JUDGMENT

Lee Hun Hoe CJ (Borneo):

This reference under s. 66(1) of the Courts of Judicature Act, 1964 reserves the following question for the decision of this Court:

Whether possession for the purpose of the Dangerous Drugs Act, 1952 would require proof of the power of disposal of the drug by the accused?

It is necessary to set out the facts. On 2 August 1981, acting on information, a police party led by a police inspector raided a room in Sentosa Hotel. They found the respondent and two travelling bags - one green and the other red. They searched the bags. Nothing incriminating was found in the green bag. However, in the red bag they found two pairs of trousers one of which was black in colour and a black box. Inside the black box was one plastic packet containing certain substance which one analysis by the Government Chemist was found to be opium. He was arrested and taken to the police station. In a follow-up operation on 4 August 1981 Hassan bin Ismail was arrested when he came knocking at the door of the room. The respondent's story is that he shared the room with his Malay friend Hassan and that the red bag belonged to Hassan. They planned to go to Sabah but was informed by the travel agent that their flight would be on 4 August 1981 instead of 31 July 1981. Hassan decided to return to his home in Sekinchan leaving his red bag behind. The room was registered in the respondent's name. The respondent decided to stay on in the hotel.

The learned Judge pointed out that the learned President found that the black pair of trousers in the red bag was the type usually worn by exponents of the Malay art of self-defence. This finding, the learned Judge thought, was consistent with the evidence of the investigating officer who said the pair of black trousers was like a bersilat trousers. The learned Judge considered that the learned President had made the right finding of facts but that he was wrong to say, in view of his finding that the red bag belonged to Hassan, that the presumption under s. 37(d) of the said Act had not been rebutted.

In dealing with the word "possession" the learned Judge referred to the oft cited case of Toh Ah Loh and Mak Thim v. Rex [1949] 15 MLJ 54. Where Gordon-Smith Ag. CJ stated:

... 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 disposal over the thing, and lastly must be conscious of his possession of the thing ...

He also cited Chan Pean Leon v. PP[1956] and PP v. Ang Boon Foo [1981] 1 MLJ 40 in support. He was of the view that the red bag and its content were owned by Hassan and that the appellant had no power of disposal of the red bag or its content as it did not belong to him. Consequently, he held that the presumption under s. 37(d) had been rebutted. It seems clear Hassan did not know of the respondent's arrest otherwise he would not have returned to the room.

The application contended that Toh Ah Loh and Mak Thim v. Rex (supra) concerned with a charge of unlawful possession of ammunition under the Firearms and Ammunition (Unlawful Possession) Ordinance, 1946. It does not apply to cases involving dangerous drugs. One has to look at the particular statute. In support he referred to Leow Nghee Lim v. Reg[1955] Where Taylor J said at p. 30:

A number of cases were cited and I have since consulted some others. I do not propose to go through them. It is clear that they conflict and it is therefore necessary to go back to first principles. I must, however, comment on the misuse which has been made of the dictim in Mak Thim (supra). There are Court Specified certain characteristics without which, they said, (except by statute) possession cannot be criminal. The words in brackets are vital. They were deliberately inserted to show that the ruling is not applicable where the meaning of the word "possession" is controlled by the particular statute ...

So much has been said about s. 37(d) of the