IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. P-05-277-09/2014
MOHD. YAZID BIN MOHD. SHARIFF …APPELLANT
PUBLIC PROSECUTOR .RESPONDENT
(IN THE MATTER OF THE HIGH COURT OF MALAYA AT
CRIMINAL TRIAL NO. 45B-77-12/2013 BETWEEN
PUBLIC PROSECUTOR AND
MOHD. YAZID BIN MOHD. SHARIFF)
AZIAH ALI, JCA
TENGKU MAIMUN TUAN MAT, JCA AHMADI HJ. ASNAWI, JCA
 The appellant was charged with the following offence before the High Court at Pulau Pinang:
“Bahawa kamu pada 18.11.2012 jam lebih kurang 9.00 malam, di hadapan gerai makan Adina, Jalan Kubang Menerong, Tasek Gelugor, di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang, telah mengedarkan dadah berbahaya iaitu cannabis seberat 4550 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1), Akta Dadah Berbahaya, 1952, yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.
 At the conclusion of the trial, the appellant was found guilty and convicted of the offence and was sentenced to suffer the death penalty.
 The appeal before us was in respect of the said conviction and sentence.
 We considered the issues raised and submissions articulated in support thereof by the parties herein and scrutinised the entire Appeal Record. We found no merit in the appeal and forthwith dismissed the same and affirmed the conviction and sentence handed down by the High Court.
 Here are our grounds.
The Case For The Prosecution
 The prosecution’s case is grounded upon a transaction by way of sale of cannabis between an agent provocateur and the appellant.
 The agent provocateur (AP), PW-7 (D/Corp. Saiful Bahri Bin Zin) and his instructing superior officer, PW-5 (ASP Abdul Razak Bin Osman), were both from Jabatan Siasatan Jenayah Narkotik (JSJN), Ibu Pejabat Kontingen (IPK), Kedah.
 On 6.11.2012, PW-7 was directed by PW-5 to assume the role of an AP pursuant to drug trafficking activities involving a male Malay known as Fazli in Padang Serai and Kulim.
 At about 8.30 p.m. on the same day (6.11.2012), PW-7 with the assistance of his informer met the said Fazli (DW-2, Fazli bin Matt Nor) at Restoren Nasi Kandar Maidin in Kulim whereupon Fazli then took PW-7 to a stall at Jalan Kubang Menerong, Tasek Gelugur, Pulau Pinang.
 At the said stall, Fazli proceeded to introduce SP-7 to a male Malay who identified himself as ‘Black’. PW-7 later identified Black as the appellant. PW-7 reciprocated and introduced himself as Pak Long Man.
 The appellant then asked ‘Pak Long, ada apa datang sini’ upon which PW-7 replied ‘saya datang ke sini kerana hendak beli lembu’.
 The appellant had used the term ‘lembu’ for ganja/cannabis.
 The appellant then replied ‘lembu tidak ada dalam kandang’, meaning the ganja was not available.
 PW-7 enquired the cost of one lembu and was told by the appellant that each would cost RM1,800.00. PW-7 bargained for a reduction of the same but was refused by the appellant. PW-7 then informed the appellant that he wanted to purchase 5 to 10 lembu. However, the appellant said that ‘buat masa ini lembu di kandang sudah habis dijual’ and requested PW-7 to contact him in one or two weeks’ time. The appellant also gave his mobile phone number, 017-4993130, to PW-7.
 On 17.11.2012, at about 5.40 p.m., PW-7 called the appellant’s mobile phone vide the aforesaid number. The appellant picked up the telephone call. PW-7 asked ‘bagaimana kerja kita. Lembu dah ada dalam kandang ke’, to which the appellant replied ‘lembu ada 5 ekor sahaja’. PW-7 pestered ‘carilah lembu sampai 10 ekor’. When enquired, PW-7 told the appellant that he would be coming to see him the following day.
 On the same day at about 9.40 p.m., PW-7 updated PW-5 of the progress of his negotiations with the appellant relating to the purchase of the said ganja. The transaction was to take place at Padang Serai, Kulim, Kedah.
 On 18.11.2012 at about 5.00 p.m., PW-5 briefed his officers pursuant to the same. P/C Abdullah was instructed to be a fellow AP with PW-7 and the former was tasked to keep the flash money amounting to RM9000.00.
 The police team was then divided into three smaller teams. PW-5 headed the first team. Insp. Saiful Munzir was with him. The second team consisted of Insp. Hairul Fazri and two other officers and in the third team were D/Sub. Insp. Muslim and D/Corp. Salwa.
 PW-7 was directed to raise/remove his cap when the ganja was about to be delivered.
 The teams next proceeded to Padang Serai. While on their way, PW-5 received a telephone call from PW-7 that he will be meeting the appellant at Petronas Petrol Station, Padang Serai. The teams converged
to the said petrol station and arrived at about 8.00 p.m. and took their respective positions as directed by PW-5.
 PW-7 telephoned the appellant upon arrival at the said petrol station and was told to wait there. About 10 minutes later, a Viva motorcar bearing the registration number PKT 2580 (‘Viva car’) came and stopped next to PW-7’s motorcar. The appellant was seated at the front passenger seat. A male Malay, later identified as PW-8 (Abdul Naim bin Muhamad Yusof), was at the wheels.
 The appellant got down from the Viva car. Likewise PW-7 too got down from his car and they shook hands. Soon after PW-8 also got down from the Viva car. PW-7 asked ‘bagaimana kerja kita’ upon which the appellant said ‘tempat ini tidak sesuai’. The appellant then instructed PW-7 to follow him to Jalan Kubang Menerong, Tasek Gelugor, Pulau Pinang.
 PW-7 followed the appellant. They went in their respective motorcars. PW-5 and his officers followed suit. They arrived and stopped in front of a restaurant called Kedai Adina, Jalan Kubang Menerong, Tasek Gelugor. The appellant, PW-8 and PW-7 got down from their respective motorcars. The appellant went up to PW-7 and told PW-7 to wait and that he wanted to fetch the lembu. The appellant got back into
the Viva car and drove off. PW-7, PW-8 and P/C Abdullah meanwhile waited for the appellant at the said Kedai Adina.
 About 15 to 20 minutes later, the appellant came back and stopped the Viva car driven by him next to PW-7’s motorcar. The appellant alighted and stood outside the driver’s door of the Viva car and waved at PW-7. PW-7 went up to him, whilst PW-8 walked to the front left passenger door of the Viva car, followed closely by P/C Abdullah.
 As PW-7 was getting close to the appellant, the latter closed the driver’s door and told PW-7 to open the rear right door of the Viva car and said ‘Lembu dah ada dalam beg plastik’.
 PW-7 bent his body into the Viva car and saw a black plastic bag placed at the footwell of the rear left seat. He picked up the black plastic bag which was tied. He untied the black plastic bag and noticed there were five slabs of compressed plant materials suspected to be ganja. A distinctive ganja odour oozed out from the plastic bag.
 PW-7 placed back the black plastic bag and its contents to where it was and closed the door of the Viva car. He told the appellant ‘Oh, barang bagus’ and at the same time removed his cap.
 At about the same time, the appellant turned his body to face the front of Kedai Adina. PW-7 immediately grabbed the appellant’s neck, using his right hand and loudly identified himself ‘police!’. The appellant struggled and managed to free himself. He fled for about 20 to 25 feet before he was arrested with the assistance of PW-5, P/C Abdullah and Insp. Saiful.
 PW-8 was also arrested by Insp. Hairul and P/C Zakaria at the front left passenger door of the Viva car. PW-8 did not put up any resistance.
 PW-5 proceeded to seize the black plastic bag containing the said five slabs of compressed plant materials suspected to be ganja at the rear left passenger footwell of the Viva car.
 At about 9.00 p.m., the appellant, PW-8 and the black plastic bag containing the 5 slabs of compressed plant materials were taken to IPD, Seberang Perai Utara. PW-5 marked the black plastic bag with the marking ‘A’ and the five slabs with the markings A1 to A5 together with the date ‘18.11.2012’ and his initials. PW-5 also prepared the Senarai Bongkar, exhibit P-26 (at p.294, Jilid II, Rekod Rayuan (‘RR’)) and subsequently lodged a police report vide Tasek Gelugor Report 3053/2012, exhibit P-32, evinced at p.296, Jilid II RR.
 The appellant, PW-8, the incriminating exhibits and the relevant documents were subsequently handed over to PW-9, the investigating officer (Insp. Juhaida binti Abdul Rahman), on 19.11.2012 at about 1.20 a.m. vide Sijil Serah Menyerah Barang Kes, exhibit P-27, evinced at p.295, Jilid II, RR.
 The five slabs of compressed plant materials were sent for analysis to the Chemistry Department, Pulau Pinang on 21.11.2012. The chemist, PW-4 (Afizawati @ Halimah binti Ayub), confirmed the same to be cannabis (‘the said drugs’) as defined in s.2 of the Dangerous Drugs Act, 1952 (‘DDA, 1952’), weighing 4,550 grams. Her report is exhibit P-18, evinced at p.129, Jilid II, RR.
 At the end of the prosecution case, the learned trial judge found that the prosecution had indeed made out a prima facie against the appellant on the charge proffered against him. The appellant was ordered to enter his defence.
 We were on all fours with him.
The Case For The Defence
 The appellant opted to give evidence on oath.
 The appellant testified that at the time of his arrest (18.11.2012), his 2 week old baby girl (born on 3.11.2012) was warded in ICU, Penang General Hospital, for treatment. She was suffering from a heart ailment requiring surgery at Institut Jantung Negara.
 On 6.11.2012 between 6.00 p.m. to 8.00 p.m., he was with his wife, Rohani Binti Abd. Manaf (SD-3) and his sister Fatimah binti Mohd. Shariff (SD-4), at the said hospital, visiting his new born baby. At about 8.30 p.m. all three left for home at Kampung Pokok Jenerih. They arrived home at about 9.30 p.m. and the appellant then retired to bed.
 On 18.11.2012, the appellant met his friend, PW-8, at a wedding reception at Kampung Kubang Menerong. He informed PW-8 of the illness suffered by his new born baby. PW-8 promised him to raise the fund to cover the cost of the surgery.
 Next, SP-8 called his friend using the appellant’s mobile phone and thereafter SP-8 requested the appellant to accompany him to Padang Serai to meet his friend. They went in PW-8’s motorcar, bearing the registration number PKT 2580.
 Upon arrival at the Petronas Petrol Station at Padang Serai, PW-8 alighted from the motorcar and went to meet his friend who was standing outside a Nissan motorcar. The appellant did not know PW-8’s friend. Instead he went to buy cigarette at the convenience store of the petrol station. After meeting his friend, PW-8 requested the appellant to come along with him and his friend to a restaurant called Kedai Adina at Jalan Kubang Menerong.
 While on the way to the restaurant, the appellant received a telephone call from his wife, who was then at Penang General Hospital, requesting him to attend to their children’s meal at home. Hence upon arrival, he excused himself and left both PW-8 and his friend at the said restaurant and using PW-8’s PKT 2580 motorcar, drove back to his house.
 The appellant further testified that he arrived back at the restaurant at about 9.00 p.m. When he stopped in front of the said restaurant, PW-7 opened the rear door of the PKT 2580 motorcar he was driving and shouted ‘police!’. At the same time several police officers rushed towards him and kicked and assaulted him. As a result, he had suffered various facial injuries.
 He was arrested by PW-5 and handcuffed. A corresponding body search found nothing incriminating upon his person.
 PW-5 subsequently took him to the rear door of the PKT 2580 motorcar and pointed to a black plastic bag at the footwell of the rear left seat of the motorcar. The appellant denied having any knowledge of the contents of the black plastic bag upon being questioned by PW-5.
 The appellant also denied that he had met PW-7 and SD-2 (Fazly bin Matt Noor) at the stall at Jalan Kubang Menerong on 6.11.2012. The appellant also denied negotiating for the sale and supply of the said drugs after he was introduced to PW-7 by SD-2. The appellant further denied that he was also known as ‘Black’.
 The learned judge rejected the defence posited by the appellant and found that the appellant had failed to raise any reasonable doubt on the truth of the prosecution’s case. Further or alternatively, the defence had also failed to rebut the presumption of trafficking in the said drugs under s.37(da) of the DDA, 1952, invoked against him. The learned judge found that the prosecution has proved its case against the appellant beyond a reasonable doubt as charged.
 The appellant was found guilty and convicted of the same thereof.
The Appeal Before Us
 The appellant canvassed 3 grounds of appeal, namely:
i. the charge was defective;
ii. issues on identity of the drug exhibits; and
iii. issues on the weight of the said drugs.
First issue – charge was defective
 Section 39B(1) of the DDA, 1952, provides:
“39B. Trafficking in dangerous drug.
(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia –
(a) traffic in a dangerous drug;
(b) offer to traffic in a dangerous drug; or
(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.”
 Learned counsel argued that the amended charge proffered against the appellant, evinced at p.4 of Jilid 1, RR, contained no particulars as to under which limb of s.39B(1) of the DDA, 1952, the appellant was being charged. The charge merely states that “…Oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen
39B(1) Akta Dadah Berbahaya, 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama…”. The charge omitted whether the trafficking was committed pursuant to limb (a) or (b) or (c) of s.39B(1) of the DDA, 1952.
 Learned counsel contended that the offending section was not stated with precision, in violation of s.152 of the Criminal Procedure Code (‘CPC’) and as such the charge was defective as not disclosing an offence under the relevant section of the law, rendering it to be an illegality which is not curable. It had also caused substantial prejudice to the appellant and had equally occasioned a failure of justice.
 The learned Deputy Public Prosecutor (‘DPP’) conceded that there was such an omission. However, he countered that it is a mere ‘kesilapan’ (error) and such error is curable under s.422 of the CPC and urged the court to rectify the same under the said section.
 In our view, in such event the sole issue is whether the charge levelled against the appellant is defective in substance as disclosing no offence as contended by learned counsel or whether it contained a mere error as contended by the learned DPP and that such error
or omission to be more precise, is curable under s.422 of the CPC. The section provides –
“422. Subject to the provision contained in this Chapter no finding, sentence or order passed or made by a court of competent jurisdiction shall be reversed or altered on account of –
(a) any error, omission or irregularity in the complaint, sanction, consent, summons, warrant, charge, judgement or other proceedings before or during trial or in any inquiry or other proceeding under this code;
unless such error, omission, irregularity, want, or improper admission or rejection of evidence has occasioned a failure of justice.”
 Hence, what is required is the consideration whether the defective charge against the appellant has caused any prejudice to the appellant or has occasioned a failure of justice – see Yong Yow Chee v Public Prosecutor (1998) 1 SLR 273.
 A scrutiny of the RR, particularly the Notes of Evidence recorded during the trial, reveals that it is certainly a case of trafficking under limb (a) of s.39B(1). Learned counsel conceded that it is so. The testimonies of the relevant prosecution witnesses (PW-5, PW-7, PW-9) upon which the case against the appellant was grounded upon, alluded to a sale transaction of the said drugs between PW-7 and the appellant, an act within the definition of trafficking under s.2 of the DDA, 1952. The cross examination of these witnesses were also grounded upon the issue of the
said sale. The defence of the appellant was also anchored upon the denial of the existence of such transaction between himself and PW-7 and shifted the entire culpability upon PW-8. This much was admitted by learned counsel before us.
 The whole tenor of the then learned counsel’s submissions at both stages of the trial before the learned judge also alluded to the said sale transaction, an offence of trafficking under limb (a) of s.39B(1) of the DDA, 1952. The learned DPP also devoted his entire submissions upon the commission of an offence under limb (a) of the aforesaid section. The learned judge’s findings at the end of the prosecution case was “…I was satisfied that the prosecution had succeeded in establishing a prima facie case of actual drugs trafficking under s.2 of the Act.” At the end of the defence, the learned judge found that the appellant has failed to raise any reasonable doubt on the truth of the prosecution’s case.
 It seems crystal clear to us that everyone who’s who in the entire trial were on the same plank, alluding to a common issue i.e the act of trafficking under limb (a) of s.39B(1) of the DDA, 1952. Learned counsel before us was vivid, very much alive to the issue and conceded the same.
 It is apparent that the defence was not misled nor prejudiced by the omission of the prosecution to state precisely under what limb of s.39B(1) of the DDA, 1952, the appellant was being charged for.
 At all times during the trial, the appellant was apparently aware and knew exactly the nature and essence of the charge levelled against him, was able to give complete instructions to his counsel and he came prepared with his defence. He knew he was being charged for trafficking in a dangerous drug, an offence under limb (a) of s.39A(1) although the same was omitted in the charge.
 The defence posited by the appellant was comprehensive enough and was chronologically in line with the evidence adduced by PW-5 and PW-7, except that it was replete with denials, in particular on principal issues most incriminating against him – see his defence enumerated in paras. 37 to 46 above.
 In brevity, the appellant denied that he had met PW-7 and SD-2 at the stall at Jalan Kubang Menerong on 6.11.2012. He also denied negotiating for the sale and supply of the said drugs after he was introduced to PW-7 by SD-2 at the said stall. The appellant further denied that he is also known as ‘Black’ or that he had introduced himself as ‘Black’
to PW-7. Additionally, the appellant denied showing the black plastic bag containing the said drugs placed at the footwell of the rear left seat of the motorcar driven by him (PKT 2580) to PW-7 and informing PW-7 that ‘lembu ada dalam beg plastik’ on the 18.11.2012 and equally denied having knowledge of the contents of the said black plastic bag when shown and questioned by PW-5 upon his arrest. In a nutshell it is very apparent that the appellant was not misled and was able to answer the charge and he did so in the most vigorous fashion.
 In our judgement, in all the circumstances of the case enumerated above, as the appellant was not misled by the error or omission in the charge against him and he knew full well the charge he had to meet, the error or omission in question was not material and the appellant was equally not prejudiced by the same. Although the prosecution has not specified the manner of trafficking under either limbs of s.39B(1), from the defence posited by the appellant, it could hardly be said that the appellant was in doubt as to what overt act of trafficking he was accused of. Plainly, the said error or omission did not occasion a failure of justice.
 It is our further view that the said error or omission was not a matter of substance but a mere technical non-compliance of the provision of the law which can be condoned as an irregularity and curable on account of s.422 of the CPC. On the evidence relied by the prosecution, the charge was sufficient and valid. The said error or omission cannot be said to have vitiated the charge and is not fatal to the charge. The appellant was never in doubt as to the offence of which he had been convicted and sentenced.
 Section 156 of the CPC also provides a cure should there be any non-compliance with the technical provision of the law. The section enacts that no error or omission in stating the offence or the particulars required to be stated in the charge shall be material unless the accused was misled by it. In our view, the case before us is a fit and proper case for the invocation of this provision to cure the error or omission in the charge levelled against the appellant in addition to the provision under s.422 of the CPC. We were satisfied that the said error or omission in the charge has not misled nor has caused any prejudice nor has occasioned a failure of justice to the appellant.
 Additionally, we noted that this current issue was not canvassed by the defence at any stage of the trial before the learned judge. Hence, it has deprived the learned judge from addressing the same. Equally it has deprived the prosecution to do the needful to rectify the same which can be done at any time, even at the submission stage, before judgment is pronounced. Learned counsel before us admitted that they were aware of the said omission at the trial stage but nevertheless did nothing and did not submit upon the same at both stages of the trial on account that it would operate to the advantage of the appellant, whatever that means.
 Interestingly this issue was also not canvassed in the appellant’s Petition of Appeal.
Second Issue – identity of the drug exhibits
 Learned counsel submitted that the learned judge did not take into account PW-4’s (chemist) evidence in her witness statement that she had received 25 ‘bongkah’ (slabs) of compressed plant materials. Learned counsel brought our attention to PW-4’s witness statement at p.102, Jilid 1, RR, and surmised that PW-4 had received 25 slabs of compressed plant materials:
“Saya telah memeriksa kotak kadbod tersebut bersama borang permohonan (Borang Polis 31) dengan No. Report Polis: Tasek Gelugor 3053/12. Hasil dari pemeriksaan ke atas setiap kotak tersebut saya dapati di dalamnya berisi satu beg plastik bertanda ‘J’. Di dalam beg plastik tersebut berisi lima bungkusan plastik bertanda ‘J1’ hingga J5’. Setiap satu bungkusan plastik tersebut berisi lima bongkah bahan tumbuhan mampat yang dibalut dengan kertas kerajang timah.”
 Learned counsel further submitted that the aforesaid evidence by PW-4 is inconsistent with PW-5’s testimony that he had seized the said black plastic bag containing 5 slabs of compressed plant materials and he had handed over the said plastic bag together with the said 5 slabs to the investigating officer of the case, PW-9.
 Learned counsel hence submitted that PW-9 must have handed over to PW-4, 25 slabs of compressed plant materials instead of 5 slabs, the amount handed to him by PW-5.
 Finally, learned counsel submitted that there was no explaination for the said discrepancy but yet the learned judge accepted that 5 slabs were indeed sent to the chemist and found that learned counsel’s challenge that there was a serious break in the chain of evidence was devoid of merit -see p.138, Jilid 1, RR.
 We have tooth-combed the entire evidence of PW-4 and at the end of the day we were in agreement with the learned judge that learned counsel’s submission on this issue has really no substance nor merit at all. Verily, PW-4 had indeed corrected herself in her oral evidence in examination in chief wherein at p.16, Jilid 1, RR, she had testified:
“Semasa saya terima bungkusan P20A, P21A, P22A, P23A dan P24A, di dalam setiap bungkusan terdapat satu bongkah bahan tumbuhan mampat yang dibalut dengan kertas kerajang timah dan dibalut dengan plastik.”
 She was not challenged over this correction.
 P20A to P24A are the original plastic wrappings of the 5 slabs of compressed plant materials which was marked by PW-5 with the markings A1 to A5 and also marked by PW-9 with markings J1 to J5. PW-4’s oral testimony simply means that in each ‘bungkusan’ there was only one ‘bongkah’ (slab) of compressed plant materials. Hence, there were only 5 slabs of compressed plant materials received by her.
 PW-4’s testimony is consistent and in conformity with the testimonies of PW-7 and PW-5 that there were only 5 slabs of compressed plant materials inside the black plastic bag.
 It is also consistent with and confirmed by PW-5’s testimony that he had handed over to PW-9 only 5 slabs of compressed plant materials.
 It is also consistent with and confirmed by PW-9’s testimony that he had received 5 slabs of compressed plant materials from PW-5 and had handed over the same 5 slabs of compressed plant materials to PW-4 for analysis. PW-4 confirmed the markings J1 to J5 on the 5 slabs when she received the same from PW-9.
 PW-4’s testimony is also corroborated in terms by her own report (exhibit P18, at p.291 of Jilid II, RR) and in conformity with the Senarai Bongkar prepared by PW-5 (exhibit P26, at p.294, Jilid II, RR); with the Sijil Serah Menyerah Barang Kes entered between PW-5 and PW-9 (exhibit P27, at p.295, Jilid II, RR); with PW-5’s Police Report (exhibit P32, at p.296, Jilid II, RR); and with the photograph of the exhibits, P7B, at p.280, Jilid II, RR. These documentary exhibits alluded to the fact that at all times there were only 5 slabs of compressed plant materials in question.
 We found no real substance in learned counsel’s submission that there was a break in the chain of evidence in relation to the said incriminating drug exhibits. We were satisfied that there were only 5 slabs of compressed plant material seen by PW-7 and seized by PW-5 and handed over by PW-5 to PW-9. These 5 slabs were the same 5 slabs that was handed over by PW-9 to PW-4 and received and analysed by PW-4 and finally ended as evidence in court as exhibits P20, P21, P22, P23 and P24.
 Interestingly, this ground of appeal was also not canvassed before the learned judge. It was raised for the first time before us.
Third Issue – Weight Of The Said Drugs
 Learned counsel complained that the learned judge did not take into consideration the discrepancies of the weight of the said drugs by PW-5 which was 4700 grams; by PW-4 (chemist) which was 4550 grams; and by the learned DPP who had submitted at the end of the defence case that the weight of the drugs in the possession of the appellant was 9623 grams. The unexplained discrepancies given by the witnesses had created a reasonable doubt upon the identity of the drug exhibits.
Meanwhile the learned judge on the other hand had made a finding that the drugs weighed 4.6 kilograms – p.144, Jilid 1, RR.
 The law in respect of this issue is settled. In Loh Kah Loon v PP (2011) 6 CLJ 345, the Federal Court had stated:
“ It can be seen from the above that there was no break in the chain of evidence regarding the exhibits. The identity of the exhibit was well established. Thus, on the facts of this case, the difference in the weight of the exhibits as found by the police and the chemist, by itself cannot be said to have created doubt as to the identity of the exhibits. The real question is whether the exhibits recovered by the police is the same exhibits sent to and examined by the chemist and subsequently produced in court as evidence. We have no doubt it was the same exhibits.”
 Both PW-5 and PW-9 had identified the drug exhibits that were produced in court. Both these witnesses had also identified the markings made by them on the exhibits, including the date and the signatures they had affixed on the 5 slabs of compressed plant materials seized from the appellant. PW-4 had also noticed and identified the markings she found on the exhibits when she received it from PW-9.
 Additionally, the handing over or transfer of the drugs exhibits from PW-5 to PW-9 was properly documented vide Sijil Serah Menyerah Barang Kes, exhibit P27. The transfer of the drug exhibits from PW-9 to
PW-4 was documented vide acknowledgement receipt, exhibit P17, p.290, Jilid II, RR, issued by PW-4 to PW-9. The return of the drug exhibits by PW-4 to PW-9 was also documented vide PW-4’s chemist report, exhibit P18. The seizure of the drug exhibits from the appellant by PW-5 was documented vide Senarai Bongkar, exhibit P26. Finally the drug exhibits were produced in court by PW-4.
 Upon the evidence enumerated above, we harboured no doubt that the drug exhibits seized were the same drug exhibits produced before the High Court implicating the appellant with the charge. The evidence showed there was no break in the chain of evidence. The movement of the exhibits was clearly explained.
 We also took note that PW-4 had weighed the drug exhibits using a calibrated weighing machine whereas PW-5 had used a government issued weighing machine available in his office. He was not asked by either party whether the weighing machine he had used was calibrated. However, it is of no consequence on account that it is the weighing done by the chemist which determines the actual weight of the drugs and forms the basis of the charge – see Hasbala Mohd. Sarong v PP (2013) 6 CLJ 945.
 The learned DPP’s submission before the learned trial judge that the weight of the drug exhibits in the possession of the appellant was 9623 grams is of no relevance and inconsequential. There is no evidence to sustain his submission. Hence his submission is to be treated as a flawed submission without any basis in evidence. Likewise, the findings of the learned judge on the weight of 4.6 kilograms did not vitiate his finding in calling the appellant to enter his defence and in convicting the appellant.
 For all the reasons given above, we find no real substance in this appeal to merit our intervention. The appeal against conviction is dismissed and the sentence handed down by the High Court is confirmed.
DATED: 13th APRIL 2016
(AHMADI HAJI ASNAWI) Judge
Court of Appeal, Malaysia
For the Appellant:
Ku Abd. Rahman b. Ku Ismail
Tetuan Ku Abdul Rahman & Associated
Peguambela & Peguamcara
No. 49, Jalan Pahlawan, Taman Senangan
For The Respondent:
Tengku Amir Zaki Bin Tengku Abdul Rahman Timbalan Pendakwa Raya Jabatan Peguam Negara