(c) Let us now peruse briefly at the relevant parts of the evidence regarding the current case where every opportunity was made available to the appellant to inspect the bag. It was noticeable that there was no suggestion by the defence that the appellant had enquired from the person who handed the two boxes to him or such a suggestion was made to any of the prosecution’s witnesses of the contents. He was in a position to examine the contents of the bag entrusted by that Faruk before it was checked in but failed to do so. He was clearly guilty of wilful blindness (see Hoh Bon Tong v Public Prosecutor [2010] 5 CLJ 240 (CA) and Public Prosecutor v Amil bin Akmad [2007] 5 MLJ 561 (CA). In Hoh Bon Tong v Public Prosecutor when discussing this defence held that: The defence of innocent carrier must necessarily bring into the picture the concept of wilful blindness. And according to Yong Pung How CJ (Singapore) in Public Prosecutor v Hla Win [1995] 2 SLR 424 (at p 438), ‘the concept of wilful blindness qualifies the requirement of knowledge’. And His Lordship continued further by saying (at the same page): As Professor Glanville Williams aptly remarked in this Texbook on Criminal Law, at p 125: ….. the strict requirement of knowledge is qualified by the doctrine of wilful blindness. This is meant to deal with those whose philosophy is: ‘Where ignorance is bliss, ‘tis folly to be wise’. To argue away inconvenient truth is a human failing. If a person deliberately ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know, he is taken to know’. 13 Continuing at the same page, His Lordship said: In Ubaka v PP [1995] 1 SLR 267, the principles laid down in Warner v Metropolitan Police Commissioner [1968] 2 All ER 356; [1968] 2 WLR 1303 and modified in Tan Ah Tee v PP [1980] 1 MLJ 49 were applied by the trial judge. In its grounds of judgment, this court quoted the following passage by the trial judge: Ignorance is a defence when there is no reason for suspicion and no right and opportunity of examination, and ignorance simpliciter is not enough. [16] Such is the position in law of what “innocent carrier” is. With due respect, contrary to the submission of learned counsel for the appellant, that the learned High Court Judge had failed to adequately consider the defence of innocent carrier, we found that her ladyship had indeed considered substantially such defence at pages 29 - 30 and 32 to 34 of her grounds of judgment when she narrated the appellant’s defence. At pages 32 to 34 her ladyship stated the following: “ In essence, the defence of the accused was that she was an innocent carrier. She had no knowledge of the subject drugs found inside exhibit P-14 in question. She was informed by Gomez as well as Ahtung that inside the bag were only clothes samples and lady’s accessories. She only knew the presence of the subject drugs when the authorities opened and found a concealed compartment inside 14 exhibit-14 and told her that the silver package placed hidden inside the sealed compartment was filled with dangerous drugs and she agreed that she reacted surprised because Gomez or Ahtung never told her about the presence of drugs inside the luggage and felt afraid because she knew that drugs are harmful to humans. In her defence, the accused said Gomez is in the boutique business as well as cloth supplier. She had known and worked with Gomez for a year as a courier to deliver a luggage with clothes samples and lady’s accessories to designated clients of Gomez around Asia. For this simple errand the accused was paid handsomely with all expenses covered for the entire trip in total for the sum of RMB6,000 which is in RM3,814.01. This job entails considerable travelling to most of the Asian region in so far, since working with Gomez she had travelled twice to Hong Kong, Thailand, Philippines, once to Laos and inclusive of this trip to Malaysia for the third time. Essentially, her task is only to bring a luggage of cloth sampling to each designated destination instructed by Gomez (or Ahtung in cases of where Gomez is away from Malaysia i.e. Africa). This luggage upon arrival at each designated country will be handed over to the informed client of Gomez who would come to pick of the luggage at the hotel. The hotel she stayed at had earlier been booked by Gomez but will only be known to her upon her arrival acknowledgment via mobile call to Gomez at the designated city. Gomez will then inform his client to pick the luggage at the choiced hotel for the accused to stay. 15 The client will come to pick the luggage from the accused and leaves the hotel. The accused alluded to the series of steps taken in each of the designated destination she undertook. In this trip she was asked to stay overnight in Kota Kinabalu before flying the next day to Kuala Lumpur. She said her flight ticket to Kuala Lumpur is yet to be purchased and upon arrival at Kuala Lumpur, she is to contact Ahtung whereby she will be informed of which hotel to stay hence the client will collect the luggage thereto”. [17] Having done so, she gave her analytical view: “ Firstly, this was against the normal cost for carrying out such simple task, unless it was for something unlawful. An express service the likes of DHL or services equalvalent in China, would have done the job far cheaper, better and speedier. Secondly, the accused agreed that the samples of clothes that she brought are not exclusive, in fact from the exhibits tendered they look most ordinary. Therefore, one would very well ask oneself if these samples of clothes are not exclusive or valuable or expensive that requires extra care to handle, why the need for personal courier unless something unlawful. Thirdly, measured tread taken by Gomez just to hand over a luggage supposedly only to contain clothes sampling to his client appears over-board unless something unlawful. The clandestine meetings at McDonald nearby train station to collect a luggage instead of in Gomez office as she testified earlier which is also nearby the train station shows something unlawful. 16 The background of the accused revealed that she was quite capable of taking care of herself. She had High School education, understands and speaks simple English, Since working with Gomez for one year she had travelled extensively and also did modelling as part time; she was hardly a naïve or a gullible person. In view of her background and experience, her claim to have reposed such a high degree of trust in Gomez, not to mention Ahtung was implausible. There was little reason for her to blindly believe Gomez or much less Ahtung. The former she had known only one year and the latter she was in contact with was only when the former was indisposed and the latter took over. She agreed that she does not know Ahtung very well but yet because she and Gomez were friends therefore she trust Ahtung. There was nothing in her evidence to show that both she and Gomez were close friends except that she had been working for him for a year, In fact, she neither knew Gomez’s company’s name nor ever been to Gomez’s office”. [18] Her ladyship even bore in mind Yu Jing’s case: “Given that there is similar facts evidence with another case i.e BKI- 45A-8/10-2014 PP vs. YU JING with similar modus operandi, which I am mindful of; however looking into all the surrounding circumstances of both facts being presented respectively, I am of the view that the inferences taken would be in favour to the prosecution than the defence i.e. the probability of the accused deliberately ‘shuts her eyes’ to the obvious, because she doesn’t want to know, of the apparent drug syndicate because the pay and perks inclusive of the chance to travel to the cities of Asia were good. The time was flexible that she could increase her earning by doing part time job. In the court’s finding, the conduct of the accused as narrated by her evidence displayed nothing shot of wilful blindness towards the 17 contents inside the bag, exhibit P-14. The court referred to the case of PP v HLa Win [1995] 2SLR, Yong Peng How CJ stated as follows:- “ The concept of wilful blindness qualifies the requirement of knowledge….. [19] On the failure of the IO, PW6, to carry out proper investigation on “Gomez” is hand phone number, the following was her ladyship’s finding. “ PW6 gave reasons that the accused told her that Gomez was presently in Africa. The explanation given by the IO that she could not do further investigation in respect of the phone number due to it being an oversea number, therefore the problems and constraints of logistics information added with only the given name ‘Gomez’ on its own, without his full name and address would not be able to assist her investigation. In this matter if this court was to accede to counsel’s contention it would mean that every time an accused drops names without any sufficient particulars e.g. the accused’s full name and either his residence or office address will only lead to the edge of the world on a wild goose chase. That will not be to carry out investigation with a view to prove the case beyond reasonable doubt but to prove the case beyond a shadow of a doubt. (See Ali Hosseinzadeh Bashir v PP (Criminal Appeal No: B-05-36-211) ”. [20] Having perused the evidence and the grounds of judgment of the learned High Court Judge, we found there was no basis for the submission made by learned counsel for the appellant that her ladyship had failed to consider the defence of innocent carrier by the appellant. In fact as shown 18 earlier her ladyship had been very detail in her narration. Her ladyship had considered every step or action taken by the appellant in carrying out her “job” for Gomez. We also opined that the case of P.P v Yu Jing [2015] MLJU 2080 did not help the appellant’s case as she was convicted by the High Court. On appeal, the Court of Appellant had affirmed the conviction and sentence by the High Court against Yu Jing as reported in Yu Jing v P.P [2017] MLJU 324. The appellant here is not an illiterate person. As expressed by this court in Yu Jing’s case, supra “any reasonable person of average intelligence and honesty ought to have been suspicious about the nature of the delivery and the things that were to be carried and delivered across international border under the instructions of 2 negro men not known to her”. Although the appellant claimed that she knew Gomez and Gomez was her friend, but the evidence showed that she had known him for only one year, and she did not even know his full name, his office or his company’s name! [21] We also found no reason to disagree with the learned High Court Judge on the issue of knowledge and wilful blindness. The appellant in our view had ample times and opportunities to check P-14 thoroughly, but she chose not to. No doubt that the drugs were well hidden from view but that does not mean the appellant had no knowledge. In fact we noted that has been the normal defence made by drug mules to escape conviction. 19 Germane to this point was the decision of this court in Ali Hosseinzadeh Bashir v PP[2015] 1 CLJ 918 as cited by the learned DPP : “ [40] The argument is that since the drugs were hidden from view the appellant could not have known of their presence. The answer to this contention is the familiar decision of the Singapore Court of Appeal in Zulfikar Mustaffah v. PP [2001] 1 SLR 633 which the Federal Court cited with approval in PP v. Abdul Rahman Akif [2007] 4 CLJ 337. We are quite surprised that counsel had pursued this line of argument. We reproduce below what the Court of Appeal said at p.639: “ For the element of ‘possession’ (within the meaning of the Misuse of Drugs Act) to be established, it must not only be shown that the accused had physical control of the drugs at the relevant time; the prosecution must also prove that the accused possessed the requisite knowledge as to the contents of what he was carrying: see Warner v. Metropolitan Police Commissioner [1969] 2 AC 256; Tan Ah Tee & Anor v. PP [1978] 1 LNS 193; [1978 – 79] SLR 211; [1980] 1 MLJ 49. In the course of the appeal before us, counsel for the appellant relied heavily on the fact that the contents of the bundles were securely wrapped in newspapers and could not be identified. We were accordingly invited to draw the inference that the appellant had no knowledge of the contents of the bundles. We were unable to accede to this request. While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlers could escape liability simply by ensuring that any drugs coming into their possession are firstly securely sealed in opaque wrappings. Rather the court must appraise the entire facts of the case 20 to see if the accused’s claim to ignorance is credible. As Yong Pung How CJ remarked in PP v. Hla Win [1995] 2 SLR 424 (at p.438): In the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses”. [22] We could not agree more with Ali Hosseinzadeh’s case, supra. Conclusion [23] For the reasons stated above, we found no reason to disagree with the learned High Court Judge. There was no merit in the issues raised and we found that the conviction was safe. We therefore dismissed the appeal and affirmed the conviction and sentence. Dated: 18 Julai 2017 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia Counsels/Solicitors: RIZWANDEAN BIN M BORHAN ( Yusri & Rizwan ) Lot 16, 2nd Floor, Block B, Asia City Phase 1, Kota Kinabalu, SABAH. For the Respondent: AHMAD SAZILEE BIN ABDUL KHAIRI No. 45, Persiaran Perdana, Precinct 4, 62100 PUTRAJAYA.