JUDGMENT

Hashim Yeop Sani CJ (Malaya):

The appellant is charged under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act. that on 20 December 1983 at about 12.50 a.m. at No. 8, Tepian Loke Yew, Off Jalan Loke Yew, Kuala Lumpur did on his own behalf traffic in a dangerous drug, to wit, 36.97 grammes of heroin, thereby committing an offence punishable under s. 39B(2) of the Act.

Immediately before his arrest the appellant was with three other male Chinese in a Honda Civic car bearing registration No. AAK 2646 which was stopped by the police at the place mentioned in the charge. The appellant was at the time of his arrest 20 years 10 months old.

Throughout the trial the appellant never disputed the fact that at the time of his arrest he had 10 small plastic packets of heroin concealed under the front part of his underpants.

The packets contained a total of 86.74 grammes nett of a light brown powdery substance which on analysis the chemist found to contain 36.97 grammes of heroin.

The prosecution case was straight forward. The heroin being 36.97 grammes, the appellant was presumed under s. 37(da)(i) to have been trafficking in the drug until the contrary is proved. Thus the learned Judge called upon him to make his defence.

The appellant gave his evidence on oath and also called five other witnesses. The crux of his defence is that he was at the material times a drug addict, and a severe one at that, and that the heroin found on his person was for his own consumption. Defence Counsel both in the Court below and before us valiantly canvassed the proposition that since there was overwhelming evidence that the appellant was a hard core addict at the time of his arrest, the presumption of trafficking has been rebutted on the balance of probability and that the heroin found on him was for his own consumption and not for trafficking.

It seems quite clear to us that the learned Judge accepted the evidence of the defence that the appellant was a drug addict on the day of his arrest and that in all probability the addiction was quite severe. Then the learned Judge asked himself whether the appellant, being an addict, could not also have been a drug trafficker within the meaning of the Act.

To satisfy himself the learned Judge considered the evidence of the defence relating to the 10 packets of heroin found concealed on the person of the appellant. The learned Judge found from the evidence that the appellant's drug addiction required him to use half a packet of heroin a day. The appellant in his evidence said that the whole amount would last him 30 days. He also said that he bought the 10 packets to share with his two friends and that the two friends had also contributed towards the purchase. Under cross-examination the appellant said that he had contributions from his friends to buy the 10 packets of heroin which cost RM600.

The defence also relied on the cautioned statement of the appellant made to DW2, Insp. Saliman. He said he gave the statement voluntarily. The intention of the defence was to show by way of a voluntary statement that the appellant was a drug addict. However in the cautioned statement itself in response to the question "Mengapa dadah yang didapati pada kamu itu banyak?" ("Why was the amount of drug found on you so much?". the reply by the appellant was "Sebab saya hendak jual kepada Saw Chai yang bekerja di Paris Pub." ("Because I wanted to sell to Saw Chai who was working in Paris Pub".)

It is quite clear then that although the learned Judge accepted the evidence that the appellant was a drug addict, he rejected his explanation of the 10 packets of heroin found on his person. He was satisfied that the appellant was trafficking in the drugs as charged and convicted the appellant.

"Trafficking" is defined in the Act as follows:

"Trafficking" includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving. receiving, storing, administering, transport