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

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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