Abdul Hamid Omar LP:

This appeal by Pang Chee Meng is against his conviction and sentence by the learned Judicial Commissioner sitting at Kuala Lumpur on a charge as follows:

Bahawa kamu pada 12 September 1987 jam lebih kurang 2.10 pagi di rumah No. 13F Jalan Kalong off Jalan Sungei Besi, di dalam Bandaraya Kuala Lumpur, di dalam Wilayah Persekutuan telah mengedar dadah berbahaya, iaitu 353.86 gram heroin dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952 (Disemak 1980) dan boleh dihukum di bawah s. 39B(2) Akta yang sama.

Karpal Singh appearing on behalf of the appellant urged that the appeal be allowed and the conviction set aside principally on ground that the learned Judge was wrong in admitting a statement made by the appellant in answer to a question put to him by Inspector Kamaruddin (PW1) as information admissible under s. 27 of the Evidence Act. Karpal Singh contended that (a) the said information had not been the subject of a contemporaneous record and (b) there were serious contradictions in the evidence of PW1 and PW6 in regard to the statement to justify the admission of such evidence as information leading to the discovery of the drug.

Three other subsidiary grounds were also raised:

Firstly, the learned Judicial Commissioner was wrong (a) in not concluding the room was not exclusively occupied by the appellant; secondly, in concluding the existence of Ah Seng and Ah Fatt as the other co-tenants of the room difficult to believe; thirdly, in drawing an adverse inference against the defence for failing to call the appellant's sister, Phang Sow Ying, as a witness.

The undisputed facts of the case are simple. Acting on information, the police laid an ambush for the accused near the place where the accused was known to be living. Upon arrest, the accused allegedly gave information to the police party which led to discovery of heroin, the subject matter of the charge. The drugs were found in a room he was known to be living. At all times, after his arrest, the accused denied any knowledge of the drugs or that he gave any information. He maintained that he was not proficient in Bahasa and that he did not have exclusive possession of the room where the police found the drugs. In a cautioned statement following his arrest he named two persons sharing the room with him. Upon defence being called he chose to give evidence on oath and there appears nothing improbable with his version, whether true or not. Unfortunately, the trial was conducted rather haphazardly in that on some occasions inadmissible evidence was recorded although later rectified. The police investigation cannot be said to be very satisfactory. As for the information given by the appellant, Inspector Kamaruddin (PW1) who initially introduced in evidence such information said that in reply to his question

Di mana lu simpan itu dadah? (Where do you keep the drugs?),

the appellant replied:

Saya simpan di bilik atas room saya. (I keep in my room upstairs.)

At this juncture the defence objected to the admissibility of the statement on ground that as the appellant was under arrest and no caution was administered the statement was therefore not admissible. The learned Judicial Commissioner ruled in favour of the defence and held that the statement made by the appellant

Saya simpan di bilik atas room saya

was not admissible. Subsequently, however, Inspector Kamaruddin was recalled by the prosecution and the information given by the appellant was again adduced and at that point of the proceedings the appellant is alleged to have said:

Itu barang tidak ada di kereta. Itu barang ada atas rumah. (The thing is in the house upstairs.)

However under cross-examination, Inspector Kamaruddin stated that the appellant's response to his question was:

Tiada di dalam kereta tetapi ada di rumah.

Thereafter the prosecution proceeded to adduce evidence from PW6 who said that he heard Inspector Kamaruddin asking the a