JUDGMENTBY: MOHAMED AZMI SCJ

(delivering the Judgment of the Court): The appellant was convicted under section 39B(1)(a) Dangerous Drugs Act 1952 at the High Court Ipoh of trafficking in 1,400 rolls of cannabis weighing 649.5 grammes and sentenced to death under section 39B(2). The offence was alleged to have been committed on November 15, 1983 at about 8.40 p.m. at the front of an unnumbered house at Aulong Lama, Aulong, Taiping. The prosecution case of trafficking by the appellant was based almost entirely on the evidence of Inspector Khoo Guan Leong (PW2) and DPC Lian Kia Hock (PW4) of the anti-narcotic branch, Ipoh, who on instruction by their superior went to Taiping on November 15 as undercover agents, to trap the appellant at an unnumbered house, with another police party in ambush position. In fact it was part of the prosecution case that a day earlier on November 14, DPC Lian had gone with an informer to appellants house, where the informer had introduced the appellant to him as "Pak Chik". During that meeting DPC Lian had made arrangement with the appellant to supply him with ganja the next day. In the result DPC Lian had in fact initiated the trap on November 14 by negotiating with the appellant for the purchase of the drugs after receiving information from the informer, although the only material part taken by the informer was to introduce DPC Lian to the appellant. The next day on November 15, Inspector Khoo was assigned to complete the drug transaction, together with DPC Lian. On the evidence before him, the learned trial judge accepted the testimony of Inspector Khoo and DPC Lian that during the trap on the 15th, the appellant did supply them with two packages of ganja (cannabis). During the transaction, the appellant left on his bicycle and after about five minutes returned with the two packages, and later he also helped Inspector Khoo to unwrap one of them. On a prearranged signal, the other police party in ambush came forward and arrested the appellant. The police took possession of the two packages together with the bicycle and the bicycle key. On analysis by the government chemist, Mr. Ng Cheng Chai (PW6), it was confirmed that the two packages contained 1,400 rolls of cannabis weighing a total nett weight of 649.5 grammes. At the close of case for the prosecution, the learned judge found a prima facie case had been made out against the appellant. The defence was based on the allegation that the whole episode on the 15th was a frame-up by the police. According to the appellant (DW1) and his wife (DW2), the two packages which contained ganja were placed on the carrier of his bicycle by the informer who had come to his house with DPC Lian at about 7.30 p.m., saying that they would come back to collect the packages at about 8.30 p.m. Later DPC Lian returned not with the informer, but with Inspector Khoo who took possession of the packages and gave instruction for his arrest. He denied knowledge of the contents of the packages and claimed that he had nothing to do with the ganja. The learned trial judge considered the entire evidence of the defence and found it had not raised a reasonable doubt on any vital part of the prosecution case. Accordingly, he found the appellant guilty as charged.

Before us the conviction is being attacked on five main grounds. The argument on the first three grounds evolves around the provision of adverse inference under section 114(g) Evidence Act 1950 on (a) the unknown informer; (b) the typist of the Chemistry Department; and (c) the absence of accuracy certificate in respect of the weighing machine used by the government chemist. It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document