rayuan jenayah no: a-05-120-2009 antara mohd kamal bin osman

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10 the prosecution has succeeded in establishing a prima facie case against the appellant. [26] Salmah bt Omar – the appellant’s wife, is not a witness “essential to the unfolding of the narratives on which the prosecution case is based” (per Lord Roche in Seneviratne v R [1936] 3 All ER 36) and she is also not an “important and material witness to the case” (per Mohamed Azmi SCJ in Munusamy v PP [1987] 1 MLJ 492). In our judgment, the appellant’s wife do not belong to the class of witnesses described by Lord Roche and Mohamed Azmi SCJ in those two cases so as to warrant her to be called. [27] We will now consider grounds four, five and six of the Petition of Appeal together. They concerned the invocation of the double presumptions under sections 37(d) and 37(da) of the DDA in the prosecution’s case and the usage of section 2 of the DDA to prove trafficking. We have perused through the written grounds of judgment of the learned High Court Judge and we are constrained to hold that his Lordship did not resort to using both the presumptions in his judgment. From the authorities which his Lordship referred to, it is clear that his Lordship resorted to section 37(d) of the DDA to presume knowledge against the appellant and his Lordship then referred to section 2 of the DDA to show that the prosecution had succeeded in proving trafficking. This approach
11 was sanctioned by the Federal Court in PP v. Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129 where Arifin Zakaria FCJ (now Chief Justice of Malaysia) writing for the Federal Court at page 144 of the report succinctly said: “(17) It ought to be stated at the outset that the decision in Muhammed bin Hassan only prohibits the use of double presumptions under ss. 37(d) and 37(da) of the Act. It is, therefore, open to the prosecution to rely on either of the presumptions. In other words, the prosecution may positively prove possession without relying on the presumption under s. 37(d) of the Act and go on to rely on the presumption of trafficking under s. 37(da) of the Act to support a charge under s. 39B of the Act. See Tunda Apatira & Ors. v. Public Prosecutor (supra); Msimanga Lesaly v. Public Prosecutor [2005] 1 CLJ 398 (a decision of the Court of Appeal which was confirmed by this court in Federal Court Criminal Appeal No: 05- 27-2004(K). Conversely, the prosecution may rely on the presumption under s. 37(d) to prove possession and seek to prove by affirmative evidence (independent of the presumption under s. 37(da)) that the accused was in fact trafficking in the dangerous drug.” [28] A review of the evidence would show that when the proscribed drugs were found and seized from the appellant on that fateful night, the appellant was in possession of the said drugs. At this juncture, it is germane to refer to the case of Public Prosecutor v. Chan Ah Kow & Anor [1988] 2 CLJ (Rep) 186, a decision of KC Vohrah J which was also referred to by the learned High Court Judge. In that case, the second accused who was riding the motorcycle had control of the motorcycle where the red plastic bag containing the drugs were placed inside the carrier basket and due to the proximity between the second accused and
Page 1 and 2: 1 DALAM MAHKAMAH RAYUAN MALAYSIA (B
Page 3 and 4: 3 [3] The appellant elected to give
Page 5 and 6: 5 [7] SP4 succeeded in apprehending
Page 7 and 8: 7 [16] When the appellant was about
Page 9: 9 is not concerned as to the owners
Page 13 and 14: 13 [30] Likewise SP5 also testified
Page 15 and 16: 15 [36] Here, the learned High Cour
Page 17 and 18: 17 [42] We will now reproduce the d
Page 19 and 20: 19 burden is always on the prosecut
Page 21 and 22: 21 “Bertindak atas maklumat dadah
Page 23: Cases referred to in this judgment:

rayuan jenayah no: a-05-120-2009 antara mohd kamal bin osman

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