Shaik Daud Ismail JCA:

On 10 September 1994, the Shah Alam High Court convicted the appellant on a charge of trafficking in 1284.02g of ganja which offence was alleged to have been committed on 23 May 1990, under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (hereinafter referred to as 'the Act') and under s. 39B(2) of the Act sentenced the appellant to death. There is no dispute that the substance seized were in fact ganja as defined in s. 2 of the Act .

The facts of the case are that on 23 May 1990, at about 10.40 p.m. a police party led by Inspector Sia Siew Keng (SP3), presumably on information received, raided premises number 14A Jalan Kapas, Pelabuhan Kelang. The police party conducted a search of the premises, and in one room, marked B3 in the sketch plan, was found two plastic bags containing what was suspected to be ganja. One plastic bag yellow in colour (P22) was found in an unlocked cupboard, and another bag red in colour was found on top of the same cupboard.

At the time of the police raid, there were in all five people in the said premises, three male Malays, namely, the appellant, Amirullah b. Hamzah (SP12) and Mohd. Musa bin Mukri (who had since passed away on 25 January 1991), one male Indian Kumaravelu a/l Nagalingam (SP10) and one female

Malay Intan Zamrud binti Harun (DW2). Also found in the premises was one newborn infant of Intan Zamrud, whose father apparently was Musa b. Mukri, a four-month old infant the child of appellant and one Juliana Kuan (SP11) and another eleven year old boy of Juliana Kuan. All the adults found in the premises, except DW2, were arrested for further investigations.

Earlier to the raid, at about 10.00 p.m. SP3 arrested one Ishak b. Hashim (SP9) at a restaurant in connection with another drug offence.

The evidence led by the prosecution showed that SP9 led SP3 and his police party to the premises. On arrival at the address which was on the upper floor of a double storey terrace house, SP3 faced with a locked grill door, asked SP9 to call out the name Din and soon after a male Malay, later identified to be the late Mohd. Musa, came down and opened the grill door. Immediately upon SP3 identifying himself as the police, the late Mohd. Musa ran upstairs followed by SP3 and his police team. In the living room SP3 found the five adults mentioned earlier.

There were in all five rooms in the premises. SP3 ascertained that the appellant and his girlfriend Juliana Kuan (SP11) occupied room marked B1, the late Mohd. Musa b. Mukri and his girlfriend Intan Zamrud binti Harun (DW2) occupied room marked B2 while room marked B4 was occupied by Kumaravelu a/l Nagalingam (SP10). The room B3, in which the drugs were found, was not occupied by anyone in particular. According to Kumaravelu (SP10), he rented room B4 from the appellant who was the chief tenant of the premises. He confirms the occupancy of the rooms in the premises as ascertained by SP3. According to SP10, room marked B3 was used by appellant as a store room and he himself had used the room. According to the evidence of Ishak b. Harun (SP9), before his arrest, at about 9.30 p.m., he went to the said premises where he met the late Mohd. Musa. According to SP9, Mohd. Musa took him into the room marked B3 which was not locked, and from a cupboard, took out a package and asked him to deliver it to one Wak Alip at the restaurant. At that time, SP9 states that appellant was in the sitting room with the others. Amirullah b. Hamzah (SP12) testified that he used to visit the premises two or three times a week and he confirmed that he himself used to enter room B3 which was never locked and he had seen the late Musa and appellant had also entered the room. He also said that that room was used for "solekan". Juliana Kuan (SP11) also testified that room B3 was used as a store room, and that it was never locked. It was used to keep old clothes and the room and the cupboard found therein were accessible to everyone living in the premises