JUDGMENTBY: MOHAMED DZAIDDIN FCJ (DELIVERING THE JUDGMENT OF THE COURT)

MOHAMED DZAIDDIN FCJ (DELIVERING THE JUDGMENT OF THE COURT) The appellant was charged in the High Court, Kangar, for trafficking in a dangerous drug, to wit, cannabis, weighing 1,302.9g at about 12 noon at 30km Jalan Kangar, Padang Besar, Perlis, on 2 March 1989 under s 39B(1)(a) and punishable under s 39B(2) of the Dangerous Drugs Act 1952 (the Act). He was convicted and sentenced to death.

Before us, the sole ground of appeal that was argued was that the learned judge erred in law in not holding that the evidence of the chemist, PW1, was insufficient, inadequate, doubtful and ambiguous to prove that the drug was cannabis as defined in the Act. It was the submission of Encik Gurbachan that the chemist, in his evidence, failed to testify that the impugned drug was cannabis as defined under s 2 of the Act, contrary to the decision of this court in Shukri bin Mohamad v PP [1995] 3 MLJ 229 . Hence, counsel submitted that following Shukri, the conviction of the appellant under s 39B(1)(a) of the Act should be quashed and the sentence of death be set aside, and substituted with a conviction under s 12(2) of the Act.

For the purpose of this appeal, we do not propose to deliberate on the full facts of the case, except to recap the evidence of the chemist, PW1, with respect to his examination and analysis of the newspaper packages containing 1,302.9g of cannabis. In his evidence (p 3 of the appeal record), PW1 testified as follows:

On 10 April 1989, I received four envelopes marked E, E1, E2, E3 from

Insp Roslan bin Ali (identified). I gave acknowledgement receipt (p/i

P2).

With regard to the four envelopes, I examined the content of the

envelopes and I found in envelope E two newspaper packages. I weighed

one of the packages and I removed the wrappers and weighed it. From

there, I obtained the net weight of the content. I found the content to

consist of dry plant material with characteristic features similar to

that of cannabis.

I then took representative sample from the dry plant material and did

the following tests:

(i) Microscopic examination

Under the said examination, I detected the presence of cannabis

resin and also microscopic features of plant material similar to

that of cannabis.

(ii) Duquenois Levin test

It was positive, indicating that plant material is cannabis.

(iii) TLC

This confirmed that plant material is cannabis.

I did the same thing for the other package in envelope E.

I found the net weight of one of the packages to be 198.5g, and the net

weight of plant material of the other package to be 184.7g. Hence, I

found envelope E contained a total of 383.2g of cannabis.

Similarly, I did the same thing in respect of plant material in

envelope E1. I found envelope E1 to contain two newspaper packages. One

of the packages had a net weight 244.5g of cannabis. The other package

had 250.4g cannabis. This gave a total of 494.9g cannabis.

I did the same test and weighing in respect of the packages in envelope

E2. I found a newspaper package containing 222.4g cannabis.

I did the same test and weighing in respect of envelope E3. I found a

newspaper package containing 202.4g cannabis.

By cannabis, I mean cannabis as defined under DDA 1952. Resin had not been extracted. (Emphasis added).

The question which arises for our decision is whether the above testimony of the chemist, PW1, to the effect that by cannabis he meant cannabis as defined under DDA 1952 and that resin had not been extracted; without specifying the crucial words s 2, has given rise to the inference that he did not have in mind the ingredients of cannabis as defined in the said s 2 of the Act.

In Shukri, the appellant appealed to the Federal Court on the ground that the trial judge was wrong in relying on the