Gopal Sri Ram JCA:

[1] The appellant was charged, tried and convicted of an offence of trafficking under s. 39B(2) of the Dangerous Drugs Act 1952 ("the Act"). He received the mandatory death sentence.

[2] The facts are these. On 24 February 1994, at about 2.45pm, PW4 (Corporal Mohd Fuad bin Jaafar) and five other police personnel were on duty at the check point at the Immigration Complex at Bukit Kayu Hitam. The appellant, a Thai national came to the check point. He was on foot. He had a Thai passport and was seeking to enter Malaysia. He was not carrying anything in his hands. He wore a jacket. PW4 then searched the appellant. This initial search yielded results. A small packet was found in the left pocket of the appellant's jacket. It contained dried leaves which PW4 suspected to be cannabis. The appellant was then taken to the police booth where a second search of his person was conducted. The appellant was found to be wearing three layers of clothing. This second search also yielded results. Two other packets were found. They were attached by cello tape to the appellant's 'T' shirt. These two packets also contained dried leaves. Subsequent examination by the Government chemist revealed that the packets found on the accused's person contained 1,214 gm of cannabis. The appellant was, as we have already said, charged with trafficking this proscribed drug and convicted of that offence.

[3] Before us, the conviction was challenged on the ground that the evidence of the chemist (PW3) was unsatisfactory and suspect. It was submitted that PW3 was unsure whether the leaves in question were cannabis or marijuana. It was further submitted that the prosecution, on the basis of PW3's evidence had failed to prove beyond a reasonable doubt that the leaves were cannabis. In his response, the learned deputy took us through PW3's evidence in some depth and demonstrated that this witness had not said that Indian hemp and cannabis was the same thing. All that PW3 had said was that as far as he was concerned the two terms were synonymous. The learned judge accepted the chemist's evidence and found the drug in question to be cannabis. Having carefully considered the whole of PW3's evidence we were satisfied the prosecution had established beyond a reasonable doubt that the leaves were cannabis. That is all that the law requires. See, Abdullah bin Yaacob v. Public Prosecutor [1991] 2 MLJ 237; Kesavan v. Public Prosecutor [2003] 1 CLJ 846. Accordingly we are satisfied that the learned judge did not misdirect himself on this part of the case.

[4] Although the appeal was confined to the attack on the chemist's evidence, we took the precaution of carefully scrutinising the evidence on record and the judgment of the learned judge to ensure that the appellant's conviction was safe. In his judgment the learned trial judge, after a careful summary of the evidence correctly took the view that on the facts established it was not necessary for the prosecution to rely on the presumption under s. 37(da)(vi) as this was a case of actual trafficking. There is however an observation we would make on a point of some importance.

[5] Hearkening to fundamentals, it is a requirement of essential justice that an accused should be made aware at the earliest opportunity of the nature of the case he has to meet. In the case of a charge of trafficking, there is a wide range of options open to the prosecution to present its case. It may seek to make out a case of actual trafficking. Or it may seek to rely on one or more of the presumptions in s. 37(da) of the Act to raise a case of trafficking. But the court and the accused must be informed at the earliest possible stage as to which option the prosecution seeks to pursue. This will assist the court to focus on the relevant evidence and enable the defence to direct its cross examination on the material points. We would in this context mention the very recent decision of the Federal Court in Public Prosecutor v. M