IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. N-05-262-09/2014
MEJIDA LADINES EHRDINE
PUBLIC PROSECUTOR .RESPONDENT
(IN THE MATTER OF THE HIGH COURT OF MALAYA
CRIMINAL TRIAL NO. 45-1-02/2013 BETWEEN
PUBLIC PROSECUTOR AND
MEJIDA LADINES EHRDINE)
MOHTARUDIN BAKI, JCA AHMADI HAJI ASNAWI, JCA ZAMANI A. RAHIM, JCA
 In the High Court below, the appellant was charged and was convicted and sentenced to suffer the death penalty upon the following charge:
“Bahawa kamu pada 6 haribulan Jun 2011 jam lebih kurang 6.10 petang, di pejabat Kastam Cawangan Narkotik, Kampung Jijan Tengah, Nilai, di dalam Daerah Seremban, dalam Negeri Sembilan Darul Khusus, telah didapati mengedar dadah berbahaya iaitu cannabis seberat 15,507 gram, dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya, 1952, yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama”.
 The appellant’s appeal before us was in respect of the said conviction and sentence.
 Upon conclusion of the hearing of the appeal, we dismissed the appeal and affirmed the said conviction and sentence.
 We now give our grounds.
The Case For The Prosecution
 In brevity, a team of Customs officers from the Narcotics Branch led by PW-3 (Pegawai Kastam Kanan, Mohd Nasir Bin Busu), acting upon information received had, on 6.6.2011 at about 4.50 p.m., arrested the appellant, a Filipino woman, at Hentian Bas Duta, Kuala Lumpur.
 The team had earlier tailed the express bas ‘Pancaran Matahari’ from Hentian Restoran Jejantas, Sungai Buloh until Hentian Bas Duta, Kuala Lumpur. The information received was that a certain suspect was in the said bus allegedly trafficking in drugs. The information also revealed that the said bus had earlier departed Bukit Kayu Hitam, Kedah.
 At Hentian Duta, Kuala Lumpur, PW-3 saw the appellant disembarking from the bus. She went to the luggage compartment of the bus, took a bag carrying the ‘BLAZE’ brand name (exhibit P-13) and had it slung over her shoulders. The appellant next proceeded to the waiting terminal.
 PW-3 then approached the appellant. He introduced himself as a Customs officer and directed the accused to open the said bag. The bag
was, however, padlocked. The appellant was further instructed to open the padlock. PW-3 saw the appellant taking out a key from her handbag to open the padlock.
 After the bag was opened, PW-3 found some clothes at the top of the bag. PW-3 saw layers of newspapers beneath the clothes when the appellant lifted the clothes upon his instruction. The appellant was further instructed to lift the newspapers and beneath the newspapers, PW-3 found some ‘ketulan mampat’. When that was done, the appellant was told to lock the bag again.
 The appellant was arrested and brought to the Customs Narcotics Branch Office at Kampung Jijan, Nilai.
 A detailed examination of the contents of the bag (exhibit P-13) was conducted in front of the appellant and a total of 16 ‘ketulan mampat’ suspected to be drugs were found from inside the said bag.
 PW-3 marked the 16 ‘ketulan mampat’ with the markings N10 to N25, the date 6/6/11 and his initial. PW-3 also executed Borang Senarai Bongkar, exhibit P-15, listing all the articles seized from the appellant.
 On the same day (6.6.2011), PW-3 handed over the appellant, the suspected drug exhibits and all the other articles seized from the appellant to the investigating officer of the case, PW-4 (Penguasa Kastam Afzarizal bin Abdul Wahab) at the same office vide ‘Borang Penyerahan Barang Kes’, exhibit P-14.
 On 7.6.2011, PW-4 had the suspected drug exhibits sent to the chemist, PW-5 (Zulkifli bin Mohd Edin), for analysis. PW-5 confirmed the substance to be cannabis weighing 15,507 grams (hereinafter referred to as ‘the said drugs’) as defined in section 2 of the Dangerous Drugs Act, 1952 (hereinafter referred to as the ‘DDA’). His report is exhibit P-28, dated 28.9.2011, evinced at pp. 247-248, Jilid 2, Rekod Rayuan (RR).
 At the end of the case for the prosecution, the learned trial judge was satisfied that the prosecution had proven the charge proferred against the appellant on a prima facie case basis and ordered the appellant to
enter her defence. The learned trial judge had invoked the presumption of possession and knowledge of the said drugs under section 37(d) of the DDA and found that the charge of trafficking in the said drugs in terms of section 2 of the same was proven on account of the appellant’s act of carrying and transporting the said drugs in the course of her journey to Kuala Lumpur.
 The appellant opted to give evidence on oath.
 The appellant testified that she is a Filipino national working as a housemaid in Bangkok, Thailand. She came to Malaysia upon an arrangement made by one, Man D, whom she had known for about two weeks through internet chatting.
 Man D had requested her to bring some perfumes, cigarettes and soaps to Malaysia and will be paid RM2,000.00 for the errand.
 Man D had further instructed her to take a bus from Thailand to Changlun, Kedah. Hence, on 3.6.2011, she took a bus from Bangkok to Haatyai, Thailand. She stayed overnight in Haatyai before proceeding to Danuk. The following day, from Danuk she went to Changlun on a motorcycle arranged by Man D. She had only two bags with her.
 Upon arrival at Changlun, Man D called and told her that a motorcar would soon arrive and horned three times. A motorcar arrived about 10 minutes later and the driver subsequently horned thrice. She entered the motorcar and was driven to Tee Hotel in Changlun. She went into the hotel. In the hotel, she was then given the said bag (exhibit P-13) by the driver of the motorcar. The driver did not say anything. Neither did she.
 The bag, exhibit P-13, was padlocked. The driver told the receptionist to help her carry the bag to her room.
 The appellant testified that it was a heavy bag and as far as she knew, the bag contained perfumes, cigarettes and soaps as told to her by Man D.
 She was tired and not feeling well and immediately went to bed after taking a shower. After taking her breakfast downstairs the next morning, she packed her bags to leave for Kuala Lumpur. Now she had three bags with her. She started walking to Changlun bus station at about 8.00 a.m. It took her about 15 minutes to reach the bus station. She then purchased a bus ticket to Kuala Lumpur as instructed by Man D. She placed the exhibit P-13 bag in the luggage compartment of the bus as it was a big bag. The said bag was padlocked and she held on to the lock at all times until her arrival at Kuala Lumpur.
 She got down and took the bag (exhibit P-13) from the luggage compartment of the bus upon arrival at Hentian Duta, Kuala Lumpur. The instruction given to her by Man D was that she was supposed to go to Carrefour in Kepong and gave the said bag to someone there.
 The appellant continued that while walking away from the bus, a group of Customs officers accosted her. She was ordered to open the P13 bag and after looking at the contents of the bag, she was instructed to close the bag again. Subsequently she was taken to the Customs office at Nilai.
 The appellant testified that she only found out about the drugs in the said bag upon her arrival at the Customs office in Nilai.
 At the conclusion of the trial, the learned trial judge found that the appellant had failed to rebut on the balance of probabilities the presumption applicable against her under s.37(d) of the DDA and that the prosecution has proven its case beyond a reasonable doubt against her. She was found guilty and stand convicted of the same and sentenced to suffer the death penalty.
The Appeal Before Us
 The appellant posited the following two grounds –
i. The appellant has no knowledge of the drugs inside the said bag; and
ii. PW-5, the chemist, did not comply with the requirement of s.37(j) of the DDA in his analysis of the said drugs.
First Ground – the appellant has no knowledge of the drugs inside the said bag.
 It was learned counsel’s submission that the appellant does not have the knowledge that the contents of the bag, exhibit P-13, does contain the said drugs and alluded to the evidence adduced by PW-3 that the appellant reacted in normal fashion when she was accosted and asked to open the said bag. In addition the appellant was very cooperative and made no attempt to flee the scene before the drugs were found.
 Learned counsel also alluded to the appellant’s testimony that the Tee Hotel at Changlun where she had put the night and where the said bag was given to her, was arranged by Man D and the investigating officer (I.O), PW-4, had agreed with the suggestion that a certain individual from Bangkok had paid for the hotel bill.
 The bag had no special compartments and the drugs were not concealed. The drugs were merely covered by several sheets of newspapers and clothes. It was also submitted that the appellant displayed no overt acts to show that she had the requisite knowledge that
the bag she was carrying in fact contained drugs. As far as she is concerned, she was paid RM2000.00 by Man D to deliver perfumes, cigarettes and soaps to someone in Kepong. Learned counsel summed up that the appellant was indeed an innocent carrier of the said bag containing the drugs.
 It is worthy to note that at the end of the prosecution’s case, the learned trial judge found, on the facts and evidence adduced, that the appellant was having in her control or custody the said bag containing the impugned drugs and thereafter invoked the presumption under s.37(d) of the DDA that the appellant was having possession of the said drugs and was also deemed to have known the nature of the said drugs.
 On the facts, we were with her Ladyship on the issue of custody or control of the said bag on the part of the appellant. Equally, we opined that she was correct in invoking the said presumption to operate against the appellant. In a case where possession and knowledge is presumed under the statute, conduct of the appellant is an irrelevant consideration. The said presumption (under s.37(d) of the DDA) only requires prove that the person is found to have had in custody or under his control anything whatsoever containing dangerous drugs. Once the person is proven to
have had in custody or under his control anything whatsoever containing dangerous drugs, it is sufficient to trigger the presumption and the person is hence presumed to have been in possession of the said drugs and shall, until the contrary is proved, be deemed to have known the nature of such drugs. The prosecution need not prove anything else. The person’s conduct, whether overt, passive, docile or otherwise is of no consequence. There is equally no necessity to fathom the person’s state of mind (intention) which in any event, is largely incapable of being proved by direct evidence. There is also no need for the trial court to make additional or alternative findings of mens rea possession and knowledge of the same once the presumption is invoked. To foray into such findings would be prejudicial and invite confusion upon the defence on account of the different evidential burden placed on the defence to rebut a presumption which is on a balance of probabilities, whereas it only requires the defence to only raise a reasonable doubt to dispel an affirmative findings of mens rea possession and knowledge, which is a lower burden.
 The appellant did not adduce any evidence to negate her acts of trafficking in the said drugs, to wit carrying and transporting the bag containing the drugs from Changlon to Kuala Lumpur as found by the learned trial judge. Her defence revolved upon the evidence that the said bag was given to her by Man D’s intermediary at Tee Hotel in Changlon to be delivered to someone in Kepong, Kuala Lumpur and claimed want of knowledge of the said drugs inside the said bag. Hence, the issue now is whether the presumption of knowledge invoked against him has been rebutted. The burden is now shifted upon the appellant to rebut the said presumption on a balance of probabilities, which is a heavier burden than merely casting a reasonable doubt.
 We agreed with the learned trial judge that the appellant’s disposition when she was first accosted by PW-3 and his officers is no ground to suggest that she has no knowledge of the drugs inside the said bag. This evidence is neither here nor there. In all probability the appellant had no idea of the extreme seriousness of the situation she was in.
 The co-operation the appellant extended to PW-3 and his men and the fact that she did not make any attempt to flee the scene must be appreciated in a proper perspective. Here, she was surrounded by several law enforcement officers equipped with full authority to do the needful in the course of enforcing the law entrusted upon them. In such situation the appellant, in fact, had little option but to submit to PW-3’s authority and to co-operate with them. Such submission, co-operation or docile conduct is no yardstick to gauge the appellant’s want of knowledge of the incriminating exhibits found inside the bag she was carrying and transporting.
 By her own account, the appellant had known Man D for barely 2 weeks before her departure to Kuala Lumpur from Bangkok via Changlon through internet chatting. She has yet to meet Man D in person. She was paid RM2000.00 to deliver cigarettes, perfumes and soaps in a bag to someone in Kepong, Kuala Lumpur. Her transportation from Haatyai to Changlon was arranged and paid for by Man D. Her hotel bill at Tee Hotel was also paid for by Man D. Yet she agreed to do Man D’s bidding with vigour, enthusiasm and without question.
 These facts taken together must have raise some concern and suspicion of Man D’s conduct and motive, in particular, the modus operandi employed to deliver the items to its final destination in Kepong, Kuala Lumpur. All the more so when there is nothing special or unique about the items to be sent to someone in Kepong and these items generally are easily available at local supermarkets at a much lower cost than employing and paying someone (appellant) RM2000.00 to have it hand delivered all the way from Thailand to Kuala Lumpur. Yet the appellant threw all caution to the wind.
 We will now visit the appellant’s contention that she was an innocent carrier. The Federal Court in a recent case of Munuswamy Sundar Raj v PP (2015) 6 AMR 405 held that the defence of innocent carrier is a valid defence and whether it will succeed or not would very much depend on the facts of each case. The Federal Court cited with approval the following passage in Hoh Bon Tong v PP (2010) 4 AMR 681; (2010) 5 CLJ 240:
“The defence of innocent carrier must necessarily bring into picture the concept of wilful blindness. And according to Yong Pung How CJ (Singapore) in PP v Hla Win (1995) 2 SLR 424 (at page 438), ‘the concept of wilful blindness qualifies the requirement of knowledge’. And His Lordship continued further by saying (at the same page),
“As Professor Glanville Williams aptly remarked in his Textbook on Criminal Law at page 125:
‘….the strict requirement of knowledge is qualified by the doctrine of wilful blindness. This is meant to deal with those whose philosophy is: Where ignorance is bliss, ‘tis folly to be wise’. To argue away inconvenient truth is human failing, If a person deliberately ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know,’ he is taken to know”.
Continuing at the same page, His Lordship said:
“In Ubaka v PP (1999) 1 SLR 267, the principle laid down in Warner v Metropolitan Police Commissioner (1980) 2 All ER 356; and modified in Tan Ah Tee v PP (1980) 1 MLJ 49 were applied by the trial judge. In his grounds of judgment, this court quoted the following passage by the trial judge:
‘Ignorance is a defence when there is no reason for suspicion and no right and opportunity of examination and ignorance simpliciter is not enough’.”
 We will now investigate the facts. The appellant was entrusted to deliver the items to someone in Kepong and was handsomely paid for doing the errand in a manner replete with suspicions, enumerated in paras 37 and 38, above. Nevertheless, the appellant did not see it fit to investigate the contents of the said bag. She had the key to the padlock to open the said bag. She had all the time to open the bag and examine its contents at Tee Hotel after the bag was given to her and taken to her room. However, she came up with a version that she was tired and unwell and went to sleep immediately after taking her shower. But then again, she had all the time to investigate the contents of the bag the next morning before checking out of the hotel.
 If the appellant had done so, she would have easily seen the ketulan-ketulan mampat inside the said bag as the said ketulan-ketulan mampat were merely covered under newspaper sheets and some clothes and not ingeniously hidden in invisible or unsuspecting specialised compartments.
 The appellant appeared to have opted to deliberately ignore the obvious. Her conduct is verily an act of wilful blindness which qualifies the requirement of knowledge, the consequence of which is she is taken to know. The rationale is ‘if a person deliberately ‘shuts his eyes’ to the obvious because he ‘doesn’t want to know’, ‘he is taken to know’. The appellant’s deliberate omission to investigate the contents of the said bag while sufficient opportunity was available to her, falls squarely within the four walls of the legal proposition posited by Professor Glanville Williams alluded to earlier.
 We were of the considered view that, having regard to the appellant’s evidence in its totality, the learned trial judge had committed no error when she found that the appellant was not an innocent carrier. On the facts, the appellant was guilty of committing a classic case of wilful blindness. Hence, we found as the learned trial judge did find, that the
presumption of knowledge of the drugs inside the bag invoked against her under s.37(d) of the DDA stood unrebutted.
Second Ground – PW-5, the chemist, did not comply with the requirement of s.37(j) of the DDA, 1955
 Section 37(j) of the DDA provides that:
“When any substance suspected of being a dangerous drug has been seized and such substance is contained in a number of receptacles, it shall be sufficient to analyse samples of the contents of a number not less than ten per centum of such receptacles and if such analysis establishes that such samples are all of the same nature and description, it shall be presumed, until the contrary is proved, that the contents of all the receptacles were of the same nature and description as the samples so analysed and if such analysis establishes that such samples consist of or contain a dangerous drug, it shall be presumed, until the contrary is proved, that the content of all the receptacles consist of or contain the same proportion of such drug.”
 The relevant portion of PW-5’s cross-examination harped on by learned counsel appeared as follows (at pp. 79 to 82, Jilid 3, RR):
“S: Saya merujuk encik kepada mukasurat 4 penyataan saksi encik, encik setuju dengan saya, di bawah tajuk analisis, untuk menentukan barang kes adalah Cannabis, perlu menjalankan 4 ujian, betul?
J: Ya, saya setuju.
S: Ujian yang paling penting untuk menentukan kehadiran
cannabinoids adalah ujian ketiga dan keempat?
J: Keempat-empat ujian adalah penting.
S: Saya rujuk encik kepada mukasurat yang sama perenggan
terakhir. Untuk ujian ketiga dan keempat encik telah mengambil sampel perwakilan. Setuju dengan saya, encik telah merumuskan bahawa barang kes ini adalah cannabis berdasarkan kepada ujian yang dibuat di atas sampel perwakilan yang encik ambil, betul?
J: Saya merumuskan dan mencapai keputusan yang konklusif
berdasarkan kepada keempat-empat ujian yang saya jalankan. Bukan hanya kepada ujian ketiga dan keempat sahaja.
S: Sampel perwakilan ini yang encik ambil daripada barang kes,
encik telah membuat keputusan analisis bagi keseluruhan tumbuhan tersebut, betul?
J: Seperti di mukasurat 5, saya telah membuat rumusan di mana
saya berpuas hati dengan keputusan keempat-empat ujian yang telah saya jalankan dan mencapai keputusan yang konklusif bahawa keseluruhan bahan tumbuhan tersebut adalah cannabis seperti yang ditakrifkan dalam seksyen 2 Akta Dadah Berbahaya 1952.”
S: Mengikut penyataan saksi encik, berat sampel perwakilan yang
encik ambil untuk menjalankan ujian ketiga dan keempat adalah kurang daripada 1% daripada setiap barang kes, betul.
J: Saya mohon untuk memberi sedikit penjelasan.
J: Ini hanya merupakan sampel perwakilan. DI mana sampel
perwakilan ini mewakili keseluruhan sampel yang saya terima. Saya telah menjalankan analisis 100% iaitu untuk ujian pertama dan ujian kedua 100% ke atas keseluruhan bahan tumbuhan. Ujian ketiga hanya sampel perwakilan untuk mewakili keseluruhan. Itu hanya wakilan sahaja. Tapi setelah dipastikan 100% bahan tumbuhan tersebut adalah tumbuhan jenis cannabis, itu hanya satu jenis tumbuhan sahaja. Ujian ketiga hanya wakilan sahaja di mana wakilan ini mewakili keseluruhan tumbuhan yang saya terima. Ujian saya adalah 100%.
S: Saya katakan kepada encik, sampel perwakilan yang encik
ambil adalah tidak cukup untuk menentukan sama ada barang kes 16 paket ini adalah bahan cannabis atau pun tidak.
J: Saya tidak setuju.”
 From the evidence elicited from the cross examination of PW-5 reproduced above, learned counsel submitted that PW-5 only took two representative samples from each ketulan mampat, which cumulatively amounts to a mere 16 grammes whereas the evidence shows that each ketulan mampat weigh between 900 grammes to 1000 grammes. It means that PW-5 took only 2% from the entire incriminating exhibit weighing about 15,500 grammes. Hence, learned counsel submitted that the amount of the samples taken was insufficient for the purpose of analysis, in contravention of s.37(j) of the DDA.
 We were of the view that learned counsel’s submission on the issue is inherently flawed. Section 37(j) is not about the total weight of the drug found or the total amount or weight of the samples taken for analysis. The 10 per centum requirement clearly refers to the number of receptacles. There is no requirement for the amount or weight of the samples of the drugs to be taken for analysis. The decision of the Federal Count in Chu
Tak Fai v PP  1 MLJ 201 is on point. At pp. 214, 215, the Court stated:
“ In any event it is our view that the ten per centum stipulated in s.37(j) refers to the number of receptacles and not the total weight of the drug found or the total amount or weight of the samples taken for analysis. Section 37(j) only requires the taking of samples from ten per centum of the total number of the receptacles and not the drug. It is for the chemist to determine the sufficiency of the weight of the drug required for the analysis. This has been lucidly explained in Gunalan a/l Ramachandran & Ors v Public Prosecutor  4 MLJ 489 (CA) with which we agree.
 On the sufficiency of the evidence of the chemist, we wish to reiterate that the court is entitled to accept the evidence of the chemist on its face value without the necessity for him to go into details of what he did in the laboratory step by step unless the evidence is so inherently incredible that no reasonable person can believe it to be true or the defence calls evidence in rebuttal by another expert (see Balachandran; Munusamy v Public Prosecutor  1 MLJ 492; Public Prosecutor v Lam San  3 MLJ 426 and Khoo Hi Chiang v Public Prosecutor and another appeal  1 MLJ 265)
 With regard to the chemist’s evidence in Leong Bon Huat, Abdul Hamid Mohamad JCA (as he then was) said in Gunalan a/l Ramachandran, at p.516:
‘With greatest respect, I find that the judgment of the Supreme Court in that case is not an authority for saying that the law requires that 10% of the total weight of the drug must be tested.
No reference was also made to Public Prosecutor v Lam San. With respect, the judgment seems to focus on the interpretation of the words ‘more than 10%’ used by the chemist as if it is a statutory provision or a clause in a contract. The point is, there is no provision whatsoever in the Act which requires at least 10% of the total weight of the substance in question to be taken out for the purpose of analysis. As seen in Public Prosecutor v Lam Sam, the 10% is nothing more that the practice among chemists’.
The above view was shared by Abdul Aziz Mohamad JCA (as he then was) in a separate judgment in the same case at p. 527 when he said:
‘No law or statute has laid down the process which a chemist is bound to use in order to prove the nature of a substance as being
or as containing a particular dangerous drug or the weight of the dangerous drug in a bulk of the substance. The process belongs to the realm of science and is devised according to the discipline and principles of science.’
It is to be noted that the above observations of the learned judges have since received approval sub silentio from the Federal court (see Gunalan a/l Ramachandran & Ors v Public Prosecutor  2 MLJ 197). With respect, we agree with the views of both the learned judges. It is clear therefore that there is no requirement for the amount or the weight of the samples of the drug to be taken for the purpose of analysis by the chemist. It is up to the chemist to carry out the analysis scientifically. It is also for the chemist to determine the adequacy of samples for the purpose of analysis. If the defence wishes to challenge the sufficiency of the weight of the drug analysed, the chemist’s evidence must be challenged and evidence in rebuttal must be led, if necessary.”
 In regard as to what he actually did, PW-5, clarified in his reexamination:
“S: Kamu telah ditanyakan oleh peguam berkenaan dengan sama ada
kamu setuju ataupun tidak sampel perwakilan yang kamu ambil untuk kes ini tidak cukup. Kamu cakap tidak setuju. Boleh kamu terangkan kenapa kamu tidak setuju?
J: Proses analisis saya tidak hanya kepada ujian ketiga dan keempat.
Ianya perlu dilihat keseluruhan proses analisis. Di mana untuk ujian pertama dan ujian kedua iaitu ujian mikroskopik dan ujian pemeriksaan fizikal, saya telah membuat ujian ke atas keseluruhan bahan tumbuhan. Iaitu 100% bahan tumbuhan. Ujian pertama saya buat 100%. Ujian kedua 100% ke atas bahan tumbuhan. Di mana ujian pertama dan ujian kedua adalah untuk tentukan yang tumbuhan tersebut adalah tumbuhan daripada genus cannabis. Dan setelah saya berpuas hati ujian pertama dan kedua, adalah merupakan genus cannabis dan hanya terdiri daripada hanya 1 jenis bahan tumbuhan sahaja. Kemudian baru saya teruskan ujian ketiga dan keempat dengan mengambil sampel perwakilan. Di mana sampel perwakilan ini mewakili keseluruhan bahan tumbuhan yang saya terima. Hanya wakilan sahaja. Sampel ini saya ambil adalah berdasarkan kepada SOP yang telah ditetapkan oleh Jabatan Kimia Malaysia. Di mana analisis saya adalah 100%. Maksudnya kena
lihat keseluruhan proses analisis, bukan hanya tertumpu pada ujian ketiga dan keempat sahaja.”
 It is clear that PW-5 had analysed all the 16 ketulan mampat, which he found to be plant materials. In respect of the first and second tests (visual examination and microscopic examination) he had conducted a 100% analysis and found that all the plant materials were of a single type, i.e from the genus cannabis. Having satisfied with the same, he proceeded to conduct the third and fourth tests (Duquenois-Levine test and Thin Layer Chromatography test (TLC)) where the representative samples were taken in accordance with the SOP formulated by his Department, Jabatan Kimia Malaysia and came to a conclusive finding that all the plant materials were cannabis as defined in section 2 of the DDA, 1952. According to PW-5, the 4 tests constitutes a 100% analysis of the exhibit given to him.
 There was no evidence in rebuttal against PW-5’s evidence and we were neither in a position to question or dispute the SOP formulated by the Jabatan Kimia. As such PW-5’s evidence must be accepted, unless of course it can be shown that his evidence is so inherently incredible that no reasonable person can believe it to be true. We were satisfied that PW-5’s analysis had suffered no infirmities. As suggested by high
authority alluded earlier, the process of analysis belongs to the realm of science and is devised according to the discipline and principles of science. In PP v Lam Sam (1991) 3 CLJ 426, Hashim Yeop Sani, CJ Malaya said at p.428:
“As to how a trial court should approach the evidence of a chemist, we wish to advert to the judgment of this court in Munusamy Vengadasalam v PP where in a passage at p.256 (P 226), Mohamed Azmi SCJ on behalf of the court put in focus the function of the chemist in a trial of this nature:
‘We are therefore of the view, that in this type of cases where the opinion of the chemist is confined only to the elementary nature and identity of a substance, the court is entitled to accept the opinion of the expert on its face value, unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion. So long as some credible evidence is given by the chemist to support his opinion, there is no necessity for him to go into details of what he did in the laboratory, step by step.”
 We were hence of the firm view that PW-5’s analysis is not defective. He had analysed the whole quantity of the 16 ketulan mampat, i.e 100% and thereby making it unnecessary for the chemist or prosecution to rely on section 37(j) of the DDA. In Balachandran v PP (2005) 2 MLJ 301, Augustine Paul JCA (as he then was) in delivering the judgment of the Federal Court said at p. 313:
“The trust of the first submission of learned counsel becomes a relevant matter for consideration only if the chemist had not analysed all the substances handed to him. The chemist had testified on the net weight of the pinkish substance in each of the five packages followed by the weight of monoacetylmorpines obtained from each package. This indicated that he had analysed all of the pinkish substances in each of the packages. It is
confirmed by his evidence that the pinkish substances in the five packages were powdered during analysis. This makes it patent that the chemist had analysed all the substances handed to him thereby making it unnecessary for the prosecution to rely on s.37(j).”
 For all the reasons enumerated above we found no merit in the appellant’s appeal. We therefore unanimously dismissed the appeal and affirmed the conviction and sentence handed down by the High Court.
DATED: 20th OCTOBER 2016
( AHMADI HAJI ASNAWI )
Court of Appeal, Malaysia
For the Appellant:
Tetuan Hisham Nazir & Co
No. 10-3, Tingkat 2, Jalan USJ 9/5N
47620 Subang Jaya
For the Respondent:
Jasmee Haneeza Timbalan Pendakwa Raya Jabatan Peguam Negara 62100 Putrajaya