Louis Nonsu Chukwudui v Pendakwa Raya (B-05(M)-577-12/2017)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: B-05(M)-577-12/2017 BETWEEN LOUIS NONSU CHUKWUDUI … APPELLANT (W/Nigeria)(Passport No:A02576716) AND PUBLIC PROSECUTOR … RESPONDENT (In The High Court Of Shah Alam, Selangor In The Matter Of Criminal Trial No.: 45A-47-02/2013 Between Public Prosecutor And Louis Nonsu Chukwudui (Passport No:A02576716)) Coram: Mohtarudin Bin Baki, JCA Rhodzariah Binti Bujang, JCA Mohamad Zabidin Bin Mohd Diah, JCA 2 GROUNDS OF JUDGMENT

(1) The appellant, a Nigerian national was charged with trafficking in 495.6 grams of methamphetamine under section 39B (1) (a) of the Dangerous Drug Act 1952 (“DDA”) and was convicted of the same by the High Court in Shah Alam on 27/11/2017. His appeal against the said conviction and mandatory death sentence passed on him was heard by us on 11/2/2019 but which appeal we dismissed. The reasons for that decision will be laid out in this judgment but first we would reproduce the charge, which is in Bahasa Malaysia, below: “Bahawa kamu pada 30 Jun 2012, lebih kurang jam 3.00 pagi di Cawangan Pemeriksaan penumpang, CPP 1, Balai Ketibaan Antarabangsa, Terminal Utama Lapangan terbang Antarabangsa Kuala Lumpur, di dalam daerah Sepang, dalam negeri Selangor Darul Ehsan telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 495.6 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 38B (1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B (2) Akta yang sama”. 3 Background Facts

(2) The facts that form the background of this appeal, both for the prosecution as well as the defence, are relatively simple. The appellant was seen at about 11.45 p.m. behaving suspiciously on 29/6/2012 by two Customs Officers (PW15 and PW16) who were on duty at the Passengers Examination Unit of KLIA (“the Airport”) and was directed to do a body scan by them. PW15’s suspicion was alerted by the fact that the accused was not carrying a big luggage, only a sling bag and he not only looked tired with red eyes but was also copiously sweating with a strong body odour. When questioned by him, the appellant stammered said PW15. Prior to this incident, PW16 said there was also a passenger found to have carried drugs in his body. The appellant’s appearance evoked this memory and PW16’s suspicion was therefore aroused. The image on the screen from the appellant’s body scan showed a suspicious image and the said officers then detained the appellant. At 2.45 a.m. the following day, the appellant complained of a stomach ache and to cut a long story short, he defecated a total of 81 pills at various times and places which learned counsel for the appellant has helpfully summarised in his written submission before us as follows: 4 Tarikh Masa Tempat Jumlah kapsul dikeluarkan dan tandaan Saksi 30.6.2012 3.00 pagi Tandas OKU, Tingkat 3, Balai Ketibaan, KLIA 29 (A1-A29) Mokhadinil Akma bin Moktar (SP15) dan Ramis a/l Manikam (SP16) di mana SP15 telah membuat laporan polis seperti di Ekshibit P54 di mukasurat 78 Rekod Rayuan Jilid 3 30.6.2012 7.20 pagi Bilik Dekontiminasi 2 24 (B1-B24) Ab Malek bin Pios (SP17) yang telah membuat laporan polis mengenainya seperti di Ekshibit P55(A) dan P55(B) di mukasurat 79 dan 80 Rekod Rayuan Jilid 3 30.6.2012 11.05 pagi Wad 6C Bilik 28 (lihat keterangan Mohd Ezany Mat Zin [SP8] di mukasurat 46 Rekod 12 (B25- B36) Rasid bin Ahmad (meninggal dunia sebelum perbicaraan) yang telah 5 Rayuan Jilid 2A) membuat laporan polis mengenainya seperti di Ekshibit P68 di mukasurat 94 Rekod Rayuan Jilid 3 dan memberikan percakapan beramaran seperti di Ekshibit P67 di mukasurat 92 hingga 93 Rekod Rayuan Jilid 3.

30.6.2012 1.30 petang Wad 6C Bilik 28 (lihat keterangan Mohd Ezany Mat Zin [SP8] di mukasurat 46 Rekod Rayuan Jilid 2A). 10 (B37- B46) Rasid bin Ahmad (meninggal dunia sebelum perbicaraan) yang telah membuat laporan polis mengenainya seperti di Ekshibit P68 di Mukasurat 94 Rekod Rayuan Jilid 3 dan memberikan percakapan beramaran seperti di Ekshibit P67 di mukasurat 92 hingga 93 Rekod 6 Rayuan Jilid 3.

30.6.2012 6.30 petang Bilik Dekontiminasi 2 4 (B47-B50) Saminan bin Abdul Aziz (SP18) yang telah membuat laporan polis mengenainya seperti di Ekshibit P59 di mukasurat 83 Rekod Rayuan Jilid 3.

1.7.2012 1.55 pagi Bilik 28 Wad 6C 1 (B51) Amirul Nazraf bin Kasbolah (SP19) yang telah membuat laporan polis mengenainya seperti di Ekshibit P61 di mukasurat 86 Rekod Rayuan Jilid 3.

3.7.2012 8.40 malam Wad 6C 1 (B52) Ruslam bin Ismail (SP20) yang telah membuat laporan polis mengenainya seperti di Ekshibit P64 di mukasurat 89 Rekod Rayuan Jilid 3. 7 These pills were then sent for analysis to the Chemistry Department at Petaling Jaya and PW6, the chemist, found them to contain methamphetamine and of the weight as stated in the charge. Based on these salient facts, the learned High Court found and rightly so that a prima facie case has been made out by the prosecution on the grounds he had possession of the drugs and from his conduct, that is, looking shocked and stammering when asked to do a body scan, the appellant had knowledge of the same as per Parlan Dadeh v Public Prosecutor (2009) CLJ 717 and Isa bin Mohamad v Public Prosecutor (2016) 4 CLJ 113. His Lordship also raised the presumption of knowledge against the appellant under section 37(d) of the DDA and that he was trafficking in the said drugs by virtue of the definition of trafficking under section 2 of the DDA. The Defence

(3) In his defence, which was given under oath and noted by the learned High Court Judge to be the same as his caution statement (ExD73), this was the appellant’s second visit to Malaysia – the first was to source Honda car spare parts for his business in Ogon, Nigeria. He said just prior to this fateful trip of his he had passed his passport to an agent back home because he wanted to get a visa to go to India (before Malaysia) 8 but the agent passed that passport of his to one Anedo, a man unknown to him then. At a subsequent meeting with Anedo which was just a day before he left for Malaysia, Anedo who was with 3 other men, demanded USD1,300.00 for the visa to India and Malaysia which money he didn’t have. So he had no alternative but to take the other option given by Anedo – that was to bring a consignment to Malaysia which were the pills which Anedo told him were cosmetics. He was forced to swallow the pills and it took 5 to 6 hours to complete the task. The appellant alleged that he was also beaten up by Anedo and two of his friends during the process. In addition, he was also threatened that his mother would be killed if he did not follow their bidding. The appellant said he was escorted to Lagos Airport in Nigeria by Anedo and a Nigerian policeman who was Anedo’s friend. Inspite of this allegation of threat and physical violence, the appellant also said Anedo gave him USD2000 as pocket money and made a hotel booking for him at Maya Hotel, KL Sentral for one night (ExP48) and his flight reservation tendered as ExP47 shows a return flight on 8/7/2012. The learned High Court Judge found the defence was a mere denial which has failed to rebut the presumption of knowledge under section 37(d) and had also failed to raise any reasonable doubt on the prosecution case. 9 The Appeal

(4) 3 issues were raised by the appellant’s counsel before us at the hearing of the appeal and the first of which was that the charge was defective. The second was whether methamphetamine stated in the chemist report (ExP13) was a dangerous drug under the DDA and lastly on the shoddy investigating by the Investigation Officer. However, in his written submission, he also raised the issue of the break in the chain of evidence, whether section 37(d) was applicable in this case and whether the learned High Court Judge had rightly considered the defence and did so according to the law. These issues would be addressed in the order that they were presented above. 1st Issue

(5) As was listed in the table of summary reproduced earlier, the pills were defecated at different times and at 2 places by the appellant, that is in the toilet of KLIA and Serdang Hospital, respectively. Therefore, said learned counsel, there should be two separate charges to reflect the said places. With respect, we are unable to accede to that argument, attractive it may be. Our reason is simply this. It cannot be denied that all the 81 pills were inside the stomach of the appellant when he arrived at KLIA 10 for we cannot ignore the obvious fact that he defecated them. What is more damning he even admitted swallowing the pills although he said it was done under threat and duress. Therefore the charge, the purpose of which is to give him notice of the place and time of the offence, has rightly stated the said time and place where the pills’ image was seen during the body scan. In other words there was just one place where the pills came from and that was the appellant’s stomach. It is no different from a situation where, for example, drug was concealed in a bag but somehow the discovery was made at 2 places – at the house and later at a police station upon a more thorough investigation of the bag. Surely the prosecution is entitled to frame the charge to state the first place of discovery for it was in the exact same bag that the drug was found. Thus on the facts of this case, the charge has not run afoul of section 153 (1) of the Criminal Procedure Code which provides: “The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom or the thing, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.” 11 We noted, as submitted by learned counsel that in Emmanuel James Kalu v Public Prosecutor (2017) 1 LNS 385 where the same modus operandi to bring drug into Malaysia was used, the charge stated the date of the offence as between 18/3/2012 to 21/3/2012 at Hospital Serdang because the appellant in that case excreted the 60 capsules containing the drug on 3 different dates during that period. However, in the said case the drugs were only discovered when the appellant was brought to the said Hospital for x-ray. This way of framing the charge is of course permissible but that is not to say that the one adopted in this appeal before us was wrong and renders the charge defective. As for the High Court case of Public Prosecutor v Norzilan bin Yaacob & Anor (1989) 1 MLJ 442, where the High Court Judge opined that separate charges be framed for the 3 different places in the house where the drug was found, it being a lower court’s decision, the same is not binding on us. 2nd Issue

(6) The complaint here is that PW6 in her report ExP13 states that, “Methamphetamine adalah disenaraikan dalam Jadual Pertama Akta Dadah Berbahaya 1952” 12 but did not say that it was dangerous drugs as listed in the First Schedule of the DDA. There is a doubt here, submitted learned counsel based on the High Court’s decision of Kamarul Fakaruddin Mohamed v Public Prosecutor (2013) 7 CLJ 636 because methamphetamine is also listed in the Poison Act 1952. With respect, that decision besides being a High Court decision which again is not binding on us, it was also not an authority for the proposition made because the chemist in that cited case only said that amphetamine and methamphetamine were found in the accused’s urine – no reference made to the DDA at all whereas in this case before us direct reference was made to the First Schedule of the DDA. Given that clear reference, there is no ambiguity or confusion that the methamphetamine found was a dangerous drug as listed in the First Schedule. 3rd Issue

(7) Learned counsel for the appellant submitted that the Investigating Officer (PW21) did not investigate the existence of Anedo (spelt Anedu by him), the hotel booking under the appellant’s name, his handphone which was seized upon his arrest or the call he received at the time of his arrest which according to the appellant in his caution statement was from the 13 contact person according to Anedo who would take him to the hotel. On the existence of Anedo, we noted there is from the appellant’s caution statement and testimony in court insufficient particulars given of that person for the Investigating Officer to investigate. There was just his name given and the Investigating Officer said he did call the international numbers in the appellant’s handphone but received no reply although he did not record this in his investigation diary [see pages 218 to 219 of Appeal Record Volume 2 (c)]. As for the hotel reservation, since it was in the appellant’s name, we agree with the learned Deputy Public Prosecutor that there was nothing to investigate. Further, given that the drugs were found in the pills swallowed by the appellant, his possession of the drugs was beyond reproach. Even if the appellant was prevented from answering the call when he was being interrogated by PW16 at the Airport (but which allegation PW16 denied) and the appellant did tell PW16 that the caller was Anedo but such an action, does not have any adverse effect on the prosecution case because of the defence of the appellant which we must say was one which was too far-fetched and defies logic. This is because no one in the right mind would force him to swallow the pills upon threat of murder and beat him up to boot but yet give him pocket money of 14 USD2000, which is by no means a small sum of money, as well as book a hotel room for him.

(8) Since we are on the defence of the appellant we might as well say, in answer to the last issue raised by his counsel that the learned High Court Judge had rightly rejected the same despite His Lordship stating this (at lines 605 to 607 of page 231 Volume 2C of the Appeal Record) on the demeanour of the appellant. “Pemerhatian Mahkamah kepada demeanour Tertuduh di bawah seksyen 271 Kanun Tatacara Jenayah. Mahkamah berpandangan Tertuduh tidak bercakap bohong.” (emphasis added) It is obvious when one were to read the learned High Court Judge’s ground of judgement at paragraph 62 that the above statement was a typographical error for it were not His Lordship would not have clearly said this in the said paragraph: “Dapatan Mahkamah di Akhir Kes Pembelaan [62] Mengenai isu lain, Mahkamah berpandangan bahawa Tertuduh gagal menimbulkan keraguan yang 15 munasabah. Pembelaan Tertuduh adalah penafian. Mana mungkin dia tidak tahu barang yang ditelannya itu dadah. Dia juga dibayar atau diberi wang poket untuk membawa kapsul tersebut ke Malaysia. Demenour Tertuduh semasa memberi keterangan adalah meragukan. Mahkamah ada mencatat demeanour Tertuduh semasa dia memberi keterangan dalam nota prosiding menurut s.271 KTJ. (emphasis added)

(9) It was of course unfortunate that the obvious mistake was not brought to the attention of the learned High Court Judge but given the clear pronouncement made by him above, what was recorded in the notes of proceeding, and we stressed here again, was an obvious typographical mistake. It was not, with respect to learned counsel a case of two conflicting versions of His Lordship’s findings upon which the benefit of the doubt must be given to the appellant.

(10) With regard to the contention of learned counsel that there was a break in the chain of evidence, it was based on the evidence of the Investigating Officer and that of Customs Officer Rasyid bin Ahmad (since deceased) who guarded the appellant at the 16 Hospital and who witnessed the defecation of the 12 pills on 30/6/2012 at 11.05 am and then another 10 pills at 1.30 pm. His witness statement was tendered as ExP67 at the trial and his police report (ExP68). The pills were labelled as B25 to B36 and B37 to B46 by Rasyid who also informed the Investigating Officer about the pills. The alleged break was premised on the time that Rasyid signed on the seizure list (ExP9) at 11.15 am on 30/6/2012 whereas the Investigating Officer signed it at 12.45 pm on the same day. The seizure list did not state the time of handing over of the 22 pills by Rasyid to Investigating Officer but which given the police report that Rasyid made and his witness’s statement, that omission could not be fatal to the prosecution case. As for the lapse of time of slightly more than an hour as stated earlier, with respect to learned counsel, that cannot constitute a break in the chain of evidence for it would be grossly unfair to place such a onerous burden on the prosecution to account for every minute that the drug was in their possession. Furthermore, in this case the Investigating Officer clearly said in his evidence that before the 22 pills were handed over to him by Rasyid, the pills were marked by Rashid and after they were handed over to him, he had also signed on them. Photographs of the exhibits which show the markings and signatures can be 17 seen at page 39 and pages 43 to 44 of Volume 3 of the Appeal Record. The Investigating Officer also testified that after receiving the exhibits they were kept in the locked steel cabinet at his office which was only accessible to him. Given these evidence, there is just no merit in the issue raised.

(11) Lastly, on the issue of the raising of the presumption, granted that the accused never tried to escape and was cooperative according to PW15 and PW16, with the former even agreeing that maybe the appellant appeared anxious (“gelisah”) because he was in pain, but the raising of the presumption was fully justified because the drug was found in the appellant’s stomach and therefore he was clearly in full custody and control of the same. We fully agree with the learned High Court Judge that his defence has failed to rebut that presumption under section 37(d) on account of its sheer improbability as stated earlier and there was not a single reasonable doubt raised that his act of carrying the drugs of such a huge quantity in his stomach all the way from Nigeria amounts to trafficking for obviously too it was not for his own consumption. As said by Lord Diplock said in Ong Ah Chuan v Public Prosecutor (1981) 1 MLJ 64, 18 “As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them, and the more convincing the evidence needed to rebut it.” This same inference was raised by this court in Hossein Shakeri v Public Prosecutor (2014) 3 MLJ 292 where the same modus operandi to bring drugs into the country was used by the appellant in the said case. This was what this court said: “[9] The facts of the present case revealed that all the three appellants did not deny that they swallowed the capsules of drugs, which were found in their abdomens. They did not say that they were forced to swallow them and did not deny that they swallowed them voluntarily. The amount of drugs found in the abdomens of each of the appellants is too large for a case of own consumption.” It is also worth mentioning here that in paragraph 11 of the said judgment, this court noted 3 other cases where the same modus 19 operandi was similarly employed in that the drugs were also found in the abdomens of the appellants. These 3 cases are:

(ii) Kasanda Emmanuel v Public Prosecutor [2013] 2 MLJ 833;

(iii) Tunde Apatira & Ors v Public Prosecutor [2001] 1 MLJ 259.

(12) Based on the considerations above, the appeal was dismissed and the conviction and sentence of the High Court affirmed. Signed. RHODZARIAH BINTI BUJANG Judge Court of Appeal Malaysia Putrajaya Date: 9 April 2019 Note: This copy of the Court’s Grounds of Judgment is subject to editorial revision. 20 Parties appearing: For the Appellant: Encik Muhammad Fairuz bin Ahmad Encik Dir Kheizwan bin Kamaruddin Tetuan Fairuz For the Respondent: TPR Tuan Nik Syahril bin Nik Ab Rahman Jabatan Peguam Negara Cases Referred to:

1. Parlan Dadeh v Public Prosecutor (2009) CLJ 717;

2. Isa bin Mohamad v Public Prosecutor (2016) 4 CLJ 113;

3. Emmanuel James Kalu v Public Prosecutor (2017) 1 LNS 385;

4. Public Prosecutor v Norzilan bin Yaacob & Anor (1989) 1 MLJ 442;

5. Kamarul Fakaruddin Mohamed v Public Prosecutor (2013) 7 CLJ 636;

6. Ong Ah Chuan v Public Prosecutor (1981) 1 MLJ 64;

7. Hossein Shakeri v Public Prosecutor (2014) 3 MLJ 292.