JUDGMENT

Mohamed Zaini Mazlan JCA:

Introduction

[1] The appellant was charged in the Magistrates Court under s 12(2) of the Dangerous Drugs Act 1952 ('DDA 1952'), which is punishable under s 39A(2) of the same Act. He was found guilty and sentenced to four years of imprisonment commencing from the date of conviction, along with four strokes of whipping. He appealed to the High Court , but his appeal was unsuccessful, as the Court dismissed it and upheld the conviction and sentence imposed by the Magistrates' Court .

[2] The appellant subsequently sought leave to appeal under s 50(2) of the Courts of Judicature Act 1964. The legal question presented was:

"Presumption tidak dinyatakan diakhir kes pendakwaan, samada keputusan Mahkamah Majistret tersebut betul ataupun boleh dibangkitkan semula."

Essentially, the legal question was whether the Magistrate Court 's decision was correct since it did not state the presumption at the conclusion of the prosecution's case. The appellant was granted leave, leading to this appeal.

Brief Facts

[3] The charge against the appellant read as follows:

"Bahawa kamu pada 5 July 2018 jam lebih kurang 1.20 tengahari di hadapan bengkel pusat servis kenderaan A&H Automaster Sdn Bhd, Pusat Perindustrian Ringan Senawang, Seremban, Negeri Sembilan telah disyaki memiliki bahan dadah berbahaya jenis Methamphetamine berat bersih 16.13 gram. Oleh itu kamu telah melakukan suatu kesalahan di bawah s 12(2) Akta Dadah Berbahaya 1952 (234) dan boleh dihukum di bawah s 39A(1) di bawah Akta yang sama."

[4] The police team that arrested the appellant had been briefed on his drug trafficking activities prior to his arrest. On the afternoon of 5 July 2018, the police team observed the appellant standing next to his car for ten minutes before apprehending him. During their search of the car, they discovered drugs that were central to the charges against him. The drugs were found in a bag inside the vehicle.

[5] The prosecution called seven witnesses to support their case. The learned Magistrate determined that the prosecution had established a prima facie case and called upon the appellant to enter his defence. The appellant called two witnesses: himself and a colleague from work. In his defence, the appellant denied ownership of the bag and claimed that he did not have exclusive access to the car, as his work colleagues also placed their belongings in it and that the rear doors could not be locked. The learned Magistrate concluded that the issues raised in the appellant's defence appeared to be afterthoughts and ruled that the appellant had not raised a reasonable doubt. The appellant's appeal to the High Court was unsuccessful, prompting him to apply for leave to appeal to this Court on a question of law. On 19 May 2022, this Court granted leave regarding the legal question posed by the appellant.

The Appeal

[6] The primary issue in this appeal is whether the Magistrate's failure to indicate that she has invoked the presumption of possession under s 37 DDA 1952 at the end of the prosecution's case had resulted in a miscarriage of justice for the appellant. The appellant's argument consists of two main points: first, the learned Magistrate did not specify whether she invoked the presumption under s 37(d) at the conclusion of the prosecution's case; and second, she failed to state in her judgment that she had invoked this presumption at the end of the prosecution's case.

[7] The appellant's counsel argued that the appellant would only need to raise a reasonable doubt if the learned Magistrate had indicated that he was in actual possession of the drugs. In contrast, if the presumption of possession under s 37 DDA 1952 was invoked, the burden would be on the appellant to rebut this presumption based on a balance of probabilities. The appellant claimed he suffered prejudice because he could not adequately prepare his defence, not knowing the Magistrate's finding on possession at the end of the prosecution's case.

[8] It was