Presumption of possession cannot solely establish trafficking; actual possession must be explicitly proven.

Chong Siew Fai CJ (Sabah & Sarawak):

On 26 October 1999 we heard and allowed the appeal of the appellant, quashed the conviction (trafficking 251.06 grammes of cannabis) under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (hereinafter referred to as "the Act") and set aside the death sentence, overruling both the learned trial judge and the Court of Appeal, and substituted therefor a conviction for possession under s. 6 of the Act and sentenced him to ten years' imprisonment with effect from 6 September 1993 (the date of his arrest) and ten strokes of the rotan. We indicated that grounds for the decision would be given later. These we now give.

In the High Court, the charge, as amended, against the appellant was as follows:

Bahawa kamu pada 6.9.1993 jam lebih kurang 8.10 pagi disebuah rumah kedai No. 2, Kampung Pinang Tunggal, Bt 6 1/2 Jalan Klang Lama, dalam Daerah Petaling Jaya, dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu jenis cannabis seberat 251.06 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952, dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.

The amended charge may be translated into English thus:

That you on 6.9.1993 at about 8.10 am. at shophouse No. 2. Kampung Pinang Tunggal, 6 1/2 mile, Klang Lama Road, Petaling Jaya, Selangor Darul Ehsan, had trafficked in dangerous drug, to wit, 251.06 grammes of cannabis, and you have thereby committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under section 39B(2) of the same Act.

Case For The Prosecution

Acting on information received, PW3, ASP Lau Kam Chee assembled a team of police officers and raided shophouse No. 2, Kampung Pinang Tunggal, 6 1/2 Mile, Jalan Klang Lama, Petaling Jaya, Selangor. The police party broke up into two groups PW6, Lance Corporal Abdul Ghaffar bin Haji Tahir, and two other policemen were entrusted to guard the back portion of the shophouse whilst PW3 and his men proceeded to the front of the shophouse. PW3 then entered the shophouse and straightaway arrested an Indonesian man named Ismail bin Mohamad found therein. Meanwhile, whilst proceeding to his assigned position, PW6 peered inside a makeshift and roofless bathroom outside the shophouse and saw the appellant in the process of rolling ganja and sitting cross-legged with an aluminium pot containing ganja leaves on his lap. Upon seeing PW6, the appellant immediately got up and ran inside the shophouse. He then ran out again and crashed through the bathroom wall outside with PW6 in hot pursuit. The appellant was eventually cornered and arrested by PW6 with the assistance of PW9, Lance Corporal Rahim bin Md. Diah. A search was conducted of the bathroom in which a package containing 600 rolls of ganja was found in one corner and another package containing a slab of ganja was recovered under a lamp. The drugs were analysed by a government chemist PW7, Chan Kee Bian, who confirmed that the materials were cannabis as defined in s. 2 of the Act with a combined weight of 549.36 grammes. It would, however, be pertinent to mention here that at the close of the case for the prosecution, the learned trial judge found that the slab of cannabis recovered under the lamp, weighing 298.3 grammes was not in the appellant's possession. Accordingly, the weight of the cannabis in the charge was amended to 251.06 grammes. There was no appeal in respect of this finding.

As regards the amended balance of 251.06 grammes, the learned trial judge found sufficient evidence showing that the appellant had custody and control of the same. He then invoked the presumptions of possession and of trafficking under s. 37(d) and 37(da)(vi) of the Act. (ie, presumption upon presumption) against the appellant, who was called to enter on his defence.

The Defence

The defence of the appellant consisted solely of his own sworn testimony. The appellant denied being in possession of the incriminat