Arifin Zakaria FCJ:

Background

[1] The respondent/accused was charged with an offence of trafficking in a dangerous drug under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") in the High Court at Kuala Lumpur He was convicted and sentenced to death by the said Court. On appeal to the Court of Appeal, the conviction and sentence was set aside and substituted with an offence of possession under s 12(2) of the Act and sentenced to 16 years imprisonment and 10 strokes of the rotan. The prosecution now appeals to this Court against the decision of the Court of Appeal.

Material Facts

[2] On the early morning of 23 March 1996, acting on information received, a police team headed by ASP Baljeet Singh (SP8) from the Narcotics Division of the Police District Headquarters, Dang Wangi, Kuala Lumpur proceeded to the railway station at Jalan Sultan Hishamuddin, Kuala Lumpur Upon arrival at the station, he noticed a taxi bearing registrationNo: HW 9677 parked in front of the public telephone booth. He then stopped his car right in front of the taxi, thus preventing the taxi from getting away. SP8 and his men then approached the taxi. He saw two men in the taxi, one seated in the driver's seat and the other seated in the front passenger seat. A search was conducted on the two men. A small packet and RM1,200 were found on the taxi driver On searching the respondent, a newspaper package was found tucked in his waist containing small plastic packets. From the right side pocket of his track top, another newspaper package was found containing 50 small plastic packets and from the left side pocket three small newspaper packages were found containing 30 small plastic packets. From his trousers pockets, a total of 40 small plastic packets were found. A sum of RM9,000 was also found on him.

[3] Upon examination, the Chemist confirmed that the small plastic packets contained heroin having a net weight of 62.09 grammes. The respondent was accordingly charged with trafficking in 62.09 grammes of heroin.

Furthermore, the basic or primary facts needed to raise 'deemed' possession and "deemed' knowledge under s 37(d) of the Act and those required to raise 'presumed... trafficking' under 37(da) are different. To come to the presumptions of possession and knowledge under s 37(d), one need only to arrive at a finding of having had 'in custody or under... control anything whatsoever containing' the drug (as opposed to the drug itself) whereas to arrive at the presumption of 'trafficking' under s 37(da), a finding of being 'in possession' of the drug is necessary (in addition, of course, to proof of the relevant minimum quantity specified). In view of the above differences, it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption as contended by the learned deputy public prosecutor - a construction that ought to be adopted only if, upon the wordings of the two subsections, such an intention of the Parliament is clear, which, in our opinion, is not.

In our view, to constitute 'possession' under s 37(da) of the Act, so as to be capable of forming one of the ingredients thereunder thereby giving rise to the presumption of trafficking, there must be an express affirmative finding (as opp