Arifin Zakaria FCJ:

[1]The three appellants were charged in the High Court, Criminal Division, Kuala Lumpur, for an offence of trafficking in dangerous drugs, to wit 61.1 grams monoacetylmorphines, an offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") and punishable under s. 39B(2) of the Act. They were found guilty by the High Court and sentenced to mandatory sentence of death. On appeal, the Court of Appeal by a majority affirmed the conviction and sentence and hence this appeal. For convenience, in this judgment I will refer to the appellants as the 1st, 2nd and 3rd accused, in the order they were referred to in the trial court.

[2]First, the narration of the prosecution case. On 3 February 1999 at around 10.25pm a police team headed by Chief Inspector Rajendran (SP4) raided an unnumbered squatter house at Kg. Sam Yoke, Jalan Sungei Besi, Kuala Lumpur. Accompanying him were eight other police officers. On reaching the house, they found the door was opened, and upon entering the house they found 10 male Indians in the "lounge". They were all watching television. SP4 introduced himself as "police" and directed his men to arrest the 10 male Indians. In the meantime he noticed a male Indian (subsequently identified as the 2nd accused) opening the door to the room next to the hall. In this judgment I shall refer to it as "the room". SP4 then tried to push open the door but was resisted by the 2nd accused. He then kicked open the door and rushed into the room followed by two of his men, Lance Corporal Duraiyappa (SP6) and Detective Lance Corporal Ahmad Kamil. In the room, SP4 found two more male Indians, the 1st and 3rd accused, who were sitting cross-legged on the floor, shirtless. The following items were found in the room:

(i) One big transparent plastic packet containing yellow powder and 'ketulan' suspected to be heroin;

(ii) Two transparent plastic packets which have been sealed, each packet containing two bundles of small plastic packets, each bundle containing 20 small plastic packets totaling 80 and each small plastic packet contained yellow powder and 'ketulan' suspected to be heroin;

(iii) One transparent plastic bowl containing yellow powder and 'ketulan' suspected to be heroin;

(iv) One metal container of Tong Kee Brothers Confectionery' containing 56 sealed, small plastic packets each of which contained yellow powder and 'ketulan' suspected to be heroin;

(v) a transparent plastic packet containing one bundle of small plastic packets which were empty;

(vi) one pink plastic packet containing empty transparent plastic packets;

(vii) a weighing machine with a brand name of 'Tanita';

(viii) one heat-sealer with a brand name of 'impulse' which was lighted;

(ix) a bunch of six keys;

(x) a pair of scissors black in colour.

Out of these, according to SP4, the following were found in front of the 1st and 3rd accused:

(a) mangkok plastik lutsinar yang mengandungi serbuk dan ketulan berwarna kuning yang disyaki dadah heroin;

(b) peket lutsinar yang berisi satu ikatan peket-peket plastik kecil yang kosong;

(c) peket plastik berwarna merah jambu berisi peket-peket plastik lutsinar yang kosong.

(d) alat penimbang digital jenama 'Tanita';

(e) 'heat-sealer' jenama 'Impulse'; dan

(f) gunting berwarna hitam..

[3]The yellow powder and "ketulan" (lumps) found in the plastic packets and in the plastic bowl were confirmed by the chemist to be monoacetylmorpines, one of the dangerous drugs listed in Part III, of the first schedule of the Act, weighing 61.1grams. The three accused were accordingly charged with the offence of trafficking in the said drugs.

[4]The petition of appeals contained a number of grounds, some of which are overlapping. In these appeals I only need to consider the two main grounds canvassed before us, these are:

(a) Failure of the trial judge to consider the issue that the charge against the three accused was a joint charge; and

(b) Failure of the trial judge to critically scrutinize the e