rayuan jenayah no.c-05-325-2009 di antara helmi bin mohd hussin

DALAM MAHKAMAH RAYUAN MALAYSIA 

(BIDANG KUASA RAYUAN) 

RAYUAN JENAYAH NO.C-05-325-2009 

DI ANTARA 

1 

C-05-325-2009 

HELMI BIN MOHD HUSSIN … PEMOHON 

LAWAN 

PENDAKWA RAYA … RESPONDEN 

(Dalam Perkara Mahkamah Tinggi Malaya di Johor Bahru 

Kes Jenayah No: 45-03-2008 

Pendakwa Raya 

Lawan 

Helmi Bin Mohd Hussin) 

KORUM 

AHMAD BIN HAJI MAAROP, HMR 

CLEMENT SKINNER, HMR 

HAJI MOHAMED APANDI HAJI ALI, HMR 

(Tarikh bicara/keputusan – 11 Julai 2011)

GROUNDS OF JUDGMENT 

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[1] Helmi Bin Mohd Hussin (“the appellant”) was convicted by the 

Temerloh High Court of trafficking in 936.47 grams of cannabis, an 

offence punishable under section 39 B(2) of the Dangerous Drugs Act 

1952 (“DDA”). We heard his appeal against such conviction and 

sentence and dismissed it. This is our reasons for doing so. 

Brief facts 

[2] The facts of this case are dealt with fully in the judgment of the 

High Court. It will only be necessary to set out briefly here those parts of 

the facts that are relevant to this appeal. 

[3] Insp. Asfanizairil Shafry (SP3) led a raid on the house stated in the 

charge at 9.15 p.m. He knocked on the main door which was opened by 

a Malay lady. In the living room were a Malay man and 2 children. The 

man was the appellant’s brother and the Malay lady was his sister-in- 

law. 

[4] On searching the house SP3 noticed a locked room in the middle 

portion of the house. SP3 knocked on the door of that room. About 30 

seconds later the door was opened by a male Malay, subsequently 

identified as the appellant. On gaining entry into the room, SP3 testified 

that he “noticed just near the entrance of the door a compact slab of 

dried leaves, 3 slices of slab of dried leaves as well as powder of dried 

leaves, a weighing scale, a blade saw placed on newspaper on the

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floor”. SP3 left everything as they were in the room and immediately 

arranged for a police photographer (SP2) from Temerloh Police Station 

to take photographs of what was found in the room. After that all the 

items were seized. The dried leaves were sent to the Chemistry 

Department for analysis. They were confirmed to be cannabis weighing 

936.47 grams. 

The appellant raised only the 2 following grounds in this appeal. 

1. That the learned trial judge misdirected himself when his 

Lordship in his written grounds invoked the trafficking 

presumption under section 37 (da) of the DDA when he did 

not do so at the end of prosecution’s case. 

[5] At the close of the prosecution’s case the learned Judge gave a 

short ruling that the prosecution had established a prima facie case 

against the appellant. He said (at pg 86 Record of Appeal): 

“Secara rumusan kesemua rangkaian keterangan di dalam kes ini, saya 

berpendapat bahawa bukan sahaja satu anggapan tapi telah timbul satu 

inference yang kukuh bahawa tertuduh telah memiliki dadah tersebut 

untuk tujuan pengedaran. Saya berpuas hati bahawa pendakwa dalam 

kes ini telah berjaya membuktikan kes prima facie terhadap tertuduh dan 

saya arahkan tertuduh membela diri di atas tuduhan yang dihadapi.” 

[6] The appellant took two points against this ruling:

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(a) first, it was erroneous for the learned Judge to rule that a case of 

trafficking had been made out based on an inference of 

possession and from that inference the learned Judge made an 

inference of trafficking. 

In short the appellant complains that the learned Judge had made 

“an inference upon an inference” which, according to the appellant, 

was entirely wrong. According to the appellant, with regard to the 

element of possession, it was open to the learned trial judge to either 

make an affirmative finding of possession (as stated by the Federal 

Court in Muhammed Bin Hassan [1998] 2 MLJ 273 at pg 289) or rely 

on “deemed possession” under s 37(d) of the DDA. According to 

counsel, the learned judge did not make an affirmative finding that the 

appellant was in possession of the offending drugs at the end of the 

prosecution’s case, but instead made an “”inference on an inference” 

which , according to learned counsel, is unknown in law and on this 

ground alone the conviction cannot stand. 

We find no merit in this contention. The ruling of the learned 

Judge was but his brief reasons for calling the appellant to enter on 

his defence. When the learned Judge came to write his judgment, he 

gave full reasons for his ruling on a prima facie case. It is clear to us 

from his judgment that the learned Judge did not make an inference 

upon an inference as alleged. From a reading of his judgment it is 

evident that the learned Judge was fully aware that in law for a 

person to be in “possession” of a thing, there is a physical element 

i.e. physical possession of the thing possessed, and a mental

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element i.e. that the person knows what he is in possession of. It 

was to the mental element of possession that the learned Judge was 

referring to when he said possession can be inferred. Thus at pg 18 

of the Record of Appeal the learned Judge said: 

“In this case one fact which I relied on to draw an inference of possession 

is the place where the drugs were found that is right at the entrance of the 

room and in the sight of everyone present in the room. Therefore 

knowledge could be inferred quite readily” (our emphasis). 

As far as the physical element is concerned, the learned 

Judge said at page 19 of the Record of Appeal that the presence 

of the weighing scale, the saw and the sliced pieces of drugs show 

that the appellant was in the midst of working on the drugs. The 

learned Judge said it can be strongly inferred from those facts that 

the appellant had full control and custody of the drugs. We cannot 

find any fault in what the learned Judge said about the inference to 

be drawn from the circumstances surrounding the finding of the 

offending drugs on the day in question. To our minds when the 

learned judge said it can be inferred from the circumstances just 

described that the appellant was not only in full control and 

custody of the drugs but it could be readily inferred that he knew 

what he was in possession of i.e. the offending drugs, the learned 

Judge was in fact making an affirmative finding of possession. 

As far as the element of trafficking is concerned, the learned 

Judge came to a finding of fact at page 23 of the Record of Appeal

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that since the appellant was found in possession of drugs which 

weighed 936.47 grams, the presumption under s 37 (da) of the DDA 

was triggered. Clearly he had not made any inference or inference 

on an inference to find the appellant was trafficking in drugs. He 

applied the statutory presumption against the appellant after he had 

affirmatively found that the appellant was in possession of the drugs 

and the weight of the cannabis was more than 200 grams. For this 

reason we do not think the learned Judge had run foul of what the 

Federal Court said in Muhammed Bin Hassan (supra) about the need 

of a trial judge to make an affirmative finding of possession before 

invoking the presumption of trafficking in the said drug under s 37(da) 

of the DDA. 

(b) With regard to the second point taken, the appellant complained 

that it was erroneous for the learned Judge in his written grounds 

at page 23 of the Record of Appeal to find that the appellant made 

no attempt to rebut the s 37 (da) presumption when the learned 

Judge never invoked the said presumption at the end of the case 

for the prosecution. 

The appellant contends that his fair trial was prejudiced and 

compromised when the learned Judge did not indicate in his ruling 

that he was relying on the presumption of trafficking in s 37(da) to 

find a prima facie had been made out. In the circumstances, the 

appellant says he was under no obligation to rebut the 

presumption of trafficking in his defence. To do so was 

procedurally and substantially unfair to him.

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[7] We do not agree. Under s 180 Criminal Procedure Code (“CPC”), 

at the close of the prosecution case, on the learned Judge’s finding that 

a prima facie case had been made out against the appellant, he need 

only to pronounce so and call the appellant to enter on his defence. The 

provisions of law do not require the learned Judge to give reasons at the 

time he pronounced his finding of a prima facie case. 

[8] In PP v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393 one of the 

questions raised before before the Federal Court was whether, prior to 

the amendment of ss 173(f) and 180 CPC, it was incumbent for a court 

to make a finding at the close of the prosecution case that the 

prosecution had proved its case beyond reasonable doubt. The Federal 

Court held that it was not necessary to do so and that the case of 

Arulpragasam a/l Sandaraju v PP [1997] 1 MLJ 1 was not authority for 

that proposition. The apex court went on to say that the failure by the 

court either to make or record such a finding does not occasion a 

miscarriage of justice. It is sufficient for the judicial arbiter – be he a 

judge or magistrate – to give his reason in his written grounds of 

judgment for requiring an accused to make his defence. What this 

meant was that in a case such as this, involving a charge under s 39B(2) 

DDA, the trial court need not, when calling for the defence, indicate 

whether it had applied the statutory presumption under s 37(da) DDA, 

the court may do so in its written grounds of judgment. After the 

amendment to ss 173(f) and 180 of the CPC, the Federal Court said the 

position did not change but the statutory test had been altered – all that 

was required was for the subordinate court and High Court to be 

satisfied that a prima facie case had been made out at the close of the

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prosecution case, but in reaching that decision, the court had to 

undertake a maximum evaluation of the prosecution evidence. 

[9] Reverting to the facts of this case, if the learned Judge had 

chosen that course which was open to him to take and had merely 

announced that he was satisfied that a prima facie case had been out at 

the close of the prosecution case, his ruling would not be open to the 

criticism that he had not indicated to the appellant that he had invoked 

the statutory presumption of trafficking against him. If that be the case, 

we do not see on what basis it can be said that the appellant has been 

prejudiced by the ruling made by the learned Judge in this case. 

2. The second ground of appeal was that: The failure of the 

prosecution to call or at least offer the other two adult occupants in 

the house has compromised the case for the prosecution. 

[10] The complaint here is that the appellant’s brother Shaiful Bahari 

Bin Mohd Hussein and his wife who were in the house when the police 

recovered the drugs, were not called as prosecution witnesses nor were 

they offered to the defence. The appellant says his brother Shaiful 

Bahari was particularly important as it was established in evidence from 

Ahmad Fahmi Bin Abdullah (SP6) the owner of the house, that the 

house was rented out to his brother Shaiful Bahari. Accordingly, the 

appellant contends that Shaiful Bahari was deemed, under s 37(b) DDA, 

to be the occupier of the premises in which the drugs were found, until 

the contrary is proved. Further Shaiful Bahari was a suspect in the case 

as he was arrested together with the appellant, had his statement taken

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and he was charged. The appellant submitted that without Shaiful 

Bahari or his wife being called, there was no evidence that the room 

where the drugs were found was occupied by the appellant and that 

others had no access to the room. In fact it was the appellant’s defence 

that the drugs belonged to one Mahasan and by calling Shaiful Bahari 

and his wife it could be established whether Mahasan had access to the 

room. The appellant said the failure to call or offer these important 

witnesses brought about the following consequences: 

(i) the appellant is entitled to an acquittal as Shaiful was 

essential to the unfolding of the prosecution’s narrative; 

(ii) that possession has not been proved; 

(iii) that there was a gap in the prosecution case and section 114 

(g) of the Evidence Act can be invoked. 

[11] We do not agree. We find no merit in the above contentions. 

[12] Even though Shaiful Bahari may have been the tenant of the 

house and therefore deemed to be in occupation of it, the court has a 

duty to decide a case on its own particular facts. The evidence shows 

that the drugs were not recovered from a common area or general area 

of the house, but from a particular room which was locked, the 

immediate occupant of which room was the appellant. It was he who 

opened the door of the room and no one else was in that room where 

the drugs were found. 

[13] We do not accept the appellant’s contention that Shaiful Bahari 

and his wife were important witnesses for the unfolding of the

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prosecution’s narrative by reason of the fact that it was they who could 

have given evidence whether the room in which the drugs were found 

was occupied by the appellant and that no others had access to that 

room. With respect, the critical question before the learned Judge was 

not whether the appellant occupied the room in which the drugs were 

found. The critical question was whether the appellant was in 

“possession” of the drugs found in the room, i.e. he had physical 

possession of the drugs and knew what he was possessing. In our 

judgment there was overwhelming evidence to prove that the appellant 

was in possession of the drugs. As the learned Judge found, with which 

finding we agree, the drugs on the floor of the locked room, with the 

weighing scales, blade saw and 3 sliced pieces of the drugs shows that 

the appellant was working on the drugs. He had “possession” of the 

drugs in every sense of that word as understood in the law. From the 

evidence just described, it is reasonable to conclude, using the words in 

the case of Chan Pean Leon v PP [1956] MLJ 237 that the appellant 

was in possession of the drugs at the material time as he was “so 

situated to it (i.e. the drugs) that he had power to deal with it as owner to 

the exclusion of all others”. 

[14] We accordingly find that the non-calling of Shaiful Bahari and his 

wife did not cause a gap in the prosecution’s case or have the 

consequences alleged by the appellant. We find the omission to do so 

did not occasion a failure of justice as there was other credible evidence 

before the court to prove that the appellant was found in possession of 

the offending drugs.

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[15] It was for all the above reasons that we dismissed the appellant’s 

appeal and affirmed the conviction and sentence imposed by the High 

Court. 

Dated: 8 th March 2012 

COUNSEL 

DATUK CLEMENT SKINNER 

Judge 

Court of Appeal 

Malaysia 

For the Appellant: Hisyam Teh Poh Teik 

Muhammad Hasif Hassan with him 

Messrs Hasif & Co 

Advocates & Solicitors 

Kota Bharu, KELANTAN 

For the Respondent: Tengku Amir Zaki Bin Tengku Hj Abdul 

Rahman, DPP 

Attorney-General’s Chambers 

PUTRAJAYA

rayuan jenayah no.c-05-325-2009 di antara helmi bin mohd hussin

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