Kabunda Sakaji Eddy v Public Prosecutor (B-05(M)-289 & 290-07/2017)

(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B (2) akta yang sama. 2nd Charge Bahawa kamu pada 19/2/2014 jam lebih kurang 8.30 pagi hingga 3.30 petang di Zon Kuning, Jabatan Kecemasan, Hospital Serdang, dalam Daerah Sepang, di dalam Negeri Selangor, telah mengedar dadah berbahaya sejumlah berat 214.7 gram Methamphetamine dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 39B

(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B (2) akta yang sama. [2] At the conclusion of the trial, the learned Judicial Commissioner of the High Court (‘the learned JC’) found the appellant guilty and convicted him on both the charges. The appellant was thus sentenced to the mandatory death penalty as mandated under section 39B(2) of the Act. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 3 [3] Aggrieved with the convictions and sentences, the appellant appealed to this Court. We heard the appeal on 13.11.2018, wherein at its conclusion, we unanimously dismissed it. We now give the reasons for our dismissal. The prosecution’s case in brief [4] On 18.2.2014, the appellant arrived at the Kuala Lumpur International Airport (KLIA) from China. He was stopped at the Immigration Counter as he did not possess a valid visa to enter Malaysia. The appellant was then taken to the Temporary Holding Cell at the airport while waiting to be deported back to China. [5] At about 2.00 pm that afternoon, a Customs Officer, Mohamad Hafiz Bin Mohd Rosli (PW1) heard a cry from inside the Temporary Holding Cell. PW1 proceeded to investigate and saw the appellant seated on the floor near the cell door, crying and pointing to a pile of purple objects on the floor. According to PW1, it looked like a pile of grapes. [6] PW1 promptly informed his superior, Puan Hamidah Binti Ibrahim (DW2), who happened to be in the vicinity of the holding cell to have a look at the purple objects. Suspecting that they were drugs, she immediately proceeded to the Narcotics Office at the airport to inform the officer in charge. [7] In the meantime, PW1 left the appellant alone in the cell for about five minutes to hand over a file to the Operations Office. When he returned, he noticed that the purple objects had been moved and placed just outside the cell. The appellant was standing at the cell door. The other detainees in Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 4 the same cell were all some distance away from the appellant, who was the only man of African origin in the cell. [8] Shortly after, Puan Hamidah Binti Ibrahim brought Det/Sargeant Major Ngasiman Bin Kadar (PW2) and other police personnel to the holding cell. PW2 saw two piles of purple objects outside the cell door and the appellant was holding the cell door. PW2 examined the purple objects and found in each pile, a total of 17 and 19 capsules respectively. PW2 seized and placed the capsules into two bags (P22A and P22C). PW2 further seized a black bag containing the appellant’s personal belongings and a laptop. The appellant’s passport was handed to PW2 by Puan Hamidah. [9] PW2 took all the items seized and the appellant to his office where he prepared a search list and served a copy of it to the appellant. PW2 then lodged a police report (P1). PW2 weighed the capsules and the gross weight was 500 grammes. He then marked all the capsules in P22A and P22C by recording the date and placing his signature on each of them. Later on the same day, PW2 handed the appellant and the exhibits to the Investigating Officer, Inspector Amrin Bin Mohamad (PW6). [10] On the instruction of PW6, the appellant was taken to the Serdang Hospital and was detained at a ward for an x-ray examination of his abdomen. The x-ray examination was done and the result thereof showed the presence of foreign objects in the appellant’s intestine. Det/Corporal Razaini Bin Abdul Razak (PW3) and Det/Corporal Zahid Bin Zakaria (PW4) were then instructed to wait and watch over the appellant till he excreted the foreign objects. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 5 [11] On 19.2.2014 between 8.30 am and 3.30 pm, the appellant excreted a total of 29 capsules. All the capsules were marked and photographed by PW3 and PW4. All the capsules were later handed over to PW6 who in turn made his own markings on all the capsules handed to him by PW3 and PW4. [12] On 21.2.2014, PW6 sent all the capsules to the chemist, Puan Norhaya Binti Jaafar (PW5) for analysis. After her analysis, PW5 confirmed that the substance inside the capsules recovered from both the holding cell of KLIA and at Serdang Hospital was Methamphetamine with a combined weight of 266 grammes and 214.7 grammes respectively. They were the subject matter of the two charges in the instant appeal before us. PW5 also confirmed that Methamphetamine is listed under the First Schedule of the Act. The PW5’s Chemist Report was tendered and marked as P16, which can be found at pp. 44-45, Appeal Record, Volume 3(1). [13] It was not disputed that the appellant flew into KLIA from Shenzhen, China on an Air Asia flight AK 1089 on 16.2.2014. [14] The appellant gave a cautioned statement to the police 5 days after his arrest and was tendered as evidence (D27). In D27, the appellant put forth his detailed defence. Essentially, the appellant deny any knowledge that the capsules he had swallowed contained drugs. At the end of the prosecution’s case [15] The learned JC had considered and accepted the evidence of PW5 on the analysis of the substance contained in the capsules. Through the testimony of PW5, it was proven that the capsules contained Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 6 Methamphetamine, a dangerous drugs listed in the First Schedule under the Act. The testimony of PW5 and her report P16 were never disputed. [16] As for the element of possession, the learned JC accepted the evidence of witnesses PW1, PW2, PW3, PW4 and PW6 which proved the fact that the appellant had excreted the capsules at the holding cell and at the ward at Serdang Hospital. The learned JC held that the appellant had mens rea possession of the impugned drugs. [17] As to the element of trafficking, the learned JC invoked the statutory presumption under section 37(da)(xvi) of the Act based on the weight of the drugs involved in both charges. The appellant was thus presumed to have the impugned drugs in his possession for the purposes of trafficking unless he proved otherwise. [18] After being satisfied that all the elements of the charges had been proven, the learned JC found that the prosecution had established a prima facie case against the appellant. Thus, the appellant was called upon to enter his defence on both charges. Based on the evidence on record, we are of the view that the learned JC was correct in calling the appellant to enter upon his defence on both the charges as preferred. The defence [19] The appellant elected to give evidence under oath. The appellant also called Puan Hamidah Binti Ibrahim (DW2) to testify on behalf of the defence case. The appellant denied the prosecution’s version that he had knowledge of the impugned drugs in the capsules swallowed by him. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 7 [20] The appellant said that he hailed from Democratic Republic of Congo and travelled to Tanzania to look for work because of financial problems. He stayed with a family friend called ‘Alain’ in Tanzania. Alain had introduced him to a lady called ‘Shakira’ who offered him a job and told him that he could earn USD5,000. ‘Shakira’ told him that he would be sent to Shenzhen, China to meet someone known as ‘Boss’, who had an assignment for him to travel to Indonesia. ‘Shakira’ arranged for his passport, visas and flight ticket to travel to Shenzhen. [21] The appellant further testified that when he arrived in Shenzhen, he met ‘Boss’ and was asked to stay in Shenzhen for a few days. ‘Boss’ told him that he was to travel to Malaysia instead of Indonesia and assured him that no visa was required for him to enter Malaysia as he was from Congo. [22] One day before his flight to Malaysia, he was taken to meet ‘Boss’ and ‘Boss’ told him that he was to bring something to Malaysia. ‘Boss’ showed him a bag that contained capsules and asked him to swallow the capsules. He did not inquire what was in the capsules. The appellant said he consented and swallowed the capsules because his family in Congo needed the monies. He was unsure how many capsules he had swallowed. [23] On 16.1.2014, he departed from Shenzhen and arrived in Malaysia the next day. He was, however, denied entry into Malaysia at the Immigration check point as he did not have a visa, and he was taken to the Immigration Holding Cell. [24] The appellant admitted that he had excreted the capsules while under detention at the holding cell and as well at the ward at Serdang Hospital. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 8 However, the appellant maintained that he had no knowledge that the capsules he had swallowed contained dangerous drugs. He had given his version of the events to the police in the statement recorded by the police 5 days after his arrest (D27). [25] SD2 testified that citizen of the Democratic Republic of Congo required a visa to enter Malaysia. SD2 confirmed that the appellant did not have a valid visa, and was barred from entering Malaysia upon his arrival from Shenzhen. SD2 confirmed that the appellant’s passport was not chopped with the entry permit. The appellant was detained at the holding cell pending deportation. [26] After considering the appellant’s defence, the learned JC found that the appellant had not succeeded in raising a reasonable doubt on the prosecution’s case. The learned JC also found that the appellant had failed to rebut the statutory presumption of trafficking under section 37(da)(xvi) of the Act on a balance of probabilities. The learned JC was satisfied that the prosecution had proved beyond reasonable doubt the case of trafficking against the appellant as per the charges. [27] The learned JC’s analysis of the defence evidence are at pages 26- 32, Appeal Record, Volume 1, as follows: “33. In my judgment, the defence of the accused was in all respects, unmeritorious. I disbelieved his evidence that he did know what was in the capsules when he swallowed the same. This was a common defence relied on by drug couriers and pose real difficulties for the police and prosecuting authorities. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 9

Equally, I disbelieved his evidence that he swallowed the capsules without asking Boss what was in the capsules. His story was simply incredible. Boss was someone he had just met and had no reason to blindly trust him to the extent he was willing to swallow capsules without even knowing what was in the capsules.

It was telling that the accused made no mention in his evidence as to what he thought was in the capsules and why he did not ask Boss about the contents, and the need to swallow them. His lack of interest and compulsion to ascertain the contents of the capsules demonstrated that he knew it contained drugs and accepted the assignment fully aware of the consequences if he was apprehended. I found his story that he did not know there were drugs in the capsules implausible and a complete fabrication.

In any event, the accused must have suspected that something was amiss when Boss told him to swallow the capsules. It must have surely crossed his mind that there could be drugs in the capsules and that he was being asked to be a drug courier. He chose, however, not to inquire about the contents though he was not threatened or coerced by Boss to swallow the capsules. He wilfully shut his eyes and made no inquiries, though he had opportunity to do so, as to what was in the capsules and why Boss wanted him to swallow the same. It is trite that there is a principle of law that when a man deliberately shuts his eyes to the obvious, because he does not want to know, he is taken to know.

This is illustrated by the judgment of the Court of Appeal in Emeka John Paul v Public Prosecutor [2016] 3 MLJ 757. There, dangerous drugs were recovered, as in the instant case, from the stomach of the appellant. The appellant claimed that he had no knowledge of the drugs in the capsules discharged from his stomach and he had swallowed the capsules as instructed by one Oneka thinking they contained silver. In Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 10 dismissing his appeal against his conviction and sentence, Prasad Abraham JCA explained: [20] In this regard, we refer to the decision of this court and to the judgment of His Lordship Zamani A Rahim J in the case of Abuchi Johnson v Public Prosecutor [2015] 1 LNS 1225 and we quote: The Appeal [14] The sole issue advanced by the appellant was that he had no knowledge of the drugs in the capsules discharged from his abdomen. He was forced by Obi to ‘eat’ (swallow) the capsules before he boarded the flight at Lagos airport. He was told by Obi that the capsules which resembled the African food was necessary for him to ‘eat’ (swallow) to overcome the problems of cold weather and long distance travelling. [15] Learned counsel contended that the appellant’s cooperative conduct at the time of his arrest the KLIA showed that he did not know he had swallowed the capsules containing the drugs. [16] The appellant’s defence of no knowledge of the drugs was supported by his cautioned statement, D28 which the defence claim to have been given at the earliest reasonable opportunity. Our Decision [17] Having heard the appeal, we found no merit on the ground raised by the appellant. We therefore unanimously dismissed the appeal and confirmed the conviction and the death sentence imposed by the High Court. We now give our reasons. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 11 [18] Learned counsel argued that it was not disputed that the appellant had sixty six (66) capsules in his abdomen. However the defence submitted that the appellant did not know he had swallowed the drugs in the capsules. Had he knew the capsules contained the drugs; he would not have swallowed them. [19] Having scrutinised the appellant’s story, the trial judge found there were many gaps and questions which remained unanswered. The trial judge found the appellant’s story was fraught with unreasonableness and illogicality, namely:

Why would Obi who paid the accused to have his laptop repaired by the Accused was so ‘indebted’ to the accused that he was willing to pay for the air ticket, gave USD 3,000 for expenses and obtained visa for the accused to come to Malaysia;

The accused said that his life and security were not threatened as Obi only held his jaw to open his mouth for him to swallow the capsules. So the accused had all the opportunity to escape or run away but he did not do so; and

The accused said he did not know what he swallowed. Yes this defence is not an afterthought as it was mentioned in his statement to police (d28), but he had all the opportunity to find out as he was not threatened. If he did not do so, its ‘wilful blindness’ on his part and he himself to blame. In the Singapore Court of Appeal case of Ubaka v Public Prosecutor [1951] 1 SLR 267 at p 273, Kartigesu JA said: Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 12 In the light of these findings, the learned judge had to decide whether the appellant had successfully rebutted the presumptions of knowledge of the presence of the drugs and their nature. He applied the principles laid down in Warner v Metropolitan Police Commissioner as modified by Tan Ah Tee & Anor v Public Prosecutor and which were reiterated in the recent decision of this court in the case of Lim Swee Thong v Public Prosecutor. The learned judge concluded that: Ignorance is a defence when there is no reason for suspicion and no right opportunity of examination, and ignorance simpliciter is not enough. Even if I had accepted what the accused said (which I did not), he was no an innocent custodian. He should have been wary about Mike Udo by the time he was asked to carry the bags and he should check (sic) the bags before taking them with him. The learned judge accordingly found the appellant had not rebutted the statutory presumption on a balance of probabilities, and convicted him. On appeal, the same arguments that were canvassed before the learned judge were canvassed before us. Just as the learned judge found no merit in them, we too did not find any merit in the appellant’s contentions and accordingly we dismissed the appeal and confirmed the sentence of death passed by the learned trial judge on the appellant. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 13 On examining the evidence of the accused, it is not denied or disputed that he had the drugs in his abdomen and discharged them in Malaysia. With many questions/gaps unanswered, the story of the accused is surely ‘highly improbable’ (Public Prosecutor v Abdul Rahman Aktif [2007]). Therefore, it cannot rebut the presumption of knowledge and cast a reasonable doubt in the prosecution case. Further on the defence of wilful blindness, the accused had all the opportunity to refuse as his life or security was not threatened and he had only himself to blame. He ‘should have been wary’ when asked to swallow the capsule which he said resembled some African food. This too cannot rebut the presumption of knowledge on the balance of probabilities. [20] With several questions and gaps remained unexplained, the appellant’s version of the story had failed to cast any reasonable doubt on the prosecution’s case. In Public Prosecutor v Abdul Rahman bin Akif [2007] 5 MLJ 1; [2007] 4 CLJ 337, Arifin Zakaria FCJ (as he then was) said at p 353: [27] It is trite law that the court need not be convinced of the defence story to entitle the accused to an acquittal. The burden of proof on the accused is indeed a light one which is merely to cast a reasonable doubt on the prosecution’s case. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 14 [21] His Lordship at p 354 of the judgment said that the accused story was highly improbable and affirmed the conviction imposed by the High Court. [21] The version of the appellant in that he did not appreciate what he was swallowing were drugs makes it now difficult one for us to ‘swallow’. Would a person swallow these pills and take a long journey to Malaysia? Even so, what was more bewildering, what was the need for him to swallow ‘silver’? Indeed, the intention to conceal was present. The act and now the consequence in which the appellant has found himself is certainly was a bitter pill to swallow on hindsight.

For these reasons I found the accused had failed to rebut on a balance of probabilities the statutory presumption of trafficking under section 37(da) of the Act. I also found that the accused had not raised any reasonable doubt in my mind as to his guilt. I was satisfied that the prosecution had proved beyond reasonable doubt the case of trafficking against the accused as charged.” [28] The appellant was thus convicted and sentenced to suffer the mandatory death penalty as mandated under section 39B(2) of the Act on both charges. Hence, the appeal before us. The Appeal [29] Before us, learned counsel for the appellant posited one solitary ground for us to allow the appellant’s appeal, that is, the failure of the learned JC to adequately appreciate the defence of the appellant. Learned counsel argued that the appellant defence was that he had no knowledge that the capsules contained drugs. Learned counsel argued that learned Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 15 JC had failed to consider that the appellant was detained in the holding cell without entering the Malaysian territory. That being the case, the appellant cannot be said to be trafficking in dangerous drugs under the Act. Our Decision [30] The crux of the appellant’s defence was that he was an innocent carrier without knowledge of the impugned drugs. At pages 32-33, Appeal Record, Volume 2, the appellant said this: “Boss” never told me what inside the capsules, although I did ask him about that. I did not know what were the contents of the capsules. I did not know there were drugs inside the capsules …. When the police asked me if I knew the content of the capsules that I swallowed is drug, I said I don’t know. I really do not know that the capsules that I swallow were drugs.” [31] We are mindful that the appellant gave the evidence in court during the trial on 29.5.2017, more than 3 years after his arrest. We noticed that in his cautioned statement (D27) given to the police 5 days after his arrest, the appellant did not at all mention that he had asked “Boss” what was inside the capsules. What he said in D27 was this: “The last night before I come to Malaysia, Boss come and pick me up in the hotel. He took me to his place that didn’t know. In one room, Boss tell me the job is to bring something to Malaysia. I ask him that I didn’t have any visa to enter Malaysia and I just have Indonesia visa that Shakira put into my passport. Boss explain to me that if a Congo citizen no need a visa to enter Malaysia. After that, I agree and Boss open (1) bag and show me the thing that I should bring to Malaysia. I see big capsule inside the bag that he open. He ask me to eat that capsule and I tell him that I Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 16 can’t eat that all. I tell him that I just can eat 70 capsule. He calculate and tell me that if I eat 70 capsule, he just can give USD$3500.00. He offer me to eat 90 capsule and I can get USD 4500.00. Because of my family suffer in Congo, I agree and accept it. I then swallow but I didn’t count how much I swallow. After I swallow the capsule, Boss tell me that I should not eat or drink anything until I reach one person in Malaysia. He give a contact number and write it on my contact book. Boss didn’t mention the person name but ask me to contact that number after I reach Malaysia. Boss then contact a taxi to bring me to the airport. Before I leave Boss, he give a money USD$1000.00. He said that if I reach Malaysia, change some money for my expand in Malaysia. The balance money that he promise will be give after I reach Malaysia.” [32] This prompted the learned JC to disbelieve the appellant’s evidence that he had no knowledge of the impugned drugs. The conduct of the appellant in swallowing the capsules without much asking because he was hard up for monies as in his evidence made him guilty of wilful blindness as found by the learned JC. We agreed with the analysis of the learned JC and her findings that the appellant was guilty of wilful blindness. We disagreed with the learned counsel’s complaint that the learned JC had failed to evaluate the appellant’s defence adequately. We find no basis of the learned counsel’s complaint. [33] On the issue that the appellant was denied entry into Malaysia and the appellant was arrested in the holding cell, learned counsel argued that the appellant was on ‘no man’s land’. Therefore, learned counsel argued that the appellant cannot be guilty and convicted of trafficking the dangerous drugs. At most, learned counsel argued that the appellant was only guilty under section 21(6) of the Act for bringing dangerous drug into Malaysia in transit. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 17 [34] We did not agree with the learned counsel’s submission on this issue. The Federal Court dealt with the same issue in Isidiro Leonardo Quito Ruiz v. PP [2013] 2 CLJ 1025, where Abdul Hamid Embong, FCJ said: “[23] In Tellon, the Court of Appeal, in confirming a conviction under s. 21(6) DDA gave the following reasons: As we have earlier observed that the meaning of being ‘in transit’ is for the ‘sole purpose’ of being carried to another country and therefore Malaysia will not be a country where the drug will be distributed and consumed and as such the presumption of trafficking cannot arise (emphasis added). With utmost respect, we are of the view that the distribution and consumption qualification was unsuitably applied in the context of an offence of trafficking under s. 39B DDA. The key-word “traffic” there does not involve the components of “distribution or consumption”. A person who is found to be in control and custody of dangerous drugs is deemed to be in possession if the presumption under s. 37(d) is invoked and to have known the nature of such drug (s. 37(d) DDA). Alternatively once the prosecution has succeeded in proving by direct evidence and thus, on a finding of fact, that a person is in possession of a certain amount of dangerous drugs as listed under s. 37(da), he is in law presumed to be trafficking in that said drug, albeit without any intention for its distribution or consumption. [24] In this case, there was indisputable and direct evidence that the appellant was in possession of the said drugs in question. He even admitted to swallowing them. The learned trial judge made a positive finding that he was in possession of the drugs. We think that the learned judge had no other option in the face of this damaging evidence. At the end of the trial, it was the learned trial judge’s finding that the appellant Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 18 had failed to rebut the statutory presumption under s. 37(da)(ix) now triggered against him, on a balance of probability. [25] Also, by the very definition of trafficking under s. 2 DDA, the appellant had been proven as a fact, to have trafficked in the said drugs by way of importing them into Malaysia. That act alone implies that he had trafficked in the said drugs, regardless of whether he achieved the purpose of that act of importation. Section 2 defines trafficking as follows: ‘trafficking’ includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act of the regulations made under the Act. ………. [28] An offence under s. 39B DDA is proven when the court is satisfied beyond a reasonable doubt that the offender was in possession of dangerous drugs. With proof of care and custody being the pre-requisites, and once this minimal element is proven and the operation of the presumption under s. 37(da) is triggered, the offence of trafficking would be established. [29] Trafficking of drugs may occur anywhere on Malaysian soil, where its criminal jurisdiction extends. It may be committed at an airport, either before or after an immigration checkpoint or on a ship or on board of an aircraft lying within her territory. Malaysia can claim criminal jurisdiction on any offender who commits that offence in any of the said places, it being a crime within her territory. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 19 [30] The appellant in this case was clearly on Malaysian soil. Even if he had not alighted from the aircraft, now parked at KLIA, he would still be in Malaysia and subject to her criminal laws. [31] To accept the defence that the appellant can only be guilty of an offence under s. 21(6) DDA since he was only ‘in transit’ at KLIA would be a ridiculous proposition. It would mean that a foreigner drug trafficker who stood beyond an immigration checkpoint at an airport, prior to official entry being granted to him, is immuned from the offence under s. 39B DDA. But the same crime is committed by a Malaysian found in that same location. Surely, the law is not meant to categorise the offence according to the nationalities of the offenders! The ‘in transit’ plea in this case is to us irrelevant and a mere red herring to answer a charge under s. 39B DDA. This offence, we reiterate is complete once the appellant is on Malaysian soil. The appellant here knew he had to enter Malaysia to take a connecting flight to Phuket. This situation arose in the Singapore case of Ng Kwok Chun & Anor v. PP [1993] 1 SLR 55 where the Court of Appeal opined as follows: The statement of the second appellant was also quite clear. He said that: ‘I merely pass by Singapore and intend to take a flight to Brussels.’ This shows that he was aware that his flight from Phuket would take him to Singapore and from Singapore he would be taking a connecting flight to Brussels, which was his ultimate destination. He knew he was coming to Singapore although he intended to be here only on transit. There was, therefore, the requisite mens rea. He said that he did not know that by coming into Singapore in this manner he would be entering Singapore. That is really immaterial. Accordingly, for the reasons given above, we dismissed the appeals and confirmed the sentences imposed by High Court. Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 20 [32] We hold that the ‘in transit’ defence in the nature as was held in Tellon should no longer be accepted as a valid defence for a charge of trafficking in dangerous drugs under s. 39B DDA. If this defence were accepted then incoming foreigners drug traffickers who stood before or at the immigration checkpoints at KLIA would be immuned from any criminal liability under s. 39B DDA, a situation not envisaged surely, when Part V DDA was promulgated. [33] For these reasons, the appeal is dismissed and the conviction and sentence on the appellant are hereby confirmed.” [35] We are of the considered view that the principle decided by the Federal Court in the above cited case is on all fours with the instant appeal. Thus, it is applicable in the instant appeal. The learned counsel’s argument on this issue is bereft of any merit. Conclusion [36] For all the reasons above stated, we hold that there is no merit in the appeal. The convictions are safe and amply supported by the evidence on record. Therefore, the appellant’s appeal is dismissed and the convictions and sentences of the High Court are hereby affirmed. Dated: 13 December 2018 signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Criminal Appeal Nos: B-05(M)-289 & 290-07/2017 21 Counsel For the Appellant: Saravanan Verran Messrs Edmund, Saravanan & Babu 20-D, Jalan BS 9