Shaik Daud Ismail JCA (majority):

[1] By a majority decision we had allowed this appeal, quashed the conviction and set aside the sentence of death. We indicated then that we would give our reasons in writing and this we now do.

[2] On 27 October 1993, the Kuala Lumpur High Court convicted the appellant for an offence of trafficking in 134.M grams of heroin, under s 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act). He was accordingly sentenced to death. This was the second time the appellant was before this Court. Appellant was previously charged with the same offence before another judge of the Kuala Lumpur High Court on 11 August 1991. At the close of the case for the defence on 14 March 1991, appellant was acquitted and discharged. On appeal by the Public Prosecutor, the Supreme Court, on 4 January 1993, allowed the appeal and ordered a retrial before another judge. At the outset of this appeal, Mr Bhagwan Singh, assigned counsel for the appellant submitted that, as the appellant had to undergo two trials on the same charge, with the same set of witnesses and being acquitted at one and convicted at the other, is in itself an indication of a grave doubt having been created. The learned Deputy Public Prosecutor (DPP) submitted that the issue before the Supreme Court was on whether the burden on the defence was on a reasonable doubt or on a balance of probability. We hold that, whatever may be the reasons for the order of the re-trial that by itself does not indicate any doubt.

[3] The facts leading to the arrest of the appellant are that on 12 May 1989, as a result of information received, Inspector Lai Joo Wah (SP8) led a police party consisting of DPC 109669 Cheng Siang Kong (SP3), D/Constable Woon Tan Seng and D/Constable Mohamad Shahar to lay an ambush at Jalan Kepong, Jinjang North. It would appear that the informer was also with the police party and it was he who pointed out the appellant as the target. SP3 testified that at about 5pm that day while he and Woon were by the side of Jalan Kepong, Shahar joined them and told them that the target had come out. At the same time SP3 said he saw the appellant alone some 100 metres away coming out of a lane towards Jalan Kepong and he had with him a dark maroon bag under his armpit. Later SP3 said it was a red bag but corrected himself and said it was a dark maroon bag. SP3 said that the appellant walked to the edge of Jalan Kepong stopped and boarded a mini bus going in the direction of Kuala Lumpur. The bus then proceeded towards where SP3 and Woon were and when it arrived near them, SP3 stopped the bus and the entire police party boarded the bus. In the bus SP3 said he saw the appellant seated alone with the bag he was earlier carrying placed on an empty seat next to him. SP3 testified that he and two other police personnel sat behind the appellant. How SP3 and two other police personnel could sit behind appellant was not explained as all seats on buses, we believe, are for two persons. The bus proceeded all the way to Jalan Tun Perak and when it stopped at a traffic light in front of the Ban Hin Lee Bank, SP3 said appellant alighted carrying the bag with him, followed by him and the other two police personnel. The appellant walked towards Ban Hin Lee Bank and when he arrived in front of the bank, Woon stopped him and identified himself as the police. SP3 said that at that time appellant dropped the bag and started to struggle to free himself. SP3 picked up the bag. Then SP8, who had been following the bus in a car arrived and all three police personnel with the appellant were taken in the car to the Police Contingent Headquarters Kuala Lumpur. Investigations revealed that the bag carried by the appellant contained heroin weighing 134.84 grams as confirmed by the government Chemist Kee Sue Sing (SP7).

[4] The appellant in his defence gave evidence on oath. He testified that the day in question was his son's birthday and while he was at home his employer a Chinese conv