THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 169 ENGLISH

Benjamin Chinedu v Public Prosecutor
Suit Number: Criminal Appeal No. B-05(M)-170-04/2017(NGA) 

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal – Whether the conviction safe

Criminal law – Whether the drug exhibits positively identified – Whether the appellant had exclusive possession of the bag in question – Whether the appellant had knowledge of the impugned drugs – Whether the appellant an innocent carrier without knowledge – Defence of innocent carrier and the doctrine of wilful blindness

JUDGMENT

Introduction

[1] The appellant, a Nigerian national, was charged and tried before the High Court at Shah Alam with an offence of trafficking in dangerous drugs under the Dangerous Drugs Act, 1952 (‘the Act’). The charge reads as follows:

“Bahawa kamu pada 5.7.2012, jam lebih kurang 8.30 malam bertempat di Kawasan Tuntutan Bagasi F, Ketibaan Antarabangsa Aras 3, MTB, KLIA, Sepang, di dalam Daerah Sepang, di dalam Negeri Selangor, telah memperedarkan dadah berbahaya iaitu Methamphetamine sejumlah berat 387.6 gram. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

[2] At the end of the trial, the appellant was found guilty by the learned Judicial Commissioner of the High Court (‘the learned JC’). Upon conviction, the appellant was sentenced to suffer the mandatory death penalty.

[3] Aggrieved with the impugned decision, the appellant appealed to this Court against the said conviction and sentence. We heard the appeal on 16.4.2018 and dismissed the same. We now give our reasons for so doing.

The Prosecution’s Case

[4] The narrative of the prosecution’s case was well encapsulated in the learned JC’s grounds which may be summarized as follows. On 5.7.2012 at about 8.30 p.m., Sub Inspector Ghazali bin Hj. Md Din (PW3) and a team of police detectives from Narcotics Division KLIA, Sepang were observing passengers and baggages at Carousel F at the Arrival Hall, Level 3, Main Terminal Building (MTB), Kuala Lumpur International Airport (KLIA), Sepang.

[5] PW3 was standing in front of the exit of Carousel E just before the Customs Examination Counters. PW3 observed that the appellant was pulling a black bag (Exhibit P7) with his right hand while his left hand was carrying a plastic bag in a very suspicious manner. The appellant looked hesitant and walking unsteadily towards the customs check point.

[6] PW3 then approached and apprehended the appellant who was identified as Benjamin Chinedu, a Nigerian through his passport. The appellant had arrived at KLIA on an Egypt Air flight from Abuja, Nigeria via Cairo and Bangkok. PW3 requested the appellant to scan his bags (P7 and the plastic bag) but no suspicious image was elicited on the screen. At this point in time, PW3 noticed that the appellant looked worried and anxious. Suspecting something amiss, PW3 and his team escorted the appellant and his bags to the Narcotics Office at Level 3, MTB, KLIA for further examination.

[7] In the said office, PW3 ordered the appellant to empty his belongings in the black bag (P7). The appellant still looked worried and anxious. PW3 then conducted a thorough search on P7 and found that the bag was modified and there were traces of gum around the inside layer of the bag P7. Underneath the said layer of P7, PW3 found a piece of rubber cover which covered a piece of thin plank. Beneath of the thin plank, PW3 found two yellow plastic packets. When PW3 opened the two yellow plastic packets, he found each contained an envelope wrapped with yellow tape. PW3 then examined both the yellow envelopes and found them to contain a plastic packet each containing crystal substances suspected to be drugs. The two plastic packets were marked as P33A and P34A respectively.

[8] Thereafter, PW3 handed over the drug exhibits and the appellant to the investigating officer, Inspector Paul a/l John (PW6). The drug exhibits (P33A and P34A) were sent by PW6 to the government chemist, Norhaya binti Jaafar (PW4), at the Chemistry Department, Malaysia, for analysis. PW4 confirmed that the contents in P33A and P34A were 387.6 grammes of Methamphetamine, a dangerous drug as listed in the First Schedule of the Act.

[9] PW6 also sent some clothings and a tooth brush found in P7 to Revathi a/p Perumal (PW8), a Science Officer at the Chemistry Department, Malaysia, for DNA analysis. PW8 confirmed that the DNA found on the tooth brush marked “N2” (Exhibit P53A) and a pair of shorts marked “N5” (Exhibit P56A) matched with the DNA profile of the blood specimen of the appellant.

Findings at the end of the prosecution’s case

[10] The learned JC had considered and accepted the evidence of PW4 on the drugs analysis undertaken by the witness. PW4 had analysed the drug exhibits and had confirmed that the crystal substance analysed consisted of 387.6 grammes of Methamphetamine. PW4 had testified that methamphetamine is listed under the First Schedule of the Act as dangerous drugs.

[11] As for the element of possession, the learned JC accepted the evidence of prosecution’s witnesses that the appellant was caught red-handed carrying bag P7 which contained the impugned drugs carefully concealed underneath the inner layer of P7. The learned JC inferred that the appellant must have knowledge of the impugned drugs so concealed in the bag P7 coupled with the suspicious conduct of the appellant before and after the bag was examined.

[12] The learned JC also relied on the fact that it was not disputed by the defence that P7 belonged to the appellant as evinced from the baggage tag (exhibit P8) showing that it was registered in the appellant’s name and the appellant’s DNA profile were found on the tooth brush (exhibit P53A) and a pair of shorts (exhibit P56A) recovered from inside P7. These facts conclusively proved that the appellant had custody and control of P7 and the impugned drugs found in it. Having found the custody and control had been proven, the learned JC invoked the presumption under section 37(d) of the Act to fasten possession and knowledge on the part of appellant of the impugned drugs.

[13] As for the element of trafficking, the learned JC found that the appellant was transporting and carrying the impugned drugs from Abuja, Nigeria to KLIA. As these acts of the appellant falls under the definition of trafficking in section 2 of the Act, the learned JC found that the appellant had trafficked in the impugned drugs.

[14] Being satisfied on maximum evaluation that all the elements of the charge had been established, the learned JC held that the prosecution had proven a prima facie case against the appellant. Thus, the appellant was called upon to enter his defence on the charge preferred.

The Defence

[15] The appellant elected to give evidence under oath. The appellant is the sole witness for the defence. In his evidence, the appellant’s version was that he came to Malaysia to buy spare parts based on the recommendation of his neighbour, Eze Okonkwo. His neighbour had told him that he had bought spare parts from Malaysia which were cheaper and of better quality. As the appellant had never been to Malaysia, Eze Okonkwo told him that his friend by the name of John Okeke who was in Malaysia could help him when he arrived in Malaysia. Eze Okonkwo gave him John Okeke’s telephone number and that John Okeke would book the hotel for the appellant in Puchong business centre.

[16] Eze Okonkwo also told him that John Okeke would come to the hotel to meet the appellant and would bring him to meet spare parts dealers in Malaysia. Eze Okonkwo told him that he would lend the appellant a bag for his trip to Malaysia and the bag was to be given to John Okeke as a present for his assistance. Eze Okonkwo lend the appellant the bag when the appellant told Eze Okonkwo that he wanted to purchase a bag. Eze Okonkwo brought an empty bag to the appellant’s house and handed it to him. The appellant testified that he had checked the bag and found it to be ordinary without any alteration.

[17] On arrival at the KLIA, the appellant stated that when he was going to collect his bag from the carousel, he was stopped by some officers who asked him “where is your bag?”. The officers had three (3) bags with them and asked which one belonged to him. The appellant identified his bag and they took him to a room for examination. The officers then found two (2) plastic bags containing drugs inside the bag after they dismantled the bag.

[18] The appellant denied having any knowledge of the drugs inside the bag and told the officers that the bag was borrowed from his friend. The appellant said that he was never involved in drugs and he believed that it was Eze Okonkwo who had made use of him by putting the drugs inside the bag and pretended to be so kind and told him to give it as a present to John Ekeke on his behalf. The appellant also tendered his caution statement (exhibit D57) as part of his defence.

Findings at the end of the defence case

[19] After considering the defence version, the learned JC found that the appellant had not succeeded in raising a reasonable doubt on the prosecution’s case up on the following reasons:

(a) The appellant’s excuse that he borrowed the bag from his neighbour and that he did not know how the drugs were found concealed in the bag was against common sense. Being a businessman, the appellant could not be that gullible to borrow the travelling bag from his neighbour whom he said framed him up with the drugs. The appellant could have easily purchased such a bag which does not cost much in Nigeria, as the learned JC had observed that the bag P7, is a cheap quality bag. If the intention of the appellant was to purchase Toyota spare parts which would cost a substantial amount of money, it is extremely illogical for the appellant to borrow a cheap bag P7 to travel. The appellant’s story that he had to use P7 as such is most unbelievable;

(b) The appellant was guilty of wilful blindness as he had ample opportunity to examine P7 thoroughly before using it. It was quite obvious that if the appellant had examined P7 carefully, he would have noticed the alternation to the inner layer of P7 as there was gum all over it. These were suspicious signs and the appellant should have been alerted. Besides, the bag P7 which the appellant claimed was to be given to John Okeke in Malaysia would also raised suspicion as there must be something sinister about it to carry a cheap looking bag as a present to John Okeke all the way from Nigeria. Hence, by turning a blind eye to all the suspicious circumstances and not examining P7 thoroughly, the appellant is taken to have knowledge of the drugs concealed in P7. From the facts and circumstance, the appellant was not an innocent carrier, as he knew about the drugs and was involved in trafficking them;

(c) The reason for the appellant to travel to Malaysia to buy Toyota spare parts is a flimsy excuse without any proof of what the appellant intended to purchase here. He did not even explain what kind of spare parts that he had wanted to buy and the comparative prices here and in Nigeria which the appellant claimed to be cheaper here. In fact the appellant had no clues about where and from whom in Malaysia that he would be able to purchase the spare parts;

(d) In his caution statement, exhibit D57, the appellant did not even mention the names Eze Okonkwo and John Okeke. These characters are therefore a creation of the appellant. If they exist in the first place, the appellant would have mentioned their names in D57 at the earliest possible opportunity; and

(e) The appellant merely denied that he was not behaving suspiciously at KLIA without giving a proper explanation in the face of his glaringly suspicious conduct as observed by PW3.

[20] Relying on the decisions in Zainudin bin Raujan v PP [2013] 4 CLJ 21; Gunalan Ramachandran & Ors v PP [2006] 1 CLJ 857; Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169; [1991] 1 CLJ 311 and PP v Yuvaraj [1968] 1 MLJ 238, the learned JC rejected the appellant’s defence of no knowledge of the impugned drugs. The learned JC further rejected the appellant’s defence of being an innocent carrier and held that the appellant was guilty of wilful blindness for shutting his eyes to the obvious. The learned JC also held that the defence was unable to rebut the presumption under section 37(d) of the Act on a balance of probabilities. The learned JC made a positive findings based from the facts and circumstances of the case that the appellant had possession and knowledge of the drugs that were concealed in P7. The appellant was thus convicted and sentenced to death. Hence the appeal before us.

The Appeal

[21] Before us, learned counsel for the appellant advanced the following three broad grounds of appeal:

(a) There are doubt as to the identity of the drugs exhibits;

(b) No exclusive possession of the bag P7; and

(c) The appellant had no knowledge of the impugned drugs.

Our Deliberation and Decision

[22] On the first ground regarding the identity of the drug exhibits, learned counsel’s complaint was that the drug exhibits were not positively identified due to the discrepancies in the markings and the descriptions between the evidence of PW3 and PW6. As there was no explanation from any of the prosecution’s witnesses, therefore, it was argued that there were gaps in the prosecution’s case.

[23] Learned counsel referred to us PW3’s police report (exhibit P26) and his evidence in court which were disclosed as follows:

(a) In the PW3’s police report (P26), it was stated as follows:

“...Pemeriksaan teliti di bahagian dasar beg ini saya dapati ada kesan mencurigakan yang mana saya lihat ada kesan ubahsuai dan digam di sekelilingnya, saya telah periksa dapati ada lapisan getah serta kepingan papan lapis, di bawah papan lapis ini saya telah menjumpai dua (2) bungkusan plastik lutsinar warna coklat. Saya telah buka kedua-dua bungkusan plastik lutsinar itu di mana tiap satu bungkusan ada sampul bersolatape warna kuning di dalamnya ada bungkusan plastik lutsinar mengandungi ketulan kecil kristal bahan disyaki dadah, anggaran berat kasar 500 gram.”

(b) Whereas, in his testimony, PW3 stated at page 69, Appeal Record, Volume 3:

“Saya jalankan pemeriksaan rapi dibawah kepingan papan lapis itu dimana saya telah menjumpai dua bungkusan plastik warna coklat. Saya buka kedua-dua bungkusan plastic lutsinar itu dimana setiap satu bungkusan terdapat sampul yang dibaluti solatape warna kuning, saya periksa dalam bungkusan sampul bersolatape ini ada bungkusan plastik lutsinar mengandungi ketulan kecil kristal dipercayai bahan disyaki dadah...”

[24] Learned counsel argued that it is clear from P26 and PW3’s evidence that PW3 found two brown coloured transparent plastic packages. However, PW6 in his evidence did not mention anything about these two brown coloured transparent packages. In his evidence at page 80 of the Appeal Record Volume 3, PW6 stated “...2 bungkusan plastik lutsinar, setiap satu bungkusan ada sampul bersalotape, warna kuning di dalamnya ada bungkusan plastik lutsinar, mengandungi ketulan kecil kristal, bahan disyaki dadah AB: 500 gram."

[25] Further, learned counsel submitted that there was no entry with regards to the brown coloured transparent plastic in the Search List (exhibit P27) but it was mentioned by PW6 in exhibit P42, Form 31, when the exhibits were sent to the chemist for an analysis. In P42, PW6 stated that:

“Di dalam sampul surat bertanda “N" di luarnya terdapat (2) bungkusan warna coklat bertanda “N2" dan “N4" di dalam setiap bungkusan coklat terdapat satu peket lutsinar berisi serbuk dan ketulan setiap satu bertanda “N3" dan “N5"."

[26] Relying on PP v Lee Yit Weng [2011] 9 CLJ 345, learned counsel argued that there was a serious doubt in the prosecution’s case with regards to the identity of the drugs exhibits. Thus, the appeal should be allowed and the appellant be set at liberty.

[27] We had perused the Appeal Records and we disagree with learned counsel’s complaint on the issue regarding the identity of the drugs exhibits. We noted that PW3 had marked the exhibits as “G4” and “G5” and PW6 had marked the same as “N2”, “N3”, “N4” and “N5”. The chemist (PW4) had received the exhibits marked as “N2”, “N3”, “N4” and “N5” for her analysis. PW4 also observed that there were markings of “G4” and “G5” on the same exhibits she received. All the exhibits had been positively identified by PW3, PW4 and PW6 in court. We have no doubt as to the identity of the drugs exhibits. They were the same exhibits recovered by PW3 from the bag P7 which were later handed over to PW6 and subsequently to PW4 for analysis. They were the same exhibits produced and identified by the witnesses in open court. Therefore, we held that the first ground raised by learned counsel bereft of any merit.

[28] We find that the fact of the case in Lee Yit Weng, supra, can easily be distinguished as explained by the learned High Court Judge at paragraphs 38-42 of his Lordship’s grounds in that case, as follows:

“[38] Having considered the reasons given by the learned counsel for the defence in support of the second ground, I am convinced that serious doubts as to the identity of the proscribed drug seized had been established by the defence.

[39] First, the defence had established that the colour of the proscribed drug at the time of seizure by SP5 was white but at the time when it was received by the chemist SP4 was colourless. This, to me, is a serious doubt as to the identity of the drug which must be explained by the prosecution. Unfortunately, no evidence was led by the prosecution to explain the difference in the colour of the proscribed drug.

[40] Secondly, the doubt as to the identity of the proscribed drug was further compounded by the packet in one same envelope marked P7 had not changed in colour. In fact, the best person to explain such a change in colour would be the I.O SP8. Sad to say that neither was the I.O SP8 asked to explain the change of colour of the 16 plastic packets nor was he shown the 16 plastic packets P7B (1-16) in court.

[41] The non explanation by the prosecution as to the change in colour of the proscribed drug and of the 16 plastic packets P7B (1-16) had resulted in a serious break in the chain of evidence. Thirdly, the above problem was further aggravated by the fact that the openings of the two of the 16 plastic packets P7B (1-16) marked B1 and B2 produced in court were found to be heatsealed. This was contrary to the testimony of SP5 who told the court that all the 16 plastic packets P7B (1-16) including the two above-­mentioned plastic packets marked B1 and B2 were sealed but could be opened with hands. Going by the evidence of SP5, the crucial question to ask here is: who had tampered with the two plastic packets marked B1 and B2? Unfortunately, no explanation was given by the prosecution in this respect.

[42] Since serious doubts as to the identity of the drugs had been established by the defence, it is therefore, incumbent upon the prosecution to provide the necessary link in the chain of evidence in calling all the officers who had handled the exhibits. I find that the prosecution had failed in providing such a link when it failed to call the "anggota” who did the fingerprint-dusting on all the exhibits which he received from SP5. The missing link here is that no evidence had been led as to who the "anggota” was and for how long the exhibits were left with him for fingerprint-dusting before they were handed back to SP5.”

[29] In regard to the second ground of appeal touching on the issue of no exclusive possession of the bag P7, learned counsel submitted that there is serious doubts in the prosecution’s case because at all material time the appellant did not have exclusive possession of P7 based on the following:

(a) It is undisputed that the baggage P7 was found not locked with padlock. The evidence of PW3 confirmed this that “...dia membuka beg warna hitam jenama Mosaic tanpa berkunci...”;

(b) That the appellant travelled to KLIA via multiple stops. It is evident that the appellant had arrived at KLIA on an Egypt Air flight from Abuja, Nigeria to KLIA via Cairo and Bangkok;

(c) That the prosecution has failed to call any witness or adduce any evidence from Cairo and Bangkok Airport Authorities on the transfer of the baggage from flights MS 078 and MS 0960 with a gap of almost 3 hours 10 minutes at Cairo Airport and a further gap of 1 hour 25 minutes at the Bangkok Airport. There was no investigation done to negate any possibility of mistake or tampering or that the appellant had possession of P7 at the Cairo and Bangkok airports; and

(d) That the appellant’s name was not found on the Baggage Identification Tag (P22). This was confirmed by PW6. Therefore the prosecution failed to prove that the appellant had exclusive possession of P7 and knowledge that he was carrying the impugned drugs.

[30] We did not agree with the learned counsel’s complaint on this issue of exclusivity. We noted that this issue was not challenge and never put to the prosecution’s witnesses. It was not put that the drugs were planted by person or persons during the journey. The appellant was charged in Malaysia. We are of the considered view that it is not necessary or rather a futile exercise for the prosecution to call witnesses from the Cairo Airport or from the Bangkok Airport. The necessity does not even arise without any suggestion or putting from the defence during the prosecution’s case.

[31] Even though the bag P7 was not under locked and key but the impugned drugs were concealed and gumped underneath the inside layer of P7 covered with a piece of rubber and a piece of thin plank. The bag P7 was modified in such a way that it required a considerable time to hide the impugned drugs. These definitely in our view could not be done during the transit at the Cairo Airport or at the Bangkok Airport layover. We are of the view that the learned counsel’s suggestion that the drugs had been planted (even if there was such a suggestion), would be a mere conjecture and hypothetical. We find no merit in the learned counsel’s second ground of appeal.

[32] On the final ground of appeal, learned counsel argued that the appellant was an innocent carrier without knowledge. Learned counsel argued that the learned JC had misdirected himself when his Lordship made a finding that the appellant had the requisite knowledge of the impugned drugs. The appellant came to Malaysia to buy Toyota spare parts and his evidence was supported by the recovery of large money from him. Learned counsel further argued that the appellant’s evidence was further supported by exhibits D60A and D60B.

[33] We agreed with the learned Deputy Public Prosecutor’s submission that this issue of innocent carrier without knowledge had been duly considered by the learned JC in his grounds. We agreed with the learned JC’s finding in rejecting the appellant’s version and in holding that the appellant was guilty of wilful blindness. The learned JC had this to say:

“26. I have evaluated the defence’s version and my conclusion is that he accused failed to cast any reasonable doubt on the prosecution’s case for the following reasons:

1) The accused’s excuse that he borrowed the bag from his neighbour and that he did not know how the drugs were found concealed in the bag was against common sense. Being a businessman, the accused could not be that gullible to borrow the travelling bag from his neighbour whom he said framed him up with the drugs. The accused could have easily purchased such a bag which does not cost much in Nigeria. As I have observed the bag P7, it is a cheap quality bag. If the intention of the accused was to purchase Toyota spare parts which by all means cost a substantial amount of money, it is extremely illogical for the accused to borrow a cheap bag P7 to travel. The accused’s story that he had to use P7 as such is most unbelievable.

2) The accused was guilty of wilful blindness as he had ample opportunity to examine P7 thoroughly before using it. It was quite obvious that if the accused had examined P7 carefully, he would have noticed the alteration to the inner layer of P7 as there was gum all over it. This signs were suspicious and the accused should have been alerted. Next, the bag P7 which the accused claimed has to be given to John Okeke in Malaysia would also raised suspicion as there must be something sinister about it to carry a cheap looking bag as a present to John Okeke all the way from Nigeria. Hence, by turning a blind eye to all the suspicious circumstances and not examining P7 thoroughly, the accused is taken to have knowledge of the drugs concealed in P7. From the facts and circumstances, the accused was not an innocent carrier, as he knew about the drugs and was involved in trafficking them.

3) The reason for the accused to travel to Malaysia to buy Toyota spare parts is a flimsy excuse without any proof of what the accused intended to purchase here. He did not even explain in detail what kind of spare parts that he wanted to buy here and the comparative prices here and in Nigeria which the accused claimed to be cheaper here. In fact the accused had no clues about where and from whom in Malaysia that he was able to purchase the spare parts.

4) In D57, the accused did not even mention the names Eze Okonkwo and John Okeke. These characters are therefore a creation of the accused. If they exist in the first place, the accused would have mentioned their names in D57 at the earliest possible time.

5) The accused merely denied that he was not behaving suspiciously at KLIA without giving a proper explanation in the face of his glaringly suspicious conduct as observed by PW3.”.

[34] It is trite that the defence of innocent carrier must be viewed in light of the doctrine of wilful blindness (PP v Koo Pui Fong [1996] 1 SLR® 734; Hoh Bon Tong v PP [2010] 5 CLJ 240). Whether or not wilful blindness is applicable in a particular case is a question of inferences to be drawn by the trial Judge from all the facts and circumstances of the particular case, giving due weight, where necessary, to the credibility of the witnesses (PP v Tan Kok An [1996] 1 MLJ 89). In PP v Herlina Purnama Sari [2017] MLRA 499, Raus Sharif, PCA (now CJ Malaysia) had elaborated on the concept of wilful blindness lucidly as follows:

“[45] Wilful blindness necessarily entails an element of deliberate action. If the person concerned has a clear reason to be suspicious that something is amiss but then embarks on a deliberate decision not to make further inquiries in order to avoid confirming what the actual situation is, then such a decision is necessarily a deliberate one. The key threshold element in the doctrine of wilful blindness itself is that of suspicion followed by (and coupled with) a deliberate decision not to make further investigations. Whether the doctrine of wilful blindness should be applied to any particular case would be dependent on the relevant inferences to be drawn by the trial judge from all the facts and circumstances of the particular case giving due weight, where necessary, to the credibility of the witnesses. (see PP v. Tan Kok An [1995] 4 MLRH 256)

[46] The concept of “wilful blindness” had been discussed in a number of local cases but it seems to have had its genesis in the dissenting judgment of Yong Pung How CJ (Singapore) in the case of Public Prosecutor v Hla Win [1995] 2 SLR 424. The doctrine of “wilful blindness” can be summarised to be applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on inquiry as to the legitimacy of a particular transaction. To put it another way if the circumstances are such as to arouse suspicion, then it is incumbent on a person to make the necessary inquiries in order to satisfy himself as to the genuineness of what was informed to him. Should he fail to embark upon this course of action, then he will be guilty of “wilful blindness”. In other words, he is then taken to know the true situation. He then cannot be said to have either rebutted the presumption of knowledge or have raised a reasonable doubt as to his knowledge of the situation.

[47] Most of the cases where the concept was held to apply concerned cases in which the accused was asked to carry certain articles, or a package, or a bag, or to swallow certain items. In these circumstances, where the request to do any of those things mentioned would be such as would arouse the suspicion of a reasonable person as to the contents, it was upon the accused to make sufficient inquiries so as to dispel or to set straight such suspicions. Should the accused not make any or any sufficient inquiries under those circumstances, the concept of wilful blindness would apply so as to fasten upon him or her the necessary knowledge as to the nature of those contents. In other words, if he deliberately shuts his eyes to the obvious, because he ‘doesn’t want to know’ he is taken to know.”.

[35] We agreed with the finding of the learned JC on this issue of wilful blindness and an innocent carrier defence put up by the appellant in this case. The learned JC had considered the issue of wilful blindness and the defence of innocent carrier put up by the appellant carefully. We disagreed with the learned counsel’s contention that the issue was not adequately considered by the learned JC.

[36] In regard to the failure by the prosecution to investigate Eke Okonkwo and John Okeke, we agreed with the learned Deputy Public Prosecutor’s submission that the prosecution should not be blamed as particulars of those characters mentioned by the appellant were not furnished to the investigating officer. Without the detailed particulars, it is impossible for a meaningful and successful investigation to be done by the authority (Alcontara Ambross Anthony v PP [1996] 1 MLJ 209; [1996] 1 CLJ 705).

[37] We disagreed with the learned counsel’s submission that the failure of the prosecution to disprove material part of the evidence put forward by the appellant had resulted in a reasonable doubt in the prosecution case. Our view is fortified by the fact that the integral part of the appellant’s defence centred on his lack of knowledge of the impugned drugs where the learned trial judge had invoked the statutory presumption under section 37(d) of the Act. It is trite that the appellant bears the evidential burden to negate the element of knowledge on the balance of probabilities as expounded in PP v Yuvaraj [1968] 1 LNS 115; [1969] 2 MLJ 89. Perusing the Appeal Records, we found that the learned JC had correctly decided that the appellant had failed to discharge the burden heaped upon him.

[38] We agreed with the learned JC that the defence of the appellant had failed to raise a reasonable doubt on the prosecution’s case and failed to rebut the presumption of knowledge and possession invoked against him under section 37(d) of the Act on a balance of probabilities.

Conclusion

[39] Having regard to the totality of the evidence, the surrounding circumstances and the probabilities of the case, it is our finding that the charge of trafficking had been proven beyond reasonable doubt against the appellant. For all the reasons above stated, we hold that the conviction is safe and amply supported by the evidence on record. We dismissed the appellant’s appeal and thereby affirmed the conviction and sentence of the High Court.

Dated: 24 May 2018

signed

KAMARDIN BIN HASHIM
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: S. Ravichandran (A. Kanesvaran with him), Messrs Seah Balan Ravi & Co, Unit A, Tingkat 3, Wisma 1 Alliance, No. 1, Lorong Kasawari 4B, Taman Eng Ann, 41150 Klang

For the Respondent: Faizah bte Mohd Salleh, Deputy Public Prosecutor, Attorney General’s Chambers, Putrajaya

Legislation referred to:

Dangerous Drugs Act 1952, First Schedule; Sections 2, 37(d)

Judgments referred to:

Alcontara Ambross Anthony v PP [1996] 1 MLJ 209; [1996] 1 CLJ 705

Gunalan Ramachandran & Ors v PP [2006] 1 CLJ 857

Hoh Bon Tong v PP [2010] 5 CLJ 240

Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169; [1991] 1 CLJ 311

PP v Herlina Purnama Sari [2017] MLRA 499

PP v Koo Pui Fong [1996] 1 SLR® 734

PP v Lee Yit Weng [2011] 9 CLJ 345

PP v Tan Kok An [1996] 1 MLJ 89

PP v Yuvaraj [1968] 1 LNS 115; [1969] 2 MLJ 89

PP v Yuvaraj [1968] 1 MLJ 238

Zainudin bin Raujan v PP [2013] 4 CLJ 21

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