Suriyadi Halim Omar J:

In brief the prosecution's case is that on receipt of information PW5 and a police party went to Air Keroh Toll Plaza at about 3.30am. There they stopped a white Proton Wira bearing registration No. JDQ 7643 driven by the accused who was alone. He was requested to drive the car to the side and after alighting, produced a packet of cigarettes carrying the trade name of Dunhill, from which were retrieved 12 rolls of cigarettes and a roll of nipah leave which contained suspected ganja. The accused thereafter was asked to open the boot and in the spare tyre compartment was found a plastic bag, later confirmed to contain cannabis, as defined under the Dangerous Drugs Act 1952 (Act 234). At this stage the accused was supposed to have said, "itu ganja" and "bagilah saya peluang". The admissibility of these remarks were objected to by the accused on the basis that no caution was read out eventhough he was already under arrest. The prosecution subsequently charged him for trafficking 2.7 kilogram of cannabis.

The prosecution called six witnesses of whom five were formal ones with the exception of PW5 who was the raiding officer. The witnesses comprised PW4 who is the brother of the accused and who loaned that car to him, a police photographer who photographed the car and drugs, PW1 an officer from the Chemist Department who confirmed the seized items as dangerous drugs defined under the Dangerous Drugs Act 1952, PW8 the investigating officer who kept the drugs and PW7 a storekeeper who kept and maintained the records, as well as watching the movement of the drugs. The last was PW5, about the only relevant witness who suffered some intensive cross-examination by the accused's counsel.

Certain legal points cropped up during the hearing namely, whether:

1. by equating cannabis with Indian Hemp no offence was committed;

2. the statement made by the accused "itu ganja" after the plastic bag was discovered at the boot of car was admissible;

3. his follow-up remark, requesting a second chance on its own, was admissible;

4. he was already under arrest eventhough not physically touched or even told so;

5. the case of the accused was prejudiced when the packet of Dunhill with the 12 rolls of cigarettes were tendered as exhibits; and

6. what the standard of proof at the end of the prosecution's stage was ie, whether on a prima facie basis or beyond reasonable doubt.

Whether Equating Cannabis With Indian Hemp Has Made The Charge Defective

The charge reads:

Bahawa kamu pada 10.1.97 jam lebih kurang jam 3.30 pagi di Plaza Tol Ayer Keroh Durian Tunggal, di dalam Daerah Alor Gajah, di dalam Negeri Melaka, telah mengedar dadah berbahaya iaitu 2624.0 gram cannabis dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (Akta 234) Semakan 1980) dan boleh di hukum di bawah Seksyen 39B(2) Akta yang sama .

Perusing the charge it is crystal clear that the accused is being charged for trafficking 2624.0 gram of cannabis which according to the prosecution is a dangerous drug under the Dangerous Drugs Act 1952 (Act 234) . As to the definition of dangerous drug, s. 2 of the Act defines it as "any drug or substance which is for the time being comprised in the First Schedule", with cannabis defined as "any part of any plant of the genus Cannabis from which there is found to be present resin irrespective of its quantity, and by whatever name the plant may be designated." Reading through the First Schedule one is immediately made aware that there are five parts. Part I and Part II both have the drug of cannabis in them. Historically Part III also had cannabis in it though particularised as "Cannabis (Indian Hemp) and Cannabis resin (Resin of Indian Hemp)". With effect from 12 April 1996 Part III of the First Schedule was amended by the Dangerous Drug (Amendment of First Schedule) Order 1996 by the Minister of Health, acting under s. 45A(c) of the Dangerous Drugs Act 1952 (Act 234) whereby the above "C