Conviction for drug trafficking quashed as prosecution failed to establish exclusive possession; reliance on non-circumstantial evidence rendered conviction inadequate.

[1] The appellant was convicted and sentenced to death on a charge of trafficking in 143,915 grammes of cannabis. The charge reads:

"Bahawa kamu pada 22 Oktober 2004, lebih kurang 3.00 pagi, di perairan Selat Klang Selatan di kedudukan LAT 02 57. 15'N, LONG 101 18. 5'E, jarak 0. 2 batu nautika dari Pelabuhan Barat dan 0. 28 batu nautika dari Pulau Che Mat Zin, Pandamaran, di dalam daerah Klang, di dalam Negeri Selangor Darul Ehsan, telah didapati memperedarkan dadah berbahaya iaitu 143,915 gram cannabis dan oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39B(2) Akta yang sama".

On appeal, we allowed the appeal, quashed the conviction and set aside the sentence. We now give our reasons for doing so.

[2] For originality, we set out herein below the facts of the prosecution's case as they are narrated by the trial judge as found in his grounds of judgment. The facts read:

On the 22 October 2004, at about 2.30am ASP Khairuddin bin Jamal (SP3) was on patrol duty in the Malaysian waters off Port Kiang, Selangor when he noted on the radar screen on his patrol craft, a boat heading towards Port Klang without any light emanating therefrom. SP3 kept on tracking the said boat and when it was about 10 meters from the said boat, he had identified himself as the Malaysian Marine Police and had given it an order to stop. The said boat stopped and SP3 then directed Chief Inspector Mohd Rudzuan bin Ahmad (SP4) and his officers to board the said boat for an inspection. Having boarded the said boat SP4 and his officers went into the wheelhouse [the 'rumah kemudi] of the boat and saw there was a man manning the wheel of the boat and at the same time, he said that he saw three men were sleeping therein. Those three men had to be awoken from their slumber. The man at the wheel of the boat and the three men were ordered to go to the deck of the boat while the raiding party did an inspection on the boat. After a while, the police party found something suspicious inside the cargo hatch of the boat. SP3 was duly alerted about this fact and upon inspection it was found that there were 8 gunny sacks had contained packages of slabs of dried leaves suspected to be cannabis. The suspected drugs were seized and a few documents were also seized from the man who was seen having helmed the boat earlier. That man was the OKT in this case, whereas the other three men were charged under the immigration law for being in Malaysian territory without any valid travel documents. The three men had since pleaded guilty and they had served their time in jail for those immigration offences".

[3] Based on the above facts, the learned trial judge ordered the appellant to enter his defence.

The Defence

[4] The learned trial judge in his grounds of judgment set out that the appellant's defence in the following style.

"Essentially, the defence put forth by the OKT could be described as one of denial of any knowledge of the drugs inside the eight gunny sacks which were found inside the cargo hatch of the boat that he was seen captaining, an act that he had also denied in the course of his evidence. It is abundantly clear that the bulk of the evidence of the OKT had been focused on what had allegedly happened at Batu Bara in Sumatra, Indonesia immediately before the boat set sail to Klang in Malaysia. In essence, the OKT had testified that he was requested by one man by the name of Ahmed Tengkis to transport, for him to Klang in Malaysia, a carge of lndomie and together with two Achinese men. According to him, the boat was not his but that it had belonged to one of Ahmad Tengkis's men. According to him further, the boat needed some repair before it could set sail to Klang. He said that he was paid a fee for his effort whereby he was to deliver the instant mee Indomie to one by