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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CRIMINAL JURISDICTION) CRIMINAL APPEAL NO. S-05(M)-306-07/2017 BETWEEN KHO KANG YAU … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the matter of the High Court in Sabah and Sarawak at Kota Kinabalu Criminal Trial No. BKI-45A-12/9-2015 Between Public Prosecutor v Kho Kang Yau] CORAM VERNON ONG LAM KIAT, JCA ABDUL RAHMAN SEBLI, JCA STEPHEN CHUNG HIAN GUAN, JCA JUDGMENT OF THE COURT [1] In the High Court at Kota Kinabalu, the appellant was charged with drug trafficking and the charge against him was as follows: “That you, on the 06th day of March, 2015 at about 11:15 AM, at the Arrival Hall, Kota Kinabalu International Airport, Terminal 2, in the district of Kota Kinabalu, in the State of Sabah, did on your own behalf traffic in a dangerous drug to wit 1,402.00 grams of Methamphetamine and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) and punishable under Section 39B(2) of the same Act.” [2] The appellant claimed trial to the charge at the conclusion of which he was found guilty and sentenced to death. This was his appeal against 2 conviction. After hearing arguments by both sides, we dismissed his appeal by a unanimous decision. These are our grounds for dismissing his appeal. [3] The salient facts are as follows. Upon receiving information from an unknown person that there was a suspicious looking male passenger heading towards the toilet of the Kota Kinabalu International Airport (KKIA), Senior Customs Officer M. Zin @ Adin bin Awang (PW4) directed one of his men (PW2) to inspect the situation inside the toilet. The male passenger had just arrived from Kuala Lumpur by Air Asia Flight AK5110. [4] PW2 did as instructed and when he entered the toilet area, it was empty but saw towards the end of the toilet area that the cubical door was fully shut as if there was someone inside. He went to inspect and heard the sound of plastic being torn, water being poured and the toilet being flushed. [5] PW2 knocked the door and the response from inside was “saya sedang buang air besar, saya sakit perut”. A while later, a male person later identified as the appellant came out of the toilet cubicle. He was carrying a black luggage bag (Exhibit P35) and a brown sling bag (Exhibit P36). This part of PW2’s evidence was not challenged at all in cross examination and is therefore deemed to be admitted. In any event, the learned trial judge accepted PW2 as a credible witness when she said: “I find him to be honest in adducing of evidence who was only relating to this court what he had actually saw and heard on that particular day and his version of sequences of events consistent with the rest of the evidence adduced by the prosecution.” 3 [6] PW2 instructed the appellant to have his bags scanned at the scanning machine. Upon scanning, PW2 saw a suspicious image inside the black bag. PW2 asked the appellant to open the bag, which he did. Inside the bag, PW2 saw a few ripped plastic packets containing bits of crystalline substances and two other plastic packets which were still unopened. The appellant kept silent and looked confused (kebingungan) upon the discovery. PW4’s testimony on the other hand was that the appellant looked confused and nervous (cemas). [7] The two plastic packets found in the black bag together with the contents were sent for chemical analysis and was confirmed by the Chemist to contain Methamphetamine weighing 1,402.0 grams, a scheduled drug under the First Schedule to the Dangerous Drugs Act 1952 (“the DDA”). Possession of 50 grammes or more in weight of this type of drug triggers the presumption of trafficking under section 37(da) of the Dangerous Drugs Act 1952. [8] Whether or not the appellant was in possession of the drug is primarily a question of fact. In this case it was the finding of the learned trial judge that the appellant was in mens rea possession of the drug, i.e. possession with knowledge. This is clear form the following paragraph of her grounds of judgment, which finding was arrived at after considering the totality of the evidence: “[36] Clearly, by necessary implication it is obvious that the Accused had genuine knowledge of the proscribed drugs inside P35.” 4 [9] With “possession” having been proved, the appellant was presumed to be trafficking in the drug as the amount exceeded the minimum prescribed by section 37(da) of the DDA. [10] Even if the presumption did not apply, the large amount of the drug leads to a strong inference that it was for the purpose of trafficking: Ong Ah Chuan v PP [1980] 1 LNS; [1981] 1 MLJ 64. The learned trial judge was therefore correct in finding that a prima facie case of trafficking had been established against the appellant. [11] When called upon to enter his defence, the appellant chose to give sworn evidence. His explanation was as follows. He was an air-conditioner servicing technician working in Puchong, Selangor. On 6.3.2015, he and his friend ‘Ah Tai’ went together on the same flight to Kota Kinabalu for a holiday. He denied that the black bag from where the drug was found belonged to him. According to him it was checked in and taken from the conveyor belt at the KKIA by Ah Tai. [12] He said he received a phone call from Ah Tai asking him to pick up the black bag from the first toilet cubicle. According to him, the reason why Ah Tai left the bag in the toilet cubicle was because he wanted to withdraw money from the ATM machine at the airport. [13] He claimed that while inside the toilet cubicle, he saw white pebble matter on the floor and the black bag appeared to have been tampered with. So he opened the bag to see what was inside the bag. He said he saw a number of plastic packets most of which were torn except for 2 green plastic packets. While he was looking at them, he heard someone 5 banging on the toilet door, but he only came out after he finished answering the clarion call of nature and after flushing the toilet. [14] He said he was then instructed by the customs officer to have the bags scanned at the scanning machine. After the black bag was scanned, the officer asked him to open the bag and to take out the plastic packets inside the bag. He did as instructed. He said he was shocked when told by the customs officer that there was drug inside the two plastic packets. [15] Having heard the appellant’s explanation, the learned judge found his story to be an afterthought and a bare denial. She rejected the appellant’s claim that the bag belonged to Ah Tai. She found that it was the same bag that the appellant checked in at the Kuala Lumpur International Airport 2. We reproduce below the learned judge’s reasoning: “[54] There are two essential evidentiary facts which showed otherwise and by these reasons I find that the Accused defence is an afterthought and a bare denial. [55] Reasons being that firstly, one has only to look at the CCTV recording by way of the print screen shots (P66 [1-14]) at KLIA 2 to give proved that Accused before boarding AK5110 the shots nos. 1,2,3 & 4 shows the Accused at the arrival hall was seen pulling a black bag the likes of P35 [colour, shape and size] walking towards check-in counter. [56] I am mindful to explain that, though the shots do not show the Accused’s face however my attention is focus at the Accused’s black colour jacket clearly displaying a green coloured hoody. Now, my invitation to refer to exhibit P37 [1,2,3 & 4] and these are the pictures which I corresponded to identify the Accused are one and the same person in both exhibits P66 and P37. [57] Followed by P66 picture nos. 5,6,7,8 & 9 where the Accused appeared to be already at the check in counter though I can’t verify whether the bag is already placed on the 6 conveyor belt. I am also mindful that pictures 7,8 & 9 the visibility of the Accused is identifiable by the coloured hoody. Further, pictures 10,11,12,13 & 14 of P66 shows he was at the boarding counter and my invitation to refer in particular pictures 11,13 & 14 the Accused is no longer seen pulling a black bag instead with him strapped against his body is a sling bag only. Looking at those pictures and compared it with P37 I have no doubt that both exhibits show the one and same person that is the Accused in this instant case. [58] Coupled with the abovementioned paragraphs 51,52 & 53 I refer to P37 pictures 5 and 6 showing the computerised code number 0807620184 plastered at P35 further strengthened by the fact that the cut portion of his tag luggage no. 0807620184 which was affixed to his boarding pass [P36C] corresponded. The name Kho Kang Yau (Accused) on the card portion of the said tag luggage. This numbered tag luggage corresponds with the computerised code number affixed to P35 as also shown at P37 picture no. 5 and 6 and the written reply from Air Asia [P68] at page 2 para 2.7.” [16] There was no dispute that the bag containing the drug was in the appellant’s physical possession at all material times but it was submitted by learned counsel for the appellant that the learned trial judge was wrong in finding that the appellant had knowledge of the drug. In other words, mens rea possession was not proved. [17] We found no merit in the submission as the learned trial judge’s finding is supported by the evidence. The principle is trite that an appellate court does not readily interfere with such finding of fact unless the finding is perverse. [18] The bag containing the drug was carried by the appellant at all material times and when the drug was discovered in his presence, he kept quiet and became confused and nervous. There was no protestation that he had no knowledge of the drug despite being told by the customs officer that there was drug inside the bag. He must have realised the gravity of 7 the situation that he was in, yet his conduct was wholly inconsistent with the conduct of an innocent man. [19] The fact that the bag was put in the toilet cubicle by Ah Tai, even if true, does not exonerate the appellant of the offence charged if otherwise he knew about the drug and continued to keep it in his possession. [20] On the evidence before her, and subject to what we shall say later in this judgment, the learned judge was not wrong in finding that the case against the appellant had been proved beyond any reasonable doubt. [21] Possession alone is of course not sufficient to make out the offence of trafficking because possession is only one element of trafficking. A person who traffics must necessarily be in possession of the drug but a person in possession need not necessarily be trafficking in the drug. To complete the offence, the act of “trafficking” must be proved. [22] Trafficking can be proved either by affirmative evidence or by invoking the presumption under section 37(da) of the DDA. In the present case, as the presumption under section 37(da) applied, the legal burden (as opposed to evidential burden) was on the appellant to prove, on the balance of probabilities, that the drug was not for the purpose of trafficking and not for the prosecution to prove otherwise. [23] It is a rebuttable presumption, but to entitle the appellant to an acquittal, it was not enough for him to merely cast a reasonable doubt in the court’s mind as to whether or not the drug was for the purpose of trafficking. He must prove it by admissible evidence. 8 [24] As to the legal consequence of failing to rebut a statutory presumption, the following excerpt from the judgment of Lord Diplock in the Privy Council case of Public Prosecutor v Yuvaraj (supra) is directly on point: “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such finding will have the consequence of a conviction.” (emphasis added) [25] In Cohen Lorraine Philis & Anor v PP [1989] 2 CLJ 956; [1981] 1 CLJ Rep 18, which was a drug trafficking case, the then Supreme Court recognised that the law on statutory presumptions as stated in Public Prosecutor v Yuvaraj (supra) has become “part of our law”. [26] The learned trial judge in her grounds of judgment applied the double presumption under subsections 37(d) and (da) of the DDA against the appellant, no doubt based on section 37A of the DDA. In other words, she used the presumption of possession under section 37(d) to further presume the presumption of trafficking under section 37(da), i.e. a presumption upon presumption. This can be seen from paragraphs 16, 17, 19, and 38 of her grounds of judgment: 9 “[16] The rule of double presumption under the new Section 37A DDA was brought about by an Act of Parliament vide Dangerous Drugs (Amendment) Act 2014 (Act A1457) which came into force on 15.2.2014. [17] With this recent Amendment Act A1457 primarily, the issue to be determined in this instance is whether the Accused was found to be in custody and control of the bag exhibit P35 containing methamphetamine. If it is found that the Accused was not in custody or control of P35, the whole case for the prosecution will collapse. …….. [19] Once custody and control are proven, the presumption of knowledge under s. 37(d) is triggered. As a chain reaction for proving possession, the possession can invoke the presumption of trafficking under the double presumption rule. ………. [38] As a chain reaction for proving possession, the prosecution can invoke the presumption of trafficking under the double presumption rule. The fact that the Accused in this case, carried the drugs which was more than 50g stated under s. 37(da)(xvi) of the Act i.e. 1,402.0g which automatically triggered the presumption of trafficking, from Kuala Lumpur to Kota Kinabalu, Sabah. Now, unless the Accused proves the contrary the Court must find that the prosecution has established a prima facie case against the Accused.” [27] But this has been held to be wrong by the Federal Court in the recent case of Alma Nudo Atenza v Public Prosecutor [2019] 1 LNS 437 when striking down section 37A of the DDA as being unconstitutional. The apex court then quashed the appellant’s conviction for trafficking under section 39B of the DDA and substituted it with the offence of possession under section 12(1) and punishable under section 39A(2) of the DDA. [28] We need to mention that the Federal Court decision was delivered after the trial of this case and after the present appeal was heard before us. Alma Nudo Atenza (supra) has thus rendered our decision to affirm 10 the decision of the High Court convicting the appellant of the offence of trafficking to be wrong. [29] Had the decision been available then, we would have been bound by the doctrine of stare decisis to acquit the appellant of the offence of trafficking as charged and to substitute it with a conviction for an offence under section 12(1) and punishable under section 39A(2) of the DDA. The conviction under section 12(1) of the DDA would be justified as possession had been proved against the appellant. [30] Given the law as it stands, we shall leave it to the Federal Court to decide on the outcome of this appeal. Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 11 June 2019. For the Appellant: Ram Singh of Messrs Ram Singh & Co. For the Respondent: Muhammad Azmi Bin Ibrahim, Deputy Public Prosecutor, of the Attorney General’s Chambers.