(1) (delivering the judgment of the court): This appeal raises a short point. A point already traversed by high authority. It concerns the joint operation of s 37(d) and (da) of the Dangerous Drugs Act 1952 (‘the Act’).

(2) The facts are simple enough. As long ago as 1 May 1994, at about 12.20pm, the appellant was stopped at a roadblock at Nibong, Kampung Bendang Pak Yong, Kelantan. The appellant was riding a motorcycle. PW4, who was at the roadblock, having stopped the appellant, escorted him to a wakaf, a place of rest for travellers. The appellant was searched. He was wearing a jacket zipped all the way up to the collar. He was asked to remove it. A body search by PW4 resulted in the recovery of a packet containing a white substance which on subsequent chemical examination was found to be heroin weighing 81.58g. The appellant was charged for an offence under s 39B of the Act. He was convicted on that charge and the mandatory death sentence was passed on him. He now appeals.

(3) The only ground advanced on his behalf by his counsel, Mr Karpal Singh, is that the learned judge wrongly found the appellant to be in possession of the drugs, by merely acting on the presumptions under s 37(d) and (da) of the Act. In other words, the learned trial judge first found the appellant to have had custody and control of the drug in question. He accordingly, in terms of s 37(d) of the Act, presumed that the appellant was in possession. Thereafter, the learned trial judge moved to s 37(da) of the Act. Having found the appellant to be in possession, through the process of reasoning we have just described, the learned judge held the appellant to be a presumed trafficker since he was ‘found in possession’ of more than the statutory minimum weight prescribed in that subsection. Counsel says this is a very significant point. It had persuaded the judge to find against the appellant as he mentions this twice in his judgment. Counsel complains that there was no specific finding by the learned judge at the close of the prosecution’s case in the terms required by s 37(da) of the Act. Put in a different fashion, the learned judge first must have held as a fact based on the evidence before him, that the appellant indeed was ‘found in possession’ of the drug. A careful reading of the judgment, counsel argues, shows that there was indeed no such finding made after the learned judge considered the evidence as it stood at the close of prosecution’s case. This, counsel says, is a serious misdirection warranting the setting aside of the conviction under s 39B and the substitution of a conviction for an offence under s 12(2) read with s 39A(2) of the Act.

(4) In support of his argument, counsel has referred us to the judgment of a strongly constituted Federal Court in Muhammed bin Hassan v PP [1998] 2 MLJ 273. That case has been cited to us often enough. Yet, its importance merits the reproduction of the relevant passage in the judgment of the learned Chong Siew Fai CJ (Sabah and Sarawak). This is how he put it at pp 287-289:

In our view, there is a clear undeniable distinction between the word ‘

deemed’ used in s 37(d) and the word ‘found’ employed in s 37(da) of

the Act. The ‘deemed’ state of affairs in s 37(d) (ie deemed possession

and deemed knowledge) is by operation of law and there is no necessity

to prove how that particular state of affairs is arrived at. There need

only to be established the basic or primary facts necessary to give

rise to that state of affairs, ie the finding of custody or control.

Such presumptions as under s 37(d) (and, for that matter, the one under

s 37(da)) are sometimes described as ‘compelling presumptions’ in that

upon proof of certain facts by a party (in our present case, proof of

custody or control in s 37(d) by the prosecution), the court must in

law draw a presumption in its favour (ie presumptions of possession and