The two accused were charged that on 21 September 1990, at about 9.30pm, in front of the Alor Janggus Police Station, they, with common intention, trafficked in 9,831g of cannabis, an offence under s 39B(l)(a) of the Dangerous Drugs Act 1952 ('the Act') read with s 34 of the Penal Code (FMS Cap 45) and punishable under s 39B(2) of the Act.

The unchallenged evidence of Insp Jamaluddin (PW7) was that on 21 September 1990, at about 8.45pm, he kept observation, with two police personnel inside a car, on a house, No 98, Kampong Nelayan, Kuala Perlis, Perlis ('the house'). He saw a car, a Proton Saga, PBR 9739 ('the car') parked in front of the house. At about 8.50pm two male persons came out of the house. One of them went to the car and took out something. Then the two persons went to the rear of the house. At about 9pm, the two persons came back to the front of the house. One of them carried a bag. The said bag was placed in the compound of the house. Then the two persons went back to the house and about 5–10 minutes later three male persons came out from the house. One of them picked up the bag and took it to the car and opened the front left door of the car and placed it inside the car. The man then went inside the car. Inspector Jamaluddin said he saw two persons enter the car. The third person stood in front of the car. As the car started to move, this third person (who is now deceased and whose name was Azali bin Mat Jam) gave a signal to Insp Jamaluddin.

The following facts are also not disputed. Inspector Jamaluddin contacted DSP (then ASP) Syed Ismail, PW6, who was stationed in a car with a police driver at the Petronas Petrol Station along Jalan Kuala Perlis as soon as he saw the car leave. DSP Syed Ismail in turn contacted Insp Ibrahim (PW4) at the Alor Janggus Police Station to set up a road block. All three cars proceeded in the direction of Alor Setar. The suspect car stopped at the road block which was placed in front of the Alor Janggus police station. The road block was manned by Insp Ibrahim bin Deraman (PW4) and his men. The first accused was the driver of the suspect car. On being requested for his identity card, he gave it to the police. The second accused was sitting in the front passenger seat. A bag containing five packages of dried leaves was found on the floor board in front of the front passenger seat. The bag and the five packages were seized by Insp Ibrahim.

It is not disputed that the bag contained cannabis and that the five packages contained dried plant material. The government chemist, PW3, who conducted tests on 100 random and representatives samples from the five packages, 20 samples from each of the five packages, concluded that the dried plant material was cannabis, a dangerous drug within the meaning of s 2 of the Act. The cannabis weighed 9,831g. It is not disputed that the bag and the five packages of plant material were in the proper custody and care of the investigating officer of the case, Insp Ramli bin Abu Samah, between the time they were handed over to him by Insp Ibrahim up to the time Insp Ramli handed them over to the chemist, PW3, and between the time they were returned to him by the chemist and the time they were produced in court.

The facts so far disclosed do not show common intention of both accused in respect of the offence. A bag containing five packages of proscribed cannabis was found in the car but it was not shown which of the two accused put the bag in the car. Bearing in mind R v Abbot 1 as it was applied in Shamsuddin bin Hassan & Anor v PP 2 , on the facts so far adduced, the prosecution has not made out a prima facie case against both the accused.

The prosecution, however, also relied on a statement made by a deceased person during the course of an investigation under s 112 of the Criminal Procedure Code (FMS Cap 6) involving the two accused to prove its case.

As was briefly mentioned earlier, the person who gave a signal to Insp Jamaluddin at the house,