Richard Malanjum CJ (Sabah & Sarawak):

Introduction

[1] The respondent was charged and convicted for trafficking 39,105 grams of cannabis by the Penang High Court on 9 July 1997. He was sentenced to death as required by s. 39B of the Dangerous Drugs Act 1952 (the Act).

[2] On appeal to the Court of Appeal the conviction was substituted for possession under s. 6 of the Act which is punishable under s. 39A(2) of the same Act. The respondent was sentenced to 18 years imprisonment and ordered to undergo 10 strokes of whipping.

[3] The prosecution now appeals before this court against the decision of the Court of Appeal. The respondent is cross-appealing against the substituted conviction and sentence.

[4] We heard the submissions by the learned Deputy Public Prosecutor and the learned counsel for the respondent. We note that the issues addressed before us are similar to what were canvassed before the Court of Appeal. Except for one issue, that is, on the application of the presumptions pursuant to ss. 37(d) and 37(da) of the Act by the learned trial judge, the Court of Appeal did not find sufficient merits on the rest of the issues raised.

[5] With respect, we are inclined to take a similar approach in this appeal. We agree with the reasons given by the Court of Appeal that except for the one issue, that is, on the application of double presumptions by the learned trial judge, the other issues brought up do not have any or sufficient merits. But first the brief background facts of this present appeal.

Brief Background Facts

[6] On 4 July 1996 at about 8.15am Chief Inspector Teoh (PW4) led a team of police officers to conduct a raid at a house No. 6 Tingkat Mas, Green Lane, Penang. PW4 divided the officers with him into two groups. One group was directed to guard the back portion of the house while the other led by PW4 climbed over the front gate and entered the house.

[7] PW4 found the grill and the front wooden door locked. He thus knocked at the door and the respondent who had only a towel on him opened it. PW4 then introduced himself as a policeman to the respondent. Subsequently on the instruction of PW4 the grill was opened by the respondent and during which time PW4 saw a woman (PW6) running away towards the bathroom. She was pursued by PW7 and was brought back to the living room.

[8] PW4 then checked the identity card of the respondent and the Indonesian passport of PW6. PW4 then proceeded to inspect the kitchen which was on the ground floor of the house. He found inside the kitchen cabinet one weighing scale of 'Kwonnie' brand and two plastic packages. One plastic package contained two roles of cellophane tape and another contained plastic bags of various sizes.

[9] Having found those items PW4 asked the respondent: 'Di mana kamu simpan dadah? (Where did you keep the drugs?)'. The respondent replied: 'Di tingkat atas (the first floor)'. This particular event was challenged by the respondent but the High Court Judge was satisfied beyond reasonable doubt that the event did take place.

[10] PW4 then instructed the respondent to take him and his group to the first floor. Everyone went up including PW6. The respondent brought them to the front room upstairs (no. 1 room). The door of the room was opened a little with its key hanging from the knob keyhole. Inside the room the respondent pointed to the dressing table which was in front of the wall cupboard.

[11] PW4 then instructed PW7 to push the dressing table to access to the cupboard. On opening the cupboard PW4 found two plastic bags each containing leafy materials which were later on determined to be cannabis the subject matter of the charge preferred against the respondent. Subsequently the respondent and PW6 were handcuffed. The investigation officer (PW11) then came to the house to investigate including taking photographs of the place. On completion of those tasks the respondent and PW6 together with the bags recovered containing the offensive materials were take