The court ruled that a presumption of trafficking cannot be made without an explicit finding of possession based on evidence.

Shaik Daud Ismail JCA:

This was an appeal from the decision of the Temerloh High Court which had convicted the appellant on 15 August 1995 for an offence of trafficking in 4,105 grams of cannabis, an offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and sentenced him to death under s. 39B(2). The appellant was arrested on 13 January 1991 at about 8.30pm by three police personnel who were on routine crime prevention rounds in Taman KSM Mentakab, Pahang. On entering a lane, the police personnel saw the appellant carrying two packages one in each hand. When the appellant came near them he stopped and when one of the personnel identified himself as the police, the appellant allegedly turned around and tried to run and in the process threw both the packages in the direction of a drain. The appellant was apprehended and the packages recovered. Both the packages were found to contain dried plant material suspected to be cannabis.

The contents of both packages were analysed by the chemist who testified that the dried plant material amounting to 4,105 grams were cannabis as defined in s. 2 of the Act.

At the hearing of the appeal before us, learned counsel for the appellant raised two important issues. Firstly, he argued that at no time did the learned judge make a finding that the appellant was in possession of the alleged cannabis. What the learned judge held was that as he found that the appellant was in custody and control of the two packages therefore the presumption under s. 37(d) of the Act applies and he was deemed to be in possession of the cannabis. Having made that finding he then invoked the presumption under s. 37(da) of the Act. In other words he used the presumption of possession under s. 37(d) of the Act to invoke the presumption of trafficking under s. 37(da) of the Act. Therefore the learned judge fell into the same error as the learned judge in Muhammad b. Hassan v. PP .

In that case the issue is the same ie, whether the presumption of trafficking under s. 37(da) of the Act could be properly invoked once a presumption of possession under s. 37(d) of the Act had been established. The Federal Court held that:

3(a) As both subsections (d) and (da) of section 37 of the Act are penal provisions, they must be strictly construed and not extended beyond their clear meaning. Since the two subsections are clear and unequivocal their meanings must be determined from the language employed and must mean exactly that they say.

Any ambiguity or slip would be a matter for the legislature to consider.

(b) There is a clear undeniable distinction between the word "deemed" used in section 37(d) of the Act and the word "found" employed in section 37(da) of the Act. Under section 37(d) there is no need to prove actual possession or knowledge, as upon proof of custody or control by the prosecution, the court must in law draw a presumption of possession and knowledge in favour of the prosecution, unless the other party proves the contrary.

On the other hand, the word "found" in the opening phrase of section 37(da) connotes a finding made by the court after a trial by the court.

(c) The basic or primary facts needed to raise "deemed" possession and "deemed" knowledge under section 37(d) of the Act and those required to raise "presumed ... trafficking" under section 37(da) are different. In order to invoke the presumption of possession and knowledge under section 37(d), one needs to only prove having had "in custody or under ... control anything whatsoever containing" the drug whereas to arrive at the presumption of trafficking under section 37(da), proof of being "in possession" of the drug is necessary.

(d) In view of the differences between the two subsections, it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption. To constitute possession which would give rise to the presumption of "trafficking" under section 37(da) there must be an express affirmat