Abdul Malek Ahmad JCA:

A police party had raided apartment No. 46-11-11 Green Lane Heights, Jalan Besi in Georgetown, Penang at about 6 pm on 30 June l990 after having to break the front wooden door down. The wooden door was behind a metal grilled door which was closed but not locked and the front window louvres were shut. The police had identified themselves when knocking on the front door but upon getting no response had kicked in open. They had, however, heard the sound of things being moved inside when they had earlier knocked. From a hole in the door as a result of the kick, they managed to open the door from inside. Inside, they found both the respondents, who were brothers, one in the living room and one in the kitchen, clad only in their underwear with white powder and orange colouring on the tips of their fingers and feet, in a state of shock.

In the apartment, the raiding party found two light green basins containing orange coloured powder in loose form in the kitchen and a yellow coloured basin containing orange coloured powder being heated on a gas stove at the rear balcony. After arresting the respondents, the police party made a search of the apartment. Prior to the search, the first respondent, now handcuffed, had led the police to the only toilet in the apartment where he pointed upwards with his mouth to the water tank. At the top of the tank was discovered a white and light orange coloured plastic bag inside which were four compressed blocks of a white substance each wrapped separately in plastic and brown paper.

Three packets and six small packets of suspected heroin were found in a pail in the third room and in a drawer of the altar in the living area respectively. All the contents of the exhibits recovered, the swabs taken of the hands and feet of the respondents, and the samples of powder gathered from the floors and from the underwear the respondents were wearing, showed traces of heroin which upon chemical analysis amounted to 1,689.68 grammes of heroin which formed the subject matter of the trafficking charge against them.

At the close of the case for the prosecution, the learned trial Judge amended the charge to one under s. 12(2) and (3) of the Dangerous Drugs Act 1952 (hereinafter 'the Act') punishable under s. 39A(2) of the Act .

The amended charge read as follows:

That you jointly on 30 June l990 at about 6 pm at apartment 46-11-11 Green Lane Heights, Jalan Besi, in the district of Georgetown, in the state of Penang, did have in your possession a dangerous drug, to wit, 1,689.68 grammes of heroin, to which Part IV of the Dangerous Drugs Act 1952 applies without being authorised to be in possession of such drug or deemed to be so authorised under the said Act or regulations made thereunder and you have thereby committed an offence under sub-ss. (2) and (3) of s. 12 and punishable under sub-s. (2) of s. 39A of the said Act .

Even this, in our view, is not quite correct as sub-s. (3) of s. 12 of the Act is a punishable section and not the commission section.

Both respondents pleaded guilty. The first respondent was sentenced to twelve years imprisonment and to twelve strokes while the second respondent, being a juvenile, to nine years imprisonment and to ten strokes. The jail terms were to run from the date of arrest.

As the learned trial Judge explained in his judgment:

The evidence of being in possession of the heroin found in the apartment in this case was overwhelming against the two accused persons so as to justify their being called to enter upon their defence. They were surprised by the police party and caught in their underwear, literally with their pants down and off. Swabs taken of their hands and feet showed the presence of heroin. The suspected drugs found in their immediate presence when surprised by the police party as well as those recovered from the toilet and other parts of the apartment showed the same to be heroin.

There was no one else in the apartment at the ti