Emmanuel Kamano v Public Prosecutor [2019] MLJU 342

Court of Appeal (Putrajaya)

Presumptions of Possession and Knowledge of Drugs

1.    The Appellant and the other person were arrested by the police who had trailed the car they were travelling in through the Kepong MRR2 highway.

2.    The police had earlier received information of a drug trafficking activity involving African nationals in that area and that a Perodua Myvi with registration number WWD5575 was used in the transaction.

3.    The Appellant resisted arrest and had a scuffle with the arresting party when they wanted to handcuff him.

4.    When the car was examined, the police found the drug which formed the subject matter of the charge. It was found in two plastic packets on the floor behind the driver’s seat of the car.

5.    The chemist confirmed that the drug was cocaine weighing 3304.6 grammes, a dangerous drug listed under the First Schedule to the Dangerous Drugs Act 1952 (Act 234).

6.    Possession without lawful authority of 40 grammes or more of such type of drug triggers the presumption of trafficking under Section 37(da) of Act 234.

7.    In this case, the amount was 82 times more than the prescribed minimum.

8.    At the close of the prosecution case, the learned trial judge found that a prima facie case had been established against the Appellant.

1.   Whether the trial judge was correct in ruling that the Appellant failed to rebut the presumptions of possession and knowledge of the nature of the drug under Section 37(d) of Act 234.

(a)   The Court agreed with the trial court’s conclusion that the Appellant had knowledge of the drug and had failed to rebut the presumption under Section 37(d) Act 234.

(b)   This is because the Court determined that whether the Appellant was aware of the drug was primarily a question of fact, and the principle is well established that an appellate court does not readily overturn trial court findings of fact unless it can be demonstrated that the finding is perverse.

(c)   The proposition is best explained by the Privy Council in Antonio Dias Caldeira v Frederick Augustus Gray [1934] 1 LNS 5; [1936] 1 MLJ 110:

“Nonetheless, the functions of a Court of Appeal, when dealing with a question of fact, and a question of fact, moreover, in which, as here, questions of credibility are involved, are limited in their character and scope.”

(d)   Section 37(d) under Act 234 presumes possession of the drug and knowledge of the nature of the drug in a prosecution where the accused is found to be in custody or control of the drug.

(e)   Section 37(d) of Act 234 provides as follows:

“In all proceedings under this Act or any regulation made thereunder –

any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to be in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of the drug”.

(f)     In this case, there was no doubt that the drug was in the Appellant’s custody and control at the time of his arrest.

(g)   As a result, two things were presumed against him: that he had the drug in his possession and that he was aware of the nature of the drug, in this case cocaine.

(h)   It was thus incumbent on the Appellant to demonstrate not only that he was not in possession of the drug, but also that he had no knowledge of its nature.

(i)     The quantum of proof required to discharge the burden is proof on the balance of probabilities, i.e., the civil burden of proof.

(j)     In the present case, there was nothing to stop the Appellant from examining the two plastic packets that Johnson asked him to collect from Johnson’s girlfriend.

(k)    In fact, he should explain the suspicious circumstances that prompted him to do so. Therefore, by choosing not to do so, he was clearly guilty of wilful blindness.

(l)     As a result, the learned trial judge was correct in concluding that the Appellant had failed to rebut the presumptions of possession and knowledge of the nature of the drug under Section 37(d) of Act 234.

1.    The Court of Appeal dismissed the Appellant’s appeal and affirmed his conviction and sentence.

1.    Section 37(d) of Act 234 emphasized that any person who is found to have had in his custody any dangerous drug shall be deemed to be in possession of such drug.

2.    As a result, if a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents unless he can prove that he is a servant or bailee who had no right to open it and no reason to suspect that its contents were illicit or were drugs.

3.    Furthermore, despite being the owner, he had no knowledge of its actual contents or of their illicit nature, that he received them innocently, and that he had no reasonable opportunity to familiarise himself with its actual contents since receiving the package.

4.    However, if the prosecution can demonstrate that the accused had the opportunity to examine the package in his possession, particularly under suspicious circumstances, he is clearly guilty of wilful blindness by failing to do so.