EDGAR JOSEPH JR FCJ (DELIVERING THE GROUNDS OF JUDGMENT OF THE COURT) This appellant was convicted upon a charge that he did on 11 March 1989, in front of the Country Fried Chicken Restaurant, at Jalan Skudai, Johor Bahru, traffick, on his own behalf, in a dangerous drug, to wit, heroin, weighing 112.94g, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and was sentenced to death.

Before us, the conviction had been attacked on a number of grounds but, in the event, we considered that the only point of substance argued by counsel for the appellant concerned the failure of the prosecution to either call, or at least make available to the defence, a witness who, it was said, for a certain time was just an informer but later forsook that role and assumed the mantle of an agent provocateur, thereby occasioning a miscarriage of justice. For brevity and convenience, we shall, unless the context otherwise requires, refer to this witness as the informer.

Now, the whole of the material evidence had been closely and critically examined before us with great care and it is unnecessary to discuss it at any length. Suffice it to say that it was the informer who had enticed the appellant to walk into a deliberate trap, which had been planned and organized by PPP Noorhashim and executed by a team of six police officers led by K/Inspector Mohd Amin bin Abd Raof (PW3) who was then attached to Cawangan Anti Dadah, Bukit Aman, Kuala Lumpur, on the date and at the time and place referred to in the charge.

More particularly, the trap involved a certain DPC Lian Kia Hock (Lian) -- a member of the six-man team -- acting as an undercover agent by posing as a buyer of the heroin concerned, and the informer who had previously put Lian in touch with the appellant. Indeed, on the day in question, by prior appointment, Lian driving his Proton Saga No WBL 5697, and accompanied by his colleague, DPC Lim Saw Peng, had picked up the informer in front of a hotel in Jalan Besar, and proceeded directly to the Country Fried Chicken Restaurant, arriving there at about 5.50pm.

About ten minutes later, a male Chinese, described as a friend of the informer, joined the trio at the same table and he -- apparently, at the behest of the informer -- telephoned the appellant, inviting him to come over. Having returned to the table, this male Chinese had informed his companions that the seller of the heroin -- that is to say, the appellant -- would be arriving anon. About 15 to 20 minutes later, the appellant did in fact arrive, whereupon he was introduced as Ah Heng by the informers friend to the others. The informer and his friend then departed.

According to the evidence led by the prosecution, what followed were negotiations between Lian and the appellant, for the sale and purchase of the heroin concerned, ending in a concluded deal. Lian then left saying that he was going out to count and fetch the RM40,000, being the purchase price, which was lying in the boot of his Proton, parked just outside the restaurant. On emerging from the restaurant, Lian gave a pre-arranged signal, signifying that the deal had been concluded, and very shortly after that, the appellant was seen to emerge from the restaurant with a male Chinese -- unknown to Lian -- both of whom entered a Daihatsu car parked nearby. A short while later, the appellant emerged from the Daihatsu, carrying a plastic bag which contained the heroin concerned in three packets wrapped in Chinese newspaper, and some clothing, and which the appellant handed to Lian, who after examining its contents, gave a further pre-arranged signal to the arresting party, signifying that the heroin had been delivered, who then pounced upon the appellant and arrested him.

It was obvious that at the close of the case for the prosecution, neither the informer nor his friend were called by the prosecution or made available to