Discrepancies in weight between prosecution evidence and chemist's findings create reasonable doubt on drug identity, crucial for trafficking charges.

Introduction

[1] The appellant was convicted by the High Court for the offence of trafficking in 1850.21gm of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") and sentenced to death under s 39B(2) of the Act. The appellant appealed to the Court of Appeal against the decision of the High Court. The appellant's appeal to the Court of Appeal was dismissed by majority (Low Hop Bing and Azhar bin Ma'ah, JJCA). Kang Hwee Gee, JCA dissented. The appellant now appeals to this Court against the decision of the Court of Appeal in affirming his conviction and sentence by the High Court.

The Case For The Prosecution

[2] The relevant facts of the case for the prosecution are as follows:

On 25 February 2005, at about 4pm, the arresting officer (SP2) received information on drug trafficking activities along Jalan Besar, Taman Saujana, Johor Bahru, where a male Malay by the name of Yus would be involved, between 6 and 8pm. Acting on this information, SP2 and his police party proceeded by car to the target place at about 6.30pm. They arrived there at 7pm. SP2 remained in the car which was parked by the side of the road. He kept watch, while his men took their respective positions at designated places. Subsequently, SP2 spotted a male Malay who was identified as the appellant, coming out of a lane by the side of the road. The appellant was holding a plastic bag in his right hand. Apart from the appellant, no one else emerged from the road. SP2 and his men approached the appellant and detained him. When SP2 introduced himself as police, the appellant attempted to flee with his plastic bag in hand. SP2 stopped the appellant and thereafter a commotion ensued between the appellant and the police party. The appellant was then arrested by SP2 and his men. The plastic bag was found to contain two slabs of compressed dried leaves which, upon analysis by the Government chemist (SP6) was confirmed to be cannabis weighing 1850.21gm although SP4 said the weight of the cannabis was 1840 grammes. As will be seen this is a point in issue.

The Case For The Defence

[3] The relevant facts of the case for the defence are as follows:

According to the appellant at the time of arrest, the appellant was in a Kenari car with two other persons and not while walking as claimed by SP2. He had earlier walked out of the lane to the main road of Taman Saujana and was not carrying anything at the material time.As he was walking on the main road, a Kenari car with two persons in it stopped near him and asked where he was going. When he said he was going to the Giant Superstore the driver of the Kenari car asked him to get into the car and he got in and sat at the back seat. About 100 meters away, a motorcycle chased after the Kenari car and asked the driver to stop the car Two men were on the motorcycle. When the Kenari car stopped, the two men opened the rear door and got into the car. They introduced themselves as police and handcuffed the appellant. The appellant was then brought to the police station. The police did not handcuff or bring the other two men in the car to the police station.

The Appeal

[4] Before this Court the appellant advanced two grounds of appeal which can be discerned as follows:

(1) There is a doubt as to the identity of the cannabis in view of the failure of the prosecution to explain the discrepancy as to the increase in the weight of the cannabis arising from the evidence of the investigating officer (SP4) and the chemist (SP6) and as such it cannot be said that the prosecution has proved the offence of trafficking beyond reasonable doubt.

(2) The learned trial judge erred in law in his failure to invoke the application of the principle of adverse presumption under s