THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 4 ENGLISH

Hendra Kozama v Public Prosecutor
Suit Number: Criminal Appeal No. B-05(M)-379-10/2016 

Criminal Law – Trafficking in dangerous drugs - Dangerous Drugs Act 1952 – Mandatory death sentence – Appeal

Criminal law – Evidence – Whether the appellant had physical custody and control of the bag that contained the impugned drugs at the material time – Whether the luggage tags of the impugned bags were inadmissible on the ground of the hearsay rule – Whether the evidence on the DNA profile inadmissible as the person who extracted the blood specimen of the appellant was not called as a witness – Whether the evidence pertaining to the test-fitting of clothes on the appellant admissible as a caution under section 37A (now Section 37B) of the Dangerous Drugs Act 1952 was not administered before the test-fitting – Whether the evidence of the chemist inadmissible on the ground of hearsay evidence as the person who actually carried out the test was not called as a witness

Criminal law – Criminal procedure – Whether the written statement of the investigation officer inadmissible – Whether the written statement fulfills the requirement for a declaration under section 402B(2)(b) of the Criminal Procedure Code

Whether the statutory presumption under section 37(d) of the of the Dangerous Drugs Act 1952 was correctly invoked by the trial judge to hold that the appellant had possession of the impugned drugs – Whether the trial judge had adequately considered the Doctrine of willful blindness and the innocent carrier defence put up by the appellant

JUDGMENT

Introduction

[1] The appellant, an Indonesian national, was charged 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:

“Bahawa kamu pada 21 Januari 2013, lebih kurang jam 1.30 pagi di Cawangan Pemeriksaan Penumpang 2 (CPP2), Terminal Pengangkutan Tambang Murah (LCCT), Lapangan Terbang Antarabangsa Kuala Lumpur, di dalam daerah Sepang, di dalam Negeri Selangor Darul Ehsan, telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 3022 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.”

[2] At the end of the trial, the appellant was found guilty, convicted and sentenced to suffer the mandatory death penalty by the learned trial Judge.

[3] Aggrieved, the appellant appealed to this Court against his conviction and sentence. We heard the appeal on 24.11.2017 and we dismissed the appellant’s appeal. We now give 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 21.1.2013 at around 1.15 am, Customs Officer, Alias Bin Mat Yusof (PW7) was on observation duty in the passengers’ examination branch at the Low Cost Carrier Terminal (LCCT), Kuala Lumpur International Airport (KLIA), Sepang, Selangor Darul Ehsan. PW7 who was manning a scanning machine No.5 (MP5) had stopped the appellant to scan his luggage bag.

[5] Upon scanning the appellant’s luggage bag (P6), PW7 noticed a suspicious green images appearing on the monitor of the MP5. PW7 informed the same to his colleague, Haris Bin Abdul Rahman (PW8). PW8 conducted a physical examination over the contents of P6 which revealed that it only contained clothes and no prohibited item was discovered.

[6] The appellant was instructed to empty the contents of P6. After the contents of P6 was emptied, PW7 and PW8 conducted another scanning of P6. Even without the contents, the second scanning revealed that the green-coloured images still remained. PW8 then instructed the appellant to put all the contents back into P6. The appellant and P6 with the contents inside were then brought to an examination room for detailed examination. PW8 then informed the investigating officer, Sazali Bin Unos (PW9) about the matter.

[7] According to PW8, while waiting for the arrival of PW9, the appellant and all the exhibits were under his (PW8) and PW7’s custody and control. The detailed examination of P6 was started on the arrival of PW9, which is about one hour later. PW8 conducted the detailed examination in the presence of the appellant and witnessed by PW7, PW9, a photographer, one Amir Bin Mohd Paiman (PW4). Upon detailed examination, PW8 discovered three (3) packages (P18, P19 and P20) concealed beneath the black-coloured PVC liner sticked to the bottom of P6.

[8] The said three packages were later sent to the Chemist, Suhana Binti Ismail (PW5) for analysis. PW5 confirmed upon analysis that the three packages contained 3,022 grams of Methamphetamine, subject-matter to the charge. PW5 also confirmed that Methamphetamine is a dangerous drugs listed under the First Schedule of the Act.

Findings at the end of the prosecution’s case

[9] The learned trial Judge had considered and accepted the testimony of PW5 on the drugs analysis undertaken by the witness. The learned trial Judge concluded that there was no defect in PW5’s analysis and there was no serious challenge by the defence on the identity and weight of the impugned drugs. The learned trial Judge found that there was no break in the chain of evidence regarding the drugs exhibits, produced and identified by the prosecution’s witnesses in court.

[10] As for the element of possession, the learned trial Judge accepted the evidence of PW7, PW8 and PW9 that the appellant was alone at that time when he was detained together with P6. Based on the fact that P6 had the luggage tag (P6M) with serial numbers which matches with the luggage tag recovered from the appellant (P6L) and that the clothes in P6 fitted the appellant and had the appellant’s DNA on them, the learned trial Judge found that the appellant had custody and control of the luggage P6 and the drugs found in it.

[11] From the quantity and the manner the impugned drugs were concealed beneath the lining of P6 and further covered with PVC layer, the learned trial Judge inferred that the appellant had knowledge of the impugned drugs concealed in P6.

[12] As for the element of trafficking, the learned trial Judge found that the appellant was concealing, carrying, transporting and importing the drugs from Chennai, India to Kuala Lumpur and these acts falls under the definition of trafficking in Section 2 of the Act.

[13] Being satisfied that all the elements of the charge had been established, the learned trial Judge 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 preferred charge.

The Defence

[14] The appellant elected to give evidence under oath. In his evidence, the appellant testified that he came from Medan, Indonesia. Sometimes in January 2013 he met his cousin’s sister, Veronica at his mother’s house in Medan. Veronica had heard that he had been to India. Veronica offered him to carry golden cloth (Sari) from India into Malaysia. Veronica told him that her boyfriend, Emma was running a business of bringing in golden cloth into Malaysia from India and asked whether he was interested. Veronica told him that he would be paid for the task, but Veronica did not tell him how much he would be paid.

[15] The appellant further stated that Veronica took him to Malaysia on 15.1.2013 via Firefly flight No. FY3433 from Medan to Subang Airport. He was seated at seat No.16A, whereas Veronica was at seat No.16B. The appellant tendered the flight ticket as exhibit D35.

[16] In Malaysia they stayed in Emma’s house at Vista Millennium Condominium at Puchong where they met with Veronica’s boyfriend, Emma. Emma and Veronica offered him to go to India to bring in the golden cloth into Malaysia, where he agreed.

[17] Before his flight to India, the appellant was asked by Veronica to stay at Hotel 99, Puchong. Veronica handed over to him the Airasia flight ticket to India (D36) and the return flight ticket on Air India (D37), on the same night while they were having dinner at a Nasi Kandar Restaurant next to the Hotel 99. Veronica also gave him a Malaysian telephone sim card together with a Nokia hand phone and a Hotel Chanakya New Delhi’s card. The appellant had saved Veronica phone numbers in the Nokia handphone given to him under the name described as “NEW”.

[18] The appellant flight to Chennai, India was on the 16.1.2013. Upon arrival, he checked in at Chanakya Hotel. He sent SMS to Veronica of his arrival at the hotel and Veronica replied that she will inform him later when and where he will collect the golden cloth. The following day (17.1.2013) he went out to watch movie and sightseeing around New Delhi.

[19] On 19.1.2013, he received an SMS from Veronica asking him to contact a person by the name of John who would hand over the golden cloth to him. He immediately sent a short message to John asking John when he can collect the golden cloth and John replied by asking him to wait. The appellant informed John that he will be leaving for the airport in the early morning of 20.1.2013.

[20] On 20.1.2013, at around 4.00 am, he informed John that he was already on a taxi to the airport. John asked him to stop over at the nearest railway station near Chanakya Hotel. At the said station he met a male African introducing himself as John, and John handed over to him the bag, P6 and informed him that the golden cloths were inside the bag. He then went straight to the Chennai airport without checking the contents of the bag.

[21] The appellant further said that at the airport, the bag P6 was opened and checked by the security person. Then only he realized that there were no golden cloths inside the bag. He found strange about it and sent an SMS to Veronica informing her on the contents of the bag and he received a reply from Veronica that she just stated “tak ada apa” and asked him to board the flight back to Malaysia.

[22] Upon arrival at LCCT, KLIA, he was detained by the Customs Officer. The appellant denied any knowledge of the drugs found in P6 and denied that he was involved in drugs trafficking activities.

Findings at the end of the defence case

[23] After considering the defence version, the learned trial Judge found that the appellant had not succeeded in raising a reasonable doubt on the prosecution’s case. The learned trial Judge found that apart from the names, the appellant was not able to provide any particulars about Veronica, Emma and John. Even though the appellant claimed that Veronica was his cousin, he was unable to give particulars of Veronica except by saying that Veronica’s phone numbers were kept in his hand phone under abbreviation as ‘NEW”. The evidence of the appellant’s father, Lai Tian Sang (SD2) was of not much help to the appellant’s defence.

[24] Relying on the decisions in PP v Abdul Rahman Akif [2007] 4 CLJ 337 and Hoh Bon Tong v PP [2010] 5 CLJ 240, the learned trial Judge rejected the appellant’s defence of no knowledge of the impugned drugs. The learned trial Judge further rejected the appellant’s defence of an innocent carrier and held that the appellant was guilty of willful blindness for shutting his eyes to the obvious. The appellant was thus convicted and sentenced to death. Hence this appeal before us.

The Appeal

[25] Before us, learned counsel for the appellant canvassed the following two broad grounds of appeal:

(a) The prosecution has failed to make out a prima facie case against the appellant based on the following reasons:

(i) the prosecution had failed to prove that the appellant was in physical custody and control over exhibit P6 at the material time;

(ii) there is no evidence which shows that the appellant was aware of the existence of the impugned drugs concealed in P6. Conversely, the conduct of the appellant at the material time was consistent with his innocence and lack of knowledge;

(iii) the luggage tags, exhibits P6L and P6M have no evidential value and inadmissible as they fall foul of the hearsay rule;

(iv) the evidence of the science officer, Abdul Hail Bin Ahmad Tarmizi (PW6) and the report prepared by him, exhibit P29 have no evidential value as the person who extracted the blood specimen (P11 (a)(2) and (3) was not called as a witness by the prosecution;

(v) the evidence of PW9 pertaining to the test-fitting of clothes on the appellant has no evidential value and inadmissible because PW9 did not state specifically from which bag the clothes were recovered and which clothes were tested on the appellant, and there was no evidence from PW9 that he had administered the caution under the then section 37A of the Act (now Section 37B) before conducting the test-fitting on the appellant;

(vi) the evidence of the Chemist, PW5 is not admissible as it was based on hearsay evidence; and

(vii) the witness statement of PW9 is not admissible as the preconditions under section 402B (2)(b) of the Criminal Procedure Code are not satisfied. These, break the chain of evidence regarding the drug exhibits; and

(b) The learned trial Judge had failed to adequately consider the defence of the appellant to hold that there was a reasonable doubt in the prosecution’s case. Learned counsel submitted that the learned trial Judge was wrong:

(i) in holding that the defence of the appellant was an afterthought;

(ii) in holding that the defence of the appellant was a bare denial;

(iii) in holding that the appellant was guilty of willful blindness in rejecting the appellant’s defence of an innocent carrier without knowledge; and

(iv) in not holding in favour of the appellant for failure by the prosecution

- to investigate the veracity of the facts as stated in the appellant’s cautioned statement and to disprove it;

- to investigate the appellant’s mobile phone regarding the real traffickers, Veronica and John;

- to investigate the character of Veronica via letter exhibit D34 which requested the prosecution to verify with Firefly Berhad on the existence of Veronica who travelled in the same flight FY 3413 together with the appellant.

Our Decision

[26] On the first issue regarding no physical custody and control of P6 which contains the impugned drugs by the appellant, we found that the learned trial Judge was right in holding that P6 was under the custody and control of the appellant at the material time and that the appellant was caught ‘red-handed’. Even though SP7 and SP8 did not testify that the appellant was ever seen holding or carrying P6 or was in physical custody of the bag, the evidence shown that the appellant was alone at the vicinity of the bag and no one else, and furthermore the luggage tag P6L which was recovered from the appellant bears similar numbers with the luggage tag (P6M) attached to P6. We also found from the records that the appellant did not at anytime protest or raise any objection when PW7 and PW8 asked the appellant to put P6 on the scanning machine. The test-fitting of the clothes found inside P6 was done and found to be fitted well with the appellant. Further more, the appellant’s DNA was found on the clothes recovered from the bag.

[27] From the Appeal Records, we found that the appellant was ‘blowing hot and cold’ on the issue of custody and control of the bag P6. At first, the appellant said that he was asked by Veronica to carry the bag given to him by John. Later the appellant changed his version by saying that he did not carry the bag and the bag he carried is not P6. In his statement (D34) to the prosecution before the trial started which was tendered through his learned counsel, the appellant in the alternative asked the charge against him be reduced to one of possession simpliciter, an offence punishable under Section 39A(2) of the Act. This shows that the appellant is not seriously contesting that he had possession of the bag P6 and the impugned drugs recovered from the same.

[28] On the learned counsel complaint that there was no evidence to show knowledge of the impugned drugs on the part of the appellant due to the dociled conduct of the appellant, we disagree with the suggestion that dociled conduct negates the element of knowledge. We found in this appeal, the learned trial Judge did not rely on direct evidence to fasten the element of knowledge onto the appellant. Instead, the learned trial Judge invoked the presumption under Section 37(d) of the Act for the element of knowledge once custody and control of P6 had been proven by the prosecution against the appellant. We did not find any error on the part of the learned trial Judge on her finding.

[29] Learned counsel relied on Saad Ibrahim v PP [1968] 1 MLJ 158; PP v Salleh Zakaria & Anor [2010] 4 CLJ 671 and Tai Chai Keh v PP [1948-49] MLJ Supp 105 and submitted that there was perfect concealment of the impugned drugs beneath the lining of P6 which could not have aroused the suspicion of the appellant. Learned counsel further argued that these facts coupled with the facts that there was no incriminating conduct such as evidence of hesitation on the part of the appellant and that he was fully co-operative with the Customs Officers throughout the relevant period are consistent with his innocence and his claim of lack of knowledge.

[30] We have considered learned counsel submission and we found no merit in it. It is in our considered view that the act of carrying, transporting etc with well hiden drugs are acts which manifest an intention to traffic the impugned drugs.

[31] As we have alluded to earlier, the learned trial Judge had considered the evidence of the prosecution witnesses in totality before she inferred that the appellant had knowledge of the drugs in P6. As said earlier, we found no error in the approach of the learned trial Judge (see: Ong Ah Chuan v PP [1981] 1 MLJ 64). We found that the statutory presumption under section 37(d) of the Act was correctly invoked by the learned trial Judge to hold that the appellant had possession of the impugned drugs.

[32] In regard to the admissibility of luggage tags P6L and P6M, we disagree with learned counsel’s submission that they were inadmissible as they run foul of the hearsay rule. Learned counsel relied on Sim Tiew Bee v PP [1973] 2 MLJ 200 and Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141. Learned counsel argued that the person who issued the tags must be called as a witness in court, failing which the luggage tags were inadmissible as it was a documentary hearsay evidence. We found support from the latest decision of this court in Ajeng Yulia v PP, Supra, where Tengku Maimun Tuan Mat, JCA opined:

“[33] Relying on the cases of Sim Tiew Bee (supra) and Nahar Singh (supra), learned counsel argued that to rely on the contents of the luggage tag as to connect the luggage tag to the appellant, the person who issued the luggage tag must be called as a witness in court, failing which the luggage tag was inadmissible as it was a documentary hearsay evidence.

[34] We found no merit in this issue. Firstly, we noted that the luggage tag was a computer generated document and if produced in the course of its ordinary use, shall be admissible under section 90A(1) of the Evidence Act 1950. Secondly, while we were mindful of the principle that makers would have to be called to determine the admissibility of a document which was in dispute as regards its existence and authenticity, in our view it defies common sense and logic for the appellant to challenge the existence and authenticity of exhibit P16 when she would have identified the luggage based on the very tag itself. Indeed the appellant was seen by SP3 pulling P9 with the luggage tag P16 on it. And while the appellant denied having knowledge of the drugs concealed in P9, she confirmed that P9 was the same bag that she brought from New Delhi. With or without the luggage tag, the fact remained that P9 belonged to the appellant. The cases of Sim Tiew Bee (supra) and Nahar Singh (supra) were thus of no assistance to the appellant.”.

[33] On the same issue, the learned trial Judge at pages 29 and 30 of the Appeal Record volume 1, had held that:

“Berkenaan dengan tag bagasi pula, saya bersetuju dengan pihak pendakwaan bahawa tag bagasi P6L dan P6M yang dijumpai pada bagasi P6 dan yang dijumpai pada tertuduh masing-masing. Ini disahkan oleh SP8. Berkaitan dengan P6L dan P6M, walaupun ianya tidak disenaraikan pada P26, ini tidak bermakna bahawa kedua-dua item ini bukan daripada barang kes. Ini adalah jelas berdasarkan kepada keterangan SP8. Begitu juga dengan nombor KUL 9767759 yang dinyatakan pada kedua-dua tag tersebut. Saya dapati ianya tertera pada kedua-dua tag tersebut yang boleh dilihat secara nyata dan bukan hearsay evidence. Bagi saya pernyataan ini adalah tidak berasas.".

[34] On the issue of DNA profiles of the appellant developed from swabs taken from a few clothings recovered from P6, we found merit in the learned counsel complaint that there was break in the chain of evidence on the ground that the person (usually a medical doctor) who extracted the blood specimen from the appellant was not called as a witness. Relying on Eng Sin v PP [1974] 2 MLJ 168 and PP v Syed Muhamad Faysal bin Syed Ibrahim [2004] 6 MLJ 303, we agreed that there was break in the chain of evidence in this case for the non-calling of the witness who took and marked the blood sample from the appellant. Therefore, we hold that the prosecution cannot rely on the evidence of the DNA profiling to connect the appellant with the possession of P6, the bag containing the impugned drugs. But, that is not the end of the prosecution’s case as rightly pointed by the learned trial judge that there are other cogent evidence to connect the appellant with the possession of the bag P6. We totally agreed with her on this finding. We also agreed that the appellant was caught red-handed with P6 in his possession. In the circumstances, it is the duty of the appellant to explain (Warner v Metropolitan Police Commissioner [1968] 2 All ER 356).

[35] On the issue of test-fitting of clothes, it was not disputed that SP9 did not administer the requisite caution under the then section 37A of the Act. We agreed with the learned counsel’s submission that the evidence of test-fitting is inadmissible. We see no reason to depart from the decision of Zamani A Rahim JC (as he then was) in PP v Premakumar Balan & Anor [2010] 3 CLJ 736 following Jeffery Tan J (as he then was) in PP v Cheah Ooi Por & Anor [1995] 1 LNS 180, where it was stated:

“[21] In the course of investigations, both the accused were subjected to a test fitting of the clothes found in the respective travelling bags. Interestingly enough, the investigating officer candidly admitted that no caution was administered before the test fitting was carried out.

[22] The act of this demonstration can be equated with a statement, and therefore the safeguards of a statutory caution would apply to cover any admissions or confessions, including actions of the accused tantamount to statement.

[23] In the Court of Appeal case of Y. Jeyamuraly Yesiah v. PP [2007] 5 CLJ 605, a majority decision held that the conduct of the appellant, namely, in picking up a biscuit tin and handing it to SP4 in response of her request to hand over any prohibited item in his custody or under his control amounts to a statement which fall within the contemplation of s. 37A of the Act. The majority decision are of the view that the word “statement” appearing in s. 37A of the Act must be construed as including actions.

[24] The majority decision held at p. 632 as follows:

Thus, we hold that actions such as pointing or nodding or handing over physically an item in response to a question or request are statements within the contemplation of s. 37A of the Act or is tantamount to information received from a person accused of any offence in the custody of a police under s. 27(1) of the Evidence Act 1950 depending upon the circumstances of the case.

[25] Similarly, in the Penang High Court Criminal Trial No: 45-12-95 PP v. Cheah Ooi Por & Anor (unreported). His Lordship Jeffery Tan J (as he then was) at p. 14 of the judgment, in upholding the objection of the defence had this to say:

Defence counsel, however lodged a strong objection to the admission of the evidence-that OKT1 was requested by the investigation officer to try on P160, the pair of trousers with the pagers hanging in the middle hall, and it fitted OKT1-which the prosecution intimated it was proceeding to adduce. It was not in dispute the statutory caution under s. 37A(1)(b) was not read to the accused, but the prosecution however contended that the intended evidence was not a statement within the meaning of s. 37(1) of the Act, and therefore admissible despite the absence of a caution.

However, spoken words by an accused is not the only form of statement envisaged in s. 37A requiring a caution to be read to an accused after his arrest before it can be admitted.

In PP v. Siew Sung [1965] 1 LNS 140, Ong Hock Thye Ag, CJ (as he then was) held as inadmissible, having regard to s. 113 of the CPC (which is in pari materia with proviso (b) to s. 37A(1)), evidence that 2 days after the raid the accused came to the police station and opened a pin table. In Lim Kah Wan v. PP [1985] 2 CLJ 473; [1985] CLJ (Rep) 530, Edgar Joseph Jr J (as he then was) held the nodding of the accused’s head as part of the accused’s verbal statement that led to the discovery of a fact, and hence admissible under s. 27(1) of the Evidence Act (see also Lee Lian & Ors v. PP [1956] 1 LNS 54 where Thompson J (as he then was) held that "statement must be construed as including actions such as pointing out a person.

In the instant case, while the testing on of P160 was not a verbal statement from the accused, yet the message from the act was equally audible, and was a statement envisaged by s. 37A(1) and inadmissible without a prior caution. The prosecution’s application to adduce that evidence was accordingly rejected.

[26] Applying the above principle to the facts in this case, I hold that the test-fitting of the clothes by both accused are action or conduct amounting to statement envisaged in s. 37A(1) and as no prior caution was administered, the conduct of test-fitting were inadmissible.”.

[36] As we have alluded to earlier, there are other evidence to support the learned trial Judge finding of possession. The rejection of the evidence regarding the test-fitting of the clothes at this appellate stage, in our considered view, would not in any way invalidate the finding of the learned trial judge as to possession.

[37] On the issue regarding the evidence of the chemist (SP5), the learned counsel complaint was based on the evidence of SP5 that the result of the GCMS test in the form of chromatogram interpreted by SP5 was obtained from the test carried out by the Assistant Science Officer who was not called as a witness by the prosecution. It was argued that the evidence of SP5 is inadmissible as it is based on hearsay evidence. Learned counsel cited to us the recent decision of this Court in PP v Abuchi Ben James [2015] 8 CLJ 1011, per Tengku Maimun Tuan Mat, JCA. We are of the view that the instant case before us is distinguishable in that the chemist in the case cited had been seriously challenged during cross-examination and the learned trial judge in that case had made certain finding of fact which does not exist in the instant appeal before us.

[38] In the instant appeal, the only challenge by the learned counsel were these:

“S: Setuju dengan saya, ujian GCMS (untuk peringkat GCMS), ianya terbahagi kepada 2 peringkat. Yang pertama adalah ujian GCMS dengan alat dan yang kedua adalah penafsiran kromatogram yang terhasil daripada ujian GCMS.

J: Setuju.

S: Setuju dengan saya, untuk peringkat pertama ujian GCMS, ujian ini djalankan oleh Pembantu Makmal?

J: Bukan Pembantu Makmal, ia adalah Penolong Pegawai Sains.

S: Siapakah Penolong Pegawai Sains yang terlibat dalam ujian dalam kes ini?

J: En. Jeremiah.

S: Penaksiran kromatogram dilakukan oleh puan sendiri?

J: Ya.”.

[39] We are of the view that the chemist (SP5) was not seriously challenged on her analysis and findings as in Abuchi Ben James, supra. We observed that in re-examination, SP5 firmly stated that the procedures of drugs analysis adopted by her were based on the procedures recognized and accepted worldwide. At page 33 of the Appeal Record volume 2A, SP5 said:

“S: Tadi peguam telah bertanya berkenaan dengan method-method ujian yang telah Pn. Suhana lakukan iaitu warna, GCMS, GCFID. Pn.Suhana, boleh beritahu Mahkamah sama ada test-test tersebut diiktiraf ataupun diperakui oleh mana-mana badan ataupun institusi?

J: Ujian yang saya jalankan adalah mengikut kaedah ujian Jabatan Kimia Malaysia dan kaedah ini adalah berdasarkan kaedah ujian yang diiktiraf oleh UNODC iaitu United Nation Office of Drug and Crime.

S: Maksudnya, ketiga-tiga jenis ujian tadi adalah ujian yang tepat untuk menentukan bahawa bahan tersebut dan kuantiti bahan tersebut ialah Methamphetamine?

J: Ya.

S: Peguam juga bertanya berkenaan satu lagi iaitu ujian yang menggunakan GCMS. Dalam keadaan ini, Pn. Suhana menggunakan ujian GCMS. Boleh Pn. Suhana terangkan berkenaan dengan ketepatan ujian daripada GCMS dan satu lagi alat tersebut?

J: Ujian GCMS adalah cukup dan masih efisyen untuk mengesahkan jenis dadah tersebut adalah Methamphetamine.".

[40] We find no appealable error on the part of the learned trial Judge in accepting the evidence of the chemist regarding her testimony on the type and weight of the drugs exhibit in the instant appeal before us. The findings of the learned trial Judge were aptly supported by the fact and the law. The findings of the learned trial Judge at pages 27 and 28 of the Appeal Record volume 1, are as follows:

“Berkenaan hujahan ini, saya dapati SP5 iaitu Ahli Kimia telah menyatakan bahawa dia telah menjalankan kesemua ujian-ujian untuk menentukan berkenaan dengan ekshibit dadah ini. Di mana hasil ujian mendapati bahawa bahan tersebut ialah dadah berbahaya jenis Methamphetamine.

Walaupun ujian GCMS telah dijalankan oleh seorang Penolong Pegawai Sains, ujian ini akan mengeluarkan keputusan dalam bentuk Chromatogram yang mana keputusan itu akan ditafsir oleh SP5. Oleh yang demikian saya berpendapat bahawa hasil ujian tersebut adalah berdasarkan tafsiran yang dibuat oleh SP5.

Lagipun, SP5 dalam keterangannya menyatakan bahawa sepanjang ujian-ujian dijalankan, SP5 sentiasa mengawasi ujian yang dibuat. Oleh itu, adalah dihujahkan bahawa kesemua ujian adalah dilaksanakan oleh SP5. Kegagalan untuk memanggil Pegawai Sains tidak akan mencacatkan kes pihak pendakwaan.

Oleh itu tohmahan peguam bela tidak boleh diterima oleh Mahkamah ini.

Saya merujuk kepada kes Balachandaran v PP [2005] 1 CLJ 85. Saya juga rujuk kepada kes Munusamy v PP [1987] 1 MLJ 492. Berdasarkan kepada kes-kes ini, saya bersetuju dengan Timbalan Pendakwa Raya bahawa hasil ujian yang dijalankan oleh SP5 adalah konklusif dan adalah berdasarkan fakta. Tambahan pula SP5 semasa disoal bahawa method ujian yang diambil adalah yang diiktiraf oleh UNODC. Setiap langkah ujian yang dibuat adalah dipantau dan mengikut piawaian yang telah ditetapkan, Kehadiran Penolong Pegawai Sains tidak akan mengubah atau menjejaskan hasil ujian ini.".

[41] In regard to the issue on the admissibility of the written statement by PW9, learned counsel submitted that the written statement was not in compliance with the conditions prescribed under section 402B(2)(b) of the Criminal Procedure Code (CPC) which provides that:

“402B. Proof by written statement

(1) In any criminal proceedings, a written statement by any person shall, with the consent of the parties to the proceedings and subject to the conditions contained in subsection (2), be admissible as evidence to the like extent as oral evidence to the like effect by that person.

(2) A statement may be tendered in evidence under subsection (1) if-

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief; and

(c) a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings not later than fourteen days before the commencement of the trial unless the parties otherwise agrees.”.

[42] Learned counsel argued that PW9’s witness statement did not contain the mandatory requirement of a declaration that the statement is true to the best knowledge and belief of the PW9 as expressly required under section 402B(2)(b) of the CPC resulting in a break in the chain of evidence of all the relevant exhibits including the drug exhibits. Thus, the appellant conviction cannot stand. Learned counsel relied on this Court two earlier decisions in Mahdi Keramatviyarsagh Khodavirdi v PP [2015] 3 CLJ 336 and Abuchi Ngwoke v PP [2016] 5 CLJ 1; [2016] 2 MLJ 623.

[43] Learned Deputy Public Prosecutor (learned Deputy) on the other hand argued that the two cases cited by learned counsel are readily distinguishable as the court in the two cases did not deal with the effect in law of the oath that the makers of the statements had taken before they tendered their written statements as evidence at the trial. Instead, learned Deputy referred us to two other latest decisions of this Court which had been recently affirmed by the Federal Court on 10.8.2017. The two latest decisions of this Court were the case of Barry Abdoul v PP [2017] 1 LNS 122 and Shanmuganathan Panchavarnam v PP & Another Appeal [2016] 1 LNS 1349. In Shanmuganathan Panchavarnam, supra, Abdul Rahman Sebli, JCA had explained at length the issue raised which we produced in extensso as follows:

"[7] It was not disputed that none of the six written statements contained the declaration in terms of paragraph (b) of section 402B(2). But what was also undisputed was the fact that the makers of the statements were called to give evidence and their written statements were tendered and admitted as part of the prosecution’s evidence without any objection by the defence. There could only be one reason why the appellants did not objected to the admission of the statements, and that was because they had given their consent pursuant to section 402B(1).

[8] The contention by learned counsel for the appellants was that the written statements should not have been admitted in evidence as they were not admissible in evidence for non-compliance with section 402B(2)(b) of the CPC. The law is trite that inadmissible evidence remains inadmissible irrespective of whether it was objected to or otherwise when it was produced as evidence.

[9] It was argued that since the prosecution chose to prove their case by way of written statements pursuant to section 402B, it was mandatory for the written statements to be endorsed with the declaration in terms of paragraph (b) of section 402B(2), failing which the statements could not be used as evidence.

[10] The learned DPP contended otherwise, submitting that compliance with the requirement of paragraph (b) of subsection 402B(2) is only mandatory where no witnesses are called to give evidence in court. It was argued that the failure by the six witnesses to make the declaration in their written statements was a mere irregularity and had been cured by their attendance at the trial and testifying under oath.

[11] If we were to accede to the appellants’ contention, the statements would have to be disregarded. That would leave the prosecution’s case without any leg to stand on because without the written statements no prima facie case would have been established against both appellants and they would have to be acquitted and discharged. The oral testimonies of these witnesses were clearly insufficient to establish the case against both of them.

[12] Having regard to the wordings of section 402B(2)(b), we would have agreed entirely with learned counsel for the appellants if he had qualified his proposition by saying that the mandatory requirement for declaration is only meant for cases where the makers of the statements are not called to give evidence at the trial.

[13] We appreciate that section 402B(2)(b) is clear and unambiguous and should therefore be given a literal interpretation. Interpreted literally, it means that a written statement can only be admitted in evidence if it contains the declaration in terms of paragraph (b). But that does not answer the question whether the declaration is mandatory where the maker of the statement is called to give evidence at the trial.

[14] The view that we take is that it is not, because by being called as a witness at the trial, the maker will invariably affirm to the truth of his written statement. We take this view after taking into account the object behind the requirement for declaration under section 402B(2)(b). Section 17A of the Interpretation Acts 1948 and 1967 is relevant and provides as follows:

“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

[15] This section is in fact a codification of the cardinal rule of statutory interpretation that a statutory provision must be interpreted with a view to give effect to its object rather than to defeat its object. By adopting this approach, we take the view that the construction that will promote the object of section 402B(2)(b) is to give it a meaning that the requirement for declaration is only mandatory where the written statement is used at the trial without calling the maker to give evidence.

[16] The rationale behind the requirement is simple. If evidence in the form of a written statement is to be used against the accused without the maker being called to give evidence to face cross-examination, there has to be some form of assurance that the statement is true. It is for this reason that section 402B(2)(b) makes it compulsory for the maker of the written statement to declare that the statement is true to the best of his knowledge and belief. It is in this sense that learned counsel would be right in his submission.

[17] Such need for a declaration in terms of section 402B(2)(b) is consonant with justice and fair play. It is no different from the requirement to affirm an affidavit for the purpose of a judicial proceedings, except that it is not made before a Commissioner for Oaths.

[18] If the written statement is later found to be false, the maker is liable to be prosecuted for the offence of giving false evidence in a judicial proceedings under section 193 of the Penal Code. So the declaration under section 402B(2)(b) acts as a safeguard against giving false evidence by a person who is not called to give evidence at the trial. That in our view is the true purport of section 402B(2)(b) of the CPC, which is to prevent the admission of false evidence in criminal proceedings.

[19] It is important to appreciate that section 402B is an exception to the hearsay rule. If not for this section, the written statement would be hearsay and therefore inadmissible in evidence. But because of this section, it is admissible without the maker being called to give evidence.

[20] Thus, where the written statement is used at the trial without calling the maker to give evidence, the statement is admissible provided it contains the declaration in terms of paragraph (b) of section 402B(2). But where, as in the present case, the makers of the statements were called to give evidence, the failure to make the declaration would not render the statements inadmissible. By the makers themselves giving evidence, the statements were no longer hearsay, which required the application of the exception to the hearsay rule in order for them to be admissible in evidence.

[21] With due respect to learned counsel, it was incorrect for him to say that the prosecution had chosen to prove its case by way of written statements pursuant to section 402B of the CPC. That would only be true if the prosecution had relied entirely on the written statements to prove its case without calling the makers of the statements to give evidence at the trial.

[22] While it is true that the written statements were subject to the requirement of section 402B(2)(b) of the CPC, the prosecution by calling the makers to give evidence at the trial had adhered in pith and substance to the spirit of section 402B(2)(b), which is to ensure that the statements contained the truth.

[23] It needs to be emphasized that the makers of the written statements had taken oath to speak the truth before tendering the statements as their evidence in court. By taking oath under section 6 of the Oath and Affirmations Act, 1949, they had sworn to tell the truth and to stand by their written statements, which became part of their evidence in court. As we said earlier, they face prosecution for the offence under section 193 of the Penal Code if they were to give false evidence.

[24] Given the serious penal consequences of giving false evidence in a judicial proceedings, we are of the view that the taking of oath before a trial judge fulfills the object and requirement of section 402B(2)(b) of the CPC, that the statement is true to the best of the maker’s knowledge and belief. We venture to say that taking oath before a judge has greater force than making a declaration under section 402B(2)(b), which is not even made before a person authorized bay law to take oath.

[25] For this reason, the fact that the written statements in the present case did not contain the requisite declaration was an omission of no consequence. The oaths that the makers of the statements made before the trial judge had served the purpose for which section 402B(2)(b) was designed to achieve. The omission would of course be fatal if they had not taken oath before giving evidence, for then the statements would be in breach of section 402B(2)(b) and therefore inadmissible in evidence.

[26] It is also important to bear in mind that the makers of the statements were not called solely for the purpose of tendering their written statements. The record shows that after their statements were tendered and marked as evidence, each of them went through the normal process of examination, i.e. examination-in-chief, cross-examination and re-examination. This was certainly not a case where, after tendering their written statements, they left the witness box, waved goodbye to everyone and returned home.

[27] Further, in the course of their examination by both the prosecution and the defence, references were made to their written statements, except where learned counsel for the appellants chose not to ask any question in cross-examination. What this means is that the defence was given every opportunity and every latitude to challenge the makers of the statements on the contents of their written statements.

[28] There is therefore no question that the appellants had been prejudiced or disadvantaged by the failure of the witnesses to state in their written statements their belief that the statements were true to the best of their knowledge and belief. Nor can it be argued that the failure had occasioned a miscarriage of justice.

[29] It is not any and every non-compliance with a statutory requirement that will lead to failure of prosecution. In Wood v. Director of Public Prosecutions [2010] EWHC 1769 (Admin), the English High Court was dealing with section 9(1) and (2) of the Criminal Justice Act 1967 (“the CJA)”) which are couched in the following terms:

“(1) In criminal proceedings, other than committal proceedings ... a written statement by a person shall, if such of the conditions mentioned in the next following subsection as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.

(2) The said conditions are-

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he willingly stated in it anything which he knew to be false or did not believe to be true;

(c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and

(d) none of the other parties or their solicitors, within seven days, from the service of the copy of the statement, serves a notice on the party so proposing objecting to the statement being tendered in evidence under this section ...”

[30] If section 402B(2)(a) and (b) of the CPC were to be juxtaposed with section 9(1) and (2) of the CJA, it will be apparent that the provision is a modified version of its equivalent in the CJA. As can be seen, section 9(2)(a) of the CJA requires the statement to be signed, and section 9(2)(b) requires it to contain a declaration that the statement is true to the best of the maker’s knowledge and belief, much like the requirements of section 402B(2)(a) and (b) of the CPC.

[31] Rule 27.1 of the English Criminal Procedure Rules 2005 ("the CPR”) further requires the written statement to be in a form which includes the signature of the maker. In that case, the copy of the statement that was served on the appellant did not bear the signature of the maker of the statement, in breach of section 9(2) of the CJA and rule 27.1 of the CPR.

[32] The admissibility of that statement was at the heart of the submissions made to the District Judge and to the High Court Judge. The District Judge ruled that although there might have been a technical breach of the requirements of section 9 and rule 27, it in no way prejudiced the appellant and he was entitled to ignore it.

[33] On appeal, this was how Mitting J at paragraphs [13] and [14] dealt with the point:

“[13] I deal now with Mr Ley’s second point. In Paterson v. Director of Public Prosecutions [1990] RTR 329, [1990] Crim LR 651, evidence was given by means of a s. 9 statement which contained a number of defects. Importantly, the statutory declaration did not comply with the statutory conditions, the Divisional Court held that it was inadmissible.

[14] In determining whether or not the erroneous reference to two rather than three pages undermined the validity of the declaration made on the first page, it is necessary to have in mind exactly what Parliament provided that the declaration must contain. The provision is that “the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belier etc”. This statement contained exactly that provision. The fact that it misidentifies the number of pages in the statement is neither here nor there. There is no doubt whatever what statement the declaration referred to. It referred to a statement contained in a document of three pages, each of which was signed by Mr Downing. No one would have any difficulty in ascertaining what statement Mr Downing was making, the truth to which he was certifying. For that simple reason there is no force in Mr Ley’s second point. There would be no good purpose in my remitting the case to the District Judge for him to state a question on that point. It is a bad one.”

(emphasis ours)

[34] The facts are not on all four with the facts of the case before us but the relevance of the case lies in the fact that it dealt with a provision that is almost identical to section 402B of the CPC and in the fact that failure to comply with a statutory requirement was not ruled to be fatal to the prosecution’s case.

[35] By parity of reasoning, the absence in the case before us of the declaration in terms of paragraph (b) of section 402B(2) in the written statements is neither here nor there as the makers of the statement were called to give evidence and they had taken oath to tell the truth. The truth that they swore to tell necessarily included the truth of the contents of their written statements, which they were prepared to defend by facing cross-examination and scrutiny by the court.

[36] Learned counsel for the appellants relied on Mahdi Keramatviyarsagh Khodavirdi v. PP [2015] 3 CLJ 336, a decision of another panel of this court which decided along the line of counsel’s submissions before us. With due respect, the case is readily distinguishable as the court in that case did not deal with the effect in law of the oaths that the makers of the statements had taken before they tendered their written statements as evidence at the trial. The case is therefore of no assistance to the appellants.”.

[44] We had the opportunity to peruse the Appeal Records and we observed that PW9 had taken an oath before tendering his witness statement and was marked by the learned trial Judge as ‘PSP9’ without any objection from the appellant’s learned counsel. We reproduce the relevant notes of proceeding at page 79 of the Appeal Record volume 2A as follows:

“SP9

Nama: SAZALI BIN UNUS

No. K/P: 620810-13-5933

Umur: 53 tahun

Alamat: 250 Lot 1168, Jalan Helang

Semerah Padi Petra Jaya

93050 Kuching, Sarawak

Pekerjaan: Penolong Pengarah Kastam

  Di Bahagian Penguatkuasaan Kastam DiRaja

  Malaysia Sarawak.

(SP9 mengangkat sumpah dan beri keterangan dalam bahasa Kebangsaan).

Pernyataan saksi disediakan.

Pemeriksaan Utama SP9 oleh TPR

1. S: En. Sazali ada menyediakan pernyataan saksi?

J: Ada.

2. S: Adakah ini pernyataan saksi En. Sazali? Sila En. Sazali semak.

J: Betul.

TPR: Boleh saya pohon arahan sama ada saksi perlu membaca (pernyataan saksi) ataupun dikira sebagai diterima?

YA Hakim: En. Choong?

P/bela: Tiada bantahan.

Mahkamah: PSP9 = Pernyataan Saksi SP9.".

[45] We found that the learned trial Judge was correct in accepting the witness statement of PW9 as the evidence-in-chief of the witness as it was duly given under oath. We found the complaint by the learned counsel on this issue was devoid of any merit.

[46] On the final issue, learned counsel complaint was that the learned trial Judge had failed to adequately evaluate the defence of the appellant. Learned counsel argued that the defence of the appellant is not an afterthought and is not a bare denial as found by the learned trial Judge. Learned counsel further argued that the learned trial Judge erred when Her Ladyship decided that the appellant was guilty of wilful blindness in rejecting the appellant defence of innocent carrier. Finally, learned counsel submitted that learned trial Judge erred in not taking into consideration the failure on the part of the customs officers to investigate and to check the veracity of the appellant’s cautioned statement and for the failure to investigate the characters of Veronica and John through their contact numbers found in the appellant’s mobile phone.

[47] 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(R) 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.”.

[48] On the defence of an innocent carrier put up by the appellant, this had been considered by the learned trial Judge in her judgment at pages 43-45 of the Appeal Record volume 1, as follows:

“Mengenai pembelaan tertuduh bahawa beliau tidak tahu bahawa P6 yang dibawanya ada mengandungi dadah ie beliau seorang innocent carrier, saya merujuk kepada kes Hoh Boon Tong v PP [2010] 5 CLJ 240, kes Mahkamah Rayuan yang berbincang mengenai konsep wilful blindness-

“[73] The defence of innocent carrier must necessarily bring into the picture the concept of wilful blindness. And according to Yong Pung How CJ (Singapore) in Public Prosecutor v Hla Win (supra) at p. 438, “the concept of wilful blindness qualifies the requirement of knowledge.” And his Lordship continued further by saying (at the same page)-

As Professsor Glanville Williams aptly remarked in his textbook on Criminal law, at p. 125-

...the strict requirement of knowledge is qualified by the doctrine of wilful blindness. This is meant to deal with those whose philosophy is: ‘Where ignorance is bliss, ‘tis folly to be wise’. To argue away inconvenient truths is a human failing. If a person deliberately ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know’, he is 'taken to know’.

Di dalam kes ini, saya bersetuju dengan Timbalan Pendakwa Raya bahawa tertuduh sengaja menutup mata atau tidak memperdulikan terhadap perkara yang jelas iaitu bagasi yang dibawanya adalah megandungi dadah. Tertuduh kononnya sanggup pergi ke India semata-mata untuk mengambil kain sari sedangkan kain itu boleh pos atau di courier. Tertuduh sanggup terbang sejauh ke India untuk mengambil sari ini. Tertuduh dengan senang mempercayai John dan menerima bagasi yang diberikan oleh John. John ialah seorang yang asing bagi tertuduh. Tertuduh tidak tahu bagaimana untuk berhubung dengan John, tiada alamat dan nombor telefon. Tertuduh tanpa memeriksa bagasi tersebut terus mengambil dan membawa bagasi untuk di check ini. Bagi saya, tertuduh sepatutnya pada ketika ini sudah menanam syak wasangka kepada bagasi yang perlu dibawa itu. Tertuduh juga telah memberi keterangan bahawa semasa di Chennai, bagasi P6 telah diperiksa oleh anggota keselamatan dan tertuduh telah mendapati bahawa tiada kain sari, namun tertuduh masih terus membawa bagasi tersebut.

Keadaan ini jelas menunjukkan tertuduh dengan sengaja menutup mata terhadap keadaan-keadaan persekitaran yang sepatutnya telah menimbulkan syak dan prasangka terhadap beg P6. Justeru itu, tertuduh ialah bukan seorang innocent carrier.

Pendek kata, tertuduh telah wilfully shut his eyes dan ini telah menimbulkan bahawa tertuduh mempunyai pengetahuan berkenaan dengan dadah di dalam beg P6 itu.”.

[49] We agreed with the finding of the learned trial Judge on this issue of wilful blindness and an innocent carrier defence put up by the appellant in this case. We disagreed with the learned counsel contention that the issue was not adequately considered by the learned trial Judge.

[50] In regard to the other point raised by learned counsel about the failure to investigate Veronica, Emma and John, we agreed with the learned Deputy that the prosecution should not be blame 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 successful investigation to be done by the authority (Alcontara Ambross Anthony v PP [1996] 1 MLJ 209); [1996] 1 CLJ 705).

[51] We disagree with the learned counsel’s submission that the failure of the prosecution to disprove material part of the evidence put forward by the appellant has 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 trial Judge had correctly decided that the appellant had failed to discharge the burden lies upon him.

[52] We agreed with the learned trial Judge 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 under section 37(d) of the Act on a balance of probabilities.

Conclusion

[53] 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. We dismissed the appellant’s appeals and we affirmed the decisions of the High Court.

Dated: 4th January 2018.

Signed

KAMARDIN BIN HASHIM
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: Chong Kok Sen (Miss Wong Kah Hung, with him), Messrs Gooi & Azura, No. 12-1 & 14-1 Jalan Serkut, Taman Pertama Cheras, 56100 Kuala Lumpur

For the Respondent: Hanim Bte Mohd Rashid, Deputy Public Prosecutor, Attorney General’s Chambers, Putrajaya

Legislation referred to:

Criminal Procedure Code, Sections 402B, 402B(2)(b)

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

Judgments referred to:

Abuchi Ngwoke v PP [2016] 5 CLJ 1; [2016] 2 MLJ 623

Ajeng Yulia v PP [Court of Appeal; Criminal APpeal No. C-05-68-03/2015]

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

Barry Abdoul v PP [2017] 1 LNS 122

Eng Sin v PP [1974] 2 MLJ 168

Hoh Bon Tong v PP [2010] 5 CLJ 240

Mahdi Keramatviyarsagh Khodavirdi v PP [2015] 3 CLJ 336 

Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141

Ong Ah Chuan v PP [1981] 1 MLJ 64 

PP v Abdul Rahman Akif [2007] 4 CLJ 337

PP v Abuchi Ben James [2015] 8 CLJ 1011

PP v Cheah Ooi Por & Anor [1995] 1 LNS 180

PP v Herlina Purnama Sari [2017] MLRA 499

PP v Koo Pui Fong [1996] 1 SLR(R) 734

PP v Premakumar Balan & Anor [2010] 3 CLJ 736

PP v Salleh Zakaria & Anor [2010] 4 CLJ 671

PP v Syed Muhamad Faysal bin Syed Ibrahim [2004] 6 MLJ 303

PP v Tan Kok An [1996] 1 MLJ 89

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

Saad Ibrahim v PP [1968] 1 MLJ 158 

Shanmuganathan Panchavarnam v PP & Another Appeal [2016] 1 LNS 1349

Sim Tiew Bee v PP [1973] 2 MLJ 200

Tai Chai Keh v PP [1948-49] MLJ Supp 105

Warner v Metropolitan Police Commissioner [1968] 2 All ER 356

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