Edgar Joseph Jr FCJ:

[1] In the view we took of this appeal, it is unnecessary for us to deal with the facts of the case, at any great length.

[2] Suffice it to say, so far as the facts are concerned, that this appeal is a sequel to our judgment in Public Prosecutor v. Alcontara a/l Ambross Anthony, [1993] 3 MLJ 568, wherein we had reversed the judgment of acquittal entered at the close of the case for the prosecution, by the Judge in favour of the accused, who is the appellant herein on a charge that he did, on 11 August 1987 at 5.30 am., at Jambatan Permatang Tok Labu, Kepala Batas, Seberang Perai, in the District of Butterworth, in the State of Pulau Pinang, traffick, in a dangerous drug, to wit, cannabis, weighing 70,952.1 grams, in contravention of s 39B(l)(a) of the Dangerous Drugs Act, 1952, ("the Act") on the ground of misdirection as to the sufficiency of the expert testimony of the chemist on the question whether the subject matter of the charge was "cannabis" within the meaning of s 2 of the Act. Pursuant to our order, the Judge was obliged to, and did, call upon the appellant to enter upon his defence. The appellant made his defence f rom the witness box but called no witnesses. In the event, he was convicted and sentenced to death, that being the mandatory sentence required by law. The appellant appealed against that conviction. At the conclusion of the ar guments, we allowed his appeal, quashed the conviction, set aside the sentence of death, and acquitted and discharged him. Our reasons for doing so now follow.

[3] The short facts were these: On the date, and at the time and place mentioned in the charge, acting on information received, a party of police personnel had stopped a Mitsubishi Colt Gallant car bearing registration No WBE 2789 being driven by the appellant who was the sole occupant thereof.

[4] The search conducted of the boot of the car resulted in the recovery of the considerable quantity of the cannabis hereinbefore mentioned. He was promptly arrested and later prosecuted as aforesaid. His defence, as deposed to from the witness box, was that he was an innocent carrier. More particularly, he claimed that he sold keropok (prawn crackers) for a living, that at the time of his arrest he honestly believed that he was conveying keropok, that he did so at the behest of a certain Che Mat for a fee of RM300 which had been paid and was in his pocket and that this money was amongst the various items seized by the police. This defence though it was not without flaws which need not detain us was entirely consistent with his cautioned statement made to the police on the day after his arrest, for in it, he had mentioned Che Mat, and a telephone number which he claimed was Che Mat's, but he was unable to give Che Mat's residential address. However, he had offered to lead the police to Che Mat's place of abode but the police had not given him the opportunity to do so. The Judge, however, found that the prosecution had established "an absolutely, overwhelming circumstantial case of exclusive possession, custody, control and knowledge of the cannabis recovered from the boot of the car, and that his explanation had failed to raise a reasonable doubt."

[5] The real point in this appeal arises from certain passages (specified below) in the grounds of the judgment wherein the Judge had criticised the defence, in terms which were totally unjustified.

[6] In the first place, the Judge had erred in his handling of the facts, when considering the defence case, in that he had assumed, contrary to the evidence, that there had been a belated disclosure of the defence and, in specifically relying on this as a ground for rejecting the defence. This is how he put it:

The accused did not deny that he was, at the material time of arrest, the sole occupant of the said car wherein exhibits P3 to P10 were found, but contended that at all material times he was labouring under the belief that he was conveying keropok in the boot of th