THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 223 ENGLISH

Ekene Collins Isaac v Public Prosecutor
Suit Number: Criminal Appeal No. B-05(M)-22-01/2016 

Criminal law – Trafficking in dangerous drugs – Conviction – Mandatory death sentence – Appeal

Criminal law – Whether the trial court was wrong to find that the appellant had knowledge of the drugs – Whether the defence had succeeded to raise a reasonable doubt against the finding of actual possession – Whether the trial court had failed to adequately evaluate the effect of the lack of investigation by the investigating officer on the phone numbers given by the appellant in his cautioned statement – Whether the trial court was right to find that insufficient Alcontara notice had been given by the appellant to shift the burden of proof to the prosecution – Whether there was any appealable error or misdirection on the part of the trial court

JUDGMENT

Introduction

[1] This is the appellant’s appeal, a Nigerian national, who has been convicted and sentenced to death for committing an offence under s.39B(1)(a) of the Dangerous Drugs Act, 1952 (‘the Act’) by the High Court at Shah Alam on 28.12.2015. The charge against him reads as follows:

“Bahawa kamu pada 3 Mac 2012 lebih kurang jam 7.20 pagi hingga 5 Mac 2012 lebih kurang jam 1.00 petang di tandas Wad 6C, Hospital Serdang, Jalan Puchong, di dalam daerah Kajang, dalam negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 915.6 gram, dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”

The case for the prosecution

[2] The appellant was a passenger on board of The Emirates’ flight number “EK342” from Dubai, arriving at KLIA at about 1.00 a.m on 3.3.2012. While exiting the arrival hall of the airport’s terminal, he carried with him one luggage and the scan on the luggage revealed nothing suspicious. However, SP4 (Jamarul Azhar bin Jamaludin), the customs officer on duty at the scanning machine, observed the appellant’s nervous demeanor of repeatedly looking over his shoulder with sweat developing over his forehead. SP4 carried out a body inspection on the appellant by touching his stomach and found it a bit hard. The appellant was consequently taken to the office of Cawangan Pemeriksaan Penumpang1 (‘CPP1’) at the airport for a body scanning. The scanning revealed the presence of foreign objects inside the appellant’s stomach.

[3] The appellant was subsequently brought to Serdang Hospital where he was warded, and had on four separate occasions over a period of time as stated in the charge i.e. from 3.3.2012 at about 7.20 am until 1.00 pm on 5.3.2012, excreted a total number of 81 capsules (marked as exhibits P6(A1-A81)) containing an accumulated total of 915.6 grams of Methamphetamine (‘the drugs’) as found by the chemist, SP-12 (Zulkefli bin Mohd. Edin). He confirmed that Methamphetamine is one of the dangerous drugs listed under the First Schedule of the Act.

[4] At the end of the prosecution’s case, the learned trial judge found as follows:

(i) based on the evidence relating to the handling and marking of the capsules from the time they were recovered from the appellant’s excrement to the time they were sent to the chemist before finally being produced in court, there was no doubt about the identity of the drugs;

(ii) based on the fact that the drugs were excreted by the appellant, he, therefore, had actual possession of the drugs;

(iii) based on the large number of the capsules, the drugs were definitely not for his personal consumption; and

(iv) the appellant had committed an act of direct trafficking under section 2 of the Act.

[5] Accordingly, the appellant was called to enter his defence on the charge preferred against him.

The case for the defence

[6] The appellant gave a sworn testimony and called one witness (SD2-Mohamad Fesan bin Zakaria), a Senior Security Officer at Digi Telecommunication company.

[7] He is married with 2 kids and worked as a “carwash servant” in Nigeria. In November 2011, due to financial constraint caused by hospital bills incurred when his wife delivered their second child, he approached his friend “Francis” for help. Francis introduced him to “James” who gave him USD 3,000.00. He was asked to meet James again after 2 weeks. In their next meeting on 28.11.2011, James asked him to deliver a chemical substance (“bahan kimia”) to James’s brother “Matthew” who was working with a telecom company in Malaysia. In December 2011, James took him to the Immigration Office to get a passport and he was told that a visa would be obtained in January. He was asked to be ready for departure to Malaysia at any time.

[8] Later in March 2012, he went to James’s house. There were 6 other men in the house. There, he was threatened to swallow the capsules said to contain chemicals or else it would be “pumped through” his anus. He was told that the capsules had to be consumed so that the chemicals would not be exposed to air. James threatened to kill his wife and kids if he resisted. He refused to swallow the capsules. As a consequence, he was given an injection that made him disoriented and unconscious. When he woke up, he felt pain at his anus and inside his stomach. James told him that the chemicals had been pumped through his anus. About 3 hours later, he was taken to Lagos airport. James gave him a passport, flight ticket, hotel booking receipt and USD 2,000.00. James also gave him 2 phone numbers said to belong to Matthew.

[9] Throughout the whole ordeal up until his arrest, he made no attempt to escape solely for the sake of his family’s safety due to the death threat made by James.

[10] After his arrest, he gave a cautioned statement (exhibit D43), which contain substantially similar stories about James, including the 2 phone numbers “016-3931604” and “016-3713670”. Nevertheless, the learned trial judge observed that the story about the death threat and the name Matthew, were conspicuously missing in D43. In the statement, the appellant only said that he was “force [sic] to swallow" the chemicals, and only said about “James brother" without naming him as Matthew.

[11] SD2’s evidence showed that the 2 phone numbers in fact existed. The phone number “016-3931604” was registered under the name “H Salamat" on 7.9.2011 and was deactivated on 18.12.2012. The phone number “016-3713670” was registered under the name “Tessy Cortage Casimero” on 2.5.2009 and was deactivated on 14.1.2014.

[12] However, during the prosecution’s case, the evidence of the investigating officer (SP-13 Muhamad Farhan bin Izhar) indicated that his inquiry with the same telecommunication company showed that the 2 phone numbers were ‘not in the company’s database’ (“tiada dalam pangkalan data").

[13] The learned trial judge disbelieved the defence story and dismissed it as an afterthought and a fabrication. Consequently, the learned trial judge found that the defence had failed to raise any reasonable doubt in the prosecution’s case.

[14] Therefore, the charge against the appellant had been proven beyond any reasonable doubt and accordingly, the appellant was convicted as charged and sentenced to death.

The appeal

[15] The grounds of the appeal may be stated as follows:

(i) the learned trial judge was wrong to find that the appellant had knowledge of the drugs, and that the defence had failed to rebut the same; and

(ii) the learned trial judge had failed to adequately evaluate the effect of the lack of investigation by the investigating officer on the 2 phone numbers given by the appellant in his cautioned statement, exhibit D43.

Ground (i) - knowledge of the drugs

[16] Learned counsel for the appellant submitted that the learned trial judge was wrong to find that the appellant had knowledge of the drugs and the defence had failed to rebut the same vis-a-vis the appellant’s assertion that he was told by James that the capsules contained chemicals; that the capsules were forcefully pumped through his anus while he was unconscious when he refused to voluntarily consume them; and that he was threatened by death to deliver the capsules to James’s brother Matthew, the real trafficker.

[17] Based on the evidence produced at the end of the prosecution’s case, we find no reason to disturb the finding of the learned trial judge that the appellant had actual possession of the drugs. In our view, the fact that the drugs were found in capsules hidden in his stomach were in itself sufficient evidence to impute knowledge against him, that is to say, until and unless otherwise rebutted, the most reasonable inference to be made from the fact is that a person definitely knows the true nature of the foreign objects he or she had consciously let to reside inside his or her stomach, which is not a normal human behavior. To imply otherwise would simply be illogical and go against the ordinary nature of human behavior. In all the circumstances of the case, it is only reasonable to hold that the appellant is taken to know the very nature of the thing(s) perilously hidden inside his stomach.

[18] In addition, we further find that the appellant’s suspicious demeanor as observed by SP4 that led to the discovery of the drugs hidden inside his stomach, constitutes sufficient evidence to infer knowledge of the drugs on the part of the appellant. If the capsules truly contained chemicals that need to be specifically consigned inside human stomach to prevent contact with air, there should be no reason for the appellant to act suspiciously as he did and as a result, gave himself away.

[19] Of course, the learned trial judge had also remarked that in all the circumstances of the case, the presumption of possession and knowledge of the said drugs under s.37(d) of the Act also applied against the appellant, which we think is completely unnecessary. Nevertheless, it is trite that under the law the learned trial judge is allowed to analyze all the alternatives available to her to determine the manner in which both the elements of possession and trafficking in the said drugs are to be proven. Thus, the Federal Court ruled in Raman Kunjiraman v PP [2014] 9 CLJ 915 at para.30 p. 929:

“... Contrary to the argument of the counsel, there is nothing to prevent the learned trial judge from analyzing all the alternatives available to him under the Act. The learned trial judge has not breached the rule of double presumptions by taking into consideration the various alternatives in the reservoir of choices or alternatives available to him to determine the culpability of the appellant. Judges may expatiate on the various alternatives available without the need to incur the obloquy of counsel”.

[20] The issue is whether the defence had succeeded to raise a reasonable doubt against the finding of actual possession i.e. to negate the elements of possession and knowledge of the drugs that were hidden inside the appellant’s stomach.

[21] In this regard, the appellant gave a two-pronged defence. Firstly, by asserting that he was told by James that the capsules contained chemicals, not drugs. Secondly, by asserting that he did not voluntarily consume the capsules but they were forcefully “pumped through” his anus into his stomach while he was unconscious as a consequence of his refusal to swallow the capsules.

[22] The learned trial judge at the end of the defence case made the following findings (at page 42-45, Appeal Record, Volume 1):

“Persoalannya adalah sama ada OKT telah berjaya menimbulkan satu keraguan yang munasabah terhadap kes pihak pendakwaan.

Seperti yang saya sebut tadi, kes pembelaan OKT adalah tentang seorang lelaki bernama James di mana OKT menceritakan bahawa James ini adalah dalang yang memaksa OKT membawa kapsul-kapsul ke Malaysia untuk diserahkan kepada adik James iaitu Matthew.

Saya dapati selain daripada keterangan bersumpah OKT, tidak ada apa-apa keterangan yang membuktikan bahawa James ini wujud. Berdasarkan keterangan OKT, saya bersetuju dengan TPR bahawa perkara yang dibangkitkan oleh pembelaan yang bersifat afterthought kerana ia tidak pernah dibangkitkan oleh pihak pembelaan semasa kes pendakwaan dan juga di dalam rakaman beramaran OKT (D43). OKT mengatakan bahawa nama adik kepada James adalah Matthew. Nama ini langsung tidak timbul di dalam D43 dan juga semasa pemeriksaan balas terhadap mana-mana saksi pendakwaan terutamanya Pegawai Penyiasat SP13. OKT mengatakan bahawa James dan 6 lagi lelaki telah mengugut OKT untuk memasukkan kapsul-kapsul ke dalam badannya dengan mengatakan bahawa mereka akan bunuh isteri dan kedua-dua anak OKT serta OKT sekali. Perkara ini juga tidak timbul di dalam D43 dan juga semasa pemeriksaan balas terhadap mana-mana saksi pendakwaan terutamanya Pegawai Penyiasat SP13.

Saya juga bersetuju dengan Timbalan Pendakwa Raya bahawa OKT menyatakan bahawa semua yang diceritakan oleh beliau sewaktu memberi keterangan bersumpah telah dimaklumkan kepada pegawai yang merakam percakapan OKT namun ianya tidak direkodkan kerana pegawai tersebut memberitahu bahawa OKT hanya perlu menjawab soalan yang ditanyakan oleh pegawai tersebut. Perkara ini tidak pernah ditimbulkan sewaktu kes pendakwaan terutamanya sewaktu pemeriksaan balas terhadap Pegawai Penyiasat SP13.

Selain daripada itu, saya dapati pembelaan OKT di Mahkamah adalah berlandaskan kepada fakta bahawa OKT telah diugut dengan ugutan bunuh untuk membawa chemical ke Malaysia dalam bentuk kapsul-kapsul yang dipam masuk melalui duburnya. Walau bagaimanapun, dengan meneliti eksibit P43 [sic] (yang merupakan keterangan pembelaan terawal OKT) secara keseluruhan, apa yang OKT lalui adalah beliau hanya dipaksa menelan chemical tersebut dan bukannya diugut dengan ugutan bunuh sekiranya beliau enggan membawa chemical tersebut ke Malaysia.

...

Selain itu, sekiranya OKT diugut dengan ugutan bunuh, adalah tidak masuk akal langsung untuk James selaku orang yang membuat ugutan bunuh untuk memberikan wang sebanyak USD 2000 kepada OKT selepas mengugut OKT.

Secara keseluruhannya, setelah mendengar keterangan OKT dan juga apa yang diceritakan di dalam D43, saya berpendapat jalan cerita OKT sewaktu beliau memberi keterangan bersumpah adalah bersifat rekaan semata-mata dan sukar dipercayai. Selain itu juga, keterangan bersumpah OKT adalah amat bercanggahan dengan keterangan pembelaan terawal yang diberikan oleh OKT di dalam D43 di mana mengikut D43 jelas menunjukkan bahawa OKT hanya dipaksa menelan kapsul-kapsul tersebut namun rela membawa kapsul tersebut ke Malaysia on the promise that he will be handsomely rewarded."

[23] Apparently, the learned trial judge was not convinced with the defence story and proceeded to dismiss it outright as mere afterthought and fabrication.

[24] Having gone through the evidence ourselves, we find no reason to disagree with the finding of the learned trial judge. We find it very hard to believe that the capsules had been forced into the appellant’s stomach in such manner and under such circumstances as described by him, for reasons as follows.

[25] Other than the reasons given by the learned trial judge which we fully agreed to, we are of the view that, if indeed the appellant was forced and threatened by death to transport the capsules which he was told to contain chemicals, there is absolutely no cogent reason for him to resist James’s order to swallow the capsules and as a consequence, subjected himself through the agony of the capsules being “pumped through” his anus. Similarly, it is utterly incomprehensible for James not to simply find ways to force the capsules through the appellant’s mouth, which is definitely much easier than having to find ways of forcing them through his anus.

[26] Further, it raised the issue of whether it is really possible for the capsules to be “pumped through” his anus? SP11, a general surgeon at Serdang Hospital, when cross-examined whether the capsules “can be inserted through the rectum” answered that they “can be inserted depends on the number” (at page 78, Appeal Records, Volume 2A). However, there was no medical examination performed on the appellant to ascertain if that was truly the case. So the question remains whether it is really possible to insert all those 81 capsules up through his rectum into his stomach that would only come out together with his excrement. The evidential burden is verily upon the appellant to prove that it could be done in such a manner as it was the appellant who had raised it in his defence. The appellant wished the court to believe his version pertaining to the same. Hence, the appellant must prove it pursuant to s.103 of the Evidence Act, 1950. Without sufficient medical evidence to the contrary, we are of the view that such an act, is not ordinarily probable.

[27] For the above reasons, we thus find no reason to disturb the finding of the learned trial judge at the end of the defence case and hereby affirmed the same. In our view, based on the totality of the evidence, the appellant had the requisite knowledge of the drugs found inside his stomach and on account of the same, had failed to raise a reasonable doubt against the finding of actual possession of the said drugs.

[28] Thus, we have no doubt that the appellant on his own volition, had carried and/or transported the capsules which he knew to contain the drugs to Malaysia by concealing them inside his stomach, thus committing an act of drug trafficking, within the definition of s.2 of the Act.

Ground (ii) - failure to investigate the two (2) telephone numbers.

[29] Learned counsel submitted that the learned trial judge had failed to adequately evaluate the effect of the lack of investigation by the investigating officer, SP-13 (Penguasa Kastam Muhamad Farhan Bin Izhar) on the 2 phone numbers given by the appellant in his cautioned statement (exhibit D43) said to belong to James’s brother, thus resulting in the learned trial judge’s failure to find that the prosecution had failed to rebut the defence version that James and Matthew are the real traffickers.

[30] Effectively, the issue raised by the learned counsel concerned with what is now commonly known as ‘Alcontara notice’ which, if sufficiently given by an accused person during the course of an investigation, would shift the evidential burden to the prosecution to rebut the same.

[31] The learned DPP countered that the appellant had failed to give a sufficient notice for an effective investigation of both James and Mattew to be carried by SP13 for want of further particulars.

[32] SP13’s evidence relating to this issue can be found at pages 142 and 146-147 of the Appeal Record, Volume 2B. A perusal of his evidence would reveal that he had made an enquiry with a telecommunication company called “Digi” via an email and he had received a reply from the company indicating that the numbers are ‘not in the company’s database’ (“tiada dalam pangkalan data”). SP13 did not conduct any further investigation into the matter.

[33] The learned trial judge had, however, considered the existence of the said phone numbers given by the appellant in D43 and the manner of SP13’s investigation in the following manner at the end of the prosecution’s case (at page 32, Appeal Record, Volume 1):

“E. Siasatan SP13

Mahkamah ini telah dirujuk kepada D43 percakapan amaran OKT di mana SP13 dikatakan tidak menyiasat kedua-dua nombor telefon kononnya milik abang kepada orang yang memasukkan kapsul ke dalam badan OKT. Saya dapati selain dari dua nombor telefon yang diberikan, tiada apa-apa maklumat lain yang diberikan oleh OKT di dalam D43 berkenaan dengan pemilik nombor-nombor telefon tersebut seperti nama, warganegara, alamat tempat tinggal dan nombor pasport pemilik nombor-nombor telefon. Saya dapati adalah sukar bagi Pegawai Penyiasat untuk membuat siasatan lanjut selain membuat penyiasatan dengan pihak Telco.”

[34] Apparently, the learned trial judge found that there was insufficient information given by the appellant other than the phone numbers, and thus placed no blame on SP13 on his failure to conduct further investigation other than relying on the information received from the telecommunication company. Pursuant thereto, the learned trial judge had not shifted the burden to the prosecution to rebut the defence’s version that James’s brother, as the owner of the phone numbers, was the real trafficker.

[35] This Court in Phiri Mailesi (Zambian) v PP [2013] 5 MLJ 780, through Hamid Sultan bin Abu Backer JCA, had this to say:

“It is pertinent to note that the ‘Alcontara Notice’ must have sufficient particulars in the right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story or version. It must also be given at the earliest opportunity at the material time of the arrest or at least upon counsel taking instruction from the accused to conduct its defence. In addition the defence’s version should be put at the prosecution stage and the story must be maintained at the defence stage. These will be a duty placed on the judge even at the prosecution stage to positively evaluate the story of the accused relating to ‘Alcontara Notice’ before evaluating the prosecution case and applying the maximum evaluation as Alcontara case places the onus on the prosecution to rebut or sufficiently explain that they have discharged that onus. In the instant case evidence will show that the defence has not given an ‘Alcontara Notice’ in the right perspective”.

[36] Thus, the issue is whether the learned trial judge was right to find that insufficient ‘Alcontara notice’ had been given by the appellant to shift the burden to the prosecution.

[37] Based on the evidence adduced, we are most inclined to agree with the finding of the learned trial judge that by providing only the phone numbers said to belong to James’s brother, the appellant had in fact failed to give a sufficient notice for any meaningful investigation to be carried out by SP13 in order to rebut the defence version put through D43 that the drugs were intended to be delivered to James’s brother as the real trafficker and that the appellant was merely an innocent carrier.

[38] Further, based on the finding that the appellant’s defence was nothing more than an afterthought and fabrication, the learned trial judge had dismissed the existence of James and his brother Matthew as fictitious characters. These are factual matters within the domain of the trial judge. Hence, and for reasons that we have had deliberated earlier in the first ground of the appeal, we have no reason to interfere with the learned trial judge’s finding and thus affirmed the same.

The conclusion

[39] To conclude, we find no appealable error or misdirection on the part of the learned trial judge with regards to the issues raised in the grounds of appeal that warrants our interference. We, thus, find that there is no merit in the appeal. Based on the totality of the evidence, we are satisfied that the prosecution has proven the charge against the appellant beyond any reasonable doubt.

[40] Accordingly, the appeal is dismissed and the conviction and sentence by the learned trial judge are affirmed.

Dated: 24th July, 2018

AHMADI HAJI ASNAWI
Judge
Court of Appeal, Malaysia

COUNSEL

For the Appellant: Lee Teong Hui, Tetuan Lee Tan & Associates, Peguambela & Peguamcara

For the Respondent: Nurshafini Bt. Mustafha, Timbalan Pendakwa Raya, Jabatan Peguam Negara, 62100 Putrajaya

Legislation referred to:

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

Evidence Act 1950, Section 103

Judgments referred to:

Phiri Mailesi (Zambian) v PP [2013] 5 MLJ 780

Raman Kunjiraman v PP [2014] 9 CLJ 915

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