Arifin Zakaria FCJ (delivering judgment of the court):

BACKGROUND

The respondent/accused was charged with an offence of trafficking in dangerous drug under s 39B(1)(a) of the Dangerous Drugs Act 1952

MATERIAL FACTS

On the early morning of 23 March 1996, acting on information received, a police team headed by ASP Baljeet Singh (SP8) from the Narcotics Division of the Police District Headquarters, Dang Wangi, Kuala Lumpur proceeded to the railway station at Jalan Sultan Hishamuddin, Kuala Lumpur. Upon arrival at the station, he noticed a taxi bearing registration No HW 9677 parked in front of the public telephone booth. He then stopped his car right in front of the taxi, thus preventing the taxi from getting away. SP8 and his men then approached the taxi. He saw two men in the taxi, one seated in the driver's seat and the other seated in the front passenger seat. A search was conducted on the two men. A small packet and RM1,200 were found on the taxi driver. On searching the respondent, a newspaper package was found tucked in his waist containing small plastic packets. From the right side pocket of his track top, another newspaper package was found containing 50 small plastic packets and from the left side pocket three small newspaper packages were found containing 30 small plastic packets. From his trousers pockets, a total of 40 small plastic packets were found. A sum of RM9,000 was also found on him.

Upon examination, the chemist confirmed that the small plastic packets contained heroin having a net weight of 62.09g. The respondent was accordingly charged with trafficking in 62.09g of heroin.

It is common ground that in finding the respondent guilty of the offence as charged, the learned trial judge had invoked the two presumptions under s 37(d) and s 37(da) of the Act. The Deputy Public Prosecutor, En Wong Chiang Kiat, conceded that by so doing the learned judge had transgressed the rule against double presumptions as enunciated in Muhammed bin Hassan v Public Prosecutor

Furthermore, the basic or primary facts needed to raise ‘deemed’ possession and ‘deemed’ knowledge unders 37(d) of theAct and those required to raise ‘presumed … trafficking’ under s 37(da) are different. To come to the presumptions of possession and knowledge under s 37(d), one need only to arrive at a finding of having had ‘in custody or under … control anything whatsoever containing’ the drug (as opposed to the drug itself) whereas to arrive at the presumption of ‘trafficking’ under s 37(da), a finding of being ‘in possession’ of the drug is necessary (in addition, of course, to proof of the relevant minimum quantity specified). In view of the above differences, it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption as contended by the learned deputy public prosecutor — a construction that ought to be adopted only if, upon the wordings of the two subsections, such an intention of the Parliament is clear, which, in our opinion, is not.

In our view, to constitute ‘possession’ under s 37(da) of the Act, so as to be capable of forming one of the ingredients thereunder thereby giving rise to the presumption of trafficking, there must be an express affirmative finding (as opposed to legal presumption) of possession as understood in criminal law, based on evidence.

Further down at p 291, he added:

Having considered the submissions of counsel and the learned deputy public prosecutor, and the law applicable including the rules of construction of penal statutes, we were of the view that the word ‘found’ in s 37(d) must bear the same meaning as the word ‘found’ in s 37(da). Both require evidential materials in attaining proof thereof and are vastly different from the word ‘deemed’ employed in the said s 37(da).

In our view, on the wording of s 37(da) as it stands, to read the presumption of possession (ie possession as understood in criminal law, with knowledge) provided in s 37(d) into s 37(da) so as to invoke against an