Chong Siew Fai CJ (Sabah & Sarawak):

This appeal was against the decision of the High Court at Johor Bahru in which the appellant was convicted on a charge of drug trafficking under s. 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and sentenced to death under s. 39B(2) thereof. At the conclusion of the hearing, we unanimously allowed the appeal, quashed the conviction and set aside the death sentence. As conceded on behalf of the appellant, which we considered justified, we substituted therefor a conviction under s. 6 of the Act and, after hearing the plea in mitigation, sentenced the appellant to imprisonment for a term of 16 years with effect from the date of his arrest and 10 strokes of whipping. We had then indicated that the grounds of the judgment would be given later, which we now do.

The charge against the appellant reads:

Bahawa kamu pada 31hb Oktober 1990, jam lebih kurang 7.45 malam, di kawasan rumah setinggan di Jalan Kubur; Kampong Bakar Batu, di dalam daerah Johor Bahru, dalam Negeri Johor, telah didapati mengedar dadah berbahaya iaitu cannabis, sejumlah berat 1784.8 gram, dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.

Case For Prosecution

Briefly, the case for the prosecution is this:

Acting on information received on 31 October 1990 at 7pm, detective police constable Hairuman b. lhsan (PW5) together with detective police constable Haron b. Pandak (PW6) and one DPC Sharif went to a squatter-area in Kampong Bakar Satu, Jalan Kubur, Johore Bahru. Upon arrival at 7.45pm, the police party entered a lane between some houses where they met the appellant carrying a package (exh. P6) in his right hand. PW5 identified himself as a police officer. This prompted the appellant to take flight and, in so doing, dropped the package (exh. P6) which he carried.

The policemen immediately took steps to prevent the appellant from escaping, resulting in a scuffle between the policemen and the appellant. The appellant was finally overpowered and arrested. PW5 retrieved the package (exh. P6) dropped by the appellant. An examination of the package in the presence of the appellant revealed it to contain two smaller plastic packages (exh. P7 and P8). Upon opening the two packages, PW5 found each to contain dried leaves which he believed to be cannabis. The appellant was then taken to PW5's office at the Police Headquarters of Johore Bahru. At 9.35pm the same night, PW5 handed over the appellant and the said packages to PW7, the investigating officer of this case.

PW7 testified that on 5 November 1990 at 9am he sent the packages to PW3, the chemist, and received them back from the chemist on 20 March 1991 at about 11am.

In his evidence, PW3 testified that to determine whether the dried leaves in the two packages (exh. P7 and exh. P8) were cannabis, he conducted the four standard tests which were:

(i) Physical examination;

(ii) Microscopic examination;

(iii) Duquenois Levine test; and

(iv) Thin Layer Chromatography test

From the first test, PW3 discovered that all the plant-materials from the two packages were of the genus cannabis. The second test, that is the microscopic examination of the said plant materials, revealed that there were a lot of resins in their original form and the plant-materials had the same morphological features as those found in cannabis. From the Duquenois Levine test, PW3 found the presence of 'cannabenoid' as to be found in cannabis, and from the thin layer chromatography test, he discovered that the cannabenoid contained similar active ingredients as found in cannabis.

It was not in dispute that a copy of the chemist's (PW3's) report (exh. P11) on the examination and analysis of the aforesaid plant-materials was served on the appellant in the Johore Bahru prison on 28 July 1991.

On the above evidence, the learned trial judge held that a prima facie case had been made o