A failure to produce a first information report does not automatically warrant an adverse inference against the prosecution unless it affects witness credibility.

Introduction

[1] The appellant is a Thai national. She was charged in the High Court at Alor Setar for trafficking in dangerous drugs. The charge was as follows:

"Bahawa kamu pada 9hb Disember 2011 jam lebih kurang 8.15 malam, di bahagian lorong Terminal Bas Shahab Perdana, di dalam daerah Kota Setar, dalam Negeri Kedah Darul Aman telah didapati mengedar dadah berbahaya iaitu cannabis sejumlah berat 16841 gram. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s 39B(2) Akta yang sama."

[2] The appellant was found guilty after a trial and sentenced to death on 29 October 2014 by the High Court. An appeal to the Court of Appeal was filed on the same day. The appeal came up for hearing on the 8 December 2015 at the Court of Appeal. After hearing arguments on behalf of the appellant and the respondent, it was unanimously decided that the appeal be dismissed. Our reasons for so deciding now follow.

The Prosecution's Case At The High Court

[3] The prosecution's case as revealed by the evidence at the trial can be stated as follows. On 9 December 2011, at about 7.00 pm, Inspector Samsualan bin Samsudin (SP2) received information of drug trafficking by a foreign national in the vicinity of the Shabab Perdana Bus Terminal in Alor Setar. Based on the said information, SP2 then led a raiding party to the said Bus terminal. Whilst carrying out observation at the Bus Terminal, at about 8.00 pm, SP2 noticed the appellant walking along lane 6 of the said Bus Terminal. She was carrying two bags in each hand (P29 and P30) and had a handbag (P31) slung over her right shoulder.

[4] SP2 and his party then proceeded to approach the appellant and detained her. SP2 had identified to the appellant that he and his party were police officers from the narcotics division. The appellant appeared to be "cemas dan resah" according to SP2 whereupon she immediately dropped the two bags P29 and P30 to the floor. SP2 found the said two bags to be locked and ordered the appellant to open the bags. At first the appellant refused but when instructed again to do so she produced a set of keys (P33A-E) from her handbag (P31) and proceeded to open the two bags with the keys.

[5] SP2 then examined the contents of the two bags. Inside bag P29, SP2 found 8 slabs of compressed dried leaves (P10A - P17A). Inside bag P30 he found 10 slabs of compressed dried leaves (P19A - P28A). SP2 suspected the slabs of compressed dried leaves to be cannabis. The appellant was arrested and the said exhibits were sent to Jabatan Kimia for analysis. Upon analysis by the chemist, Norleen binti Abdul Manaf (SP1), the dried leaves in the 18 slabs were confirmed to be cannabis as defined in s 2 of the Dangerous Drugs Act 1952 ("the Act").

[6] From the aforesaid evidence, the learned trial Judge found at the end of the prosecution's case that considering the fact that the appellant was carrying the bags which contained the cannabis and the fact that she also had the keys to the bags which she subsequently opened in the presence of SP2 and his police party, the only inference is that the appellant had custody and control of the cannabis as well as knowledge that the two bags contained the cannabis. In other words, the appellant had mens rea possession or conscious possession of the drugs. Applying s 2 of the Act, the learned Judge found that a prima facie case of trafficking had been made out and ordered the appellant to enter her defence.

The Defence Case

[7] The appellant gave evidence on oath. She testified that she worked as a cashier in a hotel in P