Chong Siew Fai CJ (Sabah & Sarawak):

This is an appeal by the prosecution against the order of acquittal and discharge of the two respondents at the close of the case for the prosecution.

The two respondents together with another person were charged in the High Court at Taiping with trafficking in dangerous drugs under s. 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The charge worded in Bahasa Malaysia may be translated into English as follows:

That you jointly on 31 July 1991 at about 1.30a.m. in a house numbered 129, Jalan 17, Taman Kuning Sari, Taiping in the district of Larut and Matang in the state of Perak Darul Ridzuan did, on your own behalves, traffic in dangerous drug, to wit, 902 grammes of ganja in contravention of s. 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) and thereby committed an offence punishable under s. 39B(2) of the said Act read with s. 34 of the Penal Code.

After hearing the evidence of 13 prosecution witnesses and the submissions of Counsel, the learned trial Judge ordered the acquittal and discharge of the three accused without calling for their defence. Against the said order, the Public Prosecutor appeals but only in respect of the 1st and the 2nd accused (the 1st and 2nd respondents in this appeal).

The Prosecution's Case

The evidence adduced by the prosecution may be briefly summarised as follows.

Following a tip from an informer on 17 July 1991, PW8, ASP Badaruddin bin Hj. Zafari, officer-in-charge of the drug prevention unit, Taiping, directed PW9 Detective-Corporal Busra bin Abdul Kadir to investigate the authenticity of the information that a drug syndicate was operating in the district of Lenggong and Taiping in Perak. To facilitate the investigation, PW8 set up a rendezvous between PW9 and the informer (later identified as Cholar) on 18 July 1991 @ 3.15p.m. Both Cholar and PW9 then left for Lawin, Lenggong at 3.30p.m. on the same day where, according to PW9, he (PW9) was introduced to the 2nd respondent Ideris by Cholar with the words "kita satu line". When PW9 revealed his wish to purchase ganja, the 2nd respondent told him that he had no supply with him at that material time and that the cannabis was with his partner in Taiping. The 2nd respondent promised to introduce PW9 to his partner.

On 22 July 1991 @ 9.30p.m. PW9 was taken to a house No. 129, Jalan 17, Taman Kuning Sari, Taiping where he was introduced by the 2nd respondent to the 1st respondent, Mansor. PW9 further testified that on this occasion he also saw an unidentified Malay man who was not introduced to him. At this meeting PW9 managed to purchase one kati of ganja at the price of RM1,000 from the 1st respondent. PW9 also agreed to return to buy another two kilos of ganja at RM1,500 per kilo and the 1st respondent suggested the delivery to be on the night of 31 July 1991 in the same house.

Being informed of the new development, PW8 swung into action. About 15 minutes past midnight on 31 July 1991 PW8 and his men were already in position. They hid behind some bushes in front of the said house. Two kept vigilance at the back entrance of the house and another two were placed at the entrance of the road leading from Jalan Besar Taiping Changkat Jering to Taman Kuning Sari.

According to PW8, when they took their ambush position the house was lighted but empty, and the front portion of the house was also illuminated by a street lamp. PW8 said from his position he could see the house clearly and that at around 12.45a.m. he saw a Toyota Corolla car with registration plate No. BBD 7216 pulling up to the house compound. Two men alighted and entered the house. Five minutes later PW9, the 2nd respondent and Cholar arrived in a car which was parked in front of the house but outside the compound.

PW9 said when they arrived at the house, the 1st respondent and the 3rd accused Khasim were already inside. After 35-40 minutes of drinks and casual conversation, PW9 asked the 1st respondent about the two kilos