Denis Ong JCA:

This is an appeal against the decision of the High Court at Alor Setar convicting the appellant of trafficking in 2,125.4 grams of heroin on his own behalf under s. 39B of the Dangerous Drugs Act 1952 (Act 234). After hearing arguments from Mr. V. Sithambaram of learned counsel for the appellant and without hearing the learned deputy public prosecutor, we dismissed the appeal and affirmed the conviction and sentence of the High Court. We now give our reasons.

The following evidence was adduced by the prosecution at the trial. On 30 April 1993 the appellant, a male Chinese from Hong Kong and holder of a British Passport entered Malaysia overland from neighbouring Thailand in a van driven by a Thai national named Uthai Onkhong. In the same van were also eleven Caucasian visitors to Malaysia. The appellant was dressed in a jersey and a pair of trousers. Upon a full body search of the appellant at the immigration control post at Bukit Kayu Hitam, Kedah on the Malaysian side of the border with Thailand, he was discovered by L/Cpl. Abdul Rahim bin Hashim (PW4) to be carrying a total of 17 packages tucked in the armguards, thighguards and panties that he wore under his jersey and trousers at the time of the search. Upon removal of the wrappers, these packages were found to contain small rectangular slabs of compact materials whitish in colour, suspected to be heroin, a dangerous drug listed in Part III of the First Schedule to Act 234. Consequently they were seized and the appellant arrested. Upon analysis of the materials by Shaharudin b. Hassan (PW3) the Government chemist, they were indeed found to be heroin of a nett weight of 2,125.4 grams.

On such evidence, the trial court made findings of fact that the appellant was found to have had under his control at the time and place stated in the charge the 17 packages and further that they contained 2,125.4 grams of heroin. It thus ruled that s. 37(d) and (da) applied. The appellant was thus presumed to have been in possession of the dangerous drug contained in the 17 packages and to have known the nature of the drug. Since the drug was heroin and well above 15 grams in weight, the appellant was presumed under s. 37(da)(i) to be trafficking in heroin.

The appellant did not deny that he had physical possession of the 17 packages at the time and place stated in the charge. His defence was that he did so under duress. He denied that they contained dangerous drug. He denied knowledge of the heroin found in the 17 packages. He believed that such packages contained gold dust as he was informed by one Ah Meng in Bangkok. He explained on oath how he came to have possession of the 17 packages. He said that it all started on 18 April 1993 at about 2am when four men came to his apartment on the second floor Block E, 59 Wan Hong Street, Kowloon, Hong Kong where the appellant lived with his mother named Mah Chor Oh and two sisters one of whom was named Chu Kwai Fong (DW2). One of the four men, known to him as Ah Seng, demanded from his mother immediate repayment of a loan of HK$50,000 plus interest totalling HK$100,000 which loan his mother took from Ah Seng to pay for the cost of eye surgery performed on his maternal grandmother. As his mother was unable to pay immediately, Ah Seng, who was armed with a pistol, threatened to kill them all. He reasoned with Ah Seng that the debt was monetary and there was no necessity to take their lives. Ah Seng then pointed the pistol at him and said that to spare their lives, the appellant was required immediately to follow him and his men. The appellant refused and was hit by Ah Seng with the butt of the pistol. He was told to pack immediately and to bring along his passport and follow Ah Seng and his men; otherwise the entire family would be killed. The appellant said that he was very afraid at that moment - afraid that his mother, his two sisters and himself would be killed. In the main, this portion of the evidence of the appellant