Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] The respondent before us was charged for offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act). He was acquitted at the close of prosecution's case. The Public Prosecutor being dissatisfied with that result has appealed to us.

[3] The brief facts relevant to this appeal are these. On 22 April 1997 at about 4pm, PW3 (DSP Ramli) accompanied by 11 police officers conducted a surveillance in the area surrounding EON, Bulat Dumbar and Lengkok Dumbar in Penang. There was a bus stop at Bukit Dumbar. PW4 (Insp. Raja Hafiz) and his team of officers placed themselves at that bus stop. A short while later PW4 saw a BMW motorcar registration number PDJ 31 travelling towards him. After communicating with PW3, PW4 and his team stopped the car. There is no dispute that the respondent was driving the car. There is also no dispute - indeed the judge accepted it as a fact - that the police officers had identified themselves as such to the respondent. It is also not disputed that a scuffle took place following which the respondent was placed under arrest. The police recovered a red plastic package (exh. P7) from the front passenger seat of the motorcar. Inside it were found three compressed slabs which PW3 suspected to be cannabis. The boot of the car was also searched. From it was recovered a small white package containing five compressed slabs and a small red plastic package containing two newspaper packages. From one of these packages, were recovered two compressed slabs and from the other, one compressed slab. Upon subsequent examination by the chemist, it was found that all these slabs contained a total of 10.384 kilograms of cannabis, a drug proscribed by the Act.

[4] Before us it was argued by the learned deputy that the High Court had misdirected itself in acquitting the respondent without calling upon his defence. Our attention was drawn to the following circumstances which, according to the learned deputy, when taken together established a prima facie case against the respondent. In the first place there is the finding of the exhibit on the front passenger seat and in the trunk of the car. The proximity of the respondent to the drugs at the front passenger seat is a fact relevant to establish actual physical possession.

[5] In Public Prosecutor v. Foo Jua Eng , the accused was charged with assisting in carrying on a public lottery. The evidence showed that the accused had been found by the police in a room, seated about three feet away from a dressing table on which the relevant exhibits were found. The magistrate acquitted the accused. The prosecution appealed. In allowing the appeal, Raja Azlan Shah J (as His Royal Highness then was) said this:

With regard to the mental element, the learned magistrate rightly directed his mind that knowledge or consciousness would depend on the surrounding circumstances. However, he failed to direct his mind adequately on the facts. He directed his mind to the circumstances when the respondent tried to close the door on PW1. But he failed to consider the other circumstance which, taken together, may well be that the element of possession was proved. That circumstance is the physical proximity of the respondent to the exhibit in question.

[6] So too here. The learned judge having accepted the prosecution's evidence as to the finding of the drugs, the identification of the police officers and the scuffle, failed to direct himself as to the proximity of the drugs to the respondent. Indeed no where in his judgment, did the learned trial judge address his mind to this fact. There is the added circumstance that the respondent was driving the car from one point to another with the proscribed drugs in it.

[7] To the foregoing cumulative facts may be applied the following observation of Lord Diplock in Ong Ah Chuan v. PP:

Proof of the purpose for which an act is done, where such purpose is a necessary ingredient of the offen