Napalai Narapattarawong v Public Prosecutor (B-05(M)-483-10/2017)

The appellant, a female Thai national, was charged and tried in the High Court at Shah Alam with an offence of trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act, 1952 (‘the Act’). The charge reads as follows: “Bahawa kamu pada 24.9.2013 jam lebih kurang 5.55 petang, di dalam bilik nombor 214, Hotel The Younic, No. 42, Jalan 2, Bandar Baru Salak Tinggi, Sepang, dalam Daerah Sepang, di dalam Negeri Selangor, telah mengedar dadah berbahaya sejumlah berat 322.03 gram Cocaine dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

At the conclusion of the trial, the learned Judicial Commissioner (‘learned trial judge’) found the appellant guilty and convicted her on the said charge. The appellant was thus sentenced to the mandatory death penalty as mandated under section 39B(2) of the Act.

Aggrieved with the conviction and sentence, the appellant appealed to this Court. We heard the appellant appeal on 26.8.2019, wherein at its conclusion, we unanimously dismissed it. We now give the reasons for our dismissal. The prosecution’s case in brief [4] Brief facts of the prosecution’s case had been well encapsulated in the learned trial judge’s judgment. We reproduce briefly the important facts just for the purpose of the disposal of the appeal. Criminal Appeal No: B-05(M)-483-10/2017 3

Acting on information earlier received, on 24.9.2013 at about 5.55 p.m., Inspector Mohd Farizal bin Jamaluddin (PW2) led a team of narcotics police officers from Bukit Aman to conduct a raid at room No. 214, Younic Hotel at No. 42, Jalan 2, Bandar Baru Salak Tinggi, Sepang. On confirming with hotel receptionist, Mohd Zakhwan bin Yahya (PW4) that one Napalai was a guest in the said room 214, PW2 approached the hotel manager, Alex Yiek Jie (PW1) to view the hotel CCTV recording. Thereafter the team went up to the second floor where room 214 was located. At the request of PW2, the hotel cleaner, one Nor Radziah binti Yunus knocked on room

The appellant opened the door. [6] PW2 identified himself and entered the room. Whereupon, the appellant walked to the bed and sat on it, cross legged. PW2 and his team than proceeded to search the room. PW2 went on to pick up a luggage bag on the floor and placed it on the bed. In the presence of the appellant, PW2 opened the bag and found it to contained clothing. PW2 took out the clothing one piece at a time and laid them on the bed. Nothing incriminating were found in the bag. PW2 then noticed that the appellant had taken one of her garments that was on the bed and placed it on her lap. [7] This aroused PW2 suspicion and PW2 repeatedly instructed the appellant to get off the bed but the appellant refused and ignored him. PW2 then instructed woman Corporal Alia binti Alwi to conduct a body search on the appellant. The appellant jumped off from the bed and uttered in English ‘These are not mine, you put it here, that is yours’. [8] When the appellant got off the bed, PW2 observed a white plastic bag (P19B) and an object in the shape of a large capsule (P18) at the spot Criminal Appeal No: B-05(M)-483-10/2017 4 where the appellant had been seated. Inside the plastic bag (P19B), PW2 found 5 packages wrapped in aluminium foil with clear plastic over it (P19C 1-5). The large capsule (P18) was also wrapped in aluminium foil and clear plastic. Upon checking, PW2 discovered the capsule and the 5 packages each to contained white powder substance suspected to be dangerous drugs. [9] PW2 then put the appellant under arrest and together with all the exhibits confiscated, were taken to Sepang Police Headquarters. PW2 prepared a search list and lodged a police report before handed over the appellant and the exhibits to the investigating officer, Inspector Amrin bin Mohamad Arif (PW5). [10] On 27.9.2013, PW5 sent all the exhibits suspected to be dangerous drugs to the Chemistry Department for analysis. The chemist, Dr. Vanitha Kunalan (PW3) who had received the exhibits, confirmed that the white powder substance contained in P18 and P19C 1-5 which she received from PW5 were Cocaine with a combined weight of 322.03 grammes. They were the subject matter of the charge under appeal before us. PW3 also confirmed that Cocaine is listed under the First Schedule of the Act. PW3’s Chemist Report was tendered and marked as P14, which can be found at page 38 of the Appeal Record, Volume 3. Findings of the learned trial judge at the end of the prosecution’s case [11] The learned trial judge had considered and accepted the evidence of PW3 on the analysis undertaken by the witness as to the type and weight of the drugs, subject matter of the charge. Learned trial judge satisfied that Criminal Appeal No: B-05(M)-483-10/2017 5 there was no break in the chain of evidence to the drugs exhibits produced and identified by the prosecution’s witnesses in Court. [12] As for the element of possession, the learned trial judge accepted the testimony of PW2 that the impugned drugs were found on the bed concealed by the appellant by sitting on the impugned drugs. The appellant was sole occupant of the room 214. Learned trial judge relied on the conduct of the appellant in concealing the drugs underneath her on the bed to find mens rea possession on the part of the appellant of the impugned drugs. [13] As for the element of trafficking, the learned trial judge invoked the statutory presumption under section 37(da)(ix) of the Act based on the weight of the impugned drugs involved which is more than 40 grammes of Cocaine to trigger the statutory presumption. [14] After being satisfied that all the element of the charge had been established, the learned trial judge held that the prosecution had proven a prima facie case against the appellant. Thus, the appellant was called upon to enter her defence on the charge as preferred. The Appellant’s Defence [15] The appellant elected to give evidence under oath. The appellant was the sole witness for the defence. In essence, the appellant deny that the drugs found in room 214 belong to her and that the drugs could have been left by the guest who had checked out before she entered the room. The appellant alleged that the police had fabricated evidence to implicate her with the drugs. Criminal Appeal No: B-05(M)-483-10/2017 6 [16] The rest of the appellant evidence had been summarized by the learned trial judge in the following: “31. I shall now refer to her evidence in detail. She said she lived in Bangkok and worked as a traditional masseur. She love travelling and this was her first overseas trip. She flew to Moscow and from there to Brazil, and thereafter took the flight to Kuala Lumpur. She came to Kuala Lumpur as her friend had informed her that she could earn money here and planned to work as a masseur.

On her arrival at KLIA, her black trolley luggage bag and handbag were scanned and no incriminating items were found. She boarded a taxi at the airport and sought the assistance of the taxi driver to take her to the nearest hotel and was taken to Younique hotel at about 6 pm. The hotel receptionist told her that only room 214 was available and asked the hotel cleaner to escort her there. However, instead of taking her straight to room 214, the cleaner lady asked her to wait at room 213 as the guest in room 214 had just checked out and the room was being cleaned. Both rooms were opposite each other.

Continuing with her evidence, the accused said about 10 to 15 minutes, she was taken to enter room 214. About 2 minutes after entering room 214, there was a knock and she opened the door thinking it was the hotel cleaner, but a group of people barged in and proceeded to search the room and her luggage bag and handbag but found no drugs. She was standing near the bed throughout the time the police were in the room and no drugs were shown to her. She denied that she had sat on the drugs as alleged by Inspector Faizal. The police seized her handbag and luggage bag but these items were never returned to her as alleged by the Investigating Officer. The accused stated that she had about 1600 to 1800 USD in her handbag. Criminal Appeal No: B-05(M)-483-10/2017 7

Under cross examination, the accused denied that she had placed the drugs on the bed and had tried to conceal it by sitting on top of it. She further denied that she had accused the raiding team of planting the drugs on the bed when they discovered it. The accused denied any knowledge of drugs in the room.

Under further cross examination, the accused was asked to explain the reason she needed to come to Kuala Lumpur to look for a job as she still had with her a substantial amount of cash amounting to 1800 USD after returning from Moscow and Brazil. She proffered no explanation save to explain that it was her savings. It was suggested to her that her claim that she had come to Malaysia to look for a job was untrue as by her own admission she was earning very well as a masseur in Bangkok.” [17] After considering the appellant’s defence the learned trial judge found that the appellant had not succeeded in raising any reasonable doubt on the prosecution’s case. The learned trial judge also found that the appellant had failed to rebut the statutory presumption of trafficking under section 37(da)(ix) of the Act on a balance of probabilities. The learned trial judge was satisfied that the prosecution had proven beyond reasonable doubt the charge of trafficking against the appellant as per the charge. [18] The learned trial judge analysis of the defence version can be found at paragraphs 36 - 41 of her judgment which merit reproduction below: “36. The Court at the end of the defence case was required to examine all the evidence presented in this case to determine whether the accused had rebutted the presumption of trafficking and created a reasonable doubt in the prosecution’s case. It is fundamental that in a criminal trial it is not for the defence to prove anything and that all Criminal Appeal No: B-05(M)-483-10/2017 8 that is required of it is to tender an explanation that is reasonable and probable and which casts a doubt either as to the truth of the prosecution case or as to the guilt of the accused.

There were two conflicting versions here. First, the prosecution’s version that the drugs were found on the bed. The accused had sat on the drugs to conceal it from the police. Next, the defence version that no drugs were found on the bed. The drugs recovered from the room had been left by the guest who had checked out just before she entered it.

It goes without saying that if I believed the version given by Inspector Faizal, then the defence of the accused must necessarily fail, for on that version, it was clear that it was the accused who had brought the drugs into the room. I was completely satisfied that the Inspector Faizal was a witness of truth. He was subjected to a lengthy cross-examination by counsel and yet remained unshaken and unbroken.

The accused’s version of the fact defied credulity. The police had no reason to falsely implicate the accused with the drugs considering that and she just arrived in Kuala Lumpur and checked into room

Having watched Inspector Faizal give evidence, I did not think he was the sort of man who would concoct evidence. I accepted his evidence that the accused had falsely accused the raiding team of planting the drugs on the bed when they discovered it.

The accused on the other hand, did not inspire confidence as a witness of truth. During the cross examination of Inspector Faizal, it was put to him by counsel for the accused that there was no luggage bag in the room and his testimony about the accused having taken a garment to cover her lap was therefore a fabrication. It would be reasonable to infer that these questions would have been put to Inspector Faizal on the basis of instructions to that affect recorded Criminal Appeal No: B-05(M)-483-10/2017 9 from the accused. However, contrary to her instructions to counsel, the accused in her evidence accepted that there was a luggage bag in the room. It was unclear as to why Inspector Faizal’s evidence on this issue was challenged at the first instance. The fact that the accused acknowledge there was a luggage bag in the room rendered Inspector Faizal’s version of the facts more credible and reliable.

There were many aspects of the accused’s evidence which were unclear and cast doubt upon the accuracy of her account of her events. She claimed that the drugs were not seized from the bed and she was never shown the drugs. But, never indicated where the police found the drugs. If indeed the drugs had been left in the room or on the bed by the earlier guest, the accused would have certainly noticed it when she entered the room.” [19] The appellant was thus convicted and sentenced to suffer the mandatory death penalty under section 39B(2) of the Act. Hence, the appellant’s appeal before us. The Appeal [20] Before us, learned counsel for the appellant posited the following three (3) grounds of appeal:

Nothing incriminating found in the appellant’s luggage bags when they were scanned at the airport;

The appellant was put into Room No. 213 before been transferred into Room No. 214; and

PW2 not a truthful witness. Criminal Appeal No: B-05(M)-483-10/2017 10 Our deliberation and decision [21] The crux of the appellant’s defence was that she had no knowledge of the drugs, the drugs not belong to her, the drugs were not found on the bed but was recovered from the room which had been left by the guest who had checked out just before she entered it. Finally, the appellant case was that the police (PW2) fabricated evidence to implicate her with the drugs. The appellant emphasized that she was given a ‘clean bill’ at the airport. Learned counsel argued that the drugs were not brought by the appellant into the said room No. 214. [22] With due respect, we disagree with the learned counsel’s submission. The fact that the appellant was given a ‘clean bill’ at the airport does not ipso facto the drugs do not belong to her. There are many explanations why the drugs were not detected at the airport. Likewise there are many possibilities how the drugs came into appellant possession before she checked in into the hotel room. We agreed with learned Deputy Public Prosecutor submission that what is more important and material was that at the time of arrest inside room No. 214, the appellant was found in possession of the impugned drugs. [23] The appellant alleged that the drugs were planted and PW2 fabricated his evidence by saying the drugs were found on the bed and she sat on it. The learned trial judge who had audio-video advantage and who had observed demeanour of PW2 while giving evidence was completely satisfied that PW2 was a witness of truth. We agreed with the learned trial judge finding that there was no reason for PW2 to falsely implicate the appellant with the drugs. Learned trial judge accepted the evidence of PW2 Criminal Appeal No: B-05(M)-483-10/2017 11 that the appellant sat on the drugs cross-legged on the bed and put some clothing on her laps to hide the impugned drugs. [24] The appellant alleged that she was first given Room No. 213 eventhough she supposed to be given Room No. 214. This does not change the fact that when PW2 came in, the appellant was already in Room No. 214 where the drugs were found. The appellant further said she was inside Room No. 214 just for 2 minutes before PW2 came in. [25] The appellant version cannot be true as witness PW4 in his uncontroverted evidence that the appellant was given access card to Room No. 214 and immediately the appellant went up to the room. According to PW4, PW2 only came to the hotel about one hour later, not within 2 minutes as alleged by the appellant. The material part of PW4 evidence can be found at page 23 of the Appeal Record, Volume 2 as follows: “Saya daftarkan dia masuk dengan cara saya ambil passport dia dan key in semua maklumat di dalam sistem hotel. (Saksi dirujuk P4 (a) – passport Thailand atas nama Napalai Narapattarawong). P4 (a) dicamkan Selepas saya daftarkan dia, saya beri kunci bilik berbentuk kad dan dia terus naik ke tingkat atas. (Saksi dirujuk P7 (a) – kad akses Youniq Hotel). P7 (a) dicamkan Bayaran dibuat terus semasa dia mendaftar. Saya tidak pasti samada saya ada beri resit atau tidak kepada dia, saya sudah lupa. Resit disediakan oleh saya. (Saksi dirujuk P6 (a) – resit Hotel Youniq). P6 (a) dicamkan Criminal Appeal No: B-05(M)-483-10/2017 12 Selepas itu perempuan itu naik ke tingkat atas. Tidak sampai 1 jam kemudian ada seorang datang kepada saya memberitahu dia Inspektor Faizal. Dia bertanyakan kepada saya ada atau tidak seorang perempuan yang bernama Napalai yang check-in di hotel ini. Kemudian saya check sistem, memang ada. Tetamu perempuan saya daftarkan tadi bilik dia bernombor 214. Saya masih boleh cam lagi tetamu perempuan yang bernama Napalai ini. Dia berada di Mahkamah pada hari ini, sedang duduk di kandang tertuduh. OKT dicamkan.” [26] Another part of appellant’s evidence that attracted our comment was when she said that the drugs could be left inside the room by the previous guest. This is just a mere conjecture without truth. The drugs, 322.03 grammes of Cocaine were highly valuable. It is illogical for those who own the things would simply left it in the room just like that. Conclusion [27] Having regard to the totality of the evidence, the surrounding circumstances and the probabilities of the case, it was our finding that the trafficking charge had been proven beyond reasonable doubt against the appellant. [28] For all the reasons above stated, we hold that there is no merit in the appeal. The conviction is safe and amply supported by the evidence on record. Therefore, the appeal is dismissed and the conviction and sentence of the High Court was affirmed. Criminal Appeal No: B-05(M)-483-10/2017 13 Dated: 24 September 2019 signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Counsel For the Appellant: V. Samynathan Messrs V. Samynathan & Co No. 50A-1, Jalan Kemuja Bangsar Utama 59000 Kuala Lumpur For the Respondent: Samihah bte Rhazali