(ii) 2 presumptions in the alternative (i.e. under sections 37 (d) or 37(da) of the DDA), without making an election as to which presumption is he relying on, in his finding of a prima facie case against the appellant and in rejecting her defence at the defence stage. [30] The effect of the learned trial Judge applying both the presumptions in sections 37(d) and 37(da) is unduly harsh and oppressive on the appellant. The application of double presumptions under section 37 (d) to invoke the presumption under section 37(da) is prohibited (see Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273). Whereas the effect of 12 invoking presumptions in the alternative without making an election as to which presumption the learned trial Judge is relying on, amounts to a misdirection on the part of the trial Judge (see Seyedalireza Seyedhedayatollah Ehteshamiardestani v Public Prosecutor [2014] 6 MLJ 408). [31] On perusal of the grounds of judgment of the learned trial Judge, we found that the learned trial Judge did not apply double presumptions in this case. Nowhere did the learned trial Judge applied the presumption under section 37(d) to invoke the presumption under section 37(da) of the DDA. [32] In this regard, we refer to pages 17 & 18 of the grounds of the learned trial Judge where he said: “…the prosecution has proved that through the evidence of SP 5 who was on duty at the Senai airport on the night of the incident and she scanned the trolley bag (P13A) saw suspicious images on the left and right sides of the wall of P13A…..The accused was seen shivering and was seen as if she was sending out sms to someone……. Based on the direct evidence of SP 5, SP 6, SP7 and SP 8 and indeed the luggage tag…on the trolley bag…was in the name of the accused. The accused was seen pushing the trolley bag…from the luggage carousel to the Special Passenger Inspection Unit and to the scanning machine. The Court was also appraised of the fact that one of the items marked as “B6” which was short pant and “G7” long pant retrieved from the trolley bag …has DNA profiling which was consistent with the blood specimen …which came …from the 13 accused. From evaluating the evidence of the prosecution witnesses there were overwhelming direct evidence to show that the accused had the mens rea possession of the drugs in the trolley bag.The accused had the knowledge of the nature of the drugs in the trolley bag and has ultimate power of disposal of the drugs she was carrying. The question of whether the accused had the requisite knowledge of the drugs in the trolley bag, reference was made to the case of Gunalan a/l Ramachandran & Ors (2004) 4 MLJ 489 which states that ”Knowledge was to be inferred from the facts and the surrounding circumstances of the case”. The prosecution evidence showed that the drugs were concealed in the aluminium foil glued to the wall of trolley bag…and was retrieved with some difficulty. In Teh Hock Leng v PP (2008) 4 CLJ 764, the court held that the drugs were cunningly concealed may indicate the intention to avoid detection and thereby exhibit knowledge…” At page 21 the learned Judge further said the following: “….The Court in the instant case and on the direct evidence that the accused had in his possession of 1920.2 grammes Methamphetanine as listed under Section 37(da) (xvi) of the Act which states that any person who is in possession of 50 grammes or more in weight of Methamphetamine, otherwise than in accordance with the authority of this Act, or any other written law shall be presumed, until the contrary is proved, is trafficking in the said drug. The Court with the aid of the presumption under section 37(da) (xvi) of the Act held that the accused was trafficking…..Methamphetamine otherwise in accordance with the authority of the Act, or any other written law shall be presumed, until the contrary is proved, is trafficking in the said drug. The Court with the aid of the presumption 14 under Section 37(da)(xvi) of the Act held that the accused was trafficking in 1920.2 grammes of Methamphetamine.” [33] From the grounds as reproduced in the preceding paragraph, the learned trial Judge found that the appellant had mens rea possession and he inferred knowledge from the evidence of the way the drugs were concealed between the walls of the bag, P13A. Subsequently the learned trial Judge made findings of trafficking under section 37(da) of the DDA. We agree with the Court of Appeal when it held that the learned trial Judge did not err when he found that the appellant had custody and control of the drugs and had made the correct inference on knowledge from the proven circumstances thereof. [34] We also found that, it is also not a case similar to Seyedalireza Seyedhedayatollah Ehteshamiardestani v Public Prosecutor where the learned trial Judge therein adverted to both presumed possession under section 37(d) and presumed trafficking under (da) in addition to section 2, without making an election whether the appellant was found to be in actual possession and was presumed to be trafficking under section 37(da) or whether he was presumed to be in possession of the drugs under section 37(d) and was found to be trafficking under section 2 of the DDA. Hence the submission by the appellant’s counsel that the facts in Seyedalireza Seyedhedayatollah Ehteshamiardestani is similar to our present case is without merits. [35] Therefore, the issues raised by the appellant with regards to whether the learned trial Judge applied double presumptions or 2 15 presumptions in the alternative under section 37(d) and 37(da) of the DDA without making a specific finding as to which presumption apply, has no merits. Issue on the Failure of the learned trial Judge to make specific finding at the end of the defence case, as to which presumption has or has not been rebutted on a balance of probabilities [36] As there was no double presumption being invoked, the issue as to which presumptions had been rebutted does not arise. There is only one presumption invoked by the learned trial Judge in this case. [37] The complaint by the appellant is that the learned trial Judge merely considered that “the contents of the cautioned statement was nothing more than a bare denial by the accused and has not helped the defence case in rebutting the presumption of trafficking in dangerous drugs”, the learned trial Judge failed to make specific finding or reference as to whether the presumption of trafficking had been rebutted by the defence case in the judgment. [38] Counsel for the appellant submitted that the failure by the learned trial Judge to separately consider whether, on a balance of probabilities the defence of the appellant had rebutted the presumption of trafficking under section 37(da) of the DDA, was fatal. However counsel for the appellant was not asking for an acquittal but merely asking for a reduction of the charge to one of possession. 16 [39] In support of this contention, counsel for the appellant referred to Subramaniam Arumugam v PP [2000] 2 CLJ 1 where the Federal Court had quashed the conviction for trafficking solely on the ground that the trial Judge had failed to consider, as a separate exercise whether on the evidence the appellant had succeeded on a balance of probabilities in rebutting the statutory presumption of trafficking under section 37(da) of the Act. The conviction of trafficking in that case was substituted with one of possession. Counsel for the appellant further referred to Alcontara Ambross Anthony v PP [1966] 1 CLJ 705 where the Federal Court held that such failure to make a finding whether the appellant had rebutted the presumption under section 37(da) of the DDA amounts to a misdirection in law by way of non direction. [40] The Court of Appeal agreed that there was a failure on the part of the learned trial Judge in making a specific finding as to whether the appellant had rebutted the presumption of trafficking under section 37(da) of the DDA on a balance of probabilities. Nevertheless, the Court of Appeal did not find such failure has occasioned a miscarriage of justice to the appellant which warrants vitiating the conviction imposed by the learned trial Judge, as the Court of Appeal found that there was indeed a case of trafficking established by the prosecution under section 2 of the DDA premised on the evidence that the appellant was carrying, keeping and transporting the drugs from New Delhi to Johor Bahru. 17 [41] It is our view that the Court of Appeal had not erred in this respect. Counsel for the appellant premised his argument on the Federal Court cases of Subramaniam Arumugam and Alcontara. However we need to state that the facts of Alcontara are distinguishable from our present case. There, both the presumptions under section 37(d) and 37(da) of the DDA were invoked against the appellants therein. This can be discerned from the Alcontara’s case where the Federal Court speaking through Edgar Joseph Jr FCJ said at page 219 paragraph I that: “ …..Nowhere in his judgment did the judge direct attention to the statutory presumptions as to possession (s 37(d)) and trafficking (s37(da)), and as a result, he made no finding as to whether the defence had rebutted the same. In our view this was a misdirection in law by way of non-direction having regard to the following passage in the judgment of Azmi SCJ in Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169, at p 172 para 1: “In our opinion unless the evidence in a particular case does not obviously so warrant, it is incumbent for the court to consider whether on a balance of probabilities, the evidence of the defence has rebutted the statutory presumption of trafficking under s 37(da) as a separate exercise even though the court is satisfied on balance that the presumption of possession under s 37(d) has not been rebutted. In this case, the failure to do so was a material misdirection and was fatal to the conviction. Having said that, we would add there may well be cases where because of the absolutely overwhelming nature of the affirmative evidence led by the prosecution, there is no need for resort to be had 18 to the statutory presumptions aforesaid, but even in such a case, we consider that the trial court should, specifically, so find.” [42] Similarly in Subramaniam Arumugam, it also dealt with both presumptions being invoked, hence the necessity of making specific findings whether both presumptions had been rebutted or whether only one presumption was rebutted. It cannot be presumed that if one presumption was rebutted, the other presumption become irrebuttable or rebutted. There, the learned trial Judge only dealt with the statutory presumption under section 37(d) of the DDA without adverting to the presumption under section 37(da) of the DDA. In other words there was no consideration of whether the presumption under section 37(da) of the DDA had been rebutted or not. Hence the necessity of making specific finding on presumption under section 37(da) of the DDA. This can be seen from the judgment Subramaniam Arumugam at page 6 paragraph h: “The third ground was the failure of the trial Judge to follow Mohamad Radhi bin Yaacob v Public Prosecutor [1991] 3 CLJ 2073; [1991] 3 MLJ 169 when he convicted the appellant for trafficking without addressing his mind on the question whether the defence had rebutted the statutory presumption of trafficking under s. 37(da). Encik Karpal Singh referred us to the grounds of judgment of the trial judge which he contended dealt only on the statutory presumption under s. 37(d) without adverting to the presumption under s. 37(da). On this point, Dato Mohd Zaki, TPR agreed that the trial Judge based the conviction for trafficking on the failure of the appellant to rebut the presumption of possession under s 37(d) without considering s. 37(da). 19 After considering the evidence and the conclusion of the learned trial Judge, we found that his Lordship-had misdirected himself in failing to adopt Mohamad Radhi in considering whether on a balance of probabilities the evidence of the defence had rebutted the statutory presumption under s. 37(da) of the Act, although he found that the appellant had custody and control of the red plastic bag and therefore deemed to be in possession of the drug. Accordingly , we allowed the appeal on this ground, quashed the conviction, set aside the death sentence and substituted a conviction under s. 6….” [43] In our present case, only one presumption was invoked, namely section 37(da) of the DDA. The learned trial judge did consider the defence of the appellant, except that there was no specific finding whether such defence forwarded by the appellant had rebutted the presumption under section 37 (da) of the DDA, which the learned trial Judge had invoked. [44] Based on the authorities cited, we are of the view that such failure on the part of the learned trial Judge to direct himself on this issue (making specific finding whether the presumption has been rebutted) has not occasioned a substantial miscarriage of justice. There is no necessity for the learned trial Judge to undertake a separate exercise to consider whether on a balance of probabilities, the appellant has rebutted the statutory presumption of trafficking under section 37 (da) of the DDA, given the facts in this particular case. The learned trial Judge had considered the facts and evidence, namely that appellant was lugging a bag which contained 1920.2 grams of dangerous drugs which was glued and cunningly hidden between the left and right sides of P13A from New Delhi to Johor. When PW 8, a narcotics enforcement officer at the airport inspected P13A, he said he could 20 feel bulges on both the left and right walls of P13A. P13A bore a luggage tag in the name of the appellant. At the material time when the appellant was arrested, she alone was in possession of the bag which contained the dangerous drugs. It is improbable that “George” would give a bag which contained 1920.2 grams dangerous drugs for her to lug across from New Delhi to Johor without her knowledge. There was also the finding by the learned trial Judge that “George” was a fictitious character invented by the appellant. There was also no credible explanation as to what would happen to the drugs in P13A after she arrived in Johor. This shows the incredulity of the appellant’s defence of no knowledge as to the presence of the dangerous drugs in P13A, and the strong inference is that the appellant had knowledge and that she was carrying, keeping and transporting the dangerous drugs for purposes of onward transmission to another person. The large amount of the dangerous drugs cannot possibly be for her personal consumption. In light of the foregoing, even if the learned trial Judge did not make a specific finding in accordance to the rule as laid down in Mohamad Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169, the conclusion would have been the same, namely that the appellant was trafficking within the definition of section 2 of the DDA. The Court of Appeal did not err when it found that there was indeed a case of trafficking established by the prosecution under section 2 of the DDA premised on the evidence that the appellant was carrying, keeping and transporting the drugs from New Delhi to Johor Bahru. In this respect the Court of Appeal case of Lim Son Heng v Public Prosecutor [2014] 6 MLJ 109 is relevant which had addressed and considered on a similar issue. It was held in that case that: 21 “(1)……….The circumstances of the case did not obviously warrant the trial Judge undertaking such a separate exercise. The appellant was not in passive possession of the drugs in question. Considering the quantity of the drugs, it was unlikely they were for his consumption and they were found in a drug-manufacturing setting. In the absence of contradiction or credible explanation, this fact was sufficient to lead to a strong inference that the appellant was eventually going to transfer possession of the drugs to another party. In view of the overwhelming evidence, even if the trial judge had undertaken a separate exercise of assessment in accordance with the rule in Mohamad Radhi bin Yaakob v Public Prosecutor, he would have come to the conclusion that the appellant had failed on balance of probabilities to rebut the s 37 (da) presumption of trafficking …” The appeal of the appellant to the Federal Court was dismissed and the conviction and sentence by the Court of Appeal was affirmed by the Federal Court vide Appeal No: 05-182-08/2013. [45] Given the aforesaid, there is no merit in the appeal by the appellant. The evidence presented by the prosecution against the appellant was overwhelming. The findings of the learned trial Judge were in accordance to the weight of evidence adduced which was subsequently affirmed by the Court of Appeal. In the context of the present case, the failure of the learned trial Judge to direct his mind whether the presumption under section 37 (da) of the DDA has not occasioned a miscarriage of justice. The proviso to section 92 (1) of the Courts of Judicature Act 1964 applies, which provides that: “ Provided that the Federal Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the 22 appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.” In light of the circumstances, we do not find the findings of both courts warrant appellate intervention and we are satisfied that the conviction is safe. [46] Accordingly, we dismiss the appeal and affirm the conviction and the death sentence imposed by the learned trial Judge. [47] My learned brother and sister Judges in the panel (save and except for Nallini Pathmanathan, FCJ) have read this judgment and have expressed their agreement to it, to form the majority judgment of this court. Signed by: Zabariah Mohd Yusof Judge, Federal Court Malaysia Dated: 13.8.2020 23 COUNSEL: For the Appellant: Gopal Sri Ram Hisyam Abdullah Abdul Rashid Ismail, Yasmeen Soh Sha Nisse Karluis Quek Azreen Ahmad Rastom Siti Nurani Md Zahidi Mohd Nor Hafidzuddin Yusoff Messrs. Rashid Zulkifli For the Respondent: Nik Suhaimi Nik Sulaiman Umar Saifuddin Jaafar Mangaikarasi Krishnan Faizah Salleh Ku Hayati Ku Haron and Asmah Musa Muhammad Azmi Mashud Attorney General’s Chambers