Abdul Malik Ishak JCA (delivering judgment of the court):

THE CHARGES

The appellant (‘the accused’) faced two drug charges in the High Court of Shah Alam under the Dangerous Drugs Act 1952 (Act 234) (‘the Act’) and those two drug charges are as follows:

First charge

For trafficking in dangerous drugs under s 39B(1)(a) of the Act, to wit, 33.2g of heroin and monoacetylmorphines (5.8g of heroin and 27.4g of monoacetylmorphines) on 2 April 1999 at about 10.15am at the car park of Flat ‘C’, Taman Petaling Utama, Jalan Klang Lama, in the district of Petaling Jaya, in the State of Selangor Darul Ehsan (‘car park of Flat ‘C”) and punishable under s 39B(2) of the Act.

Second charge

For trafficking in dangerous drugs under s 39B(1)(a) of the Act, to wit, 514.1g of heroin and monoacetylmorphines (73.6g of heroin and 440.5g of monoacetylmorphines) on 2 April 1999 at about 10.15am at the car park of Flat ‘C’, Taman Petaling Utama, Jalan Klang Lama, in the district of Petaling Jaya, in the State of Selangor Darul Ehsan (‘car park of Flat ‘C”) and punishable under s 39B(2) of the Act.

THE OUTCOME OF THE TRIAL AT THE HIGH COURT

At the close of the case for the prosecution, the High Court judge called upon the accused to enter his defence on both the original charges. The accused elected to give his evidence at the dock. The accused also called two other witnesses — his mother (DW1) and his sister (DW2).

And at the end of the case for the defence, the High Court judge convicted the accused not on the original two charges but rather on only one charge, which was a reduced charge, for possession of 4.875g of heroin and monoacetylmorphines under s 12(2) of the Act and punishable under s 39A(1)(d) of the Act. The High Court judge then sentenced the accused to five years imprisonment with effect from the date of conviction (29 March 2005) and nine strokes of whipping.

Aggrieved by the decision of the High Court judge, the accused filed an appeal, to this court, against the conviction and sentence. Essentially, the appeal of the accused was against the whole decision of the High Court judge vide Criminal Appeal No B-05–39 of 2005.

The public prosecutor also filed a counter appeal against the decision of the High Court judge for amending both the original charges from trafficking under s 39B(1)(a) of the Act and punishable under s 39B(2) of the Act to a single charge of possession under s 12(2) of the Act and punishable under s 39A(1)(d) of the Act at the end of the case for the defence and passed sentence accordingly as alluded to earlier. Just like the accused, the public prosecutor also filed the appeal against the whole decision of the High Court judge vide Criminal Appeal No B-05–40 of 2005.

THE FACTS OF THE CASE

On 2 April 1999 at 7.40am, L/Kpl 71653 Chandran a/l V Subramaniam (PW7) of the Criminal Intelligence Unit, Police Headquarters, Petaling Jaya together with L/Kpl Appasamy proceeded by motorcar to the car park of Flat ‘C’. They had gone there based purely on information received regarding the theft of a stolen vehicle.

Upon arrival, PW7 saw a blue Honda Civic motor bearing registration No WFV 2724 parked at the car park of Flat ‘C’. That must have been the stolen vehicle, the subject matter of the information. PW7, who arrived in a motorcar with L/Kpl Appasamy, proceeded to park his motorcar at a comfortable distance away and there they dutifully observed the blue Honda Civic. According to PW7, at that time, there was no one in the blue Honda Civic. From where they were located, they had an unobstructed view of the blue Honda Civic.

The prosecution led evidence to show that No WFV 2724 that was on the blue Honda Civic was in fact a false number plate. I shall allude to this later.

Both PW7 and L/Kpl Appasamy kept vigil and focussed their entire attention on the blue Honda Civic. One hour and forty minutes later their vigil paid off. They saw the accused walking alone towards the blue Honda Civic. And at point marked ‘X’ in photograph ‘B’ of p 608 in ap