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(i) The learned High Court Judge’s failure to do a maximum evaluation of the evidence and in particular did not do a proper assessment of the evidence of PW3, PW5 and the Investigating Officer (PW6).
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Court of Appeal of Malaysia27 Sept 2018B-05(M)-423-09/2017
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“llant, a Nigerian national, was charged and convicted by the High Court in Shah Alam on 30/6/2017 for trafficking in 226.5 grams of Methamphetamine which is an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and sentenced to death under section 39B (2) of the Act. That was the first charge. The”
“rtinent to note that the suspicious conduct of the appellant brought up in the evidence of PW3 is relevant evidence, as also raised by the learned High Court Judge, against her under section 8 of the Evidence Act 1950 as was held in Parlan Dadeh v Public Prosecutor (2009) 1 CLJ 717 and for which she must explain under”
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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: B-05(M)-423-09/2017 BETWEEN EDITH AKU GEORGE (W/N NIGERIA) … APPELLANT (NO. PASPOT: A 02642977) AND PUBLIC PROSECUTOR … RESPONDENT (In The High Court Of Shah Alam, Selangor In The Matter Of Criminal Trial No.: 45A-129-06/2013 Between Public Prosecutor And Edith Aku George (W/n Nigeria) (No. Paspot: A 02642977)) Coram: Mohtarudin Bin Baki, JCA Abdul Karim Bin Abdul Jalil, JCA Rhodzariah Binti Bujang, JCA 2 GROUNDS OF JUDGMENT
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(1) The appellant, a Nigerian national, was charged and convicted by the High Court in Shah Alam on 30/6/2017 for trafficking in 226.5 grams of Methamphetamine which is an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and sentenced to death under section 39B (2) of the Act. That was the first charge. The second charge, for which she was similarly convicted and sentenced to death was in respect of 568.1 grams of Methamphetamine. Both offences were committed on the same date, time and place which is Kuala Lumpur International Airport (“KLIA”) and the charges, in Bahasa Malaysia reads as follows: 1st Charge “Bahawa kamu, pada 27 Ogos 2012, jam lebih kurang 7.45 petang, di kawasan laluan keluar, di Kaunter Pemeriksaan Kastam, Ketibaan Antarabangsa, Aras 3, MTB, KLIA dalam daerah Sepang, di dalam negeri Selangor Darul Ehsan, telah memperedarkan dadah berbahaya, iaitu 226.5 gram Methamphetamine; dan oleh yang demikian, 3 kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan bolah dihukum di bawah seksyen 39B(2) Akta yang sama.” 2nd Charge “Bahawa kamu, pada 27 Ogos 2012, jam lebih kurang 7.45 petang, di kawasan laluan keluar, di Kaunter Pemeriksaan Kastam, Ketibaan Antarabangsa, Aras 3, MTB, KLIA dalam daerah Sepang, di dalam negeri Selangor Darul Ehsan, telah memperedarkan dadah berbahaya, iaitu 568.1 gram Methamphetamine; dan oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” The appellant appealed against the aforesaid convictions and sentences to this Court but both appeals were dismissed by us on 27/9/2018. 4 The Prosecution Case
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(2) The discovery of the impugned drugs was precipitated by the suspicion of PW3, a policeman on duty at the baggage carousel of KLIA’s international arrival hall which he said was aroused because the appellant was behaving suspiciously, that is, appearing uncomfortable, stopping intermittently and looking left and right whilst going towards the exit of the Custom’s examination area of the Airport. The appellant was pulling a trolley bag and carrying a handbag at that time. PW3 asked the appellant to scan her bags but no suspicious image was seen in either bags. She was then brought to the Narcotics Office of the Airport where another policewoman (PW5) did a physical examination of the appellant. PW5 found a package stitched to the accused’s underwear which contained 2 packets of crystalline substance suspected to be drugs. PW3’s further physical examination of the trolley bag discovered three plastic packets of the same substance at the bottom of the bag which he retrieved after prying it open. The chemist (PW1) found the two packets to be the type of drug and of the weight as stated in the first charge and the three packets to be that as stated in the second charge. 5 Based on the salient facts above the learned High Court Judge found that the appellant was in possession and had knowledge of the said drugs because of her conduct. The presumption of trafficking under section 37(da) of the DDA was raised by His Lordship against her and he also used the definition of trafficking under section 2 of the DDA. The appellant was thus called to enter her defence to the charges. The Defence
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(3) The defence as narrated by the learned High Court Judge is this. The appellant said this was her second trip to Malaysia. Both trips were to buy goods for her business back home which was selling clothes, shoes and toys under the name Edith Fashion. Before this trip and needing capital for the business, she contacted a friend named Becky to borrow money from her. Becky agreed but said she had to help another acquaintance of theirs, Ann to bring something to Malaysia. When she called Ann, the latter told her that her friend, one Uche would give her something to bring to Malaysia. Uche met her at a restaurant and passed her the said trolley bag and a plastic bag which she later, upon inspection found to 6 contain an underwear with something inside its lining and a Malaysian handphone Sim card. When she called Uche to ask about the underwear, he told her that it was just precious stones which were expensive – nothing illegal so she must put on the underwear to keep the stones safe. As for the Sim card, Uche said it contained his friend’s contact in Malaysia who would collect the underwear from her. According to the appellant she had told PW5 about the precious stones in the underwear and disclaimed any knowledge of the drugs found in the bag and the underwear. The learned High Court Judge found the defence to be a bare denial for it is not possible that she did not know the drugs in the underwear and in the bag. Her defence was just an afterthought, said His Lordship for how could she trust Uche whom she just knew and to give the package to someone she did not even know in Malaysia. His Lordship also commented on the demeanour of the appellant and said she was not a witness of truth. He concluded that the defence has failed to raise a reasonable doubt on the prosecution’s case and failed to rebut the presumption under section 37(da) on a balance of probability. 7 The Appeal
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(4) Before us, learned counsel for the appellant submitted on three issues which are:
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(i) The learned High Court Judge’s failure to do a maximum evaluation of the evidence and in particular did not do a proper assessment of the evidence of PW3, PW5 and the Investigating Officer (PW6).
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(ii) The learned High Court Judge misdirected himself on the section 37(da) and section 2 of DDA.
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(iii) The learned High Court Judge failed to consider the defence of the appellant. Maximum Evaluation Of Prosecution Evidence
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(5) Learned counsel referred to PW3’s evidence at pages 52 and 53 at Volume 2A of the Appeal Record where he agreed that the appellant was not reluctant when asked to scan the bags and that she cooperated when asked to follow PW5 to do body search. Then his evidence at page 56 of the same volume of the Appeal Record where he said that with a naked eye one 8 would not be able to see what was at the bottom of the bag and at page 59 he agreed in re-examination that the appellant would not know about the three packages in the trolley bag. That evidence is reproduced below: “Q: Kamu dicadangkan Tertuduh tidak mempunyai apa-apa pengetahuan dengan seluar dalam dan 3 bungkusan dalam beg P23. Kamu setuju, jelaskan? Saya setuju jika Tertuduh tidak tahu apa ada dalam bungkusan tersebut. Q: Sila jelaskan sekali lagi? Tertuduh tidak tahu apa ada dalam bungkusan tersebut. Q: Bagaimana kamu tahu Tertuduh tidak tahu kandungan bungkusan tersebut? Semasa bungkusan tersebut yang saya jumpa dalam keadaan berbungkus tanpa koyakan. Bila saya toreh barulah terjumpa bahan Kristal disyaki dadah.” 9 PW5 also agreed at pages 74 and 75 of the same volume of the Appeal Record that without being cut open one would not know the content of the said 5 packages. As for the Investigating Officer’s evidence, learned counsel referred to his failure to investigate the Sim card from the telecommunication service provider Digi (see pages 105 to 106 of the Appeal Record Volume 2B). With respect, we failed to appreciate the complaint here. It is of course obvious that the said 5 packages were concealed and their content would only be revealed when the packages were cut open and thus the fact that they were so concealed does not negate knowledge on the part of the appellant of their content for if it were so many a drug trafficker would escape the long arm of the law with relative ease. As for the Investigating Officer’s failure to check on the Digi Sim card, we see nothing detrimental in that omission because even if there was such a contact person in Malaysia, the appellant’s own evidence in her caution statement (ExD63) said she would be paid USD2000 by the contact person upon delivery of the stones in the underwear although she denied this in her evidence in court. The existence of that contact person does not adversely affect the finding of 10 knowledge made against her which would bring us to the second issue. But before that it is pertinent to note that the suspicious conduct of the appellant brought up in the evidence of PW3 is relevant evidence, as also raised by the learned High Court Judge, against her under section 8 of the Evidence Act 1950 as was held in Parlan Dadeh v Public Prosecutor (2009) 1 CLJ 717 and for which she must explain under section 9 of the said Act. There was no such satisfactory explanation given by the appellant in this case. Presumption Of Trafficking
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(6) We acknowledged that there appears to be a certain inconsistency in the judgment of His Lordship when he held at page 13 of Volume 1 of the Appeal Record as follows: “[26] Mahkamah juga membuat dapatan yang affirmatif bahawa Tertuduh memiliki dadah berbahaya tersebut. Seksyen 37(da) ADB 1952 juga diguna pakai (Ibrahim Mohamad v PP [2014] 4 CLJ 113). 11 [27] Oleh itu, Mahkamah berpuas hati bahawa Tertuduh mengedar dadah berbahaya tersebut menurut sek.2 ADB 1952.” In other words, His Lordship appears to rely on both the presumption on trafficking and the definition section of the DDA on trafficking. Learned counsel also questioned the identification of the three issues at the close of the defence as laid out at page 18 of Volume 1 as follows: “J. Isu-Isu Yang Perlu Diputuskan Di Akhir Kes [46] Di akhir kes, Mahkamah perlu menentukan isu-isu berikut:
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46.1 Sama ada pembelaan dapat menimbulkan keraguan yang munasabah ke atas kes pendakwaan?
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46.2 Sama ada pembelaan dapat mematahkan anggapan di bawah seksyen 37(da) ADB, 1962? dan 12
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46.3 Sama ada pendakwaan telah membuktikan kesnya melampaui keraguan yang munasabah?” With respect, we would have to agree that in defining the said issues, the learned High Court Judge did not specifically tailor them to the defence raised by the appellant but just to the general duty placed on his shoulders in coming to a determination of this case. However, since he had made a specific finding that the said presumption was not rebutted and that no reasonable doubt had been raised against the prosecution case, which on the clear and overwhelming evidence of possession in this case, especially in respect of the drugs found in the underwear, the complaint above was not fatal to the prosecution case against the appellant. Another evidence which must be considered is the fact that the drugs found were not some small minuscule amount which could be inferred was for her own personal consumption. As held in Ong Ah Chuan v Public Prosecutor (1981)1 MLJ 64 the huge quantity attracts the inference that they were indeed for trafficking. Therefore, in this case it is not just the ‘mere act of carrying’ as submitted by learned counsel relying on Public Prosecutor v Abdul Manaf 13 bin Muhamad Hassan (2006) 2 CLJ 129 but also the manner in which the drugs were being carried and concealed including its the weight which the court must factor in when considering the charge. As for the earlier inconsistency complained of, learned counsel had on this issue referred us to this court’s decision in Rahaimi Dollah lwn Pendakwa Raya (2018) MLRAU 1 where the trial judge had made a positive finding of actual possession but yet still invoked the presumptions under section 37(d) and 37 (da) as well as the definition of trafficking under section 2 of the DDA. This according to his counsel was prejudicial to the appellant in the said case. Ahmadi Asnawi JCA observed that on the facts of the cited case, the trial judge having found actual possession of the drugs, the raising of the presumption was not necessary and that: “Ia merupakan satu verbosity berlebihan yang tidak membawa apa-apa kesan ke atas dapatan asas hakim bicara bahawa perayu mempunyai milikan sebenar atau fizikal atau mens rea ke atas dadah tersebut dan telah 14 mengedarkan dadah tersebut secara terus mengikut definisi pengedaran di bawah s 2, ADB. [39] Tambahan pula, adalah undang-undang yang mantap (‘trite’) bahawa hakim bicara dibenarkan di sisi undang-undang untuk menganalisis kesemua pilihan-pilihan yang ada di hadapannya untuk menentukan kaedah akan bagaimana kedua-dua elemen ‘pemilikan’ dan ‘pengedaran’ dadah tersebut sewajarnya dibuktikan. Maka Mahkamah Persekutuan dalam kes Raman Kunjiraman v. PP [2005] 2 MLRA 221; [2014] 9 CLJ 915 di perenggan 30, ms 929 telah menyatakan: “…. Contrary to the argument of counsel, there is nothing to prevent the learned trial judge from analysing all the alternatives available to him under the Act. The learned trial judge has not breached the rule of double presumptions by taking into consideration the various alternatives in the reservoir of choices or alternatives available to him to determine the culpability of the appellant. Judges 15 may expatiate on the various alternatives available without the need to incur the obloquy of counsel”. [40] Dengan itu, kami dapati bahawa alasan rayuan ini tidak mempunyai sebarang merit untuk dipertimbangkan.” We would adopt the same reasoning here to say that the raising of the presumption on trafficking was a mere verbosity, which conclusion we believe is justified by the manner in which the drugs were brought into our country. As for using the definition under section 2 of the DDA the court in Rahaimi’s case (supra) found that it was wrong because the appellant was seen taking the drugs and throwing them in the toilet bowl when the police raided the premises. The court found that the element of trafficking was not proved and he was therefore acquitted by the court. Contrast to the facts in this case, the appellant was not momentarily carrying the drugs, she was wearing the underwear with the drugs stitched in it and carrying the trolley bag with the drugs all the way from Nigeria to Malaysia. That act of hers 16 surely comes squarely within the meaning of ‘carrying’ in the said section. Defence Of The Appellant
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(7) We have to agree with the learned High Court Judge that the defence was nothing but a bare denial and with the submission of the learned Deputy Public Prosecutor that no sufficient Alcontara notice has been given by her. The wearing of the underwear, even if it was true that Uche had told her that the precious stones were not illegal and that it must be worn to prevent the stones from being stolen, is totally illogical. This we say because the stones could be put in her handbag and not have to be concealed in the underwear. It could even be put in the trolley bag for it must be remembered that the said bag was not checked in but hand-carried by her. Another equally incredulous aspect of the defence is why would Uche gave her an empty trolley bag to give to his friend in Malaysia? As alluded to earlier the appellant did say in her caution statement that she would be paid upon making the delivery and speaking of the caution statement, we also appreciate the fact that the learned High Court Judge did not make any specific 17 reference to the caution statement in His Lordship’s judgment. However, we noted the substantially similar content of both the caution statement and her oral evidence in court. The learned High Court Judge having evaluated the oral testimony and even found the appellant to be not a witness of truth, His Lordship did not therefore commit any fatal error in failing to specifically address the defence as per the caution statement. In this regard we would apply the ratio made by the Federal Court in Ahmad Najib Aris v Public Prosecutor (2009) 2 CLJ 800 where the court held at paragraph 20 page 818 that: “Power Of Appellate To Review Or To Re-evaluate All Available Evidence [20] 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 18 specific findings and with no reasons for the findings. In a case involving purely a question of fact, the Court of Appeal is free to determine whether or not the various findings of the trial Court are correct. (See Mohamed Mokhtar v. PP [1972] 1 MLJ 122). In the present case even though the Court of Appeal took the view that the High Court judgment was of no assistance, it is also salutary to remind ourselves of the advice given by Gopal Sri Ram JCA (as he then was) in the Federal Court case of Tunde Apatira & Ors (2001) 1 CLJ 381 where His Lordship said at page 390: So it comes to this. As a general rule this court will, in the normal course of events, quash a conviction where there has been a misdirection. Exceptionally, a conviction will be upheld despite a misdirection where this court is satisfied that a reasonable tribunal would have convicted the accused on the available evidence on a proper direction. The decision of this court in Alcontara a/l Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705 exemplifies the general rule, while 19 that in Khoo Hi Chiang v. Public Prosecutor [1994] 2 CLJ 151 illustrates the exception.” (emphasis added)
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(8) On the evidence adduced against the appellant and the extremely weak defence as found by the learned High Court Judge and us upon our evaluation of the same, we would venture to say that any reasonable tribunal would have arrived at the same decision to convict her of the said two charges. Her appeal was therefore dismissed and the convictions and sentences passed affirmed. Signed. RHODZARIAH BINTI BUJANG Judge Court of Appeal Malaysia Putrajaya Date: 9 April 2019 Note: This copy of the Court’s Ground of Judgment is subject to editorial revision. 20 Parties appearing: For the Appellant: Tetuan Alfred Egin & Co, Peguamcara dan Peguambela Puan N. Ratnavathy Viknes Ratna & Co. Peguamcara dan Peguambela For the Respondent: Tuan Hamdan bin Hamzah Timbalan Pendakwa Raya Jabatan Peguam Negara Cases referred to:
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(1) Parlan Dadeh v Public Prosecutor (2009) 1 CLJ 717;
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(2) Ong Ah Chuan v Public Prosecutor (1981)1 MLJ 64;
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(3) Public Prosecutor v Abdul Manaf bin Muhamad Hassan
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(2006) 2 CLJ 129;
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(4) Rahaimi Dollah lwn Pendakwa Raya (2018) MLRAU 1;
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(5) Ahmad Najib Aris v Public Prosecutor (2009) 2 CLJ 800.
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