Hashim Yeop Sani CJ (Malaya):

[1] The appeal was against the conviction and sentence of the appellant under s 39B(1) (a) and s 39B(2) of the Dangerous Drugs Act 1952. The charge was that on 14 May 1986 at about 10.50 am at House No 54-B Jalan Perang Taman Pelangi Johor Bahru the appellant was found with 23.71 grammes of mixed heroin and monoacetyl morphine and thereby raising the statutory presumption of trafficking under the Act.

[2] The facts of the case are fairly straightforward. On the above-stated date and time Insp Jasbir Singh (PW2) together with three police personnel raided a room at a house stated in the charge. The room was situated at the rear portion of a flat in a three-storey shophouse. On entering the premises the police personnel proceeded straight to the room referred to in the sketch plan as room B. After knocking at the door the appellant opened the door and Insp Jasbir Singh noticed also a female person sleeping in the said room.

[3] This female person later became the second accused at the trial in the High Court. Insp Jasbir made a search in the room and found a vanity case placed on top of a plastic cupboard. In this vanity case he found several make-up items and also 10 plastic packets containing substance suspected to be drugs. On a further search of the room the police found two black shoe boxes on the floor. In one shoe box one red plastic bag with 26 small plastic packets containing substances suspected to be drugs were found and also 25 plastic packets containing substances suspected to be drugs. The other shoe box was found to contain candles, a spoon, a pen knife and 117 empty plastic bags. In the plastic cupboard in the room the police party recovered among other things a restricted passport in the name of the appellant. The substance suspected to be drugs was sent to the Chemistry Department and the chemist (PW5) certified that they were 20.28 grammes of heroin and 3.43 grammes of monoacetyle morphine.

[4] To cut the matter short at the close of the prosecution case the trial Judge found that the prosecution had proved a prima facie case against the appellant to invoke the presumption under s 37(b) which provides that a person, until the contrary is proved, shall be deemed to be the occupier of any premises, if he has, or appears to have, the care or management of such premises. The learned Judge held that the prosecution could invoke s 37(d) which provides that any person who is found to have had in custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.

[5] As the amount of the drugs involved here is more than 15 grammes the statutory presumption under s 37(da)(iiia) was also invoked. The trial Judge however acquitted the second accused.

[6] It was also found by the learned Judge that the second accused was the girlfriend of the appellant who visited the appellant occasionally at the flat. Insp Jasbir Singh also said in evidence that the identity card bearing the name of the second accused was found in the vanity case although this identity card was not tendered in Court. On the day in question the second accused had spent the night with the appellant.

[7] In his defence the appellant denied knowledge of the drugs. He also denied he had exclusive use of the room since his other friends also frequented the room. The appellant stated that he rented room B at the same time as one Yoong Thien Soong who rented room A in the same premises. The appellant also named several other friends (Kenny, Ah Fun, Ah Tuan and Kucing) who frequented his room because he had an air cooler and a mini compo player in his room. These friends also frequented Yoong Thien Soong's room.