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IN THE COURT OF APPEAL AT KUCHING APPEAL NO Q-05(M)-410-11/2016 BETWEEN ILAG MARY MELANIE CAILIPAN ... APPELLANT AND PUBLIC PROSECUTOR ... RESPONDENT [In the matter of High Court of Sabah and Sarawak at Kuching Criminal Trial No. KCH-45A-4/2 of 2016 Between Public Prosecutor And llag Mary Melanie Cailipan] CORAM: HAMID SULTAN BIN ABU BACKER, JCA ABANG ISKANDAR BIN ABANG HASHIM, JCA BADARIAH BINTI SAHAMID, JCA JUDGMENT OF THE COURT The Charge "Bahawa kamu pada 17/11/2014 jam lebih kurang 9.10 malam, bertempat di Unit Khas Pemeriksaan Penumpang, Balai Ketibaan, Lapangan Terbang Antarabangsa Kuching dalam Daerah Kuching, dalam negeri Sarawak, telah mengedar dadah berbahaya iaitu methamphetamine seberat 2,285 gram dan dengan itu 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" Brief facts of case [1] On 17 August 2014, llag Mary Melanie Caillipan ("the Appellant") flew in from Hong Kong and her flight had a transit at Kota Kinabalu Airport before arriving at Kuching International Airport. The Appellant carried two bags on that flight, namely American Tourist Bag (Exhibit P14) and Guest Handbag (Exhibit P13). [2] At the Kuching International Airport, Customs Officers Nur Akmal Hafiez (PW4) and Marlcus Leno Ak. Duis (PW5) were on duty. At random, they spotted the Appellant and instructed the Appellant to scan her luggage bag, later marked in Court, as exhibit ("exh.") P14. During the scanning, PW4 then saw a suspicious image from inside P14 and PW4 hit the buzzer alarm to notify PW5. PW5 instructed the Appellant to bring P14 to the examination counter next to the scanning machine. [3] The Appellant was instructed to open exh. P14 as it was locked with a padlock. This was done in the presence of Customs Officer Luis Ak. Nanga (PW6). Inside exh. P14 they found, among others, 'printed circuit boards' attached to several capacitors and some loose capacitors. PW6 scanned one of the circuit boards and saw some kind of substance hidden inside it. [4] Another Customs Officer Si Kui Sian (PW7) helped PW6 to escort the Appellant to the passenger's examination room. PW6 then briefed Gerry Ho (PW8) and Stephen Ak Pina (PW2) on the matter that pertained to the Appellant. [5] PW8 tested the crystalline substances found by PW6 hidden in one of the capacitors carried inside exh. P14. The result of the test showed that it was suspected to be drugs. PW8 then escorted the Appellant to the Narcotic Office at Jalan Matang for further investigation. As a result of the same tests, PW8 found all the capacitors had contained substances which were also suspected to be drugs. [6] All the items seized from the Appellant were listed in the search list. The OKT and all the seized items were subsequently handed to the Investigating Officer ("the IO") of the case Misell Ak. Rondeng (PW9). [7] The seized capacitors and their contents were handed to Encik Mohd Riduan Md Bakhir (PW3) the government chemist, for analysis. PW3 found that the crystalline substances found inside the capacitors contained 2285 grams of methamphetamine, a dangerous drug listed in the First Schedule under the Dangerous Drugs Act 1952 ("the DDA 1952"). [8] Based on the above factual matrix which essentially depicted the prosecution's case, the Appellant was then charged with an offence of trafficking in dangerous drugs under the DDA 1952, as per the charge quoted above. [9] At the end of prosecution case, the High Court found that the prosecution had successfully established the three essential ingredients in the charge against the Appellant namely, that the substances found in the capacitors in exh. P14 were dangerous drugs within the meaning of the DDA 1952, that she was found in possession of the drugs so found and that the Appellant was presumed to have trafficked in the same drugs. [10] As such, the learned Judicial Commissioner ("JC") was satisfied that a prima facie case had been established against the Appellant, and the Appellant was ordered to enter her defence to the preferred charge of trafficking in dangerous drugs, to wit, Methamphetamine weighing 2,285 grammes. Under the prevailing law, if the Appellant chose to remain silent, she must be convicted of the charge. Case for Defence [11] The Appellant chose to give sworn testimony. The Appellant defence is basically of having no knowledge of the contents of P14. Her version was that, on 12 November 2014 she left Philippines for Hong Kong to survey goods that she may later buy and resell. While in Hong Kong, she received a phone call from her girlfriend Jacklyn asking her to buy "electronic things" at the place called Chiew Siew Fo. On the same day i.e. 14 November 2014, she went to the said place to look for the electronic things when someone whom she described as a black man named Dick called her up by her name and asked her whether she was Jacklyn's friend. When she answered "yes", Dick then passed electronics wire and a bag (P14) which contained the things that Jacklyn bought with a receipts issued to the Appellant. She took them back to her place of stay in Hong Kong i.e. Cause Bay Hostel. At the hostel, she opened up P14 bag as it was heavy and therein she saw the electronic things. She said she was not familiar with the electronic things, so she took the pictures of these electronic things and sent them via email to her boyfriend in Singapore by the name of Choo Chong Soon. When her boyfriend later replied her that what were in the pictures were just electronic things and that the reason why they were heavy is because of the motherboard, the Appellant then decided to put her personal belongings inside P14 as she does not want to carry too many bags on her return flight. On 15 November 2014, the Appellant called Dick to return P14 to him through his hand phone number which was given to her earlier. None of the calls were answered except for one time but she could only hear a voice singing. After her attempt to contact Dick was unsuccessful, the Appellant then went back to Chiew Siew Fo again but he was no longer there. On 16 November 2014, she received a call from Jacklyn. At first, she did not want to bring P14 back to Singapore which was her intended destination but upon persuasion by Jacklyn she agreed to bring it to Kuching as Jacklyn wanted to meet her and collect P14 in Kuching. Upon her arrival at Kuching International Airport on 17 November 2014, her nightmare then began. Finding of High Court [12] Having heard and analysed the Appellant's defence, the Court found that the Appellant's evidence was not plausible and was too incredible to be believed. The Appellant's defence on the involvement of Jacklyn and Dick in this case was an afterthought and it did not raise a reasonable doubt as regards the factum of possession of the drugs on the part of the Appellant. Neither had the defence succeeded in rebutting the presumption of trafficking under section 37 (da)(xvi)of DDA 1952 invoked against the Appellant, on the balance of probabilities. Therefore, the Court found that the defence had failed to cast a reasonable doubt on the overall guilt of the Appellant as per the charge. Thus, the learned JC found the Appellant guilty and sentenced her to the mandatory death penalty. Dissatisfied with that decision, the Appellant had since filed her notice of appeal against the entire decision of the learned JC. Hence the present appeal before us. The Appeal [13] Before us, the learned defence counsel for the Appellant submitted five grounds of appeal as follows, namely: a. The learned JC had erred in law in finding and holding that the prosecution had sufficiently proved that the Appellant was in possession of P14; b. The learned JD had fallen into error by finding that there were no material contradictions between the evidence of PW3 and PW8 particularly on photographs no 18,31 to 82; c. The learned JC had erred in fact and in law when he found that the Appellant had displayed the conduct of wilful blindness; and d. The learned JC had failed to consider whether the Appellant was a mere possessor of the drugs whilst another still at large was the true trafficker having regard to the defence of innocent carrier. [14] After perusing the Records of Appeal and considering submission by both parties, we unanimously agreed to affirm the decision of the learned JC and thus dismissed the Appellant's appeal. These are now our reasons for having so decided. [15] Looking at the complaints raised by the Appellant, it was clear to us that there was no issue pertaining to the nature of the drugs as mentioned in the charge, namely that the substances that were found in the capacitors were dangerous drugs as listed in the First Schedule of the DDA 1952 as Methamphetamines. That having been said, we were satisfied with the evidence of the Chemist which had established the identity of the substances sent to him for his analysis as Methamphetamines weighing 2,285 grammes in total. [16] That would bring us to the complaint as to whether the learned JC had found correctly that the Appellant was in possession of the said drugs found in the various capacitors that were found inside the luggage bag that was seen on the trolley pushed by the Appellant at the Kuching International Airport on 17th November 2014 at about 9.10 pm, as indicated in the preferred charge. [17] In the context of the DDA 1952, there are two ways in which possession may be established by the prosecution in the course of proving the charge for trafficking. One approach is by way of actual possession. The other approach is by way of bringing in aid the presumptive provision as contained under section 37(d) of the DDA 1952. [18] From a perusal of the Grounds of Judgment of the learned JC, he found actual possession as having been established by the prosecution from his appreciation of the evidence. In the course of coming to such conclusion, he had taken into account of the following, as can be seen in his Grounds of Judgement. We reproduce the same, like so: "[18]. In the present case, the drugs were carefully concealed inside the capacitors which indicate an intention to avoid detection and thereby point to the accused's knowledge. In the Court of Appeal's case of Teh Hock Leong v. PP [2008] 4 CLJ 764, it was held that the manner or the method employed to convey or transport the drugs may sometimes furnish evidence of knowledge... [19]. There is no denying that the accused in our present case had physical control and custody of Exh. P14 and knowledge of its contents can be inferred from the circumstances and facts of this case. I found and held that the prosecution had sufficiently proved that the accused was in possession of Exh. P14 and the drugs which were found in it. This call for an explanation as to how the accused came to be in the possession of the said offensive drugs...” [19] We noted that he had referred to the established cases on possession and he had also applied the 'ratio' of each of the cases correctly. In particular, he had correctly cited the following cases as authoritative cases, in paragraphs 12, 13 and 14 of his Grounds of Judgement: "The word "possession" was further elaborated in Chan Pean Leon v. PP [1956] MLJ 237 at page 239, where Thomson J held: "Possession" itself as regards the criminal law is described as follows in Stephen's Digest (9th Edition pg. 304)... A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need... Intention is a matter of fact, which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case..." [20] In paragraph [13] of his Grounds of Judgement, he had cited the case of PP v. Reza Mohd Shah Bin Ahmad Shah [2002] 4 MLJ 13, where the High Court explained proving possession as having to show that the accused had custody or control of the dangerous drugs and that he had the required knowledge of the thing possessed. Custody or control can be proved by direct evidence or by drawing inferences from proved facts. With regard to knowledge, the court is not concerned with the knowledge of a reasonable man but reasonable inference of knowledge to be drawn from a situation. We had no complaint with that decided case. [21] In paragraph [14] of his Grounds of Judgment, he had cited the case of Warner v. Metropolitan Police Commissioner [1968] 2 All E.R. 356 where at 367 Lord Reid speaking for the majority in the House of Lords stated that 'it would be pedantic to hold it must be shown that the accused knew precisely which drug he had in his possession, rather, it would be quite sufficient to prove facts from which it could properly be inferred that the accused knew that he had a prohibited drug in his possession...for actual possession.' Again, we had no quarrel with that high authority. [22] Having gone through the evidence in the Record of Appeal, we had no reason to disturb his appreciation of the evidence and his attendant findings on possession premised on such appreciation by the learned JC. [23] In the circumstances, we agreed with the learned JC that the Appellant had actual possession over the drugs found inside exh. P14. [24] We also had anxiously looked at the evidence of PW3 and PW8 in order to examine the complaint raised by the learned counsel of the Appellant in that there existed material discrepancy in their evidence. In fact this issue was raised before the learned JC who had dismissed the complaint as being unfounded. He had given it considerable amount of judicial appreciation of the issue raised in this regard. We now refer to the relevant paragraphs 22 and 23 in his Grounds of Judgement which evinced that the learned JC's due consideration of the same: [22] In his submission at the end of the prosecution case, the learned counsel submitted that there were grave and serious discrepancies in the evidence of the prosecution as regards to who actually did the opening-up of the capacitors as both PW3 and PW8 claimed to have opened the capacitors. In this respect, both PW3 and PW8 had clearly explained how they did the opening-up or the cutting open of the capacitors. PW8's evidence in re-examination on how he opened up the capacitors are reproduced as follows: "Q: When my learned friend asked you with regards to the issue of opening up the capacitors you told the court that you were the one who opened up the capacitors, would you care to explain to the court how actually you do it? A: Each capacitor was being cut on the upper parts, I cut a small opening on the top and show it to the accused closed it back with a cap put inside the plastic bag and weighed. Q: Could you explain to the court after you opened up the capacitors, how actually you maintained the integrity of each capacitor and its contents therein? A: Like I say before each capacitor after being shown the contents to the accused, we closed back with a cap that we had cut. So none of the contents were removed." In re-examination, PW3 gave evidence on how he opened up the capacitors are reproduced as follows: "Q: Can you tell the Court why the pattern of cutting A2(27) is different from others capacitors label A2(1) to A2(26)? A: This is my first effort to cut open the capacitor and I realise this is not the best way to cut it so I tried another method and found the cutting method on capacitors marked A2(1) to A2(26) is the easiest method. Q: Can you tell the Court whether the different method employs in open up the capacitor could interfere with your findings? A: No. This is the method of taking out the crystalline substance only. Q: Do you recognise all the open up capacitors and how could you identify them? A: There is my laboratory number and my initial on each capacitor. [23] From the evidence of PW3 and PW8 above, it can be clearly seen that when PW8 cut opened the capacitors, he only made a small opening on the top of the capacitors to ascertain its contents in front of the accused. The small opening was closed up again with the cap which had been cut off. PW8 did not cut it off until both the top part and bottom part were severed as what the chemist PW3 did to the capacitors in order to extract its contents for the purpose of the analysis. In my view, there were no material contradictions between the evidence of PW3 and PW8 in this respect and it is important to note that the contents of those capacitors were still intact before they were sent to PW3 for analysis. There is, therefore, no doubt as regards to the identity of the exhibits particularly the crystalline substances which were taken out by PW3 from the inside of the capacitors for analysis and later upon his examination he found that such crystalline substances were to contain methamphetamine." [25] In the circumstances, we were unanimous in our view that the learned JC was correct in the way in which he resolved the issue that had apparently troubled the learned counsel for the Appellant. We found no reason to depart from the learned JC's finding on the issue raised, in relation to photographs nos. 18,31 to 82. It did not escape our observation that all the witnesses who were called to identify the exhibits had identified the exhibits that were produced in Court were the same exhibits which they had handled during the investigation of this case, including by the government chemist. The case of Su Ah Ping v PP [1979] 1 LNS 100 is still sound law on identity of exhibits. We could not see any merit in the complaint laid before us on this issue of identity of the exhibits. [26] On the issue of wilful blindness, it was contended by the learned counsel for the Appellant that wilful blindness did not apply against his client. To briefly restate the concept, no one has described it better than Professor Glanville Williams in his acclaimed work entitled, "Criminal Law." This is how he had described the concept, at page 125, like so: "...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, 'its 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." [27] In the context of this case, there was evidence to show, coming from the Appellant herself that she was rather suspicious of the electrical stuffs such as the capacitors in the bag exh. P14 that was handed over to her by Dick in Hong Kong. Yet, she did not bother to check them, bearing in mind that she had never met, let alone knew Dick prior to that encounter. In the context of wilful blindness, ignorance is no longer bliss. In the circumstances of this case, the Appellant was caught by the wilful blindness concept as she had deliberately shut her eyes to the obvious, as she did not want to know. For that, she was taken to know what she was carrying in exh. P14 from Hong Kong to Kuching. She was therefore unable to raise a reasonable doubt on the prosecution case in that she was in actual possession of the impugned drugs contained in the capacitors found inside exh. P14. [28] As regards, the defence of innocent carrier the decision in the case of Mohamad Radhi Yaakob v. PP [1991] 3 CLJ 2073 is highly instructive. The directions in that case, were explained in the case of Yee Wen Chin v Public Prosecutor [2008] 6 CLJ 773 states as follows: "That case is authority for the proposition that a person charged with trafficking is entitled to an acquittal on that charge by showing that he was a mere possessor of the drugs whilst another was the true trafficker. Whenever such a defence is taken two separate exercises must be carried out by the trial judge. He must first determine as a fact whether that other is a real person or a mere figment of the accused's imagination invented for the purpose of the trial. Next, it he finds that other person to be real the judge must then determine whether that other person is the real trafficker. This is called the Radhi direction and must be administered by a court unto itself when such a defence is taken. See, Sochima Okoye v Public Prosecutor [1995] 3 CLJ 371 CA." [29] Before us, it was contended by learned counsel for the Appellant that the learned JC had failed to consider whether the Appellant was a mere possessor of the drugs whilst another still at large was the true trafficker. In other words, the Appellant was just an innocent carrier. The learned JC, having considered the testimony of the Appellant given during the defence stage and in light of the overall evidence came to the conclusion that her defence was "...not plausible and incredibly unbelievable." [30] Now, the learned JC went on to outline the reasons as to why he had come to that conclusion as can be seen at paragraphs [35] to [38] in his Grounds of Judgement. That went to the finding on the credibility of the Appellant herself. The learned JC had the audio-visual advantage of observing the demeanour of the Appellant as well as those of the other witnesses who had testified before him throughout the course of the entire trial of this case. We found his findings to be reasonable in the circumstances of this case and we found no reason to interfere with his findings, as such. [31] He was correct in his conclusion that the Appellant was not an innocent carrier. A person who deliberately shuts her eyes to the obvious cannot in all probabilities reap the benefits of subsequently pleading a defence of being an innocent carrier. Wilful blindness must necessarily negate a finding that one is an innocent carrier. They cannot co-exist beneficially as a defence. In fact, they negate each other out. [32] Taken in its totality, the evidence of the Appellant could not rebut the presumption of trafficking that was invoked against her. The prosecution had established that the Appellant was in possession of an amount of Methamphetamines which had triggered the operation of the presumption of trafficking against her. That presumption could only be rebutted on the standard of proof on the balance of probabilities by the Appellant. Nothing short of that would suffice. In this case, the Appellant had mentioned names such as 'Jaclyn' and 'Dick' in her cautioned statement to the police, without more. Those 'persons' would appear to have played a big role in the unfolding of her narrative as to what had transpired in Hong Kong, where the capacitors found in exh. P14 appeared to have their genesis. But nothing more helpful was forthcoming in this regard from the Appellant. This Court had, in the case of Tobechi Chinonso Madu v. PP [2015] 1 LNS 57 occasion to say the following: "The mere fact that Ossy's name was mentioned during the police investigation is not evidence that Ossy actually exists. How were the police to investigate the existence of this person when the appellant did not even give his full name and his address? The poor investigating officer may end up chasing a wild goose." [33] The fact of the matter is that in a legal situation where an accused person has the burden to rebut a presumption that has been invoked against him, he bears a heavier burden than just to raise a reasonable doubt in order to earn an acquittal. In such a situation, such an accused person has to lead evidence, if need be, in order to dislodge that legal presumption of a factual nature, namely that he was a drug trafficker, on the balance of probabilities. See, generally the decision of the Supreme Court in the case of Mohamed Radhi bin Yaakob v PP [supra]. [34] Since the learned JC had found that the 'persons' named by the Appellant to be incredible to be believed to even exist, it had not become necessary for him to consider the second test of whether the other person [not fictitious] was indeed the trafficker. There was therefore no departure or non-compliance with the Mohd Radhi's directions in this case. [35] In the circumstances of this appeal, we were satisfied that the learned JC was correct when he found that the Appellant had failed to raise a reasonable doubt on the issue of possession that was established against her. But that in itself would not mean that she was therefore guilty of trafficking in the dangerous drugs found in her possession. Mere proof of possession does not equate to proof of trafficking. In this case, the Appellant had also failed to rebut that presumption of trafficking under section 37(da) of the DDA 1952 which was invoked against her. The incriminating evidence laid against her by the prosecution witnesses was not successfully rebutted by her. The Appellant had failed to raise a reasonable doubt as to her guilt. We agreed with the learned JC that the prosecution had proven its case against the Appellant beyond reasonable doubt. Our findings [36] In the final analysis by us of the Records of Appeal and the able submissions by both learned counsel and the learned Deputy Public Prosecutor, we were of the considered opinion that there was no merit in this appeal, which otherwise would have justified us invoking our appellate power to disturb the findings and ultimate decision of the learned JC. Conclusion [37] In the upshot therefore, we had unanimously dismissed this appeal. The conviction entered against the Appellant on the preferred charge and sentence of death imposed by the learned JC on the Appellant, dated 21 October 2016 was thereby affirmed by us. Dated: 1 November 2018. ABANG ISKANDAR BIN ABANG HASHIM Court of Appeal Parties appearing: For the Appellant: Mr. Bernard Phillip; Messrs B. P. Lanat & Co. Adv. For the Respondent: Miss Norinna binti Bahadun; Deputy Public Prosecutor, Attorney General's Chambers. Cases referred to: