Jonas Chihurumnanya v Public Prosecutor (Q-05(M)-104-02/2018)

1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05(M)-104-02/2018 JONAS CHIHURUMNANYA … APPELLANT (A03462568) (NIGERIAN) … RESPONDENT ( In the High Court in Sabah and Sarawak at Kuching Criminal Trial No: KCH-45A-9/8-2016 … COMPLAINANT JONAS CHIHURUMNANYA … ACCUSED) 2 JOINTLY TRIED WITH CRMINIAL TRIAL NO: KCH-83D-706/7-2016 … COMPLAINANT AGUZIE IFESINACHI BOBBY … ACCUSED CORAM ZALEHA BINTI YUSOF, JCA RHODZARIAH BINTI BUJANG, JCA HANIPAH BINTI FARIKULLAH, JCA JUDGMENT [1] The appellant was charged and tried at the High Court at Kuching on the following charge: 3 “That you on the 7th June 2016 at about 12.05 am, at the car park of Mc. Donald Restaurant Tabuan Jaya, Lot 16843, Blok 11, MTLD Canna Road, Kuching in the district of Kuching, in the State of Sarawak, did traffic in dangerous drugs to wit, 158.30 grams methamphetamine and thereby you committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under section 39B(2) of the same Act”. [2] The appellant was convicted and sentenced to death by the said court, hence his appeal before us against the conviction and sentence. [3] We had heard the appeal and after giving due consideration of all issues raised before us, we unanimously dismissed the appeal on the reasons given below. The accused [4] The appellant was jointly tried with another person by the name of Oguzie Ifesinachi Bobby (the 2nd accused). However the 2nd accused had absconded before the learned trial judge made his ruling at prima facie stage. Brief Facts [5] The appellant was arrested by the Police Narcotics Team led by PW8 acting on information of dangerous drugs activities; while he was refuelling his Kancil car bearing registration number QB8399, at Shell Petrol Station, Jalan Canna Kuching. When the police arrested him, the 4 appellant was shocked and straight away informed the police that his friend was at the parking space at the back of McDonald’s restaurant which was adjacent to the petrol station, about 10 to 15 metres away. [6] The police team immediately took the appellant in his Kancil car to the parking space at the back of McDonald’s restaurant with PW8 driving the said Kancil and the appellant sitting at the back seat in between 2 other police officers. [7] At the said parking space, they saw the 2nd accused who was in the midst of opening the door of his Proton Wira car. The 2nd accused was also then arrested. A body search was conducted on each the appellant and the 2nd accused, but nothing incriminating was found. [8] However drugs were found in both Kancil and Proton Wira cars, upon inspection, in the presence of the appellant’s and the 2nd accused’s, presence. In the Kancil, the police found in its boot, one blue plastic bag containing one diaper brand TENA. Inside the diaper was one transparent plastic packet containing two brown cellotaped wrappings. Further inside each of the brown cellotaped wrapping was an aluminium foil wrapping which contained transparent plastic containing crystallize substances suspected to be the drug syabu. [9] From the Proton Wira car, two transparent plastic packets containing crystalline substances suspected to be the drug syabu were discovered from underneath the floor mat of the front passenger seat. 5 [10] The crystalline substance found from the Kancil had a gross weight of 220 gm whilst the one found in the Proton Wira had a gross weight of 31.30 gm. Upon analysis by the Chemistry Department, the crystalline substance seized from the Kancil was confirmed as 158.30 grams of methamphetamine and those seized from the Proton Wira was 23.94 grams of methamphetamine. Issues [11] Based on the Petition of Appeal filed and submissions before us, the issues can be summarized as follows:

(ii) The trial judge erred when he failed to consider the fact that the said Kancil had been used by the 2nd accused to get his clothes from the laundry earlier before the arrest;

(iii) The trial judge erred when he failed to consider that no CCTV recording was obtained from the petrol station;

(iv) The trial judge erred when he failed to consider whether the arrest was illegally conducted. 6 Our decisions [12] On the 1st issue on the prima facie case, the learned trial judge in his GOJ had stated inter-alia, as follows: “[12] it was clear that the Kancil belonged to the 1st Accused’s brother in law (PW2). However, his father-in-law (PW3) was the one who took care of the said car. According to PW3, no one else other than his daughter (PW1), the 1st Accused and he had used the said Kancil. PW1, who was the 1st Accused’s wife would use the Kancil whenever she and the 1st Accused were in Sarawak. [13] It was PW3’s evidence that the 1st Accused and PW1 were back in Sarawak sometime in end of May 2016 for Gawai celebration. Both the 1st Accused and PW1 were using the Kancil. It was in evidence that the 1st Accused was driving it in the evening of 6 June 2016. PW1 was not with him as she was in PW3’s home in Bau. [14] Despite the defence’s contention, this court, found that only the 1st Accused was the one using the Kancil between 6 and 7 June 2016. There was no evidence that the Kancil was broken into. There was also no evidence that there were other persons travelling with him in the said Kancil. There was, however, evidence that only the 1st Accused has access to the Kancil, he having possession of the key to the car. [16] Having considered submissions of the learned Deputy Public Prosecutor and the learned counsel for both accused persons in the light of the evidence adduced by the prosecution, this court found that the 1st Accused person had custody and control of the dangerous drugs to wit, 7

158.30 grammes of methamphetamine when it was found in the boot of the car Perodua Kancil bearing registration No: QB8399. [17] Learned counsel for the 1st Accused may have submitted that the dangerous drugs were not concealed, but this court was of the opinion that, although the statutory presumption under section 37(d) of the Dangerous Drugs Act 1952 could not operate against the 1st Accused person in this case, there was overwhelming evidence that the 1st Accused person knew all along about the said dangerous drugs found in the car in the said car Perodua Kancil bearing registration QB8399. [18] It must be borne in mind that the dangerous drugs were wrapped in several layers of wrappings and that they were concealed in a diaper brand TENA. It was clear that the 1st Accused and PW1 had no children who would require diapers. There was also nothing to suggest that any of PW1’s family members were using diapers. [13] We found no reason to disturb the learned trial judge’s finding above. Evidence clearly showed that the said Kancil was in the possession and control of the appellant between the 6th and 7th of June 2016, before his arrest. When he was arrested, he was the only person in the car and the drug was found in the boot of the car albeit securely wrapped. But that i.e. the fact that the drug was found in the boot and securely wrapped did not, in our view, assist the appellant in denying knowledge of the drug. There was nothing to support that his family members were using diapers. In P.P. v Hia Win [1995] 2 SLR 424, Yong Pun How CJ had stated the following: 8 “In the end, the finding of the mental state knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses.” [14] There was no plausible explanation offered by the appellant except that “I don’t know” when the drugs was found. He was the only person having the custody and control of the car then. We therefore found the learned trial judge did not err in his finding of prima facie case. See: P.P. v Abdul Rahman Akif [2007] 4 CLJ 337, Federal Court. [15] We were also of the view that the learned trial judge was also correct to have found that the drugs found was for the purpose of trafficking based on its weight. [16] On the 2nd issue that the learned trial judge had failed to consider that the 2nd accused had borrowed the Kancil earlier to collect his laundry, we agreed with the learned DPP that this was a mere denial and an afterthought. There was no evidence that the appellant had informed the police of this purported fact when or after he was arrested. This was only raised during his defence and was not even suggested to any of the prosecution witnesses during the prosecution’s case. [17] We also found learned counsel for the appellant’s oral argument that the finding of the diaper could have been a proof that the 2nd accused was using the car as the 2nd accused and PW5 had a child out of wedlock, did not hold water. It is well known that TENA brand diaper is an adult diaper and not a child diaper. 9 [18] We therefore found there was also no merit on the 2nd issue. [19] On the 3rd issue, we found as there was enough evidence to prove the trafficking charge against the appellant, the non-production of the CCTV recordings is mere additional or corroborative evidence. It is not a necessity, considering the evidence as a whole. See this Court’s decision in Dilbar Nazarova v P.P. and Another Appeal [2015] 1 LNS 926. [20] On the last issue, we again agreed with the prosecution that although the search of Kancil was not done at the petrol station but at the parking area behind the Mc Donald’s, nothing in the evidence show that there was any break of linkage in between. The appellant was there and the search was conducted in front of him. We therefore could not comprehend how it was said to be illegally conducted. Based on the evidence, we found no illegality involved here. [21] In his oral submission, learned counsel for the appellant had also touched on double presumption, as in the learned trial judge’s GOJ, the learned trial judge had in paragraph 20 stated the following: “[20] In view of the weight of the dangerous drugs found in his possession, statutory presumption under section 37(d)(da)(xvi) of the DDA 1952 would operate against the 1st accused …..” (emphasis added). 10 [22] With due respect to learned counsel for the appellant, we agree with the learned DPP that the mention of section 37(d)(da)(xvi) in the GOJ was actually a typo error as there is no such provision i.e. section 39(d)(da)(xvi) exists. But there exists provision of section 37(da)(xvi). Hence the argument in double presumption herein, in our view, had no merit at all. [23] We were of the view those issues as discussed above were sufficient to prove the appellant’s guilt without having to go through the issue of no finger print evidence to connect the appellant. As explained earlier there were sufficient evidence to prove custody, possession and knowledge and the defence had failed to raise any reasonable doubt but only a mere denial. Conclusion [24] We were satisfied that there was no appealable error on the part of the learned trial judge that warranted our appellate intervention. We viewed the conviction of the appellant was safe. We therefore dismissed this appeal and affirmed the order of the High Court. sgd Dated: 30 Jun 2020 ( ZALEHA BINTI YUSOF ) Judge Court of Appeal 11 Advocates for the Appellant WIT & CO. ADVOCATES Lot 6678, No. 13, 1st Floor, Bangunan Dirgahayu, Jalan Batu Lintang 93200 Kuching Sarawak Assigned Counsel for the Respondent Deputy Public Prosecutor Jabatan Peguam Negara Tingkat 8, Bangunan Sultan Iskandar Jalan Simpang Tiga 93300 Kuching Sarawak