Gopal Sri Ram JCA:

Introduction

The appellants before us together with one Abdul Rahman bin Ab. Shatar were charged for trafficking in 4,829 grams of cannabis contrary to s. 39B(2) of the Dangerous Drugs Act 1952. The learned judge acquitted Abdul Rahman at the close of the prosecution case. There is no appeal by the Public Prosecutor against that order. The judge however called for the defence of the appellants. Each of them made a statement from the dock. Abdul Rahman then gave evidence for the defence as DW1. At the close of the whole case the learned judge found the case against the appellants proved. He convicted them and sentenced them to the mandatory death penalty. The appellants now appeal to us. We heard this appeal on 8 September 2004 and adjourned it for continued hearing yesterday. At the conclusion of arguments, we adjourned the appeal to today for our decision. Facts The facts here are fairly straightforward. The prosecution case, which is mainly based on the evidence of PW3, is that there was a sale of the drug in question by the appellants to PW3 who had acted throughout as agent provocateur. According to the story as told by PW3, on 18 October 1997, he proceeded to a stall in front of a sawmill at the Grik base camp. He met his informer there. The informer told him that there was a Malay who was trafficking in drugs and furnished PW3 with the background and identity of the person concerned. He was then introduced to a male Malay who called himself "Sham" who is Rohaisam bin Othman (the second appellant) before us. PW3 introduced himself as "Isa". Thereafter, according to PW3 negotiations were conducted between himself and the second appellant for the proposed sale of the drugs by the second appellant. It is also part of PW3's evidence that Mohd Johi bin Said (the first appellant) was present at one of the meetings that PW3 had with the second appellant concerning the sale of drugs. PW3 also testified that a meeting was arranged at Bukit Mertajam on

14 November 1997 at 7.30pm, between himself and the appellants. The police planned an ambush at the scene. PW3 arrived at the scene at about 8pm. About an hour later the first appellant and Abdul Rahman arrived in a motor car No. PCN 6527. The second appellant had arrived earlier. According to the prosecution evidence, Abdul Rahman alighted from the car and stood near it. Thereafter, the trap set by the police was sprung and all three suspects were arrested. The prosecution case is that the drugs in question were found and recovered from the front passenger seat of the motor car No PCN 6527. The appellants' case is quite different. According to both appellants, they were introduced to PW3 with a view to their being recruited as police informers. In their respective statements made from the dock, they denied that they had sold or agreed to sell any drugs to PW3. The first appellant denied that the drug in question had ever been in motor car No PCN 6527. His counsel put to PW5 (DSP Yusuh, the leader of the ambush party) during cross-examination that the drug had not been found in motor car No PCN 6527.

The defence case as put to prosecution witnesses implied therefore that the drug had been planted in motor car No PCN 6527. Further, DW1 gave evidence that he had taken a lift from the second appellant to the scene of the ambush. While travelling he did not see any bag in the front passenger seat, on the floorboard or anywhere else inside the car. On arrival at the scene, DW1 went to ease himself. After that there was a commotion. He heard someone say: "Letak barang dalam kereta PCN". (Put the thing in car PCN"). He was then blindfolded, handcuffed and severely assaulted. We may add that from the printed record it is fairly plain that DW1 was subjected to strenuous cross-examination which he withstood and emerged from the witness box with his credibility unscathed. The Learned Judge's Approach The learned judge therefore had two versions before him. First