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JUDGMENT
Mohd Hishamudin Yunus JCA:
The Charge Against The Appellant
[1] The appellant was tried before the Johor Bahru High Court for trafficking in 785 grams of monoacetylmorphines, an offence punishable under
The Decision Of The High Court
[2] The appellant was convicted of the charge and sentenced accordingly (the mandatory death sentence). He now appeals to this Court.
Decision Of This Court
[3] We heard this appeal on 26 July 2012. Having heard submissions and examined the Appeal Record, we have allowed the appeal. The conviction and sentence was set aside.
Our grounds
[4] We now give our grounds.
(a) The Prosecution Case
[5] The main witness is a police officer, ASP Leong Ah Kow (PW2). Acting on information received, he led a police team to the scene of the alleged offence. He divided the police team into three groups. There, at the scene, they took up ambush positions. They communicated with one another using walkie-talkies. At about 11.40am, a member of the ambush team, one Insp Khalid Mat, reported that the targets had left in two cars, a Perodua Kelisa and a Proton Wira. PW2 gave instructions to another member of the team, one Insp Bashar bin Satar (PW7) to block the cars from exiting. PW7, who had taken up position with his men in his car, asked his driver, Det Ahmad Daud, to block the exit. The two cars were successfully blocked. PW2's team then came from behind and stopped behind the Proton Wira car.
[6] PW2 said he and his men rushed to the Proton Wira car. Its registration number was JET 9981. There was only the driver (subsequently identified as the appellant) in the car. PW2 identified himself and asked the appellant to come out of the car.
[7] PW2 conducted a search in respect of the Proton Wira car. At the foot well of the front passenger seat he found a canvas bag with the brand name 'Power Pac'. The bag had two compartments inside it. In the first compartment there was a black plastic bag. This plastic bag contained 10 newspaper packages. In each of the packages PW2 found a transparent plastic wrapper containing a substance that he suspected to be drugs. In the second compartment PW2 found five newspaper packages. Each package contained a transparent plastic wrapper containing a substance suspected to be drugs. In the glove compartment of the car, PW2 recovered a plastic packet containing a substance suspected to be drugs wrapped in newspapers. The substances found in these 16 packages are the subject matter of the charge.
[8] The prosecution third witness, one Tong Gian Kiang (PW3), gave evidence that he rented out the Proton Wira car to the appellant. He said the appellant came to rent the car with a woman by the name of Chong Mei Fong.
(b) The Appellant's Case
[9] It is the appellant's defence that although he rented the Proton Wira car, in actual fact it was for the use of Chong Mei Fong, who wanted to go back to her hometown in Bahau. The appellant said in evidence that, between the period that he rented the car (on 22 June) until the date of his arrest six days later (on 28 June), he had driven the car only on two occasions, that is, on 22 June and on 28 June. The appellant asserted that he did not have exclusive use of the Proton Wira car since Chong Mei Fong also had used the same. It is the defence contention that Chong Mei Fong could have concealed the drugs in the canvas bag and then put the bag in the car. It is further contended by the appellant that there was also a possibility that Chong Mei Fong could have put the drugs in the glove compartment without his knowledge.
(c) The Appellant's First Submission
[10] Before us, learned counsel for the appellant, Encik Hisyam Teh Poh Teik, firstly, submitted that the learned trial judge erred in law when she accep
