IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: P-05-147-05/2013
CHEW SAM POH
PUBLIC PROSECUTOR … RESPONDENT
(In the Matter of High Court of Malaya at Pulau Pinang Criminal Trial No: 45-92-2008
Public Prosecutor And
Chew Sam Poh CORAM:
AZIAH BINTI ALI, JCA TENGKU MAIMUN BINTI TUAN MAT, JCA ABDUL RAHMAN BIN SEBLI, JCA
GROUNDS OF JUDGMENT (Section 37(d) of the DDA)
 My learned sister, Justice Aziah binti Ali and I have read the draft judgment of our learned brother Justice Abdul Rahman bin Sebli. We agree with the same except on the application of section 37(d) of the Dangerous Drugs Act 1952 (the Act) as set out in paragraphs 24 until 34 of the draft judgment.
 Our view on section 37(d) of the Act is that where there is direct evidence upon which the trial judge had made a positive finding of possession, it is not incumbent on the trial judge to invoke the application of section 37(d) of the Act.
 Muhammed Hassan v PP  2 CLJ 170 is the authority for the proposition that a presumed possession under section 37(d) of the Act could not be based to invoke the presumption of trafficking under section 37(da) thereof and that to arrive at the presumption of trafficking under section 37(da), an express affirmative finding of possession, based on evidence, is necessary. The ratio decidendi in Muhammed bin Hassan (supra) is clear. One cannot rely on the presumption of possession under section 37(d) to invoke a further presumption of trafficking under section 37(da) of the Act (see Haryadi Dadeh v PP  3 CLJ 553). That was the position of the law prior to the coming into effect of section 37A of the Act on 15.2.2014 which allows for the application of double presumption.
 Whilst Muhammed bin Hassan prohibits the application of double presumption under section 37(d) and (da) of the Act, that case, in our
view, is not the authority to compel the automatic application of section 37(d) of the Act. In an appropriate case where there is direct evidence to prove custody, control and knowledge of the dangerous drugs, the trial judge may make a positive finding of possession independent of section 37(d). And where the accused person was carrying, transporting or importing the dangerous drugs in large amount, a positive finding of trafficking under section 2 of the Act may be made independent of the presumption of trafficking under section 37(da). Presumptions are, but to aid the prosecution to prove its case. Where direct evidence is available, the presumptions need not be resorted to.
 In Isidro Leonardo Quito Cruz v Pendakwa Raya  2 MLJ 1, the Federal Court through Abdull Hamid Embong FCJ said:
“ … A person who is found to be in control and custody of dangerous drugs is deemed to be in possession if the presumption under s. 37(d) is invoked and to have known the nature of such drug (s 37(d) DDA). Alternatively, once the prosecution has succeeded in proving by direct evidence and thus, on a finding of fact, that a person is in possession of a certain amount of dangerous drugs as listed under s. 37(da), he is in law presumed to be trafficking in that said drug, albeit without any intention for its distribution or consumption.
 In this case, there was indisputable and direct evidence that the appellant was in possession of the said drugs in question. He even admitted to swallowing them. The learned trial judge made a positive finding that he was in possession of the drugs. We think that the learned judge had no other option in the face of this damaging evidence. At the end of the trial, it was the learned trial judge’s finding that the appellant had failed to rebut the statutory presumption under s. 37(da)(ix) now triggered against him, on a balance of probability.
 Also by the very definition of trafficking under section 2 DDA, the appellant had been proven as a fact, to have trafficked in the said drugs by way of importing them into Malaysia. That act alone implies that he had trafficked in the said drugs, regardless of whether he had achieved the purpose of that act of importation. …”
 In Siew Yoke Keong v Pendakwa Raya  3 MLJ 630, the Federal Court affirmed the conviction and sentence for trafficking of dangerous drugs. Ahmad Haji Maarop FCJ stated that:
“ … The learned trial judge was right when he held that the prosecution had proved actual possession of the proscribed drugs against Siew. Having made the affirmative finding of possession, and as the amount of dangerous drugs in this case was more than 15 grams, the learned trial judge invoked (and in our view rightly) the presumption of trafficking under section 37(da) of the DDA. In our judgment, the learned trial judge was right in calling upon Siew to enter on his defence on the charge of trafficking against him.”.
 The application of section 37(d) had been made clear by the Federal Court in Emmanuel Yaw Teiku v PP  3 CLJ 597 where Richard Malanjum FCJ (as he then was) said at pg 605:
“ Hence, under the Act there is no mandatory rule to require for the invocation of s. 37(d) to establish the element of possession on a charge for trafficking of dangerous drug. Where the facts and circumstances warrant, it would be sufficient to establish actual possession cum knowledge from the totality of the evidence adduced.”.
 Coming back to the instant appeal, the learned trial judge had found that the appellant had actual possession of the dangerous drugs. In the light of the affirmative finding of possession against the appellant and guided by the decisions of the Federal Court cited above, we are
of the view that the issue of rebutting the presumption of knowledge and possession under section 37(d) of the Act by the appellant did not arise.
Dated 16th January 2015
(TENGKU MAIMUN BINTI TUAN MAT)
Court of Appeal, Malaysia.
For the Appellant:
Hisham Teh Poh Teik Messrs. Teh Poh Teik & Co.
For the Respondent:
Muhamad Yasser bin Mohd Nasri Timbalan Pendakwa Raya Jabatan Peguam Negara.