THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 222 ENGLISH

Jorge Crespo Gomez v Public Prosecutor
Suit Number: Criminal Appeal No. B-05(M)-260-06/2016 

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

Criminal law – Whether the trial court had erred in the handling of the presumptions under the Dangerous Drugs Act 1952 – Whether the trial judge had misdirected itself when it failed to draw an adverse inference in favour of the appellant arising from the investigating officer’s failure to investigate crucial elements of the case – Whether there was a failure to provide the appellant with a proper interpreter

JUDGMENT

[1] In the court below, the appellant was convicted and sentenced to suffer the death penalty upon the following charge:

"Bahawa kamu pada 26 Februari 2013 jam lebih kurang 3.30 petang di Karousel F, Aras 3, MTB KLIA, di dalam Daerah Sepang, di dalam Negeri Selangor Darul Ehsan telah memperedarkan dadah berbahaya, iaitu kokain seberat 779 gram dan oleh demikian, 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] Being aggrieved with the said decision, the appellant appealed to this Court. We dismissed the appeal after due consideration of the issues raised. We now proffer our grounds.

The Case For Prosecution

[3] On 26.2.2013, the appellant was seen by SP-5 (Insp. Sherman Jackson) who was on duty at Carousel F, Aras 3, MTB, KLIA, picking up his luggage from Carousel F, appearing suspicious, looking worried and in search of the way out.

[4] SP-5 together with his team then approached the appellant and introduced himself as a police officer to him. The appellant was then taken to the scanning machine.

[5] The appellant was directed to put his luggage and the sling bag he had with him onto the scanning machine. SP-5 was unable to detect any illegal things in the bags.

[6] The appellant was subsequently taken to the Narcotics Office, Aras 3, MTB, KLIA, for further examination.

[7] At the office, SP-5 found nothing illegal in his sling bag.

[8] SP-5 next directed the appellant to open his luggage.

[9] In the luggage, SP-5 found three (3) boxes containing metal cylinders.

[10] In the first box which he marked as ‘N1’ he found 3 cylinders. SP-5 then used a metal cutting equipment to cut each of the three cylinders. In each of the cylinders, SP-5 found a plastic packet containing powdery substance believed to be cocaine. The powdery substance from each of the cylinders were then put into three (3) plastic bags prepared by SP-5. The three cylinders and their respective contents in the plastic bags were marked as ‘N1a’, ‘N1b’ and ‘N1c’ by SP-5.

[11] In the second box (marked ‘N2’ by SP-5), SP-5 found 2 metal cylinders. Upon being cut, SP-5 found each cylinder to contain a plastic packet containing powdery substance believed to be cocaine. The powdery substance from each of the cylinders were put into two (2) plastic bags prepared by SP-5 and the same were marked as ‘N2a’ and ‘N2b’ by SP-5.

[12] In the third box (marked ‘N3’ by SP-5) SP-5 found one (1) metal cylinder, which upon being cut, was found to contain a plastic packet containing powdery substance believed to be cocaine. The powdery substance were put into a plastic bag prepared by SP-5. SP-5 also marked the cylinder and its contents in the plastic bag as ‘N3a’.

[13] SP-5 next lodged a police report pertaining to the arrest of the appellant and the seizure of the said substance vide KLIA Sepang Report No. 2097/13 (exhibit P42).

[14] The appellant and the incriminating exhibits were subsequently taken to the Narcotics Office, IPD Sepang, where SP-5 then handed the same over to the investigating officer, SP-6 (Insp. Paul a/l John) together with the other exhibits and relevant documents seized from the appellant.

[15] On 1.3.2013, the substance suspected to be cocaine were sent to the government chemist, SP-4 (Dr. Vanitha a/p Kunalan). She confirmed the said substance consisted of 779 grammes of cocaine (hereinafter referred to as the ‘said drugs’). Her report is exhibit P27.

[16] SP-4 also testified that cocaine is a dangerous drug listed under the First Schedule of the Dangerous Drugs Act, 1952 (hereinafter referred to as ‘the DDA’).

[17] At the end of the prosecution’s case, the learned judicial commissioner (hereinafter referred to as the ‘trial judge’) found that the prosecution had proven direct or mens rea possession of the impugned drugs against the appellant and since the amount of the drugs exceeded the statutory limit of 40 grammes of cocaine, hence, under s.37(da)(ix) of the DDA, the appellant shall be presumed to be trafficking in the said drugs until the contrary is proved. The appellant was ordered to enter his defence to answer the charge levelled against him.

The Case For The Defence

[18] The appellant gave evidence on oath.

[19] He testified that he came from Caracas, Venezuela.

[20] He said that a Peruvian friend had introduced him to one Solomon, a total stranger, and had met up with the said Solomon in Caracas on 20.2.2013.

[21] Solomon then told him to send some car spare parts to Thailand and in return he (the appellant) would be paid USD 1000.00 for the errand.

[22] The appellant agreed to do the job because he did not have a permanent employment and had financial problem. Solomon further paid for the appellant’s lodging and gave him money for his expenses and food while in Caracas.

[23] The appellant further said that on 23.2.2013, he met Solomon outside the hotel that he was staying. Solomon gave him a brown luggage and a number of flight tickets. He was also told that there were car spare parts inside the luggage which he had to send to Thailand.

[24] After taking the luggage into the hotel, the appellant put his clothings and toiletries inside the said luggage.

[25] The appellant said that he left for Caracas airport on 24.2.2013 and took all the connecting flights starting from Caracas to Panama City, from Panama City to Sao Paulo, Brazil, from Sao Paulo to Dubai and from Dubai to Kuala Lumpur. Upon arrival at KLIA, he was supposed to take a bus to Thailand.

[26] At KLIA, the appellant said that he took the luggage and had wanted to get through the Customs checkpoint when he was approached and then arrested by the police. He was brought to the police office inside the airport. When he reached the office, the police had already opened one cylinder and the police told him there were drugs inside the cylinder. He was further told that there were five (5) cylinders in his luggage. Still, he was further told that they found cocaine in powdery form inside the cylinders.

[27] The appellant claimed that he did not see how the police cut the cylinders and he saw it only when it was already cut into two (2) pieces.

[28] The appellant testified that he did not know there were drugs inside the six (6) cylinders as the cylinders were car spare parts that Solomon had asked him to take to Thailand. He only knew about the drugs when the police cut the cylinders.

[29] The appellant also said that Solomon asked him to bring the spare parts to Malaysia first and then take a bus to Thailand because it was difficult to bring the spare parts to Thailand by flight.

[30] The appellant also tendered his cautioned statement (exhibit D66) to support his oral testimony in Court.

[31] The appellant’s oral testimony is basically a repetition of his statement, D66.

[32] At the end of the defence’s case, the learned trial judge rejected the appellant’s defence of an innocent carrier and further found that the defence is a bare denial of his knowledge and the existence of the drugs in the cylinders. The defence was also an afterthought as the appellant’s version was not put during the prosecution’s case. In addition, the learned trial judge doubted the existence of Solomon and in all probability, he could be a creation of the appellant on account that the appellant did not provide any details or description of Solomon except for the fact that Solomon had requested him to send the spare parts to Thailand for a payment. The defence has not raise a reasonable doubt upon the prosecution’s case and in the final analysis, the prosecution had succeeded in proving its case beyond any reasonable doubt. The appellant was found guilty and convicted as charged under s.39B(1)(a) of the DDA and was correspondingly sentenced to death by hanging.

The Appeal

[33] The following grounds were canvassed by learned counsel:

(i) the learned trial judge had erred in the handling of the presumptions under the DDA;

(ii) the learned trial judge had misdirected himself when he failed to draw an adverse inference in favour of the appellant arising from the investigating officer’s failure to investigate crucial elements of the case; and

(iii) the appellant was not provided with adequate interpreter.

Our Decision

Ground (i) - handling of the presumptions

[34] Learned counsel brought our attention to the following findings of the learned trial judge at the end of the prosecution’s case evinced at pp. 19 to 21 of his grounds of judgment (Jilid 1, Rekod Rayuan (‘RR’)), reproduced in extensor herein for purposes of clarity:

"24. Having proven custody, control and knowledge of the impugned drugs in P13 against the accused, the prosecution had proven that the accused had possession of the impugned drugs.

25. In the alternative, the prosecution had also utilised the presumption of knowledge under section 37(d) DDA against the accused who was found to have had in custody or under his control P13 containing dangerous drugs in the metal cylinders. Therefore, the accused was until the contrary is proved, shall be deemed to have been in possession and to have known the nature of such drugs. With the aid of this presumption, the prosecution had proven that the accused had possession of the impugned drugs and knew the nature of such drugs.

TRAFFICKING

26. As the prosecution had proven direct or mens rea possession of the impugned drugs against the accused, and since the amount of the drugs exceeded the statutory limit of 40 grammes of cocaine under section 37(da)(ix) DDA, until the contrary is proved, the accused shall be presumed to be trafficking in the said drugs.

27. Even without utilising section 37(da) DDA presumption, the prosecution having proven positive or mens rea possession, was able to prove that the accused was carrying or transporting the impugned drugs which is trafficking as define under section 2, DDA. In the instant case, the accused was carrying or transporting the impugned drugs in P13 from Sao Paulo, Brazil to KLIA, Malaysia which was an overt act on the part of the accused.

28. In the alternative, since the prosecution had proven that the accused has in his custody or control of P13 which contained the impugned drugs, the presumption that the accused was deemed to have been in possession of such drug and to have known the nature of such drug under section 39(d) DDA was invoked. With that one presumption only, the prosecution is able to resort to section 2 DDA to prove direct trafficking of carrying or transporting the impugned drugs”.

[35] Learned counsel further submitted that the learned trial judge had repeated the same convoluted exercise at the end of the defence’s case as stated in paras. 62 and 63, p. 39, Jilid 1, RR, where the learned trial judge had found that the appellant had failed to rebut the presumption under s.37(da) of the DDA that was invoked against him and had also failed to rebut the presumption under s.37(d) of the same Act of which both the presumptions were invoked in the alternative against him.

[36] Learned counsel also submitted that the learned trial judge had failed to give clear indication under which presumption he had applied, if any, to find that a prima facie case had been made out against the appellant and had equally failed to make a positive finding as to which presumption he had invoked. Even though the learned trial judge had alluded to the applicability of both the presumptions of possession and trafficking under sections 37(d) and 37(da) of the DDA, nevertheless the learned trial judge had considered the applicability of both the presumptions only in the alternative and does not make a definite finding on which of the presumptions that has been invoked/ elected.

[37] Learned counsel further submitted that the aforesaid approach by the learned trial judge is wrong in law and that it is trite that presumptions cannot be invoked in the alternative. Further, the lack of a definitive finding on the presumption invoked is prejudicial to the appellant as the appellant has to rebut both presumptions resulting in a legal burden being imposed on the appellant to rebut such presumptions on the balance of probabilities which, from the defence point of view, is heavier than the burden of casting a reasonable doubt and if the appellant fails to discharge the said legal burden, he will be convicted, even where a reasonable doubt as to his guilt exists. Effectively it would create a situation akin to where double presumption have been invoked. The appellant would have to produce sufficient evidence to prove on the balance of probabilities that he does not have possession and knowledge of the drugs and was not trafficking in the drugs. Hence, it was finally submitted that the learned trial judge had committed a misdirection by way of non-direction rendering the appellant’s conviction unsafe. Learned counsel relied on Seyedalireza Seyedhedayatollah Ehtestamiardestani v PP [2014] 6 MLJ 408 and Mohamad Hanafi bin Mohamad Hashim v PR [2016] 3 MLJ 723, to fortify his submissions.

[38] There can be no doubt that there were alternative findings made by the learned judge in respect of the application of the presumptions relating to possession and trafficking vis-a-vis mens rea (direct) possession and direct trafficking.

[39] However, having scrutinized the learned trial judge’s grounds of judgment in its entirety, we opined that the learned trial judge had indeed found that the prosecution had proved that the appellant was having mens rea possession of the said drugs (as stated in his grounds of judgment in para, 24, p. 19 Jilid 1, RR) and had trafficked in the said drugs by virtue of the invocation of the presumption of trafficking under s.37(da)(ix) of the DDA in view of the weight of the said drugs in his possession (as stated in para. 26 of the same Jilid).

[40] This finding of mens rea possession is very apparent from the fact that the learned trial judge had dwelt at great length upon the factors that he had taken into account to pin down the appellant with mens rea possession of the said drugs. The factors includes, as stated in paras. 19, 20, 21, 22 and 23 of his grounds of judgment at pp. 17, 18 and 19 of Jilid 1, RR-

(i) that the appellant was caught red handed with the luggage exhibit P13 which he was carrying;

(ii) on the handle of exhibit P13 was a check-in bag tag bearing the appellant’s name;

(iii) PW-6’s investigation showed that the appellant had flown on Emirate Airlines from Sao Paulo, Brazil and had arrived at KLIA on 26.2.2013;

(iv) inside the said luggage were three (3) boxes (exhibits P35, P37 and P39) together with the appellant’s personal items;

(v) in the three said boxes were metal cylinders containing the impugned drugs;

(vi) inside the said luggage was a tooth brush with a DNA profile matching the appellant’s blood sample (exhibit P17 is the DNA report prepared by the government chemist, SP-3 (Mohd. Izuan bin Othman));

(vii) the impugned drugs were carefully concealed and hidden in the metal cylinders which were welded completely, and could not be seen with the naked eyes except by using a cutter to cut them to discover the impugned drugs inside them, leading to the inference that the appellant had knowledge of the impugned drugs inside the metal cylinders; and

(viii) the boxes containing the metal cylinders were placed in the said luggage together with other car spare parts, to wit, motor belts (exhibits P59(1-6)); gaskets motor parts (exhibits P6(1-3)) and rubber rolls (exhibits P61(1-11)), obviously intended to give the impression that the appellant was only carrying the boxes with the metal cylinders as part of the motor spare parts that the appellant was carrying. This proved that the appellant was conscious of the impugned drugs inside the metal cylinders and tried to camouflaged them as motor spare parts.

[41] Based upon the above factual evidence, the learned trial judge found, at para. 24 of his grounds of decision, that:

"Having proven custody, control and knowledge of the impugned drugs in P13 against the accused, the prosecution had proven that the accused had possession of the impugned drugs”.

[42] In our view the above said finding is the main thrust of the learned trial judge’s finding in respect of possession of the said drugs. Equally the invocation of the presumption of trafficking under s.37(da)(ix) of the DDA is the main thrust of the learned trial judge’s finding in respect of the element of trafficking in the said drugs based upon the fact that the learned trial judge had taken into account the amount of drugs in the possession of the appellant which exceeded the statutory limit of 40 grammes as proscribed by the said section.

[43] We further surmised that it was only for the sake of completeness that the learned judge had ventured to discuss the alternative findings of the application of both the presumptions of possession and trafficking, which we think is completely unnecessary, bordering on verbosity.

[44] In addition, the use of the word ‘in the alternative’ shows that, far from being confused, the learned trial judge was in fact very well versed with the law relating to possession, trafficking, the presumptions therein, and the circumstances under which how each of the presumption is be invoked.

[45] It is perfectly allowable under the law for the learned trial judge to analyse all the alternatives available to him to determine the manner in which both the elements of possession and trafficking in the said drugs are proven. What can be gauge from the discussions raised by the learned trial judge only goes to show that the facts and evidence stacked against the appellant is very strong and overwhelming and that the prosecution would have, anyway, make out a prima facie case of trafficking against the appellant, which ever approach is adopted. The learned trial judge did not at any time breach the rule against double presumptions by taking into consideration the various alternatives available to him in determining the manner in which the twin elements of possession and trafficking in the said drugs are proven. No one is confused or prejudiced as in the final analysis the learned trial judge, as here, had only made one finding relating to possession of the said drugs, to wit, the appellant was found to have mens rea possession of the said drugs and presumed to have been trafficking in the said drugs under s.37(da)(ix) of the DDA on account of the weight/ amount of the said drugs found in his possession.

[46] The decision of the Federal Court in Raman Kunjiraman v PP [2014] 9 CLJ 915 at para 30, 31 p. 929, was verily on point:

"[30] A careful reading of the judgment of the learned trial judge reveals that the learned judge was fully aware of the danger of breaching the rule of double presumption when he said in no uncertain term that ‘the invocation of s.37(d) preluded the invocation of s.37(da)’. Furthermore, the ratio in Muhammed Hassan v PP [1998] 2 CLJ 170 in effect, only says that, one cannot rely on the presumption of possession under s.37(d) of the Act to invoke a further presumption of trafficking under s.37(da) of the Act. In other words, Muhammed Hassan only prohibits the use of double presumptions under ss.37(d) and 37(da) of the Act. Contrary to the argument of the counsel, there is nothing to prevent the learned trial judge from analysing 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 (emphasis ours).

[31] We observe that the learned judge was considering those alternatives when he considered whether to invoke the presumption under s.37(d) or alternatively under s.37(da) of the Act. There was nothing in the ground of judgment to show that the learned trial judge fell into error by invoking both ss.37(d) and 37(da) as envisaged in Muhammed Hassan (supra). We are satisfied that the application of legal principles to the facts of this case had sufficiently been appreciated, applied, and well ascertained by the learned trial judge”.

Ground (ii) - adverse inference arising from the investigating officer’s failure to investigate crucial elements of the case

[47] Learned counsel submitted that the learned trial judge had committed a misdirection by way of non-direction that had severely prejudiced the appellant and rendered his conviction unsafe when His Lordship failed to find that ‘Alcontara notice’ had been served on the prosecution as the appellant had given his version of the event i.e. in respect of Solomon’s role at the earliest possible opportunity through his cautioned statement (exhibit D66), given about ten days after his arrest.

[48] The learned trial judge had also failed to find that the failure of the I.O (SP-6) to investigate Solomon and numerous other elements in the case was a serious omission warranting appellate interference in favour of the appellant. In his cautioned statement he had revealed that Solomon had given him the luggage P13 to carry to Malaysia on the way to Thailand; he did not have any knowledge of the drugs found in the said luggage and he had been in touch with Solomon with his hand phone. In essence, the appellant’s defence was that Solomon was the real trafficker.

[49] It was argued further that SP-6 had prepare two forms (exhibit P65 (A & B)) on which he recorded the incoming and outgoing phone calls on both the appellant’s hand phones (exhibits P52 and P53). SP-6 had also recorded Solomon’s phone number and also the incoming, outgoing and missed calls from Solomon. In spite of the same, SP-6 had never investigated Solomon. Also, it was not in evidence whether SP-6 had attempted to make any calls to any of Solomon’s number.

[50] Further, although SP-6 said that he had sent exhibits P52 and P53 for forensic examination, he had completely failed to follow through and did not act even though he never received any reply from the Forensic Department. SP-6 had also failed to investigate the SIM cards in the appellant’s hand phone with either Bukit Aman or the telecommunication companies.

[51] According to learned counsel, these failures had greatly prejudiced the appellant and warrants this court’s interference.

[52] The appellant’s cautioned statement (exhibit D66) was recorded on 6.3.2013, about 10 days after his arrest on 26.2.2013. Thus, as stated earlier, learned counsel submitted that the appellant had given his ‘Alcontara notice’ of his defence at this first opportunity wherein he had stated that he had no knowledge of the drugs and that it was given to him by the real trafficker which was his friend, Solomon. And, the learned trial judge had failed to consider the same.

[53] However, we were of the considered view that the first opportunity for the appellant to give notice of his defence must occur at the point of the discovery of the said drugs when the cylinders were cut opened at the office of Bahagian Siasatan Jenayah Narkotik KLIA and not at the stage of the recording of his statement which was made about 10 days after the appellant’s arrest. In PP v Badrulsham b. Baharom [1987] 1 LNS 72, the information given by the accused that the bag containing the drugs was given to him by a certain friend of his was disclosed to the police about two (2) hours after his arrest. The court opined that this disclosure was a belated disclosure entitling the court to reject the same.

[54] The appellant could and should have informed of the existence of Solomon and the role played by him to the arresting officer (SP-5) upon the discovery of the said drugs from the cylinders and not 10 days later after his arrest. This is the most opportune moment for the appellant to tell his versions of the events as SP-5 was the first officer to have accosted him with the drugs. However, the appellant waited until 6.3.2013 to disclose the existence of Solomon and the role played by him. We have no doubt that the said disclosure was a belated disclosure, suggesting concoction-see Teng Howe Sing v PP [2009] 3 CLJ 733 at pp. 749-750.

[55] We were further in agreement with the submissions of the learned Deputy Public Prosecutor (DPP) that only Solomon’s name was mentioned in the appellant’s cautioned statement. No other details about Solomon was provided by the appellant. This would entitled the learned trial judge to disbelieved the appellant-see Teng Howe Sing v PP (supra). The investigating officer is not expected to go on and on endlessly looking for Solomon in the absence of further particulars relevant to his investigation. He could not have investigated the appellant’s caution statement as only Solomon’s name was mentioned without further details.

[56] It is also our considered opinion that the ‘Alcontara notice’ and the ultimate defence that Solomon was the real trafficker and that the appellant was merely an innocent carrier must be qualified by the doctrine of wilful blindness. It is not sufficient for the appellant to merely aver that the said luggage was given to him by Solomon pursuant to an errand, oblivious to the circumstances under which the said errand was tasked upon him. The appellant is least expected to merely pass the buck to Solomon. He is expected, as a prudent man, to critically assess the circumstances and situation before accepting the errand. He is also expected to assess the circumstances under which the errand was tasked upon him. He is also expected to examine with critical eyes the nature of such errand and the items, things, articles or baggage, etc. that become the subject matter of such errand. It is most unbecoming and is not expected of him to blindly accept such errand without question especially so when he is paid a fee and reimbursed for all the other expenses incurred in such errand. Anything short of the same is an act of wilful blindness. He is taken to know the true situation.

[57] As stated by Raus Sharif PCA, (as he then was) in the Federal Court case of PP v Herlina Punama Sari [2017] 1 MLRA 499, wilful blindness would encompassed the following conduct:

"[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 summarized 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 could 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.”

[58] In the case presently before us the appellant obviously did not see it fit to consider the following circumstances-

(i) he was tasked principally to carry motorcar spare parts (metal cylinders) inside the said luggage for Solomon from Caracas, Venezuela, by flight to Malaysia en route to Thailand by bus;

(ii) however, other spare parts, to wit, motor belts, gaskets motor parts and rubber rolls were also placed inside the said luggage;

(iii) he was promised a payment of USD 1000.00 together with all expenses paid for to stay in Caracas and for the multiple flight tickets to land in Malaysia just to carry the six metal cylinders to Thailand;

(iv) looking at the metal cylinders by themselves, they were not worth the trouble and expenses to carry them all the way to Malaysia en route to Thailand, taking two days over a few connecting flights to reach KLIA;

(v) the metal cylinders could easily be sent from Caracas to Thailand by courier without the necessity for the appellant to carry them across half the globe from South America to Thailand; and

(vi) the requirement to stop over in Malaysia before proceeding by bus to Thailand.

[59] Now, what can be inferred from the circumstances under which the appellant is to carry out the errand?

[60] In all the circumstances of the case, we were on all fours with the inference made by the learned trial judge where at p. 36, para 57, Jilid 1 RR, His Lordship inferred:

"57... Hence the only inference reduced from the suspicious circumstances stated above is that the accused knew what he was carrying in the metal cylinders which were the impugned drugs. In addition the accused was guilty of wilful blindness by not enquiring from Solomon as to why these metal cylinders were so precious as to require him to carry them all the way to KLIA. The accused had all the opportunity to pause, think about it and find out, but he did not and did not want to. Hence, the accused by deliberately shutting his eyes to the obvious, because he did not want to know, he was taken to know about the impugned drugs-see Hoh Bon Tong v PP [2010] 5 CLJ 240”.

[61] In such event, the ‘Alcontara notice’ purportedly issued by the appellant through his cautioned statement, exhibit D66, is of no consequence. He cannot hide behind the cloak of his notice that Solomon was the real trafficker and that he was not, when he had deliberately closed his eyes to the obvious because he doesn’t want to know. In the course of the law, he is taken to know.

[62] He must have known that what he had carried inside the cylinders must be very valuable. Otherwise there is no reason why it should be hand delivered all the way from Caracas to Thailand. On the same footing, he must have known why he was paid a hefty sum plus all expenses paid for to stay is Caracas for a simple task of delivering the cylinders to Thailand when it could have been couriered at a much, much reduced cost.

[63] The appellant must also have known that he was not only carrying the cylinders per se but much more to it in breach of the law. Otherwise, there is no necessity to carry the cylinders together with six pieces of motor-belts, three pieces of gasket motor parts and eleven pieces of rubber rolls, all intended to give the impression of the harmlessness of the articles carried by the appellant inside the luggage. It goes a long way to show that the appellant was conscious of the impugned drugs inside the cylinders. He tried to camouflaged them by mixing the cylinders with other motor spare parts.

[64] Hence, it matters not whether Solomon was the real trafficker in view of the appellant’s conduct of deliberately committing acts of wilful blindness. He knew of the impugned drugs that was cunningly hidden inside the cylinders in the luggage and he was heftily paid to carry the said luggage containing the cylinders to Thailand. In such event it makes no difference whether Solomon was the real trafficker. The appellant is equally a trafficker in every sense of the definition as provided by the DDA.

[65] Thus, it is of no consequence that the I.O had failed to investigate Solomon or his phone numbers or other matters incidental to it as complained by learned counsel in his submissions. It did not in anyway, compromised the learned trial judge’s findings that the appellant had mens rea possession of the impugned drugs and was presumed, until the contrary is proved, that he was trafficking in the said drugs under s.37(da)(ix) of the DDA.

[66] In addition, we were with the learned trial judge’s findings that the appellant had neither raised a reasonable doubt upon the finding that he had mens rea possession of the said drugs, nor had on the balance of probabilities, rebutted the presumption that he was trafficking in the said drugs.

Ground (iii) - not provided with adequate interpreter

[67] Learned counsel makes no issue of the adequacy of the interpreter during the prosecution stage of the proceedings.

[68] However, learned counsel brought our attention to p. 59, Jilid 2, RR, whereby after the appellant had answered a few questions in examination in chief, at the defence stage, the Peruvian interpreter (Noor Azrin Zakaria) addressed the Court in respect of the following issue:

"Saya fasih Bahasa Spanish tetapi OKT bercakap Spanish dengan loghat Peru. Sukar untuk saya faham loghat OKT. Pohon jurubahasa yang lebih memahami loghat Peru”.

[69] Grounded upon the same, learned counsel claimed that the appellant was not provided with a proper interpreter.

[70] We opined that this is a non-issue altogether. There was no complaint about the interpreter or the interpretation of the interpreter by any party throughout the entire stage of the prosecution’s case.

[71] During the defence stage, there was also no complaint about the interpreter by the appellant, his counsel or the learned DPP. The complaint, in the earlier stages, came from the interpreter herself who found difficulties in interpreting the Peruvian dialect employed/ uttered by the appellant. She then did the right thing by requesting the Court to provide an interpreter who could better understand the Peruvian dialect.

[72] Thus, the Court responded, at p. 59 of the same Jilid:

"Mahkamah: Akan mendapatkan Jurubahasa Spanish Denya

Kirienko atau Alerto Balanza Martinez untuk kes ini.

Mahkamah: 27.5.2016 (Sambung Bicara)

9.00 pagi

t.t. Tuan Wong Teck Meng”.

[73] The record on 27.5.2016 indicated the following, evinced at p. 60 of the same Jilid:

"Dalam Mahkamah Tinggi Jenayah 5

Di hadapan YA Tuan Wong Teck Meng

Bertarikh 27 Mei 2016

TPR: Puan Masriwani

P/B: Mr. Logan

Interpreter Denya Kirienko as an interpreter for Spanish to English”.

[74] We noted that from thence on, the trial/ proceedings went on smoothly until its final conclusion. There was no complaint of the interpretation or the interpreter itself, from either the appellant, his counsel, the learned DPP or from Denya Kirienko himself. No prejudice was caused to the appellant.

[75] Hence, what is the complaint by learned counsel all about?

[76] We could find none.

Conclusion

[77] We found the conviction of the appellant to be safe. We therefore unanimously dismissed the appellant’s appeal and affirmed the conviction and sentence handed down upon the appellant by the High Court.

Dated: 24th July 2018

AHMADI HAJI ASNAWI
Judge
Court of Appeal, Malaysia

COUNSEL

For the Appellant: Abd. Rashid Ismail together with Ooi Zen Jie, Peguambela & Peguamcara

For the Respondent: Kwan Lisa, Timbalan Pendakwa Raya, Jabatan Peguam Negara, 62100 Putrajaya

Legislation referred to:

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

Judgments referred to:

Mohamad Hanafi bin Mohamad Hashim v PR [2016] 3 MLJ 723

PP v Badrulsham b. Baharom [1987] 1 LNS 72

PP v Herlina Punama Sari [2017] 1 MLRA 499

Raman Kunjiraman v PP [2014] 9 CLJ 915

Seyedalireza Seyedhedayatollah Ehtestamiardestani v PP [2014] 6 MLJ 408

Teng Howe Sing v PP [2009] 3 CLJ 733

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