JUDGMENT

Abdul Malik Ishak J

Amir bin Mahmood ('the first accused') was jointly charged on the following amended charge with that of Mohd Zahar bin Nor ('the second accused'):

Bahawa kamu pada 22 Julai 1994 jam lebih kurang 11.20 malam di tempat letak kereta, Lapangan Terbang Sultan Ismail, Senai, Johor Bahru, dalam Negeri Johor, bagi mencapai niat bersama kamu semua, telah didapati mengedar dadah berbahaya iaitu 1,835.7g cannabis dan dengan itu kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952, dan boleh dihukum di bawah s 39B(2) Akta yang sama dibaca bersama-sama dengan s 34 Kanun Kesiksaan (FMS Cap 45).

Kamsan bin Bujamin (the third accused and for the purpose of this judgment he will be referred to as 'John') was charged on the following amended charge:

Bahawa kamu pada 22 Julai 1994 jam lebih kurang 11.20 malam di tempat letak kereta, Lapangan Terbang Sultan Ismail, Senai, Johor Bahru, dalam Negeri Johor, telah didapati melakukan persediaan untuk tujuan memperedarkan dadah berbahaya, iaitu 1,835.7g cannabis dan dengan itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(c) Akta Dadah Berbahaya 1952, dan boleh dihukum di bawah s 39B(2) Akta yang sama.

Mr Iskandar Shah bin Ibrahim, the learned deputy public prosecutor, applied for all the three accused persons to be tried together under s 170 of the Criminal Procedure Code ('the CPC'). The three defence counsels for all the three accused persons acceded to this request and so the trial proceeded on that footing. Section 170 of the CPC envisages the situation where there has to be more than one accused person and that they may be accused of the same offence or different ones, and the offences were committed in the same transaction. Obviously, s 170 of the CPC by the very words employed therein provides for joinder of offenders. Perhaps the best example of s 170 of the CPC is reflected in the case of Jayaraman & Ors v PP , [1979] 2 MLJ 88 where eight accused persons were tried together on four charges each of culpable homicide not amounting to murder. Then again in the case of Tan Kheng Ann v PP ; [1965] 2 MLJ 108 where 64 accused persons who were charged with three offences of illegal assembly with intent to cause the death of three persons were tried jointly as the offences were said to be committed in the same transaction. Be that as it may, by way of an observation, I need to state the obvious. It is this.

As an agent provocateur detective lance corporal 68642 Arshad bin Awang (PW5-'Arshad') played a key role in the arrest of the three accused persons. One would have thought that Arshad would be able to give flawless and impeccable evidence but as Arshad took to the witness box his lapses in memory were quite apparent. The learned deputy public prosecutor had, at least on two occasions, to remind Arshad to be careful and to remember the whole episode accurately. I felt that this preliminary observation of Arshad should be recorded as the prosecution must have been under the delusion that Arshad was an exemplary witness. On discrepancies in the evidence of witnesses, there are reported authorities that need to be referred to and would, in the final analysis, decide the quality of Arshad as a prosecution witness.

In Fernando v R , [1959] MLJ 157 at p 159, Rose CJ said:

... discrepancies in the accounts given by these various officers is a matter which might well be thought to be in favour of their truthfulness rather than the reverse.

In Balasingham v PP , [1959] MLJ 193 at p 194, Ismail Khan J held the view that:

After all there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances.

In Khoon Chye Hin v Public Prosecutor , [1961] MLJ 105 at p 107, Thomson CJ laid down a very sensible rule when he said:

If a witness demonstrably tells lies on one or two points then it is