The failure to rebut the presumption of trafficking under the Dangerous Drugs Act resulted in upholding the conviction.

Shaik Daud Ismail JCA:

The appellant was convicted under s. 39B(1)(a) of the Dangeruous Drugs Act 1952, ("the Act") (revised 1983) in the High Court at Kota Kinabalu on 22 June 1998, for trafficking in dangerous drugs ie, 811 grams of cannabis. The offence was alleged to have been committed on 31 December 1996 at about 3.15pm at the back of Kedai Nam Soon, Pekan Lama Kudat. He was accordingly sentenced to death. He now appeals against the conviction, and sentence.

Several grounds of appeal were put forward but the learned counsel for the appellant centred his argument on three grounds. Firstly, it is his contention that the learned judge failed to carry out a separate exercise under s. 37(da) of the Act as required by the Supreme Court case of Mohamad Radhi b. Yaakob v. Public Prosecutor [1991] 3 CLJ 2073. In the Supreme Court case, which is also a drug trafficking case, the court held that unless the evidence in a particular case does not obviously so warrant, it is incumbent upon the court to consider whether on a balance of probabilities defence has rebutted the statutory presumption of trafficking under s. 37(da) of the Act as a separate exercise even though the court is satisfied on balance that the presumption of possession under s. 37(d) of the Act had not been rebutted. On our perusal of the grounds of judgment of the learned judge, we found that he quoted in extenso the findings of the Supreme Court in Mohamad Radhi's case and applied the principle therein to the present case. Be that as it may, there is a distinction between that case and the present case. In the present case, the appellant's defence was a mere denial and nothing more. In Mohammad Radhi's case the qualifying factor was that, "unless the evidence in a particular case does not obviously so warrant ...". The defence was not a mere denial but that he was in possession of the bag in which the offending drug was found but that he was an innocent and a momentary carrier and called several witnesses in support of that defence. The trial judge (there) simply brushed aside all these and held that since the accused had failed to rebut the presumption of possession under s. 37(d) of the Act, the presumption under s. 37(da) of the Act had also not been rebutted. As can be seen in the light of the defence therein, the trial judge failed to carry out a separate exercise to consider whether the defence had also rebutted the presumption of trafficking.

In the present case, the appellant had denied possession and the learned judge found that after considering the whole evidence, including that of the appellant, he was satisfied that the prosecution had proved their case beyond a reasonable doubt and the appellant had failed to raise any doubt, we find no reason to disagree with the learned judge. Therefore, the circumstances in the present case did not warrant the learned judge to undertake a separate exercise.

The second ground raised by the appellant was that there were contradictions between two prosecution witnesses namely PW2, Inspector Abdul Rozak bin Muhammad, the leader of the ambush team, and that of PW5, DSP Mohd. Deraman, the Ketua Polis Daerah Kudat.

There is no dearth of authorities to say that in every case, there are bound to be contradictions and discrepancies. The question to be decided by the trial judge is whether those contradictions and/or discrepancies are material ones so as to strike at the very root of the charge. It is for the trial judge to consider this since he was the one who saw and heard the evidence. In the present case the learned judge concluded that there were discrepancies but those discrepancies were not material ones. Since this involved the credibility of witnesses, we held that the learned judge was a better person to decide and an appellate ought not to interfere with such findings.

The third and final ground raised by the appellant was the tender of a green plastic bag in the court as an exhibit when no such g