Balia Yusof JCA

(delivering judgment of the court):

[1]The appellant filed an appeal against his conviction and sentence on a charge of trafficking in 1965g of methamphetamine, an offence under s39B(1)(a)s 39B(2)Dangerous Drugs Act 1952

[2]We allowed his appeal and we now give our reasons.

[3]Briefly, the fact of the case goes as follows:

On 22.8.2010 at about 4.15 pm, PW2 together with a team of officers had carried out surveillance on a Volvo car parked at the basement parking at the IKEA in Damansara. Soon, the appellant was seen walking towards the car and opened the front driver’s side of the car door with a remote control key. The appellant was seen opening the door and bending over. He was then seen opening the boot of the car and took out a paper bag. After closing the boot, he was seen leaving the car and immediately PW2 pounded on him. The appellant was still clutching the paper bag. PW2 found the paper bag to contain a shoe box containing two transparent plastic packets suspected to be containing drugs. The appellant was arrested and the exhibits were handed over to the Investigating Officer (PW4). PW5, the Government Chemist certified that the suspected drugs seized from the appellant to be 1965 grams of methamphetamine.

[4]Before us, learned counsel for the appellant, in the person of Encik Hisyam Teh Poh Teik submitted that the learned trial judge had committed an error in failing to consider the prosecution’s case in its entirety to find a prima facie case against the appellant. That being the main issue in this appeal.

[5]In finding that the appellant had possession of the impugned drugs, the learned trial judge had found that he was caught red handed. The paper bag was not hidden and that his actions of opening the car door, bending over and subsequently opening the boot taking out the paper bag without any hesitation gave rise to an inference that he knew about the drugs in the bag. The trial judge also found ‘his actions were smooth and without any hesitation’. Invoking the s 37(da)

[6]Encik Hisyam submitted that in so finding, the learned trial judge had failed to consider the following factors, namely:

(a)the Volvo car did not belong to the appellant. The owner of the car, one Gan Yau Wen was arrested in the same vicinity on the same day of the incident as he was fleeing from the place;

(b)a person by the name of Cheok Kok Wah (CKW) and a female were also arrested in the same vicinity at the time of the incident;

(c)CKW was detained in Simpang Renggam under the Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985

(d)there is a nexus between CKW, the Volvo car and the paper bag containing the drugs;

(e)The appellant upon his arrest did not even struggle or made any attempt to flee or to even drop the bag; and

(f)The non-calling of the owner of the car had left a gap in the prosecution’s case. The evidence of the car owner who was known and was also arrested at the same time of the incident could at least have explained about the paper bag in the boot and whether the appellant had anything to do or any connection with the same. It could also have explained the lingering doubt as to whether CKW had any connection with the paper bag containing the drugs found in the boot of the Volvo car.

[7]The learned trial judge had dismissed all these issues as irrelevant. We disagree with the learned trial judge. These issues about the owner of the car and the person by the name of CKW were raised by the appellant during the prosecution’s case itself, namely, about the arrest of these two persons at the same vicinity on the same day of the incident.

[8]It was the appellant’s defence that on the day in question, he had met up with this person by the name of CKW at Starbucks, Bangunan IKEA as he wanted to get a job in CKW’s workshop. After having discussed about his employment with CKW and when he was about to leave, CKW requested the appellant to go to the Volvo which was parked at the basement car park to fetch a bag which was in