Chong Siew Fai CJ (Sabah & Sarawak):

At the conclusion of the hearing before us, and after a short deliberation, Edgar Joseph Jr FCJ and Shaik Daud, JCA allowed the appeal, quashed the conviction and set aside the sentence of death. I differed from them with regret. We indicated that reasons for our different conclusions would be given. I now give mine.

I do not propose to repeat the history and the facts of this case, which have already been clearly rehearsed in the judgment of Shaik Daud, JCA.

For convenience, I shall call the appellant "the accused".

Grounds Of Appeal

Altogether there were eight grounds of appeal as follows:

(A) The learned trial judge erred in:

(a) convicting the accused under s. 39B of the Dangerous Drugs Act 1952 (the Act);

(b) convicting the accused since there was no clear, direct evidence showing that he had knowledge, custody and control of the drugs;

(c) failing to consider that the existence of a 3rd party, one Abdul Rahman bin Noh alias Ah Kiong, who was also arrested on a charge of drug trafficking, had created a doubt in this case;

(d) failing to consider Mohamad Radhi bin Yaakob v. Pendakwa Raya [1991] 3 MLJ 169 SC;

(e) failing to consider that based on the accused's information a 3rd party, one Abdul Rahman bin Noh alias Ah Kiong, the real trafficker, was arrested by the police;

(f) accepting the identification of the accused by prosecution witnesses from a distance of 100 metres in a busy town; and

(g) believing the evidence adduced by the prosecution that six persons got into a Proton Saga car when returning to the office of Cawangan Anti Dadah.

(B) The conviction was against the weight of evidence.

However, arguments on behalf of the accused were not advanced specifically on the grounds enumerated above. Nevertheless they may be grouped as follows:

(i) The accused's possession of exh. P4, the bag containing the heroin;

(ii) The existence of Abdul Rahman bin Noh alias Ah Kiong;

(iii) The place of arrest of the accused; and

(iv) The non-application of the directions enunciated in Mohamad Radhi bin Yaakob v. Pendakwa Raya [1991] 3 MLJ 169 SC; , by the learned trial judge. (i) The Accused's Possession Of Exh. P4, The Bag Containing Heroin

Learned counsel for the accused submitted that the accused had no knowledge of the content of the bag. The defence of the accused was that one Abdul Rahman bin Noh alias Ah Kiong, his employer, "framed" him in that the employer boarded the bus together with him, and gave him the said bag just before both of them alighted from the bus. However, the prosecution witnesses PW3 Detective Constable Chang Sing Kong who followed the accused and boarded the bus, and PW8 Inspector Lai Joo Wah who followed the bus in a car, denied this. They said the accused boarded the bus alone, carrying a bag.

The learned trial judge, after considering the evidence of the whole case, found that the accused was in custody and control of the bag and had failed to rebut the presumptions of possession and knowledge under s. 37(d) of the Act . Going through the evidence, I was inclined to agree with the learned trial judge. The following evidence which supported his finding ought not, in my view, be overlooked. Both PW3 and PW8 testified that on 12 May 1989 at about 5pm, when they, at a distance of 100 metres, saw the accused turning into Jalan Kepong until he boarded the bus from Kepong to Kuala Lumpur, he was alone, carrying the bag (exh. P4) under his armpit.

Admittedly there were some discrepancies in the description of the colour of the bag: PW3 at first said that it was red and later said that it was maroon red; PW8 described it as of dark coloured while the accused, in his defence, said that the bag he was carrying was brown in colour. But PW3, who boarded the bus following the accused and trailed the latter throughout the journey, positively identified the said bag (exh. P4) as the one carried by the accused when he first saw him, as the same one the acc