JUDGMENT

Zamani Rahim JC:

The Charge

[1] Both the accused, OKT1 and OKT2 were jointly charged as follows:

Bahawa kamu pada 31 Ogos 2002 pada jam lebih kurang 7.00 malam di Jalan Belakang Masjid Kulim, dalam Daerah Kulim, dalam Negeri Kedah Darul Aman telah didapati mengedar dadah berbahaya iaitu Cannabis seberat 48,329.40 gram. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan .

Facts Of Case

[2] Acting on information received, on 31 August 2002, at about 7pm, ASP (now Supt) Mohd. Zainal bin Baharom, SP4 and his men had stopped a motorcar, PEL 4369 at Jalan Belakang Masjid Kulim, Kulim. The said motorcar was driven by Mohd. Zaki bin Abu Bakar, OKT1, and Mohamad Hafez bin Abdul Halim, OKT2, was seated in the front passenger seat.

[3] SP4 directed OKT1 to come out from the said motorcar to which he complied. OKT2 was similarly ordered. Outside the motorcar, OKT2 was guarded by SP4's men. While OKT1 was questioned by SP4 - "Adakah dia membawa apa-apa barang salah?" OKT1 nodded his head.

[4] Only then, SP4 read the caution under s. 37A(1)(b) of the Dangerous Drugs Act to OKT1. SP4 said OKT1 understood the caution. Thereafter, SP4 requested OKT1 to show him the said unlawful goods (barang salah). OKT1 did as requested. He opened the boot of the said motorcar where three plastic sacks tied with a yellow rafia rope were seen in the boot. There were Thai words written on each of the plastic sacks. The word 'Methapose' was also printed on them.

[5] Having seen the three plastic sacks, P6A, P7A and PSA, SP4 requested OKT1 to untie the rafia rope on one of the plastic sacks. Again OKT1 complied. In the said sack, it was found to contain several greenish compressed slabs. OKT1 also re-tied the rafia rope on the said plastic sack.

[6] OKT1 and OKT2 were then handcuffed. They were taken to Kulim District Police Headquarters together with the three plastic sacks and their contents. At the police station, the three plastic sacks were marked as MZ(A), MZ(B) and MZ(C) respectively. On examination of the sacks, they were found to contain as follows:

1. P6A which was marked MZ(A) contained 19 compressed slabs of dried leaves

2. P7A which was marked MZ(B) contained 16 compressed slabs of dried leaves

3. P8A which was marked MZ(C) contained 15 compressed slabs of dried leaves

[7] Each of the slabs were wrapped in a transparent plastic wrapper. The slabs were suspected to be ganja.

[8] All the compressed slabs of dried leaves were sent to and analysed by the government chemist who confirmed them to be cannabis as defined in s. 2 of the Dangerous Drugs Act 1952, weighing a total of 48,329.40 grammes.

Possession In Law

[9] What is possession in law has been discussed and decided in many cases by our courts. In the Federal Court case of PP v. Mohd. Radzi Abu Bakar, [2005] 6 MLJ 393, Gopal Sri Ram JCA had referred to two cases. The first case is Toh Ah Loh & Mak Thim v. Rex; [1949] 1 MLJ 54 where Gordon Smith Ag. CJ explained the meaning of "possession" in the statute as follows:

Possession, in order to incriminate a person, must have the following characteristics. The possessor must know the nature of the thing possessed, must have in him a power of disposal over the thing, and lastly must be conscious of his possession of the thing. If these factors are absent, his possession can raise no presumption of mens rea , without which (except by statute) possession cannot be criminal.

[10] The second case is Saad Ibrahim v. PP, [1968] 1 MLJ 158 where Young J emphasised on the requirement to prove the accused's knowledge before conviction on possession. His Lordship said:

In my opinion mere possession is one thing and possession with mens rea is another. Possession which incriminates must have certain characteristics. The possessor must be aware of his possession, must know the nature of the thing possessed and must