Augustine Paul JCA:

[1] This appeal brings into focus two issues of considerable importance in a criminal trial. They relate to the meaning of the expression "selling" in the definition of "trafficking" in s 2 of the Dangerous Drugs Act 1952 ("the Act") in a prosecution for drug trafficking and the extent to which the case for the prosecution is restricted to what was stated in the opening address.

[2] The accused (the respondent before us) was charged in the High Court at Johore Bahru for trafficking in dangerous drugs under s 39B(1)(a) of the Act read with s 39B(2) of the Act with one Mohd Saupi bin Jusoh in furtherance of their common intention as provided by s 34 of the Penal Code. Both the accused persons claimed trial to the charge. At the conclusion of the case for the prosecution the learned Judge acquitted and discharged Mohd Saupi bin Jusoh without calling upon him to enter his defence. He was of the view that the prosecution had made out a case against the respondent based on the presumptions contained in ss 37(d) and 37(da) of the Act. Having amended the charge with the omission of the ingredient of common intention the learned Judge called upon the respondent to enter upon his defence. At the conclusion of his case he was found guilty. He was then convicted and sentenced according to law. His appeal to the Court of Appeal was allowed with a substitution of the conviction under s 39B(1)(a) of the Act with one under s 12(3) read with s 39A(2) of the Act. This appeal is by the prosecution against the order made by the Court of Appeal.

[3] In order to have a proper appreciation of the arguments advanced before us by both parties it is necessary to bear in mind the facts of the case as outlined by the Court of Appeal. It reads as follows:-

According to the prosecution's case, on 8 September 1991 Chief Inspector Nordin bin Kadir (PW5) attended a briefing at which those present were informed that Detective Lance Corporal Chee Kar Wah (PW7) would act as an agent provocateur to buy some drugs. Later that day, five meetings took place between PW7 and the appellant.The first meeting was held at 8 pm; the second meeting at about 8.15pm; the third meeting at about 9.10pm; the fourth meeting at about 10.25pm and the fifth and final meeting at 11.45pm. The first to the fourth meetings took place in the vicinity of Merlin Tower in Johor Bahru. At the first meeting PW7 was introduced to the appellant by an informer At the second meeting some preliminary negotiations took place for the sale of cannabis by the appellant to PW7. At the third meeting an agreement was reached between the appellant and PW7 that the former would sell and the latter would purchase 4 kilograms of cannabis for the sum of RM6000. However, the appellant wanted PW7 to show him the RM6000 before the drug could be delivered. The fourth meeting took place at 10.25pm. At that meeting PW7 showed the appellant the RM 6000. At the same meeting the place at which the drug was to be handed over was agreed upon. It was to be the railway crossing along Tun Abdul Razak, Johor Baru. The fifth meeting took place at the designated meeting point at about 11.45pm. This is what happened. PW7 saw the appellant coming along on foot. He was carrying a plastic bag. He went to a money changer's shop at which he placed the bag on the ground. He then went up to PW7 and asked him to go and pick up the bag. PW7 did so and returned to where the appellant was. PW7 then lit his cigarette lighter to check the contents of the bag. He found a substance which he suspected to be cannabis. Thereafter, PW7 lit his cigarette lighter once again. This was the pre-arranged signal. Upon seeing this, the police officers who were in the ambush party at the scene came up to the appellant and arrested him. The drug was seized. Subsequent chemical analysis established it to be 3686 grams of cannabis.

[4] It was observed by the Court of Appeal that the case for the prosecution is that the respondent sold