Prosecution must prove intent to traffic beyond reasonable doubt; mere possession is insufficient to establish trafficking.

The Charge

[1] The person charged in this case is a 35 year old woman namely Herlina Purnama Sari, an Indonesian national (the respondent). She was charged in the following terms:

"Bahawa kamu pada 30 November 2012, lebih kurang jam 5.20 pagi di Kaunter Pendaftaran Masuk Penerbangan Antarabangsa No. R22, Terminal Pengangkutan Tambang Murah (LCCT), di dalam Daerah Sepang, dalam negeri Selangor Darul Ehsan, telah didapati mengedar dadah berbahaya iaitu heroin seberat 303.4 gram dan monoacetylmorphines seberat 105.5 gram dan dengan itu kamu telah melakukan kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s 39B(2) Akta yang sama."

Case For The Prosecution

[2] At the commencement of the prosecution's case, in her opening statement (Exhibit P4), the learned Deputy Public Prosecutor (DPP) informed the court that the prosecution would seek to prove the offence with which the respondent was charged by direct as well as circumstantial evidence and to the extent that the situation permitted, the prosecution would also rely on the presumption in s 37(d) of the Dangerous Drugs Act 1952 (Act 234).

[3] On 29 December 2012 at about 10.30 pm, acting on an information received, Assistant Director of Customs Sazali bin Unus (PW4) gathered a team of customs officers for a briefing in connection with a drugs trafficking case. PW4 subsequently instructed the team to conduct a surveillance at the Low Cost Carrier Terminal (LCCT), Sepang.

[4] At about 5 am PW4 was informed by one of his officers namely Customs Officer Ahmad Yazid (PW3) to the effect that the respondent was seen at the baggage screening and clearance area of Malaysia Airport Berhad (MAHB) whereupon PW4 directed PW3 and Customs Officer Shahriza binti Ibrahim to observe and follow the respondent. PW3 in his evidence testified that he saw the respondent pull her blue luggage bag (Exhibit P14) towards the check-in counter. The respondent was seen queing up at check-in counter R33 but subsequently moved to check-in at counter R22 where she checked-in for her flight. A baggage tag was affixed by the Air Asia employee to the blue luggage bag. Both PW3 and Customs Officer Shahriza binti Ibrahim, as the evidence showed, were standing right behind the respondent. Shortly after that, PW4 approached the respondent and upon inspecting her passport, he instructed PW3 and Customs Officer Shahriza to take the respondent and her blue luggage bag to the office of the Enforcement Division, Customs and Excise Department at the LCCT.

[5] On the instruction of Superintendent of Customs Muhammad Bukhari bin Alias (PW6) who was the investigating officer, PW4 opened the respondent's blue luggage bag from which he found on top of the luggage bag a plastic bag containing two boxes (Exhibits P11A and P11B) wherein two picture frames were found from each box (Exhibits P24A and P24B). PW4 did not find anything suspicious or incriminating from the picture frames. However after PW4 removed the picture frame from the first box (Exhibit P11A), PW4 noticed that both left and right sides of the box were bulging from the inside which upon opening he found two packets wrapped in dark blue carbon papers hidden on both the left and right sides of the box containing brownish powdery substance suspected to be drugs. From the second box (Exhibit P11B), PW4 found a packet wrapped in a dark blue carbon paper and another packet wrapped in an aluminium foil both hidden on the right side of the box which was also bulging from the inside containing brownish powdery substance suspected to be drugs.

[6] When PW4, using a test kit, conducted a test on the sample which he took from the powdery substance, the result from the test showed that the subs