Chandrasekar Krishnamoorthy v Pendakwa Raya (B-05(SH)-393-08/2024)

This is an appeal by the Appellant against his conviction and sentence by the High Court for trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”).

At the close of the prosecution’s case, the Appellant was acquitted and discharged. On appeal by the Prosecution, the Court of Appeal allowed the appeal and ordered the Appellant to enter his defence on a finding of presumption of knowledge under section 37(d) DDA read together with the act of trafficking as defined under section 2 of the same Act.

Upon the defence being called, the learned High Court Judge found that the Appellant had failed to raise a reasonable doubt and accordingly convicted and sentenced him. The present appeal is directed against that decision.

The Charge preferred against the Appellant reads: “Bahawa kamu pada 14 Mei 2018, lebih kurang jam 7.15 pagi di Cawangan Pemeriksaan Penumpang 1 (CPP1) Balai Ketibaan Lapangan Terbang Antarabangsa Kuala Lumpur (KLIA) dalam Daerah Sepang, dalam Negeri Selangor Darul Ehsan, telah didapati mengedar dadah berbahaya iaitu Ketamine seberat 2376 gram dan dengan itu kamu telah 3 melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

The facts of the prosecution’s case may be summarised as follows.

On 14.05.2018 at about 7.20 a.m., PW4, a Customs Officer on duty at the Arrival Hall, Passenger Inspection Section, Kuala Lumpur International Airport (KLIA), observed a suspicious image of a luggage (P14) on the scanning machine. The Appellant was then instructed to identify and retrieve P14 for inspection.

The Appellant complied and opened P14 using a key in his possession. The contents of P14, which consisted of clothing, were removed and P14 was scanned again. Despite the removal of the contents, the scan image remained suspicious.

PW4 then requested assistance from PW5 and the Appellant was escorted to the Customs Office at KLIA. Officers from the Narcotics Enforcement Division were contacted.

At approximately 9.00 a.m., enforcement officers arrived and a preliminary examination was conducted using a Trunac machine, which indicated the presence of ketamine. No full dismantling of P14 was carried out at that stage.

PW4 subsequently instructed PW5 to lodge a police report. Thereafter, the Investigating Officer (PW6) arrived and took the Appellant for remand process.

Upon completion of the remand process, the Appellant was brought back at about 2.00 p.m. The Appellant, together with PW4, PW5 and other enforcement officers, proceeded to the Enforcement Office at the KLIA Cargo Complex for a detailed examination of P14.

At the Enforcement Office, P14 was dismantled in the presence of the Appellant. The examination revealed a concealed compartment within the lining of P14. The following items were recovered and marked:

A piece of cloth lining;

A plastic bag lining; and

A dark blue carbon-wrapped package. [13] The said package was weighed and subjected to a Trunac test, which returned a positive result for ketamine. The exhibits were duly marked, sealed, and handed over to the Investigating Officer. The exhibits were subsequently sent to the chemist for analysis. The chemist (SP1) confirmed that the substance was ketamine with a net weight of 2,376 grams. [14] At all material times, the prosecution’s evidence was that P14 and its contents remained under the control and custody of PW4 until they were properly handed over to the Investigating Officer. The Issues [15] In essence, the Appellant raised three principal grounds: i. An alleged break in the chain of evidence; ii. The alleged inadequacy of the investigation; and iii. An alleged misdirection by the learned High Court Judge in evaluating the defence, particularly the defence of innocent carrier. [16] The Respondent, in its submissions, contended that these arguments were devoid of merit and that the real question before this Court is whether the defence had succeeded in raising a reasonable doubt in light of the earlier finding of a prima facie case by a coordinate Court of Appeal. Our Findings [17] At the outset, we must emphasise that the Appellant is precluded from re-litigating issues relating to the establishment of a prima facie case. The earlier decision of the Court of Appeal, which ordered the Appellant to enter his defence, necessarily entailed a finding that all the essential elements of the charge had been established. [18] We are guided by the case of Manimaran a/l Amas v Public Prosecutor [2015] 1 MLJ 18, where the Court of Appeal held that once an accused is called to enter his defence, it necessarily means that all the ingredients of the charge have been established. [19] This principle has also been echoed in PP v Sulaiman bin Saidin [2010] 3 MLJ 383 and Suhailah binti Abdullah v PP [2018] MLJU 1353, which reinforce that the inquiry post-defence is limited in scope where it was held that when the Court of Appeal had made a finding of prima facie what is left to be considered is just whether the accused has successfully cast a reasonable doubt on the prosecution’s case. [20] In such circumstances, the appellate inquiry at this stage is confined to whether the defence has raised a reasonable doubt. It is not open to this Court, being a court of coordinate jurisdiction, to revisit or overturn those earlier findings in the absence of a proper review application. [21] We will now address the issues raised by the Appellant. Alleged Break in Chain of Evidence [22] We find no merit in the Appellant’s contention that there was a break in the chain of custody. The Appellant argued that there existed a gap of approximately two hours during which the whereabouts of P14 were unaccounted for and the exhibits, including the impugned drugs, had yet to be marked, thereby casting doubt on the identity of the substances subsequently analysed by the chemist. [23] It is clear from the evidence that P14 was searched in the presence of the Appellant after the Appellant had been brought back from the remand process. Hence, there is no issue of gap in the chain of evidence nor the identity of the drug seized in dispute. [24] The evidence, when considered in its totality, does not disclose any material break in the chain of custody nor does it give rise to any reasonable doubt as to the integrity or identity of the exhibits sent for analysis. [25] We find that the evidence of SP4, the Raiding Officer, is pivotal. SP4 was the officer directly responsible for the initial observation, detention, inspection, and handling of the Appellant prior to his handover to the Investigating Officer, SP6. [26] Upon a careful evaluation of the evidence of SP6, we are satisfied that at all material times, from the moment of arrest until the completion of the marking of exhibits at the KLIA Enforcement Office, the handling of the exhibits remained continuous and unbroken. The exhibits, together with the Appellant, were never left unattended or unsupervised. [27] We further find that there was no break in the chain of custody from the point of handover by SP4 to SP6 until the exhibits were delivered to the Chemistry Department for analysis. Upon their return, duly sealed by the chemist, the exhibits were safely deposited with the store officer, SP2. Thereafter, the exhibits remained securely preserved and were only removed for production in court. The chemist (SP1) confirmed that the seals remained intact and in good condition. In the circumstances, we are satisfied that the integrity of the exhibits was fully preserved and that the chain of custody remained intact throughout. [28] In any event, given that a prima facie case had already been established we find the defence failed to raise any reasonable doubt on this issue. This ground does not avail the Appellant.

(A) Defence of Innocent Carrier [29] We accept, as a matter of settled law, that the defence of an innocent carrier is a recognised and valid defence in drug trafficking cases. However, as emphasised by the Federal Court in Munuswamy Sundar Raj v Public Prosecutor [2015] 6 MLJ 214 and the Court of Appeal in Venkatesan Chinnasami v Public Prosecutor [2011] 1 LNS 1736, the success of such a defence is inextricably dependent on the particular facts of each case. It is equally well-established that mere assertion of ignorance, without more, is insufficient. The doctrine of wilful blindness operates as a qualification to the requirement of knowledge; an accused who deliberately shuts his eyes to the obvious cannot later disclaim knowledge (see: Public Prosecutor v Hla Win [1995] 2 SLR 424). [30] The Appellant’s principal contention is that he was an innocent carrier, devoid of knowledge that the black plastic bag in his possession contained the impugned drugs. In support, reliance is placed on his lack of education, his prior uneventful entries into Malaysia, the alleged sophisticated concealment of the drugs, and his purported reaction of shock upon discovery. [31] The doctrine of willful blindness imposes an obligation on an accused person to make reasonable inquiries where the circumstances would arouse suspicion. A failure to do so, in the face of such circumstances, will not avail the accused. [32] In the present case, there existed clear suspicious circumstances which ought to have put the Appellant on inquiry. The Appellant’s own evidence was that the bag contained clothing purportedly meant for donation. Yet, it defies logic and commercial sense that a person in India would incur substantial expense to transport such items physically into Malaysia through the Appellant, when the same could have been sent at a significantly lower cost through conventional means. This inherent improbability ought to have triggered inquiry on the part of the Appellant. His failure to do so points irresistibly towards wilful blindness. [33] Further, we find that the Appellant’s account is riddled with material inconsistencies. In his cautioned statement (D35), he stated that P14 was opened and its contents shown to him. Yet, in his oral testimony, he asserted that on this occasion he was not shown the contents and merely informed that P14 contained clothes. [34] This contradiction goes to the very core of the issue of knowledge. It is a material inconsistency which undermines the credibility of the Appellant and demonstrates an attempt to tailor his evidence to suit his defence. In the premises, his assertion of ignorance cannot be accepted. [35] In these circumstances, we agree with the learned High Court Judge that the Appellant had, at the very least, deliberately shut his eyes to the obvious. The defence of innocent carrier is therefore untenable.

(B) The Alleged Deficiencies in Investigation (Alcontara Notice Issue) [36] The Appellant further contends that the investigation conducted by SP6 and SP7 was deficient, in particular for failing to verify the existence of one “Boy Chennai”. [37] Upon scrutiny of the evidence, it is clear that the Appellant himself provided only scant and wholly inadequate details regarding this individual. In his cautioned statements (D35 and D36), he merely identified a person named “Navasath”, saved as “Boy Chennai” in his phone, without any full name, address, or identifying particulars. [38] In such circumstances, the criticism levelled against the investigating officers is entirely misplaced. The law does not require the authorities to embark on speculative or futile inquiries based on vague and unsubstantiated information. Any such attempt would amount to no more than a wild goose chase (see: Tobechi Chinonso Madu v PP [2015] MLJU 2038). [39] Fundamentally, the burden lies on the Appellant to rebut the presumption of knowledge on a balance of probabilities. It was therefore incumbent upon him to adduce evidence to substantiate the existence of this alleged individual. His failure to do so is fatal to his contention. [40] Further, the Appellant himself admitted that he did not know who would collect P14 upon arrival in Malaysia. This absence of any concrete detail underscores the impracticability of any further investigation. [41] Accordingly, we find no merit in the allegation that the investigation was inadequate.

(C) Evaluation of the Defence [42] The Appellant’s defence is further undermined by the serious allegations levelled against the enforcement officers, including assertions that the drugs were planted and that he had been framed. [43] Such allegations are grave in nature and require cogent and credible evidence. However, there is a complete absence of any material to suggest any motive or reason for the officers to fabricate evidence against the Appellant to get him convicted particularly in a case involving a capital punishment. Bare assertions of fabrication, without more, cannot be accorded any weight. [44] More significantly, the Appellant has advanced mutually destructive defences. On the one hand, he relies on his cautioned statements to support his claim of being an innocent carrier. On the other hand, he asserts in his oral testimony that he was framed by the authorities. These positions are plainly inconsistent and cannot stand together. [45] The Appellant cannot be permitted to approbate and reprobate, or to blow hot and cold, by adopting inconsistent positions to suit his convenience. This inconsistency strikes at the very root of his credibility and renders his defence wholly unreliable. [46] We would also observe that the findings made by the learned High Court Judge were arrived at with the benefit of the audio-visual advantage of seeing and hearing the witnesses testify. These are findings of fact to which appellate restraint properly applies. We find no reason whatsoever to disturb those findings. [47] In the final analysis, the defence as advanced is inherently inconsistent, unsupported by evidence, and incapable of raising any reasonable doubt. Conclusion [48] Having considered the totality of the evidence before us, we are satisfied that the learned High Court Judge committed no error in concluding that the Appellant possessed the requisite knowledge, or at the very least was wilfully blind to the presence of the drugs. In the circumstances, the defence of innocent carrier is untenable and must fail on the facts of this case. [49] In light of the foregoing reasons and our findings, we find the conviction in all the circumstances of the case to be safe and we accordingly dismiss the appeal against conviction. As for the sentence imposed, we are satisfied that the learned High Court Judge had exercised her discretion judiciously and in accordance with established principles. We find no basis to warrant appellate intervention. The appeal against sentence is likewise dismissed, and the sentence imposed by the High Court is hereby affirmed. Dated: 15 April 2026 Sgd NOORIN BINTI BADARUDDIN Judge Court of Appeal Malaysia LIST OF COUNSELS: Counsel for the Appellant: Jasmine Cheong [Cheong & Maman (Subang Jaya)] Counsel for the Respondent: Sarulatha a/p Paramavathar [Deputy Public Prosecutor