Chong Siew Fai CJ (Sabah & Sarawak):

On 30 January 1994, the appellant was convicted of trafficking in 639.3 grammes of cannabis, an offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (hereinafter referred to as 'the Act') and sentenced to death. The offence was alleged to have been committed on 20 July 1990 at about 5.40pm in a bus-shelter in Kampung Alor Pasir, Pasir Mas, Kelantan. The appellant appealed. On 26 July 1997, we allowed the appeal, quashed the conviction and set aside the death sentence. In place thereof, we entered a conviction under s. 6 of the Act and sentenced the appellant to a term of imprisonment of 12 years with effect from the date of his arrest and 10 strokes of whipping. We indicated that reasons for the reasons for the judgment would be given later, which we now do.

Case For Prosecution

Briefly, the case for the prosecution may be summarised as follows: On 20 July 1990 at about 5.40pm. PW5 ASP Anuwar bin Naemat led a police party, including PW6 Corporal Majinan Sani to a bus-shelter in Kampung Alor Pasir in a car. At the bus-shelter, PW5 saw PW2, Awang bin Teh, a fruit seller, and the appellant who was holding a blue and black bag (exh. 14). PW5 got down from the car and pretended to be interested in buying some pineapples. Upon his equiry, PW2 said each pineapple cost RM2. Thereupon PW5 immediately approached the appellant and asked him about the contents of the bag (exh. 14). When two of his men alighted from the car and joined him, PW5 seized and opened the bag and found therein, inter alia, three packages wrapped in newspaper, each package containing a slab of dried plantmaterial that had been split into two. Subsequently PW5 also found, inside the bag exh. P14, a brown waist pouch (exh. P20) containing, inter alia, the appellant's wallet, international passport, account-book and a tin of 'Code 10' hair-cream. The appellant was arrested and brought to the Rantau Panjang Police Station. PW5's evidence about the arrest was substantially corroborated by PW6 and PW2. PW1, Lim Ah Lee, the chemist, testified that, after analysis, the contents of the three packages were cannabis as defined in s. 2 of the Act , weighing 186.7 grammes, 218.8 grammes and 233.8 grammes of respectively totaling 639.3 grammes.

On the above evidence, the learned trial judge ruled that a prima facie case had been made out and called on the appellant to enter upon his defence. He was satisfied that the appellant was in custody or control of the said cannabis and therefore was deemed under s. 37(d) of the Act to have been in possession of the drug and to have known the nature thereof. Furthermore by reason of the weight of the cannabis, he held that s. 37(da)(vi) applied and the accused was deemed to be trafficking in the said drug.

Defence

The appellant gave sworn evidence.

In essence, his defence was that the bag (exh. P14) was not the one he carried. He claimed that on 20 July 1990 at about 3pm in his sister's house in Golok he bought RM30 worth of ganja for his own consumption from two friends. The ganja was wrapped in a package (as opposed to the three packages stated by PW5) which he put in a green bag (as opposed to the blue and black bag (exh. P14) described by PW5). The appellant claimed that when he was arrested, the bag seized from him was the green bag and not exh. P14. He, however, denied that he was a drug addict.

Judgment

The learned trial judge disbelieved the story of the appellant. He found that the defence had not raised any reasonable doubt on the prosecution's case, there being no reason why PW5 would frame the appellant by switching the bags since both of them did not previously know each other. The learned trial judge rationlised that instead of changing the bags, PW5 could have easily put the three packages of cannabis in the bag the appellant allegedly carried if PW5 had really wanted to plant the cannabis on the appellant. The learned trial judge considered the story of the appellan