GROUNDS OF DECISION

1. The abovenamed respondent/appellant (the accused) was charged in the Sessions Court at Kuching with two offences as follows:-

1st Charge

"That you on the 28th day of February, 1997, at about 0545 hours, in the bedroom, at the ground floor of house No. 147, Jalan Haji Bolhassan in the District of Kuching, in the State of Sarawak, being a person not exempted under Sections 4 and 5 of the Dangerous Drugs Act 1952, was found to be in possession of a dangerous drug, to wit 173.63 grammes of Cannabis and you thereby contravened Section 6 of the Dangerous Drugs Act 1952 and punishable under Section 39A (2) of the same."

2nd Charge

"That you, on the 28th day of February, 1997, at about 0430 hours, had in the console box of car bearing registration No. QKF 6827, at the road side of Jalan Muhibbah, in the District of Kuching, in the State of Sarawak, being a person not exempted under Sections 4 and 5 of the Dangerous Drugs Act 1952 was found to be in possession of a dangerous drug, to wit 0.14 grammes of Cannabis and you thereby contravened Section 6 of the Dangerous Drugs Act 1952 and punishable under the same." [2]

2. At the end of the trial in respect of the abovesaid two charges, the learned Sessions Court Judge convicted the accused on the 1st charge and he was sentenced to an imprisonment term of 5 years and was also ordered to be whipped with 10 strokes of the rotan. The accused was discharged and acquitted on the 2nd charge.

3. Being dissatisfied with the abovesaid decisions, both the Deputy Public Prosecutor and the accused herein appealed to the High Court. The accused appealed against his conviction on the 1st charge, whereas, the Deputy Public Prosecutor appealed against the order of discharge and acquittal of the accused on the 2nd charge and also the sentence imposed on the accused in respect of the 1st charge.

4. After having heard the submissions of both the learned counsel for the accused as well as the learned Deputy Public Prosecutor on the three appeals as mentioned herein, I have ordered that the appeal by the accused against his conviction on the 1st charge be dismissed. Similarly, the appeal by the Deputy Public Prosecutor against the order of discharge and acquittal of the accused on the 2nd charge was also dismissed. However, as to the appeal in respect of the sentence imposed by the learned Sessions Court Judge against the accused upon his conviction on the 1st charge, I deemed it just to enhance the imprisonment term from 5 years to 8 years and that the order of whipping to remain at 10 strokes.

5. Although in his petition of appeal, the accused proposed three grounds for the consideration of this court, the learned counsel for the accused at the hearing of this appeal concentrated only on the first ground pertaining to the mandatory requirement of section 37(j) of the Dangerous Drugs Act 1952 that samples of the contents of not less than ten per centum must be taken before the said presumption could be invoked. Simply put, the learned counsel for the accused submitted that a sample of 27 grammes taken from exhibit P11 with a net [3] weight of 139.45 grammes suspected to be of being a dangerous drug and then dividing the sample of 27 grammes into three separate portions could not amount to the ten per centum as required by section 37(j). In the case of LEONG BON HUAT v PENDAKWA RAYA [1993] 2 AMR 37:2132, Edgar Joseph Jr, SCJ in delivering the decision of the then Supreme Court explained the meaning of ten per centum as provided in section 37(j) of the Dangerous Drugs Act 1952 as follows:-

"Now, what does "more than 10% of the net weight of 793.85 gms" mean? Does it mean 11% or 12% or 13% or more than that? Not to put too fine a point on it, the expression "more than 10%" is ambiguous and there should be no ambiguity on such a matter where the life of a subject is at stake. What is necessary is that the testimony of the chemist upon such a matter must be clear and convincing.

To take the