GOPAL SRI RAM, JCA

This is the Judgment of the Court.

The appellant (accused in the court below) was convicted of the offence of trafficking contrary to section 39B (2)Dangerous Drugs Act 1952

According to the prosecution, pursuant to an arrangement made by PW8 an informer, PW5 (Detective Corporal Mahmood bin Noor) met with the appellant on 19 December 1999 for the purpose of negotiating the sale and purchase of cannabis. According to PW5, it was agreed that the accused would make available 5 kg of cannabis at the agreed price of RM900 per kg. It was also agreed that the transaction would be completed on the 21 December 1999. The evidence led by the prosecution shows that at about 5.30 pm on the date in question, PW5 was at a petrol station at Bukit Jong, Kuala Terengganu. Shortly later the appellant arrived. He was holding a blue bag (Exh. P11). From it he took out a pink coloured bag (Exh. P10). PW5 was able to smell cannabis. He then asked the appellant to replace Exh P10 in P11. The appellant did so. Exh P11 was placed by the appellant on the cement floor near PW5. PW5 then gave the agreed signal to the police party who were by prior arrangement waiting in ambush nearby. The appellant was arrested. The contents of Exh P10 was sent to the chemist. A chemical analysis of the contents of Exh P10 established the same to be 3224.47 grams of cannabis. Acting on this evidence, the learned trial judge called upon the appellant to make his defence. The appellant's story was that the informer PW8 had owed him money and that the meeting on 21 December 1999 was for the purpose of his collecting his debt from PW8. The learned judge did not accept the defence version. He accordingly convicted the accused and imposed upon him death penalty.

Before us learned counsel for the appellant raised two principal arguments in support of the appeal. His first submission is that the acts of the appellant did not constitute a sale of drug in question to PW5. Counsel correctly submitted that it was the prosecution's case that there had been a sale of the cannabis in question to PW5. For there to be a sale there must as a matter of law, argues learned counsel, be actual delivery of the proscribed drug. He referred us to the decision of the Federal Court in Public Prosecutor v Sa'ari Jusoh

In our judgment whether there is actual delivery is a question of fact and of degree. It depends on the particular facts of an individual case. Varying fact patterns may be envisaged. An accused (as vendor) may physically hand the drug to the buyer (usually an agent provocateur). Or he may place it near the buyer. Or he may make it readily available for the buyer to take control of it as happened in Sa'ari Jusoh. Or he may place it in a vehicle or a room and hand the keys to the same to the buyer. In all these cases there is actual delivery. There may be cases where delivery is constituted by more than one act. Take this very case. The acts of the appellant in bringing the drug to the petrol station and placing it near PW5 when taken cumulatively constitute actual delivery.

The second point taken by learned counsel for the appellant is that the judge erred in his handling of the facts when evaluating the defence story. It is clear from the record that the defence case was diametrically opposed to the prosecution's case. The issue which fell for the learned judge to decide was whether PW5 was telling the truth as to what was agreed, that is to say, whether the accused's version was reasonably probable. After a careful analysis of the totality of the evidence the learned judge found the defence version to lack credibility. He also held that it did not raise a reasonable doubt in his mind. He found the accused's explanation to be one of recent invention because of the way in which the defence case was put to the witnesses for the prosecution. In our judgment the judge was certainly entitled to do that. On the facts of this case he was justified in so doing. There is clear au