Possession of drugs requires both control and knowledge; mere custody is insufficient to establish possession under the Dangerous Drugs Act.

JUDGMENT

Azizah Nawawi JCA:

Introduction

[1] The charges framed against the Appellant are as follows;

First Charge:

"That you on 3 October 2017, at about 5:20pm. at the car garage of the Narcotic Investigation Department, Sarawak Police Contingent Headquarters in the District of Kuching, in the State of Sarawak, did traffic in dangerous drugs, to wit 482.8 grams of Methamphetamine, thereby you have committed an offence under para 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under subsection 39B(2) of the same Act."

Second Charge:

"That you on 3 October 2017, at about 5:20pm. at the car garage of the Narcotic Investigation Department, Sarawak Police Contingent Headquarters in the District of Kuching, in the State of Sarawak, has in your possession dangerous drugs, to wit, 111.86 grams of Ketamine and you thereby committed an offence under subsection 12(2) of the Dangerous Drugs Act 1952 and punishable under subsection 12(3) of the same Act."

[2] The appellant was convicted by the Kuching High Court for trafficking of drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and was sentenced to death by hanging. This appeal is against the said conviction and sentence.

The Prosecution Case

[3] From the learned Judge's Grounds of Decision, the prosecution case is that on 30 September 2017, based on information received in relation to drug trafficking activities, a team of police officers led by PW2 (Inspector Thomas anak Until) conducted a raid at the Spring Shopping Mall car park area.

[4] Upon reaching the car park area, PW2 and his team made a surveillance and at about 10.00 pm they saw a car with registration number SAC9939D, a white Toyota Hilux (the said Toyota Hilux).

[5] The police party approached the car and saw one male Chinese and one female Chinese inside the car. The male Chinese was later identified as the Appellant. The Appellant and the female Chinese, who is his wife were arrested. PW2 then administered the cautionary words under s 37B(1)(b) of the Act and asked the Appellant whether he kept any drug. The Appellant answered in the affirmative.

[6] After that the Appellant led the police to an apartment (the said apartment) ie at L632 and L633, Level 2, Block 5, Unit A27, Jalan Tun Jugah, Stacks 128, Kuching (the said apartment unit). At the said apartment unit, the police found a substantial amount of drug, that is, a total of 627.38 grammes of Ketamine and 2.77 grammes of Nimetazepam.

[7] These drugs are the subject matter of the charges in cases No KCH-45A-2/1-2018, KCH-45A-3/1-2018 and KCH-45A-6/3-2018. The drugs were then seized and together with the Appellant were brought to the police station for further investigation. The said Toyota Hilux was also brought and parked at the parking lot of Narcotic Investigation Department, Kuching. Subsequently, the Appellant had been discharged and acquitted on these charges.

[8] On 3 October 2017, in the course of the investigation, PW2 received information from the Appellant that there are drugs in the said Toyota Hilux. In the presence of the Appellant, the police conducted a thorough check on the vehicle. Upon checking, the police found the drugs, hidden behind the door panel at the driver's door, behind the door panel of the passenger's door and from inside the gear compartment.

[9] From the evidence of PW2, PW3, PW4 and PW8, the drugs found from inside the said Toyota Hilux are as follow:

(i) From behind the door panel at the driver's side, a total of 64 transparent plastic packet (exhibits P27D (1) - (64)) each containing crystalline substance suspected to be syabu.

(ii) From behind the door panel at the passenger's side, a total of 53 transplant plastic packet (Exhibit P28D (1) - (22) and P28E (1) - (131)) each containing crystallized substance suspected to be syabu.

(iii) From beneath the gear stick compartment, 10 transparent plastic packets (Exhibit P27D (1) - (10)) each containing white substance suspected to be ketamine.

These drugs are the subject mat