JUDGMENT

Edgar Joseph Jr. SCJ:

The appellant was convicted in the High Court at Kuching for trafficking in a dangerous drug, to wit, cannabis weighing 793.85 grammes, in contravention of s. 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") and sentenced to death. It was alleged that the offence was committed on the afternoon of 10 May 1988 in front of a coffee shop called Chop Poh Hin, No. 40, Jalan Wong Tsap En, Limbang, in the State of Sarawak.

We do not propose to discuss the facts at any great length because it was proved up to the hilt, and indeed freely admitted by the appellant, that at the time of his arrest he was standing outside the coffee shop, with a black bag slung over his shoulder from which there was recovered - amongst other personal items - a bulk of dried leaves believed to be cannabis wrapped in Chinese newspaper and his Malaysian Passport.

The dried leaves were promptly sent to the Government Chemist Mr. Tan Ching Chee (PW 5) for examination and analysis and he concluded that it was cannabis within the meaning of s. 2 of the Act , in weight 793.85 grammes.

The only defence put forward at the trial before Mr. Justice Dennis Ong Jiew Fook (sitting alone) was that the cannabis was planted in the bag. That defence was, however, rejected by the trial Judge who, in the event, convicted the appellant and sentenced him to death.

Before us, the conviction was attacked on two grounds: namely, that the way in which the trial Judge dealt with the defence was unsatisfactory and alternatively, that the testimony of the Chemist did not prove beyond any reasonable doubt that the bulk of dried leaves was cannabis within the meaning of s. 2 of the Act .

It is sufficient if we said that so far as the first of these grounds is concerned, no exception could be taken to the careful and thorough manner in which the trial Judge dealt with it.

The appellant was, however, on firmer ground so far as his second ground was concerned.

Now, the Chemist had, as we have said, testified that he had examined and analysed the bulk of dried leaves and found it to be 793.85 gms. of cannabis.

Explaining how he arrived at this conclusion he said this:

I conduct a visual examination of the content of "E1" and then I took samples of the content of dried plant matter. I examined the samples using chemical methods and also conducted microscopic examination. I took samples from various positions of each layer of the dried plant matter and I examined and analysed such samples individually.

It will be seen that he made no mention of the results of his physical examination; for example, he did not say that the plant material was all of the same type and physical features as that of cannabis, nor did he say what were the results of his microscopic examination. Did he notice any resin in the plant material? If so, in what quantity was it present? Nor did he tell the Court as to what were the tests he conducted using chemical methods; for example, did he resort to the Dequenois Levine test and/or the Thin Layer Chromatography test? If so, what were the results of those tests?

But, more importantly, under re-examination by the Deputy Public Prosecutor the Chemist said this:

I did not obtain the weight of each sample taken but the total weight of samples taken for analysis is more than 10% of the net weight of 793.85 gms.

And, it was only in answer to the Court, at the end of his re-examination that he said:

The dried plant matter is cannabis as defined in s. 2 of the DDA 1952 . I examined it in accordance with the definition in the DDA 1952.

But, the crucial point was whether the grounds upon which he arrived at the conclusion that the plant material was cannabis as defined in s. 2 of the Act could withstand the test of strict curial scrutiny.

It is obvious that from the extracts of the testimony of the Chemist, the following plain facts emerge:

First, the total weight of the plant material said to be cannabis was 793.85 grammes.

Sec