The court affirmed the principle that knowledge and possession of drugs can be inferred from a defendant's conduct and proximity to contraband during police action.

Abdul Malik Ishak JCA (delivering judgment of the court)

INTRODUCTION

[1]Victor Chidiebere Nzomiwu, a Nigerian (‘the first appellant’), Mokoape Lucky Thabo, a South African (‘the second appellant’), and Mrs Pansiri Oaphavarin, a Thai national (‘the third appellant’), were jointly charged for an offence of trafficking in dangerous drugs under s 39B(1)(a)Dangerous Drugs Act 1952s 39B(2)s 34Penal Code

Bahawa kamu secara bersama-sama pada 3 Mac 2009 jam lebih kurang 11.00 malam di alamat 706 Jalan Perdana 5/1, Ascadia Tower, Pandan Perdana, 55300 Ampang di dalam daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan dengan niat bersama telah mengedar dadah berbahaya sejumlah berat 1308.9 gram (1136.6 gram heroin dan 172.3 gram monoacetylmorphines) dan oleh demikian kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a)Akta Dadah Berbahaya 1952seksyen 39B(2)seksyen 34Kanun Keseksaan

[2]All the three appellants were convicted at the end of the trial and they were sentenced to death. Aggrieved, all the three appellants now appeal to this court.

THE SALIENT FACTS

[3]On 3 March 2009, Chief Inspector Tansil Mering (‘SP4’) received an information about a drug trafficking activity at an apartment bearing address as per the charge and he quickly assembled a team of police personnel which included Inspector Mohamad Rashidi bin Mat Din (‘SP5’), Detective Corporal Rajandran al/ Rangasamy (‘SP7’), Detective Corporal Rizal bin Zainal Abidin, Detective Corporal Rabiah bt Mohd Ali, Detective Lance Corporal Hawa Samsinar bt Ali and constable Khairul bin Mohd Ridhuan and briefed them about a raid to be conducted on that apartment. It was on the seventh floor. SP4 and the police party arrived at the apartment at about 11am on 3 March 2009 and he found the grille to the wooden door was unlocked while the wooden door was locked. SP4 knocked at the wooden door but no one opened it. SP7 then knocked at the wooden door and declared, ‘Municipality, mosquito, open the door’ (‘Bandaraya, mosquito, buka pintu’ — cross-examination of SP4 at p 55 of the appeal record at Jilid 1). At this juncture, the first appellant opened the wooden door and SP4 introduced himself as a police officer. Upon hearing this, the first appellant attempted to close the wooden door but to no avail. SP4 and his police party succeeded in pushing the wooden door and that door was forced open. On gaining entry into the said apartment, SP4 saw the first appellant run towards the balcony and jump down.

[4]SP4 also heard the first appellant shout to the second appellant in an unfamiliar language while the first appellant was running towards the balcony before jumping down. At that juncture, SP4 saw the second appellant in the living room with a towel wrapped around his waist and SP4 also saw the second appellant run towards the balcony and climb down from the balcony in order to escape.

[5]At the living room, SP4 also saw the third appellant was seated on the sofa (see p 34 of the appeal record at Jilid 1). According to SP4, the reaction of all the three appellants aroused his suspicion that there was something legally wrong in the said house (‘Apabila saya lihat reaksi kesemua Tertuduh, saya syaki ada sesuatu yang salah dari segi undang-undang berada di dalam rumah tersebut’ — p 34 of the appeal record at Jilid 1).

[6]SP4 then directed Detective Corporal Rizal bin Zainal and Detective Lance Corporal Hawa Samsinar bt Ali (‘two detectives’) to go to the ground floor of the said apartment and check the first appellant who had jumped from the