Liu Yanzhen v Pendakwa Raya (B-05(M)-484-10/2017)

The appellant was charged with the offence of trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952 (‘the Act’). The amended charge (Exhibit B) reads as follows: “Bahawa kamu pada 16 Disember 2013, jam lebih kurang 2.50 pagi, di Cawangan Pemeriksaan Penumpang 2 (CPP2), Terminal Pengangkutan Tambang Murah (LCCT), Lapangan Terbang Antarabangsa Kuala Lumpur, di dalam Daerah Sepang, di dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Methamphetamine berat bersih 1480.9 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 conclusion of the trial, the Appellant was convicted and sentenced to death by the High Court at Shah Alam for the aforesaid offence. Aggrieved by the conviction and sentence, the Appellant appealed to this court. We had unanimously dismissed the appeal and affirmed the conviction and sentence meted out by the learned High Court Judge. We now give our reasons. B.

The salient facts of the prosecution’s case can be garnered from the learned High Court Judge’s grounds which can be summarized as follows: 3

3.1 At about 2 a.m. on 16.12.2013, the Appellant arrived at the Low Cost Carrier Terminal, Sepang (LCCT) from Macau, China. Customs Officer, Halimi bin Hamid (PW4) spotted the Appellant pulling a grey trolley luggage bag (‘bag’) (Exhibit P22) at the arrival hall and asked the Appellant to scan her bag. Suspicious images were seen on the scan and Customs Officer Nirmala a/p Govindan (PW5) alerted PW4.

3.2 PW4 requested the Appellant to open her bag. He noticed a blue plastic circular hose reel (Exhibit P37) placed on top of some clothes. A close examination of the hose reel showed something concealed under the hose wound around the hose reel. PW4 and Customs Officer Ngu Su Siew (PW6) escorted the Appellant to the Narcotics Office at the airport for further examination.

3.3 At the Narcotics Office, Customs Officer Abdul Razak bin Abdul Shukor (PW7) carried out detailed inspection of the bag. PW7 removed the hose from the hose reel and found a plastic cover in the middle of the hose reel. He yanked it out, and found two packages (Exhibits P23A and P23D) concealed therein. Inside Exhibit P23A were two small packages (Exhibits P23B and P23C). Inside Exhibits P23D, P23B and P23C contained crystalline substance.

3.4 PW7 seized the bag and its contents and other items found in a handbag the Appellant was carrying. He then marked the exhibits by placing the date and his signature on them. He later issued a search list to the Appellant and lodged a police report on the arrest.

3.5 The Appellant then was handed over to the Investigating Officer, Sazali Unus (PW9) together with all the exhibits seized from the Appellant at 4 about 7.40 a.m. PW9 made his own markings on the items handed to him by PW5.

3.6 On 23.12.2013, PW9 sent the drug exhibits to the Government Chemist Dr. Vanitha Kunalan (PW8) for analysis who confirmed that the substance contained 1480.9 grams Methamphetamine (Exhibit P16), which is listed in the First Schedule of the Act.

3.7 The clothes found in the bag were sent for DNA analysis and the report (Exhibit P18) indicated that a mixed DNA profile was derived from a T-shirt, panties and brassiere that had come from the Appellant and a male contributor. C. FINDINGS OF THE TRIAL JUDGE AT THE END OF THE

At the end of the prosecution’s case, the learned Judge found that a prima facie case had been established by the prosecution against the Appellant.

The learned Judge made the following findings of facts, amongst others:

5.1 that there was a clear evidence that the drugs analysed by the Chemist (PW8) were the drugs concealed in the hose reel recovered from the bag, that is, 1480.9 grammes of Methamphetamine, a dangerous drug listed in the First Schedule of the Act;

5.2 the bag containing the drugs was seized from the Appellant, wherein the bag and its contents of drugs were in the physical custody of the Appellant; hence, by virtue of the presumption under section 37(d) of 5 the Act, the Appellant was presumed to have possession of the drugs found in the bag;

5.3 the prosecution had proved that the drugs were in the possession of the Appellant for the purpose of trafficking. The drugs were concealed in the hose reel and the quantity carried by the Appellant was much larger than was likely to be needed for self-consumption. The fact that the Appellant was travelling with the bag with the drugs concealed therein and was in the act of conveying or transporting a large amount of drugs from China to Kuala Lumpur when she was arrested, is within the definition of “trafficking” under section 2 of the Act.

The learned Judge referred to cases such as Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64, Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237, PP v Muhammad Nasir b. Shaharudin [1994] 2 MLJ 576, Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705, Jonaidi Mansor v PP [2002] 1 CLJ 73, Koh Tiong Hock v PP [2011] 2 CLJ 377 and Ali Hosseinzadeh Bashir v PP [2015] 1 CLJ 918 to assist her in understanding the law pertaining to the legal requirements for the prosecution to prove its prima facie case against the Appellant.

In view of the above, the learned Judge found that the prosecution had succeeded in proving all the essential ingredients of the offence and a prima facie case against the Appellant. The Appellant was ordered to enter her defence. D.

The Appellant gave sworn evidence and was the sole witness for the defence. Essentially, the Appellant denied any knowledge of the impugned 6 drugs concealed in the hose reel and had no reason to suspect it contained drugs. Her defence was noted by the learned Judge in her grounds of judgment as follows: “31. The accused, a divorcee with two children was from Guangdong and 30 years old. She testified that sometime in October 2013, she befriended a male African known as Michael via an application called Weixin in her phone. She went out with Michael on two occasions. On the first occasion, Michael brought along a male African friend. Michael spoke to her in Chinese. On the second occasion, Michael offered to pay all her expenses and send her on a holiday to Malaysia. She accepted as she had 4 days of leave left and could not afford a holiday on her salary as a chef. She handed him her passport to arrange for her visa. “32. On 15 December 2013, at his request, she went to his house with her bag to collect her passport and flight ticket to Malaysia. Michael opened her bag and placed the hose reel in her bag and told her to deliver it to his brother who was a DJ in Kuala Lumpur. Michael did not give her his brother’s name or mobile number but promised to do so on her arrival in Malaysia. He asked her to purchase a simcard at the airport and call him (Michael) to obtain the brother’s phone number. Michael informed her that his brother would collect the hose reel from her once she had checked into a hotel. The accused said she did not know the name of the hotel as Michael had made the arrangements and the name and address of the hotel were in her phone”. E. FINDINGS OF THE LEARNED JUDGE AT THE END OF

The learned Judge found the crux of the Appellant’s defence was that she was an innocent carrier. The learned Judge, however, found that the Appellant’s defence did not rebut the presumption of possession under section 37(d) of the Act, and hence the Appellant had failed to raise any reasonable doubt against the prosecution’s case (even though we noted that 7 the learned Judge did not expressly state the latter in her grounds of judgment).

The learned Judge’s analysis of the defence evidence in her grounds of judgment are at pages 28-29, Appeal Record, Volume 1, as follows: “38. In my judgment, the defence of the accused that Michael had placed the drugs in her bag was weak and unconvincing. I disbelieved her evidence on this issue. I also disbelieved her evidence that she did know drugs were concealed therein. There was no credible evidence to show that Michael existed as alleged by the accused. It was true at the first opportunity the accused had informed the police that the hose reel was placed in her bag by Michael. But, the accused did not even know his real name or nationality or adduced any evidence to prove that he was not a fictitious person.

In my judgment, the accused’s story as to how the drugs came into the bag was wholly unconvincing. It was incredible that someone she had met only on two occasions would offer to buy her a ticket to go on a holiday to a foreign country and give her money for all her expenses. Her account defied credulity and cast doubt about the authencity of her evidence in regard to the facts which led to her trip to Malaysia. It was also incredible that the accused would have accepted the proposal without even inquiring as to why she was sent on a holiday by someone she barely knew. Her claim that Michael was her lover was illogical on her own evidence.”

The learned Judge then concluded that the Appellant was not an innocent carrier and was guilty of wilful blindness for not checking and examining the hose reel although she had every opportunity to do so.

The Appellant was therefore found guilty of the offence as charged and convicted of the same. The learned Judge sentenced the Appellant to death in accordance with section 277 of the Criminal Procedure Code. 8 F.

Before us, it was submitted by the Appellant that the learned Judge had failed to give adequate appreciation of Appellant’s defence of being an innocent carrier of the impugned drugs. The hose reel was placed by Michael in her bag and the Appellant had no knowledge that the hose reel in her bag contained dangerous drugs. Since the Appellant was going to Malaysia for a holiday, it was reasonable for the Appellant to carry the hose reel which was intended for Michael’s brother in Malaysia. There was no reason to be suspicious of Michael as the Appellant and Michael were lovers and the Appellant trusted Michael. Since the DNA results on the clothing found in the Appellant’s luggage showed a male contributor, it was highly likely to be Michael’s. Appellant had cooperated with the authorities when she was asked to scan her luggage. The Appellant’s conduct at the airport said to be “tergesa-gesa” had been explained by her that it was because it was her first time in Malaysia and she had taken a long time to locate her bag. She further had no idea where the exit was. The drugs were concealed in a manner that no layperson would be able to see what was hidden in the middle of the hose reel; moreover the hose reel was wrapped up in plastic.

The learned Judge had given careful consideration to the Appellant’s defence and had given her reasons for rejecting the Appellant’s defence as we had quoted above. The learned Judge also discussed the law on the defence of innocent carrier in a drug trafficking case, as follows; “36. The defence of innocent carrier refers to a state of affairs where an accused person acknowledges carrying a bag or a box containing dangerous drugs but disputes having knowledge of the drugs. In Venkatesan Chinnasami v Public Prosecutor [2011] 1 LNS 1736, the 9 Court of Appeal discussed what was required to be proved to succeed on the defence of innocent carrier. As said above it is imperative that the success of the defence of innocent carrier depends very much on the facts of each case, a matter that falls within the realm of the trial judge. Ignorance simpliciter is not sufficient to let an accused person off the hook as otherwise every other accused person will allude to that defence. It needs more than that. Without any reason for suspicion, or there is no right or opportunity of examination, ignorance may be a good defence. A hypothetical scenario could be when an accused person receives a package which contains illicit drugs from say, England when not a shred of evidence could establish him having been aware of the circumstances of the drugs being sent to him or having any nexus to him. Prior to the parcel appearing at his door step he would not have had any reason for suspicion or the opportunity to inspect the parcel bearing in mind that the package was beyond his reach until it reached his hands. The rider is that everything depends on the facts.

It was clear from the foregoing that to rebut the presumption of possession under section 37(d) of the Act it was not sufficient for the accused to merely deny knowledge, she must go further and show she did not suspect and had reason to be suspicious of the items in the said bag i.e. she was not guilty of wilful blindness. Under the doctrine of wilful blindness if a man deliberately shuts his eyes to facts which he would prefer not to know, he is taken to have actual knowledge of the facts to which he shut his eyes.”

We were satisfied with the conclusion arrived at by the learned Judge. She was correct in arriving as she did the finding that the Appellant was not an innocent carrier but was a drug trafficker in this case and that the Appellant had failed to rebut the presumption of possession of the impugned drugs.

It was submitted by the Appellant’s counsel that the Appellant’s cautioned statement had mentioned the name of Michael and that cautioned statement was given to the police 2 days after her arrest. However, other 10 than mentioning Micheal’s name (that too not his full name) nothing much was known of Michael who had purportedly placed the hose reel in the Appellant’s bag for the purpose of the Appellant handing it over to Michael’s brother in Kuala Lumpur. The learned Judge had considered this matter and held that the evidence was weak and unconvincing and could not be given too much weight. Moreover, we found the need for Michael to ask the Appellant to convey the hose reel to his brother in Malaysia as too far fetched as if one could not easily obtain such a hose reel in Malaysia – that alone should have raised a red flag in the Appellant’s mind. We therefore agreed with the learned Judge and the defence of innocent carrier was rightfully rejected by her.

It was very clear that the Appellant had failed to raise the defence of ‘innocent carrier’ and thus failed to rebut the presumption of knowledge under section 37(d) of the Act. We agreed with the learned Judge that the Appellant’s defence was highly improbable. No one would have given to another person, who one only knew on two occasions, an all expenses paid trip for a holiday overseas without any strings attached. The facts that the Appellant had met Michael only on two occasions and her failure to furnish useful information or particulars about Michael made her whole defence unconvincing and incredible. We echo the words of the learned Court of Appeal Judge in Venkatesan Chinnasami v Public Prosecutor (supra) and as quoted by the learned Judge in paragraph 14 above. G.

Based on the above reasons, we found no merits in this appeal. We were in complete agreement with the learned Judge when she found that the 11 prosecution had proven a prima facie case against the Appellant and that the Appellant had failed to rebut the presumption of possession under section 37(d) of the Act and to raise any reasonable doubt against the prosecution’s case. That being the case, we found that the prosecution had proven their case beyond a reasonable doubt against the Appellant. We were satisfied that the learned Judge had not misdirected herself in any way to occasion any error either on the law or the facts to warrant appellate intervention. We accordingly found the conviction of the Appellant under the amended charge and her sentence safe. We therefore unanimously dismissed the appeal and affirmed the conviction and sentence imposed by the learned Judge. sgd (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated: 27.08.2019 Counsel/Solicitors For the Appellant : Tina Ong Tetuan Tina Ong & Syazlin Mansor For the Respondent :