THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 150 ENGLISH

Kong Rin v Public Prosecutor and Another Appeal
Suit Number: Criminal Appeal Nos. Q-05(M)-194-06/2016 & Q-05(M)-196-06/2016 

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

Criminal law – Defence of an innocent carrier – Whether the appellants aware of the impugned drugs

Criminal law – Possession of drugs – Whether the trial court erred in holding that the first appellant was in possession of the drugs – Whether the trial court failed to properly evaluate the evidence that the backpack seized from the first appellant was unlocked – Whether the first appellant had exclusive custody, control and possession of dangerous drugs found in the unlocked backpack

JUDGMENT

[1] These two appeals arose from a single judgment of the High Court at Sibu who heard the joint trial of the appellants. Both the appellants were convicted and sentenced to death for the offence of trafficking in dangerous drugs. We heard the appeals together and had dismissed the same. Our reasons are set out below.

[2] The charge against the appellant in Appeal No. 194 (“the first appellant”) reads:

“That you, on the 27.11.2013 at about 11.38 am, in front of the exit gate, Arrival Hall, Sibu Airport, in the District of Sibu, in the State of Sarawak, did traffic in dangerous drugs, to wit, 2,222.2 grammes of Methamphetamine and you thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under Section 39B(2) of the same Act.”.

[3] As for the appellant in Appeal No. 196 (“the second appellant”), the charge reads:

“That you, on the 27.11.2013 at about 11.40 am, in front of the exit gate, Arrival Hall, Sibu Airport, in the District of Sibu, in the State of Sarawak, did traffic in dangerous drugs, to wit, 2159.37 grammes of Methamphetamine and you thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under Section 39B(2) of the same Act.”.

The Prosecution’s Case

[4] Briefly, on 27.11.2013, DSP Dennis Anak Bunyam (“PW11”) received information on drug trafficking activities at Sibu Airport, involving foreigners flying from India. Acting on that information, he and his officers proceeded to the Airport. PW11 was told that the flight had landed. He obtained permission to approach the aircraft and saw the employees unloading the luggage of passengers. Some of the luggage were already brought to the luggage carousel.

[5] PW11 conducted the initial search on the remaining luggage and found the said luggage from India. He identified the luggage and proceeded to the carousel. At the carousel area, PW11 waited for the luggage to be unloaded on the carousel and to be claimed by the respective owners. Not long after that, he spotted the first and the second appellants collecting their luggage respectively.

[6] Having spotted the appellants, PW11 signalled to his team members. D/Kpl Rudy Jembun assisted by D/Kpl Melintang Anak Utong (“PW9”) apprehended the first appellant at the exit gate of the Arrival Hall. The second appellant was apprehended by D/Kpl Siena Anak Bakir (“PW12”), assisted by D/Kpl Fareeda Pasa at the same area.

[7] When both the appellants were apprehended by the police, they had with them their respective luggage collected from the carousel. The first appellant had with him a black backpack, while the second appellant had a trolley bag. The luggage tag of the backpack carried the name of the first appellant whilst the luggage tag of the trolley bag bore the name of the second appellant.

[8] A body search was conducted on both the appellants. Nothing incriminating were found on them. However, from the backpack of the first appellant (which was unlocked) and the trolley back of the second appellant, (which was locked and was later unlocked by the second appellant), other than their clothing, the police found crystallized substance suspected to be drugs. The drugs were concealed in a hidden compartment in both the backpack and the trolley bag.

[9] Drugs were also found concealed in two partitions in the second appellant’s handbag and in each sole of 6 pairs of slippers/ sandals as well as in each of the 27 rolls of ribbons found in the second appellant’s bag.

[10] PW11 made the necessary markings on the drugs exhibits before he handed them over to the respective investigating officers, namely Insp. Augustine Gaja (PW15) and Insp. Lee Beng Qui (PW16).

[11] The exhibits were sent to the Chemistry Department for analysis. Upon analysis by the Chemist, Rusyidah binti Abdul Rahim (PW1), she confirmed that the exhibits seized from the first appellant were Methamphetamine weighing cumulatively 2222.2 grammes. The exhibits seized from the second appellant were similarly confirmed by PW1 to be Methamphetamine weighing cumulatively 2159.37 grammes. Methamphetamine is listed under the First Schedule of the Dangerous Drugs Act 1952 (“the Act”).

[12] The clothing found in the backpack and the trolley bag were also sent to the Chemistry Department for DNA analysis. It was confirmed that the DNAs of the first appellant and the second appellant were found on the clothing recovered from their respective luggage.

Findings of the High Court at the end of the prosecution case

[13] The learned judge accepted the evidence of the chemist on the nature and weight of the drugs. He considered the fact that the luggage had the tag in the names of the respective appellant. His Lordship also considered the fact that the appellants were travelling from Chennai to Sibu, having transited in Kuala Lumpur and that upon arrival at Sibu Airport, the appellants were seen claiming the respective luggage at the carousel.

[14] The learned judge found that the prosecution had established that the backpack belonged to the first appellant while the trolley bag belonged to the second appellant. His Lordship further found that the appellants were in possession of the drugs and the reliance by the prosecution on section 37(d) of the Act was proper. As for the element of trafficking, the learned judge invoked section 2 of the Act to find that the appellants were trafficking in the impugned drugs.

[15] Having found that the prosecution had established a prima facie case against the appellants, the learned judge called upon the appellants to enter their defence.

The Defence

[16] The defence of the first appellant, a Cambodian, may be summarized as follows:

(i) the backpack seized from him was bought by his friend, Hean Sombat to replace the first appellant’s old luggage which was damaged in India;

(ii) when he packed his clothes inside the backpack, he did not see nor was he aware of the drugs hidden inside the backpack;

(iii) his air ticket to Kuala Lumpur and to Sibu was bought by Hean Sombat;

(iv) Hean Sombat wanted the first appellant to collect money and stuff from Hean Sombat’s younger brother in Sibu; and

(v) the first appellant’s trip to India was to visit pagoda and while in India, he stayed in a hotel with Hean Sombat.

[17] As for the second appellant, a Vietnamese, she stated that the luggage was given to her while she was in India; that she was asked by her friend named Chi to bring the luggage to Malaysia and upon arrival in Malaysia, she was to take a taxi to the hotel and to wait there. The second appellant had further stated that while in India, she just stayed at the hotel and that she had no knowledge of the drugs found her luggage.

Findings of the High Court at the conclusion of the trial

[18] The learned judge found that the common defence mounted by the appellants was the defence of an innocent carrier. His Lordship rejected the defence of the first appellant for the following reasons:

(i) The first appellant was unable to give any description and specific particulars relating to his friend Hean Sombat, although he stated that he had known Hean Sombat for some time;

(ii) The first appellant never mentioned about Hean Sombat when the drugs were first found in his luggage nor when his statement was recorded;

(iii) The first appellant did not disclose about Hean Sombat to the Magistrate when he was brought for remand;

(iv) The existence of Hean Sombat was never raised by the first appellant until his defence was called;

(v) The first appellant did not know for how long he would be staying in Malaysia, did not know who will pick him up, where to go upon arrival and had no contact number of the person in Malaysia to whom he was supposed to deliver the luggage; and

(vi) The first appellant did not know the name of Hean Sombat’s brother who he was supposed to meet and to collect money and stuff.

[19] The defence of the second appellant that she just brought the luggage that contained the drugs as a favour to a friend was likewise rejected by the learned judge for the following reasons:

(i) The second appellant claimed to be an innocent traveller and she travelled to India and Malaysia allegedly to find a job. Yet she had no luggage with her;

(ii) She claimed that she shared the luggage with a person she claimed to be the friend of her friend but she did not even know the name of her friend’s friend;

(iii) The defence of the second appellant was not put to the prosecution witnesses;

(iv) Despite knowing Chi for some time, the second appellant was not able to give any specific particulars relating to Chi;

(v) The second appellant never mentioned about Chi when the drugs were first found in her luggage, when her statement was recorded nor when she was brought before the Magistrate for remand;

(vi) The second appellant did not know how long she would be in Malaysia or where to go upon arrival. Neither did she know who would pick her up at the airport; and

(vii) The second appellant had no contact number of the person who she was supposed to deliver the luggage.

[20] The learned judge found that the defence of the appellants were highly improbable and not credible and failed to raise any reasonable doubt on the prosecution’s case.

[21] The appellants were thus convicted and sentenced to death, hence the appeals.

The Appeals

[22] The first appellant canvassed only one issue before us, i.e. that the learned judge erred in holding that the first appellant was in possession of the drugs in question. In this regard, the argument raised was that the learned judge erred in not taking into consideration and in failing to evaluate the evidence of the prosecution’s witnesses that the backpack seized from the first appellant was unlocked.

[23] It was the submission of learned counsel for the first appellant that since the backpack was unlocked, the first appellant had no exclusive custody, control and possession of dangerous drugs found in the backpack and that the moment it was checked into the Chennai Airport in India until it finally reached Sibu Airport, the said backpack and its contents could be accessed and tampered with, by anybody.

[24] Learned counsel highlighted the evidence of PW11 and PW9 which essentially disclosed that the drugs were found hidden in the inner part of the backpack which were stitched and that the stitches were “newly sewn” and “messy”.

[25] It was the submission of the first appellant that the reason why the “stitches were messy” was because someone had gained access to the unlocked backpack by unzipping it while the backpack was not in the custody and/or control of the first appellant after it had been checked in at Chennai while in the handling, storage, loading and unloading process during the transit period i.e. during change of flight until it reached Sibu Airport.

[26] For the second appellant, the following issues was raised, which according to learned counsel cast a reasonable doubt on the prosecution’s case:

(i) There was no evidence to show that the drugs were seized from the appellant;

(ii) No photographs were taken to show that the drugs were retrieved from the second appellant’s luggage;

(iii) There was no evidence to show that the sandals or shoes from which some of the drugs were recovered were seized from the second appellant’s luggage;

(iv) The size of the shoes and sandals were bigger than the size of the second appellant’s feet; and

(v) No finger prints were lifted from the packaging containing the drugs.

Our Findings

[27] The sole complaint of the first appellant centers on the fact that the backpack was not locked and nowhere in the grounds of judgment, did his Lordship consider the possibility of others having access to the backpack.

[28] As regards the second appellant, the point canvassed was in relation to the alleged lack of proof to connect the second appellant with the drugs.

[29] Whilst we accept that in relation to the first appellant, the grounds of judgment made no mention of the unlocked backpack, that in itself, in our view, did not vitiate the findings of the learned judge. Quite apart from the first appellant’s version on the access and tampering by others being purely speculative, the whole evidence and circumstances of the case must be considered and not merely the evidence on the unlocked backpack. In Suhaimi Abdul Hamid v PP [2014] 1 LNS 268, Linton Albert JCA said:

“[9] The fact that others have access to the condominium unit and the second bedroom does not necessarily militate against a finding of possession by the appellant as was the case in the instant appeal ...

[10] It is patently clear, therefore, that possession need not be exclusive, a fortiori, access. Hence there is no merit in the appellant’s argument premised on the mere fact that others had access to the second bedroom. Whether there was possession depends on the factual matrix of each given situation. Here, the drugs were found in the room occupied by the appellant and the appellant had admitted to be the owner of all the items in which the drugs were found.”.

[30] At the end of the prosecution’s case, we found no appealable error on the part of the learned judge in his conclusion that the prosecution has established a prima facie case against both the appellants. His Lordship had considered the essential elements of the charge preferred against the appellants, namely (i) that the substance found were dangerous drugs as listed in the Act; (ii) that the appellants were in possession of the said drugs and (iii) that the appellants were trafficking in the said drugs.

[31] The first element had been established through the evidence of the chemist, PW1. There was no challenge on the evidence of PW1 in respect of the nature and the weight of the drugs, which formed the subject matter of the charge against the respective appellant.

[32] As for the second element, the learned judge found that the appellants were in direct possession of the drugs. His Lordship further found that the prosecution’s reliance on section 37(d) of the Act was proper and in order. The learned judge found that the prosecution had established that the backpack belonged to the first appellant and the trolley bag belonged to the second appellant as the bags were tagged with the appellants’ names respectively. Prima facie the appellants had custody and control as well as knowledge of the drugs in their respective luggage. The learned judge cited among others, Zulfikar bin Mustaffah v PP [2001] 1 SLR 633 to support his findings as regards physical control and knowledge of the drugs.

[33] We found no error of law or fact in the learned judge’s findings on the second element of the charge. Through the evidence of the prosecution witnesses that the appellants had themselves collected their luggage at the carousel; that the luggage had the name tag of the respective appellant and that the luggage contained the appellants’ clothing, there was more than sufficient evidence to establish custody and control of the drugs found in the backpack of the first appellant and in the trolley bag and the handbag of the second appellant.

[34] On the third element, we also found no appealable error on the part of the learned judge in concluding that the prosecution had established the element of trafficking. The learned judge applied section 2 of the Act to find that the appellants were trafficking in the impugned drugs. Trafficking as defined in section 2 includes the acts of concealing and carrying. In PP v Herlina Purnama Sari [2017] 1 MLRA 499, Raus Sharif PCA (as his Lordship then was) said:

"[38] ... the proposition that there must be in all cases an overt act in order to constitute trafficking is misconceived. It would be contrary to the definition of trafficking as provided for under s 2 of the Act. ...

[39] We are of the view that whether or not a person is a trafficker within the definition of s 2 of the Act is dependent on the facts and circumstances of a given case. In this case, it is not in dispute that when the respondent was arrested she was carrying the luggage bag which amongst other things contained the impugned drugs. The respondent was apprehended in the act of carrying from one place to another a large amount of dangerous drugs. It is in evidence that the respondent was unaccompanied by any person when she carried the luggage bag. The luggage bag was registered in the respondent’s name when she checked in at the Air Asia check-in counter. The impugned drugs were found hidden in two boxes. We are of the view that the manner in which the impugned drugs were concealed in the luggage bag showed that the respondent knew the existence of the drugs there, and evinced an intention of and careful planning by the respondent to conceal the impugned drugs to avoid and escape detection (PP v Abdul Rahman Akif [2007] 1 MLRA 568 and Teh Hock Leong v PP [2008] 1 MLRA 548).”.

[35] Likewise in the instant appeals. The appellants, when apprehended were carrying the luggage that contained the appellants’ clothing and the impugned drugs. The luggage undoubtedly belonged to the respective appellant. The appellants travelled and had carried the luggage containing the drugs from Chennai to Sibu. The manner the drugs were concealed showed that the appellants knew about the existence of the drugs. We agreed with the learned judge that the prosecution had made out a prima facie case against the appellants and his Lordship was correct to call upon the appellants to enter their defence.

[36] The defence of both the appellants was one of innocent carrier. Having evaluated the defence, the learned judge found that the defence cannot be believed nor accepted and had not cast any reasonable doubt on the prosecution’s case. We agreed.

[37] The common defence of both the appellants was that they had no knowledge of the drugs as the luggage was given by a friend in India to be delivered to someone in Malaysia, yet both the appellants were not able to give particulars of their friend in India and had no particulars of the persons in Malaysia to whom the luggage was to be delivered. Neither was the defence put to the prosecution witnesses. We concurred with the learned judge that the appellants knew they were carrying drugs and that the characters “Chi” and “Hean Sombat” were fictitious. The defence was an afterthought and a concoction.

[38] We found no merits in the issues raised by the second appellant, particularly on photographs and finger print. Given the facts of the instant appeal, where there was no dispute as to the identity of the appellants as the owners of the luggage containing the drugs, the absence of the photographs and finger print was not fatal to the prosecution’s case and would not have any significant impact on the findings of the learned judge (see PP v Mansor Md Rashid & Anor [1997] 1 CLJ 233).

Conclusion

[39] On the totality of the evidence, we found the conviction to be safe. We therefore unanimously dismissed the appeals and we affirmed the conviction and sentence of the High Court.

Dated: 8th May 2018

signed

TENGKU MAIMUN BINTI TUAN MAT
Judge
Court of Appeal

COUNSEL

For the Appellant: Fung Lee Fook, Messrs. Fung Lee Fook Advocates

For the Respondent: Wan Shaharuddin b Wan Ladin, Deputy Public Prosecutor, AG’s Chamber

Legislation referred to:

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

Judgments referred to:

PP v Herlina Purnama Sari [2017] 1 MLRA 499

PP v Mansor Md Rashid & Anor [1997] 1 CLJ 233

Suhaimi Abdul Hamid v PP [2014] 1 LNS 268

Zulfikar bin Mustaffah v PP [2001] 1 SLR 633

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