Wan Suleiman SCJ:

The appellant was charged with trafficking in 951 grammes of cannabis, an offence punishable under s. 39B(2) of the Dangerous Drugs Act 1952. He was found guilty and was accordingly sentenced to death.

The learned Counsel for the appellant's sole ground of appeal is that the learned trial Judge had applied the wrong quantum of burden in coming to his finding that the appellant had failed to rebut the presumption raised by the prosecution evidence, and in consequence the appellant was entitled to an acquittal.

The prosecution case was that PC Wahed bin Yusoff had on 21 August 1983 acting on information received stopped the appellant who was carrying a bag in which were articles of clothing and a prayer mat, and a quantity of green leaves, or to be exact, leaves wrapped around little sticks. He obtained the help of a passer-by Hassan bin Idris to hold the accused whilst he fetched his handcuffs and his motorcycle from his house nearby, taking with him the bag P7 which he left at his doorstep within sight whilst he was inside the house. He subsequently handcuffed the appellant and then took him to the Police Station where he handed the exhibits C to the OCS., PW4.

PW4 counted the 540 sticks which weighed 1250 grammes. These sticks were later handed to the Chemist who weighed the leaves minus the sticks and found the leaves to weigh 950 grammes, the quantity mentioned in the trial.

A cautioned statement was recorded from the appellant which the learned trial Judge held to be inadmissible because it was taken in standard Malay by the recording officer whilst the appellant's mother tongue was Pakistani though he also spoke Thai and Pattani Malay.

As the learned Judge correctly noted the case largely depended on the testimony of the Chemist (PW1), the PC (PW3) and the by-stander (PW8), all of whom had impressed him as honest and truthful witnesses whose evidence he had no reason to doubt. His Lordship dealt with apparent discrepancies and certain other relevant points brought out in cross-examination of prosecution witnesses with commendable thoroughness.

He then held that the prosecution evidence had raised the presumption under s. 37(d) and (da) (vi) of the Act.

Then he proceeded to consider the testimony of the appellant. Appellant said that he had gone to Jerteh, Trengganu from his hometown Narathiwat in Thailand on 1 July 1983 in an attempt to collect debts owing to his father from one Roni @ Ghani bin Yusoff. When Roni was unable to pay, appellant then asked if he could stay and work in Jerteh; but was told that there were no jobs available. He then returned to Thailand. On 5 August 1983 he met Roni at Yala in Thailand and was told that there was a job available at Jerteh, but appellant could not go because he had work to do in Yala.

On 21 August 1983 however he crossed over to Malaysia without any travel documents carrying his bag P7 in which admittedly there were the prayer mat and the articles of clothing later found but not the ganja. On the Malaysian side he was arrested by a person who identified himself as a police officer, and who after examining the contents of his bag told him he was being arrested for not having travel documents. He was then taken to a house and leaving him outside the arresting officer entered the house taking along the bag P7. Three men present outside the house urged him to run away but he refused to do so saying that he had committed no offence except for entering the country with no travel documents. The arresting officer subsequently emerged, handcuffed him and took him to the Pengkalan Kubor Police Station. He was not shown any cannabis there. He was then taken to Tumpat Police Station and it was there that he was shown his bag which now also contained some dried leaves whereupon he denied that the dried leaves were his. He claimed to be a cloth merchant, doing business in Thailand.

The police located Roni who together with his wife were called as prosecution witnes