Gopal Sri Ram JCA:

[1] There are two appeals before us. Both relate to the same subject matter They arise out of the conviction of the appellant before us (the second accused in the court below) on a charge, amended by the court, under s 39A(2) of the Dangerous Drugs Act 1952 ("the Act").

[2] The Public Prosecutor has appealed, complaining that the conviction on the reduced charge under s 39A(2) was an error on the part of the court below. The second accused has appealed to us on the ground that he ought not to have been convicted of any offence whatsoever To better understand these appeals regard must be had to the facts. We will now narrate them.

[3] On the morning of 12 August 1997 Chief Inspector Fisol bin Salleh (PW4) received information that a transaction relating to dangerous drugs would be taking place later that same day at the Kentucky Fried Chicken outlet at Jalan Sulaiman, Kajang. PW4 then briefed a team of police officers. Later they all proceeded to the scene and laid an ambush. This was at about 2.45pm that day.

[4] The police divided themselves into three teams. They were all in plain clothes. One of them took position inside the outlet. PW4 was in charge of this team. Another police officer, PW3, together with a second team took their position inside the car in which they had arrived at the scene. The third team placed itself in the vicinity of the outlet. A short while later a motorcycle arrived. It was ridden by the first accused in the court below. He is now dead. He died in prison after his conviction.

[5] The first accused entered the outlet. A few minutes later he went out and was observed by the police to be making a telephone call on his hand-phone. A short while later a car arrived at the scene. It was a white Honda and bore Registration No WAG 6341. The car in question stopped in front of an optometrist's shop. The second accused was driving the car The first accused then walked to the car He was seen speaking to the second accused. The first accused then went to the rear of the car and was observed by PW3 to remove something from the boot of the car PW3 was quite certain in his evidence that the boot was open at the time. He saw the first accused removing a bag from it. The first accused then re-entered the outlet. He was then accosted and placed under arrest by PW4 and his team. The bag he was carrying was seized. It was found to contain two shirts, a newspaper and 20 packets of a pinkish substance which on later chemical analysis was found to be 299.51gm of heroin and 105.58gm of monoacetylmorphine. At about the same time that the first accused was placed under arrest, the second accused was also apprehended and the car seized. Investigation revealed that the second accused was the registered owner of the car Both accused were later charged for trafficking in the aforesaid drug contrary to s 39B of the Act.

[6] Based on the primary facts narrated above, the learned trial judge at the close of the prosecution case held that a charge of trafficking had not been made out. He accordingly amended the charge and convicted both accused of an offence contrary to s 39A(2) of the Act. It is against this decision that the appeals to which we referred to in the opening paragraphs of this judgment have been preferred to us.

[8] Accordingly we invited learned deputy to present his arguments in support of the Public Prosecutor's appeal. Encik Stanley Augustin, the learned deputy, argued that the judge had fallen into error in decidin