Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] The appellant before us was convicted of an offence of trafficking contrary to s. 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and sentenced to death. The brief facts relevant to this appeal are as follows.

[3] PW5 (ASP Foo Chee Lip) acting on information he received laid an ambush at the Sungai Dua toll plaza on 28 December 1999 at about 9.30pm. A short while later he noticed a Proton Wira motorcar No. WGT 8794 approaching him. When the car arrived at the toll plaza, PW5 and his team of police officers approached it and identified themselves. The appellant was in the driver's seat. On seeing the police the appellant put up both his hands. PW5 noticed that the appellant was shivering. The appellant was then arrested. PW5 entered the car and observed a strong smell of ganja. A search of the motorcar's trunk revealed 3 gunny sacks of a substance which upon subsequent chemical analysis found to be 48666 grams of ganja, a drug proscribed by the Act. Later the appellant was charged at the High Court of Penang. At the close of the prosecution's case, his defence was called upon and at the close of the whole case he was found guilty as charged.

[4] The main, if not the only, ground of complaint before us is that the learned trial judge failed to judicially evaluate or appreciate the defence evidence. Now, the case for the defence was this. The appellant had taken the car in question and gone to Alor Setar and then on to Gurun. His purpose was apparently to locate some used clothes of which he claimed to be a trader. During his journey he was accompanied by a man called Badrol Hisham. At Gurun both the appellant and Badrol Hisham stopped at a rest stop to break their fast. According to the appellant he handed the car keys to Badrol Hisham. Later at a car park not far from where they had had broken their fast, they were joined by two friends of Badrol Hisham. There were two other vehicles as well. One was a Perodua Kancil and the other a Honda Civic. All three vehicles then proceeded towards Sungai Dua. Badrol Hisham travelled in the Perodua Kancil.

[5] It is common ground that during PW5's cross-examination it was never put to him by counsel for defence in the court below that Badrol Hisham had played a role in the case. This omission was considered at some length by the learned trial judge in her judgment. Here is the first passage:

The court disbelieved the defence story about Badrol Hisham and Badrol Hisham's two friends and about the accused giving the car key to Badrol Hisham and about following the cars of Badrol Hisham and his two friends because they were never put to the prosecution's witnesses. This story is also not stated anywhere in the accused's second cautioned statement, D29.

The defence had only cross-examined SP5 on the following:

(1) the detention of a Kancil prior to the detention of the Proton Wira driven by the accused;

(2) that there were two Malay men in the Kancil;

(3) that the 2 Malay men were arrested in connection with drugs in the Kancil;

(4) that the two Malay men were arrested and brought to the car park of the Toll Plaza;

(5) that after the arrest of the two Malay men but before the arrest of the accused there was another car, namely, a Honda Civic which was detained;

(6) that the Honda Civic was detained at 9.43pm on 28th December 1999;

(7) that a Malay man in the Honda Civic was also arrested;

(8) that the name of the Malay man in the Honda Civic was Abdul Aziz;

(9) that the Proton Wira driven by the accused was detained at 9.44 pm on 28th December 1999; and

(10) that when the accused was brought to the car park of the Toll Plaza the other Malay men who had been arrested earlier were already brought there.

Although the learned defence counsel had informed the court that he needed to put further questions/suggestions to SP5 that the other persons who were arrested were involved in putting the cannabis in the Proton Wira which