(delivering the judgment of the court): The appellants were jointly charged with trafficking in 1,614.1g of cannabis on March 1986, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and punishable under s 39B(2) of the Act read with s 34 of the Penal Code (FMS Cap 45) (the Code). They were both convicted and sentenced to death by the High Court at Ipoh on 2 March 1991.

The case for the prosecution was that the police received information that a Ford Capri motor car with registration number AR 497 was carrying drugs from Taiping to Lumut. Acting on the information, the OCPD organized an ambush with four unmarked police cars and waited at the junction of Taiping-Changkat Jering roads. At about noon, a Ford Capri AR 497 was seen coming out of a petrol station and proceeded towards Trong/Bruas. Three police cars followed the Ford car. After travelling about 11/2 miles, PW4, a policeman in the first car, saw a bundle being thrown out of the left window of the Ford car. He stopped his car and picked up the bundle which was a batek cloth pillow case stuffed with cannabis. The OCPD, who was driving the second car, continued to follow the Ford car and some 31/2 miles away found it had come to a stop after meeting with an accident. In the car he found the appellants with a 15-month-old child in the arms of the second appellant. He placed them under arrest. Whilst there, PW4, who had collected the drugs from the roadside, arrived and showed it to the OCPD. He was directed to keep the drugs and hand it over to the investigating officer.

All the police officers except PW4 returned to the Kuala Kangsar Police Station with the appellants arriving there at about 1pm.

PW4 said he went alone to the Changkat Jering Police Station with the drugs and waited there for further orders. He eventually returned to the Kuala Kangsar Police Station arriving there at about 5pm. He waited for the investigating officer and handed over the drugs to him at about 6pm that day. The investigating officer handed over the drugs to the chemist for examination on 12 March 1986. The drugs that were handed over to the chemist were not marked until it was packed six days after the investigating officer had received it from PW4. There was no explanation what PW4 did with the drugs for more than five hours before he handed it over to the investigating officer. We are of the view that these are senous gaps in the chain of evidence with regard to the drugs thrown out of the car and the exhibits produced in court. On this ground alone, the appellants should not have been called upon to enter into their defence.

Next, there was no evidence of common intention as intended by s 34 of the Code. All that the prosecution was able to show as that the appellants are husband and wife; that in their house were two pillows, one with a pillow case identical to that in which the drugs were found and another identical pillow was without a pillow case; and that drugs were thrown out of the car when they were both in the car. There was no evidence as to who actually threw out the bundle but it was sought to be inferred it must be the wife-appellant as the bundle was thrown out of the left side of the car, the car having only two doors and the wife-appellant sitting next to the husband-appellant who was driving the car.

Even assuming that there is no break in the chain of evidence regarding the drugs from the time of its initial recovery by the police from the roadside until its production in court at the trial, at best the evidence showed that one of the appellants must have had custody or control of the drugs to throw it out of the car. But who?

The prosecution also attempted to show that the first appellant must have known of the existence of the drugs in his car because he drove the car very fast on realizing that he was being pursued by three police cars. The police may have been chasing the first appellants car but it does n