The validity of a confession is contingent upon the proper administration of caution, failure of which may undermine a conviction.

[1] The accused was charged with two offences of trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act') and punishable under s 39B(2) of the same Act.

[2] Particulars of the two charges were as follows:

Case No: SDK-45A-1/7-2014('1st Charge')

"That you, on 15 November 2013 at about 3.00 pm, at the back side of Syarikat Victory Auto Parts, Hing Lee 1 Street, Mile 3, Sandakan, in the state of Sabah, did on your own behalf, trafficked in a dangerous drugs to wit 124.04 gram of Methamphetamine and that you have thereby committed an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) and punishable under s 39B(2) of the same Act".

Case No: SDK-45A-2/8-2014('2nd Charge')

That you, on 15 November 2013 at about 3.45 pm at Lorong E60, Jambatan E, Rumah Murah Sim-Sim, Sandakan, in the state of Sabah, did on your own behalf, trafficked in a dangerous drugs to wit 215.6 gram of Methamphetamine and that you have thereby committed an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) and punishable under s 39B(2) of the same Act.".

[3] The accused was acquitted and discharged of the second charge by the learned trial judge at the end of the prosecution's case. Aggrieved, the Public Prosecutor appealed to this Court against the acquittal. However, the learned trial judge ordered the accused to enter upon his defence on the first charge.

[4] At the end of the trial, the learned trial judge convicted the accused and sentenced him to suffer the mandatory death penalty on the first charge. Aggrieved by the conviction and sentence, the accused likewise appealed to this Court.

[5] We heard both the appeals together on 25 September 2017. At the outset, the learned Deputy Public Prosecutor ('the learned Deputy') withdrew their appeal against the acquittal. We struck-out the prosecution's appeal and we affirmed the acquittal of the accused on the second charge.

[6] After hearing the parties and after perusing the Appeal Records, we allowed the accused's appeal in respect of the first charge. We set aside the conviction and sentence imposed by the learned trial judge. We now give our grounds of doing so.

The Prosecution's Case

[7] The prosecution's case may be summarized as follows:

(a) Acting on an information received, on 15th day of November 2013 at about 1.30 pm, Inspector Wan Mohd Ismail Wan Aziz (PW7) assembled a team of ten (10) policemen and conducted a briefing regarding a drug trafficking activity behind the premises of Syarikat Victory Auto Part, Mile 3, Sandakan;

(b) During the briefing, PW7 divided his team into four teams with specific instruction given to each team. They proceeded to the said location and after waiting for about 25 minutes a black Kancil with registration No. SS9200J ('the said Kancil') came and was parked behind Syarikat Victory Auto Parts. There was only one man inside the car, later identified as the accused. The police team then rushed to the car and apprehended the accused;

(c) Upon inspection the police found one plastic bag, cream in colour, placed in the front passenger seat of the said Kancil. PW7 then conducted further checks on the cream plastic bag (P12(1)) and found 2 black plastic packet inside it. Inside the 2 plastic packets, PW7 found four transparent plastic packets containing crystalized substance suspected to be Methamphetamine;

(d) The accused was then arrested. Further investigation was carried out which led the police to the Accused's house where seven (7) transparent pla