JUDGMENT OF THE COURT

1. The appellant, a Nigerian national was charged for an offence of trafficking 686.3 grams of heroin. She was convicted of an offence under section 39B of the Dangerous Drugs Act 1952 ("the Act") and sentenced to the mandatory death sentence. She appealed. We heard her appeal on September 8, 2004 and dismissed it. Our reasons now follow.

2. The appellant and another person boarded a taxi at Haadyai in Thailand. They were headed for Penang. There were two other passengers on board. When the taxi arrived at the Malaysian Immigration and Customs Check Point at Bukit Kayu Hitam all passengers alighted. Their passports were examined. There was nothing suspicious about them. At that point, PW 4, a Customs Officer asked the appellant to remove her slippers. Obviously his suspicions were aroused when he found them fairly heavy. the slippers were probed with a needle and traces of a white powdery substance were found. The slippers were then split open and from them were recovered a total of 6 packets of a white powdery substance. The appellant was searched. 5 more packets of a white powdery substance were found around her waist. the appellant and her companion were arrested. Subsequent chemical examination and analysis revealed that the 11 packets contained heroin weighing 686.3 grams. The appellant and her companion were charged. At the ensuing trial the latter was acquitted.

However, the learned trial judge Hishamuddin J, in a carefully considered judgment convicted the appellant and passed sentence of death.

3. Before us the conviction was attacked on four main grounds. First, the charge as amended at the close of the prosecution's case was defective. Second, although the amended charge was read to 2. the appellant, there was non-compliance with the second limb of section 159 and section 162 of the Criminal Procedure Code when read together. Third, the judge was wrong in excluding the appellant's cautioned statement on the application of counsel for the co-accused and that the appellant had thereby been prejudiced. Fourth, the learned judge had infringed the rule against double presumptions.

4. Taking the first ground, it is important to recall that the appellant was initially charged with another person. Accordingly, the charge carried in it the allegation that the two accused had acted in furtherance of a common intention under section 34 of the Penal Code. Once the co-accused was acquitted at the close of the prosecution's case, the allegation of common intention fell to the ground. The charge had to be amended to reflect the fact that the appellant had solely trafficked in the drug in question. It was. But the wording in the charge was not so perfectly amended as to rid itself of all references to the element of the appellant having acted with another person. That in our view does not render the charge bad. For, it is well settled law that section 34 of the Penal Code does not create a substantive offence but is merely a rule of evidence to infer joint responsibility for a criminal act performed by a plurality of persons - Chota bin Abdul Razak v Public Prosecutor [1991] 3 MLJ 77. In Teh Thiam Huat v Public Prosecutor [1996] 3 SLR 631, the same complaint was raised on appeal. Karthigesu JA dealt with it as follows:

"We should, however, mention that an issue was raised that as the capital charge of trafficking was a common intention charged and the learned judge having acquitted the other conspirator, Tay Bee Hoon, the conviction of the appellant without amending the charge was irregular. True, the learned judge did not amend the charge; he found that the appellant alone was in possession of the 40 sachets of heroin and that he failed to make good that he was in possession of the 40 sachets for his and Tay Bee Hoon's consumption. Suffice it to say that section 34 of the Penal Code does not create a substantive offence; it lays down only a rule of evidence to infer joint responsibility (per Thean J (as he th