Subparagraph
(iii) Dalam tempoh tugasan SP7, SP8 dan SP9 mereka secara konsisten menegaskan hanya menjaga dan mengawal Tertuduh sahaja. Setiap kali Tertuduh membuang air besar mereka sentiasa berada Bersama Tertuduh. Mereka juga telah menyaksikan Tertuduh mengeluarkan (62) ketulan kapsul melalui pembuangan air besar. Kapsul-kapsul tersebut selepas dibasuh dan dikeringkan ditanda setiap kali pengeluaran. Mereka menafikan menjaga seorang lagi Tertuduh bernama Ezeamama dan menegaskan bahawa Ezeamama dikawal dan dijaga setiap masa oleh anggota-anggota sentri lain dan di dalam pengawasan pegawai penyiasat bernama Inspektor Firdaus. “31. Hal keadaan ini menunjukkan bahawa alegasi pihak pembelaan akan kemungkinan berlaku percampuran kapsul-kapsul tersebut dengan tertuduh Ezeamama adalah tidak berasas. Mahkamah telah berpuas hati bahawa keterangan SP6, SP7, SP8, SP9 dan SP10 adalah konsisten serta menyokong satu sama lain. Mahkamah berpendapat bahawa tidak ada sebab untuk tidak mempercayai keterangan SP6, SP7, SP8, SP9 dan SP10 yang sentiada konsisten dan kredibel. Oleh itu semua perkara yang dibangkitkan oleh pihak pembelaan tidak dapat bantahan dan tidak berasas.” (emphasis added) [38] In this regard, we have no compelling reasons to interfere with the findings of the trial judge which were based on evidence of witnesses and after having assessed their credibility. At this juncture, it is relevant to make reference to the Federal Court case of Amri Ibrahim & Anor v PP [2017] 1 CLJ 617 where Hassan Lah FCJ said this: 20 “[51] It is trite law that the view of the trial judge as to the credibility of a witness must be given proper weight and consideration. An appellate court should be slow in disturbing such finding of fact arrived at by the trial judge, who had the advantage of seeing and hearing the witness, unless there were substantial and compelling reasons for disagreeing (see Herchun Singh & Ors v PP [1969] 1 LNS 52; [1969] 2 MLJ 209) (emphasis added) [39] Further, the failure by the prosecution to tender the search list and the acknowledgment form with regard to the 23 capsules does not affect the identity of these exhibits. The prosecution has established by oral and documentary evidence that the 23 capsules were the capsules excreted by the appellant and thereafter analysed by the chemist. The search list as well as the acknowledgment form were only corroborative evidence. [40] This non tendering of search list had also been discussed by the Federal Court in Isidro Leonardo Quito Cruz v PP [2013] 2 CLJ 1025 at page 1033 where it was opined as follows: “[10] The next issue was on the failure of the arresting officer (PW4) to produce a search and seizure list after the appellant was arrested at the KLIA arrival hall…. “[11] The above issues concerned primarily the findings of fact by the learned judge, which findings had not be questioned by the appellant at the appellate stage. We have considered the findings of the learned trial judge who 21 stated that he had fully evaluated the evidence as adduced by the prosecution on a maximum scale and found that the prosecution had succeeded in proving a prima facie case against the appellant when he was found in actual possession of the drugs in question and had knowledge of them. We found there could not have been any question of doubtful identity of those drugs since the appellant himself had admitted to swallowing them. The flaws of the prosecution case, as submitted by learned counsel must be taken as having been totally evaluated by the learned trial judge when he made a finding of a prima facie case against the appellant. In any event, we are of the view that those so called flaws had in no way vitiated the prosecution case at that prima facie stage. The drugs we also specially packed in small plastic pellets and were discharged from the body of the appellant himself. There could not be in our opinion any doubt in their identity.” (emphasis added) [41] Likewise in the present case, the trial judge had made his finding of fact with regards to the identity of the impugned drugs which includes the drugs in the 23 capsules challenged by counsel by the appellant. The appellant also had admitted swallowing the capsules and as showed earlier there was no break in chain of evidence in respect of all the capsules. Hence, there could not be any doubt as to the identity of the drugs in the present case. [42] In another case, Selvam a/l Arjunan v PP {2012] 4 MLJ 767, the Court of Appeal held that the absence of search list is not fatal to the prosecution’s case. Abdul Malik Ishak JCA, delivering the judgment of the court had this to say: 22 “[34] Next, learned counsel for the appellant submits that SP2 did not prepare a search list and such failure puts the credibility of SP2 at stake. The value of a search list has been emphasised in the case of Pendakwaraya lwn Koh Poay Khoon [1993] MLJU 61; [1993] 3 CLJ 223, at p 232. But what Raja Azlan Shah J (as His Majesty then was) said in San Soo Ha v Public Prosecutor [1968] 1 MLJ 34 at p 35 merits reproduction: The most that can be said about failure to comply with the provision relating to search list is that it may cast doubt upon the bona fides of the parties conducting the search and accordingly afford ground for scrutiny; but if after close scrutiny the court arrives at the conclusion that the stolen articles were recovered from the possession of the accused person, it is obviously no defence to say that the evidence was obtained in an irregular manner. There is nothing in the law which makes such evidence inadmissible (see Bashir Emperor AIR 1932 AII 185; Bhattacharjee Emperor AIR 1940 Cal 85). In the present case the learned president had explore the evidence and came to the conclusion that the stolen articles were recovered from the possession of the appellant. I am therefore unable to see how the failure to prepare a search list by itself would entitle the appellant to an acquittal. “[35] In our judgment, the absence of the search list is not fatal to the prosecution bearing in mind that the appellant was caught red handed with the drugs while riding the Modenas motorcycle alone on the fateful day.” (emphasis added) [43] In the instant case, the trial judge had scrutinised the evidence and demeanour of witnesses and concluded that all the capsules were recovered from the appellant and as such the absence of the search list and the acknowledgment form is immaterial. 23 The issue whether the trial judge has failed to appreciate the defence case [44] Counsel for the appellant also contended that the trial judge had failed to consider the defence thoroughly that the appellant was an innocent carrier and the defence case is not a case of a wilful blindness. [45] Having perused the trial judge’s grounds of judgement, we find that the defence of innocent carrier had been considered sufficiently by the trial judge and found that this defence was without merit. In his finding, the trial judge concluded as follows: “c) Mahkamah tidak bersetuju dengan hujahan pihak pembelaan bahawa tertuduh hanyalah “innocent carrier” ke atas (62) ketulan kapsul yang mengandungi dadah secara telan. Keterangan pembelaan tertuduh yang mempercayai kata-kata Kevin bahawa ketulan kapsul-kapsul tersebut mengandungi serbuk ubat muscular dan mengatakan rasanya seperti ubat muscular dan kemudiannya terus menelannya secara sukarela menimbulkan inferen bahawa tertuduh mengetahui kandungannya bukanlah serbuk ubat muscular tetapi dadah (rujuk kes Hossein Shaker v Public Prosecutor & Other Appeals [2014] 3 MLJ 292).” [46] In any event, this court may review and re-evaluate the evidence in this case as this appeal is a continuation of proceedings by way of rehearing as lucidly explained by the Federal Court in Ahmad Najib Aris v PP [2009] 2 CLJ 800 in the following manner: 24 “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 the 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. In a case involving purely 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.” (see also PP v Azilah Hadri & Anor [2015] 1 CLJ 579) [47] Clearly, in the instant case, the detailed particulars of Kevin who was said had instructed the appellant to swallow the capsules when they were in Nigeria and the person whom the appellant suppose to deliver the capsules in Malaysia were not furnished to the police to enable further investigation to be carried out. The Federal Court in the case of Teng Howe Seng v PP [2009] 3 CLJ 733, held that the late disclosure of an identity of a person that the defence relied upon to support his defence would be given less weight. What more if the particulars were not given at all to the police or relevant authorities as in the present case. [48] The non-disclosure of the particulars of Kevin and the person whom the appellant suppose to deliver the capsules and in light of all the incriminating evidence against the appellant, justify the trial judge’s decision that the appellant was not an innocent carrier. Further, it was just improbable and unreasonable for the appellant to willingly swallowed 62 capsules as instructed by Kevin just because the appellant thought the capsules contained medicine which was a banned item in Malaysia. 25 [49] Further, no evidence was adduced to support the appellant’s contention that he came to Malaysia to buy cloth and raw material for him to re-sell them in Nigeria. Taking into account that it was his first trip to Malaysia when he was arrested, no document or contact person in Malaysia was adduced to support the appellant’s so called business trip. The reasonable inference is that the appellant’s trip to Malaysia was not a business trip but to bring the dangerous drugs into Malaysia. In this regard, on totality of evidence, we are of the view that the trial judge was correct in rejecting the defence of innocent carrier. [50] As the appellant has raised the defence of innocent carrier, the principle of wilful blindness must also be examined as to its application in the present case. This concept of wilful blindness in essence is that if the circumstances of a transaction raise suspicion, it is the duty on the person involved to inquire further as to its genuineness and failing which, the person is guilty of wilful blindness. [51] This doctrine of wilful blindness has also been succinctly explained by the Federal Court in PP v Herlina Purnama Sari [2017] 1 MLRA 499 which merits reproduction: “[45] Wilful blindness necessary 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 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 wilful blindness itself is that of suspicion followed by (and 26 couple with) a deliberate decision not to make further investigation. Whether the doctrine of wilful blindness should be applied to any particular case would be dependent on the relevant inferences to be drawn by the trial judge from all the facts and circumstances of the particular case, giving due weight, where necessary, to the credibility of witnesses (see PP v Tan Kok An [1995] 4 MLRH 256) [46] … The doctrine of “wilful blindness” can be summarized to be applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on inquiry as to the legitimacy of a particular transaction. To put it another way, if the circumstances are such as to arouse suspicion, then it is incumbent on a person to make the necessary inquiries in order to satisfy himself as to the genuineness of what was informed to him. Should he failed to embark upon this course of action, then he will be guilty of “wilful blindness”. In other words, he is taken to know the true situation. He then cannot be said to have either to have either rebutted the presumption of knowledge or to have raised a reasonable doubt as to his knowledge of the situation.” (emphasis added) [52] Reverting to the instant case, the fact that the appellant was asked by Kevin to swallow the 62 capsules for reason that it contained medicine which is a banned item in Malaysia surely arouse suspicion for the appellant to make further investigation. Merely asking Kevin whether the capsules contained drugs and the appellant himself tested the substance in one of the capsules, were not sufficient to ascertain the genuineness of what was informed by Kevin. Firstly, the appellant is not an expert on drugs to know whether the substances contained dangerous drugs when he testified that it tasted like medicine. Secondly, 27 Kevin would certainly deny that the substances were drugs as he did in this case, as he had already informed the appellant that the substances were muscular medicine. In essence, the inquiries by the appellant were not sufficient inquiries to dispel any suspicion as to the truth of what was informed by Kevin. Based on the totality of evidence, we are of the view that the appellant deliberately did not make the necessary inquiries as he knew that the substances contained dangerous drugs. In the circumstances, the appellant is guilty of wilful blindness and consequently failed to raise a reasonable doubt as to his knowledge that the capsules that he swallowed contained dangerous drugs. Conclusion [53] Based on the aforesaid reasons, we unanimously find that there is no appealable error in the decision of the trial judge for our appellate intervention. We are satisfied that on totality of evidence before the court, the conviction of the appellant under section 39B(1)(a) of the DDA 1952 is safe. As such, the appellant’s appeal is dismissed and the conviction and sentence by the trial judge is affirmed. Dated this day, 23 November 2020. (DATO’ NORDIN BIN HASSAN) Judge Court of Appeal Malaysia Putrajaya. 28 For the Appellant : Dato’ Rajpal Singh (bersama Y. Sheelan Sanmuagam) (Advocate and Solicitor) For the Respondent : Tuan Zaki Asyraf bin Zubir Deputy Public Prosecutor (Attorney General’s Chambers)