Emmanuel Kamano (No. Pp: 000019849) v Pendakwa Raya (W-05(M)-48-01/2017)

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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CRIMINAL JURISDICTION) CRIMINAL APPEAL NO: W-05(M)-48-01/2017 BETWEEN EMMANUEL KAMANO … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the matter of Kuala Lumpur High Court criminal trial No. 45A-6- 1/2016 Between Public Prosecutor v. Emmanuel Kamano] CORAM TENGKU MAIMUN TUAN MAT, JCA AHMADI HAJI ASNAWI, JCA ABDUL RAHMAN SEBLI, JCA JUDGMENT OF THE COURT [1] The appellant and another person, both Nigerians, were charged with drug trafficking and the charge against them was as follows: “Bahawa kamu, bersama-sama pada 22.6.2015, jam lebih kurang 6.15 petang, di Lebuhraya MRR2 Kepong - Sungai Buloh, dalam daerah Sentul, dalam Bandaraya Kuala Lumpur Wilayah Persekutuan, didapati telah mengedar dadah berbahaya iaitu Cocaine 3304.6 gram (berat bersih). Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama, dan dibaca bersama seksyen 34 Kanun Keseksaan.” [2] They claimed trial to the charge at the conclusion of which the appellant was found guilty and sentenced to death. The other person was 2 however acquitted and discharged as the learned trial judge had doubts as to his guilt. The prosecution did not appeal against the acquittal. [3] This was the appellant’s appeal against his conviction and sentence, which we dismissed by a unanimous decision after hearing the parties. These are the grounds of our decision. [4] The essential facts are simple and straightforward. The appellant and the other person were arrested by the police who had trailed the car they were travelling in through the Kepong MRR2 highway. The car was driven by the other person. [5] The police had earlier received information of a drug trafficking activity involving African nationals in that area and that a Perodua Myvi with registration number WWD5575 was to be used in the transaction. The appellant resisted arrest and had a scuffle with the arresting party when they wanted to handcuff him. [6] When the car was examined, the police found the drug which formed the subject matter of the charge. It was found in two plastic packets on the floor behind the driver’s seat of the car. The chemist confirmed that the drug was cocaine weighing 3304.6 grammes, a dangerous drug listed under the First Schedule to the Dangerous Drugs Act, 1952 (“the DDA”). [7] Possession without lawful authority of 40 grammes or more of this type of drug triggers the presumption of trafficking under section 37(da) of the DDA. In this case the amount was 82 times more than the prescribed minimum. 3 [8] At the close of the prosecution case, the learned trial judge found that a prima facie case had been established against the appellant. There was no argument before us that the learned judge was wrong in finding that a prima facie case had been made out against the appellant. Ground 1 of the appellant’s petition of appeal must therefore be taken to be abandoned. [9] In any case, we were of the view that on the facts, the learned trial judge was right in finding that a prima facie case of trafficking had been established against the appellant. The evidence is clear that the drug was in the appellant’s possession, custody and control at the time of his arrest and the large amount of the drug leads to a strong inference that it was for the purpose of trafficking. [10] When called upon to state his defence, the appellant (the 2nd accused in the court below) chose to give evidence on oath. We reproduce below the gist of his defence as set out by the learned trial judge in his grounds of judgment: “(i) Pada 22.6.2015, OKT2 telah pergi ke sebuah restoran Afrika di Damansara Perdana. Di restoran tersebut OKT2 telah bertemu seorang warga Afrika bernama ‘Johnson’. Johnson kemudian telah meminta tolong dari OKT2 untuk mengambil coklat dari teman wanita Johnson direstoran KFC di Kepong.

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(ii) Johnson juga telah memberi OKT2 wang RM200.00 untuk mengambil coklat tersebut dan memberikan nombor telefon bimbit Johnson dan nombor telefon bimbit teman wanitanya itu.

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(iii) Pada jam lebih kurang 4.00 petang hari tersebut, OKT2 bertemu OKT1 di restoran Afrika tersebut dan meminta OKT1 menghantar OKT2 ke restoran Afrika tersebut 4 dan meminta OKT1 menghantar OKT2 ke restoran KFC di Kepong dan ada memberi OKT1 wang RM50.00 untuk OKT1 mengisi minyak kereta.

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(iv) Apabila sampai di restoran KFC Kepong, OKT2 telah menelefon teman wanita ‘Johnson’ dan wanita tersebut telah meminta OKT2 masuk ke dalam restoran KFC berkenaan.

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(vi) Setelah disahkan OKT2 adalah kawan ‘Johnson’, perempuan bangsa India tersebut kemudian telah menyerahkan 2 beg plastik kepada OKT2 (P12 dan P28) dan menyatakan ianya berisi coklat untuk diberikan kepada ‘Johnson’. OKT2 mengambil 2 plastik berkenaan dan beredar keluar dari restoran KFC tersebut menuju ke kereta yang dipandu oleh OKT1. Di kereta tersebut, OKT2 telah meletakkan 2 beg plastik berkenaan di bahagian tempat duduk belakang kereta tersebut.

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(vii) Seterusnya, kereta WWD 5575 yang dipandu oleh OKT1 berkenaan dan OKT2 yang duduk di kerusi hadapan di sebelah OKT1 telah menuju ke restoran di Damansara Perdana.

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(viii) Dalam perjalanan iaitu di Kepong Central, kereta yang mereka naiki telah dipintas dan ditahan oleh beberapa orang yang bersenjata pistol yang kemudian memperkenalkan diri mereka sebagai polis.

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(ix) OKT2 dan OKT1 seterusnya ditangkap dan dibawa ke Ibu Pejabat Polis Daerah Sungai Buloh.

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(1) Johnson was a stranger to the appellant, yet the appellant agreed without question to Johnson’s request to collect the chocolate from Johnson’s girlfriend at the KFC restaurant.

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(2) The appellant did not bother to ask Johnson why Johnson himself could not collect the chocolate from his girlfriend.

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(3) RM200.00 was paid by Johnson to the appellant just to collect chocolates. This should have aroused the appellant’s suspicion.

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(4) The appellant had a scuffle with the police upon his arrest. This conduct was not consistent with innocence. 6

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(5) The two plastic packets could easily be opened to see their contents and the appellant had every opportunity to check them, yet he did not do so.

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(6) The appellant failed to rebut the presumptions under section 37(d) and (da) of the DDA. [14] We were urged upon by learned counsel to reverse this finding of fact and to set aside the conviction as according to counsel the learned trial judge did not properly evaluate the appellant’s defence in that he:

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(ii) failed to consider that the ‘shoddy’ investigation by the investigating officer had caused prejudice to the appellant’s defence.

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(iii) failed to consider the appellant’s cautioned statement, which was consistent with the cautioned statement of the other person and the appellant’s oral testimony in court.

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(iv) failed to consider that the appellant’s innocent carrier defence was probable or had raised a reasonable doubt in the prosecution’s case.

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(vi) failed to administer the Radhi Direction.

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(vii) failed to consider that the appellant’s conduct was consistent with that of an innocent carrier. [15] We found no merit in any of the complaints. On the totality of the evidence and for the reasons given by the learned judge, we agreed with his finding that the appellant had knowledge of the drug and had failed to rebut the presumption under section 37(d) of the DDA. The probabilities of the case does not favour any finding to the contrary. [16] Whether or not the appellant knew about the drug is primarily a question of fact and the principle is settled that an appellate court does not readily interfere with findings of fact made by the trial court unless it can be shown that the finding is perverse. The proposition is best explained by the Privy Council in Antonio Dias Caldeira v Frederick Augustus Gray [1934] 1 LNS 5; [1936] 1 MLJ 110 at page 111: “Nonetheless, the functions of a Court of Appeal, when dealing with a question of fact, and a question of fact, moreover, in which, as here, questions of credibility are involved, are limited in their character and scope. This is familiar law. It has received many illustrations – and, in particular in the House of Lords, - the most recent of these being the case of Powell and Wife v Streatham Manor Nursing Home [1935] AC 243; 104 LJ KB 304; 152 LT 563; 79 SJ 179; 51 TLR 289. In that case it was held that: “Where the Judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge has formed.” 8 Lord Wright, in the course of his speech, said: “Two principles are beyond controversy. First, it is clear, that, in an appeal of this character, that is from the decision of a trial Judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal ‘must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong’.” [17] In a prosecution under the DDA, possession of the drug and knowledge of the nature of the drug are presumed by section 37(d) where the accused is found to be in custody or control of the drug. Section 37(d) of the DDA provides as follows: “37. In all proceedings under this Act or any regulation made thereunder –

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(ii) that he knew the nature of the drug, in this case cocaine. [19] The burden was therefore on the appellant to prove, not only that he was not in possession of the drug, but also that he had no knowledge of the nature of the drug. The quantum of proof required to discharge the burden is proof on the balance of probabilities, i.e. the civil burden of proof. 9 [20] It is a rebuttable presumption. However, it would not be sufficient for the appellant to discharge the burden by merely raising a reasonable doubt in the court’s mind as to whether or not he had knowledge of the drug: Public Prosecutor v Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89. He must prove it by admissible evidence. [21] The lighter evidential burden of merely to cast a reasonable doubt in the prosecution’s case on any fact in issue (e.g. knowledge) is only applicable where there is no legal burden to discharge, as in Mat v PP [1963] 1 LNS 82; [1963] 1 MLJ 263, a case which deals with the burden of the prosecution to prove its case beyond reasonable doubt. [22] As for the factors that the court takes into consideration in determining “possession” (as the word is understood in criminal law), reference may be made to the speech by Lord Pearce in the House of Lords case of R v Warner [1969] 2 A.C. 256 at page 304-306: “If a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents. But can this be rebutted by evidence that he was mistaken as to its contents? As in the case of goods that have been ‘planted’ in his pocket without his knowledge, so I do not think that he is in possession of contents which are quite different in kind from what he believed. Thus the prima facie assumption is discharged if he proves (or raises a real doubt in the matter) either (a) that he was a servant or bailee who had no right to open it and no reason to suspect that its contents were illicit or were drugs or (b) that although he was the owner he had no knowledge of (including a genuine mistake as to) its actual contents or of their illicit nature and that he received them innocently and also that he had no reasonable opportunity since receiving the package of acquainting himself with its actual contents. For a man takes over a package or suitcase at risk as to its contents being unlawful if he does not immediately examine it (if he is entitled to do so). As soon as may be he should 10 examine it and if he finds the contents suspicious reject possession by either throwing them away or taking immediate sensible steps for their disposal.” (emphasis added) [23] In the present case, there was nothing to stop the appellant from examining the two plastic packets that Johnson asked him to collect from Johnson’s girlfriend. In fact he should, given the suspicious circumstances under which he was requested to do so. He was clearly guilty of wilful blindness by choosing not to do so. [24] The learned trial judge was therefore correct in finding that the appellant failed to rebut the presumptions of possession and knowledge of the nature of the drug under section 37(d) of the DDA. This is what he said: “[58] Berdasarkan keseluruhan keterangan juga, saya dapati OKT2 gagal menyangkal anggapan ‘milikan’ dan pengetahuan di bawah seksyen 37(d) ADB 1952.” [25] It was no doubt a finding based on the learned judge’s assessment of the appellant’s credibility and reliability as a witness. Having regard to the totality of the evidence, it was not plausible for the learned judge to have come to a different finding, contrary to learned counsel’s contention. Therefore, we found no reason to interfere with the learned judge’s finding that the presumption of possession and knowledge of the nature of the drug under section 37(d) had not been rebutted by the appellant. [26] By the appellant’s failure to rebut the presumption section 37(d) of the DDA, he was straight away liable to be convicted of the offence of possession under section 12(2) read with section 39A(2)(e) of the DDA because possession had been proved by the prosecution. 11 [27] However, in the context of a prosecution under section 39B(1) (a) of the DDA, proof of possession alone is not sufficient to found a conviction for trafficking. To complete the offence, possession of the drug must be proved to be for the purpose of trafficking. [28] Whether the drug in the appellant’s possession was for the purpose of trafficking is again primarily a question of fact. This can either be proved by affirmative evidence, direct or circumstantial, or by invoking the presumption under section 37(da)(ix) of the DDA which reads: “37. In all proceedings under this Act or any regulation thereunder – (da) any person who is found in possession of –

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(ix) 40 grammes or more in weight of cocaine; 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;” [29] In the present case, the presumption of trafficking was triggered as the amount of cocaine that was found in the appellant’s possession was more than 40 grammes in weight. The grounds of judgment shows that the learned trial judge invoked the presumption and found that the appellant failed to rebut the presumption. This finding can be found at paragraph 60 of the judgment where the learned judge said: “[60] Seterusnya, berdasarkan penilaian yang berasingan, saya dapati OKT2 juga telah gagal menyangkal anggapan pengedaran di bawah seksyen 37(da) Akta Dadah Berbahaya 1952.” 12 [30] So the learned judge’s finding at the conclusion of the trial was that the appellant failed to rebut both the presumptions of possession and knowledge of the nature of the drug under section 37(d) and also the presumption of trafficking under section 37(da) of the DDA. [31] As to the legal consequence of failing to rebut a statutory presumption, the following excerpts from the judgment of Lord Diplock in Public Prosecutor v Yuvaraj (supra) are directly on point: “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such finding will have the consequence of a conviction.” (emphasis added) [32] In Cohen Lorraine Philis & Anor v PP [1989] 2 CLJ 956; [1981] 1 CLJ Rep 18, which was a drug trafficking case, the then Supreme Court recognised that the law on statutory presumptions as stated in Public Prosecutor v Yuvaraj (supra) has become “part of our law”. [33] Even if the learned trial judge had not invoked the presumption of trafficking under section 37(da), the large amount of the drug would justify the inference that he drew that it was for the purpose of trafficking: see Ong Ah Chuan v PP [1980] 1 LNS; [1981] 1 MLJ 64. 13 [34] As we mentioned, the amount of the drug in the appellant’s possession was 82 times in excess of the prescribed minimum to trigger the presumption of trafficking under section 37(da) of the DDA. This is what the learned judge said in drawing the inference that the drug was for the purpose of trafficking: “[59] Saya juga dapati fakta OKT2 yang membawa bag plastik P12 dan P28 yang berisi dadah dari restoran KFC Kepong sehingga ditangkap di Kompleks Desa Kepong dalam kereta WWD 5575 tersebut dan dengan jumlah dadah yang besar dalam kes ini menyokong inferen bahawa ianya adalah bagi maksud pengedaran.” [35] This was a finding that was based on affirmative evidence of trafficking and not based on the presumption under section 37(da). This was a right call to make as there was absolutely no evidence before the court that the drug was not for the purpose of trafficking. This is not surprising in view of the appellant’s line of defence, which was “no knowledge” rather than “no trafficking”. [36] There was therefore no material before the court for the learned judge to come to a finding that the appellant had cast a reasonable doubt in his mind as to whether or not the drug was for the purpose of trafficking. [37] Learned counsel had also contended that the learned judge erred in applying the doctrine of wilful blindness against the appellant, citing PP v Herlina Purnama Sari [2017] MLRA 499. With due respect, we found no substance to the argument. [38] The application of the doctrine could only be avoided if the appellant had no reason to suspect that there was something amiss with Johnson’s request to collect the “chocolate” from his girlfriend. In the present case, 14 he had every reason to be suspicious but chose to shut his eyes to the obvious danger. The following remarks by Professor Glanville Williams in his Textbook on Criminal Law at page 125 is apt: “…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 truths 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’”. [39] It was further argued that the learned trial judge erred in failing to consider the cautioned statement of the appellant (D52), citing Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705. It was submitted that had the learned judge considered the cautioned statement, he would have found that the appellant’s defence was not an afterthought as it was put forward at the earliest opportunity and was consistent with the cautioned statement of the other person as well as the appellant’s oral testimony in court. [40] It was submitted that the failure by the learned judge to consider the appellant’s cautioned statement was a breach of section 182A(1) of the Criminal Procedure Code which requires the court to consider “all the evidence adduced before it” at the conclusion of the trial. [41] We found no merit in the argument. Although the learned judge did not refer to the cautioned statement in considering the appellant’s defence, this had not resulted in a serious miscarriage of justice as what the appellant said in his oral testimony was a regurgitation of what he said in his cautioned statement. 15 [42] Repeating what he said before the trial did not add value to his evidence in court, especially considering the fact that the out of court statement was not subjected to cross-examination unlike his oral evidence in court. If we were to accede to learned counsel’s argument, consistency in evidence would determine whether or not an accused person is guilty of the offence he is charged with. That cannot be a correct proposition of law. [43] It was for all the reasons aforesaid that we dismissed the appellant’s appeal and affirmed his conviction and sentence. We were satisfied that his conviction was safe. Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 9 May 2019. For the Appellant: N. Sivananthan and Jasmine Cheong of Messrs Sivananthan. For the Respondent: Ku Hayati Binti Ku Haron, Deputy Public Prosecutor of the Attorney General’s Chambers.