Gopal Sri Ram JCA:

Each of the appellants before us was convicted of an offence of trafficking in drugs contrary to s. 39B of the Dangerous Drugs Act 1952("the Act"). At the trial, each appellant faced a separate charge. As against the first appellant, the charge was that he had trafficked in 117.8 grams of heroin. The charge against the second appellant was that he had trafficked in 231.7 grams of heroin. The third appellant was charged with trafficking in 262.8 grams of heroin. All the appellants were jointly tried before Judicial Commissioner Jeffrey Tan, at the Penang High Court. At the conclusion of the trial the learned judicial commissioner found the appellants guilty and imposed upon each of them the mandatory death sentence prescribed by the Act. The appellants appealed against their convictions to the Court of Appeal. That court, in a judgment delivered by Abdul Malek, JCA, dismissed the appeal. The appellants thereafter appealed to this court.

The facts that lie at the core of this appeal appear sufficiently in the judgment of the Court of Appeal delivered by Abdul Malek Ahmad JCA. It is reported in Adekunle Johnson Oshodi v. PP[1998] 1 CLJ 515. We therefore find it unnecessary to re-visit the facts in this judgment. Suffice that we deal with the main arguments advanced in support of the appeal.

A number of grounds were argued in support of the appeal. However, the mainstay of the argument of the appellants rests on the complaint that the approach adopted by the trial court and the Court of Appeal runs foul of the decision of this court in Muhammed Hassan v. PP [1998] 2 CLJ 170. This was added as an additional ground on the appellants' motion to amend their petition of appeal which application, on being unopposed, was granted.

The appellants' particular complaint is that both courts below had resorted to the presumption under s. 37(da) of the Actafter invoking the presumption under s. 37(d) thereof. These two provisions read as follows:

37. In all proceedings under this Act or any regulation made thereunder -

(d) any person who is found to have had in custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug;

(da) any person who is found in possession of -

(vi) 15 grammes or more in weight of heroin,

otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug.

The learned judge at first instance approached the proof of trafficking as follows:

Therefore for the chain of presumptions to apply, that is from custody or control to possession and thence to trafficking, there must foremost be the primary and unequivocal evidence of the accused's respective custody or control of the 22, 44 and 50 'sausage-like packages' containing the heroin. (emphasis added.)

Now, this sentence, apart from suffering from the infirmity of poor construction, amounts to a misdirection of law. The judge obviously considered himself to be able in law to presume trafficking by relying on the joint operation of the presumptions under s. 37(d) and (da) of the Act. The judgment when read as a whole confirms this to be his line of reasoning. This runs counter to the proper direction of law that commended itself to this court in Muhammed Hassan v. PP [1998] 2 CLJ 170. The learned Chief Judge of Sabah & Sarawak who spoke for this court upon that occasion summed up the approach that trial judges ought to adopt in relation to the proof of possession in the context of s. 37(da) of the Act(at p. 190):

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 opera