Public Prosecutor v Ong Teck Huat [1993] 2 SLR 645 High Court, Singapore (Y

The appellant pleaded guilty in the district court to a charge under s 57(1)(c) of the Immigration Act (Cap 133, 1995 Ed) of engaging in the business of conveying into Singapore, on a motor vehicle, an Indian national whom he knew or had reasonable grounds for believing to be a prohibited immigrant. The appellant was convicted on his plea of guilt and sentenced to two years' imprisonment as well as three strokes of the cane - a sentence which the district judge said was the mandatory minimum punishment for an offence under s 57(1)(c). The appellant appealed against the sentence on the ground that the district judge had erred in regarding it as the mandatory minimum punishment. The appellant also applied for criminal revision on three broad grounds. He argued firstly, that the prosecution had failed to prove that he engaged in the business of conveying a prohibited immigrant since they (the prosecution) had not shown more than a single, isolated act of conveyance on his part, or some element of system and continuity in his conduct. Secondly, he argued that the prosecution had failed to specify expressly in the charge their reliance on the presumption provided for in s 57(6) of the Immigration Act; and that such an omission rendered his plea of guilt equivocal. Finally, he contended that he could have in any event rebutted this presumption even on the basis of the prosecution's own evidence.

Held, dismissing the appeal: (1) counsel for the appellant was wrong to say that the prosecution `must prove' more than a single act of conveyance by the appellant, or some element of system and continuity in his conduct. Under s 57(6) of the Immigration Act, once an accused was shown to have committed an act of conveying a prohibited immigrant to Singapore in a vehicle, he was presumed to have engaged in the business of conveying that immigrant knowing or having reasonable grounds to believe that he was a prohibited immigrant. In this case, the appellant's act of conveying the Indian national having been clearly set out in the statement of facts, the presumption came into effect and the onus shifted to the appellant to show that he was not engaged in the business of conveying prohibited immigrants to Singapore; (2) furthermore, the word `business' in s 57(1)(c) of the Immigration Act did not connote some sense of system and continuity in an accused's conduct; nor did it mean that an offence under s 57(1)(c) required the accused to have engaged in more than a single act of conveying a prohibited immigrant. The authority relied on by counsel for the appellant in this respect related to the Moneylenders Act (Cap 188) and was, having considered the the different objectives of each Act, not applicable in the context of the Immigration Act; (3) as to the appellant's argument that the statement of facts showed only one isolated act of conveyance and that he had, accordingly, rebutted the presumption in s 57(6) of the Immigration Act, this was to be rejected in view of the reasoning above; (4) as to the appellant's argument that the presumption should have been expressly stated in the charge, this was without merit: the presumption was no more than an evidentiary provision and did not, therefore, need to be stated in the charge. Moreover, the charge and the statement of facts had clearly been read and interpreted to the appellant when he appeared in the district court, and the district judge convicted him after he had indicated his understanding of the nature and consequences of his plea of guilt. There were no grounds, therefore, for the claim that the appellant's plea was equivocal; (5) as to the appeal against sentence, it was plain from the provisions of s 57(1)(iii) in the 1995 edition of the Immigration Act that two years' imprisonment and three strokes of the cane constituted the mandatory minimum punishment for an offence under s 57(1)(c).

Shekhar a/l Subramaniam v Public Prosecutor [1997] 2 SLR 744 High Court, Singapore (Yong Pung How CJ).

In this case, the appellant had been charged with the offence of abetment of incest by reason of affinity under s 156(5) of the Administration of Muslim Law Enactment 1956 ('the Enactment') of Perak. The allegation was that she had married her brother-in-law. The brother-in-law had been charged with two charges of incest under s 156(4) of the Enactment and had been found guilty and sentenced. It appeared that the appellant and her brother-in-law had earlier, under a statement to an official in the Religious Department, admitted the relationship as a result of which they had two children. The appellant at the trial had claimed that she had married a spirit who only turned human at night. After she was found guilty and sentenced to one year's imprisonment, she appealed to the Appeal Committee. Before the Appeal Committee, she alleged that she had been induced and persuaded by her brother-in-law and a witness to give evidence as she did.

Held, dismissing the appeal: (1) the question of inducement and persuasion was only raised at the appeal stage and therefore, the Appeal Committee held that there was no sufficient reason for the appeal to be allowed. The Appeal Committee held that there were no reasons to disturb the conviction and it was upheld; (2) in regard to sentence, the circumstances of the case warranted a heavy sentence and the appeal against sentence must be dismissed.

Pendakwa Raya v Noor Siah bte Ellyas [1990] 1 MLJ xiv Appeal Committee of the Syariah Court, Ipoh (Dato Haji Abdul Malek J (Chairman).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

In this case, the accused had been charged with committing the offence of khalwat with a man. The man had been charged earlier and on his pleading guilty, had been released on a bond. The accused also pleaded guilty but was sentenced to a fine of RM500 or in default, two months' imprisonment. No statement of facts was laid before the court nor were the facts admitted to be correct by the accused. It appeared that the learned judge of the subordinate court could have been misled by the statement of the accused that she was a married woman. In fact, she was not married at the time of the offence but afterwards married the man with whom she was accused of committing khalwat. The accused appealed against the sentence.

Held, reducing the sentence: in the circumstances, the sentence was excessive and was reduced to a fine of RM250 or one month's imprisonment.

Bashirah bte Abdullah v Pendakwa Jabatan Agama Islam, Wilayah Persekutuan [1990] 2 MLJ xv Syariah Board of Appeal, Kuala Lumpur (Wan Hamzah bin Haji Wan Mohamed Salleh (Chairman).

The appellant was charged with the possession of arms and ammunition contrary to s 7(1)A of the Arms and Explosives Ordinance (Cap 196). The facts were that the police raided the house where the appellant lived. The house belonged to the wife of the appellant. When the police arrived, the appellant ran out and was not seen by the police again until about a week later. In the house were found arms and ammunition, some in a room, some in a kind of hall. The appellant's story was that the arms belonged to another man.

Held: if a person who occupies a house as head of the household knowingly allowed his house to be used for the storage of arms by another, that person comes within the terms of s 7(1)A of the Arms and Explosives Ordinance, even though the house in fact belongs to his wife.

Chu Chin Poh v R [1947] MLJ 196 High Court, Singapore (Murray-Aynsley CJ).

On 1 February 1990 at about 9.30pm four persons armed with guns rushed into Poh Heng Jewellers at Parkway Parade and stole a quantity of jewellery. The robbers wore ski-masks on their faces and were hence unrecognizable. The accused were arrested in March 1990 and the weapons used in the robbery were recovered together with part of the loot. They were charged with using or abetting the use of a firearm in the course of the robbery, an offence punishable with death. The main prosecution witness was the security guard at Parkway Parade. He gave evidence that one of the robbers shot at him and he saw a red spark coming. He identified the pistol used as a .32 Llama Automatic. Only the spent cartridges of a .45 Colt Automatic were recovered from the scene. The other prosecution witnesses at the scene testified that they observed one of the robbers firing at the ceiling. A bullet hole was in fact found in the ceiling of the shop. The prosecution expert testified that there would be no flash emerging from a pistol such as the .45 Colt Automatic. The accused persons' statements to the police were admitted in evidence. In his statement, the third accused admitted that he fired his pistol but claimed he fired at the ceiling. At the close of the prosecution case all the accused submitted that there was no prima facie case for them to answer.

Held, convicting the accused persons on a reduced charge of being in possession of a firearm during a robbery: (1) where a judge concludes that the prosecution evidence taken at its highest was such that a jury properly directed could not properly convict on it, it was his duty, on a submission being made, to stop the case. Where, however, the prosecution evidence was such that its strength or weakness depended on the view to be taken of a witness' reliability or other matters which were generally speaking within the jury's province and where on one possible view of the facts there was evidence on which the jury could properly conclude that the defendant was guilty, then the judge should allow the matter to be tried by the jury; (2) in the instant case the prosecution had to prove that the third accused discharged his firearm with an intention to cause physical injury to the security guard. The fact that no injury resulted was irrelevant. The intention was to be discerned from the observation and testimony of the witnesses and the statements of the third accused and/or circumstantially and must give rise to an irresistible inference of such intention; (3) the evidence of the other witnesses at the scene was that the robber who fired the shots did so in the direction of the ceiling; (4) the security guard identified the weapon used as the .32mm Llama Automatic. He said that it could not be the .45mm Colt. Yet the prosecution evidence was that the third accused carried and fired the .45mm Automatic; (5) the evidence of the other witnesses completely undermined the accuracy of the security guard's evidence. His evidence was reduced to little more than a heroic fantasy. In the circumstances, there was no evidence in respect of the allegation in the charge of an intention to cause injury to the security guard. No prima facie case had been made out against any of the accused persons; (6) the prosecution evidence was of a tenuous and confusing character because of its inherent weakness and vagueness, the presence of serious inconsistencies and contradictions and taken at its highest, was such that, if the case was being heard by a jury and if it was properly directed, the jury could not properly convict; (7) as the accused persons had admitted to committing the robbery and being armed with the firearms at the time, the charges were amended accordingly. The second and third accused pleaded guilty to this charge. The first accused claimed trial but elected to remain silent. He was convicted.

Public Prosecutor v Low Boon Tiong & Ors Criminal Case No 53 of 1992 High Court, Singapore (Amarjeet Singh JC).

The appellant was tried on two charges for using a revolver with intent to cause physical injury. He was convicted and sentenced to death. The evidence at the trial disclosed that on 15 February 1989, the appellant was riding in a taxi at Changi when he was approached by two officers. The appellant yelled to the officers, 'Don't force me.' He then put his hand in his left trouser pocket and drew a revolver. A shot was fired. The officers returned fire. The appellant escaped. The officers called in the police task force and a search was conducted of the immediate vicinity. The officers cornered the appellant at some high bushes near the Pan Island Expressway. One of the officers spotted the appellant and as the officer moved in he was shot in the chest over the sternum. As the officer was wearing a bullet-proof vest he was not hurt, but the impact of the shot caused him to lose consciousness. The assault party fired into the bush and the appellant was asked to surrender, to which the appellant replied 'Balls to you, I still have rounds left.' Shortly thereafter the appellant emerged from the bushes and fell into a drain. He dropped the revolver and was taken into custody. The appellant's statement was admitted in evidence after a voire dire. In it the appellant stated that he had shot at the first officers because they had fired at him first and injured him in the chest. He also said that when hiding in the bush he had shot at the torchlight held by the officer from the assault team. In his defence the appellant stated that he had no intention to cause physical injury to either of the officers. In respect of the first charge the appellant contended that he had shot at the officer with his left hand. If he had intended to cause injury to the officer he would have shot with his right hand as he is right handed. In respect of the second charge the appellant argued that he had fired a shot at the ground to frighten the pursuing officers.

Held, dismissing the appeal: (1) the trial judge found that the appellant missed hitting the officer probably because he was using his left hand. The appellant had never had any experience with revolvers. In his state of panic, the fact that he missed hitting a man who was only two feet away did not necessarily mean that he had no intention of aiming at and injuring that man. As to why he used his left hand instead of his right, it was accepted on the evidence that the revolver was inside his left trouser pocket and that he was sitting at the left rear side of the taxi. It would only be natural for him to use his left hand; (2) in respect of the second charge, by firing the shot in total disregard for the safety of the police officers whom he knew were coming from the direction of the light, the inference could be drawn that the appellant fired the shot with the intention of causing physical injury. The fact that he shot at the ground in the direction of the light must surely militate against his story that he was merely trying to frighten the officers. The fact that he could not see anyone and therefore could not have intentionally aimed at any specific individual was immaterial. When the appellant fired a shot in the direction of the group of police officers, knowing full well that the officers were there, he must be taken to have intended to cause physical injury to any person in that group.

Ong Yeow Tian v Public Prosecutor Criminal Appeal No 33 of 1992 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted and sentenced to death on two charges of using an arm with intent to cause injury. During an attempted robbery of Tin Sing Goldsmiths, there was an exchange of gunfire within the shop premises between two armed gunmen and Karamjit Singh, a CISCO constable on duty. Ou Kai San, a salesman, was shot at and injured by one of the gunmen. As the gunmen fled the scene, one of them fired a shot at Karamjit Singh wounding him in the right ankle. The same gunman who shot at Karamjit Singh hijacked a station wagon by firing two more shots on the road to frighten away the driver and passenger of the station wagon. Then, he made good his escape. His accomplice, however, collapsed and died at the scene of a chest injury. It was the prosecution's case that the appellant was the escaped gunman. At the close of the prosecution case, counsel declined to make a submission of no case and the trial judge called upon the appellant to enter his defence. The appellant's alibi was that he was staying in Taiping, Malaysia at the material time and was not involved in the shooting incidents. The trial judge disbelieved the defence and found that it was proved beyond reasonable doubt that the appellant shot at and injured both Karamjit Singh and Ou Kai San. Accordingly, the appellant was convicted. On appeal, counsel for the appellant contended that the test as set out in Haw Tua Tau v PP [1981] 2 MLJ 49 requiring a minimum review of the evidence at the close of the prosecution case should be reconsidered in the light of the Malaysian Supreme Court decision in Khoo Hi Chiang v PP [1994] 1 MLJ 265. The trial judge had erred in calling for the appellant's defence at the end of the prosecution case. Secondly, it was submitted that there was no direct identification of the appellant and that the evidence connecting him with the shooting incidents were all circumstantial.

Held, dismissing the appeal: (1) the test adopted by the Malaysian Supreme Court in Khoo Hi Chiang v P required a maximum evaluation of the evidence by the court such that the court would rule that a case beyond reasonable doubt had been made out against the defendant before calling his defence. It seems that the Malaysian Supreme Court laid emphasis on the words 'would warrant a conviction' thus ignoring the crucial words 'if unrebutted' within s 189(1) of the Criminal Procedure Code which dealt with the procedure to be followed at the close of the prosecution's case. Clearly, the provision called for a two-stage process in a criminal trial and this could only be achieved if a minimum evaluation of the evidence was made at the close of the prosecution's case. At that juncture, the question that the court had to ask itself is a purely hypothetical one, whether if it were to accept the prosecution's evidence, which is not inherently incredible, as accurate, the evidence would warrant the defendant's conviction. Therefore, the test as propounded in the Privy Council decision of Haw Tua Tau and applied in a line of Singapore cases remains the proper test applicable to s 189(1). From an evaluation of the evidence adduced by the prosecution, there was a prima facie case made out against the appellant on each of the charges. The trial judge had correctly called on the appellant to enter on his defence; (2) there was an unbroken chain of prosecution evidence which connected the shootings and the hijacking of the station wagon with the appellant. The two spent bullets which caused the injuries to Ou Kai San and to Karamjit Singh and the other two spent bullets found at the place where the station wagon was hijacked were identified to be Win 9mm Luger Parabellum bullets. These bullets could not have been fired from either Karamjit Singh's revolver or the accomplice's pistol. Instead, they were all fired by a third weapon used by the gunman who hijacked the station wagon. A partial fingerprint mark lifted from the abandoned station wagon was identified as being the imprint of the appellant's left little finger. This strong piece of identification evidence was not disputed on appeal. Moreover, the evidence of the accomplice's girlfriend and one of the ap-pellant's friend not only confirmed that the appellant, a Malaysian, was present in Singapore at the material time but also implicated him in other aspects. The prosecution evidence inexorably pointed to the appellant and to the appellant alone. From the surrounding circumstances, the appellant's intention to injure could also be gathered. In the premises, the trial judge's decision to accept the prosecution's evidence and reject the defence was justified. The charges against the appellant had been proved beyond reasonable doubt by the prosecution.

Ng Theng Shuang v Public Prosecutor [1995] 2 SLR 36 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

A was involved in a robbery. A's accomplices in the robbery were armed with pistols. In the course of the robbery, several rounds were discharged from the said pistols. A was charged and convicted under s 5 of the Arms Offences Act (Cap 14). A appealed on the grounds that the trial judges misdirected themselves in failing to consider whether, on a balance of probabilities, A had taken all steps to prevent the use of the firearms during the robbery.

Held, dismissing the appeal: (1) the trial judges had adequately considered the defence of A; (2) all A had done was to run away when shots were fired; (3) in order to show that he had 'taken all reasonable steps to prevent the use of such arm' an accused must do something to prevent the use of the arms by his accomplices. Just leaving the scene with the loot was not doing something to prevent the use of such arm.

Remli A Senallagam v Public Prosecutor [1992] 1 SLR 628 Court of Criminal Appeal, Singapore (Yong Pung How CJ, LP Thean and FA Chua JJ).

Talib bin Haji Hamzah v Public Prosecutor [1976] 2 MLJ 2 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 1650.

The two appellants in this case were jointly tried for armed robbery. The charge against the first appellant was for committing an offence punishable under s 4 of the Arms Offences Act 1973. The second appellant was charged as an accomplice, an offence punishable under s 5 of the said Act. One of the issues raised evolved around the scope of s 5 of the Arms Offences Act.

Held, dismissing the appeals: (1) it is not a requirement of s 5 of the Arms Offences Act that an accomplice, in the commission or attempted commission of a criminal offence, must be proved to have knowledge at the time he joins the principal that the latter is armed with a firearm; (2) what is required is proof that the accomplice may reasonably be presumed to have knowledge that the person who used the firearm in committing or attempting to commit an offence was either carrying it, or had it in his possession, or had it under his control during the commission or attempted commission of that offence; (3) the burden then shifts to the accomplice to prove that he had taken all reasonable steps to prevent the use by the principal offender of such firearm in the commission or attempted commission of that offence.

Chang Bock Eng & Anor v Public Prosecutor [1979] 2 MLJ 149 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, TS Sinnathuray and Choor Singh JJ).

Talib bin Haji Hamzah v Public Prosecutor [1976] 2 MLJ 2 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 1650.

Ang Chin Sang v Public Prosecutor [1970] 2 MLJ 6 High Court, Singapore (Wee Chong Jin CJ).

See CRIMINAL LAW, Vol 4, para 2018.

The accused was charged for being in possession of obscene films and for abetment thereof. It appeared that the films were seized when the premises were entered into by the police. It was submitted that the entry was not made in compliance with s 24(2) of the Cinematograph Films Ordinance and therefore the exhbits seized could not be produced in evidence. The learned magistrate held that the failure to comply with s 24 of the ordinance vitiated the trial and he discharged the accused.

Held: the fact that evidence was illegally obtained did not affect its admissibility and as the learned magistrate was wrong in discharging the respondents, there must be an order for retrial in the case.

Public Prosecutor v Foong Kow & Ors [1967] 1 MLJ 141 High Court, Ipoh (MacIntyre J).

The appellant was convicted of the offence of assisting in the carrying out of an illegal four-digit lottery, under the Common Gaming Houses Act 1959 (`the Act') and was sentenced to one day's imprisonment and a fine of RM20,000. He appealed against his conviction and sentence, contending that by reason of the discrepancies in the expert report and the oral testimony of the expert, there were two sets of evidence which made the evidence unreliable and hence ought to be rejected. He also argued that once the expert was called as a witness to testify in court, the expert report was inadmissible as substantive evidence save as corroboration. Another ground of appeal was that the learned magistrate failed to direct her mind on the expert evidence, assess it and come to a conclusion.

Held, allowing the appeal: (1) to render the report admissible in evidence, the prosecution had to first satisfy the court that the provisions of s 11(5) of the Common Gaming Houses Act 1959 had been complied with, ie that a copy had been served upon the appellant within the time stipulated, and until the prosecution had done this the report could not be received in evidence. In the absence of such proof, the report was inadmissible; (2) there was no evidence adduced by the prosecution that a copy of the expert report had been served on the appellant not less than 14 clear days before the commencement of the trial. There was no acknowledgment by the appellant that he was served with a copy of the expert report. Since the provision of s 11(5) of the Act had not been complied with, the expert report was inadmissible; (3) the learned magistrate did not appear to have appreciated that it was her duty to study the exhibits herself with the assistance of a sufficiently detailed explanation from the the expert before she could satisfy herself that the exhibits related to records of stakes pertaining to an illegal four-digit lottery; (4) as the expert had given no reasons for his conclusions, the learned magistrate was in no position to judge whether the evidence of the expert was in fact acceptable; (5) the court was of the view that the expert evidence was not adequate and she was not able to form her own independent judgement whether the exhibits were related to a public lottery or not. As such, at the close of the prosecution case, the appellant should have been acquitted and discharged without his defence being called.

Wong Wiew Hock v PP Criminal Appeal No 20-41-24 of 1996—High Court, Sibu (Tee Ah Sing J).

The respondent in this case was charged under s 4(1)(b) of the Common Gaming House Act 1953 ('the Act') as a proprietor who had allowed his premises to be used as a gaming house. According to the evidence, a police party raided the respondent's premises on 11 February 1991. The police had not obtained a search warrant pursuant to s 16 of the Act prior to conducting the raid. Eight persons, including the respondent, were playing 'pak kau' when the police raided the premises. The trial magistrate held that he was bound by the case of PP v Thoo Yee Thye [1991] 3 CLJ 2830, and that as the police had failed to obtain the necessary search warrant before raiding the premises and as the prosecution had also not shown that the premises were used for habitual gaming since no observations were conducted by the police prior to the raid, the prosecution had not made out a prima facie case. The accused was acquitted and discharged. The public prosecutor appealed.

Held, allowing the appeal and ordering that the magistrate call for the defence: (1) the magistrate had erred in law in holding that the police first had to comply with s 16 of the Act. The fact that the police had failed to obtain the necessary search warrant before conducting the raid and that the raid and arrests were illegal did not affect the validity of the proceedings nor the admissibility of the evidence against the respondent; (2) the magistrate had erred when he held that the police had to conduct observations before raiding the premises to show it was used for habitual gaming. The definition of 'common gaming house' under s 2 of the Act had been amended and the amendment was in force when the respondent was arrested. The amended definition of 'common gaming house' includes 'any place ... (1) where eight or more persons are gaming; (2) ...'. The new definition eases the burden on the prosecution. Under s 2 of the Act 'a place shall be deemed to be ÒusedÓ for a purpose if it is used for that purpose even on one occasion only'. On the evidence, eight persons, including the respondent, were playing 'pai kau' when the police raided the premises; (3) the facts in the case of PP v Thoo Yee Thye could be distinguished from the facts of the present case. The case reference showed that the facts in that case had taken place during or before 1989, ie before the amendment to the definition of 'common gaming house'. Due to the distinction between the facts and the applicable law, the trial magistrate erred when he held himself bound by the case of Thoo Yee Thye; (4) where any bankers' game is being played;even if the presumption in s 19 of the Act was not applicable as s 16 of the Act was not complied with, based on the evidence forwarded, and using the ordinary rule of construction to the amended definition of 'common gaming house' and the definition of 'used', a prima facie case was made out.

Pendakwa Raya lwn Chong Yoke Choy Criminal Appeal No 41-38-93 High Court, Kuala Lumpur (Zaleha Zahari JC).

To establish 'possession' for the purposes of criminal law, two separate questions are involved. The first is whether the accused party was in possession of the articles in question and the second, by reason of the application of the maxim actus non facit nisi mens sit rea, is whether he had knowledge of the nature of the thing possessed.

Chan Pean Leon v Public Prosecutor [1956] MLJ 237 High Court, Ipoh (Thomson J).

The appellant had been convicted on a charge of failing to declare his interest in a contract entered into by a company of which he was the managing director. The vital fact needed to be proved in this case to show the guilt of the accused was his knowlege of the contract. The evidence on this was purely circumstantial.

Held: in this case, the learned President of the Sessions Court had not considered the whole evidence from all angles as she ought to have done, and it was impossible to say whether had she not failed to do so she would nevertheless have been compelled to the one conclusion of the appellant's guilt and, the circumstantial evidence must point irresistibly to the guilt of the appellant.

Lim Foo Yong v Public Prosecutor [1976] 2 MLJ 259 High Court, Kuala Lumpur (Chang Min Tat J).

Held: (per Syed Othman J) 'On further considering s 18, I am of the view that the restriction imposed by the section should be confined to its four walls. It bars only: (a) proceedings for or on account of any loss of or damage to any article or publication seized, detained, confiscated or destroyed under the Act; or (b) proceedings for or on account of any damage sustained as a result of seizure, detention, destruction or return of any article or publication under the Act, or of any delay in the delivery or return of any article or publication.... The provisions cannot be read as precluding the court from determining the propriety or legality of any seizure, detention, confiscation and destruction made under the Act. The section does not mention ÒimpoundingÓ.'

Sivasubramanian v Chong Cheong Wah & Anor [1973] 1 MLJ 157 High Court, Kuantan (Syed Othman J).

In this case, the police searched the plaintiff's house and seized a number of books. Subsequently, all of these books were returned except one, which it was claimed 'had been declared prejudicial to security'. The plaintiff sought the return of the book and damages for its detention.

Held: (1) the police officer must have suspected the books to contain prejudicial publications when he seized them and therefore the seizure of the books was lawful; (2) there was no evidence to show that the book was impounded in accordance with the Control of Imported Publications Act 1958, and therefore the impounding was unlawful and the book should have been returned to the plaintiff, or damages paid to him. As the book was destroyed by fire, the plaintiff should be paid the cost of the book fixed at RM3.60.

Sivasubramanian v Chong Cheong Wah & Anor [1973] 1 MLJ 157 High Court, Kuantan (Syed Othman J).

The accused and two others were apprehended at about 1.15am on 9 October 1986 at the National Stadium. One of them, Low, was seen throwing a knife and another, Goh, was found to have a knife tucked in his waist. The accused was unarmed. All three were charged under the Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65, 1985 Ed). Low and Goh pleaded guilty after their defence was called. The accused gave evidence in his defence and was found guilty. During the trial, the accused's statement was admitted in evidence after it was found to be taken voluntarily. The accused appealed.

Held, dismissing the appeal against conviction but varying the sentence: (1) there was uncontroverted evidence that the appellant, an 18-year-old, was interrogated without rest from 10.48am to 3.05pm and was not given lunch. The statement did not show that the appellant knew the charge against him or that he was invited to make any alterations or corrections to the statement. The statement should not have been admitted; (2) an appeal court would not generally interfere with the finding of a trial court. But if the conclusion reached by the trial court was against the weight of evidence, an appeal court would, in the interests of justice, intervene; (3) the evidential presumption that the appellant knew that his companions had offensive weapons with them was compelling. The appellant, in his defence, was unable to offer any plausible explanation why he was at the entrance of the National Stadium at 1.15am amidst armed companions; (4) in addressing the question whether there was any failure or miscarriage of justice or whether a conviction was unsafe, the court had to ask itself the subjective question of whether it was content to allow the verdict to stand or whether there was some lurking doubt; (5) notwithstanding the errors in the court below, there was no failure of justice; (6) the sentence was varied to one month's imprisonment and six strokes of the cane.

Tan Choon Huat v Public Prosecutor [1991] 3 MLJ 230 High Court, Singapore (Rubin JC).

The respondent was charged with being found in possession of an offensive weapon, to wit, a pistol-shaped dagger, otherwise than with lawful authority or for a lawful purpose, contrary to s 6(1) of the Corrosive and Explosive Substances and Offensive Weapons Ordinance 1958. There was evidence that the place where he was found to be so in possession was a public place, that he was in fact a member of the police force and that he was in civilian clothes and not on duty at the time of his arrest. At the close of the prosecution case, the respondent was acquitted on the ground that he, being a member of the police force, was presumed to be in possession of the weapon with lawful authority until the contrary was proved.

Held: (1) the presumption under s 6(3)(a) of the Corrosive and Explosive Substances and Offensive Weapons Ordinance arises on proof firstly, that the person found in possession of the offensive weapon was a member of the police force, and secondly, that the weapon in question was carried in or in connection with the performance of his duty as such member of the police force. In this case, as there was no evidence whatsoever that at the time of his arrest he was on duty or that he carried the dagger in or in connection with the performance of his duty as a policeman, the order of acquittal should be set aside; (2) it was not for the prosecution to prove that the accused had no lawful authority, because the burden of proving a fact which is especially within the knowledge of any person lies on that person; (3) (per Gill J) 'A policeman cannot be said to be carrying an offensive weapon with lawful authority unless it is shown that it is the type of weapon which is normally issued to him for the purpose of discharging his duty.'

Public Prosecutor v Yeoh Siew Beng [1965] 1 MLJ 119 High Court, Ipoh (Gill J).

Public Prosecutor v Karnal Singh [1970] 1 MLJ 49 High Court, Penang (Ong Hock Sim J).

See CRIMINAL LAW, Vol 4, para 1022.

Held: the test of whether a knife is an offensive weapon under the provisions of the Corrosive and Explosive Substances and Offensive Weapons Ordinance 1958, is whether, if used as a weapon of offence, such a knife is likely to cause hurt. Applying the above test, a jack knife is an offensive weapon. Intention is only relevant when considering whether or not the person possessing it had lawful authority or had it for a lawful purpose.

Public Prosecutor v Muniandy [1963] MLJ 147 High Court, Alor Setar (Suffian J).

The respondent, who had been charged under s 6A(1)(a) of the Corrosive and Explosive Substances and Offensive Weapons Ordinance 1958 ('the Ordinance'), was acquitted on the ground that possession of the weapon had not been in a public place. On appeal by the Public Prosecutor,

Held: on a true interpretation of ss 6 and 6A of the Ordinance, the omission of the words 'in any public road or place' in s 6A was intentional, and the Legislature intended the offences set out in s 6A to be offences wherever committed.

Public Prosecutor v Sivaparagasam [1962] MLJ 22 High Court, Penang (Hepworth J).

Held: police supervision order under s 49A(1)(f) of the Criminal Law (Temporary Provisions) Ordinance 1955 must specify the hours between which the person affected must remain within doors or within the prescribed area. A direction, as in this case, that a person shall not 'at any time' visit such an area does not fall within the scope of the sub-paragraph. An order restricting a person from entering a certain area 'at any time' does not comply with the requirement that a direction must be limited so as to take effect 'between such hours as may be specified'. It therefore follows that sub-para (f) of s 49A(1) of the ordinance, as it stands at present, does not entitle the minister to impose condition (e) in the police supervision order, restricting the respondent from entering a certain area 'at any time'.

Public Prosecutor v Chua Siang Kang [1960] MLJ 281 High Court, Singapore (Rose CJ).

Indut v Public Prosecutor [1939] MLJ 129 High Court, Federated Malay States (Murray-Aynsley J).

See criminal law, Vol; 4, para 1234.

The first, second and third respondents were charged for conveying uncustomed goods, ie 1,560 cans of Heineken lager beer with the intent of defrauding the government of the duties thereon. At the close of the prosecution case, all three were acquitted without their defence being called and the goods and lorry ordered to be returned to the respondents. The deputy public prosecutor appealed.

Held, dismissing the appeal: (1) in customs cases, the burden of proof that the goods are dutiable, uncustomed or prohibited is on the prosecution unless where the circumstances are appropriate, the prosecution relies on s 119 of the Customs Act 1967 that the goods may be deemed to be dutiable, uncustomed or prohibited; (2) the effect of s 119 is that when a customs officer suspects any goods to be uncustomed goods, he is entitled to seize the goods; (3) in the present case, the respondents produced customs documents which stated at the bottom that duty had been paid. This was not contradicted by the prosecution nor could the prosecution prove that the goods were imported.

Public Prosecutor v Sia Pung Kok & Ors Criminal Appeal No 43 of 1992 High Court, Borneo (Muhammad Kamil JC).

This was an appeal by the Public Prosecutor against the acquittal and discharge of the accused after the close of the prosecution case without the defence being called. The accused was charged for knowingly keeping 31,523 pieces of plastic gas lighters ('the goods') on which customs duty leviable by law had not been proved to be paid and thereby had committed an offence under s 135(1)(d) of the Customs Act 1967 ('the Act'). The prosecution alleged that the magistrate had failed to follow the cases of PP v Saminathan [1954] MLJ 162 and PP v Fatimah [1960] MLJ 109 cited to the court and had erred in discharging the accused after the close of the prosecution case without the defence being called. The accused submitted that no evidence was led by the prosecution to prove that the premises where the goods were seized ('the premises') belonged to the accused and that this was fatal to the prosecution case. Evidence was adduced that the accused had told PW6, a Senior Custom Officer, during the search of the premises that he (the accused) was the owner of the premises.

Held, allowing the appeal: (1) and (c) that the accused knew that the goods were uncustomed in the sense charged, ie that the goods were imported goods and that duty on them had not been paid; (2) the submission that no evidence was led by the prosecution to prove that the premises belonged to the accused was unacceptable because of the evidence of PW6 that he was told by the accused that the latter was the owner of the premises; (3) in order to prove that the goods were imported and that customs duties thereon had not been paid, the prosecution was entitled to invoke the assistance of s 119 of the Act which would shift the burden of proof onto the accused. The prosecution would only need to prove that on import, customs duties were leviable on the goods without having to prove that such goods were in fact imported into Malaysia. This was because the effect of s 119 of the Act was that it was for the accused to satisfy the court either that the goods had not been brought from outside Malaysia or that the proper duty had been paid upon it; (4) under s 135(2) of the Act, the goods were presumed to be uncustomed to the knowledge of the accused unless he proved to the contrary. The effect of s 135(2) was to provide the essential ingredients of knowledge relevant to the charge and it placed on the accused the onus to prove otherwise; (5) based on the principles enunciated in PP v Saminathan, the prosecution has to prove three ingredients to the charge. These are (a) that the accused did knowingly keep the goods; (b) that the goods were uncustomed as alleged in the charge, ie they were imported goods on which duty had not been paid;therefore, the magistrate had erred in law and in fact in coming to the conclusion that the prosecution had not adduced any evidence to show that the goods were manufactured outside Malaysia because by virtue of the presumption under s 119 of the Act, the prosecution was not required to prove that the goods were manufactured outside Malaysia or imported into Malaysia. The magistrate also erred in law in not applying the presumption under s 119, where the burden of proof would lie on the accused to satisfy the court either that the goods were not imported into Malaysia or that the proper duty had been paid. The magistrate also erred in law in not applying the presumption under s 135(2) wherein the burden would shift to the respondent to rebut the presumption of knowledge that the goods were uncustomed. The prosecution, therefore, had made out a prima facie case which, if unrebutted, would warrant his conviction. The magistrate should have called the accused to enter his defence.

Public Prosecutor v Lai Fong Shin Criminal Appeal No K 41-01-95 High Court, Kota Kinabalu (Tee Ah Sing JC).

On 25 April 1973, three customs officers were lying in wait at the export gate at the Johore Bahru Causeway for motor car JK 3756. At about 5.30 pm, the car was seen leaving the immigration check-point and approaching the customs check-point. The first officer on seeing the car signalled the others to be on the alert. One was at the export gate near the check-point, and the other was at the emergency gate which was further up the export gate and was about the beginning of the causeway leading to the border between Johore and Singapore in the middle of the causeway. The officer manning the emergency gate, on being alerted, closed the gate. The car was then about 10 yards from the check-point. There were two cars ahead of it. The officer at this gate signalled the respondent who was driving to stop. But the respondent reversed and made a U-turn, ignoring the first officer's shout to stop. With a revolver in his hand, the officer leapt on to the bonnet of the moving car and tried to get into it by smashing the windscreen with his revolver. In the process, the revolver was thrown into the car and the officer off the car. The car got away through a gap in the kerb beside the road. The gap was after the immigration point leading to a road back to town. The car was later found and the respondent was taken to the police station. The revolver was recovered when the respondent led them to a spot where he had thrown it. The car was taken to customs, and in it were found 21 bags of tin ore, two in the boot, three under the seat, and 16 in a special compartment between the back rest of the rear seat of the car and the engine. The car was a Volkswagon with an engine at the back. The prosecution appealed against the acquittal of the respondent. The learned President held that the respondent had no case to answer on a charge of having been knowingly concerned in an attempt at fraudulent evasion of export duty on 21 bags of tin ore weighing 9.45 piculs, an offence under s 135(1)(e) and punishable under s 135(1)(i) of the Customs Act 1967 (Act 235).

Held, setting aside the acquittal: (1) a person could only be convicted of an attempt to commit in the circumstances where the steps taken by him in order to commit the offence, if successfully accomplished, would have resulted in the commission of that offence; (2) acts remotely leading to the commission were not to be considered as an attempt to commit, but acts immediately leading to the commission of the offence or acts immediately connected with the commission of the offence constituted an attempt to commit that offence; (3) the customs had the right to examine a vehicle after it left the immigration point, because after that point the traveller must be said to be in the course of leaving the country, and if he had the goods, then they were in the course of being exported; (4) the remote acts, ie preparatory to or as showing intention to commit the offence, would be the making of the secret compartments in the car, the obtaining and loading of the tin ore into the car, and the driving up to the immigration check-point to present his travel documents; (5) the immediate acts were that he was within the area of the customs check-point, he failed to stop when called upon to do so, and he reversed the car and drove off; (6) all evidence, the immediate acts and the prevailing circumstances, considered as a whole, constituted the offence of attempt at fraudulent evasion of export duty.

Public Prosecutor v Kee Ah Bah [1979] 1 MLJ 26 High Court, Johore Bahru (Syed Othman J).

In this case, the respondents had been charged under s 49(1) of the Customs Act 1967 (Act 235), for carrying tin ore in a local craft without the permission of the Director-General of Customs. The defence of the respondents was that their boat had a broken rudder and it had drifted in distress into Malaysian waters. The defence raised was one of necessity. The learned magistrate accepted the evidence of the respondents that the rudder of the boat was broken while the boat was in international waters and that the boat drifted into Malaysian waters, but he held that in those circumstances the boat was in transit, and therefore the offence under s 49(1) of the Customs Act was not committed. The Public Prosecutor appealed, and it was submitted that the offence under s 49(1) of the Customs Act was one of strict liability and that no mental element or knowledge need be proved by the prosecution.

Held: (1) the respondents were justified out of necessity to enter Malaysian waters on specific reasons that the boat in which they were travelling was in distress due to the fact that the rudder of the boat was broken in international waters; (2) it would appear that in strict liability cases, it is still open to the accused to prove absence of knowledge, and the application of the rule that mens rea is an essential ingredient of every offence has not been ousted depending on the subject matter of the statute, though the onus of proof required of the accused is on the balance of probabilities that he could not have reasonably known the existence of the law; (3) even assuming a charge under s 49(1) of the Customs Act is one of strict liability, it may be construed that mens rea or guilty mind by the respondents was not present when the offence was alleged to have been committed.

Public Prosecutor v Ali bin Umar & Ors [1982] 2 MLJ 51 High Court, Johore Bahru (Yusoff Mohamed J).

The appellant was charged and convicted under s 114(h) of the Customs Enactment ('the Enactment'), which is as follows: 'Whoever ... (h) is in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any customs duty shall ... be liable on conviction to a fine not less than six times the amount of the duty or five thousand dollars whichever is the less, and which may extend to twenty times the amount of the duty or five thousand dollars whichever is the greater ... '. The appellant resided in Singapore where he carried on business in partnership as a dealer in goods from Shanghai and Hong Kong. He opened a shop of his own in Kuala Lumpur in 1938 under the style of Khim Yick & Co. He did not manage or conduct the business of this shop himself, but left it entirely to a manager, Chong Lip Sam, to whom he granted a power of attorney containing wide powers. Khim Yick & Co imported goods from Shanghai, and in April 1940, goods arrived therefrom per SS 'Santhia'. The shipping documents and bill of exchange, payable 45 days after acceptance, were presented to and accepted on behalf of Khim Yick & Co, who proceeded to clear the goods through the customs in the following manner: (a) in August 1939, Khim Yick & Co had appointed Loon On Forwarding Agents Co to transact their business with the Customs Department. This document was signed in Chinese 'Chong Thian Yew' without any description of what position that person held in Kim Yick and Co, and bore the 'chop' of Khim Yick & Co, affixed by an ordinary rubber stamp; (b) a special invoice of the goods, supplied by the exporters from Shanghai, was presented by Khim Yick & Co to the forwarding agents who prepared an application for the removal of the goods in accordance with that invoice. It was a false invoice, understating the quantities and prices of the goods concerned, and clearly prepared with a view to defrauding the customs; (c) on the faith of the forwarding agents' application, duty was assessed and paid, and the goods were cleared. The amount of duty paid was RM342.83: the amount, as subsequently ascertained, which should have been paid was RM757.78. It was accepted that the forwarding agents were innocent participants in the fraud, and the magistrate found that the appellant was not concerned therein except for the fact that he was proprietor of Khim Yick & Co and that, as such, he received 80% of the amount by which the customs had been defrauded. The magistrate convicted the appellant on the ground that he was liable for the criminal act of his agents, applying the principle set out in Allen v Whitehead [1930] 1 KB 211, and also s 124(iv) of the Customs Enactment (No 5 of 1936). He inflicted the approximate minimum sentence of a fine of RM4,225, basing his calculation upon six times the total duty on all the goods, and deducting from this total the amount of duty actually paid. The appellant appealed against both conviction and sentence.

Held: the question of whether s 114(i)(h) of the Customs Enactment is an exception to the general rule of 'mens rea' in criminal cases, in so far as a principal is to be held criminally responsible for the offence actually committed by his agent, irrespective of any guilty knowledge in the principal, is concluded by s 124 of the Enactment. By that section, the Legislature has expressly stated when and how in the case of offences under the Customs Enactment this exception to the general principle of criminal law is to apply. An extension of criminal liability such as this must be strictly confined to its express enactment. The principle 'expressio unius exclusio alterius' applies. The only act of an authorized agent to which s 124(iv) could attach was the act of the forwarding agents in making the false declaration and presenting it and the false invoice to the customs officer. That act was not an offence under s 114(i)(h) because there was no guilty knowledge in the forwarding agents. The conviction under that section cannot therefore stand. The offence constituted by the provisions of s 113 is an absolute one, irrespective of any knowledge on the part of the offender, and was committed by the forwarding agents. They were appointed on behalf of Khim Yick & Co in the ordinary course of business, the appointment was acted upon by all parties and its validity was not questioned at the trial. The words 'authorized by him' in s 124(iv) do not require that the authorization must be personal, and the forwarding agents were agents within the meaning of that section. A conviction under s 113(i) was therefore substituted.

Wong Ngian Thin v Public Prosecutor [1941] MLJ 199 High Court, Federated Malay States (Cussen J).

In these cases, the accused had been charged before the sessions court for offences under s 39B(1) of the Dangerous Drugs Act 1952 (Act 234). The Dangerous Drugs (Amendment) Act 1983 amended the Dangerous Drugs Act 1952, so that offences under s 39B(1) were made punishable by death and became triable only in the High Court. Prior to the amendment, the cases were punishable with imprisonment for life or death and could be tried in appropriate cases in the sessions court. All the cases were transmitted to the High Court for trial. The question that arose in these cases was: 'Whether ss 15 and 16 of the Dangerous Drugs (Amendment) Act 1983, which confer exclusive jurisdiction on the High Court to try offences in contravention of s 39B(1) of the Dangerous Drugs Act 1952, have the effect of taking away the jurisdiction of the sessions court even with regard to cases pending trial before the latter prior to the coming into force of the amending Act?'

Held: (1) the provisions of the Dangerous Drugs (Amendment) Act 1983 are not retrospective by express enactment or by necessary implication; (2) once the accused persons in this case were charged and their cases fixed for hearing in the sessions court before the coming into force of the amending Act, that gave them a vested right to trial in that court. Consequently, ss 15 and 16 of the amending Act can in no way deprive an accused person of this right; (3) assuming that ss 15 and 16 of the amending Act have retrospective operation and the saving provisions of s 30 of the Interpretation Act 1967 (Act 23/1967) do not apply, they violate art 7(1) of the Federal Constitution and are therefore vitiated; (4) the Attorney General having elected for trial in the sessions court and as the orders for transmission were made in the absence of a requisition by the Attorney General, ss 15 and 16 of the amending Act come within the constitutional inhibitions of art 145(3) of the Federal Constitution.

Public Prosecutor v Hun Peng Khai & Ors [1984] 2 MLJ 318 High Court, Penang (Edgar Joseph Jr J).

[Annotation: Following an application by the Attorney General for a ruling on whether a sessions court has the juridiction to try any case under s 39B of the Dangerous Drugs Act 1952 after the amendment to s 41(1) of the said Act, the Federal Court (Abdul Hamid CJ (Malaya), Hashim Yeop A Sani and Abdoolcader FJJ), sitting at Ipoh on 23 July 1984, ruled that the amendment to the Dangerous Drugs Act (making death sentence mandatory for trafficking) does not apply to cases pending hearing in the sessions courts before the amendment came into force on 14 April 1983 (Public Prosecutor v Jusoh bin Samah, Criminal Trials Nos 1 and 4 of 1984 overruled).]

The issue in this case related to the interpretation of s 3(2)(c) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('the Act'). Counsel for the applicant argued that the report under the first limb of the provision had been infringed since the report was addressed not to the designated officer per se but to the Inspector-General for the attention of some other officer. Another issue related to the admissibility under the said provisions of a certified true copy of the above report tendered by the designated officer since the reporting officer was away in Indonesia and could not depose to the fact that he was the maker of the report. Counsel, however, argued that arrangements could easily have been made to procure his affidavit. Since this was not done, the photocopy of the report exhibited to the designated officer's affidavit was inadmissible hearsay evidence. As such, there was a gap in documentary evidence to show lawful authorization for the applicant's detention under s 3 of the Act.

Held, dismissing the appeal: (1) there was nothing in the provisions to suggest that the report must be addressed to the designated officer. It was merely a matter of form that correspondence in government departments was normally addressed to the head of the department and this report conformed to the general administrative practice; (2) the important question was whether the designated officer did receive and apply his mind to the report. The answer to this was in the affirmative as conceded by counsel for the applicant. Section 3(2)(c) of the Act was therefore complied with; (3) a report submitted by a designated officer to the minister was a public document within the meaning of s 74(a)(iii) of the Evidence Act 1950 and by virtue of s 65 of that Act, its contents were provable by secondary evidence by means of a certified true copy. There was no break in the chain of evidence.

Yeow Boon Kee v Timbalan Menteri Dalam Negeri, Malaysia & Anor [1993] 2 MLJ 359 High Court, Kuala Lumpur (LC Vohrah J).

In this case, the applicants had originally been charged with trafficking in ganja. The prosecution subsequently applied for their discharge not amounting to an acquittal, but they were rearrested under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) ('the Act'). Subsequently, a detention order was made against them and they were detained at Pulau Jerejak for two years. They applied for habeas corpus, contending that their arrest and detention by the police and the further arrest and detention under the order of the minister were both wrongful and unlawful on a number of grounds.

Held, dismissing the applications: (1) the mere fact that the applicants had been discharged in a criminal case does not mean that no valid arrest could be effected under a preventive detention law or order for preventive detention, or that no order for preventive detention could be passed against the applicants in connection with that very incident or that such order can be characterized as being made mala fide; (2) the Act is also a prevention detention law as can be seen from the long title, preamble and body of the Act, and the court cannot be asked to inquire into the sufficiency of the reasons for the belief for the necessity of the detention as stated in the relevant affidavits which has resulted in the said detention orders; (3) the courts may review an order for preventive detention if there is an allegation that a condition precedent for the making or the continuance of the said order has not been complied with or if there is an allegation that the grounds of detention stated in the said order do not fall within the scope and ambit of the particular legislation under which the said order was made, or if there is an allegation of mala fides; (4) in these cases, the grounds stated by the applicants in their respective notices of motion are devoid of merit and the applications should be dismissed.

Mohd Ali bin Mohd Radi v Director of Prison, Rehabilitation Centre, Pulau Jerejak, Pulau Pinang & Anor and other appeals [1989] 1 MLJ 248 High Court, Ipoh (Abdul Malek J).

The applicant was committed to Pusat Serenti Rawang pursuant to a magistrate's order and he applied for the issue of a writ of habeas corpus. He contended that the drug `cannibinoids' to which he was certified by the medical officer to be addicted to in the certificate of drug dependency form under the Drug Dependants (Treatment and Rehabilitation) (Forms) Rules 1983 was not a dangerous drug as defined in the Drug Dependants (Treatment and Rehabilitation) Act 1983. He also raised an objection that the magistrate's affidavit was defective as it did not contain certain form of words in the formal part of the affidavit.

Held, allowing the application: (1) the drug had to be one described as a dangerous drug under the First Schedule of the Dangerous Drugs Act 1952. The Schedule, however, included no reference to `cannibinoid'. The only references were to `cannabis', `resin of cannabis and substances of which such resin formed the base', and `cannabis (Indian hemp) and cannabis resin (resin of Indian hemp)'; (2) the Merriam-Webster Dictionary defined `cannabinoid' as any of various constituents (as THC or cannabinol) of cannabis or marijuana; (3) the active ingredient of cannabis was the cannabinoid in cannabis. To reject the certificate of drug dependency merely because it referred to cannabinoid rather than cannabis would fly in the face of reason; (4) a cursory scrutiny of the form would have shown that the word used therein was `cannibinoids'. The court was not satisfied that `cannibinoid' was the same as `cannabinoid'. A person should not be deprived of his liberty for whatever reason on such uncertainty arising from inattention; (5) O 2 r 2 of the Rules of the High Court provided for applications by the parties to set aside any proceeding, step in any proceedings or any document, judgment or order for irregularity. But r 2(2) in requiring the grounds of objection to be stated in the summons or notice of motion made it mandatory that an application be in writing and filed; (6) the applicant's objection was made orally and could not be entertained as it was barred by the mandatory provision of O 2 r 2(2).

Siritharan a/l Muthiah v Menteri Dalam Negeri Malaysia & Anor Pemohonan Jenayah 44-4-97—High Court, Shah Alam (Abdul Wahab Patail J).

The respondent was charged with being in possession of eight plastic straws containing 0.21 gms of heroin, an offence under s 12(2) of the Dangerous Drugs Act 1952 (Act 234). He pleaded guilty to the charge and was accordingly convicted and sentenced to eight months' imprisonment to take effect from the date of his arrest. The Public Prosecutor appealed against the sentence and argued that the sentence was grossly inadequate on the ground that the magistrate had failed to appreciate the seriousness of the offence and had also failed to consider that the respondent had five previous convictions, two of which were connected with drugs.

Held: the learned magistrate had misdirected herself on the facts and the law, and the sentence of eight months' imprisonment was manifestly wrong and inadequate as a deterrent for the accused as well as for would-be offenders. In the circumstances, the appeal should be allowed and sentence enhanced from eight month's imprisonment to 18 months' imprisonment to take effect from date of arrest. Meaning of 'sentence according to law' explained.

Public Prosecutor v Jafa bin Daud [1981] 1 MLJ 315 High Court, Kuala Lumpur (Mohamed Azmi J).

The following three questions were referred by the learned magistrate to the High Court asking the court to exercise its power of revision in respect of a proceeding against an accused person under s 15(a) of the Dangerous Drugs Act 1952 ('the 1952 Act'): (a) whether a person detained under ss 3, 4 and 6 of Pt 2 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 ('the 1983 Act') and where tests confirmed by a medical practitioner show that he is a drug dependant, can be charged under s 15(a) of the Dangerous Drugs Act 1952 before he is produced before a magistrate as required under s 6(1) of the 1983 Act; (b) if the answer is in the affirmative, whether mere existence of drugs as confirmed in the urine test by a medical practitioner under s 6 of the 1983 Act is sufficient ground for charging or convicting a person for self-administration of a dangerous drug under s 15(a) of the 1952 Act; (c) if the answer is in the negative and the magistrate, after having regard to s 6(4), decides not to make the relevant orders under s 6(1)(a) or (b) and the Public Prosecutor decides to charge the dependant under s 15(a) of the 1952 Act, whether the same magistrate can sit to decide the charge against the accused. In the instant case, the accused was charged with an offence punishable under s 15(a) of the 1952 Act of administering to himself a dangerous drug, namely morphine. The accused had earlier been ascertained to be a drug dependant when tests carried out on his urine sample showed that it contained morphine. The accused pleaded guilty to the charge and was convicted. The learned magistrate sentenced him to a fine of RM800 in default eight months' imprisonment and two years' drug supervision.

Held: (1) as the Public Prosecutor has the control and direction of all criminal prosecutions and proceedings under s 376 of the Criminal Procedure Code (FMS Cap 6), he can still charge the accused under s 15(a) of the 1952 Act even though the accused was arrested under s 3 of the 1983 Act and even though tests carried out by a medical practitioner showed that the accused was a drug dependant. The answer to the first question was, therefore, in the affirmative; (2) and (b) that the urine of the accused is clinically tested and found to contain the drugs; (3) in the instant case, the conviction and sentence of the accused were lawful as he understood the charge and pleaded guilty to it. Both the charge and the facts of the case stated that he administered the drug to himself; (4) having regard to the provision of s 15(a) of the 1952 Act, it is clear that the mere existence of drugs as confirmed in the urine test by a medical practitioner is not sufficient evidence to convict a person thereunder. To prove that a person is guilty of an offence under s 15(a), the prosecution must prove: (a) the accused administers the drug to himself or that the accused suffers another person, contrary to s 14 of the 1952 Act, to administer the drug to him;with regard to the third question, the answer is in the affirmative although it is desirable that another magistrate hears the case.

Public Prosecutor v Chan Kam Leong [1989] 1 CLJ 805 High Court, Kuala Lumpur (Zakaria Yatim J).

Public Prosecutor v Mohamed Ismail [1984] 1 MLJ 134 High Court, Penang (Edgar Joseph Jr J).

See CRIMINAL LAW, Vol 4, para 142.

The appellant had been convicted upon a charge that he did on 30 December 1987 traffick in a dangerous drug, ie cannabis, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and sentenced to death, that being the mandatory sentence under s 39B(2). He appealed on the ground that the trial judge was wrong in relying on the evidence of the chemist because it created a doubt as to whether the substance he had analysed was 'cannabis' within the meaning of s 2 of the Act, prior to its amendment on 4 September 1992, or 'cannabis (Indian Hemp)', a drug listed in Pt III of the First Schedule of the Act.

Held, allowing the appeal: (1) the record showed that all the chemist had said on the point at issue was that his examination and analysis of the substance showed that it was 'cannabis as defined in the Dangerous Drugs Act 1952' without mentioning s 2 of the Act. This glaring omission could give rise to the inference that he did not have in mind the ingredients of cannabis as defined in s 2. He also made no mention of the results of his physical examination of the substance or whether he had carried out any tests thereon. The combined effect of these infirmities, which were overlooked by the judge, was that the substance could either be 'cannabis' within the meaning of s 2 of the Act, or 'cannabis (Indian hemp)' listed in Pt III of the First Schedule of the Act; (2) under the Act, 'cannabis' and 'cannabis (Indian hemp)' even though of the same weight, may be differently penalized, ie they may constitute the subject matter of different offences, in which case the presumption of trafficking under s 37(da) could not arise. When, as in this case, the court was left in doubt as the whether the accused had committed an offence in a lower or higher degree of seriousness, the court should make a finding in the lower degree, particularly where a finding in the higher degree would give rise to a mandatory death sentence; (3) accordingly, the conviction under s 39B(1)(a) would be quashed, the sentence of death set aside, and substituted with a conviction under s 12(2) and the maximum sentence of five years' imprisonment under s 12(3) to take effect from the date of arrest.

Shukri bin Mohamad v Public Prosecutor [1995] 3 MLJ 229 Supreme Court, Kuala Lumpur (Eusoff Chin CJ, Edgar Joseph Jr and Wan Adnan FCJJ).

Pendakwa Raya v Kunasagarn a/l P Muthu & Anor Criminal Trial No 45-9-93 High Court, Johor Bahru (Mohd Ghazali JC).

See CRIMINAL LAW, Vol 4, para 208.

Ramli bin Kechik v Public Prosecutor [1986] 2 MLJ 33 Supreme Court, Penang (Abdul Hamid CJ (Malaya).

See criminal law, Voil 4, para126.

The appellants were convicted under s 39B(1)(a) of the Dangerous Drugs Act 1952 (`the Act') by the High Court of trafficking in cannabis and sentenced to death. The appellants appealed, arguing that there was doubt as to what was the substance analysed by the chemist because the chemist merely testified that he found the substance to be cannabis as defined under the Act. It was submitted that since the chemist did not specifically mention that the cannabis was as defined in s 2 of the Act, it could well be cannabis (Indian Hemp) as listed in Pt III of the First Schedule to the Act. Thus, the appellants argued that the court should substitute the conviction for one under s 12(2) of the Act.

Held, dismissing the appeal: (1) cannabis was defined only in s 2 of the Act and cannabis (Indian Hemp) was nowhere defined in the Act. Therefore, when the chemist said the cannabis was as defined in the Act, he must have had in mind the cannabis as defined in s 2 of the Act; (2) in this case, the prosecution had successfully presented actual evidence of trafficking. Therefore, even if the construction most favourable to the appellants was taken as to the type of drug in this case, ie cannabis (Indian Hemp), in the light of the uncontroverted evidence of actual trafficking, the appellants were rightly convicted under s 39B(1)(a) of the Act.

Abdul Karim bin Pak Kub & Anor v Public Prosecutor [1997] 2 MLJ 112 Court of Appeal, Kuala Lumpur (Shaik Daud, Mahadev Shankar JJCA and Abdul Malek Ahmad J).

A was charged with trafficking in heroin and '6-monoacetylmorphine' under s 39B(1)(a) of the Dangerous Drugs Act 1952. The prosecution served the chemist's report ten clear days before the trial on A and it was admitted as evidence at the trial. The High Court convicted A but the Supreme Court quashed the conviction and ordered a retrial. At the retrial, A was charged with trafficking in heroin only. The same chemist's report was not served before the retrial but was nevertheless admitted as evidence. The High Court convicted A at the end of the retrial and A appealed to the Supreme Court. The prosecution argued that since the chemist's report had been served on A before the first trial, there was no necessity to reserve it before the retrial. The prosecution further argued that since A knew of its intention to tender the chemist's report as evidence, it was for A to give notice requiring the attendance of the chemist.

Held, allowing the appeal: (1) s 399(1) of the Criminal Procedure Code (FMS Cap 6) ('the Code') is not merely a procedural provision but it also contains, inter alia, rules of admissibility of chemist's reports. The proviso to s 399(1) of the Code is a condition precedent and if not complied with, the chemist's report cannot be admitted in evidence without calling the chemist to produce it; (2) a retrial means a new or fresh trial and cannot be treated as a continuation of the first vitiated trial. Whatever was done by the prosecution during the earlier trial, such as service of the chemist's report, must be ignored. Indeed, the charge at the retrial was different from that of the first trial and both trials were heard by different corams; (3) in a retrial, it is incumbent on the prosecution to prove its case all over again beyond any reasonable doubt and this obligation includes the duty to prove that the subject matter of the charge was heroin either by calling the chemist or by invoking the proviso to s 399(1) of the Code to admit the chemist's report. If the prosecution does not call the chemist, it must reserve the chemist's report on A before the retrial; (4) there was no duty on A's part to do or assume anything in the conduct of the prosecution; (5) the failure of the prosecution to reserve the chemist's report on A before the retrial was fatal to its case. The chemist's report was inadmissible and there was therefore no evidence before the court that the subject matter of the charge was heroin.

Ooi Lean Chai v Public Prosecutor [1991] 2 MLJ 552 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

Both the accused persons in this case were charged with the offence of drug trafficking under s 39B of the Dangerous Drugs Act 1952 (`the DDA 1952'). At the time of his arrest the first accused (`A1') was the sole occupant in a car wherein three paper packages containing orange granular/powdery substance were found along with two plastic packets containing granular/powdery substance which was suspected to be heroin. All the granular/powdery substances were taken into custody by the police officer (`SP3') who headed the arrest party. When the arrest party together with A1 proceeded to a house they found the second accused (`A2') standing outside the house with a young child. When SP3 alighted from A1's car, A2 immediately went into the house, locked the front iron grille door and closed the front bedroom door. Subsequently, A2 and her children were arrested. Among the issues for consideration were (i) whether the accused persons were occupiers of the premises; (ii) as occupiers of the premises, whether they had custody and control of the drugs, thus invoking the presumption of possession and trafficking in s 37(d) and (da) respectively of the DDA 1952; (iii) whether there was a distinction between jointly charged with committing an offence under s 39B(1) of the DDA 1952 and jointly charged with committing an offence in furtherance of a common intention under s 34 of the Penal Code (FMS Cap 45); and (iv) whether the prosecution had a discretion in calling witnesses.

Held, acquitting and discharging both the accused persons: (1) the general burden of proof lay throughout the trial on the prosecution to prove beyond a reasonable doubt the guilt of an accused for which he was charged. There was no similar burden on any accused person to prove his innocence. The evidential burden on him was merely to cast a reasonable doubt on the prosecution's case; (2) at the close of the prosecution's case, there had to be a maximum evaluation of the prosecution's evidence. The court had to be satisfied that the prosecution had proved all ingredients of the offence and made out a prima facie case beyond all reasonable doubt which if unrebutted would warrant a conviction; (3) to prove one or more of the ingredients of an offence the prosecution might rely on available statutory presumptions. Herein the defence would have a heavier burden, ie to rebut the particular statutory presumption relied on by the prosecution on a balance of probabilities as opposed to the general evidential burden to cast a reasonable doubt on the prima facie case. However even if an accused failed to rebut any presumption, the court, if left in a state of doubt whether the accused had committed the offence as alleged, had to acquit the accused; (4) as far as s 37(b) of the DDA 1952 in relation to the presumption of occupation of the premises was concerned, there was no legal presumption of care and management. Therefore to invoke the presumption of occupation of premises, care or management had to be proved either by direct evidence or by inference. The mere presence of an accused in front of the house or in one or more of the rooms without more, did not show that an accused had or appeared to have the care or management of the house and therefore the presumption under s 37(b) would not arise. However, a person proved to have the care or management of any premises was presumed to be an occupier, even without other proof of occupation of the premises in question; (5) in the present case, there was ample direct evidence to conclude that both the accused persons were occupiers of the bedroom ie (i) the furniture in the bedroom, the male and female wear in circumstances and conditions suggestive of recent human habitation; (ii) the passports and bank account books indicative of that habitation by both A1 and A2; (iii) A2's ownership of the house; and (iv) the presence of minors with the surname `Sim'. Nonetheless, the evidence also pointed to A1 and A2 having the care or management of the house at the material time; (6) there was no statutory definition of the word `possession'. However judicial pronouncements on its meaning illustrate that it involved a degree of custody or control, and knowledge of the custody or control. Whilst mere knowledge was insufficient to establish possession, the power of disposal was no longer an ingredient needed to support a conviction in a dangerous drugs trial; (7) custody meant having care or guardianship and the knowledge of the existence and whereabouts of the goods and power of control over them, not amounting to possession. It was the actual physical control and control had to be construed to mean any form of control other than actual physical control; (8) the facts in this case reflected the possibility of access by others to the bedroom which points to A1 not having exclusive use of the room. Notwithstanding that there was suspicion, it was inadequate for an inference that A1 had custody or control of the plastic bag containing drugs to attract the presumption under s 37(d) of the DDA 1952; (9) there was a distinction between cases where the accused persons were jointly charged with committing the same offence under s 170 of the Criminal Procedure Code (FMS Cap 6) (`the CPC') and where the accused persons were jointly charged with committing the offence in furtherance of a common intention under s 34 of the Penal Code (FMS Cap 6). In the case of the former, the prosecution need not show a common intention but had to establish the guilt of each accused as a separate exercise and each may be convicted independently. Conversely in the case of the latter, the prosecution need only establish that one of the accused persons committed the act and that there was some evidence that the others participated in it in furtherance of a common intention; (10) the prosecution had a complete discretion as to the choice of its witnesses to be called at a trial, the only limitation being a duty to call all the necessary witnesses to establish against an accused proof beyond reasonable doubt. Where the witnesses came within the category of `witnesses essential to the unfolding of the narratives on which the prosecution's case was based', then the prosecution had to call such witnesses or at the very least offer them to the defence for cross-examination.

Public Prosecutor v Sim Ah Ba & Anor [1997] 4 MLJ 47 High Court, Penang (Jeffrey Tan JC).

Public Prosecutor v Mohd Nadzir bin Mohd Noor [1988] 3 MLJ 238 High Court, Kuala Lumpur (KC Vohrah J).

See CRIMINAL LAW, Vol 4, para 209.

Akin Khan bin Abdul Rahman v Public Prosecutor [1987] 2 MLJ 217 Supreme Court, Kota Bharu (Wan Suleiman, Hashim Yeop A Sani and Syed Agil Barakbah SCJJ).

See CRIMINAL LAW, Vol 4, para 215.

Public Prosecutor v Mohamed Zaki [1986] 2 MLJ 305 High Court, Kota Bharu (Abdul Malek J).

See CRIMINAL LAW, Vol 4, para 166.

Pendakwa Raya v Kamaruzaman bin Yusof Criminal Case No 45-15-93 High Court, Kota Bharu (Nik Hashim JC).

See CRIMINAL LAW, Vol 4, para 82.

Illian & Anor v Public Prosecutor [1988] 1 MLJ 421 Supreme Court, Kuala Lumpur (Wan Suleiman, Mohamed Azmi and Syed Agil Barakbah SCJJ).

See CRIMINAL LAW, Vol 4, para 84.

Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 High Court, Alor Setar (Lim Beng Choon J).

See CRIMINAL LAW, Vol 4, para 132.

Public Prosecutor v Forster Frank Edald Heinrich [1988] 2 MLJ 594 High Court, Penang (Edgar Joseph Jr J).

See CRIMINAL LAW, Vol 4, para 118.

A was charged with trafficking in 544.18g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). A police party while on crime prevention patrol came across A who was walking with another person, X. A was also carrying a bag at that time. According to the police when they identified themselves as police officers, X ran away while A threw the bag away. After a short struggle A was apprehended. X, however, managed to escape and could not be traced. Inside the bag were paper rolls which contained cannabis. After A's defence was called, he gave evidence on oath. A testified that X came to his parents' house and later both of them went to a shop to buy cigarettes. While A was at the shop, X went to another place. A waited for X at the shop and when X returned, he was carrying a bag. Both of them then walked back to the house belonging to A's parents. On the way, X wanted to urinate and asked A to hold the bag for him. It was at this time, the police appeared. A said that he felt frightened and threw the bag away but he denied running away or struggling with the police. After A's arrest, he took the police to his parents' house where X's clothes were recovered. A's parents gave evidence that X was at their house on the night in question. The shopkeeper also confirmed that A came to buy cigarettes from his shop. There was also evidence from the police that attempts were made to trace X's whereabouts. A called Y as a defence witness. Y was arrested the same night for possession of 50 rolls of cannabis. Y testified that he had purchased the cannabis from X on the same night A was arrested. The High Court convicted A, firstly, on the ground that his defence was false and he had failed to cast a reasonable doubt on the prosecution case. The trial judge also held that the defence had not rebutted the presumption under s 37(d) of the Act on the balance of probabilities and accordingly, the presumption under s 37(da) of the Act was also not rebutted. A appealed to the Supreme Court.

Held, allowing the appeal in part: (1) the prosecution has the general burden to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. The accused has no burden to prove his innocence and is presumed innocent until proven guilty. The accused merely has to cast a reasonable doubt in the prosecution case to be acquitted; (2) when the prosecution relies on statutory presumptions to prove one or more essential ingredients of the charge, the particular burden of proof, as opposed to the general burden, shifts to the defence to rebut such presumptions on the balance of probabilities which is heavier than the burden of casting a reasonable doubt but is lighter than the prosecution's burden to prove beyond reasonable doubt; (3) to acquit an accused at the close of the prosecution case under s 173(f) or s 180 of the Criminal Procedure Code (FMS Cap 6), the court must be satisfied that no case against the accused has been made out which if unrebutted would warrant his conviction; (4) if the court is convinced that the defence version is true, the court must order an acquittal. Even if the court does not accept or believe the defence, the court must not convict until it asks a further question as to whether the defence raises a reasonable doubt as to guilt of the accused; (5) in this case, the trial judge offered no reason why the defence, notwithstanding its falsity and unconvincing nature, had failed to cast a reasonable doubt in the prosecution case; (6) if the defence has failed to rebut the presumption of possession under s 37(d) of the Act, it does not follow that the presumption of trafficking under s 37(da) of the Act has also become irrebuttable. It is also incumbent for the court to consider as a separate exercise whether on the balance of probabilities the defence has rebutted the presumption of trafficking even though the court is satisfied that the presumption of possession has not been rebutted. In this case, the trial judge's failure to do so was a material misdirection; (7) the trial judge had failed to consider sufficiently the evidence of the defence witnesses, particularly that of Y which indicated that X was in all probability the trafficker of the cannabis. The trial judge had also acted on the wrong premise that once A had failed to rebut the presumption of possession, the presumption of trafficking had become irrebuttable. Such an error of law had occasioned a miscarriage of justice; (8) A's conviction under s 39B(1)(a) of the Act was substituted with a conviction under s 12(2) of the Act for possession of cannabis. Since s 39A of the Act, which provided for increased penalty for possession of cannabis, came into force after the date of commission of this offence, A was sentenced to the maximum five years' imprisonment from the date of this decision.

Mohamed Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169 Supreme Court, Malaysia (Jemuri Serjan CJ (Borneo).

See criminal procedure, para IX [75].

Public Prosecutor v Gan Kwong Criminal Trial No 45-12-1996—High Court, Johor Bahru (Abdul Malik Ishak J).

Syed Ali bin Syed Abdul Hamid & Anor v Public Prosecutor [1982] 1 MLJ 132 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 97.

In this case, a police party, acting on information, raided a room in a hotel and found the respondent and two travelling bags one green and the other red. They searched the bags. Nothing incriminating was found in the green bag. However, in the red bag they found two pairs of trousers, one of which was black in colour, and a black box. Inside the black box was a plastic packet which contained a substance which on analysis by the government chemist was found to be opium. Later in a follow-up operation, a man called Hassan was arrested when he came knocking at the door of the room. The respondent's story was that he shared the room with Hassan and that the red bag belonged to Hassan. The learned President of the Sessions Court found that the black pair of trousers was the type normally worn by exponents of the Malay art of self-defence. The investigating officer also said in evidence that the pair of black trousers was like bersilat trousers. Nevertheless, the learned President found that the presumption under s 37(d) of the Dangerous Drugs Act 1952 (Act 234) had not been rebutted. On appeal, the learned judge of the High Court, in allowing the appeal, held that the presumption had been rebutted and that the prosecution must prove that the accused had the power of disposal of the drug. The Public Prosecutor then applied for the following question of law to be referred to the Supreme Court: 'Whether possession for the purpose of the Dangerous Drugs Act 1952 would require proof of the power of disposal of the drug by the accused?'

Held: (1) the answer to the question is in the negative. The learned judge was wrong to say that the accused must have the power of disposal to support the conviction; (2) on the facts of this case, it is a matter of grave doubt whether on the totality of the evidence the prosecution has established that the accused had custody and control of the drug found in the bag. The benefit of the doubt should have been decided in favour of the accused; (3) the learned President of the Sessions Court did not give sufficient consideration, or gave no consideration at all, to the factors raised by the defence but merely brushed aside the defence of non-knowledge. The failure on the part of the learned President had occasioned injustice and the learned judge was right to quash the conviction and sentence.

Public Prosecutor v Kau Joo Huat [1988] 2 MLJ 91 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

Public Prosecutor v Tan Seow Chuan [1985] 1 MLJ 318 High Court, Seremban (Poh Swee Chin J).

See CRIMINAL LAW, Vol 4, para 47.

Ho Shui Ngen, the accused, was charged with trafficking in 484.2g of cannabis on 13 November 1992 at a flat No S27, 1st floor, Block A14, Sri Taman, Batu 3, Jalan Labuk, Sandakan, contrary to s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The evidence of the prosecution was that two police officers attended the above premises after receiving a call from the police station that a person had gone amok at the said address. They proceeded to the place and saw the flat was in a mess. An old man opened the door and told the officers that his son, the accused, had gone amok in a room. The room was not closed. The officers entered the room and saw the accused lying on a bed in a slumber state. They saw dried leaves, suspected to be cannabis, on a piece of paper and a plastic bottle on the floor next to the bed. They woke up the accused, showed him the dried leaves. The accused then offered to bribe the officers for not taking action against him. The accused was then handcuffed and taken to the police station. The dried leaves were later confirmed to be cannabis.

Held, acquitting the accused: (1) the prosecution had failed to prove that the accused had custody or control of the cannabis and therefore could not rely on the presumption provided by s 37(d) of the Act; (2) the mere fact that the cannabis were found in the accused's room does not necessarily prove that the accused had sole custody or control (Choo Yoke Choy v PP [1992] 2 MLJ 632 referred to). There were also doubts as to whether the accused was the sole occupant of the room; (3) the evidence of the bribe could not be conclusive evidence of guilt and was even more so when there was no elaboration as to the circumstances in which the money was offered; (4) the several items of evidence, arguably pointing to the guilt of the accused, are insufficient, just as was the case in Abdullah Zawawi v PP [1993] 2 AMR 37: 2121, to support the verdict of guilt as there were many possibilities as to how the drug came to be in the room and there was no justification to conclude that he had sole custody and control of the room.

Public Prosecutor v Ho Shui Ngen Criminal Trial No S(47)-9 of 1994 High Court, Sandakan (Ian Chin J).

This was an appeal from the conviction of the appellant for the offence of trafficking in cannabis, a dangerous drug. The appellant was sentenced to death. On appeal, the conviction was attacked on five main grounds. The argument on the first three grounds evolved around the provision of adverse inference under s 114(g) Evidence Act 1950 (Act 56) on (a) the non-production of the unknown informer; (b) the non-production of the typist of the Chemistry Department and (c) the absence of accuracy certificate in respect of the weighing machine used by the Government Chemist. The fourth ground of appeal was concerned with the opinion of the Chemist that the substance sent to him for analysis was cannabis as defined in the Dangerous Drugs Act 1952 (Act 234). It was argued that the opinion should not be accepted as it was based on defective analysis. The fifth ground was directed towards the following passage in the judgment of the learned trial judge in calling for the appellant to enter his defence: 'I accepted the evidence of Insp Khoo, DPC Lian and ASP Ahmad. They all gave their evidence in a manner highly indicative of their having no axe to grind and their having to give evidence on account of their duty to do so. They were neither vindictive nor self-righteous. They impressed me as witnesses of truth. I therefore called for the accused to enter on their defence, satisfied that there was a prima facie case for him to answer.' It was argued that in accepting the credibility of the prosecution witnesses at that stage of the trial the learned trial judge ran foul of the principle of law as laid down by the Privy Council in Haw Tua Tau v Public Prosecutor [1981] 2 MLJ 49.

Held: (1) it is essential to appreciate the scope of s 114(g) of the Evidence Act 1950 (Act 56) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but a material document by a party in his possession, nor for non-production of just any witness but only an important and material witness to the case; (2) in regard to the non-calling of the informer in this case, the protection of s 40(1) of the Dangerous Drugs Act 1952 clearly applies since the evidence showed that all the informer did was to accompany the police officer and introduce him to the appellant; (3) there was overwhelming evidence that the cannabis produced in court was indeed the one recovered by the police from the appellant and the evidence was sufficient to rebut any adverse inference under s 114(g) Evidence Act 1950, so as to render the calling of the typist as a prosecution witness, to show the clerical mistake in addressing the exhibits, wholly unnecessary; (4) in this case, the amount of cannabis was shown to be more than 600g of the drug, although only 200g are sufficient to attract the presumption of trafficking under s 37(da)(vi) of the Dangerous Drugs Act and therefore whatever inaccuracy there might be in the weighing machine (for which there is no evidence) is covered by the legal maxim 'de minimis non curat lex'; (5) in this type of cases where the opinion of the Chemist is confined only to the elementary nature and identity of the substance, the court is entitled to acept the opinion of the expert on its face value, unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion. So long as some credible evidence is given by the Chemist to support his opinion, there is no necessity for him to go into details of what he did in the laboratory, step by step; (6) it is obvious that there is nothing in the Haw Tua Tau's case to suggest that the prima facie case approach as understood in criminal trials in this country is wrong in principle. On the contrary that case re-establishes once and for all that there is no duty cast on the prosecution to actually prove their case beyond reasonable doubt as to the guilt of the accused at the close of the case for the prosecution. There is accordingly no rejection of the 'established beyond reasonable doubt' test provided that it is applied at the stage of the trial in the hypothetical form; (7) in considering the question of law whether there is some evidence (not inherently incredible) to prove one or more of the essential ingredients of the offence the judge or magistrate must by necessity evaluate and weigh all the evidence. If there is no evidence at all to prove one or more of the essential ingredients of the offence the accused must be acquitted without calling for his defence. The requirement of s 180 or s 173(f) of the Criminal Procedure Code (Cap 6) cannot be properly complied with unless the judge or magistrate considers and evaluates all the evidence adduced by the prosecution as tested in cross-examination; (8) in the present case, the learned trial judge did not err in dealing with the credibility of the witnesses at the close of the prosecution's case. If he had dealt with the accuracy of the testimony he merely erred in favour of the appellant in placing too high a burden on the prosecution before calling for the defence. Further the fact that the learned trial judge had considered extensively in his judgment the evidence addressed by the defence, shows that he did actually keep an open mind on questions of fact as to the actual guilt of the appellant until the close of the defence's case.

Munusamy v Public Prosecutor [1987] 1 MLJ 492 Supreme Court, Kuala Lumpur (Salleh Abas LP, Mohamed Azmi and Wan Hamzah SCJJ).

The accused was charged for trafficking in dangerous drugs (to wit 398.9g of cannabis) under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The drugs were found in two plastic bags and the court was satisfied, from the facts of the case, that the bags were in the possession of the accused. The first plastic bag ('P5') was found to contain 58 packets of plastic containing dried leaves and was marked as A1 to A58 respectively. The second bag ('P7') also contained dried leaves. The chemist carried out a 100% visual examination of the contents in P5 and found the contents to be of one type of plant material bearing the gross features of cannabis. Based on further tests conducted on sufficient representative sample (18.5g out of 176.2g), the chemist came to the conclusion that the 176.2g of plant material to be cannabis as defined under s 2 of the Act. On the contents of P7, the chemist concluded that the 222.6g of plant material found in P7 to be cannabis as defined under s 2 of the Act. The representative sample he took for the tests was 25g. The issue before the court was whether the prosecution had laid the ground work to invoke the presumption of trafficking under s 37(da)(vi) of the Act.

Held, amending the charge to one of possession: in order to invoke the presumption, the court has to decide whether the samples of plant material upon which the chemist had carried out the chemical test were adequate having regard to the total weight of the plant material. The most adequate quantity is without doubt an amount which is not less than 200g, that being the quantity required for invoking the presumption of trafficking. In this case, the quantity upon which the chemical test were conducted was 43.5g which was 156.5g short of the 200g required by s 37(da)(vi) of the Act. As far as the quantitative test was concerned, by using just 43.5g out of 398.8g to find the weight of cannabis present was certainly not conclusive. The chemist should have conducted chemical testing on 200g or more of the plant material to prove beyond reasonable doubt that the weight was 200g or more of cannabis. This court shall amend the charge to one of possession of 43.5g of cannabis under s 6 read with s 39A(1) and call the accused to enter his defence.

Public Prosecutor v Alex bin Hamzani Criminal Trial No K 47-01-93 High Court, Kota Kinabalu (Tee Ah Sing JC).

Leong Siew Hoong v Public Prosecutor [1988] 1 MLJ 396 High Court, Kuala Lumpur (KC Vohrah J).

See CRIMINAL LAW, Vol 4, para 228.

The defendant was riding a motor cycle when ambushed by a party of police officers. Cannabis plant material was found hanging on the ignition key to the motor cycle and also on his person hidden inside his jeans. The government chemist conducted qualitative tests on samples of the material and he found that it contained 392.2g of cannabis in total, which was the total weight of the plant material. The defendant was charged with trafficking. The prosecution relied on the presumption under s 37(da) of the Dangerous Drugs Act 1952 (the Act). The definition of cannabis applicable in this case was that of 'any part of any plant of the genus cannabis from which resin had not been extracted, by whatever name it may be designated'. The chemist was however unable to say if resin was found on the entire plant material. It transpired in the proceedings that the motor cycle and the jeans worn by the defendant were lost whilst in police custody. Also the exhibits in this case were handled at the same time as the exhibits in another unrelated case without distinguishing markings on them.

Held, amending the charge and convicting the accused of two charges of possession: (1) the resin in the cananbis had to be substantially intact to be within the definition of cannabis under the Act, and if the resin was not found or to be found in any part of the plant, then that part of the plant, devoid of resin, was not cannabis under the Act; (2) the tests conducted confirmed the preponderant presence of cannabis resin in the bulk of the plant material. However a preponderance of resin in the bulk was not a sufficient basis for equating the weight of the plant material as the weight of cannabis as defined in the Act. The tests were not capable of proving beyond reasonable doubt that resin was present in or on the entire plant material. The prosecution failed to satisfy the court that the weight of the cannabis was sufficient to invoke the presumption under s 37(da); (3) a trafficking offence was not limited to particular drugs comprised in particular parts but extended to all drugs comprised in the entire Sch 1 of the Act, and therefore it mattered not if 'cannabis' was found in Pt 2 or 3 or both, so long as 'cannabis' was listed in Sch 1. If the prosecution evidence was tending towards proof of cannabis as defined in the Act, it did not matter if the chemist had neglected to state it is not Indian hemp, or indeed the other drugs comprised in Sch 1; (4) in a trial involving a capital offence, the prosecution had to build its case on irreproachable evidence. There were features in the investigation of this case that were not salutary, such as the lost of the motor cycle and jeans and the handling of the exhibits. It was dangerous and unsafe to call the defence on the trafficking charge. The charge was amended to two charges of possession.

Public Prosecutor v Lee Boon Seng Criminal Trial No 47-5-92 High Court, Penang (Jeffrey Tan JC).

Public Prosecutor v Mohamed Ismail [1984] 1 MLJ 134 High Court, Penang (Edgar Joseph Jr J).

See CRIMINAL LAW, Vol 4, para 142.

D was charged with trafficking in 10,179.9g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). D was caught as a result of an ambush set up by the police. The car driven by D at the material time was searched by the police and the drug was found hidden in the boot. D was the sole occupant of the car at the time he was arrested by the police. D's defence was that he had been made use of by one X who had placed the drugs in the car without his knowledge.

Held, finding D guilty: (1) on the evidence, the prosecution had succeeded in establishing a prima facie case against D. The conduct and demeanour of D, taken together with the circumstances of the case as a whole, proved beyond reasonable doubt that D knew of the presence of the heroin in the car, knew of its nature, was knowingly transporting it at the material time and so was a trafficker in the same; (2) the story deposed to by D that he was a victim of circumstances was merely a concoction meant to bolster his defence that he had no knowledge of the presence of the heroin in the car. In the instant case, the false statements made by D concerning the surrounding circumstances in which the offence was committed, whilst he had the opportunity to commit the offence, could be regarded as corroboration of the evidence against him; (3) in the circumstances, the defence of D, far from rebutting the case for the prosecution, served merely to strengthen and reinforce it with the result that the court had not the slightest hesitation in finding D guilty of the offence charged. D was accordingly convicted and sentenced to death.

Public Prosecutor v Koh Soo Seng Criminal Trial No 47 (58)-28-84 High Court, Penang (Edgar Joseph Jr J).

The accused was charged and found guilty of trafficking in dangerous drugs. He was sentenced to death under s 39(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). An appeal was made to the Supreme Court.

Held, allowing the appeal: (1) in ordinary circumstances where the prosecution invokes a statutory presumption to prove its case, a mere denial by the accused either made orally or by implication from evidence contrapositive to the presumed fact must necessarily be regarded as a refutation of the presumption by the defence. In such event, the trial judge is under a duty to re-examine the factual dispute however trivial affecting the presumed fact and come to a definite conclusion on the balance of probabilities. Failure to do so would be tantamount to a serious denial of justice; (2) whether or not the defence would succeed depends on his ability to convince the court that the amount of drugs found in his possession was merely for his own use as a drug addict. In this case, the possibility that the accused was a drug addict was not even considered by the trial judge because he only paid attention to s 37(d) of the Act, without considering the accused's defence against the presumption under s 37(da) of the Act. However, the court was satisfied that the decision of the trial judge regarding the possession of drugs could be upheld; (3) therefore, the appeal was allowed and the conviction and sentence by the High Court under s 39B of the Act was set aside and substituted with a conviction under s 39A of the Act. As a substitute for the death sentence, the accused was sentenced to imprisonment for life and it was ordered that he be given ten strokes of the rotan; (4) (obiter) the factual decision given by a judge relying on the credit of witnesses who have been heard and seen by the judge himself/herself, should not be changed by the appellate court. Although the appellate court might have come to a different decision based on the written evidence, the appellate court could only come to a different decision if the advantage available to the trial judge was not enough to explain or justify his decision; (5) in this case, the accused argued strenuously that he was a drug addict and not a drug trafficker. This meant that he was challenging or opposing the presumption under s 37(da). With the existence of such a challenge or denial, it is ultimately the duty of the trial judge to re-examine by a separate exercise, whether, on a balance of probabilities, the defence had rebutted the presumption;the test to be used to decide on the burden of proof to rebut the statutory burden was whether the accused had proven his case on a balance of probabilities.

Ng Chai Kem lwn Pendakwa Raya [1994] 2 MLJ 210 Supreme Court, Malaysia (Gunn Chit Tua CJ (Malaya).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

Public Prosecutor v Mohamed Ismail [1984] 1 MLJ 134 High Court, Penang (Edgar Joseph Jr J).

See CRIMINAL LAW, Vol 4, para 142.

The accused was charged with trafficking in dangerous drugs, ie morphine. At the trial, a trial within a trial was held to determine the admissibility of a cautioned statement. The cautioned statement was admitted, and in it the accused stated that he was alone at the time of the police raid and that he had attempted to burn the morphine blocks when the police indicated that they wished to enter the house. The accused was called for his defence and in his defence he stated that he had told the police to wait while he looked for the key to open the house. The accused claimed that he had no knowledge of the two morphine blocks.

Held, convicting the accused: (1) the onus was on the prosecution to prove the voluntariness of the cautioned statement beyond a reasonable doubt. In this case, the court was satisfied that the witnesses called by the prosecution during the trial within a trial were witnesses of truth. There were no grounds sufficient to persuade the court to exclude the cautioned statement; (2) although in principle it is possible for an accused person to be convicted on his confession standing alone provided the court is of the opinion that the incriminating parts thereof are true, in practice the court always looks for corroboration. In this case, there was corroboration of the cautioned statement of the most cogent kind implicating the accused; (3) at the close of the prosecution's case, the court was of the opinion that the prosecution had tendered sufficient evidence which if unrebutted would have warranted the conviction of the accused under s 182(f) of the Criminal Procedure Code (Cap 6), and therefore the court indicated that it did not wish to hear a submission of no case to answer. Nevertheless counsel for the accused formally submitted that there was no case to answer; (4) the prosecution had adduced sufficient evidence which if unrebutted would warrant a conviction, irrespective of whether it was open to the court to assess the credibility of the prosecution witnesses at the close of the case for the prosecution.

Public Prosecutor v Chong Boo See [1988] 3 MLJ 292 High Court, Penang (Edgar Joseph Jr J).

In this case, the respondent had been convicted for trafficking in some 736.5g of heroin. The learned trial judge imposed a term of imprisonment for life with whipping of ten strokes. The Public Prosecutor appealed against the sentence.

Held: (1) the sentence of death should be imposed for trafficking in drugs other than in the most exceptional circumstances; (2) there were no extenuating circumstances in this case that would justify a classification of the case as most exceptional and there was no justification for the sentence of life imprisonment imposed. The respondent should be sentenced to death.

Public Prosecutor v Tan Hock Hai [1983] 1 MLJ 163 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

Syed Ali bin Syed Abdul Hamid & Anor v Public Prosecutor [1982] 1 MLJ 132 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 97.

Syed Ali bin Syed Abdul Hamid & Anor v Public Prosecutor [1982] 1 MLJ 132 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

See CRIMINAL LAW, para 97.

The accused was charged with having trafficked in 16.59g of heroin which was found in a house where the accused had been arrested. The heroin seized was placed in the custody of a senior police officer before their production in court. This senior police officer was never called to give evidence.

Held, acquitting the accused: (1) there had been a break in the chain of evidence concerning the custody of the heroin seized. This gave rise to an adverse inference against the prosecution's evidence. The prosecution's failure to call evidence to fill this gap was fatal and could not be cured by inviting the defence to supplement the prosecution's case by calling the witnesses offered; (2) the tests on the heroin seized were inadequate for the purposes of the Dangerous Drugs Act 1952. The seized drugs should have been tested in their totality and not by sample; (3) there was no evidence that the samples used for testing had been calibrated against any known standard of heroin. Neither was any evidence adduced to show that the instrument used to measure the samples was in good working order; (4) there was no evidence that any coning or quartering had been done when the samples of drugs had been tested. There was grave doubt therefore on the chemist's findings on the total weight of heroin seized and the accused was given the benefit of this doubt; (5) the search list which the accused signed for the heroin found was tantamount to a confession. As no caution had been administered to the accused, the heroin set out in the search list became inadmissible.

Public Prosecutor v Chew Yoo Choi [1990] 2 MLJ 444 High Court, Kuala Lumpur (Faiza Tamby Chik J).

Public Prosecutor v Lim Kin Ann [1988] 1 MLJ 401 High Court, Johore Bahru (LC Vohrah J).

See CRIMINAL LAW, Vol 4, para 145.

Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 High Court, Alor Setar (Lim Beng Choon J).

See CRIMINAL LAW, Vol 4, para 132.

The accused were charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') of possessing, with the common intention of trafficking, 383.2g of cannabis. Evidence was led by the prosecution to show that acting on information, the police, led by SP2, on 8 May 1989, had laid in ambush at Taman Indah in Bandar Taman Merah. About 20 minutes later, they saw two motorcycles (one red and one white) crossing the area, but the informer, who was riding on the white one, failed to give the signal as promised, so no action was taken by the police. SP2 then ordered his team to gather at a vacant house in Taman Indah. The informer met him there and was instructed by SP2 to bring the accused to his house in Taman Merah where a corporal (SP3) would meet them pretending to be a prospective purchaser of drugs. The rest of the team were placed in strategic positions in and around the house. At about 2.30pm that day, SP2 saw the two accused and the informer arrive on the same motorcycles that had been observed earlier at Taman Indah. Both motorcyles stopped outside SP2's house. The informer alighted and walked towards it. The first accused, the pillion rider on the red motorcycle, followed suit. He was carrying a blue plastic bag (P5) in his hand, which he left hanging on the fence on the right side of SP2's house. Then he returned to the red motorcycle. Meanwhile the informer entered SP2's porch and spoke with SP3, after which he called the two accused to enter. The second accused had, soon after, come out of the porch, collected P5 from where it had been left hanging, and brought it to SP3. Later, SP3 re-entered the house while the two accused remained outside. The police then launched their attack and succeeded in arresting both accused. The second accused had P5 in his hand at the time. After the arrest, SP2 examined P5. It contained a parcel wrapped in a Malay newspaper (P8). P8 contained bundles of dried leaves which SP2 suspected was ganja. SP2 rewrapped the leaves as he found them in P8 and returned P8 into P5. Both accused were then brought to the police station. At all material times, P5 remained in the hands of SP2. On arriving at the station, he examined the contents of P5 more closely and marked all items before keeping P5 in a locked cabinet with its contents intact. At 6pm SP2 contacted SP10, the investigative officer-in-charge, briefed him, and passed P5 to him. SP10 then examined P5 and its contents, and placed his signature and the date on P5, P8 and P9 respectively. He later passed P5 to SP8 to record its contents. SP8 returned P5 to SP10 as soon as he had done so. On 10 May 1989, SP10 wrapped P8 in another newspaper, P7, wrapped it further in brown paper, P4, sealed it 'PDRM 343' and kept it in his cabinet. On 18 May 1993, SP10 passed P4 to SP1, a chemist, for analysis. P4 was returned the next day to SP10 and ultimately stored. SP1 testified that P4 contained 383.2g of cannabis. At the close of the prosecution's case, counsel for the accused submitted that the failure of the prosecution to call the informer as witness was fatal to the prosecution's case. The first defendant also objected to the admission of his cautioned statement in court to impeach his credibility during cross-examination, claiming it was involuntary. A voir dire was held to ascertain this. The defendants' counsel also alleged that there was a material break in the chain of the prosecution evidence pointing to the fact that no mention was made as to when the police weighed the substance seized for the purposes of framing the charge.

Held, (1) at the close of the prosecution's case, the duty of the court is to see if there existed 'some evidence (not inherently incredible) to prove one or more of the essential ingredients of the offence' as alleged. The two accused had been charged with possessing with the common intention of wrongfully trafficking cannabis. Although only the second accused was physically in possession of P5 at the time of the ambush, evidence of the first accused previously handling it and of their joint presence in Taman Indah and later in Taman Tanah Merah clearly pointed to only one conclusion, that they were acting in concert to commit an offence; (2) the court found that the 'informer' was more of an agent provocateur than a mere informer as described in s 40 of the Act, having regard to the active role that he had in bringing about the arrest of the accused. Nevertheless, the failure to call him as a witness is not fatal to the prosecution's case as there was sufficient prima facie evidence to raise the presumptions under s 37(d) and (da)(vi) of the Act against the accused to justify the calling of their defence even without his evidence; (3) the insertion of the comma after the second 'question' in the caution administered to the accused under s 37A(1) of the Act could have caused the clause 'or not may be given in evidence' to be read disjunctively to possibly mean that such statements would not be admissible in court. Since the caution administered was ambiguous it was defective. Further, the explanation of the caution as given to the first accused was also not adequate, since it omitted to mention that his statements could be used as evidence against him in court. Also, the discrepancies in his identity card number, and the formal language used in the statement created doubt as to whether the statement was truly made by the first accused as required under s 37A of the Act. Lastly, the court found that the first accused gave his statement in oppressive circumstances, and therefore involuntarily. The burden of proof is on the prosecution to show that there was no oppression, not on the accused. The prosecution had failed to discharge that burden. As such the cautioned statement was inadmissible as evidence; (4) the failure of the defence counsel to cross-examine the prosecution witnesses on this crucial issue despite their allegation that it was the 'informer' that did so amounted to acceptance of the witnesses' testimony, a fortiori when the witnesses had no reason to implicate the accused; (5) the court had no doubt that it was the first accused who hung P5 on the fence;however, the failure of the prosecution to provide any explanation as to when and where P8 was weighed for the purposes of framing the charge before submitting the seized substance for analysis created a serious break in the chain of evidence relating to the identity of the seized substance. The prosecution therefore failed to prove their case beyond reasonable doubt, and it was not necessary to consider if the defendants had succeeded in rebutting the presumptions raised in ss 37(d) and (da)(vi) of the Act.

Pendakwa Raya lwn Abd Talib bin Ghani Criminal Suit No 47-4-90 High Court, Kota Bahru (Dato Arifin bin Zakaria JC).

Pendakwa Raya lwn Abd Talib bin Ghani Criminal Suit No 47-4-90 High Court, Kota Bahru (Arifin bin Zakaria JC).

See CRIMINAL LAW, Vol 4, para 70.

Public Prosecutor v Izhar bin Zainol Criminal Suit No 47-9-90 High Court, Penang (Yaacob Ismail JC).

See CRIMINAL LAW, Vol 4, para 140.

The two accused were charged with trafficking 23.71g of heroin mixed with monoacetyl morphine under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The second accused was the girlfriend of the first accused and they were both charged with common intention to commit a crime under s 34 of the Penal Code (FMS Cap 45). The first accused contended that he had no exclusive right to his room.

Held, finding the first accused guilty and acquitting the second accused: (1) and two different meanings could be referred to in the caution; (2) two elements must be proved in common intention the accused was either committing the crime or at the scene of the crime and there must be evidence of a common intention. There must be a prior meeting of the minds and presupposes some prior concert; (3) there were no exhibits besides a blue shirt found in the room that were proved to belong to the second accused and she was not the occupier nor did she have care and control of the room. Under these circumstances, the second accused was acquitted without being called upon to make her defence; (4) the first accused was a subtenant to the room of the premises. He had the care and management of the said room and is presumed to be an occupier of the room under s 37(b); (5) they were kept in a shoe box and in a rotan case. Section 37(g) of the Act therefore applies; (6) the first accused's cautioned statement was inadmissible as it was not made voluntarily: he was subjected to threats and beatings; he police had not observed the Lock-Up Rules; the cautioned statement does not contain any statement in the form and answer manner that the first accused understood the caution administered to him;there was no evidence to infer that the first accused and second accused had a prior meeting of the minds to commit the said crime. The second accused was a girlfriend of the accused;the drugs were also concealed;the court could not accept as probable that the first accused never locked his room when he went out. 'Exclusive right' must be viewed in the light of all circumstances of each particular case. Evidence that some of the accused's friends entered the room with or without his permission is not sufficient evidence that the drugs found did not belong to the accused and that he had lost his exclusive use of the room.

Public Prosecutor v Lee Chee Meng & Anor [1991] 1 MLJ 226 High Court, Johore Bahru (James Foong JC).

[Annotation: Reversed on appeal. See [1992] 1 MLJ 322.]

The appellant was called to enter his defence on a charge of trafficking in 25.84g of heroin, an offence under s 39B Dangerous Drugs Act 1952 ('the Act'), and at the end of the trial he was found guilty and sentenced to death. The prosecution evidence disclosed that in a raid conducted by the police, two packages containing 13 packets of substance were found in a room occupied by the appellant. This substance was later analysed to be heroin as defined in the Act. The facts showed that the appellant had the care and management of the room, giving rise to the presumption under s 37(b) of the Act that he should be deemed to be the occupier of the room and, therefore, under s 37(g) should be presumed to have knowledge of the drugs concealed there. Further, as he was clearly in custody or control of the heroin, he should be deemed to be in possession of the dangerous drugs by virtue of s 37(d). The weight of the heroin being more than 15g also attracted the presumption of trafficking under s 37(da) of the Act. The judicial commissioner had called for the appellant to enter his defence at the close of the case for the prosecution as there was sufficient evidence adduced by the prosecution for the defence to be called and the evidence given was credible. The appellant appealed against his conviction and sentence, on the grounds, inter alia, that the judicial commissioner had: (a) failed to undertake a maximum evaluation of the evidence at the close of the prosecution case to determine whether the case against the appellant had been proved beyond reasonable doubt; and (b) erred in law in not applying s 180 of the Criminal Procedure Code (FMS Cap 6) ('the Code') and the ratio decidendi in Khoo Hi Chiang v PP [1994] 1 MLJ 265 when calling on the appellant to enter his defence.

Held, allowing the appeal: (1) the 'case' required to be established by the prosecution under s 180 is a 'prima facie' case and not a 'beyond reasonable doubt' case. If the case required to be established by the prosecution under s 180 is a 'beyond reasonable doubt case', then the words 'if unrebutted' and 'would warrant his conviction' in s 180, would become meaningless and redundant. In the court's view, there was no definitive ruling in Khoo Hi Chiang that the word 'case' in s 180 is not a prima facie case; (2) in order to prove a prima facie case, the prosecution evidence must be capable of belief, and only beyond reasonable doubt evidence can constitute credible evidence. Under s 180, a prima facie case is one where every essential ingredient of the charge is established by sufficient, beyond reasonable doubt evidence and can be overthrown only by rebutting evidence adduced by the other side, so as to cast a reasonable doubt on the prosecution case as to the guilt of the accused; (3) the court was only bound by the ratio in Khoo Hi Chiang that at the close of the prosecution case, the duty of the court is to carry out a maximum evaluation of the evidence. The pronouncement in Khoo Hi Chiang on the purpose of the maximum evaluation test was mere obiter dicta. In any event, the court was of the view that in Khoo Hi Chiang, in stating the need for maximum evaluation of the evidence at the close of the prosecution case, the Supreme Court was only dealing with the establishment of the 'charge' and not the 'case'. Thus, the object of the maximum evaluation exercise is to determine whether the prosecution has established a prima facie case under s 180 of the Code; (4) the question whether an accused ought to be found guilty and convicted must be postponed until the conclusion of the trial as there is clearly no legal requirement for the court to decide on the guilt of the accused at the close of the prosecution case. Under our adversarial system of criminal justice, it would be intolerable if the trial court were required to find the accused actually guilty beyond reasonable doubt twice, once at the close of prosecution case and again at the conclusion of the trial, before there can be a conviction; (5) the judicial commissioner had, in accordance with s 180, correctly applied the prima facie case test when he held that there was sufficient evidence for him to call the defence. On the evidence before him, there was clearly a prima facie case to answer; (6) however, the judicial commissioner had not sufficiently directed his mind as to whether the appellant had rebutted the presumption of trafficking under s 37(da) of the Act on the balance of probabilities. Furthermore, the prosecution had conceded that the appellant ought to be convicted of possession under s 12 and not trafficking. The conviction was accordingly reduced from trafficking to possession of drugs.

Tan Boon Kean v Public Prosecutor [1995] 3 MLJ 514 Federal Court, Kuala Lumpur (Mohamed Azmi, Wan Yahya FCJJ and Zakaria Yatim JCA).

Munusamy v Public Prosecutor [1987] 1 MLJ 492 Supreme Court, Kuala Lumpur (Salleh Abas LP, Mohamed Azmi and Wan Hamzah SCJJ).

See CRIMINAL LAW, Vol 4, para 65.

The accused was charged with trafficking in cannabis. On being questioned by a corporal ('PW8') regarding the ownership of a bag in his possession and its contents, the accused attempted to escape and was arrested. While the examination of one of the prosecution witnesses was being conducted, the defence counsel applied for the accused's cautioned statement to be adduced. The prosecution objected. The main issue before the court was whether the statement was admissible in the circumstances. Another issue which arose was whether evidence of the accused's answers to SP8's questions regarding the bag could be admitted.

Held, convicting the accused of possession contrary to s 39A(2)(f) of the Dangerous Drugs Act 1952 ('the Act'): (1) since the amendment to the Evidence Act in 1993, cautioned statements were no longer admissible as evidence except through the recording officer or the accused. PP v Lin Lian Chen [1992] 4 CLJ 2086 was therefore no longer good law; (2) the accused's answers to PW8's questions could not be admitted even if the defence counsel had not objected as it would be contrary to s 113 of the Criminal Procedure Code, s 37A of the Act and s 25 of the Evidence Act 1950; (3) the prosecution had succeeded in showing a prima facie case against the accused and that the statutory presumption of trafficking had been raised against the accused; (4) in the light of all the evidence adduced, the accused had failed on a balance of probabilities to rebut the presumption of possession against him under s 37(d) that he had been in physical possession of the bag knowing that it contained the drugs; (5) nevertheless, with respect to the charge of trafficking, the prosecution relied absolutely on the presumption raised in s 37(da)(vi). Even if the presumption in s 37(d) was not rebutted, it was still open to the accused to rebut the presumption in s 37(da)(vi) on a balance of probabilities; (6) in the circumstances, the accused had rebutted the statutory presumption of trafficking.

Pendakwa Raya v Kamaruzaman bin Yusof Criminal Case No 45-15-93 High Court, Kota Bharu (Nik Hashim JC).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

A was charged with trafficking in 62.6g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). A was caught by a police officer with the drugs in his trouser-pocket. A's defence was that he was a drug addict and that he was highly dependent on heroin. A also stated that he was a heavy drug user and that the heroin was for self-consumption.

Held, convicting A for offence of possession of heroin: (1) having regard to the evidence that A was a known drug addict, that he showed signs of his addiction at the time of his arrest and during his interrogation on the day after his arrest, and in the light of the medical evidence that he was highly addicted to heroin, the court was more than satisfied that A was a confirmed heroin addict and required a continuous supply for his addition. In the circumstances, the court held that the presumption of trafficking had been rebutted by A; (2) however, in the light of the unequivocal admission by the defence that A was in possession of 62.6g of heroin, the court convicted A for the offence of possession under s 39A of the Act. A was sentenced to life imprisonment with six strokes of the cane.

Public Prosecutor v Lee Weng Thye [1990] 2 CLJ 284 High Court, Johore Bahru (LC Vohrah J).

A was charged with trafficking in 2,931.6g of raw opium, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). A was caught with a plastic bag containing the raw opium under his right arm. A's defence was that he had just picked up the plastic bag at a rubbish dump when he was arrested and he did not know it contained raw opium. The court accepted A's evidence that he earned his living as a scavenger.

Held, finding A guilty on the charge: (1) the primary facts, not inherently incredible, established on a prima facie basis that A was in possession of the bag containing raw opium. A was presumed under s 37(d) of the Act to have known the nature of the raw opium and under s 37(da)(v), he was presumed to have trafficked in the raw opium. A was called upon to rebut these two presumptions in his defence; (2) the defence had not created a reasonable doubt on the prosecution's case that A was arrested by the police after having been tailed by them with the plastic bag under his arm and that at the time of the arrest, he still had the bag of raw opium with him; (3) as A had failed to rebut the presumptions raised against him having regard to the totality of all the evidence adduced, the learned judge found A guilty on the charge and convicted him.

Public Prosecutor v Teng Soi Federal Territory Criminal Trial No 28 of 1985 High Court, Kuala Lumpur (KC Vohrah J).

D was charged with trafficking in 1,650g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). The evidence as led by the prosecution was that D was caught with a box containing the drug which was resting on the petrol tank of his motor cycle which D was about to start. D denied being in possession of the drug and contended that the police had fabricated the evidence to pin the charge of trafficking in the drug on him.

Held, convicting D: (1) in the instant case, D had not rebutted the presumption under s 37(da) of the Act. There was no break in the chain of evidence from the time the drug was received at the chemistry department up to the time of its production in court for the trial; (2) having regard to the totality of the evidence presented, D had failed to raise any reasonable doubt as to the truth of the prosecution case. The court accordingly found D guilty as charged and convicted him.

Public Prosecutor v Chu Meng Hyong Criminal Trial No 9/1984 High Court, Johore Bahru (LC Vohrah J).

A were jointly charged with trafficking in 1,513.21g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952. The cannabis were found in three areas of the house in question, namely, in the middle room, in the kitchen and in the backyard. Evidence was led to show that other persons also had access to the various parts of the house. The prosecution had lumped into one single charge one single quantity of drugs found, although separate quantities were found in the middle room, the kitchen and the backyard.

Held, acquitting and discharging both accused: (1) in the instant case, no joint concert had been established between both the accused. There was no nexus between what was found in the three areas of the house. Accordingly, the charge of joint concert under s 34 of the Penal Code (FMS Cap 45) between both the accused failed; (2) as more than one distinct offence had been mentioned in the single charge against both the accused, there should have been a breaking up of the quantity of cannabis found into separate quantities in relation to where the drug was found and the appropriate person charged accordingly. Section 163 of the Criminal Procedure Code (FMS Cap 6) provides, inter alia, that for every distinct offence of which any person is accused, there shall be a separate charge. However, as the joinder in one charge of two or more distinct offences is not an illegality fatal to the trial but merely an irregularity, the learned judge proceeded to consider what possible distinct offences could be made out from the evidence and what charges they could be framed into; (3) as regards the second accused, the learned judge found that no charge against him could be framed whether in respect of the drug found in the middle room, kitchen or backyard as there was no evidence to suggest that he had custody or control of the drug found therein. The second accused was accordingly acquitted at the close of the prosecution's case; (4) as for the first accused, the learned judge amended the original charge to one against him only and in respect only of the drug found in the septic tank in the backyard. The prosecution's case was that the first accused had made a statement to the police that led to the discovery of the drug found therein; (5) the first accused denied giving any such statement which led to the discovery of the drug in the septic tank. He also denied knowledge of the drug discovered therein and stated that several people also had access to various parts of the house; (6) the learned judge, having regard to the whole of the evidence adduced in the case, found that the first accused had succeeded in creating a reasonable doubt on the prosecution's case, that he gave the information which led to the discovery of the drug in the septic tank and that he had led them to the place and pointed out where the drug was kept. The first accused was accordingly acquitted and discharged.

Public Prosecutor v Norzilan bin Yaacob & Anor [1989] 1 MLJ 442 High Court, Kuala Lumpur (KC Vohrah J).

A were charged with trafficking in 65.90g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). The drug was recovered from underneath the plank floor at a store room. The store room was accessible to many persons including A. The case for the prosecution was that A had given information leading to the discovery of the drug and had led the police party to the store room and had pin-pointed where the drug was kept. In their defence, A denied that they had led the police party to the store room or that they had given any information leading to the discovery of the drug.

Held, acquitting and discharging A: (1) it is settled law that mere knowledge of the presence of an article in any place, without something more, can never constitute possession for purposes of criminal law; (2) in the instant case, the learned judge found as a fact that A upon being interrogated did give certain information to the police party. However, the learned judge was not satisfied beyond reasonable doubt as to what was precisely the information intended to be conveyed by A which led to the discovery of the drug in the store room. It followed therefore that evidence of those recoveries with the assistance of A was of little value since it merely afforded proof of their knowledge thereof. Apart from that, there was no other evidence connecting or tending to connect them with the offence charged; (3) the learned judge accordingly held that the presumptions of possession and trafficking under s 37(d) and (da) of the Act invoked at the close of the case for the prosecution against A had been rebutted.

Public Prosecutor v Khoo Boo Hock & Anor Criminal Trial No 47 (58)-33-84 High Court, Penang (Edgar Joseph Jr J).

A was charged with trafficking in 30.37g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The prosecution's case was that A was seen holding a plastic bag which he eventually threw near a rubbish dump when pursued by the police. A and X were seen coming out of a car and were walking towards a certain place when the police closed in on them. The bag thrown away by A was found to contain the drug in question. A denied having the plastic bag with him when he ran or having any knowledge of it or its incriminating contents. The defence of A was that the police concocted the story that he had the bag of heroin with him until he threw it away at the rubbish dump.

Held, finding A guilty on the charge: (1) on the evidence, a prima facie case had been made out against A that he had possession of the bag containing the drug in the amount specified in the charge. A had to rebut on a balance of probabilities the presumptions that he knew the nature of the substances he carried on that day to be heroin and that he was trafficking in them; (2) in the light of the compelling evidence of the prosecution, A had failed to create a reasonable doubt on the prosecution's case that he was in possession of the drug, that he knew the nature of the drug and that he was trafficking in it; (3) the learned judge accordingly found A guilty on the charge and convicted him.

Public Prosecutor v Chun Soon Eng Federal Territory Criminal Trial No 19 of 1986 High Court, Kuala Lumpur (KC Vohrah J).

A was convicted on a charge of trafficking in 1,906.15g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). A was sentenced to death. A appealed to the Supreme Court against both conviction and sentence. A's main ground of appeal was that the prosecution had failed to establish a continuous chain of evidence relating to the drug recovered, the subject matter of the charge, and that the learned judge had accordingly erred in law in calling for the defence of A. In the instant case, the drug alleged to be recovered from A was kept in a common strong room with other drugs relating to other cases. They were not labelled nor marked. No register was kept of what other drugs were kept in the room together with the drug alleged to be recovered from A. It was for these reasons that A argued that the drug recovered in the instant case was not necessarily the same drug that was sent to the chemist for analysis. In the instant case, the prosecution failed to call the customs staff officer in question who counted the rolls of cannabis recovered in the presence of A to give evidence.

Held, allowing the appeal: (1) in the instant case, there was a break in the chain of evidence with regard to the custody of the drug from the date of seizure until its production in court. Although it is unnecessary to call every witness to ensure that there is no break in the chain of evidence, it would however be fatal to the prosecution case where there is a failure to adduce evidence to provide the necessary link in the chain of evidence when there is doubt as to the identity of the drug recovered; (2) as there was such a failure in the instant case, their Lordships set aside the conviction and sentence imposed on A by the learned judge; (3) however, as A had admitted unreservedly that he bought the cannabis found with him which weighed 127.41g for his own consumption, he was found guilty of the offence of possession of the drug under s 6 of the Act. As the offence of possession of drugs is a serious one, their Lordships felt that a custodial sentence was imperative in the public interest. The sentence imposed on A was accordingly substituted to one of five years' imprisonment to run from the date of his conviction in the court below.

Mohd Osman bin Pawan v Public Prosecutor [1989] 2 CLJ 388 Supreme Court, Malaysia (Lee Hun Hoe CJ (Borneo).

A was charged with trafficking in 536g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). A was stopped by the police while driving his car in a car park. Under the car driver's seat, a newspaper package suspected to contain rolls of cannabis was recovered. The exhibits were sent to X, a chemist, for analysis. After analysis, X returned the exhibits to Y, the investigating officer. Y then handed the exhibits to another police officer, Z, who had custody of the exhibits from 1985 until 1989. Z was not called as a prosecution witness during the trial. Z was also not offered to the defence after the prosecution had closed its case during the trial. At the trial, two prosecution witnesses who had arrested A gave evidence that it was possible that another man in A's car had escaped arrest. X in his oral evidence stated that the rolls contained cannabis but did not however say that cannabis is defined under s 2 of the Act. In the chemist report which was admitted as evidence, X did say that cannabis is defined under the Act. Upon A's defence being called, A elected to give evidence on oath. A testified that on the day of his arrest, he had lent his car, first to his brother and then to his friend, B. B subsequently asked A to give him a lift to which A agreed. On their way, they stopped for a drink. While A was parking his car, his car was stopped and he was arrested. B managed to escape. The High Court convicted A and A appealed to the Supreme Court.

Held, allowing the appeal: (1) it is necessary to have evidence from the chemist stating that the exhibits contained cannabis as defined under the Act. In this case, the chemist report had confirmed that the exhibits contained cannabis as defined under the Act; (2) the prosecution has the burden to ensure that there is no break in the chain of evidence. The failure to call Z as a prosecution witness and to offer him to the defence raised a reasonable doubt as to the exhibits causing a break in the chain of evidence; (3) the trial judge did not consider the evidence of the two prosecution witnesses regarding the possibility that B might have escaped arrest. The failure to consider such evidence in the light of the defence caused injustice to A.

Abdullah bin Yaacob v Public Prosecutor [1991] 2 MLJ 237 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

A was charged with trafficking in 98.67g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the 1952 Act') and punishable under s 39B(2) of the Act. The police raided a house and found A hiding in the ceiling. A was ordered to leave the ceiling and to proceed to the hall with the police. At the hall, X, a police officer, alleged that A voluntarily made incriminatory statements which X noted down. A then led the police to a bedroom and from a compartment of the dressing table, A brought out a plastic bag. The bag contained 66 small plastic bags which consisted of substance suspected to be heroin. X took the 66 small plastic bags to the police station where he met Y, the investigating officer. X marked the 66 packets and arranged for them to be photographed. X locked up the 66 packets in his cabinet instead of handing them over to Y. X then called Z, the chemist, to go to the house where Z conducted dusting and swapping. Z also took photographs which formed part of his chemist report. X sent the 66 packets to Z for analysis. Z found them to contain heroin and stated so in his chemist report. A copy of the chemist report was served on A ten days before the trial but that copy did not contain the photographs taken by Z, of which Z referred to in the chemist report. A gave notice three days before the trial requiring Z's attendance. The prosecution attempted to tender the chemist report under s 32(b) of the Evidence Act 1950 ('the 1950 Act') by calling two witnesses. The first was a police process server who attempted to serve the subpoena on Z but was informed that Z was away overseas on a study course. The second witness who was the acting head of the Chemistry Department of which Z was no longer attached to, only said that he 'believed' Z was undergoing a course overseas. After the prosecution had closed its case and during submission, the deputy public prosecutor applied to call for further evidence under s 425 of the Criminal Procedure Code (FMS Cap 6) ('the Code') in order to admit the chemist report.

Held, acquitting and discharging A without calling for his defence: (1) A's statements were admissible under s 112 of the Code because A was not arrested at the material time; (2) there was no direct evidence where Z was. The head of the department which Z was attached to was not called to testify that Z was away overseas on a study course. There was also no evidence and strict proof that Z could not be procured without an amount of delay or expenses which appeared to the court unreasonable. The chemist report was therefore not admitted under s 32(b) of the 1950 Act. As such, there was no evidence that the exhibits seized wee drugs as defined under the 1952 Act; (3) the prosecution's application to call for further evidence was denied because such evidence would be prejudicial to A and Z was a vital witness on which the whole of the prosecution case was dependent upon. A had also specifically requested Z's attendance; (4) the very objective of handing over the exhibits after arrest to an investigating officer was to prevent tampering or construction of evidence against an accused. X did not hand over the 66 packets to Y and the exhibits were not weighed. X kept the exhibits before personally sending them to Z for analysis. X seemed to have taken over the role of the investigating officer. Adverse inferences could therefore be drawn from X's action that the exhibits could have been tampered with. Where there were more than one inference, the inference most favourable to A should be adopted.

Public Prosecutor v Liew Oon Kiong [1991] 1 CLJ 165 High Court, Johore Bahru (James Foong JC).

The accused was charged with trafficking in a dangerous drug viz, 1,803g of cannabis in contravention of s 39B(1) of the Dangerous Drugs Act 1952 (Act 234) ('the Act'), and punishable with death under s 39B(2) of the Act. The prosecution case rested mainly on the evidence of PW4 and PW6 who together with a police constable laid an ambush at Pengkalan Haram Syed Daud on 24 August 1983. The accused was stopped on the river bank. He was carrying a bag containing a brown package with dried leaves which according to the chemist report contained 1,803g of cannabis. He was arrested and brought to a police station, and he subsequently gave a cautioned statement. The crux of his defence was that he was asked by one An La to follow a motor cyclist he had brought along to the crossing point. The motor cyclist had then brought the accused to a boatman and a waiting boat in which the accused saw a bag. He was directed to bring this bag across and wait for An La on the other side.

Held: (1) the story of the accused in the light of the case for the prosecution was merely a fabrication calculated to pervert the course of justice. His version of how he was in possession of the dried leaves (P5) was purely a concoction inconsistent with his innocence; (2) the accused had failed to rebut the presumptions raised by the prosecution on a balance of probabilities. He was therefore found guilty as charged and sentenced to death.

Public Prosecutor v Mohamed Zaki [1986] 2 MLJ 305 High Court, Kota Bharu (Abdul Malek J).

Philis & Anor v Public Prosecutor and another appeal [1989] 3 MLJ 289 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 81.

A was charged with trafficking in 78.01g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The drug was recovered from a package found tucked at A's waist between the waistband of his trousers and his tucked-in shirt. A's defence was that he was a victim of a frame-up by one X. A admitted that the police discovered a package on his person after he was arrested. But A denied that he knew it contained heroin. A had earlier checked himself into a hotel room which was found registered in his name. A search by the police of the room resulted in the discovery of a bag containing empty plastic packets, two blades, a package containing three candles, a spectacle case and a piece of yellow cloth. No other items were found in the room. A had contended that the bag found in the room did not belong to him but that it belonged to Y.

Held, finding A guilty on the charge: (1) in the instant case, the entries in the hotel register relating to, inter alia, the date and time of arrival of the guest of the hotel, the name of the guest and the room assigned to the guest which are required to be kept under s 3(1) of the Registration of Guests Act 1965 by the keeper of premises where lodging or sleeping accommodation is provided, were admissible in evidence. Under s 35 of the Evidence Act 1950, an entry in a register made by a person in performance of a duty specifically enjoined by the law of the country in which the document is kept is itself a relevant fact. In the instant case, there were no other guests other than A who was registered for the room in question; (2) on the evidence adduced at the close of the prosecution's case, a prime facie case had been established that A had possession of the package of drug and that he was presumed to have known the nature of the drug contained therein and to have trafficked in it; (3) counsel for A had contended that a search list should have been given to A in respect of the search at A's hotel room. The learned judge was of the opinion that there was no legal obligation on the police under the provisions of the Dangerous Drugs Act 1952 to prepare and deliver a search list to the accused under the terms of ss 64 and 65 of the Criminal Procedure Code (FMS Cap 6). In any event, no reasonable doubt had been created on the prosecution's case that there was no other bag apart from the bag in question seized in the room; (4) on the balance of probabilities, the learned judge found that A had not rebutted the presumptions, that he knew the nature of the drug to be heroin and that he was trafficking in it. A was accordingly found guilty on the charge and convicted.

Public Prosecutor v Chin Hock Aun [1989] 1 MLJ 509 High Court, Kuala Lumpur (KC Vohrah J).

A were charged with trafficking in 6,039.99g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The drug was recovered from a house in which A were present at the material time. A1 was seen taking a bag containing the drug from the boot of a car into the house. A denied knowing that the bag contained the drug or how the bag came to be in the house. In the course of the trial, the prosecution was taken by surprise by a story put forward by A1. The prosecution applied for leave to call evidence in rebuttal in order to verify A1's story. Defence counsel opposed the application.

Held, convicting both accused on the charge: (1) having regard to the evidence in the instant case, the prosecution had established a prima facie case of trafficking in the drug against A. Under s 37(d) of the Dangerous Drugs Act 1952, A were deemed to have been in possession of the bag and the heroin, and to have known that the bag contained heroin; (2) the court is at liberty to admit evidence in rebuttal if the justice of the case so requires. In the instant case, the rebuttal evidence sought to be called by the Deputy Public Prosecutor was limited for the purpose of verifying A1's story. As the prosecution had been taken by surprise by the evidence of A1, the learned judge gave the prosecution leave to call evidence in rebuttal in order to test the credit of A1 regarding his story and not as substantive evidence at the trial; (3) as A had failed to cast a reasonable doubt on the prosecution case that they were trafficking in the drug, the learned judge found them guilty on the charge.

Public Prosecutor v Choo Chang Teik & Anor Federal Territory Criminal Trial No CR 58-3-87 High Court, Kuala Lumpur (Faiza Tamby Chik JC).

Two charges were preferred against A, the first charge for being in possession of 4.44g of heroin, an offence under s 12(2) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 12(3) and the second charge for trafficking in 97.16g of heroin, an offence under s 39B(1)(a) of the Act and punishable under s 39B(2). The case against the accused involving the two charges was properly transmitted to the High Court under s 41A of the Act. An application for a joint trial of the two offences was made under s 165 of the Criminal Procedure Code (FMS Cap 6) and was granted. A pleaded guilty on the first charge and claimed trial on the second charge. The case against A in respect of the second charge was that after his arrest on the day in question in which he was found to have had four packets of heroin in his hand (and this was the basis of the first charge against A), he led a police party to an area where he pointed to a spot at which a package holding 85 packets of heroin was discovered beside a tar drum which stood near a tree. The substance in the 85 packets was found to contain, on analysis by a government chemist, 97.16g of heroin which formed the basis of the second charge. A denied knowledge of the presence of the 85 packets containing the drug. A stated that he had bought four packets of the drug for his own consumption and that after he was arrested, two members of the police party brought a package containing the 85 packets and asked him to admit that it was his.

Held, finding A guilty on the charge: (1) the prosecution had succeeded in establishing a prima facie case against A. As there was a prima facie basis to show that he had control over the package and the drug therein, he was presumed to have possession of the drug and that he was trafficking in it; (2) as A failed to rebut the presumptions on a balance of probabilities that he was in possession of the drug and that he was trafficking in it, the learned judge found him guilty on the second charge relating to trafficking and convicted him.

Public Prosecutor v Arumugam a/l Marimuthu Federal Territory Criminal Trials No 41/85 and 23/88 High Court, Kuala Lumpur (KC Vohrah J).

A was charged with trafficking in 18.23g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The case for the prosecution was that A was arrested as the result of an ambush laid by the police and when a search was conducted on his person, a packet containing heroin wrapped with a Chinese newspaper was found inside his underpants. A denied knowledge of the drug. A contended that the packet containing the heroin was given to him by a friend and that he put the packet in his trouser pocket. A also denied that he was wearing his underwear on the day in question as he had skin disease at his loin. A raised this fact for the purpose of discrediting the prosecution's case about the recovery of the packet.

Held, finding A guilty: (1) at the close of the prosecution's case, the learned judge held that a prima facie case of trafficking in the drug had been made out against A and that the presumptions under s 37(d) and (da) arose; (2) the defence's story was highly improbable in the light of the whole evidence adduced. Considering the whole of the defence case, the learned judge was of the view that the defence had not on the balance of probabilities cast any doubt either as to the truth of the prosecution's case or as to the guilt of A. A was accordingly found guilty on the charge and sentenced to death.

Public Prosecutor v Mat Alias bin Abdul Criminal Case 58 High Court, Penang (Wan Adnan J).

A was charged with trafficking in 628g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The case for the prosecution was that acting on information received, a policy party had raided a hotel room in which A, his wife and X were found sleeping. The police party recovered two sets of keys from A. A had subsequently made a statement to the police during interrogation that he would take the police to the house where the drug was kept. A then led the police party to the house where a bag containing the drug was recovered from a room therein. The police had used two of the keys recovered from A to gain access to the house and the room. A denied that the two sets of keys were found on him in the hotel room but that the police had taken them from a table in the room. In essence, A's defence was one of denial by casting all the blame on his wife whom he did not call as a witness.

Held, finding A guilty on the charge: (1) the statement made by A to the police during interrogation was admissible under s 27 of the Evidence Act 1950 as it indicated the knowledge of A as to the fact discovered which was the recovery of the drugs in the room at the house in question. However, this knowledge did not necessarily constitute possession unless there was further evidence by the prosecution that only A had custody and control of the drug; (2) in the instant case, in view of the recovery of the keys from A, his subsequent information to the police and his leading the police to the drug with the aid of the keys recovered from him, the presumption under the Dangerous Drugs Act 1952 had been raised with regard to the fact that he was the occupier of the room, that he was in custody and control of the bag containing the drug and that he was trafficking in the drug in view of the amount involved. The prosecution had accordingly raised a prima facie case that A was trafficking in the drug; (3) having regard to the totality of the evidence adduced in the circumstances of the case, the learned judge was of the view that A had failed to rebut the presumptions raised by the prosecution upon a balance of probabilities and that he had not raised any doubt as to the truth of the prosecution's case; (4) A was accordingly found guilty on the charge and convicted.

Public Prosecutor v Wong Ah Wai Perak Criminal Trial No 3 of 1984 High Court, Ipoh (Abdul Malek J).

A was charged with trafficking in 51.76g of heroin and 26.98g of 6-monoacetylmorphine, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). A was arrested by the police in a room which he rented from X. A large quantity of drugs and hypodermic syringes were recovered from the room. A was a hardened drug addict. A's defence was that the drugs were for his personal consumption.

Held, finding A guilty: (1) having regard to the evidence, there was no break in the chain of evidence as to the history of the exhibits from the moment they were recovered until production in court; (2) in the instant case, the defence did not challenge the prosecution's evidence relating to the identity of A or to the possession of the incriminating exhibits by A. Accordingly, having regard to the presumption under s 37(da)(i)-(iii), A was called upon to make his defence; (3) in the circumstances of the case, the court was not satisfied that A had displaced the presumption under s 39(da)(iii) on a balance of probabilities. Although A was a hardened drug addict, it was highly improbable that A would have so many packets of heroin and 6-monoacetylmorphine for his own personal consumption. The presence of the drugs in neat little packets wrapped in three separate newspaper packages apparently in a marketable condition in the carrier bag militated against such a conclusion. The court was also not convinced that the 67 hypodermic syringes recovered from the six separate packages had been and were only for A's own personal use.

Public Prosecutor v Ooi Lean Chai Criminal Trial No 10 of 1984 High Court, Johore Bahru (LC Vohrah J).

D were charged with trafficking in 42.230kg of raw opium, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2) of the Act read with s 34 of the Penal Code (FMS Cap 45). The drug was recovered from the petrol tank of a car driven by D1. D2 was the registered owner of the car. D denied any knowledge of the drug found in the car.

Held, convicting D: (1) in the instant case, the evidence of the prosecution had given rise to the presumption under s 37(h) of the Act against D. A prima facie case had, therefore, been made out against D; (2) having regard to the evidence adduced in the case, D were working together to traffick the drug. The petrol tank was modified to create the special compartment after the purchase of the car. On the balance of probabilities, D had failed to rebut the presumption under s 37(h). D's stories were far-fetched and improbable; (3) as D had failed to raise any doubt as to the truth of the prosecution case, the court found them guilty of the offence charged. D were accordingly convicted and sentenced to death.

Public Prosecutor v Khoo Hi Chiang Criminal Trial 58 High Court, Penang (Wan Adnan J).

D was charged with trafficking in 19,864g of raw opium and 1,129g of morphine, both of which were offences under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The case for the prosecution was that D was seen carrying a sack on his right shoulder walking along a bund between dry padi fields. When the police party approached D, he dropped the sack and ran across the padi fields. After a short chase, D was caught and arrested. The drugs were found wrapped in 11 packages in the sack which D was carrying. D did not deny that he dropped the sack he had been carrying on the night in question. However, D's defence was that he did not know the nature of the contents of the sack he was carrying.

Held, finding D guilty: (1) on the proven facts, the prosecution had established a prima facie case against D. The statutory presumptions under s 37(d) and (da)(v) had been raised against D; (2) considering the totality of the evidence adduced, D had failed to rebut on the balance of probability the presumptions that he knew that the sack he was carrying contained the drugs in question and that he was trafficking in them; (3) in the result, D was found guilty and convicted on both charges.

Public Prosecutor v Eyan [1989] 3 MLJ 486 High Court, Kangar (KC Vohrah J).

As a result of an ambush laid by the police, D were arrested and charged with trafficking in 59.523kg of raw opium, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The drug was recovered from a compartment behind the back seat of the car driven by D1 at the material time. There was evidence to show that the compartment was specially constructed for the purpose of concealing the drug. At the close of the prosecution case, the court held that there was a case to answer only by D1. D2 was acquitted and discharged as there was insufficient evidence against him. D1 denied any knowledge of the drug found concealed in the car he was driving on the day in question.

Held, finding D1 guilty: (1) having regard to the evidence in the case, the court found that D1 was the person in charge of the car on the day in question. The evidence of the prosecution also gave rise to the presumption under s 37(h) against D1; (2) on the balance of probabilities, the court held that D1 had failed to rebut the presumption under s 37(h). As D1 had failed to cast any doubt either as to the truth of the prosecution case or as to his guilt, the court found him guilty of the offence charged. D1 was accordingly convicted and sentenced to death.

Public Prosecutor v Lim Teow Hock & Anor Criminal Trial No 47 (58)-4-85 High Court, Penang (Wan Adnan J).

A was charged with trafficking in 19,374.31g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The dangerous drug was found by customs officers in the hall of a house. On the evidence adduced by the prosecution, there was doubt as to the identity of the tenant of the house. During the trial, defence counsel objected to the admissibility of a search list which A had put his signature on as it contained incriminating material against A.

Held, acquitting and discharging A: (1) in the instant case, the search list was inadmissible in evidence as no caution was administered to A before he signed the search list. Sections 64 and 65 of the Criminal Procedure Code (FMS Cap 6) ('the Code') did not apply in the instant case as the search list in question was made not under Chapter VI of the Code but in consequence of a joint customs/police raid; (2) in the instant case, the prosecution failed to establish a continuous chain of evidence relating to the exhibits. The prosecution evidence accordingly fell short of a prima facie case at the end of the prosecution case. The learned judge accordingly acquitted and discharged A without calling for his defence.

Public Prosecutor v Lim Mung Shaing [1989] 2 CLJ 475 High Court, Kuala Lumpur (Faiza Tamby Chik JC).

D was charged with trafficking in 74.952g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The police had raided a flat which D was occupying at the material time. At the time of the raid, there were two other male Chinese in the flat. The police found a car key with the word 'Mazda' imprinted thereon. A search of the flat revealed no drugs. A police officer had then asked D as to who owns the car key. Counsel for D had, at the trial, objected to the admissibility of any reply given by D on the ground that no caution was administered to D under s 37A. The police officer had then taken D to the car park below the flat to look for the Mazda car. After sometime, the car in question was located and the police officer had asked D whether this was the car. D had nodded his head in agreement. This information relating to D's gesture was again objected to by D's counsel at the trial. The drug in question was found hidden in the boot of the car. D was then handcuffed, brought to the police station and subsequently charged as aforesaid. In his defence, D contended that he was not in possession of the drug as the car did not belong to him. Further, he had no knowledge of the drug kept in the boot of the car.

Held, acquitting and discharging D: (1) in the instant case, the reply given by D in the flat as to the ownership of the car key was inadmissible as D was already arrested at the material time and no caution was administered to him under s 37A. Section 27 of the Evidence Act 1950 could not also be relied on as the 'fact', that is, the key, had already been discovered before the question was asked; (2) D's gesture in nodding his head when asked whether this was the car was 'information' which was admissible under s 27 of the Evidence Act 1950 since it led to the discovery of a fact, that is, the car; (3) in the instant case, the statutory presumptions under s 37(d), (g) and (h) did not apply as the drug was found in a car in which there were no concealed compartments built therein. The presumption under s 37(da) also did not apply as the prosecution had failed to prove that D was in possession of the car in which the drug was found. There were serious doubts that the car key in question belonged to D or was in his control, having regard to the circumstances of the case as a whole; (4) as the prosecution had not made out a prima facie case against D, D was acquitted and discharged by the court.

Public Prosecutor v Tan Ngak Phiew Criminal Trial No 2 of 1985 High Court, Johore Bahru (James Foong JC).

A were jointly charged with trafficking in 1,294.6g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). A1 was arrested in an unnumbered house where some of the drugs were found. A2 was arrested a short while later as a result of an ambush laid by the police at the entrance to the lane leading to the area where the house was located. A2 had apparently led the police to a mining pool and pointed out to them the spot where a tin containing some more drugs were hidden. Counsel for A2 objected to a cautioned statement made by A1 from being admitted in evidence. It was contended that the caution as in s 37A of the Act was not explained to A1, that the officer who recorded the statement from A1 was acquainted beforehand with the facts of the case and that the statement was not voluntary as A1 was handcuffed throughout the recording of the statement.

Held, acquitting and discharging both accused: (1) in the instant case, the cautioned statement was inadmissible. The recording officer had merely read the caution to A1 but did not explain it and its consequence to A1. It was also highly undesirable for the recording officer to be acquainted with the background of the offence as it might affect his objectivity in the exercise of recording the statement. The handcuffing of A1 throughout the recording of the statement was a form of restraint and was oppressive as to cast doubts on the voluntariness of the statement; (2) as there was not one iota of evidence to connect A1 with the drugs recovered, the learned judge held that the prosecution had failed to establish a prima facie case against A1 who was accordingly acquitted and discharged; (3) having regard to the circumstances under which A2 led the police to the pond where the tin of cannabis was recovered, the learned judge was of the view that the prosecution had not established a prima facie case that A2 had exclusive possession, custody or control of the tin but rather it merely showed that he knew the tin was there and nothing more. As the prosecution had failed to prove a prima facie case against A2, the learned judge acquitted and discharged him without his defence being called.

Public Prosecutor v Mohd Fuzi bin Wan Teh & Anor [1989] 2 CLJ 652 High Court, Kuala Lumpur (Shaik Daud J).

A, who was stopped by the police along a five-foot way, had led the police to a house from which a number of small plastic packets containing a substance believed to be heroin were recovered. Also recovered from the house were a restricted passport and a bank account book, both in the name of A. The police had gained access to the house by using a set of keys recovered from A's trousers pockets. The suspected drugs were sent to the Chemistry Department for analysis. Z, a chemist, found the substance to be heroin and to have net weight of 19.408g. A was accordingly charged with trafficking in 19.408g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). At the close of the prosecution case, the court heard submissions from both the deputy public prosecutor and the defence counsel.

Held, acquitting and discharging A: (1) in the instant case, the prosecution had failed to prove a prima facie case against A. The prosecution had failed to adduce sufficient evidence to evoke the presumption under s 37(b), (d) and (g). There was insufficient evidence to show that A was in possession or control of the drugs; (2) in the instant case, Z was not an expert witness. No evidence were tendered to show his qualification and experience except the fact that he had been a chemist for 18 years. Without the evidence of an expert, the substance found in the small plastic packets could not be said to be heroin as defined under the Act; (3) for the above reasons, A was acquitted and discharged by the court without him being called to enter his defence.

Public Prosecutor v Chong Wei Kian [1990] 3 MLJ 165 High Court, Johore Bahru (James Foong JC).

P1-P9 were arrested by police at the Bayan Lepas International Airport, Pulau Pinang for drug trafficking. Each of the suitcases found on P1-P5 had false plastic bottoms and in the secret compartments were packets containing whitish substance which in subsequent examination and analysis by the chemist was found to be heroin. P1-P5 were charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') for trafficking in the heroin, an offence punishable under s 39B(2) of the Act. The total amount of dangerous drugs found in all the five suitcases was 12,759g of heroin. As for P6-P9, they were jointly charged for abetment under ss 33 and 39B(1)(a) of the Act and punishable under s 39B(2). The learned judge on application ordered a joint trial for P1-P9. At the end of the trial, the learned judge convicted P1-P9. P1-P5 and P7-P9 were sentenced to death. In the case of P6, the learned judge ordered a sentence of life imprisonment and eight strokes of the rotan against him. Being dissatisfied with the decision of the learned judge, P1-P9 appealed to the Supreme Court. Counsel for P1-P9 had raised, inter alia, the issue relating to the admissibility of certain documents which were admitted by the learned judge in evidence. These documents consisting of bills for hotel rooms and an American Express voucher in the name of P8 were tendered not by the maker of the documents but by persons responsible for their safe keeping. The learned judge had initially ruled the documents inadmissible as he was not satisfied that attempts had been made to trace the maker of the documents. He had subsequently reversed his earlier ruling and admitted the documents in evidence.

Held, acquitting P6 and dismissing the other appeals: (1) in the instant case, the documents in question were prepared in the course of business and the makers were outside jurisdiction who had refused or were unwilling to come to testify in this country. All the court should need so as to satisfy the requirement of s 32(b) of the Evidence Act 1950 was that there was some evidence to show that the makers' attendance could not be procured without delay or expense which the court considered unreasonable under the circumstances. The learned judge was accordingly correct in admitting those documents as an exception based on the principle of necessity; (2) their Lordships agreed with the learned judge that there was sufficient evidence to convict P1-P5 and P7-P9 for the offence of trafficking in heroin and for abetting the offence respectively. Their convictions and the sentences imposed were accordingly upheld by their Lordships; (3) as regards P6, their Lordships were of the view that there was insufficient evidence of abetment at the close of the prosecution case and that the learned judge should not have called for his defence. Their Lordships accordingly acquitted and discharged P6. The appeal by the Public Prosecutor against the inadequacy of sentence imposed on P6 was also dismissed.

Ng Yiu Kwok & Anor v Public Prosecutor and other appeals [1989] 3 MLJ 166 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

D was charged with trafficking in 283.32g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). D was arrested by X at a bus stop. X, a constable attached to the Cawangan Anti Dadah, had made the arrest while on his way home after work. From the bag which was carried by D at the material time, X recovered altogether 1,000 sticks of the drug tied into 40 bundles. X brought D to the Cawangan Anti Dadah office where X made a police report and handed the bag with the drug to the investigating officer. At the close of the prosecution case, defence counsel submitted that the prosecution had failed to establish a prima facie case against D for the reason that the first information report was not tendered in evidence.

Held, acquitting and discharging D: (1) in the instant case, the prosecution relied solely on one vital witness, namely X. The first information report purported to be made by X should therefore have been tendered in evidence. The failure to do so was a very serious omission and would deprive D of an opportunity to cross-examine X. The absence of the first information report had also weakened the prosecution case; (2) in the instant case, the failure to produce the first information report also raised the presumption in s 114(g) of the Evidence Act 1950 that the report if produced would have been unfavourable to X; (3) in the circumstances, D was discharged and acquitted without being called to make his defence to the charge.

Public Prosecutor v Abdul Razak bin Johari [1991] 1 MLJ 105 High Court, Kuala Lumpur (James Foong JC).

As a result of an ambush laid by the police, D was arrested and charged with trafficking in 28.5g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The evidence led by the prosecution was that the police had stopped D's car and had recovered a packet wrapped in Chinese newspapers containing the drug from D's lap. D denied any knowledge of the drug in the car. D stated that he had rented the car from X and that the drug could have been placed in the car by someone else.

Held, acquitting and discharging D: (1) in the instant case, the prosecution had succeeded in establishing a prima facie case against D. The statutory presumptions of possession of the drug and trafficking therein had been raised against D; (2) however, having regard to the totality of the evidence in the instant case, the story of the defence that no drug was recovered at the scene could reasonably be true. Further, it was not safe to rely on the prosecution evidence to convict D in view of the several inconsistencies and contradictions therein. In view of all these findings, and as D's explanation was consistent with his innocence and had rebutted the statutory presumptions raised against him, the court ruled that the offence of trafficking had not been established against D and acquitted and discharged him.

Public Prosecutor v Lee Shau Kee Criminal Trial No 16 of 1985 High Court, Johore Bahru (Abu Mansor J).

A1-A2 were charged with trafficking in 1,614.1g of cannabis in furtherance of their common intention under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') which is punishable under s 39B(2) of the Act read together with s 34 of the Penal Code (FMS Cap 45). The police in three unmarked cars followed a 'Ford' car for some distance until a pillow was seen thrown out from the Ford car. X, who was driving the first police car, stopped to pick up the pillow. The other police cars continued to follow the Ford car until it stopped after meeting with an accident. The Ford car was driven by A1 while A2 was beside him carrying a child. A1 and A2 were husband and wife. The pillow was found to be stuffed with suspected cannabis. X kept the pillow and its contents for more than five hours before handing them over to Y, the investigating officer. The exhibits were not marked by Y until they were packed six days later. There was no explanation as to what X did with the exhibits before handing them over to Y. The prosecution adduced evidence that the pillow recovered by X was identical to two pillows subsequently found in the house of A1-A2. There was no evidence as to who actually threw the pillow out. The High Court held that A1-A2 had control or custody of the pillow to raise the presumption of knowledge of the contents of the pillow under s 37(d) of the Act. The High Court therefore convicted A1-A2 who appealed to the Supreme Court.

Held, allowing the appeal: (1) there were serious gaps in the chain of evidence with regard to the pillow thrown out of the car and the exhibits produced in court. On this ground alone, A1-A2 should not have been called upon to enter their defence; (2) there should be evidence of a common intention or evidence from which such common intention could be properly inferred to commit the act actually committed. The mere fact of a pillow being thrown out of the car was not evidence of common intention or evidence from which such common intention could be properly inferred; (3) the mere fact that the pillow was thrown out of the car was insufficient to establish control or custody of the pillow. There was thus no evidence to raise the presumption under s 37(d) of the Act. Consequently, the presumption of trafficking under s 37(da) of the Act also did not arise.

Shamsuddin bin Hassan & Anor v Public Prosecutor [1991] 3 MLJ 314 Supreme Court, Malaysia (Jemuri Serjan CJ (Borneo).

Public Prosecutor v Wong Ah Wai Perak Criminal Trial No 3 of 1984 High Court, Ipoh (Abdul Malek J).

See CRIMINAL LAW, Vol 4, para 172.

A1 and A2 were charged with trafficking in 7,645g of raw opium, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') read with s 34 of the Penal Code (FMS Cap 45) and punishable under s 39B(2) of the Act. The drug, contained in a tin, was recovered from the ceiling of a room in a house which the police party raided. The drug was recovered in A1's presence in the room. A1, when asked what was in the tin, had made a statement to the police that the tin contained 'ubat cina' (ie chinese medicine). The tin was then opened and found to contain the raw opium. The defence was that they did not know the existence of the tin containing the drug and that this room of theirs was accessible to the other occupants of the house. Counsel contended that A1's statement to the police was inadmissible as it was made when A1 was already under arrest.

Held, convicting A1 and acquitting A2: (1) under s 37A of the Act, any statement voluntarily made by any person charged with any offence against the Act before a caution has been administered to him is admissible if made by him before his arrest. In the instant case, the statement of A1 was admissible in evidence as he was arrested only after the discovery of the drug in the tin. Although A1 was not free to go as he liked during the search, that did not mean that he had been arrested. There was no evidence that A1 had tried to run; (2) having regard to the presumptions under s 37(d), (da) and (g) of the Act, the learned judge held that a prima facie case had been made out against A1; (3) X, a prosecution witness, had given evidence which differed from his earlier statement to the police. The court granted permission to the Deputy Public Prosecutor to cross-examine under s 154 of the Evidence Act 1950 to test the veracity of the witness. The learned judge was of the view that whether the testimony of X should be rejected in whole or in part depends on the result of the cross-examination. In the result, the learned judge found X's explanation to be reasonable and the learned judge did not wholly reject his evidence; (4) in the instant case, the learned judge found that on the balance of probabilities, A1 had failed to cast any doubt either as to the truth of the prosecution's case or as to his guilt. The learned judge accordingly found A1 guilty and convicted him. As regards A2, the learned judge held that she had succeeded in casting a reasonable doubt on the prosecution's case that she knew of the existence of the tin. A2 was accordingly acquitted and discharged.

Public Prosecutor v Tan Chye Joo & Anor [1989] 2 MLJ 253 High Court, Penang (Wan Adnan J).

A was charged with trafficking in 409.7g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). A and his companion were riding a motor cycle when they were spotted by the police. A was seen throwing away a package which contained the drug. The dried leaves contained in the package which was recovered by the police were found on analysis by a government chemist to be cannabis weighing 409.7g. A, while admitting his presence at the scene, denied carrying or throwing away the package of drugs. A's defence was that one X carried the package, the contents of which A did not know and that it was X who threw away the package when the police chased them.

Held, convicting A: (1) the prosecution had established a prima facie case that A at the time, date and place as stated in the charge was in possession of 409.7g of cannabis, a dangerous drug within the meaning of s 2 of the Act and that he was presumed to have trafficked in it; (2) having regard to the totality of the evidence adduced in the case, the learned judge found that it was A and not his companion who was in possession of the bag of cannabis and that it was A who threw the bag away. As A had failed to rebut, on a balance of probabilities, the presumptions that he knew the drug to be cannabis and that he was trafficking in the drug, the learned judge found him guilty on the charge and convicted him.

Public Prosecutor v Shaaban bin Abdul Rahman [1989] 2 MLJ 313 High Court, Alor Setar (KC Vohrah J).

D was charged with trafficking in 1,852.3g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The police had stopped D who was riding a motor cycle at the material time and had recovered the drug from a basket placed on the carrier of the motor cycle. The drug was placed in two packages wrapped with a newspaper. D's defence was that he was unaware of the drug placed in the basket.

Held, finding D guilty: (1) on the proven facts, the statutory presumptions under s 37(da) and (d) had been raised againt D; (2) having regard to the conduct and demeanour of D in court taken together with the whole circumstances of the case, the court rejected D's defence that he had no knowledge whatsoever of the drug inside the basket. As D had failed to rebut the presumptions under s 37(da) and (d) on a balance of probabilities, the court found him guilty of the offence as charged, convicted him and sentenced him to death.

Pendakwa Raya v Abdul Rashid bin Mohamad Criminal Trial No 58-4-88 High Court, Alor Setar (Mohd Saari JC).

A was charged with trafficking in 856.1g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). A was caught red-handed with the bag containing the drug. The bag was opened on the spot and found to contain cannabis. X, one of the prosecution witnesses, had earlier informed the police that A wanted to sell the drug to him. The police accordingly laid an ambush. At the time of A's arrest, X was with A. When A was arrested, X ran away as planned. The essence of A's defence was that he had no knowledge of the drug at all.

Held, convicting A: (1) on the facts, it was manifestly clear that A was caught red-handed with the bag which contained the drug. Under s 37(d) of the Act, A was deemed to have in his possession the drug and to have known the nature of such drug until the contrary. Further, under s 37(da)(vi), having regard to the quantum, A was presumed until the contrary is proved to be trafficking in the said drug; (2) in the instant case, X was not an accomplice since he had made himself an agent for the prosecution before the actual commission of the offence. Although X was an agent provocateur, his evidence was admissible under s 40A of the Act. Under the same section, X's evidence need not be corroborated. In any event, X was amply corroborated by the evidence of other prosecution witnesses; (3) having regard to the evidence as a whole, A had failed to rebut the statutory presumptions on the balance of probabilities. As the prosecution had proved its case beyond reasonable doubt, the learned judge found A guilty of the offence for which he was charged and convicted him. A was accordingly sentenced to death.

Public Prosecutor v Padi bin Abdullah [1989] 2 MLJ 60 High Court, Labuan (Mohamad Noor J).

A was charged with trafficking in 277.60g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). The prosecution's case was that A agreed to sell about 700 rolls of 'ganja' to X, a police constable, who acted as an agent provocateur. After agreement had been reached on the purchase of the drug, A went into a building to fetch the drug. When A came back with a bag and approached X, he was arrested by X. The bag was found to contain 680 rolls of 'ganja', which on analysis by a government chemist were found to be cannabis which weighed 277.6g. Two men, Y and Z, had introduced X to A. One of them had represented to A to the effect that there was to be a purchase of cannabis from him on the day in question and had induced A to agree to sell the drug to X. In the course of the trial, a question arose as to whether Y and Z who accompanied X for his meeting with A were agent provocateurs or mere informers. The defence had requested for the disclosure of their names. A in his defence denied knowledge of the cannabis in the bag. A admitted carrying the bag but that he had done so at the request of a friend.

Held, finding A guilty: (1) whether a person is an informer or has become an active agent provocateur would depend on the facts of each particular case. In the instant case, the acts of Y and Z were not acts of mere informers but of agent provocateurs and like X, the protection afforded to informers under s 40(1) of the Act did not apply to them. X had stated in his evidence that Y and Z were part of his team. Accordingly, Y and Z were eventually, at the close of the prosecution's case, made available to A; (2) at the close of the prosecution's case, the primary facts, not being inherently incredible, showed that A had agreed to sell about 700 rolls of cannabis to X and that he was carrying 680 rolls of cannabis for delivery to X when he was arrested. These were acts which constituted trafficking in a dangerous drug, namely cannabis, an offence under s 39B(1)(a) of the Act. The learned judge accordingly held that a prima facie case had been made out against A and called upon him to make his defence on the charge; (3) having regard to the totality of the evidence in the instant case, the learned judge held that A had failed to create any reasonable doubt on the prosecution's case that he agreed to sell cannabis to X and that he was carrying the cannabis for delivery to X when he was arrested. A was accordingly found guilty of the offence for which he was charged and was convicted.

Public Prosecutor v Manoharan a/l Ratnasamy [1989] 1 MLJ 504 High Court, Kuala Lumpur (KC Vohrah J).

A was charged with trafficking in 36.97g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). Throughout the trial, A 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 crux of A's defence was that he was at the material time a drug addict and that the heroin found on his person was for his own consumption. A accordingly contended that since there was overwhelming evidence that he was a hard core addict at the time of his arrest, the presumption of trafficking had been rebutted on the balance of probability. The learned judge, although he accepted the evidence that A was a drug addict nevertheless rejected A's explanation of the ten packets of heroin found on his person. The learned judge was satisfied that A was trafficking in the drug as charged and convicted him. A appealed to the Supreme Court.

Held, dismissing the appeal: (1) the definition of 'trafficking' in the Act is wide and includes not only buying and selling but also carrying, concealing and keeping. In the instant case, the facts proved fall squarely into the definition of 'trafficking'. A was found in possession, custody and control of the heroin, the weight of which was more than 15g. The presumption of trafficking under s 37 of the Act accordingly arose; (2) A had failed to rebut the presumption of trafficking on the balance of probability. A had admitted that the drug found on his person was for distribution to his friends. Furthermore, in his cautioned statement, A stated that he wanted to sell the drug to one X; (3) as there was ample evidence to convict A on a charge of trafficking in dangerous drug under the Act, their Lordships accordingly dismissed A's appeal and confirmed the sentence imposed.

Teh Geok Hock v Public Prosecutor [1989] 3 MLJ 162 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

On 24 August 1985, at the Bukit Kayu Hitam Customs Complex, Kedah, the accused was found in possession of two boxes of oranges. Upon closer inspection, the customs officers discovered 12,722.9g of raw opium hidden in the bottom of the boxes and the accused was charged with trafficking in a dangerous drug under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). In his cautioned statement, the accused claimed that he was paid by someone in Hadyai to take the boxes to Johore Bahru where they would be picked up by someone who would meet him. He was told that the boxes contained oranges and he had no knowledge of the raw opium.

Held, acquitting the accused: (1) the cautioned statement had to be assessed as to whether it weakened or strengthened the prosecution's case. At the close of its case, the prosecution had established that the accused had custody of the boxes. Following the presumption in s 37(d) of the Act, from custody flows knowledge as to contents; (2) the accused had, however, on a balance of probabilities rebutted this presumption. His explanation of how the boxes were entrusted to him and the fact that he was the one who brought the attention of the customs officers to the boxes and his subsequent assistance to the authorities were consistent with his innocence.

Public Prosecutor v Tee Kim Pong [1990] 2 MLJ 160 High Court, Alor Setar (KC Vohrah J).

A was charged with trafficking in 112.63g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2). A was arrested by the police at the landing on the first floor of a three-storey building. One of the keys seized from A was used to unlock A's car parked near the building. In the glove compartment of the car was found, inter alia, two plastic bags containing substances which on analysis by a government chemist were found to contain 112.63g of heroin. A denied knowledge of the drug found in the glove compartment of his car. A stated that his friend, X, had earlier borrowed his car on the day in question. The car was subsequently returned to A by X who requested A to fetch his (X's) girlfriend from the flat located on the first floor of the building.

Held, finding A not guilty: (1) in the instant case, the prosecution had established primary facts which indicated on a prima facie basis that A had, at the least, control, custody and possession of the drug. A was accordingly presumed to have knowledge of the nature of the drug and to have trafficked in it under s 37(d) and (da)(i) of the Act. A was called upon to make his defence on the charge; (2) on an assessment of the totality of the evidence adduced in the instant case, it was probable that A was an innocent victim of a police trap which misfired. The trap was probably meant for X who probably existed and who had placed the drug in the glove compartment of A's car which X borrowed on the day in question and that X had got down from the car before A went to fetch X's girlfriend. The learned judge accordingly held that A had rebutted, on a balance of probabilities, the presumptions of possession and knowledge of, and the trafficking in, the drug. A was acquitted and discharged.

Public Prosecutor v Wong Kiew Meow Federal Territory Criminal Trial No 17/87 High Court, Kuala Lumpur (KC Vohrah J).

D was charged with trafficking in 3,048.9g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The evidence for the prosecution was that D had led the police to three spots behind his house where various quantities of the cannabis were discovered. The prosecution also relied on a cautioned statement made by D in which it was mentioned that the police searched the compound of D's house and found a plastic bag containing the cannabis. In his defence, D denied that he had told the police that he had kept the cannabis in the bushes behind the house. D also denied leading the police to the discovery of the cannabis.

Held, finding D not guilty: (1) in the instant case, the prosecution had succeeded in raising the presumption of trafficking against D. However, D had created a reasonable doubt in the prosecution case. The evidence adduced by both the prosecution and the defence did show some shadowy figures who might have played a role in the hiding or in the trafficking of the cannabis that had been seized in the instant case; (2) the cautioned statement of D relied on by the prosecution as part of its case did not show that D admitted to his having hidden the drug or his showing where the drugs were hidden. The defence of D was consistent with his cautioned statement; (3) in the result, D was acquitted and discharged by the court.

Public Prosecutor v Mohd Salleh bin Mohd Saad Criminal Trial No 14 of 1986 High Court, Alor Setar (KC Vohrah J).

D1 and D2 were charged with trafficking in 283.8g of heroin in furtherance of a common intention, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2) read with s 34 of the Penal Code (FMS Cap 45). D3 was charged with abetting the above offence committed by D1 and D2. D1 and D2 were caught as a result of an ambush laid by the police. D3 was arrested later upon information given by D2 to the police. The prosecution relied on the cautioned statements of D2 and D3 as part of its case against them. D denied knowledge of the drug recovered by the police and contended that the cautioned statements were inadmissible as they were not made voluntarily.

Held, finding D1 and D3 guilty: (1) in the instant case, there was no evidence that the cautioned statements were made by D2 and D3 under duress. D2 and D3 had perfectly understood the whole proceedings. In the result, the court ruled that the cautioned statements of D2 and D3 were admissible; (2) in the instant case, the prosecution had made out a prima facie case against D on their respective charges. With regard to D1, the court found that he had not rebutted the presumptions raised against him upon a balance of probabilities nor raised any reasonable doubt as to his guilt. D1 was accordingly found guilty of the offence charged, convicted and sentenced to death. As for D2, the court accepted his explanation that he was totally unaware of the drugs. The court ruled that the cautioned statement of D3 which implicated D2 could not be used against a co-accused and totally disregarded it as regards D2. In the result, D2 was acquitted and discharged at the end of the trial. In regard to D3, the court found that the offence of abetment had been proven against him as there was no doubt as to his involvement in the circumstances. D3 was accordingly found guilty of the offence charged, convicted and sentenced to death.

Public Prosecutor v Tan Teong Ing & Ors Criminal Trial No 14 of 1985 High Court, Ipoh (Abdul Malek J).

D was charged with trafficking in 76,620g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The drug was recovered by the police from a room to which D had access. The lock on the door of the room had been opened with two sets of keys belonging to D. D's defence was that the drug could not be said to be under his control as other people also had access to the room.

Held, convicting D: (1) in the instant case, the prosecution had made out a prima facie case against D. There was evidence to show that D was the sole occupier of the room in question and that he had possession of it. The drug recovered from D was accordingly under his control. The prosecution had also successfully invoked the presumptions under s 37(d) and (da); (2) on the balance of probabilities, the defence had failed to raise any doubt either as to the truth of the prosecution case or as to the guilt of D. D was accordingly found guilty as charged and was convicted and sentenced to death.

Public Prosecutor v Ang Hoe Peng Criminal Trial No 47 (58)-1-85 High Court, Penang (Wan Adnan J).

D were charged with trafficking in 608.92g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). The evidence as led by the prosecution was that the marine police had signalled a sampan, with D1 on board, to come towards them to enable a check to be carried out. The marine police, on checking the sampan, found the drug in a bag which D1 had placed between his legs. The sampan, when signalled, was coming towards the Malaysian side of the river from the Thai side. D were arrested and subsequently charged with the offence of trafficking in cannabis. The crucial issue for determination was whether the alleged offence was committed on the Malaysian side of the river.

Held, acquitting and discharging the accused: in the instant case, the prosecution had not adduced conclusive evidence to show that the alleged offence was committed within the local jurisdiction. There was evidence to show that the river boundary was a moving boundary and that it kept changing from time to time. As the evidence of the prosecution fell short of certainty that the alleged offence was committed on the Malaysian side of the river, the court acquitted and discharged D at the close of the case for the prosecution.

Public Prosecutor v Ahmad bin Husein & Anor Criminal Trial No 47(58)-1-86 High Court, Kota Bahru (Idris J).

The three accused were charged with trafficking in dangerous drugs, to wit 38,8078kg of raw opium, contrary to s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) ('the Act'). Before the charge was read, the Deputy Public Prosecutor requested the court to decide on a preliminary point as he wished to reduce in the charge the amount of raw opium by 0.0001kg, ie from 38.8079kg to 38.8078kg. The main question in this case was whether the Public Prosecutor's original consent under s 39B(3) of the Act was valid. Eventually, the first accused pleaded guilty to the amended charge which was withdrawn against the second and third accused.

Held: (1) the consent was valid as the Public Prosecutor himself conducted the prosecution. It was given for a larger amount of dangerous drugs, and in any event the difference in weight was so minimal as to derogate the essence of the offence of trafficking in dangerous drugs to other offences in the Act. The difference did not prejudice the accused; (2) in view of the substantial quantity of dangerous drugs involved, the first accused had no mitigating factors in his favour and should be sentenced to death.

Public Prosecutor v Lim Boon Hock & Ors [1985] 2 MLJ 219 High Court, Johore Bahru (Yusoff Mohamed J).

The accused was charged with trafficking in 19.9g of dangerous drugs. Evidence was adduced by the prosecution to the effect that she was arrested with the drugs in her hands, in a plastic bag, The defendant denied she was arrested in possession of the bag. She claimed that the drugs were owned by one Ah Chai and were meant for another person Ah Chong, and that they were seized from the floor in a coffeeshop, while she had been merely standing nearby. It was Ah Chai's wife who had left the bag on the floor. She had not known it contained drugs but knew the bag was for Ah Chai. A witness for the defendant who claimed to have cohabited with Ah Chong testified that he was a drug trafficker.

Held, convicting the accused: (1) there was a reasonable doubt that Ah Chong was a drug trafficker and that Ah Chai was his supplier, but the court still had to see if there was a reasonable doubt that the accused was not in any way involved with the crime as charged; (2) the inconsistency between the evidence of the police and the accused was of such a nature that one of the parties was obviously lying; (3) there was no rule that required police witnesses to have corroboration before their evidence could be believed. Further, the court was entitled to presume that official acts had been regularly performed. The court therefore accepted the evidence of the prosecution witnesses and the burden shifted to the defendant to raise a reasonable doubt on the prosecution case; (4) in this case, there were inherent contradictions in the testimony of the accused which made the court disbelieve her version. The defendant therefore had failed to rebut the prosecution case by raising a reasonable doubt.

Public Prosecutor v Cheok Yu Pin Criminal Case 47-17-95—High Court, Shah Alam (Abdul Wahab J).

See criminal law, para V [49].

Abdul Karim bin Pak Kub & Anor v Public Prosecutor [1997] 2 MLJ 112 Court of Appeal, Kuala Lumpur (Shaik Daud, Mahadev Shankar JJCA and Abdul Malek Ahmad J).

The appellant was convicted in the High Court for trafficking in a dangerous drug, ie cannabis weighing 793.85g, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and sentenced to death. It was undisputed that a bulk of dried leaves believed to be cannabis wrapped in newspaper was recovered from the appellant's bag at the time of the arrest. The dried leaves were sent promptly to the government chemist for examination and he concluded that it was cannabis, within the meaning of s 2 of the Act, weighing 793.85g. The only defence put forward was that the cannabis was planted in the bag, which was rejected by the trial judge. The appellant appealed against his conviction on, inter alia, the ground that the chemist's testimony did not prove beyond any reasonable doubt that the bulk of dried leaves was cannabis.

Held, allowing the appeal: (1) the chemist made no mention of the results of his physical examination. For example, he did not say that the plant material was all the same type and physical features as that of cannabis, nor did he say what were the results of his microscopic examination. Nor did he tell the court what were the tests he conducted using chemical methods; (2) but more importantly, under re-examination by the prosecution, the chemist said that he 'did not obtain the weight of each sample taken but the total weight of samples taken for analysis is more than 10% of the net weight of 793.85g'. The question is what does 'more than 10% of the net weight of 793.85g' mean? Does it mean 11% or 12% or more than that? The expression is ambiguous and there should be no ambiguity on such a matter where the life of a subject is at stake. The chemist's testimony must be clear and convincing; (3) while the physical examination of the whole plant material might well establish, on the balance of probabilities, that the plant material was cannabis within the meaning of s 2, it was necessary to take the matter further and establish beyond any reasonable doubt that that was so; (4) this further step would, of necessity, have involved the carrying out of chemical tests on adequate quantities of the plant material. What would be adequate quantities for this purpose would depend on the particular circumstances of each case. No useful purpose would be served by laying down any mathematical formula; (5) the court was not satisfied that the samples, upon which the chemist had carried out the tests were adequate, having regard to the total weight of the plant material; (6) the conviction should be quashed and in substitution thereof, the conviction should be for possession of cannabis in contravention of s 39(A) of the Act.

Leong Bon Huat v Public Prosecutor [1993] 3 MLJ 11 Supreme Court, Malaysia (Jemuri Serjan CJ (Borneo).

The two accused were charged with trafficking in 471.75g of cannabis on 21 July 1991, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') read with s 34 of the Penal Code (FMS Cap 45) and punishable under s 39B(2) of the Act. At the trial, the government chemist ('the chemist') who appeared as a prosecution witness, said that the subject matter of the charge was cannabis, a dangerous drug as defined under s 2 of the Act. The chemist, however, did not specifically rule out that the cannabis involved could be cannabis (Indian hemp). In the working sheets on which the chemist based her tests and analysis, it was merely stated that the subject matter of the charge was found to be cannabis. In the chemist's report, she stated that the subject matter of the charge was cannabis as defined in the Act. The defence challenged the oral evidence of the chemist, contending that the evidence given was an afterthought tailored to satisfy current case law. The main issue which arose was whether the cannabis involved in this case was of the genus cannabis under the definition of 'cannabis' in s 2 of the Act.

Held, amending the charge and convicting the accused of possession: (1) as the prosecution had chosen to state cannabis in the charge, that essential ingredient must be proved beyond all reasonable doubt. On the evidence, it was not clear whether the cannabis involved in this case was cannabis within the definition of 'cannabis' under s 2 of the Act or cannabis falling under Pt I or Pt II of the schedule to the Act or was it cannabis (Indian hemp) under Pt III of the schedule to the Act. While the chemist might be referring to the direct definition of cannabis in s 2 of the Act, there was also a probability that reference was being made to cannabis (Indian hemp); (2) the contention of the defence was not untenable in the circumstances of the case. Both the working sheets and the chemist's report did not support the oral evidence of the chemist at the trial but supported the contention that the oral evidence of the chemist was an afterthought. Therefore at the close of the case for the prosecution, it had not made out a prima facie case against both the accused beyond all reasonable doubt; (3) by virtue of ss 91 and 92 of the Evidence Act 1950, the chemist, in her oral evidence, could not contradict or vary or add to her chemist's report which had been issued under s 399 of the Criminal Procedure Code (FMS Cap 6); (4) considering the evidence and bearing in mind the fact that it was not disputed that the accused were in possession of the drugs involved, it would be appropriate to amend the charge to a lesser one under s 12(2) of the Act. The accused having pleaded guilty to the amended charge, they were accordingly convicted and sentenced to five years' imprisonment; (5) (per curiam) in most cases, the court is normally reluctant to hold that the evidence of a professional witness is unsatisfactory. However, where the accused persons are being charged with a serious offence, the court should apply the stringent requirement of the law.

Public Prosecutor v Krishnan a/l Letchumanan & Anor [1995] 2 MLJ 690 High Court, Taiping (Zulkefli JC).

Both accused were charged with the offence of jointly and in furtherance of a common intention trafficking in 644g of cannabis under s 39B of the Dangerous Drugs Act 1952 ('the Act'). They were arrested in an operation staged by the police which involved the use of an informer and three agent provocateurs to buy the drug from the accused. The informer introduced Det Sgt Maj Saidin ('Saidin') to the first accused on 22 October 1992 after two earlier attempts had failed. At that meeting the first accused showed Saidin samples of the drug and a discussion on the terms of the proposed purchase took place. The following day the informer and Saidin again met the first accused whereat the first accused made a counter-proposal on the price of the drug. Subsequent meetings took place between Saidin and the first accused without the presence of the informer whereat the arrangements for the purchase of the drug were finalized. On the day of the proposed delivery of the drug, Saidin introduced the other two agent provocateurs ('Zorki' and 'Shakri') to the first accused. That night at the place arranged for the delivery, the first accused took a bag from the second accused and from it the first accused brought out a plastic bag and showed its contents to Zorki. Zorki then arrested the first accused while Shakri together with some other policemen arrested the second accused. The plastic bag was found to contain plant materials which were later analysed by the government chemist to be cannabis. At the trial, counsel for the accused submitted that the charge was vague as the chemist had failed to state whether the cannabis was cannabis as defined under s 2 of the Act and which part of the First Schedule the drug came under. It was argued that the drug could be 'Cannabis (Indian hemp)' under Pt III of the First Schedule. Counsel also argued that the informer could not claim protection under s 40(1) of the Act as he was in fact an agent provocateur and the prosecution's failure to call him as a witness should attract an adverse inference under s 114(g) of the Evidence Act 1950 ('the 1950 Act').

Held, amending the charge and convicting the accused on the amended charge of possession: (1) to prove that the drug cannabis is a dangerous drug, the prosecution needs to prove that the drug is listed in any part of the First Schedule and that it is of the genus cannabis from which the resin has not been extracted. It is clear that cannabis is listed in all the three parts of the First Schedule to the Act. As the chemist had testified that the drug he analysed was from the genus cannabis in which he found an abundance of resin, there could not be any ambiguity that the cannabis he analysed was a dangerous drug as defined under s 2 of the Act. It was immaterial that the chemist did not determine whether the drug could be 'Cannabis (Indian hemp)' because in determining that the drug was from the genus cannabis, it was sufficient for the purpose of proving that the drug was a dangerous drug under the Act. There was no need to determine the species of the cannabis because under s 2, the cannabis could be known 'by whatever name it may be designated'; (2) the term 'informer' is not defined anywhere in the Act. In ordinary parlance, the word is used to describe a person who gives information. A police informer is therefore a person who provides information to the police with regard to the commission of a crime; (3) while a police informer is not an agent provocateur merely becuase he has accompanied a police agent and introduced him to a drug trafficker, if the informer is present on more than one occasion including the occasion of an accused's arrest, he is a particeps crimini and not an informer; (4) in the present case, the informer had to be present twice with Saidin before the first accused agreed to supply the drug. It could not be objectively discounted that the sale of the drug would not have been brought about without the informer having been involved in the negotiation. Besides, the informer had to make three appointments before Saidin met the first accused. The informer was thus a particeps criminis and an agent provocateur who could not be accorded the protection given to an informer under s 40(1) of the Act or under the normal privilege accorded to such a person under the law. As such, an adverse inference under s 114(g) of the 1950 Act ought to be drawn against the prosecution for its failure to call the informer as a witness; (5) the prosecution's failure to call the informer as a witness rendered the whole of its evidence highly suspicious and at the close of the prosecution case, it fell short of proof beyond reasonable doubt. The presumption of trafficking arising from the possession and knowledge of the drug by the accused was rebutted by the superior probability, which could be legitimately drawn from the adverse inference, that the accused could have been victims of a frame up; (6) the evidence of the possession of the drug by the accused could be accepted because it was independent of the participation of the informer. The accused's custody or control of the bag containing the drug was personal to the accused and was not affected by any design of the informer. The prosecution therefore succeeded in proving a case of possession under s 39A(2) of the Act.

Public Prosecutor v Chong Chee Kin & Anor [1995] 2 MLJ 679 High Court, Ipoh (Kang Hwee Gee JC).

Both accused persons were charged with trafficking in 398.9g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). Inspector Jaafar ('Jaafar') headed a police team which stopped a car driven by the second accused while the first accused was seated at the front passenger seat. The first accused then got out from the car and ran away. Jaafar then arrested the second accused while the first accused was arrested by the other police personnel. Upon searching the car, Jaafar found seven packets containing substance suspected to be heroin which were hidden behind the window panel on the driver's side of the car. Jaafar testified that he had the packets marked and kept in his cabinet until he handed to the investigating officer ('the IO'). The IO made no markings on the exhibits and locked them in his cabinet. The IO then sent the exhibits to the government chemist who analysed and found them to be heroin. After the close of the prosecution case, the trial judge acquitted and discharged the first accused without calling for his defence. The second accused was, however, called upon to enter his defence. The second accused testified that although the car belonged to him, the car had been borrowed by other persons prior to his arrest. The second accused called an expert named Tosesand as a defence witness. Tosesand claimed that the exhibits had not been completely homogenized by the government chemist. Tosesand further alleged that the co-efficient variation used by the government chemist for allowance in the margin of error during the analysis of the exhibits was too low. The second accused therefore contended that the test carried out by the government chemist could not conclusively ascertain the weight of the exhibits. The second accused tendered, inter alia, a newspaper cutting through the chief reporter of that newspaper who kept a record book of all the newspaper cuttings. The newspaper cutting contained a photograph depicting a police officer, Supt Fuad ('Fuad'), giving a press conference regarding the case. The photograph also showed Fuad displaying the seven packets which contained the drugs. The second accused could neither call the reporter who wrote the newspaper article nor the photographer. According to the chief reporter, both the reporter and the photographer could not be traced because their records were misplaced when the newspaper office shifted.

Held, acquitting and discharging both accused persons: (1) the only evidence against the first accused was that he was seen running away from the car. The incriminating exhibits were found hidden on the driver's side of the car. The first accused was not the owner of the car and nor was he in control of it. The presumption under s 37(d) of the Act could not be applied against the first accused in the absence of any evidence to show that he had custody or control of anything containing the drugs. Accordingly, no prima facie case was proved against the first accused; (2) each chemist has to set his own individual personal standards based on data in respect of the homogenization of the exhibits and the margin of error allowed during the analysis of the exhibits. As long as a chemist's standards conform with the basic procedures in carrying out the test, there is nothing to say that in applying his individual standards to the test, an incorrect result will be obtained; (3) there was no evidence in this case that the standards used by the government chemist were proved to be inherently wrong; (4) persons who 'cannot be found' as defined in s 32 of the Evidence Act 1950 ('the 1950 Act') include persons whose names cannot be known as in this case. The statement in the newspaper cutting was made in the ordinary course of business and/or in the discharge of professional duty. Accordingly, the newspaper cutting could be admitted under s 32 of the 1950 Act; (5) a photograph is the photographer's perception of a fact which he saw. Such a perception is more accurate than a verbal description. A photograph therefore falls within the ambit of a 'statement' in s 32 of the 1950 Act; (6) if the photographer could not be found, the photograph in this case was admissible as an exhibit because the prerequisite conditions under s 32 of the 1950 Act had been fulfilled; (7) the IO never mentioned that the exhibits were handed over to Fuad. There were also unexplained markings on each of the seven packets of drugs which were tendered as exhibits in court. Accordingly, there was a break in the chain of evidence in the prosecution case.

Public Prosecutor v Lim Bong Kat & Anor [1992] 4 CLJ 2173 High Court, Johore Bahru (James Foong J).

The accused was sitting on a bench with another person in front of a building when he was arrested by the police. Two packages were found on the accused, The packages contained heroin weighing a total of 24.22 gms. The accused was charged with trafficking in heroin. The defence of the accused was mainly an admission that he possessed only one of the packages and that the other package belonged to the person who was sitting beside him on the bench.

Held: on a balance of probabilities, the accused was trafficking in heroin and was therefore found guilty and convicted accordingly.

Public Prosecutor v Samsul Kamar bin Mohd Zain [1988] 2 MLJ 252 High Court, Kuala Lumpur (KC Vohrah J).

The accused was charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') for the offence of illegal trafficking of dangerous drugs. The accused was introduced by a registered informer ('Jo') to PW4, a police officer, at the informer's house where they talked for about ten minutes and after a few meetings, the accused was alleged to have agreed to supply PW4 with 2kg of drugs to be delivered at the place and time arranged by the accused. On that day, the accused was arrested when he was said to have shown two packages containing drugs to PW4 in a van. The chemist's report ('P16') dictated that the result of the analysis showed that the drugs were from the type 'cannabis' under the Act. The accused submitted mainly on two grounds: that the prosecution failed to call for the evidence of Jo, the informer; and that the prosecution failed to prove that the charge had clearly stipulated whether the subject of the charge, ie the cannabis, was actually 'cannabis' or 'cannabis (Indian hemp)' (the offence for the trafficking of the latter was not provided under s 39B(1)). Both of these grounds, the accused contended, were fatal to the prosecution case. The prosecution submitted that the evidence showed that the informer in this case had only played a minimum role, ie as the person who introduced PW4 to the accused and that the issue of 'cannabis (Indian hemp)' did not arise as P16 clearly showed that the drugs were from the type 'cannabis'.

Held, acquitting the accused without calling for his defence: (1) the informer, Jo, was a registered informer and had played the role of more than just an ordinary informer. Although the term 'informer' was not defined in the Act, in its ordinary meaning, the term means 'one who informs against others'. The informer brought PW4 and introduced him to the accused at the informer's own house. It was unacceptable that during the ten minutes' meeting between PW4 and the accused that the informer was completely silent. Therefore, it was of utmost importance that the informer should be called to give evidence. The failure of the prosecution to call the informer as a witness had created a gap in the prosecution case. On this point alone, the accused ought to be acquitted. Whether an informer had changed his role from an informer to an agent provocateur and thus, discharged his statutory protection under s 40 of the Act depends on the facts of the case. From the facts, it was clear that the informer had stepped out of his role as an informer who would be protected under s 40 and played the role of an agent provocateur instead which subsequently resulted in the arrest of the accused; (2) P16 did not explain accurately the classification of drugs according to the definition provided by the law. Therefore, there was a doubt whether the drugs meant by the chemist who conducted the analysis was 'cannabis' or 'cannabis (Indian hemp)'.

Pendakwa Raya v Ahmad Kamarozaman bin Yaacob PCT No 58-4-92 High Court, Ipoh (Abdul Hamid J).

In this case, the two accused were jointly charged with trafficking in a dangerous drug under s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234). At the end of the prosecution case, the trial court acquitted and discharged the second accused as there was insufficient evidence to call for his defence. The first accused was called upon to make his defence. The chemist examined the contents of the bundle and found it to contain 2.87kg of cannabis. Defence counsel submitted that the weight of the cannabis must be less than 2.87kg because the chemist had weighed the contents of the bundle before separating the stalk, fibre and seed.

Held: (1) any plant of the genus cannabis or any part thereof comes within the definition of cannabis as a dangerous drug together with its stalk, fibre and seed. The chemist was therefore right in weighing the plants she found in the bundle without removing the stalk, fibre and seed; (2) the first accused made no attempt to rebut the presumption against him under s 37(da) of the Dangerous Drugs Act 1952 and he was therefore found guilty and convicted on the charge; (3) the court took into consideration the following mitigating factors: the accused was a first offender, he had a wife and five children to support and the drug found in his possession was less deleterious than morphine or heroin. He was therefore not sentenced to death but to the lesser punishment of life imprisonment plus six strokes of the rotan.

Public Prosecutor v Puteh Nordin & Anor [1983] 2 MLJ 292 High Court, Ipoh (Ajaib Singh J).

[Annotation: The first accused's appeal against conviction and the Public Prosecutor's cross-appeal against the sentence of life imprisonment came up for disposal before the Federal Court in Kuala Lumpur on 15 August 1983 (Federal Court Civil Appeal Nos 13 and 15 of 1983). Both the appeal and the cross-appeal were dismissed. The Federal Court, which was in complete agreement with Ajaib Singh J's interpretation of the new definition of 'cannabis' under s 2 of the Dangerous Drugs Act 1952 (as amended by Act A491 which came into force 30 May 1980), gave no written judgment.]

A was charged with trafficking in 116.608kg of raw opium, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The case for the prosecution was that on the day in question A was seen leaving the house where the raw opium was subsequently recovered. A was arrested after the car in which he was driving was stopped by the police. The police party together with A then proceeded to the said house. On arrival at the house, they met A's wife and a child aged about ten years. The police conducted a search of the house and found the raw opium kept in the kitchen. The police also recovered a telephone bill and an electricity bill in respect of the house, both bills made out in the name of A. At the end of the prosecution's case, counsel for A submitted that no prima facie case had been made out against A. Counsel argued that as the evidence against A was circumstantial, the prosecution had to call in aid the presumptions under s 37(b), (d), (g) and (da) but contended that none of these sub-paragraphs could apply.

Held, acquitting and discharging A: (1) the question to be decided at the close of the prosecution's case was whether there was some evidence, not inherently incredible, which if accepted as accurate, would establish each essential element which had to be established against A was that he was in possession of the raw opium that was recovered in the house and the charge of trafficking against A would only arise if the quantity of raw opium amounted to 100g or more in weight as laid down in s 37(da) enabling trafficking to be presumed once possession had been attributed to A; (2) in the instant case, the facts as established did not afford sufficient ground for the operation of the presumption under s 37(b) of the Act as no evidence was adduced to indicate that it was not A's wife who had the care and management of the house or control of the incriminating items so that either one or the other of them could have been the occupier of the premises. Even if the facts did establish ground for the operation of the presumption against A, the fact that the cardboard boxes containing the slabs or raw opium were not concealed but were open to sight and easily retrievable would prevent the operation of s 37(g) of the Act so that A even as occupier could not be presumed to have had knowledge of the drugs for the presumption under s 37(d) to apply; (3) as no prima facie case had been made out against A, the court accordingly acquitted and discharged him.

Public Prosecutor v Tan Ah Ling [1990] 2 CLJ 83 High Court, Johore Bahru (LC Vohrah J).

The first and second accused were charged with trafficking in dangerous drugs, ie 1,599.74g of heroin, on their own behalf on 23 May 1984 at the 4th mile, Jalan Cheras, Kuala Lumpur, in furtherance of their common intention in contravention of para (a) of sub-s (1) of s 39B of the Dangerous Drugs Act 1952 (Act 234), read with s 34 of the Penal Code. The police, acting on information, laid an ambush at the Taman Midah roundabout and spotted the motor cycle of the two accused proceeding towards the roundabout. On seeing the accused, the police, who were in civilian clothes, tailed them in a car until they were at the 4[1/2] milestone, Jalan Cheras. When the car came abreast of the motor cycle, the police identified themselves and ordered the two accused to stop. The motor cycle did not stop but instead sped up a little bit. Eventually, the police car managed to squeeze the motor cycle to the sidetable, where the pillon-rider, ie the first accused, fell on the sidetable while the rider, ie the second accused, fell into the drain by the side of the road together with his motor cycle. The police arrested the two accused and discovered a package wrapped in a red plastic bag in which were found four brown packages containing 1,599.74g of heroin. The first accused was acquitted because there was no evidence that he was in control of the heroin and hence no inference of common intention could be made. The learned judge amended the charge against the second accused by dropping the element of common intention. He claimed trial to the amended charge and called two witnesses, one of whom was the first accused who had been acquitted at the close of the case for the prosecution. The second accused denied knowledge of the bag of heroin found in the basket attached to his motor cycle. He said the bag was put there by the first accused. The first accused denied knowledge of the contents of the plastic bag and alleged that he was asked by his tenant to pass the bag of 'medicine' to someone in Pudu.

Held, convicting the second accused: (1) having reviewed the totality of the evidence adduced, the learned judge found that no reasonable doubt had been created in the prosecution's case that the second accused, riding his motor cycle, carried in a basket attached to the motor cycle and which was between his legs, a bag holding four packages containing 1,599.74g of heroin, and that he attempted to flee from the police after the police had identified themselves, and that he had control of the heroin; (2) having considered the totality of the evidence adduced, on a balance of probabilities, the second accused was transporting the heroin fully aware of the heroin, for the purpose of distributing the large quantity of high quality heroin. The defence evidence viewed against the prosecution evidence clearly shows that he was involved in the trafficking with a confederate and so far as the second accused is concerned, the charge of trafficking has been made out against him.

Public Prosecutor v Chan Ah Kow & Anor [1988] 3 MLJ 337 High Court, Kuala Lumpur (KC Vohrah J).

Public Prosecutor v Mansor bin Mohd Rashid & Ors Criminal Trial No 58-10-92 High Court, Taiping (Abdul Malik JC).

See CRIMINAL LAW, Vol 4, para 124.

Public Prosecutor v Mansor bin Mohd Rashid & Ors Criminal Trial No 58-10-92 High Court, Taiping (Abdul Malik JC).

See CRIMINAL LAW, Vol 4, para 124.

The accused was charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking in 28.41g of heroin. The accused was apprehended by customs officials at a roadblock and a cursory search was conducted on his person but nothing incriminating was found on him then. He was then taken to the customs office, whereupon he was directed to remove his clothing. The accused complied and, according to the customs officers in charge, voluntarily took out two packages, one from inside his pants and the other from inside his underpants, and placed them on a table. The contents of the two said packages were subsequently analysed by a government chemist and were confirmed to be a dangerous drug, to wit, heroin in the amount of 28.41g.

Held, convicting the accused and passing the mandatory death sentence on him: (1) the defence was basically one of mere denial. In this context, the courts in this country have consistently held that a defence of mere denial cannot dislodge the prosecution's case where the evidence against the accused is solid, strong and beyond all reasonable doubt; (2) there was little evidence to support the accused's contentions that no drugs were found on him either at the roadblock or at the customs office, and that the customs officers in charge were fabricating evidence against him merely to secure convictions in court; (3) the accused had failed to rebut the statutory presumptions under s 37(d) and (da)(i) of the Dangerous Drugs Act 1952.

Public Prosecutor v Tee Hong Fei Perak Criminal Trial No 58-6-93 High Court, Taiping (Abdul Malik Ishak JC).

On 20 November 1983, at about 1.15am, Inspector Bhupinder, accompanied by Corporal Yusoff and hotel caretaker Yu, checked on room 48 (in the Swiss Hotel in Chulia Street, Penang) occupied by three male German tourists, the youngest of whom was the accused, a 21-year-old bank clerk, who was charged with trafficking, on his own behalf, in a dangerous drug, to wit, 239.7g of cannabis resin, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234). On arrival at room 48, Inspector Bhupinder knocked on the door. The light of the room went on and about one or two minutes later, the door of the room was opened apparently by the accused. In the room were three large travelling bags, two of which were checked by Corporal Yusoff and the third bag (which belonged to the accused) was checked by Inspector Bhupinder, who claimed that he recovered a sling bag from the inside of the side zip pocket of the accused's travelling bag. He further claimed that from the sling bag he recovered a pink plastic bag in which were three condoms, each of which contained a black substance later certified by the chemist to be a dangerous drug within the meaning of s 2 of the Act, ie 239.7g of cannabis resin. Inspector Bhupinder said that he also recovered, from the sling bag, a passport and three air tickets, all belonging to the accused. The accused's two companions were not arrested or even interviewed, and were allowed to get away scot-free. The learned judge called upon the accused to enter upon his defence. The accused gave evidence on oath. He said that when Inspector Bhupinder checked his travelling bag, it was covered with a towel. He had no recollection as to who had placed the towel there. Inspector Bhupinder removed the towel and underneath it was the pink plastic bag. The accused said one of his companions said to him in German, 'Shut up. There are some drugs in the plastic bag. But don't worry, we will help you. Do not implicate the two of us in this.' The accused said he believed this. He maintained that although the sling bag belonged to him, the plastic bag did not. He had not seen the plastic bag and its contents and had not known of their existence. He maintained that he had never handled the three condoms. The defence sought to use two affidavits affirmed by the two companions. They were admitted in evidence. The affidavits wholly absolved the accused from all liability as regards the cannabis resin. The deponents affirmed that they alone bought it, smoked it and carried it.

Held: (1) the learned judge accepted the explanation of the accused that he never placed the cannabis resin in his bag and also that he had no knowledge of its existence until it was shown to him by Inspector Bhupinder. The presumptions under s 37(d) and (da) of the Act are therefore rebutted; (2) the learned judge had arrived at this conclusion even without the affidavits; (3) the accused was therefore acquitted and discharged.

Public Prosecutor v Forster Frank Edald Heinrich [1988] 2 MLJ 594 High Court, Penang (Edgar Joseph Jr J).

The accused was charged with trafficking in 414.3g of cannabis, a dangerous drug under s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234). The accused was found carrying a plastic bag containing something brownish and greenish (P9) wrapped up in a transparent plastic tied with a string. The chemist testified that P9 was cannabis and his evidence was accepted by the court.

Held: (1) accepting the evidence of PW4, PW7 and PW8, the accused was in possession of the cannabis P9. The prosecution had made out a prima facie case against the accused which, if unrebutted, would warrant a conviction; (2) the defence that the accused denied knowledge of P9 and that he denied carrying the bag P12 at the time of arrest had not raised a reasonable doubt in the prosecution's case; (3) the accused was accordingly convicted of the offence charged and sentenced to death as required by law.

Public Prosecutor v Janggu bin Awang 2 MLJ 403 High Court, Tawau (Abu Mansor J).

A1-A2 were charged with trafficking in 6,039.99g of heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The prosecution adduced evidence that a police party kept surveillance on a house. Two cars then stopped at the house. One car was driven by A1 while the other by X with A2 sitting beside him. All three of them entered the house and A1 was seen carrying something heavy from his car into the house. The police party raided the house and broke open the front door. Upon the police entering the house, A1 who was walking towards the kitchen ran away but was arrested some distance away from the house. A2 and X were upstairs in the master bedroom and when the police rushed up, both of them rushed to the balcony. X was arrested but A2 jumped out of the window and was finally arrested some distance away from the house. Concealed in the bathroom attached to the master bedroom was a bag containing heroin. X was charged together with A1-A2 but he died in police custody before the trial. The High Court relied on presumptions under s 37(d), (da) and (g) of the Act in calling for the defence of A1-A2. A2 testified that he and X had rented the house to be used as his office. A1 was to rent a room in the house. On the day of their arrest, they were moving into the house. A1-A2 said that they ran away because they were suddenly confronted by an armed police party who were not in uniform and who were rushing at them. A1 further testified that he feared for his safety because of his previous experience of being beaten by thugs which left him disabled for a period of time. A1-A2 also called Y who was X's brother to give evidence that X had earlier instructed him to bring the bag to the house. The prosecution led evidence in rebuttal which showed that A1 had told the police that his disability was caused by a fall in his cell. The High Court convicted A1-A2. The High Court drew on adverse inference against A1 for failing to call witnesses to testify that he had previously been attacked by thugs as a reason for running away from the house. A1-A2 appealed to the Supreme Court. A1 argued that an adverse inference cannot be invoked against an accused person and the failure of the accused to call any witness cannot be made the subject of comment.

Held, allowing the appeals: (1) upon the prosecution adducing rebuttal evidence, the burden was on A1 to prove that he was beaten. When A1 failed to offer such proof, the natural conclusion was that the proof, if produced, instead of rebutting would sustain the charge. Accordingly, an adverse inference could be drawn against A1 when a complete case had been made out against him and the case disclosed that there was evidence which could be produced by him to negate the charge against him. However, in capital offences such as drug trafficking, evidence by inference alone was not sufficient to support a conviction without some proof of element of control; (2) the High Court had mistakenly relied on presumption under s 37(d) of the Act but such a mistake had not caused a miscarriage of justice or failure of justice; (3) there was no evidence that the drugs were taken into the house by A1-A2. It was probable that A1-A2 had no knowledge of the drugs in the bag; (4) on the evidence as a whole, the defence raised by A1-A2 was reasonable and probable, and was sufficient to rebut the presumptions under s 37(da) and (g) of the Act.

Choo Chang Teik & Anor v Public Prosecutor [1991] 3 MLJ 423 Supreme Court, Malaysia (Abdul Hamid Omar LP, Mohamed Yusoff SCJ and Eusoff Chin J).

D was arrested together with his girlfriend, X, in a room in a shop house ('the first room'). A, the police officer who arrested D and X, searched 'the first room' and found ten packets suspected to contain dangerous drugs in a vanity case on top of a cupboard. X's identity card was also found in the vanity case. A also recovered D's passport in the cupboard. On further search of 'the first room', A found a shoe box containing packets suspected to contain drugs. At the time of the arrest of D and X in 'the first room', Y was also arrested in another room ('the second room') in the same shop house. Packets of drugs were also recovered from 'the second room'. D and X were jointly charged with trafficking in 23.71g of mixed heroin and monoacetyl-morphines, an offence punishable under s 39B(2) of the Dangerous Drugs Act 1952 ('the Act'). A testified that he had recovered a total of 61 packets from 'the first room'. The investigating officer, however, said that a total of 76 packets were recovered. The chemist gave evidence that he had received a total of 64 packets for analysis. The door knob to 'the first room' was spoilt and had already been removed when D1 moved into it. The High Court called for D's defence but acquitted X at the close of the prosecution case. D denied that he had exclusive use of 'the first room' and named his friends who had frequented 'the first room' and also 'the second room'. The High Court convicted D and he appealed to the Supreme Court.

Held, allowing the appeal: (1) the cumulative effect of the evidence adduced, showed that D had no exclusive use of 'the first room'. The doubt as to the exclusive use of 'the first room' by D alone could be sufficient ground to allow the appeal; (2) there was no evidence as to the weight of the drugs in the ten packets found in the vanity case. Since the total weight of drugs in this case was 23.71g which was only 8.71g above the statutory limit of s 37(da)(iii) of the Act, the weight of the ten packets in the vanity case was crucial to sustain the charge against D. This was because a reasonable conclusion must be that the vanity case must have belonged to X because her identity card was found in it; (3) there was also a flaw in the prosecution case relating to the drugs from the time they were discovered up to the time they reached the chemist because there were discrepancies in the evidence on the number of packets involved in this case. Where there is a serious doubt as to the identity of the exhibits, as in this case, it cannot be said that the prosecution has established a prima facie case.

Lee Chee Meng v Public Prosecutor [1992] 1 MLJ 322 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

A was charged with trafficking in 353.86g of heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952. A was arrested and he was alleged to have given information to the police which led to the discovery of heroin in his room. A denied any knowledge of the heroin and that he gave any information. In A's cautioned statement, he named two persons sharing the room with him. At A's trial, the information allegedly given by him was admitted as evidence under s 27 of the Evidence Act 1950 ('the 1950 Act'). A elected to give evidence on oath after his defence was called. A testified that there were at least three other persons with access to his room. The High Court convicted A. The trial judge held, inter alia, that once A's defence was called, he must testify and support his contention with evidence both from witnesses or otherwise that he was not guilty of the charge. The trial judge also found as a fact that the room was exclusively occupied by A. An adverse inference against A was drawn by the trial judge when A failed to call a witness whom A alleged had access to his room. A appealed to the Supreme Court.

Held, allowing the appeal: (1) the rationale behind s 27 of the 1950 Act revolves on the basis that if a fact is actually discovered in consequence of information given by the accused in custody, some degree of guarantee is afforded that the information is true and can be allowed to be given in evidence overriding the Criminal Procedure Code (FMS Cap 6) and other written laws. Nevertheless in invoking s 27 of the 1950 Act, the courts should be very vigilant to ensure the credibility of evidence by the police because this provision is so vulnerable to abuse; (2) there were serious contradictions in the evidence of the prosecution witnesses concerning the information which allegedly came from A. The true substance of the information given by A was therefore not clear; (3) A's defence was probable and more than adequate to rebut the prosecution case; (4) whether the accused testifies or adopts other means is a matter of choice for him and his counsel. No adverse inference can be drawn or seen to be drawn only because he exercises his liberty to choose any particular course; (5) the trial judge was manifestly wrong to find as a fact that A had exclusive possession when all the while his stand when he made the cautioned statement had been that there were three others sharing the room. There was also some degree of corroboration of A's contention in the evidence of the police. Accordingly, the prosecution had not proved exclusive custody or control of the drugs found in A's room.

Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137 Supreme Court, Malaysia (Abdul Hamid Omar LP, Mohamed Yusoff SCJ and Eusoff Chin J).

The accused was charged with trafficking in heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2) of the Act. On 18 September 1986, the accused was arrested outside his house, No 29 Jalan Siakap 12, Penang ('the house'). The circumstances of his arrest were as follows. The accused, driving a Datsun Sunny registration No PBG 7171 registered in his wife's name, was tailed by a police officer out of uniform ('PW') on his motor cycle for about 25 minutes until the former pulled up in front of the house, the only stop made during the time. The accused proceeded to open the boot of the car and was lifting a plastic bag, P6, out of the boot when PW approached him, immediately identified himself as a police officer and caught the accused from behind. The accused put up a slight struggle, in the course of which he dropped P6 into the boot. In P6 were three packages wrapped in newspaper containing an aggregate of 187g of heroin. The accused was then taken to the police station in his car. On arrival at the police station, the boot was examined in the accused's presence where, among other items, P6 and P13 were recovered. P13 was a plastic packet containing 414g of heroin. The drug exhibits were then handed over to the investigating officer ('IO') who locked them in a steel cabinet in which no other drug exhibits were kept and who alone had access to the cabinet as he kept the keys to it. The defence sought to impugn the identity of the drug exhibits as they were not marked or initialled in any way for two days after they were seized. The defence further made the assertion that on the day the accused was arrested, a friend of his only known to him as Ah Bok had borrowed the car from him for the vital period from 9am until shortly after mid-day when he headed for home so that during that time he did not have exclusive possession of the car.

Held, convicting the accused: (1) while it is desirable and necessary to have drug exhibits marked and initialled as soon as possible after they are seized, if only to ensure that they are sufficiently identified and not mixed up with exhibits of other cases, non-initialling or non-marking of such exhibits would not by itself be fatal to the prosecution's case. In such cases, the court would have to examine the prevailing circumstances at the time of seizure of the drugs and evidence led as to the manner in which the drug exhibits were kept. In the circumstances, the identity of the drug exhibits had been sufficiently established by the prosecution; (2) although the accused was not the registered owner of the car, it was meant for his own use and was at his disposal at all material times. Thus, the accused had de facto ownership, custody, control and exclusive use at all material times of the car in which P13 was found. Further, he had held in his hand P6 containing the drug exhibits. Accordingly, the prosecution had established a prima facie case against the accused and had raised the presumption under s 37(d) and (da) of the Act in respect of knowledge and possession of the contents and trafficking in heroin; (3) in order to rebut the statutory presumption under s 37(d) and (da) of the Act in respect of the drug exhibits which the accused was found to have held in his hand (ie P6), the test to be applied would be on a balance of probabilities. Whereas, in respect of the circumstantial evidence on P13, it was sufficient for the defence to raise a reasonable doubt as to whether the same belonged to the accused, and the court was not required to be convinced of the truth of the defence's story; (4) the failure of the prosecution to specifically challenge the accused in cross-examination on a fundamental aspect of the case, ie to the effect that he was holding P6 when he was caught from the back by PW, would not be fatal to the prosecution's case as such a challenge in cross-examination was only necessary for the purpose of affording an opportunity to an accused or a witness to explain himself or test his veracity. As counsel for the defence in examination-in-chief had asked a question on the same issue and the accused had answered in the negative, the same reply would have been given had the prosecution directed a specific challenge to the accused; (5) it was most incredible that the essential particulars about Ah Bok, with whom the accused claimed to have gone out with, eaten, gambled, worked together and to whom the accused had often loaned the car, had completely escaped the attention or memory of the accused. The cautioned statement of the accused, which substantially corroborated the testimony of the accused, was taken 26 hours after his arrest, giving the accused ample time and opportunity to frame his reply to the questions asked of him. In the circumstances, the court found that Ah Bok was a fictitious character conjured up by the accused during the long hours of detention between his arrest and the recording of the cautioned statement. Accordingly, the accused had failed to rebut the statutory presumption raised against him.

Public Prosecutor v Tan Ah Huat [1993] 4 CLJ 88 High Court, Penang (Vincent Ng JC).

Acting on information received, Detective Corporal Busra was introduced to the second accused by an informer (Cholar). Subsequently, Busra and the informer met the second accused and the first accused at house No 129 at Taman Kuning Sari, Taiping. At that time, there was another male Malay present. Busra and the two accused then discussed the sale of cannabis. The house was rented by the three accused persons and one Amran. On the third meeting at the same house, the third accused was present. Busra talked to the first accused about the sale of cannabis. The first accused then told the second accused to take the cannabis from a room. The second accused gave a bundle of compressed plant material wrapped in newspaper to Busra. While Busra was about to rewrap the material after inspecting it, the third accused went to the bathroom to take a bath. Busra then activated the police officers who were lying in wait. The three accused were arrested. Upon analysis by the government chemist, the plant material was confirmed to contain 902g of cannabis.

Held, acquitting the three accused at the end of the prosecution's case: (1) there was a patent break in the chain of evidence pertaining to the compressed plant material. There was not a shred of evidence adduced by the prosecution as to how the government chemist handled the compressed plant material in her office. It was doubtful whether the government chemist returned the very same cannabis which had been given to her for analysis. In short, it was doubtful whether the exhibit was the very cannabis seized by the police at house No 129; (2) it must be borne in mind that in 1991 there were nine government chemists working in the Chemistry Department, Ipoh, Perak. That the other government chemists would also be engaged in analysing cannabis from other cases could not be ruled out, and that a possible mix-up of the other cannabis with that of the cannabis in this case could not also be ruled out, particularly when there was no evidence of where the cannabis in this case was kept and whether it was kept under lock and key; (3) there was meticulous evidence led by the prosecution in regard to the movements of the exhibits when they were in the hands of the police. Such requirements should also be placed on the government chemists bearing in mind that there are a lot of exhibits from other cases that are kept by the government chemists for analysis. The cannabis was with the government chemist for 2 months 17 days, before it was returned to the police. Bereft of the evidence from the government chemist as to how she handled the cannabis for that period, it could not be said that that was the very cannabis that was seized from house No 129; (4) notwithstanding the presumptions in the Act, the serious break in the chain of evidence in regard to the cannabis while they were in the hands of the government chemist would entitle the three accused persons to an acquittal without their defence being called at all; (5) the third accused was not present at the first sale and purchase transaction. On the day they were arrested, the third accused did not do anything. He even decided to take his bath while Busra was rewrapping the compressed plant material in the newspaper. The third accused could not be said to be sharing the common intention of the first and second accused. His mere presence cannot raise the presumption of complicity nor should he be punished for it; (6) the third accused also had no care and management of the premises and therefore he was not an occupier for the purposes of the application of the presumptions under s 37(b) and (g) of the Act. On the available evidence, the prosecution would have merely established knowledge of the drugs on the part of the third accused. But knowledge in itself is insufficient to establish possession; (7) the accessibility of house No 129 to Amran raised another problem. Since Amran had access or occupation of the premises, then it could not be said that the three accused persons had exclusive custody and control of the drugs found in the room; (8) from the recital of the facts showing the role of the informer in the present case, it was clear that Cholar not only introduced Busra to the second accused but went further in witnessing the purchase of 1 kati of ganja from the first accused at house No 129 and participated in the trap, leading to the arrest of the three accused persons and the seizure of the drugs. It could therefore be said that the informer by the name of Cholar was an active agent provocateur and was not protected by s 40(1) of the Act and consequently, the failure of the prosecution to call or offer Cholar to the defence would trigger the adverse inference concept under s 114 illustration (g) of the Evidence Act 1950.

Public Prosecutor v Mansor bin Mohd Rashid & Ors Criminal Trial No 58-10-92 High Court, Taiping (Abdul Malik JC).

These were appeals against the conviction of the appellants on a charge of trafficking in a dangerous drug. The principal evidence against the appellants was given by a senior customs officer who stated that he acted on information from informers. It was sought at the trial to introduce evidence of oral statements made to the witness by two informers, neither of whom were called to testify. The defence objected to the evidence on the ground that it contravened the rule against the admission of hearsay evidence and also because it did not fall within any of the recognised exceptions thereto. The learned trial judge ruled that the statements were admissible and convicted the appellants. (See [1985] 1 MLJ 355.) The appellants appealed.

Held: (1) the general rule is that hearsay evidence is not admissible as proof of a fact which has been stated by a third person. In Malaysia certain exceptions have been set out in s 32 of the Evidence Act 1950 (Act 56), but these statutory provisions were not relied in this case; (2) the general proposition laid down by the Privy Council in the case of Subramaniam v Public Prosecutor [1956] MLJ 220 must be read subject to this condition, viz that the statement must be directly relevant in considering the state of mind of the witness to whom it is made. In other words, the proposition could only apply when the mental state of the witness evidenced by the statement was itself directly in issue at the trial; (3) in this case, the prosecution had failed to satisfy this strict test. Since the mental state of both the appellants were not in issue at the trial, the condition had not been satisfied. All the statements allegedly made by the informers to the witness are to be treated as hearsay evidence and therefore inadmissible in law and ought to have been rejected by the learned trial judge; (4) none of the reasons given by the learned judge come within the statutory exception to the hearsay rule contained in s 32 of the Evidence Act 1950 and the res gestae rule does not and cannot apply to the facts of the case; (5) the hearsay evidence of the informers was so interwoven with the testimony of the principal prosecution witness that its misreception had seriously prejudiced the fair trial of the appellants and resulted in a miscarriage of justice. Having regard to the other oral evidence, it would be unsafe to allow the conviction to stand, as there was no satisfactory oral evidence to support the conviction.

Leong Hong Khie v Public Prosecutor; Tan Gong Wai v Public Prosecutor [1986] 2 MLJ 206 Federal Court, Kuala Lumpur (Wan Suleiman, Seah and Hashim Yeop A Sani FJJ).

Ramli bin Kechik v Public Prosecutor [1986] 2 MLJ 33 Supreme Court, Penang (Abdul Hamid CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 33.

D1-D2 were charged with trafficking in 19.48g of heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). A team of police officers, while conducting a crime prevention operation, found D1-D2 seated in front of a car. Upon searching the car, the police found under the floor mat of the driver's seat three packages which allegedly contained heroin. The police also found another plastic packet in the glove compartment which allegedly contained heroin. The prosecution called X, a finance company manager, to testify that D1 bought the car on hire purchase. The prosecution, however, tendered a certified copy of 'Form MV2' which showed that the car was registered in Y's name at the time of the alleged offence. The car was only subsequently registered in D1's name. Y was not called to give evidence. Only one copy of the chemist report was served on both D1-D2 ten clear days before the commencement of the trial. The chemist report was tendered by the prosecution as evidence.

Held, acquitting and discharging D1-D2 without calling for their defence: (1) the packages and the packet found under the floor mat and in the glove compartment respectively were not obvious to the human eye. The prosecution had therefore failed to prove that D1-D2 had control or custody of the exhibits. Accordingly, the presumption under s 37(d) of the Act could not be applied in this case; (2) the mere fact that D1-D2 were in close proximity to the exhibits without any other evidence was insufficient to prove the charge against them; (3) the prosecution had failed to prove that the car belonged to D1 because there was no evidence as to whom and when the car was handed over; (4) the failure to call Y to testify would raise an adverse inference against the prosecution under s 114(g) of the Evidence Act 1950; (5) it is a condition precedent of s 399(1) of the Criminal Procedure Code (FMS Cap 6) ('the Code') for one copy of the chemist report to be served on each accused before the chemist report can be admitted as evidence. In this case, the service of one copy of the chemist report on both D1-D2 did not comply with s 399(1) of the Code. The chemist report must therefore be rejected and without it, there was no evidence to prove that the contents of the packages and the packet was 'heroin'.

Public Prosecutor v Ong Boon Kek & Anor [1991] 3 CLJ 1744 High Court, Kuala Lumpur (Faiza Tamby Chik J).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

In this case, a team of policemen had planned and organized a trap to arrest a drug dealer ('the appellant'). A policeman posed as a heroin buyer, and a meeting with the appellant was arranged through the help of a police informer ('the informer'). According to the prosecution's evidence, negotiations between the appellant and the police for the sale of the heroin, which ended as a concluded deal, was carried out. The appellant was arrested when he was delivering the heroin to the police. The appellant was charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') for drug trafficking. The appellant's defence that he was an innocent carrier of the heroin, was rejected by the trial judge, who convicted and sentenced him to death. The appellant appealed on the ground that there had been a miscarriage of justice, as the prosecution had failed to either call as a witness, or at least make available to the defence for cross-examination, the informer who had assumed the role of an agent provocateur in this case.

Held, allowing the appeal: (1) while the prosecution has a complete discretion as to the choice of witnesses to be called at the trial, it also has the duty to call all necessary witnesses essential to the unfolding of the narrative of the prosecution case to establish proof against the accused beyond all reasonable doubt. At the very least, the prosecutor should make them available for cross-examination by the defence. If the prosecution failed to fulfil this duty, the accused must be acquitted; (2) in the present case, not only that there was a gap in the narrative of the prosecution case without the informer's testimony, but there was also no sugges-tion that his testimony would have been hostile to the prosecution or unreliable. The prosecution had failed in its obligation to call and examine him or at least tender him for cross-examination by the defence, or in default, explain why they were unable or unwilling to call him; (3) the informer in this case had lost the protection from disclosure of identity normally accorded to informers under s 40 of the Act, as his identity was no longer a secret when he assumed the mantle of an agent provocateur by putting the appellant in touch with the police, causing the appellant to be arrested; (4) there was a serious misdirection by way of non-direction which had occasioned a grave miscarriage of justice in the trial court, as although the counsel for the appellant had criticized the prosecution for failing to call the informer, the judge did not direct his attention to this point at all; (5) (obiter) in any event, in this case it would not have sufficed for the prosecution to have merely made the informer available to be called as defence witness, as this would have put the defence at the disadvantage of not having been able to cross-examine him on any point which might support the prosecution case.

Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433 Supreme Court, Kuala Lumpur (Anuar CJ (Malaya).

D was charged with trafficking in 295.41g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). X, a police officer, gave evidence that D was arrested by him at a restaurant while D was holding a bag containing cannabis. X testified that he had acted upon information given to him in arresting D but he had not submitted a claim for a reward to be paid to the informer.

Held, acquitting and discharging D without calling for his defence: (1) in this case, since the informer had not been given any reward, his bona fides and credibility had become suspect. The informer might probably have a purpose to serve and was not entirely disinterested having regard to the common course of natural events and human conduct; (2) although the court has the discretion to permit inquiry and require full disclosure concerning the informer under s 40(3) of the Act, such discretion must be exercised judiciously; (3) since the bona fides and the credibility of the informer had become suspect, the evidence of the prosecution had also become suspect. It was therefore not safe to call for D's defence.

Public Prosecutor v Hashim bin Hamzah Criminal Trial No 47(58)-3-1989 High Court, Kota Bahru (Suleiman Hashim JC).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

The accused was charged under s 39(B)(1)(a) of the Dangerous Drugs Act 1952 ('the Act') for trafficking in heroin. He was arrested with three plastic packets containing a whitish substance, one tucked in his underwear, and the other two strapped to his thighs. The accused's defence, the gist of it being that he had no knowledge that the three plastic packets contained heroin, consisted of the following contentions: (a) that the prosecution witness who gave evidence on the analysis of the substance with which the accused was arrested was not an expert in the analysis of heroin; (b) even if the abovesaid witness was an expert in the analysis of heroin, there was no evidence that he had satisfactorily analysed the said substance, nor had he carried out the necessary tests for the identification of heroin; (c) that the three plastic packets and the substance contained therein which were found on the accused, were vital exhibits which should have been, but were not, marked or sealed by the police, thus rendering their identity doubtful; (d) that fingerprint tests had not been conducted on the abovesaid vital exhibits and that it was only with such tests that the court could properly determine the reliability of the accused's cautioned statement; (e) that s 114(g) of the Evidence Act 1950 ought to be invoked against the prosecution for not calling or offering to the defence, the accused's father, the accused's girlfriend and the accused's friend ('K') whom the accused alleged was the trafficker of the heroin; (f) that the prosecution could not rely on s 37(d) of the Act, and hence, it could not be presumed that the accused had possession and knowledge of the heroin, because the prosecution had failed to prove that the accused had knowledge, and therefore, custody or control of the heroin; (g) even if the abovesaid presumptions of possession and knowledge operated against the accused, the prosecution still failed to establish a prima facie case against the accused, because the defence had rebutted those presumptions against the accused by tendering, through cross-examination of the prosecution's witnesses, the accused's cautioned statement.

Held, finding the accused guilty and convicting him: (1) there was ample evidence that the prosecution witness who gave evidence on his analysis of the said substance which was alleged to be heroin, was an expert on drug analysis, including the analysis of heroin. It was sufficient that, apart from his academic qualifications, the said witness had training, experience in the analysis of dangerous drugs, as well as experience in giving evidence on his analysis of dangerous drugs, and such evidence of his had been accepted by the courts; (2) it was clear that the said expert witness had carried out the necessary tests for the determination of heroin. Where the opinion of a chemist is confined only to the elementary nature and identity of a substance, the court is entitled to accept the opinion of that chemist on its face value unless it is inherently incredible or is contradicted by the evidence of another expert. So long as some credible evidence is given by the chemist to support his opinion, there is no necessity for him to go into the details of what he did in the laboratory step-by-step; (3) the purpose of carrying out a fingerprint test in a criminal investigation is mainly to determine if an accused or any other person had had any physical contact with the article which is the subject matter of the offence. Since it was alleged by the prosecution, and admitted to by the accused in his cautioned statement, that the three plastic packets were found on the accused's body when he was arrested, there was strictly no necessity to conduct any fingerprint tests for the purpose of criminal prosecution against the accused; (4) the court was unwilling to invoke s 114(g) of the Evidence Act 1950 against the prosecution for not calling as witnesses or offering to the defence, the accused's father, girlfriend, or K. Adverse inference, in the context of s 114(g) of the Evidence Act 1950, can only be drawn if there is withholding or suppression of evidence, and not merely on account of failure to obtain evidence. It may only be drawn from the withholding of not just any document but material documents, or for the non-production of not just any witness but important and material witnesses. Both the accused's father and girlfriend were not material and important witnesses to the case, while in regard to K, the prosecution had done all that it reasonably could to locate him; (5) the court disagreed with the defence's interpretation of s 37(d) of the Act. All that was necessary for the prosecution to prove, in order to trigger off the presumptions of possession and knowledge of the heroin, was that the accused had knowledge, and therefore, custody or control of 'anything whatsoever' containing the heroin. This meant that the prosecution need only prove, as it did, that the accused had knowledge, and therefore, custody and control of the three plastic packets which were found on him. It was not necessary for the prosecution to prove that the accused knew that the three plastic packets contained heroin, so long as it was proven that he knew of the three plastic packets. What was necessary to be proved was knowledge of the 'anything whatsoever' (the three plastic packets), and not knowledge of the contents (the heroin) of the 'anything whatsoever'; (6) the court rejected the defence's submission that the prosecution had failed to establish a prima facie case against the accused. In a case where the onus lies on an accused to rebut a statutory presumption, a voluntary out of court statement by the accused (and this would include a cautioned statement) which is wholly exculpatory should not be made the foundation for an order of acquittal, especially at the close of the case for the prosecution, since at that stage, the accused not having given evidence himself, his explanation could not be tested by cross-examination. Such a statement should not be sufficient by itself to discharge the onus lying on the accused. Furthermore, there is no duty cast on the prosecution to actually prove its case beyond a reasonable doubt as to the guilt of the accused at the close of the case for the prosecution. The court was satisfied that the prosecution had made out a case against the accused which, if unrebutted, would warrant a conviction; (7) the defence had failed to rebut, on a balance of probabilities, the presumptions under s 37(d) and (da)(i) of the Act.

Public Prosecutor v Chuah Kok Wah Selangor Criminal Trial No 47-3-90 High Court, Shah Alam (Mohd Hishamudin JC).

The respondent was charged with trafficking in 578.94g of heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The respondent was arrested by the police after he had parked his car. The police recovered a plastic bag containing newspaper packages of heroin at the footwell of the rear nearside passenger seat. A newspaper package containing heroin was also recovered from the glove compartment of the car. The car was registered in the name of Lim Hooi Yong but it actually belonged to one James Goh Liong Sin. During the trial, the prosecution did not call as a witness the police officer who recorded the respondent's cautioned statement but instead, offered him to the defence after the close of the prosecution case. During the cross-examination of the investigating officer, the defence sought to tender as an exhibit the respondent's cautioned statement. The trial judge admitted the respondent's cautioned statement despite objection by the prosecution. The trial judge acquitted and discharged the respondent at the close of the prosecution case. The prosecution appealed to the Supreme Court, firstly, on the ground that since the respondent was the sole occupant of the car, he had custody or control of the packages containing the heroin and there was therefore a case for the respondent to answer under s 37(d) of the Act. The prosecution then relied on circumstantial evidence to prove that the respondent had in his custody or control the packages containing the heroin. The prosecution argued lastly that unless the recording officer was called by the prosecution, the respondent's cautioned statement could in no circumstances be introduced during the prosecution case at the behest of the respondent.

Held, dismissing the appeal: (1) a vehicle in which drugs are carried does not ipso facto fall within the words 'anything whatsoever containing any dangerous drug' and in such a case, the presumption under s 37(d) of the Act does not arise; (2) in this case, the drugs were not found concealed in a specially constructed compartment of the car. Accordingly, the presumption under s 37(h) of the Act could not arise; (3) where the prosecution is relying on circumstantial evidence, the onus upon it is a very heavy one and that evidence must point irresistably to the guilt of the accused. If there are gaps in it, then, that will not be sufficient; (4) there was no evidence in this case from which it could reasonably be inferred that the respondent must have had custody or control of the packages containing the heroin. There was not even proof that the respondent had knowledge of the presence of the packages in the car. The evidence against the respondent amounted to nothing more than grave suspicion and was totally inadequate to attract the presumption under s 37(d) of the Act. On this ground alone, the trial judge was accordingly entitled to acquit and discharge the respondent; (5) the defence is entitled, through cross-examination of prosecution witnesses, to put its case at the earliest possible stage. If a defence is sprung in court for the first time when the accused makes his defence from the witness box or the dock so that the prosecution is taken by surprise, the accused runs the risk of being criticized for having kept his defence up to his sleeve and it being branded as a recent invention; (6) the trial judge was correct to admit the respondent's cautioned statement even though the recording officer had not been called by the prosecution because the statement was that of the respondent who had personal knowledge of the facts stated therein and who had authenticated it by signing it. The position is very different if the prosecution seeks to admit the cautioned statement over the objection of the defence. In such a situation, it is incumbent upon the prosecution during a trial-within-a-trial to prove its admissibility by calling, at the very least, the recording officer and the interpreter, if there is one, to demonstrate beyond reasonable doubt that the statement was made voluntarily and after due administration of the statutory caution; (7) one of the most important exceptions to the hearsay rule in criminal cases is the admissibility of statements by accused persons, whether cautioned or uncautioned.

Public Prosecutor v Lin Lian Chen [1992] 2 MLJ 561 Supreme Court, Malaysia (Abdul Hamid LP, Gunn Chit Tuan and Edgar Joseph Jr SCJJ).

On 22 November 1982, the accused was ambushed by a party of police officers. He was found to be in possession of a bag which contained 409.3g of cannabis. He was accordingly charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) ('the Act') for trafficking in 409.3g of cannabis, an offence punishable under s 39B(2) of the Act.

Held: (1) to establish possession by an accused person of any dangerous drugs or to impute to him possession of the said drugs, it must first be shown that he had knowledge of the drugs which were found to be in his possession; (2) in considering whether an accused person has sufficiently rebutted the presumption of possession of the dangerous drugs which were found to be in his actual physical custody or under his control, it is legitimate for the court to scrutinize the evidence as to what the accused said contemporaneously with the act or omission and also the surrounding circumstances under which the accused acted or failed to act; (3) in the circumstances, the accused had failed to rebut the presumption under s 37(d) of the Act, and as the amount of cannabis in his possession exceeded the limit prescribed in s 37(da) of the Act, the presumption under s 37(da) is also applicable against him and he likewise failed to rebut that presumption; (4) after taking into consideration the facts that the cannabis involved was comparatively small and that cannabis is a less deleterious drug than opium, morphine and heroin, the proper sentence should be life imprisonment. However, as a deterrent factor and in the public interest, the court must impose six strokes of whipping. The sentence of life imprisonment would run from the date of arrest.

Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 High Court, Alor Setar (Lim Beng Choon J).

In this case, the accused was charged with trafficking in dangerous drugs weighing a total of 15.87g. The accused was arrested in a police ambush. He led the police team to a house where he stayed with his brother Idris. He showed the police a room in which there was a cupboard. The cupboard door was unlocked and inside the cupboard there was a briefcase. The keys that were used to unlock the doors of the room and the cupboard were found on the accused when he was arrested. Inside the briefcase, the police found two black-coloured receptacles and a white tissue paper in which there were seven plastic packets. The two receptacles and the seven packets contained the drugs. The accused stated in his defence that he and his brother Idris were both drug addicts. He stated that both of them had access to the room and cupboard. He also stated that the seven packets belonged to Idris and not him. He admitted, however, to the possession of the two receptacles.

Held: (1) all in all the defence story that there was such an arrangement is not implausible, and the assertion of the accused that the seven packets of heroin in his briefcase were Idris and Idris' admission that they were his, coupled with the evidence of their father that Idris admitted to him that the seven packets were his, could probably be true. The defence had succeeded in raising a reasonable doubt in the prosecution's case from which an inference from the primary facts had been drawn that the accused was in possession of all the drugs in the briefcase; (2) the accused was, however, guilty of possessing the two receptacles containing 7.82g of heroin and he was therefore convicted for that possession.

Public Prosecutor v Abdul Kudus bin Japlus [1988] 2 MLJ 310 High Court, Kuala Lumpur (KC Vohrah J).

The accused was charged with trafficking in 3,720.1g of raw opium in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952. The accused was spotted wearing a helmet and riding a motor cycle No KJ 4282 by a party of customs officers. One of the officers saw a black bag on the carrier between the accused's legs. It was clearly visible. When the accused was stopped and searched, the officers found a black plastic bag on the carrier of the said motor cycle. The bag was examined and it was found to contain two packages of black sticky substance. Upon analysis, the said substance was certified to be 3,720.1g of raw opium.

Held, acquitting and discharging the accused: (1) there was no evidence that the accused was doing any of the acts which constituted 'trafficking' as defined although the accused was seen carrying the black plastic bag which was distinct from carrying a dangerous drug, namely, raw opium contained in the plastic bag; (2) the accused was not found in possession of the dangerous drugs in the sense that he knew of the drug or was conscious of his possession or had knowledge that the drug was raw opium; (3) there was also no evidence from which a reasonable inference could be drawn that the accused knew of the drug contained in the plastic bag either from his conduct or from his statement.

Pendakwa Raya v Chia Ah Yu Criminal Case No 47-4-90 High Court, Alor Setar (Mohd Noor JC).

Public Prosecutor v Mansor bin Mohd Rashid & Ors Criminal Trial No 58-10-92 High Court, Taiping (Abdul Malik JC).

See CRIMINAL LAW, Vol 4, para 208.

Pendakwa Raya v Kunasagarn a/l P Muthu & Anor Criminal Trial No 45-9-93 High Court, Johor Bahru (Mohd Ghazali JC).

See criminal law, Vol 4, para.

The accused was charged with trafficking in 697.41g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). It was the prosecution's case that on 6 October 1986, the accused was observed by members of an ambush party as wearing a white T-shirt similar to the one described by the informer and carrying a briefcase. He was walking on a catwalk. When approached, the accused threw the briefcase away and ran but was captured. When the briefcase was examined, it was found to contain 13 packs of dried vegetable matter weighing 830g. When examined and analysed by the chemist, it was found to be cannabis within the meaning of the Act. In his defence, the accused claimed that he was an illegal immigrant. He had applied for a one-year 'pass' and obtained the same. On 6 October 1986, the 'pass' was no longer valid. That day, after taking his lunch at home, he went to the bus stop to catch a bus to town where he worked as a cobbler. However, he had no money with him as he had given his last RM5 to his cousin the night before. At the bus stop, he met his friend who asked him to wait there while he went back to get money for bus fares for both of them. It was then he heard someone shout 'Tangkap pas' and ran as his pass was invalid. He was arrested when he stopped to put on a shoe which had come off. He claimed that it was only at the police station that he saw the briefcase and the 13 packets for the first time. He denied having been on the catwalk and carrying the briefcase but admitted to wearing the white T-shirt. The issues before the court were whether the offence was made out and if so, what the age of the accused was to determine the sentence that could be passed. The accused testified that he was born in 1964 and this was told to him by his mother. The prosecution argued that the entry of the accused's statement in the Rekod Banduan was relevant within the meaning of s 35 of the Evidence Act 1950 and therefore admissible to prove the accused's age.

Held, finding the accused guilty and making order that the accused be detained during the pleasure of the Yang di-Pertuan Agong: (1) the evidence of the prosecution witnesses that they saw the accused carrying the briefcase containing cannabis which he threw away when confronted by the police was accepted as the truth. One reason for rejecting the accused's contention was that his claim that he was not at the catwalk but at a bus stop to catch a bus was inherently improbable as he very well knew that he had no money. Equally inherently improbable was his allegation that his friend was also at the bus stop to catch a bus and who also had no money for the bus fare. Besides, the accused had said that he did not understand Bahasa Malaysia so he could not have understood what 'Tangkap pas' meant and so ran away. It was also incredible that the accused, supposedly at the time running for his dear life, would stop to put on his shoe; (2) the accused had not succeeded in rebutting the presumptions of possession, knowledge and trafficking. The fact that the accused threw the briefcase away when confronted by the policeman indicated that he was trying to rid himself of something he knew was going to incriminate him. This, considered with the fact that he tried to run away, showed that the accused knew what was inside the briefcase even if he did not own it. It also did not cast doubt on the fact that the accused was seen carrying the briefcase and thus had custody and control which gave rise to the presumption of possession which was also not rebutted. No evidence was offered to challenge the finding by the chemist that there was more than 200g of cannabis. The presumption of trafficking was therefore also not rebutted; (3) with regard to the accused's age, even if the entry in the Rekod Banduan could be admitted under s 35 of the Evidence Act 1950, the prosecution still has to prove the truth of the entry as this entry was a result of an answer given by the accused and therefore hearsay evidence of the accused's age. The accused also could not be estopped by his statement from disputing his age as principles of estoppel have no place in criminal law. There was also no evidence adduced as to the accused's age as the statement the accused made to the inspector of his age was made after his arrest and without the statutory caution. The statement of age in a charge sheet and probation report was also not evidence as this was also hearsay. A person's age can be determined with a reasonable degree of certainty by physical and radiological inspection as was done in Public Prosecutor v Nur Hassan bin Salip Hashim. This was not done here although there was no birth certificate to prove the accused's age. A doubt therefore existed as to the accused's true age as, looking at him, it could not be said that he could not be below 18 years old at the time of the commission of the offence.

Public Prosecutor v Salih bin Abdul Raji Criminal Trial No 18 of 1987 High Court, Tawau (Ian Chin JC).

Public Prosecutor v Tan Ah Huat [1993] 4 CLJ 88 High Court, Penang (Vincent Ng JC).

See CRIMINAL LAW, Vol 4, para 123.

The accused was charged with trafficking in 15,316.6g of raw opium, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable with death under s 39B(2) of the Act. The prosecution's case was that on 12 February 1989 at 9pm, the accused was observed by a member of a party of customs officers waiting in ambush alighting from a bus at a bus-stop at Kangar and thereafter walk up to a taxi stand carrying a red plastic tin. The accused took a taxi, tailed by the party of customs officers. Evidence from the taxi driver revealed that the taxi was hired to take the accused to Kubang Pasu and that the accused brought with him an oil tin which he placed in the taxi between his legs; he had refused to put the tin in the boot as he was afraid the oil might spill. The accused told the taxi driver that the tin contained diesel oil to fuel a tractor used to plow a tobacco field. On arrival at Kubang Pasu, the accused alighted from the taxi carrying the oil tin and at that moment, several customs officers ambushed and arrested the accused. The oil tin was seized and on examination was found to contain several plastic packages. The tin, having been noticed to bear marks at its base showing that it had been cut and put together again, was cut open. Its contents were found to be ten plastic packages, each containing a black sticky substance which on analysis was confirmed by the chemist to be raw opium as defined under the Act. The raw opium was weighed at 15,316.6g. In his defence, the accused denied that the tin containing the raw opium was his. He insisted that the tin he had with him was filled with diesel oil. He claimed that at 8pm on the night in question, he had bought a five-gallon tin of diesel oil at Kuala Perlis and had brought it by bus to Kangar. The accused said that he had left the tin outside a stall while he had a drink and a cigarette. Further, at the time when he was ambushed by the customs officers, he had seen another tin 25ft in front of the taxi. The customs officer had taken the other tin and brought it together with the tin belonging to the accused in a car. The accused denied that he possessed the drugs or knew that it was raw opium and claimed that he brought the tin of diesel oil for his brother.

Held, convicting the accused and sentencing him to death: (1) it is clear from the statutory presumption under s 37 of the Act that the prosecution need only prove that the accused had in his custody or under his control anything containing dangerous drugs. Possession of the drugs and knowledge of the nature of the drugs need not be proven. Possession is presumed and arises from custody or control of anything containing the drugs. However, there is no presumption of custody or control; (2) there was no evidence whatsoever, whether from the conduct of the accused or what he had said, showing that the accused actually knew that the oil tin contained dangerous drugs or that the drugs were raw opium. What was evident and was proven beyond any reasonable doubt was that the oil tin containing the dangerous drugs was in the custody and under the control of the accused. The accused had brought it down from the bus, he placed it between his legs in the taxi, he brought it down from the taxi and he wanted to take the tin to his brother. Following the fact that the tin was in the custody or under the control of the accused, the accused was presumed to possess the dangerous drugs and to know its nature to be raw opium; (3) the weight and the feel of it, on lifting and carrying the tin differs. In the circumstances, the accused knew of the actual contents of the tin and that it did not contain diesel oil. Thus, he was presumed to possess the dangerous drugs and to know its nature; (4) the court rejected the insinuation of the accused that there had been another tin not far from where the accused had been arrested which the customs officers had taken. The prosecution's witnesses all denied in evidence the existence of any other tin at the scene. The customs officer who examined the tin and the investigating officer made no mention of another tin nor had they been cross-examined on the fact. On the whole, it was not reasonable that at 9.45pm on the night in question, there had been another tin containing raw opium that was left unattended by the roadside and that the said tin was switched with the tin belonging to the accused. The court believed the evidence of the taxi driver that as soon as the accused alighted from the taxi with the tin and had paid the taxi fare, the customs officers ambushed and seized the tin from him which on examination was found not to contain oil; (5) the court also considered the probability that the tin was switched while it was left outside the stall but found it improbable as there was no similar tin placed together with it. It was also not the case for the defence that the accused had been framed; (6) the presumption was rebuttable by proving on a balance of probabilities that the accused did not know the tin contained dangerous drugs although it had been proven that the tin was in his custody or under his control. However, the accused's statement to the taxi driver that the tin contained diesel oil and his refusal to place it in the boot of the taxi because he feared it might spill was insufficient to rebut the presumption as the accused could surely have distinguished a tin filled with liquid-like diesel oil from a tin filled with a substance like raw opium due to their respective nature;the accused had deliberately lied to the taxi driver when he claimed the tin was filled with diesel oil so that it was not suspicious for him to grip the tin with his legs in the taxi. The accused had thus failed to rebut the presumption of possession of the drugs in the tin and knowledge of its nature being raw opium.

Pendakwa Raya v Mustafa bin Salleh Criminal Case No 47-14-89 High Court, Alor Setar (Mohd Noor JC).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

The accused was charged with trafficking in 5,121.2g of cannabis in contravention of the Dangerous Drugs Act 1952 s 39B(1)(a). The prosecution led evidence to show that the substance was seized from a radio speaker box in a room occupied by the accused at the time of the raid. At the time of the raid, about 13 people were in occupation of the premises of which the room was a part. The prosecution attempted to tender, in evidence, a cautioned statement of the accused. This was objected to by the defence counsel. A voir dire was therefore held.

Held, acquitting the accused without calling for his defence: (1) where the voluntariness of an alleged confession is in issue, it is up to the prosecution during a trial-within-a-trial to prove beyond reasonable doubt that it was voluntary and, in the case of a statement made by a person after his arrest, that the caution was administered to him in words provided in the relevant statute (or words to the like effect) and explained to him, so that he would be aware of the implication of making such a statement. The court took note of the fact that the cautioned statement included words like '2330h' which no layman like the accused could have used, and of the evidence of the accused, which the court believed, to the effect that the accused was not explained the implications of a cautioned statement, that his family had been threatened, that the statement was more the result of a cross-examination than a voluntary narration of facts, and that he was not given a chance to amend the statement after it was read to him. In the circumstances, the prosecution had not discharged the burden, so the cautioned statement could not be admitted; (2) the prosecution had also not shown that the accused had sole access to the speaker box in which the cannabis was found. Knowledge of the existence of the illegal substance in itself was not enough to amount to possession. As such, the presumption of possession, let alone trafficking, could not be raised against him.

Public Prosecutor v Izhar bin Zainol Criminal Suit No 47-9-90 High Court, Penang (Yaacob Ismail JC).

The accused was charged with trafficking in heroin, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2) of the Act. Evidence was led by the prosecution that on 6 February 1987 at about 9.30pm, the accused was stopped by a plainclothes policeman just before he was to board a ferry at Pengkalan Raja Tun Uda. At the time, the accused was carrying a red travelling bag ('the bag'). The plainclothes policeman immediately took possession of the bag and was taking the accused to the police post, accompanied by another policeman, when the accused took to his heels and ran but did not succeed in evading capture. A body search of the accused did not bring forth anything incriminating but in the bag was found, among other things, two plastic packets wrapped in Chinese newspaper rolled up in a large bathing towel. The two packets contained a orange-coloured granular substance analysed by the government chemist to contain 122.6g of heroin. At the close of the prosecution's case, defence counsel submitted that there was no case to answer relying on an exculpatory cautioned statement of the accused that the bag and its contents belonged to another, who with the co-operation of the accused was arrested and charged together with the accused. That other person had since been released from prison and was at large. The other issue raised by the defence concerned the break in the chain of handling of the drug exhibits which had not been marked in any manner by any of the prosecution witnesses: the two packets of drugs in a brown envelope were only handed by the arresting officer over to the investigating officer ('the IO') at 11.35pm on the day of arrest and was not sealed by the IO until 2pm on 11 February 1987, although the IO had kept it locked in his cabinet. During the time when the envelope remained unsealed, the IO had on 8 February taken the drug exhibits out to be photographed in his presence but there was no evidence to show whether the exhibits were immediately after returned to the cabinet and locked away. The other material break in the chain of handling the drug exhibits was the period when they were kept in the store pending trial: the keys to the store had been left in an unlocked drawer by the previous storekeeper until the new storekeeper took over.

Held, acquitting and discharging the accused: (1) the prosecution had successfully raised the presumptions under s 37(d) and (da) at the close of its case. Once the statutory presumption had arisen, it was untenable that a cautioned statement, however exculpatory, could, without other cogent evidence, found sufficient basis to discharge the onus placed on the accused to affirmatively discharge the presumption; (2) although the drug exhibits had been kept in the store in a very cavalier manner, thus permitting access to persons other than the storekeeper on duty, yet at this stage of handling the exhibits were sealed with the seal of the Chemistry Department and by the court's own observation, at least three of the four seals were still virtually intact. The court was satisfied that the exhibits had not been tampered with during this material period; (3) the non-sealing or non-marking of the drug exhibits is by itself not fatal to the prosecution's case, if the court is satisfied that at every stage of the handling of the exhibits, they were accounted for and securely kept. However, in a capital case such as the present, it was unsafe to allow the identity of the drug exhibits to be established through a process of linkage or by close association or juxtaposition. It was further not permissible for the court to presume that the IO had replaced the exhibits back into his cabinet and locked them soon or immediately after the photography session: such presumptions were no substitute for clear, direct and positive evidence of its safe custody, a fortiori in a capital charge; (4) accordingly, there was a serious gap in the chain of handling of the drug exhibits produced in court, in which event, the prosecution had failed to establish a prima facie case against the accused which, if unrebutted, would warrant his conviction.

Public Prosecutor v Saw Kok Leong [1993] 4 CLJ 83 High Court, Penang (Vincent Ng JC).

The accused was caught in a police station ambush on 30 November 1981 at about 9.45pm. He was a pillion rider on a motor cycle. He was seen hugging a white bundle with his right hand, at the same time resting it on his right thigh. There was also another motor scooterist with him who made good his escape. The police fired three warning shots, one of which hit the accused in the head. The motor cyclist in his haste to get away lost control of his machine, causing the pillon rider to be dislodged and fall to the ground, unconscious and bleeding from his head. The motor cyclist, too, made good his escape. The accused who was caught had 6.044kgs of cannabis, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) ('the Act').

Held: (1) the court was satisfied on the evidence taken as a whole that the prosecution had proved the charge against the accused beyond all reasonable doubt. The presumption under s 37(da) of the Act having arisen and there being no rebuttal of the same, the accused should be found guilty as charged and convicted; (2) on the evidence and the circumstances of the case taken as a whole, the court was satisfied that the accused was deliberately and unjustifiably shot at in the head by Inspector Mahadi. But for timely surgical attention the accused may well have succumbed to his injuries. The culpability on the part of Inspector Mahadi was a factor to be taken into consideration in assessing sentence. The accused would therefore be sentenced to life imprisonment and only six strokes of the rotan as opposed to the maximum of 24.

Public Prosecutor v Mohamed Ismail [1984] 1 MLJ 134 High Court, Penang (Edgar Joseph Jr J).

The accused pleaded guilty to a charge of drug trafficking under the Dangerous Drugs Act 1952 (Act 234). As the offence was committed on 12 August 1982, ie before April 1983, the law gave the court a discretion to sentence the accused to death or imprisonment for life and whipping. On sentencing the accused to death by hanging, the court elaborated on the applicable sentencing principles.

Held: (1) other than in the most exceptional circumstances, a sentence of death should be imposed to show the gravity of the offence and public disapproval, to punish the offender and most of all to protect the public; (2) the extent to which a plea of guilty is a mitigating factor must depend on the facts of each case, and it cannot be a powerful mitigating factor when effectively no defence to the charge was available to the accused. In the present case, there would be no effective defence to the charge had the accused not pleaded guilty, and all the factors taken together could not constitute the most exceptional circumstances.

Public Prosecutor v Low Kok Wai [1988] 3 MLJ 123 High Court, Penang (Mohamed Dzaiddin J).

Pendakwa Raya lwn Abd Talib bin Ghani Criminal Suit No 47-4-90 High Court, Kota Bahru (Arifin bin Zakaria JC).

See CRIMINAL LAW, Vol 4, para 70.

The accused was charged with trafficking on his own behalf a dangerous drug, ie 383g of heroin, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234). On 19 May 1983, Probationary Inspector Yeow (PW1) led six detectives to house No 23, Jalan Pasir Pelangi, Johore Bahru, where he found, among other things, two briefcases (P8A amd P8B) which the accused said were his. The accused opened P8A where Yeow found, among other things, cash of RM15,300. The accused refused to open P8B, which Yeow prised open with a test-pen. In P8B Yeow discovered, among other things, three packets (P37A, P37B, and P37C), a small daching (P38), a plastic spoon (P33A), a metal spoon (P33B), plastic packets (P36) and two pieces of newspaper (P35). The accused then offered Yeow RM50,000 to drop the matter. Yeow rejected the offer. The accused was then arrested. The three packets were found by the government chemist to contain 383g of heroin. At the close of the prosecution case, counsel for the accused contended that all statements uttered by the accused surrounding the examination of the contents of the two briefcases were not admissible under s 37A(1)(b) of the Act because no caution had been administered prior to the making of the statements, and they should therefore be expunged from the record. The learned judge held that the statements were made before arrest and were therefore admissible. He called upon the accused to make his defence. The accused gave evidence on oath and his was the only evidence for the defence. In a nutshell, it was a denial of the admission he made regarding ownership of the incriminating briefcase P8B and of the knowledge of the contents therein.

Held: (1) in the light of all the evidence in this case, the defence did not raise any doubt in the prosecution case. The learned trial judge did not believe the accused's story. On the contrary, PW1, PW4 and PW6 were truthful witnesses and the defence went to strengthen the prosecution case; (2) the accused was found guilty as charged, convicted and sentenced to death.

Public Prosecutor v Lim Kin Ann [1988] 1 MLJ 401 High Court, Johore Bahru (LC Vohrah J).

The accused was tried for trafficking in 45.45g of heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952. The alleged facts were that SP3 had acted as agent provocateur in the operation to trap and arrest the accused. After SP3 had met with the accused and discussed the supply of the heroin and its price, SP3 was given the pager number of the accused so that he could be contacted and messages were relayed to the accused by SP3 via this method. It was eventually agreed that the accused would supply SP3 with heroin to be delivered at Taman Silibin in Ipoh. An ambush team was prepared and the accused was arrested while trying to supply SP3 with the heroin. The defence raised several points in its submission of no case to answer, inter alia, that: (a) the failure of the prosecution to produce the report made by SP4, the officer who led the ambush party, would attract the application of s 114(g) of the Evidence Act 1950 as without the report the accused had been prejudiced; (b) the analysis conducted by the chemist as to the heroin and its weight was inadequate and insufficient in that at least 10% of the drugs should have been used as a sample for the analysis but the chemist did not state the amount actually used in her tests; (c) the investigations were shoddily conducted, in particular, no fingerprint tests were conducted on the exhibits and this could lead one to conclude that the accused had not touched the exhibits; (d) SP3's testimony was made entirely from memory and it was humanly impossible for him to remember the details. Since SP3 had not recorded the events in his notebook, the court had been deprived of the best evidence that a contemporaneous note would have provided; (e) there was a break in the chain of evidence as a result of mishandling of the vital exhibits, namely, the plastic bags containing the heroin, the plastic bag containing the exhibits and the Chinese newspaper cuttings used as wrappers as these exhibits had not been marked as required by law. The judge held on these points that: (i) the report was an arrest report and not a first information report and need not be tendered in evidence. In any event during the cross-examination of SP4, the defence had been allowed to peruse the report but did not raise anything from it and as such it could be concluded that there was nothing in the said report that was prejudicial to the accused. There was also no suggestion that the prosecution was withholding any evidence. Furthermore the disputed report was no longer a material document given the circumstances under which it was lodged. Therefore no adverse inference could be raised from its non-production; (ii) the cases forwarded where it was advised that at least 10% of the drugs were to be used for analysis did not help the accused as those were decisions where the very nature of the drugs in relation to the charges involved had to be determined. Here there was no dispute that the contents of exhibit P6 contained heroin. The Chemistry Department's advice that at least 10% of the drugs should have been analysed remained mere advice and there was nothing in the evidence of the chemist to suggest that her test and findings were in any way inadequate or infirmed and the contents of exhibit P6 and its weight had been proven beyond a reasonable doubt; (iii) there was direct evidence that the accused had been seen carrying and was in fact arrested while still in possession of the exhibits and these were positively identified in court as those found on the accused. The Investigation Officer also testified that he had attempted fingerprint tracings on the said exhibits and found none. There was, however, ample evidence to show that the accused had handled the exhibits and evidence of fingerprint impressions would be superfluous; (iv) SP3 testified that the accused was seen and shortly later apprehended carrying the offending exhibits. This took place only some ten months before the evidence was given in court. It would surely not be impossible for the witness to remember the events of that evenin g and especially so in his extraordinary role as an agent provocateur. The demeanour of the witness did not indicate any lapse of memory and in fact there was an investigation diary kept by the witness on the related events but no attempt was made by the defence to have it produced for the purpose of impeaching his credit; (v) there was no compulsion in law to mark the exhibits. Such markings as a matter of practice were necessary for their later identification. On the facts there was no flaw in the safekeeping and marking of the exhibits. Evidence was given in detail on how the exhibits were inspected and marked in the presence of the accused and the witnesses confirmed in court that the exhibits tendered were the very same ones seized. Further testimony showed that meticulous care had been taken to ensure that the exhibits had been in safe custody. There was nothing to suggest that there was any break in the chain of evidence. When the defence was called the accused made an unsworn statement from the dock that it was one Yong Kim Wong ('Ah Kit') who was responsible for the sale and purchase of the drugs and that he merely provided transport for Ah Kit, and on the night in question, all he did was pass a plastic bag to SP3 at the request of Ah Kit when he was arrested. Evidence was also produced to show that the said Yong Kim Wong (ie Ah Kit) was now in the custody of the police and was awaiting trial for drug possession. Further, the pager in question was shown to belong to one Cheong Kok Weng, who was said to be a friend of Ah Kit.

Held, convicting the accused: (1) having considered the evidence of the defence there was no doubt that the said Yong Kim Wong existed but the officer who had arrested him was not called to give evidence and even if he did he would not have thrown any further light on Ah Kit's involvement with the accused in respect of this charge; (2) although Yong had also been detained in relation to the present case, there was no proof of his involvement in this case. Proof of the ownership of the pager by Cheong Kok Weng did not rebut that part of the prosecution's case that SP3 had contacted the accused directly via the said pager and that their meetings were the result of messages communicated through the pager. That the pager belonged to someone else did not support the accused's statement that he could not have been possibly contacted through it; (3) the accused's explanation that his role was an innocuous one, that he was merely an innocent party being made use of by Ah Kit was rejected.

Public Prosecutor v Yee Kin Woh Perak Criminal Case No 83-46-94 High Court, Ipoh (Abdul Hamid Embong JC).

The appellant and his wife were jointly charged with the offence of trafficking in dangerous drugs, namely 542.6g of cannabis, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The wife was acquitted and discharged, but the appellant was convicted and sentenced to death. Acting on a tip-off, a police party had gone to an unnumbered dwelling house at Jalan Masjid, Gua Musang ('the house') on 2 January 1986 at about 1pm. The appellant was in front of the house when the police arrived. Another male Malay was seen sitting in the lounge whilst four or five children were in the kitchen. A search of the house did not reveal anything incriminating. However, on the police's instructions, the wife opened a wooden box on a shelf. A yellow plastic bag inside the box was opened in the wife's presence. It was found to contain dried leaves suspected to be cannabis. The appellant on hearing of the discovery immediately took to his heels but was arrested. In total, 159 sticks of dried leaves were discovered, all of which were certified to be cannabis within the meaning of s 2 of the Act. It was proved and freely admitted that the house belonged to the appellant and his wife, and that they lived there. Further, it was admitted that the appellant was a carpenter and that certain carpenter's tools found in the box were his personal property. The learned judge rejected the appellant's version that he did not run from the house. The judge found that he did run and that he did so only after the police had announced the discovery of the drugs. The appellant appealed against his conviction.

Held, allowing the appeal: (1) the learned judge was of the view that though the house was still under construction, there was no evidence to show that there had been access to the house through the uncompleted part. Given the fact that this was a case where the police were acting on a tip-off by an informer who might have been a paid informer and the further fact that the house was still under construction, the onus was not on the defence to prove possibility of access by others but on the prosecution to exclude such possibility; (2) there was also evidence that the other Malay who was present at the house on the day of the search stayed with the appellant, viz he had liberal access to the house. He was therefore a possible suspect; (3) there was more substance in the point (not raised by counsel nor considered by the judge) that the appellant's wife might have concealed the drugs in the box without the appellant being a party to such act even though he might have known about it; (4) the judge did not give any reasons why he acquitted the wife at the close of the case for the defence even though it was the conduct of the wife which led to the discovery of the drugs; (5) another distinct possibility, not considered by the judge, was that the informer who had given the tip-off might have planted the drugs in the box. This was not a fanciful possibility, bearing in mind that the house was still under construction and unfenced at the material time, and both the appellant and his wife were engaged in a trade which took them out of doors; (6) as for the fact that the appellant's old and unused tools were discovered in the box, this might be precisely why, if it was a case of a plant, that the person who did so chose the box in order to implicate the appellant; (7) the appellant's conduct in running upon the police inspector announcing the discovery of the drugs in the box could indicate a sense of guilt. On the other hand, it was conduct equally consistent with the appellant having been in a state of pure panic, bearing in mind that it was only after the discovery was announced that he ran. An innocent man faced with the prospect of arrest on a capital charge might foolishly react in that way; (8) although there were several strands of evidence pointing to the appellant's guilt, there was insufficient evidence to support a verdict of guilty; (9) the appellant is to be acquitted and discharged.

Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 3 MLJ 1 Supreme Court, Malaysia (Jemuri Serjan CJ (Borneo).

The accused was prosecuted on four amended charges of trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the DDA'). The principal issues before the court concerned: (a) the admissibility of the accused's cautioned statement, which the defence contended was obtained as a result of threats and psychological oppression; and (b) the evaluation of the evidence at the close of the prosecution's case, with a view to determining whether the prosecution had established the charges against the accused beyond all reasonable doubt.

Held, finding the accused guilty on all four charges and passing the mandatory death sentence on her: (1) a cautioned statement will only be admissible under s 37A(1) of the DDA if it was obtained voluntarily and not through fear or prejudice or hope of advantage exercised or held out by a person in authority; (2) the onus is not on the accused to show involuntariness but on the prosecution to prove beyond any reasonable doubt that the confession was made voluntarily; (3) the accused need only raise, on a balance of probabilities, some doubt as to the voluntariness of his cautioned statement in order to exclude its admission; (4) the court has to be satisfied that the accused understood the language, nature and consequences of the caution administered; (5) the prosecution has to show that the accused was completely free from any form of restraint whilst making the cautioned statement. Restraints include psychological restraints and psychological oppression; (6) the test to be applied as to whether the cautioned statement was voluntarily made is a subjective test involving the surrounding circumstances and their effect on the accused's state of mind; (7) oppression has been interpreted to mean 'something which tends to sap and has sapped that free will which must exist before a confession is voluntary'. The term oppression must be given its ordinary dictionary meaning; (8) in the instant case, the cautioned statement given by the accused was inadmissible as the prosecution had failed to establish beyond a reasonable doubt that it was voluntarily given; (9) the duty of the court at the close of the case for the prosecution is to undertake a maximum evaluation of the evidence tendered by the prosecution in order to determine whether it has established the charge against the accused beyond all reasonable doubt, if unrebutted; (10) the recent decision of the Supreme Court in Khoo Hi Chiang v Public Prosecutor [1994] 1 MLJ 265 calls for a maximum evaluation of the prosecution's case by asking the following hypothetical question: whether, should the defence remain silent, the strength and probative value of the prosecution's case is such that the charge will be proven beyond reasonable doubt; (11) the position now is that if the court is satisfied, upon a maximum evaluation, that a prima facie case has been established, and calls the accused to enter upon his defence, then the court must necessarily convict the accused should he choose to remain silent and calls no evidence. This is because the hypothetical position that the prosecution's evidence would not and could not be rebutted will become a reality when the accused elects to remain silent; (12) it now appears that if the court is, at the close of the case for the prosecution, satisfied that a prima facie case has been made out, then it ought to go further and state its reasons and rationale for holding that the prosecution has established its case beyond a reasonable doubt, which if unrebutted, would warrant a conviction; (13) in the instant case, the prosecution had succeeded not only in adducing sufficient and strong circumstantial evidence on exclusive possession, custody, control and knowledge of the dangerous drugs against the accused, but also in raising the presumption under s 37(da) of the DDA, in respect of all the four charges which, if unrebutted would warrant a conviction. The accused was thus called to enter upon her defence; (14) the prosecution had succeeded, by the absolutely overwhelming nature of the evidence tendered, in building up a formidable case of exclusive possession, custody, control and knowledge of the dangerous drugs against the accused in at least the second, third and fourth amended charges; (15) although the accused's cautioned statement was inadmissible, the court was nevertheless satisfied beyond all reasonable doubt that the accused was guilty as charged in respect of each of the four amended charges.

Public Prosecutor v Goh Kim Looi Criminal Trial No 47-4-90 High Court, Penang (Vincent Ng JC).

The accused was charged with trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') as he was found to have been in possession of 347.79g of heroin. The prosecution's case was that the accused was seen driving a car, whereupon the police party followed the accused's car. The accused stopped his car and was seen alighting from the car. Whilst he was outside the car, the police attempted to arrest him. The accused attempted to escape by running but was arrested 30m away. After his arrest, the police found a bag containing the drugs in the front passenger seat of the car. The accused's defence was that the bag belonged to his friend, one Johor Seng, who was in the front passenger seat with him and that his friend had placed the bag on the floor of the front passenger seat. The accused added that Johor Seng had then asked the accused to wait for him whilst he went to look for a friend, promising the accused that he would return soon to collect the bag. It was while waiting for Johor Seng that the police approached the accused. The reason why he attempted to run away then was because he thought that the police was after him in connection with his moneylending business. The prosecution contended that as the bag containing the drugs was found in the accused's car, he was in custody and control of it and therefore by virtue of the presumption under s 37(d) of the Act, he was deemed to be in possession of it. The issues before the court were: (a) whether the presumptions were applicable in this case; (b) if applicable, whether the defence had rebutted them; or (c) if not applicable, whether there was any direct or circumstantial evidence of possession of the drugs by the accused.

Held, acquitting the accused: (1) as the drugs were not found concealed in any compartment which had been specifically constructed to conceal the drugs, s 37(h) is not applicable in this case; (2) s 37(d) envisages by the use of the word 'anything' that the drugs were contained in a container or receptacle. Once it is established by the prosecution that the accused had in his custody or control the container containing the drugs, the accused is deemed to be in possession of the drugs. In such a case, the prosecution need not go any further to prove knowledge of the drugs on the accused's part. The relevant question therefore is whether it can be said that since the drugs were found in the car, the car falls within the word 'anything' in s 37(d); (3) per Thomson J). It cannot be said that by the mere fact that the accused had custody or control of the car, he is deemed to be in possession of the drugs found in it; (4) an owner of a vehicle does not necessarily have custody of a bag containing drugs found in a vehicle even if he has custody or control of the said vehicle. If the prosecution wishes to rely on the presumption under s 37(d), the prosecution has first to prove control or custody by the accused not of the vehicle but of the container found in the vehicle. The fact that the accused had control and custody of the car may in certain situations assist the prosecution in proving control and custody of the container but is not sufficient in itself; (5) the presumption would be inapplicable whenever the evidence indicated that there was more than one person in a car at the time when the drugs were found in the car, albeit in a container. In such cases, the presumption under s 37(d) has been held to be inapplicable without any distinction being drawn between custody and control of the vehicle as opposed to custody and control of the container; (6) where drugs are found in a vehicle and if the prosecution cannot prove conclusively that the accused had custody and control of the container containing the drugs, the prosecution must establish possession by direct or circumstantial evidence; (7) the prosecution had established that the car was registered in the accused's name and that the accused was seen driving the car and alighting from it. These facts alone were insufficient to establish conclusively that the accused had custody and control of the bag. However, the accused, by his assent in allowing Johor Seng to leave the bag in the car, could be said to have had custody of the bag. The presumption under s 37(d) must therefore apply against him; (8) the prosecution had succeeded in establishing that the presumption under s 37(d) is applicable in this case in so far as the accused had custody of the bag, the bag being 'anything' within the meaning of s 37(d). The accused therefore was deemed under s 37(d) to have had knowledge of the drugs in the bag and hence, possession of the drugs. By the application of s 37(da), he was deemed to have been trafficking in the drugs; (9) the burden of proof on the accused when discharging his duty to rebut the presumption is the same as that applied in civil proceedings, ie on a balance of probabilities; (10) under cross-examination, the accused withstood the vigorous examination by the prosecutor and did not falter with his explanation. There was nothing improbable about the defence story notwithstanding its brevity. There was no other evidence to contradict or disprove the accused's explanation that he had no knowledge of the drugs in the bag; (11) it appears that there is a strong likelihood that there was a second person in the car with the accused. Further, there is no evidence to show that the accused was seen handling or carrying the bag. Moreover, the accused was not apprehended by the police whilst he was actually in the car with the bag inside it. It should be further pointed out that at no stage did the police examine the bag or the drugs for fingerprints or nail clippings of the accused; (12) there is clear authority to establish the principle of law that s 37(d) does not apply merely because the drugs are found in a car, or in any vehicle. The vehicle in which the drugs were found does not fall within the meaning of the words 'anything whatsoever containing any dangerous drugs' (Tong Peng Hong v Public Prosecutor;on a balance of probabilities, the accused had no knowledge of the drugs in the bag and had therefore successfully rebutted the presumption of possession, and hence, trafficking under s 37(d) and (da) of the Act.

Public Prosecutor v Tan Tuan Seng [1993] 2 CLJ 557 High Court, Kuala Lumpur (Visu Sinnadurai J).

A was charged with trafficking in cannabis. X, a customs officer, gave evidence that A was arrested while carrying a brown bag containing cannabis at a customs check point. Y, also a customs officer, however, admitted under cross-examination that A was carrying two bags, one being the brown bag containing cannabis and the other an empty green bag. Upon A's defence being called, he testified that the green bag belonged to him but he was merely carrying the brown bag for another person, Z, who was also at the check point. A claimed that when he was asked by X about the brown bag, he disclaimed knowledge of it and pointed at Z. A further alleged that as he pointed at Z, the latter fled and escaped. The High Court convicted A of the charge and he appealed to the Supreme Court.

Held, allowing the appeal: (1) upon an issue depending on conflicting evidence, an appellate court ought to be greatly influenced by the opinion of the trial judge who has seen and heard the witnesses. However, where the trial judge has failed to observe inconsistencies or to take account of material circumstances or probabilities, an appellate court can act upon its own view of the conflicting evidence; (2) the question whether or not A was carrying two bags was crucial having regard to his defence that he was an innocent carrier at Z's behest. On this question, there was corroboration of the most potent kind of A's version which came from Y; (3) there was also an acute conflict of evidence for the prosecution between the evidence of X and Y. This gave rise to more than a reasonable doubt as to whether A carried one or two bags, the benefit to which A was entitled; (4) the trial judge made no mention of the fact that Y had admitted that A was indeed carrying two bags. The trial judge had therefore failed to take into account or give proper weight to or draw proper inferences from the fact that A might have carried two bags. In the circumstances, the trial judge had not taken proper advantage of having seen and heard the witnesses. Accordingly, this case came within the range where the appellate court was at liberty to act upon its view of the conflicting evidence.

Yusoff bin Kassim v Public Prosecutor [1992] 2 MLJ 183 Supreme Court, Malaysia (Abdul Hamid Omar LP, Peh Swee Chin and Edgar Joseph Jr SCJJ).

The accused was charged on two counts of trafficking in dangerous drugs in 1984, to wit, 19.864kg of raw opium and 1,129g of morphine respectively, and that the accused had thereby committed two offences under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'), punishable under s 39B(2) of the Act. The case for the prosecution was that at the date and time and place specified in each of the two charges, the accused was seen walking ahead of another person along a bund between dry padi fields and was seen carrying a sack on his right shoulder. Upon the police coming out of their ambush position and identifying themselves, the accused dropped the sack and ran across the padi fields. The accused was subsequently caught and arrested and brought to the place where he had dropped the sack. The sack was found to contain 11 packages. One package was found to contain, upon analysis by a government chemist, 1,129g of morphine, and this formed the subject matter of the second charge. The other ten packages contained a black substance which was, on analysis by the same government chemist, found to be 19.864kg of 'raw opium' within its definition in s 2 of the Act, and this was the subject matter of the first charge. There was a dispute as to whether the contents of the sack were 'raw opium' within the meaning of its definition before its amendment in 1984. The government chemist concluded from his analysis data that the opium in the ten packages was raw opium as specified in s 2 before its amendment in 1984. The accused, in defence, denied the facts alleged by the prosecution on several aspects but did not dispute the prosecution's case that he was, together with another person, walking on a bund and that both were carrying sacks, one each, and that he dropped the sack and ran. The accused claimed that he did not, at any time, realize what the sack he was carrying contained.

Held, convicting the accused of both charges: (1) having gone through the government chemist's expert opinion and the article on a Japanese study, 'Studies of Poppies and Opium' published in a United Nations Publication, Bulletin of Narcotics, April-June 1957 pp 20-33, that the chemist relied upon, the chemist's conclusion that the raw opium forming the subject matter of the first charge fell within its definition in s 2 of the Act prior to the 1984 amendment was to be accepted; (2) at the close of the case of the prosecution, there were primary facts not inherently incredible which showed that the accused was in possession of a sack containing 11 packages. The presumption was, under s 37(d) of the Act, that since he was in possession of the sack containing the drugs, he knew the nature of the drugs in the sack, ie he knew the raw opium in the sack was raw opium and he knew that the morphine in the sack was morphine. And the raw opium and the morphine being in excess of the amounts presumptive of trafficking under sub-ss (da)(v) and (ii) of s 37 of the Act, the accused is presumed to have trafficked in raw opium and morphine respectively. Therefore, on a prima facie basis, the two charges were made out; (3) there was no reasonable doubt created on the prosecution's case that the accused was seen together with another person carrying a sack each on the shoulder, and that both dropped the sacks and ran and the accused was arrested after a chase through some padi fields, and that the sack that he was carrying was the sack adduced in evidence before the court and that the sack contained raw opium and morphine. The accused was thus in possession of the sack and its contents; (4) considering the testimony of the accused in the totality of the evidence adduced, including the fact that the accused carried the sack in the dead of night and that he dropped the incriminating sack and ran when the police identified themselves, the presumption that he knew that the raw opium in the sack was raw opium and that he also knew that the morphine in the sacks was morphine had not been rebutted on the balance of probabilities; (5) further, the presumption that the accused was trafficking in the raw opium and the morphine as specified in the first and second charges respectively had not been rebutted on the balance of probabilities.

Public Prosecutor v Eyan a/l Endin Pan [1989] 3 MLJ 486 High Court, Kangar (KC Vohrah J).

A was charged with trafficking in 18.37g of heroin, an offence which is punishable under s 39B(2) of the Dangerous Drugs Act 1952. X, a police officer, testified that he found packets on A's body which contained pinkish granular substance. Another police officer, Y, said that the exhibits weighed 113g. Z, the chemist, however, gave evidence that the exhibits received from Y only weighed 102.85g. Z also testified that the packets contained powdery substance. According to Z, the colour of the substance in some of the packets was red while the colour of the substance in the other packets was pink. At the trial, A did not question the identity of the exhibits seized. A was convicted of the charge and he appealed to the Supreme Court. A argued for the first time that there was a serious doubt as to the identity of the exhibits seized.

Held, allowing the appeal: (1) the prosecution has the heavy burden to prove the charge. There is no burden on the accused person to prove his innocence. An accused person is entitled either at the trial or appeal to raise the question of whether the prosecution has proved its case beyond reasonable doubt. The fact that A did not raise the question as to the identity of the exhibits seized at the time of his trial did not mean that he could not raise such a question during the appeal; (2) the evidence in this case showed that there was a serious doubt concerning the identity of the exhibits. A's defence to the charge accordingly should not have been called.

Yeong Kia Heng v Public Prosecutor [1992] 1 MLJ 327 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

The accused was charged with the offence of trafficking in 256.51g of drugs, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). On 22 January 1991, he was arrested and found in possession of a total of 100 small packets containing some dried plant material suspected to be cannabis. A search was conducted of the accused's vehicle and at his house, but nothing incriminating was found. During the course of the prosecution's case, two issues arose which called for the court's ruling: (a) towards the end of the cross-examination of one of the prosecution witnesses, counsel requested the deputy public prosecutor to let him have sight of the Pulau Tikus Report No 147/91. The latter objected to this request; (b) after the close of the prosecution's case, the prosecution offered to the defence four witnesses, including one Ibrahim bin Arifin. When the court ruled that witnesses should not merely be offered but should also be made available, and inquired whether Ibrahim bin Arifin could be made available to the defence, the Deputy Public Prosecutor immediately applied to re-open its case and call one or two witnesses to testify as to his whereabouts. Counsel objected to this. The main issue, however, for judicial determination raised by the defence in their submission of no case to answer was whether the plant material found was cannabis as statutorily defined under the pre-amendment s 2 of the Act. It was submitted that the chemist had conducted the same tests that the respective chemists in Loo Keck Leong v Public Prosecutor and Public Prosecutor v Alcontara had conducted. What was challenged by the defence was the chemist's evidence that: 'I also found the presence of grandular hairs and also the presence of plentiful of resins in its natural droplet and globular form É From all these tests, I concluded that the plant material in the 100 packets was cannabis as defined in the Dangerous Drugs Act.'

Held, acquitting the accused without calling for his defence: (1) the court overruled the prosecution's objection. The complete removal of the original provision in s 113(1) of the Criminal Procedure Code ('the CPC') by virtue of Act A324 has the effect of clearly and decisively removing the pre-amendment distinction between first information and non-first information police reports; (2) there is no justification for the refusal by the learned Deputy Public Prosecutor to supply a copy of the police report to the defence on the ground that the same is not a first information report or for any other reason, it being also a public document by virtue of s 35 of the Evidence Act; (3) after the close of the prosecution's case, prosecution witnesses should not merely be offered but should be made available to the defence; (4) the court overruled counsel's objections and allowed the prosecution to reopen its case for that specific purpose. Section 425 of the CPC allows the court at any stage of the trial to summon any person as a witness if his evidence appears to be essential to the just decision of the case; (5) the words 'at any stage' in s 425 of the CPC would mean that the court may exercise its discretion to summon any person as a witness even if it entails the re-opening of the prosecution case, provided that the defence is not thereby prejudiced and it appears to be essential to a just decision of the case. However, such discretion should not be exercised where the defence had begun their submission of no case to answer and the application of the prosecution is for the purpose of effecting repairs to the prosecution case to counter-points submitted by defence in their submission of no case to answer; (6) it is only by the Dequinois Levin Test ('the DLT') and Thin Layer Chromatography ('the TLC') tests that the presence, though not the quantity, of cannabinoids are revealed. It is not the resins but the cannabinoids in the resins that are the offensive hallucinating agent envisaged in the Act. None of the four tests, including the DLT and TLC tests, is a quantitative test for cannabis resins. The resin itself does not bear any structure peculiar to cannabis resins; (7) the chemist would not have conceivably addressed or focused his mind on the question of plentiful or substantial presence of cannabis resin or cannabinoids in the plant material before the decision in Loo Keck Leong, whereby the mere presence of cannabis resin combined with the requisite morphological features of the plant was, until Loo Keck Leong, sufficient to satisfy the court that the plant was cannabis resin; (8) the chemist's assertion that he found cannabis as defined in the Act is not sustainable by his evidence, when considered in its entirety, and is devoid of any rational or scientific basis and most importantly, neither is it based on the results of any or any proper analysis by him on the crucial issue of the non-extraction of cannabis resin; (9) as such, the essential ingredient of the charge, that the plant material in the items seized was cannabis as defined in s 2 of the Act has not been made out by the prosecution at the end of the prosecution case.

Public Prosecutor v Ibrahim bin Arifin [1993] 2 CLJ 529 High Court, Penang (Vincent Ng JC).

The second accused ('the accused') was initially charged together with the first accused for trafficking in 311.4g of cannabis in furtherance of their common intention on 20 January 1987. At the close of the prosecution's case, the first accused was discharged and acquitted without being called upon to enter upon his defence. The accused was, however, called upon to enter upon his defence on the amended charge of trafficking in a dangerous drug in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). Against the prosecution's evidence that the first and second accused were, just before their arrest, seated together on the same chair in a restaurant with the second accused having an orange plastic bag containing cannabis placed just by his side and which he tried to hide when about to be arrested by the police, the accused's evidence was that he was, just before his arrest, not seated on the same chair as the first accused and there was no such orange plastic bag containing cannabis in the restaurant, let alone found beside him. Counsel for the accused argued, inter alia, that the prosecution had failed to prove that the accused had 'exclusive custody and control' of the orange plastic bag containing the cannabis.

Held, convicting the accused: (1) the prosecution evidence was principally that of three witnesses, all of whom were policemen. They corroborated each other in all the material aspects of the evidence. There was nothing to suggest that they had, in any aspect of their evidence, been mistaken or had lied or concocted their stories. There was nothing in the evidence to even remotely hint that a frame-up was probable. Their evidence was consistently accurate and credible; (2) the court therefore found that the accused was in the restaurant, sitting immediately beside the orange plastic bag containing the cannabis weighing 311.4g; (3) it is actually 'custody or É control' and not 'and' that the prosecution must prove (s 37(d) of the Act); (4) there is no requirement that the accused must be proven to have been holding the plastic bag for a certain period of time before he can be said to be in custody or control of the same. The fact of the accused sitting immediately beside the cannabis in a very confined area of the restaurant, the fact of the accused trying to run away and the fact of the accused trying to screen, by pushing it behind his back, the cannabis from sight after being confronted by the police justify the conclusion that the accused had control or custody of the plastic bag containing the cannabis at the time the police approached and arrested him. It matters not that the accused was not at any time seen carrying the said plastic bag; (5) the evidence that the first accused was seated next to the accused does not detract from the fact that the accused, and not the first accused, was seated immediately beside the said plastic bag. Given the confined area in which the cannabis was found beside the accused, the cannabis could not, at that time in the restaurant, have been under the first accused's custody or control. The first accused had the earlier custody while the accused had the later custody or control; (6) the burden was on the accused to rebut, on a balance of probabilities, the presumptions arising from custody or control of the orange plastic bag containing the cannabis. The evidence of the accused was only one of denial denial of having ever seen the plastic bag, denial of having been together with the first accused, denial of sitting on the same chair together with the first accused, and denial of being found immediately next to the plastic bag. The denials had not in any way created any doubt, on a balance of probabilities, in the prosecution's case. Neither were the presumptions of possession or knowledge rebutted; (7) the accused was therefore guilty of the offence. However, as the accused was at the time of the commission of the offence under the age of 18 years, the death sentence could not be passed. In accordance with s 16 of the Juvenile Courts Act 1947, the accused was ordered to be detained during the pleasure of His Excellency, the Yang Di-Pertua Negeri Sabah.

Public Prosecutor v Nur Hassan bin Salip Hashim & Anor [1993] 2 CLJ 551 High Court, Tawau (Ian Chin JC).

D was charged with trafficking in 2,972.5g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the 1952 Act'). X, the chemist, gave evidence in favour of the prosecution concerning the nature and the weight of the drugs. X testified that his weighing instrument had never been inspected and verified under the Weights and Measure Act 1972 ('the 1972 Act') because he was not required to do so under the 1972 Act. X, however, stated that his weighing instrument was in good condition and was accurate before each weighing.

Held, convicting D on a lesser charge: (1) there was no 'specific fact' that X had checked or calibrated his weighing machine as to its accuracy and had found it correct. Neither could such inference be drawn from any fact in this case. The prosecution had thus failed to prove beyond reasonable doubt the weight of the cannabis; (2) since the weight of the cannabis was unknown, the presumption under s 37(da)(vi) of the 1952 Act could not arise. Nor could s 39A(1) and (2) of the 1952 Act apply in this case; (3) the charge against D was amended to one under s 12(2) and (3) of the 1952 Act whereupon D pleaded guilty; (4) D was sentenced to three years' imprisonment from the date of his arrest.

Public Prosecutor v Ahmad Nadzari bin Ismail [1992] 2 CLJ 868 High Court, Kota Bahru (Sulaiman Hashim JC).

The accused was charged with possession of eight packages containing tightly packed plant material suspected to be cannabis. He was charged with trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The chemist's conclusion that the seized plant material was 'cannabis' as statutory defined under s 2 of the Act was challenged by counsel for the accused. Defence counsel also contended that there were no quantitative tests carried out for the presence of cannabis resin in the samples to determine the amount of cannabis resin extractable from them and that the samples taken by the chemist from the eight packages for testing were not homogeneous samples of the bulk of plant material seized.

Held, acquitting the accused: (1) as the gross weight of 20 random samples taken from each of the eight packages was in excess of the 50g threshold required to trigger the operation of s 39A(2) of the Act, the contention that the samples were not homogeneous samples of the bulk seized was untenable; (2) by the separate but close juxtaposition of the definition of 'cannabis' and of 'cannabis resin' in s 2 of the Act, the legislature had clearly intended to make a distinction between the offence of possession or trafficking in cannabis resin and cannabis plant in its natural state in wet or dried, but untampered by any extraction process, form; (3) it was not positively established that the plant samples examined were plant material from which 'cannabis resin had not been extracted' as defined. At most, the evidence was that they were plant material from which resin had 'not been completely or substantially extracted'. In most matters, the word 'substantial' is premised on the availability of an ascertainable whole amount or quantifiable gross quantity; (4) the court does not accept the expert opinion that there was 'no substantial extraction' of cannabis resin as it was not sustainable and was devoid of any rational, scientific or semantical basis. It was also not based on the results of any or any proper analysis by the chemist on the presence of cannabis resin in the samples taken. As such, the essential ingredient of the charge that the plant material seized was cannabis as statutorily defined was not made out at the end of the prosecution's case.

Public Prosecutor v Alcontara [1993] 1 MLJ 140 High Court, Penang (Vincent Ng JC).

[Annotation: Reversed on appeal. See [1993] 3 MLJ 568.]

The accused was charged with trafficking in 36.72g of dangerous drugs. Evidence was adduced by the prosecution to the effect that he was arrested in a car with the drugs on the seat next to him, in a plastic bag. The defendant denied he was arrested in possession of the bag. He claimed instead that after the police arrested him, they alleged that the bag containing drugs was his although the bag was never in his possession. His version of what happened contradicted the prosecution story completely, up to the detail as to who arrested him. An issue before the court was whether an adverse presumption must be held against the prosecution for failing to offer the informant, whom they alleged to be an agent provocateur.

Held, convicting the accused: (1) whether a particular witness needed to be offered by the prosecution really depended on the facts of any case. What was important was whether it had proved its case beyond reasonable doubt. In this case, the informant had not enticed the accused to do any wrong, and was not involved in the facts of the case except to provide information. As such he still could be protected under the law and need not be produced as witness; (2) the number of witnesses that a party produced was not important. What was relevant was whether the court believed the witnesses that testified. In this case, there was no reason for the court not to believe the prosecution witness who had no reason to lie just to frame the accused. On the other hand, the story of the accused appeared to be a fiction cooked up solely as an attempt to escape conviction.

Public Prosecutor v Chan Chor Shuh Criminal Case 47-1-95—High Court, Kuantan (Arifin J).

The four appellants had been charged under s 39B(1)(c) of the Dangerous Drugs Act 1952 (Act 234) ('the Act') in that in furtherance of the common intention of them all, they did do an act preparatory to trafficking in a dangerous drug, ie 1,871.6g of heroin, and thereby committed an offence punishable under s 39(B)(2) of the Act read with s 34 of the Penal Code. They were convicted and each sentenced to death. They appealed against their conviction and sentence. The facts showed that the accused were arrested as a result of a trap laid by the police with the assistance of an agent of the Drug Enforcement Administration of the United States and an informer. There were several grounds of appeal raised by each of the appellants but there were two common grounds: (a) the learned judge erred in law in failing to appreciate the break in the chain of evidence adduced by the prosecution regarding the recovery, safe-keeping, movements and production of the ten packets of heroin (Exh P5 A-J), the subject matter of the charge preferred against the appellants and which had raised a serious doubt in the prosecution case that the exhibits seized by the police at the scene of the crime were the very same exhibits which were produced in court by the prosecution; (b) the learned judge erred in law by concluding that the appellants were guilty of trafficking in heroin under s 39B(1)(a) of the Act instead of the offence of doing an act preparatory to the offence of trafficking under sub-s (c) as stated in the charge.

Held: (1) there was sufficient evidence as to the movements of the exhibits adduced by the prosecution in this case, and there was no break in the chain of evidence affecting proof as to the identity of the said exhibits; (2) in the case, the learned trial judge in fact found each of the appellants guilty as charged under s 39(B)(1)(c) of the Dangerous Drugs Act 1952. He also expressed the view that there was sufficient evidence to find the appellants guilty of trafficking in the said drugs even under s 39B(1)(a) of the Act so as to invoke the presumptions under s 37(d) and (da) of the Act. However he did not appear to have applied the presumptions and convicted each of the appellants of the charge on evidence adduced. In the circumstances, the appellants do not have any grounds for complaint; (3) in the case of the first appellant, the trial judge was correct in calling upon him for his defence and there were sufficient grounds for the judge to reject the defence and convict him of the charge; (4) in regard to the defence of the second appellant, the agent of the Drug Enforcement Administration was an agent provocateur and as such he is protected by the provisions of s 40A(1) and (2) of the Dangerous Drugs Act in that he is not presumed to be unworthy of credit, and his evidence relating to any attempt to abet or abetment of the offence if done for the purpose of securing evidence against an accused person is admissble. Similarly, any statement made to him by the accused person shall be admissible at the trial. There is therefore no requirement for the evidence of the agent provocateur to be corroborated; (5) the evidence revealed that the informer played an active part from the beginning to the end of the episode. He was a particeps criminis, an accomplice in the true sense of the word. However, in the light of the overwhelming prosecution evidence, the presence of the informer at the trial would not have made any difference; (6) having regard to the second appellant's involvement in the negotiations as deposed by the prosecution witnesses, the manner in which the transactions were carried out and his overall conduct in the deal, the learned judge was right in finding the second appellant guilty as charged; (7) in regard to the third appellant, the learned judge was justified in rejecting the defence that he meant to sell his father's land and not the dangerous drug and that he was the victim of a frame-up; (8) in regard to the fourth appellant, his actions as related by the prosecution witnesses lead to one and only one inference, viz, that there was a common intention to commit the very offence with which the appellants were convicted and the commission of the intended offence was done in furtherance of the common intention; (9) considering the facts and circumstances of the case as a whole, the defence story of a land transaction was completely implausible and it was most improbable that the appellants were so naive as to be innocent victims of a frame-up. The appeals should therefore be dismissed.

Namasiyiam & Ors v Public Prosecutor [1987] 2 MLJ 336 Supreme Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Syed Agil Barakbah SCJJ).

In this case, the accused was charged with an offence of trafficking in a dangerous drug, to wit, cannabis, in contravention of s 39B(1) of the Dangerous Drugs Act 1952 (Act 234). The accused was found guilty. On the day the accused was found guilty, s 39B(1) of the Dangerous Drugs Act 1952 was amended to provide for the mandatory sentence of death upon conviction in all cases of trafficking in contravention of the section. Before the amendment, the court had the option of sentencing the accused to death or imprisonment for life. The question which arose was what is the material date for determining the sentence for such offences and whether the amendment was constitutional so far as cases committed before the date of its coming into force was concerned.

Held: (1) purely as a matter of construction and considered by itself, s 39B(1) of the Dangerous Drugs Act 1952, in the form it now takes, is open to only one reasonable construction, namely, that it is the date of conviction which is the relevant date for the purpose of sentencing; (2) the subsection if it operates retrospectively, is clearly a law which comes within the striking range of art 7(1) of the Federal Constitution, and is therefore invalidated, so far as cases where the offence was committed prior to the date of its coming into force are concerned; (3) the court therefore has a discretion in the matter of sentence as it is the subsection in the form it took prior to the amendment which applies.

Public Prosecutor v Mohamed Ismail [1984] 2 MLJ 219 High Court, Penang (Edgar Joseph Jr J).

[Annotation: The accused was sentenced to life imprisonment and ordered to be given six strokes of the rotan on 18 April 1983. The grounds of judgment were reported at [1984] 1 MLJ 134.]

Public Prosecutor v Hun Peng Khai & Ors [1984] 2 MLJ 318 High Court, Penang (Edgar Joseph Jr J).

See CRIMINAL LAW, , Vol 4.

In this case, the facts were that as a result of information received, a US Drug Enforcement Administration Agent (the agent) was introduced to the second appellant sometime in December 1980. A few meetings took place subsequently. The purchase of the heroin was discussed among the agent, the second appellant, and the informant. Sometime in March 1981 the purchase price was agreed and the second appellant was to arrange for the supplier to deliver the drugs to a hotel room. A plan was conceived. As part of the plan, the informant was to fetch the second appellant and the supplier from some place and take them to a room at Rasa Sayang Hotel to meet the agent. The informant would then accompany the supplier (identified by the agent as the first appellant) to collect the heroin while the agent was to wait in the room. It was also part of the plan that the informant would give a signal after the first appellant had collected the drugs. On 10 March 1981, at about 2.55pm, a party of eight customs of-ficers took up position at Rasa Sayang Hotel. At 3.50pm the second appellant arrived at room 303, Rasa Sayang Hotel, with the informant and the first appellant. After the bag containing the money was inspected by the first appellant, the informant accompanied him to a car parked at the hotel car park. At about 4.20pm, Encik Low Tak Pun, Superintendent of Customs (Supt Low), a member of the customs ambush party, saw the first appellant walking to the lobby carrying a brown bag and proceeding towards a poster board. The first appellant placed the bag on the floor and and waited there. Supt Low then saw the informant who was near the in-house telephone booth giving the pre-arranged signal to effect arrest by lifting up the phone. Supt Low signalled his officers to effect the arrest. Upon arrest Supt Low took possession of the brown bag. From there he took the first appellant to the car parked under the porch in front of the hotel lobby. Inside the car Supt Low examined the bag and found ten packages wrapped in brown paper. Meanwhile the informant phoned the agent to tell him and the second appellant that the first appellant had been arrested. Both the agent and the second appellant came down to the lobby. The second appellant was then arrested. From the hotel both the first and second appellants were taken to Supt Low's office at Weld Quay, reaching there at about 5.20pm. While they were there, Supt Low handed the bag which was believed to contain the drugs to the Superintendant of Customs, Lum Weng Foo (Supt Lum). No evidence was led as to what Supt Lum did with the exhibits. The evidence however disclosed that at approximately 7.40pm on that evening Supt Low arrived at the Customs Office accompanied by Mr Law Yong Yong, the chemist, who conducted an initial test of the drugs. After the test, Supt Low said that he weighed the ten packages and kept the exhibits in his office under lock and key. The first appellant and the second appellant were subsequently charged and they were found guilty and sentenced to death. They appealed to the Supreme Court and on the appeal it was argued that the learned trial judge had erred in law (a) in not concluding that the non-calling of Supt Lum, the investigating officer, was fatal to the prosecution's case; (b) in not concluding that there was a breach in the chain of evidence relating to the exhibits.

Held: (1) fundamentally the matter in issue in this case is not whether there was a failure to call or not to call the investigating officer but whether the failure to call a particular witness gave rise to a serious gap in the prosecution's case; (2) in this case there was a serious break in the chain of evidence affecting proof as to the identity of the exhibits; (3) the decision whether to call a witness or not to call a witness from whom a statement has been taken is always the right of the prosecution. In so far as the trial court is concerned, its duty is essentially to decide whether on the evidence before it the prosecution has proved its case, and if there are unsatisfactory features in the prosecution's case to determine whether, in the light of such features, the prosecution's case falls short of proof beyond reasonable doubt; (4) the law is clear that it is unnecessary to call evidence to ensure that there is no break in the chain of evidence but where a doubt as to the identity of an exhibit arises, a failure to adduce evidence to provide the necessary link in the chain of evidence would be fatal to the prosecution's case. In this case there was such a failure; (5) in the particular circumstances of this case, the failure to call the witness had caused a serious break in the chain of evidence relating to the identity of the exhibits. The break was so serious that there could not be any statutory cure; (6) the appeal of the appellants should therefore be allowed and their conviction set aside.

Teoh Hoe Chye v Public Prosecutor and another appeal [1987] 1 MLJ 220 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

In this case, the accused was charged with trafficking in heroin, an offence under the Dangerous Drugs Act 1952 (Act 234). At the trial, evidence was given that the substances found by the police in regard to which the accused was charged were sent to the chemistry department for analysis, and the report of the chemist was tendered in evidence. However, no evidence was given of the service of the chemist's reports on the accused by the police officer who was alleged to have served them on the accused. At the end of the prosecution case, counsel for the defence said he would reserve his submission until the end of the whole case. The court then recessed to consider whether there was a prima facie case for the accused to be called. When hearing resumed, the trial judge drew the attention of the learned Deputy who was prosecuting the case to the fact that the police officer had never given evidence about the service of the chemist's report on the accused. The learned Deputy applied for leave under s 425 of the Criminal Procedure Code (FMS Cap 6) to call the police officer but this was refused.

Held: (1) as there was no evidence of the service of the chemist's report on the accused and neither was the chemist called to give evidence, the position at the close of the prosecution case was that there was no sufficient evidence to prove the essential ingredient that the substances the accused was alleged to have trafficked in were in fact heroin; (2) having regard to all the circumstances including the court's view of the effect of the system of trial being adversarial, the court did not exercise its discretion to invoke s 425 of the Criminal Procedure Code.

Public Prosecutor v Phon Nam [1987] 2 MLJ 262 High Court, Ipoh (Peh Swee Chin J).

In this case, the appellant had been charged with trafficking in dangerous drugs. At the trial, the defence did not challenge the evidence of the prosecution but relied on the defence of duress. The learned trial judge rejected the defence of duress and convicted the appellant and sentenced him to death. The appellant appealed.

Held , dismissing the appeal: (1) the law clearly envisages that to constitute threats causing the apprehension that instant death to that person will be the consequence, there must be reasonable fear. Persons who do criminal acts from fear of anything but instant death do them at their peril; (2) there was no misdirection in law as the learned judge fully appreciated what is required in law to constitute a valid defence of duress. The learned judge correctly conceived that each case would depend on the facts and surrounding circumstances of that particular case. He found that there was no evidence to suggest that duress was present or continued when the accused was arrested; (3) the learned judge in this case held that he could not find any evidence sufficient to cast a reasonable doubt on the prosecution's case. The court agreed with the trial judge that the defence of duress could not stand and the conviction must be upheld. As to sentence, the learned judge had exercised his discretion judicially and it was not right for the court to interfere.

Gregory v Public Prosecutor [1988] 2 MLJ 369 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

In this case, the accused pleaded guilty to a charge of trafficking in dangerous drugs, to wit, morphine. The accused was arrested on 30 June 1981 but the trial did not take place till 10 July 1984. The accused was sentenced to life imprisonment and 14 strokes of the rotan. The Public Prosecutor appealed against sentence.

Held: while the amount of the drug involved was large, if the respondent had had the benefit of an early trial, say in 1981 or 1982, it was questionable whether public opinion would then have so hardened as to demand that a court should impose the ultimate penalty of death on him. Out of some sense of compassion, the court exercised its discretion and imposed the sentence of imprisonment for life and strokes of the rotan.

Public Prosecutor v Oon Lai Hin & Ors [1985] 1 MLJ 314 High Court, Ipoh (Gunn Chit Tuan J).

[Annotation: See, however, the Federal Court's decision at [1985] 1 MLJ 66.]

In this case, the respondent had pleaded guilty to the charge of trafficking in dangerous drugs, that is, morphine. The learned trial judge in the exercise of his discretion sentenced him to a term of life imprisonment and 14 strokes of whipping. The learned trial judge appeared to have been influenced by two main factors, viz: (a) in all the previous appeals when sentence of death was substituted for life imprisonment and whipping, the dangerous drug involved was heroin and not morphine; b) the inordinate delay in bringing the case to trial after the arrest of the respondent. The Public Prosecutor appealed against the inadequacy of the sentence.

Held: (1) it makes no difference whether it was heroin or morphine. As long as the accused person was found guilty of trafficking in dangerous drugs in substantial quantity, the death sentence should be passed; (2) the fact that the respondent had pleaded guilty to the charge and was a first offender is also not a valid reason for not imposing the death penalty if he was convicted of trafficking in dangerous drugs in large quantities; (3) the two factors considered by the learned trial judge do not constitute exceptional circumstances and are therefore irrelevant.

Public Prosecutor v Oon Lai Hin [1985] 1 MLJ 66 Federal Court, Kuala Lumpur (Seah, Mohamed Azmi and Syed Agil Barakbah FJJ).

In this case, the appellant had been found guilty on a charge of trafficking in 931g of cannabis and sentenced to death. The only ground of appeal was that the learned trial judge had applied the wrong quantum of burden in coming to his finding that the appellant had failed to rebut the presumption raised by the prosecution evidence. The learned trial judge in his judgment had said: 'Having deliberated dutifully on the defence, I was of the considered opinion that the accused's version had failed to rebut the presumptions raised by the prosecution and was in effect a mere denial of the charge calculated only to pervert the course of justice. It could not be considered to be consistent with innocence or be reasonably true on a balance of probabilities.'

Held: (1) in this case, the first limb of the words implying the burden upon the appellant 'to be consistent with innocence' is a term commonly used by courts to indicate the ordinary burden of proof upon an accused on the defence being called. It is the lesser burden and if applied can hardly be objectionable; (2) the next limb 'it could be considered to be reasonably true on a balance of probabilities' is the heavier burden which the law places upon an accused once the presumption comes into effect; (3) the questions raised in the appeal would not have arisen had the learned judge confined himself to the time honoured description of this burden as commended in Yuvaraj's case [1969] 2 MLJ 89, ie on the balance of probabilities.

Akin Khan bin Abdul Rahman v Public Prosecutor [1987] 2 MLJ 217 Supreme Court, Kota Bharu (Wan Suleiman, Hashim Yeop A Sani and Syed Agil Barakbah SCJJ).

In this case, the two appellants had been found guilty of trafficking in a dangerous drug and sentenced to death. It was submitted by the counsel for the appellants that the learned trial judge should have accepted counsel's submission of no case to meet at the end of the prosecution case; the learned judge should have given reasons in his grounds of judgment why he called upon the appellants to answer the charge; the learned judge should not at this stage come to the conclusion that the prosecution witness was a witness of truth.

Held: (1) upon the evidence in the case, the learned judge was right to come to the conclusion at the end of the prosecution case that the charge of common intention to traffic the drug was made out which, if unrebutted, would warrant the conviction of the appellants, both within the principles laid down by the Privy Council in Haw Tua Tau v Public Prosecutor [1981] 2 MLJ 49 and Mahbub Shah v King Emperor LR 72 IA 148; (2) in the context of the learned judge's grounds as a whole, he meant no more than that he accepted the evidence of the three prosecution witnesses as being credible. Even however accepting that the learned judge in this regard went beyond the parameters of [biHaw Tua Tau, there was no substantial miscarriage of justice on the evidence adduced and this was a proper case for the application of the proviso to s 60(1) of the Courts of Judicature Act 1964 (Act 91); (3) looking at the evidence for the defence in this case, it would appear to strengthen the case, for the prosecution rather than detract from it. There could be no justification to interfere with the learned judge's findings.

KL Barlow v Public Prosecutor; BG Chambers v Public Prosecutor [1986] 2 MLJ 104 Supreme Court, Kuala Lumpur (Salleh Abas LP, Seah and Abdoolcader SCJJ).

The accused was charged with trafficking in 77.68g of heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952. The evidence was that the accused rode a motorcycle to a shop, then entered the shop leaving behind a plastic bag (later found to contain heroin) in the carrier basket of his motorcycle. A police inspector, who formed part of an ambush, followed the accused into the shop and arrested him. The accused was taken to the fivefoot way of the shop and asked where he had kept the dangerous drug. He did not reply but once the drug was discovered in the plastic bag, he replied to a further question that there was about 1 lb of heroin. The defence counsel requested a trial within a trial to determine the voluntariness of the accused's statement and whether s 37A had been complied with. He raised four points, and submitted that, on the basis of these points, the prosecution had failed to prove that, prima facie, the requirements of s 37A had been complied with. The points were: (a) that there was no evidence that the arresting officer was a police officer of at least the rank of inspector at the time he recorded the cautioned statement; (b) that the accused was under oppression as he was handcuffed at the time of giving the statements; (c) that the caution was not explained to him; (d) that the caution was defective as the police officer omitted the word 'mungkin'.

Held, convicting the accused: (1) the first point was without merit as the defence counsel made no indication that the police officer's rank was an issue in the trial within a trial therefore there was no need to adduce evidence to prove his rank; (2) there was no question of oppression as handcuffing the accused at the fivefoot way and during the journey to the police station was the prudent thing to do. Furthermore, there was no evidence that the accused was handcuffed at the police station; (3) as a matter of law there was no need for the recording officer to explain the caution to the accused as the words are self-explanatory and can be easily understood; (4) the whole effect and intention of the caution must be looked at. The words used in this instance were sufficiently simple, clear and adequate for the accused to comprehend; (5) the words to be used by the recording officer need not be exactly those used in s 37A;the defence evidence, in essence, was a lame denial coupled with an implied allegation that two police officers had lied in court.

Pendakwa Raya v Naa At Leong Criminal Case No 47-14-91 High Court, Shah Alam (Mohd Hishamudin JC).

The two appellants were charged jointly with trafficking drugs. The evidence adduced by the prosecution was that a police party saw two males cycling together into the compound of the Kangar Hospital, and also subsequently saw one of them hand two plastic bags to the other. The police closed in to arrest the two persons. The police were able to arrest the second appellant who immediately dropped both bags. The other person then snatched one of the bags, fled and escaped. Subsequently, some five months later, the first appellant was arrested when he came to the Kangar Magistrate Court in connection with some traffic offence. He was identified by the ASP in charge and one other member of the police party who were in the Kangar Hospital compound earlier. The two appellants were subsequently charged and at the trial, the learned judge found that the prosecution had established a prima facie case against both the appellants and their defence were called. The second appellant in his defence said that on the day in question he went with Ah Lian, a stranger, to the Kangar Hospital, and there that person handed him a plastic bag to be given to one Ah Chai. He therefore handed the plastic bag to Ah Chai, who was then coming out of a car nearby. Immediately after that, he was arrested and his companion who had earlier said his name was Ah Lian snatched the plastic bag from Ah Chai and ran whilst Ah Chai got into his car and drove off. The second appellant insisted that the first appellant was not the person called Ah Lian, who had handed the plastic bag to him in the Kangar Hospital compound. The defence of the first appellant was an alibi. He claimed to be in Padang Besar, Thailand, from 16 November 1978 till 20 November 1978, and in support he produced a border pass, the genuineness of the contents of which was challenged by the prosecution. The learned judge found both the appellants guilty and they appealed to the Supreme Court. At the appeal, it was argued inter alia: (a) the learned judge had applied the wrong onus in considering the defence of alibi raised by the first appellant. The learned judge had said 'the onus on the defence is on the balance of probability'; (b) the learned judge was in error in remarking that 'it is incumbent upon the defence to call this witness, let alone object to the calling of the witness'. The prosecution had sought to call an immigration officer to rebut the evidence of the first appellant but this had been refused by the learned judge.

Held: (1) the learned trial judge was in error in not making a distinction between the burden to rebut a presumption on a balance of probability and a burden to raise a reasonable doubt on the evidence led by the prosecution; (2) the learned trial judge was in error in stating that the onus on the defence, where the defence is one of alibi, is on the balance of probabilities. The burden is the usual evidential burden cast upon an accused person, that is, to raise a reasonable doubt; (3) the presumption under s 37(d) of the Dangerous Drugs Act 1952 (Act 234) that the person affected is deemed to have been in possession and to know the nature of the drug 'until the contrary is proved' and, in s 37(da) of the Act, deemed to be trafficking in the drug until the contrary is proved means that the burden resting on a party to a civil proceedings, that is, on a balance of probabilities, is applicable; (4) as regards the defence of alibi, all that an accused person needs to do is to raise a reasonable doubt that he was the person at the scene of the crime. The proper approach is for the learned trial judge to consider at the close of the defence case whether he had indeed succeeded in doing so. Since in this case the learned trial judge may have applied the heavier burden, he had misdirected himself; (5) s 114(g) of the Evidence Act 1950 (Act 56) cannot be invoked against an accused person nor can the failure of the accused to call any witness be made the subject of comment at a criminal trial. The learned trial judge was therefore in error in remarking that it was incumbent on the defence to call the immigration officer in this case; (6) the appellate court is unable to say whether the learned judge would have found the first appellant guilty had he rightly directed himself on the two important issues of law abovementioned. The appeal of the first appellant should therefore be allowed and he be acquitted and discharged; (7) as regards the second appellant, his conviction was supported by the evidence on material particulars. He was caught red-handed with the dangerous drugs, and the learned trial judge was entitled to reject his defence having regard to the facts and surrounding circumstances of the case.

Illian & Anor v Public Prosecutor [1988] 1 MLJ 421 Supreme Court, Kuala Lumpur (Wan Suleiman, Mohamed Azmi and Syed Agil Barakbah SCJJ).

Public Prosecutor v Chong Boo See [1988] 3 MLJ 292 High Court, Penang (Edgar Joseph Jr J).

See CRIMINAL LAW, Vol 4, para 63.

In this case, the following questions were reserved for determination by the Supreme Court: (a) whether a charge under s 39B of the Dangerous Drugs Act 1952 (Act 234) is defective in law if it is not specified therein the words 'on his own behalf or on behalf of any other person'; b) if the answer to question 1 is in the affirmative, whether, having regard to the presumption under s 37(da) of the Act, such defect is curable by s 422 of the Criminal Procedure Code (FMS Cap 6).

Held: (1) the words 'on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia' appearing in s 39B of the Dangerous Drugs Act 1952 are merely to emphasize that an offence is committed by any person who traffics in dangerous drugs, whether on his own behalf or on behalf of any other person, whether the other person is in or outside Malaysia. These words do not constitute an element which is essential to complete the offence and may be omitted from the charge without affecting the legality of the charge; (2) on the evidence relied on by the prosecution in this case, the charge was sufficient and valid. The omission of the words 'on his own behalf or on behalf of any other person' cannot be said to vitiate the charge and is not fatal to the charge; (3) the answer to question 1 is in the negative. Question 2 does not arise.

Public Prosecutor v Ahmad bin Shafie [1988] 1 MLJ 255 Supreme Court, Kuala Lumpur (Salleh Abas LP, Abdul Hamid CJ (Malaya).

In this case, the accused were arrested after a police raid following information. The learned trial judge found that there was a prima facie case against the accused and called on them for their defence.

Held: (1) the charge had been proved against both accused beyond all reasonable doubt and they were accordingly convicted; (2) there were no extenuating circumstances in this case and the accused were sentenced to death.

Public Prosecutor v Tan Gong Wai & Anor [1985] 1 MLJ 355 High Court, Penang (Edgar Joseph Jr J).

On 23 March 1984, Insp Mudasir (PW2) with a party of officers raided the premises No 5-N, 3rd floor, Taman National, Jalan Gopeng, Ipoh. In one of the rooms, packets containing approximately 20.43g of heroin were found. The accused was also found in the room and was arrested by the officers. At the close of the prosecution case, the learned defence counsel submitted that there was no case to answer. However, the learned trial judge ruled that a prima facie case had been made out and called on the accused to enter on his defence. The accused gave evidence that he rented the room for nine days only and that for two out of such nine days he did not stay there. Moreover, he alleged that he did not notice the drugs in question and that they did not belong to him.

Held: the defence had not raised a reasonable doubt which entitled the accused to be acquitted. The accused is guilty and is convicted and sentenced to death.

Public Prosecutor v Wong Ah Ngan [1987] 1 MLJ 333 High Court, Ipoh (Peh Swee Chin J).

The accused was charged in the Penang High Court with trafficking in 840.8g of heroin on 28 July 1982 in contravention of s 39B(1)(a) and punishable under s 39B(2) of the Dangerous Drugs Act 1952 (Act 234). Following the receipt of information, the Penang police learned that the accused had 5lb of heroin for sale at the price of RM16,000 per lb. PW1 agreed to set a trap on 28 July 1982 whereby PW1 and an informer were to meet the accused at Bayview Hotel that afternoon. PW2 would negotiate the purchase and if successful he would bring the accused to PW2's car. PW2 and the informer would return to the hotel to await delivery of the drug by the accused. PW2 and the informer met the accused that afternoon and the accused agreed to supply 5lb of heroin at RM80,000, and PW2 showed him the money kept in the boot. The accused left and reappeared at about 3.15pm. PW2 followed the accused to his car (no PAN 213) parked in front of the hotel. The accused opened the boot of his car and closed it after a while. PW2 signal to PW1 by removing his hat. PW2 and the informer then left the accused who walked back to his car PAN 213. As he was about to open the door on the driver's side, PW1 approached him and identified himself, whereupon the accused ran but was apprehended with the help of other police officers. PW1 recovered five plastic packets of a brownish granular substance wrapped in newspaper. PW1 then arrested the accused. The chemist report proved that the five packets contained a total of 2,220.9g of a light brown substance which contained the equivalent of 840.8g of heroin. The learned judge called for the defence of the accused. The gist of the defence was that an antique dealer by the name of Ah Cheng told the accused to meet a European and an Indian at Bayview Hotel for some business. The accused said that it was Ah Cheng who asked him to deliver 'the thing' to the Indian and the European, and Ah Cheng told the accused that 'the thing' was some antique items. The accused accordingly drove car (no PAN 213) to Bayview Hotel. In substance, the accused tried to prove that he had no knowledge of the drugs and put the entire blame on Ah Cheng.

Held: (1) the accused was not a witness of truth. His story about Ah Cheng and his whereabouts could not be believed. The story that the accused was going to Bayview Hotel to meet a European and an Indian regarding the sale of some antique things and that the accused was carrying them for the fictitious Ah Cheng also could not be believed; (2) the accused's story could not be considered to be reasonably true or consistent with his innocence. The defence had not, on the balance of probabilities, cast any doubts on the truth of the prosecution case about the negotiation for the sale of drugs by the accused with PW2 resulting in his arrest on 28 July 1982 at Bayview Hotel. The accused was therefore found guilty as charged; (3) the accused had not shown any extenuating circumstances that would justify the lighter sentence of life imprisonment. He was sentenced to death.

Public Prosecutor v Tahir bin Kassim [1985] 1 MLJ 381 High Court, Penang (Mohamed Dzaiddin J).

[Annotation: The Dangerous Drugs (Amendment) Act 1983 (Act A553) decreased the specification of the weight for heroin or morphine under s 37 from 100g to 15g for the presumption to arise against any person found in possession of the drugs, and the penalty on conviction for trafficking in the dangerous drugs in excess of 15g is death.]

The accused was charged under s 39B of the Dangerous Drugs Act 1952 ('the Act') with the offence of trafficking in heroin. The prosecution's case was that she was found, during a police raid at the premises where she rented a room, rushing towards the back portion of the premises and when arrested she had several items in both her hands, including a quantity of heroin. Her defence was that the police had fabricated the prosecution's case against her. According to her, the police had feigned the recovery of certain items from her blouse pocket which one of the police said contained heroin. She also said that the police had recovered from outside the back of the premises a bag which one of them said contained heroin and accused her of being its owner. She also claimed that some other person or persons living in one of the rooms in the house had escaped through the back door of the house when the police raided the house and that the heroin was most probably theirs. There were various discrepancies in the evidence of the investigating officer and the arresting officer, particularly when considered along with the sketch plan, the photographs, the police report lodged by the investigating officer after the raid and the evidence tendered by the defence.

Held, acquitting the accused: (1) features from heresay should not be shown in a sketch plan. Unfortunately, police witnesses still persist in putting such features in a sketch plan which should only show permanent features visible to them. Courts in admitting such sketch plans as aids to better understanding of the testimony of witnesses allow identification of the additional features unless there are objections from defence counsel; (2) the investigations in this case were unsatisfactorily conducted. The blemishes in the prosecution's case had become accentuated, and more blemishes had been revealed, in the light of the totality of the evidence. The evidence of certain members of the raiding party with their inherent inconsistencies and their inconsistencies when viewed against the police report, the sketch plan, the evidence of the investigating officer and the defence, left the court in a state of doubt as to what actually took place at the time of the raid; (3) the cardinal principle enshrined in the law of the country is that the onus of proving the guilt of an accused is throughout on the prosecution, and if upon the whole evidence the court is left in a real state of doubt, the prosecution had failed to satisfy the onus of proof which is upon it. The accused had succeeded in raising a reasonable doubt on the prosecution's story that she was in possession of the drugs; (4) in the result, the court did not have to consider the rebuttable presumptions raised under s 37(d) and (da) of the Act, namely, that she was deemed to have known the nature of the drugs and that she was deemed to have trafficked in the drugs.

Public Prosecutor v Wong Moy [1988] 3 MLJ 280 High Court, Kuala Lumpur (KC Vohrah J).

The accused was charged with trafficking in dangerous drugs under s 39B of the Dangerous Drugs Act 1952 ('the DDA'). He was arrested at a bus-stop in Jalan Pudu and brought to the Cawangan Anti-Dadah, Police Headquarters ('the CAD') for questioning. The police then took the accused to a stall in the vicinity of the bus-stop where he had been arrested and recovered a partly torn brown envelope containing heroin in a wooden bin by the stall. The prosecution's case was that the envelope was found as a consequence of information given by the accused to the police during questioning and the information was therefore admissible under s 27(1) of the Evidence Act 1950 ('the Act'). The prosecution argued that the information showed that the accused had knowledge, custody and control of the drugs and that the presumptions under s 37(d) of the DDA were applicable. The accused, however, denied giving the information to the police and alleged that even before he was taken to the CAD, the police took him to the stall and asked him where the drugs were. He said that he did not respond to the question and was taken to the CAD for questioning. The drugs were subsequently found on the second visit to the stall, after the accused was questioned by the police. The three main issues before the court were: (a) whether there was sufficient evidence to establish that the accused did give the in formation to the police; (b) if it is established that the accused did give the information, whether the information was admissible under s 27 of the Act; and (c) whether the prosecution had established all the necessary ingredients for the offence with which the accused was charged.

Held, acquitting the accused: (1) applying the guidelines on the scope of s 27 and being conscious of the dangers of freely admitting statements allegedly made by accused persons to the police, there must be clear evidence to indicate that the accused did give the alleged information to the police which led to the discovery of certain other facts, in this case, the drugs. In the light of the doubts raised by the defence and in the absence of any uncontroverted proof that the accused did give the information as to the whereabouts of the drugs to the police, the prosecution had failed to prove beyond reasonable doubt that the accused did give the information; (2) it is a well-established principle of law that in order for information to be admissible under s 27, it must relate to a fact which was not otherwise known to the police. If the fact was already known to the police, no information given by the accused, even if it amounted to a confession, may be admitted under s 27; (3) furthermore, any prior knowledge of the police that the accused possessed or had hidden drugs in a particular place, though the exact location had not been identified, would make the subsequent confession inadmissible under s 27 in so far as it relates to the accused's knowledge of the drugs or the place where the drugs were found. The information must be the cause of the discovery and not the basis of confirmation of an already known fact. Where the police could discover a fact without the assistance of the accused, the subsequent finding of the object with the assistance of an accused through the information, cannot make the information admissible under s 27; (4) and (b) the fact discovered need not necessarily relate to the discovery of the object used in the commission of the offence, ie it can relate to the place where the accused concealed the object or to the fact that the accused had knowledge of the existence of the object. The fundamental basis of admitting the information is that the subsequent discovery of the fact guarantees the truth of the information or makes the confession reliable. In this case, doubts were cast as to whether the police had knowledge of the envelope in the bin even before the alleged information was given by the accused. Therefore, even if the information was proved to have been given by the accused, the prosecution had failed to establish that the police had no prior knowledge soas to make the information admissible under s 27; (5) knowledge is an essential ingredient of the offence of possession and trafficking and without the assistance of the information, the prosecution had failed to establish that the accused had knowledge of the drugs in the bin. Even if the prosecution had succeeded in establishing knowledge, it would still have failed to establish that the accused had custody and control over the drugs as the bin was accessible to the general public and the accused had no exclusive control over it. Control or custody of the drugs is an essential ingredient of the offence of possession and it had not been proved beyond reasonable doubt in the present case. As a consequence also, the prosecution could not rely on the presumption under s 37(d) of the DDA; (6) (obiter) it is firmly established that s 27 of the Act, s 113 of the Criminal Procedure Code (FMS Cap 6) and s 37A of the DDA stand independently of each other. As such, a statement made without a caution being first administered or a statement held to be involuntary does not preclude the admission of the statement under s 27. However, as s 27 makes serious inroads into certain fundamental principles of the criminal law, the courts have been cautious in admitting such confessions and a strict interpretation has been given to s 27; (7) there are two important factors in determining whether an information is admissible under s 27: (a) the discovery of the fact must be subsequent to the giving of the information;(obiter) the need for strict proof that the accused gave information leading to the discovery of certain facts places a more onerous responsibility on the police to record the statement made by the accused person in such a manner that the proof of it may be readily established. It is best that the information is recorded in a manner such that no doubt may subsequently be cast as to whether the accused in fact gave such information or of what exactly he had said. To overcome such problems, the police could either tape the recording of the statements made by the accused or even videotape theentire process.

Public Prosecutor v Basri bin Salihin [1994] 2 MLJ 476 High Court, Kuala Lumpur (Visu Sinnadurai J).

In this case, the accused was charged with trafficking in opium. The accused was alleged to have possession of the opium found in a house raided by the police. The learned trial judge held that there was a prima facie case against the accused and called on him to enter on his defence. The accused gave evidence that he was not the occupier of the room where the opium was found and he did not have custody of it.

Held: it was a matter of grave doubt as to whether the accused had custody or control of the opium found in the room in the house. In any event, he had no power of disposal of the opium and could not be said to have possession of it. The accused should therefore be acquitted.

Public Prosecutor v Tan Seow Chuan [1985] 1 MLJ 318 High Court, Seremban (Peh Swee Chin J).

The accused was arrested by the police on 18 March 1983 in a flat in Johore Bahru. The police also seized from the flat 62 packets of suspected drugs and 67 used and unused syringes. The packets of suspected drugs were sent to the Chemistry Department, Johore Bahru, for analysis and were confirmed to be heroin and 6-monoacetylmorphine. The report was served on the accused on 26 November 1983. The accused was then tried in Criminal Trial No 10-1984 ('the first trial') for trafficking in heroin and 6-monoacetylmorphine. He was convicted and appealed against his conviction. The Supreme Court ordered a retrial on the ground that 6-monoacetylmorphine was not listed as a dangerous drug at the time of the accused's arrest. In the retrial, the report of the chemist was admitted without objection by the defence. At the end of the prosecution's case, the defence alleged that the chemist's report was wrong and inadmissible as the chemist had not been called. This admission was rejected and the accused was called to enter upon his defence. He testified that the drugs were for his own consumption.

Held, convicting the accused: (1) s 399 of the Criminal Procedure Code (FMS Cap 6) did not require the chemist's report to be served more than once on the accused. As the report was the same report served before the first trial, it did not have to be re-served. The defence had not tendered a notice to call the chemist and when the report was tendered the defence counsel did not object. The admissibility of the report could not then be challenged; (2) the accused had custody and control of the heroin. He was the only person in the room at the material time. He was the sole subtenant of the room and no other person or persons visited the accused in the same room. The drugs were in close proximity to the accused. and the court therefore inferred that the was in possession of the said drugs; (3) the amount of heroin found was large and did not justify personal consumption. The drugs were also packed in 62 small plastic bags which the court found was an unusual way of storage for personal consumption. The 67 syringes were an unusually large amount for the accused to have in his possession. The accused may be an addict but it did not mean that he was not a trafficker. There was no evidence adduced to show the accused was a chronic addict and that the required a substantial amount of heroin each day for consumption; (4) the accused had therefore failed to rebut the presumption of trafficking.

Public Prosecutor v Ooi Lean Chai [1991] 1 MLJ 189 High Court, Johore Bahru (James Foong JC).

The accused was charged with trafficking in dangerous drugs under s 39B of the Dangerous Drugs Act 1952 ('the Act'). At the time of the arrest, the accused was holding two plastic bags which contained 2,877 rolls of paper which on examination, were found to contain 757.6g of cannabis. It was the prosecution's case that as the accused had custody and control of the bags containing the dangerous drugs, under the Act, he was presumed to have possession and knowledge of the drugs in the bag, and therefore to be trafficking in them. The accused testified that he was approached by his friend to help to pass the two bags on to a Chinese who was across the road. He did so without asking any questions as to the contents of the bags. That was when he was arrested.

Held, acquitting and discharging the accused: (1) as the accused had custody of the bags, he was presumed to also have possession of the drugs in the bags and therefore knowledge of the drugs in the bags. He was then deemed to be trafficking in the drugs. However, knowledge of the drugs is a rebuttable presumption. If the accused succeeded in rebutting this presumption, he would also have rebutted the presumption of possession and hence trafficking; (2) the burden of proof cast on an accused in a case where he has to rebut a statutory presumption is one on a balance of probabilities; (3) in considering whether an accused person has sufficiently rebutted the presumption of possession of dangerous drugs, it is legitimate for the court to scrutinize the evidence as to what the accused said contemporaneously with the act or omission and also the surrounding circumstances under which the accused acted or failed to act; (4) from the demeanour of the accused in court, he appeared to be an honest and truthful witness. There was also nothing improbable with the explanation. Furthermore, his evidence coulc not be rejected merely because it was given by a witness who also was the accused person. There was also no direct evidence to contradict the accused's story. Also, although there was no need to, there was no evidence that the accused had knowledge of the drugs, for example, fingerprints to positively connect the accused to the drugs. The accused had therefore rebutted the presumption on the balance of probabilities and entitled to an acquittal. Besides, the only witness for the prosecution was tentative in his replies.

Public Prosecutor v Mohd Natsir bin Abdullah Federal Territory [1993] 3 CLJ 173 High Court, Kuala Lumpur (Visu Sinnadurai J).

In February 1984, the appellants were arrested and jointly charged under s 39B of the Dangerous Drugs Act 1952 ('the Act') for trafficking in raw opium. Their trial, however, only commenced in January 1988 and after many adjournments, they were convicted and sentenced to death in October 1988. The appellants filed their notices of appeal in November 1988 but the trial court's written grounds of judgment was only provided to them in February 1992, and their appeal came before the Supreme Court in September 1993. The principal issue for determination before their Lordships was whether the delays in the trial itself and in the provision of the trial court's grounds of judgment had prejudiced the appellants, and if so, what remedy should be ordered to redress the prejudice. Their Lordships also dealt with the prosecution's failure to call a material witness whom the appellants alleged was the trafficker of the said drugs, and the related issue as to whether the appellants had rebutted the statutory presumption of trafficking against them under s 37(da) of the Act.

Held, quashing the appellants' conviction under s 39B of the Act and substituting their death sentences with life imprisonment under s 6 read with s 39A of the Act: (1) the appellants' trial was adjourned on numerous occasions and was 'chopped up and conducted on an instalment basis' for a few days at a time over a period of nine months. Such a debilitating trial was against the accepted practice and procedure of criminal trials in this country, particularly those embodied in Registrar Circular No 1 of 1960 which require a trial to be carried on from day to day until its conclusion unless it is absolutely essential to adjourn the trial. It is unacceptable to adjourn partly heard criminal trials sine die as such a practice will inevitably result in inordinate delays in the administration of justice and will affect the quality and reliability of judgments; (2) the trial court's delay of over three years before providing its written grounds of judgment was wholly intolerable and had made an utter farce of the proper and expeditious administration of justice. Such a long delay was unsatisfactory and prejudicial as there was every likelihood that the trial judge's impression on the demeanour of witnesses had been blurred. The delay could also have increased the chances of the trial judge omitting from his written grounds of judgment, or failing to take into account, material facts and issues which were favourable to the appellants; (3) although the principle 'justice delayed is justice denied' is of general application, and it does not follow that every form of delay should result in vitiating the whole criminal proceedings, their Lordships found that prejudice against the appellants had been sufficiently demonstrated as a result of the delay in their trial and in the provision of the written grounds of judgment, and thus, proceeded to exercise the powers conferred by s 60 of the Courts of Judicature Act 1964 to vary the decision of the trial court; (4) the trial court had omitted to consider whether the appellants had, on a balance of probabilities, rebutted the statutory presumption of trafficking under s 37(da) of the Act, in view of the prosecution's failure to call the said material witness whom the appellants alleged was the real trafficker of the drugs, or to offer the said witness to the defence. The burden of the defence was merely to cast a reasonable doubt in the prosecution's case, and the trial court had erred in law in placing on the defence the burden to clear the unexplained issues concerning the said witness whom the prosecution had failed to call. In the absence of the said witness giving evidence, the law would require those unexplained issues to be resolved in favour of the appellants; (5) if the trial court had indeed entertained (as it appeared to have had from its written grounds of judgment) the possibility of the said witness being the real trafficker of the drugs, or that the said witness was framing the appellants, it would then be its duty to find the appellants not guilty of trafficking under s 39B of the Act; (6) their Lordships agreed that the appellants had rebutted the statutory presumption of trafficking under s 37(da), but were guilty of possession under s 6 read together with s 39A of the Act; (7) (per curiam) while written submissions are useful up to a point, particularly on issues of law, they invariably suffer from the same weaknesses as those of a delayed judgment when dealing with issues of fact. Unless absolutely essential, the court should insist on oral submissions in criminal trials, when the evidence is still fresh in the minds of the parties concerned.

Tan Hun Wah v Public Prosecutor and another appeal [1994] 1 MLJ 382 Supreme Court, Kuala Lumpur (Jemuri Serjan CJ (Borneo).

In this case, the appellants had been convicted of the offence of trafficking 974g of heroin. The evidence showed that they were involved in the sale of heroin and that they were part of an organized syndicate trafficking in dangerous drugs. They appealed against conviction and sentence.

Held: (1) the appeal against conviction must be dismissed as there was sufficient evidence to justify their conviction; (2) other than in the most exceptional circumstances, a sentence of death should be imposed following a conviction for trafficking in dangerous drugs, in order to mark the gravity of the offence, to emphasize public disapproval, to serve as a warning to others, to punish the offenders, and most of all to protect the public.

Chang Liang Sang & Ors v Public Prosecutor [1982] 2 MLJ 231 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

In this case, the custom authorities stopped a car driven by the first appellant. The seond appellant was seating in the front seat next to the driver. There were two women and children in the back seat. The customs authorities found raw opium hidden behind the back rest of the rear seat of the car. The evidence showed that the second appellant had borrowed the car from the owner and had been using it from 13 August 1977 to 15 August 1977, when the car was stopped and searched by the custom authorities. The first appellant was a mere driver who was asked to drive the car. The appellants were convicted for trafficking in dangerous drugs and sentenced to life imprisonment plus six strokes of rotan each. They appealed against their conviction.

Held: (1) in this case, the presumption under para (d) of s 37 of the Dangerous Drugs Act 1952 (Act 234) has no application because the car in which the opium was found could not be held to be 'anything whatsoever containing' the dangerous drug; (2) the presumption under para (h) of s 37 of the Act has no application because the opium was not found in any specially constructed compartments of the vehicle; (3) the presumption under para (g) of s 37 of the Act did not apply as the motor car did not constitute 'premises' within the meaning of the Act; (4) the circumstances in this case including the fact that the second appellant lied about the purpose of borrowing the car showed that the second appellant knew that the raw opium was concealed in the car, and so possession was proved against him. His conviction and sentence should therefore be maintained; (5) in this case, the false statement by the second appellant concerning the surrounding circumstances in which the offence was committed whilst he had an opportunity to commit the offence could be regarded as corroboration of the evidence against him; (6) there was no evidence against the first appellant except that he was a mere driver and therefore his appeal must be allowed.

Syed Ali bin Syed Abdul Hamid & Anor v Public Prosecutor [1982] 1 MLJ 132 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

The accused were charged with an offence under s 39B of the Dangerous Drugs Act 1952 (Act 234). They wanted to call a witness, C, to testify on their behalf. However, C had been charged previously by the same judge for a similar drug trafficking offence but had been acquitted at the close of the prosecution's case. Even though acquitted, adverse findings were made by that court against C. In the present case, it would be part of the defence that C had access to the premises where the drugs were presumably found and which the accused were charged with trafficking, and it was likely that blame would be attributed to C. The Deputy Public Prosecutor raised a preliminary point that the court should disqualify itself from hearing the case as it might be suspected of being biased against C.

Held: (1) in a trial under s 39B of the Dangerous Drugs Act 1952, the judge is both judge of law and judge of fact. The court would be placed in an invidious position that if the court were to acquit both the accused at the end of this case that a lingering doubt should arise or exist in the minds of the prosecution and the public that the court had acquitted them because it had previously dealt with a case where it had made certain adverse findings against a material witness and that its adverse findings had influenced its decision in this case; (2) public policy requires that, in order that there should be no doubt about the purity of the administration of justice, any person who is to take part in it should not be in a position that he might be suspected of being biased; (3) the court therefore disqualifies itself from hearing the case.

Public Prosecutor v Lau Tuck Weng & Anor [1988] 3 MLJ 217 High Court, Kuala Lumpur (KC Vohrah J).

The accused was charged with the offence of trafficking in cannabis (ganja) under s 39B of the Dangerous Drugs Act 1952 ('the DDA'). The accused was arrested and found to be in possession of drugs ('the drugs') in a trap set by the police. The agent provocateur who dealt with the accused in the drugs concerned ('Busra') was the main prosecution witness in the case. He gave evidence relating to the negotiations he made with the accused relating to the purchase and the subsequent recovery of the drugs. His evidence was corroborated by ASP Badaruddin, his superior who co-ordinated the arrest and by DPC Chan, another agent provocateur who was in the car at the time of arrest. The accused submitted that the testimony of Busra raised a 'nagging doubt' on the prosecution case. The accused questioned, among others, why he was not arrested earlier although Busra claimed he knew the accused was a drug trafficker some 11/2 months before and why the present trap was set not from the information provided by Busra but from another source. He also queried why there was no negotiation on the price of the drugs to be supplied by the accused and why there was a need for Busra to introduce himself to the accused as though they were strangers when he was already known to him and why DPC Chan was not introduced to the accused. The accused also submitted that the failure of the prosecution to tender the police report lodged by ASP Badaruddin of the arrest of the accused in the trial amounted to suppression of evidence which should attract the adverse presumption under s 114(g) of the Evidence Act 1950. The prosecution, however, took the stand that the police report was inadmissible as it was not a first information report. Both the usual quantitative and qualitative analyses of the plant materials found on the accused (ie the drugs) were conducted by the chemist ('the chemist') who came to the conclusion that the drugs were of the genus cannabis. On being examined on whether the plant material tested was cannabis (Indian Hemp) as listed in Pt III of the DDA, the chemist replied that Indian Hemp was just another name for cannabis. The accused submitted that cannabis could not be Indian Hemp as the two are listed in different parts of the First Schedule of the DDA and proposed that the charge be reduced in favour of the accused to one of illegal possession of Indian Hemp under s 12(2) of the DDA. The accused also argued that the chemist could not tell if the resin had been extracted from the plant materials. The accused alleged that the chemist's analysis was inadequate as she did not examine the drug packet by packet but merely took random samples after mixing all the materials together.

Held, discharging and acquitting the accused: (1) in the absence of any contradiction or any element of inherent probability, the evidence of any witness given on confirmation, whether a police witness or not, should normally be accepted; (2) its non-production would not attract the adverse presumption under s 114(g) of the Evidence Act 1950; (3) there was no indication in her evidence that the drug could be Indian Hemp as opposed to cannabis and therefore, there could be no question of reducing the charge to s 12(2) of the DDA; (4) while the increased penalty provision of s 39A(f) and the presumption of trafficking proviso of s 37(da)(vi) only apply to 'cannabis' and not 'cannabis (Indian Hemp)'. By reason that they are listed in different parts and in different punishable sections, it is crystal clear that 'cannabis' is not the same dangerous drug as 'cannabis (Indian Hemp)'. The chemist's evidence that 'cannabis' and 'cannabis (Indian Hemp)' were the same drug struck at the very root of her competency as an expert, to the extent that it cast grave doubts on her finding that the plant materials she had analysed were in fact cannabis as defined in s 2 of the DDA. Therefore, the prosecution case must fail at this stage as the prosecution had failed to prove beyond reasonable doubt that the plant materials recovered from the accused were cannabis; (5) to establish that the drug was cannabis, the chemist must be able to verify that the resins on the plant materials she examined had not been extracted. While the failure of the prosecution to examine the chemist on this could be fatal, the accused's counsel's own inquisitive cross-examination allowed the chemist to confirm that resins were in fact found in abundance in their naturally occurring state on the plant organs which led her to conclude that they had not been extracted from the plant materials she examined; (6) a first information report is no longer the criteria for deciding whether a report is admissible. A police report (whether a first information report or not) is not a substantive piece of evidence of the truth of what is stated in it; its evidential value is limited to the 'corroboration' it provides under s 157 of the Evidence Act 1950, ie merely to show consistency between a previous statement and not an independent evidence from an extraneous source. As it is not substantive evidence, its production is a matter of discretion and the choice of the prosecution depending on whether they deem it necessary to deploy it to good use under s 157;the chemist's finding was that the drug she analysed was in fact cannabis, otherwise known as Indian Hemp;the drug 'cannabis' is listed in Pt I and Pt II of the First Schedule while 'cannabis (Indian Hemp)' is listed in Pt III of the same schedule. Possession of 'cannabis' is punishable under s 6 whereas possession of 'cannabis (Indian Hemp)' is punishable under s 12(2);under s 37(j) of the DDA, it shall be presumed until the contrary is proved that the drugs found in all the other receptacles are also of the same nature and description as those of the samples which were tested. There appeared to be no discrepancy in the chemist's analysis.

Pendakwa Raya v Abdul Latiff bin Abdullah Criminal Case No PCT 58-9-92 High Court, Ipoh (Kang Hwee Gee J).

Public Prosecutor v Chew Siew Luan [1982] 2 MLJ 119 Federal Court, Penang (Raja Azlan Shah CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 233.

The appellants had been convicted in 1982 of jointly trafficking in 361.7g of heroin after they chose to remain silent when called to enter upon their defence in the sessions court. On appeal, their grounds were: (a) the material discrepancies between the testimonies of the prosecution witnesses and the sketch plan exhibited by the prosecution should have led the trial judge to hold that there was insufficient evidence to establish a prima facie case against the appellants; (b) the evidence of the government chemist who was a prosecution witness was wrongly admitted as there was insufficient evidence that he was an expert in the analysis of heroin; (c) there was a break in the chain of evidence on the possession and custody of the exhibits seized, analyzed and ultimately exhibited before the court on trial. The respondent conceded that there was what in effect amounted to a break in the chain of evidence on the custody of the drug exhibits but countered the last argument by saying that, by failing to challenge the identity of the exhibits, that line of defence by the accused was negated.

Held, allowing the appeal: (1) the contradictions between the prosecution witnesses' testimonies and the details in the sketch plan were serious, but there was sufficient evidence on the whole which, if accepted in its entirety, justified the calling of the defence and which, because of the choice of the appellants to remain silent, largely remained unrebutted; (2) the trial court was wrong to presume that the government chemist was an expert merely because of his long experience (12 years) in the profession without more evidence being led to show that he had specific experience in the analysis of drugs, including heroin; (3) when the case was tried ten years ago in the sessions court, the standard of care required in the handling and custody of drug exhibits was not very strict, which would explain the unsatisfactory manner in which the drugs were kept. However, in view of binding Supreme Court decisions on the issue, the court could not now allow a lower standard of care in cases tried in lower courts; (4) it is also settled law that the burden of proving the identity of the substances seized remained with the prosecution throughout (on a 'beyond reasonable doubt' basis), and there is no requirement on the defendant to register any challenge on this issue; (5) so it became incumbent upon the court to re-examine the evidence available before the court; (6) in deciding whether to call for defence the court has merely to apply a prima facie test by asking hypothetical questions, but to convict an accused at the end of defence, the court has to hold that the case has been proved beyond reasonable doubt. It is the court's duty to suspend judgment until defence closes, which is when the defendant chooses to close it, be it before or after giving evidence. The test to be applied, therefore, is a higher test at the close of the defence, even if the defendant elects not to give evidence. The lower court was therefore wrong to hold that it was bound to convict the accused simply because they chose to remain silent after being called to enter upon their defence;in view of the appellants' success on the second and third grounds of the appeal, the convictions had to be set aside.

Kumaraguru & Ors v Public Prosecutor [1994] 1 MLJ 254 High Court, Penang (Vincent Ng JC).

Munusamy v Public Prosecutor [1987] 1 MLJ 492 Supreme Court, Kuala Lumpur (Salleh Abas LP, Mohamed Azmi and Wan Hamzah SCJJ).

See CRIMINAL LAW, Vol 4, para 65.

Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433 Supreme Court, Kuala Lumpur (Anuar CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 128.

Public Prosecutor v Chong Nyuk Min & Anor [1995] 3 MLJ 642 High Court, Ipoh (Kang Hwee Gee J).

See CRIMINAL LAW, Vol 4, para 220.

Namasiyiam & Ors v Public Prosecutor [1987] 2 MLJ 336 Supreme Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Syed Agil Barakbah SCJJ).

See CRIMINAL LAW, Vol 4, para 211.

In this case, a woman who was pregnant was charged with trafficking in 157.08g of heroin, an offence under the Dangerous Drugs Act 1952 (Act 234), which carried a punishment of death or imprisonment for life. The learned President of the Sessions Court granted her bail pending the hearing of the case relying on the proviso to s 388(1) of the Criminal Procedure Code (FMS Cap 6). An appeal by the Public Prosecutor against the order granting bail was dismissed by the learned judge of the High Court who held that s 41B(1) and (2) of the Dangerous Drugs Act 1952 does not override the proviso to s 388(1) of the Criminal Procedure Code. (See [1982] 1 MLJ 280.) He later referred the following questions to the Federal Court: (a) whether or not s 388 of the Criminal Procedure Code overrides the provisions of s 41B of the Dangerous Drugs Act 1952; (b) if the answer to question (i) above is in the negative, whether it is right in law for bail to be granted in respect of a person charged for an offence under s 39B of the Dangerous Drugs Act 1952.

Held: (1) the provisions regulating the granting of bail under the Dangerous Drugs Act must be construed in the context of that Act and not that of the Criminal Procedure Code and to that extent, the general provisions of the Criminal Procedure Code must ex necessitate yield to the specific provisions of s 41B of the Dangerous Drugs Act in that regard; (2) the answer to the first question referred to the court must be in the negative and the second was accordingly a non sequitur.

Public Prosecutor v Chew Siew Luan [1982] 2 MLJ 119 Federal Court, Penang (Raja Azlan Shah CJ (Malaya).

A was charged with trafficking in 2,709.5g of cannabis, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2). A was caught red-handed with a bag containing the drug. A's defence was that he was an innocent carrier with no knowledge that the bag contained the drug in question.

Held, convicting A on the charge: (1) having regard to the evidence in the case, A was deemed to be in possession of the drug and to have known the nature of the drug until the contrary was proved. Further, having regard to the quantum of the drug recovered, A was presumed to be trafficking in the drug. In the instant case, there was no break in the chain of evidence with regard to the custody of the drug from the date of seizure until its production in court. The prosecution had accordingly established a prima facie case against A; (2) as A had failed to rebut the statutory presumption raised against him on the balance of probabilities, the learned judge held that the prosecution had proved its case beyond reasonable doubt. A was accordingly convicted and sentenced to death.

Public Prosecutor v Jul bin Alih [1989] 2 MLJ 63 High Court, Tawau (Mohamad Noor J).

D were charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') with the offence of trafficking in more than 200g of cannabis. A police party had raided a shophouse where a canvas bag containing the drug was recovered from a room in which D1 was found. While in the room, D1 had told the police that the cannabis belonged to D2, her boyfriend. D2 was subsequently arrested and nothing incriminating was recovered as against him. One of the issues for the decision of the learned judge was whether the statement made by D1 was admissible in evidence.

Held, acquitting and discharging D2 at the end of the prosecution's case and convicting D1 on the reduced charge of possession: (1) in the instant case, the statement of D1 was inadmissible in evidence under s 37A of the Act. Having regard to the circumstances of the case, the statement was made by D1 after her arrest and no caution as required by s 37A was administered to D1 before the statement was made; (2) in the instant case, the evidence against D2 was only circumstantial. There was no other cogent evidence which had real probative value to the charge. As no prima facie case had been established against D2, the learned judge acquitted and discharged him at the end of the prosecution's case without calling for his defence; (3) having regard to the evidence in the instant case and the statutory presumptions invoked by the prosecution against D1 under s 37(b), (d), (g) and (da)(vi) of the Act, a prima facie case had been established against D1. As D1 had successfully rebutted the presumption of trafficking in the drug on a balance of probabilities but not the statutory presumptions as to possession of the drug, the learned judge convicted her on the reduced charge of possession of the drugs; (4) although on a charge of possession under the Act, it is not necessary for the prosecution to prove the ingredient of power of disposal of an accused person over the drug found, a finding by the learned judge in the instant case of the absence of such power of disposal by D1 was one of the relevant factors which enabled the court to come to the conclusion that D1 was not engaged in trafficking in the drug; (5) in the instant case, the learned judge was of the view that it was not necessary to go through the formality of amending the earlier charge under s 39B of the Act and calling upon D1 to plead to the amended charge before convicting her on the reduced charge under s 6 read with s 39A(2) of the Act. Although ss 167 and 169 of the Criminal Procedure Code (FMS Cap 6) do not provide that the charge need not be amended and the plea of an accused need not be taken thereto, it would depend on the circumstances in each case whether it is necessary to amend the charge and a plea taken on it bearing in mind whether an accused person may be prejudiced thereby. In the instant case, the unframed reduced charge was available from the start having regard to the facts and the evidence had been presented in such a way as to raise all the same issues of facts, as would have been raised had the unframed charge been framed and trial claimed on it.

Public Prosecutor v Rosyatimah bte Neza & Anor [1989] 1 MLJ 360 High Court, Ipoh (Peh Swee Chin J).

The accused was charged under the Dangerous Drugs Act 1952 with the offence of cultivating cannabis. The prosecution relied largely on two cautioned statements made by the accused and the evidence of one Sumari bin Saribu (PW11) who had been arrested near the scene of the crime. In his evidence, Sumari had named the accused. The defence objected to the admissibility of the cautioned statements. The police inspector who administered the caution admitted that in the caution he administered, which was translated into simple Malay, there was no comma after the word 'tidak'. The inspector had experienced difficulty in understanding the accused because of the accused's Javanese accent and so he called another inspector to act as interpreter. The statements were recorded in Malay. The recording officer also admitted that he had recorded the words of the interpreter and not the words of the accused. He had read back the statements to the accused but they were not interpreted to the accused. In addition, the accused had been subjected to long hours of interrogation. He was once interrogated for [171/2] hours until the early hours of the morning in breach of the Police (Lock Up) Rules 1953 which provides that prisoners shall be locked up for the night by 6.30pm and shall rise and be dressed by 6.30am. The accused had also alleged that he had been beaten during interrogation and that he had fabricated his statement to avoid further beating. The police witnesses admitted that there was opportunities to beat the accused. Sumari too alleged that he had been assaulted by the police after his arrest and that the police had uttered threats to him.

Held, acquiring and discharging the accused: (1) for the statements to be admissible, the prosecution to prove affirmatively to the satisfaction of the court that the statements were made voluntarily and not obtained by any improper means; (2) without the comma, the caution could mean two things. It could mean that what the accused said could be used in evidence or that it could not be used in evidence against him. Therefore, the caution itself was very ambiguous, especially so when the caution had to be translated into simple Malay for the accused; (3) it was doubtful whether the statements were recorded in a proper manner. The words in the cautioned statements were not the words of the accused. Furthermore, the statements were not interpreted back to him. For this reason, the cautioned statements were inadmissible; (4) the way the accused was interrogated was indeed unfair and the court must regard it as oppressive. In addition, there was a strong probability that the accused was assaulted after which he agreed to make a statement. The court had no hesitation in coming to the conclusion that the accused was put under treatment physical and mental pressure in order to compel him to make the statements. The statements were inadmissible because the court was fully satisfied that the statements were not made voluntarily. The court was also satisfied that the statements were not made without correction or threat; (5) when the prosecution closed their case, there was no evidence at all to link the accused with the cultivation of the plants or with the exhibits. The only evidence was the evidence of Sumari. Assuming that he was not under pressure to give the evidence, he had been found and arrested at the scene and was therefore an accomplice and his evidence was not corroborated by anyone in the sense that the plants belonged to the accused or the plants were cultivated by the accused. Neither was there circumstantial evidence which pointed to the guilt of the accused; (6) the prosecution, at the close of their case, need not prove their case beyond reasonable doubt. All that they needed to show was that there was some credible evidence to link the accused with the offence with which he was charged. There must be some evidence which is not inherently incredible. In this case, there was no evidence at all to link the accused with the cultivation of the plants or with the exhibits. There was therefore no prima facie case against the accused.

Public Prosecutor v Kamde bin Raspani [1988] 3 MLJ 289 High Court, Johore Bahru (Zakaria Yatim J).

The respondent was charged in the session court with having under his control 9.39g of heroin, an offence under s 12(2) of the Dangerous Drugs Act 1952 (Act 234) and punishable under s 39A. The respondent claimed trial and at the conclusion of the trial, the President found him guilty of the charge. The President convicted him and sentenced him to five years' imprisonment with effect from the date of arrest and in addition punished him with six strokes of whipping. The Public Prosecutor appealed against the sentence, contending that in the circumstances of the case, the sentence was manifestly inadequate. Counsel for the respondent contended, on the other hand, that the appellant must show that the sentence was manifestly inadequate. He added that the prosecution did not press for a deterrent sentence in the lower court.

Held, allowing the appeal: (1) the mere fact that the prosecution does not address the court on the question of the amount of sentence to be awarded is immaterial; (2) public interest plays a dominant role when the court is exercising its discretion in considering the appropriate sentence in a case under the Dangerous Drugs Act; (3) apart from public interest, another important factor which the court must consider is the quantity of the heroin found in the control of the respondent; (4) in view of the failure on the part of the President to consider, in his grounds of judgement, the question of public interest and the amount of heroin found with the respondent, the President had erred in exercising his discretion when he sentenced the respondent. His decision on sentence in this case was manifestly wrong. It was therefore an appropriate case for the present court to interfere with the discretion of the President; (5) the sentence of five years' imprisonment and six strokes of whipping should be enhanced to ten years' imprisonment with effect from date of arrest and 12 strokes of whipping.

Public Prosecutor v Darmalingam [1987] 2 MLJ 519 High Court, Kuala Lumpur (Zakaria Yatim J).

Lee Look v Public Prosecutor [1985] 1 MLJ 240 High Court, Kuala Lumpur (Gunn Chit Tuan J).

See CRIMINAL LAW, Vol 4, para 218.

The accused was apprehended by the police after a chase and was discovered to be in possession of a package containing 83.62g of heroin. He was then charged with trafficking under s 39B of the Dangerous Drugs Act 1952. When giving evidence, the accused admitted that he was an addict and claimed that he was carrying the package for a friend named Tan who normally supplied him with drugs. He claimed to have had no knowledge of the contents of the package. However, in his cautioned statement, the accused claimed that he received the package from three Malay persons who paid him RM100 to carry it.

Held, convicting the accused: (1) s 37(g) of the Dangerous Drugs Act 1952 ('the Act') does not create any presumption of knowledge of the nature or quantity of the drug in question. It only creates a presumption of knowledge of the act of concealment. Knowledge of concealment by itself is not equivalent to possession. Custody or control of a dangerous drug has to be shown to bring s 37(d) into operation. It is then presumed that the accused was not only in possession but also deemed to have known the nature of the drug; (2) the requirement of knowledge as to the fact of possession of the drug and the nature of the drug is a question of law. There is no rule of law that to sustain a charge of trafficking it is incumbent upon the prosecution to prove that the accused knew the precise weight or amount of drug found in his possession. The whole purpose of the presumption is to relieve the prosecution of this burden by shifting the onus of proof, once the fact of possession has been established; (3) s 39B of the Act does not create an absolute offence. The prosecution must show that the accused had the dangerous drug in his care or custody. Once that is done, mens rea in the sense of being in possession of the drug with knowledge of its nature will be presumed; (4) the issue as to whether a person knew or did not know something will depend upon credibility. The accused contradicted himself on who gave him the package and on how much he was paid. These were serious discrepancies. The fact that the accused knew that Tan was a supplier of drugs and the fact that the accused concealed the package in his trousers suggested that he knew its contents.

Public Prosecutor v Lim Chang Ming [1990] 2 MLJ 497 High Court, Kuala Lumpur (Shankar J).

[Annotation: The accused appealed to the Supreme Court vide Criminal Appeal No 05-18 of 1989. The appeal was dismissed by the Supreme Court comprising Lee Hun Hoe CJ (Borneo), Mohamed Azmi and Ajaib Singh SCJJ on 11 September 1989.]

Public Prosecutor v Chong Nyuk Min & Anor [1995] 3 MLJ 642 High Court, Ipoh (Kang Hwee Gee J).

See CRIMINAL LAW, Vol 4, para 220.

The accused was charged with trafficking in 23.02g of heroin under s 39B of the Dangerous Drugs Act 1952 ('the Act'). The prosecution relied entirely on the presumption of trafficking in s 37(da)(i) of the Act given the weight of the drugs as analysed. The government chemist was therefore called as the first witness. He gave evidence that he received two packages containing 20 sealed packets and ten sealed packets respectively of pinkish granular substance on 9 May 1988 from the police. The chemist weighed the packets of pinkish granular substance in two lots with their seals intact. He then put the entire contents of each lot in a blender to thoroughly blend the same. After blending, a sampling process known as quartering and coning was applied, and he came to the conclusion that the two packages seized contained a total of 23.02g of heroin. He returned the packages to the police on 4 July 1988. As the prosecution was not calling any further evidence on the issue of trafficking, at the conclusion of the chemist's evidence, the court invited submissions on whether the prosecution were able to prove the offence of trafficking.

Held, convicting the accused on the amended charge of possession: (1) the testimony of the chemist had to be scrutinized so as to ascertain whether the prescribed weight of the heroin had been proved beyond a reasonable doubt; (2) the chemist did not ensure that the substance was devoid of air and moisture before weighing it, and did not take into consideration the weight of the air and moisture in his reckoning of the net weight of the substance. He thus could not testify as to their weight; (3) the chemist had not adopted the procedure set out in s 37(j) of the Act. He lumped the contents of all the packets in one lot and mixed the lot. This was prejudicial to the accused because the greater the amount to be mixed, the greater the effort needed to do so and the greater the risk was of the mixture not being uniform. The procedure adopted was unsatisfactory; (4) the chemist claimed to have mixed the substance in accordance with accepted procedure. He did not, however, say who prescribed the practice and how it came about and by whom it was accepted. Merely stating that the substance was mixed thoroughly was insufficient; (5) the chemist said that he removed from the mixed substance a representative sample which he worked on to arrive at what he considered to be the percentage of heroin contained in that sample. He did not weigh the sample and therefore was unable to give evidence of the quantity of the sample he took in which heroin was detected. There was thus no basis on which the chemist could conclude the weights of the heroin in the packages. There should have been evidence as to why the chemist considered the unspecified amount he took by way of sample was sufficient for his purpose whereupon it would have been for the court to decide whether the amount was adequate; (6) there was no evidence before the court of the description of the instrument the chemist used to weigh the substance, how it worked or of it being in proper working order and duly serviced; (7) according to the chemist, the exhibits were handed to him on 9 May 1988 and he completed his analysis on 13 June 1988. There was no evidence as to who had possession, custody or control of the exhibits in the interim. The courts require evidence of regular and proper custody of exhibits in cases of this nature. The lack of evidence in this regard was unsatisfactory; (8) in all cases in which opinion evidence was receivable, whether from experts or not, the grounds or reasoning upon which such opinion was based may properly be inquired into. On the facts of this case, there were serious gaps in the chemist's evidence and the court was not satisfied that the chemist had properly analysed the substance produced to him; (9) taking the representative sample, the chemist testified to carrying out three named tests. He did not describe the tests, in particular any quantitative test. His evidence in this respect was unsatisfactory;for the court to hear the prosecution's case to its conclusion and then make a finding pursuant to s 180 of the Criminal Procedure Code (FMS Cap 6) ('the Code') would have been an exercise in futility. Section 158 of the Code is clear in its terms and empowered the court to alter the charge at any time before judgment is pronounced. The court thus exercised that power and altered the charge to one of possession.

Public Prosecutor v Lee Beng Siang [1992] 2 MLJ 120 High Court, Muar (Richard Talalla J).

Public Prosecutor v Darmalingam [1987] 2 MLJ 519 High Court, Kuala Lumpur (Zakaria Yatim J).

See CRIMINAL LAW, Vol 4, para 40.

P appealed to the Supreme Court against their conviction and sentences on charges of trafficking in and possessing dangerous drugs. P1 was sentenced to death under s 39B of the Dangerous Drugs Act 1952 ('the Act') while P2 was sentenced to life imprisonment on a reduced charge under s 39A of the Act. The Public Prosecutor appealed to the Supreme Court against the conviction and sentence in respect of P2. In their appeal, P raised a number of points relating to the issue of joint trial, the alleged irregularity in the body examination carried out on both of them, the alleged break in the chain of evidence relating to the exhibits and the alleged misdirection on the part of the learned judge when considering the scars on the arms of P1. As for the appeal by the Public Prosecutor, it was contended that it was not open to the judge, in view of the definition of trafficking in s 2 of the Act, to reduce the charge as he did as such a plea of personal addiction to a charge of trafficking is not available to a person accused of such an offence.

Held, allowing P1's appeal and dismissing the appeals of P2 and the Public Prosecutor: (1) as regards the appeal of P, their Lordships found that in respect of P1, the learned judge had not given due consideration to her defence that she was in fact an addict and not a trafficker, particularly in the matter of the bodily deformations that were exhibited with regard to intravenous injection marks on her arms and thighs. Their Lordships were of the view that the learned judge was wrong in holding that these marks were the result of assault by P1's de facto husband in spite of the matter having been raised in the medical evidence adduced. As for the other points raised in the appeal, their Lordships held that there was no miscarriage of justice so as to justify interference by them. P1's conviction and sentence under s 39B of the Act were quashed and substituted with a conviction under s 39B for possession of the drugs and a sentence of life imprisonment with effect from the date of arrest. The appeal by P2 was dismissed; (2) as regards the appeal by the Public Prosecutor, their Lordships held that despite the wide definition of the word 'trafficking' in the Act, the defence of own personal consumption can still be raised but whether it will succeed would depend on the facts of each case. As the learned judge had upheld the defence after a thorough consideration of the evidence, their Lordships rejected the appeal. Their Lordships, however, made it very clear that their decision in upholding the defence of personal consumption rested wholly on the particular circumstances of the instant case which must not be taken as a licence for the general contention of personal consumption irrespective of the quantity of drugs involved.

Philis & Anor v Public Prosecutor and another appeal [1989] 3 MLJ 289 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

Shukri bin Mohamad v Public Prosecutor [1995] 3 MLJ 229 Supreme Court, Kuala Lumpur (Eusoff Chin CJ, Edgar Joseph Jr and Wan Adnan FCJJ).

See CRIMINAL LAW, Vol 4, para 31.

The accused were jointly charged with trafficking in dangerous drugs, namely, 3,503g of cannabis, under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The government chemist examined and analysed the compressed dried leaves and confirmed them to be 3,503g of cannabis as defined in the Act.

Held, acquitting the accused without calling for their defence: (1) proof that the subject matter of the charge was cannabis is required for an offence under s 39B(1)(a) of the Act; (2) the prosecution had not fully complied with the principle set out in Wong Chop Saow v PP [1965] 1 MLJ 247. There was not an iota of evidence led as to how the government chemist analysed the drugs in question nor was there evidence that the resin had not been extracted, bearing in mind that the resin is the 'soul of a cannabis plant'; (3) it is incumbent on the prosecution to lead evidence through the government chemist to establish beyond reasonable doubt that the subject matter of the charge was in fact cannabis within the meaning of s 2 of the Act; (4) in this case, the government chemist's opinion that the subject matter was in fact cannabis was unsupported by credible evidence. He merely concluded that it was cannabis without stating his reasons and without itemizing the tests undertaken by him; (5) the prosecution failed to establish the names of both accused persons even though they had the means of doing so. The prosecution therefore clearly had not acted within the scope of Abdul Hamid v PP [1956] MLJ 231; (6) there were two versions to the prosecution's story in regard to the handling of two packages containing the purported cannabis in question. This weakens the prosecution's case greatly; (7) there were several movements of the exhibits from the cabinet file which was not a government issued cabinet. It was therefore not controlled by means of a register book where its contents and the movement of its contents would be recorded. The possibility of a mix-up could not therefore be ruled out.

Public Prosecutor v Abdul Karim & Anor Perak Criminal Trial No 58-15-92 High Court, Taiping (Abdul Malik JC).

The accused was charged with trafficking in 70,952.1g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the DDA'). At the close of the prosecution's case, the accused was acquitted and discharged without being called upon to enter his defence. The instant court had then found that the essential ingredient of the charge against the accused, ie that the plant material that was seized from the accused was cannabis as defined in s 2 of the DDA, had not been made out by the prosecution at the close of its case. The prosecution appealed and it was allowed by the Supreme Court, and the instant court was ordered to call upon the accused to enter his defence.

Held, finding the accused guilty as charged and passing the mandatory death sentence on him: (1) the new definition in s 2 of the DDA requiring the presence of cannabis resin 'irrespective of its quantity' should now be read to mean 'not just that the plant material contained some cannabis resin however minute, but that which is large enough to be used in a manner prohibited by the DDA'; (2) apart from the evidence of the government chemist, the court was, at the close of the prosecution's case, satisfied beyond a reasonable doubt that the circumstantial evidence adduced by the prosecution would have been strong enough to warrant the accused's conviction if it remained unrebutted; (3) in order to convict an accused on circumstantial evidence, it is desirable for the court to be guided by the best evidence rule. In the instant case, however, the production of the 'best evidence', ie fingerprint evidence, was not a strict requirement. In the particular context of the instant case, fingerprint evidence would only be essential if the circumstantial evidence against the accused was such that it gave rise to some doubt as to the accessibility of the offending items to persons other than the accused; (4) the principle enunciated in the case of Leong Bon Huat [1993] 3 MLJ 11 was inapplicable in the instant case as the government chemist had stated in evidence that the plant material he examined was all of the same type; (5) the test to apply is whether an accused's story is probable rather than whether it is possible. Even if an accused's cautioned statement is made immediately after his arrest, and the version in the statement is corroborated by the accused's oral testimony in court, the court will still have to consider whether the accused's story is probable; (6) although the material particulars of the accused's version in his statement appeared to be corroborated by his oral testimony in court, yet the versions were riddled with inconsistencies when compared, and marked by absurdities even when consistent; (7) the accused's story was highly incredible and wholly improbable. On the other hand, the prosecution had succeeded in building an absolutely overwhelming circumstantial case of exclusive possession, custody, control and knowledge against the accused. The accused had failed to disprove, on a balance of probabilities, the aforesaid presumptions that had been raised by the prosecution.

Public Prosecutor v Alcontara Criminal Trial No 47(58)-39-88 High Court, Pulau Pinang (Vincent Ng J).

A was charged with trafficking in cannabis. At the trial, X, the chemist, testified that he had analysed the exhibits and found them to be 'cannabis' as defined in the Dangerous Drugs Act 1952 ('the 1952 Act'). During cross-examination, X said that he carried out three tests to determine if the exhibits were 'cannabis'. The first test was a microscopic examination to determine the presence of systolic and granular hairs which were characteristic features of cannabis. X, however, agreed that the same hairs were also found in other plants. The second test was not a confirmative test but was merely a presumptive one. The third test confirmed the presence of cannabis resin. X agreed that the third test was very sensitive and could detect the presence of even one microgram of cannabis resin. X said that if the third test detected the presence of resin in the exhibits, the resin had not been extracted completely from the exhibits. X also agreed that if the resin had been extracted, there was a possibility that there might still remain an insignificant trace of resin. X was, however, unsure if the resin had been extracted at all from the exhibits and, if so, how much. The High Court convicted A of the charge. The court held that resin should be completely extracted from the exhibits before they cease to be 'cannabis' under the Act. A appealed to the Supreme Court.

Held, allowing the appeal: (1) 'cannabis' is defined in s 2 of the 1952 Act and since this definition is a component of a penal provision affecting personal liberty, it would have to be strictly construed in favour of such liberty; (2) non-extraction of resin from any part of the plant of the genus cannabis is an ingredient of the charge of trafficking in cannabis. The fairer interpretation of the definition of 'cannabis' ought to be that the resin should have been substantially extracted and not necessarily that the same should have been completely extracted, before the plant material ceases to amount to 'cannabis'; (3) to have detected the presence of resin by using the third test would not necessarily lead to proof beyond reasonable doubt that resin had not been extracted. In view of X's evidence, the benefit of doubt as to whether the resin had been so substantially extracted ought to be given to A. Accordingly, the prosecution had failed to prove beyond a reasonable doubt that the exhibits were 'cannabis' as defined in the 1952 Act; (4) in this case, A had challenged that the exhibits were not 'cannabis'. In view of A's objection to the elementary nature of the exhibits and X's evidence, the court would not exercise its discretion under s 114(e) of the Evidence Act 1950 ('the 1950 Act') to presume that X's official acts had been regularly performed; (5) the presumption under s 114(e) of the 1950 Act is a rebuttable and optional presumption based on the common experience of mankind. It is applicable having regard to the facts and especially the absence of objection from the party to whom such presumption could be detrimental; (6) where non-extraction of cannabis had not been raised, the fact that the exhibits were 'cannabis' is deemed to have been proved by the chemist's statement that the exhibits are 'cannabis' as defined in the 1952 Act.

Loo Keck Leong v Public Prosecutor [1992] 2 MLJ 177 Supreme Court, Malaysia (Abdul Hamid Omar LP, Peh Swee Chin and Edgar Joseph Jr SCJJ).

The appellant was arrested and convicted of trafficking in cannabis comprised in rolls of plant material in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The only issue before the court was whether the subject matter of the charge had been proved to be cannabis within the meaning of s 2 of the Act.

Held, dismissing the appeal: it was sufficiently proved that the subject matter of the charge was cannabis within the meaning of s 2 of the Act.

Roslim bin Harun v Public Prosecutor [1994] 2 MLJ 132 Supreme Court, Ipoh (Abdul Hamid Omar LP, Edgar Joseph Jr, Mohamed Dzaiddin SCJJ).

The accused was charged with trafficking in dangerous drugs contrary to s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The accused was ambushed at 3.05pm on 27 December 1991 by a police party at Taman Burung, Butterworth. The ambush party apprehended the accused after a short struggle and found a plastic bag hanging on the motorcycle which the accused was riding at the time of the ambush. Bundles of dried plant material were found in 80 plastic bags within the bag. On the accused's person was found a plastic bag containing a compressed block of dried plant material. The bags, together with their contents, were sent to a government chemist for analysis. The chemist found dried material in the 80 small plastic bags to contain 96.4g of cannabis as defined in the Act and the compressed block of plant material to contain 296.5g of cannabis as defined in the Act.

Held, amending the charge against the accused: (1) (c) the plant material or other substance concerned is cannabis as defined in s 2 of the Act; (2) the First Schedule is divided into parts for the sole reason that certain offences in the Act relate only to particular drugs comprised in particular parts but not the entire list of drugs comprised in the First Schedule. A trafficking offence is not limited to parts but extends to all drugs comprised in the First Schedule; (3) that the plant material was cannabis as defined in the Act could not be doubted. The chemist was a witness of fact and his conclusions that the plant material was of the genus cannabis and that none had undergone an extraction process must be accepted in the absence of any evidence to the contrary; (4) the Act defines cannabis as 'any part of any plant of the genus cannabis from which resin had not been extracted, by whatever name it may be designated'. The construction of that definition focuses on 'part of the plant É which resin had not been extracted' and carries the presumed words 'where resin is present and extractable' such that the 'part of the plant' devoid of resin for extraction or further extraction is not cannabis as defined in the Act. The statutory definition of cannabis emphasises the extraction of resin, which speaks eloquently of the legislature's intent that that part of the plant material where resin was not found is not cannabis as defined in the Act; (5) in the present case, the entire plant material was not chemically tested and the portion or percentage of plant material devoid of resin for extraction was not established. The tests carried out by the chemist confirmed the presence of resin in the sample and the visual examination confirmed the preponderance of resin in the bulk but not of resin in the entire plant material. As such, the weight of the total plant should not be equated with the weight of cannabis defined in the Act. There was an unknown factor of the weight of the harmless material; (6) in a cannabis trafficking offence, the prosecution must prove: (a) trafficking (under the activities listed in s 2), and in its absence, possession of cannabis of a weight sufficient to invoke the s 37(d) presumption; (b) that cannabis is listed in the First Schedule to the Act;in a trial involving a capital offence where the most extreme of penalties may be extracted, the prosecution must build its case on irreproachable evidence but questions arose in the present case with regard to the evidence of arrest as well as the recovery and handling of the two packets of drugs. Certain unanswered questions and the inadequate evidence of the chemist had rendered it unsafe and dangerous to call the defence on the trafficking charge. The court was, however, satisfied that the accused was in possession of the plant material and called the accused to enter his defence on the amended charge of possession of dangerous drugs.

Pendakwa Raya v Lee Boon Seng Criminal Case No 47-5-92 High Court, Penang (Jeffrey Tan J).

Choo Yoke Choy v Public Prosecutor [1992] 2 MLJ 632 Supreme Court, Malaysia (Harun Hashim, Mohamed Yusoff SCJJ and Anuar J).

See CRIMINAL LAW, Vol 4, para 206.

The police raided a house occupied by ten persons. Upon searching a room occupied by the appellant and his wife, the police recovered a plastic bag lying on the floor which contained 8.50g of heroin. The police subsequently questioned the appellant whereupon he answered that 'there were more drugs outside'. At the time the appellant gave the information, he had already been arrested. The appellant then led the police to the common kitchen where, inter alia, he took dangerous drugs from beneath the kitchen table. Initially, the appellant and his wife were jointly charged with trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The charge against the appellant's wife was, however, subsequently withdrawn. The High Court convicted the appellant and he appealed to the Supreme Court. The judge held that since the appellant had care and custody of the drugs, he was presumed to be in possession of the drugs under s 37(d) of the Act. The evidence showed that only the appellant and his wife occupied the room. The room was also not accessible to anyone else.

Held, allowing the appeal: (1) the judge failed to address his mind to the fact that the drugs were recovered from two different locations in the house. As a matter of prudence, evidence concerning the recovery of drugs in the appellant's room and the discovery of drugs in the common kitchen, ought to have been considered separately; (2) in respect of the recovery of drugs in the appellant's room, the prosecution must show either the appellant alone had possession of the drugs or he together with his wife had joint possession of the substance. In the case of joint possession, the prosecution has to prove that the appellant and his wife had a common intention; (3) the evidence was insufficient to establish that the appellant alone had sole custody or control of the drugs recovered in the room. The drugs were not hidden and there were two people occupying the room at the material time; (4) the fact that the prosecution had earlier charged both the appellant and his wife jointly gave rise to an inference that there was common intention. However, when the charge against the wife was withdrawn, there was no longer any evidence of common intention. Without evidence of common intention, the appellant alone could not be said to have had custody or control of the drugs in the room; (5) mere knowledge is not sufficient to constitute possession. Mere knowledge is only one of the ingredients of possession. Without evidence of custody and control, the presumption of possession under s 37(d) of the Act cannot arise; (6) in this case, the prosecution had failed to establish its case against the appellant in respect of the drugs found in the room; (7) the kitchen was accessible to all the occupants of the house. It was clear therefore that the appellant was not the only person who could have known of the existence of the drugs under the kitchen table; (8) the prosecution must establish not only that the appellant had knowledge of the existence of the drugs in the kitchen but that he had also exclusive custody or control of them; (9) the information given by the appellant was admissible under s 27 of the Evidence Act 1950. It was therefore imperative that the court considered with utmost care the nature of the information given by the appellant that led to the discovery of the drugs; (10) the appellant did not say that he had kept the drugs. Nor did he say that he had the drugs. His reply did not pin him down to anything incriminating beyond the fact that he knew of the existence of the drugs. Accordingly, it was not possible to say whether the appellant merely had knowledge of the drugs or that he had actually hidden the drugs in the kitchen. The appellant could have given the information merely to assist the police in recovering the drugs which actually belonged to someone else; (11) it was thus not safe to conclude that the appellant had either custody or control of the drugs. In the absence of evidence of custody or control, the presumption under s 37(d) of the Act did not arise. Accordingly, the prosecution had also failed to prove that the appellant had possession of the drugs recovered in the kitchen.

Choo Yoke Choy v Public Prosecutor [1992] 2 MLJ 632 Supreme Court, Malaysia (Harun Hashim, Mohamed Yusoff SCJJ and Anuar J).

The accused was charged with trafficking in heroin weighing 10,488.8g under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The charge was subsequently amended with the weight as 5890.2g. The accused had been arrested at a road block in front of the Nibong Tebal Police Station while driving in a Mercedes Benz. A search of the car found no incriminating articles but the removal of the carpet of the car uncovered four metal plates screwed onto the right and left running boards of the car with one metal plate positioned beneath each of the four doors. On removal of these plates, openings were found in the running boards where some of the heroin were recovered. The car was registered in the accused's wife's name. The prosecution presented evidence of the above without much challenge. However, the defence disputed the homogeneity of the samples used in the chemical analysis and argued that the openings were not specially constructed compartments within the meaning of s 37(h) of the Act. The prosecution had also sought to adduce evidence, inter alia, that the accused had given information that had led directly to discovery of the drugs under s 27 of the Evidence Act 1950 (Act 56).

Held, acquitting the accused: (1) and (f) the demeanour of the examiner and other persons of authority present. PW5 gave a summarised and not a detailed account and due to doubts as to the reliability of the information, it was not admitted; (2) the presumption under s 37(h) of the Act was applicable only to 22 out of the 40 packets of drugs recovered as they were from a specially constructed compartment in the vehicle and the other 18 packets had either been discovered in places in the car that did not attract the presumption or could not be shown clearly which part of the car they had been recovered from; (3) the homogeneity of the samples used in the chemical analysis was not in doubt on the facts as unlike in the Singapore case of PP v Ang Soon Huat [1991] 1 MLJ 1 cited by the defence, this was not a case bordering a lesser offence where the weight was highly crucial. Here, the weight involved was substantial and any conceivable error on the chemist's conclusions due to any less than perfect analytical method could not possibly affect his findings to such an extent as would have raised a reasonable doubt that the heroin was less than 15g. In drug related offences, the weight of drug content is an important and commanding issue but this importance is only whether the weight is more or less than the tariffs specified for lesser or higher offences. In offences attracting s 37(da) (which provides for a minimum weight), the need to prove the weight of the drugs to be exactly and precisely that weight stated in the charge is non-existent if it is proven beyond all reasonable doubt that the weight of the drug content in the drug exhibits on the facts is above 15g; (4) the evidence that the accused had menunjukkan (pointed out) the place of concealment could not be admitted under s 27 of the Evidence Act 1950 (Act 56). PW5 who had searched the car and recovered the drugs failed to give a detailed account of how this was done by the accused. His bare evidence of menunjukkan as to the preceding circumstances and events, exactly what had transpired during the search and recovery of the packets and the precise manner and the circumstances in which the information had been given was most unsatisfactory and failed to instill any confidence that s 27 was not conveniently taken advantage of. Information evidence under s 27 was admitted only on clear and unmistakable evidence that the accused gave the information that had led to the discovery of the fact as the use of the section was vulnerable to abuse. The evidence showed that the police had targeted the car at the road block. Yet when examining the car, the police questioned the accused incessantly for hiding places in the car exhibiting a conduct closer to the extraction of information than fair exhortation. There was real reservation as to the truthfulness and candour of PW5's evidence on the facts of the case. The manner in which the accused had shown where the drugs were, whether by words, action or both, was highly relevant as the accused was handcuffed yet all that was tendered was a bare menunjukkan. Viewed with the entire evidence on the discovery, the failure to caution the accused was not reassuring and it could only be deduced from the facts that the caution had been deliberately withheld to enhance the prospect of securing incriminating evidence. Although s 27 of the Evidence Act and s 37A of the Act were distinct and separate, the administration of an early caution would instill confidence that information evidence was fairly and properly obtained. Section 27 evidence was to be adduced with particular care for a detailed and complete disclosure of (a) all the surrounding circumstances; (b) the conduct of the accused; (c) the precise words of the questions and the response; (d) the exact words conveyed by the accused; (e) the manner the information was delivered;the prosecution had not, beyond merely alleging fabrication and stating that the evidence was unbelievable, countered the defence evidence that that one 'Ah Loon' had taken the car a few days before the arrest of the accused and that this person had requested the accused to drive the car to Kuala Lumpur. The defence had also raised evidence that the car had been used by others as the accused's wife had hired out the car to others in a car rental business. A belief or disbelief of the defence could not spring from impulse or fancy but had to be supported by reasons, cogent, legitimate and justifiable, from the evidence. There was thus unrebutted evidence of lack of exclusive control of the car as it was accessible to others and three witnesses had borne testimony as to this mysterious Ah Loon. The omission to examine and delve into the surrounding facts of the defence case by the prosecution meant that the defence witnesses' testimony was undiminished, untested, emerged consistent and integrated. The accused had succeeded in his defence in establishing, not by a doubt but by his unrebutted evidence, his non-exclusive use of the car. This presented a distinct and likely possibility that could not be ignored that the secret compartments were constructed and the drugs concealed by a third party with access to the car and without the accused's knowledge as the concealed compartments were neither visible nor detectable by visual inspection. The defence had raised more than a reasonable doubt though it had not necessarily rebutted the legal presumption under the Act.

Public Prosecutor v Ho Nee Fat Criminal Case No 47-12-91 High Court, Kuala Lumpur (Jeffrey Tan JC).

The two accused were jointly charged with trafficking of cannabis weighing 5426.9g under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The evidence led by the prosecution was that on the night of the arrest, the police had gone to a house in Johor Bahru to conduct a raid. The two accused, who were occupying the house, were arrested as they tried to escape via the back door when the police had knocked on the front door. The police searched the house and found the drugs in plastic bags at a prayer altar and in a bedroom at the front portion of the house. The defence objected to tendering the first accused's (D1) cautioned statement claiming, inter alia, (a) that it was obtained by oppression and was involuntary as he had been assaulted by the police; (b) that there had been a breach of rr 13 and 20 of the Lock-up Rules; (c) and that the caution under s 37A of the Act had not been explained to D1. At the trial-within-a-trial, the judge ruled that the statement was admissible as he was satisfied with the evidence of the prosecution that the accused had not been assaulted. He also found that there had been no oppression. Further, D1's evidence during the trial-within-a-trial showed that he had been unable to sleep in the lock-up due to fear rather than being prevented from sleeping and he did not give any evidence that he had not been given a blanket or a mattress, or that he was not given breakfast. He only stated that he could not sleep or eat. There was thus no evidence of oppression or breach of the lock-up rules. The fact that the caution under s 37A of the Act was not explained to him did not vitiate the admissibility of the statement as the facts showed that D1 had requested that he make his statement in Tamil and a police officer had helped to translate his statement. The fact that he volunteered to make the statement showed that he understood the caution and s 37A only requires that a caution be administered. D1 could have requested an explanation of the nature of the caution but evidence showed that he did not do so. The cautioned statement was admitted as the prosecution had discharged the burden of showing that the statement was voluntarily made. The statement was to the effect that D1 had bought the cannabis in Golok and had brought it back to the house the two accused were occupying. At the close of the prosecution's case, the defence contended that a prima facie case had not been made out against the two accused. In D1's case, inter alia, (a) the only evidence against him was his own cautioned statement; (b) the prosecution had failed to prove that the drugs seized were cannabis within the meaning of the Act; and (c) the prosecution had failed to show that D1 had exclusive possession of the house where the drugs were found and in D2's case, (a) the prosecution had failed to show that she had exclusive possession or control of the premises; (b) D1 in his cautioned statement had stated that D2 was unaware of and not involved with the drugs and this had the effect of discharging her; and (c) there was insufficient evidence in her case to prove the case against her beyond a reasonable doubt. The defence was called.

Held, convicting the two accused: (1) the statement of D1 that D2 was unaware of the drugs was only evidence with regard to D1 and not the co-accused, D2. The two accused were jointly charged and the fact that D1 stated that she was not involved did not mean that she should be discharged if there was other evidence of her involvement as the court had to consider the evidence against them separately. The court could accept part of D1's cautioned statement and reject the other part; (2) the chemist's evidence did not suffer from any infirmities and it was clear that the drugs were cannabis within the definition of s 2 of the Act. The fact that the chemist did not state that the cannabis was not 'Indian Hemp' as provided in Pt III of the First Schedule of the Act was not a fatal error. There was only one definition of 'cannabis' and the court refused to follow the unreported case of PP v Ahmad Rashdan bin Shamsher (Kedah Criminal Trial No 45-10-94), which appeared to suggest that there were two definitions of cannabis, one direct and the other indirect, and that the prosecution had to specify clearly which of the two definitions was being referred to in the chemist's report. It was sufficient if the chemist's report showed that the drugs were cannabis within the definition in s 2 of the Act without having to connect it to Pts I, II or III of the First Schedule. There was no merit in counsel for D1's argument that the chemist should have stated whether the drugs found were cannabis as defined in s 2 under the old definition or the amended definition which came into effect in September 1992 as the chemist had received the exhibits on 9 May 1992 and had made the test at this time. It was clear that the chemist meant the definition before the amendments; (3) it was clear from the facts that D1 had control and custody of the drugs and the statutory presumption in s 37(d) of the Act was brought into operation. The fact that D1 tried to escape was corroborative evidence as there was no reason why he should do so when the raiding party identified themselves as being the police when they knocked on the door; (4) the evidence showed that the two accused were the only ones in the house and that the room in the front portion of the house was D2's. As D2 was the occupant, the statutory presumption in s 37(b) was applicable. D2 had control and custody of the drugs. Some of the drugs were found in a box that contained her personal belongings and the drugs found at the prayer altar were also under her control. Further evidence of D2's complicity was the fact she tried to escape with D1 when the raiding party came knocking. A witness also testified that D1 was seen giving instructions to someone in the house to escape, and that D1 and D2 had tried to get away together, both trying to leave simultaneously. The two accused, in their defence, had failed to cast a doubt on the prosecution's case and failed to displace the statutory presumptions that arose against them.

Pendakwa Raya v Kunasagarn a/l P Muthu & Anor Criminal Trial No 45-9-93 High Court, Johor Bahru (Mohd Ghazali JC).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

The accused was charged with trafficking in 16.77g of heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234). The evidence was that the accused and W were riding on a motor cycle when they were stopped by a police patrol. When asked for his identity card, W ran away. The accused, however, parked the motor cycle and then threw a package (later found to contain heroin) from the motor cycle. Because the prosecution evidence was unequivocal as to where the accused had taken the package from, the Deputy Public Prosecutor sought to admit the accused's cautioned statement. While a part of the cautioned statement clearly showed the accused admitting to the throwing of the package, another part contained an exculpatory portion which showed that the package was given to him by W and he was told to keep it. The accused did so, not realizing that it contained drugs.

Held, acquitting the accused: (1) the cautioned statement of the accused showed that the accused said the drugs belonged to W who ran away. W had given him the package and told him to keep it when W lifted the seat of the motor cycle and handed the package to him. Clearly, it would have been easier for the accused to run away as he was riding pillion but instead, he parked the motor cycle and acted normally all the way through until he threw the package away after realizing he had a package in his pocket and believing it contained drugs. His behaviour prior to his throwing away the package was consistent with his innocence; (2) the accused's cautioned statement and the evidence negatived the presumption under s 37(d) that he knew the nature of the thing under his control to be drugs.

Public Prosecutor v Mohd Nadzir bin Mohd Noor [1988] 3 MLJ 238 High Court, Kuala Lumpur (KC Vohrah J).

In this case, the accused was charged with trafficking in dangerous drugs. The evidence showed that the accused agreed to sell the dangerous drugs to a prosecution witness, who acted as agent provocateur. A trap was laid and the accused was arrested.

Held: (1) in this case, the prosecution had, on the evidence as a whole, both oral and otherwise, established the charge of trafficking in dangerous drugs against the accused beyond all reasonable doubt, even without the aid of the presumptions contained in s 37 of the Dangerous Drugs Act 1952 (Act 234). With the aid of the presumptions, the case for the prosecution was overwhelming; (2) there were no extenuating circumstances of any kind to justify the court showing mercy and the accused was sentenced to death.

Public Prosecutor v Neoh Wan Kee [1985] 1 MLJ 368 High Court, Penang (Edgar Joseph Jr J).

[Annotation: The appeal against the above decision in Federal Court Criminal Appeal No 25 of 1984 was dismissed and the sentence was confirmed.]

Krishnan v Public Prosecutor [1987] 1 MLJ 292 Supreme Court, Kuala Lumpur (Wan Suleiman, Seah and Wan Hamzah SCJJ).

See CRIMINAL LAW, Vol 4, para 37.

The appellant appealed against his conviction for trafficking in dangerous drugs. The only evidence of trafficking was in the cautioned statement, which it appeared was recorded by the investigating officer. The cautioned statement was missing and did not form part of the appeal record.

Held: (1) in the circumstances, as the cautioned statement was recorded by the investigating officer who was actively involved in the investigation, the learned President should have, as a matter of law and fact, as held that the cautioned statement was inadmissible in evidence as it might result in miscarriage of justice; (2) in any event, the cautioned statement did not form part of the appeal record and on the recorded evidence in the appeal record, there was therefore only evidence to prove that the appellant was guilty of an offence of possession of dangerous drugs; (3) the conviction of the appellant for trafficking in dangerous drugs would be quashed and a conviction of the offence of possession of dangerous drugs substituted, and the appellant sentenced to three years' imprisonment and six strokes of whipping.

Lee Look v Public Prosecutor [1985] 1 MLJ 240 High Court, Kuala Lumpur (Gunn Chit Tuan J).

The accused was charged with the offence of trafficking in 274.04g of cannibis, an offence punishable by death under s 39B of the Dangerous Drugs Act 1952 ('the Act'). Acting on information received, the Cawangam Anti Dada ('CAD') decided to lay an ambush to arrest a suspected drug trafficker operating at the Ipoh Turf Club area. The accused entered the Turf Club area on his motorcycle with a white laundry bag laid on top of the petrol tank of the motorcycle between his legs. He made a U-turn and proceeded to leave the parking area of the Turf Club. As soon as he rode past the gate, one of the officers came out of his ambush position, raised his hands gesturing the accused to stop and shouted 'Polis!' The accused ignored him and attempted to escape by increasing speed. The officer then gave a pre-arranged signal, at which another officer emerged from the right, colliding into the centre portion of the accused's motorcycle and causing him to fall over. The laundry bag was retrieved by the officers. The top of the bag was filled with five pieces of men's clothing. Below the clothing was a white plastic bag containing plant materials which the officers suspected to be cannibis. The accused was arrested and brought back to the office of the CAD. The plant materials were later confirmed by a government chemist to be cannibis with a total weight of 274.04g after the analysis. The accused did not deny that the laundry bag was with him at the time of interception at the Turf Club. He claimed that the bag containing the cannibis was given to him by Ramly, one of his housemates as he was leaving his house to go to his father's house which was situated in the compound of the Turf Club to launder his clothes. Ramly wanted the bag delivered to one Suresh who worked at the Turf Club. As he was going the same way, he obliged. He put the bag in his laundry bag and his clothes on top of it. Not finding Suresh at the store of the Club, he made a U-turn and was proceeding out when he was ambushed.

Held, convicting the accused and sentencing him to 15 years' imprisonment and 12 strokes: (1) as it was clear that the accused was in control and custody of the laundry bag, the presumption under s 37(d) of the Act was invoked, ie that until the contrary is proved, the accused was presumed to be in possession and had know-ledge of the cannibis which was contained in the laundry bag; (2) the attempt of the accused to escape after the officer had raised his hands to stop him betrayed his sense of guilt as there was no other reason for him to attempt to speed off after the officer had identified himself; (3) the fact that the drugs were found at the bottom of the laundry bag was inconsistent with the evidence of the accused having received it on his way out as he would have had to remove five pieces of clothing before reaching the bag; (4) where the prosecution invokes a statutory presumption to prove its case, a mere denial by the defence made orally or by implication from the evidence contrapositive to the presumed fact must be regarded as a refutation of the presumption by the defence. The judge is then under a duty to re-examine the factual dispute, however trivial, affecting the presumed fact and come to a definite conclusion on the balance of probabilities; (5) as the prosecution did not produce any evidence of how, where and from whom the cannibis was produced, the substance required of the accused to rebut the presumption was therefore very minimal. On the facts, the accused's evidence that he was sending his clothes to his father's house to be washed was not improbable as articles of clothing were found in the laundry bag. The accused's story was further strengthened by the fact that his father's house was situated in the Turf Club. The accused had thus succeeded in rebutting the presumption of trafficking.

Public Prosecutor v Hassin bin Jonet Criminal Trial No 58-5-1992 High Court, Ipoh (Kang Hwee Gee J).

Both the accused were charged with the offence of jointly and in furtherance of a common intention of trafficking in 120.8g of heroin under s 39B of the Dangerous Drugs Act 1952 ('the Act') at an open area in a Chinese cemetery in Pusing, Perak, on 1 September 1993 at about 9.30pm. They were arrested in an operation staged by the police which involved the use of an informer and two agent provocateurs, who posed as traffickers wanting to buy the drugs from them. The main witnesses for the prosecution were Detective Police Constable Mak ('DPC Mak') and Detective Lance Corporal Cheah ('DLC Cheah'), the two agent provocateurs, and Chief Insp Zorki, who had lodged the police report against the accused and who was also a member of the ambush team who was hiding in the bush at the cemetery. The informer was not called to give evidence, neither was he produced in court. The versions of facts given by the accused were different from each other and from the prosecution. The defence challenged the credibility of the main prosecution witnesses, inter alia, on the grounds that: (a) in the cross-examination, DPC Mak had omitted to say some facts that he had mentioned in the examination-in-chief; (b) DPC Mak had coached DLC Cheah in giving his evidence, as they were seen having lunch together during court adjournment; and (c) the prosecution's evidence with regard to the events occurring at the cemetery had been embellished, as Chief Insp Zorki had omitted certain details of the event in his police report.

Held, finding both the accused guilty and passing the mandatory death sentence under s 39B(2) of the Act: (1) it was clear that counsel for the defence could not mount impeachment proceedings against DPC Mak, as all the alleged inconsistent statements were made in the course of the trial. Any variations or inconsistencies that may arise in his evidence, whether against his own evidence or against the evidence of another witness would have to be assessed accordingly by the court as they were clearly outside the scope of s 155(d) of the Evidence Act 1950, which is concerned only with inconsistencies of 'former statements'; (2) in respect of the challenge made by the defence counsel that DPC Mak and DLC Cheah, ie the two agent provocateurs, had discussed the case and that the former had coached the latter, the court felt that it was undesirable that witnesses appearing in court should be seen together during court adjournments in a manner that could cast suspicions that they might be collaborating to give evidence against an accused. Such an event certainly constituted a factual relevancy which must be considered in assessing the credibility of the two witnesses. However, on the facts, there was no reason why the credibility of DPC Mak should be affected because he had already finished giving his evidence when he went out for lunch with DLC Cheah. As to DLC Cheah, there was no reason to disbelieve his evidence concerning the event occuring at the place of arrest, as it was amply corroborated by the evidence of Chief Insp Zorki. Therefore, the application to impeach their credibility was not allowed; (3) the provision of s 107 of the Criminal Procedure Code (FMS Cap 6) which relates to the giving of information to an officer in charge of a police station regarding the commission of a crime did not specify the details that must be included in the report. If an informant fails to include material particulars in his report which he was expected to do so, his inclusions of these particulars later in his testimony may be embellishments. Thus, it would be imprudent to draw any support from the police report for the purpose of testing the consistency of the testimonies of the witnesses for the prosecution in this case; (4) to sustain a charge of trafficking, it would be sufficient for the prosecution to prove that both the accused were involved with the common intention of doing of any of the acts mentioned in s 2 of the Act. It was clear from the evidence, that the prosecution had proven beyond reasonable doubt, that both the accused were acting in concert to sell and deliver heroin to the agent provocateurs. In addition, as the bag containing the drug had been in their custody or control preceding their arrest, they must be deemed to be in possession of the heroin contained therein under s 37(d) of the Act and since its weight was in excess of 15g, they must be deemed, until the contrary was proved, to be trafficking in the drug under s 37(da)(i); (5) the evidence of the respective accused was fraught with inexplicable inconsistencies and improbabilities. In totality, the court was convinced that both the accused were not telling the truth. They have failed to rebut both the presumptions of possession under s 37(d) of the Act, and trafficking under s 37(da)(i) and had, therefore, failed to raise a reasonable doubt on the prosecution's case; (6) (obiter) the identity of an informer, whose only function was to accompany and introduce an agent provocateur to a drug trafficker is protected from disclosure under s 40 of the Act, as opposed to the position of an informer who not only introduced, but was present on more than one occasion in subsequent negotiations for the sale of drugs and at the time of the trafficker's arrest. The informer in the present case came under the former category. He was thus protected by s 40, and need not be called to give evidence.

Public Prosecutor v Chong Nyuk Min & Anor [1995] 3 MLJ 642 High Court, Ipoh (Kang Hwee Gee J).

The accused was charged for trafficking in heroin weighing 155g under s 39B of the Dangerous Drugs Act 1952 ('the Act'). The accused was arrested in an operation involving the use of an informer and a police agent provocateur, PC Lim, who disguised himself with the informer as a group interested in purchasing some drugs from the accused. The informer had brought the accused in the former's car and introduced the latter to PC Lim. In the discussion to purchase the drugs, the informer had played the main role and had promised to purchase drugs from the accused and obtained the telephone and pager numbers of the accused. The next day, PC Lim contacted the accused through his pager and placed an order for one pound of heroin with the price of heroin as fixed in the earlier discussion. The drugs were accordingly delivered. A few days later, on 29 March 1991, PC Lim further placed another order for five pounds of heroin. The accused met PC Lim on the day and at the place agreed for delivery, and showed to PC Lim a white plastic bag alleged to have contained the drugs. The accused later drove PC Lim as his passenger to the premises of a hotel to collect payment for the drugs. The accused was arrested when PC Lim got out of the car and gave the signal to arrest the accused. The accused attempted to escape by driving off but was subsequently arrested. The chemist certified that the drugs were heroin as defined under s 2 of the Act. At the end of the prosecution case, the court held that the prosecution failed to prove a case under s 39B but managed to prove a case of possession against the accused under s 39A. The charge was subsequently changed to a charge under s 39A of the Act. The informer was not called to give evidence at the trial. The accused urged the court to reject all the evidence tendered by the prosecution witnesses including evidence that showed that the accused had custody and control of the drugs which was found in the car driven by the accused when he was arrested. The accused chose to remain silent when asked to decide the method of defending himself.

Held, convicting the accused on the amended charge: (1) the line which differentiates an informer from an agent provocateur depends on the degree of involvement of the person in the operation which was carried out. It was clear from the facts that the person who was treated by the prosecution as an informer was actually an agent provocateur. The failure of the prosecution to call the informer as a witness had jeopardized its case and had attracted the presumption of adverse inference under s 114, illustration (g) of the Evidence Act (Act 56) that the evidence of the informer would not have supported the case of the prosecution. Without the evidence of the informer, the court would have to reject the evidence of PC Lim that implicated the accused with the trafficking of drugs. Therefore, the prosecution failed to prove beyond a reasonable doubt that the accused had trafficked in the drugs; (2) the application of 'adverse inference' does not mean that all the evidence of the prosecution must be destroyed. Only evidence which is expected to cause damage to the prosecution case if that important witness is called should be rejected. Where the prosecution brings in evidence which can stand on its own without having to depend on the evidence which is expected to cause damage to the defence case, such evidence can be accepted. In this case, the evidence of the prosecution that involved the accused with custody and control of the drugs was a separate event from the involvement of the informer who was not called as a witness. In order to convict the accused with the custody and control of the drugs, the absence of the informer in giving evidence would not affect the prosecution case. Therefore, from the facts, the prosecution had proved that the custody and control of the drugs was with the accused. The presumption under s 37 of the Act would apply in this case with the consequence that the accused shall be presumed to have possessed the drugs and have knowledge that the contents of the plastic bag was heroin until the presumption was rebutted. The presumption under s 37(da)(i) that the accused would be presumed to be a drug trafficker if the weight of the drugs in his possession exceed 15g had been rebutted by the prosecution case without the defence giving evidence, based on the doubt which arose from the adverse inference against the prosecution case. The accused was sentenced to imprisonment of 15 years and whipping of 12 strokes on a charge of possession of heroin.

Pendakwa Raya v Lee Chee Chong Perak Criminal Trial No 58-3-92 High Court, Ipoh (Kang Hwee Gee J).

The accused was charged with trafficking in 815.22g of cannabis. On 12 February 1985, the police laid a trap for the accused. He was observed talking with a police officer at Kampong Likas. The accused then left the police officer and returned a while later with a yellow packet. At this point, the accused was set upon by the ambush party and arrested. The yellow package was seized and kept in the custody of a police officer until it was handed to the government chemist for testing. The dried vegetable substance in the package was tested and found to contain 815.22g of cannabis. The accused gave evidence that he was framed by the police. He told the court that on the day in question he was asked by one Yusri to carry the yellow package to the appointed place. The accused had refused to carry it at which point the package was thrown out of the car driven by Yusri. The said car was then driven off and the accused was set upon by the police officers. The accused suggested that there had been a break in the chain of custody of the drugs and that an adverse inference should be dawn from the failure of the police to call Yusri as a witness.

Held, convicting the accused as charged: (1) the package was intact and was identified by the government chemist who recognized the seals and laboratory numbers. The other police personnel also identified the package. The evidence clearly showed that there were no missing links or any serious gaps in the chain of evidence or of possession and control of the exhibits; (2) it was in the accused's interest to summon Yusri as, if his evidence was to be believed, it was Yusri who had held the yellow package. Yusri was more a defence witness; (3) the evidence clearly established that the accused was at the scene of the crime and that he held the yellow package which on examination was found to contain cannabis. The accused's version that it was Yusri who enticed him to the scene was not material at best and not to be believed; (4) under s 37(da) of the Dangerous Drugs Act 1952, once the accused was in possession of the cannabis, the presumption of trafficking would come into play. The accused was deemed to have known the nature of the drug; (5) the accused was sentenced to death.

Public Prosecutor v Gan Masilimin [1992] 4 CLJ 1896 High Court, Kota Kinabalu (Syed Ahmad Idid J).

The accused and one Bairulia were detained by the police following an ambush. When ambushed, the accused was observed to have thrown a white plastic bag. The bag was recovered and 'dried vegetable leaves' were found within. The leaves were sent for analysis and found to be cannabis, the weight of which was 714.5g. The accused was charged with trafficking. The accused gave evidence that he had no knowledge of the plastic bag. He claimed that the police had lied that he had carried the plastic bag.

Held, convicting the accused: (1) the evidence was clear that the accused was carrying the drugs. He was therefore in possession of the drugs; (2) as the amount of cannabis exceeded 200g, the presumption that he trafficked came into play by virtue of s 37(da) of the Dangerous Drugs Act 1952; (3) the accused had not rebutted the presumption. He did not even offer any plausible excuse or reason to be in the area and at the scene where the crime was committed.

Public Prosecutor v Rudy bin Jamlali [1992] 3 CLJ 1628 High Court, Kota Kinabalu (Syed Ahmad Idid JC).

The accused was arrested on 7 August 1986 in the possession of a brown coloured bag. When the bag was searched, it was found to contain some clothes and dried leaves wrapped in newspaper. The leaves were examined and found to be cannabis. Upon further testing, the quantity of cannabis was ascertained by the government chemist to be 628.65g. The accused was charged with trafficking. In his defence, the accused claimed that on the day of the arrest he was given the bag by one 'Abu' who asked him to take it to a person named Ban Soon. Neither of these persons were called. The accused claimed that he had no knowledge of the contents of the bag.

Held, convicting the accused: (1) the court was unable to believe the explanation given by the accused. He must know that carrying a bag to be given to a mystery or unknown person was something which offended the susceptibility of the mind and was alien to our way of life which was openness; (2) at best if the other person or purported recipient was named or identified, then, there would have been something to hinge his story on. As it was, it was concoction; (3) even if his story was credited with some truth, under the law he was in possession of the drugs 'on behalf of X or Abu'. This still could not excuse him.

Public Prosecutor v Roger bin Anang Criminal Trial No 36 of 1987 High Court, Labuan (Syed Ahmad Idid J).

In this case, the applicant had been charged on 7 October 1982 in the sessions court at George Town, Penang, with an offence under s 39B of the Dangerous Drugs Act 1952 (Act 234). On 25 April 1983, the Public Prosecutor's sanction was tendered and the court proceeded to fix the date of hearing. Subsequently, the prosecution tendered the Public Prosecutor's requisition under s 41(a) of the Act with a view to having the case tried by the High Court. However, the learned President of the Sessions Court refused to transmit the case to the High Court, being of the view that the applicant had acquired a vested right to be tried in the sessions court once the Public Prosecutor had indicated his election to have the trial held in that court by tendering his consent to prosecute. The Public Prosecutor appealed to the High Court. The learned trial judge stayed the proceedings and referred the following question to the Supreme Court: 'Whether for the purposes of art 7(1) of the Federal Constitution, an accused person derives a vested right when (a) he is charged or (b) after his trial has commenced.'

Held: (1) pending cases could still be tried in the sessions court unless the Public Prosecutor chooses to have them tried in the High Court by the issue of a requisition under s 41(2); (2) the Public Prosecutor's requisition is valid only in respect of cases of which trials have not yet begun. If trials have already commenced in the sessions court, his requisition is invalid and the court therefore should continue to try them. The trial is said to have commenced when evidence has begun to be adduced; (3) if pending cases have been transmitted to the High Court pursuant to the Public Prosecutor's requisition, it is not open to the High Court to remit them to the courts below by invoking s 417, Criminal Procedure Code, or any other written law. Subsection (3) of s 41 of the Dangerous Drugs Act, which gives effect to the Public Prosecutor's requisition, should prevail, this being a special law; (4) the transmission of pending cases to the High Court is not in violation of art 7(1) of the Constitution, as the punishment for which the accused is liable remains the same as it was before the amendments. The death penalty is not mandatory for such cases, only discretionary.

Savrimuthu v Public Prosecutor [1987] 2 MLJ 173 Supreme Court, Kuala Lumpur (Salleh Abas LP, Abdul Hamid CJ (Malaya).

Both the accused in this case had been charged with trafficking in a dangerous drug, ie 234g of cannabis, in the sessions court on 12 December 1982. At that point of time, the said offence did not carry the mandatory death penalty. The amendment to the Dangerous Drugs Act 1952 (Act 234) making mandatory the death penalty upon conviction came into effect on 15 April 1983. The issue before the present court was whether the amendments to ss 39B, 41 and 41A of the Dangerous Drugs Act 1952 had the effect of taking away the jurisdiction of the sessions court even with regard to cases pending trial before the latter prior to the coming into force of the amendments.

Held: (1) both the accused had a vested right and not a procedural right for their case to be continued in the sessions court; (2) despite the requisition of the Public Prosecutor, since the case had been partially heard in the sessions court, the order of transmission to the High Court was illegal, void and of no effect, and the case should continue in the sessions court.

Public Prosecutor v Muda bin Mohamed & Anor [1987] 2 MLJ 259 High Court, Kota Bahru (Abdul Malek J).

In this case, the respondent was originally charged for trafficking in dangerous drugs and the case was fixed for hearing before the sessions court. In the meantime, the Dangerous Drugs Act 1952 (Act 234) ('the Act') was amended to abolish the sentence of life imprisonment for trafficking under s 39B of the Dangerous Drugs Act. The Public Prosecutor thereupon made a requisition under s 41A of the Act for the case to be tried in the High Court. The case was then transferred to the High Court. Counsel for the respondent made an oral application for the case to be sent down to the sessions court and the learned judge of the High Court made an order accordingly. The Public Prosecutor appealed.

Held: (1) the learned judge in this case had erred in law in that he had no power to transfer the case from the High Court down to the sessions court for trial; (2) as long as the case was still before a subordinate court and the trial had not yet commenced, the Public Prosecutor, by virtue of the power vested in him under s 41A of the Act, and also under art 145(3) of the Federal Constitution, may choose the forum for trial; (3) in this case, the Public Prosecutor had made a requisition under s 41A of the Act for the case to be transferred from the sessions court to the High Court, and therefore the order of the learned judge must be set aside and the case remitted to the High Court for trial.

Public Prosecutor v Cheah Cheng Eng [1986] 2 MLJ 39 Supreme Court, Penang (Abdul Hamid CJ (Malaya).

The accused was charged with the offence of trafficking in dangerous drugs, an offence under s 39B of the Dangerous Drugs Act 1952 (Cap 234) ('the Act') and punishable with death. The weight of the drugs stated in the charge was the gross weight. The accused applied for bail pending the disposal of his case. Counsel for the accused relied on Ho Chuan Chong v Public Prosecutor [1980] 2 MLJ 289 and argued that bail should be granted. The main argument of counsel was that the net weight of the drugs might well be below the requirements of the charge and therefore the accused was not caught under the restriction relating to bail in s 41B of the Act.

Held, dismissing the application: (1) this case did not essentially turn on the weight of the heroin specified in the charge. The crucial question was what is the offence the accused is charged with; (2) since the offence he has been charged with under the Act is punishable with death, then it falls within the provisions of s 41B(a) of the Act that bail shall not be granted to an accused person charged with an offence under the Act where the offence is punishable with death; (3) that the net amount of the dangerous drug is specified in a charge for trafficking does not mean that if an accused is convicted for an offence of trafficking in that drug, he would not be sentenced to death if the amount of the dangerous drug involved in the trafficking is less then the amount specified in paras (i), (ii), (iii) or (iv) of s 37(da), assuming he was in possession of the drug. These paragraphs merely raise presumptions of trafficking in the relevant drug, and the prosecution may rely on the relevant provision, if the accused is found in possession of the drug, to raise a case of trafficking in that drug until the contrary is proved by the accused; (4) the reliance by counsel for the accused on the case of Ho Huan Chong and on art 5 of the Federal Constitution was misconceived.

Leong Siew Hoong v Public Prosecutor [1988] 1 MLJ 396 High Court, Kuala Lumpur (KC Vohrah J).

Public Prosecutor v Rosyatimah bte Neza & Anor [1989] 1 MLJ 360 High Court, Ipoh (Peh Swee Chin J).

See CRIMINAL LAW, Vol 4, para 35.

In this case, the appellant had been charged with two charges, the first of trafficking in a dangerous drug, to wit cannabis, and the second of cultivating cannabis plants. After the evidence of the investigating officer was given in relation to both the charges, the learned Deputy Public Prosecutor applied to have the second charge stayed. The proceedings then continued on the first charge only in which the appellant was subsequently found guilty and convicted. The appellant appealed. On the appeal it was argued that the evidence of the cultivation of ganja was wrongly admitted in relation to the first charge. Such evidence was inadmissible, irrelevant and prejudicial and this occasioned a miscarriage of justice. It also appeared that the statement of the accused, not under caution, was wrongly admitted in evidence and that the statement contained evidence which was not admissible under s 27 of the Evidence Act 1950 (Act 56).

Held: (1) in this case, not only was evidence of crucial admissions to the investigating officer by the appellant pertinent to the charge which was stayed, introduced and admitted in evidence, but admissions relating to the offence therein alleged were allowed to remain in the cautioned statement made by the appellant which the learned trial judge admitted in evidence; (2) the statement of the accused to the investigation officer was wrongly admitted in evidence as the accused had then been arrested and no caution had been administered to him; (3) the statement contained evidence not admissible under s 27 of the Evidence Act, as it included more than information which distinctly relates to the facts discovered.

Krishnan v Public Prosecutor [1987] 1 MLJ 292 Supreme Court, Kuala Lumpur (Wan Suleiman, Seah and Wan Hamzah SCJJ).

A was convicted of trafficking in heroin. He appealed on the ground that it had not been proven beyond reasonable doubt that the 2.050kg of substance imported contained heroin to a greater extent than de minimis. At A's trial, the prosecution had called an expert who testified that the substance in question contained roughly 50% of heroin. The defence called an expert who deposed that the substance included a number of ingredients, including heroin, of which heroin was the most minor quantitatively.

Held, dismissing the appeal on the above ground: heroin remained heroin, notwithstanding that it was mixed with other substances. A was therefore rightly convicted of importing.

Francis v R Privy Council Appeal No 7 of 1990 Privy Council Appeal from Mauritius (Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Oliver of Alymerton, Lord Jauncey of Tullichettle and Lord Lowry).

The accused was charged with trafficking in dangerous drugs on his own behalf, to wit, 19,364g of raw opium and 8,093g of morphine at an unnumbered house at Kampong Tengah, Mukim Keplu, Kedah, on 11 October 1976. At the close of the case for the prosecution, the learned trial judge amended the charge to two charges, viz, for trafficking in the amount of morphine and for being in possession of the same amount of raw opium under s 12(2) and punishable under s 12(3) of the Dangerous Drugs Ordinance 1952 ('the Ordinance'). The facts revealed were as follows. On the day in question, at 7.00am on information received, Superintendent of Customs (PW3) accompanied by Senior Customs Officer (PW4) and other customs officers raided the accused's house. There was a car parked under the house and with the keys obtained from the accused, PW4 unlocked the front door of the car and commenced to make a search. He found two sacks containing blocks of morphine (a dangerous drug under Pt III, First Schedule of the ordinance as proven by the evidence of the government chemist) under the bonnet of the car. They were placed on either side of the engine compartment. On being questioned by PW3 as to the contents of the two sacks, the accused replied 'morphin sembilan ketul semuanya'. PW3 noticed that the accused looked frightened. The accused then pointed to a spot 15ft away from the car where another sack was lying among other goods. When PW3 asked as to the contents of the sack, the accused replied 'chandu sebelas ketul'. This was subsequently proven by the government chemist to be raw opium, a dangerous drug under Pt I, First Schedule of the Ordinance. The defence was a denial of the alleged admissions but not of the discovery of the drugs at the places stated, and the amount and nature thereof. An objection was also raised by the defence regarding the admissibility of the accused's admissions having regard to the words 'after his arrest' appearing in s 37A(1) of the ordinance. The court was also faced with the question as to whether the words 'anything whatsoever containing any dangerous drug' refer to the motor car. If so, the presumption that the accused was in possession and knew the nature of such drug arose thereby requiring the defence to prove to the contrary on the balance of probabilities.

Held: (1) the words 'after his arrest' appearing in s 37A(1) of the Ordinance mean after actual arrest and not constructive arrest. It was therefore unnecessary for PW3, a senior customs officer, to administer the statutory caution as required under the same subsection to the accused. The accused's admissions were therefore admissible; (2) in the present case, the motor car in question was not the container that contained the morphine but the two sacks which were used to keep the blocks together were the containers. The presumption under s 37(d) therefore did not apply; (3) the facts in issue clearly showed that the accused did an act preparatory to or for the purpose of trafficking in morphine. He also had knowledge and was in conscious possession of the opium found on the floor of his house; (4) in the light of the circumstances, the defence had not raised any reasonable doubt to the prosecution case. The accused was guilty on both charges and should be convicted; as he was most probably a carrier of drugs, the sentence of life imprisonment with effect from the date of arrest was justifiable and a deterrent.

Public Prosecutor v Salleh bin Saad [1983] 2 MLJ 164 High Court, Alor Setar (Syed Agil Barakbah J).

This was an appeal against the decision of the learned President of the Sessions Court whereby he had acquitted and discharged the respondent on 15 September 1976 without calling for the defence on a charge of being in possession of a dangerous drug under s 12(2) of the Dangerous Drugs Ordinance 1952. On 15 March 1976, the respondent was found in possession of 1.25g of light brown powder which on analysis by the chemist was found to contain 0.47g of heroin and this was the amount of heroin stated in the charge. In his report, the chemist had stated that he had analysed the 1.25g of the light brown powder which had been sent to him by the police and had found it to contain 0.47g of heroin. The learned President held that the failure to state in the chemist's report that the contents were heroin within the meaning of the Dangerous Drugs Ordinance was fatal.

Held, allowing the prosecution's appeal: (1) heroin is not technically defined in the Dangerous Drugs Ordinance, nor is it in the Dangerous Drugs Act 1952 (Revised 1980). Therefore in the absence of any technical definition of heroin in the Dangerous Drugs Ordinance, the chemist report stating that it came within the definition of heroin under the Dangerous Drugs Ordinance was not fatal but was sufficient for the purpose of proving that the light brown powder found in the possession of the respondent contained a dangerous drug, namely, heroin to the extent of 0.47g; (2) a prima facie case had been made out for the defence to be called. The order of acquittal and discharge should be set aside.

Public Prosecutor v Ong Tee [1983] 2 MLJ 407 High Court, Seremban (Ajaib Singh J).

The accused was charged with possession of '0.10g of light brown powder containing heroin the amount cannot be determined due to insufficient sample', and had thereby committed an offence under s 12(2) of the Dangerous Drugs Ordinance 1952. The first prosecution witness, the chemist, said that there was some heroin in the powder but he could not determine the quantity because of insufficient sample. At this stage, the learned President discharged the accused under s 173(g) of the Criminal Procedure Code on the ground that the charge was groundless.

Held: the learned President was in error when he discharged the accused without hearing all the witnesses for the prosecution. On the evidence of the chemist, there was sufficient evidence to show that there was heroin in the light brown powder the possession of which constituted an offence under s 12(2) of the Dangerous Drugs Ordinance 1952.