Loh Fung Nian v Pendakwa Raya (B-05(M)-481-11/2021)

The appellant was tried in the High Court at Shah Alam with an offence under section 39B (1)(a) of the Dangerous Drugs Act 1952.

In support of its case, the prosecution had called five (5) witnesses to testify against the appellant.

At the end of the prosecution case, the learned High Court Judge ordered the appellant to enter his defence.

The appellant elected to give evidence on oath and called the Manager of FB Hotel, Cheras, Sow Kok Loong @ Soo Kok Long (SD2) as his witness.

At the end of the defence case, the learned High Court Judge found the appellant guilty on the charge and accordingly he was convicted and sentenced to suffer death.

Being dissatisfied with that decision, the appellant filed notice of appeal to this court.

We will for convenience in this appeal, refer the appellant as the accused in the manner he was referred to in the High Court.

The charge preferred against the accused reads as follows: Bahawa kamu pada 15.5.2019 jam lebih kurang 12.27 malam bertempat di kawasan perlepasan Antarabangsa Sektor 7 Pintu Q Aras 3, Lapangan Terbang KLIA2, 64000 KLIA Sepang Selangor dalam Daerah Sepang dalam Negeri Selangor Darul Ehsan telah mengedar dadah berbahaya jenis Methamphetamine seberat 755.4gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B (1) Akta Dadah Berbahaya 1952 (Akta) yang boleh dihukum di bawah seksyen 39B (2) Akta yang sama.

The background facts leading to the charge can be briefly summarised as follows: [i] On 14 May 2019, at about 12.27 a.m, Constable Mohamad Zulhaikar bin Hussin (SP3) was on duty in front of Gate Q, Departure Lounge of the Kuala Lumpur International Airport 2 (KLIA 2) from 9.00 pm to 8.00 am. [ii] On the day of the incident (15 May 2019), the accused was passing through the ‘Walk Through Metal Detector’ machine, when the said machine emitted an alarm sound and light in the middle of the said machine. There upon, SP3 asked the accused to empty his pocket and removed his waist belt. SP3 saw the accused 4 became nervous. Upon a body search of the accused, SP3 found a bulge at the accused’s left and right thigh. [iii] The accused was then taken to a room, where the accused was asked to remove his trousers. Upon removal of the trouser, SP3 found that both the accused’s thigh was wrapped with transparent plastic and adhesive tape which tied the hard bulge to his inner thigh. There was also another plastic packet inside the accused’s underwear. Both the said plastic packets contained crystalline material which was suspected to be methamphetamine. [iv] The accused was then arrested and taken to IPD KLIA. The items were seized and handed over to the investigating officer, Inspector Heidir bin Nor Zairudin (SP5). The crystalline substances were sent to the chemist (SP4) for analysis who confirmed that the crystalline material contained methamphetamine with a weight of 755.4grams.

The accused was self-employed and operating a business selling computer accessories and mobile phone since August 2018.

In February 2019, he befriended Jeff Sim Chee Hung (herein referred to as “Jeff”) who was a regular customer. In March 2019, Jeff told the accused that he wanted to get a job in Korea. Jeff also invited the accused to join him for a work hunt in Korea.

In May 2019, Jeff introduced the accused to an agent named Kent who would offered them factory jobs. The accused agreed to the arrangement because everything would be managed by Kent. The accused and Jeff were on the WeChat group with Kent being the leader of the group.

On 13 May 2019, the accused and Jeff checked in into FB Hotel in Cheras. On the night of 14 May 2019, Kent and an unknown man came to their room. Kent informed the accused that he needed the accused’s assistance to deliver some goods to another agent named Tai Yang.

When the accused enquired about the goods, Kent and the man acted aggressively. They took off the accused’s spectacles, forced him to shut his eyes and force him to take off his pants.

The accused could feel that Kent and his friend were wrapping something around both of his thighs. They also put something in his underwear. Kent had tried to pacify the accused and told him not to be afraid as those were not illegal items.

The accused did inquire from Kent about the contents of the packages but Kent said the packages had to be carried in such manner for the purpose of tax evasion.

Kent had threatened the accused that if he tried to unwrap and throw away the items, Kent would not hesitate to harm the accused’s family. Kent had showed the accused a picture of his house.

Kent also informed the accused he knew the whereabouts of the accused’s family members, their workplace and their schools. Jeff was also in the room and he looked scared.

Kent later escorted the accused to the hotel concierge for the latter to take a taxi to KLIA2. Jeff was left in the room with Kent's friend. Kent gave the accused the flight ticket and a picture of the hotel that the accused would be staying in Korea later.

The accused didn't check on the items strapped on his thighs and inside his underwear because he was too afraid that Kent would harm his family.

The accused also didn't have any opportunity to seek for help because Kent would make video call every 20 minutes while the accused was in the airport.

The accused maintained that he was an innocent carrier with no knowledge of the drugs found wrapped on his inner thigh and in his underwear. He also alluded to the defence of duress. The Relevant Provisions of Law Section 94 of the Penal Code. 94 Act to which a person is compelled by threats: Except murder, offences included in Chapter VI punishable with death and of offences included in Chapter VIA, nothing is an offence which is done 7 by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided that the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanation 1 - A person who, of his own accord, or by reason of a threat of being beaten, joins gang-robbers knowing their character, is not entitled to the benefit of this exception on the ground of his having been compelled by his associates to do anything that is an offence by law. Explanation 2 - A person seized by gang-robbers, and forced by threat of instant death to do a thing which is an offence by law - for example, a smith compelled to take his tools and to force the door of a house for the gang-robbers to enter and plunder it - is entitled to the benefit of this exception

The learned trial judge then analysed the evidence of the defence and in his judgment concluded as follows: “OKT membangkitkan pembelaan bahawa beliau terpaksa membawa barang-barang tersebut ekoran wujudnya ugutan ke atas OKT dan keluarga OKT iaitu satu pembelaan di bawah seksyen 94 Kanun Keseksaan.

Undang-undang adalah mantap bahawa beban pembuktian pembelaan ugutan (duress) adalah atas imbangan kebarangkalian. Perlu ditekankan bahawa ianya terdapat beberapa syarat yang perlu dipenuhi oleh OKT sebelum Seksyen 94 boleh digunapakai. Antara elemen penting yang perlu dipenuhi ialah bahawa ugutan tersebut memberi kesan kematian dengan serta merta (duress hendaklah bersifat imminent, persistent and extreme) (rujuk kes Chu Tak Fai v. PP [1998] 4 MLJ 246 dan Christopher Uchennaefogwo v. PP [2017] 6 MLJ 696).

Berbalik kepada pembelaan di bawah Seksyen 94 Kanun Keseksaan yang dibangkitkan oleh OKT; pertama, OKT hanya mendakwa bahawa Kent tidak akan teragak-agak untuk membuat sesuatu terhadap dirinya dan keluarganya tetapi tidak menyatakan apakah tindakan-tindakan yang akan diambil oleh Kent ke atas keluarganya sekiranya OKT tidak mengikut perintah Kent. Keduanya, daripada hotel OKT telah menaiki sebuah teksi berseorangan menuju ke KLIA2. Walaupun OKT bersetuju dengan cadangan Timbalan Pendakwa Raya bahawa semasa beliau bersama pemandu teksi, beliau boleh melaporkan perkara yang beliau telah diugut oleh Kent kepada pemandu teksi tetapi OKT tidak berbuat demikian. Ketiganya, saya mendapati OKT mempunyai telefon bimbit dan semasa berada di dalam teksi menuju ke KLIA2, OKT boleh mengambil kesempatan untuk melaporkan kepada polis atau keluarganya sekiranya benar dirinya telah diugut oleh Kent. Keempatnya, apabila sampai di KLIA2, OKT tidak memaklumkan kepada mana-mana pekerja atau polis yang bertugas di KLIA2 dari pintu sehingga tempat beliau ditangkap bahawa dirinya telah menerima ugutan dari Kent. Kelimanya, semasa check-in, OKT juga masih tidak memberitahu kepada sesiapa yang bertugas di kaunter check-in bahawa beliau telah menerima ugutan daripada Kent. Keenamnya, semasa OKT melalui mesin pengimbas dan sebelum ditangkap, OKT juga tidak memaklumkan kepada anggota polis yang menangkapnya (SP3) bahawa beliau telah menerima ancaman dari Kent. [88] Saya mendapati OKT mempunyai banyak peluang untuk memaklumkan dirinya telah diugut oleh Kent untuk membawa dadah tersebut ke Korea. Berasaskan kegagalan OKT memaklumkan kepada pihak-pihak sebagaimana yang dinyatakan di atas, saya mendapati pembelaan OKT telah gagal memenuhi kriteria penting Seksyen 94 bahawa telah wujudnya ugutan yang imminent, extreme dan persistent oleh Kent ke atas OKT.

Berasaskan alasan-alasan di atas, saya mendapati hujahan Peguam bahawa pembelaan di bawah Seksyen 94 Kanun Keseksaan telah dipenuhi yang mana ugutan tersebut akan memberi kesan kepada OKT, dan ahli keluarganya serta adiknya langsung tidak bermerit dan ditolak oleh mahkamah.

Saya juga mendapati isu ketiga yang dibangkitkan oleh pihak pembelaan juga tidak bermerit kerana isu ini telahpun diperjelaskan secara terperinci di peringkat kes prima facie.

Mahkamah Persekutuan di dalam kes PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457 yang telah meringkaskan langkah-langkah yang perlu diambil semasa mempertimbangkan keterangan keterangan yang dikemukakan di dalam sesuatu kes seperti yang berikut: “(i) the close of the prosecution's case, subject the evidence, led by the prosecution in its totality to a maximum evaluation. Carefully scrutinize the credibility of each of the prosecution's witnesses. Take into account all reasonable inferences that may be drawn from the evidence. If the evidence admits of two of more inferences, then draw the inference that is most favourable to the accused.

(ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is "Yes", then a prima facie case has been made out and the defence should be called. If the answer is "No", then,

(iii) prima facie case has not been made out and the accused should be acquitted;

(iv) after the defence is called, the accused elects to remain silent, then convict;

after the defence is called, the accused elects to give evidence, then go through the steps set out in Mat v. PP [1963] MLJ 263"

Berasaskan prinsip-prinsip mantap di atas, saya mendapati pembelaan OKT bukan hanya tidak dapat menyanggah keterangan prima facie ke atasnya, malahan pembelaan OKT langsung gagal membangkitkan apa-apa keraguan munasabah. Sebaliknya saya mendapati keterangan-keterangan yang dikemukakan oleh pihak pendakwaan adalah sangat memberansangkan (overwhelming evidence)

Berasaskan alasan-alasan di atas, saya mendapati pembelaan OKT telah gagal menimbulkan keraguan munasabah ke atas kes pihak pendakwaan. Mahkamah juga mendapati pihak pendakwaan telah berjaya membuktikan pertuduhan ke atas OKT ditahap melampaui keraguan munasabah. The Law on Appellate Intervention [24] An appellate court should be slow in disturbing the findings of facts arrived by the trial court who had the advantage of seeing and hearing the witnesses, unless there are substantial and compelling reasons for disagreeing with the finding. [25] In PP v. Mohd Radzi bin Abu Bakar (supra), the Federal Court held as follows: “Now, it settled law that it is no part of the function of an appellate Court in a criminal case - or indeed any case - to make its own findings of fact. That is a function exclusively reserved by the law to the trial Court. The reason is obvious an appellate Court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial Court." [26] In Che Omar Mohd Akhir v. Public Prosecutor [2007] 3 CLJ 281, the Federal Court speaking through Nik Hashim FCJ (as he then was) held as follows: “It is trite law that an appellate court should be slow in disturbing a finding of facts by the trial judge unless such finding is clearly against the weight of evidence which is not the case here". [27] In a fairly recent case of Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 12 MLJ 67 the Federal Court held that:- “[33] It was a long-settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge's conclusions on primary facts unless satisfied that he was plainly wrong' (the Supreme Court of United Kingdom in McGraddie v. McGraddie and another [2013] 1 WLR 2477).

The 'plainly wrong' test operated on the principle that the trial court had had the advantage of seeing and hearing the witnesses on their evidence as opposed to the appellate court that acted on the printed records. The 'plainly wrong' test was not intended to be used by an appellate court as a means to substitute its own decision for that of the trial court on the facts. As long as the trial court's conclusion could be supported on a rational basis in view of the material evidence, the fact that the appellate court felt like it might have decided differently was irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence was examined by the appellate courts (see paras 34, 76 & 148)." Summary of The Grounds of Appeal [28] The accused canvassed on eleven (11) grounds of appeal:

There was no sufficient evidence of proved that the accused had control and custody, possession and trafficking over the drugs and hence managed to raise a reasonable doubt on the prosecution's case.

The accused has succeeded in rebutting the presumption of knowledge under section 37(d) of the Dangerous Drugs Act 1952 on the balance of probabilities.

The accused’s version of event was given to the police at the first available opportunity by the accused. Hence, it was not an afterthought or a recent invention by the accused;

There was no proper investigation of the defence's version of event by SP5 (the Investigating Officer) had clearly prejudiced the defence of the accused.

There was no fingerprint or DNA evidence linking the accused to the drug or the exhibits containing the drug;

There was no attempt made by the accused to run away from the immigration officers or the police officers when the accused was padded down at the said Walk Through Metal Detector machine area to the discovery of the drugs.

The accused was merely an innocent carrier with no knowledge of the drugs found wrapped on his inner thigh and in his underwear;

Jeff or Sim Chee Hung was arrested on 18 May 2019 and was charged under section 39B of the Act 1952 has somewhat corroborated the accused’s story;

The evidence of the hotel manager, Sow Kok Loong (SD2) show that there was CCTV installed at the FB Hotel and the failure of SP5 to investigate and tender the CCTV had greatly prejudiced the accused.

Failure by the trial judge to appreciate the defence adequately and judiciously;

The defence of duress has been proven. Our Decisions [29] Reading the appeal record and having view the whole of the evidence objectively and from all angles, the submissions of both the learned counsels and learned deputy public prosecutor we unanimously decide as follows: Whether the trial judge was right when he found a prima facie case had been established. [30] At the close of the prosecution case, the learned trial judge was satisfied that the prosecution had successfully established a prima facie case against the accused. Gleaning from the entire evidence, there was overwhelming evidence that the accused had possession of the impugned drugs. The direct testimony of SP3 suffices to explain and prove that the accused had mens rea possession of the dangerous drugs found wrapped on his inner thigh and in his underwear at the material time. We find nothing wrong when the learned trial judge referred to section 2 of the Dangerous Drugs Act 1952 and made finding of direct trafficking of the said drugs which include the act of carrying of the drugs from KLIA2 to Tai Yang in Korea. The quantity of the drugs indicated that intended for trafficking. It was further held by the court that: “40. Mengambil kira fakta bahawa dadah-dadah tersebut ditemui diikat di kedua dua belah peha dan diletakkan di dalam seluar dalam, dengan ikatan yang rapi, saya mendapati dadah-dadah tersebut berada kawalan, jagaan dan adalah munasabah untuk Mahkamah membuat inferens bahawa OKT juga mempunyai pengetahuan ke atas dadah tersebut.” [31] In Lam Chun Wing Joe v. PP [2012] 7 MLJ 504, the High Court held as follows: “There is the direct evidence of PW7 that all the drugs found in this case were strapped to both thighs, the abdominal region and the upper right side of the body below the right armpit of the accused using masking tape. Without even the aid of the presumed presumption under s37(d) of the Dangerous Drugs 1952 (Act 234), the accused was caught red handed to be in actual physical possession of the 786.61g of heroin and 140.1g of monoacetylmorhpines totalling 926.71g. [32] We are mindful that before any act of trafficking within the definition of trafficking under section 2 of the Dangerous Drugs Act 1952 could be involved, possession of the drug in question has to be proved. Augustine Paul J (as he then was) in PP v. Chia Leong Foo [2006] 6 MLJ 705, said: “It must be observed that most of the acts that constitute ‘trafficking’ as defined in s2 of the Act like, for example, keeping, concealing, storing, transporting and carrying drugs involve the prerequisite element of possession…… It follows that a person cannot keep, conceal, store, transport, or carry dangerous drugs within the meaning of ‘trafficking’ in the Act without being in possession of them.” [33] Gleaning from the entire evidence, we find overwhelming evidence that the accused persons had possession of the impugned drugs. It was never disputed by the accused that he was in physical custody and control of the drugs at the time of his arrest. The direct testimony of SP3 was sufficient enough to explain and prove that the accused had mens rea possession of the dangerous drugs found wrapped on his inner thigh and in his underwear at the material time. For the ease of reference, the relevant passages in SP3 evidence (pages 37 -38 enclosure 9 record of appeal volume 2(1)) are reproduced herein: “Apabila OKT buka seluar, saya menjumpai satu balutan pita pelekat kertas yang mengandungi balutan plastik. Saya telah buka balutan di bahagian peha kanan terlebih dahulu dengan buka satu balutan plastik lutsinar yang mana saya tandakan sebagai '81' dan kain warna putih iaitu bandage yang dimaksudkan berselotape dengan pita pelekat kertas yang mana saya tanda sebagai '8 2' di dalamnya mengandungi satu paket plastik lutsinar yang mengandungi ketulan kristal disyaki dadah jenis syabu yang dilekatkan di bahagian inner thigh (alb: 367.4g) sebelah kanan yang saya tandakan sebagai 'B3'. Seterusya, saya buka balutan di bahagian peha kiri iaitu satu balutan plastik lutsinar yang mana saya tanda sebagai ‘C1' dan kain warna putih iaitu bandage yang dimaksudkan berselotape dengan pita pelekat kertas yang mana saya tandakan sebagai 'C2' di dalamnya mengandungi satu paket plastiklut sinar yang mengandungi ketulan kristal disyaki dadah jenis syabu yang dilekatkan di bahagian inner thigh (alb:

360.4g) sebelah kiri yang saya tandakan sebagai 'C3'. Selepas itu, saya melakukan pemeriksaan terhadap balutan yang dijumpai dalam seluar dalam yang dipakai oleh OKT di hadapan pasukan saya dan anggota narkotik dan mendapati di dalamnya mengandungi satu paket plastik lutsinar yang mengandungi bahan ketulan kristal yang disyaki dadah jenis syabu (alb: 307g) yang saya tanda sebagai ‘D2'.” [34] In Koh Tiong Hock v. PP (2010) MLJU 668 the Court of Appeal as follows: “14. In our case the manner the packets P14A-H containing the proscribed drug were taped to the appellant's body, covered with braces and concealed under his T-shirt and jacket to avoid detection supports an inescapable inference that he must have known that they contained dangerous drug. Such inference is further fortified by the appellant's own admission in P35 that he was paid to transport the said drug out of the country. On top of that you need only look at any of the 8 transparent plastic packets P14A-H to see the drug tablets contained therein. Photographs P7A and B show how visible they were to the naked eye, it was most unlikely for the appellant not to have seen them when the packets were taped to the front and sides of his abdomen.

On established facts, there is clearly overwhelming evidence for the learned judge to find not only knowledge and possession but also trafficking as defined under section 2 of the DDA of the proscribed drug by the appellant to require his explanation and to reject what was preferred in the defence." [35] In Parlan Dadeh v. PP [2009] 1 CLJ 717 the Federal Court speaking through Mohd Raus Shariff Augustine Paul FCJ (as he then was) held as follows: “[38] In this case the reaction of the appellant in looking stunned or shocked upon being approached by the police is clearly admissible under s. 8 since it has a direct bearing on the fact in issue as the drugs found were tucked away in the front of the jeans worn by him. The explanation for his reaction must therefore be offered by he himself as required by s. 9. The court cannot, on its own, offer an explanation for his reaction. However, in his defence the appellant did not offer any explanation at all for his reaction upon being approached by the police. It can therefore be validly used as evidence against him. The inference to be drawn from the evidence of conduct of the appellant against the background of the other evidence is that he knew what he was carrying (see DPP v. Brooks [1974] 2 All ER 840). It follows that the stand taken by the appellant in relation to the evidence of conduct is not sustainable. Be that as it may, the evidence of conduct in this case is not very significant in view of the manner in which the appellant carried the drugs on his person from which it can reasonably be inferred that he had knowledge of the drugs in his possession (see the cases referred to earlier, and, in particular, Tunde Apatira & Ors v. PP [2001] 1 CLJ 381 and PP v. Abdul Rahman Akif [2007] 4 CLJ 337). [36] The testimony of SP3 is indeed credible. SP3 had no purpose or reason to fabricate his evidence or concoct it in an attempt to frame or trap the accused for the preferred charge against him. [37] It was further submitted by the learned counsel for the accused that the accused did not make any attempt to run away from the immigration officers or the police officers. Hence, the inference may be made in favour of the accused that he did not know that what he was carrying was dangerous drugs. With respect, we are constrained to say that these argument does not hold enough weight to overcome our evaluation of all the evidence in totality. [38] Even though there was no attempt made to flee but that does not necessarily mean that he did not know the existence of the impugned drugs. The short answer to this point is that the accused had no opportunity to do so as he was suddenly surrounded by SP 3 and other enforcement officers. Any escape attempt may have been futile. [39] In Teh Hock Leong v. PP [2010] 1 MLJ 741, 745, the Federal Court through the judgment delivered by James Foong FCJ (as he then was) held as follows: “[4] First, he contended that the High Court and the Court of Appeal had failed to consider the contemporaneous conduct of the appellant in not trying to escape or putting up a struggle with the police when confronted by PW5 and his men or attempting to disassociate or discard the backpack containing the dangerous drugs. Such conduct, if considered by the courts below, could infer that the appellant had no knowledge of the said drugs in the backpack. [5] It is our view that in order to draw a favourable inference from the appellant’s contemporaneous conduct, his action or inaction must be examined in the light of the situation at the material time. The area where the appellant was confronted by PW5 was the arrival gate of an incoming flight in the KLIA. This was the only exit point where passengers disembarking the plane can enter the KLIA terminal. It is common knowledge that the area was tight and restricted with hardly any room for the appellant to make a successful escape even if he had tried. From here the appellant was then taken by PW5 and his men to PW5’s office in the KLIA. The approximate walking distance was 600–800 metres. Here again the appellant’s chances of a quick getaway were minimal since he was escorted and was within the restricted vicinity of the KLIA building. And, if the appellant were to attempt to throw away or disassociate himself with the backpack during this entire duration described it would evidently be noticeable. Of course, since the drugs were so cunningly concealed, there could be no necessity to take such drastic actions which may attract instant suspicion. So, against these circumstances, the appellant’s docile conduct throughout the period described could not have inferred an absence of knowledge of the said drugs. For this reason, there is no misdirection by the courts below.” [40] In addition, the accused’s conduct in assenting to the packages being strapped on his body and placed inside his underwear and tasked with carrying the items clearly established that he had deliberately assumed control of the packages. The accused said that he did inquire from Kent about the contents of the packages but Kent said the packages had to be carried in such manner for the purpose of tax evasion. [41] Even if the accused had been misinformed or misled as to the nature of the contents, nevertheless in the circumstances surrounding the case are such that it certainly arouse suspicion for the accused to satisfy himself as to the genuineness of what was informed to him by Kent. No reasonable person would put himself in such a dangerous situation. [42] To dispel such suspicions, he should have examined the contents of the packages more-so when he was left alone and had all the time to do so at the KLIA2 airport. It is obvious that the accused deliberately shut his eyes to the obvious and refrained from checking about the contents of the packages. Hence, the concept of wilful blindness would apply so as to fasten upon him the necessary knowledge as to the nature of those contents and therefore the defence of innocent carrier cannot prevail. [43] To fortify this finding, the Federal Court speaking through Mohd Raus Shariff PCA (as he then was) in Public Prosecutor v. Herlina Purnama Sari [2016] CLJU 1855; [2016] 1 LNS 1855; [2017] 1 MLRA 499, had laid down the position as follows: “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.” No Fingerprint Lifting, DNA and CCTV Evidence Linking the Accused to the Drug [44] In the present case, the prosecution had clearly established that the accused was caught red-handed with the dangerous drugs in his possession, hence what else could the accused do apart from saying that he had no knowledge of the said drugs. From the totality of the evidence, there is ample evidence established by the prosecution that the accused had the necessary knowledge of the dangerous drugs in question found on his very person. Thus, fingerprint lifting/DNA/CCTV evidence, would therefore assumed little value of significance unless of course the testimony of SP3 is wholly discredited (see Yeo Kwee Huat v. Public Prosecutor [2011] 5 CLJ 630). The evidential status of such evidence is merely of corroborative value. Fingerprints/DNA/CCTV evidence is relevant and of great significance when identity is in doubt which is not the case here. [45] From the evidence which we have endeavoured, we find that the absence of such forensic evidence before the court was only a minor issue. We find no necessity for us to deliberate at length on this issue raised, safe to say that the direct evidence i.e. testimonies of the prosecution material witnesses clearly shows beyond doubt that the accused had possession and knowledge of the impugned drugs. (see Leow Nghee Lim v. Reg [1956] 1 MLJ 28, Siew Yoke Keong v. PP [2013] 3 MLJ 630 and Chan Pean Leon v. PP [1956] 22 MLJ 237). [46] In PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233, Chong Siew Fai CJSS (as he then was) in delivering the judgment of the Federal Court held: “We also find ourselves in agreement with the learned Deputy Public Prosecutor that the learned trial Judge had erred in law when he faulted PW13 the investigating officer for not lifting the finger prints off the wrappings of the cannabis and for not taking photographs of the street light in front of the house No. 129. Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumes little value or significance." [47] The Court of Appeal in PP v. Ebrahim Mirzaie Hj Ebrahim Deh Mokhtar [2017] 1 CLJ 575 through the judgment delivered by Ahmadi Asnawi JCA (as he then was) held: “[38] The evidential value of CCTV evidence. DNA profiles and fingerprint impressions as decided by high authority is only corroborative. The learned trial judge correctly appreciated the position. In PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233, the Federal Court stated that: Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic and the loytape, therefore, assumes little value or significance. [39] Now, having scrutinised the evidence, we were with the learned DPP that even without the CCTV evidence, DNA profiles and fingerprint impressions, there are sufficient evidence to prove the prosecution's case. [40] The evidence of both PW2 and PW3 (DSM Hairudin bin Abdullah) were uncontroverted that they saw the respondent pulling the bag, exh. P10, before and at the time they approached the respondent. The bag they saw and seized was a brown coloured bag carrying the “Sphere” brand name, exh. P10. It was the respondent himself who had put the said bag in the scanning machine and it was equally the respondent himself who had carried the said bag to the narcotics office. Both testified that the examination of the said bag was done in the presence of the respondent. These are uncontroverted direct evidence which needs no further support for its sustenance.” [48] In Public Prosecutor v. Badrulsham bin Baharom [1987] 1 LNS 72 [1987] CLJU 72, Lim Beng Choon J held as follows: “In the present case, the prosecution had clearly established that the accused was in actual physical custody and control of P3 and its contents. From the totality of the evidence, the prosecution had also clearly established that the accused had the necessary knowledge of P6A-H and the nature of the dangerous drugs in question. In the circumstances, I cannot find fault with the police for failing to send the exhibits to the chemist in order to carry out finger print tests. The contention of the learned defence counsel, with due respect, amounts to nothing more than to ask this court to determine not whether there was sufficient evidence adduced before this court to warrant a conviction of the accused but to determine that the methodology of the police investigation must be 100% correct regardless of the fact that the police had gathered more than sufficient evidence to sustain a conviction of the accused. Besides, the learned defence counsel had failed to question any of the police witnesses as to why they did not send the exhibits for a finger print test. Had such a question been put to any one of them, a satisfactory explanation might have been given. I cannot therefore yield to the suggestion of the learned defence counsel particularly when I am fully satisfied from the totality of the evidence that the accused had knowledge of the dangerous drugs in question. Furthermore, as the bag, P3, and its contents were in his possession at the material time he had ample opportunity to dispose of the dangerous drugs in question when he chose to do so.” The Existence of Jeff and Kent [49] According to SP5, the accused had informed him of “some names” but he did not mention the names of Jeff and Kent. The accused did not give the full names or the particulars of the names mentioned. SP5 had examined the phone but there was no information that could help the investigation of the present case. Hence, the accused has failed not only to persuade us that SP 5 has the duty to investigate what was alleged by the accused against him but has also driven us to conclude that the names given was just a fictitious person made up by the accused to exculpate himself from the dire situation he was caught in. Thus, there is no justification for the accused now to complaint that there is a failure on the part of the police to investigate thoroughly the existence of Jeff and Kent that could cause any prejudice to the accused. [50] The defence also attempted to establish the existence of Jeff and Kent through 1D47 (charge proffered against Jeff) and 1D48 (Jeff cautioned statement) where a similar modus operandi to bring drug to Korea was used, under the pretext of looking for job opportunities. The charge stated the date of offence on 18 May 2019. However, both documents remained as ‘IDs' and not admitted in evidence by the trial court. Therefore, the learned judge had correctly ruled that both documents were irrelevant. Even though Jeff and Kent were not fictitious character but it does not necessarily mean that the accused was not trafficking in the drugs in the face of the overwhelming evidence led by the prosecution. [51] As we have earlier alluded to on the issue of CCTV recording, the accused also relied on SD2's evidence to show that there was CCTV installed at the FB Hotel and the failure of SP5 to investigate and tender the CCTV had greatly prejudiced the accused. With respect, we find that the learned counsel criticisms on this issue unjustified. We have perused through the grounds of judgment and find that the learned trial judge had applied his mind and considered the evidence of the defence. We find that the CCTV’s was only corroborative in nature and its non-production did not create a serious gap in the narrative of the prosecution’s case. In this regard, we were with the learned trial judge, where in his grounds of judgment he had this to say:

Peguam pihak pembelaan telah mengemukakan 1D47 dan 1D48 untuk mencadangkan kedua-dua lelaki tersebut yang dikenali sebagai Kent dengan Sim Chee Hung sebenarnya wujud. Mahkamah ini telah meneliti keterangan SP5 dan SP5 dalam keterangannya telah menyatakan seperti berikut:-

OKT tidak menyebut nama seperti Sim Chee Hung dan juga Kent. OKT ada menyebut nama lain tetapi OKT tidak memberi sebarang butiran pengenalan diri seperti kad pengenalan atau nama penuh untuk buat siasatan lanjut;

1DD47 dan 1DD48 langsung tiada kaitan dengan kes ini;

SP5 telah pergi ke hotel untuk buat semakan tetapi telah dimaklumkan bahawa CCTV yang ada di hotel tidak berfungsi dan OKT telah mendaftar masuk ke hotel tersebut dengan menggunakan namanya sendiri sahaja; dan

SP5 juga telah buat siasatan terhadap telefon bimbit yang dirampas daripada OKT tetapi tidak menjumpai apa-apa untuk membantu siasatan maka telah diserahkan kepada pegawai daripada Bahagian Risikan Bukit Aman untuk tujuan mengesan sindiket dadah jika ada.

Setelah membuat penelitian terhadap 1DD48, Mahkamah ini bersetuju dengan hujahan Puan Timbalan Pendakwa raya bahawa kedua-dua penama tersebut iaitu Kent dan Sim Chee Hung tiada kaitan dengan kes ini kerana:-

Sim Chee Hung langsung tidak cerita bahawa dia berjumpa dengan OKT dan seterusnya berjumpa dengan Kent sebaliknya hanya Sim Chee Hung duduk bersama dengan Kent bermula 14.5.2019 hingga 18.5.2019;

Sim Chee Hung juga tidak berkata telah mengajak OKT untuk kerja di Korea;

hotel yang dikatakan didaftar oleh OKT berada di Taman Midah, Cheras sebaliknya hotel yang didaftar masuk oleh Sim Chee Hung berada di Kepong;

sekiranya Sim Chee Hung menyaksikan apa yang telah berlaku kepada OKT di hotel (OKT diikat matanya dan dipaksa diikatkan dadah pada badan OKT oleh Kent), ianya adalah tidak munasabah untuk Sim Chee Hung mempercayai Kent dan mengikut arahan Kent untuk berkerja di negara Korea.

Berasaskan barang kes dadah ditemui di tubuh OKT, OKT yang mendaftar masuk Hotel tersebut, sudah wujudnya overwhelming evidence yang dikemukakan oleh pihak pendakwaan untuk mengaitkan OKT dengan pemilikan dan pengedaran ke atas dadah tersebut. Keterangan SP5 yang menyatakan bahawa CCTV tidak berfungsi menunjukkan tidak adanya penindasan bukti (suppression of evidence) di pihak pendakwaan. Saya juga mendapati tidak berlaku putus rantaian (break of chain of evidence) ke atas pengendalian barang kes. [52] Support for this proposition can also be found in the case of Public Prosecutor v. Badrulsham bin Baharom (supra) where the learned judge held as follow: “This is exactly what happened in the instant case concerning the detention of Noor Azlan and Bakree bin Jamal. All that the evidence in the instant case has shown is simply this: it is true that the police had detained Noor Azlan for 14 days but nevertheless they could not collect sufficient evidence that could lawfully be used in court to fasten PW7 with the offence with which the accused was charged. This clearly shows that there is no basis upon which the accused could have grounded his allegation or his assertion against PW7. Although PW7 might be involved in the drug trafficking but this court is left in the dark as to the extent of his involvement. Be that as it may, the involvement of PW7 by itself cannot be construed as cogent evidence that the accused was not in possession with mens rea of P3 and its contents at the material time. To accede to the learned defence counsel's suggestion would mean that I would have to arrive at such a conclusion unsubstantiated by evidence except the bare word of the accused which is incompatible with the evidence adduced in this court. More significantly, I would also have to assume that the police deliberately let loose a guilty person and instead chose to charge an innocent man for an offence in which he played very little or no part at all. This I cannot and will not do in the absence of any evidence. Basing on all these pieces of evidence, the upshot is that they strongly bear out the conclusion that the accused had knowledge of the contents of P3. More importantly, these pieces of evidence also fully bear out my conclusion that the collection of P3 by the accused as asserted by him on behalf of and for later delivery to Noor Azlan at the Cathay Theatre on the morning of November 22, 1982 is from its inception highly incredible. In any event, the involvement of PW7, and for that matter Bakree bin Jamal, in the drug trafficking operation which is the subject of the charge against the accused cannot in any way lessen the guilt of the accused because at its highest, it might be a joint venture and it is fortunate for PW7 and Bakree bin Jamal that the police were not able to charge them jointly with the accused.” Duress [53] In order to succeed as a defence, the accused must be able to prove on a balance of probabilities that the duress is imminent, extreme and persistent at the time of the commission of the offence. In Chu Tak Fai v. PP [1998] 4 CLJ 789, the Court of Appeal through the judgment delivered by Denis Ong JCA (as he then was) held as follows: “Turning to this part of the judgment of the trial court, it was obvious to us that here the trial court was considering the plea of duress on the balance of probabilities although not convinced of its truth previously. It was settled law since Tan Seng Ann v. Public Prosecutor [1949] 15 MLJ 87 that a plea of duress under s. 94 of the Penal Code (FMS Cap. 45) to be successful, must be imminent, extreme and persistent at the time of the commission of the offence. The question which concerned the trial court here was whether the appellant might have acted under duress which was imminent, extreme and persistent when he committed the offence on 30 April 1993 at the immigration control post at Bukit Kayu Hitam. The matter crucial to the entire issue of duress was whether Ah Meng’s threats of instant death previously uttered to the appellant had caused him reasonable apprehension of instant death if he failed to commit the offence at Bukit Kayu Hitam. In that regard it followed that the threats and their effect on the mind and actions of the appellant had to be considered in the light of the facts and surrounding circumstances at the material time of the commission of the offence. That was what the trial court had done. We reviewed this part of the judgment of the trial court and we were satisfied that there was no misdirection.” [54] In Mohammad Ghavipanjehjo Ali v. PP [2017] 1 LNS 114, the Court of Appeal through the judgment delivered by Abdul Karim Abdul Jalil JCA (as he then was) held as follows: “[22] Perayu dalam pembelaannya mengatakan bahawa dia telah dipaksa untuk menelan dan membawa dadah tersebut ke Malaysia kerana ugutan bunuh ke atas keluarga dan tunangnya oleh Hussein dan Mehdi (semasa di Tehran). Kami juga dapati pembelaan ini merupakan dalihan kosong (hollow) dan tidak munasabah dalam keadaan kes ini. Undang-undang kini mantap bahawa bagi pembelaan ugutan (duress) di bawah seksyen 94 Kanun Keseksaan, perayu hendaklah membuktikan, atas imbangan kebarangkalian, bahawa ugutan itu mestilah pasti akan berlaku, ekstrem, dan berterusan (imminent, extreme and persistent) pada masa kesalahan dilakukan rujuk Tan Seng Ang v. PP [1948] 1 LNS

67.) Seterusnya dalam kes Chu Tuck Fai [1998] 4 MLJ 246 diputuskan hak perayu untuk mengemukakan pembelaan ini akan hilang jika perayu telah gagal untuk mengambil apa-apa langkah untuk menghilangkan ugutan tersebut seperti meminta perlindungan polis dalam kes Chu Tuck Fai berkenaan. Di sini, perayu semasa diperiksa balas bersetuju bahawa sepanjang penerbangan ke Malaysia dia tidak berasa takut dan tidak diugut. Perayu juga tidak memaklumkan mana-mana pihak berkuasa sama ada di Tehran, dalam pesawat atau semasa diperiksa oleh SP2 bahawa dia diugut seperti mana yang didakwa. Perayu juga mengakui dia tidak juga memaklumkan hal tersebut kepada keluarga. Alasannya, sekadar tidak mempunyai masa dan tidak berkesempatan berbuat sedemikian. Pada hal keterangan menunjukkan perayu mempunyai kesempatan yang luas untuk mengambil tindakan tersebut jika dia sebenarnya diugut. Kami dapati kehendak seksyen 94 Kanun Keseksaan seperti mana dijelaskan dalam kes Tan Seng Ang v. PP, supra, tidak dibuktikan. Pada hemat kami, pembelaan ugutan itu jelas tidak bermerit dan sengaja diada-adakan.” [55] In Babar Ali (w/n Pakistan) v. Public Prosecutor [2020] 1 LNS 10, the Court of Appeal through the judgment delivered by Rhodzariah Bujang JCA (as she then was) held as follows: “[11] The law on the application of this section has been settled since way back in 1949 when it was decided in Tan Seng Ann v. Public Prosecutor [1949] MLJ 87 that in order to succeed as a defence, the duress must be imminent, extreme and persistent at the time of the commission of the offence and this must be proven on a balance of probability. The learned Deputy Public Prosecutor (DPP) has quoted two of this court’s decision in Chu Tak Fai v. Public Prosecutor [1998] 4 MLJ 246 and Mohammad Ghavipanjehjo Ali v. Public Prosecutor [2017] 1 LNS 114 where the same defence was raised by the respective appellants in the cited cases who were also drug traffickers but unsuccessfully, as well. [14 ] …..Notably too, even though the appellant in his examination-in-chief said he mentioned about Shifaq and the two other persons waiting for him outside KLIA when he was arrested, this fact was not put to PW3 and PW6, especially PW3. This would have been the most logical thing to do given his defence that the trolley bag with the drugs was meant for Shifaq and that his own two bags were with them. Further, there is inconsistency in this particular aspect of his evidence because in his cross-examination at page 110 of Volume 2B of the Appeal Record, he said he did not tell the police about Syifaq and two others waiting outside because Syifaq had warned him not to do so. Although in re-examination he reiterated that he told the police about Rashid and Shifaq at the Narcotic Office after his arrest, this inconsistency in his evidence was not explained to the court. In addition, the reason given by the appellant for putting the drugs on his legs which is that it was as instructed by Rashid, is simply improbable because Rashid was thousands of kilometers away and not there to see if his so-called command was followed. Therefore, there is just no logic in complying with such an instruction even though the appellant said he was scared because his brother was killed in Lahore but he never said this death was in any way connected with Rashid and the drugs he was carrying. (See his evidence at page 105 of the Appeal Record Volume 2B.) That statement of the appellant, in our view, was just a ruse to hide the actual fact that he did the said act simply to avoid detection by the authorities. The sheer improbability of the defence is also evidenced by the fact that the drugs, as we had mentioned earlier, was not just tied with strings on the appellant’s legs but also held in place by the compression calf sleeves. This clearly shows that the appellant had done so with prior planning and not on the spur of the moment as raised by him in his defence because obviously the two items we had underlined above could not have been found lying around at KLIA. The prosecution evidence on the existence of these two items from the testimony of PW3 and PW7 as corroborated by the photographic evidence we had mentioned earlier is definitely credible for we see no reason why PW3 and PW7 would want to fabricate their evidence on the existence of these items at all.” [56] The learned trial judge disbelieved the accused’s evidence and considered that the accused did not avail himself when there was opportunity which was reasonably open to the accused to render the threat ineffective, by a safe avenue of escape or by seeking police protection. [57] As rightly submitted by the learned deputy public prosecutor, the alleged threat was that Kent would "membuat sesuatu" towards his family members. The threat was vague and could not be said to be extreme or persistent at the material time. The accused’s family members were not in the custody of Kent or that unknown man, and were not standing in harm's way. As such, the alleged threat cannot be said to be operative on the accused’s mind although he claimed to be concerned or worried. Further, except for the oral threats to the accused’s family members uttered by Kent, there appeared to be nothing to prevent the accused from seeking assistance, especially in the absence of any third party personally keeping watch over the accused at the airport. [58] Upon a careful consideration of this issue, we are unable to find any iota of evidence to show that the accused was under any threat with the thought of safety for his family members. The accused failed to establish his plea that he acted under duress which was imminent, extreme and persistent. The entire story of duress was a fabrication and an afterthought. Conclusion [59] A scrutiny of the said judgment revealed that the learned trial judge had judicially addressed his judicial mind to the defence, placed significance emphasis to it, meticulously considered their versions and adequately explained why he chose to disbelieve the evidence of the defence. To say that the learned trial judge has not considered the defence adequately is certainly without merit. We find no reasons to disturb the findings of the learned trial judge. He had not misdirected himself in law and in fact. The findings were premised on the credibility of witnesses which is within the domain of the trial judge. The accused had failed to raise any reasonable doubt against the prosecution’s case and prosecution had thus proved its case beyond reasonable doubt. [60] For all the reasons stated above, we unanimously find that the conviction of the accused safe and we accordingly dismissed the appeal and affirmed the conviction handed down by the High Court. [61] On sentence, with the Abolition of Mandatory Death Penalty Act 2023 (Act 846) which came into effect on 4 July 2023, we may consider the mitigating and aggravating factors in the exercise of its discretion in determining the appropriate sentence with either death by hanging or imprisonment for a term of not less than thirty (30) years but not exceeding forty (40) years and shall be punished with whipping of not less twelve

strokes. [62] Having considered the facts of the case, the amount of drugs involved, the mitigation by the learned counsel on behalf of the accused, we hereby substituted the sentence of death with 30 years’ imprisonment from date of arrest (15 May 2019) and 12 strokes of whipping. Date: 2nd May 2024 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant : Chang Joo Tian [JT Chong Assoc.] For the Respondents : Ng Siew Wee [Deputy Public Prosecutor]