EDGAR JOSEPH JR SCJ

(DELIVERING THE GROUNDS OF JUDGMENT OF THE COURT)

This appellant and his wife, Ma Kelthom bte Idris, were jointly charged and tried in the High Court at Kota Bharu upon a charge that they did on their own behalves on the afternoon of 1 February 1986, at an unnumbered house at Jalan Masjid, Kampong Melayu, Gua Musang, in the state of Kelantan, traffic in dangerous drugs, to wit, 592.6g of cannabis, and had thereof committed an offence in contravention of s 39B(l)(a) of the Dangerous Drugs Act 1952 (‘the Act’).

At the conclusion of the trial, the wife was acquitted and discharged but the appellant was convicted and sentenced to death and against that conviction he had appealed.

The case against the appellant and his wife was this:

On 2 January 1986, as a result of a tip-off, alleging drug trafficking at an unnumbered dwelling house at Jalan Masjid, Gua Musang (‘the house’), at about 1pm, a police party which comprised Insp Mat Yusoff Akop (PW4), Sgt Abu Bakar bin Abdullah, DPC Masdan Kahat (PW2), DPC Mohd Hashim bin Mohd Zin (PW8) and PC Azman bin Ithin departed from Gua Musang police station on three motor cycles for the house.

On arrival at the house, Insp Mat Yusoff saw a male Malay standing alone clad only in a loin cloth (‘kain basahan’) on a platform in front of it. That male Malay was the appellant.

Insp Mat Yusoff then approached the appellant, identified himself and disclosed the object of his visit. He then instructed PC Azman to keep watch at the front portion of the house and Sgt Abu Bakar at the rear.

Upon entering the house, with DPC Masdan Kahat and DPC Mohd Hashim, Insp Mat Yusoff noticed a male Malay later identified as Mohammad bin Mohd Amin, sitting in the lounge near a wall smoking ‘rokok daun’. He also noticed four or five children having their meal in the kitchen. All in the house were then required to and did assemble in the lounge.

Insp Mat Yusoff then conducted a search of the house starting from the lounge but found nothing incriminating.

In the course of that search, (which was conducted in the presence of the appellant), he had inspected an almeirah, a radio speaker, a radio cassette player and another almeirah (marked J, K, L and M, respectively, in the sketch plan) to no useful purpose.

But then, Insp Mat Yusoff came to another almeirah (marked I in the sketch plan) which was locked. So he asked for the key from the appellant, who said that it was with his wife. The appellant then called out to his wife who was then outside the house drying clothes. As a result, the wife went up the house and hurriedly went into the kitchen where she climbed the lower shelf of the ‘para’ (a rack normally used for keeping cooking utensils and related items). She then proceeded to open a wooden box which lay on the upper shelf and tried to take out from it a yellow plastic bag. At this point, DPC Mohd Hashim (who was present throughout the search) also climbed the lower shelf and prevented her from taking out the plastic bag by holding her right hand and instructing her to put the bag back in the box, which she did. DPC Mohd Hashim then announced the discovery to Insp Mat Yusoff by saying: ‘Barang ini dah jumpa’. Without further ado, Insp Mat Yusoff shouted to PC Azman who was then outside the house, to arrest the appellant who had taken to his heels as soon as he had heard DPC's announcement of the discovery.

DPC Mohd Hashim then picked up the plastic bag from the box and handed it to Insp Mat Yusoff. Similarly, DPC Mohd Hashim also brought down the wooden box.

In the lounge, in the presence of the wife, Insp Mat Yusoff first opened the plastic bag and found in it dried leaves suspected to be cannabis. On opening the box, he found in it three newspaper packages all of which also contained dried leaves suspected to be cannabis and also some old and unused carpenter's tools. However, the box contained no key or bunch of keys.

Insp Mat Yusoff then summoned a police vehicle and a woman police constable from the po