The appellant, Lee Look, was charged in the Sessions Court Kuala Lumpur for trafficking in dangerous drugs, to wit, heroin weighing 15.29 grammes under section 39B(1) (a) of the Dangerous Drugs Act, No. 32/52, and was on July 11, 1979, convicted and sentenced to life imprisonment and two strokes of the rattan under sub-section (2) of section 39B of the said Act.

On appeal against conviction and sentence, Mr. K. Chandra, counsel for the appellant, stated that at the time of the alleged offence on December 6, 1978, the presumption of trafficking under section 37(da) of the said Act did not apply and the entire prosecution's case depended on the cautioned statement marked exhibit P.7. Counsel also informed the Court that although the learned President's judgment was undated it was only supplied to him about two years after the trial. He pointed out that the learned President had difficulty in stating the grounds on which the accused was found guilty of trafficking because the only evidence of trafficking was in the cautioned statement which somehow was missing soon after the case was completed and was not available at the time he wrote his judgment two years later. In any case, it was also the submission of counsel that the learned President should not have admitted the cautioned statement because it was recorded by the investigating officer (P.W.2) whom he pointed out was very involved in the investigation of the whole case and was therefore not unbiased when he recorded the cautioned statement.

The learned Deputy Public Prosecutor conceded that as a matter of prudence the investigating officer in this case should not have recorded the cautioned statement, but stated that the learned President had found that the statement made by the accused was voluntary. He also submitted that the investigating officer was not actively involved in the case.

Having perused the recorded evidence, I was satisfied and agreed with learned counsel for the defence that the investigating officer (P.W. 2) was definitely involved in the investigation of this case so that there was likelihood of bias on his part. The former Court of Appeal in Cheong See Leong v Public Prosectuor [1949] MLJ 67 has held, 'inter alia', that the principle that a judicial officer who is interested in a case should not sit to adjudicate upon it applies in regard to interpreters. In that case, the former Court of Appeal also held that the use of the Detective Sergeant, who was fully conversant with the material facts and was subsequently called by the prosecution as their principal witness to prove those facts, as an interpreter in taking the statement from the appellant in that case, offended against the elementary ideas of justice and therefore no reliance could be placed on the accuracy of that statement. Similarly in this case, following the former Court of Appeal's decision in that case, I considered that the use of the investigating officer, who was actively involved in the investigation of the case and who was subsequently called by the prosecution as a witness, as a recording officer in taking the cautioned statement from the appellant resulted in the likelihood of bias on his part. In the circumstances the learned President should have as a matter of law and fact held that the cautioned statement was inadmissible in evidence as it might result in a miscarriage of justice. In any case, as the cautioned statement (P.7) was missing it did not form part of the appeal records available for my perusal as an appellate judge. On the recorded evidence in the appeal records there was therefore only evidence to prove that the appellant was guilty of an offence of possession of dangerous drugs under section 12(2) of the said Act. I therefore quashed the conviction of the accused under section 39B(1) (a) of the said Act and substituted therefore a conviction under section 12(2) read together with section 39A of the said Act. The sentence of life imprisonment and tw