JUDGMENT

Denis Ong JCA:

I have had the advantage of reading the judgments of both my learned brothers Abdul Hamid Mohamad and Abdul Aziz Mohamad in draft. I concur with the decision of Abdul Hamid Mohamad that this appeal be dismissed and the convictions and sentence confirmed for the same reasons expressed in his judgment.

Abdul Hamid Mohamad JCA:

There are three separate appeals by the three appellants. However, even at the High Court they were referred to as the 1st, 2nd and 3rd accused and the appeal record also refer to them as the 1st, 2nd and 3rd appellants respectively. In this judgment I shall refer to them as 1st, 2nd and 3rd appellants, the 1st appellant being Gunalan a/l Ramachandran, the 2nd appellant being Ganesan a/l Haja Mohidin and the 3rd appellant being Victor a/l Rajendran.

Mr. Gurbachan Singh appeared for the 1st and 2nd appellants and Mr. Suresh Thanabalasingam and Mr. Kuldip Singh appeared for the 3rd appellant. Deputy Public Prosecutor, Encik Abdul Wahab bin Mohamad appeared for the Public Prosecutor.

As Mr. Suresh, learned counsel for the 3rd appellant adopted the submissions of learned counsel for the 1st and 2nd appellants and his (Mr. Suresh) brief submissions were on the same issues, I shall discuss the grounds of appeal and the submissions thereof on behalf of the three appellants together.

All the three appellants were charged as follows:

Bahawa kamu bersama-sama pada 3 Februari 1999, jam lebih kurang 10.25 malam, dibilik sebelah kanan sebuah rumah tidak bernombor Kg. Sam Yoke, Jalan Sungai Besi, Kuala Lumpur, Wilayah Persekutuan telah mengedar dadah berbahaya iaitu 61.1 gram monoacetylmorphines dan oleh yang demikian itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan.

They were convicted and sentenced to death. They appealed to this court.

Briefly, the facts as adduced by the prosecution are that on 3 February 1999 at about 10.25pm, a team of police officers led by Chief Inspector Rajendran a/1 Kanesan (PW4) went to an unnumbered squatter house at Kampong Sam Yoke, Sungai Besi, Kuala Lumpur to conduct a raid. On arrival at the house, PW4 found the door of the house open. They rushed inside. At the hall which was on the right side of the house, they found a group of 10 Indian males who were sitting and watching television. PW4 introduced himself and directed his men to arrest them.

At that point of time PW4 saw a male Indian (2nd appellant) opening the door of the room adjoining the hall. As soon as the 2nd appellant saw PW4 and his team, the 2nd appellant closed the door. PW4 pushed the door and when the 2nd appellant pushed it back, PW4 kicked the door and rushed into the room followed by two of his men, ie, PW6 and Detective, Lans Corporal Ahmad Kamil (DLC Ahmad Kamil). Besides the 2nd appellant, PW4 saw two more Indian males ie, the 1st appellant and the 3rd appellant who were not wearing shirts sitting cross-legged on the floor in front of some " barangan " (goods/utensils). At the same time PW4 saw the 1st appellant dropping a heat-sealer on the floor. PW4 introduced himself as a police officer and directed PW6 and DLC Ahmad Kamil to hand-cuff the appellants. PW4 then conducted a search in the room in the presence of the three appellants and his two police officers. Resulting from the search, he seized the " barangan " that he found on the floor where the 1st and the 3rd appellants were sitting when he first entered the room. They are:

(i) One big transparent plastic packet containing yellow powder and " ketulan " suspected to be heroin;

(ii) Two transparent plastic packets which have been sealed, each packet containing two bundles of small plastic packets, each bundle containing 20 small plastic packets totaling 80 and each small plastic packet contained yellow powder and " ketulan " suspected to be heroin;

(iii) One transparent plastic bowl conta