(Oral)

Gopal Sri Ram JCA:

This is the judgment of the court

The appellant before us was convicted for the offence of trafficking in dangerous drugs. He was sentenced to the mandatory death penalty prescribed by the Dangerous Drugs Act 1952 ("the Act").

At the outset we should mention that the drug concerned is cannabis weighing about 133kgs. The importance of the weight will become apparent later in this judgment. But we must first hearken to the facts.

PW15 is a lance corporal in the police force. On 17 January 1997 at about 4pm he received instructions from his superior, Inspector Mohan, to carry out surveillance on a male Malay who was using car registration number WED 577 at Kampong Chubadak, Sentul Pasar, Kuala Lumpur. It would appear that Inspector Mohan did not play any other role in the matter and it therefore comes as no surprise that he was not called by the prosecution.

Acting upon the instructions to which we have referred, PW15 proceed to the area in question and commenced his surveillance. At about 4.30pm on 17 January 1997 PW 15 saw the target vehicle being driven by a male Malay who was later identified as the appellant. PW15 then followed the target vehicle. He saw it being driven into the front of a house in Kampong Chubadak. He saw the appellant entering the house. The appellant wore a baseball cap. Having noticed these things, PW15 continued to hold surveillance. At about 9.45pm that night he saw the appellant emerging from the house.

The appellant went to the target vehicle. He opened its doors. He partially entered it. PW15 could see the bent body of the appellant. He observed the appellant busying himself with something inside the car. This activity went on for about 20 minutes. It is apparent from the evidence that PW15 had kept his eyes peeled to the appellant's activity. After a lapse of about 20 minutes the appellant re-emerged from the target car and once again entered the house. PW15 then conveyed the results of his observation to his superiors.

In the early hours of 18 January 1997 - in the evidence it is stated as 3.15am - a police party led by PW17 raided the house in question. They were met by the appellant's mother at the front door and permitted to enter. They proceeded to a room in the house. They knocked on its door. There was no response. So they kicked it open and entered. The appellant who was obviously asleep awoke. He was asked for his identity card. In response he pointed to a bag in the room. A search of that bag revealed a key. The police used that key to gain access into the target vehicle. They found in it, both in the front and back seats as well in the boot, clear plastic bags containing substances which on subsequent chemical analysis was found to be cannabis. The appellant was arrested, charged and convicted of the offence which we have already described.

Before us a number of grounds were succinctly argued by learned counsel for the appellant. We do not think that we would be doing any injustice if we summarise his complaints under three broad headings namely:

(i) The quality of the identification evidence;

(ii) The learned judge misdirected himself when he found the appellant guilty of trafficking by transportation; and lastly

(iii) The learned judge was wrong in amending the charge originally framed by the public prosecutor.

We will deal with each of these grounds in succession.

The Identification Point

Now, the essence of counsel's argument is that the judgment of the learned judge is bereft of any reference to the guidelines regarding identification in R v. Turnbull[1976] 3 All ER 547. It is submitted that the failure of the learned judge in the present case to address his mind to the principles in Turnbull's case is a serious misdirection. Counsel then drew our attention to several passages in the judgment relating to the issue of identification. Mr. Gurbachan said that the identification is based on evidence of a fleeting glance. He said that there is here a wh