Lopatkina Klavdiia (N/Ukraine) v Public Prosecutor (P-05(H)-549-11/2019)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.: P-05(H)-549-11/2019 BETWEEN LOPATKINA KLAVDIIA (N/UKRAINE) ... APPELLANT AND PUBLIC PROSECUTOR ... RESPONDENT (In The High Court Of Malaya In Penang Criminal Trial No.: 45A-24-06/2016 Between Public Prosecutor And Lopatkina Klavdiia) Coram: ABDUL KARIM BIN ABDUL JALIL, JCA RHODZARIAH BINTI BUJANG, JCA MOHAMAD ZABIDIN BIN MOHD DIAH, JCA JUDGMENT

1. The appellant, a Ukrainian was charged and convicted of trafficking in 1541.80 grams of cocaine under section 39B(1)(a) 2 of the Dangerous Drugs Act 1952 (“DDA”) at the Bayan Lepas International Airport Penang (“the Airport”) and sentenced to life imprisonment under section 39B(2) by the learned Judicial Commissioner on 5/11/2018. The amended charge against her reads as follows: “Pertuduhan Pindaan Bahawa kamu pada 31/12/2015 jam lebih kurang 11.00 pagi, di ruang ketibaan domestik Lapangan Terbang Antarabangsa Bayan Lepas, di dalam Daerah Barat Daya, di dalam Negeri Pulau Pinang telah mengedar dadah berbahaya iaitu kokain 1541.80 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39(1)(a) Akta Dadah Berbahaya 1952 yang boleh di hukum di bawah seksyen 39B(2) Akta yang sama.” The amendment was only in respect of the weight of the cocaine where in the original charge the weight was stated as 2100 grams. The learned Judicial Commissioner had in fact earlier discharged and acquitted the appellant of the said charge at the close of prosecution’s case but that decision was reversed by this court on appeal. 3

2. We heard the appellant’s appeal against the conviction and sentence on 3/7/2019 and dismissed the same on the said date. Our reasons for doing so are laid out in this judgment but first we would give a brief narration of both the respective cases for the prosecution and the defence. The Prosecution Case 3. The events which led to the discovery of the cocaine by Detective Sgt. Ghazali Bin Abdullah (PW6) at the Airport are not disputed. The appellant was detained upon her arrival from Kuala Lumpur International Airport which was a transit point for her flight from Dubai International Airport. The reason given by PW6 for stopping her and subsequently inspecting her black bag (Ex.P76) which she was carrying in her right hand and two plastic bags with the words “Dubai Duty Free Alokozay” (Ex.P21 and P35, respectively) in her left hand was that she was behaving in a suspicious manner in that as she approached the exit of the Domestic Arrival Hall she appeared agitated and was looking left and right. The cocaine, disguised as chocolates and candies was discovered in four tins which were in the two plastic bags (two tins in each bag). Nothing incriminating was found in the black bag – only the appellant’s personal items such as her 4 clothings and some cosmetics. The learned Judicial Commissioner had in his judgment at the close of prosecution’s case (at pages 4-5 of the Supplementary Appeal Record) listed the details of the content of the four tins as follows: Tin A 30 multi colored plastic packages each containing a hard substance marked as P23(1-30) and 6 other plastic packages. Tin B 27 multi colored plastic packages each containing a hard substance marked as P30(1-27), 3 silver plastic packages containing a hard substance marked as P31(1-3) and 7 other plastic packages. Tin C 26 multi colored plastic packages each containing a hard substance marked as P37(1-26) and 6 other plastic packages. Tin D 22 multi colored plastic packages each containing a hard substance marked as P42(1-22) and 7 other plastic packages. 5

4. He rightly noted the evidence of PW6 that when the discovery was made, the appellant “... looked agitated and was crying in a fearful manner...”. The above-mentioned packages were sent by the Investigating Officer, Insp. Mohd Sahizal Bin Ahmad Zaki (PW7) to the Chemist, Khairuzzaman Bin Mustafa (PW3) who confirmed that they contained the dangerous drug cocaine and it was of the weight as stated in the amended charge.

5. Since the appellant was in custody and control of the cocaine which were in the two plastic bags carried by her at that material time, the learned Judicial Commissioner raised the presumption of knowledge under section 37(d) of the DDA against her. As for the element of trafficking, His Lordship used the definition of trafficking under section 2 thereof, that is, her act of ‘carrying’ the said drug which is included in the said definition. However, the order of discharge and acquittal was made by His Lordship because of firstly, a serious doubt on the identity of the exhibits containing the cocaine given the different observations made by the chemist vis-a-vis his report and testimony in court and that given in the testimonies of PW6 and PW7 in respect of “... what type of wrapping, i.e. plastic or paper and how many layers in 6 fact formed the wrapping...” of the cocaine. His Lordship then concluded at paragraph 24 of the judgment as follows: “[24] The Court has looked at the various descriptions provided by PW6 and PW7 and PW3 (who contradicts his own report) and has also looked at the physical items tendered in Court and is left with serious doubts as to what type of wrapping actually existed and also what happened to the various layers (be it plastic or paper) that was apparently present upon the items being seized.”

6. The second reason was the failure of the prosecution to produce the CCTV footages recorded at that material time in toto, but only part of it and this was tendered by the Chief Security Officer of Malaysian Airlines, Ahmad Mohaiyeeddin Bin Abu Bakar (PW4). Of significance to His Lordship was the appearance of the appellant before the arrest. That failure, according to the learned Judicial Commissioner amounts to suppression of evidence and section 114(g) of the Evidence Act 1950 was invoked by him against the prosecution. 7

7. The third reason was the shoddy investigation of PW7 in that he failed to investigate the documents produced by the appellant, to wit, Ex.D91-93 and Ex.D96-99 which we would be making further reference to in the later part of our judgment. The particulars of these exhibits as stated in the index to the exhibits tendered at the trial, that is Volume 3 of the Appeal Record are: “D91 - Pernyataan Bertulis OKT yang ditulis kepada ‘International Organization For Migration, Ukraine’; D92 - Surat dari Tetuan Sivanathan kepada Kedutaan Besar Ukraine bertarikh 27.10.2016; D93 - Surat dari Kedutaan Besar Ukraine di Malaysia Kepada Jabatan Peguam Negara Malaysia bertarikh 02.12.2016 dengan lampiran (gambar Igor); D96 - Surat dari Kedutaan Besar Ukraine di Malaysia Kepada Jabatan Peguam Negara Malaysia bertarikh 04.8.2016; D97 - Surat balasan dari Jabatan Peguam Negara Malaysia Kepada Kedutaan Besar Ukraine di Malaysia bertarikh 11.10.2016; 8 D98 - Surat dari Jabatan Peguam Negara Malaysia kepada Jabatan Pendakwa Raya Ukraine bertarikh 15-12-2016; D99 - Surat Polis Negara Ukraine bertarikh 12/5/2017”.

8. The aforesaid failure led the learned Judicial Commissioner to conclude at paragraph 34 of his judgment as follows: “[34] The shoddy investigation carried out by PW7 has clearly prejudiced the Accused. Despite been given substantial information, the lackadaisical attitude of PW7 in investigating matters which could exonerate the Accused is extremely unfortunate. Even on this aspect, I am of the view that the Prosecution has failed to prove a prima facie case and the documents tendered clearly raised some doubt in my mind as to the guilt of the Accused.”

9. As mentioned earlier, the order of discharge and acquittal was reversed by this court and the appellant ordered to give her defence to the charge. The appellant gave a sworn testimony 9 and called an Officer from Ukraine Embassy, Zahrebela Tetyana (DW2) as her witness. The Defence 10. Basically, the appellant’s defence was that she was paid to transport jewelleries by someone named Igor whom she knew through a friend of Anton named Ivan and this Anton was her ex-lover. Anton told her to contact Ivan if she needed money before the former left her to go back to his hometown, Rivne. She was pregnant with his child then and contacted Ivan she did who offered her USD1000 to transport drugs abroad for his friend Igor but changed that offer to jewelleries for a fee of USD2000 when she declined the first offer. She accepted the latter offer after consulting Anton and met up with Igor on the assignment. Three days after that meeting, that is, on 28/12/2015, Igor told her that she was to go to Malaysia for the assignment. He not only booked and purchased her a flight to and fro as well as accommodation in Penang until 3/1/2016 but also a return flight and accommodation in Dubai. According to Igor, jewelleries would be handed over to her in Dubai by his friend. At Dubai Airport, before she boarded her Emirates Airline’s flight to Kuala Lumpur, she was handed the two plastic bags containing the 10 chocolate tins where the cocaine was later found by a black man. She saw the four chocolate tins in the plastic bags but did not open them since they were sealed with cellophane tape and they did not belong to her. According to the appellant upon reaching Kuala Lumpur International Airport, she disembarked and went through the domestic departure gate to go to Penang via a Malaysian Airline flight. Her bag and the two plastic bags were also scanned before she boarded that flight. She was therefore shocked when the cocaine was found in the chocolate tins and was sadden by the conniving acts of Igor and Ivan. As confirmed by both PW6 and PW7, when the discovery was made, the appellant, using hand gestures, had immediately indicated that the said chocolate tins were not hers.

11. DW2 testified that from the documents, Ex.D93-D99 which were official documents from the Office of the Prosecutor General of Ukraine, Narcotic Crime Investigation Department of Pulau Pinang, Ukraine Embassy in Malaysia and from the National Police of Ukraine, there is confirmation that Igor was arrested and that investigation about him being part of a criminal group using young ladies to bring jewelleries to other country was 11 ongoing then. She confirmed that Igor has not been charged and was still under remand at that material time.

12. The learned Judicial Commissioner in his analysis of the evidence adduced by the defence found, based on the fact that appellant had custody and control of the cocaine which were cunningly and carefully concealed in the guise of chocolates and candies, that there was a strong inference that she had knowledge of the said drugs and that she was transporting drugs all along without having to raise the presumption under section 37(d) of DDA. Since the weight of the cocaine was more than the minimum stated under section 37(da)(ix), the presumption under section 37(da) was automatically triggered, said His Lordship further.

13. His Lordship rejected her defence of being an innocent carrier, concluding instead that she was wilfully blind as laid out in paragraph 51 and 52 of his judgment as follows: “[51] The factual matrix of the case was such that the Accused ought to have known that the Tins contained drugs and that she was asked to be a drug 12 courier. The Accused failed to make further inquiries and/or to check the content of the Tins even though she had ample opportunity to do so. If she had opened the Tins, she would have realised that the content were not jewelleries as per Igor’s instruction. The candy and chocolate wrappings found in the Tins would have alerted the Accused that something other than jewelleries were concealed in them. [52] It was upon the Accused to make sufficient, inquiries so as to dispel or to set straight the suspicions. I found that the proper inference to be drawn from the facts and circumstances of this case before me was that the Accused had wilfully shut her eyes to the obvious truth of the matter and merely relied on the assurance given by Ivan and Igor, both of whom she hardly knew. Despite all the opportunities available for her to check the Tins and despite the suspicious circumstances surrounding the whole scheme of events, the Accused chose to turn a blind eye. She did not want to know and chose not to find out that she was carrying drugs. Her lack of compulsion in 13 ascertaining the contents of the Tins demonstrated that she knew they contained drugs and accepted the task assigned to her fully aware of the consequences of her conduct. I am thus of the considered view that the conduct of the Accused in the present case amount to wilful blindness.”

14. On the existence of Igor and Ivan, the learned Judicial Commissioner held upon analysis of the accused’s caution statement and the documentary evidence at the trial that the appellant was consistent in her defence that she was only carrying jewelleries but in her caution statement, she did not mention Igor or Ivan’s name – only Alex and her failure to do so makes her defence an afterthought. In support of that conclusion the Federal Court’s case of Teng Howe Seng v Public Prosecutor [2009] 3 MLJ 73 was cited by His Lordship, together with Hafedz Saifol v Public Prosecutor [2017] 1 LNS 977 and Public Prosecutor v Badrulsham Bin Baharom [1988] 2 MLJ 585. He also alluded to the appellant’s failure to inform PW6 about Ivan and Igor at the time of her arrest. 14

15. As for DW2’s evidence, the learned Judicial Commissioner said her evidence was of little assistance because (as admitted by DW2 in her evidence) she was not involved in the investigation of Igor and only based her evidence on the documents supplied to her. According to the learned Judicial Commissioner, even though Igor is not a fictitious character, this does not disprove the appellant’s knowledge of the cocaine for ownership of the drugs was irrelevant as per this court’s decision in Ali Hosseinzadeh Bashir v Public Prosecutor [2015] 1 CLJ 918. His Lordship then made the following conclusion in paragraph 60-61 of his judgment which led to the finding of guilt against the appellant. “[60] In view of my findings above and based on the evidence so adduced, I found that the defence adduced by the Accused was one of bare denial and an afterthought. It was only my finding that the Accused in this case was guilty of “wilful blindness”. I am satisfied that the defence had failed to raise a reasonable doubt against the prosecution’s case that the Accused had mens rea possession of the impugned drugs by virtue of the following fact:- 15

(ii) The Accused overt act in concealing the impugned drugs in chocolate and candy wrappings in the chocolate Tins to avoid detection give rise to a strong inference of knowledge of the part of the Accused;

(iii) The Accused had ample opportunity to check on the content of the chocolate Tins but chose not to do so which leads to irresistible conclusion that the Accused had knowingly carried the impugned drugs fully aware of the consequences of her conduct. [61] Having made the affirmative finding of possession, I am also satisfied that the defence had failed to rebut the presumption of trafficking under s. 37(da) of the DDA. The defence did not put up any defence to negate the element of trafficking, the defence raised by the Accused was complete denial and as such had fallen short of rebutting the presumption of trafficking, it is my finding that the presumption of trafficking under s. 37(da) of the DDA invoked against the Accused stands unrebutted.” 16

16. As for the sentence, the learned Judicial Commissioner was of the view that a sentence of life imprisonment would suffice as based on the information given by the appellant, Igor was arrested and therefore section 39B(2A)(d) of the DDA has been satisfied . The said section 39(2A) reads: “Section 39B(2A) In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:

(ii) The defence of innocent carrier is not an afterthought and is corroborated by documentary evidence and the evidence given by the Official Consul of the Embassy of Ukraine in Malaysia (DW2); and

(iii) The Appellant had no knowledge as to the actual contents of the four (4) chocolate steel containers (Exhibits P22, P29, P36 and P41) and the manner in which the drugs had been concealed is not sufficient to support the inference of adverse knowledge.” Identity Of The Drug Exhibits 18. In respect of that first issue, it is one which was the basis upon which the order of discharge and acquittal was made by the learned Judicial Commissioner but which finding was reversed by this Court. Nonetheless, learned counsel submitted that the learned Judicial Commissioner was “still duty bound to re- 18 evaluate the prosecution’s case in the light of the totality of the evidence adduced at the trial and subject the evidence of the prosecution to a maximum evaluation.” With respect, we were not persuaded that the learned Judicial Commissioner should conduct that exercise and neither could we revisit that issue given the fact, as we stated earlier that this was the very issue which formed the basis for the reversal of the decision of the learned Judicial Commissioner by this court. The mere fact that the appellant had in her testimony in court reiterated that the chocolates and candies were covered by a single layer of colorful paper as stated in Pol. 31 (Exh.P17) and the police report (Ex.P47) whereas the chemist said they were wrapped with a few layers of colorful plastic does not detract from the fact that the sanctity of the exhibits had been found by this court’s decision to call for her defence. Her evidence on the wrappings was nothing new – it was merely a regurgitation of the same evidence which was adduced during cross-examination of the relevant witnesses at the prosecution stage which we had mentioned earlier. Therefore, without any new evidence adduced at the defence stage, the appellant had to live with the fact that a prima facie case has been established against her and if at all the matter is to be reconsidered by the court, it could 19 only be done by the Federal Court on an appeal against our decision. Indeed that opportunity is a certainty for the appellant since she has already filed a notice of appeal against our decision in the Federal Court. Defence Of Innocent Carrier And Knowledge Of The Appellant 19. These issues were intertwined and would be considered together. Whilst we acknowledged the fact as submitted by the learned Deputy Public Prosecutor (“the DPP”) that the appellant never brought up the name of Igor or Ivan in her caution statement, only Alex and did not inform PW6 about either one of them at the time of her arrest, the undeniable fact is that Igor had been arrested and was therefore not a fictitious person. His existence, however, does not make the appellant an innocent carrier of the cocaine found in her possession for the circumstances in which the cocaine came into her possession should have aroused her suspicion but she chose to turn a blind eye to them. Our reasons for saying so are these: Firstly, although she dealt with Igor about the paid assignment, he did not pass her the purported jewelleries where they were then but an unknown black man in Dubai Airport did. Secondly, 20 she was not given the contact details of the person to whom she was to deliver the purported jewelleries to in Malaysia such as name or handphone/telephone number which in itself should raise her concern and suspicion. As was held by the Federal Court in Public Prosecutor v Herlina Purnama Sari [2017] 1 MLRA 499 at page 511: “[44] 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 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 21 Vivian whom she was in contact with. Her failure to do so makes her guilty of wilful blindness. [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 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 wilfull 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 [1995] 4 MLRH 256).”

20. In this regard learned counsel for the appellant also referred us to this court’s decision in Public Prosecutor v Adetona Lawani 22 [2016] 1 LNS 383 where the facts were almost similar in that the person whom the respondent alleged to have given him the bag containing the drugs was his friend by the name of Aik. This Aik actually existed and similarly too was arrested, convicted and sentenced for a related offence in the Republic of Benin, West Africa. The trial judge’s consideration of this fact led him to reduce the charge from trafficking in the drugs to possession and this court affirmed that finding. However, the main distinguishing feature of that case with ours now is the fact that the respondent was not only given the name of the contact person who would be helping him with his foray into business here in Malaysia which is Leopold but his contact number as well. Both the High Court and this court found Aik to be the real trafficker and the respondent an innocent carrier of the drugs found in the bag which Aik gave to him at the airport to replace his old one.

21. Further, as highlighted by the learned DPP in her written submission before us the chocolate tins were not sealed in a way as made out in the appellant’s allegation. The fact that they were not so is borne out by photographs of the chocolate tins at pages 30-31, 33-34, 36-38 and 40-41 of the Appeal Record Volume 3. In this regard we noted the admission by PW6 in cross- 23 examination that the tins were sealed with cellophane tape but obviously it was not a sealant which was tamper-proof in the sense that it could not be removed and put back on again. So they were not sealed in the sense that there was no recourse for inspection by appellant. The appellant could have but did not even deemed it fit to just open one tin to check its content, bearing in mind again it was given by an unknown black man at Dubai Airport. Furthermore, as noted by PW6, his suspicion was aroused when he said that the chocolates inside the tin were not wrapped properly and could easily be opened. Further, when he opened the tins he detected a foul smell emanating from them. Thus, if the appellant had done so, she would have been similarly alerted by the same facts for there is no logical reason for jewelleries to emit such a smell. Under these circumstances, we are constrained to find that the appellant was definitely guilty of willful blindness as in the like of Herlina Purnama Sari (supra) and scores of others who had been convicted by our courts for the same offence of being a willing drug mule.

22. In further elaboration of our statement above, we wish to state we do not doubt one bit that Igor was the mastermind behind this operation to bring illicit drug into our country but unfortunately for 24 the appellant, the fact that he was one does not exonerate her from the crime alleged against her. This we say because she was obviously complicit in this operation, having failed to prove her defence of an innocent carrier and rebut the presumption of trafficking. To us, on the given facts and scenario in this case, it was not a question of who was the real trafficker but whether the appellant was a willing and knowing participant in the illicit operation. Since to us she was, the appellant cannot be heard to say, as submitted by her counsel, that she was a victim of Igor’s cheating. In coming to this conclusion we are fully aware, as admitted by PW6 in his cross-examination at page 65 of the Appeal Record Volume 2, that the appellant did immediately give a hand gesture and said “not mine” when the cocaine was found but that evidence again does not in any way assist her defence for ownership of the cocaine, as we just said was not the issue in facts of this case and further it is not an element of the charge – her knowledge of and her act of carrying the large amount of the drug in excess of the statutory minimum were.

23. Her initial conduct of behaving suspiciously upon her arrival at the Airport as noted by PW6 and mentioned earlier by us bolstered the finding of mens rea possession against her by the 25 learned Judicial Commissioner and that conduct is relevant under section 8 of the Evidence Act 1950. On this point, we need only refer to Parlan Bin Dadeh v Public Prosecutor [2009] 1 CLJ 717 FC (refd), [2008] 6 MLJ 19 on the cogency of such evidence of conduct in establishing a charge against an accused person.

24. Given our decision above we see no necessity to prolong the discussion on the alleged contradictions in the learned Judicial Commissioner’s finding that the defence was an afterthought for the appellant’s failure to mention Ivan’s and Igor’s names in her cautioned statement and furnishing their personal particulars but yet sentencing her to life imprisonment for giving information which led to Igor’s arrest. We need only stressed here again that upon our review of the evidence adduced at the trial, the appellant had rightly been found by the learned Judicial Commissioner to have failed to rebut the presumption on trafficking and raise any reasonable doubt on her possession and knowledge of the cocaine.

25. Before concluding our judgment and for the sake of completeness, we need to mention that we are aware that at the 26 close of the prosecution’s case, the learned Judicial Commissioner did not invoke the presumption of trafficking but instead used the definition of trafficking under section 2 of the DDA. This we had mentioned earlier at paragraph 5 of our judgment. However as discussed above, after being ordered to call for defence, His Lordship relied on the presumption on trafficking under section 37(da)(ix) of the DDA but this anomaly was never included in the petition of appeal or raised at the hearing before us. Thus, the same did not form part of our consideration of the appellant’s appeal.

26. For the reasons given above, the appeal was dismissed and the sentence of life imprisonment affirmed. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 4th September 2019 Note: This copy of the Court’s Grounds of Judgment is subject to editorial revision. 27 Parties Appearing For The Appellant: Datuk N. Sivananthan Low Huey Theng (Messrs Sivananthan) For The Respondent: Wong Poi Yoke Deputy Public Prosecutor (Attorney General of Malaysia) Cases Referred To:

(ii) Hafedz Saifol v Public Prosecutor [2017] 1 LNS 977;

(iii) Public Prosecutor v Badrulsham Bin Baharom [1988] 2 MLJ 585;

(iv) Ali Hosseinzadeh bashir v Public Prosecutor [2015] 1 CLJ 918;

(vi) Public Prosecutor v Adetona Lawani [2016] 1 LNS 383;

(vii) Parlan Bin Dadeh v Public Prosecutor [2009] 1 CLJ 717 FC (refd), [2008] 6 MLJ 19.