Mohd. Yusof Mohamed SCJ:

We allowed this appeal, set aside the conviction and sentence against both appellants and indicated that we would give our reasons later. We do so now.

Both the appellants, Choo Chang Teik (1st appellant), and Teoh Hee Siang (2nd appellant) were charged for trafficking in 6039.99 grammes of heroin contrary to s. 39B(1)(a) of the Dangerous Drugs Act 1952.

The facts of the case are that on 6 November 1985 a police party headed by Inspector Amarjit Singh kept surveillance on a house No. 12 Jalan Senohong Satu, Taman Cantik, Cheras, Kuala Lumpur. This was a double-storey house. At about 6 p.m. they saw two motorcars leaving the shopping area nearby. Both cars stopped at the house. One motorcar, a grey Datsun Stanza was driven by the 1st appellant and the other by one Tan Soon Hock with the 2nd appellant sitting beside him. As Tan Soon Hock and the 2nd appellant entered the house they saw the 1st appellant taking out something heavy from the boot of his motorcar and carrying it into the house.

At 6.15 p.m. the police party raided the house. They found the front door locked. Using a crowbar they broke open the door. On entering the house they saw the 1st appellant walking towards the kitchen. On seeing them the 1st appellant ran away. He was chased and was arrested some distance away from the house.

Another group of police officers rushed upstairs and they saw both the 2nd appellant and Tan Soon Hock in the master-bedroom. As they shouted "Police!" both of them ran towards the balcony and the 2nd appellant managed to jump out of the window. He was finally arrested also some distance away from the house. Tan Soon Hock was however arrested in the master-bedroom. Concealed in the bathroom attached to the master-bedroom, Insp. Amarjit Singh recovered a brown travelling bag which later was found to contain heroin.

Tan Soon Hock was consequently charged together with the appellants for the offence but as his fate determined it, he has since died in police custody just before the trial.

The prosecution also adduced evidence that the 1st appellant was present when the 2nd appellant rented the house from its agents and at different times Tan Soon Hock also participated in the negotiation on the rent payable for the house.

On these facts the learned Judge called on both the appellants to enter their defence. Obviously the presumptions under s. 37(da) and (g) of the Act had arisen in that both the appellants had possession and control of the heroin referred to in the charge and that they had the presumed knowledge of the existence of the drug in the house. The question which arose was whether both the appellants have rebutted those presumptions.

We agree with the learned Counsel for the appellants who pointed out that the learned Judge however had mistakenly relied on the presumption in s. 37(d) of the Act. But we do not agree that such a mistake detracted from established facts which prima facie constitute an offence under the Act, nor that such an error has caused a miscarriage or failure of justice.

Upon hearing the defence of both the appellants the learned Judge totally rejected them. We do not agree and hence allowed the appeal.

The defence story is that the 2nd appellant said that he and Tan Soon Hock had rented the house on 4 November 1985, meant for his office. He took the keys from its owner. He said that in the afternoon of 5 November 1985, Tan Soon Hock borrowed the keys from him saying that he wanted to put something in the house. He also said that on 6 November 1985, he met his old friend, that 1st appellant, while he was having lunch with Tan Soon Hock. His friend wanted to rent a room in the house to which he and Tan Soon Hock agreed. In the evening of 6 November they were moving into the house. They ordered some furniture for the house as evidenced by receipt produced bearing the same date, 6 November 1985, while the 1st appellant bought a pail, rubber hose and mops at the adjacent mini-mark