Summary of points decided - as guidelines only and not to be quoted verbatim.

1. In order to determine whether the Supreme Court’s respective ratio decidendi in Adetunjiand Lin Lian Chen ran counter to each other, it is important to examine the distinguishable facts.

2. At the close of the case for the prosecution, the statutory presumptions under Section 37 (d) and (da) had been successfully raised by theprosecution in Adetunji but not in Lim Lian Chen. This being the case, the Supreme Court is correct in holding in Adetunji, that once the statutory presumption has arisen, it is untenable that a cautioned statement, however exculpatory, could, without othercogent evidence found sufficient basis to discharge such onus, since at that stage, the accused had not given evidence himself and his explanations could not be tested by cross-examination.

3. A statutory presumption is a presumptionof adverse positive effect on the accused which placed onthe latter’s shoulders an onus to affirmatively discharge.

4. In Lin Lian chen, not only no statutory presumptions under Section 37 (d) had been raised, but there were also othercogent evidence appearing in the case for the prosecution which went to show that the explanation in the cautioned statement as to the circumstances whereby the accused knew nothing of the offending drug exhibits, could reasonably and probably be true. Suchconsideration by the court to arrive at a decision to acquit the accused upon the “reasonable and probable“ test, is permissible even at the close of the prosecution case, due to the absence of any presumptions raised by the prosecution.

5.Although I agree with counsel that the exhibits P4A and P5A were kept (as least at the stage when P.W.7 took over as storekeeper) in a very cavalier manner, thus permitting accessibility to persons other than the storekeeper on duty, yet the fact that at thisstage of negligent handling of the drug exhibits, the same were sealed with the Jabatan Kimia seal and - according to the court’s own observation - at least three of the four seals were still virtually intact, the court is satisfied that the exhibits hadnot been tempered with during this material period.

6. The non-marking or non-initialling of the drug exhibits is by itself not fatal to the prosecution case, if the court is satisfied that at every stage of the handing of the drugexhibit, the same is accounted for and is securely kept. However, where there are no markings or initials to give the offending items an identity of its own, the court must examine wih special care, in order to be satisfied beyond doubt (even at the stage ofclose of the prosecution case), that there is not even a single serious gap in the chain of handling the offending item. This gap would, upon the established authorities, be fatal to the prosecution case.

7. In a capital charge it is unsafeto allow the identity of the drug exhibits to be established through a process of linkage or by close association; rather the drug exhibits themselves ought to be marked and sealed, unless such default is negated when it is shown to the court’s satisfactionthat strict conditions as to their handling at every stage has been fulfilled.

8. Again, in a capital charge it is not permissible for this court to presume that P.W.11 replaced P4A and P5A back into his cabinet and locked them soon or immediatelyafter the photography session by P.W.2. Such presumptins are not substitute for clear, direct and positive evidence of it’s safe custody, a fortiori in a capital charge.

Grounds of Judgment of VincentNg Kim Khoay, J.C

The accused was charged as follows:

“Bahawa kamu pada 6hb. Februari, 1987 jam lebih kurang 9.30 malam di Pengkalan Raja Tun Uda dalam Daerah Georgetown, di dalamNegeri Pulau Pinang, telah mengedar dadah berbahaya, iaitu heroin seberat 122.6 gram dan oleh itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B (1)(a) Akta Dadah Berbahaya 1952 (Semakan 1980) dan boleh dihukum dibawah Seksyen 39B (2) Akta yan