Nik Hashim FCJ:

[1] The respondent was charged for trafficking in dangerous drugs weighing 74.9 grammes of a mixture of heroin and monoacetylmorphines, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") punishable under s 39B(2) of the Act. He was found guilty by the learned High Court Judge (Abdul Wahab bin Patail, J) and was sentenced to death On appeal against the conviction and sentence the Court of Appeal (Mokhtar bin Hj Sidin, Denis Ong Jiew Fook and KC Vohrah JJCA) allowed the appeal and reduced the charge to possession under s 12(2) of the Act punishable under s 39A(2)(d) of the Act and substituted the sentence to 15 years imprisonment to run from the respondent's date of arrest on 11 August 1997 and with minimum whipping of ten strokes. Dissatisfied with the reduction of the charge, the Public Prosecutor has now appealed to this Court.

[2] The facts of the case are that on 11 August 1997 at about 8.30pm Insp Shaiful (SP2) together with a team of police personnel, acting on information, had taken position around the parking area at Campagna Condominium, Meadow Park 2 Jalan 1/130, Happy Garden Kuala Lumpur. At about 9pm they saw a Kancil car with registration number WFC 4906 driven by the respondent with a woman passenger entering the car park. The respondent got out of the car and carried in his right hand an orange plastic bag and entered a lift Five minutes later, the respondent came out of the lift and proceeded to the car carrying the orange bag. As he was about to open the door of the car, PW2 and his team rushed towards the respondent and identified themselves The respondent dropped the plastic bag and he was arrested. His woman companion, Choy Mee Fong (SP3) was detained but was subsequently released.

[3] The plastic bag was examined and in it was found two packages wrapped in newspaper. Each package had a clear plastic wrapping containing a granular and powdery substance. The substance in both packages on analysis by a Government Chemist (SP6) was found to contain a mixture of heroin (18.4 grammes) and monoacetylmorphines (56.5 grammes), dangerous drugs within the meaning of the Act.

[4] In his judgment, the learned trial judge, amongst other things, said:

The dangerous drugs heroin and monoacetylmorphines were in a sealed clear plastic bag wrapped simply in newspaper and placed in the bag. The bag was neither sealed nor tied up The bag is a thin plastic bag. One cannot not know there were paper wrapped packages in the bag. The paper wrapped packages themselves are not sealed. Inside each paper wrapper is a sealed clear plastic bag containing the pink granular and powdery substance. The bag was not tied and sealed in such manner that a carrier cannot know what is really inside Clearly the bag is not packaged in such a manner as to be carried by a person who is being denied knowledge of its contents, and would be in the case of an innocent carrier. In the absence of any evidence to the contrary, the manner of packaging in this case would in the common course of human conduct mean that the carrier knows of the contents. The Court concludes he knew of the thing or substance he was carrying in the bag.

The conclusion that he knew that what he was carrying was a pink granular and powdery substance in a sealed clear plastic bag wrapped in newspaper does not necessarily mean that he knew the nature of the substance as a dangerous drug.

The accused certainly does not appear to be of below average intelligence The fact it was packaged in such nonchalant manner only serves to show that the accused knows the nature of it and either wrapped it and put it in the bag himself to carry it or he is a trusted carrier There is also no evidence he is an addict or consumer which might go some way to explain if he was carrying it for a purpose other than to traffic Its quantity of nearly one and a half kilos of the pink granular and powdery substance adds further to the inference of trafficking: Ong Ah Chuan v