JUDGMENT

Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] There are two appeals before us this morning. One is by the prosecution. The other is by the accused. The background to these appeals is as follows.

[3] On 29 June 2001, at about 2.30pm PW5 (Chief Inspector Roslan bin Hussin) acting on information that he received, took a team of police officers to an apartment block at Taman Miharja. On arrival the police personnel took their position near a parking lot close to Lot 25 B 1, Condo Sri Miharja. After about 30 minutes had passed, PW5 saw a Chinese male, later identified as the accused, emerge from block 25 B 1. He saw the accused head towards a motorcar No. WFP 2429. According to PW5 and his fellow officer PW6 (Detective Sub-Inspector Teoh Soy Lim) the accused carried a red plastic bag (exh. P15) in his left hand. The accused then entered the car which was proven to belong to him. At this juncture, PW5 and his team went to the car, asked the accused to get out of it and identified themselves as police personnel. PW5 then administered to the accused the caution prescribed by s. 37A of the Dangerous Drugs Act 1952 ("the Act"). The accused remained silent. The car was searched. The police recovered a red plastic bag from the front passenger's seat. The bag was opened and from it was recovered a package wrapped in a Chinese newspaper (exh. P16) and a box containing something wrapped in a coloured wrapper (exh. P17). Subsequent chemical analysis of the material found in these two packages showed that exh. P16 contained 1000 pills of Methylenedioxymethamphetamine (exh. P19 and exh. P21) and exh. P17 contained 1000 pills of the same drug (exh. P23), a proscribed drug under the Act. The accused was later charged and tried for two offences: first, for trafficking in exh. P19 and P21 under s. 39B(1)(a) of the Act; second for being in possession of exh. P23 under s. 12(2), punishable under s. 39A(1) of the Act. At the close of the case for the prosecution the learned judge held that a prima facie case of trafficking had not been made out on the first charge. He accordingly reduced the first charge to one of possession and called upon the accused to make his defence to both charges. At the conclusion of the whole case, the accused was convicted and sentenced to 13 years imprisonment in respect of the first charge and two years in respect of the second charge, the sentences to run consecutively. The public prosecutor being dissatisfied with the reduction of the charge has appealed and asked that the judge's decision be reversed. The complaint is that the learned judge should have called for the accused's defence on the original first charge of trafficking. The accused also being dissatisfied with the learned judge's decision has appealed asking for his conviction to be quashed on both charges.

[4] Before us a number of points were taken by both sides, most of which we find it unnecessary to deal with. In our judgment there are two issues which are germane to these appeals. The first is whether the prosecution had at the close of its case established a prima facie case of trafficking on the first charge. The second issue is whether at the close of the whole case the learned judge was correct in finding the accused guilty of possession of the drugs set out in both charges.

[5] Taking the first issue, the gist of the public prosecutor's case is that the learned judge failed to draw the proper inferences from the totality of the evidence led by the prosecution during its case. The learned deputy who argued the appeal submitted that had the learned judge properly appreciated the evidence of PW5 and PW6 he would have drawn the irresistible inference that the accused was trafficking in the drugs in question. These witnesses had seen the accused emerge from the building in question carrying exh. P15 which was found to contain drugs. He had placed it in his car and would have driven off but for the intervention of the police. Thes