Ngoforo Ebube Gospel (Nigeria) v Pendakwa Raya (B-05(SH)-504-10/2024)

Ngoforo Ebube Gospel (Nigeria) (Passport No.: A08961423)

Nelson Oguchukwu Chukwuemeka] CORAM AZMI BIN ARIFFIN, JCA NOORIN BINTI BADARUDDIN, JCA MEOR HASHIMI BIN ABDUL HAMID, JCA JUDGMENT [1] The Appellant and one Nelson Oguchukwu Chukwuemeka were jointly charged with trafficking in dangerous drugs, namely 149.4 grams of cocaine, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”), read together with section 34 of the Penal Code. The charge reads: “Bahawa kamu bersama-sama pada 25 Oktober 2019 jam lebih kurang 1.50 petang bertempat di hadapan premis G-1, Blok A, Zenith Corporate Park, Jalan SS7/26 Kelana Jaya, di dalam daerah Petaling, di dalam Negeri Selangor Darul Ehsan telah mengedarkan dadah berbahaya, iaitu Cocaine seberat 149.4 gram dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan.” [2] At the close of the prosecution’s case, the learned High Court Judge found that the prosecution had established a prima facie case against the Appellant. However, no such case was made out against Nelson Oguchukwu Chukwuemeka, who was accordingly acquitted and discharged. The prosecution did not appeal against that acquittal. [3] At the conclusion of the defence case, the learned High Court Judge was satisfied that the charge against the Appellant was proven beyond reasonable doubt. The Appellant was accordingly convicted and sentenced to 30 years’ imprisonment and 12 strokes of the whip. [4] The present appeal is directed against both the conviction and the sentence imposed by the learned High Court Judge. [5] At the trial, the Appellant and Nelson Oguchukwu Chukwuemeka were respectively referred to as “OKT1” and “OKT2”. Prosecution’s Case [6] The prosecution called five witnesses, including the complainant (SP1), members of the raiding team, the chemist (SP3), and the investigating officer (SP5). [7] The prosecution’s case was premised on surveillance and a subsequent raid conducted on 25.10.2019, pursuant to prior information relating to drug trafficking activities. Acting on such information, SP1 and his team proceeded to the vicinity of Zenith Corporate Park, Kelana Jaya, where they positioned themselves at various locations to conduct surveillance. [8] During the surveillance, SP1 observed the Appellant and OKT2 at the scene, consistent with the information received. SP1 then approached a black Toyota Camry bearing registration number WDN 9799, identified himself as a police officer, and arrested the Appellant. [9] A search of the said vehicle, conducted in the presence of the Appellant, led to the discovery of a bag containing a container in which were 20 transparent pellets filled with a whitish substance suspected to be cocaine. Also found within the bag were documents bearing the name of OKT2, thereby linking him to the said exhibits. [10] The prosecution further relied on the direct observation of SP1 and his team that OKT2 had earlier carried the said bag and placed it into the vehicle driven by the Appellant before leaving the scene. The Appellant was thereafter trailed and apprehended shortly thereafter. [11] OKT2 was subsequently arrested at a different location later on the same day. No incriminating items were found on him at the time of arrest, save for personal identification documents. [12] Upon arrest, both the Appellant and OKT2 were informed of the nature of the offence in simple English, which they acknowledged and understood. [13] The seized exhibits were duly handed over to the investigating officer, and thereafter forwarded to the chemist for analysis. The chemist (SP3) confirmed that the substance contained in the exhibit marked “HM” (P27) was cocaine with a net weight of 149.4 grams. [14] The thrust of the prosecution’s case was that the Appellant was in custody and control of the vehicle in which the drugs were found, while OKT2 was directly linked to the drugs through his prior possession and placement of the bag into the said vehicle, thereby establishing joint trafficking within the meaning of section 39B(1)(a) of the Dangerous Drugs Act 1952 read together with section 34 of the Penal Code.

(A) The Case Against the Appellant (OKT1) [15] The Appellant’s primary defence at this stage was that he was merely a “momentary carrier” of the bag (P12). The learned High Court Judge rejected this contention. [16] The learned High Court Judge placed significant weight on the undisputed fact that the bag P12 was found inside the Toyota Camry driven by the Appellant at the time of his arrest. CCTV footage showed that the bag had been placed into the vehicle, and notwithstanding the uncertainty as to the identity of the person who placed it there, the Appellant was apprehended in possession of the said vehicle together with the drugs therein. [17] The learned High Court Judge found the Appellant’s “momentary carrier” argument/defence to be devoid of merit. Her Ladyship reasoned that in many drug trafficking cases, accused persons are apprehended shortly after coming into contact with the drugs. To accept such a defence would, in effect, enable accused persons to evade liability merely by asserting fleeting interaction with the drugs, a proposition the court found untenable. [18] Further, it was the findings of the learned High Court Judge that the CCTV evidence revealed that the Appellant did not engage in any conversation with the individual who placed the bag into his vehicle. The learned High Court Judge drew an adverse inference from this conduct, finding that it suggested prior acquaintance and a pre-arranged understanding. According to the learned High Court Judge, the Appellant appeared to have knowingly permitted the placement of the bag into his vehicle, retained it therein without question, and proceeded to drive off with it. [19] According to the learned High Court Judge, although items belonging to OKT2 were found in the bag, this did not exculpate the Appellant. The learned High Court Judge found that once the bag was placed into the vehicle, it came within the Appellant’s custody and control and the Appellant had sufficient opportunity to inspect or question the contents, particularly as he had driven around the vicinity prior to his arrest. [20] The failure of the prosecution to conduct forensic analysis on the Appellant’s mobile phone was also raised by the defence. However, the learned High Court Judge found that this omission did not detract from the incriminating circumstances arising from the Appellant’s conduct, which was found to be inherently suspicious. [21] On the totality of the evidence, the learned High Court Judge was satisfied that the Appellant had custody and control of the drugs. However, there was no direct evidence establishing his knowledge of the contents of the bag. In this regard, the learned High Court Judge relied on the Federal Court decision in Sathya Vello v PP [2022] MLJU 817, which clarified the operation of the presumptions under sections 37(d) and 37(da) of the DDA. Where custody or control is established, the presumption of knowledge under section 37(d) of the DDA arises. In contrast, the presumption of trafficking under section 37(da) requires affirmative proof of knowledge (mens rea possession). [22] Applying the above principles, the learned High Court Judge held that the presumption under section 37(d) of the DDA was engaged against the Appellant, thereby shifting the evidential burden onto him to rebut the presumption of knowledge on a balance of probabilities. The court further noted, following Ariff Arhannan bin Che Udin v PP [2022] 3 MLJ 157, that in trafficking cases, once possession with knowledge is established, the inquiry shifts to whether such possession was for the purpose of trafficking. [23] Having regard to the quantity of drugs involved, namely 149.4 grams of cocaine, the learned High Court Judge accepted the prosecution’s contention that such quantity could not reasonably be for personal consumption. The Court therefore invoked the definition of “trafficking” under section 2 of the DDA and directed for the Appellant to enter his defence.

(B) The Case Against OKT2 [22] In contrast, the learned High Court Judge found that the identification of OKT2 as the individual who placed the bag into the vehicle was not established with certainty. The CCTV footage did not clearly reveal the identity of the person in question. [23] Crucially, SP1 himself conceded during cross-examination that he was unable to confirm that the individual seen in the CCTV footage was OKT2. The lack of clear visual identification gave rise to a material doubt which could not be disregarded, particularly in a case carrying severe penal consequences. [24] The learned High Court Judge further noted that even upon re-examination, SP1 maintained that the facial features of the individual in the footage were unclear, and his identification was based merely on general observation rather than certainty. [25] While items belonging to OKT2 were found in the bag, the learned High Court Judge held that this alone was insufficient to establish possession. The possibility that such items could have been placed in the bag at a later stage could not be ruled out, particularly in the absence of supporting forensic evidence. [26] According the learned High Court Judge, the absence of fingerprint evidence linking OKT2 to the bag was a significant omission. No forensic examination was conducted to establish whether OKT2 had handled the bag. It was the finding of the learned High Court Judge that this gap materially weakened the prosecution’s case. [27] Further, there was no evidence of prior communication or coordination between the Appellant and OKT2. According to the learned High Court Judge, the failure to analyse their mobile phones deprived the court of potentially crucial evidence that could have established a common intention under section 34 of the Penal Code. [28] It was further found that the issue of custody and control was also not established against OKT2. He was arrested at a different location, and no incriminating items were found on him. At the material time, the bag was in the vehicle driven by the Appellant, and there was no evidence that OKT2 retained any control over it. [29] The learned Judge also expressed concern regarding the integrity of the chain of custody. Given that the Appellant had driven around prior to his arrest, the possibility of interference with the bag could not be excluded, particularly in the absence of cogent evidence establishing an unbroken chain of custody. [30] Additionally, the investigation was found to be less than satisfactory. A potentially relevant CCTV recording from another angle was not obtained or adduced in evidence, despite its capacity to clarify the identity of the individual involved. [31] In light of these evidential deficiencies and investigative shortcomings, the learned High Court Judge held that there existed a reasonable doubt as to OKT2’s involvement. [32] Accordingly, the Court found that the prosecution had failed to establish a prima facie case against OKT2 under section 39B of the DDA. The High Court’s Findings At the Close of Defence [33] Upon evaluating the totality of the evidence, the learned High Court Judge found that the Appellant had failed to rebut the presumption of knowledge under section 37(d) of the DDA and had also failed to raise any reasonable doubt in respect of the prosecution’s case. Accordingly, the prosecution was held to have proved its case beyond reasonable doubt. [34] The learned High Court Judge was satisfied that the Appellant had custody and control of the drugs. The bag (P12) containing the drugs was placed into the Appellant’s vehicle, which he exclusively drove and occupied at the material time. [35] The learned High Court Judge found that the Appellant did not question or resist the act of the unidentified individual placing the bag into his vehicle. This lack of reaction was found to indicate prior familiarity and a pre-arranged understanding, thereby negating any suggestion that the Appellant was an unwitting or accidental custodian. [36] The learned High Court Judge held that the Appellant failed to rebut the presumption of knowledge. The defence that the bag was zipped and its contents unknown was rejected, as the law presumes knowledge of the contents of items within one’s possession unless rebutted. [37] The Appellant’s explanation that he was merely asked to hold the bag temporarily was said to be unsupported by any evidence. In particular, no call records or communication evidence were adduced, despite the opportunity to do so, the Appellant’s mobile phone had been tendered in evidence, yet no effort was made to substantiate his version and the surrounding circumstances, including the manner in which the bag was handed over without discussion, suggested prior knowledge rather than ignorance. [38] The learned High Court Judge found it inherently improbable that a person would accept and retain a bag of unknown contents, particularly in suspicious circumstances involving a substantial quantity of drugs. [39] The learned High Court Judge rejected the Appellant’s contention that he was merely a “momentary carrier”. Her Ladyship held that even temporary possession, where accompanied by control, suffices to establish possession in law. According to the learned High Court Judge, to accept such a defence would undermine the statutory framework and allow traffickers to evade liability through artificial characterisation of their involvement. [40] The learned High Court Judge found the Appellant’s narrative to be inherently implausible. The claim that he agreed to safeguard a bag for a stranger, without inquiry as to its contents, was considered unreasonable and the alleged prior interactions (including a purported lunch meeting) were unsupported by any objective evidence, including CCTV footage. The defence was therefore characterised as an afterthought lacking credibility. [41] In conclusion, the learned High Court Judge held that the Appellant had custody, control, and knowledge of the drugs. The presumption under section 37(d) of the DDA was not rebutted. The quantity of drugs (149.4 grams of cocaine) supported an inference of trafficking within the meaning of section 2 of the DDA and the defence failed to raise a reasonable doubt. Issues for Determination [42] Arising from the Appellant’s grounds of appeal, the following issues fall for determination by this Court:

Whether the Appellant was denied a fair trial by reason of the acquittal of OKT2 at the close of the prosecution’s case, thereby prejudicing the Appellant’s ability to advance his defence;

Whether the learned High Court Judge failed to properly evaluate and give due consideration to the material aspects of the defence, in particular the sworn statement of OKT2 (D42), the Appellant’s cautioned statement (D43), and the testimony of the defence witness, SD2; and

Whether the learned High Court Judge erred in rejecting the Appellant’s defence that he was merely a momentary carrier without knowledge of the drugs. Our Analysis and Findings [43] It is trite that an appellate court will not lightly interfere with findings of fact made by a trial court. However, where it is shown that the trial judge has misdirected herself in law, failed to consider material evidence, or reached findings that are plainly against the weight of evidence, thereby occasioning a miscarriage of justice, it is the duty of this Court to intervene (see Dato’ Seri Anwar Ibrahim v PP [2004] 3 CLJ 737; Magendran Mohan v PP [2011] 1 CLJ 805).

(A) Whether the Appellant was denied a fair trial [44] The central plank of the Appellant’s complaint concerns the acquittal of OKT2 at the close of the prosecution’s case. The Appellant’s defence throughout was that OKT2 was the actual possessor and trafficker of the drugs, and that the Appellant was merely an unwitting carrier. [45] Upon a careful perusal of the record, we find that the learned High Court Judge’s conclusion that the identity of OKT2 as the individual who placed the bag (P12) into the Appellant’s vehicle was not established, was not borne out by the totality of the evidence. The evidence of SP1, when considered in its entirety, did not negate the identification of OKT2, rather, it reflected the inherent limitations in the clarity of the CCTV footage. Crucially, SP1 maintained that based on his direct observation at the scene, OKT2 was the individual who carried and placed the bag into the vehicle. This aspect of the evidence was not accorded due weight. We further observed that the cross-examination conducted by learned counsel for OKT2 was marked by inconsistency. At one juncture, it was admitted that OKT2 was the person who placed the bag in the vehicle; yet, at another, when the CCTV footage was shown, it was put to SP1 that the individual seen carrying and placing the bag could not be identified, to which SP1 agreed. [46] Importantly, the Appellant’s defence that the bag containing the dangerous drugs belonged to OKT2 was not challenged by OKT2 himself. On the contrary, OKT2 admitted that he had placed the bag in the vehicle and that he intended to retrieve it upon his return from KLIA, after which he would hand it over to a friend by the name of Chibuke. [47] Further, it is apparent that throughout the prosecution’s examination, the prosecution itself proceeded on the footing that it was OKT2 who had placed the bag in the vehicle. In other words, OKT2 never relinquished custody and control of the bag. He had merely left it temporarily with the Appellant while rushing to the airport, with the intention of reclaiming it upon his return. [48] We further find that the learned High Court Judge’s findings that items bearing OKT2’s name and his passport in the bag that contained the drugs may have been planted, and that the bag may have been substituted, were speculative in nature and unsupported by any evidential foundation. Such findings ought not to have been made in the absence of cogent evidence. [49] In the circumstances, we find that the acquittal of OKT2, premised on a misapprehension of the evidence and speculative reasoning, had the effect of depriving the Appellant of a fair opportunity to advance his defence. The Appellant was denied the opportunity to test OKT2’s version and to establish that OKT2 was the principal actor. In our judgment, this constitutes a serious irregularity which has occasioned a miscarriage of justice.

(B) Failure to judicially appreciate the defence [50] We next consider whether the learned High Court Judge had properly evaluated the defence as required under section 182A of the Criminal Procedure Code. It is settled law that the trial court must undertake a maximum evaluation of all the evidence, including which was adduced by the defence. A failure to do so amounts to a misdirection warranting appellate intervention (see Koo Wing Cheung & Anor v PP [2014] 1 CLJ 46; Rahmani Ali Mohamad v PP [2014] 6 MLJ 525). [51] In the present case, we find that several material aspects of the defence were not accorded proper judicial consideration:

The sworn statement of OKT2 (D42) [52] The contents of D42 were plainly exculpatory. OKT2 admitted that the bag did not belong to the Appellant, that he himself had placed it into the Appellant’s vehicle, and that the Appellant had no knowledge of its contents. [53] However, the learned High Court Judge misdirected herself in her treatment of this document, both in relation to its authorship and its probative value. The dismissal of D42 solely on the basis that it was made several years after the event, without a proper evaluation of its contents, was erroneous.

(ii) The Appellant’s cautioned statement (D43) [54] The Appellant’s cautioned statement was consistent with his defence at trial and was raised at the earliest opportunity. His cautioned statement was recorded on the day he was arrested. It constituted an important piece of contemporaneous evidence capable of supporting the defence. Yet, the learned High Court Judge failed to engage with the substance of this statement. There was no meaningful analysis as to whether it was capable of raising a reasonable doubt. This omission amounts to a serious non-direction.

(iii) The testimony of SD2 [55] The testimony of SD2, which materially supported the Appellant’s defence and implicated OKT2, was similarly not evaluated in any meaningful manner. The failure to consider this evidence, which went to the core of the defence, further demonstrates an absence of proper judicial appreciation of the defence case. [56] In our considered view, the cumulative effect of these omissions is that the defence was not fairly and adequately evaluated. This constitutes a misdirection of a fundamental nature, rendering the conviction unsafe.

(C) The defence of “momentary carrier” and absence of knowledge [57] The learned High Court Judge rejected the Appellant’s defence that he was merely a “momentary carrier” without knowledge of the drugs. While it is correct that momentary custody does not automatically negate possession, the critical issue remains whether the Appellant had knowledge of the drugs. In this regard, several features of the evidence merit consideration. [58] First, the bag was placed into the Appellant’s vehicle shortly before his arrest and the bag was in a zipped and closed condition. Secondly, there was no evidence that the Appellant had inspected or opened the bag. Thirdly, the Appellant did not attempt to flee and cooperated with the authorities and lastly, there was no forensic evidence linking the Appellant to the contents of the bag. Lastly and at the risk of repetition, evidence was on record that OKT2 admitted that it was him who had placed the bag in the car driven by the Appellant. [59] We find that these circumstances were consistent with the Appellant’s defence of lack of knowledge and were capable of rebutting the presumption under section 37(d) of the DDA, or at the very least, raising a reasonable doubt. We find that the learned High Court Judge, however, failed to adequately consider whether these factors, taken cumulatively, undermined the inference of knowledge. [60] Having considered the entirety of the evidence we find that the learned High Court Judge misapprehended material evidence relating to the role of OKT2, relied on speculative reasoning unsupported by evidence, failed to undertake a proper judicial evaluation of critical defence evidence and did not adequately consider whether the defence raised a reasonable doubt. To our mind, these errors, whether viewed individually or cumulatively, have occasioned a substantial miscarriage of justice. Conclusion [61] At its core, this appeal turns on whether the conviction of the Appellant is safe. Having subjected the entirety of the evidence to anxious scrutiny, we are unable to so conclude. [62] We find that the learned High Court Judge fell into material error in misapprehending the evidence relating to the role of OKT2, in drawing speculative inferences unsupported by the record, and in failing to undertake a proper and holistic judicial evaluation of the defence. In particular, the omission to consider material defence evidence, including the sworn statement of OKT2, the Appellant’s cautioned statement, and the testimony of SD2, constitutes a serious misdirection. [63] The law is settled that even where a defence is disbelieved, the court must still consider whether it raises a reasonable doubt. That exercise was not adequately undertaken in the present case. Instead, the conviction was reached without a full and balanced assessment of the totality of the evidence. In these circumstances, the cumulative effect of the errors identified has occasioned a substantial miscarriage of justice. The conviction is therefore unsafe and cannot be allowed to stand. [64] Accordingly, the appeal is allowed. The conviction and sentence are set aside, and the Appellant is acquitted and discharged. Dated: 27 March 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS:

Afifuddin Bin Ahmad Hafifi; and

Aina Melina Binti Johan Arif Lim [Salehuddin Saidin & Assoc (Shah Alam)] Counsel for Respondent:

Allan Suman Pillai [Deputy Public Prosecutor