The prosecution must establish overt acts to prove drug trafficking; mere possession does not suffice.

[17] Para 2 had set out the impugned decision of the learned HCJ who had made the following crucial finding of facts which appears in para 61 of her Grounds of Judgment. As was reproduced in para 2 of the Petition of Appeal, the impugned para 61 reads as follows:

"61. The accused has himself in his defence mentioned that the subject drug was meant to be handed over to another person who will be at the Tanjung Batu River banks to receive. (See p 81, Rekod Rayuan Jenayah)."

[18] We will now deal with the law on trafficking in drugs in the context of the DDA 1952. Section 2 of the 1952 states 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, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;"

[19] Although at first blush, proof of mere acts of any of those conducts, simpliciter, listed in s 2 would suffice, nevertheless, it had since been interpreted that more than proof of mere factum of any of those conducts was needed by law in order to constitute trafficking. A decision by the Judicial Committee of the Privy Council in drug trafficking case emanating from Singapore, was instrumental in shedding more light on what would in law amount to trafficking in drugs. Something more was required to constitute trafficking than mere evidence of any of those listed conducts, simpliciter. That 'extra' bit of evidence that was needed to constitute trafficking was explained with great clarity by the Privy Council, no less, in the speech by Lord Diplock in the case of Ong Ah Chuan v. PP , . We felt compelled to reproduce in some length, what the great jurist had said, so as not to derogate in any way from what was succinctly encapsulated by the eminent Law Lord. The 'overt act' in drug trafficking requirement was postulated in the following terms:

To "traffic" in a controlled drug so as to constitute the offence of trafficking under s 3 involves something more than passive possession or self-administration of the drug; it involves doing or offering to do an overt act of one or other of the kinds specified in para (a) of the definition of "traffic" and "trafficking" in s 2. Even apart from any statutory definition, the ordinary meaning of the verb "to traffic", in the particular context of trafficking in goods of any kind, imports the existence, either in fact or in contemplation, of at least two parties: a supplier and a person to whom the goods are to be supplied. This concept, involving transfer of possession, is reflected in the statutory definition itself. Of the seven verbs used to describe the various kinds of overt acts which constitute trafficking "transport" is sandwiched between "sell, give, administer" which precede it and "send, deliver or distribute" which follow it. All of these other verbs refer to various ways in which a supplier or distributor, who has drugs in his possession, may transfer possession of them to some other person. "Transport", although it must involve possession of the drugs by the person who transports them, is the only member of the heptad of verbs that is not inconsistent with the retention of possession of the drugs by him after their transport. It must mean moving the drugs from one place to another; it may mean moving them