DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO: P-05-250-2010
OOI HOCK KHENG … PERAYU
PENDAKWA RAYA … RESPONDEN
(Dalam Mahkamah Tinggi di Pulau Pinang Perbicaraan Jenayah No: 45-80-2008
Ooi Hock Kheng Dan
Koram: Azahar bin Mohamed, HMR
Mohtarudin bin Baki, HMR Hamid Sultan bin Abu Backer, HMR
JUDGMENT OF THE COURT
 The appellant was charged and tried before the Penang High Court for trafficking in 467.65 grammes of dangerous drugs, namely Ketamine, an offence under section 39B(2) of the Dangerous Drugs Act 1952 (DDA), and punishable under section 39B(2) of the DDA. The offence was said to have been committed on 20.2.2008 at about 6.40 p.m. at the vicinity around the block of Flats described as Blok 50, Taman Yew Lean, Jalan Slim, Georgetown, Penang.
 The learned Judicial Commissioner (JC) at the conclusion of the trial convicted the appellant and sentenced him to the mandatory death penalty prescribed by the DDA. Aggrieved by that decision, the appellant appealed to this court.
 The prosecution evidence presented at the trial is quite straightforward and in brief, it is as follows. Upon information received, Chief Inspector Santhanadas a/I Venugopal (“PW4”) assembled a team of Narcotic police officers. He briefed them on the information and organized a raiding plan. After the said briefing, PW4 and his team proceeded to the targeted area. There, they took up ambush positions and kept a close surveillance. The area was fenced and there was only one entrance.
 At around 6.40 p.m., PW4 saw a Suzuki motor scooter bearing registration No. PFJ 3214 ridden by the appellant entering the area. At that moment, PW4 observed that there was a green plastic bag being hung on the left handle of the motor scooter. The appellant then parked the motor scooter. He got off the motor scooter and took off the helmet. The appellant then took the green plastic bag from the handle and walked toward the entrance of the block of flats.
 At that point, PW4 and his men ambushed the appellant and introduced themselves by shouting ‘Polis’. The appellant turned around, threw the plastic bag and fled. PW4 and his men gave chase and succeeded in arresting the appellant. Thereafter, the appellant was brought to the spot where the green plastic bag was after being thrown. In the plastic bag was a brown paper package. Inside it were 6 transparent plastic packages containing whitish powdery substances.
 The 6 transparent plastic packages were subsequently sent to the Chemistry Department for chemical examination and analysis. They were later confirmed by the chemist, Siti Nur Azirawati bt Idris (“PW3”) to contain Ketamine weighing in total 476.65 grammes, which formed the subject matter of the charge against the appellant.
 The principal ground raised by learned counsel for the appellant in this appeal was that the learned JC had erred when he found that there was trafficking based on section 37(d) and the act of “carrying” under section 2 of the DDA. In his judgment, the learned JC said:
‘Keterangan pihak pendakwaan menunjukkan tertuduh sedang menjinjing beg plastik hijau yang mengandungi dadah ketamine di tangan kiri beliau setelah beliau turun dari motor scooter dan hendak berjalan kaki balik ke arah pintu masuk pangsapuri.
Memakaikan tafsiran ini kepada fakta kes, peruntukan seksyen 2 Akta 234 terpakai sebab ia mentafsirkan pengedaran di antara lain, yang juga merangkumi perbuatan “carrying” sepertimana yang di lakukan oleh tertuduh dalam kes ini. ’
 It cannot be disputed that at the material time, the appellant was in fact carrying the impugned Ketamine. However, the mere act of carrying is not sufficient to constitute the offence of trafficking under the DDA. In other words, the act of mere carrying does not make one a trafficker under the scheme of the DDA. This is made clear from the judgment of Arifin Zakaria FCJ (as His Lordship then was) in Public Prosecutor v Abdul Manaf Muhamad Hassan  2 CLJ 129). That case represents the law on this subject as
we apply today. In our judgment, the learned JC had misdirected himself in that there was no appreciation that to traffic in dangerous drugs under section 2 of the DDA entails something more than passive possession. In the context of the present case, to constitute the offence of trafficking, the act of ‘carrying’ Ketamine by the appellant from one place to another was in the sense of doing so as to promote the distribution or supply of the impugned drug to someone else (see: Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor  1 MLJ 64). This was never considered by the learned JC and he failed to direct his mind on this point.
 In deciding this issue, the point to note is that the drugs involved was Ketamine, which is categorized as a schedule 1 drug in the DDA. It is pertinent to note that the trafficking presumption under section 37(da) of the DDA does not apply to Ketamine. In this regard, a close reading of the judgment of the learned JC revealed that he did not judicially appreciate that there ought to be direct evidence of trafficking or affirmative evidence of trafficking. Likewise, the learned JC also did not recognize that the amount of Ketamine is only 467.65 grammes. In Mohamed Yazri bin Minhat v Public Prosecutor  2 CLJ 65 this Court said:
“To summarise, the fact that the accused is transporting a quantity of drugs from one point to another does not make him a trafficker. Whether he is a trafficker in those circumstances depends on the facts and circumstances of the given case, including the quantity of the drugs and any transaction the accused proposed to enter into. ”
 This brings us to the submission of learned counsel that the appellant was only in passive possession of the Ketamine. Nowhere in his judgment had the learned JC made a finding to the effect that the purpose for which the appellant was in possession of the Ketamine he was carrying was to transfer the possession of the said Ketamine to someone else. In our view, this is a serious nondirection which amounts to a misdirection by the learned JC warranting appellate intervention (see: Gooi Loo Seng v PP  3 CLJ 1).
 In our judgment, at the highest, this was a case of passive possession and not trafficking. The evidence shows that the appellant was in possession of the Ketamine. This is an undisputable fact. The conduct of disposing the plastic bag, the acts of flight and struggle only show that the appellant had knowledge of the contents of the bag to be Ketamine. The learned
JC erred in that he failed to appreciate that other than an act of passive possession, there was no overt act on the part of the appellant to traffic the impugned drugs.
 There is another reason why we had allowed this appeal. At the conclusion of the case for the prosecution, the learned JC had invoked section 37(d) of the DDA to prove possession of the appellant of the Ketamine in the plastic bag. The statutory presumption of possession under section 37(d) is a rebuttable presumption. For this reason, it is incumbent on the learned JC to consider at the end of the whole case whether the presumption that he invoked had been rebutted on a balance of probabilities. A reading of the judgment of the learned JC shows that he had failed to direct his mind on this point. This is a serious misdirection as the law requires the learned JC to make such a finding when he resorted to the presumption under section 37(d) of the DDA (see: Alcontara a/l Ambross Anthony v PP  1 CLJ 705, Tan Boon Kean v PP  4 CLJ 456 and PP v Ku Yahya Ku Bahari & Anor [2002) 1 CLJ 113).
 In resisting this appeal, the learned Deputy Public Prosecutor (“DPP”) urged us to apply the proviso to section 60(1) of the Court of Judicature Act 1964:
“Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred
 To support his submission, the learned DPP drew our attention to the case of Public Prosecutor v Abdul Manaf Muhamad Hassan (supra). In that case the appellant was charged with trafficking in 62.09 grammes of heroin. The drug was carried in small plastic packets each containing a small quantity of the drugs. According to the evidence, 39.77 grammes of heroin was found in a number of small plastic packets tucked in his waist, while 50 small plastic rackets containing 9.09 grammes of heroin was found in the right side pocket and another 30 small plastic packets containing 5.57 grammes heroin was found in the left side pocket of the track top he was wearing. A total of 20 small plastic packets were found in each of the right and left pockets of his trousers, containing a total of 7.66 grammes of heroin. It was against this background evidence, the Federal Court held that the appellant in that case was not just a passive carrier and as such, the proviso ought to be invoked. Arifin Zakaria FCJ (as His Lordship then was) in delivering the judgment of the Federal Court said:
“Judging from the manner the drug was being carried i.e. in small plastic packets and taking into account the total amount of the drug involved, the reasonable inference that may be drawn is that the respondent was in fact carrying it for the purpose of trafficking.”
 Cleary, therefore, the case of Public Prosecutor v Abdul Manaf Muhamad Hassan (supra) relied on by the learned DPP is distinguishable on its facts. On the facts and the prevailing circumstances of the present case, we were satisfied that even if the learned JC had properly directed himself, he would have come to the finding that this was just a case of passive possession and not trafficking.
 It is an established principle that the proviso is only to be invoked in exceptional circumstances (see: Tunde Apatira v Public Prosecutor  1 CLJ 381). In the present case, the evidence does not show or prove a transfer of possession or that the drugs were to be supplied to another person. In our judgment, there was nothing exceptional regarding the evidence of the present case against the appellant; there was no valid reason for us to invoke the proviso.
 This appeal was, therefore, allowed. Accordingly, we quashed and set aside the conviction and the death sentence of the High Court and we substituted it with one of possession under section 12(2) and punishable under section 12(3) of the DDA. The appellant was sentenced to 5 years imprisonment from the date of arrest.
Dated this day, 30th June 2014.
(DATO’ AZAHAR BIN MOHAMED)
Court of Appeal.
For The Appellant : Hisyam Teh Poh Teik
Messrs. Teh Poh Teik & Co.
For The Respondent : Yusaini Amer Abdul Karim
Deputy Public Prosecutor Attorney General’s Chambers