Hashim Yeop Sani CJ (Malaya):

The respondent was originally charged under s. 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking in 34.81 grammes of heroin at No. 84 Jalan Hashim, Muar, Johor. It was the prosecution evidence that when the police raided the house at the address stated in the charge a package containing what subsequently was certified by the chemist to be heroin was found near the respondent. At the close of the prosecution case the learned Judge amended the charge to one punishable under s. 39A(2) of the Act. The respondent pleaded guilty to the amended charge and was sentenced to 11 ½ years imprisonment with effect from the date of his arrest and the mandatory 10 strokes of the rotan.

There is really only one issue in this appeal by the public prosecutor. We are to concern ourselves only with the question whether on the evidence adduced it was correct and proper for the learned Judge to amend the charge as he did after the close of the prosecution case. It was the contention of the public prosecutor that the learned Judge erred in law and in fact when he concluded that the evidence of the chemist (PW5) was "sketchy" and "unsatisfactory" and therefore unacceptable.

In his brief written grounds of judgment the learned Judge sets out the reasons for his opinion for not accepting the evidence of the chemist as follows:

(a) There was no evidence as to why or how the chemist found the plastic packet to contain 75.18 grammes of greyish brown substance. There was also no evidence as to whether the chemist used an instrument for weighing the substance or if he did so use an instrument, how that instrument worked and whether it was in proper working order and duly serviced.

(b) There was no evidence as to how the analysis was conducted or as to who conducted the analysis to the end that the chemist found the substance to contain 34.81 grammes of heroin.

The rest of the reasons set out would appear to reflect the doubt in the mind of the learned Judge as to the accuracy of the weight of the heroin so as to invoke the presumption of trafficking under s. 37(da)(i) of the Act.

To see whether the learned Judge was justified in entertaining the doubt in his mind, we have to look at the evidence of the chemist. For convenience the relevant parts of the evidence in examination-in-chief of the chemist are reproduced below.

SD.5: Chang Eng Thuan a/s in English. 44 years old. Director of Chemistry of the State of Johor.

Obtained B.Sc. Hons. in Chemistry from U.M. Chartered Chemist C. Chem Awarded Fellow Royal Society of Chemistry FRCS from England. Fellow Malaysia Institute of Chemistry MMIC. Now serving as Council Member in that Institute. Represented Malaysia to attend the U.N. Narcotic Expert Group. Served in Dept. of Chemistry for 22 years. I have testified as expert witness in many Court cases. My evidence has all the time been accepted by the Court.

All these envelopes sealed with police seal Polis Di R.M. 178. I examined all the 9 exhibits. In envelope A I found a plastic packet in which was a Chinese newspaper packet containing another plastic packet containing 75.18 grammes of a greyish brown substance which on analysis I found to contain 34.81 grammes nett of heroin.

Heroin is a dangerous drug as defined in s. 2 of the DDA.

The colour and texture of the contents of ID.8C are different from the time when I carried out the analysis. This is because when I carried out the analysis I had to powder the greyish brown substance into very fine powder for homogeneity of the analysis, to obtain an accurate result.

In this case the % of error of heroin quantitative analysis is + - 1.0567% and I have given full benefit of the doubt to the accused by substituting 1.0567% from the % of heroin which I obtained from my analysis. The error would be positive or negative. We give benefit to the negative error.

In cross-examination the chemist said:

From Ex. 8C I cannot remember exactly but I think I took out about 10 gramme