JUDGMENT

KC Vohrah JCA:

The appellant was charged in the Shah Alam High Court that he together with another person had trafficked in 86.47 grams of heroin on 13 September 1990 at about 1.45am at house No. 1, Jalan Taman Melur, Ampang, Hulu Langat, Selangor, an offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and punishable under s. 39(B)(2) thereof.

At the close of the prosecution's case the High Court acquitted the appellant's female companion and called upon him to make his defence on the trafficking charge. The appellant elected to make his defence on oath. The court convicted him on the trafficking charge.

The High Court in convicting the appellant had principally relied on the cautioned statement made by the appellant to a Chief Inspector. That statement contained an admission that the police had examined his room and that in his wooden cupboard which he had kept locked the police found plastic packets of heroin. He admitted having previously sold several packets from the lot. He also admitted that a weighing machine was found in his cupboard.

The mainstay of the grounds supporting the appeal relates to the appellant's challenge to the admissibility of the cautioned statement and the reliance placed on it by the High Court. The appellant's next ground, relying on Muhammed bin Hassan v. PP[1998] 2 CLJ 170, is that if the cautioned statement is ruled inadmissible by the Court of Appeal then the conviction cannot be sustained as the High Court had relied on the presumption of trafficking under s. 37(da) of the Act which relies on the possession of 15 grams or more of heroin for it to be invoked when the court could not have relied on the presumption of possession of the heroin under s. 37(d) on the basis the heroin was found in his room as there was no evidence aliundeto show that he had the possession of the heroin.

To understand the nature of the challenges made it would be necessary to narrate the relevant undisputed facts of the case.

Undisputed Facts

On 12 September 1990 at about 9.45pm a surveillance team of police personnel led by Inspector Hassan Jalaluddin (PW4) at Jalan Pandan 1, Ampang, saw a Chinese man, later identified as the 1st accused and now the appellant, approaching the area of the surveillance. PW4 and his team approached the appellant whereupon he ran away. He was then chased, apprehended and arrested. The appellant subsequently led PW4 and his team to a car. In the car was a Chinese woman, later identified as the 2nd accused, sitting in the front passenger seat. She was also arrested.

From the 2nd accused was seized a bunch of seven keys. Both the appellant and the 2nd accused were brought to the office of PW4 at the Head Office at Jalan Hang Tuah.

At about 1.45am on 13 September 1990 PW4 with his team, the appellant and the 2nd accused proceeded to a double storey link house at No. 1, Jalan 25, Taman Melur, Ampang, Hulu Langat, Selangor.

Using keys from the bunch of keys which had been seized PW4 unlocked the padlock securing the gate leading to the compound of the house and the other locks securing the front door and the grille thereat and they all entered the house.

PW4 then opened the door of the back room on the 1st floor with one of the keys from the bunch and entered the room.

Inside the room was a cupboard and using one of the keys from the bunch PW4 opened the cupboard. He found at the bottom of the cupboard three bags and a box. The three bags contained plastic packets wrapped in Chinese language newspaper bundles with some loose packets in one of the bags. Inside the box was a weighing machine. All the packets held a substance which on analysis by the Government Chemist (PW1) was found to contain 86.47 grams of heroin.

In the same room was found a bag in which were the International Passports of the appellant and the 2nd accused. Also found in the room were, inter alia, the lease agreement for the house naming the appellant as the tenant and rental receipts in his name.

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