JUDGMENT

Suriyadi Halim Omar JCA:

[1] On 11 March 2008 we heard this appeal, and had set aside the conviction of the appellant under s. 39B(1)(a) of the Dangerous Drugs Act 1952, which carries the mandatory sentence of death by hanging. We had instead substituted that conviction with that of s. 6(1) of the Dangerous Drugs Act 1952, for being in possession of 316 grams of cannabis, and sentenced him under s. 39A(2) of the same Act.

[2] As regards the facts, acting on information regarding the activity of an Indian Muslim trafficking cannabis at Jalan Kuala Kangsar, Ipoh, D/Sjn Busra b Abd Kadir (SP5) had arranged a meeting with an informer, to have himself introduced to the alleged trafficker ie, the appellant. SP5 was to be the potential buyer and thereafter to arrest the appellant. The informer made an appointment with the appellant whereby he agreed to meet SP5 on 1 February 2000 between 2pm to 2.30pm at Restoran Rajamah, Jalan Kuala Kangsar, Ipoh. At about 2.20pm on 1 February 2000, SP5 went to Restoran Rajamah with the informer. Upon reaching the vicinity the informer went alone into the said restaurant while SP5 waited outside.

[3] At about 3.10pm the informer called SP5 on his hand phone informing him that the appellant had arrived and was with him in the restaurant. SP5 went into the restaurant where he was introduced to the appellant. The latter introduced himself as Kamal. He informed SP5 that he only had about 1/2 kg of drugs ('barang'). Some discussion was held between them about the price of the drugs. When they reached an agreement on the price, the appellant together with SP5 went to a lane at the back of the restaurant, and upon reaching the end of the lane the appellant picked up a blue plastic packet on the road beside a drain and handed it over to SP5. SP5 opened the packet, and found in it compressed dried leaves believed to be cannabis, wrapped in a Malay newspaper.

[4] SP5 handed back the packet to the appellant and pretended to take out a sum of money totalling RM2,000 (normally referred to as flash money) from his pocket to pay him. SP5 then immediately gave the prearranged signal to the police party lying in ambush followed by his arrest of the appellant. The seized plastic packet was taken by C/Insp Elias b. Abu Bakar (SP4). At the Narcotics office, SP4 marked the exhibits, left his signature and subsequently handed it over to the investigating officer (SP7), together with the appellant at about 7pm. At about 11.05am on 2 February 2000, SP7 handed over the exhibits to the Chemistry Department in Ipoh for analysis. The analysis was done by SP2 who then confirmed that the seized blue packet contained a total of 316 grams of cannabis.

Findings Of The High Court Judge

[5] The High Court had concluded that the evidence of SP5 was the main thrust of the prosecution's case, with the evidence establishing that the appellant was involved in a negotiation for the sale of drugs. The informer only played the role of setting up a meeting between SP5 and the appellant. The evidence of SP5 was corroborated by the evidence of SP4 who testified that he was informed by SP5 about the information received. It was on his instruction that P5 had acted as an agent provocateur to meet the appellant. It was not disputed that SP5 was an agent provocateur and his evidence was admissible under s. 40A of the Dangerous Drugs Act 1952. The evidence of SP5 was never really challenged by the defence; instead it was the existence of the informer and his identity that attracted much of the defence attention. From the entirety of the evidence, the court had held that the role played by the informer had not been exceeded, as to justify the invocation of s. 114(g) of the Evidence Act on the failure of the prosecution to call him as a witness. His role was merely to introduce the appellant to SP5. At no time was he proved to be playing any important role that could turn him into an agent provocateur or a participes criminis.

[6] The court w