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JUDGMENT
[1] The 1st accused and the 2nd accused are charged as follows:
[2] That you, on the 22 July 2008, at about 12.10pm, at the roadside of Jalan Sulaman Bypass, Menggatal, in the District of Kota Kinabalu, in the State of Sabah, in furtherance of the common intention of you all, did on your own behalf traffic in a dangerous drug to wit 867.1 grammes of Cannabis and that you have thereby committed an offence under
[3] In ; [2003] 2 MLJ 65; [2003] 1 CLJ 734; [2003] 2 AMR 89, it was held that at the end of the prosecution's case the duty of a trial judge sitting alone must determine as a trier of fact whether the prosecution had made out a prima facie case. In coming to that decision, he must subject the prosecution evidence to a maximum evaluation. See also: ; [2005] 2 MLJ 301; [2005] 1 CLJ 85; [2005] 1 AMR 321 and ; [2005] 6 MLJ 393; [2006] 1 CLJ 457; [2005] 6 AMR 203.
[4] One of the essential ingredients of this charge against the accused persons is that of possession of the cannabis. The ingredient of possession in law has been established by a long line of cases. Possession, in order to incriminate a person, must have the following characteristics. The possessor must know the nature of the thing possessed, must have in him a power of disposal over the thing, and lastly must be conscious of his possession of the thing. If these factors are absent, his possession can raise no presumption of means rea, without which (except by statue) possession cannot be criminal: ; [1949] 1 MLJ 54.
[5] Mere possession is one thing and possession with means rea is another. Possession which incriminates must have certain characteristics. The possessor must be aware of his possession, must know the nature of the thing possessed and must have the power of disposal over it. Without these characteristics, possession raises no presumption of means rea. Without means rea, possession cannot be criminal: ; [1968] 1 MLJ 158.
[6] The prosecution's case showed that on 22 July 2008 at about 10.30am, Inspector Nicodemus Branking, who was attached to the narcotic section of the Kota Kinabalu District Police Headquarters, received information from an informer that a female person wearing a chocolate-colour dress and a male person would be bringing a plastic packet suspected to contain drugs and walking along Jalan Sulaman Bypass, Menggatal, Kota Kinabalu. He assembled a group of officers, briefed them on the information and they went in four vehicles looking for the 2 suspects along Jalan Sulaman Bypass, Menggatal.
[7] At the Jalan Sulaman Bypass, they saw a female (1st accused) and a male (2nd accused) waiting at the roadside. The 1st accused was standing while the 2nd accused was squatting. There was a blue plastic bag in front of the 2nd accused. Insp Nicodemus asked his team to stop some distance from the two, briefed his team on what to do and proceeded to the place where the 2 accused were first seen, to detain them. At the place, Insp Nicodemus introduced himself as a police officer to the accused persons. The two accused, upon seeing Insp Nicodemus and the rest of his officers rushing out of their vehicles towards them, tried to run away.
[8] Insp Nicodemus said that the 2nd accused had at that time stood up and was holding the blue plastic bag. Before the arrests were effected, there was a brief struggle between the two accused and the officers making the arrest. Insp Nicodemus said that the 1st accused took the blue plastic bag from the left hand of the 2nd accused, used it to hit the back of a policeman who was trying to arrest the 2nd accused, and then threw it away on the ground. Insp Nicodemus and his officers managed to arrest the two accused persons after the brief struggle.
[9] Insp Nicodemus said that he picked up the blue plastic bag thrown away by the 1st accused. He proceeded to open the blue
