JUDGMENTBY: MOHAMED AZMI SCJ

(delivering the judgment of the court): The appellant was convicted and sentenced to death on a charge of trafficking in 544.18g of cannabis in the following amended terms:

That you on 12 July 1986 at about 1.20am at Kampong Tengah of Batu

Kikir, in the District of Jempol, in the State of Negeri Sembilan Darul

Khusus, did on your own behalf traffic in dangerous drug, to wit 544.

18g of cannabis and that you have thereby committed an offence under s

39B(1)(a) of the Dangerous Drugs Act 1952 (Rev 1980) and punishable

under s 39B(2) of the same Act.

In this case the learned trial judge had accepted the prosecution evidence that on 11 July 1986 at about midnight a party of four police officers led by Insp Zabidi were on motorcycle crime prevention patrol at Kampong Tengah, Jempol. At about 1.20am (12 July 1986), as the police party was leaving the kampung road for the main road, they came across the appellant walking with another man identified as one Hashim. The learned judge had no reason to disbelieve the evidence of the police that at the material time the appellant was carrying the cannabis in a bag slung across his shoulders, and when Insp Zabidi stopped them and identified himself as a police officer, Hashim ran away while the appellant threw the bag he was carrying into the padi field by the side of the road. Despite being pursued by the police, Hashim apparently managed to escape and could not be traced until today, but the appellant was apprehended after a short struggle although he denied trying to run away.

From the evidence of the government chemist, Mr Ho Peng Hee (PW2) it was established beyond doubt that the 1,773 paper rolls carried by the appellant contained 544.18g of cannabis as defined in s 2 of the Dangerous Drugs Act 1952 (the Act). The prosecution relied on the statutory presumption under s 37(d) of the Act that the appellant, being in custody or control of the bag containing the dangerous drug, should be presumed until the contrary was proved to have been in possession of such drug, and should also until the contrary was proved be deemed to have known that the drug was cannabis. Since the quantity of cannabis recovered exceeded 199g, the prosecution also relied on the statutory presumption under s 37(da) to prove that the appellant was trafficking in the said dangerous drug.

The learned judge was accordingly correct in law in calling for the defence after holding that the prosecution had made out a prima facie case against the appellant which if unrebutted would warrant a conviction.

The appellant gave evidence on oath and called eight other witnesses to prove, firstly, that Hashim was the owner of the bag containing the cannabis and that he was merely an innocent and momentary carrier of the bag, and secondly, it was Hashim and not he who was trafficking in the cannabis. The appellants father (DW4) and mother (DW5) gave evidence to corroborate his story that Hashim was in their house that night watching TV until 11pm when he and the appellant left the house to buy cigarettes. On arrival near the shop, the appellant went to purchase cigarettes whilst Hashim approached a group of three persons -- DW6, DW7 and DW8 who were then sitting under a tree. When the appellant came out of the shop, he approached the three persons, one of whom was his own brother (DWT) and was informed that Hashim had gone away for a while on a motorcycle borrowed from one of them. So the appellant waited there for Hashim to return and had a chat with the three persons. After about one and half hours Hashim returned and was seen carrying a bag. The appellant and Hashim then walked back to the house of the appellants parents. On the way Hashim wanted to urinate and asked the appellant to hold the bag for him momentarily. It was soon after this that police appeared on their motorcycles. He saw Hashim running away and he himself felt frightened and threw the bag away

Click Here to Read the rest of this document