Abdull Hamid Embong JCA:

[1] The appellant, Megat Halim, was convicted and sentenced by the High Court Penang for an offence of drugs trafficking of 797.59 grammes of cannabis, under s 39B(1)(a) Dangerous Drugs Act 1952 (DDA).

[2] We dismissed his appeal and now give our reasons.

[3] The facts show that on 17 March 2000 at 11.25pm, Cif Inspector Rajaram (SP9) and seven of his men from the Narcotics Division, upon information received, raided the appellant's house at Block 111-B-4-3, Hilir Pemancar, Gelugor, Penang.

[4] When SP9 knocked on the main door the appellant opened it. In the house was SP7, the appellant's wife and their two young children, sleeping in the first bedroom.

[5] SP9 introduced himself as a police officer and asked the appellant if he kept any illegal items in the house, the exact question being "Ada kamu simpan apa-apa barang salah dalam rumah?"

[6] The appellant then brought SP9 to the second room and produced one black cigarette box (JPS brand) from underneath a bag found on the floor of that room.

[7] Upon inspection of the JPS box it was found to contain dried leaves suspected to be cannabis.

[8] SP9 immediately cautioned the appellant pursuant to s 37A(1)(b) DDA - the caution being so worded:-

adalah menjadi kewajipan saya memberi amaran kepada kamu bahawa kamu tidak diwajibkan berkata apa-apa atau menjawab apa-apa soalan, tetapi apa-apa jua yang kamu nyatakan samada sebagai menjawab kepada sesuatu soalan atau tidak boleh diberi sebagai keterangan.

[9] That caution was recorded by SP9 on a piece of paper The contents of that piece of paper was admitted by the learned trial judge as an exh P12 after conducting a trial within a trial.

[10] Following that caution, SP9 asked the appellant the following questions to which the appellant answered:-

Soalan: Boleh kamu beritahu saya apa yang ada dalam bekas warna hitam jenama JPS ini?

Jawapan: Ganja

Soalan: Siapa punya?

Jawapan: Saya punya.

[11] SP9 then asked the appellant this question "Ada kamu simpan lagi dadah ganja", to which the appellant responded "Ada sikit".

[12] The appellant then brought SP9 to a wardrobe in that second bedroom and pointed to SP9 to a brown bag kept in a wardrobe.

[13] When SP9 retrieved the bag he asked the appellant these questions:-

Soalan: Boleh kamu beritahu saya apa yang ada dalam beg warna brown ini?

Jawapan: Ganja

Soalan: Berapa banyak?

Jawapan: 1/2 kilo.

[14] SP9 then inspected the contents of the bag and found it to contain a slab of dried leaves, later confirmed to be cannabis, wrapped in transparent plastic, a plastic packet containing smaller plastic packets, and a knife.

[15] SP9 then inspected the room further and found within the folds of a pair of trousers, two white plastic bags both containing dried cannabis.

[16] Arguments on this appeal centered around three issues which are now separately discussed.

[17] The first issue was whether the appellant's conduct in reply to the queries made by SP9, before the administering of the caution, was admissible.

[18] It was submitted by learned counsel that the circumstances under which those questions were asked and the manner in which they were posed showed that the appellant was actually under arrest.

[19] And since no caution was given in relation to those questions, the answers given by the appellant were thus inadmissible under s 37A DDA.

[20] As regards the allegation that the appellant was already arrested at that point, learned Counsel relied on PP v. Rosyatimah bte Neza & Anor, [1989] 2 CLJ (Rep) 364, a High Court case which held that:-

a person is under arrest already if he is in a state of being watched or guarded to prevent his escape, or from circumstances it can be implied that his personal liberty has been restrained.

[21] The evidence however did not show us that any arrest had been effected on the appellant at that point. There was no evidence of force or physical restrain on the appellant. There was no question by the appellant put to SP9 on this issue throughout his testimony.