Johannes Jacobus Venter v Public Prosecutor (B-05(M)-61-01/2018)

(a) The prosecution called 5 witnesses. According to the evidence led by the prosecution, acting on information received, on 11 September 2014, Inspector Sherman Jackson Jon Bosco (PW2) led a team of 5 narcotics officers to the Kuala Lumpur International Airport at Sepang. The raiding team arrived there at about 7.45 a.m. and took positions near the 8 exits points (“gates”) at the airport. At about 9.20 a.m., the appellant, who had just arrived from Singapore, was seen exiting gate 3 and walking towards a taxi pushing a blue luggage bag (exhibit P25) (“luggage bag”) wrapped in clear blue plastic film and carrying a laptop bag.

(b) PW2 approached the appellant and detained him after identifying himself. The appellant was searched and no incriminating items were found on him. Following that the appellant was taken to IPD Sepang for his bags to be examined. At about 10.15 a.m., PW2 opened the luggage bag with a key given to him by the appellant. The contents in the luggage bag and laptop bag were examined in the presence of the appellant. The luggage bag contained clothes. The appellant informed PW2 that the clothes were his. When the clothes were removed, PW2 saw a zip at the base of the luggage bag. On opening the zip, PW2 found 3 parcels (exhibits P37, P38 and P39) wrapped in gift paper and clear plastic. He removed the gift paper and found 2 packages wrapped in aluminium foil in each parcel. Inside each aluminium foil package, there was a clear plastic packet containing substance suspected to be drugs. Criminal Appeal No: B-05(M)-61-01/2018 4

(c) PW2 testified that apart from these items, he also found a toothbrush, two combs and other items in the luggage bag. All the items were seized. No incriminating items were found in the laptop bag.

(d) PW2 then labelled the items seized by writing the date and placing his signature on them and then prepared a search list. A police report was also lodged on the discovery and arrest of the appellant. At about 3 p.m., he handed the appellant and the items seized to the investigating officer, Inspector Adzilee bin Suili (PW5).

(e) Under cross examination, it was put to PW2 that the appellant had never admitted to him that all the clothings in the luggage bag belonged to him. It was further put to him that the toothbrush and the two combs were not recovered from the luggage bag but the laptop bag. PW2 denied the suggestions put to him and maintained what he had said in examination-in-chief.

(f) The next witness was PW5 who confirmed receiving the items seized from PW2. He said that he made his own markings on the exhibits on receiving them from PW2. The exhibits suspected to be drugs were sealed in a box and sent to the government chemist, Dr Vanitha Kunalan (PW4) for chemical analysis who confirmed that the substance in the luggage bag contained 4206.2 grammes of Methamphetamine which was a dangerous drug as listed in the First Schedule of the Act.” Criminal Appeal No: B-05(M)-61-01/2018 5 [5] The learned JC had considered and accepted the evidence of PW4 on the analysis undertaken by the witness as to the type and weight of the impugned drugs as stated in the charge. Her Ladyship was satisfied that there was no break in the chain of evidence as to the drug exhibits which was produced and identified by the witnesses in Court. [6] As for the element of possession, the learned JC accepted the evidence of PW2 that the appellant had physical custody and control of the luggage bag which contained the impugned drugs and thereby her Ladyship relied on the presumption of possession and knowledge under section 37(d) of the Act. [7] As to the element of trafficking the learned JC relied on the statutory presumption under section 37(da) of the Act based on the weight of the Methamphetamine involved which is more than the minimum weight of 50 grammes required to trigger the presumption of trafficking. [8] After being satisfied that all the elements of the charge had been established by the prosecution, the learned JC found that the prosecution had proven a prima facie case against the appellant. Thus, the appellant was ordered to enter his defence on the amended charge as preferred. This finding can be found at paragraph 31 of the grounds of judgment: “31. For these reasons, at the close of the prosecution’s case, I was satisfied, upon a maximum evaluation of the evidence adduced by the prosecution’s witnesses that the prosecution had made out a prima facie case against the accused in respect of the charge which, if unrebutted, would warrant his conviction. As such, the accused was called upon to enter his defence.” Criminal Appeal No: B-05(M)-61-01/2018 6 Defence case [9] The appellant elected to give evidence under oath. The appellant was the sole witness for the defence. In essence, the appellant deny any knowledge of the impugned drugs and he shifted the blame on one Innesen for the presence of drugs in the luggage bag P25. The learned JC had summarized the appellant’s evidence at paragraphs 32 – 41 of the grounds of judgment as follows: “32. The accused gave evidence in his own defence. The gist of his evidence was that he had no knowledge there were drugs in the luggage bag.

I shall now refer to his evidence in detail. He was working as a mechanic in a workshop in Pretoria, South Africa earning a sum of 15,000 Rands per month, which was equivalent to RM4,500- RM5,000. He was doing well as a mechanic and painter, earning a good income with which his family was comfortable. He had a customer by the name of Innesen whom he knew for about 3 years. Innesen was a car salesman in Pretoria. Innesen often gave him cars for painting and during the course of work they became good friends and he had made a lot of money from his customers who liked the work done by the accused.

On 3 September 2014, Innesen met him at his workshop and asked if he would like to go to Malaysia for a holiday and offered to pay for the trip. He also said that he would arrange for a hotel for the accused to stay and for his relative to take him around to show him the country. He accepted the offer and Innesen purchased the flight ticket for him. Criminal Appeal No: B-05(M)-61-01/2018 7

According to the accused, Innesen picked him up from his house on 9 September 2014. He told the accused not to bring too many clothes as there were good clothes to buy in Malaysia as well as other things. The accused brought a small hand luggage bag and a laptop bag in which he carried his personal items such as comb, toothbrush, towel, etc. Innesen checked him into Sun1 Hotel at Midrand. That night, Innesen took him for dinner and asked him to call him from Kuala Lumpur Airport. He would then provide him with his relatives telephone number and ask them to wait for him at the hotel in Puchong. Innesen also stated that he would be sending some personal gifts for his relatives and the accused was to pass it to them. The accused agreed to do so.

On 10 September 2014, at about 10.30 am, Innesen gave the flight ticket to him to come to Malaysia. The accused carried the luggage bag and laptop bag into Innesen’s car to go to Or Tambo Airport. Innesen dropped the accused near the airport as there was no place to park and told the accused to check-in for his flight and come back to the hotel which was walking distance from the airport. Innesen told the accused to leave his hand luggage bag in his car. The accused checked-in and walked back to the hotel.

At the hotel, he met Innesen and went to take his hand luggage bag from Innesen’s car and found it empty. Innesen told him that as his bag was small, he had purchased a bigger bag for him in case he bought things from Malaysia. Innesen informed him that he had transferred all his clothing into the new bag, with some personal gifts for his relatives in Malaysia. The accused completely trusted Innesen and did not see the need to check the new bag. Innesen gave him USD3,500 and sent him to the airport and told him to buy a SIM card in Malaysia to call him. He would then send him the name and telephone number of his relatives in Malaysia to contact. Criminal Appeal No: B-05(M)-61-01/2018 8

The accused wrapped his luggage bag in plastic and checked it in and carried his laptop as hand luggage. The luggage bag was wrapped as there was a requirement for compulsory wrapping of the luggage at Or Tambo Airport. He then boarded the flight first to Singapore and then to Malaysia, arriving at 8.00 am on 11 September 2014.

On arrival at KLIA, he went to the bathroom and brushed his teeth, taking his toothbrush from the laptop bag and also combed himself. He then claimed his luggage bag and purchased a SIM card and made 3 calls to South Africa. Two calls were to Innesen and one to his wife. Innesen told the accused that the hotel was in Puchong and asked him to take a taxi to Puchong, promising to later SMS his relatives name and telephone number. The accused collected his luggage bag and then purchased a taxi ticket to Puchong and went out of the airport towards the taxi. It was then he was stopped and checked by Inspector Sherman.

Continuing with his testimony, he stated the first time he became aware of the presence of drugs in the luggage bag was when the police recovered it and showed it to him. He stated that he was not the only one who had been victimised by Innesen. Whilst, he was in prison, he met another South African national, one Barrend Jacobus Martineus Nel whose prison no was 31408093, who informed him that he too had been victimised by Innesen.

Under cross examination, the accused’s testimony that he received the luggage bag from Innesen was not challenged, but it was put to him that he knew there were drugs in the luggage bag when he brought it to Malaysia.” [10] Having given careful consideration of the defence case, the learned JC found that the crux of the defence of the appellant was that he was an Criminal Appeal No: B-05(M)-61-01/2018 9 innocent carrier without knowledge of the impugned drugs. The learned JC however found that the appellant was guilty of wilful blindness and relied on the Federal Court case of PP v. Herlina Purnama Sari [2017] 1 MLRA 499 and the decision of this Court in Ali Hosseinzadeh Bashir v. PP [2015] 1 CLJ 918, and the case of Francis Okezie Onyeoziri v. PP [2017] MLJU 57 to support her finding. [11] In the final analysis, the learned JC found that the appellant failed to raise any reasonable doubt in the prosecution’s case and that the prosecution had proven its case beyond all reasonable doubt. It was her Ladyship’s finding that the appellant failed to rebut the statutory presumptions under section 37(d) and section 37(da) of the Act. At paragraph 52 of her grounds, the learned JC said: “52. For these reasons, I found that the evidence of the accused failed to rebut the statutory presumptions of possession and trafficking under sections 37(d) and 37(da) of the Act nor cast a reasonable doubt as to the truth of the prosecution’s case. The prosecution had succeeded in proving the charge of trafficking beyond reasonable doubt against the accused. The accused was thus found guilty of trafficking in 4206.2 grammes of methamphetamine and convicted accordingly.” The appeal [12] In the appeal before us, the appellant raised only one ground of appeal, which is the invocation of the double presumptions under section 37(d) and 37(da) of the Act. It was argued that the learned JC did not make any finding of fact that the appellant was found in possession of the impugned drugs. The appellant was found to have custody and control of Criminal Appeal No: B-05(M)-61-01/2018 10 the drugs and the learned JC invoked both the presumptions. In support of his argument, learned counsel relied on the recent Federal Court decision in Alma Nudo Atenza v. PP & Another Appeal [2019] 5 CLJ 780. Our deliberation and decision [13] The learned Deputy Public Prosecutor (‘learned DPP’) informed us that the learned JC had invoked the double presumptions and that this Court is bound by the decision of the Federal Court in Alma Nudo Atenza’s case (supra). Learned DPP further informed us that they agreed that the conviction against the appellant under section 39B(1)(a) of the Act was not safe and should be set aside and substituted with a conviction for possession under section 12(2) punishable under section 39A(2) of the Act. [14] In the cited case, the Federal Court made the following observation: “116. Meanwhile, when enacting section 37A Parliament did not find it necessary to amend the wordings of subsection 37(da) in particular the word ‘found’ therein. As such the view given by this Court on the word ‘found’ in Muhammed bin Hassan (supra) is still valid.” [15] At paragraph 127 (iii), the Honourable Court held: “(iii) A statutory presumption in a criminal law, which places upon an accused the burden of disproving a presumed fact, must satisfy the test of proportionality under Article 8(1). The substance and effect of the presumption must be reasonable and not greater than necessary.” [16] At paragraph 135, it was held that: Criminal Appeal No: B-05(M)-61-01/2018 11 “135. As for the presumption under subsection 37(da), a person “found” (which denotes the need first for an affirmative finding based on the evidence adduced) to be in possession of drugs exceeding a stipulated weight has a logical bearing on the inference of trafficking.” [17] At paragraph 141, the Honourable Court held: “141. Hence, for the above reasons we are of the view that section 37A prima facie violates the presumption of innocence since it permits an accused to be convicted while a reasonable doubt may exist.” [18] And finally, at paragraph 150 and 151, the apex Court held: “150. Based on the factors above – the essential ingredients of the offence, the imposition of a legal burden, the standard of proof required in rebuttal, and the cumulative effect of the two presumptions – we consider that section 37A constitutes a most substantial departure from the general rule, which cannot be justified and disproportionate to the legislative objective it serves. It is far from clear that the objective cannot be achieved through other means less damaging to the accused’s fundamental right under Article 5. In light of the seriousness of the offence and the punishment it entails, we find that the unacceptably severe incursion into the right of the accused under Article 5(1) is disproportionate to the aim of curbing crime, hence fails to satisfy the requirement of proportionality housed under Article 8(1).

Accordingly, we hold that section 37A is unconstitutional for violating Article 5(1) read with Article 8(1) of the FC. The impugned section is hereby struck down.” [19] It was for the above said reasons that we allowed the appellant’s appeal in part. The conviction of the High Court was not safe and we set it aside. We substituted it with an order that the appellant be convicted under Criminal Appeal No: B-05(M)-61-01/2018 12 section 12(2) for possession simpliciter and punishable under section 39A(2) of the Act. After hearing parties, we imposed 18 years imprisonment from the date of arrest and with whipping of 10 strokes of rattan on the appellant. Dated: 2nd October 2019 signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Counsel For the Appellant: Gurbachan Singh Messrs Bachan & Kartar Wisma Pannu No. 10, Medan Istana 1 Bandar Ipoh Raya 30000 Ipoh Perak For the Respondent: Tengku Intan Suraya Deputy Public Prosecutor Attorney General’s Chambers Putrajaya