Mohd Ghazali Yusoff FCJ:

[1] The appellant was charged with two offences of trafficking in dangerous drugs under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and punishable under s. 39B(2) of the same. The first charge relates to 33.2 grammes of heroin and monoacetylmorphines (5.8 grammes of heroin and 27.4 grammes of monoacetylmorphines) and the second charge relates to 514.1 grammes of heroin and monoacetylmorphines (73.6 grammes of heroin and 440.5 grammes of monoacetylmorphines).

[2] The facts showed that on 2 April 1999 at 7.40am, acting on information in relation to a stolen motorcar, L/Kpl Chandran (PW7) and L/Kpl Appasamy from the Criminal Intelligence Unit, Police Headquarters, Petaling Jaya went to the car park of Flat C, Taman Petaling Utama, Petaling Jaya to investigate. Having identified the stolen motorcar and having noted that there was no one in the motorcar, they made an observation from a distance for about an hour and 40 minutes. Subsequently, they saw the appellant walking towards the motorcar. The appellant then stopped, looked around, opened the boot of the motorcar and took out a red plastic package and then closed the boot. PW7 together with L/Kpl Appasamy immediately rushed towards the appellant and PW7 identified himself as 'police'. The appellant looked shocked and pale and attempted to run away but was apprehended. PW7 seized the red plastic package from the appellant's hand and upon opening the package, found therein 140 small plastic packets each containing pinkish crystallite and powdery substance later analysed by the chemist to be heroin monoacetylmorphines. Upon searching the boot of the motorcar, they found four plastic packages and therein 1,648 small plastic packets which also contained a similar pink crystallite and powdery substance also later analysed by the chemist to be heroin monoacetylmorphines.

[3] When the case for the prosecution was concluded, the learned trial judge of the High Court found that a prima facie case had been made out against the appellant on both charges of trafficking and hence called upon the appellant to enter on his defence. He was satisfied that the appellant was in possession of the dangerous drugs and accordingly invoked the presumption of trafficking under s. 37(da)(iiia) of the Act.

[4] The appellant elected to make a statement from the dock. He also called two witnesses, namely, his mother (DW1) and sister (DW2).

[5] At the close of the case for the defence the learned trial judge concluded that the defence was one of mere denial. He also found the evidence of DW1 and DW2 to be irrelevant as they were not present at the time of the arrest and nor did they know anything about the motorcar or the packages containing the dangerous drugs seized from the appellant by the police.

[6] However, at the conclusion of the trial and after hearing the submission of both the Deputy Public Prosecutor and counsel for the appellant, the learned trial judge amended the two charges of trafficking and substituted therewith to one of possession of 4.875 grammes of heroin and monoacetylmorphines under s. 12(2) of the Act punishable under s. 39A(1) of the same and sentenced the appellant to five years imprisonment and nine strokes of whipping.

[7] The learned trial judge made the decision that he did after concluding that the analysis carried out by the chemist (PW6) based on the small quantities of samples for the purpose of quantitative test was not sufficient, ie, he was dissatisfied with the small weight of the samples used by the chemist for analysis. In relation to this, the learned trial judge said in his grounds of judgment that he relied on Leong Bon Huat v. Public Prosecutor [1993] 3 CLJ 603 as a basis for his conclusion. In Leong Bon Huat, a conviction under s. 39B(1)(a) of the Act for trafficking in 793.85 grammes of cannabis was attacked on appeal on the ground that the testimony of the chemist did not prove beyond reasonable doubt that the bulk