Abdul Malik Ishak JCA:

Background

[1] Both the appellants were charged in furtherance of common intention for trafficking in dangerous drugs, to wit, 3,087.55 grammes (2,551.09 monoacetlymorphines) on 3 July 2001 at about 8:45 pm at house number 38, Jalan Keris 6, Taman Puteri Wangsa, Ulu Tiram, in the district of Johor Bahru, in the State of Johor Darul Ta'zim ("the said house") under s 39B(1)(a) of the Dangerous Drugs Act 1952 read with s 34 of the Penal Code and punishable under s 39B(2) of the same Act.

[2] The appellants claimed trial before the High Court. At the end of the prosecution's case, the learned trial judge called both the appellants to enter their defence.

[3] Both the appellants gave unsworn statements from the dock. At the end of the defence case, the learned trial judge found both the appellants guilty and convicted them. The learned trial judge sentenced both the appellants to death.

[4] Interesting points of law were raised before us and we shall endeavour to highlight them in this judgment.

The Prosecution's Case

[5] The case for the prosecution unfolded through the evidence of ASP Mohd Basri bin M Rafi ("SP6"), who, on 3 July 2001 at about 8:30 pm, led a party of police officers and raided the said house. Upon arrival, SP6 saw a Chinese lady later identified as Wong Mann Yim ("the 2nd appellant") standing at the lighted porch of the said house near to its front door.

[6] The automatic gate to the said house was locked. Without further ado, SP6 identified himself in a loud voice and asked the 2nd appellant to open the automatic gate to the said house. The 2nd appellant ignored the request and quickly ran inside the said house and closed the front door and also switched off the porch lights.

[7] SP6 together with two other police personnel, namely, Lance Corporal Sum Kok Wah and Corporal Roslan swung into action. They climbed the automatic gate in order to gain access to the said house. Once inside the compound of the said house, SP6 knocked hard at the front door several times and at the same time SP6 identified himself as a police officer. About a minute later, the front door of the said house was opened by the 2nd appellant. SP6 and members of the raiding party then entered the said house.

[8] The first person whom SP6 saw when he entered the said house was a male Chinese later identified as King Seng Hock ("the 1st appellant"), who was at that time seated on a sofa. SP6 proceeded to identify himself as a police officer and showed his authority card to both the appellants. SP6 then asked the following question to both the appellants:

"Ada apa-apa barang salah?" ("Is there any illegal goods?")

The 1st appellant answered:

"Ada pek hoon." ("There is heroin.")

[9] According to SP6, from his experience "Pek Hoon" referred to heroin.

[10] SP6 then administered the caution under s 37A(1)(b) of the Dangerous Drugs Act 1952 ("DDA 1952") to both the appellants which was translated into the Chinese language by Lance Corporal Sum Kok Wah. According to SP6, he relied on a card containing the caution under s 37A(1)(b) of the DDA 1952 when he administered the said caution to both the appellants.

[11] After the caution was translated into the Chinese language, SP6 saw both the appellants nodded their heads and kept quiet. According to SP6, he then saw the 1st appellant got up and proceeded to the kitchen portion and took the bunch of keys (P42) on the floor near the grinding machine and using one of the keys the 1st appellant opened the door to the second room.

[12] When the door to the second room was opened, SP6 together with Lance Corporal Sum Kok Wah, Inspector Basar bin Sapar, Corporal Hisham bin Abu and both the appellants entered the second room. It was in the second room that the 1st appellant showed with his right finger to SP6 a Hennessy XO plastic bag, exh P5B, located on the left side of the second room and the 1st appellant remarked that it contained "pek hoon".

[13] Without further ado, SP6 seized the Hennessy XO