Zulkefli Makinudin J:

Introduction

[1] The appellant was charged in the High Court at Kuala Lumpur on the following two charges under the Dangerous Drugs Act 1952 ("the Act") :

First Charge

Bahawa kamu, pada 10 Januari 2001, jam lebih kurang 1.00 tengahari, di rumah nombor 3-1-15, Green View Apartment, Jalan 8/40, Taman Pusat Kepong, Kuala Lumpur, Wilayah Persekutuan, telah mengedar dadah berbahaya, iaitu 224.65 gram cannabis, oleh itu kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta yang sama.

Second Charge

Bahawa kamu, pada 10 Januari 2001, jam lebih kurang 1.00 tengahari, di rumah nombor 3-1-15, Green View Apartment, Jalan 8/40, Taman Pusat Kepong, Kuala Lumpur, Wilayah Persekutuan, telah memiliki dadah berbahaya iaitu 20.73 gram methamphetamine, oleh yang demikian kamu telah melakukan satu kesalahan di bawah s 12(2) Akta Dadah Berbahaya dan boleh dihukum di bawah s 39A(1) Akta yang sama.

[2] The appellant was found guilty by the High Court in respect of both the charges. He was sentenced to death on the charge of trafficking of cannabis under the first charge and was sentenced to three years imprisonment on the charge of being in possession of methamphetamine under the second charge. The appellant appealed to the Court of Appeal against the decision of the High Court. The learned judges of the Court of Appeal dismissed the appellant's appeal in respect of both the charges. The appellant now appeals to this Court against the decision of the Court of Appeal affirming his conviction and sentence with regard to the trafficking charge.

The Case For The Prosecution

[3] The relevant facts of the case for the prosecution are as follows:

[4] On 10 January 2001 PW7 (ASP Mohd Rafique) and a team of three other police officers raided an apartment at No 3-1-15, Green View Apartment, Jalan 8/40, Taman Pusat, Kepong, Kuala Lumpur. When PW7 gained access into the said apartment he saw the appellant seated on the floor of the rear room. PW7 said that he saw the appellant was then rolling dried leaves suspected to be cannabis. The dried leaves were placed on a newspaper on the floor (exh P6A). About one foot away from the appellant was a box (exh P8). Inside the box were 40 plastic packets containing dried leaves suspected to be cannabis. From the trouser's pocket of the appellant, PW7 found a Dunhill cigarette box (exh P7A). Inside it were five plastic packets (exh P7B (1-5)) of syabu and four plastic packets (exh P7B (6-9)) containing ninety seven pills suspected to be ecstasy. The dried leaves were confirmed by the chemist to weigh 224.65 grams of cannabis, the subject matter of the first charge. The contents of the nine plastic packets in the cigarette box were found to contain 20.73 grams of methamphetamine, the subject matter of the second charge.

The Appeal

[5] Before this Court the appellant advanced three grounds of appeal as follows:

(1) There is doubt as to the identity of the cannabis in that the nett weight exceeded the gross weight and as such it cannot be said that the prosecution has proved the offence of trafficking beyond reasonable doubt;

(2) The learned trial judge erred in law in that he did not apply the same approach in determining whether possession had been proven in respect of the cannabis and the methamphetamine; and

(3) Alternatively, in respect of the cannabis even if there was possession, possession was passive.