JUDGMENTBY: WAN SULEIMAN SCJ

(delivering the judgment of the court): In this appeal we should bear in mind that the first appellant represented by Encik Karpal Singh is really the second accused Illian s/o Endin and the second appellant Yu Kiat Ho represented by Mr. Naughton Christie is the first accused. To save ourselves from confusion, we shall hereinafter refer to the first appellant as Illian and the second appellant as Yu.

The appellants had been charged with jointly trafficking in dangerous drugs, the charge being as follows:

"That you on the 19th day of November, 1978 at about 3.15 p.m. at the

Compound of Hospital Kangar in the District of Kangar, in the State of

Perlis did jointly traffic on your own behalf a dangerous drug, to wit

1077.2 grammes of morphine and 257.9 grammes of heroin and thereby

committed an offence under section 39B(1)(a) of the Dangerous Drugs Act

1952 (Revised 1980) and punishable under section 39B(2) of the said Act.

"

On information received by PW.2 ASP Zulkifli, he and a police party had waited in ambush in the Kangar Hospital compound. The prosecution evidence is that Zulkfli then saw two males cycling together into the compound at about 3.15 p.m. Having parked their bicycles one of them handed two plastic bags to the other. Zulkifli then signalled Det. Sgt. Hashim (PW. 4) to close in and arrest the two. The latter arrested one of the appellants who immediately dropped both bags. The other then snatched one of the bags and fled, pursued by ASP Zulkifli and two other members of the ambush party.

The cyclist apprehended was Yu. Having thrown down the plastic bag, the other cyclist ran through the hospital building and crossed a river some distance away from the hospital whereupon the chase was discontinued. Some five months later, Illian was arrested when he came to the Kangar Magistrate Court in connection with some traffic offence. He was identified by ASP Zulkifli and by one other member of the police party who had participated in the ambush at an identification parade subsequently held as being the one who had got away.

The learned trial judge found that the prosecution had established a prima facie case against both appellants and their defence was accordingly called.

Briefly, Yus defence was that he had on the day in question struck up a conversation with a person who said he was called Ah Lian, a total stranger whom he met whilst having a drink at a coffee stall. He found out that the latter was also going to the Kangar Hospital, and together they cycled thereto. When they arrived there, Ah Lian handed to Yu a plastic bag asking him to hand it to another person he indicated, whose name he said was Ah Chai, apparently because he was having some difficulty in locking his bicycle. The person so indicated was then coming out of a car nearby. Yu accordingly handed the plastic bag to Ah Chai. Immediately after that he was arrested and his companion who had earlier said his name was Ah Lian snatched the plastic bag from Ah Chai and ran whilst Ah Chai got into his car and drove off.

Yu insisted that Illian is not the person called Ah Lian, the person who had handed over the plastic bag to him in the hospital compound that afternoon. Illian, he said, was an old friend of his, whilst the missing Ah Lian was until that afternoon a total stranger.

Illians defence was an alibi. While confirming that Yu is an old friend, he said that he was nowhere near the Kangar Hospital compound on the day in question. He claimed to have been in Padang Besar, Thailand from November 16, 1978 until November 20, 1978. In support, he produced a border pass, the genuineness of the contents of which was challenged by the prosecution.

Regarding Yu, the judge said that he had not rebutted the presumptions on a balance of probability nor had he raised a reasonable doubt in the evidence led by the prosecution, and found him guilty. We must again perforce say that here again the l