Richard Malanjum FCJ:

[1] This is an appeal by the appellant against the decision of the Court of Appeal given on 5 September 2003 affirming his conviction and sentence of death by the High Court Alor Setar Kedah on a charge which reads:

Bahawa kamu pada 13.12.1997 lebih kurang jam 11.30 pagi di Hospital Daerah Jitra, di dalam Daerah Jitra, di dalam negeri Kedah Darulaman, bagi pihak diri kamu sendiri telah mengedar dadah berbahaya iaitu 515.7 gram heroin dan ia merupakan satu kesalahan di bawah Seksyen 39B(1) (a) Akta Dadah Berbahaya 1952 (Akta 234 Semakan 1980) dan kamu boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.

[2] Briefly the facts of this case as found by the High Court are as follows:

On the morning of 12 December 1997 at around 8am the appellant came to the inspection counter of the Customs Office at Bukit Kayu Hitam. Search was conducted on his belongings. Nothing was found. Bodily search was then conducted on him resulting in the finding of some Imodium and Mottilium pills from his trousers pocket. As a result of the finding the appellant was brought to the Jitra District Hospital for further search. At first the appellant was reluctant to be x-rayed on the ground of his health. With some explanations he later acceded. From the x-ray films of his abdomen several foreign objects were seen present in his large and small intestines. He was therefore placed in a special room and given laxative pills. On the third day the foreign objects were excreted. They consisted of 84 capsules suspected to contain heroin. These were sent to the Chemistry Department Penang for analysis. The result of the analysis confirmed that the contents of the capsules were heroin with the total weight of 515.7 grams. It was also confirmed by the Chemist who carried out the analysis that the heroin found came within the First Schedule of the Dangerous Drugs Act 1952 (the Act). Accordingly the appellant was charged for trafficking under s. 39B(1)(a) of the Act, tried and found guilty as per charge. He was sentenced to death, a mandatory sentence under the Act.

[3] During the trial at the court of first instance the prosecution adduced evidence of actual possession of the heroin by the appellant without resorting to the presumption under s. 37(d) of the Act. Thereafter the presumption of trafficking under s. 37(da) of the Act was invoked since the heroin found exceeded 15 grams. At the close of the prosecution's case the learned trial judge found that there was prima facie case made out against the appellant. He was therefore called to enter upon his defence.

[4] Basically the defence raised by the appellant at the trial was his ignorance of the contents of those capsules. He testified that he was carrying the capsules on behalf of one Bright Owusu and he thought the contents were gold dust since he had done the same in two previous occasions albeit by different mode. The learned trial judge did not believe his version and at the end of the hearing and having considered the evidence adduced as a whole he was satisfied that the defence failed to raise any reasonable doubt and that the prosecution had proved its case beyond reasonable doubt thus finding the appellant guilty as charged.

[5] On appeal to the Court of Appeal several grounds were raised, inter alia, the failure by the learned trial judge to give reasons as to why a prima facie case as per charge had been made out against the appellant at the close of prosecution's case. It was also submitted that despite the amendment to the Criminal Procedure Code on the standard of proof required at the end of prosecution's case, namely, on prima facie only, the test to be applied would be one of beyond reasonable doubt. Another argument advanced was that to constitute actual possession the prosecution must establish knowledge on the part of the appellant.

[6] The Court of Appeal was not persuaded by the arguments advanced on behalf of the appellant. On the issue of the test to be app