Abdul Malek Ahmad FCJ:

The respondent had been sentenced to death by the Shah Alam High Court on 30 January 1996 for trafficking in 3839.9 grams of cannabis in a Proton Saga car with registration number BDH 883 in front of a house No. 9 Jalan 1/1 Bandar Kinrara, Puchong, Selangor on 29 December 1994 under s. 39B(2) of the Dangerous Drugs Act 1952 (hereinafter "the Act").

The respondent was seen by the police party standing next to the car on the right side near the driver's seat. From the respondent's right hand was taken the car keys and from his right trouser pocket was taken eleven keys. On the floor board in front of the left front passenger seat was found a box with two slabs of dried leaves in a plastic wrapper. From one of the eleven keys, the police party managed to enter the house and recover case exhibits believed to be drugs but which do not form part of the charge. The charge related only to the drugs found in the car.

Subsequently, the Chemist analysed the drugs recovered in the car to be 3839.9 grams of cannabis as defined in s. 2 of the Act. The learned High Court judge was satisfied with the evidence given by the Chemist to this effect. The court was also satisfied that the car belonged to the respondent as in fact the car door was opened with the car keys obtained from the respondent. In consequence, it was the finding of the court that the drugs were in the custody and control of the respondent. Accordingly, the respondent, until the contrary was proved, was presumed to be in possession of the drugs and because of its weight, was presumed to be trafficking in the said drugs.

In his sworn testimony, the respondent admitted that the car was his but said that the house was not. The car was left there by his friend Ahmad Azahan bin Abdul Rahman, prosecution witness SP9, who had given him the house keys to enter the house to get the car keys from inside. He added that he was totally unaware of the box found in the car by the police party. Of course, the learned High Court judge did not believe his denial, as SP9 was never questioned on these facts, and held that, on a balance of probabilities, it did not rebut the presumptions under s. 37(d) and (da) of the Act raised by the prosecution and, therefore, did not raise any reasonable doubt as to the case presented by the prosecution.

Before us, Karpal Singh for the respondent informed the court that he had a technical preliminary point as the petition presented by the appellant did not advert to the grounds the Court of Appeal allowed the appeal and substituted the sentence imposed. He referred to p. 20 of the notes of evidence in the High Court which states:

Indian Hemp is synonimus (sic) to cannabis. It is another name for cannabis. There is no different (sic) between Indian Hemp and cannabis. This information is based on scientific literature.

XXDEncik Bhagwan Singh.

P: I put it to you there is a legal distinction between cannabis and Indian Hemp.

A: No comment.

He added that it was on this ground, namely the question of cannabis or Indian hemp, that the Court of Appeal allowed the appeal. However, in its judgment, the Court of Appeal did not refer to the actual reason.

On the testimony of the Chemist, the Court of Appeal said:

It is clear that the Chemist carried out a detailed analysis of the plant contained in the 2 packets and he testified positively that the result of his test showed that the plant material examined by him was cannabis as defined under s. 2 of the DDA 1952.

It is our considered view the evidence given by the Chemist was satisfactory and cannot be faulted. In the premise we hold that the appeal on this issue is without merit.

Learned counsel then referred to s. 92 of the Courts of Judicature Act 1964 (hereinafter "the CJA") where sub-s. (1) states:

92. Powers of Federal Court

(1) At the hearing of an appeal the Federal Court shall hear the appellant or his advocate, if he appears, and, if it thinks fit, the respondent or his advocate,