Qui Jieru v Public Prosecutor (B-05(SH)-33-01/2019 & B-05(H)-620-12/2018)

The Appellant, a China national, was convicted and sentenced to life imprisonment by the High Court for the offence of trafficking in dangerous drug under s. 39B (1) (a) of Dangerous Drugs Act 1952 (“the Act”), punishable under s. 39B (2) of the same Act.

This is an appeal by the Appellant against both the conviction and sentence. The Public Prosecutor as Respondent in turn had appealed against the sentence. The Charge

The Appellant was charged for trafficking 1,211.5 grammes of the drug methamphetamine at Kuala Lumpur International Airport (“KLIA”). The charge reads as follows: “Bahawa kamu pada 10/12/2013, lebih kurang jam 2.10 pagi di Cawangan Pemeriksaan Penumpang (CPP2), Terminal Pengangkutan Tambang Murah (LCCT), Lapangan Terbang Antrabangsa Kuala Lumpur, di dalam daerah Sepang, dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu methamphetamine seberat 1,211.5 gram. Dengan itu, kamu telah 3 melakukan suatu kesalahan di bawah seksyen 39B (1) (b) ADB 1952 yang boleh dihukum di bawah seksyen 39B (2) Akta yang sama.” The Prosecution’s case

At the High Court the Prosecution adduced evidence that on 10 December 2013 the Appellant arrived by a flight from Shenzhen, China. At the airport, she was seen walking alone around 2.10 am at the baggage scanning machine by PW 7, the Customs officer manning the machine.

PW 7 testified he saw the Appellant carrying and managing a yellow bag into the scanning machine. She was also alone in doing this without the assistance of anyone present. After she put the bag in the machine, PW 7 saw on the monitor of the machine a suspicious image in that bag. He then requested the Appellant to bring the bag to the examination counter for it to be further examined. There he ordered the Appellant to open the bag and she was personally able to do as told using combination numbers.

In the bag, PW 7 found 5 purses in different colours. He scanned the purses twice and on both occasions there were suspicious images suspected to be drugs seen.

He later took the Appellant and the bag to the Examination Room for further examination. There he took out at random one of the purses in green in the presence of the Appellant and two other Customs officers, Mohamad Jamlay Bin Jaafar and Unit Head 4 Roszlina bt Seman. He examined it and found the same to be thicker than usual. He cut the front and back potions of the purse and found a transparent plastic containing crystal powder suspected to be drugs. Using a test kit, he tested the same and found it to be methamphetamine. He sealed the plastic again using a duct tape. All these were done in the presence of the Appellant. Unit Head Roszlina bt Seman then called her superior who made arrangement for the appointment of PW 10 as the Investigation Officer (“IO”) for the case.

PW 7 then handed over the bag and other exhibits together with the drug to PW 10, the IO. Findings of Trial Judge at the End of Prosecution’s Case 9. At the end of the Prosecution’s case the learned High Court’s Judge (“HCJ”) found the three elements needed to be proven by the prosecution were as follows:

(a) The substance found was dangerous drug;

(b) The Appellant had custody, control, possession and knowledge of the dangerous drug and

(c) The Appellant was trafficking that dangerous drug.

In respect of the first element, the learned HCJ found this was proven by the chemist, PW5 who testified the methamphetamine found weighed 1,211.5 grammes and this drug is listed as dangerous drug pursuant to the First Schedule of the Act. 5

In respect of the second element, based on the evidence adduced, the learned HCJ found the Appellant had control, custody and possession of drug. In respect of knowledge of the same, the learned HCJ presumed knowledge having regard to the possession of the drug by the Appellant. In this regard, the learned HJC had used the presumption under s. 37 (d) of the Act that the Appellant is deemed to be in possession of the drug and as a result deemed to have knowledge of the nature of the same.

In respect of the third element, it is indicated in his grounds of judgment that the learned HCJ found the Appellant to be trafficking the drug pursuant to the definition of the same in s. 2 of the Act.

Accordingly, the learned HCJ called the Appellant to enter her defence and she chose to give her defence on oath. Defence 14. In narrating her defence, the Appellant testified that she came to Malaysia to meet her Nigerian boyfriend. She knew him as Daymen or Diamond (Appellant’s Witness Statement – Page 250 Volume 3

(C) of the Appeal Record) and he had invited her to Malaysia to celebrate his birthday. On the request of Daymen, just before she took the flight to Malaysia, she met one Stanly who she said was a good friend of Daymen. Daymen told her that Stanly wanted her to carry Stanly belongings to be given to Daymen in Malaysia.

By the roadside on the way to the airport in Shenzen, the Appellant met Stanly. She said by that roadside, Stanly took all the things in 6 her own bag and put it in Stanly’s yellow bag without her consent. She saw the purses in that yellow bag when Stanly opened the bag. Despite not giving her consent for all her belongings in her own pink bag to be shifted to Stanly’s yellow bag, she then took that yellow bag to Malaysia.

She then narrated almost the same evidence as PW 7 with regard to her arrival at KLIA. She said she was asked to open the yellow bag by a Customs officer. In the bag, those purses were found and these were examined by the Customs officer. She was then taken to a room where certain parts of the purses were cut opened. In them, some substances were found. She said test were done on the substances found in the purses and she was later told that these substances found were suspected to be drugs.

She said she had difficulty communicating with the Customs officer because of her poor English but she confirmed the evidence of PW 7 that a Customs officer she knew as Lister, PW 8, was assigned to her as interpreter. She told the Customs officers she had no knowledge of any drugs and that the purses in the yellow bag were given to her by Stanly. She was told by Stanly that upon her arrival, she is to hand over the same to Daymen.

She gave evidence that the Customs officer also took her hand phones containing Stanly’s and Daymen’s numbers. The Customs officer examined the photographs, applications and messages in the phones carefully. She said when she was detained, she received a lot of calls and messages from Daymen but she was instructed not to answer the calls and messages. However since there were too 7 many calls, she was instructed by PW 10, to answer four calls from Daymen. He instructed the Appellant to ask Daymen to come to the airport to fetch her. She did as told but Daymen refused and instead told her to come to a specific location which she does not know. The Customs officer refused to take her to that place so that Daymen can be apprehended. She testified the Customs officer knew of Daymen and Stanly phone numbers and that they were the real drug traffickers.

The only other witness for the Appellant at the High Court was her mother, Wu Hui Ping. She testified that the Appellant is a good daughter and was never involved in abusing or trafficking drugs in any manner. She said that the Appellant had working experience in finance and administration.

She gave evidence that the Appellant came to Malaysia to celebrate Daymen’s birthday. Although she personally dislikes Daymen, the Appellant was very much in love with him. The Appellant gave her Daymen’s hand phone number and the Appellant told her that she was to meet Stanly to get Stanly’s belongings. She saw the Appellant bringing her own pink bag into a taxi the day she left for the airport in China.

She flew to Malaysia to meet her and in Malaysia she called Daymen to express her anger at him. He told her not to worry as all will be fined and settled accordingly. She said Daymen no longer use the number she called and that number is now used by someone else. She was later informed that the Appellant had been arrested in Malaysia on suspicion of drug trafficking. 8

She said she is certain that the Appellant would not be involved in drug trafficking and there is no reason for her to do so. She believed the Appellant had be duped by Daymen. However she admitted that she had never met Daymen and Stanly. Findings of Trial Judge at the End of the Defence’s Case 23. At the end of the defence’s case the learned HCJ found the Appellant was not able to raise a reasonable doubt on the prosecution’s case. The learned HCJ found that the Appellant merely blamed Daymen and Stanley for what had befallen her in respect of the charge.

Relying on PP v Abdul Rahman Akif [2007] 4 CLJ 337 the learned HCJ found the Appellant knew about the drug found in the purses considering the manner upon which she had carried the yellow bag.

The learned HC judge also found the Appellant had not been able to rebut the presumption under s. 37 (d) of the Act on the balance of probabilities raised in respect of possession and knowledge regarding the drug she was carrying.

The learned HCJ found that based on the evidence before the court, the prosecution had proven its case beyond reasonable doubt and therefore the Appellant must be convicted for the offence charged. 9

In respect of sentence, the learned HCJ found it appropriate not to impose death penalty against the Appellant but only life imprisonment. From His Lordship grounds of judgment, the learned HCJ in deciding this referred to the Appellant’s evidence after being arrested that she communicated with Daymen through her hand phone. She gave evidence she was requested by the IO to speak to Daymen to get Daymen to come to the airport so that he could be apprehended. She said in that call, Daymen told her instead to meet him at a certain location which was shown in that hand phone. The learned HCJ also took into account the Appellant’s evidence that the Customs officers knew about the messages and calls she had received from her hand phone. After these were considered by the learned HCJ, His Lordship said as follows: “Daripada keterangan ini, Mahkamah berpandangan bahawa Tertuduh telah menceritakan penglibatan Daymen sebagai orang yang bertanggungjawab. Mahkamah juga berpandangan bahawa tindakan mengesan Daymen tidak boleh dibuat dalam masa yang singkat. Mahkamah berpandangan Tertuduh telah mematuhi peruntukan s.2A Akta A 1558. Oleh yang demikian, Mahkamah mengenakan hukuman penjara seumur hidup ke atas Tertuduh (seorang wanita)”.

Accordingly the learned HCJ sentenced the Appellant to life imprisonment. 10 Grounds of Appeal 29. Although there are several grounds in the petition of appeal, at the hearing of the appeal, upon being asked and as reflected in the Appellant’s written submission, learned counsel for the Appellant informed this court they were relying only on three grounds in their arguments to reverse the decision of the High Court.

First, the Appellant was an innocent carrier of the drug without knowledge of the same being carried in the bag. This is evident by the conduct of the Appellant who cooperated all along with the authorities even when the drug was found. She did not attempt to run away and in fact was calm and collected upon being questioned. Her conduct showed that she had no knowledge that the drug was in her bag.

Further, the way the drug was concealed in her bag suggested that she was merely an innocent carrier without knowledge of the same. A normal cursory inspection with the naked eye will not reveal that the drug was concealed in the purses placed in the bag. Hence, the notion that it was willful blindness on her part should not be inferred.

It was also submitted that the drug were innocently carried by the Appellant as the same belongs to her boyfriend, Daymen. She was unaware of the drug in her bag and she was in love with Daymen and there is no reason not to take the bag and the contents in it for the latter. She communicated with Daymen through the phone after she was arrested in the presence of the IO. 11

In respect of the second ground, it is submitted that the learned High Court’s Judge had wrongly used double presumptions in finding the Appellant guilty. This relates to the presumption of possession of dangerous drug under s. 37 (d) and presumption of trafficking of the drugs under s. 37 (da), both of the Act. Presuming both possession and trafficking under the said provisions is wrong in law.

The third ground relied by the Appellant is that investigation was not done on Daymen despite the Appellant’s informing the Customs that she had unknowingly carried the drug in the purses meant for Daymen after being told by Stanly to hand the same over to Daymen on her arrival here. In respect of this submission, the Appellant basically raised what is now commonly known as the ‘Alcontara Notice’ based on the Federal Court’s decision in Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209; [1996] 1 CLJ 705. Based on this case it is argued that since the Appellant had informed the Customs that she had carried the bag on the insistence of Stanly who told her that Daymen will take hold of the purses later, it was incumbent on the Customs to investigate the truth of the information given.

In respect of the cross appeal against sentence, the prosecution argued that the only appropriate sentence is the death penalty and not life imprisonment. The prosecution submitted this is because it was wrong for the learned HCJ to find that the conditions specified in s. 39B (2A) of the Act had been fulfilled. 12 Our Decision 36. At the outset, in hearing this appeal, we ought to point out the importance of the Federal Court’s case of Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613. In this case the Court of Appeal, hearing the appeal against the decision of the High Court had undertaken its own examination and evaluation of the evidence but maintained the High Court's convictions and sentences. The propriety of this action of the Court of Appeal is addressed by the Federal Court where Zulkefli Ahmad Makinudin FCJ later PCA (as His Lordship then was) in delivering judgment held as follows: As regards the first main ground of appeal raised by the appellant, I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence available as adduced by the prosecution. The Court of Appeal is in a position to do so in the present case even though the grounds of decision of the trial judge as appearing in the appeal records is found lacking in specific findings and with no reasons for the findings.

Further it was held as follows: The Court of Appeal has the discretion to re-evaluate the remaining evidence and to scrutinise in totality such other evidence, apart from the confession to determine whether the evidence is sufficient to satisfy all the elements of the charges against the appellant. After all such steps have been taken, the Court of Appeal is obliged to scrutinise whether the evidence is sufficient to affirm the conviction against the appellant (see Public Prosecutor v Abdul Rahman Akif [2007] 5 MLJ 1: [2007] 4 CLJ 337). [Emphasis Added]

It should be noted, based on the above case that in order to determine whether there is sufficient evidence to affirm a conviction, obviously the evidence adduced by the defence must also be considered. Thus the function of this court on its own is far ranging 13 to include reviewing and re-evaluating the evidence as a whole presented before the trial court. This is stressed to impress the above authority by which we are equipped to formulate the findings we have made on our own in hearing the appeal. We also felt compelled to highlight the above case because in the present appeal too, the Appellant had submitted, though not extensively, that the learned HCJ’s had failed to give reasons on His Lordship’s findings. Thus even if this is true, although we disagree with the Appellant on this point, we note our capacity and role to review and re-evaluate the evidence adduced before the learned HCJ and essentially to scrutinise whether the evidence as a whole is sufficient to affirm the conviction independent of the reasons or the alleged lack of it from the learned HCJ. Whether the Appellant is an innocent carrier and not willfully blind 39. Hence moving to the submissions of the Appellant before us, in respect of the arguments that the Appellant was an innocent carrier and not someone who had chosen to be willfully blind, we are of the finding that these two contentions are highly improbable. We do not find these probable as the Appellant herself testified she knew of Stanly only about a month before he requested her to take the bag with her. This means she hardly knew Stanly to place her trust on him. In fact in cross-examination she said she trusted Stanly only because he was a good friend of her boyfriend, Daymen. And Stanly and Daymen had called each other “brother”. We are of the finding these assertions by the Appellant would not be sufficient. In any event the Appellant also admitted in that one month, she never saw Stanly and Daymen together. (Page 267 Volume 2(D) of the 14 Appeal Record). Hence, we do not agree this explanation is sufficient to accept her reason in trusting Stanly.

As indicated the Appellant’s version regarding the bag is that it was given to her by Stanly. That action of the Appellant in carrying the bag containing the drug without her slightest hesitation cannot mean that she was an innocent carrier and indeed made her someone who chose to be ignorant of what she was carrying. The fact that she testified she did so because Stanly asked her to, makes the contention not only unconvincing but unbelievable. In this regard we considered the Appellant own evidence that she attended Guangzhou Vocational College in China and had some working experience in finance and administration. Hence the Appellant most certainly was not a simpleton gullible of taking that yellow bag from someone hardly known to her without at least being suspicious of the same.

Besides nowadays when widespread news reports have highlighted the incidents of drugs and contrabands been concealed in bags and the likes, it is most difficult to believe that the Appellant would fall prey to such acts. Also considering her level of education and working experience, she cannot possibly be a victim of such deception.

A fair conclusion considering the facts of the present case is that the Appellant was willfully blind in carrying the drug to Malaysia. In finding this we are guided by the Federal Court’s case of PP v Herlina Purnama Sari [2017] 1 MLRA 499 that explains as follows: 15 Willful 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 enquiries 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 willful blindness itself is that of suspicion followed by (and coupled with) a deliberate decision not to make further investigations.

Further the Appellant devoted love to Daymen may be intoxicating but to suggest because of that endless love she was too carefree in accepting the yellow bag from Stanly without questions is too incredible to be believed. After all this is not the first time she is in love. She acted and portrayed herself like a damsel in her maiden love but with respect her background would indicate this most probably is a concoction of her real self. We noted she herself gave evidence she was in the process of divorcing her husband and on top of that they have a child. Thus it would not be too remote in finding that she fully knew the effect, danger and pitfall of anyone madly and blindly in love. At least in this case not to be deceived by Daymen even if we were to follow her own version of her feelings towards him.

And the fact that she had cooperated with the authorities and did not run away should not weigh favorably for her to be considered as an innocent carrier. She had no option but to answer the questions and obey the instructions of the Customs officers. Anything less from her would only arouse more suspicion on herself. Further, in any international airports where there are security personnel and surveillance all over, she would have realised running away would not be possible and in fact pointless. 16

Further in this respect our findings are akin to the findings made in the Federal Court’s case of Teh Hock Leong v PP [2010] 1 MLJ 741 where it states as follows: First, he contended that the High Court and the Court of Appeal had failed to consider the contemporaneous conduct of the appellant in not trying to escape or putting up a struggle with the police when confronted by PW5 and his men or attempting to disassociate or discard the backpack containing the dangerous drugs. Such conduct, if considered by the courts below, could infer that the appellant had no knowledge of the said drugs in the backpack. It is our view that in order to draw a favourable inference from the appellant's contemporaneous conduct, his action or inaction must be examined in the light of the situation at the material time. The area where the appellant was confronted by PW5 was the arrival gate of an incoming flight in the KLIA. This was the only exit point where passengers disembarking the plane can enter the KLIA terminal. It is common knowledge that the area was tight and restricted with hardly any room for the appellant to make a successful escape even if he had tried. From here the appellant was then taken by PW5 and his men to PW5's office in the KLIA. The approximate walking distance was 600–800 metres. Here again the appellant's chances of a quick getaway were minimal since he was escorted and was within the restricted vicinity of the KLIA building. And, if the appellant were to attempt to throw away or disassociate himself with the backpack during this entire duration described it would evidently be noticeable. Of course, since the drugs were so cunningly concealed, there could be no necessity to take such drastic actions which may attract instant suspicion. So against these circumstances, the appellant's docile conduct throughout the period described could not have inferred an absence of knowledge of the said drugs. For this reason there is no misdirection by the courts below. 17

Based on the all the reasons and cumulative findings, we are unable to agree that the Appellant was an innocent carrier and had not been willfully blind as to the contents of the bag, particularly the drug. Whether the learned HCJ applied double presumptions 47. Moving on to the second ground of appeal, with respect, we are unable to find any evidence that the learned HCJ had used double presumptions in respect of possession and trafficking of the drug. In this regard, it is simply not true for the Appellant to say that the learned HCJ had used s. 37 (d) of the Act to presume possession of the drug and used s. 37 (da) of the Act to presume trafficking of the same. For ease of reference, s. 37 (d) and (da) of the Act state as follows: In all proceedings under this Act or any regulation made thereunder-

(d) any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug; (da) any person who is found 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, to be trafficking in the said drug…

From the learned HCJ’s grounds of judgment, what is apparent to the contrary is that the learned HCJ had only used the presumption for possession of the drug pursuant to s. 37 (d) of the Act but did not at all use the presumption for trafficking pursuant to s. 37 (da) of the 18 Act. In fact in respect of trafficking, the learned HCJ found direct trafficking pursuant to s. 2 of the Act. Again for ease of reference, the relevant part of s. 2 of the Act states as follows: … “trafficking” includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act…

And in this regard we shall narrate what was found by the learned HCJ regarding possession as follows: “Oleh itu Mahkamah juga menggunapakai anggapan di bawah seksyen 37 (d) Akta…”

And in respect of trafficking the learned HCJ said: “Mahkamah memutuskan bahawa Tertuduh mengedar dadah berbahaya tersebut menurut s. 2 ADB 1952”.

Hence we find that it was erroneous for the Appellant to submit that the learned HCJ had unlawfully used double presumptions in respect of the drug found. As a consequence we are of the view that the law on double presumption as laid down by the Federal Court’s decision in Alma Nudo Atenza v. Public Prosecutor and another appeal [2019] 5 CLJ 780 has not been contravened.

In respect of possession we are of the view that the Appellant was in close proximity with the bag and had exclusive control of the same. Possession cannot be denied in view of this circumstance. In finding this we took into account the Federal Court’s case of PP v Abdul Rahman Akif [2007] 4 CLJ 337 where the following is said: 19 In Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17; [1956] 22 MLJ 237 Thomson J dealt with the issue of possession under the Common Gaming Houses Ordinance 1953 and at p. 239 he observed: "Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th Edition, page 304): A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.

At this stage it is also appropriate to explain, as the presumption of possession had been made by the learned HCJ pursuant to the statutory provision narrated, Appellant’s knowledge on the drug had also correctly been imputed on her. And in this regard the manner upon which the drug was carefully concealed in the purses indicates she had knowledge of the same. For this the Federal Court’s case of Teh Hock Leong mentioned earlier states as follows: The method employed to convey or transport a drug may sometimes furnish evidence of knowledge. For example, an attempt to carefully conceal a drug may indicate an intention to avoid detection and hereby point to knowledge. Of course it all depends on the facts of each individual case.

In addition, based on the all the reasons explained, we are also unable to find that the Appellant had rebutted the presumption under s. 37 (d) of the Act on the balance of probabilities. Whether investigation should be done – ‘Alcontara Notice’

In respect of the third ground for the Appellant’s appeal, firstly we had examined the Appellant’s petition of appeal to determine whether this ground had been alluded in this petition. Again as explained earlier this ground relates to the contention that despite 20 the alleged involvement of Daymen and Stanly essentially as the real traffickers of the drug, there was no investigation done by the Customs in respect of this contention of the Appellant. And when combing the petition of appeal, we could not find that the Appellant with respect had alluded to this ground in the petition. There is no indication at all that this is reflected in the Appellant’s petition of appeal.

Secondly, as this is not stated in the petition, it has infringed s.

We are also guided by our learned sister Rhodzariah Bujang JCA judgment in the Court of Appeal’s case of Hairul Fazli bin Mokhtar v Public Prosecutor 2019 7 AMR 245 where it is ruled, pursuant to the statutory provision above, a ground of appeal not stated in the petition of appeal shall not be heard during appeal.

We are of the opinion that the statutory provision and case law above are very clear in requiring any particular ground to be stated in the petition of appeal. Otherwise such ground cannot be argued during the appeal. Based on this reason alone, we do not think that the third ground relied by the Appellant should be heard. 21

Nonetheless, in an abundance of caution, we shall address this issue accordingly. First it is trite that to constitute a valid ‘Alcontara Notice’ the information and assertion given to the authorities that the drug belongs to someone else must be accompanied with sufficient particulars of that alleged person. Obviously it would not be of any assistance if only the first name of that individual is given without sufficient details for the authorities to start investigation in ascertaining the truth of that information or assertion. Otherwise all drug traffickers would only be too ready with a fictitious first name on top of their head to force the authorities to start an investigation once they are arrested. And in return the authorities will be put on a wild goose chase in their investigations.

In the Court of Appeal’s case of Mostafa Lesanibaroogh Ebrahim & Anor v Public Prosecutor and Another Appeal [2017] 4 MLJ 177 Kamardin Hashim JCA delivering judgment explained it clearly as follows: “[40] There are a plethora of decided cases on ‘Alcontra Notice’, one of which is the case recently decided by this court in Chonmanee Laphathanawat v Public Prosecutor [2017] 4 MLJ 227; [2017] 1 LNS 72, where Idrus Harun JCA, when citing with approval the decision of this court in Marimuthu a/l Seringan lwn Pendakwa Raya [2016] MLJU 1561; [2016] 1 LNS 64, said: [40] In Marimuthu a/l Seringan lwn Pendakwa Raya [2016] MLJU 1561; [2016] 1 LNS 64 in considering the issue of the Alcontara Notice the High Court said: [32] Peguambela terpelajar berhujah bahawa ‘Notis Alcontara’ telah dikemukakan dengan awal. Dengan hormatnya kami tidak bersetuju. Kami tidak bersetuju bahawa satu ‘Notis Alcontara’ yang lengkap dan sempurna telah diberikan kepada pihak polis. Di dalam kes Alcontara a/l Ambross 22 Anthony v PP [1996] 1 MLJ 209; [1996] 1 CLJ 705; [1996] 1 LNS 597, fakta dalam kes itu berbeza dengan fakta dalam kes semasa terhadap perayu. Dalam kes itu, butir-butir penuh penama ‘Che Mat’ yang disebutkan oleh perayu dalam kes itu telah diberikan sepenuhnya di dalam Percakapan Beramaran yang telah dirakam dari perayu dalam kes itu, tetapi tidak di dalam kes semasa terhadap perayu. [33] Dalam kes Rengarajan Thangavelu v PP [2015] 1 CLJ 993, Mahkamah Rayuan telah membuat keputusan atas isu yang sama, seperti berikut: [10] In respect of ground (i) we have meticulously looked into the cautioned statement. There was no sufficient information for the police to investigate the case in relation to the person ‘Pandian’ who the appellant says gave the drugs to him. And also there was no sufficient information of the person who the appellant says the drugs were supposed to be handed over to by him as per ‘Pandian’s’, direction. From the decided cases, the information in the cautioned statement without sufficient information of ‘Pandian’ and the purported recipient is a story and is not a good ‘Alcontara Notice’ for placing an obligation on the part of the prosecution[2017] 4 MLJ 177 at 194 to rebut the same. The story if true, places the burden on the appellant to rebut trafficking on the balance of probabilities. That is to say, he may have to call ‘Pandian’ or the purported recipient to give evidence in support of his case. However, if he has given a good ‘Alcontara Notice’ the obligation will be for the prosecution to track down ‘Pandian’ or the purported recipient to ascertain the truth of the appellant’s story to the satisfaction of the court. A bad ‘Alcontara Notice’ does not help the appellant at all but imposes an obligation on the appellant to lead evidence in relation to his story to rebut trafficking, that too on a balance of probabilities. In Phiri Mailesi (Zambian) v PP [2013] 5 MLJ 780; [2013] 1 LNS 391, the Court of Appeal, through Hamid Sultan bin Abu Baker JCA on ‘Alcontara Notice’ had this to say: It is pertinent to note that the ‘Alcontara Notice’ must have sufficient particulars in the right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story or version. It 23 must also be given at the earliest opportunity at the material time of the arrest or at least upon counsel taking instruction from the accused to conduct its defence in addition the defence’s version should be put at prosecution stage and to positively evaluate the story of the accused relating to ‘Alcontara Notice’ before evaluating the prosecution case and applying the maximum evaluation as Alcontara case places the onus on the prosecution to rebut or sufficiently explain that they have discharged that onus. In the instant case evidence will show that the defence has not given an ‘Alcontara Notice’ in the right perspective. [41] In the appeal before us the learned trial judge had made the following findings with regard to the characters of Bord, Wit and Wan: [48] Di sini, tiada apa-apa keterangan yang menunjukkan maklumat jelas mengenai Bord, Wit dan Wan diberikan kepada pegawai penyiasat atau pihak polis. Apa yang dinyatakan di dalam D126 adalan Bord merupakan seorang lelaki berkulit hitam yang tertuduh dikenali melalui internet dan Wit dan Wan adalah perempuan warganegara Thailand. [42] Based on the evidence and case authorities referred to above, we were satisfied that the defence had failed to provide sufficient and good particulars in connection with the appellant’s evidence on the three individuals and the places where she had stayed whilst in Brazil that would call for investigation by the police. In the event the defence argument on this aspect of its case collapsed. [41] Similarly, in our case at hand, we hold that no effective ‘Alcontara Notice’ had been given by the appellants as regard to ‘Mehdi’. Therefore, the police cannot be blame for the failure to investigate ‘Mehdi’.

In the present appeal too, the Appellant only mentioned the name of Daymen and Stanly a day after being arrested when her cautioned statement was recorded. She did not give these names when she was first arrested. Besides no full names of the two 24 gentlemen were given but only their first name. That obviously would not constitute a valid ‘Alcontara Notice’. It can only be fairly deduced without the full names and more details about Daymen and Stanly, there is not much investigation that can be done in respect of both.

Further, in our finding, it is only because of their own initiatives that the Customs officers had tried to call the international phone numbers provided by the Appellant but these numbers could not be reached. And the investigation on the local phone numbers failed to reveal the involvement of Daymen and Stanley.

Thus, based on the reasons explained we do not think there is sufficient merit for us to agree and accept the Appellant’s third ground of appeal. Sentence 64. On the cross appeal by the prosecution regarding sentence, as indicated earlier, the same had contended the conditions laid down under s. 39B (2A) of the Act had not been met by the Appellant for the learned HCJ to impose life imprisonment. As such, upon conviction, the only sentence that should be imposed according to the prosecution is the death penalty. In addressing this contention, it is appropriate to begin by looking at s. 39B (2) of the Act. It states as follows: Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than fifteen strokes. [Emphasis Added] 25

While s. 39B (2A) of the Act states: In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:

(a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;

(b) there was no involvement of agent provocateur; or

(c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and

(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

In imposing life imprisonment the learned HCJ found that the Appellant had narrated the involvement of Daymen and that the Appellant had satisfied the conditions laid down in s. 39B (2A) of the Act as shown above.

There is no dispute regarding the provisions of s. 39B (2A) (a), (b) and (c) of the Act as indicated above. What is disputed is whether s. 39B (2A) (d) of the Act, also shown above, had been satisfied by the Appellant. In answering this, first it is appropriate to consider the parliamentary debate in respect of this provision. In Parliament the then Honourable Minister Dato’ Sri Azalina Othman Said said in response to a question posed as follows: Yang Berhormat tanya saya tentang perkataan ‘and’ dalam hujung seksyen 39B (2A) (d). Dasar yang telah ditentulah ialah supaya perenggan (d) menjadi sesuatu yang kehendak kepada mandatori iaitu perlu dipenuhi sekiranya mahkamah ingin mempertimbangkan untuk menjatuhkan hukuman penjara 26 seumur hidup. Dalam hal ini, (a), (b) dan (c) – (a), (b), (c) dibaca secara (sic) injunctive tetapi akan dibaca secara conjunctive dengan (d). Maknanya (d) itu adalah keperluan utama untuk hakim menggunakan kuasa budi bicara.

The Honourable Minister also said: Kerajaan tidak bersetuju dengan penggantian perkataan ‘and’ dengan perkataan ‘or’ di akhir frasa (2A) (c). Diperhatikan bahawa terletaknya perkataan ‘and’ di akhir fasal (2A) (c) bermaksud mahkamah hendaklah mengambil fasal (2A) (d) secara bersama atau conjunctive dengan salah satu daripada (2A) (a), (b) atau (c) atau mana-mana kombinasi daripada ketiga-tiganya. Dalam kata lain, pertimbangkan terhadap fasal (2A) (d) adalah wajib dalam setiap kes di mana mahkamah membuat pertimbangan sama ada hendak menjatuhkan hukuman penjara seumur hidup dengan sebatan.

In the Hansard the same Honourable Minister explained as follows: Kerajaan tidak bersetuju dengan cadangan untuk mengeluarkan perkataan ‘only’ dalam fasal (2A) dan juga tidak bersetuju dengan pindaan hukuman yang dicadangkan. Kerajaan berpandangan bahawa pengeluaran perkataan ‘only’ tersebut akan membuka luas faktor-faktor yang boleh diambil kira oleh mahkamah dalam memutuskan hukuman. Keadaan ini juga akan membawa kepada situasi ketidakseragaman dalam hukuman sebagaimana berlakunya sebelum tahun 1983.

And the Honourable Minister also said: Diperhatikan di sini bahawa faktor-faktor (a), (b) dan (c) berkaitan dengan kesalahan spesifik yang telah pun dilakukan oleh tertuduh. Hanya faktor (d) yang berkaitan dengan satu kelebihan yang boleh diperolehi agensi penguatkuasaan dalam usaha mengendalikan pengedaran dadah. Oleh itu, faktor (d) harus wajib dipertimbangkan oleh mahkamah jika niat dan semangat di sebalik pindaan ini hendak dizahirkan iaitu memperkasa agensi penguat kuasa dalam memerangi pengedaran dadah dan melindungi kepentingan masyarakat. 27

In this regard, it is our finding the reference to Hansard as an aid to interpretation of a statutory provision is well settled. As such we could not see any reasons to hesitate to do the same. (See the Federal Court’s decisions of Lau Keen Fai v Lim Ban Kay @ Lim Chiam Boon & Anor [2012] 1 CLJ 569 and Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345).

Based on the reason explained, we find that the Appellant must also satisfy the provision of s. 39B (2A) (d) of the Act in order to be considered for the sentence of life imprisonment.

As such, we now turn to the issue whether the Appellant could resort to the above provision. In the present appeal however we could not agree with the Appellant that she had assisted the Customs officers in any manner to invoke the operation of the statutory provision in her favour. As explained, her information about Daymen and Stanly to the Customs officers did not render much assistance in disrupting drug trafficking activities within or outside Malaysia, a requirement needed to be satisfied in this provision. We reiterate the finding that without the full names of the two gentlemen being given, no meaningful investigation could have been done by the Customs officers. As indicated too, the Appellant failed to provide further details about the two gentlemen for the Customs officers to mount a serious concerted effort in tracing both of them so that drug trafficking could be disrupted. Although the Appellant’s mother testified that when she arrived in Malaysia she had talked to Daymen through the phone, PW 11, the replacement IO’s investigation on his own initiative showed that the phone number given did not belong to anyone named Daymen. There is also no 28 evidence that Daymen was arrested at any point of time. And the lack of information given regarding Daymen to the Customs made it difficult for such arrest to be made. As such our finding concludes that the Appellant cannot rely on this statutory provision to be meted life imprisonment. The only appropriate sentence on conviction is the death penalty. Conclusion

Based on the findings and reasons explained herein, we are without doubt that the High Court’s findings on the Appellant’s conviction should be affirmed. However in respect of sentence, we would allow the cross appeal of the prosecution. The sentence of life imprisonment imposed by the High Court with respect cannot be sustained because of the reasons explained. Accordingly the sentence of life imprisonment is set aside and replaced with the death penalty on the Appellant. Dated: 23rd June 2020 Sgd ABU BAKAR JAIS Judge Court of Appeal Malaysia For the Appellant: Tan Choon Hong & Andrew Pastors (Messrs Tan Choon Hong & Associates) For the Respondent: Gan Chee Keong, Deputy Public Prosecutor (Attorney General’s Chambers)