Zawawi Salleh JCA (delivering judgment of the court):

INTRODUCTION

[1]This appeal is directed against the judgment of the High Court of Penang dated 10 February 2011. Vide the impugned judgment, the High Court convicted the appellant for an offence of drug trafficking under s 39B(1)(a)Dangerous Drugs Act 1952

THE CHARGE

[2]The charge reads as follows:

Bahawa kamu pada 14 Mac 2008, jam lebih kurang 10.00 malam, di Restoran Nasi Kandar Pelita, Juru Autocity, Bukit Tengah, di dalam Daerah Seberang Tengah di dalam Negeri Pulau Pinang, telah memperedarkan dadah berbahaya jenis cannabis seberat 4420 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(a)Akta Dadah Berbahaya 1952s 39B(2)

[3]This appeal raises questions of considerable importance concerning the admissibility of chemist report under s 399Criminal Procedure Codes 2DDA

[4]It is necessary, before we embark upon the task of examining the merits or otherwise of the appeal, to state the facts of the case.

FACTS OF THE CASEThe prosecution’s version

[5]On 14 March 2008, at about 8.15pm, at Restoran Nasi Kandar Pelita, Juru, Penang, Sarjan Mejar Busra bin Abdul Kadir (‘PW4’) was introduced to the appellant by his informer. PW4 then introduced himself as ‘Along’. The appellant was nicknamed ‘Abang’.

[6]PW4 negotiated with the appellant for the purchase of proscribed drugs. The appellant offered 5kg of cannabis at the price of RM2,650 per kg. PW4 finally agreed to the price after some bargaining.

[7]Before the appellant left the restaurant to get the drugs, PW4 asked the appellant to then deliver the drugs to Insp Saifulazre bin Ghazali (‘PW5’) and to collect the money from PW4, which the appellant agreed.

[8]PW5 met up with the appellant outside the restaurant. He led the appellant to a Proton Waja bearing registration number WML 4578 which was parked nearby. He informed the appellant that he would take delivery in the car. The appellant agreed with that plan.

[9]PW5 waited in the car. At about 10.00pm, PW4 saw a Proton Wira Aeroback approaching and stopped in front of his car. The appellant was the driver while another man (later identified as Ahmad Tayyib) was sitting at the front passenger seat.

[10]Both the appellant and Ahmad Tayyib exited the car. Ahmad Tayyid went to sit at the driver’s seat while the appellant opened the back passenger door of that car and retrieved a sling bag (‘P17’). The appellant clutched the bag and walked towards PW5’s car. He opened the front passenger seat of PW5’s car and placed the bag on the floor mat of the passenger’s side of the vehicle. PW5 asked the appellant: ‘how many?’ in which the appellant answered: ‘5’.

[11]PW5 unzipped the bag and found five slabs of compressed cannabis. PW5 then informed the appellant that the money is to be collected from ‘Along’ at the restaurant. The appellant then returned to the restaurant.

[12]After having received confirmation from PW5 that the drugs were delivered, PW4 gave a pre-arranged signal, that is by scratching his head. Thereupon, ASP Mohd Salleh bin Abbas (‘PW2’), rushed towards the appellant and arrested him. Ahmad Tayyib was also arrested by the police ambush party.

[13]PW2 then led the appellant to PW5’s car. PW5 showed PW2 the bag which was on the floor mat, passed it to PW2 and left the scene. PW2 opened the bag and found five slabs of compressed cannabis, wrapped in transparent plastics. The appellant, Ahmad Tayyib, together with the seized items, were all brought to IPD Seberang Perai Tengah.

[14]The seized items were sent to Puan Rosni bt Hamid (deceased) for chemical analysis and via chemist report (P22), they were confirmed to be cannabis, a dangerous drug, having a net weight of 4,420g.

The defence’s version

[15]The appellant gave evidence on oath. The appellant protested his innocence. The appellant admitted that he was with Ahmad Tayyib on the day in question. He accompanied Ahmad Tayyib to the restaurant as the latter wanted to meet his friends.

[16]The appellant said that while Ahm