Mohd Saari Yusoff JCA:

This appeal was against the decision of the High Court of Sandakan in which the appellant ("the accused") was convicted on a charge of trafficking under s. 39B(1)(a) DDA 1952and was sentenced to death under s. 39B(2) thereof. At the conclusion of the hearing, we unanimously dismissed the appeal.

The charge against the accused reads:

That you, on the 1st day of February 1990 at about 12.35 a.m., Jalan Batu Sapi, Pasir Putih, the District of Sandakan, in the State Of Sabah, on your own behalf did traffic in a dangerous drug, to wit 1,241 grammes of Cannabis and that you have thereby committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952(Revised 1980) and punishable under Section 39B(2) of the same Act.

The Prosecution's Case

Briefly, the facts are as follows. On 31 January 1990 at about midnight, PW4 was in his taxi no. SS 7011 in front of Sandakan market when PW4 was approached by the accused. They struck a bargain whereby PW4 agreed to take the accused to Jaya Chip which was at the end of Jalan Batu Sapi for a fare of RM10. The accused boarded the taxi and sat in the front passenger seat next to PW4. There was no other person in the taxi.

At the time of boarding the taxi, the accused had a striped bag (P7) and a blue jacket (P8) with him. The taxi proceeded to Jaya Chip viaPasir Putih. On reaching Pasir Putih, the taxi stopped at a road-block which was set up by the police. At the road-block, the accused came out of the taxi at the request of PC Aziz (PW3). After having alighted from the taxi, the accused attempted to run away but PW3 caught him by the collar of his shirt. The accused put up a struggle before being handcuffed. On checking the front passenger seat, PW3 found a jacket on top of the striped bag (P7). PW3 took the bag to the bus stop near the road-block. In examining the bag, PW3 found a plastic bag therein with the word "Ajinomoto" written on it. In the plastic bag there were two packages stuffed with dried leaves. The police sent the dried leaves to the chemist for analysis. The result of the analysis was that the dried leaves in the two packages were cannabis within the meaning of s. 2 DDA 1952 and weighed 1,241 grammes.

The Case For The Defence

The case for the defence was that on the night in question, the accused had gone to a fish market at Sandakan with two others. From the fish market, the accused took a taxi to go to Kg. Bahagia. While enroute to Kg. Bahagia, the taxi stopped at a road-block at Pasir Putih. At the road-block, on instruction of the police, he alighted from the taxi and went to a bus-stop nearby. While at the bus-stop, the police handcuffed him. The accused denied carrying anything when he boarded the taxi. He also denied that PW4 was the driver of the taxi. In short, the defence was one of frame-up.

The Issues

At the hearing of this appeal, the issues which emerged were as follows:

i) whether the accused had actual possession of the impugned drugs;

ii) whether the impugned drugs were adequately examined and analysed by the chemist (PW1).

On The First Issue

The learned DPP submitted that, though there was no affirmative finding by the learned trial judge that the accused was in actual possession of the impugned drugs on the principle as enunciated in Muhammad Hassan v. PP[1998] 2 CLJ 170FC, there was sufficient evidence to support a finding that the accused was in actual possession of the impugned drugs. Evidence led by prosecution and accepted by the trial judge may be enumerated as follows:

i) at all material times, PW4 was the driver of the taxi with the accused sitting next to the former. Such finding was supported by the evidence of police personnel;

ii) at the time of boarding the taxi, the accused was carrying a striped bag (exh. P7);

iii) while in the taxi, the accused placed the bag and the jacket on his lap;

iv) on sighting the road-block, the accused requested PW4 to turn back to town;

v) on nearing the road-block, the accuse