Naphaporn Tangjit v Pendakwa Raya (Q-05(M)-208-05/2017)

Naphaporn Tangjit, the accused, qua the appellant in this appeal is a Thai national. On 1.11.2015 around 9.00 p.m, the accused was found to have in her possession 1928.4 grammes of methamphetamine in six backpacks found in her checked-in luggage. The discovery was made at that material time in the office of the Royal Malaysia Customs Department situated at the arrival hall of Kuching International Airport (Kuching airport). The events which culminated with the accused’s arrest began on 1.11.2015 circa 9.00 p.m, when the accused who was on board Air Asia flight AK5228 from Kuala Lumpur enroute from Hong Kong to Kuching arrived at Kuching airport.

The prosecution’s narrative of the subsequent events appear sufficiently in the grounds of judgment of the learned trial judge which this Court, having perused through the evidence, is satisfied that it is correctly garnered by Her Ladyship from the evidence led by the prosecution. We shall now state the material facts of the case upon the accused’s arrival at Kuching airport for the purpose of this appeal. Customs Officer Mohd Naslan bin Mohd Nasron (PW5) at the relevant time was on duty with his team of officers comprising Customs Officer Ozie Emmaroziana bt Masidi (PW4), Customs Officer Si Kui Sian (PW6) and Customs Officer Maxmillian Adam (PW7) at the Arrival Hall of Kuching airport on 1.11.2015 and were in attendance for the flight that the accused was in. PW5 noticed a suitcase (Exhibit P6) which was not claimed on carousel C. After a passenger, later identified by PW5 as the accused, claimed it, he asked her to scan all her bags. PW4 was manning the scanner machine at that material time. She said when scanning the accused’s 3 bags, she noticed that the image of the content of Exhibit P6, the suitcase, was suspicious because it was greenish in colour. This she saw with PW5 who then directed PW6 to examine the suitcase.

PW5 was present when PW6 conducted the examination of the said suitcase. PW6 first saw children’s clothing and a few pairs of new lady’s shoes in the suitcase and after the accused removed them following her instruction, she saw “several new backpacks” still in plastic bags although initially she only saw two of those backpacks. When asked by PW6 about the items in the suitcase, the accused told her that they were sold by her in a market in Thailand. PW6 proceeded to examine one backpack (Exhibit P7(F)) whilst PW5 examined the other. She saw traces of glue at one of the bag’s compartment which had a zipper. When PW6 physically examined the back portion of the backpack she felt something hidden inside the sponge of its lining. After being informed by PW6 of the finding, the accused was directed by PW5 to scan the two backpacks and PW5 again saw something suspicious in the 2 backpacks whereupon the accused was asked to put back the two backpacks and the remaining four backpacks in the suitcase. The accused was then escorted with all her luggage to the Customs office at the airport to await the arrival of the team headed by Tan Sing Chai (PW9), who is the investigating officer of this case, from the Narcotic Section of the Customs Department whom PW5 had contacted after the discovery of the suspicious content of the backpacks.

PW9 arrived at the airport at about 11.00 p.m that night. PW9 confirmed the contents of the suitcase as described earlier, particularly the six backpacks. PW7 was tasked to check one of the backpacks, Pat Norbert (PW3) to take photographs of the exhibits as well as that of the 4 accused [Exhibit P11 (1-53)] whilst Gerry Singh (PW8) prepared the search list (Exhibit P19). It was PW7 who discovered the crystalline substance in a packet hidden inside the lining of the backpack which he examined. A preliminary test conducted by PW9 revealed the said substance to be methamphetamine. PW9 then brought the accused and her suitcase including the six backpacks to their Customs office at Jalan Matang, Kuching. The examination at the said office of the rest of the backpacks similarly revealed crystalline substance in transparent plastic packets hidden inside them. This is made manifest when PW9 told the court that all the 6 backpacks each had a transparent plastic packet containing crystalline substance. After it ended at 5.00 a.m the next day, PW9 put all the exhibits in an iron cabinet in his office, locked it and the door of his office before handing them to the storekeeper, Stephen ak Pina (PW2) for safekeeping.

The exhibits were only taken out on 4.11.2015 when photographs of the crystalline substance in the transparent plastic packets found in the six backpacks were taken. They were put in 6 separate brown envelopes marked by PW9 as A1(2) to A6(2) (Exhibit P31(1-6) and then placed in a box marked T (Exhibit P3), sealed and sent to the chemist, Hairunissa bt Mohd Anas Khan (PW1) for analysis. PW9 received them back from PW1 with the chemist report (Exhibit P4) on 15.12.2015 and kept them at the store.

PW1 gave evidence by way of a witness statement marked as WSPW1. In her chemist report, PW1 confirmed that on analysis, the crystalline substance found in the 6 crystalline plastic packets contained in total 1928.4 grammes of drug methamphetamine which is listed in the First Schedule to the Dangerous Drugs Act 1952 [Act 234]. 5

The accused was accordingly charged with trafficking in 1928.4 grammes of methamphetamine under section 39B Act 234. For completeness we set out the charge against the accused below – “Bahawa kamu pada 1 November 2015, lebih kurang jam 9.00 malam di Pejabat Unit Khas Pemeriksaan Penumpang, Jabatan Kastam Diraja Malaysia, Balai Ketibaan Lapangan Terbang Antarabangsa Kuching, di dalam Daerah Kuching, dalam Negeri Sarawak, telah didapati mengedar dadah berbahaya iaitu “Methamphetamine” seberat 1928.4 gram, dan dengan itu kamu telah melakukan suatu kesalahan dibawah seksyen 39B(1) Akta Dadah Berbahaya 1952 (Akta 234) yang boleh dihukum di bawah seksyen 39(B) Akta yang sama.”

Based on the above material evidence upon which the prosecution’s case was founded, the learned judge concluded with the following factual findings:

the suitcase (Exhibit P6) which was the accused’s checked-in luggage from Hong Kong contained the six backpacks where the drug methamphetamine was found concealed in the back linings of each of the backpacks;

it appears therefore that the accused had custody and control of the impugned drugs weighing in total 1928.4 grammes and the learned judge, based on that finding, held that she could raise the presumption of knowledge under section 37(d) and that of trafficking under section 37(da)(xvi) of Act 234;

in respect of the element of trafficking, section 2 of Act 234 further aids the prosecution because ‘carrying’ is defined as one of the acts which constitute trafficking under the said Act; 6

the irresistible inference to be drawn from carrying a huge quantity of the impugned drug and concealed as in this case would be that it was not intended for the personal consumption of the accused;

what also stood against the accused’s favour is that when asked by PW6, the accused replied that she was going to ‘Tanjung Pinang’ but had no idea of where the place was and with no return flight ticket from Kuching. She allegedly told PW6 that she would be in Kuching for one day and would go back the next day. With the accused’s admission to PW6 that she had no relatives or friends in Kuching, the evidence pointed solely to an inference that the accused came here just to bring the suitcase containing the drugs. In other words, it was the classic case of a drug mule;

this inference is strengthened when PW9 testified that the accused in her statement made after the arrest mentioned a black man named Amu who bought the flight ticket for her and passed her the suitcase although she claimed that she did not check its contents; and

PW9 could not be faulted for the failure to investigate the claim of the accused that she was just an innocent carrier of the drug at the behest of Amu because the onus was on the accused to facilitate that investigation by giving the relevant sufficient information on Amu. Her failure to do so could not be held against the prosecution. [9] However, despite the above findings, the learned judge held that no prima facie case had been made out against the accused on the charge and consequently she was acquitted and discharged from the charge without the defence being called. Her reasons for doing so are these – 7

the undisputed fact is that the suitcase was not locked and did not bear any security seal or label. One of the ways the integrity of the suitcase to be preserved would be the placing of the security labels on the same. Whether this was done when the accused checked-in the suitcase at Hong Kong Airport, no one knew for sure because the prosecution did not lead any evidence on this. Without the security labels on the said suitcase or even traces of it, the probability of its contents being tampered with during its journey from Hong Kong to Kuala Lumpur and then to Kuching could not be ruled out;

this probability was also agreed by PW9 and PW7 in their evidence during cross-examination. Of course there was equally no evidence to prove tampering but the absence of such evidence did not obliterate the first probability;

that first probability was further strengthened by the evidence adduced by the prosecution that the accused’s flight reservation summary (Exhibit P15D(iii)) showed that the weight of her checked-in baggage was 16 kilograms. However, on another document tendered with her boarding passes (Exhibits P17A and P17B) showing her flight details which was marked as Exhibit P18, was a handwritten notation ‘CHED-W: 20 Kgs’ below the printed words “CARRY ON:7 KGS”. These three documents were tendered through PW6. There was no explanation on the handwritten words from PW6 but it was put to PW9 that he did not investigate with the relevant authorities in Hong Kong and Kuala Lumpur International Airport what the weight of the checked-in baggage was and he also agreed that he did not 8 investigate whether the checked-in baggage weighed 20 kilograms.

because there was no investigation or explanation as to the actual weight of the checked-in baggage, that is, the suitcase and the identity of the person who wrote that three words notation or why it was made, the evidence that stood was that the weight of the checked-in baggage was 16 kilograms but for reasons unknown, it became 20 kilograms;

the forensic report on two mobile devices in the accused’s possession was not adduced as evidence at the trial for if it were made available, there may be information extracted from the device’s data that could shed some light on Amu;

in the absence of such evidence and that of the security seals on the unlocked suitcase where the drug was found, it would appear that the prosecution’s case could not withstand the test of maximum evaluation of the evidence because the court could not for sure make a finding that the accused had control of the suitcase;

the end result was that no prima facie case was made out against the accused. She was therefore discharged and acquitted of the charge without the defence being called. [10] It would be necessary to mention at this point that the prosecution appealed against the decision of the learned judge to this Court. On 17.4.2017, this Court allowed the said appeal and ordered the accused to enter her defence on the charge under section 39B of Act 234 before the same learned trial judge. 9 [11] After the accused had been put to an election on the 3 options open to her, the accused elected to be called as a witness in order to give sworn evidence. The defence also called one witness namely one Gurcharan Singh a/l Gurbachan Singh (DW2) who was an executive with Air Asia’s Investigation and Enforcement Unit, to testify. In her testimony, the accused testified that the suitcase was given to her by a Nigerian man named Amu who told her that it contained “shoes and baby shirts”. It is necessary to mention that, upon a perusal of her oral testimony, it shows that the accused did not mention the place and the date the suitcase was given to her by Amu. She further told the court that Amu bought the ticket for her to fly from Hong Kong to Kuching by Air Asia and that he also paid her to bring the suitcase to Kuching. She was told by him to pass the suitcase to ‘somebody’ in Kuching. Whilst in Hong Kong waiting for her flight to Malaysia, the accused claimed that she had also received a telephone call from a Thai lady asking her about the suitcase but it was somewhat ironic that the accused did not in her oral testimony give any details of that conversation with the said Thai lady. Equally ironic was the fact that when she received the suitcase, the accused said that she did not check its contents and professed not to know its weight and whether the suitcase was locked or unlocked. [12] The defence also tendered the accused’s cautioned statement as Exhibit D5. In it she said basically the same thing, that Amu gave her the suitcase and before coming to Kuching, she went to China on 23.10.2015, stayed in the hotel there with the purpose of buying telephones to sell in her home town. She then left China for Hong Kong on 31.10.2015 and from Hong Kong to Malaysia on 1.11.2015. The accused further stated that she met Amu at a shopping centre in China during her trip in the year before. On 31.10.2015, when she left China for Hong Kong, Amu gave 10 her the air ticket and the suitcase at a shopping mall. The accused was told by Amu to bring the suitcase to Malaysia and someone in Kuching would collect the suitcase from her and pay her money. The suitcase was not locked. She then took a bus from China to Hong Kong. It is important to note at this juncture the material contradiction with her sworn evidence where she said Amu paid her to bring the suitcase to Kuching. After Kuching, the accused said she intended to go to Penang. A significant point to note is that the accused in her oral testimony did not say that Amu gave the suitcase to her in Hong Kong. She merely said Amu asked her to bring the suitcase over to Kuching to be given to someone there. From the cautioned statement the accused said that Amu gave her the suitcase at a shopping complex before she left for Hong Kong, which means that the suitcase was given to her when she was still in China. The accused was also asked and had admitted in her cautioned statement, that she had made lone trips to China, Indonesia and Malaysia and that the purpose was to shop. [13] Reverting back to her sworn evidence and in cross-examination by the learned Deputy Public Prosecutor, the accused said that she did not know who she was supposed to meet in Malaysia, which hotel she was going to stay in, and that Amu bought her flight ticket to bring the suitcase to Kuching. However, Amu instructed her to buy a sim card and to call him back when she was in Kuching. The accused further told the court that according to Amu, the person whom she would meet in Kuching would call her back. When pressed further by the prosecution regarding Amu, the accused said that she did not know Amu’s telephone number and she did not give his personal details to the investigating officer. Neither did she tell the investigating officer personal details of the so-called Thai lady. 11 [14] DW2 in his evidence testified that all checked-in baggage must be sealed with a security label after they were screened and agreed that the suitcase in question had no security labels or remnants of the labels along its zipper. He agreed that the suitcase could have been interfered with during its journey from Hong Kong to Kuching if measures were not carried out properly. As regards the weight of the suitcase, DW2 testified that he never investigated the exact weight of the suitcase, but in his cross-examination, he said by referring to Exhibit P15D (ii), the flight reservation summary, that the weight allowance the accused was entitled to was 20 kilograms but the weight of the suitcase upon checking-in according to Exhibit P15D (iii), the flight information summary, was 16 kilograms. According to their airline procedure, the weighing of the checked-in baggage was done during check-in. He also testified that not anyone could check-in the luggage, it must be the person travelling. In re-examination, DW2 said the information from their system [Exhibit P15 D

(iii)] should be accurate and not that on the flight reservation summary (Exhibit P18) as the latter could be printed out by anyone and it was not the boarding pass. [15] In her grounds of judgment, the learned judge, at the end of the defence made the following findings:

as regards the absence of the security seals, the learned judge found that only a passenger could check-in his or her baggage. Therefore, in this case, it must be the accused who checked-in the suitcase but why the absence of the security seal was of course a mystery that no witness could explain, except the accused, because being the person who checked-in the suitcase, she should be able to know whether the security seals were affixed on the suitcase. The 12 accused, in her cautioned statement made an express admission that she checked-in the suitcase. She admitted being a seasoned traveller and this was corroborated by the entries in her passport (Exhibit P16), which showed trips made to Malaysia, Indonesia and China, as such she should have been alerted to and queried as to the absence of the security seal. But she did not, and exhibited the most cavalier attitude about the security of the suitcase when she could not even be bothered to check whether it was locked or unlocked. Her act of checking the contents of the suitcase after Amu had allegedly passed it to her was pure and simple case of wilful blindness;

the accused’s defence was one of an innocent carrier. However, based on the facts of the case, the accused was indeed wilfully blind when she accepted the errand from Amu. Any sane and reasonable person would have suspected something amiss with the paid errand as no right thinking person would have been so foolish as to pay for a person’s flight or even accommodation all the way from Hong Kong to Kuching just to bring children’s clothes and shoes. The accused was not a naive country bumpkin but one who had made lone trips overseas and to shop as she claimed and, as she also claimed, she could speak a bit of English. That ‘bit of English’ did not in any way handicap her from giving her cautioned statement in that language without the aid of any Thai interpreter. In her defence, she did not dispute that the cautioned statement was correctly recorded. In fact, her sworn evidence was in substance the same with the cautioned statement;

as for the probability of the unlocked and unsealed suitcase being tampered with during journey from Hong Kong to Kuching, even though that could not be ruled out since the suitcase was not locked 13 but on hindsight, the probability of anyone tampering with the suitcase so as to insert the six backpacks containing the drug in the suitcase without knowledge of its owner was simply too mindboggling to comprehend. The only logical probability would be someone being tempted to steal its content and the owner of the drug risking the loss of his illicit cargo;

the accused did not even bother to inspect the contents of the suitcase after Amu passed it to her and, given that the suitcase was not even locked, there was just no excuse for her not doing so. The high probability of her knowing the illicit contents of the suitcase was further evidenced by her reluctance to remove the items from the suitcase when asked to do so by PW6 who first examined the suitcase at the arrival hall of Kuching International Airport;

all the aforesaid failure of the accused must mean that the Alcontara notice had not been satisfied for it was neither reasonable nor practical and even logical to expect the investigating officer to look for a person in Hong Kong just from a name, which was not even a full name and without any address or other personal details;

having examined the defence case against the totality of the evidence adduced by the prosecution, the presumptions of possession and knowledge under section 37(d) and that of trafficking under section 37(da)(xvi) of Act 234 applied. The accused however failed to rebut those presumptions on a balance of probabilities;

assuming that the Court of Appeal did not rely on the presumption of trafficking, the accused’s act in carrying the drug in her suitcase came within the definition of trafficking under section 2 of Act 234 and which section the court was allowed to use in support of proof of that element. Based on the clear act of the accused collecting the 14 suitcase, her admission that the suitcase was her checked-in luggage which was further evidenced by luggage tag (Exhibit P6A), there was no reasonable doubt that she was indeed ‘carrying’ the drug at the time and place stated in the charge. The accused was therefore convicted of the offence as charged and sentenced to death. [16] Now we turn to consider the appeal. At this point, before going more closely into the merits of the appeal, it is legitimate to have regard to the defence contentions. A main plank in counsel’s submission is that the instant case is not a case of wilful blindness on the part of the accused in relation to the suitcase and its contents simply because there was no opportunity of intermediate inspection and even if inspected, the accused could not reasonably notice the impugned drug which was concealed inside the six backpacks that arrived together with the accused without cutting it open. [17] Next, it was strenuously argued that PW9 did not investigate the existence of Amu and the Thai lady who called the accused when she was at the airport in Hong Kong. This point we apprehend, concerns the issue of the Alcontara notice which requires the prosecution to look for Amu and the said Thai lady. [18] It was also urged for the defence that the accused had no custody and control over the contents of the unlocked suitcase which travelled from Hong Kong to KLIA and to Kuching airport without any security seals that was so openly exposed to unlawful interference or accessible by many along the transit routes and baggage handling process. Associated with this issue is learned counsel’s contention that the absence of any security 15 seals on the zip area of the suitcase is in direct contravention of the International Civil Aviation Organization’s (ICAO) Annex 17 to the Convention on International Aviation : Security : Safeguarding International Civil Aviation Against Acts of Unlawful Interference, in particular paragraph 4.5.2 of Chapter 4 which required all the check-in baggage to have security seals over it to prevent unlawful interference during the transit process and which therefore raised real doubts of unlawful interference with the suitcase leading to a break in the chain of evidence. [19] The ancillary points corollary to the above issues which were raised by learned counsel in his submission are –

there are serious doubts whether the 6 backpacks were found inside the suitcase and the evidence of the prosecution witnesses on this issue clashed;

PW9 did not investigate and compare the accused’s telephone book (Exhibit P14C) and the forensic report (Exhibit D4) on the accused’s mobile telephones which contained incoming and outgoing calls and messages and this seriously prejudiced the accused;

the accused did not have possession and had no knowledge of the impugned drug concealed inside the 6 backpacks, that might have been planted or concealed by Amu or by others involved in its interference. There is no evidence of any transaction that the accused had trafficked the drug; and

PW9 admitted in his evidence that he did not investigate the weight of the suitcase when it arrived at the airport in the light of the serious doubts on the weight of the backpacks raised by 16 Exhibit P18 and by Exhibit P17(A and B) which seriously prejudiced the accused. We propose to deal with these ancillary issues together with the principal grounds adumbrated above. [20] We begin by once again laying an emphasis on the need to be reminded that this Court had ordered the accused to enter on his defence following an appeal filed by the prosecution against the order of acquittal made by the learned judge at the close of case for the prosecution. The High Court, having heard and considered the defence, had convicted the accused and sentenced her to death. We consider it a correct proposition of law to state that it is not necessary for this Court, in considering the instant appeal, to revisit the prosecution case that would have the effect of reviewing the decision of the previous panel of this Court. The proposition does not in our view pose legal conundrum for such review would be the function of the Federal Court to perform in the event of an appeal against our decision in this appeal being filed with the said Court. The duty of this Court plainly is to focus on and address ourselves to the defence and to juxtapose it against the prosecution case in order to ascertain whether the defence has on the balance of probabilities rebutted the presumptions under section 37(d) and (da) of Act 234 or raised any reasonable doubt in the prosecution case. Although no reasons in this regard were given by the previous panel of the Court of Appeal in allowing the appeal by the prosecution, we could safely surmise that the fact that the accused was ordered to enter her defence on the charge, this Court was satisfied that the learned trial judge had made erroneous findings in law and on the facts. 17 [21] The law as explained by this Court in Devinthiran a/l Manni v Public Prosecutor [2017] 2 MLJ 410, Manimaran a/l Amas v Public Prosecutor and other appeals [2015] 1 MLJ 18 and Pendakwa Raya lwn Sulaiman bin Saidin [2010] 3 MLJ 383 confirms the view which has been expressed above. We must necessarily highlight on this point that consistent with the above legal proposition, section 182A of the Criminal Procedure Code requires the court to consider the evidence in its entirety at the conclusion of the trial which inevitably necessitates our meticulous scrutiny and reevaluation of the entire prosecution’s evidence in the light of the defence narrative of events. If the court, after the entire comparison and consideration of all the evidence, finds that the prosecution has proved its case beyond reasonable doubt, the court shall find the accused guilty as charged and she may be convicted thereon otherwise she should be acquitted and discharged from the charge where the prosecution has not passed that threshold of proof. That precisely is what we seek, and is required of us by law, to do now in this appeal. [22] The argument of the appellant which we may now consider focuses on the issue of the defence of innocent carrier. It was urged for the defence that this was not a case of wilful blindness on the part of the accused in relation to the suitcase and its contents. The learned judge in her deliberation on this contention correctly stated the law as explained by this Court in Hoh Bon Tong v PP [2010] 5 CLJ 240 which she neatly summarized in the following terms: “…her defence was one of an innocent carrier…, such a defence ‘must necessarily bring into the picture the concept of wilful blindness’. Ignorance is only a defence when there is no reason for suspicion and no right and opportunity of examination and ignorance simpliciter is not enough (Ubaka v 18 Public Prosecutor [1995] SLR 267). If a person deliberately shuts his eyes to the obvious, because he doesn’t want to know, he is taken to know, said Prof. Glanville Williams in his Textbook on Criminal Law which statements, as did that in Ubaka ‘s case (supra) mentioned above were quoted from the decision of Yong Pung How CJ in Public Prosecutor v Hla Hin [1995] 2 SLR 424. All these quotes were reproduced in Hoh Bon Tong’s case (supra)” [23] What has clearly emerged from our scrutiny of the accused’s oral testimony and her cautioned statement is that the defence of the accused stems from her position that she was asked by Amu to pass the suitcase to someone in Kuching to which she agreed because according to her she needed the money and that she had no knowledge of the dangerous drug concealed in the 6 backpacks found in the said suitcase. Amu, according to the accused, was a Nigerian man whom she knew only by that name. She did not know Amu’s full and real name nor have any personal details of Amu. There could thus be little doubt in our minds that the accused did not have any personal details of Amu, a fact which clearly indicates that the accused and Amu were not close. [24] A pertinent point that we want to mention is that the accused during cross-examination told the court that Amu told her to buy a sim card and call him back so that the person in Kuching could call her. Taking into consideration the above proven facts, we are driven to say that the accused had no reason to trust Amu and she had no reason to follow all his instructions. What is more telling in the face of this proven scenario is that the accused was completely unsuspicious. Amu bought the ticket for the accused’s long distance travelling from Hong Kong to Kuching for the sole purpose of passing the suitcase to someone that she did not know, she was given money to run the errand for Amu who never told her his full name and the name of the person that she was supposed to meet in 19 Kuching to whom the suitcase was intended to be delivered, as well as other personal details of the person such as his contact number and address. Instead she was merely asked to buy a sim card on arrival in Kuching. She should have and any reasonable person would have realised, given this scenario, that something was awfully amiss, yet the thought of asking Amu about running this errand for him never occurred to her. The accused should have at least asked Amu why her, and not him, who should have done that. The accused was clearly oblivious and unconcerned about all these suspicious circumstances. [25] After receiving the suitcase from Amu in China, the accused admitted that the suitcase was quite heavy, yet that by itself did not arouse her suspicion that would suddenly spring to her mind that she should open the suitcase in order to check its contents. After all, she had ample time and every opportunity to do so as she was given the suitcase in China on 31.11.2015 before she left for Hong Kong by bus. Her conduct is indeed not the conduct of a reasonable person similarly circumstanced as the accused who would have, with a sense of immediacy, reacted differently by inspecting the suitcase, especially when she received a suitcase from someone whom she hardly knew, to ensure that it did not contain anything illegal that could get her into hot water. However, the accused in this instance chose not to check the suitcase and that conduct by itself manifestly showed that she knew about the dangerous drug in the suitcase. Further mention must also be made to the fact that this was the accused’s first trip to Malaysia and it seemed rather odd that she did not know where she would be staying whilst in Kuching. When she could not tell the court the name of the hotel she intended to stay in Kuching, it plainly pointed to the fact that her sole purpose to come to Kuching was knowingly to bring the suitcase containing the impugned drug to be 20 delivered to someone in Kuching. The high probability of the accused knowing the illicit contents of the suitcase, according to the learned judge and which we accept as an irresistible conclusion, was further evidenced by the accused’s reluctance to remove the items from the suitcase when told to do so by PW6 who first examined the suitcase. [26] There were thus many instances or reasons that could trigger suspicion in the accused’s mind, or opportunities for the accused to inspect the suitcase, yet she deliberately shut her eyes to and ignored the obvious facts. Therefore, the accused’s failure to inspect the suitcase without any doubt showed that she was not an innocent carrier. This is further made manifest when one considers the fact that the accused had made frequent travels to China and Indonesia alone staying on an average of one week the purpose of which, according to the accused’s statement, was to shop. In her evidence, the accused admitted that she booked and purchased the tickets herself. From this fact, it could reasonably be discerned that the accused is someone who is knowledgeable and not a mere awkward simple rustic person or a country bumpkin who hailed from Ubon Ratchatani, near Laos far away from Bangkok. The learned judge in her grounds of judgment also considered the fact that the accused gave her cautioned statement in English and that her ‘bit of English’ did not handicap her from giving the same in that language unaided by a Thai interpreter. It is also the finding by the learned judge, which we accept as correct, that the accused did not dispute that the statement was correctly recorded and that her sworn oral testimony was in substance the same with the cautioned statement. [27] Thus, having regard to her background, it is hard to believe that the accused had no knowledge about the drug inside the suitcase that she 21 was carrying. A question may also reasonably be asked as to why was there the need for her to carry the shoes and baby clothes all the way from Hong Kong to Malaysia for Amu who could have done it himself. He really could have also sent them by courier which could be very much cheaper than using the service of the accused which the former had to pay for all her expenses in flying to Malaysia. The accused ought to be aware of this fact. Therefore the suspicion of the accused as a reasonable and sane person ought to have been aroused about the very true purpose of her trip to bring the suitcase to Kuching. The sole purpose of making the trip to China and Hong Kong during the material dates was in actuality to bring the suitcase containing the drug to Kuching. Her evidence that she went to China to buy China-made telephones to sell them in her hometown was an absolute lie because the defence could not produce any evidence such as documents or telephone devices to prove that she went to China for the said purpose. When challenged during cross-examination on this issue, the accused gave an unconvincing and utterly absurd answer that she had not bought the telephones yet. [28] The only logical conclusion for the court to draw is that the accused in truth knew what she was doing and was fully aware of the presence of the drug hidden in the backpacks when she ran the paid errand to deliver the impugned drug to the unknown person in Kuching and the drug was so concealed in order to avoid detection by the authorities. Besides, the baggage tag (Exhibit P6(A)) attached to the suitcase bore the name of the accused. As we had stated earlier, the accused in her testimony admitted that she carried the suitcase to Kuching, had control and custody of the suitcase and was the one who took the same from the conveyor belt. For these reasons, we have no hesitation to accept the findings made by the learned judge that the doctrine of wilful blindness applies in this instance. 22 We cannot accept the argument urged for the defence that the accused was an innocent carrier. [29] We find the evidence of the defence to be highly improbable and ought to be dismissed as a sheer fabrication and is incapable of rebutting the presumptions under section 37(d) and (da) of Act 234. We would conclude our deliberation on this issue by reproducing the relevant excerpts from the judgment of the Federal Court in the case of Public Prosecutor v Herlina Purnama Sari [2017] 1 MLRA 499 at page 512, which serves as a useful guide to the court in dealing with the issue of wilful blindness – “[46] The concept of ‘wilful blindness’ had been discussed in a number of local cases but it seems to have had its genesis in the dissenting judgment of Yong Pung How CJ (Singapore) in the case of Public Prosecutor v. Hla Win [1995] 2 SLR 424. 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 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. [47] Most of the cases where the concept was held to apply concerned cases in which the accused was asked to carry certain articles, or a package, or a bag, or to swallow certain items. In these circumstances, where the request to do any of those things mentioned would be such as would arouse the suspicion of a reasonable person as to the contents, it was upon the accused to make sufficient inquiries under those circumstances, the concept of wilful blindness 23 would apply so as fasten upon him or her the necessary knowledge as to the nature of those contents. In other words, if he deliberately, ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know’, he is taken to know.” [30] The next point in the defence contention concerns the issue of the Alcontara notice relating to the existence of Amu which, according to learned counsel, PW9 did not investigate when his name was mentioned thrice in the accused’s cautioned statement taken after her arrest. It is significant to emphasize that the notice given by the accused was indeed a vague notice. The accused only mentioned the name of Amu who according to her is a Nigerian man. However no full or real name of Amu, his telephone number and address were furnished by the accused to PW9. The accused also claimed that a Thai lady whom she did not know, had called her asking about the luggage whilst she was in Hong Kong waiting for her flight to Malaysia. Again, the accused did not inform PW9 the name of the lady, her telephone number and address. There was without question, no sufficient information furnished by the accused for PW9 to investigate the case in relation to Amu in China as well as the alleged Thai lady. The defence had failed to provide sufficient and good particulars in connection with Amu and the Thai lady that would call for an investigation by PW9. [31] It is settled in our law that the Alcontara notice must have sufficient particulars in the right perspective and not a vague notice where the prosecution is not able to advance its investigation to rebut the defence story (Phiri Mailesi (Zambian) v Public Prosecutor [2013] 5 MLJ 780). We find no difficulty whatsoever in agreeing with the learned judge that the Alcontara notice as held in Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209 had not been satisfied for it was neither 24 reasonable nor practical and even logical to expect PW9 to look for Amu in China just from a name which was not even a full name, and the Thai lady whose name and any other details were not provided by the accused. [32] We observe that learned counsel raised the issue relating to the forensic report (Exhibit D4) on the accused’s mobile telephones seized upon her arrest and her telephone book (Exhibit P14C) complaining that PW9 did not compare Exhibit P14C and Exhibit D4 which contained incoming and outgoing calls and messages on the said mobile telephones. We find that the learned judge had given adequate consideration over this issue and held that she could not construe that fact in the accused’s favour because there was nothing to stop the accused at the time of her detention to give the arresting officer, PW5 or PW9, the telephone number of Amu and the Thai lady from her mobile telephones. There was no evidence to show that the accused was prevented from doing so by either PW6 or PW9. It was therefore not enough for the accused to just mention Amu, who was in China, to PW6 and PW9 in Kuching without making an attempt to at least show them that the person existed, and in this age of smartphones, Amu’s contact number could easily be retrieved by her at the earliest opportunity when the drug was discovered. We need only say that we could not find any fault in the decision of the learned judge on this aspect which requires intervention on our part. [33] In any event, we will go further to say that to prove the existence of Amu and the alleged Thai lady, the legal burden lies on the accused to prove the same. It is the defence’s duty to call Amu and the Thai lady to give evidence, and not for the prosecution to investigate, for they were the ones who could explain or shed some light so as to show some semblance of truth in her evidence. It would be easy for the accused to shift the blame 25 or level accusation against a third person with scanty or no information about the said person and say the investigating officer needs to investigate if it was true. In such a situation, it is absurd to expect the investigating officer to do so and consequently hit a wall making explanation in court to become almost impossible. Therefore, PW9 in our judgment could not therefore be faulted for omitting to investigate the accused’s claim that she was just an innocent carrier of the drug at the behest of Amu. Hence, we agree with the learned judge that the failure to do so could not be held against the prosecution. We would refer to and endorse the decision of this Court in the case of Tobechi Chinonso Madu v Public Prosecutor [2015] 1 LNS 57 where this Court had this to say – “[17] In any event, since the appellant had a legal burden to discharge (to disprove knowledge) it was his duty to call Ossy to give evidence and not for the police to investigate if it was true that Ossy had asked him to carry the soap boxes: Baharom v PP [1960] 1 LNS 9; [1960] MLJ 429; Liew Siew & Anor v PP [1969] 1 LNS 90; Chu Tak Fai v PP [1998] 4 CLJ 789. Hence, since Ossy was not called to give evidence there was no way the court could verify the truth of what Ossy told him at Lagos Airport. In fact the evidence is hearsay and inadmissible as the object was to prove the truth of what Ossy told him: PP v Subramaniam [1956] 1 LNS 115; [1956] MLJ 220 P.C.” [our emphasis] [34] Therefore, since Amu and the Thai lady were not called to give evidence, the court was in no position to determine and ascertain the truth of the accused’s testimony that Amu gave her the suitcase and that the Thai lady called her to ask about the same for such evidence is hearsay and inadmissible. No weight therefore ought to be given to the evidence of the defence on this point. In PP v Lim Hock Boon [2009] 3 CLJ 430 the Federal Court at page 440 held – 26 “(iv). The respondent failed to cast a reasonable doubt on the prosecution’s case. His defence was a mere denial. The court could give little weight to the respondent’s evidence that his brother Lim Hock Kee had borrowed his car earlier because he had failed to call this person as a witness.” The above conclusion, in our judgment, is sufficient to dislodge the defence submission on the issue of the Alcontara notice. [35] The next crucial issue on which the appeal turns concerns the defence submission that the absence of security seals along the zipper area of the suitcase raised the probability of unlawful interference with the contents of the suitcase. The absence of such security seals, learned counsel submitted, had contravened Annex 17 to the Convention on International Civil Aviation: Security: Safeguarding International Civil Aviation Against Acts of Unlawful Interference (the Chicago Convention), in particular paragraph 4.5.2 of Chapter 4 which stipulates that – “Each Contracting State shall ensure that all hold baggage to be carried on a commercial aircraft is protected from unauthorized interference from the point it is screened or accepted into the care of the carrier, whichever is earlier, until departure of the aircraft on which it is to be carried. If the integrity of hold baggage is jeopardized, the hold baggage shall be re-screened before being placed on board aircraft.” [36] Malaysia is a Contracting State to the Chicago Convention. Under section 3(1) of the Civil Aviation Act 1969, the Minister is empowered to make regulations for the purpose of inter alia, carrying out the Chicago Convention and any Annex to it. This the Minister did and that regulation is called the Civil Aviation Regulations 2016. Malaysia’s compliance with 27 Annexe 17 is provided under regulation 168(1) of the said Regulations which provides as follows:

“Responsibilities of Director General

The General shall be responsible for safeguarding civil aviation against any acts of unlawful interference and for that purpose, the Director General shall comply with the provisions of Annex 17 to the Chicago Convention and the Security Manual for Safeguarding Civil Aviation against Acts of Unlawful Interference issued by ICAO, as amended from time to time. [37] Based on the above provisions, it is plain that the Contracting State such as Malaysia shoulders the responsibility to ensure that all hold baggage on a commercial aircraft is protected from unauthorized interference from the point it is screened or accepted into the care of the carrier until departure of the aircraft. The evidence is led to show that the accused boarded the Air Asia flight in Hong Kong. Therefore, it is clear that under Annex 17 paragraph 4.5.2 of Chapter 4 it would be the responsibility of the civil aviation authority in Hong Kong to ensure the integrity of the hold baggage was preserved from the time it was screened until the aircraft departure. However, when the flight departed Kuala Lumpur for Kuching, that responsibility lies with our Civil Aviation Department. Now, one of the ways the integrity of the hold baggage is to be preserved would be the placing of the security labels on the said baggage. Anyone and everyone who has taken a flight before would know this. Whether this was done when the accused checked-in the suitcase at Hong Kong Airport and at the KLIA Airport no one knew for certain. [38] However, there is absolutely no evidence to show the probability of the contents of the suitcase being tampered with during its journey from Hong Kong to Kuala Lumpur and to its final destination in Kuching. The 28 learned judge had no doubt made the finding that there was no evidence of tampering. This issue ought, in our judgment, to be considered in the light of the earlier 2 principal contentions which we have already deliberated a little while ago. These are the defence submissions of the accused being an innocent carrier and the existence of Amu and the Thai lady which we have rejected. Our findings on both issues support and apply equally to our conclusion that there was no evidence of the probability of tampering with the contents of the suitcase leading to a break in the chain of the evidence and accordingly it puts paid to the defence argument of tampering. The accused clearly was in possession of the impugned drug concealed in the backpacks and the presumptions under section 37(d) and (da) of Act 234 thus apply to her. The further argument of learned counsel that it was impossible for the accused to have detected and come to know of the drug concealed in the 6 backpacks because it was done by someone else must similarly fall and is unacceptable. [39] The learned judge on this point had dealt with the matter raised by learned counsel. Suffice for this Court to say that we agree with Her Ladyship’s clear reasoning and decision on this issue. We do not wish to say any further on this issue except to quote from the grounds of judgment the relevant excerpts of Her Ladyship’s decision which we affirm herein – “The absence of the security seals of course is another matter but from what I can gather from Mr. Gurcharan Singh’s evidence, which I have no doubt is the truth, only passenger can checked in his/her baggage. Therefore, in this case, it must be the accused who checked in the suitcase but why the absence of the security seals is of course a mystery that no witness can explained, except the accused. I said ‘the accused’ because being the person who checked-in the suitcase she should be able to know whether the security seal were affixed in the suitcase. I made that statement with confidence not just because of Mr. 29 Gurcharan Singh’s evidence but because the question ‘S42’ that she checked-in the suitcase. And being a seasoned traveller (as per her own admission and corroborated by the entries in her passport, i.e Exhibit P16 which shows trips made to Malaysia, Indonesia and China as stated earlier) she should have been alerted to and queried that failure to do so. But she did not and exhibited the most cavalier attitude about the security of the suitcase because, as also stated earlier, she could not even be bothered to check whether it was locked or unlocked. As with not checking the content of the suitcase after Amu allegedly passed it to her, it was pure and simple, a case of wilful blindness. … … As for the probability of the unlock and unsealed suitcase being tampered with during journey Hong Kong to Kuching even though that cannot be ruled out since the suitcase was no locked but with hindsight, the probability of anyone foolish enough to insert the six backpacks containing the drugs in the suitcase without knowledge of its owner is simply too mindboggling to comprehend. The only logical probability would be someone being tempted to steal its content and the owner of the drug risking the loss of his illicit cargo-a risk which I had mentioned in my earlier judgment.” [40] Another point in the contention of learned defence counsel relates to the issue of the initial weight of the suitcase which it was alleged when it was checked-in as captured in the airlines system was 16 kilograms but had ballooned to 20 kilograms upon arrival at the Kuching airport. DW2 on this point explained during cross-examination that, by referring to Exhibit P15D (ii), the flight reservation summary, that the weight allowance the accused was entitled to was 20 kilograms but the weight of the suitcase upon checking-in at the airport in Hong Kong according to Exhibit P15D

(iii), the flight information summary, was 16 kilograms. DW2 further testified that the weighing of the checked-in baggage was done during check-in and that not anyone could check-in the luggage, it must be the person travelling. The information from their system in Exhibit P15D (iii), 30 according to DW2, should be accurate and not that on the flight reservation (Exhibit P18) as the latter could be printed out by anyone. The learned judge succinctly stated, and we agree entirely with Her Ladyship, that the weight of the suitcase when it was checked-in as captured in the airlines’ system was 16 kilograms although the accused’s weight entitlement was 20 kilograms. The learned judge further explained that the explanation by DW2 had cleared Her Ladyship’s misconception that she had at the close of case for the prosecution that the weight of the suitcase had ballooned from 16 kilograms to 20 kilograms. This issue as raised by the defence therefore has been convincingly and correctly decided by the learned judge. [41] There remains the question as raised by the defence whether the 6 backpacks were actually found inside the suitcase and the evidence of the prosecution witnesses on this issue. The point raised by learned counsel before us was that there were only two backpacks in the suitcase. In this regard, PW4 during cross-examination agreed that she saw only two backpacks being taken out from the suitcase by PW5 and PW6 but during re-examination she said that she did not know how many backpacks were actually in the said suitcase. PW5 also agreed that from the said suitcase two backpacks were taken and in re-examination she said that PW6 and the narcotics team would know how many backpacks were actually inside the suitcase. PW6 in her evidence was however adamant that there were backpacks in the suitcase although when shown her section 112 statement (Exhibit D1) recorded by PW9 she agreed that she only mentioned two backpacks. In re-examination, PW6 clarified that she told PW9 that she saw new backpacks still in plastic bags in two rows inside the suitcase but only mentioned two backpacks in her written statement because she examined only two of them. The learned judge accepted 31 PW6 as a witness with credibility for her demeanour was calm and steady in giving her evidence despite the strenuous cross-examination and taking time to answer the questions by learned counsel. We agree entirely with the findings of fact made by the learned judge that there were 6 backpacks, and not just two, which were retrieved from the suitcase. In the grounds of judgment the learned judge said – “I also find her explanation on why only two backpacks were mentioned in her written statement equally reasonable and plausible and the fact that there were no break or gaps in the evidence adduced from the Custom Officers at the Airport to those from the Narcotics team when these six backpacks were found at Jalan Gedong. Besides, photographs of these six backpacks were also taken at that material time and there is also no plausible reason why any of or all of these Custom Officers at the Airports and at their office would want to plant four additional backpacks in the suitcase or lie about them. I said ‘plant’ because from the chain of evidence, only these officers have the opportunity to do so and have the reason to fib about the number of backpacks that were discovered, which of course was not shown to be the case. All this I say despite the fact that Mohd Naslan in his written section 112 statement made to Tan Sing Chai [Exhibit D2] also did not mention about six backpacks-only two, because when I read that statement of his, it is clear that the mention of the two backpacks was in respect of the scanning process by Si Kui Sian – not that there were only two backpacks in the suitcase. Thus, I am satisfied beyond a shadow of doubt that there were six backpacks and not just two which were retrieved from the suitcase Exhibit P6.” Thus, on this finding, there is certainly no force in the contention of learned counsel that there were only 2 backpacks, and not 6, which were found in the suitcase. 32 [42] The learned judge, in our judgment, correctly found that, based on the evidence led by the prosecution, the presumptions under section 37(d) and (da) (xvi) of Act 234 apply. Having considered the evidence in totality the learned judge came to the conclusion that the defence had failed to rebut these presumptions on the balance of probabilities. Even assuming the presumptions do not apply, the learned judge proceeded to hold that the accused’s act in carrying the drug in her suitcase came within the definition of trafficking under section 2 of Act 234, which the court is entitled to invoke in support of the element of trafficking as held by the

Federal Court in Public Prosecutor v Lim Hock Boon [2009] 3 CLJ The learned judge correctly concluded that based on the clear act of the accused in collecting the suitcase, her admission that the suitcase was her checked-in luggage which was further evidenced by the luggage tag, there was no reasonable doubt that the accused was ‘carrying’ the impugned drug at the time and place stated in the charge. [43] For the reasons that we have already indicated and upon subjecting the entire evidence to our anxious scrutiny, we are consequently led to one glaring conclusion which is that, on the strength of the prosecution’s evidence juxtaposed against the defence testimony, that the learned judge was perfectly entitled to arrive at the above conclusion and findings. In the upshot, the appeal is dismissed and the conviction and sentence are affirmed. Signed ( IDRUS BIN HARUN ) Judge Court of Appeal, Malaysia Putrajaya Dated: 3 October 2018 33

Solicitor For The Respondent - Tuan Mohd Taufik bin Mohd Yusoff Timbalan Pendakwa Raya Unit Perbicaraan Jabatan Peguam Negara No. 45, Persiaran Perdana

Solicitor For The Appellant - Shankar R.P Asnadi (Daniel C.L Ling with him) Thomas, Shankar Ram & Co. Advocates 1st Floor, Lot 355, Section 50,