Abdul Wahab Patail J:

The accused, Teh Eng Wah, is charged for the offence of trafficking, punishable under s. 39B of the Dangerous Drugs Act 1952 (DDA) as follows:

Bahawa kamu pada 8.11.1997 jam lebih kurang 10.30 p.m., berhampiran perhentian teksi, di hadapan Bank Bumiputra, Jalan Tuanku Abdul Rahman, dalam Bandaraya Kuala Lumpur dalam Wilayah Persekutuan telah mengedar dadah berbahaya iaitu 45.3 gram monoacetylmorphines dan oleh 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.

The prosecution case is that pursuant to information received by A/ASP Zaiton bt Mohd Noor (PW3) that a trafficking transaction will be carried out in front of Bank Bumiputra at Jln Tuanku Abdul Rahman, involving a white Proton Aeroback car with registration number CAC 4631, a police ambush was set up at the said location; and the accused was arrested while trying to run away after the car he was driving, being as described, was blocked by the police after he had stopped at the bus stop in front of Bank Bumiputra at Jln Tuanku Abdul Rahman. Substance (suspect substance) suspected to be heroin was found in the boot of the car packed in 180 sealed plastic packets wrapped in 18 newspaper wrapped packages, further wrapped, half a dozen in each of 3 plain brown paper packages, and placed in a shoe box with the brand name 'Camel'.

The prosecution in this regard relies primarily upon the evidence of PW3.

PW3 had said that after she had introduced herself as "police", the accused opened the door of the car and attempted to run away. She said:

... dan perkenalkan diri. Pada masa itu pemandu CAC 4631 membuka pintu keretanya dan terus keluar dan lari. Lebih kurang 3 langkah dari kereta itu, anggota saya dapat tangkap dia. Dia Seorang lelaki Cina. Sgt. Ruslan dan Insp. Shaiful yang menangkapnya.

Insp. Shaiful Idzam bin Hj. Sulaiman (PW4) gave evidence that he arrested the accused about 1 meter from the car. It was suggested in cross-examination that the accused was not attempting to run away. However no evidence was adduced by the prosecution as to the relative positions of the car, the police officers and the accused as to dispose of any doubt that the accused might well have come out of the car in response to PW3's approach. One meter from the car is not any distance from the car as to clearly evidence an attempt to distance himself from the car. In the circumstances I cannot conclude that the accused was in fact attempting to run away.

In any event, the single fact that the accused tried to run away is not conclusive as to incriminating or guilty knowledge. In Abdullah Zawawi bin Yusoff v. PP [1993] 3 MLJ 1 SC:

We now come to what does seem to us to be evidence of a potent kind against the appellant, namely his conduct in taking to his heels upon Insp. Mat Yusoff announcing the discovery of the drugs at the box. This conduct of the appellant was consistent with his having known of the presence of the drugs in the box before their discovery, indicating thereby a sense of guilt.

On the other hand, it was conduct equally consistent with the appellant having been in a state of pure panic, bearing in mind that it was only after Insp. Mat Yusoff announced the discovery of the drugs that the appellant took to his heels. An innocent man faced with the prospect of arrest on a capital charge might foolishly react in that way. It is true that the appellant himself denied running away but we agree with the judge that the appellant lied on this point, but this does not preclude us from drawing such inferences as may be justified from the evidence adduced by the prosecution.

The Jamaican Privy Council case of DPP 'v. Brooks, cited to us.

Concern arises from the fact that PW4 had also contradicted PW3 as to the inspection conducted upon the contents of the 'Camel' brand shoe-box found in the boot of the car CAC 4631. PW3 had said in evidence emphatically