Syed Agil Barakbah SCJ:

The four appellants were tried and convicted of an offence under s. 39B(1)(c) of the Dangerous Drugs Act 1952 and were each sentenced to death by the High Court Judge, Penang. The charge against them reads:

That you on 20 February 1981, at about 1.30 pm beside the Ambassadress Hotel, Jalan Bangan Luar, in the District of Butterworth, in the State of Penang, in furtherance of the common intention of you all, did on your own behalf do an act preparatory to trafficking in a dangerous drug to wit 1,871.6 grammes of heroin, by arranging to deliver for sale such drug, in contravention of s. 39B(1)(c) of the Dangerous Drugs Act 1952 (Revised 1980) and that you have thereby committed an offence punishable under s. 39B(2) of the same act read with s. 34 of the Penal Code

Being dissatisfied with their conviction and sentence, they have appealed to the Supreme Court.

Before dealing with the grounds of appeal, we would like to touch on the salient facts of the case as accepted by the trial Judge. This was one of the cases where an officer of the anti-dadah section of the Royal Malaysian Police, Bukit Aman, Kuala Lumpur, Balbir Singh (PW3), worked together with an American agent of the drug enforcement administration of the United States, in the person of Raymond James McKinnon (PW1). The latter had about twenty-one years' experience in anti-narcotic activities and some time in 1981 was posted to drug enforcement administration Kuala Lumpur and had since assisted in Malaysian Police and customs in this field. He was a professional and claimed to have made four to five hundred arrests in the course of his twenty-one years' service.

On 27 January 1981 as a result of a meeting between the two who have worked before in anti-dadah activities, PW1 informed PW3 of his intended negotiation for the supply of 10 lbs of heroin in Penang. PW3 requested PW1 to keep him informed of future developments on the matter. They met again on 18 February 1981 in the rest house, Penang, where PW1 briefed PW3 and at the same time showed him RM100,000 cash in a briefcase which would be used for the purpose of purchasing the heroin. He also informed PW3 that the money would be kept in the boot of his car AB 3146 and requested PW3 to ensure the security of the money during PW1's meeting with the supplier.

According to PW1, prior to that, on 19 January 1981 he met the first appellant through the introduction of an informer. As a result of discussion, the three of them met again on 26 January 1981 at about 7.30 p.m. at Waterfall hotel, Penang. The discussion ended with PW1 agreeing to buy 10 lbs of heroin at RM16,000 per pound, the supply of which was to be negotiated by the first appellant. PW1 promised to return some time in mid-February with the money. Subsequently on 17 February 1981 PW1 came to Penang and was told by the same informer to meet him and the first appellant at Villa Roma coffee house, Sunrise towers, Penang. PW1 accordingly informed PW3 about his intended meeting the next day requesting PW3 and his police personnel to keep surveillance. The next day at about 11.00 a.m. PW1 drove to Sunrise towers where he was introduced by the informer to the second appellant and the third appellant. He noticed the first appellant was downstairs standing in front of the coffee house. PW1 confirmed his intention of purchasing 10 lbs heroin and showed the third appellant the RM100,000 in the briefcase which was in the boot of his car parked outside the building. The third appellant seemed to be satisfied and returned to the coffee house to join the second appellant and the informer. It was agreed that the supply of the heroin and the payment of the money was to be made from one hotel room to another the next day. However, the plan was aborted when PW1 received a telephone call from the informer that the venue was to be at Kuala Lumpur hotel at Butterworth. PW1 informed PW3 by phone of the change. The next morning on 20 February 1981 at