JUDGMENT

Abdul Aziz Mohamad JCA:

The appellant was convicted in the Sessions Court in Kuala Lumpur of the offence under Dangerous Drugs Act 1952, ss. 12(2), (3), 37(d) 1952 of unlawful possession of 6.44 grammes of a mixture of heroin and monoacetylmorphines and was sentenced under s. 39A(2) to ten years imprisonment and the mandatory minimum ten strokes of whipping. The High Court dismissed his appeal against conviction and sentence. He now appeals to this court. The appeal is also as regards conviction and sentence.

On the evening of 13 July 2000, the appellant was driving, with no one else with him, a Proton Saga Aeroback motor car, of which he had been the registered owner since 1999, when at about 8.30 he stopped in front of the Maybank building in Kampung Baru, Kuala Lumpur, and was pounced upon by the police who were on the lookout for him. In the motor car, on the floor of the driver's section, was found a red plastic bag containing forty small plastic packets in four bundles, each of ten packets held together by a rubber band. The packets contained the drugs in powder and granular form.

There were two photographs that had been tendered as exhibits in the Sessions Court but were not included in the appeal record. We obtained these subsequent to the hearing of the appeal. Photograph P1C is one where the leader of the police party, Inspector Mohd. Azam, had marked with an X the position in the car where the plastic bag was found. Photograph P1D is a photograph of the plastic bag, the forty plastic packets and the four rubber bands. From photograph P1D we observe that the bag was a simple bag made of thin light plastic, the kind that shopkeepers provide for customers to carry away groceries or household provisions in. From the marking X in photograph P1C and the size of the bag as we judge it from photograph P1D, we conclude that the bag would have been between the feet of the appellant were the appellant to be seated normally in the driver's seat with legs straight down and not stretched out towards the pedals and would have fully occupied the space between the two feet.

After the close of the case for the prosecution, the learned DPP submitted that those facts (and another which we will mention later on) constituted evidence that the appellant had custody or control of the forty plastic packets and also knowledge that they contained the drugs and that therefore there was proof of possession. He further submitted that if the court was unable to find possession by direct evidence, he relied on the presumption under s. 37(d), which provides that in all proceedings under the Act:

any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.

The learned Sessions Court judge, as appears from her grounds of judgment, found, on those facts, that there was direct evidence of possession. She did not invoke the presumption. She accordingly called upon the appellant to enter upon his defence, at the end of which she convicted him.

Before us, Encik Karpal Singh for the appellant presented only one argument against conviction, namely that on the facts there was no evidence of the knowledge that was required to constitute possession. In effect his argument was that the facts did not necessarily justify the inference of knowledge. In relation to this argument, he particularly pointed out that it was a misdirection for the Sessions Court judge to take into consideration, as tending to show knowledge, the fact of the appellant's remaining silent when the bag was opened and the packets were shown to him just after the bag was found.

Actually the Sessions Court judge did not, in finding knowledge, take the evidence of the appellant's negative conduct of remaining silent into consideration. Although at the top of p.