Mohd Noor Ahmad JCA:

The appellant was convicted and sentenced to death on a charge of trafficking in 305.2 grams of heroin. The charge reads:

Bahawa kamu pada 20.5.1994, jam lebih kurang 3.15 petang di sebuah rumah No. 35, Jalan Kelapa Bali, Taman Soga, Batu Pahat, dalam daerah Batu Pahat, dalam negeri Johor, telah didapati mengedar dadah berbahaya iaitu 305.2 gram heroin dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39(B)(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.

On appeal, we allowed the appeal, quashed the conviction and set aside the sentence.

In this case the learned judge had accepted the prosecution evidence that on 10 May 1994 at about 12.45am a party of police officers led by ASP Mohd Saleem made a spot check at Pusat Hiburan Disco 2000 and Karaoke, Jalan Rahmat, Batu Pahat Johor. The appellant and one Tor Sing Teong (DW5) were detained and brought back to Batu Pahat Police Station together with the appellant's car for further investigation. On the same day at the police station a search on the car was conducted and nothing was found. However, about ten days later on 20 May 1994 at 2.30pm a second search was made on the car in the absence of the appellant and a bunch of keys to the house as mentioned in the charge was found underneath the driver's seat of the car. The appellant rented the house from PW3 since February 1993. The landlord retained a room on the top floor as storage for his furniture (herein referred to as 'the said room') and locked it. The key to the said room was not given to the appellant. It is in the said room that the impugned dangerous drug was found. There were three rooms upstairs, that is to say, the said room, the master bedroom and another room. On the same day that the bunch of keys to the house was found in the car, at 3.15pm a police party led by SP9 went to the house and entered it by using the keys found earlier in the car. The appellant was brought along. SP9 found that the said room was not locked and noticed that the door knob was damaged. In the said room, the police party found on the sofa a plastic bag which contained the dangerous drug and other items. In another room a weighing machine and an electric plastic adhesive equipment were found in an open cupboard. Nothing incriminating was found in the master bedroom. The dangerous drug was sent for analysis and the chemist confirmed that it was heroin. The learned judge accepted the chemist's findings.

On that evidence the learned judge was satisfied that the appellant, had exclusive custody or control of the dangerous drug found, which triggered the application of the statutory presumptions under s. 37(d) and (da) of the Dangerous Drugs Act 1952 (the Act) and called for the defence.

The defence adduced evidence to the effect that the appellant rented the house for the purpose of intimacy with his girlfriend whom he had brought to the house about three times a week although each of them lived elsewhere. He only used the master bedroom. The said room had been forever locked since the beginning of the tenancy and he was not given the key to it. Ten days prior to his arrest he allowed his friend (DW5) to stay in the house as the latter was looking for a place to rent. At that time he was making arrangements for his wedding to his girlfriend, the date of which was fixed on 19 May 1994. He intended to live somewhere else after the wedding. During the period of the stay by DW5 he had never been to the house except on the evening prior to his arrest when he went to pick up DW5 at the house as prearranged without entering the house. DW5 locked up the house and placed the keys to the house near the handbrake of the car after having entered it. With regard to the event on 20 May 1994 when the police party went to the house, the search was first conducted on the ground floor and thereafter the top floor was searched in the respective order, the master bedroom, anot