LIM Cheng Yung v Public Prosecutor (S-05(M)-604-12/2017)

This is the Appellant's appeal against the decision of the High Court of Sabah and Sarawak at Kota Kinabalu, Sabah, which convicted the Appellant of the charge against him under section 39B(1)(a) of the Dangerous Drugs Act 1952 ('DDA') for the offence of trafficking in 749.4 grams of methamphetamine punishable under section 39B(2) DDA. The amended charge reads as follows: “Bahawa kamu pada 19 Mei 2016 jam lebih kurang 02.50 petang di Balai Ketibaan 2, Terminal Lapanagan Terbang Antarabangsa Kota Kinabalu di dalam Daerah Kota Kinabalu, di dalam Negeri Sabah telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 749.4 gram dan dengan itu kamu telah melakukan kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B (2) Akta yang sama.”

At the High Court after a full trial the learned High Court Judge on 7.12.2017 found the Appellant guilty as charged under section 39B(1)(a) DDA. The Appellant was convicted by the learned High Court Judge and sentenced to death.

Before us the Appellant appealed against conviction and sentence. We heard the appeal on 18.3.2019 and after perusing the records of appeal and considering both the written and oral submissions of the learned Deputy Public Prosecutor and learned defence counsel we dismissed the appeal and confirmed the conviction and sentence. We now give our reasons. 3 Material Facts [4] On 19.5.2016, Penguasa Kastam, Mona Liza Binti Hamidun (PW4) together with a team of officers carried out observation and examination of passengers at the arrival hall at the Kota Kinabalu International Airport (‘KKIA”). Custom Officer, Nur Syafiqah Binti Indara (PW2) was on duty as an operator at the scanning machine no. 2 located at the Passenger‘s Examination Unit situated at the Arrival Hall of KKIA. She spotted a black trolley bag (P22) bearing the printed words “I THE WORLD MY STYLE” passing through the scanning machine. Through the scanning machine she saw a suspicious looking image, darkish orange in colour. PW2 directed the owner of P22, a Chinese man (later identified as the Appellant), to proceed to the Examination Counter bringing along P22 with him for further inspection.

At the examination counter, upon instruction by PW2, the Appellant opened the bag and PW2 noticed some clothes inside the bag. When PW2 enquired from the Appellant about the content of P22, the Appellant flipped the clothes in a suspicious manner. PW2 proceeded to inspect the clothing in P22 and felt something hidden amongst the clothing. She then directed the Appellant to take the suspicious item out and discovered it to be a package wrapped with newspaper (P13). The Appellant was uncooperative, refusing to unwrap the package found in P22 that was wrapped with newspaper when PW2 asked him to do so. He told PW2 that P12 belongs to his boss and wanted to call his boss first before doing so. 4

However, on PW2’s instruction, the Appellant unwrapped the newspaper wrapping and inside was a green colored packet with the printed words ‘GUANYINWANG’ (P12). PW2, then notified Joy Rommy Dominic (PW3), a Custom Officer from the Narcotic Branch. The Appellant was then escorted by PW3 and Penguasa Kastam Mona Liza Binti Hamidun (PW4) to the ‘Pejabat Operasi CPP’ where the Appellant was questioned about the green coloured packet. PW3 repeated the scanning of P22 and saw the suspicious looking image. PW3 and PW4 then escorted Appellant to the Cawangan Pemeriksaan Penumpang (‘CPP’) for further examination. PW4 directed PW3 in the presence of the Appellant to open P22 and found it to contain P12. The Appellant explained to the officers that P12 was a box of tea for a friend of Ah Ho, “itu tea, orang kirim”

Upon opening P12, they discovered a compact plastic packet (P13) containing clear crystalline substance (P14). PW3 then used a test kit to conduct an early testing and the substance was found to be Methamphetamine. Upon being questioned about the substance found the Appellant denied that he knew of the substance discovered in P12. The Appellant was escorted to Wisma Kastam where a search list was prepared.

The exhibits were then handed over by PW4 to the investigating officer, Rixon Andrias (PW5), who later sent the drug exhibits to the Chemistry Department for analysis by the chemist, Encik Biling AK Peter Raig (PW11). The chemist confirmed that the substance was 5 Methamphetamine weighing 749.4 grams (‘P14’) which is listed as dangerous drugs under the First Schedule of the DDA. Findings of the High Court Judge [9] At the end of prosecution case, the learned High Court Judge found that the prosecution had made out a prima facie case against the Appellant and proven the following elements:

the subject matter concerned is 749.4 grams of

the Appellant had possession and knowledge of the subject matter; and

the Appellant at the place, time and date stated in the charge against him did traffic the subject matter. [10] The learned High Court Judge accepted the testimony of PW1 and found that the prosecution had proven that the drug seized was the type, nature and weight as testified by PW1 in his witness statement and his report in P6 and P7, respectively. [11] The evidence revealed the quantity of drugs was in excess of the statutory minimum prescribed under section 37(da) of the DDA thus militating against any argument that the drugs were for personal use. [12] The learned High Court Judge found that the prosecution had proven direct trafficking as defined under section 2 of the DDA. The manner in which the drugs were packed was deliberate to avoid detection as well as 6 the fact that the Appellant arrived in KKIA from Kuala Lumpur showed that Appellant was carrying the said drugs for the purpose of trafficking. [13] The learned High Court Judge found that the prosecution had proven a prima facie case against the Appellant as per the amended charge preferred against him. The Appellant was called to enter his defence on trafficking. The Defence [14] The Appellant elected to give evidence under oath and was himself the sole witness for his defence. Essentially the defence of the Appellant was that he was travelling to Sabah for vacation on the day of his arrest. He contended that P12 was given by his friend, Ah Ho in Kuala Lumpur who had requested him to pass to Ah Ho’s friend in Sabah. The name and contact number of Ah Ho’s friend to be given only upon the Appellant’s arrival in Kota Kinabalu. The Appellant became friends with Ah Ho through the WeChat application three (3) months before the Appellant travelled to Kota Kinabalu. The Appellant gave evidence that he had physically checked P12 and saw that it was a package containing Guanyinwang tea but was unaware that it contained drugs. He agreed to bring the package containing the Guanyinwang tea for Ah Ho’s friend in Sabah. P22 was not locked throughout the journey from Kuala Lumpur to Kota Kinabalu and went through the scanning machine and was examined by PW2. The Appellant testified that Ah Ho will only supply his friend’s contact number once the Appellant arrived in Kota Kinabalu. The Appellant was arrested and his 7 hand phone seized by the Customs Officer making it impossible for the Appellant to contact Ah Ho or Ah Ho’s friend. Findings at the conclusion of the trial [15] At the end of the prosecution‘s case having regard to the totality of the evidence adduced, the circumstances and the probabilities of the case, the learned High Court Judge found that the charge had been proven beyond reasonable doubt against the Appellant. After considering the Appellant's version of his defence, the learned trial judge found that the Appellant had failed to raise any reasonable doubt in the prosecution's case. The learned trial judge found the Appellant's defence that he had no knowledge of the impugned drugs to be a bare denial and an afterthought and rejected the appellant defence of no knowledge. [16] The learned trial judge also found that the Appellant had failed to rebut both the statutory presumptions under section 37(d) and (da) on the balance of probabilities. The Appellant was thus convicted and sentenced to suffer the mandatory death penalty as mandated under section 39B(2) DDA. The Appeal [17] Before us, the learned Counsel for the Appellant canvassed mainly five (5) grounds of appeal in his submissions, namely:

that the learned trial judge erred in law and fact when Her Ladyship convicted the appellant on a charge of trafficking in 749.4 grams of methamphetamine under section 39B(1) (a) of the DDA and sentenced him to death. 8

that the learned trial judge erred in law for holding that the prosecution had established a prima facie case at the end of the prosecution case and thereafter find the charge has been proven beyond all reasonable doubt after the defence was called. The prosecution’s evidence was insufficient to invoke the presumption of possession and knowledge under section 37(d) of the DDA for reasons as follows:

the prosecution failed to prove that the Appellant had exclusive custody and control of P22 in which the drugs were discovered;

(ii) no clear finding as to whether the Appellant was in actual possession of the drugs or presumed possession under section 37 (d) of the DDA;

(iii) the presumption of knowledge of the drugs was not proved beyond reasonable doubt by the prosecution. On the totality of evidence, the Appellant has no knowledge of the drugs.

The learned trial judge erred in law and fact in failing to evaluate the evidence thoroughly. She failed to observe the integrity of the evidence was compromised when the exhibits were brought to Wisma Kastam Kota Kinabalu on 23.5.2016.

The learned trial judge erred in law and fact when she convicted the Appellant despite there being clear evidence of breaking of the chain of custody or evidential integrity of the drug exhibits.

The learned trial judge fell into error when she failed to evaluate the evidence in totality. 9 [18] Learned counsel for the Appellant argued that the prosecution’s evidence was insufficient to invoke the presumption of possession and knowledge under section 37(d) of the DDA. The prosecution failed to show that the Appellant had exclusive custody and control of P22 which contained the drugs. As testified by the Appellant, he did not lock P22 and had checked P22 in, unlocked. P22 was unlocked throughout the journey from Kuala Lumpur to Kota Kinabalu and was not in the sole or exclusive custody and control of the Appellant from KLIA to KKIA on 19.5.2016. There was therefore extremely high risk and probabilities that P22 could have been tampered with. [19] The fact that the CCTV recording showed that the Appellant was seen checking in the boarding gate of KLIA without P22 rebuts the presumption of possession under section 37(d) of the DDA. The learned Judge should make a positive finding that there was actual possession and not invoke section 37 (d) of the DDA and then invoke section 37 (da) of the DDA which is a serious misdirection. The circumstances the learned Judge relied on to conclude that the appellant had direct custody and control can be summarised as follows:

the Appellant was travelling alone;

the Appellant opened P22 when instructed by PW2;

the luggage tag (‘P29’) affixed to P22 was printed with the Appellant’s name which meant that Appellant had indeed checked in P22; 10

screenshot taken at KLIA on 19.5.2016 between 10am to 12.30pm shows the Appellant pulling a black trolley bag similar to P22 from KLIA Express;

the Appellant explained that the tea packet belongs to his boss, Ah Ho and was meant as a gift; and

the DNA report (‘P40’) analysis matched the DNA profiles of the Appellant with the clothing items found in P22. [20] Learned DPP in response argued that the trial judge had correctly invoked the presumption of knowledge under section 37(d) of the DDA and even without the presumption the prosecution had successful proved that the Appellant had knowledge of P14. [21] The learned High Court Judge considered the above facts together with the behavior of the Appellant as described by the prosecution’s witnesses which implied that the Appellant had knowledge of the presence of P14 in P22. PW2 had directed the Appellant to open P22, which he did. The manner he handled his clothes as described by PW2 inferred that he was deliberately trying to hide P12 from PW2. The learned trial judge had correctly found that a prima facie case had been established against the Appellant. As we alluded to earlier, the subject matter was a dangerous drug viz. Methamphetamine weighing 749.4 grams was not disputed. [22] As for the element of possession, based on the factual matrix of the case where the Appellant was seen in the CCTV recordings at KLIA pulling P22 before checking in an unlocked P22 and where the impugned drugs 11 were recovered, the learned trial judge found that the Appellant had custody and control of P22 and the impugned drugs inside the said trolley bag. The Appellant never denied P22 was his trolley bag but claimed that he was unaware that it contained the impugn drugs (P14). [23] Coupled with the conduct of the Appellant behaving suspiciously, which is relevant and accepted under section 8 of the Evidence Act 1950, the learned trial judge correctly invoked the statutory presumption under section 37(d) for the element of possession and knowledge of the impugned drugs. [24] Knowledge can be inferred from the surrounding circumstances as well as the conduct of the Appellant (Re: PP v. Abdul Rahman Akif [2007] 4 CLJ 337). The drugs were found concealed inside P22 of which the Appellant had custody and control. He knew of the existence of the tea package and its contents. If the Appellant did not know the contents of the packet he would not have concealed P12. The trial judge found that the prosecution had proved actual possession of the drugs and thus invoked the presumption of trafficking against the Appellant. [25] The Appellant’s defence was that P14 was given to him by his friend, Ah Ho, whom he met three (3) months before his travel to Kota Kinabalu. No details of Ah Ho were adduced as evidence by the Appellant neither was there any evidence of the existence of Ah Ho’s friend in Sabah who was supposed to be the recipient of the tea, P12. In fact, the name and contact number of Ah Ho’s friend were only to be given by Ah Ho when the Appellant arrived in Kota Kinabalu. Further, the Appellant himself had 12 testified during cross examination that he did not even know Ah Ho’s full name. [26] Based on the manner the drugs were being carried in P22 and carefully concealed in a packet of tea wrapped in newspaper (P13) to avoid detection and, taking into the total amount of drugs involved, the trial judge was correct to apply section 2 of the DDA that the Appellant was in fact conveying the drugs for the purpose of trafficking. [27] Learned counsel for the Appellant had submitted that the trial Judge failed to evaluate the evidence thoroughly. Her Ladyship failed to observe that the integrity of the evidence was compromised when the exhibits from which it was kept in the store (P37) was brought to the Wisma Kastam on 23.5.2016 for a press release. [28] Upon our scrutiny of the Appeal Records, we agree with the finding by learned trial Judge that there was no break in the chain of evidence in this case because there was clear explanation as to the movement of the drug exhibits. [29] The learned High Court Judge evaluated the evidence thoroughly and concluded that there was no break in the chain of the movements, custody and handling of the impugned drugs. Her Ladyship had addressed in detail and found no break in the chain of evidence. She had carefully analysed the evidence on the movement of the drug exhibits at various stages and was satisfied that the same drug exhibits were before her during the trial. We are in no position to disturb her Ladyship’s finding of facts 13 which were clearly supported by unshaken evidence of the witnesses before her. [30] The learned trial judge had examined in detail all the evidence that was before her. The defence of the Appellant was one of denial. He denied he had knowledge of the drugs found in P22. The Appellant also failed to rebut the presumption or raised the defence of innocent carrier. [31] In the light of the above, we found no reason to disturb the findings of the learned trial judge. The learned High Court Judge considered the defence case in its entirety and from all angles before she decided that the defence had not raised a reasonable doubt in the prosecution's case. Conclusion [32] We were satisfied that the learned High Court Judge had not misdirected herself in any way to occasion an error either on the law or the facts to warrant appellate intervention. We are satisfied that at the conclusion of the trial, after considering all the evidence adduced, the prosecution had proved its case beyond reasonable doubt and the Appellant was rightly convicted for trafficking in the dangerous drugs as per the amended charge. [33] Having regard to the totality of the evidence, the surrounding circumstances and the probabilities of the case, it is our unanimous finding that the amended charge had been proven beyond reasonable doubt against the Appellant. 14 [34] For all the reasons above stated, we hold that the conviction is safe and amply supported by cogent and overwhelming evidence on record. Therefore, the Appellant's appeal is dismissed and the conviction and sentence of the High Court affirmed. Sgd (HASNAH MOHAMMED HASHIM) Judge Court of Appeal Malaysia Putrajaya Date: 11.9.2019 15 Counsels: Appellant: Mr. Chong Kian Ming Messrs. Kian Ming, Advocates and Solicitors, No. 70, Lot 6, 1st Floor. Block J, Sadong Jaya, Jalan Ikan Juara, 59000 Kota Kinabalu, Sabah. Respondent: Puan Tengku Intan Suraya Binti Tengku Ismail Pendakwa Raya, Jabatan Peguam Negara Malaysia, Bahagian Perbicaraan & Rayuan, Aras 5, No. 45, Jalan Persiaran Perdana, Presint 4, 62100 Putrajaya.