THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 63 ENGLISH

Oktavius Jerrick Pui v Public Prosecutor
Suit Number: Criminal Appeal No. Q-05(M)-409-11/2016 

Criminal law – Trafficking in dangerous drugs – Offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 – Conviction – Sentencing to death – Appeal

Criminal law – Whether the prosecution had failed to prove the charge beyond reasonable doubt as there had been a break in the chain of evidence with regard to the identity of the exhibits seized – Whether the trial judge had failed to adequately consider the defence of the appellant that he had no knowledge of the drugs found – Defence of innocent carrier – Concept of Wilful blindness

JUDGMENT

[1] The appellant was charged in the High Court at Kuching for an offence under s. 39B of the Dangerous Drugs Act 1952 (“the Act”). The charge read as follows:

"That you, on 17th August 2014 at about 12.15 pm, at the Office of Passengers Examination Unit, Arrival Hall of Kuching International Airport, in the district of Kuching, in the state of Sarawak, trafficked in dangerous drug, weighing a total of 4315.67 grams of Methamphetamine and you thereby committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under section 39B(2) of the same Act."

[2] After a trial, and at the end of the defence case, the appellant was convicted and sentenced to death by the High Court on 20 October 2016. The appellant filed an appeal against that decision to this Court. The appeal was heard on 23 October 2017. At the conclusion of the submissions, we unanimously dismissed the appeal. Our reasons for doing so now follow and shall constitute the judgment of the Court.

The Case for the Prosecution

[3] The prosecution called 14 witnesses to prove the charge against the appellant. The evidence adduced was summarized by the learned Judicial Commissioner (“Judge”) as follows:

“[5] The evidence led by the prosecution is that on 17.8.2014, at about 12.15 pm, the accused flew in from Kuala Lumpur and arrived at Kuching International Airport. The accused was originally flying from New Delhi to Kuala Lumpur via Malaysian Flight No. MH0191 before flying to Kuching vide Malaysian Flight No. MH2504. The accused had intended to return to his home town i.e. Pontianak. At the arrival hall of the Kuching International Airport, the accused was seen pushing a trolley with two luggage bags on it, the big one being Exh. P5 and the smaller one being Exh. P6. It was in these two bags that the drugs were found which were stashed inside the sole of the multiple quantity of women shoes.

[6] Upon seeing the accused pushing the trolley, PW2 (Pauzi Bin Bojeng) then instructed the accused to put his two bags on the roller of the scanning machine which was manned by PW3 (Hairul Bahri Ma'riat). Together with PW2 and PW3, there were two other customs officers present at the arrival hall of the Kuching International Airport namely PW4 (Nur Akmal) and PW5 (Mohd Naslan).

[7] After Exh. P5 and P6 were scanned, PW4 asked the accused whether the bags were his which he admitted by nodding his head. PW4 then asked the accused to open up Exh. P5 first which was pad-locked. The accused took out the key to open up Exh. P5 and found therein were large amount of women shoes. The accused then opened Exh. P6 and found therein were a few other women shoes together with the accused's clothing. When both the bags were opened, PW4 testified that there was a pungent glue smell coming out from the two bags. PW4 took one of the shoes from Exh. P5 and scanned it. Both he and PW3 noticed that there was a suspicious image on the screen of the scanning machine. He took the same shoe and scanned it for the second time which showed the same result. This second scanning was witnessed by PW3, PW4 and PW5.

[8] Having found something suspicious in the two luggage bags Exh. P5 and P6, the accused was then directed to go to the office of Passengers Examination Unit, Kuching International Airport with his belonging. At this office, PW5 opened up one of the shoes inside Exh. P6 and found a brown tape package inside the sole of the shoe. The same glue smell was coming from the shoe. Upon this discovery, PW5 then called up PW11 (Gerry Ho) from the Narcotic Unit of the Customs Department.

[9] When PW11 and his team of customs officers arrived at the scene, he was briefed by PW5 regarding the discovery of the suspicious drug. The accused and the exhibits were handed to him for his further direction. In front of the accused, PW11 conducted a preliminary test on the crystalline substance inside the brown tape package found by PW5 and the result was positive for methamphetamine. Based on this finding, PW11 arrested the accused and lodged a police report on the arrest. The accused and all his belongings were later brought to the Customs Office at Jalan Gedong.

[10] At the Customs Office, PW11 conducted the search on all the bags of the accused including the plastic bag and paper bag [Exhibit P5, P6, P8 and P9]. The list of items found during the search were recorded in Exh. P43 and this was done in front of the accused and signed by him. A total of 46 brown tape packages were found hidden inside the multiple number of women shoes (total of 43 shoes) found inside Exh. P5 and P6. The brown tape packages were marked individually by PW11. The photographs of these brown tape packages can be seen in Exh. P2 (33 to 45) and in Exh. P3 (53 to 172).

[11] The exhibits together with the accused were handed over by PW11 to the Investigating Officer PW14 (Olivia Ak. Alim) at about 9.05 p.m. on the same day i.e. 17.8.2014 and the handing over is reflected in Exh. P62. Upon receipt of all the exhibits, PW14 initialed them one by one according to the search list Exh. P43 and the photographs of the exhibits can be seen in Exh. P3 (1 to 155).

[12] The brown tape packages were put into plastic bags and each plastic bag was then put inside individual envelope labelled as "L1" to "L43" by PW14. These can be seen in Exh. P3 (156 to 209). These envelopes were later put inside a brown box and wrapped with a brown paper marked "L" and sealed with customs security seal by PW14 (Exh. P23). Exh. P23 was kept in PW14's locked cabinet inside her office until it was sent to Chemistry Department for analysis on the 20.8.2014. Exh. P23 was acknowledged receipt by a chemist PW6 (Mohd Riduan Bin Bakhir) as can be seen in Exh. P21. After the analysis was completed, PW6 returned the box (Exh. P23) with the Chemistry Department security seals to PW14 together with the chemist report Exh. P24.”

[4] At the end of the prosecution case, the learned trial Judge found that there was direct evidence that the appellant had physical possession of the drugs. Given the circumstances in which the drugs were carefully concealed in the sole of the women’s shoes which may indicate an intention to avoid detection by the authorities, the learned Judge drew an inference that the appellant had knowledge that what was carried by him were dangerous drugs and that he was therefore in actual possession of the drugs.

[5] Although not expressly stated in the judgment of the learned trial Judge, he appeared to have applied the presumption of trafficking under s. 37(da) of the Act, taking into account the large quantity of methamphetamine recovered which was in excess of the statutory minimum of 50 grams. This appeared to be the case as at the conclusion of the trial, the learned Judge found that the defence had failed to rebut the presumption of trafficking on the balance of probabilities. The learned Judge then found that a prima facie case had been made out against the appellant on the charge. Accordingly, the appellant was ordered to enter his defence.

The Defence Case

[6] The appellant was the sole witness for the defence. His evidence was summarized by the learned trial Judge as follows:

“[50] The accused defence is basically of having no knowledge of the contents of Exh. P5 and P6 when he was asked to carry them by a couple, Frankie and Sani. His defence is premised on these facts. He was invited to attend Frankie and Sani's wedding in India. Upon his return to Pontianak via Kuching he was requested to bring the women shoes inside Exh. P5 and P6 as wedding gifts for Frankie and Sani's friends and relatives in Pontianak. He agreed to the request as he did not suspect of anything amiss until he was caught to carry the drugs at Kuching International Airport when he admitted that he was set up and trapped by Frankie and Sani to do what he did.”

[7] And further on at paragraph 54 of the judgment:

“[54] The accused also said in his defence that he was sent off to the New Delhi Airport by the couple in their car for his return trip. He said he brought along his bag Exh. P6 containing his clothes and personal items. In the car on the way to the New Delhi Airport, he was seated on the front passenger seat while Sani was seated on the back passenger seat while Frankie was on the driver's seat. Somewhere near the airport, Frankie told him to bring another bag Exh. P5 containing multiple quantity of women shoes purportedly as gifts to the couple's friends and relatives in Pontianak. At the same time, few other shoes were also put by Sani into Exh. P6. The accused said he wanted to hand carry that few other shoes but the couple insisted for it to be put in Exh. P5. As a token for his willingness to bring the women shoes inside Exh. P5 and few other women shoes inside Exh. P6, he was given a pair of branded "Gucci" shoes which he also carried with him in a shoebox.”

[8] At the conclusion of the trial, the learned Judge found that the defence had failed to cast a reasonable doubt on the prosecution case that the appellant had actual possession of the drugs. It was also held that the defence had failed to rebut the presumption of trafficking under s. 37 (da) of the Act on the balance of probabilities. The learned Judge also found that the act of ferrying the drugs in question was within the definition of trafficking under s. 2 of the Act. The case against the appellant was held to have been proved beyond reasonable doubt. The appellant was accordingly found guilty, convicted and sentenced to death.

The Instant Appeal

[9] Before us, although the petition of appeal contained 29 grounds, learned counsel for the appellant submitted that he wished to raise nine issues some of which were overlapping and were to be considered together. Some of the grounds raised were abandoned during submissions including the issue of non-compliance of s. 402B of the Criminal Procedure Code (“CPC”) in view of the recent decision by the Federal Court in Rossarin Nuekaew v PP [2017] 8 CLJ 503.

[10] The primary ground of appeal was that the prosecution had failed to prove the charge beyond reasonable doubt as there had been a break in the chain of evidence with regard to the identity of the exhibits seized. It was argued by learned counsel that the trial Judge was in error in failing to find a break in the chain of evidence with reference to the transparent plastic lining inside the brown plastic tape packages (Exh. D6 (1 to 46)). In the chemist report Exhibit P24, in the Record of Appeal, Vol. 3(2), at page 662, it was stated:

Setiap satu sampul surat mengandungi satu (1) plastic lutsinar yang berisi bungkusan plastic yang dibalut dengan tape plastic yang berwarna coklat”. (Translated into English it means - “Each envelop contained 1 transparent plastic which contains a plastic package wrapped with a brown plastic tape.”).

[11] Learned counsel submitted that the chemist PW-6 in his evidence made no mention of the plastic packet inside the brown tape plastic. PW-6, it was claimed, never identified the plastic packets lining the inside of the brown tape packages. It was also asserted that the raiding officer, PW-11, also never identified any plastic packets lining the brown tape packages. It was further contended that the investigating officer PW-14 could not be sure which transparent plastic was being referred to in the chemist report P24.

[12] Relying on the cases of Lim Pah Soon v PP [2013] 6 MLJ 252; PP v Lee Yau Ket [2008] 4 MLJ 223; Kumaraguru & Ors v PP [1994] 1 MLJ 254 and PP v Baddeley Tie Yew Song & Anor and other cases [2014] 9 MLJ 222, it was submitted that there was a doubt as to the identity of the exhibits and there was a strong likelihood that the exhibits seized from the appellant had been tampered with or mixed up with exhibits from other cases.

[13] In this connection, we note that a similar submission was made before the trial Judge who found no break in the chain of evidence. The following is how the learned Judge assessed this issue:

“[48] The marking of the exhibits in Exh. P43, Exh. P22 and Exh. P24 and WS-PW6 are all consistent and they were accounted for by PW6, PW11 and PW14. The defence did not at all challenge the identity of the exhibits during the search until the time when they were sent to the chemist for analysis. In my view what is material here is the contents of the brown tape packages namely the crystalline substances which were found to contain methamphetamine upon analysis and it is for this findings that the accused in the present case was charged with. I therefore find that the exhibits i.e. the 46 brown tape packages were properly handled by the customs officers and there were no break in the chain of evidence. They were the same exhibits seized from the accused. The existence of the transparent plastic lining inside the brown tape packages suggested by the defence was not disputed and admitted by the prosecution and this is reflected in the photograph Exh. P2 (56). The presence of this transparent plastic lining inside the brown tape packages is not highlighted because what really matters for the prosecution is the crystalline substances itself contained in the said brown tape packages.”

[14] After careful scrutiny, we found this submission to be without merit. The exhibits were seized by PW-11 and handed over to PW-14. After the seizure, PW-11 had prepared a search list, Exhibit P43, in which the items seized from the appellant were listed in detail. It is significant that at item 21 of the search list at page 747 of the Record of Appeal, Vol. 3(3), it is recorded as follows:

Bungkusan yang mengandungi Kristal jernih berbalut plastic lutsinar di golong dengan tap plastic berwarna coklat.”

[15] When the exhibits were handed over to the investigating office, PW-14, each of the brown tape packages were marked accordingly and put in 43 envelopes marked as “L1” to “L43”. In envelopes “L1” to “L3”, there were two brown tape packages in each envelope. In the other envelopes, there was one brown tape package. Altogether there were 46 brown tape packages.

[16] Now, PW-14 had prepared these exhibits to be sent to the chemist for analysis. She had prepared a list which was marked as Exhibit P22 which is to be found at pages 656 to 660 of the Record of Appeal, Vol. 3(2). In envelopes “L1” to “L3”, it is recorded as (the relevant part):

“1 bungkusan plastic lutsinar yang mengandungi 2 plastik lutsinar yang digolong dengan tap plastic berwarna coklat masing-masing bertanda ...”

[17] For envelopes “L4” to “L43”, the relevant parts were recorded as such:

“1 bungkusan plastic lutsinar yang mengandungi 1 plastik lutsinar yang digolong dengan tap plastic berwarna coklat masing-masing bertanda ...”

[18] As alluded to earlier, the chemist report P24 also contained the same reference to “satu (1) bungkusan plastic lutsinar yang berisi bungkusan plastic yang dibalut dengan tape plastic yang berwarna coklat”. The chemist PW-6 had indicated in his evidence through his witness statement that he had received the same exhibits from PW-14, namely, the 43 envelopes marked as “L1” to “L43”.

[19] Now, these three documentary exhibits in the form of P43, P22 and P24 were contemporaneous documents and were consistent with each other. Also, PW-14 in her evidence had agreed that inside each of the brown tape packages, there was a translucent white plastic attached to it. There were, in fact, no contradictions with regard to the presence of the transparent plastic lining inside the brown tape packages.

[20] What is lacking, and is now the subject of criticism by the appellant, is perhaps an omission to confirm the presence of this plastic lining by PW- 11 and PW-6 by the prosecution. We are, however, of the view that the exhibits themselves and the contemporaneous documents as mentioned earlier prove conclusively that the exhibits seized from the appellant were the same ones sent to the chemist and produced in court. There was no question of tampering or a mix-up with other exhibits as contended by the appellant. The learned Judge was therefore entitled to hold that there was no break in the chain of evidence.

[21] In this context as well, we have not overlooked the contention by learned counsel for the appellant that there has been a break in the chain of evidence because of the discrepancy in the net weight of the crystalline substance. It was suggested that when the net weight stated in the witness statement of PW-6 is added up, it comes to a figure of 5674.71 whereas in the chemist report P24, it was stated as 5674.96 g. There was thus a difference of 0.25 g.

[22] Now, the chemist PW-6 was never asked if there was such a discrepancy. There was no challenge by the defence. There may have been a logical explanation if at all there was such a discrepancy. In any event, the discrepancy is miniscule. The net weight of the drug methamphetamine was determined by PW-6 to be 4315.67 which formed the subject-matter of the charge. It is trite law that discrepancy in the weight of the drugs alone is insufficient to cast doubt on its identity. There must exist other factors especially in relation to the handling or custody of the drugs which may cast doubt on the drug exhibits being reliable and trustworthy evidence (see Lew Wai Loon v PP [2014] 2 CLJ 649). In the premises, this ground of challenge is without merit.

[23] Also on the same issue as to the identity of the drug exhibits, it was contended that the learned DPP in his opening statement described the contents found in the brown tape package as “crystal powder” whilst PW-6 and PW-11 referred to the same as “crystalline substance” thus causing prejudice to the appellant. In this respect, the law is settled in that the prosecution is not bound by what is stated in the opening statement. What is stated there is merely a guide to assist the court and the parties to follow the evidence that is going to be adduced at the trial (see Wan Marzuki bin Wan Abdullah v PP [2010] MLJU 2092). It is certainly not akin to the strict rule as to pleadings in civil cases. In any case, there is, in our view, not much difference in the two descriptions. There was therefore no prejudice to the appellant.

[24] The final issue which merited consideration was the contention that the learned Judge had failed to adequately consider the defence of the appellant in that he had no knowledge of the drugs found. The appellant had given evidence that he neither knew of the secret compartment in the shoes nor of the impugned drugs hidden in those compartments. It was submitted that the learned Judge ought to have found the defence to be plausible as it was consistent with the explanation given by the appellant in his two cautioned statements, D4 and D5.

[25] In this regard, and in general, in considering whether any explanation by an accused person has dislodged the case for the prosecution, the law is not concerned with possibilities. Anything that is not impossible is by logic possible. The law will fail to protect the community if it admitted fanciful possibilities (see Miller v Minister of Pensions [1947] 2 All ER 372).

[26] For that reason, the law is concerned only with probabilities such that if a reasonable explanation is given, it must follow that the prosecution would have failed to prove the charge beyond reasonable doubt. In the case of rebutting any statutory presumption, if it is established that an accused’s explanation is more probable than not, the presumption would have been rebutted.

[27] Reverting to the instant appeal, the defence is essentially that the appellant was an innocent carrier as he was put in such a situation where he could not have rejected the request by the couple, Frankie and Sani, to carry exhibits P5 and P6 while they were in the car on the way to the New Delhi Airport. The couple had also given the appellant a pair of “Gucci” shoes which made the appellant feel obliged to accede to their request to show his appreciation for the gift he received. The couple had also paid for his return ticket from Kuching to New Delhi and had also paid for the hotel in New Delhi as well as for his meals.

[28] In our assessment, the question of whether the appellant was an innocent carrier depends on the facts and circumstances of each case. This is related to the oft-raised question of whether one is a mere possessor and another person was the real trafficker. The questions involved are connected and were clarified in the case of Yee Wen Chin v PP [2008] 6 CLJ 773 where Gopal Sri Ram JCA (later FCJ), in speaking for the Court, pronounced as follows (at p 784):

“In the course of cross-examining the prosecution witnesses it was extracted from PW5 that the information he had received was that Woo Kok Meng was trafficking in drugs at the place in question. The defence quite properly took advantage of this fact to demonstrate that Woo was the real trafficker and that the accused was entirely innocent. The accused was clearly entitled to do this in view of the decision in Mohamad Radhi v Public Prosecutor [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311 SC. That case is authority for the proposition that a person charged with trafficking is entitled to an acquittal on that charge by showing that he was a mere possessor of the drugs whilst another was the true trafficker. Whenever such a defence is taken two separate exercises must be carried out by the trial judge. He must first determine as a fact whether that other is a real person or a mere figment of the accused's imagination invented for the purpose of the trial. Next, if he finds that other person to be real the judge must then determine whether that other person is the real trafficker. This is called the Radhi direction and must be administered by a court unto itself when such a defence is taken. See Sochima Okoye v. Public Prosecutor [1995] 3 CLJ 371 CA."

[29] In the instant case, the learned Judge had considered the question of whether the appellant was an innocent carrier and had no knowledge of the drugs found in the shoes. This is how the learned Judge assessed the evidence:

“[55] The learned counsel for the accused argued that the accused was an innocent carrier as he was put in a situation where he could not have rejected the request to carry Exh. P5 and P6 while they were in the car on the way to the New Delhi Airport. The couple had also kindly given him a pair of "Gucci" shoes which made the accused felt obliged to accede to their request to show his appreciation of the gift given to him. In my view, this explanation is also not plausible and incredibly unbelievable. The last minute request to carry Exh. P5 which contained a multiple number of women shoes and the other few women shoes which were put by Sani in Exh. P6 on their way to the airport should have raised some suspicions in his mind that he ought to have checked its contents. Although he might not have possibly checked the contents of the bags in the car but at least he could do that at the airport before his departure. The accused said on arrival at the New Delhi Airport, the couple dropped him off with the bags and he proceeded to the check-in counter to check in his bags. According to him he had one hour at the airport before the departure time. It only takes at least a few minutes for the accused to have a look at the contents of Exh. P5 and P6 to satisfy himself of what he was carrying. Had he done so, he could have noticed the unusual volume of shoes not exactly in pairs scattered inside Exh. P5 and it could have also triggered in his mind why only a few of women shoes were put in his bag Exh. P6 in that manner purportedly as gifts. Neither was there any plausible explanation given as to why Exh. P5 was securely locked with a padlock and the key to it was kept by him. Once control and custody has been established and in the absence of any plausible explanation, it is a fair inference that accused had knowledge of the drug found in the sole of women shoes inside Exh. P5 and P6.”

[30] Now, it was contended by the appellant that he had no time to check the additional big bag which was unexpectedly given to him by Frankie and Sani. The appellant was at the airport only one hour before his flight and he had to rush while the check-in counter was still open. The appellant was able to check in the bag himself but without opening the bag provided by the couple. So was he an innocent carrier or was he guilty of what the law calls wilful blindness?

[31] On this issue of wilful blindness, it is trite that the law will impute knowledge if a person wilfully shuts one’s eyes by deliberately not making further inquiries when the circumstances showed that there was clearly a need to do so (see Hoh Bon Tong v PP [2010] 5 CLJ 240; Deon Jacobus Alfred Cornelius v PP [2016] 1 LNS 354; Saied Zoujhi Eisa v PP [2016] 1 LNS 301; Mohamed Hasrool Mohamed Najri v PP [2016] 1 LNS 300; Ismayilova Namid Qizi Irada v PP [2016] and Marimuthu Seringan v PP [2016] 1 LNS 64).

[32] In a recent Federal Court case of PP v Herlina Purnama Sari [2017] 1 MLRA 499, the concept of wilful blindness was explained in the following terms through the judgment of Raus Sharif PCA (now Chief Justice) (at paragraphs 45 to 47):

“[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.”

[33] Of significance in that case was the reference to the key threshold element in the doctrine of wilful blindness which is that there must first be suspicion followed by (and coupled with) a deliberate decision not to make further investigations. In the instant case, this issue of wilful blindness was never raised at the end of the trial which may explain why it is not reflected in the grounds of judgment. In any event, the issue of wilful blindness is closely connected with the defence of innocent carrier especially in cases where an accused person is asked to carry items in which illicit drugs are found.

[34] In the instant case, we agree that the element of suspicion clearly existed from the facts and circumstances of the case. The appellant was attending a wedding of the couple who were complete strangers to him. He had to travel thousands of miles to attend this wedding. He was only attending the wedding as Sani was a friend of his wife. Another curious feature was that only one ticket was provided by the couple as Sani had wanted the appellant’s wife to attend. However, he did not want his wife to go alone so he decided to go by himself.

[35] Now, what is noteworthy is that on the way to the New Delhi Airport, the couple suddenly spring upon the appellant an additional bag (Exh. P5) for him to carry. The appellant was told it contained multiple quantity of women’s shoes as gifts for the couple’s relatives and friends in Pontianak. When the additional bag was sprung on the appellant as he claimed, alarm bells would have been ringing as to why the gift of women’s shoes and why only women’s shoes. Did the couple own a shoe shop or a shoe factory? And the multiple shoes were to be given to who? Or was it left to the appellant to decide? Did he even know the relatives of the couple in Pontianak as he himself was a stranger to the couple? The last minute request to carry the bag with the shoes would have been highly suspicious to anyone. This was further compounded when the appellant had asked Frankie to see the contents of the additional bag so that he could put an additional three pairs of shoes also into that bag. The couple however told him the bag was full and there was no space in it thus fueling further suspicion.

[36] Considered in their entirety, the circumstances were such that it was at least incumbent upon him to make the necessary inquiries. He did not do this. His explanation that he did not have time to check the bag was unconvincing. It would have taken him only a couple of minutes to check the bag. Had he done so, he would have found the haphazard way in which the shoes were scattered in the bag. His suspicions of something untoward would have been confirmed.

[37] Since the appellant had failed to make the necessary inquiries when the circumstances were such as to arouse strong suspicion as to what he was told by the couple, the appellant was guilty of wilful blindness such that he was deemed to have knowledge of the illicit contents of the shoes he was carrying. He could not then be said to have raised a reasonable doubt as to his knowledge of the illicit drugs. In all the circumstances of this case, the appellant was certainly not an innocent carrier as he claimed. He was a trafficker of illicit drugs. We have no difficulty in agreeing with the finding of the learned Judge that this defence of innocent carrier is “not plausible and incredibly unbelievable”.

[38] In coming to this view, we have not overlooked the contention of the appellant that his defence was consistent with what he had stated in his two cautioned statements (D4 and D5) which were recorded the next day after his arrest. In these statements, he had revealed the names of the couple and the sequence of events. There was, it was submitted, no belated disclosure suggesting concoction (see Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209). The appellant in the statements claimed he was not guilty, had no knowledge of the drugs and was in fact framed by Frankie and Sani.

[39] Be that as it may, we do not find the cautioned statements sufficient to raise a reasonable doubt on the case for the prosecution. The story about Frankie and Sani and the wedding may all be true. What could also be true is that the appellant was complicit in the plan to conceal the impugned drugs in the shoes and transport them through Kuching as was done here. It was not difficult for him to narrate the whole sequence of events except to leave out the part of his knowledge of the illicit drugs. For these reasons, we found no merit in the contention that the appellant had no mens rea possession of the impugned drugs.

[40] We also found great difficulty in accepting that the couple had framed the appellant. If that was indeed the case, it would mean that the couple had intended to transport the drugs to their relatives and friends in Pontianak without the appellant’s knowledge. This explanation is farfetched as it begs the question as to why would the couple take a great risk of transporting drugs worth a lot of money without the knowledge of the appellant and through the transit points in Kuala Lumpur and Kuching before the drugs arrived in Pontianak. The couple would have to depend entirely on the appellant’s co-operation in doing what he was asked.

[41] Further, if indeed it was the couple’s intention to frame the appellant, it was not necessary to use a large quantity of drugs in multiple shoes to achieve their aim. And what would they hope to gain by framing the appellant as he was, by the appellant’s own admission, a stranger to them? In the end, the appellant was caught not because of information received by the authorities but due to a suspicious image on the screen of the scanning machine at the arrival hall at Kuching International Airport. The suspicions of the authorities were further aroused by the pungent glue smell coming from the shoes. For these reasons, the explanation given by the appellant does not raise any reasonable doubt on the case for the prosecution.

[42] We have also not failed to observe the learned Judge’s comment that the appellant was duty bound to call his witnesses including his own wife, Mona Fitri, to disprove knowledge of the drugs and the truth of the wedding invitation. This observation was most unfortunate as there is no legal duty on an accused person to prove his innocence or to produce witnesses to prove the same (see Illian & Anor v PP [1988] 1 MLJ 421; Goh Ah Yew v PP [1949] MLJ 150; Tan Foo Su v PP [1967] 2 MLJ 19). Any such failure cannot invite adverse comment as the duty remains throughout on the prosecution to prove the charge against an accused person beyond reasonable doubt. In any case, there could have been a valid reason why the appellant’s wife was not called to testify.

[43] Although the learned Judge had misdirected himself on this count, we did not think it was fatal having regard to the totality of the evidence. The evidence against the appellant was overwhelming in that he was caught in possession of illicit drugs. If we cast aside the adverse comment made by the learned Judge in relation to the calling of witnesses, the explanation by the appellant as to how he came into possession of the shoes, and his lack of knowledge of the illicit drugs in them, falls woefully short of raising a reasonable doubt. In our view, the trafficking charge against the appellant had been proved beyond any reasonable doubt.

Conclusion

[44] In the circumstances, and for the reasons we have provided, we found no merit in the appeal. We found no reason to interfere with the trial Judge’s findings of fact. Having considered the whole of the evidence as set out in the notes of proceedings and the submissions canvassed by both parties, we were of the view that the conviction of the appellant was safe.

[45] We accordingly dismissed the appeal and affirmed the conviction and sentence imposed by the High Court.

Dated: 16 January 2018

Signed

HARMINDAR SINGH DHALIWAL
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: Ranbir Singh Sangha (M/s Ranbir S. Sangha & Co, Advocates)

For the Respondent: DPP Ahmad Sazilee bin Abdul Khairi, Appellate and Trial Division, Attorney-General’s Chambers, Malaysia

Legislation referred to:

Criminal Procedure Code, Section 402B

Dangerous Drugs Act 1952, Sections 2, 37(da), 39B

Judgments referred to:

Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209

Deon Jacobus Alfred Cornelius v PP [2016] 1 LNS 354

Goh Ah Yew v PP [1949] MLJ 150

Hoh Bon Tong v PP [2010] 5 CLJ 240

Illian & Anor v PP [1988] 1 MLJ 421

Ismayilova Namid Qizi Irada v PP [2016]

Kumaraguru & Ors v PP [1994] 1 MLJ 254

Lew Wai Loon v PP [2014] 2 CLJ 649

Lim Pah Soon v PP [2013] 6 MLJ 252

Marimuthu Seringan v PP [2016] 1 LNS 64

Miller v Minister of Pensions[1947] 2 All ER 372

Mohamed Hasrool Mohamed Najri v PP [2016] 1 LNS 300

PP v Baddeley Tie Yew Song & Anor and other cases [2014] 9 MLJ 222

PP v Herlina Purnama Sari [2017] 1 MLRA 499

PP v Lee Yau Ket [2008] 4 MLJ 223

Rossarin Nuekaew v PP [2017] 8 CLJ 503

Saied Zoujhi Eisa v PP [2016] 1 LNS 301

Tan Foo Su v PP [1967] 2 MLJ 19

Wan Marzuki bin Wan Abdullah v PP [2010] MLJU 2092

Yee Wen Chin v PP [2008] 6 CLJ 773

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