Mokhtar Sidin JCA:

The appellant in this appeal appealed against the sentence imposed by the High Court for an offence under s. 6 of the Dangerous Drugs Act 1952 ("the Act") and punishable under s. 39A(2) of the Act. The appellant was originally charged in the High Court under s. 39B of the Act but at the close of the case for the prosecution the learned trial judge amended the charge to one under s. 6 of the Act. The appellant was sentenced to ten years imprisonment from the date of his arrest and also ten strokes of the rotan after he elected to remain silent when the amended charge was read to him.

The facts as stated by the learned judge were, on 16 June 2000, Chief Inspector Yap Huat Tian led a police party to a flat number Block 4, Desa Tun Razak, Sungei Besi, Kuala Lumpur. At about 11.15pm Chief Inspector Yap Huat Tian who was at a higher floor of the flat saw the appellant walking towards the lift. Chief Inspector Yap Huat Tian then instructed Lance Corporal Lim Hee Jiang and Corporal Romli to arrest the appellant. Chief Inspector Yap Huat Tian then came down to the ground floor. When he reached the ground floor he saw the appellant had already been arrested by Lance Corporal Lim Hee Jiang and Corporal Romli. Lance Corporal Lim Hee Jiang gave evidence that when he and Corporal Romli identified themselves as police officers the appellant attempted to run away. When Lance Corporal Lim arrested the appellant, he took possession of a white plastic bag with the word "Starmart" which the appellant was holding. Lance Corporal Lim then handed over the plastic bag to Chief Inspector Yap. Chief Inspector Yap opened the plastic bag in front of the appellant and inside it Chief Inspector Yap found a packet wrapped in old newspapers.

In the packet, Chief Inspector Yap found some plant materials wrapped with masking tape which he suspected to be cannabis. After analysis the chemist confirmed the plant materials to be cannabis weighing 953.2 grammes. At the close of the case for the prosecution the learned counsel for the appellant submitted that the prosecution failed to make out a prima faciecase against the appellant based on two grounds:

(i) the prosecution failed to prove the weight of the dangerous drugs; and

(ii) in a case of trafficking, as in this case, knowledge of possession of the dangerous drugs must be proved by direct evidence.

The learned judge found that there was no merit on the first ground submitted by the appellant's counsel but upheld the second ground raised by the appellant's counsel in that the prosecution failed to prove by way of direct evidence that the appellant had knowledge that in his possession, the drug 'cannabis'. Even though there was evidence to show that the appellant attempted to run at the time of his arrest, that was not sufficient to show that he had knowledge of the drug.

In his judgment, the learned judge stated that the evidence by the prosecution proved that the appellant had only possession of the cannabis to which the appellant's counsel conceded. The learned judge then proceeded to amend the charge against the appellant to one under s. 6 of the Act punishable under s. 39A(2) of the Act. When the amended charge was read to the appellant he claimed trial to the amended charge. After the three alternatives were read and explained to him, the appellant elected to remain silent. The learned judge then found the appellant guilty of the amended charge and convicted the appellant.

In mitigation, the appellant's counsel submitted that the appellant was 27 years of age at the time of the trial and unmarried. The learned deputy public prosecutor stated that the appellant had no previous convictions but pressed for a deterrent sentence in view of the amount of cannabis found to be in the possession of the appellant was 26 times more than the permissible limit.

The learned judge then sentenced the appellant to ten years imprisonment and ten strokes of the rotan.

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