Arifin Zakaria FCJ:

Background

[1] The respondent was charged with an offence of trafficking in dangerous drugs under s. 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") in the High Court at Johor Bahru for trafficking in cannabis weighing 4,826.9 grammes. He was convicted and sentenced to death by the said court. On appeal to the Court of Appeal, the conviction and sentence was set aside and substituted with an offence under s. 6, punishable under s. 39A(2) of the Act. The respondent was sentenced to 18 years imprisonment and 10 strokes. The prosecution now appeals to this Court against the decision of the Court of Appeal.

Prosecution's Case

[2] On 9 May 1996, at about 1am, acting on information received, ASP Nordin (PW5) and a team of police officers from Narcotics Unit Johor Bahru conducted a surveillance in the area of Jalan Kubur, Bakar Batu, Johor Bahru. At about 3.30am, PW5 saw a car bearing registration No. TT 2161 approaching the surveillance area and it came to stop under a shed. PW5 and Detective Sergeant Badron (PW6) noticed that the respondent was the driver of the car and he was alone in the car.

[3] When the respondent came out from the car and was about to lock the car, PW5 and his team moved towards the respondent, he introduced himself as police officer and arrested the respondent. PW5 then administered caution under s. 37A of the Act to the respondent and asked whether there was any contraband inside the car. When the respondent answered in the negative PW5 then took possession of the car key and conducted a search inside the car. He found one package under the driver's seat and two packages under the front passenger's seat. The 3 packages were found to contain 5 blocks of compressed plant material. The chemist, Mision bin Sulaiman (PW4), analyzed the 5 blocks of compressed plant material and confirmed that they were cannabis as defined under s. 2 of the Act having a net weight of 4,826.9 grammes. The respondent was accordingly charged for trafficking of the cannabis under s. 39B(1)(a) of the Act.

[4] Before the learned trial judge PW6 in his evidence testified that he saw the respondent was alone inside the car when the car TT 2161 was approaching the surveillance area. He followed the car closely until it came to be parked under a shed near the said area.

[5] Ghazali Mohd (PW8) who runs a business under the name of "Zag Agency & Services" stated that the car bearing registration number TT 2161 was rented to the respondent since 27 September 1995 at a monthly rental of RM1,300.

[6] The chemist (PW4) in his evidence testified that he conducted the four standard tests namely the physical examination, microscopic examination, Duquenois Levine test and Thin Layer Chromatography test on the 5 blocks of compressed plant material. He confirmed that the said plant material was cannabis as defined in s. 2 of the Act having a net weight of 4,826.9 grammes.

[7] When the prosecution sought to tender the respondent's cautioned statement which was recorded on 11 May 1996, that is two days after his arrest, this was objected to by the defence on the ground that the cautioned statement was not voluntarily made by the respondent. A trial-within-trial was conducted and at the end of which the learned trial judge held that the cautioned statement was voluntarily made by the respondent. The cautioned statement was accordingly admitted in evidence.

[8] At the end of the prosecution's case the learned trial judge held that a prima facie case had been made out against the respondent and then called upon the respondent to enter his defence.

[9] The respondent testified on oath that, on 8 May 1996, at around 9pm he left Kuala Terengganu heading towards Johor Bahru driving the car TT 2161 to meet an Indonesian man by the name of "Jiri". He met Jiri at the Mamak stall in Taman Sentosa, Johor Bahru. Jiri requested for the car key to put packages of cloth samples inside the car which were to be delivered to the respondent