Nik Hashim FCJ:

[2] However, I wish to add a few words on Toh Su Kuan v. PP, [2005] 3 CLJ 740 which was relied upon by the appellant to support his appeal.

[3] In that case, the accused was convicted under s 39B of the Dangerous Drugs Act 1952 (the Act) for trafficking in 1,584.93 grams of heroin and sentenced to death.

[4] The facts of that case are that the accused was arrested at a bus station and escorted to a police station, whereupon, he was searched and 356 small packets were found on different parts of his body. 62 packets were found in his left shoe; 60 packets in his right shoe; 57 packets were found strapped to his left shin and an equal number tied to his right shin. 60 packets were found tied to his waist in the front and an equal number fastened to his waist at the back. At the trial, the prosecution sought to establish 'trafficking' under s 37(da)(i) of the Act by way of direct and/or circumstantial evidence of 'possession'. The statutory presumption of possession under s 37(d) of the Act was not relied upon. At the conclusion of the trial, the learned trial judge expressed the view that the manner in which the packets were concealed pointed to the accused having knowledge that the packets contained heroin. The Court of Appeal ruled otherwise, holding that mens rea possession had not been established and thereby acquitted the accused.

[5] With respect, I am unable to agree with the Court of Appeal in that case. In my judgment, the learned High Court Judge there on the facts correctly found that the accused had knowledge of the heroin. The manner in which 356 small packets were found on different parts of his body irresistibly supports the conclusion that the accused was having mens rea possession of the drugs at the time of his arrest. Likewise in the present appeal, it was none other than the accused in that case who could have concealed the drugs on his body. Therefore, a reasonable tribunal armed with the same facts and properly directing itself would have concluded that the accused was having mens rea possession of the drugs, independently of the presumption of possession under s 37(d) of the Act. Thus, the Court of Appeal's decision in Toh Su Kuan was erroneous and should be overruled (see Tunde Apatira & Ors v. PP, [2001] 1 MLJ 259 FC; [2001] 1 AMR 577).

Augustine Paul FCJ:

[6] This is an appeal to this Court by the accused ("the appellant") whose conviction and sentence for trafficking in dangerous drugs by the High Court was upheld by the Court of Appeal.

[7] Briefly stated the facts of the case are as follows:-

[8] On 8 November 2000 PW4 (Inspector Gnanaaputham) who was attached to the Narcotics Division at Seberang Perai Tengah Police Station received information relating to the trafficking of drugs. PW4 together with a team of police personnel then proceeded to the Zamrud Restaurant at Juru. They arrived at the scene at about 3.15pm and took their positions. PW4 saw the appellant seated at a table. He observed the appellant for about five to ten minutes from outside the restaurant. He and his team then entered the restaurant and took their seats. PW4 sat down at the table next to where the appellant was sitting. Upon seeing the appellant leaving the restaurant PW4 arrested him. The other police personnel surrounded the appellant to prevent him from absconding. PW4 then identified himself as a police inspector On hearing this, the appellant looked shocked or stunned. A search of his person was conducted and a black plastic bag was found tucked away in the front of the jeans worn by him. Inside the black plastic bag was a transparent plastic bag containing a compressed block of dried plants suspected to be cannabis. Subsequent tests by the chemist revealed this to be 436.2