624 Malayan Law Journal [2016] 2 MLJ upon to enter his defence. At defence stage, the appellant chose to give evidence under oath. His defence was that he had no knowledge that the capsules he swallowed contained dangerous drugs. The appellant said that before departure, he went to see his friend, Chibike, in a hotel room in Lagos where he had a drink with Chibike before he became drunk. Chibike asked him to swallow precious stone to be delivered to someone in Malaysia. He swallowed many precious stones given to him by Chibike. At the end of the trial, the learned trial judge found that the defence ought not to be believed. The trial judge further found that the appellant’s story about Chibike and precious stones was an afterthought and a recent invention. The learned trial judge found that the defence had not raised a reasonable doubt on the prosecution case and failed to rebut the presumption of trafficking on balance of probabilities. The appellant was convicted and sentenced to death, hence this appeal. The appellant contended: (a) that all the written statements tendered by the prosecution were inadmissible in law as they did not strictly comply with the conditions in s 402B of the Criminal Procedure Code (‘the CPC’); (b) that the learned trial judge had descended into the arena of conflict when His Lordship cross-examined the appellant and SP4; and (c) there was no mens rea possession, alternatively, it was a case of passive possession. Held, allowing the appeal: (1) The preconditions in s 402B(2) of the CPC must be complied with before the witness statement of SP3 could be admitted as evidence. Furthermore, the chemist (SP3) did not read her written statement in the open court under oath, her written statement was not marked as an exhibit by the court and the witness statement was not identified by SP3 in the open court during the trial. In view of the infirmities in the testimony of the chemist, the charge of trafficking was not proved with that certainty. The court also found that as the witness statements of four other witnesses SP1, SP2, SP4 and SP5 equally did not comply with the same provision of the law, they too, were inadmissible (see paras 18, 20 & 23). (2) With regard to the appellant’s defence that he swallowed precious stones contained in the 29 capsules, the court found that the trial judge had fallen into error in descending into the arena of dispute thereby allowing his judgment of the facts to be clouded by the results of his cross-examination. The court further agreed that the trial judge had exceeded the desirable limits of judicial intervention in the examination and cross-examination of the appellant and SP4 notwithstanding the wide ambit of s 165 of the Evidence Act 1950 (see para 29). (3) Based on the evidence adduced there was great doubt whether the appellant was conscious of his possession. The court agreed with the appellant’s contention that the learned trial judge erred when His A B C D E F G H I