Lakshmi Narashimman Sudarrajan v Public Prosecutor (B-05(M)-179-05/2016)

The appellant was convicted and sentenced to death by the High Court at Shah Alam for the offence of trafficking in dangerous drugs. The charge against the appellant reads: “Bahawa kamu pada 20 Februari 2013, jam lebih kurang 6.35 petang di Cawangan Pemeriksaan Penumpang 1, Balai Ketibaan Antarabangsa, Aras 3, Bangunan Terminal Utama, Lapangan Terbang Antarabangsa Kuala Lumpur, dalam daerah Sepang, dalam negeri Selangor, telah didapati mengedar dadah berbahaya iaitu Ketamine sejumlah 806.6 gram, dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”.

Aggrieved by the conviction and sentence, the appellant appealed to this Court. Having considered the submissions and having read the appeal records, we were unanimous in our view that there was no appealable error on the part of the learned judge as to warrant our appellant intervention. We therefore dismissed the appeal.

In brief, the prosecution’s case disclosed the following facts. On 20.2.2013, Mohd Nazri bin Shafie (SP9) was on duty at the arrival hall of the Kuala Lumpur International Airport when he spotted the appellant carrying two green trolley bags with the brand name “Phoenix” and a black “Studio” sling bag. SP9 instructed the appellant to scan the bags. Criminal Appeal No. B-05(M)-179-05/2016 3

One of the green bags was scanned. It revealed a suspicious image. The scan was manned by Solehuddin bin Isa (SP7) and Sukiman. Upon SP7’s instruction, the appellant opened and emptied the bag. The bag was scanned again and the same suspicious image appeared at the handle of the bag. SP7 and SP9 conducted a physical examination of the bag. When SP7 and SP9 tried to pull the handle of the bag, it got stuck. After several attempts, the handle came off. At the end of the handle, there was a transparent tape. Upon further inspection of the handle, SP7 and SP9 found white substance hidden in the handle of the trolley bag, suspected to be dangerous drugs.

SP7 and SP9 proceeded to inspect the other bag. When they tried to pull the handle of the bag a number of times, the handle came off. SP7 and SP9 made the same discovery of white substance inside the handle as the earlier bag. 4 iron bars (the components of the handle of the bags) were retrieved, wherein the dangerous drugs were concealed.

The appellant and the bags were brought to the CPP1 where a search list was prepared. The exhibits were then handed over by SP9 to the investigating officer, Sazali bin Unus (SP10), who later sent the drug exhibits to the Chemistry Department for analysis. The chemist who did the analysis, Norhaya binti Jaafar (SP5), confirmed that the substance was Ketamine weighing 806.6 grams. Ketamine is listed as dangerous drugs under the First Schedule of the Dangerous Drugs Act 1952 (“the DDA”). Criminal Appeal No. B-05(M)-179-05/2016 4

The learned trial judge considered the following ingredients to be proven by the prosecution:

whether the dangerous drug is Ketamine as listed in the First

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

(iii) whether the appellant had committed the act of trafficking in the dangerous drug at the place and time stated in the charge. [8] In respect of the first ingredient, the learned trial judge accepted the evidence of SP5 on her analysis as to the nature and weight of the drug, being the subject matter of the charge. The learned judge further found that SP5 had not been seriously challenged on her analysis of the drugs. [9] As for the second ingredient, from the evidence of SP7 and SP9, the learned trial judge found that the appellant was in custody and control of the dangerous drugs. From the manner the drugs were concealed and by the reason that the handles of the bags could not be pulled, the learned trial judge invoked section 37(d) of the Act to find that the appellant had knowledge of the drugs concealed in the handles of the two bags, exhibits P7 and P8. [10] In respect of the third ingredient, his Lordship considered the fact that the appellant was travelling from India to Malaysia on Flight MH0183 and Criminal Appeal No. B-05(M)-179-05/2016 5 was carrying exhibits P7 and P8. Exhibits P7 and P8 were checked in under the appellant’s name and the bags contained clothing that fits the appellant. The learned trial judge thereafter made a finding that the appellant was trafficking in dangerous drugs under section 2 of the Act. [11] The learned trial judge thus found that the prosecution had made out a prima facie case. The appellant was called upon to enter his defence. The Defence [12] The appellant gave evidence under oath. The gist of his defence was as follows. The appellant was working as a data entry clerk in India. He had a business in ‘computer furniture’. The appellant came to Malaysia to purchase chip board for his business. The bags, exhibits P7 and P8, were given by “Nazir” to the appellant at the airport. “Nazir” was a stranger to the appellant. The appellant was to give exhibits P7 and P8 to “Nazir”’s brother-in-law (the husband of “Nazir”’s sister). The appellant did not know the name of “Nazir”’s sister and/or the husband. Neither did the appellant has any details of them. Findings at the conclusion of the trial [13] The learned trial judge examined the defence as against the prosecution case and concluded that the defence version was highly improbable. The learned trial judge found that the defence had failed to raise a reasonable doubt on the prosecution case. The appellant was thus convicted and sentenced to death, hence the appeal. Criminal Appeal No. B-05(M)-179-05/2016 6 The Appeal [14] Before us, learned counsel for the appellant canvassed three (3) issues, namely:

that the element of possession had not been proven;

(ii) that the appellant had been denied the services of an Interpreter; and

(iii) that the appellant should have been charged under the Poisons Act 1952. [15] On possession, it was the submission of learned counsel that the learned trial judge had misdirected himself in failing to make a positive finding on possession. Learned counsel argued that the learned trial judge must make an affirmative finding of possession before the presumption of trafficking under section 37(da) of the DDA can be invoked. It was the contention of learned counsel that the appellant only had custody and control but had no knowledge of the drugs in exhibits P7 and P8. [16] As regards the interpreter, learned counsel highlighted that ten (10) of the prosecution witnesses gave evidence in Bahasa Malaysia, whereas the appellant who came from India and had only been to Malaysia twice, was not conversant in Bahasa Malaysia and could not have understood the proceedings conducted in Bahasa Malaysia. Learned counsel relied on the case of Fidelis Daniel Enechukwu v PP [2015] 4 CLJ 180, where this Court remitted the case to the High Court for retrial, having found that there was a Criminal Appeal No. B-05(M)-179-05/2016 7 breach of the provisions of section 270 of the Criminal Procedure Code, on interpretation of evidence to an accused person. [17] On the last issue, learned counsel submitted that there was a doubt as to whether the appellant was trafficking in dangerous drugs or poison. This submission was advanced on the basis that Ketamine is also provided for under the First Schedule of the Poisons Act. Whilst acknowledging that the Public Prosecutor has the absolute discretion to prefer a charge against the appellant under the DDA, learned counsel submitted that on the facts, the court should amend the charge to one under the Poisons Act. Our Findings [18] In arriving at his finding that the appellant had possession of the dangerous drugs, the learned trial judge accepted the evidence of SP7 and SP9 who testified that they saw the appellant carrying the bags, exhibits P7 and P8. Having found that the appellant had custody and control of the bags, his Lordship then invoked the presumption of knowledge under section 37(d) of the DDA. [19] We were therefore unable to sustain learned counsel’s submission that the learned trial judge misdirected himself for failing to make an affirmative finding on possession before invoking the presumption of trafficking. The issue of making an affirmative or positive finding of possession did not arise as the learned trial judge had found that the appellant was presumed to have knowledge of the drugs in exhibits P7 and P8. His Lordship did not invoke the presumption of trafficking. He had instead found that the prosecution had Criminal Appeal No. B-05(M)-179-05/2016 8 proved the element of trafficking under section 2 of the DDA and rightly so because the law does not provide for presumption of trafficking for Ketamine. [20] For ease of reference, we reproduce below the findings of the learned judge on the issue of possession: “18. Isu penting sekarang ialah samada OKT mempunyai pengetahuan terhadap dadah tersebut. Elemen pengetahuan tidak dapat dibuktikan secara keterangan langsung. Sebaliknya Mahkamah harus melihat kepada fakta dan “surrounding circumstances” (rujuk kes Gunalan a/l Ramachandran & Ors v PP [2004] 4 MLJ 489, Teh Hock Leong lwn PP [2008] 4 CLJ 764).

Adalah menjadi fakta yang tidak dipertikaikan bahawa dadah berbahaya tersebut telah disembunyikan di dalam batang besi penarik bagasi. Dadah berbahaya tersebut telah disimpan dengan rapi sehinggakan jika dilihat dengan mata kasar dan sekali imbas sahaja tidak mungkin dapat diketahui terdapat dadah di dalam bagasi tersebut. Tambahan pula dadah tersebut disorok dalam batang besi yang telah diubahsuai dengan kemas serta dilekatkan dengan pita pelekat dalam bagasi P7 dan P8.

20.