JUDGMENTBY: GOPAL SRI RAM JCA (DELIVERING THE JUDGMENT OF THE COURT)

GOPAL SRI RAM JCA (DELIVERING THE JUDGMENT OF THE COURT) This appeal was heard on 7 February 1995. At the conclusion of argument we allowed the appeal, quashed the conviction under s 39B of the Dangerous Drugs Act 1952 (the Act) and set aside the sentence of death passed by the High Court. In its stead, we entered a conviction under s 39A(2) of the Act and, after considering the plea in mitigation advanced by Encik Karpal Singh of counsel for the appellant, imposed a sentence of life imprisonment and 12 strokes of the rottan. We also ordered that the sentence of imprisonment do run from the date of the appellants arrest. The reasons for our decision are now handed down.

The appellant was charged, as has been said, for an offence under s 39B of the Act. That charge reads as follows:

Bahawa kamu, Sochima Okoye, pasport Nigeria No A390813 pada 30 November

1990 kira-kira pukul 11.30 pagi di pejabat Kastam dan Eksais Diraja

Malaysia, Bahagian Hasil, Stesyen Keretapi, Padang Besar di dalam

Daerah Titi Tinggi dalam Negeri Perlis Indera Kayangan, telah mengedar

dadah berbahaya iaitu 2840.3g heroin bagi pihak diri kamu sendiri dan

dengan itu kamu telah melakukan satu kesalahan di bawah s 39B(1)(a)

Akta Dadah Berbahaya 1952 (Semakan 1980) dan boleh dihukum di bawah s

39B(2) Akta yang sama.

The facts of the case as produced by the prosecution in the court below are as follows. On 30 November 1990, PW2 and PW4, both officers of His Majestys Customs, boarded the southbound train at Padang Besar. They were accompanied by three other customs officers. Their task was to conduct a routine search for dutiable goods that may be carried on board by the passengers. In one of the compartments, PW2 and PW4 noticed three bags on a rack provided for that purpose. These were located above seat No 37 which was vacant at the time. There were the only luggage on that rack. PW3 and PW4 inquired about the ownership of the bags. As a result of information they obtained, PW4 called out to the appellant, who was standing in the queue at the Immigration counter, to come into the compartment in question. The appellant did so. PW4 asked the appellant a number of questions. In response, the appellant answered that he was a Nigerian national travelling from Bangkok to Singapore. PW4 then asked of the appellant: Where are your bags? The appellant responded by pointing to the three bags atop the luggage rack above seat No 37. PW4 requested the appellant to bring down the bags and to open each of them. In one of the bags was a cardboard box marked rice cooker. It is an item that attracts duty. So, PW2 instructed PW4 to have the three bags removed to the customs office at the station for the purpose of ascertaining if there were any other dutiable goods carried by the appellant. The appellant was asked to accompany PW4. This is what is commonly known as a 100% check. It was, as has been earlier said, a purely routine matter. PW2 also instructed PW4 to collect from the appellant the security deposit that His Majestys Customs normally collects from transit passengers to ensure that dutiable goods are re-exported from Malaysia.

The appellant carried the three bags to the customs office and placed them on a counter. In the presence of PW2 and PW4, the appellant opened one of the bags. In it was a rice cooker (exh P4). PW3, another customs officer who was also present at the office, examined exh P5. He tried depressing the on/off button but it appeared to be jammed. So he produced a metallic wire and probed the area where the switch was located. When he withdrew the wire he found traces of a whitish powder on it. He was about to undertake a closer examination of the rice cooker when the appellant took flight. A careful search lasting several hours found him hiding in the belukar. He was then taken into formal custody and charged with the extremely seri

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