Mohamad Zulazwan Bin Saali v Pendakwa Raya (B-05(M)-54-02/2020)

Mohamad Zulazwan Bin Saali

Mahendara Rao a/l Surunarayana] DIDENGAR BERSAMA DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO. B-05(M)-55-02/2020 S/N eko8n/d//U6nQl0ElDmpWQ ANTARA MAHENDARA RAO A/L SURUNARAYANA … PERAYU (NO. K/P: 790101-10-5055] LAWAN PENDAKWA RAYA … RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya Di Shah Alam

Mohamad Zulazwan Bin Saali

Mahendara Rao a/l Surunarayana] KORAM: VAZEER ALAM BIN MYDIN MEERA, HMR RAVINTHRAN PARAMAGURU, HMR HASHIM BIN HAMZAH, HMR S/N eko8n/d//U6nQl0ElDmpWQ JUDGMENT Introduction [1] The appellants were charged with the offence of trafficking a large quantity of methamphetamine at the Kuala Lumpur International Airport 2 (KLIA 2). The appellant in Appeal B-05(M)-54-02/2020 is Mohamed Zulazwan bin Saali (Zulazwan) whereas the appellant in Appeal B-05(M)- 55-02/2020 is Mahendara Rao A/L Surunarayana (Mahendara). Zulazwan and Mahendara were the first and second accused persons before the High Court. At the conclusion of the trial both appellants were convicted of the offence and sentenced to death and hence these appeals. We heard their respective appeals together. [2] We set out the charge below for ease of reference: “Bahawa kamu bersama-sama pada 6/11/2017, jam lebih kurang 7.25 petang di Mesin No. 5 di Pelepasan Domestik, Aras 3, KLIA 2 di dalam daerah Sepang, dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 1415.2 gram, dan dengan itü kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan”. Summary of case for prosecution [3] The prosecution called a total of ten witnesses. The crucial witness in respect of the element of possession against Zulazwan was SP5 (Mhd Norazlan bin Abdul Aziz). He is an auxiliary policeman. SP5’s duty was to S/N eko8n/d//U6nQl0ElDmpWQ scan passenger bags through the X-Ray machine at the Domestic Departure Lounge of KLIA2. [4] At the material time, he scanned an Elegant brand black suitcase at Scanner Machine No. 5. He noticed suspicious images on the screen. He asked for the owner of the suitcase. Zulazwan stepped forward and said that it is his suitcase. He was asked to open and remove its contents. After Zulazwan removed a plastic bag containing bread, SP5 noticed a Milo box and a Koko Kruch box inside the suitcase and requested that they be emptied. Unexpectedly, Zulazwan walked away, leaving the suitcase and its contents behind. He was subsequently arrested when he queued up again at Scanner Machine No. 6. [5] He was brought to SP5, who continued with the inspection of the black suitcase in question. Zulazwan removed a transparent plastic bag from the Milo box. It contained a white crystalline substance. SP5 said Zulazwan became nervous and attempted to flee again but was restrained with the assistance of another auxiliary policeman. He was then handed over to the Police Narcotics Division at KLIA 2 where inspection of the suitcase continued in the presence of ASP Mohamad Syairazi bin Mohamad Shapuzi (SP7). The police also found white crystalline substance in the Koko Kruch box. SP7 suspected that the crystalline substance was methamphetamine. [6] Zulazwan told SP7 that the Milo and Koko Krunch boxes had been given to him earlier in the day by an Indian man at a petrol station near the airport. He was told that the boxes contained vehicle spare parts namely that of a Vespa that was ordered by someone named Dahlan. S/N eko8n/d//U6nQl0ElDmpWQ Zulazwan was going back to Miri that evening. SP7 requested Zulazwan to call the Indian man to come to the airport. Zulazwan was asked to feign that he missed his flight and needed money to purchase another ticket. [7] When Mahendara arrived at the airport with two other individuals, the police arrested all of them. The police did not find any incriminating substance on Mahendara or on the other two individuals. However, the police discovered a plastic packet on the dashboard of the vehicle they had arrived in. It contained ketamine. The crystalline substance found in the Milo and Koko Krunch boxes was sent to the Chemistry Department for analysis. The chemist (SP6) confirmed that the crystalline substance found in both boxes was methamphetamine with a total weight of 1415.4 grammes. That is the case for the prosecution in a nutshell. High Court finding at end of case for the prosecution [8] The learned Judicial Commissioner considered whether there was evidence to support the following elements of the charge:

That the drug that was seized was methamphetamine;

That Zulazwan and Mahendara were in possession of the drugs;

That they were trafficking the drugs;

Common intention. [9] The learned Judicial Commissioner considered the evidence of SP5 who told the court that prior to arrest, Zulazwan admitted being the S/N eko8n/d//U6nQl0ElDmpWQ owner of the black suitcase in question in which the drugs were found. No one else apart from Zulazwan handled the suitcase in question at the material time. He also considered the evidence that the DNA material taken from the towel found in the suticase matched the DNA profile of Zulazwan. Since Zulazwan attempted to run away during the inspection at the Departure Lounge, the learned Judicial Commissioner said that it can be inferred that he knew that his suitcase contained drugs. [10] The learned Judicial Commissioner also invoked the presumption of possession from custody under section 37(d) of the Dangerous Drugs Act 1952. This presumption was invoked against both appellants, although Mahendara was not present at Scanner Machine No. 5 when the drugs were discovered. [11] In respect of the element of trafficking, the learned Judicial Commissioner applied the broad definition of “trafficking” in section 2 of the Dangerous Drugs Act 1952 which includes “carrying”. As there was evidence that Zulazwan carried the suitcase that contained methamphetamine at the Departure Lounge en route to Miri, the learned Judicial Commissioner found that there was direct evidence of trafficking. [12] As for the case against Mahendara, the learned Judicial Commissioner considered the evidence of SP7. He said that according to Zulazwan, the Milo and Koko Krunch boxes were placed in his suitcase by Mahendara. Zulazwan was told that it contained vehicle spare parts. The learned Judicial Commissioner also had regard to the evidence of the closed-circuit television (CCTV) still images that showed the appellants leaving the airport area together and later returning with a black suitcase. S/N eko8n/d//U6nQl0ElDmpWQ The learned Judicial Commissioner concluded that this constituted evidence of common intention. [13] For the above reasons, the learned Judicial Commissioner found that the prosecution had established a prima facie case against the appellants and called for their defence. Both appellants elected to give sworn evidence. Defence of Zulazwan [14] He is from Sarawak. At the material time, he lived in Miri. On 3.11.2017, a friend of his by the name Dahlan requested him to collect a vehicle (Vespa) spare part from KLIA 2 and bring it back to Miri. Zulazwan was informed that sending the spare part via post might result in damage. Zulazwan agreed to Dahlan’s request. On 6.11.2017, Zulazwan met Shanmuga, who is an employee of Dahlan in Miri. Shanmuga provided Zulazwan with an Airasia return ticket to KLIA 2, a suitcase filled with clothes, and pocket money of RM150.00. [15] Following Dahlan’s instructions, Zulazwan flew to KLIA 2 that evening and awaited a call on his handphone. Mahendara contacted him and arranged to meet him at Door No. 2, on the third level of KLIA 2. Zulazwan was invited to join him for a smoke and a meal. Zulazwan told the court that Mahendara took his suitcase and placed it in the boot of his car. They then proceeded to a nearby petrol station. Upon arrival, Zulazwan left the car to buy bread while Mahendara remained in the car. S/N eko8n/d//U6nQl0ElDmpWQ [16] When Zulazwan returned to the car, Mahendara told him that he had placed the vehicle spare part inside his suitcase. He then drove him back to the airport. Upon arrival, he took Zulazwan’s suitcase from the boot and handed it to him. Zulazwan proceeded to the Departure Lounge and queued at the security clearance counter. After his suitcase was scanned, he was asked about the suitcase and ordered to open it. No caution was administered to him. At that moment, Zulazwan decided to go to the toilet. When he returned, he queued up again unperturbed, because he was not aware that there were any drugs inside his suitcase. [17] Upon opening the suitcase at the request of the security officers, he noticed a Milo box inside it. He was shocked and became nervous because it contained a crystalline substance instead of a vehicle spare part. He told the security officers that the Milo box did not belong to him. He explained that Mahendara was supposed to have put a vehicle spare part inside his suitcase. He would not have stood in line at the security clearance counter if he had known that it contained drugs. SP7 instructed him to call Mahendara, pretending he had missed his flight and requesting another ticket. He followed instructions, and as a result, two individuals, whom he never met before, and Mahendara came to meet him at the airport. They were all arrested by the waiting police. Thus, his defence was that he had no intention to traffic the drugs in question, as he had no knowledge of what Mahendara had put inside his suitcase. Defence of Mahendara [18] He worked as a taxi driver with an income of RM100 to RM300 a day. The vehicle he used was a red Proton Pesona bearing registration S/N eko8n/d//U6nQl0ElDmpWQ number HWE 4374. On the day in question, he picked up two passengers in the Bukit Bintang area around 9.20 p.m. and drove them to KLIA 2. The two passengers asked him to wait while they went inside the airport. About 10 minutes later, the police ordered him out of his taxi and handcuffed him. He said the police found a small quantity of drugs in his taxi that was meant for his personal consumption. He was brought to the airport police station, where he noiced that the two passengers he had ferried to the airport had also been arrested. He also noticed a Malay man, whom he never met before, had been arrested. [19] Mahendara denied driving a silver Proton Wira car to KLIA 2 as claimed by Zulazwan. He said that he only drove his taxi. He denied meeting Zulazwan earlier in the day or putting drugs inside his suitcase. However, he admitted that the ketamine that the police found in his car belonged to him. Decision of High Court at end of case [20] The learned Judicial Commissioner directed himself that Zulazwan and Mahendara must be acquitted if they rebutted the presumption of possession on a balance of probabilities or raised a reasonable doubt regarding the trafficking element of the charge. [21] In respect of the case against Zulazwan, the learned Judicial Commissioner addressed the evidence that he was seen by the auxiliary policeman (SP5) carrying the suitcase that contained the drugs in question. Zulazwan was found to have custody of the drugs, and for this reason, the presumption of possession was invoked at the close of the S/N eko8n/d//U6nQl0ElDmpWQ prosecution’s case. The learned Judicial Commissioner disbelieved Zulazwan, who claimed that he thought the suitcase contained a vehicle spare part. His Lordship found it improbable that Zulazwan did not examine his own suitcase and was thus an innocent carrier. Moreover, the DNA profile developed by the chemist (SP4) from genetic material found on the towel in the suitcase matched that of Zulazwan. The fact that Zulazwan ran away during inspection of the suitcase by the auxiliary policeman (SP5) was also considered by the High Court. His Lordship said that it can be inferred that he had knowledge of the contents of the suitcase. However, the learned Judicial Commissioner also invoked the presumption of possession from custody. As Zulazwan carried a large quantity of drugs at the airport on his way to Miri, the learned Judicial Commissioner held that his actions fell within the definition of trafficking under section 2 of the Dangerous Drugs Act 1952. For the above reasons, he found that Zulazwan did not rebut the presumption of possession on a balance of probabilities and that he did not raise a reasonable doubt on the whole of the prosecution’s case. [22] As for the case against Mahendara, learned Judicial Commissioner relied heavily on the evidence of Zulazwan to convict him. He considered Zulazwan’s defence that Mahendara met him at the airport when he arrived from Miri earlier in the day and brought him to the nearby petrol station. Zulazwan said that Mahendara told him that he had put a vehicle spare part in his suitcase. His Lordship also took into account the evidence of SP7 who said that Mahendara came to the airport with two other individuals after Zulazwan called him, pretending that he missed his flight. The discovery of ketamine in Mahendara’s car was also deemed relevant. His Lordship disbelieved Mahendara’s testimony that he had S/N eko8n/d//U6nQl0ElDmpWQ nothing to do with the methamphetamine that was recovered from Zulazwan’s suitcase. For these reasons, the learned Judicial Commissioner held that Zulazwan and Mahendara had common intention in trafficking the drugs in question. In the result, he convicted both Zulazwan and Mahendara and sentenced them to death. Issues in the appeal [23] Counsel for Zulazwan raised the following issues:

That there was no evidence that Zulazwan was in possession of the suitcase and that the learned Judicial Commissioner failed to consider that SP5 and SP7 did not administer caution on Zulazwan;

That the learned Judicial Commissioner erred in rejecting the defence of innocent carrier;

That there was no evidence of common intention between

That the learned Judicial Commissioner did not consider the fact that the prosecution failed to challenge the defence of Zulazwan and Mahendara. [24] Counsel for Mahendara, on the other hand, argued that his client should not have been called to enter his defence in the first place. He submitted that Mahendara was arrested over three hours after the arrest of Zulazwan. He was not at the security clearance counter of the Departure Lounge with Zulazwan. He was arrested after he came to the S/N eko8n/d//U6nQl0ElDmpWQ airport with two passengers in his taxi. The learned Judicial Commissioner relied on CCTV still images that purportedly showed Zulazwan going into a car much earlier. However, the CCTV still images were blurry and do not show clearly that Mahendara was inside the car. Appeal of Zulazwan [25] We shall first address the issues pertaining to the appeal of Zulazwan. Custody of suitcase [26] It must be recalled that learned Judicial Commissioner invoked the presumption of possession from custody against Zulazwan. The main argument of counsel for Zulazwan was that the prosecution failed to prove possession. His reasons are as follows. He argued that when Zulazwan was arrested by SP5, the suitcase was on the table near the scanner machine and not with him. The related argument is that the admission of Zulazwan to SP5 that the suitcase belonged to him is not admissible as no caution was administered. Counsel for Zulazwan also argued that SP5 failed to identify his client. [27] We see no merit in the above grounds for the following reasons. The learned Judicial Commissioner had good grounds to make a finding that the appellant was in possession of the suitcase. SP5 testified that when he saw suspicious content on the scanner machine monitor screen, he enquired generally about the owner of the suitcase. Zulazwan stepped forward and admitted that it belonged to him. It must be noted that S/N eko8n/d//U6nQl0ElDmpWQ Zulazwan was not arrested that time. Neither was Zulazwan asked if he would confess to any wrongdoing. No drugs were mentioned. He merely admitted to SP5 that the suitcase belonged to him. The suitcase had not even been inspected at that time. Thus, the argument that the statement is not admissible because it was a confession elicited without the necessary caution under section 37B of the Dangerous Drugs Act 1952 is without merit. However, during the inspection process, Zulazwan left the area. He was arrested when he queued up again at Scanner Machine No.

This time, he was specifically asked whether he was the owner of the suitcase. As he was under arrest by then, his statement would not be admissible especially in relation to the contents of the suitcase. However, it must be noted that SP5 very clearly said that he was owner of the suitcase on the earlier occasion when the former enquired from the passengers near the scanner machine about the owner of the suitcase in question. In our view this evidence was correctly admitted by the learned Judicial Commissioner. [28] Counsel for Zulazwan also raised the point that SP5 could not identify his client when he queued up for a second time at Scanner no. 6. It was suggested that SP5 and his colleague arrested the wrong person. This suggestion was refuted. SP5 agreed that he did not take a close look at Zulazwan during the initial encounter. However, he clarified that after Zulazwan fled, he promptly reported the incident to the Security Operations Centre whose staff reviewed the CCTV footage, identified the person who left the area during inspection and provided SP5 with a detailed description. As mentioned earlier, Zulazwan, was subsequently arrested when he came to Scanner No. 6. S/N eko8n/d//U6nQl0ElDmpWQ [29] Furthermore, the DNA test conducted on a towel taken from the suitcase in question proved that the profile developed from it belonged to Zulazwan. Counsel for Zulazwan suggested that his DNA stains from either skin cells or saliva got transferred to the towel when Zulazwan opened the suitcase for inspection. Although, the chemist (SP4) who conducted the examination said that DNA stains can be transferred easily depending on the length of time a person handles exhibits, she did not say that mere touching of the contents of the suitcase to remove the Milo box could have resulted in such a situation. There was no evidence either from SP5 that Zulazwan handled the towel for a period of time during inspection or used it in anyway. The evidence was that he opened the suitcase and he removed the Milo box and its contents. [30] For the above reasons, we find no merit in the submission that Zulazwan was not in custody of the suitcase when he attempted to get past the security clearance counter at the Departure Lounge. In the premises, the presumption of possession was correctly invoked by the learned Judicial Commissioner. Defence of innocent carrier [31] After defence was called, as we said earlier, Zulazwan did not deny that the suitcase in which the drugs were found belonged to him. He only said that no caution was administered on him and that he left to go to the toilet in the midst of the inspection. We note that at the material time he was not arrested. He said as follows in his witness statement:

Saya telah meletakkan beg saya di dalam kotak untuk diimbas. S/N eko8n/d//U6nQl0ElDmpWQ

Setelah itu saya telah dipanggil oleh polis bantuan di situ dan bertanyakan mengenai beg saya. Sebelum beliau bertanyakan kepada saya, tiada apa-apa kata amaran yang diberikan kepada saya.

Beliau telah mengarahkan saya untuk membuka beg tersebut dan saya telah di arahkan untuk mengeluarkan kotak tersebut.

Pada masa iitu saya terus beredar untuk mencari tandas di dalam kawasan perlepasan dan telah meningalkan beg tersebut di mesin pengimbas. (emphasis ours). [32] However, Zulazwan said that he thought that Mahendara had put a Vespa vehicle spare part inside when he was brought out of the airport area to a nearby petrol station. He told the same story to SP7 during interrogation immediately after arrest. [33] The learned Judicial Commissioner rejected the defence of innocent carrier. In our opinion, there is no merit in the argument of counsel for Zulazwan that the His Lordship erred in doing so. The defence of innocent carrier is frequently raised by accused persons who are caught with drugs in their possession. These accused persons would assert that they did not know that the bag they were asked to carry contained drugs. It may well be that in some cases, there is truth in this defence. It is the duty of the trial court to thoroughly examine each case on its own facts to determine the applicability of the defence. In Munuswamy Sundar Raj v PP [2016] 1 CLJ 357, the Federal Court said as follows in respect of the duty of the trial court: [11] In order not to throttle the discretion of judges, let alone no cases are similar, we are loath to lay down restrictive guidelines for courts to consider prior to deciding whether the defence of innocent carrier can prevail. We leave it to the better judgment of the presiding judge. S/N eko8n/d//U6nQl0ElDmpWQ [34] However, wilful blindness on the part of accused persons as to what they carried would defeat the defence of innocent carrier. In other words, if the circumstances surrounding the case indicate that the accused persons knew or should have known the contents of the items they were tasked with carrying, or if they consciously chose to remain uninformed when they ought to have inquired, the defence will fail. In the well-known case of Public Prosecutor v Herlina Purnama Sari [2017] 1 MLRA 499, the Federal Court, speaking through Raus Sharif PCA (later CJ), said 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. [35] The learned Judicial Commissioner gave his reasons in paragraphs [135] to [148] of his grounds of judgment why he found that Zulazwan exhibited wilful blindness as to the contents of the suitcase and was therefore ineligible to avail the defence of innocent carrier. In summary, his reasons are as follows. The learned Judicial Commissioner noted that Mahendara, who was a stranger, had come to the airport to meet Zulazwan and deliver a Vespa spare for transportation to Miri. Zulazwan did not witness Mahendara putting said Vespa spare part inside his suitcase as he stepped out of the car to buy some food at the petrol S/N eko8n/d//U6nQl0ElDmpWQ station. Nevertheless, Zulazwan accepted Mahendara’s assertion that the Vespa spare part was already inside the suitcase without bothering to verify it for himself. Zulazwan had ample time and opportunity to do so as Mahendara left the airport after dropping him off to board the plane. The learned Judicial Commissioner also found it peculiar that Zulazwan was not at all curious whether the Vespa spare part, presumably a heavy or bulky object, was suitable to be placed inside his suitcase that contained his clothes. [36] We wholly agree with the reasons given by the learned Judicial Commissioner for finding that Zulazwan exhibited wilful blindness in respect of the contents his suitcase. As the learned Judicial Commissioner noted, it is improbable for anyone in Zulazwan’s position not to inspect the suitcase after entrusting it to a stranger for the purpose of placing an item inside. After all, the sole reason Zulazwan came from Miri to KLIA2 was to collect a Vespa spare part on behalf of Dahlan. Hence, it defies belief that Zulazwan would passively accept the word of Mahendara, a stranger, regarding the placement of the Vespa spare part inside the suitcase. He could have easily verified the assertion of Mahendara by simply opening the suitcase. Unless, of course, as the learned Judicial Commissioner inferred, Zulazwan already knew that there were drugs inside the suitcase. For the above reasons, we are of the opinion that the learned Judicial Commissioner did not err in rejecting the defence of innocent carrier as submitted by counsel for Zulazwan. S/N eko8n/d//U6nQl0ElDmpWQ Common intention [37] Counsel for Zulazwan argued that the learned Judicial Commissioner erred in finding that there was common intention between his client and Mahendara. Counsel for Mahendara similarly contended that there was no common intention between his client and Zulazwan in respect of the offence of trafficking the drug in question. Common intention under section 34 of the Penal Code provides for joint criminal responsibility (see the seminal Privy Council case of Mahbub Shah v King Emperor [1945] LR 72 IA 148). Thus, if one person commits the actual offence, another person may also be liable for the same offence if it is shown that the offence of was committed “in furtherance of the common intention of all”. [38] However, we fail to see how the argument that there was no evidence of common intention can assist the defence of Zulazwan as he is the primary offender according to the evidence led by the prosecution. On the contrary, lack of evidence of common intention should assist the defence of Mahendara. Zulazwan was arrested as he carried the suitcase that contained the drugs in question at the Departure Lounge. Mahendara was nowhere near the Departure Lounge. He was arrested because Zulazwan told SP7 that he thought that Mahendara had put a Vespa spare part inside his suitcase. The police failed to tender any evidence of observation that can suggest that Zulazwan and Mahendara acted in concert in furtherance of a common intention. In the premises, whilst we would agree with counsel for Zulazwan that the prosecution failed tender evidence of common intention, it is not a ground of appeal that can absolve Zulazwan of guilt. S/N eko8n/d//U6nQl0ElDmpWQ Alleged failure of prosecution to challenge defence of Zulazwan [39] We find no merit in this ground. Our perusal of the notes of proceedings shows that the prosecution cross-examined Zulazwan at length and challenged him in respect of his defence that he had no knowledge of the drugs in his suitcase. We reproduce below the concluding cross examination questions of the learned Deputy Public Prosecutor: : Sepanjang kamu duduk dalam kereta bersama dengan lelaki India ini, ada kamu bertanya namanya? : Tidak ada. : Langsung tidak ada berbual? : Dia cuma cakap sudah makan atau belum. Itu sahaja. : Setuju saya katakan bahawa semua keterangan yang kamu berikan hari ini adalah tidak benar? : Tidak setuju. : Setuju jika saya katakan bahawa kamu mereka-reka cerita yang kamu berikan hari ini? : Tidak setuju. [40] For the above reasons, we found no merit in all the grounds of appeal canvassed by counsel for Zulazwan. We found no appealable error and we found the conviction to be safe. We therefore unanimously affirmed the conviction of Zulazwan and dismissed his appeal. S/N eko8n/d//U6nQl0ElDmpWQ Appeal of Mahendara [41] As previously mentioned, Mahendara was nowhere near the drugs when it was discovered by the police. He was arrested when he came to the airport. His defence was that he came to the airport because he ferried passengers there. The prosecution’s case was that he came because of a phone call that he received from Zulazwan. In the premises, it was incumbent on the prosecution to tender compelling evidence linking him to Zulazwan and the drugs. However, no such evidence was provided. [42] The prosecution tendered evidence of CCTV still images of Zulazwan and another man who had come to fetch him at the airport earlier in the day. However, the prosecution witness (SP9) who tendered the photographs and the investigating officer himself admitted that the said photographs were quite blurry. Even in respect of the phone calls that Zulazwan allegedly made to Mahendara upon arriving in KLIA2, there were no call logs tendered despite the fact that their handphones were seized by the police. Thus, Zulazwan’s testimony is crucial in respect of the involvement of Mahendara. [43] Zulazwan told SP7 that “an Indian man” placed a Vespa spare part inside his suitcase. However, Zulazwan admitted during cross examination that he does not know the “Indian man’s name” since he never asked him. In court, Zulazwan also referred to “an Indian man”. However, he did not explicitly say that Mahendara who was present in court was that individual. In fact, it is telling that when Zulazwan was questioned by counsel for Mahendara, he said he never met Mahendara S/N eko8n/d//U6nQl0ElDmpWQ and denied that he was the “Indian man” he had referred to. The exchange between counsel for Mahendara and Zulazwan is as follows: : Adakah lelaki India itu OKT 2 yang datang memandu kereta Proton Wira silver dan datang mengambil kamu? : Tidak : Adakah kamu kenal OKT ini? : Tidak kenal. : Jadi, sebelum kamu ditangkap, kamu memang tidak pernah dan tidak kenal OKT ini? : Langsung tidak kenal. [44] Thus, Zulazwan’s court testimony cannot assist the prosecution to convict Mahendara. Even, if it could, as it would amount to accomplice evidence, the rule of prudence would require corroboration in the form of independent evidence. But as we said earlier there was none. [45] The learned Judicial Commissioner found that Mahendara acted in concert with Zulazwan in furtherance of a common intention to traffic the drugs in question. We disagreed with the learned Judicial Commissioner and as pointed out earlier there was no evidence of common intention between Zulazwan and Mahendara. In the premises, there was no evidence to link the drugs in the suitcase to Mahendara. Thus, we find merit in the submission of counsel for Mahendara that his client should not have been called to enter his defence in the first place. For the above reasons, we find the conviction of Mahendara to be unsafe. The appeal of Mahendara is allowed and we set aside his conviction and sentence. S/N eko8n/d//U6nQl0ElDmpWQ Conclusion [46] In conclusion, we dismissed the appeal of Zulazwan and affirmed his conviction and sentence by High Court. As for Mahendara, we allowed his appeal and set aside the conviction and sentence. SGD (RAVINTHRAN PARAMAGURU) Hakim Mahkamah Rayuan Malaysia Bertarikh: 4 Disember 2023 Peguam Cara: Bagi Rayuan No. B-05(M)-54-02/2020 Bagi Pihak Perayu: Änwar bin Abdul Rauf [Tetuan Anwar Rauf & Co.] Bagi Pihak Responden: Leo anak Saga Timbalan Pendakwa Raya Jabatan Peguam Negara S/N eko8n/d//U6nQl0ElDmpWQ Bagi Rayuan No. B-05(M)-55-02/2020 Bagi Pihak Perayu: Lim Woi Kang [Tetuan Rao & Kamal] Bagi Pihak Responden: Leo anak Saga Timbalan Pendakwa Raya Jabatan Peguam Negara S/N eko8n/d//U6nQl0ElDmpWQ