Jallow Cherno (W.Gambia : PP/No. DC 304462) v Pendakwa Raya (B-05-433-11/2016)

Court of Appeal of Malaysia18 Jan 2018B-05-433-11/2016

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Refers toCriminal Procedure CodeExternal
“psule SP8 12.40 p.m. Serdang Hospital 01 capsule SP6 [24] Learned counsel further submitted that the single charge filed against the appellant, run foul of section 163 and section 153 of the Criminal Procedure Code (CPC) and the charge was bad for illegality. Referring to the subject matter of the charge preferred agai”
Refers toDangerous Drugs ActExternal
“CA 2 JUDGMENT OF THE COURT Introduction [1] The appellant was charged with trafficking in dangerous drugs, to wit 456.2 grams of Methamphetamine, an offence punishable under section 39B(2) of the Dangerous Drugs Act 1952 (DDA). The offence was said to have been committed on 01.3.2012 at around 01.00 p.m., at Bangunan T”
Refers toPENAL CODELegislation
“cused was later caught but Jayakumar was killed in a shoot-out with police.The accused was charged under section 3A of the Firearms (Increased Penalties) Act 1971 read together with section 34 of the Penal Code. The charge stated that while they were robbing a goldsmith’s shop, the accused together with another person”
Cites[1934] PC 22External
“lusion [39] On the foregoing reasons, we find that no substantial miscarriage of justice had occurred to the appellant that would warrant appellate intervention (see: Sheo Swamp v King Emperor AIR [1934] PC 22; Reza Malek Zadeh Sahabali v PP [2014] MLRHU 1815, [2014] 3 MLJ 380). There are no appealable errors committed”
Cites[1949] MLJ 131External
“His Lordship Harun J. (as he then was) held at pp. 76-77: “The question then is whether the failure to comply with section 163 is an illegality or an irregularity. In See Yew Poo v Public Prosecutor [1949] MLJ 131, the Court of Appeal held that if “each of the offence could have been the subject of a separate charge, a”

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Cites[2014] MLRHU 1815External
“ind that no substantial miscarriage of justice had occurred to the appellant that would warrant appellate intervention (see: Sheo Swamp v King Emperor AIR [1934] PC 22; Reza Malek Zadeh Sahabali v PP [2014] MLRHU 1815, [2014] 3 MLJ 380). There are no appealable errors committed by the trial judge. In our view, the conv”

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1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN) RAYUAN JENAYAH NO : B – 05 – 433 - 11/2016 ANTARA JALLOW CHERNO … PERAYU (W/GAMBIA : PP/NO.DC 304462) DAN PENDAKWA RAYA … RESPONDEN [Dalam perkara mengenai Perbicaraan Jenayah No. 45A-07-01/2013 Dalam Mahkamah Tinggi di Shah Alam, Selangor Antara Pendakwa Raya Dan Jallow Cherno W/Negara Gambia, Pasport No. PC 304462] CORAM : VERNON ONG, JCA YAACOB HAJI MD SAM, JCA HARMINDAR SINGH DHALIWAL, JCA 2 JUDGMENT OF THE COURT Introduction [1] The appellant was charged with trafficking in dangerous drugs, to wit 456.2 grams of Methamphetamine, an offence punishable under section 39B(2) of the Dangerous Drugs Act 1952 (DDA). The offence was said to have been committed on 01.3.2012 at around 01.00 p.m., at Bangunan Terminal Utama KLIA Aras 3, Terminal Utama Lapangan Terbang Antarabangsa Kuala Lumpur, Selangor (KLIA). [2] At the end of the prosecution’s case, the learned trial judge ruled that the prosecution had failed to make out a prima facie case against the appellant. The appellant was acquitted and discharged without his defence being called. [3] The prosecution appealed to the Court of Appeal on the order of acquittal and discharge of the appellant. The Court of Appeal had allowed the prosecution’s appeal and directed the appellant to enter his defence on the charge. 3 [4] At the conclusion of the trial, the appellant was found guilty, convicted and sentenced to death by the learned High Court Judge. [5] Aggrieved with the conviction and sentence, the appellant appealed to this Court. We heard the appeal on 18 January 2018 and after hearing the parties, we unanimously dismissed the appellant’s appeal. We now furnish our reasons. The prosecution evidence [6] The prosecution’s case disclosed the following facts. On 1.3.2012 at about 9.00 a.m., an immigration officer Yun Fatimah binti Hassan (SP5) who was on duty at the Operation Office MTB KLIA denied entry into Malaysia to the appellant, a Gambia citizen, upon discovering that the China and India visa in the appellant’s passport PC 304462 (P10) was faked. The appellant was brought to the holding lounge of the KLIA for deportation back to Bangkok. An arrangement was made for the appellant to be deported on the same day on Thai Airways at about 12.30 p.m. [7] While waiting for the deportation, at about 12.30 p.m. the appellant requested from the immigration officer in-charge of the holding lounge Noor Azizan bin Adnan (SP4) to take a bath at the holding lounge’s washroom. After about 10 minutes, SP4 went to the washroom and saw the appellant come out from one of the toilet cubicle. When the appellant saw SP4, the 4 appellant showed him capsules which were placed on tissue holder of the toilet cubicle in the washroom. SP4 suspected that the capsules contained drugs. SP4 immediately informed his superior and the customs office of the KLIA. Two customs officers, Johnson Pedro Ateg together with Muhamad Hasrul bin Mohd Fauzi (SP7) arrived at the holding lounge and met the appellant. The washroom was cordoned. SP7 entered the washroom and found 13 capsules. No one was in the washroom at that time except the appellant. The appellant was detained and brought to Cawangan Pemeriksaan Penumpang 1 (CPP1) of the KLIA. There, SP7 scanned the appellant’s stomach. It revealed a suspicious image. The appellant was arrested and taken to Pejabat Narkotik Kastam KLIA. The appellant and the 13 capsules were then handed over by SP7 to the investigating officer, Omar bin Hamzah (SP10). [8] SP10 took custody of the appellant and the 13 capsules (P14). Later at about 5.00 p.m., SP10 brought the appellant to Serdang Hospital. An X-ray was conducted by Nor Laily bin Mohd Nor (SP3) on the appellant. Image of the x-ray showed some foreign bodies in the large intestine of the appellant (P9A & P9B). The appellant was then placed in Ward 6C Room No. 28 of the hospital for further examination. At the hospital, the appellant passed out a total of 41 capsules from his anus. SP10 took custody all the capsules. On 6.3.2012, the appellant was discharged from Serdang Hospital and was detained in the lock-up. 5 [9] The 54 capsules, 13 recovered in the washroom Holding Lounge KLIA and 41 recovered at the Serdang Hospital, were later handed over by SP10 to the Chemistry Department Petaling Jaya for analysis. The chemist, Zulkfeli bin Mohd Edin (SP9), confirmed that the 54 capsules contained a total of 456.2 grams of Methamphetamine (combination of 41 capsules total 347.7 grams and 13 capsules total 108.5 grams). Methamphetamine is listed in the First Schedule of the DDA (P18). Findings at the end of the prosecution’s case [10] At the end of the prosecution’s case, the learned trial judge considered the following ingredients to be proven by the prosecution (pp. 8 – 12 ROA Jilid 1):

(a) whether the dangerous drug is Methamphetamine as listed in the First Schedule of the DDA;

(b) whether the dangerous drug was in the possession of the appellant; and

(c) whether the appellant had committed the act of trafficking in the dangerous drug at the place and time stated in the charge. [11] In respect of the first ingredient, the learned trial judge accepted the evidence of the chemist SP9 on his analysis as to the nature and weight of the drugs (para 12 of the Ground of Judgment, p. 10 ROA Jilid 1). It is not in dispute that the first ingredient has been proved. 6 [12] As for the second ingredient, from the evidence of SP5, SP4, SP3 and SP7, the learned trial judge found that the appellant was in custody and control of the dangerous drugs. The learned trial judge was fully aware, and he stated so in his judgment, that physical custody or control by itself is insufficient for there must be the accompanying evidence of knowledge of the custody and control of the said drugs. To establish possession of the said drugs by the appellant, or to impute his possession of the said drugs, it must be shown that the appellant had knowledge of the drugs found to be in his possession. Relying on Public Prosecutor v Chia Leong Foo [2006] 6 MLJ 705, the learned trial judge held as follows (at pp. 11 to 12 ROA Jilid 1): “14. Saya mendapati Tertuduh adalah orang yang terakhir menggunakan bilik air di Holding Lounge tersebut di bawah pengawasan SP4. Saya juga berpuas hati tidak ada orang lain yang menggunakan bilik air di Holding Lounge kecuali Tertuduh. Tertuduh adalah orang yang menunjukkan 13 ketulan Kristal jernih tersebut kepada SP4 selepas Tertuduh memasuki bilik air tersebut selama 10 minit. Berdasarkan kepada keterangan circumstances yang dikemukakan oleh pihak pendakwaan, saya berpuas hati pihak pendakwaan telah berjaya membuktikan elemen pemilikan melalui keterangan langsung. 7

Saya juga mendapati keterangan bahawa 41 kapsul tersebut telah dikeluarkan daripada dubur Tertuduh semasa Tertuduh ditahan di Hospital Serdang selepas menjalani ujian x-ray yang mengesahkan adanya benda asing di bahagian usus besarnya. Justeru itu saya juga berpuas hati pihak pendakwaan melalui keterangan langsung telah berjaya membuktikan wujudnya elemen milikan sebenar oleh Tertuduh ke atas 41 kapsul tersebut.

Berdasarkan kepada penilaian terhadap keterangan kes pendakwaan, saya mendapati bahawa pihak pendakwaan telah berjaya membuktikan kes melalui keterangan langsung yang Tertuduh mempunyai jagaan dan kawalan yang ekslusif terhadap dadah-dadah tersebut dan mempunyai pengetahuan ke atasnya (Rujuk kes Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705).”. [13] In respect of the third ingredient, the learned trial judge considered the fact that the appellant was travelling from Bangkok, Thailand to Malaysia with the impugned drugs concealed in his stomach. The appellant was in actual possession of the impugned drugs. Since the quantity of the Methamphetamine so found in the possession of the appellant was several times greater than the statutory minimum of 50g under section 37(da) of the DDA, his Lordship concluded that the appellant was trafficking in the said drug. The learned trial judge held as follows (p. 12 of ROA Jilid 1): 8 “17. Ekoran itu Mahkamah dapati bahawa pihak pendakwaan telah membuktikan elemen pemilikan sebenar melalui keterangan langsung justeru itu saya mendapati Tertuduh telah memperedarkan dadah berbahaya tersebut berdasarkan kepada pemakaian anggapan pengedaran di bawah seksyen 37(da) Akta Dadah Berbahaya 1952 disebabkan berat bersih dadah-dadah tersebut adalah sebanyak 456.2 gram.” [14] The learned trial judge, however further proceeded and made a finding that since the appellant had been denied entry into Malaysia and not passed the Malaysian immigration counter and the impugned drugs were found while the appellant was detained at the holding lounge of the KLIA for deportation, the appellant was therefore deemed as being outside Malaysia. Thus, his Lordship held the prosecution had failed to make out a prima facie case, proceeded to acquit and discharge the appellant on that sole ground. [15] On appeal by the Public Prosecutor, this Court had allowed the appeal and directed the appellant to enter his defence. 9 The defence [16] The appellant elected to give evidence on oath. He also called two other witnesses to give evidence for the defence, Dr Mohamed Zahir Fitri bin Ahmad of Hospital Serdang (SD2) and Mohamed Fesal bin Zakaria (SD3) the Digi Telecommunication officer. [17] The evidence of the appellant was recorded by the learned trial judge in great detail, is as follows: “14. The accused said he is a Gambian resided in Nigeria, married and have 3 children. His occupation as declared is buying Toyota motor spare parts from Malaysia. He earned about USD1000 to USD1500 per month, depending on the sales.

He has been to Malaysia twice prior to the arrest, that was in early November and end of November 2011, for the purpose of buying the Toyota motor spare parts. On his second visit to Malaysia, he met Karim at spare parts shop in Klang. During the acquaintance, Karim offered him a business to bring chemical substance for Karim and Karim will pay him RM2500 for the delivery. 10

Once he returned home to Nigeria, in December 2011, one guy by the name of Emmanuel called him and told him that Karim gave the accused phone number, and told the accused that he wanted to meet accused in Doula, Cameroon. A few days later, the accused travelled to Doula, Cameroon. He then met Emmanuel to get the chemical substance but was told by Emmanuel that the chemical substance was not ready. Emmanuel told the accused if he wants to travel to Malaysia, the accused should inform him a week in advance.

In the mid of February 2012, the accused contacted Emmanuel and told him that we will be going to Malaysia in one weeks’ time and Emmanuel requested the accused to come over to Doula, Cameroon. Then the accused went to Doula, Cameroon and met Emmanuel. The accused stayed in the Maxis Hotel in Doula, Cameroon for a week waiting for the chemical substance to be ready.

On the 27 February 2012, Emmanuel came with his four friends bringing along 54 capsules of chemical substance and told the accused to swallow it. The accused refused and then Emmanuel told the accused he must swallow it or else Emmanuel would harm the accused or finish his family. Emmanuel went out for 30 minutes and returned, and then Emmanuel again requested the accused to swallow the capsules but the accused still refused to do it. 11

Emmanuel went inside the toilet and brought back two syringes and told the accused that he would inject the accused so that the accused could swallow the capsules easily. However the accused refused to the injection. Emmanuel threaten the accused again by saying "you must deliver the chemical substances to Karim, or else I would kill you and finish off your family”, and asked the accused to keep quiet. Emmanuel took out a pen knife, hold the accused and placed the pen knife at his waist. A Few minutes later the accused went into sleep and he was awakened the next morning by Emmanuel and his friends.

When the accused woke up the next morning, his said that his tummy was painful below the waist and back, and his anus was also bleeding. The accused asked Emmanuel what has happened to him and Emmanuel told him that he has inserted the capsules into his anus. Emmanuel also instructed that the accused must deliver the capsules to Karim. The accused told Emmanuel that he is not going to continue his journey and had to cancel the trip because his anus was bleeding and he had a pain in his stomach. Emmanuel called Karim and the accused spoke to Karim. The accused informed Karim that he was going to cancel his trip to Kuala Lumpur but Karim told him that he must continue the trip to Kuala Lumpur or else those guys will harm him. 12

The accused was asked to come down to the hotel lobby and there was a taxi waiting to take him to the airport. The accused went into the taxi and proceeded to the airport. They followed the taxi from behind to ensure the accused check in and boarded the flight. The flight took off from Doula, Cameroon to Addis Ababa, then to Bangkok and KLIA.

During the transits, the accused said that he did not complaint to any airport authorities or the securities as he was still confused due to the threat.

As soon as he arrived at KLIA, he bought a sim card from Digi with the mobile number 016-2750537, and proceeded to the immigration counter to get his passport stamped but he was denied entry. Then, he called Karim and told him that the Immigration denied him from entering Malaysia and Karim told him that he wanted to speak to the Immigration officer. The accused gave phone the Immigration officer. The immigration officer was not satisfied with Karim’s explanation and insisted to deport the accused. She called another officer to take the accused for deportation process. While waiting to be deported, the accused said that his stomach was aching and in pain. With the permission of the immigration officer, he went to the toilet and later shit out 13 capsules and left the capsules behind the wall. He went out of the toilet to inform the immigration officer about chemical capsules, with the intention the immigration 13 officer can help him to deliver the capsules to Karim as he was denied entry to Malaysia and to avoid the threat from Emmanuel and his friends, as he found out that Emmanuel and his friends are gangster/mafia.

The accused was then handcuffed and brought to the immigration office and later to the Serdang Hospital. X ray was taken and there were some capsules in his stomach. Subsequently he was admitted in Serdang Hospital and another 41 capsules were shit out from his anus.”. [18] SD2 testified that an x-ray was conducted on the appellant’s abdomen. His bowel was detected to be filled with foreign bodies. SD2 agreed with the suggestion of the defence counsel that there was a possibility that the foreign bodies present in the bowel could have been inserted through the anus. [19] SD3 testified that the mobile telephone number 016-3429908 mentioned by the appellant as belongs to one Karim was registered under the name of one Nasri and the date of registration was 24.2.2012 (P26). 14 Findings at the conclusion of the trial [20] After considering the defence, the learned trial judge found that the appellant had not succeeded in raising a reasonable doubt on the prosecution’s case. The crux of the appellant’s defence, was that the impugned drugs (54 capsules) were inserted into his body through his anus against his free will and under threat of his life by Emmanuel. The learned trial judge found that there was overwhelming evidence that the appellant had possession and knew he was carrying the impugned drugs for the purpose of trafficking. The learned judge found the appellant’s version of how the 54 capsules had come into his stomach as being implausible. [21] The appellant was thus convicted and sentence to the mandatory death penalty as provided under section 39B(2) of the Act. Hence the appeal before us. The Appeal [22] At the outset, learned counsel for the appellant canvassed the following two (2) grounds of appeal, namely, that: 15

(a) the learned trial judge erred in convicting the appellant despite the charge framed against him being defective;

(b) the learned trial judge erred in imputing knowledge of the existence of the drugs on the appellant. Our Deliberation and Decision [23] We shall deal first with the first ground of appeal. This is actually the principal ground relied upon by the learned counsel in his submission attacking the conviction and sentence passed against the appellant and was raised for the first time before us. It was submitted by the learned counsel for the appellant that the appellant was convicted based on a defective charge, hence warranting appellate intervention. Learned counsel contended that the drug exhibits, 54 capsules, were recovered on several occasions and in different places. The first occasion was on 1.3.2012, a total of 13 capsules recovered at the washroom, Holding Lounge, KLIA. The second occasion was between 1.3.2012 to 3.3.2012, a total of 44 capsules recovered at the Serdang Hospital. Learned counsel further contended that from the evidence adduced, the 54 capsules clearly recovered in different locations, time and by different officers, which detailed is as follows: 16 Date Location Recovery (Capsule) Evidence by/Officers 1.3.2012 12.00 p.m. Washroom at Holding Lounge KLIA 13 capsules SP4 5.25 p.m. Serdang Hospital 10 capsules SP6 9.00 p.m. Serdang Hospital 07 capsules SP6 10.35 p.m. Serdang Hospital 05 capsules SP6 2.3.2012 4.00 a.m. Serdang Hospital 03 capsules SP8 6.25 a.m. Serdang Hospital 01 capsules SP8 12.35 p.m. Serdang Hospital 02 capsules SP8 12.50 p.m. Serdang Hospital 08 capsules SP6 5.35 p.m. Serdang Hospital 03 capsules SP6 3.3.2012 1.32 a.m. Serdang Hospital 01 capsule SP8 12.40 p.m. Serdang Hospital 01 capsule SP6 [24] Learned counsel further submitted that the single charge filed against the appellant, run foul of section 163 and section 153 of the Criminal Procedure Code (CPC) and the charge was bad for illegality. Referring to the subject matter of the charge preferred against the appellant, for an offence of trafficking of 456.2 gram Methamphetamine, learned counsel further argued that the single charge framed against the appellant was for the total net weight of all 54 capsules recovered in both KLIA and Hospital Serdang. Hence, it was contended that two separate charges shall be preferred for every distinct offence and be tried separately. Federal Court 17 decision in Ravindran a/l Ramasamy v Public Prosecutor [2015] 6 MLJ 509 was cited in support of the proposition. [25] In Ravindran a/l Ramasamy, the accused and one Jayakumar had entered a goldsmith’s shop and while the accused was breaking the glass display cases to get the jewellery, Jayakumar fired a shot from a gun he was holding. When the shop’s jeweler threw chairs and other things at them, Jayakumar had fired a shot at the jeweler but he missed. The duo then fled the scene with their loot. The accused was later caught but Jayakumar was killed in a shoot-out with police.The accused was charged under section 3A of the Firearms (Increased Penalties) Act 1971 read together with section 34 of the Penal Code. The charge stated that while they were robbing a goldsmith’s shop, the accused together with another person (Jayakumar), who had since died, had discharged a shot from a firearm which could have caused death and at that time the accused knew Jayakumar had a gun in his custody or control. The High Court had convicted the accused on the charge. The Court of Appeal dismissed the accused’s appeal. On appeal, the Federal Court had held that the charge was bad for duplicity and not curable under section 422 of the CPC since the charge described two offences or parts of two offences, one under section 3 and the other under section 3A run foul of section 163 of the CPC. The defect was therefore not a mere irregularity but an illegality. 18 [26] Section 163 of the CPC provides that for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the case mentioned in sections 164, 165, 166 and 170. Section 153 states that the charge shall contain such particulars as to the time and place of the alleged offence, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. [27] On the issue of defective charge and illegality, there is a long list of decided cases which espoused the view that where each of the offences could have been the subject of a separate charge, and could have been proceeded with one trial, the duplicity was an irregularity which could be cured by section 422 of the CPC, provided that the accused was not prejudiced and there was no failure of justice occasioned by the irregularity (See Yew Poo v Public Prosecutor [1949] 1 MLJ 131). [28] In the case of Kasanda Emmanuel lwn Pendakwa Raya [2013] 2 MLJ 833, the accused passed motion in six occasions and discharged a total of 37 rubber pellets. The pellets contained 133.12 gr of heroin and 26.10g of monoacetylmorphines. The accused was charged under a single charge for an offence under section 39B DDA and found guilty and sentence to death. The Court of Appeal had dismissed the accused’s appeal and affirmed the conviction and sentence. 19 [29] There is another case of Adekunle Johnson Oshodi v Public Prosecutor [1997] 3 MLJ 644, where each of the three accused persons discharged foreign bodies in few separate occasions and times, all in all, 22, 44 and 50 foreign bodies respectively. A single charge was preferred against each of the accused for the drugs that contained in their respective foreign bodies. The 22 pellets contained 117.8 gr of heroin, 44 pellets contained 231.7 gr of heroin and the 50 pellets contained 262.8 gr of heroin, respectively. The Court of Appeal had dismissed the accused appeals, respectively and affirmed the conviction and the death sentence. [30] In Public Prosecutor v Mohamed Fathi bin Haji Ahmad [1979] 2 MLJ 75, the prosecution’s appeal was allowed against an order of the Magistrate for the accused to be given a bound over of good behavior for three months under section 173A of the CPC. The High Court judge had substituted the order of the Magistrate with a conviction under section 471 read with section 465 of the Penal Code and sentenced the accused to a fine of $10,000 in default two years imprisonment. His Lordship Harun J. (as he then was) held at pp. 76-77: “The question then is whether the failure to comply with section 163 is an illegality or an irregularity. In See Yew Poo v Public Prosecutor [1949] MLJ 131, the Court of Appeal held that if “each of the offence could have been the subject of a separate charge, and could have been proceeded with at one trial, the duplicity was merely an irregularity, which can be cured under the provision of 20 section 122 provided that the accused was not prejudiced and there was no failure of justice occasioned by the irregularity.” In the instant case, the accused was represented by counsel and was fully aware that the charge was in fact a consolidation of the three amended charges to which he had earlier claimed trial. If the process was reversed, that is to say, if the prosecution had proceeded with the three amended charges there would have been only one trial. I am satisfied that the accused was neither prejudiced nor has there been a failure of justice and I accordingly hold that the charge though bad for duplicity is an irregularity which is cured by section 422.”. [31] Mohamed Fathi case demontrates that a single charge was preferred against the accused although the accused had committed three separate offences under section 471 of the Penal Code. The initial our charges preferred against the accused were later reduced to three amended charges. Later, these three amended charges were ‘telescoped’ into a single charge. The High Court held that there is no illegality that had occurred. [32] In the instant case, learned counsel for the appellant essentially contended that the appellant should be separately charge for the recovery of 13 capsules at the washroom, Holding Lounge KLIA, and for another 41 capsules recovered at Hospital Serdang. It was submitted that the two activities or recovery constituted two separate and distinct 21 offence. With due respect we are not in agreement with the learned counsel. We found that the first 13 capsules were recovered at the washroom of the Holding Lounge KLIA. Upon that discovery, the appellant was detained and brought to Cawangan Pemeriksaan Penumpang 1 (CPP1) of the KLIA. There, SP7 scanned the appellant stomach. It revealed a suspicious image. Only then the appellant was taken to Hospital Sedang for further observation during which another 41 capsules were recovered. In other words, the suspicious image was already detected or found in the appellant’s stomach and subsequently proven to be contained 41 capsules that are similar to the 13 capsules recovered earlier. Under the circumstances, we are of the view that it is just and proper for a single charge to be preferred against appellant for the whole quantity of the drugs so found within the stomach of the appellant. A charge is only bad for duplicity or illegality when it alleges facts constituting two different activities altogether which is not in the instant case. The appellant has not been prejudiced and there was no failure of justice occasioned by the single charge. [33] We now turn to the second ground of appeal, on the issue of knowledge of the appellant on the impugned drugs, the 54 capsules that contained 456.2 gram Methamphetamine, the subject matter of the charge. 22 [34] In PP v Badrulhisham bin Baharom [1988] 2 MLJ 585, it was held that to established possession by an accused person of any dangerous drug or to impute his possession of the said drugs, it must first be shown that he had knowledge of the drugs which were found to be in his possession. [35] On the issue of knowledge of the appellant, the trial judge said in his judgment as follows (page 29 – 30 ROA Jilid 1): “33. I also rejected the submission of the defence counsel that the inference from the positive conduct of the accused in giving full cooperation to the authority proved that he could not have known the existence of the drugs in the capsules. I had scrutinized the evidence of SP4 and SP4 during cross-examination denying that the accused called him to show the capsules. SP4 in his evidence testified that after waiting than 10 minutes, he went to check the accused who was in the toilet. Upon reaching the toilet, he saw the accused came out from the toilet. When the accused saw him and showed him the capsules. I find the submission of the defence counsel that he has no knowledge of the capsules containing drugs devoid any merit rejected by me.”. 23 [36] The learned trial judge went on to say (p. 31- 32 ROA Jilid 1): “40. After evaluating the evidence of the accused, I find the accused was the one who contacted Emmanuel informing him of his intention to collect the chemical substances before coming to Kuala Lumpur. In December 2011, he took an effort all the way from Nigeria to travel to Doula, Cameroon, just to collect the chemical substances but unfortunately the chemical substances were still not available. Subsequently, in February 2012, one week before coming to Kuala Lumpur, he contacted Emmanuel, asking him for the chemical substances. He then travelled to Doula and stayed in Maxis Hotel for a week. I find the accused had voluntarily came to Doula, Cameroon for the purpose of collecting the chemical substances. Based on these facts I again made the finding that the allegation by the accused that he received threats by Emmanuel and his friends on the last day is highly improbable because I find there is no reason for Emmanuel and his friends to threat, inject and inserted the 54 capsules, by force, into the accused anus. 24

After scrutinizing the entire evidence before the Court, the 54 capsules containing drugs inside the body of the accused was in his full knowledge and consent.”. [37] We find no appealable error in the findings of the learned trial judge which was based on the evidence. We see no reason why the trial judge should not make the necessary inferences as he has stated in the above passages. It is trite law that knowledge could not be seen but could be inferred from one’s conduct. It is obvious to us that the appellant was not forced or under threat of his life to place the 54 capsules into his stomach. He travelled all the way from Doula to Addis Ababa, and subsequently to Bangkok and KLIA as his final destination. He had ample time and opportunity to complain to the airport authorities of his predicament, that his stomach was filled with the capsules which may put him into a serious risk of his life if the capsule broke or leaked. However, he did not do so. In the premises, we found that the learned trail judge has made the proper findings and inference to be drawn from the facts and circumstances that the appellant knew that he was carrying drugs and knew the contents in those capsules. [38] We are satisfied that the learned trial judge had made a proper appraisal of the entire evidence before him and had arrived at a correct, fair and just decision. His findings are in accord with the evidence before him. The evidence is entirely overwhelming. We agree with the trial judge findings that the evidence given by the appellant is inherently incredible, and hence 25 we see no reason whatsoever to disturb the findings. It is trite law that an appellate court should be slow in disturbing a finding of facts by the trial judge unless such finding is manifestly perverse which is not in the instant case (Herchun Singh & Ors v. Public Prosecutor [1969] 1 MLRA 832). Conclusion [39] On the foregoing reasons, we find that no substantial miscarriage of justice had occurred to the appellant that would warrant appellate intervention (see: Sheo Swamp v King Emperor AIR [1934] PC 22; Reza Malek Zadeh Sahabali v PP [2014] MLRHU 1815, [2014] 3 MLJ 380). There are no appealable errors committed by the trial judge. In our view, the conviction is safe. [40] We, therefore, dismissed the appeal and affirmed the conviction and sentence of the High Court. t.t. (YAACOB BIN HAJI MD. SAM) Judge Court of Appeal Malaysia Dated 08 May 2018 26 Counsel for the Appellant: Kitson Foong Messrs Kit & Associates Advocates & Solicitors Suite 195 – 1, Sri Wangsaria Jalan Ara, Bangsar Baru 59100 Kuala Lumpur Wilayah Persekutuan Counsel for the Respondent: Ku Hayati binti Ku Harun Timbalan Pedakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan & Rayuan Aras 5, No. 45, Lot 4G7, Presint 4, Persiaran Perdana 62100 Putrajaya

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Case metadata

Court: Court of Appeal of Malaysia
Decision date: 18 Jan 2018
Case number: B-05-433-11/2016
Coram: YA DATUK VERNON ONG LAM KIAT; YA DATUK YAACOB BIN HAJI MD. SAM; YA DATUK HARMINDAR SINGH DHALIWAL
Practice area: Dangerous drugs — Appeal against conviction and sentence — Trafficking in 456.2 grams Methamphetamine — Appellant was arrested after 54 capsules were recovered (13 recovered in the washroom and 41 capsules passed out from his anus) - Whether the dangerous drug was in possession of the appellant - Whether the appellant had committed act of trafficking in the dangerous drug at the place and time stated in the charge - Whether prosecution make out a prima facie case- Whether the appellant succeeded in raising a reasonable doubt on the prosecution’s case - Whether substantial miscarriage of justice had occurred to the appellant that would warrant appellate intervention - Whether the conviction is safe — Criminal Procedure Code [Act 593] s 153, s163, s422
Version: 3304_jallow cherno.pdf 1
Published: 7 May 2018
Source ID: 35e587ce-7a63-4d55-893e-d382303bde4e

Catchwords

Dangerous drugs — Appeal against conviction and sentence — Trafficking in 456.2 grams Methamphetamine — Appellant was arrested after 54 capsules were recovered (13 recovered in the washroom and 41 capsules passed out from his anus) - Whether the dangerous drug was in possession of the appellant - Whether the appellant had committed act of trafficking in the dangerous drug at the place and time stated in the charge - Whether prosecution make out a prima facie case- Whether the appellant succeeded in raising a reasonable doubt on the prosecution’s case - Whether substantial miscarriage of justice had occurred to the appellant that would warrant appellate intervention - Whether the conviction is safe — Criminal Procedure Code [Act 593] s 153, s163, s422Dangerous Drugs Act [Act234] s 37 (da), s39B(2)

Parties

Jallow Cherno (W.Gambia : PP/No. DC 304462) - appellant - ejudgment_parties
Pendakwa Raya - respondent - ejudgment_parties

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Catchwords