Mohd Azmi Kamaruddin FCJ:

[1] The appellant was called to enter his defence on a charge of trafficking in 25.84 grammes of heroin, an offence under s 39B Dangerous Drugs Act 1952, and at the end of the trial he was found guilty and sentenced to death on the following amended charge:

Bahawa kamu pada 21 Oktober 1985 jam lebih kurang 9.45 malam di sebuah bilik di dalam sebuah rumah No 4, Jalan Siam, Georgetown dalam daerah Georgetown dalam Negeri Pulau Pinang telah mengedar dadah merbahaya iaitu 25.84 gram heroin dan oleh itu kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 (Semakan 1980) dan boleh dihukum di bawah s 39B(2) Akta yang sama.

[2] He has appealed to this Court against his conviction and the death sentence, and advanced fourteen grounds in his petition of appeal against the decision of the learned Judicial Commissioner, YA Tuan Yaacob bin Haji Ismail, given in the High Court at Penang on 7 August 1993. The prosecution evidence in the Court below disclosed that on the date in question, a party of five police personnel led by Inspector Arumugam (PW5) raided a house at no, 4. Jalan Siam, Penang at about 9.45 pm on 21 October 1985. During the house search, the appellant was seen opening the door of a room from inside and quickly withdrew and closed the door the moment Inspector Arumugam identified himself as a police officer. With the help of Detective Sergeant Basiron (PW6), the Inspector managed to push his way in and found the appellant alone in a small room. There was no bed in the room, but on the floor there was a pillow. During the ensuing search of the room, the Inspector recovered under the pillow two packages wrapped in chinese newspapers containing a total of thirteen packets of substance which was later analysed by Mr Ng Hock Sing, the Government chemist (PW1) and found to be heroin as defined in the Dangerous Drugs Act 1952. On recovery of the two packages, the appellant was arrested. Apart from the heroin, the police raiding party also seized from the room a forged NRIC with the name of one Lim Beng Cheng but bearing appellant's photograph, together with other exhibits relating to counterfeiting activities.

[3] The prosecution adduced evidence which disclosed that at the material time the small room was rented by one Chew Kok Seah (PW16) to the appellant. He was staying there alone and had the key to the room, and was acting in such manner during the police raid as to show that he was in possession of the dangerous drugs when considered together with the presumption of knowledge under s 37(g) of the Act. He had the care and management of the room to invoke the presumption under s 37(b) that he should be deemed to be the occupier of the room, and therefore under s 37(g) should be presumed to have knowledge of the drugs concealed under the pillow. Alternatively, as the room was quite small, and since he was staying there by himself, he was clearly at the material time in custody or control of the packages which contained the heroin, so that he should be deemed to be in possession of the dangerous drugs by virtue of s 37(d). The weight of the heroin being more than 15 grammes would also attract the presumption of trafficking under s 37(d) of the Act.

[4] In calling for the appellant to enter for his defence, the learned Judicial Commissioner gave the following reasons in his grounds of judgment:

At the close of the case for the prosecution the Court held there was sufficient evidence adduced by the prosecution for the defence to be called.

The accused was found in the room alone and the drugs were found under a pillow inside the room. There were no other persons in the room. Also the accused was the sole tenant and occupier of the room. This fact was stated by SP16, the chief tenant of house No, 4, Jalan Siam, Penang.

Through the evidence of the chemist (SP1), it was proved that the drugs found, that is P2 & P3 were heroin as defined under the Dangerous Drugs Act. The evidence