JUDGMENTBY: EDGAR JOSEPH FCJ (DELIVERING THE GROUNDS OF JUDGMENT OF THE COURT)

EDGAR JOSEPH FCJ (DELIVERING THE GROUNDS OF JUDGMENT OF THE COURT) This appellant was convicted upon a charge that he did on 30 December 1987, at Km 31, Jalan Kampong Bukit Tanah, Bukit Jawa, in the district of Pasir Puteh, in the state of Kelantan, jointly, with one Fauzi bin Ab Rahim, traffick in a dangerous drug, to wit 36kg of cannabis, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and was sentenced to death, that being the mandatory sentence provided under s 39B(2).

The judge had, however, acquitted and discharged the accused Fauzi bin Ab Rahim at the close of the case for the prosecution and so should have, but did not, delete the word jointly from the charge when calling upon the appellant to enter upon his defence. This point was not taken by counsel for the appellant and therefore we say nothing more about it.

The petition of appeal, as amended to include additional grounds of appeal, had attacked the conviction on a number of grounds but, before us, counsel for the appellant elected to confine his contention to only ground 3 of the additional grounds, which alleged (with some amplification) that the trial judge was wrong in relying on the evidence of the chemist SP9, Mohan s/o Gangadharan, which evidence had created a doubt as to whether the substance he had analysed was cannabis within the meaning of s 2(1) of the Act, prior to its amendment on 4 September 1992 by Act A834, that is to say, the Dangerous Drugs (Amendment) Act 1992 or cannabis (Indian Hemp), a drug listed in Pt III of the First Schedule of the Act, though nowhere defined in the Act.

A scrutiny of the record provided shows that, in essence, all the chemist had said on the point at issue was that the result of his examination and analysis of the various quantities of plant material which constituted the subject matter of the charge aforesaid, showed that in each case it was Cannabis as defined in the Dangerous Drugs Act 1952. The aggregate net weight of the cannabis being 25,664.8g. The judges notes of evidence shows that there were repeated references by the chemist to the expression Cannabis as defined in the DDA 1952 with no mention made at any time of the definition section in the Act, of cannabis, to wit, s 2, which at the material time, provided as follows: "cannabis means any part of any plant of the genus Cannabis from which the resin has not been extracted, by whatever name it may be designated".

The glaring omission by the chemist to refer to s 2 of the Act could give rise to the inference that he did not have in mind the ingredients of cannabis as defined therein, and as explained in the Supreme Court case of PP v Alcontara [1993] 3 MLJ 568 at p 577.

In DPP v Tan Ah Guat [1947] MLJ 32 , arising out of a prosecution for unlawful possession of dutiable liquor under the Liquors Revenue Ordinance, an order had been made by the magistrate that the taxi in which the alleged dutiable liquor had been found, should be restored to the respondent who was the driver of the taxi. On appeal by the deputy prosecutor against that order, Brown J said, inter alia, this:

But what was fatal to the prosecution case was that the certificate

(even if it had been admissible) failed to prove that the alleged samsu

was intoxicating liquor under the definition contained in the

Ordinance. There are two ingredients of that definition:

(a) that it contained more than 2% alcohol by weight;

(b) that it is fit (or intended) for use as a beverage.

The first was proved. The second was not. And I would observe that it

is highly desirable (even though not strictly necessary) that the

wording of the definition should be followed in the certificate.

Accordingly, it was held that no offence was proved to have been committed.

The certificate referred to in Tan Ah Guat was a certificate under s 427 of the Singapor