KC Vohrah JCA:

The appellant (the accused) was charged with trafficking in 2,828 grammes of cannabis at Jalan Sabindo Satu, Tawau, Sabah on 26 January 1994 in contravention of s. 39(B)(1)(a), punishable under s. 39B(2) of the Dangerous Drugs Act 1952 (the Act). The High Court convicted him on the charge and sentenced him to death. The accused appealed. We set aside the conviction on trafficking and substituted therefor a conviction for the possession of the said drug. We now give our reasons.

This Sabah High Court case was decided in 1994, well before the Federal Court case of Muhammed bin Hassan v. PP[1998] 2 CLJ 170 which decided in 1997 that it is wrong to rely on a presumption of possession of a dangerous drug under s. 37(d) of the Act to raise a presumption of trafficking in the drug. Here it is obvious that the High Court, on hindsight, was wrong in invoking a presumption of trafficking upon a presumption of possession of the cannabis. The other grave infirmity was that the judge had allowed inadmissible and irrelevant evidence to be adduced in evidence which was prejudicial to the accused and which on the basis of the Federal Court case of Alcontra a/l Ambrose Anthony v. PP[1996] 1 CLJ 705 shows that its high prejudicial value could in effect have been to prejudice the case for the accused when he was called to make his defence on the trafficking charge.

The facts showed that acting on information a police party led by Inspector Hamzah bin Ahmad (PW3), the sole witness to give evidence on the surveillance and ambush on 26 January 1994, laid an ambush at Sabindo Satu Building, Tawau in the area of the staircase at 88, Beauty Saloon Sabindo at about 7pm. At 7.40pm he saw the accused climbing the stairs towards the place of ambush. He was carrying a plastic bag. An officer of the police party shouted "Police" and arrested the accused. PW3 saw that after the arrest the accused threw the plastic bag into a corridor. PW3 retrieved the black plastic bag which contained two packages. PW3 tore a bit of the two packages whereupon dried leaves were exposed. The accused was then taken to the Anti-Narcotic Branch office at Tawau together with the bag and the contents. The Government Chemist (PW1) who examined the two "brownish tape" packages that had been seized found each of them to contain a slab of compressed plant material. He conducted an analysis of the plant material and found the material to be cannabis as defined under the Act. Altogether the cannabis weighed 2,828 grammes.

During the trial a cautioned statement made by the accused was adduced during the prosecution stage of the trial. It was an exculpatory statement by the accused. To be noted is that the statement contains the particulars of the accused which showed he was a "Suluk Bajau" and that he was a Filipino. In connection with the accused being a "Suluk Bajau" and a Filipino, one has to take into account the statement of Inspector Hamzah (PW3), which obviously is irrelevant and inadmissible and which he gave in evidence:

I was told of an information by Detective Gusibih B. Ladat, relating to a male person, believed to be a Phillipine, Bajau, who wanted to sell cannabis in the area of 88, Beauty Saloon, Sabindo.

This hearsay statement obviously refers to the accused and is highly prejudicial. (see Alcontra). We will come to this statement later.

At the close of the prosecution case the learned judge was of the opinion that the accused was "in custody or control of the cannabis" and applied the presumption under s. 37(d) of the Act that the accused "knew he was carrying cannabis". But the learned judge did not make a finding from the facts adduced that the accused knew the nature of the drug to be cannabis; he relied instead on the presumption under s. 37(d). The learned judge in other words found the accused to be in possession of the cannabis by virtue of the presumption. He then invoked the presumption of trafficking (under s. 37(da)) since the weight of