Ho Kok Leong v Pendakwa Raya (A-05(M)-130-03/2017 & A-05(M)-132-03/2017)

1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. A-05(M)-130-03/2017 BETWEEN HO KOK LEONG …APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT HEARD TOGETHER WITH CRIMINAL APPEAL NO. A-05(M)-132-03/2017 BETWEEN SOO YOKE SIN …APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT (In The Matter Of The High Court Of Malaya At Taiping Criminal Trial No. 45A-01-02/2016 Between 2 Public Prosecutor And

1. Hoo Kok Leong

2. Soo Yoke Sin) CORAM: AHMADI HAJI ASNAWI, JCA ABDUL RAHMAN SEBLI, JCA KAMARDIN HASHIM, JCA JUDGMENT [1] In this judgment, Ho Kok Leong, is referred to as to first appellant and his wife, Soo Yoke Sin, is known as the second appellant. [2] In the court below both the appellants were levelled with the following charges: “First Charge: Bahawa kamu bersama-sama pada 20.9.2015 jam lebih kurang 9.15 malam di hadapan rumah No. 383, Taman Jalong Baru, di dalam negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya seberat 128.29 gram iaitu (93.32 gram Heroin dan 34.97 gram Monoacetylmorphines) dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952, yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan. 3 Second Charge: Bahawa kamu bersama-sama pada 20.9.2015 jam lebih kurang 9.15 malam di hadapan rumah No. 383, Taman Jalong Baru, di dalam Daerah Sungai Siput, di dalam Negeri Perak Darul Ridzuan, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 66.07 gram dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan. Third Charge: Bahawa kamu bersama-sama pada 20.9.2015 jam lebih kurang 9.15 malam di hadapan rumah No. 383, Taman Jalong Baru, di dalam Daerah Sungai Siput, di dalam Negeri Perak Darul Ridzuan, telah ada dalam milikan kamu dadah berbahaya jenis Nimetazepam seberat 0.74 gram dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952, yang boleh dihukum di bawah seksyen 12(3) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan”. [3] Both the appellants were found guilty on all 3 counts and convicted of the offences thereof and were accordingly sentenced to death in respect of the first and second charge. On the third charge, both the appellants were each jailed for 5 years to run with effect from the dates of their arrests (20.9.2015). [4] The appeals before us were in respect of the said convictions and sentences upon the first and second charge. [5] We heard the appeals on 25.7.2018 and dismissed the same after having perused the appeal records and having considered the issues 4 raised and the submissions made in support thereof by both the parties. We now offer our grounds. The Case For The Prosecution [6] Acting upon information of a drug trafficking activity involving the transportation of drugs in a Proton Wira motorcar bearing registration number AEQ 2490 at Taman Jalong Baru, on 20.9.2015, at about 9.00 p.m., SP-5 (Superintendent Abdul Latif bin Mehat) and eight (8) police personnel from the Narcotics Department of Sungai Siput Police Station took up their respective positions at the said housing estate. There he met and was subsequently assisted by ASP Mohd Suffian bin Saari (SP- 6). SP-5 then divided his men into four (4) teams. [7] About 10 minutes later, SP-5 who was waiting at the entrance to the said housing estate, spotted the Proton Wira motorcar AEQ 2490. He alerted members of the other teams through the walkie talkie and trailed the car into Taman Jalong Baru. 5 [8] The said Proton Wira motorcar AEQ 2490 stopped on the pavement of a double storey interlinked house bearing the postal address of No. 383, Taman Jalong Baru. [9] SP-5 and SP-6 quickly blocked the said motorcar from the front and rear with their respective vehicles. They then surrounded the said Proton Wira car and identified themselves as police officers. [10] According to SP-5, the first appellant was in the driver’s seat and the second appellant was seated beside him at the front passenger seat. No one else was inside the car. The car doors were locked. When instructed to step out, the appellants delayed doing so for about 2 to 3 minutes. [11] SP-6 added that the first appellant tried to reverse his car when his car was blocked by the police car, but was unable to do so as his car (SP- 6’s) was very close behind. SP-6 also flatly denied that the second appellant was seated at the rear seat when the police surrounded the car. [12] The appellants were searched upon exiting the car but no incriminating objects were found upon their persons. 6 [13] SP-5 then searched the inside of the car. He found a yellow plastic bag at the front passenger seat footwell of the car. He took out the yellow plastic bag and opened it in the presence of both the appellants. [14] Inside the yellow plastic bag, SP-5 found:

(ii) one (1) plastic bag containing three (3) clear plastic packets containing substance suspected to be Methamphetamine;

(iii) fifteen (15) aluminium foils on which the words ‘Eramine 5’ were written. There were 10 pills in each aluminium foil, making a total sum of 150 pills in all the 15 aluminium foils. [15] SP-5 also said that he recovered four (4) mobile phones from the first appellant’s trousers pocket. [16] The aforesaid exhibits were seized by SP-5 and brought to Sungai Siput Police Station together with both the appellants. SP-5 next lodged 7 a police report and issued a search list to each of the appellants, He also marked the exhibits by writing the date and affixing his signature on each of them. [17] On the same day, SP-5 handed both the appellants and the exhibits seized to the investigating officer, SP-7 (ASP Mohd Radzi bin Abdul Rahim). He made his own markings on the exhibits. [18] SP-7 next placed the 6 clear plastic packages with its contents in a box marked as ‘MR’; the 3 clear plastic packages with its contents in a brown envelope marked ‘MR1’; and the 15 aluminium foils in a white envelope marked as ‘MR2’. [19] On 22.9.2015, the exhibits in ‘MR’ and ‘MR2’ were handed to the chemist, SP-2 (Gunalan a/l Varatharajan), whilst the exhibits in ‘MR1’ was handed to the chemist, SP-4 (Siti Hajar Aisah binti Mohd. Khamsi). [20] SP-2 testified that his analysis confirmed that the substance found in the 6 clear plastic packages contained 93.22 grams of Heroin and 34.93 8 grams of Monoacetylmorphines. He also found that the 150 pills in the 15 aluminium foils contained 0.74 grams of Nimetazepam. [21] SP-4 found from her analysis that the 3 clear plastic packages contained 66.07 grams of Methamphetamines. [22] Both SP-2 and SP-4 testified that the said 3 types of drugs were listed in the First Schedule of the Dangerous Drugs Act 1952 (‘DDA 1952’) as dangerous drugs within the definition of s.2 of the DDA 1952 (‘the impugned drugs’). [23] At the end of the prosecution’s case, the learned JC found that the impugned drugs were in the possession of the first appellant and the second appellant’s proximity to the impugned drugs in the car belonging to her husband, the first appellant, indicated that she had the common intention with the first appellant. [24] On account that the prosecution had proved possession of the impugned drugs, the learned JC further invoked the presumption of trafficking in the said drugs under s.37 (da) of the DDA 1952 until the 9 contrary is proved as the amount of drugs intimated in the first and second charge far exceeded the statutory limit provided under the said s.37(da). [25] Hence, at the close of the prosecution’s case the learned JC found that the prosecution had made out a prima facie case against both the appellants on the 3 preferred charges, which if unrebutted would warrant their convictions. Both the appellants were thus ordered to enter their defence. The Defence Case [26] Both the appellants testified on oath. [27] The first appellant accepted that the car in which the drugs were found belonged to him. [28] The first appellant stated that he sold egg tarts at Bagan Rajang market in Penang before his arrest. 10 [29] It was the first appellant’s defence that on 20.9.2015, he had come to Sungai Siput to collect organic honey he had purchased from Taib (SD- 4). [30] The second appellant had come along to keep him company. This was her first trip to Sungai Siput. [31] He had known Taib for 3 months and had purchased organic honey from Taib on several occasions in past. [32] Upon reaching Sungai Siput, the first appellant called Taib and Taib said he could not come and asked the first appellant to wait instead at a mamak shop and he would send someone over to show him the way to his place at Taman Jalong. [33] A male Malay showed up at the mamak shop and introduced himself as Taib’s friend. He got into the front passenger seat of the first appellant’s car, whilst the second appellant had to move to the rear seat of the said car. He brought with him a yellow plastic bag and said that it was for Taib. 11 [34] Half way through, the male Malay alighted from the car. After showing the appellants the way, he asked the first appellant to go to Taman Jalong by himself and hand over the said yellow plastic bag to Taib. [35] The first appellant proceeded to drive on whilst the second appellant remain seated at the rear seat of the car. [36] The first appellant lost his way and called Taib again. Now Taib asked the first appellant to wait at a certain Petronas petrol station and he would sent somebody over to show him the way to Taman Jalong. [37] At the petrol station a Honda motorcar came. The first appellant identified the driver as Hussin, the person in the photograph in exhibit D31. Hussin led the first appellant to house No. 383 in Taman Jalong and asked him to park his car on the pavement in front of the said house. [38] Immediately thereafter, 3 police cars blocked the first appellant’s car. The appellants were arrested after the police recovered the impugned 12 drugs from the yellow plastic bag, inside the car (at the footwell of the front passenger seat of the car). [39] The first appellant denied that he had tried to reverse the car to escape. He also denied that the police had showed him 6 newspaper packages. Instead only one newspaper package was shown in which there were 6 plastic packets. [40] The first appellant added that he saw Taib seated in one of the police cars parked near house No. 383. At the police station, he met Taib who informed him that he was forced by the police to call him to bring the drugs to Taman Jalong. [41] Both the appellants maintained that they did not know the contents in the yellow plastic bag. [42] The second appellant corroborated the first appellant’s testimony as to how the drugs came to be in their car. 13 [43] The defence called SD-3 (Fatin Adeela binti Abdul Manaf), the legal clerk, who had received through the mail an anonymous note and a photograph of Hussin, exhibit D31. [44] SD-4 (Mohd. Taib bin Ibrahim) was also called, being the person who made the arrangement for the appellants to meet the male Malay (whom he called ‘Ayob’) and brought the yellow plastic bag to the first appellant with the request that it be handed over to SD-4. [45] The first appellant’s defence basically was that he was an innocent carrier of the said yellow plastic bag. He was not the owner of the plastic bag and it belonged to the male Malay who had left it in the first appellant’s car with the request that it be handed over to SD-4. [46] At the end of the hearing, the learned JC found, at p. 39, Jilid 1, RR: “70. After considering all the evidence before me, I found that the accused persons had failed to rebut the presumption of trafficking under s.37 of the DDA and that presumption therefore stands un rebutted.

71. ….the accused had the burden of explaining the incriminating evidence against them. However, in their evidence, they offerred no credible explanation, but on the contrary, presented a confusing story. The distinct lack of clarity in the evidence of the accused persons as to how the drugs came to be in the car indicates that it 14 is a fabrication. Far from creating a reasonable doubt, the defence in this case merely served to confirm and strengthen the case for the prosecution”. [47] Hence, both the appellants were found guilty and convicted of the offence of trafficking in the said drugs. Both were sentenced to death according to law. The Appellants’ Appeal [48] Learned counsel for the first appellant conceded that the prosecution had established a prima facie case against both appellants on the offences proferred against them. [49] Learned counsel agreed that the prosecution had proved mens rea possession of the impugned drugs upon the appellants and the trafficking aspect of the offence was amply proven by the statutory presumption invoked against both of them under s.37(da) of the DDA 1952. [50] Learned counsel’s primary complaint, though, was upon the manner in which the first defendant’s defence was handled by the learned JC. 15 [51] Foremost, learned counsel argued that the learned JC had placed too much reliance on the issue of the credibility of the first appellant and had misdirected herself when she placed the burden upon the first appellant to prove the existence or the whereabout of the mamak shop where the first appellant had first waited for SD-4’s friend to show the way to SD-4’s house when there was no express challenge of the existence of same coming from the testimonies of SD-1, SD-2 and SD-4. [52] It was also argued by learned counsel that the learned JC was wrong when she found that the first appellant had failed to procure the Alcontara notice in view of his line of defence in alluding to the role played by SD-4 and his colleagues in the commission of the said offences. It was further submitted that the defence carried no burden to produce the said notice on account that the defence had mounted a challenge from the very beginning that the impugned drugs were placed inside the first appellant’s car by a male Malay, being SD-4’s acquaintance. [53] Also, it was submitted that such adverse comment, without an accompanying statement that the first appellant was under no obligation to make such prior disclosure and that she was not drawing an inference of guilt from such failure amounted to a serious misdirection in law. 16 [54] Finally, it was submitted that it was wrong for the learned JC to reject the defence of the first appellant on the grounds that it was a mere fabrication. [55] Meanwhile learned counsel for the second appellant contended that the prosecution had failed to establish a prima facie case against both the appellants on account of the prosecution’s failure to call ‘Ayob’, ‘Brader’ and ‘Hussin’ to testify or at least offer them to the defence. [56] Learned counsel insisted that these witnesses were real persons. They had played distinctive roles in the whole scheme of events and would be able show that the appellants were not the real traffickers. Our Decision [57] To recapitulate, in brevity the first appellant posited that he had contacted SD-4 (Taib) upon reaching Sungai Siput town to collect the organic honey he had intended to purchase from SD-4 and was told by SD-4 to wait at a certain mamak shop and he (SD-4) will despatch someone to him to bring him to his place. So it was that a male Malay had turned up with a yellow plastic bag and introduce himself to the first 17 appellant as SD-4’s friend. He took the front passenger seat and the second appellant had to move to the rear seat. He told the first appellant that the yellow plastic bag was for SD-4. Half way through, the male Malay alighted from the car and after showing the way, he asked the first appellant to go to Taman Jalong by himself, leaving the yellow plastic bag inside the car. The male Malay further asked the first appellant to hand over the yellow plastic bag to SD-4. Both the appellants denied knowledge of the contents of the yellow plastic bag found by SP-5 at the footwell of the front passenger seat of the car, whilst the second appellant was sitting on the said front passenger seat. [58] It is apparent that the appellants were contending that the said yellow plastic bag containing the impugned drugs were not theirs but belonged to either the male Malay whom SD-4 identified as ‘Ayob’ or SD- 4 himself. Hence, their proposition that the real trafficker or traffickers was either ‘Ayob’ or SD-4 or both of them working in cohort with each other and that both the appellants were mere innocent carriers without knowledge. [59] It is equally apparent that the evidence revealed that the appellants had failed to disclose their defence, i.e. the roles played by ‘Ayob’ and SD- 18 4 in the whole scheme of events, at the earliest possible opportunity, either through SP-5 or SP-6 at the point at their arrest or through the investigating officer, SP-7, when they were handed to SP-7 by SP-5 or soon after in the course of SP-7’s investigation. If this was done, the appellants would have then fulfilled the requirement to give notice under the Alcontara rule. The caution statements of both the appellants were not tendered in court. Hence, it provides no clue either. [60] Be that as it may, we were mindful of the dictate of the Federal Court in Raman a/l Kunjiraman v PP [2018] Supp. MLJ 86, at p. 103, through Sulong Matjeraie FCJ: “[52] We appreciate that no adverse inference may be drawn against the appellant for remaining silent upon his arrest. The appellant does not have any duty to disclose his defence and entitled to remain silent after his arrest and when his cautioned statement was recorded. Similarly no adverse inference is to be drawn against the appellant for remaining silent for not disclosing his defence. However, his silence would entitle the learned trial judge to give whatever weight considered appropriate”. [61] We were equally mindful that the law assigned a distinctive treatment in respect of an accused exercising his right to remain silent and his failure to disclose his defence at the earliest possible opportunity. The accused cannot be adversely criticised when exercising his right to remain silent whilst the consequence of his failure to disclose his defence would 19 detract the weight to be accorded of his subsequent testimony in court. In Alcontara a/l Ambross Anthony v PP [1996] 1 CLJ 705, the Federal Court thus dictated that: “It is clear law that a judge must tread warily when commenting on the fact that an accused had chosen to conceal the lines of his defence until the trial, rather than disclosing them at or about the time of his arrest during police interrogation. He may observe that such a stance would make it difficult for the police to check the veracity of the accused’s version of the facts and so detracts from the weight to be accorded to it (see R v Little boy [1934] 2 KB 408; R v Ryan [1966] 50 Cr. App. R. 144). That, however, is as far as he can go, for should he go further and infer that such non-disclosure provides a basis for assuming that the accused is guilty, (see e.g. R v Sullivan [1967] 51 Cr .App. R. 102; R v Hoare [1966] 2 AER 846 [1966] 50 Cr. APP. R. 166), he would be misdirecting himself in law. [62] We were of course very familiar with the further ruling of the instant authority that, at p. 718: “Speaking generally, in a criminal trial, the whole point and purpose of the defence having to put its case to such of the prosecution witnesses as might be in a position to admit or deny it, is to enable the prosecution to check on whether the accused’s version of the facts is true or false, and thus avoid the adverse comment, that the defence is a recent invention in other words, ‘kept up its sleeve’, as it were and revealed for the first time when the accused makes his defence from the witness box or the dock, thus detracting from the weight to be accorded to the defence…..”. [63] Needless to say, the appellants disclosed their defence only years later in the course of the hearing of the charges against them in court. It was clearly a belated disclosure. The weight to be accorded then is purely 20 a matter within which the trial judge has the option to dismiss it with little or no weight on account that it was tantamount to a recent invention or otherwise accept the same on cogent grounds albeit with the detraction therein. [64] Towards the end of her judgment, in a single paragraph, the learned JC remarked at para. 69 p.38, Jilid 1, RR, that there was no evidence of the Alcontara notice being given to the prosecution at the earliest opportunity of the facts in support of the defence case and it provides no opportunity for the prosecution to rebut the defence case. [65] We opined that the learned JC was correct on all fours to come to such a determination. By such failure, the prosecution was denied the opportunity to check on whether the appellants’ version of the facts were true or false, or that it was not a recent invention. We also opined that by commenting on the failure of the appellants to provide all relevant information required under the Alcontara notice does not mean that the learned JC had imposed a duty on the appellants to speak or disclose any information of the facts in support of the defence, principally the role played by Ayob and SD-4. 21 [66] Such remarks on the late disclosure of the appellants’ defence (the role played by ‘Ayob’ and SD-4) merely goes to show the weight that the learned JC had attached to the appellants’ defence which is permitted by law – see Teng Howe Sing v PP [2009] 3 CLJ 733. We do not regard from the grounds of judgment of the learned JC that she had drawn any adverse inference against the appellants. Hence, in our view, such remarks by the learned JC without an accompanying statement that the first and second appellant were under no obligation to make such prior disclosure and that she was not drawing an adverse inference of guilt from such failure, in all the circumstances of the case is a non-issue altogether. [67] However, that was not the main thrust of the learned JC’s decision to reject the defence of the appellants. Rather, it was grounded upon the credibility of both the appellants. At para 61, p. 36, Jilid 1, RR, the learned JC found: “The defence of the accused depended entirely on their credibility and that of Taib. Having considered the evidence of the accused persons they did not impressed me as truthful witnesses. They were not speaking the truth and had invented their story to escape the consequences of their criminal acts. I do not accept the evidence of the second accused that she was seated at the back of the car when the police surrounded the car, and the drugs were not beside her. Superintendent Latiff and ASP Suffian are police witnesses who had no reason to fabricate evidence”. 22 [68] The learned JC gave her grounds to find the appellants and their witnesses wanting in credibility at the ensuing paras. 62 to 68 of her grounds of decision (at pp. 37 to 38, Jilid 1, RR). We have no wish to repeat the same herein. Suffice for us to reiterate that we have carefully scrutinised the evidence and found that her findings/grounds were cogent and were fully supported by the evidence adduced. The learned JC had committed no error on the facts and law to come to such findings. [69] In dealing with issues of credibility, it is always necessary to take into consideration the test that a trier of fact should ordinarily apply when evaluating oral evidence. [70] The principal consideration when evaluating oral evidence are the probabilities of the case. If the testimony of the witness is improbable, then the trial court should not hesitate to reject his evidence. But where the evidence of a witness accords with the probabilities of the case, it would be a serious misdirection of the trial court to give little or no weight of the evidence on grounds of want of credibility – see Muniandy & Ors v PP [1966] 1 MLJ 257; Tengku Mahmood v PP [1974] 1 MLJ 110. 23 [71] In the instant case, the learned JC had variously found that the defence witnesses were not being truthful; their evidence were fabricated; their evidence confusing and incredulous; their evidence makes no complete sense; and their version of the facts were so confusing and difficult to fathom. These were findings of facts by the trial court. We were in no position to interfere with such findings unless there was evidence to show the perversity of the said findings. We were satisfied that there were none. [72] The presence or absence of motive on the part of the witness or witnesses is also a relevant consideration. In the instant case, both SP-5 and SP-6 were total strangers in relation to the appellants. It has not been shown that they have an axe to grind against the appellants to motivate them to manufacture evidence and testify adversely against them in a capital offence. It is apparent that the evidence of SP-5 and SP-6 were grounded upon the factual discovery of the impugned drugs at the footwell of the front passenger seat of the car belonging to, and driven by the first appellant whilst the second appellant was seated on the said front passenger seat, next to the first appellant. As observed by the learned JC, both SP-5 and SP-6 are mere police witnesses who had no reason to fabricate evidence. 24 [73] Our short response to learned counsel for the second appellant’s submission would simply be that the appellants had failed to give sufficient notice of the existence of the said witnesses for an effective investigation of the same. Their existence and roles played by them were revealed only years later in court during the hearing of the charges against them. This would effectively restrict or even bring to nought the efficacy of the police investigation of their existence and the alleged roles played by them in the commission of the offense. The insufficiency of the notice would hence preclude the shifting of the evidential burden to the prosecution to rebut the same. [74] On the same footing, it does not create an advantage to the defence that the non-calling or the failure to offer these personalities as witnesses to the defence would warrant the invocation of the adverse inference rule to operate against the prosecution (as suggested by the defence). In so far as the prosecution is concerned, these witnesses were neither material nor essential for the prosecution to unfold its narrative and establish its case. 25 [75] The said three witnesses were not part of the prosecution’s narrative as the prosecution’s case was not grounded upon their alleged participation in the commission of the offence. Their roles were alluded only by the defence. As such the prosecution is under no compulsion to call them to testify or to produce them for the benefit of the defence. All the more so when they surfaced only years later in court after their arrest. This court in Phiri Mailesi (Zambian) v PP [2013] 5 MLJ 780, had said: “It is pertinent to note that the ‘Alcontara Notice’ must have sufficient particulars in the right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story or version. It must also be given at the earliest opportunity at the material time of the arrest or at least upon counsel taking instruction from the accused to conduct its defence. In addition the defence’s version should be put at the prosecution stage and the story must be maintained at the defence stage. There will be a duty placed on the judge even at the prosecution stage to positively evaluate the story of the accused relating to ‘Alcontara Notice’ before evaluating the prosecution case and applying the maximum evaluation as Alcontara case places the onus on the prosecution to rebut or sufficiently explain that they have discharged that onus. In the instant case evidence will show that the defence has not given an ‘Alcontara Notice’ in the right perspective”. [76] Now, learned counsel took us on a lengthy discourse of the role of SD-4 (Taib) in the commission of the offence. [77] It is worthy to examine SD-4’s testimony in greater detail. 26 [78] According to SD-4, at the material time he was subjected to a supervision order under the Prevention of Crime Act where he was required to reside at Kampong Gajah. He could not leave the district without police permission. On the morning of said instant, he went to IPD Seri Iskandar to meet one Inspector Mazli to attend a programme organised by Kementerian Dalam Negeri at IPD Taiping in a car borrowed from a friend. After the event, Inspector Mazli brought him back to IPD Seri Iskandar and asked him to return home. [79] Instead, SD-4 phoned his friend, one Brader, to discuss about drugs that Brader had earlier asked to buy for him, from Ayob. He informed Brader that he was meeting Ayob in Sungai Siput to get the drugs. He went to Sungai Siput and at about 8.00 p.m. met Brader who got into his car. Whilst driving, he noticed Brader using his mobile phone to send messages to someone. Sometime later, his motorcar was stopped and detained by the police. Now he believes Brader was a police informer. [80] He (SD-4) was then ordered to get into one of the police cars where he was then taken to a housing estate. He was ordered to call Ayob to bring the drugs to Taman Jalong. He did and also uttered the words 27 ‘Merah! Merah!’, a secret code to warn Ayob not to bring drugs but flour. Nevertheless, Ayob did not come to Taman Jalong. [81] SD-4 said he then received a call from the first appellant asking him to bring the honey. He replied that he could not meet him there as he had hurt his leg, and would sent a Malay man to bring him to his place. At the request of the police, he again phoned Ayob to meet the first appellant, show him the way, and bring him to Taman Jalong. [82] Later, the first appellant again called him to tell him that he was unable to find Taman Jalong. The police then instructed him to tell the first appellant to wait at the Petronas station and someone would come to show him the way. SD-4 also said he uttered the words ‘Merah! Merah! Taman Jalong’ to the first appellant. [83] SD-4 continued that he next saw one of the police officers got into another car and drove away. About 20 minutes later, he saw three cars approaching the place where he was waiting with the police. The car in the centre was blocked by the other two cars. He saw the second 28 appellant sitting at the rear seat whilst the first appellant was driving the said car in the centre. [84] In cross-examination, SD-4 like both the appellants, was unable to tell the name of the mamak shop nor the location of the shop that he had asked Ayob to meet the first appellant. [85] Thus learned counsel for the second appellant submitted that:

(ii) SD-4 corroborated the first appellant’s testimony that a male Malay (Ayob) was sent to him at the mamak shop when SD-4 could not come to meet him;

(iii) SD-4 admitted dealing in drugs with Ayob and Brader and not with both appellants;

(iv) the police forced SD-4 to call Ayob to bring the drugs to Taman Jalong;

(vi) SD-4 was with the police when both the appellants were arrested and SD-4 corroborated the evidence of both the appellants that at the material time, the second appellant was seated at the rear seat.

(vii) It was Ayob/SD-4 who placed the impugned drugs in the first appellant’s car without the knowledge of both the appellants. [86] Hence, it was submitted that both the appellants were entitled to be acquitted on account that they were not the real traffickers. The people behind them were in fact Ayob/SD-4. [87] However, the learned JC found SD-4 not a truthful witness, his testimony did not make sense and was totally lacking in credibility. Her analysis of SD-4’s evidence and corresponding findings were most cogent (at pp. 37, 38, RR, Jilid 1): “64. As for the evidence of Taib, it just did not make sense and was totally lacking in credibility. It will be recalled Taib had claimed that the police had asked him to telephone Ayob to request him to bring the drugs that was to be delivered to Brader to Taman Jalong. If this was so, it did not make sense why the police would require Taib to ask the accused persons to bring the drugs to Taman Jalong.

65. Next, and crucially if indeed Ayob was the target of the police that night, as alleged by Taib, the police could have just gone to the mamak shop to apprehend him since they would have known he was meeting the accused persons at the mamak shop. The police 30 had no reason whatsoever to arrest the accused persons if their target that night was Ayob.

66. Further, it was improbable that Ayob would have taken the drugs to the mamak shop since Taib, if his version was true, had warned him ‘merah merah’ when he first spoke to him. Why would Ayob, the supplier of the drugs as the defence claimed, be prepared to run the risk of detection and possible arrest by doing so.

67. Taib’s version of the facts were so confusing and difficult to fathom. I found him to be an unreliable witness who had scant regard for the truth”. [88] Having considered the evidence in its entirety, we were in full agreement with the analysis and findings of the learned JC in so far as SD-4’s testimony is concerned. We have nothing more of significance to add to it. In any event, the findings of the learned JC were factual findings. It must be given its utmost respect unless sullied by perversities, which we did not find any. [89] Now, assuming for a moment that the appellants’ version of the events were true, could the appellants elude culpability on grounds that they were mere innocent carriers? We do not think, in all the circumstances of the case, that they were so. 31 [90] When the male Malay told them that the yellow plastic bag was meant for SD-4 and requested them to hand it over to SD-4, the appellants did not question the male Malay regarding its contents nor inspected the contents of the said plastic bag. Even after the male Malay had alighted from the first appellant’s car after showing him the way to Taman Jalong and telling him to go to Taman Jalong on his own, both the appellants did not also take the initiative to examine the contents of the yellow plastic bag. [91] The appellants again had the opportunity to inspect/examine the contents of the yellow plastic bag when the first appellant was diverted by SD-4 to wait at the Petronas station for someone to fetch him and guide his way to SD-4’s house. Both the appellants had all the time to examine the contents of the plastic bag while waiting at the Petronas station, but did nothing. [92] Both SP-5 and SP-6 testified that at the point of arrest, the second appellant was seated at the front passenger seat and the yellow plastic bag containing the impugned drugs was found at the footwell of the front passenger seat, contrary to both the appellants’ claim that the second appellant was seated at the rear seat. No motive was adduced why both 32 the witnesses would want to fabricate their evidence. There was equally no reason to propel the two witnesses to fabricate their evidence. Thus, the learned JC was correct in accepting the evidence of both SP-5 and SP-6 over the evidence of the appellants and SD-4. They were mere police officers executing their onerous duties and there is nothing inherently improbable in their evidence. Hence, it follows that the evidence shows that the yellow plastic bag was very proximate to the second appellant. There is no reason for her not to examine the said plastic bag, given by a total stranger, to be given to another person in such suspicious circumstances. The yellow plastic bag was not sealed. It could be open easily and its contents was immediately visible upon opening the plastic bag. [93] In our view both the appellants should have enquired further as to the contents of the yellow plastic bag and should have refused to carry out the request made by the male Malay to hand over the yellow plastic bag to SD-4 if no satisfactory explanation as to its contents was forthcoming from the said male Malay. All the more so when the primary purpose of the male Malay in coming to see the first appellant was to aid the first appellant to go to SD-4’s place, but aborted his purpose half way through and instead requested the first appellant to run errand for him. In such 33 circumstances the conduct and request made by the male Malay must ordinarily arouse the suspicion of a reasonable man to make sufficient enquiries as to the contents of the yellow plastic bag so as to eliminate such suspicions. It is also incumbent upon the appellants to inspect/examine the contents of the yellow plastic bag before moving further, having regard to the manner and circumstances under which the said plastic was handed over to the first appellant. [94] The failure of both the appellants to enquire further as to the contents of the yellow plastic bag and their failure to examine the contents of the said yellow plastic bag would render both the appellants guilty of wilful blindness where the key element is that of suspicion followed by a deliberate decision not to make further investigations or enquiries. In the event of a deliberate failure to make sufficient enquiries under those circumstances, the concept of wilful blindness would apply so as to fasten upon the appellants the necessary knowledge as to the nature of the contents of the yellow plastic bag – see PP v Herlina Purnama Sari [2017] 1 MLRA 499. To put it simply, if he or she deliberately ‘shuts his eyes’ to the obvious because he doesn’t want to know, he is taken to know. 34 Conclusion [95] For all the reasons given, we dismissed both the appellants appeal without more and thereafter affirmed both the convictions and sentences handed down by the High Court upon both of them. Dated: 17th April 2019 ( AHMADI HAJI ASNAWI ) Judge Court of Appeal, Malaysia Counsel Solicitors:- For the 1st Appellant: Haijan Omar with Ravin Jaya Kumar Tetuan Haijan Omar & Co. Peguambela & Peguamcara For the 2nd Appellant: Joshua Kevin with Leng Wie Mun Messrs. Kevin & Co. Peguambela & Peguamcara For the Respondent: Khairul Anuar B. Abd. Halim Timbalan Pendakwa Raya Jabatan Peguam Negara 62100 Putrajaya