Liau Vui Pin v Pendakwa Raya (B-05(SH)-418-09/2023)

The Appellant was charged in the High Court at Shah Alam with the following charge: “Bahawa kamu pada 16.9.2019 pada jam lebih kurang 01.15 petang di kawasan mesin pengimbas No.6, Gate Q, Aras 3, KLIA 2, 64000 Sepang, di dalam daerah Sepang, di dalam Negeri Selangor telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 738.77 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.”

The learned judge of the High Court found the Appellant guilty and convicted him on the charge. He was sentenced to life imprisonment from the date of arrest and 12 strokes of whipping.

Dissatisfied with the decision, the Appellant appealed to this Court against the whole decision of the High Court. The Case for The Prosecution [4] On 16.9.2019 at around 1.15 pm, PW3 who was on patrol duty at the Satellite Departure area of the Kuala Lumpur International Airport 2 (“KLIA2”) saw a man (the Appellant) looking suspicious as he was seen walking uncomfortably. PW3 tailed the Appellant until the latter was at the scanning machine 6, Gate Q (the “scanning machine”)

PW3 requested the auxiliary police who was on duty at the scanning machine to ask the Appellant to take off his shoes to be scanned. The Appellant himself went through the body scanning machine. PW3 then approached the Appellant and had introduced himself as a police S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal personnel by showing his authority card and had inspected the shoes (P21 (A-B)) worn by the Appellant which were scanned earlier.

Upon inspection, PW3 found two (2) packages which were cello taped in white colour at the inner heel of both sides of the shoes worn by the Appellant. The Appellant himself took out a package which was cello taped in white colour from his underwear. The packages were tendered and marked as P22 (A) – (J).

The Appellant was arrested and the packages were confiscated. The packages suspected to contain dangerous drugs were sent to the Chemistry Department and upon examination and analysis the contents of the packages were confirmed to be Methamphetamine with nett weight of 738.77 grams by the Chemist (PW4). Findings of the High Court [8] The High Court having considered the oral and documentary evidence tendered by the prosecution at the close of the prosecution case ruled that a prima facie case had been made out by the prosecution. The learned High Court Judge accepted the evidence of the prosecution witnesses PW4, PW3, and PW5 in regards to the identification of the dangerous drugs and was satisfied that the prosecution had proven all the elements of trafficking in the dangerous drugs by the Appellant. Having ruled that all the elements of the offence of trafficking in dangerous drugs were fulfilled by the prosecution on prima facie basis, the learned High Court Judge ordered the Appellant to enter his defence. The Appellant elected to give his evidence on oath and called no other witnesses to testify. S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

At the defence stage, the Appellant contended that he had no knowledge and claimed ignorance of the dangerous drugs found with him. He had testified that he relied and trusted wholly on one person by the name of Anson who had informed him that the packages found hidden in the shoes worn by the Appellant and in his underwear contained elephant teeth powder (serbuk gigi gajah). In evaluating the Appellant’s defence specifically to the element of knowledge or mens rea possession, the learned High Court Judge found as follows: “Elemen kedua: milikan mens rea [36] Mahkamah mendapati keterangan pembelaan Tertuduh berkaitan elemen ini terdiri daripada penafian pengetahuan tentang sifat kandungan 5 bungkusan barang kes dadah di dalam sepasang kasut yang dipakainya dan di antara lapisan dua seluar dalam Tertuduh. Ringkasnya, Tertuduh mendakwa percaya sepenuhnya dengan penama Anson yang mengatakan kandungan 5 bungkusan yang dibawanya ialah “serbuk gigi gajah”.

Penerimaan bulat-bulat Tertuduh kepada kata-kata penama Anson tanpa mendapatkan pengesahan tentang kesahihan maklumat itu walaupun Tertuduh ada 5 hari terluang di hotel sebelum berangkat ke Surabaya adalah tidak munasabah dan terjumlah kepada kejahilan yang disengajakan (wilfull blindness). Walaupun bersekolah hanya hingga darjah enam, Tertuduh berpengalaman bekerja di beberapa tempat selain Sandakan, Sabah iaitu Singapura, Johor Bharu dan Kuala Lumpur dan sepatutnya boleh menyelidik lebih lanjut mengenai serbuk gigi gajah itu dan tidak hanya percaya kepada seorang yang baru dikenali yang menawarkan upah yang lumayan untuk tugas membawa ‘ubat’ ke negara lain. If it’s too good to be true, it probably is (not). S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Dari keterangan Tertuduh sendiri, dia merasa pelik kenapa serbuk gigi gajah itu perlu disimpan secara tersembunyi di dalam kasut dan bertanya sebabnya kepada penama Anson. Bila Anson memberi alasan tidak mahu serbuk gigi gajah itu tercicir atau hilang kerana mata Tertuduh yang rabun, Tertuduh hanya menerima saja alasan itu tanpa menyoal lebih lanjut.

Dalam kes Mahkamah Persekutuan PP v Herlina Purnama Sari [2016] 1 LNS 1855 dalam memutuskan prinsip wilful blindness telah menyatakan: “[45] Wilful blindness necessarily entails an element of deliberate action. If the person concerned has a clear reason to be suspicious that something is amiss but then embarks on a deliberate decision not to make further enquiries in order to avoid confirming what the actual situation is, then such a decision is a deliberate one. The key threshold element of the doctrine of wilful blindness itself is that of suspicion followed by (and couple with) a deliberate decision not to make further investigation.”

Setelah menerima bulat-bulat kata-kata Anson, Tertuduh membiarkan beberapa hari berlalu di hotel sebelum penerbangan tanpa mengambil apa-apa langkah mengesahkan atau menyelidik maklumat tentang serbuk gigi gajah itu. Kenyataan Tertuduh tentang rabunnya juga, bercanggah dengan pergerakannya di KLIA2, yang dilihat dari rakaman cctv P37(B) hingga P37 (G), mendaftar masuk dan bergerak ke pintu pelepasan tidak memerlukan tunjuk arah atau dipimpin oleh orang lain. Ini menunjukkan tahap rabun Tertuduh tidaklah begitu teruk hingga dia akan tercicir atau hilang bungkusan-bungkusan itu jika disimpan di dalam beg yang disandangnya.

Malahan, keujudan penama Anson ini juga hanya pernyataan Tertuduh tanpa disokong oleh keterangan lain. Pegawai penyiasat SP6 telah menyatakan Tertuduh tidak dapat menjelaskan nama S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal penuh dan pengenalan lelaki Cina tersebut. Aplikasi wechat tidak memerlukan nombor telefon untuk didaftar, jadi tidak dapat dikesan. Analisa oleh pihak Bukit Aman ke atas telefon Tertuduh juga tidak dapat membantu siasatan. Keterangan SP6 ini tidak disangkal oleh pihak pembelaan.

Walaupun telefon bimbit dan kad sim Tertuduh dikemukakan sebagai eksibit P12 dan P12A, tiada usaha dari pihak pembelaan untuk menunjukkan kepada mahkamah terdapat nombor atau nama Anson dalam telefon tersebut untuk menyokong pembelaannya. Usaha ini bukanlah suatu perkara yang terlalu susah untuk diambil bagi melunaskan beban Tertuduh di bawah seksyen 106, Akta Keterangan 1950. Natijahnya keujudan penama Anson hanyalah pernyataan semata-mata yang tidak mencukupi untuk menyokong keterangan Tertuduh.

Sekiranya penama Anson ini ujud sekalipun, ia tidak mengurangkan penglibatan dan peranan Tertuduh sebagai sebahagian dari rantaian pengedaran dadah dengan menjadi pembawa dadah tersebut dari Malaysia ke negara lain. Mahkamah tidak dapat mempercayai pembelaan Tertuduh berkaitan penama Anson dan penafian Tertuduh yang dia tiada pengetahuan sifat kandungan lima bungkusan dadah yang dibawanya secara tersembunyi itu. Sehubungan itu, Tertuduh gagal membangkitkan keraguan ke atas elemen milikan mens rea.” The Appeal [10] Before this Court, there was no challenge taken as to the finding of the learned High Court Judge on the nature of the drugs after chemical analysis and its weight. S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

The crux of the Appellant’s defence before this Court (and the High Court) was that the Appellant had no mens rea possession and was therefore not guilty of the offence.

The finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the case. Due weight must be given to the credibility of the witnesses to which the learned High Court Judge as the trial judge has the audio visual advantage of assessing and evaluating.

In the instant matter, the fact that the dangerous drugs were found with the Appellant cannot be disputed. Therefore, there is no doubt that the Appellant was in physical custody and control of the dangerous drugs. In the absence of any reasonable explanation by the Appellant, these facts were sufficient to lead to a strong inference that the Appellant knew that the packages found discreetly hidden in his shoes and his underwear contained dangerous drugs. In the English House of Lords case of Warner v Metropolitan Police Commissioner [1968] 2 ALL ER 356, Lord Reid in addressing the issue on knowledge necessary to establish possession stated as follows: “The object of this legislation is to penalise possession of certain drugs. So, if mens rea has not been excluded what would be required would be the knowledge of the accused that he had prohibited drugs in his possession. It would be no defence, though it would be a mitigation, that he did not intend that they should be used improperly. And it is common place that, if the accused had a suspicion but deliberately shut his eyes, the court or jury is well entitled to hold him guilty. Further, it would be pedantic to hold that it must be shown that the accused knew precisely which drug he had in his possession. Ignorance of the law is no defence and in fact virtually everyone knows that there are prohibited drugs. S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal So it would be quite sufficient to prove facts from which it could probably be inferred that the accused knew that he had a prohibited drug in his possession. That would not lead to an unreasonable result.” [Emphasis added]

We find that that the learned High Court Judge did not err in finding that the absence of knowledge of the dangerous drugs as contended by the Appellant on his part was a mere denial. We find no reason to interfere with the learned High Court Judge’s findings and the reasons that follow as quoted in the earlier paragraphs of this judgment. As stated by the learned High Court Judge, the Appellant in his evidence testified that he felt strange when the so-called elephant teeth powder had to be kept hidden in his shoes and had questioned the person by the name of Anson. The Appellant however did not seek further explanation when Anson gave reason that it was to avoid the elephant teeth powder from dropping off or disappear as the Appellant’s eyes was said to be blurred. As stated by the learned High Court Judge, the Appellant accepted Anson’s explanation wholeheartedly. We agree with the learned High Court Judge that the Appellant could seek further explanation to which he did not.

We find that when there is assent to control a thing or things, either after having the means of knowledge of what the thing is or contains or being unmindful whether there are means of knowledge or not, then ordinarily there will be possession. We are of the considered view that the Appellant had the means of knowledge of what the packages contained of. The packages were not with him momentarily. They were with him for a few days. Mens rea possession on the part of the Appellant of the dangerous drugs is compounded by the fact that upon being asked to take off his shoes at the scanning machine at the KLIA2 airport, the Appellant questioned the police on duty as to why he had to do as such when other passengers were not asked to do the same. The Appellant was said to S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal have looked shocked when he was approached by PW3, the conduct of which goes to show that the Appellant knew that what was with him were dangerous drugs. Inference in favour of the Appellant cannot be made as there was no reason for the Appellant to be shocked since PW3 had introduced himself as a policeman. We find that the Appellant’s conduct was influenced by the fact in issue or relevant fact under s.8 of the Evidence Act 1950 i.e. that the Appellant knew what were discreetly hidden in his shoes and underwear were contrabands. We find that from the cross-examinations of the prosecution witnesses and the Appellant’s defence, the explanation proffered by the Appellant of Anson’s instructions, was in the barest form without reasonable fullness of detail and circumstances. We agree with the learned High Court Judge when Her Ladyship concluded that: “[18] Kesimpulan yang lebih munasabah ialah kaedah penyembunyian barang kes dadah memberi indikasi yang tertuduh mengetahui sifat bungkusan yang dibawanya.”

In echoing the view expressed by Raus Sharif PCA (as he then was) in PP v Herlina Purnama Sari [2017] 1 MLRA 499, it is not sufficient for the Appellant to merely assert absence of knowledge when there are many reasons for the Appellant to be suspicious. In that case and on the issue of wilful blindness, His Lordship expressed as follows: “[43] In our judgment, that the manner in which the impugned drugs were concealed in the two boxes which were found in the respondent's luggage goes to show that the respondent knew the contents of the two boxes. It is not enough for the respondent to merely assert absence of knowledge. On the facts, there are many reasons for the respondent to be suspicious that the luggage she was carrying contained impugned drugs. But she wilfully shut her eyes. It is preposterous S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal to accept the respondent's defence that she had agreed to carry something in her luggage to help Jo, a total stranger, to have the two boxes delivered to Jo's friend in Laos.

In our assessment, looking at the evidence in totality, the respondent could not exculpate herself from her involvement in the trafficking of the seized drugs by saying that she had no knowledge or that she was an 'innocent carrier' in this transaction. In our view, she could not be 'innocent' when she voluntarily agreed to hand over the boxes to a third party that she hardly knew in another country without enquiring further as to the contents of the said boxes. The respondent, without any such inquiry, which she would have been reasonably expected to make in any event, had agreed to give the boxes to someone just as a favour for her friend Vivian. The respondent should have refused to carry out such an assignment if no satisfactory explanation as to their contents was forthcoming from Vivian whom she was in contact with. Her failure to do so makes her guilty of wilful blindness.

Wilful blindness necessarily entails an element of deliberate action. If the person concerned has a clear reason to be suspicious that something is amiss but then embarks on a deliberate decision not to make further inquiries in order to avoid confirming what the actual situation is, then such a decision is necessarily a deliberate one. The key threshold element in the doctrine of wilful blindness itself is that of suspicion followed by (and coupled with) a deliberate decision not to make further investigations. Whether the doctrine of wilful blindness should be applied to any particular case would be dependent on the relevant inferences to be drawn by the trial judge from all the facts and circumstances of the particular case, giving due weight, where necessary, to the credibility of the witnesses. (See PP v. Tan Kok An [1996] 2 CLJ 96; [1995] 4 MLRH 256) S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

The concept of 'wilful blindness' had been discussed in a number of local cases but it seems to have had its genesis in the dissenting judgment of Yong Pung How CJ (Singapore) in the case of Public Prosecutor v. Hla Win [1995] 2 SLR 424. The doctrine of 'wilful blindness' can be summarised to be applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on inquiry as to the legitimacy of a particular transaction. To put it another way, if the circumstances are such as to arouse suspicion, then it is incumbent on a person to make the necessary inquiries in order to satisfy himself as to the genuineness of what was informed to him. Should he fail to embark upon this course of action, then he will be guilty of 'wilful blindness'. In other words, he is then taken to know the true situation. He then cannot be said to have either rebutted the presumption of knowledge or have raised a reasonable doubt as to his knowledge of the situation.

Most of the cases where the concept was held to apply concerned cases in which the accused was asked to carry certain articles, or a package, or a bag, or to swallow certain items. In these circumstances, where the request to do any of those things mentioned would be such as would arouse the suspicion of a reasonable person as to the contents, it was upon the accused to make sufficient inquiries so as to dispel or to set straight such suspicions. Should the accused not make any or any sufficient inquiries under those circumstances, the concept of wilful blindness would apply so as to fasten upon him or her the necessary knowledge as to the nature of those contents. In other words, if he deliberately 'shuts his eyes' to the obvious, because he 'doesn't want to know', he is taken to know.

In the present case, based on the evidence, it is our view that the respondent is not an innocent carrier but a trafficker. As we have alluded to earlier, in essence the defence of innocent carrier raised by the respondent has no merit because the S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal respondent had every opportunity to check for herself what she was carrying. In our judgment, any reasonable person similarly circumstanced would have asked what were in those boxes. The respondent here is not a hapless victim caught in the web of inevitable circumstances beyond her control. We find no ring of truth in her story.

Having regard to the totality of the evidence, the surrounding circumstances and the probabilities of the case, it is our finding that contrary to the High Court and Court of Appeal's findings, the trafficking charge had been proved beyond any reasonable doubt against the respondent.” [Emphasis added]

We find that that learned High Court Judge did not err when Her Ladyship stated the followings: “[37] Penerimaan bulat-bulat Tertuduh kepada kata-kata penama Anson tanpa mendapatkan pengesahan tentang kesahihan maklumat itu walaupun Tertuduh ada 5 hari terluang di hotel sebelum berangkat ke Surabaya adalah tidak munasabah dan terjumlah kepada kejahilan yang disengajakan (wilfull blindness). Walaupun bersekolah hanya hingga darjah enam, Tertuduh berpengalaman bekerja di beberapa tempat selain Sandakan, Sabah iaitu Singapura, Johor Bharu dan Kuala Lumpur dan sepatutnya boleh menyelidik lebih lanjut mengenai serbuk gigi gajah itu dan tidak hanya percaya kepada seorang yang baru dikenali yang menawarkan upah yang lumayan untuk tugas membawa ‘ubat’ ke negara lain. If it’s too good to be true, it probably is (not).”

We further find that the learned High Court Judge had sufficiently considered and evaluated the Appellant’s defence and rightly concluded that the Appellant had failed to raise reasonable doubt on the prosecution’s case. It is trite that being a mental element, knowledge cannot and need not be proved by direct evidence. The finding of the S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Appellant’s mens rea possession of the dangerous drugs by the learned High Court Judge is safe as there exist sufficient surrounding circumstances and evidence from which it can be safely inferred that the Appellant must have had knowledge of the dangerous drugs and its nature within his custody and control. There is no gap in the material evidence leading to any contrary inference that the Appellant lacked knowledge of the dangerous drugs. The learned High Court Judge did not err when Her Ladyship viewed that if indeed Anson was the one responsible for the drugs, then the Appellant ought to be able to assist the police in locating Anson via communication he had with Anson because the fact whether Anson exists is a fact especially within the Appellant’s knowledge and it is a burden upon him to prove that fact pursuant to s. 106 of the Evidence Act 1950. The learned High Court Judge correctly stated the followings: “[41] Malahan, keujudan penama Anson ini juga hanya pernyataan Tertuduh tanpa disokong oleh keterangan lain. Pegawai penyiasat SP6 telah menyatakan Tertuduh tidak dapat menjelaskan nama penuh dan pengenalan lelaki Cina tersebut. Aplikasi wechat tidak memerlukan nombor telefon untuk didaftar, jadi tidak dapat dikesan. Analisa oleh pihak Bukit Aman ke atas telefon Tertuduh juga tidak dapat membantu siasatan. Keterangan SP6 ini tidak disangkal oleh pihak pembelaan.

Walaupun telefon bimbit dan kad sim Tertuduh dikemukakan sebagai eksibit P12 dan P12A, tiada usaha dari pihak pembelaan untuk menunjukkan kepada mahkamah terdapat nombor atau nama Anson dalam telefon tersebut untuk menyokong pembelaannya. Usaha ini bukanlah suatu perkara yang terlalu susah untuk diambil bagi melunaskan beban Tertuduh di bawah seksyen 106, Akta Keterangan 1950. Natijahnya keujudan penama Anson hanyalah pernyataan semata-mata yang tidak mencukupi untuk menyokong keterangan Tertuduh. S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Sekiranya penama Anson ini ujud sekalipun, ia tidak mengurangkan penglibatan dan peranan Tertuduh sebagai sebahagian dari rantaian pengedaran dadah dengan menjadi pembawa dadah tersebut dari Malaysia ke negara lain. Mahkamah tidak dapat mempercayai pembelaan Tertuduh berkaitan penama Anson dan penafian Tertuduh yang dia tiada pengetahuan sifat kandungan lima bungkusan dadah yang dibawanya secara tersembunyi itu. Sehubungan itu, Tertuduh gagal membangkitkan keraguan ke atas elemen milikan mens rea.” [Emphasis added] Conclusion [19] It is our unanimous judgment that the High Court had made a correct finding in relying on the chemist’s evidence, direct and circumstantial evidence and the evidence in its entirety to come to the conclusion that the Appellant was trafficking in the dangerous drugs as stated in the charge. We are also unable to disagree with the sentence imposed by the High Court as relevant factors were taken into consideration by the learned High Court Judge.

In the upshot, we dismissed the Appellant’s appeal against conviction and sentence. Dated: 2nd April 2025. Sgd (NOORIN BINTI BADARUDDIN) JUDGE Court of Appeal Malaysia S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Parties: Counsel for the Appellant Anita A/P Vijaya Rajah [Tetuan : Gan & Zul (Kluang)] Counsel for the Respondent Atiqah Binti Abdul Karim @ Husaini [Deputy Public Prosecutor Attorney General’s Chamber] S/N sP/h61ZQekubx9sLOmXdfQ **Note : Serial number will be used to verify the originality of this document via eFILING portal