THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 108 ENGLISH

Christian Nwabunwanne Okoye v Public Prosecutor
Suit Number: Criminal Appeal No. B-05(M)-295-08/2016 (NGA)  

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal

Criminal law – Whether there was a failure on the part of the investigating officer to investigate the alleged real trafficker – Whether the trial judge failed to make specific findings on the elements of possession and trafficking – Whether the trial judge failed to adequately consider the Innocent Carrier defence – Whether the trial judge was wrong to hold appellant guilty of willful blindness

JUDGMENT

Introduction

[1] The appellant, a Nigerian national, was charged and tried in the High Court at Shah Alam with an offence of trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act, 1952 (‘the Act’) and punishable under section 39B(2) of the same Act. The charge reads:

“Bahawa kamu pada 14.3.2012 jam lebih kurang 7.30 malam, bertempat di Kawasan Kaunter Pemeriksaan Kastam, Aras 3, Balai Ketibaan Antarabangsa Kuala Lumpur International Airport, di dalam Daerah Sepang, di dalam Negeri Selangor Darul Ehsan, telah didapati memperedarkan dadah berbahaya iaitu seberat 1169.4 gram Methamphetamine dan dengan itu kamu telah melakukan satu 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, convicted and sentenced to suffer the mandatory death penalty by the learned High Court Judge (‘learned trial judge’).

[3] Aggrieved with the conviction and sentence, the appellant appealed to this Court. We heard the appeal on 2.2.2018 and after hearing the parties, we unanimously dismissed the appellant’s appeal. We now furnish our reasons in dismissing the appellant’s appeal.

The Prosecution’s Case

[4] The prosecution’s case was well encapsulated in the learned trial judge’s grounds which may be summarized as follows. On 14.3.2012 at about 7.30 p.m., Detective Sargeant Nor Reshiam bin Kassim (PW2) with his team of policeman from the Narcotics Investigation Division, Kuala Lumpur International Airport (‘KLIA’) were observing passengers who had arrived from Egypt to KLIA in the Carousel H area of the International Arrival Hall, Level 3, Main Terminal, KLIA, Sepang.

[5] While on duty there, PW2 spotted the appellant pulling his roller bag heading towards the customs examination counter in a suspicious manner that is walking in an awkward manner stopping now and then and was looking to the left and right. PW2 then approached the appellant and identified himself as a policeman by showing his authority card and requested the appellant to show his passport.

[6] After ascertaining that the appellant’s identity as Christian Nwabunwanne Okoye, from Nigeria as evinced from the passport (P10), PW2 instructed the appellant to have his roller bag scanned at the customs scanning machine. When the roller bag was scanned, there was no suspicious image revealed on the monitor. PW2 then directed the appellant to bring his roller bag (P9) to the Narcotics Investigation Division’s Office at Level 3 of the KLIA for detailed examination. PW2 and his team of policeman escorted the appellant to the said office.

[7] When they were all in that office, PW2 conducted a physical examination on the appellant but found nothing incriminating. PW2 then in the presence of the appellant and the police team, conducted physical examination of P9, a “Swiss Polo” brand which had baggage tag MS 457207 (P9A) in the name of Okoye Christian and which was not locked.

[8] After opening P9, PW2 took out the clothings and started examining the bag. PW2 pressed his fingers on the hard layer cover of the base of the bag and he could feel there was something underneath it. PW2 then pried open the hard cover of the bag by using knife and screw driver. After the hard cover was opened, PW2 found a plastic packet wrapped with carbon paper and was bound by yellow cello tape. PW2 then made a small cut on the plastic packet (P41) and observed that there were powdery crystal substances suspected to be dangerous drugs. Wherefore, the appellant was immediately arrested. The appellant and the exhibits recovered were later handed over by PW2 to the investigating officer, Inspector Eddy Amin bin Husin Alla (PW5).

[9] The said plastic packet (P41) and the contents in it was later sent to the Chemistry Department Petaling Jaya for analysis and received by the Chemist, Suhana binti Ismail (PW4). PW4 confirmed upon analysis that the said plastic packet (P41) was found to contain 1169.4 grammes of Methamphetamine. SP4 also confirmed that Methamphetamine is a dangerous drug listed under the First Schedule of the Act.

Findings at the end of the prosecution case

[10] The learned trial judge had consider and accepted the testimony of PW4 on the drugs analysis undertaken by the witness. The learned trial judge held that the evidence of PW4 was not inherently incredible and the prosecution had proven that the drugs seized were the type, nature and weight as testified by PW4 in her oral testimony and as well as in her report (P39).

[11] As for the element of possession, the learned trial judge held that there was overwhelming evidence proving that the appellant had custody and control of the impugned drugs as the appellant was caught red handed carrying the bag, P9 in KLIA with the drugs were found hidden under the hard cover of the said bag. When the appellant was apprehended and arrested together with P9, he was all alone. P9 was checked in under the appellant’s name and had a luggage tag (P9A) under his name. Furthermore, it was established through the scientific officer, Abdul Hail bin Ahmad Tarmizi (PW3) that the DNA of the appellant was found on a pair of shoes and a pair of short pants found in P9 to prove that the appellant had physical connection with P9.

[12] Having found that the appellant had custody or control of the P9 containing the impugned drugs brilliantly concealed under the hard cover of the base of the said bag, the learned trial judge invoked statutory presumption under section 37(d) of the Act that the appellant deemed to have in possession of the impugned drugs and to have known the nature of such drugs until the contrary is proved. Therefore, the learned trial judge found that the prosecution had proven that the appellant had possession of the impugned drugs.

[13] As for the element of trafficking, since the appellant was transporting or carrying the drugs from Kano, Cairo by Egypt Air to KLIA as evinced from the Boarding Pass (P11), the passport (P10), the flight itinerary (P13), the baggage tag (P9A) and the tag (P12) recovered from the appellant, the learned trial judge found that the prosecution had proven direct trafficking as defined under section 2 of the Act for “trafficking”.

[14] After being satisfied that all the elements of the charge had been established, the learned trial judge found that the prosecution had proven a prima facie case against the appellant. Thus, the appellant was called upon to enter his defence.

The Defence

[15] The appellant elected to give evidence under oath. The appellant called one witness, Inspector Amrin bin Mohamad Arif (SD2) who recorded the appellant’s cautioned statement (D43), to testify for him. The evidence of the appellant was recorded by the learned trial judge with great detail, as follows:

“The appellant was a businessman in Nigeria before coming to Malaysia. He came to Malaysia to buy computer parts which were cheaper after being informed by his friend whom he met in a church in Nigeria. The appellant said that he met his friend Chika in the church and he knew Chika for about six months. Chika whose full name was Chukwuka Dibia told the appellant that he had came to Malaysia many times to buy computer parts. The appellant then discussed with Chika about the computer business and Chika suggested that the appellant come to Malaysia to obtain the computer parts. According to the appellant, computer parts in Nigeria were expensive and there were lots of fake products unlike in Malaysia which was much cheaper.

The appellant left Nigeria for Malaysia on 12.3.2012 and arrived in Malaysia on 13.3.2012.

The appellant carried three small bags to Kano airport, Nigeria and did not check in the bags. Chika who was travelling with the appellant was carrying two big bags. At Kano airport, Chika asked the appellant to transfer his things into one of Chika’s big bags as the journey to Malaysia was too far and the appellant could lose his bags during transit. Chika told the appellant he had the experience of travelling and that their flight from Nigeria would transit at Cairo, Egypt where their bags would be transferred to another flight to Malaysia. The appellant upon listening to the advice from his wife agreed to transfer all his belongings into one big bag of Chika’s at the Kano airport, Nigeria before check in. Before the appellant transferred his belongings into the big bag, Chika opened it and took some of his clothes and transferred them into another bag. The appellant said he did not check the bag because his belongings were mixed together with Chika’s belongings in the bag. The appellant then checked in the bag given by Chika to him under his name (appellant) when he wanted to board the flight. The appellant’s three small bags were given to his wife.

The appellant travelled together with Chika to Malaysia and they had to make two transits in Cairo Egypt and Bangkok, Thailand before landing in KLIA.

When the appellant arrived at KLIA, Chika complained that he had a stomach problem and that he wanted to go to the toilet. But before passing the immigration the appellant bought a sim card and Chika took down the phone number and asked the appellant to wait as he wanted to go to the toilet.

The appellant then waited for Chika for about 15 to 20 minutes but Chika did not appear. The appellant started looking for Chika in the toilets. Then Chika called the appellant on the phone and told the appellant that he was still in the toilet and told the appellant to collect his bag and wait for him outside the airport at the taxi stand. The appellant then took his bag and as he was coming out from the immigration, the customs officers scanned his bag and checked its contents. The appellant was then taken by the customs officers to the office where they used a plier to cut open the bag and brought out something from the bag and told him it was drugs. The appellant told them that he did not know about it and had never seen the drugs with his own eyes. He said he told the customs officers that someone gave him the bag and that he had arrived together with him at KLIA.

The appellant told them the name of the person who travelled with him to KLIA and when the customs officers asked the appellant where he was, the appellant told them he was in the toilet. They told him that they would track and arrest the said person.

The appellant also said he gave the customs officer Chika’s telephone number. The appellant testified that he gave a statement to the police which was tendered as D43 by the defence.”.

[16] DW2 gave evidence that he recorded the appellant’s statement on 16.3.2012 and identified the statement as D43. DW2 said that he spoke to the appellant in English and then recorded it in Bahasa Malaysia. DW2 said he translated himself the statement given by the appellant from English to Bahasa Malaysia. SD2 and the appellant signed on the bottom left of D43 after the appellant satisfied with it. In D43, SD2 said that the appellant only told him that Chika met the appellant at Aminu Kano Airport. The appellant did not tell DW2 that Chika come together with the appellant to Malaysia. DW2 also said that the appellant did not gave any details about Chika.

[17] After considering the defence, the learned trial judge found that the appellant had not succeeded in raising a reasonable doubt on the prosecution’s case. The defence put up by the appellant was that he was an innocent carrier without knowledge of the drugs hidden in the bag P9. From the appellant’s defence and his cautioned statement (D43), the appellant put the blamed on his friend, Chika for his predicament. The crux of the appellant’s defence was duly considered by the learned trial judge in his grounds.

[18] Relying on Hoh Bon Tong PP [2010] 5 CLJ 240, the learned trial judge rejected the appellant’s defence of an innocent carrier and found that the appellant was guilty of wilful blindness for shutting his eyes to the obvious. The learned trial judge as well found that the appellant had failed to rebut the statutory presumption of knowledge of the nature of the drug under section 37(d) of the Act invoked earlier by the learned trial judge on a balance of probabilities. The learned trial judge found that there was overwhelming evidence that the appellant had possession and knew he was carrying the impugned drugs for the purpose of trafficking.

[19] The appellant was thus convicted and sentenced to the mandatory death penalty as provided under section 39B(2) of the Act. Hence the appeal before us.

The Appeal

[20] Before us, learned counsel for the appellant canvased the following three (3) grounds of appeal, namely:

(a) Failure by the investigating officer (PW5) to investigate Chika who was the real trafficker;

(b) Failure by the learned trial judge to make a specific findings on the elements of possession and trafficking; and

(c) Failure by the learned trial judge to adequately consider the appellant’s defence of an innocent carrier without knowledge and in holding that the appellant was guilty of wilful blindness.

Our Deliberation and Decision

[21] In regard to the first ground of appeal, learned counsel complaint was that the PW5 did not investigate the person named Chika either from the manifest or from the sim card confiscated by the police from the appellant. This, the learned counsel argued had prejudiced the appellant as Chika is the real trafficker of the impugned drugs. The learned counsel relied on this Court earlier decision in Ghasem Gharezadehsharbiani Hassan PP [2014] 5 MLJ 433 and Rahmani Ali Mohamad PP [2014] 6 MLJ 525.

[22] Learned Deputy Public Prosecutor (‘learned DPP’) argued before us that the purported Alcontara Notice given by the appellant bereft of any details or particulars thus is not an effective Alcontara Notice. There were no details of Chika or his phone numbers given by the appellant either to the PW2 or PW5 to facilitate any meaningful investigation.

[23] We had the opportunity to perused the appeal record. We agreed with the learned DPP that nowhere particulars of Chika been furnished by the appellant either during the investigation or in D43. Therefore no effective Alcontara Notice given. PW5 gave explanation on why no meaningful investigation against this person Chika, at page 23 of the Appeal Record Volume 2:

“Saya tidak dimaklumkan secara terperinci berkenaan dengan Chika seperti di mana Chika tinggal, nama penuh dan passport Chika dan nombor telefon Chika. Saya tidak siasat dekedua-dua nombor telefon kerana OKT mengatakan semua dokumen peribadi yang dirampas miliknya.”.

[24] We agreed with the learned DPP that the two cases relied by the learned counsel had been overruled by the Federal Court. Therefore, the principle decided in the two cases are no longer a good law.

[25] This issue had been considered by the learned trial judge in his grounds at pages 35 to 36 of the Appeal Record Volume 1, which we reproduce as follows:

“53. Finally, on the character of Chika, PW5 was not informed of any personal details of Chika for him to conduct any further investigations on this character. The accused also did not provide the said details to the police in D43 or in his oral evidence given in the court. Thus this court doubts whether the character of Chika ever existed. Without the necessary personal details of Chika, PW5 should not be blamed for not conducting investigations on Chika.

54. Therefore, based on my evaluation of the accused’s evidence where I find that the accused had knowledge of the drugs hidden in the bag and was not an innocent carrier of the drugs, considered in the totality of the evidence adduced by the prosecution, the defence was not able to raise a reasonable doubt on the prosecution’s case.”.

[26] We did not find any error on the part of the learned trial judge on his above said finding.

[27] We turn next to the second ground raised by the learned counsel for the appellant that the learned trial judge had failed to make a specific findings on the element of possession and trafficking. The learned counsel argued that the learned trial judge had erred in law when he found that the appellant had mens rea possession and at the same time invoked the presumption under section 37(d) of the Act.

[28] With respect, we disagree with the learned counsel argument and submission. We noted from the grounds of the learned trial judge that His Lordship had clearly made the finding that the presumption under section 37(d) of the Act was invoked as the appellant was in custody and control of the roller bag (P9). We can’t find anywhere in the judgment of the learned trial judge that he made finding of mens rea possession against the appellant. We reproduce the finding of the learned trial judge at page 20 of the Appeal Record Volume 1, as follows:

“23. Hence, this court having found that the accused had custody or control of the roller bag containing drugs concealed under the hard cover of the base of the said bag, section 37(d) Dangerous Drugs Act 1952 was invoked and the accused shall be deemed to have in possession of such drugs and to have known the nature of such drugs until the contrary is proved. The prosecution therefore had proven that the accused had possession of the impugned drug Methamphetamine.

24. With regard to the third ingredient of trafficking since the accused was transporting or carrying the drugs, the prosecution had proven direct trafficking as defined under section 2 of the Dangerous Drugs Act 1952 for “trafficking”. [emphasis added]

[29] Now we come to the third and the final ground of appeal posited by learned counsel. It was argued by learned counsel that the learned trial judge did not adequately consider the appellant’s defence thereby resulting in the appellant’s conviction. Learned counsel submitted that the learned trial judge had failed to acknowledge the existence of a person named Chika who passed the bag (P9) to the appellant. Learned counsel further submitted that the learned trial judge had erred in law when he applied the doctrine of wilful blindness against the appellant in this case.

[30] On appraisal of the grounds of judgment of the learned trial judge, we disagree with the learned counsel submission as devoid of any merit. We had carefully scrutinise the whole evidence and facts relating to this case and we agreed with the learned trial judge in coming to his decision that the appellant is not an innocent carrier and the doctrine of wilful blindness applied in this case. We also found that there was no error in law or misdirection on the part of the learned trial judge’s appreciation of the evidence with regards to his findings that Chika was a fictitious character and not a real person.

[31] In his judgment at pages 31 to 34 of the Appeal Record Volume 1, the learned trial judge explained the reason why he disbelieved the appellant’s defence with regards to the existence of Chika. The learned trial judge explained:

“48. The accused had testified that he only knew Chika recently in the church, about six months in his oral evidence or three months in his police statement D43. For such a short period of acquaintance with Chika, the accused was able to take the risk and place his trust on Chika by carrying Chika’s bag in exchange of his own small bags. The explanation given by the accused that he should use Chika’s bag because of the two transits of his flight to KLIA may result in the loss of the accused’s own small bags is not an acceptable reason. This court is of the firm view that the accused must have carried Chika’s bag for a purpose and the there is more to it than meets the eye as no reasonable person would do it for a recent acquaintance. The accused claimed to be a businessman dealing in clothings and now interested in the computer parts business. He is therefore not a simpleton from an outback village who would be that easily fooled into carrying the bag from someone whom he just recently befriended. This court is of the considered view that the accused knew what he was carrying in the said bag that is drugs. The accused’s suspicious conduct which was apparent when he approached the customs examination counter can be construed as his consciousness of what he was carrying in his bag. His conduct as observed by PW2 remained unrebutted as the accused did not at all give an explanation in his evidence about it. Thus, the accused must have knowledge of the drugs in the said bag.

49. Next, the accused was guilty of wilful blindness for not checking the bag before agreeing to carry it for Chika. He merely took a casual look at the bag when it was opened for him to transfer his clothings into it. He had the opportunity to check the bag at Kano airport before the flight but did not although the accused was suspicious about carrying Chika’s bag in the first place. He had deliberately shut his eyes to the suspicious circumstances as stated above, and in the result he was taken to know what he was carrying in the roller bag as wilful blindness is equivalent to actual knowledge. If the accused had checked the interior of the bag with his hands, he would most probably be able to feel there was something abnormal beneath the inner cover of the bag just like PW2 did when he examined the bag. In Hoh Bon Tong v. PP [2010] 5 CLJ 240 the principle of wilful blindness means; “if a person deliberately ‘shuts his eyes’ to the obvious, because he, ‘doesn’t want to know’, he is taken to know”.

50. The story of the accused that he was sourcing for computer parts in Malaysia for his computer business which he had just started is merely a red herring in this court’s considered view. Inside the roller bag that the accused carried there was not an iota of evidence which relates to any computer business. There were no documents of pamphlets on computers found in his bag. There was not even a list of computer items that the accused sought to source and buy from Malaysia. The accused also did not explain what computer parts that he was interested in and was looking for to buy here. Furthermore, the accused only had USD1,000.00, RM242.00 and 7,420 Naira with him which is insufficient to source for computers parts when compared to the expenses involved for the flight from Nigeria to Malaysia and the distance travelled by the accused. The question posed is; “Why did the accused go through such extent and expense but only brought along such a small amount of money for his so called computer business of sourcing for computer parts here?”. The accused also did not have any credit cards with him when he was arrested. This fact further proved that he did not have any further funds to pay for his intended purchase of computer parts.”.

[32] At pages 34 to 36 of the Appeal Record Volume 1, the learned trial judge further explained why he rejected the appellant’s defence:

“51. In the accused’s oral evidence given in the court, he claimed that Chika travelled with him from Kano airport, Nigeria to KLIA. However, this fact was not consistent with his statement D43 given to DW2 on 16.3.2012 which was two days after his arrest. In D43, the accused only mentioned that Chika met him at Kano airport where Chika asked the accused to carry the bag. The accused did not state in D43 that the accused travelled with him to KLIA. DW2 had also confirmed that the accused did not tell him that Chika came together with him to Malaysia. Furthermore, the accused’s version that Chika went to the toilet in KLIA and had told the accused to proceed to the customs counter and meet him outside KLIA was also not told to DW2, nor recorded in D43.

52. This court’s finding on this point is that Chika travelled with the accused to KLIA and had gone to the toilet in KLIA was a fabrication as it was not mentioned in D43. If that fact was true, the accused would have reported it in D43 at the earliest possible opportunity. Thus, this piece of oral evidence given by the accused in the court is an afterthought. In fact, the existence of Chika in KLIA could have been easily proven by the defence by tendering the relevant flight manifest involved.

53. Finally, on the character of Chika, PW5 was not informed of any personal details of Chika for him to conduct any further investigations on this character. The accused also did not provide the said details to the police in D43 or in his oral evidence given in the court. Thus this court doubts whether the character of Chika ever existed. Without the necessary personal details of Chika, PW5 should not be blamed for not conducting investigations on Chika.

54. Therefore, based on my evaluation of the accused’s evidence where I find that the accused had knowledge of the drugs hidden in the bag and was not an innocent carrier of the drugs, considered in the totality of the evidence adduced by the prosecution, the defence was not able to raise a reasonable doubt on the prosecution’s case.”.

Conclusion

[33] We were satisfied that the learned trial judge had not misdirected himself in any way to occasion an error either on the law or the facts to warrant appellate intervention.

[34] Having regard to the totality of the evidence, the surrounding circumstances and the probabilities of the case, it is our unanimous finding that the charge had been proven beyond reasonable doubt against the appellant.

[35] For all the reasons above stated, we hold that the conviction is safe and amply supported by cogent and overwhelming evidence on record. Therefore, the appellant’s appeal is dismissed and the conviction and sentence of the High Court is hereby affirmed.

Dated: 30 March 2018

signed

KAMARDIN BIN HASHIM
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: Lee Teong Hooi, Messrs. Lee Tan & Associates, No. 86, Jalan SS20/11, Damansara Utama, 47400 Petaling Jaya, Selangor

For the Respondent: Tengku Intan Suraya bte Tengku Ismail, Deputy Public Prosecutor, Attorney General’s Chambers, Appellate and Trial Division, Putrajaya

Legislation referred to:

Dangerous Drugs Act 1952, First Schedule and Sections 2, 37(d), 39B(1)(a), 39B(2)

Judgments referred to:

Ghasem Gharezadehsharbiani Hassan v PP [2014] 5 MLJ 433

Hoh Bon Tong v PP [2010] 5 CLJ 240

Rahmani Ali Mohamad v PP [2014] 6 MLJ 525

Notice: The Promoters of Malaysian Judgments acknowledge the permission granted by the relevant official/ original source for the reproduction of the above/ attached materials. You shall not reproduce the above/ attached materials in whole or in part without the prior written consent of the Promoters and/or the original/ official source. Neither the Promoters nor the official/ original source will be liable for any loss, injury, claim, liability, or damage caused directly, indirectly or incidentally to errors in or omissions from the above/ attached materials. The Promoters and the official/ original source also disclaim and exclude all liabilities in respect of anything done or omitted to be done in reliance upon the whole or any part of the above/attached materials. The access to, and the use of, Malaysian Judgments and contents herein are subject to the Terms of Use.