A trial judge's failure to accurately record evidence can constitute a misdirection affecting the appellant's case.

[1] At the High Court in Shah Alam, the appellant was charged and convicted under s 39B(1) (a) of the Dangerous Drugs Act 1952 ( DDA ) and was sentenced to the mandatory death sentence under the Act. His appeal came before us on 7 November 2014. By a unanimous decision we have allowed the appeal in part. We now give our reasons for our decision.

The Prosecution's Case

[2] On 31 August 2010 at 9.00 am, D/Sjn/M Ghazali Md Zin (SP4) together with other police personels were making surveillance at the KLIA. Upon the arrival of Flight QR 620, SP4 saw the appellant looking suspicious. As soon as the appellant walked towards the exit door, SP4 approached the appellant, introduced himself and asked the appellant to produce his passport.

[3] SP4 together with the appellant then went to the scanning machine. SP4 scanned the bag (exhibit P18) which was carried by the appellant. At that point the appellant was seen restless and was described by SP4 as "gelisah, berpeluh dan takut". The scan did not show any suspicious image.Subsequently, SP4 brought the appellant to the Narcotic Office in KLIA situated on the same floor.

[4] A body search conducted on the appellant found nothing. SP4 inspected (exhibit P18) and found personal items belonging to the appellant (exhibits P22 to P31) inside the bag. SP4 detected a bulge on the surface of P18, unscrewed the surface and cut the fabric and found inside the bag's compartment a hard cover. SP4 then peeled the hard cover and found white powder and small pieces of white crystals all over the compartment.

[5] SP4 showed the powder and the small white crystal pieces to the appellant and removed them from the bag compartment. SP4 then put the powder and white crystals into 3 plastic packets (exhibits P9, P11 and P13) and tied them with one rubber band for each packet. SP4 placed his signatures and put the dates as 31 August 2010 on each of the packets.

[6] The appellant and the seized items were brought to IPD Sepang and were handed over to the Investigating Officer, Inspector Haryati binti Zahrudin (SP5). It was later confirmed by the Chemist Dr Vanitha Kunalan(SP1) that the white powder and white crystals were methamphetamine weighing 1478.4 grams.

[7] At the end of the prosecution's case, the learned trial judge noted that P18 containing the impugned drugs was under the control of the appellant from the time the appellant was arrested. On that reason the learned judge found possession by the appellant and invoked s 37(d) of the DDA . A case of trafficking under s 2 was made out when the judge found that the amount was excessive for own consumption. The appellant was called to enter his defence.

The Defence Case

[8] The appellant maintained that he did not have knowledge about the drugs in P18 because it was given to him by his cousin known as Ali Reza. On oath, he testified said he was a welder earning USD300 to USD500 per month. He left Tehran on 27 August 2010 for Kuala Lumpur via Damascus. He went to Ali Reza's house on 26 August 2010, the day before he travelled. When Ali Reza saw a bag pack he was taking with him, Ali Reza told him the bag pack was too small. A small bag would not be good to carry back clothing and shoes that he was to buy in Malaysia. He left his belongings to be packed by Ali Reza. The next day on 27 August 2010 Ali Reza brought P18 to the appellant at Tehran's bus station. Ali