengetahuan berkenaan dengan nama, jenis
atau kualiti sebenar dadah berbahaya. Ini adalah pentafsiran yang adil
dan saksama berkenaan dengan maksud pengetahuan sifat barangan yang
dimiliki dan Mahkamah Rayuan telah terkhilaf dalam memutuskan bahawa
pihak pendakwaan perlu membuktikan bahawa responden tahu bahawa apa
yang dibawanya adalah kanabis (lihat perenggan 14, 21–22).
(4) (oleh Hashim Yusoff HMP) Mahkamah Rayuan telah terkhilaf di dalam
keputusannya bahawa atas fakta kes ini ianya tidak boleh disimpulkan
bahawa responden mempunyai pengetahuan bahawa apa yang dimilikinya
adalah dadah berbahaya iaitu kanabis. Hakim bicara membuat kesimpulan
yang betul bahawa responden, dengan tindakannya melarikan diri daripada
polis dan membuang beg plastik telah menunjukkan bahawa dia mengetahui
sifat kandungan beg plastik tersebut adalah kanabis. Hakim bicara juga
dengan sewajarnya mempertimbangkan pembelaan yang dikemukakan oleh
responden dan memberikan alasan mengapa beliau menolaknya (lihat
perenggan 31, 34–35).
Notes
For cases on s 37(d) of the Dangerous Drugs Act, see 4 Mallal’s Digest (4th Ed, 2005
Cases referred to
Abdullah Zawawi bin Yusof v PP [1993] 3 MLJ 1, SC
Chan Pean Leon v PP [1956] MLJ 237, HC
Director of Public Prosecutions v Brooks (Wishart) [1974] AC 862, PC
Leow Nghee Lim v Reg [1956] MLJ 28, HC
Muhammed bin Hassan v PP [1998] 2 MLJ 273, FC
Neo Koon Cheo v R [1959] MLJ 47, HC
Parlan bin Dadeh v PP [2008] 6 MLJ 19, FC
PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401, HC
[*495]
PP v Phua Keng Tong [1986] 2 MLJ 279, HC
PP v Reza Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13, HC
Reza Mohd Shah bin Ahmad Shah v PP [2006] 2 MLJ 223; [2005] 4 CLJ 581, CA
Sim Teck Ho v PP [2000] 4 SLR 39, CA
Taib bin Mohamad v PP [2002] 3 MLJ 476, CA
Tan Teck Chew v PP [2002] 2 MLJ 321, CA
Toh Ah Loh and Mak Thim v Rex [1949] MLJ 54, CA
Toh Su Kuan v PP [2005] 3 CLJ 740, CA
Warner v Metropolitan Police Commissioner [1968] 2 All ER 356; [1969] 2 AC 256, HL
Dangerous Drugs Act 1952ss 6, 37(d), (da), 39A(2), B(2)
Drugs (Prevention of Misuse) Act 1964 [UK]
Appeal from: Criminal Appeal No W-05–34 of 2002 (Court of Appeal, Putrajaya)
Nurulhuda Nuraini bt Mohd Noor (Deputy Public Prosecutor, Attorney General’s

Chambers) for the appellant.
Edward Boon Tai Soon (Nik Mohamed Ikhwan with him) (Chooi & Co) for the
respondent.
Abdul Aziz Mohamad FCJ::
[1] In the High Court, the prosecution relied on evidence of actual knowledge to
prove the element of knowledge that is necessary for possession in criminal law. The
evidence relied on was that of the respondent, upon being aware of police presence,
when their leader shouted ‘Police!’, immediately running away and throwing the
plastic bag containing two packages of cannabis that he was carrying. The prosecution
did not choose to rely on the presumption of knowledge in s 37(d) of the Dangerous
Drugs Act 1952 (‘the Act’). That was because if they did, then, by reason of this
court’s decision in Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273,
they would not have been able to rely also on the presumption of trafficking in s
37(da), arising from possession of the requisite amount of drug.
[2] The presumption of knowledge in s 37(d) is in the following terms:
(d) any person who is found to have had in his custody or under his
control anything whatsoever containing any dangerous drug shall, until
the contrary is proved, be deemed to have been in possession of such
drug and shall, until the contrary is proved, be deemed to have known
the nature of such drug.
[*496]
[3] The judgment of the High Court is reported as Public Prosecutor v Reza
Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13. This is what the learned trial judge
said at p 23C –F:
The fact that the accused was carrying (the plastic bag) with its
contents followed by the speed at which he ran and threw it upon being
the dangerous drugs in (the plastic bag)… The inference drawn in this
case that the accused had knowledge of the existence of the dangerous
drugs does not suggest that he knew that it was cannabis. With regard
to the extent and nature of knowledge of the dangerous drugs that the
prosecution must prove, I consider it necessary to reproduce what I had
said in Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor at
pp 420–421.
[4] There follows the passage reproduced from, Public Prosecutor v Mohd Farid
bin Mohd Sukis & Anor [2002] 3 MLJ 401, in which the learned trial judge began by
saying, ‘It must be observed that in proving this element (of knowledge) the
obligation of the prosecution is only to establish that the accused had knowledge … of
the existence of the dangerous drug but not its qualities’. He then quoted a passage
from the Singapore case of Sim Teck Ho v Public Prosecutor [2000] 4 SLR 39, at pp
42–43, where Yong Pung How CJ after quoting a passage from the speech of Lord
Pearce in Warner v Metropolitan Police Commissioner [1969] 2 AC 256, at p 305,
concluded that, as regards knowledge, proof of possession requires proof of
‘knowledge of the existence of the thing itself, that is the existence of the controlled
drug, but not the name nor nature of the drug’.
[5] Then following the end of the passage reproduced from Mohd Farid, the learned
trial judge said, ‘Thus, it is not necessary for the prosecution to prove that the
accused had knowledge of the nature of the drugs. It follows that the inferences
drawn from the direct evidence are sufficient to show that the accused had possession
of the cannabis’.
[6] The grounds of judgment of the Court of Appeal are reported as Reza Mohd
Shah bin Ahmad Shah v Public Prosecutor [2006] 2 MLJ 223; [2005] 4 CLJ 581. The
Court of Appeal took the view that the prosecution had to prove knowledge of the
particular drug in question, that is cannabis, and said at p 585d–e that ‘the issue is
whether the appellant had the knowledge that he was carrying cannabis’. The Court of
Appeal arrived at the following conclusion at p 587g–h:
But in our view, just because the appellant took flight and threw the
plastic bag containing dangerous drug does not point to one and only
conclusion that he knew what he was carrying was the dangerous drug,
cannabis. In the [*497] circumstances, other inferences can be
made such as that he did so because he may be carrying any other
prohibited goods other than cannabis or that he was panicky and
therefore chose to run away and throw out the bag he was carrying more
so, in this case, when the police who confronted him were not in
uniform.
[7] The Court of Appeal therefore found that the prosecution had failed to prove
actual knowledge but the court had recourse to the presumption of knowledge in s
37(d) and found the respondent guilty of possession under s 6 of the Act. Recourse
being had to the presumption in s 37(d), it was not possible, because of Muhammed
bin Hassan, to also have recourse to the presumption of trafficking in s 37(da).
[8] There are two aspects to the judgment of the Court of Appeal as regards
knowledge. The first aspect is regarding the type or extent of knowledge that is
required for proof of possession. To the Court of Appeal it must be knowledge of the
particular drug in question, in this case cannabis. The learned DPP understood the
learned trial judge to mean that the requisite knowledge need not be ‘as to the exact
nature or quality’ of the drug, and maintained in this appeal that the learned trial
judge was right. The second aspect is the view of the Court of Appeal that other
inferences could be drawn from the respondent’s act of running away and throwing
the plastic bag than that he knew he was carrying cannabis, such as that he knew he
was carrying some other prohibited goods or that he became panicky when confronted
by men not in police uniform. To the learned DPP that was mere speculation on the
part of the Court of Appeal. Learned counsel for the respondent’s submission in this
appeal has been confined to those two aspects.
[9] The second aspect can be disposed of briefly. I think it is fanciful to say that the
respondent took flight and threw the plastic bag because he probably knew that he
was carrying some other prohibited goods. In the absence of any indication to the
contrary, the inference must be that he knew that he was carrying what he was in fact
carrying, namely, a prohibited drug. It is also in my judgment fanciful to admit the
probability that the appellant acted as he did because he became panicky when
confronted with men not in police uniform. If he had thought that they were, say,
robbers pretending to be police officers in order to rob him of his belongings, he would
have fled without throwing the plastic bag.
[10] As regards the first aspect, learned counsel for the respondent submitted that
this appeal by the public prosecutor revolved around the following ‘narrow question
of legal interpretation’ which he framed in his written submission:
[*498]
For a court to find an accused guilty for possession of dangerous drugs

ie ‘actual possession’ as understood in criminal law without the aid of
the statutory presumption under s 37(d) of ‘deemed possession’, must
the prosecution prove beyond a reasonable doubt that the accused had
knowledge of the nature of the dangerous drugs (in addition to having
knowledge of the existence of the dangerous drugs)?
[11] The question obviously arose from the learned trial judge’s finding that with
proof that the respondent had knowledge that there existed dangerous drugs in the
plastic bag, the prosecution did not also have to prove that the respondent had
knowledge of the ‘nature’ of the drugs. Obviously, in framing the question, the learned
trial judge was construed as saying that to prove possession it is not necessary to
prove knowledge of the ‘nature’ of the thing possessed. But it is clear to me, after
considering as a whole all that the learned trial judge said on the question of
knowledge, as I have set out, including what was said by him and by Yong Pung How
CJ in the passage reproduced from Mohd Farid, that was not what the learned trial
judge meant. What he meant was that with proof of knowledge that what was in the
plastic bag were dangerous drugs, the prosecution did not also have to prove that the
respondent knew what type of dangerous drugs they were or their name or exact
qualities. That was what he meant by the ‘nature’ that the prosecution did not have to
prove knowledge of. He did not mean to say that the prosecution did not have to
prove knowledge of the ‘nature’ of the drugs as dangerous drugs. That he did find the
prosecution had proved when he spoke of knowledge of the existence of dangerous
drugs in the plastic bag. He meant that the respondent knew that there were
dangerous drugs in the plastic bag or, in other words, that the respondent knew that
what the plastic bag contained were dangerous drugs. That was what the learned trial
judge meant when he said that the respondent ‘wanted to part possession with what
constituted the offence’ and that it was ‘a clear indication of his guilty mind’. The
respondent had a guilty mind because he knew that he had dangerous drugs in his
possession.
[12] To the learned trial judge, therefore, for the prosecution to prove that the
respondent was in possession of cannabis the prosecution need only prove, as regards
knowledge, that the respondent had knowledge that what he was carrying were
dangerous drugs. The prosecution did not also have to prove that he knew that the
dangerous drugs were cannabis. Therefore once knowledge that the thing carried was
dangerous drugs was proved, possession of the particular drug, that is cannabis, was
proved. That was why the learned trial judge, while saying that proof by inference
‘that the accused had knowledge of the existence of the dangerous drugs does not
suggest that he [*499] knew that it was cannabis’, nevertheless concluded ‘that the
inferences drawn from the direct evidence are sufficient to show that the accused had
possession of the cannabis’.
[13] I am sure that the learned trial judge was not unaware of the authorities, such
as those that I will be mentioning later, that say that possession in criminal law
requires knowledge of the nature of the thing possessed and that he was not
disagreeing with those authorities. In Mohd Farid, after the passage reproduced in his
judgment in the present case, he had said, at p 421H –I, in reference to Director of
Public Prosecutions v Wishart Brooks [1974] AC 862 and Neo Koon Cheo v R [1959]
MLJ 47, ‘Both these cases support the proposition that knowledge of the nature of the
drugs possessed can be inferred from the circumstances of the case’. He was speaking
of proof by inference of knowledge of ‘the nature of the drugs possessed’. I think it is
a matter of his understanding of what is meant by ‘nature of the drugs possessed’.
When he said in the present case that the prosecution did not have to prove
knowledge of the nature of the drugs he must have said it on a view of ‘nature’ as
meaning name or type or exact qualities. But if ‘nature’ means nature as a dangerous
drug, then, when he said that the accused had knowledge of the existence of the
dangerous drugs, which I understand to mean that the accused knew that there were
dangerous drugs in the plastic bag, the learned trial judge must be taken to be
saying, consistently with the authorities, that the prosecution did have to prove, and
did prove, knowledge of the nature of the dangerous drugs, but nature as dangerous
drugs.
[14] The ‘question of legal interpretation’ that learned counsel for the respondent
posed is that of the meaning of the word ‘nature’ in s 37(d). As to why the meaning of
a word in a statutory provision is relevant in this case that does not rely on the
provision, this became clear as oral submission progressed. The respondent’s counsel
contended that ‘nature’ in s 37(d) means the particular type or name of the
dangerous drug. On that basis he argued that to prove actual possession in a case
that does not rely on the presumption in s 37(d), it must be proved that the accused
knew the name or type of the dangerous drug concerned — as being knowledge of the
‘nature’ of the drug — because if it were not so, the burden of proving possession in a
case that does not rely on the presumption would be lower than that in a case that
does. This is a fallacious argument. Even if, in a case that does not rely on the
presumption, the knowledge that is necessary to be proven as knowledge of the
nature of the drug is knowledge as to the name or actual type of the drug, the burden
on the prosecution in a case that relies on the presumption will always be lower,
because in such a case all that the prosecution would need to prove is custody or
control of the thing containing the dangerous drug.
[*500]
[15] Learned counsel for the respondent submitted that the Dangerous Drugs Act
1952 being a penal statute, it should be construed strictly, and if there is any
ambiguity in the meaning of the word ‘nature’ in s 37(d), the construction that is in
favour of the accused should be favoured. But he did not cite any authorities on the
meaning of the word ‘nature’ in s 37(d), probably because there are none. Instead he
cited the following five authorities.
[16] In Tan Teck Chew v Public Prosecutor [2002] 2 MLJ 321, KC Vohrah JCA said
in the Court of Appeal, at p 324G –H, ‘There was of course no finding of knowledge of
heroin in the bag. The trial judge had to rely on s 37(d) … to infer as a presumption
that he knew of the nature of the heroin’, and, at p 326H –I, he spoke of the appellant
failing to rebut the presumption in s 37(d) ‘that he knew that what was contained in
the bag was heroin’. That case cannot, by those statements, be taken as authority for
contending that ‘nature’ in s 37(d) means the particular type or name of the
dangerous drug because the question of the meaning of ‘nature’ did not arise in that
case. Since the dangerous drug that was the subject of the charge in that case was
heroin it was natural to speak of knowledge as knowledge as to heroin. The same may
be said of Taib bin Mohamad v Public Prosecutor [2002] 3 MLJ 476 where KC
Vohrah JCA said in the Court of Appeal, at p 480H –I, ‘… the judge should only have
called the accused to make his defence on the charge of the possession of the
cannabis based on the presumption under s 37(d) … that he knew that (sic) nature of
the drug …’, and, at p 481H –I, ‘… his defence … did not rebut the presumption of
knowledge under s 37(d) … that he knew the nature of the material he was carrying
was cannabis’.
[17] In Chan Pean Leon v Public Prosecutor [1956] MLJ 237, the charge was of
assisting in carrying on a public lottery and the question of possession concerned
certain counterfoils. The case did not concern any statutory presumption of
possession. Speaking of the mens rea aspect of possession, Thomson J at p 239
(upper right), said, ‘… it is necessary to prove that the person in possession knows the
nature of the thing possessed’ and added, as an example, ‘If … it was a lottery
document it must be proved that he knew it was a lottery document’. The latter
statement cannot be taken as authority for the proposition that in a drug case
possession requires proof of knowledge of the particular drug in respect of which the
accused is charged. That is because the statement does not involve the idea of a
particular type of lottery document. Lottery document was spoken of as a general
class, like dangerous drug. Applied to dangerous drug, that statement becomes ‘If … it
was a dangerous drug, it must be proved that he knew it was a dangerous drug’, and
not the type or name of the particular dangerous drug as well.
[*501]
[18] A similar situation is to be found in Toh Ah Loh and Mak Thim v Rex [1949] MLJ
54. It was a case of possession of ammunition in ammunition boxes. Gordon-Smith Ag
CJ said at p 55 that in order for possession to incriminate, the possessor ‘must know
the nature of the thing possessed’ and that as regards the accused in that case the
jury must be satisfied that ‘he knew the boxes contained ammunition’. The case
concerned ammunition as a general class and not any particular type of ammunition.
[19] Of the five cases relied on by learned counsel for the respondent in support of
his contention that ‘nature’ in s 37(d) means the particular name or type of the
dangerous drug concerned, Toh Su Kuan v Public Prosecutor [2005] 3 CLJ 740, a
drug case, is the only case which may be understood to rule that knowledge of the
nature of the thing possessed must be exact or specific knowledge. In that case the
prosecution did not rely on s 37(d) but sought to prove possession by evidence. The
accused was found to carry 356 packets of heroin concealed at various parts of his
body. The learned trial judge held that the manner in which the packets were
concealed indicated knowledge that the packets contained heroin. On appeal it was
submitted on behalf of the accused that from the manner in which the packets were
concealed the accused might be taken to have known that he was carrying some illicit
substance but not its precise nature. The Court of Appeal agreed and held that the
accused ought not to have been called to enter upon his defence. The Court of Appeal
said, at p 746:
In our judgment, the manner in which the packets were fastened to the
But it certainly does not prove that the appellant knew that the
packets contained heroin, the drug which forms the subject matter of
the charge. It follows from what we have said thus far that from the
totality of the evidence led by the prosecution that the vital
ingredient of mens rea possession required by s 37(da)(i) had not been
established. On that ground alone the learned judge ought not to have
called the appellant to enter upon his defence. And this is a case
where the learned deputy took the position that this was either a case
of actual trafficking or no offence.
That decision was relied on by the Court of Appeal in the present case.
[20] The learned DPP informed us that the public prosecutor’s appeal against that
decision had been withdrawn because the warrant of arrest against the accused, who
had been released following his success in the Court of Appeal, could not be executed.
In my judgment, the decision was, with respect, an erroneous decision. Nik Hashim
FCJ has also said so quite recently in Parlan bin Dadeh v Public Prosecutor [2008] 6
MLJ 19.
[*502]
[21] In my judgment, where possession of a dangerous drug is concerned, to prove

the element of guilty knowledge or mens rea the prosecution need only prove that the
accused knew the nature of the particular dangerous drug that he was in possession
of as a dangerous or prohibited drug. The prosecution need not also prove knowledge
as to the name, type or exact qualities of the dangerous drug. When the authorities
say that for proof of possession in criminal law it is necessary to prove that the
possessor knew the nature of the thing possessed, they mean knowledge of what the
thing essentially or basically is. I share the view of Taylor J who said in Leow Nghee
Lim v Reg [1956] MLJ 28, at p 31 (upper left), ‘Without at least general knowledge
there cannot be possession but there can be possession without full and exact
knowledge’.
[22] Not only is that, to my mind, a fair and just construction of what is meant by
knowledge of the nature of the thing possessed, but were the meaning to be as may
be inferred from the decision in Toh Su Kuan, in cases of trafficking in a dangerous
drug where the prosecution seek to rely on the presumption of trafficking by reason of
possession of the requisite amount of the drug, such as the present and many other
cases that are likely to arise, where guilty knowledge can only be inferred from
circumstances, the accused will always be acquitted without their defence being called
because it will always be argued that while the circumstances show that they knew
they had in their possession a dangerous drug, the circumstances do not show beyond
reasonable doubt that they knew what type of drug it was or its name or exact
qualities, and it would be virtually impossible to defeat the argument. In my
judgment, therefore, the Court of Appeal erred in holding that the prosecution had to
prove that the respondent knew that what he was carrying was actually cannabis.
[23] As to the meaning of ‘nature’ in s 37(d), I do not think it really matters what
the extent of the meaning is, because the presumption is rebuttable. The moment
custody or control of the thing containing the dangerous drug is established,
knowledge of the nature of the drug is presumed. If nature means only nature as a
dangerous drug, the accused is entitled to prove, if he can, that he did not know that
the contents of the thing he was in custody or control of were a dangerous drug. If, as
contended by learned counsel for the respondent, nature means only the name, type
or exact qualities of the dangerous drug, or if it means also that besides nature as a
dangerous drug, the accused is still entitled to prove, if he can, that he did not know
that the contents of the thing that he was in custody or control of were a dangerous
drug and it would inevitably follow that he did not know the name, type or exact
qualities of the dangerous drug.
[*503]
[24] For the reasons that I have given I would allow the appeal, set aside the orders
of the Court of Appeal and confirm the conviction and sentence by the High Court.
Hashim Yusoff FCJ::
[25] The respondent was convicted and sentenced to death by the High Court for an
offence of trafficking 795.3g of cannabis. On appeal, the Court of Appeal substituted
the conviction under s 39B(2) of the Act with one under s 6 of the Act and imposed a
sentence of 18 years imprisonment with effect from his date of arrest ie 14 August
2000, plus the minimum of ten strokes of whipping under s 39A(2) of the Act. The
public prosecutor is now appealing against the decision of the Court of Appeal.
[26] The brief facts are quite straight forward. The respondent was seen by
Inspector Mohamad Alpiyang bin Ali (‘PW2 ’) carrying in his right hand exh P3 (‘P3’), a
plastic bag for some distance. When PW2 shouted ‘police’, the respondent
immediately ran and was seen throwing exh P3 away. Upon recovery of exh P3 by
PW2, it was found to contain the offending 795.3g of cannabis.
[27] The crux of this appeal revolves on the issue whether the accused/respondent,
without the aid of the statutory presumption under s 37(d) of the Act of ‘deemed
possession’ had knowledge of the nature of the dangerous drugs.
[28] The learned DPP submitted that the Court of Appeal was of the view that just
because the respondent took flight and threw the plastic bag containing the
dangerous drugs did not point to the one and only conclusion that he knew what he
was carrying was the dangerous drug, cannabis. In the circumstances, other
run away and throw away the bag he was carrying more so, in this case, when the
police who confronted him were not in uniform (see para 11 of the grounds of
judgment of the Court of Appeal).
[29] It is the learned DPP’s submission that the prosecution is not relying on s 37(d)
of the Act for the presumption of knowledge against the respondent. The prosecution
is basing its case simply on the conduct of the respondent which offers no other
explanation but that he knew he was carrying dangerous drugs.
[*504]
[30] Learned counsel for the respondent however submitted that the trial judge
found that ‘it is not necessary for the prosecution to prove that the accused had
direct evidence are sufficient to show that the accused had possession of the cannabis’
(see pp 22–23 of the appeal record). He then referred to several local authorities
which have interpreted that ‘actual possession’ requires proof that the possessor must
have known the nature of the drug which was being carried (see Tan Teck Chew v PP
[2002] 2 MLJ 321; Taib bin Mohamed v PP [2002] 3 MLJ 476, at pp 480–481 and Toh
Su Kuan v Public Prosecutor [2005] 3 CLJ 740, at pp 744–745.
[31] In the instant appeal, the learned trial judge had said in his grounds of
judgment (at p 11 of the appeal record) that, relying on the case of Public
Prosecutor v Phua Keng Tong [1986] 2 MLJ 279, as proof of knowledge is very often
a matter of inference, the conduct of the respondent prior to his arrest is brought into
sharp focus. The fact that the accused was carrying exh P3 with its contents followed
by the speed at which he ran and threw it upon being confronted by the police, show
that there is a clear nexus between his conduct and the offence in question ie that he
wanted to part possession with what constituted the offence. It is a clear indication of
his guilty mind. This is sufficient to infer that the accused had knowledge of the
existence of the dangerous drugs in exh P3. I agree with the learned trial judge on
this point.
[32] In the case of Warner v Metropolitan Police Commissioner [1968] 2 All ER 356,
the appellant was tried on a charge that he had in his possession a substance
specified in the schedule to the Drugs (Prevention of Misuse) Act 1964 namely 20,000
tablets containing amphetamine sulphate. Lord Reid at p 367, had this to say: ‘Further
it would be pedantic to hold that it must be shown that the accused knew precisely
which drugs he had in his possession. Ignorance of the law is no defence and in fact
virtually everyone knows that there are prohibited drugs. So it would be quite
sufficient to prove facts from which it would properly be inferred that the accused
knew that he had a prohibited drug in his possession’.
[33] The case of Abdullah Zawawi bin Yusof v Public Prosecutor [1993] 3 MLJ 1 is
distinguishable because in that case the appellant took to his heels as soon as he had
heard DPC Mohd Hashim’s announcement of the discovery of the wooden box
containing a plastic bag wherein the cannabis was found. In the instant appeal, the
respondent already threw the plastic bag (P3) away even before its cannabis contents
were discovered by the police.
[34] I am also unable to agree with the Court of Appeal on its finding that on the
facts of this case, that it could not be inferred the respondent did have the knowledge
that what he possessed was the dangerous drug, cannabis for [*505] reasons as
stated earlier above. Clearly on the evidence before the trial judge, the respondent
was in possession and having custody and control of the plastic bag which contained
the cannabis. His running away and throwing away the plastic bag (P3) are the overt
acts from which the learned trial judge had correctly inferred that the respondent
knew the nature of the contents of the said plastic bag (P3) to be cannabis. The
learned trial judge also came to the conclusion that the respondent’s defence was in
the nature of a bare denial and doubted the credibility of his evidence that he was not
carrying exh P3. As such he was unable to accept the defence advanced by the
respondent that PW2 was not at the scene as PW2 was cross-examined at length on
the basis that he was at the scene.
[35] The learned trial judge had appropriately considered the defence and gave his
reasons why he had rejected it. The statutory presumption of trafficking under s
37(da) is applicable in this case as the amount of cannabis is more than 200g in
weight. The respondent was also held by the trial judge to have failed to rebut the
said presumption against him and that the prosecution had proved its case, beyond
reasonable doubt.
[36] On the evidence available in this case I am of the view that the Court of Appeal
had erred in disturbing the findings of facts by the trial judge. For the reasons
adumbrated above, I therefore allow this appeal and set aside the order of the Court
of Appeal and restore the conviction and sentence imposed by the High Court.
ORDER:
Appeal allowed. Court of Appeal order set aside. High Court’s conviction and sentence
affirmed.
LOAD-DATE: 04/10/2009

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The Malayan Law Journal

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HAIRUL DIN BIN ZAINAL ABIDIN v PUBLIC PROSECUTOR

[2004] 1 MLJ 539

CRIMINAL APPEAL NO W–05–8 OF 2001

COURT OF APPEAL (KUALA LUMPUR)

DECIDED-DATE-1: 23 SEPTEMBER 2003

MOKHTAR SIDIN, MOHD SAARI AND ABDUL AZIZ MOHAMAD JJCA

[Bahasa Malaysia summary

Diputuskan, menolak rayuan dan mengesahkan sabitan dan hukuman:

Mokhtar Sidin JCA:

[1] (delivering judgment of the court):

(ii) in a case of trafficking, as in this case, knowledge of possession of

The plea in mitigation of the accused consisted of a mere statement of

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Date/Time October 12 2009 02:18:54

© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal

TEH GEOK HOCK V PUBLIC PROSECUTOR

[1989] 3 MLJ 162

CRIMINAL APPEAL NO 72 OF 1987

SUPREME COURT (KUALA LUMPUR)

DECIDED-DATE-1: 21 JULY 1989

Evidence - Presumption - Burden on accused to rebut - Dangerous Drugs Act 1952, ss

Words and Phrases - 'Trafficking' - Dangerous Drugs Act 1952, s 2

Held, dismissing the appeal:

Misuse of Drugs Act (Cap 185, 1985 Ed) [Sing]

Sidney Augustin ( K Siva Segara with him) for the appellant.

Ng Aik Guan (Deputy Public Prosecutor) for the respondent.

Ng Aik Guan (Deputy Public Prosecutor) for the respondent.

JUDGMENTBY: HASHIM YEOP A SANI CJ (MALAYA)

LOAD-DATE: June 3, 2003

Source [Malayan Law Journal]

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Date/Time October 12 2009 02:26:33

The Malayan Law Journal

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PUBLIC PROSECUTOR v YAP FOOK CHOY

[2004] 4 MLJ 304

CRIMINAL TRIAL NO 47–04 OF 2001

HIGH COURT (KOTA KINABALU)

DECIDED-DATE-1: 14 JUNE 2004

Criminal Law - Dangerous Drugs Act (Malaysia) - s 37(da) - Trafficking - Weight of

Evidence - Expert evidence - Chemist’s analysis of substance - Chemist blended

[Bahasa Malaysia summary

Diputuskan, mendapati tertuduh bersalah, menyabit beliau mengedar dadah dan

Norliza Yusoff (Attorney-General’s Chambers) for the prosecution.

That you, on 17 April 2001 at around 2.30pm, in front of Choon Nyen

Case of the Prosecution

The Evidence of the Chemist

‘The purpose of blending the white crystallized substance is to make it

[27] 26 After the existence of Methamphetamine has been established, a

Analysis and Testing Guidelines for Methamphetamine.

Evidence of other Prosecution Witnesses

(i) to testify on oath and subject himself to cross examination;

(iii) to remain silent.

[44] 43 The accused chose to give evidence on oath.

Evaluation of the Evidence of Defence Witnesses

The Existence or Non-existence of ‘Lau Yeh’

‘Apabila saya berada di kawasan berdekatan dengan Maybank (sic)

[80] His reply from line 65 of p 4 to line 3 of p 5 (D1) which says:

[85] 83 As regards the motorcycle plate number of SA 4019 allegedly owned by

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