Edgar Joseph Jr SCJ:

[1] The respondent, a Nigerian National, was prosecuted in the High Court, Alor Setar, on a single count of trafficking in a dangerous drug to wit, heroin, weighing 2233.9 grams on 20 October 1990, in contravention of s 39B of the Dangerous Drugs Act 1952.

[2] At the close of the case for the prosecution, the trial Judge (Judicial Commissioner Mohd Noor bin Hj Abdullah) acquitted and discharged him without calling upon the defence on the ground that the prosecution had not established a prima facie case. The public prosecutor being dissatisfied with that decision had appealed to this Court.

[3] According to the evidence led by the prosecution, on 20 October 1990, at 3.30 pm, the respondent had entered Malaysia at an immigration entry point at Bukit Kayu Hitam, Kubang Pasu, Kedah, by bus from Thailand on transit to Singapore. He carried with him an alluminium trunk and a briefcase. On arrival at the Customs counter, he declared certain ceramic items contained in the trunk which he opened with a key. On examination, by Customs Officer Roslan bin Othman (PW2), the briefcase was found to contain ceramic items and personal items and the trunk to contain clothes and ceramic items As the respondent had intended to take the ceramic items to Lagos, Nigeria, he was required to, and did pay a sum of RM250 described as a "deposit/security". Customs Officer Baharom bin Haji Ahmad (PW3) then sealed the trunk, and the respondent then walked back to his bus carrying with him the briefcase and the trunk.

[4] At this point, another Customs Officer of the Drug Preventive Unit, caught sight of the respondent as he walked towards the bus and, at the former's behest, yet another Customs Officer Chow Kum Weng (PW6) stopped the respondent requesting him to proceed to the office of the Preventive Branch, Customs and Excise Department. This, the respondent did and, on arrival there, a specially trained dog sniffed the trunk with positive results. An inspection of the inside of the trunk revealed nothing incriminating but when Customs Officer Chow Kum Weng puntured a hole at the bottom layer of the trunk, a white powdery substance oozed out. A more detailed examination of the trunk then followed and this resulted in the recovery of a quantity of white powdery substance - suspected to be heroin - concealed in a double layer secret compartment located at the bottom of the trunk. The respondent was then promptly placed under arrest and the trunk with its contents seized.

[5] The powdery substance was then duly sent to the Government Chemist Mr Chong Sip Seng (PW1), who examined and analysed it according to the usual procedures, and, as a result, confirmed the suspicions of the Customs Officers, that it did indeed contain heroin, a dangerous drug within the meaning of s 2 of the Dangerous Drugs Act, having a net weight of 2233.9 grams

[6] The Chemist also examined the trunk and found that it had a specially constructed double layer bottom which had been opened up at three of its edges. He also found traces of the white powdery substance containing heroin in the double layer bottom of the trunk.

[7] In ruling that the prosecution had failed to tender evidence which, if unrebutted would warrant a conviction, the trial Judge relied upon two grounds; that is to say,

(a) the conduct and demeanour of the respondent at the time of his arrest and shortly thereafter and, more importantly,

(b) the wholly exculpatory cautioned statement of the respondent made the day after his arrest.

[8] As to the conduct and demeanour of the respondent, the trial Judge referred to the testimony of the Head of the Preventive Branch, Customs and Excise, Encik Mohd Daud bin Md Ali (PW9), who witnessed the discovery of the heroin. According to this witness, the respondent "shook his head in disbelief as to how the thing came to be there", was "calm", and "did not try to be evasive", and was "cooperative".

[9] As to the cautioned statement of the respondent, the trial J